author: CONNER, C. J.

text:
    CITY NAT. BANK v. WATSON.
    (No. 8196.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 15, 1915.
    On Motion for Rehearing, July 3, 1915.)
    1. Justices of the Peace &wkey;>159 — Appeal-Bonds — Necessity.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. <S^159.]
    2. Justices of the Peace <&wkey;44r — Jurisdiction — Amount in Conteoveesy.
    In suits in a justice’s court to foreclose alien on personal property, the value of the prop'erty is the measure of the court’s jurisdiction.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2391, authorizing- appeals from justices’' courts to the county court, and requiring appellant, his agent, or attorney to file a. bond to be-approved by the justice and that when the bond has been filed the appeal shall be deemed perfected, the county court has no authority on appeal in the absence of an appeal bond duly filed and approved.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. ¡&wkey;>44.]
    3. Justices of the Peace <&wkey;44^-JuBiSDiction — Amount in Conteoveesy.
    In the absence of an allegation in the petition of the value of property on which plaintiff in justice’s court seeks to foreclose a chattel mortgage) jurisdiction of the court does not affirmatively appear, and an appeal to the county court must be dismissed.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. <&wkey;>44.]
    On Motion for Rehearing.
    4. Appeal and Error &wkey;>643 — Recobd — Transcript — Duty to File.
    Under Court of Civil Appeals rule 22 (142 5. W. xii), declaring that a cause will be properly prepared for submission only when a transcript of the record exhibits a case prepared for appeal in accordance with the rules, and filed in the court under the rules, with briefs of one or both parties, and that all parties will be expected before submission to show that the transcript is properly prepared, each party to an appeal is charged with the duty of seeing that the transcript is properly prepared before submission, and after submission the court will not permit the correction of the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. <&wkey;> 643.]
    5. Appeal and Error &wkey;>512 — Appeal to County Court — Jurisdiction.
    The jurisdiction of the county court on appeal from a justice’s court must affirmatively appear.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. <&wkey;>512.]
    6. Justices oe the Peace <&wkey;174r — Appeai>-Jurisdiction.
    Where plaintiff in justice’s court sued on a note, and for the foreclosure of a chattel mortgage securing it, without alleging the value of the mortgaged property, an amended petition not praying for a foreclosure of the mortgage, but not withdrawing the original prayer for foreclosure, could not be construed to show an abandonment by plaintiff of the claim for foreclosure so as to confer jurisdiction on the justice’s court, especially where it rendered judgment foreclosing the mortgage.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. 4&wkey; 174.]
    7. Appeal and Error <&wkey;1163 — Appeal—Jurisdiction — Disposition op Case.
    Where the county court on appeal from justice’s court does not obtain jurisdiction, the Court of Civil Appeals on appeal from the county court judgment will reverse the judgment and remand the case with directions to the county court to dismiss, unless necessary jurisdictional facts axe shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4524; Dec. Dig. <&wkey;1163.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Action by the City National Bank against O. P. Watson. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Earl Conner and Allen D. Dabney, both of Eastland, for appellant. J. R. Stubblefield and R. L. Rust, both of Eastland, for ap-pellee.
   CONNER, C. J.

The record in this case contains a transcript from a justice court in Eastland county showing that the appellant bank instituted suit in that court upon a note for §158.95, alleging that “the note was secured by a chattel mortgage on first three bales of cotton on entire crop for 1913 on O. P. Watson’s farm 16 miles east of Eastland; also rent cotton and one bay horse 11 years old, and about 16 hands high.” Certain credits were admitted, but the prayer was “for judgment for full amount sued for, interest and attorney’s fees, and for foreclosure of its chattel mortgage and for costs and judgment and special relief.” The justice’s transcript further shows that the defendant O. P. Watson presented a cross-plea for the sum of $198, alleged to be due by reason of the fact that he had been required to pay upon the note declared upon by the plaintiff usurious interest, entitling him to the amount specified in the cross-plea. But, as further appears from the justice’s transcript, the trial resulted in a judgment on April 2, 1914, against the defendant on his cross-plea, and in favor of the plaintiff for $19.47 with a foreclosure of the mortgage lien “as it existed on January 4, 1914," upon “three bales of cotton,” and also “upon one bay horse 11 years old, 16 hands high and unbranded.” Said, transcript further shows that:

“The defendant excepted to said judgment and gave notice of appeal to the county court of Eastland county, Tex., and requested that the transcript be made as provided by law, and that said cause be transferred to the county court as provided by law.”

The transcript was duly signed and certified to by the justice, who also attached an itemized statement of the costs.

The record before us further shows that a trial was had in the county court of East-land county and a judgment rendered on October 10, 1914, denying the plaintiff bank a recovery on its note and on its mortgage, and decreeing that the defendant should recover the sum of $98 on his said cross-plea. But neither the justice transcript, nor the transcript from the county court before us, shows that the appeal from the judgment in the justice court was prosecuted by giving an appeal bond, as required by law. The statute provides that appeals may be taken from final judgments in the justice court to the county court where the judgment or amount in controversy shall exceed $20, exclusive of costs (Vernon’s Sayles’ Tex. Civ. Stat. art. 2391), but further specifically provides that:

“The party appealing, his agent or attorney, shall within 10 days from the date of the judgment, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that the appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on such appeal. When such bond has been filed with the justice, the appeal shall be held to be thereby perfected,” etc. Article 2393.

The county court of Eastland county was without original jurisdiction in this case, and it could exercise no authority on appeal in the absence of an appeal bond duly entered into by the appealing party, as provided by the statute. The statutes provide that such bond when given shall be approved by the justice of the peace and forwarded, together with other original papers, to the county court with his transcript, and it is possible that in the case before us such a bond was given and duly filed, but it is not so shown, and nothing seems to have been more firmly established in our decisions than that the jurisdiction of the court entering the judgment shall be made to affirmatively appear. Otherwise, it is our duty to reverse the judgment. See Ware v. Clark, 125 S. W. 618; American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714, and cases cited. The judgment of the county court must, accordingly, be reversed with direction to the county court to dismiss the appeal in event its jurisdiction was not properly invoked by the giving of the bond required by the statute.

In reversing the judgment we also call attention to the fact that the pleadings in this case appear to have been in writing and filed in the justice court, and that therein is to be found ho allegation of the value of the property upon which the plaintiff sought to foreclose its mortgage, nor does the statement of facts in this case show the value of said mortgaged property. It is familiar law that in suits in a justice court to foreclose a lien upon personal property, the value of the property is the measure of the court’s jurisdiction. See Smith v. Carroll, 28 Tex. Civ. App. 330, 66 S. W. 863; Brown v. March, 149 S. W. 353.

In the absence, therefore, of an allegation of the value of the property upon which the plaintiff in this case sought to foreclose his mortgage, the jurisdiction of the justice court was not made to affirmatively appear. So that, had an appeal bond been given in this case, it would seem to have been the duty of the county court to dismiss the appeal. See Ware v. Clark, supra; Vicars v. Tharp, 174 S. W. 949.

It is accordingly ordered that the judgment herein be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

On Motion for Rehearing.

Appellee urges a rehearing, and to that end now seeks to correct the record before us by tendering a copy of the appeal bond in fact filed and approved in the justice court and transmitted to the county court together with the other papers by the justice of the peace, but which was omitted from the transcript to this court through an oversight of appellant’s counsel. To now so permit the correction of the record, by whomsoever the fault, would be in direct opposition to rule 22 (142 S. W. xii) for the court of Civil Appeals as amended and set forth by our Supreme Court in the case of H. & T. C. Ry. Co. v. Parker, 104 Tex. 162, 135 S. W. 369. As amended the rule reads;

“A cause -will be properly prepared for submission only when a transcript of the record exhibits a cause prepared for appeal in accordance with the rules prescribed for the government of the district and county courts, and filed in the court under the rules, with briefs of one or of both the parties, in accordance with the rules for the government of the court. All parties will be expected, before submission, to see that the transcript of the record is properly prepared, and the mere failure to observe omissions or inaccuracies therein will not be admitted, after submission, as a reason for correcting the record or obtaining a rehearing.”

It will be noted that by the rule each party to an appeal to this court is alike charged with the duty of seeing that the transcript is properly prepared before the submission of the cause; and an inquiry, therefore, of whose the fault or miscarriage that brought about a failure is wholly immaterial.

But if for any reason in this instance we could overlook the rule and follow the practice indicated in the case of Wells v. Driskell, 105 Tex. 77, 145 S. W. 333, the amendment of the record as now sought would avail appellee nothing, for the reason, as pointed out in our original opinion, that the transcript fails to show jurisdiction in the justice court, in that the value of the property upon which the plaintiff sought to foreclose a mortgage was not alleged, nor did such value otherwise appear, as was necessary. See authorities cited in our original opinion. The rule that the jurisdiction of the court from which an appeal has been prosecuted must be made to affirmatively appear, applies to the county court as well as to this court. See Merrick v. Rogers, 46 S. W. 370; T. & P. Ry. Co. v. Jordan, 83 S. W. 1105; Penn Fire Insurance Co. v. Pounders, 84 S. W. 666; Albritton v. First Nat. Bank of Mexia, 85 S. W. 1008; Bonner v. Legg & Tindall, 46 Tex. Civ. App. 176, 101 S. W. 839; Needham v. Austin Electric Co., 127 S. W. 904.

Appellee suggests that an amended petition filed in the justice court authorizes the conclusion that the plaintiff abandoned his prayer to foreclose the mortgage. But we have examined this paper, and while it is styled an amended petition and is without a prayer for a foreclosure of the mortgage, it is in its real nature a reply to the defendant’s answer, -and should have been designated as a supplemental petition. There was no express withdrawal of the original prayer for a foreclosure and the record manifests that there was in fact no abandonment of this feature of the plaintiff’s case, for, as affirmatively appears from the transcript from the justice court, the judgment of that court actually foreclosed the mortgage. So that we see no escape from the conclusion that we should deny appellee’s motion to amend the record.

Appellee insists, however, that in such event we should dismiss the appeal instead of reversing the judgment and remanding the cause, as we did on the original hearing. But we had occasion to consider this precise •question in the case of Ware v. Clark, 125 S. W. 618, cited in our original opinion, and there held that in cases like this the proper practice is to reverse the judgment and remand the case with instructions to the county court to dismiss the ease, unless the necessary jurisdictional facts are shown, if possible, in some legal way. We still think this the proper practice, and the motion for rehearing is accordingly in all things overruled.
      ®=nFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    CHAPMAN et al. v. WEAVER.
    (No. 6804.)

    (Court of Civil Appeals of Texas. Galveston.
    May 19, 1915.
    Rehearing Denied June 30, 1915.)
    Advebse Possession <&wkey;100 — Titus—Scope op Possession.
    Rev. St. 1911, art. 5676, declares that the ten years’ adverse possession which ripens into title shall not embrace more than 160 acres, including the improvements, or the number of acres actually inclosed should it exceed 160 acres, but that when possession is under some written memorandum of title, other than a deed, which fixes the boundaries of the possessor’s claim and is duly registered, such peaceful possession shall be coextensive With the boundaries specified in the instrument. Plaintiff, whose deed for 130 acres encroached on defendant’s land, went into possession up to the boundaries •of his deed, building some of his improvements on the land of defendant. Held that, notwithstanding his peaceful adverse possession for over ten years, plaintiff could not claim a full 160 acres of land; his possession being limited ■to the land included in his deed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. i&wkey;> 100.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by J. J. Weaver against J. R. Chapman and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue, of Houston, and Terry, Cavin & Mills, of Galveston, for appellants. John B. Warren, of Houston, for appellee.

       writ o£ error pending in Supreme Court.

   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellee against the appellants, J. R. Chapman and the Kirby Lumber Company, to recover a tract of 160 acres of land, a part of the Henry Cochran original survey in Newton county, and to restrain the defendant Kirby Lumber Company from cutting and removing •the timber from said land. The defendant Chapman answered by general demurrer and plea of not guilty and by cross-bill which •contains all of the necessary allegations of a petition in trespass to try title against the plaintiff to a tract of 1,536 acres on the Henry Cochran survey, being the north two-thirds of the east half of said survey and fully described in said cross-bill. The defendant Kirby Lumber Company answered by general demurrer, general denial, and plea of not guilty. The cause was submitted to a jury in the court below upon special issues, and upon the verdict returned by the jury judgment was rendered in favor of the plaintiff for 160 acres of land on the Cochran survey to be surveyed so as to include all of plaintiff’s improvements on said survey, and in favor of the defendant Chapman for all of the remainder of the land in controversy. Judgment was also rendered perpetuating the temporary injunction theretofore granted restraining the defendant Kirby Lumber Company from cutting and removing the timber from the 160 acres adjudged to plaintiff.

The only title attempted to be established by plaintiff was a limitation title under the ten-year statute.

The evidence shows that the Cochran survey adjoins the Stephen H. Everett league survey, the south boundary line of the Everett being the north boundary line of the Cochran. The defendants contended, and introduced evidence sufficient to sustain their contention, that this boundary line was located some distance south of the place which appellee contended was its true location. The correct location of this line was the first issue submitted to the jury, and the verdict fixed its location as claimed by plaintiff.

The evidence shows that in July, 1891, plaintiff and E. C. Brandon purchased from J. B. Scott et al. a tract of 130 acres of land described as follows:

“A part of the S. H. Everett headlight and part of a tract of land deeded by A. J. McKinnon and wife to S. H. Scott, on the 4th day of October, A. D. 1879, and deeded by S. R. Scott to Mrs. Hester Ann Scott on the 12th day of January, 1S85, and more particularly described as follows, to wit: Beginning at the S. E. corner of said Everett league a stake from which a sweet gum bears N. 68 deg. W. and a red oak brs. N. 30 deg. W. Thence N. 72 deg. W. with the S. line of a tract of land deeded by A. J. McKinnon to A. J. Rodgers.at 1,020 vrs. Rodgers S. W. corner in a slough from which a black gum 30 inches in diameter bears S. 81 deg. E. 7 varas and a red oak brs. N. 72 deg. W. 6 vrs. Thence down said slough with its meanders to the point where said slough is crossed by the south boundary of said Everett league. Thence N. 60 deg. E. with said league line to the place of beginning, containing one hundred and thirty acres of land, more or less.”

In November, 1891, Brandon conveyed bis interest in said 130 acres to plaintiff. Both of these deeds were duly recorded shortly after their execution.

In answer to a question submitted by the charge, the jury found that the south line of this 130-acre tract as actually surveyed and located on the ground was the line claimed by defendant as the south boundary line of the Everett league. This finding is supported by the great preponderance of the evidence, if not by the undisputed evidence. Plaintiff testified that he had a house built on this 130 acres in the fall of 1893 and went there to live in January, 1894. He supposed when lie had the house built that it was on the Everett league. After he moved on the place, he built a barn, some stables, and a shed. He has an inclosure of about three acres around his improvements, a portion of which is cultivated. He also has a field of about 35 acres some distance west of his home. This field lies mostly north of the south line of the Everett as fixed by the verdict of the jury, but it and all of the plaintiff’s improvements which have been on the place for ten years prior to the date of the filing of this suit, except one corner of the gallery of his dwelling house and possibly a small triangular piece of ground within his inclosure not exceeding one-half acre, are on the 130-acre tract. His field and garden and all other improvements which have been on the land for as long as ten years prior to the filing of the suit are north of the south line of the 130-acre tract. Shortly after plaintiff moved on the place, he learned that the south line of his 130 acres, as actually marked and located on the ground, was not the south line of the Everett as stated in his deed and that his dwelling house, outhouses, and a portion of his inclosed land were on the Cochran survey. The undisputed evidence shows that, after he made this discovery, he did not make any change in his inclosures or the character and extent of his actual occupancy and possession until less than ten years before this suit was brought.

Questions 4 and 5 submitted to the jury by the charge of the court were as follows:

“Question No. 4. Did the plaintiff, J. J. Weaver, at any time prior to the 15th day of May, A. D. 1903, and after he discovered that the Joe McDonald line was the true south boundary line of the Stephen H. Everett league (if he did discover that the Joe McDonald line was the true south boundary line of the Stephen H. Everett league), do anything that would lead or cause the true owner of the land to discover that inward intention of him, the said J. J. Weaver, to claim 160 acres of the Henry Cochran league? Answer this question ‘yes’ or ‘no.’ If you answer question No. 4 ‘yes,’ then answer question No. 5, but if you answer question No. 4 ‘no,’ then you need not answer question No. 5.
“Question No. 5. What did the plaintiff, J. J. Weaver, do that would lead or cause the true owner of the land to discover that inward intention of the plaintiff, J. J. Weaver, to claim 160 acres of the Henry Cochran league? Answer this question in your own words, and answer fully.”

To question 4, the jury answered, “Yes”; and to question 5, “Lived oh and cultivated.” We think it clear that the answers of the jury to these questions were not intended by them, and cannot be regarded as, a finding that there was any change in plaintiff’s actual possession and occupancy prior to May 15, 1903, which date was just ten years prior to the filing of this suit; and, as before stated, thé undisputed evidence shows that no such change was made.

We are of opinion that, upon the findings of the jury and the undisputed evidence, judgment should have been rendered in favor of defendant Chapman for all of the land claimed by him, except that portion included within the boundaries of the 130-acre tract described in plaintiff’s deed, and appellants’ assignments of error complaining of the refusal of the court to instruct the jury to return a verdict in favor of defendants except as to that portion of the land embraced within the boundaries of the 130-acre tract must be sustained. When one enters upon the land of another under a deed which he places of record, he cannot obtain title by limitation to any portion of the land not embraced within the boundaries of his deed and of which he is not in actual possession.

Under the ten-year statute of limitation, only 160 acres of land can be acquired unless the claimant has actual possession of a larger quantity; but, when such possession is taken and held under a deed or other recorded memorandum of title, the possession “shall be construed to be coextensive with the boundaries specified in such instrument.” Article 5676, Revised Statutes 1911. To construe this statute as extending but not restricting the claimant’s right to the land embraced within the boundaries of his deed is to give the word “coextensive” a meaning different from its ordinary one. If one finds a trespasser in possession of his land, he must take notice that such possession, if allowed to continue for a period of ten years, may ripen into title to 160 acres, and, if the trespasser has a larger quantity inclosed, to all of the land so inclosed. If such possession is taken and held under a deed, the owner must take notice that it will be extended by construction to the boundaries defined by the deed, and he may also rely upon the assumption that one in possession under a recorded deed is not claiming land not embraced in his deed and not in his actual possession. In the case of Hitchler v. Scanlan, 83 Tex. 573, 19 S. W. 261, our Supreme Court, in speaking of the extent of the possession of claimant under the ten-year statute, say:

“His constructive possession could not be extended beyond the boundaries given in his deeds, if he had deeds during such possession, or beyond the boundaries of the deeds of other persons for whom he was holding in case he was so holding possession. Pearson v. Boyd, 62 Tex. 541.”

In the ease of Porter v. Miller, 76 Tex. 597, 13 S. W. 555, 14 S. W. 334, the general rule that constructive possession of land cannot be extended beyond the boundaries defined in the deed under which the possessor claims is announced and applied to a claim under the ten years’ statute of limitation.

In Frazer v. Seureau, 128 S. W. 651, Judge Neill announces the rule as follows:

“Where one or his tenant actually resides'upon a large tract of land and claims it for 10 years, he acquires title to 160 acres, including his improvements, whether it is inclosed or not, unless there be something in the evidence to restrict him to a smaller area. Craig v. Cartwright, 65 Tex. 421; Pearson v. Boyd, 62 Tex. 541; Williams v. Rand, 9 Tex. Civ. App. 636, 30 S. W. 509; Simpson Bank v. Smith [52 Tex. Civ. App. 349], 114 S. W. 446; Harris v. Iglehart [52 Tex. Civ. App. 6], 113 S. W. 170. In a ease like this, where there is possession under a deed, it is limited to the land described therein, but it extends to the limit of its boundaries.”

See, to the same effect, Williams v. Rand, 9 Tex. Civ. App. 636, 30 S. W. 509, Blaske v. Settegast, 123 S. W. 221, and Noland v. Weems, 141 S. W. 1031.

We think the authorities above cited fully sustain appellants’ contention that under the undisputed evidence appellee was only entitled to recover that portion of the land in controversy embraced within the boundaries defined in his deed. It follows that the judgment of the court below should be reversed, and judgment here rendered restricting ap-pellee’s recovery as above indicated, and it has been so ordered.

Reversed and rendered.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS,. J.

text:
    MASTERSON v. CAVIN et al.
    (No. 7010.)
    (Court of Civil Appeals of Texas. Galveston.
    May 13, 1915.)
    1. Receivers &wkey;>32 — Petition for Appointment — Sufficiency.
    A petition for the .appointment of a receiver, which shows that timber on the premises affected is worth much more than all secured and unsecured debts owing by the owner, and which fails affirmatively to show that it is depreciating or likely to depreciate by remaining in its present condition, is insufficient to show the necessity for the appointment of a receiver to conserve the timber.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 45-50, 64; Dec. Dig. &wkey;32.]
    2. Receivers '<&wkey;32 — Grounds of Appointment — Petition.
    A petition for the appointment of a receiver, which alleges that defendants have abandoned their sawmill and personal property, consisting of sawed lumber, and mules, horses, etc., used in connection with the lumber business, and located upon lands controlled by them, and that such property would depreciate and deteriorate from nonattention, is sufficient to authorize the appointment of a receiver to take charge of the sawmill and personal property.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 45-50, 64; Dec. Dig. &wkey;32.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Petition by George W. Cavin and another for the appointment of a receiver. From an order appointing a receiver and granting a temporary injunction, H. Masterson appeals.
    Affirmed in part, and reversed in part.
    I-I. Masterson, of Houston, pro se. Elliott Cage and Frank A. Woods, both of Houston, for appellant. Greer, Nall & Bowers, of Beaumont, Woods, Harris & King, of Houston, and Minor & Minor and Sol B. Gordon, all of Beaumont, for appellees.
   McMEANS,. J.

This is an appeal by H. Masterson from an order of Hon. W. H. Davidson; judge of the Fifty-Eighth judicial district, made in vacation, without notice, appointing a receiver of the property of defendants, W. J. Sanders, alleged to be a nonresident of this state, and of W. J. Sanders & Co.,, alleged to be a foreign corporation without authority or permit to do business in this-state, and conferring upon the receiver authority to operate a sawmill plant belonging to defendants, and granting a temporary injunction, restraining the appellant, H. Mas-terson, from filing suit in any of the courts of this state to foreclose his lien upon a portion of the property of Sanders and Sanders & Co., which lien is alleged to be a first lien, and commanding and directing him to intervene in this suit and set up his claim in order to fix the respective priorities of the creditors. This order was made upon the petition of Cavin & Daniels, a firm composed of George W. Cavin and W. F. Daniels, and the Davidson Securities Company, a corporation, in which it is alleged, in substance, that the defendants, Sanders and Sanders & Co., owe debts to the amount of about $90,000, but that they are solvent and own property in this state of the value of about $170,000, consisting of the timber upon 4,200 acres of land in Diberty county of the value of $115,000 and a sawmill plant at Felicia, in Liberty county, lumber in yards, mules, horses, and oxen used in connection with said sawmill plant, tramroad, equipment and appurtenances, of the aggregate value of $55,000. It is further alleged, in substance, that the appellant, Masterson, holds the first lien against the timber on the 4,200 acres, and that the ap-pellees hold a second and third lien respectively against the timber and the sawmill plant and personal property above mentioned, and that plaintiff feared that appellant would mature his entire indebtedness on March 1, 1915, and foreclose his lien on the-timber; that defendants, Sanders and Sanders & Co., had abandoned the sawmill plant, and that, by reason of said abandonment, said plant and personal property was depreciating in value, and their debts increasing, and that therefore a necessity existed for the appointment of a receiver. It is further alleged, in substance, that, in case the full value of the assets of defendants is realized by operating the sawmill and removing the. timber from the 4,200 acres of land, the assets will exceed all liabilities, and a sufficient sum will be realized from the assets, by operating the sawmill to pay the secured and unsecured creditors, but, on account of the conditions existing by reason of the abandonment of said plant by defendants, it is probable that, without the aid of a receiver, the assets will depreciate and become dissipated to the extent that the same will be insufficient to pay all creditors, and, in case this should result, plaintiffs, as' well as the unsecured creditors, would probably lose their debts and their interest in said property; that defendants are unable to pay either the secured or unsecured creditors; that Masterson will declare his first mortgage due on March 1, 1915, foreclose same, and, if permitted to do so, exclude appellees and the unsecured creditors from participating in said assets; that the principal asset of defendants is the timber on the 4,200 acres, and, in order to realize full value for said timber, it is necessary to cut the timber and remove the same from the land and manufacture it into lumber; and that the only way to prevent a foreclosure by appellant, Masterson, and prevent the timber being sold in its present shape on the ground, by appellant, and save the assets without excluding the plaintiffs and the unsecured creditors from participation therein, is by the appointment of a receiver to take charge of the mill and timber, operate the mill for the benefit of all the creditors, secured and unsecured.

The petition is of great length, and the above is a statement in our own language of the substance of the material portions thereof. No answer was filed by any of the defendants before the orders complained of were made, nor did any of the defendants have notice of the filing of the application for a receivership and injunction until after the entry of the orders. In determining whether the orders were properly made, we must look to the allegations of the petition alone, and cannot call to our aid the statements contained in answers and motions subsequently filed.

In our opinion the petition does not show a valid necessity for the appointment of a receiver of the timber. It alone is shown by the petition to be worth $25,000 more than all of the debts, secured and unsecured, owing by Sanders and Sanders & Co., and there is nothing to affirmatively show that it is depreciating or likely to depreciate by remaining as it is. The secured debts, including Masterson’s according to the petition, amount to about $60,000, and the claims of the unsecured creditors to about $30,000, so that the value of the timber alone, which is not alleged to be lessened by standing where it is, is sufficient to pay all the debts, to say nothing of the $55,000 in value of the sawmill and personal property mentioned. Nor do we think that the petition shows any reasonable grounds to authorize the court to enjoin appellant Masterson without notice from filing a suit in a proper court to foreclose his lien on the timber, which is admitted to be a first and superior lien. A junior lienholder always has the right to protect himself as against the prior lien by paying off the debt secured thereby, and subrogating himself to all the rights secured by the prior lien. But, independently of this principle, we are of the opinion that, in view of the large excess in value of the assets over the liabilities of the defendants, the other creditors could in some proper way have protected their debts without enjoining Masterson from foreclosing in any way in which the right was open to him, and without placing the property upon which he held a first lien in the hands of a receiver.

['2] But, as to the sawmill and the personal property mentioned, we think the allegations of the petition were sufficient to authorize the court to appoint a receiver to take charge thereof. All this property was shown to be of a character that would depreciate and deteriorate from nonattention, and the petition alleged that it had been abandoned by the owners. We think that so much of the order as appointed the receiver and directed him to take charge of the sawmill and personal property was properly made, and the judgment to that extent is affirmed; but it is our opinion that so much of the order as directed the receiver to take charge of the timber and enjoined appellant, Masterson, from foreclosing his lien thereon and peremptorily commanding him to intervene in this cause and set up herein his lien in order to fix the respective priorities of the creditors (it being admitted in the petition that he had the first or prior lien) should be reversed, and judgment here rendered vacating and annul, ling said orders; and it has been so ordered.

Affirmed in part. Reversed and rendered in part.
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author: LANE, J.

text:
    DOLSONS, Inc., v. SHERIDAN STOVE MFG. CO.
    (No. 6860.)
    (Court of Civil Appeals of Texas. Galveston.
    May 7, 1915.)
    1. Appeal and Error &wkey;560 — Record — Statement of Eacts.
    A statement of facts on appeal must be in narrative form, and. must not consist of questions and .answers as taken by the official stenographer.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2490-2493; Dec. Dig. &wkey;560.]
    2. Appeal and Error <&wkey;559 — Record — Statement op Eaots.
    A statement of facts, which contains excluded testimony, objections of counsel thereto, and arguments upon objections urged, will not be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. <&wkey;>559.]
    3. Judges &wkey;>56 — Disqualification — Effect-Time of Taking Proceedings — Extension of Time.
    An order extending the time for filing the statement of facts and bills of exception on appeal, made by a judge who is disqualified to sit on account of having represented one of the parties in the action, is void.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 235-245; Dec. Dig. &wkey;56.]
    4. Appeal and Error <&wkey;742 — Record on Appeal — Briefs.
    Rules 31 and 39 of the Court of Civil Appeals (142 S. W. xiii), providing that a brief statement shall be subjoined to each proposition in the brief, with a reference to the pages of the record, and that the appeal m'ay be dismissed for failure to file proper briefs, are not complied with, by a mere reference to the pages of the transcript, without any further statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742.]
    Appeal from Galveston. County Court; George E. Mann, Judge.
    Action by the Sheridan Stove Manufacturing Company against Dolsons, Incorporated. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wilson & Webb, of Galveston, for appellant. King & Hughes, of Galveston, for ap-pellee.
   LANE, J.

Appellee brought this suit against appellant, Dolsons, Incorporated, to recover $828.49, the purchase price for certain stoves alleged to have been sold and delivered by appellee to appellant. Appellant admits the purchase and price to be paid, but alleges that the stoves were not such as ap-pellee represented and warranted them to be; that after it had sold some of said stoves, $316.20 worth, it discovered that said stoves were not such as it bought, and not fit for its trade; that thereupon it stored the remainder of said stoves, since the 18th day of November, 1911; that such storage was and is worth $5 per month; that it paid out $151.20 for freight and $15 for drayage on said stoves; that it tenders the stoves still unsold back to plaintiff, and prays for $30.28 balance due it, after deducting the $316.20 for which it sold a part of said stoves. Appellee by supplemental petition denied all the material allegations of appellant’s answer. The case was tried before a jury. After both parties had introduced their evidence, respectively, upon motion of plaintiff, the court instructed a verdict for plaintiff for the sum sued for, and verdict and judgment was rendered and entered accordingly.

On October 5, 1914, in due time, appellee filed its motion to strike out appellant’s bill of exceptions and the purported statement of facts filed in this court in this case. The reasons assigned why said statement of facts should be stricken out are: First, because said statement is in question and answer form, and not in narrative, as required by law, and is not an agreed statement of facts; second, because said statement contains a great mass of matter which s.hould not be included in a statement of facts, consisting of excluded testimony, exceptions, objections, and argument of attorneys, which should never be included in a statement of facts; third, because at the time the trial judge approved said statement he was in the state of California, and without the jurisdiction of the state of Texas, and therefore had no authority to judicially approve said statement as a statement of facts in this case.

We sustain appellee’s motion to strike out the statement of facts upon the first and second grounds urged. A statement of facts must not consist of questions and answers as taken down by the official stenographer, but must be in narrative form. See Oppermann v. Petri, 107 S. W. 1142; Pugh v. Pugh, 167 S. W. 313; Railway Co. v. Quinn, 100 S. W. 1036.

This court will not consider a, statement of facts which contains excluded testimony, objections of counsel thereto, and the various arguments of counsel upon objections urged. Pugh v. Pugh, 167 S. W. 313; Howard v. McBee, 138 S. W. 450.

For the reasons stated, we sustain the motion of appellee to strike out the statement of facts filed herein. We also sustain appellee’s motion to strike out and not consider appellant’s bills of exception incorporated in the transcript. In the order overruling appellant’s motion for new trial the court allowed appellant 60 days after adjournment of court in which to file statement of facts and bills of exception. The trial court adjourned on the 12th day of June, 1914. On July 30, 1914, G. Q. McCracken, in the absence of the regular judge, was duly and legally elected and qualified as special county judge. On the 11th day of August, 1914, the said special judge entered an order attempting to give appellant 30 days additional time, after the expiration of the 60 days first allowed, in which to file statement of facts- and bills of exception; but it is shown by the record that Special Judge McCracken was the attorney who filed appellant’s original petition in this case and had been counsel in the case, though not such counsel at the time the order was entered, and therefore disqualified to enter an order in the cause (see article 1736, Revised Statutes 1911), and therefore the order entered by said special judge, attempting to extend the time for filing statement of facts and bills of exception, was void, and did not have the effect to extend such time beyond the 60 days allowed in the order overruling the motion for new trial, which expired on the 12th day of August, 1914. Appellant’s bills of exception were not filed until September 3, 1914, after the time legally allowed for such filing had expired; therefore we must sustain appellee’s motion, and strike out and refuse to consider appellant’s bills of exception.

Appellant, in its brief, presents eight assignments of error, but as such assignments and propositions thereunder are not followed by any statement, but only refer the court to pages of the transcript for information, none of them can be considered. This is in direct violation of rule 31 for the Courts, of Civil Appeals, 142 S. W. xiii, and rule 39 for Courts of Civil Appeals, 142 S. W. xiii. These rules are not complied with by a mere reference to the pages of the transcript,, without any further statement. Kirby Lumber Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607.

But, should we conclude to overlook appellant’s failure to file proper briefs, still we are unable to review any of appellant’s assignments in the absence of a statement of facts and bills of exception, as each and all of them relate to proceedings of the trial court, which can be reviewed only by reference to a statement of the facts proven or to bills of ■exception.

In the absence of a statement of facts and hills of exception, we must presume that the evidence was sufficient to support the judgment entered by the trial court. Therefore the judgment of the court below is affirmed.

Affirmed.
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author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. STERLING.
    (No. 1436.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1915.
    Rehearing Denied June 24, 1915.)
    1. Appeal and Ebeob &wkey;>999 — Review-" Veedict against Evidence — Revebsal.
    The appellate court may set aside the verdict and award new trial when the evidence is of force and character to make such action necessary and proper.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. <¿==999.]
    2. Cabbiebs <&wkey;318 — Caeeiage op Passen-GEES — IN JTJBIES — VEBDIOT — SUFFICIENCY OB Evidence.
    In a passenger’s action against a railroad for injuries caused by derailment of the train, evidence that the producing cause of the injury was the road’s negligence held insufficient to support verdict for plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. &wkey; 318.]
    Appeal from District Court, Titus County; W. T. Armistead, Judge.
    Action by H. L. Sterling against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded for new trial.
    See, also, 175 S. W. 1128.
    Glass, Estes, King & Burford of Texar-kana, for appellant. Randell & Randell, of Sherman, for appellee.
   LEVY, J.

The action is by appellee, a locomotive fireman, for damages for personal injuries claimed to have been received by him in the derailment of one of appellant’s passenger trains. The derailment occurred on the main line track, at the point of a curve in the track, about 1% miles from Cop-pell, Tex., on August 31, 1913, about 10 o’clock at night. The petition averred as grounds of negligence running the train at a high and dangerous rate of speed, and maintenance of a defective track, bad roadbed, and rotten ties at the point of the wreck. The defendant traversed the allegations of negligence, and pleaded as a defense that the derailment was solely caused by the malicious act of some person not under its control in removing the spikes, bolts, and angle bars from one of the rails in the track just shortly before the wreck.

The twenty-fifth and twenty-seventh assignments of error assail special findings of the jury in respect to the cause of the derailment, as being against the great weight and preponderance of the evidence. After considering the entire evidence, as disclosed by the present statement of facts, it is believed that the various circumstances relied on to show the probable cause of the derailment so strongly go to show that the real producing cause of the injury was not through the negligence of appellant as to fairly and reasonably lead to the opinion that the verdict of the jury in that respect is against such preponderance of the evidence as to warrant and make proper the action of setting aside the verdict and awarding a new trial in the case. It is within the power of the court so to do when in its opinion the evidence is of that force and character as to make that action necessary and proper. Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69. It is undertaken only to briefly state the portions of the evidence that are persuasive of the ruling. The derailment occurred at a place where there is about a four-degree curve in the track. The engine ran about three rails’ length on the ties, and it and the baggage car turned over on the inside of the curve. The mail car and the smoking car were turned crossways of the track, and the front trucks of the chair car got off one of the rails, and the rest of the train remained on the track. The appellee testified:

“The first thing that attracted my attention that there was going to be a wreck was just a great crash and a surge to one side, and then I could not tell hardly what happened. * * * There was a great crashing noise and a smash.”

The engineer testified:

“We were drifting along, and the first intimation I had that there was anything wrong, I felt that the engine was off the track. I applied the air brake full in the emergency, and tried to jump out of the window, and that is about the last I remember. I did not feel the engine rocking or swinging before I felt it was off the track. I did not know that anything was wrong before the engine got off the track, and I did not notice anything unusual about the engine or the movement of the engine before it got off the track.”

The general roadmaster and the extra gang foreman of appellant were on the train at the time, and made an examination of the track and situations on the ground very shortly after the accident. The foreman testified that he had never seen a derailment go off on the inside of a curve, as this, and that he got a lantern to see what caused the derailment and how the engine got off so quickly. The roadmaster also made an examination. The foreman stated, in substance, that the front wheels of the chair car were off one rail and the others were on the rails, and the rail where the wheel was off was disconnected and the end was pushed out towards the middle of the track about 10 inches or 1 foot. The rail on the opposite side of the track was not disconnected. He did not see any marks on the ties back from where this rail was disconnected, but found signs or indications on the ties from the disconnected rail in the direction where the engine lay. He further said he found one of the plates off the disconnected rail lying on the inside of the track and one on the outside of the track, and found a bolt lying on the tie and one between the ties and one next to the plate in the center of the track, and found five spikes pulled out of the ties on the inside of the rail. He examined the bolts at the disconnected joint, and they were not broken in any way, and the angle bars were not broken, and the nuts were bright and had four corners to them and had marks on them like marks made by a wrench. It was his opinion that if the train had dislocated the rail, it would have broken the nuts, bolts, and angle bars, and that it would have been impossible for the train to dislocate the joint as it was. The roadmaster’s evidence, without going into details, is, in substance, the same. He stated he found the inside rail, where the chair car was, dislocated, while the opposite outside rail was in position and not disturbed, and there were wheel marks on the ties after they left the disconnected rail, and that the loose end was toward the center of the track, and that the disconnected rail was about 150 feet from where the engine was lying. The roadmaster at once telephoned the sheriff of Dallas county, who got there in company with a deputy at about 3 or 4 o’clock a. m. It was shown that no change was made in any of the conditions before the arrival of the sheriff. The sheriff testified substantially that he examined the situation and found that bolts had been taken out of the fishplates or angle bars, and found on the ground the bolts where the rails had come together, and found spikes out of the ties for seven ties on the outside of the rail and for nine ties on the inside of the rail, and the loosened rail had sprung back in a straight position, leaving a gap between the rails; that the rail was not entirely removed, but the fastenings had been removed that held it to the rail west of it, and the spikes pulled, leaving the west end of the rail loose, but the east end intact; that the rail on the north or west of the loosened rail was intact. The rail on the opposite side was intact and undisturbed. The deputy with the sheriff found a claw bar outside of the right of way fence, in the weeds. It was a Missouri, Kansas & Texas claw bar, and had a Missouri, Kansas & Texas mark on it. The sheriff says:

“We took this claw bar and went back to the track, and there was an impression left on the ties, and we placed the heel of this bar on those impressions, and they fit. We also placed a spike back in the hole, and there was an impression on that bar, that is, a black place, and there was also one on the tie, and they fit absolutely. We made the experiment with reference to the disconnected rail right at it.”

He also described the condition of the track and rails, and the wheel marks on the ties. Shortly afterwards a Missouri, Kansas & Texas wrench, about 2 feet long, was found about 10 feet from the right of way fence and just south of the point of the wreck. The testimony of the conductor, the section foreman, and the extra gang foreman goes to show, as stated by the other witnesses, the displacement and disconnection of the rail and the physical indications that the engine wheels first left the track at that point. An hour and one-half before this passenger train arrived at the point of derailment a freight train safely passed the same track at the speed of about 25 miles an hour. At 6:45 p. m. previous to the accident the section foreman passed over the track, and found it all right, he says. There was further proof by appellant that the roadbed had been renewed and put in good condition of alignment, and new ties had been put in same about two months previous. Appellee offered evidence tending to show that the track before the wreck appeared in a run-down condition and contained some bad ties and low joints, and that the train at the time was running at the rate of speed of 40 to 45 miles an hour. In view of the disposition of the appeal it is not thought proper to discuss or comment upon the evidential significance or allowable inferences of the various circumstances.

The judgment is reversed, and the cause remanded for another trial.

       other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    GALVESTON-HOUSTON ELECTRIC RY. CO. v. ENGLISH.
    (No. 6886.)
    (Court of Civil Appeals of Texas. Galveston.
    May 13, 1915.
    Rehearing Denied June 10, 1915.)
    1. Damages <&wkey;>163 — Necessity oe Pkooi^-Vebdict.
    Where plaintiff’s automobile was injured by a collision with defendant’s train under such circumstances as to entitle him to recover for expenses necessarily incurred, it was incumbent upon him to prove what the repairs made were reasonably worth, and receipted bills showing what he had paid different parties for repairs were not sufficient to show that the amounts so charged and paid were reasonable; and, in the absence of such proof, the jury was without competent evidence on which to base a verdict.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 454-459; Dee. Dig. <S&wkey;163J
    2. Damages <&wkey; 174 — Admissibility oe Evidence-Receipts.
    Such receipted bills were admissible to show what plaintiff had paid for repairs, but not as evidence of the reasonableness of the charges.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. <&wkey;>174.]
    ■3. Damages &wkey;>208 — Assessment—Issues.
    Where plaintiff’s automobile was injured by collision with defendant’s train under circumstances entitling him to recover the expenses necessarily incurred for repairs, and his pleadings sufficiently alleged loss of earnings or net profits from being deprived of thei use of the automobile during repairs and was sustained by competent evidence, the court properly submitted such issue to the jury.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. &wkey;208.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by H. A, English against the Galveston-Houston Electric Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, for appellant. Wm. B. Lockhart and H. H. Treac-car, both of Galveston, for appellee.
   McMEANS, J.

H. A. English brought this suit against the Galveston-Houston Electric Railway Company to recover damages alleged to have been sustained by him as a result of a collision between one of defendant’s cars and a rent automobile owned by plaintiff. The damages claimed were the amount which plaintiff alleged he necessarily expended in the reasonable repairs of the automobile and the loss of net profits which he claimed he would have made through renting of the car during the period in which such repairs were being made. The case was tried before a jury, which returned a verdict in favor of plaintiff for $500, itemizing the same as $363.30 as the reasonable cost of repairs and $136.70 as loss of net profits, upon which judgment was accordingly entered. Defendant has appealed.

Appellant’s seventeenth assignment of error is as follows:

“The verdict of the jury and the judgment of the court thereon, in so far as the same allow the plaintiff a recovery of the sum of $363.30 as the amount of reasonable repairs expended by plaintiff upon said automobile, is without any evidence to support it in that there was absolutely no testimony of any kind or character showing or tending to show, or from which the jury might have found, that the amount expended by plaintiff was reasonable.”

The only evidence on the question of the value of the repairs found in the record is as follows:

Plaintiff testified:

“After the accident occurred I had my automobile taken up to the Updegraff-Hupp Automobile Repair Company; had them to work on the car and place it in good condition. I paid them for their services. They rendered me a bill for their services, and I paid them. I think I would be able to identify the receipted bill if I saw it.”

The witness examined a paper handed to him, and continued:

“This is the receipted bill that I received from the Updegraff & Hupp Automobile Company, marked paid.”

The receipted bill was then introduced in evidence, and is as follows:

“June, 1913.
“Mr. Harry English to Undegraff-Hupp Auto Repair Co., Dr.
Work on Chalmers 30, total.$98.30
“Paid 7/7/13. U. P. D. E.”

Witness continued:

“Mr. A. Baushell performed services in regard to the repairing of this machine. He worked on the top; fixed the bows and the top — the cloth. He rendered me a bill for his services, and I paid him. Nic Bohn & Son rendered me services in regard to fixing it up and rendered me a bill, which I paid. These are the receipted bills I received from Mr. Baushell and Nic Bohn.”

The receipted bills were then offered in evidence, and are as follows:

“Galveston, Texas, June 12, 1913.
“Mr. H. A. English to A. Baushell & Co., Dr. June 12. Repairs on auto and top.$35.00
“Paid. A. Baushell.”
“Galveston, Texas, June 12, 1913.
“Mr. H. A. English to Nic Bohn & Son, Dr. To body and painting auto.$185.00
“Paid. Nic Bohn & Son.”

The witness continued:

“The only other expense I incurred in placing the car in its original condition (that is; prior to the time of the accident) was only just as was written down, the tires and the towing, and such as that. I forget how much I paid for the tires; I can’t recollect. The size of the wheel was a $5-4 — somewhere around-$35, and for the towing I paid $2. I purchased a new tube for one of the wheels. That was all tore. The casing and tube was tore all to pieces, you know.”

There was absolutely no testimony that the amounts charged by the different parties and paid by plaintiff for the repairs was the reasonable value of such repairs.

We think that the plaintiff’s automobile was damaged under such circumstances as entitled him to a judgment against the defendant for the expenses necessarily incurred by him for repairs, but he is not entitled to recover more than the reasonable cost of such repairs. It was incumbent upon him, therefore, to prove, not what he paid to others for doing the work, but what the repairs made were reasonably worth; and, in the absence of such proof, the jury was without competent evidence upon which to base a verdict. Railway v. Warren, 90 Tex. 566, 40 S. W. 6; Wheeler v. Railway, 91 Tex. 361, 43 S. W. 876; Railway v. Pereira, 45 S. W. 767; Railway v. Bellew, 22 Tex. Civ. App. 264, 54 S. W. 1079; Railway v. Taylor, 58 S. W. 166; Railway v. Sampson, 64 S. W. 692; Railway v. Patterson, 27 Tex. Civ. App. 249, 65 S. W. 202; Dallas v. Moore, 32 Tex. Civ. App. 230, 74 S. W. 95.

The receipted bills admitted in evidence were merely memoranda of the amounts paid by plaintiff for repairs and were not sufficient to show that the amounts so charged were reasonable; and, while admissible to show that he had paid for repairs, it was still incumbent upon plaintiff to prove, by other evidence, the reasonableness of the charges. In themselves the receipted bills were not evidence of this fact. Railway v. Harriett, 80 Tex. 82, 15 S. W. 556. These conclusions necessarily lead to a reversal of the trial court’s judgment.

We think that plaintiff’s pleadings sufficiently alleged loss of earnings or net profits from being deprived of the use of his rent automobile while it was undergoing repairs, and that the allegations were sustained by evidence which was competent, and that the court properly submitted this issue to the jury; and appellant’s several assignments of error relating to these matters must be overruled.

We have carefully examined all of appellant’s assignments of error, and, with the exception stated, none of them, in our opinion, points out reversible error. For the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
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text:
    RIDGILL v. E. L. WILSON HARDWARE CO. et al.
    (No. 6865.)

    (Court of Civil Appeals of Texas. Galveston.
    April 30, 1915.
    Rehearing Denied May 27, 1915.)
    Chattel Mortgages c&wkey;153 — Priority—Purchaser for Value.
    A manufacturing- company, being indebted to intervener, executed its note payable in six months and also its mortgage upon all the property owned by it to secure the note. This mortgage was not recorded in the county clerk’s office. Subsequently the manufacturing company, being also indebted to plaintiff, executed a note payable on ,a day certain and a similar mortgage to it. Plaintiff had no notice of the prior lien when it took the note. Held that, since at the time of the giving of the mortgage to plaintiff a definite extension of time of payment of its overdue debt -was granted, plaintiff became entitled to the status of a purchaser for value and was entitled to priority as against the previous unrecorded mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 255-262, 267, 268; Dec. Dig. &wkey;Jl53.]
    Error from District Court, Jefferson County; John M. Conley, Judge.
    Action by the E. L. Wilson Hardware Company and others against the Saratoga Spoke & Handle Manufacturing Company to foreclose a mortgage. C. E. Ridgill intervened, judgment was entered giving plaintiff priority as against intervener, and intervener brings error.
    Affirmed.
    W. G. Reeves and Oliver J. Todd, both of Beaumont, for plaintiff in error. J. D. Wilkerson, of Beaumont, for defendant in error.

       writ of error pending in Supreme Court.

   McMEANS, J.

In the year 1907, C. E. Ridgill performed certain services for the Sara-toga Spoke & Handle Manufacturing Company, a corporation, for which the corporation became indebted to him in the sum of $411.75. On December 20, 1909, the corporation executed to him its promissory note for said amount, payable six months after date, bearing 8 per cent, per annum interest, and stipulating for the payment of 10 per cent, attorney’s fees in certain contingencies, and at the same time executed and delivered to him a mortgage or contract lien upon all the property owned by the corporation to secure the payment of said note. This mortgage or lien was not registered or filed for registration or record in the county clerk’s office. Prior to February 10, 1910, the Sara-toga Spoke & Handle Manufacturing Company became indebted to the E. L. Wilson Hardware Company, and on said date, which was some time after said indebtedness became due, the manufacturing company executed its promissory note to said hardware company for the amount of said indebtedness, payable February 15, 1911, bearing 8 per cent, per annum interest, and stipulating for the payment of 10 per cent, attorney’s fees in certain contingencies; and on the same day executed to the hardware company a mortgage or contract lien upon the same property embraced in the mortgage or lien of Ridgill. The manufacturing company made several payments upon this note, and in this way reduced the amount due thereon to $1,-850.98. On November 29, 1913, the hardware company brought this suit against the Saratoga Spoke & Handle Manufacturing Company to recover upon said note, and interest and attorney’s fees, and to foreclose its said mortgage or contract lien, whereupon the appellant, C. E. Ridgill, intervened, setting up his note and lien, and sought to have his lien declared to be a first and superior lien to that of the hardware company and entitled to be paid in preference thereto. The case was tried before the court without a jury and resulted in a judgment for both the plaintiff and the interveners, for the amount of their debts, and for foreclosure of their liens, and decreeing the claim and lien of the hardware company superior to that asserted by the intervener, Ridgill, and from this judgment Ridgill has appealed.

The only question presented for our determination is whether, under the facts disclosed by the record, the E. L. Wilson Hardware Company is entitled to postpone in its favor the prior note and lien held by the intervener.

Appellant’s first assignment of error is as follows:

“The court erred, to the prejudice of this in-tervener, in finding and holding that E. L. Wilson Hardware Company is merely taking additional security for its debts, and without paying any consideration whatsoever, and without releasing any rights, was an innocent holder for value, and entitled to give its second lien priority over the first lien held by this inter-vener.”

It Is undisputed that the note and lien in favor of the intervener was executed on December 20, 1909, and that the note and lien in favor of the hardware company were not executed until February 9, 1910. It is also undisputed that both of these notes were given for debts that the manufacturing company owed the respective parties prior to the dates they were executed. The notes and mortgages were both executed by the manufacturing company to gain an extension of time for the payment of the debts owing the parties respectively. This fact is recitéd in the mortgage executed to the intervener, Ridgill, and as to that of the hardware company, John R. Cheek, president of the manufacturing company, testified:

“At the time the deed of trust and chattel mortgage was executed to the E. L. Wilson Hardware Company, their debt was due, and they were demanding payment of it, and the mortgage was executed to get an extension to stave the matter off.”

It is undisputed that, at the time the hardware company took this mortgage and granted an extension of more than a year for the payment of its debt, it had neither actual nor constructive knowledge of the lien of the in-tervener, Ridgill.

Under the foregoing facts, we are of the opinion that the hardware company is entitled to the protection accorded to a bona fide purchaser for value against the prior lien of the intervener, and that the trial court did not err in so holding. While it is true that a creditor who takes a mortgage merely as security for the payment of a debt already due to him, and without giving any new consideration or being induced to change his position in any manner, is not entitled to protection against prior liens of which he is not affected with notice, it is also true that, if at the time and in consideration of the giving of the mortgage the creditor grants a definite extension of time of payment, this is such a new consideration as will give him the character of a purchaser for value. 27 Cyc. 1191, 1192.

In Steffian v. Milmo National Bank, 69 Tex. 517, 6 S. W. 824, our Supreme Court states the rule thus:

“This court has held that, where the consideration of a deed is an antecedent debt only, or where a mortgage is taken merely to secure such indebtedness, this is not sufficient to support the claim of a bona fide purchaser for a valuable consideration. McKamey v. Thorp, 61 Tex. 648; Spurlock v. Sullivan, 36 Tex. 511. There being no new consideration, should the grantee or mortgagee lose the land or his lien upon it, he still has his debt, and for that reason is held to have parted with nothing of value. But, should the mortgagee give time upon his debt as a consideration for the security, his case is different. By extending the time of payment, he yields up for a season his right of action, which is a privilege deemed of value in law. This is accordingly held by the controlling weight of authority sufficient to support the claim of an innocent purchaser. Schumpert v. Dillard, 55 Miss. 348; Port v. Embree, 54 Iowa, 14 [6 N. W. 83]; Cary v. White, 52 N. Y. 138; Gilchrist v. Gough, 63 Ind. 576 [30 Am. Rep. 250]; Cook v. Parham, 63 Ala. 456; Thames v. Rembert, 63 Ala. 561.”

In Barnes v. Gray, 14 Tex. Civ. App. 439, 37 S. W. 162, it is said:

“When the consideration for a mortgage is only a pre-existing debt, there is no such consideration as will constitute the mortgagee an innocent purchaser; but, if the time of payment of the debt be extended, the extension will constitute a valuable consideration. The pre-ex-isting debt is not the only consideration in such case.”

In McKinney v. Williams, 45 S. W. 335, it is said:

“It is also shown that, when the mortgage was executed to Williams on the 20 bales of cotton, it was based upon a consideration and agreement to the effect that the time of payment of the note executed by McKinney should be extended to November, 1895. A mortgage taken to secure a pre-existing debt, based upon an agreement to extend the time of payment, is-held to be a sufficient consideration to support an otherwise innocent mortgage holder.”

Appellant with great earnestness assails-the three cases above quoted, asserting that the language quoted from Steffian v. Bank, supra, was not necessary to a decision of any question before the court and that the holding was purely dictum, and that the other cases referred to followed it blindly without looking into the principles that should properly control. We may concede the accuracy of his contention that the holding in the Steffian Case is dictum, without in the least detracting from its soundness as a legal proposition. The rule as there stated is recognized by text-writers and applied by the courts of last resort in many of the states of the Union. In addition to these above mentioned, the following cases in this state recognize and apply the rule: Halbert v. Paddleford, 33 S. W. 592; Watts v. Corner, 8 Tex. Civ. App. 588, 27 S. W. 1089; Bank v. James, 13 Tex. Civ. App. 550, 36 S. W. 289; Ingenhuett v. Hunt, 15 Tex. Civ. App. 248, 39 S. W. 310. The cases cited by the Supreme Court in Steffian v. Milmo Bank fully sustain the proposition asserted, as do, also, 27 Cyc. 1191, 1192, and Jones on Mortgages, § 459.

The judgment of the court below is affirmed.

Affirmed.
      <S=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON OIL CO. OF TEXAS v. DAVIS et al.
    (No. 6749.)

    (Court of Civil Appeals of Texas. Galveston.
    March 3, 1915.
    Rehearing Denied June 30, 1915.)
    1. AnvEBSE Possession <&wkey;31 — Sufficiency.
    Where plaintiffs’ predecessor in title took adverse possession of defendant’s land, claiming 160 acres thereof, and thereafter purchased an adjoining tract, putting under fence a tract which included part of the land so acquired and part of defendant’s 160 acres, the possession of the fenced tract by plaintiffs and their predecessor was sufficient to give title by adverse possession, since it could not be said as matter of law, merely from the fact that part of the land under fence belonged to plaintiffs’ predecessor, that the adverse possession was not sufficient to give a reasonably diligent, owner notice of the extent of plaintiffs’ claim to the land other than that owned by him.
    [Ed. Note.- — For other cases, see Adverse Possession, Cent. Dig. §§ 128-183; Dee. Dig. <&wkey;> 31.]
    2. Appeal and Errob <&wkey;1008 — Review— SUFFICIENCY OP ADVERSE POSSESSION ■ Question oe Fact.
    In trespass to try title, the sufficiency of plaintiffs’ adverse possession to give title was a question of fact, and the finding of the trial court thereon could not be disturbed on appeal.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. <S&wkey;1008.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Action by Dula Belle Davis and others against the Houston Oil Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    H. O. Head, of Sherman, and Parker & I-Cennerly and H. M. Richter, all of Houston, for appellant. Foster & Davis, of San Augustine, for appellees.

       writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellees, Lula Belle Davis and her minor children, against appellant, to recover the title and possession of a tract of 160 acres of land, a part of Houston Tap & Brazoria Railroad survey No. 15, in San Augustine county. The defendant answered by general demurrer, general denial, and plea of not guilty. The trial in the court below without a jury resulted in a judgment in favor of plaintiffs.

The following conclusions of fact filed by the trial court are sustained by the evidence, and we adopt them as our fact findings:

“First. I find that Henry Davis in 1891 took possession of the Houston Tap & Brazoria Railroad survey No. 15, for the purpose of acquiring 160 acres thereof by limitation, and cleared, fenced, and put in cultivation a field of about 7 or 8 acres, which he cultivated continuously from that time until his death about 4 or 5 years ago, raising thereon cotton or corn, and sometimes both, from year to year; that he held peaceable possession of same, claiming 160 acres to include his improvements, and his possession was open, notorious, and hostile to the owner and all others.
“Second. I find that the possession of the said Henry Davis, and that of his wife, Lula Belle Davis, and family, after his death, was open, notorious, and hostile to the owner and all others, and such possession was at all times sufficient notice to the owner that he and they were claiming 160 acres, including the improvements.
“Third. I find that in 1893 the* said Henry Davis married the plaintiff Lula Belle Davis, and they together from said marriage to his death possessed, used, and cultivated the said field, continuously, claiming 160 acres to include said field, and that, since the death of the said Henry Davis, the said Lula Belle Davis, with her children, has continued the possession and use of the same continuously, asserting claim to the said 160 acres, in the manner stated in conclusions of fact No. 1 above.
“Fourth. I further find that, after his marriage to the plaintiff Lula Belle Davis, they purchased from E. A. Blount a 50-aere tract on the J. A. Mitchell survey adjoining railroad survey No. 15, and after the purchase from-Blount they enlarged the field, which at that time was wholly on said survey No. 15, by taking in from first to last about 7 acres of land on the said 50-acre tract, so that they had one field under one fence partly on the said survey No. 15, and partly on said 50-acre tract, and from then to the present time the said field has been so situated.
“Fifth. I further find that after Henry Davis and his wife, Lula Belle Davis, purchased the 50 acres from Blount, they extended and enlarged from time to time that part of the field which is on survey No. 15 and also that part which is on the 50-acre tract.
“Sixth. I find that Henry Davis was married once only to the plaintiff Lula Belle Davis, and that, as the fruit of said marriage, they had the following children, and no more, to wit: Missouri, who died at the age of two months, and being the first child, and Betty, Henry, Matthew, and Sudie, the other plaintiffs in this case.
“Seventh. I find that the 160 acres described in plaintiff’s petition, and which includes the improvements, is not of greater value than any other like part of said survey 15; in fact, on the whole, it is not as valuable, and to award the plaintiffs the said 160 acres would not constitute an inequitable partition of the said survey 15, but would be fair and just to the defendant, Houston Oil Company of Texas.”

Henry 'Davis had the 160 acres claimed by plaintiffs in this suit surveyed and the boundaries thereof marked in September, 1905. The line between the 160 acres and the 50 acres owned by Davis on the Mitchell survey runs through the middle of the 15-acre field; approximately one-half of said field being on the Mitchell survey. The Davis family did not live upon either tract, and there were no improvements upon either, other than the 15-acre field.

Appellant very earnestly insists that these facts do not sustain the trial court’s conclusion that the possession of Henry Davis and Lula Belle Davis and family after the death of Henry Davis was open, notorious, and hostile to the owner and all others and was at all times sufficient notice to the owner that those in possession were claiming 160 acres of the land, including the improvements. It is not contended that the actual possession and cultivation of 7 or 8 acres of appellant’s land would not have been sufficient notice of appellees’ claim to 160 acres, had such possession not been extended to include a like number of acres of the 50-acre tract owned by appellees; but the contention is that, when the field was extended so as to include the land owned by appellees, the situation became such that it was calculated to mislead the owner of the 160 acres into the belief that the inclosure of his land was by mistake, and such possession was not of that character as to indicate unmistakably that appellees were claiming any portion of appellant’s land outside of their inclosure.

We do not think it can be said, as a matter of law, that appellees’ possession was not sufficient to give a reasonably diligent owner notice oí the extent of their claim to i his land. There was as much of appellant’s land in appellees’ possession as of the land owned by appellees; and there being no other improvements upon appellees’ land, and nothing to indicate that their possession of appellant’s land was a mere encroachment by appellees by mistake upon their neighbor’s land, we do not think the fact that appellees owned the 50 acres of land on the Mitchell survey, and that approximately one-half of the field was on this 50-acre tract, materially affects the question. If appellees had owned no land on the Mitchell, and had put in a 15-acre farm partly on one survey and partly on the other, the case would have been the same. The question of the sufficiency of appellees’ possession was one of fact, and we are of opinion that the finding of the trial court upon this issue should not be disturbed. Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153.

This disposes of the only question raised by the two assignments presented in appellant’s brief. It follows that both the assignments should be overruled, and the judgment of the court below affirmed; and it has been so ordered.

Affirmed.
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text:
    PEOPLE’S STATE BANK v. DAVIS et al.
    (No. 6869.)
    (Court of Civil Appeals of Texas. Galveston.
    May 7, 1915.)
    Banks and Banking &wkey;>126 — Nature on Deposit — Right to Charge Back Credits.
    Plaintiffs, being the owners of timber, sold it to R. By an arrangement with defendant bank, it was to finance R.’s undertaking to the extent of 80 per cent, of the value of each car load of lumber cut by him. and shipped through the bank. The invoice and bill of lading for each car was indorsed by R. and delivered to the bank, which then, upon the orders of R., pursuant to his contract with plaintiffs, deducted therefrom the amount du:e to plaintiffs and entered it to their credit. Failing to collect from the consignees of the lumber the invoice value thereof, defendant charged back to plaintiffs the amount which it had credited to their account. Held that, defendant having paid plaintiffs with full knowledge of the facts by crediting their account, the relation of debtor and creditor was established, and the bank was unconditionally liable to plaintiffs for the amounts so credited.
    [Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 305, 309; Dec. Dig. <&wkey;> 126.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by G. W. Davis and another against the People’s State Bank. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    H. O.. Howell, of Jasper, for appellant. Bisland & Bruce, of Orange, for appellees.
   McMEANS, J.

G. W. Davis and T. M. Hughes, composing the firm of Cow Creek Lumber Company, brought this suit against the People’s State Bank to recover $1,295.09 alleged by them to have belonged to them and to have been converted by the bank to its own use and benefit. A trial before the court without a jury resulted in a judgment for plaintiffs, and defendant has appealed.

The court upon proper request reduced to writing and filed its findings of fact; and, as none of them are attacked by appellant as not being supported by the testimony adduced upon the trial, we make our findings of fact therefrom.

Plaintiffs, Davis and Hughes, owned a small sawmill in Newton county which they, in the fall of 1908, leased to S. C. Rigney and one Wells. They also owned pine timber upon land around the mill, which they sold to Rigney and Wells at $7.25 per thousand feet, delivered on the skidway at the sawmill. About March 1, 1909, Rigney took over and assumed the contract between Davis and Hughes and Rigney and Wells, and Wells was released by all the parties to the contract. Prior to that time the bank was running an account with Rigney and Wells, and after that date this account was continued in the name of S. C. Rigney. After the release of Wells, Rigney operated the sawmill and sawed into lumber the pine timber that was delivered to him at the mill by Davis and Hughes under the contract, and shipped out the same. The bank knew that Rigney had rented the sawmill, and knew that he was buying the timber from Davis and Hughes, and it had entered into an arrangement with Rigney, whereby the bank agreed and undertook to finance him in his sawmill venture to the extent of 80 per cent, of each car load of lumber shipped through the bank. As Rigney would ship each car load he would indorse the invoice and bill of lading and deliver the same to the bank, and at the same time would deliver to Davis and Hughes, under their firm name of Cow Creek Lumber Company, an order upon the bank reading as follows:

“People’s State Bank, Kirbyville, Texas.— Gentlemen: Please credit Cow Creek Luunber Company as follows: [Giving the car number, amount of feet and price per thousand].
“[Signed] Yours truly, S. C. Rigney.”

Upon the receipt of these orders the bank would credit the account of the Cow Creek Lumber Company with the amounts specified therein. Prior to the 15th of June, 1909, Rigney shipped through the bank 19 cars of lumber consigned to various parties, invoices and bills of ladings of all of which were indorsed to and delivered to the bank, and for each of the 19 ears Rigney gave an order in favor of the Cow Creek Lumber Company for the amount which he owed for the lumber, which, for the 19 cars covered by said orders, amounted to $1,295.09, and the bank honored all of said orders and passed said sum to the credit of Davis and Hughes in their said firm name of Cow Creek Lumber Company. At the time of the shipment of the 19 ears Davis and Hughes and Rigney were operating under a contract which provided that upon presentation of the invoices to the bank the amount due Davis and Hughes for the timber represented by each car load should be deducted from the account of Rigney and credited to the account of the Cow Creek Dumber Company, and this contract was prepared by the cashier of the bank, and the bank had full knowledge of its terms, but was not a party thereto. When the bank received the invoices it undertook to collect from the consignees the amount thereof, and when collected it would place the same to the credit of Rigney, less the amount it had credited to the Cow Creek Lumber Company upon Rigney’s orders. Davis and Hughes had no understanding with the bank by which they were to become responsible for the payment of the invoice price of the lumber shipped. They were permitted by the bank, and did without question, draw against the amounts that were credited by the bank to the account of the Cow Creek Lumber Company. On September 29, 1909, the bank having failed to collect from the consignees of lumber shipped by Rigney the invoice value of the 19 cars heretofore mentioned, it charged back to Davis and Hughes, or the Cow Creek Lumber Company, the $1,-295.09 with which it had credited their account upon the receipt of the invoices and orders from Rigney. To this Davis and Hughes strongly objected, and many times prior to the institution of this suit sought to have the amount credited back by the bank to their account, but the bank refused to do so. After so charging back said sum to the Cow Creek Lumber Company, the bank collected $751.28 from the consignees of said 19 ear loads, with which sum it credited the account of the Cow Creek Lumber .Company, leaving a balance uncredited of $543.81, for which, and interest, judgment was rendered in favor of plaintiffs.

Appellant by its first assignment of error complains that the judgment in favor of plaintiffs was erroneous, because the bank, as shown by the evidence, received the bills of' lading and invoices from Rigney for the lumber shipped by him as a collecting agent only, and that such collections ware handled by the bank in accordance with the usage and custom of banks and in the ordinary course of banking business; that due diligence was used by the bank in making such collections; that in accordance with the usage and custom of banks, and in the ordinary course of banking business, the defendant, on receipt from Rigney of the invoices and bills of lading, accompanied by memo-randa showing the amount due the Cow Creel. Lumber Company, credited such items to said lumber company, subject to collection, and upon the failure of the bank to collect for a portion of the consignments it had the right to charge back to the account of the lumber company the uncollected items with which the lumber company had been credited. By its proposition under the assignment appellant asserts that:

‘‘Where a bank receives paper for collection, which is credited to the depositor as cash, the bank is not liable to the depositor for the amount thereof, if the paper is worthless or is subsequently dishonored.”

The proposition contains an abstractly accurate statement- of the law, and if the facts were as stated in the assignment, there would be no difficulty in reaching the conclusion that the judgment should be reversed. In argument, appellant in its brief says that it should be borne in mind that this is not a contest between the bank and Rigney; that as between him and the bank no question is made that the bank received and handled the invoices and bills of lading as collections only; that the appellees contend that the same relations did not exist between them and the bank, and that under the facts proved the bank should be held liable to them absolutely and unconditionally for the amount due them for the timber, regardless of whether collections thereof were made by the bank; that this contention was sustained by the trial court, and it was upon that theory that the judgment was rendered in favor of ap-pellees, and that if this theory is correct, the judgment should be affirmed, but if incorrect it should be reversed. We do not think that the rule of law stated in the proposition has any application whatever to the facts of this case. The bank had agreed to finance Rig-ney to the extent of 80 per cent, of the value of each ear load of lumber shipped by him where the invoices and bills of lading were indorsed and delivered to the bank. The bank knew of the arrangement between Rig-ney and Davis and Hughes, and, so knowing, it accepted orders from Rigney, directing the payment to Davis and Hughes of the amounts specified in them, which the bank knew was for the payment of the timber out of which the lumber was manufactured, and these amounts were paid to Davis and Hughes by crediting their account therewith, against which the latter were permitted to draw at their convenience. Having agreed to finance Rigney to the extent of 80 per cent, of the value of each shipment made under the circumstances stated, and the shipments in question having been made under such circumstances, and the bank under its agreement to finance Rigney having paid to Davis and Hughes in the manner stated the amount due them for the timber from which the lumber was manufactured, it was in no position, after having so paid them, to charge back to their account the amount so paid, and thus recoup itself for losses that it might sustain by reason of failure to collect from the consignees. Davis and Hughes, under these circumstances, did not occupy toward the bank the relation of one who deposits paper with tlie bank for collection, and wbo is given immediate credit tberefor wben sucb deposit is made, but by crediting tbeir account with tbe amount of tbe orders given by Rigney tbe relation of debtor and creditor was at once established between them and tbe bank, and tbe bank thereupon became unconditionally liable to them for tbe amounts thereof.

What we have said above sufficiently disposes of tbe second proposition under tbe first assignment of error, as well as tbe second and only other assignment.

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

Affirmed.
      <S=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes