author: RICE, J.

text:
    RIBBLE v. ROBERTS.
    (No. 5516.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1916.)
    Appeal and Error <&wkey;>1221 — Disposition op Cause — 'Rendition of Judgment — Correction.
    Under Rev. St. 1911, art. 1626, providing that, when a judgment shall be reversed, the Court of Civil Appeals shall render such judgment as the lower court should have rendered, where the Court of Civil Appeals, in reversing a judgment of the county court, reversing a judgment of a justice of the peace for plaintiff, renders judgment for plaintiff, but not against the sureties on the bond on appeal from the justice of the peace, such judgment will be reformed on motion, so that plaintiff may have judgment against defendant and his sureties on the appeal bond for his debt and dosts of both justice and county courts, as well as against defendant for the debt and all costs.
    [Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. § 4722; Dec. Dig. &wkey;sl221.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by A. D. Ribble against J. B. Roberts. From a judgment of the county court, reversing a judgment of a justice of the peace for plaintiff, he appeals. Heard on motion to reform and correct judgment.
    Motion granted.
    Miller & Low, of Brownwood, for the motion. Mark McGee and Scott & Foster, ail of Brownwood, opposed.
   RICE, J.

This suit was brought by appellant against appellee in the justice court to recover judgment on two notes executed by appellee to him. A trial in said court resulted in favor of appellant, from which judgment appellee prosecuted his appeal to the county court, executing an appeal bond, with P. C. Krischke and R. R. Shanks as sureties, conditioned as required by law. On. trial in the county court judgment was rendered in favor of appellee, from which appellant, in due time, prosecuted his appeal to this court, where, on November 24, 1915, said judgment of the county court was reversed and rendered for appellant but judgment was not rendered against said sureties on the appeal bond from the justice to the county court (see Ribble v. Roberts, ISO S. W. 620), and appellant has since said time filed a motion in this court, asking that said judgment be so reformed and corrected that he have and recover the amount of his debt and the costs of the lower courts against said sureties, as well as against appellee, alleging that the former are liable upon the appeal bond.

We have concluded that appellant is entitled to the relief prayed for in said motion, because article 1626 of the Revised Statutes of 1911 provides that, when the judgment or decree of the court below shall be reversed, this court shall proceed to render such judgment or decree as said lower court should have rendered, etc. As determined by us, the lower court should have rendered judgment in favor of appellant, in-instead of appellee, and if this had been done, under the law appellant would have been entitled to judgment against appellee and the sureties on said appeal bond for not only the amount of said judgment, but for costs of both the county and justice court as well. This being true, it follows that appellant is entitled, upon reversal in this court, to such judgment as the county court should have rendered in his behalf. Said motion is therefore granted, "and the judgment heretofore rendered is so reformed that appellant have judgment against appellee and his said sureties on said appeal bond for the amount of his debt and costs of both the justice and the county courts, as well as against appel-lee for said debt and all costs.

Motion granted.
      «gu^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    BAIN v. POLASEK.
    (No. 5623.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1916.)
    1. Sales &wkey;>170— Time or Delivery — Essence oe Contract.
    Where plaintiff agreed to sell cotton for delivery on or about a certain date, and defendant accepted a portion delivered at a subsequent date, the time of delivery was not of the essence of the contract, and failure to deliver on the exact date stipulated did not defeat plaintiff’s right to recover for the defendant’s refusal to accept the remainder of the cotton.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 424; Dec. Dig. &wkey;>170.]
    2. New Trial &wkey;>99 — Newly Discovered Testimony — Character oe Testimony.
    New trial cannot be had on the ground of newly discovered testimony, where the testimony relied upon is immaterial and the same facts had already been testified to, but it must appear that the evidence would, on another trial, produce a different result.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. <&wkey;>99.]
    3. Damages &wkey;> 189 — Evidence— Stjeeiciency.
    AVhere the plaintiff, who sold cotton to defendant, who refused to accept all of it, testified that he lost a certain sum on account of the defendant’s refusal to perform, and the defendant failed to bring out on cross-examination the basis on which such sum was figured, the plaintiff’s testimony was a sufficient basis for a judgment for the amount testified to, especially where a simple computation would reveal the amount of loss to be as testified.
    [Ed. Note. — For .other, cases, see Damages, Cent. Dig. §§ 285, 512; Dec. Dig. <&wkey;>189.] --
    Appeal from Karnes County Court; T. B. Smiley, Judge.
    Action by K. J. Polaseli against J. L. Bain. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John W. Thames, of Kenedy, for appellant. C. L. Bell, of Karnes City, and Lipscomb & Lipscomb, of San Antonio, for appellee.
   FLY, C. J.

This is a suit by appellee to recover the sum of $144.10, damages accruing from the breach of a contract entered into with appellant, in which the latter agreed to buy 25 bales of cotton from appellee, but refused to pay for 13 of the bales. There was a trial by jury, resulting in a verdict and judgment for appellee for the amount sued for.

The facts indicate that appellee agreed to sell 25 bales of cotton of certain grades at Kenedy, Tex., on or about August 20, 1914; that appellee delivered the cotton at or about the time agreed upon, but appellant refused to pay for 13 bales, entailing a loss on ap-pellee in the sum found by the jury.

The first assignment of error is overruled. The special charge, whose rejection is complained of in the assignment, made the whole ease turn on whether appellee failed to deliver the cotton on August 18th, and whether appellant had notice of when the cotton was delivered at Kenedy. Time was not of the essence of the contract, which is clearly evidenced by the fact that appellant paid for 12 bales of the cotton, and only objected to paying for the remainder because not up to the grade for which he had contracted. The 12 bales were paid for on or about August 22d.

The motion for new trial was properly overruled. The newly discovered testimony was utterly immaterial, and the same facts substantially were sworn to by appellant. It did not matter to whom the cotton was shipped, appellant got 12 bales of it, and could have had the other 13 bales if he had paid for it as he agreed. The only complaint was as to the grade of the cotton, and the newly discovered testimony cast no light on that subject. In order to obtain a new trial on the ground of newly discovered testimony, it must appear that the evidence would, on another trial, produce a different result. It is utterly improbable that the testimony sought in this case would have any effect whatever on the result of another trial. The second assignment of error is overruled.

The third assignment of error is overruled. Appellee swore, and his testimony was not denied or questioned, that he lost $144.10 by the failure of appellant to take his cotton. If appellant desired to know how he arrived at that result, he could have brought it out on the cross-examination, and he failed to do it. That evidence formed a sufficient basis for the judgment. However, it is entirely practicable to ascertain from appellee’s evidence that appellant had agreed to pay him 9% cents a pound for the cotton, and that all he got for it was 7% cents a pound, or a loss of 2Ys cents a pound, and if the $144.10 be divided, by tbe 2% cents, tbe result is 6,781 pounds of cotton, tbe weight alleged in the petition. There is therefore no merit in tbe contention that, tbe weight of tbe cotton not being proved, there was no basis for tbe judgment.

Tbe judgment is affirmed.
      ^==>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    TEXAS & P. RY. CO. v. HOWELL.
    (No. 1547.)
    (Court of Civil Appeals of Texas. Texarkana,
    Jan. 15, 1916.
    Rehearing Denied Feb. 3, 1916.)
    1. Master and SeRvant <&wkey;330(3) — Master’s Liability to Third Persons — Evidence— Negligence of Servant — Proximate Cause.
    In an action for damages to a horse which became frightened at the actions of section bands on defendant’s railway and ran into a fence, evidence held to sustain findings by the jury that the acts of the hands were negligent, and that such acts were the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1272; Dec. Dig. <&wkey;> 330(3).]
    2. Master and Servant &wkey;>302(2) — Master’s Liability to Third Persons — Acts of Servants Beyond Employment.
    A railway company is not liable for injuries to a horse which was frightened by section hands shouting, laughing, and waving their hands at it, even though at the time they were engaged in their duties, since such acts had no connection with their employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dee. Dig. <&wkey;302(2).]
    3. Master and Servant <&wkey;302(2) — Master’s Liability to Third Persons — Proximate Cause.
    Where a horse which was being driven along a lane adjoining a railroad right of way with other animals and which stopped when about to pass a section gang at work on the track and became frightened when the section hands began shouting, laughing, and waving their hands, jumped over a fence, and sustained fatal injuries, and there was. no evidence that the work of the section hands was being done in a negligent or improper manner, the fright of the horse must be attributed to the other acts of the hands for which the railway company was not liable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dec. Dig. &wkey;302(2).]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by L. H. Howell against tbe Texas & Pacific Railway Company. Judgment for tbe plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendants.
    Tbos. P. Steger, of Bonham, and Geo. Thompson,, of Dallas, for appellant. Cunningham & McMahon, of Bonham, for appel-lee.
   HODGES, J.

This appeal is from a judgment in favor of tbe appellee for $199, tbe value of a horse killed near tbe appellant’s right of way. It is claimed that tbe animal, while traveling along a lane parallel with and near tbe appellant’s road, was frightened by a group of section bands at work upon tbe track and caused to run against a wire fence, sustaining fatal injuries.

Tbe only testimony introduced on tbe trial as to bow tbe injury occurred was that of tbe plaintiff. He stated that be was on foot driving bis horse and three mules from a pasture to his residence; that tbe lane be was traveling was about 15 yards from tbe railway track, and at tbe time tbe injury occurred be was about 50 yards in tbe rear of tbe animals. He said:

“At the time of the injury to my horse he was a little just south of the railway’s fence, which runs along the south Une of its right of way. * * * I had been to the pasture, after my stock, and was driving this horse and three mules from the pasture to my house, traveling this lane and going west. * * * There was a bunch of Mexicans at work on the track of the railway at the time of the injury, and just as the stock got opposite these Mexicans and south of them they had the track raised about a foot and were working on it, putting sand and gravel under the track, using spades, shovels, and crowbars in doing the work. When the stock got up even with the Mexicans, they kind of stopped, and the Mexicans commenced to pound the rails and to chouse the gravel with tbe shovels, and some of them pulled off their hats and hollered, and the mules rushed by, and the horse jumped over the fence. The Mexicans choused the gravel with the shovels and made lots of noise. That is the way they did their work. Yes; they saw the stock scared. Yes; they kept chousing that gravel down. The Mexicans hollered and nickered like a horse, and the horse jumped over the fence. The Mexicans were looking at the horse at that time, and after the horse went into the fence the Mexicans nickered Uke a horse. When the horse and mules stopped the Mexicans kept on making the noise worse. After the horse went into the fence the Mexicans did not say a word, but laughed.” •

Tbe testimony further shows that tbe horse, in attempting to jump over tbe fence, sustained injuries which later proved fatal. At tbe conclusion of tbe evidence counsel for appellant requested a peremptory instruction for tbe defendant, which was refused, and tbe case was submitted on special issues.

Tbe questions propounded to tbe jury were as follows:

“(1) Were the defendant’s employés guilty of negligence in causing injury to the plaintiff’s animal?
“(2) If you answer the foregoing question to the affirmative, then I ask you if such negligence, if any, was the proximate cause of the injury?”

Both of these questions were answered in tbe affirmative. Tbe third question was for tbe purpose of ascertaining tbe value of tbe animal.

Under the evidence tbe jury could not have given different answers to the first two questions. That tbe conduct of tbe Mexicans on that occasion was tbe sole proximate cause of this injury is. conclusively shown. But that fact alone does not furnish tbe true test of liability on the part of the railway company. The master is not to be held responsible for all the wrongful acts of the servant, even though performed at the time the servant is engaged in the master’s service. The master is liable only for those acts which are done at his direction or in furtherance of the business for which the servant is employed. If while engaged in the performance of his duties the servant, of his own volition, does some act wholly disconnected with the master’s service, from which an injury results, he alone is responsible for the consequences. The Mexicans who caused this injury were presumably section hands engaged upon the railway right of way in repairing the tract. Their conduct in yelling, laughing, and waving their hats had no connection whatever with the service which they were engaged to perform. If those acts were the sole proximate cause of the injury to this animal, the Mexicans alone are liable. The railroad company can be held responsible only upon satisfactory proof that the manner in which the Mexicans were performing their work was, under the circumstances, negligent.

Tire important inquiry then is: What conduct on the part of the Mexicans caused the animal to rush against the wire fence and sustain the injuries? Was it their noisy laughter, loud talking, and waving of hats, or was it their manner of repairing the track? • We might further inquire which of these different acts was most likely to cause the animal to take fright? To this we think there can reasonably be but one answer: That it was the boisterous, voluntary misconduct on the part of the Mexicans. But, conceding that it were otherwise, liability on the part of the railroad company arises only upon a showing that the section men were guilty of negligence in continuing to do their work, or ih the manner in which they continued their work, after discovering the presence of the animals and that they were frightened. The men were upon the premises of the railroad company and were engaged in a lawful and necessary employment. There is no evidence that this was being carried on in an unusual maimer, or that anything was being done that was not necessary under the circumstances, or that this particular class of work was calculated to frighten animals passing along the lane at that distance. There was no duty resting upon these, employés to cease their work, unless the animals showed fright to that extent which would indicate to a prudent person that they were liable to injure themselves. The mere fact that the animals stopped or slackened their speed when opposite the section men was not alone sufficient to put the latter upon notice that one or more of them might rush into the wire fence instead of going down an unobstructed lane as two of them did. The conduct of the horse clearly indicated that he was suddenly made frantic, and this could be attributed to nothing but the boisterous conduct of the Mexicans outside of the scope of their employment.

The judgment of the county court will therefore be reversed, and judgment here rendered in favor of the appellant.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ROCKDALE MERCANTILE CO. v. BROWN SHOE CO.
    (No. 5598.)
    (Court of Civil Appeals of Texas. Austin.
    March 1, 1916.)
    1. Appeal and Error &wkey;>282 — Presentation op Questions in Trial Court — Motion por New Tbiai^Neoessity.
    Where a case is tried before the court without a jury, a motion for new trial is not a prerequisite to the perfection of an appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. <&wkey;> 282.]
    2. Account, Action on <&wkey;10 — “Open Account” — Requisites.
    An account sued on, embracing numerous articles of merchandise purchased on a single date, properly itemized, which has not become an account stated, is an “open account,” proof of which by ex parte affidavit is permitted by Rev. St. 1911, art. 3712.
    [Ed. Note. — For other eases, see Account, Action on, Cent. Dig. § 31; Dec. Dig. <5&wkey;10.
    For other definitions, see Words and Phrases, First and Second Series, Open Account.]
    3. Corporations <&wkey;>505 — Actions—Parties.
    A private corporation has the right to maintain an action in its own name.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1953-1957, 1975; Dec. Dig. &wkey; 505.]
    4. Corporations &wkey;>514(l) — Actions—Pleading.
    The petition, in an action by a private corporation, need not state the name of any officer of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2052-2070; Dec. Dig. &wkey;514(l).J
    Appeal from Milam County Court; John Watson, Judge.
    Action by the Brown Shoe Company against the Rockdale Mercantile Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. A. Camp, of Rockdale, and Wallace & Moore, of Cameron, for appellant. M. 6. Cox, of Cameron, for appellee.
   RICE, J.

Appellee brought this suit to recover a balance for merchandise sold by it to appellant, as evidenced by verified itemized account attached to its petition, and on trial before the court without a jury recovered judgment for the full amount claimed, to wit, $345.45, from which judgment this appeal is prosecuted.

There was no motion filed by appellant for a new trial in the court below, for which reason appellee insists that we should not consider any of the assignments of error, since they do not conform to rules 24 and 25 (142 S. W. xii), also citing in support of this

contention Irving v. T. & P. Ry. Co., 157 S. W. 752; Salliway. v. Grand Lodge, A. O. U. W., 164 S. W. 1041; City of San Antonio v. Bodeman, 163 S. W. 1043; Taylor v. Butler, 168 S. W. 1043. The contrary, however, has been held in a recent opinion by Hr. Chief Justice Phillips in Craver v. Greer, 179 S. W. S62, holding that where a case is tried before the court without a jury, a motion for new trial is not a prerequisite to the perfection of an appeal. See that case for a full and elaborate discussion of the question.

The principal contention involved in this appeal is whether or not the account sued upon and offered in evidence is an open account, and therefore the subject of proof by ex parte affidavit under article 3712, R. S. 1911. See, also, same article 3 Vernon’s Sayles’ Rev. Stats, p. 2745. The account sued on embraced numerous articles of merchandise purchased from appellee by appellant under date of May 20, 1914, and was properly itemized, to which was appended the ex parte affidavit of the secretary of appellee, conforming in every respect to the provisions of said article 3712. We think this is such an open account as is the subject of verification under said statute, and makes a prima facie case, upon which appellee was entitled to recover. See McCamant v. Bat-sell, 59 Tex. 363; Wroten Grain Co. v. Mineola Box Co., 95 S. W. 744. As said by Mr. Justice Stay ton in the first case cited:

“As used in the statutes of this state, in act refen-ed to, we believe that the word ‘account’ is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by a sale upon the one side and purchase upon the other, the title of personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing; and that it does not mean one or more isolated transactions resting upon special contract.”

The account sued on in this ease is not a stated account, as evidently was that in the case of Wroten Grain Co. v. Mineóla Box Co., supra. It is true that it was but a single purchase, but this does not prevent it from constituting an open account. The account in question shows a sale of the goods by appellee to appellant, stating the price charged therefor, and in every particular conforms to what is regarded by the authorities as an open account; and was therefore, when properly verified, as in the instant case prima facie evidence upon which appel-lee is entitled to judgment, in the absence of proof impeaching its validity or showing its incorrectness. In McCamant v. Batsell, supra, the claim sued upon was held not to be an open account within the meaning of article 3712, and therefore could not be established by the ex parte affidavit of the plaintiff. The suit in that case was brought to recover amounts paid by plaintiff for defendant on two security debts. It is true that the account sued upon in the case of Wroten Grain Co. v. Mineóla Box C'o., supra, would ordinarily have come within the purview of this article but for the fact that the plaintiff’s petition contained allegations showing that the account sued upon was no longer an open account, but in fact a stated account between the parties, and therefore could not be established by the ex parte affidavit of the plaintiff, and the court so held in that case.

The original petition omitted to give the name of any officer of the plaintiff corporation, and also failed to state the domicile of such corporation. A special exception, addressed to the petition on account of such defect, was overruled, and this is made the basis of appellant’s first assignment of error, insisting by its proposition thereunder that the petition is insufficient in this respect. A private corporation has the right to maintain an action in its own name. See Southern Pac. Co. v. Bums, 23 S. W. 288. And it has been directly held that it is not necessary to state the name of any officer of the plaintiff corporation. Yates v. Royston State Bank, 131 S. W. 255. But, admitting the exception as to omitting plaintiff’s domicile to be well taken, and it was necessary to so state the domicile of the corporation, this was in fact done by the trial amendment duly filed with permission of the court, making the petition in every respect conform to the exception of appellant.

Finding no error in the proceedings of the trial court, its judgment is, in all respects, affirmed.
      <g=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HILLSIDE LAND & IRRIGATION CO. v. RUIZ.
    (No. 551.)
    (Court of Civil Appeals of Texas. El Paso.
    March 10, 1916.)
    Waters and Water Courses <&wkey;254^LEASE oe Water — Construction.
    Provision of a lease contract that the lessor shall pay the irrigation company for four ir-rigations does not require it to furnish the water.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <&wkey;> 254.]
    Appeal from Ward County Court; Burch Carson, Judge.
    Action by the Hillside Land & -Irrigation Company against J. G. Ruiz. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    B. W. Baker, of Barstow, for appellant. W. A.'Hudson, of Pecos, for appellee.
   HIGGINS, J.

By written contract dated January 3, 1913, appellant leased to Ruiz, for the year 1913, 80 acres of land. Ruiz agreed to pay a rental of $3 per acre. This suit was filed to recover such rental. In bar of the action and as the basis of his cross-action, defendant set up this provision in the contract, namely:

“The lessor agrees to pay the Barstow Irrigation Company the annual water rental due to said company during the term of this lease (for cotton and cane four irrigations only).”

And in Ids answer pleaded:

“This defendant says that said provisions mean, and were mutually understood to mean, that plaintiff was to furnish water for the growing of crops by irrigation to the extent of four irrigations during the life of said contract, and that, although defendant often requested plaintiff and said irrigation company to furnish him water for irrigation of his crops, said plaintiff failed and refused to furnish said water or cause same to be furnished, and defendant was thereby prevented from making any crops upon said land, and said land was rendered worthless to this defendant, all of which was well known to plaintiff, and that for the reasons stated the consideration for said ‘Contract has wholly failed, and that this defendant is not liable for any sum of money thereunder.”

In Ms cross-action he averred:

“That said provision meant, and was understood by the parties to said contract to_ mean, that plaintiff would furnish or cause said irrigation company to furnish to this defendant for irrigations for his cotton and cane to be grown upon said land during the term of said lease. This defendant says that, if he is mistaken as to the meaning of said provision, then he says that plaintiff is a subsidiary corporation to said Barstow Irrigation Company, and was organized by the stockholders of said irrigation company for the sole purpose of owning and holding lands belonging to said Barstow Irrigation Company, and that the lands herein described are part of such lands, and that plaintiff and said Barstow Irrigation Company are one and the same corporation and are owned and controlled by the same people and have now and at the time of the making of said lease contract had one and the same agent and manager, to wit, one John Wilson.”

From a judgment in favor of Ruiz, tMs appeal is prosecuted.

It is unnecessary to discuss the assignments in detail. It is sufficient to say that the contract between the parties imposed no obligation upon appellant to furnish water for irrigation. It is plain and unambiguous in tMs respect. There is no allegation or proof of fraud, accident, or mistake. The Hillside Land & Irrigation Company and the Barstow Irrigation Company were separate and distinct corporate entities. The cause will be reversed, and judgment here rendered that appellant recover of Ruiz $240 with 6 per cent, interest from January 1, 1914, and that Ruiz take nothing by Ms cross-action.

Reversed and rendered.
      ®=5>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    FIRST TEXAS STATE INS. CO. v. HERNDON.
    (No. 61.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 10, 1916.)
    Insurance <&wkey;539(l) — Notice ob Peooe of Loss — Statutory Provisions.
    Tinder Rev. St. 1911, art. 5714, providing that no stipulation in a contract requiring notice of any claim for damages as a condition Íprecedent to the right to sue shall be valid un-ess reasonable, and that any such stipulation fixing the time at less than 90 days shall be void, a provision in a policy insuring against sickness, requiring that if the sickness continued for more than 30 days insured or his representative should, as a condition precedent to a recovery furnish the insurer every 30 days a report in writing from his attending physician or surgeon, stating his condition and the probable duration of his disability, was void.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328, 1330, 1332, 1337; Dec. Dig. &wkey;539(l).]
    Appeal from Jasper County Court; C. C. Brown, Judge.
    Action by W. H. Herndon against the First Texas State Insurance Company. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Smith & Lanier, of Jasper, for appellant. O. C. Ingram, of Jasper, and R.- S. Sanders, of Center, for appellee.
   CONLEY, C. J.

The appellee brought this suit in the justice court, precmct No. 3, Jasper county, on an insurance policy issued by the appellant in favor of appellee on the 24th day of December, 1912. By the terms of said policy the appellant insured appellee, among other tilings, against sickness, at the rate of $50 per month, for a period not exceeding six consecutive months, during which insured was necessarily and continuously confined in the house and regularly visited by a legally qualified physician, and wholly disabled by bodily disease or illness from performing any and every duty pertaining to his business or occupation. The appellant makes no question about the issuance of the insurance policy and the contract arising thereunder, but defended this suit upon the theory that, although the appellee was sick, as he claimed, and would otherwise be entitled to the benefits of the policy, yet on account of his failure to comply with the terms of the policy under paragraph N, in which it was made a condition precedent to recovery thereunder, if the insured was disabled for more than 30 days — he claiming to have been disabled for 60 days — that he should furnish the company, every 30 days, with a report in writing from his attending physician, fully stating his condition and the probable duration of his disability, and that therefore, by reason of such failure, the company was not liable on said policy. The proof showed that appellee became disabled and was prevented from performing any duty pertaining to his occupation from the 16th day of November, 1914, at noon, until the 16th day of February, 1915, and that during said time he was regularly visited by a physician. Paragraph N of said policy provides as follows:

“If the insured is disabled by reason of illness for more than thirty days, he or his representative shall, as a condition precedent to recovery hereunder, furnish the company every thirty days with a report in writing from his attending physician or surgeon, fully stating the condition of the insured and the probable duration of Ms disability.”

The insured did not furnish to the company a report in writing SO days after becoming disabled, as required by the policy, but did furnish a report on the forty-ninth day of his illness. In the trial of the cause judgment was recovered in the justice court for $102.50, and also $20 attorney’s fee. The appellant duly perfected its appeal to the county court of Jasper county, and a trial therein had before that court also resulted in a judgment in favor of appellee for a like amount, and from the latter judgment, an appeal has been perfected to this court.

Appellant’s first assignment of error is as follows:

“The judgment rendered herein is contrary to the law and the evidence of this case in this: That the disputed evidence shows that the plaintiff herein failed to comply with the terms of his policy, in that he failed to furnish said company every 30 days with a report in writing from his attending physician, as required by paragraph N of said policy, fully stating the condition of this plaintiff and the probable duration of his disability, said report being a condition precedent to any recovery under the terms ot' said policy.”

The appellee contends that this provision in the policy is void, and in this contention we agree. Revised Statute, art. 5714, provides:

“No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable; and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void.”

The provision in question in the policy required notice, as a condition precedent to recovery on the policy, where the period of sickness extended more than 30 days, within a less time than that fixed by the statute, to wit, 90 days, and such provision, under many of the decisions of this state, is void. Maryland Casualty Company v. Hudgins, 72 S. W. 1047; Royal Casualty Company v. Nelson, 153 S. W. 674; JUtna Life Ins. Co. v. Griffin, 58 Tex. Civ. App. 198, 123 S. W. 432.

The judgment of the court will therefore be affirmed; and it is so ordered.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    GILLES v. MINERS’ BANK OF CARTERVILLE, MO.
    (No. 892.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 8, 1916.)
    1. Appeal and Error <®=»493 — Judgment by Default — Record—Service of Citation.
    On appeal from a judgment by default prosecuted in the suit in which the same was rendered, the judgment will be reversed, unless the record contains a citation showing due service thereof, or an appearance by defendant, even though the judgment contains a recital that defendant was duly served with citation.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2282-2284; Dec. Dig. <§=> 493.]
    2. Vendor and Purchaser <S=285(2) — Foreclosure of Lien — Defective Judgment.
    A default judgment foreclosing a vendor’s lien on several tracts of land, omitting a call for the west side of one of the tracts altogether, thus describing no property, was defective.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 801, 802; Dec. Dig. ■§==>285(2).]
    3. Judgment <®=>17(8) — Default — Amendment of Petition — Notice.
    In a suit to foreclose a vendor’s lien on several tráets of land, the amended petition, which, in its description of a tract, varied to. such an extent from the description set out in the original petition that it described different land, set up a new cause of action, of which defendant should have had notice to make judgment by default valid and binding.
    [Ed. Note — For other cases, see Judgment, Dec. Dig. 3=>17(8).]
    Error from District Court, Deaf Smith County; D. B. Hill, Judge.
    Suit by the Miners’ Bank of Carterville, Mo., against Albert C. Gilíes and others. To review a judgment for plaintiff, the named defendant brings error.
    Judgment 'reversed,, and cause remanded.
    Russell & Dameron, of Hereford, for plaintiff in error. Gilliland & Estes, of Hereford, fox defendant in error.
   HALL, J.

Defendant in error bank filed this suit in the district court of Deaf Smith county, April 10, 1914, against P. L. Vasse, W. G. Bryant, and Albert C. Gilíes, alleging that defendant Bryant sold to defendant Vasse certain lands in Deaf Smith county; that Vasse executed as part payment therefor a certain promissory note in the sum of $4,500; that thereafter Vasse conveyed by deed said lands to defendant Gilíes, the latter assuming payment of said note; that Gilíes was still the owner of the land; that Bryant assigned and transferred said note to plaintiff bank. The prayer was for citation, for judgment against each of the defendants, and foreclosure of the vendor’s lien on the several tracts of land. The petition discloses the fact that plaintiff and all of the defendants are nonresidents of this state. Notices to serve nonresident defendants were issued and served upon the defendants P. L. Vasse and W. G. Bryant, October 27, 1914, defendant in error bank filed its first amended original petition, and no process was ever issued or served after the filing of said amendment. Appellant insists that the amendment describes altogether different land from that described in the original petition. Seven days after filing the amended petition, judgment by default was taken against all of the defendants, according to the prayer in the pleading. The judgment recites that “the defendants and each of them, though duly cited, having failed to appear and answer in this behalf,” etc. The record contains no notice to serve nonresident defendant, nor shows that any other process was served upon plaintiff in error Gilíes.

As said by Dunklin, Justice, in Bomar et al. v. Morris et al., 126 S. W. 663:

“ * * * On appeal from a judgment by default prosecuted in the suit in which the same was rendered, the judgment will be reversed unless the record contains a citation showing due service thereof or an appearance by defendant, even though the judgment contains a recital that defendant was duly served with citation. May-hew & Go. v. Harrell, 57 Tex. Oiv. App. 509, 122 S. W. 957, and authorities there cited; Glass-cock v. Barnard [58 Tex. Oiv. App. 369], 125 S. W. 615.”

See, also, Bonner Oil Co. v. Gaines, 179 S. W. 686, and authorities there cited.

This will require a reversal of the judgment.

Complaint is further made that the judgment is defective, in that the calls in the description of one of the tracts of land runs north from the beginning comer 1,161 varas, the next call being south 1,611 v&ras, and omits a call for the west altogether, thus describing no property. This contention must also be sustained. One of the tracts generally described as survey No. 2, without giving the number of the block, is described in the original petition as beginning at a mound and semicircular trench the northwest corner of J. H. Wills’ pre-emption survey. It is described in the amended petition as beginning at the northwest corner of the Mathew Wilson pre-emption survey, and varies to such an extent, in the particular description as set out in the original petition, that in our opinion it describes different land — thus constituting a new and different cause of action. Defendants therefore should have had notice of the filing of the amendment, in order to make the judgment by default valid and binding.

For the reasons stated, the judgment is reversed, and the cause remanded.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MARSHALL et al. v. SPILLER.
    (No. 5641.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 8, 1916.)
    1. Injunction <§=>148(1) — Bonds.
    The issuance of a temporary injunction in a suit to restrain the sale of horses and cattle levied on under an execution, without requiring a bond, was null and void.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 323-330, 333; Dec. Dig. <§=» 148(1).]
    2. Courts <§=>480(3) — Jurisdiction—Injunction — Return.
    In such suit, where -it appeared that the judgment on which execution was levied was obtained in another county, the temporary writ of injunction, if legally granted, should, under Rev. St. art. 4653, have been returnable to the county court of such other county.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1273; Dec: Dig. <§=>480(3).]
    Appeal from Menard County Court; J. D. Scruggs, Judge.
    Suit by Ida S. Marshall and others against
    R. H. Spiller. Suit dismissed, and plaintiffs appeal.
    Proceedings annulled and set aside, and cause dismissed.
    M. W. Shelley, of Menard, and W. E. Taylor, of San Angelo, for appellants. Wright & Harris, of San Angelo, for appellee.
   FLY, C. J.

Appellants brought this suit, alleging that appellee as sheriff of Menard county had levied on certain horses and cattle under an execution issued under a judgment against G. W. Marshall, husband of Ida S. Marshall; that the live stock was the separate property of said Ida S. Marshall, and an injunction was prayed for to restrain the sale of the horses and cattle. A temporary injunction was issued, no bond being required of appellants.

Appellee excepted to the petition on the ground that the cattle had been seized by virtue of an order of sale issued out of another county, and the court had no authority to enjoin the order of sale, and it was answered that a judgment was obtained in Tom Green county against G. W. Marshall foreclosing a mortgage on the stock of horses and cattle. The writ of injunction was issued by the county judge of Menard county, the same being made returnable to the county court of that county. He afterwards heard the case and dismissed it because no bond had been filed.

The whole proceeding was null and void. The temporary writ of injunction should not have been granted without a bond being required. Downes v. Monroe, 42 Tex.307; Nicholson v. Campbell, 15 Tex.Civ. App. 317, 40 S. W. 167; Pierson v. Connellee, 145 S. W. 1039.

If the temporary writ had been legally granted, it should have been made returnable to the county court of Tom Green county. Rev. Stats, art. 4653; Seligson v. Collins, 64 Tex. 315; Smith v. Morgan, 28 Tex. Civ.App. 245, 67 S. W. 919; Broocks v. Lee, 50 Tex. Civ. App. 604, 110 S. W. 756; Godfrey v. Lackey, 129 S. W. 1145; Brown v. Fleming, 178 S. W. 964; Thallman v. Buckholts State Bank, 181 S. W. 791, decided recently by this court, and not yet officially published.

All the proceedings are hereby annulled and set aside, and the cause is dismissed.


author: HARPER, C. J.

text:
    HARRELL et al. v. HOLMES.
    (No. 538.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 24, 1916.
    On Rehearing, March 23, 1916.)
    Injunction <§=>146 — Issuance — Temporary Injunction — Answer.
    Rev. Civ. St. art. 7271, declares that every inspector shall have power to and may seize and sequestrate all unmarked or unbranded calves or yearlings freshly marked and branded which are about to be driven or shipped out of the county unless such animals are accompanied by the mother or are identified by the presentation of a bill of sale from a person proven to be the owner, while article 7272 declares that every inspector shall have power to and may seize and sequestrate all unbranded animals or hides and animals and hides upon which the brand cannot be ascertained which are about to be taken or shipped out of the county. Plaintiff's petition averred that he was the owner of cattle which were being shipped from Mexico through Texas to another state; that the animals had been temporarily stopped to comply with the laws of the United States governing their transportation ; that defendants, as inspectors of hides and animals for the county, were threatening to cause such animals to bo seized by writ of sequestration ; and that they intended to make a false report to the district judge of some violation of the stock laws of Texas. The petition further averred that the cattle were duly branded. Held, that defendants having admitted they intended to seize the cattle, but having denied that they intended to proceed against them in any other manner than as provided by law, does not preclude issuance of an injunction; it appearing from the petition, which was not denied, that the animals were not subject to the stock law.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 319; Dec. Dig. <@=>148.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by George M. Holmes against William Harrell and others. From an order granting a temporary injunction, defendants appeal.
    Affirmed.
    Del W. Harrington and Mulcahy & Loftus, all of El Paso, for appellants. F. G. Morris and T. A. Falvey, both of El Paso, for ap-pellee.
   HARPER, C. J.

This is an appeal from an order granting a temporary injunction, upon substantially the following allegations of fact: Plaintiff, a resident of Arizona, complaining of William Harrell, as inspector of hides and animals for the county of El Paso, Tex., and his deputy, as defendants; that he is the owner of a certain 2,000 head of cattle now in said county and branded by brands described, and which he had theretofore imported from the republic of Mexico; that defendants, as inspectors of hides and animals, are threatening to cause them to be seized by the sheriff of El Paso county by writ of sequestration under articles 7271 to 7273 and 7297 to 7302 of the Revised Civil Statutes of Texas 1911; that such seizure will probably be made unless injunction is granted as prayed for, to the injury of the cattle, etc. It was further alleged that the defendants intend to make a false report to a district judge in El Paso county of some violation of the stock laws of Texas, which report, if true, might induce said judge to order a sequestration of said cattle, if the said stock laws are valid and applicable to said shipment of cattle from Mexico; that such report, if made, would not be made in good faith in the belief by said defendant that the said report was true, but in bad faith, and for the purpose of serving the interests of said defendants and others; that said cattle are not passing through El Paso county otherwise than as a part of the transportation of an international shipment from Mexico across Texas to another state, they being only temporarily stopped in El Paso county in order to comply with the laws of the United States governing their importation, all of which defendants well knew; that defendants do not offer to inspect the cattle, but seek to seize the same without inspection or offer of inspection.

This petition was submitted to the judge November 11, 1915, whereupon he granted a temporary restraining order, and set the hearing for temporary injunction for November 15, 1915.

Defendants answered by general and special exceptions, and, pleading specially to the merits, answer as follows: Admit that it was their intention to make application to the court for the writ of sequestration under which the greater part of the cattle held by plaintiff in his said herd, and possibly all of them, might be seized and handled as the law provides, to the end that the true and lawful owners of said cattle might have opportunity to recover them or the proceeds of the sale thereof from the plaintiff, who, as defendants believe, has unlawfully acquired said cattle; that they, as inspector and deputy of hides and animals, are bound under their respective oaths of office to perform the duties prescribed by the statute, are subject to penalties for not doing so, and will do so if not restrained by order of court, etc. Further deny that they now have or ever had any intention of making any false report to any justice or judge of El Paso county, or to in any manner proceed against said cattle in any other manner than as the law requires them to do.

Article 7271, Revised Civil Statutes 1911:

“Every inspector shall have power to and may seize and sequestrate all unmarked or unbranded calves or yearlings, * * * freshly marked or branded, and on which the fresh marks or brands are unhealed, which are about to be * * * driven or shipped out of the county, unless such animals are accompanied by the mothers thereof, or are identified by the presentation of a bill of sale from the person proved to be the owner thereof, signed by him or his legally authorized agent,” etc.

Article 7272:

“Every inspector shall have power to and may seize and sequestrate all unbranded animals or hides, and animals and hides upon which the * * * brand cannot he ascertained, which are about to be taken or shipped out of the county, or which animals are to be slaughtered, unless such animals or hides are identified as provided in the preceding article.”

The trial court granted the injunction upon the sworn pleadings, no evidence having been offered, which was clearly his duty to do.

These statutes provide for seizure only in case grown animals are unbranded, or if calves or yearlings unmarked or unbranded, etc. The allegations are that the cattle were branded with the brands described in the petition. The defendants do not deny that the cattle were branded as alleged by plaintiff, nor do they assert that the brands could not be ascertained. Having admitted that they intended to seize the cattle as chárged by plaintiff, it is not sufficient for them to say that they did not intend to “proceed against the cattle in any other manner than as provided by law” to relieve them from the injunc-tive relief prayed for; for the allegations in plaintiff’s petition were sufficient to authorize the court to grant the writ prayed for unless the defendants deny the material allegations thereof and show by allegations of fact under oath that the cattle were subject to seizure under the statutes. This they have not done.

For this reason, the order granting the injunction must be affirmed.

On Rehearing.

Appellants urge the well-settled principle of law that a public officer will not be enjoined from performing the duties of his office under a valid law, and cites many authorities.

We are of opinion that the record presents no reason for us to pass upon the validity or constitutionality of the statutes involved, nor as to whether shipments of cattle from the republic of Mexico through Texas, if stopped in transit, are subject to inspection or seizure thereunder by the inspector, because, granting that the statutes are valid and applicable to such shipments in proper cases, the plaintiff, by sworn pleading, shows that the cattle in question were not subject to seizure under any of the provisions of the statutes, and the inspector having admitted that he intended to sequestrate the cattle, if not enjoined by a court of competent jurisdiction, and in his answer failed to allege any facts which would authorize the process, in view of the plaintiff’s allegations that none existed. We simply hold that there is no authority for the writ, and therefore no duty to be performed by the hide and animal inspector, and his declaration that he intended to act without showing authority to act clearly means that he was to act outside of the statutory line of his duty, and upon the latter theory alone is the opinion of the court predicated.

The motion is therefore overruled.
      <§=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    NORTH AMERICAN DREDGING CO. et al. v. JENNINGS et al.
    (No. 7069.)

    (Court of Civil Appeals of Texas. Galveston.
    Feb. 24, 1916.
    Rehearing Denied March 16, 1916.)
    Fish <S=>7(2) — Oyster Beds — Grant by Public Authorities — Validity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3982, providing that, whenever any creek, bayou, lake, or cove is within the bounds of an original grant, the lawful occupant thereof shall have the exclusive right to use it for gathering, planting, or sowing oysters, although the original grant from the Republic of Texas, confirmed by the Legislature of the state of Texas, did not give such exclusive right, the grantee of bayou land has the exclusive right to take oysters within the limits of his grant, the statute being a valid exercise of legislative power by the Legislature in encouraging production of oysters.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. § 10; Dec. Dig. <®^>7(2).j
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit for an injunction by Walter Jennings and others against the North American Dredging Company and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and rendered.
    Stewarts, of Galveston, for appellants. Frank S. Anderson, of Galveston, for appel-lees.

      Application for writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellants against appellees to enjoin them from taking oysters from that portion of Offatt’s bayou, in Galveston county, which is embraced within the boundaries of a grant from the state, under which appellants hold title to land in said bayou. It is unnecessary, for the purpose of this opinion, to set out the pleadings of appellants. The defenses set up in the court below are thus summarized in appellees’ brief:

“(a) That said Offatt’s bayou is, and always has been, an inlet or small bay, forming a part of the tidewaters of Galveston Bay and the Gulf of Mexico, and through and into which the tide from said gulf and bay ebbs and flows.
“(b) That said bayou is navigable water, and that the same is navigated, and always has been, by small sailboats and other craft; egress and ingress being ha.d thereto from the said Galveston Bay.
“(c) That said bayou is, and always has been, a natural oyster bed, and that as many as five barrels of oysters may be found within 2,500 square feet of any position of said bayou, and that the same has always been used by the public for the purpose of fishing .and digging oysters therein and therefrom.
“(d) That the plaintiffs, nor either' of them, have ever been granted exclusive right to fish and remove oysters therefrom.”

The trial in the court below without a jury resulted in a judgment in favor of the defendants, denying the injunction asked by plaintiffs. The learned trial judge filed a written opinion, which contains the following fact findings that are sustained by the un-controverted evidence, and which we adopt as our conclusions of fact:

“That Offatt’s bayou is a navigable stream, where the tide ebbs and flows, and has always been such, and a p,art of the public waters of the state of Texas and the former Republic of Texas; that the oysters in said bayou are, and constitute, and have always been, natural oyster beds and reefs, and there have been no private oyster beds, or oysters planted by plaintiffs or those under whom they claim, in said bayou, or upon the lands thereunder involved in this suit.
“I further find that from that part of said bayou, and the land thereunder involved in this suit, defendants and others have always openly and constantly, without interruption or interference on the part of any one claiming to own or occupy the lands under the waters thereof, or otherwise, exercised the right of fishing and digging oysters.
“I find that the plaintiffs are the owners of the land under Offatt’s bayou designated in their petition, both under patent from the Republic of Texas on November 28, 1840, to said Hall and Jones, and by special act of the Legislature of Texas, February 9, 1854, confirming said grant, decree of partition, and mesne conveyance thereunder.”

In adopting these fact findings we understand the first finding to mean only that Offatt’s bayou, being a navigable stream in which the tide ebbs and flows, is a public water of which the state has jurisdiction and control for any and all purposes except such as it may have relinquished to private individuals.

The third finding of fact by the trial court shows that the state has parted with its title to the land under said bayou involved in this suit.

It may be conceded that the trial court is correct in the legal conclusion that the grant by the sovereignty of the title to the land under navigable waters does not carry with it the grant to the exclusive right of .fishing in the waters covering said grant, unless the grant expressly includes such right. The original grant under which appellants hold title does not give such right, but an act of the Legislature of this state passed in 1905 contains the following provisions:

“Whenever any creek, bayou, lake or cove shall be included within the metes and bounds of any original grant or location in this state, the lawful occupant of such grant or location shall have the exclusive right to use said creek, lake, bayou or cove for gathering, planting or sowing oysters, within the metes and bounds of the official grant or patent of said land. Provided, that the fish and oyster commissioner may require the owner of oysters produced on such land when offered for sale to make an affidavit that such oysters were produced on his land.” Vernon’s Sayles’ Statutes, art. 3982.

It seems to us that the language of this statute is so plain and definite that there is no room for construction. The authority of the Legislature to grant the exclusive right to the owners of the land covered by the public navigable .waters of this state to take oysters therefrom or to plant oysters in said waters cannot be doubted. Jones v. Johnson, 6 Tex. Civ. App. 262, 25 S. W. 650. There is nothing in the act of which the article above quoted is a part, inconsistent with said article. On the contrary, it seems to us that granting to the owners of the land covered by navigable waters the exclusive right to gather and plant oysters in such waters subserves the manifest purpose of the act, which was to preserve and protect the natural oyster beds of this state, encourage the planting and growing, and thus increase the supply of oysters.

We think the trial court erred in denying the injunction prayed for by plaintiffs, and, the facts being undisputed, the judgment should be reversed, and judgment here rendered, granting the injunction in accordance with the prayer of plaintiffs’ petition, and it has been so ordered.

Reversed and rendered.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    GAUSS-LANGENBERG HAT CO. v. ALLUMS et al.
    (No. 67.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1916.
    On Motion for Rehearing, March 2, 1916.)
    1. Judgment <@=3787 — Pbiobity between Judgments and Conveyances — Eeboneous Description in Conveyance.
    Though a deed executed and delivered before the recovery of a judgment against the grantors described the property as lots 2 and 3 in block 2, instead of block 1, it conveyed the property and passed the title to the grantees; and the fact that a new deed was subsequently executed to correct the description did not change the legal status of the grantor and grantee, especially where the grantee took immediate possession of the land intended to he conveyed upon execution of the first deed, and hence the judgment lien did not attach to the land.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1361, 1363-1367; Dec. Dig. <@= 787.]
    2. Paktnebship <@=>6S(1) — Conveyance to Partnership — Legal Title in Paetner.
    A deed to C. R. H. & Co., a firm incapable of holding title, and composed of C. R. H. and another, placed the title in C. R. H. in trust for the firm or partnership.
    [Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 101-107, 109-111; Dec. Dig. <S=3 68(1).]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by J. J. Albums and another against the Gauss-Langenberg Hat Company. From a' judgment for plaintiffs, defendant appeals.
    Affirmed.
    B. L. Aycock, of Kountze, for appellant. Coe & Coe and Singleton & Nall, all of Kountze, for appellees.
   MIDDLEBROOK, J.

Briefly stated, this was an injunction suit brought by J. J. Albums and C. R. Hooks, composing the firm of C. R. Hooks & Co., to enjoin the sale of lots Nos. 2 and 3, in block No. 1, Williams’ addition to the town of Kountze. A temporary injunction was granted, and upon final hearing the injunction was perpetuated. Hooks & Co. bought the property described on the 17th day of May, 1907, from L. G. Roberts and wife, Dora Roberts, and the deed was duly recorded. They paid $1,500 for the lot and store building which stood upon it, and immediately went into possession of the property, having at the same time purchased the stock of goods then in the building, and Hooks & Co. proceeded with the business and was the occupant of said building and property at the time of the bringing of the suit, still doing business there. In December, 1908, appellant, Gauss-Langenberg Hat Company, secured a judgment against L. G. Roberts & Son, a partnership composed of L. G. Roberts and Hooks Roberts. In January, 1909, this judgment was abstracted and recorded in Hardin county, Tex. About November 1, 1909, it was discovered that in the conveyance by Roberts and his wife to Hooks & Co., they had mis-described the lots to be sold, in this: In that deed the lots were described as lots 2 and 3 in block 2, whereas the property should have been described as lots 2 and 3 in block No. 1. The second deed, which was executed on the 1st day of November, 1909, stipulates upon its face:

“This is intended as a correcting deed and to correct the description in a deed made by the same grantors to the same grantees on the 17th day of May, A. D. 1907, which said deed is recorded in volume 47, page 174 et seq., Deed Records of Hardin County, Texas; the property intended to be conveyed by said former deed was and is the same property described in this deed, but erroneously described in said former deed as being in block No. 2, instead of block No. 1, where the property is in fact situated.”

There are several assignments presented in appellant’s brief, but for a disposition of this case it is necessary only to pass upon one proposition presented to this court, which is presented by appellant under different assignments.

The principal contention of appellant in the cáse is that its judgment lien attached to the property described in the correction deed, and that, that deed being executed after the abstract and record of its judgment in January before, the property was therefore subject to said lien. We do not understand such to be the law. Under the facts of this case, the property was conveyed and the title of L. G. Roberts therein passed to Hooks & Co. in May, 1907, before the judgment in behalf of appellant was obtained in December, 1908. The fact that it was afterwards found that the property described in the original deed was erroneously described, and a new deed executed, which stated that it was for the purpose of correcting the description, would in no wise change the legal status of • the vendor and the vendee of the lots, and especially is this true since the grantee went into immediate possession of the very property he bought and the identical property described in the correction deed. Under such statement of facts, no one could be misled, lose any rights, or suffer any injury by reason of the existing judgment and abstract and the record of the same prior to the time of the execution of the correction deed.

Appellant claims, also, that because the deed was made to C. R. Hooks & Co., no title passed out of Roberts to Hooks & Co., because Hooks & Co., being a firm, was incapable of holding title to the property. We think the proper construction to be placed upon this is that C. R. Hooks, one of the members of the partnership or firm, did hold the title of the property in trust for the firm or partnership. . Supporting both of these propositions, see Lindsay v. Jaffray, 55 Tex. 626. The undisputed evidence in this case showing that the title to the property sought to be levied upon by appellant, under its judgment lien, having, long before the securing of the judgment, passed out of Roberts into Hooks & Co., the lien did not and could not attach to said property. This being true, it is unnecessary to consider or pass upon any other assigned errors in this case.

The case is affirmed.

On Motion for Rehearing.

Appellant, in its motion for rehearing, insists that this court erred in not passing upon and rendering an opinion as to appellant, Larned-Carter & Co. Larned-Carter & Co.’s rights and benefits depended upon the same propositions of law as do the rights of the Gauss-Langenberg Hat Company. No separate briefs are filed, and our disposition of the case in the original opinion is a full disposition of it as to Larned-Carter & Co.

The motion for rehearing is overruled.
      <S=^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    BALLARD v. FOUNTAIN BROS.

    (No. 7131.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 28, 1916.
    Rehearing Denied March 23,1916.)
    1. Evidence <&wkey;419(2) — Deeds—Varying by Pabol.
    Where a deed recited that the grantee bought “subject” to the grantor’s indebtedness to the original vendor of the land, evidenced by six notes, the grantor’s parol evidence, in the original vendor’s suit against both parties, that the grantee agreed to pay the indebtedness when buying the land, was not inadmissible as tending to vary the terms of the deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1912; Dec. Dig. <&wkey;>419(2).]
    2. Evidence <&wkey;419(2) — Deeds — Consideration — Showing by Pabol Evidence.
    Oral testimony is admissible to explain or add to the consideration recited in a deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1912; Dec. Dig. <&wkey;>419(2).]
    Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Suit by Fountain Brothers against G. S. Ballard and others. From a judgment for plaintiffs, the named defendant appeals.
    Affirmed.
    Bebout & Penland and R. O. Stotter, all of Waco, for appellant. J. G. Minkert, of Bryan, for appellees.

      Application for writ of error pending in Supreme Court.

   LANE, J.

On the 27th day of March, 1914, Fountain Bros, conveyed to J. W. Wiley certain city lots in Bryan, Tex., and in part payment therefor Wiley executed his six promissory notes, the first for $250 and the other five for $500 each. All of said notes were secured by retention of the vendor’s lien on said lots. Thereafter J. W. Wiley and wife by deed conveyed said lots to appellant G. S. Ballard. Said deed contains the following:

“Eor and in consideration of the sum of six thousand dollars, to us paid, and secured to be paid by G. S. Ballard, as follows: $8,250.00 cash in hand paid, the receipt of which is hereby acknowledged, in exchange of property, said Ballard buying subject to an indebtedness of $2,750.00 evidenced by six notes made by said Wiley, payable to Fountain Bros., at Bryan, Texas, the first for $250.00, and the other five for $500.00 each, * * * bearing 8 per cent, per annum interest, and providing for 10 per cent, attorney’s fees, etc.”

Fountain Bros, brought this suit in the district court of Brazos county against J. W. Wiley and G. 8. Ballard to recover on said notes; against Wiley as maker, and against Ballard on an alleged promise to pay said notes as part consideration for said lots, and for a foreclosure of their vendor’s lien. Other parties were made defendants who need not be mentioned for the purpose of this opinion. Plaintiff alleges that as part of the consideration of said lots G. S. Ballard undertook and agreed to pay off said notes. Defendant answered admitting that he purchased said lots from J. W. Wiley, and says that he bought same subject to said notes and lien of Fountain Bros., but specially denies that he agreed to pay off said notes as alleged by plaintiff, or otherwise assumed their payment. J. W. Wiley was the only witness who testified as to the consideration set out in the deed he gave Ballard. Pie testified that at the tipie the deed was executed and delivered it was the understanding between himself and Ballard that Ballard would pay off the six notes mentioned in said deed; that these notes, together with the $3,250, estimated value of the property of Ballard’s taken in exchange, made the $6,000 expressed in the deed as the total consideration for the lots sold by Wiley to Ballard; that it was agreed that Ballard was to convey to him (Wiley) the land of Ballard valued at $3,250 and to take the indebtedness of $2,750 due Fountain Bros., making $6,000; that the lots were bought by Ballard with the understanding that he was to take care of the $2,-750 evidenced by said notes. He further testified that at the time he made the deed to Ballard there was no discussion between him and Ballard about the recital in the deed that Ballard was to buy subject to the said $2,-750, except that Ballard was to take care of such indebtedness. The case was tried before the court without a jury, and upon the pleadings and evidence the trial court rendered judgment for Fountain Bros, against J. W. Wiley and G. S. Ballard, appellant, for the $3,290.40, principal, interest, and attorney’s fees, and for a foreclosure of their vendor’s lien on the lots sold by them to Wiley. The judgment directed that said lots be sold and the proceeds be applied to the payment of said judgment, and that if said proceeds were insufficient to pay said judgment, and J. W. Wiley paid any balance due thereon, then and in that event he (Wiley) should have execution against Ballard for the collection of such amount as may be paid by him. From this judgment, G. 8. Ballard has appealed.

The contention of appellant is that the deed, by which J. W. Wiley conveyed to him the lots in question, recites that he bought “subject” to the indebtedness evidenced by the six notes of Fountain Bros., and not that he assumed to pay said indebtedness, and that the court erred in permitting J. W. Wiley, his vendor, to testify to alleged verbal agreements between him and Wiley at the time of the execution of said deed, which in effect varies the terms of the written deed and which constitutes the entire and complete agreement between the parties relative to the consideration to be paid by Ballard for the lots.

We cannot agree with appellant in such contention. The clause of the deed relative to the consideration to he paid by Ballard recites that such consideration is the sum of $6,000, $3,250 of which was to be and in fact was paid by a conveyance by Ballard of certain property to Wiley, and $2,750 was to be paid by Ballard to Fountain Bros, in discharge of six notes executed and delivered by Wiley to Fountain Bros, in part payment for the lots in question. The expression, “buys subject to said six notes,” in the latter part of the clause reciting the consideration, does not have the legal effect sought to be given it by appellant, Ballard. We do not think the testimony of the witness Wiley, complained of, tends to vary the terms of the deed, but it is consistent therewith. But if we were to give the clause of the deed mentioned the meaning contended for by appellant, still we could not give it the legal effect contended for by him. It has been uniformly held toy the courts of this state that the recited consideration in a deed may be explained or even added to by oral testimony, so as to show the true consideration. Bristol Bank v. Stiger, 86 Iowa, 344, 53 N. W. 265; Jones on Mort. § 740; Taylor v. Merrill, 64 Tex. 494; Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672.

We conclude that the court did not err in admitting the testimony of the witness Wiley, and hence overrule appellant’s contention.

The evidence was amply sufficient to support the judgment, and, finding no error in the trial of the cause, the judgment of the-trial court is in all things affirmed.

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


author: RAINEY, C. J.

text:
    INVESTORS’ MORTGAGE SECURITY CO., Limited, v. NEWTON et al.
    (No. 7412.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1916.
    Rehearing Denied March 25, 1916.)
    1. Homestead @=»141(1), 142(1) — Liabilities Enforceable — Express Liens.
    Under Rev. St. 1911, § 3422, providing for exempt property of an insolvent decedent’s estate to pass absolutely to the widow and children free from debts of the estate, express liens on a homestead give way to the rights of the widow and children, unless within exceptions named in the section.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 261-268, 269-273, 277-280; Dec. Dig. @=>141(1), 142(1).]
    2. Homestead @=>141(1), 142(1) — Liabilities Eneokceable — Express Liens.
    That an express lien was created on land before marriage of the owner does not affect the rule that express liens on the homestead of an insolvent are subject to the rights of the widow and children of the owner.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. g§ 261-268, 269-273, 277-280; Dec. Dig. @=>141(1), 142(1).]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Suit by the Investors’ Mortgage Security Company, Limited, against Mrs. L. L. Newton and others. Judgment for defendants, and plaintiff brings error.
    Affirmed.
    M. D. Gano and W. N. Coombes, both of Dallas, for plaintiff in error. N. G. Turney, M. G. Owen, E. E. Hurt, and R. L. Hurt, all of Dallas, for defendants in error.

      Application for writ of error pending in Supreme Court.

   RAINEY, C. J.

This suit was brought by plaintiff in error against defendants in error, who are the surviving widow and children, respectively, of E. E. Newton, deceased, to establish an indebtedness and lien on a tract of land owned by said E. E. Newton at his death, and which was at the time of his death the homestead of said Newton and family, consisting of the said widow and children. The answer, in effect, was that said land was the homestead, that the estate of said Newton was insolvent, that said homestead had been set apart to defendants' in error as such, and that said lien was thereby discharged as to said land. The case was tried by the court without a jury, and judg-i ment rendered in favor of plaintiff in error establishing said claim against the estate, but denied the lien on said land. ¡From tha judgment denying said land subject to said lien, this appeal was taken.

The facts are that plaintiff in error is a corporation by virtue of the laws of Great Britain, doing business in Texas by its permission. The defendants in error are the widow and children of E. B. Newton, deceased, and Mrs. Newton is the administra-trix of his estate, which was insolvent at his death. On March 7, 1898, E. E. Newton, then unmarried, executed his note for $600, ’payable to himself, and to secure the payment of same executed a deed of trust to the land in controversy, being 92 acres, with Philip Lindsley as trustee. Said note was duly transferred to James R. Mitchell. Newton remained single until November 17, 1899, when he married defendant in error Lula L. Newton. In June, 1900, E. E. Newton, with his family, moved upon said land and lived thereon as his home until October, 1901, when said Newton and his wife moved to the Territory of Oklahoma, where they acquired a homestead. While living there, in April, 1902, said E. E. Newton made application to plaintiff in error for a loan of $700 to take up said $600 note which was held by plaintiff in error, it having been duly transferred by said Mitchell. Said loan was made, a note for $700 executed by said Newton in renewal and extension of said $600 note, interest and expenses, and for this purpose a new trust deed to said land was executed, with Robert Ralston named as trustee. Said Newton, without being joined by his wife, made the last transaction. Some time after the last transaction E. E. Newton and family, having sold the home in Oklahoma, moved back to Texas and reoceupied and lived on said land as their home until he died in February, 1910, leaving surviving him the defendants in error herein. Mrs. Newton was duly appointed administratrix of his estate, which was insolvent. By order of the probate court said land was duly set apart as the homestead of defendants in error. Said order of the probate court has never been set aside or appealed from. The claim of plaintiff in error was presented to the administratrix for allowance, but same was refused — hence this suit. The land was the separate property of E. E. Newton, it having been acquired by him before marriage, and the indebtedness was for borrowed money, none of which was expended for the purchase price of said land.

There is no controversy about the facts, upon which but one question of law arises for determination, and that is: Did the said land as a homestead descend and vest in defendants in error freed from the lien given by E. E. Newton, while single, the estate of said Newton being insolvent at his death? We are of the opinion that this should be answered in the affirmative. The lien on the land was executed by Newton, it being his separate property, he being at that time a single man. I-Ie subsequently extended and renewed the lien after he had married, and it was a valid and subsisting lien at the time of his death, but his estate was insolvent, which subordinated the lien on the land subjected to the widow’s and children’s claim to homestead exemption.

Our state under its Constitution and laws has made wise provision for the exemption of the homestead for the protection of the head of a family, his wife and children, and especially so for the wife and children; when the husband dies and leaves an insolvent estate. R. S. 1911, art. 3422. This article provides for all exempt property to pass absolutely to the widow and children free from debts of the estate, except in certain cases, this not being within the exception. Therefore express liens on exempt property have to give way to the widow’s and children’s right to such property, unless the debt comes within the exception. This rule was first announced in Robertson v. Paul, 16 Tex. 472, which has been adhered to ever since. This case has been criticized by other jurisdictions, but our Supreme Court has not thought proper to overturn it, and it remains the law to-day. In support of this rule we cite Hoefling v. Hoefling, 167 S. W. 210; Griffie v. Maxey, 58 Tex. 214; Blinn v. McDonald, 92 Tex. 604, 46 S. W. 787, 48 S. W. 571, 50 S. W. 931; Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S. W. 663; Reeves v. Petty, 44 Tex. 249; Bonding Co. v. Logan, 166 S. W. 1132, and numerous others.

While plaintiff in error virtually admits that the foregoing is the rule in this state, yet it contends that this case is different and is not governed by the ruling announced, because Newton was a single man when he created the lien on the land, and it could not be anticipated that he would marry and the widow's right would intervene to defeat the valid lien. We see no material difference in principle whether a man is single or married when a valid lien is fixed, if in the case of the married man the wife does not join in the lien. In the latter case the lienholder knows of the marriage, and takes cognizance of the then existing law; and in the former his marriage should be anticipated, and the same rule of law obtains. The law fixes the status of the property at the time of the death of the parties, and if the estate is insolvent, the lien on exempt property is subordinated to the rights of the widow and children.

In Krueger v. Wolf, supra, the facts are that Mrs. Stuessey, a widow, and her widowed daughter, Mrs. Krueger, were living together as one family upon lots 3 and 4, block 30, in the city of Austin, which was Mrs. Stuessey’s separate property to the extent of a life estate, and her homestead. Mrs. Stuessey owned two other lots, Nos. 11 and 12, block 29, in said city, but no part of the homestead. She incumbered these two lots with a valid lien. Subsequently she died insolvent, leaving Mrs. Krueger as her only heir and only constituent of the family. Mrs. Krueger sought through the probate court an allowance in lieu of a homestead. Lots 11 and 12, block 29, were set apart to her as a homestead, subject to the payment of the lien. On appeal the court reversed the judgment and rendered it in favor of Mrs. Krueger, holding that she was entitled to said lots as a homestead' freed from the lien, thereby vesting absolute title in her.

This case illustrates the principle that should be applied to> the facts of this case. Mrs. Stuessey, at the time she created the lien on the two lots, was authorized to do so, and the said lien was valid. But she died insolvent, and the lien she had theretofore fixed became subordinate to the homestead exemption. So in the instant case Newton had the right to establish a lien on the land, and, subsequently dying insolvent, the lien was subordinated to the homestead rights of his widow and children. Being a rural homestead, it is not subjected to valuation, for the law does not fix any valuation, but only requires that it shall not exceed 200 acres of land.

It did not require any action of the probate court to fix an allowance in lieu of the homestead in this instance, as it became established by reason of the estate being insolvent. I-Ioefling v. Hoefling, supra; Bonding Co. v. Logan, supra.

The principle herein seems a little hard on creditors who have trusted on the faith of creating liens to secure the payment of their debts, but believing such to be the law,' as decided by the decisions, the judgment is affirmed.

Affirmed.
      ®=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    STEGER LUMBER CO. v. McSWAIN et al.
    (No. 1573.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 3, 1916.
    Rehearing Denied March 9, 19167)
    Jud oment <®=»403 — Satisfaction—Effect.
    Equity will not interfere to set aside a judgment where, after its rendition, there was a compromise and settlement, and, in violation of the compromise, execution issued and a judgment was satisfied by sale of the property to a third person; the remedy then being by an action at law for damages for the wrongful taking, and not to set aside the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 764; Dec. Dig. <S==>403.]
    Appeal from Fannin. County Court; S. F. Leslie, Judge.
    Action by Mrs. E. G. MeSwain and others against the Steger Lumber Company, a corporation. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    The Steger Lumber Company, a corporation, filed suit on June 17, 1914, against H. M. Curtis, Shelby Hudson, and Mrs. E. G. MeSwain, doing business as partners, for a balance of $216.77 due on account. After the regular service of citation on the defendants, and at the regular term of court on July 7, 1914, plaintiff took a judgment by default against the defendants for $91.70, with interest from date and costs of suit. On December 2, 1914, the plaintiff in the suit caused to be issued a writ of execution to enforce the judgment; and the sheriff levied the writ on personal property of the defendant Mrs.> E. G. MeSwain, and, after selling such personal property, applied the proceeds of sale to the full satisfaction of the judgment and costs. The plaintiff by attorney on February 20, 1915, entered on the margin of the judgment entry in the minutes of the court that the judgment was satisfied with the proceeds of sale under execution. On June 17, 1915, the defendants filed the instant suit to set aside and cancel the judgment and any execution thereunder, alleging as grounds therefor that after the institution of said suit the defendants and the plaintiff agreed upon a settlement and compromise of the suit, and that thereafterwards defendants .paid to said plaintiff, and plaintiff accepted, the sum of $207.30 in full settlement of the indebtedness sued on; and that it was further agreed and understood by and between the parties to said settlement that the said suit would be dismissed at the costs of the plaintiff therein, and that defendants therein would not be required to make any defense in the suit nor to pay any other sum or sums of money on account thereof. That, relying upon said agreement and settlement, the defendants therein made no appearance in the suit, and paid no further attention to the suit, and did not know until about January 8, 1915, that the plaintiff therein had taken judgment against them in said suit, in violation of said compromise agreement and settlement; that the plaintiff in the judgment had caused an execution to be levied on the property of the defendants therein, and had caused the property to be sold under the execution. The prayer was:
    “Wherefore plaintiffs pray that said defendant be cited to answer this petition, and on hearing hereof the judgment heretofore rendered in said cause of Steger Lumber Company v. H. M. Curtis et al., No. 2862 on the docket of this court, be reopened, vacated, set aside, and annulled, and the execution and sale so had under said fraudulent judgment be declared null and void, for cost of suit, and relief, general and special, to which they may be entitled in law or equity.”
    The jury made the finding, on special issues, that there had been a compromise agreement and settlement before the taking of the judgment. The court entered, in accordance with the prayer of the petition, a decree setting aside and declaring null and void the judgment execution and the levy and sale made thereunder. Appellant appeals, seeking revision of that decree.
    Thos. P. Steger, of Bonham, for appellant. A. P. Bolding and J. W. Gross, both of Bon-ham, for appellees.
   LEVY, J.

(after stating the facts as above). The proceeding in the instant case is by in-tendment in the nature of a bill in equity, wherein appellees are, according to the aver-ments, merely seeking to be relieved against a judgment taken at a former term of court, in violation of a previous compromise agreement and settlement by payment, after suit and before judgment, of the debt sued on in such suit. And the evidence conclusively shows that subsequent to the rendition of the judgment complained of, and nearly four months before the institution of the present proceedings, the judgment had been fully enforced and paid by proceeds of execution sale, and formal entry of satisfaction of the judgment had been duly registered. And there does not' appear any evidence that the plaintiff in the judgment was endeavoring or threatening to make further attempt at enforcing such satisfied judgment. And it appears that the plaintiff in execution was neither the purchaser of the property sold under execution, nor in possession of or claiming the same. Since satisfaction under execution, and formal entry thereof, of the judgment had the legal effect to extinguish and wipe out the judgment debt and cancel the judgment, it could not be legally further executed or enforced. As remarked in the similar case of Fluegelman v. Armstrong, 59 Mise. Rep. at page 508, 110 N. Y. Supp. at page 969:

“It is perfectly clear that at the time the motion was made to open the defendant’s default and to vacate and set aside the judgment there was no judgment in existence, and therefore nothing for the court to exercise its power upon. The judgment had been extinguished.”

Consequently there manifestly appears adequate relief against injury by reason of the judgment, which was legally vacated and extinguished by full satisfaction, and a want of any need or ground for equitable assistance. Equity could give no further assistance and grant no more relief against further injury from the judgment than already adequately existed to appellees. Equity action, under common principle, is not granted where there is no real injury to be apprehended. Watrous v. Rodgers, 16 Tex. 411; Whitman v. Willis, 51 Tex. 421. And equity action is given, in the character of cases such as pleaded, to afford relief either by preventing the deprivation of property or by restoration of the property so wrongfully and unjustly taken. For instance, as a ground of relief courts of equity interpose and prevent the enforcement or further collection of a judgment where the demand upon which it is based has been fully satisfied prior to its entry (Gates v. Steele, 58 Conn. 316, 20 Atl. 474, 18 Am. St. Rep. 268; Greenwaldt v. May, 127 Ind. 511, 27 N. E. 158, 22 Am. St. Rep. 660; Hibbard v. Eastman, 47 N. H. 507, 93 Am. Dec.467), and make restoration of the property wrongfully taken, where circumstances permit (Cook v. Sparks, 47 Tex. 28), and interpose, in circumstances' where the judgment is not in fact satisfied and should be vacated, to prevent its being further enforced (Heath v. Garrett, 50 Tex. 264; Hirshfeld v. Brown, 30 S. W. 962; American Surety Co. v. Bernstein, 101 Tex. 189, 105 S. W. 990). But where, as here alleged and proven, the judgment has since rendition been satisfied by process of execution, the remedy for such wrongful taking of the property is an action for damages. Cleveland v. Tufts, 69 Tex. 580, 7 S. W. 72; Bant of Mertens v. Steffens, 51 Tex. Civ. App. 211, 111 S. W. 782. See, also, Chambliss v. Hass, 125 Iowa, 484, 101 N. W. 153, 68 L. R. A. 126, 3 Ann. Cas. p. 16, showing that involuntary payment of the wrongful judgment does not operate as a waiver of right to restitution or redress by proper action therefor. Therefore, in view of the facts stated, it is believed that it should be held, as insisted by appellant under proper assignment of error, that there is failure to prove any need or ground for equitable relief against injury by reason of the judgment.

The case of Patterson v. Keeney, 165 Cal. 465, 132 Pac. 1043, Ann. Cas. 1914D, 232, relied on. by appellees, is purely a statutory proceeding to set aside a default judgment, which does not obtain so extendedly in this state. It may be remarked, though, that quite a different case would have been presented here if the petition had, besides attacking the judgment as it did, gone further and sought damages as for conversion or wrongful taking of property under execution. And we do not by the remark intend to agree, as urged by appellees, that such character of suit must necessarily be brought in the court where the judgment was originally rendered.

It is concluded that the court erred in not granting the motion for new trial, as complained of by appellant, and the judgment is reversed, and the cause remanded.
      (fessFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. et al. v. ATLANTIC FRUIT DISTRIBUTORS et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 28, 1916.
    On Motion to Correct Record and Set Aside Dismissal, March 9, 1916.)
    1. Appeal and Error <&wkey;79(l) — “Final Judgment” — Several Defendants.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1997, providing that only one final judgment shall bo rendered in any cause, there is no “final judgment” from which an appeal may be taken in a cause against several defendants until it is finally disposed of as to all of them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484, 486-493; Dec. Dig. &wkey;79(l).
    For other definitions, see Words and Phrases, First and Second Series, Final Judgment.]
    2. Appeal and Error <&wkey;79(l) — Final Judgment — Gross-Actions.
    Where two defendants in an original action on contract for the purchase of fruit brought a cross-action against a railway company for damages to the fruit during shipment and the action and cross-action were tried together and judgment was rendered only against one of the defendants and the railway company, tho judgment in the cross-action could be treated only as part of the one judgment allowed in the cause, and, there having been no disposition of the case as to the other defendant, no appeal would lie from the judgment against the railway company.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484, 486-493; Dec. Dig. &wkey;79(l).]
    Appeal from Lamar County Court; S. B. M. Long, Judge.
    Action by the Atlantic Fruit Distributors against J. D. Payne and another, in which the defendants filed' a cross-bill against the Gulf, Colorado & Santa Fé Railway Company. Judgment for the plaintiff against the named defendant only and for that defendant against the cross-defendant, and defendant and cross-defendant appeal.
    Appeal dismissed.
    Terry, Cavin & Mills and Jno. G. Gregg, all of Galveston, and Wright & Patrick, B. B. Sturgeon, and M. H. Baughn, all of Paris, for appellants. A. P. Park, of Paris, for ap-pellee.
   LEVY, J.

The Atlantic Fruit Distributors sued J. D. Payne on contract, to recover the purchase price of a car of bananas, and the First State Bank of Paris as guarantor of the payment of the price. J. D. Payne answered the suit and filed a cross-bill against the Gulf, Colorado & Santa Fé Railway Company, seeking to recover of it damages for alleged negligence respecting transportation of the car of bananas. The charge of the court authorized a verdict in favor of the plaintiff against Mr. Payne and the bank, and the jury so found. And the charge of the court authorized a verdict in favor of Mr. Payne against the railway company, and the jury so found. The judgment of the court, though, as it appears in this transcript, does not dispose of the First State Bank of Paris, and the judgment is not in that respect in conformity with the pleadings, charge of the court, and verdict. J. D. Payne and the railway company each appeal.

The question of jurisdiction of this court is directly presented, upon the ground that there is not a sufficient final judgment under the statute to base an appeal upon. The judgment did not dispose of the litigation as to all parties in the suit. And it is thought that this should have been done in order to have a final judgment under the statute. The statute permits only one final judgment to be rendered in any cause. Article 1997, Vernon’s Sayles’ Statutes. And there is no final judgment in a case against several defendants until the case is finally disposed of as to all. The plaintiff’s suit here was, it is quite certain, upon a contract, and Payne’s cross-action was against the railway company on a tort. It is not open to question that the controversies were quite distinct and severable; yet the causes of action were in fact joined in and tried as one cause. It is analogous to several suits consolidated. Mills v. Paul, 1 Tex. Civ. App. 419, 23 S. W. 189. The judgment on the cross-action therefore could be treated only as a part of the one judgment allowed in a cause, and not as a separate and distinct judgment as such.

The appeal of each appellant must be dismissed for want of jurisdiction to entertain it.

On Motion to Correct Record and Set Aside Dismissal.

lAt a former day of this court the appeal was dismissed for want of jurisdiction, upon the ground that a final judgment in the cause had not been entered. The parties then by proceedings in the trial court caused to have entered a final judgment, by nunc pro tunc order, and now present a certified copy of the judgment so entered and ask that it shall be taken as an amendment of the judgment appearing in the record of the appeal and that we set aside the former order of dismissal. It is believed that the motion must be overruled. In order to confer the right of appeal in the first instance, “notice of appeal” and “the filing with the clerk an appeal bond,” as well as computing the time, must be, by terms of the statute, from the term of court “at which the final judgment in the cause is rendered.” Article 2084, R. S. And until the judgment in the cause is actually entered in that final form it is not in full life and legally effective for review by appeal. Trotti. v. Kinnear, 144 S. W. 326. The actual entry of a judgment final in form, though, may under proper proceedings be by a nunc pro tunc order, which renders the judgment legally effective. But in such instance the right of appeal begins then from the date of the entry of the nunc pro tunc order. Partridge v. Wooten, 137 S. W. 412; Slayden v. Palmo, 90 S. W. 908; Rope Co. v. Brick Co., 150 S. W. 600. And appellants’ right of review beginning, as it does, only at the date of the present judgment, as a final one in form, this court would lack authority to relate the amended judgment back and entertain jurisdiction to review it as a part of and from the date of the premature appeal from the former judgment, interlocutory and not final in form. The present judgment may he reviewed on appeal only when presented as a new and original proceeding of appeal in the manner and way prescribed by statute for appeals. The former appeal, not allowable and not conferring any jurisdiction upon this court to entertain it in the first instance, would be treated for all purposes of appeal as a nullity, and as not capable of being made valid. In case of dismissal of appeal, the transcript is not even regarded as a record of the court. See Rule 62 (142 S. W. xvi). Where the judgment or decree in a cause is final in form and appealable in the first instance, an amendment thereof pending appeal is "allowable and may be made of misrecitals or mistakes. McNairy v. Castleberry, 6 Tex. 286; De Hymel v. Mortgage Co., 80 Tex. 493, 16 S. W. 311. The subsequent correction, though, of a mere misrecital or mistake in a judgment that is directly appealable in the first instance, and over which this court would acquire jurisdiction by the appeal, presents quite a different question from the one now considered. In such case a jurisdictional question is not involved.

The motion is overruled.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes