author: RASBURY, J.

text:
    HARRIS v. WISE et al.
    (No. 7684.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 13, 1917.)
    1. Sequestration 3=^18 — Claim to Property — Transfer op Jurisdiction.
    Defendant, a resident of Henderson county, executed a chattel mortgage on personal property located therein to plaintiff; and the latter brought an action before a justice of the peace in Kaufman county to foreclose the mortgage and issued a writ of sequestration to Henderson county to which defendant’s wife interposed the statutory oath under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7769-7795, claiming the mortgaged property as her separate estate, and the officer fixed the value of the property at $250 and filed the papers in the county court of Henderson county. Held, that under the provision of the statute that, where a writ of sequestration is issued to another county and a person not a party to the suit claims the ownership of the property and the value of such property is inore than $200 and less than $500, the officer shall indorse the value of the property on the bond and file the papers in the county court, which shall thereby acquire jurisdiction to determine the issue of ownership, the exclusive jurisdiction was transferred to the county court of Henderson county to determine, not only the issue of ownership, but all other issues in the case, including the issues presented in the action in the justice court, and that court was divested of all jurisdiction in the matter.
    ’[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. 3=18.]

      2. Judgment ©=^489 — Void Upon Face— COLDATEKAU ATTACK.
    A judgment of a domestic court of general jurisdiction, void upon its face, may be collaterally attacked.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 924, 925; Dec. Dig. ©==>489.]
    Appeal from Henderson County Court; C. D. Owin, Judge.
    Action in justice court of Kaufman county by B. Harris against J. D. Wise, in which writ of sequestration was issued to Henderson county and levied on property claimed by Kate Wise, wife of defendant, which claim was filed in the county court of Henderson county. From a judgment of the Henderson county court in favor of claimants, plaintiff appeals.
    Affirmed.
    Richardson & Watkins, of Athens, and Royall R. Watkins, of Dallas, for appellant. W. R. Bishop and A. B. Coker, both of Athens, for appellees.
   RASBURY, J.

This is an appeal from the judgment of the trial court entered upon a peremptory verdict in favor of appellees in a suit under the statutory proceeding to try the right of property.

The essential facts forming the basis of the court’s action in directing verdict for appellees, and which are without dispute, are these: On February 3, 1915, appellant sued J. L. Wise, husband of appellee Kate "Wise, in justice court of Kaufman county, upon his promissory note for a sum within the jurisdiction of said court and to foreclose chattel mortgage on two mules, a wagon, and set of harness given by said J. L. Wise as security for the payment of said' note. Simultaneously with the filing of the suit, citation and writ of sequestration were issued directed to the proper officers of Henderson county, where the defendant J. L. Wise resided and the property was situated. Both were executed, the citation by delivering copy of same in person to J. L. Wise, and the writ of sequestration by the officer taking into his possession the personal property above described. Thereafter, on February 6, 1915, appellee Kate Wise made the statutory oath claiming the property so levied upon and tendered the bond required in such cases, whereupon the officer assessed the property as of the value of $250, filed the oath and bond in the county court of Henderson county, the situs of the property, and returned the writ issued by the justice of the peace of Kaufman county to that court, indorsing thereon the date he received the writ, its levy upon the property described, the fact that it had been claimed by ap-pellee who tendered affidavit and bond, and that he had assessed its value at $250 and had filed the affidavit and bond in the county court of Henderson county. Thereafter, on March 5, 1915, citation to appellee Kate Wise was issued by the justice of the peace in the suit against J. B. Wise, which, among other things, stated the purpose of the suit to be to foreclose as against her the chattel mortgage on the personal property claimed by her, which citation was in form and substance that required by law. Copy of the citation was delivered in person to appel-lee Kate Wise March 10, 1915, and return thereof made to the justice of the peace. Appellee Kate Wise, did not, in response to such notice, appear in justice court and assert any defense she had to the foreclosure of the lien. Subsequently, On March 27, 1916, judgment was entered in that proceeding against the defendant J. L. Wise for the amount of the note, interest, etc., and against both J. L. Wise and Kate Wise, appellee, for foreclosure of the chattel mortgage upon the personal property claimed by her. Upon said judgment, order of sale was issued and placed with the proper officer of Henderson county, who, proceeding thereunder, levied upon and took into his possession said personal property for the purpose of selling same to satisfy the judgment against J. L. Wise. Thereupon appellee Kate Wise, in the proceeding filed in the county court of Henderson county to try the right to said property, applied for and was granted injunction restraining the sheriff from further proceeding under the order of sale. Thereafter, by direction of the court, issues were tendered in the case to try the right to property as in such cases provided, and on trial, in addition to the facts we have just detailed, it was shown that the personal property in dispute was the separate property of Kate Wise, appellee; she having acquired the same in exchange for a small home purchased with money derived from insurance on the life of a former husband. It was also shown that Kate Wise, appellee, did not sign the note, nor the mortgage sued on in the justice court, nor authorize her husband to do so.

We will not discuss the assignments seria-tim, for the reason that we have concluded, upon the facts related, that the judgment of the justice of the peace foreclosing a lien upon the property claimed by Kate Wise is void. It is provided by the several articles forming title 129 of Vernon’s Sayles’ Oivil Statutes, as applicable to the issues in this case, in substance, that when a sheriff shall levy a writ of sequestration upon personal property, and it shall be claimed by one not a party to the writ, such person may upon filing the prescribed affidavit and bond be entitled to possession of such property and have the issue of ownership tried. If the writ under which the property was taken is levied in a county other than that of the justice or court issuing same, it is made the duty of the officer to indorse on the bond the value of the property as assessed by him and return the oath and bond to that court in the county where the levy was made having jurisdiction of the assessed sum, and at the same time return to the court issuing it the original writ, indorsing thereon that the claim was made and oath and bond given, etc., and to what justice or court the bond had been returned. When such proceedings are had, the clerk of the court to which such oath and bond are returned is required to docket the proceeding in the name of the plaintiff in the writ as plaintiff and the claimant as defendant, and such parties are required to thereafter plead, the one the facts relied upon as constituting his right to subject the property to execution, and the other the facts constituting the nature of his claim thereto. Omitting other provisions immaterial .here, it is further provided that, in case the defendant shall fail to establish his right to the property, judgment shall be rendered against him and the sureties on his bond for the value of the property taken by him. If such defendant shall within ten days froin such judgment return the property in as good condition as he received it, etc., such act shall operate as satisfaction of the judgment. In the event of a failure to so return the property, execution shall issue in favor of the plaintiff and against the defendant and his sureties for the amount of the claim.

It is our opinion, based upon the statutory proceeding invoked by appellee to try the right to the property sequestrated by appellant in the suit in the justice court in Kaufman county, that, when appellee tendered her oath and bond to the officer levying the writ of sequestration and he indorsed on the bond that the value of the property seized was $250 and filed both documents in the county court of Henderson county, custody of the property was ipso facto transferred to said court, which thereby acquired exclusive jurisdiction of the subject-matter of the controversy with the consequent fight to determine the issue of its ownership, including all other issues necessary or incidental to the main question. The act provides that, when the assessed value of the property is more than $200 and does not exceed $500, the writ shall be returned to the county court of the county where the levy was made. Such assessment, and not the subsequently proven value of the property, in the absence of fraud, controls the issue of jurisdiction. Cleveland v. Tufts, 69 Tex. 580, 7 S. W. 72; Leman v. Borden, 83 Tex. 621, 19 S. W. 160. So no issue, it appears, can arise as to the exclusive jurisdiction of the county court to try the issue of ownership. But it is contended by appellant that, even though it be conceded that the county court had such exclusive jurisdiction to try the right to the property and that appellee was in fact the owner thereof, the justice court nevertheless had authority to determine whether appel-lee had in fact mortgaged the property, and, if she had, the further right to foreclose such mortgage. While the contention is plausible and not without force, yet, if such right ever existed to so proceed in the justice court, it is so at variance with the provisions of the statutory remedy, it must be held to have been denied thereby. We base such conclusion on the clear intention of the Legislature, evidenced by the provisions of the act conferring the remedy of the trial of the right to property, to substitute, when the claimant is not a party to the suit, the bond for the property. As we have shown, the property by the statutes is to be delivered to the claimant, and, if the claim thereto its not sustained, judgment shall be rendered against the claimant and his sureties, not for the property, but for its value and certain consequential damages. It is true that claimant may at his option satisfy the judgment by a return of the property, and payment of the damages mentioned; but such option in no manner changes the fact that all other courts have lost jurisdiction of the subject-matter. Further, one of the purposes of the act was to prevent a confusion of issues in the original suit. Such purpose would be rendered wholly ineffectual by the construction placed thereon by counsel, when it is considered that in nearly every conceivable case the claimant could in like manner be made a party to the original suit and concluded therein as is sought to be done in this proceeding. Of course, had appellee been made a party to the original suit under allegations charging the execution of the chattel mortgage, a different question would be presented. Such course, however, was not pursued. Hence it follows that, if the claimant is not a party to the original suit, every issue which would defeat ownership of the property should be litigated in the proceeding to try the right to same, including the issue that the claimant in fact executed the chattel mortgage sought to be foreclosed in the original suit, since it seems that in the latter proceeding the mortgage lien may be asserted and foreclosed. Dupuy v. Ullman, Lewis & Co., 78 Tex. 341, 14 S. W. 790; Howard v. Parks, 1 Tex. Civ. App. 603, 21 S. W. 269.

It may be remarked, in response to the further contention that the attack upon the judgment of the justice court in this proceeding was collateral: Conceding the attack to be such a one as claimed, it was permissible, since the well-settled general rule is that a judgment of a domestic court of general jurisdiction void upon its face may be collaterally attacked. Such was the showing in the instant case, since it appeared from the judgment of the justice court that it attempted to foreclose a chattel mortgage upon personal property which had been transferred to another court with exclusive jurisdiction to adjudicate that issue.

There is another issue presented which standing alone would constitute error, but which, under our holding that the judgment is void, becomes immaterial, and for that reason is not discussed.

The judgment is affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. WEAVER.
    (No. 643.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 18, 1917.
    Rehearing Denied Feb. 8, 1917.)
    1. Receivers <©=>146 — Authority to Bind Property — Orders of Court.
    Beeeivers can bind the property in their hands or its proceeds only by such acts as the court may previously authorize or subsequently approve, and, in order to charge the property after its redelivery by receivers, _ the claimant must plead and prove the authority of the receivers.
    LEd. Note. — For other cases, see Receivers, Cent. Dig. §§ 253-256; Dec. Dig. @=>146.]
    2. Receivers <g=>183 — Authority to Bind Property — Petition.
    A petition against a railroad company, after it had resumed possession of its property, for damages to plaintiff’s property caused by the excavation by the receivers of a ditch in the street alongside the track and in front of plaintiff’s residence, which alleged that the receivers were authorized by the court to construct the track, that after they had constructed and raised the grade they excavated the ditch, fails to show that the excavation of the ditch was authorized or approved by the court which appointed the receivers, and is therefore insufficient.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366; Dec. Dig. <§=>183.]
    3. Pleading <§=>403(2) — Authority to Bind Property — Petition—Cure by Answer.
    The allegation of the answer that the receivers acted without authority in excavating the ditch did not cure the defect, since the petition must contain such affirmative allegations as will put defendant on notice of the facts on which plaintiff relied.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1344^-1347; Dec. Dig. <©=>403(2).]
    4. Railroads <©=>210 — Receivers—Authority to Bind Property — Extension of Railroad-Excavation oe Ditch.
    An order of the court which appointed receivers, authorizing them to extend the line of railroad along a certain street, does not authorize the excavation of a ditch along that street between the tracks and the abutting property.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 696-701; Dec. Dig. <©=>210.]
    5. Appeal and Error <©=>742(1) — Assignments of Error — Propositions.
    Assignments of error not followed by propositions and statements will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. <©=>742(1).]
    6. Railroads <§=>212 — Receivers—Redelivery of Property — Diability for Acts of Receiver.
    Under Act March 19, 1889 (Acts 21st Beg. c. 59) § 6, declaring that the discharge of a receiver shall not abate a suit pending against him, nor affect the right of any claimant to sue him after discharge, and giving the right to prosecute such action against the receiver alone, or to join the person whose property was once in his hands, and subjecting such property, when redelivered without sale, to all unpaid liabilities of the receiver in causes of action arising out of and during the receivership, a railroad property redelivered by receivers appointed by the federal court is liable in the state court in an action begun against the receivers for damages caused by the acts of the receivers, regardless of whether the decree of redelivery imposed such liability on the corporation or reserved to the federal court jurisdiction to determine such claims, especially where the federal court had not exercised its power, if it had any, to resume possession of the property.
    [Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 702-706; Dec. Dig. <©=>212.]
    7. Limitation of Actions <§=>109 — Accrual of Right — Acts of Receivers.
    The two-year statute of limitations does not begin to run against a railroad corporation which had resumed possession of its property after receivership for acts of the receivers until the resumption of possession.
    [Ed. Note. — For other cases, see Limitation of Actions, Gent. Dig. § 519; Dec. Dig. <©=>109.]
    8. Appeal and Error <©=>1045(3) — Harmless Error — Qualification of Jurors.
    Bills of exception, charging error in overruling challenges to jurors qualified by showing that the challenged jurors did not sit in the case, and that appellant did not object to any other jurors nor ask further challenge, do not show that the error complained of could have been reasonably calculated to cause an improper verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4126; Dec. Dig. <©=> 1045(3).]
    Appeal from District Court, Brewster County; Joseph Jones, Judge.
    Action by J. W. Weaver, originally commenced against S. B. Hovey and another as receivers, in which the Kansas City, Mexico & Orient Railway Company of Texas was made a defendant after the property was returned to it by the receivers. Judgment for the plaintiff, and defendant railway company appeals.
    Reversed and remanded for new trial.
    H. 8. Garrett, of San Angelo, Williams & Jackson, of Ft. Stockton, and W. Yan Sickle, of Alpine, for appellant. Martin & Martin and Ben G. Smith, all of Ft. Stockton, for ap-pellee.
   HARPER, C. J.

This is an appeal from a judgment for $3,000 in favor of appellee and against the Kansas City, Mexico & Orient Railway Company of Texas for cutting down a street upon which plaintiff was an abutting property owner. The suit was originally filed against the receivers of the railway company, appointed by the United States District Court. They were discharged, whereupon, by amended pleading, the company was made a party defendant, and for cause of action alleged: That S. B. Hovey and M. L. Mertz were the duly appointed and qualified receivers of the said railway company under an order of the United States District Court for the Northern District of Texas.. That, as receivers, they extended the line of railway from Girvin to Alpine and across Avenue D, a public street, and in close proximity to and along tlie full length of plaintiff’s property, and raised its grade so as to constitute a high embankment on which its tracks were located. That, after the receivers constructed the embankment and track, they excavated a large cut or ditch along said street which extended on each side of said track about 300 feet long and in front of his property. That immediately in front of his premises it has a depth of 6 feet with perpendicular walls which cuts off the approach of his premises, and that by reason thereof he is unable to use his sidewalk for ingress and egress. That his property (described) is used as a residence. That said ditch renders his property unsightly, etc., with other allegations descriptive of the cause of injury to his property. That, by order of the court, the properties of the railway company, including this portion of its road, was turned back to the company, and the receivers discharged. The order, in part, reads:

“Directing the delivery of said property to the railway company * * ⅜ expressly charged with and subject to: (a) All cóurt costs, etc.; (b) all of the liabilities which have heretofore been adjudicated ⅜ ⅝ * and which may hereafter be finally adjudicated and determined to be just, true, and correct demands against said Hovey and Mertz as receivers, arising out of the operation of the lines or property of the defendants by such receivers; (c) all of the indebtedness and liabilities owned by and due from the said * * * company which have been finally established and adjudged or which may hereafter be finally adjudicated by this court or by any other court of competent jurisdiction, and which may be found to be just, legal liabilities against the said railway company.”

Tliat the earnings, by reason of the operation of the railroad by the receivers, was expended in the construction of said road and its improvements, and that the revenue'so expended were in betterment of the road and greatly exceeded all claims heretofore established and now sought to be established against the company or its receivers.

Defendant answered by special exceptions: (1) That the claim is barred by the statute of limitations of two years; (2) that it does not show that the receivers had any authority to grade the street. General denial. Specially pleaded the statute of two years’ limitation. That, if the excavation was done by the receivers or any person acting under them, it was without authority. That the excavation is no part of the right of way of defendant railway company, and that, if it was done, it was done under an agreement between the county judge and commissioners’ court of the county and one Parker, and said Parker had no authority from the receivers or the defendant to do it. That therefore the defendant is not liable.

Many of the nineteen assignments raise the same questions, so we take them up for discussion in the order which we think most comprehensive.

The eighth charges error in the court not sustaining exception to the petition: (a) Because it did not charge that the excavation in the street was done by the receivers as such; (b) because it fails to show that it was done by the receivers, as such, in the line of their duties as receivers of the railway property, nor does it allege that the court ordered it done.

Receivers can bind the property in their hands or its proceeds only by such acts as the court may previously authorize or subsequently approve. The power of the receivers to incur some liabilities chargeable against the funds in their hands may be necessarily implied in their appointment from the nature of the duties to be performed, and this is especially true of receivers of railways, whose duty it is made to operate the road placed in their charge; but in order to charge the railway company, after it has received back its property, with liabilities incurred by the receiver, the party seeking recovery must plead and prove that the claim he asserts comes with the above rule, because otherwise the receiver may be personally liable and not the company. I. & G. N. Ry. Co. v. Herndon, 11 Tex. Civ. App. 465, 33 S. W. 377, and authorities there cited. Applying the rules announced above, it must be held that the petition is insufficient. T. & P. Ry. Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56.

Nor is the defect cured by any allegation in defendant’s answer as suggested by appellee. Plaintiff’s petition must contain such affirmative allegations as will put defendant upon notice of the facts relied upon as a basis of the cause of action, and the negative allegation in the answer, that the acts of the receivers in constructing the excavation was without any authority from the court appointing them, did not cure the defect.

Appellee further suggests that, the ap-' pellant having itself produced the order of the court authorizing the receivers to extend the line from Girvin to Alpine and impliedly to do this excavation, it cannot now complain that the petition was insufficient in failing to allege such order and authority. There is no question of the authority to extend the line, but the question here is: Did the court directly or impliedly authorize the construction of the ditch, or afterwards approve it? Or, are the allegations in plaintiff’s petition sufficient to charge that this street excavation was a proper or necessary work in the construction of the additional mileage?

The first, second, third, sixth, seventeenth, and eighteenth assignments charge that there is no evidence that the act of excavating the street was within the express or implied scope of the authority of the receivers. If the holding is correct that the petition is not sufficient to charge liability, evidence would be of no avail. However, in answer to the assignments, it is very doubtful whether there is any evidence in this record of probative force that this street was excavated by order of the court or approved by it after-wards, or that from its nature it can be necessarily implied to be a necessary part of the construction work on the additional mileage of road ordered by the court.

The fourth and fifth are not -followed by propositions and statements, so will not be considered.

The seventh is, in effect, that the decree discharging the receivers does not comprehend plaintiff’s claim in terms as one which can, be adjudicated in the state court, but adjudicated in the federal court.

In the order discharging the i eceivers and turning the railroad properties back to appellant, among other provisions made by the federal court, the following appeirs:

“It is further ordered, adjudged, and decreed by the court that all questions nit hereby disposed of are reserved for future adjudication, and the court reserves jurisdiction of this cause and of the property affected by this decree for the purpose of final disposition of all such questions and matters, and any part of this proceeding. and any claimant or intervener, whose claims have been or shall be filed herein, may apply to this court for further orders and directions as may be deemed right and proper. And the court reserves jurisdiction, upon due hearing, subject to the right of all parties interested to contest, to charge the property hereby directed to be delivered to the said defendant as aforesaid, with any and all liabilities which have been or which may hereafter at any time be finally adjudged against the receivers for or by reason of any act or omission of theirs in the administration of their trust as such receivers.”

It is evident that the object of the suit is to charge the properties of the railroad company with liability for the damage claims to have been sustained by reason of the act of the receivers in excavating Avenue D. The question is presented:. Does the above order reserve to the federal court discharging the receivers the exclusive jurisdiction of this suit?

The order of discharge of the receivers was made on the petition and application of the appellant railway company. As a part of the order of the federal court, discharging the receivers, appears the following:

“And it is further provided by the acceptance of the said the Kansas City, Mexico & Orient Railway Company of Texas of the provisions of this order and decree that it is deemed and held to have assumed all of sudh liabilities and indebtedness as herein provided for.”

The receivers were appointed by the District Court of the United States for the Northern District of Texas, on the 9th day of March, 1912. The excavating of Avenue D is alleged to have occurred in the month of May, 1913. Upon the order of the federal court, the receivers, beginning with the 9th day of July, 1914, delivered to appellant all of the lines, property, and assets of every kind, and their duties as receivers closed on said day.

The Act of March 19, 1889 (General Laws, p. 57), declares that the discharge of a receiver shall not work an abatement of a suit pending against Mm, nor affect the right of any one having a claim to sue him after discharge; it gives the right to prosecute such an action against the receiver alone, or to join with him the person or corporation whose property was once in his hands as receiver. The act further provides that all parties and corporations whose property has been placed in the hands of a receiver by order of court, and which was not sold by the receiver, and which property has been redelivered back to the original parties or corporation without sale, shall be liable and held to pay all of the unpaid liabilities of the receiver in causes of action arising out of and during the receivership, and the act makes other provisions which we need not here state, but refer to the act.

Our Supreme Court, in Texas-Pacific R. Co. v. Johnson, 76 Tex. 421, 13 S. W. 403, 18 Am. St. Rep. 60, held that the foundation of a cause of action such as the case at bar does not rest upon the order of the court appointing a receiver, but it does rest upon the statute, and, in the absence of statute, it would rest on the existence of the facts which under general principles applicable create a charge or lien, and no order of any court can change the effect of such facts or affect one not a party to the proceedings in which the order was made. The court in that case further held that so much of the order of the court as required intervention and provided a time within which this should be made was inoperative upon any right of appellee. But if the court had such power to resume custody of the company’s property, a sufficient answer to appellant’s claim in the assignment is that the court has not exercised such power in the case, and may not do so in any claim not reduced to judgment by intervention in that court. On a writ of error to review the judgment of the Supreme Court of Texas in the Johnson Case, supra (151 U. S. 81, 14 Sup. Ct. 250, 38 L. Ed. 81), Chief Justice Puller, speaking for the Supreme Court of the United States, in affirming the judgment, said that the order of the court appointing the receiver was not a decree in rem condemning the particular thing seized, but an order providing for the resumption of possession thereafter, if found necessary, to the end that such a decree might then be granted; and that the court was aware of no principle which would justify that court in holding that a court, under the circumstances existing, could part with its jurisdiction over property by a complete surrender thereof to its owner, and at the same time constructively retain jurisdiction over such property so as in that respect to bind those who would otherwise be unaffected by its orders. This case, as was the Johnson Case, is not one of a fund in court; nor is it a case of purchase in which compliance with stipulated conditions form part of the consideration, and the extent of the burden assumed is defined. The case of Missouri, K. & T. Ry. Co. v. Chilton, 7 Tex. Civ. App. 183, 27 S. W. 272, is in point on the question. The assignment is overruled.

Appellant’s ninth ground of error presents the question of the bar of the cause of action under the statute of two years’ limitation. Appellee filed the suit against the receivers on the 28th day of January, 1914, and before their discharge on the 9th day of July, 1914. Appellee’s third amended original petition, in which appellant was made a party defendant with the receivers, was filed February 7, 1916. The excavation of Avenue D causing the alleged damage sued for was alleged to have beqn done “about the month of May, 1913.” The petition alleges that the excavation was done by the receivers. When did appellee’s cause of action arise as to appellant? We think not until after the property had been turned back to appellant on its petition, accepting the property with all liabilities, as stated in the court’s order. Ap-pellee, prior to the return of the property, had no suit against the appellant for acts done by the receiver. Appellee sued the receivers. On the acceptance of the property on the conditions stated in the order and receiving the properties under said condition, appellant for the first time became liable. A receiver is the agent of the court appointing him, and not the agent of the owner of the property; and it is well settled, as a general rule, that the owner is in no manner responsible for the receiver’s acts. The court may make the liabilities of the receiver a charge upon the corpus of the property, and, upon sale, direct their payment from the proceeds. Where a sale is not made, and the owner receives the property charged with the receiver’s liabilities, the owner then becomes liable, and not before. The suit was not barred. Missouri, K. & T. Ry. Co. v. McFadden, 89 Tex. 138, 33 S. W. 853; T. & P. v. Huffman, 83 Tex. 286, 18 S. W. 741.

The tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth charge error in refusing to sustain challenges to jurors. The trial court qualified the several bills of exception to its action in overruling the challenges for cause by stating that the challenged jurors did not sit in the case, and that appellant did not object to any other jurors nor ask any further challenge. We fail to see how the error complained of, if it was error, could have been reasonably calculated to cause the rendition of an improper verdict or judgment in the case.

There was no error in withdrawing from the jury the testimony of the county judge, A. M. Turney, as complained of in the sixteenth assignment.

The nineteenth is that the verdict and judgment are excessive. Since the case is reversed for new trial, we express no opinion upon the question.

Because the pleading is insufficient to charge the properties of the railroad company with the acts of the receivers in excavating the street, the cause is reversed and remanded for a new trial.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, O. J.

text:
    AINSWORTH v. DORSEY.
    (No. 5725.)
    (Court of Civil Appeals of Texas.
    Jan. 19, 1917.)
    1. Homestead <@=>55 —Acquisition— Judgment Debtor.
    Where a judgment debtor bought land for the purpose of making it his homestead, and took possession and used it for that purpose as soon as he could lawfully obtain possession, the property was not subject to forced sale, although execution was levied upon it before there was any use of it by the debtor as a homestead, since the law allows the debtor in such cases a reasonable time to take possession, and nothing the creditor may have previously done can abridge his right in that respect.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ .77-80; Dec. Dig. <@=>55^
    2. Judgment <@=3768(1) — Lien — Registration— SUFFICIENCY.
    Under the statute requiring an abstract of judgment to. show the amount for which it was rendered, arid the amount still due, where an abstract failed to show the correct amount due upon a judgment because no allowance was made for a payment after judgment was rendered, the registration of such abstract did not fix the lien.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1325; Dec. Dig. <@=>768(1).]
    3. Homestead <@=>171 — Abandonment.
    The conveyance of homestead property to a third person to enable th.e grantor to borrow money from a bank and which was not intended to vest in the third person' any beneficial right to the land was not an abandonment of the homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 338; Dec. Dig. <@=>171.]
    4. Appeal and Error <@=>931(9) — Review — Presumption.
    Although the failure of the court to file conclusions of law and fact was not shown by a bill of exceptions, where the judgment contained a recital to the effect that when the judgment was rendered the defendant requested the court to make and file such findings, and the transcript does not contain any such findings, the appellate court will assume that none were filed.
    [Ed. Note. — For other cases, see Appeal and Error, Oent.Dig. §§ 3770, 3771; Dec.Dig. <@=>931(9).]
    5. Appeal and Error <@=>544(1) — Review — Bills op Exception — Reversible Error.
    Although when it is shown by bill of exception that timely request that the trial court file findings of fact and law was made, refusal of the trial judge to file such conclusions constitutes reversible error, where no bill of exceptions was taken to the court’s refusal of defendant’s timely request for conclusions of fact and law, and there is no verified statement in the record that defendant or his counsel were misled or prevented from presenting the bill of exceptions relating to the matter, the defendant may not have the case reversed because no conclusions of fact and law were filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2424; Dec. Dig. <@=>544(1).]
    Appeal from District Court, Falls County; Geo. H. Carter, Special Judge.
    Suit for injunction by Columbus Dorsey against B. W. Ainsworth. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. E. Rogers, of Marlin, and W. L. Eason, of Waco, for appellant. Nat Llewellyn, of Marlin, for appellee.
   KEY, O. J.

On May 13, 1914, B. W. Ains-worth recovered judgment in the county court of McLennan county against Columbus Dorsey for $533 and costs of suit. On the 16th day of June, 1914, an execution was issued upon that judgment, and on the same day the sheriff of McLennan county made his return thereon, stating that no property of the defendant had been found in that county subject to execution. By the will of Green Harrison, which was probated on October 20, 1914, a life estate in 110 acres of land in Falls county was bequeathed to Mrs. Anna Harrison, the surviving wife of Green Harrison, the will stipulating that after her death title to 25 acres thereof should vest in Columbus Dorsey, and the latter is the subject-matter of this suit. On the 24th day of December, 1915, Ainsworth caused another execution to be issued upon the judgment referred to, and on the same day that writ was levied upon the land in controversy, whereupon Dorsey brought this suit in the district court of Falls county, and sought an injunction for the purpose of preventing the sale of the land referred to, upon the ground that it was his homestead and exempt from forced sale. Other facts will be stated hereafter. There was a nonjury trial, which resulted in a judgment in favor of Dorsey and restraining further proceedings for the purpose of selling the land in satisfaction of Ainsworth’s judgment against him, and Ains-worth has appealed.

Under the first assignment of error, appellant presents the contention that he was entitled to judgment because he made a prima facie case by showing that he had obtained a moneyed judgment against appellee, that the same was kept alive by the issuance of execution thereon within one year from its date, and that he had fixed a lien on the land in controversy (1) by having an abstract of his judgment against Dorsey recorded and indexed in Falls county on November 20, 1915, and (2) that he had fixed another lien upon the land by having execution levied thereon, and the proof failed to show that appellee had any homestead rights in the land at the time appellant’s liens were fixed. The proof does show that appellant had an abstract of his judgment recorded and indexed in Falls county on November 20, 1915; and it also shows that appellee did not take possession of the land until after the 1st of January, 1916, and that he did no work and made no improvements thereon until after the. 24th day of December, 1915. The proof also shows that Mrs. Harrison, who sold her life estate in the land to appellee by deed dated December 2, 1915, had leased the land to a tenant for that year, and that although ap-pellee purchased Mrs. Harrison’s life estate on December 2, 1915, he had no right to possession of the land until after the 1st of January, 1916, whereupon, and within a’ reasonable time, he took possession of the same, moved his family thereon, and has since then occupied it as his homestead. The proof also warranted the trial court in finding that appellee negotiated with his aunt, Mrs. Harrison, for the purchase of her life estate in the property in June, 1915, and that he did so and subsequently purchased it with the intention of making it his homestead.

In Gardner and Wife v. Douglass, 64 Tex. 76, the proof showed that a lot, on which stood a dwelling house, was purchased nearly three months before the expiration of a lease to a third party, who continued to occupy it until the expiration of the lease. The purchaser declared h'is intention to his wife, and to no one else, to make the property his homestead, and it appeared that he could not obtain possession before the expiration of the lease. On the expiration of the lease he removed to and occupied the dwelling thereon. An injunction was sought to restrain the sale of the property under execution issued on a judgment which was rendered against the purchaser before the date of his purchase, and the Supreme Oourt held that the property was protected by the' statute which exempts the homestead from forced sale. That case, it seems to us, is analogous to and decisive of this case. In that case, as in this, the judgment debtor bought the land for the purpose of making it his homestead, took possession of it, and used it for that purpose as soon as he could lawfully obtain such possession; and it was held in that case, as it seems to have been held by the learned trial judge in this case, that the property was not subject to forced sale, though execution was levied upon it before there was any use of it by the debtor as a homestead. In this ease the fact that the creditor had an abstract of his judgment recorded (as well as having an execution levied) before the debtor took possession of the property takes it out of the rule announced in the other ease. The reason why such property is held to be exempt from forced sale is that when the law exempts property as a homestead, it allows the debtor, when he purchases property with the intention of making it his homestead, a reasonable time to take possession and use it for that purpose, and nothing which the creditor may have previously done can abridge the debtor’s right in that respect.

Furthermore, the abstract of judgment which appellant caused to be recorded in Falls county gave the amount shown by the face of the judgment, which was $533, as the amount then due, and stated that there were no credits thereon; whereas there was testimony sufficient to show (and we presume the trial court found in accord-anee with that testimony) that appellee had made a payment upon the judgment, consisting of one bale of cotton worth $38 or $39. 'The statute requires the abstract of judgment to show “the amount for which the same was rendered, and the amount still due upon the same”; and in the case of Evans v. Frisbie, 84 Tex. 341, 19 S. W. 510, it seems to have been held that when an abstract fails to show the correct amount due upon a judgment, because no allowance is made for a payment after the judgment was rendered, the registration of such abstract will not fix a lien. So it seems that the abstract which was recorded in this case was insufficient to fix a lien upon the land in controversy, regardless of tl)e question of homestead. That objection, however, does not apply to the execution and the levy thereof upon the land, which levy was made after appellee became the full owner, and before he took possession, of the property. But, for the reasons heretofore stated, and upon the authority of Gardner v. Douglass, supra, we hold that appellee’s homestead right related back to the time of his purchase from Mrs. Harrison; and that, inasmuch as he purchased the property for a homestead, and took possession thereof within a reasonable time after his right to possession accrued, the levy of execution upon it did not create a lien superior to his homestead right.

We note appellant’s contention that, inasmuch as appellee and his wife executed a deed conveying the property to a third person soon after appellant’s execution was levied upon it, the trial court was not justified in holding that appellee was entitled to have it protected as his homestead. There was testimony, given by both appellee and the person to whom he and his wife conveyed the land, which justified the trial court in reaching the conclusion that the transaction referred to was not intended to vest in such third person any beneficial right to the land, but was resorted to at the suggestion of a banker to enable appellee to borrow money from his bank. If the conveyance of the property to such third person was made for the purpose referred to, and not for any other purpose, we see no reason why appel-lee is not entitled to assert his homestead right as against appellant. In other words, if it was not intended to and did not prevent appellee from using the property as his homestead, then it does not prove that he abandoned his homestead rights.

Appellant has also assigned error because the trial judge failed to file conclusions of fact and law. The failure referred to is not shown by a bill of exception, but the judgment contains a recital to the effect that when the judgment was rendered, appellant requested the court to make and file such findings; and, as the transcript does not contain any such findings, we assume that none were filed.

It has been decided by our Supreme Court that, when it is shown by bill of exception that timely request is made, and the trial judge refuses to file conclusions of fact and law in all cases tried without a jury, such refusal constitutes reversible error, unless it is made to appear from the judge’s qualification of the bill or otherwise that it was through no fault of his that such conclusions were not filed. In this case no bill of exception was taken, nor is there any verified statement in the record, made by appellant or his counsel, to the effect that they were misled and thereby prevented from presenting a bill of exception relating to the matter until after the time had expired for filing bills of exception. In other words, if it had been made to appear that the judge promised to make and file conclusions of fact and law after the adjournment of the court, and the appellant was thereby prevented from presenting a bill of exception within the time, allowed by law, it may be that this court would hold that the question was properly presented; but such is not the condition of the record, and therefore, in fairness to the trial court, we feel constrained to hold that appellant is not entitled to have the case reversed because no conclusions of fact and law were filed. In replying to the assignment! of error relating to this subject, appellee’s counsel has stated in his brief that the trial judge offered to file conclusions of fact and law, and that the appellant stated, in substance, that he did not desire him to do so. That statement is not verified by the record, nor accepted by this court as a fact; but it will serve as an illustration of the proposition that something may have occurred after appellant made his request for conclusions of law and fact as shown by the judgment, which fully justified the trial judge in not filing such conclusions.

No reversible error has been pointed out, and the judgment is affirmed.

Affirmed.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    FIRST STATE BANK OF TEAGUE v. MUNGER et al.
    (No. 7676.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1916.
    Rehearing Denied Feb. 3, 1917.)
    1. Banks and Banking <S=>154(8) — Exchange — Actions — Evidence — Sufficiency.
    In an action on account by a bank against individuals wherein the bank alleged that, after beginning suit, money of defendants came into its possession, and that it held such money as a credit on the account, and in which suit a third person claimed such money and made another bank defendant as the depositary of a check for such amount, and such other bank by cross-action sought to recover such money on allegations that a check was drawn against funds of a third person on deposit with the plaintiff, made payable to another person, and that plaintiff placed the amount of the check to defendant’s credit and converted it to its own nse, evidence held insufficient to support judgment Eor cross-complainant.
    [Ed. Note. — Eor other cases, see Banks and Banking, Gent. Dig. §§ 526-529; Dec. Dig. <©=» 154(8).]
    2. Appeal and Error @=1169(1) — Disposition oe Cause — Reversal.
    A judgment must be supported _ by both pleadings and evidence, and lack of either will require reversal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. § 4531; Dec. Dig. @=1169(1).]
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Action by the First State Bank of Teague against B. A. Munger and others, composing the firm of Munger, Parker & Marshall, wherein Mrs. B. A. Munger and husband filed a cross-action, and the First State Bank of Bangs filed a cross-action against the Farmers’ & Mechanics’ National Bank of Fort Worth, and against the plaintiff, and the Farmers’ & Mechanics’ National Bank of Fort Worth prayed judgment against the plaintiff. General demurrer by the Farmers’ & Mechanics’ National Bank was sustained, and that defendant dismissed. Judgment for plaintiff against Munger and others, and for Mrs. Munger against the First State Bank of Bangs, and for the State Bank of Bangs against the plaintiff. Prom the last judgment, plaintiff appeals.
    Reversed and remanded.
    D. T. Garth, of Teague, for appellant. Boyd & Bell, of Teague, for appellees.
   TALBOT, J.

The appellant sued B. A. Munger, B. B. Marshall, and J. E. Parker, composing the firm of Munger, Parker & Marshall, on an account to recover the sum of 1844.91, together with interest. By an amended petition it was alleged that after the institution of the suit there came into the possession of the plaintiff the sum of $700, belonging to the defendant B. A. Munger, which was being held by plaintiff to be applied as a credit upon its account against said Munger, Parker & Marshall; that Mrs. B. A. Munger, the First State Bank of Bangs, and the Farmers’ & Mechanics’ National Bank of Ft. Worth, were each setting up some sort of interest in and to said $700, which was unfounded, and prayed that they be made parties to the suit, which seems to have been done, by service of citation. Thereafter, Mrs. B. A. Munger, joined by her husband, filed a cross-action in the suit for the $700 held by plaintiff, First State Bank of Teague, alleging that she deposited a check for $700 in the First State Bank of Bangs for collection, that said cheek was sent by the last-named bank to the said Farmers’ & Mechanics’ National Bank for collection and thence to plaintiff, the First State Bank of Teague, and by said First State Bank of Teague converted to its own use. The First State Bank of Bangs filed a cross-action in the suit against the Farmers’ & Mechanics’ National Bank of Ft. Worth and against plaintiff, the First State Bank of Teague, alleging, in substance, that Mrs. B. A. Mun-ger deposited with it a check for $700, and that it sent said cheek to the Farmers’ & Mechanics’ National Bank of Ft. Worth, which was by said Ft. Worth bank in turn sent to the plaintiff; that said check was drawn on funds belonging to Mrs. Tharp on deposit with appellant; that appellant passed the amount of the check to the credit of B. A. Munger and then converted it to its own use. The Farmers’ & Mechanics’ National Bank of Ft. Worth answered and prayed that, if any judgment was rendered against it, it have judgment for a like amount against plaintiff, First State Bank of Teague. The case coming on for trial, a general demurrer urged by the Farmers’ & Mechanics’ National Bank of Ft. Worth was sustained, and that defendant dismissed from the suit. The trial then proceeded, and a judgment was rendered in favor of plaintiff, First State Bank of Teague, against B. A. Munger, J. E. Parker, and B. B. Marshall for the amount sued for by it in the original action. A judgment was also rendered in favor of Mrs. B. A. Munger against the First State Bank of Bangs for the sum of $15 and in favor of the First State Bank of Bangs against the plaintiff, First-State Bank of Teague, on its cross-actions, for the sum of $700. From this latter judgment the plaintiff appealed.

Appellant contends by its first assignment of error that the trial court erred in rendering judgment against it in favor of the ap-pellee First State Bank of Bangs for the sum of $700, sued for in said appellee’s cross-action, because there was no evidence adduced upon the trial showing that appellant, First State Bank of Teague, was in any way responsible or liable to appellee First State Bank of Bangs for said amount, and said judgment was wholly without evidence to support it. This contention, we believe, is well taken. The entire evidence bearing upon the question as pointed out by appellant in its brief, and which is not controverted, appellee not appearing in this court, is as follows:

B. A. Munger, witness for defendant, testified as follows:

“My name is B. A. Munger. I am one of the defendants in this case. I live now in Coleman county. On February 25, 1911, my home was then in Teague, Tex. I purchased about one acre of land from J. D. Carlcy, over there on the south side of town. It did not have any building on it when I purchased it. I placed a building on it. It was a five-room bungalow or cottage. I was a married man at that time, and my wife was living. At the time I built the house we had one child. I came to Teague on August 13th, just a little bit before the town opened in the summer of 1906. We lived there boarding around until, I think, the following October, when I built my house. That was in 1907. I built a brick bungalow and occupied it the remainder of the time as my home. About the 25th of February, 1911, I sold that place to Hamlin for $1,500 or $1,650. I would not say positively which, $450 cash and notes for the $1,200. My household goods and everything were in the building when I sold it. After selling, I had these vendor’s lien notes for $1,200, and just after I turned the deed over to Mr. Hamlin — -they were in fact practically sold before the trade was closed, but it was not for a day or two after I turned the deed over to him that I sold the vendor’s lien notes to Mrs. Tharp. She gave me two. checks for them, one for $500 and one for $700. The $500 check I cashed, and the other one I was asked not to cash until on or about the 1st day of April. 1 turned that check oyer to the First State Bank of Bangs for collection. I have never heard of the check since. This check was given to me right after the sale of the homestead. I don’t remember now just the date, but it was bound to have been within a day or two. It was not cashed right then because Mrs. Tharp said she did not have sufficient funds to take the matter up then, but would have some collections in by that time. It was to be paid April 1st, on or about that time, I can’t say positively. That $700 was a part of the proceeds of the home at Teague. That check was drawn on the First State Bank of Teague, Tex. I left there March, 1911. Prior to the tíme I moved out there, I went to Coleman often. In the fall of 1910 I did not go out there and establish that as my homestead. I made that my home out there in the spring of 1911, March. My home is in Coleman county. I established that as my home in March, 1911, about the first of March. We sold our home here in Teague, and, as soon as 1 got these checks and the notes disposed of, we packed up and moved out there. I don’t remember the exact date, but it was about the first days of March.' The homestead we have out there is 200 acres. It is in Coleman county, about seven or eight miles from Bangs. There was $685 of this money drawn out of the bank at Bangs and put into that home after we deposited that check.”

Mrs. B. A. Munger testified as follows, to wit:

“My name is Mrs. B. A. Munger, the wife of defendant. Prior to February 20, 1911, we lived in Teague. We had just sold our home there, I believe, to a Mr. Hamlin. Before we sold it, I guess we lived in that house about four years. While we were living in Teague, we did not own any other home. That is the only home we had when we lived in Teague. We were occupying the house and had all of our things in there. We moved two or three or four days after we sold it, something like that. We picked up and moved out to Coleman county. I owned a piece of land of my own out there at that time. The money we got for the place here we put into the place out there improving it. The check for $700 given to us by Mrs. Tharp was made payable to me, I believe. I indorsed it and deposited it in the bank for collection. I have never seen it since. The bank there advanced the money on the check, most all of it, I believe, except about $15 that was not taken out. Mrs. Tharp’s check was drawn on the First National Bank; I think it was at Teague. I don’t know whether it was a negotiable check or not; I can’t say if it was just an ordinary check or not.”

Mrs. M. B. Tharp testified as follows:

“I live in Teague, Tex. Along about March of this year (1911), I bought some vendor’s lien notes from B. A. Mungei’. I bought $1,200 worth of notes. These notes were against Mr. Munger’s home which he had sold to Mr. Hamlin ; that was a little brick house. I paid $1,200 for those notes. I bought them about 27th, or 28th of February. I gave a check for $500, and the first day of April I was to pay over the other $700. I gave Mr. Munger a check for $700, but I don’t remember who it was made payable to. I have made a search for that check among my papers, and I could not find it, and 1 went to the First National Bank, and they could not find it there. My bank book at the First National Bank shows that check was paid. Here is the stub in my check book which shows that I gave him a check for $500 on February 27th. The bank book shows that the $700 check was paid the 1st of April. It was charged to my account on that day, April 1, 1911. I don’t remember whether I ever had that check or not. According to my stubbook, this check was made payable to B. A. Munger. Mr. Foster wrote the check, and I signed.”

It is clear, we think, that this evidence is wholly insufficient to support the judgment rendered in favor of the appellee the First State Bank of Bangs. It does not show that the check for $700 given by Mrs. Tharp to B. A. Munger was drawn on the appellant, First State Bank of Teague. On the contrary, it shows that said check was drawn on the First National Bank. It does not show that the money which appellant alleged it had in its possession belonging to B. A. Munger was collected on or passed to the credit of the said Munger -in satisfaction of said check. That money, so far as the testimony discloses, may have come into the hands of the First State Bank of Teague from an entirely different source and altogether independent of the check given by Mrs. Tharp. Indeed, the testimony fails to show that the First State Bank of Teague ever had any money on deposit belonging to Mrs. Tharp subject to the payment of the check in question. There may be testimony tending to show that the “First National Bank” had funds in its possession belonging to Mrs. Tharp against which the check might have been drawn, and that the passbook given by that bank to Mrs. Tharp showed that it had paid the check; but it does not appear that the First State Bank of Teague and the said First National Bank are one and the same institution, or that the First State Bank of Teague ever received from the First National Bank or from any other source the money collected on said check. The appellee First State Bank of Bangs sought to recover upon allegations to the effect that the check in question was drawn against funds belonging to Mrs. Tharp on deposit with the appellant, First State Bank of Teague, and that appellant, having passed the amount of the check to B. A. Munger’s credit, converted it to its own use. The evidence failed to establish these allegations, and it is elementary that a judgment must be supported by both pleadings and evidence and that the lack of either will require its reversal.

For lack of evidence to support it, the judgment appealed from is reversed, and the cause remanded.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=nFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO PORTLAND CEMENT CO. v. GSCHWENDER.
    (No. 5774.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1917.)
    1. Master and Servant @=>258(18) — Action nor Death — Pleading — Negligence of Vice Principal.
    In action for damages for electrocution of plaintiff’s deceased upon turning an electric switch as commanded by his foreman, negligence of the vice principal in ordering deceased to throw the switch held sufficiently pleaded.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 833; Dec. Dig. @=> 258(18).]
    2. Appeal and Error @=>843(1) — Review.
    Where a case is reversed and remanded on other grounds, assignments of error attacking the sufficiency of evidence to sustain the judgment should not be discussed by the appellate court, in view of another trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; Dee. Dig. @=>843(1).]
    3. Death @=>41 — Action — Necessary Parties.
    Rev. St. art. 4698, provides that in action for death damages shall be for the sole and exclusive benefit of the surviving husband, wife, children, and parents of the deceased person. Article 4699 provides that the action may be brought by all of the parties entitled thereto, or by any one or more for the benefit of all. Held, in such action by ⅜ surviving wife, where there was no allegation that the suit was instituted for the parents of deceased as well as for the widow, and it appeared on the trial that the parents were living, it was error to refuse postponement of the trial that they might be made parties; failure to have all the statutory parties joined going to the very foundation of the action.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 56, 57, 59; Dec. Dig. @=>41.]
    4. Death @=>41 — Action — Necessary Parties.
    In such case, knowledge by defendant before trial of existence of surviving parents of deceased does not relieve plaintiff from the duty to have them joined as parties.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 56, 57, 59; Dec. Dig. @=>41.]
    5. Death @=>1 — Presumption—Continuance of Life.
    Evidence in death action that parents of deceased were living in 1913 did not show that they were living in 1915.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. @=>l.j
    Error from District Co.urt, Bexar County; R. B. Minor, Judge.
    Action by Mrs. G. A. Gsehwender against the ,San Antonio Portland Cement Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Arnold, Cozby & Peyton and Hertzberg, Barrett & Kercheville, all of San Antonio, for plaintiff in error. Ben H. Kelly and Chambers & Watson, all of San Antonio, for defendant in error.
   FLY, C. J.

This is a suit by the defendant in error, as the surviving wife of G. A. Gsehwender, to recover damages for his death, which it was alleged occurred while deceased, in the discharge of his duty as an employs of plaintiff in error, was turning a switch as commanded by his foreman. The trial was without a jury and resulted in a judgment for defendant in error in the sum of $7,000.

The first and second assignments of error are overruled. They assail the action of the court in basing the judgment on a finding that the vice principal was negligent in ordering deceased to throw the switch; because there was no pleading upon which to base the finding. The following quotations from the petition fully answer the assignments of error:

“Plaintiff alleges: That on or about March 23, 1915, while engaged in the performance of his duties as assistant electrician for the defendant, the San Antonio Portland Cement Company, and without fault on his part, the said G. A. Gsehwender received an electric shock from which he then and there died the same date. That said G. A. Gsehwender was an inexperienced hand, as defendant, the San Antonio Portland Cement Company, well knew, knowing little or nothing about the handling or effects of electricity, but that, notwithstanding this fact, said defendant through its chief electrician requested and directed the said G. A. Gsehwen-der to turn on a certain switch in its plant where it used and handled electricity in its business, and the said G. A. Gsehwender, acting under the said order and directions of his superior as was his duty to do, and being unaware of any danger by reason of ignorance or inexperience which said defendant well knew, and from the further fact that to all appearances there appeared no danger therein, he took hold of some switch or lever or other instrument unknown to plaintiff and received the electric shock that caused and produced instant death. That, just before the death of said Gsehwender, the defendant, San Antonio Portland Cement Company, was repairing some of its machinery, preparatory to using- an electric motor connected with and controlled by a switch through wires on which electricity was transmitted, and that said Gsehwender was directed and instructed by said defendant to pull or turn on a certain switch that said motor might be tested out and that it was his duty to do so, and, as he undertook to do so, he in some manner unknown to plaintiff came in contact with a live wire, charged with electricity of sufficient strength and voltage, which then and there caused his death without fault on his part.”

The allegations of the order being given are plain and clear. In the sixth paragraph of the petition, referring to the different acts of negligence set out in the two paragraphs immediately preceding, it was alleged:

“That the above acts, omissions, and derelictions of said defendant as set out in the last two preceding paragraphs were the proximate cause of the death of deceased,” etc.

In the paragraph immediately preceding it is alleged that the order was given and obeyed by deceased.

The third, fourth, fifth, and sixth assignments of error attack the sufficiency of the evidence to sustain the judgment, and in view of another trial should not be discussed by this court.

The seventh and eighth assignments of error assail the action of the court in refusing an application of the plaintiff in error to postpone the trial until other necessary parties to the suit should be brought in as parties. Article 4698, Revised Statutes, provides that the action for damages for the death of a person “shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been caused, and the amount recovered therein shall not be liable for the debts of the deceased.” Article 4699 provides:

“The action may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all.”

In this case there was no allegation that the suit was instituted for the benefit of the parents of deceased as well as for the .widow, but it was for the sole benefit of the widow. Railway v. Pennington, 166 S. W. 464. The failure to have all the statutory'parties joined goes to the very foundation of the action. Railway v. Culberson, 68 Tex. 664, 5 S. W. 820.

It appears from a bill of exceptions taken by plaintiff in error that, after defendant in error had closed her case, plaintiff in error placed her on the stand and ascertained that the father and mother of the deceased were living at that time in Rayland, Ohio, and that plaintiff in error sought a postponement of the trial, in order that they might be made parties. The postponement was refused. The bill of exceptions was allowed, but appended thereto is what is denominated a qualification, in which it is stated that the attorneys for plaintiff in error knew on June 14, 1915, that defendant in error had sworn that she was married in March, 1913, and that the father and mother of deceased at that time lived in Martin’s Perry, Ohio. It would seem that the motion to postpone was overruled on the ground that plaintiff in error knew that the parties had not been made parties and that they were living in 1913. Of course, that was no ground for refusing the motion. The parents were necessary parties, and the fact that the plaintiff in error may have known of their existence before the trial did not lift the burden from the defendant in error - to have all necessary, statutory parties before the court. However, the testimony of defendant in error in June, 1915, did not show that the parents were then living, but that they were living in 1913. Railway v. Howell, 105 S. W. 560. Defendant in error, as disclosed by the record, on cross-examination swore: “Mr. Gschwender’s father and mother are living in Rayland, Ohio.” It has been held many times that the defendant in a death case has the right to have all interested parties included, and that, if it should be shown on a trial that parties have not been/included in the petition, the defendant should be accorded a postponement of the trial until all the parties could be joined in the suit. Railway v. Howell and Railway v. Pennington, herein cited; Railway v. Mertink, 101 Tex. 165, 105 S. W. 485. As said in Railway v. Wilson, 85 Tex. 516, 22 S. W. 578:

“It is not an open question in this court that, when the evidence develops the fact that the deceased * * ⅜ had other relatives who under the statute can share in the damages recovered for his death, the proceedings must be arrested until the pleadings are so amended that the suit can be conducted for the use of all of the beneficiaries.”

If the trial had been suspended for a short time, no doubt the parents could have been reached by telegraph, and their consent to be joined as plaintiffs obtained, and probably thereby another trial avoided.

Por the reason that the parents of deceased were not made parties, the judgment is reversed, and the cause remanded.
      @=>For other cases see same topic and KEY-NUMBER in all itey-Numbered Digests and Indexes