Volume 105 — Texas Reports

<p>Error to the Court of Civil Appeals, Sixth District, in an appeal from Tarrant County.</p> <p>The railway company obtained writ of error on the affirmance, on its appeal, of a judgment by default obtained against it in the trial court at suit of Anderson & Co.</p>

Original application by Roth and others for writ of mandamus against Murray as clerk of the Court of Civil Appeals for the First District. The application for writ of error in Roth et al. v. Schroeter et al. was refused by the Supreme Court on March 20, 1912.

Smythe Co. sued the Ft. Worth Glass & Sand Co. Plaintiff had judgment, which was reversed and rendered for defendant on its appeal. Ft. Worth G. & S. Co. v. S. R. Smythe Co., 61 Texas Civ. App., 338. Appellee, plaintiff, then obtained writ of error.

The railroad company obtained writ of error on a judgment of the Court of Civil Appeals reversing that of the trial court and rendering judgment against it as garnishee in favor of McFaddin and others.

Mrs. Cooper and others sued the Lumber Company and had judgment, which was affirmed on defendant’s appeal (59 Texas Civ. App., 536). Appellant obtained writ of error.

The Sabine Tram Company sued the railway company for overcharges and penalties and recovered judgment. On appeal by defendant the judgment was reversed and rendered' in its favor. Appellee, plaintiff, then obtained writ of error.

<p>1. —Occupation Tax—Wholesale Liquor Dealer.</p> <p>The' tax required to be paid quarterly by a wholesale liquor dealer, under section 11 of the Act of May 16, 1907, Laws, 30th Leg., p. 485, 1st Called Session, is one-half of one per cent of the amount of his gross sales during the quarter as shown by the report required by such law, whether the same are collected or uncollected. (Pp. 37-40.)</p> <p>2. —Same—Statutory Construction—Receipts.</p> <p>The quarterly report of sales required to be made by a wholesale liquor dealer by section 11 of the Act of May 16, 1907, must include the entire amount of his sales whether collected or uncollected, but is not required to show the amounts of each respectively. The "gross receipts” on which the tax of one-fourth of one per cent is based include sales on promises or obligation to pay, as well as those for cash collected during the quarter. (P. 39.)</p> <p>3.—Same.</p> <p>Whore an Act is fairly susceptible of two constructions, one of which would render it inoperative, and the other give it force and effect, the latter should be adopted. Limiting the words "Gross receipts” in section 11 of the Act of May 16, 1907, to sales on which the price has been collected would render the Act ineffectual, since the dealer is. not required to report these separately from those uncollected; and, further, by making all sales payable after the quarter in which they were sold, he could, under that construction, avoid all taxation. (P. 39.)</p>

The railway company appealed from a judgment obtained against it in the District Court by Cox. The Court of Civil Appeals struck out the statement of facts, and affirmed without passing on errors assigned, which could not be considered in its absence. Appellant obtained a writ of error.

<p>Motion for rehearing of an application for writ of error by the Railroad Co. on affirmance on its appeal of a judgment for $30,000 recovered against it in the District Court of Robertson County by Gray.</p>

<p>Error to the Court of Civil Appeals, Second District, in an appeal from Taylor County.</p> <p>The Bank sued the Compress Co. and had judgment. Defendant appealed and obtained writ of error on affirmance.</p>

Halys Wininger, by next friend, sued the railway company and had judgment. On defendant’s appeal this was reversed and rendered for defendant. Appellee then obtained writ of error.

The City of Ennis sued the Ennis Water Works, a corporation, and had judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>1. —Appeal—Jurisdiction—Transcript—Justice Court Judgment.</p> <p>On appeal from the County Court of a case, commenced in Justice Court, the transcript of proceedings in the latter court should show the final judgment rendered there in order that the jurisdiction of the County Court on appeal may appear. (P. 78.)</p> <p>2. —Same—Cases Discussed.</p> <p>Patty v. Miller, 5 Texas Civ. App., 308; Shiner v. Shiner, 15 Texas Civ. App., 667;. and Heath v. Garrett, 50 Texas, 264, distinguished as not in conflict with the rulings herein. (Pp. 79, 80.)</p> <p>3. —Same—Practice on Appeal.</p> <p>Where the transcript of proceedings in Justice Court does not contain a final judgment there rendered, showing, on appeal from the County Court, that the latter had jurisdiction of such appeal, the proper practice in the Court of Civil Appeals, is not to dismiss the appeal for want of jurisdiction shown_ until the appellant has been notified and given opportunity to supply the omission (Pule No. 1 for Courts of Civil Appeals). The method of supplying such omission should be by certiorari. (Pp. 81, 82.)</p>

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

<p>Questions certified from the Court of Civil Appeals, Sixth District, in an appeal from Parker County.</p>

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

Action by the Galveston Chamber of Commerce against the Railroad Commission of Texas. Defendants had judgment in the trial court. On appeal this was reversed and judgment rendered for plaintiff, whereupon appellees obtained writ of error.

Atteberry sued Mrs. Burnett, Newton, and Jones, for recovery and foreclosure on a vendor’s lien note given by the first and indorsed by the second, the land being claimed by the last mentioned. He sought, in the alternative, to recover the land if denied a foreclosure. The ease on a former appeal is reported in Atteberry, Admr., v. Burnett, 52 Texas Civ. App., '617; same case on certified questions, 102 Texas, 118.

Mrs. Camp sued the Cotton Oil Company and had judgment, which was affirmed on appeal by defendant, who then obtained a writ of error. A former appeal in this case is reported in 117 S. W., 451.

<p>1. —Assignment of Error—Sufficiency of Evidence.</p> <p>An assignment of error "in that the great preponderance of evidence shows that plaintiff was not really injured in the alleged accident,” does not raise the question of the sufficiency of the evidence to show negligence on the part of the defendant, causing such accident. (P. 136.)</p> <p>2. —Evidence—Medical Expert.</p> <p>A medical witness who had examined plaintiff a month after the injury was properly permitted to testify that certain conditions then observed by him were results of the injury—the bruise inflicted by it still existing at the time of such examination and furnishing a basis for such opinion. The sufficiency of such testimony to prove the fact was for the jury. (P. 137.)</p> <p>3.—Same.</p> <p>That the examination given an injured plaintiff by a physician was only for the purpose of qualifying him to testify on her behalf, affected only the weight to bo given his testimony, not its admissibility. (P. 137.)</p> <p>i.—Charge—Conjectural Damages.</p> <p>Where the charge confined plaintiff’s recovery to damages caused by defendant’s negligence and forbade consideration of any impairment of health not so caused, it was not necessary to give a requested charge excluding from consideration speculative or conjectural damages. (Pp. 137, 138.)</p> <p>5. —Same.</p> <p>A requested charge intended to exclude merely speculative or conjectural results of plaintiff’s injury from consideration is criticised as so drawn as to be possibly a direction to include them. (P. 138.)</p> <p>6. —Bequested Charge—Damages—Causal Connection.</p> <p>It is proper to refuse a correct requested charge where it has been substantially covered by the instructions given. See instruction excluding damages for impairment of health not due to the injury held proper and sufficient. (Pp. 138, 139.)</p>

<p>1. —Negligence—Electric Company—Wires in Street.</p> <p>An electric lighting company is not to be held negligent nor liable for injury in ease of one using the street of a city by the mere fact that a wire erected by others for the purpose of obtaining the temporary use of its current, though attached for that purpose to one of its poles and supplied with a switch for connection with its electric wires at that point, was so stretched by the parties erecting it as to sag down and, though uncharged at the time, cause the death of one lawfully using the street by coming in contact with his vehicle and throwing him therefrom. (P. 142.)</p> <p>2. —Same.</p> <p>Liability of an electric company for negligence in the construction and maintaining of wires connecting with its own, but not erected or controlled by it, can only rest on its duty to use care against injury by the dangerous current, which did not arise where the injury was from an uncharged wire, or from its duty to maintain its wires so as not to interfere with the proper use of the streets, which did not apply where it had no notice that the wires of others, connected with its structures, were so maintained as to be a dangerous obstruction. (Pp. 142, 143.)</p> <p>3. —Same—Cases Distinguished.</p> <p>San Antonio Edison Co. v. Dixon, 17 Texas Civ. App., 320, followed. Wehner v. Lagerfelt, 27 Texas Civ. App., 520; Washington Gas Light Co. v. District of Columbia, 161 U. S., 316, and other eases, discussed and distinguished. (Pp. 144, 145.)</p> <p>4. —Same—Case Stated.</p> <p>An electric light company undertook to furnish gratuitously the current for lighting a public park of the city at a popular celebration. The committee in charge thereof were to erect the wires and make the necessary connection therefor, and employed a contractor to do so. The latter erected a wire across a public street, attached to a pole carrying the wires of the company, and connected with them, at that point, by a switch for receiving the current. This wire, erected originally at a proper height over the street, became sagged down so as to catch an umbrella fastened to the seat of the vehicle of one driving in the street, and he was thereby thrown out and killed. The wire was uncharged at the time; the company had no notice that it was out of place or interfering with the use of the street; and it had exercised no control over the erecting or maintaining of these wires. Held that no negligence on the part of the electric light company was shown and it was not liable for the injury. (Pp. 141-146.)</p>

Barnes obtained writ of error on a judgment of the Court of Civil Appeals affirming a recovery against him by Patrick and others in the trial court. For previous appeals in this case, see: Williams v. Barnes, 44 Texas Civ. App., 298; Williams v. Barnes, 111 S. W., 432; Barnes v. Williams, 102 Texas, 444.

<p>Error to the Court of Civil Appeals, Third District, in an appeal from Milam County.</p> <p>For the previous history of this case see: Nabours v. McCord, 36 Texas Civ. App., 504, 75 S. W., 827, 82 S. W., 153, 193, 661; McCord v. Nabours, 97 Texas, 271; Nabours v. McCord, 97 Texas, 527; Nabours v. McCord, 100 Texas, 456; Nabours v. McCord, 103 S. W., 469; McCord v. Nabours, 101 Texas, 494; Sprinkel v. McCord, 129 S. W., 379.</p>

Mrs. Gathright sued the express company and had judgment. On defendart’s appeal the judgment was reversed and cause remanded (61 Texas Civ. App., 587). Appellee, plaintiff, obtained writ of error on the ground that the rulings on appeal settled the case.

Action by John Mitchell against the J. Rosenbaum Grain Company. Judgment for plaintiff was affirmed in the Court of Civil Appeals (142 S. W. 121), and defendant applies for a writ of error.

Erp and Wright sued the Raywood Rice, Canal & Milling Company, and appealed from a judgment for defendant. It being ordered re^ versed and remanded, the company obtained writ of error on the ground of a dissenting opinion by Mr. Justice Reese.

Ericson sued Supreme Ruling F. M. C. and had judgment. Defendants appealed and judgment was reversed and rendered in their favor. Appellee then obtained writ of error.

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from El Paso County.</p> <p>Wood-Hagenbarth Cattle Co. sued the Railway Co. On plaintiff’s appeal from a judgment for deféndant, it was reversed and rendered in favor of appellant, and appellee obtained a writ of error.</p>

Robinson & Martin sued the railway company and had judgment which, on defendant’s appeal, was reversed and rendered, appellees obtaining writ of error.

Mrs. Boone and others sued the Railway Co. and had judgment, which was affirmed on defendant’s appeal. Appellant then obtained writ of error.

Crabb and others sued the Celeste Independent School District. Defendant had judgment. Plaintiff appealed, and on affirmance obtained writ of error.

Seiter obtained writ of error on a judgment of the Appellate Court dismissing the appeal of Marsehall from an adverse decision in his cross action in the trial court against Smith and others.

<p>Original application to the Supreme Court by Simmons and others for writ of mandamus against Lightfoot as Attorney-General.</p>

Questions certified from the Court of Civil Appeals, Second District, in an appeal from Tarrant County. In case No. 2384, a previous certificate of ’this cause was returned to the Court of Civil Appeals with the following suggestion from the Supreme Court by the Chief Justice: “Respectfully returned to the Honorable Court of Civil Appeals of the Second District with the suggestion that it make a statement and propound questions upon facts to be determined from the record.

The bank sued Mrs. Wandelohr and another, and obtained writ of error on the affirmance, upon its appeal, of a judgment for the defendants in the trial court. For previous history of this litigation, see: Wandelohr v. Grayson County Bank, 102 Texas, 20; Wandelohr v. Rainey, 100 Texas, 471; Wandelohr v. Grayson County Bank, 90 S. W., 180; Wandelohr v. Grayson County Bank, 102 S. W., 746.

Hahn Bros. & Co. sued the Kincheloe Irr. Co. and had judgment, which was affirmed on appeal by defendant. The latter then obtained writ of error. The contract of defendants in error in this case was made with one Bullock, who was general manager of the irrigation company, incorporated to control an irrigation plant and furnish water for irrigation. Bullock was also manager for Templeton & Bullock, engaged in leasing to tenants irrigated land belonging to Templeton.

<p>Original application by Hovey and others to the Supreme Court for writ of prohibition against Shepherd as district judge. The writ was sought to prevent interference by injunction with the judgment rendered in City of Sweetwater, v. Kansas City M. & O. Ry. Co. of Tex., 104 Texas, 329. S. A. Cole and others, the persons seeking such injunction, intervened to resist the granting of the writ sought by relators.</p>

Vinyard sued Wadsworth .and others for the recovery of land and had judgment. Defendants appealed and on affirmance obtained writ of error.

Mrs. Paschall and others obtained writ of error on a judgment affirming, on their appeal, a recovery against them by Brown in a suit for land.

<p>Questions certified from the Court of Civil Appeals, Seventh District, in an appeal from Crosby County.</p>

Wiener and others sued Zwieb for recovery of land. Defendant had judgment which was affirmed on plaintiffs’ appeal, whereupon they obtained writ of error.

Cockrell and others sued the Houston Packing Co. and others, and appealed from a judgment sustaining a demurrer to the petition. On affirmance, plaintiff obtained writ of error.

Mrs. Blalack and others sued the railway company and had judgment. Defendants appealed and on affirmance applied for a writ of error, which was at first refused, afterwards granted on motion for rehearing.

. Error to the Court of Civil Appeals for the Sixth District, in an appeal from Lamar County. Fenet and others sued McCuiston and others, and obtained a writ of error on a judgment of the Appellate Court reversing a recovery by plaintiffs in the trial court and rendering it for defendants.

Beck sued the Texas Company and had judgment. On defendant’s appeal this was reversed and rendered in its favor. Appellee, plaintiff, then obtained writ of error.

Mrs. Bray, joined by her husband, sued the bank to enjoin sale of her separate real estate under a trust deed. They prevailed in the trial court and defendant appealed. On affirmance appellant obtained writ of error.

Powell sued Freeman, Receiver, and had judgment. On defendant’s appeal it was reversed and rendered in his favor. Plaintiff, appellee, then applied' for writ of error.

Action by J. R. Powell against Thomas J. Freeman, receiver. From a judgment of the Court of Civil Appeals (144 S. W. 1033) reversing judgment for plaintiff, he brings error. Plaintiff sues defendant, as receiver of a railroad, for injury to plaintiff caused by his slipping and a block of ice falling upon him while he was attempting to lift a block weighing about 100 pounds from an ice box, using his hands in the absence of hooks or other appliance.

<p>Error to the Court of Civil Appeals, Second District, in an appeal from Ector County.</p> <p>Mrs. Johnson sued Fitzhugh for land and recovered. Defendant appealed, and on affirmance obtained writ of error.</p>

Harris brought suit and recovered against the telegraph company. The latter obtained writ of error on the affirmance, upon its appeal, of the judgment of the trial court.

Mrs. Cates sued the Telegraph Company and recovered, the defendant obtaining writ of error on the affirmance of the judgment upon its appeal.

<p>Questions certified from the Court of Civil Appeals, Seventh District, in an appeal from Crosby County.</p>

<p>Corporation—Franchise Tax.</p> <p>The franchise tax of fifty cents for each one thousand dollars up to and including one million dollars and twenty-five cents upon each one thousand dollars in excess of one million dollars, imposed upon private corporations whose authorized stock exceeds one million dollars, by the Act of May 16, 1907 (Laws, 30th Leg., p. 502, section 1, proviso), is computed, not on the authorized capital stock alone, but on the sum of such stock issued and outstanding, plus its surplus and undivided profits, where such sum exceeds the amount of its authorized stock.</p>

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

True and others sued the telegraph company and-had judgment. Defendant appealed and on affirmance obtained writ of error.

<p>1.—Sheriff—Allowance of Account—Comptroller.</p> <p>The account of a sheriff for costs in felony cases, presented in accordance with law and duly allowed by the district judge, is not subject to revision and rejection in whole or in part by the Comptroller. (P. 354.)</p> <p>2. —Same.</p> <p>Where the sheriff’s bill for costs is made out in accordance with law (Eev. Stats., art. 1132) its approval and entry on the minutes of the court by the district judge (Eev. Stats., art 1113) constitutes .a judicial act. The Comptroller, when presented with a certified copy of such record, is not given authority by Eev. Stats., art. 1134, directing him to carefully examine same and if correct to draw his warrant for its payment, to determine upon the justice of the different items and reject or approve them, his means of examination and consequent duty being confined to the copy of the record. Nor, it seems, could such judicial power be conferred on an administrative officer, under the division of the powers of government by our Constitution (Art. 2, see. 1). (Pp. 351-356.)</p> <p>3. —Same—Executive C onstruction—Attorney-General.</p> <p>Long disregard by executive officers of the constitutional limit of their powers does not sanction its continuance; and the opinions of the Attorney-General sanctioning it are not precedents for the government of the courts. (P. 355.)</p>

<p>1.—Mandamus—Primary Election—Jurisdiction.</p> <p>At a primary election for nominating candidates for the Democratic party, the name of a Republican and federal office-holder who did not participate in the primary was placed on the ticket by the executive committee in ignorance of his political affiliations, and he received a majority over his Democratic opponent. The executive committee, in a certificate showing these facts, designated the Democrat as party nominee, The District Court, in an action for mandamus, ordered the committee to certify the name of the Republican as the nominee. Held that such action was the determination of a legal question, involving judicial discretion, and the Supreme Court had no jurisdiction, in an original action for mandamus therein, to review such decision and require the trial court to make a different order. (Pp. 357-360.)</p> <p>2.—Same.</p> <p>It seems that the proper remedy of a candidate who by primary election has acquired a right to be certified as the party nominee, against a judgment of the District Court compelling the executive committee to certify his opponent as nominee, would be by contest of the election under the provisions of the primary election law. (P. 360.)</p>

Applications for writs of error to the Court of Civil Appeals for the Fifth District, in an appeal from Johnson County. McCoy- -and others sued- the Cleburne Electric & Gas Co. for damages for injuries resulting from death. Defendants impleaded the Southwestern Telegraph & Telephone Co., seeking indemnity for such judgment as plaintiff might recover. Defendant appealed from a judgment in favor of plaintiffs against it and also in favor of the company impleaded by it.

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

The State sued Adams and another for penalties and had judgment. Defendants obtained writ of error on the affirmance of the judgment on their, appeal.

Patterson sued Ramsey for injunction and the recovery of land and had judgment. Defendant appealed and on affirmance obtained writ of error.

<p>Non-suit—Announcing Decision of Court.</p> <p>The right given a plaintiff to take voluntary non-suit in trial before the court without a jury may be exercised “at any time before the decision is announced,” although the court, in discussing the law and evidence, has already expressed opinions which would lead naturally to the conclusion that he intended to decide the ease adversely to plaintiff. Eev. Stats., 1911, art. 1955 (Eev. Stats., 1895, art. 1301).</p>

Writ of error was obtained by the Texas & Pac. Ry. Co. and numerous other railroads, plaintiffs below, on a judgment of the Court of Civil Appeals reversing and rendering in favor of appellant Commission a judgment of the trial court granting an injunction against the enforcement of one of its orders.

<p>1. —Statute—Caption as Fart of Law.</p> <p>The caption of an Act of the Legislature is a part of the law and must be considered in construing it. The language of an Act should be construed in view of its title and its lawful purposes; broad language should be confined to lawful objects. (Pp. 397, 398.)</p> <p>2. —Same—Constitutional Law—Recovery of Attorney’s Fees.</p> <p>By the Act of March 13, 1909, Laws, 31st Leg., p. 170, providing for recovery by plaintiffs of attorney’s fees not exceeding $20 as part of the damages in certain cases, the caption of the Act restricts its application to claims not exceeding $200.00, while the body of the Act does not contain such limitation. Held:</p> <p>(1) This portion of the Act cannot be harmonized with the limitation to claims not exceeding $200.00 in the caption, except by applying the same limitation to the body of the law.</p> <p>(2) The fact that a claimant of a sum exceeding $200 could receive no benefit under the Act (it being unconstitutional in such application because not expressed in the title; Const, art. 3, see. 35) justifies the conclusion that the limitation in the caption determines the class of claims which were intended to be provided for. It would be unreasonable to include in the provisions of the law claims which could not be affected thereby.</p> <p>(3) The Act applies only to claims not exceeding $200. It contains but one subject and is not in conflict with art. 3, sec. 35, of the Constitution." (Pp. 397-399.)</p> <p>3.—Cases Disapproved.</p> <p>The rulings that the Act in question was unconstitutional: Ft. Worth & D. C. Ry. Co. v. Lloyd, 132 S. W., 899, and Gulf, T. & W. Ry. Co. v. Lunn, 141 S. W., 538, disapproved. (P. 396.)</p>

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from El Paso County.</p> <p>Cobb sued Rees and others for the recovery of land. Plaintiff had judgment which was affirmed on appeal by defendants. Appellants then obtained writ of error.</p>

<p>Error to the Court of Civil Appeals, Fifth District, in an appeal from Hunt County.</p> <p>Edwards sued the Railway Company and had judgment. Plaintiff obtained writ of error on the reversal and remand of the case on his appeal, on the ground that the rulings practically settled the case against it.</p>

McCracken sued the Contracting Co. and had judgment. Defendant appealed and obtained writ of error on affirmance. Por previous appeals in this case see 45 Texas Civ. App., 485; 53 Texas Civ. App., 627.

Sandifer sued Foard County and appealed from a judgment for defendant. This being reversed and the cause remanded, the county-obtained writ of error on the ground that the rulings on appeal settled the case.

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

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

<p>Land Agent—Sale.</p> <p>A contract in writing by which the owners of lands gave to another the exclusive right of selling them for ninety days, undertaking to convey to purchasers he might obtain in that time, and allowing him any excess over a price named, he agreeing to purchase at such price, at the end of that time, any of the lands remaining unsold, was a contract, not of agency, but of sale, upon which either party could enforce specific performance. One who, having been authorized by the owners to sell such lands for a commission at the price named, procured for them the purchaser with whom they concluded such a contract, was entitled to the commission promised by the owners for making sale of the land.</p>

<p>Error to the Court of Civil Appeals, Fourth District, in' an appeal from El Paso County.</p> <p>Mrs. Davis sued Yidal, and appealed from a judgment for defendant, on affirmance of which she obtained writ of errbr.</p>

<p>Error to the Court of Civil Appeals, Third District, in an appeal from Waller County.</p> <p>J. T. Rankin, as executor, sued L. A. Rankin and others and had judgment. It was affirmed on appeal by defendants, who then obtained writ of error.</p>

<p>Deed—Delivery in Escrow.</p> <p>The owner executed and acknowledged a deed conveying certain land to his two step-daughters, which he enclosed in a sealed envelope and delivered to the cashier of a bank for safe keeping, saying that it was a deed of some land to them, to be delivered to them after his death. Held:</p> <p>(1) That these facts showed a delivery of the deed which, whether the grantor retained any control over the instrument or right to countermand it or not, had the same effect on his death as though it had then been delivered to the grantees with a reservation to the grantor of the use of the property during his life. (Pp. 460-463.)</p> <p>(2) That delivery in person to the grantees was not essential to pass the title. (Pp. 463, 464.)</p> <p>(3) That the proof, here considered, showed nothing evidencing a different intent by the grantor. (Pp. 464-466.)</p> <p>(4) That on his death the title became consummate in the grantees, taking effect as of the instrument. (P. 467.)</p> <p>(5) That evidence that the grantor offered ‘the property for sale after making the deed was immaterial. (P. 466.)</p> <p>(6) That an indorsement on the envelope of the names of the grantor and grantees was also .immaterial. (Pp. 466, 467.)</p> <p>(7) That the evidence, being without conflict, showed delivery of the deed as matter of law, and required judgment in favor of the grantees in an action against them by the administrator to cancel the deed. (P. 467.)</p>

Action by the State against Savage, who appealed from a judgment for plaintiff. This was reversed and the case remanded, the State obtaining writ of error.

Spivy sued March and others for the recovery of land and had judgment, which was reversed and rendered in favor of defendants on their appeal. Spivy then obtained writ of error.

Myrtie Davis and others sued Oar and wife and recovered judgment. Defendants appealed and on affirmance obtained writ of error.

<p>1.—Garnishment—Custodia Legis.</p> <p>The surplus of proceeds of an execution sale remaining in the sheriff’s hands after satisfying the execution, is subject to garnishment at - suit of a creditor of the defendant in execution for whom the sheriff holds it. (P. 489.)</p> <p>2.—Same.</p> <p>The sheriff is required to appropriate the surplus of proceeds of execution sale upon any other execution against the same debtor coming to his hands (Bev. Stats., 1911, art. 3778) and the courts have a like power to reach such surplus in his hands through garnishment at suit of another creditor of the execution debtor entitled to such surplus. (P. 490.)</p>

Kate Coleman obtained writ of error on the affirmance on her appeal of a recovery against her in the District Court by Helen Zapp and her husband.

Pietrina Guisti sued the Galveston Tribune for libel and recovered judgment. On defendant’s appeal, this was reversed and judgment rendered in its favor. Appellee, plaintiff, then obtained writ of error.

Salgado sued Baldwin for land and recovered. On defendant’s appeal the judgment was reversed and cause remanded, whereupon Salgado obtained writ of error on the ground of conflict of decisions.

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

Action by the Port Arthur Rice Milling Company against the Beaumont Rice Mills and others. There was a judgment of the Court of Civil Appeals (141 S. W. 349) reversing a judgment for plaintiff and rendering a judgment for defendants, and plaintiff brings error.

<p>Appeal and Eerob (§ 820*) — Hearing — Obal Argument — Discretion op Court.</p> <p>Under the statute requiring notice of the filing of applications for writs of error, and providing that where an answer is filed the Supreme Court may in its discretion, when the writ is granted, decide the case without a formal submission, the Supreme Court may grant an application for a writ of error and determine the questions without oral argument; but, where the ends of justice may be best sub-served by oral argument, it will permit one.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3201, 3203; Dec. Dig. § 820. *]</p>

Mrs. Ellis sued the insurance company and had judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

The hank sued Elliott and Kilpatrick and obtained judgment. Defendant Elliott appealed, and obtained a writ of error on judgment reformed and rendered by the appellate court.

The action was brought by Journeay in the District Court to obtain writ of mandamus against the County Judge, whose order, after admitting the will to probate, had, on issues presented by creditors of the estate, suspended the grant of letters testamentary in order to determine whether she was a proper person to receive them. The court granted the writ ordering that plaintiff be permitted to qualify at once.

<p>Error to the Court of Civil Appeals, Third District, in an appeal from Bell County.</p> <p>Hall sued Bell County and appealed from a judgment for defendant. This being reversed and remanded, the county obtained writ of error.</p>

<p>1.—Partnership—New Partner—Antecedent Debts.</p> <p>One who becomes a member of an existing partnership does not thereby become liable for debts already incurred by it, in the absence of an agreement to that effect express or implied. The presumption is against the assumption of such liability. (P. 569.)</p> <p>2. —Same.</p> <p>No inference of personal assumption of previous debts of the partnership can be drawn from the fact that the new partner recognized the liability of the firm property for them; nor from his buying the interest of the retiring partner at merely its net value after such debts should be paid; nor from the fact that the new business received the benefit of goods for the purchase of which such debts were incurred by the old firm. (Pp. 56'9, 570.)</p> <p>3. —Partnership—Purchase of Partner’s Interest.</p> <p>Though parties may intend no partnership, yet form one, the mere purchase by another of the interest of a partner in the firm with the intention of forming a corporation to carry on the business, not of continuing it as a partnership, would constitute the purchaser a co-owner, not a partner. But where the intention of incorporating was not carried out, the business being conducted about two months under the old firm name, managed by one of the former partners, purchasing goods and contracting debts therefor, the purchaser of such interest, though taking no part in the management, since the business was conducted for his benefit, though no profits were made, became a partner and liable for firm debts contracted while it was so conducted. (Pp. 570-572.)</p> <p>4.—Same—Case Stated.</p> <p>On July 29th F. purchased the interest of one of three partners in a mercantile business, with the intention, jointly with the remaining partners, of forming a corporation to continue the business. Meantime the business, to keep it a going concern, was conducted under the name of the old firm and the management of one of the former partners until September 14th, when, its condition being unsatisfactory, the intention of incorporating was abandoned, and it was closed up by a receivership. Held that F. became personally liable as a partner for debts contracted in the conduct of the business after his purchase, but not for its previous debts. On debts for goods purchased and received by the firm before he bought an interest he was not so liable, though they were still on hand when he bought; on those purchases after he bought his interest he was liable; he was also liable for the debts for goods ordered before he bought but received afterwards, this being equivalent to a purchase by the new firm. (Pp. 567-572.)</p>

John P. Daggett and others sued Josephine Barre. Defendant had judgment on demurrer sustained to plaintiffs’ petition. They appealed, and on reversal and remand appellee, defendant below, obtained writ of error on the ground that the ruling settled the case.

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

<p>1, —Constitutional Amendment—Election—Date of Submission.</p> <p>The constitutional amendment permitting cities of more than 5000 inhabitants to adopt or amend their charters by a majority vote of the electors was legally submitted for adoption at the general election held on November 5, 1912. The Constitution (art. 8, sec. 1) required the time for its submission to be specified by the Legislature. The joint resolution provided for its submission at the next general election held in the State, ‘‘ or in case any previous election shall be held in this State for other purposes, then this proposed amendment shall be submitted to the qualified voters of the State at such election.'’ (General Laws, 32d Leg., p. 284.)' A special election was held on July 22, 1911, upon another amendment to the Constitution, at which the amendment in question was not submitted. This was proper. The general, and not the special election, was the only time designated for its submission in conformity with the constitutional requirement. (Pp. 587-591.) 2. —Same.</p> <p>The Constitution required the designation of a time certain for the election, and it could not be held at a time not so designated. The direction for its submission contingently, in case of a previous election for other purposes, was not a compliance with this requirement, and did not invalidate the clause fixing the date of the next general election for its submission. (Pp. 589, 590.)</p>

1. —Practice in Supreme Court—Attacking Findings of Fact. The findings of fact in the court below will be accepted by the Supreme Court where parties questioning the sufficiency of the evidence in law fail to point out the defect. The court is not required to hunt through the record for evidence to sustain the finding. (P. 596.) 2. —Judgment—Service by Publication—Collateral Attack—Record.

Jessie Stallcup, taking the name and claiming to be the surviving wife of G. M. D. Grigsby, deceased, sued Mrs. Reib and others to establish her rights in alleged community property of deceased and herself. Defendants had judgment which was affirmed on plaintiff's appeal, and thereupon she obtained writ of error.

Veneranda Schwingle sued Keifer, as executor of Jacob Schwingle, deceased, and others, to establish her rights as widow of deceased and owner of half of property alleged to belong to their community estate. Defendants had judgment which was affirmed on appeal by plaintiff and thereon she obtained writ of error.

Mary Berger sued Kirby, administrator, and others, and obtained writ of error on the affirmance, on her appeal, of a judgment for defendants.

Teagarden had judgment in the trial court against the R. B. Godley Lumber Co. in a suit brought against that defendant and others. The company prosecuted error, and on reversal with judgment rendered by the Appellate Court (135 S. W., 1109) Teagarden obtained writ of error from the Supreme Court.

Judgment recovered by Patton against the Denison Light & Power Co. was affirmed on appeal by that defendant (135 S. W., 1040) and it thereupon obtained writ of error.

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