Volume 260 — South Western Reporter

<p>1. Indictment and information <§=>176 — Allegation of date of offense not binding on state.</p> <p>The date on which the indictment charges that the offense occurred is not binding on the state.</p> <p>2. Intoxicating liquors <§=>222 — Conviction of transportation under indictment not negativing exceptions held warranted.</p> <p>Proof of transportation of intoxicating liquors within the period of limitation before the indictment was filed and after the enactment of Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Yernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), dispensing with an averment that the transportation was not for medicinal or other excepted purposes, warrants conviction under an indictment not negativing such exceptions, though the date of the offense was misstated as of a time when such a negative averment was required.</p> <p>3. Intoxicating liquors <§=236(20) — Conviction of transporting held sustained by evidence.</p> <p>Evidence held, sufficient to sustain a conviction of transporting intoxicating liquors.</p> <p>^z»For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes</p>

<p>(. Judgment <@=>256(2)— Answer on immaterial issue affords no basis for judgment.</p> <p>Jury’s answer to a special issue, if the issue was immaterial, could afford no basis for judgment, and, if plaintiff was entitled to recover upon other issues, or upon the undisputed evidence, and no requests for submission of the other material issues were made, it was the court’s duty to so render judgment.</p> <p>2. Banks and banking <®=a47 (I) — Minority stockholder's protest against increase in stock held not to relieve him from liability to stock assessment.</p> <p>Since, under Rev. St. art. 532, the capital stock of state banks may be increased by a majority only of the stockholders, the fact that a minority stockholder protested an increase of stock would not relieve him of liability for stock assessment, at least upon the stock held by him prior to the increase.</p> <p>3. Banks and banking @=347 (I) — Unlawful increase in stock held not to relieve stockholder from assessment against shares previously owned.</p> <p>That an unlawful increase in the capital stock of a bank was made without the consent of a stockholder held not to relieve him from liability for an assessment against stock owned by him before such increase.</p> <p>@=3For other cases see same topic and KEY-NUMBER in all Key-Numbereá Digests and Indexes</p>

<p>Banks and banking <@=sl5 — Stockholder of insolvent bank held entitled to recover only amount of deposit in excess of par value of stock.</p> <p>A stockholder of an insolvent bank, on the stock of which a 100 per cent, assessment was levied by the banking commissioner, under Rev. St. arts. 552, 459, held entitled to recover from the depositors’ guaranty fund, as a depositor, only so much of his deposit therein as exceeded the full par value of his stock.</p> <p><g=3For other eases see same topic and KEY-NUMBKR. in ail Key-Numbered Digests and Indexes</p>

Error from District Court, McLennan County; H. M. Richey, Judge. Action by the First State Bank & Trust Company against Mattie Austin and others. Judgment for plaintiff, and certain defendants bring error. On, motion to dismiss writ.

<p>I.Injunction <&wkey;173 — Verified plea in motion to dissolve injunction held sufficiently pleaded and exception properly overruled.</p> <p>In a suit to enjoin a vendee of land from interfering with sale of timber by the original vendor under his lien and from collecting rents, a verified plea in defendant’s motion to- dissolve the temporary injunctions, alleging damage by the injunction preventing his collection of available rent from his financially irresponsible tenant, and that plaintiff had collected $217 as rent from such tenant, and agreed to hold the tenant harmless, with prayer for judgment for such rents and attorney’s fees, held sufficiently pleaded, and special exception thereto was properly overruled.</p> <p>2.- Vendor and purchaser &wkey;>285(l) — In lien foreclosure suit, judgment not naming or disposing of purchaser’s rights not final or bar to right of redemption.</p> <p>In a suit to foreclose vendor’s lien notes against vendees and a subsequent purchaser, judgment not naming such purchaser nor disposing of him, though granting the only relief vendor sought against him (possession of the land), was not final, and his right of redemption and possession were not affected thereby.</p> <p>3. Judgment &wkey;>l94 — Not final unless whole matter as to all parties is disposed of; “final judgment.”</p> <p>A judgment is not final unless the whole matter in controversy as to all parties be disposed of.</p> <p>TEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]</p> <p>4. Vendor and purchaser &wkey;»279, 285(1) — Subsequent vendee not necessary party; subsequent vendee must be made party to both judgment and suit to bar his equity of redemption.</p> <p>In a suit to foreclose a vendor’s lien on real estate, a subsequent vendee is not a necessary party, but to bar his equity of redemption he must be made a party to both judgment and suit, since otherwise he is not affected.</p> <p>5. Judgment &wkey;>707 — Parties interested in subject-matter not affected, unless made parties to suit and judgment.</p> <p>Rights of parties interested in the subject-matter in litigation are not affected by the judgment, unless they are parties to both suit and judgment.</p> <p>6. injunction <&wkey;l86(1) — Party enjoined may, by proper pleading, obtain such relief as he shows himself entitled to.</p> <p>In injunction proceedings, the party enjoined may, in his motion to dissolve the injunction, by proper pleadings and-proof obtain such relief as he shows himself entitled to, especially when relief other than statutory damages is shown.</p> <p>7. Injunction <®=»I86(i) — Party enjoined not estopped to claim money damages by failure to act.</p> <p>A party enjoined, having moved for dismissal at the next regular term of court when the injunction was returnable, was not estop-ped to claim money damages from the operation of the injunction by his failure to act earlier.</p> <p>tg^sFor o tiler cases see same topic and KE It-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from District Court, Bexar County ; Robt. W. B. Terrell, Judge.</p> <p>Action by H. P. Drought and another against the Duval County Ranch Company and others. Judgment for plaintiffs, and defendant named appeals.</p>

D. Manry, Judge. Action by Mrs. Y. L. Lilley, executrix of the estate of V. L. Lilley, deceased, against the Cleveland State Bank and others. Judgment for plaintiff, and named defendant appeals.

Action by Charles L. Conley and another against the Gulf, Colorado & Santa F6 Railway Company1. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (236 S. W. 521), and defendant brings error.

<p>1. Highways <&wkey;>l7 — Evidence insufficient to establish prescriptive right in highway.</p> <p>Evidence as to the use of a road through an uninhabited portion of the country, which at various times had been obstructed by fences, held insufficient to establish that the general public had acquired any prescriptive right therein.</p> <p>2. Highways <&wkey;4 — Essentials of highway by “prescription” stated.</p> <p>To establish a highway by “prescription” it must be proved that the general public under an adverse and uninterrupted claim of right, not on permission or sufferance of the owner, has used a certain well-defined line of travel without interruption or substantial change for ten years.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Prescription (In Law).]</p> <p>3. Highways <&wkey;4 — Highway by prescription may not be acquired over unimproved or unoccupied prairie land.</p> <p>A public road cannot be established by prescription while the land over which it runs is unimproved and unoccupied prairie land, over which people may travel at will in any direction.</p> <p>4. Easements &wkey;>I8(l) — Inconvenience does not create necessity giving rise to implied grant.</p> <p>Inconvenience in reaching one’s land does not create a necessity giving rise to an implied grant of a road of necessity.</p> <p>5. Easements <@==>18(4) — Implied grant of road of necessity held not to arise between parties in absence of privity of title.</p> <p>Where one seeking to enforce the opening of a highway over the land of another was not a grantee of defendant, held, there could be no right of -way by implied grant of a road ox necessity; there being no privity of title between the parties.</p> <p>On Motion for Rehearing.</p> <p>6. Highways <&wkey;8 — Highway by prescriptionmust rest on presumption of establishment by proper authority.</p> <p>A road by prescription must rest on the presumption that it was established by proper authority, and cannot exist where such au-thoriiy has been but recently created.</p> <p>7. Highways <&wkey;>6(2) — Obstruction to defeat prescriptive rights need not be-along whole way.</p> <p>An obstruction of a highway to destroy prescriptive rights acquired in it need not be along the entire .way, but is sufficient if it interrupts the line of travel and turns away from the used road the travel permanently and in an important way.</p> <p><§E3>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digest? «.nd Indexes</p>

<p>1. Banks and banking <§=»99 — President's guaranty of mote held! ultra vires but not illegal.</p> <p>Where note of a third person was sold by a bank to another bank, and its payment guaranteed by bank’s president without authority therefor, such transaction and guaranty was ultra vires, but not illegal, within Rev. St. art. 530, providing the bank officers cannot negotiate obligations received for money loaned, unless authorized by the board of directors at a regular meeting.</p> <p>2. Corporations <@=487(1) — Ultra vires not a defense where other party has performed contract.</p> <p>A corporation cannot defend on the ground of ultra vires, where the pther party to the contract has performed his obligations thereunder. and the corporation received the benefits. *</p> <p>3. Banks and banking <@=3101— Plea of ultra vires held no defense to action on guaranty.</p> <p>Where the guaranty of payment of a note was given by a bank to induce another bank to make a loan to a third person whereby the latter could make payment on its indebtedness to the first bank, and the money was paid directly to the first bank and applied on the third person’s indebtedness, plea of ultra vires would not defeat recovery on the guaranty.</p> <p>4. Guaranty <§=391 — Evidence held to warrant finding for .plaintiff on issue of consent to renew guaranteed note. v</p> <p>In action to recover money applied by defendant bank on an unpaid note alleged by it to have been guaranteed by plaintiff bank, evidence held to show that plaintiff’s liability on guaranty of payment of a note was discharged by unauthorized renewals and extensions of payment.</p> <p>5. Guaranty <§=327, 54 — Guarantor’s liability not extended by implication; beneficial alteration discharges guarantor.</p> <p>Liability of a guarantor cannot be extended by implication or otherwise, and .it does not matter that a proposed alteration would even be for his benefit since he may stand on the agreement.</p> <p>6. Guaranty <®=j72 — Condition of note held not to authorize renewal as respects guarantor; “maker.”</p> <p>Where guaranty of payment of a note was collateral thereto, guarantor was not a “maker,” and hence not affected by provision in note that makers and indorsers waived presentment for payment and consented that time of payment could be extended without notice; and unauthorized renewals of the note discharged liability upon the guaranty.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Maker.]</p> <p><§=»For other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Injunction <@=>I— Granted only where necessity therefor is clearly shown.</p> <p>The power to grant injunctions is an extraordinary one, which should be used sparingly, with the ntmost caution, and only where the necessity therefor is clearly and certainly-shown.</p> <p>2. Injunction <§=>143(2) — When injunction granted without notice stated.</p> <p>The power to grant injunctions should be exercised without notice to the persons, sought to be restrained only when the necessity is pressing, the threatened injury immediately imminent, and, if occurring, irreparable.</p> <p>3. Injunction «@=>143(2)— Allegations held to warrant temporary injunction without notice to defendant turning sheep into plaintiff’s sheep pasture.</p> <p>In an action to enjoin defendant from pasturing sheep on pasture constituting part of plaintiff’s sheep ranch, allegations that plaintiff was pasturing 8,000 head of sheep on the pasture, that the pasture was fully stocked, and would be prematurely exhausted if additional sheep were pastured thereon, that sheep which defendant threatened to turn into the pasture were infected with a contagious and infectious disease, and that plaintiff’s sheep were in good condition and free from disease, but would become infected if defendant was not restrained from turning his sheep into the pasture, held to warrant granting of temporary injunction without notice to defendant.</p> <p>4. Evidence <@=13 — Court judicially knows de. pendency of pasturage on rainfall.</p> <p>The court judicially knows that ranges for the pasturage of live stock in southwest Texas are dependent not so much on man’s industry or intelligence as upon rainfall.</p> <p>5. Appeal and error <@=>479(1) — Suspension pending appeal of operation of temporary injunction against alleged threatened! irreparable injury held error.</p> <p>In action to enjoin defendant from turning his sheep into pasture constituting a part of plaintiff’s sheep ranch'in which the plaintiff’s allegations that the pasture was stocked to its normal capacity with plaintiff’s sheep, that defendant’s sheep were infected with a contagious disease, and that if defendant was not restrained from turning his sheep into the pasture the pasture would be prematurely exhausted, and plaintiff’s sheep would become infected with the disease, and the threatened injury was irreparable, warranted a temporary injunction against such injury, it was error, until the allegations were disproved on hearing, to suspend operation of the injunction pending^ appeal.</p> <p>6- Public lands <@=>17 — Owner of sheep held not entitled to turn them into already fully stocked pasture of another. ■</p> <p>The mere fact'that owner of sheep had no' pasture into which to turn his sheep other than a pasture already fully stocked with sheep of other person in rightful possession thereof did not give first owner the right to turn his sheep into such pasture.</p> <p>4i^r>For other cases see same topic and KET-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Mines and minerals &wkey;>74 — Breach of collateral agreement to' write opinion as to title to land held no defense to note.</p> <p>Agreement of one of the sellers of an oil lease to write an opinion on the title of the land, made after assignment of the lease and delivery of the note and conclusion of the trade, held, no part of the consideration of the note, but a collateral and subsequent agreement, made without consideration for maker’s accommodation and failure to comply therewith by seller, afforded no defense to the note.</p> <p>2. Evidence <&wkey;>413 — Evidence of notice given of outstanding liens inadmissible to defeat liability on covenant against incumbrances by assignor of lease.</p> <p>Where assignor of an oil lease covenanted against incumbrances, in action on notes given for the lease, evidence of assignor and his privies that before he conveyed he advised assignees of outstanding liens was inadmissible to defeat any liability on the covenant.</p> <p>3. Evidence <&wkey;434(5) — Evidence of outstanding liens held admissible to rebut fraud alleged.</p> <p>Where assignor of an oil lease covenanted against incumbrances, in his action on notes given for the lease, evidence of assignor and his privies that before he conveyed he advised assignees of outstanding liens on the land was admissible in rebuttal of the issue of fraud presented by assignees.</p> <p>4. Cancellation of instruments &wkey;>l5 — Vendor and purchaser <&wkey;307 — Remedy for mere breach of covenant is at law for damages; damages, from breach of covenant defense to action on purchase-money notes.</p> <p>In case of an executed conveyance, the remedy. for mere breach of covenant, unaccompanied by equitable grounds of rescission, is not the equitable one of rescission, but is at law for damages, and in proper case can be set up in bar of purchase-money notes.</p> <p>5. Covenants <§^>96(1) — No right of action for breach of covenant against incumbrances till assignees were dispossessed or had discharged incumbrances.</p> <p>Where," in assignment of an oil lease, covenant against incumbrances was technically broken when made, no right of action arose thereon, until assignees had been dispossessed by foreclosure or had been compelled in protection of their estate to discharge incum-brances.</p> <p>6. Mines and minerals ¡&wkey;74 — Presumption obtains that assignees of lease assumed risk incident to liens and relied! on warranty.</p> <p>Where assignor of an oil lease covenanted against incumbrances, and after execution, on examination of abstract, assignees were informed as to purchase-money liens, having accepted the conveyance with the' covenant against incumbrances, the presumption obtains that they intended to assume the risk incident to the liens and rely on warranty, and in action on notes given for purchase of the lease it became their duty to rebut such presumption.</p> <p>7. Mines and minerals &wkey;s74 — No right of action established for breach of covenant which defeated purchase-money note.</p> <p>Where assignees of an oil lease learned shortly after execution that covenant against incumbrances was broken, but continued to claim under the assignment to them, in assignor’s action on purchase-money notes, not having been dispossessed nor compelled to pay the incumbrances to protect their lease, no right of action for breach of covenant was established by assignees to defeat the note.</p> <p>8. Acknowledgment <§=^16 — Alleged incompe-tonoy of notary to take acknowledgment held not to affect assignment of lease.</p> <p>Acts 36th Leg. (1919) 2d Called Sess. c. 81, § 2 (Vernon’s Ann. Civ. St. Supp. 1922, art. 5904ol7), contains no provision for. recording and filing assignments of oil leases such as is required by Acts 35th Leg. (1917) e. 83, § 18 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904r), and requirements of the latter section as to recordation, claimed to be made applicable by section 19 of the later act, if applicable would not affect the assignment of a lease claimed to be void because of incompetency of the notary to take acknowledgment, where his incompetency was not apparent on the face of the assignment.</p> <p>e£=>I?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from District Court, Wichita County; W. E. Fitzgerald, Special Judge.</p> <p>Suit by R. M. Waggoner against H. M. Munger and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Carriers <&wkey;320(24) — Whether there was banana peeling on vestibule platform held one for jury.</p> <p>In a passenger’s action for personal injury, alleged to have been caused from a fall when he stepped on a banana peeling on the vestibule platform of the coach, where there was evidence tending circumstantially to rebut plaintiff’s witness’ direct testimony concerning the presence of the peeling on the platform, such question was one for jury.</p> <p>2. Carriers <&wkey;347( 10)— Negligence in going onto vestibule while train in motion held for Jury.</p> <p>Whether passenger intending to alight at a station was negligent in going onto the vestibule while the train was in motion held/ under the evidence for the jury.</p> <p>3. -Negligence &wkey;>l36(l4) — Question for jury.</p> <p>Negligence, whether actionable or contributory, is ordinarily a question of fact for the jury.</p> <p>4. Evidence &wkey;j2ll — Evidence of admissions by party as to testimony in a former action as to injuries held not too remote on issue of contributory negligence.</p> <p>Where a prior accident to plaintiff occurred in 1914, and trial was had in 1918, in an action for another injury occurring in 1921, evidence of his admissions in the prior case as to the serious nature and continuance of his injuries was not too remote to be considered by jury on issue of contributory negligence in going on the platform of a moving car to make a hurried exit when the train stopped, and on issue whether any part of his present suffering was attributable to prior injury.</p> <p>5. New trial <&wkey;l02(5) — No lack of diligence in failing to make inquiry of adverse party’s claim agents.</p> <p>Where newly discovered evidence of the existence of a banana peeling on the vestibule platform, alleged to have been the cause of plaintiff’s fall and injury, was that of claim agents of defendant, it was not necessary to a claim of diligence by plaintiff that he should show that he had applied to the claim agent preparing the defense to ascertain whether he or his associate knew of any facts material to the case which they did not intend to disclose at the trial.</p> <p>6. New trial <&wkey;l04(3)— Newly discovered evidence held not cumulative but competent on issue.</p> <p>In a passenger’s action for personal injuries, alleged to have been caused by slipping on a banana peeling on the vestibule of the coach, where plaintiff’s witness stated he examined the platform immediately after plaintiff’s fall, and found a banana peeling thereon, newly discovered evidence that defendant’s claim agent after the accident found a banana peeling on the step, was not cumulative but competent.</p> <p>7. New trial <&wkey;l08(4) — Newly discovered evidence held such as might probably produce different result.</p> <p>In passenger’s action for injuries alleged to have been caused from slipping on a banana peeling on vestibule platform, where jury, notwithstanding positive evidence thereof, found there was no banana peeling on the platform, newly discovered evidence of defendant’s claim agents that they found a banana peeling on the step was such as might probably produce a different result on another trial.</p> <p>8. Appeal and error &wkey;>55l — Newly discovered evidence considered when presented by bill of exceptions only.</p> <p>Newly discovered evidence urged as a ground for new trial presented by bill of exceptions only should be considered.</p> <p>9. New trial c&wkey;99 — Refusing new trial for newly discovered evidence held error.</p> <p>Where lack of diligence was not shown in procuring witnesses whose newly discovered evidence was relied on for new trial, and such evidence was not cumulative, nor incompetent, but might produce a different result, refusal of new trial was error.</p> <p>iS=»Por Otilar oases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Action by Ed. Dato against Geo. W. Armstrong & Co., Inc. Judgment for defendant was affirmed by the Court of Civil Appeals (245 S. W. 955), and plaintiff brings error.</p>

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District. Mandamus by Herman Mahnke and others against M. O. Pfeffer and others. Judgment for relators, and defendants appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Action by the City of Dallas against the Dallas Consolidated Electric Street Railway Company and others, wherein the Texas Bit-ulithie Company intervened. Judgment for defendant on an appeal by intervener was reversed and the cause remanded by the Court of Civil Appeals (Texas Bitulithic Co. v Dallas Consol. Electric St. R. Co., 248 S. W. 746), and defendants bring error.

Eighth Supreme Judicial District. Action by'Geo. S. Allison & Sons against John T. Hamic and anotiher. An order overruling defendants’ plea pf breach was refused, and the case was ordered transferred by the Court of Civil Appeals (247 S. W. 918), and plaintiffs bring error.

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Action by M. E. Dansby against the National Liberty Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (251 S. W. 556), and defendant brings error.</p>

<p>Licenses <&wkey;7 (3) — Statute imposing tax on traveling shows held discriminatory and invalid.</p> <p>' Acts 38th Leg. 3d Called Sess. (1923) .c. 6, relative to an occupation tax on owners of amusements, and fixing a tax on traveling shows, but providing (section 2) that the act should be inapplicable to traveling shows giving exhibitions in regularly established theaters subject to an occupation tax, held discriminatory and invalid, under Const, art. 8, § 2.</p> <p>«g:»For other cases see same topic and K1SV-JNUMBER in all Key-Numhered Digests and Indexes</p>

P. Kinnard, Judge. Suit by the Inner Shoe Tire Company against A. Tonn and another, in which the Tonn Garage was made a party defendant. Judgment for plaintiff, and defendants appeal.

R. Chapman, Judge. Action by the Stamford Mill & Elevator Company and others against James C. Davis, Director General of Railroads, and others. From a judgment for plaintiff against the named defendant, and judgment in favor of the unnamed defendants, the named defendant appeals.

<p>Appeal from pistrict Court, Smith County;</p>

Proceeding by the State against the Abilene & Southern Railway Company and others. Judgment for the State affirmed (199 S. W. 878), and defendants bring ’error.

<p>Error from District Court, Galveston County; J. C. Canty, Judge.</p>