author: GRAVES, J.

text:
    MAGNOLIA MOTOR SALES CORP. v. CHAFFEE.
    (No. 7290.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1917.
    Rehearing Denied Feb. 8, 1917.)
    1. Appeal and Error <§^926(1) — Expert Testimony — Bill op Exceptions — Presumption.
    Where appellant’s bill of exceptions to the admission of expert testimony over its objection does not show what examination, or that no examination, was made to test the qualifications of the witness, the presumption is that the court satisfied itself by proper inquiry as to the competency of the evidence, and the appellant cannot complain on appeal of the trial court’s action in allowing the witness to testify as an expert.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. 1279, 8735-3738, 3741, 3743.]
    2. Witnesses <®=o286(4) — Examination—Redirect Examination.
    In a suit for damages for conversion of an automobile alleged to have been retaken by defendant under the terms of the mortgage because it believed the security for the notes had become insecure, where the question of exemplary damages had been eliminated and a witness had been examined fully in regard to a telephone conversation between plaintiff’s attorney and defendant’s president, the exclusion of testimony on redirect examination that the attorney told the president if he did not turn back the car he would “see about it,” the president having replied that he could “see about it and be damned,” was not error, since the matter had been gone over already, and, if not had no material bearing upon defendant’s defense.
    [Ed. Note. — For other cases, see Witnesses, Gent. Dig. § 997.]
    3. Trial <®=>26(H6) — Instructions — Repetition.
    An instruction, directing the jury to find whether or not defendant in taking possession ot the car from plaintiff believed that the security of its notes against the automobile had been rendered unsafe and insecure from any cause, sufficiently presented the defense under the terms of the mortgage for retaking the automobile, and a requested instruction that if defendant had reason to believe, and in good faith did believe, it was insecure was justified in taking the automobile, though his debt might not, in fact, be insecure, was properly refused.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 656.]
    4. Appeal and Error <&=c1066 — Review-Prejudicial Error.
    An instruction that the first of the series of notes against the automobile was not due at the time of taking the car because the three days of grace allowed by law had not expired was not prejudicial to defendant’s defense that it retook the automobile under the terms of the mortgage.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220.]
    5. Trial <®=»295(1) — Instructions — Construction as a Whole.
    In determining the meaning of an instruction, the appellate court should consider the charge as a whole.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 703, 704, 713, 714, 717.]
    6. Trial t@^>295(12) — Instructions.
    Where the instructions in several places referred to the taking of the car, it was sufficiently plain that the “legal right” of the defendant mentioned in the instructions meant the legal right to take the car.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 716.]
    7. Judgment <§=»253(2) — Interest — Pleading.
    Where plaintiff alleged the value of the automobile in his petition and did not ask for interest and the jury gave Mm the exact amount alleged, it was error for the court to add interest in excess of the amount prayed for, since in such a case interest may be allowed as a part of the damages only where the amount claimed in the pleading is sufficient to cover the loss at the time of accrual of the cause of action and the interest.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 443, 444.]
    8. Appeal and Errori <§=»1153 — Disposition oe Cause.
    As the trial court erroneously added an amount for interest to plaintiff’s judgment, it is the duty of the appellate court,to render such judgment as should have been rendered below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4512.]
    Appeal from District Oourt, Harris County ; Wm. Masterson, Judge.
    Action by George W. Chaffee against the Magnolia Motor Sales Corporation. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Fisher, Campbell & Amerman, of Houston, for appellant. Baldwin & Baldwin, of Houston, for appellee.
   GRAVES, J.

This action was a suit for damages for conversion of an automobile brought by George W. Ohaffee, who is the appellee in this court, as plaintiff, against Magnolia Motor Sales Corporation, which is appellant in this1 court, as defendant, in which the value of the automobile alleged to have been converted was stated at the specific sum of $1,200. It was further alleged that the automobile had been converted under such circumstances, that is, force, fraud, and deception, as entitled the plaintiff to exemplary damages and such damages were claimed by him in the sum of $1,000. There is no specific allegation that plaintiff was entitled to interest upon the value of the automobile from the date of the alleged conversion to the date of the trial, nor was there a separate prayer for such interest, but only the usual prayer for general and special relief, etc. Further, the amount sought as damages was laid at the gross sum of $1,200, exclusive of the claim for $1,000 as exemplary damages. The defendant admitted the taking of the automobile, but denied that it had been done either by force or fraud or with any other purpose than to protect its security for the debt it alleged plaintiff still owed it as part of the purchase money for the automobile, to wit, some unpaid vendor’s lien purchase-money notes it still held against him on said automobile, aggregating the sum of $5S7.33, In further defense of its act in taking said automobile from the plaintiff the defendant pleaded that, while plaintiff was the owner of the automobile, it was subject to the lien of a chattel mortgage in favor of defendant, securing the above-mentioned purchase-money notes, and that these notes were due and unpaid, or at least that defendant believed that they were due at the date of the taking of the automobile, by virtue of the default of note No. 1 of this series of notes under the provisions of which defendant had the right to declare them all due on failure to pay the first one when matured, and that it had accordingly declared them all due. This'mortgage, which was pleaded by defendant as a part of its answer, provided that if at any time the holder of any of said notes should feel unsafe or insecure from any cause as to its security, which consisted entirely of the automobile, then the holder of any of said notes was authorized by the mortgage to take possession of and sell the automobile as provided in the mortgage. Defendant thus specially defended its taking of the automobile under these provisions of the mortgage, which taking occurred on April 10,1915, one day after maturity according to its face of the first one of said unpaid purchase-money notes against it, which matured April 9, 1915, there being then unexpired two of the three days of grace allowed by law after the due date of said note. Subsequent to this taking of the automobile by defendant, on May 31, 1915, pursuant to the provisions of the law in such ease, it sold said automobile at public auction for the sum of $50 and credited the same upon its debt.

The trial was before a jury, and was submitted upon special issues upon the actual value of the ear, the court having ruled that no evidence was submitted sufficient to submit the issue of exemplary damages to the jury, and thus the question of exemplary damages and the claim thereto passed out of the case, leaving plaintiff’s claim to actual damages, as above stated, at the gross sum of $1,200, the alleged value of automobile, exclusive of interest; nor did the court submit to the jury the question of whether or not plaintiff was entitled to any interest on the value of the automobile.

In response to the issues, thus submitted, the jury found the value of the automobile to be $1,200, the full amount alleged by plaintiff, and that the defendant, in taking possession of the car from plaintiff on the 10th day of April, 1915, did not believe that the security of its note (to wit, the automobile or car) had been rendered unsafe or insecure from any cause. Upon the verdict thus returned the court entered judgment for plaintiff for $659.47, which was arrived at by adding to the $1,200, found by the jury as the value of the automobile, 6 per cent, interest upon said sum from April 15, 1915, the date of the taking of the automobile to the date of the trial, said interest amounting to the sum of $46.80, making a total of $1,246.80, and by deducting from this total the amount then due by plaintiff to defendant on said purchase-money notes, aggregating $587.33, leaving the said net balance of $659.47 in favor of plaintiff.

The defendant, Magnolia Motor gales Corporation, alone has appealed from this judgment upon a number of assignments of error.

In its first assignment it contends that the court erred in allowing the witness Boyle to give his opinion upon the value of the automobile upon the ground that he had not properly qualified as an expert. Appellant’s bill of exceptions to the admission of this testimony over its objection does not show what examination, or that no examination, was made to test the qualifications of this witness. That being the case, it cannot, in this court, complain of the trial court’s allowing the witness to testify as an expert, and we overrule said assignment. We quote as the rule upon this question the following paragraph from the recent case of Taylor Bros. Jewelry Co. v. Kelley, 189 S. W. page 342:

“The fifth is that the court erred in permitting witness to testify as to value of the automobile because he was not qualified as an expert. The bill of exceptions does not show what examination, nor that no examination, was made to test the qualifications of the witnesses, and in such cases the presumption is that the court satisfied himself by proper inquiry as to the competency oí the evidence, and the mere statement that the witness had not qualified is not enough to rebut the presumption. Hardin v. Sparks, 70 Tex. 429, 7 S. W. 769.”

Under its second assignment of error appellant com plains of the court’s refusal to permit it to prove the details and words of a telephone conversation, had between its president and the attorney for appellee before the filing of the suit, about what would or would not be done in case the automobile was not returned to appellee, the substance of this conversation being that, when appellee’s attorney told appellant’s president if he did not turn back the car he would “see about it,” the president having replied that he could “see and be damned.” This telephone conversation was brought out on redirect examination, and after the witness had been fully cross-examined as to said conversation, at that time stating all that occurred with a “few embellishments.” The court sustained plaintiff’s objection to the admission of this testimony because the matter had been gone over already, in which action we think there was no error, and we overrule said assignment. Even if these details of tks telephone conversation had not been previously brought out, we cannot see that they had any material bearing upon appellant’s defense, especially in view of the fact that the question of exemplary damages had been taken out of the case.

By its third and fourth assignments appellant assails the charge of the court on the ground that it did not go far enough and did not, in addition to requiring the jury to find whether or not the defendant, prior to taking the automobile, had reason to believe its debt insecure from any cause, further tell the jury that, if defendant had reason to believe, and in good faith did believe, it was insecure, it was justified in taking the automobile, although its debt might not, in fact, be insecure, and even though its reason for thinking it insecure might not appear to the jury as a sufficient one. We cannot sustain this position. We think the general charge of the court sufficient, in that it very plainly and directly required the jury to find whether or not the defendant in taking possession of the car from plaintiff believed that the security of its notes, to wit, the said automobile or car, had been rendered unsafe or insecure from any cause, and the jury answered that it did not so believe. This submitted squarely the defense claimed by defendant under the terms of its mortgage for the taking of the automobile, and it was entitled to nothing more.

Under its fifth assignment appellant complains that the court unnecessarily charged the jury that the first of its said notes against said car was not due at the time of the taking of the car by it, because the three days of grace allowed by law had not expired. While there may have been no necessity for the court to give this charge, it is admittedly the law, and we cannot see how it could have injured appellant or in any way materially affected its defense. While it pleaded that it believed it had the right to declare all its notes due at the time it took the automobile, it relied upon its right to take the same under the terms of its mortgage, and claimed that it had done so by virtue of said right and its then belief that that had been violated by certain stated conditions surrounding appellee in his ownership and possession of the car.

Appellant further attacks the court’s charge in its sixth assignment, on the ground that it is not sufficiently clear what was meant by the terms therein used, “the legal right” of the defendant. While there may have been some typographical omission from the wording, taking the charge as a whole, as the court should do in determining its meaning, we do not think it subject to this objection. On the contrary, we think it quite clear from the context of the whole charge that “the legal right to take the car” was what was meant, and that this was so plain that the jury could not have been misled by the omission. In several places throughout the charge, in fact in the paragraph complained of, the taking of the car is referred to; and elsewhere in the charge, in pointing out the position of defendant in the ease, the court had recited that it made only two claims: Eirst, “that it believed at the time of the said taking that the first of said notes was due and payable;” and, second, “and because from the provision or clause in said mortgage, etc., that it would have the right to take possession of said automobile,” etc. Then, after disposing of defendant’s first position with reference to the notes, the court in the paragraph complained of began its instruction upon the only other claim, that is, its right to take possession of said automobile, as follows: “With reference to the other claim of defendant, you are instructed,” etc. Hence, without setting out the further features of the charge, we overrule the assignment.

This brings us to the seventh and last assignment of error complaining of the action of the court in adding the interest, as above set out, to the amount of the jury’s verdict, appellant’s proposition under this assignment being as follows:

“Where a plaintiff in a suit for conversion alleges the value of the article converted, and does not pray for interest, and where the jury gives him the exact amount alleged in his petition, it is error for the court to add interest in excess of the amount prayed for; there being no prayer for interest.”

We think this proposition states the law applicable here, and we sustain it. The facts with reference to tl}is claim for interest have been fully set out at the beginning of this opinion, and will not be here repeated. The rule as to the allowance of interest in this kind of case is well stated by Hr. Justice McMeans in Erie City Iron Works v. Noble et al., 58 Tex. Civ. App. 249, 124 S. W. at page 174, as follows:

“But appellees contend that they were and are entitled to interest upon the various items of damage pleaded by them in their cross-bill and allowed by the jury, and that when such interest is taken into consideration the amount due them far exceeds the sum for which judgment was rendered in their favor. There was no prayer for interest upon the amounts sought to be recovered by appellees in their cross-bill; but, as there was a prayer for general relief, it seems that a specific prayer for interest would not be necessary, but that interest may be allowed by way of indemnification as part ■of the damages, provided the amount claimed in the pleadings be laid in a sufficient sum to cover the loss at the time of the accrual of the cause of action and the interest thereon from that date to the time of trial. Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200; W. U. Tel. Co. v. Garner, 83 S. W. 433.”

Prom what has been said it follows that the trial court gave appellee judgment on account of this interest in the sum of $46.-80 more than he was entitled to, and it being the duty of this court to render such judgment as should have been rendered below, the judgment of the trial court will be reformed by the deduction therefrom of $46.80, that is- by reducing the $659.47 to $612.67, and, as so reformed, will be affirmed.

Reformed and affirmed.
      <te^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    SISLER et al. v. MISTROT et al.
    (No. 7304.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1917.
    Rehearing Denied Feb. 15, 1917.)
    1. Libel ahd Slander <§=»85 — Trespass 40(4) — Pleading.
    Plaintiff’s petition alleged that she purchased a suit from defendant store, and, having become dissatisfied, notified the store, which requested that she bring the suit in, and that, when she did so, defendant manager and president of the store used' toward her “violent, harsh, insulting and abusive language,” and talked in a “loud, rough and angry tone of voice,” using insulting, sneering, and rude remarks in the presence of other shoppers. Held, that the petition failed to state a cause of action, for slander on the case, in that it failed to set out the particular words used by defendant manager.
    [Ed. Note. — Por other cases, see Libel and Slander, Cent. Dig. §§ 201-204: Trespass, Cent. Dig. §§ 83, 84.]
    2. Libel and Slander <@=o2 — Intent.
    The intent with which words claimed as actionable were spoken is immaterial in the absence of any claim to exemplary damages.
    [Ed. Note. — Por other eases, see Libel and Slander, Cent. Dig. §§ 109, 110.]
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by Eula B. Sisler and another against G. A. Mistrot and another. Prom a judgment dismissing the suit, plaintiffs appeal.
    Judgment affirmed.
    A. T. Carleton, W. P. Tarver, and L. M. Ballowe, all of Houston, for appellants. S. H. Philbin, Walter H. Walne, and Baker, Botts, Parker & Garwood, all of Houston, for appellees.
   GRAVES, J.

This was a suit by Eula B. Sisler, joined by her husband, J. B. Sisler, against G. A. Mistrot individually, and Mis-trot-Curtis Company, a corporation, for damages in the sum of $2,500 for mental pain and anguish alleged to have been suffered by said Eula B. Sisler upon allegations hereinafter fully set out. The defendants filed a general demurrer to the amended petition upon which the cause was heard, which demurrer, upon a hearing, the trial court sustained, and upon plaintiffs refusing to amend, the suit was dismissed. Prom this judgment .of dismissal the plaintiff, upon proper procedure, appeals to this court. Therefore the only question for this court to determine is one of law as to whether or not the trial court erred in sustaining the general demurrer to plaintiffs’ petition, and in holding that the same did not state a cause of action, r or the purpose of determining this question we here recite fully the material allegations of the petition:

After the usual formal averments, it was alleged that the Mistrot-Curtis Company is a corporation conducting a store for the sale of ladies’ wearing apparel in the city of Houston; that G. A. Mistrot was its manager and president, and that the plaintiff Eula B. Sisler, after having purchased a certain ladies’ suit from the defendant store, and after having become dissatisfied with the suit, and after having so notified said company, was requested by one of its employes to bring the suit to the store, being informed by him that the company would arrange the matter satisfactorily. Prom appellants’ brief filed in this court, pages 4 to 7, inclusive, we copy the remaining allegations of the petition, as follows:

“We here insert verbatim those paragraphs of the petition that allege the wrongful thing said and done by the defendant Mistrot, upon which the plaintiffs base their cause of action:
“VIII. That when plaintiff Eula B. Sisler and her friend arrived at defendants’ store, they were conducted by one of the defendants’ employes to the defendant G. A. Mistrot. That upon this plaintiff advising said G. A. Mistrot, president and general manager of the Mistrot-Curtis Company, of the object of their visit to the store, the said Mistrot became very angry and he did commence to use towards this plaintiff, violent, harsh, insulting and abusive language, and the manner and mood in which this defendant talked was very threatening and insulting and rude, in that he gesticulated wildly and beat his fist, upon the counter. That he talked in a loud, rough and angry tone of voice to said plaintiff, using towards her insulting, sneering and rude remarks. That such loud, angry and sneering talk and conversation used by the defendant Mistrot towards this plaintiff was heard, and was intended by the defendant Mistrot to be heard, by the many customers then in the store, doing their Christmas shopping, as well as the numerous salesladies and other employes of the defendant company then in the store. That the plaintiff becoming very much embarrassed by reason of such conversation on the part of the defendant Mistrot, and not caring to prolong the conversation and to have the said defendant to address towards her the insulting remarks in the presence of the said customers and salesladies and other employes, did thereupon leave the said Mistrot, and with her said friend did walk towards the elevator in the store for the purpose of departing from the premises. That thereupon the said Mistrot did instruct one of his assistants in the department to deliver the package containing said suit to the plaintiff, and that said assistant, acting under the instructions from the said Mistrot, did endeavor to force this plaintiff to accept the package, and just as she and her friend did step into the elevator preparing to leave the premises, that said assistant did then and there throw said package at this plaintiff and her friend in the presence and in the sight of said crowd of Christmas shoppers in said store at the time and in the sight and in the presence of the numerous salesladies and other employés then and there in the store. That as said assistant threw the package at this plaintiff and her friend while they were in said elevator, the said assistant did instruct the negro man in charge of the elevator to deliver said package and to see that the women took it.
“IX. That all of the aforesaid loud and angry talking and acts on the part of the defendant Mistrot, and the aforesaid acts of his assistant under his direction in trying to force the plaintiff to accept said package, and in throwing said package at said plaintiff Eula B. Sisler and her friend, which all took place at a time of the day when the store was crowded with Christmas shoppers and the numerous salesladies and other employés of the defendant company. That such loud and angry talking and the acts accompanying such talking on the part of the defendant Mistrot could he heard and seen, and he intended such to be heard and seen, and such were in fact heard and seen by said Christmas shoppers, as well as by said salesladies and other employés of defendant company. That the said act of defendant company’s agent and employé, under the direction of said C. A. Mistrot, president of said company, in trying to force plaintiff to accept said package, and in then throwing said package at this plaintiff and her friend, could be seen and was intended on the part of the defendant G. A. Mistrot and said employé to be seen, and was in fact seen by said Christmas shoppers who were then in the store in great numbers, as well as by the numerous salesladies and other employés of the defendant company. And that all of said loud talking and words and acts as aforesaid caused this plaintiff Bula B. Sisler great humiliation, shame and vexation, and that she suffered mental pain, anguish and, mortification as the result thereof. That at no ’ time during the above occurrence and conversation was this said plaintiff guilty of any misconduct whatsoever; but on the contrary, these plaintiffs would show unto the court that said plaintiff was at said store at said time to amicably and peaceably transact a business matter at the special invitation and request of defendant company’s agent. Plain.tiffs would further show by reason of the unjust, unwarranted, insulting and unexpected treatment accorded to plaintiff Eula B. .Sisler as aforesaid, and by reason of the injury and shame, abuse and humiliation heaped upon her by defendant company’s agent and employé, G. A. Mistrot, in abusing and insulting and acting as he did towards her before the crowd of Christmas shoppers, as well as before the numerous salesladies and other employés of the defendant company, and by reason of the act by defendant company’s agent as aforesaid in trying to force plaintiff to accept said package, and the package being thrown at her in the presence of said crowd of Christmas shoppers, as well as the numerous salesladies and other employés of the defendant company, when it was said defendant company’s agent’s duty to plaintiff Eula B. Sisler to see that she was treated courteously and attentively while in said defendant company’s store on a business mission —all of which said acts on the part of the defendant company’s agent and employé, and on the part of the said G. A. Mistrot, were in utter disregard of plaintiff’s rights and in total violence of defendant company’s duty to said plaintiff as its customer, and that as a result of all of the aforesaid acts and deeds and words the feelings of said Eula B. Sisler were greatly hurt, she was humiliated, vexed, harassed, mortified and embarrassed, and suffered great mental pain and anguish, and was put in bad fepute before the other customers who were then in the store, as well as before the numerous salesladies and other employés of the defendant company.
“X. And these plaintiffs further show unto the court that the unjust, unwarranted and uncalled for and unexpected abusive and insulting treatment heaped upon this plaintiff Eula B. Sisler by defendant company’s agent, G. A. Mistrot, in talking in the loud, angry and insulting way that he did, and in the acts when sd talking in refusing to make the satisfactory adjustment of the controversy about the suit of clothes, and in having said package tendered to her as it was, and in having said package thrown at her when she refused to take it— all of which acts and words were done and said in the presence of and in the hearing of many customers then in the store, and numerous salesladies and other employés of the defendant company, which all of said acts and words were not only done and spoken in total disregard to plaintiff’s Etila B. Sisler’s rights and privileges as a customer of defendant company’s store, and in utter violation of defendant company’s duty to said plaintiff Eula B. Sisler, as such customer, but all of which said abusive, acts and things done in the premises aforesaid were done and caused to be done by G. A. Mistrot, president and general manager of . the Mistrot-Ourtis Oompany, willfully, maliciously and with the intent to vex, harass, embarrass and insult plaintiff Eula B. Sisler, in a manner calculated to humiliate and mortify her, and to bring her into bad repute before other customers .then in said store, as well as before the numerous salesladies and other employés of the company. That such abusive acts and things done in the premises aforesaid did in fact oppress, vex, humiliate, embarrass and mortify the plaintiff Eula B. Sisler, and did bring her into bad repute, and did put her in an embarrassing position before the other customers then in said store, as well as the numerous salesladies and other employés then in said store, and that by reason of said abuse, insult and embarrassment, this plaintiff was greatly humiliated, vexed, mortified and annoyed, becoming exceedingly nervous and sick, all of which was caused directly by the conduct of the defendants and their em-ployés, as hereinabove set out, and this plaintiff Eula B. Sisler was thereby damaged in the sum of $2,500.”

Having thus copied in full all the allegations upon which plaintiff -by her own statement based her cause of action, it will be noted that she nowhere set out either the words themselves, or their equivalent, but contented herself with the statement that the language used was “violent, harsh, insulting and abusive,” and “the manner and mood in which this defendant talked was very threatening and insulting and rude, in that he gesticulated wildly and beat his fist upon the counter; that he talked in a loud, rough and angry tone of voice to said plaintiff, using towards her insulting, sneering and rude remarks.”

As liability to plaintiff was predicated upon the use of the words alone under the particular circumstances alleged, whether this suit be termed an action for slander, or an action upon the case, it seems to us that it makes little or no difference in so far as the necessity for proper pleading is concerned. In either case we think it was necessary, under our .system, for plaintiff to state her cause of action by clear and distinct averments, and since her sole cause of action consisted in the language used in the manner and under the circumstances it was, and since of necessity this language must be construed by the application that may be made of it to the particular facts and circumstances stated, we think the pleading failed to meet these requirements. In actions of libel and slander it has been frequently held to be the general rule that the petition must set out the particular defamatory words, and that the statement of their substance and effect is insufficient. Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833; Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; 25 Cyc. 447.

While these cases were for libel or slander, as stated, we see no special difference between them and the ease at bar, in so far as the necessary pleading is concerned.

In the case of Bradstreet Co. v. Gill, 72 Tex. at page 117, 9 S. W, at pages 754, 755 (2 L. R. A. 405, 13 Am. St. Rep. 768), our Supreme Court says:

“The petition does not set out in hsec verba the very language of the libel, but pretends to give its substance and meaning. Our rules of pleading require that the petition shall set forth ‘a full and clear statement of the cause of ¡aótion, and such other allegations pertinent to the cause as the plaintiff may deem necessary to sustain his suit,’ etc. It has been many times decided by our courts that the common-law distinctions as to pleading, and its technicalities, do not prevail with us, but that a clear and logical statement of the cause of action is all that is necessary. A clear statement of the facts constituting the cause of action cannot, however, be dispensed with. The character of the suit must be the guide to the pleader, and enough must be stated to constitute a cause of action. In a suit on a note it will be sufficient to state the substance and legal effect of the note. Not so in a suit for libel. A libel suit is based on language or its equivalent. The complaint in' a libel suit should put the court in possession of the libelous matter published — the language used, with such innuendoes as are necessary to explain what was meant by the language — and to whom it applied, so as to enable the court to determine whether the words are actionable. In this case the complaint attempts to give the meaning of the words or libel only, without stating what the libel was. If the libel consisted in reporting plaintiff’s standing as a merchant, ‘in blank,’ the complaint should have informed the court and the defendant of the fact, with such explanations as to what was meant by the report as were necessary to show that the report was injurious and defamatory. This is not a case where the pleader must, from the nature of the publication, resort to a verbal description of the slanderous matter, as it would be when movements, postures, or pictures are used. Plaintiff could have stated his cause of action as it was, in clear terms. He has not done so. It is not sufficient, in this kind of a suit, to state the substance of the language used, or its meaning. We believe the general demurrer ought to have been sustained. See Townsh. Sland. and Lib. pars. 329-335, inclusive.”

We think the rule there stated applies with equal force here, especially since from the nature of this case it was unnecessary to resort to any verbal description of the language used, as is the case where movements, postures, or pictures are used, because here the language was used directly to the plaintiff herself, and she must have known exactly what it was, and could, by pleading it just as spoken to her, have afforded the court the opportunity of considering the words, together with all the facts and circumstances under which they were spoken, and of determining whether or not they were, under such detailed and fully stated circumstances, actionable, or even “violent, harsh, insulting, abusive, loud, sneering and rude,” as alleged by her; but this she did not do. Was the court, under these circumstances, in position to determine whether or not such unstated words were actionable, or was it bound to accept her mere statements that they were? We think it could not properly do either. The following authorities hold that the petition must set out the libelous and abusive words: Cook v. Cox, 3 Maule & S. 110; Harris v. Ware, 4 C. P. Div. 128; O’Donnell v. Nee (C. C.) 86 Fed. 915; Gendron v. St. Pierre, 72 N. H. 400, 56 Atl. 915; Webster v. Holmes, 62 N. J. Law, 55. 40 Atl. 778; Kirby v. Martindale, 19 S. D. 394, 103 N. W. 648, 9 Ann. Cas. 493; Crowell v. Schneider, 165 App. Div. 690, 151 N. Y. Supp. 160; Townshend, Slander and Libel (4th Ed.) 329. |

It has further been long held in Texas that the general demurrer does not admit the mere views and opinions and conclusions of the pleader, but only the pertinent and well-pleaded facts, and that the “petition should state the plaintiff’s cause of action by distinct averments, and not leave it to the court to deduce * * * one fact from the statement of another.” Malone v. Craig, 22 Tex. 609; Heil v. Martin, 70 S. W. 430; Ball v. Texarkana Water Corporation, 127 S. W. 1068; Wood v. Evans, 43 Tex. 175; Ewing v. Duncan, 81 Tex. 231, 16 S. W. 1000.

Neither litigant here has cited this court to a single case allowing recovery for words or language — not actionable per se — where the exact words or their equivalent, taken together with the actions and circumstances under which they were spoken, were not set out by distinct averments, nor have we independently found such a case.

But aside from the insufficiency of the pleading, and coming to a discussion, of the merits of the case as presented by appellant, we find her exact contention epitomized in only two propositions, as follows:

First: “An allegation of defamatory words, willfully and maliciously spoken to a person, at a time and under such circumstances as to produce mental suffering, sufficiently states a cause of action.”
Second: “Damages can be recovered for mental pain and suffering, unaccompanied by physical injury, when the wrongs complained of are willful and malicious, intended 'by the wrongdoer to wound the feelings and produce mental ’anguish and suffering, or from which such results should reasonably be anticipated as natural consequences.”

In support of this first proposition appellant cites the following authorities: Davidson v. Lee, 139 S. W. 907; Telegraph Co. v. Bowdoin, 168 S. W. 2; Odger on Libel and Slander, pp. 88-91; Reid v. Providence Journal Co., 20 R. I. 120, 37 Atl. 637; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420; Young v. McRae, 3 Best & S. 264; Lynch v. Knight, 9 H. & L. Cas. 589. While in support of her second proposition she cites the following authorities: Railway Co. v. Luther, 40 Tex. Civ. App. 517, 90 S. W. 44; Davidson v. Lee, 139 S. W. 907; Perkins Bros. v. Anderson, 155 S. W. 556; Telegraph Co. v. Bowdoin, 168 S. W. 2; Cooley on Torts (3d Ed.) vol. 1, p. 93.

Before applying these eases to the position appellant takes, sufficient recurrence to her pleadings must be had to note that she nowhere alleges assault, or attempted assault, imprisonment, or bodily restraint, physical injury, or fear of physical injury, or, as far as we can determine, the violation of any other legal right or obligation.

Testing the case thus made- by appellant by the principles announced in the cases she cites, we do not think they sustain her contention. The case of Davidson v. Lee, 139 S. W. 904, cited under both propositions, and decided by this court in an opinion by Chief Justice Pleasants, was an action for both actual and exemplary damages based upon both false imprisonment and actual assault, in which the plaintiff had been locked in a room, and at the point of a drawn pistol, held under bodily restraint for a continued length of time, and shoved and pushed about the room, and while in this situation told:

“Lee, you are not an honest man. * * * You will not leave. You will pay me before you got out of here, or I will kill you. * * * Lee, you are a dishonest scoundrel.”

Appellant quotes as authority for her position the following part of that opinion:

“The rule that damages cannot be recovered for mental suffering unaccompanied by physical injury is not applicable when the wrong complained of is a willful one intended by the wrongdoer to wound the feelings and. produce mental anguish and suffering, or from which such result should be reasonably anticipated, asi a natural consequence.”

But we think she misapplies, if she does not misapprehend, the court’s meaning in that opinion. It must be additionally noted at this point that appellant did not seek exemplary damages in her suit; while, as stated, such damages were claimed in the Davidson v. Lee Case, and it is evident that the court was referring to that element of damage in the paragraph quoted, because it is well settled by a long line of authorities that the intent with which words are spoken, claimed as actionable, is immaterial in the * absence of any claim to exemplary damages. Belo & Co. v. Smith, 91 Tex. 221, 42 S. W. 850; King v. Sassaman, 54 S. W. 304; Birmingham R., L. & P. Co. v. Coleman, 181 Ala. 478, 61 South. 890; Sedgwick on Damages (9th Ed.) par. 46a; Townes * on Torts.

Moreover, the court in using the words “wrong” and “wrongdoer” quite evidently had in mind and was discussing some such legal wrong as had been perpetrated by the plaintiff in that case, that is, false imprisonment, assault, and bodily restraint, and that it did not intend to lay down the broad rule contended for by appellant as stated in her second proposition here.

The next case cited by appellant under both her propositions is Telegraph Co. v. Bowdoin, 168 S. W. 2. In this case also there was both an actual assault and the following insulting words:

“Get out of here, you poor white trash; you ain’t nothing but ignorant fools,” etc.

So in Reid v. Providence Journal Co., 20 R. I. 120, 37 Atl. 637, the action was for libel based upon the publication of an article in a newspaper, which was, of course, fully set out in the petition; the court thus having the exact words before them, together with the attending circumstances, as set out in the innuendo pleaded by plaintiff in explanation of the application and of its effect, held that the words were not defamatory, and for- that reason sustained defendant’s demurrer to the petition; we therefore do not think that case upon the facts necessary to its decision sustains the contentions of appellant here, but appellant no doubt cites it because of the following paragraph appearing near the close of the opinion on page 124 of 20 R. I., on page 638 of 37 Atl., to wit:

“We think it may be safely said that any words, if false and malicious, imputing conduct which injuriously affects a man’s reputation, or which tends to degrade Mm in society, or bring him into public hatred and contempt, are in their nature defamatory, and either actionable per se or may be made actionable by proper innuendoes, or by alleging and proving special damage, and that words which are not in their nature defamatory, while, perhaps, if false' and malicious, or if used by a person who knows, or ought to know, that special damage will follow, _ and such damage does in fact follow, an action on the case may he maintained, whatever the nature of the words (Odger, supra, 88-91; Young v. McRae, 3 Best & S. 264; Lynch v. Knight, 9 H. L. Cas. 589), yet cannot be made the basis of an action for libel or slander.”

This quotation seems to sustain the contention of appellant in the case at bar, and cites the same cases, to wit, Odger on Libel and Slander, pp. 85-91; Young v. McRae, 3 Best & S. 264; Lynch v. Knight, 9 H. & L. Cas. 589; but, as stated, this declaration was unnecessary to the determination of that case, the court already having held the words not defamatory, and for that reason not actionable, hence was dictum, and, as such, we believe, was out of harmony with the great weight of authority upon this question; that it is dictum is quite clear from the fact stated, that the court had already decided, a wholly different case.

In appellant’s next case (Perkins Bros. Co. v. Anderson, 155 S. W. 556), the plaintiff, a lady, was arrested upon a> public street by defendant’s deetive, who further committed an assault by forcibly taking from her and searching her handbag, and then imputed to her theft of articles from a store she had just left. This and the other cited cases in which there was an actual assault, though not battery, or perhaps other violated legal rights is ruled by the well-settled doctrine that damages in such cases may be recovered for pain and mental distress. Telegraph Co. v. Bowdoin, 168 S. W. 2; Leach v. Leach, 11 Tex. Civ. App. 690, 33 S. W. 703; Id., 93 Tex. 666; Lonergan v. Wm. Small & Co., 81 Kan. 48, 105 Pac. 27, 25 L. R. A. (N. S.) 976.

In Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420, which case is cited, quoted from, and relied upon by both litigants here, the action was for damages for defamatory words alone, spoken to others about plaintiff and by them repeated to him; the court, in denying a recovery, says:

“It would be highly impolitic to hold all language wounding the feelings and affecting unfavorably the health and ability to labor, of another, a ground of action, for that would be to make the right of action depend often upon whether the sensibilities of a person spoken of are easily excited or otherwise, his strength of mind to disregard abusive, insulting remarks concerning him, and his physical strength and ability to bear them. Words which would make hardly an impression on most persons, would be thought by them, and should be by allj undeserving of notice, might be exceedingly painful to some, occasioning sickness and an interruption of ability to attend to their ordinary avocations. There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages; and a clear and wise one has been fixed by the law. The words must be defamatory in their nature, and must in' fact disparage the character.”

Then G., C. & S. F. Ry. Co; v. Luther, 40 Tex. Civ. App. 417, 90 S. W. 44, is citéd. This action arose from a negro woman, in the employ of the railway as a waitress in charge of the ladies’ waiting room in one of its depots, having an altercation with plaintiff, a white lady, calling her a liar, and standing right over her, shaking her finger in her face, and looking vicious and angry, and completely terrifying the plaintiff. In addition to the tort thus committed, the railway company was under the additional well-recognized duty of protecting its passengers against assault and insult from its own servants, because of its contract to carry its passengers safely and give them decent treatment en route. Thompson on Negligence, par. 3186; Elliott on Railways, par. 2579; Dillingham v. Russell, 73 Tex. 51, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Railway Co. v. Franklin, 44 S. W. 702.

After thus reviewing the various cases cited by appellant, we must conclude that the principles of law therein stated, when applied to the facts of her case, furnish no authority for the broad rule thus contended for by her; especially when she locked up the real gist of her cause of actibn, the words themselves, within her own consciousness and thus herself denied the court the opportunity —afforded in every case she cites — of considering and determining whether these words, taken, considered, and construed under all the facts, acts, and circumstances furnishing a setting for them were of the kind, character, and effect alleged; and this unafforded opportunity was, we think, the right of the court and jury — to say nothing of the defendant’s right to be apprised of the specific cause of action he must defend— whose province and duty it was, not plaintiff’s, to decide whether or not any actionable wrong had been done her.

Not every infraction of the rules and canons of politeness, courtesy, good breeding, and gentlemanly conduct constitutes an actionable or .legal wrong. If it were so, unfortunately our courts would doubtless very soon be choked with imaginary claims based upon the personal condition or equation as the sole element of damages, that is, individual sensibilities, such as susceptibility to excitement, nervousness, worry, or fright, where there was neither libel nor slander, assault, nor attempted assault, physical injury, nor the fear of it, imprisonment, bodily restraint, arrest, nor the threat of any of them, negligence,, the violation of any other legal right,' nor finally, the use of any disclosed and specific spoken words.

We cannot become, as we view it, the first court to open this hitherto closed door. In support of our conclusions we collate the following authorities: Williams v. Riddle, 145 Ky. 459, 140 S. W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151; Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 South. 328, L. R. A. 1915F, 516; Sanders v. Edmondson, 56 S. W. 611; G., C. & S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866; Townshend on Libel and Slander, §§ 329 to 335, inclusive; Cooley on Torts, § 160; Cyc. Assault and Battery; Kramer v. Ricksmeier, 159 Iowa, 48, 139 N. W. 1091, 45 L. R. A. (N. S.) 928.

Having thus determined that the able trial judge did not err in sustaining the general demurrer to plaintiff’s petition, and in dismissing her suit, that judgment will be here in all things affirmed.

Affirmed.
      <Sfc»For other cases see Same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    ANDREWS v. ROBERTS et al.
    (No. 5766.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1917.)
    1. Carriers <&wkey; 177(3) — Loss and Damage to Goods — Interstate Commerce.
    The initial carrier of ah interstate shipment is liable for damages, where the undisputed evidence shows a contract for through shipment, delivery to the carrier in good condition, and arrival in bad condition at destination, where such shipment was unaccompanied by shipper or his representative.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 779-789.]
    2. Railroads <@=^211 — Receivers—Actions— Pasties.
    Judgment for loss and damage to shipment cannot be rendered against a railroad company, where the evidence shows that railroad was being operated by a receiver at the time the contract of shipment was made as well as at the time of trial, but judgment can be rendered only against the receiver.
    3. Railroads ®^210 — Receivers — Doss or Damage oe Shipment — Interstate Commerce.
    Where receiver of railroad contracted to transport shipment within state, freight charges payable at destination, and before delivery of shipment destination was changed and bill of lading issued for transportation of shipment beyond state, the receiver was liable as initial carrier of interstate commerce; it being within his authority to so modify original contract.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 606-701.]
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Action by W. R. Roberts and others against Frank Andrews, receiver, and another. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered in part, and in part affirmed.
    Claude Pollard, of Houston, and Robt. W. Stayton and David M. Picton, Jr., both of Corpus Christi, for appellants.
   SWEARINGEN, J.

Appellees, W. R. Roberts and 21 others, joined in a suit as plaintiffs against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, as receiver for the above-named railroad, to recover damages to a' carload of cucumbers shipped from Sinton, Tex., through to Milwaukee, Wis., and alleged for cause of action that they appointed and authorized W. R. Roberts to ship the commodities and take bill of lading in his name and to sell for them, and further alleged that on June 3, 1914, they delivered to the agent of the said receiver at Sinton, Tex., 690 crates of cucumbers in good condition; that same were received by the receiver for through shipment to Milwaukee, Wis., that the receiver, through its agent, delivered to W. R. Roberts, the shippers’ agent, bill of lading by which it was agreed to transport the cucumbers through to Milwaukee, Wis., and deliver them to the consignee named in bill of lading; that the cucumbers arrived in badly damaged condition, by reason of which damaged condition loss was suffered.

Appellant answered by demurrer, exceptions, and general denial; admitted that Frank Andrews became receiver of the railroad about July 5, 1913, and was such at the time of the trial. Appellant further alleged that the shipment was received for shipment to Ft. Worth, Tex., by contract which limited liability to damage done on the St. Louis, Brownsville & Mexico Railway, making the issue by its pleadings that the bill of lading for shipment to Milwaukee, Wis., in lieu of bill of lading previously issued for shipment to Ft. Worth, Tex., was without consideration, ,was a gratuity, and that the receiver did not have possession of the goods at the time interstate hill of lading was issued.

The undisputed facts in evidence show that the cucumbers were delivered to tbe receiver at Sinton in good condition on June 3, 1914, and were received by the receiver and loaded in one of the receiver’s cars; that an intrastate hill of lading was delivered by the receiver’s agent to W. R: Roberts contracting to ship to Ft. Worth to W. R. Roberts’ consignee; that the receiver afterwards, before the goods were delivered at Ft. Worth to the consignee, executed and delivered to W. R. Roberts, at his request, an interstate bill of lading for the same cucumbers, agreeing to ship them to Milwaukee, Wis., that W. R. Roberts was required to and did surrender the intrastate or first bill of lading before the interstate bill of lading was delivered to him. _

The evidence further shows that the cucumbers were delivered at destination, Milwaukee, Wis., in a badly damaged condition. There is also evidence to sustain the finding of the jury that the damage amounted to the sum for which verdict was rendered.

The court instructed the jury as follows:

“In this ease you are instructed to find for the plaintiffs, and assess their damages at a sum equal to the difference between the market value of the cucumbers in question in the condition in which they did arrive at their destination, to wit, Milwaukee, Wis., on the 12th day of June, 1914, and the market value of said cucumbers at their said destination on said date had said cucumbers arrived there in the condition in which they should have arrived.”

By the first assignment it is contended that the court erred because it refused to submit the case to the jury upon special issues as appellants requested.

By the second it is contended that the court erred because it instructed the jury to find a verdict for appellees.

Neither of these assignments can be sustained. The pleading and the undisputed evidence show a contract for through shipment, a delivery of the cucumbers in good condition, and a redelivery at final destination in a badly damaged condition. No one accompanied the shipment for the shipper. Under these circumstances the law holds the carrier liable for such damages as the jury finds. 4 Elliott on Railroads, § 1454, note 11; T. & N. O. R. Co. v. Drahn, 157 S. W. 282. Where there is no issue to submit to the jury, it is proper to give a peremptory instruction to the jury, and, of course, under these circumstances, proper to refuse to submit unnecessary issues.

The third assignment is sustained. The judgment should not have been rendered against the St. Louis, Brownsville & Mexico Railway Company; for the evidence shows that the property was being operated by the receiver Prank Andrews, at the time the contract of shipment was made and at the time of the trial. Judgment should have been in favor of the St. Louis, Brownsville & Mexico Railway Company, and against the appellant Prank Andrews. Ft. Worth & Rio Grande Ry. Co. v. Ballou, 174 S. W. 337.

The sixteenth and seventeenth assignments present the proposition that the receiver could not issue an interstate bill of lading contracting to transport the cucumbers from Sinton to Milwaukee, Wis., and be bound as any initial carrier by the federal interstate commerce statute, because at the time the interstate bill of lading was issued the car of cucumbers had already been transported to a point beyond the line of railway operated by the receiver. The freight had ndt been delivered at Pt. Worth nor to the consignee, and was therefore in possession of the receiver. No freight charge had been paid in advance, but it was agreed in both shipping contracts that the charges should be collected upon delivery at destination. So far as the evidence discloses, the proper charges were paid at destination. The receiver had the authority to make the interstate contract and cancel the intrastate contract. It did so, and is bound thereby. This is not a ease of diversion, but of through shipment under a through bill of lading.

All the assignments are overruled, except the third, which is sustained.

There was no dispute about the fact that the receiver, Prank Andrews, was in charge of and operating the railway at the time of the contract for transportation and injury alleged by appellees, and was up to the time of this cause.

Por the reasons mentioned, the judgment of the trial court, as between appellees and the appellant, the St. Louis, Brownsville & Mexico Railway Company, is reversed, and judgment here rendered for the St. Louis, Brownsville & Mexico' Railway Company; in all other respects the judgment is affirmed.

Reversed and rendered in part, and affirmed in part.
      (ffi=s>Por other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      cgrwFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    PLUMMER et al. v. McLAIN et al.
    (No. 654.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 8, 1917.
    Rehearing Denied March 1, 1917.)
    1.Boundaries <&wkey;3(3) — Monuments as Con-trollin© Courses and Distances.
    Where mining claims were' actually surveyed on the ground and the four corners of each established, and from comparison of three of the four original corners made at the time the land'was originally surveyed with the description in the patents when applied to the ground, a latent ambiguity arises, the monuments placed by the surveyor must control the erroneous calls in the patents.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 6-19.]
    2. Trespass to Try Title &wkey;>47(l) — Correction of Patent.
    Plaintiff was not required to resort to equity to correct errors in field notes before recovering in trespass to try title, but the erroneous calls made by mistake may be corrected so as to conform the location to the ground actually covered, marked, and identified when the locations were made.
    [Ed. Note. — Por other eases, see Trespass to Try Title, Cent. Dig. § 69.]
    3. Limitation op Actions &wkey;>19(2) — Recovery oe Land — Reformation of Patent.
    A prayer that field notes be corrected would not deprive the suit of its character as one for the recovery of real estate or cause the four-year statute of limitations to apply to such prayer.
    [Ed. Note. — Por other cases, see Limitation of Actions, Cent. Dig. § 74.]
    4. Mines and Minerals <&wkey;43 — True Boundary Lines — Notxoe.
    If the patents held by plaintiff embrace the lands in defendant’s possession, although the patents contain erroneous calls for courses and distances, the defendants would be charged with notice of the true boundary lines.
    [Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. §§ 125-129.]
    5. Mines and Minerals <&wkey;44 — Patents— Collateral Attack.
    Plaintiff’s claim to the. land cannot be defeated by a collateral attack upon the validity of the application for grant of mineral land pursuant to which such patents were issued.
    [Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. § 130.]
    Appeal from District Court, Culberson County; Dan M. Jackson, Judge.
    Trespass to try title by Louis R. McLain and others against P. C. Plummer and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    J. A. Harrison, of Beaumont, Joe Irby, of Van Horn, J. W. Parker, of Pecos, Jake Welters, of Houston, and R. M. Reed and Hud-speth, Dale & Harper, all of El Paso, for appellants. Goldstein & Miller, Turney & Burges, and E. M. Whitaker, all of El Paso, for appellees.
   WALTHALL, J.

This is an action of trespass to try title, which was brought by appellees against appellants and in which judgment was rendered for the plaintiffs. The cause was tried on appellees’ second amended original petition, in which they alleged that they own and have patents from the state of Texas to the three tracts of land in question, situated in Culberson county, describing each tract by metes and bounds, and designated, respectively, as the Kyle mining • claim,’ . the Dott mining claim and the Virginia mining claim, each containing about 160 acres of land. Appellees allege:

That “an error exists in some of the calls of the field notes of the particular description of said premises by metes and bounds, inasmuch as that in the patent to the said Kyle mining claim said land herein described as first tract is described as follows: [Then follows the description of the three tracts as they are described in the patents: First tract: That certain 160 acres'of land situated and being in Oulberson county, Tex., and known as the Kyle mining claim, situated about 165 miles northeast of the county site of El Paso county, Tex., and described by metes and bounds as follows: Beginning at the S. W. corner of said Kyle mining claim, said corner being 36,142 vrs. E. and 7,165 vrs. S. from the S. W. corner of block 61, Tp. 2, T. & P. surveys, established by Paul McCombs, said beginning point being in the west line of block No. 45, public school land, as established on the ground; thence north along said line of said block 45, public school land 950.4 vrs. to stake and stone mound for N. W. corner of this survey; thence E. 950.4 vrs. to stake and rock mound for N. E. corner of this survey; thence S. 950.4 vrs. to rock mound for S. E. corner of this survey; thence W. 950.4 vrs. to place of beginning. Second tract: That certain other tract of land containing 160 acres, situated and being-in the county of Culberson, state of Texas, and being known as the Dott mining claim, situated about 160 miles northeast of the county site of El Paso county, Tex., and described by metes and bounds as follows: Beginning at a stone mound the S. E. corner of the Dott mining claim, said comer being 32,723 vrs. E. and 9,401 vrs. S. from the S. W. comer of block 61, Tp. 2, T. & P. Ry. Co. surveys as established by Paul McCombs; thence N. 950.4 vrs. to stone mound for N. E. comer of this survey; thence W. 950.4 vrs. to stone mound for N. W. corner of this survey; thence S. 950.4 vrs. to a stake and rock mound for S. W. corner of this survey; thence E. 950.4 vrs. to place of beginning. Third tract: Also that certain other tract of land containing about 160 acres situated in Culberson county, Tex., and known as the Virginia mining claim, land particularly described as follows, to wit: Beginning at a cedar stake and rock mound the N. W. corner of the Virginia mining claim, said corner being 29,373 vrs. E. and 11,736 vrs. S. from the ,S. W. comer of block 61, Tp. 2, T. & P. Ry. survey as established by Paul McCombs; thence -S. 9° 50' W. 844 vrs. to a 4x4 pine post and rock mound for the S. W. comer of this survey; thence ,S. 80° 10' E. 1,031 vrs. to a rock mound for S. E. corner of this survey; thence N. 9° 50’' E. 844 vrs. to a stake and rock mound the N. E. corner of this survey; thence N. 80° 10' W. 1,031 vrs. to place of beginning — following which, appellees allege:] That said calls of the particular descriptions by metes and bounds in each of said patents are erroneous in describing said lands by metes and bounds as they are described in said patents, and in not locating and describing said lands as same are respectively described herein as ‘first tract,’ ‘second tract,’ and ‘third tract,’ and which errors in said several patents your petitioners show were errors of the surveyor, either in making out his field notes or in locating the true corners and boundaries of said throe tracts of land hereinbefore described at the time same were surveyed for patents, and which corners of each of said tracts of land and boundaries thereof were located upon the ground when said surveys were made for said patents and at the time said patents were issued, and had been so located from, to wit, August 6, 1895, the date of application of petitioners’ predecessor in titles, to wit, John B. Stone, to purchase said mining claims under Acts of Í895, and were of great notoriety, and your petitioners show that said patents vest in them, and it was the intention of the state of Texas to vest in them the title to said Kyle mining claim, to said Dott mining claim, and to said Virginia mining claim, which, as aforesaid, they allege had been surveyed out on the ground and monuments erected at each of the corners thereof at the date .of the original application to purchase said land, and which corners and boundaries thereof and monuments designating the same are still intact, and have been ever since their location; that plaintiffs’ predecessor in title, John B. Stone, caused each of said mining claims to be surveyed out under the act of 1895, and the field notes thereof, together with the plat thereof, to be filed in the general land office of the state of Texas, and which surveys on the ground embrace the identical land described as ‘first tract,’ , ‘second tract,’ and ‘third tract’ in this petition; and plaintiffs say that it was the intention of the state of Texas, as disclosed by said patents, to embrace, and each of said patents to them respectively for the said Kyle mining claim, the said Dott mining claim, and the said Virginia mining claim do embrace, said lands described herein as ‘first tract,’ ‘second tract,’ and ‘third tract,’ and that said error in said calls of said patents should be so corrected as to conform to said three several mining claims, as aforesaid, and herein particularly described.”

Then follow the allegations that petitioners, under said patents, have not claimed or taken possession of any public lands other than said three claims, but have been in full possession of said three tracts from the time of their said application to purchase said three tracts; that appellants had full knowledge and are charged with notice of appellees’ claims to said lands as described in the petition, and had said knowledge and notice long prior to the inception of any rights on their part to said land or any part thereof. Appellees alleged an unlawful •entry by appellants, and that they were threatening and preparing to make excavations, borings, and drillings upon said land for minerals contained thereon and to remove same therefrom. Appellees prayed . that they have judgment for the title and possession of said lands, for writs of restitution, for injunction, and that their patents be corrected as aforesaid, that appellants’ claims to said lands be canceled and held for naught, and that the cloud thereby cast upon their title to said lands be removed, for costs, and for relief legal and equitable, general and special.

The appellants filed a general demurrer, general denial, a plea of not guilty, and especially pleaded that the plea for the correction of the field notes or calls in ap-pellees’ three patents were barred by the statute of limitation of four years.

The ease was tried before the court without a jury. At the request of appellants, the court filed its findings of fact and conclusions of law. The findings of fact are as follows:

“I find that the land in controversy was patented by the- state of Texas to the plaintiffs, D. R. McLain, T. Stonewall Kyle, and St. Julien Ravenel, by three separate patents, all dated July 10, 1907, and that said plaintiffs have never parted with their title to said'land as vested in them by said three separate patents, and that they are now the owners in fee simple of the lands sued for herein and described in plaintiffs’ second amended original petition, and as the same is described in the judgment entered in this case.
“(2) I find that by application dated August 6, 1895, John B. Stone applied to the state of Texas to purchase the land in controversy in this suit, the same being known as the Virginia, Dott, and Kyle mining claims, and that accompanying his said application was a description of said three tracts of land or mining claims, together with plat showing the location of the same made by A. H. Parker, county surveyor of El Paso county, Tex., who surveyed out' said three mining claims for said Stone as required by law, and for his application to purchase same, together with his obligation to purchase the same, said application being made under the act of 24th Legislature and being S. B. No. 175, approved on the - day of -, 1895, and that accompanying said application the said John B. .Stone made, delivered, and filed with the commissioner of the general land office his obligation to purchase said three mining claims, and that his said application and obligation was in all things in conformity with said act, and that the said John B. Stone and his assignees, the plaintiffs in this case, fully complied with said act and paid to the state of Texas the entire purchase price for said tracts of land, and 1 further find that at the time said mining claims were surveyed out by the said A. H. Parker, county surveyor of El Paso county, Tex., to wit, when said Stone made his application to purchase same, the same were actually surveyed out on the ground and the four corners of each of said tracts of land were actually established on the ground by rock and earth monuments, which in some cases were built around timber posts, and I further find as respects each of said mining claims that three of the original monuments as thus established by the said Parker still remain on the ground and in their location as made by the said Parker, and I find as to each of said tracts of land that three of the original monuments still exist on the ground and as made by the said Parker, and that said monuments as thus established and made by the said Parker were clearly identified, and that the ground as surveyed and so marked by the said Parker was and is the identical land claimed by plaintiffs in this suit and as described in their second amended original petition and as described in the judgment entered in this suit.
“(8) I find that the said John B. Stone conveyed to the plaintiffs in this suit long prior to the institution of this suit and long prior to the issuance of said three patents for said land all of his right, title, and interest in and to the land sued for herein.
“(4) I find that the plat of said land made by the said A. H. Parker, county surveyor of El Paso county, Tex., shows said three mining claims, and being the land sued for herein, to be located on the ground at the places claimed by plaintiffs in their second amended original petition filed in this case, and which is the identical land described in the judgment entered in this suit.
“(5) I find that it was the primary purpose of the state of Texas in issuing said three patents to the plaintiffs in this suit to extend title to them to the said three mining claims, to wit, the Kyle, Virginia, and Dott, which said three mining claims I find to be the identical land de-seribed in plaintiffs’ second amended original petition and being the identical land adjudged to plaintiffs in this suit and described in the judgment entered in this suit, and that the patents did, in fact, embrace and vest title in plaintiffs to the identical lands adjudged to them by decree of this court.
“(6) I find from the evidence that the location of said three mining claims sued for herein, to wit, the Kyle, Dott, and Virginia, was actually located on the ground at the places claimed by plaintiffs in their second amended original petition, and being the identical land adjudged to them by the decree in this case, and that the location of the said three tracts of land was established by said Parker, who surveyed'the same out for John B. Stone prior to the time the latter applied to purchase the same as aforesaid, and that the monuments of the four corners thereof were established on the ground, and that the locations of said three mining claims as thus made have been of great notoriety in that section of the country since they were so located by the said Parker, and that the land thus inclosed in said surveys was well known respectively as the Kyle, Dott, and Virginia mining claims.
“(7) I find that the northwest corner of the Kyle mining claim as the same was actually surveyed out and located on the ground and established on the ground by the said Parker is at a point between 750 and 800 varas less than the distance called for by the said Parker from the southwest comer of block No. 61 of the Texas & Pacific Railway Company survey in El Paso county, Tex., in his field notes accompanying the application of the said Stone to purchase said land, that is to say, that the distance between the northwest corner of the Kyle mining claim and the southwest corner of block 61, Texas ‘ & Pacific Railway Company survey, at that time in El Paso county, Tex., is between 750 and 800 varas less than the distance called for by; the said Parker in his field notes of the said Kyle mining claim, and I also find that approximately the same discrepancy exists as to the distance between the northwest corner of the Dott mining claim and the southwest corner of block 61, Texas & Pacific Railway Company survey at that time in El Paso county, Tex., and now in. Culberson county, Tex., but I find that in each case the land actually surveyed by the said Parker can be identified from the monuments established by him on the ground and called for by him in-his field notes of said mining claims, and that the calls for said monuments is of greater weight, more certain, and entitled to more dignity than the call for distance in said two mining claims from the southwest corner of block 61 of said Texas & Pacific Railway Company survey now in Culberson county, Tex., but in El Paso county, Tex., at the time the lands in question were originally surveyed and at the time the same were patented.
“(8) I find that the lands in controversy in this suit as well as the southwest corner of block 61 of the Texas & Pacific Railway Company survey are now in Culberson county, Tex., but where in El Paso county, Tex., at the time the said John B. Stone applied to purchase the same and at the date the patents were issued on the same.
“(9) I find that plaintiffs’ three separate patents to said three tracts of land actually embraced the land sued for by plaintiffs herein and the land described in the judgment entered in this suit.
“(10) I further find that all the defendants in this suit disclaimed in open court any interest or right in the Virginia mining claim.
“(11) I find that the defendants have filed upon the lands claimed by plaintiffs in this suit under the mineral act of 1913.
“(12) I find that defendants had notice of plaintiffs’ claims to the land sued for herein at the time they filed upon the same.
“(13) I find that the defendants had knowledge of such facts which, if followed up with due diligence, would have given them notice that plaintiffs claimed the land sued for herein and described in the judgment entered in this suit.
“(14) I find that plaintiffs have paid all taxes due on the lands sued for herein from the date of their purchase of the same..
“(15) I find that the state of Texas has recognized plaintiffs’ right to the land sued -for herein since the date of the original application of John B. Stone to purchase the same.
“(16) I find that the sections in block 45, public school lands, Culberson county, have never-been surveyed out, established on the ground by any official survey by either the state or any county of the state.”

Judgment was entered for appellees for the lands sued for, describing the said lands as first tract, second tract, and third tract, describing each by metes and bounds, and correcting the calls in each of the patents for distance from block 61, Texas & Pacific Railway Company’s survey to conform to the description in the judgment and to conform to their location on .the ground, and made the temporary injunction ' theretofore granted permanent, restraining the removal of any of the minerals from said lands. Appellants excepted to the judgment and gave notice of appeal.

Appellants, in their first and additional assignment of error, insist that the court was in error in entering judgment correcting the field notes contained in the patents issued in 1907, and in correcting the field notes of the survey made in 1895, and contained in the application to purchase filed in the general land office, and in rendering judgment for appellee for lands described neither in the survey made in 1895, nor described in the patent issued in 1907, the appellants having no title in the fee to the land, but having a mere leasehold interest from the state, the state, the owner of the fee, not being a party to the suit. The proposition contended for under these assignments is that the court was without jurisdiction to enter judgment divesting the state of title to the lands described in patents, the state not being a party to the suit. The propositions under the assignment and the proposition under the additional assignment further assert that the suit is but an equitable action to correct an alleged mistake in the field notes which would he barred by four years. Appellants refer us to chapter 173, Gen. Laws 33d Leg. 1913, p. 409, relating to prospecting and developing minerals in public school lands of the state and a number of cases, as sustaining their contention. It will be noted that the appellees alleged and the trial court found that the lands in controversy were actually surveyed out on the ground at the places where the lands were adjudged to appellees, and that the original corner and monuments placed by the surveyor in locating the mining claims were identified by the surveyor and some of the witnesses, and that appellees’ patents embraced such lands. Appellees’ suit was to recover from appellants lands which they allege the state had granted to them and from which appellees had been ejected by the entry of appellants, and alleging error in the field notes in original applications for the purchases and in the patents, and asking that the errors be corrected so as to properly describe the lands as actually located on the ground. The facts having been determined by the trial court,- the court concluded as law that the call for distance in the patent was error and should be controlled by the identified corners and monuments, and corrected the calls in the field notes for distance so as to correspond with the pleadings and proof and entered judgment for the lands which the court found to have been originally actually located and embraced in the applications and patents. The applications to buy the mining claims were made in 1895, and the patents were issued in 1907. This suit was filed in 1916. Appellants’ interest in the land sued for was a leasehold under the mineral act of 1913. The state was not made a party to the suit. If the court was without jurisdiction and power in this suit, as claimed by appellants, to correct the error in the field notes so as to conform the distance called for by the surveyor in locating said claims from the established corner of block 61, Texas & Pacific survey, as claimed by appellants, and appellees be required to accept the erroneous calls for distance, the trial court would be in error in having the call for distance to yield to established and identified monuments and corners, and the lands reached by the erroneous calls for distance would not be the lands applied for by appellants’ predecessor in titles and upon which the monuments were found to have been actually placed, and appellees would not in any sense have complied with the laws regulating the sales of mineral lands of the state, and such lands would not be the lands actually bought by appellees and sold by the state.

It is true that appellees did ask a correction of the distance call in the field notes, and the judgment recited that, “the calls in plaintiff’s patent therefor being corrected accordingly,” the suit is in trespass to try title, and the court found that it was the primary purpose of the state to patent the Kyle, Dott and Virginia mining claims, and that the lands sued for and adjudged to appellees are the lands embraced in appellees’ patents. The state had sold the lands covered by the three mining claims, and one of the purposes of the suit was to locate and identify on the grounds the lands actually bought by appellees from the state. In Urquhart v. Burleson, 6 Tex. 502, the court said that it is an acknowledged rule in construing a grant that all of its parts must be taken together and supported if it can be done, and that, if this cannot be done, the principal objeet supposed to have been in the mind of the party and sought by him to be secured by obtaining the patent must prevail over all subordinate or secondary ones. In that case the court said that:

“It cannot be questioned but that the particular piece or parcel of land described was the primary objeet of the location. The lines and courses were subordinate to that object.”

In that case the courses and distances were altogether inconsistent and entirely left the premises out of the survey and grant. We think that it could hardly be questioned in this case but that the particular pieces of land upon which the croppings of sulphur were found and upon which the claims were located, staked out, worked, and purchased as mineral claims conclusively show the primary object of their locations. In Berry v. Wright, 14 Tex. 273, the court say:

“There really is no difficulty in understanding what land was intended to be conveyed. And that it should be capable of being ascertained and identified is all that is requisite to the validity of the conveyance. The falsity of a part of the description does not vitiate the deed, when from the whole the land conveyed may be certainly ascertained.”.

In Jones v. Andrews, 62 Tex. 659, in a case of trespass to try title, where a point at issue was the proper location of the north boundary line of the survey, the court say that:

The jury “were not concluded by the recital in the patent as to where the survey was begun to establish and fix it at that point, if under the whole evidence they were satisfied * * * that the true line was elsewhere. * * * Mistakes of surveyors which are flagrant and controlling in the description of boundaries, and which follow the field notes into the patent, sometimes occur, and are not necessarily fatal to the patentee, but will be corrected according to the lines which were manifestly intended to be the true boundaries. See Urquhart v. Bur-leson, 6 Tex. 502. If the other calls of the survey were found to be the most material and certain, the jury were entitled to so treat them, and to disregard, if necessary, the north boundary line as called for in the field notes, and to determine the limits of the survey from such other calls.”

It was held in the Jones v. Andrews Case that the comer of an adjoining survey, called for as a point from which the survey begins, does not necessarily control, and will yield to other satisfactory indicia as to where the true line was in fact run, and referred to Duren v. Presberry, 25 Tex. 512, in which case the facts showed that the call for the corner of another survey as a beginning corner was a mistake on the part of the surveyor, capable of correction by other objects, which were ascertained and corresponded with the calls in the grant.

The case of Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317, and the cases therein referred to, are in point, and we need not do more than refer to the case. The point at issue was the true location of the north boundary line of the Cartwright league. All lands south of that line belonged to defendants and all north to plaintiff. In that case the Supreme Court again announced the well-established rule that the footsteps of the surveyor must be followed, and referred to Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304, as stating the correct rule that should govern in conflicting calls. The court further said that the order of dignity and control in conflicting calls are: (1) Natural objects; (2) artificial objects; and (3) course and distance - — that is to say, calls for course and distance must, in case of conflict, yield to calls for natural, objects and to artificial objects.

It is the contention of the appellees that the patents, when properly construed, embrace the identical land ad judged, to them; that the primary purpose of the patents was to extend title to them to the three mining claims in question, and that the claims were actually surveyed out on the ground and the four corners of each established; that from three to four of the original corners made at the time the land was originally surveyed, and when the descriptions in the patents were applied to the ground, a latent ambiguity arose, in that the distance called for to the southwest corner of Texas & Pacific block 61 and the calls for the section corners of section 18, which had never been located on the ground, conflicted with the corners as established for the three mining claims; that the mining claims corners control the call for distance to the corner of said block 61 and the said unestablished section corners of section 18. The judgment made the distance call to block 61, and the distance call to the section corners of survey 18 yield to the established corners of the mining claims. When parol evidence was introduced, on the trial as to the said distance calls in the patents, appellees made the following admission:

“We admitted and now admit that if you give the distances called for in the Parker '[the surveyor who made the original survey locating the mining claims] field notes, and in the location of the De Shazo (field notes) that you put the land 700 varas east of where wo now contend it is. We admit this and always have.”

The De Shazo corrected field notes are the field notes embraced in the patents.

It is the contention of appellants in their brief that there is no irreconcilable conflict in any of the calls contained either in the field notes by Parker in the original applications to purchase the mining claims, nor in the De Shazo field notes in the patents, and that to locate the land as in the judgment it was necessary to ignore one call in each of the patents which call in the Kyle survey tract No. 1 is “743 varas east from the N. W. corner of section 18, block 45, public school lands.”

Appellants’ argument is that, unless in the field notes there are inconsistent calls, there is no ground for the trial court in trespass to try title to correct any error in the field notes, but that such correction must be, if at all, in a suit in equity, brought for that purpose, and in support of the proposition we are referred to Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031. The case does not support the proposition in its entirety. The court simply stated the application of the well-established rule in reference to the admissibility over objection of parol evidence to explain written contracts. The court was discussing the application of the rule stated in Urquhart v. Burleson, supra, and Anderson v. Stamps, 19 Tex. 460. In the latter case Judge Wheeler said that:

“The lines of the survey, as actually marked upon the ground, if they can be found and traced, will control course and distance. But that is where the actual survey can be found and identified as the same called for in the grant. It is not meant that, where the grant calls for certain known and established natural or artificial monuments and boundaries, these may be controlled by parol proof of a survey entirely inconsistent, and repugnant to all the calls of the grant. * * * That would be virtually to destroy the written evidence of title, and substitute parol evidence in its stead.”

The court, in the Converse v. Langshaw Case, referred to, sustained the statement of the rule in the above two cases, and said:

“But, when we attempt to apply these rules to the facts of the present case, we find a. difficulty which arises from the meagre description in the defendant’s patent.”

And, after discussing the calls in the patents in the case then before the court, the court said:

“The testimony in this case showed clearly that the call for the corners of the Martin and of the railroad surveys [the two in conflict] were the result of a mistake, and the actual survey should govern.”

There is nothing said in the opinion to the effect that, in order to have a' correction made, a suit in equity must be brought against the grantor in the instrument sought to be corrected. In the Converse v. Lang-shaw Case it was claimed that the judgment for the land described in the answer was erroneous, because the description in the judgment was the same as that in the defendants’ patent, and therefore the judgment leaves the question growing out of the conflicting calls undetermined. The court said that:

“Since this [the description of the land] could be ascertained only by resort to evidence outside of the record, the recital can hardly be held to be suflieient to aid the judgment. This is but another instance in which a suit is brought to settle a question of boundary growing out of conflicting calls in a grant in which the party claiming under such conveyance gives in his pleading precisely the same description which is found in the grant, without alleging which are the true calls, and without describing the land claimed by reference to such natural or artificial objects as will clearly identify it upon the ground. It is difficult to see that a judgment following the original description decides anything in such a case.”

The court reformed the judgment so as to embody the actual survey as it was found to be on the ground.

We are unable to see why appellees should resort to a suit in equity to correct the field notes of the patents before they would be entitled to recover in this suit, since such correction of the field notes as alleged was not sought for the purpose of enlarging the patents, nor to correct or reform them, nor of applying the corrected description in the field notes to land other than that embraced in the patents, but was to aid in the rightly interpreting the descriptions. William Carlisle & Co. v. King et al., 122 S. W. 581; Sanborn v. Crowdus, 99 S. W. 444; Arambula v. Sullivan, 80 Tex. 615, 16 S. W. 436.

The patents evidence the sale of the lands sold and located on the ground as the Kyle mining claim, survey No. 286, the Dott mining claim, survey No. 285, and the Virginia mining claim, survey No. 284, and the patents will be construed to give effect to the intent expressed, and to cover the laijds and only the lands actually sold and located on the ground.

Appellants further contend under the assignment that the four-year statute of limitation should apply. Appellees asserted title in themselves and sued to recover the lands claimed to be actually embraced in their title deeds. True, they asked a correction of distance calls, but for .tbe purpose of having the corrected calls to cover the lands as actually located and identified by monuments and corners placed at the time the lands ivere located.

We think we need not enter upon a discussion of limitation and stale demand, nor the action of trespass to try title and the character of title required to support such action. From the decisions of the courts examined by us, it is apparent that the question of limitation pleaded, depends upon the question of the nature of the suit brought. One may sue to recover land and in the same suit obtain additional affirmative relief necessary for his protection in and enjoyment of his title, and the fact that the additional feature is added to the suit would not deprive it of its character of one for the recovery of real estate. Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S. W. 865; State v. Snyder, 66 Tex. 687, 18 S. W. 106; McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315. In a suit of trespass to try title erroneous calls in the field notes improperly locating the mining claims at places other than where the lands were actually located, the erroneous calls, made by mistake, may be corrected so as to conform the location to the ground actually covered, marked, and identified when the locations were made, and a prayer that the field notes be so corrected would not have the effect to change the character and real purpose of the suit, but would be only incidental to the suit for the land. William Carlisle & Co. v. King, 122 S. W. 581.

Under an assigned error it is insisted that the judgment is contrary to law, in that appellees seek to reform and correct the patents which they allege were intended to cover the lands sued for instead of the lands described in the patents, the patents having been issued in 1907, and the appellants having received the lands in 1915, appellants’ rights having been acquired without notice of appellees’ claims. It is a sufficient answer to this assignment that the court in the twelfth and thirteenth findings of facts found that appellants had notice and knowledge of appellees’ claims to the lands at the time Appellants filed upon the claims. If the patents embraced the lands sued for as found by the trial court in its first and sixth findings, appellants would be charged with ■notice of the true boundary lines. William Carlisle & Co. v. King, supra. The assign-meat does not'question the sufficiency of the evidence upon which the findings were made.

It .is claimed that the original applications under .the mining act of 1895 under which the mining claims were filed show on their faces to be applications for purposes not authorized by the act, the applications alleging that the tracts of land contain nonmetal-lié brimstone and do not contain any of the valuable metals, and for that reason the applications are nullities and confer no rights.

- We think .the appellees’ mining claims could hardly be defeated by a collateral attack in this proceeding. The assignment is overruled.

In discussing the cases referred to under the first assignment, the propositions presented under appellants’ second, third, and fourth grounds of error have been considered, and we need not review them in order. There is ho merit in the contention that appellées cannot have the erroneous calls for distance corrected in their suit at this time. The pleading, the evidence, and the findings of the trial court all show that the lands applied for and located on the ground and identified by the established corners of the original survey are the lands embraced in the judgment.

We find no reversible error, and the case is affirmed.
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