text:
    TOOLE et al. v. MOORE et al. MOORE et al. v. AMERICAN LUMBER CO.
    (No. 265.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 30, 1918.
    Rehearing Denied May 15, 1918.)
    1. Trial <@=>139(1) — Instruction of Verdict.
    The court cannot peremptorily instruct a verdict on any issue as against a party to a suit, where there is some evidence in his favor on the issue involved.
    2. Trespass to Tar Title <@=>41(4) — Identity op Grantee — Sufficiency of Evidence.
    In trespass to try title to and to recover possession of a league of land granted by the Mexican government to one John Moore, evidence held insufficient to warrant finding that the John Moore under whom plaintiffs claimed was the original grantee of the land.
    3. Appeal and Error <®=>1003 — Review-Finding on Conflicting Evidence.
    The Courts of Civil Appeals are not authorized to disturb a jury’s verdict or finding on an issue of fact which has reasonable support in the evidence, though apparently against a preponderance of the evidence.
    4. Appeal and Error <@=v1003 — Review-Verdict — Setting Aside.
    Where the evidence relating to a jury’s verdict on a question of 'fact so clearly and overwhelmingly preponderates against the verdict as to make it clear to the appellate court that such verdict was wrong, it should be disregarded and set aside.
    5. Appeal and Error <@=>212 — Objection to Peremptory Instruction.
    Where defendant in error presented in writing a request to the trial court for a peremptory instruction, which was given without objection from plaintiffs in error, plaintiffs in error cannot complain of the court’s action in giving the instruction.

      Error from District Court, Sabine County; A. E. Davis, Judge.
    'Suit by M. G. Moore and W. H. Ratliff against tbe American Lumber Company, J. O. Toole, W. P. Goodrich, and others. To review judgment for plaintiffs as against all the defendants, except as against the American Lumber Company, for which judgment was entered, and to review the judgment for the company, defendants, except the American Lumber Company, and plaintiffs bring error.
    Reversed and remanded in part, and affirmed in part.
    W. H. Ratliff and K. R. Craig, both of Dallas, Carter & Walker, of Center, and W. R. Cousins, of Hemphill, for plaintiffs in error. J. W. Minton and W. P. Goodrich', both of Hemphill, D. M. Short & Son, of Center, W. D. Gordon and P. J. & C. T. Duff, all of Beaumont, Hamilton & Hamilton, of Hemphill, and Terry, Cavin & Mills, of Galveston, for defendants in error.
   HIGHTOWER, C. J.

This was a suit in trespass to try title to and recover possession of a league of land granted by the Mexican government to John Moore on September 30, 1S35, and situated on the waters of the Sabine river in Sabine county, Tex. The plaintiffs in the suit were M. G. Moore and W. I-I. Ratliff, and the defendants were American Lumber Company, J. O. Toole, W. P. Goodrich, H. B. Arnold, Harry Youngblood and his wife, AVillie Youngblood, and R. L. Weathers-by and his wife, Sidney Ann Weathersby.

All defendants were duly served and answered. The defendant Toole disclaimed as to 500 acres in the northeast corner of the league, and also as to 1,107 acres in the south portion, and as to the remainder pleaded “not guilty.” Defendants Weathersby disclaimed as to all the league except a tract of 500 acres in the northeast corner, and as to this pleaded “not guilty,” and also interposed the several statutes of limitation. Defendants Goodrich and Arnold disclaimed as to all except a one-twentieth interest in the 500 acres claimed by the Weathersbys, and pleaded “not guilty” as to the remainder. Defendant American Lumber Company answered by plea of not guilty, and also claimed the entire league under the statutes, of limitation of three, five, and ten years.

The case was submitted to the jury upon special issues, as between all the parties except American Lumber Company, in whose favor the trial court peremptorily instructed the' jury to return a verdict for 1,107 acres of the league, described by specific metes and bounds. The jury returned its verdict on the special issues submitted, and also its verdict" in favor of the American Lumber Company, as peremptorily instructed by the court, and upon this verdict judgment final was entered in favor of the plaintiffs, M. G. Moore and W. H. Ratliff, as against all the defendants for all the land sued for, save and except as to the American Lumber Company, in whose favor judgment was entered for 1,107 acres of the league specifically described.

All the defendants, with the exception of American Lumber Company, in due time filed motions for a new trial, which were overruled, and the action of the trial court in that connection duly excepted to. The plaintiffs, Moore and Ratliff, also excepted to the court’s judgment in denying them a recovery against the American Lumber Company, and plaintiffs filed a motion to set aside the directed verdict in favor of American Lumber Company and render judgment in their favor against that defendant on the verdict of the jury on the special issues submitted, or, failing in that, for a new trial as to the American Lumber Company. This motion by the plaintiffs was also overruled, to which action they excepted and the case has been brought here on two separate writs of error; J. O. Toole and the other defendants, with the exception of American Lumber Company, being plaintiffs in error in one writ, as against M. G. Moore and W. I-I. Ratliff, defendants in error, and M. G. Moore and W. I-I. Ratliff being plaintiffs in error in the other writ, as against American Lumber Company, the defendant in error. We shall first dispose of the writ of error prosecuted by J. O. Toole and others against M. G. Moore and others.

It appears from the record in this case that the league of land here sued for was granted by the Mexican government to John Moore on the 30th day of September, 1835, and it also appears from the record that on the 3d day of October, 1835, “John More,” claiming to be the owner of this league of land and the original grantee thereof, executed a deed conveying the same to John James Porter and J. S. Lane. Upon this deed appear the names of the following persons as witnesses to its execution: William Richardson, Wm. J. Logan, S. J. Peck, John M. Dorye, and Thos. J. Rusk. This deed was proven for record at Nacogdoches before Chas. S. Taylor, chief clerk and ex officio notary public, by Thos. J. Rusk, one of the witnesses to said deed, on July 30, 1838, and was recorded in Sabine county on May 8, 1838. All the defendants in this case claim and deraign title by regular chain under this deed. It was the contention, however, of the plaintiffs below that this deed to Porter and Lane from the purported original grantee was a forgery, and this contention was one of the two main issues submitted for the consideration of the jury on the trial, and the jury found, in effect, that this deed under which the defendants claimed title to this league of land was a forgery, and this finding is made the basis of one of the main assignments of error found in the brief of plaintiffs in error J. O. Toole et al.

The record in this case is quite voluminous, and has been long and carefully considered by this court, and in some respects it pre-seats most remarkable features. The plaintiffs in this case M. G. Moore and W. H. Ratliff, claimed to have been connected with the title to this league of land for the first time on the 7th day of July, 1913, in this way: It appears from the record in this case that on said last-named date a man by the name of John Moore, residing in Hardeman county, Tex., executed to the plaintiffs, Moore and Ratliff, two deeds, by which he conveyed to them this league of land, and it is claimed by said plaintiffs, M. G. Moore and W..I-I. Ratliff, that this Hardeman county John Moore, their vendor, was the same man to whom this league of land was originally granted by the Mexican government in 1835, and that he had never theretofore conveyed the same, and that they acquired title thereto by these deeds of July 7, 1913.

This man, John Moore, of Hardeman county, under whom these defendants in- error, Moore and Ratliff, claim title, was'present at the trial of this case, and testified as a witness, and the first main issue submitted by the court to the jury in this case was as follows:

“Is John Moore, the witness who testified in this case, the same John Moore to whom a league of land on the Sabine river, in Sabine county, Tex., was granted on September 30, A. D. 1835? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to bo.”

To this question the jury answered “Yes.” The other material question submitted for the jury’s consideration was as follows:

“If you answer question No. 1 ‘Yes,’ then you will answer the following question, but if you answer question No. 1 ‘No,’ then you need not answer any other questions submitted to you. Did John Moore, the witness who-testified in this case, convey the land sued for to James J. Porter and John S. Lane on the 3d day of October, A. D. 1835? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered “No.” Thus it will be. seen that the jury found that the John Moore of Hardeman’ county, who conveyed this league of land on July 7, 1913, to these defendants in error, was the original grantee of said land, and that he had not executed the deed to Porter and Lane, through and under which these plaintiffs in error claim title, which was, in effect, a finding by the jury that the purported deed from the original grantee to Porter and Lane was a forgery.

We shall now refer to the facts found in the record which are claimed by these defendants in error to be sufficient to support the jury’s findings on these two issues. As stated above, the Hardeman county John Moore whom we will hereinafter refer to as John Moore, was present at the’ trial and testified in this case. His testimony is found in the record to cover nearly 50 pages, and, of course, it would be -impracticable for this court to here detail all he said, but we shall make what we conceive to be a fair statement, in substance, of the material facts to which he purported to testify. According to this witness John Moore, he was born in Hawkins county, Tenn., and was one of a family of nine children. He said that in 1834 he, in company with his brother William, who he said was two years older than himself, and also in company with Porg Mann and Jack Carmack and perhaps several others, came from Tennessee to Texas for the purpose of acquiring land here as colonists under the Mexican government, and that their objective point in Texas, on leaving Tennessee, was Nacogdoches, and that he and his companions made their way as directly as they could to Nacogdoches upon reaching Texas. He said that after being in Texas a little while Jack Carmack began to be dissatisfied, and wanted to go back to Tennessee, and that he was persuaded .by Jack Carmack to return with him to Tennessee some time during the same year. He further stated that shortly after returning to Tennessee with Jack Carmack the latter received a letter from some of their companions at Nacogdoches, telling him to come back to Texas at once, and to bring the witness John Moore with him. He stated that acting upon this letter he and Jack Carmack, some time during the spring of 1835, returned to Texas and back to Nacog-doches, and that he (the witness) made application to the Mexican government shortly after his return, as a colonist, for land. He further stated that his brother William and Porg Mann, who was a cousin of his mother, and who had remained at Nacogdoch-es since first arriving there, were his advisors, and as such attended to the matter of acquiring the land for which he was an applicant; that he, himself, had so little knowledge pertaining to matters of that kind, he depended upon his brother William and Porg Mann entirely to secure for him the land he wanted. He further stated that after returning to Nacogdoches in 1835 he met and became acquainted with Arthur Henrie and David Brown, who were surveyors at Nac-ogdoches at that time, and who appeared to have a great deal of business to attend to in the way of surveying lands for colonists, etc.; and he stated that after formal application by him for land the same was granted, and that his title papers were delivered to and taken charge of by his brother William, but that he himself never saw the title papers, and did not know of his own knowledge what they contained, but that his brother William told him that his title papers were all right, and that he had secured his land. He further testified that on one occasion, when he and others of his companions, perhaps his brother William and Porg Mann, were riding along on the Sabine river in Sabine county, David Brown, who was one of the main surveyors in the vicinity of Nacogdoches, made a remark to this effect, “There’s John’s land,” and at the same time David Brown looked toward the witness, meaning John Moore.

This witness further testified that he thereafter (though the record is indefinite as to time, but not later than some time in 1837), again returned to Tennessee, and that he never again returned to Texas until 1850. He further testified that his brother William afterwards went to the war between the United States and Mexico, and remained in the war about one year, and returned to Tennessee, and that he and his brother again made preparations to return to Texas, and had about completed all arrangements to do so when his brother William was again prevailed upon to rejoin the army and return to Mexico. He stated that while packing their trunks, etc., to return to Texas, his brother William showed him a bundle of papers, and at the same time remarked, “Here are our Texas land papers,” and that this bundle of papers was placed in a trunk but that the witness did not examine them, and did not know just what papers were in the bundle, but only knew what his brother stated about them. He further stated that his brother William, on deciding to return to the army, persuaded him also to join the army, and that he, in fact, joined the army, and in company with his brother William left Tennessee, and entered the war between the United States and Mexico. He further stated that his brother William was killed in the war, and that he himself returned from the war to Tennessee, and was discharged at Memphis in 1848. He further stated that soon thereafter other acquaintances and companions of his in Tennessee became anxious to come to Texas, and that he, along with them, about 1850, started back to Texas, traveling by boat, and that he had with him on the boat two trunks, a grip, etc., and that one of these trunks contained his title papers to his Texas lands. He further stated that when his boat was within about 40 miles of New Orleans on the Mississippi river, it came in contact with another boat, and that the boat on which he was traveling was thereby caused to sink so rapidly that he did not have time to save all of his baggage, and that the trunk'containing his title papers to his Texas lands was lost and sunk in the Mississippi river, and that he never thereafter saw or heard of his title papers. He further testified that, notwithstanding this calamity, he continued his voyage on to Texas, and finally reached Lockhart, Tex., some time in the latter part of 1850, or first part of 1851. He further testified that in 1854 he was married to a Miss Elliott at Lockhart, Tex., and that this wife lived a number of years, and that there was born to this union in all nine children; that this wife died some time after the Civil War, about 1868 perhaps, and that shortly thereafter he married the second time.

■According to the record, as shown by this witness’ own testimony, he lived in Caldwell, Milam, and Williamson counties from 1850, or 1851, until very recent years, and that during all of this long period of time he lived within a distance of 30 or 35 miles of Austin, where the land office of this slate has been continuously situated and kept, and according to his own testimony the only effort even amounting to as much as the writing of a letter to make any inquiry or lay any claim to the land here in controversy, or any other land in Texas, was in 1853, at which time he says he took a notion to go to Austin, and see what he could find in the land office there relative to his land. He stated that when he got to Austin on that occasion he found the town infested with rangers, many of whom seemed to be drunk and carousing, but that he made inquiry for the land office, and finally went to the building to which he was directed, and at the front door met a “big man,” who was armed and seemed to be drunk, and to whom he made some inquiry about the land office, and stated that he wanted to see something about his “land papers.” He said that this big man spoke to him very abruptly, and told him that the land office had been burned, and that he did not have any land papers there, and that seeing that the man was drunk and that he might have trouble with him, which he did not want, he immediately left Austin and returned to Lockhart. From that day on until 1909, the record in this case shows, without contradiction, that this man John Moore, of Hardeman county, under whom these defendants in error claim this league of land, never made a single effort of any character whatever to ascertain any fact concerning this league of land, not even so much as to write a letter, notwithstanding the fact that he resided such great length of time within a few miles of the capital of the state, where the land office is situated, in the archives of which was to be seen, upon mere request, perfect and undis-putable evidence of his title to this league of land, if, in fact, such title was ever in him. But he attempts to account for this absolute and long-continued nonclaim because of the 'fact, as he says, that he had lost his title papers in the Mississippi river, as the principal reason, and also because he understood that the land was of very, little value.

As a matter of fact, as disclosed by the record in this case, without contradiction, the first time that this Hardeman county John Moore conceived the idea of asserting any claim of title to the land in controversy was in 1909, and his claim arose in this way: He was on a visit to a granddaughter in Runnels county, Tex., and while there met some old soldier, and together they were discussing the hardships, etc., which they had undergone as soldiers and prisoners of war, and this granddaughter overheard this conversation and became interested, and told this John Moore that she wanted to write his history and put it in the paper, and she proceeded to do this, and published her piece in the Dallas News. John Moore testified, if we mistake not, that on the very next day after this history was published in the Dallas News he began to receive letters from persons in different portions of the state who were desirous of taking up with him land matters, and from such inquiries he was led soon thereafter to make a visit to Sabine county, and it appears from the record that upon reaching Sabine county and consulting with certain persons there with reference to abstracts, etc., he first laid claim to a league of land that was granted by the Mexican government in 1835 to a man named John Moore, but this league of land was out in the piney woods on what is known as Bear creek, and was nowhere near the vicinity of the league of land in controversy situated on the Sabine river, and which, he says, in effect, was pointed out as his land by David Brown in 1835. The record is not definite as to how long he continued to lay claim to this piney woods league of land, but it does appear that he sold his claim thereto, or rather quitclaimed title thereto, and then actively prosecuted his claim for the league in controversy.

This Hardeman county John Moore stated, while a witness on the stand, that he did not know his exact age, and' could not even tell the year in which he was born, but says that he was a very young man when he came to Texas, and that this league of land was granted to him as a colonist, and that he never conveyed the same to Porter and Lane, or to any one else.

On the trial of this case below, the defendants introduced in evidence' an application for a pension made to the Pension Department of the United States by this John Moore of Hardeman county, by which he claimed to be entitled to a pension for services as a soldier in the Mexican War. This application was made in 1884, and in such application this John Moore swore that .he was born on January 1, 1830, in Hawkins county, Tenn., and went on to detail many other matters connected with showing his antecedents, etc. This application for pension was duly granted, and in 1908 this same John Moore again made application to the Pension Department for an increase in his pension, and in this second application he again stated, and swore to the statement, that he was born on the 1st day of January, 1830. Upon being confronted with these sworn statements, which he admitted making, ■ as to tire date of his birth, the witness undertook to explain the same by saying that as a matter of fact he did not know his exact age, and that this statement to the Pension Department as to the date of his birth was based upon a “record” that was made by a brother-in-law of his, back in Tennessee, under the following circumstances: He said that he had a sister named Betsy, and that she married a man named Jim Marion; that Betsy was his oldest sister, and was several years older than himself, and that one day while this sister and brother-in-law were visiting at his mother’s house his brother-in-law told his mother that Betsy had told her husband her age, and he (the husband) wanted to know of the mother if Betsy had given her correct age; that Jim Marion stated to the mother the age that Betsy had given him, which witness could not remember, and again asked the mother if that was correct, to which the mother replied, substantially, “I reckon so,” or something like that, and thereupon Jim Marion asked his mother the difference in the ages of her children, and the mother replied that the difference was between 18 months and 2 years, and that thereupon Jim Marion commenced to figure with a pencil and piece of paper, and accepting Betsy’s age to be as stated to him by her, and figuring'that there was 2 years’ difference between the ages of the children, he reached the conclusion that the witness John Moore was bom in January, 1830, and so just stated on the memorandum that witness was bom January 1, 1830. He stated that the “record” as made by his brother-in-law was the only record that he ever had or knew of as to his age, or that of any of the other children, and that having no better record, and being in doubt of his correct age, and being desirous of obtaining a pension, and being informed by the authorities to whom his application pertained that it was necessary to state his age in the application, he just decided that he would accept the record as made by his brother-in-law, and say that he was born on January 1, 1830. He stated, however, on the stand, that he was satisfied that Betsy had deceived his brother-in-law, and had caused ail this trouble to himself in doing so.

As bearing upon the age of the said John Moore, of Hardeman county, plaintiffs introduced the evidence by deposition of J. M. Baldwin, a nephew by marriage of this John Moore, and this witness testified that according to family history and tradition, as he remembered it, this John Moore was, at the time of the taking of the deposition in 1915, 100 years old, or maybe more, but we find upon close examination of the record that the testimony of this witness as to John Moore’s family history contradicts, in material respects, that of John Moore himself. Als'o the plaintiffs below introduced the deposition of Mrs. Betty Thompson, who testified that she had lived in the same community with the Hardeman county John Moore for about 20 years while he lived in Milam county, and it is her opinion that said Moore was about 95 years old in 1915. Also the plaintiffs introduced the deposition of G. W. Radford, a physician, who testified in 1915 that he had known this John Moore for about 20 years, and had treated him professionally, and that he would think that John Moore is somewhere between 90 and 100 years old. Also the plaintiffs introduced the deposition of Calvin Marshall, taken in 1915, and he testified that in his opinion John Moore was, at that time, about 90 years old; that he had known him for about 23 years.

The defendants below, among other things, introduced on this point the deposition of J. O. Elliott, taken in 1015, who testified that he was 76 years old at the time, and that he had known the Hardeman county John Moore approximately 60 years; that John Moore’s first wife, Miss Elliott, was witness’ cousin; that when witness first met John Moore he appeared to be between 23 and 25 years of age; and that he has known John Moore intimately ever since that time. He further testified that this Hardeman county John I Moore often spoke about his age during the time witness knew him, and that it was frequently mentioned by this John Moore that he was just 9 years older than this witness. The witness further stated that he never in his life, although knowing John Moore intimately for more than 60 years, heard him say that he was in doubt of his true age, and never on any occasion heard him mention the “record” made by his brother-in-law, Marion, nor anything in that connection; that he always spoke of the date of his birth as being January 1, 1830, and seemed to have no doubt of its correctness. Also the defendants introduced the deposition of Mrs. Sarah Styles, who testified that she was 68 years of age; that she had know the Hardeman county John Moore for more than 60 years; that he married witness’ sister, Miss Elliott; that witness had often heard this John Moore say that he was born January 1, 1830; and that he never at any time during all the years she had known him claimed that he was in doubt as to his correct age. Also defendants introduced the deposition of W. S. Elliott, who testified that he was 70 years old; that he had known the Hardeman county John Moore for a period of 63 years, having first met him in 1852, and further testified that Miss Elliott, John Moore’s first wife, was witness’ sister, and further that he had heard Moore say many times during the many years he had known him intimately that he was born January 1, 1830, and that John Moore never, in all these years, expressed any doubt of his correct age. The witness further stated that in his opinion the Harde-man county John Moore was about 85 years of age. ¡

It was further shown by J. W. Minton, an attorney residing at Hemphill, that some time in the winter of 1911 the Hardeman county John Moore came into witness’ office making inquiry about land, and asked him something about abstracts, and that upon that occasion this John Moore told Minton that he was then 82 years old, and, according to Minton, Moore further stated to him on that occasion that he (Moore) did not come to Texas himself to get the land, but that his “folks” came to Texas and got the land for him. Substantially the same facts I were testified to; by J. A. Watson. Also, as bearing upon the issue of identity of the Hardeman county John Moore with the original grantee of the land in question, the plaintiffs below introduced another witness, John Pickering, who testified that he was bom on the 1st of January, 1818, in the state of Mississippi, and that he came to Texas in 1830, and shortly thereafter entered the war between Texas and Mexico then going on, and was one of the participants in the battle of San Jacinto. This witness further testified that after leaving the vicinity in which this battle was fought, and some time early in the spring of the following year, he made ¡ his way to Shelbyl county, Tex., and there fell in company with some of the early surveyors in that part of the country, among them being Arthur Henrie and David Brown; that witness followed the gambler’s profession at that time, playing mostly the game of “seven-up,” of which he was very fond, and that he had many times played the game with old David Brown, whom he called “Uncle Dave,” and that he had won many a dollar from David Brown in this game. He further testified that some time during the year 1837, and while he was following the camps of these old surveyors, he became acquainted with two young men whose names he understood to be William Bloore and John Moore; that these young men claimed to be brothers, and also claimed that they were from Hawkins county, Tenn. He stated that William seemed to be a little older than John, and that John seemed to be a little older than this witness. He also stated that he met at that time in that vicinity a man by the name of Foard Mann (it was claimed by the plaintiffs that Forg Mann was the man referred to by witness), and, among other things, the witness further stated that on one occasion he carried a note written by Arthur Henrie to David Brown, and delivered this note to this young man who called himself “John More.” He further stated that, as he understood the contents of this note, it was in substance a direction from Arthur Henrie to David Brown to show this young man, John-Moore, his land, and witness stated that this matter was unusually impressed upon his mind at the time, because of the fact that the spelling of the name “More” on this note was different from the way the name Moore was always spelled, so far as this witness knew, and he remarked to himself at the time that it was strange that a man of David Brown’s ability and business experience and supposed education, etc., wouldn’t know how to spell “Moore,” and, if we mistake not, he testified that he called David Brown’s attention to this in a little pleasantry, and David Brown replied that this young man, John More, spelled his name with one “o,” and not wth two “o’s,” as usual. The witness further stated that he only saw this young man who called himself John Moore a time or two in those days, and perhaps never had more than one or two conversations with him in his life, and never met him again.thereafter until a few days before this case was called for trial — something more than three-quarters of a century. And he further testified that while, of course, he could not undertake to say that the Hardeman county John Moore, who testified in this case, was the sama young man who called himself John Moore in 1837, and could not identify him as being the same man, yet it is apparent from the record in this case that this witness would have sworn that he believed this Hardeman county John Moore was the same John More that he had met in 1837, basing such belief upon statements made to witness by the Hardeman county John Moore a day or two before the trial below. This belief on the part of the witness seemed to be based principally upon the fact that this Hardeman county John Moore had, during a conversation just before this trial, mentioned to witness the name of another man whom the witness met and knew well in that vicinity in 1837, and whose name was “Colonel” Pickett. These are substantially all the facts that the witness Pickering detailed that would have any tendency to prove that this Hardeman county John Moore was the same man to whom this league of land was granted in 1S35.

On the trial below, in addition to the evidence introduced by the defendants, as here-inbefore mentioned, they also produced -the original testimonio, which was delivered by the Mexican government to the original grantee of this league of land at the time the grant was extended, which instrument, it was shown, came from the proper custody, and about which there was no question as to its genuineness. It will be remembered that at the date of the grant of this land the law of the Mexican government provided the method of extending titles, and that the method adopted at that time was to execute what was called the protocol, which was kept on file by the Mexican government as an archive, and the testimonio, which was simply a copy or, as frequently termed, duplicate original of the protocol, was delivered to the colonist as the, evidence of his title to the land granted. This original testimonio, we repeat, written in the Spanish language, was produced and introduced in evidence by the defendants in this case, and it was nowhei’e shown that the Hardeman county John Moore ever had in his possession or saw this instrument, but his only claim in that connection is that his brother William had whatever title papers there were to this land, and that these title papers were lost in the Mississippi river in 1850.

The defendants below also produced from the proper custody and introduced in evidence what purported to be the original deed from the original grantee of this land to Porter and Lane, dated, as before stated, October 3,1835, the execution of which was witnessed and proved for record, and recorded as shown in the beginning of this opinion, and this is the deed that these defendants in error, M. G. Moorei and W. H. Ratliff, claimed was a forgery. In addition to this, the record discloses that Porter and Lane, claiming under thi£ deed to them, commenced to assert their ownership of this land, and same was conveyed down through the years, by mesne conveyances by their successors in title, claiming under this deed, which these defendants in error claimed was a forgery, and said Porter and Lane and their successors in title, claiming under and through this deed, have continued to assert ownership and exercise actual ownership by dealings in and conveying this land from one to another, which deeds have been, placed of record, during all of which great length of time no claim of any character whatever has been asserted thereto by the Hardeman county John Moore, or by any one claiming under him, until shortly before this suit was filed, as stated in the beginning.

We might mention other strong circumstances appearing from this record tending to show that the .claim of title set up by the Hardeman county John Moore to this league of land was not well founded, but we think that we have already stated enough to show that this court is clearly justified in the conclusion we have reached in this case, and we shall therefore not incumber this opinion with further details.

Now, it is first contended by these plaintiffs in error Toole et al. that the trial court was in error in declining to peremptorily instruct a verdict in favor of all defendants as against the plaintiffs below for all the land claimed by them respectively, and under this assignment plaintiffs in error contend that, there being no evidence going to show that the deed from the purported original grantee to Porter and Lane was a forgery, and having connected themselves by mesne conveyances with the title conveyed by that deed, they were entitled to recover the land as against the plaintiffs.

We cannot sustain this assignment, for the reason that we cannot correctly say that there was no evidence to go to the jury on the issue of forgery of said deed, because the testimony of the Hardeman county John Moore himself was some evidence on that issue, and the rule in this state being, as we understand it, that the court cannot peremptorily instruct a verdict on any issue as against a party to a suit where there is some evidence in his favor on the issue involved, we must therefore overrule this assignment.

The next assignment raises a different question, however, and by the same it is contended that the burden of proof being on the plaintiffs below to prove title to the land in controversy, in order to recover the same from the defendants, and plaintiffs having failed to do so by evidence legally sufficient, the trial court sliould bave set aside the verdict of the jury in favor of the plaintiffs and granted the defendants, against whom recovery was had, a new trial. This assignment we have concluded, after very careful consideration, we must sustain. The facts we have mentioned above relate tff both of the main findings made by the jury in this case; that is (1) that the Hardeman county John Moore was the man to whom this league of land was granted in 1836, and (2) that he did not convey the same to Porter and Lane. After very careful consideration of the entire record in this case, we have reached the conclusion that the evidence introduced on the trial below, as reflected by this record, considered as a whole, was unsuffieient to warrant a finding by the jury that the Harde-man county John Moore, under whom the plaintiffs below claimed this league of land, was the original grantee of this land; and, of course, if he was not such, then it follows, without any room for controversy, that there was no proof whatever and no necessity for any proof whatever that the deed of October 3, 1835, from the purported grantee to Porter and Lane was a forgery.

In reaching this conclusion in this matter we have not been unmindful of the rale obtaining in this state that our Courts of Civil Appeals are not authorized to disturb a jury’s verdict or finding on an issue of fact, where that verdict or finding has reasonable support in the evidence, although it may appear to the appellate court that such verdict or finding is against what they conceive to be a preponderance of the evidence relating thereto. That rule is firmly established in this state, and we have no inclination to question, in fact do not doubt, its wisdom; and it may be found that only in rare instances has this court disturbed the verdict or finding of a jury on any question of fact in any case decided by this court, and then only where, in the opinion of this court, the verdict or finding was overwhelmingly and manifestly against the preponderance of the evidence, and appeared to this court to be clearly wrong. We are not unmindful of the fact that loose expressions may be found in the reported cases to the effect that where there is any evidence in the record in support of a jury’s verdict or finding then the appellate court cannot disturb such verdict or finding, but it will be found, we think, upon examination of the Authorities where such expressions were used, that the court using such expressions did not mean for such language to be construed literally, but only meant that where the evidence was reasonably sufficient to support the verdict of the jury, it would not be disturbed by the appellate court. Our appellate courts have always held, with practical unanimity, that a jury’s verdict on a question of fact should not be disturbed where the evidence relating thereto was merely contradictory, or where it was a question of mere credibility of witnesses, and the evidence as a whole is reasonably sufficient to support the verdict, but all the Courts of Civil Appeals in this state have held that where the evidence relating to a jury’s verdict on a question of fact so clearly and overwhelmingly preponderates against the verdict as to make it clear to the appellate court that such verdict was wrong then such verdict should be disregarded and set aside by the appellate court, and in this case this court has been constrained to conclude that the evidence idearly and overwhelmingly preponderates against the verdict of the jury on both of the main issues submitted to it, and so much so that this court feels compelled to say, in the discharge of its duty, that the verdict is clearly wrong. It would serve no useful purpose to here dissect and analyze by way of argument this evidence, and in view of another trial we think best not to do so. We therefore only say in conclusion that the assignment of the plaintiffs in error Toole et al., challenging the verdict of the jury in this case for lack of sufficient evidence to support it and the judgment of the trial court in refusing to grant a new trial upon the same ground, is sustained, and the judgment to that extent is reversed and the cause remanded, as between said plaintiffs in error Toole et al. and the defendants in error M. 6. Moore et al.

We now take up the case as brought here by the writ of error of M. <3. Moore et al. v. American Lumber Company. As stated in the beginning of this opinion, upon conclusion of the evidence below, the trial court granted a peremptory instruction requested by defendant in error American Lumber Company to the jury, directing the jury to return its verdict in favor of said defendant for a XJarticular 1,107 acres in the league of land sued for, and upon that verdict entered judgment in favor of said defendant for that portion of the league. The main assignment of the plaintiffs in error on this phase of the case challenges the correctness of the action of the trial court in giving this peremptory instruction. The trial court in giving this peremptory instruction assumed, as appears from the record, that the American Lumber Company proved its title to this 1,107 acres under its pleas of limitation, and that the proof on that question was in such shape as to authorize the court in treating the issue as one of law only, and therefore required a peremptory instruction.

At the threshold of this part of the case, we are met with an objection interposed by defendant in error American Lumber Company to a consideration of this assignment by plaintiffs in error, based on the ground that the record in this case does not show that any objection or exception to the giving of this peremptory charge was made by the plaintiffs in error in the court below, and it is contended that in the absence of such showing by the record any assignment based upon the giving of such peremptory instruction should not and cannot be considered by this court. It appears from the record that this defendant in error presented in writing a reguest to the trial court for a peremptory instruction, which was given as above stated, and it nowhere appears in the record that any objection to the giving of this charge was made by the plaintiffs in error. Nothing in the way of a formal hill of exception or any other character of objection or exception was taken or made by the plaintiffs in error to this action on the part of the trial court. The question is therefore squarely presented whether this court is authorized to consider this assignment and review the action of the trial court in giving this charge.

It is suggested by the plaintiffs in error that this action of the trial court constituted fundamental error, and that no objections of any character to the court’s action in giving this peremptory instruction was required, and that this court is authorized to review that action, even without a formal assignment of error in the trial court. Upon examination of this question, we find that each of the Courts of Civil Appeals of this state has had occasion to pass upon the same, and we find that each of them, with the exception of the Galveston and Amarillo courts, have held that, in order to entitle a party to complain of the trial court’s action in giving a peremptory instruction, timely and 'proper objection must be made thereto before such charge is given to the jury, and the action of the court upon such objection must be properly reflected by the record. We agree with these several Courts of Civil Appeals, and hold that this court is without authority to consider this assignment of error, and without discussing the matter further, we cite the following authorities in support of our holding: Hendrick v. Blount-Decker Lbr. Co., 200 S. W. 171; Thorne v. Dashiell, 189 S. W. 986; Carr v. Pecos Valley State Bank, 189 S. W. 988; Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; Railway Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Feldman, 170 S. W. 133; Case v. Folsom, 170 S. W. 1066; Bohn v. Burton-Lingo Co., 175 S. W. 173; Railway Co. v. Wilson, 176 S. W. 619; Denison v. McAmis, 176 S. W. 621; Donaldson v. McElroy, 184 S. W. 1100; Commonwealth v. Bryant, 185 S. W. 979; Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Walker v. Haley, 181 S. W. 559.

If we are correct in holding that the plaintiffs in error on this phase of the ease waived their right to complain of the action of the trial court in peremptorily instructing in favor of defendant in error American Lumber Company for the portion of this league of land recovered by it, then it would be useless to consider other minor assignments of error in this connection, for the reason that even if this court should sustain them its action in doing so could not have the effect to reverse the judgment in favor of this defendant in error as to the portion of the land recovered by it.

It follows from what we have said that the judgment of the trial court in this case, in so far as the same affects the plaintiffs in error Toole et al. and the defendants in error M. G. Moore et al. must be reversed, and the cause as to them remanded for a new trial; but the judgment, in so far as it relates to the 1,107 acres of land recovered by the defendant in error American Lumber Company against the plaintiffs in error M. G. Moore et al. should be affirmed, and it is so ordered.

Reversed and remanded in part, and in part affirmed.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CHILTON, Special Judge.

license: Public Domain

text:
    COBB & GREGORY v. DIES, County Judge, et al.
    (No. 217.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 18, 1918.
    Rehearing Denied May 15, 1918.)
    Appeal and Error &wkey;>761 — Briefs.
    Under rule 36 of the Court of Civil Appeals (142 S. W. xiii), providing that there should be annexed to each proposition with its statement and at the end'of it a reference simply to the authorities relied on, if any, in support of it in the following order, to wit: “The statutes and decisions of this state; the statutes and decisions of the United States; * * * elementary authorities; other decisions in the American and English courts” — it is improper to present in the brief letters and statements from universities and colleges of the United States as to the construction to be placed upon the language of a statute.
    Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge.
    Mandamus by Cobb & Gregory, a firm composed of O. E. Cobb and J. A. Gregory, against W. W. Dies, County Judge, and another. From judgment for defendants, plaintiff appeals. On motion by appellees to strike out a portion of appellant’s brief.
    Motion granted.
    See, also, 203 S. W. 438.
    Mantooth & Collins, of Lufkin, and Orgain, Butler & Bolinger, of Beaumont, for appellant. Leon Sonfield, of Beaumont, D. F. Singleton, of Kountze, and J. L. Manry, of Livingston, for appellees.
   CHILTON, Special Judge.

Appellees have filed a motion asking that a certain portion of the brief filed in this case by the appellants be stricken out, and that appellants be required to file briefs with the matter objected to eliminated therefrom.

One phase of this case involves the question as to the proper construction of article 2238, Revised Statutes of 1911, and in the statement under the first proposition, on page 8 of appellants’ brief, it is stated:

“In onr zeal to arrive at the true_ construction which should be placed upon this statute, and in order to do everything we possibly could to aid the court in determining it, we have sent out the following form letter to a number of the most reputable universities and colleges of the United States, asking for information about this statute.”

Following this is a copy of the form letter sent out by the attorneys of appellants, and then follows copies of numerous replies received, covering in all some 25 pages, and this is the matter objected to. Of course such matter is out of place in a statement under a proposition, as it does not pertain to the facts shown in the record, but the point urged is not this, but that it should not be in the brief at all. Rule 36 (142 S. W. xiii) of the rules governing the briefing of cases in the Courts of Civil Appeals, is as follows:

“There should be annexed to each proposition, with its statement, and at the end of it, a reference simply to the authorities reiled on, if any, in support of it, in the following order, to wit: The statutes and decisions of this State; the statutes and decisions of the United .States, if they are applicable to the case; elementary authorities; other decisions in the American and English courts. In citing decisions, those most nearly in point should be cited first, and they should not, usually at least, be so numerous as to require a waste of time in their examination.”

Parties who have filed briefs may, upon the submission of a case, present an argument, either oral or written (rule 47 [142 S. W. xv]), which must be confined to the disputed points presented by the propositions in the briefs (rule 48 [142 S. W. xv]).

No doubt considerable liberality should prevail in permitting counsel, in briefs and arguments, to cite and quote the opinions and expressions of others on principles and theories of law involved in a case, in what form 'or wherever found; but we do not think it proper to present before the court letters and statements of outside persons, eminent and disinterested though they may be, which are aimed at the particular case, and undertake to say how a statute under consideration should be construed, or how the case should be decided. Even in the absence of any express rule, indicating what should be contained in briefs and arguments of counsel, such a practice would seem not to be permissible.

The motion of appellees is therefore granted.

Thereafter the appeal was dismissed for failure to file briefs as directed. On February 6, 1918, motion of appellant to reinstate cause was granted.
      <§n»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COBB & GREGORY v. DIES, County Judge, et al.
    (No. 217.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 18, 1918.
    Rehearing Denied May 15, 1918.)
    1. Counties <&wkey;52 —County Commissioners —“QUORUM.”
    Under Rev. St. 1911, art. 22.37, providing that the commissioners’ court shall be composed of the commissioners, together with the county judge, and that the county judge, when present, shall be the presiding officer, and article 2238, providing “that any three members of said court including the county judge” shall constitute a quorum for the transaction of any business except that of levying a county tax, three members of the, commissioners’ court, one of whom must be the county judge, may constitute a quorum, or in the absence of the county judge the presence of all the commissioners is necessary to a quorum.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Quorum.]
    2. Statutes &wkey;>225% — Re-enactment after Judicial Construction.
    Where a judicial construction has been placed on a statute and the laws have been subsequently revised and the . construed provision re-enacted without material change, it will be conclusively inferred that the lawmaking body intended that the same construction should be placed on the language of the statute in the future.
    3. Counties &wkey;>213 — Actions — Conditions Precedent — Audit by Commissioners’ Court — “Neglect or Refusal to Audit Claim.” ■
    Where the commissioners’ court of a county has prevented action upon a claim against a county by intentionally refusing to attend the meetings so as to form a quorum, such conduct constitutes a neglect or refusal to audit claims so as to authorize the bringing of suit within Rev. St. 1911, art. 1366, providing that no county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance and such court shall have neglected or refused to audit and allow the same.
    4. Mandamus <&wkey;3(l) — Other Adequate Remedy.
    Mandamus will not lie where the petitioners have another plain and adequate remedy.
    Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge.
    Suit by Cobb & Gregory, a firm composed of O. E. Cobb and J. A. Gregory, against W. W. Dies and another. From judgment for defendants, plaintiff appeals.
    Affirmed.
    See, also, 203 S. W. 437.
    Mantooth & Collins, of Dufkin, and Orgain, Butler & Bolinger, of Beaumont, for appellant. Leon Sonfield, of Beaumont, D. F. Singleton, of Kountze, and J. L. Manry, of Livingston, for appellees.
   CHILTON, Special Judge.

The appellants, Cobb & Gregory, a firm composed of O. E. Cobb and J. A. Gregory, instituted the suit seeking a mandamus requiring W. W. Dies, county judge, and J. X. Bevil, county clerk, of Hardin county, Tex., to execute and deliver certain warrants of Hardin county. The petitioners alleged, as a basis for this relief, in substance, that, on August 7, 1916, said Hardin county being indebted to the petitioners on account of certain road work done and performed in accordance with a contract between said county and petitioners, the account and claim therefor was presented to the commissioners’ court of said county, then properly assembled in special session, with three commissioners present and attending (but the county judge and one commissioner being absent) and that the account of petitioners was at said session, after being duly considered and audited, allowed, and the issuance of the warrants of the county for the amount, $6,811.02, directed and authorized. It is shown that the contract between petitioners and the county provides for the signing of such warrants by the county judge &d county clerk, and that said contract in connection with the order provides for all other details with reference to the amounts, due dates, rate of interest, etc., of such warrants, and that petitioners have requested and demanded the execution and delivery thereof, but that the said Dies, county judge, and Devil, county clerk, have refused and still refuse to comply therewith. The other members of the commissioners’ court of .Hardin county, J. N. Newman, G. A. Anderson, J. D. Flowers, and J. S. Jackson, are made parties defendant, also the county of Hardin, as a body corporate, and the petition contains a prayer for certain other relief, with allegations pertinent thereto, which will be noticed and considered later on in this opinion. The defendants answered by general demurrer, and numerous special pleas and denials. The justness and correctness of the claim- of petitioners against Hardin county was stoutly denied and contested, and it was shown that at a session of the commissioners’ court,- with all members present, subsequent to the one referred to in the petition, the former order allowing the account was by unanimous vote rescinded and the account allowed for a much less amount, which action it seems, though, was taken without notice to Cobb & Gregory, but it is not necessary to notice these defensive pleadings in detail. The general demurrer to the petition as sustained by the trial judge, and petitioners having refused to amend, the suit was ordered dismissed, from which judgment an appeal has been perfected.

The first and main contention of appellants is that any three members of a county commissioners’ court, one of which three may or may not be the county judge, constitutes a quorum for the transaction of any business except that of levying a tax, and that therefore the order entered on August 7, 1916, allowing the claim against Hardin county and ordering the issuance of' warrants, is a valid and binding order, and must be observed. This calls for a construction of articles 2237 and 2238, of our statutes, relating to the organization of county commissioners’ courts, which read as follows:

“Art. 2237. (1533) (1510) Court Composed of Whom, and, the Presiding Officer Thereof. — The said commissioners, together with the county judge, shall compose the commissioners’ court, and the county judge, when present, shall be the presiding officer of said court.”
“Art.- 2238. (1534) (1511) Three Members Constitute a Quorum, except, cte. — Any three members of the said court, including the county .judge, shall constitute a quorum for the transaction of any business, except that of levying a county tax.” ‘

Counsel for appellants have discussed, with much learning and force, the question as to the proper construction of the articles above, particularly article 2238, and we agree in the main with the views expressed, and would construe the statute as appellants contend it should be, if we regarded it as an open question. When one looks at article 2238, standing alone, there can be no doubt that it is somewhat ambiguous, but when considered in connection with the preceding article we think the meaning and intention reasonably clear. Prior to the enactment of these provisions, the commissioners’ courts in each county of the state had been created by the Constitution to be composed of four commissioners and the county judge (Const. art. 5, § 18), and the county judge was made the presiding officer. No provision was made in the Constitution as to what number of members, less than the whole, might constitute a quorum for the transaction of business, and it would seem, in the absence oí this, the presence of all members would be necessary. To remedy this no doubt, was the matter uppermost in mind when tbe slat-ntory provisions before mentioned were enacted. There is no provision, other than article 2238, expressly saying what number of members of the court may constitute a quorum, and it is clearly contemplated by the preceding article, 2237, that the county judge may not always be present and that the court may transact business and enter valid orders in his absence. The opening clause of article 2238, “Any three members of said court” would clearly include the county judge who is already mentioned as a member of the court, but confusion is injected by the uncertain nature of the clause immediately following, “including the county judge.” We think this should be treated as an explanatory nonrestrictive clause, or a mere loose repetition of what had already been implied. It appears to have been the purpose on the part of the draftsman to again repeat or emphasize the fact that the county judge is a member of the court just as much so as any one of the commissioners, and may bo counted as one of the “any three members” necessary to constitute a quorum. However this may be, we have before us the case of West v. Burke, reported in 60 Tex. 51, wherein the court construes sections 11 and 12 of the act of 1876 (Acts 15th Leg. c. 55) the language of which is now embodied in articles 2237 and 2238, before quoted, with only slight and immaterial change of verbiage, as meaning that three members of a commissioners’ court, one of whom must be tbe county judge, may constitute a quorum, and in the absence of the county judge the presence of all four commissioners is necessary to a quorum. The opinion is short, and relates to only this one point, and we think it well to quote what is there said:

“The Constitution (article 5, § 18) provides that the four commissioners, with the county judge as presiding officer, shall constitute the county commissioners’ court. The act to organize the commissioners’ court (Laws 1876, p. 53, § 12), provides that any three members of the court, including the county judge, shall constitute a quorum. From section 11 of the act we conclude that this court may meet and transact business in the absence of the county judge, and in that event some other member of the court may pz-eside. See, also, R. S. art. 1510. Section 13 provides that the judge or any three of the commissioners may call special terms; but there is no intimation in the law that, in the absence of the judge, any number of the commissioners less than the whole shall constitute a quorum for the transaction of business. We conclude that the three members who made the order of December 1, 1877, were-not a court within the meaning of the statute, and that the order was void.”

The opinion is by Judge Delaney of the Commission of Appeals, and is shown to have been approved and adopted by the Supreme Court on June 19, 1883. Commenting on this ease, counsel for appellants refer to the fact that the case was decided by the old Commission of Appeals about 34 years ago, and that while it is true it appears to have been approved by the Supreme Court, they express serious doubts “if the manner in which the decision was arrived at was investigated very! .closely by the Supreme Court at the time,” etc., and urge that the conclusion as to construction of the statute being against the very obvious meaning thereof, this court should disregard it. Although we believe that the conclusion there reached as to the construction to be placed on the statute in question was incorrect at the time, still we cannot see our way clear to undertake to upturn that construction now.

The opinions of the Commission of Appeals, when approved and adopted by the Supreme Court, as was authorized by the law existing at the tiine of this opinion, became as authoritative as the decisions of the Supreme Court proper. Wooters v. Hollingsworth, 58 Tex. 371. But further than this, it must be borne in mind that since this construction has been placed on this statute, there have been two revisions of the laws of this state, in .1895 and again in 1911, in both of which the provisions in question have been re-enacted and brought forward with no material change. It is generally held, under such circumstances, that it will be eonclusiveEy inferred that th)e liawmaking body intended that the same construction should be placed on the language of the statute in future. G., C. & S. F. Ry. Co. v. Ft. W. & N. O. Ry. Co., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Scott v. State, 6 Tex. Civ. App. 345, 25 S. W. 338; 36 Cyc. pp. 1153, 1154.

The question as to what number of members of a commissioners’ court should constitute a quorum for the transaction of business is no isolated matter, but is a question of very general interest and almost daily concern throughout the state. These articles have been permitted to stand unchanged, with the construction placed upon them in West v. Burke, supra, for 34 years, during which time there have been some 18 regular sessions of the Legislature, not to mention numerous special sessions, and we must assume that this is the meaning intended for them. In the case of Rowe v. Spencer, 70 Tex. 78, 8 S. W. 60, the Supreme Court goes so far as to hold, referring to one of its prior opinions dealing with a statute involved in that case, that:

“A session of the Legislature having occurred since the decision was made, without any change in these articles being enacted, we must infer that this construction is that which the Legislature intends they shall receive in the future.”

Before leaving the point, will say that we have considered the case of Racer v. State (Tex. Cr.) 73 S. W. 968. The opinion is by Judge Davidson, rendered in 1903-^ The order of the commissioners’ court there referred to was entered with four commissioners present, the county judge being absent, and was upheld as valid. It will be seen that the result of the ruling is not necessarily in conflict with that in West v. Burke, and the case was not referred to; but the language of the opinion makes it rather clear the court was of the opinion that any three members of the commissioners’ court, one of whom might or might not be the county judge, was sufficient for a quorum. It may be that the rule as indicated by the language of this decision will be followed whenever the question comes up in a criminal proceeding, but that is a matter outside of our province.

It follows from what has been said that we do not think the petition showed good grounds for a mandamus against Dies, as county judge, and Bevil, as county clerk.

There is a prayer for relief, in the alternative, and the allegations of the petition in that connection will be stated very briefly, as follows: That the petitioners, on or about December 13, 1915, made a contract with Hardin county for the grading and constructing of certain roads in said county, and in accordance with said contract have done certain, work, as described and set forth in the petition, for which there is a balance due them of $6,811.02. That petitioners have from time to time for several months past presented their claim to the commissioners’ court of Hardin county while said court was in regular or special session, and have asked and demanded the settlement of said account; that at all times three commissioners and members of the court, namely, J. N. Newman, <3. A. Anderson, and J. S. Jackson, have been in favor of allowing and paying the account, and have been ready and willing to voté therefor, but that W. W. Dies, county judge, and J. L. Flowers, commissioner, for tlie purpose of evading and preventing action by the court on said account, have constantly and steadfastly refused to remain present at any session of said court long enough to enable the petitioners to present their claim and secure action thereon. It is set forth that at the date of the purported order of the commissioners’ court, before referred to, and immediately preceding the entry thereof, and while the court with all members thereof present, was in session, the said claim of petitioners was presented, and that Dies, county judge, and Flowers, commissioner, withdrew from the courtroom and refused to attend the court, and that they will so refuse to attend and remain present at any session of said court in future when the claim of petitioners against the county is presented. It is then asked in the event the relief first prayed for is denied:

“That the court issue at once its writ of mandamus, directing, ordering, and requiring said W. W. Dies as county judge, and J. L. Flowers as commissioner, and each and all the members of the commissioners’ court of Hardin county, Tex., herein named, at the next first special session or its next regular session, to remain' present and keep the court open and give plaintiff and his counsel an opportunity to present plaintiffs’ claim as set forth and to give the members of said court an opportunity to make a motion and secure a second to allow said claim or reject it, and that the said W. W. Dies, as judge, be required to place all motions that may be made and seconded concerning said matter either in favor of or against it, before the court, so that the members thereof may have-an opportunity to vote yea or nay.”

With reference to the question here arising, appellants in their brief' present the proposition that:

“Any party having a claim against any county is entitled to have a legal quorum of the commissioners’ court of said county, either allow or reject the same, and to enable the party to secure said right, a writ of mandamus should be issued, requiring and compelling the members of the commissioners’ court to remain present at a special or regular session for a reasonable length of time until such party can present to them his claim and secure a vote upon it.”

Counsel for appellants have not cited any authority under this proposition, and the point was not mentioned in the oral argument at the submission of this case, and we naturally assume that they, do not put any great faith in the right to such an order, under the facts here shown. We do not doubt that the writ of mandamus may be availed of under proper conditions to require a court to act upon matters beforé it, but we do not find it necessary to go into the question, as this phase of the matter can be disposed of upon another ground. Article 1366, Rev. Stat. 1911, provides that:

“No county shall be sued unless the claims upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance, and such court shall have neglected or- refused to audit and allow the same, or any part thereof.”

We think the conduct upon the part of the commissioners’ court of Hardin county with reference to the claim of petitioners against the county, according to the facts set forth in the petition, if true, constitutes such neglect or refusal to audit and allow the claim as is contemplated by the above article and operates to give to Cobb & -Gregory the right to institute an ordinary suit against the county for the amount alleged to be due. Williams v. Bowie County, 58 Tex. Civ. App. 116, 123 S. W. 199; Smith v. Wise Co., 187 S. W. 705.

The parties, therefore, having another plain and adequate remedy, will not be permitted to resort to a mandamus. Hogue v. Baker, 92 Tex. 58, 45 S. W. 1004; R. C. L. vol. 18, Mandamus, pars. 44, 47.

We conclude that the trial court did not err in sustaining the demurrer to the petition, and the judgment is therefore affirmed.

Chief Justice HIGI-ITOWER, and Associate Justice KING, being disqualified in this case, the Governor appointed George Chil-ton, Esq., and A. L. Calhoun, Esq., of the Beaumont bar, to sit in the case as special Justices.
      <S=s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOÜRSUND, J.

text:
    WHITE et al. v. TEXAS MOTORCAR & SUPPLY CO. et al.
    (No. 5995.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1918.
    Rehearing Denied May 15, 1918.)
    1. Sequestration <&wkey;4 — Jurisdiction — Quashing- oe Writ.
    In an action.for damages for refusal to deliver possession of automobiles plaintiff had stored in defendant’s garage, a writ of sequestration, issued before petition was amended so as to sue for possession, was properly quashed; Rev. St. 1911, arts. 7094, 7095, specifying cases in which property will be sequestered, authorizing no writ in an action merely for damages.
    2. Sequestration &wkey;>12 — Jurisdiction — Nature oe Action.
    Since Rev. St. 1911, art. 7096, requires the filing of a petition before a writ of sequestration can issue, where the petition seeks damages alone and not possession, the nature of the action is to be determined thereby, and an averment in the affidavit that possession was sought does not confer jurisdiction to issue the writ, and amendment of petition after issuance of writ does not cure defect.
    3. Sequestration <&wkey;12 — Language oe Ae-eidavit — Compliance with Statute.
    The words, “will make use of its possession of said property to injure said property,” in plaintiff’s affidavit for writ of sequestration, were a substantial compliance with Rev. St. 1911, art. 7094, providing that the writ may issue where plaintiff fears that defendant “will injure such property.”
    4. Appeal and Error <§=»1043(1) — Sequestration — Harmless Error.
    Where the. court properly quashed the writ of sequestration on the ground that there was no jurisdictional power to issue the writ, its ruling in erroneously sustaining exceptions to sufficiency of plaintiff’s affidavit for writ was harmless.

      5. Corporation's &wkey;>617 (5) — Dissolution — Judgment.
    After a corporation has been dissolved, no judgment can be entered against it, although suit may have been pending at the time of dissolution.
    6. Corporations <&wkey;349 — Liability op Directors — Dissolution.
    Plaintiff, who claimed a corporation refused to deliver possession of automobiles stored in its garage, cannot, upon insolvency and dissolution of the corporation, recover against directors personally, where they owed nothing on stock subscriptions, and where as trustee after dissolution they had no property of the corporation in their hands, unless they negligently continued to hold automobiles after dissolution and then only for such depreciation as occurred after dissolution.
    7. Livery Stable and Garage Keepers <&wkey; 8(1) — Garage—Lien for Storage.
    A garage owner has no lien on automobile for storage charges unless automobile was stored under contract with the owner thereof.
    8. Bailment <&wkey;l 8(4) — Automobile Repair Work — Surrender of Property — Waiver of Lien.
    A garage which voluntarily surrenders possession of an automobile on which repair work has been done loses its lien securing payment of amount due for repairs; and, where garage again comes into possession, it cannot hold car to protect itself against the nonpayment of such repair charges.
    9. Livery Stable and Garage Keepers <&wkey; 8(1) — Garage—Liens—Storage Charges.
    Where a garage is sold and new owner continues to hold a car he knows is being wrongfully withheld from its owner, he cannot claim lien on such car for storage charges.
    10. Bailment &wkey;>18(2) — Change of Possession Without Assignment of Lien.
    Where a garage is sold and the buyer, in taking possession of the garage, comes into possession of an automobile held by seller to protect a lien for repair charges, the buyer gets no right to the lien on such automobile, unless the lien claimed has been assigned to him by the seller.
    11. Livery Stable and Garage Keepers <&wkey; 8(1) — Garage—Liens.
    Where a garage holding an automobile on which it claims a lien is sued by owner for possession, and replevies automobile after a writ of sequestration has been issued, the garage cannot claim a lien for storage for the time it held automobile after it had been replevied.
    Appeal from District Court, Nueces County; Walter P. Napier, Special Judge.
    Action by J. H. White against the Texas Motorcar & Supply Company, R. H. Welder, and J. J. Welder, in which W. A. Saunders filed a petition in intervention. Prom the judgment, plaintiff and intervener appeal.
    Affirmed in part, and in part reversed.
    G. R. Scott and Boone & Pope, all of Corpus Christi, for appellants. Kleberg & Stay-ton, Russell Savage, and Dawson & Anderson, all of Corpus Christi, for appellees.
   MOÜRSUND, J.

J. H. White, on January 11, 1913, sued Texas Motorcar & Supply Company, a private corporation, alleging that on January 8, 1913, he had placed two automobiles, each of the value of $1,500, in defendant’s garage for storage, and on January 9, 1913, when plaintiff demanded pos- session thereof, defendant refused to deliver possession thereof, alleging that it had an unpaid account against certain persons, and that it proposed to hold the automobiles until said account was paid; that said account was not made by plaintiff or authorized to be made by him, and plaintiff was not liable therefor; that plaintiff offered to pay and tendered to defendant the customary charges for repairs to said car and for storage thereof which accrued after it was stored with defendant on January 8th, as aforesaid; but defendant declined to accept said pay or to advise plaintiff of the amount thereof. Plaintiff in his petition made tender of such amount as is reasonable, proper, and customary charge for defendant’s Services with respect to the automobiles between the date he stored same and of the refusal of defendant to deliver same. Plaintiff also alleged :

“That by reason of the wrongful and unlawful holding of said property by defendant, and the conversion thereof as aforesaid, plaintiff has sustained damages in the sum of $20 per day on each of said cars, and will continue to sustain damages at the rate of $20 per day on each of said cars until same are delivered to plaintiff, and that by reason of the conversion of the said property, as hereinabove stated, plaintiff sustained damages in the sum of $3,000, the value of said cars.”

The prayer was:

“Wherefore, plaintiff prays the court that defendant be cited to appear and answer this petition and for judgment in the sum of $3,000 for the value of said cars, and $20 per day on each of said cars from and inclusive of the 9th day of January, A. D. 1913, until the defendants shall deliver the possession of said cars to plaintiff, for interest at the rate of 6 per cent, on the amount so recovered from the date when same became due, and for costs of suit and for such other and further relief, special and general, in law and equity, that he may be justly entitled to, whether herein specifically prayed for or not.”

On the day the suit was filed plaintiff made affidavit for writ of sequestration, alleging that he had filed suit for possession of the automobiles, and stating as ground for the writ:

“Petitioner fears the defendant the Texas Motorcar & Supply Company will make use of the possession of said property to injure said property, and will waste and convert to its own use the fruits and revenues produced by the same.”

Sequestration bond was filed; the writ issued and served, and a replevin bond, executed by defendant as principal and R. H. Welder, R. B. McGloin, and D. Odem as sureties, was promptly given and returned with the writ. On August 21, 1915, plaintiff filed his first amended original petition, wherein he alleged that the automobiles were in good condition, and with due care would have remained fit for use for one year, and were earning a net revenue of $20 per day each, which was the fair and reasonable value of the use, hire, or rent thereof, and by reason of being deprived of said automobiles plaintiff suffered damages in the sum of $6,000. He also alleged the proceedings with regard to the sequestration and replevy of the automobiles, and that they had depreciated in value to the extent of $1,450 each. He prayed for judgment for the possession of the automobiles, for his special damages against defendant and the sureties on the replevin bond, and in the event the automobiles could not be delivered, for judgment against defendant and the sureties for the value thereof and his special damages, interest and costs. On October 23, 1916, defendant filed an amended motion to quash the sequestration proceedings. On June 15, 1917, plaintiff filed a third amended original petition, making R. H. Welder, J. J. Welder, Jr., and W. A. Saunders parties. In addition to allegations previously made he averred that the Texas Motorcar & Supply Company, on May 4, 1915, filed its voluntary certificate of dissolution, at which time R. H. Welder and J. J. Welder, Jr., were sole directors, officials, and stockholders thereof; that R. H. Welder at that time was indebted to the corporation in the sum of $5,250, and J. J. Welder in the sum of $500, said amounts being due for stock subscribed for, except one share, which was owned by J. J. Welder; that at the time of its dissolution the corporation had assets of the value of more than $10,000 in excess of its liabilities, which were converted by R. H. Welder to his use and benefit; that said R. H. Welder and J. J. Welder, being sole stockholders and directors, upon the dissolution of the corporation became and were trustees for the creditors thereof, and as such trustees succeeded the corporation, and after its dissolution as individuals, unlawfully retained and held, and still unlawfully retain and hold, the possession of said automobiles, to plaintiff’s damage as thereinbore set forth. He pleaded that Saunders was asserting a claim for storage on the cars and a lien to secure such claim; that in truth Saunders had no claim or lien, but if it should be held that he did have, then that same was incurred by Texas Motorcar & Supply Company and defendants R. H. and J. J. Welder, and plaintiff is not liable therefor, but if it should be held that Saunders has a claim against plaintiff or a lien on the automobiles, then that plaintiff have judgment over against the ’Welders for such amount as should be decreed to be paid by plaintiff established as a lien on the automobiles. Defendants Welder filed a motion to quash the sequestration proceedings on the same grounds urged by Texas Motorcar & Supply Company. Separate answers were filed, containing general and special exceptions, general denial, and special answers. R. H. Welder, however, pleaded- that the corporation was indebted to him at the time it was dissolved. Saunders, by petition in intervention, claimed he had purchased the garage from one Wood, who in turn had purchased it from Texas Motorcar & Supply Company, and that he had acquired from Wood an unpaid account for storage of said automobiles, and had a similar account of his own. He asserted a lien thereon for such accounts, and alleged that the automobiles were not of value sufficient to pay his debt, and prayed for foreclosure and judgment against plaintiff and the Welders. The various parties filed supplemental pleadings. The court sustained the motions to quash the sequestration, and instructed the jury to return a verdict in favor of plaintiff against defendants Welder individually and as trustees of the Texas Motorcar & Supply Company, and the intervener, Saunders, for the possession of the automobiles, subject to the lien of Saunders for storage; also for Saunders in the sum of $200.00 with lien on the cars to secure the amount; also in favor of defendants Welder individually and as trustees against plaintiff and intervener on their claim for money judgment; also in favor of plaintiff against the claim of the intervener. The verdict was returned, and judgment entered in accordance therewith. Plaintiff and intervener, Saunders, perfected appeals, but Saunders abandoned his appeal, and filed briefs, replying to the brief of plaintiff.

It is contended that the court erred in quashing the writ of sequestration. At the time the writ was issued the suit -was one for damages, and not for possession of personal property. Such a suit will not support a writ of sequestration. R. S. arts. 7094-7095 ; Houston v. Booth, 107 S. W. 887. The affidavit for the writ stated that the suit was for the automobiles, but as article 7096 provides that no writ of sequestration shall issue unless a petition shall have been first filed, if the suit is in the district or county court, it appears that such petition must determine the nature of the suit, and not the affidavit for the writ. As the suit was not one for the possession of property at the tinie the writ was issued, there was no jurisdictional power to issue the writ, and a subsequent amendment of the petition cannot aid the attachment proceedings. We conclude there was no error in quashing the sequestration proceedings.

We find ourselves unable to sustain the ruling of the court on the additional ground urged in appellees’ second counter proposition, namely, that the language, “will make use of its possession of said property to injure said property,” did not constitute a substantial compliance with the statute relating to sequestration of personal property, which uses the language, “will injure such property.” As the court was correct in quashing the sequestration, he did not err in sustaining exceptions to the pleadings of plaintiff seeking to recover on the replevy bond.

The propositions urged under appellants’ so-called third assignment of error raise the issues: First, whether the court erred in refusing to instruct a judgment against the corporation; second, whether it erred in instructing a verdict in favor of R. H. Welder and J. J. Welder.

Appellant was not entitled to judgment against the corporation because it had been dissolved long prior to the trial. Receiver v. Stanton, 86 Tex. 620, 26 S. W. 615; Orange Lumber Oo. v. Toole, 181 S. W. 825-826.

It appears that long before the dissolution of the corporation the garage in which the automobiles were kept by it was sold to a man by the name of Wood. Wood sold out to intervener Saunders, and assigned to Saunders a bill for storage on the automobiles. Saunders had possession of them at the time of the trial, and asserted a claim of his own as well as the Wood claim, for storage thereof. The evidence failed to show that the Welders owed anything on stock subscriptions. The corporation was insolvent, and no property or assets thereof came into the hands of the Welders as trustees after its dissolution. The undisputed evidence disclosed that the automobiles belonged to plaintiff, and not to the corporation. True, his suit was one for conversion until some months after the dissolution of the corporation, but it cannot be held that he is the owner and at the same time that the corporation became the owner, and he became a creditor to the extent of the value of the property. If, as contended by appellant, the corporation wrongfully held the property under a contract of bailment at the time it was dissolved, and the directors negligently continued to hold the same, and therefore should be held liable for such depreciation as occurred after the dissolution, the evidence wholly fails to show to what extent depreciation took place after such dissolution. We are unable to see how a judgment could have been entered against the Welders upon any theory suggested in appellant’s pleadings or propositions, and therefore conclude that the court did not err in peremptorily instructing a verdict in their favor. What we have said in this connection also disposes of the contentions made under the fourth assignment of error.

The court erred in failing to sustain the exception urged to that part of intervener Saunders’ pleading in which he alleged a lien on the automobiles. He did not allege any contract with plaintiff for the storage of the automobiles, such as would entitle him to ¿ lien at common law. 1-Ie had no statutory lien. Malcolm v. Sims-Thompson Motorcar Co., 164 S. W. 924. The cars were left in the garage when the corporation sold the same to Wood. He did not allege that the automobiles belonged to the corporation, or that it held the same under such circumstances as would entitle it to store the same with Wood and fasten a lien on them.

The facts proven were wholly insufficient to prove that Saunders had a lien. The corporation, if it had a lien thereon for repairs made while the automobiles were in possession of Harmon, waived it by giving him possession of the same. Ford Motor Co. v. Freeman, 168 S. W. 80. The corporation unlawfully withheld the automobiles from White, and the evidence was sufficient to charge Wood and Saunders with notice of plaintiff’s rights. They could not acquire a right to charge plaintiff’s property with a lien under the circumstances. Jesse French Piano Co. v. Elliott, 166 S. W. 29; Ruling Case Law, vol. 3, p. 133.

But even if the corporation had a lien, for Harmon’s debt, and the right to charge storage as long as it was required to Bold the ears for the purpose of collecting its debt, it did not undertake to assign to Wood its claims and with them the right to hold the property, but undertook to leave the car's with Wood for storage or abandoned the same. In Jones on Liens (3d Ed.) in a note on page 983, we find the following:

“Where a bailee ends the bailment and places the bailed chattel in a storage warehouse, the warehouseman has no lien as against the real owner. Estey v. Dick, 41 Pa. Super. Ct. 610.”

It may also be doubted whether the corporation, if it had a lien for the Harmon debt, could claim a lien for storage after replevying the property. Although the replevy bpnd, under our decisions, fell with the quashal of the sequestration writ, the corporation did a thing unnecessary to protect its lien when it replevied the property. It could have asserted its rights and enforced same by suit on the original sequestration bond given by plaintiff, and it may well be doubted whether it could charge storage for such time as its holding of the property was not necessary to the protection and enforcement of a lien.

We are unable to see any theory upon which Wood and Saunders could claim a lien as against plaintiff. The corporation had no right to a lien, and Wood and Saunders, under the facts proved, are in no better position than that occupied by'the corporation.

Saunders was not awarded any judgment against any one for the $200 adjudged to constitute his claim, but his lien to secure the payment thereof was established and foreclosed. All of that part of the judgment establishing his claim and lien and foreclosing the lien is reversed, and judgment rendered that he take nothing by his suit. All assignments of error except those relating to intervener are overruled, and the judgment in all respects affirmed, except as above indicated. Costs of appeal will be taxed against intervener Saunders.
      <¡&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      tg^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    OXWELD ACETYLENE CO. v. COLE.
    (No. 5880.)
    (Court of Civil Appeals of Texas. Austin.
    March 13, 1918.)
    Appeal and Eekok <&wkey;493 — Judgment Ap-pealable — JURISDICTIONAL AMOUNT.
    In action to recover $169, in the absence of showing that the action was ever tried in justice court, an appeal from the county court will be dismissed; such amount being below the original jurisdiction of the county court.
    Appeal from Bell County Court; M. B. Blair, Judge.
    Action between the Oxweld Acetylene Company and George W. Cole, Jr. From the judgment rendered, the Company appeals.
    Appeal dismissed.
    Sam D. Ware and Clem C. Countess, both of Belton, for appellant. Jno. B. Durrett, of Belton, for appellee.
   JENKINS, J.

This is a suit for $169.05. There is nothing in the record to show that it was ever tried in a justice court. The amount involved is below the original jurisdiction of the county court.

For the reason that it does not appear that the county court had jurisdiction to try this ease, the appeal herein is dismissed.

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