Volume 238 — South Western Reporter

Suit by Mrs. Mattie C. Patton, J. H. Patton and wife, and Mrs. Eay Patton Cox and husband against the Texas Pacific Coal & Oil Company. Judgment for defendant was affirmed as to Mattie C. Patton, but reversed as to and rendered for J. H. Patton and wife and Mrs. Pay Patton Cox and husband, by the Court of Civil Appeals (225 S. W. 857), and the defendant brings error.

' Suit by the Invader Oil & Refining Company against the City of Eort Worth. Judgment adverse to plaintiff was reversed by the Court of Civil Appeals (229 S. W. 616), and defendant brings error. Reversed and remanded, with instructions as recommended by the Commission of Appeals.

Action by R. C. 'Fisher against the Ginners’ Mutual Underwriters Association. Judgment for plaintiff affirmed by the Court of Civil Appeals (222 S. W. 285), and defendant brings error. Judgments of district court and of Court of Civil Appeals reversed, and judgment rendered for defendant.

Action by James Harrison against the First National Bank of Eewisvi'lle, the Texas Bitulithic Company, and others. From a judgment of the Court of Civil Appeals (224 S. W. 269), reforming and affirming a judgment from which the plaintiff and the last-named defendant appealed, the plaintiff brings error.

Suit by F. E. Day and others against F. W. Townsend and others. Judgment for the plaintiffs was reversed and remanded by the ■Court of Civil Appeals (224 S. W. 283), and the plaintiffs bring error.

Appeal. from Criminal District Court, Williamson County; James R. Hamilton, Judge. Joe Volney was convicted of having unlawful possession of equipment for the manufacture of intoxicating liquor, and he appeals.

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Earl Mobley was convicted of the theft of an automobile, and he appeals.</p>

<p>Appeal from Williamson County Court; F. D. Love, Judge.</p> <p>C. J. Sand’strom was convicted of keeping a bawdyhouse,. and he appeals.</p>

<p>1. Criminal law <&wkey;598(2) — An application for continuance to procure an absent witness held no lack of diligence.</p> <p>In a prosecution for homicide, where defendant relied on self-defense, and applied for continuance to get a witness by whom he expected to prove that the deceased had made threats against defendant’s life, which had been communicated to defendant prior to the shooting, where indictment was filed April 8, subpoena for the witness was issued April 11 and served April 25, and the motion presented on May 12, the first day of the trial, and after a delay of one day was again presented, defendant having procured an attachment for the absent witness directed to H. county, where the witness was claimed to be temporarily located, there was no lack of due diligence.</p> <p>2. Criminal law &wkey;>586, 959 — Discretion to deny continuance not absolute; on motion for new trial for refusal of continuance, diligence in getting witness, materiality, ahd probable, effect considered.</p> <p>The discretion of the trial court to overrule a motion for continuance is not absolute, and, in reconsidering the matter upon hearing a motion for new trial, the sufficiency of the application for continuance in the way of diligence, materiality, and probable effect on defendant’s case are matters for the consideration of the court</p> <p>3. Criminal law &wkey;v11661/2(5)— Service of correct list of jurors on defendant, and postponing trial one day thereafter, makes error in return of sheriff on venire writ immaterial.</p> <p>In a prosecution for murder, where the sheriff in his return to the special venire writ gave a list of jurors summoned, but left blank the space corresponding with the names and number of three, of whom one attended, another filed an affidavit of exemption, and the other was out of the county and not served, a delay of one day and serving on defendant -a correct list of the jurors summoned, as required by Vernon’s Ann. Code Or. Proc. 1916, art. 672, made the irregularity in the return to the writ immaterial.</p> <p>4. Jury &wkey;>55 — Juror to be exempted must testify to facts on which he bases exemption in open court or by affidavit.</p> <p>A juror to be exempted must appear in open court and testify to .the facts on which he bases his exemption or make a written affidavit, and file it with the clerk as provided by Vernon’s Ann. Code Cr. Proc. 1916, art. 676.</p> <p>5. Criminal law &wkey;>l 166[/2(6)— Jury <&wkey;55— Excusing a juror, a state officer, by court without requiring affidavit irregular, but not reversible error.</p> <p>The excusing of a juror, who was a state officer, on his informing the trial judge in advance of the trial that he wished to be exempted, to which the judge assented without requiring his affidavit to be filed, was irregular, but, where it appeared on motion for a new trial that the facts establishing the juror’s exemption existed, was not reversible error.</p> <p>6. Criminal law &wkey;409l (4) — Bill of exceptions objecting in general terms to evidence, part of which is admissible, shows no error.</p> <p>Where bill of exceptions complains of the admission of evidence, some of which is admissible and some of which should have been excluded, the failure to segregate and point out that which is claimed should have been excluded makes the bill too general to show error.</p> <p>7. Homicide <&wkey;>165 — Evidence of disagreement between deceased and his wife held admissible.</p> <p>In a prosecution for murder, in which the contention between defendant and deceased was difficulties between deceased and deceased’s wife, who was defendant’s sister, evidence of the conduct of deceased and his wife toward each other, and their relations, was relevant as showing the state of mind of the defendant and the deceased.</p> <p>8. Homicide <&wkey;>300(l) — Failure to instruct that defendant bad right to arm himself and seek deceased for, an explanation of bis conduct toward his wife held not error.</p> <p>In a prosecution for murder, where no charge was given on the issue provoking the difficulty, and on limiting or qualifying the right of perfect self-defense, the failure to instinct that defendant had a right to arm himself and seek deceased for an explanation of his insulting conduct toward his wife, defendant’s sister, was not error.</p> <p>On Motion for Rehearing.</p> <p>9. Criminal law <©^595 (6) — Refusal of continuance for absence of witness held reversible error.</p> <p>Under Vernon’s Ann. Pen. Code 1916, art. 1143, making admissible proof of threats when one accused'of homicide justifies on the ground of self-defense, in prosecution for murder, where there was a direct conflict as to whether deceased made a hostile demonstration toward defendant, refusal of continuance to enable defendant to get a witness, by whom he expected to prove that deceased had tried to get a pistol, and had threatened to hill defendant, which threats had been communicated to the defendant by the absent witness, was error.</p>

<p>Error from District Court, Hemphill County; W. R. Ewing, Judge.</p> <p>Action by W. D. Waggoner against A. A. Ringle and others. Judgment for plaintiff and certain defendants, and defendant Rin-gle and others bring error.</p>

A. Nabers, Judge. Suit by the Millers’ Indemnity Underwriters against Maggie May Patten and others, to set aside an award of the Industrial Accident Board granting compensation under the Workmen’s Compensation Law. Judgment for defendants, and plaintiff appeals.

B. L. Roy, Judge. In the matter of the receivership' of the Cosbrook Petroleum Company, Theodore Mack, receiver. From a judgment concerning the sale of property, the Continental Supply Company and others appeal.

C. Jeffrey, Judge. Suit by Frank Gaertner against Gerhard Stolle. After hearing temporary injunction dissolved, and, from judgment for defendant, plaintiff appeals.

<p>1. Limitation of actions @=»118(2) — Plaintiff’s failure to issue citation for two years held not excused.</p> <p>Where the only excuse offered for failure to issue citation was not knowing where the defendant resided, and there was nothing to prevent plaintiff from obtaining citation by publication, it fails to show that plaintiff was not negligent in not issuing citation for nearly two years, and that he used all diligence in trying to serve the defendant, in view of Rev. St. art. 1850.</p> <p>2. Limitation of actions <©=>! 18(2) — Mere filing of suit without service of process will not interrupt running of statute.</p> <p>The mere filing of a suit will not interrupt the running of the statute of limitations, but, aside from the initial step of filing the petition, there must be a bona fide intention that the process shall be served at once upon the defendant.</p>

Suit by Charles Carson against C. M. Taylor, J. L. Art, J. C. Straus, and C. B. Woods, in which the three last-named defendants filed a cross-action against plaintiff. Judgment for plaintiff against the first named defendant, and for last three named defendants against plaintiff, and plaintiff appeals.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by E. J. Mitchell and others against the San Antonio Public Service Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Johnson County;* O. L. Lockett, Judge.</p> <p>Action by Mrs. H. A. Thomas against J. T. Alford and another. From judgment for plaintiff, defendants appeal.</p>

R. Ely, Judge. Suit by Mrs. A. Norton and others against the Texas Pacific Coal & Oil Company and another, in which Mrs. Norton took a nonsuit as to her individual claim and the court instructed a verdict in favor of the other plaintiffs against both defendants, and from the judgment thereon the defendants appeal.

<p>1. Eminent domain <&wkey;>238(6) — Statutes governing award by commissioners apply to trial in court on appeal.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, arts. ' 6518, 6520, 6521, governing the award of compensation and damages by commissioners in condemnation proceedings, are also applicable in the trial of the same issues in court upon appeal from the ¿ward of the commissioners.</p> <p>2. Eminent domain <®=»9I — Statutes do not authorize recovery of special damages.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6518, 6520, 6521, governing the award of damages in condemnation proceedings, do not authorize a recovery of any special damages.</p> <p>3. Eminent domain @=390 — Failure to fence right of way not considered permanent injury.</p> <p>The failure of a railroad company to fence its right of way condemned through defendants’ land cannot be considered as a permanent in'jury, since the law penalizes the company for failure to fence and making it liable for stock killed, and the railroad may fence at any time</p> <p>4. Eminent domain <&wkey;222(l) — Refusal of instruction not to consider benefits to community held not error.</p> <p>Where the court had charged the jury the substance of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6518, 6520, as to the estimation of benefits and damages in condemnation proceedings, the omission therefrom of the provision of article 6521 that in estimating either injuries or benefits those which defendants sustained or received in common with the community generally, and which are not peculiar to them and connected with their ownership, should be excluded, was not error, where there was no evidence that the community in general would be benefited by the building of the railroad.</p> <p>5. Trial <&wkey;260( 10) — Requested instruction on measure of damages need not be given after instruction on statutory measure.</p> <p>Where the court in eminent domain proceedings had given a charge on the measure of damages which was in substantial compliance with the statutes, there was no error in refusing defendants’ requested instruction on the same issue.</p> <p>6.'Trial <&wkey;l 94(20) — Requested instructions as to elements of damages held on weight of evidence.</p> <p>In proceedings to condemn a railroad right of way, requested instructions that in assessing damages to the land not taken the jury might consider expenses necessary to restore defendants’ fences, inconveniences occasioned in the use of the land for pasturage and annoyances occasioned by the operation of the trains were properly refused as on the weight of the evidence.</p> <p>7. Eminent domain <&wkey;93 — Intended use by owners cannot be considered in assessing damages.</p> <p>Though the value of the land for any purpose to which it is adapted may be considered in assessing the damages in condemnation proceedings, it is not competent for the owner to show what use he intended to make ’of the property and to recover damages based on such intended use, since such damages are too speculative.</p> <p>8. Eminent domain <&wkey;262(5) — Exclusion of testimony as to destruction of building held not prejudicial to owner.</p> <p>In proceedings to condemn a railroad right of way the exclusion of evidence that the railroad was constructed across a knoll having trees thereon, which was the only suitable building site on the land, and that the site had been destroyed, was not prejudicial to the owners, where the location and the description of the knoll were proven without objection, and also the fact that the right of way cut through the knoll and separated a small portion from the rest, and where the witnesses who were prevented from testifying as to the depreciation caused by the destruction of the knoll did state their estimate as to the depreciation of the market value of the entire tract due to the construction of the railroad.</p>

Error from District Court, Eastland County; E. A. Hill, Judge. Suit by W. W. Crabb and wife against the Texas Pacific Coal & Oil Company and another. Judgment for defendants on directed verdict, and plaintiffs bring error.

<p>1. Limitation of actions <&wkey;55(6) — Cause ot action for injury accrues only when injury sustained.</p> <p>When an act is within itself lawful as to the person who bases thereon an action for injuries to property subsequently accruing from and consequent' upon the act, the cause of action does not accrue till the injury is sustained.</p> <p>2. Limitation of actions &wkey;j55(6) — Time for accrual of cause of action from private nuisance stated.</p> <p>Where a nuisance is permanent in character, and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated, and the statute begins to run upon construction, but when the construction and continuance are not injurious, but may be so, the injury to be compensated is only the damage which has happened, and there may be successive suits for successive injuries, and limitation would not begin to run against actions until the injury occurred.</p> <p>3. Limitation of actions &wkey;a55(7) — Cause of action for impounding waters in street did not accrue until condition resulting caused injury.</p> <p>A cause of action for wrongfully impounding .and turning waters into the street in front of plaintiffs’ residence did not arise, as respects the statute of limitations, until such condition caused injury to plaintiffs’ property and health.</p>

<p>Appeal from District Court, Tarrant County ; R. B. L. Roy, Judge.</p> <p>Suit for injunction by W. S. Neely against George Morgan. From a judgment granting the injunction prayed for, defendant appeals.</p>

<p>I.Shipping &wkey;>24 — Sale held complete when buyer paid amount to attaching creditors under arrangements with owner.</p> <p>Where the owner of a motorboat which had been attached and was advertised for sále for satisfaction of a judgment sold the boat to</p> <p>B. and notified the judgment creditors that, if he paid them $720, they should deliver the boat to him and remit the balance above the amount of the judgment, and B. did pay such amount to the judgment' creditors, there was a completed sale of the boat, by virtue of which B. acquired the title.</p> <p>2. Attachment <&wkey;>294 — Judgment <&wkey;>880 — One buying hoat attached may pay judgment, and is then entitled to possession.</p> <p>One buying a motorboat which had been attached and was advertised for sale in satisfaction of a judgment had the right to pay off the judgment, and, after paying it, had the right of possession, and neither the judgment creditors nor the sheriff could lawfully withhold the boat from his possession.</p> <p>3. Judgment &wkey;e875 — Discharged by payment of amount in excess of judgment and costs.</p> <p>The payment to judgment creditors of an amount in excess of the sum necessary to satisfy a judgment under which an attached motorboat had been advertised for sale extinguished the judgment, and the judgment .creditors, after accepting a check for such amount, had no authority to return it on the ground that they did not know the amount of the judgment and costs, without ascertaining definitely whether the cheek would satisfy their demand, especially where the only uncertain element in the item of costs was the creditor’s own charge for acting as caretaker of the attached boat.</p> <p>4. Judgment <&wkey;>892 — Authority to sell extinguished by payment of judgment before sale.</p> <p>The payment of a judgment after an order for the sale of an attached motorboat was issued, but before the sale, fully and completely extinguished the judgment.</p> <p>5. Attachment <&wkey;>!95 — Sale after payment of judgment void, though sheriff and! purchaser ignorant of payment..</p> <p>A sale of an attached motorboat in satisfaction of a judgment after the judgment was paid was absolutely void, no matter how ignorant or innocent the sheriff or the purchaser may have been.-</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Action by M. H. Kennady against J. Burris Mitchell. From' a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Erath County; J. B. Keith, Judge.</p> <p>Action by D. A. Rogers against Nape Oxford. Judgment for plaintiff, and defendant appeals.</p>

R. Warren, Judge. Action by A. P. Moore’s Sons, Incorporated, against the Early-Foster Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from District Court, Leon County; Carl T. Harper, Judge.</p> <p>Suit by H. M. Black and wife against Thadeas Neyland and wife. From a judgment for plaintiffs, defendants appeal.</p>

'Appeal from District Court, Mitcliell County; W. P. Leslie, Judge. Suit by E. L. Frost and another against J. M. Thomas, E. O. Dreyer, and another. Judgment for defendant Dreyer, after defendants Thomas and another filed disclaimers, and plaintiffs appeal.

R. Ewing, Judge. Suit by L. W. Mathews and others against Mattie Solomon and others. An interlocutory order was made appointing a receiver without notice to defendants, and they appeal.

<p>Appeal from Grimes County Court; R. M. West, Judge.</p> <p>Action by George S. Wood against T. S. Hill. Judgment for plaintiff, and defendant</p> <p>appeals.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Action by the Commercial Acceptance Trust against Victor A. Viel and others. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action by the Wichita County Lumber Company against J. D! Thweatt. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, . Shackelford County; W. R. Ely, Judge.</p> <p>Suit by Mrs. Valina Palm against' Oliver Palm. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Damages &wkey;> 15 — Party injured by breach should be put in as good position as if contract had been kept.</p> <p>For a breach of contract, the general rule is to give the injured party compensation; that is, put him as nearly as possible in as good a position as he would have been in if the contract had been kept.</p> <p>2. Damages <&wkey;23 — Damages naturally resulting from breach of contract and within contemplation should be awarded,</p> <p>The law includes as an element of compensation for breach of contract all such damages as naturally resulted from the breach and may reasonably be presumed to have been contemplated by the parties when the contract was made.</p> <p>3. Sales <&wkey;4!8(l9) — Award of special in addition to actual damages held not an award of double damages.</p> <p>Where plaintiffs sought to recover the difference between the value of the truck delivered and that contracted for as well as their loss of profits by reason of their inability to haul materials in as large quantities as contemplated, the court, in awarding a given sum as actual damages and a further sum as special damages, did not award double damages.</p> <p>4. Sales &wkey;>4l8(l9) — Special damages for loss of profits held not speculative and remote.</p> <p>Where there was evidence that the truck actually delivered was worth at least $1,000 less than that contracted for, that defendant knew the purpose of the purchase and the amount plaintiffs would earn with the truck of the capacity ordered, and that plaintiffs lost at least $200 in profits by reason'of their inability to haul the contemplated quantity of materials, special -damages of $200 in addition to $1,000 awarded as actual damages were not so speculative and remote as to be nonreeoverable.</p> <p>5. Sales &wkey;s4l7 — Failure to prove fraudulent representations held immaterial where no exemplary damages awarded.’</p> <p>In an action for breach of a contract to furnish a truck of a given capacity and power, where the court awarded special damages for loss of profits in addition to actual damages consisting of the difference between the value of the truck contracted for and that delivered, it was immaterial whether plaintiffs proved their allegations that defendant’s representations were fraudulent; the special damages awarded being, not exemplary, but incidental only.</p> <p>6. Appeal and error <&wkey;>!054(l) — Judgment not reversed where supported by competent evidence. .</p> <p>A judgment in action tried to the court will not be reversed for the introduction of incompetent evidence where there is sufficient competent evidence to support it.</p>

<p>1. Courts <@=>121 (5) — When interest sued for is considered in ascertaining jurisdiction.</p> <p>Interest sued for eo nomine as an incident' to a contract is not considered in determining jurisdiction, but, where sued for only as an element of damages arising from a breach of contract or tort, it must be considered.</p> <p>2. Courts <§=>121 (5) — Action for $500 and interest as damages held within the district court’s jurisdiction.</p> <p>Where plaintiff deposited for collection with defendant bank a customer’s draft on another bank for $500, and defendant on collection thereof did not credit such amount to the plaintiff, the action for detention, in which the plaintiff sued for the amount of the draft and damages, was within the jurisdiction of the district court.</p>

<p>Appeal from Hidalgo County Court; George P. Brown, Judge. •</p> <p>Suit by G. M.. Foster against W. F. Matthews. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Vendor and purchaser <@=>351 (I)— Statutory damages for promise made in bad faith not applicable to action for breach of agreement not alleged to have been fraudulently made.</p> <p>Acts 36th Leg. (1919) c. 43, §§ 1-3, as to measure of damages where purchaser has been induced to buy real estate by a fraudulent promise to do some act in the future, held not applicable in purchaser’s action to recover portion of purchase money paid and special damages for vendor’s breach of agreement to make certain improvements, not alleged to have been fraudulently made without the intent to perform.</p> <p>2. Vendor and purchaser <@=>351 (I) — Application of statute as to damages for vendor’s fraudulent representation or promise stated.</p> <p>Acts 36th Leg. (19Í9) c. 43, § 2, as to damages where purchaser has been induced to buy real estate by a false representation of a past or existing material fact or a false promise to do some act in the future not made in good faith, is applicable only when a conveyance of the property has been made and not where there is merely a contract to convey and does not exclude purchaser’s common-law right to recover' damages for vendor’s breach of contract, such as a contract to make,certain improvements, irrespective of fraudulent intent.</p> <p>3. Evidence <@=>442(6) — Parol testimony admissible where written contract was not complete.</p> <p>Where a memorandum was signed by the parties at the time a contract to convey land was entered into with the understanding that a complete and entire contract was to he subsequently executed, parol testimony was admissible to prove vendor’s agreement to make certain improvements.</p>

D. Harvey, Judge. After the district court directed payment of money to C. R. Wharton, attorney for John F. Baber and George B. Dobson, executors of J. E. Galbraith, and on appeal it was held that Baber and Dobson were not entitled, to recovery as representatives of the estate of J. E. Galbraith, and judgment was given vesting the money in the surviving wife of Galbraith, who, under the name of Bessie Campbell McLemore, brought action against George B. Dobson and O. R.…

<p>1. Intoxicating liquors &wkey;5i3 — State law, defining intoxicating liquor, must yield to federal legislation.</p> <p>The Dean Act, fixing the maximum percentage of alcohol in prohibited beverages at 1 per cent., is in conflict with the Yolstead Act, which fixes the maximum percentage at one-half of 1 per cent., and must yield to it, under the Eighteenth Amendment to the federal Constitution.</p> <p>2. Intoxicating liquors ¡&wkey;327(3) — Notes given for cider violating Volstead Act void.</p> <p>Notes given for the purchase price of cider violating the Volstead Act, because containing more than one-half of 1 per cent, alcohol, were void.</p> <p>3. Contracts 138(6) — Illegality of consid-</p> <p>eration for note need not be pleaded.</p> <p>If illegality of notes developed on a trial in an action by payee upon them, the' trial court properly held that the consideration for the notes was illegal, and that they were void, though defendant did not plead such issue.</p> <p>4. Evidence <&wkey;434(I2) — In action on note evidence and pleading of false representations inducing a sale not an attempt to in-graft a warranty on written contract.</p> <p>In action. on notes given for cider, which contained more than one-half of 1 per cent, alcohol, in violation of the Volstead Act, pleading and evidence that defendants bought the cider in good faith on representations made by plaintiff that it could be lawfully sold, and he so warranted it to them, knowing his representations to be false, did not involve an attempt to vary a written contract by a parol contemporaneous agreement; such evidence and allegations being introduced and made as a part of fraud practiced upon defendants.</p> <p>5. Intoxicating liquors &wkey;>327(3) — No duty on purchasers of cider to contest ex parte proceeding to destroy because intoxicating.</p> <p>Purchasers of eider containing more than one-half of 1 per cent, alcohol was not' required to appear in ex parte proceedings to destroy the cider in order to relieve themselves of liability on notes given for it, where seller had entered a plea of guilty in a prosecution for the sale of the eider.</p> <p>6. Evidence &wkey;o207(4) — Admission in criminal proceeding admissible in action on note to show illegal character of eider sold. •</p> <p>In an action on notes given for cider containing alcohol in excess of one-half of 1 per eént. in violation of the Volstead Act, a confession of the seller in open court in a prosecution for selling such cider that the cider contained a prohibited amount of alcohol was admissible on issue as to character of the cider.</p>

<p>1. Appeal and error &wkey;>694(l) — In absence of statement of facts in record, findings of trial judge conclusive.</p> <p>Where no statement of facts was brought up with the record, the findings of trial judge are conclusive.</p> <p>2. Gas <&wkey;l3(6) — Company’s rule for cutting</p> <p>off gas for refusal to pay bills reasonable.</p> <p>The rule that a gas company has the right to cut off the gas for refusal to pay bills when due is reasonable, especially when, by contract between the company and the consumer, the company is given that right and the meter measurement is made the test of the amount of gas consumed, and the meter is of proper construction and has been, kept in proper working order.</p>

<p>1. Insurance &wkey;>(33(l) — Clause inserted subject to approval of commission is not effective before such approval.</p> <p>Under a statute permitting a clause not previously authorized by the insurance commission to be inserted in a policy subject to the approval of the commission, a clause so inserted does not affect the rights of the parties until it has been so approved.</p> <p>2. Insurance <&wkey; 133(1) — Uniform policy statute is intended to govern in every respect fire insurance contract.</p> <p>Rev. St. 1911, art. 4891, as amended by Acts 31st Leg. (1919) 4th Called Sess. c. 8, § 16, and by Acts 33d Leg. (1913) c. 106, § 17 (Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4891), requiring the insurance" commission to establish a standard form of fire policy and of clauses and provisions to be attached thereto, ■ and requiring the commission also to approve all provisions and clauses thereafter attached to policies which have not been previously approved, was intended to provide in every respect for the contractual relationship that could be entered into between fire insurance companies and policy holders, and does not authorize the insertion therein of clauses not covered by the standard.policy and clauses and not approved by the commission.</p> <p>3. Insurance <&wkey;>l33(l) — Requirement of identical provisions is only effective preventive of discrimination.</p> <p>The purpose of the insurance laws to prevent discrimination between property owners by fire insurance companies can only be effectually accomplished by prescribing identical conditions for all policies covering risks of the same class.</p> <p>4. Insurance <&wkey;l33(f) — Unauthorized exemption of liability for fires originating in moving picture machine is void.</p> <p>A clause, inserted in a policy covering property in a moving picture theater, relieving the insurer of liability for damage to the machines and attachments from fire originating within the machines which had not been approved by the insurance commission, is void, and policy will be construed as though that clause had never been attached thereto, especially where insured paid the highest rate because the risk was extrahazardous.</p> <p>5. Insurance <&wkey;>552 — False proof of loss no defense, unless insurer was prejudiced thereby.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4949, prohibiting clauses in policies making misrepresentations in proofs of loss a defense unless the insurance company was thereby misled or caused to waive some valid defense to the policy, the omission from the proof of loss of items of damage to certain property for the reason that one item was overlooked in making up the proof of loss, and that the damage covered by the other item had not been discovered when the proof was made, does not prevent recovery for those two items, where the company resisted payment of larger items contained in the proof of loss, so that a suit on the policy would have been necessary in any event, and the company did not show that it was in any way misled by the omission of the items in controversy.</p> <p>6.Insurance <&wkey;495(I) — 'Three-fourths value clause is illegal.</p> <p>The provision in a fire insurance policy that the insurer shall be liable only for three-fourths of the market value of the property insured at the time of the fire violates Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4893, prohibiting a policy making the insured liable as coinsurer with the company, and is void.</p>

<p>I.Depositions <@=»73 — Return of deposition held in substantial compliance with the statute.</p> <p>Where person who received deposition from the notary public who took it handed it to an attorney for one of the parties, in the district court room, who, in, his presence and sight, immediately handed it to and filed it with the district clerk, and where both such person and such attorney made affidavits stating such facts, the return was in substantial compliance with Rev. St. art. 3662.</p> <p>2. Judgment &wkey;>256(6) — Entry of judgment for amount of pipe line alleged, notwithstanding verdict finding greater amount constructed, held not error.</p> <p>Where the jury found more due than plaintiff had alleged, the action of the court in receiving remittitur offered by the plaintiff and in granting the plaintiff a judgment for the amount alleged by him held not error, as against contention that it constituted a substitution of a finding by the court for the finding by the jury in violation of Rev. St. arts. 1986 and 1990.</p> <p>On Motion for Rehearing.</p> <p>3. Appeal and error <&wkey;742 (I)— Assignments of error not followed by appropriate propositions and statements regarded as abandoned.</p> <p>Assignments of error not followed by appropriate propositions and statements from the record in support thereof are to be regarded as abandoned and not before the appellate court unless embodying fundamental error.</p>

<p>1. Injunction <&wkey;46l — Dismissal on verified answer denying material allegations of' petition is in discretion of court.</p> <p>Though a verified answer to a petition for an injunction, denying its material allegations, authorizes a dissolution of the writ, whether the writ shall be dissolved is within the sound discretion of the court.</p> <p>2. Injunction <&wkey;l 18(1) — Petition must negative inferences from facts stated which would preclude relief.</p> <p>The allegations of the plaintiff in his petition for an injunction are to be taken most strongly against him, and the elements essential to entitle him to relief should be sufficiently certain to negative every reasonable inference from the facts stated which would preclude the relief sought.</p> <p>3. Eqiiity &wkey;339(l) — Where equity acquired jurisdiction by petition and answer, it has jurisdiction to settle a case on its merits.</p> <p>Where a petition for an injunction, together with the answer of the defendant, presented material issues involved in a controversy between the parties of a claim for the payment of money, the court, having acquired jurisdiction, was 'entitled to settle the merits of the controversy.</p> <p>4. Injunction <&wkey;l44 — Petition held insufficient to support granting of injunction.</p> <p>In a petition to the district court of M. county for an injunction to prevent an action to collect an account before a justice of the peace in T. county, allegations that a previous suit in M. county to enjoin the collection of the account was still pending, without setting out the copy of the original petition for the injunction or the answer thereto and copies of orders of the court showing that the suit is pending, are insufficient to authorize granting an injunction.</p>

<p>1. Damages &wkey;>32 — Future effects of personal Injury need not be permanent.</p> <p>To recover for future effects of a personal injury, it is not necessary that they be per-, manent.</p> <p>2. Appeal and error <&wkey;>I 170(9') — Charge as to future pain held not prejudicial in view of small amount awarded.</p> <p>In an action for assault and battery, a charge permitting the jury to consider' future pain in assessing damages held not prejudicial, under the evidence, in view of Court of Civii Appeals rule 62a (149 S. W. x), though future physical pain was neither pleaded nor proved, where the jury awarded only $500.</p> <p>3. Trial &wkey;>352(!)— Special issue held not erroneous as assuming plaintiff was injured.</p> <p>In an action for assault and battery, a special issue as to the amount of money which would compensate plaintiff for the injuries sustained held not on the weight of the evidence as assuming that she received injuries.</p> <p>4. Trial <&wkey;352(I) — Special issue assuming injuries held not erroneous in view of evidence.</p> <p>In an action for assault and battery, a special issue as to • the amount of money which would compensate plaintiff for her injuries held not erroneous even if it assumed she was injured, in view of the uncontradieted evidence.</p> <p>5. Appeal and error <&wkey;2'l8(2) — Failure to submit issue not considered where submission not requested.</p> <p>An assignment of error in failing to submit an issue of fact cannot be sustained where appellant did not request the submission thereof as a special issue.</p> <p>6. Appeal and error &wkey;>930(3) — Issue not submitted presumed resolved in favor of'judgment.</p> <p>It will-be presumed that the trial court resolved an issue of fact not submitted to the jury in favor of the judgment.</p> <p>7. Assault and battery <&wkey;26, 43 (6) — Proximate cause not an issue requiring instruction; perpetrator presumed to have intended consequences.</p> <p>In an action for willful, aggravated assault and battery, proximate cause is not an issue requiring instruction to jury, and the perpetrator of the act is presumed to have intended the consequences.</p> <p>8. Carriers <&wkey;>283(3)— Street car company is liable for aggravated assault on passenger by employé.</p> <p>A street car company is the perpetrator and is responsible for an unauthorized and willful, aggravated assault on a passenger by its employé.</p>

A. Childress, Judge. Action by the Beatty-Folsom Company against Enoch Edwards, with cross-action by defendant against plaintiff and the Beeville Bank & Trust Company. Judgment for the bank against defendant and his sureties, and for defendant on his cross-action against the Beatty-Folsom Company, and the Beatty- ■ Folsom Company and defendant appeal.

Error from District Court, Bexar County; J. T. Sluder, Judge. Action by the Galveston Auto Sales Company against Thomas B. Powers and P. C. Rahlmann. From an order denying a motion of defendant Rahlmann to correct the judgment rendered for plaintiff so as to permit him to return to plaintiff the automobile sequestered in the action which that defendant had replevied, the defendant Rahlmann brings error. Affirmed.

<p>1. Courts &wkey;>63 — Cause tried June 29, 1920, held within the jurisdiction of the district court of Jim Wells county.</p> <p>Cause tried June 29, 1920, held within the jurisdiction of the district court of Jim Wells county as against contention that act of Thirty-Seventh Legislature, changing the terms of the courts of different counties, was unconstitutional in that it deprived Duval county of two terms for the first year, since the court of Jim Wells county on June 29, 1920, was authorized to try the cause under either the old or the new law.</p> <p>2. Carriers <&wkey;228(5)— Evidence held to prove negligence in confusing a shipper’s cars with those of another.</p> <p>Evidence held to sustain finding that carrier was negligent in confusing a shipper’s cars with cars of another shipper containing cattle of an inferior grade.</p>

Error from District Court, Titus County; R. T. Wilkinson, Judge. Suit by Rosetta A. Childress against the Western Mutual Eire Insurance Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from District Court, Wichita County; P.. A. Martin, Judge.</p> <p>Action by J. C. Hodges against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial. "</p>

<p>Venue <&wkey;>l8 — Suit held maintainable in county from which defendant was preparing to</p> <p>move.</p> <p>Where defendant had sold his farm, on which he had resided for many years, and had contracted to purchase land in another county, possession of which was not yet delivered, and had returned to the former county to get his goods and the other members of his family, who were still there, when citation was served upon him in a suit in the former county, defendant is not entitled to the privilege of being sued in the county of his new residence.</p>

<p>1. Dismissal and nonsuit &wkey;>24 — Plaintiff may discontinue as to parties not served, particularly if unnecessary.</p> <p>Since the statute permits plaintiff to discontinue as to defendants not served and proceed against those that are, it was not ground for abating the action that plaintiff dismissed as to some defendants not served, where there was no allegation showing that such defendants were necessary parties or had an interest in the subject-matter which would make them necessary parties.</p> <p>2. Mines and minerals &wkey;»78(7)— Petition in suit to cancel, forfeit, and rescind lease held not subject to general demurrer.</p> <p>In an action to cancel, forfeit, and rescind an oil lease contract and remove cloud from title, and in the alternative to have a lease contract declared void, held that the petition was not subject to a general demurrer, in that it did not state that plaintiffs owned the lands within the lease, and did not tender shares of the capital stock of a defendant oil corporation, an assignee of the original lessees.</p> <p>3. Mines and minerals <&wkey;>78(7) — Exception to petition to cancel lease alleging meaning of term used therein held properly overruled.</p> <p>Where a lease recited that it was one of several from different parties to lessees covering “land in the same general locality,” and obligated lessees to begin a well in “said locality” within a year, and prosecute it to completion with due diligence, and did not otherwise define or state what was meant by the term “lands in the same general locality,” an exception to a petition to cancel it, alleging that the term “general locality” meant a well near enough to plaintiff’s lands to prove their mineral qualities, and that it was so understood by both parties, made on the ground that it sought to ingraft on the contract conditions, terms, and meanings contrary to the plain import, and not contained in the instrument itself, nor warranted by its reading, and contradicting its terms and meaning, was properly overruled.</p> <p>4. Evidence &wkey;>!58(28) — Bank cashier’s testimony held not subject to objection that books were best evidence.</p> <p>In an action to cancel an oil lease contract, testimony of the cashier of the bank to which the contracts provided rentals could he paid in lieu of the digging of an oil well that, according to the bank’s records and books, the rentals were not deposited in the- bank to the credit of either of the plaintiffs, 'held not subject to the objection that the books were the best evidence.</p> <p>5. Mines and minerals &wkey;>78(7) — In an action to cancel lease, testimony of witness as to what was done in drilling a test well held not objectionable because he was a stranger to lease contract.</p> <p>In an action to cancel a lease requiring the drilling of a well in the same general locality as the leased premises within a year, testi-</p> <p>mony of a witness as to what was done in putting down a test well held not objectionable on the ground that he was not a party to the lease and held no conversation with reference to the same prior to its execution, or was not a party to the suit, or had no land leased to the defendants, and being a stranger to the contract; he having stated in answer to a question as to whether when the lease was executed anything was said by defendants as to where they were going to drill that he never heard anything about any exact locality.</p> <p>6. Mines and minerals <&wkey;78(7) — In an action to cancel á lease involving location of well in “general locality,” admission of testimony of a witness as to what defendants meant by term held not error.</p> <p>In an action to cancel an oil lease involving the question of the interpretation of a provision requiring the beginning of a well within a year on “land in the same general locality” as the leased premises, there was error in permitting a witness to state that he knew from the statement of defendants what they meant by the term “general locality,” or where they intended to place the well, and permitting him to state such location; the record showing that he was not permitted to state what the parties meant, but that he was permitted to state that he went with a defendant and a geologist to show them the lines of a certain section and other lands, and, that after looking them over, such defendant said they were going to put the well on such section, and that he was with them when they made the location.</p> <p>7. Mines and minerals <&wkey;78(7) — Burden placed on plaintiffs suing to cancel lease to show alleged meaning of term as to location of well and failure to drill within time agreed on.</p> <p>In an action to cancel an oil lease, providing for the drilling of a well in the “general locality” of the leased premises, within one year, held• that the burden was on plaintiffs to show the meaning of the term “general locality” to be as alleged, and that no well was commenced as the agreement was alleged to be and within the time agreed upon, and, if commenced, was not prosecuted with diligence.</p> <p>8. Appeal and error t&wkey;'93l (4) — In absence of evidence, it cannot' be presumed that the court found a term used in lease to mean as alleged by plaintiff.</p> <p>In landlord’s action to cancel oil lease contract for lessees’ failure to sink a well within one year on “lands in the same general locality” in the absence of any evidence as to the meaning of the quoted term, it cannot be presumed on appeal that the court found the meaning to be as alleged by plaintiff.</p> <p>'9. Mines and minerals t&wkey;>78(7) — Evidence held insufficient to warrant canceling oil lease.</p> <p>Evidence held insufficient to justify a decree rescinding and canceling the contract for an oil lease.</p> <p>Appeal from District Court, Ward County; Chas. Gibbs, Judge.</p> <p>Suit by A. G. Dooley and others against the Sunshine Oil Corporation and others. Verdict and judgment for plaintiff for possession of the land in controversy and for cancellation of a lease, and the Sunshine Oil Corporation and certain other defendants appeal. Reversed and remanded.</p>

Appeal' from District Court, Jasper County; V. IT. Stark, Judge. Suit by Ratcliff & Lanier against the Citizens’ National Bank of Jasper and another. Judgment for plaintiffs against named defendant and named defendant appeals.

B. Pirkey, Judge. Action by T. J. Coleman against the St. Louis Southwestern Railway Company of Texas. From judgment for plaintiff, defendant appeals. This was a suit by appellee against appellant to recover the value of a mule owned by the former and killed by employes of the latter, in which judgment was rendered for appellee.

<p>1. Parties <&wkey;>95(5) — Process &wkey;s6 — Petition amended by substituting individual members’ names, after answer to merits, without citation of defendants.</p> <p>While a partnership is not a legal entity and must sue in the name of the individual partners, an original petition filed in the firm name is subject to amendment, even after answer to the merits without new citation to defendants.</p> <p>2. Limitation of actions <&wkey;>!2l(2) — Filing amended petition not beginning of a new action within statute.</p> <p>Where a pleading was amended to prosecute an action in the names of partners instead of the firm name, the filing of the amendment was not the beginning of a new action, and the running of limitations was arrested by the original petition.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>On rehearing. Former opinion 235 S. W. 202 set aside.</p>

Action by Frank Blair and others against Ed Paggi and others. A judgment for defendants was affirmed by the Court of Civil Appeals (219 S. W. 287), and plaintiffs bring error. Reversed and remanded.

Suit by A. E. Love against the Rockwall Independent School District. A judgment denying an injunction was affirmed by the Court of Givil Appeals (225 S. W. 263), and plaintiff brings error. Affirmed.

Suit by the Lumbermen’s Indemnity Exchange and another, insurance carriers, against Susie Galloway and another, to set aside an award of the Industrial Accident Board awarding compensation for the death of the named defendant’s minor son, Ernest Hadnot, the employee. From judgment of the Court of Civil Appeals (227 S. W. 586) affirming judgment for plaintiffs, defendants bring error.

<p>Appeal from District Court, Jones County; W. R. Chapman, Judge.</p> <p>Dave Chapman was convicted of murder, and he appeals. On motion for permission to withdraw appeal.</p>

• Suit by Osear J. Hamil against the Texas Pacific Coal & Oil Company and another, in which certain other parties intervened. From a judgment for plaintiff, defendants and the interveners appeal.

O. McKinsey, Judge. Action by W. P. Clark and others against the W. C. Belcher Land Mortgage Company. Judgment for the plaintiffs after trial on agreed statement of facts, and defendant appeals.

<p>1. Street railroads <@=>99 ( 10) — Failure to look and listen not always contributory negligence.</p> <p>Failure to look and listen on approaching a street railroad crossing is not always contributory negligence.</p> <p>2. Street railroads <@==>99(5) — Buggy driver held not negligent in driving on track.</p> <p>A negro buggy driver turning into an intersecting street to avoid a collision with an automobile driven by a white man held not negligent in driving onto a street car track without looking in the direction of an approaching car, the motorman of which failed to sound the customary warning.</p> <p>3. Street railroads <@=>114(9) — Evidence held to show negligence in not avoiding collision.</p> <p>In an action for injuries from a street car collision, evidence held sufficient to justify a finding that the motorman discovered plaintiff, in his buggy, on the track in time to avoid hitting him.</p> <p>4. Trial <@=>105(2) — Hearsay evidence admitted without objection may be considered.</p> <p>In an action for injuries from a street car collision, plaintiff’s testimony as to the distance, as measured by defendant, to where the motorman said he discovered plaintiff, admitted without objection, may be considered, though hearsay, and not res gestee.</p> <p>5. Street railroads <@=>81 (5) — Lookout required.</p> <p>It is the duty of a motorman to keep a lookout ahead.</p>

P. Leslie, Judge. Suit by O. L. Wilkirson against Jack Yar-brough and the Continental State Bank of Sweetwater, in which the first-named defendant filed a cross-action. Judgment for defendant bank discharging it from liability to either of the parties, and for named defendant on the cross-action, and plaintiff appeals.

E. Ashe, Judge. Proceeding under the Workmen’s Compensation Act by Mrs. Regina Boudreaux for the death of her husband,' opposed by the Gulf Production Company, subscriber, and the Texas Employers’ Insurance Association. An award of weekly compensation by the Industrial Board was made an award in gross by the district court on review, and the Insurance Association appeals.

<p>Appeal from District Court, Fannin County; Ben H. Denton, Judge.</p> <p>Suit by W. B. Pierce and another against 6. W. Baker, Jr. Judgment for defendant, and plaintiffs appeal.</p> <p>The suit was brought against the appellee by appellants, heirs at law of R. N. Pierce, deceased, to recover on a vendor’s lien noté for $1,000, dated December 24, 1918, and payable on or before January 1, 1920, to R. N. Pierce, and to foreclose the vendor’s lien against the land.</p> <p>The appellee answered by general denial, and specially pleaded that he had fully paid all the principal and interest of the note during the month of January or February, 1919, upon the agreement that he could pay off said note at the time it was so paid, and that at the time he made the payment there was executed, acknowledged, and delivered to him a written release deed acknowledging payment of the note, and releasing the lien against the land, and which release deed was by the appellee filed and caused to be placed of record in the deed records of Fannin county on May 9, 1919.</p> <p>The appellants by supplemental petition replied to the defendant’s, answer by general denial, and specially pleading that the release deed pleaded by the defendant was intended by the parties thereto for a release of two $500 notes given as a part of the consideration of the purchase money under a former and different conveyance of land by H. G. Dulaney, and that neither the defendant not the plaintiffs were parties to that conveyance, and that said release deed, through mutual mistake of the parties thereto, expressed and described the note sued on instead of the two $500 notes, and that its execution was on account of a mutual mistake of the parties thereto.</p> <p>In accordance with the verdict of the jury a judgment was entered in favor of the defendant.</p> <p>The court submitted the case to the jury upon- the single special issue as follows:</p> <p>“Question 1. Do you find from the evidence that the note sued on in this case has been paid by G. W. Baker, Jr.? (Answer Yes or No.) The burden of proof is on the plaintiffs to show by the preponderance of the evidence their right to recover in this case. You are the judges of the weight of the testimony and of the credibility of the witnesses.”</p> <p>The jury answered the question, “Yes.”</p> <p>The plaintiffs in the suit introduced in evidence the note sued on and described in their pleading, signed by W. H. Gilley. R. N. Pierce was the legal owner and holder of the note, and plaintiffs were the owners after R. N. Pierce died, being his heirs. And it was shown by a deed, signed by H. G. Du-laney and wife, that said grantors conveyed on August 17, 1918, to W. H. Gilley the land in suit, about 3 acres in the town of Ector,. in Eannin county, the consideration being, among other things, the note sued on, and a vendor’s lien was expressly reserved. On December 7, 1918, W. H. Gilley, joined by his wife, by deed conveyed the same land to G. W. Baker, Jr., the defendant. The deed recites the consideration of $3,500 paid and to be paid by G. W. Balter, Jr., as follows: $500 cash “and the assumption of a $1,000 note payable to R. N. Pierce,” and one note of even date for $2,000, due January 1, 1919, A vendor’s lien was expressly retained in the deed.</p> <p>The defendant offered in evidence a release deed to W. H. Gilley signed by R. N. Pierce on December 24, 1918, reciting that on August 17, 1918, H. G. Dulaney and wife, by deed conveyed to W. H. Gilley three acres of land in the town of Ector, retaining a vendor’s lien to secure payment of a note for $1,000 due January 1, 1920, and that such note had been paid to R. N. Pierce, the legal owner and holder of the note, and acknowledging payment of the note and discharge of the lien. The release deed was recorded May 9, 1919. And the defendant further introduced a great deal of evidence tending-to show that he had in fact paid the note. The plaintiffs introduced a great deal of evi-' dence tending to show that the release was executed by reason of a mistake, and that the note was not in fact paid by the defendant, but was - owing by him.</p> <p>A sharply disputed and balanced issue of fact arises in the evidence as to whether or not the note sued on was paid and the release deed executed by reason of a mistake.</p>

<p>(.Trial <@=>191 (10) — Instruction held to assume no notice was given employee of starting machinery.</p> <p>In an action for injuries to a railroad employee, an instruction authorizing verdict for plaintiff if the jury found such injuries were occasioned by the act of another employee, who was operating the machine on which defendant was working, in starting the machine without notice or warning to plaintiff that he was about to do so, was. objectionable as assuming that the machine was started without notice or warning to the plaintiff, if that was a controverted issue in the ease.</p> <p>2. Trial <@=>191(10) — Weakness of defendant’s evidence d'oes not justify an instruction assuming contrary facts.</p> <p>An instruction assuming that a machine was started without notice or warning to plaintiff employee was erroneous, where the absence of such notice was an issue under the pleadings, and the evidence on behalf of defendant that notice was given, though weak, was sufficient to take that issue to the jury.</p> <p>3. Trial <@=>191 (10) — Instruction may not assume a duty to warn, where there is evidence to show no duty.</p> <p>In an action for injuries to a railroad employee, evidence that it was the custom for gome one to tell the operator of the machine when they were ready to have it started, and for all of them to get out of its way, is sufficient to warrant the jury in finding that the operator of, the machine owed no duty to warn other workmen before he started the machine, so that an instruction assuming that he did owe such duty was erroneous.</p> <p>4. Trial <@=>191(10) — Instruction held to assume machine was started without ascertaining safety of plaintiff.</p> <p>An instruction, predicating a verdict for plaintiff on a finding his injuries were occasioned solely upon the act of another employee in starting a machine before seeing that plaintiff was in a position of safety, assumed that the machine was started before the operator ascertained that plaintiff was in a position of safety.</p> <p>5. Trial <@=>191(10) — Instruction held not erroneous as assuming duty to see plaintiff was in place of safety.</p> <p>An instruction, predicating assumption of risk on a finding that plaintiff knew the machine would be started without first seeing that he was in a place of safety, was not erroneous as assuming that it was the duty of the operator of the machine to see that plaintiff was in a place of safety before starting the machine.</p> <p>6. Master and servant <@=>291 (13) — Instruction on foreseen dangér from starting dangerous machine without warning held properly refused.</p> <p>Where the court had properly defined negligence and proximate cause as used in the instructions, and it appeared from the evidence that the machine by which plaintiff was injured was necessarily dangerous to a person who was in close proximity thereto when it was started, it was not error to refuse an instruction requested by defendant that, unless they believed an ordinarily prudent person, situated as was the operator of the machine, could have reasonably foreseen and anticipated injury from starting the machine without: warning to those in proximity thereto, they should find for defendant.</p> <p>7. Trial <@=>260(8) — Requested instruction on contributory negligence held covered.</p> <p>It was not error to refuse defendant’s requested charge on contributory negligence, where one paragraph of the court’s general in-, structions correctly presented that issue, and other paragraphs required a finding that plaintiff’s injuries were occasioned solely by defendant’s negligence.</p> <p>8. Negligence <@=>101 — Instruction on employee’s contributory negligence held erroneous under federal act.</p> <p>Where it was conceded that plaintiff and defendant were both engaged in interstate commerce at the time of the plaintiff’s injuries while in defendant’s employ, a/ requested instruction on contributory negligence, which directed a verdict for defendant if the jury should find such negligence, was erroneous, • since such negligence under the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) could only reduce the recovery proportionately and not bar all relief. 1</p> <p>9. Trial @=3228(2) — Instruction permitting recovery for plaintiff should conclude with saving reference to other instructions as to the defenses raised.</p> <p>In an action for injuries to a servant, an instruction, stating the findings which entitled plaintiff to recover without referring to the defenses of assumption of risk and contributory negligence, should conclude with a saving clause referring to other instructions on those issues.</p> <p>10. Trial <@=>186, 191(1) — Instructions should not be considered to be on the facts unless they clearly are.</p> <p>The court should assume that jurors are men of average intelligence and that they will use such intelligence in construing the instructions, and should not hold an instruction erroneous as assuming facts or as a comment on the facts on highly technical and refined deductions therefrom, but only where the language employed is,' within its own terms, clearly a charge or comment on the weight of the evi- ' denee.</p> <p>11. Damages <@=>173(0— Discharge of plaintiff for fraud on defendant isvnot admissible to ' test ability to labor.</p> <p>In an action for injuries to an employee, testimony by plaintiff that he was discharged by defendant because he was carrying “dead . men’’ on the pay roll and receiving some of the money was not competent on the issue of plaintiff’s ability to labor and to earn money.</p> <p>12. Witnesses <@=>370(5) — Discharge of plaintiff for fraud on defendant competent to show bias.</p> <p>In an action for injuries to an employee, testimony, on cross-examination of plaintiff, that he was discharged by defendant because he was carrying “dead men” on the pay roll and receiving the money, was admissible to 'show bias or prejudice by plaintiff against defendant.</p>

R. Bishop, Judge. Action by Peter G. Adams and others against R. E. Seagler and others. Prom judgment enjoining defendants from proceeding further with certain contracts and dissolving a temporary injunction as to other contracts, defendants appeal.

• Appeal from District Court, Harrison County; P. O. Beard, Judge. Suit by Rix Rutland to enjoin a multiplicity of suits by W. W. Terry and another. From an order granting a temporary injunction, defendants appeal.

L. Manry, Judge. Action by P. B. Henderson, as guardian of Tom Moore, alleged to be non compos mentis, against the West Lumber Company, in which the alleged incompetent intervened as plaintiff after he was adjudged to have recovered his sanity. Judgment for the plaintiffs, and defendant appeals.

<p>1. Trial <&wkey;>352(4) — Special issue as to herding sheep and cattle on plaintiff’s land erroneous where there was no evidence of herding cattle.</p> <p>In an action for trespass on plaintiff’s land, the submission of a special issue as to whether defendant or his employees had herded sheep and cattle, or either, upon plaintiff’s land, was erroneous, where there was no evidence that defendant had herded cattle on such land.</p> <p>2. Set-off and counterclaim &wkey;>34(3) — Cross-action for trespass by plaintiff’s cattle is not connected with action for trespass by defendants.</p> <p>In an action for trespass by defendant’s cattle upon plaintiff’s land in a designated pasture, a cross-action for trespass’ by plaintiff’s cattle upon defendant’s land in that pasture was not incidental to or connected with the plaintiff’s cause of action and was not a proper cross-action.</p> <p>3. Evidence &wkey;>3!7(2) — Testimony employee of defendant told plaintiff he was instructed to crowd plaintiff off is hearsay.</p> <p>In an action for trespass by defendant’s cattle, testimony by plaintiff that an employee of defendant stated he was instructed by defendant to crowd plaintiff off of his land should have been excluded as hearsay.</p> <p>On Behearing.</p> <p>4. Appeal and error <&wkey;>1062(1)— Submission of issue unsupported by evidence held prejudicial in view of other findings.</p> <p>Error in submitting a special issue as to whether defendant herded his sheep and cattle on plaintiff’s land, when there was no evidence of herding cattle, was prejudicial to plaintiff, where the jury, by other findings, stated the value of the pasturage consumed by defendant’s sheep and cattle and the judgment for plaintiff was based thereon.</p>

<p>1. Municipal corporations <@=623(l) — Power to abate nuisance held not to give city power to judicially determine what is a nuisance.</p> <p>The grant of power in a city charter to declare dilapidated buildings nuisances and to direct them to be repaired, removed, or abated does not carry with it power to judicially determine whether the thing complained of is a nuisance.</p> <p>2. Nuisance <§cw83 — Person destroying property as a nuisance without judicial determination acts at his peril.</p> <p>An individual, municipal corporation, or public officer destroying property as a nuisance proceeds at his peril unless the thing destroyed has first been judicially condemned as a nuisance.</p> <p>3. Constitutional law <&wkey;79 — Determination by city council of existence of nuisance held not “due process of law.”</p> <p>Determination by a city council that a building is a nuisance, though upon notice and opportunity to defend, is not “due process” within Const, art. 1, § 19, as the city council cannot exercise judicial functions, in view of Const, art. 5, § 1, giving to the Legislature the exclusive power to establish judicial tribunals in addition to those provided by the Constitution.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]</p> <p>4. Constitutional law <&wkey;3l8 — City charter held not to give city council judicial power to declare and abate nuisances, so as to constitute “due process of law.”</p> <p>A charter granting to a city council power to declare dilapidated buildings to be nuisances and to direct' the same to be repaired, removed, or abated, as council shall prescribe, was the grant of a legislative and ministerial power for the protection of the public health and safety, and not a judicial power to declare and'abate nuisances, so that exercise of such power as a judicial function was not due process of law.</p> <p>5.Municipal corporations <&wkey;623(l), 742(6) —Judgment of city council as to nuisance held not conclusive in an action for damages.</p> <p>In an action for damages for the destruction ' of a building, a determination by a city council that the building was a nuisance was not conclusive upon the issue of nuisance, and that question and the value of the property remaining after the building had been destroyed were questions of fact for the jury.</p>

<p>I.Appeal and error @=662(2) — Recital in appeal bond does not establish fact of motion for new trial and ord'er, if record silent thereon.</p> <p>The filing of an appeal bond is an act independent of any proceeding which occurred anteribr thereto before the court in. the disposition of a case and recitals therein cannot be accepted to establish proceedings of motion for new trial and order thereon which the record failed to reflect.</p> <p>2. Appeal and error &wkey;28l (I)— Motion for new trial necessary to appleal except on fundamental error, and in certain cases • stated.</p> <p>Rule 71a (145 S. W. vii) for district and county courts, requires a motion for new trial to be filed in alT eases to appeal or to sue out writ of error from trial court’s judgment except on fundamental error or in eases the statute does not require the motion.</p> <p>3. Appeal and error @=281(1) — Court rule 71a applies wfiere appealing party is relieved from preserving proceedings by bills of exceptions.</p> <p>Rule 71a (145 S. W. vii) for district and county courts applies notwithstanding Rev. St. arts. 2061, 2062, relieving in certain cases the party appealing from preserving the proceedings by bills of exceptions.</p> <p>4. Appeal and error &wkey;28l(3), 282, 293 — No 'motion for new trial in order for temporary injunction, cases tried without jury, etc.</p> <p>A motion for new trial is not required to review order for temporary injunction; cases tried without jury; judgment on special verdict under Rev. St. arts. 1990, 1991; and cases presenting fundamental error.</p> <p>5. Pleading &wkey;>394 — Variance amounting to misdescription fatal only when misleading.</p> <p>Where the contract as established by evidence was not essentially different from tbe one alleged and amounted only to a misde-scription, and the variance, if any, consisted of an attempt to plead the evidence relied on to establish an alleged verbal contract, it could only be fatal if tending to mislead or surprise.</p> <p>6. Appeal and' error @=197(3) — Variance amounting only to misdescription cannot be urged for first time on appleal.</p> <p>Where no objection was made to evidence on account of alleged variance, and the variance not being such as to constitute a different cause of action, but only misdescription, it cannot be urged for the first time on appeal.</p> <p>7. Appeal and error @=204(1) — Admission of testimony that would have been excluded on. ’ objection not ground for new trial.</p> <p>Objections to testimony must be made when offered, and, if not, are considered waived, and, notwithstanding such evidence on objection would be excluded, its admission will not furnish ground for new trial.</p> <p>8. Contracts @=346(16) — Party must recover on contract pleaded.</p> <p>One suing on a contract must recover upon the contract alleged or not at all, and, if he proves a contract essentially different from that alleged, he must fail.</p>

<p>Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.</p> <p>Suit by John M. Miller and wife against E. A. Hodges and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal and error &wkey;>l003 — Where verdict against overwhelming weight of testimony, judgment will he reversed.</p> <p>Where the verdict of the jury is against, the overwhelming weight of testimony, the judgment will be reversed on appeal.</p>

<p>Appeal from District Court, Gray County; W. R. Ewing, Judge.t</p> <p>Suit by M. V. Brownfield against R. B. Pyron and others. Prom an adverse judgment, the named defendant appeals.</p>

<p>Venue <&wkey;5(3) — Action held “suit to quiet title,” so that defendant could be sued in the county of land’s situs.</p> <p>■ Where vendor sold land to one of the defendants for cash and promissory notes and retained a vendor’s lien in the deed and notes, and vendor subsequently transferred 'part of the notes, which were again transferred to another of the defendants, and plaintiff alleged the invalidity of the transfers and that he was still in -fact the owner of the notes as well as the lien and asked that the- transfers be canceled and that the superior legal title be adjudicated to be in him, held, that such suit is one to quiet title within the contemplation of Rev. St. art. 1830, § 14, excepting such suits -from those in which defendant must be sued in the county of his residence.</p>

Action by Pat Holbert and another against Walker D. Hines, Director General of Railroads, and operating the Fort Worth & Denver City Railway Company and J. B. Alvis. From an order overruling the plea of defendant 3. B. Alvis to be sued in the county of his domicile, he appeals.

<p>1. Appeal and error <&wkey;l068(1) — Where general verdict was on theory of absence of negligence, instruction on values of shipment harmless.</p> <p>In an action for damages to a shipment of sheep for alleged mishandling by a railroad, a charge that “unless you find from a preponderance of evidence that the sheep would have a market value at destination had they been shipped with' ordinary care and dispatch, you will find for defendant,” while in effect a peremptory instruction for defendant in the event the jury found the sheep had no market value, was not reversible error, because the general verdict was not based on values, but on the theory that there was no negligence.</p> <p>2. Carriers <&wkey;230(9) — In a suit for damage to sheep, held requested instruction on duty to care for shipment of weak and poor sheep should have been given.</p> <p>Where, in an action for damage growing out of a shipment of sheep alleged mishandled, an, instruction that, if the jury found that the sheep were weak and poor when shipped, and that their death en route and condition at destination was- due to those causes, and not to negligence oh the railroad, to find for defendant, was given, a requested instruction that, even if the sheep were weak and poor, it was nevertheless the duty of the carrier to use ordinary care to transport them, and to return a verdict for plaintiff if the evidence showed failure to use such care, and injury as a proximate result, should have been given, especially in view of opinion evidence as to the condition of the sheep being due to lack of care prior to time of shipment from witnesses living at the point of delivery, who had not seen the. sheep before that time, and knew nothing as to how they were handled.</p>

<p>I. Appeal and error <@=o!052(5) — Admission of evidence held harmless where not affecting result.</p> <p>In action against carrier for damages for failure to furnish car on fixed date, admission of evidence of defendant that he told Agent that he had the potatoes, which were to be loaded into the car, sold to be delivered not later than stated date, held harmless, though not admissible under the pleadings, where record shows that plaintiff recovered only what the undisputed evidence shows was the result from 'failure to furnish the car at the time agreed upon.</p> <p>2. Carriers <&wkey;66 — -Agreement to furnish car at designated time for shipment to no particular place need not be in writing.</p> <p>An agreement of a carrier to furnish a car at a designated time for shipment to no particular place' need not be in writing, as required by the federal statute.</p>

<p>1. Publio lands <&wkey;473(7) — Prior right to purchase excess lands does not apply after patents have been issued.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5397, providing that a purchaser from the state shall have prior right for six months after a resurvey to purchase excess land contiguous to the purchased land, and article 5400, providing that the preceding four articles shall not apply to any lands for which patents have issued, a purchaser from the state may also purchase the excess regardless of the boundaries in the contract of purchase, but the right terminates upon the issuance of a patent.</p> <p>2. Public lands &wkey;>!73(7) — Applicant held entitled to a mineral permit for excess lands on purchase from state.</p> <p>Where .patents had been issued to purchasers of state land,, the prior right to purchase excess lands after resurveys contiguous to their lands, as granted by article 5397, terminated on the issuance of the patents, and an applicant was entitled to have issued to him a mineral permit relating to the excess lands.</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Contest by Mrs. Emma Irby of a will, of which Mrs. Ella Briley was proponent, Lee Walker intervening and praying for probate of the will in its entirety. From a judgment of the Court of Civil Appeals (229 S. W. 331) affirming a judgment sustaining the contest in part, Lee Walker brings error.</p>

<p>1. Appeal and error <&wkey;>l083(3) — Whether discretion in refusing new trial for communication with juror has been abused is a question of law.</p> <p>Whether there has been an abuse of judicial discretion in overruling a motion for new trial for communication by an outsider with a juror is a question of law, and not of fact, and a determination by the trial court and by the Court of Civil Appeals does not preclude revision by the Supreme Court, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1958-1961.</p> <p>2. New trial &wkey;>47 — Misconduct of jury held to require new trial.</p> <p>Where, during the deliberations of a jury in a personal injury action against the Director General of Railroads, the jury stood five for plaintiff and seven for defendant, and, after a juror had communicated to the others that during the separation of the jury for dinner an outsider had told him that the conductor on the train where the injury had occurred had stated that plaintiff had been hurt and was entitled to some damages, the jury found for plaintiff, a new trial should have been granted.</p>

Action by L. E. Norton against P. D. C. Ball. Judgment for defendant was reversed, and the cause was remanded by the Court of Civil Appeals (225 S. W. 581), and defendant brings error.

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by Pearl Peveto and others against the Texas & New Orleans Railway Company. Judgment for the plaintiffs was reversed by the Court of Civil Appeals (224 S. W. 552), and plaintiffs bring error.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>On motion for rehearing. Motion overruled.</p>

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Action by John Ulotb and another against A. Moodyman and others. From judgment that defendant Moodyman was tbe sole owner of certain land, plaintiffs and defendants John Uloth and wife appealed to the Court of Civil Appeals, which affirmed tbe judgment (227 S. W. 326), from which plaintiffs and defendant Moodyman bring error.</p>

<p>f. Appeal and error <@==>1094(2) — Where determination of district court and Court of Civil Appeals on conflicting evidence is the same it is binding upon Supreme Court.</p> <p>Where the district court and the Court of Civil Appeals make the same determination on conflicting evidence, the determination is binding on the Supreme Court.</p> <p>2. Torts <®=>l 0 — 'Trade union’s withdrawal of its members purely to injure business of their employer is actionable.</p> <p>The withdrawal by a labor union of the employés of an employer, purely for the purpose of injuring the employer’s business, is wrongful and therefore actionable.</p> <p>3. Injunction <@=101 (2) — Labor union not enjoined from withdrawing men from employment of employer who refused to join certain organization.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5244, 5245, an employer was not entitled to enjoin labor union from withdrawing, after 60 days’ notice, its members from employment because of refusal to join an association requiring its members to comply with certain conditions, under a rule of the union prohibiting members from working for employer not a member of such organization, adopted to better the working conditions of the union, in the absence of a showing of malice or ill will on the part of the union toward such employer.</p>

<p>1. Removal of causes <@=>12, 14 — Suit brought in state of which neither party is resident is removable to federal court of district in which brought.</p> <p>Under Judicial Code Ü. S. §§ 24(1), 28, 29, 51, and 53 (U. S. Comp. St. §§ 991[1], 1010, 1011, 1033, and 1035), a suit between citizens of different states, brought in a state of which neither party is a resident, is removable to the federal court to the district in which the suit is brought; the purpose of section 1035, which provides that, where the district contains more than one division, the suit must be brought in the division of defendant’s residence, being merely to prescribe the division to which the suit should be removed, where there is more than one division in the district to which the suit is removable.</p> <p>2. Removal of causes <@=>44 — Suit between nonresidents removable to district in which brought; “proper district.”</p> <p>The “proper district” to which to remove a cause, within the meaning of Judicial Code U. S. § 28 (U. S. Comp. St. § 1010), is the district in which the suit is brought, as applied to a suit by parties none of whom resided in the state where suit was brought, and which, if brought in the federal court, might be brought in the district in which defendant might be found.</p> <p>[Ed. Note — For other definitions, see Words and Phrases, Second Series, Proper District.]</p>

<p>1. Trial &wkey;>350(6) — Refusal of special Issue as to accident, though negative of Issue submitted, held error.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, requiring the court to submit to the jury all issues made by the pleading, and article 1984a, providing that court shall submit the case requested on special issues raised by the pleading and evidence, dnd that this article shall be construed in connection with article 19S5, in an action against a railroad, for negligence resulting in death of a brakeman, where the evidence raised the issue that the death was caused by unavoidable accident, refusal to submit special issue as to the liability of the railroad in case of accident was error though it was negative of issue submitted.</p> <p>2. Master and servant &wkey;>29l (I0i) — Charge on burden of proof as to condition of car held erroneous.</p> <p>In an action for the death of brakeman caused by a defective car, an instruction that the burden of proof was on plaintiff to make out the case by preponderance of evidence and that the burden of proof upon each special issue is upon the party having the affirmative of the special issue, and submitting the question whether the car which was furnished by a connecting carrier was in a reasonably safe condition, and requiring an answer of “yes” or “no,” was erroneous as putting the burden upon the defendant to show that car was in a reasonably safe condition.</p> <p>3. Master and servant <®=»265(2) — Burden on railroad to prove car was foreign.</p> <p>In an action for the death of a brakeman caused by a defective car, the burden of proof that the car was a foreign car was on defendant.</p> <p>4. Master and servant <&wkey;!06(3), 124(4) — Care required of railroad handling foreign car.</p> <p>A railroad company is not liable for injury to a brakeman caused by a defective car received from a connecting carrier, unless it failed to properly inspect it or having inspected it and found it defective, put it in the train.</p> <p>5. Master and servant <&wkey;>l24(4) — Railroad’s duty to inspect foreign cars.</p> <p>The duty of a railroad company to its employees is satisfied by furnishing sufficient competent and suitable inspectors, who are to act under proper instructions, rules, and superintendence, and by making a proper inspection and giving due notice to the employees of the defects discovered in cars furnished by connecting carriers.</p>

Action by J. H. Spivey and others against the Saner-Ragley Lumber Company and others. Judgment for plaintiffs, and application for writ of error dismissed by the Court of Civil Appeals (230 S. W. 878), and defendants bring error.

<p>1. Criminal law <§=15 — Prosecution dismissed upon repeal of portion of statute under which prosecution was brought.</p> <p>Prosecution will be dismissed -upon repeal of that portion of the statute under which defendant was prosecuted.</p> <p>2. Intoxicating liquors <&wkey;202 — Indictment charging possession of liquor must allege purpose of sale.</p> <p>Indictment charging possession of intoxicating liquor without alleging the possession to have been for the purpose of sale held insufficient in view of Acts 36th Leg. (1919) 1st and 2d Called Sess. c. 78, as amended by Acts 37th Leg. (1921) 1st and 2d Called Sess. c. 61.</p>

<p>Criminal law <&wkey;l 144(16) — All presumptions in favor of verdict in absence of statement of facts or bill of exceptions.</p> <p>Where the record contains no statement of facts or bills of exceptions, and the proceedings appear to be regular, all presumptions must be indulged in favor of the correctness of the verdict.</p>

<p>1. Larceny &wkey;s64(6) — Evidence held to support finding that person from whom defendant claimed to have purchased property stolen was fictitious.</p> <p>In a prosecution for theft of a cow found in defendant’s possession, evidence held sufficient to support the jury’s finding that a person from whom defendant claimed to have purchased the animal was fictitious.</p> <p>2. Larceny <&wkey;64(f) — Evidence held insufficient to show defendant’s possession of stolen property not fraudulent.</p> <p>In a prosecution for theft of a cow, that defendant disclosed to the owner the fact of his possession thereof was insufficient to show that possession was not fraudulent, where there was evidence that he sought the owner only after knowing that the theft was discovered and that he was suspected.</p> <p>3. Larceny <&wkey;55 — Evidence held sufficient to show that defendant took cow from owner’s possession.</p> <p>In a prosecution for larceny of a cow, evidence held to sustain conviction.</p>

<p>1. Exchange of property <&wkey; 10 — Third party’s misrepresentations as to condition of automobile held not binding on defendant.</p> <p>Where plaintiff traded his automobile for one belonging to M., acting on representations by V. as to the condition of M.’s car, held, that the mere fact that M. referred plaintiff to V. as one acquainted, with the qualities of M.’s car was not alone sufficient to bind him to V.’s misrepresentations.</p> <p>2. Livery stable and garage keepers &wkey;>6 — Delivery of automobile held delivery to person entitled thereto.</p> <p>Where plaintiff and M. traded automobiles, plaintiff giving M. a bill of sale, but refusing to deliver his automobile to M., and instead storing it in defendant’s garage, from which it was procured surreptitiously by M. upon exhibiting the bill of sale, held, that delivery, to M. was delivery to the owner precluding liability for such delivery on the part of defendant.</p> <p>3. Evidence <&wkey;54— Inferences must be based on facts established.</p> <p>Inferences may arise only from facts established, and can never be made to subserve the primary function of evidence.</p> <p>4. Estoppel <&wkey;95 — Silent acquiescence in fraudulent misrepresentations of third party not binding in absence of knowledge of falsity.</p> <p>Where plaintiff and M. traded automobiles, plaintiff acting on the misrepresentations of a third party as to the condition of the machine which he desired to obtain, the rule that a party in interest may become liable for mere silent acquiescence in fraudulent misrepresentations of a third party is inapplicable; there being no evidence that M. acquiesced in the third party’s fraudulent misrepresentations with knowledge of their falsity.</p> <p>5. Trial <&wkey; 127 — Evidence that garage keeper was protected by bond held error in action for failure to deliver car.</p> <p>In an action against a garage keeper for failure to deliver a car placed in his keeping, evidence on cross-examination that a bond for the defendant’s protection had been given by a third party claiming the car held error.</p>

<p>Appeal from Potter County Court; Ray C. Johnson, Judge.</p> <p>Action by Geo. H. Riley against C. R. Garner & Co. and others. Judgment for the plaintiff, and the named defendant appeals.</p>

Three suits by the State against George Findlay and others, consolidated for trial. Judgment for the plaintiff in each suit, and defendants appeal.

<p>• Appeal from Eastland County Court; R. L. Rust, Judge.</p> <p>Suit by E. P. Wright against the Prairie Oil & Gas Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Kinney County; Joseph Jones, Judge.</p> <p>Suit by W. E. Whitehead and others against W. Fred West and others. From order granting a temporary injunction, defendants appeal.</p>

<p>1. Deeds <&wkey;>l8l, 182 — Loss or destruction of deed does not divest grantee of title.</p> <p>The loss or destruction of a deed by a husband to his wife does not-divest the wife of her title to the land conveyed thereby.</p> <p>2. Fraudulent-conveyances <&wkey;64(2) — Intent of deed by husband to wife held not to affect wife’s right to rely on prior deed.</p> <p>Where a husband had validly conveyed land to his wife and he subsequently executed another deed to her conveying the same land because the first -deed was lost before being recorded, which deed was attacked as in fraud of creditors, the intent of the grantor cannot affect the wife’s right to rely upon her title under-the former deed nor make her acceptance of the latter deed void as to her.</p> <p>3. Fraudulent conveyances &wkey;>49(I) — Deed to replace former deed by husband to wife held not void as to creditors.</p> <p>Where a husband had validly conveyed land to his wife while not indebted, but subsequently, at a time when he was insolvent, executed a deed to her conveying the same land because the first deed was lost before being recorded, the last deed was not void as to creditors, since it took nothing from them upon which they had a right to rely for the payment of their debt.</p> <p>4. Fraudulent conveyances <&wkey;206(l), 271(1) —Conveyance, whether voluntary or not, not fraudulent as to one not a creditor when given; burden on plaintiff to prove indebtedness.</p> <p>Where a husband deeded land to his wife, whether the deed was on a valid consideration, or a voluntary conveyance, it would not be fraudulent as to plaintiff either under Rev. St. arts. 3966 or 3967, unless at that time the husband was indebted to plaintiff, the burden ' of establishing which fact was upon plaintiff.</p> <p>5. Fraudulent conveyances <&wkey;2IO — Wife’s right not affected by husband’s creditor’s want of notice of deed, if he knew land was her separate property.</p> <p>Where a husband conveyed land to his wife, the wife’s right to rely on the de'ed is not affected by the fact that a creditor of the husband did not have notice of the existence of the deed, if he was charged with notice that the land was the separate property of the wife when he filed his abstract of judgment.</p> <p>6. Fraudulent conveyances <&wkey;>2IO — Deed held-notice that property conveyed was wife’s separate estate.</p> <p>Where a deed was given by a husband to his wife to replace his prior deed which had been lost before being recorded, such correction deed, when duly recorded, was notice to the husband’s creditor and to all the world that the property was the wifé’s separate estate paid for by her separate money.</p> <p>7. Fraudulent conveyances &wkey;>208 — Deferred payment out of community funds held not to make title of wife fraudulent as to one not then a creditor of husband.</p> <p>Where a husband deeded land to his wife purchased in the names of both, but part of which had been' paid for out of her separate funds, .that a deferred payment was made out of the community funds does not render the wife’s title as to that portion fraudulent as to one who was not then a creditor of the husband.</p> <p>8. Fraudulent conveyances &wkey;>3IO— Findings as to fraudulent conveyances held conflicting.</p> <p>■Where it was claimed that a conveyance by husband to wife was fraudulent as to creditors, a finding that the .wife held the community interest in her name only held to conflict with a finding that the land was conveyed to her long before, and that later deed to her was given while the husband was not indebted, giving notice that the property was her separate estate, so that a judgment rendered on the verdict against the wife could not stand.</p> <p>9. Husband and wife <&wkey;269 — Vendor and purchaser <&wkey;232((2) — That wife is living on land not notice of separate right when record title in community.</p> <p>That a wife .is living on the land with her husband is not sufficient to afford notice of her separate right thereto, when the deed of record placed the title in the community.</p> <p>10. Trusts &wkey;>23 — Trust in favor of wife held not- subject to registration laws.</p> <p>Where a conveyance by a husband to his wife in payment of an indebtedness to her created a trust for .that amount in favor of the wife, such trust was not subject to the registration laws.</p> <p>11. Fraudulent conveyances <&wkey;154(1) — Registration laws held applicable to unpaid balance of purchase money of land in wife’s name.</p> <p>Where a husband conveyed land to his wife in payment óf an antecedent debt and a part of the purchase money for the property was paid out of the community, as to such balance the registration laws would apply.</p> <p>12. Fraudulent conveyances &wkey;>154(l) — Judgment <&wkey;788(2) — “Creditor” securing lien with notice that property belonged to another held not protected' under statute.</p> <p>Where one before he secured a lien on land ,as a creditor had notice that the land belonged to the debtor’s wife’s separate estate, such creditor will not be protected under Rev. St. art. 6824, he not having secured his lien without notice, a “creditor” who is protected under the statute being one who has acquired a lien by a proceeding at law, and not a simple contract creditor or one holding a contract lien.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Creditor.]</p> <p>13. Husband and wife <&wkey;!29(3) — Allowing title to remain in name of husband and wife held insufficient to estop wife as against creditors.</p> <p>Where by mistake land was conveyed to husband and wife when it was intended to be conveyed to the wife only, that she permitted the title to remain on record in the name of her husband and herself held not under the evidence sufficient to raise an, issue of estoppel as to a creditor of the husband; it not appearing that the credit was extended on the faith of the husband’s apparent ownership of the land.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by the Industrial Cotton Oil Properties against Leo Malloy. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Coleman County; J. O. Woodward, Judge.</p> <p>Action by F. Wal Taylor against C. W. Hemphill and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Sunday &wkey;o30(3)-=-DeIivery of citation to sheriff not part of “service” within statute.</p> <p>The delivery of a “citation” to the sheriff for service is not a part of the service within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1816, prohibiting the service of process on Sunday.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Service.]</p> <p>2. Judgment <&wkey;I7(10) — Return of service, not showing delivery of copy to each defendant, will not support default judgment.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1856, providing that, unless the process should otherwise direct, the citation shall be served by delivering to each defendant in person a true copy, a return of service on several defendants stating that it was served “by delivering to the within named defendant in person a true copy,” would not support a default judgment.</p> <p>3. Appeal and error <&wkey;1173(1)— Liability held joint and several, and reversal as to some defendants not to require reversal as to all.</p> <p>An action on a contract by which all defendants bound themselves to pay a debt necessarily involved the several liability of each defendant, as well as the joint liability of all, so that a reversal of the judgment as to some of the defendants did not require reversal as to another defendant.</p> <p>4.Judgment <&wkey;240 — Several judgment cannot be sustained unless petition alleges several liability.</p> <p>If the petition failed to allege several liability in words or as a matter of law, a judgment awarding several liability against the defendants cannot be sustained, as the judgment must be responsive, not only to the proof, but to the issues tendered by the pleadings.</p>

<p>Appeal from Wichita County Court; Guy Rogers, Judge.</p> <p>Suit by J. E. Jackson against W. J. Brown, who interpleaded J. D. Coombs. I'Tom an adverse judgment, the latter appeals.</p>

<p>1. Appeal and error <&wkey;733 — Assignments held in violation of rules against multiplicity and generality.</p> <p>Assignments of error that court erred in rendering. any judgment on the cross-action against plaintiff held to be in violation of court rules by reason of generality.</p> <p>2. Appeal and error «&wkey;736 — Grouped assignments as to suppression of deposition and judgment on cross-action held insufficient.</p> <p>Assignment of error grouping propositions as to suppression of deposition and correctness of judgment on cross-action held in violation of court rules by reason of multiplicity.</p> <p>3. Sales &wkey;j359(2) — Evidence held to • show parties’ contemplated losses would result from delay in delivery.</p> <p>In seller’s action for price of oil well casing sold, defendants’ evidence held to show that it was within the contemplation of the parties at the time of contracting that losses from expenses of shutting down drilling operations would probably result from plaintiff’s delay in shipping the casing.</p> <p>4. Sales <&wkey;348(l) — That buyers had sold out to another no defense to buyer’s cross-action for damages for delay.</p> <p>In seller’s action for price of oil well casing sold, where defendant buyers brought a cross-action for damages from delay in delivery, consisting of shut-down expenses, the fact that buyers had sold the well they were drilling to a third party, who assumed the payment of plaintiff’s debt and also shut-down expenses, was no defense to the cross-action, plaintiff not having recognized such third party, as a purchaser in any respect, and the third party, in such sale, having been paid by defendants a consideration for such assumption.</p>

<p>1. Appeal and error <©=3653(3) — Where copy of statement of fact filed in Court of Civil Appeals bore no indorsement of filing in lower court, other oopy duly filed ordered substituted.</p> <p>Where plaintiff in error filed in the Court of Civil Appeals a statement of facts agreed to by counsel f.or both parties and approved by the trial court, but not bearing indorsement of filing in lower court, and subsequently filed with the district clerk a copy of the statement of facts, the plaintiff in error’s motion to require the clerk of the Court of Civil Appeals to file the copy filed in the district clerk’s office as of the date when filed in the district clerk’s office and return the copy filed in the Court of Civil Appeals to the district clerk to be filed as of such date will be granted, in view of Rev. St. arts. 2068, 2070.</p> <p>2. Brokers <©=85(6) — Testimony of conversation held admissible on issue of authority to employ subagents.</p> <p>In an action for commission for a sale, involving an issue as to whether the broker with whom the defendant had contracted had been authorized to employ subagents by an agreement collateral to the written contract, testimony as to conversation between defendant and such broker with reference to defendant’s desire to sell and as to a prior contract between them held admissible on issue as to brokers’ right to employ subagents.</p> <p>3. Evidence <5=441(6) — Parol testimony as to agreement collateral to written contract held admissible.</p> <p>In brokers’ action for commission, parol testimony as to agreement entitling broker to employ subagents, collateral to the written brokerage contract, held admissible.</p> <p>4. Brokers <5=86(I)— Agreement collateral to written contract entitling broker to employ subagents need not be shown by express proof.</p> <p>An agreement collateral to a brokerage contract entitling broker to employ subagents need not be shown by express proof.</p> <p>5. Brokers <@=55(l)— Owner who authorized broker to employ subagents bound by sub-agents’ contracts.</p> <p>A broker cannot ordinarily delegate his authority to a subagent except as to the performance of clerical duties, but if there was an expressed or implied agreement authorizing a broker to employ subagents, the owner will be bound by contracts entered into by subagents when within the terms of sale agreed on between the owner and broker.</p> <p>6. Brokers <5=55(1)— Sale by subagent contemplated where broker lived, in other state.</p> <p>Where an agent employed to sell land situated within the state resides in another state, it is a fair presumption that a sale by a sub-agent is contemplated.</p> <p>7. Brokers <5=86(I)— Evidence held to prove owner employed broker to sell interest in royalty under oil and gas lease.</p> <p>Evidence held to prove that owner employed broker to sell a one-half interest in a one-eighth royalty under an oil and gas lease on two tracts of land.</p> <p>8. Brokers <s=86(l) — Evidence held to prove broker’s authority to employ subagents.</p> <p>Evidence held- to prove that'broker was authorized to employ subagents.</p> <p>9. Brokers <5=386(4)— Evidence held to prove brokers procured purchaser before owner’s sale to others.</p> <p>Evidence held’ to prove that brokers procured purchaser before owner’s sale to others.</p>

<p>1. Limitation of actions <&wkey;46(IO) — Suit to recover amounts assessed against defendant on charged-off obligations held governed by the 4-year statute.</p> <p>Under an agreement' by seller of bank stock to pay buyers thereof the interest of the buyers as stockholders in all notes held by the bank which might, within 4 years, be charged off by the bank at the direction of the Bank Examiner, the 4-year statute of limitations (Rev. St. 1911, arts. 5688, 5699), barred an action to recover amounts due from the seller, under the agreement, on charged-off obligations, where action was not brought within 4 years after the assessment, during which time the seller refused to make payment.</p> <p>2. Limitation of actions <@=35(1) — Statute to be strictly construed.</p> <p>A statute of limitations must be strictly construed.</p> <p>3. Limitation of actions <&wkey;28(2) — Action to recover money expended under theory of subrogation barred by 2-year statute.</p> <p>An action by joint obligors on theory of subrogation and implied promise for reimbursement to recover money they were compelled to pay is barred in 2 years.</p>

<p>1. Schools and school districts <@=38 — Election or petition not required to authorize trustees of adjoining counties to consolidate districts for common school purposes.</p> <p>An election or petition is not necessary to authorize school trustees of adjoining counties to consolidate adjoining districts for common school purposes under Vernon’s'Ann. Civ. St. Supp. 1918, art. 2815a, as that article does not require it, and article 2749c, which seems to require a petition for consolidation for high school purposes, does not apply in such case.</p> <p>2. Schools and school districts <&wkey; f 03 (2)— Common county line district held sufficiently described in county judge’s order for election for maintenance tax.</p> <p>A description of the district in the order of a county judge ordering an ejection for a maintenance tax, as “common county line school district No. 106 of Coryell and Hamilton counties, Texas,” which was properly established in accordance with Acts 32d Leg. (1911) c. 100, § 50a, as amended by the Acts 35th Leg. (1917) •c. 196 (Vernon’s Ann. Civ. St. Supp. 1918, art. 2815a), by the board of school trustees of each county, giving the date of the order and the volume and page of the record thereof in the school district records for each county, was sufficient.</p> <p>3. Schools and school districts <&wkey;37(5) — Map of common county line district sufficient if it shows county line, each survey in district, and acreage of each.</p> <p>To create a common county line district the map and plat is sufficient if the dividing line between the two counties is clearly delineated, and shows each of the surveys within the boundaries of the district, and the number of acres in each survey.</p>

<p>I. Adoption Adoption held conditional and not to give child right as heir.</p> <p>An instrument of adoption, reciting that in consideration that the child “will remain in my custody and care as my ward until he arrives at the age of twenty-one years, and further that -said E. P. [the child] will have his name changed in a lawful manner: * * * Therefore, for the above-named considerations I do here by these presents adopt said E. P. as my lawful and legal heir, and when the above conditions are complied with he is entitled to all the rights and privileges of an adopted heir,” was conditional and did not entitle the | child to share in the estate of the adopting parent, where he did not change his name or live with the adopting parent until 21 years of age, though he did not know that such conditions existed.</p> <p>2. Specific performance <®=»38 — Oral promise to devise not specifically enforced.</p> <p>Oral promise to devise property cannot be specifically enforced.</p>

S. Mauzey, Judge. Suit by T. E. Whaley and another against the Western Compress & Storage-Company and another. Judgment for plaintiff against the defendant Compress Company, and in favor of the defendant Sheppard that plaintiff take nothing, and the Compress Company appeals.

• Appeal from District Court, Nueces County; W. B.- Hopkins, Judge. Action by W. E. Pope against J. H. Ray. From an order overruling defendant’s plea of privilege to be sued in the county of his residence, defendant appeals.

<p>1. Vendor and purchaser <§=5196 — Grantee entitled to rents accruing after conveyance, but parties may contract to contrary.</p> <p>While grantee acquires the right to all rents accruing after conveyance, the parties may contract to the contrary.</p> <p>2. Landlord and tenant <@=»205 — Tenant’s [¡.romise to pay rent may be assigned without carrying interest in realty.</p> <p>A tenant’s promise to pay rent is a mere chose in action, which may be assigned without carrying any interest in the realty.</p> <p>3. Vendor and purchaser &wkey;>228(l) — Vendee with knowledge of prior vendor’s retention, of rents, though by oral agreement, cannot recover same.</p> <p>One purchasing land with knowledge of a prior vendor’s retention of the right to collect' rents as a part of the consideration cannot recover same from tenant, though the agreement as to the retention thereof was oral.</p> <p>4. Evidence <®=»4I9(2)— Evidence of grantor’s parol reservation of rent for current year held admissible.</p> <p>Where deed from father to son recited, as consideration, a nominal cash payment and love and affection, and in addition to this there was a parol agreement that the grantor should, as a further consideration, collect and retain a stipulated part of the rent due from the tenant in possession of the property for the current year, a subsequent purchaser with knowledge of such retention or reservation could not successfully contend that, expressed consideration in the deed being contractual in its nature, parol evidence was inadmissible to show that the grantor was also to receive the rent reserved.</p>

<p>Error from District Court, Atascosa County; C. C. Thomas, Judge.</p> <p>Action by the Hurley Mercantile Company against B. Flint. Judgment for plaintiff, and defendant brings error.</p>

<p>■Fraudulent conveyances @=>172(1) — Sale of goods in bulk is voidable, not “void”; hence law no defense to purchaser.</p> <p>In the expression in Bulk Sales Law (Rev. St. art. 3971), “shall be void as against creditors,” the word “void” means voidable, and that at the demand of the creditors the sale would be rendered invalid, but not for any other reason void or voidable; hence a purchaser of a stock of goods cannot invoke any of the provisions of the Bulk Sales Law to protect or shield him from his obligations to perform.</p> <p>[Ed. Note. — For other definitions, seé Words •and Phrases, First and Second Series, Void.]</p>

H. Strength, Judge. Condemnation suit by the Marshall Electric Company against the City of Marshall, in which A. G. Carter and others sought to intervene. From a judgment for plaintiff, and dismissing interveners’ suit, interveners appeal.

C. Canty, Judge. Action by Ina Davis and another against P. E. Hanson and another. From a judgment for defendants on directed verdict, plaintiffs appeal.

<p>Appeal from District Court, Bell County; M. B. Blair, Judge.</p> <p>Action by R. B. Bishop against J. E. Martin and others. Prom judgment for plaintiff, defendants appeal.</p>

<p>1. Wills <&wkey;238 — Prior proceedings held suit to contest foreign will.</p> <p>A prior suit seeking to have set aside a foreign will, recorded within the state under Rev. St. art. 3276, on the ground the will was invalid, was a suit to contest the will as authorized by article 7875, notwithstanding the answer, which prayed for the probate of the foreign will.</p> <p>2. Wilis &wkey;>281 — Unnecessary attack on former judgment to which contestants were not parties held not to defeat petition to contest.</p> <p>In a suit to contest a foreign will, an attack upon the validity of a former judgment admitting the will to probate, to which plaintiffs were not parties, does not defeat the validity of the petition to contest the will, even though it was unnecessary for plaintiffs to have attacked the former decree.</p> <p>3. Parties <&wkey;74 — Unknown heirs properly designated as defendants.</p> <p>Under Rev. St. art. 1875, permitting suit against the unknown heirs of a deceased person, their heirs or legal representatives, describing them as heirs of a named ancestor, a petition against the unknown heirs of a devisee is sufficient without also designating as parties the heirs or legal representatives of the unknown heirs.</p> <p>4. Wills <&wkey;28l — Petition to contest not objectionable as omitting name of successor in trust.</p> <p>Objection that a petition to contest a will failed to state the name of a successor in trust therein referred to was not well taken where subsequent allegations stated that the title of the trustee was vested either in the purchaser from him or in a bishop who was the authorized title holder for the beneficiary church.</p> <p>5. Judgment <&wkey;572(l) — On demurrer presumed not to have been on the merits.1</p> <p>While a judgment on demurrer may be as conclusive as a judgment on the facts, it must clearly appear, to give it that effect, that the demurrer went to the merits of the action or defense; otherwise it will be presumed the objection was to the form.</p> <p>6. Wilis &wkey;>371 !/2 — Dismissal of will contest in district court on appeal does not revive county court judgment.</p> <p>Where the district court dismissed a will contest pending before it on appeal from thé county court, its dismissal did not revive the judgment of the county court, but put all parties out of court.</p> <p>7. Wills <&wkey;400 — Testimony of incompetent witness to transactions with deceased held harmless in view of other testimony to same facts.</p> <p>If testimony by a contestant as to the condition of testator when she visited him about the time the will was made was incompetent as a transaction with testator, under Rev. St. art. 3690, the admission of such testimony was not prejudicial to contestees, where other witnesses had testified substantially without contradiction to the same conditions.</p> <p>8. Wills <&wkey;400 — Incompetent testimony testator did not converse with any one held harmless.</p> <p>Where it was undisputed that testator at the time he made his will had been suffering from cancer of the mouth, and had also had several paralytic strokes, which made it almost impossible for him to converse with any one, incompetent testimony by contestant that during the two days she visited in the house where testator was about the time the will was executed testator did not converse with any one was not so prejudicial to contestees as to require reversal of a judgment holding the will invalid.</p> <p>9. Wills &wkey;s55(5) — Evidence as to physical and mental condition held to sustain finding of incapacity.</p> <p>In proceedings to contest a will, evidence that testator was more than 80 years of age, that he had had several strokes of paralysis, and a cancer in his mouth, which made him practically helpless and confined him to his bed, and at' times put him in a stupor from which he would have to be aroused, held to sustain finding of the jury that testator was without capacity to make his will.</p> <p>10. Wills &wkey;>166(1) — Evidence held to sustain finding of undue influence by all but one of the named parties.</p> <p>In proceedings to contest a will, evidence held to sustain a finding of undue influence by all of the parties named by the jury in the finding except one of them who was not present when the will was made.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Suit by T. H. Digon against G. H. Jackson and others. From a decree dissolving a temporary injunction, plaintiff appeals.</p>

<p>1. Schools and school districts <&wkey;2l — Districts ■■ governmental agencies within exclusive control of Legislature.</p> <p>Districts are governmental agencies, and are within the continued exclusive control of the Legislature, and may be enlarged, diminished, or extinguished by it, except in so far as restrained by the 'Constitution.</p> <p>2. Statutes <@=230 — Not implied that amendment requires doing of useless thing.</p> <p>In construing ,an amendment to a statute, it will not be implied that the Legislature intended to require the doing of a useless thing.</p> <p>3. Statutes <&wkey;230 — Body, caption, and emergency clause to be considered in construction.</p> <p>In construing an amendment to a statute, the court may look to the body of the act, its caption, its emergency clause, the existing facts or conditions at the time, and the body of the act of which the amendment is a part.</p> <p>4. Schools and school districts <@=38 — Statute held to add territory to existing district without election.</p> <p>Loe. & Sp. Acts 33d Leg. (1913) c. 44,' amending Acts 29th Leg. (1905) c. 137, added territory to the Eloydada Independent School District without the necessity of a vote of electors in the new territory.</p> <p>5.- Schools and school districts <&wkey;24(2) — Validity of district to which territory was irregularly added can be attacked only by state in direct action.</p> <p>Where territory was added to an existing school district irregularly without a vote of the electors in the new territory, and the people associated themselves for school purposes and actually existed as a corporation, the state alone, by direct proceeding in the nature of a quo warranto under Rev. St. art. 6398, could attack it, and a taxpayer could not, by. injunction to restrain collection of taxes, assail the incorporation.</p>

Hall, Judge. Aetion by T. J. Russell against Industrial Transportation Company. Judgment ior plaintiff and defendañt appeals.

<p>1. Damages <@=>208(1) — Measure of damages for court, not jury.</p> <p>The measure of damages is a matter of law for the court, and not of factfor the jury.</p> <p>2. Trial <@=3215 — Court must define measure of damages though case was submitted on spe- ' cial issues.</p> <p>Where special issues required jury to ascertain amount of damages, it was the duty of the court to instruct the jury as to the measure of damages, even though the case was submitted to the jury upon special issues.</p> <p>3. Trial <@=»278 — Party objecting to charge must specify objection.</p> <p>A party objecting to the charge as prejudicial or inapplicable to the pleadings or evidence must specify the particular objection.</p> <p>4. Trial <@=3350(6) — Refusal to submit distinct issues of negligence separately held error.</p> <p>Where live stock shipper charged carrier with negligence in two particulars — in delaying transportation and in tlie rough handling of the cattle — refusal to submit special issue requested by carrier as to negligent delay separately from issue as to the rough handling of the cattle held error in -view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a.</p> <p>5. Judgment <§=256(7) — If jury does not allow shipper interest as damages in, verdict, court cannot grant damages in judgment.</p> <p>Live stock shipper suing carrier for negligent delay and rough handling of cattle, and for interest on the damages from the date the cattle were sold at destination, was not entitled to judgment for the lump sum named in verdict with interest from such date, and could recover interest only as a part of the damages.</p>

E. Mullen, Judge. Suit by Hill & Thompson against C. E. Schaff, as receiver of the Missouri, Kansas & Texas' Eailway Company of Texas, and the San Antonio & Aransas Pass Eailway Company. Judgment was rendered that plaintiffs take nothing from the second-named defendant, and was rendered for plaintiffs against the first-named defendant, «and the first-named defendant appeals.

<p>Appeal from Sabine County Court; W. C. Arnold, Judge.</p> <p>Action by J. W. Pryor against the Gulf, Colorado & Santa FS Railway Company., Judgment for plaintiff, and defendant appeals.</p>

Motion by W. M. Webb and. A. A. Cocke, trustees of the United Home Builders of America, of Dallas, Tex., an association unincorporated, against Ed Hall, Commissioner of Insurance and Banking, for leave to file petition for mandamus.

Action by Sallie Pearson against the Texas & New Orleans Railway Company. Judgment for plaintiff reversed, and cause remanded by the Court of Civil Appeals (224 S. W. 70S), and plaintiff brings error.

Action by W. P. Skinner against the Texas & New Orleans Railway Company. Judgment for plaintiff was reversed, and cause was remanded by the Court of Civil Appeals (224 S. W. 713), and plaintiff brings error.

Action by L. E. Norton, administrator de bonis non of the estate of George E. Chase, deceased, against the American Surety Company of New York and another. From judgment of the Court of Civil Appeals (220 S. W. 437) affirming judgment for plaintiff, defendant named brings error.

<p>Appeal from District Court, Floyd County ; R. C. Joiner, Judge.</p> <p>Sterling Jordan was convicted of theft, and he appeals.</p>

Suit to cancel án oil lease by A. H. Jones and another against J. R. Alford and others. From judgment for defendants, plaintiffs appeal. ■

<p>Appeal from District Court, Orange County; Y. H. Stark, Judge. Grant Smith was convicted of unlawful manufacture of intoxicating liquor, and he appeals.</p>

<p>Appeal from District Court, Falls County; Prentice Oltorf, Judge. Allen Tisdole, alias Allen Tisdale, was convicted of murder, and he appeals.</p>

<p>Appeal from District Court, Bell County; F. M. Spann, Judge. Action by Feberico Moreno against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hopkins County; Geo. B. Hall, Judge. Suit by Mrs. Kate Russell against R. E. Russell for divorce. Decree for complainant, and defendant appeals.</p>