text:
    GARCIA v. STATE.
    (No. 4460.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    1. Criminal Law <@=>510 — Accomplice Testimony — Corroboration.
    Code Cr. Proc. 1911, art. 801, prohibiting conviction on the uncorroboi’ated testimony of an accomplice, applies to testimony of one who stole goods on prosecution of one he got to haul them away.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126.]
    2. Criminal Law <§=>77 — '“Accessory.”
    Under Code Or. Proc. 1911, art. 86, defining an “accessory” as one who knowing of commission of an offense conceals the offender or gives him any other aid that he may evade an arrest or trial or the execution of his sentence, the acts making one an accessory are such as are personal to the offender; and merely hauling away for a thief the articles stolen is not enough.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 94, 95.
    For other definitions, see Words and Phrases, First and Second Series, Accessory.]
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Adrian Garcia, alias Chapo, was convicted, and appeals.
    Reversed and remanded.
    Jackson, Isaacks & Lessing, of El Paso-, for appellant. E. 'B. Hendricks, Asst Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the state penitentiary for two years for the offense of accessory to the crime of burglary.

Merced Garcia testified that he and one Quintero broke into a house and took therefrom blankets and underwear in boxes. After so doing, they went to appellant, who operated automobiles for hire, late in the nighttime, and found him asleep in his car. After waking him, they told him that they wanted him to take a load. He and they went in the car to the place where the stolen property was hidden. Garcia and Quintero put part of it in the car, and appellant drove with them to another point, and they took the articles out of the car and hid them. While appellant was waiting in his car, a police officer inquired of him why he was there and was told that he had hauled a man and woman who lived near there. Appellant had a quilt in the back of his car, which he told the officer he used for cover while he slept in his car. A few moments after this conversation, appellant went to the police station and told the captain of police that some persons had. rented his car and moved some property which had been stored in an alley, and that he thought there was other property there. _ The captain and appellant went to the place indicated and found some other property which had come out of the store. They also found that Garcia and Quintero had been arrested and the property which they had taken in the automobile and hidden had been found. Garcia also testified that appellant knew the property was stolen and that they gave him part of it to pay for hauling it in his car. None of the property was found in the possession of appellant.

The rules of evidence pertaining to accomplice testimony apply to that of the witness Garcia. Article 801, C. C. P., is to the effect that:

“A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient, if it merely shows the commission of the offense.” Vernon’s Ann. C. C. P. p. 732.

Aside from the evidence of the accomplice, Garcia, we fail to find in the record any testimony which connects appellant with the commission of the crime. A somewhat similar state of facts will be found discussed in the case of Franklin v. State, 53 Tex. Cr. R. 388, 110 S. W. 64, and in the case of Denson v. State, 47 Tex. Cr. R. 439, 83 S. W. 820; and the principles there applied in our opinion control the case in hand. Other cases in point are Maibaum v. State, 59 Tex. Cr. R. 386, 128 S. W. 378, and those listed in Vernon’s Ann. C. C. P. pp. 737, 738, notes 14 and 15.

Such testimony as is disclosed by the record, including that of the accomplice, in our judgment, fails to show that the appellant was an accessory to the offense of burglary.

“An ‘accessory’ is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial, or the execution of Lis sentence.” Branch’s Ann. P. C. art. 86, p. 369.

The acts which would make one an accessory are such as are personal to the offender. Construing article 86, supra, this court, in the case of Street v. State, 39 Tex. Cr. R. 136, 45 S. W. 578, says:

“We construe this to mean that, in order to be guilty of this offense, the person charged must give some personal help to the offender, in order that he may evade an arrest or trial for the offense committed.”

From the same case we take this further statement:

“As far as we are advisecl, the authorities all hold that the mere receiver of stolen property cannot be convicted as an accessory to the theft thereof, or to its burglarious taking.”

From this statement it follows that, under the law as declared by the decisions of this court, the evidence does not show appellant to have been an accessory to the offense of burglary.

Because the evidence does not support the conviction, the judgment of the lower court is reversed, and the cause remanded.
      ©r»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    HENLEY v. STATE.
    (No. 4438.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    1. Homicide <@=»189 — Evidence—Admissibility.
    In prosecution for murder under plea of self-defense, defendant’s evidence tliat deceased’s daughter was an immoral person and that at a certain “chicken garden” her conduct was improper was admissible, where defendant testified deceased’s daughter was initiating defendant’s daughter into similar conduct.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 398.]
    2. Homicide, <@=5187 — Evidence — Admissibility.
    In such case evidence that deceased’s daughter at his residence drank intoxicants and solicited men to purchase intoxicants for her should have been admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 390, 399%.]
    3. Witnesses <@=»345(3) — Impeachment—Single Offenses.
    In such case it was error to permit testimony of probation officer that a witness had been convicted as an incorrigible child.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1126.]
    4. Homicide <@=>189 — Evidence—Admissibility.
    In such case testimony of defendant’s daughter that deceased sent word by her to her father which she communicated that deceased would not permit defendant to take defendant’s daughter from deceased’s house should have been admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 398.]
    5. Homicide <@=>1S9 — Evidence—Admissibility.
    In such case insulting, conduct of deceased toward accused’s daughter was admissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 398.]
    6.Homicide <@=>163(2) — Evidence—Admissibility.
    In such case defendant’s statements that deceased had said that he visited the “chicken garden,” drank with women there and that they sat in his lap and had a good time generally should also have been admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 312-317.]
    7. Witnesses <@=>384 — Impeachment^-Heak-say.
    It was error to permit a witness in impeachment of another material witness to testify that such witness had told him that he knew that defendant was going to kill deceased.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1226.]
    8. Witnesses <@=>274(2) — Impeachment.
    Where defendant placed his' general reputation as a peaceable, law-abiding man in issue, it was error to ask witnesses if they did not know that defendant shot three times at ope of his own sons, in the absence of evidence that defendant did do so.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 966.]
    9. Witnesses <@=>274(2) — Impeachment:
    In prosecution for murder, defendant having placed his character as a peaceable, law-abiding-man in issue, it was error to permit the question of a witness whether he had heard that defendant drew a long knife and tried to cut the throat ' of a certain man, in the absence of evidence that defendant did do so.
    [Ed.- Note. — Por other cases, see Witnesses, Cent. Dig. § 966.]
    Appeal from Criminal District Court, Dallas County; W. L. 'Crawford, Jr., Judge.
    Tom Henley was convicted of murder, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at 25 years in the penitentiary.

Only a brief general statement is necessary. The deceased, J. S. Donaldson, and appellant lived with their respective families near one another, close to Dallas. Deceased had and ran a store in part of his residence. He was a drinking man, and when drinking or drunk was more or less insulting to others and made threats of personal violence towards others. He had living with him a daughter, whom Mrs. Donaldson testified had several years before then married, but had separated from her husband. -Other witnesses in the same community, and appellant, it seems, did not know of her previous marriage, seeming to regard her as not having been married. What testimony was introduced along this line indicated that at and shortly prior to the killing this daughter was pregnant, and this appears to have been noticed by appellant and others. The testimony would also indicate, or at least such an inference could well be drawn therefrom, that her pregnancy was caused, not by her husband, from whom she had been some time separated, but by some other man in illegitimate intercourse. She was a young woman, perhaps about, or not much older than, 20 years.

Appellant also had a daughter living with him, named Mrs. Marie Pool, some 18 or 20 years old, who had some four years before the killing married, and lived some years with her husband, by whom she had a child. She and her husband had separated some six months before the killing, and she went to her father’s to live. Appellant, some week or two before the killing, on different occasions, had left homo to work for others, and remained away from one to two or three days on these occasions. When he returned home he found that his daughter, Mrs. Pool, was not at his home, and ascertained that she was at deceased’s, or had been. Appellant testified that he had been told that deceased was his worst enemy, and one of his sons testified deceased had made a threat against appellant to the effect that, when he was threatening to kick this son off of his premises or the road near thereto, and the son stated to him in substance that he would tell his father and see if he would kick his father off, deceased replied:

“All right, go down and get your daddy; I would like to get a good chance at him, anyhow.”

Appellant also contended that deceased kept intoxicating liquors at his said store and residence and sold it, and that deceased’s said daughter drank such liquor and solicited young men who came there to purchase it for her to drink. Appellant was very much opposed to his daughter, Marie, going alone to deceased’s or staying there with them at any time, and when he found upon his return home that she was there, or he thought she was, he would inquire there for her, and that the deceased and his family knew that he opposed his daughter’s staying with them. He also sought to show that a man by the name of “Wine Joe” ran a “chicken garden” right near deceased’s at which he claimed intoxicating liquors were sold and drunk, and that his “garden” was frequented by immoral women, and that said deceased’s daughter frequented it and drank liquor therein, and perhaps disported herself in such a way as to at least reflect upon her chastity. Appellant also testified that on an occasion a few days previous to the killing he had heard that his daughter, Marie, was at deceased’s, and met him and inquired about it, when deceased said he did not know “a G- d- thing about it” and cared less. Appellant’s claim was that deceased was harboring his daughter at his house for improper purposes, and he regarded deceased and his said daughter as improper associates for her, and he was anxious and trying to keep her away from them.

On the morning of the killing appellant had returned home, after an absence of a day or two or three, and found his daughter, Marie, absent from home, and concluded she must be at deceased’s. He thereupon looked for her there, and some distance from deceased’s saw that she was there. He then went to deceased, who was working in a peanut patch near his place, to inquire about his daughter, to ascertain why deceased was harboring her at his house, and that, when he inquired if his daughter was at his house, deceased got mad and replied to him in substance as he had on the previous occasion, and immediately assaulted him with a hoe in such a manner as that appellant claimed clearly justified killing deceased in his own self-defense, and that he thereupon in self-defense shot and killed him.

Appellant has several bills of exceptions showing that the state objected to and the court excluded various items' of testimony by different witnesses, by whom he sought to show the said threat against him to his son and the deceased’s threat to kill a man by the name of Lear and several other items of testimony. The court allowed and approved these bills without any qualification or explanation. As a matter of fact, the statement of facts shows that much of this testimony was actually admitted and in evidence before the jury. We do not care to take any of these matters up and discuss them. The record shows them. Why such bills were allowed when the record shows the testimony was'actually admitted, and properly so, we cannot understand.

There were other items of testimony, however, which were excluded, and proper bills allowed. Without taking these up separately, we will pass upon the questions raised thereby.

In our opinion, all of the testimony offered by appellant which was excluded as to the said “Wine Joe’s” place and the course of conduct carried on therein and all of deceased’s daughter’s conduct thereat should have been admitted. Also all that testimony which was excluded wherein appellant sought to show the conduct of deceased’s daughter at his residence as to her drinking intoxicants and her soliciting the purchase of intoxicants for herself by men who came there should have been admitted; particularly the testimony of Banzett, which was excluded, shown by appellant’s bill 19. The court erred also in permitting the testimony of probation officer Chick to the effect that said Banzett had been convicted as an incorrigible child, as shown by appellant’s bill 26. Banzett could not be impeached by showing conviction in any such matters. The proposed testimony of appellant by his daughter, Marie, to the effect that deceased sent word by her to him, which she communicated, that he (deceased) would n&t permit him to take her away from his house, as shown by bill 17, should have been admitted. The insulting conduct of deceased towards appellant’s daughter, as shown by bill 16, should have been admitted. The proffered testimony by appellant, shown by bill No. 20, that deceased had told him that he (deceased) visited said “Wine Joe’s” chicken garden, drank with various women there, and of the women sitting in his lap at said place, and he having a good time with them generally, should also have been admitted. All this excluded testimony was admissible so that the jury could understand the circumstances surrounding appellant leading up to the killing and which operated on his mind when he killed deceased, and thereby be better able to properly assess his punishment, if they found him guilty; also it might have raised a lower grade of homicide than murder.

There was no error in refusing those special charges of appellant, which the court refused. ’

As presented by appellant’s bill 15, we think the court’s action in excluding the testimony of appellant's wife of what he said to her soon after he killed deceased to the effect that he killed deceased in self-defense was not res gestee, and was properly excluded by the court.

Otis Henley, one of appellant’s sons, was a very material witness, and gave material testimony for him¡ The state was permitted to have Mr. Woods testify in impeachment of Otis Henley to the effect that Otis stated to him on a certain occasion soon after the hilling that he (Otis) knew that his father, appellant, was going to kill Mr. Donaldson. The admission of such impeaching testimony as this has been uniformly held error by this court since the opinion in Drake v. State, 29 Tex. App. 265, 15 S. W. 725.

A large number of witnesses testified that the general reputation of appellant as a peaceable, law-abiding man was good. In cross-examination of some of these the state asked, in substance, if the witness did not know about appellant shooting three times at one of his own sons and of some other claimed unlawful acts ' by appellant. It is permissible to ask witnesses on cross-examination under such circumstances about such specific acts of an accused, but it must be shown that he had committed the act about which the witness is asked, not a mere asking if the witness did not know that the accused had committed such act, without as a matter of fact showing that he had committed the act. The court, if such questions arise on another trial, will be governed in the admission of such testimony by requiring the proper predicate to be laid before such questions are asked and answered. Particularly does appellant’s bill 31 show error along this line. That bill shows, without any kind of testimony having been introduced that appellant had even committed such an act, that the state was permitted to ask a witness on cross-examination:

“Did you ever hear of this appellant drawing a long, keen-bladed knife and attempting to cut the throat of a man by the name of Rawlins in the Lancaster community?”

This question and answer to it should not be permitted on another trial without first laying the proper predicate to show that appellant had committed such an act.

The judgment is reversed, and the cause remanded.
      <@=>For other cases'see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J. MORROW, J. DAVIDSON, P. J.

text:
    CARPENTER v. STATE.
    (No. 4451.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    1. Perjury @=>21 — Indictment—Requisites.
    In an indictment for perjury alleged to have been committed before a grand jury, the allegations must show that the matter under investigation before the grand jury was a violation of law.
    [E'd. Note. — Eor other cases,.see Perjury, Cent. Dig. §§ 72-75.1
    2. Perjury @=325(5) — Indictment — Requisites.
    Indictment for perjury by falsely testifying before the grand jury, in a prosecution for forgery that another than the witness then accused had signed an order for goods, alleging that it was, before the grand jury, a material inquiry whether another had signed the order, was in-. sufficient; the material inquiry being whether accused had signed the order.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 85.]
    3. Perjury @=321 — Indictment — Sufficiency.
    An indictment for perjury alleged to have been committed before the grand jury should allege that the jury was investigating whether an offense had been committed in the county, since it has no right to investigate a crime in another county, rape excepted.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 72-75.]
    4. Perjury @==24 — Indictment — Sufficiency.
    In an indictment for perjury, it is always Recessary to allege distinctly and clearly what the false testimony was upon which the alleged offense is based and to traverse it.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 81.]
    5. Perjury @=>24 — Indictment.
    In indictment for perjury by testimony that another had signed an order for goods, before the grand jury investigating a charge of forgery against the witness, it is advisable to set forth the alleged forged order.
    Cllicl. Note. — Eor other cases, see Perjury, Cent. Dig. $81.
    Appeal from District Court, Comanche County ; J. I-I. Arnold, Judge.
    W. D. Carpenter was convicted of perjury, and he appeals.
    Reversed, and cause dismissed.
    Smith & Palmer, of. Comanche, for appeJ lant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of perjury, alleged to have been committed before a grand jury, and assessed the lowest punishment.

The only question necessary to be decided for the final disposition of this cause is whether the indictment is fatally defective. Appellant made a motion to quash it on many grounds. It is unnecessary to state them. We will discuss only some of them. To do this, it will be ne’cessary to copy the material allegations.

The necessary preliminary allegations as to the organization of the grand jury which preferred this indictment are in the usual form. Also, the allegations, as' to the court, the officers thereof/ the organization of the grand jury, the administration to appellant of the oath prescribed by law by the foreman at the term and time when appellant is alleged to have appeared and testified before it, are properly alleged; and, as no question is raised thereabout, it is unnecessary to copy that part of the indictment. After all these necessary proper allegations in regular and due form, the indictment alleges:

“Whereupon it then and there became and was material inquiry before said grand jury, and necessary for the due administration of the criminal laws.of the state of Texas and the-ends of public justice, whether one Jack Jenkins in said county and state of Texas on or about the 26th day of Hay, A. D. 1915, did sign and make a written order purchasing 1,650 apple trees, and ordering same for fall delivery, from Hoffman Nurseries of Denton, Tex., promising and agreeing in said order to pay the sum of $165 for said apple trees upon their delivery to him as specified in said contract.
“And the said W. D. Carpenter, as such witness before said grand jury and under the sanction of said oath so administered to him, as aforesaid, on the day and date first above written, did deliberately, willfully, and corruptly say and testify, in substance and effect, that: ‘In about March, 1915, I sold Jack Jenkins a bill of pecan trees amounting to $22.50, I think, and at that time he told me that he had about 23 or 24 acres of land that he wanted to set in apples, and I took some of the soil and sent it to A. & M. College to have an analysis made of it, and it came back and I was down there about May the 18th to show him the analysis of the soil. It was in the forepart of the day I was over there, and when I showed him the analysis he said he would like to make the order, but would like to wait until he could see further about his crops. I told him I could not make him prices until I saw what kinds of trees he wanted, and we figured out the number it would take for his land. Then he made the selection of the various kind of trees he wanted, and I made a memorandum of them on my order blank. He said in ten days or two weeks he could give me a definite answer. Awhile after that I was in the neighborhood below there and came by to see Jenkins, and he was plowing on a riding cultivator in a small patch near the house, and I just filled out the dates, etc., on the bottom of the order, and he said, “I have decided to give you my order on one condition;” that is, that later on if his crops, hogs, etc., did not look any too good, he would have the right to countermand the order. I told him I would do that with him, and he then signed the order. I told him that we generally sent in those orders to the nursery in September and August, and if he should countermand I would like for him to do so before that time. I don’t suppose he ever countermanded the order as the trees were shipped out to De Leon’—meaning thereby to say and swear and thereby saying and swearing that in truth and in fact the said Jack Jenkins had agreed to buy the said order of trees from said nursery, and had signed the order for the same in his presence at the time and in the manner as above set out; which said testimony was material to the issue under investigation. Whereas, in truth and in fact, as he the said W. D. Carpenter then and there well knew, the said Jack Jenkins had not agreed to make said order, and had not signed his name to said written order at the time and in the manner above set out nor at any time whatsoever and had not agreed with the said W. D. Carpenter that he would buy said trees, and which said statements so made by the said W. D. Carpenter, before and to said grand jury, was deliberately and willfully made and was deliberately and willfully false, as he, the said W. D. Carpenter, then and there well knew.”

It is seen therefrom that it is alleged, that the material inquiry before the grand jury and necessary for the due administration of the criminal laws, etc., was whether one Jack Jenkins in said county and state, on or about May 26, 1915, did sign and make a written order purchasing 1,650 apple trees and ordering same for fall delivery from -the Hoffman Nurseries, promising and agreeing therein to pay $165 therefor upon the delivery to him as specified in said contract.

It is well settled that, in an indictment for perjury..alleged to have been committed before a grand jury, the allegations must show that the matter under investigation before the grand jury was a violation of law; in other words, that what the grand jury was investigating when the alleged false testimony was given before it was the violation of some law. Gallegos v. State, 50 Tex. Cr. R. 191, 95 S. W. 123; Pigg v. State, 71 Tex. Cr. R. 600, 160 S. W. 691; Meeks v. State, 32 Tex. Cr. R. 420, 24 S. W. 98; Weaver v. State, 34 Tex. Cr. R. 554, 31 S. W. 400; McMurtry, 38 Tex. Cr. R. 521, 43 S. W. 1010; Higgins v. State, 38 Tex. Cr. R. 539, 43 S. W. 1012; and other cases. We do not overlook that the Meeks, MeMurtry, and Higgins Cases, supra, were expressly overruled in McDonough v. State, 47 Tex. Cr. R. 230, 84 S. W. 594, 122 Am. St. Rep. 684, on one point. But the point on which they were overruled is not the point for which they are now cited.

Now, this indictment nowhere alleges that it was a violation of any law, nor was it any violation of any law, for Mr. Jenkins to sign, and make the written order purchasing said apple trees, etc., which the indictment alleges was the material inquiry before the grand jury. In fact, what is alleged in the indictment as the material inquiry before the grand jury, as shown by this record, was not the, material inquiry at all. Instead, the material inquiry was, in substance, whether appellant had signed Jenkins’ name to said written order without his authority, knowledge, and consent, so as to be a forgery by him of said Jenkins’ name to said order. Jenkins might or might not have made and himself signed the order. Whether he did or did not would be no offense. But it would be an offense for appellant without Jenkins’ permission, authority, etc., to sign or forge Jenkins’ name to said order. In reality that was what was under investigation. As an incident thereto, whether Jenkins signed his own name thereto was proper to be determined. Even if he did not, no crime was committed unless some one else signed his name thereto without his authority, etc.

There is no specific allegation that the grand jury was investigating whether an offense had been committed in Comanche county. It would be better, if not necessary, for the indictment to so specifically, allege. The grand jury has no right to investigate whether an accused may have committed a crime in some county other than the one in which it was organized and sitting—rape excepted. While Jenkins lived in Comanche county, appellant lived in Erath. If appellant forged - Jenkins’ name, he might have done so in -Erath, and not Comanche.

In an indictment for perjury, it is always necessary to allege distinctly and clearly what the false testimony was which is made the basis of the offense and traverse it. It may be proper, as a preliminary matter and to show the connection in which the false testimony was given, to also allege some of the .other .testimony the witness gave at the time. But such other testimony should not be confused with that which is made the basis for perjury. Thus, ip this case, the indictment alleges that appellant “did deliberately, willfully and corruptly say and testify, in substance and effect that” — then gives /what he testified as to Jenkins’ ordering some pecan trees, etc., and that Jenkins told him about his 23 or 24 acre tract of land he wanted to plant in apple trees, etc. It seems none of this introductory testimony may have been intended to be made the basis of perjury.. In fact, the statement of facts shows most of this preliminary testimony was actually true. The. allegations just above quoted, alleging appellant “did deliberately, willfully, and corruptly,” etc., would indicate that the whole of the following testimony of appellant was made the basis of perjury. Whereas, as stated, most of this testimony was actually true, and it must not have been intended that all of his testimony copied was the false testimony which was made the basis of perjury. This should be made clear and distinct if another indictment is preferred.

It would not be necessary to copy, in the indictment, the alleged forged order; but, if not copied, it would be necessary to allege such a description of it as to clearly identify it, and that such description ’ should correspond with the written order when it is offered in evidence.

Some of appellant’s other objections to the indictment may be well taken, but we deem it unnecessary to take them up and discuss them. Doubtless, if another indictment is preferred, su'ek objections will be considered by the pleader and, when'necessary, met by proper and clear allegations.

In our opinion, the indictment is fatally defective.

Hence the judgment is reversed, and the cause ordered dismissed.

MORROW, J.

I concur in the disposition of the case. If a new indictment is found, it would be best to copy therein the alleged forged order.

DAVIDSON, P. J.

I agree with conclusion of Judge MORROW as above stated.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    ZIMMERMAN LAND & IRRIGATION CO. v. ROONEY MERCANTILE CO. et al.
    (No. 679.)
    (Court of Civil Appeals of Texas. El Paso.
    April 19, 1917.
    Rehearing Denied May 17, 1917.)
    1.Garnishment <@=33 — Property Subject to — Balance Due on Contract.
    Where a construction contract was satisfactorily completed by the contractor’s successor, money due the contractor when he quit was subject to garnishment by his creditors.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 54-58.]
    2. Garnishment <@=51 — Property Subject to — Prior Assignments.
    A contractor’s assignment of his contract rights, under which the assignee claimed only the balance due after the contractor’s debts were discharged, does not prevent the- contractor’s materialmen, etc., from subsequently garnisheeing amounts due him under the contract.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 74, 97-101.]
    3. Assignments <@=58 — Consent op Debtor-Necessity.
    The debtor’s consent to an assignment of sums due under a construction contract is unnecessary.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 121-123.]
    4. Garnishment <@=204 — Intervention by Assignee.
    The assignee of a fund may intervene in garnishment proceedings to protect its interest in the garnished fund.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 396.]
    5. Garnishment <@=20-A-Assignee’s Claim —Judgment.
    That a judgment obtained by an intervener in garnishment proceedings against the debtor had been appealed is immaterial, where the in-tervener also had another judgment exceeding the face of its claim which had not been appealed.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 396.]
    6. Garnishment <@=>223 — Assignee’s Claim— SUFFICIENCY OE PLEADINGS.
    A judgment awarding interveners in a garnishment proceeding payment of a claim which the pleadings indicated belonged to others, held not supported by the pleadings.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 418.]
    7. Appeal and Error <@=>223 — Review — Judgment Unsupported by Pleadings.
    A judgment unsupported by the pleadings is an error of law apparent upon the record’s face, which the Court of Civil Appeals will correct on its own motion.
    [Ed. Note. — For other cases, see Appeal and • Error, Cent. Dig. §§■ .1338-1342, 1344, 1346-1350.]
    8. Garnishment <@=191 — Proceedings to Enforce — Attorney’s Fees.
    A garnishee is not entitled to attorney’s fees, where it erroneously denied, and litigated, its indebtedness.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 372-379.]
    Appeal from District Court, Pecos’County; Joseph Jones, Judge. . .
    Garnishment action by the Rooney Mercantile Company against the Zimmerman Land & Irrigation Company, in which E. W. ahd John Bennett, copartnery as E. W. Bennett & Son, intervened. Judgment for plaintiff and interveners, and defendant appeals.
    Affirmed as to plaintiff, and affirmed, upon condition as to interveners.
    The Rooney Mercantile Company, on February 29, 1916, recovered a judgment against the Baker Manufacturing Company of Texas, a copartnership, and the individual members thereof. Upon this judgment, there was a balance 'due of $1,559.14, with interest. The Rooney Mercantile Company on June 13, 1916, sued out a writ of garnishment upon the judgment against the Zimmerman Hand & Irrigation Company. On October 3, 1916, the garnishée answered denying the existence of any facts or indebtedness which would authorize a judgment against it unless it was indebted by virtue of certain facts which it set forth in its answer. On January 16, 1919, garnishee entered into a written contract with the Baker Manufacturing Company, by the terms of which the latter agreed to build an earthen dam for the former. The compensation was to be at the rate of 14 cents per cubic yard of dirt moved. The terms of payment were set forth in the fourteenth paragraph of the contract as follows:
    “All payments made by party of first part to party of second part shall be based on monthly estimates made by first party’s engineer of the actual cubic yards in that portion of the finished work which has been placed in accordance with these specifications and to the satisfaction of the first party’s engineer. The party of the first part will then pay to the party of the second part for 85 per cent of such finished work, the remaining 15 per cent, paid when the entire dam is completed in every way as per specifications, and has been accepted by the first party through their engineer.”
    It seems, that the Baker Manufacturing Company defaulted in the completion of the dam, and on August 13, 1915, it entered into a contract with C. W. Lambert for the completion of the work, which reads:
    .“Know all men by these presents: That the Baker Manufacturing Company of Texas, a private partnership doing a- general contracting business with the public in reference to the building of roads, dams, reservoirs, etc., in Texas, and being desirous of disposing of any interest that we had or may have in a certain reservoir site in Pecos county, Texas, near the Pecos river, and for which we have a contract with the owners thereof, the Zimmerman' Land & Irrigation Company, a corporation under the laws of the state of Texas, said contract having been executed by both parties for the purpose of the Baker Manufacturing Company of Texas putting in a certain dirt dam to make a reservoir for the impounding and holding of waters of the Pecos river, and flood waters, and being desirous, as before stated, of terminating any interest or control we had with the Zimmerman Land & Irrigation Company with reference to the construction of said dam, do by these presents hereby transfer and assign to C. W. Lambert for the sum of one dollar cash, and other valuable considerations not necessary herein to mention, all our right, title and interest in and to said contract and authorize the said Lambert to make whatever arrangements and contract with the said Zimmerman Land & Irrigation Company, that he or they may see fit to enter into for the further prosecution and completion of said dam and reservoir. We also hereby transfer and assign, set over and convey to the said Lambert all of the tools, machinery, horses, wagons, plows and in fact machinery of every kind, lumber and blacksmith shop used or to be used in the construction of said dain for said reservoir; also all horses and mules; in fact everything that we are possessed of in .reference to the use of said work and now situated in said Pecos county, at said reservoir, the said Lambert- to have the use, control and -management of said above-described property for whatever length of time is .necessary for the proper. due and necessary completion of said dam for said reservoir, and we hereby.relinquish any and all rights that we may have in and to the said property until the said completion of said dam and reservoir, and hereby relinquish any right, title or interest that we may have or can have in and to said contract with the Zimmerman Land & Irrigation Company for the construction of said dam, etc., for said reservoir.”
    On August 23, 1915, garnishee entered into a contract with Lambert-for. the completion of the dam, agreeing to pay the sum of 14 cents per cubic, yard for all dirt moved. The garnishee was to advance to Lambert not to exceed $800 per month to enable him to pay for labor and supplies in performing his contract, and upon the completion of the dam, if there was any balance due to Lambert, the same was to be applied by garnishee to the payment of debts contracted by the Baker Manufacturing Company while it was engaged in building the dam. If any balance remained after the payment of the debts of the Baker Manufacturing Company the same was to be paid to Lambert or his order.
    When Lambert completed the dam, the garnishee had on hand the sum of $3,801.38, which represented the 15 per cent, reserve fund of the contract price under the contract between the Baker Manufacturing Company and garnishee, of date January 16, 1915, and which had been earned by the Baker Manufacturing Company at the time it defaulted in the completion of its contract. In other words, at the time the Baker Manufacturing Company defaulted in the completion of its contract, said sum of $3,801.38 had been earned by it for work theretofore done, and said sum had been retained by the garnishee under the 15 per cent, reserve fund clause contained in the fourteenth paragraph of the contract of January 16, 1915.
    Garnishee asked for an attorney’s fee of $300, and that it be discharged from any liability upon the writ of gaz-nishment in the cause. On October 2, 1916, E. W. Bennett & Son, a partnership composed of E. W. and John Bennett, intervened in the garnishment proceeding, alleging:
    (1) That the Zimmerman Land & Irrigation Company, garnishee, was indebted to the Baker Manufacturing Company, in a large sum of money.
    (2) That the Baker Manufacturing Company was indebted to petitioners in the sum of $2,107.04, with interest from October 16, 1916, and $- costs, as evidenced by a judgment in the district coui-t of Pecos county, entered October 16, 1915. That the Baker Manufacturing Company, gave Bennett & Son an order reading as follows:
    “We, the Baker Manufacturing Company, of Texas, a partnership composed of H. P. Mitchell, A. D. Jamison, A. M. Warren and H. T. Brig-gance, with main office at Sweetwater, Texas, being indebted to E. W. Bennett & Son in the sum of $1,672.60, also to the Bennett Hotel, a partnership composed of E. W. Bennett and W. S. Dunbar, in the sum of $346.30, do hereby in consideration that the said E. W. Bennett & Son and tlie said Bennett Hotel, release and relinquish any claim that they may have to the funds due the said Baker Manufacturing Company, from Pecos county, for work done on the public highways of said county, and permit and allow us to draw down and receive all the said funds and amounts due Baker Manufacturing Company, by Pecos county, do hereby in order to better secure the payment of the amounts stipulated above due said Bennett & Son and the said Bennett Hotel, transfer and set over enough to the moneys due us and to become due us by the Zimmerman Land & Irrigation Company, a corporation, with its principal office in Pecos county, Texas, on a certain contract that the said Baker Manufacturing Company of Texas have with the said Zimmerman Land & Irrigation Company for the building and constructing of a dam and reservoir 'in Pecos county, Texas, for the said irrigation company, and reserved by the Zimmerman Land & Irrigation Company until the completion of the work, the same being 15 per cent, on each dollar of the estimate of the work, and of the work when finally completed.
    “And we hereby direct and authorize said Zimmerman Land & Irrigation Company, their agents and representatives, to pay over the amount stipulated to E. W. Bennett & Son and the amount herein stipulated as to the Bennett Hotel and to E. W. Bennett and W. S. Dunbar as set out herein.
    “Witness our hands at Ft. Stockton, Texas, this 17th day of May, 1915. Baker Manufacturing Company, by A. M. Warren.”
    That said order was presented to and. accepted by the garnishee Zimmerman Land & Irrigation Company, and the said garnishee agreed to pay same out of the 15 per cent, reservation therein referred to upon the completion of the work, for which the said Baker Manufacturing Company of Texas had contracted to do for the said garnishee.
    (3) That the work has been completed in accordance with the contract between garnishee and the Baker Manufacturing Company, and that the 15 per cent, reserve fund is now due and unpaid, and is largely in excess of their debt, and that they had a claim on any moneys due by the Baker Manufacturing Company, which was a prior lien and right to that of the Rooney Mercantile Company, or any one else on said fund.
    It is unnecessary to detail the remaining allegations of the interveners’ plea. The interveners asked that they have judgment against the Zimmerman Land & Irrigation Company for their debt, and that it be declared to be a first and prior claim against the garnishee and be ordered paid out of the funds owing by the garnishee to the Baker Manufacturing Company out of said 15 per cent, reserve fund.
    Upon trial before the court, a judgment was entered in favor of the Rooney Mercantile Company against the garnishee in the sum of $1,650, with interest from date, that being the balance due upon the judgment of the Rooney Mercantile Company against the Baker Manufacturing Company, upon which judgment the garnishment herein was sued out. Judgment was also rendered in favor of E. W. Bennett & Son for the sum of $2,-01S.90, with interest. It will be noted in this connection .that the aggregate of the two sums of money assigned to E. W. Bennett & Son and to the Bennett Hotel by the written assignment set up in interveners’ plea is said sum of $2,018.90.
    Findings of fact and conclusions of law were filed by the court, from which we make the following condensed statement:
    That the Rooney Mercantile Company had a judgment against the Baker Manufacturing Company, and the individual members thereof as set up in the. application for a writ of garnishment, upon which judgment there was a balance due in the amount for which judgment was rendered by the court in favor of the Rooney Mercantile Company as above stated. That the garnishment herein was sued out upon said judgment on June 13, 1916, and upon said date served upon garnishee. That 'the sum of $3,S01.38 wa's in the hands of the garnishee, having accrued by reason of the 15 per dent, reserve clause in the construction contract between garnishee and the Baker Manufacturing Company. That the contract under which said sum of $3,801.38 accrued to the Baker Manufacturing Company is as follows: (The court then quotes the contract between garnishee and Baker Manufacturing Company, made January 16, 1915, the contents of which have been above stated). That on August 13, 1915, the Baker Manufacturing Company entered into a contract with C. W. Lambert for the completion of the dam, which the Baker Manufacturing Company had contracted to construct for garnishee, and said contract is as follows: (The trial court here quotes the contract of August 13, .1915, quoted in full above.) That on August 23, 1915, the garnishee entered into a contract with Lambert for the completion of the dam as follows: (The court then quoted the contract between garnishee and Lambert of August 23, 1915, the contents of which have been stated above). That Lambert completed the dam on September 30, 1916, in compliance with all of the aforesaid contracts, and that the -same was completed as a whole and accepted by the garnishee. That garnishee, upon completion of the dam by Lambert, owed the Baker Manufacturing Company the sum of $3,-801.38 on account of the 15 per cent, held out by the Baker Manufacturing Company on the work done by it up to the time that the contract was turned over to Lambert for completion. That interveners have an assignment from the Baker Manufacturing Company on the garnishee for the sum of $2,018.90 that is to be paid out of any money due the Baker Manufacturing Company of Texas from the garnishee, which assignment is as follows: (The court then quotes assignment set up in the interveners’ plea). That the claim of interveners is a just claim against the garnishee for the sum of money remaining in its hands due the Baker Manufacturing Company, after paying the claim of the Rooney Mercantile .Company, not to exceed, in both claims, said sum of $3,801.38. That $300 would be a reasonable attorney’s fee for garnishee's attorney if be were entitled to any fee under the law.
    Based upon the foregoing findings the court made the following conclusions of law:
    (1) The three instruments of writing set out first in the findings of fact should be read together, and when so considered, they form one continuous contract, and the completion of the work by Rambert and its acceptance by the Zimmerman Land & Irrigation Company was a full compliance with the contract between the Zimmerman Land & Irrigation Company and the Baker Manufacturing Company of Texas, and entitled the latter, or its creditors, to the 15 per cent, that was retained when the work was turned over to the said Lambert.
    (2) The $3,891.38 held back by the Zimmerman Land & Irrigation Company from the Baker Manufacturing Company of Texas became due and was subject to plaintiffs writ of garnishment and the interveners’ claim when the work was completed by Lambert and accepted by the garnishee on September 30, 1916.
    (3) Plaintiff is entitled to judgment for its $1,559.14, with 10 per cent, interest from February 29, 1916, and the intervener is entitled also to recover its claim against the garnishee, both claims, however, not to exceed the sum of $3,801.38.
    (4) I find that the garnishee is not entitled to any attorney’s fee in this case.
    There is no statement of facts in the record, the statement heretofore filed having been stricken out upon motion. From the judgment entered, the garnishee has appealed.
    X D. Martin and Howell Johnson, both of Ft. Stockton, and Stafford; Brady & Anderson, of El Paso; on appeal only, for appellant. Hadden & Smith and Williams & Jackson,’ all- of Ft. Stockton, for 'appellees.
   HIGGINS, J.

(after stating the facts as above). It is apparent that the only issue here involved is whether or not the court properly subjected said sum of $3,-801.38 to the payment of the judgments held by the Rooney Mercantile Company and in-terveners against the Baker Manufacturing Company. It is first contended that the fund in controversy was not owing by the garnishee. This is upon the theory that the fund was forfeited and lost by the Baker Manufacturing Company by reason of its failure to complete its construction contract. The fourteenth paragraph of this contract is quoted above, and is the only portion thereof which has any bearing upon this question. There is no forfeiture clause in the contract. The construction contract was completed by Lambert and accepted by garnishee.' The trial court found that the'relinquishment by the Baker Manufacturing Company to Lambert of its interest in the contract was for the purpose of completing same. It thus follows that when Lambert completed the contract for the Baker Manufacturing Company and the work was accepted by the garnishee, the garnishee then became liable to pay the 15 per cent, reserve fund which had accumulated and which had been earned at the time of the assignment by the Baker Manufacturing Company to Lambert.

The next assignment is that the court erred in rendering judgment in favor of the Rooney Mercantile Company because it appears that prior to the issuance and service of the writ of garnishment, the Baker Manufacturing Company had transferred and assigned the fund in controversy to Lambert. Upon this phase of the case, the majority of the court are of the opinion that the assignment to Lambert must be interpreted in connection with the contract he made with the garnishee to complete the dam, and in so construing them it seems clear that the amount 15 per cent, reserve fund was assigned, subject to the payment of all debts then owing by Baker Manufacturing Company and subject to payment of all debts contracted by Lambert in the completion of the dam. The assignment to Lambert is quoted above. The contract between Lambert and garnishee as here applicable reads:

“This contract between Zimmerman Land & Irrigation Company * * * and C. W. Lambert * * * witnesseth: That the first party having heretofore entered into a contract with Baker Manufacturing Company * * * for the construction of a dam, * * * and said company having failed to carry out its part of this contract, * * * and same having been canceled by the party of the first part and said cancellation acquiesced in by said company, * * * and said Lambert having been at work in said dam for said Baker Manufacturing Company and being familiar with the terms of the contract * * * and being desirous of taking it over according to its terms and specifications, * * * etc., wherefore the party of the first part herein binds itse’lf to pay said Lambert (as specified) as it is finished. * * * It is expressly understood and agreed that because of the fact that the Baker Manufacturing Company had contracted debts * * * in the construction work * * * and the said Lambert hereby agreeing as a part of the consideration for his work, in payment of same, that the over-plus, if any, after making or paying advancements provided for in this contract, shall be retained by the first party and applied and paid to the different parties to whom Baker Manufacturing Company became indebted * * * according to their priority and' under pro rata basis, but if all debts are paid in full, then the surplus, if any, shall go to said Lambert or his order. The said Lambert having knowledge of all these facts, is desirous of paying said indebtedness of the said Baker Manufacturing Company.”

That on the 13th day of August, 1915, the Baker Manufacturing Company executed an instrument in effect as follows:

“The Baker Manufacturing Company * * * being desirous of disposing of any interest that we had or may have in a certain reservoir site * * * for the construction of which we have a contract with the Zimmerman Land & Irrigation Company * * * and being desirous of terminating any interest or control * * * with reference to the construction of said dam, do by these presents transfer and assign to C. W. Lambert * * * all our right, title and interest in and to said contract, and authorize the said Lambert to make whatever contract that he or it may see fit to enter into for the further prosecution and completion of said dam, * * * and hereby relinquish any right, title or interest that we may have or can have in and to said contract,” etc.

(A verbatim copy of this instrument is quoted above.)

It will be noted that Lambert by signing the above has declared that he is only to have the balance, if any, after all debts are paid. And garnishee does not defend upon the pi'oposition that after the cost of construction (all debts) were paid, there were no funds left "in its hands, but claims the entire 15 per cent, reserve fund as a forfeit because Baker Manufacturing Company did not complete its contract. In the reasoning of the majority, the writer does not concur. In the conclusion that the assignment should be overruled he does concur. It will serve no useful purpose to state the grounds of his concurrence.

Error is assigned to the judgment rendered in favor of interveners, Bennett & Son; five propositions being urged in support of the assignment, as follows:

(1) “The order of the 17th day of May, 1916, given by Baker Manufacturing Company to Bennett & Son without an acceptance by garnishee did not render garnishee liable.”
(2) “If the order given by Baker Manufacturing Company in favor of Bennett & Son was accepted by garnishee that would not authorize Bennett & Son to intervene in a garnishment suit, but their remedy would be a suit against garnishee upon the acceptance.”
(3) “Bennett & Son, interveners, alleged an unconditional acceptance of the order given by Baker Manufacturing Company, and their own proof showed only a conditional oral acceptance which constituted a fatal variance.”
(4) “This being a garnishment proceeding brought by another creditor, interveners not having shown any lien and not having sued out a writ of garnishment, the court was without jurisdiction to render judgment in their favor.”
(5) “Interveners having alleged in their petition that their claim against garnishee was reduced to judgment, and that the suit in which judgment was rendered was an appeal in the Supreme Court, this court is without jurisdiction to adjudicate interveners’ intervention.”

The instrument dated May 17, 1915; given by the Baker Manufacturing Company to Bennett & Son, constituted an assignment of the 15 per cent, reserve fund to the extent of $1,672.60. Interveners’ judgment described in its pleading was for an amount in excess of the amount so transferred to interveners. Suit could have been maintained upon the assignment, and it is immaterial whether or not there had been an acceptance thereof by the garnishee. It being an assignment of an interest in the garnished fund, Bennett & Son had the right to intervene to protect their interest. Buchanan v. Lumber Co., 134 S. W. 292; Insurance Co. v. Patterson, 35 Tex. Civ. App. 447, 80 S. W. 1058. It is likewise immaterial whether the proof showed a conditional or an unconditional acceptance. Recovery was properly allowed if there had been no acceptance at all. It follows that the first four propositions are without merit.

As to the fifth, this, too, has no merit. It is true that there is another allegation in the plea .of intervention which has not been quoted, that interveners had a judgment against the Baker Manufacturing Company for $860 rendered October 16, 1915, which was then pending upon appeal in the Supreme Court, but the plea of intervention sets up another judgment from which no appeal is pending in sum considerably greater than the amount transferred to the interveners by the Baker Manufacturing Company, and it is therefore immaterial that the other judgment described in the intervention is pending on appeal. The court was warranted in subjecting to the payment of the unappealed judgment the amount of money so transferred to Bennett & Son. In connection with this assignment, we desire, to point out that the assignment pleaded by the interveners shows the transfer to them of $1,672.60 only. E. W. Bennett & Son, the interveners, are a partnership composed of E. W. Bennett and John Bennett. The assignment mentioned also assigns the sum of $346.30 to the Bennett Hotel, a partnership composed of B. W. Bennett and W. S. Dunbar. The court has allowed to the interveners, E. W. Bennett & Son, both of the sums of money assigned by the instrument pleaded by interveners. There is no pleading that E. W;. Bennett & Son have acquired the $346.30 which was transferred to the Bennett Hotel. To this extent, therefore, the judgment in favor of the interveners is unsupported by the pleadings. In the absence of a statement of facts, it will be assumed that interveners had acquired from the Bennett Hotel an assignment of said sum of $346.30, and that the proof. was sufficient to warrant the court in adjudging to the interveners the aggregate amount of the sums so transferred by the Baker Manufacturing Company to Bennett & Son and the Bennett Hotel. But, however the proof might be, the court would not be warranted in entering judgment for the aggregate amount in the absence of pleading showing that the ’interveners had acquired from the Bennett Hotel the right to said sum of $346.30. The court, therefore, erred in entering judgment in favor of iilterveners for said sum of $346,-30. This- error is not called to our attention by appellant, but a judgment unsupported by the pleadings is an error in law apparent upon the face of the record, and it is the duty of this court to correct the same, though not assigned or called to our attention in any way.

Error is also assigned to the court’s refusal to allow garnishee an attorney’s fee. Upon the facts disclosed by the record, appellant seems to have assumed the attitude of a litigant. It contends that the moneys accruing under the 15 per cent, reserve fund clause of the construction contract were forfeited, and that it is not indebted to the Baker Manufacturing Company. Under these circumstances, the court correctly refused the allowance of an attorney’s fee. Moursund v. Priess, 84 Tex. 554, 19 S. W. 775; Presnall v. Bank, 151 S. W. 873. The conclusions above indicated dispose of all assignments.

The judgment in favor of the Rooney Mercantile Company is affirmed. The judgment in favor of interveners is affirmed, with costs, upon condition that within 15 days from date a remittitur of $346.30, with interest thereon at rate of 6 per cent, per annum from October 1, 1916, be filed. If such remittitur be not so filed, then the judgment in favor of interveners shall be reversed and remanded. It is so ordered.
      @=For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: LANE, J.

text:
    CLEAVER v. DRAKE-BRANNUM CONST. CO.
    (No. 7371.)
    (Court of Civil Appeals of Texas. Galveston.
    March 17, 1917.
    On Motion for Rehearing, April 24, 1917.)
    1. Contracts &wkey;>303(l) — Failure to Perform — Liability.
    If a voluntary contract makes no exemption from liability for failure to perform the undertaking evidenced by the- contract, the law will not interpolate what the parties have not stipulated, and thereby relieve them from liability for nonperformance by reason of the intervention of some unforeseen occurrence over which they had no control, except when the law compels the making of the contract, or intervenes to prevent performance.
    ■[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1411, 1420-1423, 1440-1443.]
    2. Bailment &wkey;3l4(l) — Destruction of Property — Liability of Bailee — Stipulation. • .
    Where a construction company leased from plaintiff a concrete mixer, steam engine, and boiler to be used in the construction of a bridge, agreeing to return the mixer to plaintiff in as good condition as when received, fair.wear and tear excepted, and, while in use, a great and unusual rainfall caused a great and unusual rise in the river being bridged, whereby the machinery was carried away and destroyed without fault on the construction company’s part, the company, being a bailee, and its liability not being enlarged by the stipulation that it would return the property in as good condition as when received, was not liable for the destruction of the machinery.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 45-48, 52-55:]
    Appeal from District Court, Harris County ; Henry J. Dannen-baum, Judge.
    Suit by C. A. Cleaver against the Drake-Brannum Construction Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Wliarton E. Weems, of Houston, for appellant. Lockett & Rowe, of Ft. Worth, for ap-pellee.
   LANE, J.

This suit was instituted by C. A„ Cleaver against Drake-Brannum Construction Company to recover $1,000 alleged to be the value of a certain concrete mixer, steam engine, and boiler, hereinafter referred to as-“machinery,” the property of plaintiff.

The case went to trial before the court without a jury, upon an agreed statement of facts, the material parts of which are as-follows:

The defendant, Drake-Brannum Construction Company, leased from the plaintiff, C.. A. Cleaver, the machinery in question, to be-used by defendant at West Point, Tex., in the construction or repair of a bridge across the Colorado river, under a written contract containing, among other provisions, the following:

“The said mixer is to be delivered by party of' the first part [plaintiff] to the party of the second part [defendant], at Houston, Tex. * * *' Party of the second part agrees to return to' the party of the first part the mixer in as good condition as when received, fair wear and tear excepted, at the location at which the party of the second part received the mixer from the-party of the first part, or to deliver it to any other point at the option of the party of the first part.”

It is further agreed that the machinery was received by the defendant, shipped tO' West Point, and there used by defendant in. preparing material for use in repairing a. bridge spanning the Colorado river, that while being so used there was a great and unusual rainfall • which caused a great and unusual rise in said Colorado river at West Point, and that by reason thereof said machinery was carried away by the flood waters- and destroyed, and that it has never been recovered; that such destruction was without fault upon the part of defendant, and that the-market value of said machinery at the time it' was destroyed was $501.

Upon this agreement the court rendered, judgment for defendant.

'Appellant, Cleaver, insists that upon the-agreed facts the court should have rendered, judgment in his favor for the sum of $501, and that it erred in not so doing. This assignment presents the only question for our decision.

Appellant’s contention is that, as appellee contracted to return and deliver said machinery to appellant in as good condition as-when received, fair wear and tear excepted, without other reservations and exceptions, it is bound to make such delivery by the-terms of such contract, and that appellee is-not relieved from so doing because such machinery was destroyed by agencies over which, it had no control.

On the other hand, appellee contends that,, as the machinery was destroyed by an unusual flood over which it had no control, and without any fault on its part, it is not liable-to appellant for the loss of said machinery and consequent failure to deliver the same-to appellant, as it contracted to do.

We do not think the contention of appellee ¡ can be sustained, but, on the contrary, we ¡ think the contention of appellant is sustained by the great weight if not by all the decisions of the courts of this state and other states passing upon similar contentions to those here presented for our decision.

We find that by the contract of the parties to this suit, upon which appellant’s suit is based, appellee voluntarily obligated itself to ■deliver the machinery in question to appellant in as good condition as when received, fair wear and tear excepted, and that there were no other exceptions or reservations contained in said contract. Such being the ease, the sound maxim, that as a man binds himself so shall he be bound, is applicable, and this court is charged with the duty to so hold. The appellant may or may not have been willing to contract with appellee to hold him harmless in case said machinery was destroyed by an unusual flood or other agencies over which appellee had no control, but we find that in this case he did not do so, and we are not at liberty to make a contract for the parties which they did not make for themselves. It is conceded that, where the law creates a duty or imposes a charge, and the contracting party is disabled to perform his contract without his fault, and has no remedy, then the law will excuse him, and.in such case he will not be held liable in damages for nonperformance, and also that he cannot be held liable for a breach of his voluntary contract when the law intervenes to prevent its performance; but we have no •such case before us.

“If the parties to a voluntary contract make no provision for 'a dispensation, the law gives .none. It does not allow a contract fairly and voluntarily made to ho annulled, and it does not permit to be interpolated what the parties themselves have not stipulated. The promiser may not be compelled to perform tho undertaking, but he cannot, on account of hardship or the impossibility of performance of the undertaking, relieve himself from the liability incurred by -the contract. Accordingly one who voluntarily ■enters into an absolute contract, without qualification or exception,” to return and redeliver machinery delivered to him in as good condition as when received, fair wear and tear excepted, must abide by Ms contract and perform his undertaking, and cannot be heard to say that he was prevented from such performance by reason of an unprecedented flood. Volume 6, R. C. L. §§ 364, 365, 367, and 368, pp. 977-1006; Northern Irr. Co. v. Dodd, 162 S. W. 946; Northern Irr. Co. v. Watkins, 183 S. W. 431; Bartlett v. Bisbey, 27 Tex. Civ. App. 405, 66 S. W. 70; Gunter v. Robinson, 112 S. W. 134; Navigation Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790; School Dist. v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Steele v. Buck, 61 Ill. 343, 14 Am. Rep. 60.

Having concluded that the trial court erred, 'in rendering judgment for appellee upon the agreed facts, and having reached the further conclusion that upon such 'facts judgment •should be in favor of appellant, C. A. Cleaver, against appellee, Drake-Brannum Construction Company, for the sum-of $501, the judgment of the trial court is reversed, and judgment is here rendered' for appellant, C. A. Cleaver, against appellee,' Dfake-Brannuin Construction Company, for $501, and all costs incurred by him. ‘ •

Reversed and rendered.

On Motion for Rehearing.

In our original opinion we held that, as ap-pellee, by its contract voluntarily entered into with appellant, bound itself to ’return the property leased and received by it to appellant in as good condition as when received, “fair wear and tear excepted,” without other or further exceptions or reservations, it is bound to make such return or pay the owner of the property its value, and will not, on account of hardships or impossibility of performance of its contract, by reason of the destruction of the property by a flood over which it had no control, be relieved from liability to appellant for its failure to return the property. So holding, we reversed the judgment rendered in favor of appellee by the trial court and rendered judgment-for appellant.

We made this holding under the impression that the general rule that, if a party to a voluntary contract makes no exemption from liability ’ for failure to fully perform his undertaking, evidenced by the contract, the law will not interpolate what the parties themselves have not stipulated, and thereby relieve them from .liability for. nonperformance, and that the law will not interpose to relieve the parties from liability for nonperformance, by reason of the intervention of some unforeseen occurrence over which they had no control; except when the law compels the.making of the contract, or when the law intervenes to prevent performance, was applicable to this case. The authorities cited in the original opinion sustain the rule above stated, and the case of Direct Navigation Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790, supports the original opinion. . But, since our original opinion has been filed appellee has filed its motion for rehearing, and therein contends that the decision in the case mentioned is in conflict with the weight of authority in this state on the subject under discussion as well as of other states.. -116 also contends that the general rule announced by us in the original opinion is not applicable to the contract and questions involved in this case, and that we erred in • holding that such did apply thereto.

Appellee does not dispute the general proposition of contract law as announced in our original opinion, but it does contend that under the contract in this case appellee was a bailee, and that the' stipulation in the contract that appellee.was to’return the property in as good .condition as when received, “fair wear and tear excepted,” did not enlarge the common-'law liability of appellee, the bailee,' and that, unless the common-law liability under a contract of bailment is enlarged, or the intention to so enlarge it appears by specific language, the liabilty of the bailee is to b'a determined and measured by Ms common-law liability.

After a careful review of the authorities cited in the motion, we feel constrained to sustain such contention. Sanchez v. Blumberg, 176 S. W. 904; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093; Seever v. Gabel, 94 Iowa, 75, 62 N. W. 669, 27 L. R. A. 733, 58 Am. St. Rep. 381; Field v. Brackett, 50 Me. 121; McEvers v. The Sangamon, 22 Mo. 187; Jaminet v. American Storage Co., 109 Mo. App. 257, 84 S. W. 128; Ry. Co. v. Ry. Co., 26 Minn. 243, 2 N. W. 700, 37 Am. Rep. 404; Ames v. Belden, 17 Barb. (N. Y.) 517; Hyland v. Paul, 33 Barb. (N. Y.) 241; Young v. Leary, 135 N. Y. 569, 32 N. E. 607; Whitehead v. Vanderbilt, 10 Daly (N. Y.) 214; American Preserves Co. v. Dreschner, 4 Misc. Rep. 482, 24 N. Y. Supp. 361.

It follows from what has been said that we have reached the conclusion that we erred in our original opinion in reversing the judgment of the trial court and rendering judgment for appellant. We therefore sustain the motion and set aside so much of the original opinion as reverses the judgment of the trial court and renders judgment for appellant, and we now affirm the'judgment of the trial court.
      «ScoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    ROSSETTI v. BENAVIDES.
    (No. 5844.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 25, 1917.
    Rehearing Denied May 23, 1917.)
    .1. Wills- <§=>63 — Construction — Estates .Created.
    A mutual will of a husband and wife, giving the_ survivor a life estate, and upon his or her death devising the homestead in fee to an adopted child and a son of a deceased adopted child, when, adopted and ratified by the widow, who survived, vested an undivided half interest in the homestead in each of the named remainder-men.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 171.1
    2. Appeal and Error <§=3911(1) — Scope op Review — Presumptions.
    When the record is silent as'to the appointment of a special district judge by consent of the parties to a case, which the regular judge is disqualified to try, the appellate court must presume, in the absence of exceptions in limine, that the parties exercised their constitutional right to empower the special judge, by consent, to try the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3682-3684.]
    3. Descent, and Distribution <§=>90(4) — Establishing Title — Evidence—Admissibility.
    Where one remainderman and a life tenant gave a deed of trust to extinguish a debt of the remainderman, evidence of ■ the consideration given, to such person was inadmissible as irrelevant in a suit by heirs of the other remain-dermen to establish their title.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 356,' 357, 372, 373, 379, 380.]
    4. Appeal and Error <@=>1067(1) —Harmless Error.
    Error, if any, in excluding a clause of an amended answer in suit for title, possession, and rents of real estate under a will, pleading that plaintiffs claimed under testator’s adopted child, when. as matter of law such a child could not inherit, was harmless, where the evidence showed that they claimed under a child of such adopted child, who received a specific devise in the will.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4194-4196.]
    5. Appeal and Error <§=>994(3) — Trial <§=> 140(1) — Scope oe Review.
    • The trial court is the judge of the credibility of witnesses and weight of their testimony, and its conclusion binds the court on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3904r-3905y2 ; Trial, Cent. Dig. § 334.]
    6. Estoppel <§=>118 — Evidence — Suffi- ■ cikncy.
    Evidence held insufficient to destroy the title of an heir by estoppel.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 306, 308.]
    7. Mortgages;<§=>3.16 — 1Trust Deeds — Revival of Lien.
    Where a trust deed was canceled for consideration, it could not after a number of years be revived so as to affect the right of another claimant "as to whom it was void from the beginning.
    [Éd.- Note. — For other cases, see Mortgages, Cent. Dig. .§§ 949-954.]
    8. Appeal and Error <§=>714(5) — Scope of Review — Record—Sufficiency.
    Where the attorneys and the judge could not agree upon a correct statement of the evidence, evidence "not brought to the court on appeal except by statement in the appellant's brief could not be considered.
    9. Appeal and Error <§=>501(5)> — Scope of Review — Breservation- of Exceptions,
    Where it does not appear from the record that appellees excepted to the judgment and caused the exception to be noted on the record of the judgment, entry, as required by Rev. St. 1911, art. 1991, and they filed no cross-assignment in the trial court, an assignment on appeal cannot be considered.
    [Ed. Note. — For other cases, see. Appeal and Error, Cent. Dig. § 2305.]
    Appeal from District Court, Webb County; Ed. H. Wicks, Special Judge.
    Suit by Mrs. Aurelia Benavides, for herself and as next friend for her minor son, Lazaro Garza Ayala Benavides, against John T. Rossetti and another. Judgment for plaintiffs in part, and for defendant named in part, and defendant named appeals.
    Affirmed.
    H. G. Dickinson and W.' Threadgill, both of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.
   SWEARINGEN, J.

This is a suit by ap-pellee, Mrs. Aurelia Benavides, for herself and as next friend for her minor son, Lazaro Garza Ayala Benavides, against appellant, John -T. Rossetti, and Juan Benavides, to recover title and possession and rents for the use of an undivided one-half of lot 5, in block 41, in the Western division of the city of Laredo,' Tex., and an undivided one-fourth of 498 acres of land out of porcion No. 5 in Webb county, Tex. The cause was tried before a special judge; appointed by the Governor after it was certified that the regular district judge was disqualified to try this cause. The cause was tried without a jury. Judgment was rendered in favor of appellee for an undivided one-half of the lot No. 5 in the city of Laredo and the rents therefrom of $686.42, after deducting amount paid by appellant for taxes on this undivided half of the lot, and judgment was rendered in favor of appellant for the undivided one-fourth interest in the 498 acres of land out of porcion No. 5; and judgment was rendered, upon exception of appellant, dismissing Juan Benavides from the suit.

B'rom the pleadings it appears: That the community estate of Santos and Augustina Benavides was the common source. That the city lot No. 5 was the homestead of the above-named husband and wife. That a mutual will was executed jointly by Santos and his wife, Augustina, dated January 12, 1887, by the terms of which the survivor was to retain a life estate in the homestead; and upon the death of the survivor the homestead was to vest in fee in Juan Benavides, one of the adopted children, and Francisco Garza Ayala Benavides, a son of the other adopted child, Augustina, who died before this mutual will was executed, which fact was stated in the will which expressly names Francisco and Juan Benavides and their heirs as the devisees under the will after the decease of both makers of the mutual will. The husband, Santos Benavides, died first, and, .upon petition of his widow, the mutual will was duly probated, and, as directed therein, the widow, Augustina, qualified as independent executrix of the mutual will, without bond. Lot No. 5 was inventoried as assets of the community estate of the makers of the mutual will. The executrix never repudiated the contract merged into the terms of the will, but adopted and ratified same after the death of her husband, Santos, one of the joint makers of the mutual will. It further appears from the pleading that Francisco Ben-avides married Aurelia Benavides, and that Lazaro Garza Ayala Benavides was the son of this marriage, and that upon the death of Francisco in 1913 all his interest in the estate vested by the mutual will passed by descent to the widow, Aurelia, and minor son, Lazaro. The interest inherited by Aurelia and her son from Francisco was an undivided one-half interest in the town lot No. 5. This was the interest devised to Francisco by the mutual will. The other undivided one-half interest was devised by the mutual will to Juan Benavides, one of the adopted children. This mutual will of Santos and Augustina was never probated as the will of Augustina after her death in 1904. The title to town lot No. 5 vested in Juan and Francisco upon the probate of the mutual will, subject to a life estate in the surviving spouse, Augustina. Upon her death, in 1904, this life’ estate became extinguished. It further appears from the pleadings that appellant became a creditor of Juan, one of the adopted children, after the death of Santos and before the death of Augustina, makers of the mutual will. After the indebtedness was made, Juan and his foster mother, Augustina, executed notes for the previously existing indebtedness of Juan to appellant and to secure same executed deeds of trust creating a lien upon said lot No. 5 in favor of appellant. Subsequently, after the death of the foster mother Au-gustina, Juan, joined by his wife, executed a warranty deed to said lot No. 5 to appellant, in consideration of the cancellation of the notes and reiease of the deeds of trust above mentioned.

It is pleaded that by virtue of the deeds of trust or the deed that appellant has a lien or title to all of said lot No. 5. It is further pleaded that lot No. 5 was given by parol to Juan when a boy by Santos and wife, Au-gustina; that appellant and grantor had adverse possession for five years claiming under a deed duly registered; that he had adverse possession for ten years; that after the said deeds of trust were executed and' the indebtedness matured, but before the, warranty deed was executed by Juan to appellant, Juan told Francisco of the indebtedness and deed of trust lien securing same .and requested Francisco to pay the debt and acquire the entire title to the said lot, which was refused by Francisco. Thereafter, Juan deeded the entire interest, his own and Fran-, cisco’s, in payment of Juan’s debt to appellant. It is claimed by appellant that the last-, mentioned facts estopped Francisco, and of; necessity his heirs, the appellees herein, from, claiming Francisco’s undivided one-half in-, terest in said lot No. 5.

It appears that there was no administra-, tion of the estate of Francisco Benavides,, and none necessary.

The evidence sustains all of the allegations, of appellee and fails to sustain the defense, allegations of appellant of a parol gift to., Juan Benavides, five or ten years’ limita-. tion, or estoppel.

Our. conclusion of law is that the mutu-. al will, in view of the facts of adoption and. ratification by the surviving widow, vested, an undivided one-half interest in the Laredo, lot No. 5 in Francisco, which was inherited by appellees, heirs of Francisco, and the other undivided one-half interest in Juan Benavides, vendor of appellant. Larrabee v. Porter, 166 S. W. 395.

Appellant’s first assignment, embracing: the first paragraph of their motion for new-trial, assails the authority of the special district judge to act because the parties never-agreed that he should act as such special judge, and because the Governor, on December 21, 1914, had no power to appoint a special judge.

As this assignment presents a question,. -of fundamental error, we have examined the entire record for facts bearing upon it. The record shows that the regular district judge was disqualified to try this case and that fact was certified to the Governor as required by law. There is no evidence to show why the regular judge was disqualified, whether by reason of kinship to the parties, interest, •or having been of counsel for the parties, and no ' evidence that he was not disqualified. Hence this court must conclude that the regular judge was disqualified. Where the regular judge is disqualified, the Constitution, .by article 5, § 11, expressly authorizes the parties to a case, by consent, to appoint a proper person to try said case. The record contains no evidence that the parties to this case did not consent to appoint the special district judge in this case. Had it appeared that the parties failed to appoint the special district judge by consent, then we would have been compelled to have held that the special judge acted solely by virtue of his appointment from the Governor and to have held it void. Oates v. State, 56 Tex. Cr. Rep. 571, 121 S. W. 370. But when the record is silent as to the appointment of a special district judge by consent of the parties to a case, which the regular judge is disqualified to try, this appellate court must presume, in the absence of exceptions in limine, that the parties exercised their constitutional right to empower the special judge, by consent, to try the case. Davis v. Bingham, 46 S. W. 840; Texas Central Ry. Co. v. Rowland, 3 Tex. Civ. App. 165, 22 S. W. 134; Schultze v. McLeary, 73 Tex. 94, 11 S. W. 924; Shultz v. Lempert, 55 Tex. 273; Dunn v. Home Nat. Bank, 181 S. W. 700.

The first assignment is overruled.

The second assignment complains of.that ruling of the trial court which excluded from evidence two promissory notes and two deeds of trust on the property involved in his suit securing the payment of the notes. The notes and deeds of trust were executed by Augustina Y. de Benavides, the surviving maker of the mutual will, and her adopted son, Juan Benavides, for the benefit of John T. Rossetti, appellant. All four of these instruments were canceled by appellant upon receipt by appellant of a warranty deed executed after the death of the foster mother by the adopted son, Juan Benavides, joined by his wife, and describing the property herein involved.

Why the ruling was error was, according to appellant, that the cancellation of the instruments show a valuable consideration for the execution of the deed. The ruling was not reversible error, if error. Consideration received by Juan Benavides or his foster mother is not an issue in this case. It is wholly immaterial what they received from appellant.

The question involved in the suit is: What did appellant receive through the deed from Juan Benavides, joined by his wife. Appellant certainly did not receive by that deed title to appellee’s property or interest.in the property, which is all that appellees sue for. The evidence of consideration for the deed is irrelevant and tends to confuse. The assignment is overruled.

Upon exception by áppcllees to a clause of appellant’s second amended answer, the court excluded the clause complained of in the third assignment. The clause excluded was a legal conclusion based upon a misconstruction of the cause of action pleaded and subsequently proven, we think, and reads as follows:

“That said Francisco Garza Ayala Benavides, neither at the time of his death nor at any time, was ever entitled to any part or portion of the interest of said Augustina V. de Benavides in the premises described in plaintiff’s first amended petition, because his mother, Augustina Bena-vides Ayala, was only an adopted child of said Augustina V. de Benavides and she died long' before the death of said Augustina Y. de Bena-vides and she did not and could not inherit from, her under the laws of this state, particularly under article 2466 of the Revised Statutes, and the plaintiff and her minor son, Lazaro Garza Ayala Benavides, claiming under said Francisco Garza Ayala Benavides, through his said mother, has no title to or interest in the part or portion of said premises owned by Au-gustina V. de Benavides at the time of her death.”

Appellees pleaded that Francisco Garza Ayala Benavides at the time of his death was the owner in fee-simple title and entitled to the possession of the property sued for. It was not claimed that Francisco acquired this by inheritance from his mother, the adopted daughter who died before the makers of the mutual will. It may be that appellant had the legal right to allege a source of title in appellees different from that alleged by appellant, and the court might very properly have overruled the exception; but, in view of the evidence subsequently introduced, such error, if any, was harmless, because it appears without dispute that ap-pellees did not derive title from Augustina, the adopted daughter, but from Francisco, who was one of the named beneficiaries in the mutual will. That the mutual will effectively passed the title to Francisco as sued for, and that the appellees are the only heirs at law of Francisco.

The third assignment is overruled.

The contention that the evidence shows that Santos and Augustina, the makers of the mutual will, made a parol gift of the property recovered in this suit by appellees, to Juan Benavides, which is presented in the fourth assignment, cannot prevail here, because it was a question of fact over which the trial court had controlling jurisdiction. That court was the judge of the credibility of the witnesses and their testimony, and his conclusion of the weight of the testimony binds us in this case. The surviving maker of the mutual will inventoried the lot involved as the community property belonging to her husband, ¡Santos, and herself long after the date of the claimed gift. She continued to use it as her homestead long after that date. Against this was the testimony of Juan Benavides that when he was a child it had beer, given to him before the execution of the mutual will. This title by gift in Juan Benavides is claimed to have been purchased by appellant. Whether or not title was acquired by Juan Benavides by ten years’ limitation was also determined as a question of fact by the trial court with sufficient evidence to support the court’s finding.

The fourth assignment is overruled.

By the fifth assignment, error is hypothe-cated upon the theory that the undisputed evidence conclusively established that appel-lees were estopped from asserting title to Francisco’s interest in the property. The facts relied upon to establish estoppel are that, after Francisco acquired title to the interest in the property sued for, and without his knowledge, the vendor of appellant borrowed money from appellant and attempted to create a lien on Francisco’s interest by executing a deed of trust to the property; that subsequently, not being able to pay the debt and cancel the attempted lien, Juan Benavides, one of the adopted children, requested Francisco to pay the debt, which was refused. Thereafter, Juan deeded the entire title to the property to the creditor, appellant, in satisfaction of the debt. There were other statements by the witness Juan Benavides of a similar indefinite character.

The court correctly held that the evidence was insufficient to destroy appellee’s title to the property as shown by the recorded title papers by virtue of estoppel. It is apparent from the evidence that Juan and his vendee proceeded upon the legal conclusion that Juan, the adopted child, owned and conveyed the legal title to the lot, and that Francisco had no interest.

By the sixth assignment, it is claimed that the undisputed evidence shows that appellant acquired title to the property by ten years’ adverse possession held by appellant and his vendor. This, again, is a question of fact determined against appellant by the trial court, with ample evidence to sustain its judgment.

From the seventh assignment it appears that appellant feels aggrieved because the trial court failed to foreclose appellant’s asserted lien, revived in the alternative, for the special purpose of this trial, and order the property sold and proceeds equitably divided. Inasmuch as the lien had been expressly canceled years before the suit for valuable consideration and appellant received the consideration, we cannot believe the lien could be revived so as to affect any interest or right of Juan Benavides, and, as the lien was from its incipiency void as to any interest of ap-pellees, we think the court correctly refused to enforce, the canceled lien.

By the eighth assignment, we are called upon to determine that it is fundamental error apparent upon the face of the record for the trial court to have made up and certified an incorrect statement of facts after the attorneys had notified him of their failure to agree upon a statement of the facts in evidence. From the very nature of the question presented, it is clear that this court cannot make a correct statement of evidence introduced in the trial court, but not brought to this court in any way except by statement in appellant’s brief that certain other evidence was introduced. The proof relied upon by appellant to show that other facts were proven is that other evidence was pleaded by both sides. This is hardly worthy of serious consideration. The eighth assignment is overruled.

By cross-assignment appellees contend: That the court erred in its decree in so far as it awarded to appellant one-fourth of 498 acres of land out of porcion'No. 5 in Webb county, Tex.

This cross-assignment cannot be considered by us, because it does not appear from the record that appellees excepted to the judgment and caused the exception to be noted on the record of the judgment entry as required by article 1991 of the Revised Civil Statutes, and because this cross-assignment does not appear from the record to have been filed in the trial court. While it is copied in the briefs of appellees which were filed in this appellate court, none of the briefs filed here in this cause contains a certificate required by law that these briefs are copies of the brief filed in the trial court. Ike Levy v. Engle Bros., 192 S. W. 548; Gibbs v. Eastham, 143 S. W. 323.

The judgment is affirmed.
      <S=>For ocher cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEXAS BREWING CO. et al. v. STATE.
    (No. 1776.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 22, 1917.)
    1. Clerks of Courts <&wkey;17—Fees — Filing Paper.
    Vernon’s Sayles’ Ann. Civ. St. 1914,- art. 3855, giving clerks of court a certain foe for “filing each paper,” refers only to papers forming part of the record proper, and is therefore inapplicable to letters introduced in evidence.
    [Ed. Note.'—For other cases, see Clerks of Courts, Cent. Dig. § 43.]
    2. Clerks oe Courts <&wkey;ll—Fees—Assess-ing Damages.
    A clerk of court is not entitled to a fee for “assessing damages,” where the judgments were entered upon agreement and therefore did not involve the assessment of damages.
    [Ed. Note.—For other cases, see Clerks of Courts, Cent. Dig. §§ 33, 38, 40, 41, 50, 52, 57, 60, 63.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.

      Suit by the Sta.te of Texas against the Texas Brewing Company and others. From a judgment overruling defendants’ motion to retax the costs, they appeal.
    Reversed and remanded, with directions.
    The state, by the Attorney General, commenced suits against the 'San Antonio Brewing Association, the Bone Star Brewing Company, the Houston Ice & Brewing Company, the American Brewing Association, the Galveston Brewing Company, and the Texas Brewing Company, respectively. The suits against' the five companies mentioned were consolidated, and on January 24, 1916, in accordance with an agreement of the parties entered into 'December 16, 1915, judgment was entered in favor of the state against said five companies, among other things, for the costs incurred in the consolidated cause. On the same day, to wit, January 24, 1916, in accordance with an agreement of that date between, the state and the Texas Brewing Company, judgment was rendered in favor of the former against the latter, among other things, for all costs of the suit against it. In the agreement for judgment in the consolidated cause was a stipulation that when it was called for trial either of the parties might offer any material and relevant evidence desired by it: In the other agreement was a like stipulation, and also one providing that any evidence introduced on the consolidated cause should be considered as applicable and material and relevant in the suit of the state against the Texas Brewing Company. Among other documents offered as evidence under the terms of the agreements were 5,000 letters. The letters, having been admitted as evidence, were bound in 13 volumes and delivered to the clerk to be kept by him as a part of the record of the cause. The clerk thereupon indorsed his file mark upon each of the letters, and in his cost bill taxed a fee of 15 cents for filing it; such fees for filing the 5,000 letters aggregating the sum of $750. He also taxed in the bill a fee of 50 cents for “assessing damages” in the consolidated cause. The brewing companies claimed the clerk was not entitled to the fee of 50 cents taxed for “assessing damages,” and was not entitled to a fee for filing each of the letters, but only to a fee for filing each of the bound volumes, aggregating the sum of $1.95, and filed a motion to retax the costs in accordance with their contention. This appeal is from a judgment overruling their motion.
    Baker, Botts, Parker & Garwood and Fisher, Campbell ■& Amerman, all of Houston, Dinsmore, McMahan. & Dinsmore, of Green-ville, Jas. B. Stubbs, of Galveston, Newton & Newton, of San Antonio, Bryan, Stone & Wade, of Ft. Worth, Connor & James and J. A. Dial, all of Sulphur Springs, and Wm. Aubrey, of San Antonio, for appellants. B. F. Looney, Atty. Gen., and C. E. Sheppard, D. Thornton, and H. E. Pharr, all of Sulphur Springs, for the State.
   WILLSON, C. J.

(after stating the facts- as above). We are of the opinion that papers which do not form a part of the record proper of a case, and which the clerk is not directed by a statute to file, are not within the meaning of article 3855, Vernon’s Statutes, providing a fee to the clerk of 15 cents for “filing each paper” in a civil case. The letters in question, when admitted as evidence, did not become a part of the record proper of the cases (Noyes v. Parker, 64 Vt. 379, 24 Atl. 12; State v. Shappy, 79 Vt. 306, 65 Atl. 78; Bell v. Eddy, 2 Ind. T. 312, 51 S. W. 959; Smith v. Moseley, 234 Mo. 286, 137 S. W. 971), and we have been referred to and have found no statute requiring the clerk to file them. The letters might, when they had served the purpose for which they were admitted, have been withdrawn from the custody of the clerk by the owners thereof. If they thereafterwards remained in his custody, it was because he and the owners were willing that they should, and he then held them for the owners, and not in the discharge of a duty which the law imposed upon him. Therefore we think the court erred when’ he refused to strike’from the. bill of costs the item of $750 taxed therein for filing the letters.

In view of the fact that the judgments were based upon agreements of the parties therefor, and therefore that entering same did not involve the assessment of damages, we are further of the opinion that the clerk was not entitled to tax as costs due him the fee of 50 cents for “assessing damages.”

The judgment will be reversed, and the cause will be remanded, with instructions to the court below to retax the costs in accordance with the. ruling we have made.
      ©=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes