Volume 196 — South Western Reporter

Action by Charles Clark, doing business as Charles Clark & Co., against the Texas Company. On motion of appellant to require the clerk to issue to it certificate under Rev. St. art 1559. Motion dismissed.

D. Harvey, Judge. Suit by the Southern Engine & Pump Company against the Teneha Light & Power Company, in which the defendant pleaded damages in reeonvention in the answer. Judgment for defendant, and plaintiff appeals.

<p>1. Mandamus &wkey;>172 — Issue.</p> <p>In a mandamus proceeding to compel the judge of a district court to vacate, as to the property of a decedent, a receivership pending in the court, and to order delivery of the property to relator as administrator, the only question presented was as to relators right to have the judge vacate the receivership and order the delivery -of the property to him, and whether the district court had authority to sell the property was immaterial.</p> <p>[Ed. Note. — For other eases, see Mandamus, Cent. Dig. §§ 381-385.]</p> <p>2. Courts &wkey;472(4) — Exclusive Jurisdiction oe Probate Court — Sale oe Prop-EKXy.</p> <p>The general rule is that the jurisdiction of the probate court to sell property of a decedent upon whose estate administration has been commenced is exclusive.</p> <p>[Ed. Note — For other eases, see Courts, Cent. Dig. § 1204.]</p> <p>3. Mandamus <&wkey;172 — Absence oe Record in Case Involved.,</p> <p>In a mandamus proceeding to compel the judge of a district court to vacate a receivership as to property of decedent and order delivery to relator as administrator, the record of the cause in the district court not being before the ■'Supreme Chart, it cannot determine whether the case in the district court is such as to render it not subject to the rule that exclusive jurisdiction to sell property of decedent on whose estate administration has been commenced is in the probate court.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 381-385.] '</p>

Action by H. A. Blair against the San Antonio & Aransas Pass Railway Company. Plaintiff died during its pendency, and the action was revived in the name of Mrs. Lula Blair, administratrix. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, where the judgment was affirmed. 184 S. W. 566. Defendant brought error.

<p>Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.</p> <p>Action by G. T. McCulloh against the Reynolds Mortgage Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Nuisance <&wkey;S0 — Cotton Gin — Injunction.</p> <p>The building of a cotton gin and mill in a 'business district intersected by a railroad, whore mills, gins, and factories are running, and there are only three residences, will not be enjoined at the suit of the owners of these residences on the ground that their inmates .will be annoyed by noise, and dust being blown there by the wind, where it is not claimed that the property will be rendered worthless or uninhabitable, nor that defendants are not able to respond in damages that might be found against them.</p> <p>[Ed. Note. — Eor other cases, see Nuisance, Cent. Dig. § 192.]</p> <p>2. Nuisance &wkey;>89 — Injunction.</p> <p>The erection of gin in a business district will not be enjoined as a nuisance at the suit of owners of residences in the neighborhood in order to force defendants to buy property of plaintiffs, or to protect one. not a party to the suit from competition in his line of business.</p> <p>[Ed! Note. — For other cases, see Nuisance, Cent. Dig. § 192.]</p> <p>3. Nuisance <&wkey;S0 — ^resumptions. ■</p> <p>Unless it should appear that a cotton' gin cannot be used or controlled, so as not to injure adjacent property, plaintiffs cannot enjoin its erection, for, the business of ginning being legitimate, and not a nuisance per se, it is -presumed that it will be conducted in such a manner as not.to injure any one.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 192.]</p> <p>4. Nuisance <&wkey;>84 — Evidence.</p> <p>It is not sufficient to show that a cotton gin will be a nuisance to residents in the neighborhood, that other gins built in the vicinity have caused inconvenience due to noises and dust, -where the evidence shows that improved machinery will be used which will eliminate them, and which is not sho-wn to have been used in the other gins, and where it appears that the -prevailing winds are such as not to carry dust from the proposed gin to plaintiffs’ residences.</p> <p>[Ed. Note. — For other cases, see Nuisance, .Cent. Dig. §§ 196-199.]</p>

<p>Appeal from District Court, Navarro County;' I-I. B. Daviss, Judge.</p> <p>Suit by Henry Iversen, against the Houston & Texas Central Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Gregg County; John M. Tipps, Judge.</p> <p>Action by J. H. Mel-Ianey, County Judge, against the People’s State Bank of Longview and others. Plaintiff appeals from a judgment in his' favor for $8,204.67.</p> <p>On June 18, 1916, the People’s State Bank of Longview, Tex., a hanking corporation, with the Lion Bonding & Surety Company, a corporation, as surety, executed a bond in the sum of $25,000, payable to the county judge of Gregg county and his successors in office, the conditions being as follows:</p> <p>“The condition of the foregoing obligation is to the effect that, whereas, the aforesaid bank has been designated as a depository for certain funds and moneys belonging to the obligee:</p> <p>“Now, therefore, the condition of this obligation is to the effect that if the said bank shall during the term commencing at 9 o’clock a. m. on the 18th day of June, Í916, promptly pay over on proper legal order such sums as shall have been deposited with it under the bond as the designated depository aforesaid, -together with the amount of interest which it has contracted to any thereon, then this obligation shall be void, otherwise to be and remain in full force and virtue: Provided, however, and this bond is issued by the surety on the following express conditions, to wit:</p> <p>“(1) That if at any time during the currency of this bond the obligee- shall hold any other security on account of its funds deposited with said bank, such security shall not be released without notice to and the consent of the surety hereon, and if the said obligee shall, without the knowledge or consent of the said surety, release any such security, then this bond shall thereupon become absolutely null and void.</p> <p>“(2) That if at any time during the currency of this bond the amount on deposit with the said bank to the credit of the obligee shall exceed the amount of this bond and the obligee fail to require the giving of additional security, the liability of the surety thereon in the event of loss shall be limited to such proportion of the total loss as the penalty of this bond bears to the total sum then on deposit.</p> <p>“(3) That the surety hereon shall be liable hereunder for only such proportion of the total loss sustained as the penalty of this bond shall bear to the total penalties of all bonds and securities furnished to the obligee, and in no event shall the surety hereon be liable hereunder in any sum in excess of the penalty of this bond.”.</p> <p>The county judge brought this suit against the principal and the surety on the bond to recover the amount of the penalty of the bond. The petition, after describing the bond, alleges:</p> <p>“Plaintiff would further show that the said People’s State Bank had been designated under the terms of the law as a depository for certain funds and moneys belonging to the county of Gregg, state of Texas, and that there had been deposited in said People’s State Bank the sum of $25,000 which was to the credit of said Gregg county as money received for the sale of bonds to build good roads in Gregg county, Tex., and that there was in the hands of said bank said sum of money so deposited, and that the above-described bond was given by the said People’s State Bank to secure to said Gregg county the above $25,000, which was known and designated as the special road and bridge fund, and which said money had been deposited on or about the 16th day of June, 1916. And plaintiff would further show that on the 16th day of August, 1916, there was a legal demand made by the proper county authorities upon said bank for said sum of money, to wit, $25,000, and that the bank failed and refused to turn over said money or any part thereof, and still fails and refuses to turn over said money, and that your plaintiff has been advised and charges the fact to be true that said People’s State Bank on or about said date closed its doors, suspended business, and that said bank, with all of its possessions, property and belongings, was taken over and is now held by the banking commissioner of Texas under the laws of the state of Texas. Said People’s State Bank being a banking corporation, created and existing, under the laws of the state of Texas, and that said bank, so your petitioner is advised, is now and was on the date last mentioned insolvent and unable to meet its demands in the due course of business, and that by reason thereof said obligation now sued upon becomes due and suit is now brought upon said bond to recover said $25,000, and at the time of said failure of the bank and the demand made said bond was in full force and effect.”</p> <p>The surety company answered by denial, and specially pleaded as follows:</p> <p>“Defendant Lion Bonding & Surety Company denies that its liability if any, hereunder is in the amount of the penalty of the bond declared upon, but says that the bond declared upon contains the following provision: ‘That the surety hereon shall be liable hereunder for any such proportion of the total loss sustained as the penalties of all bonds and securities furnished to the obligee, and in no event shall the surety hereon be liable hereunder in any sum in excess of the penalty of this bond.’</p> <p>“This defendant would further show to the court that before and at the time of the default complained of there was another and additional bond and security furnished to the obligee, which was and is in force and effect, said bond being signed by the People’s State Bank, the same principal, and by divers individual sureties, said bond being in the penal sum of $50,000, same being set out verbatim in this defendant’s foregoing special exception No. 2, to which ref-erenee is hereby made. This defendant says that under the terms of the foregoing provision and under the terms of the additional bond this defendant’s liability, if any, is limited to only such proportion of the total loss sustained under this bond as the penalties of this bond bear to the total penalties of both bonds, which is as $25,000 is to $75,000, and that, accordingly, this defendant’s liability, if any, under said bond is not in excess of $8,333.39.”</p> <p>The plaintiff by supplemental petition pleaded, as material now to state:</p> <p>“That so much of the answer of the defendant which seeks to set up and allege that they are cosureties with other bondsmen who had given additional bonds this plaintiff would specially deny that there were any other bonds covering this special fund, but that the bond upon which suit is declared in this case was given by the defendant for a special purpose and on a special fund, which was not covered by any other bond and was and is a common-law obligation and not given by the said bank under the depository law of the state of Texas. Plaintiff would further allege and show that on the 10th day of February, 1915, the People’s State Bank did make application to the commissioners’ court of Gregg county to become the depository of the common funds of Gregg county, including the school money, and that the commissioners’ court did declare and award the said bank a contract for the deposit of the common funds and school money, and on said date, which was the time fixed by law for the deposit of county funds in banks, did deposit said funds with said bank, and to protect said common fund the said bank did execute a bond on last aforesaid date for the sum of $50,000, which was signed by various and sundry citizens of Longview, Gregg county, Tex., and which was approved by the said commissioners’ court, and that in pursuance of said bond the common fund and school funds were deposited in said bank.”</p> <p>It appears that the People’s State Bank of Longview was designated by the commissioners’ court of Gregg county a® the depository of the funds belonging to such county for a term of two years from February 9, 1915. On February 10, 1915, the hank executed a bond as such depository in the sum of $50,-000, with certain individuals signing the same as sureties. The condition of that bond is:</p> <p>“That the People’s State Bank of Longview, Tex., shall faithfully perform all of the duties and obligations devolving by law upon said depository, and shall pay upon presentation all chocks drawn upon said depository by the county treasurer of the county, and shall faithfully keep and account for according to law all the fund of said county.”</p> <p>At the time of the designation of the bank as depository, and at the time of the execution of the bond mentioned, the county funds consisted of the common funds and school funds of the county. In March, 1915, there was an election held in Gregg county for good roads bonds, and by that election the people voted upon themselves a bond issue of $300,000 to build good roads. The bonds were issued about the 1st of June, 1915, and the purchase money of the sale of the bonds came into the county treasury of Gregg county. The People’s State Bank presented to the court a written application as follows:</p> <p>“That this bank be relieved from services as county depository under its present contract with the county of Gregg for such portion of the particular funds arising from the sale of the $300,000 issue of good roads bonds recently voted by the county as shall exceed the amount of $69,935.20, the bank agreeing to give bond for the amount, desiring to serve as depository for such amount under its present contract with the said county as its depository.”</p> <p>On June 16, 1915, the commissioners’ court entered an order respecting the said application of the bank as follows:</p> <p>“It is therefore ordered, adjudged and decreed by the court that said application be and is hereby granted, and the said depository, the People’s State Bank of Longview, is relieved of said deposit from the sale of said bonds to the extent of said $225,000, and the bank will receive the sum of $69,935.20 of the money arising from the sale of said bonds, and is hereby ordered to give a new and additional bond in terms of the law in the amount of said additional deposit of $69,935.20 in some responsible guarantee insurance company, and further that said application of said bank to be relieved of said deposit be recorded in the minutes of this court.”</p> <p>In pursuance of this order the People’s State Bank, with the Lion Bonding & Surety Company as surety, executed a bond in the sum of $35,000, and also executed another bond in the same amount with another and different company as surety thereon. These bonds were approved and filed. Some time subsequent to the issuance and approval of these two bonds the $69,935.20 of the good roads fund was reduced by expenditure to $24,614.93; and on June 18, 1916, the said bank executed the bond which is here sued upon, and the same was approved on July 11, 1916, and the two other bonds mentioned were canceled by the commissioners’ court. The proof showed that the bank when it failed owed the county $67,34S.47, composed of the following items: $30,450.88 of general funds; $24,614.93 of good roads fund; $12,-282.66 of various school funds.</p> <p>The commissioner of insurance and banking approved the total claim of the county as a general creditor’s claim, against the bank. The proof shows that the said bank Is insolvent. Thei testimony of the local agents of the surety company is to the effect that in the circumstances surrounding the making of the bond sued on it was the understanding that:</p> <p>“This bond was to cover the good roads bond issue, or rather the money arising from the good roads bond issue; and my understanding was that this bond was the only bond to cover the road fund.”</p> <p>The ease was tried before the court without a jury, and a judgment was entered in favor of the plaintiff for $8,204.67. The plaintiff appeals.</p>

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge. Hale Henderson was convicted of murder, and he appeals.</p>

<p>Appeal from District Court, Hays County; Frank S. Roberts, Judge. Tobe Sheffield was convicted of theft, and he appeals.</p>