Volume 110 — Texas Reports

Original proceeding in the Supreme Court, petition by Sibley for writ of mandamus against Robison, as Land Commissioner, with whom were joined as -respondents W. J. Fox, Humble Oil & Refining Co., C. D. Keen, and W. C. Woolf.

<p>Laborer’s Lien—Priority—Previous Mortgage.</p> <p>The lien given a laborer upon all property connected with the performance of his labor owned by or in possession of his employer, by the Act of May 27, 1897 (Laws, 25th Legis., p. 218) does not take precedence over a prior duly registered chattel mortgage of the same property. Mr. Justice Hawkins, dissenting. (Pp. 6-9.)</p>

The State brought suit for injunction against the Country Club and appealed from a judgment denying, in the main, the relief sought. This being, reversed and rendered for appellant (173 S. W., 570) the Country Club obtained writ of error.

Haley sued Walker and another for recovery of land. The trial court directed a verdict for plaintiff. Defendants appealed and on affirmance (181 S. W., 559) obtained writ of error.

This was an original proceeding, in the Supreme Court brought by the First Texas State Ins. Co. to obtain writ of mandamus requiring respondents, the Chief Justice and Associate Justices of the Court of Civil Appeals for the Ninth Supreme Judicial District to certify to the Supreme Court quéstions of law in a case decided by them.

<p>Original application by Smith to the Supreme Court, for writ of habeas corpus.</p>

Action by Nicholas Hanrick and others against E. <3. Hanrick and others. There was a judgment of the Court of Civil Appeals (139 S. W. 721) affirming in part and reversing in part, with instructions, a judgment for partition, and defendants bring error.

<p>1. —Commissioners Court—County Judge.</p> <p>A lawful session of the Commissioners Court of a county may be held by a quorum of three commissioners though the county judge, be not present and presiding. (P. 71.)</p> <p>2. —Same—Constitution and Statutes.</p> <p>Constitution, art. 5, sec. 18; Act of July 22, 1876, Laws, 15th Leg., p. 51; Rev.. Stats., 1879, art. 1510;, Rev. Stats., 1911, arts. 2237, 2238, 2276; construed, and held .that a quorum of the Commissioners Court for the transaction of its business was legally constituted by the presence of three commissioners without the county judge, or by the county judge and two commissioners. (Pp. 71, 72.)</p> <p>3. —Same—Case Overruled.</p> <p>West v. Burke, 60 Texas, 51, overruled. Racer v. State, 73 S. W., 968, approved. (Pp. 72, 73.)</p> <p>4. —Same—Stare Decisis.</p> <p>The rule of stare decisis need not be held to sustain a former erroneous decision where no injurious or unjust consequences will result from overruling it. (P. 73.)</p> <p>5. —Commissioners Court—Compensation of County Judge.</p> <p>An order of the Commissioners Court fixing the compensation of the county judge, made by three commissioners present, with the county judge present and presiding, but not taking part in the vote, was not invalid because of the interest of the county judge in the result. (P. 72.)</p>

Mrs. Leahy and others brought suit against Timón and others to set aside the probate of a will in the County Court. Defendants prevailed there, and on appeal in the District Court, and the judgment was affirmed by the Court of Civil Appeals (181 S. W., 520) whereupon appellants obtained writ of error.-

<p>1. —Land Certificate—Conveyance—Record of Title—Innocent Purchaser.</p> <p>A conveyance of a land certificate by one of the heirs of the original grantee recited a partition of his estate in the District Court between his heirs by which the certificate was allotted to the one so conveying, and this, after the location of the certificate, was recorded in the county where the land lay. Held, that the conveyance was such an instrument as the statute authorized to be recorded. The land having been patented subsequently to the heirs of the original grantee, a later purchaser from such heirs was charged by record with notice of the conveyance of the certificate and of the partition therein recited, and could not be protected as an innocent purchaser against those having title thereby. (Pp. 86-90.)</p> <p>2. —Same—Instruments Entitled to Record.</p> <p>Though the transfer of an unlocated certificate was one of personal property, it became, after the location of the certificate, a conveyance of and an instrument concerning that land, its legal effect being then to invest the purchaser with title to the land, and it was then entitled to record as such in the proper county under our registration statute; and when so recorded constituted constructive notice" of its contents to subsequent purchasers from the heirs after patent to them. (P. 87.)</p> <p>3. —Record of Title—Notice.</p> <p>A purchaser of land from the heirs of the original grantee, it being patented to. the heirs, is not entitled to look solely to the patent as the origin of his title. He is taxed with constructive notice of the rights acquired by transfer of the certificate by one of the heirs, as sole owner by decree of partition of the estate of the original grantee, where such transfer was duly recorded in the proper county after location of the certificate. (Pp. 87, 88.)</p> <p>4. —Same—Conveyance in Chain of Title.</p> <p>A purchaser from the patentees, heirs of the original grantee of a land certificate, was bound to take notice of a previous recorded conveyance of the certificate from one of such patentees as being a vendor under whom he claims title and for record of whose deeds he is bound to search. (Pp. 89, 90.)</p> <p>E.—Same—Recitals in Conveyance.</p> <p>Where a conveyance recited a decree of partition between heirs of an estate awarding grantor as one of them sole title to the land certificate conveyed, a subsequent purchaser from the heirs to whom the land had been afterward patented, being taxed with constructive notice of the recorded conveyance of the certificate, had thereby notice also of the partition decree therein recited, and could claim title as an innocent purchaser neither to the interest of the grantor as heir, nor to that as sole owner by virtue of the recited decree. (Pp. 89, 90.)</p> <p>6.—Cases Distinguished.</p> <p>Breen v. Morehead, 104 Texas, 254, and Wimberly v. Pabst,, 55 Texas, 587, distinguished from the present case. (P. 88.)</p>

<p>1.—Instructions to Juries—Exceptions—Peremptory Charge.</p> <p>The peremptory direction of a verdict by charge of the court was subject to challenge on appeal though not objected to on the trial before it was read to the jury. Walker v. Haley, ante, p. 50. (P. 93.)</p> <p>2.—Forfeiture—Ambiguous Contract.</p> <p>A provision in a contract for forfeiture of rights thereunder should be plain and clear. If ambiguous, that alone condemns it. See contract held so uncertain as not to support a forfeiture of rights under its terms, the meaning of which should not be left to the jury. Benavides v. Hunt, 79 Texas, 383, followed. (P. 94.)</p> <p>3—Supreme Court—Jurisdiction—Error Important to Jurisprudence of State.</p> <p>Article 1521, subd. 6, Rev. Stats., as amended by Ch. 75, Acts of 1917 (Act of March 15, 1917 Laws, 35th Leg. p. 140) confers jurisdiction on the Supreme Court in case of a ruling which constitutes “an error of law of such importance to the jurisprudence of the State as in the opinion of the Supreme Court requires correction,” thus limiting the jurisdiction formerly conferred, where the appellate court “has erroneously declared the substentative law of the case.” A ruling which would now confer jurisdiction must constitute a serious departure from the established law or introduce a doctrine violative of fundamental principles. (Pp. 95, 96.)</p> <p>it.—Same.</p> <p>A ruling by the appellate court that the evidence was such as to warrant the submission of a given issue to the jury, or one that there was no evidence to warrant such submission, could not be regarded as one of such importance to the jurisprudence of the State as to require correction, within the meaning of amended article 1521, subd. 6, unless flagrantly wrong. See rulings on sufficiency of evidence to demand submission of the issue of forfeiture held, if erroneous at all, not so clearly wrong as to justify the Supreme Court in assuming jurisdiction to correct them. (Hawkins, J., dissents). (P. 96.)</p> <p>S,—Dissenting Opinion.</p> <p>Mr. Justice Hawkins, concurring otherwise in the rulings of the majority, is of opinion that an erroneous ruling by a Court of Civil Appeals that a given issue is, or is not, supported by some evidence, and accordingly should, or should not, have been submitted to the jury, should be treated by the Supreme Court as being, in and of itself, of such importance to the jurisprudence of the State as to require correction. (Pp. 96, 97.)</p>

Monroe sued the Railroad Co. and recovered judgment which was affirmed on defendant’s appeal (155 S. W., 973). Thereupon appellant obtained writ of error. The case was referred to the Commission of Appeals, Section B, and by them recommended for reversal; but the opinion was afterwards withdrawn and the case set for submission in the Supreme Court.

This suit was. brought against the Railway Co. by Bell and wife for injuries received by the latter while a passenger on defendant’s train. The plaintiffs recovered and the judgment was affirmed on appeal by defendant, who thereupon obtained writ of error. The case was referred to the Commission of Appeals, Section B, where an opinion was pronounced recommending affirmance; but this opinion was afterwards withdrawn and the ease set down for hearing in the Supreme Court.

Watts sued the railway company for causing his death and recovered judgment. Defendant appealed and on affirmance (173 S. W., 909) obtained writ of error. The case was referred to the Commission of appeals, hut was afterwards withdrawn by order of the Supreme Court and there submitted and decided.

Original application by Matthaei and others to the Supreme Court for writ of mandamus against Clark, as District Judge, and Charles 0. Austin, as Commissioner of Insurance and Banking. H. M. Richey answered as successor in office to Judge Clark.

Action by the State against the Galveston, Harrisburg & San ■ Antonio Railway Company. There was a judgment for the State, which was affirmed in. the Court of Civil Appeals (194 S. W. 462), and defendant brings error.

<p>1. —Administrator—Withdrawing Estate from Administration—Appeal—Bond.</p> <p>An administratrix was entitled to appeal without bond from a judgment withdrawing the estate from administration on application of the guardian of the estates of the sole heirs. Such appeal was in her fiduciary capacity. (P. 144).</p> <p>2. —Same—Pleading.</p> <p>Pleadings by an administratrix, in reply to an application made as guardian of the estates of the heirs (minors) to withdraw the estate from administration, which showed unfinished business (pending law-suits) making its continuance proper, and also invalidity of the alleged appointment of the guardian disentitling him to receive the estate, presented issues making resistance to the application a duty of the administratrix as such, and not assertion of a mere personal interest. (P. 144).</p> <p>3. —Guardian—Appointment—Appeal—Judgment Record.</p> <p>A guardian for estates of minors was appointed in the County Court, and the application of another refused. The latter appealed and in the District Court the entry on the docket denied her application for guardianship and confirmed the appointment made by the County Court. But the judgment as entered on the minutes showed only the refusal of letters to appellant, and not appointment or confirmation of appellee as guardian. In another proceeding brought by such appellee as guardian and where the validity of his appointment was attacked, it is held that such appointment was vacated by appeal to the District Court; that absolute verity attached to the Judgment of the District Court as it appeared on the minutes, and it could not be varied or controlled by the docket entry unless and until that court should correct its minutes. Till this was done the County Court appointment stood suspended by the appeal. (Pp. 144, 145).</p> <p>4. —Withdrawal from Administration—Jurisdiction—Pleading.</p> <p>The County Court was not without jurisdiction of an application by the guardian of the estates of minor heirs to withdraw the estate of decedent from administration, though such guardian, by mistake, described himself in the application as guardian of the persons. (P. 145).</p> <p>6.—Probate Court—Appeal—Amendment.</p> <p>On appeal from the County to the District Court in a probate matter, the latter court, the trial being de novo, may permit any amendment of the pleadings which would be admissible had the case been one commenced in the District Court. (P. 145).</p>

Byrd sued Shumaker and others and recovered judgment. Defendants appealed and on affirmance (203 S. W., 461) obtained writ of error.

Though keeping on the docket the title given above, this case came to the Supreme Court on writ of error obtained by the Lion Bonding 6 Surety Co., on a judgment of the Court of Civil Appeals reforming and affirming the judgment of the trial court. The contest, both here and on appeal, being between plaintiff in error and the First Natl.

The action was commenced by the Sherwin-Williams Paint Co. against Wilson, the builder, and the Alex. Watson Const. Co. the contractor, to establish a lien for materials furnished for building. By amendment the Sherwin-Williams Co. of Texas, a local corporation became substituted as plaintiff. Personal judgment was recovered against both defendants with'foreclosure of the lien. They appealed and on affirmance obtained writ of error.

Interpleader by the Watson Company against A. A. Grees, the Ogburn Gravel Company, and others. On writ of error by the Ogburn Gravel Company and others, the Court of Civil Appeals (190 S. W. 205) in part reverséd and rendered judgment fixing the rights of the parties, and the Watson Company and others bring error.

<p>Mechanics' Lien—Contractor—Sub-Contractor.</p> <p>The rulings in Wilson v. Sherwin Williams Co., ante, p. 156, are followed and held to determine the disposition of this case. (P. 162).</p>

' The suit was originally brought by Lyon-Gray Lumber Co. against John T. Finn and the First Natl. Bk. of Paris, to enforce a lien for material furnished Finn who had contracted to erect a building for the bank. Other claimants of liens: H. S. Bettes Hdw. Co; Christopher & Simpson Iron Works Co; W. F. Dulaney & Sons; Ingram Millwork Co.; Atlanta Terra Cotta Co.; Electric Appliance Co.; Gilbert Mfg.

<p>Error to the Court of Civil Appeals for the Sixth District, in an appeal from Lamar County..</p> <p>Lecouteur Brothers Stair Manufacturing Company was made a party by the Bank in the suit by the Lyon-Gray Lumber Company and others against the First National Bank of Paris and others, as claimant of a mechanics’ lien. Being denied a recovery, it joined with various other parties in an appeal which resulted in the affirmance of the judgment against it. First Natl. Bk. of Paris v. Lyon-Gray Lumb. Co., 194 S. W., 1146. This appellant thereupon obtained writ of error, which appears to have been docketed separately, while the writs obtained by various other parties were disposed of in the case entitled First Natl. Bk. of Paris v. Lyon-Gray Lumb. Co., the opinion next preceding this, which is here followed.</p>

The suit was by Lasater and others, tax-payers of Duval County against Lopez, county treasurer, the county judge and commissioners, and White, the holder of certain county warrants, which it sought to have declared invalid and their payment restrained. The venue was changed from Duval to Jim Wells County, where trial resulted in judgment for defendants. This on plaintiffs’ appeal was affirmed and they obtained writ of error.

Mrs. Kirksey obtained judgment against the Southern Traction Co. for causing by negligence the death of her husband. Defendant appealed and judgment was reversed and rendered in its favor. Mrs. Kirksey thereupon obtained writ of error.

Shipley sued the Railway Company for injury to his wife as a passenger and prosecuted error from a judgment for defendant. On its affirmance (198 S. W., 661) he obtained writ of error from the Supreme Court.

<p>1. —Sheriff—Allowance for Ex-Officio Services.</p> <p>The allowance permitted to be made by the Commissioner’s Court to the sheriff for ex-officio services is limited, in a county of less than 25000 population, to the sum of $500 annually (Rev. Stats. 1911, art. 3866; Act of April, 1905, Laws, 29th Leg., ch. 65, p. 91). This limitation was not abrogated by the Act of April 3, 1913, Laws, 33d Leg., p. 246, ch. 12.1 (amending art. 3893, Rev. Stats., 1911) which restricted, rather than broadened the powers of the Commissioner’s Court in this respect. (Pp. 200-203).</p> <p>2. —Same.</p> <p>.The allowance by the Commissioner’s Court of Kinney County (4000 population) of $1620 annually as compensation to the sheriff for ex-officio services, made Dec. 28, 1917, was invalid as to its excess over $500, the limit of their power to make such allowance. (P. 203).</p> <p>3. —County Attorney—Allowance for Ex-Officio Services.</p> <p>Article 3893, Rev. Stats, 1911, as amended by Act of April 13, 1913 (Laws, 33d Leg., p. 246, ch. 121) grants power to Commissioner’s Courts to allow compensation to County Attorneys for ex-officio services, limited only by the requirement that it do not increase the compensation of that officer beyond the maximum provided and the operation of other subsisting laws. An allowance of $720 annually to the county attorney of Kinney County for such services, made by the Commissioner’s Court in December, 1917, was, if such maximum was not thereby exceeded, -warranted by such statute. P. 203).</p> <p>4. —Fees of Office—Constitutional Law.</p> <p>The Constitution, in providing that county attorneys shall receive “only such fees, commissions and perquisites as may be prescribed by law,” does not prohibit the Legislature from authorizing the Commissioner’s Court to grant him compensation for ex-officio services rendered the county. The word “fees” as here used, means, “the reward, compensation or wages” allowed them by law in return for their services, and is broad enough to warrant such legislation. (P. 203).</p>

, The State sued Hunt to foreclose a lien on land for delinquent taxes. Defendant had judgment which on appeal by the State was reversed and remanded (207 S. W., 636). Hunt thereupon obtained writ of error, the decision settling the case and involving construction of a statute.

Proceeding to probate the will of J. T. Crawford, hy J. S. Perdue, contested by Queen A. Perdue and others. From an adverse judgment, proponent appealed to the Court of Civil Appeals, which affirmed (208 S.' W. 353), and proponent brings error.

<p>Supreme Court—Jurisdiction—Boundary.</p> <p>An action lor the recovery of land and to restrain defendant from interfering with plaintiff’s possession, when the rights of the parties depend on the location of a disputed boundary line, is not within the jurisdiction on the Supreme Court by writ of error. (Pp. 212, 213).</p>

Action by Mrs. Allen, as administratrix of T. 0. Allen, to recover for his death while engaged in interstate commerce in the service of defendants, J. L. Lancaster and Pearl Wight, Receivers of the Texas & Pac. Ry. Plaintiff had judgment which was affirmed on appeal by defendants (207 S. W., 984), and thereupon they obtained writ of error.

Henry sued the Lumber Co. and had judgment which on defendant’s appeal was reversed and rendered in its favor, 178 S. W., 23. Henry thereupon obtained writ of error. The ease was referred to the Commission of Appeals Division A, by whom, on opinion of Judge Strong, it was recommended that it be reversed and the judgment of the District Court affirmed, 215 S. W., 451.

Beatty sued the Lumber Company and recovered judgment which was affirmed (204 S. W., 448) on appeal by defendant, who thereupon obtained writ of error.

Dickson sued J. S. Simmons, J. E. Boyd, F. B. Williams, and others, for slander and libel. There was a peremptory instruction to find for defendants, and verdict and judgment accordingly. Plaintiff appealed and the judgment, as to the defendants named, was reversed and remanded, 170 S. W., 834. They thereupon obtained writ of error.

Ablon sued the Express & Baggage Company, and on his appeal from a judgment for defendant secured a reversal and remand. The defendant company obtained writ of error because of conflict in decisions.

<p>1. —Actions Against Railways—¡War Powers of Director General.</p> <p>General orders No. 18 and No. 18a. issued by the Director-General of Railways' of the United States and prescribing where suits against carriers under his control should be brought, was in excess of his power and invalid, being contrary to sec. 10’ of the Act of Congress of March 21, 1918, providing that such actions might still be brought and judgments rendered “as now provided by law.” A suit brought in the proper forum as so provided could not be abated because its venue was other than that so prescribed by the Director-General. (Pp. 247-249).</p> <p>2. —Same—Continuance—Prejudicing Interests of Government.</p> <p>Application for continuance of a suit against a railway during the period of federal control was made under General Order No. 26, by the Director-General of Railways commanding such continuance “upon a showing . . . that the just interests of the government would be prejudiced by a present trial,” such prejudice being sought to be shown from the fact that the attendance oí three witnesses from another state engaged in transportation of war materials and troops would be required. Held that', if such order was within the power of the Director-General, the determination of the sufficiency of the showing of prejudice was within the discretion of the trial court, which did not here appear to have been abused by refusal of the continuance. (Pp. 249, 250).</p> <p>S.—Case Approved.</p> <p>The rulings of the Court of Civil Appeals in this case on errors assigned upon the charge of the Court (El Paso & S. W. Ry. Co. v. Lovick, 210 S. W., 283) are approved. (P. 250).</p>

Mrs. Suitor, joined by her children, sued the Railway Company for damages for the death of her husband. She recovered, and the judgment was affirmed on appeal by defendant (153 S. W., 185) who then obtained writ of error.

Charles Schauer sued Otto Schauer for recovery of land. The judgment of the District Court denying a recovery to plaintiff was affirmed on his appeal (202 S. W., 1010) and he then obtained writ of error.

Mrs. Bennett, as administratrix, and also in her own right as widow and on behalf of their minor children, sued the Railway Co. for damages by death of H. C. Bennett, an employee, by alleged negligence of defendant. The defendant company had judgment as directed by a peremptory charge. Plaintiff appealed and secured a reversal (Bennett, Admrx. v. Gulf, C. & S. F. Ry. Co., 159 S. W., 132). The Company thereupon obtained writ of error.

<p>1. —Negotiable Note—Vendor’s Lien—Innocent Purchaser.</p> <p>The assignee of a negotiable note secured by a vendor’s lien, if an innocent purchaser before maturity, becomes in substance, a mortgagee, and is protected, both as to the debt evidenced by the note and the security for its enforcement, against defenses which might otherwise defeat a foreclosure. (Pp. 275-277).</p> <p>2. —Same—Lis Pendens.</p> <p>The doctrine of Us pendens does not apply to negotiable instruments; an innocent purchaser of a vendor’s lien note is not charged constructively with notice of a pending suit to set aside a former sale of the land for fraud, (Pp. 275-277).</p> <p>3. —Same—Statute.</p> <p>The Act of April, 1905, Laws, 29th. Leg., Ch. 128, p. 316, providing for recording notices of Us pendens, does not enlarge, but limits, the effect of such pending suit as notice to an innocent purchaser of negotiable paper, affecting the title to the land on which it is secured. (P. 278).</p> <p>4. —Innocent Purchaser—Transfer of Note—Injunction.</p> <p>The way to prevent the circulation of negotiable instruments pending a litigation affecting them is to require same to be delivered into the custody of the court. The innocent purchaser cannot be affected by an injunction against the holder forbidding transfer. (P. 276).</p> <p>5. —Innocent Purchaser—Presumption of Good Faith—Payment of Value.</p> <p>A purchaser of a promissory note for value and before maturity, in the absence of facts charging him with notice that land on which it was secured was obtained by fraud, need not introduce further evidence of good faith to entitle him to protection, the burden of proof being then on the one seeking to defeat it. But, if the evidence as to payment of value leaves that in question, nis protection as an innocent purchaser becomes a question of fact for the jury. (Pp. 279, 28G).</p> <p>6. —Jury—Uncontradicted Evidence.</p> <p>A plaintiff’s claim to hold a note as an innocent purchaser cannot be held established as matter of law because evidence to that effect was uncontradicted. The jury having the right to pass on the credibility of a ■witness may disregard his evidence if they believe it untrue from his manner of testifying, prejudice, or interest in the result, though neither impeached nor contradicted. (P. 280).</p> <p>7.—Contradictory Charges.</p> <p>fn an action for forclosure a charge that such relief could not be had if title to the land incumbered by the note and lien which plaintiff claimed to hold as an innocent purchaser was obtained by fraud was erroneous, and this error was not cured by a later and contradictory paragraph of the charge permitting foreclosure if plaintiff was an innocent purchaser. (P. 280).</p>

Brass sued the Railway Co. and recovered judgment. On defendant ’s appeal this was reversed and rendered in his favor. 175 S. W., 778. The Supreme Court add a brief opinion in approving that of the Commission of Appeals, to whom the case had been referred, and adopting the disposition of the case there recommended. Both opinions are published.

Walker sued the Railway Company for personal injuries, and, in the alternative, for unpaid notes given by Hipp in settlement thereof, alleged to have been accepted because of defendant’s representations that issue, there have been numerous irreconcilable conflicts be-of Hipp’s solvency.

<p>Original application by Mrs. Landry to the Supreme Court for writ of mandamus against Robison and others.</p>

Baker and another sued Fogle and others for the recovery of land, to which defendant Fogle asserted title by limitation in a cross action. Each had judgment for an undivided half thereof. Both parties appealed. The judgment was reversed and appellant Fogle awarded recovery of the entire land. 205 S. W., 752. Baker and his co-plaintiff procured writ of error from the Supreme Court.

The action was trespass to try title, brought by Simmons and others against Arnim and others, who claimed the land by sale under execution against plaintiffs during their minority. Defendants prevailed, and on appeal by plaintiffs the judgment - was affirmed. 472 S. W., 184. They then obtained writ of error.

<p>Original application to the Supreme Court for writ of habeas corpus.</p> <p>Taylor was committed to custody by the District Court of Dallas County, for contempt in refusing to appear before a notary and give testimony by desposition on a commission issued by a Circuit Court of Illinois in a case pending before it.</p>

<p>Original application of Tucker to the Supreme Court for writ of habeas corpus.</p>

Linden sued Bexar County and recovered judgment. On appeal by the County this was reformed and affirmed, 205 S. W., 478. Thereupon Bexar County obtained writ of error.

<p>1. —Constitutional Law—Term of Office.</p> <p>The Legislature is without power to abolish Constitutional offices or to shorten terms of office which are fixed by the Constitution. But the mere mention of an office or its term in the Constitution lacks much of creating an office or prescribing the duration for which it is to be held. (P. 352).</p> <p>2. —Same—Managers of Insane Asylum—State Board of Control.</p> <p>Section 30a of article 16, of the State Constitution (amendment of 1912) in empowering the Legislature to provide terms of office of six years for the managers of certain state institutions did not, after the Legislature had so acted, fix the tenure of office of such boards of managers beyond the power of the Legislature to alter or shorten. The Act of April 5, 1919, Lews, 36th Leg., p. 323, ci eating the State Board of Control, abolishing the offices and duties of the existing boards of managers of various State intitutions, including asylums for the insane, and providing for the adminstration thereof by the State Board of Control, was not unconstitutional because interfering with the office, duties, and terms of office of the Board of Managers of the Southwestern Insane Asylum. The latter being created and their terms of office fixed by the Legislature, it had power to abolish or alter same. (Pp. 352-355).</p>

<p>T.—Account Stated—Mistake—Contract—Estoppel.</p> <p>An account stated constitutes primo facie evidence of the indebtedness which it acknowledges; but it does not constitute an estoppel nor a written contract, unless it be a settlement in which mutual compromises ar. made; and therefore its prima facie effect may be overcome by proof of mistakes or omissions and the mistake need not, as in the case of a contract, be a mutual one to entitle it to correction. (Pp. 357—359).</p> <p>2.—Cases Reviewed.</p> <p>Horan v. Long, 11 Texas, 231, and Houston E. & W. T. Ry. Co. v. Snelling, 59 Texas, 116, reviewed and distinguished. Neyland v. Neyland, 19 Texas, 423, followed. (Pp. 357, 358).</p> <p>Questions certified from the Court of Civil Appeals for the Second District, in an appeal from Palo Pinto County.</p>

Sullivan sued the Railway Co. for damages for personal injury and recovered judgment for $8400. On defendant’s appeal this was reversed and remanded for error in excluding from evidence offered by defendant the letter referred to in the opinion. 157 S. W., 193. Plaintiff obtained writ of error on the ground of conflict of rulings between Courts of Civil Appeals.

The Bank sued Hughes on a judgment obtained in the United States court in Colorado. Defendant had judgment which was affirmed (154 S. W., 1181) on appeal by plaintiff, who thereupon obtained writ of error.

Certified Question from Court of Civil Appeals of First Supreme Judicial District. Mandamus proceedings by Mrs. Alma Koy against William Schneidér, Tax Collector. From an order sustaining a general demurrer .to the petition, the petitioner appealed to the Court of Civil Appeals of the First Supreme Judicial District, which certified a question to the Supreme Court.

Original proceeding in the Supreme Court by Fitzgerald and others against Robison and others for writ of mandamus to require the latter, as Commissioner of the General Land Office, to issue to relators a permit to prospect for oil and natural gas on certain lands alleged to have been unlawfully patented and to be the property of the State: Motion for leave to relators to file petition, and for written opinion following a refusal per curiam of such leave.

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

Questions certified from the court of Civil Appeals for the Fifth District, in an appeal from Dallas County. . The appeal of Sergeant as receiver from a judgment sustaining a demurrer to his petition resulted in a reversal and remand by the Court of Civil Appeals, 159 S. W., 1036.' On motion for a new trial and to certify the questions to the Supreme Court the latter motion was granted, the former being held undetermined to await the answers of the Supreme Court.

Lee sued the El Paso Elec. By. Co. for personal injuries and obtained judgment from which defendant appealed. It was affirmed (157 S. W., 748) the court declining to consider various assignments of error by appellant, who thereupon obtained writ of error.

Mrs. Walters sued the Southern Pacific Co., as administratrix of the estate of her husband, to recover damages for his death by defendant ’s negligence. She recovered judgment which was affirmed on defendant’s appeal, 157 S. W., 753. The company thereupon obtained writ of error.

<p>1. —Penal Law—Repeal—Liquor Dealer’s Bond.</p> <p>There is no vested or contractual right in the State for the recovery of penalties denounced by its statutes, such as those recoverable under article 7452, Rev. Stats., 1911, for violation of the conditions of his bond by a retail liquor dealer, and a repeal of the law providing therefor terminates the right of action for penalties previously incurred unless such action is preserved by the terms of the repealing Act. (P. 501).</p> <p>2. —Same—Effect of Adopting Local Option.</p> <p>The effect of the adoption of prohibition of liquor sales in certain territory, whether it be regarded as a repeal or as a mere suspension of the general liquor license laws of the State within such territory, is to render such laws no longer in force there and to leave the State without further interest in the collection of penalties to secure their enforcement. Such adoption of prohibition deprives the State of the right to sue for and recover the statutory penalties for the violation of a liquor dealer’s bond incurred prior to the adoption of prohibition and while the license law under which such bond was given was in force there. (Pp. 502-505).</p>

<p>Negligence—Master and Servant—Peremptory Charge.</p> <p>An employee of a telephone company while engaged in repair work on its line used a platform suspended from a messenger wire carrying its cable and in attempting to descend by a hand line carrying a pully and suspended by a hook from the messenger wire, fell and was killed, the hook slipping off from the wire. The hook sustaining the pully and hand line, which was the usual sort furnished by the company for such line, had no safety catch. From these facts, without further proof of negligence on the part of defendant, it became a question of fact for the jury whether the failure to provide for this purpose a hook with a safety catch constituted negligence. A peremptory instruction to find for defendant was unwarranted. French v. Southwestern Tel. & Teleph. Co. 162 S. W., 406, approved. (Pp. 506-513).</p>

Steddum sued the Kirby Lumber Co. and the Houston Oil Co. - in trespass to try title. A peremptory instruction to find for defendants was given, with verdict and judgment accordingly. Plaintiff appealed and the judgment was affirmed. (154 S.. W., 273.) The case on writ of error being referred to the Commission of Appeals, Section B., it was by them recommended for reversal, in the opinion published herewith.

<p>Mortgage—Crop—Description.</p> <p>A chattel mortgage on property described as “any three hales of cotton to he planted and cultivated hy me in the year 1912, on the place known as the-farm-miles from R. or any other farm in C. county,” was void for want of certainty as to the property attempted to he mortgaged. Richardson v. Washington, 88 Texas, 339; McDavid v. Philips, 100 Texas, 73, followed. (Pp. 526-528).</p>

— Moseley and another sued the General Bonding & Casualty-Insurance Company and others and recovered judgment. Defendants prosecuted error to the Court of Civil Appeals, which affirmed the judgment, 174 S. W., 1031. Appellant thereupon obtained writ of error from the Supreme Court.

Question certified from the Court of Civil Appeals for the Eighth District, in an appeal from Harris County. The lessee, plaintiff below, was permitted to recover damages on the trial and the judgment was affirmed on appeal; but the question was certified to the Supreme Court because of a dissenting opinion. See 171 S. W., 774.

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

Question certified on dissent from the Court of Civil Appeals for the Eighth District, in an appeal from the District Court of Harris County. Crow recovered judgment against Bauer and another which was affirmed on defendant’s appeal. 171 S. W., 296. Motion for rehearing was overruled, with a dissenting opinion, and the point of dissent was thereupon certified to the Supreme Court.

<p>1.—Corporation—Ultra Vires Contract—Surety.</p> <p>A corporation chartered to deal in lumber and building materials and do all things incident and necessary to such business, has no implied power to become surety on a contractor’s bond for constructing a building, though such undertaking may promote its sales of building materials to the contractor. (Pp. 544-546).</p> <p>2.—Same.</p> <p>A corporation has implied power to do whatever will legitimately effect the express purposes of its creation; but not to enter into contracts from which it will receive only an indirect and remote benefit, and which are therefore not necessary nor reasonably appropriate to such purposes, such as pledging its credit to an expected customer in order to enable him to purchase its goods. (P. 545).</p> <p>3. —Estoppel—Pleading.</p> <p>To hold a corporation estopped from defending a suit upon its contract on the ground that it had received benefit therefrom, such estoppel must be pleaded. (P. 545).</p> <p>4, —Case Distinguished.</p> <p>The refusal by the Supreme Court of writ of error in Munoz v. Brassel, 108 S. W., 417, is explained on the ground that the ruling therein contrary to the decision here made was not involved in the application for writ of error made in that case. (P. 546).</p>

Question certified from the Court of Civil Appeals for the Second. District in an appeal from Clay County. The judgment of the trial court was reformed on defendant’s appeal, a dissenting opinion being filed. On motion to certify the question to the Supreme Court, the court, being doubtful of their right to do so, certified both that question and the question of proximate cause.

<p>1. —Certified Question.</p> <p>In cases where the decision of the Court of Civil Appeals is final the Supreme Court has no jurisdiction of a certificate of dissent; but the court may in such cases certify a question because deemed by it advisible, or because of conflict with other Courts of Civil Appeals. (P. 550).</p> <p>2. —Procedure—County—Court—Appeal from Justice Court.</p> <p>Where a case in the County Court was within the jurisdiction of a Justice Court and the record indicated that it had been first tried therein, but contained no transcript of the proceedings there had, the proper order ’ by the Court of Civil Appeals was, not to dismiss the appeal, but to reverse the judgment and remand to the County Court with direction to dismiss unless its jurisdiction was properly made to appear. (Pp. 549, 550).</p>

The State, through Davis as Commissioner of Agriculture, sued Stockwell to enjoin him from interfering with the destruction of a certain citrus hedge by the agents of the Department. The State had judgment and Stockwell, appealing, obtained writ of error on affirmance of the judgment, 203 S. W., 109.

<p>Error to the Court of Civil Appeals for the Seventh District, in an appeal from Floyd County.</p> <p>Mrs. Hutchison and others sued Massie for recovery of land and appealed from a judgment for defendant. On reversal (159 S. W., 319) Massie obtained writ of error.</p>

<p>1. —Attachment—Injury in Sheriff’s Custody.</p> <p>Plaintiff in attachment is not liable to defendant for injury to the attached property by the sheriff having its custody. The latter does not hold it as agent of the plaintiff and is no more under his direction in the matter of keeping it than under that of defendant. (Pp. 562, 563).</p> <p>2. —Same—To Whom Liable.</p> <p>The levy of an attachment does not operate as a satisfaction of plaintiff’s debt to the extent of the value of the property; it merely creates a lien till foreclosure and sale. Where by fault of the sheriff the property' is so damaged as to bring less on sale, the sheriff is liable to both for such damage, —to plaintiff to be applied on his claim till the debt is discharged, and then to defendant. (Pp. 562, 563).</p> <p>3.—Sale—Fraud—Pecuniary Injury—Rescission.</p> <p>Evidence here considered is held to support a finding that a sale obtained by fraud of the vendor occasioned such pecuniary injury to the purchaser as to support his right to rescission and recovery of the consideration paid, if proof of such injury should be held to te necessary for that relief, which is not decided. (P. 563). i</p>

Park sued Swartz and another for breach of contract and recovered judgment. Defendants appealed and secured a reversal, 159 S. W., 338. On dissent from this ruling by Chief Justice Conner, Park obtained writ of error.

Wells sued Buerger and Mrs. Mooney and had judgment, but appealed contesting an order quashing his writ of garnishment. This judgment was reversed and the cause remanded (157 S. W., 289) and Buerger obtained writ of error on the ground of conflicting decisions.

Mrs. Owens and others sued the Petroleum Co. Defendant had judgment and plaintiffs appealed. The judgment was reversed and the cause remanded (169 S. W., 192) whereupon the company obtained writ of error.

<p>1. —Civil Suit—Malicious Prosecution.</p> <p>Damages will not be awarded for the prosecution of civil suits with malice and, without probable cause unless the party sued suffers some interference by -eason of the suits with his person or property. Smith v. Adams, 27 Texas, 30; Salado College v. Davis, 47 Texas, 134; Johnson v. King, 64 Texas, 226, followed. (P. 574).</p> <p>2. —Same—Foreclosure—Seizure of Property.</p> <p>Actions to foreclose a chattel mortgage without seizure of any property do not constitute such interference with property as will support an action for damages, though such actions are malicious and unfounded. The imposition of costs is the only penalty which the law attaches thereto. (P. 575).</p> <p>3. —Same—Conspiracy.</p> <p>The joining of two or more persons to harass a defendant by malicious and unfounded suits will not render such prosecution actionable which would not be so if brought by one only. (P. 575).</p> <p>4. —Suit in Another’s Name.</p> <p>Procuring a malicious and unfounded suit to be brought in the name of another will not render such proceeding actionable where the' plaintiff so used is a responsible person and there is no evasion of the penalty of costs. (Pp. 575, 576). .</p>

<p>Error to the Court of Civil Appeals for the Seventh District in an appeal from. Deaf Smith County, 162 S. W., 152.</p>

Collins sued the Railway Co. and obtained judgment. Appeal by defendant resulted in reversal, 173 S. W., 250. Collins then obtained writ of error. The ease was referred by the Supreme Court to the Commission of Appeals, Section B. Their opinion, pronounced by Sadler, J., recommended reversal and affirmance of the judgment of the trial court, 212 S. W., 477, and this was made the judgment of the Supreme Court.

White sued the Railway Co. and had judgment which was affirmed on appeal. 160 S. W., 1128. Writ of error was obtained by appellant on the ground of conflict in the ruling made on the measure of damages with a decision of another Court of Civil Appeals.

<p>1. —Contempt—Amendment of Order.</p> <p>Though t! e district judge exceeded his authority by imposing a fine in excess of the amount permitted and in directing imprisonment by a verbal order, tin invalidity of these proceedings world not entitle the • party to discharge on habeas corpus where, before his applicat'on, they were remedied by a written judgment not in excess of the court’s power. (P. 589).</p> <p>2. —Contempt—Divorce—Injunction—Bond.</p> <p>The giving a bond is made a condition precedent to the issuance of an injunction (Rev. Stats. Art. 4654); and this applies to cases of injunction obtained by the wife in divorce proceedings under articles 4638, 4639, Rev. Stats. An injunction issued without bond in such case is void; and so, also, was a commitment of the husband for contempt in violating it; and he was entitled to discharge on habeas corpus. (P. 590).</p>

<p>1.—Cities—Bonds—Taxation—Charter of Ft. Worth.</p> <p>The charter of the City of Ft. Worth authorized levy of $1.75 on the $100 as taxes for general purposes “inclusive of the school tax that may he levied by the Board of Trustees, “and the Trustees were authorized to require a tax not exceeding 50 cents per $100, for school purposes. An amendment to the charter authorized an additional levy of 23 cents on $100., for school purposes, upon approval at an election by the qualified voters of the city, which approval was had. Held, that the city’s taxing power for general purposes ($1.75) was reduced to $1.25 by the 50 cent tax levied by the school board, but was not further reduced by the special school tax levied under the amendment by vote. The power to levy taxes at $1.25 for general purposes was intended as a permanent power for that purpose, and remained unaffected by the levy of the special school tax. (Pp. 593-596).</p> <p>2.—Cities—Bond. Issue—Qualified Voters.</p> <p>A city charter governing elections authorizing the issue of bonds permitted only qualified voters paying taxes on property in the city to vote thereat. In an election authorizing the issuance of bonds and the levy of a tax to meet them, requiring the approval of the “qualified voters” of the city, only tax-payers were such qualified voters under the charter and participation in the election was properly limited to them. (P. 596).</p>

Question certified from the Court of Civil Appeals for the Eighth District, -in an appeal from Reeves County. Hefner sued the Fidelity & Casualty Co. on a policy of accident insurance, and appealed from a judgment for defendant in accordance with a verdict directed by the court.

<p>ON APPLICATION FOB MANDAMUS.</p> <p>1. —Reversed Case—Application for Writ of Error—Time for Taking Out Mandate.</p> <p>In a case reversed and remanded by the Court of Civil Appeals and in which application for writ of error is made to the Supreme Court the twelve months from the date of reversal allowed appelles for taking out mandate by article 1559, Rev. Stats., runs from the date of refusal of writ of error by the Supreme Court, not from that of reversal by the Court of Civil Appeals. (Pp. 614, 615). -</p> <p>ON MOTION TO ENFORCE JUDGMENT.</p> <p>2. —Mandate—Inability to Pay Costs.</p> <p>An affidavit under article 1557, Rev. Stats., of inability to pay costs, made for the purpose of procuring issuance of mandate from the appellate court, was sworn to by all the parties except the husband of one, who was joined with her merely pro forma, and the wife’s affidavit showed inability of the husband, her own knowledge of the facts, and the husband’s inability to make the affidavit by reason of his being absent in the military service of the United States. Held, that the affidavit, in the absence of objection, was a sufficient compliance with the statute, and the mandate should have issued. (P. 616).</p> <p>3. —Same—Contesting Affidavit.</p> <p>An order of the Supreme Court directed that a mandate be issued by the Court of Civil Appeals within a time limited, on the filing of affidavit by the parties of inability to pay costs. Such affidavit having been filed, the mandate should have been issued within the time required, and it was too late thereafter for parties interested in the costs to contest its truth. (P. 617).</p> <p>Original Application to the Supreme Court for writ of mandamus, and subsequent motion in the Supreme Court to enforce a former order thereof requiring the Court of Civil Appeals to issue a mandate.</p> <p>Dignowity and others filed petition for mandajmus by the Supreme Court against the Judges of the Court of Civil Appeals for the Fourth Ilistrict, requiring the issuance of a mandate. The writ was granted in an opinion of the Supreme Court on March 16, 1919.-On June 28, 1919, the same relators filed a motion in the Supreme Court for the enforcement of its former order. The opinion thereon was rendered June 9, 1920. Both opinions are here reported.</p>

<p>1. Appeal and Error <®=»1191 — Issuance op Mandate — Time—Construction op Statute.</p> <p>The 12 months allowed by statute for taking out a mandate runs from the day of judgment of the Supreme Court, in a case reversed and remanded by the Court of Civil Appeals, in which a writ of error is denied, in view of Bev. St. 1911, art. 1559.</p> <p>2. Appeal and Error <S=o1191 — Issuance op Mandate — “Final Judgment.”</p> <p>The judgment of the Court of Civil Appeals is not the “final judgment” required by Bev. St. 1911, art. 1559, providing that in cases reversed by the Supreme Court or Court of Civil Appeals no mandate shall be taken out and filed in court where the cause originated, unless taken within 12 months after final judgment, since the appeal, with or without supersedeas, continues a suit, depriving the judgment of the finality necessary for admission in evidence.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Final Judgment.]</p>

<p>Supreme Court—Jurisdiction—Substantive Law—Evidence.</p> <p>Rulings relating purely to admissibility of testimony, where the case cannot be said to turn upon such testimony, do not present error in substantive law which would confer jurisdiction on the Supreme Court to grant writ of error. Browder v. Memphis Ind. Sch. Dist., 107 Texas, 535, followed. (P. 618).</p>

The City of San Antonio sued Spears and wife and appealed from a judgment in favor of defendant. The judgment was reversed and rendered against the wife, 206 S. W., 703, and appellees procured writ of error.

Atkins and others obtained temporary injunction restraining the City of Dallas and its officers from enforcing assessments against property of plaintiffs and their personal liability for costs of widening a street, under proceedings by virtue of the charter and ordinances of the city. Defendants appealed, and on affirmance (197 S. W., 593) obtained writ of error.