author: KEY, C. J.

text:
    COMPTON et al. v. WOODWARD.
    (No. 5640.)
    (Court of Civil Appeals of Texas. Austin.
    May 17, 1916.
    Rehearing Denied June 28, 1916.)
    1. Homestead <&wkey;70, 150(1) — Establishment —Right of Stjeviving Wife.
    A husband and wife at the husband’s death owned, as community property, four tracts of land. At his death and for several years preceding they had resided upon the first tract of 100 acres, and had previously worked parts of the second tract of 59 acres, and had worked and rented the second and third tracts and had purchased the fourth tract to procure the firewood therefrom, the second and third tracts being about two miles from the first tract, and no two of them being contiguous. The widow and children continued to reside upon the first tract, and to work and rent the second and third tracts, and entered into a partition agreement whereby the widow was to receive the first and second tracts and the children the other two, and had executed a partition deed and entered into possession of their respective tracts and continued to rent parts of them, and the widow had claimed the two tracts as her homestead. Held, that all of the four tracts were sufficiently impressed with a homestead character to permit her to designate, in addition to the 100-acre tract on which she resided, an additional 100 acres out of any of the tracts, and the partition had the effect of such designation.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 100-103, 294-301; Dec. Dig. i&wkey;> 70, 150(1).]
    2. Homestead <&wkey;146 — Residence—Designation of Additional Tbact.
    In' such case, and even if the second tract was not part of the homestead at the husband’s death or at the partition, but the other three tracts were impressed with a homestead character, the widow had the right to retain her residence upon the first, or 100-acre tract, and to exchange her interest in the two tracts from which she was authorized to select the 100 acres necessary to make the balance of her homestead, for another tract equally susceptible of being used for homestead purposes, which exemption would attach to the tract so received by her in such exchange or partition and continue while she used it consistent with homestead purposes.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. <J&wkey;146.]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Suit by Mrs. S. C. Woodward against C. V. Compton and others. From a judgment restraining an execution sale of a homestead, defendants appeal.
    Affirmed.
    S. I. Reinhardt and W. A. Barlow, both of Taylor, for appellants. Hair & Woodward, of Temple, and Wilcox & Graves, of Georgetown, for appellee.
   KEY, C. J.

Appeal from the district court of Williamson county from a judgment restraining an execution sale of a homestead.

The nature and result of this suit are sufficiently indicated by the trial judge’s findings of fact and conclusions of law. In the first subdivision of the findings of fact, where the trial judge dealt with the second tract of land, through inadvertence, he referred to it one time as “said third tract”; and, with that correction, we adopt his findings of fact; and, after careful consideration, we also adopt his conclusions of law. The findings and conclusions referred to read as follows:

“Findings of Fact.
“I find that on March 6, 1891, J. P. Woodward died, leaving surviving him Mrs. S. C. Woodward, who is the plaintiff in this suit, and the children named in plaintiff’s petition. At the time of his death, the said J. P. Woodward and his wife owned, as community property, four tracts of land described in plaintiff’s petition; and at the time of his death and for several years preceding, the said Woodward and .wife and children had resided upon the 100-acre tract designated in the petition as the ‘first tract.’ The said J. P. Woodward and members of his -family had for years previous to his death worked portions of the tract of land designated in the petition as the ‘third tract,’ and had at times rented portions of said third tract to other persons. At the time of the death of said Woodward, an unmarried son, then living with the family, was working a portion of said third tract. The tract of land designated in the petition as the second tract had; up to the time of the death of said Woodward, been rented out for much the greater portion of the time ; but said Woodward and members of his family had worked said third tract at least one year since the purchase thereof. The tract of land designated in the petition as the fourth tract was timbered land and was originally purchased for the purpose of procuring firewood therefrom, and had been used by said Woodward and his family for such purposes up to the time of his death. The tract designated in the petition as the second tract is situated about two miles from tract No. 1, and the third tract is situated about two miles from tract No. 1, and the fourth tract is situated several miles from tract No. 1, no two of said tracts being contiguous.
“(2) After the death of said J. P. Woodward, his widow and children continued to reside upon the 100-acre tract of land, the children from time to time moving away until at the date of the partition hereinafter referred to, only the plaintiff and one unmarried daughter were residing upon said tract. From the date of the death of said J. P. Woodward to the date of the verbal partition hereinafter referred to, said tract No. 3 had at times been worked by the members of the family, and had at times been rented out; however, at the date of said partition, said tract No. 3, containing 137% ‘acres of land, was entirely rented out. After the death of said J. P. Woodward, tract No. 2 had been continuously rented out by the plaintiff, although it appears that some work had been done thereon by a member of the family at the time of the partition the timber upon the fourth tract had been practically exhausted, and at that time and since said tract has not been of any material use to the owner.
“(3) I find that in the month of August. 1911, plaintiff Mrs. S. C. Woodward and her children entered into a verbal partition .whereby it was agreed that plaintiff should receive the 100-acre tract designated as tract No. 1, and the 59%-acre tract designated as tract No. 2, as her full share and interest in all of said estate, and that the children should receive tracts No. 3 and 4 as their interest in said estate. I find that said partition was made in good faith and that same was fair and equitable. All of said parties, in accordance with said verbal partition, on the 14th day of January, 1915, executed a partition deed, conveying to the respective parties the tracts assigned to them by said oral partition. At the time of and since said oral partition, the respective parties have been in possession of and using the respective tracts allotted to them in the partition, the plaintiff Mrs. S. O. Woodward, renting out the farming land situated upon the 100-acre tract and the 59%-acre tract so allotte3 to her, and the children renting out the tracts allotted to them. And since the said partition the plaintiff has continuously claimed'the two tracts allotted to her as her homestead.
“(4) I find that on the 6th day of June, 1911, the defendant C. V. Compton procured a judgment against the plaintiff, Mrs. S. C. Woodward, and one J. A. Uindsey, in the amount of 8945, same bearing 10 per cent, interest from date, and that on the 6th day of October, 1911, he procured and had filed in the county clerk’s office of Williamson county an abstract of said judgment. That on the 23d day of November, 1914, said defendant caused to be issued an execution upon said judgment for the sum of $546, the balance due thereon, and caused the sheriff of Williamson county to levy said execution upon the 59% acres of land designated herein as tract No. 2; but, by reason of the fact that notice of sale was not given within the time required by law, the defendant thereafter caused a writ of venditioni exponas to be issued, which said writ was levied upon said tract of land and said tract advertised for sale thereunder, and said sale having been restrained by a temporary injunction issued in this cause.
“Conclusions of Law.
“1. I conclude that at the time of the death of said J. P. Woodward all of the four tracts of land described in plaintiff’s petition were sufficiently impressed with the homestead character as to permit the plaintiff, as the surviving widow of said J. P. Woodward, to designate and select in addition to the 100 acres upon which she resided, an additional 100 acres out of any of said tracts as her homestead, and that the partition had the effect of such designation.
“2. However, should it be held that the tract of land upon which the execution was issued as above set out was not a part of the homestead at the time of the death of said J. P. Woodward, and at the time of said oral partition, nevertheless I am of the opinion that the other three tracts were without question impressed with the homestead character on said dates, and that the plaintiff had the right under the law to retain her residence upon the 100-acre tract and to exchange her interest in the two tracts from which she was authorized to select the 100 acres necessary to make the balance of her homestead, for another tract equally susceptible of being used for homestead purposes, and that the exemption should attach to the tract of land so received by her in such exchange or partition, and would continue so long as she used the same consistent with homestead purposes, and in the manner best adapted to her needs.”

Opinion.

We approve and adopt the learned trial judge’s conclusions of law, and in support of the first conclusion we cite Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. W. 164, Baldeschweiler v. Ship, 21 Tex. Civ. App. 80, 50 S. W. 644, and Pickett v. Gleed, 39 Tex. Civ. App. 71, 86 S. W. 946; and in support of the second conclusion, reference is made to Schneider v. Bray, 59 Tex. 668, Watkins v. Davis, 61 Tex. 414, Leland v. Chamberlin, 60 S. W. 435; and on all of the questions presented in this case we refer to the second edition of Judge Speer’s valuable treatise on Marital Rights,, and especially to section 396.

All the questions presented in appellant’s brief have been carefully considered, and our conclusion is that the judgment should be affirmed, and it is so ordered.

Affirmed.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    ADAMS & WASHAM v. SOUTHERN TRACTION CO.
    (No. 5611.)
    (Court of Civil Appeals of Texas. Austin.
    April 12, 1916.
    Rehearing Denied June 28, 1916.)
    1. Trial e&wkey;23.3(3) — Instructions — Reference to Pleadings for Issues.
    It is the better practice for the court in its charge to distinctly instruct the jury as to the issues involved, and the practice of referring the jury to the pleadings for the issues is not to be eiicouraged.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 529; Dee. Dig. &wkey;233(3).]
    2. Appeal and Error <&wkey;216(2) — Review-Reversible Error.
    It is not, generally speaking, such affirmative error for the court to fail to state the issues as will require reversal, since if either party is not satisfied with the charge, as not being sufficiently explicit, it is his duty to request an additional charge.
    [Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. &wkey;>216(2); Trial, Cent. Dig. § 627.]
    3. Street Railroads '<&wkey;118(l) — Trial—Instructions.
    In an action for damages to an automobile by collision with a street car, an instruction that the plaintiffs could not recover unless defendant was guilty of negligence in some of the ways alleged in the plaintiff’s petition was not error.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258, 259; Dec. Dig. <&wkey; 118(1).]
    4. Trial <&wkey;194(15) — Instructions—Weight of Evidence.
    An instruction that, if the jury believed from the evidence that the street car was operated by the defendant at a high and dangerous rate of speed, and but .for the operation of the car in such manner the collision would not have occurred, and that such operation in such manner, if it was, directly and proximately caused the collision, then to find for the plaintiff was properly refused, as upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 465; Dec. Dig. &wkey;194(15).]
    5. Trial <&wkey;253(3) — Instructions — Ignoring Defenses — Contributory Negligence.
    In an action for damages to an automobile by collision with a street car, an instruction which ignored the defense of contributory negligence was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 616; Dec. Dig. &wkey;253(3).]
    6. Street Railroads &wkey;>118(15) — Trial—Instructions — Discovered Peril.
    An instruction on discovered peril that, if after the motorman discovered the perilous condition of the automobile, he did use all the means within his power to prevent the collission, then the verdict will be for defendant was favorable to plaintiff.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258, 269; Dec. Dig. ©=» 11S(15).]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Suit by Adams & Washam against the Southern Traction Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Chas. B. Braun and Wm. R. Saunders, both of Waco, for appellant. Nat. Harris and Spell & Sanford, all of Waco, for ap-pellee.
   JENKINS, J.

We take the following statement of the nature and result of this case from appellants’ brief:

“This suit was brought by Adams & Washam, appellants, plaintiffs in the court below, against the Southern Traction Company, appellee, defendant in the court below, for damages to an automobile, alleged to have been caused by a street car of the defendant company negligently running into the said automobile. Plaintiff alleged, in substance, that as his automobile was crossing the track of the said defendant company, a street car, owned and operated by the said defendant, ran into the said automobile, seriously damaging the same; that the street car was being operated at a high and dangerous rate of speed, and that no gong was sounded or warning of any kind given; that no effort was made to stop the said street car by the operatives of the same when they saw the perilous condition of plaintiffs’ automobile upon the track of defendant company; further, that the defendant company negligently backed its street car from off of tie automobile after the collision, _ seriously damaging the automobile while so doing. The defendant company denied all the allegations of negligence, and specially pleaded that the plaintiff was guilty of negligence in the manner in which he ran his automobile upon the track of the defendant company. The cause was tried before a jury, and submitted to them upon a general charge of the court. The jury returned a verdict for the defendant.”

Appellants assign error as to the charge of the court, in that it did not state the issues made by the pleadings. The charge of the court does submit the issues raised, in that it informs the jury as to what constitutes negligence and discovered peril, and instructs them to find for the plaintiffs if the motorman was negligent in the operation of the car, or if, after having discovered appellants’ peril he failed to use all the means at his command to prevent the injury; and also instructs the jury that if they find appellants were guilty of contributory negligence, to find for the appellee, unless they find for the appellants as to discovered peril. No evidence was offered as to the car’s not being properly equipped with air brakes. It is the better practice for the court in its charge to distinctly instruct the jury as to what are the issues involved. The practice of referring the jury to the pleadings for the issues is not to be encouraged. Electric Co. v. Nelson, 34 Tex. Civ. App. 72, 77 S. W. 978; Manufacturing Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S. W. 860; McCarty v. Railway Co., 21 Tex. Civ. App. 568, 54 S. W. 421. However, it is not, generally speaking, such affirmative error for the court to fail to state the issues as will require a reversal. Railway Co. v. Lehmberg, 75 Tex. 66, 12 S. W. 838; Railway Co. v. Alberti, 47 Tex. Civ. App. 37, 103 S. W. 701; Railway Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S. W. 208. A case will not be reversed where there is no affirmative error in the charge. If either party is not satisfied with the charge as not being sufficiently explicit, it is his duty to request an additional charge, which was not done in this case as to the matter here under consideration. In Railway Co. v. Garcia, supra, the court said:

“If the court had omitted a material portion of the pleadings of the appellant in the statement of its defenses, this would not, of itself, have been an affirmative error, and, in the absence of a refusal to give a special charge covering the omission, there was no ground for complaint. A court is not required to state any more of the pleadings of the parties than he deems necessary; and, if there should be an omisssion, the party complaining should request a special charge before he will be heard to urge this omission on appeal as a ground for reversal.”

It was not error for the court to instruct the jury, as was done in the special charge given at the request of appellee, that the appellants could not recover unless appellee was guilty of negligence in some of the ways alleged in appellants’ petition. ■

Appellants requested the following special charge, which was refused:

“Gentlemen of the jury, you are instructed that if you believe from the evidence that said street car, under all the circumstances, was operated by the defendant at a high and dangerous rate of speed, if you find it was so operated, and that but for the operation of said street car in such manner said collision would not have occurred, and that such operation in such manner, if it was, directly and proximately caused this collision, then in that event you will find for the plaintiff, and so say by your verdict.”

The vice in this requested charge is that it is upon the weight of the evidence, in that it tells the jury that certain acts, if committed by the appellee, would constitute negligence; whereas, that was an issue for the jury to decide; and also it ignores the defense of contributory negligence. For these reasons the court did not err in refusing to give this charge.

Appellants assign error upon the following paragraph of the court’s charge:

“But on the other hand, if you find from the evidence that the plaintiff Washam was guilty of negligence in driving the automobile upon the tracks of the defendant, that is, 'if you believe from the evidence that the plaintiff Washam did not exercise that degree of care that a person of ordinary care would exercise under the same or similar circumstances in driving the automobile upon the tracks of the defendant company, and that such negligence upon the part of said plaintiff Washam, if any, contributed to and was the direct and proximate cause of the injuries to the said automobile; and if you further find from the evidence that after said motorman or employé did discover said perilous condition of said automobile, he did use all the means within his power to prevent said eolllision — then your verdict will be for the defendant.”

This charge was favorable to the appellants, assuming that the evidence raised the issue of discovered peril, which is doubtful.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      <@E^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KHT, C. J.

text:
    MIDDLETON v. TEXAS POWER & LIGHT CO.
    (No. 5408.)
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1916.)
    Courts <&wkey;99(l) — Previous Decisions in Same Case as Law oe the Case.
    The decision of the Supreme Court on questions certified from the Court of Civil Appeals is the law of the case on its return.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. <&wkey;>99(l).]
    Appeal from; District Court, McLennan County; Tom L. McCullough, Judge.
    On motion for rehearing.
    Motion granted, former opinion set aside, and judgment of the District Count affirmed.
    For former opinion, see 178 S. W. 956. See, also, 185 S. W. 556.
    Witt & Saunders and Chas. B. Braun, all of Waco, for appellant. Lawther, Pope & Mays and Homer R.' Mitchell, all of Dallas, and Spell & Sanford, of Waco, for appellee.
   KHT, C. J.

This case involves the constitutionality of the Employers’ Liability Act passed by the Thirty-Third Legislature (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246]). This court held that the act referred to was unconstitutional, and not binding upon an employé who had not accepted its terms and agreed to be bound by it. Middleton v. Texas Power & Light Co., 178 S. W. 956. This court held that the effect of the act referred to is to confer the power upon employers to select which of two materially different laws shall govern in determining the rights of their employés as against them, regardless of the wishes of such employés; and therefore we held that it violated both federal and state constitutional guaranties.

Appellee filed a motion for rehearing and a motion to certify the question decided by this court, and other questions, to the Supreme Court, which latter motion was granted, and the motion for rehearing has been held in abeyance to await the decision of that court. The Supreme Court has decided all the questions certified, and has held that the statute referred to is valid and free from constitutional objection. Middleton v. Texas Power & Light Co., 185 S. W. 556. The decision of that court is the law of the case, and therefore the motion for rehearing is granted, the former judgment of this court is set aside, and the judgment of the district court is affirmed.

Motion granted. Judgment affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY,- C. J.

text:
    INTERNATIONAL & G. N. R. CO. et al. v. HUDSON.
    (No. 5601.)
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1916.)
    1. Carkiers &wkey;228(5) — Carriage oe Live Stock — Actions—Evidence.
    In an action against a carrier to recover damages for injuries to a shipment of cattle, evidence held insufficient to sustain a verdict for the plaintiff on an alleged verbal contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;228(5).]
    2. Carriers <&wkey;218(ll) — Carriage oe Live Stock — Contract oe Shipment — Notice-Waiver.
    Waiver being founded largely upon the doctrine of estoppel, it would require a finding, in an action to recover damages for injuries to a shipment of cattle, that the conduct of defendants, relied upon as a waiver, must have misled plaintiff and prevented him from giving the notice required by the contract of shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696, 948; Dec. Dig. &wkey; 218(11).]
    Appeal from Milam County Court; John Watson, Judge.
    Action by R. B. Hudson against the International & Great Northern Railroad Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Chambers & Baskin, of Cameron, Doremus, Butler & Henderson, of Bryan, and Wilson, Dobney & King, of Houston, for appellants. U. S. Hearrell, of Cameron, for appellee.
   KEY,- C. J.

Appellee brought this suit in the county court of Milam county against the International & Great Northern Railway Company and the Texas &. Pacific Railway Company, and sought to recover damages for injuries to a shipment of cattle from Troupe, Tex., to Bronte, Tex., stating the amount of his damages at $971. There was a Jury trial, which resulted in a verdict , and judgment against the International & Great Northern Railway Company for $250, and against the Texas & Pacific Railway Company for $721, and the two companies have appealed.

The plaintiff based his suit upon an alleged verbal contract, while the defendants averred that the shipment was made under three written contracts, one made with each of the defendants, and the other with the Kansas City, Mexico & Orient Railway Company, which latter company transported the shipment from Sweetwater, on the line of the Texas & Pacific Railway, to Bronte, its final destination. The defendants also averred and proved that the contract with the International & Great Northern Railway Company contained a stipulation, requiring notice of injury to the property shipped within 91 days, and a similar contract with the Texas & Pacific, requiring such notice within 120 days; and the proof shows that appellee failed to comply with either of the stipulations referred to.

The trial court submitted the case to the .jury under a charge which required a finding as to whether the shipment was made under a verbal contract; and the jury found in their verdict that it was so made. By their twenty-second assignment of error appellants assail that finding as being contrary to the law and the evidence and against the great weight and preponderancé of the testimony; and a careful consideration of the testimony, as revealed by the statement of facts, leads us to conclude that appellants’ contention in that respect is correct, and for that reason the judgment of the trial court will be reversed.

We do not regard this case as analogous to Railway Co. v. Looney, 51 Tex. Civ. App. 381, 115 S. W. 269, and other cases relied on by counsel for appellee. On the contrary, it is more like Turner et al., Receivers, v. Henderson, 183 S. W. 51, recently decided by this court.

The testimony of the witness Cumbie, relied upon by appellee to show that a verbal contract was made, does not, in our opinion, support that contention. Considering all of his testimony, that upon cross as well as direct ‘examination, its substance was that, as agent for the plaintiff, he bought the cattle in question and attended to their shipment; that he made application to the agent of the International & Great Northern Railway at Troupe for cars to make the shipment, and the latter promised to furnish the’m; that he inquired as to the amount of freight charges, and the agent told him how much it would he; that he asked how much time would be consumed in shipping the cattle from Troupe to Bronte, and the agent told him about 48 hours, but did not guarantee the time; that he had had many years’ experience in shipping live stock, and had always signed written contracts, and expected to sign such contract on the occasion in question ; that thereafter he carried the cattle to Troupe, loaded them upon the cars, and after doing so, signed a written contract, which was introduced in evidence -by appellants, and which contained a stipulation, requiring written notice concerning injuries to be given within 91 days. He also testified that he did not have time, after signing the contract and before the train left, to read it, and did not know that it contained the stipulation referred to. What occurred between the witness and the railroad agent when he made application for the cars failed to prove a verbal contract, as it constituted only the usual preliminary negotiations leading up to the execution of the written contract, which the witness expected to and did sign. Furthermore, the undisputed proof shows that appellee first brought suit in the county court of Coke county against the appellants in this case, and also against the other carrier who handled the shipment, to recover damages on account of injuries to the shipment of live stock involved in this case, and also for injuries to a prior shipment, in which suit he alleged his total damages for both shipments at $507.80. It was also shown that, when the defendants in that case filed their answer, setting up as a defense appel-lee’s failure to give notice of the injury to the cattle, as required hy the written contracts of shipment, appellee did not contend that the shipments were made under verbal contracts, and not under those shown to have been in writing and duly signed, but, instead of doing so, he took a nonsuit and thereafter, at a much later date, brought this suit in a different county and for almost double the amount of his former claim. While not conclusive, .the facts referred) to tend to show that the alleged verbal contract was an afterthought, and also that he recovered more in this case than he would rightfully be entitled to if any liability had been shown.

The other assignments of error are overruled, though we suggest that upon another trial the charge upon the question of waiver should be differently framed. Waiver is founded largely, if not entirely, upon the doctrine of estoppel, which, as applied to this case, would require a finding that the conduct of appellants, relied upon as a waiver, must have misled appellee and prevented him from giving the notice required by the contract.

Eor the reason stated, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HERNDON PRODUCE CO. et al.
    (No. 5643.)
    (Court of Civil Appeals of Texas. Austin.
    June 21, 1916.)
    1. Courts <&wkey;37(l) — 'Waiver op Errors — Jurisdictional Matters — Fundamental Error.
    Entire want of jurisdiction due to demand in excess thereof is fundamental error which cannot be waived.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 147; Dec. Dig. &wkey;37(l).]
    2. Courts <&wkey;169(4) — Jurisdiction—Texas— County Court — Interest.
    Interest on damages demanded, being a part of the damages and not in fact “interest,” the county court is without jurisdiction if the total demand, plus interest demanded, exceeds $1,000.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 420, 429-430; Dec. Dig. &wkey; 169(4).]
    Appeal and Error from McLennan County Court; Geo. N. Denton, Judge.
    Action by G. Herndon, doing business under the name of the Herndon Produce Company, against the St. Louis Southwestern Railway Company and others. Judgment for plaintiff against all defendants, and for the St. Louis Southwestern Railway Company against the other defendants, and the St. Louis Southwestern Railway Company appeals, and the other defendants bring error. The proceedings were consolidated.
    Reversed and dismissed.
    E. B. Perkins, of Dallas, Scott & Ross, of Waco, and Bennett Hill and G. D. Hunt, both of Dallas, for appellant and plaintiffs in error.
   KEY, C. J.

G. Herndon, doing business in the firm name of Herndon Produce Company, brought this suit in the county court against the St. Louis Southwestern Railway Company of Texas and certain other railway corporations, and sought to recover damages resulting from alleged delays in the transportation of a certain shipment of eggs from Waco, Texl, to New York City, in the state of New York. There was a jury trial, which resulted in a judgment for the plaintiff against all of the defendants for $1,137.-60, with interest at 6 per cent, per annum from date of judgment. There was also a judgment over in favor of the St. Louis Southwestern Railway Company against the other defendants for the amount recovered by plaintiff from that defendant. The St. Louis Southwestern Railway Company has prosecuted an appeal and filed a transcript in this court on October 7, 1915, and the other defendants have sued out a writ of error and filed a transcript in this court November 11, 1915; and upon motion of the plaintiffs in error the two appeals have been consolidated in this court.

The first question presented for consideration involves fundamental error of such a nature that it cannot be waived. In other words, the contention is that the plaintiff’s petition shows upon its face that the amount in controversy was in excess of the jurisdiction of the county court. The plaintiff alleged in his petition that the shipment of eggs should have reached the New York market on the 23d day of November, 1912, but that it was wrongfully delayed by the defendants, and did not reach that market until the 26th day of that month, and that the market price of eggs had depreciated from $12 per case on February 23, 1912, to $9.60 per case on the 26th day of that month, when they were sold, and that as a result of such depreciation in value and wrongful delay in the shipment, the plaintiff lost in the difference of market value of the eggs $960, and he prayed for judgment against the defendants for that amount—

“together with interest thereon from the 26th day of February, A. D. 1912, with his costs of court and such other and further relief as in law or equity he may show himself entitled to.”

It is stated in the briefs of the appealing litigants, and not denied by appellee, that the suit was commenced on April 9, 1913, and the record affirmatively shows that the original petition was filed during the year 1913, though the month and day are not stated. It is well settled by the decisions in this state that the 6 per cent, upon the $960, which the plaintiff denominated “interest,” and sought to recover from February 26, 1912, was not in fact interest, but was a portion of the damage sued for; and if at the time the suit was commenced the 6 per cent, referred to, added to the $960, made an aggregate amount in excess of $1,000, then the county court had no jurisdiction of the subject-matter. Omitting fractions, a simple calculation will show that 6 per cent, of $960 is $4.S0 per month. The record shows that the original petition was filed during the year 1913, and if it be conceded that it was filed on the first day of that year, the time intervening between February 26, 1912, and the commencement of the suit was at least ten months, which adds $48 to the $960, making a total of $1,008. So it appears that the county court was without jurisdiction to try the case, and therefore the judgment is reversed, and the case dismissed. F. W. & D. C. R. R. Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, 123 Am. St. Rep. 806; Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Schulz v. Lessman, 92 Tex. 488, 49 S. W. 1031; Ft. W. & R. G. R. R. Co. v. Mathews, 169 S. W. 1052; Rotan Gro. Co. v. M., K. & T. Ry. Co., 142 S. W. 623; Ft. W. & D. C. R. R. Co. v. Everett, 95 S. W. 1085.

Reversed and dismissed.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    BAY LUMBER CO. v. ARTMAN & BUETTMER.
    (No. 5642.)
    (Court of Civil Appeals of Texas. Austin.
    May 10, 1916.
    Rehearing Denied June 28, 1916.)
    1. Account, Action on <&wkey;12 — Answer—Admission.
    Under the express provision of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 3712, the defendant’s failure to deny the justness of a verified account, or any item thereof, is equivalent to an admission of its correctness.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § $7; Dec. Dig. <®=ol2.]
    2. Account, Action on &wkey;>12;-REC0VEi5Y. Where defendant, in an action on a verified
    account, admitted its correctness and did not allege any payment thereof, plaintiff was entitled to recover.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 37; Dec. Dig. <&wkey;>12.]
    Appeal from Lee County Court; John H. Tate, Judge.
    Suit by the Bay Lumber Company against Artman & Buettmer with plea of set-off by defendants. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Carothers & Brown, of Houston, for appellant. E. Simmang, of Giddings, for ap-pellees.
   RICE, J.

This suit was brought by appellant against appellees on a verified account to recover $535.60, the price of a carload of lumber sold and delivered to them by appellant on the 26th day of January, 1914. Appellees answered, failing to deny the correctness of the account or any part thereof, but pleaded that during their dealings with appellant it had made certain errors and mistakes in its account against them, which on two separate occasions were adjusted and settled by it with them, neither of which, however, was alleged to embrace the bill of lumber in question, which settlement they pleaded in accord and satisfaction of the differences between them. Ap-pellees further alleged that they had an agreement with appellant, by which it obligated itself to sell them lumber at cost, plus freight charges and 10 per cent, profit, but that appellant had failed to sell them goods in accordance therewith, having made numerous overcharges against them to the extent of $500, which they plead in offset of appellant’s demand. There was a jury trial, which resulted in a verdict and judgment in favor of appellees for $35, from which this appeal is prosecuted.

It is urged on the part of appellant that the judgment rendered against it is fundamentally erroneous in this, that it appears from the pleadings that appellant is entitled to judgment against appellees for the sum of $535.60; whereas, appellees under no construction of their pleadings were entitled to recover more than $500 from appellant. There being no denial of the justness of appellant’s account or any item thereof, as required by article 3712, Yernon’s Sayles’ Civ. Stats., which was equivalent to an admission of its correctness (see, also, Knowles v. Gary & Burns, 141 S. W. 189; Shuford v. Chinski, 26 S. W. 141), and no payment thereof being alleged on the part of appellees, it was entitled to recover thereon ; and in no event under the pleadings could appellees recover more than $500, the extent of their cross-action. Hence the judgment against appellant for $35 finds no support in the pleadings, and is fundamentally erroneous; for which reason the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <@r=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WHITE ROCK GRAVEL & SAND CO. v. INTERNATIONAL & G. N. RY. CO.

    (No. 5615.)
    (Court of Civil Appeals of Texas. Austin.
    May 3, 1916.
    Rehearing Denied June 28, 1916.)
    1. Cabecees <&wkey;12(l) — Switching Charges— Absorption — Order.
    Under a rule of the Railroad Commission that, on all competitive business originating at a junction point from which a line or lines of railroad could haul shipments to destination and make delivery to consignees whose places of delivery are on or reached by such lines, the other line or lines of railroad, handling business from such junction point to such destination for consignees whose places of delivery are so located, must absorb the switching charges necessary in making delivery, defendant railroad was not required to absorb switching charges in excess of the minimum- amount per car incurred in obtaining possession of the cars at the point of origin, over the spur track built by the plaintiff to another railroad, though plaintiff, had been compelled to pay a greater switching charge to such other railroad under his contract with it approved by the Railroad Commission.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7, 15-20; Dec. Dig. <&wkey;>12(l).j
    2. Carriers <&wkey;20(3) — Switching Charges— Extortion — Order.
    The payment of switching charges from plaintiff’s gravel.pit, in excess of a certain figure per car as fixed by an order of the Railroad Commission in approving plaintiff’s contract with a railroad to which plaintiff had built a spur track, to other railroads than defendant’s made no cause against the defendant for the statutory damages for extortion or unjust discrimination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 33; Dec. Dig. &wkey;?20(3)J
    3. Carriers <&wkey;20(10) — Switching Charges— Presumption.
    In a suit to recover of defendant railway the excess over the- maximum sum fixed by an order of the Railroad Commission, which plaintiff had been compelled to pay as switching charges to another railway, and which defendant failed to. absorb, where it was alleged that defendant absorbed the switching charges on two competing gravel pits within the switching limits of the city, without alleging the amount of which charges, it would not be presumed that defendant absorbed a greater amount of charges for the competing gravel pits.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 47; Dee. Dig. c&wkey;20(10)J
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Suit by the White Rock Gravel & Sand Company against the International & Great Northern Railway Company. Judgment for defendant on demurrer to the petition, and plaintiff appeals.
    Affirmed.
    Cockrell, Gray & McBride and Tarlton Morrow, all of Dallas, and Davis & Cocke, of Waco, for appellant. Wilson, Dabney & King, of Houston, and Neff & Taylor, of Waco, for appellee.

      Application for writ of error pending in Supreme Court.

   JENKINS, J.

This suit was instituted by appellant to recover of the appellee the sum of $879, which it alleged- it had been compelled to pay as switching charges to the Texas Central Railroad Company and the Missouri, Kansas & Texas Railway Company, as successor of said Texas Central Company, and' which the appellee failed and refused to “absorb,” and also for the further sum of $158,-000, statutory damages for “extortion” and “unjust discrimination.’’ The appellant alleged that, as the successor of Alf A. Edwards, it owned a gravel and sand pit, and about January 1, 1910, Edwards built a spur-track to the same, connecting with the line of the Texas Central Railroad Company, and at about that time entered into a contract with said railway company, by which it agreed to pay for switching gravel from its; pit from $2.50 to $5.50 per car, depending upon the number of cars handled per day; that this contract was submitted to the-Railroad Commission and by it approved, and on' January 10, 1910, the Railroad Commission adopted the following order:

“Authority No. 61.
“Charges per car for movement over tracks of Texas Central Railroad Company, of loaded and - empty cars between gravel pit of Alf A. Edwards, located on spur connection with Texas Central main line track at a point about 6,500-feet west of mile post 3, being within the switching limits of its Waco station, and Texas Central connections with other lines of railwaj's entering the city of Waco, for the round trip empty and loaded movement.
“Loaded cars handled per day:
“where Engine-where Engine and Crew are and Crew are Furnished by Furnished by Railway Com- Other Parties, pany.
If 50 cars or more... $3 00 $2 50
If 40 and less than 50 3 50 3 00
If 30 and less than 40 4 00 3 50
■If 20 and less than 30 4 50 4 00
If 10 and less than 20 5 00 4 50
If 9 and less. 5 50 5 00
“The charges above authorized to be open to-all shippers, or parties desiring such movement.”

The petition further alleged:

. That said gravel pit was within the switching limits of the city of Waco. That there were two other sand and gravel pits within the switching limits of the city of Waco from which gravel was shipped over appellee’s railway, and that ap-pellee paid the switching charges thereon. That on the gravel switched from appellant’s pit there were switching charges of $5 and $5.50 per car, as the case might be, describing each car and the charges thereon ; that appellee refused to ay said switching charges, except the sum of' 2.50 on each ear. That the Texas Central Railway Company, and the Missouri, Kansas & Texas Railway Company as its successor demanded payment of the remainder of said charges, and threatened to refuse to switch the-same unless paid in full, by reason of which' and in order to get its gravel transported it was compelled to pay the remainder of said switching charges.- That appellant has called upon the a_p---pellee to reimburse it fm charges so paid by it-,- and that appellee has failed and refused so to do. “That at the time the- various shipments were • made by the plaintiff on the line of the defendant railway, as shown' by the statement heretofore set out, there was in existence by due promulgation the following rule of the Railroad Commission of Texas, to.wit: ‘When two or more-routes of railroad shall be in operation between shipping point and point of destination, the-lowest rate applicable by any one of such routes. ■shall he adopted by the other routes accepting freight for transportation between such points. Bates from or to intermediate points shall not be affected by this ruling.’ That in addition to the foregoing rule, at the time of each of said respective shipments, as shown in the statement heretofore set out., there was also in existence, by due promulgation, the following rule of the Railroad Commission of Texas: ‘It appearing that there is some misunderstanding as to authority for absorbing switching charges, on competitive business, the Railroad Commission of Texas rules that on such business; that is to say, on business originating at a junction point from which a line, or lines of railroad can haul shipment to destination and make delivery to consignee, whose place of delivery is on or reached by said line, the other line or lines of railroad handling business from such junction points to such destination, for consignees whose places of delivery, are located as stated, must absorb the switching charges necessary in making delivery.’ ”

The rule of the Railroad. Commission above set out is the only authority to which our attention has been called, or of which we are aware, which requires a railroad company to absorb any switching charges. It will be seen that this rule applies only to switching charges at the place of delivery; that is to say, if the appellee hauled any gravel from Waco, a junction point and delivered the same to a consignee whose place of business was reached by a competing line, by reason of which switching charges were incurred in making the delivery, the appellee would be required to absorb such switching charges.

It is not alleged that any of the cars mentioned in appellant’s petition were delivered at the point of destination to a consignee whose place of business was on or was reached by another railroad, by reason of which switching charges were paid in making such delivery. The switching charges which it is alleged the appellee refused to absorb, in excess of $2.50 per car, were incurred, not at the point of destination, hut at the point of origin; and not in making delivery at the point of destination, but in obtaining possession of same at the point of origin.

The petition makes no cause against the appellee for extortion or for discrimination. The switching charges in excess of $2.50 charged by the Texas Central and the Missouri, Kansas & Texas were paid to those companies, and not to appellee.

It is alleged that appellee absorbed the switching charges on two other gravel pits within the switching limits of the city of Waco, but the amount of such charges'is not alleged. It appears that appellee did absorb $2.50 switching charges per car for appellant. This is the maximum switching ■charges fixed by general order of the Railroad Commission; and it will not be presumed, in the absence of an allegation to the ■contrary, that appellee absorbed a greater amount of charges for the competing gravel pits. The location of the other gravel pits is not made to appear, other than that they are within the switching limits of Waco. It appears from the petition herein that appellant’s gravel pit is more than a mile from the three-mile post on the Texas Central Road, which would seem to account for the fact that Edwards, the predecessor of appellant, agreed to pay as high as $5.50 for switching charges, when the maximum charges, under the general order of the Railroad Commission, are only $2.50.

The court sustained appellee’s general demurrer to plaintiff’s petition. For the reasons stated, we do not think the court erred in so doing, and therefore the judgment of the trial court herein is affirmed.

Affirmed.
      <@=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GLASSCOCK et al. v. LIVERPOOL, LONDON & GLOBE INS. CO.
    (No. 5594.)
    (Court of Civil Appeals of Texas. Austin.
    May 17, 1916.
    Rehearing Denied June 28, 1916.)
    1. Insurance <&wkey;668(l) — Cancellation—Authority of Agent — Question for Jury.
    In an action on a fire policy, where defend-, ant claimed that the original policy had been canceled and a smaller policy substituted, held, on the evidence, that the authority of the insured’s attorney to accept a notice of cancellation and substitution, was for the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1751, 1757; Dee. Dig. &wkey;668(l).]
    2. Insurance &wkey;>229(l) — Fire Insurance — Cancellation of Policy — Necessity of Notice to Mortgagee.
    Under a policy of fire insurance on a warehouse, making loss payable to a mortgagee as her interest might appear subject to the terms of the policy, and providing that it might be canceled by the insurer by giving five days’ notice of such cancellation, a cancellation by the insurer was not binding upon the mortgagee, to whom no notice of cancellation was given.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 501; Dec. Dig. &wkey;229(l).]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Action by W. D. Glasscock against the Liverpool, London & Globe Insurance Company, with petition of intervention by Fannie Man-love, seeking judgment against defendant. Judgment for plaintiff, motions by plaintiff and intervener for new trial overruled, and they except and appeal.
    Reversed, and cause remanded for another trial.
    R. E. McKie and E. M. Cape, both of San Marcos, for appellant Glasscock. Barber & Johnson, of San Marcos, for appellant Man-love. Thompson, Knight & Harris and Geo. S. Wright, all of Dallas, for appellee.
   KEY, C. J.

Appellee concedes the correctness of appellant’s statement of the nature and result of this suit, which is as follows:

“This is an action by plaintiff W. D. Glasscock against the Liverpool, London & Globe Insurance Company of London, England, in which suit Miss Fannie Manlove intervened. On February 10, 1915, plaintiff filed his original petition, same being a suit upon an insurance policy for the sum of $1,750, alleging that on the 26th day of September, 1914, plaintiff was the owner of a certain warehouse building in the town of San Marcos, and that plaintiff also held a policy of insurance against loss by fire upon said building in the sum of $1,750, written by defendant; that on said date said building was totally destroyed by fire. Plaintiff further. alleged that said policy was still in full force and effect, and that premium had been paid on same, but that shortly prior to the date of said fire defendant had attempted, without notice to plaintiff or without his knowledge or consent, to reduce the insurance on said building, and to accomplish that purpose wrote another policy thereon, which had been mailed to plaintiff, but never received by him, said second policy being for the sum of $1,250. Plaintiff prayed judgment for the full amount of his first policy for $1,750, with interest thereon from date of fire, and all costs, and, in the alternative, for judgment upon the second policy for $1,250. The two policies were attached to and made part of said petition.
“On March 11th, Miss Fannie Manlove filed her petition of intervention, alleging that she had a valid subsisting lien against the warehouse property of plaintiff for the sum of $3,000, and that such insurance was payable to her as her interest might appear, and she in turn prayed judgment against the defendant insurance company for the amount of said $1,750 policy, and in the alternative for the amount of said $1,250 policy and for costs. Defendant, on March 15, 1915, filed its first amended answer, consisting of a general demurrer, specific denials of liability upon said $1,750 policy, and alleged that same had been duly and legally canceled, and that defendant was only liable for $1,250 or the amount of the last policy written. On the same day defendant also filed its answer to the plea of intervener, Miss Fannie Manlove, consisting of a general demurrer and specific denials, the same as contained in its answer to plaintiff’s petition, and asked to be subrogated to the rights of intervener. Plaintiff on March 15, 1915, filed his first supplemental petition, consisting of general demurrer, special exceptions, specific denials, including a denial under oath that E. M. Oape was agent for plaintiff, or had authority to cancel any insurance for him. On same day intervener filed a supplemental petition, consisting of general demurrer, the adoption of the allegations of plaintiff’s supplemental petition. Thereafter, on same date, defendant filed its supplemental answer, joining issue upon the allegations of plaintiff’s original and supplemental petitions, and on same day filed supplemental answer to plea of intervention, consisting of general demurrer and general denial. Thereafter, on same day, plaintiff filed a second supplemental petition, and on the same day intervener filed her supplemental petition.
“Upon the pleading above mentioned a trial was had in the district court before the judge and a jury. The said cause was submitted upon special issue, and the only issue submitted was found in favor of plaintiff. The defendant thereupon filed its motion to render judgment in favor of the defendant upon the $1,750 policy, and in favor of the plaintiff upon the $1,250 policy; and the plaintiff also filed his motion on same date, praying the court to enter judgment in favor of plaintiff upon said $1,750 policy, with interest as prayed, and costs; and the court, having heard the said motions, entered judgment in favor of defendant upon said $1,750 policy and in favor of plaintiff upon said $1,250 policy. The plaintiff W. D. Glasscock filed his motion for new trial, and the intervener, Miss Fannie Manlove, on same date filed her motion for new trial, and, the court having heard said motion of both plaintiff and intervener, same were in all things overruled, to which action of the court plaintiff and intervener each then and there excepted, and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District at Austin. Thereafter, plaintiff W. D. Glasscock filed his appeal bond, and intervener also filed her appeal bond. After-wards plaintiff filed his statement of facts and bills of exception, and now brings this case to this honorable court for review.”

The trial court submitted but one issue to the jury, and that was to find whether or not O’Dell Douglas, as agent of the defendant insurance company, collected and received the premiums on the $1,750 policy, to which special issue the jury answered, “Yes.” Upon the verdict of the jury the plaintiff Glasscock and the intervener, Miss Manlove, were entitled to a judgment upon the $1,750 policy, unless the undisputed testimony clearly showed that the policy referred to had been canceled by appellant in the manner prescribed in the policy, or that, by agreement between the parties, the other policy for $1,-250 had been substituted for the one for $1,-750. The wording of the loss payable clause in the policy is as follows:

“It is agreed that any loss or damage ascertained and proven to be due to the assured under this policy shall be held payable to Miss Fannie Manlove as interest may appear, subject, however, to all the terms and conditions of this policy.”

Among other provisions of the policy, the following are quoted:

“This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium.
“If with the consent of this company an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.”

The transactions which it is claimed by the insurance company constituted notice authorizing a cancellation of the $1,750 policy, and also those claimed to show an agreement by which the $1,250 policy was substituted for the other policy, took place between agents of the insurance company and E. M. Cape, an attorney practicing law in the town of San Marcos, where the insured property was located. Appellant Glasscock contends: First, that the testimony fails to show that Cape was his agent upon whom notice could be served as to cancellation, or who had authority to make an agreement substituting the smaller for the larger policy; and, second, that if there was any testimony tending to show such agency, there was also testimony tending to show that no such agency existed, and therefore the question of Cape’s agency should have been submitted to the jury, as requested by him, Glasscock. We sustain the latter contention, and reverse the ease upon that ground. While there was testimony tending to show, the existence of such agency, there was also testimony to the contrary; and therefore the court erred in refusing to submit that issue to the jury, as requested by Glass-cock.

As to appellant Miss Manlove, there was no proof whatever tending to show that ■Cape was her agent, that she was a party to any agreement to substitute one policy for another, or that she had any notice of the company’s intention to cancel the $1,750 policy. She was the holder of a note which was secured by a deed of trust on the insured property, which note appellant Glasscock had agreed to pay, and which deed of trust required the maker of the note, from whom Glasscock bought the property to carry insurance, amounting to at least $2,5i00, against loss by fire, with loss payable to the holder of the note, as her interest might appear, and with a further provision that if the maker of the note failed to comply, the holder thereof could declare the note due and enforce payment or procure insurance at the expense of the owner of the property. In view of those facts, and of the provisions of the policy hereinbefore set out, it is contended on behalf of Miss Manlove that, whatever may be the rights of Glasscock, she has the right to enforce payment of the $1,750 policy, her debt being in excess of that sum.

It will be observed that the policy stipulates that it may be canceled by the company by giving five days’ notice of such cancellation, but does not stipulate to whom such notice shall be given; and this gives rise to the question as to whether or not a cancellation by the company which will bind the owner of the property is also binding upon a mortgagee, to whom no notice of cancellation was given. That question does not appear to have been decided in this state, though there are some expressions by our Supreme Court in Dumphy v. Ins. Co., 174 S. W. 814, tending to support the contention urged in behalf of Miss Manlove. However, that question has been dealt with in some other jurisdictions, and the contention of counsel for Miss Manlove seems to be sustained by the following authorities: Rawl v. Ins. Co., 94 S. C. 299, 77 S. E. 1013, 45 L. R. A. (N. S.) 463, Ann. Cas. 1915A, 1231; Lattan v. Royal Ins. Co., 45 N. J. Law, 453; Lee v. Ins. Co., 154 N. C. 446, 70 S. E. 819, 1004. See, also, 19 Cyc. 647, where the text reads as follows:

“The notice should be given to the party to the contract, that is, to the one liable for the payment of the premium. But if the policy is payable to the mortgagee, notice to him is necessary to cut off his rights.”

The Rawl Case, supra, was quite similar to the instant case, and provided that the loss, if any, should be payable to Rawl, as his interest might appear, but subject, nevertheless, to all the conditions of the policy. One of those conditions gave the company the right to cancel by giving five days’ notice, without stipulating to whom the notice should be given. Another provision made all the conditions embraced in the policy apply, even if there was an interest therein in favor of the mortgagee. In discussing the question at issue the Supreme Court of South Carolina used the following language:

“But the question here is not as to the result to the mortgagee of an act or omission of the assured producing a forfeiture of the policy, but what, under a reasonable construction of the terms of the policy, did the insurer undertake to do as a condition of its right to cancel? While the insurance company does not undertake to insure the mortgagee’s interest, it places his name in the contract as one of the parties in interest; and it usually does so with full knowledge that it is of the utmost importance to the mortgagee that he should have notice of the cancellation of the policy, so that he may either obtain other insurance or insist on payment of his debt. In the face of these conditions, it stipulates in general terms that it may cancel the policy ‘by giving five days’ notice of such cancellation.’ Elsewhere in the policy, in almost all instances; the duties imposed are mentioned as duties imposed on the insured; but the burden placed on itself to give notice of cancellation is not expressly limited to the insured. Is it not reasonable to construe the stipulation as meaning that notice shall be given to all persons who are, by the terms of the policy, interested in maintaining it in force? Such a construction seems all the more fair and just when it is considered that the policy is written by the company, and for that reason the language is to be construed most strongly against it. If the meaning is doubtful, or the language is calculated to mislead, the courts will adopt the meaning most favorable to the maintaining of the liability.”

We are satisfied with the reasons given by the court in that case in support of the rule there announced and applied, and we hold that the same rule should apply in this case.

For the reasons above stated, the judgment of the trial court is reversed, and the case remanded for another trial consistent with this opinion.

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


text:
    WEST TEXAS LUMBER CO. et al. v. TOM GREEN COUNTY et al.
    (No. 5637.)

    (Court of Civil Appeals of Texas. Austin.
    June 12, 1916.
    Rehearing Denied June 28, 1916.)
    1. Assignments <&wkey;85 — Peiokity—Time.
    As between creditors holding assignments of amounts due the debtor, the first in point of time prevails.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. &wkey;>85.]
    2. Assignments <&wkey;85 — Constbuction—Paeties — Peiokity. _
    _ Instrument assigning to lender bank all money due the borrower, except that necessary to pay labor or material bills, cannot be construed as an assignment also to holders of claims for labor and materials, and such claimants cannot establish priority through such instrument over other assignments postdating it, but antedating their own.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. <&wkey;>85.]

      3. Appeal and Error i&wkey;1175(2) — Scope — Character oe Judgment.
    Where the facts are fully developed, it is the duty of the appellate court to render such judgment as the court below should have rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4574; Dec. Dig. <&wkey;1175(2).]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Suit by Tom Green County against the Midland Engineering & Construction Company and others. Defendant San Angelo National Bank disclaimed, and from the judgment rendered, defendants West Texas Lumber Company and Copeland & Co. appeal.
    Reversed and rendered.
    Wright & Harris and J. T. Thomson, all of San Angelo, for appellants. Thompson, Knight, Baker . & Harris, of Dallas, and Blanks, Collins & Jackson, of San Angelo, for appellees.

      Application tor writ of error pending in Supreme Court.

   RICE, J.

On the 15th day of April, 1913, Tom Green county contracted with the Midland Engineering & Construction Company for the erection of a reinforced concrete viaduct across the North Concho river in the city of San Angelo, for the sum of $46,888. Upon the completion of said viaduct it was agreed between the county and said company that the county was due said Construction Company a balance on said contract amounting to $2,729.21. During the progress of such work the Engineering & Construction Company became indebted to the San Angelo National Bank for borrowed money in the sum of $5,000, as well as tó the following named parties for labor and material done and furnished during such work, to wit: West Texas. Lumber Company, for the sum of $330.71; J. R. Copeland & Co., $98.65; Colorado River Sand & Gravel Company, $492.65; F. W. I-Ieitman Company, $39.41; Alamo Iron Works, $85; Texas Rolling Mill Company, $212.0,9; Southwestern States Portland Cement Company, $2,844.75; San Angelo Foundry & Machine Company, $40. In order to secure the payment of the above-named defendants, except the San Angelo Foundry & Machine Company and the Southwestern States Portland Cement Company, the Midland Engineering & Construction Company, at different dates, made assignments and transfers of so much of the indebtedness or funds due from Tom Green county to it as was necessary to pay the amounts due them; and the county, desiring to be protected by judgment of the court with reference to the payment of said claims, brought this suit against the Engineering & Construction Company and said several claimants, alleging all the facts above outlined, admitting its indebtedness to the Engineering & Construction Company in the sum of $2,729.21, paying said amount into the registry of the court, and praying the court to determine the rights of the respective parties thereto.

A jury having been waived, and the 'San Angelo National Bank disclaiming any right to participate in the distribution of said fund, a judgment was rendered directing that, after the payment of costs and $100 to the county for the services of its attorneys in bringing this suit, the balance of said fund be prorated between the respective claimants, and judgment was entered in accordance therewith, from which judgment the West Texas Lumber Company and Copeland & Co. prosecute this appeal, insisting that, as their transfers and assignments were prior in point of time to all others, they were entitled to full payment of their respective claims, so that the only question involved in this appeal is as to the correctness of such judgment.

The court seems to have predicated its judgment upon the construction given by it to certain letters addressed by the Engineering & Construction Company to the Southwestern States Portland Cement Company, as well as to the transfer and assignment made by the Engineering & Construction Company to the San Angelo National Bank, which transfer is as follows:

“For value received, we hereby assign, transfer, and set over to the San Angelo National Bank, of San Angelo, Texas, all sums of money due or to become due to us from Tom Green county, Texas, on account of construction of Chadbourne street viaduct, excepting such of said funds as are necessary to pay labor and material bills in connection with the construction of said viaduct.”

Which last assignment antedated those of appellants. The above could only be held to be an assignment to the bank of any balance left over after payment of the labor and materialmen, and could in no sense he held an assignment to said other creditors; and the letters referred to cannot, in any sense, be regarded as an assignment to the Southwestern States Portland Cement Company of any indebtedness due from- the county to the Engineering & Construction Company, but at most are mere acknowledgments of the indebtedness due by the Construction Company to the Cement Company, and expressing a willingness to pay the same; and since appellants’ assignments are prior in point of time to those of any other creditors, the court erred in ignoring such priority and prorating the amount between all of said creditors, because those first in point of time were entitled to priority of payment. See Harris County v. Campbell, 68 Tex. 28, 3 S. W. 243, 2 Am. St. Rep. 467; Foley v. Houston Mfg. Co., 106 S. W. 160; Henke & Pillot v. Keller, 50 Tex. Civ. App. 533, 110 S. W. 783; Harris County v. Donaldson, 20 Tex. Civ. App. 9, 48 S. W. 791; First National Bank v. O'Neal, 176 S. W. 74; Davis v. State Nat. Bank, 156 S. W. 321; Johnson v. Amarillo Imp. Co., 88 Tex. 511, 31 S. W. 503; Beaumont Lumber Co. v. Moore, 41 S. W. 180. See also King v. Cassidy, 36 Tex. 537.

The facts being fully developed, it is our duty to render sucli judgment as the court below should have rendered, which is that, after the payment of the costs and $100 attorney’s fees to Tom Green county for the use and benefit' of its attorneys who brought this suit, then the balance of said fund on hand should be applied to the payment in full of the respective claims of appellants, after which the balance remaining shall be prorated among the other claimants, not including the San Angelo National Bank, which has disclaimed any interest in said fund; and it is so ordered.

Reversed and rendered.
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text:
    SIMPSON et al. v. ALEXANDER.
    (No. 5702.)
    (Court of Civil Appeals of Texas. Austin.
    June 7, 1916.)
    1. Receiveks <&wkey;40 — Appointment—Hearing —Petition.
    The allegations of a petition to which no answer was filed must be taken as true on hearing a motion of plaintiff to appoint a receiver.
    [Ed. Note. — Eor other cases, see Receivers, Cent. Dig. §§ 64-67, 71; Dec. Dig. &wkey;40.]
    2. Receivers <&wkey;3’5(l) — Appointment — Grounds — Notice.
    It is not enough to authorize the appointment of a receiver without notice to allege that the party applying therefor is entitled to the possession of the real or personal property involved, and that it is being wasted, but the petition must further show that the applicant will probably suffer irreparable loss if the receiver is not appointed without the delay necessary in giving notice to the opposite party.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 54-57, 59, 60; Dec. Dig. <&wkey;> 35(1).]
    Appeal from District Court, Burnet County; N. T. Stubbs, Judge.
    Suit by C. H. Alexander against John N. Simpson and others. From an order appointing a receiver on motion of plaintiff, defendants appeal.
    Reversed and rendered.
    See, also, 183 S. W. 852.
    II. W. Allen, of St. Louis, Mo., White, Cart-ledge & Graves, of Austin, and Adams & Stennis, of Dallas, for appellants. Wm. H. Clark, John C. Bird, and D. D. Bird, all of Dallas, for appellee.
   JENKINS, J.

Appellee filed suit in the district court of Burnet county September 18, 1914, alleging, in substance, that he was the owner of certain real estate, water rights, and machinery; that the same had been transferred by him to John N. Simpson and his associates, appellants herein, in trust', to finance the same and pay off an indebtedness thereon owing by appellee; that appellants had repudiated their trust and were claiming that appellee had no interest in said property, but that they were holding the same for other parties; that they were permitting the machinery to waste, and were not keeping a dam situated on said property in repair.

Appellants filed their answer to the next term of the court, January 6, 1915. At said January term the case was continued at request of appellee, and at the May term thereafter it was continued by agreement. On August 10, 1915, appellee presented his application to the judge in chambers for the appointment of a receiver. Said application was granted without notice to appellants, and the receiver was appointed, who qualified by executing a bond for $50,000, as required by said order. There was a modification of said order made by the judge on the 17th of August, which need not be here discussed. The appellants have perfected their appeal from said order appointing the receiver.

This appeal is prosecuted upon two propositions. The first is that the allegations in plaintiff’s second amended original petition, upon which the receivership was granted, are insufficient to authorize the appointment of a receiver to take possession of and hold the property described in the order. The second proposition is that these allegations are insufficient to authorize the appointment of the receiver without notice to appellants, which was done in this case.

As to the first proposition, pérhaps, it is doubtful if the allegations show any necessity for the appointment of the receiver. However, we think that they are sufficient to sustain the action of the court in making such appointment; that is to say, we do not feel authorized to hold that the district judge would have abused his discretion in making such appointment if appellants had been notified and given an opportunity to contest the same.

We do not, however, believe that the allegations of the amended petition, which must be taken as true, no answer having-been filed thereto, are sufficient to have authorized the district judge to appoint such receiver without notice to the appellants. as to the power of the court to appoint a receiver under the general practice in equity, which was done in this case, we quote from 34 Oye. as follows:

“Generally the application for a receiver is addressed to the sound legal discretion of the court, to be exercised as an auxiliary to the ends of justice. But the power is not an arbitrary one, and before judicial action can be justified on the ground of discretion there must be a case calling for the exercise of such discretion.” Page 19.
“The power to appoint a receiver is a delicate one, especially when invoked upon interlocutory ex parte applications, and should be exercised with extreme caution, and only under circumstances requiring summary relief, or where the court is satisfied that there is imminent danger of loss, lest the’ injury caused be far greater than the injury sought to be averted. It should never be exercised in a doubtful case, and when no advantage is to be gained from such appointment, or no injury will result from its refusal. In other words, when it does not appear to be necessary.” Page 21.

See, also, Railway Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L. R. A. 52; Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342; Harris v. Hicks, 13 Tex. Civ. App. 134, 34 S. W. 983.

In Cotton v. Rand, 92 S. W. 267, the court said:

“There is no provision in our statutes requiring notice of the application for the appointment of a receiver, but under the rules of equity in matters relating to the appointment of receivers, which govern, when not inconsistent with the statutes on the subject, it is firmly established that such notice should be given. There are, however, exceptional circumstances under which notice of the application will not be required and an ex parte proceeding allowed. Emergencies arise requiring immediate action,” etc.

In Weems v. Lathrop, 42 Tex. 211, the court said:

“If. in fact, there was no notice or consent, it was irregular to make the appointment, unless the case was one of urgency, where irreparable injury might result from delay.”

We have read the voluminous second amended original petition upon which the receivership appointment was made, consisting of 156 typewritten pages, and we failed to find therein any allegation which shows such an emergency as would justify the appointment of a receiver without notice to appellants. It is not enough to authorize the appointment of a receiver without notice, to allege that the party applying therefor is entitled to the possession of the real estate or personal property involved, and that the same is being wasted, but it must further show that the' applicant will probably suffer irreparable loss if the receiver is not appointed immediately; that is to say, it must appear that in order to avoid such loss it is necessary that the appointment be made without the delay which would be incurred in giving notice to the opposite party. The waste complained of in the instant case is that valuable machinery is being allowed by appellants to lie upon the banks of the Colorado river and go to waste, and that the dam needs repairing and protection from floods and driftwood. But it appears that this machinery has been lying upon the banks of the river for the past three years, and that the dam has needed such protection for a considerable length of time, and it is not shown that any additional injury will probably result from the few days’ delay which would have been necessary to give notice to appellants of the application for receivership. Practically these same conditions existed, as appears from appellee’s pleadings herein, when the case was continued by appellee in the first instance, and again continued by consent; and no reason is shown why appellee could not have applied for a receiver at the times of such continuances.

Again, as to irreparable injury, if the allegations of the amended petition are true, the appellants herein have violated their trust, and are liable to appellee in damages. It is not alleged that they are insolvent, but, on the contrary, that “J. B. Wilson, John N. Simpson, Alexander Sanger, A. B. Clark, and E. L. Flippen, five of appellants, were and are among the wealthiest and ablest and most successful fíñanciers, bankers, and business men in the state of Texas.”

For the reason that the application for the receivership does not show any such emergency as justified the court in appointing a receiver in chambers without notice to appellants, the order of the court appointing such receiver is hereby set aside, without prejudice, however, to the appellee to file another application for the appointment of a receiver and to have the same passed upon by the court, after due notice to appellants, the alleged trustees.

Reversed and rendered.
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author: KEY, O. J.

text:
    DOBIE et al. v. SCOTT, District Judge.
    (No. 5736.)
    (Court of Civil Appeals of Texas. Austin.
    June 10, 1916.
    Rehearing Denied July 1, 1916.)
    1. Mandamus <&wkey;57(l) — When Proper — Official Duty.
    The power of an appellate court to compel a judge of an inferior court to prepare a statement of facts should not be exercised, unless it is made to appear that it was the duty of such judge to prepare a statement of facts.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. &wkey;57(l).]
    2. Statutes <&wkey;206 — Construction.
    In construction of statutory law, every portion of the statute and all of its language shall be given effect, if possible.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. <®¿>206.]
    3. Statutes <&wkey;208 — Construction.
    Subject-matter and entire context of statute are to be considered in construing it.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 285; Dec. Dig. <$¿>208.]
    4. Appear and Error <&wkey;557, 564(3) — Preparation op Record — Duties op Trial Judge.
    Acts 32d Leg. c. 119, § 7 (Vernon’s Sayles’ Ann. Civ. 'St. 1914, art. 2073), as to perfecting record on appeal, does not impose upon the trial judge the absolute duty, either to extend the time for filing, or to approve a statement of facts, if found correct, or, if not, to prepare one himself, after 30 days after adjournment, but vests in him the discretion to do as he chooses, which cannot be controlled by any other court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2480-2482, 2503, 2556; Dec. Dig. &wkey;557, 564(3).]
    5. Appeal and Eror <&wkey;564(5) — Preparation op Record — Duties of Trial Judge.
    Discretion being in the trial judge as to allowing statement of facts filed after 30 days after adjournment, it is immaterial whether parties acted with all possible diligence, if the statement was offered too late.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2504-2506, 2558, 2559; Dec. Dig. &wkey;564(5)J

      Original application for mandamus by J. M. Dobie and others against J. C. Scott, District Judge.
    Application refused.
    Gordon Bullitt, of San Antonio, for re-lators. Perry & Woods, of Franklin, for respondent.
   KEY, O. J.

Relators, J. M. Dobie and others, have made application to this court for the issuance of a writ of mandamus to compel respondent, Hon. J. C. Scott, judge of the Twentieth judicial district, to approve a statement of facts presented to him by re-lators, if found to be correct, and, if not so found, to prepare and approve a correct statement of facts for use by relators on their appeal in a certain cause, which they have properly appealed to this court. Respondent has filed an answer, which raises other questions besides the one discussed in this opinion; but, as the latter question is decided against relators, we deem it unnecessary to consider the other matters which relate to the question of diligence.

The following facts axe undisputed: An order was entered upon the minutes of the district court allowing 60 days after adjournment within which to prepare and file a statement of facts and bills of exception. Relators prepared a statement of facts and presented it to the attorneys on the opposite side within the time allowed by the order mentioned, and they declined to approve the same. Thereafter, but 16 days after the expiration of the time fixed by the order referred to, relators presented their statement of facts, properly certified to by their attorney, to respondent, who declined to consider same, because it was presented to him too late; and on the same day relat-ors presented to respondent a written application for a further extension of time for preparing and filing a statement of facts, which application respondent refused to grant.

While an appellate court has the power to compel a judge of an inferior court to prepare a statement of facts, when it is shown that it was his duty to do so, and that he has failed to perform that duty, nevertheless, such power should not be exercised unless it is made to appear that it was the duty of such judge to prepare a statement of facts. As we understand relator’s counsel, he concedes the correctness of the propositions stated, but contends that the duty referred to was imposed upon respondent by the seventh section of the act of the Thirty-Second Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073) providing for the appointment of official stenographers, and the method of making up and filing statements of facts and bills of exception, approved March 31, 1911. The section referred to reads as follows:

“Sec. 7. When an appeal is taken from the judgment rendered in any cause in any district or county court, the parties to the suit shall be entitled to any (and) they are hereby granted thirty days after the day of adjournment of court in which to prepare or cause to be prepared, and to file a statement of facts and bills of exception; and upon good cause shown, the judge trying the cause may extend the time in which to file a statement of facts and bills of exception: Provided, that the court trying such cause shall have the power in term time or vacation, upon the application of either party, for good cause, to extend the several times as here-inbefore provided for the preparation and filing of the statement of facts and bills of exception, but the same shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the appellate court within the time prescribed by law, and when the parties fail to agree upon a statement of facts, and that duty devolves upon the_ court, the court shall have such time in which to do so, after the expiration of thirty days, as hereinbefore provided, as the court may deem necessary, but the court in such case shall not postpone the preparation and filing of same, together with the transcript of the record, in the appellate court within the time prescribed by law: Provided, if the term of said court may by law ’ continue more than eight weeks, said statement of facts and bills of exception shall be filed within thirty days after final judgment shall be rendered, unless the court shall by order entered of record in said cause extend the time for filing such statement and bills of exception: Provided, further, that when the parties fail to agree upon a statement of facts, the judge shall not be required to prepare such statement of facts, unless the party appealing, by himself or attorney, within the time allowed for filing, shall present to the judge a state-men^ of facts, and shall certify thereon, over his signature, that to the best of his knowledge and belief, it is a full and fair statement of all the facts proven on the trial: Provided, that any statement of facts filed before the time for filing the transcript in the appellate court expires, shall be considered as having been filed within time allowed by law for filing same.”

Counsel for relators contends that, inasmuch as the last sentence in that section declares “that any statement of facts filed before the time for filing the transcript in the appellate court expires shall he considered as having been filed within time allowed by law for filing same,” it is the duty of the trial judge to consider a statement of facts presented to him at any time before the expiration of the time for filing the transcript in the appellate court, unless it be presented too late to allow time for its proper consideration. We cannot approve that construction of the statute, because it would render nugatory and of no effect every portion of that section which precedes the last sentence. It is a well-established rule of construction of statutory law that, if possible, every portion of the statute and all of its language shall be given effect. In construing this statute that rule can be complied with by holding that it was the legislative intent that the trial judge should have the absolute right to fix a time limit after which he would not consider a statement of facts presented to him or prepare one himself; in other words, that he should have the discretion to refuse to consider the matter of making up a statement of facts after the 30 days allowed by the statute, but should have authority, if he chose to exercise it, to make or approve a statement of facts after the time allowed by the statute or by an order made by him, but that he should not be compelled to do so. All statutes that have been enacted with reference to the extension of time for filing statements of facts have declared that the court or judge may extend the time, and none of them has used the word “shall,” which indicates that it was the legislative purpose to leave the matter absolutely to the discretion of the judge.

We are aware of the fact that the use of the word “may,” instead of “shall,” does not in all instances determine whether the statute should be construed as mandatory or discretionary. The subject-matter of the legislation and the entire context of the statute are also to be considered; but their consideration in this instance tends to support the construction that the statute here involved, in authorizing the trial court or judge to extend the time and to approve or make a statement of facts after the expiration of the time fixed, was not intended to be mandatory. For instance, as heretofore pointed out, if the last sentence in section 7, which authorizes the filing of a statement of facts at any time within the time prescribed for filing the transcript in the appellate court, should be construed as making it compulsory upon the trial judge to approve or make a statement of facts after the expiration of the time fixed by him for that purpose, then it would be a useless ceremony to obtain an order granting an extension of time, and the result would be that, without asking for such extension, the party appealing could compel the trial judge, after the expiration of the 30 days fixed by a preceding portion of section 7, to approve or prepare a statement of facts. Furthermore, no reason is perceived why the statute in question does not apply to cases carried up by writ of error, in which event at least one year would be allowed in which to file the transcript in the appellate court. Now, is it reasonable to suppose that, when the Legislature did not specifically so declare, it nevertheless was their intention to absolutely require trial judges, when applied to 11 months after the case was tried, to prepare a statement of facts? We do not think so. The difficulties involved in the performance of such a duty, after the lapse of such a period of time, and the interference which might result in the performance of other official duties, require ■ a holding that, in the absence of a statute specifically so declaring, such duties have not been imposed upon trial judges.

The case nearest in point to which our attention has been called is Harris et al. v. Camp, District Judge, 148 S. W. 597, decided by the San Antonio Court of Civil Appeals. Like this case, that was a petition for a writ of mandamus to require a trial judge to prepare a statement of facts. The application was refused, and, among other things, the court said:

“Nor are applicants aided in this matter by the final clause of the act of 1911 (Gen. Laws 1911, p. 266), which states: ‘Provided that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within the time allowed by law for filing same.’ This would seem to be authority for us to consider a statement actually filed within 90 days; but here none has been filed. Such provision does not impose on the trial judge the duty of making or approving' one presented to him after the time granted for that purpose has expired.”

Counsel for relators contends that the Harris Case is distinguishable from this case, because of the fact that the application to the tidal judge to prepare the statement of facts was not made until the last day for filing the transcript, and therefore there was a lack of diligence. It may be true that the action of the appellate court in refusing to grant the writ of mandamus could have been based solely upon the ground referred to; but it seems that that court preferred to rest its decision upon the other ground, which is the construction which we place upon the statute. So our conclusion is that the statute in question did not impose upon respondent the absolute duty, either to further extend the time or to approve re-lators’ statement of facts, if found correct, and, if not, to prepare one himself, and that, while he had the discretion so to do, if he saw proper, that discretion was vested absolutely in him, and is not subject to control by this or any other court.

This renders it unnecessary to pass upon the question of diligence upon the part of relators in the preparation and presentation of their statement of facts, because we hold that the trial judge’s discretion in-granting or refusing an extension of time, and in refusing to act after the expiration of the time fixed by him, is not subject to review or control by this court, even if it be conceded that relators have exercised all possible diligence.

Application refused.
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes