author: LANE, J.

text:
    KELLY et al. v. KELLY.
    (No. 6954.)
    (Court of Civil Appeals of Texas. Galveston.
    June 8, 1915.)
    1. Infants <&wkey;113 — Judgment Against Infants — 'Valid ity.
    Where infants sued as adults were served with process and the proceedings of the trial did not disclose that they were infants, a judgment against them was voidable only.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 321; Dec. Dig. &wkey;113.]
    2. Infants <&wkey;115 — Judgments—Review.
    Where error in rendering judgment against a minor, for whom there was no guardian, or guardian ad litem, appears on the face of the record, the error may be taken advantage of by appeal or writ of error.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 305, 326-332; Dec. Dig. &wkey;115J ,
    3. Infants <&wkey;110 — Judgments—Review.
    Where error in rendering judgment against a minor not represented by a guardian does not appear on the face of the record, it can be availed of only by a proceeding to set aside the judgment in the court rendering it.
    [Ed. Note. — Por other cases, see Infants, Cent. Dig. | 314; Dec. Dig. <&wkey;>110.]
    4. Public Lands <&wkey;172 — Surveys—Vacancy Subject to Resale.
    Where the limits of a survey of public lands can be certainly known by its own description, any excess in acreage embraced within its limits, unless considerable, is not a vacancy subject to resale.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. &wkey;172.]
    5. Public Lands <&wkey;172 — Surveys—'Vacancy Subject to Resale.
    The limits of a senior patent were actually established by a surveyor, who established and fixed a corner at two pine trees remaining on the ground. By so establishing the corner, there would be included within the survey about four acres more than was intended to be included, in a sale of 320 acres. Meld, that the excess did not invalidate the senior patentee’s-title to the excess, and a junior survey could not encroach thereon.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. &wkey;172.]
    6. Boundaries <&wkey;>3 — Calls eob Course and Distance — Calls eob Natural Objects.
    A location call for rivers, creeks, trees, and other natural objects ordinarily controls a call for course and distance.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <S^>3.]
    7. Public Lands <&wkey;178 — Senior and Junior Patentees — Stipulations—Estoppel.
    A stipulation between senior and junior patentees holding under patents which conflict, which asks the Commissioner of the General Land Office to grant patents according to field notes on file in his office as attached sketch shows the position of each tract, does not estop the senior patentee from claiming the land within his patent, issued by the Governor.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. &wkey;178J
    Error from District Court, Jasper County; A. E. Davis, Judge.
    Action by L. L. Kelly against Alfred Kelly and others. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.
    Powell & Huffman, of Jasper, for plaintiffs in error. Garland Smith, of Jasper, for defendant in error.
   LANE, J.

L. L. Kelly, plaintiff in the court below, brought this suit against Alfred Kelly, Lonie Kelly, Susie Kelly, Bennie Kelly, and Flonie Kelly in the ordinary form of trespass to try title to recover the title to 320 acres of land, a part of section 124, Houston & Texas Central Railway Company survey, situated in Jasper county. The defendants answered: First, by plea of not guilty; second, that they are the legal owners of so much of the land sued for by the plaintiff as is embraced in the field notes of an 80-acre survey patented to S. L. Kelly, which is described in their said answer; third, by disclaiming any right, title, or interest in the land sued for, except so much thereof as may be embraced within the boundaries of the 80-aere survey made for S. L. Kelly; fourth, by plea of limitation of three years; and, fifth, that on the 16th day of September, 1908, plaintiff, and all other persons for whom any portion of said section 124 had been surveyed, executed a written agreement to the effect that each signer should only take so much of said section as was described in the field notes then of record in the General Land Office, and that patents should be granted accordingly, which said agreement was filed in the General Land Offiqe of Texas on the 17th day of September, 1908, and that by said agreement plaintiff is estopped from claiming more land of said section than is set out by the field notes made for him which were of record in said land office. The case was tried before a jury, which, upon instruction from the fcourt, returned the following verdict: “In accordance with the court’s instruction, we, the jury, find for the plaintiff L. L. Kelly.” Judgment was entered in accordance with the verdict of the jury.

The first assignment of error in the brief of plaintiffs in error is that the court erred in rendering judgment against Bennie Kelly, Susie Kelly, and Flonie Kelly, because they were sued as persons sui juris, when in fact they were minors without guardians, and had no guardian ad litem appointed to represent them in the trial of the cause, by the trial judge after it became known from the testimony that they were such minors.

This suit was brought by plaintiff against Alfred Kelly, Lonie Kelly, Bennie Kelly, Susie Kelly, and Flonie Kelly as persons sui juris. The pleadings of neither party mention the fact, if a fact, that any oí the defendants were minors, but both treat them as adults. The only thing occurring in the trial of the cause appearing from the record which is claimed to in anyway refer to the fact that defendants Bennie, Susie, and Flonie Kelly were minors, is to be found in the testimony of plaintiff L. L. Kelly, as follows: “There was a conflict between me and Alfred and the minor children of Sam and Sam’s widow.” There is nothing .in the other portion of the testimony of this witness or in the testimony of any other witness which leads to the conclusion that, in the use of the words “there was a conflict between me and Alfred and the minor children of Sam and Sam’s widow,” plaintiff was referring to defendants Bennie, Susie, and Flonie Kelly as being the minor children of Sam and Sam’s widow. At least, it will hardly be contended that such testimony was such proof as would sustain a finding that said defendants were minors at the time of the trial of this case. But, if it now be conceded that Bennie,' Susie, and Flonie Kelly were minors, the judgment rendered against them is not void, but only voidable. These parties were sued as parties sui juris. They were properly served with process, and neither pleaded nor proved that they were minors. The record of the entire proceedings of the trial fail to disclose that they were in fact minors, and this fact seems not to have been presented to the trial court. Alfred and Lonie Kelly for themselves and as next friends for the other defendants on the 1st day of July, 1914, more than six months after the rendition of the judgment in the case, filed their petition for a writ of error to bring this cause before this court. Bennie, Susie, and Elonie Kelly were never mentioned as minors until this petition was filed. Where a minor has been served with process, as in this case, a judgment rendered against him is voidable but not void. When the error appears, says Judge Gaines in the case of Wallis, Landes & Co. v. Stuart, 92 Tex. 568, 50 S. W. 567, upon the face of the record, that the defendant was a minor, advantage may be taken of it by an appeal or writ of error in the nature of an appeal; but, if it does not so appear, it can be availed of only by a proceeding to set aside the judgment in the. court in which such judgment was rendered. See Taylor v. Rowland, 26 Tex. 293; Wallis, Landes & Co. v. Stuart, 92 Tex. 568, 50 S. W. 567; Butner v. Norwood (Civ. App.) 81 S. W. 78.

As the error complained of does not appear upon the face of the record of the proceedings of the trial of this case, we would not be warranted in reversing the judgment of the lower court upon the error assigned, and we therefore overrule the assignment.

While plaintiff in error presents his second and third assignments, they present but one complaint, and that is that the evidence did not warrant the court in instructing a verdict for plaintiff L. L. Kelly. We shall therefore consider and dispose of them as one assignment.

On the 23d day of September, 1908, Gov. T. M. Campbell issued a patent to L. L. Kelly (appellee) for 320 acres of land described as follows:

“S. % of section No. 124, H. & T. C. Ry. Co. certif. No. 25/1223, in Jasper county. Beginning at the S. E. corner of section No. 124, the same being the S. E. cor. of this sur. Thence N. 950 vs. 2nd. cor. fr. which a pine brs. S. 5 W. 8 Vio vrs. Do. brs. S. 46 W. 4 yrs. Thence W. 1900 vs. 3d. cor. a pine brs. S. 18 W. 24 vs. Do. brs. S. 16 E. 22 yrs. Thence S. 950 vs. 4th cor. in the S. B. line of section No. 124, fr. wn. a pine brs. S. 3 E. 11 vs. Do. brs. S. 72 deg. 30' 12 vs. do. brs. S. 42 E. 12 vs. Thence E. with the S. E. line of section No. 124, 1900 vs. to the place of beginning.”

On the 18th day of November, 1909, more than a year after the patent was issued to L. L. Kelly, Gov. Campbell by patent conveyed to S. L. Kelly, through and under whom defendants in error claim 80 acres, a part of said section 124, Houston & Texas Central Railway Company certificate No. 25/1223, which was so described as to include .within its limits about four acres of the land theretofore patented to L. L. Kelly, and it is this conflict in these two surveys that brought about this suit.

The undisputed facts show that L. L. Kelly had the tract of land which was patented to him on September 23, 1908, surveyed by the county surveyor of Jasper county on the 16th day of August, 1907,' and had the same duly recorded. Some time thereafter S. L. Kelly and others, desiring to purchase the remainder of said section 124 in tracts of 80 acres, had their several tracts surveyed. After said surveys were made, the conflict above mentioned was discovered, and thereafter on the 17th day of September, 1908, L. L. Kelly (appellee), S. L. Kelly, W. T. Davis, Joe Davis, and S. Davis executed the following instrument:

“Kirbyville, Texas, September 16, 1908.
“To the Commissioner of the General Land Office, Austin, Texas: Know ye, that we, owners, the undersigned ask that you grant patents according to field notes that is on file in that office, on section No. 124, H. & T. C. Ry. Co. in Jasper Co., Texas, attached sketch shows position of each tract.
“Respectfully yours, W. B. Bean.
“L. L. Kelly.
“S. L. Kelly.
“W. T. Davis.
“Joe Davis.
“S. Davis.”

As before stated, Gov. Campbell, by patent of date September 23, 1908, conveyed to L. L. Kelly the land for which he sues. The undisputed evidence shows that the land in controversy is embraced within the boundaries of the land conveyed to L. L. Kelly by beginning at the southeast corner of said section No. 124 and then running west to the two trees called for in his patent, which are still standing and identified; but if we begin at said southeast corner and run west 1,900 varas, course and distance called for in his patent, and stop at that point, the land in controversy will not be included within the boundaries of L. L. Kelly’s tract, but will be included within the boundaries of the 80-acre tract conveyed to S. L. Kelly, through whom plaintiffs in error claim.

It is strenuously contended by plaintiffs in error that, as it is shown that by running the course and distance only, called for by the patent to L. L. Kelly, he would get 320 acres called for by his conveyance, and that in such event plaintiffs in error would get the 80 acres called for by the conveyance to S. L. Kelly, but that, if the line of L. L. Kelly is to run to the trees called for and identified in his patent as his corner, he will get about four acres more than 320 acres called for in his patent, and that plaintiffs in error will get a correspondingly less acreage than called for by the patent to S. L. Kelly, and that therefore eauity demands that each party be given the number of acres called for by their respective patents.

We cannot sustain the contention of plaintiffs in error. Where the limits of a survey can be’certainly known by its own description, any excess in acreage embraced within its limits, unless considerable, will not constitute a vacancy subject to resale. Booker v. Hart, 77 Tex. 146, 12 S. W. 16; Freeman v. Mahoney, 57 Tex. 622; Reeves v. Roberts, 62 Tex. 550; Fagan v. Stoner, 67 Tex. 286, 3 S. W. 44; Lilly v. Blum, 70 Tex. 704, 6 S. W. 279.

We know where the lines of the L. L. Kelly tract were actually established by the surveyor; in fact, there is no dispute but that his northwest corner, which is the bone of contention, was established and fixed by the surveyor at two pine trees still found upon the ground. We know that, by so establishing his northwest corner and in consequence of his west line, said line would -be some 20 varas further west than the distance called for would place it, and that there would be included within his survey about four acres more than was intended to be so included, but this excess could not invalidate his title to said excess so as to authorize a junior survey to encroach thereon. The general rule that a location call for rivers, creeks, trees, and other natural objects will ordinarily control a call for course and distance is too well settled in this state to require citation of authorities in its support.

Plaintiffs in error also insist that defendant in error is estopped to claim the land in controversy by reason of the agreement set out herein. We see nothing in said agreement that should have such effect.

From what has been said, we think it clear that no judgment other than the one rendered would have been warranted from, or supported by, the evidence; and it therefore follows that the court did not err in refusing the motion of plaintiffs in error for an instructed verdict for plaintiffs in error, and in rendering judgment for defendant in error. Therefore the judgment of the trial court is affirmed.

Affirmed.
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source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    BAPTIST CHURCH OF MADISONVILLE v. WEBB, County Judge, et al.
    (No. 7035.)
    (Court of Civil Appeals of Texas. Galveston.
    May 6, 1915.
    Rehearing Denied May 27, 1915.)
    Nuisance &wkey;o3 — Countv Jaii/ — “Nuisance Pee Se.”
    A county jail is not a “nuisance per se,” nor does it necessarily become such by using it for the purpose for which it was built, though it may become such in the manner of its use, and the fact that crazy and intoxicated inmates of a former jail on the same site had on occasions so deported themselves as to cause annoyance to churchgoers, and had disturbed public worship in plaintiff’s church, situated about 100 feet away, was not proof that such conduct would be permitted in the future; but the county authorities, if not preventing insane inmates from disturbing religious worship, or if maintaining the jail so as to interfere with the comfort and enjoyment of the church, might be enjoined from maintaining a nuisance, though it would not be enough that the jail’s proximity would cause mental annoyance, tending to lessen the value of the church’s property.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. <@=^3.
    For other definitions, see Words and Phrases, First and Second Series, Nuisance Per Se.]
    Appeal' from District Court, Madison County; S. W. Dean, Judge.
    Suit for injunction by the Baptist Church of Madisonville against Joe E. Webb, County Judge, and others. From an order refusing the injunction prayed for, plaintiff appeals.
    Affirmed.
    W. J. Poole, R. J. Randolph, and J. M'. Brownlee, all of Madisonville, for appellant
   McMEANS, J.

The Baptist Church of Madisonville brought this suit, praying for injunction to restrain J. E. Webb, county judge, and the county commissioners’ court, of Madison county, from building a county jail on a lot in the city of Madisonville owned by the county, situated about 100 feet from the Baptist Church. From an order-made by Hon. S. W. Dean, district judge, in vacation, refusing the injunction prayed for, the plaintiff has appealed.

While the matter was determined in vacation, it appears that the proceedings partook very much of the nature of a trial upon the merits in term time, in that witnesses were summoned, sworn, and examined, and the facts largely shown by oral testimony; the judge filed findings of fact and conclusions of law; bills of exceptions were reserved, and assignments of error filed;. and a statement of the facts proved at the trial, duly agreed to by the parties and approved by the judge, accompanies the transcript on this appeal. As the findings of the judge seem to contain a correct epitome of the evidence, we adopt the same as our fact findings:

“The plaintiff herein, the Baptist Church of Madisonville, is composed of about 230 members, and has its regular officers and pastor, and is in possession of and owns block 17, composed of lots Nos. 1, 2, 3, and 4, of the town of Madisonville, in Madison county, Tex., and J. M. Brownlee, Jr., W. D. Morgan, and P. H. Orriek are trustees. Madison county, Tex., was organized by act of the Legislature in January, 1853, and has been an organized county since said date, and has always had its set of officers and the seat of government at Madisonville, in Madison county, Tex., since the organization of the county. ’
“The county jail of Madison county, Tex., was erected upon the lot on which it now stands in 1S56, or prior thereto. It was first a one-story log jail; afterwards, in 1873, was reconstructed, and the lower story remained constructed of logs, and the second story was a frame construction, and this jail was used by the county until some time between 1883 and 1887, when the brick jail, which is now being torn down for the purpose of erecting a new jail, was erected and has been used by the county as a jail up to the present time. Lately the county, through its commissioners’ court, has contracted for the erection of a two-story jail, brick, on the same site upon which the old one has stood that is being torn down for the erection of the new, and material is partly on the ground now, and is being placed on the ground for the erection of the new jail. This new jail, according to the testimony of the county judge, will be a modern structure, and is to have a septic tank for the protection of the city of Madisonville from contamination by reason of the jail being located near the courthouse square.
“The jail is located upon the block lying immediately southwest of the public square and touching upon the public square. Upon this block are also the following: A hotel next to the square; a blacksmith shop on the southeast corner of this block, and next to the Baptist church; the residence of a negro woman on the southwest corner of this block; and on the northwest corner the bottling works operated by Mr. M. 0. Goode. The blacksmith shop lying next to the Baptist Church occupies 55 feet of the south end of the block, and immediately next to it is the county jail, occupying a lot 27% feet wide; the block being 220 feet square. There is a street immediately south o'f the blacksmith shop, and immediately south of this street is the block of land on which the Baptist Church is located. The main body of the church is 105 feet from the county jail, and at its nearest point it is 98 feet from the county jail. J. W. Creath in 1856 deeded this block of land to the Baptist Church of Madisonville. This church was not then in existence, but was organized years later, and I find as a fact that the sale was intended for the Baptist Church when so organized, and I find that the Baptist Church of Madisonville is now the owner of this block of land.
“In 1887 the Baptists began placing material on the ground for the erection of their church, and did erect the foundation, but did not finish the building. In 1S90 or 1891 they procured other material, had to tear away a portion of the foundation, because it had given away, and did erect their building on this block, and have maintained their church organization, and have worshipped in its building, and in the building later constructed by them, during all the years since they first built thereon. They now hold some five or six services a week, and in 1912 erected a new church, using the old one as a part of the new, but moving same a little nearer the jail than the old church first erected by them, and used by them up to 1912. They also own another building on this block, which is used. as the pastor’s home and is known as the Baptist parsonage.
“A number of years ago, which I find to be about 20 years ago, a crazy negro was lodged in the jail, and was very boisterous at times, and the congregation in the Baptist Church was disturbed by him, and he was kept in there for some time, probably three or four years. Later a crazy negro woman was kept in jail who at times created a disturbance, and a white man by the name of Manus, who was also insane, was kept in there and created some disturbance, and a negro woman, Irene Cooper, who was crazy, was kept in jail and created some disturbance, and a- white woman named Newland was placed in jail some 2 years ago, and was boisterous in her language and lewd in the state of her person, and was kept in there overnight. She was placed in there on Sunday afternoon, and was observed by some people on their way to the Baptist Church. It appears from the testimony that she was intoxicated at the time.
“At times crowds would gather around thfe jail when persons were being placed therein by the oflieers, and would block the sidewalk and cause inconvenience to people who were on their way to Sunday school and also to church services at the Baptist Church, and on one occasion the testimony shows that old and filthy bedding was hanging out on the jail yard fence as they went to church and Sunday school.
“I find that the services of the Baptist Church have never been broken up by the disturbance at the jail, but the membership at the church and the people in attendance of its services have been disturbed and inconvenienced by reason thereof. The Christian Church was at one time located just across the street from the jail, and in about 60 feet of the jail. Their services were never broken up, but noises werS heard at times during their services coming from the jail.
“There is no testimony showing the size nor the construction of the proposed jail, other than it is to be a modern jail and is to have two stories. South and east of the block on which the Baptist Church and parsonage are situated is one of the most thickly settled residence portions of the town of Madisonville; but at the time the jail was originally located on the lot on which it has since stood there were no residences in this portion of the town.”

The law imposed upon Madison county the duty of providing a county jail for the safekeeping of malefactors; and in attempting to build a county jail the county judge and commissioners’ court were doing only that which the law enjoined upon them. It cannot be held, we think, that a county jail is a nuisance per se. A jail is not a structure which in itself is a nuisance, nor does it necessarily become such by using it for the purpose for which it is erected. It might become such in the manner of its use, and, if so, its maintenance in that manner could be and should be enjoined. Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665; Miller v. Burch, 32 Tex. 210, 5 Am. Rep. 242. The fact that inmates of the old jail on occasion deported themselves in such a manner as to cause annoyance to churchgoers and disturbed public worship is not evidence that such unseemly conduct will be permitted in the future, or that annoyance from that source will be suffered ; but if such conduct is permitted, and annoyance suffered, it will be then time enough to invoke the aid of the courts to remedy the wrong. We know of no law in this state that expressly authorizes the confinement of insane persons in county jails; but if the authorities of the county shall hereafter from necessity so confine them, it is incumbent upon them to see to it that such persons are so placed as to not disturb religious worship, and, failing in this, they may subject themselves to correction and restraint by the courts as for maintaining a nuisance. And so, too, if the jail is maintained in such a way as to produce noxious and disagreeable odors, or in any other manner so as to prevent or interfere with the comfort, use, and enjoyment of the church by its members and attendants. It is not enough that the proximity of the jail would produce a degree of mental annoyance, or would tend to lessen the value of the church property (Cardwell v. Austin, 168 S. W. 385), or render it less desirable for church purposes (League v. Journeay, 25 Tex. 172).

We find no error in the recordj and the judgment of the court below is affirmed.
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author: WILLSON, C. J.

text:
    BRADEN v. RHYNE et al.
    (No. 1490.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 20, 1915.)
    Appeal and Error <&wkey;80 — Judgments Ap-pealable — Finality oe Determination.
    Plaintiff filed a bill to require B. and R. to interplead as to the ownership of money in plaintiff’s possession. Each defendant alleged his claim to the money, and B. further alleged that his intestate and R. were partners in the cattle business immediately preceding his intestate’s death, and that during his intestate’s illness and after his death R. wrongfully converted cattle of the partnership to his own use. He prayed for an accounting and judgment against R. The court rendered judgment in favor of R. for the money in plaintiff’s possession, except a small amount awarded to a third party who intervened, but made no disposition of B.’s suit for an accounting and for the conversion. Held, that the judgment was not final and was not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494^509; Dec. Dig. &wkey;80.]
    Appeal from District Court, Marion County; H. F. O’Neal, Judge.
    Bill of interpleader by the Texas & Pacific Railway Company against L. G. Braden, administrator, and others. From a judgment against him, Braden appeals.
    Appeal dismissed.
    J. H. Benefield, of Jefferson, for appellant. T. D. Rowell and W. L. Grogan, both of Jefferson, for appellee.
   WILLSON, C. J.

Alleging that it had in its possession $857.60 which belonged either to appellant as administrator of the estate of Ed Jones, deceased, or to appellee Rhyne, the Texas & Pacific Railway Company by a bill of interpleader sought to have those parties interplead and litigate between themselves the question as to which one of them owned the money. Appellant and Rhyne interpleaded, each setting up the facts on which he relied to support his claim to same; and appellant, in addition, alleged that his intestate and said Rhyne during the two years immediately preceding his death were partners in the cattle business, that at the time of his intestate’s last illness and after his death said Rhyne wrongfully converted to his own use cattle belonging to himself and said intestate, to the damage of the latter’s estate in the sum of $10,000, for which, as well as for an accounting by said Rhyne, appellant as such administrator prayed judgment against said Rhyne. R. R. Taylor intervened in the suit, alleging that he owned $100 of the $857.60. The judgment appealed from was in favor of Rhyne for $757.60 of the sum and in favor of Taylor for $100 thereof. No disposition was made by the court, in the judgment rendered, of appellant’s suit, as administrator against Rhyne for an accounting and for damages for the conversion alleged.- Therefore the judgment is not a final one.

As this court, for that reason, has no jurisdiction of the appeal, it is dismissed. Linn v. Arambould, 55 Tex. 611; Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1061; Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 840.


author: HODGES, J.

text:
    WEATHERINGTON v. WELCH et al.
    (No. 1467.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 29, 1915.)
    Adverse Possession <&wkey;19 — In closure.
    Defendants, who claimed a strip of land not included in their deed by adverse possession by a lessee, are not entitled to verdict, where the strip was not included in the lessee’s inclosure.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99--105; Dec. Dig. &wkey;> 19.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by A. J. Weatherington against Amos Welch and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Robertson & Kemp, of Dallas, for appellant. Wendel Spence, of Dallas, for appel-lees.
   HODGES, J.

The appellant brought this suit in the form of an action of trespass to try title to recover 1 y2 acres of land described in his petition. The appellees disclaimed as to a part of the land sued for, and claimed the remainder by limitation. The original tract, of which the land in controversy is a part, consisted of 13 acres formerly owned by Margaret Miller, who was the agreed common source of title. One acre of this tract waá conveyed to A. F. Burton. An acre and a half adjoining the Burton acre on the southeast was conveyed to J. W. Galbraith. The Burton south line thus formed the Galbraith north line. This controversy involves -a strip of land 56 feet wide along south of that boundary line. The case was submitted to the jury on special issues, and from the answers returned judgment was entered in favor of the appellees, defendants below.

It is claimed that the finding of the jury that the appellees and those under whom they claim had held adverse possession of the lands in controversy for more than ten years was not supported by the evidence, and we think this contention should be sustained. The evidence shows conclusively that a strip of land 56.3 feet wide by 100 feet long claimed by the appellees was not included in the field notes of their deed. They undertook to establish a title to this by the adverse possession of the family of Mrs. M. E. Hicks. The great weight of the testimony shows that only a portion of that strip of land was included in an inclosure placed upon it by Mrs. Hicks. The appellees have filed no brief, and we therefore accept as correct those extracts from the record embraced in the brief of the appellant. The testimony quoted shows that between what was formerly known as the Hicks fence and Juliette street there was a space of about 25 or 30 feet which had not been inclosed a sufficient length of time to give title by adverse possession. It is unnecessary to discuss the facts in detail.

We think the court erred in failing to set aside the verdict and grant a new trial. The judgment of the district court is therefore reversed, and the cause remanded.
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text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SCALES.
    (No. 1496.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 10, 1915.)
    Railroads <&wkey;424 — Injuries to Stock on Tracks — Liability.
    Plaintiff’s cow was killed while running at large in a town, an ordinance of which prohibited stock from running at large. The train which struck and killed the animal passed through the town running at a high rate of speed. The railroad company had allowed Johnson grass and cotton seed to accumulate on its tracks near -the point where the cow was killed. Held that, in the absence of a showing that the cow would not have been struck had the train been running at a moderate rate of speed, the railroad company cannot be held liable without proof of other negligence than the speed" and the accumulation of feed.
    [Ed. Note. — For other cases, see • Railroads, •Cent. Dig. §§ 1521-1526; Dec. Dig. &wkey;424.]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by T. C. Scales, Jr., against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Chas. C. Huff, of Dallas, and Evans & Evans, of Bonham, for appellant. S. M. Ross, of Leonard, and E. L. Agnew, of Bon-ham, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee against the appellant for the sum of $200 as damages for negligently killing a cow. The ground relied on for a reversal is the insufficiency of the evidence to show negligence justifying judgment for any amount against the appellant.

The facts show that the cow was killed on the night of October 1, 1914, while running .at large near the depot in the town of Trenton. It is admitted that she was struck by what is referred to in the evidence as the “Limited,” a fast train, which passed through Trenton during the night without stopping at that station. The negligence charged is in running the train at a high rate of speed and in permitting the accumulation of Johnson grass and cotton seed near the track of the railroad, calculated to tempt cattle to go there for the purpose of feeding. There was testimony tending to show that the train passed through Trenton at the usual rate of speed, which was about 30 or 35 miles per hour. Just how the cow came to be struck, or whether she was seen or could have been seen by the employés in charge of the train in time to have prevented a collision, does not appear from the testimony. It is admitted that the town of Trenton is incorporated and has an ordinance which prohibits stock from running at large. The appellee testified that, on the night of the killing, his cow by some means got out of the lot where she had been confined, and wandered to the railroad track. She was discovered feeding near the railroad, in the vicinity of the place where she was killed, some hours previous to the accident, by the station agent, and driven away. It appears that she returned, probably tempted to do so by the cotton seed and Johnson grass on the track.

It may be conceded that the testimony was such that the court was justified in finding that the employés in charge of the Limited were guilty of negligence in running at a high rate of speed through the town of Trenton, but there is no evidence that this negligence was the proximate cause of the collision with the cow. The accident might have occurred had the train been going at a more moderate rate. There is no evidence tending to show that those employed knew that the cow was at large or was near the track and in a place of danger. The facts are very similar to those in Railway Co. v. Matthews, 158 S. W. 1048, and we think the rule there announced should be applied here. It would be going a long way to convict a railroad company of negligence with reference to the operation of its trains upon proof that it had permitted grass to grow upon its right of way or had dropped cotton seed near the track in a district where stock were forbidden by law to run at large.

The judgment of the county court is reversed, and judgment will be here rendered for the appellant.


text:
    BEARDSLEY v. SMITH.
    (No. 1470.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 6, 1915.)
    Appeal and Error <&wkey;>597 — Transcript—Detect — Jurisdiction.
    Ini an action by plaintiff, as trustee and individually, for an accounting against numerous defendants, arising out of Sis appointment as trustee to sell properties belonging to defendant’s father, including bonds, and to secure the payment of claims of his creditors, making defendant a party on the ground of his ownership of a number of the bonds, a plea in reconvention seeking a personal judgment against plaintiff for damages for an alleged balance due from the sale of such bonds was germane to the suit, and the order striking it out was interlocutory only; so that, where the transcript did not contain a copy of the final judgment, the appeal from the order would be dismissed for want of jurisdiction.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 2627-2688; Dee. Dig. <&wkey;> 597.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by W. B. Smith against Charles H. Beardsley and others, in which defendant Beardsley filed a plea in reconvention. Plea stricken or dismissed, and defendant Beardsley appeals.
    Dismissed.
    Win. H. Clark, of Dallas, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellee.
   HODGES, J.

This suit was instituted in December, 1910, by AY. B. Smith, the defendant in error, as trustee and individually, joined by his law partners, John E. Moore and J. Merrett Moore, for an accounting and other relief not necessary to mention. A large number of parties were named as defendants, among whom were D. T. Bomar and his associates, the Fidelity Trust Company of Ft. Worth, the Continental Bank & Trust Company, J. D. Beardbley, C. H. Beardsley, and others. It appears from the original petition that in 1908 W. B. Smith was by agreement of the intei-ested parties appointed a trustee to take charge of, manage, and sell certain properties belonging to J. D. Beardsley, one of the defendants below. This property consisted of a street railway and electric light plant situated in the city of lit. Worth, considerable real estate in that city, and 505 bonds of the Louisiana & Northwestern Railroad Company of the par value of $1,000 each, all of which was incumbered by liens. Under the terms of this agreement, Smith was empowered to sell and convey the property and to negotiate for extension of indebtedness and liquidation of ciaims upon certain conditions. The trust was also created for the purpose of securing the payment of a large number of claims held by different creditors, and also some due to Smith .and his law firm for services which they had rendered to J. D. Beardsley in the course of litigation in which he was involved. The plaintiff in error, C. H. Beardsley, was made a party defendant apparently upon the ground that he owned 35 bonds of the Louisiana & Northwestern Railroad Company of the par value of $1,000 each and which were disposed of by Smith in the negotiations for a settlement of the business affairs of J. D. Beardsley, the father of C. H. Beardsley. The plaintiffs in this suit, in addition to an accounting with the various creditors and ■claimants against the trust property, also sought a personal judgment against J. D. Beardsley for the debts due them. Some of the defendants below answered, while others disclaimed. The plaintiff in. error, C. H. Beardsley, answered by general and special exceptions and a general denial. In addition to these he filed a plea in reconvention, in which he sought a personal judgment against Smith alone for damages in the sum of $12,000 for the alleged balance due on the sale of the 35 bonds above referred to. Exceptions were interposed and sustained to this portion of the plaintiff in error’s answer, and it was stricken out, or dismissed. This appeal is from that order, which is the only judgment to be found in the record. AYe are not advised as to what disposition was made of the case upon its merits, or whether it was ever disposed of or not.

The first question is: Does the record present a case of which this court can take jurisdiction? The plea in reconvention, while an independent action, became nevertheless a part of the original suit. Any ruling made by the court in advance of a final determination of the cause as to the sufficiency of that plea, while a finality as to that particular issue, was merely interlocutory as to the main suit. Let us suppose that the defendant in error and the plaintiff in error were the only parties to a suit in which the former sought the same character of relief as that prayed for in this suit, and that plaintiff in error as defendant had interposed, as he has here, exceptions and denials to the petition, and had also alleged facts which if true would entitle him to affirmative relief on a counterclaim. Let us assume further that the court erroneously sustained an exception to the plea in reconvention and struck it out. It certainly could not be contended that an appeal would lie from that order before a final judgment had been rendered on the merits of the case. The principle which should govern in the supposed ease is the same which must be applied here. Article 2113 of the statute requires that the transcript shall in all cases contain a copy of the final judgment. That is necessary in order that the record may affirmatively show that a judgment from which an appeal will lie has been rendered. Our conclusion is that, if the facts relied on as the basis of the plea in reconvention were such as might have .been pleaded in that form in this suit, we cannot review the ruling of the court in striking it out upon a record which does not show that a final judgment had been rendered. On the other hand, if the facts set up in the plea in reconvention constituted an independent suit wholly disconnected with the facts alleged in the original petition, the court correctly sustained the exception. AYe base our disposition of the case, however, upon the ground that the facts set up in the plea in reconvention were germane, and the order striking them out was interlocutory only, and that we are therefore without jurisdiction to review that order in the present state of the record. The appeal is therefore dismissed. Houston & Texas Central R. R. Co. v. Parker, 126 S. W. 942; Id., 104 Tex. 162, 135 S. W. 369.
      <S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


text:
    TITLE GUARANTY & SURETY CO. v. BARNWELL et al.

    (No. 1489.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 8, 1915.
    Rehearing Denied June 17, 1915.)
    1. Appeal and Ebbor &wkey;>219 — Review—Objection Not Made Below — Findings and Conclusions.
    In an action against a contractor and his surety for damages for breach of a building contract, the court’s finding that no substantial change was made from the plans and speeifica-tionss and that the slight change made in the building material was authorized by the contract, to which no objection was made, must be taken as true, as against a contention on appeal that the owner and contractor without knowledge of the surety made a substantial change in the original contract.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317-1320, 1322, 1323; Dec. Dig. &wkey;219.]
    2. Contracts &wkey;j354 — Action for Breach— Judgment — Support in Findings.
    In an action against a contractor and his surety for damages for breach of building work, the specifications of which provided that payments would be made weekly in the proportion of work to total labor and materials furnished and worked into buildings, less 25 per cent, of estimates, at option of owner, and that the architect should estimate the work done and material furnished and issue his certificate for 75 per cent, of the cost, where defendants claimed a substantial change in the building and a payment to the contractor in violation of the terms of the contract, a finding that there were no substantial changes in the building, 'and that the provision as to payment meant that estimates should be made of all work done in the building and material furnished by the contractor on the premises, and that the provision in the specifications as to payment constituted no part of the specifications as to the building, but had been put in merely for the information of bidders, supported a judgment for the plaintiff.
    [Ed. Note. — Eor other cases, see Contracts, Dec. Dig. <&wkey;>354; Trial, Cent. Dig. § 859.]
    Error from District Court, Upshur County; R. W. Simpson, Judge.
    Action by W. C. Barnwell against the Title Guaranty & Surety Company and another. Judgment for plaintiff, and the surety company brings error.
    Affirmed.
    Dabney & Townsend, of Dallas, for plaintiff in error. Warren & Briggs, of Gilmer, and Ross & Zuinwalt, of Dallas, for defendant in error.

       writ of error pending in Supreme Court.

   HODGES, J.

This is a suit against the contractor and the surety on his bond to recover damages for the breach of a building contract. The case was tried before the court without a jury, and a judgment rendered'in favor of W. C. Barnwell, defendant in error, plaintiff below. The surety alone appeals.

The court filed findings of fact and conclusions of law, which are not here objected to. It is insisted that the judgment rendered against the surety is erroneous for two reasons: First, because the testimony showed that the owner and contractor, without the ■knowledge of the surety, made a material and substantial change in the original contract, consisting of the substitution of tile for brick in the construction of the walls of the building. Second, because the owner made a payment of $1,405 to the contractor, in violation of the terms of the original contract as to the conditions under which such payment should be made.

As to the first proposition, the court made the following findings of fact:

“I find that the plans and specifications contemplated a building whose outer walls were to be of solid brick, the outside to be of faced brick, and the inside or backing to be of common brick; that in the building as constructed the outer walls are constructed, the outside of faced brick, the inside or backing of tile: that the tile used is made of the same material and in the same way as common brick, and in fact is brick, only larger than common brick, and has a hollow in it, whereas common brick are solid; that the tile is just as good and serves the same purpose in building of this kind as common brick. The tile is laid in the same mortar and by the same bricklayers as common brick, and by using the tile instead of common brick the building costs a little less. The walls are of same thickness and dimensions as specified in the plans and specifications, and no additional work was required. I find that in the construction of the building no substantial or material changes were made from the plans and specifications.”

Upon those facts the court concluded:

“That no material or substantial changes in the building were made, and the slight change made in the material mentioned was authorized by the contract.”

These findings and conclusions, being un-objected to, must be accepted as true in the determination of this question, and the assignment is accordingly overruled.

The specifications contained the following provision:

“Payments on account of work executed will be made each week in direct proportion of the work to total labor and materials furnished and worked into building. Such payments, however, may be less 25 per cent, of such estimates at option of owner,” etc.

The testimony showed that the contractor had assembled upon the premises about $1,-900 worth of material and demanded of the supervising architect an estimate in order that he might draw 75 per cent, in payment as provided for in the contract. The plaintiff in error relies upon the quotation above made as the stipulation which prohibited payments being made for material until it had been worked into the building. The architect testified as follows:

“There is usually reference made in the specifications as to how payments will be made, how often estimates will be made, for the guidance of people bidding, on. the job, so they will know whether they are going to got their money weekly, semimonthly, monthly, or at the completion of the work. That is the purpose for which that paragraph is put in the specifications.”

It appears that the contract, as construed by the supervising architect, authorized this character of payment. The contract contains this provision:

“Bach two weeks during the life of this contract and progress of work the architect shall make estimates of actual work done and material furnished, * * * and issue his certificate for 75 per cent, of the actual cost of the labor and material done and furnished, and owner shall pay same upon said estimates in lawful money of the United States.”

The court in his findings says:

“That the amount paid to the corporation (meaning the contractor) was upon due and proper estimate made by the architect as provided for in the contract and the amounts paid out by Barnwell for labor and material after he took -charge and to the amount paid under the contract for special work were all necessary to the completion of the building. * * * With reference to payments on estimates, I find there is no conflict between the clause in the contract and the clause in the specifications; that the architect, J. Dawson Matthews, construed the clause in the specifications to mean that estimates should be made of all work done in the building, and material furnished by the contractor on the premises, and it was so intended by the parties. I further find that the clause as to payment in the specifications constituted no part of the plans or specifications of the building, and was only put in the specifications for information to those submitting bids for construction of the building.”

Those findings, we think, sufficiently support the judgment rendered, and it is, accordingly, affirmed.
      <Ssx>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DIXON et ux. v. COOPER et al.
    (No. 1475.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 27, 1915.
    Rehearing Denied June 3, 1915.)
    1. Appeal and Error <&wkey;54ih-BiLL op Exceptions — Motion to Quash — Rules.
    Under rules 53, 55 for district and county courts (142 S. W. xxi), providing that there shall be no bill of exception to the judgments rendered on the record proper, such as the citation, petition, answer, etc., a motion for new trial or in arrest of judgment and final judgment, and providing that the court’s rulings upon applications for continuance, change of venue, and other incidental motions sought to be complained of as erroneous must be presented in a bill of exceptions signed by the judge and filed and made a part of the record, an order overruling a motion to quash an affidavit in garnishment proceedings could not be considered on appeal without a bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dee. Dig. &wkey; 644.]
    2. Appeal and Error &wkey;>759 — Assignments op Erkoe — Consideration.
    An assignment of error in a brief, which is not a copy of any appearing in the transcript, will not be considered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <&wkey;759J
    3. Appeal and Error &wkey;>548 — Assignments op Error — Statement op Facts.
    An assignment of error, in that the evidence was insufficient to support the judgment rendered, cannot be considered where there is no statement of facts in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <&wkey;
    Appeal from Hunt County Court; Geo. B. Hall, Judge.
    Action by G. F. Cooper and another against G. W. Dixon and wife and the Guaranty State Bank of Lone Oak, Tex., as garnishee. Judgment against Dixon and the garnishee, and Dixon and wife appeal.
    Affirmed.
    J. G. Matthews, of Greenville, for appellants. 'Dinsmore, McMahan & Dinsmore and H. L. Carpenter, all of Greenville, for appel-lees.
   HODGES, J.

This suit originated in the justice court in an action wherein G. F. Cooper recovered a judgment against G. W. Dixon for the sum of $108.22 and also a judgment against the Guaranty State Bank of Lone Oak, Tex., as garnishee. An appeal was prosecuted to the county court, where a similar judgment was rendered, from which this appeal is prosecuted by Dixon and his wife.

In both the justice and the county courts a motion was made to quash the affidavit in the garnishment proceedings. The overruling of that motion is the basis of the first assignment of error. The record contains no bill of exceptions as required by the rules, and for that reason the objection will not be considered. Rule 53 (142 S. W. xxi), prescribed by the Supreme Court for district and county courts, is as follows:

“There shall be no bill of exception taken to the judgments of the court rendered upon those matters which at common law constitute the record proper in the case, as the citation, petition, answer, and their supplements and amendments, and motion for new trial or in arrest of judgment and final judgment.”

Rule 54 (142 S. W. xxi) refers to the charges of the court. Rule 55 (142 S. W. xxi) is as follows:

“The ruling of the court upon applications for continuance and for change of venue and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exceptions signed by the judge and filed by the clerk, or otherwise made according to the statute and they will thereby become a part of the record of the cause, and not otherwise.”

It has been uniformly held that orders overruling motions for continuance will not be considered on appeal in the absence of bills of exception, in accordance with the above-mentioned rule.

The second assignment of error appearing in the brief of the appellant is not a copy of any which appears in the transcript, and for that reason will not be considered.

But even if it were otherwise, it, being based upon a complaint that the evidence was insufficient to support the judgment rendered, cannot be considered, because there is no statement of facts in the record.

The judgment of the county court is therefore affirmed.
      .Pnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WEBB v. WESSELL et al.
    (No. 1493.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 23, 1915.
    Rehearing Denied July 3, 1915.)
    1. Appeal and Error <&wkey;1008 — Trial to Courtv-Weight of Evidence.
    In an action tried by the court, he is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. &wkey;>1008.]
    2. Animals <&wkey;44 — Action for Killing Dog —Evidence.
    In an action for damages for killing a dog alleged to have attacked defendant’s goats, evidence held to justify a judgment for plaintiff.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. &wkey;44.]
    3. Master and Servant &wkey;>302-;-MASTER’s Liability for Act of Servant.
    In an action for damages for killing plaintiff’s dog, defendant was liable, although the killing was done by his servant in the course of defendant’s employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <&wkey;>3'02.]
    4. Appeal and Error <&wkey;837 — Review—Sufficiency of Pleadings.
    On appeal, the pleadings of both parties may be considered in determining their sufficiency to support the judgment rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 327it-3277, 3289; Dec. Dig. &wkey;837.]
    Appeal from District Court, Marion County ; H. F. O’Neal, Judge.
    Action by A. J. Wessell against N. B. Webb and another. From a judgment for plaintiff, defendant Webb appeals.
    Affirmed.
    J. H. Benefield, of Jefferson, for appellant. Schluter & Singleton, of Jefferson, for appellee.
   HODGES, J.

The appellee sued the appellant, N. B. Webb, and W. F. Palmex-, in the justice court, for damages for killing his dog. He recovered a judgment for $90. An appeal was prosecuted by Webb and Palmer to the district court, where a judgment was rendered against them in favor of the appel-lee for $100. The case was tried before the court without a jury.

The evidence shows that the dog for which the recovery was sought was a valuable, well-trained pointer dog, and was killed under the following circumstances: Webb was the owner or manager of a farm situated near the city of Jefferson, on which he kept a herd of goats. He had employed Palmer to work upon the farm and to watch over the goats and see that they were not molested by dogs. On Sunday, May 17, 1914, Palmer shot and killed the appellee’s dog while it was inside the inclosure containing the goats. There was testimony tending to show that, at the time the shooting occurred, the dog was not molesting or attempting to molest the goats. Palmer admitted the killing, but sought to justify it upon the ground that the dog was killed in defense of the goats. He testified, in substance, that prior to the day the dog was killed three of the goats had been missed, and he suspected that they had been killed by dogs, but did not know. On the afternoon of the day of the killing the dog in controversy, in company with another dog, had attacked one of the goats, and they were discovered in the act of devouring it. Palmer drove them off. He then went to Webb’s barn and procured a gun, and on his return, finding this dog still in the inclosure not a great way from the herd of goats, shot and killed him. While gone to the barn after the gun, Palmer left his wife to stand guard over the goats and prevent further depredations by the dogs. He insists that he did the killing purely in defense of the flock of goats, and that this was necessary. According to Palmer’s testimony, when he went after the gun he reported the situation to Webb and was instructed by the latter, if the dogs were found on the goats, to kill them. Palmer further testified that he tried to drive the dogs from the pasture; that they refused to leave the premises, and ran off down in the field. According to the evidence, the dog had a money value equal to the amount of the recovery. No question is made in this appeal as to the judgment being excessive.

Webb alone has prosecuted an appeal. He urges two grounds for reversing the judgment: (1) That, under the facts, Palmer had a legal right to kill the dog; and (2) that the act of Palmer in killing the dog, if unlawful, was one for which Palmer alone was responsible.

The evidence relied on by the appellee tended to show a wanton and unjustifiable killing of the dog. That relied on for justification was furnished by the testimony of Palmer and his wife and the appellant Webb. All of these witnesses were deeply interested in the result of the suit; two of them were parties defendant; and the court had a right, if he felt justified in so doing, to reject their testimony as untrue. In trials of this character, where the court has to judge of the facts as well as the law, he occupies the status of a jury and is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. There are no findings of fact in the record, and the judgment is a general one. We are not, therefore, advised as to the particular grounds upon which the court based his conclusions. We must indulge every presumption inferable from the record in favor of the correctness of bis judgment. We cannot say, as a matter of law, that be did not refuse to credit tbe testimony concerning tbe defense presented. But, even bad be accepted tbis testimony as true, we are not disposed to bold that be committed an error for which bis judgment should be reversed. Tbe evidence indicated that the dog was a valuable animal; that it had been rendered for taxation as property. There was no evidence that it was vicious or addicted to predatory habits. A dog of tbis character may be treated as property owned and held upon tbe same plane of legal protection as other domestic animals which are classed as property. Tbe right of a party to kill a dog of tbis character is governed by tbe same rules which justify the killing of other domestic animals. It may be conceded that Palmer had the legal right to kill this particular dog if the killing reasonably appeared to be necessary to the protection of the herd of goats committed to his care. But the court might have concluded from Palmer’s own statements that the killing of the dog was not necessary to that end; that ordinary prudence for the protection of the goats, and a proper regard for the rights of the owner of the dog, as well as humanitarian impulses, demanded a different course of procedure. State v. Smith, 156 N. C. 628, 72 S. E. 321, 36 L. R. A. (N. S.) 910; 2 Cyc. 416.

The second ground is no less untenable than the first. Webb had employed Palmer to protect his goats. That was a part of the duty which Palmer had undertaken to perform. It is therefore immaterial whether Palmer obeyed or disobeyed Webb’s instructions as to the details of his method of performing that duty. It is sufficient, if it be shown, that the act of Palmer in killing the dog was done in furtherance of the employer’s service. T. & N. O. Ry. Co. v. Parsons, 109 S. W. 240; Id., 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857. It is true that, under the pleadings of the plaintiff alone, the allegations are hardly sufficiently broad to invoke the doctrine of respondeat superior; but those pleadings, taken together with the facts set up in the answer, contained all of the averments necessary.

The pleadings of both parties may be considered in determining their sufficiency to support the judgment rendered.

The judgment of the district court is affirmed.
      (g^Por other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. v. WINN BROS.
    (No. 1486.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 1, 1915.
    On Motion for Rehearing, June 10, 1915.)
    1.Carriers <&wkey;211 — Live Stock Shipment-Contract xor Watering.
    Bev. St.-1911, art. 714, requiring the carrier to feed and water a live stock shipment, unless otherwise provided by contract, authorizes a contract shifting the duty to the shipper’s representative accompanying the shipment.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 926-928; Dec. Dig. &wkey;211.]
    On Motion for Behearing.
    2. Carriers &wkey;208 — Live Stock Shipment-Caretakers — Passes.
    Pen. Code 1911, art. 1533, exempting from the provisions of the anti-pass law (Acts 30th Leg. c. 42), in case of a live stock shipment, the necessary caretakers while en route and return, contemplates that they accompany the shipment, and not go on another train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 92L-928; Dec. Dig. <5&wkey;20-8J
    3. Carriers <&wkey;218 — Contract ox Carriage —Exemption from Liability.
    Provision of a contract for live stock shipment, to be accompanied by the shipper’s representative, relieving the carrier from all liability for injury, is invalid as relieving it from the consequences of its own negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <®=>218.]
    4. Trial <&wkey;85 — Evidence Admissible in Part — Bejection.
    Where part of the contract of carriage is invalid as against public policy, and tends to prove a pleaded defense, though another part is valid and tends to prove another defense, the court is justified in rejecting it offered as a whole. The unobjectionable part should be offered separately.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by Winn Bros, against the Gulf, Colorado & Santa Fé Bailway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Terry, Covin & Mills, of Galveston, D. C. Clifton, of McKinney, and John G. Gregg, of Galveston, for appellant. John Doyle, of McKinney, for appellees.
   HODGES, J.

This appeal is from a judgment for the sum of $325 in favor’of the appellees against the appellant as damages for injuries to a shipment of live stock consisting of a car load of mules. The negligence alleged was delay, rough handling, and the failure to feed and water while in transit. The evidence offered by tbe appellees showed that the car left Wiley, Tex., at about 12 o’clock on the night of February 7, 1914, and arrived at Houston, Tex., its destination, in the afternoon of the 11th of February following; that the animals were in such bad condition that they were not marketable; and that, as a result, nearly all of them were shipped back to Wiley. Proof was offered tending to show that the animals were damaged to the extent of $25 per head.

The first assigned error is the refusal of the court to permit the appellant to introduce in the evidence provisions of the bill of lad ing stipulating that the shipper would accompany the car and feed and water the stock and release the carrier from that duty. The second assignment complains of the refusal to permit the introduction of the entire hill of lading. This proffered testimony was objected to upon the ground that it was immaterial, irrelevant, and tended to limit the liability of the railway company for its negligence. The testimony offered by the appellant showed that the stock were watered and fed twice after leaving Wiley and before reaching Houston. One of the witnesses for the appellees testified that stock kept on cars 96 hours without being watered and fed more than twice during that time would be 'injured to the extent of $25 per head. The court submitted the failure to water and feed as one of the grounds of recovery.

In this state of the record it cannot be said, as a matter of law, that a stipulation whereby the shipper binds himself to accompany the stock and to water and feed them on route was unimportant and immaterial. In this instance the shippers were furnished with free transportation, presumably for the purpose of giving them an opportunity to have some one accompany the shipment and comply with the stipulations embraced in the contract. Article 714 of the Revised Statutes provides that common carriers shall feed and water live stock conveyed by them, unless otherwise provided by special contract. This seems to contemplate that contracts may be made whereby the carrier is relieved of that duty and responsibility. Contracts of this character have been upheld in this state as valid and binding obligations. Dickerson et al. v. S. U. & G. Ry. Co., 170 S. W. 1045; Ft. W. & D. C. R. R. Co. v. Daggett, 87 Tex. 322, 28 S. W. 525; T. & P. R. R. Co. v. Arnold, 16 Tex. Civ. App. 74, 40 S. W. 829; T. & P. R. R. Co. v. Peters, 31 Tex. Civ. App. 6, 71 S. W. 71. Article 1533 of the Penal Code exempts from the provisions of the anti-pass law the necessary caretakers to accompany shipments of live stock. Evidently this provision is based upon the assumption that the person to whom the transportation is given will accompany the shipment and perform the duties usually expected of a caretaker in looking after the welfare of the stock while en route. In this case the evidence shows that one of the appellees to whom the transportation was delivered, instead of accompanying the shipment, waited until the next day and went through to Houston on a passenger train. I-Ie did not see the stock from the time they left Wiley until their arrival at their destination. Clearly the law did not contemplate that railway companies should give transportation to b.e used in that way. We think the court erred in refusing to admit the proffered testimony as against the objections urged. It may be that portions of the bill of lading, or even portions of that part which was first offered, were inadmissible. But the objection urged and sustained was as to the whole. The rule is that when testimony is offered, a part of which is admissible and a part is not, a general objection to all will not be sustained. It is the duty of the objector in such instance to confirm his objection to those portions of the testimony which are inadmissible. This proposition is too well settled to call for a reference to authority.

The remaining assignment of error is without-merit; but, for the errors discussed, the judgment will be reversed, and the cause remanded for a new trial.

On Motion for Rehearing.

In disposing of this ease originally, we were of the opinion that the only material facts put in issue by the pleadings, which the bill of lading would tend to establish, was the agreement of the shippers to accompany the stock and to feed and water. A further examination of appellant’s answer discloses that, in addition to this defense, it also pleaded other stipulations In the bill of lading. For instance, it pleaded a provision which released it from any and all damages that resulted to the stock during that shipment. It was alleged that the stock were shipped at the shippers’ risk in consideration of a low freight rate; that they were not to be delivered at any specified time or any particular hour nor at any season for any particular market; that, by reason of the stipulations contained in the bill of lading, the defendant was released from all damages on account of the shipment. The effect of these stipulations in the bill of lading, if received in evidence, would be to establish defenses exempting the carrier from the consequences of its own negligence.

Our attention has been called to the case, of Pecos & N. T. Ry. Co. v. Brooks, 145 S. W. 649. This is a decision rendered by the Amarillo court, holding provisions of a contract identical with those here offered in evidence inadmissible because illegal. That case had been previously considered by us, and we were fully in accord with the conclusions there announced; but our ruling was based upon the assumption that the only legal effect of tire bill of lading, if received in evidence, would be to establish the defense that the shippers had agreed to accompany and to feed and water the stock, and that the mere fact that the bill of lading contained some other and irrelevant provisions, which could not operate injuriously to the plaintiff in the suit, did not justify its exclusion. However, we are now of the opinion that that assumption was not justified, and that the purposes for which the proffered testimony was tendered, and the effect its introduction would have had, justified the court in refusing to admit it. If the appellant desired to avail itself of those stipulations, which the carrier had eC right to make, concerning the loading and unloading and the feeding and watering of the stock, they should have been offered unincumbered by those which were illegal.

The motion for rehearing is granted. The judgment heretofore rendered reversing and remanding the cause will be set aside, and the judgment of the county court affirmed.
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author: LEVY, J.

text:
    CRAVER et al. v. GREER et al.
    (No. 1434.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 1, 1915.
    Certified to Supreme Court May 19, 1915.)
    Appeal and Error <&wkey;281 — Review—Motion por New Trial — Statutes — Rules op Court.
    Rev. St. 1911, art. 1612, provides that the appellant shall file with the clerk of the court below all assignments of error, and that all errors not so specified are waived, and articles 1989-1991, provide that where conclusions of fact are separately stated it shall be sufficient if a party excepting- to the conclusions of law or the judgment, note his exceptions on the record in the judgment entry, whereupon he may appeal without further exceptions. Rule 24 for Courts of Civil Appeals (142 S. W. xii) provides that the assignments of error shall specify the ground of error relied on in the motion for a new trial, and that a ground of error not so set forth in the motion and not distinctly specified shall be waived unless fundamental; rule 69 (142 S. W. xxii) provides that when a case is tried by the court the motion for new trial shall specify the supposed errors of law or fact, and rule 71a (145 S. W. vii) provides that a motion for new trial shall be filed on appeal from a judgment of the trial court unless the error complained of is fundamental, and where the statute does not require such motion. In a receivership proceeding the court, on application of lien creditors for a sale of property, heard evidence on the merits, and directed a final decree, there being no requests for findings of facts and conclusions of law. Held,, that a motion for a new trial was a prerequisite for the consideration of assignments of other than fundamental errors.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. 281.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by D. C. Craver against T. A. Greer and assignee, in which the Jefferson Wholesale Grocery Company and others intervened and a receiver was appointed. From the terms of a decree of sale made on their application, Craver and others appeal.
    Affirmed.
    Lacy & Bramlette, of Longview, Henderson & Bolin, of Daingerfield, and Beard & Davidson and Carter & Strength, all of Marshall, for appellants. F. H. Prendergast and A. G. Carter, both of Marshall, for appellees.
   LEVY, J.

T. A. Greer, a lumber manufacturer, had a sawmill in Marion county, a sawmill in Harrison county, and lumber yard in the city of Marshall. In October, 1913, he was largely indebted and unable to pay his creditors, and made a general assignment to M. M. Barnes as assignee for the benefit of his creditors. D. C. Craver filed suit against T. A. Greer and the assignee, seeking judgment for debt and foreclosure of mortgage lien on certain sawmill property and timber and other specific property. Thereafter the Jefferson Wholesale Grocery Company and others, holding unsecured claims against Greer amounting to several thousand dollars, intervened in the suit of D. C. Craver, set forth that T. A. Greer was insolvent, and asked for the appointment of a receiver, and upon this application the court appointed a receiver, who qualified and acted. T. A. Greer waived citation and agreed that the court appoint a receiver. Numerous interventions on the part of creditors for judgment on their claims were filed in the action. Each of the four present appellants is a creditor with a mortgage lien on specific property, and his judgment in the receivership proceedings established the debt and lien and foreclosure and as well classification of such claims. Thereafter each of the four appellants at the November term, 1914, filed application in the receivership proceedings to have the property on which he had a lien sold and to be allowed to bid his debt on same, setting forth that the assets of the receivership and its earnings were not sufficient to pay off the debt. Ailer hearing proof, and on November 6,1914, in term time, the court entered the following decree:

“On this, the 6th day of November, 1914, came on to be heard the above cause for final judgment and decree, and the plaintiff D. O. Craver appearing by his attorney, and inter-vener the National Bank of Daingerfield, Tex., appearing by its attorney, and the interveners Galt & Galt appearing by their attorney, and the interveners Castleberry-Lawrence & Rodden appearing by their attorney, and the receiver O. W. Wheeler appearing by attorney, and all parties announced ready for trial. Thereupon the court proceeded to hear the evidence on all of the matters involved in the litigation.
“The court here now orders that all of the property in the receiver’s hand of every kind be sold to the highest bidder for cash on the 24th day of November, 1914; that the receiver give the notice of said sale required by law for sale of personal property, and that he advertise said sale by short notice thereof in the Dallas Morning News and in the Shreveport Times for one week in each of those papers, and that he advertise said sale for two weeks in the Marshall Messenger of Marshall, Tex., and in the Noonday Sentinel of Marshall, Tex., for two weeks; that any person bidding at said sale shall deposit 10 per cent, of his bid as an evidence of good faith, to be forfeited in case he should not carry out his bid, the balance of said bid to be paid into court when the sale is approved. In making said sale he shall first offer it in lots or parcels, as hereinafter directed, then he shall offer the whole of the property in lump sale, and he shall knock the sale off to the sale in lots if that should be.the greater, but if the sale in a lump sum should be the greater, he shall knock the sale off to the purchaser at that sale.
“The proceeds of said sale are to be paid out under the order of the court as follows: First. The court’s costs, which shall include compensation to the receiver and his attorneys. Second. He shall pay all indebtedness of every character contracted by the receiver during his receivership. Third. He shall pay the debts due by T. A. Greer which were secured by a lien on any of the property which was taken and appropriated by the receiver. In paying those amounts each creditor holding a lien on the property shall have a preference claim on the money obtained by the sale of the property upon which he had a lien, said preference to be superior to the other lienors, but to be inferior to the court costs and expenses of receivership as named above. Fourth. If any amount remains in his hands after paying the above, it shall be paid to the unpaid portion of tne debt which is secured by a lien as above specified. Fifth. To pay any remaining amount on the unsecured debts due by T. A. Greer.
‘•[Then follows description of property.]
“The receiver, in crying off the separate items, will require the person bidding the highest bid for each item to deposit with the receiver a statement in writing signed by him, showing the amount of his bid and the property for which he was bidding, and the receiver will continue the sale until the same is completed, and within two days after the sale he shall make his report of the same to the court under oath, stating the highest bid for each item of property exposed for sale by him, and stating also the highest bid for the whole amount. And thereupon the court, as soon as the same can be heard, will hear a motion to confirm or reject the sale, and distribute the proceeds as above specified. The court reserves to itself the right to hereafter determine the amount of the receiver’s debts and expenses, and to whom the same is due, but when determined shall take rank and priority as specified in this decree.
“The National Bank of Daingerfield, Castle-berry Lawrence & Rodden, D. C. Graver, and William Thomas, each excepted to the ruling of the court, first, in not allowing each of them to bid on the property on which they have a lien and use their debt to be credited on the bid. And each of said parties, and Galt & Galt and the National Bank of Daingerfield, excepted to the ruling of the court in placing the receiver’s debts ahead of their mortgage debt and giving the same priority over their claim, so far as the same could be paid out of the money on which they have a lien, and each of the above parties give notice of appeal to the Court of Civil Appeals.”

The force and effect of the appellants’ exception as embodied in the decree is to except to the decree as entered for the reasons therein stated, and to give formal notice of appeal directly therefrom. And as appellants did not file a motion for new trial in the trial court, so far as the record discloses, it becomes a preliminary question, as necessary for this court to act upon (rule 24 [142 S. W. xii]; article 1612, R. S.), as to whether a motion for new trial was a prerequisite under rules GO (142 S. W. xxii) and 71a (145 S. W. vii) for the trial courts in order to have assignments considered that are not of the character of fundamental error. This is not an “agreed case” as provided by article 1019, R. S., and is not a temporary injunction as provided by article 4644, R. S. (Ft. Worth Imp. Dist. No. 1 v. Ft. Worth [Sup.] 158 S. W. 164, 48 L. R. A. [N. S.] 994) ; and the judge was not, as disclosed by the record, requested to, and did not, file conclusions of fact and law so as to bring it within the terms of articles 1989-1891, R. S. As shown by the statement of facts in the record and by recital in the decree, the court heard evidence ar-.d determined the merits of the several applications, and accordingly directed a final decree. Rule 69 for trial courts provides :

“When the case is determined by the court without a jury counsel in making a motion for new trial shall specify distinctly the supposed errors of law or fact, or both, into which the judge has fallen, as far as may be practicable to do so.”

And the further rule 71a provides that:

“A motion for new trial shall be filed in all eases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error, in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.”

In the case of Land & Irrigation Co. v. Mercedes Plantation Co., 155 S. W. 286, in construing rule 71a the court said:

“The clear meaning of this rule is that motions for new trial shall be required in every case, whether tried with or without a jury, except when the statute by express provision does not require such a motion.”

And in view of the language of the two rules mentioned it would seem so. In that case the judge was requested to, and did, file conclusions of fact and law as provided by articles 1989-1891, R. S., and it was held by the court that by reason thereof a motion for new trial was by terms of the articles, excepted and not required. Same ruling in Walsh v. The Church, 173 S. W. 241. See Rwy. v. Lee, 157 S. W. 748, explaining change of practice. In the case of Pollard v. Allen & Sims, 171 S. W. 302, there was a trial without a jury, and the judge did not file conclusions of fact and law, and motion for a new trial was not filed. And the court held in that case that a motion for new trial was a prerequisite to have considered any assignment of error not fundamental in character. Thus it would appear that it has been decided that in trials before the court the statute does not except nor relieve of making a motion for new trial except where the judge files conclusions of fact and law in accordance with articles 1989-1891. And this court is not authorized to act except on valid assignments of error or fundamental errors.

As a consequence the judgment of the trial court must be affirmed.
      <§r^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes