text:
    HOECHTEN v. STANDARD HOME CO.
    (Court of Civil Appeals of Texas. San Antonio.
    May 21, 1913.
    Rehearing Denied June 18, 1913.)
    1. Pleading (§ 205*) — Demurrer—Grounds.
    Every reasonable intendment will be indulged in favor of a pleading to which a general demurrer is urged; and the only question which will be considered is whether any cause of action or ground of defense is disclosed by the pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dee. Dig. § 205.*]

      2. Pleading (§ 205*) — General Demurrer— Damages from Fraud.
    A complaint, alleging that plaintiff, having to meet a money obligation, informed defendant company that his only reason for buying a .contract from it was for the purpose of securing money to extend a loan and that defendant assured him that at„ the expiration of six months he would get the money covered by the contracts which he signed, and that relying on such representations he signed an application for such contract; that he was deceived as to their contents and was refused the money and forced to sell his property at a loss — was good as against a general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §| 491-493, 495, 496, 498-510'; Dec. Dig. §■ 205.*]
    Appeal from District Court, Bexar County; Claude V. Birkhead, Judge.
    Action by Fred Hoeckten against the Standard Home Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Douglas Cater, of San Antonio, for appellant. Israel Dreeben, of Dallas, and Carlos Bee, of San Antonio, for appellee.
   FLY, C. J.

Appellant sued on an oral contract entered into between him and an agent of appellee whereby, in consideration of certain payments each month for six months, he was to have the right to borrow $5,000 from appellee, that the agent was informed by appellant that he owed money on certain property in San Antonio which would become due and payable in six months, that he desired to borrow money to pay off the indebtedness, and further alleged: “That the plaintiff herein then informed said agents that he owed money on a certain property in the city of San Antonio, Tex., and that the indebtedness due on such property would become due and payable in about six month's and that he, plaintiff herein, would have to be able to pay such indebtedness when it became due, or in the meantime make an effort to sell other property that he had to satisfy such indebtedness, or to make a loan on such property to take up the indebtedness then existing against it. That the property upon which he owed money is and was located at No. 227 Florida street in the city of San Antonio, Bexar county, Tex. This plaintiff further informed the said agents of defendant: That his only reason and object in buying the contract from this defendant company was for the purpose of securing money to extend the loan when it became due on such property located at No. 227 Florida street, and that if he did buy such contracts that he would depend upon the defendant company to make a loan to him within the time as represented by said agents, and, in the event such money was not loaned to him by the defendant company at the expiration of six months, that he would have to sell other property he owned for what he could get for it so as to take up such loan, or money due on said property at No.- 227 Florida street. That thereupon said agents of the defendant herein informed this plaintiff that the object of the company that they represented was to provide for just such conditions as he (the plaintiff) was then in, and assured him that he need not further worry about securing the necessary money to pay off the indebtedness •on the above-named property, if plaintiff would sign the application such agents then presented him, and that they (the agents) would assure him that he would get the money covered by such contracts at the expiration of six months without fail. That thereupon the agent, Newman, presented to this plaintiff an application for the purchase of five contracts, stating to this plaintiff that such application was for contracts in accordance with the terms as represented to this plaintiff, and hereinbefore detailed. That this plaintiff, relying upon the honesty, representations, and integrity of the agent, Newman, signed such application without reading same.” It was alleged that appellant was deceived as to the contents and was refused the money and could not borrow the money to pay his indebtedness and, being forced to sell property to raise the money, was compelled to sacrifice it and lose $500. He sued for $282, the money paid to appellee, and $500 damages.

The rule is firmly established that every reasonable intendment will be indulged in favor of a pleading to which a- general demurrer is urged and the only question which will be considered in such cases is whether any cause of action or ground of defense is disclosed by the pleading.

If it be true that appellant, through the fraud of appellee, as alleged, was compelled to sacrifice his property and thereby lose $500, then he should recover that sum as well as the $282 paid to appellee for which nothing was received by him. The petition was doubtless open to attack through special exceptions; but, no matter how imperfect, we think it stated a cause of action, and the general demurrer should not have been sustained.

The judgment will be reversed, and the cause remanded.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    NEAL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Criminal Law (§ 507) — Accomplice — Purchaser oe Liquor unlawfully Sold.
    Under Pen. Code 1911, art. 602, expressly declaring that the purchaser of intoxicating liquor sold in violation of law is not an accomplice, it was not error for the court to refuse either to charge that such a purchaser was an accomplice, or to submit that question to the jury.
    TEd. Note. — For other- cases Law, Cent. Dig. §§ 1082-1096 507.] see Criminal Dec. Dig. §

      2. Ceiminál Law (§§ 763, 764) — Trial—Instructions — Weight of Evidence.
    In a prosecution for the illegal sale of intoxicating liquors, where the prosecuting witness testified that he paid for it with a marked bill subsequently found on the defendant’s person, and the latter claimed that he had changed the bill for the witness, it was not error for the court, in the absence of a request, not to charge as to the possession of the bill, since such a charge would have been upon the weight of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Giles Neal was convicted of illegally selling intoxicating liquors, and he appeals.
    Affirmed.
    Graham & Smitha, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

Appellant was convicted for illegally selling intoxicating liquors in Bowie county after prohibition had been properly carried and put in force therein. The election was shown to have been held and prohibition put in force in 1910. The illegal sale was alleged to have been made on January 14, 1913. The appellant was convicted and his penalty fixed at two years in the penitentiary. The evidence is amply sufficient to clearly establish appellant’s guilt.

One contention by appellant is that Charlie Williams, to whom the illegal sale was charged to have been made, and who testified to the purchase of intoxicating liquor from appellant, was an accomplice, and the court erred in not so -charging. Our statute (P. C. art. 602) expressly enacts that such purchaser shall not be an accomplice. The decisions, and there are a large number of them, follow the statute, and expressly so hold. The court did not err in not charging that the purchaser, Williams, was an accomplice, or submitting to the jury whether or not he was.

The evidence by the state was that after Williams, the prosecuting witness, saw appellant and learned he could buy whisky from him, he- told appellant he did not then have the money to pay for it, but would go get it. The witness thereupon went to the constable who furnished him a $1 currency bill, he and another so marking the bill that it could be clearly identified, and gave it to the witness, who then went and bought the, whisky from appellant, paying this $1 bill therefor. Immediately after the sale the officers took from the witness the bottle of whisky so bought from appellant, and at once saw appellant and took from him the said $1 bill. Appellant positively denied making a sale of whisky to the witness, and claimed that the way he came in possession of the said $1 bill was that the witness Williams had him, appellant, to give him change therefor. Appellant also had other witnesses who testified substantially as he did. The state had other evidence strongly corroborating Williams in. his testimony. Under these circumstances appellant claims that the court erred in not submitting affirmatively his defense. He made no objection to the charge of the court at the time, and requested no special charge on the subject. The question is raised by motion for new trial only.

The fact that appellant attempted to show how he came in possession of the said $1 bill, as explained above, was no special defense to the state’s ease against him. His defense was that he did not make the sale and so testified. 1-Iis explanation of how he came in possession of the $1 bill is merely a matter of evidence and was no special defense. The court in submitting the case to the jury required them to believe the facts beyond a reasonable doubt necessary under the law to convict him before they could do so and gave in his favor the reasonable doubt charge in accordance with the statute, and that the burden of proof was on the state. The court did not err in not charging anything about the possession of said $1 bill. Any charge on the subject would clearly have been upon the weight of the evidence.

There being no error, the judgment will be affirmed.


author: HARPER, J.

text:
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Criminal Law (§§ 1092, 1099) — Bill of Exceptions — Statement of Facts — Time to File.
    Where the term of court is more than eight weeks long, the time in which to file bills of exceptions and statement of facts begins to run from the date of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919, 2866-2880; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1099:i — Statement op Facts — Obligation of Official Stenographer.
    It is only in a ease where one is charged with a capital offense and the court appoints an attorney for him that he is entitled as a matter of right to have the stenographer make out a transcript of his notes, and in all other cases he must use diligence to see that the stenographer complies with the order requiring him to make out a statement of facts.
    [Ed. Note. — For other cases, see' Criminal Law, Cent. Dig. §§ 2866-2SS0; Dec. Dig. § 1099.]
    3. Criminal Law (§ 1099) — Dutt of Official Stenographer — Mandamus.
    Where the stenographer in a case not capital fails to perform his duty of preparing a statement of facts as ordered by the court, the remedy of accused is by mandamus, which must be applied for within the time fixed for the filing of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]

      4. Criminal Law (§ 1097) — Questions Reviewable — Absence of Statement of Pacts.
    In the absence of a statement of facts, questions raised in the motion for new trial are not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934. 2938, 2939, 2941, 2942, 2947: Dee. Dig. § 1097.]
    Appeal from District Court,. Tarrant County; R. I-I. Buck, Judge.
    Henry Roberts was convicted of burglary, and lie appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   HARPER, J.

Appellant was tried and convicted of the offense of burglary, and his punishment assessed at 11 years’ confinement in the penitentiary. The. term of court at which appellant was tried convened on August 5 and adjourned November 2, 1912, lasting more than eight weeks.

Appellant’s motion for new trial was overruled on October 26th, and he was sentenced on that day, and under the provisions of the law granting time in which to file bills of exceptions and statement of facts, when the term is more than eight weeks in length, the time begins to run from the date of sentence, in this case October 26, 1912.

In this case it is made to, appear that on application filed the court in November entered an order requiring the official stenographer to make out a statement of facts, but the stenographer failed to do so. It is only in case where a man is charged with a capital offense, and the court appoints an attorney for the defendant, that under the law he is entitled, as a matter of right, to have the stenographer make out a transcript of his notes. In all other cases it has been held by this court and the Court of Civil Appeals that even though the court shall enter an order requiring the stenographer to make out a, statement of facts, the stenographer being a ministerial officer, the appellant is not entitled to have his case reversed unless he has used diligence to see that the stenographer performed'his duties, and, if he does not do so, it would be the duty of appellant to seek a writ of mandamus and have him required to do so. Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229; Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483. In this case appellant on January 29th did apply for a writ of mandamus, but as he had only 90 days from the date of sentence in which to file a statement of facts, and that time having elapsed, his application for a writ of mandamus came too late; from October 26th to January 24th would constitute 90 days, and the application for k writ of mandamus was not filed until January 29th, five days thereafter; therefore it becomes immaterial whether or not the judge was in. Tar-rant county on that date. A number of questions are presented by affidavits filed pro and con on the issues, but as the time had elapsed when appellant could have filed a statement of facts, when he applied for a writ of mandamus, and no reason stated why he did not apply, it is not necessary to discuss them.

In the absence of a statement of facts, no question is raised in the motion for a new trial we can review.

The judgment is affirmed.


author: DAVIDSON, P. J.

text:
    ARMSTRONG v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Walter Armstrong was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at ten years’ confinement in the penitentiary.

The matters set forth in this transcript refer to matters of practice altogether in regard to securing statement of facts. They are presented in several ways and are decided- adversely to appellant in the case of Henry Roberts v. State, 157 S. W. 1193, this day decided. On the authority of that opinion the matters do not present reversible error. It would serve no purpose to discuss the matter further or for the writer to express his individual views in regard to these questions.

On the authority of Roberts v. State, supra, the judgment will be affirmed.


author: DAVIDSON P. J.

text:
    SIMS .v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    Trespass (§ 76) — Trespass to Real Estate —Hunting with Firearms — Defenses.
    One hunting with firearms on inclosed land of prosecutor without his consent, under the mistaken belief that he is on the land of a third person, who has not given him permission to hunt, but who is his friend and will not object, is not guilty of the crime of hunting with firearms on the land of prosecutor.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. § 166; Dec. Dig. § 76.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    W. D. Sims was convicted of hunting with firearms on inclosed lands of another without the latter’s consent, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

       For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON P. J.

Appellant was convicted for hunting with firearms on inclosed lands of another without the consent of the alleged owner.

The facts in brief show on the 6th day of December, 1912, the alleged owner, Kim-brough, saw somebody shoot on his inclosure about 300 or 400 yards distant from the public road. This Kimbrough says was in his pasture. When he reached the party, it proved to be defendant. The defendant had a gun and two or three birds in his hand. Quoting from Kimbrough’s testimony: “I said fo him, ‘Did you not know that I did not allow this hunting on my place?’ and defendant said, ‘No, sir; I saw the birds in the lane, 'and they flew over the fence, and 1 came in and shot them.’ ” He says: “I told the defendant I was going to prosecute him, and he offered to give me the birds, and offered to pay me for the birds; but I did not take them.” He says: “Yes; I allowed some boys to hunt rabbits on my land, but do not allow any birds killed at all.” He also testified the defendant told him that he did not know it was his land, and he did not prosecute the boys for hunting rabbits on his land, for he had given them his consent. Weeks testified for the state, and says he saw defendant on Kimbrough’s land, and he says he only shot once, “and when I got close to him I told him he had better not let the old man (meaning O. L. Kimbrough) see him in here, .and he said he thought that this was Ben Davis’ land. I told him whose it was, and he said he thought the pasture was Ben Davis’.” Weeks says he was a son-in-law of the alleged owner. He saw defendant get two or three birds, but only shot one time. Boles testified he was sheriff of the county, and had been for six years, serving his fourth term; that he had traveled over different parts of the county frequently, and saw a plat drawn by Kimbrough of his (Kimbrough’s) land. He further testified in reply to a question about said plat, “Whose land did you think this belonged to?” Witness said he thought the land described by the plat was J. S. Hart’s land; but he further stated he did not know whose land it was, but was under the impression from- the plat the land belonged to J. S. Hart.

The defendant testified in his own behalf that he was driving along the road, bringing cattle from Garza to Scurry county, and when opposite the Ennis Greek schoolhouse he saw a covey of quail, and some one had left a gun in the hack that was along with the herd; at that time he was in the lane; the birds flew up out of the lane and lit near the road in a pasture, which was proved to be thq premises of Kimbrough. “I took the gun, got over the fence, and shot the quail; only had one load. While I was in the pasture, the gentleman, who said his name was O. L. Kimbrough, came up to me and said to me, ‘Did I know that I was violating the law?’ and I told him, ‘No; that I thought it was Ben Davis’ land;’ and he then said to me that Ben Davis did not own all the land on Ennis creek. He said he was going to prosecute me. I offered him the three birds that I had killed, and then offered .to pay him for the birds. He refused both. I left him in the field, and went to my hack, and came on home with the cattle.” He further stated he did not have Davis’ permission to hunt on his land,'but he knew it would be all right, or thought it would be, with Davis. Defendant says he was 52 years old, and never had a ease of this kind before, and did not know he was on Mr. Kimbrough’s land. This is the case.

Appellant asked the following special charge: “If you believe from the evidence beyond a reasonable doubt that the defendant, W. D. Sims, entered upon the land of O. L. Kimbrough, and at the time of said entry, if any. was made, you believe he did so through mistake, and you further believe that said defendant thought and believed said land to be that of Ben Davis, then you will find the defendant not guilty and so say by your verdict.” This charge was refused, and appellant reserved his bill of exceptions. The court approved the bill, with the explanation that the special charge was refused for the reason defendant testified that he did not have permission from Ben Davis to hunt with firearms on Ben Davis’ premises. We are of opinion this charge ought to have been given. The fact that he did not have Ben Davis’ consent to hunt on his land would not militate against his mistake, if he believed he was hunting on Ben Davis’ land. The defendant further testified, however, in this connection,p while he did not have the consent of Mr! Davis, they were friends, and he thought it would be all right, and he would not object to it. His mistake in thinking he was hunting on Davis’ land, under the above facts, it occurs to us, would inure to his benefit, though he was hunting upon another man’s land. A mistake of fact, where a party believes in the mistake of fact, will exonerate him from punishment, even though the fact was not true. It was a clear mistake on his part under his view of the case. He was not charged with hunting on Davis’ land, but with hunting on Kimbrough’s land, and the mistake arose as to the land on which he thought he was hunting. If it had proved to be Davis’ land, instead of Kim-brough’s, this prosecution could not have been maintained under the information.

The evidence seems to be unquestioned that the quail flew up out of the lane, and went over into the premises, and appellant went over and fired one shot. It may be seriously questioned whether this is hunting on inclosed land of another within the purview of the statute. There was but one shot fired. The writer does not believe this would bring it within the denunciation of the statute. This is hardly sufficient to constitute what the statute denominates as “hunting.”

The judgment is reversed, and the cause is remanded.


text:
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Intoxicating Liquors (§ 205) — Sales in Pkohibition Territory — Indictment — Presumptions.
    An indictment charging an illegal sale of intoxicating liquor after the adoption of prohibition, which does not allege when prohibition was adopted, charges prima facie a felony when the offense was committed after the felony statute went into effect.
    TEd. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Criminal Law (§ 276) — Indictment and Information (§ 159) — Illegal Sales — Adoption of Prohibition — Indictment.
    The date on which prohibition was adopted is a matter of form and accused to take advantage thereof must plead to the jurisdiction, and the state may amend the indictment showing the date of the adoption of prohibition.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 636, 637; Dec. Dig. § 276; Indictment ajad Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]
    3. Intoxicating Liquors (§ 223) — Violation of Prohibition Law — Adoption of Prohibition — Pro of — Necessity.
    A conviction for violating the prohibition law in any county or subdivision thereof cannot be sustained, in the absence of proof that prohibition was adopted and in force at the time of the alleged violation.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-274; Dec. Dig. § 223.]
    4. Criminal Law (§ 304) — Evidence—Judicial Notice — Facts of Common Knowledge.
    The court cannot take judicial notice that prohibition is in force in any county or subdivision thereof, and the personal knowledge of the presiding judge on a trial for selling liquor in prohibition territory is not judicial knowledge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 295%, 700-717; Dec. Dig. § 304.]
    5. Intoxicating Liquors (§ 239) — Illegal Sales in Prohibition Territory — Evidence-Instructions.
    The court on a trial for the sale of intoxicating liquor in alleged prohibition territory can only charge that prohibition is in force where proof has been made of the orders for the election, of the commissioners’ court declaring the result in favor of prohibition, and putting prohibition in force, and of the publication of the order putting prohibition in force.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    John Jackson was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

The grand jury of San Saba county indicted appellant and another jointly for an illegal sale of intoxicating liquors after án election putting prohibition in force had been had, properly declared, and published.

The indictment charges the offense to have been committed on September 7, 1912. After the indictment was properly returned and filed in the district court, the district judge made an order that as the indictment was for a misdemeanor the district court had no jurisdiction thereof and properly transferred the case to the county court. There was a severance and appellant tried first. •

The indictment does not allege when the election was held. in San Saba county, nor when prohibition therein went into effect. This court has uniformly held that where the indictment does not allege when prohibition went into effect, and that the offense was committed after the felony statute went into effect, that the indictment prima facie charged a felony. Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782; Garner v. State, 62 Tex. Cr. R. 525, 138 S. W. 124.

This court has also uniformly decided that the date on which a prohibition election was put in force was a matter of form, and, in order for a defendant to take advantage thereof, it was necessary to properly plead to the jurisdiction, but that the state could amend the indictment, or complaint and information showing the date prohibition was put in force. Hamilton v. State, 145 S. W. 348. We merely call attention to these matters so that the parties in the lower court can govern themselves in accordance with said decisions. There is but one question raised necessary to be decided.

This court has uniformly held, and there are a large number of decisions to that effect, that a conviction for violating the prohibition law in any county or subdivision thereof where prohibition has been adopted cannot be sustained, unless proof was made showing that prohibition had been adopted and was in force at the time the alleged violation occurred; that the courts cannot take judicial notice that prohibition is in force in any county or subdivision thereof. The personal knowledge of the presiding judge is not judicial knowledge.

After proof has been made in the case by showing the order for the election, the order of the commissioners’ court declaring the result favorable to prohibition and the order putting prohibition in force, and showing the publication of the order, then the court can charge the jury that prohibition is in force, but it cánnot do so unless this proof or other to the same effect is made. Dorman v. State, 141 S. W. 526; Ellis v. State, 128 S. W. 1125; Woodward v. State, 58 Tex. Cr. R. 411, 126 S. W. 270; Kinnebrew v. State, 150 S. W. 775, 776; Poudrill v. State, 61 Tex. Cr. R. 431, 135 S. W. 126, and a large number of other cases unnecessary to cite. In this case the judge of the lower court erroneously held that he had judicial knowledge that prohibition was in force in San Saba county, and the statement of facts shows that no evidence was introduced to show that prohibition was in force. This was properly raised by the appellant at the time in the court below in various ways. This was error for which the judgment must be reversed. There is nothing else raised necessary to be decided.

The judgment is reversed, and the cause is remanded.


text:
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    Criminal Daw (§ 1116) — Appeal and Ee-eoe — Bill op Exceptions — Necessity — Facts outside the Record.
    One convicted of a crime cannot take advantage of an alleged 'error in overruling a motion to quash the indictment based upon defects in the selecting and swearing of the grand and petit juries shown by extrinsic evidence, where the order overruling the motion appears, but not the motion itself, and there is no statement of facts or bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2924; Dec. Dig. § 1116.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Scotland Anderson was convicted of robbery with firearms, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, P. J.

Appellant was convicted of robbery with firearms; his punishment being assessed at 50 years’ confinement in the penitentiary.

There are several questions raised with reference to what appellant terms a motion to quash the indictment. These are based upon the allegations that the court failed to enter the order appointing the grand jury commissioners who selected the jury that returned the indictment, and that the court failed to have the minutes read in open court, and failed to sign the same in open court on the following day after said, appointment, and further that the court failed to quash the indictment for the reason that defendant proved to the court that the grand jury commissioners as aforesaid never procured the last assessment roll of the county for the purpose of selecting the persons to compose the grand jury who indicted defendant, and that by reason of such fact defendant was discriminated against by reason of all the grand jurymen being white men and this defendant a negro, and that said persons so selected were prejudiced against this defendant by reason of his being a negro, and because the court refused to quash the indictment for the reason that the defendant proved to the court that the court at the time delivered the list containing the names of the grand jurymen so selected as aforesaid and that were in an envelope at the time, that in delivering the same to the clerk of the court the court failed to swear each and every one of said clerks, and instead only administered to one of them the “affidavit” required by law, to wit, George Harris, who was a deputy clerk, and that there were four other clerks of this court besides George Harris, and because the court at the time of swearing the said grand jurors failed to administer to each of them separately the affidavit required by law but instead administered to them collectively said “affidavit,” which defendant alleges is contrary to law, and further that the court erred in administering the “affidavit” required by law to be administered to the bailiffs of grand juries in that the court administered to them collectively instead of singly the oath required by law to be so administered. Again he says the court erroneously refused to quash the indictment for the reason that the court failed to swear the witnesses that appeared before said grand jury and testified against defendant, and that said witnesses were not under oath at the time of so testifying by reason of the foreman of the grand jury being incapacitated by law from administering oaths; • that said grand jury foreman received no power or authority to administer oaths under the laws of the state of Texas by reason of being foreman of said grand jury. Again he urges the court committed error in refusing to quash the special venire ordered in this ease for the reason that the court failed to swear each and every one of said deputies in compliance with the Revised Statutes; said violation being wrought by reason, of the sheriff, of Tarrant county having several of his deputies to serve the summons on said veniremen and at said time the deputies' were not sworn in compliance with the above statute. It is also claimed the verdict is contrary to the law and the evidence.

There is no motion to quash the indictment contained in the transcript, but there is an order overruling a motion to quash. The matters above set forth are tauen from appellant’s motion for new trial. The record is before us without a statement of facts or bills of exception. In order to have taken advantage of the matters of fact alleged in the motion for new trial, if they were matters of fact and occurred as alleged, it was necessary to perpetuate such matters in bills of exceptions so this court would understand how the matters occurred. It is unnecessary to go into a discussion of the questions further than as stated. '

Finding, no reversible error in the record, the judgment is affirmed.


text:
    Ex parte CARTER.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    Appeal from Criminal District Court. Harris County; C. W. Robinson, Judge. Application by W. E. Carter for a writ of habeas corpus to obtain bail. From a judgment denying bail, relator appeals.
    Reversed, and bail granted.
    J. V. Meek, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Under a charge of murder, relator resorted to a writ of habeas corpus to obtain bail. Upon a hearing of the writ, the trial court remanded relator to custody. A review of the evidence has led us to the conclusion that the court erred. Without reviewing the facts, it is our opinion that relator is entitled to bail, which is therefore granted in the sum of $10,000. The officer having relator in custody will take hail in the terms or the law in the above amount, and release him from custody. The judgment is reversed, and bail granted in the sum of $10,000.


text:
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. B. H. Harris was convicted of robbery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary. The indictment is a valid one, and the court in his charge submits the offense charged in the indictment. No statement of facts accompanying the record, there is no question presented in the motion for a new trial we can review. Affirmed.


text:
    WADE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Appeal from Criminal District Court. Dallas County ; Robt. B. Seay, Judge. Will Wade was' convicted of murder in the first degree, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder in the first degree; his punishment being assessed at confinement in the penitentiary for life. The record contains neither a statement of facts nor bills of exception. The grounds of the motion for new trial cannot be considered, in the absence of the evidence. The judgment is affirmed.


text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    Appeal from District Court, Concho County*; Jno. W. Goodwin, Judge. J. W. Wilson was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Under an indictment charging an assault with intent to kill, appellant was convicted of an aggravated assault, and his punishment fixed at a fine of $25 and 30 days in jail. There is no statement of facts in the case. No question is raised which we can review and decide without a statement of facts. The judgment is therefore affirmed.


author: HUFF, C. J.

text:
    BENSON v. WRIGHT.
    (Court of Civil Appeals of Texas. Amarillo.
    May 31, 1913.
    Rehearing Denied June 21, 1913.)
    Appeal from Potter County Court; W. M. Jeter, Judge. Action by C. A. Wright against W. D. Benson. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. A. Wright and Yost & Busby, all of Amarillo, for appellee.
   HUFF, C. J.

The appellant pleaded that the note sued on was executed on an agreement to loan Bertha Hulme $400 — the agreement made by J. M. Clayton — and at that time he executed or gave his check for that amount, which was protested and never paid, and therefore the consideration of the note had failed. Appellant’s testimony is sufficient, if believed by the jury, to substantiate his plea. On the contrary, appellee pleaded and proved that the consideration for the note was not an agreement to loan money, but that Bertha Hulme was indebted to Clayton in a sum over $400, and the note was executed to pay the account due by Bertha Hulme to Clayton, and that the account was credited with the note sued on, and that the account had not otherwise been paid. The appellee’s testimony was sufficient to support his contention, if believed by the jury. . The court properly submitted the question to the jury, and they found against appellant and his contention. We find no reason suggested in the record for disturbing the verdict, and the case is therefore affirmed.


text:
    CICERO SMITH LUMBER CO. v. WOODS et al.
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1913.)
    Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge. Action by the Cicero Smith Lumber Company against Mrs. M. J. Woods and others. Judgment for the defendants, and plaintiff appeals.
    Affirmed.
    Whatley & Hawkins, of Paducah, for appellant. R. D. Browne, of Paducah, and O. T. Warlick, of Vernon, for appellees.
   HUFF, C. J.

We adopt the findings of fact found by the trial court, with the additional finding that the appellant sought to fix a materialman’s lien by filing with the county clerk of Cottle county its account, sworn to under the statute authorizing a lien by ma-terialmen. The evidence, however, is insufficient to establish that the material itemized K «^account was furnished by appellant to Mrs. M. J. Woods, to be placed in the building situated on lots 13 and 14, in block 32, in the town of Paducah, Cottle county, or that the house was erected out of such material, or, if any part of the material went into the house, the evidence does not show what part. There is evidence to support the judgment of the court that the appellant had no material-man’s lien on the lots and the property in question. The judgment of the trial court will therefore be affirmed.


author: KEY, C. J.

text:
    KLEIN v. GINSBERG.
    (Court of Civil Appeals of Texas. Austin.
    May 21, 1913.)
    Appeal from McLennan County Court; S. E. Stratton, Special Judge. Action by Edward S. Klein against J. Ginsberg. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Tirey & Tirey and W. R. Saunders, all of Waco, for appellant. Wilford W. Ñaman, of Waco, for appellee.
   KEY, C. J.

This case originated in a justice of the peace court, but was finally tried in the county court. It was a suit for damages for the breach of a lease contract. There was a verdict and judgment for ’the plaintiff for $63.-50, and the defendant has appealed. The first and last assignments of error complain of certain paragraphs of the court’s charge, but the objections urged are untenable. The learned special judge who tried the case submitted it to the jury under a charge which was reasonably accurate, entirely fair, and was free from the objections urged against it. The other two assignments are addressed to the action of the court in overruling certain exceptions to tne plaintiff’s petition — one to the effect that the recoveries sought were too • uncertain, speculative, and conjectural; and the other to the effect that the amended petition filed in the county court set up a new cause of action. We hold that the petition upon which the case was tried was not obnoxious to either of the objections urged. No error has been shown, and the judgment is affirmed. Affirmed.


author: WILLSON, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. FLORENCE et al.
    (Court of Civil Appeals of Texas. Texarkana.
    June 7, 1913.
    Rehearing Denied June 19, 1913.)
    Appeal from Up-shur County Court; W. A. Phillips, Judge. Action by M. C. Florence against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment over against the Missouri, Kansas & Texas Railway Company of Texas and in favor of the Marshall & East Texas Railway Company for damages recovered by plaintiffs against it, defendant Missouri, Kansas & Texas Railway Company of Texas appeals.
    Affirmed.
    Dinsmore, Mc-Mahan & Dinsmore, of Greenville, for appellant. C. E. Florence and Warren & Briggs, all of Gilmer, for appellee Florence.
   WILLSON, C. J.

Appellee Florence delivered to the Marshall & East Texas Railway Company, the other appellee, a car load of lumber to be carried by said railway company over its line of road from Rhonesboro to East Winnsboro, and by appellant over its line of road from East Winnsboro to Como. The shipment was covered by a through bill of lading issued by the Marshall & East Texas Railway Company. In accordance with Florence’s instructions, and as provided for in the contract, when the car of lumber reached East Winnsboro, it was delivered by the Marshall & East Texas Railway Company to a mill company to be planed. After the last-named company had planed it, the lumber was reloaded by said mill company on a car set by appellant on its track for the purpose, and several hours after it was reloaded on the car was destroyed by fire. Appellee sued both said railway companies, and recovered judgment against them for the sum of $225, the value of the lumber. The Marshall & East Texas Railway Company, claiming that it had discharged its duty under the contract, and that the lumber was destroyed while it was in the possession of appellant, prayed, in the event of a recovery against it by plaintiff, that it have judgment over against appellant for the amount of such recovery by plaintiff against it. The court rendered judgment against appellant in favor of said Marshall & East Texas Railway Company in accordance with its prayer. Of the assignments in its brief appellant is entitled, under rule 24 for the government of Courts of Civil Appeals (142 S. W. xii), to have considered only those which question the sufficiency of the testimony to support the judgment in favor of Florence against it. We have considered the testimony, and are of the opinion it was amply sufficient to support the judgment. Therefore it is affirmed.


author: RAINEY, C. J.

text:
    ST. LOUIS & S. F. RY. CO. v. WARD & BROWN et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 10, 1913.
    Rehearing Denied June 7, 1913.)
    Appeal from Hunt County Court; Geo. B. Hall, Judge. Action by Ward & Brown against the St. Louis & San Francisco Railway Company and others. Judgment for plaintiffs, and' defendant railway company appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Ft. Worth, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Clark & Leddy, of Greenville* H. C. Coke, of Dallas, and Dashiell, Crumbaugh & Coon, of Terrell, for appellees.
   RAINEY, C. J.

This is a suit against the railway company to recover damages juries to a shipment of horses from Kansas City, Mo., to Greenville, Tex., wherein a judgment was rendered for plaintiff against the St. Louis & San Francisco Railroad Company. The contract of shipment between plaintiffs and said railroad company sued on was in parol, and made by the agent of the railroad company, who was duly authorized to make such a contract. The horses were delivered to said railroad company under said contract, and they were injured in the transportation, to the extent that the jury was justified in awarding the amount of the verdict.' We find no error in the charge of the court as complained of, nor in refusing the charges requested. We find nothing in the proceeding contrary to the laws of the United States, nor of this state, that requires a reversal of the case, and the judgment is affirmed. Affirmed.


author: PHILLIPS, J.

text:
    FT. WORTH IMPROVEMENT DIST. NO. 1 v. CITY OF FT. WORTH.
    (Supreme Court of Texas.
    June 27, 1913.)
    1. Appeal and Error (§§ 78, 100') — Injunction— “Final Judgment” — Appeal prom Okdek Granting Temporary Injunction.
    A city owning certain waterworks, believing its works would be damaged by the construction of a levee by a levee district, brought suit for an injunction, and obtained a decree commanding defendant to protect the waterworks plant of cpmplainant by the erection of adequate dykes or levees within 60 days from the date of the order, or remove certain parts of the levee as constructed; also restraining defendant from filling the gap in the levee being constructed, as it existed at the intersection of the levee with a specified street in the city. Held that, since a judgment is final only when it leaves nothing further to be litigated in the case, such decree was not a final judgment, and an appeal therefrom would be regarded as an appeal from an order granting a temporary injunction authorized by Rev. Civ. St. 1911, art. 4644.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426, 434, 464-477, 480, 481,.670-680; Dec. Dig. §§ 78, 100.

    For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.]
    2. Appeal and Error (§ 281) — Order Granting Temporary Injunction — Motion por New Trial — Necessity.
    Rev. Civ. St. 1911, art. 4645, provides that, on appeal from an order granting a temporary injunction, the case may be heard on the bill and answer, and such affidavits and evidence as may have been admitted by the judge granting, refusing, or dissolving the injunction, and that the appellant may file a brief in the Court of Civil Appeals or Supreme Court. Held, that a motion for a new trial-is not a necessary prerequisite to such' an appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. § 281.*]
    3. Appeal and Error (§ 755) — Order Granting Injunction — Necessity op Brief.
    Under Rev. Civ. St. 1911, art. 4645, providing that, on an appeal from an order granting a temporary injunction, the appellant may file a brief in the Court of Civil Appeals or Supreme Court, a filing of the brief is optional, and not essential to the hearing of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3090; Dec. Dig. § 755.]
    4. Appeal and Error (§ 861) — Certificate of Court of Civil Appeals — Findings of Fact.
    On certified questions by the Court of Civil Appeals, the Supreme Court cannot find the facts, but is limited to those found by the Court of Civil Appeals as presented in the certificate.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3447, 3448; Dec. Dig. § 861.*]
    5. Waters and Water Courses (§ 171)— Riparian Owners — Use of Stream.
    As a riparian owner may make no use of the stream that will result to the injury of another riparian owner, he may not, for his greater convenience or benefit, erect an embankment or obstruction which in times of ordinary flood will cause the waters to overflow, and injure the land of an opposite proprietor.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. § 171.*] I
    6. Eminent Domain (§ 82) — Damaging Property for Public Use — “Property.”
    The word “property,” as used in Const, art. 1, § 17, providing that no person’s property shall be taken, damaged, or destroyed for, or applied to, public use without adequate compensation, etc., is used in its legal sense, and means not only the thing owned, but also every right which accompanies ownership, and is incident thereto.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 215-219; Dec. Dig. § 82. For other definitions, see Words and Phrases, vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770.]
    7. Eminent Domain (§ 91) — Damaging Property for Public Use — “Damaged.”
    Where an injury results to other property from a public improvement, and is only of such nature as is suffered from the same cause in common with other property in the same community or section, the damages so accruing are merely consequential, and the property is not “damaged” in the constitutional sense, so as to entitle the owner to recover therefor, under Const, art. 1, § 17, prohibiting the taking or damaging of property for public use without compensation; but, if the public improvement is so constructed that it inflicts an injury peculiar to certain property not suffered in common with other property in the community or section, then it is “damaged” in the constitutional sense, and compensation must be provided.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 234, 235; Dec. Dig. § 91.* For other definitions, see Words and Phrases, vol. 2, pp. 1820-1822.]
    8. Eminent Domain (§ 90) — Damaging Property by Public Improvement — Compensation.
    Defendant levee district having been organized pursuant to Rev. Civ. St. 1911, tit. 47, proceeded to construct a levee near the city of Ft. Worth adjacent to a point on the Trinity river where the city maintained a pumping plant. It appeared that during the highest flood the pumping stations had not been seriously flooded, but that with the construction of the levee the plant in ordinary flood times would be submerged approximately five feet, and that by reason thereof the machinery would be damaged and the city and its inhabitants deprived of a water supply. Held, that such injury amounted to a direct invasion of the city’s property so as to destroy it for its accustomed use, constituting an actual appropriation thereof, and hence the city was entitled to an injunction restraining the completion of the work until compensation had been provided and paid, according to Const, art. 1, § 17, prohibiting the taking or damaging of any person’s property for public use without providing compensation.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 233; Dec. Dig. § 90.*]
    9. Eminent Domain (§ 275) — Injunction-Construction of Works.
    Since Rev. Civ. St. 1911, tit. 47, providing for the organization of levee districts, confers on them the power of eminent domain, but provides that no county or improvement district, nor the taxpayers thereof shall be liable for the construction, maintenance, or repair of levees or other improvements, in accordance with the provisions of the act, an owner of property that would be specially injured by the construction of a levee by a district organized under such act is entitled to an injunction restraining the completion of the work.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 769-773; Dec. Dig. § 275.*]

      10. Eminent Domain (§ 275) — Injunction-Construction-oe Works.
    An injunction will lie to restrain the completion of the work of a levee district where its effect will be to especially injure a city’s waterworks plant already dedicated to public use, under the rule that the power of eminent domain may not be exercised if the result will be a practical destruction of the public use to which the property damaged has already been devoted.
    [Ed. Note. — Por other cases, see Eminent Domain, Cent. Dig. §§ 769-773; Dec. Dig. § 275.*]
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by the City of Pt. Worth against the Pt. Worth Improvement District No. 1. Prom an order granting a temporary injunction, defendant appeals. On certified questions from the Court of Civil Appeals.
    McLean, Scott & McLean, of Pt. Worth, for appellant. Slay, Simon & Wynn, of Pt. Worth, for appellee.

      B'qr other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

The certificate of the Court of Civil Appeals of the Second District is as follows:

“The Pt. Worth improvement district No. 1, in pursuance of title 47, Revised Statutes of Texas 1911, has constructed certain levees which according to allegations of the complainant the city of Pt. Worth threaten to destroy certain municipal property, and from a judgment of the district court enjoining it in the maintenance of such levees the improvement district appeals.
“As preliminary to the questions of practice certified the judgment in its entirety is here set out:
“ ‘This day came the parties by their attorneys and submitted the matter in controversy as well of fact as of law to the court, and the evidence and argument of counsel having been heard, and fully understood, it is considered by the court that the equities of the case are with the plaintiff, and,
“ ‘It is therefore adjudged, decreed, and ordered by the court that a temporary writ of injunction issue, restraining and enjoining the defendant, its agents or employés, from filling the gap in the levee now being constructed by the defendant as said gap now exists at the intersection of said levee with North Main street, in the city of Pt. Worth, and,
“ ‘It is further adjudged, decreed, and ordered by the court that a mandatory writ of injunction issue, commanding and directing the defendant to take immediate steps to protect the two waterworks plants of plaintiff, to wit, the old pumping station and the Holley plant, by adequate dykes or levees within 60 days from, the date hereof, but, in the event defendant refuses to take such steps, said defendant is commanded and directed to tear out and remove the following parts of the levee already constructed by it, to wit:
“ ‘Beginning at a point on the levee along the Clear fork and approximately 300 feet west of the Prisco tracks, and at the extreme southwest end of said levees, the defendant is directed to tear out and remove said levee and dirt work level with the surrounding ground and territory from the aforesaid point in an easterly northeasterly direction for a distance of 900 feet. And, beginning at a point 600 feet upstream from a point in said levee opposite the Holly plant, the defendant is directed and commanded to level said levee and embankment to the ground for a distance of 200 feet upstream from the aforesaid point of beginning.
“ ‘The clerk of this court is hereby directed to issue a writ of injunction in accordance herewith.
“ ‘To which action and judgment of the court the defendant then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District.’
“The improvement district duly filed its appeal bond in proper form on February 5, 1913, and on the same day filed the transcript of the record in this court. The transcript contains neither a motion for new trial below, nor an assignment of errors, nor are any briefs filed by the appellant in this court. The following agreement as to certain facts involved is contained in the statement of facts, to wit:
“ ‘That the city of Pt. Worth is a municipal corporation, and is now and was long prior to’the creation of the Pt. Worth improvement district No. 1 a riparian owner of certain lands upon and along the Trinity river, and that it has for approximately 25 years maintained on such land two pumping stations, to wit; one on the Clear fork near the confluence of that with the West fork, known as the old pumping station, and one on the Clear fork approximately one mile from the old station, known as the Holley plant, as indicated by the letters X and X on map attached to and made a part of plaintiff’s petition, and said plants are not within the area or lines of the improvement district which embraces about 3,000 acres. That heretofore the highest floods have not flooded either of said stations, but during the flood of 1908 the water came within about eight inches of the door sills of the Holley plant, and up to the door sill of the old pumping station and a few inches above, it being necessary to put sacks of sand in the door in order to keep the water out of said plant at said time, but that by reason of the existence of the levee and as a result of the construction of the same each of said plants will now be submerged approximately five feet in times of ordinary flood, and that, as direct and proximate result of such flood, the' city and its inhabitants by reason of the destruction of machinery that will be damaged and by reason of being unable to supply water for domestic purposes and for fire protection will suffer irreparable injury.
“ ‘That tbe defendant Ft. Worth improvement district No. 1 has been organized and created in strict conformity and compliance with the terms and conditions of the statute providing for same.
“ ‘That in pursuance of its purposes it has acquired a right of way, and constructed almost to completion a levee along the banks of said West and Clear Forks of the Trinity river. By the Holley plant the levee is constructed on the west bank opposite to plaintiff’s property. That the old pumping station stands on the Clear fork of the Trinity river near the confluence of that stream and the West fork and the levee is constructed on the opposite side of the river.
“ ‘That before the construction of said levee these flood waters, which will now be confined within the levee, spread out oyer the valley in one continuous stream of water of approximately one mile in width with a depth of approximately two to five feet, and that said waters found their way back into the main channel farther down the stream. That by reason of the construction of said levee the Ft. Worth improvement district has heretofore levied a tax of $1.75 upon the $100 valuation, as said property is assessed for state and county taxes, said assessment being the limit allowed by law for such purposes. There are from 300 to 500 persons owning property within this levee district.
“ ‘The cost of building this levee was approximately $250,000, and the length of same is approximately 11 miles.
“ ‘The height of the levee is from 8 to 20 feet; the base is from 46 to 106 feet; the levee is 6 feet wide on top, this width being uniform.
“ ‘It is agreed that the levee is constructed at least 5 feet above the high-water mark of 1908.’
“We find the facts embraced within this agreement to be true, and further find that the evidence justifies the judgment awarding a temporary writ of injunction if the rules governing the issuance of such writs applicable generally to individuals shall be held to be applicable to drainage districts under the statute like appellant. Supplementing our statement, if necessary, we beg to refer to a statement of the pleadings contained in the transcript and also to the statement of facts which accompanies it. We beg to certify to your honors for decision:
“First. Whether or not this appeal is from an order granting a ‘temporary injunction’ within articles 4644 and 4645, Revised Statutes 1911, authorizing such appeals and dispensing with the necessity for filing briefs -in the Court of Civil Appeals, or is the judgment attempted to be appealed from a final judgment in the cause, and the appeal, therefore, governed by the general rule with respect to filing briefs?
“Second. If the appeal is authorized under the articles of the statute last above referred to, then may the same be heard in this court in the absence of a motion for new trial (under Rule 71a for the guidance of district and county courts), and in the absence of assignments of error?
“Third. Do the facts stated justify the judgment of the district court; the other questions presented being answered in a way to make this material?”

In answer to the first question, it is our opinion that the judgment is not a final one, and the appeal in the case may be properly characterized as from an order granting a temporary injunction within the provisions of article 4644, Revised Statutes of 1911. A judgment is final only when it leaves nothing to be further litigated in the case. Linn v. Arambould, 55 Tex. 611; T. & P. Ry. Co., v. Ft. Worth St. Ry. Co., 75 Tex. 82, 12 S. W. 977. While this judgment in its provision for the mandatory injunction grants such relief as would not ordinarily be extended except as the result of a( trial upon the merits and in this feature has the aspect of finality, yet in respect to “filling the gap in the levee now being constructed by the defendant as said gap now exists at the intersection of said levee with North Slain street in the city of Ft. Worth,” which was apparently essential to the completion of the levee, it decrees only a temporary injunction. It thus appears that a necessarily important issue in the case — that is, whether this work might ultimately be done by the defendant toward the completion of the levee — is not finally disposed of. By the mandatory injunction provided for the defendant is commanded to protect the waterworks plant of the plaintiff by the erection of adequate dykes or levees within 60 days from the date of the order; otherwise it is directed to remove certain parts of the levee as constructed. But the judgment is not open to the construction that the defendant should be permanently enjoined from this work of completion in the event it performed that part of the mandatory injunction requiring that it protect the plaintiff’s waterworks plant by adequate dykes or levees. It is apparently framed upon the view that the defendant would have the right to complete the levee if it adequately protected the waterworks plant. The obvious purpose of the judge was not to conclude this question, since the judgment makes no disposition of the rights of the parties under such alternative. In only temporarily enjoining the work of completion the ultimate right of the defendant to finish and maintain the levee is by the terms of the judgment plainly left for future adjudication. In the absenpe of an absolute determination of this issue, the judgment is not a final one.

In reply to the second question, we answer that in a proceeding of this character the filing of a motion for a new trial was unnecessary, and the appeal was entitled to be heard without the presentation of formal assignments of error. The statute imposes no such requirement in terms, and it is excluded, we think, by necessary implication. The provision in article 4645 that “the case may be heard in the said courts on the bill and answer, and such affidavits and evidence as may have been admitted by the judge granting, refusing or dissolving such injunction,” very plainly implies that the filing and determination of a motion for a new trial was not a necessary prerequisite to the appeal- It contemplates that the same issues shall be presented to. the appellate court as to the trial judge, and in the same way, as is evident from this provision. A motion for a new trial could perform no useful office in such a proceeding. If it had been contemplated, the statute would not have required, as it does, that the time for the filing of the transcript be computed from the date of the entry of record of the order or judgment granting, refusing or dissolving the injunction, which clearly has reference to the original order or judgment of the judge in the matter.

A further provision in article 4645 is that the appellant “may file a brief in the Court of Civil Appeals or Supreme Court,” plainly showing that the filing of briefs is not positively required. Since briefs are not required, the provision that the case may be heard in the appellate courts upon the “bill and answer,” etc., clearly has the force of dispensing with the filing of assignments of error. The purpose of the statute was to facilitate the prompt hearing of such appeals, and it is manifest from its provisions that it was the intention of the Legislature to relieve the proceeding from these formalities. This view of the statute in respect to the filing of assignments of error was correctly taken by the honorable Court of Civil Appeals for the Second District in Merrill v. Savage, 49 Tex. Civ. App. 408, 109 S. W. 408. The opposite view was announced by the honorable Court of Civil Appeals for the Third District in Acre Spring Live Stock Co. v. West Texas Bank & Trust Co., 55 Tex. Civ. App. 116, 118 S. W. 790. A writ of error was denied in the latter case, but it does not appear to have been refused upon this ground. At all events, we are convinced that our construction of the statute is that which its terms require and its purpose enjoins.

Under the third question, the contention made in this court by the appellant, the defendant below, is largely predicated upon the position that the city of Ft. Worth was estopped to interfere with its completion and maintenance of the levee. Whatever may be the facts as shown elsewhere in the record, the certificate of the Court of Civil Appeals embodies no findings of fact which present the issue of estoppel. We have no authority to find the facts in any case, and in this proceeding are not privileged to ascertain them beyond such finding thereon by the Court of Civil Appeal as is presented in its certificate. Our answer to this question is therefore without regard to such issue.

As between individual riparian owners, it is an established principle that one may make no use of the stream that will result to the injury of the other, and may for his greater convenience or benefit erect no embankment or obstruction which in times of ordinary flood will cause its waters to overflow and injure the lands of an opposite proprietor. This is but the application of the doctrine embodied in the ancient maxim, that one must enjoy his own rights so as not to injure those of another; or, as elsewhere well expressed, “the necessities of one man’s business cannot be made the standard of another man’s rights in that which belongs equally to both,” which, of course, includes that in which both have an equal usufructuary interest, the extent of the right of riparian owners in the waters of a stream. It is but the rule of universal right and common justice, and stands in need of no sanction to give it authoritative force. The question, however, is thoroughly treated in 2 Farnham on Waters and Water Rights, § 530, in which it is said: “The .owner of one bank may erect structures to protect his bank in its original condition. But he cannot erect embankments in the stream for the purpose of reclaiming land, the effect of which is to destroy the opposite bank. Nor can he erect structures for the protection of his own banks in such a way as to change the natural flow of the water, and east it upon his neighbor’s land. It has been held that one owner might raise his bank so as to confine the water to the channel in times of flood. But in such cases the limitation is made that in so doing he must not cause injury to the lands or property of other persons. The limitation goes a long distance towards destroying the rule. A basin of a given size is necessary to hold the water which naturally belongs to a water course, and, if it is cut off on one side, it must be enlarged on the other; so that the raising of one of the banks, preventing the water from occupying the flood channel on that side, necessitates its occupying proportionately more space on the opposite side, and the increase of the water there must, of necessity, cause injury to the landowner; and the act is a direct violation of the maxim ‘Sic utere tuo ut alienum non Isedas,’ in that, for the purpose of relieving his own property of a burden, the owner merely transfers it to his neighbor. Some of the cases have made the question of liability depend upon whether or not the carrent of the stream was changed by raising the banks on one side, holding that there was liability in case it was. But the broader rule that the owner of one bank cannot turn the water onto his opposite neighbor is very ancient. Yattel states that no embankment can be raised the tendency of which is to throw the water upon the opposite bank. And that is the rule which has been adhered to, more or less strictly, by the current of authority. It is also the rule of justice and right. If, for the protection of property and the development of the country, it is necessary to confine the waters to the channel of the stream, it can easily be done under the governmental power to make needed improvements by raising banks on both sides of the stream alike; and one owner should not be permitted to take the matter into his own hands, and thereby injure or destroy the property of his neighbor. This rule prevents the construction of a solid embankment along the stream by a railroad company the effect of which is to cast the water in greater quantities onto the opposite shore.”

A thorough review of the eases is found in the decision of the Supreme Court of Georgia in the case of O’Connell v. Railroad Company, 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rqp. 246, in which the general rule is reannounced. In Angelí on Water Courses-, § 528, it is said: “But a riparian proprietor for his greater convenience and benefit has no right to build anything which in times of ordinary flood will throw water on the grounds of another proprietor so as to overflow and injure them.” Other authorities upon the question are Sullivan v. Dooley, 31 Tex. Civ. App. 589, 73 S. W. 82; Keck v. Venghause, 127 Iowa, 529, 103 N. W. 773, 4 Ann. Cas. 716; Casebeer v. Mowry, 55 Pa. 419, 93 Am. Dec. 766; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24.

The question involved here is whether this principle governs in relation to a work of public improvement prosecuted under legislative authority. The reclamation of lands bordering upon streams accustomed to overflow is a work of great public importance, to be encouraged and promoted, and its progress and development are of common concern. These considerations of public interest had weight with the Legislature and led to its enactment in 1909 of the law providing for its prosecution by improvement districts, now constituting chapter 2 of title 83, Revised Statutes of 1911, under which, as we understand the case, the appellant was created and the levee in question has been in part completed. The work is therefore one which is clearly licensed and authorized by law, and to the time of the issuance of the injunction had involved the expenditure of a large sum of money. It appears, however, from the certificate that the result of its completion will be in times of ordinary flood to east the waters of the river, along one bank of which it is constructed, upon the land of the appellee on the opposite bank in such quantity and degree as to practically work the destruction of an expensive waterworks plant, upon which the citizens of Ft. Worth are dependent for a water supply for domestic purposes and fire protection, inflicting in consequence irreparable injury.

We are not insensible of the importance of the question, or the bearing of its decision, however it is determined, upon the respective parties. It is of a character to constrain a court to diligent care, but to our minds it is resolved by principles of law that are unassailable, whose application can only lead to one conclusion.

Section 17 of article 1 of our Constitution is as follows: “No person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.” In G., C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467, Judge Stayton discussed this provision as follows: “This language is broader than that used in the former Constitutions of this state, and was doubtless intended to meet all cases in which, even in the proper prosecution of a public work or purpose, the right or property of any person, in a pecuniary way, may be injuriously affected by reason of the thing being made thereby less valuable, or its use by the owner restricted by the public use to which it is wholly or partially applied, without compensation having been first made to the owner. It is also not improbable that it was intended, by the language found in the present Constitution, to meet and correct evils which had sometimes been thought to result to the property owner from a narrow and technical meaning sometimes put by courts upon the word ‘taken’ used in the former Constitutions of this state and in the Constitutions of the most of the other states. The word ‘property,’ as used in the section of the Constitution referred to, is doubtless used in its legal sense, and means not only the thing owned, but also every right which accompanies ownership and is its incident”

In the construction of legally authorized public works, it is inevitable that benefits will accrue to the property of some persons and injury result to that of others. If the injury that thus results from the improvement be only of such nature as is suffered from that cause in common with other property in the same community or section, the damages thus accruing are deemed merely consequential, and no right of action exists. In such cases, it is not considered that the property is “damaged” within the eon-templation of the constitutional provision, and the right to compensation is denied. If, however, a public wort is constructed which inflicts an injury peculiar to certain property not suffered in common with other property in the community or section, then such property is “damaged” within the meaning of the Constitution, and the law will not permit the infliction of such injury without the allowance of just compensation. Whenever the Legislature, therefore, authorizes the construction of a public wort, there is imposed upon its authorization the constitutional limitation that no man’s property may be “damaged” thereby unless just compensation be allowed, and unless provision be made therefor as to property so “damaged” the legislative permission affords no authority for the particular act. Railway Company v. Fuller, supra.

The question in all such cases is resolved by determining whether the injury is peculiar to the property in question, or is only such as is suffered from the same cause in common with other property in the same section or community; that is, whether the property is “damaged” in the true sense of the constitutional provision. Whenever the injury amounts to a direct invasion of the given property, so as to destroy it for its accustomed use, accomplishing in effect an actual appropriation, as, according to the certificate, would be the effect upon the ap-pellee’s property under the condition of an ordinary flood in the bordering stream, there can be no doubt that the damage is not merely consequential in its nature, but is of the character for which, in cases of private property, compensation would have to be made if the act causing the injury were permitted. A profitable discussion of this question is found in the opinion of Justice Miller in the case of Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557, where the plaintiff’s lands were overflowed as the result of the construction of a dam and legislative authority for its construction was interposed as a defense to an action for damages, in the course of which it was said: “The argument of the defendant is that there is ño taking of .the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation. It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the government refrains from the absolute conversion, of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowed sense of that word, it is not ‘taken’ for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors. In the case of Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 162 [7 Am. Dee. 526], Chancellor Kent granted an injunction to prevent the trustees of Newburgh from diverting the water of a certain stream flowing over plaintiff’s land from its usual course, because the act of the Legislature which authorized it had made no provision for compensating the plaintiff for the injury thus done to his land. And he did this though there was no provision in the Constitution of New York such as we have mentioned, and though he recognized that the water was taken for a public use. After citing several continental jurists on- this right of eminent domain, he says that, while they admit that private property may be taken for public uses when public necessity or utility requires, they all lay it down as a clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified. And he adds that the principles and practice of the English government are equally explicit on this point. It will be seen in this case that it was the diversion of the water from the plaintiff’s land which was considered as taking private property for public use, but which, under the argument of the defendants’ counsel, would, like -overflowing the land, be called only a consequential injury.

“If these be correct statements of the limitations upon the exercise of the right of eminent domain as the doctrine was understood before it had the benefit of constitutional sanction by the construction now sought to be placed upon the Constitution, it would become an instrument of oppression rather than protection to individual rights.”

In Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36, 86 N. E. 163, 19 L. R. A. (N. S.) 991, 15 Ann. Cas. 904, the same defense was interposed by such a district as the appellant here in an action for damages to overflowed lands caused by the erection of a levee under the authority of a legislative act similar to that here involved, but the Supreme Court of Illinois held: “It is correct to say that a drainage district is a quasi corporation if the act under which it is organized does not make it a corporation in fact; but it is not created for political purposes or for the administration of civil government. Undoubtedly a drainage district is not liable for the unauthorized acts of its commissioners for which they are personally liable, but the district is clothed with the power of eminent domain for the purposes of its organization, and is prohibited by the Constitution from taking or damaging lands without making compensation therefor. If no means were furnished with which to pay such damages that fact would furnish no authority for causing such damages, and the obvious result would be that acts causing damage to others could not be performed at all.” To the same general effect is the holding in Weaver v. Mississippi, etc., Co., 28 Minn. 534, 11 N. W. 114, and Ex parte Martin, 13 Ark. 198, 58 Am. Dec. 321. Upon the same question in 2 Farnham on Waters and Water Rights, § 357, it is said: “In states where the Constitution provides for the payment of damages for land injured as well as taken, the liability of the land to such injury may form an element of the damages to be awarded to the landowners. And, if no provision whatever is made for damages for the land taken, the construction of a levee which will obstruct the drainage lands will be enjoined.”

That act under which this levee has been constructed, while clothing the districts thereunder authorized with the power of eminent domain, makes no provision for the payment of compensation for lands damaged. On the contrary, it is therein provided by article 5569 that “no county or improvement district, nor the taxpayers therein, shall be held for damages occasioned by the construction, maintenance or repair of levees or other improvements under the provisions of this chapter.” Since no compensation is provided or offered for the injury to which, according to the certificate, the appellee’s property would be subjected by the completion of the levee, it is clear that for this reason alone an injunction would lie though the injury will be inflicted by an act in the interest of a public use.

The case, however, presents another reason which our opinion plainly justified resort to this remedy. The act enjoined would have affected property itself dedicated to a public use. In respect to such property even the power of eminent domain may not be exercised if the result will be practically the destruction of the use to which it has been devoted, as the honorable Court of Civil Appeals substantially finds will be the condition here produced in times of ordinary flood in the river by the completion of the levee. Sabine & East Texas Ry. Co. v. Gulf & Interstate Ry. Co., 92 Tex. 162, 46 S. W. 748.

The facts certified are not sufficient for us to say whether the injunction in its entire scope and extent was justified, but in answer to the third question our holding is that under the facts stated in the certificate the appellee was entitled to an injunction restraining the completion of the levee until adequate protection is afforded to its property, with such provision as will relieve its property from the threatened injury if such protection be not given.


author: PLY, C. J.

text:
    SOVEREIGN CAMP WOODMEN OF THE WORLD v. RUEDRICH.
    (Court of Civil Appeals of Texas. San Antonio.
    May 21, 1913.
    Rehearing Denied June 18, 1913.)
    1. CORPORATIONS (§ 514) — ACTIONS—ALLEGATIONS and Denial of Corporate Existence.
    Under Rev. Civ. St. 1911, art. 1906, subd. 7, providing that an answer setting up tnat plaintiff or defendant alleged in the petition to be duly incorporated is not incorporated as alleged must be verified by affidavit, where the allegation of the petition that defendant was duly incorporated was not denied by a sworn plea, plaintiff was not required to prove defendant’s corporate existence.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2052-2081; Dec. Dig. § 514.*]
    2. Appeal and Error (§ 204) — Reservation op Grounds op Review — Necessity op Objections.
    In an action on a benefit insurance certificate, where no objection was made at the trial to the manner of proving the loss of the certificate and its contents, no question could be raised relative thereto on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274r-1278, 1280, 1569; Dec. Dig. § 204;* Trial, Cent. Dig. § 172.]
    3.Lost Instruments (§ 23) — Mutual Benefit Insurance — Actions—Sufficiency op Evidence.
    In an action on a mutual benefit certificate, evidence held, sufficient to show the loss of the certificate and its contents.
    [Ed. Note. — For other cases, see Lost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.*]
    4. Death (§ 2) — Presumptions as to Death prom Absence.
    Under Rev. Civ. St 1911, art. 5707, providing that any person absenting himself beyond sea or elsewhere for seven years successively shall be presumed to be dead in any cause wherein his death may come in question, unless proof be made that he was alive within that time, the presumption arises upon proof of absence of a person from his home for seven years without showing that he has not been heard from during that time, although it can be destroyed by proof of his existence within that time. ■
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dee. Dig. § 2.*]
    5. Death (§ 2) — Presumptions as to Death prom Absence.
    In an action on a benefit insurance certificate, evidence that insured, whose domestic relations were of a pleasant character, and who was kind and affectionate and fond of his wife and children, left his home stating that he was going to consult a doctor and would be back that night or the next day, that for seven years he was not heard from, although he was sought by his wife and others, raised a presumption of his death at some time during the 7 years, since under Rev. Civ. St. 1911, art. 5707, providing that any person absenting bimself beyond sea or elsewhere for seven years successively shall be presumed to be dead, unless proof be made that he was alive within that time, it is not necessary to show an absence beyond seas or outside the state; absence from his home being sufficient.
    [Ed. Note. — Por other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. § 2.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Action by Helene Ruedrich against the Sovereign Camp Woodmen of the World. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Augustus MeCloskey and E. D. Henry, both of San Antonio, for appellant. Emil Mo-sheim and H. M. Wurzbaeh, both of Seguin, for appellee.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLY, C. J.

Appellee sued appellant for $1,000 alleged to be due on a certificate of insurance issued by appellant. It was alleged that appellant “is a fraternal and beneficial association duly licensed to do business in the state of Texas and incorporated under and by virtue of the laws of the state of Nebraska, and has complied with the laws of the state of Texas in appointing the Commissioner of Insurance of the state of Texas as the person on whom process may be served in any suit in which such association may be a party, and plaintiff represents that Hon. B. L. Gill is Commissioner of the Department of Insurance and Banking and resides at Austin, in Travis county, Tex., and upon whom service is prayed to be had.” It was further alleged that appellee was the wife of Richard Ruedrich, who became a member of appellant’s association, and a certificate was issued to him for $1,000, payable to appellee upon the death of her said husband; that on or about November, 1901, he mysteriously disappeared, and that she has heard nothing of him since that time; that he had paid all his dues and was in good standing in said association when he disappeared. Appellant filed a general demurrer and general denial. The cause was tried by the court and ye-sulted in a judgment for appellee in the sum of $1,000.

Appellant did not, by sworn plea, deny its corporate existence as alleged in the petition, and cannot be heard to raise that question in this court, as is sought to be done through the first assignment of error. The statute is plain that an answer setting up “that the plaintiff or the defendant, alleged in the petition to be duly incorporated, is not duly incorporated as alleged” must be verified by affidavit. Article 1906, subd. 7, R, S. 1911. Unless such verified plea be filed, it is not necessary to prove the existence of the corporation. Willis v. Smith, 17 Tex. Civ. App. 543, 43 S. W. 325; Railway v. Fulmore, 26 S. W. 238.

No objection was made in the trial court to the manner of proving the loss of the certificate and its contents, and appellant cannot raise that question in this court. The evidence showed that Paul Ruedrich was a member of appellant’s association and had paid his dues, and that he had a certificate for $1,000, which was lost or misplaced. Appellee testified: “The last time I saw my husband was the 6th day of November, 1901. At that time he was a member of the Woodmen of the World. I have not his certificate of membership. * * * At the time my husband left he was a member in good standing' in this order of the Woodmen of the World. * * * My husband was insured for $1,000 in the Woodmen of the World.” She testified that some of her husband’s papers were lost and she could not find the certificate, but that she had seen it and that it was for $1,000. Alf. Hartmann swore: “Mr. Ruedrich joined the Woodmen of the World when he was very young. These amounts on these receipts would indicate that he was insured for $1,000.” Receipts for dues were put in evidence. The evidence was sufficient, and the second, third, and fourth assignments of error are not sustained.

The evidence showed that Richard Rue-drieh, being sick, left his home and family, consisting of a wife and five children, in Guadalupe county, on November 6, 1901, stating that he was going to consult a doctor and would be back that night or the next day. He was never afterwards seen by his family. He was shown to be kind and affectionate and fond of his wife and children. Search was made for him, but nothing was ever known of what became of him, unless a decomposed body, found in San Antonio a few months after he left home, was his.

It is provided in article 5707, R. S. 1911: “Any person absenting himself beyond sea or elsewhere for seven years successively shall be presumed to be dead, in any cause wherein his death may come in question, unless proof be made that he was alive within, that time. * * ”

In the case of State v. Teulon, 41 Tex. 249, the Supreme Court said: “It is a rule of the common law that death may be presumed from absence for seven years without having been heard of. But this is' when the party whose death is in question has been absent from his last known place of residence or domicile, without any knowledge or information being had of him by his friends and relations, or among those who were acquainted with him, or who for some reason it should be supposed would have heard from or about him, if living. This common-law rule has, to some extent, been changed by our statute, * * * which says any person absenting himself beyond sea or elsewhere for seven years successively shall be presumed to be dead, in any case wherein death may come in question, unless proof be made that he is living.”

Under the common-law rule it was necessary to show that the absent one had not been heard from by his relatives or friends for seven years, but under the statute mere proof of absence of one from his home, beyond the sea or elsewhere, for seven successive years raises a presumption of death, which can be destroyed by proof of the existence of the absent one within that time. In the case of French v. McGinnis, 69 Tex. 19, 9 S. W. 323, the following charge was given by the trial court and approved by the Supreme Court: “If the plaintiffs have satisfied you that said Joseph McGinnis was dead at or be-for the institution of this suit, or that said McGinnis had absented himself beyond the sea, or elsewhere, for seven successive years, and if the evidence does not show that he was alive within that time, then you will find your verdict for the plaintiffs.” The court said: “The appellants insist that this charge was error because it was not qualified by stating that the absence must be from his home, and was without qualification as to whether he had been heard from or not during the seven years. The charge is in the language of the statute (Rev. Stats, art. 3221) and is correct.” See, also, Nehring v. McMurrian, 94 Tex. 45, 57 S. W. 943.

The facts in this case do not show that Richard Ruedrich left his family to go to another state or another county or town to reside, but he left with the expressed intention of returning on that or the following day. He did not return, and no one testifies to seeing him afterwards, nor was he ever heard from again. These facts easily distinguish this case from such cases as Ross v. Blount, 25 Tex. Civ. App. 344, 60 S. W. 894, and Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S. W. 1060. There is nothing in the Texas statute to require proof of an absence from the state in every instance, but proof of absence from relatives ' and friends, with nothing to indicate that he is living in seven .years, is sufficient. If he disappears for seven years, and his friends, relatives, or acquaintances have no knowledge of where he went, and no message from or about him, the presumption that he is dead is as strong as though he was shown to be beyond the seas. The case of Turner v. Sealock, 21 Tex. Civ. App. 594, 54 S. W. 358, cited by appellant, does not hold differently, but in that case the person whose death was sought to be proved moved from Virginia to Texas, and it was held that evidence that he had not been heard from since he left Virginia was not sufficient to show death. There was nothing to show absence from his home in Texas, and of course, the case was not brought within the terms of the Texas statute. Under the construction of the statute contended for by appellant, if a person disappeared near the line between this and some other state, and he was seen at the line going into the other state and was not heard of again for seven years, he would be considered dead; but if he was seen last going towards the capital of Texas, and was never again heard of, the presumption of his death could never arise. We do not think that the statute is subject to such construction.

The man, Richard Ruedrich, loved his home, his wife, his children, his domestic relations were of the most pleasant character, and no reason was shown for his abandonment of his home and his family, and all the circumstances point to the conclusion that if living he would have returned to them as he promised to do. It is not necessary in order to raise this presumption that the removal should be beyond the seas or even to another state, but if he leaves his home and is gone for seven years, and there is no proof that he was living during that time, it will be presumed he is dead. Jones on Evidence, § 61. The presumption is based on the knowledge that persons will not ordinarily abandon a pleasant home and loved ones, and never communicate with them for a long period. Such conduct is uncommon and abnormal, and when it occurs will form a sufficient basis for the presumption that death has occurred. Appellee went beyond what is required in the statute and proved not only that'her husband had disappeared but that she had sought for him and had others to do so, and had never heard a word of or from him. He passed out of his home and out of his family and social relations as completely as man ever did who had entered his grave. Rumors of him dead, not of him living, had come to his waiting wife and children, and a body, thought by an acquaintance to be Ruedrich’s, was found, but which, on account of decomposition, could not be identified. The evidence meets the rule and raises the presumption that Richard Rued-rich died some time during the seven years after he left his home.

The judgment is affirmed.