Volume 254 — South Western Reporter

<p>1. Divorce &wkey;>249(I) — Statute requires court to regard rights of children in making division of property.</p> <p>Rev. St. art. 4634, providing that the court decreeing divorce shall decree a division of the estate, having regard to the rights of each party and their children, contemplates that division of the estates must be made, and, being imperative in form, it is the court’s duty to regard the rights of children and give effect thereto by provision for their maintenance and education, if it can be done without injustice to the parents by any division of property short of a divestiture of title to real estate.</p> <p>2. Parent and child <&wkey;3 (I)— Father required fo support minor child.</p> <p>The father has the legal obligation to support his child, regardless of any physical incapacity to do so.</p> <p>3. Divorce <&wkey;249(3) — Wife awarded possession of husband’s farm for support and maintenance of minor child.</p> <p>Where an aged husband procured a divorce from his middle-aged wife, who was without means of support for herself or their child except from unmarried sons of a former marriage, and the farm owned by husband had furnished their home, and the wife, with the help of the minor son, made a living both for herself and her minor child thereon, possession, use, and occupation of the farm for the support and maintenance of the wife and the minor child will be awarded her until the child attains its majority, and thereafter the possession reverts to the husband.</p>

<p>1. Appeal and error &wkey;l062(2) — Refusal to submit question of proximate cause of contamination of water held not prejudicial error.</p> <p>In a suit for damages to plaintiff’s stock and premises from negligent construction and maintenance of defendant city’s sewer system emptying into a creek passing through plaintiff’s land, refusal to submit question whether contamination of the creek waters was the proximate cause of the damage, instead of submitting question as to what caused the damage, held- not prejudicial error, where the evidence supported finding defendant’s negligence caused the damage and the evidence of other sources of contamination was not sufficient to show pollution to the extent shown.</p> <p>2. Trial ®=»350(5) — Issue of proximate cause material only when evidence shows two or more causes either of which may cause injury complained of.</p> <p>The issue of proximate cause and the determination thereof can only be material when the evidence shows two or more distinct causes from either one of which the injury complained of might independently result.</p> <p>3. Waters and water courses &wkey;>76 — Damages inflicted by temporary nuisance in pollution of water measured by damages inflicted within two years preceding trial.</p> <p>In cases of a temporary and removable nuisance by pollution of water caused by a sewerage system, the measure of damages is that which has been inflicted within two years preceding the trial, and not the depreciation in the value of the premises at thq time of the construction of the work which occasioned the nuisance.</p> <p>4. Appeal and error <$=»107l(l) — Findings though conflicting held not to require reversal in view of pleadings and evidence.</p> <p>Findings that plaintiff’s dwelling was damaged in the amount of $920 and that his land and premises had not been permanently injured, though conflicting, held- not to require reversal in view of pleadings and evidence to support allegation of depreciation in rental value of premises, and to be construed as a finding that the rental value of plaintiff’s house had been depreciated in the amount of $920.</p> <p>5. Nuisance <&wkey;50(2) — Measure of damages stated.</p> <p>If the nuisance is of an occasional or temporary character, the measure of damages is the difference in the rental value of the premises before and after the injury, and, in assessing damages for the maintenance of a nuisance in the neighborhood of a residence or dwelling, the jury may look to such injury as occurs to the use of the property as a residence, taking into consideration the discomfort and annoyance to the owner.</p> <p>On Motion for Rehearing.</p> <p>6. Negligence <&wkey;61 (2) — Liability of original wrongdoer continues notwithstanding concurring act of third person.</p> <p>■ Where the act or neglect of a third person concurs with that of an original wrongdoer, both being efficient causes in producing the injury, the liability of the original wrongdoer continues, and the same is true if the negligence of the wrongdoer concurred with some accidental cause to which the injured party had not contributed.</p>

<p>Appeal from Harris County Court; Roy F. Campbell, Judge.</p> <p>Action by Ollie E. Thornton and another against J. O. Ross and another. From judgment for defendants, plaintiffs appeal.</p>

<p>1. Courts <&wkey;>!70 — Jurisdiction of county court in conversion suit not affected by failure to aiíege value of converted property in prior foreclosure suit embracing the conversion allegations.</p> <p>Where, in a suit to foreclose a chattel mortgage and collect a note, plaintiffs alleged that third parties had converted a three-fourths interest in four bales of mortgaged cotton, valued at $225, and on plea of privilege the cause as to conversion was transferred to the county court of another county, plaintiffs’ failure to allege the value of the mortgaged property in the original suit did not oust the county court of jurisdiction, where the balance of plaintiffs’ debt largely exceeded value of cotton, but was less than maximum jurisdictional amount.</p> <p>2. Chattel mortgages <&wkey;l77(I) — Mortgagee suing third parties for conversion of the mortgaged property need not produce valid judgment against mortgagor nor join mortgagor.</p> <p>Where, in a suit to foreclose a chattel mortgage and collect a note, plaintiffs alleged that third parties had converted cotton covered by the mortgage and on plea of privilege the cause as to conversion was transferred to county court of another county, a valid judgment against the mortgagor was not a condition precedent to liability of third parties for the conversion nor was the mortgagor a necessary party to the action, the amount of plaintiffs’ debt remaining after the foreclosure exceeding the value of the converted property.</p>

<p>1. Dedication <&wkey;4 6(1)— Unequivocal setting apart for public use ipust be shown to establish dedication.</p> <p>To establish a dedication of property to the public, an unequivocal setting apart to public use must be shown. •</p> <p>2. Dedication <&wkey;44 — Evidence held insufficient to dedicate property for park purposes.</p> <p>Evidence of the platting of a particular district, and sale of lots therein, some of them on, representations that a certain block would be reserved and dedicated to the public for park purposes, the slight improvement. and use of the block as a park by the public, held, insufficient to establish a dedication thereof.</p>

<p>Appeal from District Court, Cooke County; C. R. Pearman, Judge.</p> <p>Action by Nancy White Munroe; adminis-tratrix, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Abatement and revival &wkey;>43 — Bankruptcy proceedings do not ipso facto abate prior proceedings in state court.</p> <p>The pendency of bankruptcy proceedings does not ipso facto supersede and abate proceedings previously commenced against the bankrupt in a state court, and held, under Bankruptcy Act, § 11a (U. S. Comp. St. § 9595), that an action against a grain elevator company to recover damages for the alleged breach of a contract was improperly dismissed because of the institution of bankruptcy proceedings before the bankrupt had been discharged or plaintiff’s claim, filed in such proceedings, passed upon.</p> <p>2. Appeal and error <&wkey;7l4(5) — Statements in brief that order permitting substitution of pleading was entered without' notice held insufficient to impeach verity of record.</p> <p>Mere unsworn statements in a brief that the record was composed of substituted pleadings, and that the order permitting the filing-thereof was entered without notice, are insufficient to impeach the verity of.the record.</p>

R. Irby, Judge. Action by J. B. Burns against W. D. Martin. From a judgment dismissing garnishment proceedings, plaintiff appeals. J. C. Campbell sued and obtained a personal’judgment against A. J. Goswick as principal and W. D. Martin and J. B. Burns as sureties on a promissory note. After the rendition of the judgment in April, 1915, J. B. Burns, one of the sureties, paid the plain-, tiff J. C. Campbell the full amount of the judgment.

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Action by Mrs. M. Brown against the Guaranty Securities Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Ellis County: W. L. Harding, Judge.</p> <p>Action by Hill County, for the use and benefit of Special Road Districts Nos. 3, 6, 7, 10, and 12 of such county, against the American Surety Company of New York and othejs. Judgment for plaintiff, and defendants appeal.</p>

E. L. Roy, Judge. ■ Suit by the Farmers’ & Merchants’ National Bank and .others against Frank Jones and another, in which E. E. Edwards and others intervened. From a judgment refusing to foreclose their respective chattel mortgages, the named plaintiff and the named inter-vener appeal. On October 19, 1920, the Farmers’ & Merchants’ National Bank sued Frank Jones on certain promissory notes and to foreclose a chattel mortgage on certain cattle given to secure the notes.

O. Hamlin, Judge. Suit by Mrs. Lily Wafford, administratrix of the estate of Jack Wafford, deceased, and others, against E. S. Branch. Judgment for plaintiffs n. o. v., and defendant appeals.

R. Warren, Judge. Action by Mrs. Ora B. Smith against the Maryland Motor Car Insurance Company. Judgment for plaintiff, and defendant appeals. The appellant issued to appellee a policy of insurance on an automobile against direct loss or damage by fire “to an amount not exceeding the amount of insurance herein specified,” which was $1,800.

<p>Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.</p> <p>Suit by Mrs. G. M. Ellis and others against R. S. Chapman and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Suit by the Areola Sugar Mills Company against R. P. Doherty and another. From a judgment refusing an injunction, plaintiff appeals.</p>

<p>Error to Court of Civil Appeals of Fourth Supreme Judicial District.</p> <p>Action by W. S. Eldridge against C. P. Barreda. A judgment for defendant was reversed by the Court of Civil Appeals (233 S. W. 319), and plaintiff brings error.</p>

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

<p>Error to Court of Civil Appeals of Ninth Supreme Judicial District.</p> <p>Action by the Continental Gin Company against the Redville Gin Company and another. Order denying motion of defendant Thorndale Mercantile Company, and the sureties on its bond for replevin of the property sequestered, that judgment against them on the bond be discharged, was reversed by the Court of Civil Appeals (241 S. W. 260), and plaintiff brings error.</p>

<p>1. Appeal and error <&wkey;l85(2)— Judgment of foreclosure on petition not alleging value of security fundamental error.</p> <p>In a suit in a county court on a note for $230 and to foreclose a chattel mortgage lien on a plow rendition of judgment for plaintiff was fundamental error, where there was no averment as to the value of the security.</p> <p>2. Courts <&wkey;247(7)~Court will not certify question to the Supreme Court where conflict is with but one of several decisions.</p> <p>The court will not certify a question to the Supreme Court under Aots 3Sth Leg. (1923) c. 48, providing that, where the decision of the court is in conflict with an opinion of the Supreme Court, it shall be the duty of such court to certify the question to the Supreme Court for adjudication, where the holding, while conflicting with one decision of the Supreme Court, is in accord with other decisions.</p> <p>3. Trial &wkey;>!40(2) — Testimony of party sufficient to carry case to jury.</p> <p>The testimony of defendant alone that the note sued on was given for the accommodation of plaintiff requires that issue to be submitted to the jury.</p>

<p>1. Appeal and error <&wkey;>374(4) — Commissioner of insurance and banking is head of department n'ot required to give bond on appeal.</p> <p>Rev. St. art. 2105, exempting heads of any department of the state, prosecuting or defending an action in their official capacity from giving bond, includes, within its purview, the commissioner of insurance and banking as the head of a department.</p> <p>2. Appeal and error &wkey;»330(2) — Appeal by party in official capacity may be prosecuted by successor in office.</p> <p>After the overruling of a plea of privilege filed by a commissioher of insurance and banking, and the giving of a notice of appeal, a successor in office of such officer is empowered by Vernon’s Ann. Civ. St. Supp. 1918, art. 2099a, to prosecute the appeal.</p> <p>3. Banks and banking <&wkey;80( 10) — Action against Insolvent bank and banking copimis-missioner held properly brought in county where bank located.</p> <p>An action against a bank, the commissioer of insurance and banking, and a liquidating agent held properly brought in the county wherein the bank was located, and a plea of privilege filed by a commissioner’ to be sued in another county was properly overruled.</p>

<p>1. Courts <&wkey;>M55 — District court has jurisdiction of ail suits to enforce liens upon land.</p> <p>District court has jurisdiction of all suits to enforce liens upon land.</p> <p>2. Taxation <&wkey;I55 — Telegraph lines and poles for the purposes of taxation are regarded as realty.</p> <p>Under Rev. St. art. 7683, telegraph lines and poles for the purposes of taxation are regarded as realty.</p> <p>3. Courts <&wkey;il22 — Insufficiency of description in suit to enforce lien upon land will not defeat jurisdiction.</p> <p>Mere insufficiency of description being amendable will not defeat the jurisdiction of the district court in a suit to enforce a lien upon land.</p> <p>4. Appeal and error <§=»366(l) — On appeal from dismissal for want of jurisdiction, merits of case cannot be determined.</p> <p>On appeal from a judgment dismissing a suit for want of jurisdiction, the merits of the case cannot be considered.</p>