text:
    FT. WORTH & D. C. RY. CO. v. SCHEER.
    (No. 635.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 20, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Railroads (§ 440) — Trial (§ 255) — Action for Value of Animals Killed — Burden of Proof — Instructions—Requests.
    In an action for the value of cattle, which went upon railroad tracks through an open gate and were killed or injured, the burden was upon the railroad company to exhibit the defense by its pleading, evidence, and a special charge that it was the duty of the adjoining landowner to maintain the gate in a proper condition, or that the open condition of the gate was due to some other agency.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §_§ 1570-3574; Dec. Dig. § 440; Trial, Cent. big. §§ 627-641; Dec. Dig. § 255.)
    2. Railroads (§ 447) — Actions for Value of Animals Killed — Instructions.
    In an action for the value of cattle, which went upon railroad tracks through a gate and were struck by a train, where, though there was evidence in the nature of a conclusion that the gate was at a private crossing, there was no evidence that it was constructed for the benefit of any adjoining landowner, nor that it was the landowner’s duty to maintain the gate in a proper condition, and there was evidence that the gate fastening was defective, an instruction authorizing a recovery if the right of way was not fenced in such a manner as under ordinary circumstances to effectually turn live stock of an ord'nary disposition was properly given.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.]
    3. Railroads (§ 447) — Actions fob Value of Animals Killed — Instructions.
    There was no conflict between an instruction authorizing a recovery if the right of way was not fenced in such a manner as under ordinary circumstances to effectually turn live stock of an_ ordinary disposition, and an instruction that if the gates at the crossing were kept in proper repair it was not the railroad company’s duty to keep them shut, and that if the cattle entered upon the right of way through the gates while they were open, and were killed, to find for defendant, as such instructions were in conformity with the issues affirmatively and negatively presented.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.]
    4. Railroads (§ 442) — Actions for Value of Animals Killed — Evidence.
    In such action, evidence as to the condition of the fence and of the gate was material and relevant, and properly admitted.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1596-1607; Dec. Dig. § 442.]
    5. Railroads (§ 447) — Actions for Value of Animals Killed — Instructions.
    In an action for the value of cattle, which went upon railroad tracks through a gate and were killed by a train, where there was evidence that the gate fastenings were insecure, that it had no regular latches, but was merely fastened with a piece of wire too short to make a complete hook, and that it could be opened by a touch of the hand, an instruction that it was not the company’s duty to remedy trivial defects, but only to repair substantial defects, was properly refused.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by C. S. Scheer against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Thompson & Barwise, of Ft. Worth, and Taylor •& Humphrey, of Henrietta, for appellant. Wantland & Parrish, of Henrietta, for appellee.

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

   HENDRICKS, J.

The appellee filed this suit against the appellant, the Ft. Worth & Denver City Railway Company, in the county court of Clay county, alleging in substance that the defendant’s train killed 10 head of steers and crippled another owned by him, by striking them with its engine; that the appellant was guilty of negligence, first by not having its track properly fenced, and, second, on account of the engineer failing to stop said train and avoid striking said cattle.

Appellant criticised the first paragraph of the court’s main charge to the jury, which paragraph is as follows:

“If you believe, from the evidence, that on or about the 21st day of May, 1913, that defendant killed 9 head of plaintiff’s cattle and injured 2 head, by striking them with its locomotive or cars, and you find that, at the time said cattle were struck, defendant’s right of way was not fenced in such a manner as under ordinary circumstances to effectually turn live stock of an ordinary disposition and docility, * * * then you will -return a verdict for the plaintiff.”

Appellant insists tliat there was no evidence that,r at the place the cattle were struck, the fence on the right of way was not in good repair, or was not such a fence as would turn cattle of ordinary disposition, and that said charge is in conflict with special charge No. 5, requested by it, and given by the court, which is as follows:

“If you find and believe from the evidence that the gates at the crossing where plaintiff’s cattle entered were kept in proper repair by the company, then it was not the duty of the defendant to keep said gates shut, and if said cattle entered said right of way through said gates, while the same were open, and were killed, then you will return a verdict for the defendant, unless you find that said killing of said cattle could have been avoided on the part of the engineer by the use of reasonable care.”

The evidence discloses that the cattle entered the right of way at a private crossing through an open gate; but the record is devoid of any testimony that this gate, which was a part of the right of way fence, had been constructed at the instance, or for the benefit of, ■ any adjoining landowner; nor does the testimony show that it was the duty of any adjoining landowner, or the appellee, who was the lessee of a pasture of such adjoining landowner, to maintain the gate in a proper condition- to exclude the cattle. In the case of Texas & Pacific Railway Co. v. Corn, 110 S. W. 486, wherein it was assigned that the trial “court erred in submitting to the jury the issue of negligence with reference to the condition of the gate,” Justice Stephens said:

“The circumstances indicated that some one in ■passing through the gate had probably neglected to lift it up and latch it” — holding that “the defective condition of the gate would be the proximate cause, in part at least, of its being left unfastened,” and further saying: “If * * * the gate was substantially out of fix, as appel-lees’ evidence undoubtedly tended to prove, and the evidence failed to show that the gate had been put in for the convenience of appellees, or that they had undertaken to maintain the same, we do not very clearly see how appellant, in maintaining its right of way, fence, is to avoid the consequence of a negligent' failure on its part to keep the gate in such repair as to render it reasonably sufficient under the circumstances to exclude cattle in the adjoining pasture from its right of way.”

The Supreme Court, in the same cause (Texas & Pac. Ry. Co. v. Corn, 102 Tex. 194, 114 S. W. 103), in affirming the decision of the Court of Civil Appeals, said:

“We are not prepared to hold that under all the circumstances the company would have been liable for the gate being left open, but to fence a track means that it must be securely fenced so as to prevent the ingress and egress of live stock. If this is not done, it can hardly be deemed a legal fence.”

The Supreme Court also intimated in that ' cause that the railway company would not be liable if the gate was left open by third parties, or by the appellee, the owner of the land, it being a gate for his accommodation, but that there was no such evidence in that ease, and'therefore “the company should be held responsible.” On the facts, that case seems to be quite similar to the instant case.

[ Referring to appellant’s assignment, and its proposition thereunder germane to the particular question, there is no criticism of the court’s charge, except that the -evidence was insufficient to show that the fence was not in good repair, or was not such a fence as would turn cattle of ordinary disposition, and that the main charge is inconsistent with the special charge. There is no assignment ■ in the brief challenging the action of the court in any manner on account of his failure to submit an issue as to the negligence of some third person with reference to said gate. The testimony indicates that for several years the fastening of this particular gate was insecure, and in the’same condition disclosed at the time the injury to plaintiff’s cattle occurred. The railway company fails to show that the fastening, at the time this fence and gate were constructed, was of any different character than the one at the time of the injury. There is no testimony that any other person except the railroad company owed the duty to keep up the gate, or repair the fastening, if defective. The Supreme Court, in the case of Texas Central Railway Co. v. Pruitt, 101 Tex. 553, 109 S. W. 926, settled the proposition in this state that the fence contemplated by the statute must not only be erected by the railway company, to obtain the immunity granted by the statute with reference to damages for injury to stock, but must be duly maintained as a sufficient fence; and, as expressed by Chief Justice Gaines:

“That is, that it shall be sufficiently inclosed to prevent the passage of live stock, and not that it [the railroad company] shall exercise ordinary care to see that it is maintained in that condition.”

From these premises, sound under the decisions, the burden was upon the railway company to exhibit the defense by its pleading, by the evidence, and a special charge, as to any duty of the adjoining landowner, and by Implication the appellee, as lessee, and bring the same forward for review in the event of the refusal of such an issue; likewise as to the submission of an issue as to any other agency causing said gate to be opened, contributing to the injury. In the condition of the prima facie case of negligence, suggested by this record, with reference to the defective condition of said fence on account of a defective gate fastening, which is at least a contributing and proximate cause to the injury, the statutory duty of the railway company applies with reference to the sufficiency of the fence, and if not fulfilled the immunity does not exist. There is a statement in the nature of a conclusion that this gate was at a private crossing ;' except from that statement we are not advised that this crossing was at a place where the company was required to keep one, or was required to build the same upon the demand contemplated by the statute. In the case of Texas & Pacific Railway Co. v. Webb, 102 Tex. 212, 114 S. W. 1172, the Supreme Court of the state said:

“The right of way was fenced, and the fence was in good condition, except that a gate in it had been left open. Why the gate was kept there is not shown, except that it was for a neighborhood road, traveled by people crossing the right of way and track. The crossing was not upon a'public road, and it is not shown that it was at a place where the company was required to keep one. * * * The liability must be held to be the same as if the track had not been fenced at all at that place.”

We think it would have been better for the railroad company to have more fully disclosed the conditions under which the crossing was constructed across the track at the place indicated.

That part of the assignment questioning said first paragraph, on the ground that it is in conflict with special charge No. 5, is hypercritical. The charges are in conformity with the issue affirmatively and negatively presented, upon which the cause seems to have been tried.

The second assignment of error, challenging the action of the court in admitting the testimony of certain witnesses as to the condition of the fastenings of' the gate, are overruled, as we clearly think such testimony was. material and relevant.

Appellant complains that the court erred in refusing to submit the following special charge:

“You are instructed in this case that it was not the duty of the railroad company to remedy trivial defects in the gates across the private crossings where plaintiff’s cattle entered said right of way, and it was only the duty of said defendant railway company to keep in repair the substantial defects of said gates, and if you find that said company performed its duty in that respect, then you will return a verdict for defendant, unless you find that the engineer was negligent in killing said cattle under the charge heretofore given you.”

Appellant cites the case of St. Louis & Southwestern Railway Co. of Texas v. Adams, 24 Tex. Civ. App. 231, 58 S. W 1036, on the question that it was not the duty of the railway company to remedy trivial defects in the fastenings of a gate erected at a private crossing for the benefit of adjacent landowners.

We are not placing ourselves in the attitude of criticising that case, but merely quote the. evidence with reference to the character of the defect exhibited here. Charlie Graves, witness for appellee, testified:

“The gate was not in good condition; that is, the fastening was not secure. It had a smooth wire, just hooked into a wire around the post to which the gate shut, and the wire was small and too short to reach around the wire it hooked into, and we fastened the gate by hooking the small wire into the other wire with a sloping hook, as the wire was not long enough to turn back and fasten securely. The. gate opened very easily. You could touch it with your hand and it would swing open. * * * The piece of wire used in fastening the gate was small and so short that if it had been crooked clear back, so as to make a complete hook, it would not have reached far enough to have reached the wire it was to hook onto.”

J. T. Graves, for appellee, testified:

“I am familiar with the gate, * * * and I considered that there was no gate. The fastening of the gate was just a little piece of wire, which fastened onto a wire around the post to which the gate was supposed to shut; but the gate did not reach that post, and the little piece of wire was too short to reach from the gate to the post and around the wire on the post and fasten securely;” and further said the small wire “fastened over with a sloping or gradual crook, and [the gate] was easily opened.”

The section foreman for the railway company testified that he often found the gate open, and that two or three days before the particular injury the gate was open. He said;

“I do not know about the fastening. They did not have any regular latches on them. The gate was open when I went back to track the cattle.”

Of course, in the condition of this Record, we are not advised whether this gate, which could be opened by a touch of the hand, was left open by some third party, or whether it had blown ajar. Applying the arbitrary rule promulgated by the statute with reference to the maintenance of a secure fence, and considering the condition of the testimony, which is practically undisputed, with reference to the insecure fastening upon this particular gate, without any regular latches upon the same, as testified by the section foreman, the trial court did not err in rejecting the’ special charge requested by appellant, and the cause is in all things affirmed.


source: Caselaw Access Project

author: McMEANS, J;

license: Public Domain

text:
    GOSHORN v. DANIEL.
    (No. 6650.)
    (Court of Civil Appeals of Texas Galveston.
    June 17, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Damages (§ 81) — Liquidated Damages.
    A contract for the sale of real property provided that to secure performance each party should deposit $50 in a specified bank, and that, if either failed to carry out his part of the contract, he should forfeit to the other party as liquidated damages the amount so deposited. Held, that such provision limited ^he damages that- either party might recover for breach of contract by the other party to the amount so agreed on.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 177; Dec. Dig. § SI.]
    2. Judgment (§ 590) — Res Judicata.
    A contract for the sale of real property provided that each party should deposit $50 with a bank, and that, if either failed to perform his part of the contract, he should forfeit to the other the sum so deposited as liquidated damages. The vendee, having rejected the title tendered, demanded a return of his deposit, and, this having been refused, assigned his claim to C , who sued and recovered judgment therefor. Held, that such judgment was res ju-dicata against the right of the vendor to recover any amount against the vendee for alleged breach of contract.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1035, 1063, 1064, 1102-1106; Dec. Dig. § 590.]

      Appeal from Liberty County Court; I. B. Simmons, Judge.
    • Action by M. P. Daniel against L. Gos-horn. Judgment for plaintiff, and defend•ant appeals.
    Reversed and rendered.
    W. A. Barlow, of Taylor, for appellant. E. B. Pickett, Jr., of Liberty, for appellee.

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

   McMEANS, J;

Appellee, M. P. Daniel, a real estate broker, endeavoring to sell a tract ■of 320 acres of land belonging to J. P. Richardson and E. B. Pickett, Jr., entered into negotiations with Dr. L. Goshorn, who resides in Taylor, Williamson county, which finally, on April 12, 1913, resulted in the execution of a written contract of sale and purchase between them, in which M. P. Daniel, •acting for the owners, agreed to sell the land, and Dr. Goshorn agreed to buy, at the price of $7 per acre, partly for cash and partly on credit. It was further agreed that Daniel should, within 30 days from the date of the contract, furnish to Goshorn a complete abstract of title, and that Goshorn would within 15 days thereafter have the same examined and advise Daniel in writing of his acceptance or rejection, and, if he rejected the title, should point out the grounds upon which his objections were based, and that, if any of the defects pointed out were such as could be cured, then Daniel should have 30 days in which to cure the same. The sixth paragraph of the contract is as follows:

“That to secure the performance of this contract on the part of each of the parties hereto they each deposit with a copy of this contract with the First State Bank of Liberty, Tex., the sum of $50. That if either of the parties hereto shall fail to carry out his part of this contract, he shall forfeit to the other party as his liquidated damages the said $50 so deposited, which shall, upon being called for by such party, be paid to him by said First State Bank. If, however, the title, to said land should not be approved, then such deposits shall be returned by said bank to the respective parties so depositing same. It is, however, understood that the deposit of said forfeit of $50, by each of the parties hereto, is for the purpose of enforcing the performance of this contract, and is not to be taken as a waiver on the part of either of said parties to have said contract specifically performed.”

After the execution of this contract Daniel and Goshorn each deposited $50 with the First State Bank of Liberty, together with a copy of the contract, and within 30 days after the' execution of the contract Daniel furnished to Goshorn an abstract of the title to the land, which the latter caused to be examined by his attorney, and within 15 days after its receipt he returned the same to Daniel, and advised him in writing that he rejected the title, pointing out the defects in the same. Immediately after this he demanded of the bank the return to him of the $50 which he had deposited with it, and, this demand being refused, he transferred his claim therefor to one V. G. Compton, and guaranteed to him its payment. Thereafter, on the 11th day of June, 1913, V. C. Compton brought suit against Daniel and the First State Bank of Liberty and Goshorn in the justice court of precinct No. 6 of Williamson county, in which precinct the said Goshorn resided, to recover said sum of $50 so deposited by Gos-horn in said bank, and on the 8th day of July, 1913, recovered a judgment in said ease therefor. After the institution of this suit in the justice’s court, and on the 25th day of June, 1913, and after both Daniel and the bank had been served with citation in the justice’s court case, Daniel filed this suit in the county court of Liberty county against Goshorn and the First State Bank of Liberty, alleging a breach by Goshorn of the contract hereinbefore referred to, and sought to recover judgment against Goshorn for $480, which he alleged to be the amount he would have made out of the sale of the land had Goshorn not breached the contract, and, in the alternative, sought judgment for $224.10, which he alleged was reasonable commission or compensation for the services performed by him in negotiating with Goshorn for the sale of the land, and prayed that if judgment should be rendered in his favor for either amount that the deposit of $50 made by Goshorn in the bank be applied as a credit thereon, and that judgment be accordingly entered against both Goshorn and the bank. He further prayed, in the alternative, that he have judgment against Goshorn and the bank for the $50 deposited by the former and held by the latter.

The defendant answered, setting up, among other defenses, the proceedings in .the justice’s court of Williamson county and the judgment in favor of Compton for the identical $50 deposited by him in the defendant bank as res judicata of plaintiff’s right thereto.

The case was tried by the court without a jury and resulted in a judgment in favor of plaintiff, Daniel, against the defendant Gos-horn for $50 and in favor of defendant bank. From this judgment the defendant Goshorn has appealed.

We shall not discuss appellant’s assignments of error in detail. It is clear, we think, that plaintiff, Daniel, was not entitled to a judgment for any amount against the defendant Goshorn. In the contract upon which the suit is based, and which was introduced in evidence, it was stipulated:

“That to secure the performance of this contract on the part of each of the parties hereto, they each deposit with a copy of this contract with the First State Bank of Liberty, Tex., the sum of $50. That if either of the parties hereto shall fail to carry out his part of this contract he shall forfeit to the other party, as his liquidated damages, the said $50 so deposited.”

This provision clearly expressed the intention of the parties to limit the damages that either of them might recover, in the event of the breach of the contract by the other to the amount thus agreed upon. This they had the clear right to do, and, having done so, the plaintiff Daniel’s right to recover damages in an amount other than that stipulated was foreclosed by the contract itself.

Under his pleadings and the facts, if he had any right of recovery at any time, it was limited to the $50 deposited by defendant Goshorn in the bank, but his right thereto had already been determined against him in the suit in the justice’s court of Williamson county, the judgment of which court in favor of Compton for the identical sum being res judicata of the claim thereto asserted in this suit. In this view Daniel had no standing in court, and the judgment should have been against him.

For the reasons stated, the judgment of the court below is reversed, and judgment here rendered for appellant.

Reversed and rendered.


author: McMEANS, J.

text:
    LANE v. McLEMORE.
    (No. 6875.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 12, 1914.)
    1. Elections (§ 305) — Election Contests— Appeals — Appellate Jurisdiction — “State Office.”
    Under Rev. St. 1911, art. 3154, providing that in state, district; county, etc., offices the certificate of nomination, issued by the president or chairman of the nominating convention, or chairman of the county executive committee, shall be subject to review, upon allegations of fraud or illegality, by the district court of the county, article 3156, providing that the decision of such court or judge shall be final as to all district, county, precinct, or municipal offices, and article 3158, providing that in all contests for state offices before the district court, either party may appeal to the Court of Civil Appeals, no appeal lies to the Court of Civil Appeals in a proceeding to contest the nomination for the office of congressman at large; as a congressman, whether elected from a district or from the state at large is not a state officer, but a federal officer, and the office of congressman is not a “state office,” which term does not refer to the territorial extent of the office to be filled, especially in view of article 3084, providing that on primary election day candidates for Governor and all other state offices to be chosen by a vote of the entire state, and candidates for Congress and all district offices shall be nominated at primary elections.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 317-332; Dec. Dig. § 305

    For other definitions, see Words and Phrases, Second Series, State Office.]
    2. Elections (§ 305) — Election Contests— Appeals — Appellate Jurisdiction — “Civil Case.”
    The Court of Civil Appeals has no jurisdiction of an appeal in a proceeding to contest a nomination for congressman at large by reason of its general jurisdiction of appeals in civil cases tried in the district courts, since a contested election case is not a “civil case,” as that term is used in conferring appellate jurisdiction upon the Courts of Civil Appeals.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 317-332; Dec. Dig. § 305.

    For other definitions, see Words and Phrases, First and Second Series, Civil.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge.
    Election contest by W. P. Lane against Jeff. McLemore. From a judgment for defendant, the contestant appeals.
    Appeal dismissed.
    Batts & Brooks, W. F. Ramsey, C. L. Black, and S. D. Ramsey, all of Austin, Stanley Boykin, of Ft. Worth, Worth Rdy, of Austin, and D. E. Simmons, of Houston, for appellant. Lane, Wolters & Storey, of Houston, and Q. U. Watson, of Giddings, for appellee.

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

   McMEANS, J.

W. P. Lane, Jeff. McLemore, J. H. Davis and others were candidates for the Democratic nominations for congressman at large, there being two nominations to be made, and were voted for at the Democratic primary election held in this state on July 25, 1914. It is conceded that J. H. Davis received the highest number of votes cast for any one candidate, and that he was by the state convention held at El Paso on August 11 and 12, 1914, properly declared the nominee of the Democratic party for one of two positions. The state convention con-vassed the vote cast in the primary election, and, after ascertaining the result, declared that Jeff. McLemore had received the next highest vote, and that he had thus received the Democratic nomination for congressman at large. W. P. Lane, claiming to have received a larger vote in the primary election than Jeff. McLemore, duly filed his contest before the state Democratic executive committee, which, after a hearing on August 21, 1914, sustained the decision of the convention and declared McLemore the nominee, to which Lane excepted, and gave notice of appeal to the district court of Texas having jurisdiction over the contest and of the matters therein involved.

On August 22, 1914, W. P. Lane filed in the district court of Harris county his original petition, contesting the nomination of Jeff. McLemore, and claiming that he had received a greater number of votes cast in the primary election than the contestee, sought to have the act of the convention reviewed and set aside, the true result declared, and that he be declared, by the judgment of the court, to be the nominee of the Democratic party for the office of congressman at large from this state; which suit was consolidated with the appeal taken from the action of the executive committee declaring McLemore to be the nominee. The consolidated case came, on for trial before Hon. Norman G. Kittrell, special judge of the district court of Harris county, who, on September 29, 1914, rendered a decision and judgment that the plaintiff, Lane, should not recover, but that the defendant, McLemore, was the duly and legally nominated Democratic candidate for congressman at large for the state of Texas, and ordered that such judgment be certified to the proper officers charged with the duty of providing the official ballot for their observance. To this judgment the plaintiff, Lane, excepted, and by appeal has brought the case to this, court for review.

We are met in limine by the contention presented by the appellee, MeLemore, that this court is without jurisdiction to entertain this appeal. A careful consideration of the statutes and decided cases bearing upon the subject has lead us to the conclusion that the contention is well taken and must be sustained.

Prior to the adoption in 1891 of the amendment to article 5 of the Constitution of this state the Legislature could not confer upon the district courts authority to try contested elections. Ashford v. Goodwin, 103 Tex. 494, 131 S. W. 535, Ann. Cas. 1913A, 699. To remedy that defect, section 8 of the amendment to article 5 was adopted, in which occurs this language:

“The district court shall have original jurisdiction * * * of contested elections.”

In pursuance of the authority thus conferred, the "Legislature, prior to the election which gave rise to this contest, passed the following statute:

“In state, district, county, precinct or municipal offices, the certificate of nomination issued by the president or chairman of the nominating convention, or chairman of the county executive committee, shall be subject to review, upon allegations of fraud or illegality, by the district court of the county in which the con-testee resides. * * *" Revised Statutes 1911, art. 3154.

This statute plainly confers upon the district court the power to hear and determine contests made by candidates for nomination to state, district, county, precinct, or municipal offices, and includes a contest between candidates for congressman at large, if such fall within any of the classes above stated.

Article 3156 of the Revised Statutes provides:

“The said court or judge (meaning the district court or judge) shall determine said contest; and the decision of said court or judge shall be final as to all district, county, precinct, or municipal offices.”

Article 3158 provides:

“In all contests for state offices before the district court, exercising either its original or appellate jurisdiction, either party may appeal to the Court of Civil Appeals. * * * ”

Thus it will be seen that by the express terms of the articles quoted above that in a contest for a district, county, precinct, or municipal office no appeal is allowed from the judgment of the district court, while in a contest for a state office an appeal is expressly provided for. In which category, then, does the office of congressman at large fall? If it'is a district office, an appeal is denied; if a state office an appeal is allowed; while if it is neither a state nor a district office, an appeal will not lie, because of a want of legislative authority in this court to hear and determine it. For the purpose of this opinion, we shall enter only into an investigation of whether the office in question is a state office; for, if it is not, then no appeal lies to this court from the judgment of the district court. The question, Who are state officers? has often been judicially answered. Thus in volume 36, CyC. pp. 852, 853, it is said:

“State officers are those whose duties concern the state at large, or the general public, although exercised in defined limits, and to whom are delegated the exercise of a portion of the sovereign power of the state. They are in a general sense those whose duties and powers are coextensive with the state, or are not limited to any political subdivision of the state. * * * ”

And on page 854:

“The term ‘state officer’ has been held to he as a- general rule applicable only to those superior executive officers who constitute the heads of the executive departments of the state, or such as belong to one of the three constituent branches of the state government.”

In American & English Encyclopedia of Law, vol. 23, page 327, it is said:

“In a popular sense' a state officer is one whose jurisdiction is coextensive with the state. In a more enlarged sense a state officer is one who receives his authority under the laws of the state and performs some of the governmental functions of the state.”

The Constitution of South Dakota contains a provision to the effect that the Governor and all other state and judicial officers, except county judges, justices of the peace, and police magistrates, shall be liable to impeachment, and that all officers not liable to impeachment shall be subject to removal for certain causes in such manner as may be provided by law. A question arose before the Supreme Court of that state as to whether a member of the board of trustees of one of the educational institutions of the state was a state officer within the meaning of the Constitution, so that he was removable only by impeachment. In deciding the question in the negative the court says:

“We are of the opinion that the term ‘state officer,’ as used in said section, includes only such general officers as immediately belong to one of the three constituent branches of the state government.” State v. Hewitt, 3 S. D. 187, 52 N. W. 878, 16 L. R. A. 413, 44 Am. St. Rep. 788.

To the same effect are State v. Smith, 6 Wash. 496, 33 Pac. 974; State v. Hocker, 39 Fla. 477, 22 South. 723, 63 Am. St. Rep. 174; State v. Spencer, 91 Mo. 206, 3 S. W. 410; State v. Dillon, 90 Mo. 229, 2 S. W. 417.

In view of the foregoing, and upon the considerations hereinafter stated, we are constrained to hold that the office of congressman at large is not a state office within the meaning of article 3158, which confers jurisdiction on this court to entertain an appeal from the judgment of the district court rendered in a contest for nomination to a state office. A congressman, whether elected from a district or from the state at large, is not a state officer, but a federal officer; he is remunerated from the federal treasury, not by the state; the office is-created by the federal Constitution, and the officer’s duty is to represent his constituency in the federal Congress and to there give consideration to legislation coming solely within the jurisdiction of the federal government. Viewed from every angle, we are unable to perceive any just grounds upon which he could base a claim to be a state officer.

But appellant, Lane, contends that:

“The language ‘for any state office’ means not necessarily the character of office to be voted for, as to whether it means one aspiring to a state office, or to one seeking a term as congressman from the state at large, but the word ‘state,’ as there used, has reference to the territorial extent of the office to be filled; that is to say, whether it is an office for which the whole state votes, or merely some district or county within the state.”

If the ordinary rules of statutory construction did not forbid the construction here contended for, we think a full answer thereto is found in the statute itself. In addition to the article above quoted, article 3084 provides:

“On primary election day in 1912, and every two years thereafter, candidates for Governor and for all other state offices to be chosen by a vote of the entire state, and candidates for Congress and all district offices to be chosen by vote of any district comprising more than one county, to be nominated by each organized political party * * * shall, together with all candidates for offices to be filled by the voters of a county or a portion of a county, be nominated in primary elections by the qualified voters of such party.”

We think it is too clear to require extend ed argument that this statute places state offices and the office of congressman, whether for a district or for the state at large, in different classes, and forbids the construction contended for by appellant as above stated.

In State v. Dillon, supra, the following language is used:

“It is a familiar rule of construction, requiring no citation of authorities to establish, that words, either in statutes or organic law, are to be understood according to their usual and ordinary meaning, and as we are of the opinion that the words ‘state officer,’ as used in the Constitution, are to be understood as having been used by the framers of the Constitution in their popular sense, and were intended only to refer to such officers whose official duties and functions are coextensive with the boundaries of the state, and were never intended to include such officers as constables or justices of the peace, whose official functions are to be performed in the townships in which they are elected, * * * nor to sheriffs, * * * whose functions are confined to their respective counties, and are commonly known and called county officers.”

Nor has this court jurisdiction of this appeal by reason of its general jurisdiction of appeals from all civil cases tried in the district courts. A contested election case is not a “civil ease,” as that term is used in the statute conferring appellate jurisdiction in civil cases upon the Courts of. Civil Appeals. Gibson v. Templeton, 62 Tex. 555.

It follows from what we have said that, in our opinion, this court has not jurisdiction to entertain this appeal, and that therefore the appeal must be dismissed, and it has been so ordered.


author: HALL, J. HALL, J.

text:
    AMARILLO NAT. BANK v. SANBORN et al.
    (No. 637.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1914.
    On Motion for Rehearing, Oct. 10, 1914.)
    1. Garnishment (§ 241) — Replevin Bond— Liability of Surety.
    A surety upon a garnishment bond which recited that, in order to release from the garnishment writs any and all debts and claims in the possession of the garnishees, and belonging to the defendant, the defendant and the sureties bound themselves to pay, etc., is es-topped from asserting that moneys paid to one of the garnishees as attorney for the defendant were subject to a lien in his favor; the bond admitting that the property, if any, was that of defendant.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 457; Dec. Dig. § 241.]
    On Motion for Rehearing.
    2. Estoppel (§ 119) — Equitable Estoppel —Question for Court.
    The question of the existence of an estoppel which precludes the person bound from contradicting a recital or admission is one of law for the court.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 309; Dec. Dig. § 119.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Suit by the Amarillo National Bank against William Harrell and others. From a judgment for defendants, plaintiff appeals.
    Affirmed in part, and in part reversed and rendered.
    A. A, Lumpkin, of Amarillo, for appellant. Madden, Trulove & Kimbrough, Jno. W. Veale, W. Boyce, and Gustavus & Jackson, all of Amarillo, for appellees.'

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

   HALL, J.

Appellant bank filed this suit on the 20th day of August, 1912, and applied for a writ of garnishment, claiming an indebtedness against William Harrell, in the sum of $4,058.30, evidenced by a note dated February 1, 1909, bearing interest from date at the rate of 10 per cent per annum, and providing for 10 per cent, attorney’s fees. It is alleged that said note had a credit of $2,000, paid March 9, 1909, and bore indorsement showing interest paid to May 26, 1909; and the action was further based upon one note executed by appellee William Harrell, in the sum of $300, dated March 22,‘ 1909, due July 22, 1909, with interest after maturity at 10 per cent., and providing for 10 per cent, attorney’s fees. Writs of garnishment were issued August 20, 1912, and served upon appellees Ellen M. Sanborn, H. G. Hendricks, and W. Boyce on August 21st and August 24th, respectively. On December 9, 1912, the defendant William Harrell, as principal, with H. G. Hendricks, Á1 Popham, and W. Boyce, as sureties, executed and delivered bis replevin bond to the clerk of the district court, replevying the moneys and properties impounded by said writs of garnishment, executing said bond in the sum of $7,300.

It appears that prior to July 12, 1910, ap-pellee Harrell was the owner of a certain note in the sum of $10,000, signed by O. H. Nelson. Prior to said date Harrell employed H. G. Hendricks and W. Boyce, as attorneys, to prosecute the claim to judgment, and agreed that, as compensation for their services, they should have a one-fourth interest in the claim. On the above date judgment was obtained on this debt. Thereafter executions were issued on this judgment and levied upon the interest of O. H. Nelson in certain lands in Hartley and Oldham counties. The lands so levied upon were bought in at execution sale by appellee Harrell. After the sales and crediting the amount of Harrell’s bid thereon, a balance remained unpaid on said judgment. Prior to March 2, 1912, Harrell had become indebted to Popham on two personal notes, one for $295.50 and the other for $136.50, and Popham was surety for Harrell on one note for $780 and one for $1,000, payable to the First National Bank of Amarillo, Tex., and on two notes for $1,385.65, payable to the Drumm Commission Company of Kansas City, Mo.

October 22, 1913, the garnishees H. G. Hendricks and W. Boyce filed their answer to the writs of garnishment, alleging that they were not indebted to the defendant Harrell unless the facts set forth in said answer would constitute such indebtedness. They ■ alleged, in substance, that on the 10th day of December, 1912, in accordance with the terms of a certain contract made and entered into by and between William Harrell, H. G. Hendricks, and-W. Boyce, as parties of the first part, and Ellen M. Sanborn, as party of the second part, dated the 17th day of July, 1912, and duly signed and executed prior to the service of the writ of garnishment herein, the said Ellen M. Sanborn paid to William Boyce the sum of $4,003.33, that being the balance due on said contract, there having been paid thereon the sum of $1,000 at the time of its execution prior to the service of the writ of garnishment; that at such time, as a condition of such payment, the said Boyce delivered to the said Ellen M. San-born the deed and assignment of judgment mentioned in said contract, as well as a release óf a deed of trust on a three-fourths interest in the land described in said deed, executed by A1 Popham and F. W. Popham, and deposited for delivery upon the payment of the amount due on said contract. It is further alleged that the said Boyce and Hendricks owned an interest in said fund paid by the said Ellen M. Sanborn, amounting to $1,089.06, and facts are stated which, if true, entitle them to receive such sum for their services as attorneys in representing appellee Harrell in the suit against Nelson. It is further alleged that Harrell and A1 Popham representated to them that the interest of William Harrell in said fund had been assigned to Popham and after the writs of garnishment were served Mrs. Sanborn refused to pay the money under said contract, and that the garnishees Hendricks, Boyce, and Popham became sureties for Harrell in the execution of the replevin bond mentioned above; that upon the filing of said bond Hendricks and Boyce had obtained possession of the fund, and had retained $1,089.06 and delivered $2,914.27, the remainder thereof, to A1 Popham, as authorized by an order in writing, signed by William Harrell, directing the said Boyce to make such payment. Attached to this answer, and forming, a part of it, was the contract made and executed by Mrs. Sanborn, William Harrell, H. G. Hendricks, and W. Boyce, mentioned above. It provides for the sale and conveyance to Mrs. Sanborn by the other parties thereto of the Nelson judgment, described as having been rendered in the district court of Potter county, in the sum of $10,375, and interest, and credited with $4,000, paid for certain lands in Oldham and Hartley counties. The provisions of this contract material to the determination of this controversy are as follows:

“First. The said William Harrell has sold and conveyed and, at the time of executing this contract, makes and executes his special warranty deed of conveyance to the said Mrs. Ellen M. Sanborn of all his right, title, and interest in and to the lands aforesaid, in Hartley and Oldham counties, Tex., conveyed by Edward F. Swift to O. H. Nelson, and also has sold and this day makes and executes an assignment and transfer to the said Mrs. Ellen M. Sanborn of the judgment aforesaid and the balance due and owing thereon against the said O. H. Nelson for the consideration of $5,000.00 paid and to be paid, as herein specified.”
“Third. The consideration hereinbefore mentioned is to be paid as follows: $1,000.00 in cash, the receipt of which is hereby acknowledged, and remaining $4,000.00 to be paid, at least one-half thereof, within thirty- days from the date hereof, and the remaining $2,000.00 on or before November 1, 1912; but in the event any part of said $4,000.00 is not paid within thirty days from the date hereof, such unpaid sum shall bear interest therefrom at the rate of 10 per cent. jjer annum, such payment to be made at Amarillo, Tex.
“Fourth. The deed of ■ conveyance and transfer of the judgment aforesaid are placed in the possession and are retained by the said William Boyce, until the consideration herein provided for is fully paid. Whereupon he shall make delivery of said deed and transfer to the said Ellen M. Sanborn, or her duly authorized agent, and the said William Boyce has authority to receive and receipt for the payments herein to be made by the said Mrs. Ellen M. Sanborn.
“Fifth. The said Mrs. Ellen M. Sanborn agrees to make the payments herein provided for, but she does not assume the payment of any costs that might be adjudged against the said William Harrell in said suit.”

It appears, after. Harrell had obtained the sheriff’s deeds to the Nelson lands, he, on March 2, 1912, executed to Francis Popham, as trustee, deeds of trust upon a three-fourths interest in said lands, to secure his indebtedness to A1 Popham, as well as to secure the said Popham against loss as his surety. The pleadings of Popham show that, in order to consummate the sale of the judgment, as provided for in the above-quoted contract, it became necessary for Harrell to procure a release of the deeds of trust from A1 Popham; that Popham agreed to, and did, execute the release with the understanding that it should be delivered to Boyce, to be held by him and delivered with Harrell’s deed to Mrs. San-born, upon payment by her of the money due under the contract; that the interest of Harrell in the funds coming from Mrs. Sanborn should be paid to A1 Popham by Boyce, in place and in lieu of the deeds of trust and lien held by A1 Popham. Popham alleges that long prior to the service of the writs of garnishment Harrell- assigned to him his interest in the fund to be derived from Mrs. Sanborn, and that such assignment was made for the purpose of securing Harrell’s indebtedness to Popham and Popham as surety on the notes to the First National Bank of Amarillo and the Drumm Oommission Company, and that by reason thereof he was the owner of the fund paid to him by Boyce, and that Harrell never owned any interest therein subject to garnishment.

By her answer Mrs. Sanborn did not admit that she owed Harrell the money, but alleged it to be due to the parties of the contract, under the terms thereof, and made the said contract a part of her answer.

Appellant admitted that Hendricks and Boyce were entitled to have the money received by them out of the Sanborn fund, but filed a reply to Popham’s pleadings, alleging that Harrell was notoriously insolvent on March 2, 1912, at the time of the execution of the deeds of trust, and that such deeds were executed solely for the purpose of placing the property of the said Harrell beyond the reach of his creditors, and that Popham knew of this purpose at the time; that if plaintiff was mistaken as to this, and that said deeds of trust were valid and subsisting liens on the interest of Harrell in said land, then that said deeds of trust were released in consideration of $750 paid to intervener Pop-ham, and that they were based upon a valuable consideration, and that from and after the time of the payment of said $750 and the receipt of said release Popham had no interest in said lands or the funds to be derived from the sale of the land or judgment, and specially denying that the intervener Popham had any ownership in said funds, and to allege that he procured an order for the same on or about the 9 th day of December, 1912, from Harrell to Boyce, directing the said Boyce to pay the money over to the intervener, and that at that time said intervener had full knowledge of said writs of garnishment and had executed the replevin bond, and could not thereby become the owner of said fund.

Plaintiff made a motion to strike out the answer of the defendant William Harrell, on the ground that he had no interest in the subject-matter of the suit, and that such answer was filed for the purpose of injuring and prejudicing the rights of plaintiff herein.

The case was tried before the court without the intervention of a jury, and on the 15th day of December, 1913, judgment was entered denying plaintiff a recovery and decreeing that the intervener A1 Popham be entitled to the sum of $2,914.27 of the fund received from Mrs. Sanborn, and adjudging all costs against the plaintiff.

The parties have filed able and exhaustive briefs upon the several points presented for consideration, but appellant has suggested fundamental error which, upon consideration, we think requires that the judgment below be in part reversed and rendered. It appears from the record that appellee Harrell filed a replevin bond containing the following recitals:

“Now, therefore, in order to release from said writs, and each of them, any and all the debts, claims, shares, and effects of any kind, subject to said writs, owing by or in the possession of the said Ellen M. Sanborn, H. G. Hendricks, and Wm. Boyce, and belonging to the said Wm. Harrell at the date of the service of said writs, or owing by the said garnishees to the said defendants, or effects in their possession belonging to the said Wm. Harrell up to the time of filing- answer herein, we the undersigned, Wm. Harrell, as principal, and Al. Popham, H. G. Hendricks, and Wm. Boyce, as sureties, acknowledge ourselves bound to pay to the said Amarillo National Bank of Amarillo, Tex., a corporation duly incorporated, the: sum of,” etc.

This bond is executed by Harrell as principal and by appellees Hendricks, Popham, and Boyce as sureties. The judgment entered decrees that the garnishees shall be discharged, and that appellant take nothing as against Harrell and the sureties on his re-plevin bond. It will be observed that this replevin bond claims the fund replevied as the property of Wm. Harrell, while the answer filed by Harrell and the garnishees, except Mrs. Sanborn, asserts that the fund, by reason of previous assignment, belongs to Popham and to Hendricks and Boyce. Appellant contends that, under the case of Seinshiemer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30 (in which the Supreme Court refused a writ of error), Harrell, Hendricks, and Boyce are estopped from claiming that the indebtedness was not due to Harrell, and base this claim upon the above-quoted recital in the replevin bond. In the Sein-shiemer Case, supra, Flanagan recovered a judgment in the district court against a firm (of which Seinshiemer was a member), and also against Seinshiemer individually. Thereafter Flanagan sued out a writ of garnishment for service on Wallis. Afterwards Seinshiemer filed a replevin bond in accordance with the statute. In due time Wallis, the garnishee, filed his answer. Judgment was rendered in the garnishment proceeding against Wallis that Flanagan recover tlie sum of $50, an amount which the answer of Wallis showed he had owed one Powell for hoard, but which account had been conveyed by Powell to Seinshiemer. Judgment was also rendered against Seinshiemer and the sureties on the replevin bond. In affirming this judgment, Williams, J., said:

“The fifth assignment of error complains of the judgment on the ground that it was based solely upon the written answer of the garnishee, and that such answer did not make it appear affirmatively that the garnishee was indebted to Seinshiemer, but did make it appear that he was indebted to Milton Powell. The recitals of the judgment authorized the presumption-that the question as to Wallis’ indebtedness was submitted to the court orally, and that the evidence which was heard justified the court in finding that the indebtedness was to Seinshiemer. Such a finding-would be at least inconsistent with the answer of the garnishee. It has been held that issues upon the answer of a garnishee can be made orally, by consent, and the recitals in the judgment authorize the conclusion that this was done. But another reason for holding this contention of the plaintiffs in error to be unsound is that Seinshiemer replevied the claim against Wallis, and the money was paid over to him. We do not think he can be heard, in this state of the case, to say that the indebtedness was not to him. While the statute authorizes him to make any defense which the garnishee could have made, this does not, in our opinion, entitle him to take such inconsistent positions before the court. His re-plevy bond, in effect, asserts that he is entitled to the money due from the garnishee, and his present contention isi _ in direct contradiction of that position. He is, in our opinion, estop-ped from asserting that the money was owing to Powell.”

In the instant case it is shown that on March 2, 1912, Harrell executed a deed of trust to secure the indebtedness mentioned above, due from him to Al Popham, as well as to secure Popham against all loss as surety upon his indebtedness to the Drumm Commission Company. On July 17, 1912, the contract for the sale of the balance due on the Nelson judgment and the Nelson land, was executed. On the following day at the request of Harrell, Al Popham executed a release of the deed of trust in order that the sale to Mrs. Sanborn might be consummated. The writs of garnishment, as stated, were served August 21st and 24th following; and on December 9th, subsequent thereto, the replevin bond, from which we have quoted above, was filed; but before Boyce, Who was the attorney of Harrell, would pay to Pop-ham his part of the money, the order herein-before set gut was obtained. We conclude that the fund coming into the hands of Boyce, who was the attorney and agent of Harrell, is, in effect, a receipt of the money by Harrell.

It is held in Garrity & Huey v. Thompson & Ohmstede, 64 Tex. 597, that a claimant who, by affidavit and bond, asserts an absolute title to the property, and endeavors to recover it in a suit brought under the statute regulating trials of the right of property, will not be heard to claim the property under- a mere lien, because the law will not permit parties to claim and get possession of property on one ground and then retain it upon another and different one, but must stand upon the ground which they first elected, citing Adoue v. Seeligson, 54 Tex. 593; Luckett v. Townsend, 3 Tex. 119, 49 Am. Dec. 723; Watts v. Johnson, 4 Tex. 311. These seem to be the only cases in this state passing upon the question of estoppel by inconsistent positions taken in litigation; but the doctrine is sustained by the weight of authority, as announced by the text-writers, and by the decisions of other jurisdictions. Bigelow on Es-toppel (6th Ed.) p. 407, uses this language:

“It' has also been held in a suit upon a re-plevin bond that the obligors will not be permitted to deny that the property was that of the defendant in the attachment, where the bond recited that the propery had been ‘attached as’ his”

—and, as supporting the text, cites Bursley v. Hamilton, 15 Pick. (Mass.) 40, 25 Am. Dec. 423; Bolling v. Vandiver, 91 Ala. 375, 8 South. 290. The writer states that a contrary doctrine has been held in Decherd v. Blanton, 3 Sneed (Tenn.) 373, and continues:

“However, it is certain that, if the recital is specific (as when it alleges that a writ was issued against the goods, chattels, lands, and tenements of the defendant, and a certain piece of property was levied upon by virtue of the writ), the obligor cannot deny that the property belonged to the defendant in the attachment, unless before forfeiture he surrendered the property, in accordance with the terms of the bond.” Gray v. MacLean, 17 Ill. 404; Mitchell v. Ingram, 38 Ala. 395; Dezell v. Odell, 3 Hill (N. Y.) 215, 38 Am. Dec. 628; Dresbach v. Minnis, 45 Cal. 223; Dewey v. Field, 4 Metc. (Mass.) 381, 38 Am. Dec. 376.

In Snouffer et al. v. City of Tipton, 150 Iowa, 73, 129 N. W. 345, Ann. Cas. 1912D, 414, the syllabus correctly states the holding of the court as follows:

“A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith, to the prejudice of the adverse party, and therefore where plaintiffs, in a former action in equity against them and others to cancel assessments, had an opportunity to offer to reconstruct and remedy defects in paving, but elected to defend on the ground that the work was done according to contract, they are estopped to claim that they had no opportunity to reconstruct and remedy the defects, in a suit by them on quantum meruit for a reasonable value of the paving” — citing numerous authorities sustaining the doctrine announced. 16 Gyc. 796, 785, 787; Hoffman v. Fleming, 66 Ohio St. 143, 64 N. E. 65, 66; Scanlon v. Alexander et al., 71 Minn. 351, 74 N. W. 146, 70 Am. St. Rep. 326; Peterson v. Woollen, 48 Kan. 762, 30 Pac. 128, 129, 30 Am. St. Rep. 327; U. S., to the Use of Hine et al., v. Morse, 218 U. S. 493, 31 Sup. Ct. 37, 54 L. Ed. 1123-1130, 21 Ann. Cas. 782; Smith v. Rogers et al., 191 Mo. 334, 90 S. W. 1153; People v. Hammond et al., 109 Cal. 384, 42 Pac. 38; Dalton v. Rust, 22 Tex. 133; volume 2, Ruling Case Law, § 106, p. 891.

We can conceive of no more inconsistent position being taken in court than that assumed by the defendant and garnishees in their pleading, on the one hand, and in the replevin bond by which they obtained possession of the fund, on the other, and in none of the eases do we find that the rule requiring estoppel to be pleaded was applied.

It appears from the record that the appellant admitted in open court that Hendricks and Boyce were entitled to recover the $1,089.06, adjudged to them, and to that estent, and in so far as it relates to Mrs. Sanborn, the judgment will be affirmed. As to that portion of the fund decreed to Pop-ham, the judgment is reversed, and here rendered for appellant. The costs are adjudged against Popham.

Affirmed in part and reversed and rendered in part.

HENDRICKS, J., disqualified, not participating.

On Motion for Rehearing.

HALL, J.

Appellees, except Mrs. San-born, have filed motions for rehearing, insisting that we erred in our original opinion, in that the question of estoppel should not have controlled the disposition of the case, and that, if the fund was not subject to garnishment, the judgment should have been affirmed, notwithstanding the question of es-toppel. The effect of an estoppel, whether legal or equitable, is to preclude the parties from contradicting the recital or admission on which the estoppel is founded, and its existence must always be a question of law for the court, and not of fact for the jury. Temple v. Partridge, 42 Me. 56; Jackson v. Waldron, 13 Wend. (N. Y.) 178; Wightman v. Reynolds, 24 Miss. 675; Goodrich v. Bryant, 5 Sneed (Tenn.) 325; Heilner v. Battin, 27 Pa. 517.

Appellees also request additional findings as to whether the fund sought to be reached by the garnishment was, at the time of the service of the writs of garnishment and execution of the replevin bond, subject to garnishment. Separate and apart from the question of estoppel, we think the fund was not subject to garnishment under the terms of the contract existing between the parties at the time the writ was served, but, in our opinion, appellees, by consummating the deal between the time of the service of the writ and the filing of their several answers, created a debt which could be garnished.

Since handing down our original opinion in this case at the last term, our attention has been called to the case of Davis v. McFall, 168 S. W. 453, in which Conner, J., citing Seinshiemer v. Flanagan and other authorities not cited by us, holds that the execution of a replevin bond, as in this ease, constitutes an estoppel against the defendant and his bondsmen.

We have carefully reviewed the motions for rehearing filed by appellees, as well as the authorities cited by them, and, while the grounds urged are strongly persuasive, we think the law is established in this state as we have declared it.

The motions for rehearing are therefore overruled.

HENDRICKS, J., disqualified, not participating.