author: TALIAPERRO, J.

text:
    LEVY et al. v. LUPTON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 16, 1913.)
    1. Appeal and Error (§ 547)—Record—Con-tents—Ruling on Plea of Privilege.
    A plea of privilege is in reality only a motion for a change of venue, and consequently, under the direct provisions of District Court rule 55 (142 S. W. xxi), the error in overruling such a plea is waived unless a bill of exceptions is taken thereto and properly presented.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    2. Courts (§ 122)—-Texas—District Court.
    The amount or value alleged in the plaintiff’s petition is the amount in controversy which fixes the jurisdiction of the court, and not the amount revealed by the evidence as being actually due.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 82, 136, 181, 182; Dee. Dig. § 122.*]
    3. Dismissal and Nonsuit (§ 65) — Objections—Jurisdiction.
    Where the plaintiff fraudulently exaggerates the amount due in his petition for the purpose of wrongfully conferring jurisdiction on the district court, the cause will be dismissed when that fact is properly brought to the knowledge of the court; but the objection in such case must be raised by special exception in due order of pleading, and the cause cannot be dismissed by the court on its own motion merely beause the evidence disclosed the amount due as being less than was alleged.
    [Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 160; Dec. Dig. § 65.]
    4. Sales (§ 181)—Actions—Evidence.
    In an action by the seller of corn, where the defendant claimed that when it arrived it was rotten and weevil-eaten, evidence that it was sound when loaded only five days before will warrant a finding that it was in good condition on arrival, in the absence of evidence showing that it was exposed to damaging conditions in transit; for jurors have the right to apply the test of common knowledge and experience to evidence submitted to them.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. § 181.]
    Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.
    Action by R. Lupton against Lippman Levy and others, in which Johanna Levy and another were impleaded upon the death of the named defendant. Prom a judgment for plaintiff, the impleaded defendants appeal.
    Affirmed.
    R. L. Ball and Chas. W. Trueheaxt, both of San Antonio, for appellants. J. I. Kerche-ville, of San Antonio, for appellees.

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

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

   TALIAPERRO, J.

This was an action by and upon the part of R. Lupton against the Galveston, Harrisburg & San Antonio Railway Company, the International & Great Northern Railroad Company, and the Texas Mexican Railway Company, all appellees herein, for damages in the sum of $508.94, alleging failure to deliver and wrongful conversion in joint conspiracy of a certain car of grain, shipped by said R. Lupton, from San Antonio, Tex., to Lippman Levy, San Diego, Tex. The Texas Mexican Railway Company, in answering, tendered into court the sum of $478.76, being the sum given them by Lippman Levy in payment of the draft attached to the bill of lading covering said shipment, and $204.35, being net proceeds of sale of said car of grain by said railway company — same having been left on its hands —and interpleaded Lippman Levy, and upon his death, Johanna Levy and A. Levy, as the legal representatives of Lippman Levy, and the real parties in interest. Johanna Levy and A. Levy, appellants, in answer to plaintiff’s petition and the interpleader of the defendant the Texas Mexican Railway Company, alleged that they were in fact the only successors of the rights of Lippman Levy in this controversy; that the grain shipped was not of the kind and quality agreed upon; that R. Lupton had given Lippman Levy authority to inspect the grain; and that Lippman Levy' had received the grain and paid the Texas Mexican Railway Company the invoice price of same, viz., $478.76, only for the purpose of inspecting same; and they further prayed for a recovery of said sum from the Texas Mexican Railway Company, and against the plaintiff, interest on same and all costs of suit. In a supplemental petition, the plaintiff, R. Lupton, besides controverting the allegations contained in the answer of Johanna Levy and A. Levy, set up a conspiracy between Lippman Levy and the Texas Mexican Railway Company to ■defeat him in his rights to the proceeds of said car of grain, and prayed that, if he was not entitled to recover against the railway companies, as originally prayed for, or against the Texas Mexican Railway Company for conversion, he might, in the alternative, have judgment against the appellants, - Johanna Levy and A. Levy, for the value of said grain, as per contract. The suit was filed on June 18, 1909. Lippman Levy, of whom appellants are the legal heirs and successors, was impleaded by one of the original defendants, the Texas Mexican Railway Company. Lippman Levy filed an answer to the merits on the 10th day of November, 1909. The Texas Mexican Railway Company filed. an answer to the merits on the 28th day of August, 1909. Johanna Levy and A. Levy, heirs of Lippman Levy, filed an answer to the merits on the 3d day of June, 1912. Appellants and the Texas Mexican Railway Company filed pleas of privilege on June 3, 1912, the day of the trial, and the appellants filed a plea of fraud on jurisdiction on June 4, 1912, the following day after the trial began. Plaintiff below was not given judgment against any of the railway companies for conversion, but the ease was decided upon an issue of contract between plaintiff below, and appellants on plaintiff’s alternative plea in a supplemental petition. Upon a trial before a jury, the case was submitted upon special issues, and, on the basis of the jury’s answers to these, judgment was rendered in favor of defendants Galveston, Harrisburg & San Antonio Railway Company and International & Great Northern Railroad Company, and in favor of the plaintiff, appellee, herein, R. Lupton, as against appellants, A. Levy and Johanna Levy, in the sum of $476.64, with interest from October 23, 1908, at the rate of 6 per cent, per an-num; and in favor of said A. Levy and Johanna Levy as against the Texas Mexican Railway Company in the sum of $478.76, and the further sum of $204.35, being the several amounts tendered into court by said railway company; and it was ordered that all costs should be taxed against the defendants A. Levy and Johanna Levy. Prom which judgment in favor of R. Lupton, and as against the said assessment of costs against them, appellants, Johanna Levy and A. Levy, prosecute this appeal.

Appellants’ first assignment of error complains that the court overruled their plea of privilege. Appellants reserved an exception to the order overruling this plea, but did not present a bill of exceptions to cover the objection, and the assignment cannot be considered. It is settled practice that a plea of privilege is in effect only a motion for a change of venue, and an order overruling such a plea is waived unless a bill of exceptions is taken thereto and properly presented. District Court rule 55 (142 S. W. xxi); American Warehouse Co. v. Ray, 150 S. W. 764, and cases there cited.

The second assignment of error is overruled. The suit was filed June 18, 1909. Defendant Texas Mexican Railway Company filed answer including general and special denial and presenting fully its defenses on August 28, 1909. Johanna and A. Levy, as heirs of Lippman Levy, filed their answer on the merits June 3, 1912, and on June 4, 1912, after' plaintiffs’ evidence was all in, those two defendants filed an unsworn plea or motion wherein they alleged that the court had not jurisdiction of the amount involved in the suit, and charged that the plaintiff had practiced a fraud upon the court by willfully and knowingly stating the damages in a sum greater than could, under any state of facts, be recovered. They sought to excuse the delay in filing this plea by alleging that the facts upon which it was based were revealed by the evidence of the plaintiff and had just come to' their knowledge. Appellants contend that the rule that the amount alleged in plaintiffs’ petition fixes the jurisdiction does not apply when the amount is fraudulently alleged in a greater sum than the plaintiff under any theory of the law is entitled to recover. That is a correct proposition of law, but it cannot be applied to this case.

It is well established in our practice that the amount or value alleged in the plaintiffs’ petition is the amount in controversy which fixes the jurisdiction of the court and not the amount revealed by the evidence as actually being due. Publishing Co. v. Hill, 36 Tex. Civ. App. 393, 81 S. W. 806, and cases cited; Watson v. Mirike, 25 Tex. Civ. App. 527, 61 S. W. 538. It is equally true that, where the amount involved is fraudulently stated in the petition at a greater amount than is known tó be due for the purpose of wrongfully conferring jurisdiction on the court, the case will be dismissed when that fact is properly brought to the knowledge of the court. The test is not whether the amount is correctly stated, but whether the allegation was made for the /purpose of deceiving and imposing upon the court. Railway v. Wilm, 9 Tex. Civ. App. 161, 28 S. W. 925. The objection in such case must be raised by special exception in due order of pleading. Where its determination depends upon a question of fact it should be submitted to the jury. Davis v. Railway, 12 Tex. Civ. App. 427, 34 S. W. 144, and eases there collated. This case does not, as contended by appellant, come within the rule which allows the court to dismiss upon its own motion a cause of which it has no jurisdiction. Such a condition arises only when the want of jurisdiction affirmatively appears upon the face of the pleading. This question was exhaustively discussed and the rule announced by the Supreme Court in Hoffman v. Building & Loan Ass’n, 85 Tex. 409, 22 S. W. 154. The court distinguishes this class of cases from those in which it is held that consent or acquiescence cannot confer jurisdiction over the subject-matter, and | says that the jurisdiction of the court cannot, be defeated when the case stated in the petition is within its jurisdiction unless it is made to appear, upon plea in due order, that the allegations were fraudulently made for the purpose of conferring jurisdiction. And that such fraud exists only when the jurisdictional averments are false and were known by the pleader to be false and were inserted for the sole purpose of deceiving. Davis v. Railway, supra, and cases there cited.

By their third assignment of error appellants contend that the verdict of the jury is unsupported by the evidence. The evidence was in direct conflict. Appellees’ witnesses testified that the corn was sound,, white, clean No. 2 corn when it was loaded in San Antonio; that it was started on October 17th, and arrived at San Diego on October 23 or 24, 1908. No evidence of the history of the corn in the interim was offered, and the jury had the right to assume that it was not exposed to any damaging conditions in, transit. Appellants’ witnesses testified that when the corn arrived it was rotting, weevil-eaten, cracked, and not marketable. The jury found that the corn arrived in a good condition. We cannot disturb this finding. Jurors have a right to apply to the evidence submitied to them the test of common knowledge and. experience. Any man capable of qualifying as a juror under our practice would know that corn shipped in a sound, clear, and whole condition would not, without intervening cause,, become cracked, rotten, and weevil-eaten in five days. If appellants desired to raise such an inference in the minds of the jury, they should have shown facts from which such an inference could have been rationally drawn.

The third assignment is overruled, and the judgment of the lower court is affirmed.


source: Caselaw Access Project

author: KEY, O. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ROGERS.
    (Court of Civil Appeals of Texas. Austin.
    March 19, 1913.)
    1. Appeal and Eeeob (§ 690) — Assignments op (Error — Admission op Evidence — Bill op Exceptions.
    An assignment of error complaining of the admission of evidence will be overruled, where the bill of exceptions does not show that the evidence was admitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.]
    2. Appeal and Eeeob (§ 1051) — Haemless ERROR — Erroneous Admission op Evidence.
    The error, if any, in admitting evidence of a fact established by other evidence, is not prejudicial.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dee. Dig. § 1051.]

      Appeal from Hays County Court; J. B. Wilson, Judge.
    Action by W. J. Rogers, Jr., against tlie Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 141 S. W. 1011.
    Fiset & McClendon and D. K. Woodward, Jr., all of Austin, for appellant. Will G. Barber and T. C. Johnson, Jr., both of San Marcos, for appellee.

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

   KEY, O. J.

This is a suit for damages on account of injuries to a shipment of hogs; and from a judgment in favor of the plaintiff the defendant has appealed.

The first assignment complains upon the alleged ground of the admission in evidence of certain testimony, which was objected to. The bill of exception does not show that the testimony referred to in the assignment was admitted in evidence; and it also appears that other testimony to the same effect was admitted without objection; and for these reasons the assignment is overruled.

The second and third assignments complain of the court’s charge wherein it submitted to the jury the questions of rough handling the stock and of delay in the shipment; the contention being that there was no evidence authorizing the submission of those issues to the jury. , We find in the statement of facts testimony tending to support the allegations in the plaintiff’s petition presenting those questions; and therefore hold that it was proper to submit them to the jury.

The fourth and last assignment inferentially, though not directly, challenges the verdict of the jury upon the theory that it was not supported by the testimony, and was excessive in amount. In view of the testimony contained in the statement of facts that assignment is overruled.

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

Affirmed.


author: RICE, J.

text:
    BARBIAN v. GRESHAM et al.
    (Court of Civil Appeals of Texas. Austin.
    March 19, 1913.)
    1. Venue (§ 77) — Plea oe Pbivilege —■ WAIVER.
    A party waives his plea of privilege to be sued in another county by subsequently filing and urging a cross-action asking for affirmative relief.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 59, 134, 13S; Dee. Dig. § 77.]
    2. Appeal and Error (§ 1001) — Findings— OONCLUSIVENESS.
    A finding of fact supported by evidence cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    Appeal from Runnels County Court; R. S. Griggs, Judge.
    Action by Robert J. Gresham against John Barbian and another, in which defendant named reconvened. From a judgment for plaintiff and against defendant on his plea in reconvention, defendant named appeals.
    Affirmed.
    Harry Tom King and D. M. Oldham, Jr., both of Abilene, for appellant. James P. Cogdell, of Winters, for appellees.

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

   RICE, J.

Appellee Gresham brought this suit against John Barbian and Geo. Onken in the justice’s court to recover the sum of $175.35 on an assigned account for balance claimed to have been due from Barbian to Onken for stone sold and delivered by On-ken to Barbian, and which claim was transferred to Gresham by Onken, who guaranteed the payment thereof at Winters, in Runnels county. Defendant Barbian, who lived in Taylor county, filed his plea of privilege to be sued in said county, alleging that said transfer was fraudulent, fictitious, without consideration, and -made for the purpose of conferring jurisdiction in Runnels county; he also filed a general denial and plea in re-convention against Onken, wherein he set up that he had overpaid Onken for said stone to the extent of $48, and prayed for judgment against Onken for said amount. There was a trial had in the justice’s court, resulting in a judgment in favor of Gresham, and an appeal prosecuted therefrom by Bar-bian to the county court, where a judgment was likewise rendered against Barbian on the account sued on for the sum of $173.25, and against Onken on his guaranty, and against said Barbian on his plea in recon-vention, from which this appeal is prosecuted.

It is urged on the part of appellant that the court erred in excluding evidence offered by him in support of his plea of privilege, and for the further purpose of showing that Gresham was not the owner of the cause of action sued upon, and was not a party at interest to the suit; but on the other hand,’ that Onken was the owner of said cause of action, etc. Appellee contends that in this there was no error, for the reason that where the record discloses, as it does here, that a defendant has filed a plea seeking affirmative relief, he is no longer entitled to insist upon his plea of privilege, for the, reason that he has thereby invoked the jurisdiction of the court in his behalf; and that therefore the court did not err in excluding this testimony.

We agree with this contention. It is well settled in this state that a party waives his plea of privilege who subsequently files and urges a cross-action asking affirmative relief. See Ramsey & Son v. Cook, 151 S. W. 346; Thorndale Mercantile Company v. Evens & Lee, 146 S. W. 1053; Kolp v. Shrader, 131 S. W. 860. We therefore overrule the assignment presenting this question.

The remaining assignment raises a question of fact, which was entirely for the jury to decide, and since there is evidence supporting their finding, this matter cannot be reviewed by us.

No reversible error is shown by the record, for which reason the judgment of the court below is affirmed.

Affirmed.


author: JENKINS, J.

text:
    MASON v. FIRST NAT. BANK OF PAINT ROCK.
    (Court of Civil Appeals of Texas. Austin.
    March 19, 1913.)
    CORPORATIONS (§ 99) — STOCK—SALE—PRICE— • Notes — Validity—“Monet Paid” — 1“Prop-erty.”
    Const, art. 12, § 6, provides that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious issue of stock or indebtedness shall be void. Held that, since a note given for the purchase price of corporate stock is neither “money paid” nor “property” within the meaning of such article, a note given for corporate stock without any other thing of value being paid therefor was void and uncollecti-ble.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 44P-446; Dec. Dig. § 99.

    For other definitions, see Words and Phrases, vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770.]
    Appeal from Runnels County Court; R. S. Griggs, Judge.
    Action by the First National Bank of Paint Rock against B. R. Mason. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    John I. Giiion and Smith & Wade, all of Ballinger, for appellant. Stone & Wade, of Ballinger, for appellee.

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

   JENKINS, J.

This is a suit on a promissory note, and to foreclose a lien on shares of stock in the South Heights Land & Loan Association of Paint Rock, a corporation. Appellant pleaded, among other things, that said note was executed for the stock in said corporation mentioned in appellee’s petition, and that no other thing of value was paid for said stock, and that the appellee took said note with full knowledge of said fact. If this be true, appellee stands in the shoes of said Land & Loan Association; and the issue presented is: Did said plea, if true, present a good defense to a suit by said corporation for the collection of said note? Appellee demurred to said answer, and said demurrer was sustained by the trial court. The action of the court in sustaining said demurrer is the only issue for our determination.

Section 6 of article 12 of the Constitution of this state reads as follows: “No corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void.” We are cited by appellees to the case of Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 1015. That was a suit by the receiver of an insolvent corporation against its stockholders to recover for the benefit of creditors the difference between the amount paid by such stockholders for their stock and the par value of said stock — a very different question from the one here presented. When a corporation represents that it has a certain amount of paid up capital stock, that means that such capital stock has been paid for in cash or its equivalent at its par value. The capital stock of a corporation is a trust fund for the benefit of those who deal with it, and stockholders who purchase stock at less than par value perpetrate a fraud on creditors who have no notice of such fact. A suit by the receiver of an insolvent corporation is not a suit by such corporation to enforce an unlawful contract which it has made with its stockholders, but is, in effect, a suit by creditors, and the stockholders who have not paid par for their stock will not be allowed to plead their own wrong in defense of such suit. In Mathis v. Pridham, supra, the court said: “This suit is for the benefit of creditors and asserts a cause of action which the company could not.” In Nenny v. Waddill, also cited by appellees, the court said: “While the company could not collect the unpaid balance, a different rule applies to creditors.” 6 Tex. Civ. App. 248, 25 S. W. 309. The language relied upon by appellee in Mathis v. Pridham, and Nenny v. Waddill, supra, is that “stock issued for a valid consideration, though less than its faCe value, is not ‘fictitious,’ ” and therefore appellee insists is not that character of stock declared by the Constitution to be void. It is not necessary to appellant’s defense herein that the stock for which the note was given should be “fictitious” or “void”; it is sufficient that it was issued contrary to law. The doing of an unlawful act is no consideration for a promise to pay, and courts will not enforce the payment of a debt growing out of an illegal transaction. Seeligson v. Lewis, 65 Tex. 216, 57 Am. Rep. 593; Carriage Co. v. Hatch, 19 Tex. Civ. App. 120, 47 S. W. 288; Wegner v. Biering, 65 Tex. 510; Davis v. Sittig, 65 Tex. 498. The sale of stock by a corporation is forbidden by the Constitution except for money paid or property actually received. A note is not money paid nor is it property within the meaning of said article of the Constitution. McCarthy v. Loan Co., 142 S. W. 96; Irrigation Co. v. Deutschmann, 102 Tex. 207, 105 S. W. 486, 114 S. W. 1174; Jefferson v. Hewitt, 103 Cal. 630, 37 Pac. 638.

For the error in sustaining appellee’s said exception, this cause is reversed and remanded.


text:
    FREEMAN v. HUFFMAN.
    (Court of Civil Appeals of Texas. Austin.
    March 26, 1913.
    Rehearing Denied April 30, 1913.)
    Appeal and Error (§ 1097) — :Decision on Prior Appeal — Law op Case.
    A decision of the Court of Appeals on a prior appeal is the law of the case in the trial court and on a subsequent appeal to the same court.
    [Ed. Note. — For other cases, s.ee Appeal and Error, Cent Dig. §§ 4358-4368, 4427; Dec. Dig. § 1097.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by J. K. Huffman against Thomas J. Freeman, as receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Doremus, Butler & Henderson, of Bryan, Fisher & Fisher, of Austin, and Wilson, Dab-ney & King, of Houston, for appellant. J. W. Garner, of Rockdale, T. S. Henderson, of Cameron, and J. L. Lockett, Jr., of Ft Worth, for appellee.

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

   JENKINS, J.

A statement of this case will be found in Freeman v. Huffman, 130 S. W. 195. The facts upon the second trial of this case were substantially the same as upon the first trial. We held in our former opinion that appellee was guilty of contributory negligence as matter of law, but that the issue of discovered peril was raised by the evidence. These holdings are conclusive as to the assignments in this case upon these issues. Moore v. Chamberlain, 152 S. W. 195; Franklin v. Cassaday, 62 Tex. 418; Railway Co. v. Smith, 24 S. W. 670; Lowell v. Ball, Hutchings & Co., 58 Tex. 566. In Franklin v. Cassaday, supra, the court said: “Recurring to the rule stare decisis relied on by the defendant in error, the general rule is thus stated by Wells in his treatise on Res Adjudicata and Stare Decisis, § 613: ‘It is a well-settled principle that the questions of law decided on appeal to a court of ultimate resort must govern the case in the same court and- the trial court through all subsequent stages of the proceedings, and will seldom be reconsidered or reversed, even if they appear to be erroneous.’ * * * The case of State v. Wygall, unreported (see 2 Tex. Law Rev. 138), being before the Supreme Court on second appeal, Chief Justice Willie said: ‘It is only in exceptional eases that we would overrule decisions previously made in the same case on a former appeal.’ ”

The trial court followed directions given in the opinion upon the former appeal in this case, and submitted only the issue of discovered peril. Upon this issue, in addition to the general charge, which was correct, the court, at the request of appellant, gave the following special charges: “In this case you are instructed that, even though you may find from the evidence that the plaintiff while in the car saw one of defendant’s brakemen pass, you will nevertheless return a verdict for the defendant, unless from the preponderance of the evidence you find that plaintiff was actually seen and discovered, and in a position of peril between the cars, by the defendant’s said b.rakeman, and that said brakeman realized that plaintiff could not remove himself before there was a movement of the train; and further find, under the facts and circumstances then and there existing, that said brakeman, after actually discovering the presence of plaintiff, had both opportunity and time to have averted the accident.” Also; “In this case you are instructed that the agents, servants, and employés in charge of and operating the train on which plaintiff alleges he was injured were not required to anticipate that he would undertake a passage over or between the cars, nor to discover his presence thereon, and unless you find affirmatively and from a preponderance of the evidence that the presence of the plaintiff J. K. Huffman between the cars was actually discovered by defendant’s agents and servants, and that said agents and servants or any of them, realized, or that a person of ordinary care similarly situated, would have realized that the plaintiff J. K. Huffman could not remove himself from between the cars before the same moved; and further find under the circumstances then and there existing said agents and servants, or any of them, after discovering the presence of the plaintiff, if they did discover him, could, by the exercise of ordinary care have prevented or stopped a movement of the train in time to have saved plaintiff from injury, you will return a verdict for the defendants.” The verdict of the jury in favor of appellee under these charges amounts to a special finding that the brakeman of appellant discovered the position of appellee between the cars in time to have prevented his injury with the means at hand, after realizing his dangerous position. While the evidence is conflicting as to these issues, it is sufficient to sustain the finding of the jury; for which reason, and for the further reason that we find no errors of record, the judgment of the trial court is affirmed.

Affirmed.


text:
    PARLIN & ORENDORFF IMPLEMENT CO. v. CLEMENTS.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.)
    1. Appeal and Error (§ 1068) — Harmless ERROR — ERRONEOUS INSTRUCTIONS.
    Where the judgment rendered in an action for damages is fully sustained by evidence, the error in submitting an improper element of damages is not prejudicial.
    [Ed. Note. — F'or other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    2. Execution (§ 472) — Wrongful Execution— Liability.
    An owner of property wrongfully levied on under execution, who refrains from using the property under the instructions of the officer making the levy, and who is thereby for a time deprived of its earning capacity, may recover the reasonable value of its use during and up to the time he was informed of the release of the levy.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1403, 1404; Dec. Dig. § 4(72.]
    3. Execution (§ 472) — Wrongful Execution— Liability.
    Where an officer wrongfully levied on two horses of defendant, and for five "Or six days defendant was not permitted to use the horses, and the reasonable value of their use was about $3 per day apiece,'a judgment for $8 damages was authorized.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1403, 1404; Dee. Dig. § 472.]
    Error to District Court, McLennan County; Marshall Surratt, Judge.
    Action by T. E. Clements against the Par-lin & Orendorff Implement Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    See, also, 54 Tex. Civ. App. 356, 117 S. W. 495.
    J. B. McNamara, of Waco, and Short & B’eild, of Dallas, for plaintiff in error. W. L. Eason, of Waco, for defendant in error.

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

   Findings of Fact.

JENKINS, J.

On May 2, 1900, in a suit of plaintiff in error against Wiley Jones and defendant in error, plaintiff in error obtained judgment in the justice’s court of precinct No. 1, Dallas county, against said Jones; but no recovery was had against defendant in error. This judgment has been kept alive by the issuance of executions. About July 1, 1907, plaintiff in error obtained an execution on said judgment, which recited that the same was rendered against both Jones and defendant in error, and placed said execution in the hands of a constable at Waco, Tex., who levied upon two head of horses belonging to defendant in error and his partner in the livery business, one Webb. Webb afterwards sold said livery business and all accounts due said business to defendant in error. Defendant in error informed the constable and plaintiff in error’s local attorney at Waco before said levy was made that there was a mistake in issuing said execution, and that said judgment in fact was not against him. The constable left said horses in possession of Webb, partner of defendant in error, taking his receipt for the same. Defendant in error went to Dallas, examined the judgment, and found that it in fact was not rendered against him, and so informed plaintiff in error, who, after having said judgment examined by their attorney, instructed the constable to release said levy. The horses were held under this levy five or six days, and the value of their use during such time was $3 per day each. Defendant in error recovered judgment for $100 damages, but remitted $92 of the same.

Opinion.

Defendant in error objects to the consideration of plaintiff in error’s assignments of error, for the reason that they do not comply with the rules for the government of this court. These objections might well have been sustained, but we have concluded to decide this case upon its merits.

The court submitted to the jury two elements of damage; one the value of the use of the horses whilst they were held under said levy, and the other expenses incurred by defendant in error in going to Dallas and getting said levy released. Plaintiff in error conténds that such expenses were not proximately caused by said levy, and are too remote to be the basis of recovery. If this be conceded, the judgment as it now stands, to wit, for $8, is fully sustained by the evidence as to the value of the use of the horses during the time they were held under said levy. “If [appellee] refrained from the use of the property under the instructions of the officer who made the levy, and thereby for a time was deprived of its earning capacity, he could, if there was evidence to justify the submission of that issue, recover the reasonable value of its use during and up to -the time that he was informed that the levy was released.” Low v. Ne Smith, 77 S. W. 32.

Appellee testified as follows: “I do not know just exactly how long those horses were from under my control and possession after the levy. It was several days; my best judgment of the number of days would be five or six. They left the horses there in Mr. Webb’s possession during that time, and Webb gave him a receipt for them. During that time I was not permitted to use them. The reasonable value of the use of the horses was about $3 per day apiece.” Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. ANDERSON COUNTY et al.
    (Supreme Court of Texas.
    May 7, 1913.)
    1. Railboads (§ 22) — Action — Venue — Pleading.
    A petition in a suit by a county and others against a railroad company to restrain it from moving its general offices, shops, etc., alleged a contract to maintain such establishments in complainant city and county m consideration of county bonds issued to the railroad company’s predecessor; that the offices and shops had been so maintained for several years; but that defendant, in disregard of such contract obligations, had undertaken to remove them to another county and prayed for an injunction. Helé that, since the railroad company -was entitled to be sued in the county of its domicile, which was the county where its general offices, etc., were lawfully located, which was the very question mboted on the merits, the venue was properly laid in the county where the petition alleged such offices were lawfully located.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.]
    2. Railroads (§ 194) — Purchase at Judicial Sale — Location op Oppices,' Etc.—
    Obligation op Purchaser.
    Rev. Civ. St. 1911, art. 6423, provides that railroad companies shall maintain their shops, roundhouses, and general offices at a place fixed by it in a contract supported by a valuable consideration, and section 6425 declares tbat any railroad chartered by the state or operating or controlling a line therein, which shall violate any of the provisions of the charter, shall forfeit-its charter, and it shall be the duty of the Attorney General to enforce such forfeiture. Held! that, where a railroad company, in consideration of certain railroad aid bonds issued by a county, contracted to maintain its general offices, roundhouses, shops, etc., in a certain city in the county, the observance of such contract was not a mere covenant but a continuing condition of the company’s right to corporate • existence and was enforceable against a purchaser of the railroad company’s property at a judicial sale, since such a purchaser takes the property and franchises freed only from the mere personal obligations of the former company.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig, §§ 643-655; Dec. Dig. § 194.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by Anderson County and others against the International & Great Northern Railway Company. Judgment for complainants affirmed by the Court of Civil Appeals (150 S. W. 239), and defendant brings error.
    Affirmed.
    Wilson, Dabney & King and Frank Andrews, all of Houston, and Williams & Sted-man, of Austin, for plaintiff in error. A. G. Greenwood, Thomas B. Greenwood, and Campbell, Sewell & Strickland, all of Palestine, for defendants in error.

      For other oases see same topic and section NUMBER1 in Dec. Dig, & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

Substantially stated, this case involves the right of a railroad company, incorporated under article 6625, R. S. 1911, for the purpose of owning and operating a railroad previously owned by another company whose franchises, privileges, and property had been acquired by the incorpo-rators through a judicial foreclosure sale, to change the location of the general offices, machine shops, and roundhouses of the road, made by the former company under contract for a valuable consideration and in a county which, in consideration of such location, had aided it by an issue of bonds, and accordingly subject to the provisions of article 6423, commonly known as the general office statute.

The suit was filed in the district court of Anderson county by Anderson county, the city of Palestine, and certain citizens of that city, suing for themselves and in a representative capacity, as plaintiffs. Its purpose was to require the defendant company, the plaintiff in error here, to maintain at Palestine, in Anderson county, its 'general offices, machine shops, and roundhouses, where the petition alleged it was required by law to maintain them. As the basis for the contention that the International & Great Northern Railroad Company was under this duty, and that it was likewise imposed upon the defendant in virtue of its succession to the ownership of the franchises, privileges, and railroad of that company, for the decision of the case it is sufficient to say that the petition alleged:

(1) The incorporation, under article 6625, on August 10, 1911, of the defendant for the purpose of owning and operating the railroad formerly owned and operated by the International & Great Northern Railroad Company, whose franchises, privileges, and property had been acquired by the incorpo-rators of the defendant through a judicial foreclosure of a mortgage lien.

(2) A contract with the citizens of Palestine, Tex., acting through Judge John H. Reagan, and with Anderson county, entered into in the year 1872, on the part of the Houston & Great Northern Railroad Company, to extend its line, then constructed from the city of Houston to the north boundary line of Houston county, so as to intersect at Palestine the line of railroad of the International Railroad Company, then in operation, extending from or near Hearne, in Robertson county, to Palestine, and to establish and forever maintain at Palestine its general offices, machine shops, and roundhouses, in consideration of the issuance and delivery to it by Anderson county of its interest-bearing bonds in the sum of $150,000, which, in reliance upon such contract, were duly voted by the electors of the county, issued, and delivered.

(3) The consolidation, in 1873, of the Houston & Great Northern Railroad Company and the International Railroad Company, under the name of the International & Great Northern Railroad Company, and the approval of such merger by special act of the Legislature in 1874, by which it was provided that all acts done in the name of either company should be equally binding upon the consolidated company.

(4) A contract made in the year 1875 by the International & Great Northern Railroad Company with the citizens of the city of Palestine to perform the contract of the Houston & Great Northern Railroad Company, above mentioned, by at once locating the general offices of the International & Great Northern Railroad Company and thereafter forever maintaining the general offices, machine shops, and roundhouses of the International & Great Northern Railroad Company at Palestine, in consideration of the bonds 'of Anderson county issued to the Houston. & Great Northern Railroad Company, and the construction at Palestine by its citizens, at their own expense, according to plans furnished by the International & Great Northern Railroad Company, of such' houses as might be demanded by it for the occupancy of its officers and employés at reasonable rentals, which contract had been performed by the citizens of Palestine, and whereby it was alleged that the International & Great Northern Railroad Company became bound to forever maintain the general offices, machine shops, and roundhouses of that railroad at Palestine.

(5) That the Houston & Great Northern Railroad Company, in part performance of its contract, promptly located its machine shops and roundhouses at Palestine, and there maintained them until the consolidation of that company and the International Railroad Company, and thereafter, to the time of the filing of the suit, the machine shops and roundhouses of the International & Great Northern Railroad had been continuously maintained at Palestine by the International & Great Northern Railroad Company and the defendant, in compliance with the contracts referred to. That in the year 1875 the International & Great Northern Railroad Company, in performance of its contract, located and established the general offices of the International & Great Northern Railroad at Palestine, and continuously there maintained them until September 1, 1911.

(6) That on or about September 1, 1911, the defendant, International & Great Northern Railroad Company, undertook to change the location of all its general offices, except in the case of two officials named, from Palestine to Houston, Tex., and to establish the most important general office of its traffic manager without the state in the city of New Orleans, La., causing certain named general officials and their subordinates to remove to the city of Houston and there establish so-called general offices for the performance of their duties, and the traffic manager and his subordinates to establish an office at New Orleans, and had declared its purpose to change the location of the general offices of the two officials whose offices had been left at Palestine, and to change the location of the machine shops and roundhouses of the railroad upon the institution of this suit or any suit of like nature, and would effect such changes of location unless restrained by injunction.

The petition contained further averments in respect to irreparable damage in a large amount suffered and to be suffered by the plaintiffs through the depreciation of their property situated at Palestine that had been acquired upon. the faith and credit of the contracts referred to, and disastrous consequences to the property and business interests of the city of Palestine, already suffered and that would further result if such changes in the location of the general offices, machine shops, and roundhouses of the railroad, made and contemplated by the defendant, were permitted, the lack of any adequate remedy at law, etc. Upon these allegations, in substance, and others to which it is not necessary to refer, on an ex parte hearing a temporary injunction was issued at chambers, restraining the defendant from changing the location of the machine shops and roundhouses of the road from Palestine, as well as the general offices of its superintendent of motive power and master mechanic, and requiring the return to Palestine of such of its general offices as it had moved to and established at Houston and New Orleans. On the appeal of the defendant from the order granting such temporary injunction, the honorable Court of Civil Appeals reformed it so as to omit that portion commanding the return of the defendant’s general offices to Palestine, and affirmed the order as reformed. (Civ. App.) 150 S. W. 239.

The questions presented for decision are: (1) Was the venue of the suit properly laid in Anderson county? (2) Are the obligations and duties that lay upon the International & Great Northern Railroad Company, in respect to the maintenance at Palestine of the general offices, machine shops, and roundhouses of the railroad, likewise enforceable against the plaintiff in error, a distinct corporation and the owner of the road through purchase at foreclosure sale? The plaintiff in error contends with respect to the first question that the suit is purely one for injunction, the venue of which is confined by the statute to the county of its domicile; and as the petition alleged that its 'general offices were, at the time of the institution of the suit, in fact established at Houston, in Harris county, and in effect alleged that such was the place named in its charter for their location, it is thereby disclosed that its domicile is in Harris county, where alone the suit may be maintained, notwithstanding the further allegation in the petition that such general offices are required by law to be maintained at Palestine, in Anderson county.

Our view is that granting, without determining, the premise of the plaintiff in error that this is essentially a suit for injunction, whose venue may he. laid only in the county of its domicile, still the decision of this question is inseparable from that of the main question in the case, inasmuch as the place of the company’s legal domicile is necessarily dependent upon its determination. By statute the public office of a railroad corporation in this state is regarded as its domicile, and, wherever the law requires such public or general offices to be maintained, is fixed by the same authority as the place of its domicile. Unlike a natural person, a corporation is not at liberty to change its domicile at will. Whether expressed in the right of charter designation or in a general statute, which contravenes such right, the law governs its location, and there is no power in a corporation to establish a domicile in fact which will prevail over that prescribed by law. The main question in this case is whether under the law the plaintiff in error was required to maintain its general offices at Palestine, in Anderson county, or possessed the right to establish them elsewhere by designation in its charter. The decision of that question, in accord with either view, determines the place of its legal domicile, and, accordingly, the venue of the suit, though the contention of the plaintiff in error as to its nature be conceded. It is manifest that the question of venue cannot, even under the theory advanced by the plaintiff in error, be otherwise rightfully determined. To say that the venue was properly in Harris county assumes that it had the Tight to change the location of its general offices from Palestine, establish them in Harris county, and thereby fix that as the county of its domicile, which is the fundamental question in the case. On the other hand, to say that the venue was properly in Anderson county involves the contrary assumption, and in like manner forecloses the main question. It is demonstrated, therefore, that under this theory of the case its nature is such as to make the question of venue and the main issue indivisible, and the determination of one conclusive of the other.

With the question of the location of the legal domicile of the plaintiff in error, and therefore the venue of the suit if regarded as one purely for injunction, thus in dispute and incapable of adjudication without a determination of the main issue, it results inevitably that the venue for the trial of such issue must be governed by the allegations of the petition, and was properly laid in Anderson county, as, according to the petition, that is the county of the legal domicile of tbie plaintiff in error under the allegation that it is required by law to there maintain its general offices. A suit in which the issue is, essentially, the location of the legal domicile of a corporation, according to which the venue is controlled, admits of no other rule for determining the venue. If in such a ease the allegations of the petition in respect to the location of the defendant’s domicile, in law, do not control, but must yield to aver-ments, which, at 'most, declare only the illegal establishment elsewhere of a domicile in fact, a plaintiff must be held remitted to a forum whose jurisdiction is inconsistent with his cause of action, involving, as it would here, the concession or surrender, at the outset, of the very issue tendered by the suit and upon which it is proposed to be maintained. The venue of this suit, if regarded as purely an injunction suit, lies in Harris county only in the event that is the county of the legal domicile of the plaintiff in error. According to the petition, however, its legal domicile is in Anderson county. The suit is grounded in a denial of its right to remove its general offices from that county and by their location establish a legal domicile elsewhere, which negatives the creation of a legal domicile in Harris county by their removal to Houston. If the suit had been filed in Harris county and the defendants in error should succeed upon the main issue, the result would serve to defeat the venue of that county. To sustain the venue of Harris county would necessarily involve the failure of their suit, whereas, if they prevail, the venue of Anderson county is established. In such a case, the plaintiff should be held entitled to invoke the venue that accords with the establishment of the allegations of his petition, rather than under the necessity of submitting his cause in a court whose jurisdiction depends upon their refutation. In the absence of fraudulent allegations, this is a right possessed through his tender of the issue which controls the venue and his assumption of the burden of it; it is not affected by the possibility that the venue may fail with the suit.

The case is not dissimilar in its analogy from that class of cases provided for in the venue statute, where, for illustration, the foundation of the suit is a crime or trespass in which the right of the plaintiff to maintain the venue in the county where the crime or trespass is alleged to have been committed, is so related to the main issue as to depend upon the establishment of its essential features, but is, nevertheless, a subsisting right. The rule that such cases permits the allegations of the petition to govern the venue has equal application here, since from the nature of the ease, if regarded as an injunction suit, the question of the legal domicile of the plaintiff in error is inseparable from the main issue to be determined.

Passing to the consideration of the main question, the petition alleges a state of facts that clearly imposed upon the International & Great Northern Railroad Company the obligation to maintain its general offices, machine shops, and roundhouses at Palestine, as in respect to the duty of that company in this regard the case made by the petition falls clearly within the provisions of article 6423, R. S. 1911, which is as follows;

“Art. 6423 (4367). Every railroad, company chartered by this state, or owning or .operating any line of railway within this state, shall keep and maintain permanently its general offices within the state of Texas at the place named in its charter for the locating of its general offices; and, if no certain place is named in its charter where its general offices shall be located and maintained, then said railroad company shall keep and maintain its general offices at such place within this state where it shall have contracted or agreed, or shall hereafter contract or agree, to locate its general office for a valuable consideration; and, if said railroad company has not contracted or agreed for a valuable consideration to maintain its general office at any certain place within this state, then such general offices shall be located and maintained at such place on its line in this state as said railroad companies may designate to be on its line of railway. And such railroads shall keep and maintain their machine shops and roundhouses, or either, at such place or placés as they may have contracted to keep them for a valuable consideration received; and, if said general offices and shops and roundhouses, or either, are located on the line of a railroad in a county which has aided said railroad by an issue of bonds in consideration of such location being made, then said location shall not be changed; and'this shall apply as well to a railroad that may have been consolidated with another as to those which have maintained their original organization.”

As above stated, the plaintiff in error is shown to be a distinct corporation from the International & Great Northern Railroad. Though regarded as the successor of that company, it is too well settled to admit of doubt that it would ordinarily stand relieved of all liabilities and obligations, not constituting a prior incumbrance upon the property it acquired, that were personal to that company. While the general rule has been qualified in this state by statutory provision, only to the extent of and as governed by such qualification did the plaintiff in error succeed to such liabilities and obligations of the former company. The question, therefore, as to whether it rests under the same duty as the International & Great Northern Jtailroad Company in respect to the maintenance at Palestine of its general offices, machine shops, and roundhouses is determined by the nature of that company’s obligation in the premises and the relation of the plaintiff in error to such obligation. It will be gained from the reading of article 6425 of the same chapter that the Legislature has gone to some pains to compel at the hands of railway companies the observance of the requirements of article 6423. It is as follows:

“Art. 6425 (4369). Each and every railroad company chartered by this ‘ state, or owning, operating or controlling any line of railroad within this state, which shall violate any of the provisions of this chapter shall forfeit the charter by which it operates its railroad in this state to the state of Texas; and it is hereby made the duty of the Attorney General of this state, upon the application of any interested party, or on his own motion, to proceed at once against every railroad company owning, operating or controlling any line of railway within this state by quo warranto to forfeit the charter of the railroad company so- offending, or violating any of the provisions of this law; [and every such railroad company] shall in addition to forfeiting the charter to that part of the railroad situated within this state be subject to a penalty of five thousand dollars for each and every day it violates any of the provisions of this chapter; said penalty to be recovered in the name of the state of Texas by a suit which shall be filed by the Attorney General in any court in this state having jurisdiction; and on the trial the court shall, if it finds that the railroad company has violated any of the provisions of this chapter, render judgment in the name of the state of Texas at the rate of the sum of five thousand dollars for each and every day said court shall find that said railroad company violated any of the provisions of this chapter. And any money recovered from any railroad company under the provisions of this law shall be paid over into the state treasury and become a part of the available public free school fund.”

In the provision for forfeiture of the charter of any railroad company that violates any article of the chapter, there is here expressed, in unmistakable terms, a plain limitation upon the corporate franchise of any company that, in the matter of the location of its general offices, machine shops, and roundhouses, is subject to the terms of article 6423. Obedience to its requirements is made a condition of the exercise of the company’s corporate powers and the enjoyment of its corporate privileges. The right of the corporation to subsist is dependent upon their observance, and its corporate franchise is therefore impressed with their obligation. The duty to which the company is subject under article 6423, being thus imposed upon its corporate franchise and made a condition of its exercise, has all the force and obtains just as fully as though its assumption were made a condition of its grant. It is a qualification of its franchise and inseparable from it, a burden which accompanies its enjoyment, to be borqe as a privilege of its use, and inheres in it with even more virtue than that of an original charter obligation because of the nature imparted to it by a general law. The charter duties and obligations of a railroad corporation, for whose violation its charter may be subjected to forfeiture, necessarily inhere in its franchise, because they operate as conditions upon which it may be exercised. For the stronger reason that a statute imports, duties or obligations imposed by a general law, the observance of which is by the same authority made a condition of the corporate existence, must be held to sustain to the corporate franchise a relation of the same continuing force. They are clearly not to be classed or regarded as merely of a private character. That they have been made the subject of general statutory provision distinguishes them from those duties and obligations which only affect individuals. The concern of the state in their performance, manifested by these enactments of its legislative department arid the penalty prescribed for their violation, necessarily impresses them with a public nature. A duty laid by law upon a railroad corporation, for whose breach its charter may be forfeited at the suit of the state, can hardly be considered as a private duty. • As its performance is by statute made a condition of the exercise of corporate rights and privileges which vitally affect the public, it is essentially for the benefit of the public. It goes to the essence of the contract between the corporation and the state, in virtue of which such rights and privileges, constituting the corporate franchise, are grant-, ed and enjoyed. It is founded upon considerations of public policy, as expressed in a general law of the state, and must have been intended to subserve a public interest. For these reasons we are clearly of the opinion that the duty to which, according to the petition, the International & Great Northern Railroad Company was subject, under article 6423, in respect to the maintenance of its general offices, machine shops, and roundhouses at Palestine, was a public duty.

It has been heretofore held by this court, and such we understand to be the law generally, that a purchaser of the corporate franchise and property of a railroad company under judicial process succeeds to all of its statutory and common-law duties to the public. Railway Co. v. Morris, 68 Tex. 49, 3 S. W. 457. In the opinion of Chief Justice Stayton in the case of Railway Company v. Newell, 73 Tex. 338, 11 S. W. 344, 15 Am. St. Rep. 788, is this language: “By the sale made by the sheriff there was a change made in the ownership of the Central & Montgomery Railroad, and of its franchise, but the corporate existence continues with franchise, neither enlarged nor restricted, as before. A railway company, in whomsoever may be its ownership, stands charged with every duty and obligation to the public imposed upon it by its charter and the'nature of its business, and from those it cannot escape without legislative permission so long as its corporate existence continues.”

In Acres v. Moyne, 59 Tex. 623, in reference to the operation of the road by such purchasers in the name of the former com-' pany, it is said: “The new company, by operation of the general laws of the state, becomes the successor of the sold-out corporation and occupies to the public, in the future, the same relation the sold-out company did in the past.”

These ‘decisions were rendered under former article 4260, brought forward as article 4549 in the Revision of 1895, and as amended by the act of 1910, now article 6624. That article empowered the purchasers, at execution or foreclosure sale, of a railroad and the corporate franchises of a railroad company to operate it in the same manner and to the same extent as though they were the original incorporators of the company, “under the same restrictions as are imposed by their charter and the general laws.” They were rendered before the adoption of the act of 1889, formerly article 4550 in the Revision of 1895, and as amended by the act of 1910, now article 6625, extending to such purchasers the privilege of incorporating a new company for the operation of the road. In respect to the statutory duties of the former company to the public, a new company, such as the plaintiff in error, organized under article 6625, stands in no more favorable position than that occupied by purchasers under former article 4260, since, as to such company and its ownership and operation of the railroad, it is provided by article 6625 that “by such purchase and organization no right shall be acquired in conflict with the present Constitution and laws, in any respect.” By this provision such duties are as clearly transferred to it as they were to a purchaser under former article 4260, and in relation to them these decisions control the question as plainly in one case as the other. In Elliott on Railroads, vol. 1, p. 753 (2d Ed.), the text upon this subject is as follows: “Statutes providing for the reorganization of insolvent corporations do not ordinarily impose any additional liabilities upon the purchasers, but simply confer upon them and such persons as they choose to associate with them the power 'to exist as a corporation and to own and manage the property which they have acquired as a railroad corporation. The new corporation organized thereunder does not become liable for any debts or liabilities of the old company for which the purchasers would not be liable by the terms of their purchase if incorporated. But it does generally become liable to perform the public duties imposed by law upon the old corporation.”

The case of New York & Greenwood Lake Railroad Company v. State, 50 N. J. Law, 303, 13 Atl. 1, involved the question of the obligation of a company, organized for the purpose of becoming the purchaser through a foreclosure sale of the franchises and railroad of another, to perform a charter duty of the latter to keep certain of its bridges in good repair. Under a statute imposing upon such purchasers no heavier burdens in respect to the charter obligations of the former company than article 6625 lays upon a company organized thereunder in respect to the statutory obligations to the public of a company to which it succeeds, the Supreme Court held as follows upon .the duty, under the act, of the purchasing company: “It proceeded to exercise all the powers with which the charter of the original company would invest them as purchasers, so far as the new company wished to exert those powers and privileges. While it occupies this attitude, it cannot ignore those duties to the public which are coupled with the enjoyment of the corporate privileges. So long as it holds this property and enjoys this franchise under a colorable title and under a corporate form which is the statutory outgrowth of that title, it must perform its duty to the public as an owner.”

The duty to which the International & Great Northern Railroad Company was subject under article 6423, according to the allegations of the petition, was not one common to all railroad companies in the state. The statute is not of that character, since the conditions which make it operative are those created only by the act of a railroad company. ■ It was a continuing public duty in relation to the maintenance of important instrumentalities connected with the operation of its railroad, which it in effect imposed upon itself in virtue of its own acts. Being of such nature, the plaintiff in error could not succeed to the ownership of the railroad and the privilege of operating it without at the same time succeeding to the duty that similar rights imposed upon the former company. The duty was more than the personal obligation of that company. It was also of a different character from the ordinary statutory duties that apply to all railroad companies. It affected its right to operate the road. It was not only a limitation upon the continuance of its corporate powers, but a limitation that pertained to the use and enjoyment of essential parts of the railroad property. It qualified their use and enjoyment by an abridgment of the important right of location, which otherwise .the company would have possessed as an incident of ownership, and impressed their use with an obligation to maintain the location provided by the statute. As it inhered in the corporate franchise exercised by the former company, it necessarily subsists with the franchise in the hands of its present owner. The transfer to such owner of the right to own and operate the road also transferred the obligation attached to such right; and the enjoyment of the right must be in observance of the obligation.

It must be remembered that the relation of the plaintiff in error to this railroad is not that sustained by a company to a railroad which has been constructed under its own charter, or which is unaffected by previous statutory or charter obligations. Its corporate life issues, from the ownership of the franchise and property of a former railroad company, since article 6625 conferred upon its incorporators the right of incorporation only in virtue of such ownership. The rights which it possesses and is permitted to exercise in respect to the railroad are founded upon that franchise. It sustains its right of ownership of the property. The plaintiff in error could not succeed to the property without it, since neither is alienable except by statutory consent, and under our statutes one may not be acquired without the other. Sustaining this vital and inseparable relation to the railroad and the title by which it is now held, the plaintiff in error, in our opinion, could not acquire the franchise and may not exercise the rights in the property which result from its ownership, freed from the limitations to which it was subject in the hands of the former company. The obligation to which that company was subject, according to the petition, in respect to the location of its general offices, machine shops, and roundhouses, was clearly a burden upon the franchise, with which it is likewise charged in the hands of the plaintiff in error.

The case is stronger in our opinion than that of Union Pacific R. R. Co. v. Mason City & Port Dodge R. R. Co., 199 U. S. 160, 26 Sup. Ct. 19, 50 L. Ed. 134, in which, in an opinion rendered by Judge Brewer, it was held that a railroad company, as the purchaser of the corporate privileges and property of another under foreclosure sale, took them subject to a statute enacted in government of the former company’s use of a bridge. We quote from the opinion as follows : “The final question is this: Is the status of the present Union Pacific Railroad Company, the appellant, so different from that of the company to which it is a successor as to render inapplicable the decision in the Rock Island Case and to nullify the requirements of the act of 1871? * * * We shall not stop to inquire whether this foreclosure and sale was anything more than a reorganization under the form of a judicial proceeding, nor whether, if it were in all respects a bona fide sale to an independent third party, such sale took the property out of the jurisdiction of Congress and prevented that body from further legislation in aid of the purpose of the act, ‘namely, to promote the public interest and welfare.’ The question before us is whether an amendment to the act, purely administrative in the character of the burdens imposed, aimed to promote the public interest and welfare, enacted- while the title to the property remained in the original company, a corporation chartered by Congress, which preserves intact all the pecuniary rights of the com-' pany, and whose privileges are accepted and acted upon by the company, is denuded of vitality by a sale to a new company under foreclosure of a mortgage executed prior to such legislation. That question must he answered in the negative. * * * The act giving authority for a large issue of bonds, thereby insuring the immediate construction of the bridge, was accompanied by a proviso that, upon reasonable compensation, the use of the bridge should be accorded to other companies. Availing itself of the privileges conferred, the company accepted the amendment in its entirety and is bound by its terms as fully as though it had embodied them in a contract. So long as the full facilities of the Union Pacific Company were not interfered with thereby, and a reasonable compensation was paid therefor, it cannot in any just sense be held that its rights were not duly regarded. . And it cannot be tolerated that a private individual or a state corporation can, by the purchase at a judicial sale of the property, strike down all the legislation of Congress passed subsequently to the mortgage for the promotion of the public interests. We cannot assent to the contention that the present owner of the property holds it free from obedience to all such legislation. Now, as before the foreclosure and sale, the public interests are to be regarded, and not simply private purposes, wishes, or prejudices.”

There is present in this ease not only a plain statutory duty in respect to essential instrumentalities of the railroad acquired by the new company, but an obligation that inhered in and attached to the franchise of the former company. If it be argued that the statute in that case created an easement in the bridge which ran with the property, it cannot be denied, we think, that the effect of our statute, in the requirement that the location therein provided of the general offices, machine shops, and roundhouses of a railroad company, subject to its operation, should be maintained, is to impress them as property or instrumentalities necessary to the use of property, with a character of servitude for the benefit of the particular community, from which they are not exempt in the hands of a purchasing company. The case has been presented with exceptional ability and has commanded our earnest consideration. We are fully mindful of the importance of the questions. For reasons that to our minds are conclusive, they should be resolved as we have indicated.

The judgment of the honorable Court of Civil Appeals is accordingly affirmed.


author: HALL, J.

text:
    GARRETT et al. v. GRISHAM.
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1913.
    Rehearing Denied May 3, 1913.)
    1.Evidence (§ 332) — Records—Supersedeas Bond.
    Sayles’ Ann. Civ. St. 1897, art. 2318, provides that when any pleading shall be founded on any instrument in writing, charged to have been executed by the other party, such instrument shall be received in evidence without proof of its execution, unless its execution be denied under oath. Held, that in the absence of an affidavit denying the execution of a su-persedeas bond filed in another county, in an. action for breach thereof, the original bond was admissible in evidence, and plaintiff was not required to prove it by a certified copy under article 2306.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1237-1246; Dec. Dig. § 332.]
    2. Appeal and Erbor (§ 931) — Findings— Review.
    Where, in an action for damages for withholding certain land, the court, under admissible evidence, might have found the value of the use of the land to have been much more than the amount he did find, the appellate court would not presume that he based his finding on certain evidence of damage which was improper.
    [Ed. Note. — For other eases, see Appeal and Error. Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.]
    3. Payment (§ 59) — Plea—Necessity.
    Payment is an affirmative defense, and must be specially pleaded and proved.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 143^ ; Dec. Dig. § 59.]
    Appeal from District Court, Fisher County; L. B. Allen, Judge.
    Action by R. N. Grisham against H. N. Garrett and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Charles Gibbs and W. E. Allen, both of Midland, for ¿ppellants. H. C. Hughes, of Sweetwater, for appellee.

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

   HALL, J.

J. p. Robertson, as plaintiff, recovered a judgment in the district court of Martin county in October, 1907, against I. R. Williams, J. W. Williams, and T. J. Barnes as defendants for the title and possession of two sections of land located in said county. From this judgment the defendant T. J. Bames perfected an appeal by filing in due time a supersedeas bond with H. N. Garrett and S. P. Carroll as sureties. The judgment was affirmed by the Court of Civil Appeals for the Second District. No motion for rehearing was filed and no application for writ .of error made. During the pendency of the appeal T. J. Barnes continued to use and occupy the two sections of land. In January, 1912, J. Robertson, plaintiff in the former suit, and the obligee in said supersedeas bond, assigned his interest therein and claim for damages thereunder to R. N. Grisham, appellee in this appeal, and on February 1, 1912, Gris-ham instituted this suit in the district court of Fisher county as assignee against the appellees as sureties on said supersedeas bond for damages alleged to have accrued to his assignor J. P. Robertson on account of the possession by said Barnes of the land in question during, the pendency of the appeal. Barnes was alleged to be a nonresident of the state of Texas, and notoriously insolvent, and was not made a party. A trial before the court without a jury resulted in a judgment against appellants in the sum of $300. The trial judge filed findings of fact and conclusions of law, and found that the rental value of the two sections of land was $100, per section per year. Plaintiff’s allegation was that he was deprived of the possession during the pendency of the appeal for a term of 18 months.

The first error assigned is to the admission in evidence of the original super-sedeas bond, upon which the suit was based, and appellant insists that it being an original document, filed among the court papers in a cause pending in another county, the original was not admissible in evidence in this ■case, but that a certified copy under article 2306, Sayles’ Civil Statutes, alone was admissible. There is no contention that the instrument introduced in evidence was not the original supersedeas bond. In support of their contention appellants cite the cases of Hardin v. Blackshear, 60 Tex. 132, and Wallis v. Beauchamp, 15 Tex. 303. In the Hardin v. Blackshear Case, Associate Justice West said: “Where the original. papers in a judicial proceeding sought to be introduced are a part of the official records of the court where the case is being tried, or are brought into open court from the county court of the same county, in the custody of the clerk of that court, it has been held under such circumstances such original papers are admissible in evidence. * * * Where, however, the supposed original papers of other and distant courts of record of this state’ are found in the hands of private individuals and from this source are offered in evidence, a different question is presented. ’‘Necessity,’ says Chief Justice Hemphill, ‘requires the records of other courts to be proved by transcripts. The records themselves must remain in the proper office and in the custody of their keeper and transcripts or copies only can be used for their proof .elsewhere.’ ” 15 Tex. 305. We do not construe this decision to mean that an original paper from the files of the court of another county,, if properly proven, is not under any circumstances admissible. It is also said in the case above quoted (Hardin v. Blackshear): “The record does not explain how or in what manner the original papers and records of the district court of Leon county came to be produced and offered in evidence in the district court of Anderson county. The clerk of the district court of Leon county is the proper and lawful custodian of those records. There is no pretense that he was present in court or had them in his official custody when they were, offered in evidence.” The matter seems to resolve itself into one purely of proof of execution of the instrument introduced. We know of no statute, and have been cited to none, which would prohibit the judge of one county or even the clerk of the court in one county from permitting the temporary withdrawal of any paper upon file in any case pending therein; and, so far as we know, the supersedeas bond in this suit may have been obtained under just such conditions. If no proof of its execution had been made, the two cases cited by appellant would apply, but in this case the bond itself was tfie basis of the plaintiff’s action, and article 2318, Sayles’ Civil Statutes, provides: “When any petition, answer or other pleading shall be founded in whole or in part, on any instrument or note in writing, charged to have been executed by the other party or by his authority, and not alleged therein to be lost or destroyed, such instrument or note in writing shall .be received as evidence, without the necessity of proving its execution, unless the party by whom or by whose authority such instrument or note in writing is charged to have been executed, shall file his affidavit in writing denying the execution thereof,” etc. There was no sworn denial of the execution of the supersedeas bond sued on in this case filed by the defendants or either of them in the trial court, and we think the original bond was for that reason clearly admissible in evidence.'

Appellant’s second assignment of error is: “The court erred-in permitting the witness J. P. Robertson to testify that witness had been offered $100 bonus per section per year on the lands in question and other lands”—and the third assignment is: “The court erred in finding that the rental value of said two sections of land was $100 per section per annum, during the time the original case was pending on appeal.” Contention is made under these two assignments that there is no evidence to support the court’s judgment in the sum of $300, One witness testified that the rental value of the land was 75 cents per acre per annum. Three other witnesses placed such value at from five to eight cents per acre. Appellant insists that we must presume that the court considered the illegal testimony complained of in the second assignment of error in arriving at the amount of his finding. The court was the judge of the credibility of the witnesses and the weight to be given to their testimony, and, since he might have under the evidence found a much greater sum than $300 we cannot assent to such contention.

By the fourth' assignment appellants contend that there was no evidence that the indebtedness sued for had not been paid. Payment is an affirmative defense, and must be pleaded specifically and proved. Bannister v. Wallace, 14 Tex. Civ. App. 452, 37 S. W. 250.

Finding no reversible error in the record, the judgment of the trial court is affirmed.