text:
    RIO GRANDE & E. P. RY. CO. v. RAILROAD COMMISSION OF TEXAS.
    (No. 5464.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 13, 1915.
    On Motion for Rehearing, April 7, 1915.
    Rehearing Denied May 5, 1915.)
    1. Carriers <&wkey;15 — Regulations—Railroad Commission — Powers—Statutory Authority.
    The Railroad Commission has authority under Rev. St. 1911, arts. 6552, 6654, 6670-, authorizing the Commission to fix the pro rata part of charges received by each of connecting carriers and to establish joint rates, etc., to order a division of revenue accruing to connecting carriers under freight rates applicable for transportation of coal not belonging to either carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 25-27; Dec. Dig. <&wkey;15.]
    On Motion for Rehearing.
    2. Carriers &wkey;>13 — Regulations — Statutory Provisions.
    A carrier in an intrastate shipment is not entitled to the benefit of a joint rate on its own line for carrying its own property, in the absence of contract therefor, and an order of the Railroad Commission, which permits a carrier to charge freight rates for hauling its own property over its own road, and to participate in a division of a through rate for so doing, permits an unjust discrimination, in violation of Rev. St. 1911, arts. 6670, 6671.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ -21-24; Dec. Dig. &wkey;>13.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by the Rio Grande & Eagle Pass Railway Company against the Railroad Commission of Texas. Prom a judgment for defendant, plaintiff appeals.
    Reversed, and rendered for plaintiff on motion for rehearing.
    A. Winslow, of Laredo, and N. A. Rector, of Austin, for appellant. B. P. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for appellee.
   Statement of the Case.

RICE, J.

Appellant owns and operates a line o£ railway extending from Minera to Laredo, where it connects with the line of the Texas Mexican Railway running eastwards through Pescadito to Corpus Christi. Appellant’s line also connects at Laredo with the International & Great Northern Railway.

Prior to the transactions out of which this suit arose, the Railroad Commission had established a joint through rate of 80 cents per ton on coal from Minera to Pescadito, moving over the lines of appellant and the Texas Mexican Railway Company. The local rates on the same commodity established for the two roads were, for appellant, from Minera to Laredo, 65 cents per ton, and for the Texas Mexican, from Laredo to Pesca-dito, or the reverse, 55 cents per ton. During the month of February, 1913, eight car load shipments oif coal moved over the lines of said two railways from Minera to Pescadito under the 80 cent joint rate. It appears that said roads had no agreement as to the division of the through rate, and, when the shipments were made, appellant claimed its full local rate of 65 cents per ton to Laredo, and the Texas Mexican claimed that the 80 cents per ton should be divided equally between Che two roads. In order to determine the controversy, the Texas Mexican submitted the matter of the proper division of said rate to the Railroad Commission for its decision. The eight car load shipments were specifically described in its application. The matter having been considered by the Commission, it entered the following order relating thereto:

“It is juow, hereby, ordered by the Railroad Commission of Texas that the revenue accruing under the freight rates applicable for the transportation of the shipments in question, the same being car load shipments of soft coal from Min-era, Tex., to Pescadito, Tex., shall be divided, between the carriers participating in the haul thereof, in proportion to the local rates of said companies actually applying to and from the point of interchange, being Laredo, Tex., through . which the shipments actually moved; the local rates to be used as factors being as follows: Por the Rio Grande & Eagle Pass Railway Company, sixty-five (65) cents per ton; for the Texas Mexican Railway Company, fifty-five (55) cents per ton.”

Appellant being dissatisfied with this order, thereafter, on June 11, 1914, brought this suit to set it aside, alleging that it was unreasonable and unjust, and that the Commission was without authority to make the same. The petition sets out the existence, of the S0-cent joint rate mentioned above, and alleged its application to be to what appellant calls “commercial coal”; the making of the shipments -in question, as well as a great many other similar shipments; the existence of the controversy between the two carriers over the division of the rate; and the submission of the controversy to the Commission, and the making of the order above recited. The basis of all of the objections to the order seems to be, as stated in the -petition: (a) Because the Texas Mexican Railway Company, nor any other road in this state, is entitled to participate in any dividend pro rata for hauling its own property over its own line; (b) because the Texas Mexican Railway could absorb only 15 cents per ton of the ,80-cent through rate from Minera, a point on plaintiff’s line, to Pesca-dito, a point on its own line, thus leaving plaintiff its 65 cents per ton for all hauls from Miner'a to Laredo. It was alleged that the coal constituting the shipments in question was bought by the Texas Mexican Railway Company from a coal company at Min-era, and the same was consigned to the Texas Mexican at Pescadito. Closing, the petition contained a prayer to the effect that the specific order mentioned above be declared to be unreasonable and unjust and null and void, that it be construed, and that the enforcement thereof be enjoined.

Appellee filed its answer, containing a general demurrer, special exceptions, and specific reply to the allegations of the petition that the order was unreasonable or unjust, alleging that for a long time prior to the making thereof the appellant had voluntarily been transporting coal from Minera to Laredo, and delivering the same to the International & Great Northern Railroad Company under through rates, and had been voluntarily accepting a proportion of such through rates amounting to 40 cents per ton, and, in many instances, less than 40 cents per ton. The answer also alleged that the order was reasonable, just, and valid, and that appellant did not intend to comply therewith, unless compelled so to do, and prayed that the temporary injunction be dissolved, and that judgment be entered requiring appellant to comply with said order.

On trial before the court without a jury, judgment was rendered dissolving the temporary injunction, sustaining and construing the order, and adjudging costs against appellant, from which this appeal is taken.

The above statement of the case is substantially copied from the brief of appellee.

Opinion.

We think the Commission had ample authority to make the order in question (see article 6654, subds. 5 and 6; articles 6552 and 6670, Rev. Civ. Stats. 1911), and that said order must be construed as relating and limited in its effect to the specific eight shipments referred to therein.

The chief contention on the part of appellant is that said order was unreasonable and unjust, because it permitted the Texas Mexican Railway Company to participate in the division of said joint rate, on the ground that the coal belonged to said latter company, and was not commercial coal. In reply, appellee, in its brief, insists that “if the fact that the coal composing the shipments in question was company coal- could have the effect of rendering the order void or unreasonable or unjust to appellant, this fact not appearing from the face of the order itself, the burden was upon appellant to show, by clear and satisfactory evidence, that the coal was company coal. This not having been shown, the appellant has not made out its case upon this theory, and all the questions presented thereunder become purely moot, academic, and immaterial” — and states that there is nothing in the petition, nor in the answer, nor in the evidence, to identify this coal as company coal. This statement is not denied on the part of appellant; we therefore assume it to be true and hold that the question is not properly presented for our decision.

The order appearing otherwise to be reasonable and just, it becomes our duty to affirm the judgment of the court below, and it is so ordered.

Affirmed.

On Motion for Rehearing.

This case was on a former day of this" term affirmed by this court, its ruling being based on the statement contained in the brief of the Attorney General to the effect that the coal involved in the order of the Railroad Commission was not shown to be company coal; tjut a careful review of the record convinces us that we were mistaken in this regard, and that in fact the coal in question referred to in said order was company coal. This makes it necessary for us to pass upon the several questions raised and urged in the brief of appellant, as to whether or not the Railroad Commission, under the facts, had a right to make an order permitting participation by the Texas Mexican Railway Company in the division of a through rate on its own line in the carriage of its own property. Since the submission of this case, the exact question, so far as the principle here involved is concerned, has been passed upon by the San Antonio Court of Civil Appeals, in the case of Rio Grande & Eagle Pass Ry. Co. v. Texas & Mexican Railway Co., 173 S. W. 236, wherein that court held that in an intrastate shipment a railroad company is not entitled to the benefit of the through rate on its own line for carrying its own property in i the absence of a contract granting such right, i This’ ruling is approved by us. We therefore ■ conclude that appellant’s assignments assailing the validity of this order on the ground that it permitted tlje Texas Mexican Railway Company to charge freight rates for hauling its own property over its own road, and participated in a division of a through rate for so doing, thereby permitting an unjust discrimination in violation of articles 6670 and 6671, Rev. Civ. Stats. 1911, are well taken.

We also sustain those assignments assailing said order on the ground that it was unjust and unreasonable. I-Ience the motion for rehearing in this case should be granted, and the judgment heretofore rendered by us set aside, and the judgment of the court below reversed, and here rendered in" favor of appellant, and it is so ordered.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    GREEN et al. v. HOPPE.
    (No. 5462.)
    (Court of Civil Appeals of Texas. Austin.
    March 24, 1915.
    Rehearing Denied May 5, 1915.)
    1. Attachment <&wkey;267 — Abatement—Filing Amended Petition.
    Filing of an amended petition setting up a new and different cause of action from that in the original petition is ground for abatement of .the attachment procured on the original petition.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 948-952; Dec. Dig. &wkey;267.]
    2. Pleading &wkey;>248 — Petition — Amended Petition — Difeeeent Causes of Action.
    Where the original petition declares on an express contract, an amended petition declaring on an implied contract presents an essentially different cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 686, 687, 689-706, 708ya, 709; Dec. Dig. <&wkey;248.]
    3. Pleading <&wkey;252 — Petition — Amended Petition — Different Causes of Action.
    Where the original petition stated a cause of action on an account, an amended petition, containing, in one count a demand on the account, and in another count seeking recovery on a quantum meruit, did not change the right to recover on the first count and original petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 736-743; Dec. Dig. &wkey;252.]
    4. Principal and Surety i&wkey;173 — Payment of Debt by Surety — Implied Obligation.
    Where a surety pays the obligation at maturity on default of the principal debtor, there is an implied obligation on the part of the principal debtor to reimburse the surety for the money actually paid.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 497-499; Dec. Dig. &wkey;> 173.]
    5. Principal and Surety <&wkey;190 — Payment of Debt by Surety — Action against Principal — Pleading.
    A petition, in an action by a surety on a note who had paid it, against the principal for reimbursement, which states the facts of an implied obligation of the principal to reimburse the surety for the money paid, and which sets out the note and the facts as to its execution, delivery, and payment, and prays for recovery of the money paid on the note, states a cause of action, authorizing a recovery on the implied obligation to reimburse the surety for the money paid.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 549, 568-577; Dec. Dig. <&wkey;>190.]
    6. Appeal and Error <&wkey;742 — Questions Reviewable — Assignments op Error — Proposition.
    An assignment of error, complaining of the overruling of special exceptions to items of the account sued on, will not be considered where there is no proposition under the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742.]
    7. Pleading <&wkey;292 — Verification—Action on Account.
    Where plaintiff sued on a verified open account in compliance with Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 3712, and no item was contested by defendant, who did not deny any item under oath, as required by article 1906, defendant could make no objection to the items.
    [Ed. Note. — For other cases, see' Pleading, Cent. Dig. § 880; Dec. Dig. &wkey;s292.]
    8. Attachment <&wkey;126 — Validity — Affidavit — Requisites.
    The validity of an attachment does not depend on the truth of the facts stated in the affidavit therefor, but on the fact that they are so stated, and the matters set out in the affidavit cannot be put in issue to abate the attachment.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. § 207; Dec. Dig. <i&wkey;126.]
    9. Attachment <&wkey;331, 333 — Bond—Rights of Parties.
    A defendant, damaged by an attachment wrongfully sued out, is protected by the attachment bond, and plaintiff may recover against the sureties on the replevy bond executed by defendant.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1180-1185, 1193-1197; Dec. Dig. &wkey;331, 333.]
    10. Attachment &wkey;>9 — Right to Sue Out Attachment — Maturity of Debt.
    Under Vernon’s Sayles’ Ann. Civ. St. art. 243, providing that attachment may issue though plaintiff’s debt be not due, it is immaterial that the debt was not all due when an attachment was issued.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 31-33; Dec. Dig. <&wkey;9.]
    11. Appeal and Error <&wkey;216 — Instructions — Requests—Necessity.
    Error in the main charge, consisting of an omission only, is not reversible.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>216; Trial, Cent. Dig. § 627.]
    Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.
    Action by R. E. Hoppe against J. W. Green and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    W. A. Barlow, of Taylor, for appellants. Page & Jones, of Bastrop, for appellee.
   RICE, J.

Appellee was in the mercantile business at Smithville, and during the months of February, March, and April, 1914, sold to appellant Green certain goods, wares, and merchandise, amounting in the aggregate to the sum of $359.23; and on January 19, 1914, appellant Green borrowed from the First National Bank of Smithville the sum of $306, executing his note therefor, with appellee as surety, payable to the order of said bank within 60 days from date, bearing 10 per cent, interest, and providing for 10 per cent, attorney’s fees, if placed in the hands of an attorney for collection. The note was not paid at maturity, and appellee, as surety, paid same, amounting to $316. Appellant also having failed to pay said account, this suit was brought by appellee on the 3d of May thereafter to enforce collection thereof, as well as for said sum of money so paid on said note, alleging that the merchandise was bought at an agreed price, specified and set forth iri Exhibit A, attached to the petition, which was duly verified; and on the same day caused an attachment to be issued and levied upon 14 head of mules and horses, seven wagons and harness, the property of appellant, which was thereafter, on the 7th of May, duly replevied by him. On the 12th of said month, appellee filed his first amended original petition, setting up the sale of said merchandise by him to appellant, and seeking to recover in the first count for its value at an agreed price, and in the second on a quantum meruit, and also set up the execution of said note to the First National Bank of Smithville by appellant Green as principal and himself as surety, for the sum above mentioned, alleging that he, as surety, had been compelled to pay the same to the bank, wbo bad indorsed it to him, and prayed for recovery of the amount that he had so paid. Appellant replied by general demurrer, several special exceptions, and further answered by special denial of paragraphs 1 to 8, inclusive, of plaintiff’s petition, but admitted that he had executed the note described therein as principal, with appellee as surety thereon, and likewise admitted that he had purchased a number of the articles of goods, wares, and merchandise, set forth in Exhibit A, attached to plaintiff’s petition, but alleged, however, that he had no information sufficient to enable him to state whether such account was correct or not. He also sought to recover damages in reconvention for the alleged unlawful issuance and levy .of the writ of attachment upon his property. A jury trial resulted in a verdict and judgment in favor of appellee against appellant and the sureties on the replevy bond, with a foreclosure of the attachment lien on the property levied upon by virtue of said writ of attachment, and against appellant on his plea in recon-vention. Appellant moved to quash the writ of attachment on several grounds, chiefly for the reason that the amended petition set up a new and different cause of action from that stated in the original petition. The original petition sought to recover for goods, wares, and merchandise sold to appellant at an agreed price, as set forth in the exhibit attached to said petition, and likewise sought to recover for the money paid by appellee as surety on said note, alleging it to be money procured and furnished by him to appellant; while the first amended petition, so far as the account is concerned, not only sought to recover on an express contract, but also on a quantum meruit. With reference to the money so paid by appellee as surety, said amended petition set up all the facts with reference to the execution and delivery of said note by appellant, as principal and himself as surety, the payment of same by him and its indorsement to him, and prayed to recover the amount paid out by him thereon, and for general and special relief.

We understand the rule to be, as contended for by appellant, that if the amended petition in the instant case set up a new and separate cause of action from that set up in the original petition, this, in and of itself, would be sufficient ground to abate the attachment. See Boyd v. Beville, 91 Tex. 439, 44 S. W. 287; Phœnix Lumber Co. v. Houston, etc., Co., 94 Tex. 463, 61 S. W. 707; Townes’ Texas Pleading, p. 459.

We also understand the rule to be that if the original petition had declared on an express contract, and the amended petition had declared on an implied contract, they would present essentially different causes of action. See Booth v. Houston Packing Co., 105 S. W. 46; S. A. & A. P. R. Co. v. Bracht, 157 S. W. 269; Lynch v. Ortleib & Co., 87 Tex. 590, 30 S. W. 545; Phœnix Lumber Co. v. Houston, etc., Co., supra; Sayles’ Texas Pleading (1st [1906] Supp.) p. 53.

But do said pleadings come within this rule? We think not. As to the suit on the account, the same identical allegation is made in both, and recovery is asked in both for goods sold at a specified and agreed price. It is true that a second count was added, seeking to recover on a quantum meruit, but plaintiff had the right to add as many counts as he desired, and this did not change his right to recover on the first count, which was the same in each petition.

Appellant further contends,' however, that in the amended petition appellee sued to recover upon the note, whereas in the original petition he only sued to recover for money had and received, claiming that in the one he sued upon an express contract, while in the other his suit is based upon an implied contract. In the instant case appellee’s cause of action for the recovery of the money paid by him results from the implied obligation on the part of the principal to reimburse the surety for the money actually paid on his account. See Faires v. Cockerell et al., 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Holliman v. Rogers, 6 Tex. 91, holding that recovery under such circumstances could not be had by the surety upon the note.

We think that both petitions declare upon the same cause of action, that is, upon an implied obligation upon the part of appellant to reimburse appellee for the money paid on said note. It is true that appellee does set out the note and all the facts regarding its execution, delivery and payment by him, and prays for recovery of the money paid by him thereon; still, under the authority of Boyd v. Beville, supra, we think this was a suit by him for indemnity, rather than upon the note. As said before, the petition may be regarded both as a suit upon the note and the implied obligation of appellant to reimburse appellee for the money paid thereon, and we may concede that appellee believed he was suing upon the note, yet he stated facts sufficient to authorize a recovery upon the implied obligation of appellant to reimburse him for the money paid; and, having prayed for whatever relief he might be entitled to thereunder, the court was justified in regarding iti as a suit upon the impied contract, rather than upon the note. Hence we overrule appellant’s contention set out under the first, second, third, and fourth assignments of error, to the effect that the two petitions set up separate and different causes of action.

The fifth assignment complains that the verdict is not supported by the evidence, but is in conflict therewith, in that there is no testimony showing, or tending to show, how much plaintiff paid on said note as surety. We differ with appellant in this contention. We think the evidence satisfactorily shows that the plaintiff paid off the note. This must mean that he paid the amount due thereon, which is alleged in the petition to be $316 at the time of payment. Appellant addressed a special exception to ■certain items of the account sued on, for the reason that it failed to show the amount or number of such items. In the first place, there is no proposition under this assignment, for which reason we might decline to consider it; but, waiving this, it has been held that an account sotting forth tiie items with less particularity than this was sufficient. See Hays v. Samuels, 55 Tex. 561; Cahn v. Salinas, 2 Willson Civ. Cas. Ct. App., § 104; Adams v. Gray & Dudley Hardware Co., 153 S. W. 650. Besides this, plaintiff brought suit on a verified, open account in compliance with the statute' (article 3712, Vernon’s Sayles’ Civ. Stats.), no item of which was contested by appellant, nor did he deny any item thereof under oath, as required by article 1906 of said statutes, and, without so doing, he can make no objection to the items thereof. This assignment is therefore overruled.

It is urged by the seventh assignment that the court erred in directing the jury to return a verdict to foreclose the attachment lien in favor of plaintiff against the sureties on the replevy bond, because if .the facts set forth in the affidavits for attachment were untrue, such proceedings would fail, and plaintiff would not be entitled to the foreclosure of such attachment lien, nor to a judgment against the sureties on such bond, it appearing from the uncontrovertod testimony that the affidavit was not true in this, that a part of the debt sued oh was not due at the time of its issuance, and for the further reason that the facts alleged therein that defendant was about to remove his property out of Bastrop county with intent to defraud his creditors was, under the evidence, a question for the jury to pass upon. The validity of an attachment does not depend upon the truth of the facts stated in the affidavit, but upon the fact that they are so stated; therefore the court correctly instructed the jury to foreclose the attachment lien and to return a verdict in favor of plaintiff against the sureties on the replevy bond, and if appellant be damaged thereby he is protected by the attachment bond. See Dwyer v. Testard, 65 Tex. 432; Dunnenbaum v. Schram, 59 Tex. 2S6; Bateman v. Ramsey, 74 Tex. 589, 12 S. W. 235. The truth of the matters set out in the affidavit cannot be put in issue for the purpose of abating the writ of attachment. See Cloud v. Smith, 1 Tex. 611; Wright v. Ragland, 18 Tex. 289; Osborn v. Schiffer, 37 Tex. 434; Dunnenbaum v. Schram, supra; Hillebrand v. McMahan, 59 Tex. 450; Dewy v. Eischl, 65 Tex. 311; Dwyer v. Testard, supra; Hart v. Jopling, 146 S. W! 1075.

It is immaterial that the debt was not all due when the attachment was issued, because under the statute plaintiff is entitled to an attachment whether the debt is due or not. See article 243, Vernon’s Sayles’ Civ. Stats. So that the court did not err in refusing to give appellant’s special charge No. 2, to the effect that if the evidence showed that part of the debt was not due at the time the writ of attachment was sued out and levied, they would find such attachment was wrongfully, illegally, and unjustly sued out, and therefore defendant would be entitled to a verdict against plaintiff for actual damages.

Appellant excepted to the main charge of the court on the ground that in submitting his plea in reconvention, said charge only authorized a recovery in his favor provided the jury should believe that, at the time of the issuance of the attachment, he was about to remove his property out of Bastrop county, where the suit was brought, with intent to defraud his creditors; and he sought to cure the error in the charge of the court by requesting a special charge which, in effect, authorized a recovery on his part if the jury should believe either that the debt was not due at the time the attachment was issued, or that the writ was sued out for the purpose of injuring and harrassing the defendant, or that he was not about to remove his property out of Bastrop county, where the suit was brought, with intent to defraud his creditors. The error in the main charge, complained of under the ninth assignment, was one of omission only, for which reason no reversible error is shown. The tenth assignment, complaining of the court’s refusal to give appellant’s special charge, is likewise overruled, because it permitted a recovery in the event the jury should believe that, at the time the attachment was issued, the debt was not due, as the law permits an attachment to be issued before the debt is due; the first allegation furnishes no basis for recovery, even if shown to be untrue at the time of the issuance of the writ.

Finding no reversible error in the proceedings of the trial court, its judgment is in all respects affirmed.

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

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


author: HODGES, J.

text:
    AGRICULTURAL INS. CO. v. COLLINS.
    (No. 1460.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 22, 1915.).
    Insurance &wkey;>163 — Fire Policy— Construction.
    A fire policy on a stock of bank furniture and fixtures, which contained a provision that, unless liability was specifically assumed, the insurer should not be liable for the loss of dies, implements, signs, store or office furniture, covers neither electrotype plates, used to reproduce pictures of the furniture or fixtures, nor a traveling salesman’s trunk.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 339-346; Dec. Dig. <&wkey;>163.]

      Error from Grayson County Court; J. 0. Adamson, Judge.
    Action by W. D. Collins against the Agricultural Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    Thompson, Knight, Baker & Harris, and Will C. Thompson, all of Dallas, for plaintiff in error. J. S. Kone, of Denison, for defendant in error.
   HODGES, J.

The defendant in error sued the plaintiff in error and recovered a judgment for the sum of §357.30 upon an insurance policy. The plaintiff in error contends that both the pleadings and the evidence were insufficient to support a judgment against it for any. sum.

It appears from the original petition, upon which the case was tried, that the articles damaged by fire, and for which a recovery was sought, consisted of a salesman’s sample trunk, one window curtain, and a large number of electrotype plates, used in reproducing pictures from photographs of various articles of bank furniture and fixtures. The plaintiff in error, as we gather from his pleadings and the evidence, was engaged in the business of selling bank furniture and fixtures, and had on hand, at the time the policy of insurance was written, a stock amounting to several thousand dollars. The policy upon which this suit was brought is attached as an exhibit to. the petition, and insures for a sum not exceeding $1,200 “the stock of bank furniture and fixtures, new and secondhand, vaults, doors, and iron burglar proof steel safes of every description (except steel safes), his own, or held by him in trust or a commission, or sold but not delivered, and for which the assured may be liable,” all while contained in the two-storied brick metal roof building occupied for mercantile purposes and lodge rooms situated and known as Nos. 511 and 513, West Main street, Deni-son, Tex.. The policy contained this further provision:

“This company shall not be liable for loss to accounts — nor unless liability is specifically assumed hereon for loss of — dies, implements, pictures, signs, store or office furniture or fixtures, etc.”

The principal question presented on this appeal is: Do the terms of the policy include the articles for which a recovery was sought and obtained? We have reached the conclusion that they do not. The articles destroyed were not bank furniture nor bank fixtures, but were mainly metal plates used in printing advertising matter exhibited in the course of trade by the defendant in error. They formed no part of his stock of merchandise to be sold. Those metal plates were nd more a part of the stock in trade than were the pictures or photographs which were exhibited, or which may have been in the office and held for exhibition. Neither was the trunk used by the salesman in his travels within the terms of the policy.

The judgment will therefore be reversed, and judgment here rendered for the plaintiff in error.
      &wkey;?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    TIMES HERALD PRINTING CO. v. ST. PAUL SANITARIUM et al.
    (No. 1469.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 22, 1915.)
    Interpleader <&wkey;23 — Bill—Sufficiency.
    A petition setting up that plaintiff had in its possession a fund as prizes, in which it claimed no interest, which belonged to two of the defendants, and which was adversely claimed by the three, is a good bill of interpleader.
    [Ed. Note. — For other cases, see Interpleader, Cent. Dig. §§ 47, 51; Dec. Dig. <S&wkey;23.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Petition of interpleader by the Times Herald Printing Company against the St. Paul Sanitarium and others. Prom a judgment sustaining a demurrer, plaintiff appeals.
    Reversed and remanded.
    Wood & Wood, of Dallas, for appellant. Wm. P. Ellison, Pierson & Pierson, Etheridge, McCormick & Bromberg, W. A. Kemp, Thomas & Rhea, Ellis P. House and Lawther, Pope & Mays, all of Dallas, for appellees.
   LEVY, J.

Appellant prosecutes the appeal from the judgment sustaining a demurrer to the petition. The petition is in the nature of an interpleader, and states, in substance, that plaintiff has in its possession a fund of $1,200 as prizes, which it tenders into court, and to which it claims no interest, and which belongs to two of the defendants, and which is adversely claimed by the three defendants, and that appellant is willing to pay the fund to whomsoever the court may- adjudge is entitled to it. Without stating or discussing the question further, it is concluded that, as against a demurrer, the bill of interpleader is sufficient as such. 5 Pomeroy, 'Eq. Jur. § 43 et seq.; Bolin v. Railway Co., 61 S. W. 444; Rochelle v. Express Co., 56 Tex. Civ. App. 142, 120 S. W. 543. Any question of the regularity of the canvass’ of the votes for the prizes, or validity or finality of the award, and the like, are matters that are properly determinable on the answers of the defendants as between themselves.

The judgment is reversed, and the cause remanded.
      <i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    BROWN et al. v. FIRST NAT. BANK OF CORSICANA et al.
    (No. 7076.)
    (Court of Civil Appeals of Texas. Dallas.
    April 3, 1915.
    Rehearing Denied May 1, 1915.)
    1. Parties <&wkey;84 — Want of Parties — Non-joinder of Defendants — Demurrer.
    Only where the want of necessary defendants is apparent on the face of the petition can the objection be taken by general demurrer.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 134-142, 171; Dec. Dig. &wkey;84.]
    2. Pleading <&wkey;214 — General Demurrer — Admission.
    The allegations of a petition must be taken as true upon general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. <§r=>214.]
    3. Taxation <&wkey;611 — Suit to Enjoin Collection of Excessive Tax — Necessary Parties Defendants — State and County.
    In suit to enjoin collection of an unequal and excessive tax, the fact that parts of such tax belonged to the state and county did not render them necessary parties to the suit, since the collection of an assessment, illegal and void because excessive and unequal, may be enjoined in a suit for that purpose against those alone threatening the unlawful action.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. 611.]
    4. Taxation <&wkey;611 — Excessive Tax — Suit to Enjoin — Affirmative Relief.
    In an action by a number of banks and their stockholders to enjoin the collection of an excessive tax, where the pleadings alleged that their property was assessed at a proportionately greater part of its true value than that of other property owners, there was no support for an affirmative judgment in favor of one of the banks which had paid the excessive tax.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. &wkey; 611.]
    5. Taxation <&wkey;607 — Excessive Tax — Collection — Suit to Enjoin — Determination of Board of Equalization — Direct Attack.
    A suit to enjoin collection of an excessive tax on the ground that plaintiffs’ property had been assessed at a higher proportion of its true value than that of other property owners was not a collateral attack upon the action of the county commissioners’ court, sitting as a board of equalization, in fixing the value of plaintiffs’ property subject to taxation.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1230; Dec. Dig. &wkey;*607.]
    6. Taxation <&wkey;611 — Misjoinder of Plaintiffs.
    Where a number of banks and their stockholders joined in a suit to enjoin the collection of a tax on the ground that it had been assessed on their property at á valuation, proportionately to its true value, greater than other property owners, the fact that no one of the plaintiff banks, and no one of the plaintiff stockholders, had any interest in the property of another bank or another stockholder, did not render the joinder of parties plaintiff improper.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. &wkey; 611.]
    7. Taxation <&wkey;611 — Excessive Tax — Suit to Enjoin — Misjoinder of Plaintiffs.
    Where a number of banks and their stockholders joined in a suit to enjoin the collection of a tax on the ground that it had been assessed on their property at a valuation, proportionately to its true value, greater than other property owners, the fact that the complaint of one of the banks alleged in addition that defendants sought to tax it on stock of other corporations owned by it, while such other corporations paid taxes on such stock, did not render the joinder of the parties plaintiff improper.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. &wkey; 611.]
    8. Taxation <&wkey;608 — Excessive Tax — Collection — Suit to Enjoin — Good Faith of Assessors — Materiality.
    In suit to enjoin the collection of a tax, alleged to have been excessive and illegal because levied upon property of plaintiff banks and their stockholders at a valuation greater proportionately to real value than other property owners, the fact that the county commissioners’ court, sitting as a board of equalization, used its best judgment and acted in good faith, 'without specific intent to injure the plaintiffs, was immaterial.
    [Ed. Note. — -For other cases, see Taxation, Cent. Dig. §§ 1230-1241; Dec. Dig. &wkey;608.]
    9. Taxation &wkey;>611 — Excessive Tax — Collection — Suit to Enjoin — Instruction.
    In suit to enjoin collection of a tax alleged to have been levied on plaintiffs’ property at a valuation greater proportionately to its real value than other property owners, where the evidence showed that the property taxed had a market value in the county, the instruction that “equivalent to cash,” as used in a charge, meant that which in the usual and ordinary course of dealings was accepted as cash, and which was equal to and could be converted into cash, although not entirely correct, was not calculated to mislead the jury.
    [Ed. Note. — For other cases,, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. &wkey; 611.]
    10. Taxation <&wkey;386 — Banks — United States Bonds.
    In suit by plaintiff banks and stockholders to enjoin the collection of an excessive tax, plaintiff stockholders held not entitled to have deducted, in determining the value of their bank stock for taxation, the value of United States bonds owned by the banks, although such bonds cannot be taxed.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 637-647; Dec. Dig. <5&wkey;3S6.]
    11. Taxation <&wkey;386 — Banks — United States Bonds — Statute.
    Under Rev. St. art. 7521, par. 2, making it the duty of national banks to render for taxation all bonds and stocks owned by them, except United States bonds, etc., there is no right in the stockholders of such banks to have deducted from the assets of the banks, in determining the value of their shares for taxation, the value of United States bonds owned by the banks.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 637-647; Dec. Dig. &wkey;386.]
    12. Taxation &wkey;>611 — Banks—Assessment-Deduction from Assets of Bank of Debts and Circulation.
    In an. action by banks and their stockholders to enjoin the collection of a tax, alleged to be illegal because the property of the plaintiffs had been assessed at a greater proportion of its true value than that of other property owners, where the court instructed that the jury, in determining the value of the bank shares, should consider the amount and value of all the property and assets of the banks and all their liabilities, the refusal of requested charges that, in arriving at the value of the shares, they could not deduct the debts of the banks from their assets, nor could they deduct the value of the circulation of each bank, was improper.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dee. Dig. <@=> 611.]
    IS. Taxation <@=>386 — Banks — Assessment or Stock — Stock in Other Corporations.
    In determining the value of bank stock for taxation to the holders, shares of stock held by banks in industrial corporations should he considered.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 637-647; Dec. Dig. <@=>386.]
    Appeal from District Court, Navarro Coupty; H. B. Daviss, Judge.
    Action by the First National Bank of Corsicana and others against W. J. Brown and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    McClellan & Prince, R. S. Neblett, and J. H. Rice, all of Corsicana, for appellants. Richard Mays, of Corsicana, for appellees.
   TALBOT, J.

The appellees, First National Bank of Corsicana, and 9 other banks, state and national, located in Navarro county, Tex., and the stockholders in said banks, numbering about 181, brought this suit against the appellants, R. R. Owen, county judge of Navarro county, J. N. Edens, W. L. Mederis, J. R. Slay, and W. B. Payne, county commissioners of Navarro county, constituting 'the board of equalization of said county, and W. J. Brown, tax collector and tax assessor, respectively, of said county, to have declared illegal certain taxes assessed against them and to restrain the collection of said taxes. Ap-pellees alleged: That the officers of the banks, at the direction of the tax assessor, furnished him with a list of the stockholders, together with the capital, surplus, and profits of said banks, but that no value was placed iipon the shares of stock by such officials, that individual plaintiffs did not render their shares of stock for taxes, nor were they called upon to do so, nor were they given notice by the taxing authorities, as to their dealings with said stock, and that they did not authorize the rendition of said shares by the bank officials. That the board of equalization' adopted as the market value of said shares of stock the aggregate of the capital, surplus, and profits of said banks, divided by the number of shares of said banks, respectively, and fixed the taxable value of said shares at from 65 per cent, to 83 per cent, of its reasonable cash market value. That the tax assessor made no assessment against the banks, nor against the shareholders, and that, after the board of equalization fixed the tax value at 65 per cent, to 83 per cent, as aforesaid, it gave the shareholder no notice of such action. That all other property in Navarro county was equalized and assessed by the board on the basis of 35 per cent, of its reasonable cash market value. That it had become an established, general, and uniform custom, for a long period of time prior thereto, to assess property at less than its market value in Navarro county, and that, in pursuance thereof, the board assessed property, other than that owned by banks and stockholders therein, at an average of 35 cents on the $100 of valuation; whereas, they assessed bank stock and bank property at from 65 per cent, to 83 per cent, of such value. That said board during the time they were acting upon the property rights of plaintiffs with full knowledge of said existing custom, and in recognition of the same, and with the design and intention of observing it, listed and equalized real estate and personal property, other than that of national and state banks, at the sum of 35 per cent, on the $100 of its reasonable cash market value, and intentionally and pursuant to a definite system, and with the design of imposing an unequal burden of taxation on plaintiffs, said board wrongfully, illegally, and arbitrarily fixed and assessed the value of said bank stock of plaintiffs (appellees), and each of them, at from 65 per cent, to 83 per cent, on the $100 of its book value, and its book value being its reasonable cash market value and not more. That the action of said board in so fixing the value of other property at 35 per cent, of its reasonable cash market value, and fixing the value of the bank stock of plaintiffs at from 65 per cent, to 83 per cent, on the $100 of its reasonable cash market value, done in pursuance of said system and custom, and intentionally followed, as aforesaid, was an illegal and arbitrary discrimination against plaintiffs, constituted a legal fraud upon them, was not in fact! an equalization of the taxable value of their property with other property of the county, but was an intentionally illegal, systematic, and arbitrary assessment of plaintiffs’ property at about double the proportionate value at which said board fixed the value of other- property, as aforesaid, belonging to other persons in said county, and is violative of article 8, section 1, and article 1, section 19, of the Constitution of Texas, and section 1 of the fourteenth amendment to the Constitution of the United States.

The appellees further alleged that appel-lees rendered their property for taxation by furnishing lists of the stockholders to the tax assessor, together with the capital, surplus, and undivided profits of said banks, and that the tax assessor transmitted such rendition to the board of equalization; that the board of equalization raised them, and that this raising was without notice to the stockholders, and that in this respect the board of equalization acted illegally, arbitrarily, and contrary to law. Appellees admitted that they owed certain taxes, aggregating $2,326.-52, and offered to pay the same. It is also claimed that certain of the stockholders of the banks (appellees) appeared before the board of equalization and protested against the action of the tax assessor and the board of equalization, and that the action of the said board was taken over and against the protest of said banks (appellees). In this connection it is alleged that all of the banks (appellees) had notice of the action of the board of equalization, but that appellees stockholders did not have notice. The prayer of plaintiffs’ petition is, in substance, that an injunction be issued restraining the collection of the illegal tax; that appellants be restrained from making levy upon their property, from adding penalties to the amount of said tax, and from instituting suits to enforce the collection of said taxes, and from in any way attempting to collect said illegal taxes; that citation issue, and that the injunction on final hearing be made perpetual, and that the assessment by the tax assessor and the board of equalization be set aside and canceled, and that the tax collector be perpetually enjoined from collecting said taxes.

The defendants answered by general and special demurrers and plea of not guilty or general denial, and further answered that the commissioners’ court of Navarro county, sitting as a board of equalization, acted in accordance with law, after hearing evidence, fixed the valuation of appellees’ property, and entered an order to that effect, which remains final, and, further, that said commissioners’ court, acting as a board of equalization, with the sole purpose, desire, and intent to make the appellees’ property bear its equal proportion of taxation, and without intention to discriminate, used its best judgment, and acted upon the best information it could obtain, to make the value of appellees’ property equal and uniform with all other property in Navarro county subject to state and county taxes, and with no desire, intent, or purpose to place a greater burden upon it than upon other property. They prayed, also, that the temporary injunction be dissolved, and that they be permitted to proceed with the collection of said taxes.

The trial was had before a jury and submitted on special issues. It resulted in a vdrdict and judgment declaring the assessment illegal as against appellees stockholders and appellees banks, and finding that the banks owed an amount less than admitted by them to be just and correct, and perpetually enjoining appellants from the collection of said taxes, and from making levies, or threatened levies, and from adding penalties, from instituting suits, or in any way attempting to collect the taxes claimed to be illegal. Their motion for a new trial being overruled, the appellants excepted, and perfected an appeal to this court.

The first assignment of error complains of the overruling of appellants’ general demurrer to appellees’ petition. It is contended that this action of the court was error: (1) Because it appears from the petition that the county of Navarro owns the larger portion of the taxes involved, from the collection of which appellants are perpetually enjoined, and said county is not made a party to the suit; (2) because it appears from said petition that a large portion of said taxes belongs to the state of Texas, and said state is not made a party to the suit. Appellees, in reply to this assignment, assert that the non-joinder of Navarro county and the state of Texas as defendants herein could not be raised by a general demurrer. This assertion is correct, except, probably, in cases where the want of proper or necessary parties is apparent on the face of the petition, and if the state of Texas and county of Navarro were necessary parties to this suit, for the reason that a part of the taxes sought to be enjoined belonged to each, then the fact was apparent from the allegations of the petition and the law applicable thereto, and the non-joinder could, it would seem, be taken advantage of by general demurrer. Williams v. Bradbury, 9 Tex. 487; Shelby v. Burtis, 18 Tex. 645; Railroad Co. v. Le Gierse, 51 Tex. 189. However this may be, we think that neither the county of Navarro nor the state of Texas was a necessary part to this action.

The rule announced by the Constitution and laws of this state for the taxation of property is “equality and uniformity, and in order to secure uniform and equal taxation the property of all persons and corporations must be taxed in proportion to its value." The facts alleged in appellees’ petition show that the assessment and equalization of their property and that of other property owners in Navarro county was not made according to the same rule or standard of value, and the purpose of this suit was to enjoin the collection of that portion of said taxes, which they assert was illegal and void on account of the alleged excessive valuation of appellees’ property as compared with the assessed and equalized valuation of other taxable property, and the consequent discrimination against them. The allegations of appellees’ petition, as against the general demurrer, must be taken as true, and these allegations show that the appellants were attempting, in their official capacities, to deprive appellees of a right, secured to them by both the state and federal Constitutions. If that portion of the assessed taxes of which appellees] seek to be relieved is illegal and void for the reason asserted by appellees, then its collection could be enjoined, it occurs to us, in a suit for that purpose against those alone threatening such unlawful act, no matter in what capacity or upon what pretense they assumed to proceed. Porter v. Langley, 155 S. W. 1042. It would seem that, if the state or county is a necessary party to a suit of this character, the nonjoinder would be a fundamental error which the courts should take notice of without an objection being urged to the petition on that ground, and it is a significant fact that of the many such suits passed on by the appellate courts of this state in none has it been declared that the state or county was a proper or necessary party, except in the case of Texas Co. v. Daugherty, 160 S. W. 129, and such holding was later expressly withdrawn by the court as being unnecessary to the conclusion reached that the judgment of the trial court should be affirmed.

The fourth assignment of error complains of the court’s action in rendering judgment in favor of appellee First State Bank of Kerens, against the appellants, for the sum of $142.60, on the ground that the pleadings did not authorize such judgment. The judgment of the court has the following recital:

“As to the plaintiff First State Bank of Ker-ens, it appearing that it paid the full amount of taxes claimed against it by the defendants in the sum of $208.95, with the agreement and understanding that, if the plaintiffs won in the present suit, all taxes oyer and above the s.um lawfully held to be due, as a result of said litigation, would be returned and paid to said bank by the defendants: It is ordered and adjudged that the said plaintiff First State Bank of Ker-ens recover of and from the defendants the difference between the aforesaid sum of $65.35 and said amount paid, $208.95, as aforesaid, said difference being the sum of $142.60, and for which let execution issue.”

We have been unable to discover any pleading in the record to authorize this recovery. The petition does not allege that the appel-lee First State Bank of Kerens paid the $208.-95 mentioned in the judgment, or any part of it, under protest, and that it was seeking to recover the same. Nor did it allege that either of the appellants had agreed to return any part of said sum in the event it was held upon a trial of this case that said appel-lee had paid more taxes than was lawfully due by it. The suit is simply one in which all the appellees join to restrain the collection of taxes charged to be illegal, and ap-pellee First State Bank of Kerens did not seek by pleading in any form to recover a judgment against either of the appellants for taxes paid by it. The judgment in its favor for $142.60 is therefore without pleading to support it and must be set aside.

The fifth and sixth assignments of error are to the effect that the court erred in overruling appellants’ special exception to appellees’ petition, alleging that appellees’ suit is one to revise the action of the commissioners’ court of Navarro county, sitting as a board of equalization, relating to the assessment of property 'for taxes belonging to appellees, and that such action was final and not subject to review. The proposition is that, it appearing from appellees’ petition that the county commissioners’ court of Navarro county, sitting as a board of equalization, had passed upon the complaint of appellees, and had acted thereon, and had adjudicated and fixed the value of appellees’ property subject to taxation, the action of said court sitting as a board of equalization became final, and was not subject to a collateral attack in the district court. These assignments should not be sustained. The suit is not a collateral, but a direct, attack upon the action of the commissioners’ court, sitting as a board of equalization, with reference to the assessment of appellees’ property for taxation. The allegations of the petition showing the nature and object of the suit are fully set out in a former part of this opinion, and, as said by counsel for appel-lees, the alleged illegal acts of .the appellants and wrong thereby inflicted were charged to be the result of denying to appellees the equality of taxation secured by the Constitution of the state of Texas, which equality thereby required necessarily depended upon uniformity of assessment. Lively v. Railway Co., 102 Tex. 545, 120 S. W. 852. The allegations of their petition show the amount of taxes which would have been due by appellees, had their property been assessed on the same basis as other property in Navarro county, and that they had tendered their amount to the tax collector of said county, and that the same had been refused. The alleged excessive and illegal tax, which ap-pellees were called upon to pay by reason of the assessed value placed upon their property by the board of equalization, was set out in detail, and said excess thereof charged to be arbitrary, 'an illegal and fraudulent tax against them. It was further alleged that appellants were threatening to enforce the collection of the illegal tax thus imposed, by levy upon and sale of property belonging to appellees, together with the 10 per cent, penalty, etc., provided by law, and that appel-lees were without an adequate remedy at law to1 prevent the same. Under the allegations of the petition, appellees were entitled to invoke the equitable relief sought, and the special exception in question was properly overruled. Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71 (writ of error denied); Lively v. Railway Co., 102 Tex. 545, 120 S. W. 852; Langley v. Smith, 126 S. W. 660; Porter v. Langley, 155 S. W. 1042.

The next contention is that the court erred in overruling appellants’ special exception to appellees’ petition charging a misjoinder of parties plaintiff and causes of action, for that—

“each corporate plaintiff complains of the act of the assessor and the commissioners’ court affecting it, when neither one of the hanks plaintiffs has any interest in the property owned and cause of action asserted by its coplaintiff banks, and for that each stockholder in the respective banks is complaining of the act of the assessor and boai’d of equalization in fixing a liability against his property, and no stockholder has any interest in the property and cause of action owned and asserted by his coplaintiffs, the stockholders in the other banks.”

The question here raised has been expressly decided against the contention of appellants. In Morris v. Cummings, 91 Tex. 618, 45 S. W. 383, the Supreme Court of this state said:

“We think in a case like this, in which the collection of an illegal tax affecting numerous persons is sought to be enforced, any one or more of the parties sought to be subjected to the imposition may, in the same suit, invoke the interposition of a court of equity to restrain the collection”—citing Blessing v. Galveston, 42 Tex. 641; George v. Dean, 47 Tex. 73.

The right to maintain such a suit is recognized in many other cases, which need not be cited. The appellees in the case at bar were all similarly affected by the alleged act of the board of equalization in assessing and equalizing their property for taxation at- a much greater per cent, of its valuation than that at which other property was assessed, and the ruling in the cases cited is directly applicable. That the appellees First National Bank of Corsicana and its stockholders complained, in addition to the other matters set up, that appellants sought to tax it on stock it owns in other corporations, while such other corporations pay the taxes on such stock, etc., does not, we believe, alter the case. But so far as this appeal is concerned the ruling on the special exception in this particular was harmless; for while the special exception was overruled, yet in his charge to the jury, the court instructed them that they would not allow the First National Bank of Corsicana any credit or offset for stock owned and held by it in other corporations.

The ninth assignment is that the court erred in refusing to submit the following special issue to the jury requested by appellants:

“Did the commissioners’ court of Navarro county, sitting as a board of equalization, use its best judgment in fixing the rate and basis of value of all property in Navarro county subject to taxation for 1912, and in distributing the burden of taxation equally and uniformly on all property in said county, subject to taxation ?”

We think the issue here sought to be submitted was immaterial in determining the rights of the parties. That appellees’ rights cannot be made to turn upon whether the commissioners’ court, sitting as a board of equalization, exercised its best judgment in fixing the rate and basis of value of all property in Navarro county, subject to taxation in 1912, seems certain. The question is: Did the action of the court, so sitting, have the effect to deny to appellees the right of equal taxation—equal protection of the Constitution and laws of the state? If so, they were entitled to be relieved from such effect, whether it was the result of the exercise of good or bad judgment. In either event the action of the court resulted in an unjust and forbidden discrimination in the assessment of property for taxation, and it is no answer to the suit of appellees to say that, notwithstanding such result, the action of the board of equalization was based upon its best judgment, and therefore the aggrieved parties have no remedy.

Nor is the intention with which the acts of the appellants were done of any consequence. “It is not necessary that the officers in so discriminating should have intended specifically to injure the appellee.” Lively v. Railway Co., supra. So the contention of appellants to the effect that if the commissioners’ court, sitting as a board of equalization, acted honestly and in good faith in equalizing the values of property in Navarro county for the year 1912, their act was final, cannot be sustained, and all assignments of error under which such contention is made in any form must be overruled.

The court instructed the jury that the reasonable and fair market value of real estate, or of bank stock, or of any other property, is the price for which such commodity will sell upon the market for cash or its equivalent, when offered for sale in reasonable quantities, and that the term “equivalent,” as used in the charge, “means that which in the usual and ordinary course of dealing is accepted as cash and which is equal to and can be converted into cash.” This charge is made the basis of appellants’ sixteenth assignment of error, and the court’s definition of the word “equivalent” is said to be erroneous for several reasons. These reasons have been considered, and while we are inclined to the opinion that the charge is not entirely free from some of the criticism urged against it, still we think, especially in view of the fact that there was ample evidence to show that lands, bank stock, and persohal, property had a market value in Navarro county, the charge was not, if not entirely correct, calculated to mislead the jury, and hence furnishes no ground of itself for a reversal of the case.

The seventeenth assignment complains of the following charge of the court:

“You are instructed that to determine the reasonable and fair market value of real estate, if any, owned by plaintiff banks on January 1, 1912, you will keep in mind the definition heretofore given you in paragraph No. 2. And you are instructed that to determine the reasonable and fair market value of bank stock you will keep in mind said definition, and you will reckon and take into consideration the amount and value of all of the property and assets of the bank, and all its liabilities, on that date. And you may consider the age, experience, and management of the bank in connection therewith. And from the value of the stock, as thus ascertained, you will deduct the value of all real estate and all United States bonds owned by the bank, and the result thus ascertained will be the reasonable and fair market value of such bank stock.”

The objection to this charge is that it “instructs the jury to deduct the value of all United States bonds owned by the banks in determining the value of bank stock for taxation.” This objection is well taken. While it is well settled that United States bonds cannot be taxed, it is also well settled that stockholders of banks cannot have deducted, in determining the value of bank stock for taxation, the value of such bonds owned by the bank. Adair v. Robinson, 6 Tex. Civ. App. 275, 25 S. W. 734; Van Allen v. Assessors, 3 Wall. 573, 18 L. Ed. 229; Home Saving Bank v. Des Moines, 205 U. S. 516, 27 Sup. Ct. 571, 51 L. Ed. 901. In the case last cited the Supreme Court of the United States, speaking through Mr. Justice Moody, said:

“Although the states may not in any form levy a tax upon United States securities, they may tax, as the property of their owners, the shares of banks and other corporations whose assets consist in whole or in part of such securities, and in valuing the shares for the purposes of taxation it is not necessary to deduct the value of the national securities held by the corporation whose shares are taxed.”

Following this statement of the court is an elaborate discussion of the question, with a citation of many authorities, and it seems that anything we might add thereto would be superfluous.

The contention of appellees in reply to this assignment to the effect that the statutes of Texas provide that, in determining the taxable value of shares of bank stock, the value of United States’ bonds owned by the bank should be deducted, is not in our opinion correct. Paragraph 2 of article 7521 of the Revised Statutes makes it the duty of national banks to render for taxation all bonds and stock of every kind owned by the bank, except United States bonds, which are not taxable, together with all other personal property belonging or pertaining to the bank, except such as is specially exempted from taxation by the laws of the United States; but we find nothing anywhere in the statute to the effect that United States bonds shall be deducted in determining the value of shares of stock for taxation. Hence the decisions cited are not rendered inapplicable by statute, and control, we think, a decision of the question.

The court also erred, we think, in refusing to instruct the jury as requested by appellants, that in arriving at the value of the shares of stock held by appellees in the various • banks they could not deduct the debts of the bank from the property it owned. This charge was especially made necessary by reason of language used in the third paragraph of the court’s instructions to the jury. They were told 'in this paragraph of the charge, among other things, that in determining the value of the appellants’ bank stock they were “to take into consideration the amount and value of all the property and assets of the bank and all its liabilities.” The language in this charge authorizing the jury to take into consideration “all the property and assets of the bank and all its liahilities” was calculated to lead the jury to believe that in arriving at the value of appellants’ bank stock they should deduct the debts of the bank from the property it owned. The special charge refused would have prevented the jury from being thus misled and should have been given. For practically the same reason we think the requested charge of appellants, to the effect that the jury in arriving at the value of any bank stock involved herein could not deduct the value of the circulation of each bank, should have been given.

It is assigned that the verdict of the jury is contrary to the evidence, in that the evidence shows that the respective shares of stock of the several banks suing are worth, and had a market value in 1912, largely in excess of the value found by the jury. There is at least apparent foundation for this view of the evidence; but as the case will be reversed and remanded, and probably a different finding made on another trial, it becomes unnecessary to consider and pass upon the question.

Appellants present a number of other assignments of error. Some of them have been disposed of adversely to appellants by what has already been said, and those that have not been so disposed of do not disclose reversible error.

The appellees present a cross-assignment of error complaining of the sixth paragraph of the court’s charge to the jury. In that paragraph of the charge the jury was instructed that the shares of stock held by the First National Bank of Corsicana in several named industrial corporations should be reckoned by them in determining the reasonable and fair market value of the shares of stock of said bank. The proposition asserted is that the charge is erroneous-—

“for the reason that it operated to enforce liability for double taxation against appellees stockholders in the First National Bank of Cor-sicana, and is violative of section 1, article 8, of the Texas Constitution, and of section 1 of the fourteenth amendment to the Constitution of the United States.”

In support of this proposition the learned counsel for appellees makes a forcible argument; but we do not believe his position can be maintained. We think the shares of stock referred to are assets of the bank that should be considered in arriving at the market value of its shares of stock, and the court’s charge correct; but, in’ view of the fact that the case will be reversed and remanded for a new trial, and of this already lengthy opinion, we shall not now enter upon a discussion of the question and review of the authorities bearing upon the same. For the purposes of this appeal, and another trial in the lower court, it is sufficient for us to say at this time that the charge in question states the law upon the subject to which it relates correctly, and was appropriately given in this case.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      igswFor other cases see same topic and KEY-NUMBER in'all Key-Numbered Digests and Indexes

      <@=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. STERLING.
    (No. 1435.)
    (Court of Civil Appeals of Texas. Texarkana.
    April. 22, 1915.)
    Appeal and Error <&wkey;447 — Effect of Appeal.
    Where an unsuccessful defendant appealed from a judgment rendered against it, such appeal deprived the trial court of jurisdiction, and defendant could not thereafter secure in the trial court an injunction restraining collection on the theory that the judgment was procured by fraud.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2207; Dec. Dig. <&wkey;>447.]
    Appeal from District Court, Titus County; W. T. Armistead, Judge.
    Proceedings by the St. Louis Southwestern Railway Company of Texas against H. L. Sterling to have a judgment set aside. From an order of dismissal, the railroad company appeals.
    Affirmed.
    Glass, Estes, King & Burford, of Texarkana, for appellant. Randell & Randell, of Sherman, for appellee.
   LEVY, J.

By a proceeding in the nature of a motion for new trial the appellant sought to have a judgment in favor of ap-pellee against it, obtained' at a former term of court, set aside. In the alternative an injunction was asked restraining the collection of the judgment. It was alleged that the judgment was obtained through fraud and misconduct of the jury. The court sustained a demurrer and dismissed the proceedings. The appeal in the original suit pending at the time deprived the trial court of jurisdiction and suspended the right of appellant to any proceeding of the kind in question, and the court did not err in dismissing the same.

The order of dismissal is affirmed.


text:
    LINXWILER v. LINXWILER et al.
    (No. 1459.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 29, 1915.)
    1. Divorce i&wkey;151 — New Trial — Power of Court.
    The trial court may during term time set aside a decree of divorce and grant a new trial.
    [Ed. Note — For other cases, see Divorce, Cent. Dig. §§ 509-513; Dec. Dig. <&wkey;151.]
    2. Appeal and Error &wkey;>78 — Decisions Appealable.
    An order granting a motion for new trial during the term at which a divorce was granted is not a final judgment from which ,an appeal can lie taken directly to the Court of Appeals.
    [Ed. Note — For other cases, see Appeal and Í£rolVCen¿- Dfc- §§ 426> 434, 464-477, 480. 481; Dec. Dig. <§=»78.] ■
    Appeal from District Court, Dallas County ; J. C. Roberts, Judge.
    Charles E. Linxwiler procured a divorce. Thereafter the defendant, his wife, was granted a new trial, and Audrey L. Linxwiler appeared and filed a plea in intervention, asserting that on the day of the decree she married plaintiff. From an order denying her plea, Audrey L. Linxwiler appeals.
    Appeal dismissed.
    M. M. Parks and W. H. Hall, both of Dallas, for appellant. Ross M. Scott and Ellis P. House, both of Dallas, for appellee.
   LEVY, J.

Charles E. Linxwiler sued his wife for divorce, and a decree was rendered in his favor. The defendant in the court below waived citation, but did not make answer. At the same term of court at which the decree was rendered the court allowed and entertained the second motion of the defendant wife for a new trial, and set the decree of divorce aside, and granted a new trial of the cause. The motion set up, among other things, that the waiver of service was signed by her “under duress and through fear.” Appellant by what is termed a “plea in intervention” appeared and contested the granting of a new trial, averring that on the day of the decree she married the plaintiff.

The plaintff also filed answer to the motion. The appeal was taken by the intervener, the third person, to revise the judgment of the court setting aside the decree of divorce and granting a rehearing of the cause. The jurisdiction of the district court to revise or set aside its own judgment continues during the term. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 483. And the granting of a motion for new trial during the term at which the decree was entered, as here, is not that character of final judgment which authorizes an appeal direct therefrom to this court. Sweeney v. Jarvis, 6 Tex. 36; Hughes v. Maddox, 6 Tex. 90; Hope v. Long, 122 S. W. 40; Taylor Co. v. Johnson, 147 S. W. 605. Therefore this court is without jurisdiction to entertain the axipeal, and it must be dismissed, without decision of any question in the case.
      &wkey;?For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes