author: LEVY, J.

text:
    BRYSON v. ABNEY.
    (No. 1273.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 1, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Dedication (§ 20s’) — Public Road — Evidence.
    Where uninelosed land of a parcel not' platted into lots or streets was used generally by farmers and the public for the purpose of hitching horses, and leaving wagons thereon, and driving across and in a promiscuous way to reach roads on its margin, and there was no act of the owner or his predecessor indicating a purpose to dedicate the land to the public use, there-was no dedication of a right of way.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 17-30; Dec. Dig. § 20.]
    2. Easements (§ 8) — Risht oe Way — PRESCRIPTION.
    Where a use by the public of uninclosed: land of a tract, not platted into lots or streets, was permissive only, an easement of a public way by prescription could not be acquired.
    [Ed. Note. — For other cases, see Easements,. Cent. Dig. §§ 23, 24, 27-33; Dec. Dig. § 8.]
    Appeal from District Court, Harrison County ; H. T. Lytteton, Judge.
    Action by C. M. Abney against J. M. Bry--son. From a judgment for plaintiff,- defendant appeals.
    Reversed and remanded.
    F. H. Prendergast and J. H. T. Bibb, both of Marshall, for appellant. Young & Abney and S. P. Jones, all of Marshall, for appellee.

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

   LEVY, J.

The appellee sought to enjoin the appellant from erecting a store building on the premises in suit, which lies directly in front of the appellee’s residence, claiming that it would depreciate the value of his residence lot. The grounds pleaded for the relief asked are: (1) That there had been a dedication by the owners of the premises to public use; (2) that the premises was a public highway by prescription; (3) that J. W. Furrh, a prior owner, and the vendor of both the parties to this suit, made an agreement with appellee in the purchase and sale of the 30-foot strip off the premises in suit that no buildings should be erected on the part of the premises in suit, and that the right for the premises to thereafter continue as a public highway passed by implication with Furrh’s deed to appellee; and (4) estoppel of J. W. Furrh to deny an easement to the public in the premises.

The court submitted the case to the jury on special issues. The two pertinent questions submitted were: (1) Did John W. Furrh, or those from whom he acquired the property, dedicate the premises in question to the public uses as alleged in the plaintiff’s petition, and (2) did J. M. Bryson either know, or have, notice of such facts and circumstances as would lead an ordinarily prudent person to discover, that the premises had been dedicated to public use at the time he purchased a part of the premises in suit? The jury answered the questions in the affirmative. Upon the verdict a decree was entered perpetuating the temporary injunction previously granted.

The seventh assignment is to the effect that there is failure of proof to support the verdict of the jury that there had been dedication of the premises to public use by John W. Furrh or his predecessors in title. It is believed that the conclusion is inevitable that the finding, as made by the jury, is not supported, as a matter of law, by the testimony in the record. And as the decree was founded on only one alleged ground, there is necessitated a reversal of such decree.

It appears that appellee bought a tract of 3% acres from J. W. Furrh about 22 years ago, and on the eastern part of this lot was located his dwelling, which fronts south. Waskom is a village or community of few inhabitants, and the appellee’s land is in Waskom. It does not appear that AVaskom was ever platted into a town site, or land sold with reference to its being laid off into lots and streets. A public road from the north runs on the east of appellee’s property and intersects on the south a road running from the west. Adjoining appellee’s land on the south, and between it and the roads, there is located an open and vacant plat of land about 123 feet deep by 186 feet long. Between 10 and 12 years ago J. W. Furrh conveyed to appellee a strip off of the north of the above tract of about 30 feet by its length. Recently J. W. Furrh conveyed appellant a lot off of the west part of the strip of approximately 37 by 45 feet, and appellant undertook to erect a storehouse thereon. It is not deemed necessary to set out all the evidence. At the time appellee bought his residence lot the entire strip on the south was open, vacant land, and was so when he bought the 30-foot strip off of it. There is no evidence that any land was by the owners ever platted into lots or streets, or even laid off on the ground. There is no act of J. W. Furrh or his predecessors in title even tending to indicate a purpose to make a dedication of the strip to public use. There is ample evidence showing that the un-inclosed plat was, and had been for years, used generally by the farmers and public of the adjacent territory for purposes of hitching horses, and to drive and leave wagons and other vehicles on, and to drive vehicles across in a promiscuous way to reach the roads on its margin. There appears no specific claim of right in the public to so use it. • All that the evidence shows, we conclude, is a mere permissive use by the public of the vacant plat, and no purpose or intention on the part of J. W. Furrh, or his predecessors in title, that it should be dedicated to the public. The evidence is not sufficient to constitute either a dedication by the owners- or an easement by prescription. De George v. Goosby, 33 Tex. Civ. App. 187, 76 S. W. 66; Heilbron v. Ry. Co., 52 Tex. Civ. App. 575, 113 S. W. 610, 979; City of Atlanta v. Ry. Co., 56 Tex. Civ. App. 226, 120 S. W. 923.

The judgment is reversed and the cause-remanded.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    BALL-CARDEN CO. v. RIDGELL.
    (No. 7157.)
    (Court of Civil Appeals of Texas. Dallas.
    July 4, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Contracts (§ 284) — Construction.
    Where a contract for the sale of gravel provided that the buyers should pay only for material usable under the terms of their contract with the federal government for locks and dams as interpreted by the United States engineer in charge, the determination of the engineer is conclusive.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.]
    2. Contracts (§ 290) — Rejection—Estoppel — Equitable Estoppel — What Constitutes.
    The buyers are not estopped from denying that gravel tendered by the seller was not usable under the contract, because the engineer, after rejecting it, allowed them to use that part which was delivered, upon putting more concrete in the mixture, it appearing that the buyers did nothing to cause the seller to change his position and that the use of additional concrete would vastly increase the expense of the work.
    [Ed. Note. — For other cases, see Contracts,. Cent. Dig. § 1317; Dec. Dig. § 290.]
    3. Contracts (§ 290) — Construction.
    The engineer who rejected the gravel delivered and tendered was not authorized, under the government contract providing that he-might vary the percentage of concrete in case stone dust or sand be found in the gravel, to permit the use of gravel not up to specifications and containing no stone dust and to require additional cement, so as to compel the buyers to accept gravel not up to specifications.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1317; Dec. Dig. § 290.]
    4. Appeal and Error (§ 1175) — Determination.
    Where the case was fully developed below, it is the duty of the appellate court, if possible. to render such judgment as should have been rendered by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dee. Dig. § 1175.]
    Appeal from District Court, Dallas County; Kenneth. Poree, Judge.
    Action by R. R. Ridgell against George A. Carden and P. D. C. Ball, copartners doing business as the Ball-Carden Company. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    B. B. Hemphill, Tarlton, Morrow & Cock-rell, and Gray & McBride, all of Dallas, for appellants. T. B. Ridgell, of Rockwall, and J. C. Muse, of Dallas, for appellee.

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

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

   TALBOT, J.

Appellee Ridgell brought this suit against appellants, Ball-Carden Company, a partnership firm composed of George A. Carden and P. D. C. Ball, alleging that appellants had contracted to buy from ap-pellee 26,000 yards of gravel and sand to be used in the construction of locks and dams numbered 2 and 4 on the Trinity river for the United States government, the total consideration for said gravel and sand being $2,600. It is charged that the appellants, after having taken and used $249.59 worth of gravel, had failed to take the balance of the gravel, as contracted for, and judgment was sought and rendered for the unpaid portion of the contract price for the gravel, the judgment being for $2,350.31, with interest. The contract sued on is in writing, is dated February 26, 1909, and' the portions thereof material to this controversy are as follows:

“Know all men b^ these presents, that I, R. R. Ridgell, for and in consideration of the sum of twenty-six hundred ($2600.00) dollars, to be paid to me as hereinafter set forth, do hereby sell, assign and convey unto Ball-Carden Company, a firm composed of P. D. C. Ball and George A. Carden, twenty-six thousand (26,000) yards of gravel, or gravel and sand, or rock and sand, hereinafter called material, in such proportions as may be desired by Ball-Carden Company ; said material being embraced within and on or under the ground selected by Ball-Carden Company, a part of the premises of the above named seller, situated about two miles in a southerly direction from the town of Kle-burg in Dallas county, Texas. The conditions of this sale are as follows: Said Ball-Carden Company shall not be bound to pay for any material, which is not usable under the terms of their contracts with the United States government on locks and dams Nos. 2 and 4, as the same is or may be interpreted by the United States engineer in charge, nor for any material which, not having been used in such locks and dams, has been washed away or made unavailable for said use by floods or overflows, or otherwise, but the said Ball-Carden Company shall be bound to pay unto said seller, only for said material used in the construction of the said locks and dams, the sum of eleven (11) cents per cubic yard, measured in place as concrete in said locks and dams, and the same shall be paid for according to the estimate of the government, monthly, on the 15th day of each month succeeding the month for which such measurement and estimate is made: For so much of said material as is not used in said . liocks and dams Nos. 2 and 4, and used elsewhere or sold by Ball-Carden Company for such use, but the same is to be used; if material offered comes up to specifications of government, but same must be- offered so as not to delay the use thereof, the said Ball-Carden Company are to pay unto the said seller the sum of ten (10) cents per cubic yard, measured on cars, until said payments, together with the payments made for said material, measured as concrete in place in said locks and dams, as aforesaid, shall equal the sum of twenty-six hundred ($2600.00) dollars, when this contract shall be considered by the parties hereto to have been completely fulfilled. * * * It is understood, as aforesaid, the basis of measurement of the material used in said locks and dams shall be the concrete in place in said locks and dams, but if any party hereto shall be dissatisfied with the measurement of same by the engineer of the United States government in charge, then they shall co-operate together for the purpose of securing an absolutely correct measurement.”

The defendant P. D. C. Ball, not having been- served with citation, did not appear and answer, but the defendants Ball-Carden Company and George A. Carden answered by general and special demurrers, a general denial of the material allegations of plaintiff’s petition, and specially, among other things, that the effect and meaning of the contract which was entered into was that the defendants were not required to accept the sand and gravel offered by plaintiff unless the same should come up to the specifications promulgated by the United States government, whereunder said locks and dams were to be constructed, and were not to be used or paid for unless said sand and gravel were usable by the defendants under the terms of their contracts with the United States government for the construction of said locks and dams Nos. 2 and 4, as said contracts should be interpreted by the United States engineer in charge, that defendants tendered the sand and gravel of the plaintiff to the said engineer in charge of the construction of said locks and dams, and that said engineer decided that said sand and gravel was not usable under the terms of said contracts with the government, and refused to allow defendants to use same in the construction of said locks and dams, and therefore defendants, under the terms of their contract with plaintiff, were not obligated to and did not use said sand and gravel. These defendants also pleaded the statutes of limitation of two and four years in bar of plaintiff’s action. A trial by the court without a jury resulted in a verdict and judgment in favor of the plaintiff against the firm of Ball-Carden Company and George A. Carden individually, and they appealed.

The leading question arising on the appeal, and one that controls the decision of the case, is whether or not the gravel claimed to have been purchased by appellants from appellee came up to or complied with the specifications of appellants’ contract with the United States government and “usable,” as contemplated by tbe terms of appellants’ contract with the appellee, in the construe-' tion of the lochs and dams in question. Appellants contracted to take 26,000 yards of gravel and sand from appellee’s land and to pay him therefor 11 cents per cubic yard, or $2,600 for the whole. They took only about 2,269 yards, paying therefor the sum of $249.59, and appellee’s suit is bottomed upon appellants’ failure to take all the gravel and sand which they agreed to take under the contract of purchase. Appellee testified:

“Mr. Carden paid me for all that he got. My complaint is that they did not take the gravel that they contracted to take.”

The contract for the purchase of appel-lee’s gravel and sand was made after appellants had contracted with the United States government to construct locks and dams Nos. 2 and 4, and for the purpose of enabling them to carry out that contract. Their contract with the United States government specifically regulated the proportions of the sand, gravel, and cement which were to be used in the construction of the work thereby undertaken, and particularly stated that the gravel should be clean and of a satisfactory quality, and that not less than 50 per cent, of it should be composed of pebbles not less than one inch in diameter. As has been seen, appellants purchased appellee’s gravel and sand upon condition that they were not bound to pay for any of it which was—

“not usable under the terms of their contract with the United States government on locks and dams Nos. 2 and 4, as the same is or may be interpreted by the United States engineer in charge, nor for any material which, not having been used in such locks and dams, has been washed away or made unavailable for said use by floods or overflows or otherwise.”

The concrete to be used in the construction of the locks and dams as specified in said contract with the government was to be composed of one barrel of Portland cement, 12 cubic feet of sand, and 24 cubic feet of broken stone or gravel, all measured by loose bulk or an approved method, and in the event stone dust or sand was found in the broken stone or gravel, these proportions might be varied by the engineer to suit the existing conditions. Now, it is placed beyond controversy by the evidence that the gravel contracted for by appellants did not measure up to or comply with the specifications contained in appellants’ contract with the United States government. A. E. Waldron, who was the engineer of the United States government, in charge of and superintending the work of constructing the locks and dams, and whose duty it was to see that the gravel and sand used in the construction complied with the specifications in appellants’ contract with the government, unequivocally testified that the gravel bought by appellants from appel-lee did not comply with said specifications, and that he refused to allow it to be used by appellants in the construction of the locks and dams. Among other things, he said:

“The proportion of large-size pebbles in the gravel was nowhere near that required by the specifications. I refused to allow the use of gravel containing too large a proportion of small-size pebbles. No question arose as to the sand, ‘but the gravel did not comply with the specifications. The contract required that the work be performed in accordance with the specifications mentioned. The proportion of pebbles exceeding said size was not as large as required by the specifications. In fact, as I now recall it, there were practically no pebbles of the size which the specifications required should constitute some 30 or 40 per cent, of the gravel.”

By the terms of appellants’ contract with appellee the question of whether or not the gravel purchased complied with the specifications of appellants’ contract with the United States for the construction of the locks and dams was left to the judgment of the government’s engineer, and the determination of A. E. Waldron that it did not is conclusive of the matter, regardless of any view other witnesses may have expressed in relation thereto, and settles the issue in favor of the appellants.

But notwithstanding the engineer decided that the gravel agreed by appellants to be taken from appellee’s land did not comply with the specifications of appellants’ contract with the United States government, yet the evidence clearly shows that afterwards the engineer agreed that the gravel might be used in the construction of the locks and dams, provided appellants would use in the concrete mixture an additional sack of cement to each cubic yard thereof, and that appellants, under this requirement, used the amount of gravel paid for by them, and appellee contends that in view of these facts appellants are estopped from denying that the gravel was usable under their contract with the government. Should this view of appellee be sustained? We think not. The theory of estoppel advanced is not, in our opinion, correct. There is no- evidence in the record that appellee was induced by the conduct of appellants to change his attitude with respect to the written contract made with appellants or the subject-matter of said contract; nor is there any testimony that said contract was ever in any manner altered or modified. Plaintiff’s petition and alleged cause of action is based solely upon said written contract, and appellee testified that Ball-Carden Company never asked him to make any change in said contract. Besides, in appellee’s brief it is declared that he “relies for a recovery upon the contract between appellant and appellee which appears in the statement of’ facts.” The undisputed evidence is that the engineer of the' United States government condemned the gravel agreed to be taken from appellee, on the ground that it did not come up to the specifications in appellants’ contract with the government, and only permitted the use of it at all upon the condition that one sack of ee.ment, in addition to the number required by •the specifications, be used; that the amount -of gravel used by appellants, after this demand of the United States government, was used by appellants in an honest effort to ■perform their contract with the government, and that this effort demonstrated that the use of the extra sack of cement would entail upon them an additional expense, in constructing the locks and dams of about 50 cents per yard of concrete to be used therefor, and would be practically prohibitive of the use of appellee’s gravel in doing that work. It is because of this effort that appel-lee contends that appellants have forfeited their right to insist upon the recognition by the courts of that provision of their contract with appellee which renders them liable to him, for only such gravel as was usable, under the terms of their cpntract with the United States government, and our conclusion is that the contention is not sound.

The claim of appellee to the effect that, under the terms of appellants’ contract with the United States government, the engineer was authorized to vary the proportions of the gravel, sand, and cement to be used in the concrete mixture, and that therefore the engineer, in requiring the use of the •extra sack of cement, did no more than said contract provided for, is not borne out by the language of the contract. The only power given the engineer to vary the proportions of gravel, sand, and cement, as specified in the contract, was where “stone dust or sand was found in the -broken stone or gravel.” In this event only was the engineer authorized to vary the proportions to meet and satisfy the existing conditions. The contract will be searched in vain for authority conferred upon the engineer to vary the requirement as :to the quality or size of the gravel to be used, and the contract expressly stipulates that the gravel “shall be clean and of a satisfactory quality, and not less than 50% of it shall be composed of pebbles and not less than one inch in diameter.” It is not pretended that because of “stone dust” or “sand” found in the gravel acquired from appellee, the engineer was authorized to demand the ■use of the extra sack of cement. There is no ■evidence whatever that such dust or sand was found in the gravel, and hence no basis for any such contention.

Our conclusion is that the gravel appellants contracted to take from appellee’s land was not “usable” under the terms of appellants’ contract with the United States government according to the ruling of the government’s engineer, and that therefore appellants, under the terms and conditions of their contract of purchase from appellee, were not bound to take and pay for said gravel, and that judgment should have been rendered in the court below in their favor. This conclusion renders it unnecessary to consider any other question presented in appellants’ brief, and, as the case seems to have been fully developed, it becomes our duty to render in this court such judgment as should have been rendered in the trial court.

It is therefore ordered that the judgment of the district court be reversed, and that judgment be rendered in this court for appellants.


author: RAINEY, C. J.

text:
    ST. LOUIS, S. F. & T. RY. CO. v. SMITH.
    (No. 7219.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 21, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Limitation of Actions (§ 127) — Amendment of Pleading — New Cause of Action.
    Where a widow of a railroad employé killed while engaged in interstate commerce sued as widow, asserting that her cause arose under a state statute, it was not. the beginning of a new action for her to file an amended petition as the personal representative of the deceased seeking recovery under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), as the substitution of the personal representative relates back to the filing of the original petition; hence limitations did not apply to the filing of the amended petition.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    2. Costs (§ 32) — Awaed.
    Where the widow of an employé of a railroad company killed while engaged in interstate commerce ultimately recovered judgment under the federal Employers’ Liability Act as his personal representative, it was not improper, though the railroad company procured the reversal of a judgment in favor of the widow where she sued as such, to assess all costs against the company, including those up to the time the widow was substituted as personal representative.
    [Ed. Note.- — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.]
    Appeal from District Court, Grayson County; W. M. Peck, judge.
    Action by Maude Smith, administratrix, against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. Wolfe & Wood, of Sherman, for appellee.

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

   RAINEY, C. J.

This suit was originally instituted by Maude Seale, F. H. Seale, and J. E. Seale, widow and father and mother, respectively, of M. T. Seale, deceased, to recover damages for the death of the said M. T. Seale, who was killed by being run over by a switch engine in the yards of the St. Louis, San Francisco & Texas Railway Company at Sherman, Tex., on January 16, 1909. A verdict and judgment was obtained by said parties, from which an appeal was perfected by the railway company to the Court of Civil Appeals for the Fifth supreme judicial district, and the judgment of the lower court was, Try said Court of Civil Appeals, affirmed; the judgment of affirmance being reported in 148 S. W. 1099. A writ of error was denied by the Supreme Court of the state of Texas. The holding of the Court of Civil Appeals, in so far as the same affects the issue now before this court, was that the facts did not disclose a cause of action arising. under the federal Employers’ Liability Act; but, if they did, the contention of the railway company that the suit should have been brought by a personal representative of the deceased should have been taken advantage of by proper pleading in the trial court. A writ of error was 'granted by the Supreme Oourt of the United States. That court held that the facts disclosed a cause of action arising under the federal Employers’ Liability Act, and that the suit could be prosecuted only by a personal representative of the deceased, and reversed and remanded the case without prejudice to such rights as a personal representative of the deceased may have. The opinion may be found in 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. Upon the return of the mandate from the United States Supreme Court a motion was made in the Court of Civil Appeals for the Fifth district to enter judgment in its behalf on the ground that more than two years had elapsed since the accrual of the right of action, and that the making of the personal representative a party would be the beginning of a new suit, and was therefore barred by limitation. This motion was refused. The opinion on said motion may be found in 160 S. W. 317. Since the filing of the original suit, Maude Seale, widow of M. T. Seale, deceased, intermarried, with one Frank Smith, and having theretofore been appointed administra-trix of the estate of the deceased for the purpose of prosecuting this suit, on the 11th day of December, T913, she filed a motion in the trial court asking permission to be substituted as the party plaintiff in lieu of the original parties plaintiff, which motion was duly granted by the court. After the granting of said motion, but on the same day, to wit, December 11, 1913, she filed her third amended original petition in which she prosecutes her suit as personal representative of the deceased. The cause was tried on January 19, 1914, and resulted in a verdict and judgment in favor of appellee for $7,500. Appellant presented its motion for new trial, which was by the court overruled. Exceptions were reserved to the action of the court in that regard, as to other matters on the trial of said cause, and the cause is appealed to this court for review.

The first assignment of error complains of the action of the court in overruling defendant’s third special exception to plaintiff’s third amended original petition on the ground that it asserts a new cause of action, and was filed more than two years after the accrual of the original cause of action.

The proposition presented'is that:

“Appellee’s original petition and first and second amended original petitions asserted a cause of action under the Texas Death Statute. The third amended original petition asserts a cause of action under the provisions of the federal Employers’ Liability Act, which is a new and distinct cause of action from that asserted in her origiüal pleadings. The third amended original petition was filed more than two years after the cause of action arose, and, under the provisions of the federal Employers’ Liability Act, the same is barred, and appellant’s exception to said petition on that account should have been sustained.”

The allegations in the last amendment and to which the exceptions were leveled are substantially, in fact almost literally, the same as those in the second amendment, except in the last the widow of the deceased, M. T. Seale, having married again, and having been appointed administratrix of his estate, by leave of the court, as such representative made herself a party plaintiff in lieu of the original plaintiff. The last amendment did not set up a new cause of action under the provisions of the federal Employers’ Liability Act any more than did the second amendment. On the first appeal the case was affirmed, but on writ of error to the Supreme Oourt of the United States it was reversed, because plaintiff was not capable of recovering in her individual capacity, “but only through the deceased’s personal representative.” Railway Co. v. Maude Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 19140, 156.

The substitution of the personal representative of a deceased party is not the beginning of a new cause of action, but it relates back to the filing of the original petition.

We think the case of Railway Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, is decisive of this proposition. The holding of our Supreme Oourt is to the same effect. Price v. Wiley, 19 Tex. 142, 70 Am. Dec. 323; Martel v. Somers, 26 Tex. 551, and others.

The amendment setting up no new cause of action, the statute of limitation did not apply (Railway Co. v. Davidson, 68 Tex. 370, 4 S. W. 636), and there was no error in the overruling of the exception.

What we have heretofore said settles the third assignment of error against appellant, and it is overruled.

The second assignment of error complains of the court for not taxing the costs that had accrued in said suit up to the time of making new parties, etc., against plaintiff. The court did not err in this respect, and said assignment is overruled.

The judgment is affirmed.


author: McMEANS, J.

text:
    BANKS v. BLAKE et al.
    (No. 6710.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Appeal and Error (§ 750) — Assignments of Error — Effect.
    An assignment that the court erred in overruling plaintiff’s motion to set 'aside the judgment for defendants and to retry the cause on its merits as between all the parties, because the judgment was not final, in that it did not dispose of the rights of all the parties, nor all the issues, such motion being merely one for a new trial, and filed too late, and not an equitable suit for a new trial, was insufficient, to present for review the question whether the judgment was final.
    (Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750-.]
    2. Appeal and Error (§ 20) — Orders Ap-pealable — Jurisdiction.
    Where a motion for a new trial to set aside a judgment rendered at a former term was filed too late, so that the district court had no jurisdiction to entertain it, no appeal Would lie from an order overruling the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. § 20.]
    3. Appeal and Error (§ 719) — Appellate Court — Jurisdiction.
    It is within the province of the Court of Civil Appeals to determine in any case whether it has jurisdiction to entertain an appeal, regardless of whether the matter is presented by an assignment of error.
    [Ed. Note.' — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. .§ 719.]
    4. Partition (§ 95) — Proceedings — Final Judgment.
    Plaintiff sued for partition, claiming an undivided interest in the land in controversy, and, his suit being resisted on the ground that he had no title, he appealed, and pleaded, in addition to the plea of not guilty, the defense of the statute of limitations of three, five and ten years. A verdict was rendered in favor of defendant B. alone, while the judgment recited that plaintiff take nothing and the defendants go hence, etc. Held, that the effect of the judgment was to declare that plaintiff had no title to any part of the land, and therefore was not entitled to partition as to one and all of the defendants, who, so far as plaintiff’s claim was concerned, were entitled to go hence, etc., and was therefore final.
    [Ed. Note. — For other eases, see Partition, Cent. Dig. §§ 300-316; Dec. Dig. § 95.]
    Error from District Court, Jasper County; W. B. Powell, Judge.
    Suit by W. Gerard Banks against Roi Blake and others for partition. From a judgment in favor of defendants, plaintiff brings error, and appeals from an order denying a motion to set aside the judgment and for a new trial.
    Affirmed.
    See, also, 143 S. W. 1183.
    '.H. C. Howell, of Jasper, for plaintiff in error. Blake & Williams, of Jasper, for defendants in error.

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

   McMEANS, J.

W. Gerard Banks brought this suit against Roi Blake, Henry Bendy, Marunda Bendy, Robert Bendy, Jim Bendy, Alma Bendy, Alford Bendy, Mrs. Emma McKinney, John McKinney, Mrs. Willie Watson, Dave Watson, Mrs. Dora Wagner, F. M. Wagner, Kate Dawson, Wyatt Dawson, Jerry Bryant, and Alice Bryant for partition of 177 acres, the Jesse B. McNeely labor of land, in Jasper county; the plaintiff claiming an undivided interest of 157 acres therein, and conceding the ownership of 10 ■ acres to the defendants Roi Blake, Jerry Bryant, and Alice Bryant, and 10 acres to the other defendants.

Defendants Kate and Wyatt Dawson answered, praying that the land be partitioned .and that the portion thereof to which they were entitled be set apart to them. The defendants Dave and Willie Watson answered, pleading a general demurrer and general denial. The defendants Roi Blake, Jerry Bryant, and Alice Bryant answered, denying that they were tenants in common with plaintiff, but alleged that they were the owners in fee simple of the entire labor and in possession thereof, and pleaded not guilty, and also filed a cross-bill, in which they sought, by action of trespass to try title, to recover the whole tract. In their answer they sought no recovery as against their codefendants. The other defendants did not answer. .

To the cross-bill above mentioned the plaintiff answered, pleading not guilty and - the statute of limitation of three, five, and ten years.

The case was tried before a jury, and upon a verdict in favor of defendant Roi Blake alone a judgment was entered, which recited:

“That the plaintiff, W. Gerard Banks, take nothing by his suit, and that defendants go hence without day, and that plaintiffs pay all costs in this behalf expended,” etc.

At the next succeeding term of the court the plaintiff, claiming that the judgment theretofore rendered was not a final judgment, filed a motion to set aside the judgment and to retry the case, which motion was by the court overruled, to which plaintiff excepted and gave notice of appeal. After-wards the plaintiff, Banks, sued out a writ of error from the original judgment and from the judgment overruling his motion to set aside the judgment and retry the case, and the appeal is now before us.

Appellant’s only assignment of error is as follows:

“The court erred in overruling the motion of plaintiff, W. Gerard Banks, to set aside the judgment rendered in said cause on the 11th day of December, A. D. 1912, and to retry said cause on its merits as between all the parties to said cause, and in refusing to set aside said judgment and retry said cause on its merits as between all the parties to said cause, because said judgment is not a final judgment, in that it does not dispose of all the parties nor all the issues between the parties in said cause.”

We are of the opinion that this assignment of error is not sufficient to bring into review the question of whether the judgment was or was not a final judgment. The only complaint presented by it is as to tbe action of tbe court in overruling a motion to set aside tbe judgment made at a subsequent term of tbe court. This motion cannot be regarded as an equitable suit for a new trial because of tbe absence of necessary allegations to make it such. Being merely a motion to set aside- a judgment which bad been rendered at a former term, in other words, a motion for a new trial, tbe district court was ■without jurisdiction to entertain it, because it came too late. This being true, no appeal therefrom would lie, and therefore this court has no jurisdiction to pass upon the question presented by the assignment.

But it is. within the province of this court to determine in any case whether it has jurisdiction to entertain an appeal, regardless of whether the matter is presented by an assignment of error, and-in determining that question in this case we have carefully looked to the record to determine whether the judgment appealed from was or was not a final judgment, and after mature deliberation have concluded that_ it was final. It is true that the judgment does not follow the verdict, for the verdict is in favor of Boi Blake alone, while the judgment is that the plaintiff take nothing, and that the defendants go hence, etc. The plaintiff makes no complaint of this error, and, if he had, no question of our jurisdiction could have been predicated upon it. The suit as originally brought was for partition, the plaintiff claiming an undivided interest in the land. His suit was resisted on the ground that he had no title, and to meet this contention he pleaded, in addition to the plea of not guilty, the defense of the statute of limitations of three, five, and ten years. The effect of the judgment as rendered was to declare that he had no title to any part of the land, and therefore he was not entitled to a partition, and that, as to the defendants — all of them, that is, so far as plaintiff’s claim of title and right of partition were concerned — they go hence without day. We think, therefore, that such judgment was final, and as the case is before us without any assignment of error that we can sustain, the judgment of the court below must be affirmed; and it has been so ordered.

Affirmed.


author: HIGGINS, J.

text:
    PATTERSON et ux. v. SYLYAN BEACH CO.
    (No. 348.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 19, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1. Appeal and Eeeoe (§ 630) — Teansoeipt —SUEPICIEN CT.
    The clerk’s transcript and statement of facts sent by the clerk of the Court of Appeals to counsel for respondents was not returned, having been lost. As a substitute for the lost papers, they tendered a duplicate copy of the statement of facts which had been filed in the court below, but which was not certified by the clerk of the lower court, although appellants’ counsel agreed that it was a true and correct copy of the record. Held that, as appellee’s counsel could easily have procured a substitute transcript regularly certified, hut failed to, though the Court of Civil Appeals advised them that the duplicate copy would not be considered, the copy will be rejected, and the statement ot the nature and result of the suit contained in appellants’ brief and the statements supporting the assignments of error will be treated as correct.
    [Ed. Note — Por other cases, see Appeal and Error, Cent. Dig. § 2723; Dec. Dig. § 630.]
    2. Judgment (§.248)- — Coneoemitxto Pleading.
    Where a corporation sought to set aside conveyances made by its officers to defendants on the ground that the officers were not authorized to make the conveyances, and that the consideration was wholly inadequate, and defendants asserted that the contracts were entered into fairly for the consideration paid, a money judgment affirming the deeds, but allowing the corporation to recover the claimed deficiency in the purchase price, must be reversed, being without support in the pleadings or evidence.
    [Ed. Note. — Por other cases, see Judgment. Cent. Dig. § 434; Dec. Dig. § 248.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Sylvan Beach Company against J. T. Patterson and wife. Prom a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Cooper, Merrill & Lumpkin and John R. Burkett, all of Houston, and Brown & Terry, of El Paso, for appellants. A. B. Wilson and Cole & Cole, all of Houston, for appellee.

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

   HIGGINS, J.

After the submission of this case, it was discovered that the clerk’s transcript and statement of facts were missing from the files, having been sent some months previous by the clerk of this court to counsel for appellee, • who had failed to return same. Their attention was called to the matter, and it developed that same had been lost or misplaced by them, and thereupon an opportunity was afforded of substituting the same. As a substitute for the lost papers, they tendered a duplicate copy of statement of facts which had been filed in the trial court as by law required, together with what purported to be a copy of the original clerk’s transcript. This tendered clerk’s transcript was without any certificate by the clerk of the lower court, but it was agreed by appellants’ counsel that it was a true and correct copy of the record as originally prepared by the clerk of the lower court.

In view of the fact that a clerk’s transcript regularly certified could have been readily procured from the clerk of the lower court and tendered as a substitute for the lost one, and being of the opinion that it was advisable the substituted transcript should be so authenticated, and a mere agreement of counsel that the same was correct should not be accepted in lieu of a certificate, the clerk was instructed to advise appellee’s counsel that the substitute tendered for the clerk’s transcript was not regarded as sufficient, and to instruct them that such transcript must be regularly certified to by the clerk of the lower court as in case of an original transcript. Counsel were so advised, but they have seen fit to disregard this holding of the court, and have again .tendered the copy which we had theretofore indicated was not acceptable, and moved the court to allow the same and the duplicate copy of the statement of facts to be filed as a substitute for the original record. Believing, for the reason above indicated, that the proposed substitute clerk’s transcript is insufficient, the motion to substitute will be overruled, and it becomes necessary for us to dispose of the appeal as best we may without the record. We will therefore accept as correct the statement of the nature and result of the suit contained in appellants’ brief, together with the statements supporting the various assignments of error as being correct, and will dispose of the assignments upon such assumption.

Suit'was instituted by Sylvan Beach Company against J. T. Patterson and Nelle W. Patterson, his wife; the cause of action being stated as follows:

Eirst. Suit in ordinary form of trespass to try title to lots 19 and 20. block 13, Sylvan Beach, First subdivision Johnson Hunter survey, Harris county, Tex., alleging ejectment, of date December 1, 1912.

Second. Seeking cancellation of two deeds to property above described, on ground of want of authority in officers of plaintiff’s company to execute same, and alleging that fiz'st of said deeds was executed on December 21, 1911, by W. C. Porterfield, vice president of plaintiff’s company, attested by H. M. Porterfield, as secretary of the company, conveying said lot 13 to appellant Nelle W. Patterson, for a recited consideration of $500, and that the second of said deeds was executed on May 18, 1912, by A. I-I. S. Talbot, vice-president of plaintiff company, and' attested by J. T. Patterson, appellant, as secretary thereof, which deed also conveyed lot 19, above'described, for a recited consideration of $500 cash; that the reasonable market value of said lots at time of execution of said deed was from $500 to $700 each, which fact was well known to appellant J. T. Patterson at the time; that neither of appellants paid any consideration for either of said deeds, or, in the alternative, they paid only the sum of $150 each for said lots; and that such consideration was so grossly inadequate as to render the deeds void on the ground that the officers of plaintiff’s company were without authority to execute said deeds for a less consideration than the reasonable market value of the property, which fact is alleged to have been known to appellant J. T. Patterson at time deeds were executed.

Third. For alternative pleading, the petition alleged: “Plaintiff further represents to the court that said property hereinabove described has not been paid for by the defendants or either of them, and if the court should find that plaintiff is not entitled to recover said lots, then plaintiff is advised and believes that it has a right to have its equitable lien against said property established and enforced for the unpaid purchase money, which defendants should have paid plaintiff for said lots and which are due and owing plaintiff in the event the court should hold said deeds to be valid and binding upon the plaintiff.”

The trial court’s judgment was based upon this last-mentioned portion of the petition. Appellants answered by exceptions, plea of not guilty, and special plea that the lots were purchased from the plaintiff' for an agreed consideration of $150 each, which was paid to and accepted by it by giving proper credit on ato indebtedness from the company to J. T. Patterson, and the deeds in question were executed by proper officers of the company, with full knowledge of all the facts.

The cause was submitted to the court without intervention of a jury, and judgment rendered on June 11, 1913, in favor of appel-lee, establishing an indebtedness against appellants jointly in the sum of $708.75, with interest at 6 per cent., on account of unpaid purchase money for said lots, establishing an implied vendor’s lien against the property above described, and ordering foreclosure in the usual form. From this judgment the defendants appeal, assigning as error:

First: “The court erred in rendering judgment in favor of plaintiff establishing and foreclosing an equitable lien on the lots in controversy, for the reason that such judgment is without pleading to support it, in this: That said pleading wholly fails to allege the existence of any agreement on the part of the defendants, or either of them, to pay to plaintiff as consideration for the lots in controversy, or either of them, any sum whatever in excess of the amount found by the court to have been paid by the defendant J. T. Patterson at the time the deeds were executed.”

Second: “The court erred in overruling, and not sustaining, the special exception contained in the third paragraph of their amended answer, which points out the insufficiency of that part of plaintiff’s first amended original petition which seeks the establishment and foreclosure of. an equitable lien in favor of the plaintiff on the ground that said pleading fails to allege the existence of any agreement on the part of the defendants, or either of. them, to pay to the plaintiff any consideration for the lots in controversy other than the cash consideration paid at the time the deeds were executed.”

Third: That the judgment rendered by the court is wholly unsupported by the evidence, in that there is no evidence whatever of an agreement on the part of defendants to pay the company for the lots in controversy any consideration whatever other than the amount found by the court to have been paid at the time the deeds covering the lots were executed.

The judgment of the court established the validity of the deeds under which appellants claim title to the lots in controversy, and found, as a fact, that appellant J. T. Patterson paid the company the sum of $150 for each lot at the time the deeds were executed, and that there was an unpaid balance of $350 due on each of the lots. The vice president of the company had full authority to execute deeds in behalf of the company, and it was the custom of Porterfield, as vice president, and later of Talbot, in the same capacity, to do so.

J. T. Patterson testified that he was sales manager of appellee company from March 20, 1911, until after execution of two deeds in question; that he purchased lot 20 from W. O. Porterfield, vice president, and A. H. S. Talbot, general manager, of appellee company, for cash, consideration of $150, which was charged to bis account on the books of the company; that lot 19 was bought from Mr. Talbot, who was vice president and general manager of the company at that time, for a cash consideration of $150, which was likewise charged to his account; that Talbot had full charge of the office and business of the company, and that the company owed witness at the time from $700 to $800; and that the consideration for these lots was actually credited on his indebtedness. There was no evidence whatever of any agreement upon appellant’s part to pay more than $150 for each lot.

The foregoing assignments are each sustained. There is no express agreement alleged upon which the court could base a finding and judgment that there was a balance of $350 due on the purchase price of each of the lots, nor are any facts alleged from which such an agreement might be implied. The mere fact that the officers of the company had conveyed the property for a consideration less than that at which they were authorized to sell for certainly would not imply an agreement upon the part of the vendee to pay the difference between the reasonable value of the lots and that actually paid. It seems this was the theory upon which the court entered judgment. The pleadings themselves are wholly insufficient to support the judgment, and the evidence likewise, as there is no evidence of an express or an implied agreement upon Patterson’s part to pay more than the amount which he did pay.

Reversed and remanded.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CHURCHILL.
    (No. 67021.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 20, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Appeal and Error (§ 547) — Instetjctions —Review—Bill op. Exceptions — Necessity.
    Error cannot be successfully assigned on the court’s refusal to submit certain special issues to the jury, where no bill of exceptions was taken to the court’s charge or to its refusal to give defendant’s requests.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2482; Dec. Dig. § 547.]
    2. CabeieRS (§§ 318, 346) — Transportation op Passengers — Person Accompanying Passenger to Train — Injuries — Negligence-Contributory Negligence — Question por Jury.
    In an action for injuries to plaintiff while endeavoring to alight from a vestibuled passenger train as it was leaving a station to which plaintiff had gone to assist his mother and her other children aboard the train, by his being struck by a shed support as he swung out from the wrong side of the train in an endeavor to alight after the train had started, and in the presence of the conductor, evidence held to sustain a finding of negligence on the part of the ' conductor and of absence of contributory negligence on plaintiff’s part.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314, 1401; Dee. Dig. §§ 318, 346.]
    3. Carriers (§ 304) — Transportation op Passengers — Premature Starting op Train.
    Where plaintiff, to the knowledge of defendant’s conductor in charge of a vestibuled train, boarded the train to assist his mother and her other children to a seat therein, it was the conductor’s duty to hold the train a reasonable time to allow plaintiff to perform such duty and to disembark from the train, and, on discovering that the train had started before plaintiff had time to'alight, the conductor was bound to stop the train and permit plaintiff to disembark.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. § 304.]
    4. Carriers (§ 333) — Injury to Licensees— Assumed Risk.
    Where plaintiff boarded a vestibuled passenger train to assist his mother and her other children to a seat to the knowledge of the conductor, and he, having negligently started the train before plaintiff could perform such service and alight, refused on request to open the vestibule and permit plaintiff to get off on the right side of the train, whereupon plaintiff rushed to the opposite side, opened the vestibule, swung out, and was struck by a steel depot roof support, he did not assume the risk in attempting to alight from the train at the time, place, and manner he did.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1385,1386, 1388-1397; Dec. Dig. § 333.]
    5. Appeal and Error (§ 1050) — Reception oe Evidence — Prejudice.
    Where plaintiff, having gone on a vesti-buled train to assist his mother and her other children to a seat, attempted to alight after the train had started from the wrong side of the train, in the presence of the conductor, and there was evidence that plaintiff did not know of the proximity to the car of posts supporting the station roof or of their existence at the place, and that the conductor saw plaintiff while opening the vestibule door and attempting to alight, the issue of discovered peril not having been submitted to the jury, defendant was no.t prejudiced by the court’s allowing the conductor to answer in the affirmative a question whether he knew, when he saw plaintiff attempting to open the door, that it would be dangerous for him to alight from that side of the train.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Galveston County; Edward F. Harris, Special Judge.
    Action by S. A. Churchill against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood and Jno. T. Garrison, all of Houston, and John L. Dar-rouzet, of Galveston, for appellant. S. L. Staples, of Smithville, and Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

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

   McMEANS, J.

Plaintiff, S. A. Churchill, brought this suit against the defendant, Missouri, Kansas & Texas Railway Company of Texas, to recover damages sustained by bim' on account of the negligence of the defendant. He alleged, in substance, that he accompanied his mother and her two children to the Union Depot in the city of Galveston, where they intended to take passage on defendant’s passenger train to their home in Smithville, and that he entered the train with his mother and her two children to assist them with their luggage and in finding seats, first apprising the conductor of this fact and the fact that he did not intend to become a passenger, and that, while he was so engaged, the conductor, without warning or notice to him, started said train in motion, and before he could get to the door of the car to alight from the train the conductor shut the vestibule door through which he had entered, and that, although the conductor was shutting the vestibule door when plaintiff first asked him to let him off, he continued to shut, and did thereafter finish shutting, the door, and that, although he requested the conductor to open the door and let him out, he (the conductor) failed and refused to do so and failed and refused to stop the train and let him off, but stood on the trapdoor of the vestibule, thus barring plaintiff himself from opening the door; that the momentum of the train was growing greater all the time; that in order to disembark, and not be carried away, he went on the platform of the car next to the one he had entered, opened the trapdoor and vestibule door on the opposite side of the train from which he entered, and, getting down on the car steps, he grasped the handholds on each side, and leaned back to see if he could get off in safety; and that just as he leaned back to look his head came .in contact with an iron support of the shed under which the train had been standing, knocking him from the steps, and inflicting the injuries for which he sued. The grounds of negligence alleged were in permitting, the train to start while plaintiff was inside the car without affording him a reasonable time to assist said passengers and alight therefrom, and without giving him notice that the train was going to start, in either of which events he could have alighted with safety; in closing the vestibule door while plaintiff was demanding the conductor to permit him to pass through it; and in using a track located in such close proximity to the iron support of the shed as to make the support dangerous to a person who might leave the train on the side upon which it was situated.

Upon the request of appellant the case was submitted to a jury upon special issues in the -form of interrogatories, the issues submitted being as follows:

“ (1) Did the plaintiff, before the train started, inform the conductor of the fact that plaintiff was not going on the train to Smithville?

• “(2) Was the train held before the starting a reasonable length of time to allow plaintiff to get off the train?

“(3) Did plaintiff wait a reasonable length of time to allow the train to be stopped, after plaintiff called out to the conductor that plaintiff wanted to be let off the train?

“(4) Was the defendant guilty of negligence toward plaintiff in using the track as close to the pillar or post as it was used?

“(5) Was plaintiff guilty of contributory negligence in his conduct after the train started?”

The sixth interrogatory propounded was as to what sum of money would reasonably and fairly compensate plaintiff for the injuries sustained by him, laying down in that connection definite rules to guide the jury in arriving at the measure of his damages.’

The jury answered the first, third, and fourth questions in the affirmative, and the second and fifth in the negative, and in answer to the sixth found that a fair and reasonable compensation to plaintiff for the injuries suffered by him was $7,000. Upon the return of the verdict the court required a remittutur by plaintiff of $2,000, which was filed and entered, and thereupon the court rendered judgment in Ms favor for $5,000, from which the defendant, after its motion for a new trial had been overruled, has appealed.

Appellant’s first assignment of error assails the action of the court in submitting interrogatory No. 4 for the determination of the jury, to wit:

“Was the defendant guilty of negligence toward plaintiff in using the track as close to the pillar or post as it was used?”

The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth assignments are predicated upon the refusal of the court to submit to the jury special issues requested by defendant. No bill of exceptions was taken to the charge of the court or to the court’s refusal to give defendant’s special charges, and for this reason appellee objects to the consideration of these assignments.

In St. Louis, Southwestern Ry. v. Wadsack, 166 S. W. 42, the Texarkana Court of Civil Appeals had under consideration the question whether assignments of error based upon objections to the court’s charge or predicated upon the refusal of the court to give special charges requested by the appellant, to which action bills of exception were not taken in the trial court and allowed and signed by the judge, could be considered by the appellate court. In a comprehensive opinion written by Associate Justice Hodges the following conclusion'is reached:

“Heretofore the rulings of the court in giving and refusing charges was regarded as excepted to in every instance, without any express reservations by bill or otherwise. The effect of the amendment to article 2061 is to place the rulings of the court in giving or refusing charges in the same category with other rulings not appearing of record as to the formalities required for their consideration on appeal. Appellate courts can now no more review the action of the trial court in giving or refusing charges than they can the rulings admitting or excluding testimony, without proper bills of exception. It also follows that bills of exception relating to the giving or refusing of charges must conform to the requirements provided by statute for bills of exception generally,”.

See, also, Novelty Import Co. v. Griffin, 168 S. W. 85.

Tlie court in the cases cited properly, we think, refused to consider the assignments. We will not pause to set out here the reasons for thus deciding, and content ourselves by referring therefore to the cases referred to. The assignments cannot be considered.

Appellant’s second, third, and fourth assignments challenge in different ways the sufficiency of the evidence to justify the verdict and judgment. This requires a review of the facts.

Appellee formerly lived at Smithville, a town on appellant’s railway line, but at the time of his injury, and for some time prior thereto, lived in the city of Galveston, and was engaged as switchman on another railroad entering that city. His mother and her other children resided in Smithville. Prior to April 8, 1913, plaintiff’s mother ' and two of her children visited plaintiff in Galveston, and on that date started to return to their home. Plaintiff accompanied them to the Union Station in Galveston, from which all trains, including . defendant’s, took their departure, to assist them with their grips, bundles, and packages, of which there were several, and a short time before the time for departure of the train he, accompanying them, carrying a large grip and a box in which there was a small dog, entered the gate and proceeded to the ear door through which they intended to enter the train. Here plaintiff spoke to the conductor, one Tabor, with whom he was well acquainted, having been his neighbor when both lived in Smithville; plaintiff’s mother having known him for 17 years. Tabor asked plaintiff if he was going home, meaning Smithville, to which the latter replied that he was not; that he was then living in Galveston; and that he was there only for the purpose of assisting his mother and the children on the train. Plaintiff, pri- or to the time of this conversation, had set the grip he was carrying on the ground, and had gone down to the engine and procured the fireman to carry the dog to Smithville, and upon his return proceeded to assist his mother and the children on the train, he himself carrying the large grip, and after they were in the coach began arranging their seats and baggage, but before he- had accomplished this the conductor gave the signal for starting the train, and the train began to move out. Hastily kissing his mother good-bye, the plaintiff walked rapidly toward th'e end of the coach from which he had entered, and just as he reached the door the conductor was closing the vestibule door through which plaintiff expected to make his exit. He at once called to the conductor to stop and to open the door and let him off, but the conductor, although he heard him, did not reply, nor did he heed plaintiff’s requests, but took his stand on the trapdoor, which had to be raised before the vestibule door could be opened. At this juncture a man with whom the conductor had been talking, and who was standing in the gangway when plaintiff approached, stepped on the platform of the car just in advance, and onto the trapdoor on the left. Plaiptiff, seeing that the conductor was making no effort to stop the train or to open the door and let him off, passed to the platform of the car next in front, and as both doors, on the left were blocked, one by the conductor and the other by the man, he lifted the trapdoor and opened the vestibule door on the right, and, going down on the steps, he caught the handholds on each side, preparatory to swinging off, and leaned backward to see if he could safely get off at that place, and just as he did this his head came in contact with an iron support of the shed under which the train had been standing and was then moving, and which was 13 inches from the side of the coach, knocking him from the steps and to the ground, and inflicting damage upon him to the amount of the judgment. The train was what is known as a vestibule train, and all the vestibule doors on the right-hand side had been kept closed, while those on the left had been opened to allow the entrance of passengers from that side. It was usual and customary to leave the doors on the left side open until the train reached the registry station, some distance down in the yards, where the trains usually stopped, but plaintiff, seeing'the conductor closing the doors, supposed the train would not stop there, and would not stop at all until it reached Forty-Second street, or the station of Oyster, down the Island; hence .his anxiety to get off at the time and place he attempted it. While he knew the shed was held up by supports, he did not know of the position of the support that hit him, nor that any of them were close enough to the car to strike him while making his descent from the train, but the defendant did. The conductor observed plaintiff opening the vestibule door on the right, but said nothing, and did nothing to stop him.

There was some conflict in the evidence, but we have stated only the facts which most strongly support the plaintiff’s case; for, if these warranted the verdict and judgment in his favor, the case must stand, even though there may have been evidence upon which the jury might have found against him.

Our conclusion, based upon the foregoing facts, is that the evidence was sufficient to support the finding of the jury that the appellant was guilty of negligence toward plaintiff which proximately caused his injuries, in failing to hold the train a reasonable time to allow him to seat his mother and her children and to disembark therefrom, and in failing to stop the train and let him off when the conductor discovered that he had not gotten off, and that in the circumstances detailed plaintiff was not guilty of contributory negligence, nor did he assume the risk of injury in attempting to alight from the train at the time, place, and manner he did. The assignments must therefore be overruled.

While the conductor, Tabor, was testifying for the defendant, he was asked the following question by plaintiffs counsel: “You knew' when you saw the plaintiff attempting to open the trapdoor to the right that it would be dangerous for him to alight on that side, didn’t you?” To which the witness answered, “Yes.”

The question and answer were objected to by defendant upon the grounds that plaintiff had not sought to recover on the ground of discovered peril; that plaintiff knew the condition of the posts and shed; and that the conductor did not see plaintiff when he was opening the trapdoor or attempting to alight. The assignment cannot be sustained. There was proof that the plaintiff did not know the proximity of the posts to the car or of its existence at this place, and that the conductor did see plaintiff while he was opening the door and attempting to alight. The issue of discovered peril was not submitted as one of the special issues in the case, and the jury could not have based the findings they made upon the testimony objected to. If the admission .of the testimony was error, it could have had no possible influence upon the jury in determining the issues submitted to them by the court’s charge.

The • remaining assignments complain of the verdict as being excessive. It is unnecessary to state in detail the extent of the' injuries which the evidence shows plaintiff suffered. We have carefully considered the evidence upon this issue, and are of the opinion that the verdict, as reduced by the remittitur required by the lower court, is not excessive.

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.'

Affirmed.


text:
    CONN et al. v. HOUSTON OIL CO. OF TEXAS.
    (No. 6680.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 3, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Appeal and Error (§ 548) — Objections to Charge — Review—Bill oe Exceptions —Necessity.
    An objection to a charge or any part thereof will not be reviewed by the appellate court, unless the objection is preserved by a proper bill of exceptions incorporated in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    2. Vendor and Purchaser (§ 232) — Bona Fide Purchasers — Constructive Notice-Prior Unrecorded Deed — Possession.
    Where, when a tram company purchased certain land in controversy from the heirs of D., one L. was living on and had possession of 86 acres, holding under an unrecorded deed in which the 86 acres was described by metes and bounds, but it was not shown that the tram company had knowledge of possession of any part of the tract other than that occupied by L., his possession was not constructive notice to the tram company of a prior unrecorded deed to the balance of the tract, nor did the fact that the’ deed under which L. was holding was unrecorded enlarge the effect of his possession as notice.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.]
    3. Vendor and Purchaser (§ 238) — 'Bona Fide Purchaser — Knowledge oe Subsequent Grantee.
    Where plaintiff claimed title under a tram company, which was an innocent purchaser for value without notice of any superior outstanding title, plaintiff acquired the tram company’s rights, and it was immaterial that at the time it purchased it had knowledge of facts which, if possessed by the tram company, would have charged it with knowledge of a -prior conveyance by one of its prior grantors.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 580-582; Deo. Dig. § 238.]
    4. Aureal and Error (§ 564) — Record—Filing-Statement oe Facts — Time.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073, allows 30 days after adjournment in which to file a statement of facts and bills of exception, and provides that on good cause shown the time may be extended, but not so as to delay the filing of the statement, together with the transcript of the record, in the appellate court within the time prescribed by law, subject to a proviso that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as filed in time. Held that, under such proviso, a statement of facts filed before the transcript is required by law to be filed in the appellate court is filed in time, though not filed within the time specified by the trial court for filing the same as extended.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig.' § 564.]
    5. Exceptions, Bill oe (§ 42) — Filing — Time — “Formalities.”
    The time for filing bills of exception relates to formalities in bringing a case to the appellate court for revision within Court of Civil Appeals rule 8 (142 S. W. xi), providing that all motions relating to informalities in the manner of bringing a ease into court shall be filed and entered by the clerk on the motion docket, within 30 days after the filing of the transcript' in the Court of Civil Appeals, or the objection is waived, if it can be waived by the party; and hence failure to file bills of exception in time was waived, where no motion to strike the same was filed within the time prescribed.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 72; Dec. Dig. § 42.]
    6. Vendor and Purchaser (§ 243) — Outstanding Title — Notice—Evidence.
    On an issue as to whether a tram .company under which plaintiff claimed was an innocent purchaser without notice of an outstanding title in having acquired title from certain heirs in December, 1892, February, 1893, and February, 1895, evidence that, in 1893, 1894, or 1895, the tram company’s manager expressed a fear of litigation with reference to the land and ordered a removal of the timber therefrom as quickly as possible, and that there was general talk among its employes indicating that the company did not have a good title to the land, was inadmissible.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 606-608; Dec. Dig'. I 243.]
    7. Appeal and Error (§ 301) — Errors not Presented in Motion por New Trial — Errors Apparent oe Record — “Apparent.”
    The term “apparent,” as used in the clause “errors of law apparent on the face of the record,” means clear or manifest to the understanding ; plain; obvious; appearing to the eye or mind — not including errors which can be ascertained by looking into the record and considering the evidence; and hence assignments in an action to recover land that the judgment was contrary to law and without evidence to support it, in that it awarded to defendants three forty-seconds only of the land in controversy, when it should have awarded eleven fifty-sixths, there being no evidence that a tram company under which plaintiff claimed paid value in good faith and without notice of the adverse claim of those under whom defendants claimed, etc.,' and that the court erre'd in granting a peremptory instruction on the issue of purchase in good faith by the tram company, on the ground that there was no evidence that it was an innocent purchaser for value, did not present errors of law apparent on the face of the record, and could not be reviewed, where they were not presented as grounds for new trial.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.

    For other definitions, see Words and Phrases, First and Second Series, Apparent.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Suit by the Houston Oil Company of Texas against R. C. Conn and others. Judgment for complainant, and defendants appeal.
    Affirmed.
    John B. Warren, of Houston, for appellants. Hightower, Orgain & Butler, of Beaumont, H. O. Head, of Sherman, and Parker & Kennerly, of Houston, for appellee.

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

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

   McMEANS, J.

The Houston Oil Company of Texas brought this suit against R. C. Conn and John B. Warren to recover 1,051 acres of land in Newton county, part of the Lewis Donaho one-half league and labor survey. The defendants answered by plea of not guilty,* and by cross-bill sought to recover the land from the plaintiff. In answer to the cross-bill the plaintiff pleaded not guilty. The ease was submitted to a jury upon special issues, and upon return of the verdict a judgment was rendered and entered in favor of plaintiff, from which the defendants, after their motion for a new trial had been overruled, have appealed.

Plaintiff deraigned title as follows: (1) Patent from the state of Texas to Lewis Donaho, for one-half league and labor, dated December 12, 1845; (2) deeds from the heirs of Lewis Donaho, some of them acting through their duly authorized agents and attorneys in fact, to the Cow Creek Tram Company, dated respectively December 23, 1802, February 20, 1893, and February 18, 1895; (3) deed from the Cow Creek Tram Company to George Adams; (4) deed from George Adams to the plaintiff, Houston Oil Company of Texas.

The defendants deraigned title through a deed from Lewis Donaho to Wm. McFarland, conveying, the entire survey. This deed was not produced on the trial, nor was it shown that it had ever been recorded, but its execution was proven by circumstances only, and was shown to have been executed at a date long anterior to the date of the deed from the heirs of Lewis Donaho to the Cow Creek Tram Company. Defendants further proved a regular, consecutive chain of transfers from Wm. McFarland ’down to themselves.

From the foregoing statement it will be observed that the defendants owned the senior title, which was superior to the junior title owned by the plaintiff, provided that, at the time the Cow Creek Tram Company purchased the land in controversy from the heirs of Lewis Donaho, it had notice of the execution of the deed by Lewis Donaho to Wm. McFarland, or had knowledge of facts that would have put a person of ordinary prudence upon inquiry, which, if diligently pursued, would have led to the discovery of its execution. It is apparent from the foregoing that one of the main issues upon the trial was whether the Cow Creek Tram Company was a purchaser for value without notice of the execution of the deed by Lewis Donaho to Wm. McFarland. If it was not, the judgment should have been for defendants ; if it was, then the judgment for plaintiff was properly rendered, regardless of whether the Cow Creek Tram Company or plaintiff, in purchasing from Adams, had knowledge of the execution of the senior deed, or were in possession of facts that would put a person of ordinary prudence on inquiry. The undisputed facts show that Adams was acting for the Cow Creek Tram Company in purchasing the land from the heirs of Lewis Donaho, and any notice he had at that time of the execution of the senior deed, or other facts to put a person of ordinary prudence on inquiry, was chargeable to the tram company.

The seventh special issue submitted by the court to the jury is as follows:

“Question No. 7: Was George Adams or the Cow Creek Tram Company an innocent purchaser for value in good faith of the land purchased from the heirs of Lewis Donaho of 1,051 acres? You will answer this question, ‘Yes.’”

The jury, in obedience to the court’s command answered this question in the affirmative.

The peremptory charge on this issue is assailed by defendants’ first assignment of error; their contention being that the question was one for the jury to determine, since there was evidence introduced tending to show that George Adams, the representative of the tram company, had notice of the defendants’ claim of title and of the claim of title of those under whom they hold.

We are met in limine by the objection of appellee to the consideration of this assignment, on the ground that this charge was not excepted to before it was submitted to the jury, and there was no exception to the ■ action of the court in giving it preserved by a bill of exceptions. It is now too well settled to require further discussion that an objection to a charge, or any part thereof, will not be reviewed by the appellate court, unless the objection is preserved by a proper bill of exceptions incorporated in the record. Railway v. Wadsack, 166 S. W. 42; Railway v. Brown, 168 S. W. 867; Railway v. Mallard, 168 S. W. 994; Ford Motor Co. v. Freeman, 168 S. W. 82; Saunders v. Thut, 165 S. W. 554; Railway v Galloway, 165 S. W. 546; Johnson v. Hoover, 165 S. W 900; Roberts v. Laney, 165 S. W 116; Life Association v. Rhoderick, 164 S. W. 1068; Street Railway v. Barnes, 168 S. W. 992; Railway v. Churchill, 171 S. W. 517, decided by this court October 15, 1914. But does this rule apply to a peremptory instruction which takes from the jury the right to pass upon the facts? We are inclined to the opinion that it does not, but applies only to those charges which submit to the jury controverted fact issues raised by the evidence.

However that may be, we are of the opinion that the undisputed evidence introduced upon the trial was sufficient to show want of notice to the Cow Creek Tram Company, at the time of its purchase, of the execution of the deed by Lewis 'Donaho to Wm. McFarland conveying the entire Lewis Donaho survey, which deed, as before stated, was proved by circumstances only. We will not set out in detail the evidence which appellants contend tended to prove notice, but will content ourselves with the statement that we have carefully examined the evidence ' relied upon by appellants in that regard, and find the same is insufficient to raise the issue. The only fact tending even remotely to show notice was the proof that, at the time of the purchase of the 1,051 acres in controversy by the trani company from the heirs of Lewis Donaho, one W. K. Landrum was living upon, and had possession of, 86 acres of it, holding under a deed which was not then recorded, and in which the 86 acres was described by metes and bounds, and certain other parties had other portions of the Donaho survey in their possession, but, with the exception of Land-rum, the possession of said other persons of different parts of the survey did not extend to or upon the 1,051 acres in suit. The evidence is uncontradicted that the Gow Creek Tram Company paid full valué for the land. It was not shown that George Adams, who represented the tram company in making the purchase, and who died several years before the trial, had knowledge of possession of any part of the Donaho, other than that of W. K. Landrum of 86 acres of the tract involved in this suit, and this fact is shown only by the circumstances of Landrum’s possession. The 86 acres is not involved in this appeal; it not having been awarded to either party. The possession of land not included in the deed to the tram company, it not having been shown that the tram company knew of such possession at the time it purchased, could not be constructive notice affecting the title to any land beyond that possession. Hayward Lumber Co. v. Bonner, 56 Tex. Civ. App. 208, 120 S. W. 578. Landrum’s possession, whether the tram company had either actual or constructive notice of it, was not notice of claim to any part of the tract in controversy which he did not claim; and from the fact that the deed under which he was holding was not recorded such want of record could not enlarge the effect of his possession as notice. Wright v. Lassiter, 71 Tex. 640, 10 S. W. 296.

consideration of the foregoing, we are of the opinion that the Cow Creek Tram Company was shown by the undisputed proof to be a purchaser for value without notice of any superior outstanding title to the land in controversy, and that the court did not err in giving the peremptory instruction complained of. As the Cow Creek Tram Com-Comwas an innocent purchaser for value, it is immaterial whether at the time the ap-ap-Houston Oil Company, purchased the land it had knowledge of facts which, if possessed by the tram company at the time it purchased, would have charged it with knowledge of the execution of the deed from Lewis Donaho to Wm. McFarland. lilies Illies Frerichs, 11 Tex. Civ. App. 575, 32 S. W. 917.

If we are correct in the views above stated, then the judgment of the court below must be affirmed, unless some error prejudicial to appellants was made by the court iu the rejection of the testimony offered by them, which is complained of in the eighth and ninth assignments. The testimony in question was that of the witness Myers, who was an employe - of the tram company as locomotive engineer, and who, had he been permitted, would have- testified that about the year 1893 or 1894 or 1895, when the tram company was cutting timber on the land in controversy, which was shown to be after its purchase, he was given orders by George Adams, the manager of said company, to hurry up and get the timber off the tract, as they might have litigation over it, and, if he saw anybody trying to stop him while running the train on the tram, to not stop,, but to pull the train and timber off of that tract as quickly as possible; also the testimony of the witness Cully, an employé of the tram company, to the effect that it was general talk among the employés of the Cow Creek Tram Company, when the timber was being removed from the land, that the company was in a rush to get the timber off for fear of litigation. To tlie rejection of this testimony appellants duly preserved bills of exception.

Appellee objects to the consideration of the assignments upon the ground that neither the statement of facts nor bills of exception in this case was filed in the trial court within the time fixed by law, nor within the time allowed by the order of the court, which extended the time of filing 30 days after the expiration of the time the laV prescribed. It appears that the trial court made an order allowing appellants 30 days after the expiration of the time given by law for the filing of statements of fact and bills of exception in which to file a statement of facts and bills of exception, but that neither the statement of facts nor bills of exception was filed until more than 30 days after the time so extended by the court’s order had expired.

Article 2073, Vernon’s Sayles’ Ann. Civ St. 1914, prescribes that the parties to a suit shall have 30 days after the day of adjournment of court in which to prepare and file a statement of facts and bills of. exception, and provides that:

“Upon good cause shown, the judge trying the cause may extend the time in which to file a statement of facts and bills of exception: Provided, that the court trying such cause shall have the power in term time or vacation, upon the application of either party, for good cause to extend the several times as hereinbefore provided for the preparation and filing of the statement of facts and bills of exception, but the same shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the appellate court within the time prescribed by law.”

The article concludes with the following proviso:

“Provided that any statement of facts filed before the time for filing the transcript in the appellate court expires, shall be considered as having been filed within time allowed by law for filing same.”

This last proviso is explicit, and must be given the construction which its clear language demands, and that is that a statement of facts is filed in time if filed at a date before the transcript is required by law to be filed in the appellate court. This is not a new question in this state. Criswell v. Robbins, 152 S. W. 210; Witherspoon v. Crawford, 153 S. W. 633.

We cannot sustain appellee’s contention that the statement of facts was not filed within the time required by law.

But what of the bills of exception? In Criswell v. Robbins, supra, the court, after referring to the last proviso of article 2073, above copied, says:

“But that provision would not lend any aid to the bills of exception, * *. * because they are not mentioned in the sweeping provision as to statements of facts. The bills of exceptions are still under the law as to extensions of time, as . is apparent from the language of the law of 1911. * * * It follows that, although under the law of 1911 we are compelled to consider the statement of facts, the bills of exceptions cannot be considered because filed out of time.”

We think the conclusion thus stated is sound in the abstract, but that it has no application to the bills of exception now under discussion, for the following reasons: The time of filing of bills of exception relates to formalities in bringing a case to the appellate court for revision. Rule 8 (142 S. W. xi), prescribed for the government of Courts of Civil Appeals, provides:

“All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the, transcript in the Court of Civil Appeals, oth-' erwise the objection shall be considered as waived, if it can be waived by the party.”

Under this rule an objection to the bills of exception on account of the informalities complained of, to be available to appellee, must have been presented by a motion to this court filed and docketed within 30 days after the transcript was filed, and as this was not done, and as the informality was one that could be waived, this court is not at liberty to disregard them.

Adverting now to the assignments, appellants contend that the testimony referred to 'was admissible as tending to prove that the Cow Creek Tram Company was not an innocent purchaser. We do not think the contention sound. The time mentioned by the witnesses at which the fear of litigation was expressed by Adams, and at the time of the general talk among the employes mentioned by the witness Cully, was in 1893, 1894, or 1895, and not more definitely stated. All this was subsequent to the date of the tram company’s purchase. The source of the threatened litigation was not shown, nor any other fact that would indicate that the statement of Adams or the general talk was induced by any notice to Adams or the company of an outstanding superior title at the time the company bought the land. At most, the testimony could have only raised a surmise or suspicion. The assignments are overruled.

The only other assignments of error that we feel called upon to notice are the eleventh and twelfth. The .eleventh is as follows:

“The judgment is contrary to law and without evidence to support it, in this: The judgment awards to defendants three forty-seconds only of the land in controversy, and it should have been eleven fifty-sixths; there being no evidence that the Cow Creek Tram Company paid value, in good faith, and without notice of the adverse claim of title of those under whom the defendants claimed, as to the undivided interest in said land purchased by the tram company from [naming.certain heirs of Lewis Donaho] which parties, if they had any claim, conveyed by their deeds a one-eighth interest in the land to said tram company.”

The twelfth assignment complains of the peremptory instruction on the issue of the purchase in good faith by the tram company, on the ground that there was no evidence that the tram company was an innocent purchaser for value from certain other heirs of Lewis Donaho.

The matters complained of in these assignments were not presented by defendants in their motion for new trial in the court below, but to cure the effect of this omission, are presented as pointing out fundamental error apparent upon the face of the record.

To determine whether those assignments point out error would require an investigation of all the evidence bearing upon the matter to which they relate. We do not understand that the assignments are such as point out “error in law * * * apparent on the face of the record,” as this language is used in article 1607, Revised Statutes 1911. This language was construed by our Supreme Court in- Houston Oil Co. v. Kimball, 103 Tex. 104, 122 S. W. 533, 124 S. W. 85, and it is there said:

“Webster defines the word ‘apparent’ thus: ‘Clear’, or manifest to the understanding'; plain; * * * obvious; appearing to the eye or mind.’ This does not mean that an error which can be ascertained by looking- into the record and considering the evidence may be considered without any assignment, for that would include every error which can be considered at all. Nothing can be considered as an error which cannot be made apparent by an examination of the record; therefore the language of the. statute must be given that construction which will make it consistent with its requirements in other respects.”

Tested by the rule thus stated, we are of the opinion that the assignments do not point out error apparent on the face of the record, and therefore, because the alleged error was not called to the attention of the ' trial court in the motion for a new trial, the assignments cannot be considered.

We are of the opinion that the judgment of the court below should bé affirmed, and it has been so ordered.

Affirmed.