author: PBLPHREY, Chief Justice.

text:
    MORGAN v. HARDY et al.
    No. 2776.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 19, 1933.
    Rehearing Denied Feb. 16, 1933.
    J. Louis Shook and Smithdeal, Shook, Spence & Bowyer, all of Dallas, for appellant.
    J. E. Gilbert and Bailey, Nickels & Bailey, all of Dallas, for appellees.
   PBLPHREY, Chief Justice.

This suit was instituted by appellees, as plaintiffs, against appellant, as defendant, in the 101st district court of Dailas county, Tex., on July 21, 1928.

While the correctness of some of the findings of fact made by the trial court are questioned, yet we think they present a reasonably fair statement of the facts and we shall quote them here and later discuss those portions attacked. They are:

“1. That defendant, J. Doug Morgan, on February 12th, 1925, contracted with Hardy Light Company, a corporation, for the purchase and shipment to defendant at Jacksonville, Texas, from the factory of Universal Motor Company of Oshkosh, Wisconsin, the electric plants described in the pleadings to be delivered at destination not later than March 5th, 1925, and for the price and sum of $3,125.00, of which $1,000.00 was paid at the time the order was given.”

“2. That shipment was made of the plants and delivered and accepted.”

“3. That on February 24th, 1925, defendant executed and delivered four promissory notes payable to Hardy Light Company, a corporation, each in the sum of $200.00, with interest at 10% per annum fram maturity, and maturing respectively in 30, 60, 90 and 120 days after date, and providing for 10% attorney’s fees, on which notes defendant’s address is given at Corsicana, Texas.

“That the note first maturing was paid at maturity, and that on May 4th, 1925, $98.00, and May 15th, 1925, $50.00 was paid and credited on the second maturing note and nothing more was paid on said notes.”

“4. That on or about the date of the execution of said four notes and before maturity of either of them, the same were endorsed in blank by the payee and sold to W. T. Hardy, one of the plaintiffs herein for $750.00, and the said sum so paid by him was paid by Hardy Light Company to the plaintiff, Universal Motor Company. W. T. Hardy bought said notes and paid therefor in good faith and without knowledge or notice of any defects therein or defense thereto, and he was not in anywise connected with the Hardy Light Company.

“That said W. T. Hardy is still the owner and holder of the unpaid notes and is entitled to recover the amount due thereon at this date, which with attorney’s fees, aggregates $833.10.”

“5. That on February 28th, 1925, defendant executed and delivered to the Hardy Light Company, a corporation, twenty-eight (28) trade acceptances of that date, maturing respectively one on Tuesday of each week, all having been accepted by defendant on March 3rd, 1925, each being in the sum of $50.00, except that maturing December 29th, 1925, which is for $46.75.” (Here follows a description of the trade acceptances.)

“6. That the 15 acceptances first maturing, Nos. 750 to 764, inclusive, and $40.65 of No. 765, of said acceptances aggregating $790.65, belonged to plaintiff, Universal Motor Company, a corporation, and $9.35 of said No. 765, and the remainder of said trade acceptances aggregating $606.10 principal, -with interest at 10% from their respective due dates belong to J. B. Hardy, one of the plaintiffs, and the amount due thereon, with interest and attorneys’ fee aggregates $1085.35, and all were endorsed in blank and delivered to him before maturity.”

“7. That on the 3rd of March, 1925, the defendant, J. Doug Morgan, executed a chattel mortgage of that date in favor of Hardy Light Company, Inc., to secure the sum of $2,196.75 due said Hardy Light Company, Inc., evidenced by the four notes and twen-ey-eight trade acceptances above described, one due on Tuesday of each week commencing June 30th, 1925, with 10% from maturity, to the total amount of $1396.75, and which mortgage was upon two Universal 12½ K. W. Electric Lighting Plants wired in parallel, described as follows: (here follows description) which property was to remain in Texas, except from time to time might be removed upon the written consent of the Hardy Light Company, Inc.”

“Said mortgage contains the usual provisions as to foreclosure and taking possession by mortgagee, or its assigns, for the satisfaction of said debt, with 10% attorney’s fees if placed in the hands of attorney, or collected through probate court.”

“8. That at some date not disclosed defendant, Morgan, without the written consent of Hardy Light Company, Inc., or any of the plaintiffs, carried said' mortgaged plants out of the state of Texas and into the state of Iowa, and to Cedar Rapids therein, and then stored the same in his own name, where they remained until some time not stated, but between the time this suit was filed and the trial thereof, when by agreement between defendant Morgan and plaintiff Universal Motor Company, a corporation, said Morgan surrendered and delivered possession of said two plants to said Universal Motor Company, without the knowledge or consent of said W. T. or J. Y. Hardy, the holders and owners of said notes and the trade acceptances as above found, and plaintiff Universal Motor Company, a corporation, accepted possession of said plants and relinquished all claim against said Morgan.”

“9. That the plaintiffs used and exercised due diligence to procure service of citation upon defendant Morgan from the beginning of this suit, and until October 1931, when service was procured by one of the plaintiffs taking citation in person to the sheriff of Delta county, Texas, and there pointing out the defendant.”

“That defendant was a transient person, and had during the pendency of this suit, and has his domicile and place of residence in Savanna, in Carroll county, state of Illinois.”

After being served in October, 1931, appellant answered by general demurrer, general denial, a plea of the four-year statute of limitations, a plea of settlement, and prayed for a judgment over against Universal Motor Company in case of judgment against him in favor of the Hardys.

The trial court rendered judgment in favor of W. T. Hardy and against appellant in the sum of $833.10; in favor of J. V. Hardy against appellant for $1,085.35; that Universal Motor Company take nothing; that appellant take nothing on his cross-action against Universal Motor Company; and that the chattel mortgage be foreclosed for the satisfaction of the amounts due W. T. and J. V. Hardy.

This appeal has been perfected from said judgment.

Opinion.

In his ten propositions appellant attacks the correctness of the judgment on the following grounds: (1) That the finding of the court that appellees exercised due diligence to procure service of citation upon appellant was not a finding of fact but merely a conclusion of the court and therefore insufficient to support judgment based thereon; (2) that the evidence was wholly insufficient to support such finding; (3) that the facts shown were insufficient, as a matter of law, to amount to diligence such as would toll the statute; (4) that the court having found that appellant was a nonresident, transient person, no diligence was shown in the absence of a showing that appellant was cited by publication; (5) that the finding of the court that appellant was a transient person and had his residence in Illinois was without evidence to support it; and (6) that the court was without power to foreclose a lien on property which was without the state at the time suit was filed, especially where the party in possession was not an adverse party to those asserting the lien.

The attorneys of the parties entered into the following agreement at the trial: “It is agreed by and between the attorneys representing the respective parties hereto that the instruments sued on were correctly described in the findings of facts, and that the judgment in favor of J. Y. Hardy and W. T. Hardy is correct, unless the right to recover thereon is defeated by plea of limitation of defendant J. Doug Morgan.”

Appellant’s assignment questioning the judgment foreclosing the chattel mortgage raises a question as to which he cannot complain. His pleadings show that he surrendered the property to the Universal Motor Company, therefore, a judgment of foreclosure against said property could not injuriously affect him. 3 Tex. Jur. § 728, p. 1026.

Our statute of limitations (Rev. St. 1925, art. 5527) as to actions sucli as we have under consideration reads:

“There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

“1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.”

The filing of a suit prior to the completion of the limitation period automatically interrupts the course of limitation, provided the suit is filed with the intention of prompt issuance of citation and the exercise of diligence to procure service thereof. The mere filing of the suit is not sufficient. Due diligence must be exercised to have process issued and served, otherwise the running of the statute will not be tolled. Austin, Banking Com’r v. Proctor (Tex. Civ. App.) 291 S. W. 702, and authorities there cited.

While it is true that the holdings in the above cases were not based upon this particular statute, yet, what is there said applies with equal force to the statute here under consideration. Therefore, in the present case, if appellees did not use due diligence in having. process issued and served upon appellant, he was entitled to have his defense of limitations sustained.

The testimony of J. V. Hardy shows that he initiated the negotiations for the sale of the lighting plants at Corsicana, Tex., where appellant was getting ready to conduct this show, that he had heard several times that appellee had headquarters at Jacksonville, Tex.; that he had heard within the year or two before he was testifying that appellant ■ had turned the 'plants back to the Universal Motor Company; that the plants had been in a warehouse in Cedar Rapids, Iowa, for a number 'of years and that he had tried to get hold of them; that he went several times to Jacksonville, Nacogdoches, and Lufkin and once to Texarkana for a week, once to Brown-wood where appellant’s show was being advertised in an effort to locate appellant in connection with having process served on him; that he never saw him except in Jacksonville in 1925 or 1926; that he heard of him and his shows but could never locate him after that; that he sent a Mr. Mixon to Jacksonville, Mr. Strong to Livingston and probably to Trinity, also to Atlanta where appellant’s show was; that in March, 1928, he spent three days in Texarkana and did not locate him; that he had a citation with him at each place; that he had some correspondence with appellant from Cedar Rapids, the first or second year after the note and mortgage were executed; that two of the trips were made by him specially to locate appel-, lant and once or twice on other business and once he went hunting.

The witness Stephens testified that he had had instructions from J. V. Hardy to look out for and try to ascertain appellant’s whereabouts; that he went to Snyder and Sweet-water with a citation that Judge Gilbert had sent to be served at Sweetwater; that he spent two days with the sheriff and was unable to locate appellant with his show there; that he then went to Pittsburgh and Sulphur Springs and did not find him at either of those places; that' he made his first trip in the latter part of the summer of 1928; 'and went to Pittsburgh and Sulphur Springs later in the fall; that he made no other trips.

W. T. Hardy testified that the only effort he had made was to locate appellant’s shows which he finally did in the fall of 1931. at Cooper; that then was when service was had.

Judge Gilbert, attorney for appellees, testified that the suit was filed on July 21,1928; that on July 23d citation was issued and sent to the sheriff of Nacogdoches county but it seems never to have been returned; that another citation was issued on September 10th; and service was had January, 1932; that he wrote a letter to Mr. Hardy on December 22, 1930, and another on January 6, 1931, to see if he could get any trace of appellant’s shows; another on the 9th; wrote a letter on December 13, 1929; that he had a letter from the sheriff of Nacogdoches county stating that appellant had a farm near Jacksonville, Cherokee county; that he did not remember if any citation was issued to Cherokee county but that they sent a man down there to locate him and he was not there; that in the citation issued September 10th, the name of the county was left blank so appellant could be served wherever found; that all the citations issued in the case were: July 21,1928, to Nac-ogdoches county, one on September 10, 1928, and the one that was served.

Appellant testified that he had lived at Jacksonville, Cherokee county, Tex., for about thirteen years; that he was engaged in the show business; that he stored his shows during the winter months at Jacksonville; that he stored the lighting plants in Cedar Rapids, Iowa; that upon agreement that he would not be held liable for anything he turned them over to the Universal Motor Company; that he had not been out of the state of Texas in the spring or fall for twelve or fifteen' years; that during the winter while his show was stored at Jacksonville he was out a good deal of the time making preparations for the next season; that during the entire year he was not in any one place very long but was in east Texas about eight months out of each year; that he advertised in what is called the Billboard, a show paper, the routing of his show each year; that he opened and closed the season each year in Jacksonville; that such fact was advertised. , .

= On cross-examination he. testified to executing a deed of trust in 1927, in which there appeared this recital: “That I, J. Doug Morgan of the county of Carroll, state of Illinois, hut now temporarily of the state of Texas, county of Cherokee”; that the recital was true; that on March 30, 1931, he and his wife executed an instrument containing this recital: “We have never maintained a home in Texas and we have no homestead rights in the above described property”; that the statement was true; that he executed a deed of trust on March 14, 1925, containing the following statement: “That we, J. Doug Morgan and wife, of Savanna, Carroll county, Illinois, but now temporarily of Jacksonville * * * ”; that the statement was correct; that he never lived in Carroll county; that his wife had property and her home that her mother left her there; that in order to get a loan in Texas they made this statement in the deed of trust: “The above described tract of land does not now and has never constituted any part of our homestead, being in the city of Savanna, county of Carroll, state of Illinois”; that they had been living and had their stuff stored at Jacksonville and that it had been the only home they had maintained; that they had never maintained a home in Savanna.

It will be seen from the above that appellant by his own admission was not in one place very long at a time, therefore, that getting personal service on him was not a simple matter.

The trial court was authorized to disregard any part or all of appellant’s testimony, and, in deciding the question of diligence, look only to the evidence of appellees in connection with the facts and circumstances.

The question as to whether appel-lees had been diligent was certainly one of fact and the court’s finding thereon was not an opinion or conclusion as asserted by appellant.

The contention that by virtue of the court’s finding that appellant was a nonresident diligence could not be shown without a showing that he had been cited by publication cannot be sustained. The record shows that appellant spent a considerable part of his time traveling over Texas, and appellees had a right to have personal service on him if such could be secured by the use of due diligence.

There is nothing in the law which prohibits personal service being had on a nonresident, if he can be located in the state.

Furthermore, it is not shown that appellees knew appellant was a nonresident during most of the time when they were attempting to get personal service on him. . ,

After a careful study of the record we cannot say that the record here shows, as a matter of law, that due diligence was not exercised by appellees to have process served on appellant. Therefore, it was a question of fact which the trial court has found against appellant, and this court is without authority to disturb it.

The judgment of the trial court is accordingly affirmed.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    GAINES v. STEWART.
    No. 7798.
    Court of Civil Appeals of Texas. Austin.
    Jan. 18, 1933.
    Rehearing Denied Feb. 8, 1933.

      Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    Upton & Upton, of San Angelo, for appellee.
   BAUGH, Justice.

Suit by Stewart against Gaines for damages to his car and for personal injuries resulting from a collision between his car and a truck owned by Gaines and being operated over a public highway in Tom Green county. Upon the jury’s answers to special issues, judgment was rendered in favor of Stewart for $3,604; hence this appeal.

Appellant’s first proposition is that it was error to permit Dr. Nibling, who treated Stewart in May, 1929, for his injuries at the time same were received, to testify as to what Stewart told him in May, 1930, approximately one year thereafter, about pains he was then suffering in his knees and legs; because such examination and statements so made in 1930 were not for purposes of treatment, but for the purpose of enabling Dr. Nibling to testify in this suit concerning the injuries theretofore received, the continuing nature of same, and the probable future disability of Stewart resulting therefrom.

We think this contention should be sustained. Dr. Nibling testified that he did not examine Stewart in May, 1930, for purposes of treatment, but to enable him to testify as a witness; and that he had discharged Stewart from treatment for his injuries nearly a year before. It does not appear that Dr. Nib-ling attempted to discover whether such pains existed in Stewart’s legs other than by Stewart’s own statements to that effect. These facts and circumstances we think bring such testimony under condemnation of the rule against hearsay and self-serving declarations. T. & N. O. Ry. v. Stephens (Tex. Civ. App.) 198 S. W. 396 (writ dismissed) is a case directly in point. In Wheeler v. Ry. Co., 91 Tex. 356, 43 S. W. 876, the same issue was raised, and, though the Supreme Court declined to pass upon it because not properly presented, the court did intimate that such testimony was inadmissible. And in M., K. & T. Ry. Co. v. Johnson, 95 Tex. 411, 67 S. W. 768, a state of facts substantially identical with the instant case, the writ was granted upon the exact question here presented. While the-court held in that case that the issue was not properly raised, it clearly committed itself to the view that such declarations under such circumstances are not admissible. A very complete and exhaustive set of annotations from numerous state and federal decisions on this question is to be found in 67 A. L. R. 10. See, also, 17 Tex. Jur., §§ 245 and 272, pp. 589 and 649.

The test in such case appears to be whether the motive and opportunity to fabricate without detection the symptoms complained of is presented. Undoubtedly a qualified physician can testify as to symptoms and conditions of injury or disease made known to or discovered by him in his treatment of his patient. Or to such conditions as he finds in the patient from his own independent examination of him. But where an injured party, for the express purpose of qualifying a physician to testify in his behalf about matters on which such party seeks a recovery, makes statements as to subjective matters of pain, suffering, etc., not disclosed to the physician by other and independent means, there exists both motive and opportunity for the patient to magnify or feign injuries. Under such circumstances his statements become clearly self-serving and hearsay, and should not be admitted.

The next proposition complains that it was error to render judgment against appellant because the issue of ownership of the truck was not submitted to the jury. There was no error in this. It was not a disputed issue. The evidence is uncontradicted that appellant owned the truck in question and that Stayton, the driver at the time of the- collision, was his servant acting within the scope of his employment. It was not necessary, therefore, to submit such issue to the jury. Livezey v. Putnam Supply Co. (Tex. Civ. App.) 30 S.W.(2d) 902 (writ ref.); Emergency Clinic v. Continental Inv. Co. (Tex. Civ. App.) 41 S.W.(2d) 640, 641; Berryman v. Norfleet (Tex. Civ. App.) 41 S.W.(2d) 722; Stedman Fruit Co. v. Smith (Tex. Civ. App.) 45 S.W.(2d) 804; Article 2190, Rev. St. 1925, as amended by chapter 78, p. 120, Acts Reg. Sess. 42d Leg. (1931), Vernon’s Ann. Civ. St. art. 2190. This was not an independent ground of recovery, but merely one of the elements in plaintiff’s cause of action. No request was made that it be submitted. See Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; I. T. A. v. Bettis (Tex. Civ. App.) 52 S.W.(2d) 1059, 1061 (writ ref.)

Appellant’s next proposition raises the issue of misconduct of the jury, in that one juror informed the others that under the law Gaines had to carry insurance on his truck, and that the insurance company, and not Gaines, would have to pay whatever judgment Stewart recovered. This statement was also reaffirmed as true by another juror. Three jurors testified on motion for rehearing that the matter of Gaines having insurance was discussed in the jury room. Two of these jurors, Rice and Key, denied that it in any manner influenced their verdict. The juror Schrum, while he testified on cross-examination that he would not render a larger verdict against an insurance company than he would against an individual, also testified, among other things, with reference to the matter of insurance discussed in the jury room, as follows:

“Q. Is it not a fact you were influenced in how you would answer those questions by considering whether or not Mr. Gaines had insurance? A. To be plain, I hung the jury for awhile on account they were giving him more than I thought we had evidence to justify.

“Q. Why did you agree to the sum you did agree to? A. The main thing was, they were all against me on it.

“Q. What other reason? A. I thought, and knowing they always carried insurance — I knew according to law he had to carry insurance — and at the start nobody seemed to know whether they did or not, and I had in my mind that they did.”

And on cross-examination further:

“Q. You gave in because there were eleven against you? A. I gave in to that and what I had in mind too.

“Q. You would not go into the jury box and willingly render judgment against one party more than you would another? A. No, sir.

“Q. In agreeing to the sum you did agree upon, were you or not influenced by your belief that Mr. Gaines had insurance? A. I knew it was the law for them to have it.

“Q. In agreeing to that sum did you or not , consider that fact? A. I cannot say positively, but it is bound to have had a little influence on me.”

It has been repeatedly held that injection into the jury’s deliberations of extraneous matters not in evidence and prejudicial in character is ground for reversal, unless it appears that no injury to the losing party resulted. And this is particularly true where the jury is informed that some insurance company, and not the defendant named, is to bear the loss, and such information, not in evidence, influenced the jury’s verdict. See D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661, 663, and cases there cited and discussed; Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; Great West Mill & El. Co. v. Hess (Tex. Civ. App.) 281 S. W. 234; Red Star Coaches v. Lamb (Tex. Civ. App.) 41 S. W.(2d) 523; S. H. Kress & Co. v. Dyer (Tex. Civ. App.) 49 S.W.(2d) 986, 989.

Injection of such extraneous matters, prejudicial in nature, by one or more of the jurors, clearly constitutes misconduct; and where there is any reasonable doubt as to its injurious effect the verdict should he set aside. Casstevens v. T. & P. Ry. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89; Moore v. Ivey, supra; Small v. Taylor (Tex. Civ. App.) 54 S. W.(2d) 151, 153. Not only was a doubt raised as to other jurors, but we think it clearly appears from the above-quoted testimony of the juror Schrum that his verdict was influenced by the purported information that insurance protected the defendant against liability.

Appellee contends that, since the evidence showed that appellant operated three trucks under a permit, he was required by law to carry liability insurance under Acts 42d Leg. (1931) p. 480, c. 277, § 13 of amendments to article 911b, Vernon’s Ann. Civ. St.; that the jurors were presumed to know the law; and that, therefore, no misconduct should result from their discussion of what the law requires. Numerous cases are cited holding that in such cases, where insurance is carried, the insurance company is a proper party to the suit.

However, the record does not sustain appel-lee’s contention. The act cited applies to ‘‘motor carriers” and “contract carriers” for hire over the public highways. The evidence in this' case shows that Gaines was in the produce business, owned the trucks in question, and hauled his own produce over the highways. There was no evidence that he hauled anything for others for hire. If not, then the requirement of the statute cited that he carry insurance did not apply to him. Under such circumstances and the settled line of decisions, we think the trial court abused his discretion in overruling appellant’s motion for a rehearing.

Eor the errors pointed out, the judgment must; be reversed and the cause remanded. The other error complained of by appellant need not occur upon another trial.

Reversed and remanded.


author: DUNKLIN, Justice.

text:
    ASKEY v. OLIVER CHILLED PLOW WORKS.
    No. 12734.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 19, 1932.
    Rehearing Denied Jan. 7, 1933.
    John D. Poulter, of Fort Worth, for plaintiff in error.
    Burgess, Burgess,' Ohrestman & Brundidge, of Dallas, for defendant in error.
   DUNKLIN, Justice.

This is the second appeal of this case; the disposition of the first appeal being by the Court of Civil Appeals at Eastland, as shown in 22 S.W.(2d) 743, 744. On the former appeal the suit was instituted by Askey against the Oliver Chilled Plow Works for the sum of $2,416.93 for conversion of certain promissory notes and farming implements. .The judgment on that appeal was reversed and the cause remanded because of lack of proof to establish the alleged conversion. After the remand of the case, plaintiff filed a second amended original petition and he has prosecuted an appeal from the judgment of the trial court sustaining a general demurrer to that petition and dismissing his suit, after he had refused to amend.

According to allegations in plaintiff’s petition he was engaged in the retail hardware implement business in the city of Decatur, and that he entered into a contract in writing with the defendant, by the terms of which it agreed to sell and did sell certain farming implements and machinery to him, which he in turn sold at retail to his farmer customers and received from them in part payment therefor some 97 promissory notes which he delivered to the defendant as collateral security for his indebtedness to it, and which defendant had wrongfully converted to its own use, without accounting to him for the balance due him after deducting therefrom the amount of his indebtedness to it, to wit, the sum of $602. It was alleged that the written contract, under which the parties dealt throughout all the transactions and in which contract defendant was designated as the first party and plaintiff as the second party, embodied this provision:

“Title to and ownership of all goods furnished by first party to second party on hand with and not sold or otherwise disposed of at retail by second party, in the ordinary and usual course of trade, shall remain vested in first party until all accounts pr evidence of debts due therefrom to first party shall be fully paid, and in addition thereto to secure all claims and demands against second party held by first party, or their assigns, whenever created, whether evidenced by open accounts, or notes, said first party reserves a lien upon all goods furnished by them to second party heretofore, now 0» hereafter and on hand with second party, or not Sold by second party at retail in the regular course of business.”

The contention presented in the amended petition is that the quoted provision of the contract showed an agreement to sell to the plaintiff all merchandise furnished to him with the retention thereon of a mortgage lien in favor of the defendant to secure any and all indebtedness which plaintiff might owe to defendant accruing under and by virtue of the terms of the contract. And in the amended petition the claim was made that the 97 prom-, issory notes which plaintiff took in the sale of the machinery to his customers were delivered to defendant as collateral security only. Attached to the petition as an exhibit was a list of all of those notes with the names of the respective makers and the amount of each, aggregating more than $4,000, all of which plaintiff alleged defendant had collected and converted to its own use; and plaintiff sought a recovery of the balance remaining of that sum after deducting there-from as a credit the sum of $602 which plaintiff admitted he owed to defendant.

As shown in the opinion of the Court of Civil Appeals on the former appeal of this case, the suit as theretofore instituted was to recover the value of 39 promissory notes representing purchase money for farming implements furnished to plaintiff by defendant and which notes plaintiff had transferred to defendant by written assignment, copied in that opinion, containing recitals, in substance, that the same were made as collateral security for plaintiff’s indebtedness to defendant. The suit was for damages for the wrongful conversion of those notes which it was alleged belonged to plaintiff; and also for conversion of three farming implements belonging to plaintiff of the aggregate value of $39.50; and the judgment of the trial court awarding plaintiff the damages so claimed was reversed on the first appeal. In the opinion of Justice Leslie on that appeal, this is said:

“The very gist of an action for conversion is in the right of property or possession, and such an action cannot be maintained for the conversion of chattels by one who does not own the same or have an interest therein, or the right of possession. [Citing cases.]

“With these principles in mind, we pass to a direct consideration of the testimony relied on by the plaintiff. It discloses that he at no time, in his pleading or testimony, claimed to be more than a local agent of the defendant, selling machinery and implements in a locality for a commission. He testified that the notes he here charges to have been converted were turned over by him to the defendant as collateral security on his obligations to them. In disposing of the implements the plaintiff appears to have taken in part payment therefor numerous customers’ notes. Such are the notes here alleged to have been converted. In delivering them to the defendant, he made a character of' written assignment in this language: [Then follows a copy of the written assignment indorsed on the several notes reciting that the same were transferred to the defendant company as collateral security for plaintiff’s indebtedness to the defendant.]”

The opinion then sets out the following testimony given by the plaintiff on the trial, with the final conclusions of the court with respect to the issue of conversion;

“ ‘All the goods I handled of the Oliver Chilled Plow Works was on the consignment basis. * * * I did not object when they came up here collecting the notes, renewing the notes, and repossessing machinery. I' wanted the notes collected, and I wanted the' machinery sold and the proceeds applied on the notes. I went with Mr. Sadler. He took the notes I had taken from the various farm-erg. * * * i had this stuff for sale on commission. * ⅜ * The contract was made back in 1924. At that time I made a commission contract with them. * * * They did not sell me goods just as a wholesaler. * ⅜ * .They said they would put the goods up here and for me to sell them; if I sold them on a credit, to send them the notes and' they would collect them. That is the reason I turned the notes over to them. They said they would do the collecting. I would not have let them take those goods (new machinery) out of the house, but the goods were theirs. The only interest I had in them was the amount of my commission. * * * They shipped the goods up here; they were their property.’

“It would serve no useful purpose to further lengthen this opinion by quoting the testimony relied upon by the plaintiff. So far as the plaintiff’s right of recovery for conversion of the 39 promissory notes is concerned, the evidence, to our mind, is conclusive against the plaintiff’s ownership thereof, or any part thereof, as well as his right to possession of the same at the time of the Alleged conversion. He failed to prove such' general or special property right in the notes as would entitle him to a judgment. The verdict and judgment based upon the conversion of the notes we hold to be unsupported by any testimony. We so hold upon the authority of Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. Further, and in any event, we hold that the evidence, if any, is insufficient to support the judgment, based upon the conversion of the notes, and the verdict and judgment are in fact against the great weight and preponderance of the testimony.

“As to the three implements involved in the suit, we are of the opinion there is some evidence tending to support the charge of conversion.”

The final conclusion reached was thus stated:

“We doubt the sufficiency of the petition as against a general demurrer, but no point presents the ruling of the court thereon. In view of a reversal and remand of the cause, we suggest that the trial court direct that both the plaintiff and the defendant replead their respective grounds of recovery and defense. Such, in our judgment, is necessary for a fair presentation of the issues and a proper development of the lawsuit, which, upon the present record, bears more of the earmarks of a suit for 'an accounting than for conversion.”

It thus appears that there was a specific and final determination that title to the 39 notes in controversy was vested in the defendant and not in the plaintiff, and by reason of that fact the defendant was not guilty of the conversion charged against it. Plaintiff did not exercise his legal right to apply for a writ of error from that decision but proceeded to follow the case in the trial court to which it was remanded and there to try the case anew on an amended petition, presenting the same issue of title and conversion as had already been determined. On this appeal he again contends that the legal effect of the original contract between the parties and the transfer of the notes in controversy to the defendant was to vest title in him to the merchandise and notes in controversy, subject only to a chattel mortgage lien thereon to secure the defendant in any indebtedness which he might owe to it and that such title was a sufficient basis for his claim of conversion alleged in the amended pleading. However, his right to assert that claim is precluded by the former decision of the Court of Appeals which became final in the absence of any application for a writ of error to the Supreme Court.

While plaintiff’s petition upon which he recovered the former judgment does not appear in the record before us, yet it is apparent from the allegations in the amended petition and the recitals in the opinion of plaintiff’s pleadings on the former trial, that the 39 notes mentioned in that opinion and the 97 notes alleged in the amended petition all •grew out of the same original contract between the plaintiff and the defendant, and necessarily all of them were of the same legal status with respect to title thereto; and necessarily title to the goods furnished to plaintiff had the same legal status.

■ Benavides v. Garcia, 290 S. W. 739, 740, by the Commission of Appeals, was a suit to construe a will, the construction of which had already been settled in another suit between other parties, and it was held that under the doctrine of stare decisis, the construction of the will by the Court of Civil Appeals in the former suit (Rossetti v. Benavides, 195 S. W. 208) was conclusive in the determination of the same issue in» the second suit. After referring to the decision of the Court of Civil Appeals in the first suit and noting a denial of a writ of error by the Supreme Court therein, the Commission of Appeals had this to say:

“We think that decision governs this case and calls for an identical construction of the will. This conclusion is not predicated upon any theory or rule of res adjudicata or estop-pel whatever. It is rather based upon the doctrine of stare decisis, which as a matter of public policy and sound legal administration requires the courts in the decision of cases to observe a proper respect for the prior decisions of the highest court. While the rule is not unbending, and the courts are not without power to depart from a prior ruling, or of course to overrule it, where cogent reasons exist, and where the general interest will suffer less by such departure, than from a strict adherence (Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770), yet a due regard for the stability of rights acquired under the law as announced by the highest court of the state, to say nothing of the propriety of uniformity of decision by that court, requires that when a question of law has been definitely settled once it should remain the law unless there exists the strongest reasons for changing it. It is obvious this rule of decision is something entirely apart from the conception of res adjudicata or es-toppel of any sort. Certain elements enter into the consideration of the binding force of a judgment, or the operation of an estop-pel, that have no place whatever in the rule of stare decisis, and the force of the rule is the same whether the parties to the two suits are identical or not, and, as to estoppel, whether they or either of them knew of the prior decision or any of the facts inducing it. Concretely stated, the doctrine merely means that the decisions of law made by the highest court of the state become the law of that state.

“Black, on Judgments, correctly states it as follows:

“ ‘According to the doctrine of the best cases, a title previously passed upon although in a suit between different parties, will not be again examined and adjudged in a case proceeding upon the same state of facts and presenting precisely the same question unless the same is manifestly erroneous. This, however, is not strictly upon the ground that the matter is res adjudicata, but rather upon those settled principles which induce the courts to abide by their own former decisions, that is, the rule of stare decisis.’ Black on Judgments, § 603.”

Other authorities are then cited substantially to the same effect.

The doctrine there announced is what is termed “the law of the ease,” and in 3 Texas Jurisprudence, § 924, p. 1316, this is said:

“Generally, it may be said that the effect of reversal of a judgment is to restore the parties litigant to the same condition in which they were prior to its rendition. The parties are then allowed to proceed in the court below to obtain a final determination of their rights, in the same manner, and to the same extent, as if their cause had never been heard or decided by any court, subject, of course, to the doctrine of the law of the case. Accordingly, when a case is remanded for retrial on the issues, the lower court should proceed with the case as stated in the original pleadings. But when a cause is remanded for retrial of a designated issue or issues, it appears that the scope of the retrial is limited to a determination of such issues. The trial court has no power of adjudication as to matters in respect of which there has been no reversal.

“A trial court is without jurisdiction to entertain issues or questions, and they are properly excluded from the scope of the trial, where the mandate of an appellate court has finally decided such questions upon the same facts and pleadings.”

We quote the following from section 926, page 1219:

“On retrial a court may not admit evidence on questions relating to issues not, by force of the mandate, before it. When a cause is reversed and remanded with instructions to the court below to hear evidence only as to a designated issue, and then to render judgment in accordance with the directions contained in the opinion, it is error to reopen the entire case on retrial; the evidence admitted must be confined to the point to be found, and must conform to the general rules of evidence. It is not competent to show by evidence aliunde that the main issue clearly made by the parties on the original trial of the cause was not decided, for such testimony would contradict a judgment which shows that the question was decided.”

Also the following from section 940, page 1339:

“The rule which makes the decision of an appellate court the law of the case is founded upon public policy and is intended to put an end to litigation. The basis of the rule may be said to be the doctrine of stare decisis; at least in applying the rule, the courts so refer to it. Although the courts in this connection mention the doctrine of res adjudi-cata it seems that they do not regard the rule of the law of the ease as being based upon that principle.”

And m section 941, p. 1340, of the same work, it is pointed out that the decision of one Court of Civil Appeals is the law of the case upon a second appeal of the same case to another Court of Civil Appeals. The doctrine of the law of the ease on subsequent trials is discussed on pages 1338 to 1343 of the same volume in accordance with numerous decisions cited.

The fact that the former decision in this case was between the same parties and that the plaintiff elected to abide by that decision without applying for a writ of error to the Supreme Court, renders the rule of stare decisis applicable here with special force.

It is our conclusion, therefore, that appellant here is in no position to assert the claim that the defendant was guilty of conversion of any of the notes in controversy, nor of any of the merchandise which had theretofore been delivered to him and some of which he had returned to defendant, as shown by an exhibit attached to the amended petition; since, according to the decision on the former appeal, title thereto was never vested in him but was vested in defendant.

Another count in plaintiff’s petition was for an accounting between the parties with respect to the handling of the merchandise furnished to plaintiff by the defendant under their contract.

Since title to the notes and merchandise furnished to plaintiff had been finally determined to be vested in defendant and the issue of conversion thus definitely settled against the plaintiff, the accounting, for which the case was remanded, could not be upon the theory of conversion of the notes and merchandise, which was the only theory upon which plaintiff claimed an accounting in his amended petition, and therefore the general demurrer as to that claim was properly sustained. The amended petition presented no claim for an accounting for commissions earned in selling the goods nor for a general accounting between plaintiff and the defendant on the theory of his agency for the defendant in selling the merchandise and taking the notes therefor.

The claim of $5,000 as damages to plaintiff’s credit and reputation was presented in paragraphs 6 and 7 of his petition, reading as follows:

“6. Plaintiff would further show that on the date above alleged the defendant herein with their malice aforethought and without any just cause or legal right forcibly entered upon plaintiff’s premises and took actual and forcible possession of all goods, wares and merchandise, then in possession of plaintiff in the place of business in the city of Decatur which plaintiff had theretofore fully paid for in cash and the personal negotiable notes executed by plaintiff to defendant amounted to the sum of $1,166.90, an itemized list of said merchandise being hereto attached and made a part hereof and marked exhibit ‘B’. That all of said property was forcibly taken by the defendant without any just cause or legal right, and was taken in a wanton and malicious manner and in such a way as to injure and damage the credit and reputation of this plaintiff and his reputation for honest and fair dealing among his customers which conduct actually caused plaintiff damages in the further sum of'$5,000.00. •

“7. Plaintiff would further show that at said time the defendant maliciously and forcibly took from the possession of this plaintiff over his protest and against his will in addition to goods brought from defendant the following other items of property belonging to-this plaintiff, towit: One Georgia-stock, of the value of $4.50; one 60-tooth Harrow, of the value of $27.50, one 3 horse-evener of the value of $7.50, and many other articles of machinery which plaintiff is now unable to describe all of which was forcibly taken from this plaintiff by the defendant and actually converted to its use and benefit to the plaintiff’s damage in the sum of $40.50, with interest thereon from said date until paid at the rate of 6 per cent per annum.”

But in his testimony quoted above, which was given controlling effect in denying the alleged conversion, plaintiff admitted that defendant had the legal title to, and right of possession of the goods theretofore furnished to him by defendant and then in his store, and by reason of that fact he did not object to the taking of them from his place of business. That admission precludes his right to claim damages to his credit and reputation for the forcible entry and taking of those goods; and there is no allegation to show any injury to his credit and reputation by the alleged forcible taking at the same time of the other three items that had not been furnished to him by defendant, considered separately and apart from the rightful entry and taking of the other articles at the same time. Indeed, according to the allegations the damages so claimed resulted from the alleged wrongful entry of plaintiff’s place of business and there taking possession wrongfully of all the goods as a whole, with no basis for segregating injuries to his credit and reputation resulting from a wrongful taking of those three articles from damages of the same character resulting from the entry and taking of the other merchandise at the same time and with his consent. Hence, as against a general demurrer the claim of damages for injury to credit and reputation must be considered as a whole; and when so considered the demurrer thereto was properly sustained.

With the issues of conversion and accounting and damages for injury to credit and reputation thus eliminated, plaintiff’s only remaining demand was for conversion of the three items of merchandise referred to in the opinion on the former appeal, and described in his pleading as “a Georgia stock, valued at $4.50, a harrow, valued at $27.50, and a 3 horse power evener at $7.50,” all aggregating the sum of $39.50, and also for the item of $133.84, alleged to have been paid by plaintiff as freight in returning to defendant some of the merchandise theretofore furnished to him by defendant. The aggregate of all of those items was $173.34. and the district court was without jurisdiction to determine that demand.

In Carswell & Co. v. Habberzettle, 99 Tex. 1, 86 S. W. 738, 740, 122 Am. St. Rep. 597, the following was said in an opinion by Chief Justice Gaines: “It is now the settled law in this court that, although the amount claimed in the petition may be sufficient to give the court jurisdiction of the case, yet if the facts alleged be such as to show no cause of action as to such part of the whole sum sued for, as to reduce it below the amount for which the court has jurisdiction, the suit should be dismissed.”

The rule so announced has been applied in numerous other decisions, such as Richards Medicine Co. v. Graves (Tex. Civ. App.) 273 S. W. 702, and decisions there cited, to which might be added other decisions such as Haddock v. Taylor, 74 Tex. 216, 11 S. W. 1093; and according to that rule the trial court did not err in sustaining the general demurrer to plaintiff’s amended petition and dismissing plaintiff’s suit after his refusal to further amend his pleadings, notwithstanding a cause of action was alleged for the four items mentioned above.

The prayer of appellee for an affirmance of the judgment of the court below amounts to an abandonment of its cross-action against appellant, and therefore the merits of the same are not here involved.

For the reasons indicated, all assignments of error are overruled and the judgment of the trial court is affirmed.


text:
    WINDFOHR et al. v. JOHNSON’S ESTATE et al.
    No. 12798.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 26, 1932.
    Rehearing Denied Jan. 7, 1933.
    Fred T. Arnold, of Graham, for appellants.
    Marshall & King, of Graham, and O. W. Johnson, Jr., of Fort Worth, for appellees.
   DUNKLIN, Justice.

R. F. Windfohr and the Nash & .Windfohr Oil Corporation and others are .the owners and operators of an oil well known as No. 1 McLeod and an oil and gas lease on which the well was drilled. The well produced both oil and salt water, and the salt water after being separated from the oil was impounded in reservoirs in order to prevent its flow upon adjoining lands. The reservoirs consisted in part of excavations inclosed by concrete dams and in part created by dams across Farmers branch. The well and reservoirs were situated near the headwaters of what is known as Farmers branch, a tributary to Salt creek. Farmers branch is a dry ravine except in time of floods; and during floods the drainage from the territory immediately adjacent empties into it. Some two miles from the oil well just mentioned Farmers branch flows into Salt creek after running across the northwest corner of a tract of 100 acres of land belonging to the estate of C. W. Johnson, Sr., deceased. The heirs of C. W. Johnson recovered a judgment against the owners of the. oil well for $500 as damages sustained by them for loss of pecan trees growing on their land along the banks of Farmers branch, which the court found was caused by the deposit of salt water produced from the oil well and which defendants permitted to flow down Farmers branch. From that judgment the defendants have prosecuted this appeal.

The principal question presented by appellants relates to the measure of damages adopted by the tidal court, which was the value of the pecan trees as they stood before their injury by the salt water, rather than the difference in the market value of the land before and after its inundation by the salt water.

In 13 Texas Jurisprudence, page 63, the following is said:

“Where fruit trees, vines or bushes have been destroyed or injured the measure of damages has frequently been said to be the difference in the market value of the land immediately before and immediately after the injury. This is not an inflexible rule, however; as the measure of damages may be whatever comes nearest to affording actual compensation for the injury. Thus the measure of damages may be based upon the value of the property destroyed, or upon the amount necessary to compensate the owner for being deprived of it for the uses for which it was intended.”

Many decisions are cited in support of that text. T. & P. Ry. Co. v. Graffeo, 53 Tex. Civ. App. 569, 118 S. W. 873; G., H. & S. A. Ry. Co. v. Warnecke, 43 Tex. Civ. App. 83, 95 S. W. 600, and other cases announce the rule that the measure of damages for the destruction of fruit trees, vines, etc., is the diminution in the value of the land. Other decisions, such as T. & P. Ry. Co. v. Gorman, 2 Tex. Civ. App. 144, 21 S. W. 158, St. Louis, etc., Ry. v. Follis (Tex. Civ. App.) 268 S. W. 1030, Stephenville, etc., Ry. v. Baker (Tex. Civ. App.) 203 S. W. 385, and Powell v. Hill (Tex. Civ. App.) 152 S. W. 1125, hold that such damages may be measured by the value of the fruit trees destroyed if it appears that such would be the most practicable way of determining the compensation available to the owner, since compensation is the chief end sought.

In Sabine, etc., Ry. Co. v. Johnson, 65 Tex. 389, it is said: “The measure of damages for negligently deluging the land of another, without permanently taking it, is the value of the products destroyed, including fruit trees, and the injury done to the land, and not the difference between the value of the land before and after the overflow.”

To the same effect, is the case of Gulf Pipe Line Co. v. Hurst (Tex. Civ. App.) 230 S. W. 1024; and many authorities are cited to support the following statement in 13 Texas Jurisprudence, page 164: “Only where the injury is permanent, or the nuisance complained of is from its nature permanent, are damages to be measured by the diminution in the market value of the realty affected.”

According to allegations in plaintiffs’ petition, which are supported by testimony introduced, the nuisance complained of was not permanent but temporary, consisting of the occasional flooding of plaintiffs’ land from the overflow of the reservoirs in which defendants had impounded the salt water from the oil well; those overflows occurring during heavy rainfalls. It further appears from the evidence that the parties had so treated the nuisance by a voluntary settlement of the claims made by the plaintiffs for loss of pasturage on account of the pollution of the water from the oil well.

Under the authorities noted above we overrule appellants’ contention that the court erred in measuring plaintiffs’ damages for the destruction of the pecan trees by their value as established by testimony rather than by the diminution in the value of the land by reason of the flooding of the same with salt water. Nor can we say that the damages awarded for the destruction of the pecan trees was excessive in view of the direct and positive testimony supporting the amount allowed.

No reversible error is shown, by the action of the court in overruling special exceptions to the petition because it did not more particularly itemize damages for the pecan trees, in the absence of any showing that the defendants were taken by surprise by the testimony offered by the plaintiff to prove such damages. Even though it should be held that such special exceptions were meritorious, the error in overruling them was harmless. See 3 Texas Jurisprudence, p. 1246, § 873 et seq., and p. 1254, § 878.

Plaintiffs pleaded specially that the pollution of Farmers branch with salt water from defendants’ well was a nuisance and also that the defendants were guilty of negligence in causing that result, and testimony introduced was sufficient to sustain the judgment upon either of those theories. Nor can that judgment be disturbed by reason of the testimony'tending to show that salt water from wells of other owners also drained into Farmers branch, in the absence of a further showing that salt water from such other wells also flowed down Farmers branch to plaintiffs’ land and contributed with that from defendants’ well in destroying plaintiffs’ pecan trees. The absence of such a showing distinguishes this ease from such decisions as Sun Oil Co. v. Robicheaux (Tex. Com. App.) 23 S.W.(2d) 713, at all events. See, also, 20 R. C. L. p. 763, § 13; 27 R. C. L. p. 1212, § 134. According to those authorities, while the general rule is that joint tort-feasors are jointly and severally liable for an injury, there is a further rule which is applied in case of the pollution of a stream of water contributed to by several parties.,. If it be shown that each of such parties have acted separately and independently of each other and not in concert, then each is liable only to the extent of his contribution to the injury done. The record shows that salt water from wells of other owners which were situated up stream from defendants’ well did empty into Farmers branch, but it cannot be said that the evidence showed conclusively that the salt water from those sources was sufficient to and probably did reach plaintiffs’ land and thereby contributed to the destruction of the pecan trees. The evidence tended to show that the salt water which, destroyed plaintiffs’ pecan trees came entirely from defendants’ reservoirs; and in support of the judgment a finding to that effect by the trial judge who tried the ease without a jury must be presumed; the burden being upon appellants to show reversible error.

Nor was there error in the court’s refusal of plaintiffs’ prayer for an injunction restraining defendants from further operating the well in controversy, since (1) it does , not appear that the nuisance complained of is permanent and not abatable; (2) the damages which will result to the defendants by an injunction restraining further, operation of the well would be so much greater than any temporary injury to plaintiffs as to warrant a refusal of an application therefor, under the comparative injury doctrine; the testimony showing that the well in question has produced large quantities of oil in the past and is now producing at the rate of 132 barrels a day. 46 C. J. p. 775, § 385; City of Austin v. Bush (Tex. Civ. App.) 260 S. W. 300; Fields Sewerage Co. v. Bishop (Tex. Civ. App.) 30 S.W.(2d) 412, and authorities there cited.

All assignments of error are overruled and the judgment of the trial court is in all things affirmed.


author: LATTIMORE, Justice.

text:
    INGE v. FIRST STATE BANK OF DENTON.
    No. 12754.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 7, 1933.
    Rehearing Denied Feb. 18, 1933.
    Owsley & Owsley, of Denton, for appellant.
    Geo. M. Hopkins, of Denton, for appellee.
   LATTIMORE, Justice.

This is a suit complaining of the removal, by appellee’s directions from a building owned by appellant, of various articles, hereinafter named, placed therein by appellee.’

Appellee in 1919 rented from the deceased husband of appellant a building in which it installed and operated a bank. At the time of the opening- of that bank in this building, the appellee removed the plaster from the walls some 3½ feet high on a portion of such walls and replaced same with a wainscoting of marble slabs which were held in place by nails driven into the walls; huilt a vault in the back of the building, with an opening door containing a time clock; built a closet under the back stair with a mirror door opening; placed a set of bank cages and windows therein supported by braces screwed to the floor and the walls, and rebuilt the floor around said cages, tile on the outside and wood inside such cages; an additional revolving storm door inside the regular entrance door.

At the time of the original entry into the •building the bank acquired the lease of a druggist. Thereafter, at the expiration of sucli druggist’s lease, the bank made a lease with Dr. Inge which recited: “Second party (the bank) shall and does take the premises herein rented in the same condition that said property now is and shall surrender the same at the termination of this lease in as good condition as when received, natural wear and tear and unavoidable casualty alone excepted and subject to all the conditions of this lease contract.”

Thereafter renewal leases were from time to time signed, each containing such clause until 1931, when the appellee vacated the premises and caused the articles above named save the floor and the vault other than its door to be removed.

The rule that a tenant taking a renewal lease, while his fixtures from a previous lease are yet in the building, without expressly retaining the right of removal of such fixtures, waives the right to their removal thereafter, appears not to have been looked on with favor, since Chief Justice Gaines, in Wright v. Macdonnell, 88 Tex. 140, 30 S. W. 907, 909, said 'that the minority rule contra to that above outlined was “difficult to answer.” The majority rule of the various states assumed that he intends to lease his own property. Tlie rule there announced is that a tenant does not by the mere renewing of his lease waive his right to his fixtures. The intention of the parties is to be determined “from the language employed when viewed in the light of the circumstances attending the transaction.”

The obligation of appellee by its lease was to return the building “as it now is.” Wte are thus relegated to the rules in Hutchins v. Masterson, 46 Tex. 554, 26 Am. Rep. 2S6. The rules therein set out, when read in the light of Moody v. Aiken, 50 Tex. 65, make it plain that our rule of public policy and in favor of trade and to encourage industry encourages the tenant to install trade fixtures which, if erected for a mere temporary purpose and without any intention on the part of the tenant that same become a part of the realty, and if not so attached as to become a part thereof, may be removed. It is the intention which is the important factor; hence the evidence of the bank officials that appellee did not intend for the articles to become a part of the realty. This testimony was admissible, but it was not exclusive; “the intention being inferable from the nature of the article, the situation of the parties interested, the mode of annexation, the circumstances which require the installation and the use to be made thereof;” See cases above cited.

The trial judge finds the building un-tenantable, unless something is put in the place of the wainscoting and the revolving door. Measured by these rules and the facts shown in the record, the wainscoting which was placed in the wall to take the place of the plaster is a part of the wall; the vault and closet is a part of the building, and the doors no less so. • The time lock door and the bank cages and windows are trade fixtures, and as such the tenant is entitled to remove them. It is of no importance that the closet door matches in appearance the eages, but it is of importance that the time lock door is especially a bank vault door. The one door is not a trade fixture; the other is.

What is here said is not unmindful of the condition the floor and the vault is left in, for the opinion herein is not in derogation to the law of damages to premises by a tenant.

The case is here without a statement of facts, and we are therefore unable to determine the cause other than to reverse and remand the same for proceedings not inconsistent with this opinion.


author: JONES, Chief Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N V. WILLIAMS et al.
    No. 11098.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1933.

      Lawther, Cox & Cramer and James P. Swift, all of Dallas, for appellant.
    White & Yarborough, of Dallas, for ap-pellees.
   JONES, Chief Justice.

An appeal has been duly prosecuted from an adverse judgment in a workmen’s compensation suit in a district court of Dallas county, instituted to set aside an award of the Industrial Accident Board against Texas Employers’ Insurance Association, appellant, and in favor of Marguerite Williams and Dan Williams, appellees. The following are the facts:

Quincy Williams, deceased, Was the son of appellees, and was in the employ of Cox, Incorporated, who operated a large garage in the city of Dallas, and appellant carried the compensation insurance. On July 25, 1930, deceased was accidentally killed, while working in the scope of his employment. At the time of his death, he was about 20 years of age, had never been married, and lived with his mother, Mrs. Marguerite Williams. For some time previous to the fatal accident, appellees had been divorced, and appellee, Dan Williams, was living in the state of Missouri. At the time of his death, and for about a year preceding, Quincy Williams had received the wage of $3 per day, working six days per week.

The father attended the funeral in Dallas, and on July 29 th appellees entered into a separate written contract employing White & Yarborough, attorneys at law, to prosecute the claim of each, under the Workmen’s Compensation Law (Rev. St. 1925, art. 8308 et seq., as amended), before the Industrial Accident Board, and before any court in which such claim's should be urged or defended. It appears that Dan Williams desired the entire compensation allowed by law to be paid to Mrs. Marguerite Williams, and executed an assignment of his claim to her to carry out such purpose.

On the same day of the execution of the contracts and the assignment, a claim was prepared on the blank furnished for such purpose, mailed to the Industrial Accident Board at Austin, where it was received and filed on the following day. Such instrument was signed only by Mrs. Mai*guerite Williams, in which a claim was presented for the entire statutory allowance, and never mentioned the fact that her former husband, Dan Williams, was living. However, the concluding paragraph of such claim reads: “This claim for compensation, with respect to such injury, and the cause of the| death of deceased, is made in behalf of and for each and all of the legal beneficiaries of the deceased, as well as by and for the undersigned, herein acting for himself, and for such legal beneficiaries.”

In connection with, and as a part of, said claim prepared at the same time, and received by the Industrial Accident Board on the same day on which the claim'was received, Mrs. Marguerite Williams forwarded an affidavit, the purpose of which was to secure an early hearing of the claim, and an award for a lump sum payment. This affidavit contains the following, material to a disposition of this case. “I am a widow, I am divorced from the father of Quincy Williams, and have never been married since being separated from him. I make claim for compensation herein as the sole beneficiary of Quincy Williams, deceased. * * * ”

On the issue of the statutory notice of a claim for Dan Williams for the death of Quincy Williams, Yarborough, one of the attorneys, testified in effect that, within the statutory time for giving such notice, he had the matter of settlement of the claims of ap-pellees, with an authorized claims attorney of appellant. While the dates of the conferences, in respect to settlement, are not definitely fixed by the attorney, other than at different times in the fall of 1930, it reasonably appears that these conferences were had prior to the award of the Industrial Accident Board, which was on October 23, 1930.

Appellant’s claims attorney, in his testimony at the trial, denied that any effort had been made with him to settle the claim of Dan Williams, and testified that no suggestion that Dan Williams was making a claim was made to him as claims attorney for appellant.

This suit was duly filed by appellant to set aside the award of the Industrial Accident Board. Mrs. Marguerite Williams gave proper notice to such board that she was not willing to abide by the award of the board, and appellees in their answer duly filed a cross-action, in which the right of Mrs. Williams to the entire allowance, and to a lump sum payment, was alleged. The basis for a recovery of the-entire allowance for Mrs. Williams was the alleged assignment to her of the claim of Dan Williams.

The court sustained special exceptions to all of those allegations in appellees’ cross-action, alleging the assignment by Dan Williams to Mrs. Marguerite Williams, and her right to the entire allowance. Appellee Dan Williams thereupon filed a trial amendment, in which he presented an alternative plea that he be awarded' one-half of the weekly payments allowed by statute to him as one of the beneficiaries. The relief prayed for, in effect, is the same allowance made him by the board. This appeal does, not challenge the jurisdiction of either the Industrial Accident Board, or of the district court, in respect to Mrs. Marguerite Williams, but it does challenge the jurisdiction of the Industrial Accident Board to have made any award to Dan Williams, on the ground that no claim for him was presented to such board, and on the further ground that statutory notice of such claim was not given, and also challenges the jurisdiction of the district court to make any award to Dan Williams, because of this failure to show jurisdiction.'

It clearly appears from the evidence that no issue of fact is made) by the evidence in reference to Mrs. Williams’ right to recover the statutory allowance for the death of her son, Quincy Williams, except as to her right to a lump sum payment. The court submitted only two issues in respect to her right, one as to whether she should be allowed a lump sum payment of the amount of the award, and the other as to what rate of discount should be made for the lump sum payment. The jury passed upon the first of these issues by answering that Mrs. Williams was entitled to a lump sum payment, and this finding of the jury, being supported by evidence, is adopted as the finding of this court. The jury answered the other issue by naming 5 per cent, of the total amount of the award as the proper discount, and this finding is also adopted as the finding of this court.

The undisputed evidence shows that 60 per cent, of the weekly wages of deceased amounted to $10.38 per week, and that' Mrs. Williams, under the Workmen’s Compensation Law, is entitled to $5.19 per week, one-half of the entire weekly allowance, for 360' weeks, and to 6 per cent, interest on the matured payments, and that of the total of the unmatured payments there should be a deduction of interest at the rate of 5 per cent., making the total sum of $1,607.20, for which! sum judgment was entered for Mrs. Williams, with 6 per cent, interest from date of judgment in the district court. This part of the judgment must be affirmed.

Dan Williams, who had not appealed from the award of the Industrial Accident Board in his favor, was allowed the same judgment of weekly payments of $5.19 per week for 360 weeks, as was allowed by such board, with interest at the rate of 6 per cent, on the mar tured weekly payments, making the amount due him on the featured payments, at the time of the trial, $212.33, and the sum of $5.-19 per week for the unexpired time of 360 weeks. One-third of the award to appellees is decreed to White & Yarborough, under their contract as attorneys.

Appellant contends, by appropriate assignments of error and propositions of law, that the judgment in favor of Dan Williams should be reversed and rendered in its favor. This contention is based on the ground that no claim for an award was presented by Dan Williams to the Industrial Accident Board previous to the making of the award by such board, as required by section 4a of article 8307 of the Workmen’s Compensation Law. This section is mandatory that a claim for compensation must be made within the period of six months after the death of the deceased, in order that a claim for compensation may be considered by the Industrial Accident Board, and also in order that the court, to which the ease is appealed, may be given jurisdiction to render a judgment in favor of the plaintiff. Texas Employers’ Ins. Ass’n v. Nelson (Tex. Civ. App.) 292 S. W. 651. It necessarily follows that, if the Industrial Accident Board awarded statutory compensation for the death of deceased in favor of Dan Williams, without a claim having been presented either by Dan Williams or some one in his behalf, such award was void for want of jurisdiction of the Industrial Accident Board; and the judgment in favor of Dan Williams, rendered by the trial court, is likewise void for want of jurisdiction. Does the record in this case show the existence of such jurisdictional fact? If it does not, then the judgment in favor of Dan Williams must be reversed and rendered in favor of appellant.

It is agreed that, within 30 days after the death of Quincy Williams, the employer had notice of his death. The undisputed evidence shows that appellees, parents of deceased and the sole beneficiaries under the law, were divorced previous to the fatal accident; that Mrs. Williams was living in Dallas, and Dan Williams was living in Missouri; that four days after the fatal accident appellees visited the offices of their attorneys in this case, and that each appellee entered into a separate written contract with the attorneys to present and prosecute their claims for compensation, under the Workmen’s Oompensation Law; that on this occasion Dan Williams executed an assignment of his claim to Marguerite Williams; that Marguerite Williams at once prepared a formal claim for the entire amount of the compensation that the law allows to beneficiaries, and mailed same on such date to the Industrial Accident Board, and accompanied the claim with another instrument, in the form of an affidavit, showing that she was divorced from Dan Williams, the father of deceased, and presented a claim for a lump sum payment.

It thus appears that the Industrial Accident Board is presented with a claim for the entire statutory allowance by one of the beneficiaries, but is given notice that the other beneficiary is living. As shown above, the claim for compensation signed by Mrs. Marguerite Williams also informs the Industrial Accident Board that such claim for compensation “is made in behalf and for each and all of the legal beneficiaries of deceased, as well as by and for the undersigned,” and further that she is acting for herself and for .the other beneficiaries. The only other beneficiary is Dhn Williams, the divorced husband, and the fact that he is a beneficiary is made known to the Industrial Accident Board by the claim, and accompanying affidavit, of Mrs. Marguerite Williams.

Under the law, Mrs. Williams could only be adjudged one-half of the statutory amount of compensation for the employee’s death. She claimed, however, the entire amount for herself, on the ground that she and the father of deceased are divorced, and that she has never married. This fact of a divorce in no way affects the right of Dan Williams to one-half of the compensation. Mrs. Williams informed the board, in legal effect, that the claim presented for the entire compensation was not made solely in her own behalf, but was made also for any other beneficiaries that might be entitled to a part of the compensation. In this case, the only other beneficiary is Dan Williams, the father of deceased; hence there was also presented a claim in his behalf.

The Industrial Accident Board acted oru this claim and allowed the entire compensation, one-half to Marguerite Williams and one-half to Dan Williams. We hold that, under this statute, the Industrial Accident Board was given jurisdiction to determine the entire elairh for the death of the employee, Quincy Williams, and to apportion the entire claim between the Statutory beneficiaries, in whose behalf claims had been filed, and the contention that the Industrial Accident Board did not have jurisdiction over the claim of Dan Williams is overruled.

Appellee, Mrs. Williams, appealed from the award because she was not allowed a lump sum payment, and further because she was not allowed the entire award, as shown by the cross-action presented in the suit filed by appellant. Appellant’s petition makes both appellees defendants in such suit. Answering as defendants, both appellees joined in the allegations urging that Mrs. Williams should be allowed the entire compensation, based on the assignment of Dan Williams of his right as a beneficiary to Mrs. Williams. As we have seen, appellant presented special exceptions to this portion of appellees’ cross-action, and the court sustained such special exceptions; whereupon appellee Williams, in his own behalf, filed a trial amendment, in which he asked, in effect, that the award to him by the Industrial Accident Board be made the judgment of the trial court. This pleading was not a cross-action, but an answer to appellant’s suit.

No cross-assignment of error, because of the ruling of the court, in respect to the right of Williams to assign his claim to Mrs. Williams, is made by appellees, and that question is not before this court. The trial court evidently based such ruling on the following paragraph of section 3 of article 8306: “All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part 'thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void.” The assignment in question does not come within any of the exceptions referred to in the provision of this statute.

The effect of the pleading of the cross-action is that appellees were insisting that appellant be adjudged to pay the entire statutory allowance for both appellees to Mrs. Williams, because of the assignment of Dan Williams of his claim to Mrs. Williams. When the court held that such assignment is void, then Dan Williams, through his trial amendment, asserted that he be allowed the same award as made by the Industrial Accident Board; in other words, that the claim of appellant in respect to his award be denied. Our holding as to the jurisdiction of the Industrial Accident Board also applies to thei jurisdiction of the district court.

Independent of anything shown by the claim and affidavit filed by Mrs. Williams, ap-pellees contend that the evidence of their attorney raises an issue of fact as to whether actual notice was given to appellant- in behalf of Dan Williams prior to the award by the Industrial Accident Board. The issue of fact made by the evidence in this respect is a disputed issue, submitted to the jury by the court, and a finding on¡ this issue, favorable to appellees, was made by the jury.

While an attorney for appellee was discussing the issue as to whether a claim for compensation for Dan Williams was made in compliance with section 4a of article 8307, R. S., as submitted in special issues Nos. 3 and 4, in his opening speech-, he made the following argument to the jury: “About the only question to be answered by you is whether claim was made by Dan Williams, and if claim was not made it will permit this insurance company to keep from paying one-half of the compensation.” Then, in the closing argument to the jury, the attorney said: “Gentlemen of the Jury: The award of the Industrial Accident Board is not in evidence. It was objected to by plaintiff (appellant). Dan Williams was satisfied with, what the Board awarded him. The insurance company was the one that was dissatisfied.”

Each of these arguments was excepted to by counsel for appellant, and the court, in each instance, instructed the jury to disregard the argument.

Such arguments have been held to be improper, especially when a case is submitted to a jury on special issues. Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091. Tlie trial court did all in his power to destroy the effect of such argument by instructing the jury to disregard same. It is not believed that the prejudicial effect of the argument on the jury could be removed by the instruction of the trial court to disregard same.

I-Iowever, as we have construed the claim filed before the Industrial Accident Board to show that, as a matter of law, a claim was presented to such board in behalf of Dan Williams, the prejudicial error in the argument becomes immaterial, and we therefore overrule the assignments of error in this respect.

All assignments of error not specifically discussed have been examined and are overruled. It necessarily follows that, in our opinion, the judgment of the lower court should be affirmed, and it is so ordered.

Affirmed.


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    CITY INVESTMENT & LOAN CO. et al. v. WICHITA HARDWARE CO.

    No. 12739.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1932.
    Rehearing Denied Jan. 14, 1933.
    Benson & Benson and Donald & Donald, all of Bowie, and T. R. Boone, of Wichita Falls, for appellants.
    Mathis & Caldwell, of Wichita Falls, for appellee.

       Writ of error granted.

   LATTIMORE, Justice.

Appellee sued on a note for $1,600 signed by six defendants. The note contained on its face this statement: “This note.is given as collateral to a certain deed of trust and materialman’s lien note, dated August 17, 1929, payable to the Wichita Hardware Company in the sum of $10,000.00,” and also the statement “see notation on back of this note.” On the back of the note was: “When the note to which this note is collateral is paid in full, this note shall be returned to C. A. Pruden.”

Appellants answered that Pruden, one of the signers of the note sued on, was building a hotel on which an insurance company held a first lien and for which appellee had furnished $10,000 worth of material, as had also one Shamburger furnished $1,600 worth of material, and that appellee had secured a signed second lien for its debt, and that Sham-burger was threatening to make trouble unless his debt was secured by a lien, parity to appellee; that appellants agreed with appel-lee and Shamburger to put up this note sued on with appellee, conditioned that Shamburger’s debt was to share on a parity with appel-lee’s debt in the lien taken by appellee and that if Shamburger foreclosed such lien, the note would be enforceable to the extent such enforcement by Shamburger deprived appel-lee of the collection of any of its $10,000 debt, and that if appellants paid Shamburger’s note then the note sued on was to be “of no further effect”; and alleged that Sham-burger had been paid by appellants without using any of said lien security. To this ap- . pellee replied, alleging a wholly different and executed consideration. On trial no witness testified on this matter except Pruden, who, being called by plaintiff, gave a statement largely of legal conclusions along the substantial lines of appellant’s pleadings, as above outlined.

The jury found on the only special issue submitted on this issue that: “The note in question was executed and delivered upon condition that same was not to become a valid and subsisting written instrument unless the said Wichita Hardware Company should become liable or their interests jeopardized by reason of the defendants’ note to the Sham-burger Lumber Company being unpaid.” Shamburger’s note had been paid as alleged. The court rendered judgment for appellee non obstante veredicto.

Was appellee entitled to an instructed verdict? Appellants assort that the language on the note as quoted above is ambiguous and admits of oral evidence, which they claim, being offered, and a jury verdict thereon favorable, shows that there was a condition precedent to the note’s taking effect, namely, that Shamburger should invade the appellee’s lien as per agreement.

Was the language of the note ambiguous? “Ambiguous” means uncertain because susceptible of more than one meaning, Jarecki Mfg. Co. v. Hinds (Tex. Civ. App.) 295 S. W. 274; Words and Phrases, Third Series, vol. 1, page 433, but must be susceptible of interpretation. Thus a contract inaccurate for want of any meaning is unenforceable, but if only ambiguous may be made certain by parol testimony. Matter of Millette’s Estáte, 123 Misc. 745, 206 N. Y. S. 342, 349. The fact that this note does not say what the appellant, contends was the true agreement is unfortunate, but avails nought under the pleadings and testimony unless the language is ambiguous.

The term “collateral” is not a technical word and its use is not confined to describing pledges of notes or property as security. Its first meaning, according to Webster, is “accompanying as a secondary fact, or acting as a secondary agent; 2nd, related to, complementary ; 3rd, accompanying as a co-ordinate ; 4th, an obligation or security attached to another to secure that other’s performance.” We have collateral issues, evidence, heirs, events, notes, promises, nerves, and warranties. So the bankers say “collateral” ' probably meaning “collateral security,” the historian, meaning “collateral in time,” the lawyer, meaning “in effect as evidence”; but when a court comes to determine what the word means when used in a particular document which does not show within its four corners the sense in which it was used, the court cannot select as a matter of law any one of its several usages, and evidence must be heard to establish what the parties intended it to mean. Thus in this case the appellant says the note was collateral supporting the $10,000 note against an invasion of its other security from Shamburger, while the appellee says that it was to secure the appellee that appellant Pruden would pay the $10,000 in any event. In either case, the note is collateral to the $10,000'note.

We all agree that oral evidence was admissible. Our reasons therefor differ, being those above stated or under the principles announced in McFarland v. Shaw (Tex. Com. App.) 45 S.W.(2d) 193. While this evidence was rather loosely developed, still we believe there is enough of it to make out, prima facie, appellant’s fact contentions. It is thus apparent that the judgment non obstante was improper.

The language of the only charge on this issue, however, does not follow the pleading or the evidence. No litigant claimed that the note should become “a valid and subsisting obligation” in the event appellees “should become liable or their interests jeopardized” by the Shamburger note. The claim of appellants was that if Shamburger enforced his right of foreclosure for his note of the appel-lee’s lien and thereby the security of appellee became insufficient for its debt of $10,000, then the note stood for that insufficiency. The two propositions are so dissimilar that in our opinion it amounts to no verdict on the real issue; therefore the cause should not be rendered but remanded.


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    KINDEL v. KINDEL et al.
    No. 12744.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1932.
    Rehearing Denied Jan. 7, 1933.

      Grindstaff, Zellers & Hutcheson and T. P. Temple, all of Weatherford, for appellant.
    R. B. Hood and Preston Martin, both of Weatherford, for appellees.
   LATTIMORE, Justice.

Appellant, second wife of R. W. Kindel, deceased, has appealed from a judgment on verdict on special issues.refusing the probate of a holographic will of deceased on account of the testamentary incapacity of decedent and the undue influence exerted upon him.

There are numerous exceptions to the contestant’s pleadings, most of which we think are not good. Assignments 3, 4, 10, and 16, however, are sustained. Extended discussion is unnecessary.

Complaint is made of the admission of testimony of the contestants as'to transactions with and statements by the deceased in contravention of article 3716, Rev. Statutes. To set out at length the testimony objected to would unduly burden the record. Deceased’s daughter testified to the contents of letters which she says her father received from appellant. This was a “transaction with” the deceased. True, a transaction with one other than the witness, but the statute does not limit the “transaction” or declaration to one with or to a witness or heir. Parks v. Caudle, 58 Tex. 216; Hardin v. Hardin (Tex. Civ. App.) 1 S.W.(2d) 708. Apparently this rule of law was ignored. The testimony by children cxf the deceased as to the content of letters received by the father, that the heirs received from the father only their mother’s estate, that their father showed one of them a document relative to disposition of his property that he had written, that deceased’s attitude toward his children was that of love and kindness, that he engaged in business with deceased, was prohibited by that article. Assignments of error 18, 19, 21, 22, 28, 31, 32, 34, 35, 36, and 37 are sustained.

Such children were permitted to detail the death scene of their mother, who in the presence of their father asked them to take care of Lloyd, the youngest child. While the record does not show anything said directly by or to the testator, yet it is plainly offered for only one purpose — to show that the father received that request and resolved to carry it out, and, if so, was violative of article 3716, Rev. Statutes. Indeed, counsel for contestants argued that effect in his speech to the jury, and declared that testator agreed to carry out the request. Assignments 26, 30, 33, 40, and 57 are sustained.

Also assignment 42 is sustained; the evidence being immaterial.

Objection to a question to a witness being sustained, counsel for contestant proceeded to state at great length within the hearing of the jury what the appellees proposed to show by the witness, and the proponent requesting the court to withdraw these remarks from the jury was refused. This was error.

Counsel for appellees attempted to tell the jury what the law would give appellant in event the jury found for appellees. This was error.

Also counsel for appellees said to the jury: “I would say that God would palsy the hand that would write a verdict that would disinherit any one from their father.” Upon this argument being made, this case would be reversed were there no other errors. It is not the function, although alas too often the tendency, of the jury or the advocate to try to write the will for the deceased. “Undue influence” on the will of the deceased may be as harmful in the jury box or at the bar as at the board or bed of the testator.

On another trial the inquiry should be confined to the pleadings, and carefully steer clear of whether the devise “let the law take its course” or “what the laws of man and God” intended for the children to get. Assignments 64, 55, 56, and 57 are sustained.

The judgment of the trial court is reversed, and the cause is remanded.


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    UPHAM et al. v. McCARSON, Justice of the Peace.
    No. 12776.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 28, 1933.
    Penix & Penix, of Mineral Wells, for appellants.
    E. G. Thornton, of Olney, for appellee.
   DUNKLIN, Justice.

A. A. Cooper instituted a suit in the justice court of Young county against S. P. Upham and J. A. Upham, doing business in Olney, Tex., as a copartnership under the firm name of Oity Gas Company, to recover the sum of $15. The defendants in that suit filed a cross-action to recover of the plaintiff the sum of $184.25.

The case was tried in the justice court and a judgment was rendered in plaintiff’s favor for the sum of $5.38, dismissing the cross-action on motion of plaintiffs by reason of the fact that no evidence was introduced in support thereof.

The defendants in due time presented to the justice of the peace an appeal bond for the purpose of appealing the ease to the county court of Young county, conditioned as required by statute for an appeal bond in the sum of $30 with good and sufficient sureties thereon; but the justice of the pe.aco refused to approve and file the bond on the ground that the judgment was for less than $20 and therefore could not be appealed, and because of the failure of the defendants to offer evidence in support of their cross-action. Thereupon the defendants in the cause filed in the county court a petition for mandamus to compel the justice of the peace to approve the bond and to prepare a transcript of the proceedings in that court and send the same to the clerk of the county court in terms of the statutes in such cases made and provided, which it was alleged the justice of the peace had refused to do. All of the proceedings just related were alleged in the petition for mandamus. The county court sustained a general demurrer to the petition and refused to issue the writ of mandamus prayed for, and this appeal has been perfected from that order.

By article 1957, Rev. Civ. Statutes of 1925, the county judge is authorized to issue writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas, and all other writs necessary to the enforcement of the jurisdiction of the court. This statute is in accord with article 5, § 16 of the state Constitution. And it is a well-settled rule of decision in this state that the county judge may issue a writ of mandamus to compel the justice of the peace to perform all duties required of him by the statute necessary to- transfer the case to the county court whenever the appellant takes the necessary steps therefor. Fry v. McCDuffey (Tex. Civ. App.) 46 S.W.(2d) 377, and decisions there cited. As against a general demurrer all the allegations of the petition for the mandamus must he accepted as true, and so construed, the relators in the petition for a writ of mandamus show a clear right to have the justice of the peace approve their appeal bond and send up a transcript of the proceedings in that court to the county court.

However, the rule is equally as well settled that a writ of mandamus will not issue when the party applying therefor has an adequate remedy at law for the relief sought in the mandamus proceedings, and that since the same is an extraordinary writ the issuance of it rests largely in the sound discretion of the court. Barry v. Screwmen’s Ass’n, 67 Tex. 250, 3 S. W. 261; Munson v. Terrell, Commissioner of General Land Office, 101 Tex. 220, 105 S. W. 1114; Glidden Stores v. Boyd, 116 Tex; 172, 287 S. W. 1093; Kidder v. Hall, 113 Tex. 49, 251 S. W. 497; 18 R. C. L. pp. 128, 132, 133. In the Munson Case a writ of mandamus was denied on the ground of laches on the part of the relator in failing to sooner apply for the writ.

By subdivision 2, title 27, Rev. Civ. Statutes, beginning with article 941, and also by article 2460, a clear right is given to the losing party, to a writ of certiorari to remove a case from a justice court to a county court, without resort to the statutory remedy of appeal. Article 944 provides that the writ shall not be granted unless the applicant shall make affidavit setting forth sufficient cause to entitle him thereto; and article 945 reads as follows: “To constitute a sufficient cause, the facts stated must show that either the justice of the peace had not jurisdiction, or that injustice was done to the applicant by the final determination of the suit or proceeding, and that such injustice was not caused by his own inexcusable neglect.”

Article 947 provides for the filing of a bond with two or more good sufficient sureties, to be approved by the clerk, payable to the adverse party, in such sum as the judge shall direct, to the effect that the party applying therefor will perform the judgment of the county or district court, if the same shall be against him. Article 949 provides that the writ of certiorari will issue instanter when the affidavit, order of the.judge, and bond, shall have been filed; and article 950 provides that upon service of such writ of cer-tiorari being made upon the justice of the peace, he shall stay further proceedings on the judgment and forthwith comply with said writ.

We believe it clear from the allegations in the relators’ petition for the mandamus that they had an adequate remedy by certiorari proceedings to have the case brought up to the county court, and for that reason we conclude that the county court did not err in refusing to grant the writ of mandamus.

Accordingly, all assignments of error are overruled, and the judgment of the trial court is affirmed.