text:
    Ex parte PARR.
    (No. 4851.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Municipal Corporations <&wkey;114 — Ordinances — Amendment or Revival.
    Const. art. 3, § 36, providing that no law shall be revived or amended by reference to its title, but that in such case the act revived or the section, or sections, amended shall be reenacted and published at length, does not apply to the enactment of municipal ordinances.
    2. Licenses <&wkey;7(l) — Validity op Ordinances — Nature op License.
    Under Acts 33d Leg. c. 147 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a tol096i), providing that cities adopting or amending their charters under that act shall have the powers therein enumerated, including the power to regulate, inspect, and license all occupations and charge license and inspection fees therefor, a city ordinance, requiring persons operating automobiles for hire to obtain a license and pay a license fee, was not invalid as imposing an unauthorized occupation tax, but was a valid exercise of the police power.
    3. Municipal Corporations &wkey;>592(l) — Licenses— Conplict with State Law.
    A municipal ordinance, requiring persons operating automobiles for hire to obtain a license and pay a license fee, was not in conflict with Acts 35th Leg. c. 190, creating the state highway department and assuming control of the operation of motor vehicles, in view of section 25, providing that its provisions shall not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation, and section 23 of chapter 207 of the Thirty-Fifth Legislature reserving similar authority to cities.
    4. Licenses &wkey;>7(3) — Validity op Ordinances — Uniformity.
    It was not an improper classification to provide in one ordinance for the licensing of jitneys operating over particular routes, and in another ordinance for the licensing of service cars confined to no particular route.
    5. Licenses <&wkey;26 — Conditions Imposed — Indemnity Bonds.
    A requirement of an ordinance, licensing the operation of automobiles for hire that applicants for a license should furnish a bond or indemnity insurance in the sum of $10,000 against injuries to persons or property through the negligent operation of such automobiles, was not unreasonable on its face.
    6. Municipal Corporations &wkey;U21 — Ordinances — Right to Attack Validity.
    One charged with operating an automobile for hire without a license in violation of an ordinance was in no position to raise the question as to the validity of the ordinance by reason of the authority therein given to revoke the license.
    7. Licenses &wkey;>7(l) — Validity op Ordinances — Revocation op License.
    An ordinance requiring a license to operate automobiles for hire was not rendered invalid by a provision therein giving authority to revoke the license.

      8. Municipal Corporations <@=>63(2) — Ordinances — Judicial Supervision.
    A city Raving authority to pass reasonable regulations governing automobiles operated on its streets for hire, the court would not be authorized to declare its provisions unreasonable', unless it clearly appeared that they were so.
    Original application by A. S. Parr for a writ of habeas corpus.
    Application dismissed.
    Chambers & Watson, of San Antonio, for appellant. R. J. McMillan, City Atty., of San Antonio, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The city of San Antonio is incorporated under a special act of the Legislature, subsequently amended under the provisions of the act of the Thirty-Third Legislature, p. 307, known as the Enabling Act touching the so-called (Home Rule Amendment to the Constitution, which act is chapter 17, tit. 22, Vernon-Sayles’ Civil Statutes. The charter contains numerous provisions giving broad powers touching police regulations, and in section 99 specific authority is given to “regulate, inspect and license all occupations when necessary or proper for the good order, public health, public safety ór general regulation of the city, and charge license and inspection fees therefor, and such fees shall not be construed as occupation taxes.”

The act of the Thirty-Third Legislature, supra, under which the charter was amended, also contains provisions defining the power of cities acting thereunder, among which provisions is the following:

“To license, operate and control the operation of all character of vehicles using the public streets, including motorcycles, automobiles or like vehicles.” “To regulate, license and fix the charges of fares made by any person owning, operating or controlling any vehicle of any character used for the” purpose of carrying “passengers for hire.”

On the 27th of August, 1917, the City of San Antonio passed an ordinance requiring all persons desiring license to operate automobiles for hire to make written application therefor, pay a license fee, and furnish bond or indemnity insurance in the total sum of $10,000 against injuries to persons or property through the negligent operation of such automobiles by the licensee or his employé. Relator is held under a complaint charging a violation of the provisions of this ordinance, and there is filed’ in the case a written admission by the relator stating, in substance, that he was engaged in operating an automobile for hire upon the public streets of San Antonio without complying with the requirements of the ordinance, and further stipulating that unless the ordinance is void his restraint was legal. He seeks his discharge upon original application for writ of habeas corpus to this court, making various contentions as to the invalidity of the ordinance, which specifications are too numerous to discuss in detail, but which, in the main, assert that the ordinance is an unauthorized and unreasonable police regulation. Aside from the want of authority to pass the ordinance, he complains that the title and preamble of the ordinance are not in accord with article 3, § 36, of the Constitution, and that it is viola-tive of that article in its reference to another ordinance. This contention is based on the incorrect assumption that the article of the Constitution mentioned controls the enactment of ordinances. Morris v. State, 62 Tex. 728; Dillon on Municipal Corporations, §§ 72, 577; Craddock v. City of San Antonio, 198 S. W. 634.

Particular objection is made.to the provision of the ordinance requiring a license fee, upon the ground that it is an occupation tax, and further that it is in conflict with chapter 190 of the Acts of the Thirty-Fifth Legislature, p. 425, creating the State Highway Department, and assuming control of the operation of motor vehicles. Touching the point that the license fee is an unauthorized occupation tax, we refer to the decision of the Supreme Court of Texas in the case of Brown v. City of Galveston, 97 Tex. 17, 75 S. W. 488, wherein the question involved is determined contrary to the view of relator. And with reference to the conflict with the state law, it appears that section 25 of the act mentioned contains the following:

“But this provision shall not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation.”

Similar authority is reserved in the city in another act of the same Legislature. Chapter 207, p. 481, § 23. When granted to the city government by the lawmaking power of the state, the license and reasonable regulation of vehicles upon the streets is a valid exercise of the police power. 28 Cyc. 731; Dillon on Mun. Corp. § 1166; Lawson v. Connolly, 175 Mich. 375, 141 N. W. 623, 45 L. R. A. (N. S.) 1152.

Numerous instances of the exercise of this power upon various kinds of vehicles are to be found in the reports. As to its operation upon stages, see 28 Cyc. 765; omnibuses, 28 Cyc. 731, 930; vehicles carrying advertisements, Fifth Ave. Coach Co. v. New York, 221 U. S. 467, 31 Sup. Ct. 709, 55 L. Ed. 815; hacks, Kissinger v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005; Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513, 43 L. R. A. 863, 76 Am. St. Rep. 708; market wagons, Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668; carriages, Veneman v. Jones, 118 Ind. 41, 20 N. E. 644, 10 Am. St. Rep. 100; Combs v. Lakewood, 68 N. J. Law, 582, 53 Atl. 697; Ex parte Vance, 42 Tex. Cr. R. 619, 62 S. W. 568; wagons, State v. Boardman, 93 Me. 78, 44 Atl. 118, 46 L. R. A. 750; automobiles, Commonwealth v. Boyd, 188 Mass. 79, 74 N. E. 255, 108 Am. St. Rep. 464. The validity of ordinances requiring license of vehicles has often been upheld. Tomlinson v. Indianapolis, 144 Ind. 142, 43 N. E. 9, 36 L. R. A. 413; Gartside v. East St. Louis, 43 Ill. 47; St. Louis v. Green, 70 Mo. 562; Commonwealth, v. Stodder, 2 Cush. (Mass.) 562, 48 Am. Dec. 679, in connection with which see notes under American Decisions, vol. 7, p. 454, and cases cited; Ex parte Counts, 39 Nev. 61, 153 Pac. 93; Memphis v. State, 133 Tenn. 83, 179 S. W. 031, L. R. A. 1916B, and note citing cases, p. 1157, Ann. Cas. 1917C, 1056.

It appears that the ordinances of San Antonio have regulations similar to those contained in the ordinance in question with reference to all automobiles operated for hire, jitneys operating confined to particular routes in one ordinance, and service ears confined to no particular route in another. There -is nothing pointed out which indicates an improper classification. Ruling Case Law vol. 6, p. 397, and notes under sections 393 and 395. The requirement that persons operating motor vehicles upon the street for hire furnish security to indemnify persons suffering injury by reason of the misuse of the license to use the streets through his negligent conduct of his business has been approved in a number of instances. Ex parte Cardinal, 170 Cal. 519, 150 Pac. 348, L. R. A. 1915F, p. 850, and cases cited in note; Memphis v. State, 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916B, 1158, Ann. Cas. 1917C, 1056, and cases cited in opinion and note; Willis v. Smith, 121 Ark. 606, 182 S. W. 275; La Blanc v. New Orleans, 138 La. 243, 70 South. 212; Dickey v. Davis, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915E, 841; wherein the following authorities are quoted:

“A distinction must be made between the general use, which all the public are permitted to make of the streets for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, sucb_ as haekmen. drivers of express wagons, omnibuses, etc. Tiede-man. Mun. Corp. § 299.
“The rule must be considered settled that no person can acquire a right to make a special or exceptional use of a public highway, not common to all the citizens of the state, except by grant from the sovereign power. Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; McQuillin, Mun. Corp. 1620. * * *
“ ‘The Fourteenth Amendment of the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control, * * * and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the Constitution and laws of the state.’ Davis v. Massachusetts, 167 U. S. 43, 47, 42 L. Ed. 71, 17 Sup. Ct. 731, 733.”

The suggestion that the ordinance is void by reason of the authority therein given to revoke the license might be met with the view that relator, not complaining of the revocation of the license, is not in position to raise the question. Kissinger v. Hay, 113 S. W. 1008. Granting that we are called upon to pass upon the point, we think it is not well taken. Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018; Davis v. Massachusetts, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 31; Wilson v. Eureka, 173 U. S. 317, 19 Sup. Ct. 317, 43 L. Ed. 605.

The city of San Antonio having authority to pass reasonable regulations governing automobiles operated upon its streets for hire, we would not be authorized to declare its provisions unreasonable unless it clearly appeared that they were so. Ex parte Vance, 42 Tex. Cr. R. 623, 62 S. W. 568; Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513, 43 L. R. A. 863, 76 Am. St. Rep. 708; Ruling Case Law, vol. 6, p. 244, and cases cited in notes. We discern nothing in the indemnity obligation required which would condemn the ordinance as unreasonable. It creates no liability against the operators of automobiles for hire, but simply provides a limited security for the satisfaction of liabilities that may be incurred by the negligence of the licensee or those operating the automobile for him. The tendency of such a provision manifestly is to protect the citizens of the city using the streets in the ordinary way by stimulating caution on the part of those operating the vehicle. The eases cited above are mainly from other states. They are not different in principle, however, from those in our own state construing ordinances regulating jitneys, among which are Greene v. City of San Antonio, 178 S. W. 7; Peters v. City of San Antonio, 195 S. W. 989; Auto Transit Co. v. Ft. Worth, 182 S. W. 685; Ex parte Bogle, 179 S. W. 1193; Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537. In these cases the ordinances have been upheld. The dissenting opinion in Ex parte Sullivan is apparently based upon evidence showing a state of facts somewhat different from that involved in the present record. In the instant case there are no facts shown indicating that there is an unfair classification. All motor vehicles operated for hire are, as above stated, under similar regulations in the city of San Antonio. Nor is it apparent from the record that the license fee is unduly onerous, nor that the requirement of indemnity is so difficult to comply with as to be unreasonable, nor that the terms of the indemnity are not reasonable. The presumption that they are reasonable is not rebutted upon the face of the ordinance, nor by evidence attacking it. In fact, there is only pleading, but no evidence. Ex parte Clark, 198 S. W. 955, and cases cited. The agreement filed sets out no fact, except that the relator is operating his service car for hire in defiance of the ordinance on the theory that it is void on its face. It was held valid in Craddock v. City of San Antonio, 198 S. W. 634, in a lucid opinion written by Chief Justice Fly. The inaccuracy of his conclusion is not apparent.

The application for writ of habeas corpus is dismissed.
      cg^jPor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORBO W, J.

license: Public Domain

text:
    WALLACE v. STATE.
    (No. 4832.)
    (Court of Criminal Appeals of Texas.
    Jan. 23. 1918.)
    1. Homicide <@=305 — Instruction — Submission of Law of Principals.
    In a prosecution for murder, deceased having been engaged in a difficulty with defendant’s father and brother, the evidence, not suggesting the idea of conspiracy, and not suggesting that defendant aided or acted with his father and brother under circumstances which would render him responsible for their acts or that of either of them in stabbing deceased, did not authorize submission of the law of principals.
    2. Homicide <©=330(11 — Guilt as Principal-Killing Independent op Dependant.
    Defendant was not responsible for the death of decedent, stabbed either by defendant’s father or by his brother, acting independently of defendant, there being no conspiracy between defendant and his father or brother, and he not having known their intention and aided them.
    3. Criminal Law <@=419, 420(6) — Evidence-Hearsay.
    In a prosecution for murder, conversations between deceased and his father or mother, after he went home after he had been stabbed, as to who had done the stabbing, were inadmissible as hearsay.
    4. Criminal Law <§=366(6) — Evidence—Res ’Gestas.
    Conversations to which deceased was a party, which took place after he had reached his home, he having dropped into a saloon on his way there from the scene of the affray, and having stopped at his father’s store and told him about the difficulty, were not res geste, being merely .relations of facts after the condition of mind had passed which is the basis for the admission of statements under the rule of res geste.
    5. Homicide <@=203(1) — Evidence — Dying Declarations.
    Deceased’s dying declarations are inadmissible in the absence of predicate laid by proof, of decedent’s consciousness of impending death.
    6. Criminal Law <@=338(4,5) — Evidence-Business Transactions.
    Testimony of a merchant, father of deceased, as to the details of his business transactions with defendant’s father, are inadmissible, though the difficulty between defendant’s father, brother, defendant, and deceased, in. which the stabbing occurred, began over a dispute as to defendant’s father’s indebtedness to decedent’s father.
    7. Criminal Law <@=338(4,5) — Evidence-Indebtedness.
    The fact that defendant’s bill at decedent’s father’s store was unsatisfied at the time of trial is inadmissible.
    S. Criminal Law <@=33S(4,5) — Evidence'.
    The fact that decedent’s lodge dues were paid by a member of his family after he was injured is inadmissible.
    9. Homicide <@=174(1) — Evidence.
    The facts that deceased’s father met defend-ent on the street some time after the difficulty, and that defendant drew a knife, and looked daggers at him, and appeared angry, are inadmissible.
    10. Witnesses <@=361(2) — Impeachmeni^-In-dictment — Proof op Innocence.
    A witness, having been discredited by proof of indictment for perjury, should have been allowed to explain he was not guilty of the charge.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Wm. K. Wallace was convicted of manslaughter, and he appeals.
    Judgment reversed, and cause remanded.
    W. E. Engel and Will A. Morriss, both of San Antonio, for appellant. E. B. Hendricks; Asst. Atty. Gen., for the State.
   MORBO W, J.

Appellant, under indictment for murder of John Massey, was convicted of manslaughter. His "father, J. H. Wallace, and his brother, T. D. Wallace, were charged with the same offense under separate indictments. The father, J. H. Wallace, a man about 65 or 70 years of age, was indebted to the father of deceased who was a merchant. The account was some $7 or $8. J. H. Wallace and a witness by the name of McGinnis were on the street in front of a saloon owned by a witness by the name of Booth, and were engaged in a conversation about their own business affairs. Deceased approached J. H. Wallace while thus engaged in regard to the collection of the account mentioned, and a difficulty ensued between them, in which the deceased struck J. H. Wallace several times, bruising bis face, and knocking him down. Soon after the fight began appellant and his brother, T. D. Wallace, who at the time were in the saloon with a friend drinking a glass of beer, rushed out on the street where the difficulty was taking place. About the same time other people who were in the saloon also came out.

The eyewitnesses who were introduced by the state described the occurrence, and from their testimony we gather that after the old man had been knocked down he got up and approached the deceased, who walked backward towards the other side of the street. The evidence is conflicting as to which of the sons got out of the saloon first, though it indicates that the brother of the appellant reached the deceased first, and on his taking hold of deceased was struck by him.

The saloon keeper, Booth, said that he saw one of the Wallaces strike the deceased in the stomach; that he could not say which one did it; that he thought it was one of the boys, and the blow was in the nature of a thrust with the right hand just below the navel; that be could not swear that appellant took any part in the difficulty; that he recollected that the old gentleman was out in the street, and both of the boys were out there — one went, then the -other, but he was unable to say which went first. The several other witnesses for the state related the matter in substantially the same way as the witness Booth.

The deceased, after the difficulty, went to his father’s store some two or three blocks away, and replying to an inquiry said; “I am stabbed; I was stabbed by the Wallaces.” He said T. D. put the knife in him. (T. D. is a brother of defendant.) The mother of deceased testified to a conversation, had with him after he reached home, in which deceased said: “Mamma, I have been cut. The Wallaces done it.” X said, “Which one?” and he said, “T. D.” McGinnis, an eyewitness for the defendant, was present at the beginning of the difficulty; saw deceased strike old man Wallace and break the skin on his nose and head. He recovered and went at Massey. “The next one out was T. D. Wallace. He grabbed hold of Massey and jerked him around, and Massey hit him on the head, and it staggered Wallace. They kept fighting, and the next I noticed was he knocked the old gentleman down in the street on his hands and knees. At that time X think everybody in the saloon was out, six or eight men. Massey struck first; he jerked his coat off and threw it on the sidewalk. Mr. T. H. Wallace was bleeding; the blood was running down his face and collar. I don’t think the whole thing lasted over a minute or so. I don’t think defendant ever got near enough to be hit or hit. I don’t think he got nearer than six or eight feet. I think he had a bad foot. Massey was backing off across the street, T. D. Wallace and J. IT. Wallace were going in the direction that he was backing, and William Wallace was going there too. The three Wallaces were about eight feet from him. I did not see a knife in anybody’s hand; don’t believe William Wallace ever got close enough to strike Mr. Massey; don’t believe Mr. Massey ever struck him.”

The defendant testified that he was lame, using a crutch; that when the fight began his brother ran out towards where his father and deceased were, and took hold of deceased; that he was retarded by the condition of his foot; that while out in the street he saw Massey strike his father and knock him to his knees, face forward; that he reached to help his father, but he got up before appellant got hold of him; that for the moment his attention was not directed to Massey, and when he looked up the latter was going up the street, and he took hold of his father’s arm and said, “What is all this trouble?” Noticing at the time that his father had a knife in his hand, appellant said, “What on earth are you doing with that knife?” to which his father replied, “He will tell you.” The brother walked up about that time, and they went into the saloon and washed the blood from the face of the father and brother. Appellant claimed that he never struck Massey, and did not get into the fight, and was never closer than fifteen feet to deceased; that the nearest he came to him was when he endeavored to pick up his father in the middle of the street, and Massey went off.

The court submitted the issues of murder, self-defense, defense of another, and the law of principals.

Assuming that there is sufficient evidence to show that appellant engaged in the difficulty, or to raise the issue justifying that conclusion, we do not think it authorized submission of the law of principals. From the case of Renner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102, the law of principals is succinctly stated as follows:

“Where there is no conspiracy to commit an offense, yet it is committed by one, and another is present, and knows the intention of the others, and by words or acts aids the persons engaged, he is guilty with them to the extent of iris knowledge, or for the reasonable consequence of the acts aided.”

The evidence does not suggest the idea of conspiracy. Nor does it, we think, suggest that appellant aided or acted with them under circumstances which would render him responsible for their acts or that of either of them in stabbing deceased. Cases illustrating this view! are collated in Pizana v. State, 193 S. W. 673. The difficulty does not appear to have been anticipated. Appellant’s connection with it arose during its progress; no witness testified in specific terms that appellant struck the deceased. Deceased claimed that he was stabbed by appellant’s brother. Other testimony indicates that the father did so, and he was in possession of the knife after the fight. Whether stabbed by the father or brother, it seems to have been an independent act, and not one for which appellant would be responsible as a principal.

The conversation between the deceased and his father and mother which took place after the deceased went to his home was, we think, inadmissible because it was hearsay.

After the difficulty, and after the deceased received the wound, the deceased after walking two blocks went into a saloon and asked a witness to go and get his coat and hat. He had his hand over his stomach at the time, but did not mention the wound. Witness told him he did not have time to oblige him, and deceased went on home. On his way home he stopped at his father’s store, which is three blocks from where the difficulty occurred, and had some conversation with him, telling him about how the difficulty came up, and that he was stabbed. He then on the suggestion of his father went to the house, met his mother, and told his father to phone for a doctor, after which he got into an automobile and went to the hospital. Before going to the hospital he asked a friend to make him a cigarette; he was undressed. A witness testified that he was very calm; that he wanted to shield his mother, and did not want her to know how bad he was cut. He made a suggestion that his lodge dues touching his life insurance 'be paid before midnight, as he had neglected to pay them, and said he did not know what was going to happen to him. We do not think these conversations, taking place after deceased reached his home, are res gestee. They were mere relation of facts taking place after the condition of tlie mind, which, is the basis for the admission of the statements under the rule of res gestae, had passed off. They were so disconnected from the main transaction as to negative spontaneity, which the law requires to characterize statements admissible as res gestae. The elements of res gestae were wanting. Wigmore on Evidence, § 1750; 12 Cyc. 429; Branch’s Ann. P. C. p. 54, § 84, and cases listed; Deneaner v. State, 58 Tex. Cr. R. 624. 127 S. W. 201.

Deceased’s wound seems not to have been necessarily a fatal wound. After remaining in the hospital for several days and improving, he went to his home. The doctor said he was anxious to go home; that his condition was such that he felt that he could get along just as well at home as he could at the hospital. The wound became infected, however, and he died some three or four days after he got home. The infection caused heart trouble.

The record discloses the-absence of any legal predicate for the admission of the conversations with the deceased aftea- he reached his home upon the theory that they were dying declarations. There seems to have been no proof of a consciousness of impending death, or otherwise a predicate laid which, under the law of dying declarations, is essential. See Branch’s Ann. P. C. pp. 1034, 1035, § 1863, citing cases, among them Lister v. State, 1 Tex. App. 740; Craven v. State, 49 Tex. Cr. R. 80, 90 S. W. 311, 122 Am. St. Rep. 799; Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 930; Highsmith v. State, 41 Tex. Cr. R. 37. 50 S. W. 723, 51 S. W. 919; Francis v. State, 170 S. W. 782; Ledbetter v. State, 23 Tex. App. 256, 5 S. W. 226; Phillips v. State, 50 Tex. Cr. R. 129, 94 S. W. 1051.

The testimony of M. L. Massey as to the details of his business transactions with J. H. Wallace should, we think, not be admitted upon another trial. Neither should the fact that appellant’s bill at Massey’s store was unsatisfied at the time of the trial. Nor the fact that deceased’s lodge dues were paid by a member of his family after he was injured. Nor the fact that the father of deceased met appellant on the street some time after the difficulty, and appellant drew out a knife, and “looked daggers” at the witness, and appeared angry.

The witness McGinnis, having been discredited by proof of indictment for perjury, should have been allowed to explain that he was not guilty of the charge. Johnson v. State, 69 Tex. Cr. R. 107, 153 S. W. 875; Cowart v. State, 71 Tex. Cr. R. 116, 158 S. W. 809; Tippett v. State, 37 Tex. Cr. R. 191, 39 S. W. 120.

Because the evidence is insufficient to show that appellant was culpable under the law of principals, and because of the admission in evidence of the hearsay statements of deceased, the judgment of the lower court is reversed, and the cause remanded.
      <§rs>For other cases see same topic and Kl/Y-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    MASSEY v. TEXAS & P. RY. CO.
    (No. 767.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1918.)
    1. Carriers @=>210 — Shipment op Live Stock — Duties and Liabilities as to Loading.
    It was the duty of a carrier of cattle to load them on the cars, but if the shipper’s agent undertook to and did load them, and as a result of his negligence in overloading the car or rough handling the cattlo were injured, the carrier was not liable for the resulting damage.
    2. Caekieks @=>210 — Shipment op Live Stock —Duties and Liabilities as to Loading.
    If a shipper’s agent merely assisted the train crew in loading cattle under the control of the train conductor, and the car was negligently overloaded and the cattle thereby injured, then the carrier was liable for the resulting damage, but not for any injury sustained by rough handling of the cattle by the shipper’s agent while loading when not authorized by the conductor.
    3. Oabriebs @=3228(1) — Injuries to Live Stock — Burden op Proop.
    In an action for damages to a shipment of calveá’ defended on the ground that the shipper, through his agent, undertook to and did load the calves, and that over its protest the car was overloaded, and that the damage sustained was caused by negligence in overloading and rough handling by the agent, the burden was on the carrier to show that the agent undertook to load the cattle and roughly handled them in so doing.
    4. Depositions @=364(3) — Examination op Witnesses — Responsiveness op Answers.
    In an action against a carrier for damage to a shipment of cattle, a brakeman was. asked, in taking his deposition, whether he was present and heard the conductor request the party in charge of the calves to unload some of them as the car was overloaded, and if so to state fully what they said. In part of his answer he stated that the car was jammed full and too full. He was also asked to state whether he was present and heard the conductor inform those in charge of the loading that they could not load any more calves into the car, and if they did not insist upon loading nine head more, and to state fully what occurred during the loading of the calves. Part of his answer was that this was the worst crowded car of cattle he' had ever seen in 14 years of railroading. Held, that the portions of the answers referred to were not responsive to the questions, and should have been stricken on motion.
    5. Depositions @=>64(3) — Examination op Witnesses — Responsiveness op Answers.
    In such action much of an answer of the conductor to a question asked him as to whether he had anything to do with the shipment and if so what, and to state fully everything he did in regard thereto, held not responsive.
    Appeal from Midland County Court; J. M. De Armond, Judge.
    Action by W. C. Massey against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.

      H. A. Leaverton and J. M. Caldwell, both of Midland, for appellant. E. R. Bryan, of Midland, for appellee.
   Statement of Case.

HIGGINS, J.

Massey shipped a carload of calves over appellee’s line of railroad from Metz to Midland. He brought this suit to recover damages to the shipment alleged to have been caused by “the carelessness and negligence of defendant making” the shipment. The railway company defended upon the ground that plaintiff, through his agent, undertook to load and did load the calves at Metz; that over its protest the car containing same was overloaded; and that the damage sustained by the calves was caused by negligence in overloading and rough handling thereof by said agent in loading.

There is evidence to show that the calves were delivered to defendant at Metz in good condition, and that they were in an injured and damaged condition upon arrival at Midland. The evidence on the part of defendant tended to show that plaintiff’s agent at Metz undertook to load and did load the cattle; that he overloaded the car containing same over the protest of its conductor, and handled them very roughly in loading; that their injuries were due to this overloading and rough handling. On the other hand, the testimony of plaintiff’s agent Allen was that in his opinion the car was not overloaded. He said that the cattle were loaded by himself, a boy that came with him, and the brakeman of the train; that the conductor was there part of the time while they were loading; that when they got 78 head in the car the conductor told them to quit and close the door and they did so. They left nine in the pen. He denied that the conductor told him to take some of the calves out of the car; denied that he refused to remove some of them as the conductor testified he did. He said that he began loading before the arrival of the train; that upon arrival of the train it scared the calves and practically all that had been placed in the car ran out. He also denied that any of the calves were injured while being loaded. As we construe his testimony the conclusion may be fairly deduced that in the loading of the cattle he and the boy with him voluntarily assisted and co-operated with the train crew in loading the cattle under the control of the train conductor.

Opinion. .

It was the duty of the railway company to load the cattle upon the cars at Metz, but if plaintiff, by his agent Allen, undertook to so load the same and did load them and as a result of his negligence in overloading or rough handling the cattle were injured, then defendant is not liable for the resulting damage. Railway Co. v. Edins, 36 Tex. Civ. App. 639, 83 S. W. 253; Railway Co. v. O’Laughlin, 72 S. W. 610; Railway Co. v. Belcher, 41 S. W. 706; Railway Co. v. Stribling, 34 S. W. 1003. On the other hand, if the agent Allen merely assisted the train crew in the loading of the cattle under the control of the train conductor, and the car was negligently overloaded and the cattle thereby injured, then the railway company is liable for the resulting damage. In any event, the railway company would not be liable for any injuries sustained by rough handling of the cattle by the agent Allen while loading. There is no evidence that the conductor authorized any such conduct by Allen. Upon retrial these phases of the cases should be submitted under appropriate instructions.

The burden of showing that the agent Allen undertook to load the cattle at Metz, and that he roughly handled them in so doing, rested upon defendant. Upon this phase of the case the depositions of Conductor Schull and Brakeman Meadow was offered by defendant.' This question was propounded to Schull:

“This is a suit for damage to shipment of one car of calves from Metz to Midland, Tex., on February 17 and 18, 1916, by M. J. Allen to W. C. Massey. Please state whether you, as conductor of the Texas & Pacific Railway Company, had anything to do with this shipment of calves, and, if so, what? Please state fully everything you did in regard to these calves.”

The witness answered:

“I handled this carload of calves from Metz to Midland as conductor for the Texas & Pacific Railway Company. When I got to Metz they were loading these calves into the car. It was 31 o’clock p. m., on the 17th of February, A. D. 1916. We were there 20 minutes. I walked up to the pens and the two men who were loading the cattle were cursing, swearing, and yelling; one man was hanging to the top of the door punching and kicking the calves with a large pair of spurs which he had on his boots. I looked into the ear and I asked the gentlemen how many calves he had to put into the ear; he said 87 head. I told him to stop right now and count the number you now have left in the pens. We counted nine left in the pens. I told him that the car was overloaded and that he could not get that amount of calves into a 30-foot car, and asked him to run 19 head out of car, and he said that he had 78 head in the car and that he would be damned if he would take them out. I told him that if he refused to take them out to close the door as it was impossible to get the other nine in. He asked me how about the nine other head and I told him that it was up to the shipper and the company to transport them to Midland. We left Metz at 11:35 p. m., and arrived at Midland stock yards at 2 o’clock a. m., on the 18th. I and my brakeman assisted the man in charge to unload the calves to see how many were dead. This in order to ascertain how many calves were dead on account of the car being overloaded -and the man in charge refusing to load the ear as per my request at Metz. I found one calf dead and several punched full of holes, which was done by the gentleman that had had the spurs on when he was kicking and punching the calves when they were being loaded. The man in charge could not sign his name and just made an X mark on the stock report.”

The witness Meadow was asked:

“Please state whether or not you were present and heard Conductor C. A. Schull request the party in charge of the said calves to unload some of them out of the car as the car was overloaded, and, if so, please state fully what they said?”

The last sentence of the answer to this question was:

“The car was then jammed full and too full.”

Another question to Meadow was:

“Please state whether you were present and heard Conductor C. A. Schull inform those in charge of loading that they could not load any more calves into the ear, and if they did not insist upon loading nine head more that were left in the pens? State fully what occurred ■during the loading of these calves.”

The last sentence of his answer to this question was:

“This was the worst crowded car of cattle that I have ever seen in my 14 years of railroading.”

It is very apparent that the quoted portions of Meadow's answers were not responsive to the questions propounded. They xlireetly supported the defense relied upon hy the railway company, and the plaintiff’s motion to strike out these portions of the answers should have been sustained. The same is true of much of the quoted answer of the Conductor Schull. All of those portions of his answer not fairly responsive to the inquiry as to what he did, or explanatory thereof, should have been stricken out upon lilaintiff’s motion so to do. For the- error in refusing so to do the cause must be reversed.

The remaining assignments relate to alleged errors in the court’s charge and to the refusal to give instructions requested by plaintiff. It is unnecessary to discuss these assignments in detail. The requested instructions do not go to the controlling issues in the case. The particular objections urged against the charge given are without merit. Upqn retrial the controlling phases of the case as indicated in the first part of this opinion should be submitted in the charge by a concrete application of the law to the facts proven.

Reversed and remanded.

WALTHALL, J., did not sit being absent ■on committee of judges assisting the Supreme Court
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author: HARPER, C. J.

text:
    McDANIEL v. STATE.
    (No. 783.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1918.)
    Appeal and Error <&wkey;608(l) — Transcript— Default Judgment — Necessity op Citation of Return.
    Where transcript on writ of error to review default judgment does not show that defendants appeared, and does not contain the citation and return, the judgment must be reversed; the mere recital that defendants were duly served being insufficient.
    Error from District Couit, Reeves County ; S. J. Isaacks, Judge.
    Action by the County Attorney of (Reeves County, in the name of the State, to enforce collection of delinquent taxes, against Elzada McDaniel. From a default judgment for plaintiff, defendant brings error.
    Reversed and remanded.
    Ben Palmer, of Pecos, Grisham & Grisham, of Sweetwater, and R. N. Grisham, of Ft. Worth, for plaintiff in error. J. A. Drane, of Pecos, for the State.
   HARPER, C. J.

This suit was instituted by the county attorney of Reeves county, Tex., in the name of the state of Texas to enforce the collection of delinquent taxes due on certain described lands, and this appeal is prosecuted from a judgment by default for the amount of state and county taxes, interest and penalties alleged to be due against M. Meierhoffer and Elzada McDan-iels, a widow, and Leo McDaniels, a minor.

The transcript does not show any appearance by defendants, nor does it contain the citation and return, as required by statute. Without the citation and return we cannot determine whether there is such issuance, service, and return of process as is necessary to support a judgment by default, and it is not sufficient that the judgment contains the recital that defendants were duly served with citation. Palomas Land & Cattle Co. V. Good, 184 S. W. 805.

For which reason the cause must be reversed and remanded, and it is so ordered.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.


text:
    McDANIEL v. STATE.
    (No. 784.)
    (Court of Civil of Appeals of Texas. El Paso.
    Jan. 17, 1918.)
    Error from District Court, Reeves County; ,.S. J. Isaacks, Judge.
    Action by the County Attorney of Reeves County, in the name of the State, to enforce collection of delinquent taxes, against Elzada McDaniel. From a default judgment for plaintiff, defendant brings error.
    Reversed and remanded.
    Ben Palmer, of Pecos, Grisham & Grisham, of Sweetwater, and R. N. Grisham, of Ft. Worth, for plaintiff in error. J. A. Drane, Co. Atty., of Pecos, for the State.
   HARPER, C. J.

In this cause _we find the same parties and same cause of action — suit for taxes upon a different tract of land; judgment by default for state reversed and remanded for same reason as in No. 783, 200 S. W. 411, this day handed down.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <§s=5Eor otner cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J. ELY, O. J.

text:
    BLACKMAN v. SAN ANTONIO & A. P. RY. CO.
    (No. 5923.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 2, 1918.
    On Motion for Rehearing, Jan. 30, 1918.)
    1. Master and Servant <&wkey;281 (2) — Injuries .to Servant — Evidence.
    In a railroad employe’s action for personal injuries, due to a defective guard rail used for the purpose of holding open a vestibule door in a Pullman coach, the jury could not find that the plaintiff himself had adjusted such guard rail from evidence that no one else had done so, since such finding would be a presumption based upon the presumption that the door had been closed prior to the injury.
    2. Master and Servant &wkey;>2G4(4) — Injuries Tp Servant — Issues, Prooe, and Variance.
    In a railroad employé’s action for injuries, due to a defective guard rail used to hold open the door of a vestibule in a Pullman car, where the defects alleged were that the rail was bent, old, and worn, and that the catch was old an.d defective, plaintiff was limited in his proof to such defects, and could not prove that the guard rail was defective, in that it had not been properly latched.
    On Motion for Rehearing.
    3. Master and Servant &wkey;>99 — Injuries to Servant — Joint Liability.
    In a railroad employé’s action for injuries, due to an alleged defective guard rail on a Pullman coach, the Pullman company and the railroad company hauling the Pullman coach, if liable at all for the injury, were jointly liable.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by T. L. Blackman against the San Antonio & Aransas Pass Railway Company, with the Pullman Company impleaded. Judgment for defendant against plaintiff, and against defendant in favor of the Pullman Company, and plaintiff appeals.
    Affirmed, and rehearing denied.
    D. Fred Worth and John Sehorn, both of San Antonio, for appellant. Boyle, Ezell, Houston & Grover and Guinn & McNeill, all of San Antonio, for appellee.
   SWEARINGEN, J.

This is a personal injury suit by appellant, Blackman, against the San Antonio & Aransas Pass Railway Company, which impleaded the Pullman Company. Special issues were submitted to a jury. Judgment was rendered against appellant in favor of the appellee railway company, and against the railway company in favor of the Pullman Company.

The cause alleged was that appellant, while in the performance of the duties of his employment, used a handhold furnished on one of the Pullman cars in the railway company’s train. Because the handhold was not a secure handhold, it pulled loose at one end, which caused appellee to fall and receive alleged personal injuries. Appellee railway company demurred, and denied the allegations, and answered that if any one were liable, as alleged in appellant’s allegations, it was the Pullman Company, which owned the car and by contract was bound to maintain it with secure handholds. The Pullman Company demurred to the petition of appellant and to the answer of appellee railway company, denied appellant’s allegations and those of the railway company, and specially answered, among other things, that if the handhold was not a secure handhold, it was because appellant himself put it in the insecure condition.

Appellant was employed as a flagman on a passenger train traveling from San Antonio to Houston, and at Kennedy placed lights, markers, etc., on the end of a Pullman car which had come to Kennedy from Corpus Christi in another of the railway company’s trains. This Pullman car was to be transferred from the Corpus Christi-San Antonio train to the San Antonio-Houston train and become the last ear in the latter train, hence required the equipment, with markers, etc. After finishing with the duty of putting on markers, etc., appellant, in dismounting to adjust the air hose, used the handhold, which came loose at one end. The loosening of the end of the handhold caused appellant’s fall. Further statement of facts will be made in our discussion of the assignments, inasmuch as the controlling questions are, first, whether there is evidence to support the finding of the jury that appellant himself placed the handhold in the insecure position; and, second, was the condition of the handhold negligence per se, because forbidden by the safety appliance statute (Rev. Civ. St. art. 6713).

The second assignment contends that there is no evidence to sustain the fact, found by the jury, that appellant himself insecurely adjusted the loose end of the handhold. This appliance served the dual purpose of holding the outside vestibule door back against the wall of the car when the door was open, and of being used as 'a hand support for those descending the steps of the car. To close the vestibule door, it was necessary to unlatch one end of this appliance, which was relatched to again hold the door when opened. Whenever the vestibule door was opened, the appliance should have been re-latched. The door was in frequent use for ingress and egress. The appliance was consequently expected to be latched and unlatched. On the occasion of the accident the handhold came loose at one end, because it had not been securely latched.

Appellant testified that the vestibule door was open and back against the car wall, and the handhold was apparently in secure position, when he first reached the car and used the appliance as a handhold; but, because the end was not in fact securely latched, the appliance came loose. He testified positively that he did not place the appliance in its position prior to his fall. The appellee undertook to destroy this direct testimony of appellant, and to establish the fact that appellant himself opened the vestibule door and adjusted the appliance, by introducing in evidence the testimony of each of the porters, Pullman conductors, train conductors, auditors, and ticket collectors, who were in service at the time and place of the accident, each of whom testified that he did not open the vestibule door prior to the alleged injury, and, not having opened the door, it followed that not one of those testifying adjusted the handhold.

There was testimony that it was the right 'and duty of the flagman to open vestibule doors and adjust the handhold, if he found the door closed at the time he desired to equip the end of the car for the end car of a train. It was established by this process of exclusion that none of those in charge of either train opened the particular vestibule door prior to the alleged injury. It was also established that the appellant may have opened it himself. Unfortunately this elimination testimony is all based upon the presumption that the vestibule door had been closed at some time prior to the alleged injury. There is not one word of testimony that the door had ever been closed since its creation, not even testimony that it was the custom to close it. It was therefore unlawful for the jury to presume that appellant had opened the door himself, since such presumption was based upon the presumption that the door had at some time prior to the injury been closed. Ft. Worth Belt Ry. v. Jones, 106 Tex. 345, 166 S. W. 1130; Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064; M. P. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324; Moore v. Hanscom, 103 S. W. 673; Lawson on Presumptive Ev. 569, rule 118. As there is no evidence that appellant himself adjusted the appliance prior to his fall, the assignment must be sustained.

What effect this conclusion will have upon cur disposition of this appeal depends, as before stated, upon whether or not the insecure condition of the handhold violated the Texas safety apifliance statute (article 6713). If it did violate that statute, the act was negligence per se, and appellees were compelled to establish the only defense available, which is that appellant adjusted it himself. G., H. & S. A. Ry. v. Kurtz, 147 S. W. 658. Having failed to introduce any evidence to prove this defense, the judgment would have to be reversed. But if the condition of the appliance is not controlled by the safety appliance statute, then appellant has not proven any negligence upon the part of the appel-lee because appellant has failed to prove that the insecure condition was due to acts of the appellee or remained in that condition for such a length of time as to constitute negligence on the part of appellee. M., K. & T. Ry. Co. of Tex. v. Jones, 103 Tex. 187, 125 S. W. 300. This latter conclusion would compel an affirmance, for the reason that appellant failed to establish his case; and, regardless of the jury’s erroneous finding, judgment would have to be for appellee. Article 6713, Revised Statutes of Texas, makes it unlawful for any common carrier engaged in moving intrastate traffic within this state to use “any locomotive, tender, cars, or similar vehicle which is not provided with sufficient and secure grabirons, handholds and foot stirrups.” The use of the words “handholds and stirrups” in such close conjunction clearly indicates that they were associate^ in the legislative mind, and probably could have no application to any but freight cars. Stirrups are used ¡on freight cars, and perhaps other cars, to reach the handholds which form a species of ladder by which employes ascend to the tops of cars, and undoubtedly those appliances were in legislative contemplation when the law of 1909 was enacted. It cannot reasonably be supposed that the Legislature contemplated that the door guard of a Pullman sleeping coach would be included in the word “handhold.” Under such a latitudi-nous definition, a doorknob, the end of a seat, or any other part of a car that could be caught hold of by the hand, would be a “handhold.” It was alleged in the answer that appellant “had no right to use said door guard as a support.” The evidence was ample to show that the guard rail was an appliance for holding the door, and that there was on the car “what is called a handhold,” and “that is a separate and distinct iron” from the guard rail or lever. The guard rail was placed on the car, not to form a “handhold” or “grabiron,” but to hold the door open when so desired. It stood perpendicular with the end of the car when the door was shut, and was lowered across the door, and fastened in a socket fastened to the car, when the door was opened. The evidence shows that the guard rail is too close to the door when lowered to have been intended for a. handhold, and that ample handholds are provided for passengers or employés. One of the witnesses described the appliance as “this little rod that holds the door open when it is opened up there.” The guard rail was in perfect order and condition. The evidence clearly indicates that there was no necessity for appellant to use the guard rail as he did. All the evidence tends to ¿how that the bar or guard rail was not attached to the car for a handhold, a'nd was not intended to be used for that purpose. The guard rail was in perfect condition, and, when used as it was intended it should be, was “safe and secure.” It was not a “grab-iron, handhold, or stirrup,” but was made to hold the door open when it was desired that it should be open. It did not fail to perform any function for which it was designed, and, if it did not perform a function for which it was not intended, it was not the fault of its construction, but the unsafeness of the rod as a handhold arose from the -manner of its use. There was no defect in the rod or the socket, but the uneontroverted evidence shows that the rod was not placed in the socket, which would have held it as it was intended that it should.

Appellant alleged that the rod was bent, old, worn, and defective, and that the “latch or catch” “was old, worn, and defective,” but failed to prove that, or that appellee had failed to place the rod in its socket. The jury found that the rod was not bent, nor the socket out of order. There was no evidence tending in the least to show that the safety appliance act was disregarded. The defects in the rod and socket were specifically alleged, and appellant must be confined to those defects. This proposition is elementary and axiomatic. There was no testimony that tended to show any defects in the rod and socket as alleged by appellant, and, failing on that proof, the only other ground of recovery alleged was that appellee “failed to properly and securely place the end of the said handhold, hand rail, or grabiron in the socket, slot, or receptacle provided for that purpose on said car, and by reason of the defendant’s said negligence, when plaintiff took hold of said hand rail, handhold, or grabiron for the purpose of descending from] said ear as aforesaid, and plaintiff avers that this negligence likewise caused and contributed to cause his said injuries.” The testimony failed to show that the rod was left out of the socket through the negligence of appellees, and on neither count as to negligence was appellant entitled to a verdict.

There was no defect in the rod i or socket, but the negligence, if any, was in the manner of its use. If the rod to fasten a door is a grabiron, handhold, or stirrup within the purview of the Texas statute, it was safe and secure. If the statute required the furnishing of a safe door, and the carrier did so, the fact that the door was left open could not affect the safety and secureness of the door itself. If the statute required a safe and secure lock to be furnished, the failure to lock it would not be a violation of the statute. We are of the opinion that appellant failed to establish a case of liability against appellees.

The judgment is affirmed.

On Motion for Rehearing.

ELY, O. J.

A large portion of appellant’s motion is devoted to a discussion as to whether the statute applies to passenger as well as freight cars, and it may be admitted that it does, and the expression which may be construed otherwise is stricken from our former ■opinion.

In this case the liability of appellee depends first upon the establishing of the fact that the Pullman car was defective, or upon the further fact that appellee had been guilty of negligence in leaving the bar out of the slot. The defects as alleged by appellant consisted in the “handhold or grabiron on said Pullman car” being “old, bent, and defective,” and the “latch or catch provided on said car to hold the end of said hand rail, handhold, or grabiron in place was old, worn, and defective.” The testimony utterly failed to sustain that allegation, for the jury found that the bar of iron was not defective, and therefore there was nothing to prevent the “hand rail, handhold, or grabiron” from fitting in the socket. The evidence showed that it was in perfect condition, and it follows that appellee could not have been negligent, unless it had been negligent in other respects! It also follows that, if the “handhold, hand rail, or grabiron” was not defective, as alleged, the case cannot be brought within the safety appliance act, even though the Legislature had prominently in view, when enacting the safety appliance law, a guard rail on a Pullman car used for keeping the door shut. There was an utter failure of the testimony to establish any defect alleged. The elementary principle that allegation must be answered by proof applies in this case as in any other. The other allegation of negligence was that the bar of iron was not properly placed in the slot or socket made for it. The evidence failed to show that appellee had any connection with such negligence, and the jury so found.

In the motion for new trial it is not claimed that there had been any violation of the safety appliance act, and there is not one word in the brief about any safety appliance. The first assignment of error complains of uncertainty in the answers of the jury to the issues submitted by the court. The second assignment is to the effect that, if the jury found that appellant opened the vestibule door, it is contrary to the evidence; and the third and last assignment is directed at a refusal of the court to give a special charge requested by appellant. The case was tried in the lower court on the basis of negligence in a failure to- place the guard rail in the slot or socket.

If, as so vigorously contended in the motion for rehearing, the guard rail for the door was a handhold within the contemplation of state and federal law, the evidence utterly fails to sustain the allegations as to the defective condition of the guard rail, but, on the other hand, shows it to have been in perfect condition. It was not alleged that a failure to place the bar in the slot or socket rendered it defective under the terms of any law. Appellant did not think that leaving a door open or a rail out of a slot rendered an appliance defective, for he pleaded the defects and then pleaded negligence in the failure to place the guard rail in the slot or socket. If it be admitted that the bar at the door of the Pullman car was a handhold fully within the purview of the safety- appliance act, and that it was defective because it was not placed in the slot, still the evidence fails to show that appellee was responsible for the condition of the guard rail at the time of the accident.

We have considered this ease from the standpoint of the liability of appellee for the defective condition of the Pullman and the negligence of Pullman employés, as that proposition seems well established. Dwinelle v. Railway, 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; Railway v. Roy, 102 U. S. 451, 26 L. Ed. 141; Blake v. Railway, 38 Tex. Civ. App. 337, 85 S. W. 430; Pullman Co. v. Norton, 91 S. W. 841. The two companies were, if liable at all, jointly liable.

The motion for rehearing is overruled.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    TRABUE et al. v. ASH et al.
    (No. 218.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 15, 1917.
    Rehearing Denied Jan. 30, 1918.)
    1. COURTS &wkey;>65 — Special Terms of Court-Duration — Statutes.
    -Although the statute only authorized a regular term of court of a certain length in a certain county, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1720, relating to. special terms of court, a district judge could convene a special term for any length of time in his discretion.
    2. Courts <&wkey;63 — Time por Holding Court —Jurisdiction.
    All proceedings of a district court, at a time when the holding of such court is unauthorized by law, are null and void. >.
    3. Exceptions, Bill of &wkey;>26 — Matters Reviewable — Bills of Exceptions.
    A statement in a bill of exception that objection was made to evidence on certain grounds is not a statement approved by the trial court that those grounds, in fact, existed, and the Court need not search the record to ascertain whether, in fact, the grounds of objection'interposed find support in the facts. ; ! .
    4. Bankruptcy &wkey;>270 — Regulatory of Proceedings — Collateral Attack. / -
    A sale of personal property by a trustee in bankruptcy cannot be collaterally attacked on the ground that it was made without order of court.
    5. Evidence <&wkey;397(6) — Contemporaneous Writings — Parol Evidence.
    Where a deed of land recited that it was given in full settlement of a claim, parol evidence is competent to show that a bill of sale to the grantee executed on the same date was also intended as part consideration, and was part of the settlement.
    6. Bankruptcy <&wkey;339 — Interest of Bankrupt in Property.
    A bankrupt has no right of complaint as to how the trustee divides the property among the creditors.
    7. Adverse Possession <&wkey;>112 — Sufficiency of Evidence.
    Where title to property is claimed "by virtue of any law of limitation, it is incumbent upon the claimant to show cleai-ly that such property has been in his exclusive and adverse possession for the proper period.
    8: Sales <&wkey;144 — Bills of Sale — Description of Property — Sufficiency.
    .A bill of sale describing property “as described in deed from W. to T.,” etc., sufficiently described the property.
    Appeal from District Court, Panola County; John M. Tipps, Judge.
    Suit by R. P. Ash and W. E. Biggs to recover personal property or its value from R. E. Trabue and R. C. Trabue. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    H. N. Nelson, of Carthage, for appellants. W. 6. Banks, of Carthage, for appellees.
   HIGHTOWER, C. J.

This was a suit by appellees, R. P. Ash and W. E. Biggs, as plaintiffs, against appellants, R. E. Trabue and (R. C. Trabue, who were defendants, filed in the district court of Panola county, in which appellees sought to recover from appellants the following described ¡personal property,'or in the alternative its value:

The aggregate value was alleged to be $950. It was alleged by appellees that they were the owners of such property, and that the same was unlawfully seized and taken possession of by appellants, and converted to their own use, and in addition to their prayer for recovery of such property, or in the alternative its value, appellees also prayed for damages in the sum of $50, because of the conversion of such property by appellants.

Appellants answered by general demurrer, general denial, and further specially denied that the machinery sought to be recovered by appellees belonged to plaintiffs, as alleged by them, at the time of this alleged seizure by appellants, or at any other time, 'but that the same belonged to the defendant R. C. Trabue; that at one time the same belonged to the defendant R. E. Trabue, but that the said R. E. Trabue had become a bankrupt, and said property was a part of the assets-of his estate, and that the same was sold to defendant R. C. Trabue by the trustee in. bankruptcy, and was paid for by him, and that said property never did belong to plaintiffs. Appellants further specially answered' that they had had and held peaceable, adverse, and open possession of said property, claiming the same, using and controlling' the same for more than two years before ap-pellees filed this suit, and that, therefore, title to same was perfected in them by the-statutes of limitation of two years.

The case was tried before the court witk-out a jury, and resulted in a judgment in favor of appellees against appellants for the recovery of the planing machine No. 1, with Schimer heads, as hereinbefore described, the value of which was found by the court to he $300, and for the possession of the planing machine edger hereinabove described, the value of which was found by the court to be $50, and also for the possession of the fan and blowpipe connections above described, the value of which was found by the court to be $50, making aggregate value of said items $400. The court further ordered and decreed that in the event the above-described property, the possession of which was decreed to appellees, could not be had and returned to appellees, that then the ap-pellees recover from appellants the sum of $400, same being the assessed aggregate value of such property, and, further, that ap-pellees have judgment for all costs, etc. To this judgment appellants duly excepted, and afterwards, in due time, filed their motion for now trial, which was by the court overruled, and the judgment has been brought here by appeal for review.

The first assignment of error is to the effect that the judgment in this case in favor of appellees in void, for the reason that the same was not rendered at a legal term of the district court of Panola county. This assignment and contention is based upon the following facts: The judgment in this case was rendered on the 4th day of November, 1016. Under the law, the regular September term of the district court of Panola county convened on the 18th day of September, 1016, but owing to the fact that Hon. W. O. Buford, who, up to the time of his death on (he 17th day of September, 1916, was not present on the 18th day of September to open said court, the same was regularly opened by the sheriff of that county, in accordance with the statute, and was adjourned from day to day for three successive days, and on the fourth day the sheriff declared said September term of the court adjourned, in accordance with the statute, and therefore the regular September term, 1910, of the district court of that county was not held, but lapsed. No successor to Judge Buford was appointed by the Governor until the 2-’!d day of September following, on which date the Governor appointed Hon. John M. Tipps, judge of the Fourth judicial district, which embraces Panola county. Judge Tipps promptly qualified as such judge, and thereupon ordered that a special term of the district court of Panola County should be begun and holden within and for said county on the 25th day of September, 1916, and which should remain in session and be adjourned on the 4th day of November, 1916.

Appellants raise no question as to the legality of the appointment of Judge Tipps, or as to his qualifications in any respect, but seem to contend that since, under the law, a regular term of the district court of Panola county could not continue longer than five weeks, Judge Tipps had no authority in law for calling a special session of his court in said county for a longer term than five weeks. Article 1720, Vernon’s Sayles’ Texas Civil Statutes, providing for special terms of district courts in this state, reads as follows:

“Whenever it may become advisable, in the opinion of a district judge, to hold a special term or terms of the district court in any county in his district, such special term or terms may be held; and such district judge may convene such special term at any time which may be fixed by him. Such district judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the judge thereof: Provided, that in the discretion of the district judge, a grand jury need not be drawn or impaneled.”

We see nothing in this statute which warrants the contention of appellants that Judge Tipps was not authorized to convene a special term of the district court of Panola county for a longer period than five weeks. While it is true, under the law, that a regular term of the district court of Panola county could not continue longer than five weeks, yet we are of opinion that the law having reference to regular terms of district courts in this state and fixing their duration has no application to special terms authorized to be convened under article 1720, Vernon’s Sayles’ Texas Civil Statutes, above quoted, and we think that the duration of a special term, such as was called by Judge Tipps, was a matter left to his judgment and sound discretion, and that he was authorized by the article of the statute above mentioned to convene the district court in said county for a longer period than five weeks, as he did, if in his judgment the condition of the docket in that county required or justified his action in doing so.

The second proposition under this assignment is, in substance, that all proceedings of a district court, at a time when the holding of such court is unauthorized by law, are null and void. Of course, we agree that this is a correct proposition of law, hut it has no application here. This assignment is overruled.

The second assignment of error complains of the action of the court in admitting in evidence, over the objection of appellants, a bill of sale executed by Thomas D. Bonner, in his official capacity as trustee in bankruptcy, which purports to convey to appellees, among other things, the items of machinery which were awarded to appellees by this judgment. The bill of sale, the introduction of which was objected to, reads as follows:

“In the District Court of the United States for the Eastern District of Texas, at Tyler.
“In the Matter of R. E. Trabue, Bankrupt. No. 1720. In Bankruptcy.
“Whereas, on the 30th day of December, 1913, the' trustee in the above proceedings executed to R. P. Ash and W. E. Biggs, of Panola connty, Tex., a deed to a portion of lots 122 and 123 in Carthage, Tex., in consideration of the cancellation of a certain vendor’s lien note against said property;
“And whereas, said vendor’s' lien note appears also to be a lien on certain personal property, as described in deed from Miss Kate Whitney to R. E. Trabne, wherein said vendor’s lien was retained, the nature and extent of which and the title thereto is entirely unknown to this trustee, but which it was agreed that the said Ash and Biggs might have thereto such title as this trustee at this time might have, if any he has therein:
“Now, therefore_, I, Thomas D. Bonner, trustee, in the aforesaid proceedings in consideration of said agreement, hereby release unto the said R. P. Ash and W. E. Biggs of Panola county, Tex., such title as this court and this trustee may have in and to said personal property. This 30th day of December, A. D. 1914.
“Thomas D. Bonner, Trustee.
“R. E. Trabue, Bankrupt.”

The special objections interposed to the introduction of this bill of sale were: (1) Because the plaintiffs’ pleadings show that they make the general allegation of ownership of the property sued for, and do not declare on said instrument, as a basis of their cause of action, and said instrument had not been filed among the papers of this cause and notice of filing given to the defendants, as required by law. (2) Because said instrument is not acknowledged by the grantor therein, and the execution of said instrument was not proven, as required by law, before the same could be admitted in evidence. (3) Because there was no order of the bankrupt court authorizing the trustee to convey the property, and there was no order of the bankrupt court confirming said sale, said instrument showing that the same was made without consideration, and therefore less than 75 per cent, of the value of the property conveyed. (4) Because the date of said paper had been changed from January 30, 1915, to December 30, 1913, and there was no evidence introduced explaining the change made in said paper. (5) Because the plaintiffs had, on December 30, 1913, accepted a deed and conveyance by said trustee to two town lots in the town of Carthage in full payment and settlement of the claim they had against the estate of R. E. Trabue, and therefore said bill of sale was without consideration, and the trustee in bankruptcy had no authority to make it, and it passed no title to the plaintiffs.

All of these objections were by the 'court overruled, and the bill of sale from the trustee in bankruptcy admitted, and appellants duly excepted. In allowing the bill of exception, the court appends this explanation:

“This trial was begun on October 12, 1916, and the bill of sale was then introduced. Defendants asked for time to secure additional testimony, the request was granted, and trial was resumed on November 4, 1916, but defendants offered no further testimony to contradict or explain the bill of sale, nor any excuse why, and the testimony offered showed conclusive that the deed and bill of sale were contemporaneous and bore the same date, which was December 30, 1913, and not December 30,1915.”

In disposing of this assignment, it w'ould be sufficient to say that heither the bill itself, as above mentioned, nor the explanation of the trial court in connection therewith, shows as a fact that any of the grounds of objection interposed by appellants to the introduction of the bill of sale existed or were true, in fact, with the single exception that the bill of sale was not formally acknowledged by the trustee in bankruptcy. The statement by appellants in the bill that they objected to the introduction of this evidence on certain grounds is not a statement approved by the trial court that those grounds, in fact, existed, and therefore this bill of exception does not point out any error, and this court would not be required to search the record in the case to ascertain whether, in fact, the grounds of objection interposed to the introduction of this evidence find support in the facts. We would say, however, that the record does affirmatively show that the trustee in bankruptcy did, in fact, execute this bill of sale to appellees. One of the propositions of appellants under this assignment is to the effect that a trustee in bankruptcy cannot make a valid sale of the bankrupt’s property under the bankruptcy law without the order of the bankrupt court, and a confirmation of such sale by such court.

If the bill of exception, in connection with this matter, could be held to show as a fact, and we think it does not, that no order of the bankrupt court authorizing this sale by the trustee was shown to have been made, still we doubt the correctness of appellants’ contention that a sale by a trustee in bankruptcy of personal property belonging to the estate of the bankrupt, in the absence of an order of the bankruptcy court authorizing such sale, would be absolutely void, but we think, clearly, that such a sale of personal property, purporting to be made by a trustee in bankruptcy in his official capacity, cannot be held void in the sense that the same can be collaterally attacked, as was attempted by appellants in this cause. Such a sale, under the bankruptcy law of 1867 (Act Cong. March 2, 1867, c. 176,14 Stat. 517), has been expressly held by our own Supreme Court not to have been void, in the sense that the same could be collaterally attacked, and we have found nothing in the present bankruptcy law that has led us to believe that such a sale would be void in the sense that it could be collaterally attacked. We have examined carefully the authorities cited by appellants in connection with this contention, and without discussing them, we have concluded that none of them can be considered authority for the contention here made by appellants. Keller v. Faickney, 42 Tex. Civ. App. 483, 94 S. W. 103; Beall v. Chatham, 100 Tex. 371, 99 S. W. 1116; Curdy v. Stafford, 88 Tex. 125, 30 S. W. 551; Mims v. Swartz, 37 Tex.

13. In Keller v. Faickney, supra, Chief Justice Gill, speaking for the Galveston Court of Civil Appeals, used this language:

“While the law seems to contemplate that the trustee should procure an order to sell the property of the bankrupt, and it is doubtless the universal practice to do so, we think the regularity of a trustee’s sale cannot _ be collaterally attacked, and that such questions can be raised only in the court in which the proceedings are pending.”

This decision, it will be seen, was rendered after the enactment of the present bankruptcy laws. It will be borne in mind, also, in this connection, that the action of the trustee in bankruptcy here in question had reference to personal property only, and in no manner involves a consideration of what might be required in the way of specific authority to him from the bankruptcy court, if title to real property, depending upon such a sale, were in question, though we do not mean to intimate that the rule would be different in such case. We are not called upon to pass on that question. We have concluded that appellants’ bill of exceptions challenging the action of the court in admitting this bill of sale in evidence points out no reversible error, and this assignment is overruled.

The third assignment of error complains of the action of the trial court in admitting in evidence, over appellants’ objection, certain testimony of appellee W. B. Biggs, the relevancy of which can only be shown by a brief statement at this point of some of the facts upon which appellees claim title to the property recovered by them herein is based.

Miss Kate L. Whitney, a resident of Mississippi, on December 14, 1911, by deed of that date conveyed to appellant R. E. Trabue the following described real property in the town of Carthage, Panola county, Tex.: The west one-half of lot 122, less a designated portion of the same, and the east one-half of lot 123, less a designated portion of same; and by this same deed, Miss Kate Whitney also conveyed to said R. B. Trabue certain sawmill machinery and equipment situated upon said property, including the items of machinery that were recovered by appellees in this suit. The total consideration for this deed to Trabue was $1,961.34, one-half of which was paid in cash at the time the deed was executed, and the balance, amounting to $980.67, was evidenced by the promissory note of R. E. Trabue in favor of Kate L. Whitney, and which was payable at the expiration of one year thereafter, which made the note payable December 14, 1912. This note bore interest at the rate of 10 per cent, per annum from its date, and provided for the usual attorney’s fee of 10 per cent. This note was not paid by Trabue, and on March 19, 1913, Kate L. Whitney sold and transferred the note to the appellees, Ash. and Biggs, who paid full face value therefor.

In the deed from Kate L. Whitney to R. E. Trabue, there was no express retention of a lien on any of the property conveyed thereby to secure the payment of the note executed by Trabue, but the note itself recited the retention of the vendor’s lien as againist the land conveyed by the deed to secure the payment of the note. At the time Kate L. Whitney sold and transferred said note to appellees, Ash and Biggs, she also by written transfer conveyed and passed to Ash and Biggs all right, title, and interest, liens, etc., which she had in or upon the land conveyed by her deed to Trabue, by reason of her being the vendor thereof. On March 20, 1913, appellant R. E. Trabue -was duly adjudged a bankrupt by the United States District Court for the Eastern District of Texas at Tyler, and thereafter, in April, Thomas D. Bonner was duly elected and appointed trustee in bankruptcy in that proceeding.

The note held by appellees, Ash and Biggs, by transfer from Kate D. Whitney, constituted a claim against the estate of R. E. Trabue, bankrupt, and the same was asserted in the bankruptcy court by appellees as a claim against this estate in bankruptcy, and on the 30th day of December, 1913, the amount of this note, including principal, interest, and attorney’s fees, was something in excess of $1,100.

The record before us shows that the trustee in bankruptcy fully recognized the validity of the claim of appellees, Ash and Biggs, against the estate of said bankrupt, R. E. Trabue, and for the purpose of adjusting and settling said claim of appellees against said estate, said trustee in bankruptcy on December 30, 1913, conveyed by deed duly executed to appellees all that portion of lot No. 123 in the town of Carthage which was conveyed by said Kate L. Whitney to said R. E. Trabue on December 14, 1911. This deed from the trustee in bankruptcy does expressly recite that it is made for the purpose of paying the claim of appellees, Ash and Biggs, against the estate of R. E. Tra-bue, in bankruptcy, by reason of said Ash and Biggs being the holders and owners of said note, and the deed further recites that the property thereby conveyed is accepted in satisfaction of said claim of Ash and Biggs against said estate. There is no mention in this deed itself of any personal property beipg conveyed to Ash and Biggs in settlement and discharge of their claim against this bankrupt estate, but on the very same day (December 30, 1913) said trustee in bankruptcy also executed to appellees, Ash and Biggs, the following written instruments:

“In the District Court of the United States for the Eastern District of Texas, at Tyler.
“In the Matter of R. E. Trabue, Bankrupt.
No. 1720. In Bankruptcy.
“Whereas, on the 30th day of December, 1913, the trustee in the above proceedings executed to R. P. Ash and W. E. Biggs, of Panola county, Tex., a deed to a portion of lots 122 and 123 in Carthage, Tex., in consideration of the cancellation of a certain vendor’s lien against said property;
“And whereas, said vendor’s lien note appears to be also a lien on certain personal property, as described in deed from Miss Kate Whitney to R. E. Trabue, wherein said vendor’s lien was retained, the nature and extent of which and the title thereto is entirely unknown to this trustee, but which it was agreed that the said Ash and Biggs might have thereto such title as this trustee at this time might have, if any he has, therein:
“Now, therefore, I, Thomas D. Bonner, trustee in the aforesaid proceedings, in consideration of the said agreement hereby release unto the said R. P. Ash and W. E. Biggs, of Panola county, Tex., such title only as this court and this trustee may have in and to said personal property.
“Signed this 30th day of December, A. D. 1913.
“Thomas D. Bonner, Trustee.
“R. E. Trabue, Bankrupt.”

Now the testimony on the part of appellee W. E. Biggs, which was admitted over the objections of appellants, and which is made the basis of this assignment, was to the effect that it was understood between the trustee in bankruptcy, Bonner, and Ash and Biggs, at the time the deed from the trustee to Ash and Biggs was executed, that Ash and Biggs were also to have the items of personal property, being the machinery which was recovered by the judgment herein, in settlement and discharge of their claim against said bankrupt estate. This testimony was objected to on the specific grounds that the deed from the trustee in bankruptcy to Ash and Biggs and the order of the bankrupt court authorizing the same show that the land conveyed by such deed and accepted by Ash and Biggs was to be in full satisfaction of their claim against the bankrupt estate, and therefore that such testimony contradicted a written instrument and judgment of the bankrupt court.

The proposition is that parol evidence is not admissible to add to or take from a written instrument or the judgment of a court without an allegation of fraud or mistake. This proposition, as an abstract one, announces a familiar rule, but we do not think that it should have application here, for the reason that as shown by this record the deed executed by the trustee in bankruptcy and the bill of sale were both executed on December 30, 1913, and both have reference to the claim of Ash and Biggs as creditors against the bankrupt estate then in the hands of said trustee, and both purport to have been executed by the trustee in settlement and discharge of the claim of Ash and Biggs against said estate, and we think that the deed and bill of. sale should be considered and construed together, as evidencing one and the same transaction, and when so considered there can be no escape from the conclusion that it was the intention and purpose of the trustee in bankruptcy to convey to Ash and Biggs the items of machinery which were sold by Miss Kate Whitney to R. E. Trabue by her deed to him of December 14,1911, a portion of which was recovered by appellees by the judgment herein.

There is no question, in our opinion, but that the evidence in this record shows that the items of personal property, possession of which was awarded by the judgment herein to appellees, was a portion of the machinery mentioned in the deed from Kate L. Whitney to R. E. Trabue, above mentioned, and, of course, when Trabue was adjudicated a bankrupt, and the trustee in bankruptcy was appointed, the legal title to this property passed immediately to said trustee in bankruptcy, and the said R. E. Trabue no longer had any character of title thereto, and it was proper for the bankrupt court, having jurisdiction of this bankrupt estate, to make disposition of the property belonging to the estate such as might be deemed most advantageous to the creditors of said bankrupt, and if in the judgment of the trustee in bankruptcy it was for the interest of such creditors, appellees being among them, to adjust and settle the claim of appellees against said estate by conveying to them the land mentioned in his deed and the personal property mentioned in the bill of sale executed at the same time, we think he was authorized to do so, without any right of complaint in the bankrupt, and we think that it was permissible to show by the witness Biggs that such was the agreement and understanding between the trustee and Ash and Biggs at the time of such conveyance, and as recited by the bill of sale from the trustee. The assignment of error is therefore overruled.

The fourth assignment of error is as follows:

“Because the court erred in overruling the defendants’ motion to withdraw their announcement in this case of ready for trial, and to continue this case for the purpose of securing the evidence of Thomas D. Bonner to prove there was no consideration for the bill of sale to the machinery.”

The proposition under this assignment is:

“When a trustee conveys property without consideration, the sale is void and no title» passes.”

We confess that we are unable to see that this proposition of law has any relevancy whatever, or is germane to any extent to this assignment of error, and for that reason this court might properly ignore this assignment. Nevertheless, we have examined the record in connection with this complaint, and we find there is no merit in it whatever, and the assignment is therefore overruled.

The fifth assignment is as follows:

“Because the judgment of the court should have been for the defendants, because the undisputed evidence shows that the defendants had had certain machinery in their possession, using and claiming the same for more than two years before this suit was filed.”

In connection with this assignment, we have carefully examined the statement of facts, and we have concluded that we would not be authorized to hold that the evidence relative to appellants’ defense of limitation was such as to compel a finding by the trial court that they had acquired title to the items of property recovered by appellees, under the statute of limitation of two years, interposed by 'appellants. We think that instead of the evidence showing without contradiction that this property had been held adversely and exclusively in the possession of appellants for a period of two years prior to the institution of this suit, such evidence was at least in sharp conflict, and we doubt whether the evidence relied upon by appellants on this point, even had there been no contradictory evidence on the part of appel-lees, would have been sufficient to have compelled a finding by the trial court that this property was in the exclusive adverse possession of appellants for the full period of two years prior to the institution of this suit.

It is a familiar rule of law in this state that where title to property is claimed in virtue of any law of limitation, it is incumbent upon the claimant to show clearly that such property has been in the exclusive and adverse possession of the ¡claimant for such period of time as will, under the statute,' devest the true owner of title. This record does not show that such character of proof was made in this ease, and the assignment in this connection is overruled.

The sixth assignment is:

“Because the court erred in rendering judgment for the plaintiffs in this case based on the bill of sale made by Bonner to them, because the same shows that he was only conveying a lien, if any he had, and does not describe any property whatever, and there was no evidence that this property was ever situated on the lots described in the deed from Miss Kate Whitney to R. E. Trabue, but the evidence shows that the machinery here sued for was never on said lots.”

In answer to- this assignment, it is sufficient to call attention to the bill of sale from the trustee in bankruptcy to Ash and Biggs, hereinbefore mentioned, which refutes the contention of appellants in this connection with reference to what the bill of sale conveyed, and as to the remaining portion of the assignment we will say that we have carefully examined the record in connection therewith, and find that the complaint made is not sustained by the record. The assignment is overruled.

This disposes of all assignments of error found in appellants’ brief, and having concluded that none of them point out any reversible error, all are overruled, and the judgment of the trial court is affirmed.
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