Volume 111 — Texas Reports

Application to the Supreme Court for writ of error to the Court of Civil Appeals for the Eighth District, in an appeal from Dawson County. Mrs. Johnson sued the telegraph company and recovered judgment for $1000. On defendant’s appeal the judgment was affirmed (218 S. W., 781) whereupon the appellant applied for a writ of .error, which was refused, the Supreme Court delivering thereon the opinion following.

Original application by Westerman and others to the Supreme Court for writ of mandamus against Mims as Secretary of State. On motion for leave to file the petition Mr. Chief Justice PHILLIPS dissented from the ruling per curiam, granting such motion, filing a written opinion thereon. On final hearing the writ of mandamus was refused in an opinion by Mb. Justice GREENWOOD.

<p>Application for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Mrs. Kate Robinson, joined by her husband, sued Margaret Fa-ville and another, seeking the cancellation of .a deed, the establishment of a trust, or damages. Judgment was rendered for the defendants on a demurrer sustained to the petition, and plaintiffs appealed. The judgment was reversed, holding the petition sufficient to establish a trust (203 S. W., 68). Appellees, defendants below, asserting a conflict of decisions, applied to the Supreme Court for writ of error, which is here refused.</p>

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

Burr and others sued Martin and others and recovered judgment. Defendants appealed, and on affirmance (171 S. W., 1044) obtained writ of error.

.Questions certified from the Court of Civil Appeals for the First District, in an appeal from the County Court of Harris County. The Insurance Company appealed from a judgment recovered against it by Mrs. Smalley and her husband; and questions arising therein were certified to the Supreme Court pending a motion for rehearing following an affirmance of the judgment.

Original application by Fox to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office. The application named as respondents, in addition to the Commissioner, T. M. Maes, and the Sun Company, as adverse claimants of permit to prospect for minerals on public land. The Sun Co. disclaimed interest.

Original application by Fox to the Supreme Court for writ of mandamus against Robison as Commissioner of the General Land Office, with whom T. M. Maes, J. B. Morrison, A. W. Perryman, L. H. Bailey, and the Hoffman Oil & Refining Corporation were joined as respondents.

<p>1. — Board of Water Engineers — Judicial Bower.</p> <p>The Act of March 19, 1917, sections 105-132 (Laws, 35th Leg., ch. 88, pp. 225-242) undertakes to empower the Board of Water Engineers to adjudicate vested water rights and to give the same effect to the Board’s determinations, when not appealed from, as is given to judgments of courts of competent jurisdiction. (P. 90).</p> <p>2. —Same—Statute Adopted From Another State.</p> <p>The statutes comprising our revised Irrigation Law (Act of March 19, 1917) were taken from those of Wyoming and Nebraska where they had previously been held by the courts of those States to make the determination of the boards created thereunder as to the right to use water in those States equivalent in effect to judicial decrees. And the Legislature of Texas, in adopting them, is presumed to have been familiar with such decisions and to have intended the statutes adopted by them to be given the same construction and effect. (Pp. 90, 91).</p> <p>3. —Constitutional Law — Departments of Government — Distribution of Powers.</p> <p>The Constitution divides the powers of government of the State into three distinct departments, legislative, executive, and judicial, each confided to a separate body of magistracy and forbidden to exercise any power properly attached to either of the others (Const. Art. 2, Sec. 1). The entire judicial power of the State is vested wholly in its courts (Const. Art. 5, Sec. 1). (Pp. 91, 92).</p> <p>4. —Board of Water Engineers.</p> <p>The Board of Water Engineers of the State of Texas, created under the Act of March 19, 1917, are executive officers clothed with administrative powers and can not be classified as belonging to the Judicial Department of the State. (P. 91).</p> <p>5. —Riparian Owners — Irrigation—Vested Rights.</p> <p>Riparian proprietors had, prior to the enactment of the statute under which the Board of Water Engineers was created, vested rights in the use of the waters of the stream for irrigation, for power, etc., subject to the superior rights of others and to reasonable use with reference to other’s, rights (Watkins Land Co. v. Clements, 98 Texas, 585). And this was a property right of which the proprietor could not be deprived, even for the public benefit, without adequate compensation (McGhee Irrig. Ditch Co. v. Hudson, 85 Texas, 593). (P. 92).</p> <p>6. —Same—Constitutional Law.</p> <p>No power is more properly or certainly attached to the Judicial Department than that which determines controverted rights to property by means of binding judgments. The statute which confers on the Board of Water Engineers, an administrative body, authority to determine cases pending in court between litigants, involving property, as well as such future controversies as, but for the Act, would have to be adjudicated by the courts, was void because in contravention of the Constitution. (Pp. 92, 93).</p> <p>7. —Same—Review by the Courts.</p> <p>The Constitution makes no exception, in its prohibition of the exercise of judicial powers by the Executive Department, of cases in which its determinations may be reviewed by the courts, and such exercise remains unlawful though the statute provides for appeal from such tribunal to the courts. (Pp. 93, 94).</p> <p>8. —Same—Preservation of Vested Rights.</p> <p>The statute giving the Board of Water Engineers judicial authority is not rendered valid by the provision that their determination shall not affect or destroy vested rights. If such rights remain unaffected the Board’s orders remain mere nullities, and ought not to be allowed to cloud the title of the holder of such rights. (P. 94).</p> <p>9. —Case and Statute Distinguished.</p> <p>The holding in Pacific Live Stock Co. v. Oregon Water Co., 241 U. S., 440, sustaining the Oregon Irrigation law, is distinguished as involving no judicial action by a board, its findings there being merely an advisory report, upon which a final determination is made by a court. (Pp. 94, 95).</p> <p>10. —Constitutions Distinguished.</p> <p>The rulings of the courts of Wyoming "and Nebraska, sustaining the constitutionality of irrigation laws similar to that of Texas, distinguished by the difference in the terms of their State Constitutions from that of Texas. (P. 95).</p> <p>11. —Cases Distinguished.</p> <p>Middleton v. Texas Power & Light Co., 108 Texas, 96, and Baldacchi v. Goodlet, 145 S. W., 325, discussed and distinguished from the present case. (Pp. 95, 96).</p>

