author: XANTIS, J.

text:
    FT. WORTH & R. G. RY. CO. v. MATHEWS et al.
    (No. 2780.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)
    Courts <&wkey;l&9(8) — Jurisdiction — County Court — Amount in Controversy — Interest.
    A petition for damage to live stock in shipment which alleged that the value of the stock was diminished by $977, and prayed for a recovery of that amount without interest, does not show that the amount in controversy exceeds $1,000, which is the limit of the jurisdiction of the county court, though interest in such an action is recovered not as interest but as an element of damages, since plaintiffs can omit to sue for that element of damages, the same as for any other element, and it is not then in controversy.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 428-436; Dec. Dig. &wkey;169(8).]
    Certified Question from Court of Civil Appeals of Third Supreme Judicial District.
    Action by Will Mathews and others against the Ft. Worth & Bio Grande Bailway Company. Judgment for the plaintiffs, and defendant appealed to the Court of Civil Appeals, which certified to the Supreme! Court the question whether the petition showed that the amount in controversy was beyond the jurisdiction of the county court in which the suit was instituted (169 S. W. 1052, 188 S. W. 243).
    Question answered in the negative.
    Andrews, Streetman, Burns & Bogue, of Houston, Snodgrass & Dibrell, of Coleman, and Lockett & Bowe, of Ft. Worth, for appellant. Woodward & Baker, of Coleman, for appellees.
   XANTIS, J.

This case is before us on certified question from the Court of Civil Appeals for the Third District. It presents the question whether the amount in controversy is in excess of $1,000, and that therefore the county court in which the ease was tried had no jurisdiction thereof. To the certificate of the Court of Civil Appeals there is attached, and made a part thereof, the plaintiffs' first amended original petition on which the case was tried in the county court. Both the certificate and said petition are copied herein, and are as follows :

“This case is pending in the Court of Civil Appeals for the Third District on motion for rehearing. This court first held that the plaintiffs’ petition showed on its face that the amount in controversy was in excess of $1,000, and therefore that the county court had no jurisdiction to try the case, although the plaintiff prayed for judgment for only $997. After our decision of the case, we sustained the appellees’ second motion for a rehearing on account of the decision rendered by the Supreme Court in the case of P. & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103, which we regarded as in conflict with, and therefore overruling, our decision. Appellant has filed a motion fqr a rehearing, in which it is not only contended that this court ruled correctly in its former decision, but that this case is distinguishable from the Bayzor Case, and that there is no conflict between them; and, as the decision of this court will be final in this case, and as the question involved is one of importance, we have granted appellant’s request, and concluded to certify the question to your court for final decision. We attach hereto and make a part of this certificate a copy of the plaintiffs’ amended original petition, which is the only pleading material to the question certified. The question certified may be stated in this form: Does the plaintiffs’ petition show upon its face that the amount in controversy is in excess of $1,000, and therefore beyond the jurisdiction of the county court? In deciding that question this court held, as appears from our original opinion, that the plaintiffs’ right to recover 6 per cent, upon the amount of damage done to the property from the date of such damage was as much a part of the plaintiffs’ cause of action as the damage referred to, and the fact that the plaintiffs did not sue for the 6 per cent, referred to was immaterial in determining the question of jurisdiction. See Ft. W. & R. G. Ry. Co. v. Mathews (Civ. App.) 169 S. W. 1052. But that holding seems to be in conflict with the Bayzor Case. It is obvious that the question certified is material in this case. It is also one of considerable importance and public interest, and therefore the hope is expressed that the Supreme Court may be able to decide it at an early date.”

First amended original petition above referred to is as follows:

“Now comes your petitioners, Will Mathews, Jack Babington, and J. E. Boog-Scott, hereinafter styled plaintiffs, all of whom reside in Coleman county, Tex., complaining of the Gulf, Colorado- & Santa Fé Bailway Company, a corporation, with G. E. Dalton its local agent, located in Coleman, in Coleman county, Tex., and the Ft. Worth & Bio Grande Bailway Company, a corporation, with its local agent, L. C. Yoekel, located at Brownwood, Brown county, Tex., hereinafter styled defendants. That for cause of action plaintiff represents to the court that heretofore, to wit, on and about the 18th day of March, 1909, defendants were partners, and are now and were at said time agents of each other, and on said date were engaged in shipping cattle and other freight over their said roads for hire, as freight charges therefor^ and have been so engaged for a long time prior thereto and ever since said date; and that on said date aforesaid these plaintiffs turned over to the said defendants at Coleman, Tex., three carloads of fine registered cattle to be shipped over their said roads to Brady, Tex., via Brownwood, Tex. That said cattle were received by said defendants at Coleman, Tex., in fine shape, and were to be placed on sale at destination, and same consisted of 12 young bulls, 8 heifers, or young cows, 35 cows and 5 calves, making the shipment in the said three cars. That plaintiffs placed in said cars 30 bales of hay for said cattle of the value of $12, and tied each of said cattle in said cars (except the heifers, and barred them off) with a strong and sufficient rope, to prevent them from mixing and injuring each other while en route, and to prevent the bulls from mixing and injuring said heifers and cows and calves, and that the defendants and their agents knew the purpose of said shipment and tying said cattle up in said cars, and plaintiffs fully advised the defendants of said purpose of said tying and separating said shipment; that when said shipment arrived at Brownwood, Tex., said defendants by and through their said agents negligently and intentionally and without the permission and knowledge of plaintiffs, and unnecessarily, unloaded said cattle off of said ears they were loaded in, and turned them loose in muddy pens, with the ropes on their heads and dragging on the ground and through the mud, and mixed unnecessarily said bulls with said cows and heifers and calves, and turned in said pens quite a number-of other old bulls with this shipment, which belonged to other parties than these plaintiffs, and that the bulls ran, rode, fought and copulated with said cows, heifers, and calves all night, and fought the bulls of these plaintiffs, and said plaintiffs’ bulls rode, fought, and copulated with said she cattle all night in said pens; that by reason of such copulation the cows and the cattle were injured by being bred too young, and the progeny could not be registered, and next morning said cattle were badly damaged and injured by said negligence of said plaintiff as herein alleged, and when they reached destination said cows were damaged in their market value $15 per head, and said young heifers were damaged in their market value $40 per head, and said bulls were damaged in their market value $10 per head, and said calves were damaged in their market value $1 per head, aggregating $070, and said hay of the value of $15 was thrown out by defendants at Brownwood, and the damages and loss to plaintiffs aggregating $977. That it was only about 75 miles from Coleman to Brady, and that there was no occasion for unloading said cattle at Brownwood. That said defendants received said cattle at Coleman and for a valuable consideration paid by plaintiffs undertook to ship said cattle to destination with dispatch and with proper care and attention, but negligently unloaded said cattle at Brownwood, as aforesaid, and negligently permitted same to become injured, as aforesaid, to plaintiffs’ damages as aforesaid, and plaintiffs here represent and state to the court that in the event they should be mistaken as to there being a market value for said cattle at destination, then in that event the plaintiffs allege that said cattle were injured in their intrinsic value in the amounts above mentioned,, and. that they wore damaged to said amount as above stated intrinsically, and said cattle were worth that much less per head after being" damaged than before. That the plaintiffs have never been paid anything by the defendants for said damages though often requested payment thereof, but defendants refused and now refuse to pay plaintiffs or any part thereof. Said cattle were shipped in the name of Will Mathews, but was the property of plaintiffs. Wherefore plaintiffs pray defendants to be cited as required by law, and upon hearing hereon they have judgment for the said sum of $977 as damages without interest, judgment for costs, and general relief, and will ever pray.”

. We answer the question in the negative. The plaintiffs’ petition does not show upon its face that the amount in controversy is in excess of $1,000, but alleges the amount in controversy to be in the sum of $977. There were several items of damage sued for, and the petition alleged that all these items aggregated $977 (stated by Chief Justice Key to be $997). The petition expressly stated that the plaintiffs prayed judgment for that amount, “as damages without interest.” It is not a case where interest is recoverable eo nomine, but if recoverable at all, it is' only recoverable as ari item of damage. This item was not sued for, and was therefore not in controversy. A litigant may, at his election, omit to sue for any item which is due him (San Antonio & A. P. Railway v. Addison, 96 Tex. 64, 70 S. W. 200), and not thereby place such item in controversy, unless it is necessarily involved as a part of some other item of damage that has been placed in controversy. Pecos & Northern Texas Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Ft. Worth & Rio Grande Railway Co. v. Brown, 45 Tex. Civ. App. 376, 101 S. W. 266; First National Bank of Hubbard v. Cleland, 36 Tex. Civ. App. 478, 82 S. W. 337; Missouri, Kansas & Texas Railway Co. of Texas v. Dawson Bros. (Civ. App.) 84 S. W. 298; Chicago, Rock Island & Gulf Railway Co. v. Whaley (Civ. App.) 177 S. W. 543; Texas & Pacific Railway Co. v. W. Scott & Co. (Civ. App.) 86 S. W. 1065; St. Louis, Southwestern Railway Co. of Tex. v. Starks (Civ. App.) 109 S. W. 1003; Atchison, Topeka & Santa Fé Railway Co. v. Dawson (Civ. App.) 90 S. W. 65; Western Union Telegraph Co. v. Garner (Civ. App.) 83 S. W. 433; Moose v. Missouri, Kansas & Texas Railway Company of Texas, 180 S. W. 225.

The case of Pecos & Northern Texas Railway Co. et al. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, is not in conflict with this holding. The allegations of the pleading in that case show certain items of damage in the aggregate to be of the amount of $253.50, which is in excess of the jurisdiction of the justice court, where the suit was brought, of which, however, the plaintiff only sought to recover $199.50, in the following language:

“Wherefore this plaintiff prays for judgment for the amount sued for, and interest at 6 per cent, per annum, in all not to exceed $199.50.”

While the amount prayed for was within the jurisdiction of the court, the amount in controversy was held to be the aggregate value of all the items sued for, which was in excess of the jurisdiction. The opinion expressly limits the holding to the case made by the facts therein stated.
      dte»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    STATE v. ENID, O. & W. RY. CO. et al.
    (No. 2833.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)
    1. Railroads <&wkey;129(2) — Charters.
    The charter of a railroad to construct, maintain, and operate a line constitutes a contract, binding not only on it, but the purchasers, at receiver’s sale, of its property, to maintain and operate it.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 400; Dec. Dig. <S&wkey;129(2).]
    2. Railroads <&wkey;12»(l) — Removal of Main Track — Purchasers at Receiver’s Sale.
    The purchasers at receiver’s sale of the property of a railroad take it subject to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6625, prohibiting the main track of a railroad once constructed and operated being abandoned or removed.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 392, 399; Dec. Dig. &wkey;129(l)J
    3. Constitutional Law &wkey;>297 — Due Process oe Law.
    Prohibiting the owners of a railroad, though financially unable to operate it, to remove its main track, contrary to statute in force when the charter was granted, is not depriving them of property without due process.
    [Ed. Note. — For other cases, sqe Constitutional Law, Cent. Dig. §§ 832-834; Dec. Dig. <&wkey;> 297.]

      4. Raileoads <&wkey;57 — Main Track — Removal —Insolvency.
    The main track of a railroad once constructed does not lose its entity as such, within Vernon’s Sayles’ Ann. Oiv. St. 1014, art. 6625, prohibiting its removal, because of insolvency of the company.
    [Ed. Note. — For other cases, see Railroads* Cent. Dig. §§ 124r-126; Dec. Dig. &wkey;57.]
    6., Railroads <&wkey;57 — “Removal of Main Track.”
    To remove the track from the constructed end of a railroad line to other counties, to be used at the other end of the line or in construction of another railroad, would be a removal of the main track within the inhibition of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6625. .
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 124-126; Dee. Dig. &wkey;57.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by the State against the Enid, Ochil-tree & Western Railway Company and others. Judgment for plaintiff was reversed by the Court of Civil Appeals (181 S. W. 498), and plaintiff brings error.
    Reversed.
    B. F. Rooney, Atty. Gem, and Luther Nickels, Asst. Atty. Gen., for the State. H. J. Cureton, of Meridian, W. F. Ramsey, of Dallas, and Chas. L. Black, of Austin, for defendants in error.
   YANTIS, J.

The suit was by the state of Texas against the defendants in error, and its purpose was to perpetually enjoin the latter from taking up and removing the rails and ties on the Enid, Ochiltree & Western Railway from Dalhart to Wilcoe, a distance of 13 miles. Said railway company had been granted a charter by the state of Texas for the purpose of constructing, maintaining, and operating a railway from Dalhart to Ochil-tree, a distance of about 165 miles. All of the right of way, with the exception of a very few miles, had been secured, and the embankment for the roadbed had been constructed from Dalhart to Dumas, in Moore county, a distance of about 34 miles. It had constructed and completed its track from Dalhart to Wilcoe by funds raised from stock subscriptions, amounting to about $220,000 paid in. The whole of the right of way of this line from Ochiltree to Dalhart was acquired, and the corporation had constructed on its right of way a first-class dirt roadbed, ready for the laying of ties and rails from Dalhart to Dumas, and had graded the place for terminal facilities within the town of Dalhart, had acquired 20 acres of ground in the eastern suburbs of the town of Dalhart for switch and terminal grounds, and had acquired its right of way for physical connections at Dalhart with the lines of the Ft. Worth & Denver City Railway Company and the Chicago, Rock Island & Gulf Railway Company, and it had constructed temporary depots at Dalhart and at Wilcoe, at a cost of approximately $400. It had acquired rolling stock consisting of one steam locomotive, a combination passenger and baggage coach, and five flat cars; passenger and freight rates and tariffs applicable were prepared and filed with and approved by the Railroad Commission of Texas and the Interstate Commerce Commission. Thereafter, early in November, 1910, said railway company put in operation its trains for the purpose of hauling freight and passengers from Dalhart to Wilcoe, running said trains daily from Dalhart to Wil-coe, and from Wilcoe back to Dalhart, on a regularly promulgated and advertised schedule and continued to so operate said trains daily both ways for about two months. During said period said railway company sold tickets, made shipping contracts, issued bills of lading, issued and exchanged annual transportation with other connecting lines of railway, and hauled both freight and passengers for hire over its said line of railroad. During said period said company also entered into and maintained joint traffic rates, and similar arrangements with both the Ft. Worth & Denver City Railway Company and the Chicago, Rock Island & Gulf Railway Company.

The facts show that said railway company, because of lack of funds, was unable to build any further, and on the application of J. B, Cartwright, and others, was placed in the hands of a receiver; that soon thereafter the operation of trains over said company’s road was discontinued by order of the district court, it having been made to appear to said court that the trains were operated at a loss to the company. It is shown that the expense of operating the train per month was about $1,500 or $2,000, and that the gross earnings did not exceed $350 per month. It was further shown by the agreed statement of facts that the station of Wilcoe is in a thinly settled country, and that the railway company could not hope to get sufficient business at any time in the future to pay the operating expenses of said train.

Shortly after the appointment of a receiver, the court directed a sale of the property belonging to the corporation, and it was purchased for the sum of $33,000 by the individual defendants in error herein, which was approved by the court, and the property ordered to be conveyed to them. The purchasers at the receiver’s sale have been unable to secure the funds with which to extend said road, and are threatening to dismantle the same by taking up and moving the rails and ties on the road between Dalhart and Wil-coe, declaring their purpose to be to use the material in the construction of a road from Higgins, in Lipscomb county, to the town of Ochiltree. They have not organized a railway company, and have not received a charter to build a railroad from Higgins to Ochil-tree.

The suit was tried before the court without a Jury In tile district court of Travis county, and resulted in a Judgment in favor of tlie state, perpetually enjoining the defendants in error from dismantling said railroad. On appeal to the Court of Civil Appeals for the Third District the judgment was reversed and rendered. 181 S. W. 498. On application therefor by the state a writ of error was by this court granted.

The purposes and objects of said railway corporation', as expressed in the articles of incorporation, were to “permit, construct, maintain and operate, by steam or other mechanical power,” a line of railroad between the town of Ochiltree and the town of Dalhart. The charter was granted by the state to the corporation, and accepted by it, for such purposes. The charter, when so issued and accepted, constituted a contract between the state and the railway company, and like other contracts its provisions and covenants are binding upon each party thereto; likewise they are binding upon the purchasers at receiver’s sale, the defendants in error herein. ’ Granting the charter by the state, conferred a valuable right upon the railway company, but such right was not granted as a favor,'but upon condition that the company would pay a valuable consideration to the state of Texas for the right granted, to construct, maintain, and operate a railway between the towns of Ochiltree and Dalhart. The permission to so construct the road, and enter the railway business, was given by the state of Texas, and the consideration paid therefor was, by promise made to the state by the railway company, to construct, maintain, and operate the railroad. By the terms of the contract the state procured for its citizens the benefits to be derived by the public from the use and operation of the railroad. The courts cannot absolve the defendants in error from this duty. The courts enforce contracts, but cannot nullify them. Upon the contrary they should lend their aid in the enforcement of their provisions. Only by consent of the parties could the contract be modified so as to relieve the defendants in error from their obligation to maintain and operate the road, and not to move the track. The Legislature might have power to consent in behalf of the state to such alteration of the contract, but this court cannot exercise such authority. It may be, as ably contended by the defendants in error, that the courts cannot compel the operation of a railroad when it is financially unable to operate it. If so, the courts might refuse to require the operation of the road, which question we need not decide, but it would not be on the ground that the defendants in error, have a right to refuse to discharge the duty resting upon them to faithfully comply with their contract to operate the road, but would be because the courts are impotent to enforce the contract on account of the insolvency of- the corporation. The purchasers took it charged with the duty not to ¿move the main track. In the present ease they assert the right to move the track. When the old company accepted the charter they impliedly consented to be bound by the provision of law to the effect that they would not move it. When the plaintiffs in error purchased the road and its franchises they became likewise obligated. We think they are bound by contract and by statute law not to move any portion of the main track, and that since they are attempting to do so they should be enjoined to desist therefrom. By the terms of article 6625, Vernon’s Sayles’ Civil Statutes, it is provided, in substance, that the “main track” of any railroad once constructed and operated shall not be “abandoned or moved.” We think the defendants in error should not be permitted to take up the rails and ties in violation of said statute.

It is contended that to prohibit the defendants in error from moving their track, since they are unable to operate the road, would be to deprive them of property without due process of law. We think this contention is without merit. When the charter was granted and accepted the law provided that they should not move any portion of the main track once constructed. The railway company and its owners accepted the charter subject to that law, and impliedly consented to obey it. They must be held to have so contracted when the charter was issued and accepted. Their successors, the defendants in error, are in the same attitude, not being permitted by statute to purchase the property without also accepting the franchise of the sold-out company, with its attendant obligations. Texas Southern Ry. Co. v. Harle, 101 Tex. 182, 105 S. W. 1107; Gulf, Colorado & Santa Fé Ry. Co. v. Morris, 67 Tex. 700, 4 S. W. 156; Gulf, Colorado & Santa Fé Ry. Co. v. Newell, 73 Tex. 338, 339, 11 S. W. 342, 15 Am. St. Rep. 788; State v. Sugarland Ry. Co. (Civ. App.) 163 S. W. 1047; I. & G. N. Ry. Co. v. Anderson County, 100 Tex. 60, 156 S. W. 499. In this view we think it could not be successfully contended that the state is depriving the defendants in error of the use of their property without due process of law, in refusing to allow the main track to be dismantled. We overrule this contention, as we do the other contentions' so ably argued by the defendants in error, under several assignments and propositions, to the effect that since the operation of the railroad will always be financially impossible, the track should not be held to be the “main track” of a railroad once constructed. The main track of a railroad once constructed, as this one was, would not lose its entity as such main track, because of insolvency.

We are of opinion that to remove the track to other counties for the purpose of use in the construction of another railroad, or to be used at the east end of the same proposed line, would be a removal of the main track, within the meaning of the statute which interdicts the removal.

Tlie Judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is in all things affirmed.
      iSfacForiother cases see same topic arid KEY-NUMBER in;all Key-Numbered Digests and Indexes

      <&=oFor other oases see same topic and KEY-N UMBER in all. Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    LAURAINE v. ASHE et al.
    (No. 2794.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)
    1. Abatement and Revival <&wkey;G3 — Death of Defendant.
    Under Rev. St 1911, art. 1888, providing that suit shall not abate because of defendant’s death, but that suit may proceed against his administrator, defendant’s death and administration of his estate does not abate a suit against him and require a new proceeding upon the claim in the probate court.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 320, 321; Dec. Dig. &wkey;63.]
    2. Abatement and Revival <&wkey;77 — Judgment in Suit Pending at Decedent’s Death.
    Under such statute, where administration is had upon defendant’s estate, the proper practice is to certify a judgment rendered in suit pending against defendant at his death to the probate court, to be paid in the course of administration.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 488-494; Dec. Dig. &wkey;77.]
    3. Abatement and Revival <&wkey;77 — Continuance of Action — Judgment — Lien on Property.
    Where the pending suit involves liens upon property given to secure the indebtedness sued on, the proper practice is to certify to the probate court the judgment establishing a lien, for it to be executed there through a sale of the property.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 488-494; Dee. Dig. &wkey;77.]
    4. Courts &wkey;>478 — Exclusive Jurisdiction-Property in Custody of Law — Receivers.
    When a court of equity, in a cause of which it has jurisdiction, takes possession of property through a receiver, the property is withdrawn from the jurisdiction of all other courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §| 1261-1207; Dec. Dig. &wkey;478.]
    5. Receivers <&wkey;60 — Continuation of Receivership.
    So long as a court of equity has jurisdiction of a cause giving it the right to take possession of property through a receiver, it has the power, whether rightfully or wrongfully exercised, to continue the receivership.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 105-107; Dec. Dig. &wkey;60.]
    0. Receivers <&wkey;29(l) — Power of Court to Appoint.
    The power of a court to appoint a receiver of property proceeds from its jurisdiction of a cause, and is an element of it.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 38-41; Dec. Dig. &wkey;29(l).]
    7. Receivers &wkey;>60 — Continuation of Receivership.
    Whether a receivership should be continued is to be governed by the necessities of the case as related to the rights of the parties, and, so long as the court maintains jurisdiction of the cause, this is a question of judicial discretion, and not one of judicial power.
    [Ed. Note. — For other eases, see Receivers, Cent. Dig. §§ 105-107; Dec. Dig. <&wkey;60.]
    8. Mandamus <&wkey;28 — Judicial Discretion-Control.
    The exercise of judicial discretion is not subject to control by mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 64; Dec. Dig. &wkey;>28.]
    9. Mandamus &wkey;>172 — To Compel Vacation of Receivership — Scope of Inquiry.
    In mandamus to vacate receivership as to certain property, the court will not inquire whether the order appointing the receiver was providently made, where the court appointing the receiver had jurisdiction to do so.
    [Ed. Note. — For other eases, see Mandamus, Cent. Dig. §§ 381-385; Dec. Dig. &wkey;172.]
    10. Receivers &wkey;>55 — Appointment — Validity.
    An order appointing a receiver is not invalidated by an error in the exercise of the court’s power to make such appointment.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 94, 400; Dec. Dig. <&wkey;55.]
    11. Receivers <&wkey;C0 — Termination—Right of Administrator — Possession of Decedent’s Property.
    Where, in lifetime of a debtor, a receiver was appointed by district court for her property, to preserve it and adjust conflicting claims, the district court’s right to possession of the property through its receiver did not pass on her death to her administrator, by virtue of Rev. St. 1911, art. 3235, as to administrator’s right to possession, in the absence of showing the absence or loss of jurisdiction of the court appointing the receiver, as by termination of suits, etc.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 105-107; Dec. Dig. &wkey;60.]
    12. Executors and Administrators <&wkey;38— Right of Administrator to Possession.
    , Rev. St. 1911, art. 3235, providing that the administrator of an estate of a decedent shall have the right to the possession of the estate “as it existed at the death of the intestate,” does not authorize an administrator to assume possession of property not in the possession of decedent at the time of his death and to the possession of which he was not then entitled.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 323; Dec. Dig. <&wkey;> 38.]

      13. Courts &wkey;>472(4) — District Court — Ancillary Probate Jurisdiction.
    Although the Constitution, in broad and general terms, confers jurisdiction upon the county court for the transaction of “all business appertaining to deceased persons, * ⅜ * including the settlement, partition, and distribution of estates of deceased persons,” it also confers, in terms equally broad, an equity jurisdiction upon the district court, which may be resorted to, notwithstanding an administration in a county court, for the determination of questions that may arise affecting estates in the regular course of administration, requiring, for illustration, the adjustment of equities, for the settlement of which the probate jurisdiction of the county court is inadequate; this jurisdiction being auxiliary and ancillary to . that of the probate court and in some extraordinary instances corrective.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1204; Doc. Dig. &wkey;472(4)J

      14. Coukts <&wkey;35 — Presumption—Jurisdiction of Courts.
    An exercise of jurisdiction by the district court is presumed rightful, in the absence of showing- to the contrary.
    • [Ed. Note — For other cases, see Courts, Cent. Dig. §§ 140, 141, 145, 146; Dec. Dig. &wkey;35J
    15. Executors and Administrators <&wkey;333— Sale of Property of Decedent.
    Only the probate court has jurisdiction to sell, for the payment of debts, the property of a decedent upon whose estate administration has been commenced or is pending.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1372-1375; Dec. Dig. &wkey;>333.]
    1C. Courts <&wkey;472(4) — Sade of Property of Decedent.
    The rule that the jurisdiction of the probate court to sell, for the payment of debts, the property of an estate being administered, is exclusive, applies where a sale of property is made necessary by a judgment of the district court, in the exercise of its auxiliary jurisdiction over questions affecting estates being administered.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1204; Dec. Dig. &wkey;472(4).]
    Original petition for mandamus by W. Y. Lauraine against Chas. V. Ashe and others.
    Mandamus refused.
    Cooper & Merrill and Jno. G. Tod, all of Houston, for plaintiff. Williams & Neethe, of Galveston, for defendant Ashe. Gill, Jones & Tyler and H. N. Atkinson, all of Houston, for defendant Kittrell.
   PHILLIPS, C. J.

This proceeding has for its purpose the issuance of a writ of man, damus directing Honorable Ohas. E. Ashe, Judge of the District Court for the Eleventh Judicial District to vacate as to the property of Mrs. Margaret E. Allen a receivership pending in that court and order the delivery of such property into the hands of the relator as administrator of her estate.

The receivership is an incident of a suit originally filed in the District Court of Harris County in December of the year 1908 by tbe First National Bank of Whitney, Texas, in the lifetime of Mrs. Allen and against her and A. C. Allen, her son. In that suit the plaintiff asserted the ownership of a judgment against Mrs. Allen and A. O. Allen in an amount in excess of $7,000.00, and constituting a lien upon their real estate situated in different counties in the State. It was also there pleaded that Mrs. Allen and A. O. Allen were variously indebted to other persons in large amounts, such indebtedness being in some instances secured by mortgage liens upon their property and having in others been reduced to judgment with the judgments operating as liens upon their real estate; that the amounts of such indebtedness so secured consisted largely of grossly usurious interest, causing tbe property to appear incumbered for a much larger amount than the actual indebtedness, which tended to depreciate its value. Further, that the various creditors of the Allens were threatening to proceed against their property for the enforcement of their claims, through foreclosure sales, levying of execution, etc., which, if permitted would result in its sacrifice, whereas its actual value was more than double the amount of the entire lawful indebtedness against it; further allegations being made with respect to the necessity for the appointment of a receiver for the preservation of the property pending the establishment of the claims to which it was lawfully subject. The prayer was for the appointment of a receiver and an order directing the presentment by all creditors of the Allens of their respective claims for adjudication by the court; that the court determine and adjudge the amounts really due upon such claims, and thereafter under its direction so much of the property he sold as should be necessary for their payment.

Upon this prayer a receiver was duly appointed. He qualified, and took into possession certain real and personal property belonging to Mrs. Allen and A. C. Allen for the purpose of preserving it. This suit, with the receivership yet in force, is now pending.

Some years after all of these proceedings Mrs. Allen died. The relator was appointed temporary administrator of her estate by the County Court of Harris County and duly qualified as such. Later, he was appointed and qualified as permanent administrator. This appointment was contested, and the contest is now pending in the District Court on appeal, as yet undetermined, the County Court having continued the powers of the relator as temporary administrator in the meanwhile.

Before resorting to this court the relator, as temporary administrator of Mrs. Allen’s estate, presented a motion in the District Court suit reciting the probate action of the County Court and upon various grounds asserting .that as to the property of Mrs. Allen the receivership should be vacated and the property delivered into his custody. This motion was considered and overruled, the court being of the view that since it had acquired jurisdiction of the property in the lifetime of Mrs. Allen, it was entitled to hold the possession through its receiver. No attempt to appeal from this order was made.

The answer to the petition for mandamus, filed by the receiver alone, states that in the District Court • suit various interventions have been filed by creditors of Mrs. Allen and A. C. Allen, seeking the establishment of debts and mortgage liens against the property held by tbe receiver. It also appears that prior to the death of Mrs. Allen various controversies were pending in relation to different claims involved in the suit.

We are of the opinion that the writ should be refused. As to claims in suit at the time of the death of a defendant, the action does not abate upon his death. If administration he regularly had upon his estate, his administrator may be made a party and the suit he prosecuted to judgment, the proper practice in such cases being to certify the judgment to the probate court to be paid in the course of the administration. Article 1888, Revised Statutes; Boone v. Roberts, 1 Tex. 149; Low v. Felton, 84 Tex. 378, 19 S. W. 693. Where such a suit involves liens upon property given to secure the indebtedness sued on, this is likewise the rule. The death of the defendant pending the suit does not abate it and require, in the event of administration, a new proceeding upon the claim in the probate court. The administrator may be made a party and the cause proceed to judgment establishing the debt, and the lien as an incident of it, the judgment to be certified to the probate court and there executed through a sale of the property.

It is furthermore essentially true that when a court of equity in a cause of which it has jurisdiction takes possession of property through a receiver, the property is withdrawn from the jurisdiction of all other courts; and so long as its jurisdiction of the cause subsists, the court has the power, whether rightfully or wrongfully exercised, to continue the receivership. The power of the court to appoint the receiver proceeds from its jurisdiction of the cause and is an element of it. Jurisdiction of the property lawfully acquired may be maintained and exerted as a means of aiding and completing the exercise of its jurisdiction over the cause and giving effect to its judgment upon the rights involved. While the jurisdiction of the cause continues, therefore, the power of the court in respect to the receivership alike continues. Whether the receivership should be continued is to he governed by the necessities of the case as related to the rights of the parties. But so long as the court maintains its jurisdiction of the cause, that is a question of judicial discretion; it is not one of judicial power. The exercise of judicial discretion is, of course, not subject to control by mandamus.

It is apparent from the answer to the petition for mandamus that action upon some of the claims was pending in the District Court at the time of the death of Mrs. Allen. As to none of them is the contrary made to appear from the petition. So far as the petition reveals, these interventions, as well as the plaintiff’s claim, are still pending. The death of Mrs. Allen did not abate the suit as to any of the claims asserted against her upon which action was then pending. Nor would a permanent administration upon her estate, if finally perfected, have that effect. As to such claims, if the administration be perfected, her administrator may be made a party and the cause proceed to judgment establishing the claims and the liens incident to them, if entitled to be established. It is not made to appear from the petition, therefore, that the District Court has lost its jurisdiction of the cause as it related to the liability of Mrs. Allen upon any of the various claims involved.

The receivership was perfected and the District Court’s jurisdiction of the property acquired during the lifetime of Mrs. Allen. Whether the order appointing the receiver was providently made will not be inquired into here. The court had jurisdiction of the cause and. the power, inherent in a court of chancery, to appoint the receiver. An error in the exercise of the power would not invalidate the order. It does not appear, as already stated, that the court’s jurisdiction of the cause as related to the liability of Mrs. Allen upon the several claims is at an end. So far as the status of the different claims asserted against her is revealed by the petition, the court still has the authority to establish them as valid claims against her estate. With this jurisdiction yet subsisting, its authority to hold possession of the property involved, acquired in the lifetime of Mrs. Allen as an incident of that jurisdiction, still continues as a part of its power to hear and finally determine the cause. Nothing else could be the rule as to jurisdiction which has been lawfully acquired. Jurisdiction thus invested may be fully exerted in relation to all the subject^ of it, and during its exercise cannot be invaded or interfered with by other courts.

Further, the statute provides that the administrator of an estate of a decedent shall have the right to the possession of the estate “as it existed at the death of the intestate.” Article 3235. This does not authorize an administrator to assume possession of property not in the possession of the decedent at the time of his death and to the possession of which he was not then entitled. This has been distinctly held, with the ruling approved by this court, in respect to property pledged by a decedent in his lifetime and lawfully in the hands of the pledgee at the time of the decedent’s death. Fulton, Adm’r, v. Bank, 26 Tex. Civ. App. 115, 62 S. W. 84. For the same reason an administrator is not entitled to the possession of property lawfully held by the District Court through its receiver at the time of the decedent’s death, and in respect to which its jurisdiction is not exhausted.

In another respect it is not made to clearly appear, — as it must be before this court is authorized to issue a mandamus against the District Judge, — that the jurisdiction of the District Court over the pending suit in respect to the claims asserted against Mrs. Allen, is at an end. Jurisdiction for the transaction of “all business appertaining to deceased persons, * * * including the settlement, partition and distribution of estates of deceased persons,” is by the Constitution conferred upon tlie County Court in broad and general terms. But the equity jurisdiction of- the. District Court is conferred by the same instrument in terms equally broad. While it is customary to speak of the jurisdiction of the County Court over matters relating to estates of deceased persons under administration as “exclusive,” and the entire current of our judicial decisions is to carefully protect the jurisdiction of that court over such matters, as it ought to be, yet it is plainly recognized that questions may arise affecting estates in regular course of administration, requiring, for illustration, the adjustment of equities, for the settlement of which the probate jurisdiction of the County Court is inadequate, and in such cases, notwithstanding the administration, resort may be had to the equity powers of the District Court for the determination of those questions, the judgment to be performed through the Probate Court. This is a jurisdiction auxiliary and ancillary to that of the Probate Court. In some extraordinary instances it may be corrective. It is to be exercised only in special cases, but it nevertheless exists. Cannon v. McDaniel, 46 Tex. 303; George v. Ryon, Administrator, 94 Tex. 317, 60 S. W. 427; Western, etc., Mortgage Company v. Jackman, Admr., 77 Tex., at page 626, 14 S. W. 305; Groesbeck v. Groesbeck, 78 Tex. 669, 14 S. W. 792; Pomeroy’s Eq. Jur. Vol. 3, § 1154, pp. 2283-2294.

The petition of the relator does not disclose the nature or the status of the controversy in respect to any of the claims involved in the District Court suit. For aught we are advised issues may have arisen and may now be pending in connection with these claims for the determination of which the powers of the Probate Court are inadequate and its methods imperfect, and as to which, accordingly, the jurisdiction of the District Court is clear and undoubted. Upon such a showing, affording us no means for determining whether or not the District Court is in this respect exercising a lawful authority, we would not be justified in disturbing its jurisdiction by ousting its possession of property which we must assume was rightfully held by it at the time of Mrs. Allen’s death and to which its equity powers may still extend.

To make our ruling plain, it is to be understood that only the Probate Court has jurisdiction to sell for the payment of debts the property of a decedent upon whose estate administration has been commenced or is pending. Rogers v. Kennard, 54 Tex. 30; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Atchison v. Smith, 25 Tex. 228. Our holding is made with clear reference to the want of such power in the District Court. As applied to the character of case last discussed, — where, notwithstanding a pending administration, the jurisdiction of the District Court may be availed of for the settlement of questions affecting the estate which the powers of the Probate Court are inadequate to determine, this is also the rule. The judgment in such a case is to be performed through the Probate Court, and if a sale of property is necessary to its performance it must be made by that court. Cannon v. McDaniel, supra. An attempted exercise of this power by the District Court is not here involved ; nor, with administration upon the estate of Mrs.-Allen commenced, is it to be assumed that its exercise will be attempted. The present case concerns alone a jurisdiction which is entirely distinct from such power, and which, from aught that here appears, may be properly exercised by the District Court.

Our holding is that the District Court has the power to maintain in the suit there pending its possession of the property through the receiver until its jurisdiction over the cause is at an end; and as it is not made to appear here that that jurisdiction is exhausted, this court will not issue a mandamus to oust its possession of the property.

It is not necessary to consider the question of whether an appeal lay from the District Court’s order overruling the relator’s motion to vacate the receivership, supplying that as his proper remedy rather than a mandamus proceeding.

The mandamus is refused.
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author: MOURSTJND, J.

text:
    PEASE et al. v. RANDLE et al.
    (No. 5758.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1917.)
    1. Homestead <&wkey;108 — Exemption—Other Secukity.
    Where a debt against the homestead was secured by a lien thereon, and also by an assignment by the debtor of a judgment in his favor against a third person, the incumbrancer not only had the right to apply the judgment to the payment of his debt, but was required by law to do so at the debtor’s request before he could have sale of the homestead by virtue of the vendor’s lien, and his right to the judgment was superior to a right of set-off in favor of the judgment debtors accruing subsequent to the assignment.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 167; Dec. Dig. &wkey;U0S.]
    2. Judgment <&wkey;439 — Set-Oee Against Judgment — Rights oe Partees.
    Where a judgment is rendered for one person against another, who in turn has judgment over against others, and the judgment creditor assigns his judgment to secure a debt, if the ultimate judgment debtors desire to protect themselves against the principal judgment creditor, against whom they have claims, they should pay the amount of the judgment into court and pray for adjudication of rights of all parties.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 830-835; Dec. Dig. <&wkey;>439.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by Clark Pease and others against J. J. Randle and others. Decree for defendants, and complainants appeal.
    Affirmed.
   MOURSTJND, J.

Clark Pease, S. Gugen-heim, and H. Colin on December 14, 1915, sued J. J. Randle and C. U. Yancey, alleging that on February 21, 1914, in cause No. 4308, styled J. J. Randle v. Adams & Garrett et al., in the district court of Nueces county, said Randle recovered a judgment against William Adams for $4,998.66, and interest from date at the rate of 6 per cent, per an-num, and in said suit said Adams recovered over and against plaintiffs herein a judgment for said amount so recovered against him; that said judgment is unpaid and is owned by said Randle; that plaintiffs and said Adams are solvent and have property within the state subject to execution sufficient to satisfy said judgment; that, if Adams is forced to pay said judgment or it is collected by execution against him, he will be entitled to execution against plaintiffs and to have their property sold; that Randle is the owner of or has a beneficial interest in said judgment, subject only to an alleged conditional assignment to defendant Yancey, purporting to have been executed on June 4, 1914, upon the condition that if Randle shall pay $5,000, purporting to be evidenced by five vendor’s lien notes dated December 23, 1911, due respectively three, four, five, six, and seven years after date, with interest at S per cent, per annum, said assignment to be null and void, reserving, however, 25 percent. of said judgment in said assignment.

Plaintiffs further alleged the lien on the real estate amply secures the payment of said five notes, and that the assignment was made as a sham and subterfuge to place said judgment beyond the reach of creditors of Randle, and for the purpose of avoiding the payment of the debts and claims of plaintiffs against Randle; that Randle is insolvent; that plaintiffs have reason to believe and do believe, and therefore charge, that defendants are about to transfer and dispose of said judgment; that plaintiffs are the legal and equitable owners of a judgment for $809.70, bearing interest at the rate of 10 per cent, from August 19, 1913, rendered in county court of Calhoun county in favor of First National Bank of Port Lavaca against said Randle, and are the owners of a promissory note for $891.35 signed J. J. Randle and Mamie H. Randle, dated August 24, 1914, payable six months after date to McMurray Lumber Company, and two notes, one for $250, dated April 5, 1912, and the other for $219.35, dated March 8, 1912, each due on demand, payable to the order of First National Bank of Port Lavaca; that the indebtedness above described had been acquired by plaintiffs subsequent to the date of said judgment in favor of Randle; that Randle has failed and refused to pay said indebtedness; that plaintiffs are entitled to have the same set off against said judgment in favor of Randle; and that unless the court adjudges that this be done plaintiffs will lose their debt against Randle.

Plaintiffs further alleged that in cause No. 4902, styled City National Bank v. J. J. Randle and G. R. Scott, a writ of garnishment was issued pn November 7, 1914, and served upon plaintiffs and William Adams, alleging a judgment against Randle on which there was due $1,386.70, and commanding plaintiffs and said Adams to answer what they owe said Randle, and they are thereby restrained from paying the said judgment directly or indirectly, and unless execution is restrained plaintiffs will be subjected to the payment of the amount garnisheed in addition to the judgment rendered against them; that plaintiffs will suffer irreparable loss, or which they have no adequate remedy at law, unless an injunction is granted. Plaintiffs prayed for judgment for the amount of their notes, and that such amount and the judgment they hold against Randle be offset against Randle’s judgment, and that pending a final hearing defendants be restrained from collecting or attempting to collect said judgment or causing execution to issue thereon and from transferring or disposing of the same.

The district judge in vacation granted the injunction as prayed for, except in so far as it may pertain to the 25 per cent, attorney’s fees theretofore assigned by Randle to attorneys of record in cause No. 4308 in district court of Nueces county.

The defendants filed answers and motions to dissolve the temporary injunction. The motions to dissolve were granted in vacation, and the court in the order fully stated the facts as disclosed by the answers and the evidence in the following portion of the decree:

