author: FLY, C. J.

text:
    RHODES v. COLEMAN-FULTON PASTURE CO.
    (No. 5707.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 22, 1916.
    Rehearing Denied April 19, 1916.)
    1. Appeal and Ekkor <©=>512—Record on Appeal—Showing as to Jurisdiction-Sufficiency.
    Where the sum in controversy in the county court was $159, the transcript must show that the cause was first appealed from a justice court, and, if it fails to make such showing, the appellant should be given further time to perfect the record, but, if the record is not perfected, the appeal must be dismissed.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. <©=>512.]
    2. Appeal and Error <§=>659(1)—Record-Failure to Show Jurisdiction—Certio-rari.
    Certiorari is not the proper method to perfect a record on appeal which fails to show jurisdiction of the county court.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2834, 2835, 2837-2839; Dee. Dig. <©=>659(1).]
    3. Appeal and Error <©=^627(2)—Perfection op Appeal—Time.
    An appeal will be dismissed where brought on pauper’s oath after the filing of which the transcript was not filed for more than 90 days.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2747, 2749, 3126; Dec. Dig. <S=>627(2).]
    4. Appeal and Error <©=>508—Record on Appeal—Sufficiency.
    Where appeal is taken on a pauper’s oath and the record fails to show that proof thereunder was made by the county judge while the court was in session, the appeal will be dismissed.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2316; Dec. Dig. <©=>508.]
    5. Appeal and Error <©=>389(3)—Pauper’s Oath—Power op Judge.
    Where attempt is made to perfect appeal after the term at which judgment is rendered, the pauper’s oath must be made before the judge of the county court wherein the appellant resides, and, if the court trying the cáse is in session, proof must be made before the court and not the judge.
    [Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 2075; Dec. Dig. <¡£=>389(3).]
    6. Appeal and Error <©=>508—Record—Pau-per’s Oath—Suppiciency.
    Where appeal is taken on a pauper’s oath and the record fails to indicate that it was presented to the judge on the bench while holding session, it is insufficient, and the appeal will be dismissed for failure to show that the proof was made to the court.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2316;. Dec. Dig. <©=>508.]
    7. Appeal and Error <©=>937 (4)—Presump-tions—Pauper’s Oath—Sufficiency.
    Where, at the time affidavit of inability to pay costs was made, motion for new trial was pending and no notice of appeal had been given, it must be presumed that the affidavit was presented to the trial judge off the bench and certified to by him.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3792; Dec. Dig. <©=>937(4).]
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Action between the Coleman-Fulton -Pasture Company and D. Rhodes. From the judgment rendered, Rhodes appeals.
    Appeal dismissed.
    John A. Jones, of Sinton, for appellant.
   FLY, C. J.

Appellee seeks to dismiss the appeal in this case, for one reason, because the.transcript presents a suit for $159, instituted in the county court; the record failing to indicate that the cause was appealed from the justice’s court. The record should show this, and such showing cannot be made by certiorari, and hence the cause should be dismissed. However, before the appeal should be dismissed on that ground, appellant should be given an opportunity to perfect his record so as to show jurisdiction in the county court.

Another reason for seeking a dismissal is that the cause was brought to this court on a pauper’s oath, made on November 13, 1915, and the transcript was not filed in this court until February 18, 1916, more than 90 days after the appeal was perfected. Also, that the record fails to show that proof was made before the county judge while the court was in session.

There has been some conflict of opinion as to the proof required in ease of a pauper’s oath, which is the only question we deem It necessary to consider in this case; but it seems to be the holding of the Su-pre.me Court that, where an attempt is made to perfect an appeal after the term at which the judgment was rendered, the affidavit of inability to make an appeal bond must be made before the judge of the county court of tile county in which the appellant resides. Wooldridge v. Roller, 52 Tex. 452; Hearne v. Prendergast, 61 Tex. 627. However, if the affidavit is made while the court that tried the case is in session, proof must be made, not before the judge, but before the court. Graves v. Horn, 89 Tex. 77, 33 S. W. 322; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659.

In the case of Graves v. Horn, the court said:

“But it seems that there is reason for requiring that the proof should be made before the court, if the court be in session. The statute contains no express provision that notice shall be given, and it may be that it contemplated that, if it was sought to prove the inability to secure the costs while the court was in session, a better opportunity of knowledge would be afforded to the officers and parties adversely interested, and also the court might proceed in a summary manner to give what it deemed proper notice at once, and to require the contest, if desired, to be immediately made, to the end that it might be promptly determined. However that may be, the requirement is that if the court be in session the proof shall be made before the court; and although the affidavit of the party is sufficient, in the absence of contest, this clearly means that it shall be presented to the judge on the bench while holding sessions.”

To the same effect are Dixon v. Lynn, 154 S. W. 656, Fletcher v. Anderson, 145 S. W. 622, and French Piano & Organ Co. v. Elliott, 166 S. W. 29.

The affidavit in this case was made during the session of the county court before the county judge. There is nothing to indicate that it was “presented to the judge on the bench while holding sessions.” Can it be said that an affidavit, made before the judge, was one presented to the court? If so, the efficacy of the statute is destroyed, for it would amount to no more than an affidavit before the judge when his court was not in session. If the appellee had any rights in the premises, they were not conserved by a secret affidavit made four days at least before the motion for new trial was considered and overruled. The Supreme Court, in Smith v. Buffalo Oil Co., herein cited, did not hold that an affidavit alone found in the record would be sufficient when it was made while the court was in session, but said the court:

“We are therefore of the opinion that the affidavit itself and the evidence that it was made in open court are all that should be required.”

The affidavit of inability to pay costs was made when the motion for new trial was pending, and it cannot be presumed that any court would hear proof on an affidavit for an appeal before it had determined the motion for new trial. It was a novel proceeding to make the affidavit at such a time, and it must be inferred that it was merely presented to the trial judge, while he was off the bench, and was certified to by him. Not only was the motion for new trial pending at the time the affidavit was filed, but at that time no notice of appeal had been given, and the anomaly is presented of an appeal being arranged for before the necessity for an appeal had arisen.

The appeal is dismissed.
      <5£=>For other oases see same topic and KEY-NUMBER in all Koy-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    ABILENE INDEPENDENT TELEPHONE & TELEGRAPH CO. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
    (Nos. 8484, 8443.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 18, 1916.)
    1. Affidavits @=>3 — Knowledge oe Information-Affidavits Required.
    Affidavits required in the course of pleadings or for the obtaining of writs or special process, if made either by a party seeking relief or by his agent or attorney, should be on the knowledge of affiant as to the truth of the facts to which affidavit is made, and must constitute such a positive statement of knowledge of the facts as would constitute a proper basis for the charge of perjury if such facts were found to be untrue.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. § 16; Dec. Dig. <§=>3.]
    2. Pleading <§=>801(1) — Verification—Sufficiency of Affidavits.
    If from the petition itself the allegations stated to be made on the personal knowledge of affiant can be separated from those made on information and belief, and such allegations made on personal knowledge are sufficient, in themselves to entitle plaintiff to the relief prayed for, the verification of an entire petition would no be subject to general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 314, 318, 892, 896-897; Dec. Dig. @=>301(1).]
    3. Corporations <¾=557(2) — Receivers—Application for Appointment — Sufficiency of Allegations.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2128, § 3, providing that receivers may be appointed where a corporation is insolvent or in immediate danger of insolvency, a petition alleging that defendant company was indebted to plaintiff company in current account for labor, material, and rentals to the approximate amount of $15,000, that defendant was insolvent and was indebted for bonds secured by liens on its property which it was unable to pay, that it was unable to pay the interest on its bonds, $85,000 of which were held by plaintiff, with a prayer for the appointment of a receiver of defendant’s property to pay its indebtedness, as amended by allegations that defendant’s manager was incompetent and under the domination of defendant’s principal stockholder, residing outside the jurisdiction of the state courts, that his management would result in a depreciation of defendant’s property and the impairment of plaintiff’s security for its indebtedness and in' the misapplication of its operating revenues, made on the verification of plaintiff’s attorney to the effect that they were true as alleged, was sufficient to justify the appointment of a temporary or preliminary receiver.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. § 2228; Dee. Dig. <§=>557(2).]
    4. Corporations <§=3554 — Receivers — Grounds for Appointment — Indebtedness —Judgment for Lien.
    It is not necessary, to constitute grounds for the appointment of a receiver of a corporation, to show that the petitioner’s claim has been merged in a judgment or that it has an express lien on the corporate property, as the statutory provision is an extension or enlargement of the equity rule with reference to the subject-matter.
    [Ed. Note^-For other cases, see Corporations, Cent. Dig. § 2220; Dec. Dig. <§3=554.]
    5. Evidence <§3=43(2) — Judicial Notice — Appeal.
    It was the duty of the district judge to take judicial cognizance of the fact that his order ■appointing a temporary receiver had been appealed from, and it was the duty of the Court of Civil Appeals to take judicial cognizance of its own records in such appeal.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 63; Dec. Dig. <§=>43(2); Appeal and Error, Cent. Dig. § 2959.]
    6. Appeal and Error <§3=396 — Notice—Interlocutory Order.
    No notice is necessary on appeal from an interlocutory order appointing a receiver.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2099, 2102, 2104, 2150; Dec. Dig. <§==396.]
    7. Appeal and Error <§3=489' — Interlocutory Order — Supersedeas Bond — Effect.
    An appeal under a supersedeas bond horn an interlocutory order appointing a receiver stays all further proceedings in the trial court and suspends the functions of the receiver.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2279; Dec. Dig. <§=>489.]
    8. Appeal and Error <§=3489 — Interlocutory Order — Bond—Effect.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 2079, providing that the proceedings in other respects in the court below shall not be stayed during the pendency of the appeal, unless otherwise ordered by the appellate court, an appeal on an ordinary appeal bond, covering probable costs of the appeal, taken from an interlocutory order appointing a receiver, did not stay the proceedings in the trial court, so that the receivership might be continued there.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §• 2279; Dec. Dig. <§3=3489.]
    9.Pleading <⅞=312 — Exhibits — Effect — Conflict.
    An amended petition for the appointment of a receiver having a deed of trust attached as an exhibit and made a part thereof, made the terms of such instrument conclusive against contrary allegations contained in the body of the petition.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 943, 946, 948; Dee. Dig. <§==>
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Proceeding by the Southwestern Telegraph & Telephone Company against the Abilene Independent Telephone & Telegraph Company for the appointment of a receiver of defendant’s property to pay its indebtedness. From an interlocutory order appointing a temporary receiver, and from an order continuing the appointment, the defendant appeals.
    Judgments and orders affirmed.
    Ben L. Cox, of Abilene, and Theodore Mack, of Ft. Worth, for appellant. A. P. Wozencraft and Frank Wozencraft, both of Dallas, H. A. Tillett, of Abilene, and W. S. Bramlett, of 'Dallas, for appellee.
   BUCK, J.

On January 5, 1916, the Southwestern Telegraph & Telephone Company presented to the judge of the Forty-Second judicial district at Abilene, Taylor county, in chambers and during vacation, its petition alleging that the Abilene Independent Telephone & Telegraph Company was indebted to the plaintiff “in current account for labor, material, and rentals to the extent of approximately $15,000; that said defendant is insolvent and is unable to meet the said current indebtedness; that said defendant is indebted for bonds issued which are secured by liens on its property to the extent of more than $100,000, and that said defendant is not able to pay said bonds, and that said defendant is unable to pay the interest on its said bonds, and that the plaintiff holds and owns $85,000 of said bonds.” Plaintiff prayed for the appointment of a receiver to take charge of the property of defendant, and to proceed to pay said indebtedness, “which is due, demanded and unpaid.” Further recitations and allegations in the petition will be hereafter noted and discussed, but the foregoing is sufficient for the present purposes.

Upon the presentation of the petition to the judge of said court, the following fiat was indorsed thereon:

“Abilene, Texas, January 5th, 1916.
“In Chambers.
“The above and foregoing petition having been this day presented to me and duly considered, it is the opinion of the court that said defendant should be granted a hearing hereon, but because of the allegations showing a necessity for the immediate appointment of a receiver, and to protect to creditors the property and assets of said defendant from any possible waste or removal or disposition, it is further the opinion of the court that a temporary receiver should be appointed, to take charge of said business until said defendant can be given a proper hearing. It is therefore ordered by the court that the said matters alleged in this petition are set down for, and said defendants is hereby granted a hearing on same, before me at my office in the courthouse, in the city of Abilene, Taylor county, Texas, on the 24th day of January, A. D. 1916, at Í0 o’clock a. m. at which time said defendant is given an opportunity to show cause, if any it has, why such receivership should not be continued, and at which time, said plaintiff is expected to show cause why such receivership should be continued. It is further ordered that at the time this petition is filed, that the plaintiff shall at the same time file with the clerk of the district court of Taylor county, Texas, its good and sufficient bond in the terms of the law, payable to the said defendant, in the sum of $2,000, conditioned as provided for by law, and to be approved by said clerk; it is further ordered that O. A. Boulte, who is known to the court to be an experienced man in the general telephone business, and who resides in Abilene, Texas, and is familiar with the business of said defendant, be, and he is hereby appointed by the court as temporary receiver herein, and upon his taking the oath prescribed by law as such receiver, and his entering into and filing with said clerk a good and sufficient bond in the sum of ten thousand dollars, payable and conditioned as provided by law, he shall be authorized to take into his possession, and the officers and employés now in charge of said business and property of said defendant are hereby directed to turn over to said temporary receiver herein, all of the property, paper, books, fixtures and appliances, money and business belonging to said defendant, taking from the said receiver at such time an itemized receipt for all of the same, which receipt is to be given by said temporary receiver at the time he takes charge of such business, and such said receiver shall proceed to keep in his custody, care for, and carry on said business for the best interest of all concerned, as the law requires. Witness my hand this Jan. 5th, 1&16,
“[Signed] Thomas L. Blanton,
“Judge 42d Judicial District of Texas.”

On. the day of the order above set out O. A. Boulte, appointed as receiver, qualified by taking the oath prescribed by law and filing his bond in the sum of $10,000, and the plaintiff filed its bond for costs in the sum of $2,000, as prescribed by said order.

Erom this interlocutory order the defendant appealed, and the transcript was filed in this court January 8, 1916, and was given the docket number of 8143. On appellant’s motion to advance, the case was set for hearing February 11, 1916. Appellant filed application for supersedeas bond, motion for writ of prohibition, and appellee filed motion for leave to file supplemental transcript and to dismiss appellant’s motion for writ of prohibition, etc. All of these motions were passed to be considered with the main case.

On January 24th, the day set by the judge in his fiat for a further hearing on and a consideration of the matter alleged in the original petition, plaintiff, by its attorneys, appeared, and it appears that defendant’s attorney was also present, but insisting that the court did not have authority to make any further orders with reference to the receiver appointed because of the appeal taken, declined to appear for or on behalf of his client, or to do anything that could be held as a consent to, or waiver of, the court’s entertaining jurisdiction to make any further orders as to the receivership.

The order of the court thereupon entered was as follows:

“Bo it remembered that on the 5th day of January, 1916, the court entered the following order in this cause, to wit: [Here is inserted the order entered January 5th, 1916.] And it appearing to the court from the statement of lion. Ben D. Oox, who is an attorney for the defendant, that he had actual notice of the above order setting this case down for hearing for January 24th, 1916, on the very day that such order was made, and the court having at this time met in chambers at the place designated in said order on this the 24th day of January, 1916, for such hearing, at which time appeared the plaintiff by its attorneys, and the temporary receiver heretofore appointed by the court, and also there appeared the said Hon. Ben L. Cox, who in open court stated that he did not appear for the defendant because he claims the defendant has not been served with the order hereinbefore copied herein, and stated that he did not want any hearing, but in this connection, however, he stated that whatever he had stated or would state at this meeting and upon this occasion was only as amicus curiae and not as an attorney for any party litigant; whereupon the plaintiff asked for a hearing and asked permission to file an amended application for a receivership and further asked that in this connection the court consider a certain inventory and auditor’s report and receiver’s report as a ground for such receivership, and it is the opinion of the court that the plaintiff herein is entitled to a temporary receivership, and upon said plaintiff’s first amended original petition which the court permits the plaintiff to file herein, and also permits the plaintiff to file the said inventory and reports of auditor and receiver, it is therefore ordered that upon the plaintiff filing with the clerk of this court its good and sufficient bond in the terms of the law, payable to the said defendant, in the sum of $2,000.00 conditioned as provided for by law, and to be approved by the said clerk, that this temporary receivership shall be continued, and it is further ordered by the court that the said C. A. Boulte, who is known to the court to be an experienced man in the general telephone business and who resides in Abilene, Texas, and is familiar with the business of said defendant, be, and he is, hereby appointed by the court as temporary receiver herein, and upon his taking the oath prescribed by law as such receiver, and his entering into and filing with said clerk a good and sufficient bond in the sum of ten thousand dollars, payable 'and conditioned as provided for by law, he shall be authorized to continue in possession of the business and property of said defendant and he shall account to this court for all of the money, papers, books, fixtures, appliances, accounts, money and. business belonging to the said defendant, and such temporary receiver shall proceed to keep in his custody, care for, and carry on said business for the best interest of all concerned, as the law requires, and it is further ordered by the court that the bond heretofore entered into and executed by the plaintiff herein and payable to the said defendant shall in no wise be abrogated or set aside in any way, but that the same shall remain and is a valid and subsisting obligation, to protect the defendant concerning all rights with relation to all acts heretofore made by the plaintiff; and it is further ordered by the court that the bond heretofore entered into by the temporary receiver shall in no wise be abrogated, but shall remain in full force and effect as a binding and subsisting obligation in all things to protect the rights of the said defendant.
“It appearing to the court that the defendant is entitled to a hearing in this matter at any time it requests such hearing, it is ordered by the court that at any time application is made to the court by any party aggrieved, it will give such hearing and set same down at a date five days subsequent to such application in order to give adverse parties such notice, and it appearing to the court that the amount of the plaintiff’s claim herein is approximately $103,000.00, ⅛⅞ court here and now fixes the amount of the su-persedeas which may be given in this case in the sum of $120,000.00, same to be conditioned as provided for by law, and when filed to be approved by the clerk; such supersedeas to conform to requirements embraced in articles 2101, 2102, of the Revised Civil Statutes of 1911.”

Plaintiff and the receiver filed with the clerk of the court their bonds in like amount and to the same effect as the bonds filed on January 5th, and the receiver qualified by taking the oath prescribed by law.

From this order the defendant appealed, as before, and lodged transcript in this court on the 19th day of February, 1916, and the case was given the docket number of 8484. Because the two appeals arise out of the same cause of action and involve, of course, many questions in common we will treat them together and dispose of them in one judgment and in the same opinion.

The first question presented in the consideration of these appeals is, Was the first petition presented to the court in chambers on January 5, 1916, sufficient, as to allegations and verification, to be good as against a general demurrer, and, hence, to justify the appointment, on an ex parte hearing, of a receiver? We will first take up the question of the verification. The petition is divided into two parts, one of which is sworn to by E. D. Nims, styled “first vice president.” At the close of the petition as a whole appears a verification by Frank Wozencraft, one of the attorneys for the plaintiff company. Said verification is in form as follows:

“I, Frank Wozencraft, on my oath do state that I am one of the attorneys for plaintiff and authorized to make this affidavit. That the above and foregoing allegations of fact are true as alleged, and those alleged, on information and belief I believe them to be true.”

Under the general rule, where affidavits are required in the course of pleadings or for the obtaining of writs or special process, such affidavits may be made by the party seeking such relief himself, or by his agent or attorney, but if made by either it should be made on the knowledge of affiant as to the truth of the facts to which affidavit is made. The affidavit must constitute such a positive statement of knowledge of the facts as would constitute a proper basis for the charge of perjury, if such facts were found to be untrue. 2 Oye. p. 8, § 4, says:

“As a general rule, an affidavit by one person in behalf of another must bo made from facts within the personal knowledge of affiant, independent of mere hearsay of the parties or others; and an affidavit so drawn as to raise the inference that it was made on hearsay is insufficient.”

In Graham v. McCarty, 69 Tex. 324, 7 S. W. 342, it was held that an affidavit, to the effect that the facts set forth in a plea to the jurisdiction are true to the best of affiant’s knowledge and belief, was insufficient. See, also, Railway Co. v. Pietzseb, 10 Tex. Civ. App. 574, 30 S. W. 1083; Forest Oil Co. v. Wilson, 178 S. W. 626, and authorities therein cited. In speaking of tlie verification of applications for receivers, High on Receivers (3d Ed.) § 89, says:

“Affidavits upon which the application is based should be distinct and precise in their allegations, especially where fraud is .one of the grounds relied upon for the interference of the court. And where a receiver is sought of the affairs of a corporation, mere general allegations, in the affidavit supporting the motion, as to the belief of affiant that great frauds had been committed against the corporation, will not justify the relief, when it is not stated by whom the frauds have been committed, or in what they consist.”

And further quoting from section 88, Id.:

“But it is not sufficient in the application for a receiver to allege merely the legal conclusions upon which plaintiff relies and the facts must be averred upon which such conclusions are predicated.”

In the case of Henderson v. Reynolds, 168 Ind. 522, 81 N. E. 494, 11 L. R. A. (N. S.) 960, 11 Ann. Cas. 977, the authorities bearing on this point from the different states are collected and collated, and the Supreme Court of Indiana holds in the cited case that verification “to the best of his knowledge and belief” is not sufficient to entitle the complaint to any weight upon an ex parte application for the appointment of a receiver. In Siegmund v. Ascher, 37 Ill. App. 122, it was held that the affidavit to the effec-t “he has read said complaint, and knows the contents thereof, and that the same is true on his own knowledge,, except as to the matters stated on information and belief, and as to these he believes it to be true,” was bad. In this case the court says:

“We have decided that this form of oath makes the whole answer on information and belief, as there is no way of distinguishing between the matters so stated and those of which the complainant has knowledge.”

But we believe the proper and more reasonable rule to be, that if from the petition itself the allegations stated to be made on the personal knowledge of the affiant can be separated from those made on information and belief, and such allegations made on personal knowledge are sufficient in themselves to entitle the plaintiff to the relief prayed for, that the form of the verification made in the instant case would not be subject to general demurrer and, therefore, would be in this case sufficient to sustain the action of the court. We are not advised as to the form in which the allegations were made in the Illinois case citedr or as to whether in that case the allegations made on personal knowledge could have been separated from those made on information and belief and, therefore, whether in holding as we do we are in conflict with the enunciation made by the Illinois court, and by other courts cited in the case of Henderson v. Reynolds, supra. The verification of the petition made by Wozencraft, attorney, goes to and includes the allegations within the entire petition, both that part preceding and that part succeeding the affidavit of E. D. Nims, and, therefore, if the allegations .in the petition as a whole which are stated on the personal knowledge of the affiant are found to be sufficient to sustain the application for receiver, it becomes immaterial whether, as urged by appellant, the failure to more particularly describe said Nims and designate the capacity in which he acted in making the affidavit, would make the affidavit of Nims subject to general demurrer.

Article 11, p. 6, Vernon’s Sayles’ Texas Civil Statutes, provides:

“Whenever, at the commencement, or during the progress, of any civil suit or judicial proceeding, it may be necessary or proper for any party thereto to make an affidavit, such affidavit may be made by either the party, or his agent, or attorney.”

And it has been held in Cherryhomes v. Carter, 66 Tex. 166, 18 S. W. 443, that when an affidavit is made in the course of a judicial ■proceeding by some person in behalf of another, his authority should be made to appear from the record. If the designation of E. D. Nims as “first vice president” is not sufficient to show that he was first vice president of the plaintiff corporation and, therefore, its agent, and one under the statute authorized to make affidavit in behalf of the corporation, as claimed by appellant, which proposition we do not decide, yet since, as before stated, the verification of the attorney goes to the whole petition, we are not called upon to decide as to the. sufficiency of the verification made by Nims.

In addition to the allegations in the first petition heretofore set out, the following averments were made showing the grounds for receiver, to wit:

“That the aforesaid Gus H. Klotz the manager of said defendant company is not an expert telephone man, nor skilled in the direction and superintendency and management of a telephone plant such as is in operation in said city of Abilene and its adjoining territory, and that he is a brother of Lyman E. Klotz, the principal stockholder in defendant company, a nonresident of the state of Texas, and under his complete domination and control. That said defendant company is now seeking and attempting to have certified and sold additional of its bonds, for the purpose of obtaining funds with which to pay a large amount of unsecured indebtedness claimed by the said Lyman B. Klotz to be due him, and litigation between plaintiff company and defendant company relating thereto is now pending in the state of Missouri.”

It is further recited that:

“Plaintiff alleges that it has good reason to believe and does believe that unless prompt and speedy action be taken and a receiver be appointed forthwith that the assets and property and papers of said defendant company will be by the management thereof, and those in whose keeping and custody said property is, wasted, and removed and secreted and placed beyond' the roach and jurisdiction of this court, and great danger exists that such will be done. * * * That were the present management further continued the plant- is in great danger of further depreciation in value and rendered less efficient, and the current revenues and receipts used for the payment of defendant company’s indebtedness to Lyman E. Klotz, instead of to the upkeep and the successful operation and management of its plant, thereby lessening defendant’s assets, and plaintiff’s security, which can be avoided only by the immediate appointment of a receiver.”

We have reached the conclusion that the petition contains averments made on the personal knowledge of the affiant of facts sufficient to justify the first appointment of the receiver. It alleges, in effect, an indebtedness to plaintiff on the part of defendant for labor, material, and rentals in the amount of $15,000; that defendant is insolvent and is unable to meet said current indebtedness; it alleges the further indebtedness to plaintiff on the part of defendant for bonds issued which are secured by liens on defendant’s property to the extent of more than $100,000; that defendant is unable to pay said bonds, or the interest thereon, and that plaintiff holds and owns $85,000 of said bonds; that Gus H. Klotz, the manager of defendant com-pany, is incompetent to perform the duties of such position, and that he is under the control and domination of Lyman E. Klotz, the principal stockholder in defendant company and beyond the jurisdiction of the state courts, and that if said Gus H. Klotz be permitted to continue in the course he has heretofore followed that his management will result in the depreciation of defendant company’s properties in Abilene, and not only the impairment of plaintiff’s security for the collection of its bonded indebtedness and interest thereon, but such continuance in the management will result in the disabling of the defendant company, so that it will not continue as a going concern, and that such management would result in misapplication and dissipation of the revenues derived from the operation of the plant.' "While insolvency of a corporation in equity is no ground for the appointment of a receiver, yet by article 2128, § 3, Vernon’s Sayles’ Texas Civil Statutes, it is provided that receivers may be appointed “in cases where a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.” Galvin v. McConnell, 53 Tex. Civ. App. 486, 117 S. W. 211.

Nor is it necessary, to constitute grounds for the appointment of a receiver of a corporation, to show that the plaintiff’s claim has been merged in a judgment, or that it has an express lien on the corporate property, the statutory provision having been held to be an extension or enlargement of the equity rule with reference to this matter. S. A. & G. S. Ry. v. Davis, 30 S. W. 693. In this case, on motion for rehearing, the Court of Appeals for the Fourth district says:

“Appellees question the ruling held in our opinion that it was not essential for the granting of the receiver that the claim of the creditor should have become a judgment or in the form of an express lien, and insist that the case cited by this court does not support the rule. The opinion in that case, in an answer to a certified question (Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 86 Tex. 156, 24 S. W. 16 [22 L. R. A. 802]), discussing the statute (Sayles’ Civil Statutes, art. 1461) states: ‘Without considering whether they may be implied limitations to this statutory rule, it illustrates the fact that in this state mere insolvency of a corporation has been made a ground for the appointment of a receiver, doubtless for the purpose of enforcing claims against the corporate property in behalf of creditors, which could not be thus enforced without recognition of the fact that the property is, at least in a limited sense, a trust fund to which creditors have the right to resort.’ The cases relied on by appellant (Carter v. Hightower, 79 Tex. 137, 15 S. W. 223, and others) did not relate to corporations, and have no bearing on the third clause of said article in question. We entertain no doubt concerning the intention of the Legislature to ere-ate a rule respecting receiverships of corporations different from that to be applied in respect to individuals, or in ordinary cases.”

In Shaw v. Shaw, 61 Tex. Civ. App. 55, 112 S. W. 124, Chief Justice Pleasants of the Court of Civil Appeals for the First district, after referring to the provisions in the article above mentioned (now 2128) says:

“Section 4 of this article of the statute is not a limitation upon the right given in the preceding sections, but an extension of such remedy to all cases in which the remedy was allowed under the rules and usages of courts of equity; and, when the facts in a particular case justify the appointment of a receiver ■ under sections 1, 2, or 3 of this article, the right to receivership is a legal right, and is not dependent upon the general rules of practice in courts of equity. Summer v. Crawford, 91 Tex. 130, 41 S. W. 994.”

See, also, Houston Cemetery Co. v. Drew, 13 Tex. Civ. App. 536, 36 S. W. 803; Childress v. State Trust Co., 32 S. W. 330; Cotton et al. v. Rand et al., 92 S. W. 266.

In Ripy et al. v. Redwater Lumber Co., 48 Tex. Civ. App. 311, 106 S. W. 474, in an opinion by Chief Justice Rainey, of the Court of Civil Appeals for the Dallas district, it was held that where the petition for the appointment of a receiver of a manufacturing corporation alleged that substantially all of its property was either mortgaged or pledged to creditors who threatened foreclosure, and that there was a large unsecured debt, that judgments had been recovered against it on which execution sales were threatened, that taxes on its property were in default, and containing other allegations tending to show great danger of insolvency, though it was admitted in the petition that the full value of the assets, if realized, would cover all liabilities, the appointment of receivers was justified.

From what we have said above it follows that the judgment and order of the court of date January 5, 1916, must be affirmed, and, having affirmed the trial court’s judgment, that appellant’s motion, No. 7919, and application for supersedeas bond, and its motion, No. 7935, for writ of prohibition, be refused, and the costs, both in the trial court and in this court, of all proceedings relating thereto, must be taxed against appellant.

We now come to the consideration of cause No. 8484 on our trial docket, it being the appeal from the trial court’s order of January 24th.

In its first amended petition, filed under leave of the court January 24th, plaintiff alleged the indebtedness on current account set out in its original petition, though the amount in the amended petition was placed at $14,592.66, an itemized statement of which was attached to the petition as an exhibit. It was further alleged that the defendant was in default in the payment of the interest due and maturing on the bonds of the face value of $85,000, and held by plaintiff, in the sum of $2,550, said interest being due on November 1, 1915, and after enlarging somewhat on its allegations as to the insolvency and eminent danger of insolvency of the defendant company, and the mismanagement of its superintendent and manager, Gus II. Klotz, and the misuse and misapplication by him of the revenues derived from the conduct of the defendant company’s business at Abilene, and after further allegations of the failure of said defendant company to perform the agreements, stipulations, and covenants contained in a mortgage given by the defendant company and secured by a deed of trust executed by it, in which deed of trust the Mississippi Valley Trust Company was made trustee, and after alleging the failure of defendant company to set apart in cash a sum equal to 5 per cent, of its gross income from telephone rentals, etc., for the redemption and retiring of the bonds, for the securing of which the deed of trust had been given, and as provided in said deed of trust, said petition recites the appointment of the receiver, of date January 5, 1916, and the qualification of said receiver under said appointment, and recites the setting of the hearing for January 24, 1916, for the purpose of determining whether or not said receiver should be continued, and concludes by a prayer that on the hearing of said amended petition “said receiver be continued as provided by law under the further orders of this court, and that the said C. A. Boulte be continued as such receiver, or such other person as the court may deem proper, and that on final hearing hereof plaintiff have judgment against the defendant for its respective debts, the principal and interest, and that the receiver herein be directed to discharge and satisfy the same, that the said bonds of the plaintiff be established, and declared a lien against said property of the defendant, that said mortgage be foreclosed, and that plaintiff have such other and further relief in law and in equity as it may be entitled to in the premises.” This petition was verified by Frank Wozeneraft, attorney, and no complaint is made as to the form of verification.

It is contended by appellant that the order of January 5, 1916, did not become functus officio on January 24, 1916, for the reason that it was the purpose and intent of the district judge that the receivership of January 5th should continue unless appellant should file its motion to dissolve, and said motion should be granted. It is further contended by appellant that it was the duty of the district judge to take judicial cognizance of the fact that the order of January 5th had been appealed from, and that it is the duty of this court to take judicial cognizance of its own record in said appeal. The last two propositions we think are sound. State of Texas v. Savage, 105 Tex. 467, 151 S. W. 530. No notice is necessary on appeal from an interlocutory order appointing a receiver. Farwell v. Babcock, 27 Tex. Civ. App. 162, 65 S. W. 509.

In Carter v. Carter, 40 S. W. 1030, it was held that an appeal under a supersede-as bond from an interlocutory order appointing a receiver stays all further proceedings in the trial court and suspends the functions of the receiver. This authority is cited with approval in Cemetery Association v. Cemetery Co., 24 Tex. Civ. App. 668, 60 S. W. 679, writ of error in 94 Tex. 710, no opinion. See, also, Waters-Pierce Oil Co. v. State (Sup.) 106 S. W. 326. In all three of these cases a supersedeas bond was filed in the court below, but in the instant case the appeal comes up on an ordinary appeal bond, covering probable cost of appeal. We are cited to no authority, and have found none, holding that an appeal from an interlocutory ■ order such as this, and in the absence of a supersedeas bond, stays the proceedings in the court below. The statute, part of article 2079, Vernon’s Sayles’ Texas Civil Statutes says:

“But the proceedings in other respects in the court below shall not be stayed during the pend-ency of the appeal unless otherwise ordered by the appellate court.”

Hence, we conclude that the proceedings in the trial court were not stayed by reason of the appeal herein, and that, if the order of January 5, 1916, did not expire by virtue of its own terms on January 24th as contended by appellant, and did not become functus of-ficio, then the district court had authority on January 24th to permit the filing of an amended petition, and to continue the receivership, under the same or additional bond, as he might see fit. Hence, we conclude that the order and judgment of January 24th', in so far as it purports to continue the receivership theretofore granted, must be affirmed.

It might be well to state that our judgment as to the sufficiency of the allegations in the. petitions, original and amended, does not include in its holdings the proposition that plaintiff in either petition showed a present right of recovery on the bonds, principal and interest. Certainly in the original petition no such right is shown, nor do we understand that it was the purpose of the pleader to declare on such bonded indebtedness as a part of its cause of action.' The allegations therein contained with reference to said bonds, and the inability of the defendant company to pay either the principal thereof or the interest th'ereon, were understood by us and evidently intended- by the pleader as mere averments of facts tending to show present or impending insolvency of defendant company.

In the amended petition plaintiff attached said deed of trust as an exhibit to its petition, and made it a part thereof, and therefore the terms of said instrument must be held as conclusive against contrary allegations contained in the body of the petition. H. & B. V. Ry. Co. v. Hughes, 182 S. W. 23 (not yet officially published); Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684; Beham v. Ghio, 75 Tex. 87, 12 S. W. 996; Lester v. Insurance Co., 84 Tex. 90, 19 S. W. 356.

It appears from an examination of the terms of the deed of trust, that in case of the default of the mortgagor, either as to the payment of interest or principal, or the failure to perform other covenants therein contained, a breach of which would mature the entire debt, the holder or holders of any bonds or coupons issued thereunder shall have no right to institute any proceedings for the collection of money evidenced thereby, or for the foreclosure of the indenture, or the execution of the trust thereof, or for the appointment of receiver, or for .any other remedy under this indenture, or otherwise, without first giving notice in writing to the trustee of default having been made and continued as aforesaid, and by such notice request the trustee to so proceed to enforce the lien therein created, etc. There is no allegation in the petition that the'trustee had been requested to file suit, or that, having beefi requested, he had failed to do so, and therefore we conclude that as to the bonds and interest the suit is brought prematurely. But as we have concluded that the petitions contain allegations with reference to the-current indebtedness sufficient to justify the appointment of a receiver, in so far as these appeals are concerned, it becomes immaterial that plaintiff included in its amended petition as a part of its cause of action the declaration on the bonded indebtedness, but the trial court in the further proceedings will be governed by the opinion hereinabove expressed.

The judgments of the trial court are hereby affirmed.
      ¡grsjFor other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      <§=Kor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE), J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. LYNCH et al.
    (No. 7148.)
    (Court of Civil Appeals of Texas. Galveston.
    March 20, 1916.
    Rehearing Denied April 20, 1916.)
    Eminent Domain <§=>307(4) — Damases—Ver-dict.
    In a suit by owner of property injured by a railroad, a jury may not fix the value of the property, immediately after the wrong complained of, at a less sum than given by any witness.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 824; Dec. Dig. <§=>307(4).]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by John Lynch and others against the Houston Belt & Terminal Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded, unless remittitur be filed.
    Andrews,. Streetman, Burns & Logue, of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for ap-pellees.
   LANE), J.

This suit was brought in the district court of Harris county by John Lynch, Julia Lynch, John J. Lynch, James A. Lynch, and Mary M. Clasick against the Houston Belt & Terminal Railway Company, and other railway companies, which were later dismissed from the suit before trial, to recover damages to certain property owned by plaintiffs in the city of Houston, which they allege was caused by defendant by the construction of certain railroad tracks near said property, and by the operation of engines, cars, and trains over said tracks.

The trial was had before a jury, to whom the cause was submitted upon two special issues:

First. “What was the fair market value of plaintiffs’ property in question immediately before the construction in or about the summer or fall of 1910, after August 7th in that year, of the tracks of which plaintiffs complain, and the beginning of operations thereover?” Second. “What was the fair market value of plaintiffs’ property in question immediately after the construction in or about the summer or fall of 1910, after August 7th in that year, of the tracks of which plaintiffs complain, and the beginning of operations thereover?”

To the first question the jury answered, “$2,750;” and to the second, $1,450.” Upon these answers the court rendered judgment for plaintiff against the defendant Houston Belt & Terminal Railway Company for the sum of $1,300 damages and for $3(30 as interest thereon from date of said damage to date of the judgment.

Appellant presents the following assignment and propositions thereunder:

First Assignment: “The answer of the jury to special issue number two submitted to them, wherein the jury found that the market value of the property in question, just after the tracks complained of were constructed and operations begun thereover, was $1,450, is wholly without support in the evidence, for that the plaintiff himself admitted that the market value of said property at said time was from $1,500 to $1,600, and no further evidence as to the market value of said property at said time was offered by plaintiff, and all the witnesses called by tlie defendant testified that the value of said property at said time was in excess of what plaintiff admitted it was, and there was no sufficient evidence to justify the jury in discarding all the testimony, both of plaintiff and of defendant, and finding a less value of said property at said time than was established by such testimony.”
Proposition: “First. Where the issue of the market value of real property at a given time is in dispute, and both the plaintiff and the defendant have by their testimony fixed such value, a jury is unwarranted in finding the value to be a sum not within the range of the testimony so given. Second. Market value as distinguished from intrinsic value, being susceptible of proof by expert or opinion testimony only when such testimony comes from one peculiarly qualified to give it, is not presumed to ,be within the common knowledge of jurors, and the verdict of a jury finding market value must be supported by testimony and cannot stand against testimony. Third. A verdict fixing market value at a less or greater sum than testified to by any witness is without support in the evidence and should be set aside., because such verdict is of necessity based either upon conjecture or upon the nonexpert opinions of the jurors, which opinions would not themselves he admissible in evidence were the jurors sworn as witnesses. Fourth. The verdict in question, in that.it finds the value of the property in dispute immediately after the construction of the tracks complained of and beginning of operations thereover to be a sum less than was testified to by the plaintiff himself, who was the only witness tendered by him upon that fact, is manifestly without support in the evidence, and based either üpon conjecture or upon the nonexpert opinions of the jurors, which, not being admissible as evidence if offered, cannot be permitted to control the admitted and competent testimony to the contrary.”

The testimony as to the value of the property immediately before and immediately after the acts complained of was as follows:

The plaintiff, John Lynch, testified:

“Immediately after the Houston Belt & Terminal Railway Company constructed the tracks and other connections in proximity to said property, which were constructed by it after August 9, 1910, and thereupon began its operations since conducted over such tracks, the fail-market value of my property was about $1,500, or $1,600 would be the outside value, taking ‘market value’ as moaning the price which was to be paid for a piece of property if sold by one who desired to sell, but who was not obliged to sell, and bought by one who was under no necessity of buying it, but desired to buy it. I am, from my especial familiarity with this property as I have testified about, acquainted with its market value at the times you have just inquired about. In fixing those values, I have stated, I took into consideration the adaptation of this property to such uses as it was capable. In fixing those vahies, I took into consideration two new main lines that are constructed practically around my place, and the raising of the roadbed or street to about three feet above the grade, sinking the ditch in front along my place and leaving it stand full of water the year around, and then in placing switches so that they were switching six or seven hours out of the twenty-four hours continuously — not continuously, but for an average of about seven or eight hours — switching right in front of my place continuously every twenty-four hours, and principally at-night, and making the place impossible to live in_ or to be of any value for any uses. I took into consideration the, increase in. the switching and of course the increase in trains; the noise and smoke of course is all greater. ⅜ * * ah those constructions were put down there inside of two weeks, about August 10, 1910.”

He testified on cross-examination as follows:-

“I said that after 1910 it was only worth $1,500 or $1,000, the whole place. As to whether I will take $1,600 for it now, after this suit is over and I see what treatment I got, I will talk to you about that. I will take $1,600 for it if you will give me the balance in damages. Without any question of damages, I will not take $1,600 for it, not right now. As to whether I will take $2,000 for it; you can’t make me take anything for it now, because it is in litigation. As to whether I will take $2,500 for it; it is not a question of sale now, I, understand. It is not for sale right now, it is in litigation; I can’t sell it.”

The defendant’s witness L. H. Dunn testified:

“In my judgment, the -reasonable market value of that property in July of 1910 was approximately $4,000. In my judgment, the reasonable market value of that property, considering its uses for residence purposes at that time, was $1,800. I said that the reasonable market value of that property at the time stated was approximately $4,000. I mean by that the property possessed that value for a warehouse site or for any general store purposes. * * * I don’t think there was any difference in the values of that property brought about by the change that was made in the condition of those tracks before 1910 and now. I don’t think there was any difference in the value of Lynch’s property caused by that change.”

The defendant’s witness J. W. Burkett testified:

“I am familiar with the reasonable market value of the property of Mr. Lynch just before that change was made in those tracks; I have my opinion on the subject. I think the lot by itself, it being a corner lot, was probably worth anywhere from $1,600 to $1,800 at that time, and the buildings and improvements there were worth about $1,000; that would be about $2,-800 for the whole thing, the lot and the improvements. I don’t think there was any material change in the value of that property either way just after those improvements and changes were made in the tracks there. I think its fair market value remained the same.”

The defendant’s witness J. H. McCracken testified:

“I had a fair knowledge of values in and prior to August, 1910, when the Houston Belt & Terminal Railway Company put in two curved tracks there by Mr. Lynch’s property in place of the two straight tracks on Walker avenue. In my judgment, the fair market value of those corner lots in there along the railroad tracks, the old iSanta Fé tracks, was in the neighborhood of $1,500 to $1,800; that is the value of the lot not considering any improvements. I should judge the improvements on that lot could be put on there for about $1,000. Just after that change was made in those tracks in August, 1910, there was no great material difference in the value of that property, probably 10 or 15 per cent. I stated that before that change was made in those tracks, immediately before that, the corner lot was worth $1,500 to $1,800, not considering the improvements, and that the improvements were worth about $1,000. Just after those tracks were put in there, there was no great increase; it probably added a little more value to it for a small factory site, or something of that kind. It never was a desirable residence corner.”

The defendant’s witness F. F. Arnim testified:

“I am familiar in a general way with the reasonable market value of that lot of ground, lot one (1), in block 242, at a time just before the change was made in the tracks of the Houston Belt & Terminal Railway Company in August of 1910. At that time the fair market value of that lot, not considering the improvements on it, was $1,500. I think that would be a very fair value for it after those tracks were curved there in August of 1910. I don’t see that that damaged the property any.”

It clearly appears that no witness testified that the market value of plaintiff’s property immediately after the acts complained of was less than $1,500. The jury in the face of this evidence found such value to be only $1,450, $50 less than the value fixed by any witness. To arrive at such value, they must have based their finding of such value upon their opinion formed from the description of the premises of plaintiff by the several witnesses as to its condition just after the acts complained of occurred; as to its close proximity to the tracksj of defendant company, as detailed by said witnesses, as well as the moisés created by passing trains, switching of cars, etc., testified to by the witnesses, and not from their personal or expert knowledge of the damaging effect such things would have on said premises. To say the least of it, it is clear that such finding was not based upon the figures given by any witness. From what has been said, it follows that if the propositions of appellant, hereinbefore set out, announce a correct rule of law in such cases as the present case, the judgment rendered in this case cannot stand, and must be reversed unless the same can be corrected by a remittitur. Appellee, however,' contends that as the jury heard the witnesses describe the alleged damaged premises of plaintiffs as to its condition just after the acts complained of occurred — that is, as to the close proximity to the tracks of defendant, the noises caused by passing and switching of trains and cars, etc., — and as they had before them, in connection with the testimony of the witnesses, sketches and pictures of the premises, which enabled them to see for themselves the nature of the construction of the tracks complained of, and their location with relation to plaintiffs’ property, they could apply their experience and knowledge of such matters, and form their own conclusion therefrom ás to the true value of said property, and that they would not be bound to stay within the range of the figures given by the witnesses. In support of this contention they cite the case of Houston Belt & Terminal Co. v. Vogel, 179 S. W. 268.

The case cited is one in which the jury found the value of the property damaged just before the acts complained of to be $5,250. Some of the witnesses had testified to a greater, and others to a- less, value than that found by the jury, but none had fixed such value at $5,250, as found by the jury. In that case this court said:

“It was a matter peculiarly within the province of the jury to weigh the testimony, judge the credibility of the witnesses, and to reach a conclusion supported by testimony to which they gave credence, or a conclusion reached by blending all the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry. We cannot say, therefore, that the jury, in arriving at the conclusion they reached, did so without regard to the testimony, or that their verdict was against the preponderance of the evidence to that degree which shows that manifest injustice has been done, or to indicate that they were actuated by sympathy, bias, prejudice, or some other improper motive. They were not concluded by the opinion of experts, but in weighing the testimony they had a right to apply their own experience and knowledge, and to deduce therefrom the truth as they believed it. Thus in Lawson’s Expert and Opinion Ev. (2d. Ed.) p. 496, under rule 61, it is said: ‘We have seen the opinions of attorneys testifying to the value of lawyer’s services are not conclusive on the jury, who may act independently or in opposition to them, applying to the case their own experience and knowledge of the character of the services. The same is true of the opinions of all experts and nonexperts as to value.’ In Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028, it is said: ‘While they [the jury] cannot act in any case upon particular facts material to its disposition resting in that private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and the force of that evidence by their own general knowledge of the subject of inquiry.’ In Patterson v. Boston, 20 Pick. (Mass.) 166, it is said: ‘Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, which depends on knowledge and experience, if they might not avail themselves of those powers of their minds when they are most necessary to the performance of their duties.’ The jury was not compelled to credit all the testimony of any witness, or reject it all (Railway v. Taylor, 20 Tex. Civ. App. 654, 49 S. W. 1055), but could have accepted as true a portion of the testimony of any or either of them, rejecting the remainder, in order to base their verdict upon what they believed to be the real facts. Garcia v. Sanders, 90 Tex. 109, 37 S. W. 314.”

The majority of this court differentiates the holding in case cited from the contention of appellee in this case, in that in the case cited the finding of value by the jury in that case was within the range of the testimony given by the several witnesses, while in the present case the value fixed by the jury was not within the range of the testimony given by the witnesses, but such value found by the jury was less by $50 than any witness fixed it. The holding of the court in the case cited finds support in many reported eases, and perhaps should be and is followed by this court, but the writer is unable to see the' difference in the proposition of law announced in that case and the proposition contended for by appellee in this case. For if it is a matter peculiarly within the province of the jury to weigh the testimony of the witnesses in such case as the one cited, and to reach a conclusion from such testimony by blending all the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry to fix a value not given by any witness, it seems to the writer that the same peculiar province should apply in the present case. If the jury in one case may, by blending all the evidence admitted before them, aided by their own experience and knowledge, find a value of the property not given by any witness, then why not in the other? It seems to the writer that to say that in the first case the finding of the jury was within th'e range of the testimony of the witnesses furnishes no reason for permitting the jury to fix a value not fixed by any witness, while a different rule is applied to a case where the jury are denied the province to fix a value but little less than that fixed ■by any witness. Why should they not be allowed to fix the value in the last case, if permitted to do so in the first?

In the case of Zanesville, M. & P. Ry. Co. v. Bolen, 76 Ohio St. 385, 81 N. E. 684, 11 L. R. A. (N. S.) 1110, 10 Ann. Cas. 660, it is said:

“Jurors are selected partly because of their general intelligence and general knowledge of affairs, but not because of their supposed particular knowledge of the particular subject. The body may be made up of draymen, professional men, merchants, carpenters, shoemakers, tailors, men with little if any knowledge of real estate values; and yet it is proposed to allow them to substitute their judgment for that of men who, before they are permitted to testify, must qualify and show expert knowledge.”

While the writer differs with the majority of the court in applying a different rule in the two cases discussed, he concurs with the majority in holding that in the present case the jury was not authorized to fix a value on the property in question, immediately after the wrongs complained of, at a less sum than that given by any witness. Zanesville, M. & P. Ry. Co. v. Bolen, 76 Ohio St. 376, 81 N. E. 681, 11 L. R. A. (N. S.) 1107, 10 Ann. Cas. 658; Washburn v. Milwaukee Ry., 59 Wis. 364, 18 N. W. 328.

Having concluded that the finding of the jury that the value of plaintiff’s property immediately after the acts complained of was $1,450, a sum $50 less than the value of such property given by any witness, is not supported by any evidence adduced upon the trial, we further conclude that the judgment of the trial court based upon such finding of the jury must be reversed unless appellees shall, within ten days from the 16th day of March, 1916, file with the clerk of this court a re-mittitur of $62.40. In the event such remit-titur is so filed the judgment as reformed will be affirmed.

In reaching the conclusion that the judgment of the trial court should be affirmed in ease a remittitur of $62.40 be filed in this court, we have considered the fact that no witness has placed the value of plaintiff’s property just after the acts complained of at less than $1,500, and that upon this evidence the jury could have fixed such value at $1,-500, but not at a lesser sum; but it is evident that as the jury found and fixed such value at $1,450, in the nature of things they would in no event, though they had been confined within the range of values as given by the several witnesses, have fixed a greater value than $1,500. We therefore conclude that the difference between $1,450, the value fixed by the jury without evidence to' support it, and $1,500, the minimum value given by any witness, to wit $50, together with $12.40, being the interest on $50 from date ■ of the alleged damage to the date of judgment, as found by the court, is in excess of any judgment authorized by the evidence, giving credence to the finding of the jury that the property of plaintiff was of the value of $2,750 just before the acts complained of, and should be remitted before the judgment can be affirmed.

We have considered appellant’s second assignment of error and overrule the same. We think the argument of counsel for appellant, as disclosed by the briefs of both parties, was not improper, but pertinent to the case, and did not call for or authorize the purported reply of counsel for appellees. We think the argument complained of was improper, and counsel is warned to refrain from such argument in' the future, but we cannot believe it possible that such argument influenced the jury in rendering their verdict in this case.

Por the reasons hereinbefore pointed out, the judgment of the trial court will be reversed and the cause remanded, unless appel-lee shall within 10 days from the 16th day of March, 1916, file with the clerk of. this court a remittitur of $62.40; but in the event such remittitur is so filed the judgment of the trial court will be reformed as indicated and affirmed.
      <§n=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    RIO GRANDE, E. P. & S. F. RY. CO. v. STARNES.
    (No. 548.)
    (Court of Civil Appeals of Texas. El Paso.
    March 23, 1916.
    Rehearing Denied April 20, 1916.)
    Trial <S=ol91(6), 244(4) — Instructions — As- ■ sumption op Pacts — Undue Emphasis.
    • An instruction specifying different features of negligence for which, if established, defendant might be liable, held not reversible error as assuming negligence by defendant or unduly calling attention to defendant’s claimed negligence.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 429, 579; Dec. Dig. <®=ol91(6), 244(4).J
    Appeal from District Court, El Paso County ; Ballard Ooldwell, Judge.
    Action by William S. Starnes against the Rio Grande, El Paso & Santa Pé Railway Company. Prom judgment for the plaintiff, defendant appeals.
    Affirmed.
    Turney & Burges, of .El Paso, and Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, ali of Galveston, for appellant. Moore & Harris and T. A. Palvey, all of El Paso, for appellee.
   HARPER, C. J.

Appellee filed this suit against the appellant and the Atchison, Topeka & Santa Pé Railway Company in the district court of El Paso county, Tex., for personal injuries sustained by him by being struck by a string of cars at the crossing between the tracks of the railway company aiid Leon street in the city of El Paso. The plaintiff’s allegations of negligence were as follows:

“(a) The defendants were negligent in constructing their track and moving their cars thereon across said street so near said building that plaintiff, in the exercise of due and ordinary care, was struck by said car before he could see the clanger of being struck by said car.
“(b) The defendants and their agents, servants and employés for whose negligence defendants are liable, were negligent in so moving said cars across said street, without giving notice dr warning to plaintiff.
“(c) Said defendants, their said agents, servants and employés, were negligent in propelling-said car across said street and injuring plaintiff without ringing bell or blowing a whistle, in such proximity to said crossing as to give notice to plaintiff of the movement of said cars.
“(d) Said defendants, their said agents, servants and employés, were negligent in backing said car across said street and injuring plaintiff without giving notice or warning to him óf the approach of said car.
“(e) That defendants were negligent in backing said cars across said street on said track without having some person at said crossing to give notice that said cars were to be backed across said street.”

■ The defendants answered by general demurrer and general denial, and also by a plea of contributory negligence, and a plea that the plaintiff was not injured at the place alleged by him, but at another place where persons were not accustomed to use the track, and that he was a trespasser at the time of his injury.

The cause went to trial on October 7, 1915. Plaintiff dismissed as to the defendant the Atchison, Topeka & Santa Fé Railway Company, and on October 9, 1915, secured a verdict and judgment against the defendant Rio Grande, El Pas» & Santa Pé Railroad Company for the sum of $8,000. Amended motion for new trial was duly filed and overruled. Supersedeas bond was duly filed and cause is here presented.

The sixth paragraph of the court’s charge reads:

“Now, if you believe from a preponderance of the evidence that on or about the 17th day of May, 1914, the plaintiff was walking on the west side of Leon street, going south, and while in the exercise of ordinary care for his own safety, stopped past the corner of the building on the west side of Leon street at the intersection of the alley, alleged in plaintiff’s petition, with said Leon street, plaintiff was struck and knocked down by a car or cars, as alleged by Mm, and received the injuries alleged in his petition; and you further find (b) that defendant was negligent in moving its- cars across said street without giving notice or warning to plaintiff, if it did fail to give such notice or warning; (c) or that defendant was negligent in propelling its car or cars across Leon street without ringing a bell or blowing a whistle, if it did fail to ring a bell or blow a whistle; (d) or that defendant was negligent in backing said cars across said street and injuring plaintiff, without giving notice or warning to. him of the approach of said cars if it did so back said cars without giving notice or warning of the approach of said cars; (e) or that defendant was negligent in backing said cars across said street on said track without some person being at said crossing to give notice that said cars' were to be backed across said street; if you find that it did fail to have some person at said crossing to give notice that said cars would be backed across said street, and if you further find that defendant was negligent in any or all of the particulars heretofore mentioned, and that such negligence, if any, was the proximate cause of the injury to plaintiff, then you will find for the plaintiff, unless you find for the' defendant under subsequent paragraphs of this charge.”

All of the appellant’s assignments are addressed to this portion of the court’s charge and urge that it constitutes reversible error for the following reasons:

“Because the same is on the weight of the evidence and is particularly on the weight of the evidence in (a) that it assumes that defendant moved its cars across said track without giving notice or warning to plaintiff that it was going to do so; (b) that it assumes that defendant failed to ring a bell or blow a whistle in moving said cars across said street; (c) it assumes that defendant did not give notice or warning to plaintiff that it was going to back said cars across said street; (d) that it assumes that defendant was negligent in not having some person at said crossing to give notice that said cars were to be backed across said street; (e) because it singles out each separate fact constituting the group of facts upon which plaintiff relies for a recovery herein and specially directs the jury’s attention to each of said facts constituting said group of facts and is in fact a special charge on each fact of said group of facts, and it thereby places said facts before the jury too prominently and unduly and prejudicially emphasizing each fact upon which plaintiff relies for a recovery, thereby giving undue prominence and special emphasis to each of said facts and plaintiff’s theory of the case, to the great prejudice of plaintiff; (f) and because subdivisions ‘b,’ ⅛,’ ■d,’ and ‘e’ of said paragraph VI, in fact constitute four separate charges on the facts or group of facts constituting a single ground of liability against defendant and thereby unduly emphasized said facts or group of facts to defendant’s prejudice; (g) and because it assumes that if defendant had given such notice or warning as was referred to therein, plaintiff would not have been injured; whereas, it is a question of fact for the jury whether if said warning had been given, the plaintiff would have been injured, especially is this true in view of defendant’s evidence and defense to the effect and tending to show that plaintiff was not at said crossing at the time of the alleged injury, but was lying under a car further down defendant’s track.”

We tliink it is apparent that the charge is not subject to the criticisms urged. The assignments are therefore overruled, and the cause affirmed.
      <®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    CADENA et al. v. STATE ex rel. LESLIE, Dist. Atty., et al.
    (No. 5698.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 22, 1916.
    Rehearing Denied April 19, 1916.)
    1. ScnooiiS and ScnooL Districts ⅞==>99 — Powers — Levy oe Taxes — Statute.
    Under the act creating the Benavides Independent School District, approved March 22, 1915, effective June 19, 1915 (Loe. & Spec. Acts 84th Leg. c. -54) authorizing the levy of maintenance taxes by the board of trustees who were given the same powers conferred by the general laws upon the trustees of such districts, the board was authorized to levy a tax in September, 1915, to supply a maintenance fund, as the act reciting the deplorable conditions of the public schools within such territory and creating an emergency contemplated that the people should obtain its benefits immediately, and as all property owned on the first of January is subject to any tax authorized by law, whether authorized theretofore or during the year, and which may be levied by the'body given the power to levy at any time during the year.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 233, 234; Dec. Dig. <®=99.]
    2. Taxation <®=»297 — Time oe Levy — Statute.
    Laws naming the time for the levy of taxes are merely directory, and. legal taxes can be levied whenever the necessity arises.
    [Ed. Note. — Eor other eases, see Taxation, Cent. Dig. §§ 474-482 ; Dec. Dig. ,<®=^297.]
    3. Taxation <⅞^58 — Statutes — Retrospective Efeect.
    Laws authorizing taxes are not retrospective, so far as the year in which they are authorized is concerned.
    [Ed. Note. — Eor other eases, see Taxation, Cent. Dig. §§ 134, 135; Dec. Dig. <8=>58J
    Appeal from District Court, Duval County; C. W. Taylor, Judge.
    Suit for injunction by the State of Texas, through J. E. Leslie, District Attorney, upon the relation of John Ball and others, against L. Cadena and others, the Board of Trustees of the Benavides Independent School District, and E. Caballero and another, Managers of Election.
    Injunction granted, and the Board appeals. Affirmed in part, and judgment granting the injunction reversed, and judgment rendered setting aside such injunction.
    Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellant.
   ELY, C. J.

This is a suit instituted by the state of Texas, through J. E. Leslie, district attorney in and for the Seventy-Ninth judicial district, upon the relation of John Ball, Murray Dubose, R, Driscoll, A. E. Rouse, A. J. Ayers, E. J. Rogers, and John E. Dubose, against L. Cadena, E. B. Puig, Dario Serna, Jesus Salinas, Ruperto Cadena, and Juan Saenz, the board of trustees of the Benavides independent school district, and E. Caballero and H. D. Roach, managers of election, to oust the trustees and managers from their positions and to declare void the act of the Legislature creating the school district, that the order for an election be held invalid, and that the trustees and managers of election be restrained from taking any further action and that the tax collector be restrained from collecting the maintenance tax already voted. The court adjudged the school district to be a legal and valid one, but granted an injunction to restrain the collection of taxes for 1915, because the district was not in existence on January 1, 1915. This appeal was perfected by the board of trustees. Appellees have filed no cross-assignments, and therefore the only point at issue is the action of the court in restraining the collection of the taxes for 1915.

The act creating the Benavides independent school district was approved by the Governor on March 22, 1915 (Loe. & Spec. Acts 34th Leg. c. 54), and went into effect on June 19, 1915. That act authorized the levy of taxes by the board of trustees for the issuance of bonds and a maintenance tax, and they were given the same “rights, powers, privileges and duties conferred and imposed by the general laws of this state upon the trustees of independent school districts created and organized for school purposes only under the general laws of the state.” A board of trustees was elected, and in September, 1915, levied a tax of 25 cents on tbe $100 to supply a maintenance fund. It is not contended that the authority to levy the maintenance tax was not vested in the board of trustees; the only contention being that, as the district was not in existence on January 1, 1915, no tax could be levied for that year.

It was evidently contemplated by the Legislature that the people of the district should obtain the benefits of its creation immediately; for it is recited in the law that the deplorable condition of the public free schools within the territory therein described, not having adequate school accommodations, and not having necessary funds to provide the same, created an emergency and an imperative public necessity for the act to take effect at once. It was clearly intended that the necessary funds for the building and maintenance of schoolhouses should be provided as soon as the law went into effect. It could not have been contemplated that, instead of the law becoming effective immediately or in 90 days after adjournment at the farthest, it should not go into effect until the following year, and yet that would be the logical result if the judgment of the lower court could be sustained. Under that ruling, if the law had gone into effect on January 2d, the tax could not have been levied and collected for that year, because the district was not in existence on January 1st, of the year.

Cooley on Taxation, pp. 494, 495, is cited as sustaining the position of appellees, and the judgment in this case, but the quotation made therefrom has no reference to a case of this kind. The text has reference to taxes levied for years back of the one in which the levy is made, but not to taxes levied for the current year. This is indicated by several of the eases cited in the footnotes as sustaining the text. For instance, in the case of McClellan v. Railroad Co., 11 Lea (Tenn.) 336, it was held that, where a 20-year exemption expired in March and an assessment was made in April for the current year, the party assessed was entitled to no abatement in respect of the time that had already run.

In the case of People v. Gold Company, 92 N. Y. 383, it was contended by a corporation, which came into existence in November, that it could not be compelled to pay taxes for that year, but the court held that it should be compelled to pay the taxes. The court stated that, if the contention of the corporation should be upheld, no taxes would be collected until January of the second year after it was organized. So in this case, if no tax could have been levied for 1915, appellees could not be forced to pay any maintenance tax until 1917, and in the meantime the schools of the district would be without a maintenance fund.

All property owned on the 1st day of January is subject to any tax authorized by law, whether such taxes have been authorized theretofore or may be authorized during the year, and can be levied by the body given the power to levy at any time during the year. Laws naming the time for the levy of taxes are merely directory, and legal taxes can be levied whenever the necessity arises. Laws authorizing taxes are not retrospective so far as the year in which they are authorized is concerned.

The power is given boards of trustees of independent school districts to levy a tax not exceeding 50 cents on the $100 valuation of taxable property to provide for bonds and a maintenance fund and the board of trustees in this case acted within the authority given them by law. This court has held in a recent decision that such boards can levy taxes for the whole year under a law creating the district during the year for which the tax is levied. David v. Timon, 183 S. W. 88.

The judgment is affirmed in so far as it held the school 'district legally created and organized and dissolving the injunction as to future taxes, but that portion of it which perpetuated the injunction as to taxes levied for 1915 is reversed, and judgment here rendered setting aside such injunction, and that appellees take nothing by their suit and pay all costs of this court, as well as those of the lower court.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WALTON & STOCKTON v. CORPUS CHRISTI NAT. BANK.
    (No. 5648.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Garnishment <§=>92 — Institution ox Suit.
    Where an affidavit for a distress warrant against defendant was made July 2, 1914, and a statutory bond was executed on the same day, the suit was thereby commenced, so that an application for a writ of garnishment filed the following day would not be quashed on the ground that no suit had been instituted when it was applied for.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 170-173; Dec. Dig. <§=>92.]
    2. Garnishment <§=>87 — Affidavit for Writ —“Agent.”
    In an action by a partnership, an application for a writ of garnishment signed by the partnership and by the members thereof by a manager was duly signed by an “agent” for the partnership.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 156-169, 163-166; Dec. Dig. <§=> 87.
    For other definitions, see Words and Phrases, First and Second Series, Agent.]
    3. Appeal and Error <§=>71(2) — Final Judgment.
    In a suit for supplies furnished, with a distress warrant against defendant, a garnishment proceeding against a third person was a separate and distinct suit from the original suit, and the court’s action in quashing the garnishment proceeding was a final judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 389-392; Dec. Dig. <§=» 71(2).]
    Appeal from Nueces County Court; Walter P. Timón, Judge.
    Action by Walton & Stockton against G. C. Orand, with writ of garnishment against the Corpus Christi National Bank, and intervention by defendant in the garnishment suit.
    Motion to'quash garnishment proceedings sustained, and plaintiffs appeal. Reversed, and cause remanded.
    G. R. Scott, Boone & Pope, C. Lawrence, and Gowan Jones, all of Corpus Christi, for appellants. Kleberg, Stayton & Picton, of Corpus Christi, for appellee.
   FLY, C. J.

Appellants sued G. C. Orand for supplies furnished, and applied for and obtained a distress warrant, and afterwards applied for a writ of garnishment directed against the Corpus Christi National Bank. The garnishee, on July 20, 1914, answered, admitting that it was indebted to G. C. Orand in the sum of $109.75. Afterwards, on November 16, 1914, G. C. Orand, defendant in the original suit, intervened in the garnishment suit, which, of course, was separately docketed from the suit for debt, and moved to quash the garnishment proceedings for certain reasons therein stated. The motion to quash was sustained, and this appeal is prosecuted from that order.

On July 2, 1914, an affidavit for a distress warrant was filed by Nola White, agent and manager for W. W. Walton and H. M. Stockton, and on the same day a statutory bond was executed. On July 3, 1914, an application for a writ of garnishment was filed. The application was signed Walton & Stockton, and W. W. Walton and H. M. Stockton, by Nola White, manager, and was followed by the words:

“Sworn to and subscribed before me this 3d day of July, A. D. 1914. [Seal.] Jos. A. Cohn, Notary Public, Nueces County, Texas.”

The affidavit for garnishment was quashed on motion of defendant in the principal suit, on the grounds that no suit had been instituted when the writ of garnishment was applied for, and that the affidavit was not sworn to by any agent or attorney of appellants. The petition of appellants was filed on July 27, 1914, twenty-four days after the application for a writ of garnishment, and on this ground the defendant in the original suit based his contention that the suit was not instituted until that time. As said by the Supreme Court in Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51:

“The suit was commenced by the issuing of the distress warrant, the citation, and their return into court. The filing of the petition was simply the declaration of the cause of action in detail, so as to inform the defendants of the grounds of plaintiff’s claim.”

The proposition is too plain and simple for argument.

The affidavit was signed by Nola White, manager, for appellants, and he, no doubt, swore to it as certified by the notary public. If a manager is not an agent for the partnership, we fail to see how an agency could be established. There is no merit in the motion to quash.

The garnishment proceeding was a separate and distinct suit from the original suit, and the action of the court in quashing the garnishment proceedings was a final judgment. If not, there could be no final judgment in a garnishment suit.

The judgment is reversed, and the cause remanded.