Volume 200 — South Western Reporter

<p>1. Appeal and Error <@=719(3, 4, 8) — Review — Assignments op Error — Fundamental Errors.</p> <p>Under Rev. Civ. St. art. 1607, requiring Courts of Civil Appeals to determine controversies on errors in law, assigned or apparent on the face of the record, the court is required, even in the absence of any assignment, to examine the pleadings and the judgment to ascertain the jurisdiction of the court, and its authority to render. the particular judgment brought up, and a judgment based upon insufficient pleadings, or rendered in a case where the court had no jurisdiction over the parties or the subject-matter, or not conforming to the pleadings, is fundamentally erroneous, and should .be revised regardless of legal difficulties involved in discovering the error.</p> <p>2. Appeal and- Error <S=719(1) — Review-Assignments oe Error — Fundamental Errors.</p> <p>Under Rev. Civ.. St. art. 1607, where an error is one which must be discovered by an examination of evidence, then, in order to be considered in the absence of an assignment, it must not only be one which affects the rights of the parties to a particular kind of judgment, but one which is open and easily discovered by an inspection of that portion of the record in which the evidence is presented.</p> <p>3. Appeal and Error <@=212, 719(6) — Objections — Assignments off Error — Necessity.</p> <p>Under Rev. Civ. St. art. 1607, requiring Courts of Civil Appeals to review errors, assigned or apparent on the face of the record, and article 1971, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), providing that litigants shall be given an opportunity to examine and object to the charge before it is read, and that objections not so made shall be considered as waived, the giving of a peremptory instruction is not per so such an error as may be considered in the absence of appropriate objections and proper assignments, and if the evidence makes the giving of the charge of doubtful propriety, and a critical examination of the evidence is necessary to revise the error, it cannot he reviewed.</p> <p>4. Appeal and Error <§=215(1) — Necessity of Objections — Instructions.</p> <p>Under Rev. Civ. St. art. 1971, as amended in 1913, even an error apparent on the face of the record when resulting from an improper charge is waived, and the right of revision on appeal is lost when no objections are presented in the court below.</p>

Error from Titus County Court; Sam Porter, Judge. . Action by M. Greenspun against Jim Brown. To review a judgment by default for plaintiff, defendant brought error. The judgment was affirmed orally without considering the assignments, and defendant moves for rehearing.

<p>1. Schools and School Districts <§=>24 (1) —Enjoining Taxation — Collateral Attack.</p> <p>A petition to enjoin assessment and collection of taxes in a school district, on the ground that plaintiff’s land was not lawfully within its boundaries, but within the boundaries of another legal district, was not demur-rable on the ground that it was a collateral attack upon the incorporation of defendant district; there being no attack on the corporate existence of defendant district or its right to tax lands properly within its boundaries.</p> <p>2. Schools and School Districts <§=>24 (2) —Incorporation—Collateral Attack.</p> <p>In a suit to enjoin assessment of taxes on plaintiff’s land by defendant school district, on the ground that the land was in another lawful district, defendant’s answer that the incorporation of the latter district was void was a collateral attack upon its corporate existence.</p> <p>3. Schools and School Districts <§=>44r— Abolishing — Nonuser.</p> <p>Where a school district was declared duly incorporated by an order of the commissioners’ court reciting that an election had been held, etc., and was operated for some time, it could only be abolished by an election held for that purpose, as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1077, 1078, 2856b, and not by nonuser.</p> <p>4. Schools and School Districts <§=>102— Redistricting — Validity.</p> <p>Where the matter of redistricting was not under consideration by the commissioners’ court when it established a new independent school district, and there was no attempt to change the boundaries of the school district in which plaintiff’s land was situated, and which was at the time of the order operating as an independent school district, the order cannot be held to have the effect of redistrieting under the statute, so as to place plaintiff’s land in defendant school district for purposes of taxation, though the description of the boundaries of the new district embraced plaintiff’s land.</p> <p>5. Schools and School Districts <§=>102— Redistricting — Procedure.</p> <p>That the Attorney General approved an issue of bonds for defendant school district, where the orders of the commissioners’ court included therein lands of another district, would not have the effect of redistricting under the statute.</p> <p>6. Schools and School Districts <§=>27— Creation — Inaccuracies in Description.</p> <p>Slight inaccuracies in description of the boundaries of a school district are insufficient to render its incorporation void.</p>

Action by Mrs. Lucy C. Wallace and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from District Court, Cherokee County; D. D. Guinn, Judge.</p> <p>Action by Laura Sessions and others against Armistead Sanders and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Trespass to Try Title <®=>41(1) — Evidence — Title.</p> <p>In trespass to try title, proof by plaintiff of actual possession, under claim of ownership, without reference to whether it was continuous within the statute of limitations or not, was prima facie evidence of title, sufficient, unless rebutted, to authorize recovery against a defendant entering upon the land a few months before and taking possession thereof from a tenant without plaintiff’s consent.</p> <p>2. Execution <$=>320 — Recitals in Sheriff’s Deed.</p> <p>Recital in sheriff’s deed that it was made under an alias execution on a judgment, after proper levy and advertisement, is not conclusive, though a long time has elapsed since the date of such deed, but it is merely some evidence such execution was issued and levied; such recital not being one the sheriff is required to make in discharge of his official duty.</p>

<p>1. Appeal and Error <@=1078(4) — Brief-Matters Reviewable — Sufficiency of Evidence.</p> <p>Where the assignments in appellant’s brief do not challenge the sufficiency of the evidence to support the verdict, the Court of Civil Appeals is not called upon to do so by the oral argument of the parties on such question when the cause was submitted.</p> <p>2. Appeal and Error <@=882(8) — Harmless Error — Admission of Evidence.</p> <p>Where an abstract of title in its entirety was introduced in evidence by a party in trespass to try title, he cannot complain of the introduction of a part thereof by the other party.</p> <p>3. Evidence <@=219(1) — Title—Payment of Taxes — Admissibility.</p> <p>Proof that one did not render land for taxes after a certain time was admissible as a circumstance to show that the land was conveyed under a certain instrument.</p> <p>4 Appeal and Error <8=204(1D — Master, Reviewable — Evidence — Necessity for Objection.</p> <p>Complaint cannot be made of admission of evidence not objected to.</p> <p>5. Trial <3=352(1) — Questions to Jury — Weight of Evidence — Legality of Evidence.</p> <p>A question to the jury, “Do you find that the evidence showed by a preponderance thereof that on the 12th day of December, 1877, I. M. Ball and B. T. Estes conveyed to J. D. Mason 640 acres of land out of the C. M. Akin headlight survey, containing 2,637 acres, being patent 895, and abstract No. 1, and situated on the line of Bowie and Red River counties, being the 640 acres of which the 440 acres in controversy is a part,” was not on the weight of the .evidence, or as delegating to the jury the right to pass on the legality of evidence; the question being as to the identity of land conveyed. •</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Error (@=3262(2) — Matters Reviewable — Exceptions—Necessity for.</p> <p>Refusal of a motion for a directed verdict, if it could be treated as a requested special charge, is not ground for complaint where no exception was taken to the ruling.</p>

<p>Insurance (§=3602 — Action — Attorney’s Fees.</p> <p>In action for $165, unpaid portion of insurance policy, with 12 per cent, damages and reasonable attorney’s fees, allowance by trial court of $100 attorney’s fees was excessive by the sum of $50.</p>

<p>1. Insurance <@=5791(1) — Fraternal Benefit Society — Suicide.</p> <p>A fraternal benefit society policy for $1,000 provided that “omsatisfaetory proof of total and permanent disability” the insured should receive the value of the policy at that time in ten equal annual installments, and, should death intervene, the installments should be completed to the beneficiary, and in the event of self-destruction there should be paid only one-fifth the amount payable in case of natural death. Held, where insured suicided before proof of incurable insanity had been furnished the society, and before it had paid anything on account thereof, the beneficiary’s right to recover was predicable, not on disability, but only on insured’s death; and, death being due to suicide, she could recover only $200.</p> <p>2. Appeal and Error <@=1151(2) — Reforming Judgment.</p> <p>Where appellee beneficiary suing fraternal benefit society was not entitled to recover on her pleadings, the appellate court could look to appellant’s pleadings, which conceded a smaller sum due appellee on another theory, and reform the judgment to adjudge appellee’s recovery of the smaller sum.</p> <p>3. Appeal and Error <@=1152 — Reforming Judgment — Costs.</p> <p>It appearing that before trial appellant tendered appellee a smaller sum than sued for, the appellate court, in reforming judgment for ap-pellee to reduce it to such smaller sum, could further reform the judgment to adjudge against appellee costs accruing in the trial court after such tender.</p>

Action by J. W. Gross against T. P. Rodgers. Judgment for plaintiff, writ of garnishment issued, and the Fannin County National Bank intervened. Judgment for plaintiff against garnishees, and intervener appeals. The appellee recovered a judgment in the justice court against T. P. Rodgers for $96.-28, with interest and costs, and he procured issuance of a writ of garnishment against Marshall & Lindsey, a copartnership.

Suit by Permelia Broom and others against John Pearson, to which P. J. O. Wood and W. H. Wood were made parties defendant. From-the judgment, plaintiffs appeal. This was a suit of trespass to try title and' for damages (statutory in form), brought by Bertha Compton, Thomas Brown, and appellants Permelia Broom and her husband John Broom, George B. Compton, Minnie Love-lady and her husband Luther Lovelady, Thomas Compton, and Bird Compton, against appellee John Pearson.

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge.</p> <p>Suit by F. A. Hooker and others against T. T. Tompkins and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Hardin County; J. Llewellyn, Judge.</p> <p>■Suit by Mrs. V. D. Hardee against the Commonwealth Trust Company and others. Judgment for plaintiff, and' defendants appeal.</p>

<p>1. Injunction <&wkey;65 — Right to Remedy — Interest in Subject-Matter.</p> <p>Street railway having valid franchise to use city streets has such an interest in the use of the city streets that it may sue to restrain the use thereof by jitneys licensed under alleged invalid ordinance.</p> <p>2. Injunction <&wkey;65 — Jitneys — Illegal Operation.</p> <p>Street railway having valid franchise to use city streets may by injunction proceed. against city for purpose of declaring invalid legislative grant of power to license jitneys, in order to avoid ruinous multiplicity of suits, since otherwise it must resort to individual suit against each licensee.</p> <p>3. Injunction &wkey;>65 — Right to Writ — Threatened Injury.</p> <p>Where city passed ordinance for licensing jitneys which street railway alleged was invalid, it could sue to enjoin threatened enforcement of the ordinance directly against the city.</p> <p>4. Municipal Corporations <&wkey;57 — Powers.</p> <p>Municipalities or other legislative instru-mentalities may exercise only such legislative powers as are expressly or by implication delegated to them by the Legislature.</p> <p>5. Municipal Corporations <&wkey;108 — Jitneys — Ordinances—Validity.</p> <p>Dallas City charter, art. 3, subd. 1, requires all powers conferred on city to be exercised by mayor and board of commissioners, unless otherwise directed. Article 2, § 8, subd. 7, empowers the city, through the board of commissioners, to regulate charges of franchise holders and to prescribe the service upon fair hearing. Article</p> <p>2, § 8, subd. 27, authorizes regulation of charges of carriers. Article 8, § 1, provides for the initiative and referendum of ordinances. Held, that as regulation of carriers must be by the board of commissioners an ordinance regulating jitneys and authorizing them to be licensed, passed under the initiative and referendum clauses, is invalid.</p>

<p>Appeal from District Court, El Paso County; Ballard Ooldwell, Judge.</p> <p>Action by G. C. Challen against the Southwestern Portland Cement Company. Judgment for plaintiff, defendant appeals.</p>

<p>1. Trespass to Try Title <&wkey;41(l) — Sufficiency op Evidence.</p> <p>In trespass to try title, where both parties claimed through a common source, evidence held sufficient to show that a vendee in defendant’s chain of title was not an innocent purchaser for value as to a prior vendee in plaintiff’s chain.</p> <p>2. Deeds <&wkey;38(4) — Description — SuffiCIENCY.</p> <p>A patent ambiguity was not disclosed by a description of land as 1,000 acres lying on the “west of a half” of a named league rendering the deed void, where the record showed that the grantor only owned the west half of the league, making it apparent that the conveyance was of 1,000 acres of the west end of the east half of the named league.</p> <p>3. Vendor and Purchaser <&wkey;231(l) — Constructive Notice — Record op Deed.</p> <p>After a deed was recorded subsequent purchasers were charged with constructive notice thereof.</p> <p>4. Vendor and Purchaser <&wkey;231(3) — Bona Fide Purchasers — Notice—Record.</p> <p>Purchasers are only charged with notice of facts exhibited by the record, and not with such as might have been ascertained by such inquiries as an examination of the record might have induced a prudent man to make.</p> <p>5. Vendor and Purchaser <&wkey;231(3) — Bona Fide Purchasers —Notice —Chain op Title.</p> <p>Every purchaser of land is chargeable with all that the real estate records show in the claim of title under which he claims, including all recitations therein.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Action by George Kelly against the Mac-kay Telegraph & Cable Company. Judgment for plaintiff, and defendant appeals.</p>

<p>• Appeal from Leon County Court; C. D. Craig, Judge.</p> <p>Suit by W. T. Lyon against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Motley County; J. H. Milam, Judge.</p> <p>Action by W. D. Clark against the St. Paul Eire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.</p>

<p>Adverse Possession <&wkey;103 — Extent of Possession — Conflicting Surveys.</p> <p>Where the purchaser from the patentee of the B. survey, conflicting with an earlier, the E. survey, not knowing of the conflict, went into possession, claiming the whole survey, using parts of it in conflict and other parts not in conflict, with the E., and cleared up and fenced other parts, he acquired by such possession, for the requisite time, title by limitations to all the parts in conflict.</p>

1. Venue Where defendant shipped cotton from his county to that of plaintiffs consigned to himself, and forwarded bills of lading to plaintiffs' with drafts calling for advances, and after the cotton was sold plaintiffs applied the proceeds in part payment of the advances, which were also secured by stock placed in plaintiffs’ hands as a pledge, there was no writing to perfprm any obligation in plaintiffs’ county under Vernon’s Sayles’ Ann. Civ.

<p>Appeal from District Court, Tyler County; W. R. Blackshear, Judge.</p> <p>Action by John W. Hankins against the Houston Tie & Lumber Company, in which the M. Rumley Company intervened. From the judgment, defendant appeals.</p>

<p>Appeal from District Court, Medina County; R, H. Burney, Judge.</p> <p>Action by Walter Koehler against W. L. Dubose and others. From a judgment for defendants, plaintiff appeals.</p>

B. Minor, Judge. Suit by T. C. Berry against the Western Indemnity Company, M. Canet, and another. Erom a judgment for plaintiff, the defendant company and Canet appeal.

<p>Appeal from District Court, Hardin County ; Hon. D. B. Hightower, Sr., Judge.</p> <p>Trespass to try title by Ella Woods and others against Emma Fowler and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Bexar County ; J. T. Sluder, Judge.</p> <p>Suit by the Old Faithful Oil Company against John T. McGiveran. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Garnishment <&wkey;7 — Jurisdiction-Judgment in Rem.</p> <p>A judgment in rem secured against a nonresident by publication after attachment and garnishment proceedings against his property within the state, binds only the property attached, and does not support garnishment proceedings instituted after the entry of such judgment in rem.</p> <p>2. Garnishment (&wkey;183 — Judgment in Rem— Form.</p> <p>The proper judgment in attachment and garnishment proceedings against a nonresident not personally appearing would be to limit the judgment’s execution to the specific property attached or garnished.</p> <p>3. Garnishment <&wkey;7 — Judgment to Support.</p> <p>Rev. St. 1911, art. 271, § 3, authorizing garnishment proceedings after judgment, refers to a personal judgment upon which execution might issue.</p> <p>4. Garnishment <&wkey;175 — Judgment Against Garnishee.</p> <p>There can be no valid judgment against a garnishee without a valid judgment against the principal defendant.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Suit by Henry Mummey and another against the Texas Employers’ Insurance Association. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by the Kansas City Produce Company against the International & Great Northern Railway Company. From an adverse judgment, defendant appeals.</p>

R. Blackshear, Judge. Action by J. M. Click against E. M. Lut-trell and others, wherein Mrs. Estella Rowland intervened. Judgment for plaintiff, and defendants and intervener appeal.

B. Hopkins, Judge. Suit between the American National Insurance Company and J. D. Hamilton, executor. Prom an order refusing to vacate a receivership, and refusing to dissolve a temporary injunction, the latter appeals.

<p>1. Attachment &wkey;>350 — Action on Bond-Sufficiency of Evidence.</p> <p>In action on attachment bond, testimony of deputy sheriff, who filled out the bond as it appeared at the trial, etc., held to require a verdict against the sureties, who contended that the bond read for a smaller amount when their signatures were obtained.</p> <p>2. Judgment <&wkey;373 — Setting Aside — “Alteration” — 1 ‘ Spoliation. ’ ’</p> <p>Judgment on an attachment bond will be set aside because of an alteration in the bond by a party to the original action only, since a change made by one not a party is a spoliation, and not an alteration, of the bond.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alteration ; Spoliation.]</p> <p>3. Judgment &wkey;>377 — Setting Aside — Failure to Defend.</p> <p>In action by sureties to set aside a judgment on an attachment bond, their failure to know of an alleged alteration in the bond until after the term of court had expired held not a sufficient excuse for failing to set up such a defense in the original action.</p> <p>4. New Trial &wkey;>166(3) — Expiration of Term of Court — When Granted.</p> <p>One can obtain a new trial by an original proceeding after the term of court has expired, only by affirmatively showing diligence to prevent the judgment, or that defense in the original action was prevented solely by fraud, accident, or the opposing party’s acts.</p>

<p>Insurance ¡&wkey;443 — Mutual Benefit Associations — Policy — Construction — “Business.”</p> <p>Clause in mutual benefit policy, avoiding liability for death if insured was killed while engaged in any illegal business, does not release from liability, where insured was shot while resisting arrest or attempting to escape from an officer; the word “business” meaning occupation or calling, and not the same as the words-“caused by unlawful act,” or “while - engaged in violation of law,” which terms are customarily employed in policies, and the attempted escape having no. connection with insured’s calling.</p> <p>[Ed. Note — Eor other definitions, see Words and Phrases, First and Second Series, Business.]</p>

Error from District Court, El Paso County ; Ballard Cold well, Judge. Suit by W. D. Mosley against I. Alderete and wife. To review a judgment for plaintiff, defendants bring error.

<p>Appeal from District Court, Montgomery County; J. Llewellyn, Judge.</p> <p>Consolidated actions by Hamilton Besser and another against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for each plaintiff, defendant appeals.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by John Hazelbusch against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Karnes County; F. G. Chambliss, Judge.</p> <p>Suit by Victoria Kunz and others against J. W. Ragsdale and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge.</p> <p>Trespass to try title by Will McGovern, guardian, against G. W. Woolley and Miriam McGovern. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Bowie County; H. F. O’Neal, Judge.</p> <p>Joe Steel was convicted of murder, and lie appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.</p> <p>Ezra Coffey was convicted of an aggravated assault, and appeals.</p>

<p>Original application for' writ of habeas corpus by Walter Pruitt.</p>

<p>1. Infants <@=>16 — Juvenile Delinquence— Punishment — Statutes.</p> <p>Const. art. 5, § 17, provides that misdemeanors may be prosecuted by indictment or information. The juvenile delinquent law (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195, et seq.) defines the term “juvenile child,” and proscribes when she may be tried by a jury, that proceedings against her shall be begun by complaint and information, and for her arrest, and for probation, placing in a home and commitment to any institution caring for children, and that no child shall be committed to. a time beyond the age of 21 years. Pen. Code 1911, art. 6 provides that if a provision of the penal law is indefinite it shall be inoperative, and Vernon’s Ann. Code Cr. Proc. 1916, art. 770, that the verdict shall assess the penalty where it is not fixed by law. Held, that the proceeding is a criminal proceeding, that article 1197 is effective only as defining a delinquent child, and not operative in so far as occupying the same field with statutes against felonies or misdemeanors, and that, there being no provision under which the jury could fix the time of confinement, a judgment committing a female delinquent child to the Sister of an order for an indefinite term not extending beyond 21 was void.</p> <p>2. Infants <@=>12 — Juvenile Delinquence— Punishment — Statute.</p> <p>Juvenile delinquent law, construed witih Const, art. 5, § 5, defining tho jurisdiction of the Court of Criminal Appeals, and Vernon’s Ann. Code Cr. Proc. 1916, art. 894, giving the right to appeal, is not void as denying the right of appeal.</p> <p>Prendergast, J., dissenting.</p>

<p>Homicide @=234(1) — Guilt—Sufficiency of Evidence.</p> <p>In a prosecution for wife murder, evidence held to show guilt.</p>

<p>Appeal from District Court, Shelby County; Daniel Walker, Judge.</p> <p>Charles Caraway was convicted'of violating the local option law, and he appeals.</p>

<p>Homicide c&wkey;234(7) — Sufficiency of Evidence.</p> <p>Circumstantial evidence held sufficient to sustain the conviction of murder of defendant’s father.</p>

<p>Original application by A. S. Parr for a writ of habeas corpus.</p>

<p>1. Carriers @=>210 — Shipment op Live Stock — Duties and Liabilities as to Loading.</p> <p>It was the duty of a carrier of cattle to load them on the cars, but if the shipper’s agent undertook to and did load them, and as a result of his negligence in overloading the car or rough handling the cattlo were injured, the carrier was not liable for the resulting damage.</p> <p>2. Caekieks @=>210 — Shipment op Live Stock —Duties and Liabilities as to Loading.</p> <p>If a shipper’s agent merely assisted the train crew in loading cattle under the control of the train conductor, and the car was negligently overloaded and the cattle thereby injured, then the carrier was liable for the resulting damage, but not for any injury sustained by rough handling of the cattle by the shipper’s agent while loading when not authorized by the conductor.</p> <p>3. Oabriebs @=3228(1) — Injuries to Live Stock — Burden op Proop.</p> <p>In an action for damages to a shipment of calveá’ defended on the ground that the shipper, through his agent, undertook to and did load the calves, and that over its protest the car was overloaded, and that the damage sustained was caused by negligence in overloading and rough handling by the agent, the burden was on the carrier to show that the agent undertook to load the cattle and roughly handled them in so doing.</p> <p>4. Depositions @=364(3) — Examination op Witnesses — Responsiveness op Answers.</p> <p>In an action against a carrier for damage to a shipment of cattle, a brakeman was. asked, in taking his deposition, whether he was present and heard the conductor request the party in charge of the calves to unload some of them as the car was overloaded, and if so to state fully what they said. In part of his answer he stated that the car was jammed full and too full. He was also asked to state whether he was present and heard the conductor inform those in charge of the loading that they could not load any more calves into the car, and if they did not insist upon loading nine head more, and to state fully what occurred during the loading of the calves. Part of his answer was that this was the worst crowded car of cattle he' had ever seen in 14 years of railroading. Held, that the portions of the answers referred to were not responsive to the questions, and should have been stricken on motion.</p> <p>5. Depositions @=>64(3) — Examination op Witnesses — Responsiveness op Answers.</p> <p>In such action much of an answer of the conductor to a question asked him as to whether he had anything to do with the shipment and if so what, and to state fully everything he did in regard thereto, held not responsive.</p>

Error from District Couit, Reeves County ; S. J. Isaacks, Judge. Action by the County Attorney of (Reeves County, in the name of the State, to enforce collection of delinquent taxes, against Elzada McDaniel. From a default judgment for plaintiff, defendant brings error.

<p>Error from District Court, Reeves County; ,.S. J. Isaacks, Judge.</p> <p>Action by the County Attorney of Reeves County, in the name of the State, to enforce collection of delinquent taxes, against Elzada McDaniel. From a default judgment for plaintiff, defendant brings error.</p>

G. Tayloe, Judge. Action by T. L. Blackman against the San Antonio & Aransas Pass Railway Company, with the Pullman Company impleaded. Judgment for defendant against plaintiff, and against defendant in favor of the Pullman Company, and plaintiff appeals.

Tipps, Judge. Suit by R. P. Ash and W. E. Biggs to recover personal property or its value from R. E. Trabue and R. C. Trabue. Judgment for plaintiffs, and defendants appeal.

<p>1.Carriers <@=>76 — Actions for Conversion —Persons Entitled to Sue.</p> <p>Persons authorized to take possession of the contents of a car containing a shipment of fruit had such possession as entitled them to sue the carrier for conversion of the fruit, and the carrier, having recognized their authority and accepted a receipt from them for the contents of the car, could not question their right of possession.</p> <p>2. Carriers <3=^89 — Failure of Consignee to Receive Goods — Sale by Carrier.</p> <p>Rev. St. 1911, art. 729, providing that should any perishable property remain unclaimed it shall be the duty of the carrier to sell it at public auction after giving five days’ notice, supersedes the common law in respect to the manner of selling, and a sale by a carrier without the notice required by statute was illegal, and might be made the basis of a suit for conversion, though the carrier complied with the common-law rule with reference to the salé of goods.</p> <p>3. Carriers <@=»94(3) — Conversion of Goods —Evidence of Value — Sufficiency.</p> <p>In an action against a carrier for the conversion of a shipment of fruit, which the carrier-took possession of and sold because of the consignee’s failure to unload the fruit, evidence of the market value of the fruit on August 22d did not support a judgment, where the illegal sale was made on August 25th, the goods being of a perishable nature and subject to rapid deterioration.</p> <p>4. Carriers <S=3lOO(l) — Receipt of Goods by Consignee — Duty to Remove.</p> <p>The consignees of a carload of fruit had no right to retain possession of the car and peddle fruit therefrom at retail, but were bound to unload the car within a reasonable time, failing to do which they were liable for demurrage and for the reasonable expenses incurred by the carrier in caring for the produce after retaking possession up to the time of a sale.</p>

'B. Minor, Judge. Suit by Max Acker against Closner & Sprague and others. John F. Mudge and wife filed a cross-actidn, in which the American National Insurance Company intervened. Judgments for plaintiff against Mudge and wife, and for the latter on their cross-complaint against Closner & Sprague and another. Closner & Sprague, John F. Mudge and wife, and another appeal.

<p>Error from District Court, Presidio County ; P. R. Price, Judge.</p> <p>Action by Mrs. Antonio Pena against S. J. Hensley and wife. Judgment for plaintiff, and defendants bring error.</p>

<p>Sales <@=3359(1) — Breach of Conditions by Seller — Sufficiency of Evidence.</p> <p>In action for purchase price of goods tendered back to plaintiff, evidence held sufficient to sustain a finding that plaintiff did not agree not to sell goods to another merchant in defendant’s city.</p>

<p>Error from District Court, Brown County; Jno. D. Robinson, Judge.</p> <p>Suit by W. J. Lee and others against the British & American Mortgage Company. From a judgment for defendant, plaintiffs bring error.</p>

<p>1. Appeal and Error <@=557 — Preparation op Record — Duty op Trial Judge.</p> <p>Defendants having'been granted 30 days after adjournment of court in which to file a statement of facts, where a request for the court to make the statement was not presented within 30 days, the court could not be required to make such statement, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073, providing that the judge shall not be required to prepare a statement of facts, unless a request therefor is presented within the time allowed for filing.</p> <p>2. Process <§=¿>38 — Citation — Notation op Date op Issue.</p> <p>Notation by the clerk of date of issue of citation upon the back thereof was sufficient, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2180, requiring the date of issuance to be noted on the same; the statute not requiring that the date of issuance be in the body of the citation or on its face.</p> <p>3. Process <@=34 — Essentials — Statement op Action.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, specifying what citation shall contain, does not require the setting out of a detailed statement of the cause of action.</p> <p>4. Appeal and Error <@=544 (2) — Findings op Trial Court — Review.</p> <p>Findings of the trial court will not be disturbed, in the absence of a statement of facts.</p>

<p>Appeal from District Court, Hartley County; Reese Tatum, Judge.</p> <p>Suit by J. P. Martin and wife against A. L. Godshalk. Prom a judgment vacating the judgment in a prior action, defendant appeals.</p>

<p>Appeal from District Court, Wheeler County ; W. R. Ewing, Judge.</p> <p>Suit by J. R. Carver against Wheeler County, Tex. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Kinney County; Jeseph Jones, Judge.</p> <p>Suit by J. M. Slator and others against Joseph Veltmann, County Judge, and others. Judgment for complainants, and defendants appeal.</p>

<p>Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.</p> <p>Suit by Genevrie Smith against J. W. Smith. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Montgomery County; L. B. I-Iigbtower, Sr., Judge.,</p> <p>On motion to retax costs, etc.</p>

T. Sluder, Judge. Petition for receivership by H. E. Hildebrand against the Merchants’ Transfer Company and others. From an interlocutory order appointing receiver, the company and others appeal.

<p>1. Appeal and Error &wkey;>G55(3) — Statement op Facts — Motion to Strike.</p> <p>Where the agreed statement of facts is not certified by the trial court as required by Rev. St. 1911, art. 1949, and it does not appear in the record that the facts stated are all the facts and the only facts upon which the judgment was rendered, a motion to strike the purported statement of facts will be granted'.</p> <p>2. Appeal and Error <®=643(2) — Record — Agreed Statement.</p> <p>Where an agreed statement of facts submitted to the trial court was stricken on appeal because not certified, no order by the trial court after expiration of the term at which the statement was submitted approving the same would be of efficacy, and a motion to reinstate “statement of facts” will be denied by the appellate court, in view of Rev. St. 1911, art. 1949, providing that the parties may submit a matter in controversy upon an agreed statement of facts, which statement so agreed to and signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.</p> <p>3. Appeal and Error &wkey;3907 (3) — Defective Record — Affirming Judgment — Presumption.</p> <p>Where errors assigned cannot be reviewed in absence of statement of facts and there is no error apparent on the face of the record, a judgment which could be properly rendered upon the pleadings will be affirmed, in the absence of a statement of facts.</p> <p>Brooke, J., dissenting.</p>

<p>Error from Dallas County Court; T. A. Wort, Judge.</p> <p>Action by W. W. Weston against E. Spill-man. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment <&wkey;256(l) — Failure to Deliver Message — Pleading and Peooe — Findings of Fact — Sufficiency.</p> <p>In action for failure to deliver message of probably fatal illness, where the complaint failed to allege that the message could have been delivered at any other time than on the day on which it was sent, or that any subsequent delivery would have enabled the addressee to have attended the funeral, or to have seen his sister alive, and the judge made the affirmative finding that there was no negligence on that day, judgment for the plaintiff could not stand, although the judge further found negligence on a subsequent day.</p> <p>2. Judgment <&wkey;248 — Pleading and Findings.</p> <p>A judgment must have support in the pleadings of the parties, regardless of the state of the evidence.</p>

B. Hightower, Sr., Judge. Trespass to try title by W. K. McCardell and others against J. V. Lea and others, wherein defendants filed a cross-action for the same relief. Judgment for defendants, and plaintiffs appeal.

<p>1. Wobk and Labor <§=54(2) — Implied Promise.</p> <p>Where one performs valuable services for another and the latter expresses no dissent or avails himself of the services, a promise to pay the reasonable value of the services is implied.</p> <p>2. Work and Labor <§==4 (2) — Implied Promise.</p> <p>A promise will not be inferred where there are facts wholly inconsistent with the contraot to be implied or where an express promise would be contrary to law.</p> <p>3. Work and Labor <&wkey;4 (2) — Implied Promise.</p> <p>Not every request for, or acceptance of services on the. part of another will imply an intent to pay'therefor.</p> <p>4. Brokers &wkey;>67(l) — Acting as Agent por Both Parties.</p> <p>A broker cannot, without the consent of both parties, act as agent and receive compensation from both for the same transaction.</p> <p>5. Brokers <&wkey;>67(l) — Action for Commission-Implied Promise to Pay.</p> <p>Where a broker was employed by one party to the trade, the fact that the other secured a benefit from the broker’s services in the sale of its own property would not authorize an inference that there was an implied promise on the part of the other to pay a commission.</p> <p>G. Brokers <&wkey;G7(l) — Action for Commission-Custom.</p> <p>That there was a custom that each party to an exchange pay 2% per cent, commission on his property would not authorize a recovery of a broker’s commission from a party to a trade who knew nothing of the custom.</p> <p>7. Customs and Usages <&wkey;15(l) — Contracts —Construction.</p> <p>An established or notorious custom or usage with reference to the subject-matter of a contract may be shown for the purpose of construing a contract and determining the right of the parties with reference to matters in regard to which the contract is silent.</p>

Error from District Court, McLennan County; E. J. Clark, Judge. Action by the Central Texas Exchange National Bank of Waco against B. Klaras, wherein the North British & Mercantile Insurance Company of London & Edinburgh was garnished, and prayed that an action by B. Klaras against it be enjoined. Judgment for plaintiff and order that the injunction issue as prayed, and Klaras brings error.

. Appeal from Ellis County Court; W. M. Tidwell, Judge. Action by the Pennsylvania Rubber Company against W. 6. McClain. From a judgment for plaintiff, and for defendant on ■ cross-action, plaintiff appeals.

Error from 'District Court, Tom Green County; J. W. Timmins, Judge. Action by J. P. Bolding and others against B. R. Bolding and others. To review the judgment, defendants Bolding bring error.

Chas. Gibbs, Judge. Action by J. C. Horn against Ben Callison. Judgment for plaintiff. Levy under execution having been made, Tommie Price filed' a claimant’s bond. Prom judgment in favor of claimant, plaintiff appeals.

B. Hopkins, Judge. Suit by the Board of Trustees of the Robs-town Independent School District against C. D. Patterson and the American Indemnity Company. From a judgment for plaintiff, after dismissal as to Patterson, the indemnity company appeals.

<p>Appeal from District Court, Hall County; J. A. Nabers, Judge.</p> <p>Suit by H. S. Swearingen'and wife against the Cattlemen’s Trust Company of Ft. Worth and A. L. Camp to cancel a note and a deed of trust. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Oourt, El Paso County ; P. R. Price, Judge.</p> <p>Suit by Dawson & Young against Nunn & Latham. Judgment for defendants, and plaintiffs appeal.</p>

A. Work, Judge. Action by tbe Emerson-Brantingham Implement Company against J. B. Gartin and others, wherein defendant filed a cross-bill. Judgment for defendant, and plaintiff appeals.

<p>Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.</p> <p>Suit by William M. Tulley and wife against W. J. Clark. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Carriers <&wkey;120, 121 — Goods—Liability.</p> <p>A common'carrier of goods is not an insurer against deterioration by reason of the inherent quality of the goods in consequence of the laws of nature, or for injury occasioned by the fault of the complaining party.</p> <p>2. Carriers <&wkey; 133 — Goods — Injury — Evidence — Admissibility.</p> <p>Since when a shipment is in charge of the owner’s representative, and the carrier obeys his instructions, it is not liable for resultant damage, it is error to exclude evidence that the conductor obeyed the instructions of a messenger who accompanied the goods, although there was no direct evidence that the messenger was hired by plaintiff.</p> <p>3. Carriers <&wkey;133 — Goods — ¡Injury — Evidence-Admissibility.</p> <p>In consignee’s action for damage to bananas in transit, it was error to exclude the contract between the consignor and the consignee authorizing employment of a messenger to care for the fruit, where the carrier defended on the ground that its conductor obeyed the instructions of the messenger.</p> <p>4. Trial &wkey;>251(3) — Instructions—Conbormity with Issues.</p> <p>In consignee’s action for damage to bananas in transit, defended on the ground that the conductor obeyed the instructions of a messenger accompanying the shipment, it was error to>fail to submit the issue raised by such defense.</p>

<p>Appeal from District Court, Freestone County; A. M. Blackmon, Judge.</p> <p>Proceedings by Joe Phillips against Z. T. Womack and another. Judgment for plaintiff, and the unnamed defendant appeals.</p>

<p>1. Criminal Law <@=1090(1) — Appeal—Review — Bill of Exceptions.</p> <p>In the absence of a bill of exceptions, no alleged errors in the admission or rejection of evidence, the charge, or the argument of the counsel can be reviewed.</p> <p>2. Criminal Law <@=3804(1) — Trial — Instructions — Misdemeanors.</p> <p>In the absence of request, a written charge is unnecessary in a prosecution for a misdemeanor.</p> <p>3. Criminal Law <@=1038(3) — Appeai>-Re-view — Requests.</p> <p>Omissions in the charge in a misdemeanor case cannot be reviewed in the absence of the refusal of a request to correct them.</p> <p>4. Criminal Law <@=1088(18) — Exceptions— Bill of — Reservation to Overruling Motion for New Trial.</p> <p>That a bill of exceptions is reserved to the overruling of a motion for a now trial and embodies the motion does not authorize the court to consider matters thereunder, except in cases where proof is heard as to allegations of fact, and such evidence is embodied in the bill of exceptions with the motion for new trial.</p> <p>5. Criminal Law <@=>1090 (11) — Exceptions— Necessity.</p> <p>Matters relating to the manner of a trial, including those pertaining to the selection of the jury or the argument of counsel, are not reviewable on appeal, unless verified by bill of exceptions, though defendant was without counsel in the court below.</p> <p>6. Criminal Law <@=>1090(16) — Bill of Exceptions — Necessity.</p> <p>Matters of fact set up in a motion for new trial which are not verified by bill of exceptions or statement of evidence filed during the term cannot be reviewed; this being the uniform rule as to assignments concerning the denial of a motion of a new trial requested on tho ground of newly discovered evidence.</p> <p>7. Criminal Law <@=>1124(2) — New Trial-Denial.</p> <p>Where new trial is sought upon the ground of newly discovered evidence, the overruling of the motion cannot be reviewed in the absence of affidavits of the purported new witnesses or a satisfactory explanation of the failure to produce them.</p> <p>8. Criminal Law <@=>946(1) — Aggravated Assault — New Trial — Denial.</p> <p>As the probable truth of newly discovered evidence is an essential requisite to the granting of a new trial, a motion for new trial after conviction for aggravated assault cannot be granted on the ground of alleged newly discovered evidence that before defendant struck the prosecuting witness the latter put his hand behind him in tho region of his hip pocket and made some remark to defendant, where defendant himself had testified that he made up his mind to whip the prosecuting witness because the latter had assisted in the prosecution against his father, and that he followed him from the courthouse and walked up behind him, and without a word struck him over the head with a beer bottle.</p> <p>9. Assault and Battery <@=>92 — Aggravated Assault — Evidence—Sueeicienoy.</p> <p>In a prosecution for aggravated assault, evidence held sufficient to support a conviction.</p> <p>10. Assault and Battery <@=>100 — Aggravated Assault — Punishment.</p> <p>Where defendant without provocation, pursuant to a previously conceived plan, came up behind the prosecuting witness and struck him down with a beer bottle, a verdict assessing punishment at $500 fine and imprisonment in the county jail for 12 months is not excessive, so as to be subject to review on appeal.</p>

<p>Criminal Law <3=^1090(1) — Appeal — Absence op Statement' op Pacts oe Bill op Exceptions.</p> <p>Where the record is without statement of facts or bill of exceptions, no question is presented for revision by the Court of Criminal Appeals.</p>

<p>Appeal from District Court, Presidio County; Jos. Jones, Judge.</p> <p>Suit by T. J. Cartwright against A. B. Main and wife. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by Miguel I-I. Flores against Maria Gonzales and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Dallas County; W. S'. Whitehurst, Judge.</p> <p>Suit by W. H. Gallamore against L. Glazier and another. Demurrer to complaint sustained, and plaintiff appeals.</p>

<p>Error from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by S. X. Matthews against J. T. Dea-son and others. From an order sustaining general demurrer and special exceptions to the amended petition, plaintiff brings error.</p>

C. Scott, Judge. Action by Henry Graf and others against I. B. Williams, the Buckholts State Bank, and others. Judgment for plaintiffs, and defendant bank appeals.

<p>1. Sales &wkey;>215 — Sale oe Cattle on Range. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7170,</p> <p>requiring a bill of sale always to be taken on sale of cattle on the range, and article 7171, making possession prima facie illegal without a bill of sale, have no extraterritorial effect, where the sale without the state was accompanied by actual delivery, and the property was after-wards brought into the state.</p> <p>2. Evidence <&wkey;317(4) — Heabsay—Admissi-bility.</p> <p>Where plaintiff bought cattle in Mexico, and they were claimed by defendant as administrator of his grandfather, a witness should not have been allowed to testify that he accompanied plaintiffs vendor when he paid money to the persons on whose behalf defendant claimed the cattle, and that plaintiff’s vendor then stated that he was buying certain interests of the estate; such testimony being hearsay.</p> <p>3. Appeal and Ekeor <&wkey;8S2(9) — Waiver op Error.</p> <p>That a party, objecting to testimony as hearsay, brings out testimony to the same effect on cross-examining the witness, does not waive the error.</p> <p>On Rehearing.</p> <p>4. Evidence <S=»118- — Res Gesms — Hearsay.</p> <p>The rule against hearsay testimony does not include res gestas of the transaction, such as declarations evoked by the transaction itself, without premeditation, voluntary, and spontaneous.</p> <p>5. Evidence <&wkey;121(9) — Res Gestíe.</p> <p>Where plaintiff bought cattle in Mexico, and defendant claimed them as administrator of an estate, testimony of one who accompanied plaintiff’s vendor, when he paid the money to the persons on whose behalf defendant claimed the cattle, that the vendor said at the time that he was buying certain interests from the estate, is not admissible as res gestae.</p>

<p>1. Insurance &wkey;>665(5) — Accident Insurance — Evidence—Disability.</p> <p>In a suit upon an accident policy to recover for total disability, evidence held to sustain a finding that insured suffered an injury while traveling on a train, resulting directly and exclusively in immediate, continuous, and total disability, rendering him incapable of performing duties pertaining to his occupation as a grain man.</p> <p>2. Insurance &wkey;>539(5) — Accident Insurance-Notice oe Claim — Statute.</p> <p>Rev. St. 1895, art. 3379, providing that no stipulation in any contract requiring notice of claim for damages as a condition precedent to the right to sue thereon shall be valid, unless it is reasonable, and that any stipulation requiring notice within less than 90 days shall be void, and that notice, if required, may be given to the nearest or other convenient local agent, does not mean that notice given after 90 days may not be permissible when the circumstances disclose that the delay was not unreasonable, and where the evidence did not show that the-company was injured by reason of the delay; the purpose of notice being to convey knowledge to guard against fraud, and to investigate the claim, and to prepare to contest it.</p> <p>3. Insurance <&wkey;668(14) — Accident Insurance — Notice oe Claim — Question eor Jury.</p> <p>In an action upon an accident policy for total disability, held, on the evidence, that the refusal to give a peremptory instruction for defendant on the ground of insured’s failure to give written notice -of accident within the time prescribed by the policy was proper.</p> <p>4. Insurance <&wkey;579 — Accident Insurance —Receipt—Settlement.</p> <p>Receipt by insured of $14 in payment of claim for total disability under an accident insurance policy, including doctor’s bills, etc., the amount paid being only the amount of the doctor’s bills, did not constitute a settlement in full for injuries sustained.</p> <p>5. Release <&wkey;13(2) — Validity—Consideration.</p> <p>A debtor’s payment of a liquidated amount presently due and to which he has no defense that can be urged in good faith or with color of right is not itself a sufficient consideration to sustain the creditor’s release of other liquidated claims.</p> <p>6. Insurance <&wkey;665(5) — Accident Insurance-Action on Policy — Finding as to Disability — Evidence.</p> <p>In an action upon a policy of accident insurance to recover for a total disability, evidence held to sustain a finding that insured’s injury resulted directly and independently in immediate, continuous, and total disability, preventing him from performing any work pertaining to his occupation, from the date of the accident, September 15, 1913, to February 9, 1916, notwithstanding he had for 15 months after the accident received his usual salary from his employer.</p> <p>7. Insurance c&wkey;662(l) — Accident Insurance — Notice—Evidence.</p> <p>Testimony of insured claiming total disability under an accident policy that he gave the insurer’s local agent verbal notice of the accident was admissible, though not a compliance with the policy, as bearing on the question whether his subsequent written notice was given within a reasonable time.</p> <p>8. Insurance <&wkey;661— Accident Insurance —Action on Claim — Evidence.</p> <p>In an action upon an accident insurance policy for total disability resulting from an injury on a passenger train, evidence as to the amount for which insured had settled his judgment against the railroad on account of injury, held too weak and remote to be admissible.</p>

<p>1. Juey <&wkey;89 — Disqualifications of Ju-boes — Taxpayers.</p> <p>In an action against a city, the fact that veniremen are taxpayers of the city does not disqualify them; their interest being entirely too remote.</p> <p>2. Navigable Waters <&wkey;39(4) — Title to— Riparian Proprietors.</p> <p>The channel of a natural stream more than 30 feet wide and navig;able is owned by the state, and a riparian proprietor does not own to the center of the channel, and so cannot complain that a municipality under authority of the state constructed a dam impounding the waters of the stream.</p> <p>3. Trial <&wkey;350(3) — Waters and Water Courses <&wkey; 178(2) — Injuries to Lands — Measure.</p> <p>Where a municipality erected a dam impounding the waters of a stream, and plaintiff asserted that his lands bounded by the stream were damaged, the measure of his damage is the difference between the value of his laq,d just before and just after the injury, and the refusal of special issues calling for findings as to whether the dam caused any damage to plaintiff’s lands during certain floods was not .error; there being no testimony with reference to any special or particular damage resulting therefrom.</p> <p>4. Waters and Water Courses &wkey;>179(3)— Evidence — Admissibility.</p> <p>In an action for damages to plaintiff’s land resulting from the erection of a dam, the admission of evidence as to the flooding of other lands on the same stream in time of high water was improper, where it was not shown that those lands were subject to the same conditions as plaintiff’s.</p> <p>5. Watebs and Water Courses <®=»179(3)— Evidence — Admissibility.</p> <p>In an action by a riparian proprietor against a city for damages from the construction of a dam to impound the waters of a stream, to supply the inhabitants of the city, evidence as to the great necessity of that measure, and that prior to the construction of the dam drinking water had to be hauled, and there was insufficient water for flushing purposes, was improper.</p>

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Suit by Nettie McQuerry and others against A. J. Aycock. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Tarrant County Court; Charles T. Prewitt, Judge.</p> <p>Suit by Miss Nan Collier against W. L. Davis, N. C. Hall, the American National Bank, and others. Judgment for plaintiff, and defendants N. C. Hall and the American. National Bank appeal.</p>

<p>1. Bills and Notes <&wkey;365(l) — Assignments —Bona Fide Purchaser.</p> <p>Where a note given in payment for goods was assigned for valuable consideration before maturity of the first installment to a bánk without notice of any infirmity therein, the plaintiff is entitled to judgment thereon in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 582 and 589.</p> <p>2. Alteration oe Instruments <&wkey;9 — Consent — Provisions of Contract.</p> <p>Where, in the written contract between maker and payee of a note, it was specifically agreed that the note might be detached by the payee from such contract, such detachment on the perforated fines is not an alteration of the contract rendering the note nonnegotiable.</p> <p>3. Sales <&wkey;342 — Action eor Price.</p> <p>A notice by consignee, subsequent to shipment of goods, to postpone the filling of the order, does not invalidate or impair a note given prior to shipment for the purchase price of the goods.</p> <p>4. Bills and Notes &wkey;>342 — Bona Fide Purchasers — Constructive Notice.</p> <p>The mere fact that the edge of a note assigned showed perforations indicating it might have been detached from some other paper was not sufficient to show notice of alteration or other defects or defenses.</p> <p>On Motion for Rehearing.</p> <p>5. Appeal and Error <®=3l94(l) — Objections Below — Plea op Non Est Factum.</p> <p>In a suit on a note assigned, while a verified plea of non est factum to deny execution thereof is hardly in compliance with the requirements of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1906, subd. 8, yet, in the absence of objection in the trial court, it may be considered as regular in form.</p> <p>6. Alteration op Instruments <&wkey;27(2) — Burden op Proop.</p> <p>Under a plea of non est factum where defendant relies upon the claim that the note sued on has been materially altered since execution after plaintiff has made a prima facie showing as to the execution of the note, the burden of proof shifts to the defendant.</p> <p>7. Bills and Notes <&wkey;492 — Presumption-Execution.</p> <p>There is a presumption that a document regular on its face has been duly executed, and this applies to bills and notes.</p> <p>8. Bills and Notes <&wkey;485 — Answer—Plea op Nonexecution — Effect.</p> <p>A verified plea of nonexecution of a note is not evidentiary in character, but merely robs the instrument involved, purporting to be executed by the party sought to be charged, of its own probative effect to establish its execution.</p> <p>9. Bills and Notes <&wkey;516 — Actions—Presumption and Burden op Proof — Prima Facie Showinc.</p> <p>Where, in a suit on a note, the plaintiff produced the note without objection apparently for all evidentiary purposes, as also the. order for goods for which note was given and letter of defendant requesting delay in filling the order, a prima facie case was made to charge defendant as maker of note.</p>

<p>Appeal from District Court, Collin County.</p> <p>Suit by Love & Walters, a firm composed of C. D. Love and G. C. Walters, as assignees of Kreitmair & Co. of Liverpool, England, against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.</p>

Suit by Mrs. Susie Grant and others against I. W. Stephens and G. A. Holland, executors and .trustees of the will of J. R. Couts, deceased. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by the Graham-Brown Shoe Company against C. T. Peterson. Judgment for plaintiff, and defendant appeals.</p>

W. Nicholson, Judge. Action by J. C. Wolfe and wife against Skelton & Wear, a partnership firm, composed of L. E. Skelton and E. E. Wear. Judgment for plaintiffs, and defendants appeal.

<p>1. Exceptions, Bill oe <&wkey;39(l) — Filing— CONSIDERATION.</p> <p>A bill of exceptions filed nearly a year after rendition of a judgment in the district court cannot be considered; no order extending the time appearing to have been granted within the 30-day period allowed for the filing of a bill of exceptions.</p> <p>2. Appeal and Error <&wkey;520(4) — Review-Matters Presented.</p> <p>The refusal of an application for a continuance cannot be reviewed by an appellate court unless exceptions are duly reserved and presented in a bill of exceptions filed within time.</p>

<p>1. Judgment <&wkey;823 — Full Faith and Credit Clause — Effect.</p> <p>Under Const. U. S. art. 4, § 1, and Rev. St. U. S. § 905 (U. S. Comp. St. 1916, § 1519), as to full faith and credit of judicial proceedings in a sister state, in action on a sister state judgment, the defense being a pending appeal from the judgment, the court of the forum will give the judgment the effect it would be given by the courts of the state where rendered, and the effect of the appeal on the finality of the judgment, and its admissibility in evidence in support of the rights adjudicated thereby is to bo determined by the laws of that state.</p> <p>2. Evidence i&wkey;35 — Judicial Notice — Laws of Another State.</p> <p>In action on a sister state judgment, the defense being a pending appeal from the judgment, the court cannot take judicial knowledge o'f the laws of that state as to the effect of appeal on the judgment and the right to sue thereon.</p> <p>3. Abatement and Revival &wkey;>16 — Action Pending — Effect of Pending Appeal.</p> <p>Where action is brought in Texas on a judgment rendered in Indiana, from which an appeal is pending, and the right to sue thereon in Indiana is not shown, the action is governed in that respect by the laws of Texas.</p> <p>4. Judgment <&wkey;903 — Action — Effect of Pending Appeal.</p> <p>Suit cannot be maintained on a judgment on which appeal is pending, whether on cost or supersedeas bond; since such judgment is inadmissible in evidence.</p>

<p>1. Appeal and Erbob &wkey;>301 — Assignments op Error.</p> <p>An assignment of error having no basis in the motion for new trial will not be considered.</p> <p>2. Trial <&wkey;349(l) — Special Issues and Peremptory Instructions.</p> <p>In action for commission for selling land, special issues as to the commission contract and its performance, and a peremptory instruction to find for plaintiff for a certain sum less than his claimed commission, regardless of answers to special isues, were irreconcilable and antagonistic, necessitating reversal.</p> <p>3. Brokers &wkey;>66 — Liability of Owner for Assigned Share op Commission.</p> <p>Knowledge of a ranch owner that his agent for the sale of the ranch had agreed to assign half his commission to a broker to secure a buyer made the owner and his agent liable to the broker for that part of the commission upoD sale through the broker’s efforts.</p> <p>4. Brokers &wkey;>71 — Rate op Commission.</p> <p>Where a broker was to receive a commission of 2% per cent, on a sale of property for $250,-000, he was entitled, when through his efforts the property was sold for $210,000, to 2y2 per cent, commission on the latter sum, in the absence of a subsequent agreement to receive less.</p>

<p>Appeal from Hunt County Court; H. O. Norwood, Judge.</p> <p>Action by P. L. Humphries against the Missouri, Kansas & Texas Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Raileoads <&wkey;69 — Right of Wat — Conveyances — Estate Acquired.</p> <p>Where a conveyance of a strip/of land to a railroad company, in consideration, of $1 and the construction of the line of railroad through the grantor’s property was in the usual form of a general warranty deed and contained the usual covenants, it vested the railroad company with title to the property, and not merely a right of way across it.</p> <p>2. Injunction <&wkey;lY2 — 'Temporary Injunctions — Dissolution—Verification of Answer..</p> <p>Where, in a suit for an injunction, defendant’s answer cpntained general and special exceptions contesting plaintiff’s right to maintain the action, and defendants also moved to dissolve the injunction on grounds among others, attacking the sufficiency of the petition to state a cause of action, and the court dissolved the injunction, after consideration of the questions of law, the order was not erroneous, though the equities of the bill were not denied under oath, as the statute requiring verification of an answer denying the allegations of a petition for an injunction does not apply to a dissolution on demurrer on full hearing.</p> <p>3. Judgment &wkey;j251(l) — Conformity to Pleading.</p> <p>Where a deed to a railroad company conveyed the fee, and plaintiffs in a suit to restrain such company from extracting oil from the right of way did not sue to reform the deed or allege fraud, accident, or mistake in the execution of the conveyance, the court could not reform the instrument, but must determine the extent of the title conveyed by the recitals in the deed.</p> <p>4. Railroads <&wkey;73(l) — Right of Way — Use of Lands Acquired.</p> <p>Where under its deed a railroad company owned the fee in a strip of land on which its road was constructed, it could not be restrained from extracting oil therefrom, notwithstanding Rev. St. 1911, art. 1164, providing that no corporation shall employ or use its property directly or indirectly for any other purpose than to accomplish the legitimate objects of its creation, or those permitted -by law to he applicable.</p>

<p>Criminal Law <&wkey;1090(14) — Review — Instructions — Record.</p> <p>In the absence of a statement of facts or bill of exceptions, an exception to the court’s charge on circumstantial evidence will not be reviewed, unless the matter is of a very serious or fundamental nature.</p>

<p>1. Pleading <§=^>8(21) — Conclusions — Knowledge.</p> <p>In action for conversion of notes, where plaintiff alleged that he never parted with title to the notes, and that defendant knew such fact, and also knew plaintiff’s purpose in transferring the notes to a third person, and that defendant in collecting the notes knowingly perpetrated a fraud upon plaintiff, the allegations were mere conclusions of the pleader.</p> <p>2. Trover and Conversion <®=»11 — Purchase from Person Other Than Owner.</p> <p>Where notes were delivered to a contractor in consideration of his agreement to build a house and pay the owner a certain sum and to buy the material of a lumberman who knew of the agreement and who signed the contractor’s bond in the absence of allegation that the lumberman did not intend to perform his contract, and that he executed it with the fraudulent purpose of inducing plaintiff to transfer the notes, plaintiff could not recover from the lumberman after he converted the notes.</p> <p>3. Bills and Notes <®=j337 — -Innocent Purchasers — Liability.</p> <p>Where plaintiff absolutely transferred notes to contractor, who agreed to build a house for plaintiff, and the contractor transferred them to a lumberman before maturity, and the notes were negotiable, and plaintiff’s transfer was oy written indorsement, and the lumberman purchased the notes believing in good faith that the contractor had title and converted the notes after having taken initial steps to fix a mate-rialman’s lien on the property from which he desisted after taking the notes, he was an innocent purchaser, and not liable to the owner.</p> <p>On Rehearing.</p> <p>4. Appeal and Error cg=^1039(l) — -Harmless Error.</p> <p>Though the court erroneously held that the pleadings were insufficient, the error was harmless, where the evidence failed to support the theory upon which the pleadings were based.</p>

<p>Appeal from District Court, Wood County; J. R. Warren, Judge.</p> <p>Isadore Jones was convicted of forgery and he appeals.</p>

<p>1.Deeds i©=»112(1) — Construction—Descriptions.</p> <p>AVhere a deed described land by metes and bounds, chain of title, and reference to prior deeds, and by a name which was erroneous, the nominal description could not control, so as to make those purchasing at execution sale of the land described by name innocent purchasers, since they must have known the actual description in the recorded deed.</p> <p>2. Evidence <S=o4G0(6) — Parol— Oonstruction oe Deed.</p> <p>Where a deed described land by metes and bounds, chain of title, and reference to prior deeds, and by name which was erroneous, the testimony of the grantee therein was admissible to explain the deed.</p> <p>3. Deeds <@=»111 — Construction — Evidence —Materiality.</p> <p>Where the land named was sold under execution against the grantee, it was immaterial what were the intentions of tho grantors and grantee, since the land sold under execution was not in fact included in the deed.</p> <p>4. Deeds <§=M12(1) — Constbuction—Descrip-tions — Control.</p> <p>Where a deed specifically described land by giving the chain of title and reference to records, a general description by name could not control.</p> <p>5. Estoppel <®=>19 — Paeties Not in Fault.</p> <p>Since the deed was not calculated to deceive, the grantor was not estopped to deny title of persons who purchased on execution sale under levy against the grantee of the land described by name, and not in fact conveyed.</p> <p>6. Evidence <§=^237 — Admissibility—Admissions op Third Persons.</p> <p>In trespass to try title, acts, admissions, or 'statements of plaintiff’s son pending suit could not be used against her.</p> <p>7. Bis Pendens @=^24(4) — “Innocent Purchasers.”</p> <p>One purchasing land pending suit in trespass to try title was not an “innocent purchaser.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Innocent Purchaser.]</p>

jEt. Price, Judge. Action by J. A. Friedenbloom against J. D. McAfee, in which S. H. Sutherland, executor, was substituted as defendant, the original defendant having died. From a judgment for plaintiff, defendant appeals.

<p>1. PBINCIPAL AND SUEETY @=>136 — CONTRACTS —Extent of Liability — Remedy.</p> <p>Where three different persons, injured in the same accident, sued a jitney bus owner and his surety for personal injuries, securing judgments, which, when paid, exhausted the amount of the surety bond, the benefit of the policy was for fourth claimant as well, and he could have intervened in each suit to secure his share.</p> <p>2. Principal and Surety <§=>136 — Pebsons Entitled to Sue.</p> <p>Where several persons were injured in an accident due to the negligence of a jitney driver, whose surety each notified, and the judgments of three exhausted the amount of the bond, the fourth was still entitled to hold the surety for his pro rata, unless he was guilty of laches in suing surety therefor.</p> <p>3. Principal and Surety <§=^149 — Actions— Reliance of Claimant on Being Inter-pleaded by Surety.</p> <p>While a surety could have interpleaded a fourth claimant on the ground of occupying the position of a stakeholder for all injured, when it became apparent that the claims of the other three might exhaust the bond, yet such claimant, with knowledge of other claims, had no right to assume such would be done, and delay enforcement of his claim until surety was bound by other judgments exhausting the bond.</p> <p>4. Principal and Surety <§=>125 — Equitable Estoppel — Failure to Assert Claim.</p> <p>Where a claimant against the surety of a jitney bus driver knew others injured in the same accident were asserting their claims, and failed to act diligently, leaving the surety to act in the belief that he had abandoned his claim, and pay other claims, exhausting the bond, he was estonped from holding the surety.</p> <p>5. Principal and Surety <@=>156 — Pleading —Claimants to Fund.</p> <p>A plea by bonding company that claimant had waived his rights to share in the indemnity paid to other claimants by permitting their judgments to be collected for the maximum amount of the insurance is sufficient to include negligence of claimant in delaying his suit until after such judgments.</p> <p>6. Principal and Surety <@=>162(2) — Questions for Jury — Claimant’s Right to Fund.</p> <p>Evidence, under a plea by surety that claimant had waived his right to share in indemnity paid to ’other litigants, examined, and held not such as to warrant the court in refusing to submit the same to the jury.</p>

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Suit by L. A. Pierce and wife against the Lone Star Life Insurance Company. Judgment upon peremptory instruction for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Tarrant County ; Bruce Young, Judge.</p> <p>Action by the Standard Savings & Loan Association against L. C. Denman and the L. C. Denman Company. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Boundakies @=37(5) — Establishment by Acquiescence — Sufficiency of Evidence.</p> <p>In an action of trespass to try title, the suit resolving itself into a contest as to the location of a boundary line, evidence held, sufficient to establish the line against plaintiff’s contention by acquiescence.</p> <p>2. Boundakies @=48(2) — Acquiescence—Absence of Doubt as to Tkue Location.</p> <p>Whero there is no room to doubt the true location of a boundary, mere acquiescence in another line does not support a verdict in favor thereof.</p> <p>3. Boundakies @=40(3) — Acquiescence — Question oe Fact.</p> <p>Acquiescence in a boundary is a question of fact for judge or jury.</p> <p>4. Boundaries @=33 — Acquiescence — Presumption.</p> <p>Acquiescence in a boundary affords a strong presumption that the line acquiesced in is the true line.</p> <p>5. Appeal and Error @=756 — Brief Not in Compliance with Rules — Consideration.</p> <p>Appellees’ typewritten brief, consisting of 53 pages, in gross violation of the rules, will not be considered by the Court of Civil Appeals.</p>

<p>Appeal from District Court, Camp County ; It. M. Smith, Judge.</p> <p>Action by James W. Morris against the Ft. Worth Dife Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Railroads &wkey;>350(33) — Death of Person on Trestle — Question for Jury.</p> <p>In action for death of one struck by train on trestle, evidence held to make issue of negligence after discovered peril one for the jury.</p>

<p>1. Remase c&wkey;24(l) — Dueess—Lack op Consideration — AvoinANCE.</p> <p>If a contract between a gas company and a customer avoiding the liability of the gas company for injuries from an explosion was obtained by duress, and was without consideration to her, she was legally entitled, in her action for the injuries, to allege and prove such facts in avoidance.</p> <p>2. Gas &wkey;>20(2) — Explosion—Negligence.</p> <p>In an action against a gas company for injuries from an explosion of gas after removal of the meter, evidence held to authorize the jury to find that the breaking of the pipe in the premises resulted from the company’s negligence.</p> <p>3. Appeal and Error <&wkey;248 — Review—Assignments — Lack op Exceptions.</p> <p>Assignments of error, no exceptions having been reserved, may not be reviewed.</p>

<p>1. Bailroads <§=222(2) — Nuisance—Bound-house.</p> <p>A roundhouse and its operation constituting a nuisance, it was no defense to the railroad in action for damages therefrom that it was more convenient to construct and operate it at that place than another, that in constructing and operating it the railroad neither “took” nor “de- ' stroyed” plaintiff’s property, or that the railroad was not negligent in constructing or operating it.</p> <p>2. Bailroads <§=222(2) — Nuisance—Bound-house.</p> <p>Defendant railroad’s federal charter, though not expressly making defendant liable for “damaging” property, but only for “taking” or “destroying,” and Const. TI. S. Amend. 5, prohibiting “taking” of private property for public use without just compensation, do not relieve defendant from liability for unreasonably damaging adjoining property by soot, smoke, etc., from its roundhouse.</p> <p>3. Appeal and Error <§=907(3) — Presumptions — Findings—Support by Evidence.</p> <p>On appeal by defendant from judgment for real property damages, where there was no statement of facts, but the court found that plaintiff owned the property, and had owned it for more than 20 years, and also found that plaintiff did not introduce any deed or other muniment of title, but testified orally that she owned the property described, and the court stated that he based his finding that she owned it upon that testimony alone, such finding will not be construed as a finding of ownership on plaintiff’s mere oral testimony that she “owned” the property, but would be assumed to be based on oral evidence of possession.</p>

<p>Appeal from District Court, Guadalupe County; M. Kennon, Judge.</p> <p>Suit by Otto C. Grimm and others against Charley Williams and wife. From a judgment for defendants, plaintiff's appeal.</p>

<p>1. Teiai, <&wkey;260(8) — Instructions—¡Refusal.</p> <p>Refusal of trial court to submit affirmatively one of appellant’s defenses was not ground for reversal, where such defense was substantially presented in tbe court’s general charge.</p> <p>2. Evidence <&wkey;128 — Complaints op Pain.</p> <p>In personal injury action against a railroad, it was error to reject testimony of plaintiff’s attending physician that, during the time of treatment, plaintiff repeatedly complained of severe pain in his neck, shoulder, back, and side.</p> <p>3. Appeal and Error &wkey;>1058(3) — Harmless Error — Exclusion op Evidence.</p> <p>Exclusion of testimony of plaintiff’s attending physician, in personal injury action, as to plaintiff’s complaints during treatment, was not ground for reversal, where it was substantially covered by other testimony of the physician, who was examined fully as to plaintiff’s condition, and detailed evidence of injury at the very place where evidence of plaintiff’s complaints would have tended to locate pain.</p> <p>4. Evidence &wkey;>363 — Extracts prom Work, on Surgery.</p> <p>In personal injury action, it was proper to refuse to permit plaintiff to read in evidence extracts from a book written by an authority on surgery.</p>

<p>Appeal from District Court, Dimmit County; J. F. Mullaly, Judge.</p> <p>Action by W. R.~ Stone against C. C. Bums and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Chattel Mortgages <&wkey;138(2) — Priority.</p> <p>The renewal of a chattel mortgage, by executing a new mortgage and discharging the old mortgage of record merely continues the lien, and the renewed mortgage is superior to a chattel mortgage executed before the renewal, but subsequent to the original mortgage.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by J. L. Masters against H. C. Boek and tbe National Surety Company. From judgment for plaintiff, the Surety Company appeals.</p>

H. Strength, Judge. Action by Phillip Strickland against N. J. Dobbs. Judgment for defendant, and plaintiff appeals. Appellee, a dealer in household furniture, sold appellant, a married man, certain furniture for $16, to be paid in semimonthly installments of $2 each.

<p>Appeal from District Court, Karnes County; F. G. Chambliss, Judge.</p> <p>Action by R. H. Fechner and another against Mrs. Pearl Elder, administratrix of W. B. Elder, deceased, in which P. B. Butler, temporary administrator, was substituted as defendant on the death of the original defendant. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.</p>

<p>1. Divorce @=27(1) — Grounds—Cruelty.</p> <p>While a divorce will not be granted on the ground of cruel treatment, where the evidence falls short of full and satisfactory proof of such treatment and outrages as would render the further living together of the parties insupportable, yet it appearing that the defendant husband would leave home and stay away for as-long as two months without letting his wife know where he was, and upon returning home would curse, abuse, and strike her, and would on occasions threaten to shoot her and cut her throat, divorce was properly granted on the ground of cruel treatment.</p> <p>2. Appeal and Error @=51011(1) — Review— Findings.</p> <p>A verdict or finding of fact by the trial court based on conflicting evidence will not be disturbed on appeal, where there was evidence in the record which, if believed, was sufficient to support it.</p> <p>3. Divorce @=54-6 — Cruel Treatment — Grounds.</p> <p>Where a wife provokes her husband to cruel treatment, she cannot be granted a divorce on account of such treatment.</p> <p>4. Divorce @=249(6) — Decree — -Validity—•Community Property.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4634, declaring that the court pronouncing a decree of divorce from the bonds of matrimony shall also decree an order and division of the estate of the parties in such way as court may deem just, but that nothing shall be construed to compel either party to divest himself or herself of the title to real estate, the court on granting a divorce may by that decree provide for the use and occupancy of tho homestead of the spouses by the wife and children of the marriage; such decree not depriving the husband of his title to the land.</p> <p>5. Divorce @=5298(1) — Custody oe Children —Interests oe Child.</p> <p>The trial court in awarding custody of a minor child in divorce proceedings should be controlled and actuated solely by a consideration of the best interest of the child.</p>

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Action by W. H. Swann against the Texas & Pacific Railway Company. From judgment for defendant, plaintiff .appeals.</p>

<p>1. Pleading <&wkey;129(2) — Admission of Allegations — Damages.</p> <p>Where plaintiff alleged certain damages from defendant’s breach of contract to lease land on shares by reason of loss of crops, and defendant replied that he had cultivated the crops in a farmerlike manner, and they had been worth a less sum than that alleged by plaintiff, the mere absence of general or special denial as to the damages did not admit the allegations of the petition as to the amount of the damages.</p> <p>2. Trial <&wkey;374(2) — Findings — Conformity With Pleadings — Counterclaim.</p> <p>Where plaintiff sued for breach of contract, and defendant pleaded a counterclaim and produced evidence thereon, the trial being on special issues which did not include the counterclaim, the court had a right on proper evidence to deduct from plaintiff’s damages, as found by the jury, the amount of the counterclaim.</p> <p>3. Appeal and Error <@=934(2) — Presumptions— Findings.</p> <p>Where plaintiff sued for breach of contract, and defendant pleaded counterclaim which was not submitted to the jury, the trial having been on special issues, the Court of Appeals must assume that the findings of the court were such as to support the judgment rendered.</p>

County; J. A. Ward, Judge. Action by the Jefferson Wholesale Grocery Company against Mrs. B. A. Kelley. From a judgment for defendant, plaintiff appeals. By her deed dated September 12, 1891, Mrs. E. J. Ford conveyed two-thirds of lot 1, block 8, Urquhart’s addition to the city of Jefferson, to Mrs. Kate Kelley, wife of M. Kelley.

<p>Appeal from District Court, Bexar County ; J. T. Sluder, Judge.</p> <p>Suit by Leon Steinle against Nathan Levin. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.</p> <p>Action by the Bankers’ Trust Company against W. A. McCoy. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Histrict Court, Cherokee County; L. D. Guinn, Judge.</p> <p>Suit by G. W. De Berry against Roy Chambers. Judgment for defendant, and plaintiff appeals.</p> <p>D. S. Lewis, by a deed dated July 6, 1914, conveyed 94% acres of land in Cherokee county to L. E. Weeks, wbo by a deed dated January 18,' 1915, conveyed same to H. B. and Lynn Weathersby, who by a deed dated February 12, 1915, conveyed it to appellant and E. E. Flippen. A part of the consideration for the conveyance to Weeks was his two promissory notes payable to Lewis, aggregating $175, and secured by a vendor’s lien retained on the land. As a part of the consideration to Weeks for his conveyance of the land to H. B. and Lynn Weathersby, they assumed the payment of the. notes mentioned above, and as a part of the consideration to them for their conveyance to Flippen and appellant the latter assumed the payment of same. The notes passed into the hands of appellee, who, after they matured, commenced suit thereon in the district court of Cherokee county by a petition filed November 30, 1915. The suit was against one T. B. Weathersby and all the other panties hereinbefore named except Lewis. The recovery sought as against H. B. and Lynn Weathersby and Flippen and appellant was on the assumption by them of the payment of the notes. Citation to appellant on said petition was issued February 7, 1916, to Gregg county, and was served on him in that county March 1, 1916, by delivering to him in person a copy thereof and of said petition. An amended petition was filed April 27, 1916, during the vacation of the court, service of -which was not had on appellant. The only difference, it appears, between the two petitions, was that it was alleged in the amended petition, and was not in the original, that Flippen and appellant had conveyed the land to T. B. Weathersby, and that the deed to the latter had been recorded in the deed records of Cherokee county. There was a judgment by default in favor of Chambers against appellant and other parties defendant, except T. B. Weath-ersby, for the amount due on the notes, and against them and T. B. Weathersby foreclosing the vendor’s lien claimed against the land to secure payment of the notes. The suit resulting in the judgment from which this appeal was prosecuted was by appellant against appellee to enjoin the latter “from causing or allowing a levy to be made” on property of the former by virtue of an execution issued on the judgment in appellee’s favor against appellant and the other parties mentioned, and “from the enforcement” of that judgment, and for- general relief. The grounds upon which appellant based the right he claimed to relief he sought were (1) the failure of Chambers to notify him of .the filing of the amended petition referred to, and (2) proof he alleged he could produce showing that he and Flippen never assumed the payment of the notes sued upon. 'After granting a temporary injunction as prayed for, the court dissolved it, and rendered judgment refusing appellant any relief.</p>

<p>1. Removal of Causes &wkey;>74 — Action on Notes and Guaranty — Interest and Attorney’s Fees.</p> <p>Where the payee sued on notes and against the guarantor for the interest and attorney’s fees accrued and not paid prior to the due date of the notes, the amount in controversy was the amount of the interest and attorney’s fees, and not the amount of the notes, though the guarantor denied its liability and the judgment might be pleaded as res judicata in any future action .against the guarantor.</p> <p>2. Judgment &wkey;>S86(l) — Conclustveness — Res Judicata.</p> <p>The distinction between a judgment operating as estoppel to further litigation of a particular question of fact and one which is a complete bar to a second suit is that the former may be invoked when there is an identity of parties and issues, and the latter only when there is •also identity of subject-matter.</p> <p>3. Removal of Causes <&wkey;>4S — Right to Remove-Separable “Controversy.”</p> <p>To entitle a nonresident defendant to removal of the cause to the federal court under U. S. Comp. St. 1916, § 1010, the controversy as to him must be separable from that against resident codefendants, the word “controversy” meaning matter in dispute, in passing on which the court must look to the cause of action as set out in the petition.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Controversy.]</p> <p>4. Removal of Causes <&wkey;49(2) — Right to Remove — Separable Controversy.</p> <p>To justify a separation of the defendants joined in a suit, it is not enough that they may be, at the election of the plaintiff, proceeded against either jointly or separately, but there must be more than one cause of action.</p> <p>5. Removal of Causes &wkey;>49(2) — Right to Remove — Separable Controversy.</p> <p>In view of Rev. St. 1911, art. 587, as to suing indorsers jointly with the principal obli-gors, and article 1842, providing that no judgment shall be rendered against a surety unless a judgment has been previously or is at the same time rendered against the principal, an action by the payee of a note against the maker, and a guarantor by separate instrument, for interest in default and for attorney’s- fees, brought before the due date of the note, is not separable so as to entitle nonresident guarantor to removal of the cause.</p> <p>6. Corporations &wkey;>338(2) — Contracts — Ultra Yires Acts — Estoppel.</p> <p>A corporation which guaranteed a note and received a benefit therefrom could not set up the ultra vires character of its guaranty as a defense to an action for delinquent interest and attorney’s fees on the note.</p> <p>7. Corporations <&wkey;3S9 — Contracts—Ultra Vires Acts — Estoppel.</p> <p>Evidence held to show that the corporation which guaranteed a. note received a benefit thereunder so as to estop it to assert the ultra vires character of the transaction.</p>

<p>Appeal from District Court, Fannin County; Ben. H. Denton, Judge.</p> <p>Action by Owens Bros, and others against the ¡Southern Surety Company and others. From a judgment for plaintiffs, the named defendant appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Dyttleton, Judge.</p> <p>Suit by W. W. Williams against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Webb County; J. F. Mullaly, Judge.</p> <p>Suit by Eulalia Dominguez De Flores and husband against Filimon Flores. From a judgment for plaintiffs, defendant appeals.</p>

T. Lyttleton, Judge. Action by Helen Campbell Howard and others against the Texas & Pacifie Railway Company. Erom an adverse judgment, defendant appeals. March 29, 1904, E. W. Campbell, then superintendent of the Eastern division of appellant’s line of railway, was crushed 'between two cars forming parts of one of appellant’s trains then near the Union Depot in Dallas.

<p>Appeal from District Court, Gregg County; Daniel Walker, Judge.</p> <p>Suit by A. G. Brown and wife against J. R. Garner. Decree for plaintiffs, and de-</p> <p>fendant appeals.</p>

<p>Appeal from Hopkins County Court; T. J. Tucker, Judge.</p> <p>J. F. Turner caused execution to be levied against certain cotton, and Victor A. Brown filed affidavit and bond to try tifie right of property. Judgment for Brown, and Turner appeals.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Suit by Mary M. Curtis and others against the Southwestern Surety Insurance Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Fraudulent Conveyances <&wkey;174(l) — Title as Between Parties.</p> <p>Defendant, with money received as a gift from his uncle, discharged a note, secured by a mortgage on certain personal property. To prevent the second mortgagee from foreclosing, defendant placed the note in his uncle’s private box at the bank, with which he did business. Instead of having the note marked paid, defendant requested the holder to indorse it without recourse. Meld that, as it was the intention of defendant to discharge the note, and as the moneys which he used for that purpose were his own, the note was not a valid asset in the hands of the uncle, notwithstanding defendant’s purpose to deceive other creditors, and so it did not pass to a legatee under the uncle’s will.</p>

A. Ward, Judge. Suit by A. J. .Sanders against G. H. Carian, J. F. Bedgood, and C. E. Teal, wherein, at the instance of Teal, J. W. Davis was made a party.» From the judgment in so far as in Teal’s favor against him, Davis appeals. By his deed made January 1, 1914, J. F. Bedgood conveyed about one acre of land in Camp county to G. H. Carian, who conveyed a part thereof to appellant Davis, who conveyed the same part to one Hattaway and appellee, Teal.