Volume 103 — Texas Reports

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Mrs. M. B. Huber and another, appealed from a judgment for defendant in their action against the Texas & Pac. By. Co. The judgment was reversed and cause remanded on the ground that the defendant’s application to remove the action to the Federal Court should have been granted, but on motion for rehearing this ruling was set aside and the judgment reversed and cause remanded for errors on the trial. The railway company then obtained writ of error from the Supreme Court.</p>

<p>Master and Servant—Safe Place to Work—Proof of Negligence.</p> <p>A servant, employed to load ballast, throwing it with a shovel from a bank of the ballast onto a flat car on a track alongside of same, built for the purpose and moved nearer from time to time as the material nearest the track was loaded, was injured by stepping into a hole in the ground filled with loose dust fallen, in the process of loading. Held, that, in the absence of proof as to how the hole was caused, how long it had existed, or of knowledge of its existence by any servant for whose negligence with respect thereto the master would be liable, there is no evidence of negligence to support a recovery against the master. No inference of such knowledge or negligence arose from the mere existence of such hole under the circumstances.</p>

Shelton and others sued Haring and another for the recovery of land, and had judgment which was affirmed on appeal by defendants, who thereupon obtained a writ of error.

The guardian of a minor obtained writ of error on affirmance of a judgment for plaintiff, S. B. Hopkins, for the recovery of land.

<p>Original application to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office.</p>

Dilley obtained writ of error on the affirmance, upon his prosecution of error, of a judgment denying him relief on his motion in a receivership case.

The Driving Club obtained injunction against the Fair Association and others, forbidding the sale of liquor on the leased premises. On appeal by defendant the Court of Civil Appeals dissolved the injunction and dismissed the case, and plaintiff obtained writ of error.

<p>1. —Harmless Error—Requested Charge.</p> <p>Refusal of a charge submitting an issue is not ground for reversal where the verdict rendered involves a finding against the complaining party on such issue. (P- 30).</p> <p>2. —Same—Cutting Timber—Damages.</p> <p>Where the verdict against defendant in an action for damages for cutting timber was rendered for the value of same after it was manufactured into lumber by defendant, and was rendered under an instruction which allowed such measure of damages only in ease defendant was found to have cut it intentionally and wrongfully, the verdict must have been the same if the issue of whether defendant was misled and plaintiff estopped by representations of plaintiff as to the boundaries of his land had been submitted, and refusal to submit it was not ground for reversal. (P. 30).</p> <p>3. —Mistake—Care—Prudent Person—Charge.</p> <p>An instruction requiring of a defendant charged with wrongfully cutting timber on the land of another the care which a “prudent person” would have exercised in regard to ascertaining the boundaries of his own and plaintiff’s land, meant the same as the care of an “ordinarily prudent person,” and defendant, if desiring a more specific charge, should have requested it. (P. 30).</p> <p>4. —Estoppel—Pointing out Boundaries.</p> <p>One pointing out, by his agent, the boundaries of land sold, is not estopped thereby if the purchaser has the means of readily ascertaining the true facts and fails to exercise them. (Pp. 30, 31).</p> <p>5. —Same.</p> <p>It seems that the rules of estoppel do not apply to representations as to the beundaries between estates. (P. 31).</p> <p>6. —Interrogatories—Taking as Confessed.</p> <p>A ruling that interrogatories to a party to the suit were to be taken as confessed by his refusal to answer them, if erroneous, was cured where such party was permitted, without objection, to testify upon all the points inquired about in the interrogatories. (P. 31).</p>

Reynolds sued the railroad company for damages for personal injury and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

Yansickle sued Watson and others for foreclosure, and appealed from a judgment of partial recovery. The Appellate Court reversed and rendered a judgment upon which both appellant and appellees applied for and obtained writs of error.

Mrs. Hess appealed from a judgment recovered by Webb and others and obtained writ of error from a judgment reforming and affirming in part and in part reversing and remanding the judgment of the trial court.

<p>Questions certified from the Court of Civil Appeals for the First District in an appeal from Jefferson County.</p>

<p>1.—Charge—Contributory Negligence—Affirmative Error.</p> <p>Where the pleading and evidence presented the issue whether plaintiff, who was injured by falling by night into an unguarded railway cut near the line of a highway where he' was walking, was negligent in choosing a way known to be dangerous under the circumstances, rather than another and safe one available to him, a- charge directing a verdict for plaintiff if defendant was negligent with respect to the excavation and plaintiff was using ordinary care while traveling the road and strayed therefrom accidentially, presented affirmative error, and not a mere omission. (Pp. 58, 59).</p> <p>¡2.—Contributory Negligence—Use of Dangerous Way.</p> <p>' Where plaintiff, having a defect in his sight, walking home on a dark and stormy night, selected a way with knowledge that it ran near a deep and dangerous railway cut, there being another and safe road equally available, the question of his contributory negligence in choosing the dangerous way .was presented, and if so found constituted a defense, independent of his negligence in the manner of his use of the way selected, which defendant was entitled to have submitted under a requested instruction properly grouping the facts constituting such defense. (P. 59).</p>

Belden sued the gas and electric company, and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Fifth District in an appeal from Hill County.</p>

<p>Error to the Court of Civil Appeals for the Sixth District in an appeal from Grayson County.</p> <p>Pollock sued the railway company and obtained judgment which, upon defendant’s appeal, was reversed and remanded for insufficiency of the evidence to sustain a recovery. Appellee Pollock thereupon obtained writ of error on the ground that the ruling of the Appellate Court holding the evidence insufficient in law practically settled the case.</p>

<p>1. —Master and Servant—Safe Place to Work—Charge.</p> <p>An instruction holding that it was the duty of the master to exercise ordinary care to furnish its employees a safe place in which to work was properly given in a case where a section hand of a railway was injured while carrying switch ties, unloading for repair of track at a station, by falling over iron rails left between the tracks in the yards and permitted to become obscured from sight by the growth of grass over them. (Pp. 74, 75).</p> <p>2. —Evidence—Report of Accident.</p> <p>Where plaintiff’s counsel had asked a witness for the defendant railway if he had made a report to defendant of the accident, no eror appeared in excluding the report when offered by defendant in the absence of a showing that it differed from the evidence given on the stand or of any other reason why it should have been admitted. (P. 75).</p>

Williams brought the suit against the Detroit Oil & Cotton Company, and appealed from a judgment in his own favor, but for the sum of $1.80 only. On its affirmance he obtained writ of error.

<p>1.—Statute—Repeal by Implication.</p> <p>The repugnancy essential to the repeal of an old statute by a new one is not limited to the implication, from the use of language in the latter, of inconsistency with the former law; it is enough that the new enactment discloses an obvious intent that it should supplant the old. (P. 82).</p> <p>3.—Depositions—Return—Certificate of Postmaster.</p> <p>The act of April 12, 1907 (Laws 30th Leg., p. 186) providing that the officer taking the same shall certify on the envelope that he deposits the same in the mail for transmission, substituted such precaution for the requirement of an indorsement by the postmaster that he received them from the hands of the officer before whom they were taken, contained in article 2286, Revised Statutes, and operated as a repeal of that portion of such article. (Pp. 80-82).</p> <p>3.—Same—Express Repeal.</p> <p>The provisions of article 2291 f, added to the Revised Statutes by the Act of April 12, 1907, dispensing with the requirement of any indorsement by the postmaster on the envelope in which depositions were returned to court, applied, in the use of the words “such depositions,” as well to those taken on written interrogatories under article 2284, as to those taken on oral examination under articles 2291b and 2291c, and was an express - repeal of such requirement in article 2286 of the Revised Statutes as to depositions of either sort. (Pp. 81, 82).</p>

<p>Error to the Court of Civil Appeals from the Sixth District in an appeal from Dallas County.</p> <p>The First Texas Chemical Manufacturing Company sued the Walker Chemical Company and Cherry and obtained judgment. Cherry appealed and on affirmance procured writ of error.</p>

<p>1.—Judgment—Execution—Injunction—Jurisdiction.</p> <p>A judgment defendant can maintain suit against the plaintiff in judgment and others claiming to control the issuance of execution, in a court other than that rendering the judgment, to determine the right to control it; a judgment in such case divesting the plaintiff in judgment of its ownership and enjoining him and the clerk and sheriff from issuing or levying execution, was not void on the ground that it was beyond the power of the one court, by injunction against the officers of the other, to deprive the latter of the right to control its own processes and execute its own decrees. (Pp. 87, 88).</p> <p>2.—Same—Presumption in Support of Judgment.</p> <p>In an action by a plaintiff ,in judgment in the District Court for damages against the clerk of the court and his sureties for refusal to issue an execution thereon, a judgment of another District Court enjoining such clerk from so doing will, in the absence of proof, be presumed to have been rendered upon issues which would support the jurisdiction of the court to render such decree. (P. 88).</p>

<p>Certificate of dissent from the Court of Civil Appeals for the Second District, in an appeal from Dallam County.</p>

<p>School Land—Competing Bids—Transmission by Mail.</p> <p>One whose bid for the purchase of school land under the Act of April 15, 1905, was not on file with the Commissioner of the General Land Office on the day set for opening bids and awarding land to applicants, can not complain of the award of same to a purchaser offering less, though his application was mailed in time to have been received and considered if delivered in the usual course of the mail (Byrne v. Robison; ante 20, followed).</p>

Original application to the Supreme Court for writ of mandamus requiring the Commissioner of the General Land Office to reinstate petitioner in his purchase of school land which had been canceled by respondent.

<p>1. —Trial by Court—Findings of Fact and Law—Bill of Exceptions.</p> <p>Questions certified from the Court of Civil Appeals for the Sixth District in an appeal from Tarrant County.</p>

Kimball and others sued the oil company and others for the recovery of land, and obtained judgment. This was affirmed on appeal by defendants, who thereupon obtained writ of error,

<p>1.—Judgment—Description of Land.</p> <p>In determining the sufficiency of the description in a judgment, as in a deed, to identify the land recovered, where there is an evident mistake in the calls, the court will, if practicable, find and correct the mistake so as to give effect to the recovery. Mansell v. Castles, 93 Texas, 414, followed. (Pp. 113, 114).</p> <p>i$.—Same—Correcting Mistake by Construction of Calls.</p> <p>See field notes in a judgment held to contain a description of land capable of identification, though in order to give them such effect it is necessary, by construction, to correct a mistake in one call and to supply another which was omitted. (Pp. 113, 114).</p> <p>3. —Practice on Appeal.</p> <p>In constructing the calls describing land in a judgment appealed from for the purpose of testing its validity, the appellate court may look to the evidence to aid it in interpreting the judgment where the facts on which it was found are in the record. (P. 114).</p> <p>4. —Estoppel—Acceptance of Deed.</p> <p>One to whom land has been sold and conveyed, by thereafter accepting from his grantor a deed with different description of the lands conveyed, reciting that they are the same sold and described in the former deed and that the second is made “to give a more full and complete description of said lánd,” is estopped thereby from claiming under such purchase land described in the first but not in the second deed. Such estoppel was matter of law, which the court should have determined, and not have left to the jury. (Pp. 114, 115.</p>

<p>1.—Constitutional law—Title of Statute.</p> <p>The law substituting a county depository (a bank paying interest on the deposit) for the county treasurer, as custodian of the school fund, by adding section 154a to the laws relating to public schools (Act of February 18, 1909, Laws 31st Leg., pp. 17, 22) was not invalid because not expressed in the title of the Act as required by the Constitution. (Art. 3, sec. 35). (P. 118).</p> <p>2. —Same.</p> <p>The Act of February 18, 1909, Laws of 31st Leg., p. 17, being for the purpose of putting into effect a constitutional amendment covering the entire provision for the raising of funds for the support of public schools, could properly provide, as a part of such purpose, for the safekeeping and application of such funds, and the designation in its title of the articles to be amended in the existing law and the article to be added thereto was as full and clear a statement in a brief and general form of such purpose, in the title of the Act, as could be required. (P. 118).</p> <p>3. —Constitutional Law—Officer—Corporation.</p> <p>The custody of the school fund is not an official duty, nothing in the Constitution requiring it to be kept by an officer, such as the Legislature would be without power to commit to a mere agent or employee, and such agent may be a banking company though a corporation could not hold public office. (P. 118).</p> <p>4. —National Bank—County Depository.</p> <p>A national bank, being authorized to receive deposits, may act as a county depository of school funds, and receive same under the regulations prescribed by the state law for the making of such deposits, as it could arrange the terms with any other depositor. Nothing in the regulation by the State of the terms on which its officers are authorized to make such deposits could be taken as an interference by the Legislature with the management of the bank. (Pp. 118, 119).</p>

<p>1. —Appellate Courts—Conflicting Decisions—Civil and Criminal.</p> <p>The Court of Criminal Appeals being the court of last resort in criminal matters, its decisions upon a question involving the penal laws, such as those prohibiting the sale of intoxicants, should be followed by the Civil Courts where the same question becomes incidentally involved in a civil proceeding. (P. 120).</p> <p>2. —Same—Intoxicating liquors.</p> <p>The Court of Criminal Appeals having, in 1904, held void an election under the Local Option Law, ordered and held in seven of the eight justice precincts in a county, and the state, county and towns in such precincts having thereafter followed such decision in issuing licenses to liquor dealers in such territory, the ruling of that court on such question should be treated as authoritative by the District Courts and Courts of Civil Appeals, in a subsequent action to enjoin a licensed liquor dealer within such territory from pursuing his occupation, on the ground that the election in question was legal and prohibition of the business in the territory embraced wras adopted thereby; and this although in a civil suit—contested election—the Supreme Court may have taken a contrary position on the same question of law. (Pp. 120-122).</p> <p>3. —Cases Discussed.</p> <p>Ex parte Herman, 45 Texas Grim. App., 532, and Commissioners Court of Nolan County v. Beall, 98 Texas, 104, followed, and Griffin v. Tucker, 102 Texas, 420, limited. (Pp. 120-122).</p>

Original application by Johnston and others to the Supreme Court for writ of mandamus requiring the Secretary of State to file the cor-, porate charter offered by relators.

In the matter of the transfer of causes from one Court of Civil Appeals to another of the purpose of equalizing the dockets of said courts:

<p>Questions certified from the Court of Civil Appeals for the Fifth District in an appeal from Hill County.</p>

<p>Questions certified from the Court of Civil Appeals for the Fifth District in an appeal from Dallas County.</p>

<p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from FTueces County.</p>

<p>Original application to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office.</p>

<p>X.—limitation—Community Property—Bond of Survivor.</p> <p>The surviving husband, having given bond to account to the heirs of the wife for thdir interest m community property and sold same, became liable thereupon to an action by the heirs for their interest in the proceeds, and limitation then began to run in favor of him and the sureties upon his bond against such action. The doctrine that his possession of the community property would not he deemed adverse to the heirs, his cotenants therein, does not apply in such case. (Pp. 151, 152).</p> <p>2.—Same—Cases Discussed.</p> <p>Miller v. Miller, 34 Texas Civ. App., 367, followed, and Taylor v. Taylor, 6 Texas Civ. App., 496, distinguished. (P. 152).</p>

<p>Venue—Railway—Lumber Company—Receivers.</p> <p>A lumber company owning and operating by authority of its charter, and as an incident to the operation of its saw mills, etc., a tram railway, four miles long and run with locomotive engines and cars, was not strictly a “railroad corporation” within the meaning of the statute fixing the venue in actions against such latter companies (Act of March, 1901, Laws 17th Leg., p. 31) ; but receivers operating its property under orders of the court are “receivers operating a railroad in the State;” they come within the literal terms of the Act, and suit against them by an employee injured in such operation of trains may be brought in the county where the injury was received or that in which plaintiff resides; it need not be in the county of the company’s principal office.</p>

<p>Error to the Court of Civil Appeals for the Fourth District on error from El Paso County.</p> <p>Williams sued Murphy and wife and had judgment. Defendants appealed and on affirmance obtained writ of error.</p>

J. F. Keith and another sued Guedry in trespass to try title and defendant had judgment. Plaintiffs appealed and on affirmance obtained writ of error.

<p>1. —Practice in Supreme Court—Judgment Settling Case.</p> <p>Writ of error having obtained by appellee on the ground that a judgment of reversal and remand practically settled the case, the Supreme Court, approving the ruling on appeal, render judgment for defendant in error. (Pp. 169, 172).</p> <p>2. —landlord and Tenant—Disputing lessor’s Title.</p> <p>The rule precluding a tenant from disputing his landlord’s possession, applies to suits to determine the right to possession but not to an action by the landlord to establish title or for partition, in which a recovery by plaintiff would estop defendant from subsequently asserting his title. McICie v. Anderson, 78 Texas, 209, followed, and Tyler v. Davis, 61 Texas, 674, distinguished. (Pp. 171, 172).</p> <p>3. —Same—Trespass to Try Title.</p> <p>Plaintiff sued in the usual form of trespass to try title, with indorsement that the suit wTas as well to try title as for damages. A second count alleged that defendant had entered into possession as plaintiff’s tenant- and refused to surrender same. The title, which was in another, was acquired from him by defendant after he received possession. Held that he was not precluded from asserting his title against plaintiff in such form of action. (Pp. 170-172).</p>

<p>1. —Master and Servant—Negligence—Res Ipsa Loquitur.</p> <p>The occurrence of an accident such as in the ordinary course of things does not happen without negligence, as the derailment of cars, affords evidence of negligence; but it does not establish negligence of the defendant where the particular thing causing the accident was not under his exclusive management and control, but was wholly or partially under that of the injured party, his servant. (Pp. 174, 175).</p> <p>2. —Same—Case Stated.</p> <p>A servant, employed in a coal mine, was killed by the derailment of coal cars at a switch; it was his business to turn this by hand and to give proper signals in order to control the movement of the cars and their direction on to the proper track; he was seen on their approach pounding with a rock upon the switch point, which was apparently out of order, then to throw down the rock and jump out of the way of the approaching cars which he would have escaped but for the derailment. There was no proof as to the nature of the defect in the switch, or that it had failed to work before. Held, that the evidence, while sufficient to raise an inference of negligence, failed to show that the fault was attributable to the master rather than to the servant and did not support a recovery for his death. (Pp. 173-175).</p>

Patton sued Minor and another in trespass to try title. Defendants had judgment which was affirmed on plaintiff’s appeal. He then obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Second Supreme Judicial District in an appeal from Nolan County.</p>

Cobb sued the telegraph company and had judgment, which being affirmed on appeal by defendant it obtained writ of error.

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Bell County.</p> <p>Jones sued the railway company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.</p>

The Missouri, K. & T. Ry. Co. of Texas and the Et. Worth & D. C. Ry. Co. by separate petitions, each obtained writ of error on a reversal by the Appellate Court of the judgment of the District Court of Hays County on appeal by Blanks, plaintiff in the court below. The issues and the judgments appealed from were as stated in the second paragraph of the head notes above. The writ was granted on allegation of conflict of decisions.

Original' application to the Supreme Court by the Aetna Insurance Company, for writ of mandamus against Wm. E. Hawkins, Commissioner of Insurance for the State, to require the issuance of a certificate of its right to do business in the State.

<p>Questions certified from the Court of Civil Appeals for the First District in an appeal from Harris County.</p>

Original application by Meador to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office, Cooper, who was adversely interested, being made corespondent.

Action by Reuben Ryle and others against John Davidson and others, for the recovery of land. There was a verdict and judgment for defendants and plaintiffs appealed. Held: was that of an innocent purchaser for value, as against the older unrecorded conveyance, under which it was claimed by plaintiff^, rendered judgment for appellants. Appellees then obtained writ of error.

<p>Error to the Court of Civil Appeals for the Third District in an appeal from Travis County.</p> <p>Stacy sued Hancock and recovered judgment. Defendant appealed and upon affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Fifth District in an appeal from Grayson County.</p> <p>Williams and others sued the railway company and recovered judgment which was affirmed on appeal by defendant, ivho thereupon obtained writ of error.</p>

Powell and another sued Whitman and wife for the recovery of land, and had judgment. Defendant appealed, and on affirmance obtained writ of error.- A former suit between the parties over the same property is reported as Whitmire v. May, 29 Texas Civ. App., 244. Affirmed in Whitmire v. May, 96 Texas, 317.

<p>1.—Deposition—Return—Certificate ón Envelope.</p> <p>Under article 2284, Rev. Stats., as amended by the Act of April 12, 1907 .Laws 30th Leg., p. 186) the requirement that the officer taking depositions shall certify on the envelope enclosing them that he in person deposits the same in the mail for transmission, if it be held that to certify requires attestation by his seal, is substantially complied with although the endorsement so signed by him is not authenticated by his seal placed on the envelope, where his certificate to the depositions enclosed is authenticated by his seal and the genuineness of his signature on the envelope can be verified by that so attested by his seal inside. (Pp. 238, 239).</p> <p>2.—Same—Certify.</p> <p>It seems that the word “certify,” in the requirement as to the endorsement on the envelope containing depositions by the officer taking them, should be given the same meaning as it receives when used in the same section of the act as to the attestation of the deposition itself by certificate of the officer taking it, and be taken as meaning a certificate attested by his seal. (Pp. 237, 238).</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Collin County.</p>

<p>1.—School Land—Sale of Timber—Purchase of Land by Assignee.</p> <p>Where application is made to purchase school land under section 8, of the Act of April 19, 1901, Laws 27th Leg., pp. 292, 297, the right being claimed by virtue of a previous sale of the timber thereon and ownership of the timber by the applicant, the Commissioner of the General Land Office is not required, if indeed he is authorized, to inquire into and determine the right of applicant to so purchase where his claim to ownership of the timber is of an equitable right only, arising from his having furnished the money to purchase it when the actual transfer of title was to another. (P. 243).</p> <p>2.—Same—Case Stated.</p> <p>L. purchased from the State the timber on a tract of school land, transferred his right to S., who in turn conveyed it to the E. McM. Lumber Co. This conveyance recited that the purchase money was paid by such Lumber Co. and by E. The latter, who was president of the Lumber Co., within five years from the sale of the lumber by the State, applied to purchase the land, asserting the right to do so under section S, of the Act of April 19, 1901, as being a vendee of the title to the lumber by reason of having furnished the money to purchase same when it was conveyed to the Lumber Co. Held that his application to purchase was properly refused by the Land Commissioner. (Pp. 241-243).</p>

The irrigation company brought the action against Davis and wife and Brooks and judgment was rendered for defendants. Upon plaintiff’s appeal the judgment was reversed and rendered in its favor and appellee thereupon obtained writ of error.

<p>Contributory Negligence—Person on Railway Track—Question of Pact.</p> <p>Where a railway track was so frequently used by pedestrians without objection that one so doing could not be held a trespasser, plaintiff, coming on same, at a point where an approaching train could have been seen a mile away, none then being visible, and traveling on the track at a trot for 150 yards, when he was struck by a train coming on him from behind, could not be held, as matter of law, to have contributed to the injury by his own negligence in failing to look back for an approaching train during the short interval when he was so upon the track.</p>

Quinn sued the lumber company for personal injuries. Judgment was for defendant under a peremptory instruction, and was affirmed on appeal by plaintiff, whereupon he obtained writ of error. ■

<p>Case Followed.</p> <p>The rulings in Texas Central Eailroad Co. v. Boesch, post, followed and held to control the disposition of this case.</p>

<p>1. —Negligence—Operation of Train—Frightening Horse.</p> <p>Liability for frightening a horse on a highway near the railway tracks by the noise or escape of steam usual in its operation, arises only on discovery by the one operating the engine of its nearness and the danger of alarming it; but if the noise and escape of steam is unnecessary and unusual the operatives should be held under a duty to use circumspection and see that no teams are in a position to be frightened thereby. Charge held erroneous under this rule. (P. 258).</p> <p>2. —Same—Case Approved.</p> <p>Hargis v. St. Louis, A. & T. Ey. Co., 75 Texas, 19, approved and opinion of Court of Civil Appeals herein disapproved as in conflict therewith. (P. 259).</p>

<p>Error to the Court of Civil Appeals for the Fourth District in an appeal from El Paso County.</p> <p>Walker sued the El Paso Electric Railway Company and appealed from a judgment in favor of defendant. Ón affirmance he obtained writ of error.</p>

Mrs. Gaines sued Bagley, Butherford and others for recovery upon a promissory note and foreclosure of lien and obtained judgment. Defendants appealed, and on affirmance Butherford obtained writ of error.

<p>Foreign Corporation—Permit to do Business—Negotiable Note—Innocent Purchaser.</p> <p>An innocent purchaser of a negotiable note given to a foreign corporation not having a permit to do business in Texas, for the construction of a factory in the State, may sue and recover thereon in the Courts of Texas. The statute (Eev. Stats., art. 746) while denying the payee the right to sue thereon, does not make the note void.</p>

Andrews, Beynolds & Company sued the railway company for damages and penalties for failure to furnish cars as demanded, and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

Action by Mrs. Openheimer to obtain construction of a will. Defendant appealed from the judgment, and on its affirmance obtained writ of error.

<p>1. —Agency—Sale of Land—Commissions—Title.</p> <p>An agent, who has found a purchaser for land under a contract with the owner for a commission, on its sale, by which the owner agrees to furnish an abstract and “clear title” to the purchaser, is entitled to his commissions where the purchaser refuses to carry out the trade because the owner can not show good title. (P. 284).</p> <p>2. —Same—Binding Contract.</p> <p>The land agent has earned his commissions where he produces a purchaser willing to complete the trade on the terms offered or one who makes a binding contract to do so; it is not necessary that both willingness and contract concur; and it is immaterial that the contract made by the' owner with the proposed purchaser bound the latter in the alternative, to buy or forfeit a deposit of earnest money, if the latter refused to complete, not by availing himself of the alternative, but because being willing to complete, he was dissatisfied with the title offered. (Pp. 284, 285).</p> <p>3. —Same—Clear Title.</p> <p>To justify a refusal to comply with an agreement to purchase land to which the seller has undertaken to give clear title, it is not necessary that the title be bad; it is enough that it does not appear that it is good. (P. 285).</p> <p>4. —Same—Defect—Execution Sale—Judgment—Service by Publication.</p> <p>A sale under execution on a personal judgment obtained by citation by publication is insufficient to show clear title in the purchaser in the absence of proof that the defendant in judgment was a resident of the State. (P. 285).</p> <p>5. —Same—Title by Limitation.</p> <p>It is questioned whether a purchaser, who has contracted for a clear title, can be required to accept one dependent on proof of title in the seller by limitation, but, if so, such prbof is here held insufficient. (P. 285).</p>

The suit was- brought by Wiseman against Mrs. Swain and the Fidelity & Deposit Company. Judgment was for plaintiff against Mrs. Swain, but in favor of the Fidelity & Deposit Company. On Wiseman’s appeal the judgment was reversed and rendered in his favor against the Fidelity & Deposit Company, also. The company thereupon obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the First District in an appeal from Harris County.</p>

Kennedy and wife sued the lumber company for the recovery of land and obtained judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

Wren sued Scales and others in trespass to try title. Defendants had judgment which was reversed and rendered for plaintiff on his appeal. Appellees then obtained writ of error.

Error from the Court of Civil Appeals for the Third District, in an appeal from Travis County.

<p>Homestead Donation—Residence—Abandonment.</p> <p>One, who, in compliance with the statute, has made application for a homestead donation and has completed the three years’ residence entitling him, on making proof thereof, to receive patent, but without filing in the Land Office the evidence of his occupancy of same for three years prescribed by the Statute (Act of August 12, 1870) has not complied with, the terms of the law entitling him to receive title from the -State, and is protected in his rights to such land only so long as he remains in possession. One who purchases the land from the State and receives patent while it remains so abandoned obtains the title as against such previous locator.</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Hartley County.</p> <p>Blanton and others brought suit against Nunley and others for the recovery of land and defendants had judgment. Plaintiffs appealed and on judgment being reversed and rendered for appellants, appellees obtained writ of error.</p>

Chase sued the street railway company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fifth District in an appeal from Grayson County.</p> <p>Johnson sued the railway company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.</p>

<p>Original application to the Supreme Court by the Glen Falls Insurance Company for a writ of mandamus requiring Hawkins, as Commission of Insurance, to issue it a permit to do business in Texas.</p>

<p>Questions certified from the Court of Civil Appeals for the First District in an appeal from Harris County.</p>

. Wiley and others sued the railway company and recovered judgment. It was reversed and rendered in defendant’s favor on his appeal, and plaintiff, appellee, then obtained writ of error.

<p>1. —Receiver—Appointment—Court Acting on Pleadings.</p> <p>The court is not authorized to appoint a receiver upon a petition verified hy oath and alleging facts warranting such action where the existence of the necessary facts is specially denied in the answer of defendant and no evidence except the verified pleadings is before it. (P. 342).</p> <p>2. —Same—Rules of Equity.</p> <p>The adopting of the rules of equity in matters relating to the appointment of receivers (Rev. Stats., art. 1493) imports the rules of chancery pleading into such procedure, subject to such modifications as are involved in the statutes and rules of court governing pleading in this State. (P. 343).</p> <p>3. —Same—Rulings on Demurrer.</p> <p>In considering the ert'ect of sworn denials of the allegations of plaintiff for obtaining the appointment of a receiver, in order to determine whether such appointment should be made, the court need not act upon plaintiff’s exceptions to such pleading; but where it has acted upon them and overruled exceptions questioning their fullness and definiteness, they should be taken as sufficient in this respect in determining their effect upon the right to have the receiver appointed. (P. 343).</p> <p>4. —Receiver—Appointment—Appeal.</p> <p>The action of the trial court in appointing a receiver upon a verified petition and sworn denials alone, is not to be treated on appeal as a determination of the credibility of the respective affidavits, but as a construction of the two pleadings in order to see how far one meets the other, and is not binding upon the Appellate Court in the same way as a finding by the trial court on a question of the credibility of witnesses or the weight of evidence. (Pp. 343, 344).</p>

The Denison & Sherman Railway Company sued the city for injunction. Defendant had judgment and on plaintiff’s appeal this was reversed and judgment rendered in its favor. On this ruling defendant, appellee, obtained writ of error.

Moore sued the Texas Central, the Texas & Pacific and the St. Louis & S.. E. Railway Companies, and recovered against the first and the last named defendants. As to the latter, the St. Louis & S. F. Ry. Co., the judgment was reversed on appeal of both defendants, by a ruling settling the case in its favor, the judgment against the Texas Central being affirmed.

<p>Original application to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office, Maxey, an adverse claimant to purchase the land in controversy, being made corespondent.</p>

McElroy and others, defendants in an action for the recovery of land by Knox and another, obtained judgment on their plea in reconvention for damages by reason of sequestration of their property after plaintiffs had dismissed the suit for the land. Plaintiffs appealed and on affirmance obtained writ of error.

<p>Original application to the Supreme Court for writ of mandamus against the Attorney-General.</p>

Taylor sued the Texas & Pacific Railway Company and had judgment which was affirmed on appeal by defendant who thereupon obtained writ of error.

Error from the Court of Civil Appeals for the Sixth District, in an appeal from Travis County. Thompson sued the railway company and had judgment. Defendant appealed and the judgment was reversed and rendered in its favor. Missouri, K. & T. By. Co. of Texas v. Thompson, 55 Texas Civ. App., 12. Appellee then obtained writ of error.

<p>1.—Judgment—Appeal.</p> <p>The judgment of the Court of Civil Appeals setting aside that of a trial court and substituting its own as the final disposition of the entire cause has the same effect as if it had been rendered by the lower court at the end of the trial and no appeal had been taken. (P. 384).</p> <p>2. —Res Adjudicata.</p> <p>The necessary legal effect of a final judgment is to determine finally a cause of action set up in the pleadings and pending for decision in the courts when that judgment is pronounced, unless the court exclude it from the scope of its action; and this whether the judgment result from actual decision or oversight of the court. That which is adjudged, is the decision of the court that it is all the parties are entitled to. (P. 385.)</p> <p>3. —Same.</p> <p>When, although the cause of action is not the same in the second as in the first suit, it is claimed that a party to the second is estopped upon a question common to both which was decided in the first, it is sometimes important to inquire whether or not the particular question was tried and decided in the courts in which the judgment was rendered, but such inquiry is out of place where the cause of action is the same in the two suits and a final judgment on the merits has been rendered on the first. (P. 385.)</p> <p>4. —Same—Failure to Introduce Evidence.</p> <p>One who has filed a plea in reconvention may withdraw or discontinue it before trial and thereafter bring his independent action for damages sustained; but he can not submit his cause for decision upon pleadings raising such an issue, and afterwards be heard to say that it was not involved in a final judgment, merely because he introduced no evidence to sustain it and no mention was made of it. The absence of evidence constitutes the best of reasons for denying it, and the failure to sustain it is a denial of it. (P 385.)</p> <p>5. —Same.</p> <p>A judgment is to be taken as disposing of all the issues pending for decision under the pleadings in the cause, unless the court exclude some of them from the effect of the adjudication. Where defendant in a suit for injunction pleaded in reconvention a claim for damages caused by its wrongful issuance and service, and, the injunction being there made perpetual, obtained, upon appeal, judgment reversing this and decreeing the plaintiffs take nothing by their action, but making no mention of his plea in reconvention for damages, this was a final judgment precluding him from recovery in a subsequent action of damages sustained by him from the injunction up to the time of the first trial. (P. 386.)</p> <p>6. —Injunction—Damages.</p> <p>One who, by an injunction at suit of the owner of land, had been wrongfully restrained from moving or interfering with a building thereon, which he claimed to own, was not entitled to recover as damages the rental value of expensive tools or apparatus placed by him undar such house for the purpose of removing it, and constituting the support of the building. His removal of the machinery and substitution of a less costly support would not have been an interference with the building in the sense of such writ of injunction. (Pp. 386, 387.)</p>

Barnes sued the Street Bailway Company and had judgment which was reversed and remanded on defendant’s appeal. Appellee obtained writ of error, jurisdiction attaching on the ground of a dissenting opinion having been filed in the Appellate Court.

Original application to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office, Fitzgerald, an adverse claimant as lessee of the land sought to be purchased by relator, being made corespondent.

<p>1. —Public Lands—Settlement—Bight to Purchase.</p> <p>One who settled on and improved lands belonging to the State, with the intention of purchasing them, but took no further steps prescribed by law to obtain a right to purchase same in preference to other applicants, acquired no rights therein which could be the basis of an attack on the title of another who subsequently obtained patent from the State. (P. 394.)</p> <p>2. —Same—Patent—Who can Attack.</p> <p>The validity of a patent can only be attacked by the State or by some one who had acquired from the State a right in the land prior to that of the patentee. The effect of refusal of a writ of error in this case is limited to the approval of this ruling. (P. 394.)</p>

<p>The Supreme Court has no jurisdiction to disturb findings of fact by the trial court which are supported by evidence legally sufficient therefor, but will consider all the evidence to determine, as a question of law, its sufficiency to support a finding necessary to sustain the judgment. (P. 398.)</p> <p>Z.—Water Company—City—Forfeiture of Franchise.</p> <p>The general principles governing the right of a city to maintain action to forfeit the franchises granted by contract to a water company discussed and stated. State v. Morris & Cummings, 73 Texas, 442, approved. (Pp. 398, 399.)</p> <p>3.—Same—Sufficiency of Evidence.</p> <p>In an action by a city to forfeit the franchise granted to a water company by contract with the city • council whereby it acquired the right to erect and maintain its plant with pipes in the public streets, etc., the evidence is considered and held insufficient in law to support the following findings of fact by the trial court and a judgment of forfeiture based thereon:</p> <p>(1) That the water company was insolvent and unable to perform its contract with the city—it appearing that the company had always been able to meet the interest on its debt and its current expenses, and had a cash balance in its treasury, and had shown actual capacity for conducting its business, though there was evidence that its bonded indebtedness exceeded the value of its assets. (P. 399.)</p> <p>(2) That it failed to furnish, as undertaken by its contract, water suitable for domestic use and in quantities sufficient to meet the needs of the city and its citizeril for domestic use and for fire protection, there being evidence to show that the water submitted to chemical analysis by the city at a certain time and under then existing conditions was unfit for domestic use, but insufficient to establish the wilful and .persistent failure to furnish wholesome water in quantities and according to tests agreed on, which was necessary to authorize a forfeiture of the franchise. (Pp. 399, 400.)</p> <p>(3) That the company was never capable of discharging the amount of water and to the height stipulated in the contract, for fire protection, the evidence showing a formal acceptance of the plant by the city as a compliance with the contract and a failure to demand of the company tests of its capacity from time to time as provided by the contract. Palestine W. & P. Co. v. City of Palestine, 91 Texas, 540, distinguished. (Pp. 400, 401.)</p>

Geraldon sued the railway company and recovered judgment. Defendant appealed, and on affirmance obtained writ of error. The case on appeal is reported in 54 Texas Civil App., 71.

Rockwall County sued Roberts County and defendant had judgment. Plaintiff obtained writ of error upon the affirmance of such judgment on its appeal.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Jones County.</p> <p>Barnes sued the company and had judgment. Defendant appealed and on-affirmance obtained writ of error.</p>

Beeves and Lester obtained writ of error on a judgment affirming a recovery against them and others at suit of Mrs. McCracken.

Harris sued the railway company and obtained judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for the Sixth District on error from Bowie County.</p> <p>Hillman prosecuted error upon a judgment of the trial court in a suit brought by him against Gallagher and others, and on its affirmance obtained writ of error from the Supreme Court.</p>

<p>1. —School Land—Development of Water Supply—Lease—Renewal.</p> <p>One who had obtained a lease of school land under art. 4218t, Revised Statutes, by developing water where there was no permanent natural supply, was entitled to a renewal of same, on its expiration, for a like term, as provided by that article, without the land first coming on the market for sale. This provision for renewal of the lease was not repealed by the Act of April 4, 1895, sections 7, 17, 18 (Rev. Stats., arts. 4218r, 4218s) bringing school lands on the market for sale on the expiration of leases, these being general provisions not inconsistent with nor affecting the special right to renew provided for by article 4218t. (Pp. 431-434.)</p> <p>2. —Statutes—Implied Repeal.</p> <p>Implied repeals are not favored. There must be a positive repugnancy between the provisions of the new law and those of the old, and a general law will not be construed to repeal by implication previous particular legislation to which it does not refer. (Pp. 433, 434.)</p> <p>3. —Same—Statutory Revision.</p> <p>The action of the Legislature in embracing in a revision of the statutes an enactment previously passed considered as a legislative construction that it was not impliedly repealed by other enactments on the subject, also included in the revision. (P. 433.)</p> <p>4. —School Land—Lease—Renewal—Terms.</p> <p>The right of a lessee of school land under, article 4218t, Revised Statutes, to a renewal on the expiration of his lease, the rental price on renewal not being fixed by such article, will be taken to entitle him to renewal at a rental fixed according to the law existing at the time of such renewal. (P. 434.)</p>

<p>Negligence—Res Ipsa Loquitur.</p> <p>Evidence considered in case of injury of a licensee upon a footpath by the railway track struck by a loose and projecting door of a freight car on a passing train and held insufficient to establish negligence; there being no evidence as to the ownership of the car, how long it had been in defendant’s possession or defective, or facts showing that defendant was in fault in respect to its condition, the finding of negligence could not be supported by the doctrine of res ipsa loquitur.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Orange County.</p> <p>Stark obtained writ of error on the affirmance by the Court of Civil Appeals of an adverse judgment in an action by Stark & Elliott against Burkitt & Barnes.</p>

Gaskill sued the railway company and obtained judgment, which was affirmed on appeal by defendant. Appellee thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for the Sixth District in an appeal from Fannin County.</p> <p>H. and E. 0. Taylor sued for mandamus against the Board of Medical Examiners and obtained judgment. Defendants appealed and on affirmance obtained writ of error. The case on appeal is reported in 56 Texas Civ. App., 291.</p>

Oden and others obtained writ of error on a ruling of the Court of Civil Appeals sustaining a judgment of the trial court dissolving an injunction.

<p>Questions certified 'from the Court of Civil Appeals for the Fifth District, in an appeal from Limestone County.</p>

<p>1. —Deed—Married Woman—Acknowledgment—Limitation—Color of Title.</p> <p>The deed of a married woman of which the certificate of acknowledgment is fatally defective, though supported by parol proof that the previous examination and acknowledgment were made as the law required and that the failure of the certificate to show such facts was due to the officers’ omission, is insufficient either to pass title to the land or to show color of title under the three years’ statute of limitation. (Pp. 461, 465.)</p> <p>2. —Same—Cases Discussed.</p> <p>Looney v. Adamson, 48 Texas, 619, and Berry v. Donley, 26 Texas, 737, approved and followed. Johnson v. Taylor, 60 Texas, 364, distinguished; Hayden v. Moffett, 74 Texas, 650, criticised. Wiliams v. Ellingsworth, 75 Texas, 472, criticised and distinguished. Norton v. Davis, 83 Texas, 36, distinguished. Interstate Building & Loan Ass’n. v. Goforth, 94 Texas, 259, explained. (Pp. 461-465.)</p> <p>3. —Limitation—Nonresident—Action to Correct Certificate.</p> <p>Limitation runs against an action to correct the certificate of acknowledgment of a married woman’s deed though the defendants in the action were nonresidents over whom jurisdiction could not be obtained by service of process within the State..: (Pp. 465, 466.)</p> <p>4. —Action to Recover Land—Improvement—Good Faith.</p> <p>Defendant, in an action of trespass to try title, is not precluded from recovering the value of improvements made on the land, on the ground that he did not hold title in good faith, by the fact that he claimed under a deed by a married woman with a defective certificate of acknowledgment. (P. 466.)</p> <p>5. —Improvements on Land.</p> <p>The fact that defendant’s improvements upon the land which plaintiff sought to recover were alleged by him to consist of two houses of a certain value, the evidence showing four houses of that value, would not justify a denial of all allowance for improvements if made in good faith. (P. 466.)</p>

Action by the Casey-Swasey Co. against Anderson for the recovery of land. Plaintiff had judgment and defendant appealed. The judgment was affirmed and appellant obtained writ of error.

Original application to the Supreme Court for writ of habeas corpus by Young and Levine committed to imprisonment by the 'judge of the District Court of Navarro County for violation of a writ of injunction issued by that court.

<p>Original application to the Supreme Court by Lohmuller, for a writ of habeas corpus, against B. D. Lindsay, Sheriff of Bexar County, by whom relator was held in custody under a commitment for contempt by the District Court.</p>

Action was brought by the city of Victoria and it obtained writ of error on the affirmance by the Court of Civil Appeals of a judgment in favor of defendant Victoria County.

<p>Original application by Ashford to the Supreme Court for writ of mandamus against Goodwin as district judge.</p>

'Patching and others sued Hutchinson and others, school trustees, to enjoin the collection of a school tax. The trial court refused the relief sought and plaintiffs appealed. The Court of Civil Appeals reversed the judgment, and, the facts being undisputed, rendered judgment for appellants. Appellees then obtained writ of error.

<p>Mandamus—local Option Election.</p> <p>Except as to localities specifically designated by the Constitution as those within which elections for the prohibition of the sale of intoxicating liquors may be held, viz.: a county, justice precinct, town, or city, the designation of other subdivisions of a county in which such electiqns may be had is committed by the Constitution to the Commissioners’ Court of the County. The district judge properly refused to issue mandamus requiring the Commissioners’ Court to order such election in a territory covered by several justice precincts, and he could not be compelled to issue such writ by application to the Supreme Court for writ of mandamus against him.</p>

<p>Motion by Hammond for leave to file in the Supreme Court a petition for writ of mandamus against Ashe as district judge.</p>

Maggie M. Robertson and another sued the railway company and obtained judgment. Defendant appealed and the recovery was affirmed by a divided court, Judge Dunklin dissenting. Thereupon appellant obtained writ of error. The opinion of the majority of the Court of Civil Appeals and the dissenting opinion are here published, together with that of the Supreme Court, approving the dissenting opinion.

<p>1. —Master and Servant—Negligence—Dangerous Place to Work.</p> <p>A servant in the employ of a company boring a well for oil, while working at night, standing on planks laid horizontally on the frame work of a derrick, forty-five feet above the ground, was injured by his foot slipping, causing him to catch and crush his hand in the moving wheels of the hoisting tackle. Held: (1) He assumed the risk arising from the absence of light at the place he occupied by entering upon the service with knowledge that such place was unlighted. (2) He could not recover for alleged negligence in permitting the planks on which he stood to become slippery from mud and water, since the proof showed that such condition was necessarily caused by their contact with the pipes hoisted from the well from time to time-by the tackle. (3) The fact that the derrick was out of plumb, causing the planks on which he stood to slope toward the center of the derrick, was, under the evidence here considered, properly submitted to the jury to determine whether such condition established negligence on the part of the master and proximately contributed to cause plaintiff’s injury, and an affirmative finding thereon would support a recovery though other causes, for which the master could not be held liable, contributed to the result. (Pp. 516-521.)</p> <p>2. —Same—Voluntary Service.</p> <p>A servant who volunteers to work in a certain place, the service being within the scope of his employment but the question being which of several employees should undertake it on that occasion, is entitled to recover for injuries received in such service by the master’s negligence. He does not assume the risks of one who is a mere volunteer. (Pp. 521, 522.)</p> <p>3.—Charge—Affirmative Error.</p> <p>An instruction to find for defendant if certain facts were established could not be held affirmative error to defendant’s prejudice, though not all the facts enumerated were necessary to establish his defense. (P. 522.)</p>

Mrs. Ford sued and recovered against the insurance company the amount of an insurance policy on her husband’s life, together with statutory damages and attorney’s fees for refusal to pay on demand. On appeal by defendant the recovery of the amount of the policy was affirmed, but plaintiff was denied recovery of the penalty and attorney’s fees. Thereupon appellant and appellee each applied for writ of error, both applications being denied.

Kirby sued Boaz and others for the recovery of land. Defendants having judgment, he appealed, and on affirmance obtained writ of error.

<p>1. —Pleading—Exhibit—Mortgage—Description.</p> <p>An exhibit made a part of plaintiff’s petition can not be used for the purpose of setting out his cause of action, but may aid the allegations of the petition so as to make certain that which otherwise would be indefinite. In an action to foreclose a mortgage so exhibited, that instrument may be looked to for the purpose of identifying the property on which foreclosure was sought and obtained and adding to the description items in the mortgage omitted in the body of the petition. (P. 533.)</p> <p>2. —Same—Correction of Judgment.</p> <p>The entry on the judge’s docket showed a recovery by plaintiff foreclosing his mortgage on the personal property described. The judgment as entered followed the description in the body of the petition omitting property included in the mortgage itself which was set forth as an exhibit. Held, that it was competent for the trial court, at a succeeding term, on due proceedings by plaintiff therefor, to correct the judgment so as to foreclose on the property as described in the mortgage, that being the judgment originally intended by him. (Pp. 531-534.)</p>

The action was brought by Votaw and others to recover land from Holland. The land was separate property of Mrs. Carr, a married woman, who, in 1860, joined by her husband, made a deed under which defendant claimed title. The certificate of privy examination and acknowledgment by her was not in compliance with the statute.

The rice company sued Broussard and others, rice millers, for the value of their property destroyed by fire in defendants’ hands. Plaintiffs recovered judgment. Defendants appealed, and on affirmance obtained writ of error. Plaintiff’s claim for recovery was based on the issue of the existence of a contract by defendants to insure for full value, implied (1) - from the course of dealing between the parties, or (2) from the general custom of rice millers in that locality.

Shirley sued Coffin and others, and appealed from a judgment in favor of defendants. On its affirmance he obtained writ of error.

The Stark Grain Company had judgment against the Missouri, IC. & T. By. Co. and the Missouri, K. & T. By. Co. of Texas, which was affirmed on appeal. Both appellants then obtained writ of error.

The Emporia Lumber Company, whose vendee, the Thompson Lumber Company, was afterwards substituted as plaintiff, sued Tucker, and wife for the recovery of land, and appealed from a judgment by which it recovered one-half only of the land in controversy. On affirmance, appellant obtained writ of error.

Original application by Mrs. Brown for writ of mandamus against Robison, Commission of the General Land Office, O’Neal, an adverse claimant of the land, being made co-respondent.

<p>1. —Practice—Bills of Exception—Statement of Facts.</p> <p>The Act of May 1, 1909, Laws 31st Leg., p. 374, in providing that where the term of court may continue more than eight weeks the statement of facts and bills of exception shall be filed within thirty days after final judgment (proviso to sec. 7) is mandatory, and statement and bills filed later should be struck out on motion in the Appellate Court unless the time for such filing is shown to have been extended by order of the court. (Pp. 556, 557.)</p> <p>2. —Same—Extensions of Time.</p> <p>The statute (Act of May 1, 1909, Laws 31st Leg., p. 377, proviso to sec. 7) authorizing the court to extend the time for filing statement of facts and bills of exception beyond the limit prescribed (thirty days after judgment) does not require that order to be made before the expiration of such thirty days; it is sufficient if made later, but before the expiration of the term of court. (Pp. 556, 557.) '</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from the County Court of Harris County.</p>

<p>1,—Bankruptcy—Attachment.</p> <p>An adjudication of bankruptcy of a defendant whose property has been attached by a creditor suing in the State Courts within four months preceding vacates such attachment. (Bankrupt Law of 1898, secs. 67f, 67c). First National Bank v. Staake, 202 U. S., 146, followed. (Pp. 566, 567.)</p> <p>2.—Same—Case Stated.</p> <p>Plaintiff, in an action in the District Court, attached real estate as the property of defendant, a nonresident, making codefendant Ms grantee who was alleged to hold title in trust for him. Defendant answered that he was insolvent when the attachment was sued out and within four months was adjudged a bankrupt by the United States Court, a trustee in bankruptcy appointed, and himself finally discharged in bankruptcy. An agreed case showed that the adjudication was on a petition in voluntary bankruptcy; that the petitioner scheduled plaintiff’s debt among his liabilities, but not the attached property among his assets; that plaintiff did not prove up his claim in bankruptcy; that defendant was insolvent when attachment issued, but the fact was not known to plaintiS; that the trustee took no steps to subject the attached property to the claims of creditors. Held, that judgment was properly rendered for defendant on the pleadings and agreed case, the attachment being vacated by the bankruptcy proceedings. (Pp, 563-567.)</p>

Mrs. White and others brought suit and recovered judgment 'against the railway company. Defendant appealed and obtained writ of error on its affirmance.

<p>1. —Taxation—Insurance Companies.</p> <p>The tax imposed on fire insurance companies doing business in Texas, for the purpose of meeting the expenses of the Fire Eating Board (Act of April 19, 1909, sec. 16, Laws 21st Leg., p. 325) is to be assessed against any of such companies in the proportion which the gross premiums collected by it during the year bear to the aggregate of such premiums collected by all such companies for the same period, and it is the duty of the Commissioner of Insurance to certify the amount to be paid by each company in accordance with this rule. (Bp.. 573, 574.)</p> <p>2. —Same—Exemption of Certain Companies.</p> <p>The exemption from payment of the tax for expenses of the Fire Eating Board by the last provision of section 16 of the Act of April 19, 1909 (Laws 31st Leg., p. 315), of certain companies liable to an occupation tax of not less than two and one-half percent of the gross premiums received by them, does not authorize the Tax Commissioner to' assess the entire amount of $15,000 provided for such expenses against such companies only as are not liable to pay such amount of occupation tax under existing laws. The exemption given by that proviso appears to be intended to apply not to those paying such rate under existing laws, but to the effect of future laws then in contemplation." (P. 574.)</p> <p>3. —Statutory Construction—Constitutional Law.</p> <p>The construction of a statute which would render its validity doubtful under the Constitution, should be avoided, if possible. (P. 574.)</p> <p>4. —Mandamus.</p> <p>The Commission of Insurance can be required by mandamus to assess and certify a tax against a foreign corporation doing business in the State, in accordance with the proper construction of the law under which he is acting, when about to proceed, under a different construction, to impose a higher tax, the nonpayment of which would subject the party wronged to a declaration of forfeiture by him of its permit to do business in the State. (P. 574.)</p>

Mrs Erp, joined by her husband, sued Tillman for the recovery of land and had judgment therefor. Defendant’s appeal resulted in a reversal and rendition of judgment in his favor, and upon this appellees, plaintiffs, obtained writ of error.

' Lipscomb sued Fuqua and another and obtained writ of error on the affirmance, upon his appeal, of a judgment for defendants.

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Lee County.</p> <p>Wizig sued Beisert and others. Defendant had judgment which, on plaintiff’s appeal, was reversed and rendered in favor of the latter. Beisert then obtained writ of error.</p>

Mrs. Alexander and others sued the Houston & T. C. B. Co. for injuries from death of her husband. Judgment for plaintiffs having been affirmed on appeal by defendant, it thereupon obtained writ of error.

<p>Venue—Connecting Carriers—Terminal Transportation Company.</p> <p>A company owning and operating railway tracks and engines at a city, in the business solely of transporting shipments of live stock, arriving there on various railroads, to and from stock yards, and paid therefor by the railroads served, (Ft. Worth Belt By. Co.), was a transportation company within .the meaning of the Act of March 13, 1905, (Laws 29th Leg., p. 29) and was liable as such to the shipper, and to the railway held liable to him, for loss or damage by its default in handling the cattle. The railway company, when sued by the shipper for loss so occasioned could by authority of that Act, make such transportation company a party as the one ultimately liable, though the suit was brought in a county where such transportation company had no line or agent and did no business. The latter’s plea of privilege was improperly sustained.</p>

The Telegraph Company obtained writ of error on the affirmance, upon its appeal, of a judgment recovered against it in the District Court by MeDavid.

0 Zumwalt sued the railway company and appealed from a judgment for defendant. The company obtained writ of error on a judgment reversing and remanding.

<p>Eire Insurance—Avoidance of Policy—Attempt of Incendiary to Burn Building.</p> <p>Under a provision in a contract of insurance against Are that the policy should be void “if hazard be increased by any means within the knowledge or control of the insured” the insurance is not made void by reason of,the fact that, on an unsuccessful attempt by an incendiary to set Are to the building, the insured did not communicate such fact to insurer nor take precautions to guard against its repetition, and the loss was occasioned by a second incendiary Are. <</p>

<p>1. —Insurance—Warranty—Findings.</p> <p>It is questioned whether, in a case where an applicant for an insurance certificate in a benefit association had warranted that he had not been afflicted with ulcers or open sores, a finding by the jury that he had a single ulcer would require a verdict for defendant on the ground of breach of such warranty. (P. 615.)</p> <p>2. —Insurance—Application—Warranties.</p> <p>Evidence considered and held to show that various answers made in his application for a benefit insurance certificate and warranted to be true by the insured were so clearly shown to be untrue as to justify the court in directing a verdict so finding and render the submission of the issue as to their truth improper. (Pp. 614, 615.)</p> <p>3. —Same.</p> <p>Evidence considered and held to show clearly that an applicant for insurance had answered falsely the question whether he had changed his residence on account of his health and to require judgment for the insurer on the ground that his certificate was invalidated by his warranty of the truth of such statement. (P. 615.)</p> <p>4. —Same—Waiver by Insured.</p> <p>The failure of the insurer, on rejecting the claim of the beneficiary, to return the benefit certificate on which the claim was based, was not a waiver of its defense to such claim, where the by-laws required that such certificate should be kept by the association but the claimant was given the right to inspect it at any time. This was no embarrassment to claimant in the assertion of her right. (P. 616.)</p> <p>5. —Same.</p> <p>Where the claimant under a benefit certificate treated the claim as rejected by the committee on claims and board of trustees, by bringing suit within less than the ninety days within which, but for such rejection, the action was not allowed, she could not claim that the association had waived its right to contest the validity of the insurance, because of false warranties by the injured, by their failure to comply with the by-laws requiring the claim to be submitted to such authorities and providing for notice to and a right of hearing before them by the claimant. (P. 616.)</p>

Bell County sued Felts and others for the recovery of land. Defendants had judgment which, on appeal by plaintiff, was reversed and rendered, in part, in its favor by the Court of Civil Appeals. Appellees thereupon obtained writ of error.

King and others -sued the Carlisle Company for the recovery of land. Plaintiffs recovered and defendant appealed, and on affirmance obtained writ of error.

<p>1. —Garnishment—Bank—Deposit—Agent—Burden of Proof.</p> <p>A deposit in a bank to the credit of the depositor as “Agent” leaves him in full possession and control of the money deposited, and furnishes prima facie evidence of title in him, which is not destroyed, as against _ a garnishment by bis creditor, by his mere declaration, by the form of the deposit, that he holds it as agent for an undisclosed principal. (Pp. 630, 631.)</p> <p>2. —Same—Case Stated.</p> <p>A bank, garnished by a judgment creditor of R. M., held money on deposit to the credit of “R. M., Agent.” No evidence as to the ownership of the money was introduced on the trial of the garnishment proceedings except the testimony of the president of the bank that it held such deposit when the writ was served and subsequently paid it out on checks drawn by “R. M., Agent.” Held, that the garnishee was liable; prima facie the deposit belonged to R. M.; the burden was on the garnishee to show that the ownership was in another. (Pp. 630, 631.)</p>

<p>1. —Limitation—Adverse Possession—Extension of Boundaries—Question of Pact.</p> <p>Whether the extension of fences and improvements by one holding possession of a tract of land across the boundaries of an adjoining tract is sufficient to raise a question of fact as to an adverse holding against the owner of the latter tract, as to each case arising, must depend on its particular circumstances, and slight additional facts may suffice to take the question of adverse possession out of the province of the court and into that of the jury. (P. 635.)</p> <p>2. —Same—Case Stated—Cases Distinguished.</p> <p>In a case where one in possession of a tract of land as tenant, erroneously believing that an adjoining tract was public domain, extended his enclosure across the boundaries of the latter, erected a residence and other improvements thereon, and had 160 acres thereof surveyed, intending to acquire it from the State as a homestead donation, the evidence is considered and held to present a question of fact as to whether his possession so' held was adverse to the true owner. Bracken v. Jones, 63 Texas, 184; Holland v. Nance, 102 Texas, 177; Bender v. Brooks, 127 S. W., 168, distinguished. (Pp. 633-635.)</p> <p>3. —Adverse Possession—Patented Land Occupied as Public Domain.</p> <p>The mere fact that one in possession of land holds it in subordination to the State is not necessarily inconsistent with the conception of a holding in hostility to others, if openly disputing their claims to title while pursung a supposed right to acquire same from State. But the mere holding of it under the belief that the land is the State’s and with the purpose of acquiring it lawfully at some future time, does not define the attitude of the possessor as hostile to the claim of an owner of whose existence he is ignorant. (Pp. 636-638.)</p> <p>4. —Same—Case Stated.</p> <p>Possession of lands patented to another by the State was taken and held for ten years by one who believed it to be public land, with the intention of acquiring title from the State as a homestead donation. He disclaimed having so held it with intention to acquire by limitation the title of the true owner, of whose claim he was ignorant. Held, that his possession was not adverse to such owner, and he acquired no title by limitation against such owner. Schleicher v. Gatlin, 85 Texas, 272, limited and followed. (Pp. 636-638.)</p>

<p>Cities—Bond Issue—Street Improvement—Constitutional Law.</p> <p>The tax of fifteen cents on the hundred dollars for roads and bridges, permitted by the Constitution (art. 8, see. 9, as amended in 1890) to be levied annually by cities and towns, is not hereby restricted, in it's use, to current expenses for that purpose. The city may be authorized to issue bonds on its basis. The Act of May 12, 1909, Acts' 31st Leg., p. 444, authorizing cities to issue bonds for the improvement of streets based on the appropriation of such future taxation to meet interest and sinking fund is therefore not unconstitutional.</p>

<p>School Land—Certificate of Occupancy—Cancellation of Sale.</p> <p>After a purchaser of school land has, on making the required proof of his three years’ occupancy and improvement of the land, received from the Commissioner of the General Land Office the certificate of such occupancy provided by law, the Commissioner is without power to cancel the sale either for his failure to occupy the land as required or for collusion with others in making the purchase. Logan v. Curry, 95 Texas, 664, followed.</p>

<p>Original application to the Supreme Court, by Mitchell, for writ of mandamus against the Land Commissioner.</p>

Lightfoot and others sued Horst and others for the recovery of land. Defendant had judgment and plaintiffs appealed. The Appellate Court, reversing, rendered judgment for appellants, and appellees obtained writ of error.

<p>1. —Partnership—Access to Books.</p> <p>A partner has the right to have access to and inspection of the books and accounts of the partnership transactions where kept by or under the direction of his co-partner. (P. 652.)</p> <p>2. —Same—Books of Bank.</p> <p>Where the only books and account of the transactions of a partnership between defendant and his co-partner, who was president and nearly sole owner of a national bank, plaintiff in the suit, were kept on the books of the bank under direction of the president, the defendant was entitled to inspection of so much of the books of the bank as related to the partnership transactions for the purpose of preparing his defense, and their production for use as evidence in the case; and this right the trial court could be compelled by mandamus to award him; .if refused. (Pp. 651-653.)</p> <p>3. —Same—Discretion of Court.—</p> <p>In asking, for the protection of defendant, such orders for the production and examination of the books of a bank and their use in evidence in an action arising out of partnership transactions between defendant and the president of the bank, shown only by the books of the latter, the trial judge should exercise such discretion as to the form of orders made as to protect the bank against improper disclosure of its business not relating to matters in issue in such suit. (P. 653.)</p> <p>4. —Same—Mandamus.</p> <p>The Supreme Court will not, by writ of mandamus, require a district judge to issue an order compelling the production of the books of a bank on the taking of depositions of its president by a notary public, where his conduct shows no disposition to deny relator his rights in the matter, but only a proper exercise of his judicial discretion in guarding the rights of others while securing those of relator. (Pp. 653, 654.)</p>