text:
    YOUNG et al. v. CAMPBELL et al.

    (No. 7297.)
    (Court of Civil Appeals of Texas. Dallas.
    April 10, 1915.
    Rehearing Denied May 1, 1915.)
    Wills ®=»63^-Construction — Interest Created — General Devise with Power of Disposition.
    Where testator’s will nominated his wife sole executrix “with full power to administer, use, enjoy, sell, convey, and pass .title to any and all of such estate as she may see fit, and use the same as her own during her lifetime” such a general devise with power of disposition rendered the remainder interests subject to defeasance by the wife’s action in disposing of the property as she might see At, so that the remain-dermen could not enjoin her disposition of the property as wasteful and in' fraud of their rights.
    [Ed. Note. — For other" cases, see Wills, Cent. Dig. §§ 148&-1510; Dec. Dig. <@^634.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by Annie May Young and others against Susan L. Campbell and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    McClellan & Prince, of Corsicana, and T. A. Altman, of .Et. Worth, for appellants. R. S. Neblett and Callicutt & Johnson, all of Corsicana, and Geo. A. Titterington, of Dallas, for appellees.

       Writ of error pending in Supreme Court.

   RAINEY, C. J.

Appellants, Annie May Young, S. J., J. A. T., and Thomas Tankersley, residuary legatees under the will of G. W; Tankersley, and Nancy Pursley and her husband, Sel ’ Pursley, brought this suit against Susan L. Campbell, George B. Campbell, Frank R. Robinson, and the John Hancock Life Insurance Company, appellees, alleging, in effect, that about December 20, 1881, one George Tankersley died testate, leaving surviving him Susan L. Tankersley, now Susan L. Campbell, and three brothers, viz., Thomas,. S. J., and J. A. T. Tankersley, but no children; that J. A. Tankersley died leaving children, naming them; that Susan L. Tankersley, now Susan Campbell, was made sole executrix of the estate of .George W. Tankersley, deceased, which inventoried over $25,000. A copy of the will was made a part of the petition; that Susan L. Campbell, as such executrix, was wasting and dissipating said estate and had fraudulently disposed of certain land’ to her son, George B. Campbell, for a recited fictitious consideration, with the intent to place said land beyond the reach of plaintiffs; that there was no necessity for said conveyance, and prayed for an injunction to restrain George B. Campbell from selling said land, and Mrs. Campbell from disposing of the property of said estate and canceling the pretended lien upon said land. Defendants Susan L. and George B. Campbell answered by general demurrer, by about 18 special demurrers to paragraphs of the petition, to the effect that the suit was prematurely brought as to the allegations of fraud, mismanagement, etc., and answered, specially admitting certain allegations and denying specially all allegations not admitted; that immediately after the death and probating of the will of George W. Tankersley Mrs. Campbell took absolute control of the estate, and repudiated the residuaries’ rights under the will, - and so notified them, and she pleads 10-year statute of limitation, and that said estate was the community property of herself and George W. Tankersley, deceased, and that said will no way affects her interest in said property, and that said George W. Tankersley, deceased, had no interest in lot 25x91, but that said lot was the community’ property of herself and her second husband, R.,B. Campbell, deceased. The John Hancock Life Insurance Company and Frank R. Rpbinson answered by general ’ and special exceptions and by general denial and specially admitting certain paragraphs and ’ denying .others. Annie May Young withdrew from the suit, and same was dismissed as to her. Upon hearing by the court of defendants’ general and special demurrers to plaintiffs’ petition, the same were sustained, and said cause dismissed, from which this appeal is taken.

The will of George W. Tankersley, deceased, attached to plaintiffs’ petitions is as follows:

“In the name of God Amen. I, Geo. ~W‘. Tankersley, of the county of Navarro and state of Texas, being in a low state of health, but of sound mind and disposing memory, do make and publish this my last will and testament, hereby revoking all other wills by me heretofore made.
“First. I direct that all my just debts and funeral expenses shall (by my executrix hereinafter named), be paid including attorneys fees out of my estate as soon after my decease as shall be found convenient by her.
“Second. I give and bequeath to my beloved wife, Susan L. Tankersley, all and entire, the remaining portion of my estate, real, personal and mixed, after the payment of my debts and funeral expenses to be by her the said Susan L. Tankersley used and employed absolutely for and during the term of her natural life, charged only with the care, maintenance and education of Annie May Tankersley a little girl now living with us, who it is my wish shall live with my wife, and be cared for, supported and well educated at the expense of my estate.
“Third. At the death of my wife, Susan L. Tankersley, I desire that my estate shall descend and pass to the following persons to wit: To Annie May Tankersley and her heirs, lawfully begotten of her body one full half of any and all of my estate remaining at the death of my wife, in fee simple forever.
“To my three (3) beloved brothers, S. J. Tankersley, J. A. T. Tankersley and Thomas Tankersley, the other remaining one half of my estate in three (3) equal shares, portions, share and share alike. That is to say, on the death of my wife Susan L. Tankersley I desire one full half of any and all my estate then in her hands to descend and vest in equal shares of % each to my aforesaid three (3) brothers and their heirs in fee simple forever.
“Fourth. I nominate and appoint my beloved wife, Susan L. Tankersley the sole executrix of this my last will and testament, with full power to administer, use, enjoy, sell, convey and pass title to any and all of such estate as she may see fit and use the same as her own during her life time, and until her death' I desire no partition or division of said estate, and in the event of my said wife’s dying before she qualifies or executes this trust I desire and request that she name her own successor and that such person as she may name shall be appointed executor of my will.
“Fifth. It is my desire that no other action be taken in the probate court of Navarro county in and about the administration of my estate further than to have this my will probated, and an inventory and appraisement of my estate filed. I request that no bond be required or exacted of my executrix by said court, but that she manage and control my estate without bond or security of any kind. In the management and control of my said estate and in all matters pertaining thereto it is my desire that my executrix will consult with my friend and attorney R. C. Beale who I wish to act as her legal adviser in the premises.”

The petition of plaintiffs, after stating that Susan L. Campbell, as independent executrix under the will of George W. Tankersley, deceased, took charge of all the property belonging to his estate, and in effect charges that she managed and controlled the same, sold the personal property, collected outstanding indebtedness, and used, spent, and '"appropriated the proceeds in a reckless and extravagant manner, had disposed of some land in Louisiana for less than its true value, and had spent, wasted, and used all the property from all sources; that Mrs. Campbell in 1912 fraudulently and for the purpose of defeating the residuary legatees out of their rights in 547 acres of land remaining executed a simulated conveyance thereto to her son, George B. Campbell, the cash consideration therein named being fictitious. The petition set up a good cause of action against appellants, unless by the terms of the will Mrs. Campbell had the absolute right to dispose of the property as she pleased during her lifetime, regardless of the claim of plaintiffs. The power given in the fourth clause of the will to Mrs. Susan L. Campbell to dispose of the property is:

“With full power to administer, use, enjoy, sell, convey and pass title to any and all of such estate as she may see fit and use the same as her own during her lifetime.”

This power of disposition is unlimited and about as broad as language can make it. In the case of Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133, where the terms of the will are very similar to the one here under consideration, Mr. Stay ton, Chief Justice, speaking for the court in reference to the powers conferred on the wife by the will of her husband, said:

“Speculation as to why he conferred on her such a power would be unprofitable, but it is likely that he felt he could safely intrust to the mother a power in the nonexercise of which her own children were interested. She having exercised the power conferred upon her, through whatsoever motive or upon whatsoever consideration, their contingent right was forever cut off when it was once exercised, and the fact that the property was reconveyed to her is a matter of no importance.”

In opposition to the foregoing case is one relied on by appellants, which was rendered by the Court of Civil Appeals for the Fourth District, styled Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137, where Mr. Justice Fly, delivering the opinion for the court, wherein the facts are very similar to those in this case and the case of Hanna v. Lade-wig, supra, is discussed, but not followed, and the Supreme Court denied a writ of error therein. There seems to be no material difference in the two eases as to the facts, except, if that be one, that the condition upon which the wife was to retain the property in the Littler Case had been breached by her second marriage, while in the Hanna Case, as in this, the conditions upon which the property was to descend (that is, by their death) had not transpired. The effect of granting the injunction in this case would be to annul and destroy the provision of the will granting to Mrs. Campbell the power to administer the estate and dispose of the property as she sees fit, which, if true, as Mrs. Campbell is still living, renders the bringing of this suit premature.

Under the law it is our duty to be governed by the decisions of the Supreme Court of this state, irrespective of what our views may be on a particular question; and, as the ease of Hanna v. Ladewig, supra, which is in point, has never been directly overruled by the Supreme Court, and, believing that the principles therein laid down are applicable to this case, we hold with it and affirm the judgment.

Affirmed.
      tgrrjPor other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    YOUNG et al. v. BANK OF MIAMI.
    (No. 754.)

    (Court of Civil Appeals of Texas. Amarillo.
    April 3, 1915.
    Rehearing Denied April 24, 1915.)
    1. Pleading <S^>228 — Exception—Pleadings Considered.
    In an action on. a guaranty, where plaintiff alleged that defendants were parties or privies to a former judgment and were concluded thereby and excepted to the part of the answer relating to the effect of such former judgment, and wherein defendants admitted the allegations of the petition, except as to the former judgment, as to which it was alleged that they were in no wise a party thereto, such allegation was but a conclusion of law, and the fact stated in the petition was admitted, so that the petition was properly considered by the trial court, though, "upon exceptions to the answer, the rule is that defendant’s pleadings alone are to be considered.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. <&=>228.]
    2. Guaranty <@^79 —Judgment —Conclusiveness — Parties.
    Where defendants sold their bank with a certain note due and guaranteed the collection of the note when reduced to judgment and reserved in their guaranty contract, a right to select an attorney to prosecute the note to judgment, and, under such reservation, selected an attorney who, under their direction, brought suit in the name of the plaintiff and prosecuted the note to judgment, they were privies at least, and in fact were parties with a beneficial interest in the judgment, which was conclusive as to them.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 93; Dec. Dig. <@=»79.)
    3. Guaranty <@=^82 — Suit Against Principal-Parties.
    Guarantors are bound by a separate contract to that of their principal, and cannot, as a rule, be made parties in a suit against him.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 97; Dec. Dig. <¿^82. ]
    4. Judgment <@^>624 — Bar—Parties.
    It is not' alwa3fs necessary, that the parties to two suits should be nominally the same in order that one may bar another, but it is generally sufficient if they are substantially the same in interest.
    • [Ed. Note. — For1 other cases, see Judgment, Cent. Dig. § 1139; Dec. Dig, <@=^624. ]
    5. Guaranty <@=3-79 — Judgment—Collateral Attack.
    The sellers of. a .bank with a note due it, who guaranteed its collection when reduced to judgment in a suit by their attorney and under their direction, had the opportunity of applying to the court entering the judgment against their principal to open or vacate it, and, being privies, had a right to prosecute an action in that court to defeat the fraud of the assignee and the principal, .and, by reason of their right to an assignment of the judgment, might have filed a bill in that court to Set aside the judgment, and, not having done so, could not, when sued on the judgment, collaterally attack it.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 93; Dec. Dig. <§=>79.] '
    6. Judgment <@=>5:UG-Validity — Fraud.
    As between parties and privies, a judgment obtained by fraud is not absolutely void, but voidable.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 956; Dec. Dig. <@=>514.]
    7. Principal and Agent <§=>115 — Acts op Agent — Representations.
    Where defendants had sold their bank and a note due it and had guaranteed its collection, reserving control over its reduction to judgment, and the plaintiff, when it purchased the note and took the guaranty, had no knowledge that a certain person was liable on the note, his representations that the note was good and collectible was made individually and not in the interest of, or as agent for, plaintiff, and did not bind the plaintiff.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 339-343; Dec. Dig. <§=> 115.]
    8. Guaranty <§=>79 — Conclusiveness op Judgment — Principal and Guarantor.
    In such case, where the guarantors, who had direction of a suit to reduce the note to judgment preparatory to taking- an assignment of the judgment, in the absence of any allegation that they did not know of the postponement of the collection of the note or of such party’s misrepresentation as to the maker’s financial standing, were concluded by the judgment entered on the note from setting up such postponement and misrepresentation to defeat their liability. .
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 93; Dec. Dig. @=>79.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by the Bank of Miami against D. J. Young, W. S. Martin, and others. Judgment for plaintiff, and defendants, except Martin, appeal.
    Affirmed.
    See, also, 161 S. W. 436.
    Hoover & Dial, of Canadian, and C. Coffee, of Miami, for appellants. J. A. Holmes, of Miami, and B. M. Baker, of Canadian, for appellee.

       Writ of error pending in Supreme Court.

   HUFF, C. J.

The appellees instituted this suit as a partnership under the partnership name of the Bank of Miami, against the appellants, D. J. Young, Robert Moody, Thomas F. Moody, and W. S. Martin, the latter of whom is not appealing in this case. This suit is based upon a contract between appellants and appellee executed on the 21st day of September, 1912, in which contract it is alleged that appellees purchased from appellants the Bank of Miami, together with all of its assets, books, notes, accounts, etc.

The appellants answered the petition of appellees by general and special exceptions, general and special answers, consisting of several paragraphs. The appellees, by exception, urged to paragraphs 3, 4, 5, and 6 of subdivision 3 of appellants’ answer on the ground that the matters therein alleged had been concluded by a certain judgment in the district court of Roberts county The trial court sustained these several exceptions and struck out the paragraphs so excepted to.’ It appears "that the appellants on the day that these exceptions were acted upon, had filed their admission in writing of the appellee’s cause of action, as-set out in their petition, subject to matters alleged in their answer under rule 81 (142 S. W. xx) for the district courts. The parties entered into an agreement eliminating all matters, except that set out in paragraph 5 of the agreement, in which it is agreed:

“That the only issue to be determined by the court is as to the liability of defendants D. .T. Young, Robert Moody, and Thomas 3?. Moody on the H. J. Newman, R. 3T. Gilman, and L. G. Dana judgment, set out in the various paragraphs of plaintiff’s original petition; and it is agreed that, in determining the same, the attorney’s fees included in said judgment is to be abandoned, it being understood and agreed that the judgment was taken by H. E. Hoover and J. G. Dial, and that they released the plaintiff from all the liability for attorney’s fees, and that, should the court hold these defendants liable upon said judgment in any sum, then, in fixing the amount of liability the amount of actual attorney’s fees included in the judgment shall be deducted therefrom.”

The court rendered judgment in accordance with agreement after having sustained the exceptions to the answers heretofore mentioned by us, reciting the admission of plaintiff’s cause of action as filed in the case before trial. Nineteen-twentieths of the amount rendered is against Young, Robert, and Thomas Moody and one-twentieth of the amount is against W. S. Martin.

It will not, we think, be necessary to consider each assignment separately, as all the exceptions to the answer present the same grounds to each paragraph; that is, that the judgment obtained in Roberts county in the case of Bank oif Miami v. Martin and others is conclusive of the matters alleged by appellants in their answer, for the reason that appellants were privies thereto, if not parties. In paragraph 1 of the answer appellant admits the allegations in paragraph 1 of appellees’ petition as being substantially correct, except as applied in this case, will be shown in defendants’ special answer thereto to follow this subdivision of the answer; .and in their second paragraph they admit the matters set out in the second paragraph of plaintiff’s petition, “with the limitations expressed in paragraph 1 above, admit the allegations in paragraph 2 of said petition.” The sixth paragraph of subdivision 3 of the answer of appellants alleges, as a bar to the recovery on. the judgment, that the suit was instituted and prosecuted by appellee and through its fraud permitted W. S. Martin to escape liability thereon; “that these defendants could not avail themselves of the fraud in said suit because they were in no wise a party thereto.” Then follows the allegations of acts alleged as fraud in obtaining the judgment. The petition of appellees alleges in the first paragraph that on the 21st day of September, 1912, appellants and W. S. Martin were engaged in a general banking business, and that on that day appellees bought the bank business from appellants and Martin, including the note which was reduced to judgment and the subject-matter of this suit, paying therefor a valuable consideration, and that the parties entered into a written contract and agreement with reference thereto, which included an obligation of the defendants to guarantee payment of all the notes, etc., at that time due the bank of Miami, which was the partnership name of appellants at the time of the sale. The consideration therefor was the purchase price paid by appellee for the banking business, which was subject to the condition:

“That all notes, etc., due and to become due said bank, were to be collected by the newiy organized bank in so far as collections could be made by notice to and demand on the debtors; and when collections could not be made in that way the newly organized bank was to turn the notes, overdrafts, etc., not then collected, to an attorney selected by D. J. Toung, one of the defendants, said attorney to sue upon the same in the name of said newly organized bank, reduce the same to judgment, and, if possible, collect by execution. If collections could not thus.be made, then defendants were to pay plaintiff the money due on all uncollected notes or the amount of said judgment or said overdrafts, etc., paying same, if the judgments, on a proper transfer of the judgments to them-, and paying all in the ratio as follows: Defendants Young and Robert and Thomas F. Moody were to pay nineteen-twentieths of such demand and Martin one-twentieth thereof.”

The second paragraph alleged:

“That, in the performance of its duty under said contract, it placed in the hands of the attorney to receive the same, appointed and selected under the contract by defendant Young, to wit, H. E. Hoover, a note covered by said, contract of guaranty hereinabove mentioned on H. J. Newman, R. F. Gilman, and D. G. Dana, for the sum of $3,578.90, with interest at 10 per cent, per annum from July 8, 3911, and said Hoover instituted suit thereon in the name of said newly organized bank, in the district court of Roberts county, Tex., and recovered judgment thereon in said court for the sum of $4,790.14, on the 17th day of September, 1913.”

And it further alleged the issuance of an execution, the failure to collect thereby, and the impossibility to collect at all times; that appellees prepared a duly executed transfer of the judgment to appellants under the terms of the contract; and that appellants refused to pay in accordance with the guaranty. Upon exceptions presented by ap-pellee to the effect that the appellants, being privies to the judgment, if not parties in the suit, set out in the petition, were concluded from setting up the facts alleged in paragraphs 3, 4, 5, and 6 of subdivision 3 of appellants’ answer, the trial court struck out that part of said answer above mentioned upon said exceptions, to which action of the court appellants present several assignments of error.

This action of the court is the only issue presented for our determination. If ‘the facts, as alleged in plaintiff’s petition, are sufficient to render the appellants privies or parties to the judgment, then we think the action of the court was correct.

The appellants, ■ however, insist that, upon exception, the pleadings of the defendant should be looked to alone, and that the petition cannot be taken into consideration in passing upon the exceptions. This is ordinarily correct, as we understand tlie rule. It will be observed, however, that in paragraphs 1 and 2 of appellants’ answer they admitted the provisions above set out in the pfiaintiff’s petition, except as applied to the ease, to be thereafter shown by the answer. There is a general allegation in the answer of appellants “that they were in no wise a party thereto” (meaning the judgment). This is but an allegation of a conclusion of law. The facts stated in the petition are not controverted but admitted. This being true, we think the petition was properly taken, into consideration by the trial court.

We think the fact that appellants had sold the note and guaranteed its collectibility, when reduced to judgment, and reserving in their guaranty contract the right to select an attorney to prosecute the debt to judgment, and having, under that stipulation of the contract so reserved by them, selected such an attorney who, under their directions, did bring suit in the name of the new bank (appellee), and prosecuted to judgment the debt, became privies at least, and were in fact parties with a beneficial interest in the judgment. Such judgment, we believe, concludes the issues sought to be presented in the answer stricken out by the trial court. Hartford, etc., v. King, 31 Tex. Civ. App. 636, 73 S. W. 71; Estey v. Luther, 142 S. W. 649; Great Northern Railway Co. v. Akeley, 88 Minn. 237, 92 N. W. 959; Drummond v. Prestman, 12 Wheat. 515, 6 L. Ed. 712; Black on Judgments, vol. 2, §§ 573, 574, 5S6; Carroll v. Nodine, 41 Or. 412, 69 Pac. 51, 93 Am. St. Rep. 743.

Appellant Quotes from Glasscock v. Hamilton, 62 Tex. at page 163, an expression as if made by that court. That quotation was made by the Supreme Court from Moss v. McCullough, 5 Hill (N. Y.) 134:

“The surety is bound by the acts in pais of the principal or his agents, but is neither bound nor touched by any judicial proceeding to which the principal alone is a party; nay, says Jackson v. Griswold, even though he actually participate in the prosecution or defense, unless he be a party to the record.”

In Glasscock v. Hamilton, supra, the case was decided on the fact that the evidence, aside from the judgment, conclusively proves liability of the surety.

Black on Judgments, § 586, states the rule as given in the quoted cases from New York, but says:

“On the whole, the best rule which can be deduced from the authorities is that the judgment is conclusive upon the surety only in case where the principal may be considered as the former’s agent in the particular transaction, and where, upon a fair construction of the ' contract of indemnity, it may be construed as binding- the sureties to a responsibility for the conduct or result of the suit in which the judgment is rendered.”

The case of Oceanic S. & L. Co. v. Compania, etc., 144 N. Y. 663, 39 N. E. 360, decided by the Court of Appeals of New York, was a suit on a judgment which had been obtained against the plaintiff in consequence of negligence by the defendant. While the defendant was in possession of a certain pier, which it had leased from plaintiff, a third party, was injured by the falling of a large door. 1-Ie sued the plaintiff for damages. After suit by the injured party, plaintiff notified defendant of the suit in which the attorney for plaintiff wrote defendant that they had advised their client that defendant was liable; that they would be glad of defendant’s assistance in the trial of the case. The defendant did not appear in the damage suit. The court said in that case that:

“No particular form of words is necessary in order to constitute notice in such cases, nor is it even necessary to give a written notice. It is sufficient that the party against whom ultimate liability is claimed is fully and fairly informed of that claim, and that the action is pending, with full opportunity to defend or participate in the defense. If he then neglects or refuses to make any defense he may have, the judgment will bind him in the same way and to the same extent as if he had been made a party to the record.”

It has been frequently held in this state that warrantors of title, both of real and personal property, may be brought in to defend the snit, and that, upon notice to do so, they will be bound by the judgment. Legg v. McNeill, 2 Tex. 428; Garrett v. Gaines, 6 Tex. 435; Frey v. Railway, 86 Tex. 465, 25 S. W. 609. Indemnitors on the bond to a sheriff may be made liable upon notice to defend (Cabell v. Hamilton, etc., 81 Tex. 104, 16 S. W. 811; Stevens v. Wolf, 77 Tex. 215, 14 S. W. 29); and, when such in-demnitors have notice and fail to appear, the judgment is conclusive (Illies v. Fitzgerald, 11 Tex. 417; McCosland v. David, 22 Tex. Civ. App. 53, 54 S. W. 404). We cite these authorities on the question as to who are privies or parties to the judgment.

We, of course, recognize the rule that guarantors are bound by a separate contract to that of their principal, and cannot, as a rule, be made parties in a suit against the principal (see authorities cited in Young v. Bank of Miami, 161 S. W. 436); but if, by the contract, the guarantor reserves to himself the right to select the attorney to prosecute the case to judgment, and under this right he does so for the purpose of protecting his rights and interest and in order to fix his ultimate liability, we can see no reason why he should not be treated as a party with an interest in the suit, and as a privy therein in the true sense of the word, even though the suit is in the name of another. Appellants do not appear as parties defendant, but appear as a party plaintiff, and were the active plaintiffs and agents in the procurement of the very judgment which they now seek to vacate. If the appellees, in suing the principal on the note, had sought to make appellants parties, they might have been dismissed on exceptions because of misjoinder; but, if they remain in, certainly they would have been parties to the judgment. The allegations show that appellants, through their attorneys, instituted the suit in the name of the appellees. In the case of Great Northern v. Akeley, 88 Minn. 237, 92 N. W. 559, the sureties on a contractor’s bond, who had failed to comply with the terms of his contract, with reference to discharging liens, in a suit against the contractors, by the owner of the property, the sureties were notified of the suit and appeared and defended the same, through their attorney. It was held in that case that the judgment was conclusive against the sureties, and that they could not set up the fact in a suit against them by the owner of the property that there was in fact no lien against the property, and that for that reason they were not liable under the bond. In Brown v. French, 3 Tex. Civ. App. 445, 22 S. W. 581, it is said:

“The general rule upon this subject may be stated that, when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered against his principal, it is conclusive against him, although he was 'not a party to the suit in which the judgment was obtained.”

In the case of Estey v. Luther, 142 S. W. 649, in which a judgment lien debtor advised and requested his vendee of certain land which he sold after the lien attached to bring suit to remove cloud, it was held that Luther, the judgment debtor, was a party to the suit and judgment, though not in fact named in the original suit. An equitable assignee of a chose in action is estopped by the verdict and judgment therein in the same manner as if he were a party to the record.

It is not always necessary that the parties to the two suits should be nominally the same in order that one recovery may bar another; it is generally sufficient if they are really and substantially in interest the same. Black on Judgments, §§ 534, 537.

Having determined that appellants were not strangers to the judgment rendered in Roberts county against their principal, they cannot attack the judgment collaterally. They having had an opportunity to apply to the court entering the judgment to open or vacate it, they should have done so, and cannot resort to a collateral attack. Black on Judgments, vol. 1, § 260. It is alleged by appellants that judgment discharging Martin in the district court of Roberts county was had upon the fraud and collusion of appellees, Martin and the attorneys, of appellees. If this is true, appellants were privies to the proceedings, and had then the right to set up their interest and to prosecute an action in that court to defeat such action of appellees and Martin. As between parties and privies, a judgment obtained by fraud is not absolutely void, but voidable, subject to be set aside in direct proceedings brought for that purpose. Murchison v. White, 54 Tex. 78. It is their business to see that it was not so obtained. Sanger Bros. v. Trammell, 66 Tex. 361, 1 S. W. 378.. If the fraud occurred in obtaining the judgment, appellants were, under the contract, an equitable assignee of the indebtedness, and would have had the right, we think, to have filed a bill in equity in that court to set aside the judgment so obtained, even if they could not have appeared and answered thereto in the trial. When Martin set up he was not liable on the notes sued on in the Roberts county case, and the attorney for Martin, whom it is alleged was one of the appellees, asked that Martin be dismissed from the case, it was then evident to appellants, if their allegations are true, that the parties were trying to defeat a judgment against Martin. It was appellants’ duty to there urge, as we think they could have done, their rights and to have the debt established against Martin by judgment, which they had contracted should be transferred to them. We think they were guilty of such negligence and laches that they are not now entitled to relief; if they are, it is in the court where the judgment assailed was rendered. Estey v. Luther, 142 S. W. 649.

In the fourth and fifth paragraphs of the answer of appellants, it is alleged that Martin and appellees refused to push the collection on the notes, and their conduct was such that it amounted to an agreement to extend the time of payment of the notes, and was against the terms of the contract of appellants, which it set out in the answer.

It is also alleged that Martin represented to appellants the note to be good and collectible, and that they relied upon such representations. The appellees, with reference to this note, would not have been bound by Martin’s representations, for the reason, if the allegations are true, Martin was personally liable thereon, although he had not signed the note, and there was, so far as the face of the note was concerned, no evidence of his liability. Whether he was the agent of appellees or appellants, he was then acting individually and not for appellees. There is no allegation that the appellees, when they purchased the notes from appellants, or when they took the guaranty contract, had any knowledge that Martin was liable on the note. His representations with reference to this note were not therefore made in the interest of appellees and in the capacity of agent for appellees, and should not bind them. Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028; Teagarden v. Godley, 105 Tex. 616, 154 S. W. 973.

If this is not true, we think nevertheless the appellants came into the case in the district court to reduce the claim to judgment, preparatory to taking an assignment thereof, and that in the absénce of an allegation that they did not know of the postponement of the collection of the claim or of Martin’s misrepresentation as to the 'financial standing of the makers of the note, at the time suit was instituted on the note in Roberts county, we think they should be held to have elected to respond to the terms of the contract, and should be concluded by the judgment from going behind it. If it had refused to appoint an attorney to reduce the note to judgment, and refused to be bound by the contract because of the conduct of appel-lees and misrepresentations by Martin, in procuring the contract, they would be in a different situation; but, having affirmed the contract with knowledge of the facts by causing judgment to be entered, we think they should not set up such antecedent claims to defeat the contract.

We do not believe, the allegation in the answer, with reference to fraud, to be good on general exceptions, and for that reason the court properly struck it out.

AVe find no error in the action of the court, and the judgment will be affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. BARTEK.
    (No. 5457.)
    (Court of Civil Appeals of Texas. Austin.
    March 17, 1915.
    Rehearing Denied May 5, 1915.)
    1. Appeal and Error <@=>263 — Reservation of Grounds — Instructions.
    In the absence of an exception to the charge of the court when given, as required by Acts 33d Leg. c. 59, objections thereto will be considered on appeal as having been waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <@=3263.]
    2. Damages <@=>113 — Injury to Personalty —Measure op Damages.
    Where household goods, bedding, wearing apparel, farm implements, and tools have been in use for some time, an award of damages for their destruction through the carrier’s negligence based upon their original cost is erroneous.
    [Ed. Note. — For other cases, Cent. Dig. §§ 90, 91, 279, 280; 113.] see Damages, Dee. Dig. <@=>
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Jim Bartek against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Conditionally affirmed.
    Wilson, Dabney & King, of Houston, and Neff & Taylor, of Waco, for appellant. R. H. Kingsbury and E. J. Clark, both of Waco, for appellee.
   RICE, J.

On the 1st of December, 1913, appellee shipped over appellant’s road a car containing live stock, as well as his household and kitchen furniture, farming implements, corn and other produce, from Penelope, a station on said line, to Caldwell, Tex., which, after being wrecked en route, was destroyed by fire, and this suit is brought to recover the value of its contents. Appellant, after general and special denial of the negligence charged, defended chiefly on the ground that the cars were wrecked by an unprecedented rainfall upon its right of way and track, and that, as a direct and proximate result thereof, said train was wrecked and the car destroyed by fire. A jury trial resulted in a verdict and judgment in behalf of appellee in the sum of $1,516.65, from which this appeal is prosecuted.

The first assignment complains that the court erred in its definition of an act of God ; and the second that it erred in submitting special issue No. 5, in that it authorized a recovery not warranted by the pleadings or evidence, i. e., a recovery for the market, value, no market value having been alleged or proved; and, further, because the same was misleading and confusing. Appellee objects, however, to the consideration of both of these assignments, on the ground that neither of said charges was excepted to by appellant when given, as required by the Acts of the 33d Legislature, c. 59, p. 113. An examination of the record discloses that this objection is well taken, in that it shows that no exception was taken to the charge of the court. This being the condition of the record, we cannot consider said objections and they must be regarded as having been waived. See Floegge v. Meyer et al., 172 S. W. 194, and authorities there cited. See, also, Eldridge v. Citizens’ Ry. Co., 169 S. W. 375; Saunders v. Thut, 165 S. W. 553; Q. & P. Ry. Co. v. Galloway, 165 S. W. 546.

Appellant’s third assignment urges that the verdict is excessive, insisting by its proposition thereunder that the verdict was based upon the original cost of many of the articles included in the shipment, which were shown to have been secondhand and in use for a long time. AVe have carefully examined the record, and it discloses that nearly one-half of the property shown to have been destroyed consisted of wearing apparel, bedding, household and kitchen furniture, farming implements, a wagon, buggy, guns, carpenter tools, and other articles which had been in use for some time. The value placed thereon by the witnesses was what they paid for them when new. In the nature of things, property of this character must greatly depreciate in value by use, and, in the event of loss by the negligence of the railway company, its full value cannot be recovered.

We have concluded, therefore, that this assignment should be sustained, and if the appellee will file a remittitur of $250 within 10 days from this date, the judgment will be affirmed for the balance, to wit, $1,266.65. otherwise the judgment will be reversed, and the cause remanded for another trial.
      <J=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    COHEN v. STRANGE et al.
    (No. 5480.)
    (Court of Civil Appeals of Texas. Austin.
    April 21, 1915.)
    Injunction @=>188 — Costs—Successful Party — Dissolution of Injunction.
    Rev. St. art. 2035, provides that the successful party to a suit shall recover all costs expended or incurred. Article 2048 declares that the court may, for good cause to be stated in the record, adjudge the costs otherwise than as provided. Plaintiffs obtained a temporary injunction, which was modified on motion, and finally dissolved, judgment going for defendant. Held, that where the record showed no good cause, it was improper for the court to assess costs against defendant in the injunction suit up to the time of the motion on which the restraining order was modified.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 408; Dec. Dig. <S=>188.]
    Error from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by J. B. Strange and others against H. B. Cohen. There was a judgment for defendant, and, on plaintiff’s motion, costs were retaxed against defendant, who brings error.
    Reversed and rendered.
    W. L. Eason, of Waco, for plaintiff in error.
   JENKINS, J.

J. B. Strange, defendant in error, brought suit against plaintiff in error to enjoin him from building a barn and a mule lot on certain premises, and from maintaining a feed pen and mule lot thereon. He applied for and obtained a temporary restraining order. Upon motion this order was dissolved, in so far as it restrained plaintiff in error from erecting his barn and other improvements on said lot, but in so far as it restrained him from using the premises as a mule lot it was continued until the case should be finally tried. Upon final trial the court peremptorily instructed a verdict in favor of plaintiff in error, and adjudged all costs against defendant in error Strange and his bondsmen, H. G. Youngblood and J. L. Brown, defendants in error herein. Subsequently, Strange filed a motion to retax the costs, and the court taxed all costs up to the time the order was entered on the motion to dissolve against plaintiff in error. Plaintiff in error filed a motion to set aside said judgment, and to retax all costs against defendants in error, which motion was overruled, and plaintiff in error sued out a writ of error herein.

The statute provides that:

“The successful party to a suit shall recover of his adversary all the costs expended or incurred therein, except where it is or may be otherwise provided by law.” Article 2035, Rev. Stat.

Article 2048, Id., provides:

“The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided in the preceding articles of this chapter.”

No cause is stated in the order of the court taxing a part of the costs against plaintiff in error, and no good cause appears of record why it should have done so. The order upon the motion to dissolve shows that the restraining order, as issued, should not have been granted. The judgment upon final trial shows the suit should never have been brought.

The judgment of the trial court, as to the cost, is reversed, and here rendered in favor of plaintiff in error, that he have judgment against defendants in error for all costs incurred in the court below and the costs incurred on this appeal.

Reversed and rendered.
      iga^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    JONES v. GOUGH.
    (No. 5419.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 6, 1915.
    Rehearing Denied April 21, 1915.)
    1. Vendor and Purchaser @=>294 — Vendor’s Lien — Enforcement-Liability for Cost.
    J. sold land, receiving vendor’s lien notes in payment. The grantee conveyed to G. On nonpayment of the notes, J. instituted foreclosure proceedings. The decree directed the sheriff to apply the proceeds of the sale of the land to the payment of the judgment and the costs of the suit, and declared that J. should have and recover all costs against her grantee and G. Held, that the judgment did not give any priority to costs, and, where the proceeds of the sale were insufficient to satisfy the costs and the amount due, G. was liable for the costs; execution against his grantor having failed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dee. Dig. @=> 294.]
    2. Execution @=>172 — Injunction—Right to.
    Where plaintiff was liable for costs of a suit foreclosing vendor’s lien notes, he cannot, without having offered to satisfy the costs, enjoin execution, for injunction is granted only to a party not in default.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. <©=>172.]
    3. Judgment <©=>532 —Construction —Liability for Costs.
    Where a judgment provided that plaintiff should have and recover his costs against the defendants jointly and severally, a further direction that in case the land did not sell for enough to satisfy the judgment the sheriff should make the balance out of one of the defendants-under execution does not nullify the earlier provision.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 976, 977; Dec. Dig. <@=>532.]
    4. Vendor and Purchaser <©=>294 — Vendor’s Lien Notes — Costs.
    Where plaintiff promised his grantor to-pay vendor’s lien notes on the land, he was primarily liable, and, in a suit to foreclose the notes, costs might be awarded against him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dec. Dig. @=>- 294.]
    5. Vendor and Purchaser @=>294 — Enforcement of Vendor’s Lien — Liability for Costs.
    Plaintiff purchased land subject to vendor’s lien notes. Defendant, to avoid the expense of joining him, requested him to reconvey to her.

      Plaintiff refused, and was made a party. Held that, as he had orally agreed to discharge the notes, he was liable for costs, and could not, the land not haying sold for a sufficient amount to discharge the notes and costs, have execution enjoined.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dec. Dig. 294.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Suit by C. E. Gough against Mrs. R. E. Jones to restrain sale under execution. From a judgment for plaintiff, defendant appeals.
    Judgment reversed and rendered for defendant.
    Critz & Woodward, of Coleman, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.
   KEY, C. J.

This is an injunction suit, which resulted in a judgment in favor of the plaintiff, perpetuating a preliminary injunction preventing the sale of a tract of land under an execution. There is no statement of facts, and the case is submitted in this court upon the trial judge’s findings of fact, which, omitting descriptions of property, are as follows:

“Conclusions of Fact.
“(1) I find that the defendant herein, Mrs. R. E. Jones, filed in this court on the 20th day of October, 1913, her petition in cause No. 1657, styled Sirs. R. E. Jones, a Widow, v. H. J. Cobb et al., which petition is as follows, to wit:
“ ‘The State of Texas, County of Coleman.
“ ‘In District Court Coleman County, Texas, November Term, 1913.
“ ‘To the Hon. Jno. W. Goodwin,. Judge:
“ ‘Now comes Sirs. R. E. Jones a widow, residing in Coleman county, Texas, and hereinafter called plaintiff, and complaining of H. J. Cobb, a resident of Runnels county, Texas, and C. E. Gough, a resident of Ellis county, Texas, both of whom will hereinafter be called defendants, and for.cause of action plaintiff represents the following:
“ ‘First. That heretofore, to wit, on the 16th day of October, 1909, this plaintiff, Mrs. R. E. Jones, joined therein by E. C. Jones and wife, Lula Jones, Floyd S. Jones and wife, Mattie Jones, and W. L. Futch and wife, Hattie Futch, made, executed and delivered to the defendant H. J. Cobb their certain general warranty deed in writing, wherein and whereby they conveyed to the said H. J. Cobb the following described two tracts of land, lying and being situate in Coleman county, Texas, and described as follows: (Here follows description of said two tracts.)
“ ‘Second. That as a part of the consideration for the sale and conveyance of said lands to the said H. J. Cobb, the said H. J. Cobb made, executed and delivered his eight certain promissory vendor’s' lien notes, each dated of even date with said deed, and each for the principal sum of $415.62%, payable to the plaintiff herein, Mrs. R. E. Jones at Coleman, Texas, said notes and each of them drawing interest from date at eight per cent, per annum, interest payable annually and each note providing that a failure to pay any installment of interest when due shall, at the election of the holder thereof mature all of the notes given; said notes are made payable on or before October 16, 1917, at Coleman, Texas, and payable to the order of Mrs. R. E. Jones, and she is now the owner and holder of same, and the interest thereon for the year beginning the 16th day of October, 1912, and ending October 16, 1913, has not been paid and plaintiff herein has elected to declare all eight of the notes due as is provided in said notes, and she has placed the same in the hands of Critz & Woodward, attorneys at law, for suit and collection, and she has agreed to pay them the attorney’s fee as stipulated therein, to-wit, ten per cent, of the principal and interest thereon, and plaintiff alleges said sum to be reasonable.
“ ‘Third. Plaintiff further alleges that in said deed aforesaid, it is agreed that a vendor’s lien is retained against the above-described land and promises to secure the payment of said notes and all interest and attorney’s fees due thereon.
“ ‘Fourth. Plaintiff further alleges that the defendant C. E. Gough is now the owner and in the possession of the above-described lands and premises, he having purchased the same from the said H. J. Cobb and wife the 1st of October, 1912, and which said deed is of record in vol. 85, pages 56, 57, deed records of Coleman county, Texas, and this plaintiff alleges that said lands conveyed to the said, C. E. Gough as aforesaid are subject to the notes herein described, and it is so recited and stated in said deed to the said C. E. Gough aforesaid.
“ ‘Wherefore, the premises considered, plaintiff says that by the execution of said deed and said notes, and the failure to pay the interest when due thereon, makes the defendant H. J. Cobb liable to this plaintiff for the full amounts stipulated therein, and said lien is subject to be foreclosed against the said lands and premises by reason of the stipulations in said notes and in said deed aforesaid: •
“ ‘Wherefore plaintiff prays for a citation to issue to the defendants H. J. Cobb and C. E. Gough, and upon a hearing of this petition she be given a judgment against the said H. J. Cobb for the amount of her debt, principal, interest and attorney’s fees, and a foreclosure of her vendor’s lien against the lands herein described against both the said H. J. Cobb and the said C. E. Gouigh, and same be decreed to be sold according to law; that the sheriff or other officer executing said order of sale shall place the purchaser thereof in possession thereof, and for ajl other relief both general and special, as she may be entitled in law or equity, and for all costs of court.
“ ‘Critz & Woodward,
“ ‘Attorneys for the Plaintiff.’
“(2) That said petition is indorsed as follows: ‘Filed Oct. 20th, 1913. W. E. Gideon, Clerk District Court, Coleman County, Texas.’.
“(3) That all parties defendant in said petition and suit were duly and legally cited to the November term, 1913, of this court, to answer the same, by personal service of citation in the manner and form and for the length of time required by law in such cases, and that none of the defendants in said cause appeared therein or filed any answer therein.
“(4) That at the November term, 1913, on the call of the appearance docket of said court the plaintiff appeared in person, and by attorneys and upon the call of said cause announced ready for trial, in said cause No. 1657, and the same coming on for trial and the court, after hearing the evidence of plaintiff and due consideration of the same, rendered judgment in said cause No. 1657, which was duly entered upon the minutes of said court at said November term, 1913, in Book 9, pages 6 to 8 inclusive, which judgment is in words and figures as follows, to wit:
“ ‘Mrs. R. E. Jones, a Widow, v. H. J. Cobb et al. No. 1657.
“ ‘In District Court of Coleman County, Texas.
November Term, 1913.
“ ‘On this the 4th day of November, 1913, the same being at a regular term of this court, came on to be heard the above entitled and numbered cause for trial, and came the plaintiff in person and by her attorneys and announced ready for trial, and it appearing to the court that the' defendants H. J. Oobb and O. E. Gough have been duly and legally cited to appear as the law directs, but had not and did not answer to said suit, but wholly made default, and said cause proceeded to trial, and a jury was waived and all matters of fact and of law were submitted to the court.
“ ‘And the court, after hearing the pleadings and the evidence of plaintiff and the law and argument of counsel, is of the opinion the law and evidence are with the plaintiff Mrs. R. E. Jones, a widow, and she should recover as prayed for in her petition; and it being made to appear to the court from the evidence herein that plaintiff’s claim is based upon eight certain promissory vendor’s lien notes, executed by the •defendant H. J. Cobb payable to plaintiff Mrs. R.. E. Jones, said notes being for the principal sum of four hundred and fifteen dollars and sixty-two and one-half cents each, and bearing interest from date at the rate of eight per cent, per annum from date, and said notes each dated October 16, 1917, and it appearing to the court that the interest for the year 1913 has not been paid and plaiiitiff has elected to declare all notes due by reason thereof, as provided in said notes; and it appearing to the court that plaintiff had delivered said notes to Critz & Woodward, attorneys at law, for suit and suit had been by them instituted thereon and plaintiff having agreed to pay them the ten per cent, thereof as their fee, as provided in said notes, and it further appearing to the court that said eight notes are a vendor’s lien against the following described land and premises in Coleman county, Texas, to wit: (Here follows description.)
“ ‘And it further appearing to the court that defendant C. E. Gough is now the owner and in possession of the aforesaid premises, and that he purchased said land subject to the aforesaid notes, and that this plaintiff is entitled to a .judgment against said defendant C. E. Gough for a foreclosure of her lien as prayed for:
“ ‘It is therefore considered, ordered, and adjudged by the court that the plaintiff Mrs. R. E. .Jones, a widow, do have and recover of and from the defendant Jrí. J. Cobb the amount of her notes, principal, interest and attorney’s fee, to wit, the sum of $3,325.00, principal, $268.73-interest thereon, and the further sum or $359.37 attorney’s fees, total $3,953.12, for which she may have her judgment and a foreclosure of her vendor’s lien against the above-described land and premises against the said defendant H. J. Cobb and the defendant C. E. Gough, and that plaintiff do have and recover all costs of this suit against the defendants H. J. Cobb and C. E. Gough jointly and severally, for which execution may issue.
“ ‘It is the further order and judgment of the court that the vendor’s lien against said above-described property as it existed on the 4th day of November, 1913, be and the same is hereby foreclosed; that the clerk of this court issue an order of sale directed to the sheriff or any constable of Coleman county, commanding him to seize and sell said land as under execution; that he apply the proceeds thereof to the payment and satisfaction of the judgment herein rendered against the defendant H. J. Cobb and costs of suit, and, if said land sells for more than enough to satisfy said judgment herein rendered, then the officer shall pay the excess, if any, to the defendant C. E. Gough, and, in the event said lands do.not sell for enough to satisfy said judgment, then said officer shall make the balance out of the defendant H. J. Cobb as under execution. :
“■‘And it is further ordered that the sheriff or other officer shall place the purchaser thereof in possession of the aforesaid land and premises -within thirty days after date of sale thereof.
.“.‘And it is further ordered that said order of sale shall have the full force and effect of a writ of possession.’
“(5) That thereafter on the 5th day of December, 1913, an order of sale was duly issued on said judgment by the clerk of this court, and same was executed by the sheriff of Coleman county, Tex., by his levying on and seizing the property described in the petition of plaintiff and in said judgment said selling same under said order of sale, and that said land was sold on the 6th day of January, 1914, by said sheriff at the courthouse door of Goleman county, Tex., after being duly advertised as required by law, and was bid in by the plaintiff in said judgment Mrs. R. E. Jones for the sum of $3,953.
“(6) That said order of sale and the return of the sheriff, all of which and the statements and recitals in all of which are hereby adopted and found by me to be true and correct statements of the several matters of fact therein recited, are in words and figures as follows, to wit:
“ ‘The State, of Texas to the Sheriff or any Constable of Coleman County — Greeting:
“ ‘Whereas, on the fourth day of November, A. D. 1913, Mrs. R. E. Jones, a widow, recovered in the district court of Coleman county a judgment against H. J. Cobb and C. E. Gough, as follows: Against the said H. J. Cobb for the sum of three thousand, nine hundred, fifty-three dollars and twelve cents, and for all costs of suit; and for a foreclosure of a vendor’s lien; against said C. E. Gough for a foreclosure of a vendor’s lien and all costs of suit.
“ ‘And whereas, the said judgment is a foreclosure of a vendor’s lien on the following described property situated in Coleman county, Texas, to wit: (Follows description.)
“ ‘Therefore, you are hereby commanded that you proceed to seize and sell the above-described property as under execution, and make good and sufficient deed, and to place the purchaser of the same in possession thereof within thirty days after the day of sale, and you apply the proceeds thereof to the payment and satisfaction of said sum of three thousand, nine hundred and fifty-three and 12/100 dollars, together with the interest that may be due, and all costs of suit. And if the property shall sell for more than sufficient to pay off and satisfy said sums of money, then you are hereby directed to pay over the excess thereof to the defendant, C. E. Gough; but if you fail to find said property; or of (if) .the proceeds of such sale be insufficient to satisfy said judgment, then you are directed to make the money or any balance thereof remaining unpaid, out of any other property of defendant H. J. Cobb as in case of ordinary execution, and you are directed to make all costs out of the defendant H. J. Cobb and C. E. Gough, or either of them.
“ ‘Herein fail not, but due return make hereof within sixty days, showing how you have executed the same. .
“ ‘Given under my hand and the seal of the district court of Coleman county, Texas, this the 5th day of December, A. D. 1913.
‘“[L. S.] W. E, Gideon,
“ ‘Clerk District Court Goleman County, Texas.
“ ‘Bill of Costs.
Issuing two writs and two copies.-.$ 2 50
Issuing, two certified copies of petition $ 6 30
Docketing cause. 20
Filing one paper. 15
Entering appearing. 30
Swearing one witness., 10
Assessing damage.'. 50
Final judgment and excess. 2 80
Order of sale "and return. 1 50
Recording sheriff’s return on 2 citations 1 00
Taxing cost and copy. 25
Sheriff’s costs; serving two writs. 1 50
Total costs. $17 10
“ ‘The State of Texas, County of Coleman.
“ ‘I hereby certify the above to be a correct account of the costs in above entitled and numbered suit up to this date.
“ ‘Witness my hand and seal of said court, affixed at office in Coleman of- — , this 5th day of December, 1913. “ ‘Attest:
“ ‘[L. S.] W. E. Gideon,
“ ‘Clerk District Court Coleman County, Texas.’
“ ‘Sheriff’s Return on Sale of Real Estate.
“ ‘The State of Texas, County of Coleman.
“ ‘Came to hand 5th day of December, A. D. 1913, at 3 o’clock p. m., and executed at Coleman in Coleman county, Texas, on the 5th day of December, A. D. 1913, at 4 o’clock p. m. by levying upon the following described land, property of the defendant, and situated in Coleman county, Texas, viz.: (Here follows description.)
“ ‘And afterwards on the 12, 19, 26 days of December, A. D. 1913, advertised the same for sale at the court house door of Coleman county, on the 6th day of January, A. D. 1914, being the first Tuesday in said month, by an advertisement in the English language, published once a week for three consecutive weeks preceding such sale, the first publication appearing not less than twenty days immediately preceding the day of sale, beginning on the ——- day of -, A. D. 191 — , in the Santa Anna News, a newspaper published in the county of Coleman, stating in said advertisement the authority by virtue of which said sale was to be made, the time of levy, the time and place of sale, a brief description of the property to be sold, the number of acres, the original survey, its locality in the county and the name by which the land is generally known and also mailed to each of the within named defendants a copy of said notice of sale.
“ ‘And on said 6th day of January, A.. D. 1914, between the hours of 10 o’clock a. m. and 4 o’clock p. m. at the courthouse door of said county, in pursuance to said advertisement, sold said property at public sale to Mrs. R. E. Jones to whom the same was struck off for the sum of three thousand dollars, that being the highest secure bid for the same, and the said Mrs. R. E. Jones having paid the sum so bid by her, X executed to her a deed for said lands.
“ ‘And said sum of $3,953.00 was paid by me to plaintiff Mrs. R. E. Jones on her judgment^ whose receipt for the same is herewith presented' and this writ is hereby returned on this the 7th day of January, A. D. 1914, and leaving unpaid the costs, as shown below amounting to the sum of $113.60 and no other property of defendants found in Coleman county, Texas.
“ ‘W. L. Futch,
“ ‘Sheriff Coleman County, Texas.
‘“Sheriff’s Fees.
I-jevy .;. $ 1 00
Advertising . 1 00
Serving two notices. 2 Ó0
Commission . 82 06
Making one deed. 2 00
Executing writ of possession. 3 00
Return of writ. 50
Printers fees. 5 00
Total .‘. $ 96 50
Original court costs. 17 10
Total amount of costs. $113 60’
“(7) That thereafter, and after the return of said order of sale, the district clerk of this court, at the instance of said Mrs. R. E. Jones, issued on the 7th day of January, 1914, an execution against C. E. Gough for the costs on said cause No. 1657, that is, for the original court costs and all court costs incurred in issuing order of sale and all sheriff’s costs incident to said sale, including commissions on such sale and the return of said order of sale, a true statement of which said costs is shown below on the execution hereinafter set out; and on the 8th day of January, 1914, said execution was levied by said sheriff on the property of defendant C. E. Gough as stated in said execution below, and same was duly advertised for sale to be sold on the 3d day of March, 1914, which sale was restrained by temporary injunction issued by the judge of this court in chambers on the 2d day of March, 1914.
“(8) That said execution with the return thereon showing the action of the sheriff thereunder and a bill of costs in said cause, all of which is adopted by me as stating truly the facts and the several matters recited, and is as follows, to wit:
“ ‘To the Sheriff or Any Constable of Coleman County, Greeting:
“ ‘Whereas, at the November term of the honorable district court of Coleman county, Texas, on the 4th day of November, A. D. 1913, Mrs. R. E. Jones, a widow, plaintiff, recovered a judgment against H. J. Cobb and C. E. Gough, as follows: Against H. J. Cobb, $3,953.12 and foreclosure of vendor’s lien, and against C. E. Gough. all costs of suit and foreclosure of vendor’s lien; and where, as an order of sale was issued to Coleman county, on the 5th day of December, 1913, and returned indorsed as follows:
“ ‘The State of Texas, County of Coleman.
“ ‘Came to hand on the 5th day of December, A. D. 1913, at 3 o’clock p. m. and executed at Coleman in Coleman county, Texas, on the 5th day of December, A. D. 1913, at 4 o’clock p. m., by levying upon the following described land, property of the defendant, and situated in Coleman county, Texas, viz.: (Here follows description.)
“ ‘And afterwards on the 12, 19, 26 days of December, A. D. 1913, advertised the same for sale at the courthouse door of Coleman county, on the 6th day of January, A. D. 1914, beinlg the first Tuesday of said month (by an advertisement in the English language, published once a week for three consecutive weeks preceding such sale, the first publication appearing not less than twenty days immediately preceding the day of sale, beginning on the - day of --, A. D. 191 — , in the Santa Anna News, a newspaper published in the county of Coleman, stating in said advertisement the authority by virtue of which said sale was to be made, the time of levy, the time and place of sale, a brief description of the property to be sold, the number of acres, the original survey, its locality in the county, and the name by which the land is generally known) and also mailed to each of the within named defendants a copy of said notice of sale.
“‘And on said 6th day of January, A. D. 1914, between the hours of ten o’clock a. m. and 4 o’clock p. m. at the courthouse door of said county in pursuance to said advertisement, sold said property at public sale to Mrs. R. E. Jones to whom the same was struck off for the sum of $3,953.00 that being the highest secure bid for same; and the said Mrs. R. E. Jones having paid the sum so bid by her, I executed to her a deed for said lands.
“ ‘And said sum of $3,953 was paid to plaintiff Mrs. R. E. Jones on judgment whose receipt for same is herewith presented, and this writ is hereby returned, on this the 7th day of January, A. D. 1914; and leaving unpaid the costs as hereinbelow, amounting to the sum of $113.60, and no other property of defendant found in Coleman county, Texas.
“ ‘W. D. Futch,
- “ ‘Sheriff Coleman County, Texas.
“ ‘Now therefore, you are hereby commanded, that of the goods and chattels, lands and tenements of the said C. E. Gough defendant, you make or cause to be made the sum of one hundred and fourteen dollars and eighty-five cents, by way of costs, together with your legal fees and commission for collecting same.
“ ‘Herein fail not to make due execution and return of writ on or before the 90 days from this January 7th, A. D. 1914.
“ ‘Attest:
“‘[B. S.] W. E. Gideon,
“ ‘Clerk District Court,
“ ‘Coleman County, Texas.
“ ‘Given under my hand and seal of the district court at office in Coleman, Texas, this the 17th day of January, 1914.
“‘W. E. Gideon,
“ ‘Clerk District Court,
“ ‘Coleman County, Texas.
“ ‘Bill of Costs.
Filing petition. 15
Docketing cause. 20
Issuing two citations and two' copies.. 2 50
Issuing two certified copies of petition 6 30
Entering appearance. 30
Swearing one witness. 10
Assessing damage. 50
Final judgment. 2 80
Taxing costs and copy. 25
Order of sale and return. 1 50
Execution and return. 1 25
Recording two sheriffs return on citations . 1 00
Sheriff’s costs. 98 00
Total costs. $114 85
■“ ‘The State of Texas, County of Coleman.
“ ‘Came to hand the 8th day of January, A. D. 1914, at 3 o’clock p. m., and executed at Coleman in Coleman county, Texas, on the 8th day of January, A. D. 1914, at 3 ilO1 o’clock p. in. by levying upon the following described land, property of the defendant C. E. Gough and situated in Coleman county, Texas, viz.:
“ ‘All that certain lot or parcel of land situated in the town of Valera, Coleman county, Texas, being block No. five (5) as per map plan of said town, recorded in the deed records of said county in vol. 55, pages 62 & 62 (63) ; same being the land conveyed by J. O. Brown and wife Bela Brown by deed dated November 4, 1912, of record in said deed records vol. 78, page 89, hereby referred to for a further description of said property.
“ ‘And afterwards advertised the same for sale at the courthouse door of Coleman county, on the 3d day of Márch, A. D. 1914, being the first Tuesday of said month (by an advertisement in the English language, published once a week for three consecutive weeks preceding such sale, the first publication appearing not less than twenty days immediately preceding the day of sale, being on the 30 th day of January, 1914, and published also on the 6, 13 and 20th days of February, A. D. 1914, in the Democrat Voice, a newspaper published in the county of Coleman, stating in' said advertisement the authority by virtue of which said sale was to be made, the time of levy, the time and place of sale, a brief description of the property to be sold, the number of acres, the original survey, its locality in the county, and the name by which the land is generally known); and also mailed to each of the within named defendants a copy of said notice of sale; and also did not mail a copy of said notice of sale to defendant’s attorney of record in said cause, none of the defendants having any attorney in said cause.
“ ‘And was restrained by injunction from selling said lands.
“ ‘W. L. Futch,
“ ‘Sheriff Coleman County, Texas.
“‘Sheriff’s Fees.
Bevy . $1 00
Advertising . 1 00
Serving two notices. 2 00
Printer’s fees. 5 00
Total costs $9 00’
“(9) That on the 2d day of March, 1914, plaintiff in this cause, C. E. Gough, presented to me, as judge of the Thirty-Fifth judicial district of Texas, his petition for injunction, which petition is on file in this cause filed herein on the 2d day of March, 1914, and upon consideration of same a temporary injunction was granted as shown by order indorsed on said petition, which is hereby referred to and made a part of this finding of fact.
“(10) And in pursuance to said order, after bond had been executed as required by said order and approved by said clerk, writs of injunction were issued by the clerk of this court and' duly served on the defendants in this cause on the 2d day of March, 1914, restraining the sale of said premises _ which were advertised to be sold under said 'execution .on the 3d day of March, 1914; and in obedience to said order, myself, as judge of this court and injunction issued thereon, the said sheriff, W. L. Futch, desisted from any further action under said execution, and did not make said sale as advertised, and returned said execution into court, without 'making said sale; and, but that for said injunction so issued and served, said sale would have been made by said W. B. Futch under sand execution.
“(11) That on the 16th day of October, 1909, by general warranty deed of that date of record in Coleman county deed records, vol. 67, p. 627, Mrs. R. E. Jones, joined by E. G. Jones and wife, Buna Jones, Floyd S. Jones and wife, Mattie E. Jones, W. B. Futch and wife, Hattie Futch, conveyed to H. J. Oobb the lands described in the petition of plaintiff in cause No. 1657, which conveyance was upon and for the consideration, among other things, of the notes sued on in said cause No. 1657 and as therein described, which notes are fully described in said deed, and in_ said deed was reserved the vendor’s lien on said land to secure the payment of said notes, said deed was filed for record on the 3d day of January, 1910.
“(12) That on the 12th day of October, 1912, by general warranty deed of that date of record in Coleman county, deed records, vol. 85, p. 56, the said H. J. Oobb and wife, Mary O. Oobb, conveyed said land described in said petition of plaintiff in said cause No. 1657 To O. E. Gough, and thát said conveyance to said O. E. Gough was for the following consideration, as stated in said deed, to wit: ‘For and in consideration of the sum of four thousand eight hundred ($4,-800) dollars to us paid and agreed to be paid by O. E. Gough as follows, one thousand four hundred and seventy-five ($1,475) dollars cash in hand paid, the receipt of which is hereby acknowledged, and the further consideration of said O. E. Gough takes said land subject to eight certain vendor’s lien notes each for the sum of $415.62:}4 each, and each of said notes due on or before 8 years from date of October 16, 1909, each of said notes bearing interest at 8 per cent., interest payable annually and each note providing for ten per cent, additional attorney’s fees if placed in the hands of an attorney for collection, said notes executed by H. J. Oobb and payable to H. E. Jones or order.’ That in said deed was retained the vendor’s lien on said land to secure said notes. That same were the notes sued on in said cause No. 1657 and described in the deed above mentioned of date October 16, 1909. Said deed to O. E. Gough was filed for record October 12, 1912.
“(13) That said O. E. Gough never made any offer to redeed the property in controversy in said cause No. 1657 to Mrs. R. E. Jones, except that the offer to redeed the same and release his claim thereto upon condition of the payment by Mrs. R. E. Jones to him of the sum of $350, which offer was never accepted by Mrs. Jones. That the above proposition of said O. E. Gough was made before suit filed and was made in reply to a letter of Walter Woodward, attorney for and then representing Mrs. R. E. Jones, in which it was requested that he release the property, in order that the title to the same might be reinvested in Mrs. Jones ■without the necessity of the expense of a suit; Mrs. Jones agreeing to cancel said eight notes in case the property were reconveyed to her by Gough.
“(14) That there were three bids on said property sold on order of sale January 6, 1914, as follows: First, $1,000 bid by E. M. Critz, attorney for plaintiff, which bid was made for the plaintiff in said cause R. E. Jones. Second, $1,500 bid by Harry Thompson. Third, the . sum of $3,952 bid by said E. M. Critz, attorney for plaintiff.
“(15) That there was no conspiracy or consultation between said B. M. Critz or any other person and the sheriff at said sale; but that the said E. M. Critz immediately before the last bid stepped up to the sheriff making said sale and asked him what was the amount of said judgment in favor of Mrs. R. E. Jones, and, upon being advised of the amount, stepped back into the crowd attending the sale and bid the sum of $3,953, at which price the property, was knocked down to Mrs. Jones.
“(16) That said C. E. Gough has never parted with said property so conveyed to him by said H. J. Cobb and wife, and was at the time of the institution of said suit No. 1G57, and at the time of said sale, the owner of said property subject to the lien securing the notes of Mrs. R. E. Jones sued on, and was therefore a necessary and proper party to said suit.
“(17) That said C. E. Gough was at the time of the levy of said writ of execution on January 8, 1914, the owner of said property so levied on.
“(18) That demand had been made of C. E. Gough to pay the costs in said cause No. 1657, and he had refused to pay the same.”

Opinion.

The trial court held, as conclusion of law, that, when the sheriff received the proceeds of the sale of the land under the order of sale issued upon the foreclosure judgment, he should have applied such proceeds, first, to the payment of costs, and, second, to the payment of the plaintiff’s debt, and that therefore the costs would be considered as having been paid; and, having been so paid, the clerk had no authority to issue the execution the enforcement of which was enjoined by the judgment appealed from. Counsel for appellant assail the correctness of these conclusions of law, while counsel for appellee defend them; and the contentions so urged embrace the questions presented to this court for decision.

In arriving at a proper disposition of the case, the first and most important thing to do is to construe and' determine the legal effect of the judgment rendered in cause No. 1657, wherein appellant, Mrs. Jones, was plaintiff and H. J. Cobb and appellee C. E. Gough were defendants; and in so doing it is important to keep in mind the distinction between what the court in that case ought to have done, or had the power to do, and what actually was done. It may be conceded that the court might properly have decreed that the costs constituted . a prior lien against the property upon which the plaintiff’s lien was foreclosed, and might have directed the officer who made the sale of that property to apply the proceeds, first to the payment of the costs, but that was not done. On the contrary, the decree directs the officer referred to “to apply the proceeds thereof to the payment and satisfaction of the judgment herein rendered against the defendant IT. J.' Cobb and the costs of suit.” The language quoted does not give any preference or priority to the costs, but places the judgment for the plaintiff for the amount of her debt and the costs of the suit upon a parity. Under that adjudication as to the application of the proceeds of the sale, the sheriff may have had the right to prorate the proceeds between the amount awarded to the plaintiff for her debt and the costs of the suit; but he had no right to apply a sufficient amount to pay the costs, because the property did not sell for enough to pay both the debt and costs. This being the case, the entire amount of the costs had not been paid at the time the second execution was issued, and therefore, without tendering payment of the amount of the costs still due, Gough was not entitled to relief by injunction against the enforcement of the execution. “Injunction" is an) equitable relief, which is not granted as a matter of absolute, right, and is granted only when the party seeking that remedy shows that he is not in default; or, as it is sometimes said, comes into court with clean hands. That doctrine is illustrated by many cases not necessary to be here cited, in which it has been sought to enjoin the collection of taxes, and the courts have held that, if the complainant owes any portion of the taxes sought to be enjoined, he must tender payment of the amount he owes before he can obtain injunctive relief as to the balance. That course was not pursued in this case, and. for that reason, if for no other, the trial court committed an error when it decided that appellee Gough was entitled to enjoin the enforcement of the execution issued against him.

Counsel for appellant makes the further contention that, even though the sheriff may have had the right to retain all the costs out of the proceeds of the sale of the property, yet if he had done so Mrs. Jones, the plaintiff in that case, would have been subrogated to the rights of the officers and entitled to an execution against Gough for the amount so retained by the sheriff to cover the costs. In other words, the contention is that as Mrs. Jones, the plaintiff in that case, had a lien upon the property that inasmuch as she was compelled to sue Gough in order to enforce her lien and perfect the title to the property, as between her and Gough equity would compel him to pay the costs of the suit, if the property did not sell for enough to pay both the debt and costs. There is much force in that argument, and it may be that the court intended to protect Mrs. Jones in that respect when it embodied in the decree the stipulation “that plaintiff do have and recover all costs of this suit against the defendants IT. J. Cobb and C. E. Gough, jointly and ’severally, for which execution may issue.” We note the contention of counsel for appellee that the stipulation following after the one just quoted, and reading, “In the event said lands do not sell for enough to satisfy said judgment, then said officer shall make the balance out of defendant H. J. Cobh as under execution,” evidences the intention of the court not to render any judgment against Gough, even for costs, unless the property to.be sold under foreclosure should not sell for enough to pay the costs. We are unable to sanction that contention, because the court in very clear and specific terms rendered judgment against Cobb and Gough jointly and severally for the costs of that suit, and we do not think it can properly be held that that portion of the decree is nullified by any other portion.

Aside from what has already been said, and considering the case in a broader aspect, it would seem that in equity and good conscience Gough ought to pay the costs for which the execution was issued against him. The findings ' of the court show that Mrs. Jones attempted to avoid the necessity and expense of joining him in the foreclosure suit by requesting him to deed the land back to her, and that he refused to do so, unless she would pay him the sum of $350. Furthermore, according to the recitals in the deed under which Gough held the land, it would seem that he had by implication, at least, promised Cobb and wife, the grantors in the deed, to pay the notes which were sued upon by Mrs. Jones in the former suit; and, while, no personal judgment was sought against him upon the notes, nevertheless, if he had promised to pay them he could have been held liable upon them, which would have made him primarily liable, both in law and equity for the costs. Spann v. Cochran & Ewing, 63 Tex. 240; Fisher v. Hemming, 164 S. W. 913. And for this reason, whatever ambiguity there may be in the judgment under consideration in regard to the costs, such ambiguity ought to be resolved in favor of Mrs. Jones and against Gough. We think the most favorable construction in favor of Gough that can be placed upon the judgment is that it fixed his liability for the costs as secondary to the liability of his codefendant Cobb and the property upon which the lien was foreclosed; and if it be given that construction, when the costs could not be collected from the sources 'of primary liability, it was proper to issue execution against Gough. The facts show that the property did not sell for enough to pay both the debt and costs, and that the sheriff failed to find any other property belonging to Cobb out of which to make the residue; and upon this state of facts we hold that the clerk was authorized to issue the execution against Gough. Of course, this latter conclusion is not sound if counsel for appellee are correct in their contention that, when the sheriff received the proceeds of the sale of the property, the costs were then paid. But we do not regard that contention as sound, because the judgment did not fix the costs as a prior charge against the proceeds of the sale; and it cannot be successfully contended that it did more in that regard than to place the costs on an equal footing with the debt, and entitled to a pro rata share of the proceeds of the sale; and this would leave a portion of the costs unpaid.

Our conclusion is that the judgment should be reversed and here rendered for appellant, and it is so ordered.

Reversed and rendered.
      <§n^>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    FT. WORTH PUB. CO. v. ARMSTRONG.
    (No. 5527.)
    (Court of Civil Appeals of Texas. Austin.
    April 21, 1915.)
    Appeal and Error <&wkey;568 — Statement op Facts — Preparation.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1924, declares that on appeal the official shorthand reporter shall transcribe the testimony and other proceedings, the charge being paid by the party ordering the transcript and taxed as costs. Section 2070 declares that upon the filing- of the reporter’s transcript with the clerk of the court the party appealing shall prepare a statement of facts. Article 2072 declares that those articles providing for the appointment of court stenographers and prescribing their duties shall not prevent parties from preparing statement of facts independent of the notes of the official reporter, held, that an appellant might, without having the reporter prepare the transcript, prepare a statement of facts which, when approved by the trial judge, will be considered, though the appellee did not agree thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2523-2529; Dec. Dig. 508.]
    Appeal from District Court, Coleman County ; Jno. W. Goodwin, Judge.
    Action between the Ft. Worth Publishing Company and Theodore Armstrong. There was a judgment for the latter, and the former appeals. On motion to strike out statement of facts.
    Motion denied.
    Critz & Woodward and Snodgrass, Dibrell & Snodgrass, all of Coleman, for the motion. Woodward & Baker, of Coleman, Sidney L. Samuels, of Ft. Worth, and P. W. Brown, of Palestine, opposed.
   KEY, C. J.

In- this case appellee has filed a motion to strike out the statement of facts, for the alleged reason that it was not prepared in the manner required by the statute. It is not an agreed statement of facts, but is accompanied by a certificate of the presiding judge, certifying that:

The parties “having failed to agree upon a statement of facts, and defendant having presented a statement of facts to me, and plaintiff having failed to present a statement of the facts in said cause, from the statement presented and my knowledge of the facts in said cause, I have prepared the foregoing statement of the facts therein, which I certify to be a full, fair, and correct statement of the facts in said cause.”

The motion to strike out, which is supported by ex parte affidavits of two of ap-pellee’s attorneys and of the clerk of the court below, alleges, in substance, that an official stenographer was present when the case was tried, and took full shorthand notes of all the oral testimony with all the objections to its admissibility, rulings and remarks of the court therein, and all exceptions to such rulings, and had such notes in his possession at the time the statement of facts was made; that he has never transcribed the testimony and other proceedings recorded by him in the form of questions and answers, etc., and hqs never been requested or demanded so to do by appellant or by any one representing it;, that the statement of facts filed in this court was not prepared, nor caused to be prepared, from any such transcript as that referred to in article 1924 of the Revised Civil Statutes, but was prepared by the official stenographer at the request of appellant and its attorneys directly from his shorthand notes taken by him as aforesaid and from the depositions and other written evidence introduced upon the trial; that said statement of facts so filed in this court, together with a duplicate thereof, and a duplicate of the certificate of the trial judge were filed with the clerk of the court below, and that they constitute the only statement of facts ever filed or offered for filing in this cause, and that neither appellee, nor any one representing him, ever signed or agreed to such statement of facts, nor in any manner waived the preparation and filing of a transcript of the notes of the official shorthand reporter, and that no such transcript has ever been furnished to appel-lee or his attorneys.

Counsel for appellant have filed a reply to the motion, which does not controvert the facts alleged by appellee; and upon this state of facts, counsel for appellee insists that the statement of facts should be stricken out, and in support of their contention cite Vernon’s Sayles’ Civ. Stats, arts. 1924 and 2070, and G., C. & S. F. Ry. Co. v. Prazak, 170 S. W. 859, and Buffalo Bayou Co. v. Lorentz, 170 S. W. 1052.

Articles 1924,. 2070, and 2072, of Vernon’s Sayles’ Revised Statutes read as follows:

“Art. 1924. Same Subject; Preparation of Transcript; Compensation. In case an appeal is perfected from the judgment rendered in any case, the official shorthand reporter shall transcribe the testimony and other proceedings recorded by him in said case in the form of questions and answers, certifying that such transcript is true and correct, and shall file the same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court. Said transcript shall be made in duplicate; for which said transcript the official shorthand reporter shall be paid the sum of fifteen cents per folio ofl one hundred words for the original copy and no charge shall be made for the duplicate copy, said transcript to be paid for by the party ordering the same on delivery, and the amount so paid shall be taxed as costs. (Rev. Oiv. St. 1911, art. 1924, superseded Acts 1911, p. 264, § 5.) ’
“Art. 2070. Statement of Pacts Prepared from Transcript of Official Reporter, When and How, etc.; In Duplicate; Original Sent up; Reporter to Prepare on Request, etc.; Fees. Upon the filing in the office of the clerk of the court by the official shorthand reporter of his transcript as provided in section 5 of this act (art. 1924), the- party appealing shall prepare br cause to be prepared from the transcript filed by the official shorthand reporter, as provided in section 5 of this act, a statement of facts, in duplicate, which shall consist of the evidence adduced upon the trial, both oral and by deposition, stated in succinct manner and without unnecessary repetition, together with copies of such documents, sketches, maps and other matters as were used in evidence. It shall not be necessary to copy said statement of facts in the transcript of the clerk, on appeal, but the same shall, when agreed to by the parties and approved by the judge, or in the event of a failure of the parties to agree and a statement of facts is prepared and certified by the judge trying the case be filed in duplicate with the clerk of the court, and the original thereof shall be sent up as a part of the record in the cause on appeal. Provided, however, that the official shorthand reporter shall, when requested by the party appealing, prepare from the transcript filed by the official shorthand reporter, as provided in section 5 of this act, a statement of facts in narrative form, in duplicate, and deliver the same to the party appealing, for which said statement of facts he shall be paid by the party appealing the sum of fifteen cents per folio of 100 words for the original copy, and no charge should be made for the duplicate copy, and such amount shall not be taxed as costs in the ease. (Acts 1907, 1 S. S. p. 509, § 5; Acts 1905, p. 219, § 5; Acts 1903, p. 84; Acts 1909, S. S. p. 374, § 6; Acts 1911, p. 264, § 6.)”
“Art. 2072. Laws Repealed; Not to Prevent Preparation of Statements of Pact by Parties. That chapter 39, page 374, Acts of the First Called Session of the Thirty-First Legislature of the state of Texas, providing for the appointment of court stenographers, prescribing their duties and regulating their charges and compensation, and all other laws or parts of laws in conflict with this act be, and the same are hereby expressly repealed; provided, however, that nothing in this act (arts. 1920-1928, 1932, 1933, 2070, 2071, 2073) shall be so construed as to prevent parties from preparing statements of facts on appeal independent of the transcript of the notes of the official shorthand reporter. (Acts 1911, p. 264, § 13.)”

Those articles were construed by the Court of Civil Appeals for the First District in the two cases above cited, and in the latter case (Buffalo Bayou Co. v. Lorentz, 170 S. W. 1052), it was held that the provision of article 2072, which declares that “nothing in this act shall be so construed as to prevent parties from preparing statements of facts on appeal independent of the transcript of the notes of the official shorthand reporter,” applies only to agreed statements of facts, and has no application to an ex parte statement of facts prepared by the appellant and presented to his adversary and the trial judge for approval. We are unable to concur in that construction of the language referred to. The plural number is often used in framing statutes, as well as other written instruments, when the intention is that any number of tlie class referred to may have the benefit intended to he conferred, and we see no reason why this statute should he given a more restricted interpretation. In the final title of our revised statutes it is, iu effect, declared that all statutory law shall be liberally construed with the view of accomplishing the legislative intent and promoting the ends of justice. In the first place, it is by no means certain that in enacting article 1924 the Legislature intended to make it compulsory that the stenographer should transcribe his notes and file the same with the clerk, because, while the first part of it seems to so declare, the latter part of it prescribes that the transcript so made shall be paid for by the party ordering the same, which indicates that it was not intended to require the stenographer to make the transcript unless it was ordered by one of the parties to the suit; and nowhere in the statute is an appellant or appellee expressly required to demand the making of such transcript. But even if it be conceded that previous articles do so require, we think it was the intention of article 2072 to limit and restrict such articles of the statute, so as to authorize both or either of the parties to the litigation to act independently of the stenographer’s transcript in the preparation of a statement of facts; which right, in so far as adverse litigants are concerned, includes the right not to demand the making of a transcript by the stenographer. Whether or not, when no transcript has been demanded, the stenographer would have the right to make one and claim his fee therefor, is a question that need not be decided, as it does not arise in this case. Attention is called to the fact that the language used by the Legislature is not “the parties,” but the article “the” is omitted, and the statute reads, “Nothing in this act shall be so construed as to prevent parties,” etc.; and, while the omission referred to may not be of great importance, yet, in our view, it tends somewhat to indicate the legislative purpose to accord the benefits conferred by that article to any one who might be a party to the particular litigation. But our interpretation of the statute finds support in another and stronger reason, and that is, the fact that it makes the law deal fairly with the respective parties, whereas, the construction adopted by the Court of Civil Appeals for the First District might, in many instances, impose a great hardship upon an appellant who desired to avail himself of its benefits, while it might in all such cases result beneficially to an appellee, as the following analysis of its practical application will demonstrate: For instance, it is the appellant and not the ap-pellee who desires a statement of facts in order to get the full benefit of his appeal, and, therefore, if he cannot obtain the benefit of article 2072 without the consent of the ap-pellee, then he is placed at the mercy of his adversary, and the time and labor he may expend in preparing a statement of facts without having a stenographer prepare a transcript of the testimony may be wasted and go for naught by the appellee’s refusal to consent to that statement of facts, and then when, in some instances, it may be too late, he will be required to begin over by demanding that the stenographer prepare a transcript in order that he may present another statement of facts for approval. It is not believed that it was the intention of the Legislature that the right conferred by article 2072 was to be contingent upon the consent of that party to the litigation to whose interest it would be to withhold consent in order that no statement of facts should be carried ,up on appeal. Such a construction renders that article almost, if not entirely, barren of practical benefit.

Counsel for appellant present the contention that this court is without power to go behind the certificate of the trial judge and hear evidence, by affidavit or otherwise, and determine whether or not the statement of facts presented by appellant to the trial judge was prepared in the manner required by law; and in support of that contention they cite. Davis v. James, 5 Tex. 389; Boggess v. Harris, 90 Tex. 476, 39 S. W. 565; Willis v. Smith, 90 Tex. 635, 40 S. W. 401; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946 ; City of Brenham v. Rankin, 70 S. W. 321; Johnson v. Arrendale, 71 S. W. 44; Von Boeckhann v. Loepp, 73 S. W. 849; Bath v. H. & T. C. Ry. Co., 34 Tex. Civ. App. 516, 78 S. W. 994; Hamilton v. Saunders, 37 Tex. Civ. App. 141, 84 S. W. 253; Western Union v. Christensen, 78 S. W. 744; Walker & Son v. Allen, 95 S. W. 585; Wilson v. Tyler Coffin Co., 79 S. W. 327; Applehaum v. Bass, 113 S. W. 173; Rush v. Thompson, 113 S. W. 546; Kimbell v. Powell, 57 Tex. Civ. App. 57, 121 S. W. 541; Natl. Bank of Commerce v. Lone Star Milling Co., 152 S. W. 663; Security T. & L. Ins. Co. v. Stuart, 160 S. W. 110; Eaton v. Klein, 174 S. W. 331. There is much force in that contention which the authorities referred to tend more or less to support. But if it is not tenable, and if it is permissible for this court to consider the facts shown by appellee’s motion, nevertheless, and for the reasons hereinbefore stated, we are of opih-ion that the motion should be overruled, and it is so ordered.

Motion overruled.
      <@us>For other oases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes