author: DANE, J.

text:
    A. G. SCHWAB & SON v. NORWOOD.
    (No. 7050.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 15, 1916.)
    1. Garnishment <S=5>164 — Judgment—Peooe —Affidavits.
    Where plaintiffs’ affidavits for garnishment stated that they had recovered a judgment against their debtor, and that the same was unsatisfied to the best of the knowledge and belief of plaintiffs’ counsel, there being no evidence as to the matter, in the absence of admission on the part of defendant that any such judgment had been recovered, or that, if recovered, it was unsatisfied, the court was not authorized to render judgment against the garnishee, since the affidavits for garnishment cannot be used as pri-ma facie evidence of the existence of the judgment or of its not having been satisfied.
    [Ed. Note. — For other cases, see Garnishment, Cent Dig. § 302; Dee. Dig. <⅜=>164.]

      2. Appeal and Error <3=272 — Reservation op Grounds op Review-^Reptjsal to Permit Proop.
    Plaintiff can take advantage of the court’s refusal to permit Mm to introduce evidence in support of his Case only by excepting to such refusal at the time, which exception must be shown by a bill of exceptions, duly approved by the trial judge, and properly filed in the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1611-1619; Dec. Dig. <3= 272; Trial, Gent. Dig. § 254.]
    3. Appeal and Error <®=544 — Bill op Exceptions — Necessity.
    In the absence of a bill of exceptions challenging the finding of the trial court that no evidence was offered by either party and that plaintiff’s counsel demanded judgment upon the pleadings without evidence, such finding of the trial court must be accepted as true.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2435, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <3= 544.]
    Appeal from Madison County Court; Joe E. Webb, Judge.
    Action by A. G. Schwab & Son against J. M. Norwood. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. J. Poole, of Madisonville, for appellant. J. M. Brownlee, of Madisonville, for appellee.
   DANE, J.

This is an action by A. G. Schwab & Son, appellants, against J. M. Norwood, appellee, by writ of garnishment. Schwab & Son by their attorney, W. J. Poole, on the 10th day of October, 1914, made and filed in the trial court an affidavit, in substance, that, to the best of the knowledge and belief of affiant, A. G. Schwab & Son has an unsatisfied judgment against one S. W. McAfee for the sum of $546, and that said McAfee has not, within the knowledge of affiant, property in his possession within the state of Texas subject to execution sufficient to satisfy said judgment, and that af-fiant has reason to believe, and does believe, that J. M. Norwood has in Ms hands and possession effects belonging to said S. W. Mc-Afee. Upon prayer being made therefor, a writ of garnishment was issued out of the county court of Madison county, Tex., against and served upon said Norwood, on or about the 10th day of October, 1914, citing him to appear at the January term, 1915, of said court and make answer thereto.

On the 5th day of January, 1915, garnishee Norwood answered said writ in effect as follows:

That on the 8th day of May, 1914, he entered into a conditional contract with one S. W. McAfee, subject to the provisions of article 3971, Revised Statutes of 1911, known as the “Bulk Sale Daw,” by which the said McAfee agreed to sell, and Norwood agreed to purchase, a certain stock of drugs, store fixtures, etc.,, the property of said Mc-Afee, situated in the town of Madisonville, Tex., at an agreed price of $4,400, and by which Norwood took charge and possession of said property subject to the terms of said conditional contract. That on the 9th day of May, 1914, the said McAfee, pretending to comply with the requirements of said article 3971, and after request in good faith had been made by Norwood therefor, made the following affidavit:

“I, S. W. McAfee, the owner of the drug store situated in the town of Madisonville, Texas, do solemnly swear that I am indebted to the following named parties and no other parties or persons for goods wares and merchandise that make up the stock in said drug store aforesaid:
“Hugh Perry, Dallas, Texas, $450.00.
“San Antonio Drug Co., San Antonio, Texas, $700.00.
“A. G. Schwab & Son, Cincinnati, Ohio, $500.-00.
“Waco Drug Co., Waco, Texas, $220.00.
“S. W. McAfee.
“Sworn to and subscribed before .me this the 9th day of May, 1914.
“T. J. Ford, Notary Public in and for
“Madison County, Texas.”

That before finally concluding the trade, to wit, on the 11th day of May, 1914, Nor-wood by registered letter notified A. G. Schwab & Son, as a creditor of McAfee, of his trade with said McAfee, which said letter was received by said Schwab & Son. That, not having heard from said Schwab & Son, he settled with said McAfee for said stock so purchased, by paying part cash and by executing and delivering to said McAfee his two promissory notes now held by McAfee. That he heard nothing from Schwab & Son until August 5, 1914, at which time said Schwab & Son instituted suit against said McAfee for their said debt of $500. That, after being informed that the affidavit made by said AcAfee did not disclose the names of all of his creditors and the sums due each of them as required by law, he (Norwood) demanded of McAfee the return of the money paid and notes received under said conditional contract, and a cancellation of said contract. That, upon refusal of such demand by McAfee, Norwood instituted suit in the district court of Madison county against said McAfee praying for the cancellation of said contract and notes and for judgment for the money so paid, which said suit is now pending in said court. That, if required to answer said writ of garnishment at this time, he says that at the time the writ of garnishment was served upon him he did not owe said McAfee anything, nor does he now owe him anything, but that he had paid all that he had contracted to pay for said stock of drugs, etc., and that he had .no effects of said McAfee in his pp3session at such time, nor has he now such effects, unless said district court should cancel said contract in his said suit in said court, and in that event he will not have in his possession any such effects unless McAfee returns to him his notes and the money paid by him to McAfee in compliance with said conditional contract.

Appellant Schawb & Son filed a traverse of appellee’s answer, and say that by reason of the fact that in mating up the list of indebtedness of McAfee, and of the names of his creditors, as shown by the affidavit here-inbefore set out, McAfee failed to mate a complete list of all his creditors, as required by said article 3971, and by reason of the fact that appellee Norwood did not give the notice to Schwab & Son required by law, the sale of said stock of drugs by McAfee to Norwood is a legal fraud, and the title to said property is still the property of McAfee and subject to their writ of garnishment.

Among other things unnecessary to state for a decision of the issues presented by this appeal, said article 3971 provides:

“That any sale or transfer * * * of an entire stock of merchandise in bulk, shall be void as against creditors of the seller * * * unless the purchaser * * * shall, at least ten days before the sale or transfer, in good faith, make full and explicit inquiry of the seller * * * as to the name and place of residence or place of business of each and all creditors of the seller * * * and the amount owing to each such creditor by the seller. * * * and obtain from the seller or transferer a written answer to such inquiries, which answer shall be sworn to by the seller, * * * and unless the purchaser * * * at least ten days before the sale or transfer, in good faith, notify or cause to be notified personally, or by registered mail, each of the seller’s * * * creditors, of whom the purchaser * * * has knowledge, of said proposed sale or transfer.”

No evidence was introduced upon the trial of the case, but the same was submitted to the court, without the intervention of a jury, upon the pleadings of the parties. Whereupon the trial court rendered and caused to be entered of record the following judgment:

“On this the 18th day of January, A. D. 1915, came on to be heard the above entitled and numbered cause, and it appearing to the court upon the answer of the defendant, J. N. Norwood, garnishee, that he was not and did not have anything in his possession, that the plaintiff A. G. Schwab & Son was entitled to recover of and from him, it is therefore considered, ordered, adjudged, and decreed by the court that the plaintiff, A. G. Schwab & Son, take nothing by their writ of garnishment, and that the defendant, J. N. Norwood, go without day and recover his costs in this behalf expended.”

Upon written request of appellants, the trial judge, on the 20th day of January, 1915, three days before adjournment of court, filed his findings of facts and conclusions of law. Among the findings of facts so found are the following:

“(1) I find as a fact that there was no evidence offered by either side in the trial of said cause before the judgment was rendered save and except the sworn pleadings filed in said cause.”
“(6) I further find as a fact that immediately upon the reading of the answer of the defendant herein, which was duly sworn to, the plaintiff’s counsel demanded a judgment of the court at once.”

Appellant’s first assignment of error is (1) that the trial court erred in rendering judgment in this cause without hearing evidence in support of appellant’s cause of action, because appellant was willing and ready to introduce testimony in his behalf, and (2) that the court erred in not setting aside the judgment rendered, upon appellant’s motion for new trial, so that each party might introduce his evidence in support of their respective contentions, in order that either party might have their statement of facts in the higher court, in the event an appeal should be taken.

It will be noticed that in paragraphs 1 and 6 of the trial court’s finding of facts, herein-before set out, it is stated that no evidence was introduced by either party, and that upon the demand of appellants judgment was rendered upon the pleadings of the parties, without any further evidence.

While it is stated by appellants in their affidavits for garnishment, filed October 10, 1914, that they had recovered a judgment against S. W. McAfee for $546.90 on the 6th day of October, 1914, and that the same was then unsatisfied, to the best of their knowledge and belief of appellant’s counsel, there was no admission on the part of appellee that any such judgment had been recovered or, if so recovered, that it was still unsatisfied. We think no one will or can seriously contend that the affidavit for garnishment, or any allegation in appellant’s reply to appellee’s answer, can be taken as sufficient proof of the existence of such judgment, or that it is still unsatisfied, to authorize the trial court to render a judgment against appellee in this cause. The purpose of the affidavit of counsel that “he had reason to believe, and did believe, or that to the best of his knowledge and information he believed, such judgment had been recovered,” was to authorize the issuance of the writ of garnishment, and was not intended to be, nor.can it be, used as prima facie evidence of the existence of said judgment, or that, if it ever existed, it was unpaid at the time of the trial of this cause. That no evidence was introduced at the trial of the case is undisputed. If the court refused to permit appellant to introduce his evidence, and such refusal was error, appellant could take advantage of such error only by excepting to such refusal at the time, and such exception must be shown by a bill of exceptions duly approved by the trial judge, and properly filed in the trial court.

We have examined appellant’s eight bills of exceptions found in the record, and none of them assign the alleged refusal of the court to hear evidence as error. Therefore appellant’s assignment cannot be considered by this court. Neither do we find any bill of exception challenging the findings of the court that no evidence was offered by either party upon trial, and that appellant’s counsel demanded judgment of the court upon the pleadings of the parties without evidence. In the absence of such bill of exception, such findings of the court must be accepted as true.

From the state of the record in this case, it is apparent that appellant stands in the attitude of demanding a judgment in his favor against appellee without having offered any proof showing that he was entitled thereto.

Having reached the conclusions above expressed in disposing of appellant’s first assignment, which includes assignments 1, 2, and 3 in the record, we deem it unnecessary to consider in detail the remaining assignments, as it follows that as appellant has failed to show that he held an existing, unsatisfied debt against McAfee at the time of the trial of this cause, he was not entitled to a judgment against the garnishee Norwood, and therefore the question as to whether or not Norwood’s purchase from McAfee was void under the provisions of article 3971, supra, becomes and is immaterial. Having considered all of said assignments, and having reached the conclusion that none of them present reversible error, we overrule them.

We find no error committed by the trial court in rendering judgment for the appel-lee, and therefore such judgment is affirmed.

Affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§rs>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    THATCHER et al. v. MATTHEWS et al.
    (No. 5523.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 8, 1915.
    Rehearing Denied Jan. 26, 1916.)
    1. Appeal and Error <©=>636 — Record on Appeal — Statement oe Pacts — Sufficiency.
    The Court of Civil Appeals is justified in refusing to reverse a cause where the plaintiff in error brings up a statement of facts which fails to show what the testimony actually was.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2285, 2776-2782,. 2829; Dec. Dig. <©=3635.]
    2. Boundaries <©=343 — Establishment—Nature of Action — Judgment—Sufficiency.
    In a suit to establish boundaries, in form of trespass to try title, the judgment need not recite the boundaries established, but it is sufficient if the corners are established, by monuments and barriers, if such a description would enable the sheriff to put the successful party in possession.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. § 208; Dec. Dig. <®=>43.]
    3. Public Lands <©=>176 — Patent—Effect.
    One holding a patent from the state to certain lands can recover such lands, unless his patent conflicts with a prior survey admitted to be owned by another party.
    [Ed. Note. — Por other cases, see Public Lands, Cent Dig. §§ 571-575; Dec. Dig. <©=>176.]
    4. Appeal and Error <©=3994, 1003 — Review— yuissfloNS for Jury — Weight of Evidence — Credibility of Witnesses.
    In an action to determine boundaries, the jury are the judges of the credibility of witnesses and of the weight of the testimony.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906, 3938-3943; Dec. Dig. <©=3994, 1003.]
    5. Boundaries <©=337 — Establishment—Sufficiency of Evidence.
    Evidence helé sufficient to sustain the findings of the jury as to proper location of boundaries of plaintiff’s land.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 184-194; Dee. Dig. <©=337.]
    6. Appeal and Error <©=31053 — Harmless Error — Cure of Error.
    Where a statement was erroneously admitted as to a county boundary dispute, the error was cured by instructing that the instant action to settle boundaries between parties had nothing to do with the other controversy, especially where the statement had been on file for 6 years and was used on a former trial without objection.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. <©=> 1053.]
    7. Boundaries <§=>36 — Evidence <©=>342 — Documentary Evidence — Government Records — Admissibility.
    Although a map was made subsequent to the bringing of an action to define boundaries between private lands, a copy of such map certified from the land office arcJives was admissible in the action under Rev. St. art. 3696, providing that such copy shall be received as evidence in all cases where the original would be evidence.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 166-162, 164, 166-176; Dec. Dig. <©=>36; Evidence, Cent. Dig. §§ 1302-1314; Dec. Dig. <©=3342.]
    8. Appeal and Error <©=>692 — Bill of Exceptions — Sufficiency.
    Where a bill of exceptions stated that one party offered to prove certain things by a witness, that was sufficient as an allegation that the witness would have so testified.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. <©=> 692.]
    9. Boundaries <©=>35 — Establishment—Evidence — Admissibility.
    In an action to establish boundaries between private lands, it was not error to exclude testimony that the witness knew where people living around surveys recognized the boundaries thereof to be, since such testimony did not show that the witness knew where the corners were, nor where they were claimed to be by general reputation, nor where the owners claimed they were.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 153-155, 157-159, 163, 165, 177-183; Dec. Dig. <S=>35.]
    Error from District Court, Colorado County; M. Kennon, Judge.
    Action by John Matthews and others against John Thatcher and others. Judgment for plaintiffs, and defendants bring error.
    Affirmed.
    See, also, 33 Tex. Civ. App. 133, 76 S. W. 61; 105 S. W. 1006.
    A. J. Wirtz, of Eagle Lake, and Carothers & Brown, of Houston, for plaintiffs in error. J. J. Mansfield, of Columbus, S. L. Green, of Houston, and W. L. Adkins, of Columbus, for defendants in error.
   Findings of Pact.

JENKINS, J.

This is a boundary suit, the issue being whether or not the survey patented to John Matthews conflicted with the prior survey in the name of Thos. Cartwright. Th£ Cartwright survey, league No. 10, was an Austin Colony survey, made by Rowson Alley in 1824, and was one of a number of league surveys made by the same surveyor, beginning at the Kinehloe No. 1, and extending up the Colorado river on the north side to and including No. 13, in the name of James Ross. The relative positions of surveys Nos. 9 to 13, inclusive, as called for in their original field notes, is shown by the following sketch from the Austin Colony map on file in the General Land Office:

No name appears on the survey shown on the sketch as lying north of the Cartwright survey. A sketch of the official map of Colorado county made in 1841 shows the same relative positions of these league surveys and has the name of T. Cochran marked on the survey north of the Cartwright. This survey has evidently been abandoned, as, regardless of where the northeast corner of the Cartwright is situated, the land covered by it is now covered by surveys made in 1873 and subsequently.

The field notes of the Cartwright are as follows:

“Beginning at the S. "Wl corner of No. 9 (the Rabb league); thence N. 20° E., 13,400 vrs., to a stake in prairie; thence S. 70° W., 2,000 vrs., to stake in prairie; thence S. 20° W., 12.500 vrs., to S. W. comer on cottonwood, marked No. 10. 2 feet dia., from which a mulberry brs. S. 20° W., 10 vrs., 12 in. dia., a cotton brs. N. 20° E., 15 vrs., 4 feet dia.; thence down the Colorado river with the meanders thereof, including in these lines one sitio (league) of land.”

The field notes of No. 9 are as follows:

“Beginning at the S. W. comer of league No. 8; thence N. 20° W., 12,500 vrs., to the N. E. corner, stake in prairie; thence N. 20° W., 2,000 vrs., to the S. W. (N. W.) corner, a stake in prairie; thence S. 20° W., 11,200 vrs., to the S. W. corner on a cottonwood, marked No. 9 and 10, 18 in. dia. a cottonwood brs. N. 87° W., S vrs., 9 in. dia. a hackberry brs. S. 78° E., S vrs., 7 in. dia.; thence down the river with meanders thereof to the beginning, including one sitio (league) of land.”

The Dyer calls to begin at the lower corner of No. 12, and to run thence N. 47° E., 10,300 varas, to “a corner planted in prairie”; thence S. 70° W., 12,500 varas, to the upper corner of No. 10 on the Colorado river.

No. 12 calls to begin at the upper comer of No. 11, giving bearing trees, and to run thence N. 47° E., 10,300 varas, to corner planted in prairie. Thence N. 20° E., 1,000 varas, where another corner was planted in prairie. Thence S. .77° W., 8,900 varas, to river, giving bearing trees. Thence down the river with its meanders to the beginning.

It will thus be seen that, according to the calls in the field notes, Nos. 9 and 10 have a common corner on the river, and that the east line of No. 10 exceeds in length the west line of No. 9, 2,200 varas; that Nos. 10 and 11 have a common corner on the river; and that the west line of No. 10 exceeds in length the east line of No. 11 400 varas, and is 600 varas S. 20° W. from the east comer of No. 12.

The following sketch will serve to illustrate the respective contentions of the parties hereto:

Plaintiffs in- error claim river formerly ran as indicated by tracing from point H. through E. to point below A. The evidence does not sustain this contention.

The Cartwright survey, as claimed, by defendants in error, is embraced in the lines A, B, C, D, and, as claimed by plaintiffs in error, is embraced in the lines E, E, G, H. There is no dispute between the parties hereto as to the location of the side lines of the Cartwright survey from E to B, nor from C to H, but the defendant in error contends that the original corners are ⅜⅛ A, B, C, and D, while the plaintiffs in error contend that the same are at E, F, G, and H. None of the original trees or stakes called for in the field notes can now be found, and it is doubtful if any of them were ever seen by any one who testified in this case. The plaintiff in error, defendant, claims to have been with a surveyor in 1852, who found what he recognized as a marked tree at the southeast corner of No. 10 at the point E, and also the original stake in the prairie at the point F, called for as the northeast corner. Plaintiff in error was then 12 years old. One of plaintiffs’ witnesses, a survey- or, claims to have found the tree called for on the southwest corner at the point D, but that was in 1894 or 1895, when he was surveying a subdivision of the Cartwright survey, and it does not appear that he then knew there was any dispute as to this corner, by reason of which, perhaps, he did not make a careful examination. On the east line of No. 10 there is a brick monument, placed there some time in the 80’s by the then owner of a part of No. 9, for the northwest corner of said survey, and it has ever since been, and is now, recognized as the northwest corner of said survey.

At the point “m” on the sketch there is a! large rock, some 3 or 4 feet high, which has been, since the memory of man runneth not to the contrary, and still is, recognized as the north corner of the Dyer. The defendant himself testified that ever since he could remember, this rock has been recognized by everybody in that community as the corner of the Dyer.

April 1, 1846, Dyer and Chaney deeded to Foote and Foote a part of the Cartwright survey, beginning on the bank of the river (point “i” in sketch) calling for two bearing trees and running thence N. 20° E., 2,200 varas, to south corner of the Geo. W. Thatcher land (to point “5”); thence N. 70° W., 516 varas, to said Thatcher’s southwest corner (to point “k”); thence N. 20° E., 9,153 varas, to stake in prairie (point “1”); thence N. 20° W., 924 varas (point C); thence S. 20° W., 12,500 varas, to river (point D) calling for bearing trees; thence down the river with its meanders to beginning. The record does not show that any of these bearing trees were found. At the time this deed was made, Geo. W. Thatcher, father of plaintiff in error, owned the lower part of the Cartwright survey.

The act orea'ting Wharton county (April 3, 1846) calls for same to cross the river at the southeast corner of the Cartwright survey, and to run thence to the northeast corner of same, and thence N. 45° E., etc. The map of Colorado county, dated 1841, showed the northeast corner of the Cartwright to be located as claimed by defendant in error. The map of said county, dated September 30, 1881, showed said corner to be located as claimed by plaintiff in error. The map of Wharton county, dated April 1, 1906, shows said corner to be located as claimed by defendant in error.

This is the third appeal in this case. See Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61, and Thatcher v. Matthews, 105 S. W. 1006.

Opinion.

We fell that we would have been justified in refusing to reverse this case for the reason that plaintiff in error has not brought up a sufficient statement of facts. The statement of facts herein embraces 291 pages, besides 15 maps and sketches. A large part of the testimony is that of surveyors, of which the following is a fair sample:

"l set up my instrument here (indicating) and had the willows and everything cut out .until I could see a point there (indicating'). * ‘ ⅜ * It appeared that the erosion was not only at this point (indicating) but was also here (indicating). It cut here (indicating) and there (indicating) too. * * ⅜ The way the map shows it comes across there (indicating) and there (indicating). There (indicating) is the first place we crossed it. It runs along in that direction (indicating).” .

Presumably the witness had some of the various maps iu Ms hand, and when he said “here” and “there,” he indicated the places to which he referred by pointing them out on the map. But as the language is transcribed in the statement of facts, it “indicates” nothing to us. By carefully reading the entire testimony, and comparing it from time to time with the various maps and rereading portions of it several times, we have been able to surmise what the witnesses meant. He who seeks a reversal at the hands of an appellate court should send up a statement of facts wMeh plainly shows what the testimony was.

Defendant insists that there is no sufficient judgment in this case for the reason that it was agreed that this was a boundary suit, and neither the verdict nor judgment fixes the boundary between the surveys. With this contention we do not agree. It is true, in most boundary suits that it is necessary that the verdict should describe the boundary as found by the jury. Johnson v. Gary, 157 S. W. 237. But the un-contradicted evidence in the instant case shows that corners of defendants in error are established on the ground by monuments and bearings. There is no dispute as to the location of their lines and corners. This suit is in the form of trespass to try title. The defendants in error have, a patent from the state, and are entitled to recover the land sued for, unless it conflicts, in whole or in part, with the prior survey owned by defendant. This was made plain to the jury by the charge of the court. The necessary effect of their verdict for plaintiff is to find that the north boundary line of the Cartwright survey does not extend far enough north to include any part of plaintiff’s survey. It was incumbent on plaintiffs to establish this fact; further than this the location of the north line of the Cartwright survey is not material to the issue involved herein. The sheriff would have no trouble in putting plaintiffs in possession from the description in the judgment, which describes the land as described in plaintiffs’ petition. Bank v. Webb, 128 S. W. 428.

The plaintiffs in error assign as error that the verdict-of the jury is against the preponderance of the evidence to such extent as to show that the same is not based upon the evidence, but is the result -of passion and prejudice. While the evidence would have supported a verdict for plaintiffs in error, we do not think that it is against the preponderance of the evidence, the jury being the judges of the credibility of the witnesses and the weight to be given to their testimony; and, certainly, the evidence on the part of defendants in error is sufficient to support the verdict.

There is no question but that the river has shifted considerably since about 1880, since which time the witnesses have observed it, and doubtless it did so prior to that time. For instance, at about 200 yards below where defendant in error claims the southeast corner of the Cartwright to be, it has cut across a narrow bend, leaving the land in that bend upon the north side, where it was formerly upon the south side. Also between the points claimed by the parties hereto as the southwest corner, the river has been eating into the bank and shifting to the east. The evidence as to this is sufficient to account for the west line crossing and recrossing the river between these points. But the evidence, to say the least of it, justifies the conclusion that the river never ran at the point claimed by plaintiff in error as the southwest corner of the Cartwright. At this point (E) there is a depression of some 7 or 8 feet, in which large trees are growing. This depression, claimed by defendant in error to be the old bed of the river as he saw it in 1852, does not connect above with the river, but after extending a short distance west, turns north and then in an easterly direction and recrosses the eastern line, and heads somewhere in the Rabb survey. Between the points E and A there is a growth of large timber. Two of these trees, elms, were cut down, and an expert testified that they were respectively 112 and 125 years old. The soil on each side of the line between these points is not alluvial deposit, but the original black soil of the bottom.

Measuring from the point A, N. 20° E., 13,400 varas, as called for in the field notes, and thence N. 70° W., 1,862 varas, a point is reached 400 varas north of the corner of No. 11 as it should be according to the distances called for for the west line of No. 10 and the east line of No. 11. But beginning at the point B and running the same courses and distances, the point reached is 1,000 varas, N. 20° B., of the Dyer corner, and extending the line from E to F where plaintiff in error claims the stake planted by Rowson Alley in 1824 was found in 1852, and running thence N. 70° W„ 1,862 varas, a point is reached north of the northeast corner of No. 12. If the west line of No. 10 be run from the point G to H, as claimed by plaintiffs in error, it will be 12,980 varas, instead of 12,500 varas, as called for in the field notes; but if it be run from C to D, it will be 12,500 varas. If the brick monument be taken as the correct northwest corner of No. 9, and the point A be taken as its southwest corner, there is an excess of 957 varas in its west line. If the point E be taken as its southwest corner, the excess is 357 varas. There is nothing in the record to show how this point at the brick monument was located as the northwest corner of No. 9.

The land sold by Dyer to Foote in 1847 was presumably surveyed, as it calls for bearing trees at its beginning corner on the bank of the river. These bearing trees cannot now be found, but there seems to be no dispute as to where this corner is. It is on a high bluff of such a nature that the north bank has probably washed in but little since 1824. This bend is indicated by the plat accompanying the field notes made by original surveyor Alley, and while he does not give the meanders of the river, he .must have allowed for the same, as otherwise the area of No. 10 would not be correct. This is also true as to bends indicated in the original plat of No. 9. Beginning at this bend in the river, and running courses and distances as called for in the deed, shortening the line from “i” to “j” 7 varas, the north line of No. 10 is reached, as claimed by defendants in error.

Judge Wells Thompson, as administrator of the estate of Foote, subdivided the Foote land, the west part of No. 10, in 1872, up to, but not beyond, the north line, as claimed by defendants in error, and down to the point D. There are rocks at the points B, “1,” and O, and there is evidence in the record to the effect that they have been recognized for many years by the owners of No. 10, including plaintiffs in error, as marking the north line of said survey.

Beginning at the point “i” and running S. 70° E. to the east line of No. 10 at the point “n,” the distance to the southwest corner of No. 10 should be 2,027 varas. From “n” to A is 2,100 varas, but to the point E is only 1,500 varas. In other words, if we begin at the point “i” and run N. 20° E., 11,366 varas (allowing 7 varas shortage, as found between “i” and “j”) for the north line of No. 10; thence north 70° E. the distance for the northeast corner of No. 10, and thence S. 20° W. to A, we have an excess of 66 varas, which is about as accurate as a line over 7 miles long would ordinarily be claimed. But if we stop the line at E, we have a shortage of 534 varas. The shortage in the north line of No. 10 is 138 varas. This may be accounted for by the surveyor who ran the line in 1852, using the same variation as called for in Alley’s field notes, whereas he should have made an allowance for the change in the variation occurring for a period of 28 years. The evidence shows that this change for this time would have amounted to 132 varas. In other words, if the surveyor in 1852 had used the same variation that was used in 1824 in running a line 13,-400 varas, he would have placed the corner 132 varas too far west. The evidence shows that this east line was cut out and marked in 1852, and if in subsequent surveys it was adopted as the true line, and the west line was fixed from the rock marking the Dyer corner, there would be a shortage of 132 varas in the north line of No. 10.

The second assignment of error complains of the action of the court in permitting to be read the statement of counsel in cross-interrogatory to the witness Frazier; that there was a controversy between Colorado county and Wharton county as to the county line. The court instructed the jury that this suit had nothing to do with such controversy, in view of which we do not think the error was material. Besides this, the deposition had been on file for 6 years; it had been used on a former trial hereof, and no objection had been filed as to the manner and form of taking the same, for both of which reasons we overrule said assignment.

The third assignment relates to the' admission of a certified copy from the land office of a portion of the map of Wharton county, dated April, 1906; the objection being that said map was compiled 4 years subsequent to the filing of this suit. We think it was admissible as an archive of the land office, regardless of when it was compiled. R. S. art. 3696; Sullivan v. Solis, 52 Tex. Civ. App. 464, 114 S. W. 462. This map showed the northeast corner of No. 10 to be as claimed by defendant in error. Plaintiff in error had previously introduced a map of Colorado county, dated September 30, 1881, showing the northeast corner of No. 10 to be as claimed by plaintiff in error. Stroud v. Springfield, 28 Tex. 670, 671.

We do not think there is any merit in the objection to remarks of counsel, as shown by the fourth and ninth assignments of error.

The certified sketch of Austin Colony surveys was undoubtedly admissible. The assignment of error as to the certificate of the commissioner of the land office is overruled for the reason that we think it appears therefrom that he was certifying only to matters which appeared from the records of his office, and not as to facts he may have learned aliunde.

We do not agree with the defendants in error that the eighth assignment should not be considered for the reason that the bill of exception does not show what the answer of the witness would have been. The bill shows what plaintiff in error “offered to prove” by the witness, and we think that this is equivalent to stating what the witness would have testified had he been permitted to answer the question propounded. Irrigation Co. v. Dodd, 162 S. W. 946. The fact proposed to be proven by the witness who had testified that he had run out practically all of the side lines of the surveys from No. 1 to 10, was that “he knew where* the corners were, as recognized by • the people living around these surveys, and that these recognized corners, in almost every instance, were further out from the river than course and distance called for.” It will be seen that there was no effort to prove by the witness that he knew where any such corners were, nor where they were claimed to be by general reputation, nor where the owners of such surveys claimed them to be, but only where they were recognized to be “by the people living around these surveys.” We think that the court did not err in sustaining the objection to this testimony. Stroud v. Springfield, supra.

We do not think that the charge of the court is subject to the criticism made against it in the assignments of error, nor that there was error in refusing the special charges requested.

For the reasons stated, the judgment of the trial court is affirmed.

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


author: LANE, J.

text:
    BROUSSARD v. WILSON et al.
    (No. 7076.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 6, 1916.
    Rehearing Denied Jan. 27, 1916.)
    1. Parties <⅜=>25 — Misjoinder—Defendants.
    In a suit to enjoin a county and a contractor from execution of a contract between them on the ground of its invalidity and to enjoin an issue of bonds by the county with which the contractor could not possibly be connected, there is a misjoinder of parties.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 31, 36-40; Dec. Dig. <⅜=>25.)
    2. Appeal and Erro» <§==51040 — Review-Harmless Error — Rulings on Pleadings.
    Any error in sustaining a demurrer to the petition on the ground of misjoinder was harmless, where the case was tried as though no demurrer had been sustained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <§=> 1040.]

      3. Counties <©=223 — Contracts — Actions — Evidence.
    In a suit to enjoin a contract to furnish a county with oyster shells for road building and repairing, evidence held to show that the parties intended that the shell should be paid for out of the current revenues and that there was reasonable ground to believe that such revenues would be sufficient for the purpose.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 360-362; Dec. Dig. €=223.]
    4. Counties <@=.150 — Indebtedness—Consti-tutionai. Limitations — “Debt.’’
    A contract to furnish a county oyster shells for road building and repairing to be paid for out of the current revenues of the county did not create a “debt” within Const, art. 8, § 9, limiting county indebtedness.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 165, 166, 215-217; Dec. Dig. <@= 150.
    For other definitions, see Words and Phrases, First and Second Series, Debt.]
    5. Counties <@=160 — Fiscal Management— Transfer oe Funds.
    Under Rev. St. 1911, art. 1440, giving the commissioners’ court power to transfer money from one fund to another, provided that the funds collected for jury fees, from sale of es-trays, and all occupation taxes, shall be first applied to the payment of the classes of claims named in article 1433, authorizes transfers from the general fund, the jury fund, the contingent fund, and the depositary interest fund, made up from taxes for the preceding year, to the road fund.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 219; Dec. Dig. <S=160.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Suit by J. J. Broussard against R. W. Wilson and others for injunction. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    W. R. Blain, of Beaumont, for appellant. Williams & Neethe, of Galveston, and Minor & Minor, of Beaumont, for appellees Hanson Sons. Geo. D. Anderson, of Beaumont, for appellees R. W. Wilson and others.
   LANE, J.

On the 31st day of December, 1914, J. J. Broussard, as a taxpaying citizen of Jefferson county, on behalf of himself and other taxpayers of said county, filed his petition in the district court of said county asking for an injunction to restrain R. W. Wilson, county judge, and the county commissioners, from issuing certain bonds, and also to restrain said judge, commissioners, and Hanson Sons from the performance of a contract entered into between Jefferson county and the defendant Hanson Sons, Incorporated.

By plaintiff’s amended petition it is alleged that on the 15th day of August, 1914, the commissioners’ court of said county entered into a contract with Hanson Sons to furnish Jefferson county all the oyster shell it would require for a period of one year in the repairing and building its public roads, whether done by the county under contract with other parties or otherwise; that said contract by its terms contemplated the use of approximately 200,000 cubic yards more or less; that said county should take and. pay for approximately 150 ears of such shell per month, and such shell should be paid for when the county’s funds were available; that all shell delivered up to February 1, 1915, should be paid for not later than March 1, 1915; and that all shell delivered -between February 1, 1915, and the expiration of said contract, should be paid for within 30 days after such expiration. It is further alleged, upon information and belief, that although at the time the contract was made it was stated that payment was to be out of the funds of the current year, in which said payments were to be made, derived from taxation for roads and bridges, yet in truth and in fact at the time said contract was made it was well known to said contracting parties that said payments could not be made out of said current funds, for the reason that the road and bridge fund, which was the only current fund of said county out of which such payment could be made, was then largely overdrawn, and previous contracts and indebtedness for the period of time covered by said contract, and during which time said shell was to be furnished, greatly exceeded the amount of revenue that would be received by said county that could be applied to the road and bridge fund; and that it was well known that there were no funds on hand which could be lawfully used in paying for said shell. It is further alleged, from information and belief, that it was understood and agreed by and between the parties to said contract that script of the county would be issued in payment for sfaid shell, which would become a debt chargeable against the future resources of said county derived from taxation for subsequent years, or that the same should be paid for out of a special fund to be derived from an issue and sale of bonds subsequently to be made by said commissioners’ court, and for the reasons alleged said contract was void.

He further, however, alleges that, after said contract had been made, the said commissioners’ court employed lawyers to examine into its legality and report their conclusion to said court; that said lawyers, after making said examination, did report to said court that in their opinion said contract was void, and thereafter, on the 29th day of August, said court in special session declared said contract void, and therefore repudiated the same; that thereafter said court, after advertising for bids for such shell for road purposes, did, on the 12th day of November, 1914, make and enter into a contract in writing with Hanson Sons, Incorporated, whereby said county was obligated to purchase all the shell that Jefferson county should need for the period of one year for building or repairing roads in said county, whether the work was done by the county itself or by contract with other parties, and by said contract it was agreed that the county was to take a minimum of 30,000 cubic yards of shell under said contract. It is also alleged that the prices agreed to be paid Hanson Sons under said contract were higher than the figures given by another party for furnishing such shell. It is then alleged that, although the contract contains a clause to the effect that the minimum quantity' of shell to be delivered and paid for thereunder shall be 30,000 cubic yards, it was contemplated and agreed by and between said parties that not less than 200,000 cubic yards of shell were to be delivered and paid for under said contract. It is then alleged that this new contract of November 12, 1915, is void for the reason that at the time it was made all the parties to it knew that the payment for said shell could not be made out of the current funds of the year within which such shell was to be furnished, or out of any other fund in the hands or under the control of said court which could be lawfully used for such purpose, and that the road and bridge fund was largely overdrawn and greatly in debt, and therefore there were no moneys in this fund out of which the payment for said shell could be made; that it was the purpose and agreement of said parties to said contract that script of the county would be issued in payment of said shell and thereby create a debt against said county to be paid out of the future resources of said county to be derived by taxation during subsequent years, or that the same should be paid for out of a bond issue subsequently to be made; and therefore said contract was a fraud perpetrated upon the taxpayers of Jefferson county, and therefore its performance should be enjoined.

It is further alleged that, at the December term of said court for 1914, an order was passed authorizing the issuance of $200,000 road and bridge bonds for the purpose of repairing and constructing roads and bridges; but in fact and in truth said order was made to take care of said Hanson Sons’ contract, as was previously understood and agreed between the parties to said contract; that, after this suit was filed, said order for a bond issue was changed and called for an issue of $190,000 only, instead of $200,000 as first made; that it is the purpose of said commissioners’ court to have such bonds issued without a vote of the people of said county and contrary to the wishes of the citizens of said county; that the law under which said court proposes to issue said bonds is void; and that any bonds issued by virtue thereof would be illegally issued; and therefore said court and Hanson Sons, Incorporated, should be restrained from carrying out the said contract entered into between them, or any part thereof, and from issuing said contemplated bonds, or taking any further action toward the issuance of the same.

All the defendants excepted to the plaintiff’s petition because of misjoinder of parties and causes of action. Further answering, they admitted the making of the new contract on November 12, 1915, in lieu of the first, of date August 15, 1915, so as to come within the restrictions and requirements of the Constitution and laws of the state. They deny that by said contract any “debt,” as that term is used in article S, § 9, of the state Constitution, was created against Jefferson county, or that at the time said contract was made they contemplated making any such debt, or that they contemplated the issuance of bonds to meet the obligations created or which would be created by said contract of November 12, 1915; The county judge, Wilson, and the members of the commissioners’ court, say that it was their intention and purpose to pay for the shell contracted for, or so much thereof as would be taken during the continuation of said contract, out of the funds collected for the current year for roads and bridges, or such other funds which were or might come under their control which could be legally so used. They deny that there was any agreement or purpose on the part of any party to said contract to do or perform any of the unlawful acts charged in plaintiff’s petition, nor have they or any of them committed any of the wrongs so charged. Said county judge and commissioners say that, while it was not contemplated, at the time said contract was made, that any funds which might arise from the issuance and sale of the bonds mentioned in plaintiff’s petition should be used, still, in the event their requirements for shell under said contract should exceed the amount available from the taxes available, some portion of the proceeds of such sale of bonds may be used for that purpose. They also deny that they were able to purchase shell at a less figure than, they contracted to pay to Ilanson Sons. They further say that the order entered by the commissioners’ court of Jefferson county for the issuance and sale of $190,000 bonds was and is in all respects legal and valid and within the power and authority of said court to make; that an order, legal in all respects, was made providing for the levy and collection: of a sufficient sum by taxation to pay the interest and create a sinking fund upon said bond issue, at the time said order for bonds was made.

We have gathered the foregoing statement from 73 typewritten pages of pleadings and a voluminous record, and have endeavored thereby to fairly present all the issues involved, and deem it sufficient for that purpose.

The trial court reserved his decision on demurrers and exceptions based upon the mis-joinder of parties and causes of action until the ease was fully heard, and proceeded to the trial of the case in all its aspects, and after a full hearing rendered .the following judgment;

“And it appearing to the court that plaintiff is not entitled to the injunction prayed for by him against any of the parties defendant or any of the relief sought by him, because, first, the exceptions of defendants on the ground of mis-joinder of parties and causes of action should bo sustained, and, second, because under the law and the evidence plaintiff has wholly failed to make out any case entitling him to an injunction restraining defendants from proceeding with and carrying into effect the contract between Jefferson county, through its commissioners’ court and county judge and Hanson Sons, Incorporated, or any other relief prayed for by him. and has wholly failed to make out any case entitling him to an injunction restraining the county judge and county commissioners of Jefferson county from issuing the bonds described in pleadings herein, it is accordingly ordered, adjudged, and decreed by the court that the temporary restraining order entered herein on December 31, 1914, be and the same is hereby in. all things dissolved and set aside, that plaintiff’s prayer for an injunction herein be with respect to each and all of the parties defendant to this suit in all things denied and refused, that plaintiff take nothing by his suit against the defendants or any of them, and that defendants and each of them go hence without day and recover of plaintiff all their costs in this behalf incurred, for which let execution issue.”

From such judgment, J. J. Broussard has appealed.

The first assignment of appellant is as follows:

“The court erred in sustaining the defendants’ demurrers and exceptions to plaintiff’s petition based upon a misjoinder of parties and causes of action.”

Hanson Sons, Incorporated, was and is only concerned with the contract for shell described in plaintiff’s petition, and is not shown by the petition to be a party to the proposed bond issue sought to be restrained,nor is it shown that said party could by any possibility be connected with such bond issue, which was exclusively within the jurisdiction of the commissioners’ court of Jefferson county. It appears from plaintiff’s petition that plaintiff’s cause of action, if any, touching the shell contract, is “against all of the defendants,” including Hanson Sons, but that his cause of action, if any, relating to the bond issue, is exclusively “against said commissioners’ court,” and that Hanson Sons is neither a necessary nor proper party to any cause of action which the plaintiff may have relating to the bond issue, and therefore Hanson Sons, Incorporated, was misjoined with the other defendants in this cause, and the trial court did not err in so holding.

But we may also add that, if the action of the trial court in sustaining said demurrer, and the recital of that fact in the judgment, was error, still it was harmless error, as the entire record discloses the fact that the case was tried just as though no demurrer had been sustained and a judgment was finally entered, after a full hearing, denying the injunction prayed for. It follows that, if there was no error in the judgment rendered upon the merits after full hearing, the order of the court sustaining the exceptions as to misjoinder of parties, etc., if error, would be harmless. We therefore overrule the first assignment.

The remaining assignments may be grouped, and their substance stated as follows:

(1) That the trial court erred in refusing to enjoin the carrying out of the contract made and entered into by and between the commissioners’ court of Jefferson county and Hanson Sons, Incorporated, of date November 12,1914, because said contract created a debt against said county without first making provision for its payment, in violation of article 8, § 9, of the Constitution of the state of Texas, and because it was understood and agreed, at the time said contract was made, that, if the shell contracted for could not be paid for out of other funds under the control of said court, the court would thereafter order the issuance and sale of bonds of said county to pay for said shell, and therefore said contract was and is illegal and void.

(2)' That the court erred in refusing to enjoin the issuance and sale of said bonds, because the order for their issuance was for the purpose of applying a part, at least, of the proceeds to arise from this sale, to the payment of the debt which was to accrue under the alleged unlawful contract.

If, in a disposition of the first part of these assignments as grouped, we should hold that the contract in question was one which said commissioners’ court had power and authority to make, the second part thereof— that is, the complaint of the issuance of said bonds — cannot be sustained, as the law authorizes the issuance of bonds, without a vote of the people, for the purpose of raising a fund for the repairing and building of roads and bridges, provided such issue shall not exceed the limit of the county’s indebtedness fixed by the Constitution, and the undisputed evidence shows that of the 15 cents on the $100 valuation of the taxable property allowed to be levied and collected annually for repairing and building roads and bridges, only 12.5 per cent, of such allowance had been levied for such purposes for 1915, and that there remained 2.95 per cent, thereof which said court had the right to and which it did levy to pay interest and create a sinking fund upon said proposed bond issue of $190,000, and that said 2.95 per cent, of said allowance was sufficient for that purpose.

(3) By the contract complained of, of date November 12, 1914, the county of Jefferson, through its commissioners’ court, agreed to take, and Hanson Sons, Incorporated, agreed to sell and deliver for road repairing and building, at places and prices named, all the shell of the character described in the contract, for the period of one year after the commencement of deliveries; the county agreeing to take and pay for a minimum quantity of 30,000 cubic yards, and the' minimum price named being 64 cents per-cubic yard. The county was to give notice.from time to time of what its requirements would be. Hanson Sons were to have 60 days from the date of the contract within which to begin deliveries. Payments were to be made by the county at regular intervals, either in script or cash, at its option.

The testimony of County Treasurer Williams shows: That the transfers from the general fund, the jury fund, the contingent fund, and the depository interest fund of $52,978.86 in 1914 were wholly out of the taxes of 1913, the last of those transfers having been made on August 11, 1914, and no taxes for the year 1914 being collected until after November 1, 1914, the bulk of the taxes for 1914 not being paid till January, 1915. That no. part of the taxes of 1914 went to take care of the indebtedness of 1913; nor did any part of the 1914 taxes go to pay the debts of 1913. That the assessed valuation of all property in Jefferson county for 1914 was about $50,700,000, and the road and bridge fund taxes therefrom for 1914 would be something over $76,000. Of this sum from the road and bridge fund there had come into his hands as treasurer when he testified (January 22, 1915) $25,969.63. This would leave over $50,000 of the total road and bridge fund of 1914 not then collected, or at least not turned over to the treasurer.

County Judge Wilson testified: That he did not remember, when the first contract with Hanson Sons, Incorporated (that of August 15, 1914), was entered into whether there was “any special discussion as to where the money was to come from” to pay for the shell called for by the contract. “We .always managed to take care of our liabilities. We did not expect to use 200,000 cubic yards; we expected to get the money to pay for 60,000 cubic yards out of the taxes levied out of the general fund like we always have done. * * * We expected to take care of it; pay for it out of the funds of the county. We expected to pay for it out of the road and bridge fund, the 15 cents levy for maintenance. * * * I thought all the time that we had enough to take care of the contract if we did not reduce the 2 per cent, .sinking fund. We generally use from 25,000 to 30,000 cubic yards of shell per year for repairs and different things.”

Commissioner Peck testified: The county will have enough money out of the road and bridge fund to pay Hanson Sons, Incorporated, for the shell, if the shell is left on the hank, but without transfer from other funds not enough to lay the shell down on the road. “The intention of the commissioners’ court, when they made this contract with Hanson Sons, was that the shell purchased should be paid for out of the available funds arising out of taxation during the year of the •contract.” That, in his testimony that the current expenses in past years had exceeded the amount of the tax levied for the road and bridge fund, he included all expenses, for grading and making new roads as well as for repairs, all expenses connected with the county roads. “I believe that during the next year if we did not use shell on new roads, but used it only for maintenance of the old roads, we could stay within the limit of $75,000. If we found it necessary to cut out the new work, we would certainly do so. If we are enjoined from making further transfers into the road and bridge fund, we would cut our cloth accordingly. We would still take care of our obligations with Hanson Sons, throw down our work, put off construction work, and take the amount of money as far as it went and repair the roads as best we could. The taxes available for taking care of this contract will be the taxes of 1914 and 1915. This contract does not terminate until somewhere about the middle of January of next year, and the final payments are not to be made until 30 days after that date.”

P. E. Hanson, manager of Hanson Sons, Incorporated, testified: That he made no investigation, when entering into the contract with Jefferson county, as to where the money was coming from to pay for the shell; merely understood the county would have the available funds. “I didn’t have any reason to doubt, when I made this contract, that when it became due I would be paid out of some available fund of Jefferson county. There was nothing said, at the time of the making of either of these contracts, as to the source from which the money was to come. I supposed I was dealing with a court that knew what they were doing. I had no reason to doübt that the court intended to pay us out of some available fund.” He had no understanding either on August 15, 1914, when the first contract was made, nor on November 12, 1914, the date of the second contract, that the commissioners’ court were to issue road and bridge bonds and pay for the shell out of the proceeds of these bonds.

Oommissioner Johnson testified: Jefferson county has about 125 miles of shell road. The county must have shell every year to keep these roads up. It is one of the .common expenses of the county.

The foregoing is practically all the material testimony with reference to said contract, and we conclude therefrom that the parties to the contract intended that the shell furnished to the county should be paid for out of the current revenue for the year, and that there was reasonable ground to believe that such current revenue would be sufficient for that purpose. The fact that the levy was made on August 10th, and the first contract entered into on August 15th, five days later, we think is a significant circumstance. This contract for supplies must have been one of the first entered into after the court had provided for its current revenues. The court is expressly authorized to purchase all material necessary in “the construction of roads.” It does not seem to us important that this contract is for the purchase of shell “in building or repairing roads.” It is evident that the special acts of the Legislature relating to Jefferson county were intended to give ample authority to the commissioners’ court in road matters; that there was no attempt to create a charge against future revenues, and, judging from the past year and from the rates levied for the current year, it was reasonably contemplated that there would he sufficient available money out of the current revenues to pay for this shell; that the contract fixed the rate for each cubic yard of shell to be paid for by the county; and that no debt was created until the quantity of shell necessary to meet the requirements of the county had been ascertained, as it would be from time to time by the county during the year and the county within the minimum at least of 30,000 cubic yards has the power to limit the quantity of shell to be taken and thus to bring the expense within its current revenue. The county is to “give notice from time to time of what its requirements will be.” The contract further provides:

“Payments hereunder shall be made by second party to first party at regular monthly intervals, either in script or cash at the county’s option.”

The instant case is unlike Jefferson Iron Co. v. Hart, 18 Tex. Civ. App. 525, 45 S. W. 321. There the suit was to enjoin the collection of certain taxes on the ground that the levy was unnecessary for the purpose for which it was made and was made with the intent of transferring the levy so made to another fund already swelled to its full constitutional limit.

We further conclude that the contract between Jefferson county and Hanson Sons, Incorporated, did not create a “debt” within the meaning of the Constitution, for which provision should be made when it is created or incurred, but belongs to that class of obligations in good faith intended to be lawfully payable out of either the current revenue for the year of the contract, or some other fund within the immediate control of the commissioners’ court. By article 1440, Revised Civil Statutes of 1911, it is provided that the commissioners’ court shall have power by an order to that effect to transfer the money in hand from one fund to another, as in its judgment is deemed necessary and proper, provided that the funds collected under the provision of article 1438, for jury fees, money collected from sale of estrays, and all occupation taxes, shall be first applied to the payment of the three classes of claims named in article 1433, and shall never be diverted from the payment of such class of claims, unless there is an excess of such funds. This article clearly authorizes such transfers of such of the county’s funds to the road and bridge fund as is shown to have been made by the commissioners’ court in this case. Por authorities on the case as a whole, see Marshall v. Simmons, 159 S. W. 89; Douglass v. Myrick, 159 S. W. 422; Bodenheim v. Lightfoot, 103 Tex. 639, 132 S. W. 468; McNeal v. City of Waco, 89 Tex. at page 88, 33 S. W. 322; City of Tyler v. Jester, 97 Tex. 344, 78 S. W. 1058; City of Terrell v. Dessaint, 71 Tex. 770, 9 S. W. 593; City of Cleburne v. Cleburne Waterworks, 14 Tex. Civ. App. 229, 37 S. W. 655; Corpus Christi v. Woessner, 58 Tex. 467; Sandmeyer v. Harris, 7 Tex. Civ. App. 515, 27 S. W. 284; Overall v. Madisonville, 102 S. W. 278, 31 Ky. Law Rep. 278, 12 L. R. A. (N. S.) 433.

Whether or not said contract was an improvident contract, disadvantageous to the county and advantageous to Hanson Sons, Incorporated, in the absence of proof of actual fraud, is not a question for this court to determine. The Legislature has seen proper to confer upon the commissioners’ court the power and authority to make contracts for the repairing and construction of roads within its county, and, so long as said courts make contracts within* the restrictions of the Constitution and under the authority of law, it is not for the courts to substitute their judgment for that of the commissioners’ court as to the wisdom of such contracts.

After a careful review of the record, briefs of all parties, and a great number of authorities, we have reached the conclusion that the trial court did not err in refusing the injunction prayed for, and therefore the judgment of the lower court is in all things affirmed.

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

      ®=aPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, 0. J.

text:
    WOLNITZEK et al. v. LEWIS.
    (No. 7052.)

    (Court of Civil Appeals of Texas. Galveston.
    Feb. 10, 1916.
    Rehearing Denied March 2, 1916.)
    1. Venue @=>72 — Change oe Venue — Bub-den oe Pbooe.
    Vernon’s Say les’ Aim. Civ. St. 1914, art. 1913, provides, as to applications for a change of venue on the ground that there is a combination against the moving ■ party instigated by influential persons by reason of which he cannot expect a fair and impartial trial, that the application shall be granted unless the credibility of the persons making it or their means of knowledge or the truth of the facts set out in the application are attacked by the affidavit, when the issue shall be tried by the judge and the application granted or refused as the law and the facts shall warrant. Held, that where, on an application on the ground stated, an affidavit was filed denying the facts stated in the motion and attacking the means of knowledge of the persons who verified the motion by their supporting affidavits, the burden was upon the moving parties to prove the facts upon which the motion was based.
    [Ed. Note. — Por other cases, see Venue, Cent. Dig. § 127; Dec. Dig. @=>72.]
    2. Triad @=>25 — Right to Open and Close-Admissions.
    Rule 31 for district and county courts (142 S. W. xx), provides that plaintiff shall have the right to open and conclude, unless the burden of proof rests upon defendant or unless defendant shall before trial admit that plaintiff has a good cause of action except so far as it may be defeated by the facts of the answer constituting a good defense. In a proceeding to probate a will, contestants alleged that it was obtained by undue influence and had been revoked, and also offered for probate a later will, which the proponent of the first will attacked for want of testamentary capacity. The contestants filed an admission that the proponent had a good cause of action except as it might be defeated in whole or in part by the facts pleaded by them constituting a good defense, and moved for the right to open and close. Held, that the motion was properly denied, since defendants must admit every fact alleged in the petition which it is necessary for plaintiff to establish in the first instance to entitle him to recover, and, while defendants’ admission was in the exact language of the rule, it was manifest that they did not intend to admit that the will offered by the proponent was the last or unrevoked will of the testator, which would have left them no ground for contest except that of undue influence, as to which there was no evidence.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 44-75; Dec. Dig. <⅜=25.]
    3. Appeal and Error <©=742 — Briefs—Assignment of Errors — Statement.
    An assignment of error, not followed by a statement from the record as required by the rules, was not entitled to consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <©=5742.]
    4. Witnesses <©=78 — Competency — Evidence.
    There was no error in permitting a judgment of conviction for forgery to be offered in evidence to prevent a witness from testifying, where, upon presentation to the,court of a pardon, the witness was permitted to testify and neither the judgment nor the pardon was read to the jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. <©=>78.]
    5. Judges <©=45 — Disqualification—Relationship to Party or Person Interested.
    A judge was not disqualified to preside at the trial of a proceeding to have a person adjudged of unsound mind, where, though the proceeding was instigated by his father-in-law, it was not conducted in the father-in-law’s name unless the father-in-law had a direct pecuniary interest in the result of the trial.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 208-212; Dec. Dig. <©=45.]
    6. Judges <©=45-r-DisQUALiFi0ATi0N — Relationship to Party or Person Interested.
    A proceeding to have W. adjudged a person of unsound mind was instigated by L., but not conducted in his name. L. was named as independent executor in a will previously executed by W., and thereby was allowed a large compensation for performing the duties of executor. Several attempts had been made by interested parties to induce W. to make a new will. Held, that L.’s pecuniary interest in the result of the trial was too indirect, contingent, and uncertain to disqualify his son-in-law from presiding at the trial of such proceeding.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 208⅛12; Dec. Dig. <©=45.]
    7. Appeal and Error <©=1051 — Harmless Error — Admission op Evidence.
    The admission of hearsay evidence was harmless, where, in view of the great mass of testimony upon the same issue, it was not probable that it influenced the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <©= 1051.]
    8. Appeal and Error <©=742 — Assignments op Error — Statements.
    Assignments of error complaining of the admission of a paper or letter in evidence were insufficient, whore there was no statement showing what the paper or letter contained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. ©=742.]
    9. Appeal and Error <©=1170 — Burden op Showing Prejudice prom Error.
    Appellate courts are not authorized to reverse for immaterial errors, and an assignment not pointing out an error which probably caused injury cannot be sustained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. <©=1170.]
    10. Trial <©=296 — Instructions.
    In a proceeding in which two wills were propounded for probate, one of which was executed after the testator had been adjudged a person of unsound mind, where the court charged that the jury should determine from the preponderance of the evidence whether the testator at the time he executed such will was of unsound mind or of testamentary capacity and correctly instructed them as to the mental capacity required to make a valid will, the failure of the court to define the term “lucid interval” was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. <©= 296.]
    11. Trial <©=251 — Instructions—Conformity to Issues.
    In a proceeding to probate a will, the refusal of an instruction as to the mental capacity of the testator at the time another will, not offered for probate and the validity of which was not in issue, was executed, was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. <©=251.]
    12. Wills <©=330 — Probate Proceedings— Instructions — Mental Capacity.
    In a proceeding to probate a will, an instruction that ordinarily less capacity was required to enable a testátor to make a will than for the same person to make a contract or to engage in intricate and complex business matters, but whether the testator had sufficient capacity to make a will was a question of fact for the jury, was not erroneous as requiring a higher degree of mental capacity than is required by law.
    [Ed. Note. — For other eases, see Wills, Cent. Dig. §§ 779-781; Dec. Dig. <©=330.]
    13. Appeal and Error <©=742 — Assignments op Error — Statement.
    An assignment of error, complaining of the refusal of a special charge not set out in the statement following the assignment, will not be considered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. ©=742.]
    14. Appeal and Error <©=1060 — Harmless Error — Argument op Counsel.
    Even though an attorney used improper language in his address to the jury, it was not ground for reversing the judgment, where it was not of such a character as to probably affect the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <©=1060.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Proceeding by J. B. Lewis to probate a will contested by Oscar Wolnitzek and others, who offered a different will for probate.

      From a judgment probating the will offered by Lewis, the contestants appeal.
    Affirmed.
    See, also, 162 S. W. 963.
    Atkinson & Atkinson, of Houston, Johnson, Matthaei & Thompson, of Bellville, and Han-nay & Hannay, of Hempstead, for appellants. Mathis & Teague, of Rrenham, and Lane, Wolters & Storey, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   PLEASANTS, 0. J.

This appeal is from a judgment of the district court of Austin county admitting to probate the joint will of Paul and Franciska Wolnitzek, deceased, executed on April 6, 1903. The will was offered for probate by appellee, J. B. Lewis, the executor therein named, in the county court of Austin .county on January 4, 1912. On February 5, 1912, the appellants, Oscar Wolnitzek and Alma Wolnitzek, offered for probate a will of said Paul Wolnitzek executed on July 7, 1910, and contested the probate of the will offered by appellee, on the ground that it was obtained by undue influence and had been revoked by the testator. In answer to the application of appellants to probate the will of July 7, 1910, appellee pleaded that the deceased, Paul Wolnitzek, was of unsound mind at the time and fox-two years or more before the date of the execution of the will offered for probate by contestants, and was on January 21, 1910, adjudged a person of unsound mind by the county court of Austin county upon the verdict of a jury in said court on a trial upon a complaint duly filed charging him with lunacy, and appellee was appointed guardian of his person and estate. Appellee further resisted the probate of the will offered by contestants on the ground that the will of April 6, 1903, being a joint will executed by agreement between said Paul and Franciska Wol-nitzek, and the said Paul having retained possession of the joint property after the death of Franciska, could not revoke or change the terms of said joint will. He denied the allegations of appellants that the will offered was obtained by undue influence. The pleadings in the county court are somewhat voluminous, but the foregoing statement is believed to be the substance of the material issues presented. The trial in said court resulted in a judgment probating the will offered by appellee. Upon appeal to the district court and a trial by jury, a like judgment was rendered. There was no material change in the pleadings after the cause reached the district court. The special issues submitted to the jury and their findings thereon are as follows:

“Question No. 1. Do you find from the evidence that Paul and Franciska Wolnitzek executed the will hearing date April 6, 1003, and offered for probate by petitioner J. B. Lewis? You will answer this question, ‘Yes,’ or, ‘No.’
“We. the jury, answer question No. 1, ‘Yes.’
“Question No. 2. If you have answered the foregoing question, ‘Yes,’ then did Paul and Franciska Wolnitzek, in executing the will aforesaid, do so under an agreement to devise their property as set out in said will? If you find that they did make such agreement, then you will answer this question, ‘Yes.’ If you find they did not make such agreement, you will answer, ‘No.’
“We, the jury, answer question No. 2, ‘Yes.’
“(a) If you have answered the foregoing question No. 2, ‘Yes,’ then you will answer this question: At the time of the execution of said joint will by Paul and Franciska Wolnitzek, were they ‘unduly influenced,’ as that term is above defined, by J. B. Lewis and O. G-. Kreuger, or either of them, to make said agi-eement to devise their property as set out in said will? You will answer this question, ‘Yes,’ or, ‘No.’
“We, the jury, answer question No. 2a, ‘No.’
“Question No. 3. Did Paul Wolnitzek execute the will bearing date July 7, 3910? You will answer this question, ‘Yes,’ or, ‘No.’
“We, the jury, answer question No. 3, ‘Yes.’
“Question No. 4. If you have answered the foregoing question, ‘Yes,’ then you will answer the following-: At the time of the execution of said will, did said Paul Wolnitzek have sufficient mental capacity to know and to understand the nature of the transaction and to execute said will dated July 7, 1910? You will answer this question, ‘Yes,’ or, ‘No.’
“We, the jury, answer question No. 4, ‘No.’ ”

Appellants’ first assignment of error complains of the ruling of the court refusing their motion for a change of venue, on the ground, that there was such a combination of influential persons in Austin county against them that they could not expect a fair and impartial trial in said county.

The motion was verified as required by the statute. Appellee filed an affidavit denying the facts stated in the motion and attacking the means of knowledge of the persons who verified the motion by their supporting affidavits. Upon the issue thus made, the burden was upon appellants to prove the facts upon which the motion was based. Vernon’s Sayles’ Civil Statutes, art. 1913; Railway Co. v. Bernard, 57 S. W. 686; Trimble v. Burroughs, 95 S. W. 614.

We hardly think that the evidence upon this issue would have authorized the trial court to grant the motion; it certainly was not of such probative force as to compel a change of venue, and the judgment of the court refusing the motion cannot be disturbed. Freeman v. Cleary, 136 S. W. 521.

The second assignment of error complains of the refusal of the court to grant appellants’ motion to permit them to open and close the ease in introducing the evidence and in the argument to the jury. This motion, which was made under rule 31 for district and county courts, alleges that:

Appellants “admit that plaintiff J. B. Lewis has a good cause of action as set forth in his petition, except so far as it may be defeated in whole or in part by the facts of the answer ox-pleadings of these contestants constituting a good defense which may be established on the trial.”

Buie 31 (142 S. W. xx) is as follows:

“The plaintiff shall have the right to open and conclude, both in adducing his evidence and in the argument, unless the burden of proof of the whole case under the pleadings rests upon the defendant, or unless the defendant, or all of the defendants, if there should be more than one, shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial; which admission shall be entered of record, when the defendant, or the defendants, if more than one, shall have the right to open and conclude in adducing the evidence and in the argument of the cause.”

The admission in appellants’ motion is in the exact language of the rule, which, as said by our Supreme Court in the case of Smith v. Banks, 74 Tex. 545, 12 S. W. 222, “must he construed to mean that the defendant admits every fact alleged in the petition which it is necessary for the plaintiff to establish in the first instance to enable him to recover.” We think it manifest that appellants did not intend to make any such admission. One of the facts alleged by appellee, and which he was required to prove in order to obtain the probate of the will offered by him, was that said will was the last or unrevoked will of the testator. If appellants admitted this to be true, they could not thereafter deny that fact, nor be heard to allege and prove that the testator made a subsequent will revoking the will offered by appellee. Appellants could not under rule 31 claim the right to open and close the case without admitting all the facts necessary to be proven by appellee to obtain the probate of the will offered by him, and, as we have before said, they did not make such admission because their admission of the appellee’s cause of action was conditional upon appellants’ failure to defeat it by the facts alleged in their answer, and the answer avers that the testator made a will subsequent to the one offered by appellee, which amounts to a denial of the fact that the will offered by appellee was the last will of the testator. We think it clear that an admission of this kind did not entitle the appellants to open and close the ease. Meade v. Logan, 110 S. W. 189.

It would be unfair to appellants to hold that they intended to admit in their motion that the will offered by appellee had not been revoked by the testator, because, if they made such admission, the only ground of contest left for them is that the will offered by ap-pellee was obtained by undue influence, and the evidence does not raise this issue.

There is no merit in assignment No. 3, which complains of the ruling of the court permitting the appellee to offer in evidence a judgment convicting Thomas Wolnitzek, a witness for appellants, of forgery. This assignment is not entitled to consideration because it is not followed by a statement from the record as required by the rules. It appears, however, from the qualification made by the trial judge to the bill of exceptions referred to in the assignment that:

“The judgment of conviction was offered the court to prevent the witness from testifying. The court was about to hold the witness incompetent, when contestants offered a pardon, by the Governor, of the witness. The court then held him competent to testify, and neither judgment nor pardon were read to the jury.”

The presentation of the judgment to the court for the purpose stated was clearly permissible, and, if the assignment was entitled to consideration, it could not be sustained.'

The testimony, the exclusion of which is complained of by the fourth assignment of error, if at all material and relevant could not possibly have affected the verdict of the jury. There is no sufficient statement under the assignment to entitle it to consideration; but if it had been followed by a proper statement, for the reasons indicated, it could not be sustained.

The fifth assignment of error complains of the ruling of the court admitting in evidence the judgment of the county court of Austin county adjudging the testator, Paul Wolnitzek, a person of unsound mind. The objection to the admission in evidence of this judgment was that it was void because the county judge who tried the lunacy case in which the judgment was rendered was the son-in-law of appellee J. B. Lewis, who made the complaint charging said Paul Wolnitzek with lunacy.

There is nothing in the statement following the assignment which shows that appellee Lewis had any pecuniary interest in the determination of the question of whether or not Paul Wolnitzek was a lunatic at the time he made this complaint and the trial was had thereon. While he instigated the proceedings, they were not conducted in his name, and in order to disqualify the judge, who was his son-in-law, from presiding at the trial, it must appear that he had a direct pecuniary interest in the result of the trial. This does not appear from the statement under the assignment. If we go to appellants’ argument and supplement the statement with all the facts bearing upon the question which the record contains, the only pecuniary interest appellee could have had in the result of the lunacy proceedings arose from the fact that he was the independent executor named in the will executed by Wolnitzek in 1903, and by the terms of said will was allowed a large compensation for performing the duties of executor. It was shown that several attempts had been made by interested parties to induce Wolnitzek to make a new will, and if he should be adjudged a lunatic the validity of any will he might thereafter make would probably be invalid and would make more secure appellee’s prospects of receiving the compensation allowed him in the then existing will. We are of opinion that, if the statement under the assignment had contained all of the facts above stated, it could not be held that such a pecuniary interest in the lunacy proceedings was shown in appellee as to disqualify his son-in-law from presiding at the trial of the case. The pecuniary interest of appellee in the result of the trial was so indirect, contingent, and uncertain that it did not disqualify the judge.

The sixth assignment of error is without merit and is overruled without discussion.

If the testimony complained of by the seventh assignment of error was inadmissible because hearsay, in view of the great mass of testimony upon the same issue it is not probable that the admission of the statements objected to could have influenced the jury, and its admission, if error, was harmless.

The eighth and ninth assignments are insufficient, in that there is no statement showing what the paper or letter objected to contained, and, in the absence of such statement, we cannot say whether the admission of the fetter or paper in evidence could have injured the appellants. Appellate courts are not authorized to reverse a case for immaterial errors, and an assignment which does not point out an error which probably caused injury to the appellant cannot be sustained.

The tenth assignment is without merit and is overruled without discussion:

The eleventh assignment of error is not entitled to consideration because not followed by any statement from the record. The assignment complains of a charge given by the court, and we are not informed, except by the statement in the assignment, what the charge contained. It has been so often held that an assignment which is not followed by a statement from the record, as required by rule 31 for Courts of Civil Appeals, is not entitled to consideration, that a citation of authorities is unnecessary.

The court did not err in refusing to give the charge requested by appellants defining the term “lucid interval.” The charge given the jury instructed them that they should determine from the preponderance of the evidence whether the deceased, Paul Wolnitzek, at the time he executed the will offered by appellants, was of unsound mind and testamentary capacity, and correctly instructed them as to the mental capacity required to make a valid will. With these instructions before them, it was entirely unnecessary for the court to give a charge defining the term “lucid interval,” and the twelfth assignment, which complains of the refusal of the court to give such charge, must be overruled.

The refusal to give the requested charge mentioned in the thirteenth assignment was not error. The will mentioned in said charge was not offered for probate, and its validity was not an issue in the case. If it was material to any issue in this case to submit to the jury the question of Paul Wolnitzek’s mental capacity at the time said alleged will was executed, such materiality is not shown by the statement submitted under the assignment.

There is no merit in the fourteenth assignment of error. The charge given by the court is not subject to the objection made in this assignment that, in instructing the jury as to the capacity necessary to enable one to make a valid will, it required a higher degree of mental capacity than is required by law. The charge complained of is as follows:

“Ordinarily, less capacity is required to enable a testator to make a will than for the same person to make a contract or to engage in intricate and complex business matters, but whether the testator in this case, P. P. Wolnitzek, had sufficient capacity to make the will prepared by Father Skocek, is a question of fact for the jury.”

This charge is certainly not subject to the objection above stated.

The charge requested by appellants upon the question of undue influence was properly refused for two reasons: First, because the issue of undue influence was not raised by the evidence; and, second, because if the issue had been raised the requested charge was inaccurate in its statement of the law applicable to such issue. The fifteenth assignment, which complains of the refusal of the court to give the charge above referred to, is overruled. i

The special charge, the refusal of which is complained of by the sixteenth assignment, is not set out in the statement following the assignment, and for this reason we are not called upon to pass on the assignment. We are of opinion, however, that the letters set out in the statement under the assignment, and which appellants claim were sufficient to show a revocation of the will by Franciska Wolnitzek, do not raise that issue.

The seventeenth assignment, which complains of language used by attorney for appellee in his address to the jury, cannot be sustained. If it be conceded that the language was improper, it was not of such character as had any probable effect upon the verdict of the jury, and therefore its use is not sufficient ground for reversing the judgment.

The verdict of the jury is amply sustained by the evidence, and the eighteenth assignment, which assails'the verdict on the ground that it is against the preponderance of the evidence, cannot be sustained.

We are of opinion that the record discloses no error which would authorize a reversal of the judgment, and that it must be affirmed.

Affirmed.
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