author: DUNKLIN, J. CONNER, C. J.

text:
    WEBB et al. v. REYNOLDS.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 5, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Judgment (§ 654) — Final Judgment — What Constitutes.
    Where the order dismissing the petition, made by the judge who first tried the action, was not final because not disposing of all the parties, it must be treated as an interlocutory order which could be set aside by a subsequent judge who would have the same powers as if the original judge was sitting;, and therefore such dismissal lacks the conclusiveness of a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1165; Dec. Dig. § 654.]
    2. Appeal and Error (§ 1074) — Review — Haemless Eeeoe.
    Where the judge who first tried the action dismissed the complaint, the failure of a third judge who entertained an amended complaint, substantially the same, to set aside the dismissal was not reversible error, for the rendering of a judgment in favor of the plaintiff was in- effect a setting aside of such order; the same being true of an interlocutory order entered by a second judge which required the addition of other parties defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4248-4252; Dec. Dig. § 1074.]
    3.'Judges (§ 16) — Special Judges — Mode op Selection.
    While Rev. Civ. St. 1911, art. 1676, provides that, whenever a circuit judge is disqualified, he shall so certify to the Governor, who shall designate some adjoining district judge to exchange and try such Case, the local bar, under article 1678, providing that whenever the judge of the court shall be absent or unable or unwilling to hold court the practicing lawyers of such court may elect a special judge, may select a special judge where the Governor fails to designate a district judge to try the case in which the regular district judge was disqualified.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 46, 53-59; Dec. Dig. § 16.]
    4. Judges (§ 16) — Special Judges — Selection — Peesons Entitled to Vote.
    Under Rev. Civ. St. 1911, art. 1678, providing that the practicing lawyers of a court may, where the district judge is unable or unwilling to act, select one of their number as special judge, members from adjoining counties who practice in that district and are present have the same rights to vote as the resident lawyers.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 46, 53-59; Dee. Dig. § 16.]
    5. Judges (§ 16) — Special Judges — Selection.
    Where a member of the bar is selected by a majority of the practicing lawyers, as a special judge, the fact that he voted for himself will not invalidate the election.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 46, 53-59; Dec. Dig. § 16.]
    6. Officers (§ 30) — Special Judges — Eligibility — Holding Other Office.
    A member of the bar, who is also a member of the Legislature, is not thereby disqualified from acting as special judge in case of the disability or disqualification of the regular judge.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 37-43; Dec. Dig. § 3Ó.]
    7. Bills and Notes (§ 485) — Actions — FLEADINGy-OWNERSHIP.
    The petition, in an action upon a vendor’s lien note, declared that the note was executed by defendants as a part of the consideration for the tract of land conveyed to them by the payee, and that it was indorsed by the administrator of the payee to one S., without recourse, who assigned it to plaintiff; that by an agreement between the administrator of the payee and the defendant the note in controversy was deposited in a bank to be held in trust until the amount of an alleged shortage in the land could be ascertained, whereupon the note should be credited therefor. "The answer set up the agreement mentioned, although there was a special answer duly verified alleging that the assignment by the administrator was made to defeat defendant’s rights against the administrator who was appointed in a foreign state and had not qualified under the laws of Texas and so could not sue in the courts of that state. Held that, notwithstanding Rev. Civ. St. 1911, art. 3480, providing that no sale of any property belonging to an estate shall be made without an order of court, and despite the verified denial of the bona tides of the assignment of the note, proof by plaintiff of the execution of the note, coupled with the introduction of the note itself in evidence bearing the assignments, is in view of article 1906, requiring denials of the execution of any written instrument upon which a pleading is' founded to be verified, sufficient to show a transfer of all title of the original payee to the indorsee of the administrator; the answer not denying the execution of the written instrument whereby defendant recognized the administrator’s title.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1542-1554; Dec. Dig. § 485.]
    8. Appeal and Error (§ 877) — Persons Entitled to Allege Error.
    Where plaintiff’s indorser was made a party defendant to the suit and failed to appeal, the makers of the note could not complain of the judgment finding that the indorser had transferred his interest to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    Conner, C. J., dissenting.
    Appeal from District Court, Shackelford County; R. B. Humphrey, Special Judge.
    Action by B. F. Reynolds against S. Webb and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.

      A. A. Clarke, J. A. King, and R. L. Allen, all of Albany, for appellants. B. F. Thorp, of Throckmorton, and Stephens & Miller, of Ft. Worth, for appellee.

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

   DUNKLIN, J.

S. Webb and L. H. Hill have appealed from a judgment in favor of B. F. Reynolds for the sum of $054.68 with foreclosure of vendor’s lien on certain land. The suit was upon a promissory note executed by appellants in favor of Laura G. H. Torrence as a part of the consideration for a tract of land conveyed to appellants by the payee and indorsed to W. H. Stevens without recourse by A. C. Hensley, “administrator of the estate of L. G. H. Torrence, deceased.” The note was one of a series of vendor’s lien notes executed by Webb and Hill to the payee mentioned, who contemporaneously therewith conveyed to the makers the land upon which a foreclosure was sought. B. F. Reynolds, the plaintiff in the case, alleged in his petition that he had acquired, the notes from the indorsee Stevens; that all of the notes of the series had been paid except the one in suit; that by agreement between Hensley, the administrator, and defendant S. Webb the note in controversy was deposited in the First National Bank of Albany to be held by the bank in trust until the amount of shortage claimed by Webb in the land conveyed should be determined and that when determined the note should be credited therefor. The alleged agreement was in writing, signed by the administrator, reciting that Webb had acquired all interest Hill owned in the land, and that since the date of the deed to Webb and Hill it had been discovered that the tract conveyed contained less than the 320 acres warranted by the vendor, and the agreement was made an exhibit to the petition.. This agreement further stipulated that no demand should be made for payment of the note in controversy until the amount of such shortage, if any, should be determined. Plaintiff alleged further that the administrator had on divers occasions endeavored to induce Webb, who is now the sole owner of the land, to ascertain the amount of shortage claimed by him and had offered to pay all expenses necessary to determine the boundary lines between the lands conveyed and other adjoining tracts, but that these offers had been refused by Webb, and that by such refusal he had breached the contract. It was further alleged in plaintiff’s petition that that agreement was entirely for the accommodation of defendants and without any consideration to support it; that the administrator did not know of any shortage in the land and did not believe that there was any. By supplemental petition filed subsequently to the answer of Webb and Hill, this plea of failure of consideration was repeated and duly verified by plaintiff.

To this petition defendants addressed four special exceptions: First, that it did not sufficiently appear from the petition that plaintiff was the owner of the note; second, that the petition contains a plea of failure of consideration of the contract attached thereto and that such plea was not verified as required by law; third, that the petition did not show that the note sued on was due; and, fourth, that the suit was premature in that the petition contained no allegation that the amount of shortage admitted in the contract to exist had ever been ascertained and contained no showing that it was the duty of defendant Webb to ascertain that shortage rather than the duty of the plaintiff. Defendants further pleaded specially that the shortage in the tract of land above mentioned was due to encroachments made upon the tract by adjoining landowners who-were claiming portions of it adversely. All of defendant’s exceptions were sustained by Hon. Cullen C. Higgins, judge of the Thirty-Ninth judicial district and acting judge of the Forty-Second judicial district, in which district this suit was pending; Hon. Thos. L. Blanton, the regular judge of the Forty-Second district, having recused himself on account of relation to some of the parties and having exchanged districts with Hon. Cullen C. Higgins. When these exceptions were sustained, plaintiff declined to amend, whereupon the suit was dismissed. Plaintiff then prosecuted an appeal to this court, which was dismissed for want of final judgment as the same failed to dispose of some of the parties made defendants in the suit. A mandate was then issued from this court announcing its decision. Thereafter plaintiff filed his first amended original petition, which was substantially to the same effect as his original petition. Appellants then filed a motion to dismiss the amended petition upon the ground that the order of Judge Higgins .sustaining the special exceptions had not been set aside but was still in full force and effect. This motion was presented to Judge Thomas, who was then presiding judge of the court, and was by said judge overruled, to which ruling appellants excepted. Thereupon defendants filed their first amended original answer urging the same exceptions to the amended original petition as had been formerly sustained and further excepting to the petition on the ground that plaintiff, having elected to stand upon the previous order sustaining the exceptions and having prosecuted an appeal therefrom, was bound by such election. These exceptions were presented to Judge Thomas, who reserved his decision thereon, appointed certain surveyors to survey the tract of land in controversy in order to ascertain the shortage claimed, and continued the case. until the following term. At the next succeeding term, Hon. J. H. Calhoun by agreement of the parties acted as judge of the court to try the case. Judge Calhoun then overruled all the exceptions contained, in the defendants’ first amended original answer except the one urging the premature institution of the suit and reserved his decision upon that. This judge also appointed surveyors to survey out the land looking to a determination of the amount of shortage and continued the suit until the following term. No report of any survey of the land by any of the surveyors appointed was ever filed. At the next succeeding term of the court the ease was tried before Hon. R. B. Humphrey, as special judge, and the judgment from, which this appeal is prosecuted was rendered upon that trial; Judge Humphrey having been elected as special judge by the lawyers present in the court. The record contains no formal order by any of the different judges who sat in the case specifically vacating the order made by Judge Higgins sustaining the four special exceptions noted already. Nor does the record contain any nunc pro tunc order showing a disposition of all the parties at the time the suit was dismissed by Judge Higgins.

It appears that counsel for appellants questioned the validity of the election of Judge Humphrey; that for this reason they refused to appear when the case was called for trial by him; and that no one appeared upon the trial but plaintiff and his counsel. Hence appellants did not invoke a ruling by Judge Humphrey upon any of the exceptions contained in their amended answer and introduced no evidence upon the trial and objected to none introduced by plaintiff; hut thereafter they filed a motion in arrest of the judgment upon grounds which will be hereinafter noted.

By the first assignment appellants insist that the former judgment from which the former appeal was prosecuted was in fact a final judgment, but that by an oversight of the draftsman the judgment entered omitted any disposition of the rights of some of the parties defendants; that after the termination of that appeal plaintiff failed to take any steps to procure an order nunc pro tune making said judgment final and thereby bound himself to an election to abide by the order of Judge Higgins sustaining the defendants’ special exceptions to plaintiff’s petition which has never been vacated. Predicated upon these contentions it is insisted that Judge Thomas erred in overruling defendants’ motion to dismiss plaintiff’s first amended original petition filed after the former appeal was dismissed, and that Judge Humphrey erred in overruling defendants’ motion in arrest of judgment, in which motion the same facts were urged as one of the grounds for arresting the judgment rendered by Judge Humphrey.

The record before us fails to show that when Judge Higgins entered the order of dismissal he in fact disposed of all.the parties to the suit; hence it does not appear that plaintiff could have procured the entry of a nunc pro tunc order such as mentioned above. In the absence of any showing that a final judgment had been rendered, no error appears in the actions of Judges Thomas and Humphrey in treating the order of Judge Higgins sustaining defendants’ special exceptions as interlocutory only, and we must so consider it here. Their orders must be considered from the same viewpoint as if Judge Higgins had continued to preside in the court and had made the orders himself. The former order of Judge Higgins being interlocutory only, there was nothing to prevent him or either of the succeeding judges from vacating it, and an unsuccessful appeal from that order could not estop plaintiff from afterwards invoking a vacation of it.

While Judge Humphrey did not specifically set aside that order, yet his failure so to do would not be reversible error, since the judgment rendered by him necessarily had that effect, and no assignment is presented challenging the correctness of his action in thus overruling appellants’ special exceptions to plaintiff’s petition upon the merits of those exceptions; the only point made being the alleged estoppel against plaintiff noted above. For the same reasons it was not reversible error for Judge Humphrey to proceed with the trial of the case on the merits without specifically setting aside the former interlocutory order of Judge Calhoun requiring plaintiff to make other parties defendant and appointing surveyors to survey the land and determine the amount of the alleged shortage in the tract.

Prior to the election of the special judge, Hon. Thomas L. Blanton, the regular judge of the court had certified to the Governor his disqualifications to try the case. Appellants insist that under those conditions the remedy provided by article 1676, Revised Civil Statutes 1911, for supplying another judge to try the case was exclusive, and that, even though the election of Judge Humphrey as • special judge of the court was a valid election and authorized him to transact othr er business, yet he' had no jurisdiction to try this suit.

Article 1676 reads: “Whenever any case or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby; but the judge presiding shall immediately certify that fact to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the Governor shall also notify both of said judges of such order; and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases, and, in case of sickness or other reasons rendering it impossible to exchange, then the parties or their counsel shall have the right to select or agree upon an, attorney of the court for the trial thereof.”

Article 1678 reads: “Whenever, on the day appointed for a term of the district court, or at any time before the expiration of the term, or the completion of all the business of tie court, the judge thereof shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no failure of the term, and no failure to proceed with the business of the court, but the practicing lawyers of such court present thereat may proceed to elect from among their number a special judge of said court, who shall proceed to hold said court and conduct the business thereof, and shall have all the power and authority of the judge of said court, during such continued absence or inability, and until the completion of any business begun before such special judge.”

We are of the opinion that, in the absence of an appointment by the Governor of some judge to exchange districts with Judge Blan-ton for the purpose of trying this case, a special judge elected under article 1678 would have authority to try it. The language of the latter article is clearly sufficiently comprehensive to confer upon the special judge that power, and under the circumstances stated we perceive no reason for holding otherwise.

Appellants further insist that the election of Judge -Humphrey as special judge was null and void, and hence that the judge so elected had no jurisdiction to hear and determine the suit. The following facts are urged as a basis for this contention: The special election was held over the protest of the lawyers who resided at Albany and who were present at the time of the election and who refused to participate therein. Practicing attorneys from two of the adjoining counties were present and participated in the election, and all of their votes were for the special judge, and they were the only votes cast. The fact that they were not resident attorneys we do not think would be any inhibition against their votes for the special judge, as the only qualification under the statute for the right to vote is that the lawyer voting must be a practicing lawyer of the court, and there is nothing in the record to show that those voting in the election were not practicing lawyers of that court.

We are of the opinion further that the fact that Judge Humphrey voted fo'r himself did not invalidate his election as all the votes cast were in his favor and as there is nothing in the statute which prohibited him from voting for himself.

It is insisted further that, as Judge Humphrey at the time of his election was a member of the Legislature, that fact served to disqualify him to act as special judge. Counsel recognize that the decisions of our Supreme Court in Roundtree v. Gilroy, 57 Tex. 176, Alsup v. Jordan, 69 Tex. 300, 6 S. W. 831, 5 Am. St Rep. 53, and State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 109, are seemingly against this contention, but they consider those decisions unsound and against public policy. The purport of their contention is that the acceptance by Judge Humphrey of the office of special judge necessarily vacated the office then held by him as a member of the Legislature of the state; that the vacation of a public office in that manner should not be left to implication but “should be open, aboveboard, and known to all people concerned.” However meritorious this contention might seem, the decisions cited preclude us from giving it effect.

By their sixth assignment appellants insist that the judgment is erroneous: First, because there is no evidence in the record showing that Laura G. H. Torrence, the payee of the note, is dead, nor of any order of any probate court appointing A. O. Hensley administrator of her estate, nor of any order of the probate court authorizing the administrator to sell or otherwise dispose of the note; and, second, because there is no evidence in the record showing any transfer of the note to plaintiff by W. H. Stevens, to whom the note appears to have been indorsed by A. O. Hensley, as administrator of the payee’s estate. Article 3480, Revised Statutes 1911, reads: “No sale of any property belonging to an estate shall be made by an executor or administrator without an order of the court authorizing the same.” A statement of facts is found in the record from which it appears that plaintiff introduced in evidence a deed of date December 17, 1906, conveying to defendants Webb and Hill the land alleged in plaintiff’s petition and reciting the purchase-money notes given therefor by defendant, one of which is the note in suit. There was also introduced in evidence the note alleged in plaintiff’s petition acknowledging a vendor’s lien on said land and bearing the indorsement: “Pay to the order of W. H. Stevens without recourse. A. G. Hensley, Administrator of the Estate of L. G. H. Torrence, Deceased.” The statement of facts further shows that the plaintiff testified that he was the owner of the note; that before he purchased it he was attorney for the administrator of the estate of L. G. H. Torrence, deceased; that while so representing his client he, as attorney for the administrator, repeatedly offered to institute suit for the defendants and in their names against the owners of land adjoining the land upon which the note was given for the purpose of determining the shortage claimed by Webb and Hill in the land conveyed to them by deed referred to above and to credit the note for whatever shortage appeared in the tract after the termination of such litigation and further offered for his client to pay all costs of said litigation, but that defendants had refused such offers. He further testified that as the title to the land was in the name of the defendants, and as they refused to permit their names to be used in the proposed. suits, he had been unable to determine the shortage, if any existed. He further testified that the contract executed by the administrator and the defendants attached to the petition was a correct copy of the original.

Article 588, Revised Civil Statutes 1911, reads: “When a suit shall be instituted by an assignee or indorsee of any written instrument, the assignment or indorsement thereof shall be regarded as fully proved, unless the defendant shall deny in his plea that the same is genuine, and moreover shall file, with the papers in the cause, an affidavit stating that he has good cause to believe, and verily does believe, that such assignment or indorsement is forged.”

The following special answer duly verified by defendant Webb was filed:

“That the transfer of this note to plaintiff by A. C. Hensley, administrator of the Laura G. H. Torrence estate, was a subterfuge and fraud in law; there was no consideration for said transfer; that the same was not made in good faith but was made for the purpose of depriving the defendant S. Webb of any legal and equitable rights he may have against said Torrence estate. That said administration on the said Torrence estate was taken out in another and different jurisdiction than under the laws of the state of Texas, to wit, in the state of Kentucky, where said administration is still pending, and that, before an administrator can sue in this state for property or anything of value belonging to his estate, he must first take out letters of administration under the laws of this state, and that A. C. Hensley, as administrator, has failed and refused to qualify in Texas as the law directs as administrator of said estate, and that plaintiff is not the bona fide owner of said note and cannot maintain this suit against these defendants.
“The State of Texas, County of Shackel-ford. I solemnly swear that I am one of the defendants in the above-styled and numbered cause, and that the matters stated herein, in the above and foregoing plea, are true. S. Webb.
“Sworn to and subscribed before me on this the 4th day of May, 1911. W. B. King, Clk. Dist. Ct. Shackelford County, Texas.”

But there was no verified answer denying the execution of the written agreement attached to the plaintiff’s petition as a part thereof and alleged to have been executed by the defendants and by A. C. Hensley, administrator. In fact this agreement was specially pleaded by the defendants also as a basis for their plea in abatement of the suit. The effect of that agreement was to recognize the administrator as the holder of the legal title to the note and as having authority to collect it and stipulated that Webb would pay same to the administrator in the event it should be determined that the alleged shortage in the land did not exist. Nor was there any verified plea by appellant questioning the validity of the indorsement of the note to W. H. Stevens by the administrator, although such assignment of the note to Stevens and transfer from Stevens to plaintiff was alleged in the petition in addition to another allegation that plaintiff acquired the note from the administrator.

The majority are of the opinion that under the pleadings the evidence recited above was sufficient to show a transfer of all title originally owned by the payee of the note to the indorsee W. H. Stevens and also to show that plaintiff acquired the title of the in-dorsee. Schauer v. Beitel, 92 Tex. 601, 50 S. W. 931; Garrett v. Findlater, 21 Tex. Civ. App. 635, 53 S. W. 839 (as applicable to the possession of the administrator); Revised Statutes, art. 1906, subds. 8, 9; 3 Wigmore on Evidence, § 1960; 4 Wigmore on Evidence, § 244.

As W. H. Stevens, the indorsee of the note, was made a party defendant in the suit, and as judgment was rendered in favor of the plaintiff against him for title thereto, from which judgment said Stevens has prosecuted no appeal, appellants could not in any event be heard to complain of lack of evidence to prove that the title acquired by W. H. Stevens, indorsee of the note, from the administrator was duly transferred to the plaintiff.

Accordingly the sixth assignment of error is overruled by the majority, and the judgment is affirmed.

CONNER, C. J.

(dissenting). Disregarding questions not likely to arise on another trial, I think the judgment should be reversed because of a want of the proper allegation and proof of any right in appellee to recover upon the note sued upon. As alleged and affirmatively shown on the face of appellee’s petition, the note in question was the second one in a series of four notes executed by appellant and L. H. Hill on the 2d day of December, 1906, made payable to the order of Laura G. H. Torrence on the 17th day of December, 1907, 1908, 1909, and 1910, respectively; that after their execution, and before the payment of any of these notes, Laura G. H. Torrence died and A. C. Hensley was appointed administrator of her estate, the regularity of the appointment not being questioned; that afterwards, to wit, on the 8th day of June, 1909, as shown by copy thereof set forth in appellee’s petition, said administrator and appellant Webb entered into a written agreement which recites that a shortage in the survey of land for which the notes had been given existed and that notes 1, 3, and 4 of the series had been paid by Webb, and which specifically provides that note No. 2 of the series (the one upon which appellee sues), together with the agreement, should be deposited with the First National Bank of Albany, Tex., in escrow, and that no demand for the payment of said note No. 2 should be made until said shortage should be ascertained to the satisfaction of the parties, neither the party who was to ascertain the shortage, nor the time, nor the method of ascertainment being specified. The appellee alleged that he represented the administrator in this adjustment of the controversy existing with reference to the shortage, and that said note No. 2 and said agreement had been “put up with the First National Bank, one of the defendants, to be held until said claimed shortage was determined.” The First National Bank of Albany, Tex., was sued among other defendants, against which the prayer was that said bank be required “to produce note No. 2 sued on in this case and held by said defendant in trust in court that the same may be merged into a judgment against defendant S. Webb and L. H. Hill.” Appellee alleged the ownership of the note in question in general terms but specially pleaded his title thus: “That said Hensley, administrator aforesaid, has sold and conveyed to plaintiff said note No. 2 of said series described above, also all of the rights, choses in action, liens, and all other rights that said estate of Laura G. H. Torrence had in said note No. 2 of said series for a valuable consideration, which said conveyance is in writing and signed and acknowledged by said administrator of the estate of Laura G. H. Torrence, deceased, whereby,” etc. The written transfer of the note, rights, choses in action, etc., thus alleged to have been transferred was not made part of the petition, nor is there any allegation of any kind or character that the sale of the note by the administrator to any person had been ordered by the court as specifically required in Revised Statutes, art. 3480, quoted by the majority. Nor is there any allegation that such sale was ever approved or ratified by the court administering the estate of said Laura G. H. Torrence. Nor is there a particle of evidence from which such order or ratification may be implied. It further affirmatively appears from the petition that ap-pellee’s purchase, if any, was after the maturity of the note and with full knowledge of its deposit in the First National Bank; it being alleged, as stated, that appellee acted in tha.t settlement as the attorney for the administrator. The only proof offered or relied upon in support of the appellee’s allegations of title is his own testimony to the effect that he was the owner of the note sued upon and the fact that he introduced the note in evidence. In this condition of the allegation and proof, I think the plaintiff wholly failed to make out his case. The administrator in making the sale had no authority whatever in the absence of authority given by the court. He was but an instrument or agent of the court, and authority to make the sale should have been made to affirmatively appear both by pleading and proof, and no presumptions can be indulged in favor of appellee under the circumstances and allegations shown in this case. See Matula v. Freytag, 101 Tex. 357, 107 S. W. 536; Berry v. Hindman, 129 S. W. 1181; Ball v. Collins (Sup.) 5 S. W. 622; Teague v. Swasey, 46 Tex. Civ. App. 151, 102 S. W. 458; Cruse v. O’Gwin, 48 Tex. Civ. App. 48, 106 S. W. 757, and authorities there cited; Terrell v. Martin, 64 Tex. 121; Hendrix v. Richards, 57 Neb. 794, 78 N. W. 378; Slusher v. Hammond, 94 Iowa, 512, 63 N. W. 185; McDuffie v. McIntyre, 11 S. C. 551, 32 Am. Rep. 500; Bates v. Dunham, 58 Iowa, 308, 12 N. W. 309.

A careful examination of the authorities cited, which for want of time will not be here reviewed, must bring the conclusion that the title to property of an estate is in the heirs to be administered by the court for their benefit and for the benefit of creditors of the estate, and that a transfer of such property by the administrator, save in the mode pointed out in the law, is void and affords no defense to a suit by the heirs. It may be and is ordinarily true that possession of a promissory note affords presumptive evidence of title in the party producing it, but I do not think such presumption can be indulged under circumstances as here shown. As here shown it affirmatively appears that the bank was in actual possession and that the transfer upon which the plaintiff relies was by an entire stranger to the title. He was neither payee in the note nor heir of such payee, nor was there, as already stated, any order of the probate court authorizing or confirming the sale. Appellee’s statement that he was the “owner” of the note was but a mere conclusion and cannot, if intrinsically without merit, be considered as supporting the judgment; it not being the introduction but its merit which gives weight to evidence. See Henry v. Phillips, 151 S. W. 533; 14 Encyc. of Evidence, p. 102, par. 6, and authorities there cited in the note; Sharp v. Baker, 22 Tex. 306. The fact that appellee introduced the note in controversy in evidence upon the trial, if under other circumstances affording presumptive evidence of ownership, is not here entitled to any consideration in view of the fact recited in the judgment that the note had been produced and deposited in the files of the court by the First National Bank.

I therefore conclude that article 1906, Revised Statutes, and authorities cited in conjunction therewith have no application, and that the judgment in this ease should be reversed, and the cause remanded, regardless of the complaints made of the election of the special judge and of the question whether, upon the face of appellee’s petition, he showed that the note sued upon had matured by the ascertainment of the amount of deficiency in the survey referred to.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    EDWARDS v. YOUNGBLOOD.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.)
    1. Appeal and Error (§ 748) — Assignment of Error — Motion for New Trial — Applicability.
    Rev. Civ. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, provides that when a motion for new tria] has been filed the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of assignments of error on appeal. Held, that such section is mandatory, and that assignments of error filed separate from a motion for new trial, and not the same in form as the assignments contained in the motion, and in but few particulars in substance, will be stricken.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.]
    2. Appeal and Error (§ 274) — Sufficiency of Exception — Findings.
    An exception to the judgment is sufficient to authorize the excepting party to assail the findings on which the judgment is based, if not supported by the statement of facts in the record, without an exception to any specific finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591,1592,1605,1606,1607, 1624, 1631-1645; Dec. Dig. § 274.]
    3. Appeal and Error (§ 302) — Motion—Requisites.
    Where it is claimed that the statement of facts will not support the findings and judgment, the motion for now trial must point out wherein the statement is insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    Action between C. H. Edwards and T. J. Youngblood. From a judgment in favor of the latter, the former appeals. On motion to strike the assignments of error.
    Granted.
    See. also, 160 S. W. 289.
    Cecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee.

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

   HUFF, C. J.

Appellee, by motion, requests this court to strike out the assignments of error which are filed separate from motion for new trial. This ease is appealed from the county court of Wilbarger county, Tex., which convened April 7, 1913, and adjourned April 26, 1913. At that term of the court, on the 24th day of April, 1913, appel-lee obtained judgment against appellant. The trial judge, on the same day, filed his findings of fact and conclusions of law, to which appellant duly excepted. On the 25th day of April, appellant filed and presented his amended motion for new trial. In the order overruling the motion for new trial appellant excepted to the action of the court and gave notice of appeal and also entered therein his exceptions to the court's findings and conclusions. Appellant on the 17th day of June filed assignments of error, which are the assignments copied in his brief and presented as grounds upon which to reverse this case. Upon an examination of the assignments of error and the assignment contained in the motion for new trial, we find that the assignments of error which appellee requests be stricken out are not the same as the assignments contained in the motion for new trial in form, and in but few particulars in substance. Article 1612, R. S. 1911, was amended by the Thirty-Third Legislature, page 276 of the Acts thereof, and took effect April 4,1913. This article, as amended, provides: “That where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error.” Before the amendment, rules 24 and 25 for the Courts of Civil Appeals (142 S. W. xii) required the assignments of error to “refer to that portion of the motion for a new trial in which the error is complained of,” “and distinctly set forth in the motion for a new trial.” The courts have frequently referred to these rules in passing on assignments, and suggested that the purpose was to require the complaining party to present the issues in the trial court relied on for reversal. Frequently, before these rules, issues were presented by assignments which had not been called to the attention of the trial judge. Some have regarded this practice as unfair, resulting in reversals on questions not thought of or presented in the court below. Doubtless it was some such evil our Supreme Court sought to remedy by the promulgation of the rules above mentioned. The Legislature, by amendment, has emphasized this purpose. This law curtails labor and cost, and requires the presentation of the very question in the appellate court that was presented in the trial court. It relieves the appellate court from a search through long and involved motions for new trial and a comparison of each assignment therewith. It is not an infrequent occurrence that one party will contend the assignment presents a question not assigned in the motion for new trial, while the other will assert it was so presented, and the court is thus called upon to make a careful and critical comparison. This case illustrates the difficulty which frequently confronts the appellate courts when it is sought to ascertain whether it was distinctly set forth in the motion for new trial. Aside from the above suggestions, we regard that part of the law providing that “The assignments therein (the motion for new trial) shall constitute the assignments of error” as mandatory. It does not vest us with discretionary power in determining what shall constitute the assignments. We are not at liberty to disregard this plain mandate of the law. As we view the case, we must sustain the motion and strike out the instrument indorsed “Assignments of error” and copied in the brief of appellant.

Appellant suggests that the findings of fact and conclusions of law are often filed after the judgment and the motion for new trial, and therefore the assignments assailing the findings of the trial court should be entertained. Such is not the fact here, but if it were, we see no reason why the rule should be different.

The exception to the judgment of the court is sufficient to authorize the appellant to assail the findings. Article 1991, R. S. 1911; Voight v. Michel, 71 Tex. 78, 8 S. W. 623; Wilkins v. Burns, 25 S. W. 431; Brenton v. Peck, 39 Tex. Civ. App. 224, 87 S. W. 904; Smith v. Abadie, 67 S. W. 1077. It has been held that an exception to the action of the court in the order overruling a motion for new trial will authorize the appellant to call in question the findings of the court where there is a statement of facts in the records, as in this case. Temple v. Watkins Land Co., 81 S. W. 1188; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 605.

The findings by the trial court, if not supported by the statement of facts in the record, may be assailed under an exception to the judgment of the court without an exception being alleged against a specific finding. Findings of fact and conclusions of law, when filed, only evidence upon what facts and conclusions of law the trial court based its judgment. These findings and conclusions are made and reached before judgment, and are only reduced to writing and filed at the request of a party. Bowles v. Belt, 159 S. W. 885 (No. 445), not yet officially reported. If the statement of facts will not support the findings and judgment, the motion for new trial should point out wherein it is insufficient. This assignment can be made as readily and with as much particularity before as after the findings have been prepared and filed.'

We are not passing on the question whether a motion for new trial must be filed in a case tried before the court without a jury. We leave that for discussion when a case is presented requiring its consideration. Rule 71a for District Courts (145 S. W. vii); article 1991, R. S.; Greer Mill Co. v. Featherston, 95 Tex. 661, 69 S. W. 69; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. In this case a motion for new trial was filed, and when that is done the law says the assignments therein shall constitute the assignments of error. Rule 69 for District Courts (142 S. W. xxii) and Rule 27 for Courts of Civil Appeals (142 S. W. xii).

Under the rules, we are of the opinion that the assignments should be stricken out for the reason that the portion of the motion for new trial is not referred to where the error is complained of, or that the error is not distinctly set forth in the motion for new trial. If we should hold that the motion pointed out the error assigned it must be done in a great measure by inference; and, in order to do so, we must separate matters from the other complaints wholly disconnected from that and not germane to the assignment. El Paso Electric Railway Company v. Lee, 157 S. W. 748. In fact, we find the motion for new trial much involved, but if the assignments are sufficient in the motion, then those assignments, under the law, should have been presented to this court, and this court should not be required to pick out the error there assigned.

The motion of appellee will be sustained, and the assignments of error stricken out.

HALL, J., not sitting.


author: HENDRICKS, J.

text:
    EDWARDS v. YOUNGBLOOD.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.)
    Appeal and Error (§ 614) — Statement of Facts — Certificate—Official Stenographer.
    Where a statement of facts was prepared by the county judge and the only recognition in the record of a stenographer appearing in the case was a recital in the judge’s certificate that, the parties having failed to agree on a- statement of facts, and.having submitted their respective statements, the judge, from their statements, the “stenographer’s notes” and from his own recollection, had prepared the “foregoing statement,” etc., there was not a sufficient statement of a recorded fact that an official stenographer was appointed and served in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2708-2713; Dec. Dig. § 614.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    Action between C. H. Edwards and T. J. Youngblood. From a judgment in favor of the latter, the former appeals. On motion to strike statement of facts from the record.
    Overruled.
    See, also, 160 S. W. 288.
    Cecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee.

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

   HENDRICKS, J.

The grounds of appellee’s motion, for the purpose of striking the statement of facts from this record, are the same grounds, literally recited in the same language, as were considered by us in the opinion on the motion in the case of Security Trust & Life Insurance Company v. R. T. Stuart (No. 525) 160 S. W. 108, decided at this term. The statement of facts in this record is one prepared by the county judge on account of the disagreement of counsel, and the only recognition in this record of a stenographer appearing in the case in that capacity is in the certificate of the county judge, wherein he states that, the parties having “failed to agree on a statement of facts in this case, having submitted to me their respective statements, I have from their statements and the stenographer's notes, and from my recollection, prepared the above and foregoing statement,” etc. It will be remembered that the county judge appoints and qualifies the official stenographer upon the application of either party to the suit. This stenographer may have been an official stenographer or a private stenographer whose notes were used by the court. We are inclined to the opinion that the recitation in the certificate is not a sufficient statement of a recorded fact that an official stenographer was appointed, and'served as such in this cause; and, if that is true, the opinion in the case of Security Trust & Life Insurance Company v. Stewart, above mentioned, in all things controls.

The motion to strike the statement is overruled.

HALL, J., not sitting.


author: RICE, J. RICE, J.

text:
    TOMPKINS et al. v. PENDLETON.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.
    On Motion for Rehearing, Oct. 15, 1913.
    On the Merits, Oct. 22, 1913.)
    On Motion for Rehearing.
    1. Appeal and Error (§ 653) — Amendment op Transcript — Time por Proceedings.
    Court of Civil Appeals Rules 8 and 11 (142 S. W. xi), requiring motions for certiorari and to amend the transcript, necessitated by irregularity in bringing the ease into the appellate court, to be filed within 30 days after’ the case is filed in the Court of Civil Appeals, should not be arbitrarily construed so as to defeat the ends of justice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2816-2818; Dee. Dig. § 653.] .
    2. Appeal and Error (§ 654) — Diminution, op Record — Application for Relief.
    An appeal bond and the transcript were filed in due time on appeal from the county to the district court, but were not incorporated into the transcript on appeal to the Court of Civil Appeals because of the clerk’s failure to copy them into the transcript, as requested by appellant, and not from any negligence by appellant’s counsel, and such failure was not discovered by counsel until the motion to dismiss the appeal was filed after about a year had elapsed, instead of 30 days from the time the record was filed in the appellate court, as required by Court of Civil Appeals Rule 9 (142 S. W. xi), thereby making it impossible for appellant to conform to Rule 8 (142 S. W. xi), requiring a motion to amend the transcript to be filed within 30 days after the cause was filed in the Court of Civil Appeals. Held, that justice required that appellant be now permitted to file the appeal bond with the transcript.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2819-2822; Dec. Dig. § 654.]
    On the Merits.
    3. Wills (§ 323) — Contest—Misconduct op Counsel.
    Proponent’s counsel stated in argument that a certain witness, who testified by deposition for contestants, “did not dare to come 'here where I could cross-question her, for she was bought for one dollar, for one of the counsel for contestants told me so,” and when' the court stated, on objection by contestants, that counsel should confine his argument to the facts, proven, proponent’s counsel turned to the jury and said, “It is true.” The witness referred to was contestants’ chief witness on the question of whether decedent ever in fact executed the will, which was the principal issue, and there was no evidence tending to support the argument of counsel. .Held, that the court’s failure to instruct the jury to disregard such argument was prejudicial, and required that the verdict be set aside.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 766; Dec. Dig. § 323.]
    4. Wills (§ 396) — Contest — Action —Review — Objections to Evidence.
    Error in admitting the alleged will in evidence in a will contest cannot be reviewed, where the objections to its introduction on the ground of failure to prove that the attesting witnesses were credible and over 14 years of age was not specifically pointed out.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 866; Dec. Dig. § 396.]
    5. Trial (§ 82) — Reception of Evidence.
    District Court Rule 57 (142 S. W. xxi), providing that exceptions to the admission of evidence shall not be sustained where no reason is assigned for objecting thereto, if the-■evidence is competent as tending to prove any fact in issue, does not permit “dragnet” objections which do not specify the objections-to the evidence offered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 194-210; Dec. Dig. § 82.]
    6. Appeal and Error (§ 724) — Assignment-of Error.
    An error not presented as required by Court of Civil Appeals Rule 24 (142 S. W. xii> requiring an assignment of error to distinctly specify the grounds of error relied on, which must have previously been incorporated in the motion for new trial, is deemed to have been waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    Appeal from District Court, Waller County; Wells Thompson, Judge.
    Probate proceedings by Walton Pendleton against Henry Tompkins and others, contestants. From a judgment for proponent, contestants appeal.
    Reversed and remanded on rehearing.
    K. E. Hannay, and R. E. Hannay, Jr., both of Hempstead, for the motion. W. J. Poole, of Madisonville, and A. G. Lipscomb, of Hempstead, opposed.

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

   On Motion to Dismiss Appeal.

RICE, J.

This is an appeal from a judgment of the district court of said county probating the will of Lou Wyatt, deceased, and appointing appellee executor of said estate, and directing that letters testamentary should be issued to him. We gather from the brief and record that this case originated in the probate court of said county, wherein appellee propounded said will for probate, which was contested by appellants on the ground that said deceased was of unsound mind, and that the same was induced by undue influence, etc.

A. G. Lipscomb, of Hempstead, and W. J. Poole, of Madisonville, for appellants.

There is no appeal bond nor certified transcript, however, of the papers and proceedings relating to the judgment appealed from, as required by article 2204, Sayles’ Rev. Civ. Stat. 1888, and which failure is made the basis by appellee of a motion to dismiss said appeal. The district court had no original, but only appellate, jurisdiction of this case; and article 2200, Sayles’ Rev. Civ. Stat., provides that any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of chapter 81, which requires, among other things, that such appellant shall, within 15 days after the decision, judgment, or decree shall have been rendered, file with the county clerk a bond conditioned as required by law, and that upon the filing of such bond such clerk shall make a certified copy of the proceedings and papers relating to such decision or decree, together with such decision or decree, and transmit the same to the clerk of the district court, together with the appeal bond, or affidavit in lieu of such bond, if any has been given, on or before the first day of the next term of such court. Without the filing of such bond or- affidavit in lieu thereof, the district court can acquire no jurisdiction, and the appeal should be dismissed. See Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486. And it is the settled practice in this state that where the court a quo had no jurisdiction of the ease, the appellate court can acquire none. See Able v. Bloomfield, 6 Tex. 263; Horan v. Wahrenberger, 9 Tex. 317, 58 Am. Dec. 145; Davis v. Stewart, 4 Tex. 223. The practice in this respect is very much similar to that prescribed in appeal from the justice to the county court (see articles 1670 and 1673, Sayles’ Rev. Civ. Stat. 1897); and it has been frequently held in such cases that where no appeal bond and transcript were filed, as required by said last-named articles, that the county court acquired no jurisdiction, and such appeals should be dismissed (see M., K. & T. Ry. Co. v. Bland, 55 Tex. Civ. App. 382, 119 S. W. 911; Bonner & Legg v. Tyndall, 46 Tex. Civ. App. 176, 101 S. W. 839; Needham v. Austin Electric Ry. Co., 127 S. W. 904). But appellants in this case resist the motion to dismiss for the reason, as they allege, that they complied with the statute in this respect, showing that they filed their appeal bond conditioned as required by law with the county clerk, who approved the same, within two days after the judgment was rendered in the county court, and that said bond was thereafter, in due time, together with the transcript of the proceedings, filed in the district court of said county, attaching to said reply certified copy of said bond, omitting, however, a transcript of such proceedings, but offered no explanation or excuse showing why such bond and proceeding were omitted and asking that in the event this court is not satisfied, it issue its writ of certiorari to the district clerk of said county to complete said transcript, which reply was duly verified. This reply, however, was not filed in this court until June 6, 1913, and the transcript of the record was filed in the Court of Civil Appeals for the Galveston District on July 8, 1912, and in this court on May 5, 1913, for which reason we must disregard this reply and the copy of the bond thereto attached, and refuse to issue the writ of certiorari, because such motion must be filed within 30 days after the transcript is filed in the Court of Civil Appeals. See rules 8 and 11 (142 S. W. xi) for the government of the courts of civil appeals.

But, even if we are mistaken in this, still this court has no jurisdiction to entertain said appeal, because it appears from appellants’ brief that they introduced no proof on the trial in the county court when the will was offered for probate, and by such failure appellants must be held to have abandoned their suit; and, having abandoned their cause of action, they have no right of appeal. See Sorrell v. Stone, 127 S. W. 360, in which a writ of error was denied by the Supreme Court.

For the reasons indicated, we think the motion to dismiss the appeal should be sustained, and it is so ordered.

Appeal dismissed.

On Motion for Rehearing.

RICE, J.

While appellants’ brief stated, as held by us in original opinion, that no proof was offered by them on trial in the county court, yet it clearly appears from the record that this statement was incorrect and was inadvertently made; such proof having in fact been introduced.

It is also true that while rules 8 and 11 require all motions for certiorari and to amend the transcript, occasioned by irregularities in the manner of bringing a ease into court, to be filed within 30 days after the case is filed in this court, still these rules are not to be so arbitrarily construed as to defeat the ends of justice in any case. The record shows that an appeal bond was in fact filed from the county court to the district court, together with the transcript, in due time; and the failure to incorporate these documents in the transcript to this court is not shown to be attributable to the negligence of appellants’ counsel. On the contrary, it seems that he prepared the list of papers to be copied by the clerk in the transcript, and this list embraced the bond and transcript on appeal from the. county to the district court, and the failure on the part of the clerk to conform to this request was not discovered by said counsel until the motion to dismiss the appeal was filed. This motion should itself have been made, under rule 9 (142 S. W. xi), within 30 days from the time the record was filed in the appellate court, but was not done until about one year had elapsed. Therefore it was impossible for appellants to conform to the requirements of rule 8 (142 S. W. xi). Justice, we think, will be best subserved by allowing the filing of said bond and transcript, copies of which accompany the motion for rehearing, and they will hereafter be regarded as a part of the record to be considered by this court.

For the reasons stated, the motion for rehearing is granted.

On the Merits.

This appeal involves the correctness of a judgment sustaining the will of Lou Wyatt, deceased, which was propounded for probate in the county court of Waller county by Walton Pendleton, appellee, the sole executor named therein. Its execution is denied by appellants, and it is likewise assailed on the ground of fraud and undue influence. The case was first tried in the county court, wherein a judgment was obtained by appellee, and on appeal therefrom by appellants to the district court a similar judgment was rendered, from which this appeal is prosecuted.

The first error assigned is the insufficiency of the evidence to sustain the judgment. It is only necessary to say in reference to this assignment that there is evidence supporting the due execution of the will; and, while this fact is controverted by the evidence offered on the part of appellants, yet its solution was a question for the jury, and their verdict, for this reason, will not be disturbed by us.

During the closing argument of R. E. Hanhay, Esq., counsel for appellee, as shown by bill, he said: “Gentlemen of the jury: The witness Rachel Richards, who testified by deposition for contestants, did not dare to come here where I could cross-question her, for she was bought for one dollar, for A. G. Lipscomb, one of the counsel for contestants, told me so.” This language was promptly objected to by counsel for appellants, on the ground that the same was untrue, and, second, that there was no such testimony before the jury, and the court told Mr. Hannay to confine his argument to the facts as proven. Whereupon he turned to the jury and said: “It is true.” To all which language and conduct on his part contestants excepted, and the court did not instruct the jury to disregard this argument. One of the principal issues in the case was as to whether or not the will was in fact ever executed by Lou Wyatt, the deceased, and Rachel Richards was the chief witness sustaining appellant’s contention in this respect, to wit, that the will was never executed by Lou Wyatt. There is absolutely no evidence in the record supporting or tending to support the argument of counsel as above set out. We cannot presume that the jury were not influenced thereby, but, on the contrary, must infer that the same' probably influenced their verdict. This being true and the court having failed to instruct the jury to disregard it, requires us to set aside the verdict. See Galveston Electric Co. v. Dickey, 56 Tex. Civ. App. 490, 120 S. W. 1134; Dillingham v. Scales, 78 Tex. 205, 14 S. W. 566; Moss v. Slack, 141 S. W. 1063; Cameron v. Cameron, 162 Mo. App. 110, 144 S. W. 171; Western U. Tel. Co. v. Ray, 147 S. W. 1194; Cincinnati, N. O. & T. P. Ry. Co. v. Martin, 154 Ky. 348, 157 S. W. 710; Shovel & Tool Co. v. Moore, 154 Ky. 431, 157 S. W. 1121; City of Austin v. Gress, 156 S. W. 535; Campbell v. Prieto, 143 S. W. 668; Willis & Bro. v. McNeill, 57 Tex. 465; G., C. & S. F. Ry. Co. v. Butcher, 83 Tex. 314, 18 S. W. 583; Texas & St. Louis, etc., Ry. Co. v. Jarrell, 60 Tex. 270.

In Dillingham v. Scales, supra, Mr. Justice Henry held that where improper argument had been resorted to, which was calculated to and probably did influence the verdict of the jury, it was the duty of the court' to set aside the verdict.

In the case of City of Austin v. Gress, supra, it was held that statements by plaintiff’s counsel in a personal injury case, indicating a belief that an insurance company was the real party in interest in defending the case, was reversible error, in spite of the action of the court in directing the jury to disregard it.

We cannot consider the point raised by the fifth assignment, for the reasons, first, that the objection to the introduction of the will was too general, failing to point out the particular error relied on, which, however, appears from the statement to have been a failure on the part of appellee to prove that the attesting witnesses to the will were credible and over the age of 14 years. If the assignment, however, had been sufficiently specific to raise the question now sought to be presented, still it could not be considered by us, for the reason that this specific objection was not made to the introduction of the will at the time it was offered in evidence, nor was it even raised in the motion for new trial. District Court Rule 57 (142 S. W. xxi) prescribes that exceptions to the admission of evidence on the trial, where no reason is assigned for objecting to it, shall not be sustained where the evidence is obviously competent and admissible as tending to prove any of the facts put in issue in the pleadings. This rule does not permit dragnet objections which fail to definitely specify the objection to the evidence offered, and is reasonable in that it affords the trial court an opportunity of considering the exact question presented. Rule 24 (142 S. W. xii), governing this court, requires that the assignment should distinctly specify the grounds of error relied on, which must have been previously incorporated in the motion for new trial, and an error not so presented must be regarded as waived.

We do not think there is any merit in the remaining assignments, for which reason they are overruled; but, on account of the error above pointed out, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.