text:
    SANTA FE TIE & LUMBER PRESERVING CO v. COLLINS.
    (No. 5882.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Master and Servant <®=>258(17) — Injuries to Servant — Petition — Master’s Knowledge,.
    In a servant’s action for injuries when a sledge hammer he was using flew off the handle, the petition, though not expressly charging that defendant employer knew of the condition of the hammer, or that it could have known thereof by the exercise of ordinary care, was not subject to general demurrer, where it charged that the hammers were made by the head smith, and that defendant employer had the handles placed in the hammers for plaintiff to use in striking for another.
    2. Master and Servant <§=»124(3) — Master’s Duty to Inspect Tools — Sledge Hammer —“Simple Tool.”
    A sledge hammer made by the employer’s head smith, its handle being placed for use of a servant who had never used a sledge before equipped with a defective handle, was not a simple tool which an employer need not inspect.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Simple Tool.]
    3. Appeal and Error! <@=o742(2) — Assignments op h&ROR — Urging Distinct Grounds — Effect.
    Where several distinct grounds are urged in an assignment of error, it cannot he treated as a proposition.
    4. Master and Servant <@=>286(4) — Injuries to Servant — Negligence of Employer in Furnishing Tool — Question for Jury.
    In a servant’s action for injuries when the sledge hammer he was using flew off the handle, issue whether the employer was negligent in furnishing plaintiff with the hammer held for the jury.
    5. Master and Servant <§=5279(5) — Injuries to Servant — Head Blacksmith as Personal Representative of Employer — Sufficiency of Evidence.
    Evidence held to support a finding that the head blacksmith was the personal representative of the employer, charged with the nondele-gable duty to see that the tools were in safe condition.

      6. Master and Servant <&wkey;190(9) — Duty to See Tools are Saee — Delegation by Employer.
    Tlie head blacksmith’s neglect to see that the sledge he was furnishing his helper was safe will be imputed to the employer; the head blacksmith being the latter’s personal representative, charged with the nondelegable duty ■to see that tools are safe.
    7. Appeal and Error &wkey;>1033(4, 8) — Error Favorable to Appellant^-Submission op Issue — Findings.
    Defendant cannot complain of error committed in submitting an issue, nor of the jury’s finding thereon favorable to plaintiff, where the issue was an infringement on plaintiff’s rights only.
    8. Appeal and Error <§=^231(9) — Reservation op Grounds op Review — Objections to Issue.
    Where the objections to an issue filed below were general, a specific objection, not included" therein, cannot be urged on appeal.'
    9. Appeal and Error <&wkey;213 — Reservation op Grounds op Review — Request por Issue Supplying Omission.
    Appellant cannot complain of an omission from an issue without having sought below to correct it by requesting the submission of a correct issue.
    10. Trial &wkey;>351(5) — Submission op Issues.
    In a servant’s action for injuries, where the
    court correctly submitted the issue whether plaintiff suffered any damages by reason of the sledge hammer coming off the handle, and instructed that no damages could be allowed for any prior injury or sickness, it properly refused to submit an issue inquiring whether the injuries suffered by plaintiff resulted from the hammer slipping off the handle, from prior disease, or from both.
    11. Trial <&wkey;351(5) — Submission of Issues.
    In a servant’s action for injuries, - defendant’s special issue asking the jury to find whether plaintiff was guilty of contributory negligence, accompanied by an incomplete instruction omitting the essential statement that the' facts stated, if found to exist, would show contributory negligence, was properly refused where the issue submitted by the court was in practically the same language.
    12. Damages <&wkey;134 (1) — Personal Injuries —Excessive Verdict.
    In an action for injuries to a helper in defendant’s blacksmith shop, when the sledge hammer he was using flew off the handle, causing him to wrench his back, in view of .plaintiff’s age and low earning capacity, verdict for $15,000 held excessive by $5,000.
    Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.
    'Suit by W. L. Collins against the Santa Fé Tie & Dumber Preserving Company. From a judgment for plaintiff, defendant appeals.
    Affirmed conditionally on entrance of a re-mittitur ; otherwise, reversed and cause remanded.
    Hunt, Myer & Teagle, of Houston, for appellant. U. S. Hearrell, of Cameron, and W. M. Hilliard, of Caldwell, for appellee.
   MOURSUND, J.

Appellee sued appellant to recover damages by reason of personal injuries alleged to have been sustained by Mm while in the employ of appellant as helper in its blacksmith shop, charging that his injuries resulted from a sledge hammer flying off the handle while he was striking with it, causing him to be jerked and twisted and his back wrenched, and that such injuries were brought about by negligence of deféndant in failing and refusing to exercise ordinary care to furnish him a reasonably safe hammer with which to perform the work he was required to do. He alleged that the handle of the hammer was defective in that it was too sharp and pointed at the end where it extended through the hammer, and not properly wedged. It was pleaded and admitted that defendant, at the time plaintiff alleged he was injured, had in its employment more than five men, and that it was not a subscriber to the Texas Employers’ Insurance Association as provided in chapter 179, Acts of Thirty-Third Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and plaintiff pleaded that defendant did not come within any of the exceptions mentioned in said act, and that it was therefore precluded from settirig up a defense based on assumed risk or, negligence, or that the injury was caused by the act of a fellow servant.

Defendant answered by general and special exceptions, general denial, and a special plea to the effect that if the handle of the hammer was defective the fault was plaintiff’s; that it was one of his duties to look after the hammers he was using and see that they were kept in proper condition. It further alleged ■ that if the hammer was defective as charged plaintiff was guilty of contributory negligence which proximately contributed to his injuries, in that he failed to, take proper care of his tools, and to make a proper inspection thereof, which it was Ms duty to do. It also charged that certain defects pleaded by plaintiff, if they existed, were open and apparent to the view of plaintiff, and known to plaintiff, and that he was guilty of negligence in using the same. Defendant also pleaded assumed risk.

The cause was submitted on special issues in answer to which the jury found that plaintiff was injured as alleged in his petition; that the handle of the hammer was sharp pointed at the end where it extended through the hammer, and not properly wedged; that •defendant was guilty of negligence in furnishing him with such a hammer to do the work required of him; that it was not the duty of plaintiff to keep in repair the hammer he used in defendant’s service; that the plaintiff did not know at the time he used the hammer that it was in a defective condition; that plaintiff was not guilty of contributory negligence in using the hammer; and that plaintiff suffered damages in the sum of $15,-000 by reason of his injuries. Judgment was entered for plaintiff for the amount stated in the verdict.

Appellant contends that its general demurrer should have been sustained for the reason that the petition does not expressly charge that the defendant knew of the condition of the hammer, or that it could have known thereof by the exercise of ordinary care. It has been held in somewhat similar cases that the demurrer should not be sustained on such ground. G., H. & S. A. Ry. v. Udalle, 91 S. W. 330; M., K. & T. Ry. v. Gilbert, 130 S. W. 1037. The petition in this case does not disclose that the hammer was delivered to plaintiff in good condition, and that it afterwards became defective, but charged directly that the hammers were made by the head smith, and that defendant had the handles placed in the hammers and prepared and placed there for plaintiff to use in striking for Wiegant.

Appellant further contends that the petition discloses that the tool was a simple one which plaintiff was daily using, and not such a tool as defendant was required "to inspect. The petition fails to disclose that plaintiff had ever used the hammer before, at least while equipped with the defective handle. The entire objection is inapplicable to the case pleaded by plaintiff, and in view of the opinion in the case of Drake v. Railway, 99 Tex. 240, 89 S. W. 407, it is clear that the court did not err in overruling such objection to" the petition.

The testimony complained of in the third assignment was properly admitted. Besides, substantially the same testimony had been given, without objection, by the same witness.

The action of the court, in submitting the issue whether defendant was guilty of negligence in furnishing plaintiff with the hammer to do the work required of him, is complained of in the fourth assignment; several distinct grounds being urged in the assignment, which cannot, therefore, be treated as a proposition. The only proposition submitted under the assignment is that:

“When the facts do not show that a tool was defective when furnished the servant, the master cannot be held liable on the theory that he furnished a defective tool.”

The salient facts deducible from the evidence are as follows: Plaintiff was employed as helper in the blacksmith shop of defendant, and worked under the direction and control of Wiegant, the head smith. Plaintiff’s contract of employment did not impose upon him the duty to inspect tools, but in compliance with Wiegant’s orders and method of conducting the work if plaintiff ascertained that a handle was defective or loose in a hammer, he replaced it or made the necessary repairs. Wiegant testified that he kept the tools in repair; that it was his duty to see that the tools were sharp and proper and correct for their purposes. The replacing of sledge hammer handles was a very frequent occurrence, and plaintiff had put new handles in all of defendant’s hammers during the course of Ms employment. After a four days’ absence plaintiff returned to work, and was ordered by Wiegant to drive a bushing on a tram car axle. This work was usually done by two men as the blows must be fast and hard to drive the bushing down 'while the metal is hot. On this occasion plaintiff did the work alone. When Wiegant called to Mm, he hastily seized a sledge hammer which was standing with the handle up, near the anvil block, and struck rapidly. While he was striking, the hammer slipped suddenly from the handle, causing plaintiff to wrench Ms back. Tbe evidence supports the finding of the jury as to the defect in the handle which caused the hammer to come off. The defect was not visible on account of the way the hammer was standing, and could not have been discovered except by inspection such as plaintiff had no time to make after being called on to do tbe work. The handle was not put in the hammer by plaintiff, and there is no evidence that it was in the hammer when plaintiff had used the same on previous occasions. The handle was put in by Wiegant or some one under Ms direction. It was admitted that defendant employed more than five men, and that it was not a subscriber to the Employers’ Liability Insurance Association.

In view of tbe facts above stated, we think it is clear that the submission of the issue was justified by tbe evidence. The evidence supports a finding that Wiegant was the personal representative of defendant, charged with-the nondelegable duty of seeing that the tools were in safe condition to carry on the work, and when he furnished plaintiff the hammer in question his neglect of the duty to see that it was safe will be imputed to defendant. The doctrine announced in the Larkin Case, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 944, relied upon by defendant, has no application to the facts of this case. The fourth assignment is overruled, and what we have said in discussing the first and fourth assignments disposes of the fifth and twelfth assignments adversely to appellant.

Appellant contends that the undisputed evidence shows it was the duty of plaintiff to keep the hammer used by him in repair, and that therefore the court should not have submitted special issue No. 6, and that the answer of the jury thereto is contrary to the great weight and preponderance of the testimony. There being no evidence that plaintiff ever had an opportunity to repair the defect in the hammer which caused Ms injuries, nor that the plaintiff had the exclusive control of such hammer, and was the only person authorized to repair the same, it appears to us that plaintiff should have objected to the issue, and not the defendant. The finding of the jury was doubtless prompted by tbe evidence that Wiegant was charged with the duty of seeing that all tools were kept in repair, and plaintiff only with the duty of repairing such as he observed defects in, or such as Wiegant ordered him to repair, and that having had no opportunity to observe any defect in the handle in question, and not being directed to repair same, no duty with reference thereto devolved upon him. If any error .was committed in submitting the issue defendant cannot complain thereof, nor of the finding of the jury. Assignments 6 and 13 are overruled.

Appellant attacks the eighth issue, wherein inquiry was made whether plaintiff knew the hammer was in a defective condition, and says the court should also have submitted the inquiry whether plaintiff could have known of the condition of the hammer by the exercise of ordinary care. The objections to said issue, filed below, were general, and did not include the specific objection now relied upon. In addition, appellant seeks to complain of an omission, without having sought to correct it by requesting the submission of an issue supplying the omission. Appellant assumes that plaintiff had used the hammer, equipped with the defective handle, previous to the occasion when he was injured, when there is no testimony to that effect. The seventh assignment is overruled; also the eighth, which undertakes to urge an additional objection to the eighth issue, not urged in the trial court.

The ninth assignment, which complains of the failure to give a peremptory instruction, in favor of defendant, is overruled, and our discussion of the fourth, fifth, and sixth assignments is referred to for the reasons impelling us to so rule.

The court did not err in refusing to submit an issue inquiring whether the in-' juries suffered by plaintiff resulted from the hammer slipping off the handle, or from prior disease, or from a combination of injuries re-suiting from prior disease and the wrench caused by the hammer flying off the handle. The court submitted the issue whether plaintiff suffered any damages by reason of the hammer coming off, and instructed the jury that no damages could be allowed for any prior injury or sickness. This was a correct submission of the issue, and nothing could have been gained by submitting the- defendant’s special issue.

The court did not err in refusing to submit defendant’s special issue No. 12. The form of the question was no improvement upon the one submitted by the court; in fact the language was practically the same. Appellant did not frame its question so as to call for a finding upon the facts relied upon to constitute contributory negligence, but asked the jury to find whether plaintiff was guilty of contributory negligence, and undertook by an accompanying instruction to tell the jury what facts would show such negligence. The instruction was incomplete, and omitted the essential statement that the facts therein stated, if found to exist, would show contributory negligence. The jury would not have been any better informed had defendant’s issue been submitted than they were in answering the court’s question. The assignment is therefore overruled.

In view of the age of plaintiff and his low earning capacity, the verdict is excessive. If a remittitur in the sum of $5,000 is entered within 15 days, the judgment will be affirmed for $10,000; otherwise the judgment will be reversed and the cause remanded.
      <SssFor other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes

      <&wkey;For other oases see same topic and KEY-NUMBER in al] Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    GARCIA v. UVEDA.
    (No. 5896.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct 24, 1917.)
    Homestead <§=>32 — Acquisition—Intention.
    Appellee traded goats purchased from appellant for lots. Appellant sued on a note given in part payment for the goats. Prior to suit appellee had the lots grubbed, and thereafter before judgment marked places for post holes. After execution post holes were dug and the lots fenced. Appellee testified that he intended to make the lots his homestead as soon as he had money for improvements. Appellee was a married man with family, and the lots were the only real estate he owned. Held, though intention to make land a homestead, accompanied with acts preparing it for occupancy, may impress it with that character, the lots involved were not exempt as appellee’s homestead; mere intention alone, unaccompanied by acts showing the land was set apart solely for homestead purposes, being insufficient to constitute a homestead dedication.
    Appeal from District Court, Duval County; V. W. Taylor, Judge.
    Action between Sixto Garcia and Ramon Uveda. Prom a judgment for the latter, the former appeals.
    Reversed and rendered.
    J. P. Clarkson, of San Diego, for appellant. S. H. Woods, of Alice, for appellee.
   FLY, C. J.

A permanent injunction was obtained in this case by appellee against the sale of three certain lots of land in San Diego, Duval county, under and by virtue of a writ of execution issued out of the district court of that county and levied on the said three lots. The sale was enjoined, on the ground that the lots constituted the homestead of appellee. Prom that judgment this appeal has been perfected.

The facts show that in 1914 appellee bought 1,000 goats from appellant, giving in exchange therefor his storehouse, which was his homestead, and merchandise and a promissory note for $1,200. A balance due on that note formed the basis of the judgment obtained by appellant against appellee, under which the execution was issued and levied on lots 10, 11, and 12 in San Diego, for which appellee had traded a portion of the goats. The proceedings under the judgment were regular in every respect. The lots were purchased by appellee on June 1, 1915, and the execution was levied upon them on July 3, 1916, more than a year after the purchase. The lots were of the value of $300. Appellee is a married man, as found by tbe trial court, with “at least three children." At some time prior to January, 1916, appellee “caused tbe lots to be grubbed,” paying for the labor the sum of $10.50. Nothing further was done about the lots until May, 1916, several months after the suit was instituted, when appellee made marks on the ground with a shovel or pickax, to indicate where he might at some time put post holes. After the execution had been levied upon the lots and the day of sale fixed, and five days after a temporary injunction had been issued restraining the sale of the lots, appellee began having post holes dug in order to erect a fence about the lots. The fence was built. Nothing whatever was done to the lots evidencing a desire to improve them, except the grubbing, which appellee swore was begun on June 14, 1915, before tbe property was seized under execution and the day of sale fixed. Appellee testified that he intended to make the lots his homestead as soon as he had the money to make improvements. He has no other real estate. No improvements had been put on tbe lots before tbe execution was levied, unless the grubbing was an improvement.

The courts of Texas have gone to the extent, in their desire to protect the homesteads of families, of dispensing with actual occupancy as a necessary concomitant to impress land with the homestead character, and extending such character to land when there has been shown an intention to make a homestead, accompanied with acts of preparing the land for actual occupancy. Mere intention at some future time to occupy a lot or parcel of laud for homestead purposes, such occupancy being contingent upon financial ability to build improvements, would not constitute a homestead. There must be an intent to occupy the land concurring with acts of improvement indicating such intent within a reasonable time to occupy. Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; Town Co. v. Grigg, 93 Tex. 456, 56 S. W. 49; Gallagher v. Keller, 4 Tex. Civ. App. 454, 23 S. W. 296; Johnson v. Burton, 39 Tex. Civ. App. 249, 87 S. W. 181; Parker v. Cook, 57 Tex. Civ. App. 234, 122 S. W. 419; Parsons v. McKinney, 133 S. W. 1085; Wiseman v. Watters, 142 S. W. 134; McDowell v. Northcross, 162 S. W. 16; Taylor Feed Pen Co. v. Bank, 181 S. W. 534, 535. The acts performed in connection with the unoccupied land claimed to be homestead are indicative, both of good faith, of the intent to occupy, and of a reasonable diligence to execute the intention. We think tbe doctrine of Texas courts is stated by Judge Hodges in the cited case of Parker v. Cook, as follows:

“We think the true rule deducible from, the adjudicated cases is, not that intention alone, under all circumstances, is insufficient to constitute a homestead dedication, but that in each instance the intention must not only he bona fide, but must be accompanied by some conduct or some overt act on the part of the claimant that may justly be considered reasonable diligence in carrying into execution the intention to actually use and occupy the premises for some of the purposes of a home. The legal functions of the overt act, or conduct, which it is said should accompany the intention in order to impress the homestead character upon unoccupied premises, are not solely to the purpose of showing the bona fides of the intention, but to manifest the exercise of reasonable diligence to put that intention into effect by actually using the premises as a home in the manner contemplated by the Constitution.”

Stripped of the unnecessary verbiage with which the rule has been somewhat obscured, it seems that it should be that intention is sufficient to fix a homestead right in unoccupied land, but that the mere oral testimony of witnesses unaccompanied by acts of the owner in connection with the land which tend to show that the land is being prepared for homestead, and no other purposes, such acts being put into effect within a reasonable time, will not show) intention. In other words, intention can only be shown by open, public, manifest acts in connection therewith, that show that the land has been set apart for homestead, and no other purposes. Band can be cleared and cultivated for other purposes than those of a homestead, and may have houses an'd other improvements placed upon it, and yet the land be for sale, or be kept for obtaining an income therefrom. The improvements made must be substantial in character, must be made in a reasonable time after the acquisition of the land, and must lead to the conclusion that they were intended when built to form a part of a homestead. The intention must he a continuing one to the time the issue of homestead vel non arises, because the lapse of time might have a tendency to indicate an abandonment of the original intention.

It is expanding the homestead right to an extent perhaps as far as could have been contemplated by the Constitution makers, when land never occupied by the owner or any one else is impressed with the homestead character by intention to occupy, proven by the proper facts and circumstances. The rule should not be enlarged. No case, among tbe many liberal ones as to homestead, which have expanded the doctrine almost to the breaking point, has been found that has permitted a judgment to stand on evidence of preparation for a homestead as sparse and unsatisfactory as in this case. In every case brought to the notice of this court there had been some peculiar circumstance which marked the improvement as one probably intended for a homestead, such as the fencing of lots and planting of sha'de trees. The latter might be planted on a lot intended lor other than homestead purposes, but usually such is not the case, and such act, taken with others renders it probable that the preparation is being made for a homestead.

The evidence in this case shows no preparation for a homestead, before the execution was levied, except the clearing of the land, more than a year prior thereto, at a cost of $10.50. The grubbing of the land did not in any way point to a homestead, for land is often cleared witliout tlie design ever being formed to fix a homestead. When the clearing of the land is looked at in connection with the fact that nothing whatever was done in connection with the land, until after the execution was levied, it has not probative effect. The land was cleared in the early part of June, 1915, an'd it was- seized under execution nearly 13 months afterwards. The marks made in May, 1910, for post holes, on the ground, with a shovel, were too trivial and indefinite to have any probative force. The fence was built after the property had been seized and the temporary writ of injunction granted, and should not be considered in ascertaining whether or not the land ha'd become a homestead. There was no present intention upon the part of appellee to occupy the land; but even in his own mind the intention was to so occupy it at some indefinite time in the future, when he might make enough money to improve the land. As a means to this end it seems that in his first 13 months of ownership he had expended $10.50 on the land. The evidence fails to show that the lots were the homestead.

The judgment is reversed, and judgment here rendered in favor of appellant.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    MOODY v. FIRST NAT. BANK OF ARANSAS PASS.
    (No. 5891.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.)
    Appeal and Error <©=3745 — Assignment op Errors — Transcript. .
    Assignments of error not appearing in the transcript cannot be considered.
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Action by the First National Bank of Ar-ansas Pass, Tex., against M. L. Moody. From judgment for plaintiff, defendant appeals.
    Affirmed.
    M. C. Nelson, of Sinton, for appellant. John De Berry Wheeler, of Aransas Pass, for appellee.
   MOURSUND, J.

Appellee sued appellant in justice’s court for $100, with interest thereon at the rate of 6 per cent, per annum from March 20, 1916, alleging in substance that it had parted with $100 to defendant’s son by reason of a certain false representation made by defendant. The trial resulted in a verdict and judgment for plaintiff, and upon appeal to the county court judgmlent was again rendered in favor of, plaintiff for $100 with interest thereon as prayed for. The defendant appealed, and presents a number of assignments of error in his brief, attacking the findings of fact and conclusions of law filed by the trial court, but such assignments of error do not appear in the transcript, and therefore cannot be considered. Peacock v. Moore, 125 S. W. 943; English v. Allen, 173 S. W. 1172.

No fundamental error appearing, the judgment must be affirmed.


text:
    MANSFIELD et ux. v. MANSFIELD et al.
    (No. 5894.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.)
    1. Appeal and Error <©=3759 — Assignments op Error* — Sueiuoienct.
    Under rule 29 for Courts of Civil Appeals (142 S. W. xiii), requiring assignments to be copied in the brief, assignments of error in the brief which are not correct copies of the grounds of the motion for new trial cannot be considered.
    2. Appeal and Error @=>1135 — Assignments —Fundamental Error.
    Where the assignments of error cannot be considered, and no fundamental error is apparent, the judgment must be affirmed.
    Appeal from District Court, Bandera County; R. H. Burney, Judge.
    Action by W. E. Mansfield! against John Mansfield and wife, in which Laura Mansfield was vouched as warrantor.of plaintiff’s title. From a judgment for plaintiff and for Laura Mansfield, defendants appeal.
    Affirmed.
    W. S. Ethridge and H. C. Duffy, both of Bandera, John R. Storms, of San Antonio, Arthur V. Wright, of Leakey, and Gilbert C. Storms, of Kerville, for appellants. Kamp-mann & Burney, of San Antonio, for appel-lees.
   MOURSUND, J.

This suit was brought by W. E. Mansfield against John and Mabel Mansfield, husband and wife, to recover 960 acres of land in Bandera county, fully described in the pleadings. In plaintiff’s second amended original petition Laura Mansfield was vouched in as warrantor, and plaintiff prayed for judgment against her upon her warranty if he failed to recover the land. The defendants, John and Mabel Mansfield, pleaded verbal and written gifts by Laura Mansfield to John Mansfield of said land and another tract of 320 acres prior to the execution of the deed to plaintiff, and by cross-action sought to recover from plaintiff said 960-acre tract, and from, plaintiff and Laura Mansfield the 320-acre tract. Plaintiff and Laura Mansfield filed pleas of misjoinder of parties and causes of action, which were sustained by the court, with the result that the cross-action was limited to the 960 acres sued for by plaintiff. Laura Mansfield filed an answer, and the parties filed supplemental pleadings, but for the purposes of this opinion the above statement will sufficiently disclose the issues. The cause was submitted upon special issues, and the answers thereto being in favor of plaintiff, judgment was rendered thereon in his favor.

Appellee objects to tlie consideration of the assignments of error in the brief on the ground that the same are not correct copies of the paragraphs of the motion for new trial. A comparison of the assignments with the paragraphs of the motion discloses that no effort was made to copy such paragraphs. It is apparent that the brief was written upon the theory that it was permissible to rewrite the assignments. Rule 29 (142 S. W. xiii) for the Courts of Civil Appeals requires that the assignments shall be copied in the brief, evidently in order to prevent controversies with regard to whether the assignments in the brief correctly present the ruling complained of in the assignments filed in the trial court. To consider the assignments iff appellant’s brief would amount to an abrogation of that part of rule 29 above referred to. The assignments will not be considered. Freeman v. Radway, 182 S. W. 1158; Dawson v. Bank, 181 S. W. 553; Shipp v. Cartwright, 182 S. W. 70; Progressive Oil Co. v. Crawford, 184 S. W. 728; Wentzell v. Chester, 189 S. W. 304; Holloman v. Black, 188 S. W. 973; Norton v. Lea, 170 S. W. 267; Smith v. Bogle, 165 S. W. 35.

There being no fundamental error apparent, the judgment will be affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    GILLES et al. v. MINERS’ BANK OF CARTERSVILLE, MO.
    (No. 1217.)

    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1917.
    On Motion for Rehearing, Nov. 7, 1917.)
    1. Limitation os’ Actions «§=^46(12) — Contracts — Assumption of Vendor’s Lien Note — “Contract in Writing.”
    Express assumption in a deed by the grantee of payment of a vendor’s lien note given by grantor to Ms vendor is a contract in writing, limitations against action on which by the holder of the note against such grantee begins to run from the date of such deed.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Written Contract.]
    On Motion for Rehearing.
    2. Parties ®=>94(2) — Misnomer — Plea in Abatement.
    A misnomer of defendant can be taken advantage of only by plea in abatement.
    3. Appeal and Error <®=o187(1) — Objection Below — Misnomer.
    Misnomer of defendant .cannot be urged for the first time on appeal.
    4. Judgment c®=>252(5) — Pleading to Sustain — Prayer.
    The facts pleaded, sustained by the evidence, warranting personal judgment against defendant, it may be had under a prayer not specifically asking therefor, but for such other and further relief as in law or in equity plaintiff may show itself entitled to.
    Appeal from District Court, Deaf Smith County; Jno. W. Yeale, Special Judge.
    Action by the Miners’ Bank of Cartersville, Missouri, against A. S. Gilíes and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    See, also, 184 S. W. 284.
    On the 27th day of May, 1907, W. G. Bryant and wife conveyed certain lands in Deaf Smith county to P. L. Vasse, by general warranty deed. As part payment for said land Vasse executed and delivered to Bryant a certain promissory note in the sum of $4,500, due on or before two years from date, providing for 8 per cent, interest and 10 per cent, attorney’s fees. The vendor’s lien was expressly retained in the deed to secure the payment of the said note. Before maturity thereof Bryant, for a valuable consideration, in due course of trade, transferred the note to the appellee bank. On February 15, 1912, Vasse and wife, by general warranty deed, conveyed the said land to appellant Gilíes. As part of the consideration for said conveyance Gilíes assumed payment of the above-described note, which assumption was recited in the deed to secure payment of the said note. On April 10, 1914, appellee bank filed suit against Vasse, Bryant, and Gilíes, praying for judgment for principal, interest, and attorney’s fees on the note, and for foreclosure of the vendor’s lien on the land against all of the parties. The original petition was amended November 27, 1914, for the purpose of correcting some errors in the description of the lands. On November 6, 1916, plaintiff filed a second amended original petition upon which the suit was tried. Eliza Blackburn and her guardian, to whom Gilíes had executed a mortgage upon the lands described in the petition on November 1, 1912, were made parties. The original and both amended petitions prayed for personal judgment against Gilíes, and for foreclosure of the vendor’s lein against all parties. November 16, 1916, Gilíes and the parties to whom he mortgaged the lands answered, pleading the statute of limitations against the note described above.
    W. H. Russell, of Hereford, for appellants. Gilliland & Estes, of Hereford, for appellee.

      Second petition for rehearing denied November 14, 1917.

   HALL, J.

(after stating the facts as above).

Upon the above statement of facts, which we think are the material facts in the case, the judgment should be affirmed. The case is presented upon several assignments of error, many of which we think have no application to the case as made by the pleadings and evidence. It is not necessary for us to discuss articles 5694-5695, R. S., nor the conflict in some of the decisions construing such articles, as they do not apply. Under the Act of 1905, p. 334, Sayles’ Civil Statutes, Supplement of 1904-1906, art. 3353, the Original note executed by Vasse was not barred at the time Gilíes purchased the land and assumed its payment. Having accepted a deed in which it is recited that he assumed payment of the said note as part of the consideration for the conveyance limitation did not begin to run against the plaintiff’s right to recover a judgment against him upon such undertaking until after the expiration of four years from the date of his deed. The rule governing the the liability of the said vendee in such case was declared by Brewer, Justice, in Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765, in the following language:

“Such an undertaking is a contract in writing, and the statute of limitations does not begin to run upon such a contract until the execution of the deed. Nor is it material that this contract is not signed by the grantee. The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing signed by only the lessor makes it a written contract binding upon such lessee; and suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee. And it is not to be considered as a mere promise or acknowledgment, as named in the exceptions to the statute of limitations, and therefore to be signed by the party to be charged. Those exceptions apply to debts already existing against the parties sought to be held, and aim to continue in force prior liabilities. But the grantee in such a deed was not liable before its execution. His liability dates from that. That is the first contract he has made; the first obligation he has assumed. At that time, therefore, as to him, the statute first commences to run. Nor is he discharged by the fact that the debt as to the original debtor has since his promise become barred by the statutes of limitations, for his contract is an original absolute promise to pay the debt and not a mere contract of indemnity, and to save the original debt- or harmless. The creditor may ignore the original debtor entirely, and proceed directly and solely upon this promise. The grantee is not simply a surety. His promise is not to see that the original debtor pays or to pay if he does not, but it is a direct, absolute, and unconditional promise to pay the debt to the creditor. Even where there has been only a guaranty of payment, it has been decided that the statute did not commence to run as to the guarantor until the date of his guaranty. * * * Upon the same principle, and by the same reasoning, it would seem to be clear, that, where the deed specifies that it is subject to a certain mortgage, an acceptance of a deed is an undertaking that to the extent at least of the value of the granted premises, the grantee shall pay the mortgage. Or, in other words, it is an agreement by the grantee that the granted premises shall be used so far as may be necessary to discharge and pay the mortgage and as in the case last suggested, and for the reasons there given, the statute begins to run only from the execution of the deed.” Hendricks v. Brooks, 80 Kan. 1, 101 Pac. 622, 133 Am. St. Rep. 186; 2 Jones on Mortgages. (7th Ed.) § 1201.

Vernon’s Sayles’ Civil Statutes, art. 5688, provides that there shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: (1) Actions for debt, where the indebtedness is evidenced by or founded upon any contract in writing. The right to recover against Gilíes is governed by that article of the statutes..

Eliza Blackburn and her guardian were made parties and, having failed to exercise the right to redeem, are barred by the judgment. The judgment of the court below is in all things affirmed.

On Motion for Rehearing.

Appellant now insists that we erred in stating in the original opinion that the suit was against Vasse, Bryant, and Gilíes, and for the first time, in the motion, insists that because the suit was originally filed against Albert O. Gilíes, that Gilíes’ initials are A. S., and he was not properly named until the filing of a second amended petition, November 6, 1916, he was not a party to the suit until the filing of said last-named pleading, and therefore the statute of limitation bars the action as to him. This matter has not been mentioned until the filing of the motion for rehearing. It was announced at an early date in this state that middle initials were never taken notice of under the common-law practice. Whether or not that rule obtains now is a matter of no concern, since a misnomer can be taken advantage of only by plea in abatement. McGhee v. Romatka, 19 Tex. Civ. App. 397, 47 S. W. 291; Id., 93 Tex. 689. In the preliminary statement of the nature and result of the suit, as set out in the original opinion, we adopted the substance of such statement as it appears in appellant’s brief. As we understand the authorities it is too late to urge the matter of misnomer in this court. It appears from the entire record that A. S. Gilíes, against whom the personal judgment was rendered, is the party who purchased the land involved in this controversy, and who assumed the payment of the note in question.

It is further asserted in the motion that a judgment against A. iS. Gilíes personally is not warranted by the prayer of plaintiff’s pleadings. The amended petition sets up the fact that as part consideration for the conveyance of the land to him, Gilíes assumed payment of the note, and while there is no specific prayer against Gilíes for a personal judgment appellee prays “for such other and further relief, both general and special, as in law or in equity it may show itself entitled to.” The evidence having sustained the allegation showing Gilíes’ liability, appellant’s contention must be overruled. Crews & Williams v. Gullett Gin Co., 189 S. W. 793; Groesbeck v. Wiest, 157 S. W. 258.

We have again reviewed the authorities upon the principal contention of appellant and are inclined to adhere to our former holding.

The motion is in all things overruled.
      gsuFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PANHANDLE & S. F. RY. CO. et al. v. BROWN.
    (No. 1227.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 24, 1917.)
    CaRkiers <&wkey;280(12) — Carriage or Live Stock — Injuries in Transit.
    In an action for damage to a shipment of cattle from delay in transit, and from furnishing a car defectively bedded with cinders, which caused the cattle to have sore feet, the court properly refused to give defendant’s special charge that the jury should not consider the alleged shrinkage in weight of the cattle, because it was not shown that they sustained any damage by reason of shrinking in weight for which defendant was liable; there being evidence that the cattle were delayed at various points, and that they were loaded into a ear bedded. with cinders, which resulted in mailing their feet so sore that they could not stand to eat, resulting in shrinkage of weight.
    Appeal from Hale County Court; Charles Clements, Judge.
    Action by T. H. Brown against the Panhandle & Santa ES Railway Company and. others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellants. Mathes & Williams, of Plainview, for appellee.
   HALL, J.

Appellee Brown sued the appellants to recover damages alleged to have accrued to a shipment of 68 cattle from Plainview, Tex., to Kansas City, Mo. The damages are alleged to have resulted from unreasonable and negligent delay in transit, and from furnishing one car defectively bedded with cinders, which caused the cattle loaded in said car to have sore feet, forcing them to lie down. It is further alleged that the cattle were kept in the cars for more than 36 hours without being unloaded for feed, water, and rest, and were held in the cars after their arrival at Kansas City for several hours longer than was necessary. A trial before a jury resulted in a verdict in favor of appellee for $240.

The first assignment of error is based upon the court’s refusal to give appellant’s special charge to the jury, to the effect that in arriving at a verdict the jury should not consider the alleged shrinkage in weight of the cows because under the evidence it was not shown that said cows sustained any damage by reason of shrinkage in weight, for which the defendants were liable. The proposition urged under this assignment is that plaintiff is not entitled to recover damages for such shrinkage because the evidence shows that the only delay to which the cows were subjected in transit was at the request of plaintiff, and that but for such request the cows would have arrived at Kansas City on time. The proposition and assignment ■ do not present the same issue, but reference to the ■ statement of facts shows that both the assignment and proposition enlarging it must be overruled. There is evidence in the record to the effect that the cattle were delayed at Amarillo 6 or 7 hours without being unloaded, and that a delay of from 1 to 2 hours occurred at Emporia. The proof is clear that the delay from Plainview to Kansas City was something over 20 hours; that they were unloaded at Emporia at 3 a. m. Sunday, and reloaded about 6 p. m., and did not leave - Emporia until about 8:30 p. m. The evidence further shows that some of the cattle were loaded into a car which was bedded with cinders, and that this resulted in making their feet so sore they could not stand and eat. The uncontroverted proof is that while in the pens at Emporia they were lying down most of the time; that on account of sore feet were not -able to stand up long enough to eat the feed given them. This, of course, resulted in shrinkage in weight, and affected their appearance when they reached the market. We think the charge of the court is a fair presentation of the case, and that no error was committed in refusing the special charges asked.

Without discussing the assignments in detail, we think a proper verdict has been reached, and the judgment is therefore affirmed.


author: ELY, C. J.

text:
    HAMILTON et al. v. WILSON.
    (No. 5899.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.)
    Appeal and Error <&wkey;554(3) — Review—Record.
    A judgment must be affirmed where all the assignments of error must be tested by the facts, and no statement of facts was filed.
    Error from Bexar County Court; John H. Clark, Judge.
    Action by A. J. Hamilton and another against O. W, Wilson. There was a judgment for defendant, and plaintiffs bring error.
    Affirmed.
    A. L. Hatchett, of San Antonio, for plaintiffs in error. Leonard Brown, of San Antonio, for defendant in error.
   ELY, C. J.

This is a suit for damages, instituted by plaintiffs in the county court for civil cases in Bexar county, to recover damages in the sum of $500 of defendant, alleged to have accrued by reason of an assault made by his servants in and upon the person of A. J. Hamilton, one of the plaintiffs, the other being his wife, Lue Ida Hamilton, who for some reason not disclosed was joined in the suit. No jury was demanded, and the court rendered judgment that plaintiffs take nothing by their suit, and pay all costs of suit.

There is no statement of facts filed in this court, and, as the merits of all of the assignments of error must be tested by tbe facts, this court is in no position to pass upon tbe same.

There is no error apparent of record, and tbe judgment is affirmed.
      <g=»Por other cases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    WHITLEY et al. v. ALEXANDER et al.
    (No. 748.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 25, 1917.)
    1. Appeal and Ekkoe @^1010(1) — Review— Findings oe Fact.
    Findings of the trial court supported by direct and positive evidence cannot be disturbed.
    2. Homestead <§=168 — Peoperty Constituting — Sepaeate Tracts.
    The owner of a tract of land 100 by 200 feet in one inclosure, and intended as a homestead, put cross-fences subdividing it and built a small bouse on tbe north end, which, in 1899 or 1900, they moved to a portion of the lot 44 feet by 73 feet in the southeast corner, where they lived while building a larger house on the north end. After moving into the new house they rented the small house at different times, but reserved the use of the yard for chickens, calves, and horses. It was intended to either make a barn out of the small house or sell it and have it moved, and in 1915 it was sold and removed. The tract 44 feet by 73 feet was at all times separated by a fence, containing gates and openings, from the remainder of the lot. Held, that even though it was intended to continue to rent such house so long as it was profitable to do so there was no segregation of this portion of the homestead, coupled with the intention to abandon it as a part of the homestead, so as to constitute' an abandonment.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Action by Mrs. Sallie Alexander and others against Frank Whitley and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Ritchie & Cousins, of Mineral Wells, for appellants. W. P. 'Smith and J. W. Bird-well, both of Mineral Wells, for appellees.
   HARPER, C. J.

This is an appeal from a judgment enjoining the sale of certain property under order of sale, under the holding by the trial court that it was the homestead of appellee, therefore not subject to forced sale.

Tbe trial court filed the following findings of fact, which we adopt:

“(1) The defendants in open court admitted that all of the property in controversy, except a small portion being 44 feet north and south by 73 feet east and west, out of the southeast corner of said property, is and was the homestead of the plaintiffs at all times at, and since, and before, any attempt was made by the city of Mineral Wells to fix a lien on same, and that the plaintiff is entitled to have the injunction perpetuated as to all of said property' except said 44x73 feet.
“(2) It was agreed in open court by plaintiffs and defendants that if said 44x73 feet was the homestead of the plaintiffs on the 23d day of November, 1914, the day on which the city of Mineral Wells attempted to fix a lien on same for pavement, then no lien was fixed, and that the plaintiffs are entitled to have said injunction perpetuated as to all of the property in controversy. But if said 44x73 feet was not the homestead of the plaintiffs at the time the city of Mineral Wells attempted to fix a lien on same, then the lien did attach to said 44x73 feet, and the defendants would be entitled to have the temporary injunction dissolved as to said 44x73 feet.
“(3) On the question as to whether or not said 44x73 feet of land was the homestead of the plaintiffs Sallie Alexander and G. F. Alexander ■on the 23d day of November, 1914, I find the facts to he as follows:
“(a) That the plaintiffs, then being husband and wife, purchased the property in controversy about the year 1893, said property being described as follows: 100x200 feet off the east side of lot No. 1, in block No. 17, of the Lynch addition to the city of Mineral Wells in Palo Pinto county, Tex., beginning at the N. E. corner of said lot and block, thence south 200 feet, thence west 100 feet, thence north 200 feet, thence east 100 feet to the place of beginning.
“(b) That soon after the purchase of said property by the plaintiffs they fenced same in one inclosure, and built a small house on the north end of same, and moved into said house with the intention of making said property their homestead; that they put cross-fences on said property, making a horse and calf lot on the south end of said property covering said 44x73 feet, with a barn on another part, and a garden on another part; that every part of said property was used by the plaintiffs for the purposes of a homo.
“(c) That in about 1899 or 1900 plaintiffs moved said house from the north end of said lot to the southeast corner of said lot and on the 44x73 feet in controversy in this suit; that they moved into and occupied said house for three or four years; that, when they moved said small house from the north to the south end of said lot, they did so with the intention of building a better house on the north end of the lot for a residence or home; that, after living in said house on the said 44x73 feet for three or four years, the plaintiffs built a larger house on the north end of said lot and moved into same, and have resided there ever since, that is, for about 13 or 14 years; that it was the intention of the plaintiffs when they moved into the new house to make a barn out of the small house, or to sell it and have it removed from the premises.
“(d) That plaintiffs have, since moving into the new house, rented the little house to different parties for short periods of time; that said renting was temporary, but that said house, up to within about a year before same was removed, was at all times for rent; that the fences and cross-fences have never been changed in any way since the small house was built on the north end of the lot, except to set the fence aside while the small house was being moved, and then it was replaced in the same position and has remained the same at all times since; that when said small house was rented, only the house was rented, and the plaintiffs reserved the use of the yard for their chickens and calves and horses;
“(e) I find that the uncontradicted evidence shows that said small house was moved off of said 44x73 feet and sold on the 1st day of February, 1915; that the last tenant who occupied said house vacated same on December 15, 1914, and that said house was not for rent, and plaintiffs refused to rent same after that date; that, after said house was sold and moved off on the 1st day of February, 1915, said 44x73 feet, together with the lots on the southwestern part of the premises, were used for the calves, chickens, and horses; that the plaintiffs always refused to sell any part of said premises because they wanted to keep all of it as a homestead; that every part of said premises was connected with every other part of said premises by gates, and that no part of said premises has ever been segregated from any other part of said premises, and that, all of said premises is and has been for more than 20 years inclosed in one fence, and that said cross-fences have remained in the same place for more than 20 years.”
Additional Bindings.
“(1) That, at all times from the date plaintiff moved from the house on the 44x73 feet in controversy to the new residence erected on another part of the property up to the present time, the 44x73 feet was separated by fence, which contained gates and openings, from the remainder of the lot. These fences have been there for years.
“(2) That during the time the plaintiffs rented said property they pastured the Bermuda grass on said lot with their horse, and that the tenants would tell them to pasture the grass rather thau to have it mowed down.
“(3) The plaintiffs never at any time during their ownership of said property offered this place for sale, and have refused to sell it.”

By their seven assignments of error, appellants attack the findings of fact and the judgment for the following reasons: (1) The undisputed evidence shows that the portion of land sought to be sold is not a part of the homestead; (2) and (3) the court erred in holding that thé renting was only temporary; (4) the evidence did not justify the finding that plaintiff reserved the use of the rented premises as a part of their yard; (5) that the evidence does not justify the finding that when plaintiff moved out of the small house they intended to make a barn of it or sell it; (6) that the evidence does not support the finding that no part of the premises had ever been segregated from the homstead; (7) erred in refusing to find that plaintiffs intended to continue to rent the premises so long as it could be done profitably.

It is apparent that the only question for determination is whether or not the real estate in controversy is a part of the homestead of G. F. Alexander and his wife, Mrs. Sallie Alexander.

We find direct and positive evidence in the record to support the findings of fact by the trial court; therefore we are not authorized to disturb them.

It would serve no purpose to quote from the testimony of the witnesses the parts which we conclude support the findings complained of — so refrain from doing so.

By the seventh assignment appellant urges that the court, under the facts, should have found that the plaintiffs intended to continue to rent the premises so long as it was profitable to do so. Under the evidence the court was justified in refusing to make the finding requested, but whether he was justified or not was immaterial, for the test is, was there such a segregation of this portion of the homestead coupled w'ith an intention to abandon it as a part thereof as to constitute an abandonment? We think not.

The facts are sufficient to sustain the findings of the trial court that there was no, segregation intended, and the renting of the cottage was merely temporary, hence there was no abandonment. Drought & Co. v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 188; Shook v. Shook, 21 Tex. Civ. App. 177, 50 S. W. 731.

Finding no error in the record the cause is affirmed.
      É=For other cases see same tonic and KEY-NUMBER m all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    NATIONAL BANK OF COMMERCE OF AMARILLO et al. v. A. WALKER BROKERAGE CO.
    (No. 1216.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1917.
    Rehearing Denied Nov. 7, 1917.)
    1. Garnishment 45=88 — Affidavit—Aixegation oe Residence.
    In an affidavit or sworn application for a writ of garnishment, averment of title of garnishee as “National Bank of Commerce of Amarillo, Texas,” is not allegation of residence of garnishee required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 271, subd. 2, and article 273.
    2. Garnishment <§=89 — Bond—Sufficiency.
    A garnishment bond required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 272, has performed its function when the suit in which it was filed has been dismissed, and it cannot be used in a new suit for the purpose of procuring another writ against a different garnishee.
    3. Garnishment <§=88 — Bonds—Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 271, subds. 1 and 3, arts. 272, 273, providing that a writ of garnishment cannot be issued' without bond unless the affidavit or application shows that an attachment has been issued or judgment rendered, the application for the writ or the affidavit must show that attachment has been issued, if plaintiff relies thereon.
    4. Garnishment <§=2 — Statute—Construction.
    Statutes authorizing writ of garnishment must be strictly construed, and a party attempting to avail himself of that remedy must strictly follow the law.
    5. Justices of the Peace <§=87(3) — Garnishment — Defendant—Service of Process.
    Service may be had in a garnishment suit under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2370, by service, of nonresident notice issued out of the justice court.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Garnishment proceedings by the A. Walker Brokerage Company against the National Bank of Commerce of Amarillo, in which Shawnee National Bank intervened. From judgment for plaintiff, garnishee and inter-vener appeal.
    Reversed in part.
    Reeder & Dooley, of Amarillo, for appellants. Kimbrough, Underwood & Jackson and W. R. Watkins, all of Amarillo, for ap-pellee.
   HUFF, C. J.

On the 20th day of July, 1916, th$ A. Walker Brokerage Company filed suit in the justice court against A. Morrison for $151. A. Morrison at that time resided in Oklahoma, and was cited to appear by a nonresident notice, issued out of the justice court on the day the suit was filed and service was had on him on the 24th day of July, 191G. Thereafter judgment was rendered in that cause against Morrison on the 21st day of August, 1016. The terms for justice court commence on the third Monday of each month. At the time of filing the suit the plaintiff therein sued out a writ of garnishment against J. E. Bryant Company and the National Bank of Commerce of Amarillo, and on the 25th of July, 1916, a writ of garnishment was issued against the above-named garnishees, and was served on them the same day. On the 21st day of August, 1916, the National Bank of Commerce of Amarillo filed its motion to quash the garnishment therein, which the court sustained, and the garnishment proceedings were dismissed. Forthwith, after the dismissal thereof, the plaintiff, A. Walker & Company, on the 21st day of August, filed this proceeding against the National Bank of Commerce alone and caused a writ of garnishment to issue and to be served upon the bank on that day. The number of the original suit out of which the garnishment was issued is No. 366. The first garnishment suit against Bryant & Co. and the Bank of Commerce, which was dismissed, is No. 367, and the second garnishment proceeding, in which the Bank of Commerce was alone the garnishee, is No. 375 on the justice court docket. In the last garnishment the plaintiff, A. Walker Brokerage Company, did not file a new garnishment bond, but in lieu thereof relied on the same bond which had been filed in cause No. 387. The affidavit for garnishment, upon which this action is based, was sworn to August 21, 1916, and filed on that day in the justice court. It is stated therein A. Morrison was indebted to A. Walker Brokerage Company in the sum of $151, with 6 per cent, interest from the 1st day of August, 1915, which amount was claimed in the suit; that it “is just, due, and unpaid; that defendant had not in possession sufficient property subject ■to execution; * * * that he has reason to believe and does believe that the National Bank of Commerce of Amarillo, Tex., is indebted to the said defendants, and that it has in its hands effects belonging to said defendant. And he further says that the garnishment applied for is not sued out to injure either the garnishee or the defendant.” The bond for garnishment is dated July 25, 1916, and was filed and approved by the justice of the peace on that day; is made payable to A. Morrison, defendant, and conditioned as required by the statute. The bank, on the ISth day of September, 1916, presented in the justice court its motion to quash the garnishment on two grounds: (1) The affidavit does not purport to recite the residence or domicile of the garnishee; (2) that the.affidavit was not accompanied by the necessary bond which was a condition precedent to the legal and lawful issuance of the garnishment.

This motion was overruled in the justice court and the ease proceeded to judgment upon issues presented by the garnishee and the intervener, the Shawnee National Bank, which that court rendered against the garnishee and the intervener, and from which they appealed to the county court of Potter county. On appeal to the county court the motion was again presented and a like ruling made therein by the judge thereof. The case was again tried on the issues presented by the answer of the garnishee and the petition of the intervener, and the Shawnee National Bank, and judgment there rendered against the garnishee and intervener, from which appeal is prosecuted to this court.

The first assignment presented by the garnishee is to the action of the court in overruling the motion to quash. This assignment is objected to by the appellee. We think the assignment, together with the propositions and statement thereunder, are not subject to the objections urged. The objections are therefore overruled. Clark v. Briley, 193 S. W. 426 (10).

The first objection to the affidavit is that it does not state the residence or domicile of the garnishee. Whether the affidavit in stating “that National Bank of Commerce of Amarillo, Texas,” is intended to allege its corporate name or its place of residence ⅛ left for inference. The answer of the appellant is by that name, and all the proceedings in the case appear to have treated that as the name of the garnishee. The ease is docketed as “National Bank of Commerce of Amarillo, garnishee.” It answers as “National Bank of Commerce of Amarillo, a corporation, garnishee,” and judgment is rendered against it as such. Article 273, Vernon’s Sayles’ Civil Statutes, provides that an application shall be made before the writ of garnishment is issued, and shall state the name and residence of the garnishee. It has been expressly held a failure to state the residence of the garnishee, either in the affidavit required by subdivision 2 of article 271, or the sworn application, for the writ under article'273 is fatal to the garnishment. In the affidavit or application the residence must be sworn to, and it will make no difference whether the motion designates it the affidavit or application. Harrington v. Edrington, 38 S. W. 246. In the case of Third National Bank of Baltimore v. Teal (C. C.) 5 Fed. 503, it is said:

“The title of the plaintiff, ‘The National Bank of Baltimore,’ is not in itself an averment either that the plaintiff is a banking association, established in the district of Maryland, or that it is established under the law of the United States providing for national banking associations. There are other Baltimores than the one in Maryland, and there does not appear to be in the national bank act anything to probihit an association formed in any other state from having been the first to take the title of the plaintiff, if they had seen fit, and if the comptroller of the currency had approved. The name of the bank is subject only to the approval of the comptroller of the currency, and we find nothing in the act itself which would prevent an association from adopting any name which he approves of.”

So we may say the averment of the title of the National Bank of Commerce of Amarillo is not an allegation that its residence or place of business is in Potter county, Tex., or in the town of Amarillo. Its residence may be shown either in the affidavit or on application for the writ, but an averment of its residence cannot he dispensed with. In this case the name of the garnishee is not distinctly averred, or its residence is not shown, and in either event the affidavit is defective.

The second ground that the affidavit was not accompanied by a bond which was a condition precedent to the issuance of the writ we believe to be sound. The affidavit was the foundation for the garnishment proceedings. By it the suit is commenced in so far as the garnishee is concerned and a defect therein the garnishee may take advantage of. Bowers v. Continental Insurance Co., 65 Tex. 51. The affidavit in this case appears to have been made under subdivision No. 2, art. 271; that is, that the plaintiff sued for a debt, and that it is just, due, and unpaid, and that the defendant had no property within this state subject to execution sufficient to pay the debt, and that the garnishment applied for was not sued out to injure either the defendant or the garnishee. Article 272 provides in the case mentioned in subdivision 2 of the preceding article, the plaintiff shall execute a bond, payable to the defendant, conditioned that he will prosecute his suit to effect and pay all damages, and costs that may be adjudged against him for wrongfully suing out the garnishment. If the affidavit is the foundation of the suit against the garnishee, then there was no bond executed in that suit which was filed August 21, 1916. The bond was executed, filed,' and approved on the 25th day of July, 1916, in a suit instituted against the Bryant Company and the garnishee herein jointly. This suit was dismissed; the bond had therefore performed its function when the writ was issued therein, and could not again be used in a new suit for the purpose of procuring another writ against a different garnishee and in a new suit. Jeff-ries v. Dancey, 44 Miss. 693. The bond herein should have amounted to a new execution by the principal and sureties therein for the new suit filed against the garnishee herein, and should have been filed in such new suit as a part thereof. In the justice court the bond shows by its file number that it was filed in No. 367, the original garnishment suit, and not in No. 375, the new suit, and the one before this court.

It is urged in this court that after the judgment was rendered it would make no difference if there was no bond. The affidavit in this case has indorsed on it, “Affidavit and bond before judgment.” Subdivisions, Nos. 1 and 3 of article 271 authorize the issuance of the writ without bond in garnishment where an attachment has been sued out or where judgment has been rendered. There was no attachment sued out in this case. The affidavit shows the defendant Morrison had no property in this state subject to execution. Therefore a writ of garnishment was applied for against the garnishee bank, who it is therein asserted was indebted to Morrison. There could have been no judgment without the garnishment. It was a suit against a nonresident, and unless there was a garnishment the court had no jurisdiction over the person of Morrison, and it therefore required the proceeding to give jurisdiction to render a judgment in rem. However this may be, article 273 requires the application for the writ to show the facts authorizing its issuance, and that the law has been complied with. If an attachment had been issued or judgment rendered, that fact must be shown by the application for the writ or in the affidavit. Scurlock v. Railway Co., 77 Tex. 478,14 S. W. 148; Sullivan v. King, 80 S. W. 1048.

It is the rule in this state that statutes authorizing the writ of garnishment must be strictly construed, and a party attempting to avail himself of the remedy must strictly follow the law. Jemison v. Scarborough, 56 Tex. 360. The appellant has not followed the law with reference to garnishments as above pointed out, and the proceeding therefor must fall. The appellant’s assignment with reference thereto will be sustained.

The appellant bank also made a motion to stay further proceeding, except it be to dismiss the suit until valid service or process was had upon defendant A. Morrison in the main action. It appears to be appellant's contention that service could not be had by the issuance or service of nonresidence notice, issued out of the justice court. In this appellant is in error. Article 2370, Vernon’s Sayles’ Civil Statutes. This article, as it stood under the preceding Revised Statutes, was amended by Acts 1909, p. 89, and as amended is carried forward as article 2370. This amendment is subsequent to the case of Carpenter v. Anderson, 33 Tex. Civ. App. 491, 77 S. W. 293.

The view we take of the assignment of the National Bank of Commerce of Amarillo will render it unnecessary to consider the assignments made by the Shawnee National Bank, the intervener. The garnishment proceeding will therefore be abated, and the suit dismissed by this court, and the judgment of the court below to that extent will be reversed and rendered, taxing the costs of this appeal and the court below in the garnishment proceeding against appellee.
      j?55>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PI-IIDDIPS, O. J.

text:
    HOUSTON OIL CO. OF TEXAS v. JONES et al.
    (No. 9872.)
    (Supreme Court of Texas.
    Nov. 14, 1917.)
    Advebse Possession <§==>67 — “Claim: oe Rig tit” — Statute.
    The “claim of right” to which Rev. St. art. 6681, defining “adverse possession,” refers, prescribes merely that the entry of the limitation claimant on the land must be with intent to claim it as his own, to hold it for himself, such continuing to be the nature of his possession, and it is unnecessary that his entry or holding be founded on some character of title.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Claim of Right.]
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Suit by H. C. Jones and others against the Houston Oil Company of Texas. Judgment for plaintiffs, and defendant appealed to the court of Civil Appeals, which affirmed (184 S. W. Oil), and defendant brings error.
    Writ of error refused.
    See, also, 161 S. W. 92.
    IT. O. Head, of Sherman, Parker & Kennedy, and Fred L. Williams, all of Houston, for plaintiff in error. Jno. B. Warren, of Houston, for defendants, in error.
   PI-IIDDIPS, O. J.

The suit was by the heirs of Mrs. D. M. Jones against the Houston Oil Company of Texas for the recovery of an undivided one-half interest in a 160 acre tract of land. The title relied upon by the plaintiffs was one of ten years limitation which they claimed was perfected by their father, D. M. Jones, during the life-time of their mother. The verdict of the jury was in their favor and has support in the evidence.

It is urged that there was no proof that D. M. Jones had any claim to the land when he entered upon it, and none that his occupancy was continued under any claim other than an intention to hold the land as a home. For this reason it is contended that his possession was not adverse within the meaning of the statute, because not commenced and continued under “a claim of right.” Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210, is relied upon in support of this proposition.

The statute defining “adverse possession,” Article 5681, is as follows:

‘Adverse possession’ is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”

While the requirement that the appropriation of the land must be commenced and continued “under a claim of right inconsistent with and hostile to the claim of another” was first incorporated in the statute in 1879, at an early day this court announced that such claim was an essential element of adverse possession. Portis v. Hill, 3 Tex. 273. The present statutory definition of “adverse possession,” in a word, is simply that which the court had always held it to mean and as other authorities, generally, had defined it. For instance it was said by Judge Moore in Word v. Drouthett, 44 Tex. 365, decided in 1875:

“His entry upon the land must be with intent to claim it as his own or hold it for himself; or his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or declaration showing such purpose, in order to set the statute in motion in his favor. (Wash, on Real Prop. 125; 2 Smith’s Lead. Oases, 561.)”

The court has a number of times declared that a naked trespasser may acquire a limitation title" to land under the ten years statute. Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, Craig v. Cartwright, 65 Tex. 413, and Word v. Drouthett are among the decisions so holding.

It was not the purpose of Stevens v. Pedregón- to overrule this established holding of the court, though there is an expression in Chief Justice Brown’s opinion that is to some extent confusing.

The “claim of right” to which the statute refers simply means that the entry of the limitation claimant must he with the intent to claim the land as his own, to hold it for himself; and such must continue to be the nature of his possession. That it is necessary that his entry upon or holding of the land be founded upon his having some character of title is opposed to the theory of the ten years limitation statute.

The case of Houston Oil Co. v. Davis, 200 S. W. —-, in which a writ of error has been granted and which has not yet been decided, involves this question, but we deem it best to relieve the opinions of the court of any possible doubt upon it. For that reason this opinion is written now, rather than deferred until the decision of the above case.

The writ of error is refused.


author: DAVIDSON, P. J.

text:
    DANIEL v. STATE.
    (No. 4654.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    Cbiminal Law <§=> 1159(3) — Review — Conflicting- Evidence.
    Where, on a trial for violating the local option law (Rev. St. 1911, art. 5716 et seq.), the state proved that defendant sold alcohol to a certain person, while defendant denied it, the jury’s finding in favor of the state’s evidence would not be disturbed.
    Appeal from District Court, Morris County ; J. A. Ward, Judge.
    J. S. Daniel was convicted of violating the local option law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his p-un-ishment being assessed at one year’s confinement in the penitentiary.

The only bill of exceptions found in the record was reserved to the action of the court overruling the motion for new trial. This adds nothing to the matters contained in the motion for new trial, and does not strengthen anything connected with the action of the court in this respect. The motion for new trial is based mainly upon the sufficiency of the testimony to support the conviction. This is set out in different ways in four or five paragraphs of the motion. The evidence is before us, and is very brief. The state proved that appellants sold some alcohol to the alleged purchaser, whose name was Cleveland Giles. This was denied by appellant. The Jury solved the question in favor of the state’s evidence. It was an issue squarely and fairly presented, and we do not feel justified in disturbing the finding of the jury.

The judgment, therefore, will he affirmed.
      <a=>Por other eases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FISHER v. STATE.
    (No. 4665.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    Criminal Law <§=^1124(3) — Appeal—Record —Matters Presented eos Review.
    The denial of a motion for a new trial for newly discovered evidence cannot be considered on appeal, where the evidence is.not brought up.
    Appeal from District Court, Ft. Bend County ; Samuel J. Styles, Judge.
    Marcus Fisher was convicted of murder, and he appeals. .
    Affirmed.
    E. B. Hendricks, Asst Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment assessed at ten years’ confinement in the penitentiary.

The record is without statement of facts-as well as without bills of exception. So far as we can ascertain from' the record, there was no error committed. The motion for new trial sets up the fact that there was newly discovered testimony. It is unnecessary to undertake to discuss that question without the evidence.

The judgment is affirmed.


author: MORROW, J.

text:
    HAMILTON v. STATE.
    (No. 4651.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    Criminal Law <§=>1090(1) — Appea]>-Bill oe Exceptions — Statement oe Facts — Necessity.
    Where the indictment is apparently regular, there is nothing to review in the absence of a statement of facts, or bills of exceptions.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Joe Hamilton was convicted of robbery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction under the indictment is for robbery, and penalty fixed at confinement in the state penitentiary for seven years.

The indictment appears regular, and ih the absence of statement of facts or bills of exceptions we find nothing to review.

The judgment is affirmed.