author: HALL, J.

text:
    CITIZENS' NAT. BANK OF PLAINVIEW et al. v. SLATON et al.
    (No. 1055.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Evidence i&wkey; 142(2) — Value of Land — Other Lands.
    ‘ As evidence of the value of land, the court properly excluded testimony as to sales of lands and the prices therefor in the same district as the land in controversy, where the witness stated that in his opinion other plains lands in the region were worth a “right smart” more, while the lands the witness knew about having been sold were from seven to nine miles from the land in controversy, and, unlike such land, which had a 40-acre lake on it, were unimproved.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 418, 421; Dec. Dig. &wkey;142(2).]
    2. Adpeal and Error <&wkey;662(3) — Qualification of Bill of Exceptions — Acceptance.
    The facts stated in the trial court’s qualification to a bill of exceptions to the exclusion of testimony must be taken by the Court of Civil Appeals as correct.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 2852; Dec. ’Dig. &wkey;> 662(3).]
    3. Appeal and Error <&wkey;766 — Imperfect Briefing of Assignment — Consideration.
    Where an assignment is not properly briefed, but the same matter is presented under another assignment, it will be considered on appeal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. <©=> 766.]
    4. Fraudulent Conveyances &wkey;>292 — Evidence — Collateral Issue Tending to Show Fraud.
    In suit by the grantee of land to restrain sale on execution against the grantor, defendants were entitled, under their allegation of fraud in the conveyance to prove plaintiff had undervalued certain residence property, as tending to prove that he had overvalued a barn which he had given in part payment for the land, and which he testified he took, together with the residence property, at a valuation of $9,000, while receiving the residence property at only $2,000, since, where fraud is alleged, latitude must be allowed in the admission of evidence tending to establish it.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 857-861; Dec.- Dig. <&wkey;>292.]
    5: Fraudulent Conveyances <&wkey;293 — Evidence — Intent.
    In such suit, the evidence was relevant on the issue of good faith on the part of plaintiff and his grantee in making the exchange.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 862; Dec. Dig. <&wkey;> 293.]
    6. Fraudulent Conveyances <&wkey;291(5) — Value of Property — Market Value.
    Where the value of the property involved in an action to set aside a fraudulent conveyance is in issue, the market value should be the subject of inquiry, providing the property has a market value, and, if there is no market for such property, its intrinsic value may be established.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 856; Dec. Dig. <&wkey; 291(5).]
    7. Fraudulent Conveyances <@=^309(2) — Limiting Finding to Market Value,.
    In suit by the grantee of land' to restrain sale on an execution against the grantor, where there was abundant evidence on the issue of the market value of the property, the court should have given the requested instruction limiting the jury’s finding to such value.
    [Ed. Note. — For other eases, see Fraudulent Conveyances, Cent. Dig. §§ 947, 958; Dec. Dig. &wkey;309(2).]
    8. Fraudulent Conveyances &wkey;>187 — Right of Creditor.
    Where a conveyance was in fraud of creditors, a judgment creditor had the right to subject to payment of his judgment the excess, if any, of the market value of the property conveyed over and above the market value of the property received in exchange by the debtor.
    .[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 593, 594; Dec. Dig. <&wkey;187.]
    9. Fraudulent Conveyances <&wkey;309(7) — Separate Submission of Issues.
    In suit by grantee of land to restrain sale on execution against the grantor, the question of the market value of the grantor’s property and of the property received by him from plaintiff in exchange should have been submitted separately to the jury.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 952; Dec. Dig. <&wkey;> 309(7).]
    10. Fraudulent Conveyances <&wkey;309(4) — Submission of Issues.
    ' In such suit, fraud being charged, the issues of fraudulent intent and of notice should also have been submitted.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 949; Dec. Dig. <&wkey;> 309(4).]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Suit by J. H. Slaton and another against the 'Citizens’ National Bank of Plainview and another. From a judgment for plaintiffs, defendants appeal.
    Judgment reversed, and cause remanded.
    Turner & Rollins, of Amarillo, and C. D. Russell, of Plainview, for appellants. Mathes & Williams, of Plainview, and L. C. Penry, of Ft. Worth, for appellees.
   HALL, J.

February 10, 1913, the Citizens’ National Bank of Plainview obtained judgment in the district court of Hale county, against J. J. Rushing et al., in the sum of $13,240.49, with interest and costs of suit. From this1 judgment Rushing et al. executed a supersedeas bond, with J. L. Overall as one of the sureties. The judgment was affirmed by this court the 29th day of November, 1913. Application for writ of error to the Supreme Court having been refused, on August 18, 1915, the Citizens’ National Bank caused an alias execution to issue to Swisher county, which was levied by the sheriff' on a certain section of land as the property of J. L. Overall. Appellee Slaton obtained an injunction against the Citizens’ National Bank and D. B. Crawford, the sheriff of Swisher county, restraining them from selling the land upon the ground that it belonged to him and the First National Bank of Plain-view, it being alleged that Slaton had an interest amounting to $4,000 in said section, and that the remaining portion was owned by said First National Bank. October 20, 1914, Overall and wife conveyed the section in question to J. H. Slaton, by deed, reciting a consideration of $16,000 cash and. the assumption of the payment of the balance due the state of Texas on the original purchase price and the annual interest thereon at the rate of 3 per cent, per annum from November 1, 1914. On the same date Slaton and wife conveyed to Overall lots 10, 11, 12, 13, 14, 15, and 16 in block 19, in the town of Plainview, for the recited consideration of $16,000, to wit, $14,800 cash and $1,200, evidenced by vendors’ lien notes, payable to J. H. Slaton.

Appellants attack this conveyance from Overall to Slaton on the ground that it was made to hinder, delay, and defraud the creditors of Overall, especially defendant bank in the collection of the aforementioned judgment, asserting the right of the bank to subject the land to the payment of its judgment as the property of Overall. It is further alleged that, when Slaton acquired the deed from Overall and wife to said section, he had full knowledge of all the facts recited in said answer, or was in possession of sufficient facts to put him on notice and inquiry, wMch would have led to a discovery of the fact that Overall was making said conveyance for the purpose of hindering, delaying, and defrauding the bank in the collection of its judgment, alleging the insolvency of Overall; that a deed from Overall to Slaton was a simulated transaction, not intended to be an absolute and unconditional conveyance, but was made with the purpose and intention on the part of Overall and Slaton that the latter should hold the deed in trust for Overall and shield it from the Citizens’ National Bank, said Slaton and said First National Bank well knowing that the defendants Rushing and the sureties other than J. L. Overall did not have property subject to execution sufficient to pay said judgment, and that said bank would be compelled to make said judgment or a large part of it out of the sale of said section of land, or lose its debt, or a large amount thereof; that said section comprised practically all of the property belonging to Overall and subject to execution; that its value greatly exceeded the amount of the debt, if any, owing by Overall to the First National Bank of Plainview, it having been alleged by Slaton and said First National Bank that Overall owed the bank about $3,000. Appellants' further alleged that less than one-fourth of the section would have been sufficient to pay the whole of the indebtedness, and that the value of a certain barn conveyed to Overall by Slaton was greatly less than the value of the section, being., only one-half of the value thereof, and that in accepting the conveyance of the said section of land the vendee did not pay full value therefor, so that the remainder of the value of said land was thereby placed beyond the reach of the creditors' of said Overall, and particularly of the Citizens’ National Bank. Notice and knowledge on the part of Slaton and the First National Bank of Plainview of the fraudulent intent and purpose of Overall and knowledge of facts sufficient to put them on inquiry, which would have led to the truth concerning such fraudulent intent and designs, was also set up.

The trial resulted in a judgment in favor of J. H. Slaton and the First National Bank of Plainview, against the defendants Citizens’ National Bank and D. B. Crawford, as sheriff, perpetuating the injunction restraining them from levying upon and selling, or from attempting to sell, said land under the judgment.

It is urged under the first assignment that the court erred in excluding the testimony of J. F. Moore as to sales of land similar to the section of land in question during the years 1912, 1913, and 1914, and the prices paid therefor. This witness, testifying for appellants, stated that the section of land in controversy was reásonably worth on the market $30 per acre at the time it was conveyed by Overall .to Slaton, in October, 1914. On cross-examination by plaintiffs’ counsel, he was asked as to whether he knew of certain sales of land in Swisher county near the land in controversy, at $15 per acre, and other at less than $25 per acre. On redirect examination appellants’ counsel offered to show that land located no better than the land in controversy, of the same soil, depth to water, and topography, and in every way similar to the land in controversy, had been within the knowledge of said witness during the year 1914 sold at $25 per acre. When the particular lands referred to were mentioned, appellees’ counsel objected because the lands were not of the same character as the section in question in regard to improvements, but were unimproved lands. It is stated in the bill of exceptions that appellants’ counsel then offered and would have proved by the witness that the value of land of the same character as the land in question, without improvements on it, and in the same locality, had been sold during the year 1914 for as much as $25 per acre, and that this testimony was offered in order that the jury might determine the value of the land in controversy by adding the value of improvements thereon. The court appended to the bill the following qualification:

“The witness was asked on cross-examination if he knew of certain sales being made at $15 per acre, and answered no; and it was further asked if there was any difference between this land here located as it is and other plains land near Kress, the same distance in other directions, and the witness stated in his opinion land west and north of Kress was worth a right smart more. The lands the witness knew about a$ having been sold in 1914 were from seven to nine miles from the land in controversy, one sale four and one-half miles west of Kress and the other nine miles east; and the witness would have answered that these lands unimproved sold for $25 per acre. The land in controversy was shown to have a lake, of 40 acres on it, and no proof as to the condition of the other lands as to lakes was asked about, and the question ,as to the values of these unimproved sales were, in the opinion of the court, not a fair test as to the market, value of the land in controversy, since the witness had testified as to the market value of the principal section.”

Appellant insists, upon the authority of certain Massachusetts cases, that he could, prove the value of unimproved lands for the purpose of establishing the value of the land in question, which was shown to have been improved. This question arose in the case of Foster y. Atlir, 181 S. W. 525, Wal-thall, Justice, said:

“The admissibility of the evidence offered, under any circumstances, is at least doubtful. In some jurisdictions it is excluded altogether. The grounds for its exclusion have not always been the same. Some exclude it on direct examination altogether; some hold that its admissibility is a matter of discretion; others still, that such evidence is only admissible on cross-examination, as a test of the means of knowledge of a witness who has testified to the market value on direct examination. We are of the opinion, however, that the Supreme Court, in Chaney v. Coleman, 77 Tex. 100, 18 S. W. 850, recognized the rule that, under a proper predicate, such evidence is admissible.”

The Chaney Case seems to be the last opinion by the Supreme Court discussing the question. That court said:

“It is not readily seen how its value can be correctly shown by comparing it with others, as was proposed to be done by the defendant in this case. The farm in question was an improved one, and was valued in the trade as such. Before a value can be given to it by proving the average value of farms in that vicinity, it should be proved that the improvements and other things to be considered in estimating its valúe correspond with like things and the farms with which it is classed.”

The facts stated in the court’s qualification to the bill must be taken by us as correct. If so, it was not error to exclude the testimony. H. B. & T. Ry. v. Wilson, 176 S. W. 907; City of Ft. Worth v. Charbonneau, 166 S. W. 887; Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S. W. 68; Sullivan v. Ry. Co., 29 Tex. Civ. App. 429, 68 S. W. 745; Newbold v. Railway Co., 34 Tex. Civ. App. 525, 78 S. W. 1079; Kirby v. Ry. Co., 39 Tex. Civ. App. 252, 88 S. W. 281; H. B. & T. Ry. Co. v. Dooley, 160 S. W. 594.

By their second assignment, appellants insist that the court erred in excluding the testimony of the witness J. A. James, with reference to a material change in the value of lands in his vicinity during the years 1912, 1913,’ and 1914. Reference to the statement of facts shows that this question was asked and answered by the witness on cross-examination. It appears that, prior to the transfer of the section of land in question by Overall, Slaton and the First National Bank had received from one of the creditors of the bank certain residence' property, together with a barn, in Plainview. In the deal between Overall and Slaton this barn was part of the consideration for the section of land conveyed by Overall. Slaton testified that he valued the residence property at only $2,-000 and the barn at $9,000. The witnesses Boswell and Galloway were offered for the purpose of showing the value of the residence property. Appellants insist that it is greatly to the interest of appellee to inflate and exaggerate the value of the barn and to underrate the value of the residence property as much as possible, and, in order to show that Slaton was endeavoring to do this, they sought to establish the real value of the residence property by said witnesses. Upon objection, this testimony was excluded. The assignment based upon the exclusion of Boswell’s testimony is not properly briefed, but since the same matter is presented under the fourth assignment, based upon the exclusion of Galloway’s testimony, we will consider it. It will be remembered that fraud is specifically charged by the appellant and where fraud is alleged great latitude must be allowed in the admission of evidence tending to establish the charge. The value of the residence property, it is true, is in a sense a collateral issue; but as said in 10 R. C. L. 927, § 91:

“It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it. * * * It is well settled that, if the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. It would be a narrow rule, and not conducive to the ends of justice, to exclude it on the ground that it did not afford full proof of the nonexistence of the disputed fact. Evidence upon a collateral issue may be relevant if the fact which it tends to establish will tend to prove or disprove the fact in issue.” Horton v. Reynolds, 8 Tex. 284; Day v. Stone, 59 Tex. 612.

While the residence property was not included in this trade, the issue sought to be established was that the value of the section of land conveyed by Overall was greatly in excess of the value of the property conveyed to him in exchange therefor, a part of which was the barn in question. Appellants insisted, and had the right to introduce all relevant testimony to sustain their contention, that the bam was not really worth $9,000. To establish its value, Slaton had testified that he had received it, together with the residence property, from one of the bank’s debtors at a valuation of $9,000, while the residence property had been received in the same transaction at only $2,000. We think under their allegation of fraud the appellants were entitled to prove by direct and circumstantial evidence that Slaton had overvalued the bam, and proof that he had undervalued the residence property was a collateral fact tending to sustain their contention. Moreover, the evidence was relevant upon the issue of good faith, on the part of both Overall and Slaton, in making the exchange.

In the case of Torrey et al. v. Cameron et al., 73 Tex. 583, 11 S. W. 840, the trial court charged the jury that the value of the property was “what it would sell for cash in the ordinary course of trade in the manner in which property is ordinarily sold in this market,” and this charge was approved. We think where the value of the property, involved in an action to set aside a fraudulent conveyance, is in issue, the market value should be the subject of inquiry, provided the property has a market value, and, in the event there should be no market for such property, then its intrinsic value may be established. There seems to have been abundant evidence in this case upon the issue of market value, and the court should have given the requested instruction limiting the finding of the jury to such value. If the conveyance was in fraud of creditors, appellant bank had the right to subject the excess, if any, in the market value of the real and personal property conveyed by Overall, over and above the market value of the property conveyed by Slaton, to the payment of the judgment, and the question of the market value of the respective properties should have been submitted separately to the jury. Fraud being charged, the issues of fraudulent intent and of notice should have also been submitted. The court erred in refusing special charges requested by appellants submitting such issues.

The judgment is reversed, and the cause remanded.
      <S=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered'Digests and Indexes


source: Caselaw Access Project

author: FDT, C. J.

license: Public Domain

text:
    FIRST NAT. BANK OF PHARR v. SAN JUAN STATE BANK.
    (No. 5728.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1916.)
    1. Banks and Banking &wkey;>155 — Pbomise to Pax Check — Sufficiency of Evidence.
    In an action by one bank against another to recover on a check, drawn by defendant bank’s depositor, which defendant stated was good and promised to pay, evidence held sufficient to support the court’s finding that there was an unconditional promise on defendant’s part to pay the check.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 536-538; Dec. Dig. <&wkey;> 155.]
    2. Banks and Banking <@=ol40(l) — Promise to Pat Check — Duty oe Promisor Bank.
    Where a bank promised another bank to pay its depositor’s check, when the check was actually presented to the promisor bank it should have been paid, and the bank was liable for its failure to pay.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 380, 394-397; Dec. Dig. &wkey;140(l).]
    Appeal from Hidalgo County Court; W. H. Gossage, Judge.
    Suit by the San Juan State Bank against the First National Bank of Pharr. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Kibbe, Polk & Perkins, of Brownsville, for appellant. Jno. P. Gause, of Mercedes, for appellee.
   FDT, C. J.

This is a suit for $295.95, instituted by appellee against appellant. A trial by the judge without a jury resulted in a judgment for appellee in the sum sued for, with interest at 6 per cent, per annum from January 1, 1915.

The facts show that on October 15, 1914, J. M. Herbert, desiring to obtain money from appellee, drew his check on appellant for $295.95; that appellee at once communicated by telephone with appellant, and the latter stated that the cheek was good, and that appellant would pay it. Appellant, when the check was presented, about eight days after it was drawn, refused payment. Herbert had money in appellant’s bank sufficient to pay the check when it was drawn. These facts are supported by the testimony of witnesses for appellee, but a witness for appellant testified that payment of the cheek was conditioned on appellee sending the check directly to appellant, which was not done. The check passed through the hands of two or more banks before it reached appellant

The court found, and his finding is supported by the testimony offered by appellee, that there was an unconditional promise on the part of appellant to pay the check, and although that testimony was contradicted by testimony offered by appellant, the court exercised his right under the law to accept the testimony offered by appellee and reject that offered by appellant. The finding is amply supported, not only by the testimony of the bookkeeper, but the other facts and circumstances surrounding the transaction. The evidence of appellee fully and squarely contradicts that of appellant.

The first and second assignments of error are based on the premise that the evidence of appellant should be taken as true, contending that it was not contradicted by the testimony of appellee. The record fails to sustain the contention, and the assignments of error are overruled.

The third and fourth assignments of error are overruled. The court was right when he held “that when the check was actually presented to defendant’s bank it ought to have been paid.” The promise had been made to pay it, and the court very properly concluded that the promisor should be compelled to make good a promise that it was seeking to breach.

The judgment is affirmed.
      <@x»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    WOODLEY v. PIKE.
    (No. 1033.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1916.)
    1. Appeal and Erbob <&wkey;722(l) — Assignments OP ERROR.
    Assignments of error cannot be considered where there is no compliance with Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that assignments in motions for new trial shall constitute the assignments on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dec. Dig. &wkey;722(l)J
    2. Appeal and Error <&wkey;719(4) — Assignments op Error — Fundamental Error.
    Error in litigating an issue involving an element of recovery not pleaded is fundamental, and may be reviewed, though not assigned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2973, 3490; Dec. Dig. <&wkey; 719(4).]
    3. Judgment <&wkey;18(2) — Pleadings to Sustain.
    The petition of a lessee, seeking to recover a sum of money which he claimed was due him as the proceeds of his one-half share of wheat raised on the demised premises, alleged that approximately 4,400 bushels were raised which was sold for $3,900, and that there was due him the sum of $500. The lessor counterclaimed, and on cross-examination the lessee testified that he received only $800 cash for the wheat. He was shown a check drawn by lessor payable to his order, which had been paid, and he testified that such check represented the proceeds of his one-half share of wheat in an elevator, but did not involve the matter in controversy. There was a judgment for the lessee. Held that, though the evidence showed that the crop sold for more than was alleged in the petition, the judgment was not objectionable on the ground that recovery was based on an element of recovery not pleaded, for the lessor, having introduced the check in support of his defense and counterclaim, cannot complain that the iessee explained that it related to another transaction.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 36; Dec. Dig. &wkey;>18(2).]
    Appeal from Wheeler County Court; M. M. Miller, Judge.
    Action by W. L. Pike against E. L. Wood-ley, who counterclaimed. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. B. Hill and J. B. Clark, both of Shamrock, for appellant. M. Reynolds, of Shamrock, for appellee.
   HENDRICKS, J.

Pike sued Woodley for the sum of $501, alleged to be due on a breach of rental contract in regard to a certain wheat crop. The claim was that the defendant, Woodley, was to furnish the land, teams, tools, and feed for the teams, the plaintiff to furnish the labor, but the costs for thrashing were to be divided equally between landlord and tenant; that the defendant was to receive the usual and customary rent, alleged to be one-half of the crop. It is further alleged that approximately 4,400 bushels of wheat were produced upon the land which the defendant, Woodley, the landlord, sold for $3,904.04, one-half of which was due the plaintiff, with the exception of $800 paid by defendant to plaintiff, after the sale of the wheat, and $651, which plaintiff admitted that he owed the defendant, leaving an actual balance, according to the allegations, of $501 owing by defendant. Quoting from appellant’s brief:

“Defendant denied there was ever any rental contract, and further says that he made advances to plaintiff in the sum of $1,673.09, all of which was incidental to the transaction; that the total amount paid the plaintiff by defendant was $2,473.09, whereby appellant asks for judgment against appellee in the sum of $521.07.”

The principal ground of alleged error, the best we are able to ascertain, seems to be based upon the following condition: The plaintiff, Pike, while on the witness stand, and under cross-examination by appellant’s counsel, answered that $800 was all he received in actual money for the wheat. He was then handed a check for the sum of $367.76, shown to have been made by Woodley, payable to Pike, and which had been paid, and with reference to which the appellee answered that it was for undivided wheat which they had in the elevator, and which represented the purchase price of his (Pike’s) interest in the same. He further answered that this check had nothing to do with the matter under investigation. Again, on redirect examination, Pike’s counsel asked him about this particular check for $367.76, and the plaintiff answered that it represented another and different division of wheat not included herein, and to which defendant objected that this amount, or matter, was not pleaded in plaintiff’s petition. Appellant’s assignments are wholly insufficient for many reasons, the principal of which is that article 1612, as amended by chapter 136 of Acts of the 33d Legislature (providing that the assignments in the motion for new trial shall constitute the assignments on appeal), is not complied with; but, as an issue litigated and found upon, and not pleaded, when an element of recovery, constitutes fundamental error, the matter is reviewed. It is noted that the defendant in order to set up a counterclaim pleaded generally advances and payments in which the particular check was intended to be included though not specifically mentioned in order to reach the result, as a balance, sued upon. Of course, the element developed the fact that the entire crop sold for more than alleged in plaintiff’s petition, but the matter of settlement affecting the sum of $3,900, collected by defendant upon plaintiff’s petition, only was involved — not so much how many bushels of wheat were sold, but was plaintiff really entitled to any part of the $3,900 mentioned? "When appellant introduced the particular check entering into his counterclaim, appellee had the right to show it was no part of the $3,900 and represented the division and purchase of different wheat, which the $3,900 represented, and could show it under the general denial, and especially considering the agreement made as to objections.

Appellant seems to entertain the view that, because appellee pleaded that 4,400 bushels of wheat brought the $3,900 actually received by appellant for a part of the wheat, it would cut him off from showing, though in rebuttal of defendant’s counterclaim, that the $3,900 was all the 4,400 bushels of wheat brought, and that appellant could charge ap-pellee with the check and thereby reduce the latter’s demand, and include the amount, represented by the check, in the $3,900 charged to have been received and as to which ap-pellee was attempting to make appellant account. The trial court pursued the legal course.

We are unable to consider any of the remaining assignments as such, and the judgment is affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. v. DEAN.

    (No. 627.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 9, 1916.)
    Master and Servant <&wkey;351 — Injuries to Servant — Employers’ Liability Act — Right op Action.
    Under Employers’ Liability Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246i]) § 3, providing that “the employees of a subscriber shall have no right of action against their employer for damages for personal injuries, * * * but shall look solely for compensation to the Texas Employees’ Insurance Association,” where plaintiff entered defendant’s employ with notice that defendant had a policy with the Texas. Employees’ Insurance Association, and under a written agreement waiving his right to maintain suit against defendants for personal injuries, and agreeing to look to the association, he had no right of action against defendant for personal injuries while in its employ.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. &wkey;>351.]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Action by J. D. Dean against the Consolidated Kansas City Smelting & Refining Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Lea, MeGrady & Thomason, of El Paso, for appellant. Weeks & Vowell, of El Paso, for appellee.

      Application tor writ of error pending in Supreme Court.

   HARPER, C. J.

Appellee sued appellant for damages for personal injuries received while in its employ through its negligence on August 8, 1915. A trial by jury, verdict, and judgment for appellee for $6,000. There are a number of assignments of error, but there is one question that is conclusive of appellee’s right to maintain this action, viz. The appellant, as a defense, pleaded that as an employer, it had complied with the requirements of the Employers’ Liability Act* enacted by the Thirty-Third Legislature, chap. 179, General Laws, p. 429. The appellee, in reply, charged that the act is unconstitutional and void. Since this suit was filed, the Supreme Court of Texas has declared the act to be in all its provisions constitutional.

The evidence is uncontradicted that appellant was entitled to and held a policy in the Texas Employees’ Insurance Association, as created and permitted to do business under the said above act. That appellee entered appellant’s employ with actual notice of such facts, and that he entered the employment under written agreement that in ease he received injuries in such employment, he thereby waived his right to maintain a suit against appellant, and agreed to look to the association for his compensation.

Section 3 of said act provides that:

“The employees of a subscriber shall have no right of action against their employer for damages for personal injuries, * * * but such employees * * * shall look for compensation solely to the Texas Employees’ Insurance Association as the same is hereinafter provided for.”

It would extend this opinion to too great length to copy this act and serve no good purpose. Reference is therefore made to Middleton v. Texas Power & Light Co., 178 S. W. 956, wherein its provisions are more fully set out, and to the same case in 185 S. W. 556, which contains the opinion of the Supreme Court of Texas, above cited.

The appellee had no right of action against the appellant, and the court erred in ignoring the defense so pleaded and proven in submitting the cause to the jury as complained of by appellant by appropriate assignments.

The cause will therefore be reversed and rendered for appellant without prejudice, however, to any claim appellee may have against the insurance association.
      CfeoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    PHILLIPS v. FAIRCLOTH.
    (No. 5696.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1916.)
    1. Appeal and Error &wkey;>80(l) — Decisions— Reviewable — Finality op Determination.
    An order of the trial court sustaining a joint plea in abatement on the ground of misjoinder of causes of action as to one defendant, and overruling it as to the other defendant, not being a final judgment disposing of the controversy, is not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 503, 505-509; Dec. Dig. <&wkey;>80(l).]
    2. Appeal and Error &wkey;>753(2) — Record — Briefs — Assignment op Error.
    Where neither appellant’s brief nor the transcript contains any assignment of error, and no fundamental error has been pointed out or discovered, judgment will be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3088, 3089; Dec. Dig. <§=» 753(2).]

      Appeal from Robertson County Court; J. L. Goodman, Judge.
    Suit by Z. P. Phillips against Jeff Pair-cloth and another. Prom an order sustaining a joint plea in abatement as to defendant A. L. Bates, but overruling it as to named defendant, named defendant appeals.
    Appeal dismissed.
    K. W. Gilmore and H. S. Morehead, both of Franklin, for appellant. Perry & Woods, of Franklin, for appellee.
   KEY, C. J.

Appellant brought this suit against Jeff Paircloth and A. L. Bates. The defendants filed a joint plea in abatement, alleging that there was a misjoinder of causes of action and of parties defendant. The trial court sustained that plea as to Bates, but overruled it as to the other defendant, and the record does not show that any further proceedings were had in the case.

The appellant has attempted to appeal from the order of the court referred to, but we feel compelled to hold that such appeal is not permissible, and therefore this court has no jurisdiction. With certain exceptions, specified by statute, the appellate courts of this state have no jurisdiction of an appeal until a final judgment has been rendered, and a judgment is not final unless it disposes of all the parties and all the issues shown by the pleading; and it is provided by statute that there can be but one final judgment in a case. The judgment sought to be appealed from is not final because it does not dispose of the controversy between the plaintiff and the defendant Fair-cloth, and therefore this court has no jurisdiction to entertain the appeal.

But if the appeal ought to be entertained, we are of opinion that the judgment should be affirmed because neither appellant’s brief nor the transcript contains any assignment of error, and no fundamental error has been pointed out or discovered.

Appeal dismissed.


text:
    BARKER et al. v. WILSON.
    (No. 5818.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1916.)
    1. Appeal and Error 4&wkey;131 — Appealable Order.
    Except in cases made exceptions by statute, an order made in vacation by a district judge is not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 895; Dec. Dig. <&wkey;>131.]
    2. Appeal and Error <&wkey;376 — Appeal Bond —Order Granting or Refusing Injunction.
    Where an election contest petition prayed injunction against the county judge and other members of the commissioners’ court of the county, and from dismissal of such petition appeal was sought upon an appeal bond payable to the contestee alone, against whom no injunction was sought, the appellate court was not given jurisdiction over the appeal by the statute l authorizing an appeal from an interlocutory order refusing an injunction, since the parties against whom the injunction was sought were not named as payees in the appeal bond.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2011-2016; Dec. Dig. <&wkey; 376.]
    3. Elections &wkey;>275 — Contests — Jurisdiction of Judge in Vacation.
    The constitutional provision conferring jurisdiction over contested elections upon the district court is exclusive, and a district judge has no jurisdiction to determine an election contest in vacation.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. ■§§ 250-256; Dec. Dig. &wkey;275.]
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    Election contest by L. W. Barker and others against A. B. Wilson. From an order of a judge, contestants appeal.
    Appeal dismissed.
    Walker & Burleson, of San Saba, for appellants.
   KEY, C. J.

In May of the current year an election was held in school district No. 22 of San Saba county, to determine whether or not there should be issued bonds in the sum of $10,000, for the purpose of building a schoolhouse in that district. The election resulted in favor of the proposition, and L. W. Barker and others filed a petition in the district court of San Saba county for the purpose of contesting that election. As required, by statute, A. B. Wilson, the county attorney, was made contestee; and, without formally making them parties, the contestants prayed for an injunction against the county judge and the other members of the commissioners’ court of San Saba county, to prevent them from declaring the result of the election. Wilson, the contestee, filed an answer which included certain exceptions to the petition.

The record shows that the Hon. N. T. Stubbs, judge of the Thirty-Third judicial district, which includes San Saba county, tried the case in vacation on the 29th day of July 1916; that he sustained one of the exceptions; held that the district court of San Saba county had no jurisdiction, because of the fact that proper notice of the contest had not been served upon the contestee within 30 days after the election was held, and for that reason refused to grant the injunction; and dismissed the case.

The contestants have brought the case to this court upon an appeal bond payable to A. B. Wilson, the contestee, alone. We have reached the conclusion that this court is without jurisdiction, and the appeal has been dismissed for the following reasons:

1. The appeal is not from a judgment rendered by any court, but from an order made in vacation by a district judge. With, certain exceptions, specified by statute, there can be no appeal except from a final judgment rendered by a court. The record shows that the order from which this appeal is prosecuted was made by a judge in vacation, and not by any court; and therefore, unless it comes within one of the esceptions, contestants have no right of appeal, even though the order may be absolutely void.

2. While the statute authorizes an appeal from an interlocutory order appointing a receiver, or granting or refusing an injunction, and while the order appealed from refused to grant an injunction, the parties against whom the injunction was sought are not named as payees in the appeal bond, and therefore this court is without jurisdiction as to that feature of the case.

In conclusion we deem it proper to say that if the suit be treated only as a contest of an election, then the trial judge had no authority to try it, or pass upon any question in it during vacation. The Constitution of this state having conferred jurisdiction over contested elections upon the district court, our Supreme Court has held that the constitutional provision referred to is exclusive, and that the Legislature has no power to confer jurisdiction upon a district judge to determine an. election contest in vacation. Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 535, Ann. Cas. 1913A, 699. Hence it follows that while Judge Stubbs may have had jurisdiction to grant or refuse a temporary injunction in vacation; he was without authority to pass upon any other question; and, when due service has been had upon the county judge and the commissioners’ court, appellants will have the right to have the case tried by the district court of San Saha county.

Appeal dismissed.
      @s»For other cases see same topic and KEY-NUMBER in all-Key-Numbered Digests and Indexes -