author: HUFF, C. J. HENDRICKS, J. HUFF, C. J. HENDRICKS, J.

text:
    SELLERS v. PUCKETT et al.
    (No. 854.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1915.
    Dissenting Opinion, Nov. 22, 1915.
    Rehearing Denied Dec. 11, 1915.)
    1. Garnishment &wkey;>195 — Replevy Bond — Effect.
    Where a judgment defendant, after garnishment, executes a replevy bond to release the lien of the garnishment, after acceptance of the bond by the proper officer the judgment plaintiff must thereafter look to the bond for payment of his indebtedness, and the judgment debt- or becomes entitled to collect the garnished debt.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 885; Dec. Dig. <&wkey;>195.]
    2. Estoppel <&wkey;68 — Estoppel in Pais — -Garnishment Bond.
    A judgment defendant, member of a partnership, and his sureties on his bond to release a garnished debt from the lien of the garnishment will not be heard, after executing the bond and obtaining the release of the lien, to claim that the garnished indebtedness was not owing the judgment defendant, but to the firm of which he was a member, the estoppel resting on the fact that the judgment defendant receives the money due him, and also on the rule that one' who with knowledge of the fact takes a particular position in judicial proceedings is estopped to assume an inconsistent position to the adverse party’s prejudice.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. <5&wkey;68.)
    3. Garnishment <&wkey;180 — Judgment Upon Admission of Indebtedness —Admission ■BY Partner — Statute.
    Under Rev. St. 1911, art. 293, providing that when it appears from the garnishee’s answer that he is indebted to the defendant, the court shall render judgment for the plaintiff against the garnishee for the amount admitted, where a firm was indebted to a judgment defendant, and a member of the firm, answering in garnishment, admitted the debt of the firm, the judgment plaintiff was entitled to judgment against him, since a partner cannot complain when judgment is rendered against him alone on a firm debt; the obligation being joint and several.
    [Ed. Note. — For other eases, see Garnishment, Cent. Dig. §§ 351-356; Dec. Dig. &wkey;>180.]
    4. Parties <&wkey;84 — Nonjoinder — Action against Partner — Waiver.
    Where a member of a firm is sued alone on its obligation, by his failure to take advantage of the omission to join his partner or the firm by proper plea in abatement he waives his right or privilege to have such joinder.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 134-142, 171; Dec. Dig. &wkey;84.]
    On Motion for Rehearing.
    5. Courts &wkey;>247 — Certification by Court, of Civil Appeals to Supreme Court.
    Where a Court of Civil Appeals has final jurisdiction of a cause, it is not mandatory upon it to certify such cause to the Supreme Court because of the dissent of one of its members.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.]
    Hendricks, J., dissenting.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Action by O. I. Sellers against J. W. Puckett and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    Lloyd Fletcher, of Amarillo, for appellant.
    R. E. Underwood, P. R. Underwood, and Ben H. Stone, all of Amarillo, for appellees.
   HUFF, C. J.

This suit originated in the justice court, and from a judgment obtained in that court in favor of appellant, it was appealed to the county court of Potter county by the appellees, where judgment was rendered in favor of appellees, from which appellant appeals to this court.

O. I. Sellers obtained judgment against F. S. Franklin for the sum of $156.53 May 4, 1914, with 10 per cent, interest per annum. The judgment was rendered in the justice court, precinct No. 1. On this judgment Sellers sued out writs of garnishment December 9, 1914, against J. W. Puckett, Grover Hill, and the Amarillo Bank & Trust Company. Puckett answered that he did not owe Franklin anything, bnt that the partnership of Cook & Puckett, of which he was a member, was indebted to the partnership of Franklin & Hill, in the sum of $120.75. The Amarillo Bank & Trust Company admitted it was indebted to Franklin in the sum of $30.10. Grover Hill answered that he was not indebted to Franklin in any sum. On the 14th day of December, 1914, F. S. Franklin executed a replevin bond, with C. L. Kilgore and F. M. Hill as sureties thereon. The bond recites the issuance of the writs of garnishment on the judgment, in the case of Sellers against Franklin, and the service of the writs on the above-named garnishees, stating the indebtedness to be of the sum of $165.80, principal and interest due on the judgment, and that the garnishments were then pending, and that Franklin was desirous of replevying any effects, debts, shares, or claims seized or garnished under and by virtue of each and all said writs.

“Now, therefore, in orijer to release from the lien of garnishment created by the issuance and service of each of said writs, any and all debts, claims, shares or effects, if any, owing by or in the possession of J. W. Puckett, Grover Hill and the Amarillo Bank & Trust Company, and belonging to the said E. S'. Eranklin at the date of service of the said writ of garnishment, and which may be owing by them or shall come into their possession up to the time of filing of their answer as garnishees in said cause, or which become due before the filing of their answer, we, the undersigned, Felix S. Franklin, as principal, and -- and -- as sureties, acknowledge ourselves bound to pay to the said O. I. Sellers the sum of three hundred and thirty and no/100 ($330.00) dollars, conditioned to the payment of any judgment that may be rendered against the said J. W. Puckett, Grover Hill, or the Amarillo Bank & Trust Company, as garni■shees.” Signed by Felix S. Eranklin, C. L. Kil-gore, and F. M. Hill.

On the 18th day of January, 1915, in the justice court, Franklin filed what he designat>ed as “defendant’s traverse,” in which he alleges that neither of the garnishees was indebted to him, that Cook and Puckett listed with Franklin & Hill certain cattle for sale, and that the partnership sold the same, and thereby earned commission in the sum of $120.75, which amount was due by Cook & Puckett to the partnership of Franklin ■ & Hill; that the partnership, in effecting the sale of the cattle, incurred expenses to the amount of $30 to one Caldwell, for which Franklin gave his cheek to Caldwell; that at that time he had no funds in the Amarillo Bank & Trust Company upon which the check was drawn; that Grover Hill, his partner, out of his own fund, deposited in said bank the sum for which the check was drawn, and that the fund so deposited was not the private fund of Franklin, by reason of which the fund was a special deposit assigned to Caldwell by virtue of the cheek theretofore given, and the purpose of the deposit was known to the bank; that the bank was incorrect in its answer in admitting indebtedness to-Franklin by reason of the facts above stated. Grover Hill also filed a plea of intervention, setting up substantially the same facts as alleged by Franklin as to the $30 deposit. The (trial court finds substantially that Grover Hill was not indebted to, or had in hand any effects belonging to, Franklin; that Cook & Puckett were indebted to Franklin & Hill in the sum of $120.75; that the $30 in the bank was deposited, as alleged, by Franklin; and that the bank had notice thereof, and the check was issued to Caldwell as alleged, and was returned unpaid, but after the replevy bond was executed the same was delivered to Grover 1-Iill; that Puckett refused to turn over the funds in his hands to Franklin after the replevy bond was executed, but still retained it. Puckett was a member of the partnership of Cook & Puckett.

After the execution of the replevy bond the garnishee is only a nominal party, and only a nominal judgment could be rendered against the garnishee. The evident purpose of the replevy bond was to release the lien fixed by the garnishment, and the bond in this case so recites. The debts having been released from the lien so fixed upon them authorized the garnishees therein to pay the sum to the defendant in the judgment, and the principal in the bond, and thereafter the judgment plaintiff must look to the bond for the payment of the indebtedness. Tinsley v. Ardrey, 26 Tex. Civ. App. 561, 64 S. W. 805; Modern Dairy v. Blanke, etc., 116 S. W. 154. The fact that Puckett did not actually pay the money over to Franklin, we think, should make no material difference. When the bond was accepted by the proper officer, the principal on the bond was entitled to the money due on the debt. The lien by garnishment was released, and the collection of the debt by Franklin could be enforced. . There was no legal excuse, therefore, on the part of Puckett for not paying it. 116 S. W. 154, supra.

Franklin and his bondsmen will not be heard, after executing the bond and obtaining the release of the lien, to say the indebtedness garnished was not owing Franklin, the judgment debtor. Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30; Davis v. McFall, 168 S. W. 453; Amarillo National Bank v. Sanborn, 169 S. W. 1075. Estoppel in cases of this character does not rest alone upon the fact that the party executing the bond received the money due him, but, also— “a party who has, with knowledge of the facts, assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith, to the prejudice of the ad* verse party.” 169 S. W. 1075, supra.

We think when it was shown that Cook & Puckett were indebted and that J. W. Puckett was a member of that firm, that under article 293, R. C. S., appellant was entitled to a judgment. The answer of Puckett certainly makes it appear that Puckett was indebted to the defendant debtor in the amount stated. If Puckett was a partner, he was liable for the entire amount. When he disclosed the nature of the indebtedness, in so far as his answer and the pleadings in this case are concerned, it would permit a judgment against him for the debt due by the partnership and against him who was the partner served. The answer of Puckett disclosed his liability. A partner cannot complain because judgment is rendered against him alone on a firm debt, since the obligation is joint and several. Hoxie v. Farmer, etc., 20 Tex. Civ. App. 462, 49 S. W. 637; Davis v. Willis, 47 Tex. 154; Wiggins v. Blackshear, 86 Tex. 665, 26 S. W. 939. If in fact the partnership was not a party and the partner who is sued is bound for the entire indebtedness, if he desires, he may waive the right to have his partner or the partnership joined. As it is the interest of the one so sued to have his partner joined if he failed to take advantage of the omission in due time by a proper plea in abatement, then he should be considered as having waived his privilege. Davis v. Willis, 47 Tex. 162; Seimsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30, supra. If Franklin is not estopped in this case as to such plea, he should have presented the same at the trial, and at the proper time. It is a matter, however, in which he could have no interest, whether the judgment bound Cook or not; that was a matter in which Puclcett alone was interested, and he did not seek to have his partner made a party, or an abatement on that account.

We think the trial court was in error in rendering judgment against appellant. The judgment will be reversed and here rendered in favor of the appellant on the replevy bond against Felix S. Franklin, as principal thereon, and his sureties, C. L. Kilgore and F. M. Hill, for the sum of $150.75, being the amount due and owing by the bank, $30, and $120.75 due and owing as shown by the answer of Franklin, by Puckett, and that the judgment also be rendered on the bond against the ob-ligors thereon for the costs of this appeal and the costs in the county court and justice' court, including the attorneys’ fees found by the trial court and taxed against the appellant.

The case will be reversed and rendered.

HENDRICKS, J.

(dissenting). When the majority opinion was filed I was inclined to a disagreement on account of the fact that the fund impounded was a partnership fund, and that estoppel should not apply. Since then, in studying the recitations in the re-plevy bond, I rather doubt that the assertion by Franklin and the sureties in said bond are of unqualified ownership of the fund garnished, and that it may be no more than a statement that he is desirous of replevying any debts garnished under the writ for the purpose of releasing from the lien of the writ any debts, “if any,” owing by the garnishees and belonging to Franklin at the date of the garnishment. If so, the judicial inconsistency of one claiming a fund and then asserting ownership in another might not apply. However, as I construe the opinion of the court, it is really based upon the ground of estoppel. I am inclined to think the same should not apply to this record for the following reasons: The statute in terms permits the defendant debtor, after he has replevied the garnishment fund, to present any defense the garnishee could have presented; and Justice Moore suggested, in McRee v. Brown, 45 Tex. 508:

“If it was a partnership debt, it is held in many courts that he could not be forced to pay it on a separate writ of garnishment; and if he has done so, without a proper effort to .protect himself, he is not entitled to relief.”

I assume as the law that ordinarily a partnership claim cannot be impounded to pay a partner’s individual indebtedness. Raley v. Smith, 73 S. W. 54; Gilmore on Partnership, § 141, p. 420, and numerous cases cited; Bates on Partnership, vol. 2, § 1103. It is not proper to withdraw the funds of a partnership and appropriate same to pay the private debts of an individual partner. It would give the individual creditor of an individual partner, by an action at law, a greater right than the partner debtor himself would have in withdrawing the funds to pay the individual debt, unless probably it is one of salary, agreed upon as compensation in the partnership agreement. ' It is true that there is no creditor’s lien upon the partnership funds except as worked out by subrogation to the individual partner’s lien upon the assets to pay the partnership debts; but I take it that, in a general sense, individual partners owe a duty to creditors and in a particular sense to the other partners composing the firm; in fact each partner owes to the other the strictest fidelity, as to partnership assets, based upon the doctrine of agency. A partner cannot bind a firm by giving a note to pay a separate debt; and Bates says (volume 1, § 410), it is a fraud on the firm to úse a partnership asset to pay his separate creditor, and when a creditor who impounds a partnership debt by holding it would obtain a greater right from his debtor than the debtor partner could himself give by contract, I take it that ordinarily it would be the duty of the partner to show the credit garnished belonged to the partnership. I do not really understand that this statute, giving the right of defendants to replevy, would prevent a partner from replevying because the debt garnished was a partnership asset; it is broadly given to all defendants, and after the replevy is made the garnishee is released from the litigation, except nominally. The defendant debtor is then in the garnishee’s shoes, and it is his right — -I take it in this case it is his duty— to present the defense which Justice Moore suggests is the duty of the garnishee to present. If the fund is a partnership fund, attempted to be appropriated to pay an individual debt, it seems to me it is certainly some one’s duty, and I know of no other person more appropriate than the real defendant after the garnishee is released. Though not shown in this record that the expressions used in this bond were mere inconsiderate recitations, still to say that a partner, by using such recitations, though construed as claim of individual ownership, would prevent him from performing his real duty to the partnership, and exhibiting the real truth of the character of the asset to me is rather a harsh doctrine, and when, as in this case, it is indubitably shown without protest that the credit is a partnership fund, I do not think that estoppel should apply when the partner is performing his duty to others in setting up the real facts. If it could be said that it should be shown that the individual debtor, as the partner, did not have a balance owing to him at that particular time, I think the true rule is that:

“The garnishment will not be sustained unless the plaintiff shows that after payment of the partnership debt there will be a balance.” Bates on Part. vol. II, p. 1087.

Mutual balances between partners are a fluctuating quantity and. a judgment on any one item against an individual partner in a going concern, it seems, would not settle much unless you put the partnership out of business, with an accounting in the garnishment suit by ascertaining what that balance would be.

It happens in this case that the other partner is also a garnishee, and only answered, as indicated in the majority opinion, as to the $30 credit in the bank deposited to Franklin. The opinion is not placed upon the ground that he is bound by the estoppel, being a party garnishee, but the assertion may be suggested by the condition. Usually, one a garnishee has nothing to do with, and is not a party to, the contentions that may arise as to other garnishees and other impounded credits. I do not see how it could be said that the other garnishee in this case is bound by the recitals of the bond in so far as any litigation to be initiated by him as an actor is concerned. When the repdevy bond is executed and filed the garnishee is released from the litigation. As I view it, if the garnishee had the right to set up this defense, and the real defendant, after the filing of the replevy bond, had the same right, and if in this character of case it was his duty to protect the partnership funds, and though the whole fund may not have belonged to him (though in law each partner has the right of possession), the recitations in the replevy bond should not wholly control the right and duty, as applied to the conditions of this record. It is not appropriate to argue behind the decided cases, but I do not think any case has gone this far.

The ?30 advanced by I-Iill to Ms partner, Franklin, to pay a partnership debt was probably an advancement to the partnership business, and I think this whole case upon the judgment of the trial court should have been affirmed.

On Motion for Rehearing.

HUFF, C. J.

In the case of Davis v. Mc-Fall, 108 S. W. 453, cited by us in the original opinion, the replevy bond therein expressly stated the funds did not belong to McFall, but belonged to another and the court there held estoppel applied. Under the statute the owner or the defendant in the original suit, may replevy the fund. He does so because he is entitled to the same. He can thereby obtain the possession and use thereof. It is insisted here that the defendant who replevies can make any defense the garnishee could make. If the garnishee had answered that he was indebted to the defendant Franklin, it would not be contended, we apprehend, he could, contrary to Ms answer, show he was not so indebted. Franklin, in tMs case, stepped into the shoes of the garnishees, and by his replevy bond states the garnishees are indebted to him, and in the face of such bond he seeks to show that the garnishees are not so indebted. This inconsistent position courts condemn and will not permit, but hold that the party so replevy-ing is estopped from asserting that he is not the owner by giving Ms bond in order to obtain a release of the levy.

Appellees further, in their motion for new trial, suggest that this court was guilty of an inconsistency in the opinion. In our statement of the case we stated Puckett answered that his firm was indebted to Franklin and Hill, and in the latter part of the opinion we say that he, Puckett, shows by his answer that he was indebted to Franklin. Puckett tells on what debt he is obligated. Franklin, by Ms replevy bond, says this debt is Ms. It may have been, when originally contracted, Franklin and Hill’s debt; but Franklin got the right to collect it as his individual debt by virtue of his re-' plevy bond. Therefore the answer of Puckett simply makes his firm liable to Franklin, and he would, as a member of that firm, be responsible to Franklin for the amount, and collection from him personally can be enforced.

The judgment disposing of the costs, caused to be entered by this court herein, is regarded by us as just and fair. We do not feel disposed to certify this question. In the three cases cited by us writs of error were denied in each of the three cases, and if there is any question settled in this state we regard the one presented in this case as being finally settled by the Supreme Court. Having final jurisdiction in this case, we do not regard it as mandatory upon us to certify because of the dissent 'of one of the members of this court. Railway Co. v. Dalton, 177 S. W. 556, and authorities cited.

The motion for new trial and to certify overruled.

HENDRICKS, J.

(dissenting). I overlooked the McFall Case, i. e., the terms of the bond in that case, though previously familiar with same, when rendering my dissent. The gravamen of this case, however, is one of partnership, as argued in my dissent, and I am inclined to think that a distinction can, in justice, be made, and believe tMs cause should have been certified.
      <@=s>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    WADE v. WADE.
    (No. 5510.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 20, 1915.
    Rehearing Denied Nov. 24, 1915.)
    1. DivoRCb &wkey;>161 — Judgment — 'Vacation-Motion — Showing os' Meritorious Defense.
    Before a judgment against defendant in a divorce action on two grounds, entered after his appearance on the appearance day, but ixf the absence of his counsel, would be set aside, he must allege and show a meritorious defense to the cause of action, setting up the facts upon which each defense is based; and the setting up of the facts upon which only one of the defenses is based is insufficient, and defendant must show that a different result would be reached upon another trial.
    [Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 522-526; Dec. Dig. i&wkey;>16S.]
    2. Divorce <&wkey;249 — Community Property-Decree to Wipe for Life — Statute.
    Under Rev. St. 1911, art. 4634, permitting the court to decree such division of the community estate between the spouses as shall seem just, having due regard to the rights of each and of their children, the court, in a wife’s action for divorce, on the ground of abandonment of herself and daughter, had the right to decree the use and benefit of the homestead to her for life as the head of the family; such decree not divesting the defendant of his title thereto.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 701-705, 707, 709, 712; Dec. Dig. &wkey;>249.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action for divorce by Mrs. Cora Wade against W. T. Wade. Judgment for plaintiff, motion for new trial denied, and defendant appeals.
    Affirmed.
    R. M. Vaughan and Morrow & Morrow, all of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.
   RICE, J.

This suit was brought by the appellee against appellant for divorce and for a division of their community property, upon the ground of abandonment and adultery ; and, though filed in time for the July term, 1914, of the district court, it went over for lack of service in time, until the succeeding September-October term of said court, to perfect same, when it was tried and judgment rendered for appellee, granting her divorce and awarding to her the exclusive use and benefit of the community homestead during her natural life, or as long as she might see fit to use same, from which judgment appellant has prosecuted this appeal, seeking a reversal alone on the ground that the court erred in trying the case in the absence of himself and his counsel. A motion for new trial was filed in behalf of appellant, alleging that his counsel, who had been employed at the July term, was present in court on September 8th, appearance day, and remained until after the call of the docket, when 'he left the courtroom under the belief that the case would not be called until the week beginning the 5th of October, his attention having been called by the clerk to the fact that this case, amongst others, was set for that time, for which reason he did not file an answer and was not present when the case was tried, expecting to do so before it was called on the day set; that one of his counsel was ill during the entire term of court, and the other was a member of the state Legislature, which was in session during most of said term; that he and his counsel appeared on the 5th of October, for the purpose of trying said case, when it was ascertained that the same had been previously tried and disposed of in their absence, as above set forth. He further alleged generally that he had a good and meritorious defense to plaintiffs cause of action, and would have urged the same but for the reasons stated, failing, however, to allege the facts and circumstances constituting such defense, except so far as related to the charge of abandonment, no defense whatever being set up as to the charge of adultery. The judgment for divorce was predicated upon both grounds. Appellee showed that it was the uniform custom on the part of the court and attorneys practicing at said bar to call up and dispose of appearance cases, ineluding divorce cases, in which no answer had been filed, on appearance day of the term, and that this case had been called and disposed of in open court by a regular trial in accordance with said custom, without knowledge of the fact that said counsel was representing appellant, and without any purpose to take advantage of appellant or his counsel. Appellant’s motion for new trial being overruled, he appeals and seeks a reversal on the ground that the court abused its discretion in failing and refusing to grant said motion.

Before a judgment rendered under such circumstances should be set aside, the defendant must allege and show that he had a meritorious defense to plaintiffs cause of action, setting up the facts upon which such defense is based. Merely alleging generally that he had a meritorious defense, and setting up the facts upon which only one of such defenses is based, is not sufficient; but the facts upon which he relies to establish each defense must be set forth, and it must appear therefrom that a different result would be reached upon another trial. Holliday v. Holliday, 72 Tex. 585, 10 S. W. 690; Kruegel v. Bolanz, 103 S. W. 435; Bartlett v. Jones & Co., 103 S. W. 705; El Paso & S. W. Ry. Co. v. Kelly, 83 S. W. 855; Keller v. Keller, 141 S. W. 581; Stringer v. Robertson, 140 S. W. 502.

Again, it is urged that the court erred in awarding appellee the use and benefit of the homestead during her natural life, appellant contending that he was thereby divested of his interest therein and title thereto. The judgment of the court found that appellant, a short while before abandoning his wife, had sold a livery stable belonging to the community and converted the proceeds thereof to his own use and benefit, without the consent of his wife, leaving her and her daughter, Eddie, without means of support and maintenance, and awarded her the use and benefit of the homestead, as the head of the family. Appellant admits that while under article 4634, R. S. 1911, the court has the right to decree such division of the community estate between the spouses as to it shall seem just and right, having due regard for the rights of each and their children, yet this statute forbids the divesting of either party of their title to real estate, which he contends was done in the instant case. The granting, however, to appellee, as done in this case, of the use of the homestead during her natural life is not, we think, equivalent to divesting appellant of his title thereto. See Tiemann v. Tiemann, 34 Tex. 523; Hong v. Long, 29 Tex. Civ. App. 536, 69 S. W. 428; Kirkwood v. Domnau, 80 Tex. 645, 16 S. W. 428, 26 Am. St. Rep. 770; Holland v. Zilliox, 38 Tex. Civ. App. 416, 86 S. W. 86. It has been expressly held by the above cases that the court, in divorce cases, has the right to decree the use and benefit of the homestead to the wife during her lifetime.

Believing that the court did not err in refusing to grant a new trial, its judgment is in all things affirmed.

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


author: HUFF, C. J.

text:
    WESTERN LUMBER CO. v. CHICAGO, R. I. & G. RY. CO.
    (No. 855.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.)
    1. Judgment <&wkey;126 — By Default — Pbo-pkiety — Statutes—‘ ‘Lx quid ated . ’ ’
    R. St. art. 1938, provides that, if the cause of action is liquidated and proved by an instrument in writing, judgment by default may be rendered, damages assessed by the court or under its direction, and final judgment rendered. Article 1939 provides that, if the cause of action is unliquidated or not proven by instrument in writing, the court must hear the evidence. A railroad sued a lumber company to recover freight charges. R. St. art. 6659, requires a receipt or bill of lading to.be issued by the carrier to the shipper in writing, and provides that railroad tariffs shall be fixed by the Railroad Commission, and notice thereof be given as to various classes of freight. Article 6656 makes such classification of freight conclusive between railroad and shipper. The petition of the railroad alleged a contract of shipment, and that the freight charges were legally charged and fixed. Held, that the road’s cause of action was for a certain or “liquidated” demand, which is.one agreed upon by the parties or fixed by operation of law; and that a default judgment could be entered thereon without the court’s taking proof.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 223, 224, 228-230; Dec. Dig. &wkey;>126.
    For other definitions, see Words and Phrases, First and Second Series, Liquidated Damages.]
    2. Judgment &wkey;>106 — By Default.
    Where a lumber company sued by a railroad for freight charges delayed answering for nearly a year, although its attorney was in court several times securing continuances, entry of default judgment for the road was proper on account of defendant’s negligence.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dec. Dig. &wkey; 106.]
    3. Judgment &wkey;>106 — By Default — Defense.
    Where defendant, objecting to the entry of default judgment against it, did not show, at the time of its request for the day to file answer, that it had a meritorious defense to plaintiff’s cause of action, entry of the default was proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dec. Dig. &wkey; 106.]
    4. JuiteiENT &wkey;>151 — By Default — Motion to Set Aside.
    Where defendant’s motion to set aside a default judgment failed to show that it was not negligent in failing to present and file an answer, and failed to show that it had a meritorious defense to plaintiff’s cause of action, or that the result would probably be different if the default judgment should be set aside, its denial was proper, the judgment not being void on the face of the record, since only where the record on its face shows that the judgment is void is it unnecessary to show diligence and a meritorious defense in support of motion to vacate.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 296-298, 727, 730; Dec. Dig. &wkey; 151.] .
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by the Chicago, Rock Island & Gulf Railway Company against the Western Lumber Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    S. E. Boyett, of McLean, for appellant. N. H. Lassiter, of Ft. Worth, and C. E. Gustavus, of Amarillo, for appellee.
   HUFF, C. J.

The appellee railway company brought suit against the appellant lumber company, alleging that it was a common carrier of freight, intra and inter state shipments, and that as such it entered into contracts of shipment with the appellant, for one carload of lime and cement, setting out therein the carload weight, at 21 cents per 100 pounds on the lime, or $2.10, which was the proper legal freight charges according to the tariff regulating the freight; that the full amount of the charges was $52.10, and that there was a payment of $16.80, leaving a balance on that car of $35.30, and the second shipment was two cars of melons, the minimum weight being 20,000 pounds, at the rate of 22 cents per hundred, making the proper legal freight charges $44 on each car; that these two cars were consigned to Black-man at Houston, who refused to accept them, and that there was demurrage of $12 on each car, and that there was $3.75. for advertising, which was necessary charges, aggregating on the two cars $119.14 freight and de-murrage; these melons, it is alleged, were condemned by the city health officers of Houston and required to be dumped as worthless; a shipment of a car of melons for the defendant from McLean to New Orleans, the minimum weight of which was 24,000 pounds, at the rate of 29 cents per hundredweight; that the actual weight of the car was 26,140 pounds, and that the proper legal charges therefor was $75.81; that these melons were not received by the consignee, and were sold after giving proper notice. There was de-murrage of $4 and $10 for advertising the sale of the melons, and commission to the auctioneer of $2.62, making an aggregate of $92.68, less the amount realized on the sale, $25, leaving a balance of $67.63. There was a shipment of a car of lumber from Waterman, Tex., to Yega, Tex., the car weighing 52,400 pounds, and the legal tariff freight charges was 22% cents per hundredweight, amounting to $117.90, and also a car from McLean to Bennonine, Tex. The total legal freight charges thereon was'the sum of $27, of which the defendant paid $19.20, leaving a balance due of $7.80. It is also alleged for the purpose of further guaranteeing the shipments of melons that the appellant gave the following;

“We hereby guarantee all freight charges on all shipments of melons made by us from your station.”

The total amount sued for, as set out in the petition, is $345.67. The judgment rendered is for the sum of $267.05, the judgment specifying the items for which it was rendered, showing that each item is for the freight charges sued for; the first item being $35.30, with interest thereon, $6.05; the second, $119, with interest, $16.11; the third, $67.63, with interest thereon, $9.47; the fourth $7.80, with interest thereon, 55 cents. These several freight charges are shown by the allegations in the petition to have been on the waybill accompanying the shipment, and under a contract of shipment and under the tariff regulating freight charges. The judgment is only for the freight charges, and not for the demurrage or other expenses set out in the petition.

The petition is shown to be drawn under the statutes. Acts 33d Leg. c. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829 1902, 1829a, 1829b). There was no answer filed and judgment was taken by default. After the judgment was taken appellant filed a motion for new trial, setting up the judgment should be set aside: (1) Because the same was rendered without proof; (2) because it was contrary to law; and (3) because appellant was in court by attorney asking to be allowed to file an answer before any judgment was given and because appellant, under the law, was entitled to the right to file its answer at any time before default judgment was announced. The judgment was rendered February 15, 1915. The suit was originally instituted March 4, 1914. The bill of exceptions in this case shows that the cause was called for trial, and that appellee railway in the court below asked for judgment by default. The attorney for appellant was present in court and objected to default judgment being taken. It is shown that the cause was continued at the May term of court in 1914, by agreement ; neither side at that time being ready. At the August term, A. D., 1914, the cause was again continued by agreement. The defendant’s manager at that time being absent on a vacation, its attorney, not then having information upon which to file an answer, agreed to file an answer in vacation and have the cause ready for trial at the November term, A D., 1914. At the November term the cause was again continued by agreement on account of defendant’s attorney being unable at that time to prepare an answer. Plaintiff’s attorney at that time insisted upon an answer being filed, and insisted that the cause should be ready for trial at the February term, 1915. When the case was called for trial, the plaintiff asked for a judgment by default, which was granted over the objection of the attorney then present, who stated that the manager of appellant was still sick or had been sick, and that the attorney would be unable to go to trial, but would have to continue the cause until the next term. The trial court, after hearing the various statements of counsel, overruled the application of appellant to be permitted the day to file the answer. The attorney had not filed the answer previous thereto, for the reason, as stated by him, that he had been unable to get the necessary information from appellant company until the day previous. He did not at that time state what his defense was or offer to do so, or represent that he had a good defense to the plaintiff’s cause of action. There was no evidence introduced in the trial court to prove up the items alleged by appellant.

Article 1902, Vernon’s Sayles’ Civil Statutes, it appears, will not authorize a final judgment upon default upon an unliqui-dated demand. This is the holding of the Court of Civil Appeals for the First District in Dancy v. Rosenberg, 174 S. W. 831. It is held therein that this article does not repeal article 1939, R. C. S. Article 1938 provides that “if the cause of action is liquidated and proved by an instrument in writing,” judgment by default' may be rendered and the damages assessed by the court, or under its direction, and judgment final rendered therefor. Under article 1939, if the cause is un-liquidated or not proven by an instrument in writing, the court must hear the evidence. Dancy v. Rosenberg, supra, appears to have been a suit to recover the reasonable value of services performed. The court in that case held the amount sought to be recovered was unliquidated and evidence should have been heard. The amount sued for in that case was not agreed upon and not an ascertained sum. This necessarily required proof to show the reasonable value of the services. The law of this state requires a receipt -or bill of lading to be issued by the carrier to the shipper in writing; and it further provides that railroad tariff charges be fixed by the Railroad Commission, and public notice thereof given on the various classes ■ of freight. Article 6659, R. C. S. This classification of freight as fixed is conclusive between the railroad and the shipper. Article 6656 ; Railroad Commission v. Weld, 95 Tex. 278, 66 S. W. 1096. If the freight charges on the several shipments can be classified as liquidated, then the pleadings will authorize the judgment. Under authorities above cited, demurrage and other reasonable expenses under the rule of liquidated demand would not be such as would support a judgment final on default without evidence, liawles' 3d Ed. Bouvier:

‘‘liquidated Account. One the amount of which is agreed upon by the parties, or fixed by operation of law” — citing Hargroves v. Cooke, 15 Ga. 321; Bull v. Bull, 43 Conn. 469.
“Liquidated Debt. A debt is such when it is certain what is due and how much is due”— citing Roberts v. Prior, 20 Ga. 561.
‘‘Liquidated Demand. A demand, the amount of which has been ascertained or settled by agreement of the parties or otherwise” — citing Mitchell v. Anddison, 20 Ga. 53.

The definition of liquidated demand as above given is recognized in Commercial Union Assurance Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. 97, with reference to insurance policies. It is said therein:

“In this case the amount due has been liquidated or fixed by operation' of law.”

The following authorities recognize the above definition of “liquidated”: Brooks Tire, etc. v. Shields, 48 Tex. Civ. App. 531, 108 S. W. 1006; Jones v. Hunt, 74 Tex. 657, 12 S. W. 832; Shaw v. Faires, 165 S. W. 502; Ajax v. Byars, 153 S. W. 922. The petition in this case alleges a contract of shipment and alleges that the freight charges therein were legal charges and fixed. The amount which the appellee was entitled to recover, as shown by his pleading, was not uncertain or unliquidated. The freight rate was fixed by law, and the exact amount could be precisely ascertained from the contract. Freight rates are fixed in this state by the commission, and such rates so fixed are held conclusive. The weight of each car is given, and the rate per hundred on the class of freight there shipped in each car. This was fixed by the contract of the parties, according to the allegations, and the amount of the freight could thereby be rendered certain. The suit for freight was therefore upon a liquidated demand, and we believe the court properly rendered judgment for such freight charges, which action may be sustained either on the ground that the amount due was fixed by agreement or by law.

This case, however, we believe should be affirmed on the ground that this record shows that the appellant was negligent in not preparing and filing its answer in this case before the case was called for trial, and, further, it did not show at the time of the request that it had. a meritorious defense to plaintiff’s cause of action; and the motion to set aside the judgment in this case also fails to show that it was not negligent in failing to present and file its answer, and, further, it fails to show that it had a meritorious defense to plaintiff’s cause of action, or, if the judgment should be set aside, that the result would probably be different. This motion was not sworn to or supported by affidavit. Holliday v. Holliday, 72 Tex. 581, 10 S. W. 690; Gillaspie v. City of Huntsville, 151 S. W. 1114; Foster v. Martin, 20 Tex. 119; Dowell v. Winters, 20 Tex. 793; Cook v. Phillips, 18 Tex. 31; Watson v. Newsham, 17 Tex. 437; Insurance Co. v. Lipscomb, 27 S. W. 307; Barlett v. Jones, 103 S. W. 705; Contreras v. Haynes, 61 Tex. 103; Montgomery v. Carlton, 56 Tex. 433.

The rule with reference to motions for new trial and to set aside judgments by default appears to be the same as a bill in equity to set aside the judgment with reference to showing negligence and a meritorious defense. Where the record on its face shows the judgment is void, it is not necessary to show diligence and a meritorious defense, but, if not void on its face, then it is necessary to plead such facts. In the case of August Kern, etc., v. Freeze, 96 Tex. 513, 74 S. W. 303, Judge Williams, speaking for the Supreme Court, discussed the distinction in the two classes of cases. In Sharp v. Schmidt, 62 Tex. 263, it is said:

“It has always been the rule that, when a judgment is sought to be reopened for any cause in order to permit a defense to be made. which the defendant was prevented from proving upon the trial in which the judgment was obtained, the nature of the defense must be shown to the court.”

We find no error in the action of the trial court, and the case will be affirmed.
      ij&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    TRAYHAN et al. v. STATE.
    (No. 5500.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1915.)
    1. Appeal and Ebeor <&wkey;78 — Decisions Ap-pealable — Nattjbe oe Decision.
    On petition of the county attorney the district court of F. county granted a temporary injunction restraining defendants, their agents, clerks, and employés, from pursuing the business of selling intoxicating liquor, and from opening or keeping open for the purposes of business all houses and places of business where such liquors were stored. Defendants filed a motion to dissolve the injunction, which was also an answer to the merits, and by agreement the district judge heard the case in N. county in the same judicial district, and, after hearing evidence for and against the injunction, rendered a judgment which, after setting out the temporary injunction, perpetually restrained and enjoined defendants from doing any and all of the acts and things “which they are inhibited by said temporary writ from doing.” Held that,’ while under Rev. St. 1911,- art. 4644, authorizing appeals from orders or judgments granting, refusing, or dissolving temporary injunctions, no appeal lies from an order refusing to dissolve an injunction, the judgment was not an order refusing to dissolve the temporary injunction, but a final judgment forever enjoining defendants from pursuing the business of selling intoxicating liquors, and was appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426, 434, 464-477, 4S0, 481; Dec. Dig. <&wkey;>78.]
    2. Appeal and Error &wkey;>131 — Decisions Ap-pealable — Nature op Decision.
    Where such judgment purported to be a judgment of the district.court of F. county, and was regularly entered upon the minutes of that court, it was immaterial so far as the right of appeal was concerned that the judge rendered the judgment outside of F. county, though it was contended that there was no change of venue, and that the agreement as to the trial of the case related only to the motion to dissolve the temporary injunction, especially in view of Rev. St. 1911, art. 1714, authorizing the judge of a district court to hear a cause and render a final judgment therein in vacation by agreement of the parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 895; Dec. Dig. &wkey;>131.]
    3. Intoxicating Liquors <&wkey;275 — Violations — Injunctions—Evidence.
    Under Rev. St. 1911, art. 4682, providing that in any proceeding under the three preceding articles relative to injunctions restraining violations of the liquor laws, evidence of the general reputation of the house, building, or premises, or the business, occupation, or pursuit of the defendant involved, may be admitted in evidence, in a suit to enjoin defendants from pursuing the business of selling intoxicating liquors at a place not in local option territory, it was error to admit evidence as to the general reputation of defendant’s place of business.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 411; Dec. Dig. <&wkey;275.j
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by the State against Henry Tray-han and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    R. L. Williford and R. M. Edwards, both of Fairfield, and A. B. Geppert, of Teague, for appellants.
   JENKINS, J.

The appellee, by the county attorney of Freestone county, presented its petition for injunction to Horn H. B. Daviss, judge of the Thirteenth judicial district, which district includes the counties of Freestone and Navarro. The judge granted a temporary injunction, and afterwards heard the case at Corsicana, in Navarro county, and entered judgment perpetuating the injunction. Appellee insists that the appeal herein should be dismissed, for the reason that it is an attempted appeal from an order of the district judge made in vacation overruling a motion to dissolve the temporary injunction previously granted by said judge. Appellants contend that this is an appeal from a final judgment of the district court of Freestone county perpetuating said injunction. The appellants' filed a motion to dissolve said injunction, which motion was also an answer to the merits. By agreement of parties the district judge heard the case at Corsicana, in Navarro county. The hearing appears to have been on the merits; that is, the record shows that he heard the evidence both for and against such injunction.

The statute in reference to appeal in matters of injunction (article 4644) provides as follows:

“Any party * * * to any civil suit wherein a temporary injunction is granted, refused or dissolved, * * * in term time or vacation, may appeal from the order or judgment granting, refusing or dissolving such injunction.”

It will be seen that this statute does not confer the right of appeal from an order refusing to dissolve an injunction, but, as we construe the judgment in this case, it is a final judgment; and if so, appellants had the right of appeal. The judgment of the court sets out the temporary injunction in hrec verba, and concludes as follows:

“That the defendants Henry Trayhan and Jules Trayhan be and are hereby perpetually restrained and enjoined from doing any and all of the acts and things which they are inhibited by said temporary writ from doing.”

We quote from said temporary writ as follows:

“It is further ordered that, when said writ of injunction is served on the defendants, or when any notice thereof shall in any way come to them, each and all of defendants, and their agents, clerks, and all employés and persons acting for them, shall be and they are hereby enjoined and prohibited from pursuing the business of selling intoxicating liquor at or near Oak-wood or elsewhere in Freestone county, Tex., and enjoined and prohibited from opening or keeping open for the purposes of business all houses and places of business where intoxicating liquors are stored, so loitg as such liquors are stored or kept there for sale, until the further order of this court.”

It will thus be seen that by the judgment entered herein defendants were forever enjoined from pursuing the business of selling intoxicating liquors1, as recited in said temporary writ. It is the contention of appellee that no final judgment could have been entered herein, for the reason that there was no change of venue, as provided by law, and none by agreement, and therefore the case could not be tried in Navarro county; it being the contention of appellee that the agreement as to the trial of the case in Navarro county related only to the motion to dissolve the writ. The judgment in this case does not purport to be the judgment of the district court of Navarro county, but of the district court of Freestone county. The judge of a district court may hear a cause and render a final judgment therein in vacation by agreement of the parties. Article 1714, R. S. In so far as determining the right of appellants to appeal from the judgment, we think it is immaterial, if such be the fact, that the judge rendered his judgment outside of Ereestone county. The judgment is regularly entered upon the minutes of the district court of Freestone county, and until reversed or set aside it is a final judgment against appellants restraining them from selling intoxicating liquors.

Defendants’ bill of exception No. 3, omitting formal parts, is as follows:

“Be it remembered that upon trial of the above numbered and entitled cause, the state having introduced the evidence of several witnesses relating to the general reputation of the place of business where defendants have been conducting business, as to whether or not they have been engaged in selling intoxicating liquors at retail, that is, in quantities less than a gallon, after an agreement was entered into that the place where the defendants had been conducting their business was not in local option territory, the defendants moved the court to strike from the record all of the testimony of each and every witness relating to the general reputation of defendants’ place of business as aforesaid, for the reason that said evidence was hearsay; that article 4682 of the Revised Statutes, permitting general reputation evidence, had no application, for the reason that the record shows that the place of business of the defendants was not in local option territory; that general reputation evidence is not admissible to prove that the person engaged in the sale of intoxicating liquors was selling at retail or wholesale. And the court overruled said motion, and refused to strike said testimony from the record, to which action of the court the defendants and each of them excepted, and tendered this bill of exceptions, and asks that the same be signed and filed as a part of the record in this cause. Examined, approved, and signed by me and ordered filed as a part of the record in this cause this 9th day of July, 1914. I-I. B. Daviss, Judge of the District Court, Thirteenth Judicial District.”

We sustain appellants’ assignments of error with reference to the admission of this testimony, and for that reason this case is reversed and remanded.

Reversed and remanded.
      cg^oFor other eases see same topic and KEY-NUMBJ3R in all Key-Numbered Digests and Indexes

      cg^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ANDERSON et al. v. STATE.
    (No. 5499.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1915.)
    Appeal from District Court, Ereestone County; H. B. Daviss, Judge.
    Civil action by the State against Frank Anderson and other’s. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    R. L. Williford and R. M. Edwards, both of Fairfield, and A. B. Geppert, of Teague, for appellants.
   RICE, J.

This is a companion case to that of Henry Trayhan et al. v. State of Texas, 180 S. W. 640, from the same county, this day decided by this court, and in which the judgment of the court below was reversed, and the cause remanded, and this appeal involves in every respect the same issues as presented in that case, for which reason we refer to and adopt the opinion in said case, and enter a similar order herein reversing and remanding this case.

Reversed and remanded.


author: RIGE, J.

text:
    DILLON v. STEWART.
    (No. 5530.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 17, 1915.)
    1. Highways i&wkey;184 — Actions fob Negligent Use — Instructions — “Ordinary Care” — “Gross Negligence.”
    In an action for the value of a mule struck by an automobile while running loose on a public road in a county where the stock law forbidding stock to run at large was in force, the court refused instructions that the mule was running at large in violation of law, and that, to entitle plaintiff to recover, the jury must believe that defendant, . after discovering the presence of the mule and its peril, did not exercise ordinary care in attempting to stop the machine and avoid injury to the mule, and that “ordinary care” in this regard meant such care as an ordinary, prudent person would have exercised under similar circumstances, and that defendant was not required to be on the lookout for loose animals, and, before the jury could find for plaintiff, they must believe that he saw the danger to the mule in time to have prevented it by the ordinary use of the means at hand, or that he was guilty of gross negligence in not discovering the mule in time to prevent the injury, and that the term “gross negligence” meant a reckless disregard of the rights of others. Held, that these charges clearly presented the issue of gross negligence, and should have been given where this feature of the case was not presented by the main charge.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 471 — 474; Dec. Dig. <&wkey;>184.
    For other definitions, see Words and Phrases, First and Second Series, Gross Neglig'ence, Ordinary Care.]
    2. Highways <&wkey;172 — Negligent Use of Highways — Evidence of Negligence.
    That a mule running loose on the highway when struck by an automobile was seen by the driver of the automobile when 30 yards away did not necessarily show that the driver was guilty of gross negligence.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 459, 460; Dec. Dig. <&wkey;>172.]
    3. Highways <&wkey;177 — Negligent Use of Highways — Liability for Injuries.
    Pen. Code 1911, art. 815, provides that no automobile shall be driven or operated upon any public road at a greater rate of speed than 18 miles an hour. Held that, though a person driving an automobile in excess of 18 miles an hour was negligent, he was not liable for the value of a mule running' loose on the highway in violation of law and struck by the automobile, unless he was guilty of gross negligence.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 466; Dec. Dig. <&wkey;177.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by N. Z. Stewart against L. Dillon. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Williams & Williams, of Waco, for appellant.
   RIGE, J.

On the morning of the 1st .of February, 1914, appellee’s mule was injured so badly that it became necessary to kill it. I-Ie alleged that the injury was caused by the negligence of appellant in striking the mule with his automobile, which he was running at an unlawful and high rate of speed along tlie public road passing appellee’s house, and also that appellant saw the mule in time to have prevented the injury, but negligently failed to do so. Appellant answered, specially denying the matters of negligence charged against him, and, further, that the stock law was in force in McLen-nan county forbidding stock to run at large; that, while traveling along the public road, and not expecting to find any stock thereon, the mule suddenly jumped from the side of the road in front of his auto out of some brush and weeds as he was turning a bend, and, notwithstanding he did all in his power to prevent the accident, he struck the mule, but denied that he was running at a high and dangerous rate of speed at said time as claimed by appellee; and this suit was brought to recover the value of the mule, together with the amount paid to the veterinary surgeon for attention to it.

Appellee was a farmer living on the public road leading from Waco to China Springs. On the morning of February 1, 1914, he discovered several of his mules west of the house on said road, and, when driven up, one of them had a hind leg broken; that these mules had been in the field the night before, which was inclosed by a reasonably good fence; that on the morning in question two autos, driven at a rapid rate of speed, passed his house about daylight, going towards China Springs; that, although he employed a veterinary to attend to the mule, he failed to relieve it, and it became necessary to kill it. Appellee testified that he noticed where something had been dragged along the road where the mules were seen, and also saw blood and hair on the ground, and noticed some broken glass and where water had been spilled. He also testified that a few days thereafter he had a conversation with appellant, who told him that he struck the mule on that road that morning; that when he hit the mule he broke his radiator and the water poured out; that he also broke one of his lights, and that glass fell in the road; that he thereafter talked with Mr. Cox who was in the machine with appellant at the time the mule was struck, who told him that he saw the mule jump in the road ahead of the machine some 30 steps away and called Mr. 'Dillon’s attention to it.

Appellant testified that on the morning in question, about daylight, he was traveling in his auto, accompanied by Mr. Cox, from AYaco to China Springs; that some 200 yards before he got to appellee’s house on that morning a mule suddenly jumped from some weeds and brush on the side of the road in front of his auto while turning a bend in the road, and that, although he did all within his power to prevent striking it, he hit the mule on the hind leg and knocked him around out of the road, and the mule went limping off; that he did not knock it down nor drag it; that he was running between 12 and 16 miles an hour at the time; that the mule jumped in the road in front of his ear not exceeding 20 feet of him, which was the first knowledge he had of the presence of the mule in the lane; that he never went as far west as appellee’s house, and never passed the place where appellee claims to have found hair and blood and evidence of something having been dragged in the road; that the collision broke one of the corners of the radiator loose, and so disabled his car that it was impracticable for him to continue his journey, whereupon he turned around and went back to Waco; that the radiator was broken so that it leaked, and one of the glasses on his headlight was broken and some of the glass left in the road; that about a mile and a half before hitting the mule two autos passed him at a very rapid rate of speed, running 30 or 40 miles an hour, going in the direction that he was traveling; that they were running some 150 or 200 yards apart; that before striking the mule his car had skidded in some loose gravel at a turn 3 or 4 miles from the place where he struck the mule, and that he ran off the road to one side and wrenched his car to such an extent that he broke the windshield, but that he got back on the road and continued Ms journey until he struck the mule; that the stock law prohibiting animals from running at large was in force in the county; and that he was not expecting to see the mules in the road at that place.

Mr. Cox corroborated the testimony of appellant, except he stated that he did not know how fast they were running; that, being a stranger, he could not tell upon what part of the road the mule was struck. He denied telling appellee that he saw the mule 30 yards in front of the car, and called Dillon’s attention thereto, but that he did tell appellee that he saw the mule jump in the road in front of the car, and spoke to Dillon about it, but did not state how far the mule was in front of the car when he ..first saw it and spoke to Dillon, but it was only a short distance.

There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is taken.

Appellant insists that the court erred in refusing to give his special charges Nos. 3 and o, which are as follows, to wit:

“No. 3. You are instructed' that the mule of plaintiff, which plaintiff alleges was injured by the defendant, was running at large, in violation of law, in the lane at the time the same was struck by the defendant, if he was so struck, and that, in order to entitle plaintiff to recover, you must believe from the evidence that the defendant, after discovering the presence of the mule and the peril that the mule was in, did not exercise ordinary care in attempting to stop his machine and to avoid injury to said mule, and you are instructed that ordinary care in this regard means such care as an ordinary, prudent person would have exercised under the same and similar circumstances, and, unless you so believe, you will return your verdict for the defendant.”
“No. 5. You are charged that the stock law was in, force at the time and place the male was injured, and that said mule was in the road in violation of said law, and defendant was not required to be on the lookout for loose animals in the road, and, before you can find for plaintiff, you must believe from the evidence that the defendant saw the danger to said mule in time to have prevented the same by the ordinary use of the means at hand, or that the defendant was guilty of gross negligence in not discovering said mule in time to prevent the injury thereto, and you are charged that the term ‘gross negligence’ means a reckless disregard of the rights of others.”

Both of these charges, in our judgment, should have been given. The appellee, under the circumstances, in order to recover, roust show that appellant was guilty of gross negligence, and these charges clearly presented this issue. While there is evidence that the mule was seen before it was struck, yet the uncontradicted evidence is to the effect that appellant did all within his power to prevent the accident after discovering the mule.

The mere fact, if it be a fact, that the mule was seen 30 yards away, as claimed by appellee, does not necessarily show that appellant was guilty of gross negligence. Even if appellant were running in excess of 18 miles an hour, which would render him guilty of negligence under the law (see Penal Code, art. 815), still it is shown that the animal in question was upon a public highway in violation of law; and, such being the case, in order for appellee to recover, it must appear that appellant was guilty of gross negligence. See M., K. & T. Ry. Co. v. Russell, 43 S. W. 576; H. & T. C. Ry. Co. v. Jones, 10 Tex. Civ. App. 179, 40 S. W. 745; H. & T. C. Ry. Co. v. Hollingsworth, 29 Tex. Civ. App. 306, 68 S. W. 724; M., K. & T. Ry. Co. v. Hanacek, 93 Tex. 446, 55 S. W. 1117; Railway Co. v. Cocke, 64 Tex. 157, in which last case it was held that, if there was a valid ordinance or a statute in force at the time where the injury occurred by which the running at large of animals is made unlawful, then the entry of animals upon a railway track or other inclosed lands is a trespass. In such case the railway company will not be responsible to owners for injury done by its ears to animals entering upon its track, unless the conduct of its employes amounts to gross negligence; for, under such circumstances, railway companies are entitled to presume that all persons will comply with the law which forbids the owner to permit his animals to run at large. Therefore they are excused from the exercise of that care which would not be necessary if the owner complies with the law — in other words, are excused from the exercise of such care as they should exercise were it lawful for animals to be at large, and therefore expected to be so — and, further, that if stock unlawfully enter upon a railway track, it is enough that employés of the company use such care, after the danger becomes apparent, as a prudent man would under the same circumstances, to avoid injury. Railway Co. v. Jones, supra.

These charges clearly presented appellant’s theory of defense, and he was entitled to have such defense passed upon by the jury. See M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058, and other cases there cited.

The main charge of the court failed to present this feature of the case. The failure to give these charges, in our judgment, constituted reversible error, for which reason the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
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text:
    HERRON v. TOLBERT.
    (No. 5519.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1915.)
    1. Appeal and Error &wkey;>66 — Decisions Ap-pealable-Necessity ox Final Judgment.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 2078, providing that an appeal or writ of error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which it has original jurisdiction, and from every final judgment of the county court in civil cases of which it has appellate jurisdiction where the judgment or amount in controversy exceeds §100, exclusive of interest and costs, an appeal can only be taken from a final judgment of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. &wkey;?66.]
    2. Habeas Corpus <&wkey;113 — Decisions Ap-pealable — “Final Judgment” — “Judgment.”
    In a habeas corpus proceeding by a child’s maternal grandmother against its father and its paternal grandparents, with whom the father had left it to be cared for, in which the petitioner alleged that defendants were not proper persons to have the custody and control of the child, and that the petitioner was financially and otherwise able to rear and maintain it, the court adjudged that the custody, maintenance, and education of the child be committed and awarded to its maternal grandmother, subject, however to the conditions thereinafter specified; that the temporary custody of the child be given and awarded to its paternal grandparents until the further orders of the court; that such temporary custody be not disturbed until such reasonable time as the father might, to the court, show himself competent, worthy, and able to rear and care for the child, at which time and upon which showing the custody of the child would be awarded to him, and that if he did not, within a reasonable time, make such showing, the final and absolute custody should remain with the maternal grandmother. Held, that this was not a final but a conditional judgment, from which no right of appeal existed, as the issue as to the permanent custody of the child was left open for further consideration, and a “judgment” is the final consideration and determination of a court af competent jurisdiction upon the matters submitted to it (quoting Words and Phrases, First and Second Series “Judgment”).
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. &wkey;113.] 3. Appeal and Error &wkey;>66 — Dismissal of
    Appeal for Lack of Final Judgment.
    Where there is no final judgment, an appeal ■will be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. &wkey;>06.j
    Appeal from District Court, Fayette County ; Frank S. Roberts, Judge.
    Habeas corpus by Mrs. Hope H. Herron against Frank M. Tolbert. From the judgment, plaintiff appeals.
    Appeal dismissed.
    Mathis, Teague & Embrey, of Brenham, and John T. Duncan, of La Grange, for appellant. L. D. Brown, of La Grange, Tex., for appellee.
   RICE, J.

On the 18th of June, 1912, Frank M. Tolbert and Ruthvan Champion, the daughter of Mrs. Hope H. Herron, were married at Palacios, and thereafter removed to La Grange, where on the 30th day of March, 1913, there was born to this union a son, Ruthvan Champion Tolbert. In about a month thereafter his mother died, and his father turned the child over to Mr. and Mrs. Corday Tolbert, his own father and mother, to care for; and this is a habeas corpus proceeding, brought by Mrs. Hope H. Herron against Frank Tolbert, the father, and Mrs. Corday Tolbert, the paternal grandparent, for the custody and control of said minor, predicated upon the ground that they were not proper persons to have such custody and control, and that she was financially and otherwise able to rear and maintain it. Respondents presented the child in court in response to the writ, and answered, denying the allegations in the application, and alleged in detail the incompetence and unfitness on the part of the applicant to have the custody and control of said child, setting up facts" showing their own right thereto, and their fitness therefor, and praying that the court award him, the father, the custody and control of said child. The court, after hearing the facts, entered the following judgment:

“On tbig tbe 18th clay of May, 1914, tbe above styled and numbered cause came on for hearing, all parties appeared before tbe court and announced themselves ready for trial, a jury being waived, and all questions of fact and law were submitted to the court, and the court, after hearing tbe evidence and argument of counsel, took said cause under advisement, and now, on this the 21st day of Maj', renders the following judgment:
“I conclude from all the evidence in this case that the best interest and future welfare of tbe child demands that its custody, maintenance, and education be awarded the maternal grandmother, but the evidence further shows that the immediate interest and physical welfare of said child demand that it remain in the temporary custody of its paternal grandmother, and that such custody shall not be disturbed until the further orders of this court, or until such reasonable time as the father may show himself competent, worthy, and able to rear and care for the child, in which event the custody of said child will be restored to its said father, otherwise in default on the part of said father to show liimself, within a reasonable time, worthy and able to rear and care for his child, then I conclude from the evidence in this case that the best interest and welfare of said child demands that its final and absolute custody be awarded to its maternal grandmother; and it is so ordered.
“It is therefore ordered, adjudged, and decreed by the court that the custody, maintenance, and education of the child, Ruthvan Champion Tolbert, shall be and is hereby committed and awarded to its maternal grandmother, Mrs. Hope Herron, subject, however, to the following conditions:
“First. That the temporary custody of said child is hereby given and awarded to its paternal grandmother and grandfather, Mr. and Mrs. Corday Tolbert, and that such temporary custody shall not be disturbed until the further orders of this court.
“Second. That said temporary custody símil not be disturbed until such reasonable time as the father of said child, viz., Frank M. Tolbert, may to this court show himself competent, worthy, and able to rear and care for said child, at which time and upon which showing said child will be delivered to its father, and its custody awarded to him.
“Third. That if the said Frank M. Tolbert, the father of said child, does not, within a reasonable time, show himself worthy, competent, and able to rear and care for. said child, then it is ordered, adjudged, and decreed that said child shall be delivered to, ,and its final and absolute custody be in and remain with, its maternal grandmother, Mrs. Hope H. Herron. And it is ordered, adjudged, and decreed that said custody be so awarded,” etc., taxing the costs.

From which judgment appellant prosecutes this appeal.

An appeal can only be taken from a final judgment of the trial court. See article 20T8, vol. 2, Vernon’s Sayles’ Civ. Stats., which provides that:

“An appeal or writ of error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases of which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds $100, exclusive of interest and costs.”

The only question to be considered, then, is whether or not the judgment rendered is final; if- not, this court has no jurisdiction, and this appeal should be dismissed. The principal issue raised by the pleadings is whether Mrs. Herron or Frank Tolbert was entitled to the custody and control of this child during its minority. The judgment rendered does not finally dispose of this issue. While the judgment did recite that the permanent custody of the child was awarded to. Mrs. Herron, yet it provided that it shall remain in the temporary custody of Mr. and Mrs. Corday Tolbert, and whose custody should not be disturbed until the further order of this court, or until such reasonable time as the father, Frank M. Tolbert, might show to the court that he was competent, worthy, and able to care for and rear said child, at which time and upon which showing its custody should be awarded to him. The issue as to the permanent custody of the child was therefore left open for further consideration of the court, dependent upon the conduct of the father. Such judgment, therefore, was not a final, but a conditional, one, from which, we think, no right of appeal existed. In Linn v. Arambould, 55 Tex. 611, it is held that no final judgment from which an appeal or writ of error can be prosecuted lies until all the issues as to all the parties hare been finally adjudicated in the court, and that no order or decree, which does not preclude further proceedings in the case in the court below, can be regarded as final. Mr. Justice Walker, in delivering the opinion in that case, quoting from Freeman on Judgments, § 29, said:

“A final decree is one which disposes of the cause, either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, decreeing either in favor of or against the prayer of the bill. But no order or decree which does not preclude further proceedings in the case in the court below should be considered final.”

In the instant case the decree was not intended to be final, but, on the contrary, was expressly left open, subject to the further order of the court Besides this, it expressly named a condition upon the happening of which the father might have possession of the child, the determination of which was to be had at some future time. In Words and Phrases, vol. 4, p. 3830, it is said that:

“Among various definitions of a judgment, not differing in legal effect from each other, we have the one that it is ‘the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it.’ ”

See Bell v. Otts, 101 Ala. 186-188, 13 South. 43, 46 Am. St. Rep. 117, citing Freeman on Judgments, § 2.

Chief Justice Marshall, in Ex parte Watkins, 3 Pet. (28 U. S.) 193, 204, 205 (7 L. Ed. 650) says:

“A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case.”

In 23 Oye. p. 1126, subd. 5, it is said:

“A judgment cannot be set up in bar of a subsequent action, unless it was a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definitive manner.”

In order that a judgment should be final within the meaning of the rule just stated, it must be such as puts an end to the particular litigation, or definitely puts the case out of court; otherwise it is merely interlocutory, and constitutes no bar to a subsequent action. Again, on page 1128, subd. C, Cyc. it is said:

“A judgment which is not to become effective unless certain conditions are complied with, or which may be defeated or annulled by the performance of conditions subsequent, is no bar to a second action on the subject-matter, unless it has become absolute by the performance of the conditions in the one case, or failure to perform in the other.”

An appeal lies only from a final judgment. See Lumber Co. v. Williams, 71 Tex. 450, 9 S. W. 436.

Again, if there is no final judgment, the appeal will be dismissed. See Martin v. Sanford Crow, 28 Tex. 615; Simpson v. Bennett, 42 Tex. 241; Railway Co. v. Smith County, 58 Tex. 74; Whitaker v. Gee, 61 Tex. 218; Mignon v. Brinson, 74 Tex. 20, 11 S. W. 903.

Believing that the judgment attempted to be appealed from is not final, it becomes our duty to dismiss the appeal; and it is so ordered.

Appeal dismissed.

       — 'Xm- other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: I-IIGGINS, J.

text:
    BARLOW v. LINSS.
    (No. 499.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1915.
    Rehearing Denied Dec. 16, 1915.)
    SET-OFF AND COUNTERCLAIM <&wkey;4&wkey;DlSMISSal — Nonjoinder of Necessary Parties.
    Where, in an action on a note given in renewal of a rental note by one of two lessees, the other lessee was not a party to the action, and it appeared that they were jointly and collectively entitled to enjoy the rights resulting from the lease, defendant’s counterclaim for damages from being deprived, by a sale of the property, of an option given by the lease to purchase and of the leasehold interest in the property, was properly dismissed for nonjoinder of the other lessee.
    [Ed. Note. — Por other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 82-96, 98, 99; Dec. Dig. <&wkey;44.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Eduardo Linss against L. C. Barlow. Prom judgment for plaintiff, defendant appeals.
    Affirmed.
    C. A. ICinkel, of El Paso, for appellant. Edgar Williams, of El Paso, for appellee.
   I-IIGGINS, J.

Linss sued Barlow upon the latter’s promissory note. The facts material to a consideration of the questions presented by this appeal are as follows: Linss leased to J. J. Mundy and appellant, Barlow, a ranch in Mexico, known as “La Hacienda del Fresno” for a period of six years from January 1, 1912. The lessees agreed to pay the lessor an annual rental of 5,000 pesos. An option to purchase was contained in the lease in favor of the lessees in these words:

“It is further provided and understood and agreed between the parties hereto that the parties of the second part may, if they desire, at any time before the termination of this lease, or at any time during the period thereof, purchase and acquire the said Hacienda del Fresno from the party of the first part, together with all of the personal property covered by the terms of this lease, for the stipulated price of thirty-eight thousand five hundred ($38,500.00) dollars (gold), it being understood and agreed that the said sum is subject to the offsets and additions, if any, under the previous clause hereof.”

To cover a portion of Ms share of the rental for 1912, Barlow executed a note in favor of Linss, which was not paid, and the note upon which this suit is based was given in renewal thereof. In January, 1914, Linss sold and conveyed the ranch to one Rodriguez. At the time of the conveyance to Rodriguez, Mundy and Barlow were in arrears for about six months’ rent. As a set-off and counterclaim Barlow set up the conveyance of the ranch by Linss to Rodriguez, an ipnocent purchaser for value, whereby defendant and Mundy were deprived of their right to purchase the property, as well as of their leasehold interest therein. It was further averred that his one-half interest in the option to purchase was worth $5,000; that he and Mundy were able to purchase the property under the option, and intended to do so; that the property was worth $60,000, and by reason of the sale to Rodriguez he had been further damaged in the sum of $10,750, which was his one-half of the difference between $60,000 and the contract price of $38,500; that he had been damaged in said sums of $10,750 and $5,000 by reason of the sale to Rodriguez, and judgment over against plaintiff for said sums was asked.

In the cross-action it was further averred that Linss was a nonresident of the state, without property or funds in the state subject to execution, and with no unexempt property in the United States. Judgment was rendered in favor of Linss for the amount of the note sued upon. The set-off and counterclaim was disallowed, and the same dismissed without prejudice to the right of Barlow and Mundy to jointly sue Linss in another action for the damage asserted in such counterclaim. Mundy was not a party to the suit.

Appellant’s assignments all relate to the action of the court in disallowing and dismissing the counterclaim pleaded by him. The court did not err in tMs respect. Under the lease contract between the parties, the obligations of Barlow and Mundy to Linss ■were joint, and collective, and they were jointly and collectively entitled to enjoy the rights resulting therefrom. At common law, if such a contract be violated by any of the parties thereto, all persons interested in the right must join in the suit to enforce it. Mr. Townes, in his work on Texas Pleading (2d Ed., at page 281), says that, so far as parties plaintiff are concerned, the rules of the common law in this respect are modified very little, if at all, in the Texas practice.

Under the decisions of our courts upon this question, it is clear that in suits of this nature all of the obligees are regarded as indispensable parties, and a failure to join them as such is fatal to the suit, and it is not necessary to plead such nonjoinder in abatement. Hanner v. Summerhill, 6 Tex. Civ. App. 674, 26 S. W. 906, and upon rehearing 7 Tex. Civ. App. 235, 26 S. W. 906; Williams v. Railway Co., 82 Tex. 553, at 560, 18 S. W. 206; Zwernenman v. Rosenberg (Sup.) 11 S. W. 150; Stachely v. Peirce, 28 Tex. 328; Railway Co. v. Ellis, 153 S. W. 701. In Hanner v. Summerhill, supra, the right to enforce a vendor’s lien vested in two legatees of the vendor, and in a suit to enforce it by one of the joint owners of the right it was held that both owners were necessary parties plaintiff and such defect in parties might be taken advantage of on appeal, though nonjoinder had not been pleaded. In the opinion rendered upon rehearing the question is discussed at length and the authorities reviewed.

This case and the other authorities cited clearly establish the rule in this state to be that in a suit to enforce an obligation arising out of a joint contract all of the obligees must be joined as parties plaintiff. It would seem that, if any of them refuse to so join, this fact may be alleged, and the parties refusing joined as parties defendant, so that all parties at interest may be brought before the court and their rights adjudicated. Williams v. Railway Co., supra. In other words, such obligees are regarded as indispensable parties, and it has frequently been held by the courts of our state that, when an indispensable party is omitted, the court will itself raise the objection and refuse to proceed to judgment until the defect is cured, and that the point may be raised on appeal, though nonjoinder has not been pleaded or the question raised in the court below. Railway Co. v. Oliver, 159 S. W. 853; Needham v. Cooney, 173 S. W. 979, and authorities there cited. So it follows the court properly refused to entertain the counterclaim arising out of the Linss breach of the lease contract.

We have noted the case of Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134, relied upon by ai>pellant, but it is not in point. That was an action for damages arising ex delicto, and the rule in such cases is different. The nonjoinder in such cases of a party jointly interested in the recovery of damages can, in general, be raised only by plea in abatement or by way of apportionment of the damages on the trial. This case holds no more than that. Railway Company v. Ochiltree, 127 S. W. 584, is likewise an action for damages arising ex delicto.

Consideration has also been given to Railway Co. v. Littlefield, 135 S. W. 1086, where the Court of Civil Appeals undertook to apply the principle enunciated in Waggoner v. Snody to an action for damages arising ex contractu. But a writ of error was granted, and, as will be noted from the opinion of the Supreme Court, 154 S. W. 543, the application was granted for probable error in the holding in that particular. The Supreme Court affirmed the decision of the Court of Civil Appeals, but upheld the right of little-field and the Whites to. recover all of the damages, because it’ appeared from the evidence that the cattle were in their possession and control, which placed them in the attitude of bailees thereof, who, having the right to ship and sell them, were entitled to recover damages to such cattle caused by a breach of the contract of shipment. It is thus clear that the Supreme Court in that case did not regard the rale applicable in cases of tort as being also applicable in cases arising ex contractu, and its action in granting a writ of error and affirming upon another ground must be regarded as authority against appellant.

The other authorities cited by appellant simply hold that, while the general rule is that set-oft's must be mutual and due in the same right with the debt sued upon, yet, under certain equitable circumstances — of which insolvency is one — debts, though not mutual or due in the same right, will be allowed to be interposed against each other. These authorities and the alleged insolvency of Linss have no pertinency. The nonjoinder of Mundy was fatal to the defendant’s right to prosecute his counterclaim, and the insolvency of Linss has nothing to do with the question of parties.

Affirmed.
      <§=oFor other cases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes