Volume 106 — Texas Reports

Freeman, Receiver, appealed from a judgment recovered against him at suit of Ortiz, and obtained writ of error on its affirmance.

<p>1. —Death—Railroad—Lumber Company.</p> <p>A “logging road” owned and operated by a lumber company is a railroad within the terms of article 4694, Revised Statutes, 1911, and the company is liable as its owner under the statute for the death of one riding on its train caused by the negligence of its servants. Cunningham v. Neal, 101 Texas, 338, followed. (P. 9.)</p> <p>2. —Same—Contract—Assuming Risk.</p> <p>The contract between a lumber company, a private corporation operating a lumber road in connection with its business, and one permitted to ride upon its train upon a written pass, which stipulated that he assumed all risk of injury while so doing, was valid as against a claim for injury to such person m a collision of trains caused by negligence of the company’s servants. The company not being a common carrier, the terms on which he was permitted to ride were matters in which the public had no interest, and could be fixed by private contract. Gulf, C. &. S. F. Ry. Co. v. McGown, 65 Texas, 640, distinguished. (Pp. 8-11.)</p> <p>3. —Same.</p> <p>No action for injuries resulting in death can be maintained where the injured person was precluded by a valid contract from recovering for his injuries if death had not resulted from them. Rev. Stats., 1911, art. 4695. (P. 10.)</p> <p>4. —Same—Contract—Consideration.</p> <p>The fact that a lumber company receiving upon its logging train for carriage upon a free pass one seeking employment from a contractor engaged in cutting logs for its mill, was incidentally interested in the purpose of his trip, did not deprive it of the right to contract with him that he assume the risk. (P. 11.)</p>

, Error to the Court of Civil Appeals, Sixth District, in an appeal from Upshur County. The Progressive Lumber Company sued the Marshall & East Texas Railway Company. Defendant had judgment. Plaintiff appealed, and on affirmance obtained writ of error.

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

<p>Questions certified from the Court of Civil Appeals, Seventh District, on writ of error from Parmer .County.</p>

<p>Error to the Court of Civil Appeals, Fifth District, in an appeal from Dallas County.</p> <p>Kruegel sued Porter and appealed from a judgment for defendant. Porter obtained writ of error on a judgment reversing and remanding (136 S. W., 801) on the ground of dissent by one of the judges of the Court of Civil Appeals.</p>

The Midland Grocery & Dry Goods Company sued McClintic for foreclosure of a judgment lien on land. It had judgment, which was affirmed on appeal by defendant, and he obtained writ of error.

Irving sued Freeman, receiver of the International & G. FT. R. Co., and recovered judgment. Defendant appealed, and, judgment being reversed and rendered in his favor, appellee, plaintiff, obtained writ of error.

<p>1. —Trespass to Try Title—Action—Vendor and Vendee.</p> <p>A vendor of land whose vendee has not made default, not being entitled to possession, can not maintain a suit for it against one claiming adversely to the vendee, though as between himself and the vendee he holds the superior title under a reservation in the deed of the vendor’s lien; and the same rule applies to the State as a vendor where it seeks to maintain the same character of action against one claiming adversely to its vendee. (Pp. 44, 45.)</p> <p>2. —Same—School Land—Conflicting Titles—Venue.</p> <p>In an action for land by those claiming it under executory purchase from the State (as school land occupying a vacancy between older patented surveys) against the holders under the patents (who claimed that there was no vacancy), such school land purchasers not being in default in their payments, the State was improperly joined with them as a plaintiff, and the suit could not be brought in Travis County, as an action by the State, under authority of article 5468, Rev. Stats., 1911 (Act of Feb. 23, 1900, Laws, 26th Leg., 1st Called Session, p. 29), the defendants residing and the land lying in another county. The interest of the State in the deferred payments due from the purchaser to the school fund and its legal title held to secure them did not entitle it to maintain or join in the suit. (Pp. 43-45.)</p> <p>3. —Same—Statute.</p> <p>The Act of February 23, 1900, was not designed to enlarge the rights of the State to bring actions not before authorized. School land which has been sold by the State ceases to be “land belonging to the school fund” within the meaning of the caption to that Act; and the language in section 8 (Rev. Stats., 1911, art. 5468), “lands in which the State or any of such funds have an interest;” clearly refers to an interest in such lands for which the State is entitled to sue. (Pp. 45, 46.)</p> <p>4.—Same—Statutory Construction.</p> <p>The propriety of giving a right of action to the State for the protection of its lien on lands sold addresses itself to the Legislature, and can not enlarge by construction the right granted by it. (P. 46.)</p>

Anderson sued the Southwestern Surety Insurance Company and others and had judgment, which was affirmed on appeal. The company then obtained writ of error.

an appeal from Ward County. Houston sued Koonce and appealed from a judgment for defendant on affirmance of which he obtained writ of error.

Pope sued the railway company, appealed from a judgment for defendant, and obtained writ of error on its affirmance by the Court of Civil Appeals.

Beed sued Bobertson and others for the recovery of land. Bobertson had judgment, and plaintiff appealed and obtained writ of error on affirmance.

The action was by Anderson County and others against the railway company. The defendant appealed from an order granting temporary injunction, and on the injunction being sustained obtained writ of error.

Cox sued the three defendant railway companies and had verdict and judgment for recovery against them jointly. Defendants appealed, and on affirmance obtained writ of error.

Original application by Furnish for writ of mandamus from the Supreme Court against Eobison as Land Commissioner. Eelator based his right upon a judgment recovering the land from an adverse claimant to whom it had been awarded as purchaser after relator’s purchase had been declared forfeited for failure to comply with the law as to residence.. This judgment the answer of respondent alleged to have been obtained by collusion.

The Daughters of the Republic brought suit to obtain an injunction restraining Conley and others acting under his authority from entering upon the .“Alamo” property and making alterations -therein. The injunction was granted and perpetuated, and the judgment was affirmed on appeal. The defendants, appellants, thereupon procured writ of error.

The Glach's City Oil, Gas & Manufacturing Company and another sued the Eight of Way Oil Company and others. They appealed from a judgment for defendants, and the latter obtained writ of error when the judgment was reversed and rendered for appellants.

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

Original application to the Supreme Court for writ of mandamus requiring the Secretary of State to approve a corporate charter rejected by him.

The telephone company sued the city for and obtained an' injunction. The judgment was affirmed on defendant’s appeal, and thereupon it obtained a writ of error.

<p>Questions certified from the Court of Ciyil Appeals, Seóond District, in an appeal from Clay County.</p>

Paschal sued Inman for injunction, and obtained writ of error on the affirmance, on his appeal, of a judgment dissolving it.

Trammell and wife obtained writ of error on a judgment dismissing their appeal from a judgment recovered against them by Rosen in the District Court.

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

<p>1. —School Land—Premature Application to Purchase.</p> <p>Until a previous sale of school land had been officially canceled, a second application to purchase it was unauthorized and conferred no right, though the sale was cancelled after it was filed. (P. 145.)</p> <p>2. —Same—Porfeiture by Abandonment.</p> <p>Under the Act of April 19, 1901, Rev. Stats., 1911, art. 5424, abandonment of school land by the purchaser does not, ipso facto, work a forfeiture, and the land is not subject to resale until such forfeiture has been officially declared. Adams v. Terrell, 101 Texas, 331, approved and followed. (Pp. 145, 146.)</p> <p>3. —School Land—Appraised Value.</p> <p>A sale of school land at less than the value at which it was appraised at the time the rights of the purchaser attached was invalid. (P. 146.)</p> <p>4. —Same—Case Stated.</p> <p>A purchaser having abandoned the school land bought, and another having applied to purchase it at the value as then appraised, it was subsequently appraised at a higher price. Thereafter the first sale was forfeited for abandonment. A subsequent sale to the second applicant at the original appraisement was invalid. His application conferred no right when made, because the original' sale had not been cancelled; nor after the cancellation, because it was then at less than the appraised price. (Pp. 144-147.)</p> <p>5. —School Land—Judgment—Limitation.</p> <p>A judgment in an action between adverse claimants of the right to purchase school land, holding the sale to one valid as against his adversary because the latter had not brought suit for the land within one year from the date of its award to the other, as required by the Act of March 16, 1905 (Rev. Stats., 1911, arts. 5458, 5459), was not binding on the State. The party prevailing therein, on the sale to him being cancelled by the Land Commissioner as one illegally made, could not maintain action for mandamus to require the Commissioner to reinstate him on the ground that'the validity of his purchase had been determined by his judgment against the adverse claimant. (Pp. 146, 147.)</p> <p>6.—Same.</p> <p>A claimant of school land defeated, the action of an adverse claimant therefor against him on the ground that, though his own purchase was invalid against the State, his adversary was barred of his action by limitation (Rev. Stats., 1911, arts. 5458, 5459). Held that this judgment gave him no right, as against the State’s action in cancelling his own purchase for invalidity, to assert the title of the adverse purchaser as one acquired by him -under his judgment. That judgment determined such title to be invalidated by limitation. (Pp. 146, 147.)</p>

<p>1. —Final Judgment.</p> <p>A judgment is final only when it leaves nothing further to be litigated in the ease. (P. 153.)</p> <p>2. —Same—Injunction—Appeal—Temporary Order.</p> <p>An injunction granted in an action by a city against an improvement district constructing a levee along the bank of a stream for the protection of riparian lands from overflow, and threatening thereby the destruction of the waterworks plant of the city on the opposite bank by flood waters thrown against it, which temporarily restrained the completion of the work by defendant, and commanded the leveling of part of the embankment already constructed, but this only in the event defendant failed within sixty days to protect such property of the city with adequate dikes, was not a final judgment. Appeal from such order was from a temporary injunction within the meaning of articles 4644, 4645, Rev. Stats., 1911, and governed by the rules applicable to such appeals. (Pp. 153, 154.)</p> <p>3. —Same—Briefs—Motion for New Trial.</p> <p>On appeal from an order granting a temporary injunction no motion for new trial is necessary, nor is it required that formal assignments of error or briefs be made by appellant. The-statute (Rev. Stats., 1911, art. 4645) ' contemplates that the same issues shall be submitted to the appellate court as to the trial judge, and in the same way. Merrill v. Savage, 49 Texas Civ. App., 292, approved. Forty-Acre Spring L. S. Co. v. West TexBk. & Tr., Co., 118 S. W., 790, criticised. (Pp. 154, 155.)</p> <p>4. —Supreme Court—Certified Question.</p> <p>On questions certified to the Supreme Court, it has no authority to find the facts in the case. It can not determine whether defendant was, by its conduct, estopped upon the issues involved, in the absence of finding of the facts with reference to such estoppel, shown by the certificate. (P. 155.)</p> <p>5. —Water Course—Riparian Owners—Levees.</p> <p>The owner of one bank of a stream has no right to erect embankments to protect his land from overflow which will change the natural flow of the waters in time of flood and east it upon his neighbor’s land. (Pp. 155, 156.)</p> <p>6. —Same—Legislative Authority—Public Improvement—Constitution.</p> <p>Private property can not be damaged or destroyed for public use without compensation (Const., art. 5, sec. 17). The authority given by statute to an improvement district organized under Chapter 2, Title 83, Rev. Stats., 1911, to erect levees to protect land from overflow must be exercised with due regard to its effect on the lands of others; and the erection of levees by such district may be restrained by injunction where such work threatens destruction to the property of others by throwing against it the flood waters of a stream, since the law makes no'provision for compensating such injured party. (Pp. 156-160.)</p> <p>7. —Same—Property Dedicated to Public Use.</p> <p>Property dedicated to one public use, such as city waterworks, can not be taken under eminent domain, nor, it seems, can it be damaged or destroyed, even with compensation, for the construction or other works of public use, such as levees of an improvement district for preventing overflow, and such destruction may be prevented by injunction. (P. 160.)</p>

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

Cochrane obtained writ of error on the affirmance by the Court of Civil Appeals of a judgment recovered against him in the trial court.

<p>1.—Pleading—Negligence.</p> <p>In a petition seeking recovery for death of defendant’s employee by his coming in contact with a revolving fly wheel near the stationary engine he was engaged in operating, allegations that “his feet slipped under him on the broken, uneven and greasy floor, and he was precipitated into the unprotected pit around such wheel, or he stepped into such pit while at his work, or otherwise came. in contact with said unprotected wheel when said wheel was revolving with great rapidity and force,” were insufficient, as against a general demurrer, to notify the defendant of what was expected to be proved as a ground of plaintiff’s action. (Pp. 183, 184.)</p> <p>2. —Pleading—Assumed Risk.</p> <p>Allegations that deceased,, an experienced engineer, had been in charge of the operation and oiling of a stationary engine for ten days before meeting his death, in connection with the charge that same was caused by his slipping on the rough and greasy floor about it and falling into a revolving, fly wheel, being indefinite as to the cause of the floor becoming greasy, and therefore to be taken most strongly against the pleader, showed no one but himself responsible for such condition. (P. 184.)</p> <p>3. —Same—Obvious Conditions.</p> <p>The conditions alleged to have caused deceased, an engineer operating a stationary engine, to fall into the pit where a fly wheel was revolving, being such as were unquestionably obvious to him while engaged in his work, the risk of injury therefrom was one which he assumed. (Pp. 184, 185.)</p>

<p>1.—Deed—Cancellation—Jurisdiction—Foreign Land.</p> <p>The courts of Texas have no jurisdiction to decree cancellation of a deed to land in Mexico. (Pp. 188, 189.) •</p> <p>8.—Partition—Jurisdiction—Foreign Land.</p> <p>The courts of Texas have no jurisdiction to decree the partition of lands in Mexico. (P. 189.)</p> <p>3. —Fundamental Error.</p> <p>Error in cancelling a conveyance and decreeing partition of land in a foreign country is fundamental, and is ground for reversal though not properly assigned. (P. 189.)</p> <p>4. —Deposition—Presence of Party.</p> <p>The fact that the party at whose instance a deposition was taken was present at the taking and suggested a correction of one answer by the witness was not ground for suppressing it where it did not appear that the answer was affected by such interference. (Pp. 189, 190.)</p> <p>5. —Deposition—Witness Present at Trial.</p> <p>. The refusal of the trial court to compel a witness present at the trial to be placed on the stand for examination, instead of introducing his deposition previously taken, was within his discretion, and not cause for reversal except when abuse of the discretion was shown. (P. 190.)</p> <p>6. —Evidence—Declarations—Another’s Meaning.</p> <p>Declarations of a party as to what was meant by statements made by another person were inadmissible. One’s declarations may be admitted to interpret his own acts, but not those of another. (P. 190.)</p>

Hodnctt sued the Bailway Company and obtained judgment, which was affirmed on appeal by defendant. Appellant then procured writ of error.

<p>Original application to the Supreme Court, through writ of habeascorpus, for the discharge of the relator, Zuccaro, from custody under a commitment for contempt of court in violating an injunction.</p>

<p>Case Followed.</p> <p>The rulings -in Zuccaro, ex parte, ante, p. 197, are followed in this case, which involves the same question.</p>

Dorchester, as receiver, sued the Merchants National Bank of Houston, along with the Texas Lamp & Oil Compan}’, for the amount of a check drawn in his favor against T. W. House, and dishonored by reason of his failure. Plaintiff’s recovery against the defendant bank was reversed on its appeal, and he then obtained writ of error.

Question certified by the Court of Civil Appeals, Second District, in an appeal from Archer County. The appellate court, which had not passed on the case, certified the question of substantive law involved (the construction of a written contract as to the personal liability of appellants thereon) as being one on which the judges of that court were unable to agree.

Parsons and wife sued the electric company and recovered damages. The judgment was reversed and remanded on defendant’s appeal; and appellee (plaintiff) obtained a writ of error on the ground that the ruling practically settled the case.

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

<p>1. —Injunction—Judgment—Jurisdiction of District Court.</p> <p>The District Court was without jurisdiction to enjoin the enforcement of a judgment of the County Court which, if erroneous, was not void. (P. 223.)</p> <p>2. —Same—Usury—Counter-Claim—Verification—Amendment.</p> <p>The verification of a counter-claim based on the collection of usurious interest (Rev. Stats., arts. 4082, 4983) is for the benefit of the adverse party, and may be waived. Though not verified by the proper party, or though unverified, it could be amended; and permitting the amendment, in the County Court on appeal, of the verification of such plea as made in the Justice Court did not introduce a new cause of action, nor render void a judgment there on such counter-claim, nor prevent such counter-claim from being considered in determining the amount in controversy as affecting the jurisdiction of the County Court on appeal. (Pp. 223, 224.)</p> <p>3. -—Injunction—Sale of Exempt Property—Jurisdiction.</p> <p>The District Court has jurisdiction to enjoin the sale of exempt property under execution from another court, and this power is not affected by article 4653, Revised Statutes. Leachman v. Capps & Cantey, 89 Texas, 690. (P. 224.)</p> <p>4. —Same—Amount in Controversy—Pleading.</p> <p>Where the value of property claimed to be exempt, in an action to enjoin its sale, is not stated, the District Court has jurisdiction, on the face of the proceeding, to issue and to subsequently, dissolve the injunction, it • not appearing to be within the original jurisdiction of another court. Whether the jurisdiction would be exclusively in the County Court (Const., art. 5, sec. 16), if the pleadings showed the value to be between $200 and $500, is not determined. (P. 224.)</p>

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

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

Enor to the Court of Civil Appeals, Third District, in an appeal from Travis County. • The State sued the railway company and had judgment awarding a mandatory injunction. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

Original application to the Supreme Court, by the Milam County Oil Mill and others, for writ of prohibition against Anna F. Bass and others forbidding the prosecution'of a suit begun by them in the District Court of Hill County, which action was alleged to interfere with the execution of the former decree of the Supreme Court in McCord v. Sprinkel, 105 Texas, 150.

<p>Questions certified from the Court of Civil Appeals, First District, in an appeal from Polk County.</p> <p>The case was decided by the appellate court without dissent. On motion for rehearing they certified to the Supreme Court the question of substantive law involved (whether the contract on which the rights of the parties depended was one for the sale of land, and therefore void under the Statute of Frauds because not in .writing) on the ground that they were in doubt as to the correctness of their ruling.</p>

<p>1. —Constitutional Law—Statute—Construction.</p> <p>A statute must be sustained when it is not manifestly in conflict with some provision of the Constitution; and in testing this its language must receive such construction as will conform to constitutional requirements, if it is capable of such interpretation. (Pp. 270, 271.)</p> <p>2. -—Same.</p> <p>Statutes can not be declared invalid on the ground that they are unwise, unjust, unreasonable or immoral, nor because opposed to public policy or to the spirit of the Constitution. (P. 271.)</p> <p>3. —School District—Constitution—Special Law—Creating Offices.</p> <p>The Act creating Clifton Independent School District (Local and Special Laws, 33d. Leg., p. 107) was not invalid, in providing for its government by school trustees, by reason of the prohibition against creating offices by local or special law (Const., art. 3, sec. 56). The office of trustee was one already existing under the laws of the State. Neither was the continuing of the old trustees in office by such Act until the new were elected an appointment of officers by such Act. (Pp. 271, 272.)</p> <p>4. —School District—Taxation—Sites for School Buildings.</p> <p>The right of an independent school district to levy taxes, when authoriized by statute, for the erection of school buildings (Const., art. 7, see. 3), implies also the right to do so for the purchase of sites for such buildings. (Pp. 272, 273.)</p>

<p>Supreme Court—Writ of Error—Time—Rehearing.</p> <p>The Supreme Court would not refuse to consider an application for writ of error for want of timely motion for rehearing in the appellate court where due excuse for the delay was shown and that court improperly refused leave to Ale the motion. But in such case the refusal of leave 'to Ale takes the place of a judgment overruling the motion, and writ of error must be applied for within thirty days from such refusal; the time could not be enlarged by Aling later a second motion to permit Aling. (Bp. 273, 274.)</p>

The State sued Gallardo and others in trespass to try title. Judgment for defendants was, on plaintiff’s appeal, affirmed in part, and in part reversed and rendered. Appellant then obtained a writ of error.

Certificate of dissent from the Court of Civil Appeals, Third District, in an appeal from Brown County. Mrs. Elliott and another sued the City of Brownwood for damages from the death of her husband. On demurrer defendant had judgment, which was affirmed on plaintiffs’ appeal. Hon. John M. Furman, sitting as Associate Justice in lieu of Mr. Justice Jenkins, who was disqualified, dissented, and the court certified the point of dissent to the Supreme Court.

Williamson & Co. sued the railway company. Defendant’s plea of limitation was sustained, and the judgment was affirmed on appeal by plaintiffs, who then obtained writ of error.

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

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

- Error to the Court of Civil Appeals, Fifth District, in an appeal from Hunt County. Fox recovered judgment against the Houston & Texas Central Railway Company, which was affirmed on appeal by defendant. The latter then obtained writ of error.

Mrs. Townsend, joined by her husband, sued in the District Court to •set aside the will of Winfield Scott, which the County Court had admitted to probate. Plaintiff had judgment, which was affirmed on appeal, by defendants, who then obtained writ of error.

<p>Evidence—Presumption—Negligence.</p> <p>Where defendant, a railway company sued for injury by negligence in permitting an iron pipe to be upon the track on which its employees were operating cars, impleaded and sought judgment against a packing company doing construction work adjoining such track as being the one whose servants had negligently placed the pipe thereon, the burden was on it to prove that they had done so. It could not he presumed from the fact that servants of the packing company were making excavations there and from its failure to prove by them that no such pipe had been taken by them from the ground. Evidence considered is held to support a peremptory instruction to find for the packing company. (Pp. 349, 350.)</p>

<p>Mandamus—Question of Fact.</p> <p>On the filing by respondent of an answer putting in issue facts relied on by relator for obtaining from the Supreme Court a writ of mandamus against the Comptroller, the application must be dismissed. (P. 350.)</p>

<p>1.—Homestead—Estates of Decedents—Abandonment.</p> <p>The homestead of decedent, whether the estate be solvent or insolvent, is not subject to sale for his debts. Though not set apart to his widow and minor children, or abandoned by them, it descends to his heirs free from claims of creditors. Rev. Stats., 1911, arts. 3235, 3413, 3414, 3421-3428. (Pp. 356-362.)</p> <p>2. —Same—Statutory Construction.</p> <p>The purpose of article 3422 (2055) (2002), Rev. Stats., 1911, was not to declare an exemption of the homestead in case of insolvent estates which did not exist in solvent ones; nor is it to be taken as a denial of such exemption except in case of insolvent estates by application of the maxim inclusio unius ' exclusio alterius. Its object was to prescribe a rule for descent and distribution of the homestead where the estate was insolvent different from that in solvent estates—a rule which has been held unconstitutional. (Const., art. 16, sec. 52; Zwerneman v. Yon Rosenberg, 76 Texas, 522.) (Pp. 362-364.)</p> <p>3. —Cases Discussed.</p> <p>Moore & Son v. Moore, 89 Texas, 29, examined and limited, and numerous Texas cases on homestead descent and distribution distinguished. (Pp. 357-359.)</p> <p>4. —Homestead—Incumbrance—Abandonment.</p> <p>A lien created by decedent upon real property was void against his homestead, which upon his death descended to his heirs free from such incumbrance, though the estate was solvent and the widow abandoned such homestead when it was set aside to her. It then became subject to distribution. (Pp. 353-364.)</p>

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

<p>1.—Supreme Court—Certified Question.</p> <p>Th® Supreme Court will not answer abstract questions of law on certified questions; and it is confined, in its answer, to a consideration of such facts as are shown by the certificate. (P. 388.)</p> <p>2. —Same.</p> <p>The facts shown by the certificate here considered are held insufficient to enable the Supreme Court to answer the questions asked as applied to the issues presented. (P. 388.)</p> <p>3. —Carrier—Delay—General and Special Damages.</p> <p>Where a packing company delivered its own oil tank car to a railway consigned to a cotton seed oil mill and to be returned loaded therefrom, which car was diverted by connecting carriers and used elsewhere, causing delay in its return loaded to the shipper, the measure of damages would be the value of the ordinary and usual use of the car during the period of delay, where the carrier was not informed with what it was to be loaded. But if delayed after the car was loaded and returned to the initial carrier and it notified of a special purpose in the shipment, it would be liable for damages resulting from ■the failure to deliver for such special use. (P. 388.)</p>

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

S. M. and F. A. Combes sued Stringer and others for the recovery of land. Stringer prevailed as to 160 acres thereof claimed by him by limitation. Plaintiffs appealed, and on affirmance obtained writ of error.

<p>1. —Plea of Privilege—Change of Venue—Appeal.</p> <p>Appeal may- be prosecuted from an order sustaining defendants’ plea of privilege to be sued in the county of their residence and transferring the suit to the proper court of that county. The proviso to article 1833, Rev. Stats., 1911 (which introduced such change of venue instead of dismissal,—the former practice), “that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege,” was intended to preserve the right of appeal which a plaintiff formerly had, when the judgment, being for dismissal,-was a final one from which appeal would lie. (Pp. 434, 435.)</p> <p>2. —Plea of Privilege—Waiver—Cross-Action.</p> <p>Defendants who had filed in due order their plea of privilege to be sued only in the county of their residence, did not waive same by afterwards filing an answer, with permission of the court that this be done subject to action to be had on their former plea, though such answer was in the nature of a cross-action seeking affirmative relief against plaintiff, against a co-defendant not served nor appearing or joining in such plea of privilege, and against others not before made parties. (P. 435.)</p> <p>3. —Plea of Privilege—Change of Venue—Judgment.</p> <p>On sustaining defendants’ plea of privilege, the judgment changing the venue should transfer to the proper county the entire case and all parties, including a cross-action filed therein by defendants. (P. 435.)</p>

Motion in the Supreme Court, by the Pierce Oil Corporation, for leave to file a petition for mandamus against Weinert, Secretary of State, requiring the issuance by him to relator of a permit to do business in Texas.

Ward sued Walker and others for specific performance of a contract, and appealed from a judgment in favor of all the defendants. The judgment was affirmed as to part of the defendants, but reversed as to three of them and remanded with instructions to enter judgment for plaintiff. These appellants then sought writ of error on the ground that the judgment settled the case.

Kuehn sued Lane and wife to foreclose a judgment lien on land and recovered. Defendants appealed, and on affirmance obtained writ of error.

Cearley and others sued May, who appealed from a judgment in favor of plaintiffs. The judgment was reversed and remanded, and appellees obtained writ of error on the ground that the ruling settled the case.

<p>1.—Practice on Appeal—Rendering Judgment.</p> <p>The Court of Civil Appeals may reverse a judgment on the weight of the testimony; but that court can not render judgment if the evidence, when considered in the light most favorable to the party prevailing in the trial court, would sustain his judgment. (P. 448.)</p> <p>3.—Railway—Contract—Authority of President—Location of Station and Offices.</p> <p>The president of a railway company has no authority to bind it by contract to locate and forever maintain a station and its principal offices at a certain place, except as such contract may be authorized or ratified by its board of directors. Kansas City M. & O. Ry. Co. v. City of Sweetwater, 104 Texas, 324, followed. (Pp. 449, 450.)</p> <p>3.—Same—Ratification—Notice.</p> <p>The occupation by a railway of land dedicated for use by it as right of way and depot grounds, did not charge the directors with knowledge of a private agreement between its president and the grantor, not shown by record, that a station and its general offices should be forever maintained at that place, from which ratification of such contract by the directors could be inferred. (P. 451.)</p>

Lucille Gresham, by next friend, sued the railway company and' obtained judgment. This was affirmed on appeal by defendant, who thereupon obtained writ of error.

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

The railway company obtained writ of error on the affirmance, on its appeal, of a judgment obtained against it by Pemberton. •

<p>On motion for rehearing.</p>

<p>Question certified from the Court of Civil Appeals, Third District, in an appeal from Travis County.</p>

Action by the State of Texas, on relation of Louis Cobolini, against A. B. Cole, by quo warranto, to oust defendant from the office of mayor of the City of Brownsville, to which relator claimed election over him. The State, by independent pleading filed by the district attorney, sought to have the election declared void. The trial court adjudged the election void, and defendant ousted from the office at suit of the State; but decreed that relator take nothing by his suit.

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

<p>Error to the Court of Civil Appeals, Fifth District, in an appeal from Dallas County.</p> <p>Thomas sued the Fin & Feather Club, and recovered judgment. On defendant’s appeal this was reversed and rendered against plaintiff, who thereupon obtained writ of error.</p>

The State brought suit against Post, and appealed from a judgment for defendant. Post obtained a writ of error on the reversal of this and rendition of judgment against him by the appellate court.

<p>1. —Trespass—Posse Summoned by Officer—Charge.</p> <p>In an action for damages against persons participating with officers in seizure and taking away of intoxicating liquors of defendant under a search warrant authorized only by an unconstitutional statute, the charges considered are held to relieve defendants from liability if they acted only as a posse summoned by such officers and in ignorance of the invalidity of the search warrant. (Pp. 505, 506.)</p> <p>2. —Practice in the Supreme Court.</p> <p>The Supreme Court can not reverse because the verdict is against the preponderance of the evidence. (P. 507.)</p> <p>S.—Trespass—Posse Summoned by Officer—Voluntary Participation.</p> <p>The evidence, considered in the light most favorable to support of the .verdict, is held sufficient to warrant a submission of the . question whether defendants voluntarily participated in an unlawful trespass on plaintiff’s property by officers acting under a void search warrant, or merely did so upon summons of such officers and in ignorance of the unlawful character of the act, and to support a finding for plaintiff based on the former theory, in which •case the writ and their ignorance of -its invalidity did not protect them. . (Pp. 504-508.)</p>

<p>Application for writ of error to the Court of Civil Appeals, Fourth District, in an appeal from Cameron County.</p>

Appeals, Fifth District, in an appeal from Johnson County. S. R. Johnson and J. B. Copeland sued Hugh Hunt and Winfield Scott in the District Court, and had judgment. Defendants appealed and on affirmance obtained writ of error.

<p>The railway company obtained writ of error on the affirmance, on its appeal, of a judgment of the District Court dissolving an injunction against enforcement of a judgment recovered against it by Lunn in Justice Court.</p>

Error from the Court of Civil Appeals, Fifth District, in an appeal from Dallas County. Louisa L. Mitchell and others sued J. D. Schofield and another for the recover)' of land. Defendants had judgment which was affirmed on appeal by plaintiffs, who thereupon obtained writ of error. Plaintiffs were the heirs of Sallie Lytle, first wife of Geo. Lytle, Sr., the land had not been conveyed to either; but in a suit by the Gulf, Colorado & Santa Ee Railway Company against Geo.

<p>1. —Negligence—Proximate Cause.</p> <p>A defendant is liable for a result of his negligence which, under the circumstances, he might reasonably foresee might happen, but not for such as could not be anticipated. (P. 517.)</p> <p>2. —Same—Case Stated.</p> <p>A farm laborer .working fifty feet away from a railway track was struck and injured by a spike, loose in the tie or lying on the track, and caught up and thrown by the wheels of a passing train. Held, that such injury was not one' reasonably to be foreseen as a possible consequence of thé negligence, and there could be no recovery; nor was the Supreme Court bound by a finding that the injury was a proximate result. (Pp. 516-518.)</p>

Alexander sued the railway company and recovered judgment for damages. Defendant appealed and obtained writ of error on its affirmance. t

Boss and Masterson sued the Banco Minero, a Mexican corporation, and had judgment. Defendant appealed, and obtained writ of error on its affirmance.

Mrs. Davis sued Boe, and had judgment for the recovery of land. Defendant appealed, and obtained writ of error on affirmance (142 S. W., 950). The trustee’s deed introduced in evidence was not copied in the record nor recitals of notice therein shown by the statement of facts.

Edmondson sued Coughran and another.' A judgment for defendants was reversed by the Court of Civil Appeals on plaintiffs appeal. Appellees obtained writ of error on the ground that the ruling conflicted with previous decisions.

<p>1.—Limitation—Commencement of Suit—Jurisdiction.</p> <p>Institution of suit in a court having no jurisdiction» of the subject matter in controversy will not interrupt the running of the Statute of Limitation against the cause of action. (P. 547.)</p> <p>3.—Same—Pleading—Amount in Controversy.</p> <p>In an action against a carrier for damage to property in shipment, brought in the County Court, plaintiff alleged that he was “thereby damaged in the sum of $975”; that thereby defendants "became justly indebted to the plaintiff in said sum of $975”; and that they refused payment "to plaintiff’s damage in the said sum of $975.” The damages as itemized in his ¡petition were, $850 for depreciation in value of the ’property (piano) and $125 for expense of repairing. The prayer was for “judgment for his said damages in the sum of $975, with legal interest thereon, for costs of suit, and for general relief.” Held, that it was not clear therefrom that interest on the $975 from the date of injury was sought to be recovered as a part of the judgment for damages, rather than interest from the date of judgment; and that, under the rule that in a doubtful case all intendments of plaintiff’s pleading will be in favor of the jurisdiction, the action should be taken to be one for $975 only, to be within the jurisdiction of the County Court, and to have interrupted limitation. (Pp. 548, 549.)</p> <p>3.—Cases Distinguished.</p> <p>Schulz v. Tessman, 92 Texas, 488, and Gulf, W. T. & P. By. Co. v. Bromine, 98 Texas, 459, distinguished .-from this case. (Pp. 548, 549.)</p>

<p>Original application by the First National Bank of Aspermont to the Supreme Court, to require the Court of Civil Appeals to certify a question.</p>

Padgett sued Guilmartin for the recovery of land and had judgment therefor. Defendant appealed. The judgment was reversed and rendered in his favor for an undivided two-sevenths of the land sued for. Padgett thereupon obtained writ of error.

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

Original application to the Supreme Court by Mrs. 0. P. Adams, doing business under the style of Adams Fish Market, for mandamus against Sterrett, as State Game, Fish and Oyster Commissioner, requiring him to issue license as a dealer.

Jones & Nixon sued the First State Bank of Hamlin, with whom was joined the sheriff and his sureties, for unlawful seizure and conversion of partnership- property by levy of a writ of attachment against Nixon thereon. Plaintiffs had judgment for $27.08, the value of a small part of the property which had been actually taken into possession and converted under the writ, but were denied any further recovery. They appealed and on affirmance obtained writ of error.

Stevens sued Pedregón and others for recovery of land, and appealed from a judgment for defendants. On its affirmance he obtained writ of error.

Hammond and another appealed from a. judgment granting a temporary injunction in favor of McFarland. The injunction was dissolved by the appellate court and appellee obtained writ of error. Defendants in error filed answer to the application and motion to dismiss the writ for want of jurisdiction.