Padgitt and others obtained writ of error on the affirmance on their appeal (204 S. W., 1046) of a judgment recovered against them by Young County.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Taylor County.</p> <p>The Abilene Ind. Telephone & Telegraph Co. brought suit for injunction restraining the' enforcement by execution against it of a judgment by default recovered by Williams, in which it was improperly described as the Abilene Ind. Telephone Co., defendant. Yerdict and judgment was for plaintiff under a peremptory instruction to find in its favor. Defendants appealed and the judgment was reversed and rendered in their favor, denying the injunction sought (168 S. W., 402). Appellee, the company, then obtained writ of error.</p>

<p>Constitutional Law — Pool Booms — Case Followed.</p> <p>The ruling in Ex parte Mitchell, 109 Texas, 11, holding the Local Option Pool Hall Law unconstitutional, is followed and held to control this case. (Pp. 107, 108).</p>

<p>1. —Municipal Lands — Taxation.</p> <p>Land belonging to the municipality of San Felipe de Austin, a remnant of five leagues granted that town by the Mexican Government, in 1824 for the use of its inhabitants as timber and grazing land, confirmed to, such corporation by legislation of the Republic of Texas, and still used for the same purposes by the inhabitants, now about 100 in number, is not subject to taxation. (Pp. 109-111).</p> <p>2. —Same—Public Use.</p> <p>Grants of land by Spain or Mexico, to municipalities, for the common use of their inhabitants for timber or grazing land, were for a public use then recognized by law and the habits of the people, and the use, while continued for such purposes, remains an exclusively public one, within the meaning of the constitutional exemption from taxation. It is not necessary that the property be used for govermental purposes. (Pp. 110, 111).</p>

<p>1. —Insurance—Foreign Corporation — Deposit of Securities.</p> <p>It is within the power of the State to prescribe the conditions on which a foreign corporation may pursue business within its borders. It therefore may require of a foreign insurance company a special deposit of securities as a trust fund for the protection of its obligations arising under its policies issued within the State. (Pp. 119, 120).</p> <p>2. —Same—Constitutional Law.</p> <p>The enforcement of the law of Texas by appropriating the securities required to be deposited in the State by a foreign insurance company to the protection of creditors therein would not be unconstitutional as a refusal to give full faith and credit to the laws of the State of its creation, which vested title to its assets, for the benefit of its creditors generally, in a liquidator under the laws of such State, in case of its insolvency. Such laws, having no extraterritorial effect, they could not prevail here over the valid laws of the State of Texas on the same subject. (P. 120).</p> <p>3. —Insurance—Foreign Corporation — Deposit of Securities.</p> <p>Though article 4930, Revised Statutes, (providing for a deposit of securities by a foreign fidelity or guaranty company for the benefit of “the holders of its obligations”), does not restrict such benefit to the holders of policies to be issued by it in Texas, other articles of the statutes (4935, 4932) make it reasonably clear that such was the intention of the Legislature. Morrell v. Colonial Security Co., 101 Texas, 309,. distinguished. The right of such Texas creditors in such securities was superior to that of a Liquidator appointed under the laws of the State creating such corporation. (Pp. 120, 121).</p> <p>4. —Same—Equity—Receiver.</p> <p>The law making no provision for the State Treasurer converting into money the securities deposited with him, under articles 4930, Revised Statutes, by a foreign fidelity and guaranty company for the protection of its Texas creditors, nor for its distribution by him in case of numerous claimants, it was within the power of a court of equity, at suit of a Texas creditor of the insolvent corporation, to appoint a receiver to take possession of, to convert, and to distribute the proceeds of, such securities for their benefit. (P. 121).</p> <p>5. —Certified Question.</p> <p>On certified questions the Supreme Court cannot consider or pass on a question of fact not raised by the certificate (here the sufficiency of notice required by the court for intervention in a receivership). (P. 122).</p>

Bridgewater was denied recovery against the administrator and heirs of Davis in the trial court. On his appeal this was reversed and rendered in his favor. Bridgewater v. Hooks, 159 S. W., 1004. Appellees then obtained writ of error.

Questions certified from the Court of Civil Appeals for the Ninth District, in an appeal from Jasper County. Chapman sued Dearman and wife to restrain their cutting and removing timber upon a tract of land, in which they had conveyed the timber rights to plaintiff. The trial court denied the injunction, and 'the judgment, on plaintiff’s appeal, was reversed and rendered in Ms favor (181 S. W., 808).

<p>1. —City—Independent School District — Bonds.</p> <p>A city incorporated under the general law and which has also become an independent school district, of the same territorial limits, hv assuming control of its public schools (Const. Art. 11, Sec. 10; Rev. Stats., Art. 2871) has thereby conferred on it a dual character and distinct dual powers of taxation, those for strictly municipal purposes, and those as an independent school district. Those possessed in the latter capacity were governed by Article 3, Section 7, of the Constitution, which, in 1918, were by the concluding clause of such section relieved from the limitation as to taxation imposed upon independent school districts otherwise constituted. (P. 139-).</p> <p>2. —Same—Statute.</p> <p>The amendment of Article 925, Revised Statutes, by the Act of October 10, 1917 (Laws, 35th Leg., 2d Called Session, ch. 14), authorized cities constituting independent school districts to levy taxes for the support of public schools, erection of school buildings, etc., by public vote under chapter 169 of the acts.of the 35th Legislature. Article 2874, Revised Statutes, giving them power, in general terms, to provide for building sites and buildings for public schools, without limitation as to the way in which provision is to be made, includes the power to issue bonds for such purpose where the taxes for their payment are and can lawfully be imposed. (Pp. 139, 140).</p> <p>3. —Same—Statute Unconstitutional in Part.</p> <p>The fact that the statute (Art. 925, Rev. Stats., as amended by the Act of October 10, 1917) may not be constitutional as applied to independent school districts composing an incorporated city and additional territory, as well (Snyder v. Baird Independent School District, 102 Texas, 4), will not render it invalid in its application to such district having the same territorial limits as the incorporated city. (P. 140).</p> <p>4. —Cities—Independent School Districts.</p> <p>The power of an independent School district created by an incorporated city assuming control of its public schools, the limits of a city and district being the same, to tax and issue bonds for providing school buildings is not limited by Article 8, Section 9, of the Constitution, which applies only to its powers for strictly municipal purposes. (P. 140).</p>

Nelson and others sued the Southern Surety Company and others and recovered judgment from which defendants ■ appealed. Appellees filed a cross assignment under which the recovery, which was affirmed, was increased by the imposition of a penalty of 12 per cent. Appellants thereupon obtained writ of error.

Original application to the Supreme Court for writ of mandamus requiring the Court of Civil Appeals for the Sixth District to certify to them on the ground of conflict of its rulings in the ease of Braumiller v. Burke, 173 S. W., 609, with previous rulings of courts of Civil Appeals, the ease in which such conflict arises.

Questions certified from the Court of Civil Appeals for the Second District, in an appeal from Tarrant County. Mrs. Tabor sued the Insurance Company and recovered judgment which was affirmed on appeal with dissenting opinion. The questions involved were thereupon certified to the Supreme Court.

Questions certified from the Court of Civil Appeals for the Second District, in an appeal from Wise County. The railway company appealed from a judgment recovered against it by Prunty. Two of the appellate judges being for reversal and one dissenting, the point was certified to the Supreme Court.

<p>1. —Appeal—Jurisdiction—Amendment.</p> <p>The jurisdiction of the County Court on appeal attaches only to a suit of which the Justice Court had jurisdiction, and if it had none the defect cannot be cured by amendment in the County Court bringing the amount in controversy to one over which the Justice Court had jurisdiction. (P. 166).</p> <p>2. —Same—Case Stated.</p> <p>An action in Justice Court was to recover wages and to foreclose a laborer’s lien on property of value exceeding $200. On appeal to the County Court plaintiff abandoned his action for foreclosure and sought to recover only the wages, which amounted to less than $200. Held that the want of jurisdiction in the Justice Court could not be remedied by such abandonment on appeal. Cotulla v. Goggan & Bro., 77 Texas, 32, followed. (P. 167).</p> <p>3. —Jurisdiction—Foreclosure—Amount—Cases. Discussed.</p> <p>Where a statutory lien is given upon property sufficient in amount only to satisfy the indebtedness, as in case of a landlord’s lien, and the indebtedness is for less than $200, the Justice Court has jurisdiction to foreclose the lien (Lawson v. Lynch, 29 S. W., 1128, and subsequent cases following it approved). Whether a similar rule should be applied where the statutory lien is not so limited, as in case of laborer’s liens, but the plaintiff seeks foreclosure on so much of the property only as will satisfy his claim for less than $200 (Allen v. Glover, 65 S. W., 379) is questioned but not decided. But where he seeks foreclosure on all the property affected by the lien and this exceeds $200 though his claim does not, the Justice Court is without jurisdiction. (Pp. 167, 168).</p>

<p>1. —Jurisdiction—Amount in Controversy — Voluntary Reduction.</p> <p>Where plaintiff had against defendant a liquidated claim (open account for goods sold) in amount sufficient to give the County Court exclusive jurisdiction of a suit thereon, he could not, by abandoning his debt to the extent that it exceeded that amount (reducing it from $202.50 to $197.75) deprive that court of its original jurisdiction and maintain suit on his claim, so reduced, in the Justice Court. (P. 170).</p> <p>2. —Same—Case Distinguished.</p> <p>The ruling herein (following Missouri, K. & T. Ry. Co. v. Smith, 98 Texas, 47; Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Texas, 481; Burke v. Adoue, 3 Texas Civ. App., 496; St. Louis S. W. Ry. Co. of Tex. v. Berry, 177 S. W., 1187) is distinguished from that applied in Ft. Worth & R. G. Ry. Co. v. Matthews, 108 Texas, 231, a case where plaintiff’s demand admitted of a segregation of the amount sought to be remitted from that sued for. (P. 170).</p>

Question certified by the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County. Kanaman appealed from a judgment recovered against him at suit of Gahagan.' The Court of Civil Appeals reversed, and rendered judgment for appellant (185 S. W., 619); but pending a motion for rehearing it certified to the Supreme Court the question here involved.

Questions certified from the Court of Civil Appeals for the First District, in an appeal from Harris County. Riggs recovered judgment below against the C. L. Smith Oil Co. for personal injuries. Defendant having appealed, an opinion was pronounced reversing this recovery for asserted error in admitting the testimony here discussed; but upon motion for rehearing the question as to the correctness of such ruling was certified to the Supreme Court and is here answered.

The Rio Grande & E. P. Ry. Co. sued for injunction to restrain the enforcement of an order of the Texas Railroad Commission fixing a division of the through rate prescribed for shipments of coal from Minera, on its own line, to Pescadito, on the line of the Texas-Mexican Ry. Co., as applied to coal purchased and, transported by the latter company for its own use.

Questions certified from the Court of Civil Appeals for the Second District, in an appeal from the County Court of Tarrant County. Smith sued Nesbitt and others to recover for various items of interest he had been compelled to pay to the State because of default of defendants, who had assumed such payment.

Questions certified from the Court ;of Civil Appeals for the First District, in an appeal from Harris County. The City of Houston sued the Scottish Rite Benevolent Association for taxes on its property. The case being submitted under an agreed statement of facts, judgment went for defendant, and this was affirmed on plaintiff’s appeal, but on motion for rehearing the question involved was certified to the Supreme Court.

The suit was brought by the State of Texas for the recovery of land claimed to belong to the public free school fund. Numerous parties were named as defendants, and others became parties by intervention. With this action by the State were consolidated three suits concerning the land between other parties and brought in Cameron and Willacy counties.

Mrs. M. E. Gully, divorced wife of T. R. Gully, brought suit against him to recover for necessary expenses of maintenance of their children, of whom, by the decree of divorce she had been awarded the custody.

Action by M. E. Gully against T. R. Gully. Prom a judgment for plaintiff, the defendant appealed to the Court of Civil Appeals, which reformed and affirmed the judgment (184 S. W. 555), and the defendant brings error.

Question certified from the Court of Civil Appeals for the Fifth District, in an appeal from Hill County. The Whitney Hardware Company appealed from a judgment sustaining a general demurrer to its petition seeking recovery against Mrs. McMahan and others. The opinion of the Court of Civil Appeals reversed and remanded the case; but on account of the doubt raised by the opinion in Red River Natl. Bank v. Ferguson, 109 Texas, 287, certified the question to the Supreme Court.

<p>1. —Railways—Johnson Grass — Receivers—Penalties.</p> <p>A railway receiver is liable, under articles 6601, 6602, Revised Statutes, for the recovery there authorized for permitting Johnson grass to go to seed on its right of way to the injury of the lands of an adjoining proprietor, where the road was operated by the receiver at the time the' grass was so permitted to mature. (P. 249).</p> <p>2. —Same—Statutory Construction.</p> <p>The words “railroad” and “railway company” include natural persons as well as corporations; and requirements and regulations necessary to the proper management of the property and the safeguarding of private property and the public protection are just as obligatory upon receivers as upon railroads under the management of their own chosen officers. (P. 250).</p> <p>3. —Cases Discussed.</p> <p>United States v. Harris, 177 U. S., 306; distinguished. Sloan v. Central Iowa R. Co., 62 Iowa, 728; Mikkelson v. Truesdale, 63 Minn., 137; Hunt v. Conner, 26 Ind. App., 46; Lampshear v. Buckingham, 33 Conn., 237; Commonwealth v. Felton, 53 S. W., 1046: Atlantic Coast Line v. Georgia, 234 U. S., 289; International & G. N. Ry. Co. v. Bender, 87 Texas, 100; Thompson v. Missouri, K. & T. Ry. Co., 103 Texas, 372; United States v. Ramsey, 116 C. C. A., 568; Huntington v. Attrill, 146 U. S., 657; Central Trust Co. v. Wabash etc. Ry. Co., 26 Fed., 12; Robinson v. Harmon, 157 Mich., 272; Hill v. Boston etc. R. R., 77 N. H., 151; discussed and followed. (Pp. 250, 253).</p>

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

J. H. T. Mills applied to the County Court of Hill County to have an instrument in writing admitted to probate as the will of Ella D. Mills. This was contested by Marshall Mills and others, who denied its genuineness, and appealed to the District Court from a judgment admitting it to probate. In the District Court the will so presented was reiected and probate thereof refused, on verdict of a jury, and J. H. T. Mills appealed to the Court of Civil Appeals.

<p>Original application to the Supreme Court for writ of mandamus requiring the judges of the Fifth Judicial District to certify a question to the Supreme Court.</p>

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

Brown sued Bonougli for the recovery of real property and recovered judgment. On defendant’s appeal this was reversed and judgment renderd in his favor, whereupon appellee obtained writ of error.

<p>Error to the Court o£ Civil Appeals for the Second District, in an appeal from Johnson County.</p> <p>Gatewood sued the railway company and recovered damages. On defendant’s appeal the judgment was reversed and the cause remanded. On dissent in the Court of Civil Appeals as to one of the several grounds there held cause for reversal, the Supreme Court granted writ of error.</p>

The Garage Company brought suit against Nichols and sequestered an automobile. Chambers, who had bought the car from Nichols, filed a claim bond, and this was a trial of the right of property thereunder. Judgment being for the Garage Co., Chambers appealed and secured a reversal and rendition of judgment in his favor (210 S. W., 565) which on writ of error obtained by the Garage Co. is here affirmed.

<p>1 — .Jurisdiction—Estates of Decedents.</p> <p>The court to which application for administration is first made acquires thereby jurisdiction to determine the facts on which its jurisdiction to administer rests. (Pp. 303-305).</p> <p>2. —Same—Claims of Rival Courts.</p> <p>The jurisdiction of rival probate courts seeking to administer upon the estate of a decedent is not determined by priority of judgment nor priority in the issuance and service of process. It is fixed by the first filing of an application with necessary allegations to show jurisdiction, and the truth of these allegations must be there determined. All persons interested are parties to that proceeding, and the determination of the facts sustaining jurisdiction there cannot be collaterally attacked or overcome by proceedings in another probate court, though its service of notice and judgment taking jurisdiction of the administration were had prior in point of time to those where the first application was filed. (Pp. 304, 305).</p> <p>3. —Same—Case Stated.</p> <p>Application for letters of administration on the estate of a decedent, with necessary allegations to show jurisdiction, were filed in M. county, and applicant appointed and qualified as temporary administrator. Subsequently application for probate of a will of decedent and administration was made in H. county, with allegation that decedent resided and died therein. Service of notice was completed and this application came on for hearing in H. County before the completion of the notice or determination of the facts was had in M. county. A plea in abatement and to the jurisdiction of H. county was overruled, the will admitted to probate, and the applicant appointed administrator. Held that the overruling' such plea was error requiring reversal, and this though the evidence supported the judgment. The filing of the first application in M. county gave that court jurisdiction to determine the facts as to whether that was the proper county. The second applicants must contest such facts there; they could not deprive that court of its jurisdiction by asserting and proving contrary facts in the court of H. county. (Pp. 302-306).</p> <p>4. —Cases Discussed.</p> <p>Clepper v. State, 4 Texas, 245; Bonner v. Hearne, 75 Texas, 253; Texas Trunk Ry. Co. v. Lewis, 81 Texas, 7; followed. (P. 305).</p>

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

<p>Questions certified to the Supreme Court from the Court of Civil Appeals for the Fifth District, on error from Travis County.</p>

Questions certified from the Court of Civil Appeals for the Sixth District, in an appeal from Tarrant County. The questions were certified in accordance with the ruling of the Supreme Court in proceedings for mandamus. Warren v. Wilson, 108 Texas, 264.

<p>1. —Discovered Peril — Burden of Proof.</p> <p>To entitle a plaintiff to recover for injury by being struck by a locomotive engine, in spite of the existence of contributory negligence, it is necessary to show discovery by those operating it of plaintiff’s perilous position, and that they could, by the exercise of proper care, have stopped it in time to avoid the injury. (P. 329).</p> <p>2. —Same—Charge.</p> <p>An instruction holding a railway liable despite plaintiff’s contributory negligence if its employees discovered plaintiff’s position of peril on the track -and thereafter negligently failed to use due care to stop the engine and avoid the collision was erroneous in omitting the element, necessary to recovery in such case, that the injury could then have been avoided by the use of such care. (Pp. 328, 329).</p> <p>3. —Same.—Independent Defenses.</p> <p>Where, of several contentions made by defendant, either should, if sustained, relieve from liability," they should not be submitted conjunctively as constituting a defense only if all were established, but in such way as to permit a finding in defendant’s favor on either issue to relieve from liability. (P. 329).</p> <p>4. —Same.</p> <p>A charge relieving defendant from liability in case plaintiff was found guilty of contributory negligence only in the event that defendant was not negligent, and that he did not discover plaintiff’s peril, and that he could not by the use of reasonable care avoid the injury after discovery of it, was erroneous in requiring all such independent defenses to concur in order to relieve from liability, and did not cure error in another charge on discovered peril. (Pp. 329, 330).</p> <p>5. —Confusing Charges.</p> <p>See charges held, as a whole, to be confusing and misleading and to put too great a burden of proof on defendant. (P. 330).</p> <p>6. —Change—Objections.</p> <p>Objections to the charge of the court not made in the proper time and manner on the trial of the case cannot be considered as ground for reversal. (P. 330).</p>

Browne, who had intervened in a suit by Acrbos against Mrs. King, after settlement by the latter with the plaintiffs, asserting an interest in the land in controversy, appealed from a judgment denying him recovery. On affirmance (196 S. W., 884) he obtained writ of error from the Supreme Court.

Emory and others sued Bailey and others for the recovery of land. The trial court excluded evidence offered by plaintiffs and directed a verdict for defendants. Plaintiffs appealed and on affirmance of .the judgment (181 S. W., 831) obtained writ of error.

<p>1. — Landlord and Tenant — Fixtures—Dwelling Erected by Tenant.</p> <p>One who occupied free of rent land of his employer, with the latter’s consent and for his convenience in the matter of nearness to his work, and, erecting thereon at his own cost a small dwelling for himself and family, removed it from the premises at the termination of his tenancy, is not to he presumed, being only a tenant at the landlord’s will, to have intended to make it a part of the realty, and in the absence of contract as to the ownership of the building was not liable to the landlord for removing it. (P. 348).</p> <p>2. —Same—Altering Condition of Property.</p> <p>The presumption as to ownership of a dwelling erected by the tenant at his own cost was not affected by the fact that, with the consent of the landlord, he had torn down an uninhabitable former dwelling on the premises and made a barn out of the materials. (P. 349).</p> <p>3. —Cases Discussed.</p> <p>Hutchins v. Masterson, 46 Texas, 554; Cullers & Henry v. James, 66 Texas, 494; Wright v. McDonnell, 88 Texas, 150; discussed and applied. (P. 348).</p>

Spann sued the City of Dallas and others, and appealed from a judgment for defendants. On its affirmance by a divided court he obtained writ of error.

Wilson sued the Southern Traction Co. and recovered. The judgment, on defendant’s appeal was reversed by a divided court and appellee obtained writ of error.

Clegg sued Brannan and others for specific enforcement of a contract to convey lands. Judgment was for defendant on demurrer sustained to the petition. This was affirmed on plaintiff’s appeal (190 S. W., 812) and he obtained writ of error.

<p>1. —Contract—Fraud—False Representations.</p> <p>A pleading considered is held to allege that the execution oí the contract sued on was induced by a promise of things to be done in the future by the plaintiff which he then intended not to perform; and showed that defendant’s assent to such contract was obtained by fraud." (P. 378).</p> <p>2. —Same—Promise not Intended to be Kept.</p> <p>Contracts may be avoided for fraud when induced by representations or promises of things to be done by the promisee which were not intended to be performed, as well as by misrepresentation of fact. (P. 378).</p> <p>3. —Same—Written Contract — Parol Evidence.</p> <p>One entitled to avoid an entire written contract by parol proof of fraud inducing his assent to it is not bound by a stipulation in such contract that no representations or guaranties had been made by the promisee which were not expressed in the written contract. (Pp. 378, 379).</p> <p>4. —Same.</p> <p>The rule that parol evidence is not admissible to change the terms of a valid written instrument does not operate to prevent its admission to establish that a written instrument is rendered voidable by fraud. (P. 379). 379).</p> <p>5. —Same—Case Stated.</p> <p>The agent selling for the publishers a law encyclopedia with four annual supplements represented to the buyer that the supplements would be continued annually for not less than fifteen years. Their publication was discontinued after the publication of one additional volume. The promise to continue them was not embraced-in the written contract of sale, which was tor periodical payments, and this stipulated that no representations or guaranties had been made on behalf of the seller which were not embraced in the written contract. Held, that parol proof of such representations and of the fact that the seller did not then intend to perform them and had discontinued the publication was admissible in defense of an action to recover one of the periodical payments, as proof that the contract was obtained by fraud. (Pp. 376-380).</p> <p>6. — Evidence—Agency—Harmless Error.</p> <p>Statements by a collector of plaintiff that compliance with his promise to continue the issuance of annual supplements to the cyclopedia sold would be discontinued by the seller was inadmissible in the absence of proof of his authority as agent to make such representations. But the error was harmless where the fact of such discontinuance was fully established by other evidence from an officer of the corporation selling. (Pp. 379, 380).</p>

McCardell and others brought suit for land claimed by them as heirs of Davis, against Lea and others claiming the same under a sale by the administrator of Davis’ estate. Plaintiffs were denied a recovery and defendants awarded one on their cross action for the land in controversy. Plaintiffs appealed; and on affirmance (200 S. W., 562) obtained writ of error.

Mrs. Mason, on behalf of herself and her children, sued the Missouri, K. & T. Ry. Co., Charles E Schaff, Receiver of its property, and W. D. Hines, Director-General of Railroads, for injuries from the death of her husband who was killed by being struck by a train. The road, at the time of the injury to deceased, had been taken out of the hands of Schaff who was operating it as receiver, and was then operated by the Government under the Director-General of Railroads.

<p>1.-hi surance-Pire-Warranties-Invoices, Accouiit Books, Examination etc. -Statute.</p> <p>The Act of April 2, 1913, Laws, 23d Leg., p. 194, regarding contracts of fire insurance, has reference Only to warranties and provisions in the policy a breach of which naight contribute to bring about a fire loss. (P. 398).</p> <p>2-Same.</p> <p>Pleadings in answer to an action on a policy of fire insurance asserted warranties by insured; to have yearly invoices; to keep safely certain books of account showing changes in stock; and in case of loss to submit on demand to examination on oath as to his loss; with breach of all such undertakings and consequent avoidance of the policy in accordance with its terms. These provisions not being within the purview of the Act of April 2, 1913, it was error to sustain exceptions to the plea as one made ineffective as a defense by the statute. (Pp. 396-398).</p> <p>3.-Agreement to submit to Arbitration.</p> <p>Breach of the undertaking by insured to submit to examination under oath does not operate as a bar to recovery; but is to be pleaded in abatement, with the effect, if the plea is sustained, of a dismissal of the suit as prematurely brought. (P. 399).</p> <p>4.-~Certified Question.</p> <p>The question whether error in sustaining a demurrer should be held ground for reversal, since it involves a consideration of the whole record, is not determined by the Supreme Court on certified question. (P. 399).</p>

<p>1. —Contempt—Jurisdiction.</p> <p>One court is not authorized to punish contempt of another court. This rule is elementary; and the statutes of the State (Rev. Stats., arts. 1708, 4668-4670) are consistent-with it. (P. 402).</p> <p>2. —Same—Case Stated.</p> <p>In a divorce proceeding instituted and pending in the 65th District Court (El Paso) defendant was, on May 23, 1921, injoined from transferring -community property of himself and plaintiff. On October 24, 1921, the case was transferred to the 41st District Court in the same county. Thereafter, on affidavit charging defendant with contempt in violating the injunction in July preceding and while the case was still within the jurisdiction of the -66th District Court, he was adjudged guilty and imprisoned for the contempt. On habeas corpus before the Supreme Court it is held that the two ■district courts were independent of each other; that the contempt was against the 65th District Court; that the 41st District Court had no jurisdiction to punish therefor; and that the relator should be discharged. (Pp. 400-402).</p>

Original application by Anderson to the Supreme Court for writ •of mandamus against Robison, as Commissioner of the General Land Office, with whom A. P. Barrett was joined as co-respondent.

<p>Public lands <&wkey;l73(7) — Purchasers of school sections have prior right to- purchase propor-. tionate part of excess land.</p> <p>Where a section surveyed for the public school fund and described as containing 649 acres contained in fact 652 acres, and the different quarters were patented to different persons as containing 160 acres each, the purchasers had a prior right to their proportionate parts of the excess, and such light was given special application in article 5397, Rev. St. 1911.</p>

Robert S. Holland applied for probate of the will of his mother. It was contested by Mrs. Nimitz and others, co-heirs of decedent. The will was admitted to probate in the County Court, and, on appeal by contestants, in the District Court. Contestants prosecuted appeal on which the Court of Civil Appeals rendered judgment reversing1 and remanding the case (217 S. W., 244) and Holland obtained writ of error.

Hales sued the S. A. U. & G. R. R. Co. and the receivers thereof to recover for work done in the construction of the road bed and establish a lien'on the road and its equipment. He recovered judgment for the debt and lien, with direction to certify same to the Federal Court for classification and payment by the receivers. On appeal he was held entitled only to personal judgment against the company (196 S. W., 903) and thereupon he obtained writ of error.

Original application to the Supreme Court by Johnson for a writ of mandamus against Robison as Commissioner of the General Land ' Office, with whom B. J. Clarke and others were joined as co-respondents.

This was a motion in the Supreme Court for leave to file an original petition therein for issuance of a writ of mandamus against the State Commissioner of Insurance and Banking.

The county brought suit against Charlton, County Treasurer, and his bondsman, and recovered judgment. Defendants appealed, and plaintiff, the county, obtained a writ of error from the Supreme Court on a judgment (228 S. W., 969) reversing and rendering in favor of appellants.

Eastham and others sued Steinhagen and others for injunction, which they obtained, but which was dissolved on defendants’ appeal (233 S. W., 660). Appellees thereupon obtained writ of error.

Original application to the Supreme Court for writ of habeas corpus by Olson, who had been imprisoned for contempt in violating an injunction by the District Court of Stephens County against his selling intoxicants.