author: McMEANS, J.

text:
    McFARLANE et al. v. WESTLEY et al.
    (No. 7146.)
    (Court of Civil Appeals of Texas. Galveston.
    April 17, 1916.
    Rehearing Denied May 11, 1916.)
    1. Elections &wkey;>270 —Contest— JURISDICTION.
    Under Const, art. 5, § 8, providing that the district court shall have original jurisdiction of contested elections, on the principle of “inclusio unius est exclusio alterius,” jurisdiction to determine ah election contest cannot he conferred by the Legislature upon any other court or tribunal.
    [Ed. Note.- — For other cases, see Elections, Cent. Dig. § 247; Dec. Dig. &wkey;270.1
    2. Drains <&wkey;14(l) — Drainage District — Election Contest — Jurisdiction — Statutes.
    Under Const., art. 5, § 8, touching jurisdiction of contested elections, and Rev. St.; 1911, art. 3050, providing that contested elections for other purposes than the election of officers shall be tried by the district court in the county where the election was held, etc., the district court of a county had jurisdiction of contest of an election for the establishment of a drainage district, despite Acts 32d Leg. c. 118, § 3, providing for contest of the creation of such a district at hearing of the petition therefor before the county commissioners.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 5; Dec. Dig. &wkey;>14(l).]
    3. Statutes <&wkey;158 — Repeal by Implication.
    Repeals of a statute by implication are not favored.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. <&wkey;158.]
    4. Drains &wkey;>.14(l) — Drainage District — Election Contest — Party Plaintiff — Statutes.
    Under Rev. St. 1911, art. 3077, providing that any resident of a county may contest an election, held for any other purpose than the election of an officer, in the district court of such county, and Acts 32d Leg. c. 118, § 24a, providing that no suit can be brought in any court contesting the validity of the formation of any drainage district except in the name of the state, a resident of a county can contest in the district court the validity of an election on the formation of a drainage district; section 24a not .requiring suit to contest the election to be brought in the name of the state.
    [Ed. Note. — For other eases, see Drains, Cent. Dig. § 5; Dec. Dig. <&wkey;14(l)J
    5. Drains <&wkey;14(l) — Drainage District — Election — Right to Vote — Affidavit — Statute.
    Where a resident and taxpayer of a proposed drainage district came to the place of holding an election on the question of its formation, and was refused the right to vote by judges wlio denied that he was a resident of the proposed district, and who would not have permitted him to make the affidavit of residence, required by Acts 32d Leg. c. 118, § 15, had he offered to do so, and would not have permitted, him to vote, had he done so, it was unnecessary for such voter to offer to make affidavit of residence to complete his right to vote.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 5; Dec. Dig. <&wkey;14(l).]
    6. Drains <&wkey;14(l) — Drainage District — Election — Right to Vote — Statute.
    Where one seeking to vote at an election on the question of forming a drainage district, upon being questioned, showed the judge that he did not know whether he resided within the proposed district, and therefore could not have made the affidavit of residence, required by Acts 32d Leg. c. 118, § 15, though as matter of fact he was entitled to vote, the refusal of his ballot was not such a wrong as he can complain of, or such as required the election to be set aside.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 5; Dee. Dig. <S&wkey;14(l)J
    7. Drains &wkey;>14(l) — Organization — Election — Indication of Choice.
    Where a voter at an election on the question of the formation of a drainage district, the ballot being typed “For the drainage district, and the issuance of bonds and levy of taxes in payment therefor,” and “Against the drainage district, and the issuance of bonds and levy of taxes in payment therefor,” did not erase either of the propositions, but wrote, between the two, “Against Ores.,” his ballot was not a sufficient expression of his intention to entitle his vote to be counted, and was properly refused consideration.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. § 5; Dec. Dig. <&wkey;14(l).]
    Appeal from District Court, Ft. Bend County.
    Proceeding to contest an election by J. O. Westley and others against W. I. McFar-lane and others. From a judgment sustaining the contest and ordering a new election, contestees appeal.
    Reversed, and judgment rendered in favor of the contestees.
    Baker, Botts, Parker & Garwood, Cooper & Merrill, and J. P. Parris, all of Houston, and C. I. McFarlane, of Richmond, for appellants. D. R. Peareson, of Richmond, for appellees.
   McMEANS, J.

Under the orders of the commissioners’ court of- Ft. Bend county, an election was held in drainage district No. 2 of Ft. Bend county, Tex., on December 10, 1914-, to determine whether or not said drainage district should be established, and the bonds of said district issued, and tax levied in payment therefor. Said election was held by F. O. Keir as presiding judge (so appointed by the commissioners’ court), assisted by George H. Moore, judge, and J. C. Westley. On December 16, 1914, in due order, the commissioners’ court of Ft. Bend county canvassed the returns of said election, and declared the result to have been 80 votes for and 14 votes against the drainage district, and the issuance of bonds and the levy of tax, and declared said election carried in favor of said propositions.

This proceeding is a contest of said election, instituted in the district court of Ft. Bend county, Tex., by J. G. Westley, Frank Brix, and J. J. McICeever; said contestants giving notice of their intention to contest the election within 30 days after the return day of said election, which notice was in writing and was delivered to the county attorney of Ft. Bend county, to wit, Thos. B. Peareson, within said 30 days after the official result of said election had been declared by the commissioners’ court. Such notice was also served within said time upon W. I. McFar-lane, county judge of Ft. Bend county, and such notice was also served upon W. L. Davidson, assistant county attorney of said county within said 30 days. There was also at the same time delivered with said notice to each of said parties respectively a written statement of the grounds on which contestants relied to sustain such contest. A copy of the notice of contest and of the statement of contestants were filed with the district clerk of Ft. Bend county.

Thos. B. Peareson, as county attorney for Ft. Bend county, within 10 days after being served with said notice and statement of contest, served upon the attorney for contestants his reply thereto, and a copy thereof was filed with district clerk of Ft. Bend county on January 21, 1915. The reply of said county attorney consisted of a general demurrer and a general denial, in form sufficient to require contestants to prove the allegations of their notice and statement. W. I. McFarlane, as county judge of Ft. Bend county, served his reply -to said contest upon contestants’ attorney within 10 days after service upon him of the notice and statement of contestants; said reply consisting of a general demurrer, a number of special exceptions, and special denials of all allegations in contestants’ notice. 1-Iis first amended answer was filed on April 26, 1915, and in so far as questions involved are concerned is substantially the same as the original answer. The statement of the grounds of contest of contestants, which was signed by J. C. Westley, Frank Brix, and J. J. McKeever and duly sworn to, among other allegations contained the following:

“Contestants are resident citizens of Ft.. Bend county, Tex., and at the time of the holding of said election and now own property in the said proposed district subject to taxation. The contestant J. C. Westley, at the time of the holding of said election, resided within the limits of Said district, and he now resides therein, where he has resided for more than 10 years consecutively next before this date. Contestant J. J. McKeever is the husband of Mrs. May Fenn McKeever, who at the time of the holding of said election, and now, was and is the owner of property situated within the limits of said proposed district, which was then and is now subject to taxes proposed to be levied by and in behalf of said district. F. O. Keir, the presiding judge of said election, and George H. Moore, one of the assistant judges, prevented Gus Johnson and Allen Poseley from casting their votes and ballots at said election; they holding and deciding that neither of said parties were entitled to vote at said election, on the ground that said voters did not live within the limits of said proposed district. The said Allen Poseley at the time of said election did reside within the limits of said proposed district, where he had resided for more than two consecutive years before said election, and did in proper manner within the proper time offer to vote at said election, while the said election was being conducted, and while the polls were open for the purpose of receiving votes and ballots in reference to said election; but the said election judges refused to receive the vote of the said Poseley, and the said Poseley did not vote at said election, _ and his ballot was not counted in said election. The said Poseley then and there was a legal and qualified voter in said election, he then owning real and personal property in said district subject to taxation, and he had within the time prescribed by law paid to the tax collector of Ft. Bend county, Tex., the poll taxes for the year 1913, and also for the year 1914. The said Poseley was against the establishment of said drainage district, the issuance of bonds, the levy of tax, and would have voted against the establishment of the district, the issuance of bonds, and the levy of taxes in payment therefor; but as aforesaid, he was prevented by the unlawful and wrongful rulings and actions of said election officers, and was not permitted to and did not vote at said election. The said Gus Johnson at the time of said election did reside, and had for more than two consecutive years next before said election, and did in proper manner and within the' proper time offer to vote at said election, while the said election was being conducted, and while the polls were open for the purpose of receiving votes and ballots in reference to said election; but the said election judges refused to receive the vote of the said Johnson and the said Johnson did not vote at said election and his ballot was not counted in said election. The said Johnson then and there was a legal and qualified voter in said election, he then owning real and personal property in said district subject to taxation, and he had within the time prescribed by law paid to the tax collector of Et. Bend county, Tex., the poll taxes for the year 1913, and also for the year 1914. The said Johnson was against the establishment of said drainage district, the issuance of bonds, and the levy of taxes, and would have voted against the establishment of the district, the issuance of bonds, and the levy of taxes in payment therefor; but, as aforesaid, he was prevented by the unlawful and wrongful rulings and actions of said election officers, and was not permitted to and did not vote at said election. The voter L. J. Jones, who is Lewis Jones, voted at said election against the creating of said drainage district, the issuance of bonds and the levy of said taxes ; but his said vote was not counted by the said election officers, and is not taken into consideration in the returns made thereof. The said Jones at the time of said election had then resided in said district for more than two consecutive years, owned property therein subject to taxation, paid his poll taxes to the tax collector of Et. Bend county prior to February 1, 1913, and was a legal and qualified voter in said election, and his ballot and vote should have been counted against the said proposition. Contestants allege that the failure on the part of said election officers to permit the said Allen Poseley and said Gus Johnson to vote in said election, and the failure to count the vote of the said Jim Holland in said election, renders said election void and of no force. If said voters had been permitted to vote, and if their votes had been counted against the creating of said district, the issuance of bonds, and the levy of taxes, there would have been more than one-third of the votes in said election against the establishment of said district, the issuance of bonds, and the levy of taxes, and less than two-thirds of the voters in favor of said propositions, and said propositions would have failed to carry,’ and the judgment of the commissioners’ court would have declared such failure, and refused to establish the said district, and failed to have authorized the issuance of bonds and levy of taxes.”

