author: RICE, J.

text:
    SOUTH TEXAS LUMBER CO. et al. v. BURLESON et al.
    (No. 5513.)
    (Court of Civil Appeals of Texas. Austin.
    May 26, 1915.)
    1. Execution <&wkey;222 — Sale—Notice—Sufficiency.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3757, requiring written notice of a sale to be given to the defendants in execution, the ;posting in the United States mail of such notice properly addressed and stamped is sufficient, whether the notice is received or not.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 629-633; Dec. Dig. &wkey;222.]
    2. Execution <&wkey;250 — Sales—Vacation—Inadequacy of Price.
    Diere inadequacy of price is not sufficient ground for setting aside a sheriffs sale otherwise valid.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 703-707, 789; Dec. Dig. &wkey;250.]
    3. Execution &wkey;>275 — Sales—Effect of IRREGULARITY.
    Where judgment, execution, and sheriffs sale are shown, mere irregularity in issuance or return of execution does not affect the title of the purchaser.
    [Ed. 'Note. — For other cases, see Execution, Cent. Dig. §§ 16, 148, 345, 791-796; Dec. Dig. <&wkey;>275.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Suit by the South Texas Lumber Company and others against George W. Burleson and others to set aside a sheriff’s deed. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Boyd & Bell, of Fairfield, for appellants. R. L. Williford, of Fairfield, W. W. Ballew, of Corsicana, and O. M. Wroe, of Fairfield, for appellees.
   RICE, J.

On the 2d of September, 1913, the South Texas Lumber Company recovered a judgment in the district court of said county against J. M. Nance and J. C. Willing-ham, for the sum of $1,940, with interest and costs, with foreclosure of a vendor’s lien on 48 acres of land out of the Brewer league in said county. On the 13th of October thereafter, it caused an order of sale to issue on said judgment, which, was placed in the hands of Geo. W. Burleson, sheriff of said county, with instructions to sell said land, which he thereafter, on the 2d of December, 1913, did at sheriff’s sale to T. J; Hall for the sum of $250 cash, executing to him a deed therefor, and this suit is brought by appellant against the sheriff and Hall to set aside said sale and cancel said deed on the ground of inadequacy of price, alleging that no written notice had been given to the owners of said land as required by law; that the sale was made in the forenoon of said day, whereas it was the uniform custom to make such sales in said county in the afternoon; that there was collusion between the sheriff and said purchaser; that said sheriff was notified that the attorney of appellant would be present at the sale, but, owing to the fact that it was an inclement and rainy day, he did not reach the county seat until 1 o’clock p. m. of said day; that if he had been present he would have bid, if necessary, the amount of appellant’s judgment; that said land was reasonably worth $1,600; that Nance and Willingham were wholly insolvent, and said land was the only security that appellant had for its debt; that both said sheriff and the purchaser knew that said land was reasonably worth $1,600; that unless said sale is set aside and canceled appellant will lose its debt. Nance and Willingham filed their plea of intervention, setting up practically the same facts alleged by appellant, but specially denying the service of any notice of sale in any manner, and praying that said sale be set aside. Burleson answered by general demurrer and special exceptions, denied specially each allegation of the petition except as to the delivery of the order of sale and deed to Hall, which was admitted, and specially alleged that he mailed notices of such sale, duly stamped, to Nance and Willingham, addressed to their respective post offices, and praying to be discharged with his costs. Hall filed his answer, which consisted of general and special demurrers, denied each allegation of the petition, pleaded estoppel on account of plaintiff’s negligence, and prayed that he be quieted in his title to said land. The case was tried before the court without a jury, resulting in a judgment against appellant and interveners and in favor of Bur-leson and Hall, from which this appeal is prosecuted by appellants, urging that the judgment rendered is contrary to the law and the evidence.

The facts show the regularity of the judgment and order of sale; that proper notice was duly published in the Fairfield Recorder, a weekly newspaper, for the timé required before the sale, which took place at the courthouse door between the hours of 10 a. m. and 4 p. m.; that Hall was the highest cash bidder, paying $250 for said land, and received a sheriff’s deed therefor; that a copy of the notice of sale was duly mailed by the sheriff, properly stamped, to Nance and Wil-lingham. While there was some evidence that land sales had frequently been made in said county in the afternoon of the sales day, yet the sheriff, Burleson himself, and two ex-sheriffs of said county, testified that there was no such uniform custom, and Burleson testified that he had been in the habit of selling at any convenient time during the day, and that on the particular day in question four other land sales were made by him at the same time. It was shown that the sale took place between 11 and 12 o’clock a. m. There was an entire want of evidence showing, or tending to show, any collusion between the sheriff and the purchaser. On the contrary, the land seems to have been sold at a time when some 10 or 12 persons were present, who had an opportunity of bidding therefor. There was evidence showing the value of said land to be from $800 to $1,500. While the sheriff knew that Judge Boyd represented the plaintiffs in execution, and had been told that he expected to attend said sale, yet he had not been requested to wait until his arrival, nor had he promised to do so. While the day was shown to be rainy and inclement, still, another attorney living at Teague, the place where appellants’ attorney resided, was present in the forenoon when the other sales took place in which he was interested.

It is insisted that defendants in execution did not receive written notice of said sale, as required by article S757 of Vernon’s Sayles’ Oiv. Stats. It has been held, however, that the posting in the United States mail of the properly addressed and stamped notice is sufficient, whether the notice is received or not. That course having been pursued in this case, the law is complied with. See Rogers v. Moore, 100 Tex. 220, 97 S. W. 685; Id., 94 S. W. 113. Mere inadequacy of price itself is not sufficient grounds for setting aside a sheriff’s sale otherwise valid. See Allen v'. Pierson, 60 Tex. 604, and cases there cited. Nor is the title of the purchaser under execution affected by mere irregularity in issuance or return of execution. Where judgment, execution, and sheriff’s sale are shown, it is immaterial as to such irregularities. See Riddle v. Bush, 27 Tex. 676; Crabtree v. Whitesell, 65 Tex. 113; Cavanaugh v. Peterson, 47 Tex. 205; Pearson v. Flanagan, 52 Tex. 280; Morris v. Hastings, 70 Tex. 28, 7 S. W. 649, 8 Am. St. Rep. 570; Holmes v. Buckner, 67 Tex. 111, 2 S. W. 452; Bank v. Beaumont Land Co., 128 S. W. 436.

After a careful investigation of the entire record, we find no reversible error in the proceedings of the trial court, and therefore its judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    HORNE v. STOCKTON.
    (No. 5496.)
    (Court of Civil Appeals of Texas. Austin.
    May 26, 1915.)
    1. Appeal and Error <&wkey;1046 — Record on Apfeai^-Deeects — Documents.
    Where the prevailing party in a lawsuit has taken away a receipt alleged to have been forged, which was offered in evidence at the trial, and failed to return it as ordered by the court, thereby depriving appellant of a correct statement of facts on appeal, and of his right to have the original receipt submitted to the appellate court for inspection, the case will be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. ©=>1046.]
    2. New Trial <&wkey;99 — Grounds—Surprise—* Cumulative Evidence.
    In a suit upon a note, wherein defendant introduced a receipt showing a certain payment which plaintiff alleged was a forgery, it was no objection to the granting of a new trial on the ground of surprise that testimony as to such receipt would be cumulative; the rule as to cumulative evidence not applying where a party has had no fair opportunity to procure evidence on an issue raised by his adversary for the first time during the trial by the introduction of evidence which could not be anticipated.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 166; Dec. Dig. ©=99.]
    3. New Trial <&wkey;102 — Grounds — Newly Discovered Evidence — Knowledge or Materiality.
    A new trial will be granted on newly discovered evidence, although the moving party knew at the time of the trial that he could prove the facts set out in his motion by the witnesses named, where the materiality of such testimony was not known to him until the trial was in progress.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 168; Dee. Dig. &wkey;102.]
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    Action by A. L. Home against W. P. Stockton on a note. From a judgment allowing defendant certain credits, and from a denial of a new trial, plaintiff appeals.
    Reversed and remanded.
    A. McFarland and Matthews & Browning, all of Lampasas, for appellant.
   Findings of Fact.

JENKINS, J.

Appellant brought this suit against appellee to recover on a note, upon which was credited $100, January 20, 1912. Appellee answered that he had paid an additional $100 on the note on April 20, 1913. Upon the trial appellee produced what purported to he a receipt from appellant for $100, dated April 20, 1913.' This receipt was written upon a billhead of appellant, who is, and for some years has been, a merchant in the town of Lometa, Lampasas county. The billhead is as follows:

“Lometa, Texas-, 191 — .
“M --
“In account with
“A. L. Home
“Dry Goods and Groceries
“Agents for M. Born & Go. Tailors.”

Appellee testified that he borrowed this $100 from Hugh Nelson on the day that he paid the same to appellant. April 20th was Sunday, and appellee testified that he paid appellant the $100 on Saturday, April 19, 1913. Hugh Nelson testified that he loaned appellee $100 on that day. Jim Ware testified that appellee borrowed $100 from Hugh Nelson about April 19, 1913, and that he went with appellee to Horne’s store, hut did not go in; that appellee went in and in a few minutes afterwards came out; that witness asked him if he had paid Home, and he replied, “Yes,” and exhibited a piece of paper, which the witness did not look at.

Appellant testified that appellee did not pay him $100 on said note, or any other {¡.mount, except the $100 credited on the note January 20, 1912; that the receipt offered in evidence was a forgery,, in that the figure 1 therein had been changed to 4, and the figure 2 to 3; that the figures 1 and 3 written in said receipt were written with paler ink than the other figures, and were not in his handwriting. Appellant further testified that the billhead upon which said receipt was written was not used by him after January, 1912; that at that time he ceased, to be agent for M. Bom & Go., Tailors; and that he had none of said billheads in his store or place of business during the year 1913.

There was a verdict and judgment, allowing appellee credit for the additional $100 which he claimed to have paid on said note. Appellant filed a motion for new trial on account of the newly discovered evidence of Roy Davis, deputy county clerk of Lampasas county, Will Longfield, J. T. MeOarson, cashier of the Lometa State Bank, Alice Hester, and Gus Rombo. Appellant alleged that he expected to prove by said Davis that appellee came into the county clerk’s office shortly after the suit herein was filed, and asked to see a mortgage which he had given to A. R. Roberts for $200, stating as a reason why he wanted to see said mortgage that he had paid appellant $100 which was not credited on the note, and that he had borrowed the money with which said payment was made from said Roberts; that the payment was made to appellant in the presence of witnesses, hut that he took no receipt for the same; that said Davis showed to appellee the mortgage which he had given to Roberts for $200; and that the same was dated December 30, 1912. That he expected to prove by Will Longfield that about April 19, 1913, appellee had in his possession $100 which he won from Hugh Nelson, but that witness knew that he did not pay the same to Horne. That appellant expected to prove by said MeOarson that he was cashier of the Lometa State Bank, and that appellant had been in the habit of making daily deposits in said bank when his sales amounted to enough to justify a deposit; that on April, 19, 1913, appellant made no deposit in said bank ;• and that on April 21st he deposited $83.50. That he expected to prove by Alice Hester and Gus Rombo that they were clerks in-his store, and that on January 1, 1912, and prior thereto, appellant had printed letter heads and billheads upon which was printed, “Agents for M. Bom & Co., Tailors,” but that he discontinued these words on his letter heads and billheads at that time, and had never used any letter heads or billheads with the said words on them since that time, and that there were no such letter heads or billheads in the store of appellant on or about April 20, 1913; that on February 12, 1913,. appellant instituted n different system of receipts, by which when money was paid to him he would give a receipt, using a carbon, and retain a duplicate in a bound receipt book; that Alice Hester was bookkeeper for appellant.

Appellant filed with his motion for new trial affidavits of all of the parties mentioned therein, except Will Longfield, which affidavits sustained the allegations in plaintiff’s motion for new trial. Appellant filed the affidavit of H. G. Townsend, to the effect that the witness Longfield stated to him, in substance as set out in said motion for rehearing, and that he did not file the affidavit of Longfield because he was a particular friend of appellee, and could not be approached to make such affidavit, but that he thought it probable if Longfield was put upon the stand he would tell the truth about the matter. It was alleged in said motion that all of said witnesses resided in Lampasas county, and that their testimony could and would be procured upon another trial hereof. Appellant stated that he did not have said witnesses MeOarson, Hester, and Rombo present on the trial of this case, because he was surprised at the production of said receipt and the testimony of appellee in reference thereto. The said witnesses resided in Lometa, a distance of-miles from the town of Lampasas, where this case was tried, and that he did not learn of the facts that could be proven by said witnesses Davis or Longfield until after the trial hereof. Appellant also filed with said motion for rehearing the affidavit of A. McFarland, who stated that he was one of the attorneys for appellant, and that on appearance day of the term of court at which this case was tried the attorney for appellee handed him his answer therein, which answer alleged that defendant had paid appellant $100 on April 20, 1913; that affiant kept said answer in his possession until the day of the trial; that an examination of said answer shows that the alleged date of payment had been changed from the 20th to the 19th. Appellant further stated in said motion that the receipt offered in evidence by appellee had been taken from the file in this case by appellee, and that he had been unable to procure the same, and moved the court that appellee be required to return said receipt and place the same with the papers in this cause. The court entered an order requiring appellee to return said receipt, and the same was served upon appellee. It was admitted by appellee’s attorney that at the conclusion of the trial he gave said receipt to appellee, and that the same had not been returned to the files in this case.

The motion for new trial was overruled, from which appellant gave notice of appeal. At the request of appellant, the court entered an order requiring the clerk to send to this court said original receipt. This has not been done, nor is the receipt set out in the statement of facts, for the reason that the same has never been returned and placed among the papers in this case. The clerk has sent to this court the following certificate, showing why he did not send up the original receipt, as ordered by the court:

“A. L. Horne v. W. P. Stockton. No. 297.
“In the County Court of Eampasas County, Texas.
“I, the undersigned county clerk of Lampasas county, Texas, do hereby certify that I have carefully searched the papers and files in above case and do not find among them the original receipt from plaintiff to defendant introduced in evidence by defendant on the trial of said cause and referred to' in the plaintiff’s amended motion for new trial and in the order and judgment of the court herein; and that the defendant has not returned said receipt to this office in accordance with the order of the court in this cause, directing him so to do.
“Witness my signature and .the seal of said court this the 31st day of December, 1914.
“J. E. Morgan, Clerk of the County Court Lampasas County, Texas,
“By Roy Davis, Deputy.” [Seal.]

Opinion.

By the conduct of appellee in taking away and not returning the receipt offered in evidence herein, appellant has been deprived of a correct statement of facts, and has also been deprived of his right to have said original receipt submitted to this court for inspection. This alone would be sufficient cause for reversing this case.

The court should have granted the appellant’s motion for a new trial. It appears that he was surprised at the testimony of ap-pellee and the production of said receipt, and he could not have anticipated the materiality of the testimony of the witnesses McCarson, Hester, and Rumbo. In Wolf v. Mahan, 57 Tex. 175, it is said:

“It is desirable that there should be an end of litigation with as little delay and expense as possible, consistently with the great end of litigation—a correct decision of causes according to their real merits; but it should always be sought in subordination to the great end to be attained.”

We do not think that the testimony of the witnesses is cumulative, but if it were that would be no sufficient reason, under the facts of this ease, for refusing to grant a new trial. In the case above referred to, the court said:

“The reason of the rule forbidding a new trial for the purpose of admitting cumulative testimony does not apply where the party has had no fair opportunity to' procure and adduce evidence on the issue raised by his adversary for the first time, during the trial, by the introduction of evidence which could not be anticipated. * * * The policy which seeks to limit continued litigation does not apply where a party has had no fair opportunity to present his side of the case—no real day in court.”

See, also, Douglas v. Walker, 42 Tex. Civ. App. 213, 92 S. W. 1027.

The answer of appellee, alleging that he had paid appellant $100 on April 20, 1913, did not put appellant upon notice that he intended to prove said allegation by producing the receipt offered in evidence in this case, and therefore appellant was not required to be prepared with evidence to show that said receipt was a forgery, which the testimony of the witnesses tended to prove.

The testimony of the witnesses McCarson, Hester, and Rombo was not newly discovered, in the sense that appellant did not know that he could prove the facts by them as set out in his motion for new trial; but the materiality of said testimony was not known to him until said receipt was produced on the trial of this case. If the receipt was a forgery, as alleged by appellant, he could not anticipate its existence until it was produced in evidence, and therefore could not be expected to have witnesses on hand to prove such fact.

For the reasons stated, the judgment of the trial court is reversed, and this case is remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BROWN v. FLEMING, Sheriff, et al.
    (No. 5536.)
    (Court of Civil Appeals of Texas. Austin.
    April 21, 1915.)
    Courts <&wkey;480—Conflicting Jurisdiction-Enjoining Saue.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, providing that injunctions to stay proceedings in a suit shall be returnable to and tried in the court where such suit is pending, and article 4643, subd. 3, providing that no district judge may grant any injunction returnable to any other court unless the application therefor states that the judge in whose district the suit is brought is absent or sick and unable to act upon the application, or has refused to act upon it, the district court of Mc-Lennan county on an application for injunction, showing no excuse for not presenting it to the district judge of Hunt county, had no jurisdiction to enjoin the sheriff and another from an execution sale of land in McLennan county upon an order of sale issued in a pending suit by the district court of Hunt county.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.)

      Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action for injunction by J. E. Brown, administrator of C. R. Phillips, deceased, against S. S. Fleming, Sheriff, and another. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded, with instructions.
    D. A. Kelley, of Waco, for appellant. Ney-land & Neyland, of Greenville, and L. Aubrey, of Waco, for appellees.
   RICE, J.

Appellant was the administrator of the estate of C. R. Phillips, deceased, pending in the county court of McLennan county, and he brought this suit in the district court of said county against S. S. Fleming, sheriff of said county, and the Beall Hardware & Implement Company, a corporation, whose domicile is in Hunt county, alleging that he, as such administrator, had procured an order of sale from said county court to sell a tract of eight acres of land out of the James Stephens survey, describing it by metes and bounds, situated in Mc-Lennan county, belonging to said estate, in order to pay off and satisfy the indebtedness against said estate, amounting to something over $3,000, besides court costs, and that it was necessary to sell said land for the payment of the debts of said estate; that said Beall Hardware & Implement Company had obtained judgment in the district court of Hunt county against Duke Phillips, Earnest Phillips, and Otis Phillips, sons of C. R. Phillips, deceased, who had a contingent interest in said tract of land, for the sum of $1,651.35 in cause No. 10,614; and that said company had procured an order of sale to be issued out of said court in said cause, based upon said judgment, and placed same in the hands of said sheriff, who had levied said writ upon said land and had advertised the same for sale, and who would proceed to sell the same at sheriff’s sale under said order of sale, unless restrained from so doing, which proceeding, appellant claimed, would cast a cloud upon the title of said estate in said land, and would prevent same from bringing a fair and reasonable price if sold under the order of sale issued from the county court, whereby said estate would suffer irreparable injury, praying that said sale be enjoined. The judge of said court granted said injunction, which was duly issued and served upon the appellees Fleming and the Beall Hardware & Implement Company.

Appellees addressed a general demurrer and two special exceptions to said petition, which were sustained by the court, and a judgment rendered • dissolving said injunction, and decreeing that appellees go hence without day and recover of appellant all costs of suit, from which judgment appellant prosecutes this appeal, urging several assignments of error, none of which need be considered by us, because, though the question has not been raised by either party, we have concluded that the court had no jurisdiction to try, the case, since our statute (article 4653, Vernon’s Sayles’ Texas Civ. Stats. 1914) provides:

“Writs of injunction granted to stay proceedings in a suit, or execution of a judgment, shall be returnable to and tried in the court where such suit is pending or such judgment was rendered.”

The order of sale in this ease was issued out of the district court of Hunt county, and was evidently based upon a judgment foreclosing some character of lien upon said land and directing its sale thereunder. In such case the writ of injunction, when issued by other than a resident judge, by reason of this statute must be made returnable to and tried in the district court of the county from whence the order of sale issued. See Broocks v. Lee et al., 50 Tex. Civ. App. 604, 110 S. W. 756; Seligson v. Collins, 64 Tex. 314; Bell v. York, 43 S. W. 68; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250. The order of sale in this case commanded the sheriff to sell the specific property in controversy; therefore the effect of the injunction was to suspend the operation of such process, and such proceeding not only stayed and suspended the process, but questioned its. validity and regularity as well. When this is the case, the writ must be returned to the county from whence such process issued. See, also, Hendrick v. Cannon, 2 Tex. 259; Winnie v. Grayson, 3 Tex. 429; Cook v. Baldridge, 39 Tex. 250.

In Seligson v. Collins, supra, where Seligson sued Collins in the county court of Galveston county, procuring the issuance of an attachment, which was levied upon land belonging to Collins situated in Coryell county, in whioh case judgment was rendered by default and the attachment lien foreclosed and an order of sale issued, directed to 'the sheriff of Coryell county, who levied upon said land, which was claimed by Collins as his homestead, and who brought suit in Coryell county to enjoin said sale, it was held that, since the order of sale commanded the sheriff to sell the specific property, the effect of the injunction was to suspend the operation of such process until such time as the questions raised by the injunction suit might be determined, for which reason it became imperative under the statute that the writ of injunction should be returned to the court from which the order of sale issued. The instant ease falls within the rule announced in that case and the Broocks Case, supra, and we therefore hold that the district court of McLennan county was without jurisdiction to try the case.

If the process in this case had been an execution instead of an order of sale, then the doctrine announced in Van Ratliff v. Call, 72 Tex. 491, 10 S. W. 578, and in Horvets v. Dunman, 46 Tex. Civ. App. 177, 102 S. W. 462, and Huggins v. White, 7 Tex. Civ. App. 563, 27 S. W. 1066, and other similar eases, to the effect that where plaintiff’s suit is to enjoin a sale of land under execution and judgment to which he is not a party, such suit may be brought in the county where the land lies instead of the county where the judgment was obtained, would prevail; but there is a clear distinction made by the courts between an order of sale and an execution in such cases. As said by Mr. Justice Hobby, in Van Ratliff v. Call, supra:

“There can be no doubt that where the execution of the judgment generally is sought to be prevented, or where the writ is granted to stay (that is, to stop) the execution of a judgment, the statute is imperative and is susceptible of but one construction (that is, that the writ shall be returned or the suit brought in the county where the judgment was rendered).”

In the instant case, however, there is nothing in the petition or application for injunction showing any reasonable excuse for not' presenting the same to the district judge of Hunt county, for which reason also it seems tbAt the writ was improperly issued, as our statute (article 4643, § 3) provides, among other things, that:

“No district judge shall have the power to grant any writ of injunction returnable to any other court than his own, unless the application or petition therefor shall state that the resident judge, that is, the judge in whose district the suit is, or is to be brought, is absent from his district, or is sick and unable to hear or act upon the application, or is inaccessible, or unless such resident judge shall have refused to hear- or act upon such application for the writ of injunction, or unless such judge is disqualified to hear or act upon the application,” etc., which facts must be fully set out in the application for the writ or in the affidavit accompanying it.

Without intimating any opinion as to the correctness of the judgment of the trial court in its rulings upon the exceptions presented, which are challenged by the several assignments of error, yet, for the reasons indicated, we hold that said court had no jurisdiction of said cause, for which reason we have concluded that its judgment should be reversed and remanded, with instructions to dismiss the case, the costs of this court being taxed against appellant; without prejudice, however, to his right, if any he has, to institute another suit.

Reversed and remanded, with instructions.
      <@=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    RELIANCE INS. CO. OF PHILADELPHIA v. DALTON.
    (No. 5401.)
    (Court of Civil Appeals of Texas. Austin.
    March 17, 1915.)
    1.Insurance <&wkey;383 — Construction of Policy-Stipulations Avoiding Policy — Pa-rol Evidence.
    Parol evidence is admissible to show that an insurance company has lost its light to invoke a stipulation in the policy, avoiding it if insured shall procure other insurance without the consent of the company indorsed thereon, by subsequent contract, by waiver, or by estop-pel.
    [Ed. Note. — For other cases, see Insurance, 'Cent. Dig. § 1018; Dec. Dig. &wkey;383.]
    2. Insurance <&wkey;668 — Action ,on Policy-Questions of Fact.
    In an action on a fire polie»’, providing that the policy should be void if assured should procure other insurance without the consent of the company indorsed thereon, evidence held sufficient to justify the submission to the jury of the questions of consent, waiver, and estoppel.
    [Ed. Note. — F'or other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. &wkey; 668.]
    3. Insurance <&wkey;669 — Action on Policy-Instructions — Waiver.
    In an action on a fire policy, voidable if assured should procure other insurance without the company’s consent, an instruction that if plaintiff had told an employé of defendant’s agent that he had taken out additional insurance and intended to take out more and such employé did not object thereto, or if she had told plaintiff that no notice was needed, such facts would constitute a waiver, was misleading in omitting the restriction that the employé must have believed that the question of plaintiff’s right to take out additional insurance was at that time presented to her for action.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dee. Dig. &wkey; 669.]
    4. Insurance <&wkey;669 — Action on Policy-Instructions.
    In an action on a fire policy, void if assured took out additional insurance without the company’s consent, i't was error to refuse an instruction that notice by plaintiff to the insurer of an intention to take out additional insurance in the future, uncertain in time and amount and dependent on certain conditions and contingencies, would not constitute notice or waiver and estoppel.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. &wkey; 669.]
    5. Constitutional Law &wkey;>43 — Right to Assail Statute — Foreign Insurance Companies.
    A foreign fire insurance company cannot assail the constitutionality of Rev. St. 1911, art. 4876, empowering the state insurance board to make regulations whereby an insurance company is prohibited from stipulating that additional insurance on certain property cannot be taken out without its consent, since by the terms of the statute foreign companies are deemed to have consented to its provisions.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 41; Dec. Dig. <&wkey;43.]
    6. Insurance <&wkey;311 — Assignment—Classification.
    Where the owner of a school building took out insurance thereon with the understanding that the policy should not be a co-insurance one, an assignee of the policy could not claim that the building was not properly classified and that the provisions in the policy avoiding it if additional insurance was taken out without the company’s consent were invalid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 704r-708, 762, 781, 827, 841, 874, 890, 903; Dec. Dig. <&wkey;>311.]
    Error from District Court, McLennan County; Richard I. Munroe, Judge.
    Action by Crate Dalton against the Reliance Insurance Company of Philadelphia. Judgment for plaintiff and denial of a new trial, and defendant brings error.
    Reversed and remanded.
    Wm. Thompson, of Dallas, and Jno. S. Patterson, of Austin, for plaintiff in error. Williams & Williams and Witt ■& Saunders, all of Waco, for defendant in error.
   KEY, C. J.

Crate Dalton, as plaintiff, bought this suit against the Reliance Insurance Company of Philadelphia, as defendant, and sought to recover upon a fire insurance policy for $5,000, issued on May 17, 1912, on the Woman’s Building of the Texas Christian University, in the city of Waco. The policy was issued in favor of Otto Stolley and others, but had been duly transferred to the plaintiff, who was the owner of the building at the time it was destroyed by fire on November 11, 1912.

The defendant answered by general and special exceptions, a general denial, and a special plea alleging, among other things, that the policy was void because the plaintiff had taken out other insurance on the property without the knowledge or consent of the defendant. The plaintiff replied to the latter plea and averred that the stipulation in the policy referred to was contrary to law and null and' void, because of the fact that the state insurance board had placed the property in question in a classification known as co-insurance, and that under the rules and x-egulations adopted by that board the contract prohibiting additional insurance without the consent of the defendant was void. The defendant replied to that plea by a general demurrer, special exceptions, a general denial, and a special plea in which it was alleged, among other things, that the act of the Legislature authorizing the insurance board to make the rules and regulations pleaded and relied on by the plaintiff was unconstitutional and void.

Allan D. Sanford, as trustee for the defendant and other insurance companies, filed a plea of intervention, alleging that Otto Stolley and others had a mortgage on the property, and that the policy sued on was payable to them as their interest might appear ; that the defendant had paid the mortgagees $2,005.74 and was subrogated to the interest of the mortgagees, which was evidenced by certain notes and liens which had been assigned to him as trustee for all of the companies having policies upon the property, and asked that he be subrogated to all the rights of Otto Stolley and others, and that, if the plaintiff recovered, he have judgment against him for the use of the defendant for the amount paid upon the policy, and that it be credited upon any judgment the plaintiff might obtain. There were some other pleas which we deem it unnecessary to refer to.

The court overruled all exceptions. The case went to trial before a jury, and resulted in a judgment in favor of the plaintiff against the defendant for $5,000 and in favor of Sanford, as trustee, for $2,005.74 as a credit on the judgment for the plaintiff, leaving a net judgment in favor of the plaintiff for the balance. The defendant’s motion for a new trial was overruled, and it has brought the case to this court by writ of error.

Though the defendant in the court below has become the plaintiff in error in this court, and the plaintiff in that court is the defendant in error in this, in the further progress of this opinion the plaintiff and the defendant in the trial court will be designated as “appellant” and “appellee” in this court. With this explanation of the case, we shall now proceed to a consideration of the questions which we deem it necessary to decide.

1. Appellant complains of the action of the trial court in refusing to give a requested instruction directing a verdict for it. The contract-of insurance, which is the policy sued on, limits the total amount of insurance to $15,000 and stipulates that the entire policy shall become void if the assured shall procure other insurance without the written consent of the company indorsed upon or added to the policy. The uncontradicted proof shows that the plaintiff procured other insurance upon the property, amounting to $10,000, without the written consent of the defendant, and therefore it is contended that the policy was void and the plaintiff not entitled to recover. Whatever may be the decisions in other jurisdictions, we regard it as settled in this state, in accordance with the weight of authority, that it may be shown by parol evidence that an insurance company has lost its right to invoke such a stipulation in the contract of insurance in either of three ways, which are: (1) By subsequent contract; (2) by waiver; and (3) by estoppel. Such, in effect, was the ruling of this court in British American Assurance Co. v. Francisco, 123 S. W. 1144, as to the question of parol waiver ; and, by analogy, the same rule would apply as to subsequent contract or estoppel. In fact, in the law of insurance, estoppel and a waiver are often treated as one and the same, though the text-writers make a distinction between them. The case cited was approved by the Supreme Court, and therefore the law is settled against appellant’s contention in this regard.

It is also contended on behalf of appellant that the testimony relating to the questions of consent to the additional insurance and of waiver or estoppel was not sufficient to justify the court in submitting either of those questions to the jury, and that therefore appellant’s request for an instructed verdict should have been granted. In view of the testimony given by the appel-lee to tlie effect that he told appellant’s agent Hays that he had procured the additional $10,000 insurance, we overrule that contention, although other testimony given by the same witness may tend to impair the force of that testimony.

2. Appellee testified that before procuring the additional insurance, and while consulting Miss Johnson, one of appellant’s agents, about another matter, he told her that he intended to take out additional insurance upon the property as certain improvements then in progress or contemplated should progress, and stated that Miss Johnson reguested him to place such additional insurance with her firm, known as Hays Bros. He also testified, as before stated, that he notified Hays before the fire that he had procured the $10,000 additional insurance. He stated that he met Hays on the street and told him of such additional insurance, and that Hays told him that he had better come to the office, as he did not regard such business as transacted unless it was done in the office. He also stated that he told Miss Johnson that he might increase his insurance to $30,000, and that she still insisted on the additional insurance being placed with her firm, and stated that his policies were what are known as co-insurance policies. The proof shows that under a co-insurance policy additional insurance is not prohibited. Both Hays and Miss Johnson denied having had any such conversations with and making any such statements to appellee. In charging the jury the trial court did not undertake to define the terms “waiver” and “estoppel,” nor explain to them what facts would or would not constitute either; but, after briefly stating the nature of the suit, instructed the jury as follows:

“Xou are instructed that if you believe from the evidence that the plaintiff, Orate Dalton, after the policy sued on herein had been issued and transferred to him, gave notice or procured the giving of notice by the firm of Eriedlander & Luedde to the firm of I-Iays Bros, of the writing or procuring of other policies or contracts of insurance on the property covered by the policy herein sued on by said firm of Fried-lander & Luedde, or if you believe from the evidence that the said firm of Hays Bros., through Miss Johnson, waived the giving of notice to the firm of Hays Bros, of the acquiring by him, the plaintiff, of other and additional policies or contracts of insurance on the property covered by the policy of the defendant herein, then in either event you will return a verdict for the plaintiff, and, unless you so find from the evidence that such was the case, you will return a verdict for the defendant.”

The balance of the court’s charge related to the burden of proof, advised the jury that they were the exclusive judges of the facts proven, etc., and gave two forms for use as a verdict. The court also gave the following instruction, requested by the plaintiff:

“Gentlemen of the jury, you are further instructed that if you find from the evidence that the plaintiff at any time after the issuance by Friedlander & Luedde of the Firemen’s Fund policy (which was on the 17th day of September, 1912), and prior to the 6th day of November, 1912, told Miss Johnson in substance that he had taken out $5,000 additional insurance and that he was going to take further additional insurance on said property in a short time, and that Miss Johnson, acting for the firm of Hays Bros., made no objection thereto, then, if you so find, you will find for the plaintiff, or if you believe from the evidence that Miss Johnson, acting for said firm of Hays Bros., at any time between the 17th day of September and 6th day of November, 1912, told the plaintiff, in substance, that this was a co-insurance risk, and that there was no need for notice of additional insurance, and that he relied on said statement fully, then, if you so find, you will find for the plaintiff.”

The defendant requested, and the court refused to give, the following special charge:

“Gentlemen of the jury, you are instructed that notice by the assured to the defendant of an intention to take out additional insurance in the future, uncertain in time, uncertain in amount, and depending upon uncertain conditions, and depending on a future and uncertain improvement and enhancement in the value of the _ property, will not constitute a notice of the taking of other insurance nor a waiver or an estoppel of the conditions of the policy against additional insurance.”

The refusal to give this latter charge forms the basis of one of appellant’s complaints, and we sustain that complaint. New Orleans Insurance Ass’n v. Griffin & Shook, 66 Tex. 232, 18 S. W. 505. As before stated, in the main charge the court did not attempt to define the terms “waive” or “waiver,” but the special charge given at the request of the plaintiff, in effect, told the jury that the facts therein referred to would constitute a waiver, and entitle the plaintiff to recover. That charge was not correct and was calculated to mislead the jury, because it omitted the restriction and qualification which would have been supplied by appellant’s requested instruction. In other words, if what occurred between appellee and Miss Johnson did not apprise her of the fact that he intended to procure additional insurance that he would not be entitled to without appellant’s consent, but merely led her to believe that, on account of additional improvements which he contemplated making, it was his intention to procure additional insurance because of the increased value of the property, and also led her to believe that the question of his right to take out such additional insurance would come up in the future, and was not then presented for action by her, then her failure to object was neither proof of consent, waiver, nor estoppel.

3. But it is insisted on behalf of appellee that the stipulation in the policy concerning additional insurance is void, because of the fact that the property insured was so classified by the actuary of the state insurance board as to render it what was known and classified as co-insurance property, upon which class of property the rules and regulations of the insurance board prohibited contracts limiting the amount of insurance, etc. Though the statute here involved has been repealed, it was in force at the time of this transaction. Appellant contends, however: (1) That the statute referred to, which conferred upon the state insurance board the power to prescribe the terms and conditions of contracts of insurance, constituted a delegation of legislative power, and was therefore unconstitutional and void; and (2) that the stipulation in the policy here involved prohibiting additional insurance did not contravene that statute, or any rule or regulation of the insurance board. Counsel for appellant have cited an array of authorities and made a forcible argument upon the proposition that the statute referred to was unconstitutional for the reason that it undertoot to delegate to the state fire insurance board powers which could only be exercised by the Legislature. In a proper case the authorities and argument' referred to would be persuasive, if not convincing, and might accomplish the desired purpose; but appellant is a foreign corporation and can do business in this state only upon such terms as the state deems proper to prescribe, and the statute now under consideration contains a provision to the effect that every fire insurance company, etc., then having or subsequently procuring authority to transact business in this state, shall be deemed as consenting to the terms and provisions of the statute which appellant attempts to assail in this case. R. S. art. 4876. In Waters-Pierce Oil Co. v. State of Texas, 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed. 657, the Waters-Pierce Oil Company assailed the validity of an anti-trust statute of this state upon the ground that it was unconstitutional and void, but the Supreme Court held that, as the company was a foreign corporation, and as the state had prescribed, as a condition upon which it obtained its permit to do business in the state, that it must accept the terms of the statute there assailed, it could not avail itself of the defense interposed. In other words, it was held in that case, as it had been held in others, that a wide distinction exists between the rights of a foreign corporation and a private citizen or a domestic corporation, and that, as a foreign corporation has no right to transact domestic business within the borders of a state without first obtaining permission from that state, the latter can impose whatever conditions it deems proper, although such conditions might, if an attempt was made to apply them to an individual citizen, be held to contravene constitutional limitations.

So, in this case, as appellant was transacting a domestic business within this state, we think it must be held that it had consented to and was bound by the statute referred to and whatever was done by the insurance board under authority of that statute. However, we are of opinion that, as applied to the facts of this case, that statute and the rules

and regulations of the insurance board do not render void any provision of the policy here involved. The proof shows that the building was erected and formerly used as a dormitory in connection with a college; that the main college building had been destroyed by fire, and the college moved from Waco to Ft. Worth, and thereafter, and up to and including the time of the issuance of the policy here involved, the dormitory building when not vacant was used as a private residence, and it was so occupied and used at the time of the issuance of the policy. The proof also shows that school buildings were placed by the fire insurance board in what was known as the co-insurance classification, by which the assured was required to maintain a certain amount of insurance, and, if he failed to do so, he became a co-insurer with the company on his property. Appellee contends that as to property within that classification the regulations of the fire insurance board do not permit the making of contracts prohibiting additional insurance, while it is conceded that private residences were placed within a classification which permitted the making of such contracts. The proof shows that at the time the policy was written J. B. McCauley, one of the owners of the building, told appellant’s agent with whom he was negotiating for insurance, in substance, that they did not desire a co-insurance policy; that they wanted $15,000 of insurance and desired it so written that if a loss was sustained they could collect the full amount, and did not want it so written that they would be carrying a part of the loss. As before stated, it was shown that at the time referred to the building was occupied as a private residence, and for no other purpose. In view of these facts, we hold that appellee, who claims under McCauley and the other owners of the property at the time the contract of insurance was made, is precluded from! asserting that the building was not properly classified by the agent who issued the policy; and likewise precluded from questioning the validity of the stipulation prohibiting additional insurance.

4. It is contended on behalf of appellant that appellee’s pleading was not sufficient to authorize the court to submit to the jury the question of waiver; and, while we are not disposed to sustain that contention, we deem it proper to suggest that the pleading referred to be so amended as that if appellee desires it will present clearly and distinctly the questions of consent to the additional insurance, and of waiver of the provision of the contract referred to, and of such estoppel as will preclude appellant from availing itself of such provision.

We also suggest that if upon another trial the case is submitted to a jury, and if the testimony presents the issue of waiver or estoppel, or both, the court define those terms in its charge to the jury. While, as before stated, some courts have made no distinction between waiver and estoppel, and, as applied to insurance contracts, have treated them as convertible terms, still, upon principle and the weight of authority, we think they are distinguishable and should be so considered and applied; and in support of our view we copy from Cyc., that most excellent digest of every phase of the law, as follows:

“While waiver belongs to the family of es-toppel, and the doctrine of estoppel lies at the foundation of the law of waiver, they are nevertheless distinguishable terms. It is difficult to make a distinction between waiver and es-toppel which will give to each a clear legal significance and scope, separate from and independent of the other, as they are frequently used in the cases as convertible terms, especially as applied to the law of insurance contracts and in the avoidance of forfeitures. There are, however, several essential differences between the two doctrines. Waiver is the voluntary surrender of a right, estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention, and estoppel may arise where there is no intent to mislead; waiver depends upon what one himself intends to do, estoppel depends upon what he caused his adversary to do; waiver involves the acts and conduct of only one of the parties, estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice or into an altered position, an estoppel involves this element. Estoppel results from an act which may operate to the injury of the other party, waiver may affect the opposite party beneficially. Estoppel may carry the implication of fraud, waiver does not. Estoppel may arise as between consistent remedies for waiver by election to operate as a bar, the remedies must be inconsistent. A waiver may be created by acts, conduct, or declarations insufficient to create a technical estoppel. The most general distinction lies in the fact that the term ‘waiver,’ besides implying an intention on the part of a party to relinquish a right which is not necessarily present in estop-pel, refers only to the act or consequence of the act of the party against whom the waiver is sought to be enforced, regardless of the attitude assumed by the other party; whereas estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy. The distinction is more easily preserved in dealing ' only with express waiver; but where the waiver relied upon is constructive, or merely implied from the conduct of a party, irrespective of what his actual intention may have been, it is at least questionable if there are not present some of the elements of estoppel.” 40 Cyc. p. 255 et seq.

An interesting discussion of the distinction referred to may also be found in vol. 3 Cooley’s Briefs on the Law of Insurance, beginning on page 2459.

Because of the action of the trial court in refusing to give the requested instruction heretofore set out and discussed, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      &wkey;oFor other eases see same topic and ICEY-NUMBBR in all Key-Numbered Digests and Indexes


text:
    INTERNATIONAL & G. N. RY. CO. v. PENNEY.
    (No. 5466.)
    (Court of Civil Appeals of Texas. Austin.
    April 14, 1915.)
    1. Appeal and Error <&wkey;930 — Verdict — Findings in Aid op Verdict.
    Upon defendant’s appeal, facts not found by the jury will, when authorized by plaintiff’s evidence, be found in aid of the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey;> 930.]
    2. Carriers <&wkey;134 — Carriage oe Goods — Loss — Act oe God.
    In an action for the loss of a shipment of two car loads of household goods, evidence that the flood which destroyed the shipment, while the greatest within more than a quarter of a century, was not the greatest in the history of the stream, justified a finding that the flood in question was not such an unprecedented and extraordinary flood that defendant railroad was not required to anticipate and guard against it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. &wkey; 134.]
    3. Appeal and Error &wkey;>1050 — Harmless Error — Evidence — Carriage oe Goods — Negligence.
    In an action against a carrier for the loss of a shipment of household goods by flood, the admission of evidence that defendant’s agents, on the day before and on the day of the loss, knew from telephone messages, reports in the daily papers, telegrams posted up by a postmaster, and as a matter of common knowledge in the vicinity, that the flood situation was critical and that the river might overflow and endanger property, was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 106S, 1069, 4153-4157, 4166; Dec. Dig. &wkey;>1050.]
    4. Carriers <&wkey;133 — Evidence—Flood.
    In such action, evidence for plaintiff, that according to the history of the stream the flood in question was not unprecedented, was admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. &wkey;133.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Action by G. W. Penney against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Perry & Woods, of Franklin, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellant. Lane, Johnson & Killough, of Ilearne, for ap-pellee.
   KEY, C. J.

Appellee sued appellant for damages resulting from the loss of a shipment of two car loads of freight, consisting of household goods, live stock, and chickens. The substance of appellant’s defense was that the property referred to was destroyed by what is sometimes denominated in the books an act of God, alleged in this case to have consisted of an extraordinary and unprecedented flood in the Brazos river, by which the property was destroyed; appellant alleging that the flood was of such magnitude that it could not reasonably have been anticipated and guarded against. There was a jury trial, which resulted in a verdict and judgment for appellee for $3,500, and appellant is prosecuting this appeal. The case was submitted to a jury upon a charge by no means unfavorable to appellant, and no complaint is urged against it. Appellant requested two special charges which were not given, and error is assigned on account of their refusal; but we overrule those assignments and hold that each of the requested instructions was properly refused.

Appellee submitted testimony which authorized the jury to find, and therefore in support of the verdict this court finds, that appellee delivered to appellant at Nile station on appellant’s road the property described in his petition, under a contract of shipment by which appellant bound and obligated itself to transport the property from that station to Goodland, another station on its road; that the property was never transported all the way to Goodland, but the two cars containing the property were by appellant’s employés in charge of the train placed upon a side track at Valley Junction, which side track was considerably lower than appellant’s other tracks at that place. This occurred on December 3, 1913, and before daylight the next morning the Brazos river, which had been rising for several days, overflowed its banks and destroyed the plaintiff’s property, and therefore appellant never delivered the property to appellee.

The testimony will support findings, and we therefore find that, while the flood referred to was perhaps the greatest that had occurred in more than a quarter of a century, it was not the greatest in the history of the stream, because there was testimony tending to show that a greater flood occurred about the year 1852. Hence we hold that the jury was justified in finding that the flood in question was not such an unprecedented and extraordinary flood as that appellant was not required to anticipate and guard against it. We also hold that the verdict of the jury is supported upon the theory that appellant was guilty of negligence in side-tracking and leaving the two cars containing appellee’s property at the place where they were left, and that the proof sustains the amount of damages awarded by the verdict.

Nearly all of the complaints urged in appellant’s voluminous brief are addressed to rulings of the trial court as to certain testimony presented by the plaintiff and held to be admissible by the court. For instance, the court permitted appellee to prove by a number of witnesses, who were not appellant’s agents nor in any wise connected with its business, that on the 2d and 3d days of December they were apprised of the fact that the river was likely to overflow; some of them ascertaining it from telephone messages received from Waco and other points, and some from reports in the daily papers, some from telegraphic messages received and posted up by the postmaster at H'earne, and some witnesses stated, in effect, that it was a matter of common knowledge in the vicinity referred to that the flood situation was critical, and that the river might overflow and endanger both life and property. Appellant objected to all of such testimony as being heart say and not competent for the purpose of showing that it had notice of the approaching flood. Counsel for appellee contend that the testimony referred to was admissible: (1) Because it tended to refute that portion of appellant’s answer in which it alleged that the flood “was sudden, unexpected, unforeseen, unheralded, and the said overflow and flood waters came without the slightest suspicion—sudden and without warning to the people and inhabitants of the lands adjacent to Valley Junction on the line of appellant’s road, as well as to appellant.” (2) That the flood in question, which extended from the headwaters of the Brazos river to the Gulf of Mexico, was an event which so vitally affected the general public as that it was permissible to show by the character of testimony referred to that the approach of the flood was a matter of common knowledge. (3) That the flood was one of such magnitude as that courts would take judicial knowledge of it, and therefore no harm could result from proving it by hearsay testimony. (4) That, the warnings contained in the hearsay testimony referred to having been communicated to appellant’s agent at Valley. Junction, the testimony complained of was admissible. And (5) that, appellant having elicited similar testimony from some of its own witnesses, it is precluded from complaint. We hold that some, and perhaps all, of the reasons assigned by counsel for appellee are a sufficient answer to appellant’s contention that the case should be reversed on account of the admission of the testimony referred to.

We also overrule appellant’s objections urged against certain testimony introduced by appellee for the purpose of showing that, according to the history of that stream, the flood in question was not unprecedented. In that respect, as well as in some others, the case is somewhat similar to Atchison, T. & S. F. Ry. Co. v. Madden Sykes & Co., 46 Tex. Civ. App. 597, 103 S. W. 1193, decided by the Ft. Worth Court of Civil Appeals, and in which it was held that it was competent to prove the history of a stream by hearsay testimony.

There are some other assignments, complaining of the admission of other testimony, all of which have been duly considered; but, as the objections are not regarded as tenable, those assignments are overruled.

No reversible error has been pointed out, and the judgment is affirmed.

Affirmed.

       &wkey;>For other cases se'e same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    IVEY v. DAVIS et al.
    (No. 5511.)
    (Court of Civil Appeals of Texas. Austin.
    June 9, 1915.)
    1. Judgment <@=17 — Process—Cross-Action —Necessity—Appearance.
    Where defendant filed a cross-action against his codefendant, it was necessary that such co-defendant be cited to answer the cross-action, or that he file an answer or otherwise enter an appearance as to that suit, and otherwise the court had no jurisdiction to enter a judgment over in favor of the cross-complainant, though the co-defendant appeared in the main suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§i 25-33, 157, 422; Dec. Dig. <S= 17.]
    2. Appeal and Error <@=185 — Necessity oe Objections Below — Questions oe Jurisdiction — Assignments oe Error.
    Where a eodefendant was not cited as to a cross-action and did not appear thereto, the question of jurisdiction was fundamental, and might be considered on appeal, though not raised below or assigned as error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec. Dig. <@=185.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by the Farmers’ & Merchants’ State Bank of Teague against J. Wed Davis and Joe Ivey, in which defendant Davis filed a cross-action against his codefendant Ivey. From a judgment for the plaintiff against both defendants and judgment over in favor of Davis against defendant Ivey, the latter appeals.
    Reversed as between Ivey and Davis and affirmed otherwise.
    Geo. W. Fryer and R. D. Williford, both of Fairfield, and James Macintosh, for appellant.
   KEY, C. J.

The Farmers’ & Merchants’ State Bank of Teague brought suit against J. Wed Davis and Joe Ivey upon a promissory note. The defendant Davis filed an answer which, among other things, contained a cross-action against his codefendant Ivey. A citation was issued and served upon both defendants, requiring them to appear and answer as to the cause of action set up by the plaintiff bank, but the record fails to show that any citation was issued and served upon the defendant Ivey, requiring him to answer as to the cross-action set up against him by his codefendant Davis. The defendant Ivey filed no answer, though the record shows that he was present when the case was tried; in fact, he testified as a witness, having been called for that purpose by the defendant Davis. The trial resulted in a judgment for the plaintiff bank against both defendants, and judgment over in favor of the defendant Davis against his codefendant Ivey, and the latter has appealed.

We sustain the tenth assignment of error and reverse the case, because the record fails to show that the trial court had acquired jurisdiction to render any judgment in favor of the defendant Davis against his co-defendant Ivey. In so far as that cross-action was concerned, Davis was plaintiff and Ivey was defendant, and before the court could acquire jurisdiction to try that branch of the ease, it was necessary that Ivey be duly cited to answer Davis’ suit against him, or that he file an answer, or otherwise enter an appearance as to that suit. Harris v. Schlinke, 95 Tex. 91, 65 S. W. 172; Kruegel v. Bolanz, 100 Tex. 572, 102 S. W. 110; Johnston v. Fraser, 92 S. W. 49; Field v. O’Connor, 80 S. W. 872.

The fact that Ivey was present when the case was tried, and testified as a witness for one of the other parties, did not constitute such an appearance as obviated the necessity of having him served with citation to answer the suit brought against him by his codefendant Davis, and therefore the court had no jurisdiction to render judgment against him. It is true that Ivey subsequently filed a motion for a new trial, in which motion he did not raise the question of jurisdiction, but that question is fundamental, and therefore it is proper for this court to consider it, either with or without an assignment of error.

As this case has been transferred to this court, and as the other questions sought to be presented in appellant’s brief may not arise upon another trial, or may be decided differently when appellant Ivey makes his defense, we feel constrained to express no opinion concerning them.

For the error pointed out, the judgment is reversed and the cause remanded, as between appellant Ivey and appellee Davis, but affirmed in all other respects.

Reversed and remanded in part, and in part affirmed.


text:
    STEVENS v. MARSHALL et al.
    (No. 5507.)
    (Court of Civil Appeals of Texas. Austin.
    June 2, 1915.)
    1. Appeal and Error <@=758 — Questions Presented for Review — Briefs.
    Where appellant filed no assignments of error and the assignments in his brief did not refer to or correspond with any paragraph of his motion for new trial, he is not entitled to have matters attempted to be presented by the brief decided.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dee. Dig. <@==758.]
    2. Appeal and Error <@=302 — Assignments oe Error — Generality.
    Statements in the motion for new trial that the judgment was contrary to the evidence and the law are too general to constitute assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. <@= 302.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Election contest by John A. Stevens against J. W. Marshall and others. From a judgment for contestees, contestant appeals.
    Affirmed.
    D. E. Odell, of Cleburne, and Walter Collins, of Hillsboro, for appellant. M. S. Wood, of Itasca, and Morrow & Morrow, of Hills-boro, for appellees.
   KEY, C. J.

This is an appeal from a judgment rendered in an election contest. Appellant filed no assignments of error, and the alleged assignments in his brief do not refer to or correspond with any paragraph of his motion for a new trial, and, for that reason, he is not entitled to have this court decide the questions attempted to be presented in his brief. El Paso Electric Co. v. Lee, 157 S. W. 748, and cases there cited; Watson v. Patrick, 174 S. W. 632, and cases there cited. In fact, in his motion for a new trial he merely alleged: First, that the judgment “is contrary to the evidence in said cause”; second, “that the same is contrary to the law in said case.” That motion itself was too general to constitute an assignment of error. Harrington v. Chambers, 143 S. W. 662; Salliway v. Grand Lodge, 164 S. W. 1041; Ross v. Blount, 166 S. W. 913.

Appellees object to a consideration of appellant’s brief, and the objections must be sustained. However, the case is very plain and simple, and we feel constrained to say that, in our opinion, the proper judgment was rendered, and no brief could have been filed in this court which would have entitled appellant to have the case reversed.

Judgment affirmed.
      @=»For other cases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PERROW v. SAN ANTONIO & A. P. RY. CO.
    (No. 5484.)
    (Court of Civil Appeals of Texas. Austin.
    May 26, 1915.)
    1. TRIAL <&wkey;191 — INSTRUCTIONS—ASSUMPTION of Facts.
    In a suit to remove a cloud from land, where the evidence raised the issue whether the land was a public alley, a charge assuming that it was not is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. &wkey;191J
    2. Trial <s&wkey;194r — Instructions—Weight of Evidence.
    Plaintiff sued to remove a cloud from his title, and defendant asserted that the strip of land in controversy was a public alley. Meld, that in determining the question the jury were entitled to consider that defendant’s deed made calls for the alley, and a charge to the contrary is improper, being on the weight of the testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. i>§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <@=cl94.]
    3. Appeal and Error <&wkey;1071 — Review — Determination.
    Where there was testimony authorizing the court to make such additional findings as were necessary to support the judgment, it will not be reversed because the facts found by the jury were insufficient.
    lEd. Note. — Fór other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. <&wkey;> 1071.J
    4. Dedication <&wkey;44r — Existence of Alley— Evidence — Sufficiency.
    In a suit to remove a cloud from title to a strip of land, evidence held to show that it was a public alley.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 85-S7; Dec. Dig. &wkey;>44.]
    5. Appeal and Error.<&wkey;695 — Statement of Facts — Sufficiency.
    The statement of facts in an action to remove a cloud from title should contain photographs and maps introduced as exhibits, and the appellate court may, where such are not included, decline to review the sufficiency of the evidence to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. &wkey;5 695.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by B. M. Perrow against the San Antonio & Aransas Pass Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Appellant’s statement of the nature and result of this suit is as follows:
    “This suit was brought by appellant as plaintiff, against appellee, as defendant, in the district court of McLennan county, Tex., to remove cloud from title to a strip of land about 20 feet in width, extending from First street to River street in the city of Waco, Tex.
    “The defendant owns the land south of and abutting on the disputed strip, and claims an easement under its deed thereto to have same kept open as a way; also, that said disputed strip is a public alley by dedication and prescription. The fee of the alleged alley and the land on both sides of it was owned by C. R. Burke, deceased, at the time of his death, and came into the possession of his administrator, J. J. Potts, as part of the estate. Potts obtained an order of the probate court of McLennan county to sell the land, and sold to defendant that part of it fronting on First street and adjoining the south line of the alleged alley, and he sold to plaintiff the balance of the land, including the alleged alley. The order of the probate court, approving the sales to plaintiff and defendant, and directing deeds to be executed to them, were both made on the same day, to wit, January 23, 1911, and on the following day the administrator made deeds to the parties.
    “In its answer the defendant prayed for judgment establishing its easement and servitude in said property and for general and special relief.
    “There was a jury trial and the case submitted by the court to the jury on special issues. The court construed the findings of the jury as adverse to plaintiff and gave judgment against plaintiff and in favor of defendant, establishing an easement and servitude in favor of defendant in the alleged alley with the right to use and have same kept open as a public alley. Plaintiff moved for a new trial, which was overruled; whereupon he perfected his appeal and brings the cause to this court to revise and correct the rulings of the court below.”
    To this statement, appellee makes the following addition:
    “The land upon which the alley in question is located was originally owned by Patrick Burke and Elizabeth Burke, both deceased, who acquired it in 1885-86, and who are the common source of title. Patrick Burke and Elizabeth Burke had only three children — J. J. Burke, T. W. Burke and O. R. Burke, the latter two of whom are now dead. The appellant and ap-pellee both deraign title through these three sons and their estates.
    “Appellee, in addition to pleading that the alley in question was a public highway by prescription and adverse user, also pleaded that appellant was estopped from denying the existence of the alley as a public highway. The case was submitted on special issues. The appellant did not request that any issues be submitted to the jury other than those submitted by the court.”
    Sleeper, Boynton & Kendall, of Waco, for appellant. R. J. Boyle, of San Antonio, and Neff & Taylor, of Waco, for appellee.
   KEY, C. J.

(after stating the facts as above).

Appellant’s first assignment of error complains because the court refused to give the following special charge requested by him:

“The calls in the field notes contained in the probate proceedings and the deed from J. J. Potts, administrator of O. R. Burke, deceased, to defendant, whereby defendant acquired title to the land described in said proceedings and in said deed, do not, by the calls for the south line of the alley and to run with the south line of said alley, pass to defendant any right to, or interest in, such alley.”

But one proposition is submitted under that assignment, and it reads as follows:

“The owner of land, with an alley or passageway through it not dedicated to public use, passes no right, easement, or servitude in such alley to a grantee to whom he sells the land adjoining such alley by simply calling for a line of the land conveyed to run northwest a given distance to the south line of the alley and thence southeast with the southeast line of such alley, and especially so, when simultaneously, such grantor conveys to another the balance of the land, including the alley by metes and bounds, without making any reference to such alley, such alley not being a way of necessity for the grantee whose deed embraces no part of the alley ; such calls for the alley are merely descriptive and do not amount to a representation that such alley is a public alley or shall be maintained for the use and benefit of the grantee.”

That charge was properly refused for more than one reason. In the first place, it assumes that the alley involved in this case had not been dedicated to public use, which assumption is not sustained by the undisputed testimony. On the contrary, appellee submitted testimony sufficient to support a finding that the alley had been dedicated to public use prior to appellee’s purchase of land adjacent thereto. In the next place, the latter part of that instruction was upon the weight of testimony, because in considering the case the jury had the right to consider the calls for the alley in appellee’s deed as well as all the other testimony in determining whether or not appellant was estopped from denying ap-pellee’s right to have the strip of land in question treated as a public alley.

Appellant’s brief contains several othther assignments of error, all of which present, in different forms and from different angles, the contention that the proof failed to show that the strip of land here involved was a public alley, or that appellee had any legal right to the use of it as such alley. The proof shows that the land upon which the alley in question is located was originally owned by Patrick and Elizabeth Burke, both deceased, who acquired it in 1885-86, and who are the common source of title; they left as their heirs three children, namely, J. J. Burke, T. W. Burke, and C. R. Burke, the latter two being now dead. Both parties deraign title through these three sons and their estates. Appellee acquired title to part of the Burke property January 24, 1911, and its deeds thereto call for the alley in question as a boundary line. Contemporaneously with that sale was a sale of the remainder of the Burke property to appellant, whose deeds call for appellee’s line and do not refer to the alley. In other words, the fee to the land upon which the alley is located was conveyed to and vested in appellant. But if the strip of land in question was a public alley at that time, or if it was represented so to be in such manner as to constitute an estoppel against appellant, appellee was entitled to recover.

In response to special issues the jury found the following facts: That the alley begins at First street and ends at River street, and is 20 feet in width; that the grantors who conveyed lands adjacent to .the alley to appellee knew for what use or purpose appellee was purchasing the property; that they knew at the time that said alley had been used by the public for 20 years or more, and that such use had been open, adverse, and continuous by the public generally; that the owners of the property upon which the alley is situated who sold part of it to appellant and part of it to appellee at the same time, knew of its use as aforesaid by the public as an alley, and intended that it should remain a public alley ; that in leaving such alley open it was the purpose of the owner of the land to afford ingress and egress both for himself and his tenants and for the use of the public; and that such alley had been in use for over 20 years. There were some other findings of fact which we deem it unnecessary to set out. They do not conflict with, but tend to support, the above finding.

Appellant submitted much testimony tending to show that the strip of land in question had never become a public alley, but the appellee submitted testimony to the contrary, and which supports all the findings of the jury. And, if the facts found by the jury were not sufficient to support the judgment rendered for appellee, nevertheless it should not’ be reversed if there was testimony authorizing the court to make such additional findings as were necessary to support the judgment. The court in its decree found that appellee has an easement and servitude in the alley, and appellee submitted testimony which, will support that finding upon two theories, which are: First, that such easement had been acquired by over 20 years’ use of the property as a passway and alley by the public; and, second, that as against the rights of appellee, appellant is estopped from denying that the property in question is a public alley. In support of these propositions, we copy the following correct statement from appellee’s brief:

“The appellee pleaded in part as follows: That it is true the defendant railway company declined to purchase all of said property, because of the fact that there was a public alley 20 feet wide extending from First street to Biver street through said property; and because same had been dedicated to public use and used by the general public as a highway; because same had been used continuously by the public for more than twenty years; and because said property had prior thereto been sold with reference and respect to said alley; and because said alley had been established as a public highway by general dedication and by public use and by implication, and same was in all purposes a legally established alley. And, with this understanding, the said administrator and the several grantors of the defendant and the plaintiff deeded the property to the San Antonio & Arkansas Pass Bailway Company, as hereinafter described, and by their several deeds recognized said alley as a public highway; and that a map showing said alley was made a part of said deeds; and that said purchase was made with respect to said alley, as shown by said map, all of which was known by plaintiff, and said administrator recognized said alley. That the map showed said alley as it existed, and that same was made a part of the deeds of the respective grantors to this defendant, and that said administrator and all grantors signed and acknowledged the deed to this defendant with said map and plot being part thereof, and thereby recognized the existence of said alley as a public highway and sold said property, recognizing the same as a public highway and alley, and that as a matter of law, as Well as of fact, this defendant became the owner of said alley adjoining the defendant’s property to the center of said alley in fee simple, and became the owner of an easement and servitude in said alley.
“It is undisputed in the record, and there is no contention to the contrary, that both appellant and appellee deraign title to the property owned by them respectively abutting on opposite sides of the alley in question through J. J. Burke, individually, Mary Burke (wife of T. W. Burke, deceased) as guardian, and J. J. Potts, administrator of the estate of C. R. Burke, deceased, the heirs at law and devisees of Patrick and Elizabeth Burke, husband and wife, and the mother and father of the said J. j. Burke, T. W. Burke, and C. B. Burke. Patrick and Elizabeth Burke acquired this property upon which the alley in question is laid out in 1885 or 1886. The houses on each side of the alley were there at that time and were probably 10 or 15 years old.
“Wm. Smith testified: T came to Waco when I was ten years old. That was about 34 years that I have been here. * * * That alley was there when I first came to Waco. I remember seeing it there. It has been about 34 years. It has been there ever since that time. I lived on that alley six years. I live there now. The alley extended from First to River streets. That alley is used by the public who want to go in and out there. That is the only way we can go through there, going up through Burke’s quarters, and going up River street. The alley has always been so people could go through it.’
“The testimony showing the intention to dedicate said alley by virtue of the deeds is so voluminous that we cannot insert same without extending this brief an unreasonable length.
“J. J. Potts testified in part as follows: When I negotiated the sale of this land, I knew that there was an alley (meaning the alley in question) immediately north of, and adjoining, the land to be sold to the railroad company, and this fact was acknowledged by me to Chamberlain (the agent representing the ap-pellee in the purchase of the property) and discussed by us. I endeavored to sell the railroad company all of the land belonging to the Burke estate, but Chamberlain refused to contract for any portion of it except that lying south of the alley, and he believing that the alley had been there so long that it had become a public passageway by prescription, which I acknowledged to be correct. * * * I executed deed as temporary administrator, conveying this land to the railway company, to which was attached blueprint showing the location of the alley, and of the property purchased, and which blueprint was made a part of the deed. I have always known this to be a public alley, and have known this for over 20 years; in fact this alley in years gone by was known as “Burke’s alley,” and was notorious for the character of negroes living on the alley. * * * When I sold the land to the railroad company, it was agreed that I was to be allowed to remove the negro houses located there and place them on the south side of and facing the alley. When I negotiated the sale to Berrow, it was understood that he was to acquire the houses situated on the land sold to the railway company and move them to points on the alley on land sold to him, and there was no question in the minds of either of us but what the alley in question was a public passageway, and was to be allowed to remain so as to give means of ingress and egress to the houses belonging to said Perrow, and situated upon and facing the alley on both sides.’
“G. E. Chamberlain testified in part as follows: ‘The book I hold in my hand is the city directory of the city of Waco for the year 1913. A part of this directory shows the streets and alleys of the city of Waco. It shows there an alley known as “Alabama Place.” * * * Alabama Place from 269 River street, west to South First street, with the following house numbers: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19. When I first began negotiations for the purchase of the Burke property, we were offered the privilege of purchasing all of the property belonging to the Burkes; that is, all that Mr. Potts had in charge. We really wanted to buy it all. The reason we did not purchase all or both pieces was on account of the public alley running between the land, through the property from First street to River street. * * * We discussed the matter of the public alley. * * * I told Mr. Potts that there was an alley there, and he agreed with me, and I took the matter up with Mr. Baker — Mr. Waller Baker, our attorney — and he advised me in his opinion that that was a public alley. * * * The purpose of putting that blueprint, or attaching the blueprint to the deed, was to show the location of the property and streets and alleys binding the property; and the blueprint was attached to the deed to show the location of the property and the streets and alleys.’
“The testimony of Willie Smith was in part as follows: ‘That alley was there when I fitfet came to Waco. * * * That was about 34 years ago. * * * It has been there ever since then. I lived on that alley six years. The alley extends from First street to Biver street.’
“S. H. Clayton testified in part as follows: ‘The first time I ever saw the passageway was in 1896. It ran from First street to Biver street, and commenced there at Burke’s saloon.’
“J. W. Brightwell testified as follows: T knew at that time (1891) that there was an alley running from River street to First street (meaning the alley in question). • * * In going down First street you would turn into the alley right around the saloon, just as you pass the saloon and turn. That alley laid from that point through to the river. There were houses on both sides of River street as you went back towards the back end. My recollection before we got to River street there were some houses. There was a vacant lot on the left fronting on River street, but on the right there were houses clear back to River street. That alley at that time was opened to use generally by the public, and everybody that wanted to use it. It was known by all of us as “Burke’s quarters.” ’
“J. J. Burke testified in part as follows: “There were houses on both sides of the alley when he bought it. He (meaning his father) first bought south, and then he bought north. The deed to Patrick Burke was dated April 27, 1886. * * * As to whether these houses had been there 35 or 40 years, I do not know. I think they were 10 or 15 years old when he bought them. I do not know.’
“Lee Davis testified in part as follows: ‘I lived in McLennan county, Tex., all my life. I am now tax collector. * * * I know the location of what is known as Burke’s alley. As to when I first knew that alley as a highway I am not positive. I was there in 1894. * * * During the time I was connected with the sheriff’s office, and since that time, I have known Burke’s alley. In the nineties I knew it as an alley. It was open, and I used to travel through there. It was used by the public generally. I have a picture in my hand that seems to be a picture of that alley.’
“We could add at great length much more testimony that was introduced showing the long use of this alley, and that it was used by the public generally, also showing that the Burkes lived on the property, and knew of its use; but we deem any further statement of the evidence unnecessary at this time.”

In concluding this opinion, and as this is not the first instance in which the same defect has occurred, we deem it proper to advert to the fact that appellant has not brought up a complete statement of facts. From that instrument we copy as follows:

Page 117: “Exhibit No. 9. A large sketch or map of property in question.”
Page 124: “Exhibit No. 15. Photograph of the alley or passway in controversy, located between First and River streets, showing present location of houses, fence, and condition of alley or passway.”
Page 132: “Exhibit No. 21. Blueprint showing map of property with streets, alleys, and location.”

Neither the photograph nor the blueprint maps referred to are contained in or sent up with the statement of facts, and therefore we are not in possession of all of the testimony which was considered by the court and jury in trying this case. J. J. Potts, who acted as administrator of the estate of O. R. Burke in negotiating the sale to appellee, testified, in reference to one of the blueprints referred to^that it was intended not only to contain a description of the property conveyed, but also to "show the location of the streets and alleys. One (or both) of these maps may have shown upon its face that it had been recorded, and that the alley in question had been dedicated to public use. When an appellant seeks to obtain the reversal of a case upon assignments complaining of the action of the court or jury in passing upon testimony, it devolves upon him to present to the appellate court, as well as may be done, all the testimony that was considered in the court below; and, when it is made to appear that this has not been done, perhaps the appellate court would be justified in declining to consider such assignments of error. However, in this case that course has not been pursued, and we have reached the conclusion that, aside from what may have been shown by the maps and photograph referred to, the testimony sustains the findings of the jury and the judgment of the court.

No reversible error has been pointed out. and the judgment is affirmed.

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