author: MeMEANS, J.

text:
    COW BAYOU CANAL CO. v. ORANGE COUNTY.
    (Court of Civil Appeals of Texas. Galveston.
    May 24, 1913.)
    1. Judgment (§ 574) — Res Judicata — What Constitutes Judgment.
    A mere notation by the trial judge on his docket is not a part of the judgment or record so that it cannot be relied on as a judgment under the doctrine of res judicata.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1021; Dec. Dig. § 574.]
    2. Limitation of Actions (§ 11) — Injuries to County Property.
    The two-year limitations run against a county to bar an action by it against a canal company for reimbursement for amounts expended in repairing a bridge, the construction and subsequent repair of which was made necessary by the canal.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dee. Dig. § 11.]
    3. Courts (§ 121) — Jurisdiction—Amount-County Court.
    The county court would not have jurisdiction of an action by a county against a canal company to recover a sum less than $200 as a reimbursement for repairs made to a bridge necessitated by the construction of the canal.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426, 428, 450, 452, 458, 459, 466; Dee. Dig. § 121.]
    Appeal from Orange County Court; O. R. Sholars, Judge.
    Action by Orange County against the Cow Bayou Canal Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    See, also, 143 S. W. 963.
    Bisland & Adams, of Orange, for appellant. B. L. Bruce, of Orange, and W. O. Huggins, of Houston, for appellee.

       For othér cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MeMEANS, J.

Orange county, appellee, on December 20, 1910, brought this suit against the appellant, Cow Bayou Canal Company, alleging that appellant was a corporation duly chartered under the provisions of title 60, c. 2, arts. 3115 to 3131, Revised Statutes 1895, to engage in the construction and operation of irrigation canals in Orange county, and that it had constructed such canals, one of which intersects a public road in said county, and that the intersection of said road by said canal made the construction of a bridge at that point necessary; that a bridge at that point had been constructed, but had thereafter fallen into a state of disrepair and become dangerous to travelers, of which appellant was aware; that, appellant having refused to repair said bridge, appellee, as was its duty, in September, 1908, caused said bridge to be repaired, and in doing such repairs it became necessary and appellee did furnish material, consisting of lumber and nails, and employed labor, and for such material and labor appellee expended $80. Ap-pellee further alleged that in August, 1910; it was again compelled to repair said bridge, and in so doing expended for labor and material the sum of $148.05. It prayed for judgment against appellant for the amount so expended by it for such repairs. Appellant answered by general demurrer and special exception and by other pleas, a statement of the nature of which is immaterial in view of the points raised for decision. The ease was tried by the court without a jury and resulted in a judgment for appellee. The appellant, Cow Bayou Canal Company, has appealed.

Appellant, by its first assignment of error, complains of the refusal of the trial court to hear, consider, and sustain its special exception, which is as follows: “Defendant further specially excepts to that part of paragraph 5 of plaintiff’s petition wherein it alleges a charge against this defendant for $80 for work done and material furnished and used in repairing the bridge over defendant’s canal in September, 1908, because if said work was done and material used, as alleged by plaintiff, plaintiff’s petition shows that the work was done and material used more than two years before the institution of this suit, and said claim and demand is barred by the statute of two years limitation.” It appears from the record that when the ease was called for trial, and before the appellant announced ready, it called the court’s attention to and requested a decision upon the special exception quoted, but the court declined to hear and consider the same for the reason that it had passed upon and overruled the exception in question at a prior term of the court.

This is the second appeal of this case; the first being reported in volume 143 S. W. 963. In our decision upon the former appeal we say: “Appellee answered by general demurrer, special exceptions, and plea to the jurisdiction of the court, none of which appear to have been actéd on.” An examination of the record on that appeal bears out the statement above quoted. It appears that on the last trial, when the exception was presented, the court declined to hear and consider or pass upon it on the ground that it had previously ruled upon the same, and that the former ruling was evidenced by notation upon the judge’s docket. The bill of exceptions taken to this action of the court shows that the ruling was not entered upon the minutes, nor was there any other evidence of it than the notation on the docket.

It is clear from the authorities, we think, that a mere notation by the judge on his docket is not sufficient as a judgment of the court and formed no part of the record in the case. Stark v. Miller, 63 Tex. 165; Swearingen v. Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74; Railway v. Carter, 25 S. W. 1023; Massie v. Bank, 11 Tex. Civ. App. 280, 32 S. W. 797.

It seems that the only effect that should be given to an entry of this kind ■would be to enable the parties to have an order entered nunc pro tunc, showing the áction of the court upon this exception. Swearingen v. Wilson, supra. As no steps in this direction were taken before or at the time the exception was presented on the last trial, the court should have then considered and passed upon the same. And it seems that, if the order had been entered on the minutes nunc pro tunc, the appellant could have excepted to it when so entered and would have lost none of its rights by not excepting at the time the notation was made on the docket. Texas & N. O. Ry. Co. v. Texas Tram & Lumber Co., 50 Tex. Civ. App. 182, 110 S. W. 140.

This suit was filed December 20, 1910, and the petition shows that repairs, for which appellee expended $80, were made by it in September, 1908, more than two years before the suit was begun. Prom this it appears that the exception was well taken, and when again presented should be sustained as to this item, unless the pleadings shall be amended to show that the work was done and the cost incurred within two years next before the filing of the original petition. It seems to be well settled that limitation runs against a county in eases such as this. Railway v. Travis County, 62 Tex. 16; Johnson v. Llano County, 15 Tex. Civ. App. 42, 89 S. W. 995; Ward v. Marion County, 26 Tex. Civ. App. 361, 62 S. W. 557.

In the event the special exception is sustained, the sum sued for would be reduced below $200, and the county court would not have jurisdiction. Love v. Dowbarn, 26 Tex. 507; Telegraph Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, and authorities cited.

Por the error in refusing to rule upon the special exception, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    HAMMOND et al. v. PICKETT.
    (Court of Civil Appeals of Texas. Galveston.
    May 31, 1913.
    Rehearing Denied June 19, 1913.)
    1. Exemptions (§ 44) — Scope op Exemptions — ^“Cabria ge’ ’ — Automobile.
    Under Rev. Civ. St. 1911, art. 3785, reserving to every family, as exempt from attachment and execution, one carriage and buggy, a family automobile is exempted, being a carriage within the statute.
    [Ed. Note. — Por other eases, see Exemptions, Cent. Dig. §§ 51-55; Dec. Dig. § 44.*
    Por other definitions, see Words and Phrases, vol. 1, pp. 976-978; vol. 8, p. 7596.]
    2. Exemptions (§ 16) — Family—What Constitutes.
    Where plaintiff while a resident of Louisiana was divorced from his wife, and the judgment of divorce, while only from bed and board, dissolved the bonds of matrimony, except that neither of 'the parties was allowed to remarry, and the wife was given the custody of the issue of the marriage, he was not the head of a family in Texas within the exemption laws, reserving to each family certain property free from execution, even though he contributed to the support of his wife and child; it appearing that they had never been residents of the state of Texas.
    [Ed. Note. — Por other eases, see Exemptions, Cent. Dig. §§ 15-19; Dec. Dig. § 16.*]
    Appeal from District Court, Harris County; Chas E. Ashe, Judge.
    Suit by A. B. Pickett against M. P. Hammond and others. Prom a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Blain & Howth and M. G. Adams, both of Beaumont, and H. P. Montgomery, of Houston, for appellants. H. C. Barkley and John E. Green,' Jr., both of Houston, for appellee.

      For other eases see same topic and section NUMBER in Deo. Dig. £ Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

Charles E. Bryant, having an unsatisfied judgment against A. B. Pickett, sued out a writ of execution, and placed the same in the hands of M. P. Hammond, sheriff of Harris county, who at once levied the same upon Pickett’s automobile. Pickett, alleging that he was a married man and the head of a family, and that he owned no carriage or vehicle other than the automobile in question, and that he used the same for his own personal business in the selling of land and was dependent upon it for making a living, and claiming that the same was exempt from execution and forced sale for the payment of debts under the exemption laws of the state of Texas, applied, in chambers, to Honorable Charles E. Ashe, judge of the eleventh judicial district court of Harris county, for a temporary writ of injunction restraining Hammond, sheriff, and Bryant, the plaintiff in execution, from selling the automobile under said execution. After a hearing upon the plaintiff’s bill and the defendant’s answer and supporting affidavits filed by both parties, the temporary writ of injunction was granted, and from the order granting the injunction both Hammond and Bryant have appealed.

The testimony in the record justifies the following fact conclusions: Pickett has been twice married. He and his first wife were divorced. The issue of his second marriage is a girl, Marie Hazel Pickett, a minor, who is living with her mother in the state of Louisiana. Pickett came to Texas about three years before the trial, and has resided in this state ever since. His wife and child continue to reside in Louisiana, and there is not the slightest evidence to indicate that either of them ever resided in Texas, or that •they intend to come to Texas and reside with him as members of Ms family. On the ■contrary, the testimony indubitably shows that Mrs. Pickett, on November 21, 1910, in the district court of St. Landry parish, La., in a suit brought by her against A. B. Pickett for a divorce, obtained a judgment for divorce from bed and board, and in the same proceeding was awarded the custody of their minor child. Under the laws of Louisiana, as construed by the courts of that state, the only difference between a divorce from bed and board and an absolute divorce is that in the former neither of the parties is at liberty to contract another marriage. “The meaning of the whole law, taken together, appears to us to be applicable to either species of divorce, as well as that which goes .no further than a separation from bed and board as that which at once dissolves the bonds of matrimony; the former is as complete a separation of the parties to the matrimonial engagement as the latter, with the exception that no new marriage of either party could be legally made.” Savoie v. Ignogoso, 7 La. 281. Pickett testified that he had contributed to the support of his wife, but did not know how much, but that he had furnished her and his child with money, but could not give the date when he sent money to his wife the last time, but that he had contributed to her support within the last two years,' and had sent her money and clothes, anything she asked for, and had done so within the last two or three months; that he was contributing to the support of his child right along. Mrs. Pickett testified by affidavit that Pickett had not within the last two years contributed anything to the support of either herself or the child, but in deference to the judgment of the court, we find that Pickett’s statement is true.

Under these facts is Pickett’s automobile exempt from forced sale? It has been held, and correctly so we think, that an automobile is a “carriage” in the sense the word is used in subdivision 10 of article 2395, Sayles’ Civil Statutes (Revised Statutes 1911, art. 3785), and as such is “reserved to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts.” Parker v. Sweet, 127 S. W. 881; Peevehouse v. Smith, 152 S. W. 1197. But is Pickett in a position to claim the exemption? We think not. The exemption is not to the head of the family, but to the family. Did Pickett and his wife and child, in the circumstances stated, constitute a “family” in the sense the word is used in the statutes so as to entitle him to the exemption claimed? The wife, if we may now so designate her, has never resided in Texas, and the evidence is silent as to any intention on her part to reside in this state. She has been divorced from her husband and the relation of husband and wife extinguished. Since the divorce Pickett has been a single man. True, neither he nor his wife can under the law contract a marriage with another person, but with this exception the divorce is absolute. The custody of the child was awarded to the mother by the decree of divorce, and is a member of her family and .not of his. He has no family unless the wife or child constitute it, and the one has been freed from that relation by the decree of divorce, and the other, so far as he is concerned, by the judgment of the court which depriveé him of its custody. We think, therefore, that Pickett is in no position to claim an exemption which the law gives only to a family. We have found no cases directly in point and have been cited to none, but the following are persuasive: Davis v. Cuthbertson, 45 S. W. 426; Heidenheimer Bros. v. Blumenkron, 56 Tex. 314. It is clear that the exemption of the automobile cannot be successfully claimed under the subdivision of the article referred to that exempts all tools and apparatus belonging to a trade or profession. Cates v. McClure, 27 Tex. Civ. App. 459, 66 S. W. 224; Smith v. Horton, 19 Tex. Civ. App. 28, 46 S. W. 401; Massie v. Atchley, 28 Tex. Civ. App. 114, 66 S. W. 582.

The judgment of the court below is reversed, and judgment here rendered for appellant dissolving the injunction.

Reversed and rendered.


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. SHORT.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.)
    Appeal and Error (§ 773) — Dismissal op Appeal — Grounds — Delay in Filins Brief.
    Where a brief by appellant containing 35 pages and briefing 11 assignments of error is not filed, nor a copy served on the attorney for appellee, until within four days of the time for submission of the case, the time is too short to enable the appellee to answer the brief and under the rules the appeal will be dismissed on his motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Action between the Galveston, Harrisburg & San Antonio Railway Company and H. E. Short. Judgment for H. E. Short and the Galveston, Harrisburg & San Antonio Railway Company appeals.
    Dismissed.
    Emil Mosheim, of Seguin, for appellant.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

This case was set for submission on May 28th. Appellant filed his briefs in this court on May 24th, and on the same day filed a copy in the trial court, and had the attorneys for appellee served with notice of such filing. Appellee has filed a motion to dismiss the appeal.on the ground that by reason of the failure to file briefs in time he has been prevented from properly making his defense in this court When ap-pellee insists upon the enforcement of the rules, and the court cannot say that it is evident ample time remains to appellee in which to answer, the appeal should be dismissed. Hamilton v. McLane, 147 S. W. 284, and cases therein cited.

Eleven assignments of error are briefed in this case; the brief containing 35 pages. We conclude that it was not incumbent upon ap-pellees to undertake to answer the brief within the few days left them, and that their motion should be granted.

The appeal is dismissed for want of prosecution, and appellant is permitted to withdraw the transcript.


author: TALBOT, j.

text:
    TURNER v. CUNNINGHAM et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 31, 1913.)
    Quieting Title (§ 44) — Removal ox Cloud —Evidence.
    Where plaintiff purchased certain land, paid certain vendors’ lien notes thereon, and with his wife took possession and made improvements, he was entitled to the removal of a cloud on his title, consisting of a deed to the property emanating from G. and passing to defendants, executed at a time when plaintiff was in possession, in the absence of testimony showing any title in G. to the property or connecting him with plaintiff’s title.
    [Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 89-92; Dec. Dig. § 44.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by Tom Turner against Lula Cunningham and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    E. P. Anderson, of Waxahachie, for appellant.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, j.

This action was brought by appellant, Turner, to have deeds declared null and void, and to remove cloud from his alleged title to the parcel of land described in his petition. Before trial the case as to all of the defendants, except Vivian Knuckles, was dismissed. Vivian Knuckles is a minor, and Tom Ball, Esqr., was appointed guardian ad litem to represent her, and answered by a general demurrer and general denial. It does not appear that any action was taken on the demurrer, but the case was tried on November 29, 1912, by the court without a jury, and the trial resulted in a judgment in favor of the defendant, from which this appeal is prosecuted.

The substance of the first and second assignments of error is that the court erred in ignoring the title, alleged and proved by the plaintiff, of his purchase, possession, payment of purchase money, and valuable improvements made on the land in controversy, and in refusing to annul and cancel the deeds as prayed for in his petition. We are of opinion that under the undisputed evidence as it appears from the record sent to this court, the assignments must be sustained. The plaintiff, Tom Turner, testified, in substance, that in 1902, his wife, Beatrice Turner, preceded him to Texas from the state of Tennessee and bought the property involved in this suit from Luke Haywood; that on September 6, 1902, he came to Texas and went upon the property with his wife, and informed her that the purchase thereof was satisfactory to him; that his wife paid on the purchase of the property the sum of $100, and assumed the payment of some vendor’s lien notes against it; that he remained on the place with his wife until December, 1902, when he returned to Tennessee to wind up his business there; that while in Tennessee his wife wrote him that she was about to lose the property, and for him to come and bring money to pay off the lien notes; that he came back to Texas and found the notes were owned by Captain Patrick and paid to him the sum of $140 in satisfaction thereof. Tom Turner further testified that he made improvements on the lot in question as follows: Barn worth $50, coalhouse $10, chicken house $5 and waterworks $10, and that he and his wife were now living on the property.

R. G. White testified that Beatrice Turner bought the place where she and Tom Turner are now living from Luke Haywood and paid him $100; that he (White) moved Beatrice Turner on the place about the 1st of September, 1902, and moved “Luke Haywood out as she moved in.” Captain M. T. Patrick also testified that the lot in question was bought from Luke Haywood, and that Tom and Beatrice Turner paid him “all the money that was paid to him in person for the notes he held against the place.” There was introduced, it seems, on behalf of the defendant, a deed from J. L. Gammon to Lula Cunningham, alias Lou Keith, dated November 19, 1902, purporting to convey the property involved, and one from Lou Keith dated November 18, 1908, purporting to convey said property to Beatrice Turner for life, and at her death to appellee ATvian Knuckles. This is practically all the evidence that was offered upon the trial of the case as shown by the statement of facts, and the concurrence of the facts established by it, entitled appellant, in our opinion, to the relief sought. Whether the rule in Shelley’s Case applies, and Beatrice Turner acquired under the deed from Lou Keith a fee-simple title to the property in question, or only a life estate, is a question that does not arise on this appeal. Beatrice Turner is still living, and the interest of appellee Vivian Knuckles, if any she has, is an estate in remainder to take effect only upon the death of Beatrice Turner. There is no testimony showing any title to the property in J. L. Gammon, or connecting him with the title asserted by appellant. At the time he deeded the property to Lula Cunningham or Lou Keith, Tom and Beatrice Turner were in possession of the land, under their claim of purchase from- Haywood, and had paid $100 of the purchase money; and at the time the deed from Lou Keith to Beatrice Turner purports to have been executed, they were still in possession of the property, had paid an additional sum of $140 of the purchase price thereof, and had made valuable improvements thereon so far as anything to the contrary appears in the record.

The case, however, does not seem to have been fully developed, and the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


author: HIGGINS, J.

text:
    COONEY v. DANDRIDGE et al.
    (Court of Civil Appeals of Texas. El Paso.
    May 22, 1913.
    Rehearing Denied June 19, 1913.)
    1. Appeal and Error (§ 281) — Questions Reviewable — Motion por New Trial — Necessity
    Court of Civil Appeals Rules 24, 25 (142 S. W. xii), providing that _ the assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for new trial, and a ground not set forth in the motion will be deemed waived unless fundamental, and District and County Courts Rule 71a (145 S. W. vii), requiring a motion for new trial in all cases except in such cases as the statute does not require it, require a motion for new trial in all cases except where the statute does not require it, and a ground of error is not available on appeal unless it has been assigned in the motion, or is fundamental.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.*]
    2. Courts (§ 78) — Rules op Court — Power to Adopt — Statutes.
    Rev. Civ. St. 1911, art. 1524, authorizing the Supreme Court to make rules not inconsistent with law for the government of the courts of the state, confers on the Supreme Court power to change the practice and procedure and to require a motion for new trial in all cases except where the statute does not require it.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig. § 78.*]
    3. Appeal and Error (§ 281) — Right of Appeal — Motion for New Trial — Necessity.
    Under Rev. Civ. St. 1911, arts. 1990, 1991, providing for the rendition of judgment on conclusions of fact found by the judge, and declaring that it shall be sufficient for a party excepting to the conclusions of law or judgment to cause the same to be noted on the record, and he may then appeal without a statement of facts, or further exceptions, the right of appeal attaches in a case tried without a jury, where the trial court files separate findings of fact and conclusions of law, and a motion for new trial is not required, but where separate findings of fact and conclusions of law are not made, a motion for new trial is necessary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §.§ 1650-1661, 3024, 3281; Dec. Dig; § 281.*]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Action by John B. Dandridge and another, in which Hattie O. Cooney intervened. From an adverse judgment, the intervener appeals.
    Affirmed.
    J. W. Parker, of Pecos, for appellant. Buck & Drane, of Pecos, John B. Dandridge and Leslie A. Needham, both of Chicago, Ill., and Spencer B. Pugh, of Pecos, for appel-lees.

      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This case was tried before the court without a jury. No motion for a new trial was filed in the lower court, nor were separate findings of fact and conclusions of law filed by the trial court.

Rules 24 and 25 for the government of the Courts of Civil Appeals (142 S. W. xii), as amended January 24, 1912, read:

“24. The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in Rule 23 [142 S. W. xii].
“25. To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of, in a particular -manner, so as to identify it, whether it be the rulings of the court upon a motion, or upon any particular part of the pleadings, or upon the admission or the rejection of evidence, or upon any other matter relating to the- cause or its trial, or the portion of the charge given or refused, the fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable, in a succinct and clear statement, considering the matter referred to, and must refer to that portion of the motion for a new trial in which the error is complained of.”

Upon last-mentioned date the District and County Court Rules were amended by the addition of Rule 71a (145 S. W. vii), which reads :

“A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute' does not require a motion for a new trial.”

Prior to the amendments indicated, in order to assign error in the Courts of Civil Appeals, it was unnecessary, in any case tried before the court, to file a motion for a new trial, and in cases tried before a jury it was unnecessary in the motion to assign error to any acts or rulings of the court because they became matters of record, and were direct rulings upon matters of law wbicb appellant bad a right to assume would not be changed. Telegraph Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; Clark v. Pearce, 80 Tex. 146, 15 S. W. 787; City of Austin v. Forbis, 99 Tex. 238, 89 S. W. 405; Railway Co. v. Sparger, 11 Tex. Civ. App. 82, 32 S. W. 49.

It is very clear to our minds that the amendments to the rules indicated above were intended to change the rules of practice and procedure indicated by above-cited cases so as to require a motion for a new trial to be filed in the lower court in all cases, except in such cases as the statute does not require same; and it was intended, further, that no ground of error would be available in the appellate courts unless it had been assigned in the motion or unless it was fundamental.

That the Supreme Court has the power to make this change in practice and procedure is also clear. Article 1524, R. S. 1911. The obvious purpose of the change was to give every opportunity to the trial court to discover and correct its own errors, thereby obviating unnecessary appeals and expediting the final disposition of causes. The various Courts of Civil Appeals have so construed the amendments. Nunn v. Veale, 149 S. W. 758; American, etc., v. Mercedes, etc., 155 S. W. 286; Astin v. Mosteller, 152 S. W. 495; Railway Co. v. Emerson, 152 S. W. 469; Davidson v. Patton, 149 S. W. 757; Railway Co v. Gray, 154 S. W. 229; Murphy v. Earl, 150 S. W. 487.

In cases tried without a jury, and where the trial court has filed separate findings of fact and conclusions of law, the right of appeal forthwith attaches by virtue of articles 1990, 1991, R. S. 1911, and motion for new trial is not required. American, etc., v. Mercedes, etc., supra.

No motion for a new trial having been filed in the court below, nor separate findings of fact and conclusions of law, the various grounds of error specified in the assignments of error herein must be considered waived, and will not be considered. No fundamental error appearing, the judgment is affirmed.


text:
    COONEY v. DANDRIDGE et al.
    (Court of Civil Appeals of Texas. El Paso.
    May 22, 1913.
    Rehearing Denied June 19, 1913.)
    1.Appeal and Error (§ 282) — Presentation of Grounds in Court Below —Motion for New Trial.
    ■Where a cause was tried to the court, and separate findings of fact and conclusions of law were filed, a motion for new trial is unnecessary to entitle the defeated party to assign errors in the court’s findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665'; Dec. Dig. § 282.*]
    2. Bills and Notes (§ 351) — Purchaser After Maturity — Defenses.
    Where the holders of notes by a subsequent contract agreed to accept from the maker certain land in lieu of payment, the contract operated as a complete novation of the obligations evidenced by the notes, and consequently a purchaser of the notes after maturity and with notice is bound by the novation, her rights being governed by the contract in force at the time of her purchase.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 878-881, 882y2-885; Dec. Dig. § 351.*]
    3. Appeal and Error (§ 1027) — Review-Harmless Error.
    An error which did not affect appellant’s rights is immaterial, and need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. 1027.*]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Action by Hattie O. Cooney against John B. Dandridge and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. W. Parker and J. A. Buck, both of Pecos, for appellant. John B. Dandridge, of Chicago, Ill., and Spencer B. Pugh, of Pecos, for appellees. 1

      For othér cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Hattie O. Cooney filed suit against John B. Dandridge and Spencer B. Pugh, appellees, to recover upon four promissory notes executed by the appellees, one of the notes payable' to order of Amelia Wol-cott, two payable to order of Myra Wolcott, and one payable to order of Nellie Byrud, alleging that she was the legal owner and holder of the notes. Appellees in their answer to the merits averred that on April 19, 1911, the notes sued upon were the property of John Wolcott, Amelia Wolcott, Myra Wol-cott, and Nellie Byrud, and upon said date were past due, and that upon said date the appellees entered into a written contract with the last-named parties by the terms of which the holders of said notes agreed to accept in full payment thereof the title to section 32, block 2, I-I. & G. N. Ry. Co. survey, in Reeves county, with certain water rights thereon, and appellees were granted 60 days from that date within which to make title to said tract of land and water rights; that on or about May 19, 1911, appellant purchased said notes from the holders thereof and agreed to abide by and carry out the terms of the contract aforesaid between ap-pellees and the Wolcotts and Byrud. That within the 60-day period appellees became and were able to carry out their said contract and deliver section 32, but in order to prevent the same appellant instituted bankruptcy proceedings against appellees, caused a receiver to be appointed who took possession of all of their property, including the papers and documents necessary ■ to enable them to tender section 32 in accordance with their contract, -and also caused an injunction to be issued to prevent the performance of said contract; that the bankruptcy petition and receivership were still pending and undis-posed of, and the injunction continued in force until May 13, 1912; that this action was brought on May 15, 1912, and that at all times since May 19, 1911, appellees had been ready and willing to carry out their obligations under the aforesaid contract, and were then ready and willing to do so, and they tendered in court deed to the section of land and water rights, and prayed that the notes sued upon be canceled and the aforesaid contract specifically performed. The case was tried before the court, and separate findings of fact and conclusions of law were filed as follows:

“Findings of Fact.
“I. That defendants executed and delivered the promissory notes described in plaintiff’s petition at the date, in the amount and at the rate of interest therein described, said notes being due and payable at the time alleged in said petition.
“II. Plaintiff was at the time of the filing of the suit, and at the date of trial, the legal owner and holder of said notes.
“III. Plaintiff purchased said notes from the original payees therein after the maturity of same.
“IV. After the execution of said notes by defendants, and before the purchase of same by the plaintiff, defendants entered into a contract with the original payees of said notes, whereby the original payees of said notes were to cancel same, in consideration of the defendants herein, within 60 days from the date of said contract, tendering to the original payees in said notes deed to section 32, block 2, H. & G. N. Railway Company land in Reeves county, Tex., with water rights thereon, defendants first having cleared said section of land of an incumbrance of $7,500 to one Fairbanks, the original payee in said notes contracting to take said section numbered 32, subject to a lien of $10,000 on same, held by the assigns of E. Leslie Cole, which lien is evidenced by a certain deed of trust in which Sherman M. Booth was the trustee.
“V. That after the entering into of said contract between the defendants herein and the original payees of said notes, the plaintiff herein purchased said notes from the original payees with full knowledge of said contract aforementioned, whereby said notes were to be canceled on the tendering of said deed and the clearing up of said lien.
“VI. I further find as a fact that the plaintiff contracted and agreed with Amelia Wolcott, Myra Wolcott, Nellie E. Byrud, the original payees of said notes, to assume, and carry out the aforementioned contract with the defendants herein, which said agreement with the original payees of said notes was made in writing and in consideration of the transfer to plaintiff of said notes.
“VII. That before the expiration of the 60 days provided in the aforementioned contract, the plaintiff, Hattie O. Cooney, instituted bankruptcy proceedings against the defendants herein and had a receiver appointed for the effects of the defendants herein, and by such action prevented defendants from making the tender of the deed aforesaid, within the. 60 days.
“VIII. I further find that plaintiff filed in the district court of Reeves county a suit against the defendants herein, and sued out a writ of attachment against the defendants herein, which action on the part of the plaintiff further prevented the defendants from carrying out the contract within the 60 days aforesaid.
“IX. I find that but for the action of the plaintiff the defendants could and would have tendered to the plaintiff herein as the as-signee of the original payees of said notes, in pursuance of said contract, the deed to section 32, together with the water rights thereon, with a release of said Fairbanks lien, before the expiration of the 60 days provided for in said contract.
“X. I further find that the defendants herein have been ready and able to carry out said contract since before the expiration of said 60 days, but have to this time been prevented from doing so by the acts of the plaintiff.
“XI. I further find that defendants now tender to plaintiff the deed, water rights, and release specified in said contract.
“Wherefore, I conclude, as a matter of law, that plaintiff should take nothing by her suit, and that defendants have a specific performance of their said contract.”

Judgment was rendered that appellant take nothing by her suit on the notes declared upon, and that specific performance of the contract pleaded by the defendants be decreed, and that the appellant recover of Dandridge and Pugh the title to said section of land, and that the notes sued upon be canceled.

We adopt the findings of fact of the trial court.

Appellees object to the consideration by this court of any of the assignments of error because motion for a new trial was not filed in the lower court. The case was tried before the court, and separate findings of fact and conclusions of law were filed. For the reasons indicated in American, etc., v. Mercedes, etc., 155 S. W. 286, and Cooney, Intervener, v. Dandridge et al., 158 S. W. 177, this day decided by this court, the objections are not well taken, and the assignments will be considered.

The first, second, third, and fourth'as- ■ signments relate to the same question, and it is contended that the court should have rendered judgment in favor of plaintiff for the amount of the notes sued upon, and erred in specifically enforcing against appellant the contract set up in appellees’ answer, because the same was not signed by her and she never became a party thereto, and the same could not be specifically enforced against her.

The contract entered into between Dand-ridge and Pugh and the Wolcotts and Byrud operated as a complete novation of the contracts evidenced by the notes sued upon. By this contract Dandridge and, Pugh acquired the right to pay off and discharge the notes sued upon by a conveyance of the land and water rights described in their answer, and since appellant acquired the notes after maturity, and with full knowledge of the rights of Dandridge and Pugh under this contract, she therefore took the notes subject to the rights acquired by Dandridge and Pugh under their contract, and she did not have the right to demand payment in specie according to the original terms of the notes. There is no question here involved of enforcing specific performance of a contract against one who is not a party to the contract, as contended by appellant, but it is simply a matter of protecting Dandridge and Pugh in the right to make payment of the notes as indicated. The cases cited by appellant are in no wise in point, and it will serve no useful purpose to discuss the same.

The sixth, eighth, tenth, and eleventh assignments of error complain of the action of' the trial court in admitting in evidence certain documents. It is unnecessary for us to inquire whether or not the action of the court in so doing was correct. The error, if any, in no wise affects appellant’s rights and was harmless.

Under the seventh assignment it is objected that the court erred in admitting in evidence the contract set up in appellees’ answer, upon the ground that there was a variance between the instrument offered and described in the answer. This objection is without merit, and the assignment is overruled.

Affirmed.


text:
    CLOPTON et al. v. ABEE.
    (Court of Civil Appeals of Texas. San Antonio.
    May 7, 1913.
    Rehearing Denied June 28, 1913.)
    Vendoe and Puechaser (§ 180) — Purchase Money — Agreements to “Sell and Transfer” Notes — Effect.
    A contract of sale of real estate stipulated that the purchaser should “sell and transfer” to the vendor two notes, one for $750 and one for $500, executed by a third person to the purchaser; that the deed should not be delivered until the $750 note was paid; and that the vendor should use diligence in collecting it for at least eight days after maturity. The deed executed by the vendor recited the $500 note as cash paid. No lien was retained on the land. The $500 note was delivered without indorsement and received without protest. Meld that, notwithstanding the term “sell and
    transfer,” the purchaser was only required to make an indorsement without recourse; the term “transfer,” when applied to negotiable paper, being a general term, showing that the beneficial interest in the paper has passed to another, but not indicating the manner of the transfer — quoting 8 Words and Phrases, pp. 7069, 7070.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. § 366; Dec. Dig. § 180.*
    For other definitions, see Words and Phrases, vol. 7, pp. 6407, 6408.]
    Appeal from District Court, Bexar County; Ed H. Wicks, Special Judge.
    Action by C. C. Abee against J. A. Clop-ton and W- C. Holland. From a judgment for plaintiff against both defendants and in favor of defendant Holland against defendant Clopton, defendant Holland appeals.
    Reversed and rendered in part and affirmed in part.
    J. I. Kercheville, of San Antonio, for appellant. Jay Minter, of San Antonio, for ap-pellees. '

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

C. C. Abee sued J. A.

Clopton and W. C. Holland on a note for $500, executed by Clopton to Holland, alleging that Clopton was insolvent, and that said note was delivered to him in part payment for certain lots sold by him to Holland, praying for judgment against both defendants and for foreclosure of vendor’s lien upon said lots. By trial amendment he alleged that Holland agreed to sell and transfer the note to plaintiff, and to indorse in blank and deliver said note to plaintiff, and had fraudulently, through oversight of plaintiff, failed to indorse said note. Holland answered by general denial, and specially denied that he had guaranteed, indorsed, or agreed to pay or indorse the said note, and alleged that he was not liable upon the same. He also denied that a lien existed upon the lots, but it is not necessary for the purposes of this appeal to state such allegations. The case was tried before the court, and judgment rendered in favor of plaintiff against Clop-ton as the maker of the note, and against Holland as an indorser or surety, and in favor of Holland over against Clopton, and against plaintiff on his claim for foreclosure of vendor’s lien- This judgment was appealed from by Holland.

The findings of fact filed by the trial court are adopted as follows:

“That on December 1, 1911, plaintiff and defendant W. C. Holland entered into the following contract, viz.: ‘State of Texas, County of Bexar. This memorandum wit-nesseth: That C. C. Abee and wife, Annie Abee, parties of the first part, and W. C. Holland, party of the second part, enter into the following contract: First parties agree to sell to second party lots Nos. 46 and 47 in block No. 11, city block 1619, house No. 1041 Denver Boulevard, in the city of San Antonio, Bexar county, Texas, and second party agrees to pay therefor eighteen hundred dollars, as follows: (1) Second party agrees to assume a note of $260.00 due the West End Lumber Company on said lots. (2) Second party agrees to sell and transfer one note with accrued interest for $750.00, dated Sept. 24, 1911, with interest at 7% per annum, and due Dec. 24, 1911, and also one note for $500.00, and accrued interest, dated Sept. 17, 1911, with interest at 7% per annum, payable March 17, 1912, both of said notes made by J. A. Clopton to W. C. Holland. (3) Second party agrees to pAy the balance in cash. It is understood and agreed that warranty deed from first parties to second party is to be delivered on the payment of said $750.00 note above described, and if said note is not paid when due, first parties agree to use due diligence in collecting same, for at least eight days thereafter. Abstract is to be furnished to said property showing good title to first parties, and if said title is not good, this contract to be of no further force or effect Said property to be deeded free of all incumbrances and liens except as to $260.00 note. Witness our hands at San Antonio, Texas, this 1st day of December, 1911. [Signed] C. O. Abee. Annie Abee. W. C. Holland.’
“I further find that said $500 note sold by defendant Holland to plaintiff is as follows : ‘$500.00. San Antonio, Texas, June 17th, 1911. On or before March 17th, 1912, for value received, I promise to pay to the order of W. C. Holland, at San Antonio, Texas, Five Hundred and No/100 Dollars, with interest at the rate of 7% per annum from date. J. A. Clopton.’ And that the following words appear on the back of this note, ‘Pay to C. C. Abee with — ’
“I find that at the time said note was delivered no writing was contained on the back thereof; that the defendant Holland did not attempt to indorse it at the time the trade was closed on January 12, 1912, but that some time afterwards plaintiff’s attorney presented same to said Holland for indorsement, who refused to indorse with recourse, and that said indorsement was not completed because plaintiff’s attorney objected to the same being written ‘without recourse,’ which defendant offered to do.
“I further find: That in compliance with said contract of sale the plaintiff executed and delivered to said defendant Holland a general warranty deed to said lots, and that the consideration expressed therein was as follows: ‘Eighteen hundred dollars to us in hand paid by W. C. Holland as follows: Fifteen hundred forty dollars in cash, the receipt of which is hereby acknowledged, and the assumption of a balance of two hundred sixty dollars due the West End Lumber Co-of San Antonio, Texas.’ That no lien was reserved in said deed, but a vendor’s lien clause was scratched out, and that the contract between them provided that said property was to be deeded free of all incumbrances and liens except as to the $260 note, which deed was delivered on the payment of said $750 note on January 12, ,1912, and X further find as a fact that said $500 note herein sued upon by plaintiff was a part of the purchase money for said lots. That J. A. Clopton, the maker of said $500 note, was not on January 12, 1912, insolvent, but that he is now insolvent.”

The trial court concluded as a matter of law that by reason of the agreement to sell the note and its sale, Holland became liable thereon as indorser with recourse as much so as though he had in fact indorsed the same in blank or with recourse.

Appellant attacks this conclusion of the court, and by various assignments of error contends that the words “sell and transfer” used in the contract cannot be construed to mean an agreement to indorse with recourse or a contract to guarantee the payment of the note, but merely an agreement to convey the right, title, and interest of the holder in the note. We gather from the briefs of the parties that the decision of the court was based largely upon the opinion in the case of Andrews v. Whitehead, 60 S. W. 800. In that case the owner of notes offered them for sale through agents who agreed that he would indorse them, but he refused to do so.’ The agents sued for commission, and proved that they notified him of the sale, and requested him to send them the notes assigned in blank, to be delivered to the purchaser, and he telegraphed them confirming the sale, and stating he would send them the notes assigned in blank- The court held this promise was equivalent to a promise to indorse; that the term, “assignment,” is frequently used to denote an indorsement; that, if the owner writes his name on the note without using words which distinctly limit his liability, he thereby becomes liable as an in-dorser, and the words used will be construed most strongly against him; that, while the owner did not write his name on the notes, he agreed to assign them in blank, and if he had written such agreement on the notes, and signed the same, he would have been liable as indorser; that the transfer of commercial paper payable to order is usually by indorsement, and when the owner agreed to transfer the notes he will be held to have agreed to transfer them in the usual way, unless otherwise stated, and, not having stated explicitly the kind of transfer he was willing to make, he was bound to make to the purchaser the kind of transfer demanded by him which could fairly be said to come within the terms of his promise.

This case is very different from the case just discussed. In this case the agreement to sell and transfer the note cannot be considered alone, but must be considered in connection with the other portions of the contract; and, wlien so considered, it appears that the note was to be transferred and received as a part payment of the consideration for certain lots. It further appears that the deed was not to be delivered until the $750 note was paid, and that the grantors in the deed were to use due diligence in collecting such note for at least eight days after its maturity. This would indicate that the $750 note was delivered at the time the contract was made. No finding is made as to when the $500 note was delivered. The deed recited the $500 note as cash paid; that is it was included as cash in the recital of the aggregate amount of cash paid. No lien was retained upon the land, and the note was delivered without indorsement and received without protest, and while plaintiff, by trial amendment, alleged that he overlooked appellant’s failure to indorse said note at the time of delivery in the rush of closing the deal and counting the money, yet it is found by the court that it was some time after-wards before plaintiff had his attorney present the note to Holland for indorsement — whether before or after maturity is not shown. Nor did the court make a finding as to the date when plaintiff discovered that the note was not indorsed. “The term ‘transfer,’ when applied to negotiable paper, is a general term showing that the beneficial interest in the paper has passed to another, but not indicating in what manner the transfer has been made. It may be transferred by indorsemhnt, which has the technical meaning of writing on the back, or by delivery, or by independent writing,” etc. 8 Words and Phrases, -p. 7069. Under our statutes a verbal transfer had the effect of protecting plaintiff against any plea of failure of consideration. Word v. Elwood, 90 Tex. 130, 37 S. W. 414. As the word “transfer” does not necessarily convey the idea of an indorsement with recourse, it becomes necessary to consider the words “sell and transfer,” in connection with, and as explained by, the terms of the contract in which such words are used, and the construction placed upon such contract by the parties thereto. The object of the parties, as expressly pleaded by plaintiff, and shown by the entire transaction, being to transfer this note as part of the payment for land, the word “transfer” should be construed to mean the character of transfer as would effectuate the object to be attained, and should not be given a construction which would not make the note a payment, but merely security for the fulfillment by Holland of an obligation to pay to plaintiff the amount of the note. To indorse a note without restrictions, where it is transferred for property received, ordinarily carries with it the idea that the note has not been accepted as payment, but such inference may be rebutted by showing that it was received as payment, and we have two eases in Texas, cited by appellees, where such an indorsement in view of the contract under which it was made was held to pass merely the title, and not to create liability upon a contract of indorsement. These cases are Wade v. Wade, 36 Tex. 530, and Hanrick v. Alexander, 51 Tex. 502, the latter of which cites the former with approval.

In this ease appellant, when called upon, offered to indorse the note without recourse, but his offer was declined. Construing the words, “sell and transfer,” most strongly against appellant, but in harmony with the remainder of the contract, and the construction given it by the parties, the most that could be asked by appellant was an indorsement without recourse. The evidence wholly fails to show any contract to indorse the note with recourse, and the trial court erred in so holding.

The judgment will be reversed in so far-as it awards a recovery against appellant, and here rendered that appellee take nothing as against appellant, and as a necessary consequence that appellant take nothing against Clopton, and in all other respects affirmed.


author: HODGES, J.

text:
    TODD et al. v. BEMIS.
    (Court of Civil Appeals of Texas. Texarkana.
    May 27, 1913.
    Rehearing Denied June 5, 1913.)
    1. Mortgages (§ 334) — Deed of Trust — Foreclosure — Trustees — Authority to Sede.
    A deed of trust to secure a debt provided that, in case of default, the trustee was fully authorized and empowered, and it was “made his special duty” at the request of T., the beneficiary, made at any time after the maturity of the debt, to sell the described premises for cash, etc. Held, that though such provision be construed as requiring, not only the maturity of the debt, but the request of the creditor, to confer legal authority on the trustee to sell, the creditor having requested the trustee to sell, his failure to promptly execute the power ■which was prevented by the wrongful suing out of an injunction which compelled him to suspend the proceedings until long after the date specified in the original notice of sale and after the death of the credtior did not deprive him of the power to sell the land under the original authority on the dissolution of the injunction, and it was immaterial that, after the creditor’s death, a new request was made by his heirs.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1017, 1018; Dec. Dig. § 334.*]
    2. Mortgages (§ 358) — Trust Deed — Foreclosure — Sale in Parcels.
    Where a trustee under a deed to secure a debt had power on the debtor’s death to sell all of the property, a sale of a portion thereof was not objectionable because he did not sell it all.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1072, 1073; Dee. Dig. § 358.*]
    3. Mortgages (§■ 345) — Foreclosure—Deed of Trust — Power of Sale — Time.
    Where a trustee’s sale on foreclosure of a deed of trust under authority conveyed by the creditor was suspended by injunction pro-ceedmgs, the trustee’s failure to sell on the first day available for that purpose after the dissolution of the injunction did not affect the continued existence of the power of sale, which, having once been conferred, remained until executed.
    [Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. § 1043; Dec. Dig. § 345.*]
    4. Mortgages (§ 346) — Trust Deed — Foreclosure — Sale — Bequest by Owner oe Deed.
    Where a deed of trust provided that, on default, the trustee was authorized, and it was made his special duty, at the request of the beneficiary at any time after the maturity of the debt to sell the premises, etc., the deed did not confine the request to the person named in the deed as beneficiary, but extended as well to the person who succeeded him as owner of the debt on the beneficiary’s death before foreclosure.
    [Ed. Note. — Eor other eases, see Mortgages, Cent. Dig. § 1044; Dec. Dig. § 346.*]
    Appeal from District Court, Cass County; P. A. Turner, Judge.
    Action by George T. Todd and others against H. C. Bemis. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    O’Neal & Allday, of Atlanta, P. H. Pren-dergast, of Marshall, and Chas. S. Todd, of Texarkana, for appellants. Glass, Estes, King & Burford, of Texarkana, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Por other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

On May 26, 1887, J. T. Smith executed a note for $2,500 payable to E. W. Taylor on November 1st thereafter. In order to secure that note, he gave a deed of trust on certain real estate described as being situated in Marion and Cass counties. W. T. Armistead was named as trustee. The deed of trust contained the usual stipulations common to such instruments, authorizing the lands to be sold in default of the payment of the note, and providing for the appointment of a substitute trustee in case of the failure or refusal of Armistead to act-Smith defaulted in the payment of the note at maturity, and Taylor, being under the impression that Armistead had refused to execute the trust, appointed R. R. Taylor as substitute trustee. R. R. Taylor advertised the property, and sold it on April 2, 1889, to W. T. Connery. Connery took the title in behalf of E. W. Taylor, who was his father-in-law. Taylor afterwards sold the property to J. M. Bemis, who remained in its undisturbed possession from the date of his 'purchase until December, 1900. In June of 1889, after the execution of the original trust deed, and after the sale by the substitute trustee and the deed executed by him had been recorded in Cass county, J. T. Smith sold the land to W. J. Williams. Williams subsequently died, and W. T. Williams was appointed his executor. The executor and the heirs at law of W. J. Williams thereupon instituted a suit against Bemis, and recovered a judgment awarding them the land which had been sold by R. R. Taylor as substitute trustee. This case is reported in Bemis v. Williams, 32 Tex. Civ. App. 393, 74 S. W. 332. It appears that the judgment rendered in favor of the plaintiffs in that suit was predicated upon the holding that Armistead, the original trustee, had not refused to execute the trust, and that the appointment of a substitute trustee and a sale by him were void and conveyed no title. Soon after the final decision of that suit E- W. Taylor again requested Armistead, the original trustee, to execute the trust and sell the land. In compliance with that request, Armistead, in the manner provided in the deed of trust, advertised the land for sale at Jefferson, Marion county, on the first Tuesday in July, 1903. After the notices of sale were posted, W. T. Williams, the executor of the estate of W. J. Williams, and other parties representing the same interest, now represented by the plaintiffs in this suit, instituted injunction proceedings in the district court of Marion county against Taylor and Armistead, and secured a temporary order restraining them from selling the land. A general demurrer to the petition was sustained by the district court on final hearing, and the suit dismissed. On appeal to the Court of Civil Appeals the judgment of the trial court was reversed, and the cause remanded. The case was again tried, and the temporary injunction theretofore granted was perpetuated. On appeal to the Court of Civil Appeals this judgment was affirmed. See Taylor v. Williams, 105 S. W. 837. A writ of error was granted by the Supreme Court, and the judgments of the Court of Civil Appeals and the district court were reversed and the cause dismissed. Taylor v. Williams, 101 Tex. 388, 108 S. W. 815. After this final decision by the Supreme Court, which was rendered on the 8th day of April, 1908, Armistead again advertised the land, and designated June 2, 1908, as the date of the sale, and on that date that portion of the land which was situated in Cass county, and which is the land involved in this suit, was sold under the terms of the trust deed, and purchased by H. C. Bemis, the appellee herein. The trustee executed to Bemis a deed in all things regular upon its face. In December, 1908, this suit was instituted by Geo. T. Todd and others, consisting of the heirs and purchasers holding under W. J. Williams, against Bemis for the recovery of the Cass county lands sold at that time. The case was tried before the court without a jury and a judgment rendered in favor of Bemis, from which this appeal is prosecuted.

It is conceded that J. T. Smith is the common source, and that the appellee holds by a superior title, unless the sale made by Armi-stead in June, 1908, is void. It appears from the testimony that, after Taylor requested Armistead to proceed to execute the trust and sell the land according to the terms of the trust deed, he died pending the litigation that followed; that after determination of that litigation and the rendition of the final judgment in the Supreme Court in April, 1908, Armistead was requested by the attorney representing the heirs of Taylor, and all those who claimed any interest under the original trust deed, to proceed with the execution of the trust and sell the land. The main ground relied on for reversing the judgment appealed from is the lack of authority in Armistead as trustee to sell the land at the time he did. It is claimed that the sale was void because the land was not advertised and sold in accordance with the request of E. W. Taylor made before his death. We quote the following from the written argument filed by counsel for appellants as a concise statement of appellants’ contention: “It was perhaps possible, after Taylor’s death, to have sold under his request made while alive, and have passed title; but this could have been done only by the trustee proceeding, immediately after the final dissolution of the injunction and removal of the legal restraint, to complete the sale which had been enjoined. The final dissolution of the injunction occurred on April 8, 1908, upon the overruling by the Supreme Court of the motion for rehearing in the injunction suit. If the trustee had immediately thereafter advertised the same sale, and have sold on the first Tuesday of the next following month, May, 1908, it is possible, and it may be conceded in this argument, that such sale would have been effective to pass title. There was ample time for him to have completed that interrupted sale on the first Tuesday of the next following month; but when that day passed the sale which Taylor had requested and authorized could not be completed; and no living person had power or authority to request or authorize a new sale. It may not be strictly correct to say that the power of the trustee to sell was revoked by the death of Taylor; but such death rendered it impossible for the trastee to exercise that power in accordance with the requirements of the trust deed.”

The facts being undisputed, the question of law is: Did Armist.ead have authority to make the sale he did? In order to determine that question, we must look to the deed of trust from which he derived his authority. That instrument contains this provision: “But in case of the failure or default in the payment of said promissory note, together with the interest accrued and attorney’s fees, according to its terms and face at the maturity of the same, then in such an event the said W. T. Armistead is by these presents fully authorized and empowered, and it is made his special duty, at the request of said E. W. Taylor, at any time made after the maturity of said promissory note, to sell the above-described premises and tracts and lots of land to the highest bidder for cash in hand at the courthouse door in Jefferson, Marion county, Texas,” etc. Construing that language as requiring, not only default in the payment of the debt at maturity as essential to confer authority upon the trustee to make the sale, but also a request from Taylor that he proceed with the execution of the trust, we think the trust deed was properly and legally executed- It is not disputed that in 1903, prior to Taylor’s death, full authority had been conferred upon Armistead to sell under the terms of the deed of trust. His failure to promptly execute the power was prevented by the appellants in wrongfully suing out the writ of injunction, which compelled him to suspend proceedings till long after the date specified in the original notice and after the death of Taylor. It is not contended that these conditions operated to deprive Armistead of the power with which he had once been invested. But it is clamed that he failed to proceed under that particular power and in accordance with the particular terms of the request made by Taylor. If Armistead upon the request of Taylor had the power to sell the land, and did sell it in accordance with the terms of the trust deed, his act is valid, regardless of the fact that others having no authority to do so joined in the request that he execute the power. The record does not justify the conclusion that Armistead acted solely at the request of the heirs of Taylor and without reference to the previous request made by Taylor himself before his death. On the contrary, according to the evidence and the recitals in the notices of sale, Armistead in making the sale he did was continuing the execution of the original authority arising from the request made by Taylor.

It is insisted that because he failed to sell all of the land described in the trust deed, and failed to make the sale on the first available day after the final judgment dissolving the writ of injunction, he failed to sell in accordance with the terms of the request made by Taylor. That request seems to have been general in its nature—that Ar-mistead proceed to execute the trust in accordance with the terms of the mortgage. Presumably this implied that Armistead should sell all of the land described in the deed. If Armistead had power to sell all, manifestly he had power to sell a portion, and it was not necessary that he sell all in order to convey a valid title to a part only. The deed under which he acted did not prescribe any unusual conditions or terms for him to observe in making the sale. A sale of only a portion would manifestly be a benefit to the mortgagee to the extent at least of that which was unsold, and is something of which he should not be heard to complain in the absence of a showing that he had sustained some special injury by reason of that method of procedure.

The failure to sell on the first day available for that purpose after the dissolution of the writ of injunction does not affect the continued existence of the power of sale. That having once been conferred upon Ar-mistead remained until it was executed.

While we think this judgment should be affirmed because the evidence shows that Armistead acted regularly at the request of Taylor in the execution of the trust, we are inclined to think he might have proceeded, under the terms of the instrument at the request of the owner of the claim secured by the trust deed after, the death of Taylor. As supporting their contention that á request from Taylor was necessary, appellants cite the ease of Boone v. Miller, 86 Tex. 80, 23 S. W. 574. In that case there was a contest between Boone, who claimed certain real estate under an execution sale, and Miller, who claimed the same property under a sale by a trustee foreclosing a lien. Reiger, the debtor had executed a deed of trust upon the land there in controversy to secure a debt he owed to J. N. Upton. The trust deed having been executed and recorded before the execution creditor acquired any lien upon the land, the purchaser at the trustee’s sale made thereafter took a good title if the trustee’s sale was valid. In discussing the questions involved the court said: “The deed of trust provides that the sale may be made ‘at the request of J. N. Upton, made at any time after the maturity of the note.’ The last sale was made at the request of W. J. Miller, and the question is: Had the trustee the power to sell at his request? The power of sale in a deed of trust is an important power granted by the maker, and he has the right to place upon it such limitations and conditions as he may deem proper for his own protection. When the exercise of a power is made to depend upon the direction or request of a given person, then the direction or request of that person must be given in order to authorize the exercise of the power. 18 Amer. & Eng. Enc. Law, p. 977, par. 13; Richardson v. Crooker, 7 Gray (Mass.) 190; Haymond v. Jones, 74 Va. 317. Looking to the transcript, we find copied into the statement of facts that portion of the deed of trust which confers the power to sell, with quotation marks, indicating that it is literally copied. There is no provision for the sale to be made at the request of the holder of note, which is common in such instruments, and the fact that such provision is omitted goes far to strengthen the conclusion that the purpose was to confide the authority to put the power of sale into active operation to Upton alone. It may be that Reiger was willing to trust to Upton, believing that he would not direct the sale under improper circumstances; but, no matter what the reason may have been, Reiger had the right to impose the limitation, and the court has no power to disregard it.” It will be observed that this decision rested upon the peculiar language of the trust deed, which seems to have made the power of the-trustee to sell the mortgaged property at any time depend solely upon a request to do so by Upton. In the case now under consideration the language of the trust deed is quite different. In view of the fact that promissory notes may be assigned at any time, and that the trust deed with its power of sale is manifestly intended to secure not only the original payee, but any subsequent holder of the debt secured, there is little reason for placing upon the trust a limitation which will practically defeat the power of sale after transfer, unless the terms of the instrument can bear no other reasonable construction. Here in the event of default of payment at maturity the trustee is “by these presents fully authorized and empowered, and it is his special duty,” etc., to execute the trust. Erom this it would seem that full power of sale is given by the terms of the instrument itself upon the happening of the contingency mentioned — default in payment —and it is made his special duty to perform that service when requested so to do by Taylor. If that be a correct construction of the language creating the power of sale, it is immaterial whether Armistead proceeded under the request of Taylor or that of the holders of the debt alone. But, as before said, it is not necessary to base our conclusion as to the correctness of the judgment upon the latter proposition. We think the facts justified the judgment of the court, if it should be held that Armistead had power to act only in the event he had been requested so to do by Taylor.

The judgment of the district court is affirmed.


author: REESE, J.

text:
    COLEMAN et al. v. GARVIN et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 22, 1913.
    Rehearing Denied June 19, 1913.)
    1. Vendor and Purchaser (§ 279) —Vendor’s Lien — Actions—Necessary Parties.
    In a suit against a purchaser of real estate on purchase-money notes executed by him and to foreclose a vendor’s lien, a subsequent purchaser of the land from the purchaser is not a necessary party, though he assumed payment of the notes on condition that the vendor and purchaser furnished affidavits of limitation title.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 778-782; Dec. Dig. § 279.*]
    2. Parties (§ 56) — Proper Parties — Discretion oe Court.
    Under Rev. St. 1895, art. 1208, authorizing the bringing in of additional parties on such terms as the court may prescribe, the court may, in its discretion, determine whether plaintiff shall be compelled to delay the trial to meet new matter set up by a third person, not a necessary party, for the first time at the moment of the trial; and it is not error to dismiss the third person from the suit.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. § 87; Dec. Dig. § 56.*]
    3. Bills and Notes (§ 489) — Actions—Issues, Proof, and Variance.
    The variance between the petition in an action on notes and the notes introduced in evidence, arising from the fact that the petition omits the matter of indorsement of payment of interest, and omits in the description of the notes the stipulation that past-due interest shall bear interest, and because the notes do not describe the land on which a vendor’s lien is asserted as it is described in the petition, is immaterial because not misleading.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. § 489 ;$ Pleading, Cent. Dig. § 1325.]
    4. Appeal and Error (§ 181) — Questions Re viewable — Questions Not Raised in Trial Court.
    An objection not made in the lower court cannot be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1141-1151, 1157, 1158, 1160; Dec. Dig. § 181.*]
    5. Appeal and Error (§ 743) — Questions Reviewable — Assignments of Error.
    An assignment of error complaining of the admission of evidence will not be considered where the court is not referred to as required by Courts of Civil Appeals, rule 31 (142 S. W. xiii) to the facts supporting the assignment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]
    6. Appeal and Error (§ 733) — Assignments of Error— Sufficiency.
    An assignment of error that the court erred in rendering judgment against defendant on the notes sued on, or either of them for any sum, and an assignment that the court erred in foreclosing a lien on the land described in the judgment, are too general, and will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3025-3027; Dec. Dig. § 733.*]
    7. Bills and Notes (§ 129) — Failure to Pay One of Several Notes at Maturity —Option of Payee — Notice.
    A payee of notes who may, at his option, declare all the notes due for nonpayment of the note first maturing, need not give the maker notice of his election to declare all the notes due before placing them in the hands of an attorney for collection and making a contract for attorney’s fees, and he may recover the same as provided in the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 283-292; Dec. Dig. § 129.*]
    Appeal from District Court, Brazoria County ; Wells Thompson, Judge.
    Action by John C. Garvin and another against A. H. Coleman, in which Elmer R. Stockwell filed an answer, which, on motion, was stricken out. From a judgment for plaintiffs, defendant Coleman and Elmer R. Stockwell appeal.
    Affirmed.
    Elmer P. Stockwell, of Angleton, for appellants. H. Grass, of Alvin, and Masterson & Rucks, of Angleton, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   REESE, J.

John C. Garvin and S. M. Garvin sued W. H. Coleman in the district court upon two promissory notes for $233.50 each and to foreclose the vendor’s lien on certain lands, for the purchase money of which, it is alleged, the notes were executed. A trial without a jury resulted in a judgment for plaintiffs against defendant for the amount due on the notes, together with attorney’s fees and foreclosure as prayed for, from which judgment both Coleman and Wm. R. Stockwell whose connection with the case will be later shown appeal.

The suit was instituted in November, 1911, to the February term of the court, which began February 19, 1912. On February 21st, the day the cause was called for trial, defendant Coleman filed an amended answer, setting up that he had sold the land to Wm. R. Stockwell, who had assumed payment of the notes, and making him a party defendant. This answer also alleged that plain tiffs had agreed to release Coleman from the notes. When the case was called for trial, Coleman moved the court for a continuance in order that he might have Stockwell brought in by service of process. Plaintiff objected to the delay. Evidence was heard on the motion for continuance, in which Coleman testified that plaintiffs had not agreed to release him from the notes. The court refused the application for continuance to get service on Stockwell. Stockwell thereupon, through the same attorney who represented Coleman, appealed and filed answer, alleging the purchase of the land from Coleman, and that he had assumed the payment of the notes upon condition that plaintiffs and Coleman furnish certain affidavits showing limitation title. The plaintiffs, through their counsel, then moved the court to strike out Stockwell’s answer, and dismiss him from the case, on the ground that their clients were absent from the court, and that, in order to enable them to meet with proof, the allegations of the answer a continuance would be necessary. This motion was sustained and Stock-well was dismissed, to which he excepted.

Stockwell was not a necessary party to the suit. Ufford v. Wells, 52 Tex. 612; Foster v. Powers, 64 Tex. 247; Cattle Co. v. Boone, 73 Tex. 548, 11 S. W. 544. Not having been foreclosed by the judgment, whatever equities he may have still remain in him. It was within the discretion of the court to determine whether, in the circumstances, plaintiffs should be compelled to delay a trial in order to. be able to meet the new matter set up by Stockwell for the first time at the moment of the trial, and the court did not err in dismissing him from the suit. Article 1208, R. S. It was not in any way necessary to the rights of either defendants that Stock-well be allowed to litigate in this action the matters set up by him. Pierce v. Moreman, 84 Tex. 596, 20 S. W. 821.

The notes sued on were not set out in full but by general description as follows: “That heretofore, to wit, on or about the 6th day of April, A. D. 1909, the said defendant made, executed, and delivered to plaintiffs his two promissory vendor’s lien notes for the sum of two hundred thirty-three and 50/ioo ($233.50) dollars each, and bearing date on the said 6th day of April, 1909, and due and payable to said John C. Garvin and S. M. Garvin on or before two and three years after date, respectively, with interest at the rate of 8 per cent, per annum after date, payable annually, and stipulating for the payment of an additional 10 per cent, on the amount of principal and interest due as attorney’s fees, if said notes are placed in the hands of an attorney for collection, or if collected by suit.” The notes introduced in evidence correspond to the description, except that they were payable to the order of J. O. Garvin and M. L. Garvin, and provided that all past-due interest should bear interest at 10 per cent., and they each bore an in-dorsement that the interest was paid “to April 6, 1910.” Objection was made to the introduction of the notes in evidence on the ground of variance (1) because the notes in the petition omit the matter of the indorsement of payment of interest; (2) because such description omits the stipulation that all past-due interest shall bear interest at 10 per cent, per annum; and (3) because'the notes do not describe the land upon which the vendor’s lien is asserted as it is described in the petition. The objections were overruled and the notes admitted in evidence, to which defendant Coleman excepted. We do not think the variance set out in the objection were such as to mislead the defendant. Rees v. Clark and cases cited, 39 S. W. 161. The other objection urged in the brief that the notes declared on were payable to 3.- C. Garvin and S. M. Garvin, while the notes introduced in evidence were payable to J. C. Garvin, and M. L. Garvin was not made in the lower court, and cannot be considered here.

By the fourth assignment of error appellant complains of the action of the court in admitting over his objection a certified copy of the deed from the Garvins to Coleman; the objection as stated in the assignment being that appellant had not been given three days’ notice of the filing of the same among the papers of the case. It is not shown by the statements from the record that any objection was made to the evidence, nor does it appear either from the assignment itself or the statement from the record that the ruling was excepted to. We are not referred to any bill of exceptions, and are not required to dig into the record for the facts supporting the assignment or propositions thereunder, which, as so plainly provided by rule 31 (142 S. W. xiii), shall be stated in the brief. For this reason the assignment will not be considered.

The fifth assignment complains that “the court erred in rendering judgment against defendant Coleman on said notes, or either of them for any sum whatever.” The sixth assignment is “the court erred in foreclosing a lien on the land described in the judgment.” Both of these assignments are too general and will not be considered. Mynders v. Ralston, 68 Tex. 499, 4 S. W. 854; Land Co. v. Chisholm, 71 Tex. 528, 9 S. W. 479; American Legion of Honor v. Rowell, 78 Tex. 677, 15 S. W. 217; Douglass v. Duncan, 66 Tex. 128, 18 S. W. 343.

We have examined the remaining assignments of error, and they may be disposed of without discussion. By the express terms of the notes failure to pay the first due at the option of the holder matured the second. It was not necessary for plaintiffs to give defendant notice of his election to declare the second note due, when default was made in payment of the first note, before placing same in the hands of an attorney for collection and making a contract for attorney’s fees and recovering the same, as provided in the notes. None of the said assignments and propositions thereunder presents grounds for reversal.

We find no reversible error, and the judgment is affirmed.

Affirmed.


author: RASBURT, J.

text:
    NUNN v. RABY.
    (Court of Civil Appeals of Texas. Dallas.
    May 24, 1913.
    Rehearing Denied June 14, 1913.)
    1. Sequestration (§ IS)—Levy of Writ of Sequestration-Sale by Defendant Giving Statutory Bond—Rights of Buyer.
    That defendant in’sequestration under Rev. Civ. St. 1911, §§ 7094-7118, authorizing writs of sequestration, gave the statutory replevin bond conditioned that he would not sell the property pending suit and sold the property pending the suit to a third person was no defense to plaintiff contesting the title with the third person in the statutory proceeding of the trial of the right of property.
    [Ed. Note.—For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. § 18.]
    2. Pleading (§ 69)—Admissions.
    The allegation in the petition in an action to recover personalty that defendant had converted the same to his own use and possession is not an admission that title was in defendant.
    [Ed. Note.—For other cases, see Pleading, Dec. Dig. § 69.]
    3. Appeal and Error (§ 719*)—Assignments of Error—Fundamental Error.
    An error apparent of record is fundamental and reviewable, though not assigned.
    [Ed. Note.—For . other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    4. Sequestration (§ 18)—Claims of Third Persons—Judgment.
    A judgment against a claimant of property not a party to a writ of sequestration levied on the property rendered on his failure to establish his claim should be for the value of the property claimed, with legal interest from the date of the bond and the statutory penalty by way of damages; and, though the judgment properly recites that plaintiff should recover title, it should not award possession since the third person may retain possession and pay the judgment or return the property and pay interest and damages.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. § 18.*]
    5. Appeal and Error (§ 1149) — Proceedings on Appeal — Correction op Erroneous Judgment.
    Where the error in a judgment was not called to the attention of the trial court and the error was in the entry of the judgment rather than in any proceedings had on the admission of testimony or the application of the rules of law, the court on appeal will correct the judgment and affirm it as corrected.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. § 1149.*]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by C. C. Raby against C. E. Welch, in which G. W. Nunn appeared as claimant to the property sequestered under a writ of sequestration issued at the instance of plaintiff. From a judgment for plaintiff, G. W. Nunn, claimant, appeals.
    Corrected and affirmed.
    Geo. O. Wallace and Gibson & Callaway, all of Dallas, for appellant. Morris & Pope, of Dallas, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURT, J.

The issues on this appeal grow out of the following facts: Appellee sued C. E. Welch in the county court of Dallas county at law November 4, 1911, to recover an automobile or its value, alleging ownership in himself and a conversion of the car by Welch. Simultaneously with the filing of suit upon application of appellee, a writ of sequestration was issued, by authority of which the sheriff of Dallas county seized the car. On November 13, 1911, the sheriff delivered it to Welch, who replevied same under authority of the sequestration statutes. On December 17, 1912, and while Raby v. Welch was pending, appellant, Nunn, purchased the car from Welch, and after the purchase, and on January 19, 1912, appellee caused an alias writ of sequestration to issue in the suit against Welch, by authority of which the sheriff took possession of said car from Nunn. On the same day Nunn claimed the car in compliance with the provisions of the statutes for the trial of the right of property. The case between appel-lee and Welch, growing out of the levy of the first writ of sequestration, was tried first and judgment entered April 13, 1912, decreeing title in appellee, foreclosing sequestration, lien, etc., and providing for personal judgment against Welch and his sureties if the automobile could not be found. The instant case which grew out of the issuance and levy of the alias writ of sequestration was tried October 14, 1912. Aside from proof of the facts which we have just related, the only testimony adduced on the trial was proof by appellee that he was the owner of the automobile and was the owner of the same when he sued Welch, from whom he bought same, paying therefor $500. Ap-pellee also testified, after qualifying in that respect, that the then cash market value of the car in Dallas was $500. At the conclusion of the testimony the court directed verdict for appellee, upon which judgment was entered, and from which this appeal was perfected. So far as the record in the instant case shows, no appeal was taken from the judgment in the suit between appellee and Welch involving the title to the same car.

Appellant, upon the record as stated, asserts that the court erred in directing a verdict for appellee for the reason that, when Welch replevied the car and acquired possession of same by that process and thereafter sold it to appellant, appellee had no further claim thereto, and that the sole remedy of appellee was a personal judgment against Welch and the sureties on his re-plevin bond. We think the proposition unsound. As we have said, the suit was one brought under title 122, R. S. 1911, known as our law of sequestration, which permits the issuance and levy of writs of sequestration in various kinds of suits, among others when a litigant sues for the title or possession of personal property. In such suits the defendant may, after sequestration, retain possession of the property by giving bond. Among other conditions in the bond to be given by the defendant is the provision that he will not “sell or dispose of the same” pending the suit. Article 7104, R. S. 1911. While the statute also provides a remedy upon the bond for the plaintiff in the event the defendant violates the obligation to hold the property pending determination of ownership, a discussion of that provision is not necessary to a disposition of appellant’s contention, since in our opinion such provision is only intended as a protection in case of violation of bond.

The precise question has been decided by this court, and hence the fact that Welch gave the,»' statutory replevin bond in sequestration furnishes no defense to appellee contesting the title to the property with appellant in a proceeding brought under the statutory proceeding of the trial of the right of property. Crawford v. Southern Rock Island Plow Co., 33 Tex. Civ. App. 510, 77 S. W. 280.

Two objections are urged to the judgment. One is that the issues tendered and the evidence adduced did not authorize an instructed verdict for appellee. We conclude there is no merit in this objection, since it is undisputed that the title to the car was in ap-pellee.

We are unable to find any contention other than the one which we have just discussed, to the contrary, unless it be the claim urged under the second assignment of error that the allegation by appellee in the suit against Welch that Welch had converted the automobile to his use and possession was an admission that the title was] in Welch. The latter contention is obviously untenable, since such a rule would be to create title in the wrongdoer in every attempt made to recover possession of property converted. The other objection to the judgment was not assigned as error in the court below, but is urged here as fundamental and is in substance that the judgment is void because for a greater sum than $1,000, exclusive of interest, and to enter which the court was without jurisdiction.

This contention as to the facts is sustained by the record and may be considered, though not assigned, since the error is apparent of record, and hence fundamental.

We do not, however, think that the assignment raises a question of jurisdiction, since the court did have jurisdiction to try the issues tendered by the claimant, but rather the entry of an incorrect judgment upon a correct verdict. Neither the instruction of the court, the verdict of the jury, nor the statutory provisions with reference to the trial of the right of property, by authority of which the instant case was instituted, authorized the judgment as entered. The judgment to be entered against a claimant of property, not a party to any writ of sequestration levied upon personal property, who fails to establish his claim thereto, as in the instant ease, is for the value of the property claimed, with legal interest thereon from the date of the bond and the statutory penalty of 10 per cent, by way of damages. The judgment as entered recites that appellee shall “recover title and possession” of the automobile valued at $500' and awards writ of possession therefor. The judgment then proceeds to award judgment against appellant for $550, exclusive of interest. Aside from the question of jurisdiction, the judgment entered is erroneous, for, as indicated, the judgment should have been for the value of the automobile, $500, the statutory penalty of $50, and the interest of $21.90. The ear, however, should not have been awarded to appellee. The recitation that appellee recover title was correct, but possession and writ for its enforcement was error, since the appellant was entitled to retain possession of the car and pay the judgment, or, if he preferred, to return the car and pay interest and damages in satisfaction of the judgment.

However, in view of the fact that the error was not called to the attention of the court below for correction, and in view of the further fact that the error is in the entry of the judgment rather than in any proceeding had upon the admission of testimony, or the application of the rules of law, we are of opinion the case should not be reversed, but the judgment corrected.

Accordingly it is directed that the judgment of the court below be here corrected in accordance with the views expressed, and as corrected will be affirmed.

Affirmed.