author: CONNER, C. J.

text:
    RHOADS v. HARRIS et al.
    (No. 8566.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 31, 1917.)
    1.Partnership <g=»130 — Covenants by Partner.
    Where one, holding legal title to land exchanged, covenanted to pay and discharge notes secured by a vendor’s lien on the land and took title to tie land received in the exchange in the name of a third person, who was interested in the transaction, the agreement to discharge the notes was binding upon the third person whether made as agent or partner; the basic theory upon which a partner is bound being that the acting partner is his agent.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 206-211, 213, 240.]
    2. Vendor and Purchaser <g=^284 — Dien op Vendor — Foreclosure—Issues.
    In a suit by the holder of such notes to foreclose the lien, there was no prejudicial error in failing to submit the issue of partnership between the covenantor and the third porson or in peremptorily instructing that the covenantee was entitled to a judgment jointly and severally against the covenantor and the third person.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 796-799.]
    3. Appeal and Error ⅞⅜=>879 — Review.
    In a suit on vendor’s lien notes, as affecting defendant who made cross-claim against defendant-appellant, but who recovered no judgment and has not appealed, errors assigned need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3581-3583.]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Suit by B. R. Harris against A. H. Allen and others in which defendant B. B. Griffin filed a cross-plea against defendants J. W. Allen and J. A. Rhoads, and defendant J. W. Allen prayed cross-claim against defendant J. A. Rhoads. From a judgment for plaintiff as against named defendant for amount due on vendor’s lien notes, and as against the other defendants except A. Q. Mustain, who was discharged, enforcing the vendor’s lien, and that defendant B. B. Griffin on his cross-plea recover of defendants J. W. Allen and J. A. Rhoads the sum adjudged in plaintiff’s favor and that J. W. Allen take nothing on his cross-claim against J. A. Rhoads, defendant J. A. Rhoads alone appeals.
    Affirmed.
    Sullivan & Hill and Buther Hoffman, all of Denton, for appellant. T. W. Dunn, of Ft. Worth, for appellees.
   CONNER, C. J.

So far as necessary to state, this suit was instituted by B. R. Harris against A. H. Allen, J. W. Allen, B. B. Griffin, A. Q. Mustain, and J. A. Rhoads, to recover the amount of principal, interest, and attorneys’ fees due upon a series of five vendor’s lien notes, each in the principal sum of $100, all of which notes were due and all of which had been executed by A. I-I. Allen, and secured by a vendor’s lien on a lot known as the “hotel property” and- described in plaintiff’s petition. It appeared in the development of the case that J. W. Allen subsequently acquired the legal title to the hotel property and later exchanged it to B. B. Griffin for certain lands owned by Griffin in- county, Tex.; and that in the exchange J. W. Allen assumed the payment of the vendor’s lien notes declared upon. Griffin and J. W. Allen specially pleaded that at the time of said exchange the .defendant J. A. Rhoads was jointly interested in the hotel property and a partner in the transac-tión of the exchange, and that after said exchange J. W. Allen paid to the said defendant J. A. Rhoads said notes, receiving a promise at the time of their release; it being alleged that at the time J. A. Rhoads owned and possessed the notes. Allen therefore prayed that he might recover of the said defendant Rhoads such sum, if any, as the defendant Griffin, under his cross-plea, should recover of him (J. W. Allen). There appears to have been no real controversy between the plaintiff Harris and the defendants, and judgment was finally rendered in plaintiff’s favor as against A. H. Allen for the amount due upon the notes, and as against all of the defendants save A. Q. Mustain, who was discharged, enforcing the vendor’s lien. It was further adjudged that the defendant Griffin on his cross-plea recover of the defendants J. W. Allen and J. A. Rhoads the sum adjudged in the plaintiff’s favor. It was further adjudged that J. W. Allen take nothing on his cross-claim against J. A. Rhoads, and the defendant J. A. Rhoads alone appeals.

As will be seen from our statement of the case, the controversy as now presented to us is only between B. B. Griffin and J. A. Rhoads. The court peremptorily instructed the jury that Griffin was entitled to a judgment jointly and severally against both J. W. Allen and J. A. Rhoads for the amount of the judgment which the jury should find for Harris, and appellant’s only assignments of error are to the action of the court in refusing to submit the issue of partnership between him and the defendant J. W. Allen. There is no dispute in the evidence of the fact alleged by Griffin in his cross-plea that J. W. Allen assumed the payment of the notes declared upon by the plaintiff. He alleged that Rhoads and Allen were partners in the ownership of the hotel property, and as such sought to hold Rhoads as such partner, and the court’s charge, of course, may be construed as an assumption that both allegations had been established by the undisputed evidence, and appellant’s insistence is that his evidence tended to refute the allegation of partnership.

We will not set out and analyze the testimony of appellant on the issue of partnership, inasmuch as we have concluded that the undisputed evidence shows that appellant was liable to Griffin, irrespective of whether Allen and Rhoads were technically partners in the exchange of lands that had been made between J. W. Allen and B. B. Griffin, and such doubtless was the view of the trial court. Appellant admitted that, while the title to the hotel property was in J. W. Allen, nevertheless he knew of that fact and was interested in it and consented to the exchange. The contention was that Allen was but his agent in the exchange; that the agreement between him and Allen was to the effect that Allen should receive a part of the profits as commissions only. It is undisputed, also, that in the exchange Allen took title to the Griffin lands in the name of J. A. Rhoads; that later Allen sold the Griffin lands to a party in Et. Worth, receiving therefor a net sum of something like $2,000, of which appellant Rhoads received a part as his share.

This all being true, and indisputably so, the issue of whether Allen and Rhoads were partners in the hotel property is, as we think, immaterial, for Allen’s agreement to pay off and discharge the notes upon which the plaintiff’s claim was predicated, whether made by Allen as a partner or as an agent of Rhoads, is binding on Rhoads. This agreement to pay the plaintiff’s notes was a part of the consideration of the Griffin exchange, and appellant therefore cannot be permitted to receive and retain, as he has done, the benefits of the trade made by Allen and at the same time be relieved of the covenant of Allen, whether made as appellant’s agent or partner. Indeed, the basic theory upon which the act or agreement of one partner binds that of another partner is on the ground that in law the acting partner is the agent of his fellow partner. As to the appellee Griffin, at least, therefore, there was no prejudicial error in refusing to submit the issue of partnership and in giving the peremptory instruction.

No judgment having been awarded J. W. Allen against the appellant, and Allen not having appealed, no error relating to the issue of partnership, or of whether Allen had paid the notes in controversy to Rhoads, need be considered.

We conclude that all assignments of error should be overruled, and the judgment affirmed.
      «gssoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. v. MITCHUM.
    (No. 8544.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 31, 1917.)
    1. Master and Servant @=>293(19) — Action eor Injury — Failure to Instruct on Material Issue.
    In a section hand’s action for injuries due to fall while hurriedly removing hand car from track to avoid approaching train, where a strongly controverted issue was distance of train when first discovered, refusal to instruct that, if it was found that train was 500 yards away when discovered, and that within said distance plaintiff had ample time to remove car, there can be no recovery for failure to give warning of approaching train, was reversible error.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156.]
    2. Trial @=>229 — Instructions — Necessity.
    A paiffy to a suit has right to special instruction on any group of facts supported by pleadings and evidence, and which, if true, would be of controlling effect in his favor, although, a charge in general terms is given -which is to same effect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513.]
    3. Master and Servant <§=>293(19) — Injuries to Servant — Negligence — Instruction.
    In section hand’s action^for injuries due to fall in removing hand car from track to avoid approaching train, requested instruction that plaintiff could not recover if he and those with him had ample time in which to remove car was not bad for failure to add with “safety to plaintiff”; as jury could not reasonably interpret instruction otherwise.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156.]
    4. Master and Servant <§=>293(19) — Action for Injuries — Negligence of Foreman — Submission of Issue.
    Where there was testimony that a rule of defendant required the foreman of section gang to give warning of approaching trains, and that the foreman had specifically told section men to keep eyes on him, and that he would give warning, court did not err in submitting issue of alleged negligence of'foreman in failing to give warning, however convincing other evidence controverting plaintiff’s right to recover upon that issue might be.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156.]
    5. Trial <§=>244(4) — Instructions—Splitting ub Issues.
    In section hand’s action for injuries, splitting up in instructions the single issue of train crew’s negligence in failing to give warning of approach of train was improper, tending to place undue emphasis upon such issue and divert attention from true issue.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 579.]
    6. Master and Servant <§=>285(11) — Proximate Cause oe Injury — Erroneous Instructions.
    In section hand’s action for injuries, an instruction on alleged negligence of train crew in not giving warning of approach of train held . likely to lead jury to believe negligent failure of train crew to discover hand car was itself proximate cause of injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1035.]
    7. Trial <§=252(11) — Discovered Peril — Submission of Issue.
    JYhere in section hand’s action for injuries there is insufficient evidence to show actual knowledge by train crew of plaintiff’s peril, submission of issue of negligence of train crew after discovery of peril is unwarranted.
    [Ed. Note. — For other case, see Trial, Cent. Dig. § 603.]
    8. Master and Servant <§=>158 — Injuries to Servant — Connection Between Negligence and Injury.
    In section hand's action for injuries sustained from a fall in hurriedly attempting to remove a hand car to avoid an approaching train, to warrant recovery for negligence of foreman or train crew in not giving warning of approach of train, it must appear that fall was due immediately to haste to remove car, and that an injury of character alleged ought reasonably to have been foreseen as a result of alleged negligence.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 304.]
    Appeal from District Court, Wise County; F. O. MeKinsey, Judge.
    Suit by J. it. Mitchum against the Chicago, Rock Island & Gulf Railway Company. From a judgment 'for plaintiff after remand from Supreme Court (173 S. W. 878), defendant appeals.
    Reversed and remanded.
    See, also, 140 S. W. 812.
    Lassiter, Harrison & Rowland, of Ft. Worth, and McMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, R. F. Milam, of Ft. Worth, and F. A. Williams, of Galveston, for appellee.
   DUNKLIN, J.

J. H. Mitchum instituted this suit against the Chicago, Rock Island & Gulf Railway Company to recover damages for alleged personal injuries sustained by him while employed as a section hand by the defendant company, and from a judgment in his favor for $12,500, the railway company has appealed.

According to allegations in the plaintiff’s amended petition, on January 20, 1907, he, together with two other section hands were working on defendant’s track about two miles south of Park Springs under the control and direction of Charles Wicker, defendant’s section foreman. A hand car was in use by the section gang. As it approached a curve in the track to the south, the foreman went forward for the purpose of discovering whqther or not a train was approaching from that direction, to the end that the hand car might be removed from the track if such was found to be true. He directed plaintiff and the other section hands to remain with the hand car and to follow him whenever he signaled them- so to do. While plaintiff and his fellow servants were moving the car southward, in obedience to instructions from the foreman, a passenger train suddenly approached from the north with great speed, and while plaintiff and the other section hands were attempting to remove the hand car from the track in order to avoid a wreck of the passenger train, and on account of the great haste necessary so to do, plaintiff slipped and fell, and his side struck with great force on one of the rails of the track, which resulted in serious injuries, for which damages were sought.

Plaintiff further alleged that as said train approached from the north he was facing south, and he did not discover its approach until the train was in close proximity to him; that the foreman was guilty of negligence in failing to warn him of the approach of the train; that the agents and employ és of the defendant in charge of the train discovered the presence of the hand car and the plaintiff and his fellow servants, and their perilous position, in time to have stopped the train or checked its speed so as to enable such employes to remove the hand car from the track with safety, but after making such discovery they negligently failed to check the train, and thereby to obviate and lessen the danger to plaintiff, and further that, if the persons in charge of the train failed to discover said section hands upon the track in time to so stop or check said train, then they were negligent in failing to make such discovery, which they could have done if they had kept a reasonable lookout for obstructions on the track.

Liability of the defendant was predicated upon the negligence so alleged, and those issues of negligence so presented were submitted in the court’s charge to the jury as a basis for a verdict in plaintiff’s favor, except the issue of discovered peril.

This is the second appeal in the present suit. On the former appeal a judgment in plaintiff’s favor was reversed by the Court of-Civil Appeals at Texarkana, and judgment then rendered in favor of the railway company; that court holding that the evidence showed conclusively as a matter of law that plaintiff was guilty of contributory negligence precluding a recovery. See C., R. I. & G. Ry. Co. v. Mitchum, 140 S. W. 812. But our Supreme Court held that the Court of Civil Appeals erred in rendering the judgment and remanded the cause to the trial court for another trial. See Mitchum v. C., R. I. & G. Ry. Co. (Sup.) 173 S. W. 878.

Whether or not plaintiff sustained any injury’ at all in the manner he alleged he was injured was strongly controverted in the proof introduced. Assuming that he was injured as alleged, another strongly controverted issue was the distance the train was from plaintiff at the time he first discovered its approach and attempted to remove the hand ear from the track.

On August 31, 1907, plaintiff gave a statement in writing detailing how he claimed the accident happened. In that statement he said that the accident occurred February 11, 1907; that Frank M. Abies, another section hand, the foreman, Charles Wicker, and himself were the only men engaged in work at the time; that he discovered the train approaching in his rear when it was 500 or 000 yards away; that in removing the car from the track his feet slipped on the ice which covered the ties and caused him. to fall, his side striking upon the rail. On the same date he gave another written statement, in which he again said that the cause of his fall was slipping upon the ice, and under the heading “Names and-Addresses of Witnesses” he gave only the name of F. M. Abies. On the trial from which the appeal is taken he testified that he .could not give the exact date of the accident, but that it occurred between the 20th and last of January, 1907, that his brother, Will Mitchum, and Fuller Abies were all working as section hands at the time with Charles Wicker as their foreman, and that when he first discovered the approach of the train it was 50 or 75 yards distant. Fuller Abies and Charles Wicker were both introduced as witnesses, and both testified that in January and February, 1907, they worked on the section with the plaintiff, but that plaintiff did not fall on the track as claimed by him, and that they never heard of any such claim being made by him until long after that time, and after plaintiff had ceased to work. The evidence further shows that plaintiff’s brother, Will Mitchum, ceased to work on such section the latter part of January, 1907; the foreman fixing January 19th as the specific date Will Mitchum ceased to work.

Error has been assigned to the refusal by the court of the following special instruction requested by defendant;

“Gentlemen of the jury, if you believe that the plaintiff fell and was injured while attempting to remove a hand car from the track in front of an approaching train, and if you find that plaintiff and those with him on said hand car discovered said train approaching when it was at a distance from them of 500 or 600 yards, or something like that distance, and that at such distance plaintiff and those with him had ample time in which to remove said hand car from the track before the train reached said point, then you are instructed that defendant cannot be held liable for any failure on the part of any one to give them warning or notice of the approach of said train.”

The court gave instructions upon the issues of assumed risk and contributory negligence of the plaintiff, but gave no instructions presenting the converse of plaintiff’s contentions of defendant’s negligence in the three respects alleged, further than the charge in general terms that, in order for plaintiff to recover, the burden was upon him to establish by a preponderance of the evidence the facts which would entitle him to a verdict under the instructions given, and the further instruction reading as follows:

“If you believe that plaintiff’s injuries, if any he received, were caused by an accident and were not the result proximately of negligence on the part of the defendant, as charged by plaintiff, and explained in other instructions given you, then you will find for the defendant.”

The contention presented in plaintiff’s pleadings was that he would not have slipped and fallen but for his haste to remove the hand car from the track, which haste was made necessary by reason of the close proximity of the approaching train when he first discovered it. And his testimony upon the trial was that when he first discovered it the train was only 50 or 75 yards distant, notwithstanding which fact the hand car was removed and he got out of the way of the train without being struck by it. He further testified that the track north of the place of the alleged accident was straight, affording him an unobstructed view of an approaching train for a distance of a mile or more.

Will Mitchum, plaintiff’s brother, testified in his behalf and corroborated his testimony as to the alleged accident and injury of plaintiff.

But in addition to the testimony of the section hand Abies and the foreman Wicker specifically denying that any such; accident happened as noted already, defendant also introduced the testimony of the operatives of each south-bound passenger locomotive due over that portion of the track at or about the hour when plaintiff says he was injured, and on several dates, including the date alleged in plaintiff’s petition as the date of the accident and dates immediately before and after that date, all of whom denied seeing a hand car removed from the track at or near the place of the alleged accident, and denied hearing of any such occurrence as testified to by plaintiff.

The rule is well settled that a party to a suit has the right to an affirmative presentation to the jury of any group of facts which are supported by pleadings and evidence, and which, if true, would be of controlling effect in his favor upon a material issue in the case. And the refusal of his request for such an instruction may constitute reversible error, even though a charge in general terms is given which is to the same effect, but conveys the same idea only negatively or by inference. Wichita Falls Traction Co. v. Adams, 183 S. W. 155, by our Supreme Court, and other decisions ■ there cited.

Appellee suggests error in the requested instruction in that it omits a finding that the car could have been removed “with safety” to the plaintiff if the train was discovered by him at the distance stated. We are of the opinion that the language used in the instruction, “and that at such distance plaintiff and those with him had ample time within which to remove said hand car,” read in the light of the issues involved necessarily implied the idea suggested in the criticism, and that the jury reasonably could not have interpreted it otherwise. Accordingly, we hold that the refusal of the requested instruction was error, for which the judgment must be reversed.

There are authorities tending to support the contention presented in the first and second assignments of error to the effect that the charge given was upon the weight of the evidence, in that certain portions of it referred to the alleged negligence of the defendant in such a manner as probably to impress the jury with the belief that the court was of the opinion that such negligence had been established by proof. Without attempting to determine the merits of those assignments, we deem it proper to suggest that upon another trial, the charge be so worded as to avoid those criticisms.

According to testimony of Will Mit-chum, plaintiff’s brother, it was one of the rules of the company for the foreman of the section gang at all times to watch for approaching trains and warn the section hands of such approach, and on the occasion in controversy, when Wicker went forward to look for a train supposed to be approaching from the south, he specifically told the section men to keep their eyes on him and that he would keep a lookout for trains from the north as well as from the south, and that they did not keep a lookout for trains from the north because they relied on Wicker to give notice of any train from that direction.In view of such testimony we cannot say, as appellant insists, that the court erred in submitting to the jury the issue of the alleged negligence of Wicker in failing to give warning of the approach of the train from the north, however convincing other evidence controverting any right in plaintiff to recover upon that issue might be, and even though the trial judge should feel impelled to set aside a verdict in plaintiff’s favor upon that issue.

Upon the issue of negligence of the operatives of the locomotive in failing to warn him of the approach of the train, the court gave two separate and independent instructions in two separate paragraphs of the charge and authorized a recovery upon either one independent of the other. Those instructions were as follows:

“(b) If the plaintiff and other employés were on a hand car on defendant’s track, as claimed by plaintiff, and a train approached them, and if you believe that the agents and employés of the defendant in charge of and operating the locomotive of said train failed to discover said hand car on the track, if it was on the track, and that such failure to discover same was the result of the want of ordinary care on their part to keep a lookout for the purpose of discovering- persons upon the track of defendant’s railroad, and that by reason of such failure to use ordinary care if they did fail to do so, the plaintiff was injured as the proximate result thereof, then and in that event the defendant would be guilty of negligence, as that term is used in. paragraph 4 above.
“(c) If you believe from the evidence that the plaintiff, with other employés of defendant, was on the hand car on the occasion in question, as claimed by plaintiff, and that a train approached them, and that the agents and servants of the defendant in charge of and operating said train discovered plaintiff and his associates on the track with a hand car in time to give warning of the approach of the train and prevent .the safe removal of the hand car, but failed to give plaintiff warning of the approach of said train, and that such failure resulted from the want of the use of ordinary care on their part, and that such failure to use ordinary care by those operating said train was the proximate cause of the injury, if any, received by plaintiff, and complained. of in his petition, then and in such event the defendant would be guilty of negligence, as that term is used in paragraph 4 of this charge.”

Although the question is not presented in appellant’s brief, we are of the opinion that it was improper to thus split in two separate issues the single issue of negligence in failing to give plaintiff warning of the approach of the train, for the reason that such instructions tend to mislead and to divert the attention of the jury from the true issue, to wit, negligence in failing to give such warning, and for the further reason that in any event such double instructions upon substantially the same issue is an undue emphasis of that issue. Furthermore, the instruction in paragraph B of the charge copied above, to say the least, was likely to lead the jury to believe that they were authorized to hold that the negligent failure of the operatives of the locomotive to discover the hand car was itself the proximate cause of the injury, independent of the issue of their negligent failure, if any, to give warning of the approach of the train. Willis v. McNeill, 57 Tex. 405. We will say further that we do not think the evidence was sufficient to warrant the submission of the issue of negligence after discovery of plaintiff’s peril. To sustain an affirmative finding on that issue it would he necessary to show actual knowledge on the part of the operatives of the locomotive of plaintiff’s peril, which was not shown except by supporting one presumption by another presumption. Cardwell v. G., B. & G. N. By., 40 Tex. Civ. App. 67, 88 S. W. 422 and authorities there cited; P. W. B. Ry. Co. v. Jones, 106 Tex. 345, 166 S. W. 1130.

Appellant has also assigned error to the charge upon contributory negligence on the ground that it was uncertain in its terms, and hence was likely to confuse and mislead the jury to appellant’s prejudice. We are inclined to think that the charge is not altogether free from that criticism but without undertaking to determine whether or not the assignment should be sustained we suggest that upon another trial the instruction be so drawn as to avoid the criticism.

In view of the reversal of the judgment for the reasons given above, we shall not determine the merits of further assignments that the verdict is so contrary to the great weight of the evidence as to require a reversal of the judgment. One of those assignments is, in effect, that the evidence on the issue of contributory negligence of plaintiff was substantially the same as on the former trial, and on the former appeal was held to be so overwhelmingly in defendant’s favor as to require a reversal of the judgment, and which decision is therefore stare decisis that issue. 11 Cyc. 757; Moore v. Chamberlain, 152 S. W. 195.

We suggest further, in the absence of any assignment presenting the question, that the issue whether or not plaintiff’s alleged fall was due immediately ⅛ Ms haste to remove the hand car was not submitted specifically, but by inference only; nor have we found any testimony by plaintiff to that effect. In the absence of a finding in the affirmative on that issue supported by proof, there could be no recovery upon any of the issues of negligence; for in that contingency no causal connection between such negligence and the alleged injury would be established. And even though such causal connection be established, no recovery could be sustained in the absence of a further showing that an injury of the character alleged by the plaintiff ought reasonably to have been foreseen as a result of the negligence alleged and established by proof.

Eor the reasons indicated, the judgment is reversed, and the cause remanded.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    KERNAGAN v. CITY OF FT. WORTH.
    (No. 8275.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 17, 1917.
    On Motion for Rehearing, April 30, 1917.)
    1. Municipal Cobpobations <§=3565 — Action on Impeovement Certificate — Variance.
    If the assignment of an improvement certificate was made subsequent to filing suit thereon, the assignor could further prosecute the suit for the benefit of the assignee, and the as-signee would not be a necessary party.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1274.]
    2. Municipal Cobpobations <§=>567(6) — Action on Impeovement Cebtieicate — VARIANCE.
    In such case there is no fatal variance between the allegata and probata as to ownership.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1281.]
    3. Municipal Cobpobations <§=>568(1) — Action on Improvement Cebtieicate — Evidence — Burden oe Proof.
    In a suit on an improvement certificate, indorsed in blank by the original holder, brought by the city for the benefit of such holder, the burden of proof was on plaintiff to establish ownership of the certificate at the time of institution of the suit.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1282.]
    4. Municipal Corporations <§=>567(6) — Action on Improvement Certificate — Variance.
    If an assignment of an improvement certificate and rights thereunder was made prior to the institution of suit thereon for the benefit of the assignor, and it was so shown, a contention of variance should be sustained.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1281.]
    5. Municipal Corporations <§=>568(1) — Action on Improvement Certifícate — Evidence — Sufficiency.
    In a suit on an improvement certificate, brought by the city for the benefit of the original holder, in which there was evidence that the certificate, which was indorsed in blank, had been assigned, evidence held not to discharge burden of proof on plaintiff to show ownership of the certificate.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1282.]
    6. Municipal Corporations <§=>568(1) — Improvements — Statute.
    Ft. Worth City Charter, p. 79, c. 14, § 7, provides that no part of costs of improvements shall be assessed against any owner or his property in excess of the special benefits thereto, or enhanced value thereof arising from the improvement, nor until after the notice and hearing hereinafter provided for. Section 8 provides that notice to the property owner shall be served by publishing same for five successive days in some newspaper published in such city, and by mailing a copy thereof by registered mail deposited in the post office of such city, directed to the address of such owner, if known, at least 10 days before the day of hearing, but that notice by publication shall be conclusive, and notice by letter merely cumulative. Section 10 provides for suit by a property owner within 10 days from the conclusion of such hearing, for the purpose of testing the validity of said assessment and of any proceeding had with reference thereto, and further provisions declare that if such suit is not brought a property owner is estopped to set up any defect or omission in such proceedings. Section 15 provides that the recital in such certificates that the proceedings with reference to such improvements have been made in compliance with the terms thereof and all prerequisites to the fixing of the lien, etc., shall be prima facie evidence of the facts so recited, etc., and without further proof be presumed to have been performed. An improvement certificate recited that all proceedings and prerequisites with reference to the improvement had been complied with. Held that, in a suit upon the certificate, such recital is at most merely prima facie proof of the performance by the city of the essential steps to fix the lien upon the property abutting on the streets paved, and that, when other evidence tended strongly to show that no steps were taken, the prima facie effect of such recital was overcome.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1282.]
    On Motion for Eehearing.
    7. Appeal and Error <©=>799 — Motion to Dismiss — Sufficiency.
    A motion to dismiss an appeal, on the ground that matters in controversy have been settled, will be overruled, where the motion, as well as supporting affidavit, failed to show that the settlement had in fact been made; there having been merely an agreement to settle on a certain basis, which agreement appellant has failed to perform.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3158-3160.] •
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action on an improvement certificate ■ by the City of Ft. Worth, for the use of Eoach & Manigan against D. H. Kernagan. Judgment for plaintiff, and defendant appeals.
    Eeversed and remanded.
    Flournoy, Smith & Storer and Dedmon & Potter, all of Ft. Worth, for appellant. H. C. McCart an'd Charles Kassell, both of Ft. Worth, for appellee.
   BUCK, J.

The city of Ft. Worth, on June 11, 1913, for the benefit of Eoach & Manigan, a partnership, filed this suit against D. H. Kernagan, and for cause of action alleged that the board of commissioners of said city, acting under the provisions of its charter, had resolved that certain named streets in said city should be paved, and that a certain part of the cost of such paving should be adjudged against the abutting property owners; that thereafter specifications for said work were prepared by the engineer of said city and submitted to the board of commissioners, and by said commissioners were approved and adopted, and bids for said work were duly advertised for, filed, and opened, an'd the bid of said Eoach & Manigan, contractors, was by said board accepted as the most beneficial to said city; that said city and said contractors entered into a contract, dated May 23, 1910, for the performance of said work in accordance with the terms of said contract, resolutions, and specifications ; that thereafter, by ordinance duly entered, “having first taken all the proceedings and complied with the prerequisites prescribed by law therefor,” said city, through said board of commissioners, levied and assessed the cost of said-work, as required by law, in favor of said contractors, against said D. H. Kernagan, as owner of certain described property abutting on said streets; that on June 13, 1911, said city of Ft. Worth executed and delivered to said contractors its certain improvement certificate No. 41, describing said indebtedness and property, and stipulating that the said sum so charged and assessed was duly owing to said contractors from said owner and was a lien upon his said property, and that said sum should be paid to said contractors, or their assigns, in three annual installments, the first installment to be due 30 days after the date of such certificate, and the second and third installments due 1 and 2 years, respectively, after said date, the amount and date of maturity of each installment being evidenced by installment coupons attached to said certificate. This certificate provided that, if any installment was paid within 30 days after date of such certificate, it should bear no interest, but, if not so paid, then such as were not paid on or before maturity should bear interest after date at the rate of 6 per cent, per annum; that a failure to pay any installment when due should mature all deferred payments and cause the unpaid installments to bear interest at 8 per cent, per annum. The certificates were made assignable, an'd included interest as aforesaid, and costs of collection, together with the reasonable attorney’s fees when incurred, and that all of such obligations should constitute a personal claim against the owner of such property and be secured by lien on such property superior to all other liens, claims, or titles, except lawful taxes. While several suits were filed, involving the same parties, yet they were consolidated by order of the court and by agreement of the parties, and we will treat the case as if only one suit had been filed.

Defendant filed his plea in abatement, predicated on the contention that plaintiff, as a municipal corporation, had no authority in law to permit Eoach & Manigan, the real beneficiaries, to file said suit in the city’s name, an'd that any law or ordinance providing for such suit was unconstitutional. The plea in abatement having been overruled, defendant further pleaded by way of general demurrer, special exceptions, which will be hereinafter noted as may become necessary, by general denial, by a plea of the two-year statute of limitation, and by a further plea that the defendant bad been given no notice of the purpose of the city of Et. Worth to have such paving done, and had had no opportunity for a hearing as to the necessity for such paving, or as to whether defendant’s property would be enhanced in value by reason of such paving in a sum equal to or in excess of the cost of such paving adjudged against him, or whether or not it would be enhanced in any amount.

By trial amendment, plaintiff pleaded that the paving described in plaintiff’s petition was completed and accepted June 13, 1911, as to the property on one street, and on August 8, 1911, as to the property on the other street. By another trial amendment, plaintiff pleaded that the original contract was awarded to the Metropolitan Construction Company, and by it assigned, with the consent of the city of Ft. Worth, to Roach & Manigan. It further pleaded that this suit was brought by the city of Ft. Worth under a resolution of the board of commissioners of said city duly passed.

Upon a trial before the court, judgment was rendered for the city of Ft. Worth, for the use of Roach & Manigan, a partnership, in the form stated, and for a foreclosure of the special assessment lien. Said judgment further .provided that if, upon the sale of said described property, the proceeds thereof should be insufficient to satisfy said judgment, then plaintiff was entitled to an execution against the defendant personally to fully satisfy the judgment rendered. From this judgment the defendant has appealed.

Without attempting to take up and discuss separately the 21 assignments of error in appellant’s brief, we will direct our attention to the questions and matters presented which, in our opinion, are material to the proper disposition of this appeal. From the statement of facts it appears that the contract for this paving was originally awarded by the commissioners of the city of Ft. Worth to the Metropolitan Paving Company, that after said award had been made the Metropolitan Paving Company went into the hands of a receiver, and that Roach & Manigan, a partnership, purchased the contract from the receiver, and, with the consent of the city of Ft. Worth, completed said paving contract as originally made between the city and the Metropolitan Paving Company. It further appears that in 1912, subsequent to the completion of the work under the paving contract, and the issuance of the improvement certificate which forms the basis of this suit, a corporation was formed under the name of Roach & Manigan Paving Company, which took over the assets of Roach & Mani-gan, the partnership. Among other assets was this certificate and right of action. The certificate was assigned by Roach & Mani-gan to the Roach & Manigan Paving Company, but it does not affirmatively appear whether said assignment was made before or after the institution of this suit.

B. H, Mason testified for the defendant that he was secretary and treasurer of the Roach & Manigan Paving Company, a corporation, successors to Roach & Manigan, the partnership, on whose behalf suit was filed, and that the corporation had taken over the assets and affairs of the partnership, and was at the time of the trial the legal owner and holder of the certificate. If the transfer or assignment was made subsequent to the filing of the suit — i. e., pendente lite — -then the assignor could further prosecute the suit for the benefit of the assignee, and the assignee would not be a necessary party. Bailey v. Laws, 3 Tex. Civ. App. 529, 23 S. W. 20; Drouilhet v. Pinckard, 42 S. W. 135. Nor in such a case would there be any fatal variance between the allegata and pro-bata as to ownership. Watts v. Johnson, 4 Tex. 311. The certificate was indorsed by Roach & Manigan in blank, said indorsement being undated. We are of the opinion that the burden of proof was on plaintiff to establish ownership of the certificate at the time of institution of the suit — in the first place, because it was an essential element of the cause of action asserted; and, secondly, because it was a matter peculiarly within the knowledge of the parties beneficiary* for whose benefit the suit was brought. If the assignment of the certificate and rights thereunder was made prior to the institution of the suit, and it was so shown, then the contention of variance made by the appellee should be sustained. East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287-291.

The corporation having been formed in 1912, and the suit filed in June, 1913, and an officer of the corporation having testified that the corporation took over the partnership assets, which included, presumably, this certificate, we are of the opinion that the plaintiff did not discharge its burden of proof as to the ownership of the certificate. While we are not prepared to say that we would feel impelled to reverse the judgment below upon this question alone, for the assignment is not directed to the admission of the instrument, but rather to a failure of proof, yet the doubt necessarily arising in our minds by reason of the unsatisfactory condition of the proof as to this matter,, in connection with other matters,' which will hereafter be discussed, causes us to feel that the judgment obtained in the trial court should not be sustained. Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884 is authority for the statement that the city charter, which authorizes the city council or city commissioners to improve the streets at the cost of owners of abutting property in proportion to frontage, without regard to special benefits to the property, is violative of sections 17 and 19 of the Constitution of the state and of the Fourteenth Amendment to the Constitution of the United States, citing Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct: 187, 43 L. Ed. 443. See Rudolph S. Blome Co. v. Herd, 185 S. W. 57.

The charter of the city of Pt. Worth, recognizing this limitation upon the power of the hoard of commissioners, provides (chapter 14, § 7, p. 79) as follows:

“But no part of such costs shall be assessed against any owner of his property in excess of the special benefits thereto in enhanced value thereof arising from, the improvement, nor until after the notice and hearing hereinafter provided for.”

The defendant below testified positively that he had received no notice, either by publication, letter, or otherwise, of any hearing afforded by the board of commissioners to the property owners whose property was sought to be subjected to the payment of the costs of paving, though he admits he was absent from the city of Pt. Worth for some three months, including the time the paving in front of his premises was done. The charter provides that notice to the property owner shall be served by publishing same for 5 successive days in some newspaper published in said city, and by mailing a copy thereof by registered mail deposited in the post office of said city, directed to the address of such owner, if known, at least 10 days before the day of hearing, though it further provides that notice by publication shall be conclusive, and notice by letter merely cumulative. There is no attempt on the part of appellee to show that even- such published notice was given, or that a hearing was had, unless the recitation in the improvement certificate itself, to wit, “having first taken all the proceedings and complied with the prerequisites prescribed by law therefor,” etc., should be held prima facie evidence that the publication of the notice was in fact made and the hearing had. 2 Page & Jones, Taxation by Assessment, § 1292, p. 1945, discusses the presumption as to notice and hearing, and states:

“In the absence of a statute making the assessment prima facie evidence of the validity of all prior steps, it has been said that there is no presumption of the publication of an ordinance, or of a notice calling for bids, or of a notice to pay an assessment. If provision is made for filing objections which the council is to consider, it will be presumed that the council gave a hearing, even though the statute does not specifically require it.”

16 Cye. p. 1076, expresses the rule in the following words:

“It will be presumed that public officers, including persons acting in an official capacity, have been duly elected, and that they have qualified; .that their official acts are properly performed; and, in general, that everything in connection with the official act was legally done, whether prior to the act, as giving notice, serving process, or determining the existence of conditions prescribed as a prerequisite to legal action, or subsequent to such act. * * * The presumption of regularity of an official act cannot be used as a substitute for proof of a definite and material fact, * * * nor to supply a fact which the official record affirmatively shows to be absent. The presumption is rebut-table by affirmative evidence of irregularity. The presumption in favor of the regularity of official acts does nof extend to acts involving the forfeiture of an individual’s rights, the depriving him of his property, or the placing of a charge or a lien thereon.”

See Irwin & Sanders v. Mayes, 31 Tex. Civ. App. 517, 73 S. W. 35; Davis v. Tillar, 32 Tex. Civ. App. 383, 74 S. W. 921; Patterson v. Knapp, 99 S. W. 125; Parker v. F. W. & D. C. Ry. Co., 84 Tex. 333, .336, 19 S. W. 518 ; Moseley v. Bradford et al., 190 S. W. 824.

Wigmore on Evidence, vol. 4, § 2534, says:

“The general experience that a rule of official duty or a requirement of legal conditions is fulfilled by those upon whom it is incumbent has given rise occasionally to a presumption of due performance. This presumption is more often mentioned than enforced, and its scope as a real presumption is indefinite and hardly capable of reduction to rules. It may be said that most of the instances of its application are found attended by several conditions: Eirst, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer’s action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and, finally, that the circumstances of the particular case add some element of probability.”

Without further citation of authority, it is sufficient to say that the verity of the recitations of the improvement certificate is in other respects subject to question, inasmuch as it is shown practically without controversy that the recitation in the improvement certificate, to wit, that said “bids for said work were duly advertised for, filed, and opened, and the bid of Roach & Manigan therefor was by said Board accepted,” etc., is in fact incorrect, since the evidence shows that the Metropolitan Paving Company secured an award on its bid, and that the contract secured by the Metropolitan Paving Company was later purchased by Roach & Manigan. The evidence does not show whether Roach & Manigan filed its bid in the first instance or not, but certainly, if it did so, its bid was not accepted. We have not thought that this discrepancy was material on the question of plaintiff’s .right to recover, but.it does tend to show the lack of verity of the recitations of the certificate, in this respect at least; and, in view of the defendant’s positive denial of having received notice, the general uncertainty as to whether or not notice was in fact given suggests another reason why the judgment should be set aside. If notice of such hearing had been in fact published, and the hearing had, and no suit was filed by defendant within 10 days from the conclusion of such hearing for the purpose of testing the validity of said assessment for personal liability, and the validity of any proceeding had with reference thereto, as provided in chapter 14, § 10, of the city charter, then it might be held, in accordance with the further provisions of said section, that appellant would be estopped or concluded from setting up in this suit any defect or omission in such proceedings. Gallahar*v. Whitley, 190 S. W. 257; Page & Jones on Taxation by Assessment, § 1030. But in the absence of any actual hearing afforded the property owners affected, or in the absence of legal notice of such hearing, no controlling effect could be given to the provisions of the charter above quoted from chapter 14, § 15, supra ; for to hold otherwise would be to hold that, merely from the fact that the certificate recited due notice and the regularity of the proceedings in other respects, a property owner would be precluded from seeking relief from an unjust or burdensome assessment, or to show that in fact there was no notice of any hearing published, or that no hearing was in fact afforded. In other words, at most the presumption of the regularity in the prerequisites and necessary proceedings amounts to a prima facie showing only, and we question whether this prima facie showing has not been overcome by the testimony of the defendant herein. Moreover, at least some of us think that, even though the charter provisions of chapter 14, § 15, to the effect that the recital in the improvement certificate that the proceedings and prerequisites with reference to such improvements have been complied with in order to fix the lien on the property and the personal liability against the owner, should be given the force of a statute as to a rule of evidence, yet there is some doubt as to the constitutionality of such provision. McFarland v. Refining Company, 241 U. S. 79, 36 Sup. Ct. 498, 60 L. Ed. 899. But we do not feel called upon to decide this .question, in view of other grounds of error urged and sustained.

Further, we are inclined to think that the contention of appellant that the witness Mason failed to qualify as an expert upon real estate values in the city of Ft. Worth should be sustained; also that neither Mason’s testimony, nor that of any other witness, sufficiently satisfied plaintiff’s burden of proof that defendant’s property was enhanced in value in an amount equal to the assessment adjudged against it. Defendant testified positively that his property was not enhanced in value at all, though he modifies this statement somewhat on cross-examination. However, we do not believe that the witness Mason showed himself sufficiently informed as to real estate values in the locality where the paving was done to testify with reference to the enhancement by reason of the paving, nor that Ms testimony, if given its full weight, shows that the property was enhanced in an amount equal to the sum adjudged against defendant.

While we are not prepared to say that we would feel called upon to reverse the judgment herein upon any one of the questions discussed, yet by reason of the unsatisfactory condition of the proof as to the several matters mentioned, and the conclusion on our part that the liability of the defendant has not been established with that reasonable degree of certainty required by law, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

By the statement, contained in the original opinion, that “the defendant below testified positively that he received no notice, either by publication, letter, or otherwise, of any hearing afforded by the board of commissioners,” etc., we did not mean to say, as counsel for appellee seems to have understood us, that the defendant testified that no notice by publication was given — merely that he received no notice, and saw no publication of such notice.

For the first time in its motion for rehearing appellee calls our attention to the fact that defendant below, in his answer to plaintiff’s petition, not only failed to deny having received notice of a hearing, but, in fact, admitted having “received some sort of notice from the plaintiff in reference to the paving of said street, but do not know what such notice was, except in a general way,” etc. We do not feel called upon to reopen the discussion as to this question at this time, and to determine what effect should be given to this qualified admission, in view of our present conclusion that the failure to establish ownership in Roach & Manigan of the improvement certificate would require a reversal of the judgment.

Some question is raised by appellee regarding the following language in our original opinion, to wit:

“But in the absence of any actual hearing afforded the property owners affected, or in the absence of legal notice of such hearing, no controlling effect could be given to the provisions of the charter above'quoted from chapter 14, § 15, supra.”

What we intended to say, as shown by the further context, was that such recital in the certificate was at most merely prima facie proof of the performance by the city of the essential steps to fix the lien upon the property abutting on the streets paved, and that, when other evidence tended strongly to show that no such steps were taken, the prima facie effect of such recital was overcome.

Appellee has filed a motion to dismiss the appeal, and in said motion alleges that the matters in controversy between appellee and appellant have been settled. But said motion to dismiss, as well as its supporting affidavit, fails to show that in fact the matters in controversy have been settled. At most, it is shown that an agreement was entered into, prior to the submission of the case in tMs court, to settle upon a certain basis, but that appellant has up to date failed to comply with the agreement asserted. Hence, even if we were inclined to consider such a motion at this late hour, under the circumstances related, yet we think the motion should he overruled, because the motion and affidavit fail to show a settlement; and it is so ordered.
      <&=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: CONNER,, C. J.

text:
    HOLCOMB v. WILLIAMS et al.
    (No. 8586.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 31, 1917.)
    1. Venue <§cv>5(2) — Action to Enforce Lien —Statute.
    A suit upon notes given as part of the purchase money of land described and to foreclose a vendor’s lien given to secure the notes is a suit merely to fix a lien on the land, and not a suit not governed by Vernon’s Sayles’ Ann. Civ. ,St. 1914, art. 1830, providing that an inhabitant of the state .shall not be sued out of the county of his domicile, except, to wit: No. 14: “.Suits for the recovery of lands or dam-ag'es thereto, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 6.]
    2. Venue <g=o26 — Statute — Construction —“Prescribe”—'“May”—“Must.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, provides no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to wit: No. 3: “Where the defend'ant, or all of several defendants, reside without the state, or where the residence of the defendants is unknown, in which case the suit may be brought in the county in which the plaintiff resides.” No. 5: “Whei;e a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.” No. 12: “Where the suit is for the foreclosure of a mortgage or other lien, in which case suit may be brought in the county in which the property subject to such lien, or , a portion thereof, may be situated.” Paragraph 30: “Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county in which jurisdiction may be so expressly given.” In a suit brought in county of plaintiff’s residence against a nonresident on purchase-money notes payable in another county and seeking_ to foreclose a vendor’s lien against a nonresident defendant, a defendant presented a plea of privilege to be sued in the county named in the notes. Held, that by use of the word “prescribed” paragraph 30 applies only to the mandatory exceptions, and exceptions 3, 5, and 12 being permissive by the use of the term “may” instead of “must,” plaintiff had the option under exception No. 3 to institute suit in the county of his own residence (citing Words and Phrases, Second Series, Prescribe).
    [Ed. Note. — For other cases, see Venue, Gent. Dig. §§ 39, 40.
    For other definitions, see Words and Phrases, First and Second Series, May; Must.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    ■ Suit by E. H. Holcomb against J. D. Williams and another. From an order sustaining a plea of privilege and changing the venue of the case, plaintiff appeals.
    Order set aside, and cause reversed, with directions to overrule the plea of privilege.
    D. T. Bomar and Templeton & Milam, all of Ft. Worth, for appellant. Bryan, 'Stone & Wade, of Ft. Worth, for appellees.
   CONNER,, C. J.

Appellant, E. H. Holcomb, instituted this suit in the district court of Tarrant county, Tex., against J. D. Williams and George Rainey, to recover upon certain promissory notes executed by Williams. As described in the petition, the notes were made payable in Tom Green county, Tex., and it was alleged that they had been given as part of the purchase money of a tract of land described in the petition, and the plaintiff sought to foreclose a vendor’s lien given to secure the notes. It also appears, as alleged, that the appellant, Holcomb, at the date of the institution of the suit was resident citizen of Tarrant county, Tex., and that J. D. Williams and George Rainey were each nonresidents of the state. The plaintiff’s prayer was for a recovery of the sum of money due, as evidenced by the notes, against J. D. Williams, and for a foreclosure of the said vendor’s lien against the defendant George Rainey, who it was alleged claimed some interest in the land upon which the lien rested.

The defendant Williams, though duly cited, made no answer. The defendant George Rainey, however, presented a plea-of privilege to be sued in Tom Green county, Tex. The plea of privilege set up the fact that the notes were made payable in Tom Green county, that the land upon which it was sought to foreclose the lien was there located, and that he (Rainey) was a resident citizen of the state of Illinois.

Upon a hearing the court sustained the plea of privilege and changed the venue of the case to Tom Green county, from which said order the plaintiff, as allowed under our statutes, has prosecuted an appeal.

As alleged in both the plaintiff’s petition and in the plea of privilege, both defendants áre nonresidents of the state of Texas, and the plaintiff, Holcomb, is a resident of Tarrant county, Tex. Of these facts as alleged there is no dispute, sp that the question for our determination is merely whether, as a matter of law, under the allegations and undisputed facts, the appellee Rainey had the right to demand that the plaintiff’s suit be instituted and tried in the proper court in Tom Green, county, instead of in Tarrant county. The solution of the question depends upon the provisions of our statutes relating to the subject of venue.

Article 1830, Vernon’s Sayles’ Texas Civil Statutes, provides that':

“No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following casos, to wit. * * » ”

Thereupon some 29 exceptions to the general rule as thus stated are set forth. Evidently the general rule can have no application in this case, for by its terms it is applicable only to inhabitants of this state. Appellee, being an inhabitant of the state of Illinois, does not come within the purview of the general rule. He claims the privilege of being sued in Tom Green county, however, by virtue of several of the exceptions which follow the general rule. The exceptions relied upon are Nos. 5, 12, and 14. Exception No. 5 reads as follows:

“Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.”

Exception No. 12 thus reads:

“Where the suit is for the foreclosure of a mortgage or other lien, in which case suit may be brought in the county in which the property subject to such lien, or a portion thereof, may be situated.”

' And in exception No. 14 it is declared:

“Suits for the recovery of lands or damages thereto, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

In connection with and in aid of the exceptions just quoted, appellee urges paragraph 30 of article 1830, which is as follows:

“Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

The judgment of the court below evidently rests upon appellee’s contention that paragraph 30 last quoted so operates on exceptions 5 and 12 as to establish the proper venue of this suit in Tom Green county; the argument here being that exceptions 6 and 12, relating as they do to particular character of actions, rather than to the places of the residence of the persons, are in effect mandatory under the operation of paragraph 30. There is a further contention also that, inasmuch as appellee is not a party to the notes declared upon, the suit as to him involves title to land, and therefore within the purview of exception 14, above quoted, providing that such suits must be brought in the county in which the land is situated. But as to this latter contention we think it sufficient to say that this suit on the part of the plaintiff is clearly not one to recover land or damages thereto, to quiet title to land, or stay waste thereon. On the contrary, the suit as against appellant is merely to fix a lien on the land, and it has several times been decided that such suits are not governed by exception 14. See Connellee v. Eastland County, 31 S. W. 562; Branch v. Wilkens, 63 S. W. 1083; Lucas v. Patton, 49 Tex. Civ. App. 62, 107 S. W. 1143.

We are of the opinion that the appel-lee’s other contention must likewise be overruled, and that the court erred in the ruling complained of. We think, as appellant insists, that exception 3 of 'article 1830 conferred upon appellant, as he insists, the privilege under the circumstances alleged to institute his suit in Tarrant county, Tex., where he resided. The exception referred to is as follows:

“Where the defendant, or all of several defendants, reside without the state, or where the residence of the defendants is unknown, in which case the suit may be brought in the county in which the plaintiff resides.”

It is to be noted that exceptions 5 and 12 are permissive and not mandatory in form; that is to say, if the contract in writing sued upon is to be performed in a particular county or to foreclose a lian upon land, then he “may,” if he so desires, institute suit either in the particular county where the obligation is to be performed or in the county in which the land subject to the lien is situated. They are by no means mandatory. Notwithstanding these exceptions as against an inhabitant of this state, the suit in either case might be instituted by the parties in the county where the defendant resides. And these exceptions without doubt would have authorized the plaintiff to have instituted this suit in Tom Green county. But he also had the option, as we think, by virtue of exception No. 3 under the facts alleged, to institute suit in the county of his own residence, to wit, in Tar-. rant county. We cannot say that exceptions Nos. 5 and 12 are more imperative in form or effect than exception No. 3. Paragraph 30, stressed by appellee, cannot alter the case as we view it. By an examination of article 1830 it will be seen that the general rule is followed by some 29 exceptions, of which, as we had occasion to observe in the recent case of J. W. Mitchell, Receiver, v. Hancock, 10 are in the mandatory or imperative form and 19 are in the permissive or optional form, as may be illustrated by the exceptions already quoted; that is, from them it will be seen that exceptions 3, 5, and 12 are in the permissive form, affording options on the part of the plaintiff; while exception 14 uses the term “must” instead of “may.” It is mandatory, not permissive, and it is to the mandatory exceptions, as we think, that paragraph 30 must be applied. It is to be noted that by its terms it applies to cases where the venue is “expressly prescribed.” The term “prescribed,” as we think, imports something beyond a mere permission, or option. To “prescribe” is, as defined by Webster, “to set or lay down authoritatively for direction or control; given as a law or direction.” Another definition is “to impose as a peremptory order.” See Words and Phrases, vol. 3 (2d Ser.) p. 1154.

On the whole we conclude that the court erred in entering the order to transfer the ' venue of this suit to Tom Green county.

The order is accordingly set aside, and the cause reversed, with direction to the trial court to overrule appellee’s plea of privilege.
      ¡SumFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LYON-GRAY LUMBER CO. v. NOCONA COTTON OIL CO. et al.
    (No. 8508.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 10, 1917.
    On Motion for Rehearing, March 17, 1917.)
    1. Appeal and Error ⅞=>547(2) — Scope oe Review — Record—Sufficiency.
    Where no statement of facts appears in the record, the findings of fact filed by the trial judge are conclusive on appeal.
    2. Mechanics’ Liens <s=»198 — Priority — Earlier Incumbrances.
    Liens given to secure promissory notes at a date prior to the furnishing of materials by plaintiff are superior and prior to plaintiff’s right to a mechanic’s lien.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 348-855.]
    3. Mechanics’ Liens ⅞=»3 — Effect oe Contract with Owner — Statutes—Construction.
    Under Const, art. 16, § 37, providing that materialmen shall have a lien upon improvements for materials furnished, where plaintiff furnished materials to the owner, a lien accrued, unimpaired by Yemon’s Say les’ Ann. Civ. St. 1914, arts. 5621-5639, as to mechanics’ liens in general.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 4.]
    4. Mechanics’ Liens <S=>185 — Property Subject-Machinery Not Affixed.
    One furnishing materials for construction of a factory has no lien upon machinery installed therein not in any way permanently affixed to the realty.
    [Ed. Note — For other cases, see Mechanics’ Liens, Cent. Dig. § 324.]
    5. Appeal and Error ⅞=?1032(1) — Burden oe Showing Prejudice.
    Where the court refused to decree foreclosure of a mechanic’s lien, and the evidence failed to disclose that the property subject to the lien would exceed in value the amount of prior liens upon it, there was no ground for reversal, since the appealing party must show prejudice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047, 4051.]
    On Motion for Rehearing.
    6. Mechanics’ Liens <⅜»281(1) — Evidence-Sufficiency.
    In suit to foreclose mechanic’s lien, evidence ■that after it accrued one defendant had purchased subsequent liens on the same property without showing their amount is not a sufficient showing that the property exceeded in value prior liens thereon so as to warrant reversal of judgment refusing foreclosure.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 565-567.]
    Error from District Court, Montague County; C. F. Spencer, Judge.
    Suit by the Lyon-Gray Lumber Company against the Nocona Cotton Oil Company and others. Judgment in part for plaintiff, and it brings error. Affirmed. On motion for rehearing.
    Motion overruled.
    Haffip P. Abney, of Sherman, and W. S. Jameson, of Montague, for plaintiff in error. W. T. Russell, of Nocona, for defendants in error.
   DUNKLIN, J.

The Lyon-Gray Lumber Company instituted this suit against the Nocona Cotton Oil Company and W. A. McCall and Cadmus McCall to recover a debt against the oil company for $1,134.10 for building material sold to that company to be used in the construction of repairs on said defendant’s oil plant, and certain additions thereto, and to foreclose a lien upon the entire plant as against all the defendants; W. A. and Cadmus McCall being subsequent purchasers of the property under sales made by virtue of deeds of trust given thereon by- the company, and also being the owners of certain other liens thereon which had not been foreclosed.

The court rendered judgment against the oil company for the amount of plaintiff’s debt, and found that the plaintiff was entitled to a lien on a part of the property in controversy for th$ sum of $117.25 of the debt sued for, but further found the plaintiff was not entitled to a lien upon the rest of the property for any sum. The judgment further recites that the defendant W. A. McCall had paid into court, subject to plaintiff’s order, the said sum of $117.25 to satisfy plaintiff’s lien so found by the court, and, having thus satisfied said lien, judgment was entered in favor of the McCalls denying a foreclosure of any lien upon the property and quieting the title of the two McCalls to the property. From that judgment, the plaintiff has prosecuted this writ of error.

No statement of facts appears in the record, but the trial judge filed findings of fact and conclusions of law, and such findings of fact are therefore conclusive here. From those findings it appears that the plaintiff sold to the oil company certain building material on open account during the year 1913, to be used in building an additional room to the oil plant and in certain repairs and other improvements thereon. Material to the extent of the value of $1,094 was used in the construction of such improvements.

The first material purchased was delivered April 24, 1913, and such deliveries were continued on divers days thereafter up to and including November 14, 1913, and a few items as late as January 8, 1914. All said building material was sold under and by virtue of a contract and agreement made in April, 1913, and prior to any delivery thereof, that the amount of indebtedness therefor should be paid on October 7, 1913. On February 7, 1914, plaintiff filed with the county clerk a verified account for such building material to be recorded in the records of mechanics’ liens of the county, for the purpose of fixing a lien upon the oil company’s plant, in accordance with the statutes. Material to the amount of $117.25 was sold during the four months next preceding the filing of said account, and the trial judge found that plaintiff was entitled to a lien for that amount on certain additions made to the plant in which said building materials were used, but on no other part of the plant, and further found that plaintiff was not entitled to a lien for the material sold prior to October 7, 1913. In other words, the trial judge held that the statutory requirement that, in order to fix a mechanic’s or material-man’s lien upon a building, under such circumstances, the account therefor must be filed for record in the mechanics’ liens record of the county within a period of four months after such account is due, applied to the lien claimed by plaintiff and was controlling, and that therefore plaintiff was not entitled to any lien' for material furnished prior to October 7, 1913. It further appears that on September 20, 1912, the oil company executed a deed of trust upon all of its property to secure the payment of two promissory notes of $4,500 each of the same date, which was duly recorded on September 27, 1912. Those two notes were in favor of the defendant W. A. McCall and became due March 1, 1914. The oil company haying failed to pay them, or any part thereof, the trustee in the deed of trust sold all the property on the first Tuesday in April, 1914, to satisfy said debt, and W. A. McCall became the purchaser; said sale appearing to be in all respects regular. It thus appears that this deed of trust and the record thereof antedated by some six months the contract under which the plaintiff agreed to sell the building material to the oil company.

On June 21, 1913, some two months after the plaintiff began to deliver building material to the oil company under the said contract of purchase, the oil company executed another deed of trust in favor of W. A. McCall upon all of its property to secure the payment of another promissory note dated June 12, 1913, in the principal .sum of $10,000, and on the first Tuesday in April, 1914, said McCall bought in all of the property under a trustee’s sale made by virtue of that deed of trust also, the oil company having wholly made default in the payment of the note for $10,000. Proper deeds of conveyance wer^ made to W. A. McCall by the trustee when each of those sales was made.

W. A. McCall also purchased the following liens and the notes for which they were given, all of which notes are wholly unpaid and the liens are still valid and subsisting, to wit: A promissory note for the principal sum of $4,000, dated September 27,1912, and secured by a chattel mortgage of the same date, duly recorded, upon all of the machinery in said plant; a certain other note in the sum of $3,800, dated June, 1912, and secured by a chattel mortgage, duly recorded, on a part of the machinery in said plant; a promissory note for $600, dated August 20, 1913, secured by a chattel mortgage duly recorded on a part of the machinery in the plant; a promissory note for $5,000, dated August 21, 1913, secured by a mortgage, duly recorded, upon all of the property of the oil company.

It thus appears from the foregoing that the liens upon the entire plant to secure the payment of the two promissory notes in the sum of $4,500 each, and also the two liens, one given September 27, 1912, for $4,000, and the other in June, 1912, for $3,800, on the machinery situated in the plant, were clearly prior and superior, in any event, to the lien claimed by the plaintiff in this case.

It is to be noted further that there was a foreclosure of the mortgage lien given to secure the two $4,500 notes, and that W. A. McCall bought in the property under such foreclosure sale.

The following is another finding by the trial judge:

“No proofs were made as to the value of the improvements above mentioned (meaning the improvements in the construction of which the material furnished by plaintiff was used), nor as to the value of the oil plant, and I do not find as to the values of either.”

We agree with the plaintiff in error in its contention that, as the material was furnished to the oil company under a contract between it and the plaintiff, and not to a contractor or subcontractor, a lien accrued under and by virtue of section 37, art. 16, of the Constitution to secure payment therefor, and that the right to such lien was not impaired by the provisions of chapter 2, tit. 86, Vernon’s Say les’ Texas Civil Statutes, requiring certain things to be done in order to fix a lien, under such decisions as Strang v. Pray, 89 Tex. 525, 35 S. W. 1054; F. & M. Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966; Howell v. McMurray Lbr. Co., 62 Tex. Civ. App. 584, 132 S. W. 848; Cameron & Co. v. Trueheart, 165 S. W. 58.

But, as shown above, the constitutional lien in plaintiff’s favor was subordinate to the lien for the two $4,500 notes upon the entire plant, which was foreclosed. It does not appear that any of the machinery in the plant, which was covered by the various mortgage liens was ever so fixed to the building as to become a part of the realty, and therefore it does not appear that plaintiff’s lien ever did attach to any of the machinery; and in this connection it is to be noted further that the two liens upon the machinery given in 1912 for an aggregate sum of $7,800 antedated any possible lien in favor of plaintiff on said machinery by several months. Hence the lien in plaintiff’s favor never attached to any greater interest than the equity owned by the oil company after giving the mortgage lien to secure the two promissory notes for $4,500 each.

This suit is an equitable proceeding for foreclosure, and it is a familiar rule of equity that the court will never do a useless thing, in other words, will never sit to determine mere abstract questions of law, and that in order to invoke the aid of such a court it is incumbent upon the complaining party that he show a violation of some legal or equitable right which has resulted in injury or loss to him. Unless the property upon which plaintiff sought to enforce a lien was of a value in excess of the prior and superior liens, then plaintiff has lost nothing by its failure to secure a foreclosure of the constitutional lien above noted, and in the absence of any proof upon that issue it does not appear that the error in the judgment of the trial court, if error there be, in. refusing plaintiff the relief prayed for, was harmful. It is incumbent upon the plaintiff in error in this court to show, not only error in the judgment complained of, but that such error was reasonably calculated to cause, and probably did cause, some injury to him. Kynard v. Tucker, 171 S. W. 1086; Flynn v. Radford Gro. Co., 174 S. W. 902; Braun v. Hickman, 176 S. W. 879; P. & G. N. Ry. Co. v. Flanders, 165 S. W. 98; Renshaw v. Arnett, 158 S. W. 1197.

For the reasons just stated, the judgment of the trial court is in all things affirmed, without attempting to pass upon the merits of the various assignments of error presented in plaintiff in error’s brief.

Affirmed.

On Motion for Rehearing.

The trial judge found that at the time the oil company opened the account with plaintiff for the purchase of the building material afterwards furnished “there was no agreement between the parlies as to when the debt would become due-other than it should be paid along during the fall as had been the account the’year before.” But the court further found that the account did become due October 7, 1913.

In our opinion on original hearing those findings were accepted as correct, and the statement in that opinion that the material was sold under an agreement between the parties “that the amount of indebtedness therefor should be paid on October 7, 1913,” was intended merely as a brief summary of those findings. We did not intend to convey the idea that before the material was sold the parties specifically agreed on October 7, 1913, as the date of payment for such material.

Plaintiff in error now insists that there was proof tending to show that the property upon which it claimed a lien was worth more than the amount secured by the prior and superior liens for which the property was sold and bought in by W. A. McCall. The facts relied on to show this were the purchases by McCall of other and subsequent liens mentioned in our original opinion. But the record does not show that such purchases were offered as proof of value of the property, nor is there any showing of the prices paid. The finding of the trial judge quoted in our original opinion that there was an absence of proof of such values clearly shows that the facts now urged by plaintiff in error as evidence on that issue were not considered proof of that fact, if considered at all, and that finding has not been attacked by any assignment of error in the record.

The motion of plaintiff in error is overruled.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FARMERS’ & MERCHANTS’ NAT. BANK OF NOCONA v. H. C. LONDON & SONS et al.
    (No. 8541.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 17, 1917.)
    1. Appeal and Ebbob <@=>1071(5) — Review— Prejudicial Ebbob.
    In an action against a partnership on notes given by a surviving partner, son of deceased partner, it was alleged that the widow and, other heirs of deceased were partners in the business at the time the indebtedness was incurred, and the court found that the widow was a partner, and that she owned an undivided half interest in a homestead which was subject to plaintiff’s debt. Plaintiff claims that vendor’s lien notes against such homestead were paid off out of insurance money 'belonging to the firm at a time when it was insolvent, and that as creditor plaintiff is entitled to subject to its debt not only one-half of the equity in the lot owned by the widow before the discharge of the notes, but also a pro rata interest in the lot represented by the amount of the vendor’s lien notes so discharged with the insurance money. The record shows that the partnership afterward, after the execution of the notes sued upon, became insolvent and indebted to other creditors in largo sums of money, in the aggregate far in excess of plaintiff’s claim, and that, if the insurance money was a trust fund for the benefit of all the creditors, plaintiff’s share in the interest represented by the amount paid upon the vendor’s lien notes would be far less than one-half. Held, that plaintiff was not prejudiced by any error in failing to find that the notes were paid out of the insurance money.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4238.]
    2. Appeal and Ebbob <@=>1040(11) — Review-Harmless Ebbob.
    If thei-e was error in overruling plaintiff’s special exceptions to the plea of defendants praying for a recovery of one-half of the money paid to the plaintiff in an effort to reach a compromise, which was never consummated, such error was harmless in view of the evidence, which amply supported the claim.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4099, 4105.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    ' Suit by the Farmers’ & Merchants’ National Bank of Nocona against H. C. London & Sons and others. From a judgment granting a part of the relief asked, plaintiff appeals.
    Affirmed.
    W. T. Russell, of Nocona, for appellant. W. S. Jameson, of Montague, and J. A. Templeton, of Ft. Worth, for appellees.
   DUNKLIN, J.

H. C. London & Son, a partnership firm composed of H. C. London, the father, and C. H. London, the son, were engaged in the mercantile business in the town of Nocona. H. O. London died on January 15, 1907, leaving a widow, Mrs. P. W. London, and several sons and daughters surviving him, including O. H. London, the former partner. After the death of H. O. London, the Farmers’ & Merchants’ National Bank of Nocona advanced the sum of $1,000 in order to aid in the conduct of the business, for which it took a promissory note in that sum signed, “C. H. London, London & Son.” The bank also paid certain overdrafts in the aggregate $130.49, the proceeds of which were used for the same purpose.

The bank instituted this suit against Mrs. E. W. London, the widow, and all the heirs of H. O. London, consisting of his sons and daughters. Pending the suit Mrs. P. W. London and four of the children died, and the -heirs of those dying who were not already parties defendant were made such by plaintiff in its supplemental petition. Plaintiff instituted this suit to recover judgment upon the promissory note and overdrafts above mentioned, and alleged in its petition that said widow and heirs were all partners in said mercantile business at the time said indebtedness was incurred, and were jointly and severally liable therefor.

The evidence showed beyond controversy that O. H. London was the active member of the business after the death of his father, and his liability for the debts sued for was not controverted, but by appropriate pleas all the other defendants denied that they were partners, as charged by the plaintiff.

Prom a judgment in favor of plaintiff finding that O. H. London and his mother were liable as partners for the debts and awarding a recovery against C. H. London and the heirs of his mother upon that theory, but denying a recovery against the other defendants as partners, the bank has prosecuted this appeal.

The case was tried by the court without the aid of a jury, and his findings of fact and conclusions of law are set forth in the judgment rendered.

The court found that the children of H. O. London other than O. H. London were not partners in the business as charged by the plaintiff, but were interested in the stock of merchandise only as heirs of H. O. London. This latter finding is attacked by appellant as being unsupported, by the evidence, and several assignments are predicated upon that contention. All such assignments are overruled since we find in the record ample evidence to support the court’s finding.

In January, 1908, which is the same month that the note for $1,000 sued on by plaintiff herein was executed, one year after the death of H. O. London, a fire destroyed a considerable amount of the stock of merchandise on hand. At that time there were fire insurance policies upon the stock of about $10,000, and upon those policies there was collected from the insurance companies by compromise the sum of $5,000. This money went into the hands of Mrs. P. W. London. Prior to the death of H. O. London he had purchased a homestead for himself and wife for a consideration of $1,500, $000 of which was paid in cash at the time, and vendor’s lien notes for $900 were given which were unpaid at the date of his death. After the collection of the insurance money the outstanding vendor’s lien notes against the homestead were paid off. The trial court found that Mrs. London owned an undivided one-half interest in the homestead which was subject to the plaintiff’s debt and did subject the same to the judgment rendered in plaintiff’s favor.

Appellant insists, in effect, that the evidence shows that the vendor’s lien notes against the homestead were paid off out of the insurance money at a time when the partnership firm of O. H. London and Mrs. P. W. London was insolvent, and that therefore plaintiff, as creditor, was entitled to subject to its debt not only one-half of the equity in the lot owned by Mrs. London before the discharge of the said vendor’s lien notes, but also a pro rata interest in the lot represented by the amount of the vendor’s lien notes so discharged with the insurance money.

In answer to that contention it is sufficient to say: First, no evidence is pointed out by appellant to show that the vendor’s lien notes were paid out of the insurance money; in fact, appellant, in its brief, cites testimony showing that the notes were paid by one McBroom, and no testimony is cited to show that the money so used by him was a part of the proceeds of the insurance policies; second, the record further shows that the partnership firm afterward became insolvent and indebted to other creditors in large sums of money, in the aggregate far in excess of plaintiff’s claim, and if the insurance money was a trust fund for the benefit of all the creditors, then the plaintiff’s share in the interest represented by the amount paid upon the vendor’s lien notes would be far less than one-half, and the remainder would be in other creditors; in other words, if the interest represented by the amount of the vendor’s lien notes so discharged should be subjected to the payment of the indebtedness of the partnership firm, then all the creditors would share alike in it, and, if so, then plaintiff’s interest therein would be less than the interest awarded to it by the court.

We are of opinion further that there was ample evidence to support the court’s finding that one-half of the $200 paid to the plaintiff by the children of H. O. and Mrs. P. W. London, who were not partners in the business, in an effort to reach a compromise of plaintiff’s claim against them, but which compromise was never consummated, should be restored to them.

If there was error in overruling plaintiff’s special exceptions to the plea of defendants praying for a recovery of one-half of the money so paid to the plaintiff in an effort to reach such compromise, which was never consummated, such error was harmless in view of the evidence which amply supported said claim.

The case being tried before the court without the aid of a jury, there was no reversible error in allowing the witness Wade London, over the objections of the plaintiff, to testify that he did not consider that he was a partner in the mercantile business, since there was other testimony amply showing that fact. Furthermore, we fail to see how the admission of certain records in the bankruptcy proceedings instituted against the partnership firm resulted in any harmful effect upon the plaintiff.

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes