Volume 192 — South Western Reporter

Action between the El Paso Land Improvement Company and L. M. Crawford, trustee, and others. From a decree temporarily enjoining the latter, they appeal.

<p>1. Sheriffs and Constables <@=3158 —Liability op Surety — Stbict Construction.</p> <p>The liability of sureties on a sheriff’s bond is a matter of strict law, and cannot be extended by implication or intendment.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 354-371.]</p> <p>2. Sheriffs and Constables <@=>157(5) — Liability op Sureties.</p> <p>The sureties on a sheriff’s bond conditioned that he would faithfully perform all such duties' as might be required of him by law were not liable to the county for moneys paid the sheriff on claims presented by him for postage stamps used in official business, for expenses incurred by. him for telephone services in transacting official business, for the hire of automobiles used in the transaction of his official business, or for the expense of a trip to attend a meeting of the sheriffs’ association, since the bond did not cover the sheriff’s liability to refund to the county moneys paid to him under orders of the commissioners’ court upon claims which under no circumstances could be lawfully collected from the county.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 365-369.]</p> <p>3. Sheriffs and Constables <@=>97 — Improper Receipts — Liability to Refund.</p> <p>A sheriff who received county moneys under orders of the commissioners’ court upon claims which under no circumstances he could lawfully collect from the county was liable to refund such moneys on an implied contract as for money unlawfully had and received.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 137-14!.]</p> <p>4. Sheriffs and Constables <@=>157(5) — Liability of Sureties.</p> <p>In view of Rev. St. 1911, art. 3866, providing that for summoning jurors in district and county courts, serving all election notices, and doing all other public business not otherwise provided for, the sheriff may receive annually not exceeding $500, to be fixed by the commissioners’ court at the same time other ex officio salaries are fixed, where a salary was allowed and paid a sheriff as compensation for summoning jurors, etc., the sureties on his official bond, conditioned that he would faithfully perform all such duties as might be required of him by law, were not liable for moneys paid him on claims for attending the sessions of the commissioners’ court, and on claims for serving notices of election, and for other expenses incurred in connection with the holding of elections in the county, since the further compensation allowed and paid the sheriff over his salary was without lawful authority, and beyond the scope of his office.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 365-369.]</p> <p>5. Sheriffs and Constables <@=>157(5) — Liability of Sureties.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7127, providing that whenever in any county it may become necessary to employ jail guards the sheriff may, with the approval of the commissioners’ court, employ such number of guards as may be necessary, and Ms account therefor, duly itemized and sworn to, shall be allowed by the commissioners’ court, and paid out of the county treasury, and Code Cr. Proc. 1911, art. 1148, providing that at each regular term of the commissioners’ court the sheriff shall present his account for the expenses of keeping, supporting, and maintaining prisoners and guards, where the sheriff of a county procured payments to him for moneys expended on account of jail guards, whereas he had actually employed none, the sureties on his official bond, conditioned that he would faithfully perform all such duties as might be required of him by law, were liable to the county for such money ; the presentation of the false and fraudulent account and accepting payment therefor being official misconduct violating the terms of the bond.</p> <p>[Ed. Note. — Eor other cases, see Sheriffs and Constables, Cent. Dig. §§ 365-869.]</p> <p>6. Counties <@=>75 (2) — Allowance oe Siier-iee’s Claims by Commissioners’ Court — OONCLUSIVENESS — STATUTE — “ADJUST” — “Settle * *</p> <p>Under Rev. St. 1911, art. 2241, subd. S, conferring on commissioners’ courts the power and making it their duty to audit and adjust all accounts against the county and direct their payment, as amended by Acts 32d Leg. c. 116 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2241), eliminating the word “adjust,” the commissioners’ court of a county had jurisdiction and authority to settle all accounts against the county presented by the sheriff for jail guard hire, and to direct their payment or. reject them, as the facts might warrant, its action in so doing being conclusive, and not reviewable except by the district court under its appellate jurisdiction, the district court having no authority to review and set aside the action of the commissioners’ court with respect to such matters in a collateral proceeding, such as an action by the county against the sheriff and his sureties to recover payments made for hire of jail guards which the sheriff had never employed, since the elimination of the word “adjust” from the statute did not alter its meaning; “adjust” and “settle” being synonyms.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 134.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Adjust; Settle.]</p> <p>7. Counties <@=>75(1) — Allowance oe Sher-iee’s Claims — Jurisdiction.</p> <p>Where the items of account allowed to a sheriff by the commissioners’ court could not under any circumstances have been proper charges against the county, the want of authority on the part of the commissioners’ court to allow them was jurisdictional, so that its action in so doing had no conclusive effect.</p> <p>8. Counties <@=>75(1) — Allowance oe Shee-iee’s Claims — Jurisdiction.</p> <p>The action of the commissioners’ court of a county in allowing to a sheriff claims for attending commissioners’ court, serving notices of election, etc., when his compensation for such services was limited to the annual salary paid him under Rev. St. 1911, art. 3866, was void, and had no conclusive or final effect; the court’s want of authority being jurisdictional.</p> <p>9. Counties <@=>75(1) — Allowance oe Sher-iee’s Claims — Jurisdiction.</p> <p>The lack of merit in a sheriff’s claims against a county, and want of proper form in the account, as it was presented to the commissioners’ court, did not impair the jurisdiction and authority of the court to pass on the claim and allow or reject it as it deemed proper.</p> <p>10. Counties <@=>75 (1) — Collateral Impeachment-Mistake of Fact.</p> <p>A judgment of the commissioners’ court of a county, allowing certain accounts of the sheriff could. not be collaterally impeached merely because it was based on a mistake of fact and made by the court without knowledge of the law.</p> <p>11. Counties <@=>75(1) — Collateral Attack —Perjured Testimony.</p> <p>In. an action by a county against a sheriff and his sureties to recover amounts of county moneys paid the sheriff, the orders of the commissioners’ court allowing the sheriff’s claims and ordering them paid were conclusive, though procured by false and fraudulent representations made by the sheriff to the court, since a judgment cannot be collaterally attacked on the ground it was procured by perjured testimony.</p> <p>12. Limitation oe Actions <@=>22(8), 33 — Siierife’s Liability to County.</p> <p>The two-year statute of limitation applied with respect to the liability of a sheriff to the county on an implied contract to refund county moneys had and received by him and to which he could in no event be entitled, and the four-year statute applied to his and his sureties’ liability on his official bond J:o refund amounts paid him on his false claim for the hire of jail guards which he had not in fact employed.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 109.]</p> <p>On Motion to Certify.</p> <p>13. Courts <@=>247(6)— Certification to Supreme Court — 'Withdrawal of Dissent.</p> <p>Where a dissenting justice of the Court of Appeals withdraws his dissent, appellant is not entitled to certification to the Supreme Court on account of the dissent.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 751; Appeal and Error, Cent. Dig. § 1773.]</p>

<p>1. Boundaries t&wkey;37(l) — Sufficiency ox Evidence — Conflicting Surveys.</p> <p>A verdict finding no conflict between surveys held, sustained by the evidence.</p> <p>[Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 184-189, 192, 194.]</p> <p>2. Boundaries &wkey;>3(l) — Description—Relative Importance.</p> <p>While ascertaining the surveyor’s intention is the primary object in locating boundaries, it is a rule of evidence that calls for natural objects, artificial objects, and distance and course rank in the order given.</p> <p>[Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 3, 5.]</p> <p>3. Boundaries <&wkey;3(3) — Description—Artificial Objects.</p> <p>In a boundary location calls for natural or artificial objects prevail over those for course and distance only when they can be identified with reasonable certainty.</p> <p>[Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 6-19.]</p> <p>4. Adverse Possession &wkey;>115(5) — Sufficiency of Evidence — Hostile Character of Possession.</p> <p>Where the wife of the record owner’s lessee lived on the land after her husband’s death, but did not claim title by adverse possession in a former suit to eject her, and certain of her children testified that she did not dispute her lessor’s title, her hostile holding was a jury question.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 697, 699, 700.]</p> <p>6.Landlord and Tenant <&wkey;56(l) — Hostile Holding — Lessee’s Family.</p> <p>Where the children of the record owner’s lessee continued .to live upon the land until date of suit, they continued to hold under the lease although the original lessee had died.</p> <p>[Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 124.]</p> <p>6. Adverse Possession &wkey;>80(2) — Color of Title — Deeds—Sufficiency of Description.</p> <p>Under a statute requiring registration of the deed under which a claim by adverse possession is made, a deed not describing the land in fact nor according to the field notes claimed to be applicable thereto is insufficient.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 464, 465.]</p> <p>7. Adverse Possession &wkey;>97 — Extent of Possession — Trespasser.</p> <p>Where the record owner’s lessee resided upon the land, such lessee had constructive possession of the entire tract, and a trespasser could only disseise the true owner to the extent of his actual possession.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 537-541.]</p> <p>8. Appeal and Error <&wkey;1070l(2) — Harmless Error — 'Verdict—Inconsistent Answers.</p> <p>Where a record owner’s lessee had constructive possession of an entire tract, inconsistent jury answers, regarding the adverse possession by a trespasser of a small portion, are immaterial, where such possession was claimed to establish title by adverse possession to the entire tract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233.]</p> <p>9. Partition &wkey;>4^-ACT of Parties — Power of Attorney.</p> <p>A power of attorney from one owning an undivided interest in property to the other part owner, in which the grantor described himself as the owner of a certain part thereof, is insufficient to establish a partition, where it is not shown that the power was accepted or acted on.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 6-12.]</p> <p>10. Appeal and Error <&wkey;843(2) — Necessity of Decision.</p> <p>Where appellees ' are the record owners of real estate, it is unnecessary to pass upon their claim of title by adverse possession.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331.]</p> <p>11. Adverse Possession <&wkey;110(4) ^-Pleading Possession — Sufficiency.</p> <p>A plea of adverse possession of an entire tract and a specific portion thereof is insufficient to raise the question regarding another specific portion.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ ’ 644, 645.]</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by T. E. Shelton against the Diebold. Safe & Lock Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Evidence <&wkey;472(4) — Opinion — Opinion on Mixed Question oe Law and Fact.</p> <p>In an action for damages to live stock in transit, the shipper’s testimony that ho saw the ears in which the cattle were loaded, that they had very little bedding, that he objected, to shipping the cattle in such condition, and that he knew from his experience how much it took to satisfactorily and adequately bed cars to ship cattle in, stating that it took 2% inches of sand and cinders, and that in his experience the cattle that were injured and those that were dead would not have been injured had the cars been properly bedded, was not inadmissible as an expression of opinion on a mixed question of law and fact.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2189.]</p> <p>2. Evidence <&wkey;489 — Opinion — Qtjadeication oe Witness.</p> <p>In an action for damage to bulls in transit, where the shipper’s testimony showed that he was apparently qualified to state the market value of the crippled bulls on their arrival at a market, and his qualification was not challenged, he was properly allowed to state the market value of the crippled bulls at the market, since a witness need not state how he has acquired a knowledge of values unless the knowledge be challenged.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2274.]</p> <p>3. Evidence <&wkey;472(ll) — Opinion — Mixed Question oe Law and Fact.</p> <p>In an action for injury to bulls in transit, the shipper’s testimony that from his experience as a cowman and shipper he believed not having any bedding in the cars and standing on hard floors caused the cattle’s feet to swell, etc., was not inadmissible as an opinion on a mixed question of law and fact.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2195.]</p>

<p>1. Carriers <&wkey;318(3) — Negligence —'Evidence-Sufficiency.</p> <p>Evidence in a street car passenger’s action for personal injuries, held sufficient to sustain a finding that defendant was guilty of negligence.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1307, 1308.]</p> <p>2. Daicages <&wkey;216(2) — Instructions—Medical Services.</p> <p>In an action by a street car passenger for personal injuries, testimony of physician that he made five or six visits to plaintiff, and that $200 was a reasonable charge therefor, is sufficient to warrant an instruction to find for plaintiff the reasonable value of medical services.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 548.]</p> <p>3. Appeal and Error &wkey;>1053(4) — Carriers— Harmless Error.</p> <p>In an action against a street car company for personal injuries to a passenger struck by a brake handle, admission of testimony that there were other and more efficient brakes than the gooseneck brakes, held harmless in view of instructions that jury was not to consider the brakes of an obsolete kind, and that defendant was not required to use the newest and safest appliances.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4180.]</p> <p>4. Appeal and Error <&wkey;>302(6) — Motion for New Trial — Specification of Errors — Sufficiency.</p> <p>An assignment in a motion for new trial that jury was caused to increase amount of award because of seeing plaintiff in a swoon or faint after retiring to deliberate, in the absence of a claim and showing that the verdict was excessive, is insufficient to warrant reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1749-1752.]</p> <p>5. New Trial <&wkey;44(3) — Misconduct of Jury —Discretion.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2021, providing that if the misconduct of the jury is proven, or the testimony received, or the communication made be material, a new trial may be granted in the discretion of the court, the refusal of a new trial is not an abuse of discretion, even though it appears that after the jurors had retired to deliberate they saw plaintiff while in a swoon carried to a carriage, and one of their number made the remark that he knew plaintiff and that she was injured as she claimed to be, where jurors testify that they considered only evidence adduced at trial in arriving at their verdict.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84.]</p> <p>6. Carriers <&wkey;319(3) — Damages—Excessive Verdict.</p> <p>Where the evidence in a personal injury suit by street car passenger tended, to show that her injuries were permanent, a verdict of $12,000 is not so large as to indicate that it was the result of passion or prejudice.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1344, 1345.]</p>

<p>1. Courts <&wkey;7 — Jurisdiction—“Transitory Action.”</p> <p>A German corporation’s cause of action against a resident of Mexico on an open account for goods, wares, and merchandise was transitory, and the courts of Texas had jurisdiction over the subject-matter of the litigation.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Transitory Action.]</p> <p>2. Appearance <&wkey;19(4) — Jurisdiction Over Person.</p> <p>Jurisdiction over the person of defendant, a resident of Mexico, was acquired by his appearance before the court, in person and by attorneys, and his answering to the merits.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. § 82.]</p> <p>3. Corporations <&wkey;661(3) — Foreign Corporations — Maintenance oe Suit — Statute.</p> <p>Rev. St. 1911, art. 1318, providing that no foreign corporation can maintain any suit on a contract unless, when the contract was made, it had filed its articles of incorporation in the office of the secretary of state to procure its permit to do business, had no application to the case of a German corporation suing a resident of Mexico in the courts of Texas on an open account for goods sold defendant and shipped to him in Mexico from Berlin.</p> <p>[Ed. Neto. — For other cases, see Corporations, Cent. Dig. §§ 2539, 2542-2544, 2564.]</p> <p>4. Account, Action on <&wkey;6(3) — Pleading in Foreign Language — Translation.</p> <p>In a German corporation’s suit against a resident of Mexico on an open account, the account, in a foreign language, but accompanied by an English translation, was sufficient.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 10.]</p> <p>5. Pleading <&wkey;205(3)— General Demurrer —Itemization op Account.</p> <p>Insufficient itemization of an account does not subject a petition to general demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 499.]</p>

■' Appeal from -District Court, Garza County; W. R. Spencpr, Judge. Action by Luia Viola Floyd against the Illinois Bankers’ Life Association of Monmouth, Ill. Judgment for defendant, and plaintiff appeals. Reversed and rendered. On motion for rehearing.

<p>Error from District Court,.Hardin County; L. B. Hightower, Judge.</p> <p>Suit by Charles H. Ainsworth and others against the Houston Oil Company of Texas. Judgment for plaintiffs, and defendant assigns error.</p>

Munroe, Judge. Suit by J. C. Holloway and others against the City of Marlin and others. From a- judgment granting temporary injunction, defendants appeal.

<p>Judgment &wkey;17(2) — Sufficiency of Process — Nature of Plaintiff’s Demand.</p> <p>Under Rev. St. 1911, art. 1852, requiring that the citation shall state the nature of plaintiff’s demand, citation stating that the nature of plaintiff’s demand was “suit to foreclose a vendor’s lien retained in one certain promissory note,” etc., was insufficient to sun-port judgment by default on the note itself, since it did not indicate that suit was brought to recover on .the note, but only that it was brought to foreclose the lien.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 25.]</p>

<p>1. Reformation of Instruments <&wkey;>17(l) — Mutual Mistase — Source of Title.</p> <p>Where the parties to a deed make a mutual mistake regarding the source of the grantor’s title, equity will reform the deed or grant other-appropriate relief.</p> <p>[Ed. Note. — Eor other cases, see Reformation of Instruments, Cent. Dig. §§ 69, 71.]</p> <p>2. Reformation of Instruments <&wkey;45(6)— Sufficiency of Evidence — Mutual MisTAKe.</p> <p>Evidence held, to sustain a jury finding that the parties to a deed made a mutual mistake regarding the source of grantors’ title, although the grantors did not testify and the grantee read the deed before accepting it.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. § 163.]</p> <p>3. Reformation of Instruments <&wkey;>44 — Admissibility of Evidence — Mutual Mistake.</p> <p>Testimony regarding the grantee’s conversations with attorneys who drew a deed to her held admissible on the issue of mutual mistake regarding the grantor’s source of title.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156.]</p> <p>4. Reformation of Instruments <&wkey;44^-Au-MISSIBILITY OF EVIDENCE — MUTUAL MISTAKE.</p> <p>Evidence that the grantee had inventoried certain property as her deceased husband’s separate estate was admissible to show that she had concurred in a mutual mistake regarding the source of title to such property.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156.]</p> <p>5. Reformation of Instruments <&wkey;44 — Admissibility of Evidence — Mutual Mistake.</p> <p>On an issue of mutual mistake in a deed, the grantors’ power of attorney giving authority to dispose of their entire interest in the property was admissible.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156.]</p> <p>6. Appeal and Error &wkey;»731(5) — Assignment of Error — Sufficiency.</p> <p>An assignment of error that the verdict is contrary to the law and evidence, and the court’s judgment contrary to law, is too general to require consideration.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3021.]</p> <p>7. Real Actions <&wkey;8(2) — Admissibiltiy of Evidence — Expenditures of Defendant.</p> <p>Where defendant in an action to recover real property claimed the deed was intended to convey the entire estate to her, but that in any event she should have' a lien for sums expended, evidence regarding part payment of mortgage debts on the property from her separate estate is admissible.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 29, 30.]</p>

<p>Error from Fannin County Court.</p> <p>Action by K. B. Foster against the Merchants’ & Bankers’ Fire Uriderwriters. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Upshur County; R. M. Smith, Judge.</p> <p>Action by J. R.-Wood against the St Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p> <p>This appeal is from a judgment (so far as it is material.to state it) in favor of ap-pellee agaihst appellant for $3,507.49 as the damages (and interest thereon) suffered by him because of the- destruction by fire of a sawmill plant, including a planer and certain lumber owned by him. Appellee alleged that fire was communicated to his property as the result of negligence on the part of employés of appellant in charge of one of its locomotives. The judgment in his favor was based on findings made by a jury on special issues submitted to them: (1) That the fire which destroyed his said .plant escaped from one of appellant’s locomotives; (2) as a result of the failure of appellant’s employés in charge thereof to use ordinary care in operating it; and (3) that the .value of the property so destroyed was ?3,346.97.</p>

<p>Appeal from Hárrison County Court; Geo. L. Huffman, Judge.</p> <p>Action by A. Waghalter against John C. Sanders, Sheriff, and others. Judgment for plaintiff, and defendants appeal.</p> <p>October 3, 1913, the State Bank of Marshall, having a judgment against appellee, had an execution issued thereon for $481.80 and interest from September 23, 1913, at the’ rate of 10 per cent, per annum; that being the part of the judgment then unpaid. On the day it was issued the execution was levied on a stock of goods as the property of appellee. Included in the stock were certain shoes, valued at $300, which one McConkin claimed to own, and for which he filed a claimant’s oath and bond to try the right of property therein. The other portion of the stock of goods was sold as directed by the writ, the sheriff receiving1 therefor $400, $23.-70 of which he applied to the payment of court costs, and the remainder of which he paid to the bank, as was shown by his return on the execution made October 16, 1913. The right of property suit between the bank and McConkin was tried April 9, 1914, and resulted in a judgment which, after reciting that:</p> <p>“The issue between plaintiff and defendant was one of trial of right of property to 196 pairs of Peters shoes, which property was levied on by plaintiff by a writ of execution on the 3d day of October, 1913, and recovered with a claim bond from plaintiff by defendant on the 5th day of October, 1913, and the court after hearing all the evidence and argument of counsel is of the opinion that the plaintiff, the State Bank of Marshall, should recover of defendant, W. N. McConkin, the full amount sued for”</p> <p>—concluded as follows:</p> <p>“It is therefore the judgment of this court that the plaintiff, the State Bank of Marshall, do have and recover of the defendant W. N. McConkin, P: G. Whaley, M. M. O’Banion, O. M. Peden, and Henry Stein, sureties on defendant’s claim bond, the sum of $309, with 6 per cent, interest from the 5th day of October, 1913, and all costs of this suit, for all of which let execution issue.”</p> <p>June 23, 1914, an execution, returnable in 90 days, was issued on the judgment set out above, for the amount thereof, and placed in the hands of the sheriff. September 23,1914, the return day of the execution, McConkin paid to the sheriff $317.40, the amount, principal, and interest thereof. The sheriff, on the day he received same, paid the $317.40 to the bank. On McConkin’s motion filed September 30, 1914, the court, on October 9,1914, made and had entered on the minutes an order by which he attempted to “correct” the judgment he had rendered and had entered April 9,. 1914, in the trial of the right of property suit. In this order it was recited that it appeared that said judgment of April 9, 1914, “fails to dispose of all the issues in this cause, and that said judgment was not entered correctly,”</p> <p>and it is further recited that at the time of the levy of the execution on the shoes they were</p> <p>“the property of said Waghalter and subject to sale in order to satisfy said execution; that the value of said shoes is the sum of $300; that the amount of plaintiff’s claim, the amount due and unpaid on said execution, as shown by the execution and return thereon, is the sum of $113.75.”</p> <p>After adjudging that the bank recovered of McConkin and his said sureties the sum of $300 and 6 per cent, interest from October 5, 1913, and costs, the order concludes as follows:</p> <p>“It is further ordered,, adjudged and decreed by the court that the amount of plaintiff’s claim be and is hereby established at the sum of one hundred thirteen dollars ($113.75) and spventy-five cents, and that plaintiff do have execution for said sum of $113.75, with 6 per cent, interest thereon from date, together with costs of suit. And it is further ordered, adjudged, and decreed that the excess of said judgment for the sum of $300, after satisfying the amount of plaintiff's claim for the sum of $113.75, interest thereon and costs of suit, shall inure to the benefit of any person or persons who shall show superior right or title thereto as against the defendant, W. N. McConkin, that execution do issue in accordance with the terms hereof. It is further ordered that this judgment shall not be considered as an adjudication of any matters or rights accruing after the date of entry of said original judgment; that is, April 9, 1914.”</p> <p>This suit was by appellee, who by transfer from McConkin had acquired the right, if any, the latter had to maintain it, against Sanders, the sheriff, and the sureties on his bond as such. In his petition appellee, among other things, alleged that the bank caused an execution to be issued on the judgment ren'dered in the trial of the right of property suit, and placed the same in the hands of the sheriff,</p> <p>“and thereafter on the 23d day of September, 1914,. the said Sanders collected from said Mc-Conkin the sum of $317.40 and all costs of suit, in full settlement of said execution. Said shoes and the proceeds thereof were the property of plaintiff, and plaintiff was entitled to receive said money from Sanders after the payment of the unpaid balance on the State Bank’s judgment against plaintiff, which said balance at the time defendant Sanders collected said money from McConkin was $118.70, leaving a balance of 198.70, which said Sanders should have paid over to the plaintiff herein.</p> <p>“Plaintiff on the 23d day of September, 1914, and thereafter repeatedly made demand upon said Sanders for the payment of said sum, and said Sanders has refused to pay plaintiff the same, or any part thereof, and wrongfully and without cause, on the 23d day of September, 1914, converted the same to his own use and benefit.</p> <p>“Each and all of the acts of said Sanders as herein alleged were done by him in his official capacity as sheriff of. Harrison county, Tex., and while the other defendants were sureties on his official bond as such sheriff, and the other defendants are each and all liable for the unlawful and wrongful acts of the defendant Sanders.</p> <p>“The plaintiff avers that by reason of the unlawful acts and conduct of the defendant Sanders as herein alleged plaintiff has been damaged in the said sum of $198.70, and by reason of being deprived of said sum of $198.70 by said unlawful acts and conduct of said Sanders plaintiff has suffered further damages in the sum of 6 per cent, per annum interest on said sum of $198.70 from September 23, 1914, to the filing of this petition, making in all the sum of $212.70 plaintiff has been damaged.</p> <p>“Plaintiff prays that he have judgment against the defendants jointly and severally for said damages in. the sum of $212.70, together with interest on said sum of $198.70 from this date until final judgment, and he prays for costs of suit and for general relief.”</p> <p>The witness O’Banion testified:</p> <p>“I was the attorney for McConkin in the trial of right of property suit in the county court between McConkin and the State Bank. After the execution was issued on the judgment in that case, on the 23d of September, 1914, Sheriff Jno. C. Sanders notified me that he was going to levy on the property of the sureties on Mc-Conkin’s bond. I asked Sanders if he had an indemnity bond, and he said no, and I told him that he had better get one, as the judgment and execution were not correct. I asked him to hold up the execution until I could get the judgment and execution corrected, but he said that he had to make his return on it that day. Sanders said that he knew that the execution was not correct, as the bank was not entitled to all that money. I again talked with Sanders about the execution and judgment, telling him that I could not get them corrected until Judge Huffman returned from the lake. I asked Sanders if I paid him the money if he would hold it until Judge Huffman returned from the lake so that I could get the judgment and execution corrected, and he said that he would do so. He said that he would not pay the money out at all until I had a chance to correct the matter.</p> <p>“I also talked with Mr. J. B. Henderson, office deputy for Mr. Sanders, about the execution and judgment being incorrect, and he said that the bank was not entitled to all that money, and that he knew that it was not correct. He also said that they would hold the money and not pay it out until I could get an opportunity to correct the judgment and execution. I paid the costs and the $317.40 over to Mr. Henderson, with this understanding, and to prevent the sheriff from levying on the property of the sureties on McConkin’s bond.”</p> <p>The witness Henderson testified:</p> <p>“In September 14, 1914, I was chief deputy sheriff under J. O. Sanders, and had charge of the office. I held for collection an execution against McConkin and sureties in the trial of right of property ease. Mr. O’Banion came to the office on September 23, 1914, and paid me the amount claimed in the execution, which was about $317.40, and costs. After he paid me the money I started to the bank with it, and met Mr. O’Banion in the door of the sheriff’s office, and he then asked me if I would not hold up the paying over of the money for a while to see if he' could not get some relief. He said that the bank was entitled to only the balance remaining unpaid On its judgment against Wag-halter. I told him no, that the execution was in favor of the bank for the whole amount, and I would have to pay it out to the bank. This was the last day of the life of the execution, and I could not hold the matter up.”</p> <p>Appellant Sanders testified:</p> <p>“I was sheriff of Harrison county, Tex., in the years 1913 and 1914. The execution issued in the case of State Bank of Marshall against A. Waghalter and the execution in favor of the State Bank of Marshall against McConkin in the trial of right of property suit were placed in my hands as sheriff of Harrison county. I called on Mr. O’Banion several times to get him to settle the McConkin execution. He did not settle it with me, but wanted more time, and I think he said there was something wrong with the judgment. I don’t remember that I promised him to hold the execution up. I suppose that I must have known that O’Banion was claiming that the bank was not entitled to all the money.”</p> <p>The trial resulted in a judgment in ap-pellee’s favor against the sheriff and the sureties on his official bond for the sum of $217.07.</p>

<p>Appeal from Smith County Court; Jesse E. Odom, Judge. Action by Toledo Scale Company against Erank Eck-els and another. Judgment for plaintiff, and defendant Eckels appeals.</p>

<p>Appeal from Camp County Court; G. W. Keeling, Judge. Action by Edwin Fore against the Border Queen Milling Company, wherein defendant filed a cross-bill. Judgment against plaintiff, and for defendant on its cross-bill, and plaintiff appeals.</p>