text:
    SEWELL v. WALTON et al.
    (No. 1988.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 23, 1918.)
    1. Husband and Whs <§=>113 — Wife’s Separate Property — Right to Contract — Statutes.
    Acts 33d Leg. c. 32 (Vernon’s Say les’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), relating to the rights of married women, does not confer upon a married woman a power she did not have before to contract generally as a feme sole might, but deprives her of the power she did have before its passage to bind herself by a contract made by her alone for the benefit of her separate estate.
    2. Husband and Wife <§=>229(3) — Wife’s Separate Property — Estopfei^Pleading .
    In a suit on a promissory note given for the purchase price of real estate by an unmarried woman, who had subsequently married and gave the note in renewal of notes previously executed, a petition alleging that she had stated that she was living apart from her husband at the time she gave the note, and did not wish him to have anything to do with her affairs, did not sufficiently allege ignorance of the truth and reliance on such statement, so as to estop defendant to deny it.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Suit by H. L. Sewell against Alice Walton and others. From a judgment for defendants, dismissing the case on demurrer, plaintiff appeals.
    Affirmed.
    The suit was commenced by a petition filed September 1, 1917. Appellant was the plaintiff, and appellees, Alice Walton, her husband, Cline Walton, and C. G. Engledow, were the defendants. Appellant’s original petition contained allegations as follows :•
    (1) That said appellant on December 22, 1903, sold and by a deed of that date conveyed 100 acres of land, particularly described, to appelldb Alice Walton, the consideration being her five promissory notes of that date, for $110 and interest each, payable October 1, 1907, 1908, 1909, 1910, and 1911, and secured by a vendor’s lien expressly retained on said land.
    (2) That said Alice Walton afterwards paid the one of said notes which first matured.
    (3)' That on September 23, 1913, the other four notes were unpaid; that on that day Alice Wlalton, “who in the meantime had intermarried with one Cline Walton, came to plaintiff and represented that she and her said husband, Cline, were separated and were living separate and apart; that she did not wish him to have, and refused to allow him to have, anything to do with her affairs; that she was not then able to pay the balance” of the purchase price and interest, to wit, $792, due on the land; and that she then executed and delivered to appellant her note for said sum of $792 and interest, payable October 1, 1&3, in lieu of said four unpaid notes.
    (4) That on October 12, 1914, said Alice Walton and appellant “entered into an agreement for the extension, and extending, the said vendor’s lien which was retained in said original four notes, as well as in said note for $792 given -in renewal of said four notes as aforesaid, and extending further the time of payment of the money represented by said notes to the 1st day of October in the year 1915.”
    (5) That although said four notes for $110 each, and said note for $792 made in lieu of same, had long been due, said Alice Walton, though often requested to do so, had not paid same or any part of same.
    (G) That said agreement extending the time for the payment of said debt was in writing, signed by both appellant and said Alice Walton, “and duly acknowledged as required by law,” and was “duly recorded in the proper records of Camp county.”
    The prayer was for a rescission of the contract whereby appellant sold the land to Alice Walton, and a decree devesting title out of her and the other appellees, and vesting same in appellant, or, in the alternative, for judgment for the amount — principal, interest, and ' attorney’s fees — of the debt evidenced by the notes, and foreclosing the vendor’s lien retained to secure the payment of the notes.
    Demurrers challenging the sufficiency of the petition having been sustained, and appellant having refused to amend same, his suit was dismissed. Thereupon he prosecuted this appeal.
    The demurrers sustained were: (1) To the part of the petition charging that Alice Walton executed the renewal note for $792, because it appeared she was then a married woman and that her husband did not join her in the execution of the note. (2) To all that part of the petition charging that Alice Walton made the agre&nent of Octob%r 12, 1914, for an extension to October 1, 1915, of the time of payment of the indebtedness evidenced by the notes, because it did not appear that her husband joined her in the execution of said agreement, and “no facts were alleged which, if true, would have authorized her to execute said 'contract of extension without being joined therein by her husband.” (3) To the entire petition, because it appeared that appellant’s cause of action was barred by the statute of limitations. Articles 5694, 5695, Vernon’s Statutes. This was on the theory that Alice Walton was not bound by the renewal note of September 23, 1913, for $792, nor the agreement to extend the time of payment of the indebtedness to October 1, 1915.
    T. H. Briggs, of Gilmer, and Smith & Bry-son, of Pittsburg, for appellant. Bass & Engledow, of Pittsburg, for appellees.
   WILLSON, C. J.

(after stating the facts as above).

In support of the contention made by appellant that the trial court erred when he sustained the demurrers to the petition and dismissed the suit, it is insisted that “a married woman,” quoting from appellant’s brief, “since the act of 1913, is authorized to make any, contract, without the joinder of her husband, except a contract of joint liability on a note, or of suretyship on a bond or obligation of another.”

It is further insisted that, if it is not true that said Act 1913 conferred such power on a married woman, the court nevertheless erred, because it appeared from allegations in the petition that the contracts sued upon were made by Alice Walton for the benefit of her separate estaté, and therefore were binding on her; that, if it did not so appear, it did appear from said allegations that at the time Alice Walton made the note for $792 she W4S living separate and apart from her husband, and for that reason had power to contract as she did; or, if it did not so appear that she was living separate and apart from her husband, it did so appear that she had represented to appellant she was so living and was es-topped to deny that she was.

It seems that the act of 1913 referred to (General Laws, p. 61), not only did not confer upon a married woman power she did not before have to contract generally as a feme sole might (Bank v. Ferguson, 192 S. W. 1088 ; Shaw v. Proctor, 193 S. W. 1104; Bank v. Tinkham, 195 S. W. 880; Aiken v. Bank, 196 S. W. 1017), but deprived her of power she did have before its passage to bind herself by a contract made by her alone for the benefit of-her separate estate (Aiken v. Bank, supra). It seems, therefore, that error of the trial court in ruling as he did cannot be predicated upon power Alice Walton had to contract generally, nor upon allegations in the petition, if there were any, showing that the contracts sued upon were made by her for the benefit of her separate estate. Nor can error of the trial court be predicated upon allegations in the petition showing that Alice Walton and her husband had permanently separated and were living apart from each other ; for the petition contained no such allegations.

It follows that if the trial court erred, as complained of, for any of the reasons assigned by appellant, it was because it appeared from allegations in the petition that Alice Walton was estopped from denying that at the time she executed the note for $792 she had not permanently separated from her husband and was then living separate and apart from him. Davis v. Saladee, 57 Tex. 326. The allegations in the petition with respect to this matter were that Alice Walton represented to appellant “that she and her husband, Cline, were separated and were living separate and apart; that she did not wish him to have, and refused to allow him to have, anything to do with her affairs.”

The allegations were not sufficient to show an estoppel against Alice ■'Wlalton to deny the truth of the representations she was thereby charged with having made to appellant, because, if for no other reason, it did not appear that appellant, being ignorant of the truth about the matter, was induced by a reliance upon the truth of such representations to act in a-way he otherwise would not have acted. MeLemore v. Bickerstaff, 179 S. W. 537; 10 It. C. L. 148, 149.

The judgment is affirmed.
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source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    ARISPE et al. v. CLARK et al.
    (No. 6058.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.
    Rehearing Denied June 27, 1918.)
    1. Homestead <®=^57(1) — Presumptions.
    In the absence of allegation that plaintiffs, claiming homestead, were married, the fact of marriage cannot be presumed from the fact that plaintiffs settled on the land claimed as homestead, resided there, and raised crops thereon.
    2. Jury <S=>25(6) — Right to Juey Trial — Waiver.
    Where defendants at a prior term demanded a jury, but failed to pay the fee, and the cause was continued on the nonjury docket, and plaintiffs did not ask a jury until the day of trial, when they announced they would take advantage of defendant’s demand, they had no right to a jury trial, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5178, 5180, stating the requisites for securing the trial by jury.
    3. Witnesses <§^»67 — Attorney’s Right to Testify.
    An attorney may testify to anything he knows, whether learned before or after his employment as counsel.
    Error from District Court, Jim Wells County; V. W. Taylor, Judgfe.
    Action by Celso Arispe and another against Porrest Clark and another. Judgment for defendants, and plaintiffs bring error. .
    Affirmed.
    See, also, 199 S. W. 500.
    T. Wesley Hook, of Kingsville, and L. Broe-ter, of Alice, for plaintiffs in error. Dough-erty & Dougherty and G. C. Robinson, all of Beeville, and Perkins & Leslie, of Alice, for defendants in error.
   ELY, C. J.

This is an action of trespass to try title to the west half of a 270-acre tract of land, instituted by Celso Arispe, Apolonia Arispe, and Maximiliano Arispe against Hairy Garrett, Porrest Clark, Prances Clark, G. R. Adams, and William Adams. G. R. Adams and Harry Garrett disclaimed, and were dismissed from the suit, with their costs. The cause was tried without a jury, and judgment was rendered in favor of William Adams, Porrest-Clark, and Prances Clark for the land sued for. Por convenience, we style plaintiffs in error appellants, and defendants in error appellees.

In order to recover, it devolved upon appellants to prove that the 270 acres of land in controversy, which were conveyed to Jesus Arispe, the father of appellants, in 1902, about 20 years after the death of their mother, was the community estate of their parents, and consequently that they inherited one-half of the land from their mother. The attempt was made to show that the land was conveyed to Jesus Arispe by Marcelina Vela to settle a debt of $900, which had accrued for cattle that were the community property of Jesus Arispe and his wife. There was testimony which tended to show that such was the case, but there was other testimony tending to show that the land was paid for by money earned by Jesus Arispe after the death of his wife. There was a question of fact presented by the testimony as to whether the land was community or not, and, there being no findings of fact or conclusions of law, there is nothing to show that the judgment of the court may not have been based upon the finding that the property was the separate estate of Jesus Arispe. The evidence failed to establish any homestead rights. It clearly showed that appellants not only assisted their father in the survey and sale of the land, but they actually received the purchase money of a large portion of it. Appellants ask this court to presume that they were married, because they built small houses on the land, and therefore had established homes for their families; but that is carrying the doctrine of presumption further than this court can go. There was no proof that any homestead was established on the land.

The evidence failed to show any title by limitation. The evidence totally failed to show any holding of the land adverse to the title of Jesus Arispe, and, on the other hand, it showed that appellants always recognized the title of Jesus Arispe, and assisted him in the sale of the land, and also assisted him in using the purchase money.

The record shows that at a term preceding the one at which the cause was tried appellees demanded a jury, but did not pay the jury fee, and the cause was continued on the nonjury docket. On January 1, 1917, the case was called and opportunity given to transfer it to the jury docket, and it was dismissed for want of prosecution, but was afterwards reinstated. No request for a jury was ever made by appellants, and the case was kept on the nonjury docket, and appellants agreed that the case snould be tried as a non jury case, and the case was with that understanding set for a certain night during the January term, 1917. All parties appeared at the time for trial, and then appellants announced that they would take advantage of the demand made for a jury by appellees at a former term of the court. Appellees had lost all right to a jury under that demand, and it is clear that appellants’ demand would be of no higher value than theirs. Appellants never at any time demanded a jury. Appellees had never paid any jury fee, and any right to a jury had been waived by them, and it. cannot be claimed that appellants, who tried to appropriate their demand for a jury, would be in any better position than that occupied by appellees.

In article 5178, it is provided that on the first day of each term the court shall call the docket, and note thereon in each case whether or not a jury trial is applied for therein, and by which party; and article 5180 makes it incumbent to deposit with the clerk a jury fee of $5 in the district court and $8 in the county court on the same day on which the demand for the jury is made. Tn this case the jury fee was never paid, and consequently the case was never placed on the jury docket. Evidently appellees had' abandoned all desire or intent to have a jury, and appellants could not, to use their language, “take advantage of the demand for jury, in the case.” That demand had not developed into a right to a jury, and, being lost to appellees by a failure to comply with the law, it was lost to the appellants. Both parties had agreed at the January term, 1917, to try the cause without a jury; and appellants could not, when the cause was called for trial, resurrect a defunct demand for a jury, made by their opponents, which had never grown into a right. The law will see that the right of trial by jury remains inviolate, but the right must be subject to the rules of decency and order. The demand for a jury must be made at the proper time. Loan & Trust Oo. v. Sterner, 57 Tex. Civ. App. 517, 124 S. W. 207, and cases therein cited. The attempt to “take advantage” of appellee’s demand for a jury at a former term appears more like a desire to prevent a trial, because, under the circumstances, it was impossible to have a trial by jury at that term. Petrie v. First Nat. Bank, 83 Tex. 424, 18 S. W. 752, 29 Am. St. Rep. 657; Kenedy Improvement Co. v. Bank, 136 S. W. 558. The second assignment of error is overruled.

The third assignment of error is overruled. The paper objected to was properly admitted in evidence. Appellants showed no title to the land, and the instrument signed by Jesus Arispe could not have affected them in the least. Appellants, at least two of them, were present when the agreement to surrender possession of a part of the land was made, and raised no objection to it, and set up no claims to the land.

The fourth assignment of error is overruled. The objections to the deed are without any force, because they do not go to the legality of the testimony, but rather to its weight. Because it may have contradicted the testimony of appellants would not render it incompetent.

Appellants introduced in evidence the deed from Marcelina Yela to Jesus Arispe for only a single purpose, and then objected to its use for any other purpose by appellees. No reason is given for the objection to the deed being introduced in evidence by appel-lees. The fifth assignment is overruled.

No grounds are presented for excluding the evidence of W. R. Perkins, an attorney for appellees, as to matters ascertained by him before he was employed as counsel in the case. He could testify to anything he knew, whether he ascertained it before or after his employment as counsel. The sixth assignment of error is overruled.

The seventh, eighth, and ninth assignments of error are totally without merit, and are overruled.

The judgment is affirmed.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    SPIKES-NASH CO. et al. v. MANNING et al.
    (No. 1939.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 19, 1918.
    On Motion for Rehearing, May 9, 1918.)
    1. Homestead <@=>168 — Exemption from Execution-Intention to Return to Homestead.
    Where one leased his homestead for six years and moved to another state, then intending to return and live upon the homestead, which intention he had not abandoned at the time of its sale on execution, the sale was void.
    2. Adverse Possession <©=>71(2) — “Color of Title” — Void Deed.
    Under Rev. Civ. St. art. 5672, limiting the time in which certain suits to recover land against persons in peaceable and adverse possession under title or color of title may be brought, a void deed is neither title nor “color of title.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Color of Title.]
    3. Judgment <@=>252(1) — Conformity to Pleading — Relief Not Prayed for.
    In a judgment awarding plaintiffs’ recovery of homestead from claimants under a void deed, it was error to grant to plaintiffs rent for which their petition does not pray, in view of Rev. Civ. St. art. 7733, subd. 7, providing petitions “shall conclude with a prayer for the relief sought.”
    4. Appeal and Error @==>239 — Costs — Motion fob Retaxation — Necessity.
    Appellant’s complaint of the taxation of costs cannot be heard in the absence of a motion to retax below.
    On Motion for Rehearing.
    5. Adverse Possession <@=>93 — Payment of Taxes.
    In a suit to recover possession of land adversely held, the five-year statute of limitation does not apply, where defendant has paid taxes for only four years.

      Appeal from District Court, Henderson County; John S. Prince, Judge.
    Suit by L. B. Manning and others against the Spikes-Nash Company and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed in part; reversed and remanded in part.
    Wynne & Wynne, of Kaufman, for appellants. Richardson & Watkins, of Athens, for appellees.
   HODGES, J.

The appellees, D. B. Manning, S. P. Manning, and John Manning-filed this suit in the form of an action of trespass to try title, and asked that in th’e event they were not entitled to recover all the land to have a partition. The appellants answered by a general denial and plea of not guilty, and further pleaded th’e statutes of limitation of three, five, and ten years. The main defense appears to rest upon a claim of title by limitation under the three-year statute. It is conceded that the appellees owned the land prior to any claim asserted by the appellants. The evidence shows that this land is part of a tract of over 500 acres purchased by James Hudson and B. B. Manning prior to 1895. In 1902 there was a partition between Hudson and Manning; the latter occupied the portion awarded to him with' his wife and family. During the year 1896 Manning’s wife died, leaving him with a number of minor children. Some time thereafter Manning, together with his children, moved to Oklahoma and leased the place to a tenant for six years. At the time of leaving Texas Manning owed the Sp&es-Nash Company an account of approximately $60. During his absence the Spikes-Nash Company brought suit against him on that account in the justice court, cited him by publication as a nonresident, had a writ of attachment levied upon the land in con- ' troversy, and secured a judgment for the debt and costs. An execution was levied upon Manning’s land in 1906, and at a sale by the constable the land was purchased by the Spikes-Nash Company. It is under th’e deed executed by the constable by virtue of that sale under execution that the appellants based their claim of limitation. The evidence shows that they had been in possession under that deed more than three, but less than five, years.

The court submitted two issues to the jury: First. Was it the intention of Manning when he went to Oklahoma to return to the land in controversy and live on the same as his homestead? To this the jury answered, Yes. Second. 1-Iad Manning abandoned his intention to return to Texas and live on the land as his home at the date of the purchase by the defendants? To- this the jury answered, No. Upon those answers the court rendered a judgment in favor of the appellees for the land sued for, and for the sum of $200 as rents. It appears that the parties had agreed that the rental value of the land amounted to $50 per year.

Under the findings of this jury the land was the homestead of Manning, and the sale made by the constable is void. Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 182 Am. St. Rep. 896; Id., 112 S. W. 422. The property being exempt, its seizure and sale by the constable were unauthorized, and his deed conveyed no right or interest to the purchaser. A conveyance which invests the grantee with no title whatever because of a lack of power in the grantor to convey may form the basis of a title by limitation under the five-year statute, but it cannot form a muniment under the three-year statute. To prescribe under article 5672 something more is required than a worthless paper. A void deed is neither title nor color of title. Thompson v. Cragg, 24 Tex. 582; Veramendi v. Hutchins, 48 Tex. 541; Linberg v. Finks, 7 Tex. Civ. App. 391, 25 S. W. 792; Grigsby v. May, 84 Tex. 249, 19 S. W. 344. In; the first case cited above the court uses this language:

“Color of title differs from title only, in externals. The substance of both is the same. Were this not so, if color of title were something intrinsically and substantially less, or weaker than title, then the .wisdom of the Legislature could not be vindicated, in applying the same period of limitation to a possession supported by the one, as is applied to a possession supported by .the other. The shortest period of limitation of which the defendants could avail themselves in support of the title exhibited in evidence is five years.”

The assignments predicated upon the defense of limitation are overruled.

Appellant also insists that the judgment was erroneous in awarding a recovery of $200 as rents. This objection is based upon the fact that the amended original petition upon which the case was tried contains no prayer for1 rents as a part of the relief sought. While the petition alleges damages and rents, it concludes with this prayer:

“Wherefore plaintiffs sued and pray that defendants be duly cited, and that plaintiffs have judgment for the title and possession of said land and premises. But should it be decided that plaintiffs recover only a part of said premises, then that they have partition, and here allege said land is of the value of $15 per acre.”

It will be seen, that this prayer does not ask- judgment for either damages or rents, but for the title and possession of the land alone. Neither is there any prayer for general relief. Article 7733 of the Revised Civil Statutes prescribes the requisites of a petition in an action of trespass to try title. Subdivision 7 is as follows: “It [the petition] shall conclude with a prayer for the relief sought.” It has frequently been held that the plaintiff in a suit has no right to receive relief for which he does not ask. Wheeler v. Wheeler, 65 Tex. 573; Oustott v. Oustott, 27 Tex. 643; Hillebrant v. Barton, 39 Tex. 600; Edgar v. Galveston City Co., 21 Tex. 302; Houston v. Emory Sons, 76 Tex. 282, 13 S. W. 264. We are therefore of.the opinion that the appellees were not entitled to recover tlie rents awarded.

Appellants also complain of the action of th'e court in awarding all of the costs of the suit against them. It appears that other parties had been joined with the appellants as parties defendant, who disclaimed, at the proper stage of the proceedings, in order to evade a judgment for costs. Appellants insist that so much of the costs as were incurred in making those disclaimers parties to the suit and entering judgment in their favor should be taxed against the appellees. The record fails to show that any motion to re-tax the costs was made in the trial court, and this is not the place to first raise that question.

That portion of the judgment awarding the land to the appellees will be affirmed; but for the error indicated the judgment allowing a recovery of rents; will be reversed and remanded. The costs of this appeal will be taxed against the appellees.

On Motion, for Rehearing.

Counsel for appellants insist in their motion for a rehearing that some of the material facts regarding the defense under the five-year statute of limitation have been incorrectly stated in the original opinion. We have again examined the evidence, and find that it shows that the possession of the Spikes-Nash Company began in 1909. Suit was filed on the 21St of November, 1914, less than five years from the beginning of possession under the constable’s deed. But even if we were in error regarding the length of time during which th'e appellant held possession, their defense under the fiveryear. statute would be incomplete because the record shows they only paid taxes for the years 1909, 1910, 1911, and 1912.

There are some other immaterial clerical errors appearing in the original opinion, which will be corrected.
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author: PLEASANTS, C. J.

text:
    ÆTNA LIFE INS. CO. v. OTIS ELEVATOR CO.
    (No. 7368.)
    (Court of Civil Appeals of Texas. Galveston.
    May 3, 1918.
    Rehearing Denied May 29, 1918.)
    1.Master and Servant @=389 — Workmen’s Compensation Act — Subrogation op Insurer-Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246qq, the subrogation clause of the workmen’s compensation statute (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz) by its expressed terms not applying to independent or subcontractors on any contract which is merely auxiliary and incidental to, and is not a part of or process in, the trade or business carried on by the subscriber, did not entitle a workman’s compensation insurer which paid an award to recover over on any theory of subrogation against the elevator company which was responsible for the accident, which consisted in the death of a painter employed by a subcontractor with a building contractor who was remodeling and repairing the building used by a mercantile company ; such mercantile company and the contractor being the insured parties.
    2. Pleading @=34(3) — General Demurrer-Intendments.
    As against a general demurrer, every reasonable intendment should be indulged in favor of the sufficiency of the petition.
    3. Master and Servant @=389 — Workmen’s Compensation Act — Subrogation.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art, 5246qq, only gives the right of subrogation when a cause of action for an injury to an employe-caused by a third person has vested in the injured employé.
    4. Statutes @=176 — Construction.
    The courts are not authorized to extend the scope and application of a statute merely because there is apparently no reason why the right given in one case should not have been given in other cases.
    5. Master and Servant @=388 — Workmen’s Compensation Act — Cause op Action op Beneficiarles.
    Under the workmen’s compensation statute the amount which the relátives of an employé who loses his life in the course of his employment are entitled to receive does not come to them by inheritance from the deceased, nor does it become a part of his estate, and the only cause of action which the relatives have is given by the statute, and vests originally in the beneficiaries named in the statute.
    6. Master and Servant @=>389 — 'Workmen’s Compensation Act — Insurer’s Right op Subrogation.
    An elevator company which caused the death of an employé of a subcontractor painting the store building of a merchandise company, which gave the work of remodeling and repairing the building to an independent contractor, not having become liable to the deceased employé for any sum under the workmen’s compensation statute, no right of subrogation against the elevator company is given by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246qq, to the insurer of the merchandise company and the independent contractor, which paid an award for the death.
    7. Master and Servant @=389 — Workmen’s Compensation Act — Subrogation op Insurer.
    The right of equitable subrogation exists in favor of a fire insurance company which has paid for loss occasioned by the negligence of third persons, but no such right exists in favor of a workmen’s compensation insurer, despite the fact that premiums for such insurance are not paid directly by the employés.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by the ¿Etna Life Insurance Company against the Otis Elevator Company. From judgment pf dismissal, plaintiff appeals.
    Affirmed.
    C. R. Wharton, of Houston, for appellant. Lassiter & Harrison and Robt. M. Rowland, all of Ft. Worth, and John Charles Harris, of Houston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellant against the appellee recover the sum of $3,408.79, the amount paid by appellant under a policy of insurance issued by it under the workmen’s compensation statute of this state in favor of Garbade-Eiband & Co. of Galveston. This amount was paid by appellant to the beneficiaries of a workman employed by a subcontractor wbo was engaged in painting the store building of the said firm of Garbade-Eiband & Co., said employé having been killed through the alleged negligence of appellee while engaged in performing the duties of his employment, and being protected by the insurance policy issued by appellant as aforesaid.

The trial court sustained a general demurrer to plaintiffs petition, and, plaintiff declin-, ing to amend, the suit was dismissed.

We copy from appellant’s brief the following statement of the substance of the allegations of the petition:

“That in September, 1914, plaintiff executed and delivered to Garbade-Eiband & Co., of Galveston, Tex., a policy of workmen’s compensation insurance, by the terms of which it insured and guaranteed said Garbade-Eiband & Co., and William H. Jannsen, contractor, employed by Garbade, Eibank & Co., against such claims as might be made by employés of the Garbade-Eiband & Co. and William H. Jannsen under the workmen’s compensation statute of the state of Texas, while engaged in building, repairing, and constructing a certain building in the city of Galveston used and to be used by said Garbade-Eiband & Co. as a store in which to carry on their business as merchants; that the said Garbade-Eiband & Co. became subscribers under the Workmen’s Compensation Law, as provided by our compensation statute, and having procured said policy of insurance with the plaintiff herein, the plaintiff iGtna Life Insurance Company became the association, as that term is used in the workmen’s compensation statute of the state of Texas, and especially as that term is used in section o, pt. 2, of said compensation statute; that said William H. Jannsen was employed as an independent contractor for the purpose of doing the work of rebuilding and repairing the building for Garbade-Eiband & Co.; that in October, 1914, Garbade-Eiband & Co. entered into a contract with the Otis Elevator Company, an independent contractor, by the terms of which said Otis Elevator Company agreed to install certain elevators in the building under construction, and to furnish employés and material for elevators and do all the work necessary to assembling, installation and completion of the elevators ready for use; that on or about this date the said Jannsen, contractor, contracted orally with one Thomas E. Davis, a painter, to employ certain painters and to do the painting necessary to be done upon said construction work, and the said Davis employed one Ernest E. Gillette, who at the time hereinafter mentioned was working upon said building.
“The plaintiff avers that in October, 1914, while the building was in process of construction, the said William H. Jannsen, contractor for Garbade-Eiband & Co., had various employés and subcontractors and their employés at work upon the building, doing the things necessary to effect its completion, and one of these subcontractors was said Davis, the painter, and one of these employés was Ernest E. Gillette, who was employed and engaged in doing the work of painting the building; that said Gillette had been assigned by said Davis to do the particular work of painting certain windows in one of the elevator shafts, and was at the time of his deáth engaged in doing this particular work.”

Facts are then alleged showing that the injury and death of Gillette was caused by the negligence of an employé of appellee for which negligence appellee was liable. The petition then proceeds as follows:

“The plaintiff avers that under the requirements of the workmen’s compensation laws of the state of Texas it became bound and compelled to pay to the surviving relatives of said Gillette the total sum of $4,752; that it _ would have been required to pay this sum in installments of so much per week, but it availed itself of the right to make a lump sum settlement, and under appropriate orders from the Industrial Accident Board of the state of Texas had Eully liquidated the claim by paying $3,408.79.
“The plaintiff avers that under the statutes and laws and .decisions of the state of Texas the Otis Elevator Company was liable to said Gillette for the injuries which he received, and became liable upon his death, which resulted from the negligence aforesaid, to pay for the benefit of his estate and to his heirs and legal representatives and beneficiaries damages for the injuries inflicted upon said Gillette and for having negligently caused his death. Therefore the plaintiff herein is entitled to recover indemnity from the Otis Elevator Company because of the wrongful negligence of the Otis Elevator Company aforesaid, and therefore the plaintiff herein is, under the Texas workmen’s compensation statute aforesaid, entitled to recover the amount of compensation which it paid because of the death of said Gillette.
“The plaintiff further avers that the policy of insurance which it issued to Garbade-Eiband & Co. and Jannsen stipulated, among other things, that the plaintiff, ¿Etna Life Insurance Company, should be subrogated to all rights which the assured, Garbade-Eiband & Co. or Jannsen might have against any person, partnership, corporation, or estate as respects any payment made under said policy; and the plaintiff avers that, independent of the workmen’s compensation statute of the state of Texas, and the subrogation created thereby in section 6, pt. 2, aforesaid, the Otis Elevator Company became and was at common law and in equity liable to Garbade-Eiband & , Co. and Jannsen for such damages, loss, and injuries as said Gar'bade-Eiband & Co. and Jannsen sustained on account of the negligence of its employé Green, and became liable to pay the said Garbade-Eiband & Co. and Jannsen any sums of money that said company and Jannsen might become liable for and might have to pay to any other person or persons on account of the negligence of said Green; that because of the subrogation clause in the policy between the plaintiff and the said Garbade-Eiband & Co. and Jannsen above referred to the plaintiff- has succeeded to all of the rights and privileges of the said Garbade-Eiband & Co. and Jannsen against the Otis Elevator Company, and is subrogated to such rights, privileges and remedies as the said Gar-bade-Eiband & Co. and Jannsen had and have against the Otis Elevator Company, because of the negligence of the said Green, and the plaintiff prays judgment for the amount paid in settlement to Gillette’s estate, $3,408.79, and interest”

Under its first assignment of error appellant contends that the court erred in sustaining defendant’s general demurrer to plaintiff’s petition, because the facts alleged in the petition entitle plaintiff to recover against the defendant under the subrogation clause of the workmen’s compensation statute of this state. The statute referred to in the assignment is article 5246qq of Vernon’s Sayles’ Civil Statutes, and is as follows:

“If a subscriber enters into a contract, written or oral, with an independent contractor, to do such subscriber’s work, or if a contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contract with "the subscriber, and the association would, if such work was executed by em-ployés immediately employed by the subscriber-, be liable to pay compensation under this act to such employés, the association shall pay to such employés any compensation which would be payable to them under this act if the indeiDendent or subcontractor were subscribers. The association shall, however, be entitled to recover indemnity from any other persons who would have been liable to such employés independently of this section, and if the association has paid compensation under the terms of this section, it may enforce in the name of the employés, or in its own name and for its own benefit the liability of such other persons. This section shall not apply to independent or subcontractors on any contract which is merely auxiliary and incidental to, and is no part of or process in, the trade or business carried on by the subscriber.”

By the express terms of this statute it does not apply “to independent or subcontractors on any contract which is merely auxiliary and incidental to, and is not a part of or process in, the trade or business carried on by tlie subscriber.” The petition discloses that Garbade-Eiband & Co., to whom the insurance policy was issued, and who, it is alleged, were the subscribers as that term is used in the workmen's compensation statute, were engaged in the m&cantile business in the city of Galveston. The trade or business of the independent contractor, Jannsen, was that of a contractor and builder, and the subcontractor, Davis, was a contractor and painter. We think it clear that neither the contract between the subscribers and the independent contractor nor that between the independent and subcontractor was “a part of or process in the trade or business carried on by the subscriber, Gar-bade-Eiband & Co., but was merely auxiliary and incidental thereto. It certainly cannot be contended with any show of reason that remodeling, repairing, and painting a store building is a part of or process in the trade of buying and selling' goods and merchandise, and is not merely auxiliary and incidental thereto. If Jannsen was not a “subscriber” under the provisions of the workmen’s compensation statute, Gillette, the employs of the subcontractor, Davis, was not entitled to receive compensation from appellant for the injuries received by him, nor were his heirs or beneficiaries entitled thereto. The petition alleges that Gillette’s beneficiaries were entitled to such compen'sation, and it may be that under the rule that, as against a general demurrer, every reasonable intendment should be indulged in favor of the sufficiency of the petition, that this allegation considereu by itself should be construed as including the allegation that Jannsen was a subscriber, but this intendment cannot be indulged in the face of the direct and positive allegation that the policy was issued to Garbade-Eiband & Co., and that they became the subscribers.

It is further to be observed that the statute which we have quoted above only gives the right of subrogation when a cause of action for an injury to an employé caused by a third person has vested in the injured employs. This is not giving the right of sub-rogation to a cause of action accruing under the compensation statute to the beneficiaries of an employe who has been killed by the negligence of a third person. We can see no reason why the statute should not have conferred the right as well in the one case as in the other, but the fact remains that it has 'not done so, and the courts are not authorized to extend the scope and application of the statute merely because there is apparently no reason why the right given in the case named therein should not have been given in other cases. Turner v. Eddy & Cross, Receivers, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262.

Under the workmen’s compensation statute the amount which the relatives of an employé who loses his life in the course of his employment are entitled to receive does not come to them by inheritance from the deceased, nor does it become a part of the deceased’s estate, and the only cause of action which the relatives have is given by the statute, and vests originally in the beneficiaries named in the statute.

The appellee not having become liable to Gillette for any sum, m> right of subrogation is given by this statute, and appellant cannot enforce against appellee in “Gillette’s name” or “in its own name” a liability which never existed in favor of Gillette.

By its second assignment of error appellant contends that, independent of the statute, it had the right of subrogation in equity. It is settled by decisions that the right of equitable subrogation exists in favor of a fire insurance company who has paid for loss occasioned by the negligence of third persons, and that no such right exists in favor of a life or accident insurance company. Insurance Co. v. Easton, 73 Tex. 167, 11 S. W. 180, 3 L. R. A. 424; Wood v. Railway, 15 Tex. Civ. App. 322, 40 S. W. 24; Railway Go. v. Insurance Co., 84 Tex. 152, 19 S. W. 459; Ætna life Ins. Co. v. Parker, 96 Tex. 287, 72 S. W. 168, 580, 621.

It seems to us that the insurance provided under the workmen’s compensation statute is purely accident insurance, and the mere fact that premiums for such insurance are not paid directly by the employés should not have the effect of giving an equitable right of subrogation to the insurance company when no such right exists in other species of accident insurance.

Eor the reasons indicated, we think the trial court did not err in sustaining the general demurrer, and the judgment must be affirmed.

Affirmed.
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text:
    SKEEN v. SKEEN.
    (No. 1955.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1918.)
    Evidence <&wkey;444(2) — Parol Evidence, Affecting WRITING.
    Evidence that written agreement for partition of property, made by the attorneys of the parties to a divorce suit, was not to become binding upon either of the parties unless judgment for divorce was rendered, was not inadmissible, on motion to enforce the agreement after judgment refusing the divorce, as parol testimony varying or contradicting a writing, there being a clear distinction between evidence tending to show when or under what circumstances a writing is to become effective, and that which contradicts the writing itself, evidence of the former character not coming within the general rule excluding parol evidence in conflict with the writing.
    Appeal from District Court, Delta County.
    Suit for divorce by Susan Skeen against W. E. Skeen, plea in abatement being sustained and divorce denied, wherein during the proceedings written agreement was made by the attorneys providing for division of the community property. On motion by J. E. Skeen, as next friend of Susan Skeen, she being insane, to enforce the agreement for division of property after judgment refusing divorce. Prom judgment denying the motion, movant appeals.
    Affirmed.
    James Patteson, of Cooper, for appellant. I. B. Lane, of Cooper, and A. P. Park, of Paris, for appellee.
   HODGES, J.

In December, 1914, Susan Skeen brought suit against her husband, W. E. Skeen, for a divorce and partition of their community property. That suit resulted in a judgment denying the divorce and any division of the property. An appeal was prosecuted to the Court of Civil Appeals for the Fifth Supreme Judicial District, in which the judgment denying the' divorce was affirmed, but the case was remanded for the purpose of litigating the right of the appellant to enforce a partition agreement which had been made. The facts are fully stated in the opinion by Chief Justice Rainey, found in 190 S. W. 1118. In a second trial before the court the following facts were developed: In 1909 Susan Skeen was adjudged insane and sent to an asylum for safe-keeping, where she has remained since, except at intervals, when she appeared to have regained her reason, and was permitted to return on a furlough. During a lucid interval in 1914 she filed the suit against her husband for a divorce, and afterward again lost her mind. A plea in abatement was sustained, and the divorce denied, as stated in the opinion above referred to. During the pendency of the divorce proceedings a written agreement wás entered into and signed by the attorneys representing the plaintiff and defendant, which provided for a division of the community property. J. E. Skeen, as next friend for his mother, -Susan Skeen, filed a motion to enforce that agreement after the judgment refusing the divorce. The court in the trial below found that the agreement was intended by the parties, not as a separation agreement, but to be effective only in case the plaintiff secured a divorce; that in such an event it was to form the basis of a decree of partition, but in the event a divorte was not granted it was to be null and void. The court further concluded that Mrs. Skeen at the time the agreement was made had sufficient mental capacity, but thereafter became insane and was returned to the asylum at Terrell, where she is now confined. The court concluded as a matter of law that the motion for a division of the property according to the terms of the written agreement should be denied, and entered judgment accordingly.

In the course of the trial testimony was admitted showing, in substance, the facts found by the court; that is, that the written agreement for the partition of the property was not to become binding upon either of the parties unless a judgment for a divorce was rendered; otherwise it was to be void. The errors assigned attack the ruling of the court in admitting that testimony, and also challenge the sufficiency of the legal evidence to sustain findings of fact upon which the judgment is based. It is contended that the admission of this evidence violates the rule which forbids the introduction of parol testimony to vary or contradict written instruments. There is a clear distinction between evidence tending to show when or under what circumstances a writing is to become éffec-tive, and that which contradicts the writing itself. Evidence of the former character does not come within the general rule which excludes parol evidence when in conflict with a writing. Burke v. Dulaney, 158 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Hartford Fire Ins. Co. v. Wilson, 187 U. S. 467, 23 Sup. Ct. 189, 47 L. Ed. 261; 10 R. C. L. 1039; 2 Page on Contracts, § 1209.

We are of the opinion that the judgment should be affirmed.


author: I-IODGES, J.

text:
    CHAPMAN v. HARGROVE.
    (No. 1963.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 17, 1918.
    Rehearing Denied May 16, 1918.)
    Assault and Battery <&wkey;13 — Civil Liability — Trial — Instructions— Sele-De-eense.
    In a civil action for assault, the criminal law rule that the aggressor may attack in self-defense when it reasonably appears he is about to be attacked by the other person whether the other had such intent to attack or not is inapplicable, and defendant must prove that plaintiff was culpably responsible for the deceptive, appearances to escape liability for defensive assault.

      Appeal from Delta County Court; T. E. McMillan, Judge.
    Suit by J. O. Hargrove against P. E. Chapman. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    James Patteson, of Cooper, for appellant. Newman Phillips, of Cooper, for appellee.
   I-IODGES, J.

This suit was instituted by the appellee to recover damages for personal injuries resulting from an assault made upon him by the appellant, Chapman. In a trial before a jury he recovered a judgment for $150. Among other things, the defendant pleaded self-defense. The court presented that issue generally in his main charge. In this appeal it is insisted that the general charge was not full enough, and that the following special charge requested by the appellant should have been given:

“You are charged that a person in the lawful defense of his person does not have to wait until his antagonist has assaulted him, but that he has the right to bring on the fight if from the actions at the time it shall reasonably appear to him that his antagonist is about to assault him, although the person so assaulted may have had no unlawful intent in his actions; and you are charged that you must look at this from the standpoint of the person that is about to be assaulted.”

The rule recognized as proper in presenting the plea of self-defense in criminal prosecutions is not applicable to civil suits for damages like this. In criminal prosecutions the purpose of the law is to prove and punish conduct prompted by an evil motive; and in determining the animus of the accused in beginning an aggressive defense of himself it is necessary' to look at the surroundings from his standpoint. But in a civil action for damages resulting from an assault the purpose is compensation for an injury, and the aggressor cannot escape upon a plea of self-defense by merely proving that he thought he was about to be attacked, when no attack was contemplated by the injured party. To justify a defensive assault provoked by deceptive appearances the defendant must show, not only a situation which creates a reasonable apprehension of danger to himself, but one for which the assaulted party is culpably responsible. Otherwise the injured party might be made to suffer for conditions over which he had no control. In an action for- actual compensation the injured party has some right to have the offensive conduct viewed from his standpoint. She assailant who strikes an unnecessary blow cannot in every instance shift the consequences of his mistake to the injured victim.

In this ease the appellant’s own testimony disclosed a situation which shows that the court’s general charge was a more liberal presentation of that defense than he was entitled to demand.

The judgment is affirmed.
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text:
    HODNETT v. TEXAS & P. RY. CO.
    (No. 1928.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 13, 1918.)
    Negligence &wkey;>135 — Injuby to Sekvant — Contbibtjtoby Negligence — Suejstciency oe Evidence.
    In an action against a railroad for injuries to its ’locomotive fireman when he slipped on a smooth metal apron covering the space between engine and tender which he had caused to become slippery in sprinting coal to allay dust, evidence held sufficient to sustain the jury’s finding of contributory negligence, resulting in deduction from the damages.
    Appeal from District Court, Upshur County ; P. O'. Beard, Judge.
    Suit by T. E. Hodnett against the Texas & Pacific Railway Company. From judgment for plaintiff on verdict assessing damages at $10,500, from which was deducted one-half on account of contributory negligence, plaintiff appeals.
    Affirmed.
    S. P. Jones, of Marshall, and Briggs & Florence and Maberry & Maberry, all of Gil-mer, for appellant. T. H. Briggs, of Gilmer, Young & Stinchomb, of Longview, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellee.
   HODGES, J.

The appellant was injured while in the service of the appellee as a locomotive fireman. A suit by him for compensation resulted in a verdict assessing his damages at $10,500, from which was deducted one-half that sum on account of his contributory negligence. In this appeal the appeL lant contends that the evidence was not sufficient to raise the issue of contributory negligence and that the deduction made by the jury was wholly unwarranted.

The negligence complained of in the appellant’s suit is that the railway company failed to furnish him a safe place in which to perform ’his duties while operating the train; that the metal apron which covered the space between the engine and the tender was smooth instead of being corrugated or rough, as it should have been; that when wet it became slippery and dangerous. While the appellant was in the performance of his duties he slipped and fell and sustained the injuries for which he sued. He testified that he got on the engine at Longview, Tex., about 20 minutes before the train started; that after making some examinations he entered upon the performance of his duties; that the coal was piled high in the tender, and it was necessary at frequent intervals to shovel it into the furnace of the engine; that in order to allay the dust which had accumulated a hose which the company had supplied for that purpose was attached to the injector, and with it he sprinkled the coal with water, some of which got on the apron and made it slippery. The appellee pleaded, among other things, that the appellant was guilty of con-tributary negligence in using the apron after discovering that its surface was smooth and in sprinkling the apron with water after knowing the character of the surface exposed. Other witnesses testified that the smooth surface of the apron was easily observed by one occupying the position of the fireman. The jury was • therefore justified in concluding that at the time the appellant entered upon the performance of his duties he knew that the apron had a smooth surface and that it was unsafe when wet. The jury also had a right to conclude that sprinkling the coal and the apron was for the purpose of allaying the dust which handling the coal created, and that this was merely for the convenience and comfort of the appellant and the engineer; that it was no part of the duties essential to the operation of the train. Counsel for appellant call attention to the fact that the hose was used for the very purpose for which it had been furnished and in the usual way. That may be true, but the jury had a right to conclude that a prudent man, knowing that ■the apron had a smooth surface and that when wet it became slippery and unsafe, would either have refrained from using the hose or would have avoided sprinkling the apron. If that danger was so imminent that the railway company should have anticipated that it might cause an injury, we find no reason for saying that the appellant should have been less cautious about his own safety. The fact that it was customary to use the hose in that way and for that purpose, while a circumstance tending to exonerate the appellant from the charge of negligence, was not a conclusive vindication. He cannot be permitted to close his eyes and blindly follow a custom which a little reflection would convince him was, under the existing circumstances, dangerous. Had the wetting of the apron been an unavoidable incident to the performance of a duty essential to the proper operation of the train, the situation would be different. But in this case the jury could easily infer that sprinkling the coal was to alleviate a condition much less of a menace than that caused by putting water on .the apron.

We are not prepared to say that the evidence does not sustain the finding of the jury, and the judgment is affirmed.
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author: JENKINS-, J.

text:
    HUME v. MOORE.
    (No. 5549.)
    (Court of Civil Appeals of Texas. Austin.
    March 20, 1918.
    Rehearing Denied May 8, 1918.)
    Appeal and Error <&wkey;1175(l) — Reversal— Rendering Judgment — Construction.
    Where on reversal judgment was rendered in trespass to try title giving defendant right to writ of possession provided plaintiff did not make certain payment into court within 12 months, and on default defendant to make a payment within 6 months after expiration of such 12 months, and retain possession, the time within which payment could be made did not start running, where writ of error was asked for, until application therefor had been passed on.
    Appeal from District Court, McLennan County; J. Walter Cocke, Special Judge.
    Action by S. D. Hume against Marvin Moore. Judgment for defendant reversed upon appeal, whereupon defendant brought error, which was denied. Writ of possession issued in favor of plaintiff, and defendant moves to quash the writ.
    Writ quashed.
    See, also, 188 S. W. 712.
    Pat M. Neff, of Waco, for the motion. W. B. Carrington and W. L. Eason, both of Waco, opposed.
   On Motion to Quash Writ of Possession — Findings of Pact.

JENKINS-, J.

Appellant brought suit in trespass to try title to recover of appellee certain lots in Waco, Tex. The judgment of the district court was in favor of appellee. Upon appeal this court, on June 14, 1914, reversed the judgment of the court below, and rendered judgment awarding title to appellant, upon condition that he pay to the clerk of this court for appellee, within 12 months from said date, $2,600, with interest at the rate of 6 per cent, .per annum, and upon payment of which sum the clerk of this court should issue a writ of possession in favor of appellant, and further providing that, if the appellant should fail to make such payment, the appellee should have 6 months from the expiration of said 12 months in which to pay to the clerk of this court for appellant $1,600, upon the payment of which sum the appellant’s right to the possession of said premises should be forever barred. Upon the failure of appellee to make such payment a writ of possession was to issue in favor of appellant.

Appellee in due time and in manner provided by law presented to the Supreme Court of this state his application for a writ of error, which was by said court denied on November 28, 1917.

Neither the appellant nor the appellee has paid to the clerk of this court any sum of money, as provided in the judgment of this court.

The clerk of this court on February 12, 1918, issued a writ of possession to the sheriff of McLennan county, commanding him to put appellant in possession of said premises.

On March 5, 1918, the appellee filed in this court a petition asking that we order said writ of possession recalled, alleging that the sheriff of McLennan county was about to proceed to execute the same. We issued the order as prayed for, and set this matter down for hearing on this date.

Opinion.

It will be seen from the foregoing statement of facts that more than 18 months had elapsed from the rendition of judgment by this court when the writ of possession was issued by the clerk of this court, but that only 2 months and 14 days had elapsed since the writ of error herein was denied by the Supreme Court. The issue here is: Did the time for the respective payments, as provided by the judgment of this court, begin from the date of said judgment or from the time the writ of error was denied by the Supreme Court?

Upon the authority of Fenton v. Bank, 27 Tex. Civ. App-. 231, 65 S. W. 199, we hold that time for such payments did not begin to run until the denial of the writ of error. We quote from said decision as follows: “The 90 days’ time in which the bank was allowed to pay the money as a condition to the recovery of the land did not begin to elapse until the 'Supreme Court refused the writ of error to the Court of Civil Appeals.”

The clerk of this court will be governed by this opinion in the issuance of a writ of possession herein.
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author: HARPER, C. J.

text:
    BRADFORD v. SORENSON.
    (No. 862.)
    (Court of Civil Appeals of Texas. El Paso.
    May 23, 1918.)
    Adverse Possession &wkey;>57 — Alleys — Evidence.
    Evidence held to show that the defendant had the alley fenced and covered with a' barn for more than ten years, thus acquiring title by the statute of limitations.
    Appeal from District Court, Nolan County; C. E. Dubois, Judge.
    Suit by Paul B. Sorenson against J. A. J. Bradford. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Beall & Douthit, of Sweetwater, for appellant. Ed. J. Hamner, of Sweetwater, for ap-pellee.
   HARPER, C. J.

This suit was instituted by appellee to compel appellant, by injunction, to open up and vacate the east end of an alley through block 23, Eastern addition to the town of Sweetwater, upon the allegations that the alley had been dedicated, first, by a plat of the addition being filed and recorded, and, second, that it was dedicated by reason of the fact that the lots had at all times since November, 1882, been conveyed with specific reference to said alley.

Defendant denied that the lots had been sold and transferred with reference to the alley; denied that it had been dedicated by recorded plat; and pleaded title by virtue of ten years’ peaceable, adverse possession, use, and occupancy. Tried before the court without jury, and resulted in judgment granting writ of injunction commanding appellant to open the alley, from which this appeal.

There are two questions raised by appellants: First that the evidence does not establish a dedication of the alley to the public use; and, second, that the evidence is conclusive that appellant has acquired title by virtue of the statute of limitation of ten years.

Several witnesses testify positively that the alley was fenced and covered by a barn continuously for more than ten years prior to the institution of this suit, and there is no evidence of any probative value to the contrary. One witness, the only one referred-to by appellee in support of the judgment, stated:

That after a certain house burned down “the fences were not kept up for a while; I think now, to the best of my recollection, we didn’t have a stock law for a year or two after that, and I think that place was left open. I think I have seen stock in there.”

Such evidence has no probative force; at least, could not be held sufficient to refute the positive testimony of several witnesses, who by their testimony show that they were in a position to know the fact, and are not impeached. Appellant having conclusively established title by limitation, it becomes immaterial whether the property was in fact dedicated as a public alley.

Reversed and rendered.

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


author: LEVY, J.

text:
    COLEMAN v. TEXAS PRODUCE CO.
    (No. 1979.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 2, 1918.)
    1. Limitation of Actions <&wkey;83(2) — Death-Suspension oe Limitation Period.
    By Vernon’s Sayles’. Ann. Civ. St. 1914, art. 5703, death suspends the limitation period for a year, unless an administrator or executor has sooner qualified.
    2. Executors and Administrators <&wkey;7 — In- . dependent Executor — Qualification prom Admission to Probate.
    An independent executor is qualified and competent to act from the time the will appointing him is admitted to probate.
    Appeal from Bowie County Court; J. B. Lytal, Judge.
    Suit by the Texas Produce Company against T. N. Coleman, executor. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    The appellee brought the suit against appellant in his capacity as independent executor of the estate of Susan C. Whitteridge, deceased. The suit was to establish a debt against the estate upon the balance of an open account for goods and merchandise alleged to have been purchased by Susan O. Whitteridge during the year 1913 and up to June 10, 1914. The appellant pleaded, besides other matters, the two-year statute of limitation. Susan C. Whitteridge died testate on July 2, 1914. The will was probated on the application of T. N. Coleman on January 19, 1915. The will appointed T. N. Coleman as executor, and provided that he should not give bond, and that no action be had in the county court other than to probate the will and return an inventory, ap-praisement and list of claims. On May 22, 1915, T. N. Coleman took and subscribed the oath and filed it in the office of the county clerk on June 14, 1915. On June 14, 1915, T. N. Coleman filed in the county clerk’s office an inventory, appraisement and list of claims. The suit was filed on January 1, 1917. At the date of death of Mrs. Whit-teridge 22 days had elapsed from the time the last item was charged on the account.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant. Wheeler & Wheeler, of Texar-kana, for appellee.
   LEVY, J.

(after stating the facts as above).

By the statute death suspends the limitation period for a year, unless an administrator or executor has sooner qualified. Article 5703, Vernon’s Sayles’ Stat. And an independent executor, as here, is qualified and competent to act from the time me will appointing him is admitted to probate. Patten v. Cox, 9 Tex. Civ. App. 299, 29 S. W. 183. And the eases cited by appellee are not in conflict with the ruling in the above case. The case of Connellee v. Roberts, 1 Tex. Civ. App. 363, 23 S. W. 187, only decides that it is not essential to the qualification of an independent executor that any oath as such should be taken by him, and an inventory that does not embrace every item of property cannot be collaterally attacked as incomplete. In this same case the court, in speaking of the case of Roberts v. Connellee, 71 Tex. 11, 8 S. W. 626, said:

“The question before the court upon that appeal was not so much the necessity of an inventory to the validity of the sale in question as it was the kind of evidence necessary to prove the return of such inventory. No intimation was made in that opinion of a desire or intention to overrule or call in question the previous cases of Cooper v. Horner, 62 Tex. 356, and Willis v. Ferguson, 46 Tex. 496, to the effect that the return of an inventory would not be essential to the validity of a sale made by an independent executor in all cases.”

Therefore it is believed that the statute of limitation of two years commenced running as to all right of action on the open account in favor of appellee against the executor at the time the probate of the will by the independent executor. And, in view of the undisputed facts, the court should have rendered judgment in favor of the executor on his said plea of limitation of two years. The judgment is reversed, and a judgment is here rendered in favor of the appellant, with costs of the trial court and of this appeal.
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author: FLY, O. J.

text:
    LEWIS v. TAYLOR et al.
    (No. 6039.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 8, 1918.
    On Motion for Rehearing, June 12, 1918.)
    1. Limitation or Actions &wkey;>24(4) — Sales on Whitten Obder.
    An action for the price of goods or commodities sold on a written order, containing no express promise to pay, is not within the two years’ statute, but the four years’ statute of limitation.
    2. Limitation or Actions <&wkey;24(4) — Sales ON WRITTEN ORDER — “WRITTEN CONTRACT.”
    Where letter was written to defendant describing wheat to be sold at price certain, to which defendants replied in writing that they would take a carload if sample suited, and the samples were sent and a telegram or letter was forwarded ordering the car of wheat which was shipped and accepted, the contract was in writing under the statute of limitations.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Written Contract or Agreement.]
    Appeal from Nueces County Court; David M. Picton, Jr., Judge.
    Action by A. S. Lewis against W. G. Taylor and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded. On motion for rehearing.
    Judgment remanding cause set aside and judgment rendered.
    J. D. Todd, of Corpus Christi, for appellant. R. B. Russell, of Corpus Christi, for appellees. *
   FLY, O. J.

Appellant sought to recover of appellees the sum of $300, alleged to be due on a consignment of wheat shipped from Ft. Worth to Corpus Christi, Tex., on or about August 26, 1913. The original petition was filed on December 31, 1913. On September 27, 1915, appellant filed a second amended petition in lieu of a first amended petition which had been filed on September 25, 1917. The cause was tried on the second amended petition, in which it was alleged that the parties had dealt with each other as merchant and merchant, and that they had mutual current accounts with each other, and that the wheat had been delivered upon an order from appellees and accepted by appellant. Appellees denied that there had ever been any current, mutual accounts between appellant and appellees, and that if there was any indebtedness it was due and payable on an open account on August 26, 1913, more than two years before the suit was instituted, and they pleaded the statute of two years’ and that of four years’ limitation. The court sustained the plea of. two years’ limitation and rendered judgment in favor of appellees.

The evidence clearly showed that appellant shipped appellees a carload of wheat at a reduced price on August 26, 1913. The testimony also shows that the car of wheat was ordered by letter and telegram, for appellant swore, and was not contradicted, that, while the letter or telegram was misplaced or lost, it was his recollection that a car was ordered. Afterwards appellees telegraphed appellant that the car of wheat had not arrived and to trace it. Not being able to trace the first car of wheat, the second was sent on August 26, 1913, and was received by ap-pellees. On November 6, 1913, appellees s&at appellant a Chech for $50. An acceptance of the offer to sell the wheat was given in a letter dated June 21,1913, and was conditioned on the samples being satisfactory. They must have been satisfactory, because the wheat was shipped and accepted by appellees.

The acceptance of the offer to sell was in writing, and the indebtedness' upon which the suit is prosecuted is founded upon the promise to pay the price of the wheat which was fixed in a letter from appellant. The order for the car of wheat was in reply to that letter, and construing the two together the contract arose. Afterwards the price was lowered, but the whole transaction rested on the two letters which formed the contract. An action for the price of goods or commodities sold on a written order, although the order contains no express promise to pay, is not within the two years’ statute, but the four years’ statute of limitation. Laredo Elec. & Machine Co. v. U. S. Elec. Light Co., 26 S. W. 310; Tinsley v. Penniman, 8 Tex. Civ. App. 495, 29 S. W. 175.

This suit was instituted on December 31, 1913, within the four years’ period and arrested the running of the statute. The amended pleadings did not set up a new cause of action. The first suit was for the price of a car of wheat; the latter for the price of the same car of wheat.

Appellees ordered and accepted the wheat and failed and refused to pay for it, and give no explanation or excuse for such failure. They seek to defeat the debt by a plea of limitation, but the record fails to sustain the plea. A letter was written to them describing certain wheat, which appellant desired to" sell at a certain price, to which ap-pellees replied in writing that they would take a carload if samples suited them, the samples were sent, and a telegram or letter was forwarded ordering the carload of wheat which was shipped and accepted by appellees. The contract was in writing under the statute. Groos v. Brewster, 34 Tex. Civ. App. 140, 78 S. W. 359; Fidelity Co. v. Callahan, 104 S. W. 1073. In the ease of Donada v. Power, 184 S. W. 793, the subject is thoroughly discussed by this court, through Associate Justice Moursund. The suit in that case was for the rent of 20 acres of land leased under a written contract, in which there was a clause giving the tenant the right to take 17 acres more, and the plaintiff also sought to recover the rent for the 17 acres which the tenant had elected to take. In the case cited, as well as in the case of Hughes v. Smith, 83 Tex. 499, 18 S. W. 955, it was held that a change as to quality of material would not destroy the written contract, just as we hold herein that a change in the price which was accepted by appellees would not affect the written contract.

In the Donada Case it , is intimated that the case of Voeleker v. McKey, 60 S. W. 798, is not in accord with the ruling of this court as to an order and acceptance in writing, and that may possibly be true; but the facts are so sparsely stated in the opinion that the holding is somewhat obscure. A rehearing was granted, however, and a different result reached, on the ground that there was a promise to pay in the order. If that be true, the first opinion was obiter dictum and not an authority. Voeleker v. McKay, 61 S. W. 424.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellant prays that our judgment remanding this cause be set aside and judgment here rendered in favor of appellant for the sum of $212.40, which the uncontroverted evidence shows is due him on his claim. The case seems to have been fully developed, and, there being no issue to be tried, our judgment remanding the cause is set aside and judgment here rendered that appellant recover of appellees the sum of $212.40, with interest at 6 per cent, per annum from January 1, 1914, and all costs in this behalf expended.
      <fe^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    SACKS v. STATE.
    (No. 5036.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Weights and Measures <®=>5 — “Coed oe Wood.”
    A “cord of wood” is a measurement of wood containing-128 cubic feet, otherwise expressed as a pile of wood 8 feet long, 4 feet high, and 4 feet wide, which would make that measurement.
    2. Weights and Measures <®=>6 — Coed oe Wood — Statute.
    The law (Pen. Code 1911, art. 990) does not require that, in order to ascertain that a quantity of wood is a cord, it shall be piled 8 feet long, 4 feet high, and 4 feet wide, but any other measurement or pile that contains a full cord would be sufficient.
    3. Weights and Measures <S=»12 — Cord oe Wood — Evidence.
    In a prosecution under Pen. Code 1911, art. 990, for using a false measure for measuring cordwood, evidence held not to sustain a conviction.
    Appeal from Harris County Court, at Law; Walter E. Monteith, Judge.
    Ed Sacks was convicted of using false measures for measuring cordwood, and he appeals.
    Reversed, and cause remanded.
    Bradley & Fogle, of Houston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for using a false measure for measuring cordwood under article 990, P. C.

The complaining witness, Mr. Brown, testified that he ordered from appellant’s wood-yard in Houston, over the phone, two cords of firewood, and later in the same day, when the bill therefore was presented, he paid it; that when he examined the wood later he thought it was less than two cords, and so informed appellant. A few days later he stacked the wood, and found that it was one-half cord short. This measurement was still later confirmed by Mr. Lawrence, the sealer of weights and measures for Houston.

A cord of wood is “a measurement of wood containing 128 cubic feet.” 9 Oyc. 977. It is otherwise expressed as a pile of wood 8 feet long, 4 feet high, and 4 feet wide, which would make, of course, 128 cubic feet.

The uncontradicted proof shows that the appellant had wagon boxes for measuring a cord of wood the dimensions of which made 164 cubic feet. It was demonstrated, as shown by the testimony, that a cord of wood of the dimensions stated, that is, 8 feet long, 4 feet high, and 4 feet wide, when sawed up into shorter lengths and thrown loosely into the boxes used by appellant, contained fully a cord of wood thus sawed up and thrown in. In other words, the uncontradicted testimony showed that the wagon boxes of appellant which he used on all occasions and on this occasion contained a full cord of wood thrown in loosely as this was. The law does not require that in order to ascertain that a. quantity of wood is a cord it shall be piled 8 feet long, 4 feet high, and 4 feet wide, but any other measurement or pile that contains a full cord would be all that was necessary, and would be sufficient. So that, as we understand it, the uncontradicted testimony shows that appellant did not use a false measurement in selling this wood, and the evidence is wholly insufficient to sustain the ^conviction. It is, of course, unnecessary to discuss whether or not in this particular instance appellant might have been guilty of some other offense than that charged. No other question need be discussed.

The judgment is reversed and the cause remanded.


author: DAVIDSON, P. J.

text:
    HAYNES v. STATE.
    (No. 5075.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    1. Homicide <©=294(½) — Instructions — Mentad Status.
    In prosecution for murder, defendant’s intoxication, together with fact that he received two blows on the head which knocked him down, should have been submitted to' jury on question of mental status and temporary insanity.
    2. Homicide <®=28 — Negligent Homicide.
    In prosecution for negligent homicide, men,tal condition produced by intoxicants could not justify an illegal act in and of itself, but it might do so combined with two blows on the head, both of which knocked defendant down.
    3. Criminal Law <©=3763, 764(22) — Instructions — Negligent Homicide — Weight of Evidence.
    In negligent homicide case, where it appeared that defendant was intoxicated and had received two blows on the head, an instruction that danger of injury to another by use of pistol could have been known to defendant, if he had used ordinary prudence, held on the weight of the evidence.
    4. Criminal Law <©=3857 (3) — Misconduct oe Jury.
    That the jury discussed the failure of an accused to testify in his own behalf is ground for reversal of conviction.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Jerry Haynes was convicted of murder, and lie appeals.
    Reversed and remanded.
    Simpson, Lasseter & Gentry, of Tyler, and G. L. Florence, of Gilmer, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder and allotted ten years’ confinement in the penitentiary.

It is unnecessary, to state with any detail the testimony. The state’s contention was that appellant was guilty of murder in (killing Elias Williams. There seems to have been no previous trouble between them. Appellant was at a social gathering when the shooting occurred, and there is testimony in the record showing that he was very drunk, and was misbehaving in his maudlin condition, and one or two parties undertook to carry Mm away from the place. He became a little obstreperous, and was knocked down two or three times by the parties in charge of him. Finally they left him and went back to the crowd, and appellant came staggering back, firing his pistol at random. One of the shots took effect in Elias Williams, resulting in his death. The intoxication was from the voluntary use of whisky. His mental condition from this standpoint became an issue in the case, and was submitted by the court. The blows upon the head which knocked him down also entered into the question of Ms mental status. Upon another trial the jury should be appropriately instructed with reference to Ms mental condition resulting from the combination of the blows and intoxication. If the blows rendered him temporarily insane, or put him in a condition where he did not know right from wrong, or in fact did not know what he was doing, the jury then should be appropriately instructed.

The court submitted the issue of negligent homicide in the second degree. TMs charge is criticized and exception timely and properly reserved. The court’s charge in full upon this-subject is as follows:

“Now, bearing in mind the foregoing instructions with reference to negligent homicide of the second degree, if you shall believe beyond a reasonable doubt that on or about December 25, 1917, in the county and state aforesaid, the defendant was in the performance of an unlawful act, to wit, rudely displaying and discharging a pistol near the private house of Jim Williams, and did then and there in the performance of said unlawful act, if any, and without any apparent intent to kill, by negligence or carelessness cause the death of Elias Williams by then and there shooting said Elias Williams with a pistol, there being then and there an apparent danger of causing the death of said Elias Williams by so rudely displaying and discharging said weapon, if he did, .which danger would have been known to the defendant if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances, then you will find the defendant guilty of negligent homicide of the second degree and assess the proper punishment therefor.”

We are of opinion this charge is upon the weight of the evidence. It occurs to us that the court required the defendant, under the statements in the charge, to show that he used such a degree of care and caution as a man of ordinary prudence would use under like circumstances. TMs is a matter for the jury to determine from the facts, that is, whether appellant used such a degree of care and caution as an ordinary man would use under like circumstances. Appellant was violating the law in two respects if responsible for his acts at the time, to wit: Rudely displaying a pistol where people were congregated on a social occasion; and, second, in shooting his pistol at said time and place. Appellant claimed irresponsibility and want of knowledge in fact that he fired the pistol, resulting from a combination of blows on the head, which knocked Mm down, and his mental condition by being very drunk. These were matters that entered into the consideration of the case necessarily upon the question of carelessness or negligence. The use of intoxicants, or a mental condition produced by their voluntary use, would not justify an illegal act in and of itself, but it might do so combined with two blows on the head, both of which knocked Mm down. The witnesses., testified in fact that they thought when knocked down the second time that appellant would not be able to get up and about. But in any event the court should not have instructed the jury that this would render Mm guilty of negligent homicide to the extent of placing the burden on him to show to the contrary. It was a matter of deduction by the jury from the facts whether under such circumstances he did use or would be responsible for the use of such care and caution as an ordinary individual or party under like circumstances would use. From the viewpoint of tMs phase of the testimony this killing would have been more in the nature of an accident, and the question of an intentional killing would be out of the case. Under this view of the testimony the jury might readily have believed that he did not intend to kill; at least the testimony would have justified them in reaching that conclusion. They might have believed in this connection that there was apparent danger of killing. The court, however, did not charge upon the question of accident, but limited the consideration of the jury to the question of negligent homicide, and instructed them that this would be sufficient if he did not exercise that caution and care which ordinarily should be exercised under such circumstances. For this reason this judgment we think ought to be reversed.

There is another question which we think requires a reversal. The jury discussed the failure of the appellant to testify in his own behalf. This seems to be uncontro-verted, and we think for this reason the judgment should be reversed.

The judgment is reversed, and the cause remanded.
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text:
    LUMPKIN v. STATE.
    (No. 4923.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    Criminal Law <®^938(1) — New Trial — Newly Discovered Evidence.
    Where the evidence upon which defendant was convicted tended strongly to prove an alibi, and raise doubt as to his identity with the criminal, a' motion for a new trial on the ground of newly discovered evidence, supporting proof of mistaken identity, should have been • granted.
    Appeal from District Court, Atascosa County; C. C. Thomas, Judge.
    J. S. Lumpkin was convicted of passing a forged instrument, and appeals.
    Reversed and remanded.

      W. B. Green, of Gonzales, and -R. R. Smith, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., 'for the State.
   DAVIDSON, P. J.

Appellant was convicted of passing a forged instrument and allotted two years in the penitentiary.

The facts show that the party whose name was signed to the supposed forged*instrument was in fact signed by him, and the forgery consisted of the fact that the check was filled in above his name with the amount of $3,200. There is no question of the fact that the purported maker signed the check and left it in blank, and turned it over to defendant for tire purpose of being used by appellant in buying cotton for the alleged maker. This occurred in Gillespie county. Subsequently, in Atascosa county, the instrument alleged to have been forged was passed by appellant as contended by the state. Over the name of the alleged maker was inserted the amount of $3,200. The bank upon whom it was passed claimed to have placed this amount to appellant’s credit, and that appellant drew out $1,400 or $1,500 of the money. There was an issue seriously fought in the court below on the identity of appellant as the man who passed the check. Appellant denied this, and there was quite an array of testimony showing an alibi, and his whereabouts during, the time claimed by the state that he was in Atascosa county. The testimony proving the alibi is very strong, and gives facts and dates, registers at hotels, and matters of that sort, that raise a very serious issue as to whether appellant was in Atascosa county at tire time the check was passed, as well as to his identity.

In the motion for new trial appellant produced the affidavit of a party named Mills, whose testimony was shown to have been unknown to appellant or his attorneys at the time of the trial, and was discovered by them subsequently, going strongly to show that the man who was in Atascosa' county and supposed to have passed the check was not defendant. It is unnecessary to go into the details and circumstances and reasons why this witness says appellant was not the man. We are of opinion that under this showing appellant was entitled to a new trial. The evidence is strongly contested that he was the party who passed the check. Under such showing, the jury might have reached the conclusion 'that he was not in Atascosa county, and was not the party who passed the check upon the bank: There was evidence strongly put that he was in San Antonio during the three days the state claimed he was in Atascosa county. This came from different parties, showing his presence in the city of San, Antonio, where ho registered at different hotels during the three days. The testimony from some of the witnesses is not clear that appellant was the party who passed the check. Under these circumstances, we are of opinion that the motion for new trial should have been granted, on account of the newly discovered testimony.

Taking the case as a whole, and the condition ’ of the state’s as well as the defendant’s view of it on the question of identity, the strong proof of alibi, the new trial should have been granted on account of the newly discovered testimony of Mills, which strongly tended to support appellant’s theory of the case that he was not the party in Atascosa county, and who the state claimed passed the check or forged instrument. The other questions may arise in a different form upon another trial, and, may be more fully elucidated, and therefore are not discussed.

The judgment will be reversed, and the cause remanded.
      ®soEor other oases see same topic and KEY-NUMBER in.all-Key-Numbered Digests and Indexes


text:
    HOLLIS v. STATE.
    (No. 5086.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    1. Criminal Law <⅞^595 (2) — Continuance— Absent Witness — Immaterial Evidence.
    Refusal of continuance in prosecution for larceny for absence of witness is not error; his promised testimony being immaterial.
    2. Criminal Law <¾=>950'(5) — New Trial — Absent Witness — Motion—Affidavit.
    To motion for new trial for refusal of continuance for absence of witness should be attached her affidavit that she would have testified as alleged.
    3. Criminal Law <⅜^>409 — Evidence—Statements of Accused — Time oe Making.
    Statements of defendant to arresting officer are properly admitted over defendant’s mere objection that they were made after his arrest; the officer testifying they .were made before he had stated he intended to arrest.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. I-Iosey, Judge.
    Tom Hollis was convicted of theft, and appeals.
    Affirmed.
    Homer L. Baughman and Durward McDonald, both of Et. Worth, -for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the theft of property of the value of more than $50, and assessed the lowest punishment.

The testimony was clearly sufficient to establish his guilt. We see no necessity for reciting the facts. There are but two questions raised. One is. he complains that the court erroneously refused his application for a continuance. He made it on account of the absence of two witnesses. One of these later reached the court and was introduced as a witness for, and testified in behalf of, the state, materially different from what appellant alleged he would. Appellant was indicted February 5th, and soon thereafter arrested. He had no process issued for the absent witness until February 15th, which, was for the witness who was alleged to reside in Austin, Travis county. The process was returned February 21st, the return of the officer showing that the witness could not be found in Travis county after diligent search and inquiry. No other process was issued. He was tried the next day. The testimony of the absent witness, even if there was such a witness, and she would have testified as he alleged, was not sufficiently material to require a reversal. Besides, to his motion for new trial which was not acted upon until a week after his conviction, he attached no affidavit by her that she would have testified any such things he alleged she would.

In his other bill he complains of the court admitting in evidence his statement to the officer who arrested him, his mere objection being that he made the statement after he had been arrested. The officer swore that he .had the conversation with him, in which he made the statement objected to, before he arrested him, and that at the time he was not under arrest, and he had not even stated to him that he intended to arrest him. This bill shows no error. No other question is raised for discussion.

The judgment is affirmed.
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text:
    MEADOR v. STATE.
    (No. 5094.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    Criminal Law <§=>1092 (6) — Appeal — Bills on? Exception — Statement of Facts — Time of Filing.
    Bills of exceptions and statement of facts filed after adjournment, the record containing no order allowing it, cannot be considered.
    Appeal from Jack County Court; Thomas F. Horton, Judge.
    Lester Meador was convicted of carrying a pistol, and appeals.
    Affirmed.
    Stark & Stark, of Jacksboro, for appellant. E. B. Hendricks, Asst. Att£. Gen., for the State.
   DAVIDSON, P. J.

Appellant was fined $100 by the verdict of the jury for unlawfully carrying a pistol.

An inspection of the record will show that the suggestion of the Assistant Attorney General is sustained by the record that the statement of facts and bills of exception were not filed within the time prescribed by law, and therefore cannot be considered. The court adjourned on the 30th of March. Appellant’s bills of exception and statement of facts were not filed until the 29th of April, about 30 days after adjournment. In this attitude of the record neither the statement of facts nor the bills of exception can be considered. There is no order in the record allowing 20 days after adjournment of court in which to file these documents. With the statement of facts and bills of exception in this condition it leaves no question for revision.

The judgment must therefore be affirmed, which is accordingly so ordered.


text:
    LACEY v. STATE.
    (No. 5091.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    Homicide <§=>188(1) — Self-Defense — Reputation of Deceased.
    On the issue of self-defense, defendant should have been permitted to show that deceased had the reputation of being a quarrelsome, contentious, and overbearing man, and that defendant knew of such reputation.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Neil Lacey was convicted of murder, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and allotted 14 years in the penitentiary.

There were several bills of exception reserved during the trial. These bills recite that one of the issues joined during the trial was who began the difficulty, or was responsible for it, that resulted in the homicide. There is also evidence suggesting the issues of manslaughter and self-defense. The laws of manslaughter and self-defense were submitted to the jury by the court. The bill further states that after these issues had been raised, and the defendant himself being upon the stand as a witness in his own behalf, and after having testified that deceased had attacked him with a gun, threatening to kill him, and coming towards him with a drawn gun, and that he (defendant) shot deceased to prevent deceased from killing him, and after testifying that he had known deceased for about 2 years at that time, and that for about 2 years he and deceased had lived in the same community, and for about eight months had lived in the same house, defendant’s counsel then proposed to prove by defendant that he knew the general reputation of the deceased in the community in which he lived for being a quarrelsome, contentious, and overbearing man. The court sustained the state’s objection, and this testimony was not permitted to go to the jury. This witness would have testified, if permitted to have done so, that he knew the reputation of deceased at the time of the killing, and that such reputation was bad in the respects mentioned. We are of opinion this evidence should have gone to the jury. The remaining bills recite the same issues as the previous bills, and recite that defendant proposed to show the general reputation of deceased in the respects mentioned by witnesses named in said bills. This was excluded. This was error for which the judgment must be reversed. The record shows that there had been trouble between the parties prior to the homicide, and there is testimony from which the defendant could infer, as shown by the record, that his life was in danger from the acts and conduct of deceased prior to the homicide, and that the issue of manslaughter was suggested by the evidence, and charged by the court, and self-defense was also in the case. Evidence of the reputation of deceased under such circumstances is admissible, and the court erred in not permitting this evidence to go to jury.

The judgment is reversed, and the cause remanded.
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