text:
    MATAGORDA COUNTY et al. v. HORN.
    (No. 7009.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 17, 1915.
    Rehearing Denied Nov. 24, 1915.)
    Highways <&wkey;90 — Road Districts — Pb,o - ceeds of Bonds — Beeach of Contkact.
    Under Rev. St. art. 627, declaring that any county or any road district may issue bonds for the purpose of constructing and operating macadamized, graveled, or paved roads and turnpikes, payment of a claim for breach of a contract for work on a road cannot be made out of the proceeds of road bonds, for such claim is one closely akin to a tort, and is not one for the construction, maintenance, or operation of roads or turnpikes.
    [Ed. Note. — Eor other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <&wkey;>90.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by W. R. I-Iorn against the County of Matagorda and Matagorda County Road District No. 2. From a judgment against the latter defendant, it appeals.
    Reformed and affirmed.
    W. E. Davant and Krause & Wilson, both of Bay City, for appellant. Gaines & Cor-bett, of Bay City, for appellee.
   LANE, J.

W. R. Horn brought this suit against Matagorda county, and Matagorda county road district No. 2, a road corporation, organized under, and exercising the rights and powers conferred by, article 627 of the Revised Statutes of 1911, to recover the sum of $1,885.50, for damages alleged to have been suffered by him by reason of the breach of a certain contract entered into between him and said road district for the hauling and distribution of certain mud shell upon the roads of said road district. Mata-gorda county was dismissed from the suit before the trial. Judgment was rendered against the road district in favor of W. R. Horn for the sum of $550. The judgment also directs that a proper warrant be issued by the proper officers and delivered to Horn, to be paid out of the proceeds arising from the sale of road bonds issued and sold by said road district, under the provisions of said article 627—

“for the purpose of constructing and maintaining, and operating macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

From the judgment so rendered said road district has appealed.

The only error assigned is, in substance, that the trial court erred in directing and decreeing that said judgment so rendered shall be paid out of the proceeds arising from the sale of said bonds, because said judgment was not upon a claim or demand for services or labor performed, or for any aid otherwise given, or performed, in the construction, maintenance, or operation of said roads or turnpikes, and therefore was not for any of the purposes for which bonds can be issued and sold under the provisions of the statutes, and cannot lawfully be made payable out of said road funds. It seems to be assumed by all parties to the suit that at the time this suit was brought, the bonds had been sold, and the proceeds of such sale were in the custody of the proper officer for the uses for which they were sold. Nothing to the contrary being shown, we shall also so assume. After the issuance of said bonds said road district entered into a contract, which it was authorized to make, with appellee, Horn, to haul and distribute certain mud shell on its contemplated roads for an agreed compensation. Horn made all necessary preparations for the hauling of said shell, and notified the proper officers of said road district that he was ready to begin the performance of his part of the contract, and at all times stood ready, willing, and able to fully so perform the same. The road district, however, wholly failed and refused at all times to furnish said shell for hauling and wholly breached its contract. The judgment recovered by Horn was upon his claim for profits he would have made had the contract not been breached by the road district, and for the value of feed for his teams which remained idle because of such breach of contract. That Horn and the road district entered into the contract alleged; that it was a contract which the road district had the lawful right to make; that the road district breached the contract and that appellee Horn suffered damage in the sum of $550, the amount of recovery — is not questioned. The road district is not complaining of the recovery, or the amount of the judgment rendered against it, but only of that part of same as directs its payment out of said funds.

Article 627, supra, under which, said road district was incorporated, and from which it derives its authority to issue and sell bonds, for the construction, maintenance, and operation of roads and turnpikes, reads as follows:

“Art. 627. Any county in this state, or any political subdivision or defined district, now or hereafter to be described and defined, of a county, is hereby authorized and empowered to issue bonds, or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such county, or political subdivision, or defined district thereof, and to levy and collect such taxes to pay the interest upon such bonds and provide a sinking fund for the redemption thereof, for the purpose of constructing and maintaining and operating macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

Funds arising from the sale of bonds issued and sold under the provisions of the article quoted can be used only for the purposes expressly named therein, or for purposes implied thereby, by a fair and reasonable construction thereof. Unless the claim of appellee, Horn, can be held to be a claim founded upon some aid given in the construction, maintenance, or operation of said roads and turnpikes, authorized to be constructed, maintained, and operated by means of said bond issue, under the statute, the same cannot be lawfully paid out of proceeds arising from the sale of such bonds. We cannot see how a claim against said road district for damages for breach of contract can be construed to be a claim “for constructing, maintaining, or operating roads or turnpikes,” or in any other way aiding in such construction, etc. The claim of appellee is for damages for breach of contract; and, while it is not for tort, it is close akin to a claim for tort, and we think cannot be lawfully paid out of the road construction funds of the appellant That there should be some adequate remedy for the relief of appellee cannot be questioned, but that this court is powerless to supply such remedy or to give such relief, in the absence of some lawful authority, is equally true. When the law imposes restrictions upon the uses of special funds lawfully in the hands of public officers, they cannot lawfully divert such funds from the specific purpose for which it was collected. In the case of City of Sherman v. Smith, 35 S. W. 294, the court says:

“The argument that unless a mandamus be granted, in some form requiring provision for or payment of this claim, it might never be satisfied is not a consideration that would justify the diversion of a city’s income from the purpose to which the law intends it to be primarily applied.”

Harrison County v. Love, 94 Tex. 398, 60 S. W. 871, is a case disclosing that Harrison county, under an act of the Legislature passed April 12, 1871 (Acts 12th Leg. c. 37), issued certain bonds. The law under which said bonds were issued, among other things, provided that all taxes levied and collected thereunder should be paid into the state treasury and paid out upon warrant of the comptroller, and should be applied solely to the objects for which they were levied and collected, as follows: First, to the payment of the expenses of assessing and collecting the same; second, to the payment of the annual interest of such bonds, and not less than 2 per cent, of the principal; and, third, that if there remained any excess after said above payments, for the current year, it should be used in the purchase and cancellation of said bonds. The taxes were levied and collected as provided by the law and placed in the hands of the state treasurer. After all the bonds issued had been paid off and canceled, there remained in the hands of said treasurer the sum of $27,000. In 1893 the Legislature passed an act which provided:

“That whenever it shall appear to the state treasurer that any money paid into the state treasury by any county of this state for the liquidation of * * * bonds issued by such county remains to the credit of such county after all of said * * * bonds and interest have been paid, said state treasurer shall pay to the treasurer of such county such remaining sum, and the treasurer of such county shall receipt therefor.” (Acts 23rd Leg. c. 53.)

Upon the refusal of the comptroller to draw his warrant upon the state treasurer for said sum of $27,000 Harrison county sought by mandamus to compel the comptroller to issue his warrant for said sum. In deciding the case the Supreme Court, speaking through Judge Gaines, says:

“We think it a clear proposition that, before the comptroller can be required to draw his warrant upon the treasurer, the Legislature must prescribe the duty. We also think it clear that the act of April 12, 1871, the provisions of which, in so far as they bear upon the question before us, we have set out either in their express terms or in substance, nowhere makes it the duty of the former to draw upon the latter in favor of any party for the surplus of a fund raised for the payment of the bonds provided for after the bonds have been fully paid. The act is as silent upon the subject as if no such surplus was contemplated. * * * It was probably thought that the provision which prescribes that the comptroller shall use any surplus which might remain from the annual collection after paying the annual interest and 2 per cent, of the principal, as prescribed by the act, in the purchase of the bonds, was a sufficient provision for the disposition of any surplus that might arise. However, it is clear that there is no express provision for the disposition of a final surplus. It is true that section 11 expressly provides that the treasurer shall pay out the fund upon the warrants of the comptroller, and from this provision there is a clear implication that the comptroller shall draw his warrants when necessary to carry out the provisions and purposes of the act. But the statute does not leave us in doubt as to the objects to which the fund, when collected, should be applied. These are expressly declared by section 8. The application of the money is: (1) To the expenses of collecting; (2) to the payment of the annual interest and 2 per cent, of the principal; and the balance, if any, in the purchase of the bonds. Nothing being said as to any final surplus, we think it clear that the Legislature did not intend to provide for such disposition in the act. This was probably the result of inadvertence, but it may have been that such provision was purposely omitted for the reason that the contingency which would require such disposition would not arise for many years, and it may have been deemed best to leave the matter to the discretion of future Legislatures. The duty of the comptroller as to drawing warrants being confined to the payment and purchase of the bonds, we conclude that under the original act he was not authorized to determine the disposition of the final surplus, and that he was not empowered to draw his warrant therefor in favor of the county from which the fund came.”

■ Funds created for construction of roads by issuance and sale of bonds are held by the commissioners or other officers in trust for the purposes expressed in the statute, and cannot be diverted to other uses nor to the payment of damages caused by the negligence, or other wrongful conduct of the commissioners. 25 Cyc. § 3, page 198. In the case of Nugent v. Levee Commissioners, 58 Miss. 197, at page 217, in differentiating between corporations for strictly public purposes, without power to exact profits, and those with such powers and purposes, it is said:

“They [the commissioners] derive no other profit from the execution and maintenance of the works than a share in the beneficial results anticipated therefrom. The funds for their construction and maintenance are raised by rates imposed upon the district supposed to be benefited thereby; but no business is authorized to be carried on for profit, nor are any tolls authorized to be taken for any use of the works. The object is public, though the direct benefit is local. * * * The commissioners have no property except such as is strictly incident to the machinery for making and maintaining the works and raising the necessary rates, and have no power to levy a rate for any other purpose.”

Again, 58 Miss, at page 220, same volume, it is said:

“In some [cases] it is held that the liability arises from the constitution of the body and the business it is charged with, if there be no restrictive language; in others it is said there ought to be an express provision for liability before it can attach. In this case the meaning of the act seems to be clear. The tax is levied, as expressed in the statute, ‘for the purpose of repairing and constructing the levees, and for carrying into effect the object and purpose of securing the counties of Bolivar, Washington, and Issaquena from overflow from the Mississippi river.’ This does not include the very different object of paying damages for the default and misconduct of the persons charged with the execution of the act. This expression of the purpose of the tax in the act is an exclusion of all other purposes. If such damages were chargeable on the fund, their payment might prevent the accomplishment of the purpose for which the tax was levied.”

Having reached the conclusion that the trial court erred in decreeing and directing that the judgment rendered be certified and approved, and that a warrant be issued and delivered to appellee to be paid out of the funds of said road district which arose from the sale of its bonds, we here order that said judgment be, and the same is, reformed so that that portion thereof which orders the road superintendent to certify said judgment' to the commissioners’ court of Matagorda county, and orders said court to approve same and issue and deliver to appellee a warrant against the funds of said road district No. 2, be vacated and held for naught, and it is further ordered that said judgment, as reformed, be and the same is hereby affirmed.

Reformed and affirmed.
      <S=»lTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    BROUSSARD et al. v. LE BLANC et al.
    (No. 44.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 16, 1915.
    Rehearing Denied Jan. 20, 1916.)
    1. Appeal and Error <&wkey;931 — Presumptions —Findings.
    Where the record does not show that findings of fact and conclusions of law were not requested, it will, such findings and conclusions having been filed, be presumed that they were requested.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. <&wkey;>931.]
    2. Appeal and Error &wkey;?230 — Grounds op Review — Presentation Below — Necessity.
    Where, after findings of fact and conclusions of law were filed, exception was taken and notice of appeal given, and appellant after the adjournment of the term filed a paper complaining that there was no request for such findings and conclusions, and protesting against inclusion in the transcript, but no action was taken upon such paper, appellant is not in a position to complain on appeal of the filing of the-findings and conclusions.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&=^230.]
    3. Partnership <&wkey;203 — Action by Firm — Death op Partner.
    Where a sum of money was paid over by one member of a firm with the consent of the others, an action to recover the same does not abate on the death of one of the partners, and judgment is valid, though neither his heirs nor legal representatives were made parties.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 375; Dec. Dig. &wkey;203.]
    4. Appeal and Error <&wkey;1008 — Review — Findings.
    The appellate court will defer to findings of fact by the trial judge, who heard the evidence and saw the witnesses.
    [Ed. Note. — For other oases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. <3&wkey;1008.]
    5. Bankruptcy <&wkey;296 — Trustees — Rights op.
    Where a partner was a trustee in bankruptcy of a debtor to his firm, and his copart-ners secured an injunction in a state court against his delivery to his successor of alleged partnership funds received by the trustee, from the possession of the bankrupt, the funds, having been turned over to the successor without notice of the injunction, are no longer subject to the jurisdiction of the state court.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 414; Dec. Dig. &wkey;>296.]
    6. Appeal and Error <&wkey;544 — Record—Exceptions, Bill op.
    Where alleged improper argument was not preserved by bill of exceptions, and only the pleadings containing reflections on appellants were before the appellate court, tbe matter cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    7. Limitation of Actions <3=138 — Running of Statute — Effect.
    Where plaintiffs resorted to action in the state court, instead of the federal court, in a cause of action arising out of bankruptcy proceedings, they could not complain, having been defeated in the prosecution of the action in the state-court, that because of the time consumed limitations against an action in the federal courts had run.
    [Ed. Note. — For other cases, see Limitation of ^Actions, Cent. Dig. § 573; Dec. Dig. <§=
    8. Appeal and Error <§=931 — Review — Presumptions.
    Though, in an action tried to the court, incompetent evidence was received, it will be presumed that the trial judge was not affected by such evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. <§=931.]
    Appeal from District Court, Jefferson County; Robert G. Street, Judge.
    Action by J. -E. Broussard and others against E. J. Le Blanc and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Lipscomb & Lipscomb, of Beaumont, for appellants. U. F. Short, of Dallas, Spotts & Matthews, of Houston, and Smith, Crawford & Sonfield, of Beaumont, for appellees.
   BROOKE, J.

At the outset in this case we are confronted with a motion filed by the appellants to strike from the transcript in this cause the findings of fact and conclusions of law, for the reason, as alleged, that no findings of fact nor conclusions of law were reguested of the trial court, in fact, or by any manner that appears of record, and that said document has no place in the transcript of these proceedings, and that said findings of fact and conclusions of law do not fairly represent the facts adduced. There seems to be some uncertainty in the decisions of this state with reference to the matter complained of, and a brief review of a few of same will therefore be necessary.

In the case of Otto et al. v. Halff et al., 32 S. W. 1053, it was said:

“Appellants contend, among other things, that the conclusions of fact filed by the trial judge should not be given any effect, because they were filed without having been requested by either party. There is no force in this point, as it does not affirmatively appear by the record that such was the case; the only suggestion of it being in a motion to strike out the conclusions, which was overruled, perhaps for the reason that a request had been made. We might well presume, from the filing of the conclusions, that a request therefor had been made.”

In the case of Riggins v. Trickey, 102 S. W- 918, it is said:

“While it may be that under the provisions of article 1333, R. S. 1895, the trial court has no authority to file his conclusions of fact and law, without being requested to do so by one of the parties, and the same should not be considered, still, in the absence of a showing in the record that he was not requested to file such conclusions, the presumption - will be indulged that the court filed the conclusions of fact and law, because he was requested so to do. This is said, for the reason that it is the contention of appellee that there was no request to file the conclusions of fact and law, and therefore they should not be considered.”

In the case of Le Blanc v. Jackson, 161 S. W. 62, the following language is used:

“The trial court filed and had incorporated in the record conclusions of fact and law, but there was no request by any party therefor, so far as is shown by the record. The exact status of such findings has not been, so far as we have been able to find, fixed by the courts. It was held by this court in City of Houston v. Kapner [43 Tex. Civ. App. 507] 95 S. W. 1103, in considering an objection to the consideration of such .conclusions, on the ground that, ‘when such conclusions are voluntarily filed by the judge, neither party is required to take notice of them, and no exception to the conclusions, nor assignments predicating error on the findings of fact, therein contained, are required of the parties against whom such findings are made, to entitle them to attack the judgment on the ground that it is unsupported by the evidence. * * * The question of whether such conclusions can be considered by the appellate court is not presented, and we do not feel called upon to decide it.”

Objection is also made by appellees to the consideration of the motion in the instant case, for the reason that it was filed more than 30 days after the filing of the transcript, and that it comes too late, under rule 8 of the Courts of Civil Appeals (142 S. W. xi). The transcript in this case was filed on June 21, 1915. The motion to strike out the findings of fact and conclusions of law was filed on November 15, 1915. Rule 8 for the governing of Courts of Civil Appeals is as follows:

“All motions relating to informalities in the manner of bringing a case into court, shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals; otherwise the objection shall be considered as waived, if it can be waived by the party.”

Even if the motion be conceded to have been filed too late, and for that reason could not properly be considered by this court, we are of the opinion, from the authorities, that the conclusions of fact found by the trial court in this case must necessarily be considered. The presumption obtains always that when conclusions of fact are found in the record filed in the proper time by the trial court, as in the present case, the same were requested, in the absence of an affirmative showing made at the time that the same were not requested by either party to the suit.

This record shows that the conclusions of fact were filed on the 26th day of March, 1915, and it appears from the record that no objection was made that they were not requested, but on the contrary, that exception was taken and notice of appeal given, and tiie record shows it was not brought affirmatively to the notice of the trial court in any way, and that no action was taken thereon during said term of court; hut after the adjournment of said court, and on the 26th day of May, 1915, the plaintiffs in the lower court filed a paper, and used the following language:

“Now come the plaintiffs, and except to the findings of fact and conclusions of law, and say they are distinctly unfair, and filed without the request of anybody made in open court, and without any request from plaintiffs, or their attorneys, and plaintiffs protest against having said document included in the transcript.” Signed by counsel.

No action was taken, so far as the record shows, upon the filing of this paper, which was not shown to and no issue was made in the lower court in the proper time, if -it be true, as complained of by appellants, that the conclusions were not requested, but the court was permitted to adjourn without such objections having been made as to such conclusions having been filed without request. We are of opinion that appellants are not in a position to. complain, and we are further of the opinion that in this case, as in all others, the presumption must be indulged that the findings of fact were requested; the record not affirmatively showing by action at the time that no such request was made. Therefore the motion to strike out the findings of fact and conclusions of law will be overruled.

In the month of June, 1906, Moore & Bridgman, a firm composed of E. F. Moore and F. W. Bridgman, who were engaged in rice farming in the county of Jefferson and state of Texas, became insolvent. The property was incumbered by mortgages to the appel-lees and to the Houston Rice Mills. They were indebted to other creditors, whose debts were unsecured. A portion of their property had been removed from Jefferson county, Tex., where their business was conducted, to the state of Louisiana, and there attached by the Parian & Orendorf Company, who is one of their creditors. On the 16th day of June, 1906, they filed in the United States District Court for the Eastern District of Texas, at Beaumont, their voluntary petition in bankruptcy, and were on the 26th day of said month adjudged bankrupts. Appellants were scheduled as creditors holding a claim partially secured for the sum of $9,000. E. J. Le Blanc, one of the partners in appellants’ firm, was appointed trustee, and qualified as such, giving a bond in the sum of $5,000, which was subsequently increased to $20,000, with J. E. Broussard, the partner holding the largest interest in appellants’ firm, as surety. The bankrupts were cultivating two farms in Jefferson county at the time their petition was filed — one containing 1,100 acres, known as the Stengle farm; and the other containing 290 acres, known as the McCrimmin farm. Crops of rice were growing on each. They owned a lot of teams, agricultural implements, and other personal property, which were used in cultivating these lands. The crops grown on the Stengle farm, the teams, implements, and other personal property were scheduled as assets. The crop of rice grown on the McCrimmin tract was withheld therefrom. Complaint was made by the creditors of this omission. Thereupon the trustee undertook to resign, accompanying his resignation with a statement of his account. Creditors opposed the trustee’s resignation, and denied the account which accompanied it. They charged that Moore & Bridgman were the owners of the McCrimmin rice, and were in possession of the same when they were adjudged bankrupt. That it was delivered to Le Blanc, trustee, when he was appointed and qualified as such, and that he took possession of it as their property. The account of the trustee was denied, and it was alleged that it was grossly exaggerated; that the bankrupts and their families had been put upon the pay rolls at extravagant salaries, when they performed little service; and that the estate had been administered for their accommodation and benefit of the bankrupts in the appellant partnership.

Le Blanc filed his reply. He alleged the Beaumont Rice Mills were owners of the Mc-Crimmin rice, and that the bankrupts were in possession of it as the representatives of the owners. The facts constituting the alleged ownership are pleaded. Appellants, in the name of Le Blanc, insisted that the referee was without jurisdiction to determine the matters in controversy between the creditors and the trustees. Their objections to the jurisdiction were sustained by the referee. Upon his petition for review his conclusions were overruled, and the contention of the creditors sustained. It was held by the United States District Court that the property in controversy belonged to the bankrupts ; that as such it came into the possession of Le Blanc, and said trustee was directed to account for the same in the administration of their estates and to pay the value thereof, and deposit to the credit of Moore & Bridgman the value of said rice. The trustee appealed from the decision of the District Court, and at the same time filed his petition for review. Each was heard in the Circuit Court of Appeals at New Orleans on the 4th day of January, 1909, and the judgment of the trial court was affirmed. Upon a return of the mandate to the trial court, creditors filed their petitions for an order upon the trustee to show cause why he failed to comply with the order of the court to account for the fund found to have been in his possession and pay the same into court; that he should he fined for contempt, and committed unless such payment was made. Thereupon appellants began the present action to prevent their copartner, Le Blanc, from withdrawing the funds of the partnership to pay the sum which he has been directed to pay by the United States District Court. A temporary restraining order was granted, and thereafter made known to the federal court by Le Blanc, who sought to be relieved of the necessity of violating the order which he claimed he would have to violate if he brought into court the sum required by the federal court, since he claimed the money in question had been taken and appropriated by his firm, and he had no other source for obtaining it, and he suggested that issues had been tendered in the state court and the fund actually deposited there by his firm, and prayed that the order of the federal court be so modified as to admit of his merely accounting for the fund as part of the estate, and being discharged, leaving his ownership and right of custody to be tested by plenary trial. The federal court denied his application for modification, and notified him that he would be immediately committed unless he produced the fund. He thereupon took the fund of about $13,000 and placed it in the federal clerk’s hands. At the same time he was dismissed as trustee, and appellee W. J. Crawford was appointed in his stead.-

The plaintiffs in this suit gave notice to the clerk of the federal court and also to Crawford and the Gulf National Bank, as a depository for the bankruptcy funds, that the fund in question was taken in violation of the injunction issued by the state court in this cause, and thereafter said Crawford and the bank were made parties hereto by supplemental bill, and they filed their exceptions, pleas, and answers. Later the federal District Court enjoined prosecution of this suit against them. There was an appeal therefrom to the Supreme Court of the United States, which reversed them both, holding that the state court had a right to enjoin against taking the partnership funds, and to try the question of whether Crawford had notice, when he received the funds, of their having been taken in violation of the state court’s injunction.

On the trial of the case in the state district court judgment was rendered generally against plaintiffs, that they take nothing and pay all costs. The plaintiffs filed and urged their motion for new trial, which was overruled, to which they excepted and gave notice of appeal. Later the plaintiffs filed and urged a second motion for new trial, and to reconsider, showing that one of the copart-ners interested in the suit between the partners was dead at the time of the trial, and that neither his heirs nor legal representatives had been made parties, and urged this, among other grounds, why the judgment ought to be set aside. This motion was also overruled, and exception reserved, and notice of appeal given, and the case was brought to this court in due course.

The court trying the ease filed the following findings of fact, which of necessity must be incorporated in the opinion, to wit:

“(1) On the 16th day of July, 1906, Moore & Bridgman, a firm composed of E. F. Moore and IT. W. Bridgman, filed a voluntary petition in bankruptcy in the United States District Court for the Eastern District of Texas at Beaumont, and were on the 25th day of said month adjudged bankrupts.
“(2) The Beaumont Rice Mills, a partnership composed of plaintiffs, J. M. Hebert, D. C. Hebert, L. C. Hamshire, J. A. Bondages, J. E. Broussard, and the defendant, E. J. Le Blanc, were at that time, and for a long time had been, conducting a rice milling business in Beaumont, and were scheduled as a creditor of said bankrupts to the amount of $9,000.
“(3) The bankrupts had raised and cultivated a crop of rice on a tract of land containing 280 acres of leased land known as the McOrimmin farm. The crop growing thereon was not scheduled as the property of the bankrupts.
“(4) The defendant E. J. Le Blanc was appointed trustee by the referee in bankruptcy, and duly qualified a's such by giving bond in the sum of $5,000, and otherwise complying with the order appointing him, and took charge of the estate of said bankrupt.
“(5) After remaining in possession of the property of the bankrupts for a time, complaint was made by the creditors that no inventory had been filed and that the bond he had given was insufficient. He thereupon undertook to resign his trust, and tendered his resignation in writing, accompanied by an account of his administration of said estate. Objection was made to his account, creditors maintaining that the rice grown upon the McCrimmin land, amounting to 3,583 sacks and of the value of $11,542.-25, was the property of the bankrupts, that it had come into his possession as trustee, and that he should be charged with its value.
“(6) The claim by the creditors was resisted on the ground that the bankrupts had sold the rice to the Beaumont Rice Mills in payment of their indebtedness to said mills and that it had, been delivered to said Beaumont Rice Mills and was no part of the estate of the bankrupts. It was further insisted that the referee was without jurisdiction to determine the matters in controversy.
“(7) Upon a trial before the referee the objection urged to the jurisdiction by the trustee was sustained and the action of the creditors dismissed.
“(8) Upon a petition for review the judgment of the referee was reversed, and the rice in controversy held to be the property of the bankrupts; that it was of the value of $11,642.25, and the trustee was held to account in that sum, and ordered to pay the same into court.
“ (9) From this action the trustee appealed to the Circuit Court of Appeals, and also filed his petition for review. Upon hearing in the Circuit Court of Appeals, judgment of the trial court was affirmed, and the liability of the trustee for the value of the rice finally established.
“(10) Upon the return of the mandate, the trustee not having complied with the order directing the payment of said sum of money, the creditors applied for order to show cause why he should not be committed for contempt. From the hearing of said application the trustee was directed to pay forthwith or be committed for contempt.
“(11) Whilst acting as trustee for the estate of the bankrupts, defendant, Le Blanc’s account as such was kept upon the books of the Beaumont Rice Mills on all of his transactions in connection with that estate.
“’(l2) At the time this suit was brought, the defendant Le Blanc had never threatened to take the sum necessary to comply with the court’s order from the funds of the Beaumont Rice Mills. His copartners, the plaintiffs in this case, never forbade him to take such funds for that purpose. Neither of them ever notified the bank in which said funds were deposited to decline the payment of a check drawn for that purpose.
“(13) On the 12th day of April, 1909, the judgment of the District Court against the trustee was satisfied by the payment in cash of ?13,-13Q.50, being the amount of the judgment against Le Blanc, with interest, obtained from the bank upon a check drawn in the name of the Beaumont Rice Mills by E. J. Le Blanc, and his account as trustee of Moore & Bridgman, bankrupts, on the books of the Beaumont Rice Mills, is charged with that sum. This entry was made upon the books with the consent of all plaintiffs in this case. Neither the deputy clerk of the court, to whom the money was paid directly, nor the substitute trustee, to whom he turned it over, were notified that it was partnership funds until after the money had been actually applied in payment of the judgment.
“(14) The court finds from all the evidence in the case that said judgment was paid by the Beaumont Rice Mills with the knowledge and consent of all plaintiffs in this case, and that it was paid willingly; that the plaintiffs intended by the filing of this action to attempt to recover the sum paid by them for the value of the rice to comply with the order of the court for their copartner, Le Blanc, and not for the purpose, alleged in the petition, of preventing their copartner, Le Blanc, from depleting their funds, by withdrawing said sum over alleged objections, which they never made. The pounding was not in good faith.
“Conclusions of Law.
“The court concludes that the plaintiffs are not entitled to any recovery from the facts in this case, and that their application for an injunction should be denied, and the cause dismissed, to which findings both of fact and law the plaintiffs except.
“Robert 6. Street,
“Judge 58th District Court, Presiding by Exchange of District.

Appellants’ first assignment of error assails the action of the lower court in proceeding to judgment in this case without having new parties in place of plaintiff L. Hamshire, deceased, before it. The judgment herein rendered, they say, is void because at the time of its rendition the' plaintiff L. Hamshire a necessary party, was dead, and neither his heirs nor legal representatives were made parties. There was no suggestion made in the lower court of the death of Ham-shire; appellants alleging that it had been overlooked. The cause was tried on the 3d day of February, 1915, and it was not until the 20th day of March, 1915, that plaintiff filed a motion to set aside the judgment, because of the fact of the alleged death of Hamshire. We understand the law to be that, in a suit by partners for the benefit of the partnership to preserve and protect its property, if one dies pending the action, the suit does not abate, but the right to prosecute the action survives, and the surviving partners may proceed with the action. Dunman v. Coleman, 59 Tex. 199; Gunter v. Jarvis, 25 Tex. 582; Blackman v. Green, 17 Tex. 222; Thomas et al. v. Greene County, 159 Fed. 343, 89 C. C. A. 405; Sweetser v. Fox, 43 Utah, 40, 134 Pac. 599; Northness v. Hillestad, 87 Minn. 304, 91 N. W. 1112; O’Shea v. Kavanaugh, 65 Neb. 639, 91 N. W. 578; Bond v. Hilton, 51 N. C. 180; Moore v. Terhune, 161 Ill. App. 155; Robinson v. Pikeville Bank, 56 S. W. 660; Hathaway v. Stone, 215 Mass. 212, 102 N. E. 461.

A different case would have been presented if it had been shown that Le Blanc, a partner in appellants’ firm, was about to take partnership funds and apply the same to the payment of his own individual debt, over the objection of appellants, and without their consent; but from the findings of fact made by the court below, which we feel obliged to consider, the money was taken with their consent, and without objection on the part of appellants. -The court, in its findings, as above set out, says that from all the evidence the judgment was paid by the Beaumont Rice Mills, with the knowledge and consent of all the plaintiffs in this case, and that it was paid willingly, and that the plaintiffs intended, by the filing of this action, to attempt to recover the sum paid by them for the value of the rice, and not for the purpose, alleged in the petition, of preventing their copartner, Le Blanc, from depleting their funds by withdrawing said sum, over alleged objections, which they never made.

The trial court was in a better position, having heard the testimony, and the case being tried before the court, to judge of these matters, and we are not disposed to disturb his finding. The appellants’ first assignment is therefore overruled.

The appellants’ second assignment of error is is follows:

“The decision of the Supreme Court of the United States, made a part of the evidence in this cause, showed that the temporary injunction issued herein by Judge Hightower was properly ordered and issued, and that the only inquiry necessary to be made in this cause was whether the trustee, Crawford, at the time of his receiving the fund in question, took it with notice that it was by way of violation of the state court’s injunction, and the court has erred in upholding him and other federal court officers in such violation of' the temporary injunction issued under the order of Judge High-tower herein, since the evidence shows that not only Crawford had such notice, but that the federal court officers concerned in the evasion of this court’s jurisdiction had notice of the existence of this court’s jurisdiction and had notice of the existence of said injunction and its bearing upon this case.”

The trial court found that:

“Neither the deputy clerk of the court, to whom the money was paid directly, nor the substitute trustee [Crawford]; to whom he turned it over, were notified that it was partnership funds until after the money had been actually applied in payment of the judgment.”

The trial court having found that notice had not been given until after the money had been actually applied in, payment of the judgment, and, as said before, it having heard the testimony in the case and passed upon the credibility of the witnesses, we are not inclined to disturb its findings on this point. Therefore we overrule appellants’ second assignment.

Appellants’ third assignment claims that the evidence shows that, when the fund in question came into tile hands of the several defendants, it was partnership funds of plaintiffs and defendant He Blanc, under the protection of a temporary restraining order then issued by the direction of Judge L. B. Hightower, Jr., then judge of the court, and that, before any steps were taken in the administration of same by the federal court officers, all of them were fully apprised of the violation of the state court injunction involved in their receipt of the funds, and that it was clearly their duty forthwith to restore said fund to plaintiffs’ partnership funds, and that it was error in this court not to so order.

This is practically the same as the second assignment of error, and, as above said, the court below having found that the money was not received with notice until it had been actually applied in payment of the judgment, what has been said above will apply to this assignment, and it is therefore overruled.

Appellants, by their fourth assignment of error, challenge the action of the lower court in permitting impertinent reflections against plaintiffs to be made on the trial, involving charges of fraud, given utterance to in pleadings and remarks of counsel for creditors of the bankrupts, and in documents presented by them and introduced in evidence by counsel for defendants, Crawford, and the creditors of the bankrupts, and not supported by the evidence.

There is no bill of exceptions in the record to the introduction of illegal testimony or impertinent reflections, and it is presumed that, if such were made, objection would have to be promptly taken, and a bill of exceptions would be before this court complaining of such action, and showing the language used and wherein the same was incompetent. In the absence of a bill, we cannot say from the record before us, which only contains the written pleadings, and does not contain remarks of counsel, that no such impropriety was indulged as would cause this court to reverse this cause. The said assignment is therefore overruled.

The appellants, in their fifth assignment of error, claim that the court erred in refusing to require defendants to restore the fund taken in violation of the temporary injunction, for this: That the ruling, if upheld, would result in these plaintiffs having to prosecute in the federal court a new suit, which is probably barred by limitation, whereas the trustee in bankruptcy could assert his and the creditors’ equities, if any, in the fund by suit in the federal court, without fear of the bar of limitation, since it has been held that such a suit by the trustee would not be barred or affected by limitation statutes.

The court that tried the ease, having before it the testimony of the transactions which resulted in the producing and withdrawal of this fund, found that the money was voluntarily paid, and in refusing to require the defendants to restore the fund we cannot say such action was without warrant, and the result of the action of the lower court in so refusing is not thought to be a proper subject for investigation, as we have only to deal with the case as presented to us, and as shown by the record; but it may be said that when a right is claimed to be violated, and a remedy is resorted to, the party would not have cause to complain that in the attempted enforcement of the remedy time has been consumed covering the period of limitation for a different remedy. The fifth assignment is therefore overruled.

Their sixth assignment of error complains that the court erred in rendering judgment against the plaintiff, and they say that under the evidence the fund in question was manifestly taken from the funds of the plaintiffs’ partnership in violation of the order of this court, and that at the time it was delivered to the trustee in bankruptcy, and that at each step from the time it was wrongfully withdrawn from said funds the defendant W. J. Crawford, and all those through whom it passed to his custody, had notice that said fund had been taken by defendant Be Blanc in violation of this court’s order.

The findings of the lower court are against appellant on this question, and we do not feel, in view of all the facts, which were gone into at length and considered by the lower court, that we would be justified in holding that the court committed error in this respect. The case seems to have been fully developed, and while incompetent and irrelevant matters, perhaps, were introduced in evidence, it was being tried before the court, and in the consideration of the whole ease the court, perhaps, was justified in its finding.

We feel confident that the trial court, who heard the evidence in its entirety, and whose province it was to pass upon the evidence, did not allow improper evidence to influence his action, and thus his findings, and we cannot say from this record that the case was not properly disposed of by the lower court.

The sixth assignment is therefore overruled, and the judgment of the lower court is in all things affirmed.

OONLEY, C. J., recused.
      ©u^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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

      <§=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, 0. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. COSIO.
    (No. 887.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 5, 1916.
    Rehearing Denied Jan. 26, 1916.)
    1. Attorney and Client <&wkey;l48—Compensation—Assignment oe Contingent Interests.
    Where the attorney of an injured servant suing for damages was before the filing of the petition assigned one-lialf the amount which might be recovered in the action, the attorney’s interest was contingent upon collection, and was a mere assignment of funds to be collected.
    [Ed. Note. — For other eases, see Attorney and Client, Cent. Dig. §§ 352, 353; Dec. Dig. <&wkey;> 148.]
    2. Assignments «&wkey;129 — Necessary Parties —Nature of Interest.
    An attorney to whom was assigned a contingent interest in the amount to be recovered was not such an interested party as to require that he be made a party to the action or to make the petition which failed to make him a party subject to a plea in abatement for defect of parties.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 213-219; Dec. Dig. &wkey;129J
    3. Master and Servant <&wkey;256 — Injuries to Servant — Actions — Pleading — Sufficiency.
    Where the petition of a servant seeking recovery for his injuries showed that the defendant was a railroad operating from Texas into New Mexico, and that the servant was employed in maintaining that line in repair, and where the answer alleged that the defendant was an interstate carrier, it was not necessary for the plaintiff to state that he brought his action under the federal Employers’ Liability Act (Act April 22,1908, c. 149, 35 Stat. 05 [U. S. Comp. St. 1913, §§ 8657-8605]), since the facts alleged were sufficient without specific statement to show that it was brought under that act.
    [Ed. Note. — For other cases, see Master and Servant. Cent. Dig. §§ 809-812, S15; Dee. Dig. <&wkey;256J
    4. Master and Servant <&wkey;284^-lNJURiES to Servant — Actions — Pleading — Questions for Court.
    In a servant’s action for injuries m operating a motor tool car on an interstate railway, it is a question for the court whether the injuries were received while employed in interstate or intrastate commerce, thereby determining whether state or federal laws shall control.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132: Dec. Dig. <&wkey;2S4.]
    5. Commerce &wkey;>27 — Interstate Commerce-Federal Employers’ Liability Act.
    Before recovery can be had under the federal Employers’ Liability Act, it must appear first that the defendant railroad was engaged at the time in interstate commerce, and that the employé was' injured while actually so employed.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. &wkey;>27.]
    6. Witnesses <&wkey;209 — Examination—Cross-Examination.
    It is not error in a servant’s action against the employing railroad to permit a witness to state that the track was uneven and rough and unballasted, where defendant had introduced him, and on direct examination had elicited the testimony that the road had no track rough enough to have caused plaintiff to lose his hold on the car with the resultant injury claimed, since that was proper cross-examination, and the testimony so elicited was'material.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. &wkey;269.]
    7. Appeal and Error <&wkey;1050 — Review—Evidence — Harmless Error.
    Where a witness for defendant stated that defendant’s track was a little rough all along the line, and that every day some part of the track would have to be raised, the error, if any, in admitting on cross-examination testimony that the track was not ballasted and was rough in some places was harmless; the cross-examination being covered by the direct.
    LEd. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <@=31050.]
    8. Witnesses <&wkey;269 — Examination—Cross-Examination.
    Where a servant of a railroad was injured in starting a gasoline motor car by pushing it until the engine started, and the defendant railroad introduced evidence as to the character of the car on the issue whether it had used due care in providing a reasonably safe instrumentality with which to work, it was not error to admit on cross-examination the testimony of the witness that the motor could have been equipped with a self-starter at a certain cost, although no pleading authorized the testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. <&wkey;>269.]
    9. Appeal and Error <&wkey;758i — ScoPE of Review — Preservation of Exceptions — Brief.
    Where the brief on appeal does not show whether objections were interposed to the charges of the court complained of before or after submission to the jury, the assignments of error thereon must be treated as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. &wkey;75&]
    10. Master and Servant <&wkey;286 — Injuries to Servant — Liability of Master.
    It is the duty of the employer to furnish a reasonably safe implement for the work required, so that where a servant was injured by falling from a gasoline car which he attempted to start by pushing it, whether it was the duty of the company to furnish a car with a starting apparatus was a question for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <&wkey;>286.]
    11. Trial <&wkey;260 — Instructions — Sufficiency.
    It is not error to refuse a requested instruction already substantially covered by the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <&wkey;>260.]
    12. Master and Servant &wkey;>278 — Injuries to Servant — Liability of Master — Evidence.
    Evidence in a railroad servant’s action for injuries held sufficient to sustain a verdict for the plaintiff.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]
    13. Master and Servant <&wkey;280 — Injuries to Servant — Liability of Master^-Evidence — Assumption of Risk.
    Evidence in a railroad servant’s action for injuries by falling from a gásoline motor car which he had attempted to start by pushing it held insufficient to show that he assumed the risk in attempting to board the moving car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. <&wkey;> 280.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by Flaviano Cosio against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      C. E. Gustavus, of Amarillo, and N. H. Lassiter, of Ft. Worth, for appellant. L. 0. Barrett and Jas. N. Browning, both of Amarillo, for appellee.
   HUFF, 0. J.

The appellee, Flaviano Cosio, brought this suit against the appellant railway company for damages for alleged personal injury. He alleges that the appellant railway company is a railroad corporation carrying passengers and freight for profit and hire over its line of road, which runs from Amarillo, Potter county, Tex., through Old-ham county, Tex., to Tucumcari, N. M.; that the appellee was employed by appellant and engaged in building and repairing the defendant’s road at and near a place called Vega, in Oldham county, and that appellant had motor cars for the purpose of carrying tools and material for repairing its road, which was required to be propelled along the road by the servants of appellant, and in propelling said ear, and in carrying the tools and material, the appellee was engaged as the servant of appellant in such work at the time of his injury, and that, while so engaged, he attempted to mount the ear, and was thrown therefrom and injured in the manner set out. The negligence alleged is that he was required to start the car by hand by pushing it for some distance until the motor by which the car was propelled was started, and that he was required to mount the car while in motion, and that he was so required by the direction of the foreman; that it at that time was loaded with certain tools, the handles of which were round, etc., and in getting on the car the tools turned so that his foot slipped and he fell. He also alleges that the track at that point was rough and uneven, and that the car struck a rough place and bounced as he stepped on the car, which contributed to the fall, and he also alleges that the appellant failed to warn him of the danger in getting on the car while in motion; that he was ignorant of the danger at the time and was wholly unacquainted with such work; that he was a Mexican, and not acquainted with the English language, and had had no experience in such matters; that all of said acts were negligence on the part of appellant and proximately caused his injury.

It will not be necessary at this time to set out the answer of the appellant. The case was tried to a jury on special issues, and upon their findings a judgment was rendered for appellee for $750.

Under the first assignment, the contention is made that defendant’s plea in abatement should have been sustained or L. C. Barrett should have been made a party. The plea in abatement set up that prior to the filing of the suit appellee conveyed to L. C. Barrett an undivided one-half interest in the cause of action, and that Barrett is therefore a necessary party plaintiff, and that the cause should be abated, unless Barrett was made a party plaintiff. The appellee filed a pauper’s oath, and it was admitted on the trial below that Barrett was able to pay and secure the costs. L. C. Barrett, as attorney for appellee, filed this suit against appellant in the name of appellee for the damages alleged, and the record shows Barrett represented appellee as his attorney in the trial court, and that he is representing appellee in this court in such capacity. The bills of exception taken on this plea show that the original petition was filed August 21, 1914; that the transfer set up by the plea was filed with the papers of the cause on the above date. The transfer recites that appellee, on the date thereof, August 17, 1914, employed L. O. Barrett to represent him and to sue appellant for the injury negligently inflicted on appellee, and to compensate Barrett for his services in such suit he assigned and transferred one-half interest in the cause of action, as well as all moneys realized by compromise or otherwise; that it was understood that all proceedings in court or out of court should be carried on in the name of appellee. The appellee empowered Barrett to bring the suit and prosecute it to final determination, collect all moneys arising therefrom, to compromise, and sign all papers and receipts for all moneys, and, when collected, to pay over one-half to appellee. Appellee was to stand for all costs or make necessary arrangements by affidavit, if required therefor. This transfer or power of attorney was duly acknowledged. It is apparent from the record that Barrett objected to being made a party plaintiff. The trial court refused to abate the suit or require Barrett to be made a party plaintiff. While the contract was made before suit was filed, the clear import thereof was an assignment of an interest in the funds to be collected in the future, and was contingent upon such collection. Railway Co. v. Ginther, 96 Tex. 295, 72 S. W. 166; Railway Co. v. Vaughn, 16 Tex. Civ. App. 403, 40 S. W. 1065; Railway Co. v. Wood, 152 S. W. 487.

It has been held that an attorney with a contingent interest in the subject-matter of a suit is not such as will make him a party to the suit requiring of him a bond for costs or to secure same. Railway Co. v. Scott, 28 S. W. 457. It has also been held by the Supreme Court that where an attorney had a contingent interest in the suit, who was the brother of the judge trying the case, the trial judge was not thereby disqualified, although such interest existed in the brother. Winston v. Masterson, 87 Tex. 200, 27 S. W. 768; Railway Co. v. Reeves, 35 Tex. Civ. App. 162, 79 S. W. 1099. Appellant cites the case of Hughes v. Mendoza, 156 S. W. 329. In that case it is held a one-third interest was transferred in the claim sued on, and that the attorneys could be made parties, and that the plea in abatement was properly presented. The court therein says:

“Undoubtedly the transfer in this case to Patterson & Wallace constituted them joint owners with plaintiff of the cause of action herein sued upon, rather than the owners of a contingent interest in a possible future recovery.”

It was held, however, in that case, as the attorney represented the plaintiff therein, they would be bound by the judgment therein rendered, and that the action of the court in ovérrultng the plea in abatement was harmless, citing Bonner v. Green, 6 Tex. Civ. App. 96, 24 S. W. 835. We think the contract in this case, when considered in its entirety, evidenced the fact that Barrett had only a contingent interest in the future possible recovery, and that it is by its terms in the class with the contract mentioned in the case of Railway Company v. Ginther, supra. It was held in Wickizer v. Williams, 173 S. W. 288, where the plaintiff conveyed part of the land to the attorneys prosecuting the suit, that it was not error to refuse to make the attorneys parties to the suit over their objection, citing Bonner v. Green, supra. We think there was no error on the part of the trial court in refusing to make Barrett a party, but if there was error it was harmless for the reason under the showing, in this record Barrett would be hound by the judgment rendered.

The second assignment complains at the action of the trial court in overruling the first special exception to appellee’s petition, to the effect that appellee did not show whether he was suing under the state or federal law, and that appellant is not informed by the petition under what law appellee is claiming. The petition alleges that appellant operated a line of railroad from Amarillo, Tex., to Tucumcari, N. M., and through Oldham county, Tex., appellee’s place of residence, and that the injury of which complaint is made was received by appellee while he was employed in repairing appellant’s roadbed and track so used, and that it was his duty, as one of the employes of appellant, to operate a certain car along the line of road for the purpose of carrying appellant’s servants, together with their tools and the material for repairing the road in which appellee was then employed as a servant of the appellant, and that he was injured while thus employed.

The appellant answered that it was engaged in interstate and intrastate commerce, and that the appellee was employed to assist in repairing and maintaining its roadbed and track when injured, and that, if he had any cause of action, it was under the federal Employers’ Liability Act of the United States, and not of the state of Texas. The appellant in this case cites us to Thornton’s Employers’ Liability .and Safety Appliance Acts, pp. 32 and 33. The author in the note suggests that, if the pleadings do not show the plaintiff was employed in interstate commerce, when the evidence developed the fact that he was, this would constitute a fatal variance, and, if the defendant by answer should set up the plaintiff was so employed, and this was proven, this would defeat a recovery, etc. The Supreme Court of the United States held:

“It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress, but the court was presumed to be cognizant of the enactment of the Employers’ Liability Act, and to know that, with respect to .the responsibility of interstate carriers by railroad to their employes injured in such commerce after its enactment, it had the effect of superseding state laws upon the subject. Second Employers’ Liability Cases; Mondou v. N. Y., N. H. & H. R. Co. [223 U. S. 1] 32 Sup. Ct. 169 [56 L. Ed. 327, 38 L. R. A. (N. S.) 44]. Therefore the pleader was not required to refer to the federal act, and the reference actually made to the Kansas statute no more vitiated the pleading than a reference to any other repealed statute would have done.” Railway Co. v. Wulf, 226 U. S. 570, 575, 33 Sup. Ct. 135, 137, 57 L. Ed. 355, Ann. Cas. 1914B, 134.

Chief Justice White of the Supreme Court, in the case of Grand Trunk, etc., v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168, said:

“It is true that to avoid the irresistible consequences arising from this situation it is insisted in argument that as no express claim was made under the Employers’ Liability Act, therefore there was no right in the plaintiff to avail of the benefits of its provisions, or in the court to apply them to the case before it. But this simply amounts to saying that the Employers’ Act may not be applied to a situation which is within its provision, unless in express terms the provision of the act be formally invoked. Aside from this manifest unsoundness, considered as an original proposition, the contention is not open, as it was expressly foreclosed in Seaboard Air Line R. Co. v. Duvall [225 U. S. 477], 32 Sup. Ct. 790 [56 L. Ed. 1171].”

Under the statute of this state in force at the time this case was pleaded, the allegations that appellant was engaged in interstate commerce and that appellee was working on its line in furtherance of such commerce will be taken as true, if not denied, which was not done in this case. Again, it is a familiar rule in this state that an omission in the pleadings will be cured by the allegation in the adversary pleading of the omitted matter. It was held in Railway Company v. White, 238 U. S. 507, 35 Sup. Ct. 865, 868, 59 L. Ed. 1433, that the admission in the replication that White was employed in interstate commerce cured the defect in the declaration. This holding was made in deference to the holding of the state court, which in matters of practice and pleading was binding on the Supreme Court. This court, in the case of Railway Co. v. Stalcup, 167 S. W. 279, held substantially that, when the petition showed the employs, when killed, was employed in interstate commerce, the allegation was sufficient to designate the statute controlling; A writ of error was refused in that case by, the Supreme Court of this state, as well as by the Supreme Court of the United States. We also held that, when there was a shipment of cattle, shown by tbe pleadings to be from Texas to Kansas, on a through bill of lading, the Carmack Amendment would apply, even though the case was apparently tried in the court below under the state statutes. Railway Co. v. Word, 159 S. W. 375; Railway Co. v. Meyer, 155 S. W. 309. Writs of error were denied in these last two cases by both the higher courts.

In this case the petition shows that appellant was a carrier railroad operating a line of road from Texas into New Mexico, and that appellee was injured while employed in maintaining this line of road in repair. The appellant alleges that it was so operating the road as an interstate commerce carrier, and admits appellee was so at work. It is not required, we do not think, when the facts are stated which themselves indicate under, which statute the case should be tried, to specifically allege under which statute the court should try it. The federal statute is supreme, when the facts are presented which bring the case within the statute, and the court must try the case under the law. To require an employé to hazard his rights by requiring him in every case to allege that his case is under the state or the federal statute, under the penalty of losing if he fails to name the proper statute, would, in our judgment, be placing a burden on him which ought, not to be imposed. When he alleges the kind of employment in which he was engaged and where employed, it occurs to us he has gone far enough. The allegation that a line of road runs from one state into another is prima facie, we think, an allegation that the road was engaged in interstate transportation. The fact that he was employed in repairing that line of road when injured, as a section hand thereon, will be sufficient to show such injury “while” employed in interstate commerce, if the law attached to such labor the character of interstate commerce.

It is on the facts established a question for the court to determine whether his injuries were received while employed in interstate or intrastate commerce, and it will also be a question for the courts to determine which statute shall control.

Two things must appear before the federal statute is paramount: First, that the railroad was engaged at the time in interstate transportation; and, second, that, the employé was injured while employed in interstate commerce. Thus a yardmaster, who at the time of his injury was handling cars for intrastate shipment, would recover, if at all, under the state statute; but if while handling cars for interstate transportation, the federal statute will control. Railway Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Railway Co. v. Rosenbloom (Sup.) 177 S. W. 952. A carpenter repairing a bridge over which state and interstate shipments pass on a line of railroad, while carrying bolts with which to repair the bridge thereon, was injured on the track by a passing train. He was held by the Supreme Court to have been injured while employed in interstate commerce. Pedersen v. Railway, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. The holding in the case last cited rests apparently on the fact that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and legal contemplation a part of it. Practically the average employé would not know whether there were commodities in the car for out of state transit. This knowledge rests largely with the railroad; it alone in many instances knows the character of the freight. We believe the just rule to be, when the facts at the trial show the character of the commerce, the court should apply the law governing the case as made. The employé ought not to be required to allege that which is in the knowledge of the road. The time, place, circumstances, and the employment at which the servant is at work when injured will be sufficient to notify the road of the character of commerce in which the servant was employed. This assignment will be overruled.

The third assignment is to the action of the court in permitting the question to be asked, and the answer of the witness Gruhlkey to the effect that the railroad track from Amarillo to the state line was not first-class road; that it was not ballasted, and in some places rough. The witness was introduced by appellant, and on direct examination had stated that the road had no track rough enough that a man would be in danger of losing a handhold on the car, and testified generally as to whether there were high or low places. The allegation was that in boarding the car appellee was thrown by reason of a rough place in the road. 1-Ie also testified he observed a high point where he fell. The testimony objected to was elicited by appellee upon cross-examination. Under the circumstances of this case we think it was proper cross-examination (Railway Co. v. Porter, 156 S. W. 267) ; and under the issues it was material, and made so by the pleadings and other evidence.

Without objection the witness stated the track was a little rough all along the way from Amarillo to the state line, and that every day some part of the track would have to be raised. This testimony was substantially the same as that objected to. This will render the testimony objected to harmless.

The fourth assignment is to the action of the court in permitting the witness Gruhl-•key, on cross-examination, to state that the motor could have been equipped with a self-starter, and that its cost would have been about tbe price of tlie motor. The objection was there was no pleading authorizing such testimony, and that it was theorizing and speculating, and, as to the cost, it was immaterial to any issue in the case. The appellant introduced this witness, and on direct examination went into a detailed history and description of the various hand cars used by appellant and for the make of the motor in question, its construction, and how it started, etc. We think the issues of this case are whether the car, as then used by appellant, by pushing it to start, under such circumstances, was a reasonably safe instrumentality, and whether there was negligence in so using it; and from the fact that this appears under the circumstances to have been a legitimate cross-examination of the witness, we believe there was no such error shown by the testimony as would require a reversal.

The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments of error will be regarded as waived, for the reason that the statements under the assignments in appellant’s brief do not show when the charges given by the court and here conqplained of were objected to, whether before or after the case was submitted to the jury. The objections made to the charges are not shown in the brief, or when called to the attention of the trial court. Appellant does not set out the bill of exceptions to the charge in its statement, but only refers to the record for such bill. Railway Co. v. Culver, 168 S. W. 514; Insurance Co. v. Rhoderick, 164 S. W. 1067.

The fourteenth assignment: We believe the court properly refused the charge requested set up under this assignment. The charge sought to have the court instruct the jury that there was no duty to furnish the car with an apparatus for starting it without the necessity of pushing it before starting. It was the duty on the part of appellant to furnish a reasonably safe implement for the work required, and whether the appellant used ordinary care in doing so was a question for the jury under the facts of the ease. Ordinary care may have required such a motor, under the facts of this case, or the pushing of the car in question may have been a reasonably safe instrumentality, and in furnishing it the appellant may have used ordinary care. As a rule, it should be left to the jury to determine whether the employer did all ordinary care required. Railway Co. v. Welsheimer, 170 S. W. 263, 266.

The fifteenth assignment is overruled. This is simply a requested instruction that appellee assume all the risk ordinarily incident to the work and such as would arise in the use of the car in question. The court, in the last paragraph of his charge, gave the proper instruction on this subject, and in so far as the requested charge was the law the instruction of the court covered it.

The sixteenth and seventeenth assignments are overruled, for the reason' that the issues here requested were substantially submitted by the court in issue No. 22.

The eighteenth assignment is' overruled. We think the court properly refused to submit the issue whether appellant was engaged in interstate commerce. This is a question of law from proven facts. The fact that appellant transported freight (state and interstate over its line of road) was not a controverted fact. Both parties hereto substantially alleged it was so engaged. The allegation of appellant to that effect was not denied.

Assignments 19 to 25, inclusive, assail the answers of the jury to the issues submitted, to the effect that appellant was guilty of negligence in the particulars alleged, and answering that appellee did not assume the risk. There are facts from which the jury could find that the instrumentality used was not reasonably safe, that is, that the car was not safe to board while in motion, and that appellee was working under the direction of the foreman, who required the car to be put in motion before boarding it, and that the motor could have been started by a crank without requiring the appellee to push the car by hand in order to start the motor before attempting to get on the same while in motion; that the track was rough, uneven, and in bad condition, and liable to cause the car to jump and to ride rough; that the appellee was inexperienced in the use of such an instrumentality, and knew nothing or but little of its use, and was not warned by appellant of the danger. We believe that, all these matters' concurring in the injury of the appellee, the jury had some evidence to show that appellant was negligent therein, and that such negligence proximately caused appellant’s injury.

The jury found that appellee was guilty of. contributory negligence and gave the per cent, that his negligence bore to that of appellants, and judgment was rendered accordingly. We do not think we should, as a matter of law, hold the facts conclusively established that the appellee assumed the risk. Under the facts we cannot say that appellee knew of the danger from the negligence of the appellant, or that he must necessarily have known of such danger, and that he would have known that the manner of doing the work was not a reasonably safe one, especially when his foreman was present directing the work. Bonnett v. Railway, 89 Tex. 72, 33 S. W. 334; Railway Co. v. Scott, 160 S. W. 432; Bennett v. Railway, 159 S. W. 132.

We have concluded the judgment of the trial court should be affirmed.

Affirmed.
      <i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J. HAWKINS, J.

text:
    BAKER v. CROSBYTON SOUTHPLAINS R. CO.
    (No. 2433.)
    (Supreme Court of Texas.
    Jan. 26, 1916.)
    COURTS i&wkey;4S0 — Jurisdiction — Injunction Against Execution — Statutes.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, providing that injunction' to stay execution on a judgment shall be returnable to and tried in the court where such judgment was rendered, the district court is without jurisdiction to try the issues in a suit to enjoin execution on a judgment of the county court; it not affirmatively appearing that the judgment is void or that the property attempted to be levied on is exempt.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by the Crosbyton Southplains Railroad Company against J. A. Baker for injunction. Judgment for plaintiff was affirmed by the Court of Civil Appeals (146 S. W. 569), and defendant brings error.
    Reversed and rendered.
    R. A. Sowder, of Lubbock, and Cooper, Merrill & Lumpkin, of Houston, for plaintiff in error. W. D. Benson, of Lubbock, for defendant in error.
   YANTIS, J.

J. A. Baber, the plaintiff in error, secured a judgment in the county court of Lubbock county, against the Crosby-ton Southplains Railroad Company, defendant in error herein. A portion of the judgment was paid. Baker baused to be issued an execution out of said county court in his favor, and was threatening to levy it upon the property of the said Crosbyton South-plains Railroad Company, defendant in error. The latter’applied to the district court of Lubbock county for a temporary injunction to restrain the levy of said execution from the county court. The injunction was granted by and made returnable to the district court, and an order entered restraining the officers from levying said execution. From this order an appeal was prosecuted to the Honorable Court of Civil Appeals for the Seventh District By said court the judgment of the district court, which granted said restraining order, was affirmed. A writ of error was granted by this court upon the question, which is controlling in the case, as to the jurisdiction of the district court to hear and determine the controversy as to the merits of the injunction.

The litigation arose in this way: The Crosbyton Southplains Railroad Company, defendant in error, brought a condemnation suit against J. A. Baker, who is the plaintiff in error in this suit, in the county court of Lubbock county, to condemn part of lots 6, 7, 8, 9, 10, 11, and 12 in block 33 of the Over-ton addition to the town of Lubbock, in Lubbock county, Tex. for right of way purposes. The judgment of the county court was, in effect, that the lots were condemned for right of way purposes as prayed for, and J. A. Baker was given a judgment against the said railroad company in the sum of $1,750 as damages. The judgment also provided that the sum of $973.60 should be retained in the registry of the county court to pay and satisfy a vendor’s lien note owed by J. A. Baker to E. P. Watts. The railroad company paid to J. A. Baker upon said judgment the sum of $654.52, but did not deposit in the registry of the court the amount called for as a deposit by said judgment to pay the said note held by E. P. Watts. At the time the judgment was rendered in the county court, the Watts note had been placed in the hands of an attorney for collection, and attorney’s fees were due thereon, but for some reason were not taken into account in rendering the county court judgment. Watts was not a party to the suit in the county court. In due time he filed a suit in said district court on said vendor’s lien note againist J. A. Baker, the plaintiff in error, to recover the amount of said note, interest, and attorney’s fees, tie also prayed for a foreclosure of his lien. The Crosbyton Southplains Railroad Company was made a party defendant in said suit by Baker. In this state of the litigation, Baker caused the execution to issue out of the county court on the judgment which had been rendered in his favor therein. The injunction sued out in the district court by said railroad company was to restrain the levy of this execution. There was no allegation by the railroad company in its application for injunction charging that the judgment of the county court was void, or that the property about to be levied upon was for any legal reason not subject to levy and sale under the execution. The only charge is that the judgment is not large enough in amount to satisfy the attorney’s fees on the said Watts note, of which no account was taken in the trial in the county court, and that the execution is about to be levied upon the rolling stock of the railroad company.

We think the Court of Civil Appeals erred in affirming the judgment of the district court. The latter court was without jurisdiction to try the issues involved in the injunction suit. It had jurisdiction to issue the writ of injunction, but its duty was to make it returnable to the county court in which the judgment was rendered. Article 4053, Vernon’s Sayles’ Texas Civil Statutes 1914, provides that:

“Writs of injunction granted to stay proceedings in a suit, or execution on a judg’ment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered. * * * ”

This statute commanded that, when the district court issued its writ of injunction, it should make it returnable to the county court where the judgment which was under attack by it bad been rendered. By implication it deprived tbe district court of jurisdiction to do more, except in cases where the judgment of the county court is void upon its face, or where it appears affirmatively from the record that such judgment is void, or that the property attempted to be levied upon is exempt from such levy, or is owned by persons not parties to the judgment Cotton v. Rea, 106 Tex. 220, 163 S. W. 2; Moore v. Vogt, 127 S. W. 234; Lincoln v. Anderson, 51 S. W. 278; Wheeler v. Powell, 114 S. W. 689; Bell v. York, 43 S. W. 68; and Texas & Pacific Railway Co. v. Butler, 52 Tex. Civ. App. 327, 135 S. W. 1064. If the rule were otherwise, it would result in conflicts of judgments in trial courts, and in interminable confusion. The remedy for an erroneous judgment is by direct appeal, and not by application to another trial court for restraiht of the judgment by injunction.

This holding is not in conflict with the cases of Leachman v. Capps & Canty, 89 Tex. 690, 36 S. W. 250, and Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578, where in each case the proceeding was to protect the homestead which was exempt from forced sale. In such cases the parties do not sue to enjoin the execution of the judgment in the sense of seeking to impair or destroy the judgment, but only sue to prevent the levy upon and sale of the property belonging to them, because such property in no event could be subject to sale under any execution, however valid the judgment upon which it issued might be.

The district court being without jurisdiction to hear and determine the merits of the injunction, it follows that the judgment of the Court of Civil Appeals, which affirmed the judgment of the trial court, should be reversed. The petition for writ of injunction presents no valid ground for a stay of execution, and the judgment of the district court should be here reversed and rendered in favor of the plaintiff in error, and it is, accordingly, so ordered.

HAWKINS, J.

I concur in the result, and also in the reasoning upon which it is rested, including the application made of article 4653; but I do not think this case calls for a decision as to whether said statute does or does not apply where the judgment under which the execution issued is void, etc., and upon that point I express no opinion.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. DICKENS.
    (No. 2768.)
    (Supreme Court of Texas.
    Jan. 26, 1916.)
    1. Appeal axd Error <&wkey;811 — Advancement op Case — Grounds—Conpession of Error.
    A confession of error after the granting of a writ of error does not justify the advancement and healing of the case in the Supreme Court out of its regular order upon the docket, since, as it is the duty of the court to determine all questions correctly, a confession of error cannot facilitate a decision of the case, the only ground for advancement on the docket.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Hig. §§ 3191-3194; Dee. Dig. <&wkey;> 811.]
    2. Appeal and Error &wkey;>811 — Advancement of Cause on Docket — Vacation—Grounds.
    Where, after defendant in error confessed error in the charge to secure an advancement of the case on the docket, he filed, in good faith and with the sanction of the court, a written argument citing authorities in support of the charge merely to afford the court the benefit of the authorities discussed, the action was not sufficient basis for granting of plaintiff in error’s motion to vacate the advanced submission of the case, as such action was not inconsistent with the confession of error.
    [Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. §§ 3191-3194; Dec. Dig. &wkey;» 811.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by C. W. Dickens against the Galveston, Harrisburg & San Antonio Railway Company. To review a judgment for plaintiff, defendant brought error, and plaintiff filed motion to advance submission of the case, which was granted.
    Submission of the case vacated oh further consideration, and the order advancing it set aside. ,
    See, also, 170 S. W. 835.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ggden 'and Ed W. Smith, all of San Antonio, for plaintiff in error. C. G. Harris and M. J. Arnold, both of San Antonio, for defendant in error.
   PHILLIPS, C. J.

A writ of error was granted in this case because of probable error in the trial court’s charge to the jury. After the granting of the writ, the defendant in error filed a motion to advance the submission of the case, confessing error in the particular indicated in our allowance of the writ, and making such confession the basis of the motion. Our view at the time was that this probably warranted the advancement of the case. The motion was accordingly granted, and the case was recently submitted on an advanced hearing.

We are convinced, however, upon further consideration, that a confession of error after the granting of a writ of error does not justify the advancement and hearing of the case in this court out of its regular order upon the docket. It could be regarded, we think, as a sufficient ground for such action only upon the theory that by the acknowledgment of error the decision of the case by the court would be facilitated, and therefore ought not to be postponed for a hearing in ordinary course. But a confession of error does not accomplish such result. It is the duty of the court to determine all questions correctly, notwithstanding confession of error by the parties; and we would disregard such confession, entirely, if of the opinion on the final consideration of the case that the particular question had been correctly determined in the Court of Civil Appeals. While a writ of error is granted only when it is deemed that it should issue, it does not conclude the question of error, as is well understood. The confession of error cannot bind the court, and it does not bind the party making it. It is therefore of no practical value or effect in our decision of the case. For these reasons it does not entitle the case to any advantage in the hearing over other causes pending.

After the confession of error was filed, the defendant in error’s counsel, with the permission of the court, filed a written argument, with authorities cited, in support of the correctness of the charge. This has been made the basis of a motion by the plaintiff in error to vacate the advanced submission of the case. The argument in question was filed by counsel in good faith, and with the sanction of the court. It sufficiently appears that its only purpose was to afford the court the benefit of the authorities it discusses. Under these circumstances, we have not regarded it as inconsistent with the confession of error, and have therefore overruled the motion of the plaintiff in error to vacate the submission, because unwilling to sustain it upon the ground urged.

Of our own motion it is ordered that the submission of the case be vacated and the order advancing it be set aside, believing, for the reasons we have indicated, that the motion to advance ought not to have been granted. The case will stand for submission in its regular order upon the docket
      <§u=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    MELTON v. STATE.
    (No. 3895.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Ctsiminal Law <&wkey;594 — Continuance— Absence oe Witness.
    Diligence being conceded, it was a sufficient showing for continuance that the only person, other than defendant, relying on self-defense under apparent danger, who was present the night before the homicide when deceased was alleged to have made threats, was absent sick.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1322, 1332; Dec. Dig. <&wkey;>594.]
    2. Criminal Law <&wkey;448 — Evidence—Opinion— Character oe Deceased — Statutes.
    Under Pen. Code T911, art. 1143, providing that when proof of threats by deceased against defendant in homicide, seeking to justify himself on the ground thereof, has been shown, it shall be competent to introduce evidence of whether he was such a person as might reasonably be expected to execute a threat made, a witness may state whether or 'not deceased was such a man, against objection of its being his opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051'; Dec. Dig. &wkey;448.]
    3. Affidavits <&wkey;2 — Persons Competent to Take.
    The affidavit introduced by the state should not be considered, the oath thereto being taken by counsel for the state.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 5-15; Dec. Dig. &wkey;2.]
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Anderson Melton was convicted, and appeals.
    Reversed and remanded.
    H. H. Edwards, O. M. Wroe, and James Macintosh, all of Fairfield, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder and given 15 years in the penitentiary.

He filed a second application for continuance, partly written and partly oral; the oral part being by agreement. The state concedes diligence. It is alleged, among other things, this was the only witness by whom he could prove the fact that on the day before the homicide the deceased had threatened the life of appellant The absent witness was sick and confined and in bed with consumption. The court overruled the application, and motion was then made for postponement long enough to take the depositions of the witness, who lived about 13 miles from town. The court ordered the case to trial, with permission to get the depositions if he could by 1 o’clock the following day. This was impossible, and the case proceeded, resulting in a conviction of appellant for murder. . The application for a' continuance should have been granted. The absent witness was the only witness who knew of the threats, she being the only one present at the time the threats were made, except the defendant. Defendant, in the light of application for continuance, is not to be regarded as a. witness. 1-Ie does not have to take the stand unless he prefers to do so. It is a matter entirely discretionary with him. Under such circumstances, the application does not treat the accused as a witness. If another witness had been present and knew of these facts, appellant would be required to exhaust all of his resources in the introduction of testimony; but the witness was absent, and appellant was his only witness in regard to these matters. An affidavit of the absent witness was taken by the state in answer to appellant’s motion for a new trial. In some respects it was not in conformity with, but rather contradictory to, the application for continuance, but not so as to the threats made the previous evening. In that respect it was in accordance with appellant’s statements in his application for continuance. This was a very important matter for appellant on his theory of self-defense, as he relied upon apparent danger. The question of actual danger was not in the case. We are of opinion that this was such a showing for a continuance as should have been granted.

Another question growing out of the introduction of evidence of threats is suggested for reversal. Defendant testified to threats made by deceased and what he thought was apparent danger at the time that fce fired the shot that killed the deceased. It is unnecessary to go into a detailed statement of all those matters. The question of apparent danger was clearly suggested by the evidence.

In this attitude of the case, appellant proposed to prove that deceased was a man of dangerous character among his race, he and defendant being negroes, but was not so regarded as to white men. These matters having been proved, appellant then offered to show that deceased was a man of such character and reputation that he would likely execute any threat he had made to kill or inflict serious bodily injury. The court excluded this testimony upon the theory that it was but an opinion of the witness, and that the jury was as well qualified to pass on this matter as was the witness. We do not understand the law to be as found by the court. The statute provides that, where threats are shown to take life or inflict serious bodily injury, the deceased’s reputation as being a man who was likely to execute his threats, or otherwise, becomes a legitimate subject of investigation. The court erred in this matter. This character of testimony has always been held to be legitimate and proper. If the character of the deceased is such that he would likely execute a threat he had made, it becomes legitimate for the accused to show this by legitimate testimony, and, on the other hand, the state may prove good character of the deceased upon the theory that, while he may have made the threats, still he was of that character and standing that would not render it probable that he would execute the threats. However, these matters are provided by statute, and the defendant was entitled to have the witness state to the jury whether or not deceased was a man who would likely execute a threat when he made it. For this reason the judgment should be reversed.

The state met the defendant’s application for a new trial with the afBdavit of the absent witness mentioned in the application for continuance. In part, this affidavit would contradict the motion for continuance, but would sustain it with reference to the threat made the day prior to the homicide. This was entertained by the court, and evidently considered in making up his judgment overruling the motion for a new trial. The affidavit shows to have been taken before counsel for the state. This counsel swears the witness who made the affidavit. Under the authorities found in our reports, this affidavit should not have been considered, and the court was in error in considering it under the circumstances.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      <S&wkey;Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W. — 19