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    FERRELL-MICHAEL ABSTRACT & TITLE CO. et al. v. McCORMAC et al.
    (No. 8272.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 27, 1915.
    On Appellees’ Motion for Rehearing, Feb. 5, 1916.
    Appellants’ Motion for Rehearing Denied Feb. 5, 1916.)
    1. Principal and Surety <@=wl47(l) — Security Given to Surety — Right of Creditor.
    Where the maker of a note gave the surety a chattel mortgage, the payee is entitled to benefit of the mortgage.
    [Ed. Note. — -For other cases, see Principal and Surety, Cent. Dig. §§ 402, 405%, 4b7, 408% ; Dec. Dig. &wkey;147(l).]
    2. Chattel Mortgages &wkey;>274 — Enforcement-Limitations.
    Where the maker of a note mortgaged his personal property to protect a surety, and then transferred the property to a corporation organized to take over his business, limitations did not run in favor of the corporation by reason of its holding the property against the right of the payee to enforce the mortgage.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. § 561; Dec. Dig. <&wkey;274.]
    3. Chattel Mortgages <&wkey;47 — Description— Sufficiency.
    A chattel mortgage on property used in ab-tract business which described it as consisting of abstract books and appurtenances all on described premises is sufficiently definite to warrant foreclosure; for parol evidence is admissible to show what articles are included within the general description.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 87, 88, 96-103; Dec. Dig. <&wkey;47.]
    4. Continuance &wkey;>22 — Right to.
    Where defendant against whom, intervener had set up claim of a laborer’s lien answered that intervener had drawn checks and created liabilities against defendant in excess of the amount of his claim, and asked for a continuance to procure testimony to sustain the defense, and intervener on trial clearly explained the nature of the claims, etc., while defendant made no showing of ability to sustain its charges or to subsequently obtain evidence sought, it was not an abuse of the trial court’s discretion to deny continuance.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. &wkey;22.]
    5. Master and Servant &wkey;>82(2) — Laborer's Liens — Right to.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, declaring that, whenever any clerk, accountant, bookkeeper, factory operator, servant, mechanic, or common laborer shall perform labor, he shall have a lien on all products, machinery, .or appliances of the master, etc., in-tervener, who was engaged to manage an abstract business, but performed much clerical work himself writing up the books and preparing abstracts, was entitled to a laborer’s lien, although, as manager or superintendent, he could obtain no such lien.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 129, 130; Dec. Dig. <&wkey; 82(2).]
    6. Courts <&wkey;121(l) — Texas District Court —Jurisdiction.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1848, declaring that before a case is called for trial additional parties may, when they are necessary or proper parties, be brought in, the district court, which had jurisdiction of an action on notes and to foreclose a mortgage, may allow one asserting a laborer’s lien against the property of defendant to intervene, although the amount of his claim was less than the jurisdictional amount of the district court; such in-tervener being a proper, if not a necessary, party.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 413, 416, 426; Dec. Dig. &wkey; 121(1).]
    7. Justices oe the Peace <&wkey;129(3) — Judgment — Collateral Attack'— Parties Entitled to Make.
    A judgment of a justice of the peace foreclosing a laborer’s lien cannot be collaterally attacked by parties or privies on the ground that the property on which the lien was claimed exceeded the jurisdictional amount of justice court, where the amount of the claim was within the jurisdiction of the justice, and the record did not show the value of the property on which the lien was sought to be imposed.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 410; Dec. Dig. <&wkey;> 129(3).; Judgment, Cent. Dig. § 912.]
    8. Appeal and Error <&wkey;880(3) — Necessity oe Appeal.
    A decree against a defendant who did not appeal will not be disturbed on the appeal of the other defendants not interested in that particular.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3588; Dec. Dig. <@=>880(3).]
    On Appellees’ Motion for Rehearing.
    9. Judgment &wkey;>495(l) — Collateral Attacks — Presumption.
    Upon collateral attack on a judgment of a domestic court it will, where the action was within the court’s general jurisdiction be presumed that the necessary jurisdictional facts existed, though they do not appear of record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 549%, 933; Dee. Dig. &wkey;495(l).]
    10. Judgment <&wkey;818(l) — Collateral Attack-Foreign Judgments.
    Judgment of a court of foreign jurisdiction can be collaterally attacked by parties or privies, even by evidence dehors the record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1458, 1459; Dec. Dig. &wkey;818(l).]
    11. Judgment <&wkey;494 — Collateral Attack— ‘ ‘Party’ ’ — “Privy. ”
    The term “parties” in the sense of one who is concluded by a judgment includes all those directly interested in the subject-matter and who had the light to control or defend the proceedings and appeal, while “privies” are those who succeeded to the lights or property of parties to the judgment; hence a chattel mortgagee was not a “party” nor “privy” to an action against the mortgagor to enforce a laborer’s lien on his property, and might collaterally attack the judgment by evidence dehors the record on the ground that the court was without jurisdiction (citing Words and Phrases, Second Series, Party; see, also, Words and Phrases, First and Second Series, Privy).
    TEd. Note. — For other cases, see Judgment, Cent. Dig. § 932; Dec. Dig. &wkey;494.]
    12. Justices oe the Peace <&wkey;44(2) — Jurisdiction — Laborers’ Liens — Eneorcement.
    In a proceeding to enforce a laborer’s lien, unlike one to enforce a landlord’s lien, the rule applicable to contract liens that the value of the property, and not the demand, determines the jurisdiction of the court, obtains; hence justice court is without jurisdiction of a proceeding to enforce a laborer’s lien on property of a value exceeding $200.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 158, 162, 164, 167; Dec. Dig. <@=344(2).]
    13. Appeal and Error <&wkey;1234(5) — Super-sedeas Bond — Liability.
    Where a supersedeas bond for appeal from a judgment foreclosing a chattel mortgage was conditioned to perform any judgment of the Court of Civil Appeals, and the judgment was affirmed, sureties are liable only for the costs, and no personal judgment can be rendered against them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4773, 4775; Dec. Dig. <&wkey;> 1234(5).]
    Appeal from District Court, Eastland County.
    Action by Mrs. C. B. McCormac and others against the Ferrell-Michael Abstract & Title Company and others, in which R. L. Davenport intervened, and to which George Vaught and another were made parties defendant, From a judgment for plaintiffs and intervener, the named defendant and the im-pleaded defendants appeal.
    Affirmed in part and reversed and rendered in part.
    Earl Conner and M. J. Smith, both of East-land, for appellants. J. R. Stubblefield, of Eastland, for appellees.
   CONNER, C. J.

Mrs. C. B. McCormac, C. A. Gray, and J. W. Ward joined in the institution of this suit in the district court of Eastland county, seeking to recover a judgment upon certain promissory notes severally made to these parties. It was alleged that the note to Mrs. C. B. McCormac, which, principal, interest, and attorney’s fees, amounted to $512.60, had been executed by J. M. Ferrell, as principal, and J. R. Stubblefield, as surety, that the note payable to C. A. Gray amounting at the date of the judgment, as found by the court, to $606.68, had been executed by J. M. Ferrell, J. R. Stubblefield, and W. B. Ferrell, and that the note payable to J. W. Ward, at the date of the judgment amounting in all to $583.15, had been executed by J. M. Ferrell, W. S. Michael', and J. R. Stubblefield. It was alleged that at the ■date of the execution of the McCormac note J. M. Ferrell was the owner of a certain abstract business in the town of Eastland, and that, as such owner, he had executed and delivered to the said J. R. Stubblefield a certain mortgage on certain property described in the petition to secure the payment, among others, of the said note to said C. B. Mc-Cormac, and that said mortgage had been duly recorded in the proper records of East-land county; that at a later date not named ■the Ferrell-Michael Abstract & Title Company was incorporated for the purpose of doing an abstract business in Eastland county, and that all the books, papers, records, and office fixtures and appurtenances theretofore belonging to J. M. Ferrell, and which had ■been mortgaged as alleged by J. M. Ferrell to secure the McCormac indebtedness, “became the property of the Ferrell-Michael Ab.stract & Title Company, subject to the mortgage above described,” and that the abstract company was in possession of all of the property and asserting some right or title to the same. It was further alleged that 33 shares of the capital stock of said corporation owned by W. S. Michael had been duly mortgaged to J. W. Ward, C. A. Gray, and C. B. Mc-Cormac, for the purpose of securing the respective plaintiffs in the several notes owned by them.

Later, by an amended petition, the plaintiffs made George and Nora Vaught parties defendant, alleging, in substance, among other things, that subsequent to the happenings hereinbefore recited, and prior to the institution of the suit, a judgment had been rendered in the justice’s court of precinct No. 1 of Eastland county, in the case of M. J. Smith v. the Ferrell-Michael Abstract Company, for the sum of $117.50, with interest and costs, purporting to foreclose a “laborer’s lien on the books, papers, records, a Remington typewriter, an Underwood typewriter, and all other fixtures and appurtenances belonging to the Ferrell-Michael Abstract & Title Company, including the record pertaining to the titles to land in Eastland and Stephens counties, Tex.,” which said judgment had been transferred to Nora Vaught, and under and by virtue of which she was asserting some right, title, or interest to the judgment. It was alleged:

“That the said judgment was void because it attempted to foreclose a laborer’s lien on personal property in excess of the sum of $200; that it attempted to foreclose a laborer’s lien on property of the value of more than $1,000.”

The plaintiffs sought to foreclose the mortgage made to J. R. Stubblefield upon the property therein described as against all parties to the suit. They also sought to foreclose the mortgage upon the 32 shares of capital stock that had been issued to W. S. Michael.

All those against whom complaint was made as above stated were made parties defendant, after which R. L. Davenport filed a petition of intervention seeking to foreclose a laborer’s lien set up by him upon the property described in the Stubblefield mortgage, and in the plaintiff’s petition. A trial was had before the court without a jury, and resulted in a judgment in Mrs. C. B. McCor-mac’s favor against J. M. Ferrell, as principal, and J. R. Stubblefield, as surety, on the note made to her, with a foreclosure of the mortgage lien evidenced by the Stubblefield mortgage upon the property of the abstract company. C. A. Gray and J. W. Ward also recovered judgment for the amounts by them as severally sought, with a foreclosure in their favor upon the 32 shares of the Michael capital stock of the abstract company. The court denied the prayer of these parties that the Stubblefield mortgage be foreclosed in their favor. The court further found and adjudged in favor of R. L. Davenport as against the abstract company for the sum of $130, to secure $60 of which a lien was declared and foreclosed upon the property in controversy 'as against all parties save the lien foreclosed in favor of Mrs. G. B. Mc-Cormac, which was made first in the judgment. It was further found and adjudged that the said judgment of the justice’s court in favor of M. J. Smith against the Ferrell-Michael Abstract & Title Company, under which George and Nora A^aught claimed, was “void, because the plaintiff sought in said judgment to foreclose a laborer’s lien on property of value in excess of $200.” The Ferrell-Michael Abstract & Title Company and George and Nora Vaught severally filed motions for new trial, which were overruled, and they alone have prosecuted appeals.

By exceptions to the petition the judgment, and in other ways, it is contended that Mrs. C. B. McCormac was not entitled to the benefit of the mortgage made by J. M. Ferrell to his surety, J. R. Stubblefield. But in so adjudging we think the court was correct as against the original title of the abstract compány. While made direct to J. R. Stubblefield, the surety, one of its specific purposes, as therein- recited, was to secure the payment of the note declared upon by Mrs. C. B. McCormac. The note was unpaid, oiie mortgage had' been duly recorded prior to the abstract company’s acquisition of the property, the mortgagee, Stubblefield, was consenting thereto, and no repudiation of the mortgage of which it is shown Mrs. Mc-Cormac had notice has been pointed out. Under such circumstances we think the mortgage inured to the benefit of Mrs. C. B. Mc-Cormac, that the statute of limitations did not run against her right, and that the title of the abstract company to the books and other property acquired from J. M. Ferrell was in all respects subordinate to the claim of C. B. McCormac. As said in a recent work on Chattel Mortgages (see Jones on Chattel Mortgages [5th Ed.] § 512):

“The mortgage given to a surety inures to the benefit of the creditor to whom the surety is bound; and upon the 'bankruptcy of the mortgagor a court of bankruptcy will enforce the trust. If the mortgage upon its face be conditioned to indemnify the mortgagee against a liability upon certain debts, it expresses a trust; and one who purchases the mortgage, or takes an assignment of it, takes it with notice of such trust and subject to it. The sale and assignment are then void in equity, and the assignee will be regarded as merely holding the legal title to the property as trustee in place of the original trustee.”

See, also, Nat. Shoe & Leather Bank of Auburn et al. v. Small et al. (D. C.) 7 Fed. 837; Hanrion v. Hanrion, 73 Kan. 25, 84 Pac. 381, 117 Am. St. Rep. 453.

That the plaintiffs’ action was not barred by limitation, as urged, is apparent in view of the fact that the action was not one for conversion of the property described in the petition, as suggested, but merely one for the foreclosure of a mortgage lien that had been duly recorded before the incorporation of the abstract company, and before, of course, its acquisition of the mortgaged property from J. M. Ferrell. Such record effected the abstract company with notice of the mortgage and of O. B. McCormac’s equitable right therein, notwithstanding there may have been a want of actual notice thereof on the part of some of the stockholders of incorporators, as was testified. It is not pretended that the note of C. B. McCormac was barred by limitation, or that she at any time was given notice that the abstract company had or would repudiate the mortgage and hold the mortgaged property in hostility thereto. The mere possession and use of the property under a claim of ownership was not necessarily inconsistent with the terms and legal effect of the mortgage, and certainly not sufficient to establish that character of adverse possession which would be necessary to bar C. B. McCormac’s action to foreclose the mortgage declared upon. All assignments of error involving these questions are accordingly overruled.

By other assignments the sufficiency of the description of the property as described in the mortgage, in the plea of intervener, and in the judgment is attacked. Substantially, the description in the mortgage is as follows:

“Two league books, four section books, two lot books, probate index, general index, maps, supplies and machine now on hapd and in use, and that are hereafter acquired aiid used 'by me, the said J. M. Ferrell, in conducting and continuing in the abstract business, this day purchased by me from the firm of Ferrell & McCormac, said firm being composed of the J. M. Ferrell and C. B. McCormac, said above-described property being in the ofiice and vault at the rear of the building situated on lot No.- 6, Blk. —/Bl, in the town of Eastland, Eastland county, Texas, and all appurtenances thereto belonging or which may hereafter be acquired.”

The description of the property in the judgment is yet, if anything, more complete, and is, we think, on the whole, sufficient. Again quoting from Mr. Jones on Chattel Mortgages, §§ 53, 54, and 54a, it is said:

“It is not necessary that the property should be so described as to be capable of being identified by the written recital or by the name used to designate it in the mortgage. Parol evidence is admissible to show that the particular article is included within the general words of a description, though not to ‘supply an essential word which has been omitted. Thus, under a mortgage of all of the stock, tools, and property belonging to the mortgagor in and about a wheelwright’s shop occupied by him, parol evidence is admissible to show what articles were in and about the shop when the mortgage was made. It is obviously impossible in most cases to set forth on the face of the mortgage all the articles embraced in it with such precision that any one, by a mere inspection of the mortgage, without reference to any other source of information, can identify them. Resort must generally be had to parol evidence to identify the property mortgaged, although it be enumerated and described with the utmost minuteness. Such evidence is no more required to identify property described as all one’s household furniture than it is when the number of chairs, tables, and other articles is given. * * * A description which will enable third persons, aided by inquiries which the instrument itself suggests, to identify property, is sufficient. * * * Written descriptions of property are to be interpreted in the light of the facts known to and in the minds of the parties at the time. They are not prepared for strangers, but for those they are to affect — the parties and their privies. A subsequent purchaser or mortgagee is supposed to acquire a knowledge of all the facts so far as may be needful to his protection, and he purchases in view of that knowledge. * * * A mortgage which describes the property as ‘one bay horse, aged six years,’ in the mortgagor’s possession in a certain city, is not void by reason of the insufficiency of description, though the description would not enable a third person, without the aid of facts n.ot contained in the mortgage, to identify the horse. But the description would enable a third person, aided by inquiries which the instrument itself suggests, to identify the property, and is therefore sufficient. A mortgage of ‘50 head of steers about 20 months old, now owned by me and in my possession on my farm’ in a certain township, is sufficient against subsequent purchasers, though some of the cattle were bought in an adjoining township into which the farm extended.”

It is to be noted that the property under consideration is described in the mortgage as general index maps, supplies, and machines “now on hand and in use by the said J. M. Ferrell in conducting and continuing his abstract business,” purchased by him from the firm of Ferrell-Michael Abstract & Title Company on the day the mortgage was executed. The property is further described as “feeing in tfee office and vault at tfee rear of the feuilding situated on lot No. 6, Block —/Bl, in tfee town of Eastland, Eastland county, Texas.” In tfee light of these references and of tfee authority from which we have quoted, it is not to be doubted, we think, that an identification of the property may easily be made by resort to competent parol proof, and we accordingly overrule all objections to the plaintiffs’ petition, to the judgment, and other proceedings made upon the ground of insufficient description of tfee property upon which the court foreclosed C. B. McCormae’s lien.

A number of assignments of error relating to the claim of intervener, R. L. Davenport, are presented. R. L. Davenport filed his plea of intervention on the 20th day of January, 1915, alleging, among other things, a contract of employment between him and the abstract company at a salary of $60 per month. He further alleged that upon such contract of employment there was a balance due of $150; that his employment required certain work in making abstracts from appellant’s books, and in transcribing from the county records certain matters pertaining to land titles, and placing the same upon appellant’s books. The particulars of the work which he alleged he did were set out, and intervener declared that to secure the unpaid balance due him he was entitled to the laborer’s lien provided for by statute; that he had secured said lien in the manner provided for, and he sought its foreclosure. Later, on the same day, the abstract company filed its first supplemental answer to such plea, denying that it was due the intervener any sum whatever, and alleging that during the time the intervener was in its employment he had charge of the books and accounts until he ceased said employment on the 29th day of December, 1914; that during said time the intervener had made all charges and collected the amounts due the abstract company, which collections he retained; that there appeared on the books of the abstract company outstanding accounts kept by intervener in a sum much greater than sufficient to pay off and discharge all claims asserted by him; that through inadvertence or mistake he (the intervener) had made many collections of accounts, and failed to make the proper credit on the books of appellant, and failed to charge himself with such collections; that the intervener had also issued corporation checks to various parties at tfee time unknown to the abstract company in payment of his individual indebtedness; and that thereby there were outstanding legal liabilities against the abstract company in a greater amount than would be sufficient to offset the intervener’s claim. It was further alleged that the appellant company did not know the true state of the accounts; that the books were then in the hands of an accountant for examination and for the purpose of ascertaining tfee true condition; but that time sufficient had not as yet elapsed to enable the abstract company to learn from such persons whose names were on the books whether the accounts had been paid, just how much had been collected, the exact amount that had been appropriated by in-tervener, etc. And appellant, in close connection with its said answer, made a written application for a continuance of the cause to enable it to obtain tfefe information indicated by its answer, and which, it was alleged, would be sufficient to establish a perfect defense to any alleged indebtedness of the intervener.

The application for a continuance was overruled, to which action the appellant company duly excepted, and the court required the trial to proceed upon the next day, to wit, on January 21, 1915. We have carefully examined the motion and considered the action of the court complained of, but have finally concluded that we would not be justified in reversing the judgment on this account. The motion for continuance, we think, was addressed to the discretion of the court. The intervener, Davenport, testified fully as to his method of bookkeeping, explained a number of the failures to make proper entries, etc., and the court made a corresponding deduction in his claim. There seems to be no evidence by persons named in the motion for continuance, or whose names appear upon the books, of the payment of any sums due the abstract company for which credit was not given, nor does it appear that there were any checks issued by the intervener not accounted for, and no suggestion was made by appellant in its motion for new trial, which was filed on January 29th, that during or since the trial any witness had been discovered who could or would be able, by his testimonyj to sustain the suppositional facts in the abstract company’s answer. We think, therefore, the assignments and propositions relating to this matter must be overruled.

It is also urged that the court should have stricken out the plea of intervention on the ground that the intervener did not show himself to be within that class of persons entitled to a laborer’s lien. The statute invoked by the intervener (4 Vernon’s Sayles’ Texas Oiv. Statutes, art. 5644), so far as necessary to quote, reads:

“That whenever any clerk, accountant, bookkeeper, artisan, craftsman, factory operator, mill operator, servant, mechanic, quarry man, or common laborer, farm hand, male or female, may labor or perform any service in any office, store, * * * by virtue of any contract or agreement, written or verbal, with any person, employer, firm, corporation, or his, her, or their agent or agents, receiver or receivers, trustee or trustees, in order to secure the payment of the amount due or owing under such contract or agreement, written or verbal, the hereinbefore mentioned employes shall have a first lien upon all products, machinery, tools, fixtures, appurtenances, goods, wares_, merchandise, chattels, * * * or thing or things of value of whatsoever character that may be created in whole or in part by tbe labor of, or that may be used by such person or persons, or necessarily connected with, the performance with such labor or service, which may be owned by or in the possession or under the control of the aforesaid employer, person, firm, corporation, or his, or their agent or agents, receiver or receivers, trustee or trustees,” etc.

The intervener alleged, in substance, that the defendant corporation was engaged in making abstracts to land, perfecting land •titles, and in transcribing the various instruments of record in the office of the county clerk of Eastland county, Tex., which affected titles to lands, and recording and indexing such instruments on the books of the corporation kept for that purpose, and that the “intervener was employed to manage, supervise, and control said abstract business of defendant corporation, and labored daily and continually from May 14, 1914, to December 29, 1914, making abstracts,, and, when not so employed, taking off from the deed records of Eastland county and recording and indexing on the books of defendant corporation instruments affecting land titles; that the labor so done and performed by this intervener is now contained on the different books of the defendant corporation and the indexes thereto; that the intervener also kept books of accounts for said defendant corporation in which all debts and credits are shown,” etc. The evidence of the character of the intervener’s employment and labor corresponds very closely to his allegations as above set out, and the appellant company insists that its case comes within the ruling in the cases of Lindale Brick Co. v. Smith, 54 Tex. Civ. App. 297, 118 S. W. 568; Bush Bros. Lumber & Milling Co. v. Eastwood, 132 S. W. 389; Hatton v. Bodan Lumber Co., 57 Tex. Civ. App. 478, 123 S. W. 163. In the case first cited it was held that one employéd as a superintendent of a brick company was not entitled to a lien for his services, although he at times performed the labor of an ordinary hand, inasmuch as a lien was not given in favor of persons not enumerated, although they may occasionally perform the duties of one of the enumerated classes. The other cases cited are of like effect. W-e have no disposition to controvert the holdings in these cases, and, while the intervener’s ease is not without difficulty, we have finally concluded that we cannot disturb the trial court’s determination that the intervener brought himself within the statute conferring the line. It is true he alleged and testified that he was employed to manage and control the appellant company’s abstract business, but on the whole, as alleged and proved, it seems that his employment and service comprehended the service also of a clerk, one of the classes of persons specifically named in the article of the statute that we have quoted. In the case of Lindale Brick Co. v. Smith, supra, it appears that the manager, Smith, in addition to the duties of management and superintendence, also performed at times labor of the character ordinarily performed by a common servant. This, it was held, did not bring Smith within the designated class, but emphasis is given to the fact there shown that it did not appear that such ordinary labor was required of Smith by the terms of his contract of employment. The court said:

“There is nothing, however, to negative the inference that those services [the ordinary services referred to] were performed from choice, rather than in compliance with the exactions of a contract. For aught that'appears to the contrary, he was empowered to employ others to do all the manual labor which he performed about the plant.”

In the case before us, however, the inter-vener’s allegations and testimony as a whole indicated that his contract of employment contemplated, not only the supervision and management of the business, but also the performance of the necessary clerical work upon the books of the company. Indeed, it appears that during his employment he alone did all the work necessary in the prosecution of the business, and nothing in the allegation or testimony indicates that it was contemplated, or that he was authorized to employ others to do the clerical work, and at the same time draw the stipulated salary as manager. We think, therefore, that it should be held that in cases like this, where the contract of employment contemplates the performance of services to secure the payment of which the statute was evidently enacted, that the statute should be given effect, even though the clerk, servant, or other person named in the statute was also required to perform services more properly perhaps relating to the functions of a superintendent or manager, who, it appears, is not included within the protected classes of the statute. We feel, therefore, that we must overrule the contention noted. Lindale Brick Co. v. Smith, 54 Tex. Civ. App. 297, 118 S. W. 568.

It is further insisted in various forms that, inasmuch as the intervener’s claim amounted to but $150, the court was without jurisdiction to entertain it. But this contention likewise, we think, must be overruled. Our statutes provide that:

“Before a case is called for trial, additional parties may, when they are necessary or proper parties to the suit, be brought in by proper process, either by the plaintiff or the defendant, upon such terms-as the court may prescribe; but such parties shall not be brought in at such a time or in such a manner as unreasonably to delay the trial of the case.” 2 Vernon’s Sayles’ Tex. Civ. Statutes, art. 1848.

It is doubtless true that the intervener was not a necessary party, and that the court, in the exercise of its discretion, might have refused to entertain his plea, but we think he was not an improper party. The action as instituted by the original plaintiffs was to foreclose a mortgage upon specified property upon which the intervener, by his plea in intervention, also asserted a lien, and it is a favorite doctrine of equity, in order to avoid a multiplicity of suits, that parties having a common interest in the subject-matter may join, or at least are proper parties, even though their asserted rights may not have a common origin. See 16 Cyc. 65, and numerous authorities cited in note 79. See, also, 11 N. Y. Anno. Dig. §§ 74207, 74208, and authorities cited in notes. 'See, also, section 783, Jones on 'Chattel Mortgages, and cases cited in notes 108 and 109; Polk v. King, 19 Tex. Civ. App. 666, 48 S. W. 601, and cases therein cited. It is to be noted that the in-tervener was not the original actor — not the one who first sought an exercise of the court’s jurisdiction. The plaintiffs in the suit were the original movants, and presented a case over which the court had undoubted jurisdiction, both as to the parties and as to the subject-matter, and intervener’s attitude was that of one who merely interposes a claim to the subject-matter over which the court already had jurisdiction, and the case was not as if the intervener whose demand was below the jurisdiction of the court, had first sought to maintain the suit.

It appearing that the court already had acquired jurisdiction of the subject-matter, and having already exercised his discretion in entertaining the plea, we think the action of the court in this respect must be sustained, regardless of the amount of the intervener’s demand.

In the form of exceptions to the plaintiff’s petition, objections to evidence, and to the court’s final decree, complaint is made of the action of the court relating to the judgment of the justice court in favor of M. J. Smith against the appellant abstract company, by virtue of which the plaintiffs alleged Georgé and Nora Vaught were claiming some right. Besides costs, the judgment was for the sum of $117.50, and purports to foreclose a laborer’s lien on part or all of the property upon which the plaintiff sought to foreclose the mortgage. The plaintiffs alleged, among other things, that:

“The said judgment was void because it attempted to foreclose a laborer’s lien on personal property in excess of the sum of $200; that it attempted to foreclose a laborer’s lien on property of the value of more than $1,000,” etc.

There were other points of attack upon the judgment, but none, it seems, which plain-' tiffs attempted to support by evidence. R. L. Davenport, however, was permitted to testify over the objection of defendants that the books, etc., upon which the laborer’s lien had been foreclosed in the justice court exceeded the sum of $200 in value, and the court adjudged:

“That.the judgment rendered by the justice court of precinct No. 1 of Eastland county, Tex., in the cause of M. J. Smith v. Ferrell-Michael Abstract & Title Company, in cause No. 3129, be, and the same is hereby, declared null and void, and of no force or effect whatever as against all parties to this suit, and that the claim of George Vaught and Nora Vaught be hereby declared to be null and void, and the said George Vaught and Nora Vaught are hereby perpetually enjoined from claiming or asserting any rights, title, or interest on account of the said judgment having been transferred to them or either of them, and the plaintiff Mrs. C. B. McCormac, C. A. Gray, and J. W. Ward are hereby given a judgment for any and all costs which have accrued in this case on account of the said George Vaught and Nora Vaught being made parties to this suit, and for which let execution issue as against the said George Vaught and Nora Vaught, or either of them.”

We are of opinion that the court erred in his ruling and decree on this branch of the case. Contrary to what has been frequently declared in cases of contract liens, it has been held in a number of cases that, where a foreclosure of a statutory lien is sought, the amount and character of plaintiff’s debt or demand determines the jurisdiction of the court, and not the value of the property upon which the foreclosure is sought. See Lawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1129; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312; Allen v. Glover, 27 Tex. Civ. App. 483, 65 S. W. 379; Manire v. Wilkinson et al., 136 S. W. 1152. The principle of these cases evidently is that, where the plaintiff establishes a debt within the jurisdiction of the court, and such debt is of the character within the statute giving the lien, the foreclosure upon so much of the property as is necessary to satisfy the judgment follows as a matter of course. In such cases the real controversy is over the amount of the debt, and its character and the lien is but an incident. In all cases where this is true, and where the validity of the lien is in reality not questioned (except as otherwise controlled by statute as in cases of foreclosure of liens upon lands), it seems to the writer, at least, that the principle of the cases just cited is sound, whether the lien asserted arises by contract or statute; for in neither case does the law contemplate an appropriation of more of the property upon which the lien rests than is necessary to satisfy the debt. But, however this may be, we all concur in the distinction made by the above cases between contract and statutory liens, and in accordance therewith are of opinion that the judgment of the justice court in favor of M. J. Smith against the abstract company foreclosing the laborer’s lien was not open to attack upon the only ground upon which it seems the judgment of its invalidity rests.

We think the judgment below in this respect was wrong for yet another and perhaps a better reason. The judgment is entirely regular upon its face. The amount for which recovery was sought was $117.50, an amount clearly within the jurisdiction of the justice court. The property upon which the lien was foreclosed was personal property, the value of which, if it could make any difference, does not appear on the face of the judgment to be beyond amounts over which the justice court by statute has been given jurisdiction. It reads as follows:

“M. J. Smith v. Ferrell-Michael Abstract & Title Company.
“In the Justice Court of Precinct No. 1, Eastland County, Texas.
“On this the 8th day of July, A. D. 1914, came on to be heard the cause of M. J. Smith v. Ferrell-Michael Abstract & Title Company, and the plaintiff, M. J. Smith, appearing by Ms attorney and announced ready for trial, and the defendant having waived process and having entered its appearance herein, but filed no pleadings in this court or made any defense against the claim of said plaintiff, and jury being waived, and matters of fact as well as of law being submitted to the court, and the court, after hearing the evidence adduced and the argument of counsel is of the opinion that the plaintiff, M. J. Smith, should recover of and from the defendant, Ferrell-Michael Abstract & Title Company, a corporation, the sum of $117.50, and all costs in this behalf expended, and, it further appearing to the court that the plaintiff has a valid and subsisting laborer’s lien upon the following described property of the defendants: 3 league books of Eastland county, Tex.; 4 section books of Eastland county, Tex.; 1 order book for Eastland county, Tex.; 3 lot books for Eastland county, Tex.; 2 typewriters, one Remington, one Underwood No. 5; 3 section books of Stephens county, Tex.; 1 league _ book of Stephens county, Tex., marker; section book of Eastland county, Tex.; 1 probate index of Eastland county, Tex.; 1 general index of Eastland county, Tex.; 1 bookcase; 1 table; about 511 duplicate carbon copies of abstracts of title of Eastland county; about 100 copies of deed records of Eastland county, Tex., and about 36 copies of deed records of Stephens county; 1 Stephens county index — it is therefore ordered, adjudged, and decreed that the laborer’s lien as it existed on the 27th day of March, 1914, be and the same is hereby foreclosed upon the property described belonging to the defendant, Ferrell-Michael Abstract & Title Company; and it is hereby further ordered and decreed that said property be sold in accordance with law as provided for the sale of personal property under ■ execution, and that the proceeds realized from such sale be applied in liquidation of this judgment, and, if the same be insufficient to satisfy the same, that the balance be made out of any other property of the defendants subject to execution.”

There is evidence in the record tending to show that hy virtue of the judgment quoted an order of sale was issued out of the justice court in obedience to which the property described in the judgment was sold to Virgil Love on December 29, 1914, and by him sold to H. C. Pope on December 31, 1914, and neither Love nor Pope has been made a party to this suit. But, regardless of considerations that these facts may suggest, we are of opinion that the court was without power to declare the judgment void.

The attack upon the judgment was collateral, and not direct, as evidently was the view of the plaintiffs and of the court below. As said by our Supreme Court in the case of Crawford v. McDonald, 88 Tex. 626, loc. cit. 630, 33 S. W. 325.

“A direct attack on a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of same, in a proceeding instituted for that purpose, such ,as a motion for rehearing, an appeal, some form of writ of error, a bill of review, an injunction to restrain its execution, etc. A collateral attack on a judgment is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes aforesaid, as where, in an action of debt on a judgment, defendant attempts to deny the fact of indebtedness, or where, in a suit to try the title to property, a judgment is offered as a link in the chain of title, and the adverse party attempts to avoid its effect.”

In O’Neill v. Potvin, 13 Idaho, 721, 93 Pac. 20, 21, 257, citing 1 Black on Judgments, § 252, it is said that the attack upon the judgment is a “collateral attack” if the action or proceeding has an independent purpose and contemplates some other relief or result than the mere setting aside of the judgment, although the setting aside of the judgment may be necessary to secure such independent purpose. Where an action was instituted to quiet title to land, and in order to so quiet the title a judgment must be held to be void, the action is clearly a collateral attack on that judgment. Tested by these principles and numerous other authorities that might be cited of like effect, it seems clear that the attack upon the justice’s judgment is collateral, as contradistinguished from direct. The plaintiffs’ suit was instituted for the purpose of foreclosing a lien upon the property described in their petition, and as incidental merely to this, and for the evident purpose of establishing the priority of their mortgage lien the attack was made upon the judgment of the justice’s court Not only the authorities cited, but numerous others that might be cited (see Scudder v. Cox, 35 Tex. Civ. App. 416, 80 S. W. 872, Newman v. Mackey, 37 Tex. Civ. App. 85, 83 S. W. 31, Brooks v. Powell, 29 S. W. 809, and Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325, and cases cited), establish the doctrine that a judgment of a court of competent jurisdiction regular on its face cannot be declared invalid on a collateral attack, and in this respect there can be no difference between the judgment of the justice court and that of any other court of general jurisdiction. Within the limits assigned to them by the statute such courts are treated as courts of general jurisdiction. See Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Long v. Brenneman, 59 Tex. 210; Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876.

It'follows, we think, that no right or interest, if any, of appellants George and Nora Vaught, or of other persons, whether parties to this proceeding or not, can be abridged or effected by a decree in the present suit, and the judgment of the court below of contrary effect must be set aside and so determined.

Appellants also urged objection to the foreclosure of the plaintiff’s mortgage upon the shares of stock issued to the defendant Michael, but, inasmuch as Michael has not complained of the decree in this respect, we fail to see in what way either of the appellants have cause of complaint. Nor has any complaint of which we can take notice been made of the failure of the court to foreclose the mortgage declared upon in the plaintiffs’ petition in favor of the plaintiffs Gray and Ward. This branch of the subject, therefore, will not be further noticed. On the whole, however, the judgment will be affirmed in part, and reversed and rendered in part, in accordance with the foregoing opinion.

Affirmed in part; reversed and rendered in part.

On Appellee’s Motion for Rehearing.

All parties herein urge motions for rehearing, and we will briefly dispose of the questions presented in a general way.

On original hearing we held, in effect, that the judgment in favor of M. J. Smith against the appellant abstract company was not in this action subject to attack on the ground of a want of jurisdiction in the justice court which rendered it. It is clear, we think, that, as originally announced, the attack herein is a collateral one, and, said court being a domestic court with general jurisdiction within prescribed limits, and a want of jurisdiction not appearing on the face of the record, the judgment mentioned is conclusive as between all parties and privies thereto. Under such circumstances the necessary jurisdictional facts, when not recited, as in the case of the judgment under consideration, will be conclusively presumed to have existed. See, in addition to the authorities cited in our original opinion, 1 Black on Judgments, §§ 270, 271; Murchison v. White, 54 Tex. 78. In this connection, however, we think it should be noted that the authorities make a distinction between judgments of domestic courts and judgments rendered by courts of other states, or personal judgments against a nonresident, or judgments by courts deriving their authority from another sovereign power. Judgments of the latter classes may be attacked in a collateral proceeding on the ground of a want of jurisdiction over either person or subject-matter, even by evidence dehors the record, and by persons who are parties or privies on the face of the proceeding. Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. 506, 43 L. Ed. 808; 1 Black on Judgments, § 270; Bender v. Damon, 72 Tex. 92, 9 S. W. 747.

Thus far we find no fault in our original opinion, but on reconsideration we have concluded that appellees were neither parties nor privies to the judgment of the justice court, and that hence they are not concluded from showing its invalidity in this action.

“The term ‘party,’ in the sense of one who is concluded by a judgment, includes all those directly interested in the subject-matter, and who had the right to control or defend the proceedings, examine and cross-examine witnesses, and appeal from the judgment.” See Words and Phrases, Second Series, vol. 3, p. 894, citing Allen v. McMannes (D. C.) 156 Fed. 615.

Again, the same author, on the same page, citing Perkins v. Goodin, 111 Mo. App. 429, 85 S. W. 936, says:

“The term ‘parties,’ as used in connection with the doctrine of res judicata, includes all who are directly interested in the subject-matter of the suit and have a right and are given an opportunity to make a defense, control the proceedings, examine and cross-examine the witnesses, and appeal from the judgment or decree in case an appeal lies. Persons not having these rights substantially are regarded as strangers to the cause. A mere nominal party, having no control of or interest in the suit, is not bound by the judgment.”

Says the same author on page 1219 of the same volume:

“Privity is defined to be a mutual or successive relationship to the same rights of property, and within the rules relating to the conclusiveness of judgments all persons are ‘privies’ to a judgment whose succession to the rights of property thereby adjudicated was derived through or under one or other of the parties to the action, and accrued subsequent to the commencement of that action.” Lamar County v. Talley, 127 S. W. 272.

Again in the same connection it is said:

“Privies, in such sense that they are bound by a judgment, are those who acquired interest in the subject-matter after the rendition of the judgment” — citing cases.

The same author gives numerous other definitions of like import of the terms “parties” and “privies,” and therefrom we think it clear that • appellee Mrs. McCormac was neither a party nor privy to the judgment of the justice court we have under consideration. Her right as mortgagee in the property involved in the judgment accrued not only prior to the rendition of the judgment, but prior even to the acquisition of the property by the abstract company against which the judgment was rendered. She was not made a party in the proceeding in which the judgment was rendered, had no right of control over the proceedings, had no right of appeal, and claims no right emanating from or under that judgment. On the contrary, her claim is in hostility thereto. As to persons in such relation to a judgment, it is said in 1 Black on Judgments, § 260:

“The rule that a judgment of a court of competent jurisdiction is conclusive, until reversed or in some manner set aside and annulled, and that it cannot be attacked collaterally by evidence tending to show that it was irregular or improperly obtained only applies to parties and privies to the judgment who may take proceedings for its reversal, and in no sense .extends to strangers.”

See, also, Freeman on Judgments, § 334; Murchison v. White, 54 Tex. 78.

If then, the appellee’s plea and proof that the value of the property upon which the laborer’s lien in the justice court was foreclosed was in excess of ?200, the limit of the jurisdiction of the justice court, must be sustained, as appellee urges, the judgment of the trial court in this case must, as between the parties hereto, be approved to the extent necessary to free the property upon which the plaintiffs sought to foreclose their mortgage from the incumbrance, or apparent incumbrance, created by the judgment of the justice court. The sufficiency of the plaintiff’s plea to a want of jurisdiction in the respect pointed out cannot be successfully assailed, nor can the finding of the court to favor of appellees upon the issue be disturbed because of the want of evidence. For the witness R. D. Davenport distinctly testified that the property specified in the judgment and upon which Smith’s laborer’s lien was foreclosed was of a value far in excess of $200. On original hearing we said:

“Contrary to what has been frequently declared in cases of contract liens, it has been held in a number of cases that, where a foreclosure of a statutory lien is sought, the amount and character of plaintiff’s debt or demand determines the jurisdiction of the court, and not the value of the property upon which the foreclosure is sought” — citing a number of authorities, including the leading one of Lawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1129, which was a case of the landlord’s lien.

Appellee, however, now presses upon us a distinction between the landlord’s lien and a laborer’s lien that was made in the case of Railway v. Rucker, 38 Tex. Civ. App. 591, 88 S. W. 815. In that case it was held that the test of jurisdiction in contract cases applied as well in cases where a foreclosure of a statutory lien is sought, except where the statutory lien sought to be foreclosed was that of a landlord, under title 80 of the Revised Statutes. The case of Railway v. Rucker was distinctly approved by our Supreme Court in 99 Tex. 125, 87 S. W. 818, and, while the distinction is not entirely satisfactory to us, we nevertheless feel bound to apply the distinction here in the case before us.

It follows that appellee Mrs. McCormac and intervener R. D Davenport are entitled as against George and Nora Vaught, and as against all other parties to this suit, to a foreclosure of the liens in the order and as adjudged below. That this may be done, ap-pellee’s motion for rehearing will be granted, with an affirmance of the judgment below in all other respects; no error in other respects having been found.

Appellees further insist that the judgment of this court should have been given against appellants and the sureties upon their supersedeas bond. This contention must be overruled, save as to costs, which will be adjudged, against appellants and their sureties as in other cases. No personal or money judgment whatever against appellants or either of them was rendered in favor of appellees Mrs. McCormac or Gray, and the intervener, Davenport, is not complaining. As against appellants the decree simply was that the mortgage lien declared upon should be foreclosed upon the property described in the mortgage and in the judgment, and the terms of the supersedeas bond, which is in compliance with the statute, bind appellants only to prosecute their appeal with effect, “and in case the judgment of the Supreme Court or of the Court of Civil Appeals shall be against them, they shall perform its judgment, sentence, or decree and pay all such damages as said court may award against it.” In the absence of a claim of damages for the delay .occasioned by the operation of the supersedeas bond, we do not understand that the principal and sureties thereon can be held liable for a debt not adjudged against the principals in the judgment below. Adoue v. Wettermark, 28 Tex. Civ. App. 593, 68 S. W. 553.

We conclude that appellants’ motion for rehearing must be overruled, and the judgment below affirmed as hereinbefore stated, and as in other respects in our original opinion provided, with all costs taxed against appellants and the sureties on their supersedeas bond.
      <£=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    LANE et al. v. KEMPNER et al.
    (No. 8323.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 5, 1916.)
    1. Execution <&wkey;268 — Sale—Title of Pur-CHASEK — INCUMBRANCE.
    A purchaser of property under execution sale took. title subject to the incumbrance of vendor’s lien notes secured by a valid vendor’s lien on record against the property.
    [Ed. Note. — Por other cases, see Execution, Cent. Dig. §§ 762-767; Dec. Dig. &wkey;268.]
    2. Injunction &wkey;>27 — Execution and En-EOEOEMENT OE JUDGMENT — STATUTE.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, § 4643, providing when injunctions may be granted, owner of realty held entitled to writ of injunction enjoining the purchaser .of the property under execution sale and the sheriff from seizing it under writ of sequestration issued in a suit in trespass to try title in which the purchaser at execution sale was plaintiff and the owner’s tenant defendant.
    [Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. &wkey;27.]
    3. Injunction <&wkey;16 — Right to Relief — De-gal Remedy — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, § 4643,. providing when injunctions may be. granted, gives an applicant within its terms a right to the relief irrespective of the existence of a legal remedy at law.
    [Ed. Note. — Por other cases, see Injunction, Cent. Dig. § 15; Dec. Dig. <&wkey;>16.]
    4. Sequestration &wkey;>15 — Restraining Sequestration — Degal Remedy — Right to Reflevy Property.
    Plaintiffs in an injunction suit, who were not . parties to a suit in trespass to try title against a tenant of one of them, were not authorized to replevy the property when seized under writ of sequestration, the defendant alone having the right under Vernon’s Sayles’ Ann. Civ. St. 1914, § 7103, providing that, when property has been sequestered, the defendant may re-plevy by giving bond.
    [Ed. Note. — Por other cases, see Sequestration, Cent. Dig. §§ 25-32; Dec. Dig. <&wkey;>15.]
    5. Injunction <&wkey;17 — Enforcement of Judgment — Seizure under Writ of Sequestration-Adequacy of Degal Remedy.
    The remedy of plaintiffs, in suit to enjoin seizure of property under writ of sequestration issued in a suit in trespass to try title against the tenant of one of them, to permit the sequestration to have been completed, and then, had they prevailed in their suit to set aside the execution sale, to have brought an action in damages for loss sustained by reason of the sequestration, was not as efficient as the remedy by injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 16; Dec. Dig. &wkey;>17.]
    6. Execution &wkey;>258 — Sale — Collateral Attack.
    A collateral attack on the validity of an execution sale by intervening in trespass to try title could not effect its avoidance for irregularities and defects not appearing on the face of the proceedings, and therefore such right of intervention does not defeat a suit for injunction to restrain seizure of the property on such writ of sequestration.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 736-739, 789; Dec. Dig. &wkey; 258.]
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Suit by R. L. Lane and another against I. H. Kempner and another. From an order dissolving a temporary injunction, plaintiffs appeal.
    Judgment reversed and cause remanded, and order of the trial court dissolving the injunction ordered set aside, such injunction being continued in force until lawfully altered.
    Roy & Rowland and Wm. J. Berne, all of Ft. Worth, for appellants. Hunter & Hunter, of Ft. Worth, for appellees.
   BUCK, J.

This suit was brought by appellants, R. L. Lane and T. B. Freeman, against I. H. Kempner, alleged to reside in Galveston county, Tex., and N. 0. Mann, sheriff of Tar-rant county, Tex., to enjoin the defendants from seizing certain improved residence property in the city of Ft. Worth under a writ of sequestration issued in a suit in trespass to-try title in which I. H. Kempner was plaintiff and Percy Webb defendant. A temporary injunction issued, which, upon motion of appellees, Kempner and Mann, was dissolved. From the order of dissolution, plaintiffs have appealed.

No oral evidence was heard, and th'e order of dissolution was based upon the petition, the answer, the motion to dissolve, the first supplemental petition, and plaintiffs’ reply to defendants’ motion to dissolve. The practically uneontroverted facts seem to be as follows:

On December 18, 1914, Percy Webb, a married man, occupied and owned the premises in controversy, and on said date Webb and his wife executed and delivered to plaintiff Lane a warranty deed conveying said property; Lane taking the title in his own name, but the consideration having been paid by himself and his coplaintiff, Freeman. Said deed was duly filed for record in Tar-rant county, January 15, 1915, and duly recorded. Upon the execution of said deed, on December 18, 1914, AVebb rented said premises from plaintiff and occupied the same as plaintiff’s tenant continuously from th'at time to the institution of this suit On November 14, 1912, Turner & Dingee obtained a judgment in the justice court of Tarrant county against R. L. Lane in the sum of $183.65 and costs, said judgment bearing interest at the rate of 6 per cent, per annum from date, execution having been issued on said judgment in due time and having been returned by the constable of Tarrant county with the indorsement of nulla bona. On December 14, 1912, an abstract of the above judgment was recorded in the judgment record of Tarrant county. On April 14, 1915, an alias execution issued on said judgment, and having been placed in the hands of th'e constable of precinct No. 1, Tarrant county, said constable levied upon the property in controversy as the property of appellant Lane, and duly advertised said property for sale, for 20 days prior to the sale, in the Union Banner, a weekly newspaper published in Tarrant county, and deposited an envelope addressed to appellant Lane, duly stamped and containing a notice of sale, in the United States post office, addressed to appellant’s home in Ft. Worth. Said property was sold by the constable under the execution sale to Kempner for $225.

There was a valid vendor’s lien on record against said property to secure vendor’s lien notes in the sum of $5,000, due December 18, 1916, and, of course, Kempner took such title as h'e received, as purchaser under the execution sale, subject to this incumbrance secured by the vendor’s lien. Keonpner filed his deed for record with the county clerk of Tarrant county on June 1, 1915, and the same was duly recorded. On April 23,1915, Kemp-ner caused to be levied on the premises in controversy in the instant suit á writ of execution issued on a moneyed judgment that Kempner had obtained against Webb, said writ being levied on said premises as the property of said Webb, and thereupon, before said sale, a writ of injunction issued out of the Forty-Eighth' district court of Tarrant county, Tex., in cause No. 39,225, upon application of R. L. Lane, enjoining and restraining said sheriff from making said sale; and said writ remains in full force and effect. On May 31, 1915, the aforesaid premises having been duly levied upon and advertised for sale .on June 1, 1915, under the Turner & Dingee judgment against Lane, and as the property of Lane, said Lane, acting through his friend Blanton, agreed with the attorneys of Turner & Dingee (the conversation being had with W. O. Blalock of th'e firm of Bryan, Stone & Blalock, attorneys for Turner & Din-gee) that the sale of said premises should not be made on June 1st, and that Lane should pay said judgment not later than June 3, 1915. On June 2d, Lane tendered to said attorney the money due on the Turner & Din-gee judgment, but the money was refused, the attorney stating that the judgment sale had already taken place. Th'e firm of Hunter, West & Hunter, in fact, seem to have represented Turner & Dingee in having the alias execution issued, and the subsequent sale made, on June 1st, of the property in controversy under said judgment.

On learning of the violation of the alleged agreement in having the sale take place on June 1st, appellant Lane, on June 4, 1915, instituted a suit in the Forty-Eighth district court of Tarrant county against Turner & Dingee, the attorneys with whom said agreement was alleged to have been made, and I. H. Kempner, to set aside the execution sale made to Kempner on said June 1st, and so far as the record discloses this suit is still pending. On June 5, 1915, Kempner demanded of said Percy Webb the possession of the said premises, notifying Webb that he (Kemp-ner) then owned the property. Webb refused to deliver possession to or to attorn to Kemp-ner, and on July 16, 1915, Kempner sued Webb alone in trespass to try title to recover said property and cause a writ of sequestration to issue therein, said suit being No. 39,-464, under which the sheriff was directed to sequestrate said property. Thereupon Sheriff Mann, under said writ of sequestration, took possession of said premises, and placed Percy Webb and his wife in possession thereof as the sheriff’s agent to hold and take care of the same during the 10 days in which said Percy Webb was entitled to replevy said premises, and, in case he did not replevy the premises within said time, to put him out of same according to law. Whereupon, on July 21, 1915, the suit, which is now before us on appeal, was instituted by Lane to enjoin said Kempner and Mann from further pro-, ceeding under the authority of said writ of sequestration, or in any way disturbing the possession of plaintiffs of said premises, and from ousting, or in any way interfering with or disturbing the possession of, said Webb as plaintiff’s tenant.

Plaintiffs, in their original and first supplemental petition, and in their reply to defendants’ motion to dissolve, alleged, among other things, and in addition to what has heretofore been set out:

(1) That the premises involved were highly improved as residence property, and that, unless occupied by a careful and provident person, the improvements on the said premises would be wasted and the premises irreparably damaged.

(2) That when M. S. Blanton went to A. S. Dingee, of the firm of Turner & Dingee, he stated to Dingee that he desired to satisfy and pay off the judgment against Lane, together with all costs accruing by reason of said levy and advertisement of sale, and requested that release of said judgment in writing be prepared by said Turner & Dingee; that thereupon said Dingee, acting for himself and his firm, requested Blanton to take up the matter of payment of such judgment and the execution of the release with their attorney, Morgan Bryan, and, in case said Bryan could not be seen, to take up such matter with W. 0. Blalock, who was an attorney at law and associated with said Morgan Bryan as one of the attorneys of Turner & Dingee; that both Bryan and Blalock were duly authorized to act for Turner & Dingee, and that the settlement that they, or either of them, made, would be satisfactory to Turner & Dingee.

(3) That, upon going to see Bryan, Blanton learned that Bryan was out of the city, and talked with Blalock, and received from said Blalock information as to the total amount due upon the judgment, and that Blalock advised Blanton that a release of said judgment would be promptly drawn and ready for delivery, and upon the payment of said amount not later than June 3, 1915, said release would be delivered to said Lane, or to said Blanton for said Lane, and that in the meantime no sale would he made under the judgment or further costs incurred.

(4) That the firm of Hunter, West & Hunter, the attorneys for I. H. Kempner, were also the attorneys for Turner & Dingee in seeking to collect the justice court judgment, and in effecting the levy and the execution sale thereunder, and said firm of Hunter, West & Hunter had notice prior to the sale of the premises on June 1, 1915, of the agreement entered into between W. O. Blalock, also attorney for Turner & Dingee, and Mat S. Blanton, acting for and representing R. L. ,Lane, and they further averred, on information and belief, that said Kempner, when he purchased said premises at said execution sale, had notice of the aforesaid-agreement between plaintiffs and Blalock.

(5) That the improvements on the premises were of the reasonable value of $5,000, the land being also of the reasonable value of $5,000; that the residence was insured in several policies in the aggregate sum of $6,000, or $4,000, the allegations upon this point being somewhat ambiguous; and that each of said policies contained a provision that if any change should take place in the interest, title, or possession of the property insured, whether by legal process, or judgment, or by voluntary act of the insured, or otherwise; or if the hazard be increased .by any means within the knowledge of insured; or if mechanics should be employed in building, altering, or repairing the described premises for more than 15 days at one time; or if the interest of the insured should be other than unconditional and sole ownership, etc.; that the policy should he null and void; and plaintiff averred that, by reason of the provisions in said policies, and if the injunction should be dissolved, he-was in great danger, in case of loss or destruction by fire, of suffering irreparable injury.

In defendants’ answer there seems to be no denial of the several allegations contained in plaintiff’s several pleadings, as set out hereinabove under Nos. 1 to 5, inclusive. Therefore we are of the opinion that, on the face of the pleadings, plaintiff presented just grounds for the writ of injunction sought. Neither of plaintiffs in this suit was made a party defendant in the suit of Kempner v. Webb. Webb was holding possession of the premises as Lane’s tenant, and therefore such possession was in law Lane’s possession. Kempner’s claim to the right of possession was predicated upon his possession of Lane’s title, acquired through the execution sale. The sufficiency of this title was specifically attacked by the suit instituted June 4, 1915, by Lane and Freeman against Kempner and others, which suit was pending on July 16th, when Kempner sought by suit in trespass to try title against Webb to gain possession of the property involved, out of which suit the sequestration writ was issued. Under article 4643, Vernon’s Say les’ Tex. Oiv. St., injunctions may be granted:

“(1) Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief .or any part thereof requires the restraint of some act prejudicial to the applicant.
“(2) Where, pending litigation, it shall be made to appear that a party (is) doing some act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant, which act would tend to render judgment ineffectual.
“(3) In all cases where the applicant for such writ may show himself entitled thereto under the principles of equity, and as provided by statutes (and all other acts of this state providing for the granting of injunctions),” etc.

These provisions of the statute have been construed in many cases by the courts of this state as giving an applicant, putting himself within their terms, a right to the injunctive relief, irrespective of the existence of a legal remedy at law. It is not a sufficient answer to say that the applicant had a remedy at law, and that he should first be forced to resort to such legal remedy. As said by Justice Denman in Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994:

“But it is contended that the trustee had an adequate remedy by suit for damages against the officer, and therefore was not entitled to an injunction. We have been cited to no authority which would have permitted him in such a suit to recover the loss the trust estate would have suffered by reason of the trustee’s not being able to sell the goods not seized for as great a sum as he could have sold them for if the goods levied upon had not been taken out of the stock. It would be very difficult to estimate such loss. We do not think a court of equity should turn away the trustee seeking its aid in the execution of the trust, because of the existence of a remedy so doubtful as to its adequacy. ‘It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the end of justice and its prompt administration as the remedy in equity.’ Watson v. Sutherland, 5 Wall. 74 [18 L. Ed. 580]; North v. Peters, 138 U. S. 271 [11 Sup. Ct. 346, 34 L. Ed. 936]. In courts administering both law and equity, like ours, the rules denying injunction when there is a remedy at law should not be applied as rigidly as at common law, where the issuance of the writ in equity was, to a certain extent, an invasion of the jurisdiction of another tribunal. If, as here, the applicant shows a clear right to be ieft in the undisturbed possession of certain property, and that such right is about to be invaded without semblance of right by another, such invasion, on principle, should be prevented in its incipiency by injunction, instead of allowing the injury to be inflicted and then leaving the party to his legally adequate, but in fact generally very inadequate, remedy of an action for damages.”

See, also, Smith v. Carroll, 28 Tex. Civ. App. 330, 66 S. W. 863 ; McFarland v. Wilder, 54 S. W. 267; Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382; Sullivan v. Dooley, 31 Tex. Civ. App. 589, 73 S. W. 82; Mitchell v. Burnett, 57 Tex. Civ. App. 124, 122 S. W. 937; S. W., etc., Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049.

We held in Tipton et al. v. Railway Postal Clerks’ Association et al., 173 S. W. 562, where many of the material allegations of plaintiff’s petition were not specifically denied by the answer, and such allegations showed a right in plaintiff to the relief sought, that it was error for the court to dissolve a temporary injunction previously granted.

We question whether applicants had a remedy at law that was adequate or “as practical and efficient to the ends of justice and its prompt administration” as the remedy of injunctive relief. Not being a party to the suit of Kempner v. Webb, plaintiffs in this suit were not authorized to replevy the property. Only the defendant has this right. Article 7103, Vernon’s Sayles’ Tex. Civ. St.; Harris v. Shackelford, 6 Tex. 133; Haile v. Oliver, 52 Tex. 443; Lang v. Dougherty, 74 Tex. 226, 12 S. W. 29.

Further, plaintiffs could have permitted the sequestration to have been completed, and then, in case they had prevailed in their suit to set aside the execution sale, might have brought an action in damages for loss they might have sustained by reason of the sequestration; but such a remedy would certainly have not been as efficient as the relief herein sought, and especially so since the defendant Kempner is shown to have resided in Galveston county. Even if they had intervened in the trespass to try title suit of Kempner v. Webb, the attack therein on the validity of the execution sale would have been a collateral attack only, and as such could not have effected its avoidance for irregularities and defects not appearing on the face of the proceedings, such as are urged in the present suit.

For the reasons stated, the judgment oí the trial court is reversed, and the cause remanded, and it is ordered by this court that the order of the trial court dissolving the injunction be set aside, and that said injunction theretofore granted continue in force until otherwise lawfully altered.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§z^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, O. J.

text:
    SPRINGFIELD FIRE & MARINE INS. CO. v. NELMS et al.
    (No. 8317.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 5, 1916.
    Rehearing Denied March 18, 1916.)
    Insurance <&wkey;546 — Fibe Insurance — Immaterial Breach oe Policy — Statute.
    Under Act April 2, 1913 (Acts 33d Leg. c. 105, entitled “An act to prevent fire insurance companies from avoiding liability for loss * * * to personal property under technical and immaterial provisions of the policy * * * where the act breaching such provision has not contributed to bring about the loss, * * * ”) § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), and section 3, an insurer of personalty against fire could not escape liability for a loss for insured’s failure to comply with a special provision of the policy that he would, as part of his proofs of loss, if requested, furnish a certificate of the magistrate or notary public living nearest the place of fire, stating that he had examined the circumstances and believed the insured honestly sustained loss, where the fact of loss was undisputed, the amount not contested, and notice and proofs made, while the insured’s pleadings and evidence contained no suggestion that the fire wrongfully originated by act or procurement of the insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1350, 1351; Dec. Dig. &wkey;546J
    Error from Erath County Oourt.
    Suit by Mat Nelms and others against the Springfield Fire & Marine Insurance Company. To review a judgment for plaintiffs, defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris and W. O. Thompson, all of Dallas, for plaintiff in error. Hickman & Bateman, of Dublin, for defendants in error.
   CONNER, O. J.

Mat Nelms and others sued to recover a loss by fire upon certain personal property covered by an insurance policy issued by the defendant company to Mat Nelms. The trial resulted in a judgment for the plaintiffs, and the insurance company prosecutes this writ of error.

Plaintiff in error’s only material defense to the action was a special plea and evidence in its support, to the effect that after the loss Mat Nelms failed to comply with a special provision of the policy that he would, as part of his proofs of loss, if requested—

“furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor, or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.”

That the provision quoted is part of the policy is not questioned. It is also undisputed that Mat Nelms though requested so to do, failed to furnish the certificate so provided for in the policy. Furthermore, the record contains no explanation of such failure. Under such circumstances, in various forms, the defendant company insisted upon the trial, and now before us, that the plaintiffs were not entitled to recover.

Generally speaking, it may be said that the weight of authority seems to be that a provision of the character quoted is a reasonable one, and that compliance therewith is a condition precedent to a recovery upon an insurance policy containing it. See Kelly v. Sun Fire Office, 141 Pa. 10, 21 Atl. 447, and notes as published in 23 Am. St. Rep. 254 et seq., where the cases on the subject are generally reviewed. We have but two undisturbed cases holding otherwise. One, the Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315, is based upon an Indiana statute. The other is the case of Germain American Ins. Co. v. Norris, by the Court of Appeals of Kentucky, reported in 100 Ky. 29, 37 S. W. 267, 66 Am. St. Rep. 324., In the latter case the policy contained a provision such as we have quoted, and there had been a failure to comply therewith within the time specified in the policy. It was contended, as here, that there could be no recovery, but the court in disposing of the question said:

“Appellant insists very earnestly that the failure to furnish the certificate of the magistrate when required is a bar to appellees’ right to recover, but we do not think that the policy, when fairly read and construed, constitutes such failure a bar to recovery. It could not be used as evidence against the appellant, and, as there is no law by which the insured could compel a magistrate to act in the matter, it is not reasonable that parties would undertake to procure the certificate of an officer when there was no law by which he could be required to certify at all. Such requirement should not be enforced. It could be of no real benefit to appellant, but only an inconvenience to appellees.”

While the view of the Kentucky court, as expressed in the quotation, may seem forceful, the case perhaps should not be regarded as authority, inasmuch as the court recited further along in the opinion that the certificate there in question had, in fact, been presented before the trial. Regardless, however, of the general state of the authorities, we think that here, as in Indiana, we have statutes which, as we construe them, require a ruling against the insurance company on the question under consideration. By act approved on April 2, 1913, entitled “An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss, and declaring an emergency,” it was enacted by the Legislature of the state of Texas (section 1):

“That no breach or violation by the insured of any of the warranties, conditions or provisions of any fire insurance policy, contract of insurance, or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about the destruction of the property.”

Section 3 of the same act reads:

“Whereas, under the existing laws, insurance policies and contracts may be defeated upon purely technical provisions and defenses that in no way affect the merits of the claim against the insurance company, and such defenses have been upheld to the extent of making it almost impossible for an insurance policy upon personal property to be collected by suit, creates an emergency and imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.”

Prior to this enactment, in chapter 15, tit. 71, of our Revised Statutes, and under the heading of “General Provisions,” it had theretofore been enacted, in substance, that in order to constitute a defense in a suit on an insurance policy, where the loss has been established, false statements made in the application for the contract, or In the contract itself, or in the proofs of loss, must be shown to be material, and the new act was evidently intended in broad terms to operate against purely technical provisions and defenses that in no way affect the merits of the claim against th'e insurance company. In the case before us the loss is undisputed, the amount of the loss is not contested, notice and proofs of loss were made, and neither in plaintiff in error’s pleadings nor in its evidence is there a suggestion that the fire wrongfully originated by act or procurement of Mat Nelms or any other person, and under such circumstances we cannot see how the failure of Mat Nelms, from whatever' cause arising, materially affects any right of plaintiff in error in this cause. So believing and holding, it is ordered that all assignments of error be overruled, and th'e judgment affirmed.

Affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    STAFFORD v. PATTERSON & NELSON.
    (No. 8321.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 12, 1916.)
    1. Evidence &wkey;>148 — Competency—-Identity of Parties — Knowledge of Witness.
    Where plaintiff buyer of cotton seed and defendant seller testified that they were the only persons present at their meeting when the buyer claimed the contract of sale was made, evidence of a witness who testified that at the time and place in question he heard a conversation between the buyer and a man whom he did not know, but who resembled the seller, being about his size, and who was the seller, in the opinion of the witness, that the conversation between buyer and seller as heard by him was substantially as detailed by the seller, was improperly excluded in the buyer’s suit for failure to deliver.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 438; Dec. Dig. &wkey;>148.]
    2. Appeal and Error. &wkey;>1064(1) — Harmless ERror — Instruction.
    In an action for failure to deliver cotton seed, the charge that, if the jury believed from a preponderance of the evidence that the contract was not made as alleged, they would find for defendant, if erroneous as placing the burden upon defendant to show by a preponderance L of evidence that he did not enter into the contract of sale alleged, was not reversible error.
    [Ed.. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. &wkey;>1064 (1); Trial, Cent. Dig. §§ 475, 525, 528, 553.]
    3. Garnishment <@=»250 — Wrongful Garnishment — Damages—Lost Profits — Speculative Character;.
    In an action for failure to deliver cotton seed sold, the alleged seller could not recover, as damages on his counterclaim for profits lost by the buyer’s having garnisheed his bank account and prevented his withdrawing a sum of money, $195 which would have been his profits on the sale of cotton seed to another buyer could he have withdrawn the money from the bank to pay the freight on the seed.
    [Ed. Note. — For other cases, see Garnishment, Dec. Dig. @=>250.)
    Appeal from Stonewall County Court; R. S. Tillotson, Judge.
    Suit by E. A. Patterson and D. C. Nelson, composing the copartnership firm of Patterson & Nelson, against Lee Stafford. From a judgment for plaintiffs and denying defendant any recovery on his counterclaim, defendant appeals.
    Judgment reversed, and cause remanded.
    W. J. Arrington, of Paducah, and Carl Springer, of Aspermont, for appellant. J. M. Carter, of Dallas, and Nelson & Hunter, of Wichita Falls, for appellees.
   DUNKLIN, J.

This suit was instituted by E. A. Patterson and D. C. Nelson, composing the copartnership firm of Patterson & Nelson, against Lee Stafford, to recover $100 as profits which plaintiffs alleged they lost by reason of the failure of defendant to deliver to them five cars of cotton seed in accordance with his contract so to do. By writ of garnishment issued and served upon the First National Bank of Aspermont defendant was prevented from withdrawing from the bank the sum of $90.90 to his credit, and by reason of that fact defendant filed a counterclaim against plaintiffs for $195 as damages for alleged wrongful suing out of said garnishment writ. The suit originated in the justice court, and later was appealed to the county court. A judgment was rendered in the latter court in plaintiffs’ favor for $25 and denying defendant any recovery on his counterclaim. From that judgment defendant has appealed to this court.

According to the testimony of D. O. Nelson, he met the defendant in Aspermont on the night of January 17, 1915, at which time the defendant entered into a parol contract with him to sell plaintiffs’ firm five ears of cotton seed, aggregating 100 tons, at $22 per ton, that thereafter defendant breached his contract and that the market price of the seed had advanced $2 to $3 per ton.

Defendant testified to the meeting with Nelson on the night of January 17th, but flatly denied that he made the alleged contract at that time. He further testified that on the following morning he saw Nelson at the depot as the latter was leaving town, and in that connection testified as follows:

“Nelson came up to me just before the train pulled out for Spur, and said to me: ‘You had better let me have those seed.’ I told him that, if I did not get a better price than he had offered, I would let him- have them, and if I decided to let him have them I would wife him at Spur. He then said to me: ‘If you decide to let me have them, wire my partner E. A. Patterson, at Wichita Palls, Tex.’ ”

Defendant further testified that Herman Shadle was present on that occasion. Nelson denied that conversation altogether. Defendant introduced Shadle as a witness, who testified that he was present at the depot on the occasion mentioned by defendant, and that he heard a conversation between defendant and a man whom he did not know, but who resembled Nelson, being about his size, and who in the opinion of the witness was Nelson. Had he been permitted to do so that witness would have testified that the conversation between Nelson and defendant so heard by witness was substantially to the same effect as detailed by defendant and noted above. But plaintiffs objected to that testimony, on the ground that the witness had not sufficiently identified Nelson as the man with whom defendant talked, and the objection was sustained.

According to the testimony of both Nelson and Stafford, those two were the only persons present at their meeting on the night of January 17th, when Nelson claims the contract in controversy was made, and in view of the conflict between their testimony with respect to what was said on that occasion and also with respect to what, if anything, was said between them at the depot on the following morning, we are of the opinion that there was reversible error in excluding the proffered testimony of the witness Shadle. While he could not positively identify Nelson as the man he saw in conversation with defendant, we believe that the facts detailed by him, especially when considered in connection with the testimony of defendant, who said he saw Shadle present on that occasion, afforded sufficient predicate prima facie for the admission of the testimony.

Following an instruction to the jury, in which the making of the alleged contract was submitted as a disputed issue, and the burden of proof upon that issue was imposed upon plaintiffs, the court gave this further instruction, which is assigned as error:

“If, however, you believe from a preponderance of the evidence that said contract was not made as alleged, then you wifi, find for the defendant.”

The criticism presented is that by the instruction quoted, the court placed the burden upon defendant to show by a preponderance of evidence that he did not enter into the contract alleged. The instruction was favorable to the defendant, and at all events would not be reversible error. Abilene Light & Water Co. v. Robinson, 146 S. W. 1052, and authorities there cited. However, we suggest that on another trial the charge be so framed as to leave no ground for the criticism.

Error has been assigned to the instruction given upon appellant’s counterclaim for alleged profits he would have made in his business, if he had been permitted to draw his money from the bank. That assignment is overruled for the reason that, in our opinion, the damages so claimed were not recoverable at all. According to allegations in the plea of reconvention, at the time the writ of garnishment was served on the bank defendant had already contracted to sell five cars of cotton seed to another purchaser at a profit of $195 and was ready to ship, and would have shipped, the same to such purchaser, and realized such profit if he could have used for payment of freight thereon the $90.90 in bank which was tied up by the garnishment; but, as he was unable to withdraw such funds, and was unable to procure other funds necessary to pay such freight, he was unable to make the contemplated sale, and thereby lost said profits. The damages so alleged were not such damages as plaintiffs could reasonably have anticipated as a natural and probable result of suing out the writ, but were special damages only, very remote and speculative, and if under any sup-posable contingencies they could be recovered, no facts were alleged or proven sufficient to put plaintiffs on notice that such special losses to defendant might probably result in consequence of the levy of the writ.

For the error indicated, the judgment is reversed, and the cause remanded.
      gr^Fnr other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    NORTON v. ELLIOTT.
    (No. 8476.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 25, 1916.)
    Mechanics’ Liens <@=>116 — Proceedings to Perfect—Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5621-5628, 5631, prescribing the method of fixing and securing a laborer’s lien in advance on a building intended to be occupied as a homestead, where a laborer fails to take the means provided for securing a lien, he is not entitled to enjoin the contractor from delivering the building to the owner for occupancy to enable him to enforce his claim.
    [Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 160; Dee. Dig, <@=>116.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by Robert Elliott against W. B. Norton and another. From a judgment for plaintiff, defendant Norton appeals.
    Reversed, with directions to dismiss petition.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. Fitzgerald & C'ox, of Wichita Falls, for appellee.
   BUCK, J.

This is an injunction suit brought by appellee against appellant, alleging, in substance, the following facts: That K. T. Hammersley built a residence for appellant, defendant below, the contract price of which was $2,720; that Hammersley sublet to plaintiff the plumbing for said building, and, plaintiff having finished said job, there was still due him $234; that Ham-mersley, having completed said building, was about to turn the same over to the said Norton without satisfying the indebtedness due plaintiff. It was further averred on information and belief that the reason Hammersley had not paid plaintiff the amount claimed was that said Norton had not paid all of said contract price. It was further alleged that Norton did not have sufficient property, except the building in question, to satisfy the plaintiff’s debt, and that, if Hammersley delivered to Norton said building, plaintiff would be unable to collect his debt; that Hammersley did not have sufficient property to satisfy plaintiff’s debt. It was further alleged that:

“Plaintiff further sues to foreclose Ms laborer’s lien on said property, and represents to the court that, if the defendant is allowed to move into said property and establish his homestead, then the plaintiff would be unable to foreclose Ms lien against said property. Wherefore the plaintiff prays for an injunction to restrain the said K. T. Hammersley from turning over said property to the defendant until the plaintiff’s debt is fully paid, as provided in the contract between the defendant and the said Ham-mersley, and restraining the said W. E. Norton from moving into said property until the plaintiff’s debt herein is paid, as is fully provided for in the contract between said contracting parties.”

Upon the presentation of the petition for injunction to Hon. Harvey Harris, county judge of Wichita county, the following fiat was indorsed thereon, to wit:

“The foregoing prayer for injunction considered, it is ordered that the clerk of the county court of Wichita county, Tex., issue a writ of injunction in all things as prayed for in the above upon the petitioners executing to the defendant, Norton, a bond with two or more good and sufficient sureties, in the sum of five hundred ($500.00), conditioned as the law requires. [Signed by the judge.]”

Upon the execution and filing by the plaintiff of a bond in the sum of $500, the writ of injunction issued, directed to both Norton and Hammersley, and was served on each of them. Norton alone appeals, and has filed in the lower court his supersedeas bond in the sum of $500.

We are unable to understand upon what ground the county judge granted the writ. It is not alleged in plaintiff’s petition that the defendant Norton owes plaintiff anything. If any cause of action is alleged as against Norton, it is a foreclosure of a subcontractor’s lien upon real estate, of which action the county court would have no jurisdiction. Furthermore, it is not alleged that the statutory steps provided to fix such lien had been followed, and in fact the statement in the petition “that, if the defendant is allowed to move into said property and establish his homestead, then the plaintiff would be unable to foreclose a lien against said property,” would seem to be tantamount to an allegation. that the procedure required by statute to fix the lien had not been followed. If the house was erected as a homestead, defendant, Norton, being a married man, in order to fix and secure a lien upon the same, it would be necessary that a contract in writing be made and entered into prior to the furnishing of any material, or the performance of any labor, and executed by the owner and his wife in the manner required in making the sale of a homestead, as provided in article 5631, Vernon’s Sayles’ Texas Civil Statutes. If defendant, Norton, was not married, then the steps to be taken to fix the lien are provided in articles 5621, 5622, and 5623, as amended and added to in Acts of the Thirty-Fourth Legislature 1915, p. 223. Article 5623, as amended, and article 5623a provide for the execution of a written contract for the erection, repair, or improvement of a building, said contract to be filed with the county clerk of the county where the property is situated, and the execution and filing with the county clerk before the work is begun of a good and sufficient bond by the contractor, and further provides that suit may be filed on tMs bond “by the owner, subcontractor, workmen, laborers, mechanics, and furnishers of materials, or any of them, and they and each of them shall have the right to recover on said bond in the same manner as if the bond were made payable directly to them.” And it is further provided in article 5623a that said bond “shall guarantee the payment of such claims, regardless of whether or not they are secured by any lien.” But there is no allegation in the petition that the suit is on this bond or that any bond was ever executed, and in fact it is evident from the reading of the petition that no reliance is placed on the provisions of the 1915 statute.

If the plaintiff had fixed his lien as provided by law prior to the filing of this suit, the occupancy by the owner of the building would not impair such lien, and, if he had not fixed such lien, certainly he could not avoid the consequences of his failure by depriving the owner of the right to occupy the premises.

Finding no sound basis to support the action of the trial court in granting the writ, the judgment of the court below is reversed, and the court below is ordered to dismiss, at plaintiff’s costs, the petition for injunction.
      <§zs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes