author: BOYCE, J.

text:
    RICE v. GARRETT.
    (No. 1144.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 18, 1917.
    Rehearing Denied May 2, 1917.)
    1.Master and Servant <©=>358 — Workmen’s Compensation Act — Notice to Employé.
    Workmen’s Compensation Act, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 524⅜, provides that employés of a subscriber shall look for compensation for injuries solely to the Texas Employers’ Insurance Association. Articles 5246x and 5246xx provide specifically that every subscriber upon securing a policy shall give notice thereof in writing or print to his employ-és, also that upon ceasing to be a subscriber he shall give like notice, and also that he shall give such notice to all persons with whom he is about to enter into a contract of hire. Article 5246h provides that, in actions for personal injuries sustained by an employé against an employer who is not a subscriber, it shall be necessary to a recovery to prove negligence of such employer or some agent or servant of such employer acting within the general sbope of his employment. Held that, if the notice is not given, liability is imposed as if the employer were not a subscriber.
    2. Master and Servant ®=j358 — Workmen’s Compensation Act — Notice to Employé— Evidence.
    As Workmen’s Compensation Act, Verno.n’s Sayles’ Ann. Civ. St. 1914, arts. 5246x and 5246xx, provide that notice to an employé that the employer has secured a policy shall be “in writing or print,” employer when sued for an injury should show that notice in writing or print was given, or that the employé waived such notice.
    3. Master and Servant ®=»358 — Injuries to Servant — Workmen’s Compensation Act —Notice to Employé — Statute—Construction.
    Workmen’s Compensation Act, Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246x and 5246xx, provide that a “subscriber” shall give notice that he has provided for the compensation for injuries with “the association,” and article 5246yyyy provides that any insurance company, which term shall include mutual and reciprocal insurance companies, lawfully transacting a liability or accident business within the state, shall have the same right to insure the liability to pay the compensation provided for by the act, and, when such company issues a policy, the holder shall be regarded as a subscriber, so far as applicable under the act, and the company insures such payment of compensation and shall be subject to certain provisions of the act enumerated. Article 5246yyy defines the word “association” as meaning not only the Texas Employés’ Association, but any other insurance company authorized to insure the payment of compensation to injured employes. Held, that the provision of articles 524Sx and 5246xx, requiring that the person taking insurance shall be regarded as a subscriber so far as applicable under the act, fixes the duty of the insured, so that the statute requires employers taking either class of insurance to give notice required by such articles.
    4. Master and Servant <©^>358 — Action for Injuries — Election of Remedies.
    Where an employé brought suit at common law against -his employer for personal injuries received in the course of his employment, he made an election, and the fact that he subsequently presented a claim to the accident board did not estop him from prosecuting the suit based on his common-law remedy.
    5. Master and Servant @^264(13) — Action for Injuries — Pleading—Variance.
    In servant’s action for injuries caused by strain received in carrying heavy timber with others, where the petition alleged that the timber weighed 1,000 pounds, proof that the timber weighed from 350 to 700 pounds was not a variance, since the weight of the timber given in the petition -and as given in the testimony was in each case only an estimate, and was only a collateral fact in determining the ultimate issue as to whether the timbers were too heavy to be safely carried by four men over the ground where they were to be moved.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 873.]
    6. Master and Servant <©^>286(27) — Injuries to Servant — Evidence—Sufficiency.
    In a servant’s action for injuries resulting from a strain received in carrying a heavy timber with others in which it appeared that plaintiff made a protest, before carrying the timber, but had no thought of sustaining an injury, evi-. clence held, to Justify submission of question of defendant’s negligence to the jury.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1032.]
    7.’ Tbial <⅜^352(1) — Injuries to Servant-Special Issue.
    Action of court in submitting the issue, “Did plaintiff sustain the injuries or any of them, alleged in his petition?” was not erroneous, in that it does not limit the time or place where said injuries happened or occurred.
    [Ed. Note. — For other cases; see Trial, Cent. Dig. § 840.]
    8. Tbial ⅞⅛=>352(5) — Injuries to Servant — Special Issue.
    Action of the court in submitting an issue requesting the jury to find whether defendant’s foreman required plaintiff to. carry the timber with rubbish on the ground, as alleged in petition, was not erroneous as submitting two questions of fact in the same issue, since the issue submitted was the substance of the charge and the ultimate fact to be proven.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 841.]
    9. Trial <g^351(5) — Special Issues —Requests.
    Refusal to submit special requested issues sufficiently covered by submitted issues was not erroneous.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 834.]
    10. Trial <s=s>352(5) — Review — Special Issues.
    A submitted special issue, “If the defendant or his foreman did make the requirements or order inquired about in the third special issue, was it negligence of the defendant to do so?” was not objectionable as intermingling one issue with another.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 841.]
    11. Trial <s^>133(6) — Argument op Counsel —Action oe Court.
    'Plaintiff’s attorney in his argument stated that defendant would not have to pay any judgment rendered against him, but that the insurance company would have to pay it. On objection, the court charged the jury that the argument was improper and instructed them not to consider it, and the attorney withdrew his statement. The policy was in evidence, so that the facts which were the basis of the statement were before the jury, though the insurer’s liability was not in issue. Held, that the verdict will not be regarded as the result of such improper statement; the amount awarded not being larger than the evidence would warrant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316.]
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Suit by H. R. Garrett against W. M. Rice. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Veale & Lumpkin, of Amarillo, for appellant. L. C. Barrett and J. N. Browning, both of Amarillo, for appellee.
   BOYCE, J.

This suit was brought by ap-pellee, Garrett, against appellant, Rice, to recover damages, in the sum of $20,000, for personal injuries alleged to have been sustained by appellee while working for appellant, who was a contractor, engaged in the erection and repair of buildings, employing some 15 or 20 men. Appellee alleged that, under the direction of appellant’s- foreman, he and three other men' attempted to carry a heavy timber over ground covered with rubbish, and while so engaged wrenched and strained his back, dislocating the vertebra, which resulted in permanent injury. Appel-lee alleged further that said piece of timber was too heavy for four men to carry safely over the ground where they were ordered to carry the same, and that protest was made to the foreman in charge of the work to that effect, but who assured the men that they could carry the timbers and commanded them to proceed to do so; and that defendant was negligent in requiring the plaintiff to lift and carry said timber under the conditions existing. A trial resulted in judgment for plaintiff, from which this appeal is taken.

The appellant, Rice, filed a plea in abatement, in which it was alleged that he was a “subscriber” under the Workmen’s Compensation Act, Vernon’s Sayles’ Civil Statutes, articles 5246h to 5246zzzz, having in accordance with the provisions of article 5246yyyy procured insurance with the ■ American Indemnity Company to protect his employés in lieu of becoming a member of the Texas Employers’ Insurance Association, provided for by said act; that appellant had given ap-pellee the notice required by said law that he had provided for compensation for injuries to his employés and had complied with the law so as to entitle him to the benefits thereof. Wherefore, he alleged that under the provisions of article 5246i he was not liable to suit for damages resulting from the alleged injury. It was shown that appellant, at the time of the accident, had a policy issued by the American Indemnity Company, providing the insurance referred to in article 5246yyyy, and the question presented for decision on the plea in abatement was whether it was necessary for appellant, in order to escape personal liability for the alleged damages, to show that Garrett had notice of such fact, and'whether he in fact did have notice.

Appellee was a day laborer and had begun work for appellant only on the morning of the alleged accident. He was not given any personal written notice of the fact that appellant had taken insurance under the act, and the preponderance of the testimony seems to be that no written or printed notices to this effect were posted on the premises where the work was being done. Appel-lee had worked for appellant occasionally before this time; the last occasion before this being in November, 1915, prior to the date of the alleged accident on January 31, 1916, at which time appellee worked for appellant about 36 hours at the courthouse building at Vega, Tex. He also worked for appellant for a few days once before on such building, and also on two other buildings prior to the time he worked on the courthouse at Vega; the length of time he worked on these jobs not being shown. Appellant testified that he had notices of the fact that he had provided insurance under the compensation act posted up at each of these premises other than the premises at which the accident occurred, though some of the employés working on the Vega courthouse denied having seen any notices there. The appellee denied that he had ever seen any notices posted on any of the premises where he worked for appellant, and testified that he did not know that Bice had insurance. A few 'days after the accident, appellee inquired of appellant, Bice, if he did not have insurance. On trial of the plea in abatement, with the case on its merits, the court submitted the following special issue to the jury:

“Did the plaintiff receive written or printed notice before the said plaintiff was injured, if he was injured, to the effect that defendant had provided for payment of compensation, etc.?”

The jury answered this issue in the negative, and the court thereupon overruled the plea in abatement.

Appellant, by his first six assignments, the tenth assignment, and twentieth assignment, contends that no notice to appellee that appellant had provided for compensation for injury under the act was necessary; and by his eighth and ninth assignments complains of the action of the court in limiting the issue of notice as submitted to written or printed notice, and refusing to submit an issue as to whether the plaintiff “knew from any source, prior to the time he went to work for defendant,- that the defendant had such insurance.”

A consideration of the Workmen’s Compensation Act referred to, and the analysis thereof, as found in the opinion of the Supreme Court, in the case of Middleton v. Texas Power & Light Co., 185 S. W. 556, discloses, we think, that it was the intention of the Legislature to make it what is commonly known as elective, as to the employer and also the employé, in a limited sense. Many states have in recent years adopted legislation of this character, and, on account of the radical change made by” the pro- - visions of such acts in the rights and liabilities of employer and eihployé, as determined by the prevailing principles of common law and statutory law in force prior thereto, there was evidently some doubt in the minds of the legislators and of the courts as to the constitutionality of a law that would be compulsory. But it was generally recognized that, if the parties were given the opportunity of election or rejection of the provisions of the act, there would then be no constitutional objection, because upon such election the provisions of the law would become a part of the contract of employment and the rights of the parties resulting might properly ■ be governed thereby. Honnold on Workmen’s Compensation, §§ 20, 21; Workmen’s Compensation Acts, a Corpus Juris Treatise Becently Issued, §§ 2-6 ; Math-ison v. Minneapolis St. By. Co., 126 Minn. 286, 148 N. W. 71, L. B. A. 1916D, 412; Al-banese v. Stewart, 78 Mise. Bep. 581, 1S8 N. X. S. 942. It is stated by Honnold that of 84 acts of the several states and territories of the United States 25 are elective as to private employers and 9 compulsory. The Texas act is strictly elective as to the employer, but election as to the employé is only as to acceptance or rejection of employment by one who may or may not be a subscriber. If the employment is accepted from a subscriber with the notice provided by law that the employer is a subscriber, the em-ployé then has no further election — different in this respect from the statutes of some states which provide that even then the em-ployé may give the employer written notice, that he will not be bound by the provisions of the compensation act, and in such instances it will not be operative as to him. Ordinarily, of course, as under our statute, there is no difficulty in ascertaining whether the employer has elected to become subject to the provisions of the act; for, of necessity, his election is evidenced by records from which the fact may be readily ascertained and proven. The matter of evidencing the election of the employé, however, it will be readily seen, presents more practical difficulties. The employés of a particular employer are changing from time to time, many may work but a day or two, others for years, and usually the contract of employment isi verbal and most of its terms implied. The compensation acts of many of the states provide that unless the employé, when he accepts service, gives written notice himself that he will not be bound by the provisions of the compensation act, he will be held to have waived his right to recover under the common law. The statutes of other states provide that the employer shall give notice to the employé of the fact that he himself has taken advantage of the provisions of the-act, and if after such notice the employé accepts employment, or continues in the service, he will be conclusively held to have elected also to be subject to the act. Some statutes provide for- the specific manner of giving notice; for instance, posting thereof on the premises of the employer. Daniels v. Charles Boldt Co. (W. Va.) 88 -S. E. 613. In all elective acts, however, there is some provision of the statute prescribing the manner in which the employé is put upon his election. These provisions are necessarily important because the election enters into the contract of employment, and the liability is widely different in case an employé has accepted under the act, from that in the event he has-not. '

While article 5246i of our statutes provides absolutely that “the employes of a subscriber shall have no right of action against their employer for damages for personal injuries * * * but * * * shall look for compensation solely to the Texas Employes’ Insurance Association,” articles 5246x and 5246xx provide specifically that every subscriber upon securing a policy shall give notice in writing or print to his em-ployés that he has provided for payment of compensation for injuries with the association; also, that upon ceasing to be a subscriber he shall give like notice to his employés, and also that a subscriber shall give such notice to all persons with whom he is about to enter into a contract of hire. While there is no specific statement in the statute of the result of the failure on the part of the employer to give the notice, it was the evident intent of the Legislature,' in prescribing for such notice to the employé under the varied circumstances stated in the statute, to provide this means of putting the employé upon his election, giving him the opportunity, after notice, of accepting or rejecting the employment: If the notice is not given, it would seem that the liability imposed by article 5246h, as if the employer were not a subscriber, would enter into the contract of employment and determine the rights of the parties. If the notice is given, then the liability is determined by the other provisions of the compensation act. Any other holding would defeat the entire plan of the act, as it would appear that the Legislature had in mind from a consideration of the history of such legislation and as it has been construed by the Supreme Court. As notice then determines the question of the election of the employe, and so vitally affects the liability of the parties entering into the contract of employment in the event of injury to the employé, and the statute itself has provided that the notice which thus forms the basis of a liability different from what it would otherwise be, shall be “in writing, or print,” it seems to us that the employer, in order to establish the election of the em-ployé and that the contract of employment was thus made subject to the terms of the compensation act, should show that the notice in writing or print was given or that the employé waived such notice — there is no question of waiver in this case. It would require a very liberal construction of the act to hold that a provision for notice in writing or print which was intended as the foundation on which the contract of the parties was to rest could be satisfied by showing facts from which it might possibly be inferred that notice of some sort had been acquired from sources and in a manner other than that provided by the statute. It seems reasonable that the Legislature had in mind the importance of some kind of notice that might be shown with reasonable certainty, ,so that the standard of liability in case of injury might be established by a character of testimony that would leave the matter in less doubt than it would be if the fact of notice were made the result of the determination of a question of actual notice which might be established by circumstances and inferences. In order to hold that any other character of notice is sufficient, we would have to read something into the statute, adding to its express terms, repeated in a number of ways. We do not feel inclined to do this.

The Court of Civil Appeals at San Antonio has recently decided, 'in the case of Kamp-mann v. Cross, 194 S. W. 437, not yet officially reported, that notice to the employé is necessary in order to free the employer from general liability, though the question as to whether or not actual notice might be shown in other ways than that provided by the statute was not decided.

In the case of Young v. Duncan, 218 Mass. 346, 106 N. E. 1, it was held, under the Massachusetts statute, that a provision for notice by the employer to the employé was directory. However, the Massachusetts statute contained an express provision that the em-ployé should be held to have waived his right of action at common law if he had not, at the time of his contract of hire, given the employer notice in writing that , he claimed such right, and this provision of the statute was held to be independent of the provision that the employer should give notice and was given controlling effect. In the case "of Daniels v. Charles Boldt Co. (W. Va.) 88 S. E. 613, it was held by the court, under the West Virginia statute, that actual notice was sufficient though the manner of posting notices on the premises by the employer, as prescribed by the act, had not been followed. An examination of the provisions of the act of West Virginia, however, shows that it was provided thereby that the continuation in the service of an employer with notice should be deemed a waiver by the employé of his common-law right of action. A subsequent section of the act provided that the employer should post notices in conspicuous places about his place of business, and that the same, when so posted, should constitute sufficient notice of his election. Under these provisions of the West Virginia statute, we do not consider the case as controlling.

The other cases relied on by appellant are mostly on tlie question of notice of the accident, holding that written notice of the accident is not necessary where the employer has actual notice. A reading of the cases cited, however, discloses that even in those cases the holding was based on some provision of the statute to the effect that in such cases actual notice was sufficient.

Appellant contends that, even if the statute generally requires notice by the employer, it is not applicable to one who is not a subscriber to the Texas Employés’ Association, hut who has taken' out insurance in some insurance company, in lieu thereof, relying in support of this position upon articles 5246x and 5246xx, which provide that a “subscriber” shall give notice that he has provided for the payment of compensation for injuries with “the association”; and article 5246yyyy, which provides that:

“Any insurance company, which term shall include mutual and reciprocal insurance companies lawfully transacting a liability or accident business within this state, shall have the same right to insure the liability to pay the compensation provided for by part 1 [articles 5246h to 5246o] of this act, and when such company issues a policy conditioned to pay such compensation the holder of such policy shall be regarded as a subscriber so far as applicable under this act; and when such company insures such payment of compensation it shall be subject to the provisions of parts 1, 2 and 4 [articles 5246h-5246qqq, 5246yyy-5246zzzz] and of sections 10 [article 5246u], 17 [article 5246ww], and 21 [article 5246xxx], of part 3 of this act.”

Appellant asserts that the specific reference of the last clause quoted to particular provisions of the statute, not including articles 5246x and 5246xx, is an exclusion of the application of such articles to an employer taking insurance under said article 5246yyyy. We do not think this is correct. The first clause of the statute quoted provides that the person taking such insurance “shall be regarded as a subscriber so far as applicable under this act,” and we think fixes the duty of the insured; the latter clause has reference to the application of certain parts of the law to the insurance company. This conclusion, we think, is made clear by the definition of the word “association,” contained in article 5246yyy, as meaning not only the Texas Employés’ Association, but any other insurance company authorized to insure the payment of compensation to injured employés. So, we think it is clear that the statute requires employers, taking either class of insurance, to give notice required by articles 5246x and 5246xxx. The same reason exists for notice in both eases, and any other construction would result in an incongruity in the act itself.

The Supreme Court of the United States, in the cases of New York Central R. Co. v. Sarah White, 243 U. S. 188, 37 Sup. Ct. p. 247, 61 Ii. Ed. —-, Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255, 61 L. Ed.-, and Mountain Timber Co. v. State of Washington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. -, recently decided, had before it the constitutionality of the compensation acts of New York, Iowa, and Washington, upholding the acts in each instance, and some history of this character of legislation, together with the citation of many authorities, discussing the various acts, may be found in the opinions of the court in those cases. The New York and Washington acts were in many of their features compulsory, and the court held them to be constitutional. We do not think, however, that these eases affect the construction of our statute in any way. We think that it was the intention of the legislature of Texas to adopt an elective act, the written or printed notice to the employe being the fact which puts him upon his election. And we have concluded that the employer, in order to show that the employe has elected to take under the compensation act, should show that the employer has given the notice required fby the act, or the employe has in some manner waived it. It is not necessary in this case to determine whether the written or printed notice has to be personally served on the employe, or whether posting the written or printed notices on the premises would be sufficient notice, or whether notice once given would be effective on subsequent employments of the same person, as plaintiff and defendant, on the trial, introduced evidence as to whether notices were posted on the premises where plaintiff was working at the-time of the alleged accident, and also on other premises where he had worked for appellant on previous occasions. The case was evidently tried on the theory that notice received by plaintiff by such means and on the occasion of former employment would be sufficient. We confine our ruling to a decision of the specific questions presented by the assignments heretofore referred to.

The appellant, by his seventh assignment, contends that the appellee, by the presentation of a claim to the accident board at Austin, elected to “pursue that remedy to recover damages for his alleged injuries and is now estopped from prosecuting this suit.” The appellee, Garrett, a few days after the alleged accident, inquired of Rice if he did not have insurance and suggested that some steps should be taken to get the compensation for him, and, at Rice’s suggestion, secured a blank report of accident, and requested the foreman on the jolb to make it out, which was done; appellee assisting in making it out by suggesting the answers to the inquiries' contained in the -accident report. The report was left with the foreman, and it is not shown when, if at all, it was filed with the accident board. Appellee filed this suit against Rice on February 23, 1916. On May 5, 1916, he signed two instruments addressed to the industrial accident board. Austin, Tex. — one designated “Claim for Compensation for Damages,” and beginning, “This is to notify you, W. M. Rice, that I claim compensation from you under the Employers’ Liability Act for personal injury sustained,” etc.; the other designated “Notice of Injury,” and beginning, “This is to notify you, W. M. Rice, as you have been notified before herein, and know of the fact,” etc. On May 7, 1916, appellee’s attorney addressed a letter to the industrial board at Austin, in which he referred to the fact of the accident and the recent decision of the Supreme Court, in which it was decided that the compensation act was constitutional, and stated that he had “concluded to pursue the remedy, at least to comply with the law, which, seems to he precedent to the bringing ■of this snit in order that my client may obtain compensation for his injuries.” This letter also stated that Rice had failed to notify him or his client as to the company in which he was insured, and asked for information as to the name of the company in which Rice had insurance and as to the manner of procedure. To this letter the secretary of the hoard replied that Rice carried a policy with the American Indemnity Company and suggested that the matter be taken up with the said company. A letter from the American Indemnity Company was intro•duced, dated May 12th, addressed to appel-lee’s said attorney, which referred to a letter from appellee’s said attorney of May 10th, relative to said claim, concluding:

“If you will dismiss suit now pending we shall be glad to treat with you concerning settlement •of this claim and request that you confer with ■our attorney, Messrs. Veale & Lumpkin, con■cerning same.”

In Ruling Case Law, vol. 9, p. 960, we find the following statement of what constitutes an “election”:

“An ejection df a remedy which has the effect -of an estoppel in pais or an estoppel by record in that class of cases in which the remedies are really inconsistent, is generally considered made when an action has been commenced on one of .such remedies. Some courts go so far as to say that in such casés the choice of a remedy once made cannot be withdrawn or reconsidered though no advantage has been gained nor injury done by the choice, and no injury would be done by setting the choice aside. But the more reasonable rule is that the mere bringing of an action which has been dismissed before judgment and in wliich no element of estoppel in pais has arisen, that is where no advantage has been gained or no detriment has been occasioned, is not an election.”

See, also, Bigelow on Estoppel, p. 7S9; Broadkey v. Lessee, 157 S. W. 457; Jirou v.

■Jirou, 136 S. W. 498; Baumam v. Jaffrey, ■6 Tex. Civ. App. 489, 26 S. W. 260; notes to Register v. Carmichael, 34 L. R. A. (N. S.) 309.

If appellee had tbe right of election, we think an application of the principles announced in tbe authorities referred to would lead to the conclusion that he has elected to pursue his common-law remedy against his employer. This suit was filed first and has been carried forward. The filing of the claim at Austin was subsequent to the filing of this suit, and was evidently done in a tentative sort of wa|y, and does not seem to have been regarded by the industrial board as a proceeding regularly filed, for plaintiff was referred to the insurance company, and, when the insurance company requested a dismissal of this suit before considering the ■claim, the matter seems to have been dropped.

On the trial on the merits, it was ■shown that appellant, Rice, was engaged in reconstructing a building that had been burned, and the place where the work was being done was covered by débris and material of various kinds. Appellee bad just begun to work for appellant on tbe morning when he claimed to have been hurt, and he, with three other men, were put to moving some timbers 10x10 inches, 20 feet long. Protest was made by the employés that the timbers were too heavy for the men to carry under the circumstances, but the foreman had ordered them to proceed with the work, stating that if they could not carry them he would get men that would. The employes, proceeding with the work, had moved a number of pieces of timber when the appellee stumbled over a piece of timber or pipe, and in falling with the weight hurt his back, which resulted, according to the testimony of appellee and his witnesses, in permanent dislocation and injury. The jury found, in response to special issues, that the plaintiff sustained the injuries as alleged in his petition; that the defendant required the plaintiff and three other men to carry the timber with rubbish on the ground, under the conditions alleged in plaintiff’s petition; that such requirement was negligence which was the proximate cause of the injury to plaintiff; and that the plaintiff was not himself guilty of contributory negligence; and assessed tbe plaintiff’s damages at the sum of $3,-000.

The plaintiff alleged that the timber he was carrying weighed about 1,000 pounds. According to the estimate of the witnesses, the timber being carried weighed from 350 to 700 pounds. The appellant, 'by his eleventh and twelfth assignments, asserts that there is a variance between tbe pleading and the proof on tbe weight of the timber, and that it was improper, under the proof, to submit any issue as to whether plaintiff was ordered to carry timber as alleged in his petition. The weight of the timber as given in the pleading and the testimony was evidently only an estimate and was only a collateral fact in determining the ultimate issue as to whether the timbers were too heavy to he safely carried by four men over the ground where they were to be moved. We think these assignments should be overruled.

The thirteenth assignment complains of ■ the refusal of the court to instruct the jury peremptorily to find a verdict for the defendant, it being asserted that the facts proven were not sufficient to establish any negligence of the defendant, or that it was the proximate cause of the injury to plaintiff. In addition to the facts we have already stated, the plaintiff testified that he did not think of sustaining any injury when he made the protest against carrying the timber, hut merely thought that they were too heavy and the work was too hard; neither was there any testimony that any question of injury was in the minds of the foreman or the other employés. We think the testimony was sufficient to justify the submission of the issue to the jury. Bonn v. Railway Co., 82 S. W. 808, 44 Tex. Civ. App. 631, 99 S. W. 413; G., H. & S. A. Ry. Co. v. Brown, 181 S. W. 238; Bennett y. Railway Co., 159 S. W. 132; M„ K. & T. Ry. Co. y. Freeman, 168 S. W. 69; Clark y. Union Iron Co., 234 Mo. 436, 137 S. W. 577, 45 L. R. A. (N. S.) 295.

Tlie fourteentli assignment of error is not well taken. Tire plaintiff’s petition alleged specifically that the acts of negligence set up were, singly and taken together, the proximate cause of the injury to plaintiff.

The fifteenth assignment complains of the action of the court in submitting the following issue, “Did plaintiff sustain the injuries or any of them, alleged in his petition?” because it does not limit the time or place where said injuries, if any, happened or occurred. We do not think the jury could have misunderstood the issue thus submitted, and overrule this assignment.

This sixteenth assignment of error complains of the action of the court in submitting an issue to the jury requesting them to find whether defendant’s foreman required plaintiff to carry the timber with rubbish on the ground, as alleged in plaintiff’s petition, because two questions of fact were thus submitted in the same issue. The issue submitted was the substance of the act of negligence charged — the ultimate fact to be proven. We do not think there was any error in the submission of the issue in this way. Oaks y. West, 64 S. W. 1033; Hartford Fire Insurance Co. v. Post, 25 Tex. Civ. App. 428, 62 S. W. 140; Cushman v. Masterson, 64 S. W. 1031. In any event, it does not appear that probable harm could have resulted.

The seventeenth and eighteenth assignments complain of the action of the court in refusing to submit issues requested by the appellant, requiring a finding as to whether the plaintiff received any' injury while at work for the defendant on the Bryant factory, and whether the plaintiff is malingering. We think these issues were sufficiently covered by the issues submitted to the jury by the court.

The nineteenth assignment complains of the action of the court in submitting the following issue, “If the defendant or his foreman did make the requirements or order inquired about in the third special issue, was it negligence of the defendant to do so?” because, as appellant asserts, the court should not intermingle one issue with another. We overrule this assignment.

One of appellant’s attorneys, in making his argument to the jury, stated that the defendant, Rice, would not have to pay any judgment rendered against him, but that the insurance company would have to pay it. Upon objection, the court charged the jury that the argument was improper and instructed them not to consider it, and thereupon the said attorney stated to the jury that he desired to withdraw said remarks. Appellant, by his twentieth assignment of error, asserts that the verdict was rendered through passion and prejudice, as the result óf said argument. We do not regard the argument as proper. The question of the liability of the insurance company to Rice, in the event judgment should be against him, could not properly be decided in this case, either by the lower court or by this court. It could have nothing to do with the answer of the jury to the issues submitted to them, and the statement was evidently made for the purpose of appealing to a natural tendency of jurors to regard the plaintiff’s case more liberally where the defendant is a corporation, receiving a compensation to insure against accidents, than if the case were against an individual. But the matter for our determination is whether the argument probably caused an improper verdict. The policy of insurance was in evidence, so that the facts which were the basis of the statement were in evidence before the jury, and it has been held that where in an argument an attorney tells the jury something that they already know, or can readily deduce from the facts in evidence, the verdict will not be regarded as being the result of such improper statement. Railway Co. v. Smith, 93 S. AV. 184; Marshall & Co. v. Scharnberg, 190 S. W. 229; S. W. Tel. & Tel. Co. v. Sheppard, 189 S. W. 799; Tex. Tel. & Tel. C'o. v. Seiders, 9 Tex. Civ. App. 431, 29 S. W. 258. While, as stated, it is not proper for us to determine the question of whether Rice could recover on the policy, it is proper for us to say that a reading of the entire policy would probably have led the jury to the same conclusion as was announced by the attorney in the argument; so that, before we can assume that the statement was harmful, we must not only assume that the jury disregarded the instructions of the court not to consider the statement, but that if they were open to the consideration of such matters these suggestions would not have been obtained from their reading of the policy, independent of the statement made by counsel. The testimony is sharply conflicting as to whether the appellee is truly injured, as he and the physicians who testify for him claim; three physicians, two of them acting under appointment of the court to examine plaintiff, having testified that there was no such injury to the spine and hip as claimed by the plaintiff. The jury was the proper tribunal to settle this issue. If the appelldnt is injured as his testimony indicates, the amount of the verdict is not larger than the evidence would warrant, so that we cannot say that the verdict itself furnishes any evidence that it was the result of any improper motive. The trial court qualified the bill of exceptions by calling attention to the fact that the policy was before the jury and evidently concluded that the improper argument probably did not result in harm to appellant. Under these circumstances, we do not think we would be justified in finding that the statement probably resulted in harm.

Affirmed.
      (SfepFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    DORAN v. CAMPBELL.
    (No. 5840.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1917.
    Rehearing Denied May 9, 1917.)
    1. Appeal and Error <§^1011(1) — Bindings Based on Conflicting Evidence.
    Binding's of trial court based on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent, Dig. §§ 3983-388S.]
    2. Attorney and Client <§=>164 — Claim Against Client — Application oe Money Collected.
    An attorney has the right to apply money collected for his client to payment of any valid subsisting claim he has against her.
    [Ed. Note. — Eor other cases, see Attorney and Client, Cent. Dig. § 315.]
    Appeal from Thirty-Seventh District Court, Bexar County; W. S. Anderson, Judge.
    Proceeding by Annie Stell Doran against R. A. Campbell. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    James Raley, of San Antonio, for appellant.
   SWEARINGEN, J.

Appellant, Annie Stell Doran, brought this proceeding against R. A. Campbell in the district court to recover $85, claimed to have been collected for her by ap-pellee while acting as an attorney for her. The proceeding is brought by motion as provided by article 332 of the statutes. The statutory penalty of 20 per cent, was also asked for. The court rendered judgment for appellee.

The undisputed facts are that appellant employed appellee, a practicing attorney, to represent her as an attorney in a suit for divorce. Appellee accepted the employment under an express contract for compensation. The divorce suit was brought and judgment of divorce rendered. By virtue of the decree in the divorce suit the community homestead was sold, and of the proceeds $150 was paid to the appellee, as the attorney for appellant, by the sheriff. Appellee applied the entire $150 to settlement of his agreed fee. Appellant demanded one-half of the $150 from ap-pellee.

Appellee received $10, in addition to the above $150, before the divorce suit was filed. Appellant testified that she advanced this $10 to appellee for the purpose of paying cost of citation by publication, but that ap-pellee appropriated it to his own use. Ap-pellee testified that the $10 was paid to him by one Johnson, whom appellee represented in the corporation court.

There is a conflict in the evidence as to whether appellant bound herself to pay the $150 to appellee, or whether she bound herself to pay nothing, but agreed to permit appellee to collect $150 out of her husband’s part of the community property, then used as a homestead by appellant. Appellant testified “that she hired R. A. Campbell to get a divorce for her and he told her that he would charge $150.” “I agreed to his charge of $150.” She further testified that appellee told her at the time the amount of the fee was agreed to that he would make the homestead bring, when sold, enough to pay her $400 or $500 for her half after all costs were paid. The homestead was community property, of the approximate value of $1,200, and incumbered for $200. Appellant further testified that the $150 fee was to be paid out of her husband’s part of the proceeds of the sale of the homestead. Appellee testified that there was no mention of his attorney’s fee coming out of appellant’s husband’s estate; that appellant well knew and understood that appellee looked to her for the payment of his fee. Under his contract with appellant, appellant owed him the $150 fee. Appellee denied that anything was said about the amount appellant would receive from the sale of the property.

It will appear from the above statement that there is a conflict in the evidence as to the source from which the $150 would come. The trial court found in favor of the truth of appellee’s testimony. We see no reason to disturb the finding of that court.

There is no question that the appellee had the right to apply the money collected for his client to any valid subsisting claim he had against appellant at the time he collected money for her. Blair v. Blanton, 54 S. W. 321.

The judgment is affirmed.


text:
    HALL v. EDWARDS.
    (No. 1152.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 11, 1917.
    Rehearing Denied May 2, 1917.)
    1. Vendor and Purchaser <®=>4¿L-Validity oe Contract — Immoral Consideration — Sufficiency of Evidence.
    Evidence showing that defendant’s grantors, owning lots in sections devoted to houses of prostitution, constructed and sold houses to persons likely to use them for immoral purposes, terms of sale being so arranged that payments might be made out of tbe profits of such business, held sufficient to show that the sale was for immoral purposes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76.]
    2. Contracts <§=>138(1) — Enforcement of II- . legal Contract.
    Courts will not assist in the furtherance of an illegal contract, and it is immaterial that the illegality does not appear upon the face of the contract; but evidence of the true consideration and purposes of the contract will be admitted.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 681.]
    3. Contracts <§=>138(2) — Effect of Illegality.
    Where an illegal contract has been fully executed by the parties, the courts will recognize the rights and titles resulting therefrom, where the suit is not to enforce the contract itself.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 686, 687, 689.]

      4. Vendor and Purchaser @=>39 — Illegal Contract — Effect on Subsequent Transaction.
    Where defendant purchased property for immoral purposes, sale on foreclosure of trust deed, given by her to secure purchase price, was not an independent transaction founded on a new consideration, so as t& make the sale valid; it being necessary to exhibit the deed of trust to effectuate the trustee’s deed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 9.]
    5. Vendor and Purchaser @=>157 — Delivery —Effect.
    Delivery of a deed is a symbolical delivery of possession of the property conveyed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 314-317.]
    6. Trespass to Try Title @=>6(1) — Defense of Illegality.
    Where property was conveyed through a third person to defendant for immoral purposes, and plaintiff purchased same at foreclosure of trust deed given for purchase price, the court will not grant plaintiff relief in trespass to try title; and the fact that defendant assumed indebtedness does not estop her from denying illegality thereof, she being in fact the true party to the transaction, and the contract ■ never having been valid.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-7, 9, 15, 16.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Suit by W. M. Hall against Lula Edwards. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Nelson & Hunter, of Wichita Falls, for appellant. T. R. Boone, of Wichita Falls, for appellee.
   BOYCE, J.

Appellant, W. M. Hall, brought suit in trespass to try title to certain property situated in Wichita Falls, against ap-pellee, Lula Edwards, who defended on the ground that appellant acquired his title through and in consummation of a transaction by which the land had been conveyed to appellee for the purpose of conducting thereon an immoral business.

The evidence shows that P. H. Pennington and Chas. Hill on August 20, 1913, conveyed the property in question, which consisted of a lot of ground 49 by 65 feet, on which was situated a seven-room house, to Everett Hughes for a consideration of $150 cash and 56 notes for $60 each and one note for $37, payable monthly, secured by vendor’s lien retained in the deed and by deed of trust of even date with the deed. On August 21st Hughes conveyed to Lula Edwards, in consideration of $150 cash and assumption of payment of the notes above described. The first 13 of the notes were paid, and, default having been made in payment of all notes subsequently maturing, the trustee sold the property under the trust deed. The property at the sale was bought in by the appellant, Hall, and the trustee delivered to him proper deed of conveyance therefor.

The jury, in response to special issues submitted to them, found specifically: (1) That Pennington and Hill sold the property to be used for immoral purposes. (2) That it was used for immoral purposes. (3) That appellant, when he purchased the property at the trustee’s sale, knew that it had been sold by Pennington and Hill for immoral purposes, and was then being used for such purposes.

We think the evidence is sufficient to support the findings of the jury, and as the appellant challenges only the first finding as above stated, we will notice only briefly some of the facts which support this finding. The said Pennington and Hill owned a lot and fractional part of a lot located in that part of the city of Wichita Falls occupied by houses of ill fame. They built four houses, including the one in question, on this parcel of land, and sold them to persons engaged in the business of conducting houses of prostitution; the sales being made on a small cash payment, with balance in monthly payments, as in the present instance. They evidently were familiar with the character of business being conducted, in the vicinity of these houses, and knew the avocation of the parties to whom they sold the property, and it is a fair conclusion from these facts, in connection with the verdict of the jury, to say that they built the houses to be used as houses of prostitution and for sale to those engaged in that business; the terms of sale being so arranged that the payments might be made out of the profits of the business being conducted on the respective premises.

The proposition advanced by appellant as to property that is sold with mere knowledge on the part of the vendor that the vendee expects to use it to carry out an illegal or immoral purpose is generally correct; but we think the facts in this case go further than this. The facts and circumstances of the building and sale of the houses are such as that it may be said that the vendors were to a certain extent aiding and abetting the vendees in carrying on this business to their mutual profit. The facts leading to this conclusion, we think, are equally as strong as those in the case of Reed v. Brewer, 90 Tex. 144, 37 S. W. 418, upon which the Supreme Court denied recovery for the purchase price of furniture sold for use in a house of prostitution. And we conclude that there could have been no recovery by 1-Iill and Pennington on the notes and foreclosure of the lien in a suit brought by them for that purpose.

Appellant on the trial made a prima facie case by the introduction in evidence of the deeds, deed of trust, and trustee’s deed above mentioned; and it is urged that, as he was thus enabled to make out his case without in any way referring to or showing the facts that made the transaction illegal, lie was entitled to recover. The proposition, as broadly stated by appellant, is not correct. If the purpose of the suit is to carry out or aid in the consummation of an illegal contract, the fact that the illegality of the transaction may not appear from the face of the contract itself is not material; but evidence of the true consideration and purpose of the contract will be admitted, no matter which party under the rules of pleading and evidence may be forced to show them, and if from all the facts it appears that the transaction is illegal, the court will decline to assist by its judgment in its furtherance. Pomeroy, Equity Jurisprudence (4th Ed.) §§ 93S-940; McMullen v. Hoffman, 174 U. S. 640, 19 Sup. Ct. 839, 43 L. Ed. 1123; Wiggins v. Bisso, 92 Tex. 219, 47 S. W. 637, 71 Am. St. Rep. 837; Read v. Smith, 60 Tex. 382.

“The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged rights directly springing from such contract. In cases of this kind the maxim is ‘Potior est conditio defendentis.’ Upon the point as to the ability of the plaintiff to make out his cause of action without referring to the illegal contract, it may be stated that the plaintiff for such purpose cannot refer to one portion only of the contract upon which he proposes to found his right of action, but that the whole of the contract must come in, although the portion upon which he founds his cause of action may be legal. ⅜ * * Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case.” McMullen v. Hoffman, supra.
“If the transaction is illegal, no expression of it in innocent forms makes it innocent or meritorious. Such disguises may increase the difficulty of detection; but, if exposed, they do not deceive the majority of the courts into treating the transaction as if it was what it would appear to be, and not what it really is.” Wegner v. Biering, 65 Tex. 510.

When, however, the illegal contract has been fully executed by the acts of the parties themselves, and the suit is not brought for the purpose of enforcing the contract itself, the courts will recognize the rights and titles resulting from the execution of the contract by the parties themselves. Wegner v. Biering, 65 Tex. 511; MeBlair v. Gibbes, 17 How. 232, 15 L. Ed. 133; Pomeroy, Equity Jurisprudence, § 939. For instance, if Lula Edwards had paid the balance of the consideration, the courts in any future litigation as to the title would recognize this conveyance as a good link in the chain of title; for, as Judge Robertson in the case of Wegner v. Biering, supra, says:

“When the contract has been executed without the aid of courts by the voluntary acts of the parties, the profit or estate realized is not contaminated.”

And even where there is some connection between a new contract, which is sought to be enforced, and an illegal one, yet in some cases the courts will enforce such new contract. Eloyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787; De Leon v. Trevino, 49 Tex. 88, 30 Am. Rep. 101; Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732. In the case of Floyd v. Patterson, supra, it was held that a broker, who had received the proceeds of a gambling transaction for the benefit of his principal, might be compelled to pay it to his principal; the suit being on the implied promise to pay. The court in the decision of the case says:

“But if the transaction has been completed, and 'another grows out of it collateral to it, dependent upon a new consideration, the new contract is not vitiated by the taint of the old one, and will be enforced. ‘It has been observed that the test whether a demand connected with an illegal act can be enforced is whether the plaintiff requires any aid from the illegal transaction to establish his case.’ ”

In the case of De Leon v. Trevino, supra, a partnership had been engaged in an illegal business, and on settlement of the partnership affairs one partner gave the other a note for the balance due him on such settlement, and the court granted a recovery thereon. The case of Brooks v. Martin also permits the enforcement of rights growing out of a partnership engaged in an illegal business, which had been consummated. We do not deem a further reference to authorities along this line necessary. An extended review of such authorities was made by our Supreme Court in the case of Wiggins v. Bisso, 92 Tex. 219, 47 S. W. 637, 71 Am. St. Rep. 837, and by the Supreme Court of the United States in the case of McMullen v. Hoffman, 174 U. S. 640, 19 Sup. Ct. 839, 43 L. Ed. 1117. The force of the cases of De Leon v. Trevino and Brooks v. Martin as controlling authorities is very much weakened by the decisions in the two last-named cases. The consideration of the principles announced by these authorities in their possible application to the facts of this case has raised considerable doubt as to the proper decision thereof. By the trustee’s sale under the terms of the deed of trust the legal title to the property was vested in the plaintiff without the aid of the courts, and the questions suggested by these authorities are: (1) Whether the contract has thus been fully executed and the present suit can be regarded as one to carry out or enforce the illegal contract; (2) whether the trustee’s deed under which plaintiff claims is such an independent contract founded on a new consideration as to come within the rule quoted from Floyd v. Patterson, supra.

Reversing the order of these questions in our further consideration of them, we may say that if the defendant, Lula Edwards, in satisfaction of the balance due on the notes, had voluntarily deeded the land to Hall without giving possession, the case would seem to come fairly within the authority of the case of De Leon v. Trevino. The trustee’s deed executed under the authority of the deed of trust is in legal effect a conveyance by Lula Edwards herself. However, its connection with the illegal contract is more close than if it were an independent deed executed by her. It takes its life from its rooting in the illegal contract evidenced by the deed and deed of trust. It is necessary to exhibit the deed of trust to give any effect whatever to the trustee’s deed. We think that our answer to this question should be adverse to appellant’s claim.

On the other question suggested the authorities are conflicting. If possession of the property had been delivered to appellant upon execution of the trustee’s deed, there can be no doubt that the contract would have been executed and the courts would thereafter recognize the title and rights thus acquired. Delivery of a deed is a symbolical delivery of possession of the property conveyed. Thus the ultimate question here is whether it takes the physical possession of the property to finally and fully consummate the contract, and whether, when the appellant enters the courts to obtain such possession, he is invoking the aid of the court in carrying to final effect the illegal contract. In discussing the maxims which control the action of the courts in these cases, to wit, “Ex turpi causa non oritur actis,” and “In pari delicto melior est conditio possidentis,” Pomeroy says:

“The ‘condition’ referred to in the maxim is clearly the condition of the parties with respect to their property rights created by or resulting from the contract.”

And Judge Denman, in the case of Beer v. Landman, 88 Tex. 450, 31 S. W. 807, treats the “word ‘condition’ as referring to vested property rights.” In the cases of Raguet v. Roll, 7 Ohio, 70, pt. 2, and Williams v. Engle-brecht, 37 Ohio St. 385, it was held that a mortgagee in a mortgage given to secure the payment of an indebtedness founded on an illegal consideration, where the mortgagor remained in possession, could after default maintain an action of ejectment on the legal title thus vested in the mortgagee, though he had been denied recovery on the notes and foreclosure of lien on suit thereon. Where conveyances have been made to defraud creditors, and possession remains with the grant- or, some courts allow the grantor to recover, and others deny recovery. Elliott on Contracts, 622. Among the cases that recognize the right to recover are the following: Ep-person v. Young, 8 Tex. 135; Hoeser v. Krea-ka, 29 Tex. 450; Lemp Brewing Co. v. La Rose, 20 Tex. Civ. App. 575, 50 S. W. 462; Elmore v. Elmore (Ky.) 58 S. W. 980. Contra: Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531, and authorities there cited. In the case of Medearis v. Granberry, 38 Tex. Civ. App. 187, S4 S. W. 1070, a deed had been executed and delivered on an illegal consideration, and the grantee sued the grantor, who had remained in possession. It was held in effect that the contract was not complete without possession of the property, and, as the purpose of the suit was to seek the aid of the court to consummate the illegal contract, recovery should be denied- This ease is more in point on the question than any we have examined, and while, as Judge Key says in the opinion of the court, “the question is not free from difficulty” we have decided to follow it in our decision of the question.

The property was conveyed to Everett Hughes, who conveyed to Lula Edwards, as heretofore stated, and appellant asserts that appellee, Lula Edwards, by reason of the assumption of the payment of the indebtedness in the deed to her, is estopped from denying the legality of the notes and the lien securing their payment, and cites the following cases in support of his contention: Michigan Savings & Loan Association v. Attebery, 16 Tex. Civ. App. 222, 42 S. W. 569; Paddock v. Loan Association, 13 Tex. Civ. App. 514, 36 S. W. 1008. The evidence tends to show that Lula Edwards ápplied in person to Chas. 1-Iill to purchase the property, and he informed her that they could not sell it to her direct; that she thereupon bought the property through Everett Hughes; paying the entire consideration therefor herself; that Pennington and Hill did not know Everett Hughes, and did not look to him for payment of the notes. These facts and others would warrant the court below in finding that the sale to Everett Hughes was only a sham, and that the real transaction was a sale to Lula Edwards. We do not think, however, that such a conclusion is necessary to support the judgment. The case's cited do not appear to us to be authority for appellant’s position.- In those cases the indebtedness itself was a valid obligation against the party selling the land against which it was supposed to constitute a lien. The lien was only unenforceable originally because not obtained in compliance with the law fixing the manner in which liens might be acquired upon the homestead, etc. The property was conveyed subject to such lien, and the amount of the indebtedness secured thereby was deducted from the consideration paid the- grantor. In such case, to permit the party who had bought the land to defeat the lien, thus leaving the vendor liable to pay the notes, which according to their understanding were to have been paid out of the property, would be manifestly unjust, and he was held es-topped from denying the validity of the lien. No such considerations enter into this case. The indebtedness is not legal, and could not be enforced against Hughes; and, even if it could, he is in no position to invoke a doctrine of equity to protect him from loss in the transaction. We do not think the contract could be purified in this way. Seelig-son v. Lewis, 65 Tex. 220, 57 Am. Rep. 593; Wegner v. Biering, -65 Tex. 510.

These conclusions result in our overruling the first four assignments of error presented by appellant.

The court below not only entered judgment that plaintiff take nothing by the suit, but also rendered judgment for the defendant, removing cloud from her title, etc. The judgment of the court in such cases should leave the parties in the same condition “as they have by their own acts placed themselves.” Eckies v. Nowlin, 158 S. W. 795; Beer v. Landman, 88 Tex. 450, 31 S. W. 805. In the case of Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. 71, 8 L. R. A. 514, 22 Am. St. Rep. 531, where the vendor in a fraudulent conveyance had remained in possession and suit was brought by the grantee, the court .said:

“In the present case, if the facts are as the evidence offered would tend to show, the fraudulent transaction has been consummated _ to the extent of vesting the title in the plaintiff, and leaving the possession in the defendant. Here, according to the rules of law above discussed, they should be left.”

In order that there may be no doubt as to the effect of the judgment, it will be reformed, so as to carry out this purpose, and affirmed.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      editor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    HALE COUNTY v. LUBBOCK COUNTY.
    (No. 8488.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 17, 1917.
    On Motion for Rehearing, March 31, 1917.)
    1. Counties c©=>S — Boundaries—Validation —Statutes—Evidence.
    Evidence held to bring a boundary line between counties run and markéd by a state surveyor within Rev. St. 1895, art. 822, declaring county boundaries as then recognized and established to be adopted as the true boundaries.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 4-6.]
    2. Constitutional Law <®=»48 — Revisions— Presumption.
    A presumption of validity of enactment of Rev. St. 1895, art. 822, adopting county boundaries then recognized and established, arises from its presence therein.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 108-111.]
    3. Counties <®=37 — Boundaries—Validation —Statute.
    Rev. St. 1895, art. 822, declaring county boundaries as then recognized and established to be adopted as the true boundaries, is not limited to those established in accordance with statute.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 3.]
    On Motion for Rehearing.
    4. Counties <©=^>7 — Boundaries—'Validation —Recognition.
    Confusion in abstract records as to what county certain surveys are in not being referable to location of a county line did not interfere with operation of Rev. St. 1895, art. 822, adopting county boundaries then recognized and established.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 3.]
    5.New Trial ⅞=^63 — Special Findings — Attack in Trial Court.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1986, 1990, declaring a special verdict conclusive between the parties as to the facts found, and requiring the court, unless they be set aside, to render judgment thereon, does not prevent motion. for new trial after judgment on the ground of the special ’findings being unsupported by evidence, and thereby having a. review of the question on appeal; article 2023 allowing two days after rendition of judgment for filing motion for new trial; article 1612 providing that when a motion for new trial is filed the errors assigned in it shall constitute the assignments of error on appeal; Court of Civil Appeals rule 24 (142 S. W. xii) providing that assignment of error not distinctly set forth in the motion for new trial in the trial court shall be considered waived ; and rule 71a for district and county courts (145 S. W. vii) providing that a motion for new trial shall be filed where parties desire to appeal from a judgment except for a fundamental error, or where the statute does not require such a motion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 128.]
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Suit by Lubbock County against Hale County. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Ocie Speer, of Ft. Worth, Martin, Kinder, Russell & Zimmermann, of Plainview, and Beall & Douthit, of Sweetwater (Marvin II. Brown, of Ft. Worth, of counsel), for appellant. R. A. Sowder, of Lubbock, R. N. 'Gris-ham, of Sweetwater, and Jno. R. McGee and W. F. Seheaick, both of Lubbock, for appellee.
   DUNKLIN, J.

Lubbock county instituted this suit against Hale county to fix the boundary line between those two counties. Hale county is situated immediately north of Lubbock county, and hence the line in dispute was the south boundary of the former county and the north boundary of the latter county. It was the contention of Lubbock county that the line heretofore supposed to be the true boundary was not such, but that the true boundary was north of that line. Upon the trial of the case before a jury this contention was sustained, and from a judgment in accordance therewith, Halo county has appealed.

The two counties were created by an act of the Legislature "passed August 21, 1876 (Acts 15th Leg. c. 144). Hale county was organized in August, 1S8S, and Lubbock county was organized in February, 1891. The lines of the two counties as created run due east and west and north and south, each line being 30 miles in length, and the field notes of Lubbock county fix the beginning corner of that county to be the northwest corner of Hockley county; and the field notes of 1-Iale county fix the beginning corner of that county as the northwest corner of Floyd county. In the field notes of the two counties no natural or artificial objects are called for, thus leaving the true location upon the ground of the lines of the two counties to be established by surveys according to course and distance from the beginning corners given wherever such beginning corners might be.

The evidence shows without contradiction that during the summer of 1891, shortly after the organization of Lubbock county, the county judges of Hale and Lubbock counties agreed to request the state land commissioner to appoint a surveyor to run and mark the boundary line between the two counties, and that each county would pay its pro rata part of the expense of that work. Prior to said agreement, the commissioners’ court of Hale county passed an order authorizing Judge Burch “to make a contract with some competent surveyor to establish the boundary lines of Hale county at as early a date as .possible, and upon the best possible terms, and that he notify the proper authorities in adjoining counties when said lines were to be established.” Also on June 8, 1891, before the survey was made, the commissioners’ court of Lubbock county agreed to pay its pro rata of the expense for establishing the boundary line between it and Hale county to be surveyed by the state surveyor. The request so agreed upon was presented by the county judge of Hale county, and in obedience thereto the state land commissioner appointed Ira Millington, one of the state surveyors, to do the work. The county judge of Hale county notified the county judge of Lubbock county of such appointment, and also of the time and place appointed for making the survey. At the appointed time and place, Judge Burch, the county judge of Hale county, and also L. A. White, the county surveyor of Hale county, met Millington, who then proceeded to survey and mark the boundary between the two counties. In running that line they began at its east end and ran west, fixing the east end as the southeast corner of Hale county and the northeast corner of Lubbock county, fixing the west end of the line- as the southwest corner of Piale county and the northwest corner of Lubbock county. Each of the two corners was plainly marked with a stone 20 by 30 inches in diameter and a charred cedar stake set in the ground. The ter- , minus of each mile of the line so run was marked by digging a hole in the ground, ifiaeing therein charcoal and covering the same with a mound 2 or more feet in height, and digging two pits, one on the east and one on the west of the mound, each pit being 2 feet square and 12 inches deep. Judge Shannon, the county judge of Lubbock county, who is now dead, was not present during the survey of that line, but one of the county commissioners of Lubbock county, at the request of Judge Shannon, was present a part of the time the work was being done, but it seems took no part in it.

The field notes of the survey were reported to and filed in the general land office of the state on November 16, 1891. The land commissioner examined and approved the same, and ever since that time the boundary line between the two counties as so surveyed by Ira Millington, state surveyor, and L. A. White, county surveyor, of Hale county, has been recognized in the office of the land commissioner as the true boundary line between Hale and Lubbock counties.

On November 14, 1891; after the survey had been finished, the commissioners’ court of Lubbock county passed an order accepting and approving the line so run as the true boundary line between the two counties, and allowed an account of $70 against the county as its pro rata part of the expense of said survey. Likewise, on November 27, 1891, the commissioners’ court of Hale county also approved the survey so made and adopted the line as the true south boundary line of that county. On April 18, 1892, the commissioners’ court of Lubbock minty, by an order duly entered in its minutes, ordered J. B. Jones, the county surveyor of Lubbock county, to survey and establish the east, south, and west boundaries of Lubbock county, beginning at the northeast corner of the county as established by the state surveyor, Ira Millington, as indicated by the field notes of said survey, and specifically recognizing the east and west termini of said line as the northeast and northwest corners of Lubbock county, respectively. In obedience to that order, Jones, the county surveyor of Lubbock county, did survey the east, south, and west boundaries of Lubbock county, and made a report thereof to the commissioners’ court, showing a plat of the boundary lines so established by him, including the north boundary line, which he certified as being a correct copy of the plat and field notes made by Ira Millington as the correct boundary line between Lubbock and Hale counties. That report and map by Jones was filed for record in the office of the county clerk of Lubbock county on June 30, 1892, and was duly recorded July 12, 1892. J. B. Jones was elected county surveyor of Lubbock county in the spring of 1891 as soon as the county was organized, and he filled the office until the fall of 1896.

The following is article 1400, Vernon’s Sayles’ Texas Civil Statutes, which is found in the Revised Statutes of 1895 (article 822):

“The county boundaries of the counties in this state as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.”

Appellant invokes that statute in connection with its contention that the evidence conclusively shows that ever since the survey of the boundary line between the two counties was made by Ira Millington and his work approved by the commissioner of the land office -and by the commissioners’ courts of the two counties,' the line so established by Millington has been recognized and adopted as the true boundary between those two counties. We are of the opinion that such contention is correct.

P. F. Brown, the county judge of Lubbock county from 1894 .to 1898, and J. B. Jones, who was county surveyor for the same county from 1891 to 1896, both testified, in effect, that they, in their official capacities, recognized the Millington line as the true boundary line between the two counties, and neither of those officials ever exercised any jurisdiction north of that line. The evidence further shows without contradiction that the line was recognized by the officers of the county in the selection of jurors, laying out of roads, and in establishing voting precincts. All of the county officers of Hale county likewise recognized the Millington line as the true boundary line at all times after it was established, and no controversy between the officers of the two counties with respect thereto ever arose until within about 3 years prior to the institution of this suit, which was filed March 9, 1915, more than 20 years after the Millington line was established. In support of its contention that the Millington line was not so recognized by the officers of the two counties, appellee has cited the testimony of Judge Burch that he did not remember that any one lived in Hale county within a half mile of the Millington line, and the further testimony of Judge P. F. Brown, to the effect that during his incumbency in the office of county judge he did not remember any person eligible to jury service who resided in Lubbock county within a half mile of the Millington line, and his further testimony as follows:

“As to whether or not while I was county judge of Lubbock county there frequently arose before the commissioners’ court questions as to what county was entitled to taxes on lands lying near the purported Millington line between Lubbock and Hale counties, such questions arose several times. I think that such questions arose every time that the tax rolls came up; that we had this controversy every year. As to whether or not it is a fact that no question came up before me during my whole tenure as county judge and presiding officer of the commissioners’ court of Lubbock county, other than questions as to taxes that in any way involved the location of the north boundary line of Lubbock county ’; that is all the question that came up.”

. R. E. Burch, who was deputy sheriff of Hale county from January, 1892, to November, 1894, and sheriff from the latter date to November, 1906, and a part of whose duties was to collect the taxes, testified without contradiction that some of the land situated in Lubbock county was abstracted as being in Hale county, and some of the land situated in Hale county was abstracted in Lubbock county; and in such cases under a ruling of the state land office, the Hale county officers collected on the lands in Lubbock county, and the Lubbock county officers collected taxes on lands that were in Hale county, but that .there was never any confusion between the officers of the two counties with respect to such taxes, and that there was never any dispute between the officers of the two counties as to the location of the true boundary line between the two counties.

It is quite clear that the testimony of Judge P. F. Brown quoted above, that questions with respect to taxes on lands lying near the Millington line arose several times while he was the presiding officer of the qommission-ers’ court of Lubbock county, had reference to questions only arising from mistakes in the abstracts of the lands of the two counties referred to in the testimony of Sheriff Burch. For Judge Brown testified specifically that he was with the surveyor, Jones, when he surveyed the east, south, and west lines of Lubbock county; that he saw the corners established by Millington; that he found the pipe driven in the ground that was called for in the Millington survey as the northeast corner of Lubbock county; that he was familiar with the history of the survey made by Millington; that he knew several other counties who helped to pay for the work run by Millington; and further testified as follows: ■

“I did not exercise any jurisdiction over any territory north of said line while I was county judge of Lubbock county; I thought the county line between Hale and Lubbock counties was settled, and I, in my official capacity, did recognize this line as the settled boundary line between Hale and Lubbock counties, prior to 1896, while I held said office, in the selection of jurors for my court, in the laying out of roads, voting precincts, etc. As to when I first heard there was any dispute as to the proper location of the boundary line between Lubbock and Hale counties, it has been within the last two or three years. ⅜ * ⅜ While county judge -I did recognize the Millington line as the boundary line between Hale and Lubbock counties.”

Both L. A. White, who, as county surveyor of Hale county, assisted Millington in running the line, and R. E. Burch, the sheriff, testified without contradiction that they recently went over the line and found not only the corners, but several of the monuments placed at the end of each mile by Milling-ton ; White testifying that such identification was made by him in the year 1914, and Burch testifying that .he went over the line and found those monuments in 1915.

In the case of Stephens County v. Palo Pinto County, 155 S. W. 1006, this court reversed the judgment of the trial court and rendered judgment in favor of the appellant, under and by virtue of the provisions of article 1400, because tbe evidence conclusively established the fact that prior to, and up to, the year 1895, the boundary contended for by the appellant was recognized and established as the true boundary between those two counties. And we are of the opinion that that article of the statute and the decision noted are applicable in the present suit, and, under the undisputed facts above stated, are conclusive against the claim of Lubbock county, with respect to the proper location of the boundary line in controversy.

In tlie present suit the jury found that the true boundary line between the two counties was north of the line established by Milling-ton, and there was evidence tending to support that finding, if plaintiff’s theory as to how that boundary should be located be accepted as correct; but the correctness of which was controverted by competent evidence, as hereinafter noted. And appellee insists that article 1400 of the present Revised Statutes was, by the codifiers, inserted in the revision of the statutes adopted in 1896, contrary to the provisions of article 8, § 43, of the Constitution, and the powers delegated by the act of the Legislature passed in 1891 appointing them; and, never having been passed by an independent act of the Legislature, could not operate to establish county, boundaries materially different from the boundaries theretofore existing, without violating article 9, § 1, of the Constitution of Texas, which prohibits the taking of territory from one county and including it in the boundaries of another.

In the codification of the Revised Statutes of 1895, there is no marginal notation or other specific showing that that article was added by the codifiers who had been theretofore appointed to do such work in the year 1891, or that it was passed at any former session of the Legislature, or by any independent act during the session of 1895. In other words, the codification is silent as to whether or not that article had previously been enacted by the Legislature or was enacted by some separate and independent act of the Legislature of 1895, or whether the same was added as an article of the Revised Statutes by the codifiers. In support of its contention that article 1400 was added by the codifiers in the revision of 1895, appel-lee says that the statute is not to be found in any of the published acts of any of the prior Legislatures. Article 1400 was a validating or curative act merely making definite the boundary lines of counties which had not theretofore been fixed upon the ground when the counties were organized, and it cannot be seriously questioned that the Legislature had constitutional authority to pass such an act so long as the same did not operate to take territory from. one county and include it within the boundaries of another, and the proof in the present case would not justify a conclusion that that constitutional restriction was violated when the statute is applied to the line run by State Surveyor Millington.

It is .a familiar rule that with respect to mere matters of procedure or methods of enacting a statute, every reasonable presumption will be indulged in favor of the validity of such statute. 36 Cyc. 971, 974. In Langston v. Canterbury, 173 Mo. 122, 73 S. W. 151, one of the questions raised was stated as follows:

“The learned counsel for respondents challenge the authenticity of the statute' as it now appears in the revision of 1899, and as it appears in that of 1889, and say.that an examination of the Session Acts from 1879 to 1889, inclusive, shows no act of the Legislature amending- section 230, Revised Statutes 1879.”

Thh court overruled that contention upon the ground that the volumes of the Revised Statutes were as authoritative as were the volumes containing the Session Acts, and that the verity of either one could not be questioned except in the face of the original documents on file in .the office of the secretary of state. To the same effect is Selders v. Kansas, etc., Ry. Co., 19 Mo. App. 334. See, also, 36 Cyc. 1243 to 1251, inclusive. And in Sutherland Stat. Const. § 155, the following is said:

“The fact of a revision raises a presumption of a complete Code or a complete treatment of the subjects embraced in it.”

And in passing it may be noted that in the present suit no proof was offered of any legislative journals, or of any other documents on file in the office of the secretary of state to establish appellee’s contention. In 36 Cyc. 971, the following is said:

“The incorporation of an act into a Code and its subsequent re-enactment cures defects which may have existed in the original act by reason of failure to comply with formal requisites.”

The case of Daniel v. State, 114 Ga. 533, 40 S. E. 805, supports the text quoted. See, also, Central Ry. of Ga. v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518; McFarland v. Donaldson, 115 Ga. 567, 41 S. E. 1000.

“The Legislature by repeatedly recognizing a law invalid for failure to comply with certain constitutional requirements as to form and procedure may effectually ratify it and make it valid.” 86 Cyc. 975, and decisions cited in note which support the text.

Article 1400, which appears in the Revised Statutes of 1895, has been brought forward and continued as a part of our statute laws up to the present date. It was included in the Revised Statutes of 1911. And section 7 of the final title of the Revised Statutes of 1879 has been brought forward and included in the revisions of 1895 and 1911. That section is as follows:

“That no general or special law heretofore .enacted validating or legalizing the acts or omissions of any officer, or any act or proceeding whatever, shall be affected by the repealing clause of this title; but all such validating or legalizing statutes whatsoever now in force in this state are hereby continued in force, and the same shall be as effectual for all purposes after as before the Revised' Statutes go info effect.”

The validity of article 1400 was'recognized by this court in Stephens County v. Palo Pinto County, cited above, which was decided April 12, 1913, and the jurisdiction of Courts of Civil Appeals in such suits is final. Notwithstanding that decisS,on, the Legislature which 'met in 1915 has not seen fit to modify or repeal the statute. It is to be noted further that article 1400 in no manner purports to change, modify, or amend any law existing prior to 1895, but was merely a validating act.

All of the facts recited above with respect to the history of article 1400 greatly strengthen the presumption otherwise obtaining of its validity as against the objection thereto by appellee, and which presumption we must enforce, without regard to the question whether or not if it was improperly included in the revision of 1895 it was after-wards validated by its inclusion in the revision of 1911; which question we find it unnecessary to decide. And, as said in Stephens County v. Palo Pinto County, supra, article 1400 “is a wholesome statute, and should be liberally construed and enforced.”

In the present suit, it was agreed that no proceedings were had in the county courts of either of the counties relative to the establishment of the boundary between the two counties, and appellee insists that the commissioners’ courts of the two counties had no statutory authority to fix the boundary line, but that the authority so to do was vested exclusively in such county courts, and in the district court, under and by virtue of the provisions of chapter 4, title 28, Vernon’s Sayles’ Texas Civil Statutes, which embraces articles 1375 to 1386, inclusive. It is insisted that by article 1400 it was intended that boundary lines theretofore “recognized and established” were those only which had been established in accordance with the provisions of that chapter. We do not concur in that view. We do not think it could be reasonably supposed that the Legislature intended to validate boundary lines that had already been legally established and fixed upon the ground. Evidently the act was intended to preclude controversies which might arise in the future over lines which were then recognized as the true boundaries, and which were approximately correct, and the recognition of which did no violence to any constitutional provision. In the present suit, the proof shows that in order to determine the boundary in dispute, it was necessary to take as a starting point the northwest corner of Baylor county some 120 miles distant from the northeast corner of Lubbock county. The proof further shows that the correct location of that corner was in dispute prior to the year 1895; A. D. Kerr, the surveyor, testifying that in 18S8 and 1889 he located what he deemed to be the true northwest corner, of Baylor county, which was different from the .corner theretofore established by a surveyor named Wes-senrood. Kerr further testified that there was then a dispute about which was the true northwest comer, and that was one of the disputed issues upon the trial of the present suit.

In view of the foregoing conclusions, it becomes unnecessary to discuss the numerous assignments of error presented in appellant’s brief, or to refer further to the voluminous record before us, since it follows from what we have said that the trial court should have instructed a verdict in favor of the defendant, Hale county, and for the error in refusing so to do the judgment is reversed and judgment is here rendered that ap-pellee, Lubbock county, take nothing by its suit, and that the line surveyed by Ira Mil-lington be, and the same is hereby, adjudged to be the true boundary line between appellant and appellee.

Reversed and rendered.

On Motion for Rehearing.

In the first part of our opinion on original hearing we said:

“It was the contention of Lubbock county that the line heretofore supposed to be the true boundary was not such. * * ⅜ ”

The line referred to in that statement was the one established by Ira Millington. Ap-pellee now cites additional testimony to show that we were incorrect in our further statement, in effect, that until about 2 years prior to the institution of this suit no controversy arose between the officers of the respective counties relative to the question whether or not the Millington line was the true boundary line between those counties. A part of the testimony so referred to is that of the witness Elynn, who served as sheriff and deputy sheriff of Lubbock county for some 10 years prior to the trial of the suit, and was to the effect that during that time there were disputes between himself and the officers of Hale county relative to the territory which was within the jurisdiction of the respective counties. But he expressly said further that he did not know the location of the Millington line, and that the same was never pointed out to him. Further testimony of Judge Brown is also pointed out, to the effect that while the witness was county judge of Lubbock county the location of the boundary between the two counties was not involved in any aotion by the commissioners’ court of Lubbock county in the establishment of public roads or justice or “commissioners’ road precincts.”

Such testimony at best was of a negative character only, and in our opinion in no manner conflicts with the facts found by us as shown in our original opinion. Nor do we think that the fact that in the state abstract records there was some confusion with respect to whether or not certain surveys were in one county or the other tend in any material respect to show that the Millington line was not recognized by the commissioner of the general land office as the true boundary line between the two counties; since it is evident that such confusion is referable to the correct location of those surveys and not to the location of the Millington line, which was of record in the land office and was definite and specific.

Appellee earnestly insists, in effect, that as appellant did not move to set aside the findings of the jury upon special issues before judgment was entered thereon, it waived the right to complain that those findings were not supported by the evidence; reference being made specially to the finding by the jury in answer to special issue No. 3, to the effect, that prior to the enactment of article 1400 of the Revised Statutes the Ira Millington line was not recognized by the officers of the two counties as the true boundary between those counties-. In support of that contention the following decisions are cited: Essex v. Mitchell, 183 S. W. 399; Blackwell v. Yaughn, 176 S. W. 912; Scott v. E. & M. Nat. Bank, 66 S. W. 485; T. & N. O. Ry. Co. v. Weems, 184 S. W. 1103'; Smith v. Hessey, 134 S. W. 256. As we construe them, each and all of those decisions go no further than to hold that an assignment to the action of the court in rendering a judgment upon special findings by the jury because such findings are not supported by the evidence cannot be sustained, by reason of the fact that by article 1990, Vernon’s Sayles’ Texas Civil Statutes, such findings cannot be disregarded, but must constitute •the only basis upon which any proper judgment can be rendered, even though the findings upon which the judgment is based are not supported by the evidence, as announced in Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881, and Waller v. Liles, 96 Tex. 21, 70 S. W. 17. Article 1990 implies the authority of the trial court to set aside such findings before any judgment is rendered thereon and is to the effect that the court must render a judgment upon those findings unless the same are set aside, but we know of no decision to the effect that the losing party cannot, in his motion for new trial after (judgment is rendered, attack such special findings of the jury for lack of evidence to support them. In the decisions cited by the appellee it appears that no attack was made upon the findings of the jury as being unsupported by the evidence, but the attack was upon the judgment rendered upon the findings for lack of evidence to support such findings.

Article 1990 denies authority in the trial court to render a judgment non obstante veredicto. In that sense and to that extent only does the statute make the findings of the jury upon special issues conclusive upon the court. In the same sense article 1986, which is also invoked by appellee, makes such findings conclusive upon the parties; but not more so than is a general verdict which by article 1994 is required to be made the basis of the judgment. To give to article 1986 a strict literal construction would be to deny the parties the right to attack the verdict at any time or upon any grounds.

By article 1612 it is provided that whenever a motion for new trial is filed the errors therein assigned shall constitute the assignments of error on appeal. Rule 24 for Courts of Civil Appeals (142 S.'W. xii) provides that assignments of error, not distinctly set forth in the motion for new trial in the .trial court shall be considered waived. Rule 71a for district and county courts (145 S. W. vii) provides that a motion for a new trial shall be filed in all cases where parties desire to appeal or prosecute a writ of error from a judgment rendered in those courts, except when an error complained of is fundamental, and except in such cases as the statutes do not require such a motion. By article 2023 the losing party is allowed two days after rendition of a judgment within which to file a motion for a new trial. In view of those statutes and rules, it seems clear to us that, in his motion for new trial after judgment rendered, a losing party has the same right to attack -the special findings by a jury upon which the judgment is rendered, as he has to attack a general verdict, and upon appeal to complain of the action of the trial court in overruling said attack.

The record in the present suit shows that after the conclusion of the evidence and argument, and before the special issues were submitted to the jury, appellant requested a peremptory instruction directing a verdict in its favor, which was refused, and to which refusal appellant duly excepted. The record further shows that after the rendition of the judgment appellant, in its motion to set aside the judgment and grant a new trial, made a direct attack upon the finding of the jury in answer to special issue No. 3 upon the ground that there was no evidence to support it, and that the uncontradicted evidence was contrary thereto.

With the foregoing observations appellee’s motions for further findings to certify to the Supreme Court and for rehearing are overruled.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, 0. J.

text:
    KRUEGEL v. WILLIAMS et al.
    (No. 7786.)
    (Court of Civil Appeals of Texas. Dallas.
    April 21, 1917.)
    1. Judges <®=>47(1) — Disqualification to Act — Acting as Counsel.
    If a judge has been a counsel in the case in behalf of one party, he is disqualified to try the case, and his order dismissing it was void.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 214^219, 223.]
    2. Judgment <⅝=>386(3) — Setting Aside — Time foe Motion.
    Where the judge who dismissed a cause was disqualified by having acted as counsel, a motion filed at a subsequent term to set aside the judgment should have been granted.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 139.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by Herman Kruegel against H. H. Williams and others. From a judgment overruling motion to set aside and cancel an order dismissing the' suit, plaintiff appeals.
    Reversed and remanded.
    Herman Kruegel, of Dallas, pro se.
   RAINEY, 0. J.

This is an appeal from a judgment in the district court overruling a motion to set aside and cancel an alleged and void order of said court made at a former term dismissing a suit 'where appellant was plaintiff and appellees were defendants.

It is alleged in the motion to set aside and cancel the order dismissing the suit that the court had been of counsel of one of the parties to this suit, and that he had consulted with said party, and was therefore disqualified to try same, and therefore the order dismissing said suit was null and void. If the court had been of counsel, as charged, he was disqualified to try said cause, and the order dismissing it was void, and he should have sustained said motion.

The trial court held as a conclusion of law as follows:

“I hold that, tho above-entitled cause having been disposed of at a former term of this court, a motion to sot aside the judgment filed at this April, 1916, term of this court, same being a subsequent term thereof, tho court cannot entertain such a motion at this time.”

This holding was clearly erroneous, and appellant duly excepted thereto and filed his bill of exception. The court should have entertained the motion, although presented at a subsequent term, and if it be shown that he was disqualified, as charged, the motion should have been sustained and the cause reinstated. Johnson v. Cheney, 17 Tex. 336; Garrett v. Gaines, 6 Tex. 435.

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