author: PHEASANTS, C. J.

text:
    GIBBONS v. ROSS et al.
    (No. 6704.)
    (Court of Civil Appeals of Texas. Galveston.
    March 18, 1914.
    On Motion for Rehearing May 4, 1914.)
    1. Couets (§ 207)—Court of Civil Appeals —Jurisdiction—Injunction.
    Whenever it is necessary¡ in order to protect or enforce the jurisdiction of the Court of Civil Appeals, to preserve the status quo of the parties, such courts have jurisdiction to grant an injunction for that purpose.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 768; Dec. Dig. § 207.]
    2. Judgment (§ 405) _-Equitadle Relief— Irreparable Injury.
    Where plaintiff’s tenant had dispossessed one of the defendants, who was a tenant of the other, from the premises in controversy, and the latter had secured a judgment in an action of forcible entry and detainer, in which action plaintiff’s superior title could not be relied upon, plaintiff is not entitled to a temporary injunction, in a suit in trespass to try title, to restrain the writ of restitution in the forcible entry action, without a showing that the issuance of such writ would work irreparable injury to plaintiff, or at least greater injury than defendants would suffer by 'being restrained from enforcing the judgment.
    TEd. Note.—For other cases, see Judgment, Cent. Dig. §§ 766, 767; Dec. Dig. § 405.]
    On Motion for Rehearing.
    3. Judgment (§ 408)—Equitable Relief-Insolvency of Defendant.
    Where it appeared that the defendant tenant, who was plaintiff in the former action, and who alone would be responsible for damages resulting from the enforcement of the judgment, although solvent, was not possessed of suflieient property to respond in damages for the rental value of premises during the penden-cy of the suit in trespass to try title, while the defendants could be secured against any loss by an injunction bond, the balancing of convenience is in favor of the plaintiff, and a temporary injunction will be issued.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 772; Dec. Dig. § 40S.]
    4. Judgment (§ 451) — Equitable Relief-Defenses — 'Weongbul Acts of Plaintiff.
    The fact that the plaintiff, in a suit in trespass to try - title, had wrongfully entered upon the possession of the defendant, for which entry the defendant had secured a judgment in forcible entry and detainer, does 'not deprive the plaintiff of his right to a temporary injunction to restrain the enforcement of the forcible entry and detainer judgment; the rule of balancing of convenience in such a case being followed rather than the rule that he who comes in equity must come with clean hands.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 855; Dec. Dig. § 451.]
    Appeal from District Court, Galveston County; Robert G. Street, Judge.
    Trespass to try title by J. T. Gibbons against J. H. Ross and others. From an order of the district court refusing plaintiff’s prayer for a temporary injunction, plaintiff appeals.
    Reversed on rehearing, and judgment granting injunction rendered.
    Hutcheson & Hutcheson, of Houston, for appellant. Maco & Minor Stewart, of Galveston, for appellees.

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

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

   PHEASANTS, C. J.

This appeal is from an order of the district court of Galveston county refusing appellant’s prayer for a temporary injunction in a suit of trespass to try title and to remove cloud from title brought by appellant against the appellees. The land involved in the suit is described in the petition as a tract of “32 acres more or less, known and designated as lot 23 in subdivision C of the S. F. Austin and M. Mul-doon'grants of land in Galveston 'county, Texas, according to plat prepared by R. W. Lutterell for J. C. League in December, 1893.” The defendants in the suit are J. H. Ross, Ira Bratton, and R. McGregor. In addition to the usual allegations in a suit of trespass to try title, the petition specially alleges facts relied on by plaintiff to show that the title asserted by defendants, who claim under a common source, is invalid; the facts so alleged being sufficient to defeat defendants’ claim of title. The allegations of the petition, upon which the temporary injunction is sought, and the prayer for injunction are as follows:

“Plaintiff further represents to the court: That on or about the 5th day of August, 1913, the defendant J. H. Ross filed suit in forcible entry and detainer in the justice court of Galveston county, precinct No. 6, cause No. 198, on the docket of said court, wherein he complained against A. A. Kresse", of Galveston county, Tex., and sought possession of the aforesaid tract of 32 acres. That the defendant in that suit is, and was at the time of the institution of said suit for forcible entry and detainer, the tenant of this plaintiff under a lease contract of date July 15, 1913, said lease embracing the 32-acre tract herein sued for, and being for a period of 2 years from said date, and that during the pendency of said suit another suit of forcible entry and detainer involving the above property was filed against the said A. A. Kresse, tenant of the defendant, by Ira Bratton, as tenant of the defendant J. H. Ross, said suit being filed in the justice court of Galveston county, precinct No. 6, on or about the 1st day of October, 1913, and being cause No. 201 on the docket of said court. That the suit last mentioned was tried in the justice court, and from there appealed to the county court of Galveston county, Tex., and that judgment was rendered in said suit against the said A. A. Kresse, and in favor of the said Ira Bratton, for the possession of the 32-acre tract herein sued for, and that no appeal lies from said judgment of the county court by reason of the statutes of this state governing the remedy of forcible entry; and detainer, and that the said Ira Bratton is about to secure the issuance of a writ of restitution in said cause to dispossess the said A. A. Kresse, tenant of this plaintiff, and this plaintiff now states to the court that he has good record title to said entire 32-acre tract and is. the lawful owner thereof, and that none of the defendants have any title or right of possession whatever thereto, so that plaintiff’s tenant is legally entitled to the possession thereof, but that, under the law of forcible entry and detainer, this plaintiff’s title cannot be introduced in evidence for the purpose of showing the right of said A. A. Kresse to possession, and this plaintiff cannot intervene in such suits and assert his title, so this plaintiff is without remedy in the event his tenant be dispossessed therefrom, and his tenant would have a right of' action against him for damages if so dispossessed, and the said J. I-I. Ross and Ira Brat-ton are insolvent, and could not respond to this plaintiff in damages, although the said A. A.. Kresse has taken possession of the said 32-acre tract under his lease with this plaintiff, and has constructed on said tract valuable improvements, including two silos for the storing of grain and other products, and is now engaged in the business of running a dairy on said premises, and in the cultivation and use of same for agricultural purposes, especially in the growing crops for sale on the market, as well as for the use of his family and his business. That, should the said Kresse be dispossessed at this time, he would be deprived of the opportunity of running his dairy business and growing his crops before this plaintiff could recover the possession of said land in this proceeding of trespass to try title, and that this is the season of the year in which it is necessary to plow the ground and make same ready for the growing crops, all of which plaintiff’s tenant would be unable to do, were he now dispossessed, so that plaintiff’s tenant would suffer irreparable injury, as would this plaintiff himself, should said writ of restitution issue under the judgment in said action of forcible entry and detainer, and same therefore should not issue, and plaintiff now calls upon the equity jurisdiction oí this court for the issuance of an injunction restraining the said Ira Bratton and those under whom he claims from procuring or directing the issuance of a writ of restitution in said cause.
“Plaintiff further represents to the court: That the said Ira Bratton is now occupying a house located on the said 32-acre tract, and is asserting some sort of claim to 5 acres immediately surrounding said house, and is thereby interfering with the possession and use of plaintiff’s tenant, and that he will continue to do so unless he be enjoined therefrom by order of this honorable court. That, because of the occupancy of said house by the said Bratton, plaintiff’s tenant has been compelled to occupy and live in the upper story of the barn which shelters his dairy cows, and that plaintiff is unable to deliver to him the complete possession which he agreed to do under his contract, and will be unable to do so as long as the said Bratton continues to occupy the house and five acres surrounding same, but that plaintiff has no other remedy than to appeal to the equity jurisdiction of this honorable court to issue an injunction, directing the said Ira Bratton to cease the occupancy and use of said house, and its adjoining premises, and to in no way interfere further with the possession and use of the said A. A. Kresse to said entire 32-acre tract of land because, as hereinbefore set out, plaintiff had no right to set up his title in the suit of forcible entry and detainer brought by the said Bratton against the said Kresse, and so defeat the wrongful possession of the said Bratton.
“Wherefore plaintiff prays the court that an injunction issue forthwith against the said Ira Bratton, and those under whom he claims, enjoining them from procuring and directing the issuance of a writ of restitution under the judgment in said case of forcible entry and detainer, styled Ira Bratton v. A. A. Kresse, until this ease is fully determined, directing the said Ira Bratton to cease occupancy of the premises embraced within said 32-acre tract now occupied and used by him, and that he in no manner interfere with the possession and use of the said 32-acre tract by the said A. A. Kresse.”

This petition, which was sworn to by plaintiff, was presented to Hon. K. G. Street, judge of the district court of Galveston, on February 2, 1914. Upon consideration of the petition- the judge granted a temporary restraining order enjoining the defendants from in any way disturbing or interfering with plaintiff’s possession of the premises pending a hearing of the application for temporary injunction, which hearing was set for February 9, 1914.

On the day set for the hearing, the defendants appeared and filed answer containing general and special exceptions to plaintiff’s petition, and special denials of most of the material allegations of the petition. They claim that the title to the land is in the defendant Boss, and specially deny under oath that plaintiff was in possession thereof and was ejected by defendants on July 1, 1913, as alleged in his petition. They aver in substance that defendant Ira Bratton was in possession of the land, holding same under a lease from the owner thereof, and, while so holding, plaintiff’s tenant Kresse forcibly entered upon and took possession of a portion of said land; that said Bratton instituted a suit of forcible entry and detainer against Kresse and obtained judgment thereon, as alleged in plaintiff’s petition. They specially deny that the said Bratton or the defendant Boss is insolvent, as alleged by plaintiff, and aver that Bratton is now the tenant of de- ' fendant Ross, who is the owner of said premises.

The application was heard upon the petition and answer and supporting affidavits introduced in evidence. Upon the hearing the court refused to grant plaintiff’s application for temporary injunction, and dissolved the temporary restraining order theretofore granted. From this order plaintiff appealed to this court.

Upon application of plaintiff, after the jurisdiction of this court over the case had attached by reason of the appeal, we granted a temporary, restraining order enjoining defendants from enforcing the forcible entry and detainer judgment pending the disposition of the appeal, but provided in said order that defendants would be granted a hearing on February 19, 1914, to show cause why the restraining order should not be continued in force until the final disposition of the appeal. On the day named the parties appeared by attorney; and, a motion to advance the hearing of the appeal having been filed in the meantime, it was agreed that hearing on appeal be set for February 26th, and the question of the power of this court to grant the temporary restraining order be submitted and heard with the appeal. No briefs have been filed by either party.

On submission of the cause upon oral argument, appellees’ counsel raised no question as to the power of jurisdiction of this court to grant the temporary restraining order.

While our Courts of Civil Appeals have no original jurisdiction to grant an injunction, whenever, in order to protect or enforce the jurisdiction of the court, it is necessary to preserve the status quo of the parties in their relation to the subject-matter of the appeal, such courts have jurisdiction to grant an injunction for that purpose. Hubbart v. Bank, 55 Tex. Civ. App. 504, 119 S. W. 712; Railway Co. v. Hornberger, 141 S. W. 311; High on Injunctions (1st Ed.) § 893. We think the issuance of the temporary restraining order was a proper exércise of the jurisdiction of this court.

After fully considering the record and the authorities presented by -appellant, we have reached the conclusion that the trial court did not err in refusing to grant appellant’s prayer for a temporary injunction.

Appellant cites the cases of Texas Land Co. v. Turman, 53 Tex. 619, Johnson v. Railway Co., 141 U. S. 602, 12 Sup. Ct. 124, 35 L. Ed. 875, Summer v. Crawford, 91 Tex. 129, 41 S. W. 994, and Chancey v. Allison, 48 Tex. Civ. App. 441, 107 S. W. 605, in support of his contention that the facts established on the hearing required the trial judge to grant the injunction.

The facts of this case distinguish it from each of the cases cited. The Turman Case goes no further than to hold that one who had purchased at execution sale the title of the owner to real estate pending a suit of forcible entry and detainer brought by the owner against his tenant could, the tenant having attorned to the purchaser, protect the possession of the tenant by injunction until the question of title, which could not have been adjudicated in the forcible entry and de-tainer proceedings, could be determined. But the right to injunction recognized in that case was based upon allegations of the insolvency of the defendant. The substance of the holding is thus stated in the opinion: “Under the authority of the principles announced in these decisions, if the Texas Land Company purchased the title of Tur-man to the rented premises under execution against him pending the lease to Wilson, it is not perceived why the company, particularly if they could not intervene in the suit of forcible detainer, should not, by injunction in the district court, stay the proceedings before the justice of the peace until the question of title could be determined; it having been alleged that Turman was insolvent and could not respond in damages.” The trial court in that case dissolved the temporary injunction upon the coming in of the answer denying under oath the allegations of the petition, and this ruling was affirmed by the Supreme Court

In the Johnson Case the suit was brought by the railway company against the defendant Johnson to restrain him from attempting to take possession of a portion of plaintiff’s railroad under a writ of restitution issued in a suit of forcible entry and de-tainer brought by Johnson against the railway company. The facts in the case were that Johnson had constructed a portion of the railroad under a contract with the railway company, by which He was entitled to hold possession of the railroad so constructed by him until he was paid the contract price for such construction. The company failed to pay him for the construction of the road according to its contract, and after the road was finished took forcible possession thereof and began to operate its trains thereon. Thereupon Johnson brought an action of forcible detainer to regain possession of the road. Pending the trial of this case Johnson and the railway company agreed in writing on the amount due him by the company, but the amount was not paid by the company, and Johnson prosecuted his forcible detainer suit to judgment, and was about to procure the issuance of a writ of restitution thereon. The plaintiff railway company then brought suit for injunction and tendered into court the full amount due Johnson according to the agreement before mentioned, with interest thereon. The trial court adjudged that, upon the payment by plaintiff of an additional sum of $1,000 to cover expenses incurred by Johnsoh in preparing to take possession of the road and the payment of all cost of the forcible detainer proceedings, Johnson should be perpetually enjoined from executing the judgment in his favor for the possession of the road. This judgment was affirmed by the Supreme Court on the ground that Johnson’s right to the possession of the road was only for the purpose of securing the amount due him for constructing it; and this amount, as fixed by the agreement of the parties, being tendered by plaintiff and awarded him by the judgment, together with the costs and expenses incurred by him in the proceedings in the forcible detainer, he had no right to the possession of the road, and therefore should not be allowed to enforce the judgment in the forcible detainer suit. The judgment appealed from in that case was a judgment upon final hearing, and finally disposed of all the issues between the parties. We think it clear that this decision is not authority for the issuance of a preliminary injunction in the present case.

The injunction in the Ohancey-Allison Case was granted to protect the property in controversy from injury and waste caused by the acts of the defendant. We think the difference between that case and the case presented by this record is clear. While the plaintiff in the Chaneey Case obtained his possession by entering upon the premises and breaking the lock to the house situate thereon, the premises were in fact unoccupied at • the time he entered. If, however, the manner of his entry be regarded as a forcible invasion of defendant’s prior possession, that fact would not deprive the plaintiff, who showed a prima facie title and claimed to be the owner, of the right to protect the property from the wrongful acts of the defendant in cutting the fences thereon and thereby injuring and causing waste to said property.

The evidence in this case is sufficient to sustain the finding that appellant’s tenant Kresse, with the knowledge and consent of appellant, forcibly invaded the possession of defendant Bratton, who was holding under a lease from his codefendants, who claimed to be the owners of the property. To regain the possession thus forcibly wrested from him, Bratton did not pursue the course followed by Chaneey, in the case above cited, and commit or threaten any act of violence, but appealed to a court of law and obtained a judgment restoring to him the possession of which he had been forcibly deprived. The validity of this judgment is not questioned. | In these circumstances appellee’s right to enforce this judgment of restitution should not be prevented by the issuance of a preliminary injunction, in the absence of a showing that the enforcement of the judgment would work irreparable injury to appellant, or at least greater injury to him than defendants would suffer by being restrained from enforcing said judgment. This rule of “balance of convenience” is thus stated by Mr. High in his work on Injunctions (2d Ed.) par. 13: “Where the legal right is not sufficiently clear to enable a court of equity to form an opinion, it will generally be governed in deciding an application for a preliminary injunction by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding the writ. And where, upon balancing each consideration, it is apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted. But where, upon the other hand, it appears that greater danger is likely to result from granting than from withholding the relief, or where the inconvenience seems to be equally divided as between the parties, the injunction will be refused and the parties left as they are until the legal right can be determined at law. Where a clear case of irreparable injury is shown as likely to result to complainant unless the injunction is granted, and it does not appear that the issuing of the writ will work any such injury to defendants, the relief will be granted.”

The allegation of insolvency of the defendants was expressly denied by the defendants, and the trial court, upon the showing made, was fully justified in finding against said allegation. This being the fact, it might work as great an injury to defendants to deny them the right to enforce their legal remedy to regain possession of property, which had been forcibly taken from them by the plaintiff, as the withholding of the injunction would cause plaintiff, and in these circumstances, under the rule above stated, the injunction should be denied.

It may be conceded that our injunction statute has liberalized the rule of equity that forbids the issuance of an injunction in any ease in which the applicant therefor has an adequate remedy at law, and as said by our Supreme Court in the case of Summer v. Crawford, supra: ■ “In courts administering both law and equity, * * * the rules denying an injunction, when there is a remedy at law, should not be applied as rigidly as at common law, where the issuance of the writ in equity was, to a certain extent, an invasion of the jurisdiction of another tribunal.” But the issuance of a preliminary injunction is an equitable, as distinguished from a legal, remedy, and such writ should not be issued unless, in the opinion of the chancellor, more injury would likely result from refusing than from granting the writ. It follows from these conclusions that the judgment of the court below should be affirmed ; and it has been so ordered.

Affirmed.

On Motion for Rehearing.

Upon a re-examination of the affidavits contained in the record, we have reached the conclusion that we erred in our former opinion herein in holding that the evidence sustained the finding that appellee Ira Bratton, in whose favor'the judgment in the suit of forcible entry and detainer was rendered, and who alone can procure the enforcement of said judgment and could be held responsible for the damages plaintiff would suffer thereby, is solvent in the sense that he could be made to respond to the damages plaintiff would likely suffer by the enforcement of said judgment. The affidavits as to his solvency only show that his “Det worth”.is $300. Giving the fullest effect to these affidavits, they only justify the conclusion that he has property over and above his indebtedness of the value of $300. It is not shown of what the property consists, nor whether it is exempt from forced sale.

The verified petition shows that the rental value of the premises is $500 per year, and if, as a matter of fact, defendant Bratton has property subject to execution of the value of $300 plaintiff, pending a final trial of his suit, which ,in all reasonable probability could not be had within a year, would, if he established his title to the property, lose at least a considerable portion of the rents due therefor. On the other hand, by .requiring plaintiff to give a bond in the sum of $1,000, the defendant Bratton can be protected from any loss that he is likely to sustain by an injunction restraining the execution of the judgment in the forcible entry and detainer suit. Such being the facts under the rule of “balance of convenience” followed in our former opinion, plaintiff is entitled to have the enforcement by said defendant of a writ of restitution in the forcible entry and de-tainer suit enjoined pending an adjudication of the question of title, unless the fact that plaintiff wrongfully entered upon the premises, which at the time of such entry was in the possession of defendant Bratton, will deny him the right to the equitable remedy of injunction.

We do not think the equitable rule that “he who seeks equity must come'with clean hands” requires that, in every case in which a plaintiff has been guilty of wrong, he must be denied any protection by a court of equity. It seems to us that the modern rule of “balance of convenience” stated in our former opinion, and which has been recognized and enforced by the higher courts of this state in injunction proceedings, when in a particular case it conflicts with the rule first stated, .should be followed rather than the rule which denies any protection to one who has himself done wrong. This is evidently the spirit of the rule of “balance of convenience” and is more in harmony with the ever-widening principles of equity jurisprudence. We think the cases cited and discussed in our former opinion support this application of the rule to the facts of the instant case.

It follows from these conclusions that the motion for rehearing should be granted, and our former judgment herein set aside; and it has been so ordered. It is further ordered that the judgment of the court below, denying appellant an injunction against appel-lee Bratton, be reversed, and judgment here rendered; that upon appellant’s giving a bond in the sum of $1,000, payable and conditioned as required by law and approved by the clerk of the trial court, a writ of injunction shall issue from said court restraining appellee Ira Bratton from enforcing or attempting to enforce, pending the final trial of this suit, the judgment in the forcible entry and detainer suit described in plaintiff’s petition. That portion of the judgment refusing a mandatory injuriction ousting ap-pellee Bratton from that portion of the premises in controversy now occupied by him is affirmed.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    COFFMAN v. MARTIN.
    (No. 7140.)
    (Court of Civil Appeals of Texas. Dallas.
    May 9, 1914.)
    Injunction (§ 9) — 1Trespassing Fowls.
    An injunction to restrain a person from allowing his chickens and turkeys to run at large will not issue, in absence of a statute prohibiting fowls from running at large.
    [Ed. Note — For other cases, see Injunction, Cent. Dig. § 8; Dec. Dig. § 9.]
    Appeal from District Court, Collin County; F. E. Wilcox, Special Judge.
    Action by G. C. Coffman against Gene Martin. From a judgment granting insufficient relief, plaintiff appeals.
    Affirmed.
    R. C. Merritt and H. C. Miller, both of McKinney, for appellant. Doyle & Brown, of McKinney, for appellee.

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

   RAINEY, C. J.

Appellant and appellee owned adjoining premises in the edge of the town of McKinney. Coffman was growing alfalfa and Martin was raising chickens and turkeys for profit. Martin allowed his chickens and turkeys to trespass upon the premises of Coffman and injured his growing crop of alfalfa. Coffman brought suit for an injunction and for damages against Martin to restrain him from allowing his fowls from trespassing and injuring Coffman’s alfalfa. A temporary writ of injunction was granted, but upon hearing it was dissolved, and judgment rendered against Coffman that he take nothing by his suit, from' which he has appealed.

The only issue presented is whether or not plaintiff was entitled to an injunction to restrain defendant from allowing his chickens and turkeys to run at large. The question is one of first impression in this state. The reason, we suppose, is that such fowls from time immemorial have been permitted to run at large in this state, and no recent law to prevent their running at large has been made. However such custom may have been annoying in some instances by chickens of one neighbor trespassing upon the premises of another, it has never reached such magnitude as to demand the attention of the Legislature, which only has the right to pass laws in relation thereto. It has seen proper to pass laws regulating the running at large of domestic animals, but it has never seen proper to include fowls in its enactment.

Before the Legislature regulated the running at large of domestic animals, our Supreme Court ruled that there was nothing in the law of this state to prohibit such animals from running at large, and we do not understand why such holding should not apply to domestic fowls. Investment & Agency Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 22 L. R. A. 105; Wilson v. Caffall, 83 S. W. 726; Kimple v. Schafer (Iowa) 143 N. W. 505. There was no lawful fence around appellant’s premises. Investment Co. v. McClelland, supra, was a case where cattle were running at large. Justice Gaines said: “It is the right of every owner of domestic animals in this state, not known to be diseased, vicious, or ‘breaehy,’ to allow them to run at large, and this without reference to the size or class of such animals kept by others in the same neighborhood.”

As to the question of damage, there was no proof of value; and the judgment is affirmed.


author: FLY, C. J.

text:
    VINEYARD et al. v. HEARD et al.

    (No. 5239.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 8, 1914.
    On Motion for Rehearing, May 13, 1914.)
    1. Executors and Administbators (§ 360) —Sale by Administrator — Postponement oe Sale.
    Under Acts 12th Leg. c. 81, § 250, providing that if the administrator shall fail to sell realty, ordered to be sold, at the time specified in the order, he shall report the facts to the court -or judge, who may appoint another day for the sale, and so on from time to time, until the property is sold, an order postponing an administrator’s sale was valid though made in vacation.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1481-1483; Dec. Dig. § 360.]
    2. Deeds (§ 13) — Grantee.
    The grantees in a deed must be in existence when it is. executed, but a deed to the heirs of a dead person is valid if the grantees can lie identified, though a deed to the heirs of a living person, without specifying their names, is invalid, especially where the heirs are yet unborn.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 21, 22; Dec. Dig. § 13.]
    3. Deeds (§ 105) — Grantees.
    Since the grantees under a deed _must be in existence at the time it is executed, under a deed to grantor’s son and to the heirs of grantor and his wife, the son would take all of the land conveyed if grantor then had no other children.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 278-291, 372-374; Dec. Dig. § 105.]
    4. Deeds (§ 143) — Reservations.
    A provision in a deed to grantor’s son, reserving to grantor the right to control the land as “guardian of said estate for the benefit” of his son, gave grantor no more rights over the property than he had as the natural guardian of his son, and the fee-simple title passed to the son free from any trust.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 453 — 455, 465-468; Dec. Dig. § 143.]
    5. Judgment (§ 707) — Persons Bound.
    Minors interested in the land, who were not parties to a partition proceeding, were not bound by the decree.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 707.]
    6. Guardian and Ward (§ 4) — Rights of Parent-Disposition oe Property.
    A parent cannot appoint himself the guardian of his minor child’s estate and dispose of the property without the sanction of a court; his guardianship by nature not giving him such power.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 4, 5;- Dec. Dig. § 4.]
    7. Partition (§ 46) — Parties.
    All persons interested in the estate must be parties to a partition suit.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. § 46.]
    8. Guardian and Ward (§ 103) — Sale op Ward’s Lands — Confirmation.
    Where a father sold land which he had previously conveyed to his son, he cannot validate the sale by six years later applying for guardianship on the son’s estate and for confirmation of the sale as an act of guardianship; there being no order of sale made.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 378-381, 391; Dec. Dig. § 103.]
    9. Judgment (§ 472) — Collateral Attack.
    A judgment of the Court of Civil Appeals as to which the Supreme Court denied a writ of error cannot be impeached collaterally.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 908; Dec. Dig. § 472.]
    10. Executors and Administrators (§ 388) —Conveyance op Land.
    A sale of land by an administrator of a wife, who was also executor o'f the husband, was valid, and conveyed the interest of both the husband and wife, where part of the money received from the sale was used in paying community debts and the children accepted the proceeds of the property.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582; Dec. Dig. § 388.]
    11. Executors and Administrators (§ 376) —Sale op Land — Validity—Estoppel to Deny.
    Pleirs who received the full benefit of the proceeds of a sale of property by an administrator are estopped to deny the validity of the sale.
    [Ed. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 1539-1542; Dec. Dig. § 376.]
    12. Husband and Wipe (§ 81) — Married Women — Contract.
    A married woman would not be bound by covenants of warranty contained in a deed by her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 331-335; Dec. Dig. § 81.]
    On Motion for Rehearing.
    13. Judgment (§ 710) — Persons Bound.
    A subsequent judgment, involving the same land as that affected by a prior judgment in favor of one who was not "a party to the action in which the subsequent judgment was rendered, would not affect such person or the prior judgment in her favor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 710.]
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Action by Lillian Vineyard and others against Fannie W. Heard and others, in which Anna W. Vineyard and another inter-yened and adopted plaintiffs’ pleadings. From a judgment as stated, plaintiffs appeal.
    Reversed in part and rendered for plaintiffs and affirmed in other respects.
    Fiset, McClendon & Shelley, of Austin, for appellants. E. A. Stevens, of Roekport, and Wilson, Dabney & King, of Houston, for ap-pellees.

       Application for writ of error pending in Supreme Court.

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

   FLY, C. J.

This is an action of trespass to try title, instituted by Lillian Vineyard, J. M. Thornton, Mattie B. Iglehart and husband, and K. J. Edwards, against Fannie W. Heard and husband, W. J. J. Heard, and Rob Johnson, the land being a portion of what is known as “Lamar Peninsula.” An amendment was filed by which J. M. Brundrett was made a party defendant, and judgment of partition prayed for as against him. Heard and Johnson answered by general and special exceptions, pleaded not guilty, and answered that since the suit was instituted Lillian Vineyard had executed a deed to her mother, Anna W. Vineyard, and her brother S. H. Vineyard, conveying to them all her interest in the land sued for. Anna W. Vineyard and S. H. Vineyard intervened in the suit, adopting as their own the pleadings filed by the plaintiffs. Brundrett answered his general denial and a special plea that the land in question, so far as it included lands set apart to James B. Wells, Sr., in a partition of the Lamar tract, was acquired by him with the community funds of himself and deceased wife, and that her children had an interest therein, and he prayed that they be made parties to the suit. The children intervened, setting up their interest in the land. James B. Wells filed a plea, claiming an interest in the land through purchase by himself and W. J. J. Heard of the interest of Mrs. Hynes, a daughter of Hannah Brundrett, deceased. Plaintiffs and Anna W. and S. H. Vineyard filed a supplemental petition in which it was alleged that, if the heirs of Hannah Brun-drett ever had any interest in the land it was only an equitable one, and had been lost by laches; that the same had been recovered and held in trust for them by J. M. Brundrett through a judgment rendered in his favor for 13/24 of the land in a cause styled Lillian Vineyard v. J. M. Brundrett, and if said heirs of Mrs. Brundrett have any interest, it should be taken out of the land acquired by J. M. Brundrett in said suit. The cause was tried by the court, without a jury, and judgment was rendered that the plaintiffs and interveners, A. W. and S. H. Vineyard, recover an 11/24 interest in certain lands, as to which parties had filed disclaimers, and that they take nothing as against any of the other parties, but the lands claimed by the parties who did not disclaim were allotted to them as follows: To Mrs. Fannie W. Heard 11/24, to John M. Brundrett 13/24, and to James B. Wells and W. J. J. Heard Mrs. Hynes’ interest, being 1/16 of 13/24 of the land allotted to the heirs of Mrs. Brundrett. The judgment was amended so as to specify that J. M. Brundrett should receive one-half of the 13/24 set apart to him in the original judgment, and that each of the heirs of Hannah Brundrett should receive 1/16 of the 13/24 of the land. The cause was held upon the docket for the purpose of making partition of all the lands described in the judgment.

The Lamar Peninsula is a famous tract of land, and has been the cause of much liti- ' gious strife. Vineyard v. O’Connor, 90 Tex. 59, 36 S. W. 424; O'Connor v. Vineyard, 91 Tex. 488, 44 S. W. 485; Vineyard v. Brundrett, 17 Tex. Civ. App. 147, 42 S. W. 232. J. W. Byrne, the grandfather of Anna W. Vineyard, is the common source of title, having at one time owned the whole of the peninsula. He conveyed an undivided one-half interest in the land to William G. Hale and Ebenezer Allen, and it was agreed by the parties that at the time of his death J. W. Byrne owned 27/144, Allen & Hale, 27/144, Samuel Colt, or his heirs, 78/144 and E. Williams, 12/144; that all the interest of Allen passed from Mrs. Josephine H. Allen to James B. Wells, deceased, on December 12, 1873; that the interest of E. Williams passed to Marey and Huntington, the latter being a party to a suit for partition in the district court of Aransas county, Tex., styled Hale et al. v. Vineyard et al.; that the heirs of Hale were parties to that suit, and that the deed from Eliza Colt et al. to Allen, Hale & Vineyard, on August 8, 1870, passed to them all the right, title, and interest which Samuel Colt, formerly of Hartford, Conn., had in and to the property described in the deed. J. W. Byrne died prior to May, 1862, and left a will. That will was probated in October, 1862, in which Ann Willie Byrne and her mother, Ann E. Byrne, were made the residuary legatees and devisees, and Mrs J. P. O’Connor and Mrs. Ann E. Byrne were made executrices. Mrs. Byrne refused to qualify and Mrs. O’Connor was appointed executrix. The following items appeared in the appraisement of the estate: “2/8 Lamar property, undivided share of about 12,000 acres of land, 81,500.00. About 4/8 of ILamar property sold to Colt for $18,000.00, but not paid, and of which 4/8 Capt. Byrne claims 3/8 thereof, $2,250.00.”

The Byrne estate was partially administered by Mrs. O’Connor, and in 1867 she was removed, and J. W. Vineyard was appointed and qualified as administrator de bonis non. Afterwards he was regularly authorized to sell “3,375 acres of the Lamar property, undivided, more or less, originally in the name of Isaac E. Robertson, M. Hunt, Wm. Lewis and James W. Byrne, the whole said to be 13,500 acres and held in common with Wm. G. Hale and Ebenezer Allen and including all unsold town lots in the town of Lamar in Refugio county. An interest of 3/8 in a contract of sale with Col. Samuel Colt, amounting to about 2,53114 acres of land, more or less, and claim against heirs for $6,750.00 resulting therefrom, being for half of the unsold property in the town of Lamar, the said claim held in common with W. G. Hale and Ebenezer Allen, belonging to said estate.” The sale was reported as made to S. C. Vineyard and confirmed on May 28, 1872. The estate was closed in 1877.

S. C. Vineyard executed the following deed:

“The State of Texas, County of Aransas. Know all men by these presents that I, Samuel C. Vineyard of the state of Texas and county of Aransas, for the sum of $1.00 (and out of affection) for my son, Samuel Harvey Vineyard, do hereby grant, release and convey, to have and to hold forever, all my right, title and interest in the estate of James W. Byrne, purchased by me at administrator’s sale in behalf of my son, Samuel Harvey Vineyard and heirs of S. C. Vineyard and Anna W. Vineyard. Hereby reserving the right to control as guardian said estate for the benefit of S'. H. Vineyard and heirs of S. C. Vineyard and Anna W. Vineyard. And I, the said Samuel C. Vineyard, for and in consideration of the sum of $1.00 to me in hand paid, do hereby bind myself, by these presents to warrant, defend and protect unto the said Samuel H. Vineyard and heirs of S. C. Vineyard, all the possessions hereunto conveyed this 8th day of October 1873, A. D. In testimony whereof I have hereunto signed my name and affixed my scrawl for seal, on this 8th day of October A. D. 1873. S. C. Vineyard. Witness: Eustace Hatch.” The validity of that deed was sustained by the Supreme Court. Vineyard v. O’Connor, 90 Tex. 59, 36 S. W. 424. On November 23, 1888, Harvey S. Vineyard conveyed to his sister, Lillian Vineyard, all the property conveyed to him in the foregoing deed by his father.

In 1893 a contract was made between Maddox Bros. & Anderson and Samuel H. Vineyard, Alex T. Vineyard and Lillian Vineyard, minors, acting through their parents, S. 0. and Anna W. O. Vineyard the duly appointed guardians of their persons and estates by which one-half of certain tracts of land in Aransas and many other counties claimed by said minors were contracted to be conveyed to the parties first named, in consideration that the lands should be recovered from adverse claimants. That contract was approved by the county court.

In 1876 W. G. Hale instituted a suit in the district court of Aransas county against S. C. Vineyard and Anna W. Vineyard for partition of about 12,500 acres of land, the land in controversy included, out of the Lamar Peninsula, and James B. Wells, Sr., having acquired all the Allen interest in the land, he was made a party to the partition suit. Hale died during the pendency of the suit, and his widow and those representing his interests were made parties, as well as Huntington and Marey, who owned Williams’ interest. At that time S. O. and Anna W. Vineyard and their minor child or children owned 39/144 acquired from the Colt heirs and 27/144 conveyed by the administrator of the Byrne estate to S. O. Vineyard and by him conveyed to Samuel Harvey Vineyard, the whole amounting to 11/24. James B. Wells, Sr., owned the Allen interest, 11/48, Marcy 1/24, Huntington 1/24, and the Hale heirs owned 11/48 of the land. The deed made by S. O. Vineyard to Samuel Harvey Vineyard was on record at the time the partition was instituted. Immediately after the partition of the land was made S. O. Vineyard made powers of attorney to his wife, who by virtue thereof and for herself conveyed to John W. Herring over 4,200 acres of the land acquired in the partition. About five years after such conveyance was made to Herring, S. O. Vineyard and wife applied to the county court of San Patricio county, where they resided, for the guardianship of the estates of their three children, in which proceeding they represented that the proceeds of the sale to Herring belonged to the three children, and they afterwards filed an account showing the disposition of such proceeds for the benefit of their children. In 1883 the parents applied for a confirmation of the sale of the land to Herring, the sale having been made to Herring in 1877. There was no order of sale, but six years after the sale was made, and by persons then not guardians, it was. confirmed by the court, and they made another deed to Herring.

The deed of S. O. Vineyard to his son, Samuel Harvey Vineyard, of date October 8, 1873, was held by the Supreme Court to be a valid instrument. The court said: “The whole instrument is consistent with the theory that Samuel Harvey Vineyard was intended to be a grantee therein, and no other possible construction can reconcile its peculiar provisions. We, therefore, conclude that the instrument in question was a valid conveyance, and that it passed to him the legal title in the land.” Vineyard v. O’Connor, 90 Tex. 59, 36 S. W. 424. In the deed in question S. C. Vineyard sought to convey to his son all the right, title, and interest that he had in the estate of James W. Byrne, but the Supreme Court held in the case of O’Connor v. S. C. & Anna Vineyard, 91 Tex. 488, 44 S. W. 485, that a deed made on August 8, 1870, by the heirs of Samuel Colt to William G. Hale and Ebenezer Allen, each one-fourth of their interest in the Lamar Peninsula, and to Anna W. Vineyard one-half of such interest, conveyed to said Anna W. the title to said land, and that her interest in the land passed by her deed for herself and as attorney in fact for S. C. Vineyard to John C. Herring. That opinion effectually disposes of any claim that appellants could have to that part of the land conveyed to Anna W. Vineyard by the Colt heirs. The court held: “In our judgment, however, it would make no difference in the result if this were true, because the deed executed by Anna W. Vineyard for herself and as attorney in fact for S. C. Vineyard, on June 12, 1877, by which they conveyed the land in question to John C. Herring, had the effect to convey all the right, title, and claim of S. C. Vineyard and of Anna W. Vineyard in the land, whether it was the separate property of either, or was the community property of both. It follows that no title remained in S. C. and Anna W. Vineyard to be conveyed by the deed made by them to the minor plaintiff in 1896. * * * ”

The sale by the administrator of the Byrne estate to S. C. Vineyard of the interest of that estate in the Lamar Peninsula was legal and valid. The order postponing the sale, dated August 2,1871, although made in vacation, was valid and binding. In section 250 of the act of 1870, at' page 176, in regard to estates of decedents it is provided: “If, from any cause, the executor or administrator should fail to sell any real property ordered to be sold at the time specified in the order, -he shall report the facts to the court or judge, accompanied by his affidavit of the truth thereof, and the .court or judge may appoint another day for such sale, and so on, from time to time, until the property is disposed of.” The proceedings in the probate court were strictly in compliance with that law.

While it was not necessary to the decision of that case the Supreme Court has indicated in its opinion in Vineyard v. O’Connor, 90 Tex. 59, 36 S. W. 424, that the title to all the interest of the Byrne estate in the Lamar land was conveyed by the deed of S. C. Vineyard to Samuel Harvey Vineyard, as,indicated by the expression that the deed “passed to him the legal title.” That language is quite persuasive and accords with the view of this court.

It is a well-established rule that a deed can be made only to grantees in existence or life, at tbe time of the execution of the deed. A deed made to the heirs of a dead person is valid, if it can be shown who was intended, but a deed to the' heirs of a living person without specifying their names is held to be void, and this would be especially true where the heirs of the living were yet unborn. In a Missouri ease, where a conveyance was made to a woman and her children, it was held that the deed would be valid as to the woman and the children in esse. Dev. Deeds, § 184; Hamilton v. Pitcher, 53 Mo. 334. And in several Illinois cases it has been held that a deed to a grantee in esse and his unborn brothers and sisters conveys title only to the living grantee, and that while an unborn child may inherit property by descent or take by devise upon coming into being, yet it cannot take a present grant of lands by deed, although in ventre sa mere when the deed was executed. Faloon v. Simhauser, 130 Ill. 649, 22 N. E. 835; Morris v. Caudle, 178 Ill. 9, 52 N. E. 1036, 44 L. R. A. 489, 69 Am. St. Rep. 282; Miller v. McAlister, 197 Ill. 72, 64 N. E. 254. To the same effect is the very unsatisfactory opinion in Bailey v. Willis, 56 Tex. 212. The rule is thus laid down in 3 Washburn, Real Property, p. 239, old page 566: “There must be a person in esse to give as well as receive a conveyance in order to make a deed of an immediate estate by or to such person good. And if there be any reasonable doubt of such person being in esse at the time of the delivery of the deed, it must be affirmatively shown that he was so in order to give deed validity.” No other child of S. C. and Anna W. Vineyard was in existence when the deed by S. C. Vineyard was executed except Samuel Harvey, and consequently all land- conveyed by the deed went to him. It vested the title in him, and that title could not be divested out of-him except by a deed executed by him or his legal representative, or by the judgment of a court having jurisdiction. The provision in the deed to the effect that S. C. Vineyard reserved the right to control the land “as guardian of said estate for the benefit of S. H. Vineyard” gave him no more rights over £|ie property than he had as natural guardian. It created no trust, but the property passed in absolute fee simple to S. H. Vineyard.

In the case of O’Connor v. Vineyard, 43 S. W. 55, the Court of Civil Appeals of the First District, construing the language of this deed, held: “Whatever this right may have amounted to, it was clearly not that of a power to sell. -It was ‘to control as guardian,’ and may have amounted to nothing, since he was the natural guardian, and was entitled to the legal guardianship. A guardian in control of his ward’s estate has no power to sell it without authority from court. The deed from S. C. Vineyard to Herring for the land in controversy was without any order of the court, and was executed long before there was any guardianship pending. In the conveyance of the land Vineyard dealt with it as his own. His deed was not operative to convey any interest in the land be: longing to Samuel Harvey Vineyard.” A writ of error was granted in that case, but the Supreme Court expressly declared that there was no error in the decision, except .as to the land conveyed by the Colt heirs to Anna W. Vineyard. The Supreme Court said: “We find no error in the matters complained of in the first five assignments of error embraced in the application of the plaintiff in error, and the said assignments are therefore overruled. The following opinion applies alone to the lands which are claimed through the conveyance from Elizabeth Colt and others, as heirs of Samuel Colt, deceased, to William G. Hale, Sylvina J. Allen, and Anna Willard Vineyard.”

The effect of those two decisions was that the minors, not being parties to the partition proceedings instituted by Hale, are not bound thereby; the proposition that they were so bound seeming so utterly untenable to the Supreme Court that it summarily dismissed the matter by saying: “The plaintiff in error relied upon decrees of partition which embrace the land in controversy, made in the years 1876 and 1877, in suits to which Samuel H. Vineyard and the other heirs of Anna W. and S. C. Vineyard were not parties, and we deem it unnecessary to notice them further.” If the Supreme Court had deemed that the minors were represented by their parents in the partition suit, it would not have been held that they were not parties to the suit.

It is insisted, however, that although S. C. Vineyard may not have had the authority to sell the land of his minor children, he had the authority as their guardian to represent them in the partition of their land. It is assumed, not only that S. C. Vineyard was the guardian of the estate of Samuel Harvey, his minor son, but that he represented him in the partition, neither of which propositions is sustained by the facts. S. C. Vineyard and his wife were sued by Hale in their individual capacity, answered as individuals, and had the land allotted to them as individuals, and then sold it to Herring as individuals. The names of the minors do not occur in the whole partition proceedings. No authority can be produced to the effect that a parent can appoint himself the guardian of the estate of his minor children and dispose of their property without the aid or sanction of a court. The authorities cited by appellees all are cases in which guardians, executors, or administra- • tors have been legally appointed, and not self-constituted. S. C. Vineyard had no representative capacity, and could have no authority to litigate in a capacity in no wise attached to him. The assumption that S. C. Vineyard was the guardian of the estate of Ms minor cMldren is without basis and utterly untenable.

S. O. Vineyard did not bold the relation of guardian towards Ms minor son, except that given by nature, and as such his authority did not extend to the control and management of the property of the child. Railway v. Bradley, 45 Tex. 171. Suing him in Ms individual capacity had no effect upon the rights of the minor. The recital in his deed as to retaining control of the estate did not add anything to Ms rights as natural guardian. He had no power or authority to represent Samuel Harvey in the partition suit, and he assumed no such authority, nor did he claim to be representing the minor in the deed made to Herring. That deed conveyed notMng but the interest owned by Mrs. Vineyard as vendee of the interest of the Colt heirs in the land. The case of Hall v. Unknown Heirs of Reese, 24 Tex. Civ. App. 221, 58 S. W. 974, cited by appellees has no bearing whatever upon the facts of this case. No one appointed S. C. Vineyard guardian of the estate of his children, and if he had been so appointed he at no time agreed to a partition of the estate as did the guardian appointed by Reese in his will. It is stated by appellees that W. G. Hale, who instituted the partition suit, “was a lawyer of extraordinary ability,” and that he must have known of the existence of the deed of S. C. Vineyard to his son, and it is contended that as he did not make the minors parties, that it was not necessary to make them parties in order to partition their property. The rule is unbroken that all persons interested in the estate must be made parties to a suit for partition. No case has been found that holds that a minor will be bound by a partition suit to wMch he was not a party, either in person or by Ms legally appointed representative. We are unwilling to reflect upon the memory of an able lawyer.by indulging in the presumption that he actually knew that the property had been conveyed to the minor, and still did not make him a party. It is the part of charity to presume that while he had constructive notice of the conveyance, he had no actual knowledge of it.

The confirmation of the sale to Herring, made in a guardianship obtained after the sale, no attempt being made to obtain an order of sale, was absolutely void, and' need not be discussed. O’Connor v. Vineyard, 43 S. W. 55.

In the partition suit instituted by Hale, James B. Wells, Sr., appeared, and alleged that he had bought the Allen interest in the land, and that interest consisting of one-half of eleven twenty-fourths was allotted to him. After the death of Wells his interest in the land was sold by his executor, S. L. J. Beetley, to John M. Brundrett. The sale was regular and valid. The evidence showed that Brundrett purchased the land after the death of Ms wife and paid for it with money that he borrowed from one Dubose. The land was his separate estate. Afterwards a suit was instituted against him by Samuel 0. Vineyard and Anna W. Vineyard as the guardians of Lillian Vineyard, and judgment was rendered against them in the district court, but on appeal to the Court of Civil Appeals at Galveston, the judgment of the lower court was reversed, and judgment was rendered in favor of Lillian Vineyard for 11/24 of all Ms interest in the Lamar Peninsula. 17 Tex. Civ. App. 147, 42 S. W. 232. A writ of error was refused by the Supreme Court. That judgment is conclusive as to the Brundrett interest. That judgment cannot be impeached collaterally, and whatever may have been the conduct of the attorneys in that case, whether good, bad, or indifferent, can have no effect on the judgment of the court of Civil Appeals.

The land sold to Brundrett by Beetley was inventoried as the property of James B. Wells. There were community debts, one being a debt due P. W. White, which was reduced to a judgment. That debt was evidenced by a promissory note signed by James B. Wells, Jr., John M. Brundrett, and James B. Wells, Sr., by L. A. Wells, who was the wife of James B. Wells, Sr. Mrs. Wells died on September 28, 1878, and administration was begun on her estate on September 19, 1881; Beetley, the executor of the estate of James B. Wells, Sr., being appointed administrator. The deed of the executor to Brundrett was made on December 31, 1881. The two estates were consolidated in March, 1883, and the final account was filed on September 10, 1883. The evidence showed that the cMldren of Wells, Sr., and his wife accepted the proceeds of the property bought by Brundrett, and part of the money received from the sale of the land was used in paying the community debt to White. It was paid after the estates were consolidated. The sale was valid, and conveyed the interest of the Wells estate, that of both husband and wife, to Brundrett. Murchison v. White, 54 Tex. 78. The Wells heirs received their portions of the estate. A number of advancements were made to them. They received full benefit of the money paid by Brundrett, and they are estopped to deny the validity of the sale. Ryan v. Maxey, 43 Tex. 195; Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383. The records of the probate court show the existence of debts and the necessity of a sale of the land.

There is no merit in the contention that Mrs. Vineyard and S. H. Vineyard could not obtain title from Lillian Vineyard to the land. If the latter owned the land she could sell it to any one she desired. The title held by Lillian Vineyard had no connection with the partition proceedings, and if Mrs. Vineyard’s rights in the land were settled therein, that would not preclude her from obtaining another and different title to the land. Being a married woman, she was not bound by any covenants of warranty, nor es-topped to acquire title to the property. Wadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 779.

The evidence fails to indicate that the Vineyard minors received any benefits from the proceeds of the land sold by their parents.

The judgment is reversed, in so far as it denies a recovery to appellants, and judgment is here rendered in their favor for the land sued for by them. In other respects, the judgment is affirmed.

On Motion for Rehearing.

We. held in our former opinion and reiterate that Brundrett bought the Wells interest in the land, that Samuel C. and Anna W. Vineyard, as guardians of Lillian Vineyard, recovered the interest that Brundrett had in the Lamar Peninsula, and we did not deem it necessary to state that a subsequent judgment against Brundrett in favor of Mrs. Heard for the same land could not affect the judgment obtained by Lillian Vineyard; she not being a party in the Heard-Brundrett Case. The land bought by Brundrett from the Wells estate was his separate property, paid for out of his separate funds, and neither his heirs nor the Wells heirs own any interest in the interest adjudged to Lillian Vineyard. Mrs. Heard claims title to the land through her judgment against Brundrett, and that judgment is ineffective so far as appellants are concerned.

It is true, as stated in our former opinion, that appellants have no claim to the land sold by the Colt heirs to Anna W. Vineyard and by her sold to Herring, but they are entitled to the land recovered in the judgment against. Brundrett, which was 39/144 of the land, and the 27/144 sold to Samuel Harvey Vineyard by his father, the two interests amounting in the aggregate to 11/24, which was the amount of the land sued for by appellants. This court rendered the judgment it intended to render, and it was not rendered “by an inadvertence” as stated by appellees.

The Wells interest in the land was sold to Brundrett and was recovered from him by Lillian Vineyard, and we cannot inquire into the reason or lack of reason in rendering that judgment. It stands a valid and subsisting judgment of the highest court in Texas, and must be given full force and effect. Appellees are claiming under the Brun-drett and Wells title, and that judgment adjudges that interest to be in appellants. As to that interest, as well as the Samuel Harvey Vineyard interest, the court of last resort has spoken, and by the opinions rendered by that court and opinions of the Court of Civil Appeals approved by that court, the land sued for is vested in appellants.

The motion for rehearing is overruled.


author: McKENZIE, j.

text:
    FREIDENBLOOM v. McAFEE.
    (No. 298.)
    (Court of Civil Appeals of Texas. El Paso.
    April 30, 1914.
    Rehearing Denied May 28, 1914.)
    1. Judgment (§ 565) — Conclusiveness—Dismissal “Without Prejudice.”
    A judgment sustaining a plea in abatement and dismissing the suit without prejudice to plaintiff’s right to file a new suit did not bar a new suit by plaintiff on the same cause of action; a dismissal “without prejudice,” even though erroneous, allowing a new suit to be brought.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 1018; Dec. Dig. § 565.

    For other definitions, see Words and Phrases, vol. 8, pp. 7507-7509, 7837.]
    2. Partnership (§ 317) — Accounting—Legality oe Object.
    That a partner was insolvent and owed a large amount of money to his creditors and invested money in the partnership for the fraudulent purpose of placing it beyond the reach of his creditors did not defeat his right to a partition and accounting from the other partner.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 733; Dec. Dig. § 317.]
    ? appeal and Error (§ 719) — Assignments op Error — Fundamental Error.
    An error in overruling a demurrer to a plea of res adjudicata was a fundamental error, and objections to the assignment complaining thereof were not well-founded.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Action by J. A. Freidenbloom against J. L. McAfee. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    F. G. Morris and Patterson, Wallace & Gardner, all of El Paso, for appellant. S. P. Weisiger 'and Bates McFarland, .both of El Paso, for appellee.

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

   McKENZIE, j.

Appellant, J. A. Freiden-bloom, sued appellee, J. L. McAfee, for partition of certain real estate and an accounting of an alleged partnership between them which was formed for the purpose of buying and selling real estate, and building houses and renting the same in El Paso, Tex., said partnership being formed during the year 1899, and was to continue 10 or 12 years, and was to be carried on in the name of appellee, and all property purchased or acquired by virtue of the said partnership was to be taken and held in appellee’s name, and that under said partnership a large amount of real estate had been accumulated and taken in appellee’s name. Appellant sued for a half interest in all the real estate and for an accounting of all the moneys received by ap-pellee on account of said partnership.

The defendant answered, among other defenses, by plea of res adjudicata, setting out at length in said plea the pleadings and judgment of a former suit, to which plea the plaintiff demurred. The trial court overruled the demurrer and sustained the plea of res adjudicata to plaintiff’s cause of action. The judgment set out in the plea of res ad-judieata is as follows:

“In the District Court, Forty-First Judicial District of Texas, in and for El Paso County, Texas.
“J. A. Freidenbloom v. J. L. McAfee.
No. 8775.
“Be it remembered that on the 9th day of December, 1911, came on to be heard the plea in abatement of the defendant, to plaintiff’s cause of action herein, said plea in abatement having been filed herein December 7,1911, and the court, having heard the said plea, and the evidence adduced on said hearing thereof, in support of said plea, and the argument of counsel for both parties thereon, and having taken the same under advisement until this the 11th day of December, 1911, and being fully advised in the premises, is of the opinion that said plea of abatement should be in all things sustained; it is therefore the order, judgment, and decree of the court that defendant’s said plea of abatement be and the same is hereby in all things sustained, and this suit is hereby this 11th day of December, 1911, dismissed at the cost of the plaintiff, without prejudice to the rights of the plaintiff to file a new suit; and it is further ordered that the defendant have and recover of and from the plaintiff all costs by him incurred herein, for which let him have his execution. To which ruling and judgment of the court plaintiff then and there excepted and gave notice of appeal to the Eighth Court of Civil Appeals at El Paso, Tex.”

The first assignment of error complains of the action of the trial court in overruling the demurrer to the plea of res adjudicata. The judgment in the former suit was entered, sustaining the plea in abatement, and, by an examination of same, it will be noted that the former suit was dismissed at the cost of the plaintiff, without prejudice to the rights of the plaintiff to file a new suit. We are of opinion that the provision in the judgment that the suit be dismissed without prejudice to the rights of the plaintiff to file a new suit would permit him to file such other suit, and that such judgment would not be a bar to a new action.

In Black on Judgments, § 721, it is said:

“Where a bill is dismissed ‘without prejudice,’ the effect of the reservation is to prevent the decree from constituting a bar to another suit brought upon the same subject-matter. The purport of a decree so framed is that such dismissal shall not operate as a bar to a new suit which the party may institute; it does not debar the defendant of any defense which he might be entitled to make in the new suit, and confers no privilege on the complainant; and it will not have the effect of excepting from the time prescribed by the statute of limitations the time of the pendency of that suit. In fact, the effect of the reservation is merely to prevent the decree from constituting a bar to another suit brought upon the same title, but it by no means compromits the court as a judicial determination in favor of that title. Nor does it alter the case that the court erred, by dismissing the bill ‘without prejudice,’ when it ought to have been dismissed finally upon the merits. If the decree is absolutely void for want of authority to make such a reservation, there is no valid adjudication to stand in the way of a new suit And, if it is merely irregular or erroneous, it must be corrected on appeal, and, until that is done, it must stand as rendered and cannot be impeached collaterally. Conversely, if the reservation is omitted where it ought to have been inserted, the error will be corrected in the court above.”

To the same effect is Yan Fleet’s Former Adjudication, p. 67, § 45, which holds that a dismissal of a bill without prejudice or without prejudice to another action, even though' erroneous, will not bar a new suit.

In 23 Cyc. p. 1144, it is said: “If a bill or complaint is. dismissed ‘without prejudice’ (that is, without prejudice to the right to bring another suit or take further proceedings), it has not the force of an adjudication on the merits and cannot be pleaded in bar of another suit upon the same cause of action, even though plaintiff presents no better or stronger case; and, according to the better opinion, it is immaterial that the words ‘without prejudice’ were erroneously or improperly added. But it has been held that these or equivalent words clearly expressing a saving of rights must be expressed in the judgment or decree; and, if the dismissal is specified to be without prejudice to certain specific rights or claims, it may operate as an es-toppel as to all rights or claims not embraced within the reservation.”

We have examined numerous authorities, and they are practically uniform in holding that the judgment in question would not bar a new suit. We are therefore of the opinion that the court erred in overruling the demurrer, and the assignment should be sustained.

In view of the reversal and remanding of this cause, we deem it proper to pass upon the question of illegality of the contract of partnership. Appellee contends that the partnership was illegal,' and that the court should not compel the partition and accounting as prayed for, because at the time of the alleged partnership contract, and at the time it was alleged the money was paid into said partnership firm by appellant, the appellant was insolvent and owed a large amount of money to his creditors, and that the money so invested in said partnership was for the fraudulent purpose of placing same beyond tbe reach of said creditors and with intent to delay, hinder, and defraud said creditors.

In Bates on Partnership, yol. 1, p. 127, § 122, it is said: “Where the business is legal, but the motives for forming the partnership are in fraud of the rights of others, and hence voidable as to them, the partners can be compelled to account to each other. As, where two persons form a firm for the purpose of hindering the creditors of one of them, this fact is no defense to a bill for settlement of the concern.”

The principle as announced is applicable to the case at bar. The partnership, from the allegations of the petition, was entered into for the purpose of buying real estate in El Paso, improving, selling, and renting same, which was a legal business, and the fact that the money invested by the appellant in said concern, under the authorities, would not be such a fraudulent purpose as to prevent a partition and an accounting. Harvey v. Varney, 98 Mass. 118.

Appellee objects to the consideration of the assignments of error upon various grounds. As to the first assignment of error, we are of the opinion that the objections are not well-founded. The error in overruling appellant’s demurrer to the plea of res adjudicata presents a question of fundamental error. The objections to the consideration of the other assignments of error need not here be considered, because, in view of another trial, we feel called upon to pass upon the question as to the legality of the partnership contract.

Eor the reasons indicated, this cause is reversed and remanded.


author: JENKINS, J.

text:
    SMITH v. ADAMS.
    (No. 5369.)
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1914.)
    COURTS (§ 163) — JURISDICTION— COUNTY Courts — Nature of Controversy.
    Where a purchaser advanced $700 of the price to the vendor, who executed a note therefor with an indorsement that he would accept the note as cash when the purchaser accepted title, but if title could not be made good within a specified time the vendor would pay interest as specified in the note and the $700, the note became, in the event of the vendor’s inability to make a good title, an ordinary note, and an action thereon was within the jurisdiction of the county court; title to land being at most only incidentally involved.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 410,411, 443,479,1294; Dec.Dig. § 163.]
    Appeal from Madison County Court; W. W. Sharp, Judge.
    Action by A. L. Smith against J. Q. Adams. From a judgment of dismissal for want of jurisdiction, plaintiff appeals.
    Reversed and remanded.
    W. E. Terrell, of Teague, for appellant.

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

   JENKINS, J.

Appellant brought suit upon a note executed by appellee for the sum of $700. On the back of this note was the following indorsement: “I hereby agree to accept this note in face value $700, with interest on same on part cash payment of 250 acres of land I have contracted to A. L. Smith when title accepted, but if title cannot be made good within six months from date, I will pay interest as specified in note and will pay back the $700 back to A. D. Smith. [Signed] J. Q. Adams.” Appellant alleged that on November 24, 1911, he and his mother entered into a written contract with J. Q. Adams, by which he and his mother agreed to buy 250 acres of land from defendant, on condition that said Adams would make good, merchantable title to said land, and furnish a complete abstract of title, to be placed in the Farmers’ Guaranty Bank at North Zuleh, Tex., and upon compliance with this agreement the appellant and his mother would pay appellee $2,900 for said land. Appellant alleged that appellee did not furnish an abstract, and did not tender a deed within the time specified in said contract. The transaction, as shown by the pleadings, was that appellant advanced to appellee $700 on said trade, which was to be repaid if appellee did not furnish abstract and title within the time required, and petition herein alleges failure on the part of appellee to comply with said contract. This being true, the instrument sued on becomes an ordinary promissory note. The trial court sustained a plea to the jurisdiction, and dismissed the suit, for the reason that it appeared from the petition that this was a suit involving the trial of title to land. In this the trial court was in error. The suit does not involve title to land, but only a question of fact as to whether or not appellee is indebted to appellant upon said note by reason of his failure to comply with his contract to convey land. At most, it can only be said that title to land is incidentally involved, and this does not deprive the county court of jurisdiction. Melvin v. Clancy, 8 Tex. Civ. App. 252, 28 S. W. 241; Springer v. Collins, 108 S. W. 758.

For the reasons stated, the judgment of the trial court is reversed, and this cause remanded for a new trial in accordance with this opinion.

Reversed and remanded.


author: WILLSON, O. J.

text:
    MISSOURI, O. & G. RY. CO. v. DEREBERRY.
    (No. 1301.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 23, 1914.
    Rehearing Denied April 30, 1914.)
    1. Master and Servant (§ 137) — Injury to Servant — Duty oe Care.
    Where it was the custom of a railroad company to give warnings of movements of freight trains, between the cars of which servants engaged in repair work were compelled to pass, the failure of those in charge of a train, between the cars of which a servant was passing, to giye warning will support a finding of negligence.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.]
    2. MASTER AND SERVANT (§ 137) — CUSTOM OE Master.
    Where for over a year long freight trains had been stopped between the carpenter shop and repair tracks, so carpenters had to cross between the cars, but those in charge always gave warning of any movement, the railroad cannot deny knowledge of the custom, so as to excuse the failure of the operators of a train to give warning before they moved it.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.]
    3. Master and Servant (§ 226) — Injuries to Servant — Assumption or Risk.
    Whore it was the custom of the servants of a railroad company, engaged in repair work, to pass between the cars of long freight trains so as to reach the repair tracks, and those in charge of the trains always gave warnings of any movement, a repair man did not assume the risk of injury occasioned by the failure of the operators to give the usual warning.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. § 226.]
    4. Trial (§ 296) — Instructions — Error — Cure.
    In an action for personal injuries sustained by a railroad carpenter when the cars between which he was passing were started without warning, recovery was sought solely on the ground that the operators of the cars were negligent in not giving a warning before they were moved. The jury were instructed that there could be no recovery unless such warning was not given, and that, even if none were given, there could be no recovery if it could not have been heard. Held that, in view of the others, a charge, allowing recovery in case the cars were moved with a sudden jerk when plaintiff was passing between them to the repair track, was not misleading or erroneous.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Action by W. H. Dereberry against the Missouri, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellant’s carpenter shop was on the north side, and its “rip” or repair track on the south side, of its main line track in Den-ison. Appellee, employed by appellant as a carpenter, having occasion, in the discharge of his duty as such, to go from the carpenter shop to the rip track, in attempting to cross over the main track, between cars forming a part of a long freight train then standing thereon, fell between the ears and was injured by the wheels of one of them running over his legs and one of his arms. He claimed he was caused to so fall by the act of em-ployés of appellant in charge of the train in causing same, while he was between the cars, to suddenly move forward, and that their act was negligent in that they failed to give warning that they were about to move the train. His contention that said employés in charge of the train owed him the duty to give warning of their intention to move it was based on testimony showing it theretofore to have been the custom for appellant’s employés to cross the main track as he was attempting to cross it, and for employés in charge of trains standing thereon before moving same to give warning of their intention to do so by ringing the bell or blowing the whistle of the locomotive. The appeal is from a judgment for $12,500 in appellee’s favor.
    John T. Suggs, of Denison, and Head, Smith, Maxey & Head, of Sherman, for appellant. A. L. Lewis, of Denison, and Hamp. P. Abney, and Jones & Hassell, all of Sherman, for appellee.

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

   WILLSON, O. J.

(after stating the facts as above). Unless it appeared as a matter of law that appellant was not liable to appellee for the injury he suffered, appellant’s contention that the court erred when he refused to instruct the jury to find in its favor should be overruled. To our minds it clearly did not so appear. It was shown without dispute that long freight trains frequently were left standing on the main line track at the point where appellee attempted to cross same, and that during the 14 months appellee had been in appellant’s service it had been the custom for employes, having occasion to go from one side of said track to the other side thereof while a train was standing thereon, to either climb over the cars or between same. It was further shown without dispute that always theretofore em-ployés in charge of trains standing on the track before starting same had given warning of their intention to do so by blowing the whistle or ringing the bell of the locomotive. And it was further shown without dispute that on the occasion when appellee was injured the employés in charge of the train started it without either blowing the whistle or ringing the bell, or otherwise giving notice of their intention to start it. If appellant knew of the practice of its employes in the discharge of their duties to it of crossing between cars standing on the track as ap-pellee attempted to do, and of the practice of giving warning before moving cars standing as those were, clearly it owed appellee the duty, on the occasion when he was injured, to use ordinary care to so manage its train as to avoid injuring him. We do not think appellant should have been heard to deny that it had knowledge of the manner in which its business in the respect stated had been conducted during the 14 months preceding the time when the accident occurred. If it owed appellee such a duty, then clearly the testimony showing that it started the train without first giving warning of its intention to do so was sufficient to support a finding that it violated that duty, and'therefore was guilty of negligence. Hall v. H. & T. O. Ry. Co., 125 S. W. 946, relied on in the argument and cited in appellant’s brief as supporting its contention, was not like this case. It was not shown in that case that the plaintiff in attempting to pass between the cars was following a practice long prevailing in the defendant’s yard, of which it was bound to take notice. “Not one iota of testimony,” said the court in that case, “was offered that tended in the slightest degree to show that the employés engaged in switching the string of cars knew, or had any reason to expect, that deceased, an experienced railroad man, would undertake the dangerous and reckless act of climbing over between the cars when he knew they were liable to be moved at any moment. So far as the record shows, the employés handling the train were absolutely ignorant of any intention on the part of Hall to cross over between the cars. Having no knowledge of such intention, they owed no duty to him to act with that in view.”

The further contention, made in support of the assignment, that it appeared that the risk appellee incurred in attempting to cross between the cars was' one he had assumed, should not, we think, be sustained. Appellee did not assume risk arising from the negligence of other employés of appellant of which he had no knowledge. There is nothing in the record indicating that he had any reason to believe the employés in charge of the train would not pursue the practice which had been pursued during all the time he had worked for appellant, and before moving the train give warning of their intention to do so.

In the sixth paragraph of his main charge the trial court instructed the jury as follows: “If you further believe from the evidence that plaintiff, in going to said rip track, was passing between two of the cars in said train of cars standing on said main track, and while he was in the act of swinging down from one of said cars defendant’s employés in charge of said train of freight cars caused said train to give a sudden jerk which threw him on the ground and across the rail of said track, and that one of the wheels of said cars ran over plaintiff and he was thereby injured; and if you further believe from the evidence that it was the custom of defendant to stop freight trains upon its track between said carpenter shop and said rip track and leave same standing thereon, and for defendant’s employés engaged in the service plaintiff was performing to cross between the cars standing on said main track, and that defendant through its officers and agents had notice of said custom, or in the exercise of ordinary care should have known thereof,, if you find there was such a custom; and if you further believe from the evidence that plaintiff was exercising ordinary care for his own safety at the time he sustained said injury, if any; and if you further believe from the evidence that the causing of said cars to be suddenly jerked by defendant’s employés in charge of said train, if they did cause the same to be suddenly jerked, was negligence as that term has been defined to you, and was the direct and proximate cause of plaintiff’s injury, if any — then you will find in favor of plaintiff, and assess his damages as hereinafter instructed, unless you find in favor of defendant under other instructions given you.” It is insisted that the instruction just set out was erroneous because it authorized a finding that defendant was guilty of negligence if its employés started the train with a sudden jerk. Construed by itself, the instruction is' subject to that objection. But construed, as it should be, in connection with other instructions given, the jury were not authorized, and reasonably could not have understood they were authorized, to find appellant guilty of negligence unless its employés in charge of the train not only started it with a sudden jerk, but also without first giving warning that they were about to start it. In the paragraph, seventh, following the sixth, the jury were distinctly told to find for appellant if they believed a signal was given that the train-was about to be moved. Moreover, in a special charge given at appellant’s request, the jury were told to find for it, even though they believed the employés in charge of the train failed to ring the bell or blow the whistle before starting it, if they further believed appellee, had the bell been rung or the whistle blown, would not have heard same, or if he had heard same, nevertheless would have attempted, as he did, to cross between the cars; and, in another special charge, given at appellant’s request, they were told to find for it unless they believed “that the failure to ring the bell or give some warning or signal that the train was to be started before it was started was the direct and proximate cause of the injuries sustained by plaintiff, and that but for so starting the train the injuries would not have occurred.” It is obvious, we think, that the jury could not have understood they were authorized to find appellant guilty of negligence merely because they believed the train was started with a sudden jerk.

There are other assignments than those presenting the contentions specified above, but we do not think any one of them suggests a reason why the judgment should be reversed.

As we view the testimony, it was amply sufficient to support the finding involved in the verdict that appellee, without fault on his part, was seriously and permanently injured as the result of negligence on the part of appellant as charged in the petition, and we do not think the judgment should be disturbed. Therefore it is affirmed.


author: McKENZIE, J.

text:
    ANDERSON v. INEEDA LAUNDRY & DYE WORKS et al.
    (No. 337.)
    (Court of Civil Appeals of Texas. El Paso.
    April 23, 1914.
    Rehearing Denied May 28, 1914.)
    Appeal and Error (§ 773) — Dismissal—Delay in Filing Briefs.
    Where an appellant failed to file her brief in the district court within the time limited by Rev. St. 1911, art. 2115, the appeal will be dismissed on appellee’s motion, if the appellant fails to give a sufficient excuse for her disregard of the statutory provision.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    Appeal from District Court,' Harris County; Norman G. Kittrell, Judge.
    Action between Edna T. Anderson and the Ineeda Laundry & Dye Works and others. From a judgment for the Laundry Company and others, Edna T. Anderson appeals.
    Appeal dismissed.
    Woods & Harris, of Houston, for appellant. Gill, Jones & Tyler, of Houston, for appellees.

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

   McKENZIE, J.

This cause was tried’ before the court without a jury, and judgment entered March 29, 1913. Motion for new trial overruled April 18, 1913. Appeal perfected to the Court of Civil Appeals at Galveston May 8, 1913, and the record filed in that court on the 17th day of July, 1913, the record having been delivered to the attorneys for the appellant on July 11, 1913, by the clerk of the district court, and it appears that no brief has been filed in the court below or in the Court of Civil Appeals. On February 11, 1914, in pursuance of an order of the Supreme Court, the cause was transferred to this court and was duly submitted on April 16, 1914; the record having been filed in this court since March 2, 1914. On April 11, 1914, the appellees filed their motion to dismiss this appeal because the appellant had failed to comply with the law in filing her brief in the court below and in this court. On April 14, 1914, the appellant filed in this court a motion to file briefs, tendered briefs with the motion, and also on said day filed a contest to appellees’ motion to dismiss the appeal. The cause is now before us upon appellees’ motion to dismiss the appeal.

Article 2115, Rev. Civ. St. 1911, is as follows: “Not less than five days before the time of filing of the transcript in the Court of Civil Appeals the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief, which shall be by the clerk” of the district court “deposited with the papers of the cause, with the date of filing indorsed thereon; and the clerk shall forthwith give notice to the appellee or defendant in error, or his attorney of record, of the filing of such brief, and that in twenty days after such notice the appellee or defendant .in error shall file a copy of his brief with the clerk of said court below, and- with the clerk of the Court of Civil Appeals four copies.”

We have examined the grounds of contest set out by appellant in resisting the motion to dismiss and are of the opinion that they are wholly insufficient to excuse her disregard of the provisions of the statute quoted.

It therefore becomes our duty to grant ap-pellees’ motion and dismiss this appeal. Bow-den v. Patterson, 108 S. W. 177, and authorities therein cited.


author: HIGGINS, J.

text:
    TEXAS & P. RY. CO. v. DICKSON BROS.
    (No. 314.)
    (Court of Civil Appeals of Texas. El Paso.
    April 30, 1914.
    Rehearing Denied May 28, 1914.)
    1. Carriers (§ 26)— Freight Rate — Interstate Commerce Commission.
    The rate prescribed by the Interstate Com meree Commission controls the rate for an interstate shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. § 26.]
    2. Carriers (§ 202) — Action to Recover Freight Overcharge — Issue.
    In an action to recover an overcharge on an interstate shipment of two cars of stock, where the agent of the defendant testified that the rate prescribed by the Interstate Commerce Commission then effective was 62% cents per hundred weight for a 36-foot car, minimum weight 22,000 pounds, the shipper’s testimony that he subsequently quoted to him a rate of 809.25 per car raised an issue as to the correct rate.
    [Ed. Note. — Foi other cases, see Carriers, Cent. Dig. §§ 906-915; Dec. Dig. § 202.]
    3. Carriers (§ 47) — Powers oe Carrier’s Agent — Quotation oe Rates.
    The quotation of interstate freight rates is within the scope of a railroad agent’s authority.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 107, 108, 134-141, 204; Dec. Dig. § 47.]
    4. Carriers (§ 202) — Action eor Freight Overcharge — Evidence.
    In an action to recover an overcharge on an interstate shipment of stock, evidence that plaintiff, about three years prior to such shipment, had secured a lower rate was irrelevant to the correct rate at the time of shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 906-915; Dec. Dig. § 202.]
    5. Appeal and Error (§ 1054) — Harmless Error — Admission oe Evidence.
    The rule that, in a case tried before the court, the admission of incompetent evidence is not ground for reversal, where there is competent evidence sufficient to support a judgment, since it will be presumed that the court based its findings and judgment only upon the . competent evidence, does not apply where the bill of exceptions expressly states that incompeteut evidence was considered by the court in arriving at its conclusion.
    [Ed. Note. — For other cases, see Appeal and Error, -Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1054.]
    6. Carriers (§ 202) — Action to Recover Freight Overcharge — Evidence.
    In an action to recover overcharges on an interstate shipment, evidence as to the rate on a shipment based upon two local rates and not upon a through shipment at a through rate was inadmissible.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 906-915; Dec. Dig. § 202.]
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by Dickson Bros, against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Jno. B. Howard, of Midland, and H. C. Hughes, of Galveston, for appellant. J, M. Caldwell, of Midland, for appellees.

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

   HIGGINS, J.

On November 25,1912, Dickson Bros, shipped two car loads of mares, colts, and mules from Midland, Tex., to Durant, Okl., over the lines of the Texas & Pacific Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company, paying a freight charge .of $140.80 per car. This suit originated in the justice court to recover an alleged overcharge of freight paid, and upon appeal to the county court was tried without a jury and judgment rendered in favor of plaintiffs for $142.10. In findings of fact filed by the trial court, it is found that the proper charge was $69.25 per car.

The first error assigned is that this finding is without any evidence to support it. The rate prescribed by the Interstate Commerce Commission of course controls, and it was the duty of the railway company to collect same.

The only direct evidence of this rate is contained in the testimony of Anderson, the agent of the Texas & Pacific, and witness for plaintiffs, who testified that the rate prescribed by the Commission, effective April 23, 1912, was 62% cents per hundredweight for a 36-foot car, minimum weight.22,000 pounds, but W. D. Dickson testified that, since making the shipment out of which this suit arises, the Texas & Pacific agent had quoted him a rate of $69.25 per 36-foot car. The quotation of this amount raised an issue as to the correct rate. The cause must be reversed for an error later noticed, and, in view of á retrial, we refrain from further comment upon the probative force of the evidence in the record.

Error is next assigned to the admission of the foregoing testimony of Dickson relative to the $69.25 rate. The quotation of rates is within the scope of a railway agent’s authority, and as against the particular objection urged in the brief admissible for purpose of showing the correct rate.

Error is also assigned to admission of testimony by Dickson that about three years prior to the shipment in controversy he had secured a rate of $69.25 for a 36-foot car from Midland to Durant. The rate concerning which Anderson testified is shown to-have become effective April 23, 1912. Evidence of the existence of a different rate pri- or to that date could have no proper probative force whatever. It was irrelevant and. should have been excluded.

Appellee, in reply to the assignment, invokes the rule that, in a case tried before the court, the admission of incompetent evidence is ordinarily not ground for reversal, where there is competent evidence sufficient to support the judgment, since it will be presumed that the court based its findings and judgment upon the competent rather than the incompetent evidence. This rule, however, can have no application here, because the-bill of exception expressly states that the evidence was considered by the court in arriving at his conclusion. Gaither v. Lindsey, 87 Tex. Giv. App. 149, 83 S. W. 225; Railway Co. v. Brashears, 91 S. W. 594; Garrison v. Richards, 107 S. W. 861; Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740.

In view of the fact that the rate prescribed by the Interstate Commerce Commission absolutely controls the question, the objections urged in brief to the testimony of Blakeway do not seem to be well taken, but, in view of retrial, attention is called to-the fact that it is clearly subject to the objection stated in the bill of exception, viz., that his shipment was not a through shipment and based upon a through rate but upon two local rates.

Reversed and remanded.