author: LEVY, J.

text:
    PITLUK & MEYER v. BUTLER et al.
    (Court of Civil Appeals of Texas. Texarkana.
    April 24, 1913.)
    1. Chattel Mortgages (§ 278) — Foreclosure — Sueeiciency oe Evidence.
    In an action to foreclose a chattel mortgage' on a mule colt, evidence held to show conclusively that the colt purchased by defendants from the mortgagor was the same one described in the mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 567; Dee. Dig. § 278.]
    2. Chattel Mortgages (§ 49) — Description oe Property — Sueeiciency.
    A description in a recorded chattel mortgage of the mortgaged property as “one black mare mule colt eight months old” was sufficient, where it sufficiently indicated the situs of the property by reciting that the 'mortgagor was the owner, had possession, and resided at a stated place, and where the mortgagor, at the time of the mortgage and of a sale of the colt by him, had no other mule colt, and hence the purchaser of the colt was charged with notice of the mortgage and took subject thereto.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 90-92; Dee. Dig. § 49.]
    3. Chattel Mortgages (§ 47) — Description oe Property — Sueeiciency.
    As against third persons, a chattel mortgage must point out the subject-matter, so that a third person may identify the property by the aid of such inquiries as the instrument itself suggests.
    [Ed. Note. — For other cases, see Chattel Mort-Dig. §§ 87, 88, 96-103; Dec. Dig. § 47.]
    Appeal from Smith County Court; Jas. F. Odom, Judge.
    Action by Pitluk & Meyer against Powell Butler and others. From a judgment for plaintiffs granting insufficient relief, they appeal.
    Reformed and affirmed.
    The suit was against appellee Powell Butler on a note executed by him to appellants, and against all three appellees, to foreclose a chattel mortgage lien on personalty given by Butler to secure payment of the note. The judgment of the court was against the maker of the note for the debt and with a foreclosure of the chattel mortgage lien on all the property claimed in the suit under the mortgage except a mule colt, for which a foreclosure was denied to appellants. The chattel mortgage given by Butler to appellants was dated December 10, 1910, and properly registered in the office of the county clerk. The chattel mortgage described the property, as material here, as “also * * * one black mare mule colt eight months old.” The mortgage contained the recitation that all the property described in the instrument was the property of the mortgagor, and that no other person had any claim or interest in it, and, further, referring to the crop of cotton and corn mortgaged, “said crops planted and to be planted, cultivated and raised during the year 1911 on the -farm belonging to Tom. Goodson, situated in Anderson county, Texas, about five miles east from Franks-ton.”

       It was proven that the mortgagor resided on the farm belonging to Tom Goodson about five miles east from Frankston, in Anderson county, and had lived there for several years, and during the year 1911, and owned a mare mule colt of black color, bred from a bay mare about eight years old owned by him. The colt was in his possession at the place of his residence, and kept there, and was the only mule colt owned by him or on the place. The mule colt had a small white spot on the top of the head, and the owner had made a split in one of its ears. In the fall of 1911 appellee Lydie purchased from Butler the mare mule colt. ' In this purchase appellee Alexander appears to have a claim, or interest. The mare mule colt purchased by Lydie is described as being about 18 months old, with one ear split, a white spot on the top of the head, and of a dark bay or brown color. Several witnesses saw the colt at Lydie’s after the purchase, and positively identified it as the same mule colt of Butler’s covered by the mortgage. It was also shown that at the time of the purchase by Lydie the mortgagor was riding the bay mare proven to be the mother of the colt, and that the colt was following’ the mare. The evidence conclusively establishes, we conclude, that the mule colt purchased by Lydie and Alexander was the property of Butler, and was the same mule colt mortgaged and intended to be mortgaged by Butler to appellants. The slit in the ear, the white spot on the head, the sex and the age, and the other circumstances, go to positively show the same animal. The slight difference in color of black or dark bay or brown would not prevail over the other very positive means of identity, as the color of the colt in that respect could change or vary in the 10 months’ growth, which is usual.
    Fitzgerald, Butler & Bulloch, of Tyler, for appellants. Hanson & Butler, of Tyler, for appellees.

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

   LEVY, J.

(after stating the facts as above). It is the contention of appellants that they were also entitled, under the evidence, to have a foreclosure of their chattel mortgage lien on the mule colt against all the parties, and that it was error to have denied it. The identity of the property purchased being conclusively shown, the question remaining between the parties was whether Lydie and Alexander took the property subject to the chattel mortgage, or whether the lien was void, against them on the ground that the property was not sufficiently described ; and the question becomes one purely of la-yv in this particular case, for the reason that it depends upon the legal effect to be given to the facts presented. The chattel mortgage describes the property as “one black mare mule colt eight months old,” and states facts of the definite ownership and sufficiently of the situs of the property. And in connection with the instrument the fact was conclusively proven that the mortgagor did not own or have in his possession, at the time of the mortgage or the purchase, any other mule colt than the one covered by the mortgage. It is the quite familiar rule that as against third persons the mortgage must point out the subject-matter, so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests. That is required because notice flowing from matters of record cannot be more extensive than the facts stated or referred to. And by limiting the inquiry that would have been required of a third person to the particular description given in the mortgage here, identity of the particular mule colt in suit was fixed and certain. There is the situs of the mule colt covered by the mortgage sufficiently indicated by the recital that the mortgagor is the owner, has possession, and that he resides at a stated place. And the giving of the age, sex, and color is a description reasonably particular, and there is only a possibility of describing with greater detail. And there is the fact of nonexistence of other property of the kind held or owned by the mortgagor to which the terms of the mortgage could apply. All of these are elements that should be considered in determining the sufficiency of the description of the mule colt covered by the chattel mortgage to affect with notice. We, therefore, conclude that Lydie and Alexander should be held to have purchased the mule eolt subject to the mortgage. Johnson v. Brown, 65 S. W. 485; Boykin v. Rosenfield, 69 Tex. 117, 9 S. W. 318; Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 247; Garrett v. Josey, 44 Tex. Civ. App. 1, 97 S. W. 139; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 716; Lightle v. Castleman, 52 Ark. 278, 12 S. W. 564; Shreck v. Spain, 30 Neb. 887, 47 N. W. 419.

It follows that the judgment in this case should be reformed so as to allow a foreclosure of the chattel mortgage lien on the mule colt in favor of appellants against all the appellees, and it is accordingly done; and as so reformed the judgment is affirmed.

The costs of appeal will be taxed against appellees Lydie and Alexander. And all the costs of the court below, so far as it affects the proceeding in foreclosure, will be taxed severally against the appellees as incurred by them and as well by appellants, and otherwise against appellee Butler.


source: Caselaw Access Project

license: Public Domain

text:
    THREATT v. JOHNSON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    April 1, 1913.
    On Motion for Rehearing, April 10, 1913.)
    1. Guardian and Ward (§ 13) — Appointment — Jurisdiction or Court.
    Under Rev. Civ. St. 1911, §§ 4091-4096, providing that on appointment of temporary guardians the judge shall state in the order that it will be made permanent at the next regular term after service of citation, the power to appoint a temporary guardian is conferred on the judge, while the power to pass on a contest and make a permanent appointment is vested in the court; and an order of the court appointing a permanent guardian must be made in term time and entered in the minutes, as required by articles 4050, 4083, and under articles 3219, 4050, the appointment is a nullity, unless so entered.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 40-52; Dec. Dig. § 13.]
    2. Guardian and Ward (§ 13) — Appointment— Jurisdiction — Citation.
    The power of the court to appoint a permanent guardian is statutory, and the citation prescribed by statute is jurisdictional, and an appearance in court does not dispense with the necessity of the citation.
    [Ed. Note. — For other cases, see Guardian and Ward, Gent. Dig. §§ 40-52; Dec. Dig. § 13.]
    On Motion for Rehearing.
    3.Costs (§ 236) — Appointment op Guardian —Liability—Appeal.
    Where a person was required to appeal to the district court to obtain relief from an erroneous judgment of the county court appointing another guardian, the costs of the district court should be taxed against the latter.
    [Ed. Note. — For other cases, see Costs Dig. §§ 900-905, 907; Dec. Dig. § 236. , Cent. ]
    Appeal from District Court, Hopkins County; R. L. Porter, Judge.
    Application of Mamie S. Johnson and another for their appointment as guardian of minor children, presented after the appointment of J. F. Threatt as guardian. From a judgment of the district court appointing Mamie S. Johnson and another guardian of one of the children and J. F. Threatt guardian of the other children, the latter appeals.
    Reversed and remanded.
    In vacation of the court J. F. Threatt made application in writing to the county judge of Hopkins county to be appointed temporary guardian of the person and estate of the three minor Calvert children, the oldest a boy 17 years of age, the next a boy 13 years of age, and the other a girl 4 years of age. On July 31,1911, the same day of the application, the judge made and entered in the probate minute book of the court an order appointing him temporary guardian of the persons and estates of the minors, and further providing that citation issue as required by law, and that the appointment be made permanent at the next regular term of the court, unless the same be contested. On August 2, 1911, Threatt, in compliance with the terms of the order, executed his bond and took the oath and returned an Inventory and appraisement of the estate, all of which was approved hy the judge and filed. The October term was the first regular term after the date of the order, and no person appeared and contested the appointment of Threatt as permanent guardian of the persons and estate of the minors, and there was no order made or entered in the probate minutes at the October term making the temporary appointment of Threatt permanent. After the adjournment of the October term, and on December 21,1911, the appellees filed in the county court a petition containing three counts. The first was in the nature of a formal application to have them appointed guardian of the persons and estate of the minors. The second ground set up that in the temporary appointment of appellant no sufficient notices or citation had been issued or served as required by law, and no judgment was entered up making the temporary appointment permanent, and appellees asked that they be now permitted to contest the making of the same permanent, and to be themselves appointed permanent guardian. The third ground was in the nature of an application to have the appellant removed from his trust upon certain grounds alleged. The two oldest children, at the time of appellees’ application being over 14 years of age, filed written waivers of personal notice, and also selected appellees as guardian of their persons and estate. A trial was had in the county court at the February term next following the filing of the petition, and resulted in the appellees being appointed guardian of the two children over 14 years old upon their selection made in writing, and in the appellant being made guardian of the youngest child by an order entered in the probate minutes at that term. The appellees appealed to the district court from the order making appellant permanent guardian of the youngest child. In the district court the trial was to a jury, and judgment was entered on the verdict of the jury appointing ap-pellees guardian of the person and estáte of the youngest minor child. The appellees are husband and wife, and the wife is the sister of the minor child. Mrs. Threatt, wife of the appellant, is the aunt of the minor child.
    H. C. Connor, of Dallas, and O. O. James, of Sulphur Springs, for appellant. D. Thornton, of Sulphur Springs, for appellees.

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

   LEVY, J.

(after stating the facts as above). Appellant contends, in his first and second assignments of error, that the terms of the statute in which this proceeding was had do not authorize a contest to the appointment of the permanent guardian to be filed and made at the second term of the court after notices are served, and the contest proceedings are therefore void. The contest by appellee was made and filed at the second, and not the first, term of the probate court after the date of the order of the judge, in vacation, appointing appellant temporary guardian of the person and estate of the minor that is concerned in this appeal. It is believed that appellees are not barred of the legal right to file and make a contest of the permanent appointment of appellant as guardian, upon two grounds: (1) In view of the admitted fact in the record that at the time the contest was filed and presented the court had not made nor entered in the probate minutes during a regular term of court any order appointing or continuing the temporary guardian the permanent guardian of the minor; and (2) the law with respect to notice to be given before the temporary guardian could be made permanent guardian had not been complied with at the time the contest was filed and made.

The statute especially empowers the county judge to make appointment in 'vacation of a guardian of the person and estate of a minor, and authorizes the court at the next regular term, after proper service of citation, to make such appointment permanent. Chapter 6, tit. 64, R. S. 1911. But, in order for such proceeding to be made the basis for a permanent appointment, it is further expressly provided (1) that the judge shall state in his order appointing the temporary guardian that his appointment will be made permanent at the next regular term of court after service of citation, and (2) the clerk shall cause to be posted citation in terms of law that the person so appointed temporary guardian will be made the permanent guardian at the regular term of court stated in the citation, unless such appointment is contested at that term of the court. Articles 4092, 4095, R. S. It is to be observed that only the power to make the temporary appointment is placed in the judge, and the power to hear and pass on the contest and make the permanent appointment under the proceedings is in the court at the regular term of the court after due notice; and the distinction must be made between the authority of a judge to act in vacation under special power and the authority of a court to act in the premises in the regular term of court after proper notices are issued. The appointment of the permanent guardian in the proceeding being the exercise of a power placed in the court at a regular term after notice, and not a power to be exercised by the judge in vacation, the general provisions of the statute in respect to the exercise of such power over the subject-matter by the court must govern and control; for it is expressly so provided by article 4096, R. S. Thus it would follow by terms of law that the order of the court appointing a permanent guardian must be made in term time and entered in the minutes of the court. Articles 4050, 4083, R. S. And by express terms of law such appointment is ineffectual and a nullity, unless entered of record. Ar-tides 3219, 4051, R. S. Bút appellant insists that túe order of the judge appointing the temporary guardian would legally operate as a final recorded order, in túe absence of a contest, because it recites that “the same shall be made permanent” if there is no contest thereto. The words denote that some further order shall be made by the court at the regular term, making the guardianship permanent, and could not reasonably be construed as intending to enlarge or restrict the operation of the further provisions of the statute requiring the court to make and enter of record an order appointing the permanent guardian, in the face of the express provision that such further requirements of the statute shall govern the exercise of the court’s power in respect to the permanent appointment. And until the order of the court appointing the permanent guardian is made and entered of record, as required by law,’ there has not been any appointment of a permanent guardian, and the legal right to appear and contest such permanent appointment existed to appellees until a permanent order had been made.

A further ground for holding appel-lees were not barred of the right to contest is that it affirmatively appears in the record that no citation, as required by law, had been issued and served for the first term of the court that the temporary appointment would be made permanent. This point also presents such a fundamental error of record, involving the jurisdiction of the district court on appeal and the county court in the first instance to hear the contest and appoint a permanent guardian at the second term at which such was undertaken to be done, as will require this court to reverse the judgment. It is expressly provided by the statute that citation shall issue in the form prescribed, and be posted for the time stated, before the court can make the temporary appointment permanent at a regular term of the court. Article 4092, R. S. The power of the court to appoint the permanent guardian on the proceedings is a special power conferred by the statute, and the statute as to the issuance and service of citation must be substantially followed in order to make valid the exercise of the power; for compliance with the statute is a condition precedent to the valid exercise of the power, and is jurisdictional. And any attempt to exercise the power of appointment, without sueh express requirement being complied with, becomes a nullity. The citation here undertaken to be issued so far failed of even a substantial- compliance with the requirements as to have the legal effect of being a nullity in this proceeding. Appellees’ appearance in court would not dispense with the necessity^ of the citation required and operate to confer jurisdiction on the court; for the citation in this character of proceeding is not a matter personal to appellees, and appellees had no right to file a contest until the citation was issued. In view of the record the proceeding stands as no permanent guardian having been legally appointed by the court, and • the appellant being the legally appointed and qualified temporary administrator, with a contest filed to his being appointed permanent administrator. The judgment of the county court being therefore void for want of jurisdiction in that court to enter judgment before citation was issued and served, the district court acquired no jurisdiction in the appeal from such judgment, and the judgment of the district court must be here reversed and the proceedings remanded, with instructions to the district court to enter an order setting aside its judgment and dismissing the appeal. The costs of appeal, and the district court are taxed against the contestants, the appellees. The order of the county court appointing permanent guardian for the two children over 14 years of age on their own choice is not affected by this ruling, and the order, not being appealed from, will remain undisturbed.

Reversed and remanded, with instructions.

On Motion for Rehearing.

We have concluded that, as the appellees were required to appeal to the district court to get relief from the erroneous judgment of the county court, the costs of the district court should not be taxed against the appellees. Therefore the judgment of this court should be modified to the extent that the costs of the district court be taxed against the appellant, and the costs of appeal to this court against the appellees; and it is accordingly so ordered.


author: HARPER, J.

text:
    YOUNGBERG v. FIRST NAT. BANK OF PECOS et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 24, 1913.
    Rehearing Denied May 22, 1913.)
    1. Garnishment (§ 151) — Answer oe Garnishee — Sueeiciency.
    A garnishee, who, in his answer, does not deny, as required by statute, that he has in his possession effects of defendant, may not complain of an adverse judgment.
    [Ed'. Note. — For other cases, see Garnishment, Cent. Dig. §§ 280-283; Dec. Dig. § 151.]
    2. Appeal and Error (§ 760) — Questions .Reviewable — Assignments oe Error.
    Assignments of error cannot be considered, where appellant’s brief does not comply with Courts of Civil Appeals rules 24, 25 (142 S. W. xii), because of its failure to make any reference to statement of facts or transcript in any of the assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.]
    Error from Reeves County Court.
    Action by the First National Bank of Pecos against A. J. Rose and another, defendants, and C. M. Youngberg, garnishee. There was a judgment for plaintiff against defendants and against the garnishee, and the garnishee brings error.
    Affirmed.
    Ballard Ooldwell and P. R. Price, both of El Paso, and W. P. Brady, of Pecos, for plaintiff in error. J. W. Parker, of Pecos, and Davis & Goggin and Paul D. Thomas, all of El Paso, for defendants in error.

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

   HARPER, J.

On June 30, 1911, the First National Bank of Pecos brought this suit against A. J. Rose and S. S. Cash, defendants,' for the sum of $553, and sued out its writ of garnishment against C. M. Youngberg, the appellant.

Garnishee filed an answer, which did not comply with the statute, in that it did not deny having effects in his possession belonging to defendant Rose. Melton v. Lewis, 74 Tex. 412, 12 S. W. 93. Judgment was rendered against the said Rose and Cash for the amount sued for, and in turn against the appellant, Youngberg, garnishee, from which this appeal is taken.

The appellant’s brief is defective, in that it does not comply with rules 24 and 25 for Courts of Civil Appeals (142 S. W. xli). It fails to make any reference to statement of facts or transcript in any of the assignments of error; therefore cannot be considered. De Lay v. Wolffarth, 154 S. W. 1030.

Being no fundamental error, the judgment of the lower court must be affirmed; and it is so ordered.

McKENZIE, j., did not sit in this case.


author: WILLSON, C. J.

text:
    NIAGARA FIRE INS. CO. v. LOLLAR.
    (Court of Civil Appeals of Texas. Texarkana.
    April 2, 1913.
    On Motion for Rehearing, May 1, 1913.)
    1. New Trial (§ 86) — Grounds—Absence of Attorneys.
    Where nonresident attorneys of defendant were notified by the clerk of the court that the case would not be set down for trial on any particular day of the term, and that it was necessary to watch the docket and try the case when it was reached, and were subsequently advised that the court on a designated day would set the jury docket, a denial of a new trial on the ground of the absence of the attorneys at the time of the trial was not an abuse of discretion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 172-174; Dec. Dig. § 86.]
    2. Insurance (§ 634) — Fire Insurance — Actions— Petition— Sufficiency.
    A petition in an action on a fire insurance contract, which alleges the existence of a parol contract which does not require proof of loss as a condition precedent to an action for a loss, and which does not contain agreements as to sole 'unconditional ownership and actual value of the property damaged or destroyed, is sufficient as against the objection that it does not allege the furnishing of proofs of loss or plaintiffs unconditional and sole ownership and the actual value of the property damaged or destroyed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1593. 1596, 1598, 1603-1606, 1608; Dec. Dig. § 634.]
    On Motion for Rehearing.
    3. Insurance (§ 629) — Fire Insurance — Actions — Petition—Sufficiency.
    A petition in an action on a fire insurance contract, which alleges facts authorizing proof of either a written or an oral contract of insurance, is not demurrable.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1575-1580, 1584-1586, 1592, 1598; Dec. Dig. § 629.]
    4. Pleading (§ 48). — Petition—Sufficiency.
    Whether a petition states a cause of action must be determined by the allegations in it and without reference to testimony in support of it.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 105, 106; Dec. Dig. § 48.]
    Appeal from District Court, Hopkins County ; R. L. Porter, Judge.
    Action by J. C. Lollar against the Niagara Fire Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    In his original petition filed August 1,1912, appellee, who was the plaintiff below, alleged that on February 4, 1912, appellant proposed, if he would pay it $35, to insure a house and merchandise situated therein owned by him against loss by fire for a period beginning said February 4th and ending February 4, 1913. He then alleged that he accepted the proposition and paid appellant the $35, and that appellant “accepted same and did insure plaintiff’s said property for the sum of $1,000 during said period of time.” He then further alleged as follows: “That on or about the 30th day of May, 1912, his storehouse and his said goods contained therein were burned and entirely destroyed by fire, after which time plaintiff demanded of defendant that it pay him said $1,000 as it had contracted to do, but plaintiff says that it failed and refused so to do or to pay any part thereof; that the amount for which the house was insured was $200 and the amount for which the goods were insured was $800; that defendant’s failure to pay same caused plaintiff to be damaged in the sum of $1,000 caused by said fire and defendant’s failure to pay said insurance. Wherefore plaintiff says that, by reason of the premises, defendant became liable and was and now is due him said sum that it so refuses to pay.”
    In its answer filed August 17, 1912, appellant demurred generally to the petition, and specially on the ground that it did not appear from the allegations therein “that any proof of loss was furnished to it as required by the terms of the contract sued upon.” After denying the truth of the allegations in the petition, appellant in its said answer specially alleged that if it issued a policy to appellee, which it did not admit, same contained a stipulation that it should not, in the event of the loss of the goods by fire, be liable for more than three-fourths of their value, and also contained stipulations and conditions which were not complied with by appellee as follows: (1) That appellee would make, securely keep, and, in the event of a loss of the goods by fire, deliver to appellant inventories and books described. (2) That within 90 days after a loss hy fire appellee would furnish to it proof of loss as particularly specified.
    In a supplemental petition filed August 29, 1912, appellee, among other things, alleged as follows: “That he had no knowledge of the warranty provisions in the policy which evidenced the contract of insurance; neither did he know of the other provisions implead-ed by the answer of defendant, and that he had no opportunity of knowing or acquiring a knowledge of said warranties or provisions impleaded by defendant in its said answer; that he agreed orally with defendant, through its agents Eoscue and Pate, that plaintiff would pay defendant $35 to insure said property for $1,000 during said time, and defendant orally agreed to insure said property for said amount during said time, through said agents. He says that it is true that thereafter defendant reduced the said agreement to writing and signed same, together with said warranty clauses and conditions precedent, as shown by defendant’s answer, after the time of making the oral contract and after it had received its payment, but plaintiff had no knowledge of what it contained and never saw said written instrument until after his said property was destroyed by said fire; that the defendant, through its said agents, kept possession of the said policy to the entire exclusion of the plaintiff and did not at any time disclose to or inform plaintiff of any of the contents of said written policy, except that plaintiff’s said property was insured for the amount of $1,000, and did not disclose to plaintiff that there was any other agreement in the written instrument; that plaintiff had no notice that said warranty clause or other limitations impleaded by defendant were contained in said written instrument, and had no means of knowing or learning said facts.” Appellee then alleged that the property destroyed by the fire was of the value of $3,-000, while the total insurance on same was only $1,500. In his supplemental petition ap-pellee alleged facts he relied on.to show a waiver by appellant of stipulations and conditions in the policy set up by it to defeat the recovery sought against it.
    The trial was to a jury on August 30, 1912, and resulted in a verdict and judgment in appellee’s favor for \$1,000.
    Crane & Crane, of Dallas, for appellant. D. Thornton, of Sulphur Springs, for appel-lee.

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

   WILLSON, C. J.

(after stating the facts as above). One of the grounds of the motion for a new trial was the absence of appellant’s attorneys from the court at the time the case was tried. It was alleged in the motion that said attorneys resided in Dallas, 85 miles from Sulphur Springs, where the trial was had. The only reason assigned for the absence of the attorneys from the court was that they did not believe the case would be reached for trial as soon as it was reached. It was alleged in the motion that said attorneys on August 15th wrote appel-lee’s attorney advising him they represented appellant and would “forward an answer to the clerk, together with jury fee,” and requesting him to advise them “when the case is set down for trial,” and that appellee’s attorney on August 16th replied as follows: “Will ask for a jury for you, but can’t set the case. We have no assignment of cases in this court, and it is hard to tell when one can get a chance of trial in a jury case. There are several eases ahead of the Dollar Case. They may be tried or may be continued or settled, can’t tell, and the court won’t hold a jury for a case the trial of which has been postponed, and we will have to watch the cases and try when we can.” It was further alleged in the motion that on August 16th appellant’s attorneys wrote the clerk, sending its answer to the petition and the jury fee, and requesting him to see that the case was placed on the jury docket and to advise them “when the court will set its jury docket,” and that the clerk replied that he would see that the case was placed on the jury docket and that the court would “set its jury docket on Wednesday, August 28th.” Appellant then alleged that from the replies received to their said letters its attorneys “were led to believe and did believe that on August 28th the court would set this cause along with the cases for some certain time, and that they would be notified of the setting thereof. That in view of the fact that this cause is an appearance case, and that there were' several cases ahead of it, they were led to believe, and did believe, that same would not be reached during the first week of court, but probably during the second week of said term.” Appellant further alleged in said motion that its attorneys had found it to be “a uniform custom among members of the bar of the state of Texas to notify nonresident counsel of the setting of cases; that the letter from Mr. D. Thornton, counsel for plaintiff, was of the character to lead, and which did lead, defendant’s counsel to believe that plaintiff’s counsel would conform to such custom and notify the defendant’s counsel of the setting of this case, and they relied upon him to do. so.” Appellant then alleged that it had a meritorious defense to appellee’s suit, setting out same at length, offered to try the cause at any time during the term the court might select, and further offered to abide by any conditions the court might impose as to costs if the new trial should be granted. The motion, in tlie respects stated, was sworn to by one of appellant’s attorneys. It was controverted, in some of those respects, by a sworn answer thereto filed by appellee. As we are of the opinion it should not be said, even on appellant’s own showing as to the facts, that the court abused the discretion he possessed when he overruled the motion, the allegations in said answer need not be set out. As supporting its contention that its motion should have been granted, appellant cites several cases, relying on Scottish Union & National Ins. Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109, as being most nearly in point. But in that case it appeared that the appellant’s attorneys were justified, by the circumstances shown, in concluding that it would not be reached for trial so soon as it was reached, and therefore that they were not without excuse for their failure to be present at the trial. In this case we think the trial court, from the allegations in the motion, and without reference to matters set up by appellee in its answer controverting same, was entirely justified in concluding that appellant’s attorneys did not have a right to believe the case would not be reached for trial so soon as it was reached. They were advised by the clerk in his letter of August 17th that the court would set the 'jury docket on August 28th, and informed by appellee’s attorney in the letter he wrote to them August 16th that the case could not be set down for trial on a- particular day of the term, but that it would be necessary to watch the docket and try it when it was reached.

It is insisted that the petition did not state a cause of action, because it did not contain an allegation that appellee had furnished proof of the loss sustained by the fire. It was claimed that, by the terms of the policy issued to appellee, furnishing such proof was a condition precedent to his right to maintain a suit against appellant. ■ If it appeared that the suit was on the written policy, there would be merit in the contention. Insurance Co. v. Bowlin, 70 S. W. 797. But, by reference to the allegations in the original and supplemental petitions set out in the statement, it will be seen that the suit was not on the policy, but on a parol contract free of such a condition. Therefore the contention is overruled. Cohen v. Insurance Co., 67 Tex. 325, 3 S. W. 297, 60 Am. Rep. 24; Dull v. Fire Association, 129 Mo. 460, 30 S. W. 1034; 1 Cooley’s Briefs on Insurance, 405.

It is next insisted that by the terms of the policy it covered the risk only while ap-pellee was the sole and unconditional owner thereof, and that, “there being no averment in plaintiff’s petition that at the time of the fire he had an insurable interest in the property alleged to have been destroyed, the plaintiff was not entitled to recover, even if an insurable interest in him was proven.” And finally it is insisted that by the terms of the policy appellant “agreed to pay plaintiff the actual cash value of the property damaged or destroyed, not to exceed the amount named in the policy; and, there being no averment in plaintiff’s petition as to the value of the property alleged to have been destroyed, the plaintiff, as a matter of law, was not entitled to recover, even though the value was proven.” It is a sufficient answer to these contentions, we think, to repeat that the suit was on a parol contract to insure, and not on the written policy.

The judgment is affirmed.

On Motion for Rehearing.

The statement in the opinion that it appeared from the allegations in his pleadings that appellee’s suit “was not on the policy, but on a parol contract,” is inaccurate. The allegations in the petition authorized proof of either a written or an oral undertaking bn the part of appellant to insure appellee against loss by the destruction of his storehouse and stock of goods by fire. But the fact that the petition should be so construed did not subject it to the objections urged in the assignments attacking it, and therefore the disposition made by us of those assignments was not erroneous. If the sufficiency of the petition should be tested by the proof adduced by appellee instead of by the allegations therein, appellant’s contention that it did not state a cause of action, because it did not show a compliance with conditions precedent to appellee’s right to maintain a suit, contained in the contract proved, doubtless should be sustained. But, as we understand it, whether a petition in a given case states a cause of action or not is to be determined by the allegations in it, and without reference to testimony adduced in support of it.. Whether on the testimony adduced the plaintiff under his allegations was entitled to- judgment or not is another question, and one not raised by the assignments, as we construe them.

The motion is overruled.


author: HARPER, C. J.

text:
    MOORE v. COBE et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 17, 1913.
    Rehearing Denied May 22, 1913.)
    1. Appeal and Ebboe (§ 356) — Obdebs Ap-pealable.
    Under Rev. Civ. St. 1911, art. 2079, providing that an appeal from interlocutory .orders appointing receivers shall be taken within 20 da5’s from the entry of such order, an appeal from an order appointing a receiver, which was entered April 21, 1912, will be dismissed where the appeal bond was not-filed until June 21, 1912.
    ' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. § 356.]

      2. Appeal and Error (§ 101) — Orders Ap-pealable-Orders Appointing Receiver.
    Under Rev. Oiv. St. 1911, art. 2079, permitting an appeal from interlocutory orders appointing receivers, an order overruling a motion to vacate an order appointing a receiver is not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 681-687; Dec. Dig. § 101.]
    S. Appeal and Error (§ 95) — Orders Ap-pealable-Petition op Intervention.
    An order dismissing a petition in intervention upon motion is not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 649-654; Dec. Dig. § 95.]
    Appeal from District Court, Reeves County ; S. J. Isaacs, Judge.
    Plea in intervention by Mrs. J. L. Moore in a suit by Ira M. Cobe against the Toyah Valley Irrigation Company. From a judgment against intervener, she appeals.
    Appeal dismissed.
    Hefner & Cooke, of Pecos, for appellant. Ross & Hubbard, of Pecos, for appellees.

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

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

   HARPER, C. J.

With the consent of the court, appellant filed her petition (which- is called plea in intervention) in the suit then pending in the district court of Reeves county, viz., Ira M. Cobe v. Toyah Valley Irrigation Company, and in which J. G. Love is the duly appointed and acting receiver of the defendant irrigation company, by which petition she prays that the order appointing said receiver be vacated and said receiver discharged. In her petition she refers to and makes a part thereof her petition in another original suit in which she seeks to establish her rights in the waters of Toyah creek as against the irrigation company, of which J. G. Love is receiver, to show that she has an interest in the matters involved in the receivership. Upon motion of Ira M. Cobe and J. G. Love to dismiss her bill, the following judgment was entered: “Ira M. Cobe v. Toy-ah Valley Irrigation. No. 1,000. June 20, 1912. This day came on to be heard in the above styled and numbered cause the motion of plaintiff and the receiver, J. G. Love, to dismiss from said case the petition of intervention heretofore filed by Mrs. J. L. Moore, also the plaintiff’s and receiver J. G. Love’s general and special demurrers to said petition in intervention, one of which said special exceptions was because said petition in intervention was not verified, whereupon the intervener offered to verify said petition, and the court ordered that said petition be considered verified by the affidavit of said Mrs. J. L. Moore; and thereupon said special exception was overruled. Then came on to be heard the plaintiff’s and receiver J. G. Love’s general demurrer to said petition in intervention, and the court, having heard and considered said general demurrer, is of the opinion that same should be overruled, and same is in all things overruled. Then came on to be heard the motion of plaintiff and receiver, J. G. Love, to dismiss from said case said petition in intervention, and the court having heard said motion and heard said petition, and having heard the evidence offered by plaintiff, the receiver, J. G. Love, and of the intervener, Mrs. J. L. Moore, and having heard argument of counsel, and having considered same, and finding from said pleadings and evidence that the intervener, Mrs. J. L.' Moore, has no interest in the subject-matter of the suit and is in no way ca-pacitated to intervene in said suit, and the court finding that, from the evidence adduced on the hearing of said motion, the allegations in intervener’s petition were not true, the court Is of the opinion that said motion should be in'all things sustained. It is therefore ordered, adjudged, and decreed by the court that the plaintiff’s and J. G. Love’s motion to strike out the plea in intervention be in all things sustained, and said plea in intervention be and the same is hereby dismissed. To which action of the court the said Mrs. J. L. Moore then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals of the Eighth Supreme Judicial District of Texas, at El Paso.”

Appellees’ motion to dismiss the appeal must be sustained for the reason, first, that article 2079, Rev. Civ.. Stat. of 1911, provides that appeals from interlocutory orders .appointing receivers shall be taken within 20 days from the entry of such order. The order appointing the receiver was entered April 21, 1912, and the appeal bond was filed June 21, 1912.

Besides, the statute authorizes an appeal only from an interlocutory order appointing a receiver, and an order overruling a motion to vacate the order appointing a receiver is not appealable. Fidelity Co. of San Francisco v. Hirshfeld, 41 Tex. Civ. App. 517, 91 S. W. 246. But appellant contends that the entry made is a final judgment, rendered in term time, after hearing of the evidence on the merits, and finally concludes the intervener in regard to the relief prayed for: “Intervener asked for no affirmative relief as to the property rights, but by her exhibit attached to the pleading (styled petition in intervention) shows that she has a separate suit pending to establish her rights to the water being delivered by the irrigation company, and for damages.” The petition filed begins: “ * * * And moves the court to vacate and set aside its order * * * appointing J. G. Love receiver * * * and prays that the said order appointing said receiver be vacated and said receiver be discharged.”

So it is plain that no question was raised or presented to the court except the one to vacate the order appointing the receiver. And it is plainly to be seen that the court simply passed and sustained the motion of plaintiff in the suit and the receiver to dismiss the plea in intervention; and an order dismissing such a petition upon motion cannot be appealed from. Stewart v. State, 42 Tex. 242.

Appeal dismissed.


text:
    THORNTON et al. v. McREYNOLDS et al.
    (Court of Civil Appeals of Texas. Texarkana.
    April 10, 1913.
    Rehearing Denied April 24, 1913.)
    1. EVIDENCE (§ 501) — Opinion Evidence— TESTAMENTARY CAPACITY — SUBSCRIBING Witnesses.
    Subscribing witnesses to a will may testify, without qualifying as experts, that they are of the opinion that the testatrix was of sound mind at the time of the execution of the will, without stating the facts upon which the opinion is based.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dee. Dig. § 501;* Wills, Cent. Dig. § 118.]
    2. Evidence (§ 501) — Opinion Evidence-Testamentary Capacity — Facts Forming Basis of Opinion.
    Persons, other than the subscribing witnesses to a will, who merely state that they had opportunity to know the facts upon which they base an opinion as to the mental condition of the testatrix, may testify that in their opinion she was of sound mind, without qualifying as experts or giving the facts upon which they base their opinion; the requirement that such witnesses shall state facts only applying when their opinion is against the testamentary capacity.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. 2292-2305; Dee. Dig. § 501; Wills, Cent. Dig. § 118.)
    3. Wills (§ 215) — Proceedings for Probate-Attack upon Validity of Items.
    Under Rev. Civ. St. 1911, art. 3358, declaring that when a will has been probated its provision shall be executed, unless annulled in a proceeding instituted for that purpose, contestants of a will cannot attack specific provisions as invalid in the proceeding for probate, but must institute separate proceedings for that purpose.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 522, 523; Dec. Dig. § 215.]
    4. Appeal and Error (§ 1068) — Harmless Error — Instructions — Appellant Not Entitled to Verdict.
    An instruction which states that the jury should find for the proponents of a will if they believe the testatrix was of sound mind when it was executed, unless they found for the respondents under subsequent provisions of the charge, which recited substantially the pleadings of contestant, even if erroneous, is harmless, where the testimony was not sufficient to support a verdict in favor of the contestants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. § 1068; Trial, Cent. Dig. § 525.]
    Appeal from District Court, Bamar County ; T. D. Montrose, Judge.
    Application by John F. ‘McReynolds and another for the probate of the will of Mary iL. Mayers, deceased. From a decree admitting the will to probate, contestants appeal.
    Affirmed.
    J. G. Dudley and Moore & Park, all of Paris, for appellants. Moore & Hardison, of Paris, for appellees.

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

   WILLSON, C. J.

The appeal is from a judgment probating as the last will of Mrs. Mary L. Mayers, deceased, an instrument by the terms of which she gave to her daughters Harriett C. Lake and appellant Virginia L. Thornton, $5 each; to her daughters Mary E. Linde and appellant Ellen D. Rapley, on conditions which need not be stated, an interest in certain land in Hot Springs, Ark.; to her daughter Mary L. Rogers, on the condition she would care for her during the remainder of her life, certain lots in Paris, Tex.; to her grandchildren, Charlie M. Rogers, Marie Louise Rogers, Rapley D. Rogers, Albert R. Linde, and Flora T. Mockwtz, respectively, an interest in certain land in Hot Springs and in Ft. Smith, Ark.; to her great-granddaughter Elanora M. Anderson an interest in certain land in Ft. Smith; to the vestrymen of the Episcopal Church in Paris $300; and to the vestrymen of an Episcopal Church in Ft. Smith $50. In the instrument appellees John F. McReynolds and Luther Rees were named as the executors thereof. When the executors offered the instrument for probate in the county court, appellants Ellen D. Rapley and Virginia L. Thornton contested the probate thereof on the ground (1) that Mrs. Mayers was not of sound mind at the time she executed it, and (2) that she was induced to execute it as the result of undue influence exercised on her by Martha L. Rogers and members of her family and one B. S. Henderson, Mrs. Mayers’ legal adviser, who drafted the instrument. In the county court the issues were determined against appellants, and the instrument was admitted to-probate as the last will of iMrs. Mayers. On the appeal prosecuted by appellants to the district court, the trial was to a jury, who-found, on testimony which we think would not have supported findings to the contrary, that Mrs. Mayers was of sound mind at the time she executed the instrument, and that she was not induced to execute it by any undue influence exerted over her.

W. T. Ridley and G. F. Thornhill were-the subscribing witnesses to the will. The court permitted each of them, over appellants’ objection thereto, on the ground that he had not qualified as an expert, nor stated facts sufficient as a basis for an opinion, to-testify he was of the opinion the decedent was of sound mind at the time she executed the will. It was not error to admit the testimony. A subscribing witness to a will, whether he Is an expert or not, without stating the facts on which he bases it, can state his opinion as to the mental condition of the testator. Abbott’s Trial Ev. p. 148; 1 Wigmore, Ev. § 689; 3 Wigmore, Ev. § 1936; 28 A. & E. Enc. Law (2d Ed.) p. 101.

Overruling objections thereto on like grounds, the court permitted Mrs. Jones, Mrs. Berger, and others, respectively, to testify that she was of the opinion the decedent was of sound mind during the year 1911. Neither of these witnesses qualified as an expert, and the basis for the opinion each expressed was the fact that she was acquainted with the decedent before and during that year and until her death, and saw and conversed with her frequently. It may be conceded that the most that appeared was that the witnesses had an opportunity to know facts which entitled them to an opinion; still we think the court did not err in overruling the objections to their testimony. After stating the general rule which denies to a nonexpert witness the right to state his opinion in such a case, unless he details the facts on which it is based, the author of the article on Testamentary Capacity, in 28 A. & E. Enc. Law (2d Ed.) p. 99, notes a distinction, which we think should be recognized as existing, when he says: “A distinction, however, has been drawn between witnesses who give opinions against the testator’s capacity and those who testify to a belief in his mental soundness. In the case of the latter class of witnesses it would seem that one who shows an acquaintance with the person whose mental capacity is in question, and a familiarity with his general conduct, may testify that in his opinion such person is of sound mind. He need not specify the facts upon which he bases his belief. It is sufficient if he knows of nothing tending to indicate insanity.” And see 3 Wigmore on Evidence, § 1917 et seq.

Appellants requested the court to charge the jury as follows: “In this case the jury are instructed that items Nos. 8 and 9 of the instrument in evidence before the jury as the will of Mrs. Mary L. Mayers are not testamentary in their character, but attempt to pass an estate or interest upon a condition and consideration to take effect during the lifetime of the testator. The jury therefore will find a verdict for the defendants as to those items and refuse to probate the said items as a part of said instrument or will, even though they should find for the plaintiffs, probating the rest of the said instrument as the last will and testament of Mrs. Mary L. Mayers.” In Prather v. McClelland, 76 Tex. 584, 13 S. W. 545, the Supreme Court, construing article 3358, Revised Statutes 1911, which declares that, “when a will has been probated, its provisions and directions shall be executed, unless the same are annulled or suspended by order of the court probating the same on a proceeding instituted for that purpose by some person interested in the estate,” held that an attack on a specific provision in a will, on the ground of its invalidity, had no place in a proceeding to probate the will. After quoting the article set out above and others, the court said: "That the proceeding to annul some of the provisions of the will attempted, in this case, to be injected into the proceeding to probate it is required to be commenced and conducted as a separate and distinct proceeding after the will has been probated is, we think, too clear to require argument or illustration in its support.” This ruling, we think, is conclusive of appellants’ contention that the court erred in refusing to instruct the jury as requested.

The court instructed the jury to find for appellees if they believed Mrs. Mayers was of sound mind at the time she executed the will, unless they found for appellants “under subsequent portions of this charge.” He then recited, substantially, the allegations in appellants’ pleading setting out the grounds of their contest, and told the jury to find for appellants if they believed either of those grounds to have been established by the evidence. Several objections are urged to the latter portion of the charge; the most meritorious of the number being, we think, one which attacks the instruction as erroneous, on the ground that it “required contestants to prove more than the law required them to prove, before the jury were authorized to find against the validity of the will.” If the instruction was erroneous on that ground, there is authority for saying appellants have no right) to complain of it, because it submitted the issues just as they pleaded them. Edwards v. Millsaps, 70 S. W. 357; Triplett v. Morris, 18 Tex. Civ. App. 50, 44 S. W. 687. However, we do not care to rest our conclusion that the judgment should not be reversed for errors in the charge complained of on the fact that the instruction was in the language of appellants’ pleadings. To our minds, a more satisfactory reason for overruling appellants’ contention lies in the fact that the testimony demanded the finding made by the jury. The testimony relied upon to defeat a probate of the will, we think, was not of sufficient probative force to support a finding by the jury contrary to the one they made. Therefore, if there was error in the instruction, it should be treated as harmless.

The judgment is affirmed.


author: REESE, J.

text:
    ATHENS v. HURLOCK et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 1, 1913.)
    1. Brokers (§ 63) — Compensation—Sufficiency of Services.
    Defendant listed property with plaintiff for sale for $3,500 cash to himself; the plaintiff to have as commission whatever he could obtain above that price. Plaintiff procured a purchaser for $3,700, who could not pay the entire amount in cash, and arranged that his lien notes be cashed, and the cash ($3,500), except as to $250, be turned over to defendant, who agreed to such terms, but declined to sign a contract, and afterwards, although the purchaser was willing to perform the contract on such terms, refused to consider anything except his first cash proposition. Held, that plaintiffs could recover a commission of $200, less the $50 which they had agreed to pay therefrom as a bonus to get the purchaser’s notes cashed.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, SI, 94-96; Dec. Dig. § 63.]
    2. VENDO» AND PURCHASER (§ 76) — CONTRACTS — CONCURRENT Conditions.
    A contract, providing that the cash for a purchaser’s notes was to be turned over to the vendor before the deal was closed and the deed signed, might be complied with by a simultaneous signing and delivery of the deed and paying of the money.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 117, 119; Dec. Dig. § 76.]
    Appeal from Harris County Court; Clark 0. Wren, Judge.
    Action by O. Haynes Hurlock and another against W. J. Athens. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    B. F. Louis, of Houston, for appellant. Cole, Wilson & Cole, of Houston, for appel-lees.

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

   REESE, J.

This is an action instituted in the justice court by appellees against appellant to recover $200, alleged to be due by way of commissions for negotiating a sale of a certain lot, house, and furniture in the city of Houston belonging to appellant, and which had been placed in the hands of ap-pellees for sale. The gravamen of the action is that after appellees had procured a purchaser on the terms agreed upon appellant refused to carry out the trade, to their damage in the sum sued for. A trial in the justice court resulted in a judgment for plaintiffs for $200. The defendant appealed, and a trial in the county court resulted in a judgment for plaintiffs for $150.

The evidence authorizes the following conclusions as to the facts: Appellant, being the owner of the property in question, listed the same with appellees for sale at the price of $3,500 cash to the owner; the agents having for commissions whatever they could sell for over this price. Appellees found one Kephart, who wanted the property, and was willing to pay $3,700, but could pay only a small amount of cash. He proposed to pay $750 cash, and to give four notes for $500 each, payable in two, three, four, and five years, and one note for $700, payable in six years, and another note for $250, payable in one year, this last note secured by a second lien on the real estate and a first lien on the furniture. A contract was fixed up, referred to as on yellow paper, embracing a receipt for $100 earnest money, and embodying the terms of the contract, as stated, but signed only by Hurlock as agent. Appellees then arranged with a party to cash all of the notes, except the last one for $250, and the yellow paper contract stated that the first lien notes were to be cashed, and the cash turned over to appellant before the deal was closed and the deed signed. Appellant was to take the last-mentioned note for $250. Ap-pellees then took this contract to appellant as embodying a sale of the property which they could make. Appellant declined to sign the contract, but agreed to its terms and authorized appellees to go ahead. The sale, by the terms of this contract, was to be closed up on or before October 15th succeeding. The contract was dated August 29, 1911. Having arranged to have the notes cashed, so that appellant should receive $3,250 cash, which with the $250 note would make the $3,500 he wanted for the property, appellees and Kephart met in appellees’ office on October 15th and sent for appellant, in order that ,the deal might be closed. When appellant came in, and something was said about the note he was to take, he refused to proceed further, or to consider anything except the all-cash proposition on which he had first listed the property with appellees, and abruptly left the office. Kephart was ready, willing, and able with the money to pay the cash part of the consideration, and to sign the notes, and appellees were ready and able to pay the cash for the notes. The evidence justifies the conclusion that, if appellant had carried out his contract and agreement as embodied in the written contract to which he agreed, the whole matter could and would have been then and there closed up without delay, and this was prevented by appellant’s refusal to accept anything but all cash to him.

Upon the foregoing facts the appellees were entitled to judgment. As they had agreed to pay $50 out of their $200 commissions as a bonus to get the notes cashed, the court held that they could not recover more than $150, for which amount the jury returned a verdict.

The contract provided that the cash for the notes was to be turned over to appellant “before the deal is closed and the deed j.s signed,” seemingly a very foolish provision. But there would not have been any difficulty in complying with this by a simultaneous signing and delivery of the deed and paying of the money.

None of the assignments of error present any substantial reasons for a reversal of the judgment, and it is therefore affirmed.

Affirmed.


text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. DAVIS.
    (Court of Civil Appeals of Texas. Texarkana.
    April 29 1913.
    Rehearing Denied May 8, 1913.)
    1. Electricity (§ 19) — Injuries — Telephone Wires — Safety Appliances.
    In an action for injuries to plaintiff’s wife by lightning alleged to have been conducted into her residence over defendant’s telephone wires running into the house, evidence held insufii-cient to show as a matter of law that a lightning arrester if installed would not have prevented the lightning from entering the house and causing the injury.
    [Ed. Note. — Eor other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.]
    2. Electricity (§ 14) — 'Telephone Wires— Installation — Care Required.
    Where defendant telephone company, in conducting telephone wires into plaintiff’s house, in the exercise of reasonable care had reasonable grounds to apprehend that lightning would he conducted over its wires into the house and there do injury to persons or property, and there were known and approved devices for arresting or dividing the lightning, so as to prevent such injury, it was defendant’s duty in the exercise of due care to provide such appliances as were reasonably necessary to guard against such accident.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 7; Dec. Dig. § 14.]
    3. Electricity (§ 19) — Telephone Wires— Safety Appliances — Lightning Arrester.
    In an action for injuries to plaintiff’s wife by lightning conducted into plaintiff’s residence over telephone wires, evidence held insufficient to show as a matter of law that lightning ar-resters were only used in the construction 'of telephone lines to prevent injury to the telephone appliances, and not to guard against injury to persons or property in the house.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.]
    4. Damages (§ 143) — Personal Injuries— Pleading.
    Where, in an action for injuries to plaintiff’s wife, the petition, after alleging that she was shocked by lightning entering plaintiff’s house over defendant’s wires, charged that the shock caused the wife to suffer a rupture of a cystic tumor causing the Fallopian tube and uterus to become inflamed and diseased, which resulted in the removal of one of her ovaries and uterus, from which she suffered great pain and mental anguish, the loss of the wife’s womb was sufficiently pleaded to constitute a proper element of damage.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. § 143.]
    5. New Trial (§ 102) — Newly Discovered Evidence — Diligence.
    Plaintiff sought to recover for damages for an injury to his wife, due to lightning negligently conducted into the house over defendant’s telephone wires, alleging that the shock caused a rupture of a tumor which necessitated the removal of her womb by a physician, and steps were taken by plaintiff to take the physician’s testimony, but were never completed, and, though defendant’s manager knew that such physician had performed an operation on plaintiff’s wife, no inquiry was made of him until after the trial, when it was shown that the physician would have testified that plaintiff’s wife had not suffered from a tumor, and that the removal of her uterus was not due to shock of any kind, but to an adhesion resulting from a previous operation. Held, that defendant was negligent in failing to secure the physician’s testimony and was therefore not entitled to a new trial for alleged newly discovered evidence thereon.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    6. Appeal and Error (§ 1064) — Harmless Error — Instructions—Misuse of Words.
    Use of the word “consent” instead of the word “consequence” in portion of the court’s charge was not ground for reversal, where it was obviously a mere clerical error which could not have misled the jury.'
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    7. Trial (§ 260) — Instructions—Requested Charge.
    It is not error to refuse requested charge on issues fully covered by instructions given.
    [Ed. Note. — For other cases, see Trial,. Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, Cass County; P. A. Turner, Judge.
    Action by R. E. L. Davis against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    In his petition appellee alleged that, because of negligence of appellant in installing and maintaining a telephone in the house in Atlanta where he resided with his wife, she was severely shocked, and so injured, by electricity conducted into the house by the telephone wire during a thunderstorm. The specific negligence alleged was the failure of appellant to provide a lightning arrester to prevent electricity from entering the house through the telephone on the occasion of such storms. The petition contained other allegations as follows: “That on or about the night of April 12, 1912, during a thunderstorm, a heavy charge of electricity was conducted along the wires of defendant into the residence of plaintiff, going into the telephone instrument, exploding, and striking the wife of plaintiff, who was sleeping in said residence at said time. That said bolt of lightning severely shocked and rendered unconscious for some time the wife of plaintiff and caused her great physical pain and mental suffering. That when plaintiff’s wife awoke from her unconscious state she found herself in nervous fright and her body numb. That said bolt of lightning had set fire to the wall of the hall wherein thQ telephone was situated and plaintiff’s wife — plaintiff being absent from home at the time — extinguished the flames with great difficulty and physical exertion. That by reason of said shock plaintiff’s wife’s nerves were shattered and her nervous system permanently injured. That thereby her hearing was permanently injured and impaired and she was' caused to suffer and continues to suffer great pain in her right ear, being unable to sleep upon her right side on account thereof. That the eyesight of plaintiff’s wife was caused by said shock to become permanently weakened and greatly diminished.” In addition to the general denial, appellant pleaded that, if appel-lee’s wife was injured as he alleged, she was injured “during a severe rain and storm,” and that her injury was due to “the act of God, same being an act or occurrence that was wholly beyond the power and control of this defendant.” The appeal is from a judgment in favor of appellee for $1,250.

      A. P. Wozencraft and W. S. Bramlett, both, of Dallas, Hill Stewart, of Atlanta, and Young & Stinehcomb, of Longview, for appellant.' Hugh Carney, of Atlanta, for appel-lee.

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

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

   WILLSON, C. J.

(after stating the facts as above). Appellant vigorously insists that fhe court erred when he refused its request that he instruct the jury to find in its favor. In support of its contention appellant asserts that there was no testimony on which to base a finding: (1) That appellee’s wife was injured by lightning as alleged; (2) or, if she was, that an “arrester,” had it installed one to prevent lightning from being conducted over its wires through the telephone into appellee’s house, could or would have prevented the injury she suffered; (3) or, if an arrester would have prevented injury to her, that it was guilty of negligence in failing to install one. We think the contention should be overruled. The testimony was amply sufficient to support a finding that ap-pellee’s wife was injured by lightning entering the house through the telephone, and warranted a finding that the lightning would not have so entered the house had appellant installed an “arrester” to prevent it. In support of its insistence that there was no evidence on which to base a finding that it was guilty of negligence in not installing an arrester, appellant asserts that the testimony was undisputed that such devices were not. used for the purpose of preventing injury to occupants of houses in which telephones were placed, but only for the purpose of preventing injury to telephones by lightning carried on wires connected to them. Had the testimony in that particular been undisputed as asserted, we do not think it would follow that it therefore appeared insufficient to show negligence on the part of appellant. Having undertaken, as it appeared it did, to install a telephone in appellee’s house and connect same with its telephone line, appellant was “under a duty,” in the language of Start, J., in Griffith v. New England Telephone & Telegraph Co., 72 Vt. 444, 48 Atl. 644, 52 L. R. A. 919, “to exercise the care of a prudent man in like circumstances. If, while in the exercise of such care, it had reasonable grounds to apprehend that lightning would be conducted over its wires to and into the house, and there do injury to persons or property, and there were known and approved devices for arresting or dividing such lightning, so as to prevent injury therefrom to the house or persons therein, then it was the defendant’s duty to exercise due care in selecting, placing, and maintaining, in connection with its wires and instruments, such known and approved appliances as were reasonably necessary to guard against accidents that might fairly be expected to occur from lightning when conducted to and into the house over its telephone wires.” That there were such appliances was shown by the testimony of the witnesses' Guest, Phipps, Peavy, and Neville. That they were not used by other companies or persons operating telephone exchanges for the purpose of protecting occupants of houses in which such companies or persons had installed telephones would not acquit appellant of negligence in failing to use them if an ordinarily prudent person nevertheless would have used them. But the testimony was not undisputed as appellant asserts it was. While the witness Neville, manager of appellant’s exchange in Atlanta, testified that “lightning arresters are not put in for the purpose of preventing injury to persons,” and the witnesses Guest and Phipps testified that the principal object in using them was to protect telephones from injury by lightning, Neville further testified that appellant used them in its central office in Atlanta for the protection of its operators there, and in the city of Marshall for general purposes; and Guest testified they were used for such purposes in Daingerfield and Pittsburg.

In his charge the court told the jury if they found for appellee they might consider, in estimating the damages, the loss to his wife of her womb. It is insisted the instruction was erroneous because not authorized by the pleadings. But we think it was. After alleging that his wife was shocked by lightning which entered his house over appellant’s wires, as set out in the statement above, appellee alleged in his petition “that said shock as aforesaid caused his wife to suffer a rupture of a cystic tumor on one of her ovaries, and thereby causing the Eallopian tube and uterus to become inflamed and diseased. That after suffering for a period of about six weeks, being constantly under the treatment of her family physician, she was compelled to be taken to Texarkana and there operated on and have her ovary and uterus removed. That thereby she suffered great pain and mental anguish, remaining for some time in the hospital at Texarkana, and has since suffered and continues to suffer great pain and suffering. That as a result of said operation of removing her ovary and uterus plaintiff’s wife has been rendered permanently incapable of producing children, to her great sorrow and distress of mind.”

Appellee claimed, and produced testimony tending to show, that at the time she received the shock his wife was suffering from a cystic tumor on one of her ovaries, and that the shock ruptured the tumor, causing inflammation which necessitated the removal of her womb. The operation for that purpose was performed by Dr. J. R. Dale of Texarkana. With a view, ostensibly at least, to taking his deposition as a witness, appellee propounded interrogatories to Dr. Dale and had appellant to propound cross-interrogatories to him. The nature of these interrogatories is not disclosed by anything in the record, nor does it appear that they were ever filed with the clerk as contemplated by law, nor that a commission to take Dr. Dale’s answers thereto was ever issued; but it does appear that, if a commission was issued, no other steps towards securing Dr. Dale’s deposition were taken. The case was tried without his testimony, without objection on the part of appellant that his deposition in answer to the interrogatories had not been returned, and without inquiry as to what his testimony, if made a witness, would be. A few days after the trial was concluded, appellant ascertained that Dr. Dale would testify that appellee’s wife had not suffered from a cystic tumor, and that the necessity for removing her womb was not due to a shock of any kind, but to an adhesion resulting from a previous operation for the purpose of removing her ovaries. On the ground that this was newly discovered testimony, appellant asked for a new trial of the case, and complains of the refusal of the court to grant its request. We think the court was justified in overruling the motion on the ground indicated, because it did not appear that appellant had used the diligence it should have used before the trial to ascertain what it afterwards learned would be Dr. Dale’s testimony. Appellant was advised by the allegations in appellee’s petition that he claimed the operation on his wife for the removal of her womb was rendered necessary because of the rupture of a tumor, caused by the shock to* her by the lightning, and that the operation was performed in Texar-kana. It appeared that the citation in the case was served on the manager of appellant’s exchange in Atlanta, and that at the time it was served he knew the operation on appellee’s wife was performed by Dr. Dale. So, all that was necessary for appellant to do to ascertain who performed the operation referred to in the petition was to ask the manager of its affairs at the place where the accident occurred. It further appeared that, when inquiry was made of Dr. Dale after the trial, he promptly disclosed to appellant the information he acquired in connection with the operation performed by him. There is no reason to doubt he would as promptly have given the information had inquiry been made of him before the trial. Railway Co. v. Davenport, 110 S. W. 153.

The seventh assignment is overruled. The use by the court of the word “consent” instead of the word “consequence,” in the portion of the charge attacked, obviously was a mere clerical error which could not have misled the jury. The other objection to said portion of the charge, to wit, that “the burden it placed upon the defendant was too great,” we think also is without merit. Looking to the charge as a whole, we do not think the jury could have construed it as authorizing them to find appellant guilty of negligence unless they believed an ordinarily prudent person under the circumstances of the case would have installed an arrester for the purpose of preventing lightning entering ap-pellee’s house over its wires.

The fifth, sixth, and eighth assignments also are overruled. In the court’s main charge and in special charges given at appellant’s request, the jury were sufficiently instructed as to the issues presented by the special charges refused.

The judgment is affirmed.


author: PDBASANTS, C. J.

text:
    MENDELSOHN et al. v. GORDON et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 9, 1913.
    Rehearing Denied May 1, 1913.)
    1. Appeal and Error (§ 100) — Decisions Appealable — Temporary Injunctions.
    Under Rev. Civ. St. 1911, art. 4644, providing that any party to a civil suit may appeal from an order or judgment granting, refusing, or dissolving a temporary injunction, a party may appeal from an order modifying a temporary injunction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.]
    2. Religious Societies ■(§ 24) — Schisms—Jurisdiction op Civil Courts.
    In disputes between factions of religious societies, the civil courts can determine only those affecting property rights, and ecclesiastical or doctrinal questions will be inquired into only so far as to determine such rights.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. §§ 154-157; Dec. Dig. § 24.]
    3. Religious Societies (§ 24) — Temporary Injunctions — Modification.
    Plaintiffs, who represented the minority faction in a dispute between the members of a religious society, obtained a temporary injunction restraining defendants, who controlled the organization, from expelling plaintiffs as members, from taking in new members or paying out the funds of the corporation, except for the purpose of paying salaries, and from holding business meetings. Held, that a modification of this injunction permitting the holding of business meetings, the admission of new members, and the collection of dues was not a matter of which plaintiffs could complain, the injunction expressly protecting them and the property in controversy from liability for any debts incurred by defendants and continuing in force the order restraining expulsion, for the civil courts have authority only to determine controversies between factions in religious societies which affect property rights, and cannot determine doctrinal questions except in so far as they involve such rights; the modification in this ease not affecting plaintiffs’ property rights.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. §§ 154-157; Dec. Dig. § 24.]
    4.Injunction (§ 132) — Temporary Injunctions — Scope oe Relief.
    A temporary injunction cannot be used to divest property from one party to another; the only legitimate scope of such a remedy being to preserve the status quo of the parties’ rights until the determination of the litigation.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. § 302; Dec. Dig. § 132.]

      5. Appeal and Ebbob (§ 954) — Review—Dis-CKETION OF TRIAL COURT.
    Where the trial court modified a temporary injunction at the request of defendants, such order cannot be disturbed on appeal because, at the time of the modification, defendants were in contempt and might have been denied any relief on that ground; the trial court not being bound to deny relief for that reason.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3818-3S21; Dec. Dig. § 954.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Suit by Charles Mendelsohn and others against Abe Gordon and others. From an order modifying a temporary injunction, plaintiffs appeal.
    Affirmed.
    See, also, 155 S. W. 571; 156 S. W. 1152.
    Love & Channell, of Houston, for appellants. John Lovejoy and L. E. Blanken-becker, both of Houston, for appellees.

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

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

   PDBASANTS, C. J.

This is a suit by appellants against the appellees involving the right to the possession, use, and control of a synagogue building, schoolhouse, cemetery, and other property belonging to the Congregation Adath Yeshurun, a religious corporation organized under the laws of this state. Plaintiffs and defendants are all members of said religious organization. The petition alleges: That said corporation was formed and said property acquired for and dedicated to the support of religious services according to well-defined doctrines of faith and practice and in accordance with certain rites and ceremonies set forth and alleged by the plaintiffs. It was further alleged that the defendants had changed and abrogated the doctrines of faith and practice and the rites and ceremonies which obtained when said corporation was organized and its property purchased and dedicated, and were attempting to set up and maintain in the synagogue of said congregation certain other and fundamental different religious doctrines of faith and practice and different rites and ceremonies, and were using, and attempting to use, the property of said congregation for the support and maintenance of said new and different doctrines of faith and practice and rites and ceremonies, and were thus diverting said property and the use thereof from that for which it was originally purchased, acquired, and dedicated, to the injury of the rights of the plaintiffs as members of said congregation. It was further alleged that the defendants, who were officers of said Congregation Adath Yeshurun, were threatening to expel plaintiffs as members of said congregation and to misapply and misappropriate the funds and property thereof and to take into said organization new members for the purpose of aiding them in the misappropriation and diversion of the property and funds of said congregation. The prayer of the petition was for an injunction to restrain the defendants from thus diverting the property and funds of said congregation or using the same for the purposes and objects sought by the defendants and restoring and recognizing the doctrines of faith and practice and the religious rites and ceremonies originally designed by said congregation as the objects and purposes thereof, and to promote which its property was acquired and dedicated, and restraining the defendants from interfering with the use of said property for such purposes. There is also an alternative prayer in the petition for the dissolution of the corporation and a partition of its property.

Upon this petition a temporary injunction was granted by the trial judge on December 29, 1911, restraining the defendants from expelling any of plaintiffs as members of said congregation, and from taking in new members or paying out the funds of the corporation, except for the purpose of paying the salaries of its officers, and also from holding any business meeting or transacting any of the business of said congregation. This order was subsequently modified so as to permit the defendants to collect dues from the members and to enforce the bylaws of the congregation, which provide for the suspension and expulsion of members who fail or refuse to pay their dues. Thereafter, on December 14, 1912, upon the application of the defendants, the injunction was further modified by the following order made by the judge after hearing the application of defendants and affidavits in support thereof and the answer of plaintiffs:

“(1) That said injunction be so modified as to permit the defendants to hold business meetings, and to elect a rabbi and a teacher, and carry on the school and to receive new members into the congregation and to collect dues from such members, and from all members who are defendants, all the expenses of the congregation to be borne by them, and that no liabilities incurred by such congregation so conducted shall be charged against or to be fixed as a liability upon any of the property of the congregation, but the status of said property as -regards liabilities upon it shall remain in statu quo, save and except as the same may be changed by payment in whole or in part of the liabilities now fixed by liens against it or by extension of such indebtedness.”
“(5) It is further ordered that the rights of any new members who may be received by defendants as a congregation, to any of the benefits of or liabilities arising from this litigation, is not herein determined; that question being left open to be determined hereafter according to the law applicable to the rights of those who become or may be alleged to have become, parties to pending litigation.”

From this order plaintiffs prosecute this appeal.

The effect of this o.rder was to dissolve that portion of the temporary injunction which restrained defendants from taking in new members and from holding business meetings and transacting the business of the congregation, and we think under the statute (article 4644, Revised Statutes 1911), which gives the right of appeal from an order granting, refusing, or dissolving a temporary injunction, this court has jurisdiction to entertain this appeal.

The first assignment of error presented in appellants’ brief is as follows: “The court erred in making and entering said or-' der and decree, and especially paragraph 1 thereof, because the evidence upon which the same was granted was wholly insufficient to authorize the dissolution of the temporary injunction which had theretofore been entered for the preservation of the status quo of the rights and privileges of the plaintiffs and defendants with respect to the subject-matter of the suit."

The application of defendants upon which this order modifying the temporary injunction was made contains the following allegations: “That said congregation is now paying and taking care of many heavy items of expense in the conduct of the organization. That the salaries of the rabbi and teachers of the school and many other necessary and heavy expenses are being met, and a large sum is owing and a part of it due by the congregation. That, under the injunction of the court, no business can be transacted other than as modified by the order of the court, above mentioned. That, the congregation not being able to take in new members, a large and heavy burden for the current expenses and fixed indebtedness is laid upon the members. That many persons who desire to become members of the congregation for religious instruction and comfort and for the education and proper instruction of their children are denied the privilege of becoming members. That it is necessary for the protection of the property of the congregation that the court grant them the power to hold business meetings, where urgent matters relating to the payment of the indebtedness and the current running expenses may be attended to. That the taking in of new members who will pay their dues to and aid in carrying forward the work of the congregation in a financial and religious way, and in helping to defray the expenses of the school, and in providing ways and means for meeting the fixed indebtedness on the property of the congregation, is a matter of grave importance. That the defendants will be irreparably damaged unless said injunction is thus modified to allow it to initiate and take in members and to hold its regular business meetings as provided by the by-laws to provide for the financial cendition of the congregation. That, without such authority, its welfare will be placed in great and irreparable jeopardy.” This application was not sworn to, but the affidavits and evidence offered by defendants in support thereof fully sustain its allegations as to the necessity of increasing the membership of the congregation in order to meet the expenses of caring for the property and carrying on the educational and religious activities of the organization, and that, in order to raise such revenue, the defendants must be allowed to hold business meetings and take in new members. These facts amply justified the trial judge in modifying the temporary injunction as requested by the defendants.

We cannot understand upon what ground plaintiffs can object to this order. By its express terms neither plaintiffs nor the property in question can be held liable for any obligations incurred by the defendants, and the new members which defendants may take into their organization can have no voice or be given any consideration in determining the issues between plaintiffs and the defendants as to the right of possession and control of the property of the congregation.

In disputes between factions of religious societies the only questions which the civil courts are authorized to determine are those affecting property rights. In such controversies ecclesiastical or doctrinal questions will only be inquired into so far as may be necessary to determine the property rights of the parties. First Baptist Church v. Fort, 93 Tex. 215, 54 S. W. 892, 49 L. R. A. 617; Peace v. First Christian Church of McGregor, 20 Tex. Civ. App. 85, 48 S. W. 534; Clark v. Brown, 108 S. W. 421. It cannot possibly injure plaintiffs for defendants to hold business meetings, elect a rabbi and teacher to carry on their school and take in new members, when neither plaintiffs nor the property in controversy are made liable for any expenses defendants may incur.

The evidence shows that the defendants are a majority of the organization and are in possession of the property, and the temporary injunction granted by the court did not restrain defendants from using the property or divest them of its possession pending a final hearing of the case. In fact, a temporary injunction could not be used for such purpose. Simms v. Reisner, 134 S. W. 278. The only legitimate use of a temporary injunction in this case would be to preserve the status quo of plaintiffs’ rights in the property and protect and preserve the property pending the litigation. As before said, there is nothing in the order complained of which permits defendants to do any act which can injuriously affect plaintiffs’ rights.

There is no merit in the contention that defendants were not entitled to a modification of the injunction because they had been guilty of violating the temporary injunction theretofore issued, and were therefore in contempt of court “and had no standing before the court for any equitable relief whatever.” If it be conceded that this charge against the defendants is true and that the trial court would have been authorized for that reason to have refused their application for a modification of the injunction, he was not compelled to refuse it on this ground; and, having held that defendants should not be denied the right to a modification of the injunction because of their failure to obey the order granting said injunction, we are not authorized to disturb such holding.

We are of opinion that the judgment of the court below should be afiirmed, and it has been so ordered.

Affirmed.


author: PLEASANTS, C. J.

text:
    MENDELSOHN et al. v. GORDON et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 9, 1913.
    Rehearing Denied May 1, 1913.)
    Religious Societies (§ 29) — Schism in Church — Protection of Property — Pending Determination.
    Where plaintiffs and defendants were members of rival factions in a religious society, defendants being in possession of the society’s property, it is proper, pending the determination of the rights of the parties upon a proceeding for an injunction, to permit defendants to mortgage the property, for money necessary for the protection, repairs, and maintenance of the same pending determination.
    [Ed. Note. — For other cases, see Religious Societies, Cent. Dig. §§ 196-198; Dec. Dig. § 29.]
    Appeal from District Court, Harris County; Norman G. Kettrell, Judge.
    Action by Charles Mendelsohn and others against Abe Gordon and others, involving the title to the property of a religious society. From an order authorizing the defendants to borrow money secured by a mortgage upon such property to protect it pending suit, plaintiffs appeal.
    Affirmed.

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

   PLEASANTS, C. J.

This is a companion case to one between the same parties, numbered 6,383 on the docket of this court, 156 S. W. 1149, and this day decided. For a statement of the nature of the litigation and the general issues involved, we refer to our opinion in cause No. 6,383, above mentioned.

After the order on December 14, 1912, from which the appeal in cause No. 6,383 was prosecuted, the judge of the court below on January 7, 1913, on application of defendants, further modified the original order granting the temporary injunction herein so as to permit defendants to borrow the sum of $2,495.25 to pay indebtedness incurred by defendants prior to the institution of this suit for the benefit of both plaintiffs and defendants, and to pay for repairs necessary for the protection and preservation of the property in controversy, and to execute a mortgage upon said property to secure the sum so borrowed. Prom this order plaintiffs in the court below prosecute this appeal.

The order, after authorizing the defendants to borrow the sum above mentioned and execute a mortgage upon the property to secure same, contains the following recitations: “It appearing to the court that all of said above-named sum, save the sum of $1,000, has already been paid out by defendant members or incurred legitimately by them for current salaries and expenses of the congregation before the filing of this suit and for the benefit of both plaintiff and defendant members, and for interest on the indebtedness fixed by lien on the real property of the congregation hereinafter described, which indebtedness was incurred and contracted for before the filing of this suit, and for general repairs on the property of the congregation for the protection and benefit and upkeep thereof, and for insurance premiums. * * * It appearing to the court that it is necessary for the protection and preservation of the synagogue and buildings upon the hereinafter described property to expend thereon immediately the sum of $1,000 in repairs, it is ordered by the court that said amount be so expended for such purpose, and that the said repairs be done under the direction of the court; the contract therefor and the expenditures to be approved by the court before being entered into and made.”

The evidence in the record is sufficient to sustain the fact findings of the trial judge above set out, and upon these facts the court was authorized to make the order allowing the defendants to borrow the money for the purposes stated and to secure its payment by a mortgage upon the property. The defendants ought not to be required, pending the deterinination of this suit, to pay debts which were a charge upon the congregation and its property before the suit was instituted, and to pay the necessary costs of the preservation of the property, and the order does no more than permit the defendants to charge the property with such debts and costs. The judgment is affirmed.

Affirmed.