The court overruled the general demurrers of McEarlane, to which exception was taken. The court sustained the special exceptions of McEarlane, as contained in the second and fourth paragraphs of his amended answer, to the effect that Brix and McKeever could not maintain the contest, because neither resided within the limits of the proposed district, and dismissed them from the suit, to which ruling the contestants excepted. A trial was had before the court without a jury, and resulted in a judgment that the election was void, because Poseley and Johnson were illegally prevented by Judges Keir and Moore from voting at said election; it appearing that they would have voted against the propositions, and in such event more than one-third of the votes would have been against the propositions.

At the request of Judge McFarlane, the court filed its findings of fact and conclusions of law, which are too lengthy to he set out in this opinion, but which, we think, are correctly summarized by appellants in their brief, as follows:

“(1) That the contest was properly brought within the time allowed by law.
“(2) That the contestant J. O. Westley possessed the legal qualifications necessary to enable him to maintain the contest, but that his joint contestants did not.
‘‘(3) That the answer of the contestee McEar-lane was properly served and filed within the time allowed by law.
“(4) That the election under investigation was properly and legally ordered, due return thereof made by the election officers, and the returns duly canvassed and the result declared by the commissioners’ court of Et. Bend county, as prescribed by law.
“(5) That the returns made by the election officers correctly showed the result of the election as held, and that no illegal votes were in fact cast.
“(6) That the election returns upon which the commissioners’ court declared the result of the election were signed by the sole contestant herein, J. O. Westley, as one of the judges of said election.
“(7) That two voters, Poseley and Johnson, presented themselves at the polls on the day of the election with the intent to vote against the propositions submitted, but were told by the presiding judge that they did not live within the limits of the district and would not be permitted to vote.
“(8) That said two voters did not make or offer to make the affidavit required by law to entitle them to vote. That the voter Poseley would have made the required affidavit, if required to do so, but that Johnson did hot know where the lines of the district were, and consequently could not have sworn that he lived within its limits. That neither of said voters would have been permitted to vote, had he made the affidavit required by law.
“Conclusions of Law.
“(1) That the court had jurisdiction and authority to hear the contest.
“(2) That contestant Westley was not estop-ped by his conduct to question the correctness of the returns signed by him.
“(3) That Poseley and Johnson should have been permitted to vote.
“(4) That, had both said voters been permitted to vote, the result would have been the opposite of that declared by the commissioners’ court.
“(5) That the election was therefore void, and a new one was ordered.”

By his first assignment of error appellants contend that the district court was without jurisdiction to hear and determine the contest of an election for the establishment of a drainage district. The contentions advanced by the propositions under the assignment, in effect, are that, the Legislature having failed by the terms of the act providing for the creation of drainage districts to confer on the district court jurisdiction to determine contests of elections held under the provisions of the act, such jurisdiction cannot be exercised by said courts, unless conferred by the terms of the general law governing election contests, and that the general law under which this contest was brought cannot be construed to confer jurisdiction on the district court to determine such a contest, for the reason that such a construction would be in conflict with the terms of the special enactment by virtue of which such 'election was held, which expressly excludes the exercise by said courts of such jurisdiction.

Section 8 of article 5 .of the Constitution provides:

“The district court shall have original jurisdiction * * * of contested elections.”

On the principle of “inclusio unius est ex-clusio alterius,” jurisdiction to determine election contests cannot be conferred by the Legislature upon any other court or tribunal. In 1895 the Legislature passed a very comprehensive act upon the subject of the contest of elections, which has been brought forward in the Revised Statutes of 1911 as chapter 8 of title 49, which, after prescribing the venue of suits for the contest of election for certain specified .officials, provides by article 3050 as follows:

“Contested elections for other purposes than the election of officers shall be tried by the district court in the county where the election was held, or either of them, if there is more than one such court.”

The remainder of the chapter provides rules of procedure and of evidence in the trial of all election contests. In view of the provision of the article of the Constitution and of article 3050, above quoted, and the chapter referred to, we think there can be no doubt that the district court had jurisdiction in the instant case. Nor do we think that this conclusion is in conflict with the terms of the Acts of the 32d Legislature, page 245, the third section of which reads as follows:

“Sec. 3. Upon the day set by said county commissioners’ court for the hearing of said petition any person whose land would be affected by the creation of said district may appear before said court and contest the creation of such district or contend for the creation of said district, and may offer testimony to show that said district is or is not necessary, and would or would not be of any public utility either sanitary, agricultural or otherwise, and that the creation of such drainage district would or would not be feasible or practicable. Said county commissioners’ court shall have exclusive jurisdiction to hear and determine all contests and objections to the creation of such district, and all matters pertaining to the same, and said court shall have exclusive jurisdiction in all subsequent proceedings of the distinct when organized, except as hereinafter provided, and may adjourn hearing on any matter connected therewith from day to day, and all judgments rendered by said court in relation thereto shall be final, except as hereinafter otherwise provided.”

Manifestly the authority here conferred upon the commissioners’ court was to determine contests as to the creation of drainage districts, to pass upon the question off the necessity for their creation and whether they would be of any public utility, either sanitary, agricultural, or otherwise, and whether practicable or feasible, and not the authority so plainly conferred by the Constitution and statutes on district courts, to determine contests of elections provided for by the drainage act as a prerequisite to the establishment of a valid drainage district. But if the see-' tion could be construed as attempting to confer jurisdiction upon the commissioners’ courts to hear and determine such elections, then, we think, it is in conflict with the provision of the article of the Constitution above quoted, and void. The assignment is overruled.

Under his fifth assignment appellant makes the contention that the contest of an election of the character in controversy can only be brought in the name of the state of Texas, by the Attorney General, on his own motion or upon the motion of some person interested therein, and for good reasons shown. This contention is based upon section 24a of chapter 118 of the Acts of 1911, providing for the creation of drainage districts, which contains this language:

“No suit shall be permitted to be brought in any court of this state contesting or enjoining the validity of the formation of any drainage district created under the provisions of this act, or bonds issued hereunder, except in the name of the state of Texas, by the Attorney General, upon his own motion, or upon the motion of any party affected thereby upon good cause shown.”

It will be observed that the section does not in express terms provide that a suit to contest the election shall be brought only in the name of the State, nor do we think it so provides by necessary implication. The effect of the construction sought by appellant to be placed upon the language used would be to repeal by implication article 3077, Revised Statutes, which reads:

“If the contest be for the validity of an election held for any other purpose than the election of an officer * * * any resident of such county * * * may contest such election in the district court of such county.”

Repeals by implication are not favored. But we do not think that section 24a can be construed as requiring a suit to contest the election to be brought in the name of the state. The language is: “ * * * contesting or enjoining the formation of any drainage district.” Bear in mind that the Legislature had already provided that contests other than the election of officers might be instituted by any resident of the county, etc. We think that when 'the Legislature used the word “formation,” knowing that under existing law it had conferred the power of contesting elections, such as this, upon “any resident,” it meant only the acts necessary to put the machinery in motion and leading up to the formation of a drainage district, and did not intend to include the contest of the election. If it had so intended, it would have been easy and most natural to say so.

The second assignment complains that the court erred in concluding as a matter of law that the voter, Allen Poseley, was wrongfully prevented from voting at said election because of the fact, as found by the court, that Poseley neither made nor offered to make the affidavit required by law to entitle him to vote. The proposition is advanced in this connection that an election will not he held void on account of the refusal of the election officers to permit a qualified voter to cast his ballot, unless such voter has complied with all the legal requirements necessary to entitle him to vote. Section 15 of the Drainage Act requires every person who offers to vote in any election held under the provisions of the act to take the following oath before the presiding judge of the election, viz.:

“I do solemnly swear (or affirm) that X am a qualified voter of-county, and that I am a resident * * * taxpayer of the proposed drainage district voted on at this election and I have not voted before at this election.”

There is no question that Poseley was a qualified voter and entitled to -vote in the election in question. This is an unquestioned finding of the trial judge. The court further found that at a proper time Poseley presented himself at the polls for the purpose of voting, intending to vote against the pending proposition. We quote the further findings of the court on this point:

“As soon as said Poseley so presented himself the said F. O. Keir asked the voter where he lived, and the voter informed him. Thereupon the said Keir announced that the said voter did not live within the limits of said proposed drainage district No. 2, was not entitled to vole, and that he would not be permitted to vote in said election, in which decision the said George H. Moore concurred; but the said Westley said nothing after the said Keir and Moore announced their decision. The said Poseley argued the matter with the said judges, but they did not rescind their decision, but insisted that the said voter could not participate in said election, and thereupon the said voter left without casting his ballot in said election, and did not vote in said election. The said ICeir and the said Moore knew the location of the residence of the said Poseley and were advised by the said Poseley of the exact place where the said Poseley lived and had lived for more than one year immediately preceding the said election. Neither the said ICeir nor the said Moore offered to permit said voter to make any affidavit of any character in reference to his qualifications as a voter, but decided that the said voter was not entitled to vote, without asking or permitting the offering of any proof or affidavit touching such qualifications, and would not have permitted said voter to make any affidavit, had he offered to do so, and would not have permitted him to vote, had he done so. The said Poseley would have made affidavit that he was a qualified voter in Ft. Bend county, Tex., and a resident property tax payor in the proposed drainage district for the proper length of time, and that he had not voted at said election. Tho said Poseley was prevented from voting at said election by the said ICeir and Moore.”

We think that the conclusion of the court attacked in the assignment cannot be gainsaid. The law does not require the doing of futile things. When, therefore, it is conclusively shown that Poseley could and would have made the affidavit, and that the officers of the election would not have permitted Poseley to make the affidavit, had he offered to do so, and would not have permitted him to vote, had he done so, it became wholly unnecessary for him to offer to do so. We think it necessarily follows that Poseley was wrongfully prevented from voting.

The third assignment complains that the court erred in concluding as a matter of law that the voter Gus Johnson was wrongfully prevented from voting in said election, for the reason that the court found as an undisputed fact that the voter did not make or offer to make the required affidavit. Johnson was a qualified voter and entitled to vote in said election, and, liad he been permitted to vote, would have voted against the pending proposition. Johnson presented himself at the polling place at a proper time and offered to vote. We quote from the court’s findings:

“Thereupon said F. O. ICeir asked the said Johnson where he was living. The said Johnson told him the place of his residence, and that he had lived there for a period of more than six months next preceding the time of holding said election. Thereupon the said Keir announced and informed the said Johnson that he (ICeir) knew where his place of residence was, that said residence was not within the limits of drainage district No. 2, that the said Johnson was not entitled legally to vote in said district on account of the fact that the said Johnson did not live within the limits of said district and had not so lived for the next six months next preceding said election, and that the said Johnson would not be permitted to vote in said election. The decision of the said ICeir was concurred in by the said George H. Moore, and the said Westley said nothing after the said Moore and ICeir announced their' decision. The said Johnson argued with the said election officers, and told them that other voters living next to him had voted, and that he thought that if they could vote that he was entitled to vote, but that he did not know exactly where the line of the district was. Notwithstanding this, the said. ICeir and Moore held to their decision, and the said Johnson was not permitted to vote in said election, and did not vote thereat.”

The court further found that the election officers did not request Johnson to make an affidavit showing his qualification as a voter, nor did they offer to permit him to do so, nor did they give him an opportunity to do so, and that they would not have permitted him to vote had he made the affidavit. Johnson's situation was different from that of Poseley, in that the latter knew that he lived in the proposed district, and would have so sworn¡ had he been permitted to make the affidavit, while Johnson did not know whether he lived in the proposed district, and could not have made the affidavit, even had the officers of the election requested him to do so. It was his duty to inform himself before he offered to vote of the boundaries of the district, and whether he lived therein and was qualified to vote, and when, upon being questioned, he showed that he did not know that he resided within the proposed district, and therefore could not have made the affidavit, had he been requested to do so, the election judges committed no wrong against him in refusing his ballot, although as a matter of fact he was entitled to vote. Certainly it was no such a wrong as he can complain of, and none such- as requires the election to be set aside and another ordered.

The returns of the election, the result of which as declared by the commissioners’ court was in favor of the establishment of the drainage district, etc., show that 44 persons voted therein, and that 30 favored and 14 voted against the proposition. If both Poseley and Johnson had voted, they would have voted against the proposition, and the result would have been against the establishment of the district, etc.; and if both had been wrongfully denied the right to vote the election should have been set aside and a new one ordered. But as Johnson was not, in the circumstances detailed, wrongfully denied the right to vote, the denial being in part, at least, due to his inability to show his right to vote, the fact that he did not vote should not be taken into consideration in deciding the question here presented. If Poseley had voted, there would have been a total of 45 votes cast, of which 36 would have been in favor of and 15 against the establishment of the district, and the proposition would have carried by the requisite two-thirds majority.

For the foregoing reasons, we think that the court erroneously entered judgment setting the election aside and ordering a new one. This conclusion obviates the necessity of a discussion of the other assignments of error presented by the appellants.

Appellees, by a cross-assignment of error, assail the action of the trial court in refusing to count the vote of L. J. Jones against the establishment of the drainage district. Jones was a qualified voter, and entitled to vote in said election, and intended to vote against the proposition; but his ballot was not counted either way. The reason his vote, was not counted was this: There was typed on the ballot the following:

“For the drainage district, and the issuance of bonds and levy of taxes in payment therefor.”
“Against the drainage district and the issuance of bonds and levy of taxes in payment therefor.”

In casting his ballot Jones did not erase either of the propositions, but wrote between the two “Against Eres.” We think the ballot as cast was not a sufficient expression of the intention of the voter to entitle his vote to be counted, and the court properly refused to consider it in determining the result of the election.

From what has been said it follows that the judgment of the court below, sustaining the contest and ordering a new election is erroneous, and should be reversed, and judgment here rendered in favor of the contes-tees; and it has been so ordered.

Reversed and rendered.
      <&s»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    LUDTKE et al. v. SMITH.
    (No. 7160.)
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1916.
    On Motion for Rehearing, April 27, 1616.)
    1. Adverse Possession <&wkey;10 — Acquired after Judgment Quieting Title.
    After the termination of an action quieting title and enjoining trespass by defendant, he may nevertheless acquire adverse possession by entering and holding possession for the statutory time.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 58-64; Dec. Dig. <&wkey;>10.]
    2. Appeal and Error <&wkey;719(l) — Necessity op Objections and Assignments oe Error.
    A court of civil appeals has no authority to revise a judgment of the trial court, except on matters distinctly specified by assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968, 2972, 2980, 2981, 3490; Dee. Dig. &wkey;719(l).]
    3. Adverse Possession &wkey;>27 — Evidence —Sufficiency.
    Where the evidence failed to disclose a sufficient description of that portion of land inclosed, or that portion adversely used for pigpens or slaughterhouses, to enable the jury to segregate such tracts from a larger tract, the verdict for plaintiff held to be not against the weight of the evidence.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 121, 122, 652, 664, 684; Dec. Dig. <&wkey;>27.]
    On Motion for Rehearing.
    4. Appeal and Error <®=oS54(2) — Review — Correct Decision on Wrong Theory.
    A proper judgment will not be disturbed merely because based on a wrong conclusion of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3408-3410; Dec. Dig. <S=> 854(2).]
    5. Adverse Possession <&wkey;8¡5(3) — Evidence.
    Evidence examined, and held to_ show that plaintiff’s possession was 'by permission, and that there had been no repudiation of tenancy sufficient to start the statute running, and as a matter of law no adverse possession was shown.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 503, 688-690; Dec. Dig. &wkey;85(3).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action to try title by G. C. Smith, against Rosina Ludtke and others. Judgment for plaintiff, and defendants appeal.
    Affirmed on rehearing.
    Stewarts, R. W. Houk, 'D. E. Simmons, and W. F. Tarver, all of Houston, for appellants. Hunt, Myer & Teagle, of Houston, for ap-pellee.
   McMEANS, J.

This is an action of trespass to try title, brought by G. C. Smith against Rosina Ludtke, the widow, and the other defendants, the children and heirs at law of August Ludtke, to recover the title and possession of 15 acres out of lot 16 and 10 acres out of lot 15 of the Harris & Wilson two-league grant in Harris county. Defendants relied upon the defense of limitation under the 10-year statute, which they pleaded. A trial before a jury resulted in a verdict and judgment for plaintiffs, from which the defendants have appealed. The court charged the jury, in part, as follows:

“With reference to the 10-acre tract, the record evidence introduced before you shows that by reason of a former judgment and injunction proceedings thereunder, the latter of which is still in force, the defendants cannot claim title thereto by limitation, and you will consider this case only with reference to the tract of 15 acres.”

This charge was duly excepted to, and is assailed by appellants’ first assignment of error. The defendants requested the court to give their special charge No. 1, which was refused, and the second assignment is based upon the refusal of the court to give it to the jury, viz.:

“If you believe from the evidence that the defendants and those under whom they claim had and held peaceable and adverse possession (as those terms have been defined in the main charge of the court) of a tract of 10 acres of the lower part of lot 15, being- the same property particularly described in the plaintiffs’ petition herein, and in controversy herein, cultivating, using-, or enjoying the same for a period of more than 10 years preceding the institution of this suit, then you will return your verdict in favor of the defendants for the said 10-acre tract.”

There was evidence sufficient to raise the issue of title in defendants under the 10-year statute of limitations, and the issue should have been submitted to the jury, unless the court correctly ruled that this defense was not available to them by reason of the rendition of a former judgment and the injunction proceedings thereunder.

The history of the former judgment and injunction proceedings referred to, as we gather it from the briefs of the parties, is this: On August 22, 1871, B. O. Franklin and Jas. T. D. Wilson brought suit against August Ludtke for partition of lot 15, and partition was ordered. In the partition the eastern half of lot 15 was decreed to Franklin and Wilson, and the western half to Ludtke. On December 3, 1877, Wilson, alleging that Ludtke was trespassing upon that parcel of land decreed to Franklin and Wilson in the partition suit, brought suit against Ludtke for said parcel, and recovered judgment therefor, and the court issued a perpetual injunction, restraining Ludtke from again trespassing upon that portion of land. In November, 1897, Wilson again sued Ludt-ke for the recovery of the parcel set aside to Franklin and Wilson in the former decree, and recovered a judgment; and under this judgment a writ of possession was issued in favor of Wilson, and executed by the sheriff of Harris county on August 13, 1898, whereby Wilson was placed in possession of the land and the defendants dispossessed. In this last suit Ludtke was again enjoined from ever again trespassing upon the land. Some time prior to this last judgment Glenn M. Harris brought suit against Wilson for an undivided half interest in lot 15, making Ludtke a party defendant. In this suit Ludtke recovered judgment for the western half, which had been partitioned to him in the suit of Franklin and Wilson against Ludtke, and Harris finally recovered judgment against Wilson for 10 acres of the eastern half, which is the land in controversy. Plaintiff Smith deraigned title to the 10 acres by purchase from Glenn M. Harris. Evidence was introduced on the trial tending to prove, and sufficient to raise the issue of, title of the Ludtkes to the 10 acres by actual adverse possession under the 10-year statute begun after the rendition of judgment against August Ludtke in 1898, and after the granting of the injunction and continuing up to the filing of this suit in 1913. In 1909 Ludt-ke was cited for contempt for violating the injunction by again entering upon the land, but no hearing was ever had thereon and no orders entered therein. We may assume, for the purpose of this opinion, that as Harris was the joint owner with Wilson of the eastern half of lot 15, the judgment recovered by Wilson against Ludtke therefor inured to the benefit of Harris as a joint tenant, and also inured to the benefit of the plaintiff Smith by reason of his purchase from Harris. The question then remaining to be determined is, Did the recovery of the land by Wilson from Ludtke in the various suits mentioned, and the issuance of the injunctions referred to, operate to prevent the running of limitations in favor of Ludtke upon his thereafter entering into the actual possession of the land notwithstanding the judgments and injunctions? We think we must answer this question in the negative. It has often been held that a vendor, by executed conveyance, who remains in possession of land, claiming it as his own, without notice other than possession, may acquire against his vendee a title by limitation. Smith v. Montes, 11 Tex. 24; Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340; T. & P. Ry. Co. v. Maynard, 51 S. W. 255. In Pendleton v. McMains, 32 Tex. Civ. App. 575, 75 S. W. 349, in which a writ of error was denied, it is held by the Court of Civil Appeals of the Fourth District that adverse possession of land for 10 years establishes a title against one whose title is derived from a judgment, though the adverse possessor be the defendant in such judgment. In writing the opinion of the court Judge Fly said:

“More than 13 years had elapsed after the rendition of the judgment before this suit was instituted, and during all those years defendants in error had been in possession of the land, and claiming title to it against the world. There is no peculiar sacredness in a title to land obtained through a judgment that lifts it out of the scope and purview of statutes of limitation, and, if the possession be adverse for 10 years, whether it be by the defendant in the judgment or any cne else, it will perfect a title.”

This language is quoted with approval by' our Supreme Court in Thomson v. Weisman, 98 Tex. 174, 82 S. W. 503. It is clear, then, it seems to us, that notwithstanding the judgment against him for the 10 acres in question, if August Ludtke thereafter re-entered into the actual possession of the tract, claiming it as his own, and that he and those who claim under him cultivated, used, or enjoyed the same for the full period of 10 years after the rendition of the last judgment in favor of Wilson and against him, such possession ripened into a title which could be successfully interposed against plaintiff in this suit. It does not appear that the injunction was ever enforced, or that through it August Ludtlce, or those claiming through him, were ever dispossessed. We think, in view of this fact, that the mere existence of a judgment granting an injunction no more prevented the possession of the i/udtkes from being adverse than did the judgment against him for the title and possession. And it makes no difference that in 1909 Ludtke was cited for contempt for disobeying the injunction, since no further action was taken in that matter, nor any order entered therein. Nor did the injunction have the effect of placing the land in cus-todia legis, as in the case of McAllen v. Crafts, 139 S. W. 41, where the possession asserted as adverse was taken and held under a writ of sequestration. We think, therefore, that the court should have submitted the defense of 10-year limitation pleaded by the defendants, and that the failure to do so was error which requires a reversal of its judgment.

The third assignment complains that the court erred in giving the plaintiffs’ special charge No. 3. Thus far the discussion has been in reference to the 10 acres out of lot 15. The special charge was asked with reference to the 15 acres out of lot 16. No objection was made to the giving of the special charge in the defendants’ motion for a new trial, nor was the giving of it assigned as error, either in the motion for a new triai or any assignment of error filed in the court below. This court has no authority to revise a judgment of the trial court except on a matter distinctly specified by an assignment of error. Deutschman v. Ryan, 148 S. W. 1140. The assignment cannot be considered.

The fourth assignment complains that the verdict of -the jury as to the 15 acres out of lot 16 is contrary to the evidence, in that the undisputed evidence shows that the defendants had adversely occupied, used, and enjoyed certain parts of the 15-acre tract for inore than 10 years before the filing of this suit, by, a pigpen and slaughterhouses and substantial inclosures, and that they were entitled at least to the parts so actually inclosed by such improvements. The evidence fails to disclose any sufficient description of (he portion .of the tract adversely used for a pigpen,' slaughterhouses, or that portion claimed to have been inclosed, to enable the jury to segregate such portions from the larger tract. We overrule the assignment.

The judgment in favor of the plaintiff for the 15-acre tract is affirmed, and because of the error indicated, the judgment in favor of plaintiff for the 10-acre tract is reversed, and the cause remanded for further proceedings in accordance herewith.

Affirmed in part. Reversed and remanded in part.

On Motion for Rehearing.'

Upon further consideration we conclude that we were in error in holding that the evidence was sufficient to raise the issue of title in defendants to the 10-acre tract under the 10-year statute of limitations, and in further holding that that issue should have been submitted to the jury. While we cannot agree with the learned trial judge in the view upon which he instructed a verdict as to this tract, we do believe that a peremptory instruction in favor of appellee was pn'operly given. It has been often held that, where a judgment has been properly entered for a party, the fact that it is based upon a wrong conclusion of law is immaterial. As showing the ground upon which our conclusion is based that the evidence was insufficient to raise the issue, we here set out the most material parts of the testimony of the witnesses whose testimony was relied upon to prove it. W. F. Ludtke, witness for appellants, testified on direct examination:

“In 1903, in the spring, I fenced that 10-acre tract, just that way, and kept my cattle in it.”

On cross-examination he testified:

. “I put that fence there about 1903. The fence I am speaking about is the 10-acre tract. I fenced that land for a man named II. P. Hub-hard, and I told Hubbard, ‘This is my father’s land and my mother’s land; we own this land.’ He says, ‘That is nothing here or there; fence it.’ and I fenced it, and there has been nobody come around and asked for a nickel of rent at all, and we have been in possession of it ever since. I began to claim it for my own aside from any interest my father or mother claimed in there in about 1902. In 1902 I claimed the whole of it. 1 do not know who I claimed against. My father was living until 1908. As to the title to the 10-acre tract, I will say that we have been in possession of it, and I put a fence there. I also claimed that I fenced it and had been in possession of it for Mr. D. P. Hubbard, who was going to buy it from Mr. Harris. I told him at the time, I said, ‘This is my father’s property.’ ‘Well,’ he said, ‘you fence it, because I am not asking you whose land it is.’ I told him I would fence it for so much money. I was not claiming any individual interest myself; my father was then claiming it. That was before my father’s death. The other children were not claiming this 10-acre tract themselves. My father was still living when I fenced it in. 1903. My father was claiming that land, and I told Mr. Hubbard of that fact. After I fenced this land I began claiming this land for myself at this time, which might have been a month or so after. He told me (meaning Hubbard), T am not able to pay you for doing the work until after getting through with my troubles, and you use the land,’ and I have been using it ever since. I went into possession under that sort of arrangement. My father -was still claiming that land when I went into possession. I might have been claiming against my father, but my father never told me to get off of it. Mr. Hubbard also told me to use it and lets me use it yet. I did not buy any of that property down there. I did not buy any of it from my father. I did not buy any of it from Mr. Hubbard. I just thought Mr. Hubbard was good enough to let me stay in possession of that property, and that, it would be all right. There is no use to buy property if you do not have to pay for it. I made this arrangement with Mr. I-Iu'bbard in the early part of 1903. The way I .fix that date is that I had just moved down there to the old place on this piece of land here, right about in here (Boyal addition); that is the reason I got the date fixed down. It was just about the date I got married, maybe about a year after I got married. As to this arrangement or agreement with Mr, Hubbard, he came down there and a man named Sullivan. I guess he was a real estate man — I would know him if I saw him — and he said, ‘Well, Mr. Hubbard is going to buy that 10 acres of ground here in the bend; do you know where it is?’ And I said, ‘Les, sir; I know where it is.’ ‘A man 'by the name of Hanna surveyed that land; it belonged to my father and mother.’ Mr. Hubbard said, I do not care who it belongs to. I am giving $10,-000 for it, and what will you fence it for? And I put my price and told him I would fence it for so much, and I fenced it, and then I went back to Mr. Hubbard and said, T would like to get my money,’ and he said, ‘No; I cannot pay, but wait and stay in possession of the. land until I come back from the north, and I will pay you for the whole and straighten up the matter. He came back, and I sued him for the money and got my money all right, and I stayed in possession of the land and used it and kept my cattle in there, and after that I used it straight on. Mr. Hubbard never did come back to collect rent from me, and nobody else asked, me for any rent since that time. My father did not quitclaim that property just as soon as I went into possession of it for Mr. Hubbard. I have a quitclaim from my father to me and Pete Ludtke. As to whether my father quitclaimed that land after I went into possession for Mr. Hubbard, in those days he was feeble and could not g'et around hardly at all. He was very old when he died. I told my father about getting into possession for Mr. Hubbard, and he said I should not have fenced it. He said, ‘What made me fence it?’ And I said I might as well take the money as anybody else. He (meaning August Ludtke) did not permit me to use it then; I used it on my hardness. My father did not use it at the same time. Mr. Hubbard did not tell me to stay off, he let me come in, and I am there yet. I stayed in possession of it, and I used it for myself and my father and you too, and Mr. Hubbard or anybody else.”

On redirect examination the witness W. E. Ludtke testified:

“Speaking of this map and by its identifications, the fence that I 'built in 1903 for D. P. Hubbard is shown on this map by the letter ‘A.’ ”

E. E. Westergreen testified:

“I know that this 10-acre tract has been fenced. It was fenced in 1903, and part of it is there now, part of the fence is there now — only it is down.”

On cross-examination the .witness Wester-green testified:

“I said that this 10-acre tract down there was fenced about 1903. W. F. Ludtke fenced it; he got the contract, I was told, from this fellow Herbert (meaning Hubbard). He put the fence up there for Mr. Herbert.”

P. P. Ludtke testified:

“The fence A, being a fence running north and south down to the bend in the bayou, was placed there in 1903. It stayed there about 6 or 7 years. W. E. Ludtke put that fence there.”

On cross-examination he testified:

“No, sir; my father did not put a fence on this 10 acres; my brother, W. E. Ludtke, did. He did it in 1903 for a man by the name of Hubbard. I never did see tlie man in my life. I know only what my 'brother told me. I know that W. E. Ludtke fenced the land for Hubbard. He told me be went into possession under Mr. Hubbard. Yes, sir; he told me all about it. This 10 acres was fenced up for 7 or'8 years.”

It will be seen from the testimony of said witnesses that the only actual possession held by any of the Ludtkes was under and by permission of Hubbard, and there was no such repudiation of tenancy under Hubbard by W. F. Ludtke or of any'of the other appellants proved as was sufficient to start the statute to running in their favor. Certain detached and loose expressions of these witnesses, construed by themselves and not in connection with their testimony above set out, might indicate an actual adverse possession and claim by them, but their testimony, 'when construed as a whole, shows that the land was fenced by W. E. Ludtke for Hubbard, and afterwards occupied by him with Hubbard’s consent, and not adversely to Hubbard or any one else. We think, therefore, that the court was authorized to peremptorily instruct a verdict as to the 10 acres upon the view that adverse possession by the Ludt-kes was not shown, and that the judgment against them, although based upon an erroneous conclusion, should not be disturbed.

Affirmed.
      <g^aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WADTHALD, J.

text:
    CONTINENTAL OIL & COTTON CO. v. STEELE.
    (No. 563.)
    (Court of Civil Appeals of Texas. El Paso.
    April 27, 1916.
    On Kehearing, May 25, 1916.)
    1. Vendor and Purchaser <&wkey;95(l) — Extension — Right to Rescind.
    Land was sold, reserving a vendor’s lien to secure notes, and the purchaser conveyed 6 acres to defendant for a recited cash consideration of $90, and thereafter conveyed to another all of the lots, except the 6 acres first conveyed, and the last purchaser assumed the notes and entered into an extension contract with the first vendor, by which the time of the payment of the notes was changed and the rate of interest increased, and thereafter such vendor transferred the notes to plaintiff’s transferror, and the second purchaser conveyed all except the 6 acres to another defendant. Held, that the extension of payment did not destroy the vendor’s right to rescind the executory contract for the sale of the 6 acres.
    (Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 158; Dee. Dig. <&wkey;> 95(1).]
    2. Appeal and Error <&wkey;750(7) — Judgment —Assignment of Error.
    In a suit with counts in trespass to try title and for the enforcement of a vendor’s lien, where the assignment was directed only to the vendor’s right to rescind, the judgment, granting a rescission, rather than a foreclosure, could not be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3074; Dec. Dig. c&wkey;>750 (7).]
    Error from District Court, Jones County; John B. Thomas, Judge.
    Suit by J. J. Steele against the Continental Oil & Cotton Company and others, with count in the form of trespass to try title and a count for the foreclosure of a vendor’s lien. Judgment against ttie Continental Oil & Cotton Company, and it brings error.
    Affirmed.
    Hardwicke & Chambers, of Abilene, for plaintiff in error. Walter S. Pope, of An-son, and Speer & Brown, of Ft. Worth, for defendant in error.
   WADTHALD, J.

Defendant in error filed his petition, consisting of two counts, against W. B. and G-. W. Ferrell, J. A. White, J. L. Tuckness, Bert Driver, A. J. Hill, and plaintiff in error. The first count is in form of trespass to try title to recover lot No. 30 of Berry & Coggin subdivision, containing 150 acres, it being alleged that 6 acres of same was standing, in the name of plaintiff in error and the balance of the tract was standing in the name of said two Ferrells, and alleging entry by Tuckness, Hill, and plaintiffs in error on the 6-acre tract and that the other defendants entered upon the balance of the lot No. 30. The second count alleged that in 1905 Berry & Coggin sold lot No. 30 to Tuckness, reserving the vendor’s lien to secure seven notes for $157.50 each, three other notes of like amount having been also given and paid; that Tuckness conveyed the 6 acres to plaintiff in error for a recited cash consideration of $90; that thereafter Tuckness conveyed to White all of lot No. 30 except the 6 acres conveyed to plaintiff in error, White assuming the seven notes; that thereafter White, “the then owner of lot No. 30,” entered into an extension contract with. Berry & Coggin by which the time of the payment of said seven notes was changed and the rate of interest increased. The petition then declares upon the extension agreement; that after such extension agreement Berry & Coggin transferred said seven notes to J. B. Wilson, “together with the respective liens securing same”; that defendant in error became the owner tof said seven notes and the lien, securing them from Wilson; that White conveyed all of the land except the said 6 acres to the two Ferrells; that Hill was a tenant on the 6 acres, and Driver was asserting some claim under the Fer-rells.

Hill disclaimed. Plaintiff dismissed as to White, Driver, and Tuckness. Plaintiff prayed for his debt, interest on notes at the rate they bore until the making of the extension agreement, and the increased rate of interest thereafter, attorney’s fees, etc., and for a foreclosure of the lien expressed in the notes on all of lot 30, including the 6 acres in controversy. Plaintiff in error pleaded not guilty, disclaimed as to all the land except as to the 6 acres, denied specifically each paragraph except such facts as were admitted, alleged that the deed to it to the 6 acres from Tuckness was for a cash consideration of $90, with covenants of warranty, with no reference to the said notes of Tuckness to Berry & Coggin, alleged the registration of its deed and that White, in his deed from Tuckness to the 144 acres, specially assumed the payment of the Tuckness seven notes to Berry & Coggin. Plaintiff in error pleaded the extension agreement set out in defendant in error’s petition, changing the time of payment of the notes for an increased rate of interest, etc., and Wilson’s knowledge, actual and constructive, of all the facts, and that by reason of the facts pleaded the said 6 acres has been released from the said notes, but that, in the event the 6 acres had not been released, the 144 acres should be first sold, etc.

Defendant in error, by supplemental petition, after certain exceptions and admissions, prayed judgment for the title and possession, and writ of restitution as to the 6 acres. Trial was had without a jury. After reciting the dismissal as to White, Tuckness, and Driver, judgment by default was rendered against Hill for the possession of the 150 acres, judgment by default against the two Ferrells for the 144 acres of lot 30, and that defendant in error recover all title and possession of plaintiff in error of the 6 acres.

Plaintiff in error presents one assignment of error being its motion for new trial. Omitting the formal parts, we copy the one and only ground in the motion, which reads as follows:

“The judgment of the court is contrary to law in so far as it affects the said six acres in controversy, because the undisputed facts show that plaintiff’s vendor’s lien had been waived on the 6 acres and that plaintiff had no lien thereon, and because the undisputed facts show that the superior title originally vested in Berry & Coggin, in so far as the 6 acres are concerned, was lost by reason of a change and substitution of the vendor’s lien obligation. And by reason of the conveyance to this defendant of the 6 acres of land in controversy, the subsequent transaction between the parties waived the vendor’s lien as against the 6 acres in controversy, and thereby no superior title remained, in Berry & Coggin, or their assigns.” .

Plaintiff in error, under this assignment, presents 10 propositions. The notes were unpaid and plaintiff in error made no offer to pay them, or any portion of them. Defendant in error owned the seven unpaid notes at the time of filing his suit and at the trial, and had also secured from Berry & Coggin the superior title to the 6 acres of land in controversy. The contention of plaintiff in error is that the extension of the date of the payments of the notes waives or destroys the vendor’s lien and his right to rescind the contract of sale.

The extension contract referred to in the assignment is as follows:

“The State of Texas, County of Taylor.
“Whereas, by deed dated December 9, 1905, recorded in the deed records of Jones county, in Book 32, p. 246, George S. Berry and T. J. Coggin, did convey to J. L. Tuckness the following real estate situated in Jones county, Texas: All of lot No. 30, containing 150 acres, as shown by map of the Berry & Coggin subdivision of the Robinson pasture, said map recorded in Book 14, page 242 of the deed records of Jones county; and whereas, said deed retains a vendor’s hen in favor of George S. Berry and T. J. Coggin to secure the payment of ten notes of even date with said deed, each for the sum of $157.50, executed by J. L. Tuckness to Geo. L. Berry and T. J. Coggin, said notes maturing on or before December 1st, 1907, to 1916, inclusive, respectively; and ■whereas, the property now belongs to J. A. White; and whereas, the said land, together with the various other lands comprising the Robinson pasture, was and is subject to a vendor’s lien in favor of D. H. Trent, said vendor’s lien note amounting to $35,000, besides interest; and whereas, it is the desire of all of the parties concerned to secure a release of the said D. H. Trent vendor’s lien note and it is also the desire of the parties to extend the payment of the unpaid notes so executed by J. L. Tuckness to Geo. S. Berry and T. J. Cog-gin:
“Now, in consideration of the premises, it is agreed between the said Geo. S. Berry and T. J. Coggin, of the first part, and the said J. A. White, of the second part, as follows: The said Geo. S. Berry and T. J. Coggin will at once procure a proper release releasing all of said land from the D. H. Trent vendor’s lien. The last seven of the ten notes of $157.50 each shall all mature on June 1, 1914, and shall bear interest at the rate of 9 per cent, per annum, from January 1, 1909, interest payable on December 1st of each year, with the exception of the last installment of interest, which shall be payable June 1, 1914, and a failure to pay any installment of interest upon the said seven notes, or any of them, shall at the option of the holder thereof, mature all of said notes, and the vendor’s lien securing the said seven notes shall continue as to secure the said notes, with the time of maturity so changed and with the interest so changed to 9 per cent, per annum, and the vendor’s lien securing said notes shall be a first lien on the said land and any other unpaid notes executed for the payment of said land by said J. E. Tuckness to said Geo. S. Berry and T. J. Coggin shall constitute a second lien, and shall be subject to the lien securing the last seven notes, the maturity and interest rate of which is hereby changed. Executed this 1st day of June, 1909.
“[Signed] J. A. White.
“Mrs. J. A. White.
“Geo. S. Berry.
“T. J. Coggin.
“Witnesses:
“T. S. Wallace.”

This agreement was duly acknowledged and recorded on the 30th day of September, 1909. Tuckness conveyed the 6 acres of land in controversy to plaintiff in error on the 3d day of August, 1906, for a cash consideration of $90, and the deed was recorded in 1907. The deed made no mention of the outstanding notes or the lien. Tuckness conveyed all of lot 30 to White, except the 6 acres on April 10, 1909, reciting a cash consideration paid and the assumption of the payment of the Tuckness notes, including the notes sued on. The first portion of the assignment, stating that the judgment was contrary to law, because the undisputed facts show that the lien on the 6 acres had been waived, and that the plaintiff had no lien thereon would he too general a statement to he considered, but taken in connection with the next succeeding statement, “because the undisputed facts show that the superior title originally vested in Berry & Coggin in so far as this 6 acres is concerned, -was lost by reason of a change and substitution of the vendor’s lien obligation,” points out, as we take it, the contract between White and Berry & Coggin, above quoted, as being the instrument by which the superior title is alleged to have been lost to plaintiff in error, and also as being the “subsequent transaction between the parties” referred to in the last sentence of the assignment, as there is no other transaction between the parties shown in the record that could possibly be construed as even remotely bearing upon the question of a waiver of the right of the vendors or their assigns to rescind the contract of the sale of the 6 acres.

The question then is presented: Did the fact of the extension of payment by the contract between white and Berry & Coggin, above set out, made subsequent to the conveyance of the 6 acres by Tuckness to plaintiff in error, have the effect to destroy the right of Berry & Coggin to rescind the ex-ecutory contract for the sale of the 6 acres? We believe that question is answered in the negative in the ease of Lanier v. Foust et al., 81 Tex. 186, 16 S. W. 994, by the Supreme Court. True, in the instant case, there had been no default on the notes at the date of the extension contract, but we do not think that a default is necessary to an application here of the principle there stated. The White and Berry & Coggin contract, complained of in the assignment, increased the rate of interest on the notes from 8 to 9 per cent. Did that fact destroy their right to rescind as to the 6 acres? If it had the effect to destroy the lien and the right of foreclosure, it still might not have destroyed the right to abandon the contract of sale, and rescission for nonpayment. Plaintiff in error, not being maker, indorser, or surety on the notes, was not personally liable thereon. It would seem inequitable not to pay or offer to pay for the land, remain in possession, and by reason of the contract, to which it was not a party, claim that the owner of the superior title could neither recover the land nor the purchase price. There is nothing in the contract to indicate that Berry & Coggin intended by the contract to waive the lien, hut the contract, by its terms, carried the lien forward to the new date for payment. The assignment does not point out any special feature or provision of the contract, which it is claimed would have the effect to waive the lien or destroy the superior title in plaintiff in error or in another, and we are of the opinion that the contract does not have the effect to do either. If the contract destroyed the right of foreclosure, plaintiff in error could not now ask that a foreclosure be had. A waiver of the lien and right of foreclosure does not necessarily destroy the superior title in the vendor and his right to recover the property.

The assignment does not complain of the failure of the judgment to order the sale of the 144 acres first. It is directed solely to the proposition that the right to rescind and the lien as to the 6 acres were lost by reason of the extension contract between White and Berry & Ooggin. There being no assignment upon this phase of the case, we cannot reverse the judgment, granting a rescission rather than a foreclosure, with direction that the 144 acres be first sold.

Finding no error, the judgment is affirmed.

On Rehearing.

In plaintiff in error’s motion for a rehearing our attention is called to an error in our statement that, “in the instant case, there 'had been no default on the notes at the date of the extension contract.” An examination of the record shows that notes 1, 2, and 3 were then past due, and we mate this correction so as to conform to the facts.

With this correction made, the motion in other respects is overruled.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BEVY, J.

text:
    SOUTHERN TRACTION CO. v. REAGOR et al.
    (No. 1626.)

    (Court of Civil Appeals of Texas. Texarkana.
    May 3, 1916.
    Rehearing Denied May 25, 1916.)
    1. Carriers >&wkey;320(S) — Passengers — Injuries — Question eob Jury — Taking up Passengers.
    Whether a duty arises for employes to assist passengers to hoard a car is for the jury, upon consideration of all the circumstances.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1167; Dec. Dig. <@i=320(8).]
    2. Carriers <&wkey;320(8) — Op Passengers — Injuries — Sufficiency of Evidence — Taking up Passengers.
    In an action for injuries to a child boarding street car with its mother, evidence held sufficient to warrant a finding that it was the duty of the conductor to assist the mother and child in boarding the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1167; Dec. Dig. <@=>320(8).]
    3. Carriebs <&wkey;287(4) — Of Passengers — Care in Taking up Passengers.
    Where the carrier, acting through its conductor in the scope of his employment, undertakes to assist a passenger to board a car, it is bound to employ the highest degree of care in doing so.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1157, 1158; Dec. Dig. <@=>287 (4)J
    4. Carriers <@=>320(30) — Of Passengers — Actions for Injuries — Questions fob Jury-Proximate Cause.
    In an action for injury to a child boarding a street car and being assisted by the conductor, the question whether the conductor’s negligent assistance was the proximate cause of its injury was for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1248; Dec. Dig. <@=>320(30).]
    5. Appeal and Error <&wkey; 1/027 — Review-Harmless Errorj — Pleading.
    Error in overruling a plea of limitation to certain damages in an action for personal injuries was without injury to defendant, where the instructions did not authorize recovery for such damages, and no such damages were recovered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. <&wkey;1027.]
    Appeal from District Court, Ellis County; F. D. Hawkins, Judge.
    Action by Edward Reagor, by next friend, and another, against the Southern Traction Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Mrs. Reagor, with her boy Gordon, aged about 4V2 years, and her boy Edward, aged about 22 months, were at appellant’s regular station .on Commerce street, in Dallas, for the purpose of taking passage on the inter-urpan car to Waxahachie. The car reached the station and was stopped. Mrs. Reagor, with Edward in her arms and Gordon led by Mrs. Reagoris sister, came to the rear end of the car, where passengers boarded it. The conductor, standing near the steps, reached forward and took the child Edward from its mother’s arm and put the child on the platform of the car, and then turrted to assist the mother to the car steps. At the moment the conductor turned to assist the mother to board the car Edward fell down the steps of the car to the platform of station, injuring his left hip.
    The suit is by Edward, by next friend, and also by the father in his own behalf. The petition alleged that the proximate cause of the injury was because the conductor “negligently and carelessly so placed the child on said platform of the car that the child was in a dangerous and unbalanced and inclining position and posture, and in such position that the said child could not get balanced without the assistance of said employs of defendant or some other able-bodied person, which assistance said employs negligently failed to render said child.” The appellant company denied the allegations, and pleaded that the injuries from which the child is suffering were due to other and different causes than the fall from the car.
    The case was submitted upon special issues, and judgment was entered by the court in appellees’ favor in accordance with the findings of the jury. The jury made the following findings of fact: That the conductor, in assisting the child Edward on the car, set him down on the platform of the car in an insecure manner, with his heels not on the platform of the car, and withdrew the support of his hands from the child before it was properly balanced; that this act of the conductor was negligence, causing the child to fall to the ground and be injured; that the falling of the child to the ground was not an accident; that the fall from the car platform to the depot platform was the proximate cause of the diseased condition of the child’s hip as shown in the evidence; and that the diseased or dislocated condition of the child’s hip is not the result of tubercular affection. As there is evidence to' support these findings by the jury, the same are here adopted. The evidence sustains the verdict as to the amount of damages awarded.
    J. B. Gammon, of Waxahachie, and Tem-pleton, Beall & Williams, of Dallas, for appellant. Supple & Harding and Will Hancock, all of Waxahachie, for appellees.

       Application for writ of error pending in Supreme Court.

   BEVY, J.

(after stating the facts as above).

By the first and second assignments of error appellant contends that actionable negligence may not, in the facts of this case, he predicated upon the act of the conductor in undertaking to place the child upon the car platform. As to whether a duty arises for the employés of the railway company to assist passengers to board the car is a question for the determination of the jury upon the consideration of all the circumstances in the case. Railway Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308; Railway Co. v. Buchanan, 31 Tex. Civ. App. 209, 72 S. W. 96; Hanlon v. Railway Co., 187 N. Y. 73, 79 N. E. 846, 10 L. R. A. (N. S.) 411, 116 Am. St. Rep. 591, 10 Ann. Cas. 366. The duty to furnish assistance might arise under special circumstances. McGovern v. Interurban Ry. Co., 136 Iowa, 13, 111 N. W. 412, 13 L. R. A. (N. S.) 476, 125 Am. St. Rep. 215. Here a mother and her two small children presented themselves for transportation on appellant’s car, and the evidence is undisputed that the conductor assisted one of the children to the platform of the car. The conductor furnished the assistance for the reason given in his testimony as follows:

“In placing the child upon the platform my purpose was to assist passengers to get on the car. * * * I took the child to assist it and its mother on the car.”

And as to whether the conductor negligently placed the child upon the car platform the evidence was conflicting. The evidence in behalf of the appellees would show that the conductor placed the child on the car platform with its feet only partially upon the platform, and that as he withdrew the support of his hands the child immediately fell backward down the steps of the car. The conductor himself, it would seem, concluded that the situation was such as to m'ake it necessary and proper for him to furnish assistance and to take the child from its mother’s arms and place it on the car platform. It is believed that there is sufficient evidence to authorize the jury to find that the situation was such as to warrant the conductor in furnishing assistance to the child and its mother in getting upon the car.

By the third assignment of error it is contended that the responsibility of the company for the conductor’s negligence is not to be measured by “that high degree of care which a very prudent and cautious person would exercise under the same circumstances,” as charged by the court,' but only by ordinary care. It is believed that where, as here, the company, acting through its conductor in the scope of his employment, undertakes to assist a passenger on board the car, the passenger had the right to rely on the careful performance of such undertaking, and may recover of the company for injuries caused by the failure of such employe to use the highest degree of care, as was charged by the court. Railway Co. v. Wolf, 40 Tex. Civ. App. 381, 89 S. W. 778; Railway Co. v. White, 22 Tex. Civ. App. 424, 55 S. W. 593; Railway Co. v. Finley, 79 Tex. 88, 15 S. W. 266; Railway Co. v. Wortham, 73 Tex. 25, 10 S. W. 741, 3 L. R. A. 368; Railway Co. v. Kennedy, 12 Tex. Civ. App. 654, 35 S. W. 335.

It is contended under proper assignments of error that the proximate cause of the injury to the child’s hip were intervening agencies independent of the fall. In this respect the instant case is dissimilar in facts to the case of Traction Co. v. Nennej', 178 S. W. 797. And it is believed that the state of the evidence is such as to make the question of proximate cause one for the jury, whose decision in that respect must, it is concluded, be sustained. Therefore assignments of error numbered 4, 5, 6, and 14 are overruled.

By the thirteenth assignment of error it is contendí 1 that the court erred in overruling the plea of limitation to damages for hernia set up for the first time more than two years after the date of the injury. This error is without injury to appellant; for the charge did not authorize the father to recover compensation except as arising from dislocated hip and consequent shortening of the leg of the child, and the father did not recover anything on account of alleged hernia.

There is evidence to support the finding of the jury that the fall of the child was not an accident, and the sixteenth assignment of error is therefore overruled.

The remaining assignments of error have been considered, and the conclusion is reached that reversible error is not presented; they are therefore each overruled.

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


author: BROOKE, J.

text:
    TEXAS SOUTHEASTERN RY. CO. v. BROWN.
    (No. 102.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 23, 1916.)
    1. Justices oe the Peace <S=>90—Pleading.
    Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 2326, providing that pleadings in justices’ courts shall be oral, but a brief statement thereof may be noted on the docket, if from all that is stated, oral or written, the court can ascertain what rights plaintiff asserts or what defense defendant interposes, the pleading is sufficient.
    [Ed. Note.—-For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. t§^90.]'

      2. Costs <&wkey;173(l) — Attorney’s Pees Under Statute.
    By provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2178, to be entitled to attorney’s fees as costs plaintiff must establish Ms claim, and obtain judgment “for the full amount thereof, as presented for payment.”
    [Ed. Note. — Por other cases, see Costs, Cent. Dig. § 688; Dec. Dig. &wkey;173(l).]
    Appeal from Angelina County Court; John P. Robertson, Judge.
    Action by Henry Clay Brown against the Texas South-eastern Railway Company. Prom a judgment for plaintiff, on appeal from a justice, defendant appeals.
    Reformed and rendered.
    R. E. Minton, of Groveton, for appellant. Sam R. Sayers and T. W. Jordan, both of Dufkin, for appell-ee.
   BROOKE, J.

This suit originated in the justice court of Angelina county, wherein the plaintiff, who is appellee herein, sued the appellant for the value of a horse alleged to have been killed about July 2, 1914, and the value of one hog alleged to have been killed about October 10, 1914, and for $20 attorney’s fees, total amount sued for being $165. There was a judgment rendered in the justice court in .favor of the defendant, and the plaintiif appealed to the county court, in which said court a judgment was rendered in favor of the plaintiff for $125, the value of the horse sued for, and $20 as attorney’s fees, and from this judgment arises this appeal.

The appellant assails, by its first assignment of -error, the judgment rendered by the court below, and claims that there is a fatal variance between the pleadings and the proof upon the trial of said case. The plaintiff’s pleadings, Both oral and written, are as follows:

“Suit upon a/c for $155.00 of date * * * filed 16th day of March, 1915. Citation issued 16th day of March, 1916. For one horse killed by Deft. Co. about July 2nd, 1914, value $126.-00. One hog killed by said Co. about Oct. 10th, 1914, value $10.00. Reasonable atty. fee $20.-00. Total $155.00.” (This is from statement of pleadings as shown by the transcript of the justice court.)

Citation issued out of the justice court and served upon the defendant company was as follows:

“For the sum of $155.00 due upon account for one horse killed by cars & locomotive of said Co. July 2nd, 1914. Also one hog killed by the cars & locomotive of said Co. on October 10th, 1914. Horse valued at $125.00; hog valued $10.00. Also attorney fees $20.00. Total $155.-00.”

The account filed was as follows:

“Texas Southeastern Railway Co. in account with H. C. Brown. July 2nd, 1914. To one horse killed by the cars and locomotives of said Co. $125.00. October 10th, 1914. To one hog killed by the cars and locomotives of said Co. $10.00. To reasonable atty. fee $20.00. Total $155.00.”

Article 2326, Vernon’s Sayles’ Texas Civil Statutes, reads as follows: I

“The pleadings in the justices’ courts shall be oral, except where otherwise specially provided; but a brief statement thereof may be noted on the docket.”

Under the said article, it has been held that the fullness and particularity required in written pleadings are not necessary in the oral statements in the justice court. I. & G. N. Ry. Co. v. Donaldson, 2 Willson, Civ. Cas. Ct. App. § 239; T. & P. Ry. Co. v. Miller, 1 White & W. Civ. Cas. Ct. App. § 262. It has also been held that technical rules of pleading do not apply to the manner or form of issues in the justice court in ordinary suits. Railway Co. v. Anderson, 85 Tex. 88, 19 S. W. 1025. It has also been held that the form of an account will not prejudice the right of plaintiff as disclosed by the evidence. Sanger v. Noonan, 27 S. W. 1056.

And also construing the said statute it was held:

“The effect of the article is that no rule is prescribed except that the statement which may be made by the parties shall be oral and may be entered [on the docket by the justice of peace].”

The form in which the cause of action or ground of defense is stated is of no importance. If from all that is stated, oral or written the court can ascertain what rights the plaintiff asserts, or what defense the defendant interposes, the pleading is sufficient. Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S. W. 40-3. The testimony of the witness with reference to the matter complained of was that the horse was worth on the market $125; that the horse was killed September 9, and was found on September 11, 1914. The first assignment of error is overruled.

The second and third assignments of error complain of the court’s action in overruling defendant’s general and special demurrers to plaintiff’s pleading. These assignments are overruled.

By its fourth assignment of error, the action of the court in rendering judgment for plaintiff for $20 attorney’s fee is complained of. Article 2178, Vernon’s Sayles’ Texas Civil Statutes, provides:

“Hereafter'any person in this state having a valid, bona fide claim against any person or corporation doing business in this state, for personal services rendered, or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or em-ployés, may present the same to such person or corporation or to any duly authorized agent thereof, in any county where suit may be instituted for the same; and if, at the expiration of 30 days after the presentation of such claim, the same has not been paid or satisfied, he may immediately institute suit thereon in the proper court; and if he shall finally establish his claim, and obtain judgment for .the full amount thereof, as presented for payment to such person or corporation in such court, he shall be entitled to recover the amount of such claim and all costs of suit, and, in addition thereto, a reasonable amount as attorneys’ fees ; provided, he has an attorney employed in the case, not to exceed $20.00, to be determined by the court or jury trying the case.”

The claim, as presented in this case to the appellant, was for $155. There is no record of any testimony being introduced in the county court with reference to the' claim of damage for killing the hog. However, there was such evidence introduced in the justice court. The claim for damages with reference to the hog was, perhaps, abandoned; at least the record shows no disposition of this part of the claim. The party presenting the claim did not obtain judgment for the full amount thereof, and therefore we do not believe he was entitled to recovér the attorney’s fee asked for. Therefore this assignment is sustained.

This holding also disposes of appellant’s fifth assignment of error. The remaining assignments are overruled, and judgment of the lower court is reformed and here rendered in favor of appellee for $125. It is so ordered.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S^3Por other cases see same topic and KEY-NUMBER in all Koy-Numbered Digests and Indexes


author: LEVY, J.

text:
    THOMPSON et al. v. RICHARDSON.
    (No. 1645.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 18, 1916.
    Rehearing Denied May 25, 1916.)
    1. Appeal and Error <&wkey;263(l) — Review— Giving and Refusal oe Instructions.
    Where appellants did not, so far as the record discloses, except to the ruling of the trial court, as required by statute, in respect to the giving and refusing of instructions, assignments of error based thereon cannot be reviewed by the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516, 1518; Dec. Dig. <&wkey;> 263(1).]
    2. Trespass to Try Title &wkey;>46 — Defenses— Adverse Possession.
    In trespass to try title, that the actual adverse possession of each defendant was found by the jury to extend in fact to a less area of land than that claimed by them in their answer affords no sufficient ground to set verdict for plaintiff for the remainder of the tract aside.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 68; Dec. Dig. &wkey;>46.]
    Appeal from District Court, Henderson County.
    Action by Ben M. Richardson against Jake Thompson and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    This is an action by appellee against appellants in trespass to try title to 320 acres of land situated in the southwest corner of the John F. Hollien survey in Henderson county. The Plollien survey was patented October 23 1S45, and the appellee was, as proved, the owner in fee simple of the land sued for, by regular chain of deeds from the patentee to himself. The defendants, William and Jake Thompson, each claim 57 acres of the land, specifically described, under the statute of limitation of ten years’ adverse possession. They do not claim by or under any deed or claim, but only under naned occupancy for ten years. The issue respecting the defendants’ adverse possession of that part of the land claimed by them was submitted to a jury, and their finding was to the effect that the actual adverse possession before suit of William Thompson and wife extended to and included only about 4 acres, specifically described, of the land in suit, and that the actual adverse possession of Jake Thompson and wife extended to and included only about 9 acres, which was described, of the land in suit. The evidence respecting the plea of limitation is conflicting. There is evidence from which the jury could have made the finding that they did, and their finding is here adopted.
    Miller & Miller and Faulk & Faulk, all of Athens, for appellants. Richardson & Watkins, of Athens, for appellee.
   LEVY, J.

(after stating, the facts as above).

The several assignments of error based upon the giving and refusing by the court of instructions to the jury may not be reviewed by this court for the appellants did not, so far as the record discloses, except to “the ruling” of the court in, such respect, as required by the statute. Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Bland, 181 S. W. 504.

The remaining assignment of error contends that the verdict of the jury respecting limitation is contrary to the evidence and the law. ■ Concluding, as we have, that there is evidence in the record from which the jury could find, as they did, that the actual adverse possession of the defendants to the time of bringing the suit by appellee extended only, in point of fact, to the area of land described in their verdict, the assignment of error should, it is believed, be overruled. That the actual adverse possession of each defendant extended in fact to a less area of land than that claimed by them in their answer would not afford a sufficient ground to set the verdict aside.

Affirmed.


text:
    ANDREWS v. FULLER.
    (No. 116.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1916.
    Rehearing Denied May 18, 1916.)
    1. Appeal and Error <&wkey;1012(l) — Review-Questions of Fact — Findings of Court— “Preponderance of Evidence.”
    The Court of Civil Appeals will not set aside a judgment rendered by the lower court simply on a matter of a preponderance of evidence, which is not the number of witnesses, but the weight and value that is given to the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. <&wkey;> 1012(1).
    For other definitions, see Words and Phrases, First and Second Series, Preponderance.]
    2. Appeal and Error t&wkey;1151(2) — Action for Damages — Attorney’s Fees — Evidence —Judgment.
    In an action for damages to a car of potatoes injured in transit where the record shows no evidence as to the employment of attorneys or as to the value of their services, a judgment allowing plaintiff an attorney’s fee was without basis in the evidence, and will be reformed by striking out the amount so allowed.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4508-4505; Dec. Dig. &wkey;1151(2).]
    Appeal from Newton County Court; W. E. Gray, Judge.
    Action by A. L. Puller against Pranlr Andrews, receiver, Orange & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Wiglitman & Hancock, of Newton, for appellant. Chas. D. Smith, of Beaumont, T. J. Fortenberry, of Kirbyville, and O. B. Wig-ley, of Newton, for appellee.
   BROOKE, J.

Appellee filed suit in justice court, Newton county, for damages for a car of potatoes injured in transit from Call in Newton county to Victoria in Victoria county, over the railroad of appellee, amount sued for being $189, $169.25 damages, and $19.75 attorneys’ "fees.

Trial was had in justice court, December 14, 1914, and judgment rendered for appellee for $169.25 as damages and $19.75 attorneys’ fees. Appellant appealed from the justice court to the county court of Newton county. In the county court appellee renewed his prayer for $169.25 damages, and $19.75 attorneys’ fees. Judgment was rendered for ap-pellee in the county court on October 6, 1915, for $169.25 damages, and $16.96 attorneys’ fees. Prom this judgment of the county court appellant perfected his appeal to this court.

The ease was tried in the court below by the court, and conclusions of law and fact were filed, as follows:

“The court upon the request of defendant in said cause finds as its conclusions of fact the following;
“(1) That the plaintiff in this cause, A. D. Puller, shipped a car of potatoes on or about the 17th of January, 1918, from Call in Newton county, Texas, over the Orange & Northwestern Railway Company to C. O. Hobbs at Victoria, Texas.
“(2) That these potatoes were loaded into the car at Call, Texas, in good condition, and were in good condition at the time they were delivered to the defendant.
“(3) That the agent of plaintiff instructed the defendant company to keep the vents in the car open, except in case of severe cold weather.
“(4) That the car of potatoes was in course of time delivered to consignee, Hobbs, at Victoria, Texas, on or about January 22, 1918, with all vents closed.
“(5) That the weather from the time the car left Call until it was delivered to consignee was warm and not severely cold.
“(6) That the potatoes in the car were in a hot, sweating and moulded condition when it was delivered to consignee.
“(7) That this condition of the contents was caused by the vents in the car having been closed during transit.
“(8) That 186 bushels of these potatoes were so rotten and decayed as to be unfit for use when the car was opened.
“(9) That the damage to this ear of potatoes was caused by negligent and careless handling of the same by the defendant while in transit.
“(10) That the reasonable market value of these potatoes at the time of the loss of same were 75 cents per bushel.
“(11) That $20.46 was the amount of freight paid by plaintiff on that portion of the car that was damaged and lost, as above found.
“(12) That C. O. Hobbs paid $10 for the work of assorting and unloading the car, which amount was repaid by A. L. Puller, plaintiff.
“(13) That a written claim for the damages was presented by plaintiff to the defendant more than 30 days prior to the filing of this suit.
“(14) That the sum of $16.96 is a reasonable allowance for attorneys’ fees in this case, and I further find that reasonable attorneys’ fees wore orally pleaded and asked for in the original trial of this cause in justice court.
“Conclusion of Law.
“Prom the foregoing conclusions of fact, the court finds the defendant is liable to the plaintiff herein for damages to the car of potatoes, as follows:
186 bushels lost at 75 cents per
bushel . $139.50
Freight on portion lost. 20.46
Paid for unloading and assorting.. 10.00
Reasonable attorneys’ fees. 36.96
Total . $186.92”

Appellant in his first, second, and fourth assignments of error assails the action of the lower court in finding for the appellee damages, as above stated, claiming that the findings of fact and law by the court as to said damages are unsupported by the evidence and against the great preponderance of the evidence. We have carefully examined the record as to this contention of the appellant, and we find there is testimony to support all the findings of the court, save and except the findings as to attorneys’ fees.

It is not to be thought that this court would set aside a judgment rendered by jury or by the lower court simply on a matter of a preponderance of evidence. We are not in position to say whose testimony the trial court gave credence, and the preponderance of evidence is not the number of witnesses, but the' weight and value that is given to the evidence by the jury or by the trial court. As said above, the evidence is sufficient to support all of the findings of the court, save and except in the matter of attorneys’ fees.

By the appellant’s third assignment, the action of the lower court is challenged in finding judgment for plaintiff for $16.96 attorneys’ fees.

We have examined the record to find it there is any evidence introduced with reference to attorneys’ fees, but have been unable to do so. The record is silent with reference to whether attorneys had been employed, and the reasonableness of what such services would be worth in a case like the present. In so far as the record is concerned, it does not disclose that attorneys were employed at all, or if so, as said above, the reasonable value of their services in this case.

We are unable to see, there being no testimony, how the court could arrive at a con-elusion of wliat suela fees would l)e reasonably worth in a ease like the present. There is nothing, therefore, upon which to base such a judgment, and therefore we are constrained to sustain the appellant’s third assignment. The judgment of the court below will be reformed that the appellee recover damages as found by the court, save and except the $16.96 attorneys’ fees.

The judgment, as so reformed, will be affirmed; and it is so ordered.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes