Volume 109 — Texas Reports

<p>Appeal from the District Court of Grayson. County. Motion to dismiss appeal for want of sufficient bond.</p>

<p>1.—Public Land—Forfeiture—Reinstatement—Repurchase.</p> <p>The Act of April 18, 1913, Laws, 33d Leg., ch. 160, p. 336, allowing repurchase of public land by the forfeiting purchaser on reappraisement, did not repeal article 5423, Rev. Stats., 1911, permitting his reinstatement on payment of defaulted interest. His remedies were concurrent and he could pursue either. (Pp. 7, 8.)</p> <p>3.—Same—Election of Remedies.</p> <p>The purchaser who has forfeited his rights in public land by non-payment of interest, could not be permitted to speculate on the result of pursuing his remedy by reappraisement and repurchase under the Act of April 18, 1913, and, if such appraisement proved unsatisfactory to him, abandon that remedy and apply for reinstatement under article 5423, Rev. Stats. On notifying the Land Commissioner of his desire to repurchase and procuring thereby a reappraisement for that purpose, he was held, by his election, to pursue that remedy only. (Pp. 8, 9.)</p> <p>3. —Constitutional Law—Public Lands—Relief of Purchasers.</p> <p>The Act of April 18, 1913, Laws, 33d Leg., ch. 160, p. 336, granting a forfeiting purchaser the right to repurchase the land on notice of his desire to do so and reappraisement of same, is not one of the character forbidden by article 7, section 4, of the Constitution, precluding, the Legislature from granting relief to purchasers of land belonging to the public school fund. It merely grants a right of priority of purchase under a new contract, and in no way relieves him from the obligation of the former one. (Pp. 9, 10.)</p> <p>4. —Constitutional Law.</p> <p>A law must be clearly contrary to some constitutional provision, in order to justify the courts in declaring it invalid. That a merely possible effect of its operation might enable a purchaser of public land to acquire it at a less price than he was held to pay under a former contract, from which the Legislature was forbidden to relieve him, will not render unconstitutional a statute not necessarily having such result. (P. 10.)</p>

<p>Original proceeding in the Supreme Court on writ of habeas corpus obtained by the relator against the sheriff of McLennan County. Mitchell</p>

Mrs. Parsons sued the Knights of Maccabees and recovered judgment. Defendant appealed, and on affirmance (179 S. W., 78) applied for writ of error. It was claimed on the trial that insured was killed when the railway depot at Lufkin, where he had a desk, was blown up by an explosion of dynamite stored there. The evidence supporting the conclusion of his death is given in the opinion by the appellate court.

Original application by Marshall to the Supreme Court for writ of mandamus against Bobison as Commissioner of the General Land Office, with whom were joined as co-respondents Mrs. J. G. Hall, an adverse' claimant of the right to purchase public land, and her husband.

<p>1.—Master and Servant—Assumed Risk—Charge.</p> <p>As presenting the common law doctrine of assumed risk a charge that plaintiff did not assume any risks or dangers caused by the negligence of defendant was erroneous, there being evidence that he knew of the negligence and the risk. (Pp. 23, 24.)</p> <p>3.—Same—State and Federal Statutes.</p> <p>Under the Texas statute (Eev. Stats., art. 6645) where the master has knowledge that a structure maintained by him is dangerous, the servant does not, by reason of his knowledge of the same fact, assume the risk. But the rule as to employes in interstate commerce, under the Federal statute, is otherwise, it leaving the common law unchanged except where the master’s negligence consists in violation by him of a statutory requirement. (P. 24.) •</p> <p>3.—Same—Interstate Commerce.</p> <p>The claim of a brakeman employed on an interstate road and train and injured while engaged in placing a car of coal upon the chutes used for coaling engines at a station in Texas, by collision with a structure negligently built dangerously near the track, is governed by the Federal statute (U. S. Comp. Stats., 1893, sees. 8657-8665) which makes the common law rule as to assumed risk applicable, and not by the Employers’ Liability Act of Texas, which excludes that defense where the danger of the structure was known to the master. (Pp.-24, 25.)</p> <p>4. —Master and Servant—Interstate Commerce—Conflict of Laws.</p> <p>The State law on the subject of risks assumed by a servant must yield to that of the Federal Government where the injury is to one engaged in interstate commerce, that field having been occupied by the Act of Congress. (P. 24.)</p> <p>5. —Same—Pleading—Waiver.</p> <p>Requesting instructions applying the statutory law of the State, instead of the Federal statute preserving the common law rule, was not a waiver of defendant’s right to have the case tried under the latter rule, where the trial court, refusing such instructions, attempted to charge in accordance with the common law, and did so erroneously. The court was not in such case misled by the requested charges. (Pp. 25, 26.)</p> <p>6. —Same.</p> <p>Where the pleadings and proof of both plaintiff and defendant presented facts showing that plaintiff was injured while employed by defendant in interstate commerce, it was not necessary for the latter to plead the Federal Employer’s Liability Act as the law governing plaintiff’s right to recover. (P. 26.)</p>

Mrs. Gabb sued Boston and others for the recovery of Land, and appealed from a judgment for defendants, on affirmance of which she obtained writ of error.

Presnall and Mossner sued out garnishment against the bank on a judgment in their favor against Rogers. Judgment went for the garnishee and plaintiffs appealed and secured a reversal and rendition in their favor, whereupon the bank obtained writ of error.

Angeline Geer, the mother, with the widow and children of her son, sued the railway company to recover for his death. All the plaintiffs had judgment. On defendant’s appeal, that in favor of the mother was reversed and rendered against her, whereupon she obtained writ of error.

Yoakum County sued Slaughter. Judgment for defendant was, on plaintiff’s appeal, reversed and rendered in favor of appellant. (160 S. W., 1175.) Slaughter thereupon obtained writ of error.

Goodwin sued Mrs. Gunter and having appealed from a judgment in favor of defendant, obtained writ of error from the Supreme Court on its affirmance (143 S. W., 664).

Chamberlain sued Moore for the recovery of land and had judgment. The defendant, who asserted a vendor’s lien upon the land, had judgment for its foreclosure. On appeal by Moore the judgment was affirmed (152 S. W., 195) and he obtained writ of error. There was a previous appeal in this case. (Chamberlain v. Trammell, 131 S. W., 227.)

<p>1.—Receiver—Administration—Jurisdiction.</p> <p>The District Court which had, through a receiver, taken into possession property of a defendant for preservation pending an action by plaintiff for foreclosure of liens thereon and for adjustment of the respective rights of various other claimants of incumbrances against it, did not lose jurisdiction of such cause nor its right to the continued possession of the property by the subsequent death of defendant and the appointment of an administrator upon her estate. (P. 74.)</p> <p>8.—Same—Action—Death.</p> <p>As to claims in suit at the time of the death of defendant, the action does not abate on his death; the administrator may be made a party and the suit prosecuted to judgment. If the action be for foreclosure of liens, no new proceeding therefor in the probate court is necessary; but the judgment must ordinarily be certified to that court for enforcement. (P. 74.)</p> <p>3. —Same—Possession.</p> <p>When a court of • equity, in a cause of which it has jurisdiction, takes possession of property through a receiver, it is withdrawn from the jurisdiction of all other courts, and the power to continue the receivership as a means of aiding it continues so long as the jurisdiction does. (P. 74.)</p> <p>4. —Same—Case Stated.</p> <p>On an original application to the Supreme Court, by an administrator, for mandamus requiring a District Court to vacate a receivership of the property of decedent, this having been taken into possession in the lifetime of decedent in an action brought against her and another to foreclose judgment liens and to determine the respective rights of various intervening lien claimants against the property, it not appearing that the issues as to plaintiff, defendants, and interveners had yet been there determined, it is held that jurisdiction over the cause and the rightful possession of the property as incident thereto was still in the District Court, notwithstanding 'the death of defendant and the appointment of an administrator, and the writ of mandamus must be refused. (Pp. 72-77.)</p> <p>5. —Administration—Possession.</p> <p>The statute (Rev. Stats., art. 3235) gives to an administrator right to possession of the estate only “as it existed at the death of the intestate'.” (P. 75.)</p> <p>6. —Administration—Equity Jurisdiction.</p> <p>The equity jurisdiction of the District Court is conferred in as broad terms as the probate jurisdiction of the County Court. Though the latter is often spoken of as exclusive, where the powers of that court are inadequate, as in the adjustment of equities, resort may be had to the equity powers of the District Court for their determination, the judgment to be enforced through the probate court. (Pp. 75, 76.)</p> <p>7. —Jurisdiction—Enforcement of Judgment.</p> <p>Whether in this case the judgment of the District Court, not yet rendered, would be of such a character as to require that it be certified to the probate court for enforcement, is not here determined. (Pp. 77, 78.)</p>

<p>1. —Negligence—Master and Servant.</p> <p>The master is under no obligation of care to keep the appliances of Ms business safe for use by the employe in a manner and for a purpose for which they were not designed, one for which they were forbidden by its rules to use them, and for which no care on his part could make them safe or appropriate; and this is true though they were frequently used by his servants for such purpose. (Pp. 81-84.)</p> <p>2. —Same—Switchman Mounting Brake-Beam.</p> <p>A switchman standing on the track, mounted an approaching car by grasping a hand-hold and placing a foot on the brake-beam, for the purpose of adjusting the apparatus to make coupling on contact with another car, while so riding in a position from which he could make signals to the engineer. He was injured by losing his footing and falling under the wheels, and alleged, as negligence of the master, that this was due to the brake-beam being permitted to. be loose, so as to have too much play. The act of the switchman was-forbidden by the rules of the employer; but was shown to be frequently practiced by employes. Held that the master was under no duty to exercise care to keep such appliance safe for a purpose for which its servants were forbidden to use it and one for which it was not adapted nor capable of being made safe. (Pp. 81-84.)</p> <p>3. —Same.</p> <p>The rule that an employer is not liable for an injury to an employe which results from the latter putting an appliance to a wholly improper use, is qualified where it appears that it was customary for the appliance to be put to the improper use and the employer knew of such custom. But this qualification can have no- application to an appliance which is not only wholly unsuited to such use, but one which, from its nature, can not possibly be made safe for such use. (P. 83.)</p> <p>4. —Case Distinguished.</p> <p>St. Louis S. W. By. Co, of Texas v. Keith, 58 Texas Civ. App., 323, distinguished. (P. 84.)</p> <p>5.—Contributory Negligence.</p> <p>Negligence could not be predicated upon a failure of the master to keep ah appliance in a condition proper for use by the servant in a manner amounting to negligence per se by the latter. Ft. Worth & D. C. Ry. Co. v. Anderson, 118 S. W., 1113, discussed. (P. 84.)</p> <p>Error to the Court of Civil Appeals for the Third District,. in an appeal from Falls County.</p> <p>Gerretts sued Freeman, receiver of the International & Great Northern Railroad Company, for damages for personal injuries, and recovered judgment. On appeal by the defendant the judgment was affirmed (153 S. W., 1163) and he thereupon obtained writ of error.</p>

Baker sued Coman and others for injunction against maintaining a bawdy house. The injunction was granted by the trial court, but was dissolved on reversal of the judgment on defendant’s appeal. Appellee then obtained writ of error.

<p>Limitation—Adverse Possession—Claim of Right.</p> <p>The adverse possession which will support a claim of title by limitation must be commenced and continued under a claim of right inconsistent with and hostile to the claim of another (Rev. Stats., art. 5681). But a naked trespasser, if so holding, may claim by limitation. It is not necessary that his entry and holding be founded on his having some character of title. Stevens v. Pedregon, 106 Texas, 576, limited. (Pp. 89, 90.)</p>

<p>1. —Action—County Attorney—Intoxicating Liquors—Injunction.</p> <p>Action in the name of the State, under article 4674, Revised Statutes, to enjoin an incorporated social club from keeping for sale intoxicating liquors, in admitted perversion of its charter powers, may be maintained by a county attorney. (Pp. 91, 92.)</p> <p>2. —Same—Constitutional Law—Attorney General.</p> <p>Though the Constitution (art. 4, sec. 2) imposes upon the Attorney General alone the duty of bringing suit “to prevent any private corporation from exercising any power ... not authorized by law,” it was within the power of the Legislature, as was done by article 4674, Rev. Stats., to declare the business of selling intoxicating liquors without license, whether pursued by an individual or a corporation, to be a nuisance, and to provide for its abatement by summary remedy on suit brought by the county attorney in the name of the State, though the act by a corporation also constituted a perversion of its charter powers and, as such, was to be restrained only hy suit through the Attorney General. State v. Paris Ry. Co., 55 Texas, 76, limited. (Pp. 91-93.)</p>

Coffman and others obtained injunction against Moore and others restraining them from expending the proceeds of county bonds issued by authority of a vote of the taxpayers at a location other than the one designated in the proposition submitted and voted on. Writ of error was granted by the committee of judges on the affirmance of such judgment by the appellate court.

<p>Original application to the Supreme Court by Maud, tax collector, for writ of mandamus against Terrell, State Comptroller. B. B. Humphrey intervened in his own interest seeking the same relief.</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Matagorda County.</p> <p>The Ward Cattle and Pasture Company sued Carpenter to recover possession of cattle held by the defendant for impounding fees under the stock law, from the operation of which plaintiff claimed that the county was excepted, and for injunction against such impounding. Judgment was for defendant and was affirmed on plaintiff’s appeal, whereupon he obtained writ of error.</p>

Question certified from the Court of Civil Appeals for the Second District, on dissent in such court from the ruling on an appeal from Bosque County.

Original application to the Supreme Court for writ of mandamus against Robison as Land Commissioner, with whom L. H. Bailey, an adverse claimant, was joined as co-respondent.

<p>Writ of Error—Practice in Supreme Court—Jurisdiction—Time—Motion for Rehearing.</p> <p>Article 1541, Revised Statutes, is imperative in requiring that application for writ of error be made within thirty days from the overruling of motion for rehearing. The record here disclosing that an order of the Court of Civil Appeals, made on a second and identical motion setting aside the order overruling the first one and again overruling the motion, was for the purpose of enabling the defeated party, who had no notice of the first overruling order until the expiration of thirty days thereafter, to obtain revision of the judgment by the Supreme Court on writ of error, it is held that its lost jurisdiction could not' be so restored, and the application for writ of error is dismissed. Mr. Justice Hawkins dissents. (Pp. 116, 117.)</p>

<p>1. —Constitution—Counties—Local and Special Laws.</p> <p>The Legislature is forbidden to pass any local or special law regulating the affairs of counties (Const., art. 3, sec. 56). It can not, therefore, as incident to a local law for maintaining public roads in a county, alter and fix the compensation of County Commissioners, by providing an annual salary in lieu of the fees and compensation fixed for their services by the general laws of the State. (Pp. 124, 125.)</p> <p>2. —Same—Case Stated.</p> <p>The special Act of the 33d Legislature, Laws of 1913, chap. 177, p. 296, making provision for a road system for Bexar County, enacted that each County Commissioner should receive an annual salary of $2400, in lieu of all other fees and per diem of all kinds now payable or that may hereafter be allowed by general law, and suspended articles 3870 and 6901 of the Revised Statutes, by which they were to be paid three dollars per day for each day, within certain limits,, they are engaged in holding a term of the Commissioners Court and for each day, not exceeding ten days in one month, for their services as supervisors of public roads. Held that the Act in question was unconstitutional as being an attempt to regulate the affairs of the county by local law. (Pp. 124, 125.)</p>

Original application by Ford to the Supreme Court for writ of mandamus against Robison, as Commissioner of the General Land Office, with whom W. T. Jones, an adverse claimant of the land, was made corespondent.

The State sued Hoffman to collect taxes and penalty for non-payment. Plaintiff had judgment only for the taxes, which had been tendered into court, and was denied recovery of the penalty. The judgment being affirmed on appeal by the State, it thereupon obtained writ of error.

Original application to the Supreme Court by Stockwell and another for writ of mandamus against Robison as Commissioner of the General Land Office. Hudson and another, adverse claimants of the right to purchase, were also made respondents to the petition.

Dilley sued the Liquid Carbonic Company for personal injuries received while in its employment, and recovered judgment, which was affirmed on appeal by defendant. The latter thereupon obtained writ of error.

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

Carroll and others sued for injunction restraining Williams, county treasurer, from paying out, on warrants drawn against the county road and bridge fund, certain moneys alleged to have been transferred unlawfully to that fund from another. The trial court sustained injunction. On appeal by defendants the judgment was reversed in part and in part sustained. Both parties then applied for and obtained writ of error.

The Houston Oil Company sued the Village Mills Company and obtained an injunction. Defendant appealed from the interlocutory order granting same, and the appellate court dissolved the injunction on the-ground that the lower court had no jurisdiction to grant it. The Honston Oil Company thereupon obtained writ of error.

Original application by Moorman to the Supreme Court for writ of mandamus against Terrell as State Comptroller, to require respondent to allow him. a credit claimed in his accounts as county tax collector.

<p>1.—Land Certificate—Transfer—Patent to Heirs.</p> <p>A patent of land to the heirs of the person originally entitled to receive the grant but who has lawfully transferred his right thereto to another, to whom as assignee the certificate issued, enures to the benefit of the assignee, who takes therefrom both the legal and the equitable title; and this though the ancestor’s transfer contained no warranty, nor expressed an intent that the assignee should have the land itself as well as the certificate otherwise than by the fact of his executing such transfer. (Pp. 182-184.)</p> <p>2.—Same—Legal Title—Color of Title.</p> <p>By patent to the heirs of an original grantee by virtue of a land certificate issued to another to whom he had assigned his right, the heirs take nothing which will avail them or those claiming under them as title or color of title to support limitation by three years’ possession as against those claiming under the assignee. (P. 184.)</p> <p>3. —Case Stated.</p> <p>A land certificate issued to an assignee of the (me originally entitled to the grant and was located and patent obtained by such assignee; but patent issued to the heirs of the original grantee. Held, that legal title vested by the patent in the assignee. In a suit by those claiming under him to recover the land from those claiming under such heirs, the latter had neither title nor color of title to support limitation by possession for three years. (Pp. 182-184.)</p> <p>4. —Cases Distinguished.</p> <p>Barroum v. Culmell, 90 Texas, 94; and Satterwhite v. Rosser, 61 Texas,. 166, distinguished from this case. (P. 182.)</p> <p>5. —Stale Demand—Legal Title:</p> <p>The plea of stale demand is not available against a holder of the legal title. (P. 184.)</p>

<p>Questions certified from the Court of Civil Appeals for the Eighth District, in an appeal from Harris County.</p> <p>The majority and the dissenting opinion in the appellate court may . be found in 155 S. W., 703, wherein the judgment was reversed, opinion by Harper, C. J., Higgins, J., dissenting, whereupon the case was certified to the Supreme Court on dissent.</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Johnson County.</p> <p>Beasoner sued the railway company and appealed from a judgment for defendant on the sustaining of general and special demurrers to his petition, which he did not thereupon amend. The judgment was affirmed by the appellate court, and appellant then procured writ of error.</p>

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

<p>Motion for rehearing of an application for writ of error refused by the Committee of Judges.</p>

<p>1. —Jurisdiction of Supreme Court.</p> <p>In cases in which the judgments of the Court of Civil Appeals are declared final by article 1591, Rev. Stats., such as those within the jurisdiction of County Courts, no writ of error lies to the Supreme Court under article 1521, Rev. Stats., as amended by Act of March 15, 1917 (Laws, 35th Leg., p. 140). Cole v. State, 105 Texas, 472, followed. (P. 213.)</p> <p>2. —Same—Stare Decisis—Statutory Construction.</p> <p>Mr. Justice Hawkins, who had dissented from the construction, announced in Cole v. State, 105 Texas, 472 (McFarland v. Hammond, 106 Texas, 579; Spence v. Fenchler, 107 Texas, 443), feels now constrained to follow the majority ruling therein as constituting a settled rule of practice, and also as governing the construction of art. 1521, Rev. Stats., as subsequently amended (1917) in the light of such ruling. (Pp. 213, 214.)</p>

Nathan Harle sued Bruff Harle and others, and had judgment. It was reversed and rendered on appeal by defendants, and Nathan Harle obtained writ of error.

The action was by the State, on relation of Walton as tax collector, against Daniel Yturria and others, to recover the inheritance tax on property devised to them by Francisco Yturria. Judgment was for all the defendants. The State appealed, and obtained writ of error on affirmance.

Motion by Underwood for leave to file a petition to the Supreme Court for writ of mandamus against Robison as Commissioner of the General Land Office. Chester H. Bryan was joined with the Commissioner as co-respondent.

Civil Appeals for the Sixth District, in an appeal from Hopkins County. Horn sued the telegraph company and the latter appealed from a judgment in his favor. On reversal and remand Horn obtained a writ of error.

<p>Error from Court of Civil Appeals of Sixth Supreme Judicial District.</p> <p>On motion for written opinion on rehearing.</p>

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

<p>1.—Attachment—Justice Court Judgment—Foreclosure of Lien—Sale.</p> <p>A judgment in Justice Court, on recovery by plaintiff, foreclosing the lien of an attachment issued therein, was not void as beyond the jurisdiction of such court; and a sale, as under execution, of the attached real estate, by virtue of such foreclosure, regularly made, passed title to the purchaser. (Dp. 240-242.)</p> <p>3.—Same—Constitution.</p> <p>The liens referred to in article 5, section 8, of the Constitution, for foreclosure of which jurisdiction is thereby restricted to the District Court, are such as were created by the act of parties, as existed before the suit was commenced, and formed the basis of it or an important part of same. Hillebrand v. McMahan, 59 Texas, 450, approved and followed. (P. 241.)</p> <p>3. —Same.</p> <p>The Justice Court, in an attachment suit, may enforce plaintiff’s right to' subject the attached property to his judgment,- either by express foreclosure of the attachment lien, or by a simple money judgment enforced by execution against the attached property and accomplishing the same result as express foreclosure. (Pp. 242, 243.)</p> <p>4. —Cases Reviewed.</p> <p>Hillebrand v. McMahan, 59 Texas, 450; Wallace v. Begel, 66 Texas, 574; Grizzard v. Brown, 2 Texas Civ. App., 585; LeDoux v. Johnson, 23 S. W., 405; Rule v. Richards, 149 S. W., 1075, 159 S. W., 389; McCall v. Rage, 155 S. W., 655, approved and followed. Rulings in Shandy v. Conrales, 1 App. C. C. (White & W.)', sec. 238; Newton v. Heidenheimer, 2 App. C. C. (Willson), 126; Rowan v. Shapard, 2 App. C. C. (Willson), secs. 297, 302; Miller v. Schneider, 2 App. C. C. (Willson), sec. 372; Wright v. Cullers, 2 App. C. C. (Willson), sec. 750; Hamill v. Samuels, 135 .S. W., 747, and Patterson v. McMinn, 152 S. W., 225, disapproved. (Pp. 241-244.)</p> <p>5.—Statutes.</p> <p>Pasch. Dig., Laws, arts. 139, 142, 143, 145, 146; Act of March 30, 1885, Laws, 19th Leg., p. 73; Revised Statutes 1895, art. 214; Revised Statutes, 1911, art. 268, reviewed and discussed. (Pp. 241-243.)</p>

<p>1. —Minor—Removal of Disability—Domicile—Venue—Jurisdiction.</p> <p>The domicile of a minor, within the meaning of article 5947, Rev. Stats., is in the county where his father resides. The District Court of that county had jurisdiction of his application there to remove his disability of minority; and its judgment so determining was valid and effective, though the minor was then in person in another county to which his father, by virtual emancipation, had permitted him to remove, reside there, and there pursue his own livelihood. (Pp. 246-251.)</p> <p>2. —Jurisdiction—Presumption.</p> <p>Whether in a special proceeding, like that to remove a minor’s disability, not supported by the presumptions usually upholding judicial proceedings, the recital, on the face of the proceedings, of facts, which sustain the jurisdiction can be collaterally impeached, is questioned but not determined. (P. 251.)</p> <p>3.—Cases Discussed.</p> <p>Russell v. Randolph, 11 Texas, 465; Franks v. Hancock, 1 Texas U. C., 561; Lanning v Gregory, 100 Texas, 310; First State Bank v. Fain, 157 S. W., 454; Hardy v. De Leon, 5 Texas, 211; Brown v. Boulden, 18 Texas, 431; Durrill v. Robison, 138 S. W., 107; Pearson v. West, 97 Texas, 238; Legate v. Legate, 87 Texas, 248, cited with approval. (Pp. 248-250.)</p>

Hale, a resident of Oklahoma, sued the railway company, a Missouri corporation, for personal injuries received in Arkansas. Judgment for plaintiff was affirmed on appeal by defendant, who thereupon obtained writ of error.

The State sued Elza for recovery of land and had judgment. On defendant’s appeal, this was reversed and rendered in his favor, and the State obtained writ of error.

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

Ayers sued the railway company and obtained judgment, which was affirmed on defendant’s appeal. Appellant then obtained writ of error.

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Jasper County.</p> <p>The Houston Oil Company sued Hamilton and others to restrain the-cutting of timber on certain land. Judgment for defendants was affirmed on appeal by plaintiff, who thereupon obtained writ of error.</p>

The Houston Oil Company of Texas brought suit in 1911 to enjoin Boykin and others from cutting timber to which plaintiff claimed title by purchase from defendants in 1900. The jury found that a reasonable time for plaintiff to cut and remove the timber purchased had already elapsed, and the trial court, holding the purchaser hound to remove in a reasonable time refused the injunction. This was affirmed on appeal by plaintiff, who thereupon obtained writ of error.

O’Bannon sued the insurance company and obtained judgment, which was affirmed on defendant’s appeal. The company thereupon procured writ of error.

The Bed River National Bank sued J. E. Ferguson as principal, and his wife and others as sureties, upon their note. It recovered against all the defendants except the wife, Bessie E. Eerguson, who had pleaded coverture. On appeal by the bank the judgment was affirmed, and appellant then obtained writ of error.

. The hank sued Tinkham and wife on their joint note executed November 10, 1913, and appealed from a judgment in which it recovered against the former but was denied recovery against the wife. On affirmance (195 S. W., 880) appellant obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District on writ of error from Wise County.</p> <p>The bank sued Akin and wife as joint makers of a promissory note executed December 3, 1914, and for foreclosure of a deed of trust given by both to secure it. Neither defendant answered and judgment was taken by default against both with foreclosure of the mortgage. Nellie P. Akin, the wife, brought the case to the Court of Civil Appeals on writ of error, asserting that she appeared on the face of the record to be a married woman, that there were no allegations charging her personally or her separate estate with liability or calling on her to plead her disability. The appellate court reformed the judgment, disallowing the recovery against her except for the foreclosure. (194 S. W., 610.) The bank thereupon procured writ of error from the Supreme Court.</p>

Ed Blood, an unmarried man, was killed by accident while in the employ of the Merrimac Oil Company. That corporation had entered into a contract with the Southwestern Surety Insurance Company for the compensation of its employes for accidental injuries, under the terms of the Employers’ Liability Act of April 16, 1913. Deceased left no parent or child surviving, his heirs being two brothers and two sisters.

<p>1. —Constitutional Law—Personal Liberty—Public Health—Vaccination.</p> <p>The personal liberty guaranteed by the Federal and State Constitution is not invaded by public regulations in the interest of health enforcing .vaccination of school children. (Pp. 306, 307.)</p> <p>2. —Same—Property Bights.</p> <p>A governmental regulation requiring vaccination of children of scholastic age as a condition of their admission to the public schools is not an invasion of property rights of such children or of the taxpaying parent denying them due process of law or equal protection of the law. Admission to public schools is rather a privilege than a strict right; and if considered as a property right is subject to regulation by the police power of the .State in the interest of public health. (Pp. 307, 308.)'</p> <p>3. —Same—Religious Conviction—Christian Science.</p> <p>The rights of conscience in the matter of religious belief protected by the Federal and State Constitutions are subject to the police power of the State and obedience to reasonable health regulations adopted by it. (Pp. 308, 309.)</p> <p>4. —Police Power—Delegation of Authority.</p> <p>The police power of the State may he delegated to municipalities for appropriate purposes, such as regulation of public health; and the power to enact an ordinance requiring vaccination of school children was so delegated to the city council of New Braunfels by article 858, Rev. Stats., authorizing all acts and regulations “necessary or expedient for the promotion of health or the suppression of disease.” Such general delegation of the power is sufficient. (Pp. 309, 310.)</p> <p>5. —Public Health—Reasonableness of Regulation.</p> <p>Much must be left to the discretion of a city council charged with general power to protect public health, in determining the measures to he adopted. The unreasonableness or want of necessity for the method selected must he clear, before a court would be warranted in setting it aside as unreasonable. (P. 310.)</p> <p>6. —Same.</p> <p>Under circumstances here" shown the anpellate court was not justified in declaring unreasonable and invalid an ordinance by the city council of New Braunfels requiring vaccination of children attending its public schools. (P. 310.)</p> <p>7. —Opinion Limited.</p> <p>The rulings herein are not to he taken as extending to requirements of compulsory vaccination; hut merely to the right of the city council to exclude from the public schools children not complying with its regulations on that subject. ' (P. 311.)</p>

Ethel L. Pope, in her own behalf as widow of Thomas A. Pope, and as next friend of their three minor children, sued to recover for his death by alleged negligence while .in the service of the Kansas City, Mexico & .Orient Railway Company.

Mrs. Bird, as administratrix, recovered judgment against the Ft. Worth & Rio Grande Railroad Co. This, on the company’s appeal, was reversed and rendered in its favor. Thereupon the administratrix obtained writ of error.

Original application by the levee district for writ of mandamus against Looney, as Attorney General, to require him to approve bonds issued by the complainant.

The State sued the Southwestern Telegraph and Telephone Company and the Paducah Telephone Company for penalties for refusing to make connection between their lines and arrange for transfer of messages in the City of Childress in pursuance of an order of its city council to that effect made in pursuance of section 4 of the Act of May 16, 1907 (Laws 30th Leg., p. 462).

The Home Investment Company and others, defendants in the trial court, appealed from a judgment recovered against them by Strange; and on its affirmance they obtained writ of error.

<p>Appeal and Error &wkey;M151(2) — Disposition</p> <p>ox Cause on Appeal — Rendition ox Judgment.</p> <p>On appeal in trespass to try title, where it appeared judgment for plaintiff! should not have been had without return of certain sums expended by defendant, the judgment will be modified on motion by plaintiff by crediting defendant with the amounts- expended, where the evidence is undisputed as to the amount, although the jury made no finding thereon.</p>

<p>On motion to reform judgment,</p>

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

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

<p>1. —Public Land—Sale—Mineral Bights—Classification.</p> <p>A purchaser of school land classified and sold as agricultural land under the Act of April 12, 1883 (Laws, 18th Leg., ch. 88, p. 85), acquired title in fee, including the right to all minerals therein, where such land was not known, at the time of the sale, to contain valuable minerals, though by section 14, of such Act, the State reserved to itself the minerals on all lands sold under it. (Pp. 370-383.)</p> <p>2. —Same—Permit to Prospect.</p> <p>A purchaser of school land under the Act of April 12, 1883, having thereby acquired the right to the minerals therein, the State could not grant to another a permit to prospect on it for minerals under the Act of 1913 (Acts 33d Leg., ch. 173; Acts of 33d Leg., Extra Session, ch. 18). (Pp. 375, 379.)</p> <p>3;—Same—Cases Followed.</p> <p>The decisions of the courts of the United States in regard to unknown minerals in land sold under Acts of Congress (Deffeback v. Hawke, 115 U. S., 392; Davis v. Weibbold, 139 U. S.. 507; Dower & Richards, 151 U. S.,, 658; Shaw v. Kellog, 170 U. S., 312; Burke. v. Southern Pac. Ry. Co., 234 U. S., 669), and of the courts of this State on the same question under its statutes (Schendall v. Rogan, 94 Texas, 585), are approved and followed. (P. 372, 376).</p> <p>4. —Public Land—Sale—Reservation of Minerals—Statutory Construction.</p> <p>In construing the Act of April 12, 1883, for sale of school land and determining the effect of the reservation from sale, by section 14 of that Act, of minerals contained in such land, it is proper to consider the Mining Law enacted by the same body (Act of April 14, 1883, Laws, 18th Leg., p. 85), placing the control of mining rights in the hands of the land hoard with the duty and power to ascertain what public lands contained valuable minerals and should he dealt with as such. (Pp. 378, 379.)</p> <p>5. —Statutory Construction—Practical Effects.</p> <p>That public land not known to contain valuable minerals, purchased on the faith of a conveyance in fee by the State, after classification by it as agricultural and not mineral-hearing, if subject to exploitation by others for the development of mining, might, at any future time, be rendered useless to the purchaser for agriculture and this without provision for compensating him, is considered in determining whether or not such land should be included in those in which, by statute, the mineral rights were reserved to the State. (Pp. 379, 380.)</p> <p>6. —Statutes—Revision—Effect.</p> <p>The re-enactment of the Validating Act of 1879, releasing mineral rights to previous purchasers of land, by its inclusion as article 4041, in the Revised Statutes, gave it operation as a new statute from that date, validating such mineral rights in purchasers up to the time of adoption of the Revised Statutes. (Pp. 381, 382.)</p> <p>7.—Same.</p> <p>The general rule that the re-enactment of a former statute by including it in a revision of the statutes, adopts it only with the same effect the statute originally had, is one of construction only, and is not conclusive. (P. 381.)</p> <p>8.—Validating Act—Constitutional Law.</p> <p>Article "4041, Rev. Stats, of 1895, being merely a validating act, was not unconstitutional as granting relief to purchasers of school lands (Const., art. 7, sec. 4) nor as an appropriation of public land to other than school purposes (Const., art. 7, sec. 5). (P. 382.)</p>

The appellate court had refused to consider an assignment of error in overruling appellant’s application for change of venue. Webber sued, the railway company for personal injuries and recovered judgment. Defendant appealed, and on affirmance applied for writ of error. The application was refused without written opinion but this opinion was; delivered on the applicant’s motion for a rehearing thereon.

Stone and others sued Jackson and others for recovery of land. Plaintiffs had judgment which, on appeal by defendants, was reversed, reformed, and rendered in part for appellants. (155 S. W., 960.) Appellees, plaintiffs below, then obtained writ of error.

The suit was by Lee against Moore, and resulted in judgment for defendant. This was reversed by the Court of Civil Appeals on plaintiff’s appeal. (162 S. W., 437.) Appellee, defendant below, thereupon obtained writ of error. The opinion of the Commission of Appeals, to-whom the case was referred, recommended affirmance. The Supreme Court, however, declined to adopt the recommendation and rendered, the following opinion.

<p>Error to the Court of 'Civil Appeals for the Seventh District, in an appeal from Swisher County.</p> <p>Smyer sued the Prudential Life Insurance Company of Texas and Washer to cancel a note given in payment for stock in the company and the stock issued therefor and to recover back interest payments. Washer, by cross action, sought recovery on the note and foreclosure of lien securing it. Smyer had judgment for his interest payments and cancellation of stock, and Washer recovered on the note against Smyer and' the company as indorser, with foreclosure of lien. The Prudential Life-Insurance Company appealed, and the judgment was reversed and rendered, allowing Smyer cancellation both of the note and of the stock,, and Washer recovery on the note only against the insurance company." as indorser. Both Washer and the insurance company obtained writs., of error.</p>

Suit by W. S. Moore and another against J. V. Jenkins. From a judgment of the Court of Civil Appeals (168 S. W. 398), affirming a judgment for defendant, plaintiffs bring error.

Motion in the Supreme Court for rehearing of an application for writ of error by the committee of judges of the Courts of Civil Appeals to whom same had been referred by the Supreme Court, under the Act of March 15, 1917, for the relief of that court. Mrs. Shine sued Mrs. Scott and another, independent executors of the will of Winfield Scott, deceased, in the District Court of Tarrant County, for damages for personal injuries.

<p>1.—Foreign Law—Evidence—Decisions.</p> <p>Upon the law governing a commercial transaction (negotiability and endorsement of a note) in another State or Territory, our courts will follow the rulings of the courts of that State on general questions of commercial law, where differing from our own, on pleading and proof thereof, as they would such law established by statutory enactment. (Pp. 416, 417.)</p> <p>3.—Foreign Law—Burden of Proof.</p> <p>The burden is upon one relying on the law of another State or Territory to defeat liability upon a transaction had there and actionable by our law, to plead and prove such law. (P. 417.)</p> <p>3. —Foreign Law—Evidence—Decisions—State and Territory of Oklahoma.</p> <p>A decision of the Supreme Court of the State of Oklahoma as to the law there prevailing, did not show the ruling announced to have been the law formerly existing in the Territory of Oklahoma, the courts of the United States being the ultimate authority as to the law of the Territory. (P. 417.)</p> <p>4. —Same—Case Stated.</p> <p>Defendant, who was sought-to be held liable on endorsements in blank of notes providing for payment of attorney’s fees, and which were made, were payable, and were endorsed in the Territory of Oklahoma before its admission as a State, introduced in evidence decisions of the Supreme Court of the State, holding such instrument not negotiable and a blank endorser not liable. Held that this did not establish such to have been the law of Oklahoma.' Territory at the time of the transaction, the rules in Texas, and that recognized by the courts of the United States having the ultimate revisory power over the territorial courts being otherwise. (Pp. 417, 418.)</p>

<p>Error to the Court of Civil Appeals for the Seventh District, on error from Potter County.</p> <p>The bank sued Thompson on a note given by him for subscription to stock. Verdict was for plaintiff and defendant brought the case on error to the Court of Civil Appeals, where it was affirmed, whereupon he obtained writ of error from the Supreme Court.</p>

Brock sued the Insurance Company on a fire insurance policy and recovered judgment. The defendant appealed, and on affirmance obtained writ of error.

Hudgins sued Thompson for specific performance and appealed from a judgment in favor of defendant. He obtained writ of error on affirmance by the Court of Civil Appeals.

Davis, as receiver for the Union Trust Co., sued Allison and others-Judgment was for defendant and it was affirmed on appeal by plaintiff, who then obtained writ of error.

The Townsite Co. sued the Telephone Co. for injunction, and appealing from a judgment for defendant, obtained writ of error on its affirmance.

Moore and others sued Jenkins and appealed from a judgment for defendant, on affirmance of which they obtained writ of error. The case, on reference to the Commission of Appeals, was recommended for reversal and rendition of judgment, which latter recommendation is not here adopted.

Henderson sued the Plow Co. and others to enjoin an execution sale and had judgment. On defendant’s appeal this was reversed and rendered in their favor (168 S. W., 414) and Henderson obtained writ of error.

Hedeman obtained writ of error on a judgment of the Court of Appeals (184 S. W., 298), reversing and rendering for Mrs. Hewnom a judgment in his favor in the District Court.

<p>Homestead—Mortgage Before Marriage.</p> <p>A single man gave a mortgage on land, married, made it his homestead,, abandoned it, and renewed the note and mortgage to a loan company which had taken it over at his request and while it was still abandoned as homestead. Afterwards he reoccupied it as homestead of himself and family and died, leaving his estate insolvent. Held that the mortgage was superior to the homestead rights of his surviving wife. Hedeman v. Newnom, 109 Texas, 472. (P. 480.)</p>

The action was brought by Faulk .against Batson-Milkolme Company, for personal injuries. Judgment went for plaintiff and defendant company appealed. On affirmance (209 S. W., 837) the company applied for a writ of error, and on its refusal filed a motion for rehearing thereon in terms criticized in the opinion following.

Faust and another brought this suit against Brown for price of lumber furnished him to erect a building on the property involved; and joined as defendants Hicks and others, trustees of church property on which it was sought to establish a lien under the statute for such debt. On trial judgment was for the debt claimed, but the lien was denied.

Motion in the Supreme Court for rehearing on an application for writ of error which had been refused. The State National Bank of San Antonio sued the East Coast Oil Co., S. A., and others, and appealed from a small judgment in its favor against the first named defendant. This being affirmed, appellant applied for writ of error. The opinion on appeal is reported in 208 S. W., 190.

Mrs. Grubb sued McAfee and obtained judgment. Defendant appealed, and plaintiff, appellee, obtained writ of error on a judgment, reversing and rendering for defendant. 164 S. W., 925.

Allen sued Pollard, Executor of the Estate of W. C. Thomas, and recovered judgment. The executor appealed and judgment was reversed and rendered in his favor (171 S. W., 530). Allen thereupon obtained writ of error.

Conn sued Kirby and others for recovery of land and obtained judgment: Defendant appealed, and an affirmance (156 S. W., 232) obtained writ of error.

<p>1. —Venue—Contract—Public Policy.</p> <p>It is against public policy in this State to permit bargaining about depriving courts of jurisdiction expressly conferred by statute over particular causes of action and defenses. Eaton v. International Travelers’ Asso. of Dallas, 136 S. W., 817, followed. (P. 548.)</p> <p>2. —Same—Accident Insurance.</p> <p>A provision in the policy issued by a mutual assessment accident insurance company and in its by-laws existing at the time the policy was issued, that, action for loss thereon should be brought in Dallas County, the domicile of the company, in contravention of the statutes (Rev. Stats., art. 1830, sections 24, 29) giving jurisdiction and venue to other counties also, was contrary to public policy and without effect. (Pp. 546-548.)</p> <p>3. —Evidence—Declarations.</p> <p>Statements by a party undergoing suffering attributing his condition to an accidental injury, which he stated he had received two or three days previously and in another State, were hearsay, self-serving, and inadmissible to show the cause of his death, in an action on his policy of insurance against accident. City of Galveston v. Barbour, 62 Texas, 175; Hicks v. G. H. & S. A. Ry. Co., 71 S. W., 324; 72 S. W., 837, followed. (Pp. 548, 549.)</p> <p>4. —Practice in Supreme Court—Evidence—Rendition or Remand.</p> <p>Tire only testimony to show that death of insured was from accidental causes being self-serving hearsay declarations made by him, and opinions of medical experts solely based on such inadmissible testimony, and it being admitted that no further evidence cbuld be produced on another trial, the Supreme Court, on reversing a recovery on a policy of accident insurance for error in admitting such evidence for plaintiff, renders judgment for defendant instead of remanding. (Pp. 549, 550.)</p>

<p>Error to the Court of Civil Appeals for the Eighth District, in an appeal from Erath County.</p> <p>Powell sued the International Travelers’ Association, and recovered judgment. Defendant appealed and on affirmance obtained writ of error.</p>

On the application of Jones for final discharge as administrator of the estate of P. S. and Alma Roberts, the County Court, and the District Court, on appeal, disallowed certain credits. This was affirmed by the Court of Civil Appeals on his appeal (199 S. W., 694), and he obtained writ of error.

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

<p>1. —Practice on Appeal.</p> <p>On appeal, a case submitted on special issues, will be treated as though all facts sustained by evidence, and not inconsistent with the facts found, were so. determined as to support the judgment rendered, here applied to establish that, a voluntary note given by an insolvent to his mother was not intended’by them to be paid. (P. 576.)</p> <p>2. —Fraud—Voluntary Note. -*</p> <p>Though a note given by a son to his mother might be good as a voluntary act against subsequent creditors, if made without intention of payment and for the purpose of defrauding creditors it would be void as against either existing, or future creditors. (P. 576.)</p> <p>3. —Fraudulent Conveyance—Preference of Creditors.</p> <p>The right of an insolvent debtor to prefer one creditor to another is subject, to the qualification that no more property must be transferred than is essential to pay the debt at a fair valuation. (Pp. 576, 577.)</p> <p>4. —Same—Transfer of Excessive Property.</p> <p>Where a conveyance in discharge of a debt by an insolvent, is of property unreasonable in amount for that purpose, it is fraudulent in law as against other creditors, and will be set aside as to the whole transaction, not sustained as to so much as is necessary to discharge the actual debt. (P. 577.)</p> <p>5. —Fraudulent Conveyance—Homestead.</p> <p>An insolvent debtor who has fraudulently conveyed property not then his homestead, can not thereafter establish homestead rights thereon against creditors impeaching such transfer. This conveyance was good as between him and the grantor and left him no title in the land to support a homestead claim. (Pp. 577, 578.)</p> <p>6. —Same—Estoppel.</p> <p>Creditors setting aside a conveyance of an insolvent for fraud were not estopped thereby from asserting the validity of the conveyance as against the grantor, to defeat his subsequent attempt to establish his homestead thereon. (Pi 578.)</p>