“It appearing to the court that on the 29th day of December, A. D. 1915, defendant J. J. Randle filed herein his answer under oath denying all the material allegations of plaintiffs’ bill for the writ of injunction filed herein on the 14th day of December, 1915, and that thereafter, on the 29th day of December, A. D. 1915, said J. J. Randle filed his said motion to dissolve said injunction now heard by the court, that on January 4, A. D. 1916, defendant O. U. Yancey filed herein his answer, under oath, denying all the material allegations of plaintiffs' petition for the writ of injunction, and that thereafter on, to wit, January 4, A. D. 1916, said defendant O. U. Yancey filed his said motion to dissolve said injunction, now heard by the court, and it appearing from said answers, motions, and the evidence adduced before the court by defendants in support of said motions that on the 4th day of June, A. D. 1914, defendant J. J. Randle made, executed, and delivered to defendant O. U. Yancey an assignment in writing of the interest of said J. J. Randle in said judgment in said cause No. 4308, J. J. Randle v. Adams & Garrett et al., district court, Nueces county, Tex., less 25 per cent, attorney’s fees, which said assignment was filed with the clerk of the district court of Nueces county, Tex., in said cause, on June 6, 1914, and noted on the docket of this court, and it further appearing that on the 14th day of January, A. D. 1916, there was filed in this cause an agreement in writing between the plaintiffs, Clark Pease, S. Gugenheim, and H. Cohn, by their attorney of record, and John A. Pope, H. R. Sutherland, and James M. Taylor, under and by the terms of which it was admitted that John A. Pope, H. R. Sutherland, and James M. Taylor had a written contract with J. J. Randle conveying unto them a one-third interest in any amount that might be recovered by the plaintiff in cause No. 4308, J. J. Randle v. Adams & Garrett et al., aforesaid, and that the writ of injunction heretofore issued in this cause should be modified so as to exclude from the restraint of said injunction the said interest of the said John A. Pope, H. R. Sutherland and James M. Taylor, and that by an order of the court made and entered m said cause on the 14th day of January, A. D. 1916, said injunction was so modified in accordance with said agreement, and it further appehring that by an instrument in writing filed in this cause on the 6th day of January, A. D. 1916, it was agreed by and between C. U. Yancey, one of the defendants herein, J. J. Randle, one of the defendants herein, and Pope & Sutherland, as attorneys for the aforesaid owners of said one-third interest in said judgment, and Mrs. G. R. Scott and Lueile S. Pope, joined by her husband, W. E. Pope, that defendant O. Ü. Yancey has a valid assignment of said judgment in its entirety, amounting to $4,998.66, with interest at 6 per cent., less a one-third interest therein, which had been so previously assigned to said Pope & Sutherland, a firm composed of J. A. Pope and H. R. Sutherland, and that said O. U. Yancey is entitled to have paid to him all the balance of said money accruing from said judgment, according to said assignment, and that said Mrs. G. R. Scott and Lueile S. Pope, as representatives of the estate of G. R. Scott, deceased, have fixed a valid garnishment lien upon the remainder of said funds, if any, after the payment of the interest of the said O. U. Yancey, as fully appeal's from the copies of said agreement filed respectively in cause No. 4308, J. J. Randle v. Adams & Garrett et al., and in cause No. 5661, Clark Pease et al. v. J. J. Randle et al., and that said assignment of said judgment so made by said Randle to said Yancey was made in good faith and for a valuable consideration, and that same was executed and filed, as prescribed by law, before the acquisition of the claims and indebtedness by plaintiffs described in their petition herein and which they therein seek to set off against said judgment, and that Mrs. G. R. Scott and Lueile S. Pope, as representatives of the estate of G. R. Scott, deceased, sued out, and caused to be served, writs of garnishment against the defendants in said cause No. 4308, J. J. Randle v. Adams & Garrett et al., before the acquisition of said claims by plaintiffs, and that said assignment to said Yancey was made and the lien of said garnishment obtained long before the filing of the petition herein, and that the aggregate of the claims of said Yancey, John A. Pope, H. R. Sutherland, and James M. Taylor, and Mrs. G. R. Scott and Lueile S. Pope, is in excess of the total amount of said judgment, and that each and all of said claims are valid claims and liens, and it further appearing to the court that said assignment so made by said Randle to said Yancey was made upon the express condition that, if said J. J. Randle and wife, M. H. Randle, should pay to said Yancey five certain Vendor’s Lien notes for the sum of $1,000 each, bearing 8 per cent, interest, all dated December 23, 1911, and due three, four, five, six, and seven years from said date, and secured by the vendor’s lien on three and a fraction lots in the town of Port Lavaca, in Calhoun county, Tex., known as the Hotel La Vaca property, as fully shown by the deed of record in Book Y, pages 328 and 329, Deed Records of Calhoun County, Tex., then said assignment should become null and void, otherwise to remain in full force and effect, that said property was at the time of the execution of said assignment, continuously since has been, and is now the homestead of said J. J. Randle and wife, and has been continuously, and is now, used and occupied by them as such, and that none of said notes have been paid, and certain of said notes are due according to the face thereof, and all, by reason of failure to pay the notes maturing at maturity, according to the terms. thereof, have been declared due, it is the opinion of the court that said motions to dissolve said temporary injunction should be granted.”

Neither party has filed a brief, although the case has been on file in this court since May 18, 1916. Certain contentions were made by plaintiffs by way of exceptions to the motions to dissolve. We have considered these contentions, and find no merit therein.

The debt against the homestead being secured by lien thereon, and also by the assignment of the judgment made prior to the acquisition by plaintiffs of any claims asserted by them, Yancey not only had the right to apply -same to the payment of his debt, but was required by law to do so at the request of Randle or his wife before he could have any sale of the homestead by virtue of the vendor’s lien thereon. Interstate Bldg. Ass’n v. Tabor, 21 Tex. Civ. App. 112, 51 S. W. 300. The assignment of the judgment by Randle to Yancey and acceptance thereof by Yancey gave Randle and his wife the right to have the proceeds of the judgment applied to the payment of their debt on their homestead, and their rights in the matter could not be affected by the acquisition of claims thereafter by plaintiffs herein.

If plaintiffs desired to protect themselves in any rights they might have and to have the rights of the various parties determined in the judgment in favor of Randle, they should have paid the sum due on such judgment into court and prayed that the interests of all parties be adjudicated.

It is apparent, however, according to the findings of the court, that rights prior to those asserted by plaintiffs will require the application of all the funds which will be derived from the judgment in favor of Randle to the payment of claims other than those of plaintiffs.

The judgment is affirmed.
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author: FLY, C. J.

text:
    CORY et al. v. RICHARDSON.
    (No. 5763.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1917.
    Rehearing Denied Jan. 31, 1917.)
    1. Cotjets <&wkey;CC(7) — Teems—Extension.
    Under Rev. St. 1911, art. 1726, providing that, whenever any district court shall be in the midst of the trial of any cause when the time for expiration of the term, as fixed by law, shall arrive, the judge may extend the term of court until conclusion of such pending trial, the judge has absolute power to extend the term, even though the extension might have the effect of destroying the succeeding term, and where the December term was extended, and the February term convened during such extension, the judgment in the cause rendered on the extended term was valid.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 240-242; Dec. Dig. &wkey;66(7),]

      2. Courts &wkey;G6(7) — Term—Extension.
    The statute permitting extension of terms of court should be used only in cases of necessity, and not for the convenience of the trial judge, or for purposes of advisement on the case.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 240-242; Dec. Dig. &wkey;>66(7).]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Nelson Cory and others against E.R. Richardson. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    O. M. Fitzhugh and McCollum Burnett, both of San Antonio, for appellants'. Graham Dowdell and Bewright & Douglas, all of San Antonio, for appellee.
   FLY, C. J.

This suit was instituted by appellants against appellee to recover damages for breach of a contract in which appellants agreed to place certain land in a state of cultivation, and which'they were prevented from doing by a breach of the contract on the part of appellee. The cause was submitted to a jury on special issues, and upon the answers thereto judgment was rendered in favor of appellee.

The trial of the cause was begun on January 31, 1916, during a term of the district court of the Fifty-Seventh district of Texas, which term expired by law on February 5, 1916. That court is held only in Bexar county. and the February term thereof began on February 7, 1916. When the end of the December term was reached, the trial of this cause was in progress, and an order was entered by the trial judge extending the term until the trial of the cause was concluded. That order necessarily caused the extension of the December term to run into the February term of the court. The trial was concluded on February 18, 1916.

The sole error assigned is the action of the district court in extending the December term so as to run into and conflict with the February term of the court. The contention is that such action was void, and therefore that the judgment rendered in this case is null and void.

The extension of the term by the trial judge is based on Rev. Stats. art. 1726, which provides:

“Whenever any district court shall be in the midst of the trial of any cause when the time for the expiration of the term of said court, as fixed by law, shall arrive, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. In such case, the extension of such term shall be shown in the minutes of the court before they are signed. In case of the extension of the term of court, as herein provided, no term of court shall fail because thereof in any other county, but the term of court therein may be opened and held as now provided by law, when the district judge fails to appear at the opening of a term of court.”

The court in this instance strictly complied with the terms of that statute, and. the order of extension was valid and legal, and the trial of the cause correct and regular, unless the fact that one term of the court followed immediately after another rendered it illegal to extend the time of the December term of the court. No reason has been given why such order would be invalid, nor has any been discovered by this court. The statute is broad enough in its terms to authorize such extension, and there is no hint at a prohibition of such an order where the extension of a term will overlap another term. On the’ other hand, the statute clearly contemplates that such overlapping may occur, and provides a remedy for it where the overlapped term is to be held in a different county from the extended term. It is probable that no remedy for such conflict is made where both terms are held in the same county, because it was thought that the judge himself could and would provide for such emergency. The trial judge being given the absolute power to extend the term, the extension would be valid even though it had the effect of destroying the succeeding term. That order being legal and valid, the subsequent convening of the February term of court on the day fixed by law for its opening could not affect the validity of the order of extension. What effect the order of extension might have on the succeeding term is not a question in this case. If the order of extension and the convening of the new term, while the trial was in progress in the extended term, should conflict with each other, we should deem it more reasonable to sustain the order of extension rather than the convening of the new term.

The statute permitting extensions of the term was enacted to meet the necessities arising from an unfinished trial at the end of the term, and should be used only in cases of sheer necessity, and not for the convenience of the trial judge or for the purposes of advisement on the points of a case that has been tried. The statute is plain and gives authority for an extension only “whenever any district court shall be in the midst of the trial of any cause when the time for the expiration of the term of said court, as fixed by law, shall arrive.” In this case the court was “in the midst of the triai” of this cause when the December term expired, and it was within the discretion of the district judge to extend the term, even though the extension should overlap another term of the same court. The holding of two terms of the court at one and the same time is a novel and an anomalous proceeding, with which, however, we are not concerned in this case. The statute makes no provision for such action, nor seems to contemplate that it shall be done, but it does grant the right of extension, and that right will be unheld though it may interfere with a succeeding term of the court in the same county.

There is authority for two" judges trying different eases at the same time in the same court, but no authority for conducting two terms of the same court at one and the same time and place has been produced. We express no opinion in the matter, as it does not affect this ease.

The judgment is affirmed.
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author: JENKINS, J.

text:
    BRUEGGERMAN v. BRUEGGERMAN.
    (No. 5717.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 19, 1917.)
    Divorce <&wkey;184(5) — Review—Discretion.
    Where testimony of plaintiff, if believed, entitled her to divorce, and was corroborated by testimony of her mother, there being nothing to throw suspicion upon the veracity of the mother, refusal to grant divorce without hearing testimony of defendant is an abuse of legal discretion requiring reversal and remand.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 571; Dec. Dig. &wkey;184(5).]
    Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.
    Action by Wewe Brueggerman against Max Brueggerman. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Wright, Wynn & Harris, of San Angelo, and D. H. Doom and D. D. Pickrell, both of Austin, for appellant. Geo. Mendell, Jr., of Austin, for appellee.
   JENKINS, J.

Appellant brought this suit against appellee for divorce upon the ground of alleged cruel treatment, such as would render their living together as man and wife insupportable. The testimony of the appellant, if believed, showed that she was entitled to divorce. She was corroborated by her mother, and there is nothing in the record to throw suspicion upon the veracity of the latter’s testimony. At the conclusion of the evidence in behalf of appellant the court announced that he would not hear any testimony for the defense, hut would refuse the divorce.

In such cases it is within the discretion of the court to refuse to enter judgment in favor of the plaintiff, but this is a legal discretion and subject to review; and where, as in this case, the testimony is corroborated, and nothing appears to discredit the testimony of the corroborating witness, we do not think that the court could arbitrarily refuse the divorce. It may have been that such action of the court would have been justified had the testimony for the defendant been heard, but it was not.

For the reasons stated, the judgment of the trial court is reversed, and this cause remanded for a new trial.

Reversed and remanded.


text:
    SOUTHERN TRACTION CO. v. HAWKINS.
    (No. 5689.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1916.
    Rehearing Denied Jan. 24, 1917.)
    Appeal and Error <&wkey;1177(7) — Reversal— Insueeiciency oe Evidence.
    In an action against a street railroad by a party who drove his automobile in broad daylight against a moving street car, case reversed for a determination of the material issues of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4609; Dec. Dig. <&wkey;> 1177(7).]
    Appeal from McLennan County Court; George N. Denton, Judge.
    Action by B. W. Hawkins against the Southern Traction Company. From a judgment for plaintiff, defendant appeals.
    Case reversed and remanded.
    Nat Harris and Spell & Sanford, all of Waco, for appellant. Williams & Williams, of Waco, for appellee.
   JENKINS, J.

Appellant’s street car was being propelled south on Tenth street in the city of Waco in the daytime. Appellee, who was familiar with the operation of the cars on said street, was traveling west on Morrow street, at right angles to Tenth street. I-Ie drove his automobile against the street car, striking the same about the center or near the rear. His auto was injured by the collision. I-Ie alleged negligence upon the part of appellant: (a) In failing to ring the bell or sound the gong; (b) in traveling at a high and dangerous rate of speed; and (c) in failing to discover appellee in time to avoid the collision. The testimony as to these allegations was conflicting. Appellant, in addition to a general denial, alleged contributory negligence on the part of appellee. There was judgment for appellee for $350.

Perhaps one may drive an automobile in broad daylight against a moving street car without being guilty of contributory negligence, but that such was the fact in the instant case is not made to appear. The case was not as fully developed as it should have been. For instance, it appears that there was a house and some trees on the lot at'corner of Tenth and Morrow streets, but it does not appear whether or not these interrupted appellee’s view of the car on Tenth street. Appellee stated that he saw the street car when he was about the property line on Tenth street, but the evidence does not show the width of that street. Appellee says that he could have stopped his auto in about its length, but the testimony does not show the length of his car.

In order that material issues of fact may be determined by the trial court, this case is reversed and remanded.

Reversed, and remanded.
      ifozaFor other cases see same topic and ICEY-NUMBER.in all Key-Numbered Digests and Indexes


author: KEY, J.

text:
    CHATTANOOGA MEDICINE CO. v. LIGON et al.
    (No. 5708.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1916.
    Rehearing Denied Jan. 24, 1917.)
    Appeal and Error ©=»548(4) — Review—Motion to Reinstate — Bill op Exceptions.
    Where a motion to reinstate a case was not verified, and no statement of facts or bill of exception has been brought up showing that evidence to sustain its material averments was offered, a judgment overruling the motion will be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2439; Dec. Dig. &wkey;> 548(4).]
    Appeal from Falls County Court; F. S. Hefner, Judge.
    Action by the Chattanooga Medicine Company against T. H. Ligón and others. From a judgment of dismissal and a judgment overruling plaintiff’s motion to reinstate the case, plaintiff appeals.
    Affirmed.
    Page Collier, of Marlin, for appellant. Nat Llewellyn, of Marlin, for appellees.
   KEY, J.

This suit was commenced October 31, 1914, and on October 18, 1915, which was the first day of that term of court, the case was dismissed upon the defendant’s verbal motion for failure of the plaintiff to file a cost bond. The plaintiff filed an un-sworn motion to reinstate the case, setting forth nine reasons why it was claimed that the judgment of dismissal should be set aside. That motion was overruled, and the plaintiff has prosecuted this appeal, and is complaining of the action of the trial court in dismissing the case and in overruling the motion to reinstate.

We overrule appellant’s contention, and hold that the judgment should be afiirmed, among other reasons, because the record does not sustain the material averments made in the motion to reinstate the case. That motion was not verified, and if any evidence was introduced to sustain its aver-ments, no statement of facts or bill of exception has been brought up showing that such evidence was offered. For aught that we know, the material facts may have been the reverse of those alleged in the motion to reinstate the cause, and may have fully justified the order of dismissal.

No error has been shown, and the judgment is affirmed.

Afiirmed.


author: RICE, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. MILAM COUNTY.
    (No. 5711.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1917.)
    1. Bridges <&wkey;27 — Action eoe Injuries — Evidence.
    Where similar conditions are not shown to exist in two streams, evidence that a bridge spanning another stream had always withstood floods was not admissible in an action by a county for damages to its bridge caused by failure of railway company’s bridge to withstand flood.
    [Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. &wkey;>27.]
    2. Bridges <&wkey;27 — Action for Injuries — Evidence:
    Evidence that bridges spanning the same stream below and above the one in question withstood floods, where conditions of bridge and water are not shown to be similar, is not admissible to show strength of the bridge in question.
    [Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. <&wkey;>27.]
    3. Bridges <&wkey;27 — Action for Injuries — Instructions.
    In an action for failure to maintain substantial bridge which in a flood damaged a county bridge, an instruction limiting the railway company’s duty to constructing culverts, trestles, etc., sufficient to withstand such floods as could be reasonably foreseen from past history, was properly refused, as topography, area, and all other relevant facts should be considered.
    [Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. <&wkey;27.]
    4. Bridges <&wkey;27 — Conflicting Special Findings.
    In an action against a railway company for failure to maintain suitable bridge which in a flood damaged county bridge, special findings that the flood was unprecedented, that it was the proximate cause of the washing away of the railway bridge, but that the railway company could have reasonably anticipated the flood, were in conflict, and no judgment could be rendered thereon.
    [Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. 4&wkey;27.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by Milam County against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Henderson, Kidd & Gillis, of Cameron, for appellant. U. S. Hearrell, B. B. Pool, and Chambers & Baskin, all of Cameron, for ap-pellee.
   RICE, J.

For a number of years prior to April 22, 1915, appellant and the county of Milam had maintained two separate bridges across Elm creek in said county; appellant’s bridge being not far from and above that of the county. On the night of the 22d of said month it is claimed that the railroad bridge washed down against the county bridge, carrying it away, and this action is brought by the county to recover damages therefor, alleging that such damages were caused by the negligence of appellant in failing to leave sufficient openings in its roadbed across Elm creek valley, and in failing to properly construct its trestle. Appellant answered that the flood in question was unprecedented, and could not have been foreseen, and that such unprecedented flood was the cause of the damages complained of. There was a jury trial on special issues, resulting in a verdict and judgment in favor of appellee in the sum of $850, from which this appeal is prosecuted.

During the progress of the trial R. I. Bell, a witness in behalf of appellant, on cross-examination by appellee, was permitted to testify, over appellant’s objection, that appellant’s roadbed across Little river valley consisted practically of trestle, and without any dump or embankment, and that such trestle crossing Little river valley withstood the overflow in question, and has never been washed away or damaged within the knowledge of said witness, who had been connected with appellant’s road since June, 1913. Appellant objected to this testimony on the ground that it was immaterial, irrelevant, and prejudicial; and upon the further ground that Little river and Elm creek were entirely different streams, and the relative conditions of said streams were not. shown. These objections being all overruled, the witness testified as above stated, and this ruling constitutes the basis of the fourth assignment of error. We sustain this assignment. This testimony was irrelevant and immaterial, and, in our judgment, prejudicial to the rights of appellant. Before this testimony could have been admitted similar conditions must have been shown to exist as to the two streams, which was not done, for which reason we think the court erred in admitting this testimony. See S. A. & A. P. Ry. Co. v. Kiersey, 101 Tex. 513, 109 S. W. 862; M. P. Ry. Co. v. Mitchell, 75 Tex. 77, 12 S. W. 810; G., C. & S. F. Ry. Co. v. Caldwell, 102 S. W. 461, 462; M., K. & T. Ry. Co. v. Bell, 93 S. W. 198; Same v. McGregor, 68 S. W. 712; Green v. T., B. & H. Ry. Co., 79 Tex. 607, 608, 15 S. W. 686; G., C. & S. F. Ry. Co. v. Hockaday, 14 Tex. Civ. App. 613, 37 S. W. 477; 14 Ency. Evid. 41; 17 Cyc. 275-278.

Another issue involved in this suit was whether or not the county bridge would have been washed away by this flood, even if appellant’s bridge had not struck it; and appel-lee was permitted to show by the witness Barrett, over appellant’s objection, that a bridge on this creek, about a mile and a half above the bridge in question, and another on the same creek, about a mile and a half below it, were not washed away during this flood, but that they were standing intact immediately thereafter. Appellant objected to the introduction of this testimony on the ground that the relative conditions surrounding said other two bridges and the bridge in question, and the relative strength of said bridges and the bridge in question, were not shown. Without such proof this. testimony was improperly admitted. See authorities above cited.

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

“Negligence is the want of ordinary care, or the want of such care as a person of ordinary prudence would exercise under the same or similar circumstances. A railway company, in constructing its roadbed and trestle across a stream or the valley thereof, is required to leave only such necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof in time of such floods as can be reasonably foreseen or anticipated from the history of such stream, and to construct its bridge or trestle in a manner sufficient to withstand such floods as could be reasonably foreseen or anticipated from the history of said stream,” etc.

This charge was properly refused, because it is too restrictive in this: That it limits the duty of appellant to the construction of such culverts, sluices, and trestle to such floods as can be reasonably foreseen or anticipated from the history of such stream; whereas, the law is that appellant is charged with the duty of taking into consideration not only the history of the stream, but also all other relevant facts and circumstances as well, such as the topography of the country, the area drained, etc.

Again, while not raised by any specific assignment of error, yet discussed in the brief, in passing we are inclined to suggest that the findings of the jury (the case having been tried on special issues) appear to be in conflict and irreconcilable; for which reason, it is contended, no judgment should have been rendered thereon in favor of ap-pellee. The court in its charge to the jury stated that “an unprecedented flood, as used herein, means a flood of such unusual occurrence in Elm creek valley as could not have been foreseen from the history of said stream by men of ordinary experience and prudence.” In reply to question No. 6, “Was the flood in Elm creek valley, of April 22, 1915, unprecedented in the suddenness of its rise and force, and in the rapidity with which it accumulated drift?” the jury answered, “Yes, it was.” And they likewise answered in reply to question No. 7 that such unprecedented flood was the proximate cause of the washing down of the bridge; yet they stated in answer to question No. 8 that defendant could have reasonably anticipated or foreseen the flood in question from the history of the stream, by the exercise of ordinary prudence and caution. If the flood was unprecedented, then it could not have been foreseen or anticipated. These findings were in conflict; and, such being the case, no judgment should have been rendered thereon. See Houston & Texas Central R. R. Co. v. Walsh, 183 S. W. 18, and authorities there cited.

We have considered the remaining assignments, and regard them as not well taken.

Believing that the court erred, for the reasons indicated, the judgment is reversed, and the cause is remanded for another trial.

Reversed and remanded.
      «g^jFor other cabes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS AUTO & SUPPLY CO. et al. v. MAGNOLIA PETROLEUM CO.
    (No. 5723.)
    (Court of Civil Appeals of Texas.
    Jan. 17, 1917.)
    1. Sales <&wkey;G8 — Bill oe Sale — Buying Accounts.
    The mere taking by transfer and bill of sale of the business and accounts of a person, without any assumption of indebtedness, will not make the transferee liable for antecedent debts growing out of the business.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 184-186; Dec. Dig. <&wkey;68.]
    2. Pleading <&wkey;8(6) — Conclusion oe Pleader.
    An allegation that a party “sold and transferred said business and accounts in violation of the bulk sales law” is a conclusion of the pleader.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 17; Dee. Dig. &wkey;j8(6).]
    3. Judgment <&wkey;101(l) — By Default — Petition — Insufficient Allegation.
    A petition which fails to state a cause of action will not support a judgment by default.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168, 170; Dec. Dig. &wkey;101(l).]
    Error from Travis County Court; Wm. Von Rosenberg, Judge.
    Action by the Magnolia Petroleum Company against the Texas Auto & Supply Company, H. B. Lyne, and others. From a judgment for plaintiff, the defendants named bring error.
    Reversed.'
    E. H. Ratcliff, of Ft. Worth, for plaintiffs in error. John W. Hornsby, of Austin, for defendant in error.
   RICE, J.

On December 20, 1915, the Magnolia Petroleum Company, a private corporation, brought this suit in the county court of Travis county, against the Austin Tire & Supply Company, H. E. Shepherd, W. E. Clark, J. J. Milstead, the Texas Auto & Supply Company of Ft. Worth, Tex., H. B. Lyne president, and H. B. Lyne individually, alleging: First, that during the months of August and September, 1915, as per itemized attached account, duly verified, it sold and delivered to the Austin Tire & Supply Company gasoline, etc., to the amount of $278.90, which account is still due and unpaid. Second, that on or about the 19th of September, 1915, said Shepherd and Clark, who were doing business under the firm name and style of the Austin Tire & Supply Company, sold and transferred the business of said company to J. J. Mil-stead, who thereupon assumed the payment of the accounts due by said Shepherd and Clark and the Austin Tire & Supply Company, and that said Milstead was accepted as successor to said business by said Texas Auto & Supply Company and H. B. Lyne individually. Third, that on or about the 18th of October, 1915, said Lyne, acting for himself and said Texas Auto & Supply Company, took a transfer and bill of sale of the business and accounts of said Austin Tire & Supply Company from said Milstead, thereby making himself and said Texas Auto & Supply Company liable for the debt of plaintiff, and, within a short time after said Lyne had secured said business and accounts from said Milstead, he, acting for the Texas Auto & Supply Company and himself individually, sold and transferred said business and accounts in violation of the bulk sales law of the state of Texas, etc., praying for citation and judgment for the debt, interest, and costs of suit. On January 4, 1916, after service, judgment for the amount claimed with interest was rendered by default against Lyne and the Texas Auto & Supply Company, and the case dismissed as to the other parties, from which judgment this writ of error is sued out; plaintiffs in error relying for reversal, as shown by their first two assignments and propositions thereunder, upon the insufficiency of plaintiff’s petition to support the judgment by default.

It will be observed from the allegations of the petition that liability is predicated against plaintiffs in error: First, on the ground that they had taken a transfer and bill of sale to the business and accounts of the Austin Tire & Supply Company from said Milstead; and, second, because within a short time after procuring said business and accounts, Lyne and the Texas Auto & Supply Company had sold and transferred said business in violation of the bulk sales law of the state of Texas. The petition fails to allege any assumption of said indebtedness by plaintiffs #n error, and fails to state any fact or circumstance from which such assumption can be inferred. The mere taking of a transfer or bill of sale by them is not enough upon which to predicate liability. Second, nor can liability be based on the mere statement that said business was sold and transferred in violation of the bulk sales law. The facts and circumstances upon which this claim is predicated are not set out, but the allegation in this respect is only the conclusion of the pleader. We think the petition is bad on general demurrer, for which reason no judgment-by default could be taken thereon. It is the well-settled law in this state that a petition which fails to state a cause of action will not support a judgment by default, and such judgment may be set aside on writ of error. See Wood v. City of Galveston, 76 Tex. 126, 13 S. W. 227; Ishmel v. Potts, 44 S. W. 616; American Bonding & Trust Co. v. Garrett, 61 Tex. Civ. App. 454, 129 S. W. 398; Interstate Ass’n v. Bryan, 21 Tex. Civ. App. 563, 54 S. W. 378; El Paso & S. W. Ry. Co. v. Kelly, 83 S. W. 855.

Numerous other errors are assigned, which it is unnecessary for us to consider, in view of our holding as to the insufficiency of the petition.

For the error indicated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      @s»For other cases.see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes