7 1 3 8 9 u Q C / UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY or ... A. Hawkins, Jr. E A. HAWKINS. JR -r A tanU Noisry PcJlj GALVESTON. TEX T1IK RULES OF PRACTICE IN THE CIVIL COURTS OF RECORD OF THE STATE OF TEXAS BY JOHN SAYLES COUNSELLOR AT LAW THIRD EDITION VOL. I ST. LOUIS. MO. THE GILBERT BOoK COMPANY L896 \ Entered according to act of Congress, in the year 189C, by THE GILBERT BOOK COMPANY, In the office of the Librarian of Congress, at Washington. (d 82 *> 3 V.I PREFACE. Since the publication of the former editions of this work, the 'lizatiou uiul jurisdiction of the appellate courts have been cha Hired, with a view to facilitate the dispatch of business, which has increased in proportion with the wealth and population of the state. Changes in the rules of practice have been made to some extent Mtutory provisions and by the rules of the Supreme Court. The application of these rules to varying facts is illustrated in a number of the decisions of the Supreme Court and of the Courts of Civil Appeals. The purpose of the author has been to arrange the rules of court, the statutory provisions relating to the mode of procedure in courts of record of this state, and to show the application cf 'these rules t<> varying combinations of facts in decided cases. The work is based on the Constitution as amended in 1891, the Revised Statutes of 1S95, the Rules of Procedure as amended and promulgated by the Supreme Court in 1892, and since that date, and the decisions of the appellate courts, including volume 87 of the Supreme Court Reports, volume 8 of the Civil Appeals Reports, ami volume 31 of the Southwestern Reporter; also Unreported '\s and the Decisions of the Court of Appeals in Civil Cases. The original intention was simply to revise the last edition of th.- author's work on Practice, but it soon became evident that, in order that the work might be a safe and reliable guide, it would be necessary to rewrite a large part of it, and that a work of one vol- ume would not be a satisfactory presentation of the subject. The Revised Statutes have l>een adopted since the last revision, many and important changes and additions have been made, the courts have been reorganized, amended rules have been adopted, and there is MO\\ a reasonable expectation that not man}' changes in the law 8 PREFACE. \vill !>* made in the near future, and that the work will remain for time as a standard authority on Practice in Courts of Record, author and publisher are confident that the profession would rather pay a fair price for a complete work than a mere nominal j rice for one that would be only a partial guide. JOHN SAYLES. ABILENE, TEXAS, May, 18Q6L PKKFACK To Till- FIRST EDITION. The substance of the following work was delivered, in the f< of lecture*, to the law class of Baylor I'niversity, in the summer "i The lectures were favorably received by the class, and such friends as have since seen them; and their solicitations, added to a e to be useful, and in some measure to lighten the labors of th> I'.ench and the Bar, have induced me to prepare the work in its present form. The need of such a work has long been felt by the legal profes- sion in Texas. Our legislature, our system of procedure, the very organization and functions of our courts, are all peculiar. Treat- ises on the practice of the English courts, and of our sister states are, therefore, comparatively useless here. In the course of my practice at the bar, this fact grew daily more apparent: and I be- came convinced that such a work as that now offered to th public- would, if properly executed, meet with encouragement from the profession, and supply a want much felt by the student. In this compilation I have not aimed at originality; the sub- \ as one which neither required nor permitted it. As a gen- eral rule, I have abstained from original disquisitions, and confined inv-elf to an enunciation of established principles, without he>itat- ir.ir. however, to discuss the soundness of any which seemed to be questionable. My endeavor has been to produce a work of authority, founded upon the leci>ions of the courts, which might show what our pres- ent system of practice is, and serve as a basis for further system- i/.ing it. In this I hope I have succeeded: I had no higher aim. .l"ii.\ SAY: BKK.MI AM. Auirnst. 1850. PREFACE TO THE SECOND EDITION. The many changes in our statutes in relation to the practice in tlu- District and Supreme courts since the first publication of this work, in KS, and the numerous decisions embraced in seventeen volumes of the State Reports, have rendered necessary the addition of a large amount of new matter to the present edition. A full synopsis of the decisions of our Supreme Court has been ^iven, when necessary to explain or illustrate the text; and it is hoped that by this means any errors in the text will be readily detected and corrected. I am indebted to B. H. Bassett, Esq., for the chapter on Execu- tion, with the very full notes exhaustive of the decisions of the Supreme Court upon that important subject JOHN SAYLES. BREXHJUI, July 1, 1873. TABLE OF CONTENTS. CHAPTER L Sections. INTRODUCTION ................... 1-33 CHAPTER IL OF COURTS AND JUDGES ............... 34-64 CHAPTER IIL JURISDICTION ................... 65-78 CHAPTER IV. JURISDICTION AND POWERS OP THE SUPREME COURT AND COURTS OF CIVIL APPEALS ................. 79-103 CHAPTER V. ORIGINAL, APPELLATE AND SUPERVISORY JURISDICTION OP THE DIS- TRICT AND COUNTY COURTS ............. 103-120 CHAPTER VL JURORS How SELECTED AND SUMMONED ......... 121-138 CHAPTER VIL PARTIES TO ACTIONS ................ 139-196 CHAPTER VIIL OBJECTIONS FOR DEFECT OF PARTIES ........... 197-201 CHAPTER IX. INTERVENTION OF THIRD PARTIES . . .......... , > o2--,M<; CHAPTER X. OF THK VKMK OF ACTIONS CHAPTER XL Ti"N AND DOCKETING OF SUITS ........... 253-262 CHAPTER XII. TATION BY PERSONAL SERVICE ........... 263-301 CHAPTER XIII. CITATION BY I't I'.U--ATI<>N ... 802-313 U TABLE OF CONTENTS. CHAPTER XIV. Sections. 1F.MKNT AND DISCONTINUANCE OF SUITS ... ... 314-339 CHAPTER XV. OBAHOI ot vi.\u: . . . .' 340-340 CHAPTER XVL :ITY FOR COSTS 347-355 CHAPTER XVII. UD.VTK'N OF SUITS AND JOINDER OF CAUSES OF ACTION , . . 350-367 CHAPTER XVIIL PERSONAL ATTENDANCE OF WITNESSES 3C8-37G CHAPTER XIX. DEPOSITIONS OF WITNESSES 377-391 CHAPTER XX. DEPOSITIONS OF PARTIES 393-397 CHAPTER XXL NOTICE TO PRODUCE PAPERS 398-402 CHAPTER XXIL r. .NTI.M-ANCE OF A CAUSE 403-433 CHAPTER XXIIL OF APPEARANCE DAY AND JUDGMENT BY DEFAULT 431-141 CHAPTER XXIV. CALL OF CASES ISSUES OF LAW 442-450 CHAPTER XXV. TRIAL BY THE COURT 451-453 CHAPTER XXVL OF THE RIGHT OF TRIAL BY JURY 454-463 CHAPTER XXVIL DRAWING AND IMPANELING THE JURY 464-172 CHAPTER XXVIIL 'M-KNINO THE CASE 473-476 CHAPTER XXIX. COMPETENCY OF WITNESSES 477- i80 CHAPTER XXX. STATUTORY RULES OF EVIDENCE 481-515 j.viii.r 1.") CHAPTKR XXXI. Section*. "). CHAPTER XXXII. ;;RER TO EVIDENCE 531,532 CHAPTER XXXIII. I IONS 5: CHAPTER XXXIV. MENT OF COUNSEL 543-557 CHAPTER XXXV. ( HAIK.IM; THE JURY 558-583 CHAPTER XXXVL DELIBERATIONS OF THE JURY RETURNING THE VERDICT .... 584-601 CHAPTER XXXVII. THK YI.KMCT 603-612 CHAPTER XXXVIIL IT 613-616 CHAPTER XXXIX. JUDGMENTS 617-642 CHAPTER XL. ; SSION OF JUDGMENT 643-647 CHAPTER XLI. STATEMENT OF FACTS 648-654 CHAPTER XLIL NS OF PRACTICE 655-662 CHAPTER XLIIL TRIAL AND ARREST or JUDGMENT 663-685 CHAPTER XLIV. HII.L FOR A NEW TKIAI 686-689 CHAPTER XLV. RKMITTITUR AND AMENDMENT OF JUDGMENT 690-696 ril.u-TKK XLVL r PAHTIRS 697-700 CHAITER XI. VII. OK TKIAI. HY AN At PI. 701-706 16 TABLE OF CONTENTS. CHAPTER XLVIIL Sections. OF NOTICIS AND MOTIONS 707-712 CHAPTER XLIX. COSTS OF SUIT 713-736 CHAPTER L. COSTS IN THE APPELLATE COURTS 737-745 CHAPTER LI. ARBITRATION UNDER THE STATUTE 746-756 CHAPTER LIL ARBITRATION AT COMMON LAW 757-760 CHAPTER LIII. SL-BSTITUTION OF LOST RECORDS AND PAPERS 761-765 CHAPTER LIV. ( "Mia'TATioN OF TIME 766-772 CHAPTER LV. AFFIDAVITS. OATHS AND AFFIRMATIONS 773-775 TEXAS CIVIL PRACTICE. CHAPTER I. INTRODUCTION. g 1. The couris. -. Justices of the peace. 3. Jurisdiction of the county court. 4. The district court. < 'ourts of civil appeals. 6. The supreme court. 7. Judges; proceedings when disqual- ified. 8. Practice in civil cases. 9. The venue. 10. The parties; intervention of third parties. 11. Institution of suits; security for costs. 12. The citation, or notice to the de- fendant. ppearance; default. 14 Abatement and discontinuance. 1". Change of venue. 16. Postponement and continuance of cause. 17. Preparation for trial; taking dep- ositions and procuring the at- tendance of witnesses. 18. Call for trial 19. The jury. 20. Opening the case. 21. The evidence. 22. Examination of witnesses. 23. Argument of counsel 24. Charging the jury. J."i. Nonsuit. 26. Deliberations of the jury; return- ing the verdict. 27. New trial and arrest of judgment. 28. Appeals and writs of error. 29. Trial in courts of civil appeals. 30. Error to a court of civil appeals. 31. Judgment liens. 32. Execution. 33. How to conduct a lawsuit l . The courts. The judicial power of this state, in civil cases, is vested in one supreme court, in courts of civil appeals, in district courts, in county courts, in courts of justices of the peace, and in such other courts as may 1..- provided by law. The existence and organization of court* is prescribed by the organic law, and in this respect a iv iit-yond the control of the legislature. The character of their jurisdiction, whether original or appellate, is also prescribed, but beyond this very much is left to the discretion of the legixla- The legislature may establish such other courts as it may (l.-.-m nt-i ary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto. 1 i Const, art. V, ? 1. See chapters II, IV and V, post. 18 INTRODUCTION. [ 2, 3. 2. Justices of the peace. The practice in justices' courts is not considered in this work. These courts have original jurisdiction in civil matters of all cases where the amount in controversy is $200 or less, exclusive of inter- est, of which exclusive original jurisdiction is not given to the dis- trict or county courts, and of cases of forcible entry and detainer. They have also power to foreclose mortgages and enforce liens on personal property, where the amount in controversy is within their jurisdiction. Justices' courts have no jurisdiction of suits in behalf of the state to recover penalties, forfeitures and escheats, of suits for divorce, of suits to recover damages for slander or defamation of character, of suits for the trial of title to land, or of suits for the enforcement of liens on land. In all cases within their jurisdiction, they may issue writs of attachment, sequestration and garnishment. 1 3. Jurisdiction of the county court. The county courc has exclusive original jurisdiction in civil cases when the matter in controversy exceeds in value $200 and does not exceed $500, exclusive of interest, and concurrent jurisdiction with the district court when the matter in controversy exceeds $500 and does not exceed $1,000, exclusive of interest. 2 The county court does not have jurisdiction of any suit to recover damages for slander or defamation of character, nor of suits for the recovery of lands, nor of suits for the enforcement of liens upon land, nor of suits in behalf of the state for escheats, nor of suits for divorce, nor of suits for the forfeiture of the charters of incorpora- tions and incorporated companies, nor of suits for the trial of the right to property levied on by virtue of any writ of execution, se- questration or attachment, when the property levied upon shall be equal to or exceed in value $500. The county court has appellate jurisdiction in civil cases over which the justices' courts have original jurisdiction, when the judg- ment of the court appealed from or the amount in controversy shall exceed $20, exclusive of costs. It also has power to hear and deter- mine cases brought up from the justices' courts by certiorari, under the provisions of the title relating thereto. Subject to these limitations, the county court is authorized to 1 Const, art. V, 19; R. S. 1568, 1571, 1573. It will be noticed that the juris- diction conferred on justices' courts is not made exclusive. See 104, post. 2 Const, art. V, 16. There is a conflict in the provisions of the constitution on the concurrent jurisdiction of the two courts. Jurisdiction is given to the district court when the amount in controversy is valued at $500, exclusive of in- terest, and exclusive jurisdiction is given to the county court in such a case. See Const, art V, 8; R S. 1099, 1157. See, also, chapter V, post, and especially 108 and 113. 4.] RODUCTI' 19 hear and determine any cause which is or may be cognizable by courts, either of law or equity, and to grant any relief which could be granted by said courts, or either of them. 1 County courts may issue writs, 2 hear and determine motions against sheriffs and other officers, 1 and may punish for contempt.* The legislature has power, either by local or general law, to di- minish or change the jurisdiction of county courts; but when any such change is made, the jurisdiction of the other courts must be made to conform thereto. 4 The county court is a court of record. There is a court in each county, which must hold at least four terms a year.' ; . The district court. district court has original jurisdiction in civil cases: 1. Of all suits in behalf of the state to recover penalties, forfeit- ures and escheats. 2. Of all cases of divorce. 3. Of all suits to recover damages for slander or defamation of character. 4. Of all suits for the trial of title to land and for the enforce- ment of liens thereon. 5. Of all suits for trial of right to property levied on by virtue of any writ of execution, sequestration or attachment, when the prop- levied on shall be equal to or exceed in value $500; and 6. Of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in con- troversy shall be valued at or amount to $500, exclusive of interest. 7 7. Of contested elections. 8 The district court also has appellate jurisdiction and general con- trol in probate matters over the county court established in each county for appointing guardians, granting letters testamentary and of administration, probating wills, for settling the accounts of ex- ecutors, administrators and guardians, and for the transaction of business appertaining to estates. It has appellate jurisdiction and al supervisory control over the county commissioners' court, with such exceptions and under such regulations as may be pre- scribed by law; and has general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not pro- 'R. S. Ho?. 1159,1162. 'Const, art. V, S 16; R S. 116& R S. 1 160. See 116, post. R s. iir.i: ^ 60 and 61,jxwf. Const , art. V. ? ,>j; K! win v. Blanks, 60 T. 583. Const, art. V. 15; R & 1167. 7 See the note to 3, supra. Const, art V, 8; R. S. 1098. 20 INTRODUCTION. [ 5. vided by law or the constitution, and such other jurisdiction, orig- inal and appellate, as may be provided by law. 1 Subject to the limitations !above stated, the district court is au- thorized to hear and determine any cause which is or may be cog- nizable by courts, either of law or equity, and to grant any relief which could be granted by said courts, or either of them. 2 The district court may hear and determine motions against sher- iffs and other officers and attorneys, 3 may issue writs, 4 and may - punish any person guilty of a contempt. 5 t The legislature has full power to divide the. state into judicial districts. A district court must be held in each county in the state. at the county seat, at least twice a year, but beyond this the regu- lar and special terms of the court are left to the legislature. 6 5. Courts of civil appeals. The state is now divided into five supreme judicial districts, in each of which is established a court of civil appeals. Under the constitu- tion the appellate jurisdiction of each court is co-extensive with the limits of its district, and extends to all civil cases of which the county court or district court has original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. These courts may have such other jurisdiction, original and appellate, as may be prescribed by law. 7 By statute the appellate jurisdiction of the courts of civil appeals extends to civil cases within the limits of their respective districts: 1. Of which the district court has original or appellate jurisdic- tion. 2. Of which the county court has original jurisdiction. 3. Of which the county court has appellate jurisdiction when the judgment or amount in controversy shall exceed $100, exclusive of interest and costs. The judgment of the courts of civil appeals is conclusive in all cases upon the facts of the case, and a judgment of such courts is conclusive on facts and law in the following cases, nor shall a writ of error be allowed thereto from the supreme court, to wit: 1. Any civil case appealed from a county court or from a district court when under the constitution a county court would have had original or appellate jurisdiction to try it, except in probate mat- ters and in cases involving the revenue laws of the state or the validity of a statute. 1 Const, art V, 8; R S. 1C99. 2 R. a 1106. 'RS. 1100. * Const, art V, 8; R S. 1107; U8, post. s R S. 1101. See g 60, 61, post. Const, art V, 7; R S. 1111-1119. 7 Const, art V, 6; R S. 996. 6.] IN : 21 2. All boundary. 3. All cases of slander and divorce. 4-. All cases of c.ntr>ted elections of every character other than -ate nthVes, except where the validity of a statute is attacked by the decision. The judgments of the courts of civil appeals are final in all ap- froni interlocutory orders appointing receivers or trustees, or such other interlocutory appeals as may be allowed bylaw, and the judgments ns of law arising in cases in the courts of civil appeals in which the judges of a court may disagree, or where the several courts of civil appeals may hold differently on the same question of law. or where a statute of the state is held void. 7 J5y virtue of the R S. 996, im See chapter IV, post. 2 Const, art. V, g 6; R S. 987. R. S. 987. R a 997, 1000. Id S. *M*\ .'if. Const, art. V. $52: R S. 93a 7 Const, art V, g 3. See chapter IV, pott. 22 INTRODUCTION. [ 6. statute its jurisdiction extends to questions of law arising in all civil cases of which the courts of civil appeals have appellate but not final jurisdiction; and all causes are carried up by writs of error issuing from the supreme court to the courts of civil appeals upon linal judgment, and not on judgments reversing and remanding causes, except in the following cases, to wit : 1. Where the state is a party, or where the railroad commission- ers are parties. 2. Cases which involve the construction and application of the constitution of the United States or of the state of Texas or of an act of congress. 3. Cases which involve the validity of a statute of the state. 4. Cases involving the title to a state office. 5. Cases in which a court of civil appeals overrules its own de- cisions or the decision of another court of civil appeals or of the supreme court. 6. Cases in which the judges of any court of civil appeals may disagree. 7. Cases in which any two of the courts of civil appeals may hold differently on the same question of law. 8. When the judgment of the courts of civil appeals reversing a judgment practically settles the case, and this fact is shown in the petition for writ of error. 1 When a party intends to remove the cause to the supreme court by writ of error, he must make an application for a rehearing in the court of civil appeals, and if such application is overruled, he may present his petition to the supreme court. ' The petition for the writ should be as brief as possible, and need only contain the requisites prescribed by the statute, as hereinafter stated in the chapter relating to writs of error. 2 The supreme court has power, upon affidavit or otherwise, to as- certain such matters of fact as may be necessary to the propel exercise of its jurisdiction. 3 It may issue writs of mandamus to compel a judge of the district court to proceed to trial and judg- ment, 4 and may have original jurisdiction to issue writs of qu warranlo and mandamus in all such cases as may be specified by law, except as against the governor of the state. 5 The supreme court and the justices thereof have power to issue writs of habeat corpus, as may be prescribed by law, and to issue writs of man* 1 R S. 940, 941. As to what judgments of the courts of civil appeals are co elusive on the law and the facts, see 5, supra. - R S. 1030; Rule 1 of Sup. Ct. Rules. Const, art. V, 3; R S. 945. R S. 949. Const, art V, 3; R S. 946. . 8.] IVIIMI>; cii"X. 23 procedend / Const, art. V, g 11: R S. 969, 1021, 1068, 1129. Const, art. V. g 11; R & 969, 1021, 1069, 1130, 1131. See chapter II, post. { Const, art. V, < 11; R S. 1108. fi R S. 1119, 1169. R. S. :>*.'.'. :5& Const, art V, 25; R S. 944, 947. 24: INTRODUCTION. [ 9, 10. and what, under the common law, were t\vo separate jurisdictions, are blended into one. There is no distinction between law and equity, so far as they affect the practice of the court. A legal and an equitable cause of action may be united in the same suit; an equitable defense can be interposed to a legal cause of action, and a Iciral defense to an equitable cause of action; or the defendant may rolv upon both a legal and an equitable defense. While there is no difference in the practice in legal and equitable cases, there are also no forms of action adapted to particular remedies, and the prac- titioner is in no danger of hazarding his case by a failure to pursue his remedy in a particular way. The action of trespass to try title is governed by statutory rules, to some extent borrowed from the common law, and is not within the general rule above stated. 1 9. The venue. After it is determined that a suit is necessary and proper, an im- portant inquiry is as to the venue, or the county in which the suit must be brought. The statute is very full and specific on the sub- ject, leaving little room for error. The rule is, subject to several carefully-stated exceptions, that an inhabitant of the state must be sued in the county in which he has his domicile ; but the privilege may be waived. 2 10. The parties; intervention of third parties. The statute is not very full on the subject of parties, and resort in most cases must necessarily be had to the decisions of the courts. 3 An infant may sue by next friend, and a guardian ad litem will be appointed for a minor defendant, where he has no guardian in this state. 4 Any third person claiming an interest in the subject-matter of a suit may intervene may become a party and have his right de- termined. It must be borne in mind that the interest claimed must be in the subject-matter, and not in some incidental or collateral matter. If the suit is on a money demand, property on which a writ of attachment may be levied is not the subject-matter of the suit, and a person claiming the property cannot have his interest tried by intervention. His remedy is by the statutory proceeding for a trial of the right of property, action against the officer for dam- ages, or against the purchaser at a sale of the property to recover the property. For {he protection of the defendant a third party may be required to interplead and show his interest in the subject- i R S. 1191. 2 R a 1194; Peveler v. Peveler, 54 T. 53; Masterson v. Cundiff, 58 T. 472; Walker v. Stroud, 6 S. W. Rep. 202. See chapter X, post. R S. 1196-1211. See chapter VII, post. R S. 1210, 3498u-34980. 11.] INTRODUCTI' mutter, if any. The right to intervene is upon leave of court and no tire to the par 11. Institution of suits; security for costs. Kverv suit is commenced by filing the petition. The petition must l>e - tiled," that is, deposited with the clerk of the proper court, whose duty it is to indorse on it the day on which it was tiled, together with its proper "file" number. Every suit is num- hereil consecutively, in the order in which it is filed; and the file number is tin? number belonging to a particular suit, and should be indorsed upon all papers tiled in that suit. The clerk must make an entry in a docket kept for that purpose, showing the num- ber of the .suit, the names of the parties and their attorneys, the t of the suit, the officer's return, and all other proceedings in the siiit. specifying the time they were had. 2 The commencement of suits and the service of process on Sunday or on a legal holiday are prohibited, except in case of injunction, attachment or seques- tration. 3 Before issuing the writ of citation, the clerk may require of the plaintiff t unless he is suing as an executor, administrator or guard- ian i security for costs; which is an undertaking upon the part of the surety to pay all costs that maybe adjudged against the plaint- iff. If, however, the plaintiff makes affidavit, before the clerk, that he is too poor to pay the costs of court and is unable to give secu- rity therefor, he is entitled to all process free of costs, and cannot be required to give security. The clerk has the right to contest,. by proof or otherwise, the inability of the party to pay costs or to give security for the same. The matter is tried before the judge at the next term after filing the contest. The plaintiff may, at any time before judgment, on motion of the defendant or any officer of the court interested in the costs, be ruled to give security: and if he fail to comply with the rule on or before the first day of the next term the suit will be dismissed. An intervener may be re- quired to give security for costs; also a defendant who seeks a judgment on a counter-claim after the plaintiff has discontinued his suit. The state need not give security, and no further security is re- quired in any case where the costs are secured by an attachment or other bond. 4 When the oath of inability has been tiled, the clerk must indorse on process, "pauper oath tiled," and the officer is re- quired to serve such process the same as other process. 5 chapter IX. RS. 117T-117!. 144: Rules 70-89. R S. 1 ISO. As to holidays, see R S. 2939. RS. 14W-144G. *RS. 26 .INTRODUCTION. [ 12. 12. The citation, or notice to the defendant. Before a court is authorized to enter a judgment against a per- son, it must have jurisdiction both of the subject-matter of the suit and of the person. Jurisdiction over the subject-matter is given by law : it cannot be given by consent. 1 Jurisdiction of the person is obtained by service of process, acknowledgment of service, or by voluntary appearance, but any abuse of the privilege accorded by the statute of acceptance of service and waiver of process is care- fully guarded against by statute. 2 When the petition is filed the clerk must issue citation forthwith. Its style is, " The State of Texas;" the address is to the sheriff or any constable of the county in which the petition alleges the de- fendant to reside or be; its command is to summon the defendant to appear at the next term of court, stating the time and place of holding the same, to answer the plaintiff's petition. The writ is returnable on the first day of the next succeeding term. It must be dated, tested and signed by the clerk, with the seal of the court. The date of issuing the writ must be noted on it. The writ is placed in the hands of the proper officer, who must indorse on it the day and hour on which he received it. He must then proceed to obey its commands, by using all necessary diligence to find the defendant and execute it. It is executed by delivering to each defendant a true copy. If served without the county in which the suit is pending, the officer must deliver to each defend- ant, in person, a certified copy of the petition accompanying the citation. The writ cannot be executed on Sunday or on any legal holiday, but it may be executed at any time before the return day. The defendant will not, however, be required to appear at the re- turn term unless the writ has been served at least ten days before the return day, exclusive of the days of service and return. The officer, whether he has executed the writ or not, must return it on or before the return day. The return of the writ consists not only in bringing it back to the office of the clerk from which it issued, but also in showing, by the indorsement upon it, whether or not it has been executed. If it has been executed, the officer must indorse upon or attach to it his return, stating fully the time and manner of service, and sign it officially. If the defendant has not been found, or if, from any other cause serving as a legal excuse, the writ has not been served, the return must show the fact. If the writ is directed to the sheriff of a county other than that in which the suit is pending, he may return it by mail; and he has discharged his duty in that respect when he has placed it in the postoffice properly enveloped and addressed, with the postage paid. 3 i See 38, post; Burnley v. Cook, 13 T. 586; Campbell v. Wilson, 6 T. 379. 2RS. 1240-1242, 1349. 1 Underwood v. Russell, 4 T. 175. , 13.] 1 N TRODUCTK >N. 'J. ~ If the officer does not return the writ, if he simply brings it hack without tht- proper indorsement, he may,upon motion, be compelled to mak.- a due return. He may also be lined for his neglect of duty, and is liable t<> an action by the plaintiff for any damage he mav have sustained. If the defendant has not been served, and ylni-i-* writs may be issued to the same or any other county, ,e plaintitl' may direct, until service is obtained. When, from the nature of the case, personal service of the cita- tion cannot be made, service may be made by publication in the manner prescribed by the statute; 1 but this method of service will uthori/.e a personal judgment against a non-resident who does not appear in the case, even for costs. 2 . 3. Appearance; default. Appearance day is the second day of each term, in both the dis- trict and county courts; and where defendant has been served per- sonally, at least ten days before the first day of the term, exclusive of the days of service and return, he must file his answer on or be- fore the appearance day, and before the call of the appearance docket. 3 "Where service has been made by publication, the an must be filed on or before appearance day of the term next succeed- ing that to which the action is returnable; and where personal service is not made ten days before the first day of the return term, the defendant is not required to plead until the next succeeding term. 4 Upon appearance day the cases upon the appearance docket are called by the judge in the order in which they have been entered. If a defendant has failed to appear and answer, a final judgment by default will be rendered against him, and a short entry to that effect is made upon the judge's docket. "When there are several defendants, some of whom have an- swered and others have made default, an interlocutory judgment by d"fault may he entered against those who have not answered, and the cause may proceed against the others, but only one final judgment shall be given in the suit. If the cause of action is liquidated and proved by an instrument in writing, the damages will be assessed by the court or under its direction, and judgment final be rendered therefor, unless the de- fendant demand and is entitled to a trial by jury. If the cause of R S. 1212-124.-J. 1447. See the chapter on CITATI< >.v Pennoyer v. N, if, 95 U. a 728; York v. State, 73 T. 651; Kimmarle v. H. & T. G Ry. Co., 76 T. 686; St. L., A. & T. Ry. Co. v. WhitU-y, 77 T. 126; Taliaferro v. Butler, 77 T. 578; Hardy v. Beaty. 84 T. 562. See the chapter on CITATION BY PUBLICATION. R & 1263-1280. See chapter XXIII. < R S. 1229, 1264. 28 INTRODUCTION. [ 14. action is unliquidated or is not proved by an instrument in writing, the court will bear evidence as to the damages and render judgment therefor, unless the defendant demands and is entitled to a trial by jury. 1 g 14. Abatement and discontinuance. The death of a party to a suit before verdict will not cause it to abate when the cause of action survives; but upon the suggestion of such death upon the record, the representative of the deceased party may be made a party to the suit, or a scire facias may issue, requiring him to appear and prosecute or defend the suit, as the case may be. If a suggestion of the death is not made at the first term succeeding thereto, the clerk will issue a scire facias upon the petition of a party to the suit. If an executor, administrator or guardian dies, his successor can in the same manner be made a party. If the plaintiff is suing for the benefit of another and dies, the suit may proceed in the name of the beneficiary. If a female party marries, her husband may be made a party upon the suggestion of the marriage. If one of two or more plaintiffs or defendants dies, and the cause of action survives for or against the survivor, the suit may be per- mitted to abate as to the deceased party, or his representative may be made a party thereto. When either party dies between the ver- dict and judgment, the judgment will be entered as if both parties were living. When one or more of several defendants are served with process and others are not served, the plaintiff may discontinue as to those not served and proceed against the others, or he may continue his suit and take new process. When suit is dismissed as to a principal obligor no judgment can be rendered therein against an indorser, guarantor, surety or drawer of an accepted bill who is jointly sued,, unless it is alleged and proved that such principal obligor resides beyond the limits of the state or in such part of the same that he cannot be reached by the ordinary process of law, or that his resi- dence is unknown and cannot be ascertained by the use of reason- able diligence, or that he is dead, or actually or notoriously insolvent. The plaintiff may dismiss the suit in open court, or take a nonsuit at any time before the jury have retired from the bar, except when, by the pleadings, the defendant would be entitled to a judgment against the plaintiff other than for costs. He may dismiss his suit in vacation, when the defendant has not answered, upon paying to the clerk all costs that have accrued therein. 2 1R 8. 1280-1287. *R. S. 1246-1261. See chapter XIV. 15, 10.] nrpooi ' HN. 29 5. Change of venue. The venue or place of trial of a case may be changed, either by written consent of the parties tiled with the papers of the cant on the application of either party, by affidavit, supported by the affidavit <>f at least three credible persons, residents of the county where the suit is pending. The affidavit must state the statntory grounds. t state and show that the testimony is material and that the party has n>et I due diligence to procure it stating BOOB diligence and the cause of failure, if known and that the testimony cannot be obtained from any other source; if it be for the absence of a wit- it must state the name and residence of the witness, and what xprctt-d to prove by him, and that the continuance is not a for delay only, but that justice may be done. Applications for a continuance may be made upon other grounds, and are addressed to the sound discretion of the court, as are appli- i R S. 1270-1275. See chapter XV. 30 INTRODUCTION. [ 17. cations for a third or a subsequent continuance. The adverse party may admit the facts stated in the application for a second or sub- sequent continuance for the want of testimony, and the application Will be refused. The motion upon the first application is decided summarily and without argument; upon the second application argument will be heard. If the motion is granted, the cause is disposed of for the term ; if it is overruled, the decision of the court may be reserved for revision by a bill of exceptions. A case is con- tinued by operation of law : (1) Where the death or marriage of a party is suggested upon the record, and application is made for a 8ci.fa.' } (2) where the cause is not reached for want of time. 1 17. Preparation for trial; taking depositions and procuring the attendance of witnesses. The plaintiff immediately upon instituting suit, and the defend- ant as soon as he is served with process, should commence to pre* pare for trial. This preparation consists in procuring such evi- dence as he may think necessary to sustain his case. The evidence consists in the testimony of witnesses or in written documents. Depositions may be taken in all civil suits whether the witness re- sides in the county where the suit is brought or out of it ; but the failure to take the deposition of a male witness residing in the county is not a want of diligence, if the proper steps have been taken to secure his attendance. The party wishing to take the deposition must file interrogatories to the witness with the clerk of the court in which suit is pending,. Avith a notice that he will apply for a commission to take the an- swers of such witness. The opposite party, his agent or attorney, must be served with a copy of the interrogatories and notice, and may file cross-interrogatories to the Avitness. After due service of the notice, a commission may be sued out, directed to the proper officer, and requiring him to cause the Avitness to appear before him, and answer under oath the direct and cross-interrogatories an- nexed to the commission. The ansAvers of the Avitness must be re- duced to Avriting, be sworn to and subscribed by him, and certified to by the officer, under his hand and seal. The commission, interrogatories and answers must be sealed up in an envelope, Avith the name of the officer written across the seal ; and the names of the parties to the suit and the Avitnesses indorsed on the envelope. The package must be directed to the clerk of the court from Avhich the commission issued, and may be returned by mail or by private hand. If returned by mail, the postmaster must indorse on the package that he received it from the officer before whom the ansAvers were taken ; and the clerk of the court must in- i R. S. 1276-1279, 1288. See CONTINUANCE, post. 17.] INTRQDCCTl' 31 dorse thereon that he received it from the postoffice. If returned in any other way, the person delivering them into court must make affidavit, before the clerk, that he received them from, the hands of the officer le fore whom they were taken, that they have not been out of his possession since, and that they have undergone no alter- ation. The deposition should be tiled, and may be read, subject to all legal exceptions. AN' hen a deposition has been filed in the court at least one entire day before the day on which the case is called for trial, no objec- tion to the form thereof, or to the manner of taking the same, will be heard unless stated in writing and notice thereof given to the opposite counsel before the trial commences. The objection must be made and determined at the first term after the deposition is filed ; l and either party may require it to be placed on the motion d >cket and tried as other motions. If not tried sooner, it must be tried before either party is required to announce ready for trial.'-' A deposition may be read where the witness is present at the trial.* The deposition of a party to the suit may be taken, either on his own behalf or by the opposite party. When taken by the opposite party, notice of the filing of interrogatories is not required ; and an interrogatory which the party refuses to answer, or answers evasively, is taken as confessed. 4 The clerk, at the request of either party, is required to issue sub- poenas for witnesses who reside or are to be found within the county at the time of the trial. The subpoena is served by being read to the witness, or he may accept service by a written memorandum signed by him and attached to the subpoena. When a witness ha-; been duly summoned, he must attend from day to day and from term to term, until discharged by the court or the party summon- ing him. A witness will not be fined for non-attendance, nor will an attachment issue to compel his attendance, until it be shown, by the affidavit >f the party, his agent or attorney, that his lawful fees have been paid or tendered; 5 but whether a pay mentor tender must >\vn in order to show diligence on an application for a continu- is left uncertain by the cases. 6 ' R. S. 2273-229L 'Schmk-k v. Noel, 64 T. 406, 72 T. 1; O'Connor v. Andrews. $1 T. >; Hittson it Bank, 14 S. W. Rep. 780; Dillingham v. Hod;: W. Rep. 86. R. . .-us. R. ..'68. Tex. Transp. Co. v. Hyatt, 54 T. 213; H. & T. C. Ry. Co. v. \Vln-..1.-r. 1 App. C. G, 170; Blum 67 T. 194; Dillinghara v. Kills. -.,; 7 ,}?: TV\. A: Pac. Ry. Co. v. Hall, 83 T. 675; Doll v. Mundine, 26 S. W. Rep. 87; Bryce v. Jom-s. 38 T. 205. 32 INTRODUCTION. [ 18. t 18. Call for trial. ( 'ascs are called for trial in the order in which they stand on the docket to which they belong, unless otherwise ordered by the court. Those on the jury docket have the preference ; those on the docket of rases in which a jury has not been demanded are taken up and tried at such times and in such manner as not unnecessarily to inter- fere with the dispatch of business on the jury docket. By an order entered on the minutes the court designates the day of the term for t iking up the jury docket at all subsequent terms, until changed by a like order. 1 When a case is called for trial, the issues of law arising on the pleadings, and all pleas in abatement, and other dilatory pleas re- maining undisposed of, must be determined, and it is not a sufficient cause for a postponement of a trial of the issues of law that a party is not ready to try the issues of fact. 2 The rules of the district and county courts provide as follows : " All dilatory pleas, and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of parties with the consent of the court ; and all such pleas and motions shall be first called and disposed of before the main issue on the merits is tried, " All motions which go to the merits of the case, and all excep- tions, general and special, which relate to the substance or to tho form of the pleadings, shall be decided at the first term of the court when the case is called in the regular order for trial on the docket, if reached, whether there be an announcement on the facts or not, unless passed by an agreement of parties with the consent of the court. " When the case is called for trial, the exceptions, if any remain undisposed of, shall be presented for determination, and shall then be decided before proceeding to the trial of the case on the facts, and, if not presented, they shall be adjudged by the court to have been waived, and shall be so entered on the minutes of the court, the cost of filing to be taxed against the party filing them, and they shall constitute no part of the final record, unless some ques- tion be raised upon the action of the court in reference to them, and they are presented in a bill of exceptions." 3 The case may be tried before the court without a jury, or it may be submitted to the court on an agreed statement of facts, or either party may demand a jury. The rules for jury trials govern in trials by the court, so far as applicable. 4 1 R S. 1288-1290. See R S. 3199; also, chapter XXIV. 2 R S. 1291. 8 Rules 24-26. R S. 1292, 1293, 3187 et seq. 10,20.] nrrBODCcm 33 The defendant, if he does not intend to resist the suit, may ap- pear and confess judgment : or if he has pleaded, may withdraw liis ans\v-r, and let judgment go by /'-.? am R S. 3226-0231; Const, art V, 13. 3 34 INTRODUCTION. [ 21. direct. The party on whom rests the burden of proof on the whole case proceeds to state briefly to the jury the nature of his claim or defense, and introduces his evidence, and is followed by the adverse party and the intervener respectively. The parties are then con- fined to rebutting testimony. The rule reads as follows: "The plaintiff shall have the right to open and conclude, both in adduc- ing his evidence and in the argument, unless the burden of proof on the whole case under the pleadings rests upon the defendant, or unless the defendant, and all of the defendants, if there should be more than one, shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff has a good cause of action, as set forth in the petition, except so far as it may be de- feated, in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial; which ad- mission shall be entered of record, when the defendant, and the defendants, if more than one, shall have the right to open and con- clude in adducing the evidence and in the argument of the cause." * 21. The evidence. The rules and principles which govern in the introduction of evi- dence, and which relate to its admissibility, do not come within the scope of this work, except certain statutory rules on documentary evidence and the competency of witnesses, which are considered under the appropriate heads. The common law of England, as practiced at the time of its adoption by the act of December 20, 1836, in its application to evidence, is followed and practiced by the courts of this state, so far as it is not inconsistent with the laws of the state. 2 No person is incompetent as a witness on account of color, nor because he is a party to or interested in a suit, nor on account of his religious opinions or for want of religious belief. The husband or wife of one who is a party to or interested in a suit may testify, except as to confidential communications between husband and wife. 3 A very important provision, and one which has frequently come before the courts for construction and application, has refer- ence to the competency of parties in suits by or against executors, administrators and guardians. It reads as follows: "Inactions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any trans- action with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party ; and the provisions 1 R S. 1297; Rule 31. See chapter XXVIIL 1 R S. 2299. See chapters XXIX to XXXL R. S. 2300, 2301, 2303; Const., art. I, 5. 22-24.] INTRODUCTION. 35 of this article shall extend to and include all actions by or against the heirs or le^al representatives of a decedent arising out of any transaction with such decedent." l =; 22. Examination of witnesses. Hither party may, at the opening of the case, demand that the witnesses be put under "the rule," that is, that they shall be kept together, and apart from all other persons, by an officer, so that no one can hear the testimony of another. 2 If the rule is demanded, each party must have all of the witnesses he intends to introduce sworn at once and placed in charge of the officer. The witness is first examined by the party introducing him, cross-examined by the adverse party, and re-examined by the first party. And here the examination will generally close; but the court may, in its discre- tion, relax the rule when justice seems to demand it, and allow either of the parties to ask omitted or explanatory questions. The court may also allow a party to introduce a witness after the argu- ment has commenced, or recall him after he has retired from the stand, if the justice of the case requires it. 3 I f any question is asked by the party examining the witness which the adverse party supposes will elicit an illegal answer, the latter should object; a failure to object at the proper time is a waiver of exceptions to the admissibility of the evidence. If the objection is sustained or overruled, the party aggrieved by the ruling of the court should except thereto. 4 23. Argument of counsel. When the evidence is closed, the questions of fact and of law arising thereon are argued by the counsel, the party having the burden of proof being entitled to the opening and concluding argu- ment. If there are more than two counsel engaged upon a side, the order and number of speeches is subject to the direction of the court. 8 The supreme court has made a number of important rules <>n this subject. One which the courts are frequently called upon to enforce, and which they do not hesitate to enforce, requires that counsel shall "confine the argument strictly to the evidence and to the arguments of opposing counsel." Cases are very frequently re- versed for a violation of this rule. 8 24. Charging the jury. After the conclusion of the argument, the court proceeds to in- st met or " charge " the jury upon the law of the case. The charge i R. S. 2302. - Watts v. Holland, 56 T. 54; Willis v. Nichols, 3 Civ. App. 154 RS. iv tee g 518, port R. S. P.". i'. i. * Kul.'s :j4-41. The subject is fully discussed hi chapter XXXIV. 36 INTRODUCTION. [ 25, 26. must be in writing, and signed, and must be given in the precise language in which it is written. It must not charge or comment on the weight of evidence. It must be so framed as to submit questions of fact to the jury, deciding on and instructing them as to the law arising on the facts, distinctly separating questions of law tVuiu questions of fact. After the general charge of the court is given, either party may ask additional instructions. The charge asked by the party must be in writing, and the judge must give the instructions as asked, or refuse them ; but he may, however, if he chooses, give them with such qualification as he thinks proper. The charges given to the jury may be carried by them from the bar. 1 Charges asked and not given should not be read in the hearing of the jury, nor taken by the jury in their retirement. 2 The rulings of the court in giving, refusing or qualifying instructions are re- garded as excepted to in all cases. 3 Where a charge is erroneous or misleading, the party injured is not required to ask a special in- struction ; but where the charge is incomplete, but correct so far as it goes, the party will not be heard to complain in the appellate court unless he has asked a special instruction. 4 25. Nonsuit. Should the plaintiff, after hearing the charge of the court, be of opinion that he must fail upon some point which he can strengthen on another trial, in order that he may not be estopped by a verdict, he may, before the jury retires from the bar, take a nonsuit ; the taking of a nonsuit will not prejudice the right of the adverse party to be heard on his claim for affirmative relief. When the trial is by the judge, the nonsuit may be taken at any time before the de- cision is announced. 5 26. Deliberations of the jury; returning the verdict. The jury may return their verdict without leaving the bar, or they may retire in charge of an officer to consider the same; and in that event they cannot disperse, without the consent of parties, until they have agreed. If the jury disagree as to what was the law as given in charge or desire further instructions, they may re- turn into court, and the judge may give an additional charge. And so, if they disagree in their recollection of the evidence of a wit- ness, they may return into court and have him examined as to what he testified; but they cannot elicit any new fact. 6 When the jury 1 R S. 1300, 1316-1321 ; Rules 61, 62. See chapter XXXV. 2 Rule 62. 3 R S. 1863. Alexander v. Robertson, 86 T. 511; L & G. N. Ry. Co. v. Welch, 86 T. 203, and other cases. R S. 1301. 6 R S. 1304, 1307, 1308, 1309. 27, as.] IN 37 have airrved they must come into court and render their verdict. :it >f parties the verdict may he delivered to the clerk during the adjournment of court. The verdict may be general or special; a general verdict is a finding of the issue in favor of the plaintiff or defendant : a special verdict finds the facts of the case and to the court to determine the law. Should the jury fail to agree, by consent of parties a juror may be withdrawn and a mistrial haii, and the cause may be again tried at the same or a tjuent term. The jury may be discharged by the court when their efforts to agree have been so protracted as to render it obvious that it must eventuate in a mistrial, or when the court is about to adjourn. Whatever verdict is rendered, or whatever else may lie ie in the case, must be entered on the minutes of the court. 1 '7. New trial and arrest of judgment. If either party is not satish'ed with the verdict of the jury, he may, within two days after it is rendered, and before the adjourn- of the court, move for a new trial or in arrest of judgment. The motion must be in writing, and must distinctly specify the grounds upon which it is founded. If the motion for a new trial inted, the cause is to be tried anew at the next term of the court; if the motion in arrest of judgment is granted, a repleader may be awarded and the cause proceeded with as before. The mo- tion must be determined at the term of the court at which it is made. Not more than two new trials will be granted to a partv, t when the jury have been guilty of some misconduct, or have erred in matter of law. AVhere the service is by publication, and the defendant does not appear, either in person or by an attorney of his own selection, a new trial may be granted on affidavit filed at any time within two years from the rendition of the judgment. 2 28. Appeals and writs of error. If the motion for new trial is overruled, the party aggrieved may appeal from the judgment. Notice of the appeal must be given in open court, and is entered of record, and the appeal is perfected by the appellant giving an appeal bond within the time prescribed by the statute. 1 Executors and administrators may appeal without bond. Notice of appeal must be given, and the assignments of error must be filed before the transcript is taken from the clerk's otlice. When notice of appeal is given, either party may make out a statement of the facts proved upon the trial, which must be pre- i R. S. 1322-1334. * R. S. 1370-1378. R. a 1337; Converse v. Trapp, 29 S. W. Rep. 415. I r>or. 38 INTRODUCTION. [ 29. sented to the adverse party for his signature, and, if they agree, to the judge for his approval. If the parties cannot agree, each must make out a statement and submit it to the judge, who will make out a true statement of the facts. Instead of making out a state- ment of facts, which must be accompanied with a transcript of all of the proceedings had in the cause, the parties, with the consent and approval of the judge, may agree upon a statement of the case and the facts proved, without the necessity of copying the entire proceedings. If no notice of appeal has been given, or if the appeal was not perfected, the party may at any time within twelve months after the rendering of the judgment sue out a writ of error, which will have the same effect in removing a case for revision as an appeal, provided a statement of facts has been made out. A statement of facts is unnecessary when the party relies for a reversal upon some error of law arising upon the pleadings. 1 29. Trial in courts of civil appeals. The trial of causes in the courts of civil appeals is on a statement of facts, or an agreed statement of the pleadings and proof, or the conclusions of law and fact certified to by the judge of the trial court. When the parties fail to agree the judge must certify the facts. The trial on appeal may also be on a bill of exceptions to the opinion of the judge, or on a special verdict, or on an error in law, either assigned or apparent on the face of the record. The court of civil appeals must admit as a part of the record, to be examined by the judges, a bill of exceptions not signed by the judge trying the cause below, upon its appearing to the satisfaction of the court that the facts are fairly stated therein ; that said bill was prepared in accordance with the law governing the preparation of such bills, and that the judge trying the cause refused to sign the same. The truth of such bill of exceptions will be determined by the court on the copies of the affidavits required by law to be made in such cases, contained in and forming a part of the record transmitted to the court of civil appeals. Causes are heard and determined in the courts of civil appeals upon a transcript of the record of the proceedings had in the trial court, and an assignment of errors distinctly specifying the grounds on which the appellant or plaintiff in error relies. The appellant or plaintiff in error must prepare his case for sub- mission by filing a brief of the points relied on in his specifications of error, and to such fundamental errors as are apparent upon the record. As an introduction he should make a general and succinct 1 R S. 1393 et seq. 29.] 39 statement of the nature and result of the suit, followed by a state- ment of all the material and pertinent fa ; ying those upon. which there is conflict in the evidence, and giving the substance of Silence relating thereto. This statement will be accepted by tift as true. nn!e tin- adverse party shall object thereto and jMint nit wherein the statement is incorrect, in which case the court will examine the record to ascertain the I; Kach point under which an assignment is relied upon must be I as a proposition, unless the a>siirnment itself is in the shape proposition to be maintained, and is copied in the brief. Under proposition there must be a brief statement of such proceed- in the record as are necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon such proposi- tion, upon the professional responsibility of the counsel who makes it. and without intermixing with it arguments, reasons, conclusions or inferences. An argument bearing only on the propositions sub- mitted may follow each statement, but it is not necessary or proper ;>eat in such statement what has already been presented in the .ire n era I preliminary statement heretofore mentioned. In such case it will be sufficient to refer to such general preliminary statement by the pair's of the brief on which the particular matter is found, iirief must be signed by the party or his counsel. A copy of the brief must be filed and deposited with the papers of the cause in the trial court at least five days before the time of filing of the transcript in the court of civil appeals, of which notice must be given by the clerk of the court to the appellee or defendant in error or his attorney of record. In twenty days after such notice the ap- pellee or defendant in error must file a copy of his brief with the clerk of the court below, and with the clerk of the court of civil appeals four copies. < >n or before the day fixed for the hearing of the cause and be- fore the opening of the court, four copies of the brief of each of the parties required to be filed in the office of the clerk of the trial court must be filed with the papers of the cause in'the office of the clerk of the court of civil appeals. A court of civil appeals may reverse the judgment of the court below and proceed to render such judgment as should have been rendered. When it is necessary that some matter of fact should be T ained or damages should be !, or the matter to be de- i is uncertain, the cause should be remanded for new trial in >.urt below. When a rau>e is decided in a court of civil appeals, a conclusion of the facts and law of : inu^t lie tiled in the cau>e within 40 INTRODUCTION. [ 30. thirty days after the decision. It is not necessary to file a conclu- sion of facts in causes in which no writ of error will lie to the su- preme court ; but when a cause is reversed, the court must file the reason therefor. The statute provides that " whenever in any case pending before a court of civil appeals there should arise an issue of law which said court should deem it advisable to present to the supreme court for adjudication, it shall be the duty of the presiding judge of said court to certify the very question to be decided to the supreme court, and during the pendency of the decision by the supreme court the cause in which the issue is raised shall be retained for final ad- judication in accordance with the decision of the supreme court upon the issue submitted." When any judge dissents as to any conclusion of law material to the decision of the case in which h'e sits, he shall enter the grounds of his dissent of record, and the court will, upon motion of a party, or on its own motion, certify the point of dissent to the supreme court. The certificate of dissent must be accompanied by certified copies of the judgment of the court below and of the conclusions of fact and law as found by the court, and the questions of law upon which there is a division, and also the original transcript, if so or- dered by the supreme court. The case will be set down for argu- ment in the supreme court (if so directed by the court), and the attorneys of the parties notified. After the question is decided, the supreme court must immediately notify the court of civil ap- peals of their decision and it will be entered as the judgment of the court. 1 30. Error to a court of civil appeals. On receipt of the application for a writ of error to a court of civil appeals, the clerk of the supreme court will file the same and the accompanying transcript, and enter the case upon the applica- tion docket. The cases will be heard in the order in which they are numbered on the docket. On a refusal of a writ by the court the clerk will transmit to the clerk of the court of civil appeals to which the writ is applied for, a certified copy of the order of the court denying the application, and must return all the file papers of that court to its clerk, but not the petition for the writ. Jf the application is granted, the clerk will issue a writ of error to the judges of the court, the judgment of which is sought to be revised, advising them that the writ of error has been granted. The clerk will also issue a citation in error to the defendant in error, or his attorney of record, notifying him that the writ has been granted, and to appear and defend. If a bond is required, the writ will be 1 R S. 1014 el neq. And see Rules for the Courts of Civil Appeals. 31.] KODUCTIo.V. 41 issued on receipt of the duly certified copy of the bond required by the statute, unless further time he allowed by special order of the court in tin 1 particular case. The certified copy of the bond must be tiled within ten days from the granting of the application, and if no bond is so filed, the application will be dismissed by the court of A ii motion. Upon service of citation, thecase will be put upon the trial doc A COM ^tands for submission on the first regular day for the sub- on of causes, coming after the expiration of twenty days from the day on which the writ of error was issued; provided the cita- tion in error has been served ten days before such submission da} r . If not so served, then the case is subject to submission the first regular submission day which falls ten days after service of the citation. AVhen a cause or suit is taken to the supreme court by writ of error, the brief and arguments filed in the court of civil appeals must be submitted to the supreme court, and, in addition thereto,, the attorney for either party may file additional briefs under such rules and regulations as may be prescribed by the supreme court. The judgment or decree of the supreme court in decided cases must be pronounced in open court. The opinion of the court must be reduced to writing in those cases which the court in its discre- tion may deem of sufficient importance to be reported. The judgments of the supreme court become final at the expira- tion of fifteen days, when no motion for rehearing has been tiled,, and the mandate thereon may be issued to the court in which the original judgment was rendered. If the mandate for any cause has been revoked, the clerk of the supreme court will at once notify the party to whom the mandate was delivered, and the clerk of the court to which it was directed, to return it at once. A rehearing may be graqted by the court, upon motion in writing therefor, filed within fifteen days after the date of entry of the judgment or de- cision of the court. Should the court adjourn within less time than :; d.iys after the rendition of the judgment, it may make such rules and regulations in reference to the filing of the motion as it may deem best for the promotion of the interest of all the parties concerned. Notice of an application for a rehearing may be served upon. one of several parties or their attorneys, and the motion for a rehearing may be heard and determined after live days from the return of the precept served. 1 81. Judgment liens. judgment of any court of this state, or of the United States rendered in this state, an abstract of which is properly recorded 1 See R S. 967 et seq.; also Rules for the Supreme Court. 42 INTRODUCTION. [ 32. and indexed, as required by the statute relating to judgment liens, operates as a lien upon the real estate of the defendant situated in the county where such record and index are made, and upon all real estate situated in such county which the defendant may there- after acquire. The lien so acquired continues for ten years from the date of such record and index, unless the plaintiff shall fail to him 4 execution upon his judgment within twelve months after the rendition thereof, in which case the lien ceases to exist. The satis- faction of the judgment, in part or in whole, may be shown by the return or a certified copy of the return on an execution, or by a re- ceipt, acknowledgment or release signed by the party entitled to the payment, his agent or attorney of record, duly acknowledged or proven for record. It is the duty *of the clerk to enter such credits and satisfaction whenever made to appear. 1 32. Execution. The judgment of a court of record may be enforced by execution. If no appeal is taken or writ of error sued out, the clerk, after the rising of the court, must tax the costs and issue an execution in ac- cordance with the judgment. If the judgment is affirmed, or re- versed and rendered by the appellate court, execution is in the same manner issued upon the receipt of its mandate. The execution is placed in the hands of the proper officer, by whom it must be exe- cuted in accordance with its commands, or some legal reason shown why it is not done, and be returned within the time specified in the writ. Should the execution be returned not satisfied, other execu- tions may be issued from time to time to the counties in which the defendant in the execution has property, until the judgment is satisfied. Execution must be issued within twelve months after the rendi- tion of the judgment. If not so issued, no execution can issue until such judgment is revived. If the first execution has issued within the time mentioned, the judgment does not become dormant unless ten years have elapsed between the issuance of executions thereon, and execution may be issued at any time within ten years after the issuance of the preceding execution. On the death of a plaintiff in the judgment, or one of several plaintiffs, execution may issue in the name of the legal representa- tive of the deceased sole plaintiff, or in the name of the surviving plaintiffs and the legal representative of the deceased plaintiff, as the case may require, upon an affidavit of such death filed with the clerk, together with a legal certificate of the appointment of such representative. The statute also prescribes the rules governing the issuance of an execution on the death of an executor, of a nominal R. S. 3283-3293. 33.] INTRODUCTION. 43 plaintiff, or erf the defendant when the judgment against him is for money or for property. The manner of executing the writ and of the return thereof is fully defined by the statute and must be strictly observed.? i. How to conduct a lawsuit. A general view of the practice in civil cases is given in the pre- ceding pa^-vs. and its details are fully stated in the chapters relating t< the several proceedings. To those who have not heretofore been engaged in active practice in this state, a brief statement of what is to be done in the progress of a lawsuit from its commencement to inclusion may be of some service. The preparation of the petition is the first and most important net in behalf of the plaintiff. For this purpose a knowledge of all the facts upon which the controversy is based, and constituting the cause of action and the grounds of defense, so far as the same can !> Ascertained, is essential. A memorandum of the name and resi- dence of each witness who will be called on the trial, and the facts within his knowledge, should be made to enable the pleader to state in legal form the cause of action, and to anticipate as far as possible the grounds which may be relied upon as a defense thereto. The petition must be folded and the names of the parties indorsed thereon; it is then to be delivered to the clerk of the court in which suit is instituted, who will file it, with an indorsement of the date of filing, and enter the suit on his file docket. Before issuing process the clerk may require security for costs, which it is the duty of the plaintiff to give, or in its place file with the clerk an affidavit that he is too poor to pay the costs of court, and is unable to give secu- rity therefor. The clerk may contest the inability of the party to give security, but must file the petition and enter the same on the docket. The judge may, at the next term of the court, require se- curity to be given. Security for costs cannot be required of execu- tors, administrators or guardians appointed by the courts of this state. Contemporaneously with the institution of suit the plaintiff must make preparation for trial. Witnesses \vhose personal attendance is HMjiiireil must be subpoenaed. Interrogatories, with notice of in- tention to apply for a commission to take the testimony of witnesses whose personal at tendance cannot be compelled, should I>H tiled and served upon the adverse party. The defendant when served with process should use the same diligence in preparation for trial. It is the duty of each party to see that all process issued on his application has been properly executed and returned. Mistakes and informalities in returns may be corrected by the officer at any 1 R. S., title 41. p. 463. 4A INTRODUCTION. [ 33. time under the direction of the court; but when such corrections of defective service cannot be made, alias process should be promptly issued. If, pending suit, a party plaintiff dies, his executor or adminis- trator, or, in some cases, his heirs, may be made parties plaintiff. If no suggestion of such death is made at the first term of the court thereafter, the defendant may cause the executor, administrator or heir to be cited, and, on his failure to appear, the defendant may by motion have the suit discontinued. On the death of a defendant to a suit, his executor, administrator or heir may be made a party. When the defendant has been per- sonally served with process, at least ten days before the return day, exclusive of the days of service and return, the answer must be filed on or before the second day of the appearance term, and before the call of the appearance docket on that day. All suits when filed are entered upon the file docket. Upon ap- plication of either party to a suit made on the first day of the term at which the suit is to be tried, and the deposit of the jury fee, or affidavit be made of inability to make such deposit, the suit will be entered on the jury docket. When a cause is called for trial by a jury, the array of jurors may be challenged for " cause " specified in the statute, and in the manner prescribed. If the challenge is sustained other jurors must be summoned. Individual jurors may be challenged for cause, or peremptorily without assigning cause. Peremptory challenges can- not exceed six by each party in the district court and three in the county court. The names of the jurors constituting the array, after the vacancies caused by challenges have been filled, are drawn, and a jury is impaneled and sworn. The order of trial is prescribed by the statute. The pleadings of each party having been read, the party having the burden of proof is permitted to state briefly the nature of his claim or de- fense and the facts in support thereof and introduce his evidence. The adverse party and the intervener are permitted to do the same. The parties are then confined to rebutting evidence. Omissions in testimony may be supplied on such terms as the court may direct. The case may then be submitted to the jury under the charges and instructions of the court. Additional instructions may be asked by either party, and should be asked when any part of the charge given by the court is deemed erroneous, or fails to fully present the law of the case. The charges given to the jury may be car- ried with them in their retirement, together with the pleadings and any written evidence, except the depositions of witnesses. When a part only of a paper has been read in evidence, it must be detached from that which is excluded. 33.] The verdict of the jury must be in writing and signed l.y the foreman. If a juror dies or is disabled from sitting, the verdict must In- signed by all of the remaining jurors. If the verdict is informal >r drlVctive it may be reformed at the bar under the di- n of the court. judgment of the court must conform to the pleadings, the nature of tin- cast- proved, and the verdict. A r> ii<>H',t>i r of a part of a verdict or judgment may be made in open court or in ti<>n by a release in writing. An appeal or writ of error maybe taken to the courts of civil tls from final judgments of the district court in civil cases, from final judgments of the county court in civil cases of which the county court lias original jurisdiction, and .from final judgments of the county court in civil cases of which the court has appellate jurisdiction, when the judgment or amount in controversy ex- - $100, exclusive of interest and costs. An appeal may be taken from an interlocutory order of the dis- trict court appointing a receiver or trustee in a cause, within twenty days from the entry of the order. In other cases an appeal may be taken during the term of the court at which the final judgment is rendered, notice of which must be given in open court within two days after judgment overruling a motion for new trial. An appeal must be perfected within twenty days after the expiration of the term, by giving bond, or affidavit in lieu thereof. If the term of the court may continue more than eight weeks, the appeal must be perfected within twenty days after notice is given, or within thirty days if the appellant resides out of the county. An appeal by the state of Texas, or by an executor, administrator or guardian appointed by the courts of this state, is perfected by the notice of appeal gi\vn in open court as above stated. A writ of error may be sued out within twelve months after the final judgment is ren- d'-red. Where a statement of the facts in evidence in the trial court is necessary for the determination of a cause on appeal or error, it must be prepared, signed, approved and filed during the term at which the trial was had. The court, by an ordei entered of record, may authorize the statement of facts to be made up, signed and filed within ten days after the adjournment of the term. The writs of attachment, garnishment, injunction, and seques- tration, and the practice in other special proceedings, such as ;iss to try title, trial of right of proper i \ ill be fully discussed in the following pages. The general rules of practice apply in those proceedings, unless otherwise provided; the practice, however, is largely statut CHAPTER II. OF COURTS AND JUDGES. 34. Judicial power, how vested. 85. Judicial districts. 86. County courts. 87. Courts to be held at county seat. 38. Judges disqualified, when; pro- cedure. 89. Judges of courts of civil appeals disqualified. 40. Judges of district and county courts disqualified. 41. Appointment of a special judge where the district or special judge is disqualified, or the former is absent or unable to act. 42. Election of a special district judge. 43. Exchange of districts by district judges. 44 Procedure where county judge is disqualified. 45. Disqualification of judge by in- terest. 46. Disqualification of judge by rela- tionship. 47. Disqualification of judge where he has acted of counsel. 48. How disqualification of judge de- termined. 49. Acts of disqualified judge. 50. Special judges; their qualifica- tions. 51. Powers of special judge. 52. Adjournment of term where the judge fails to appear. 53. Terms of the district court. % 54 Special terms of the district court. 55. Terms of the county court. 56. Powers of district courts and judges. 57. Powers of the county court and the judges thereof. 58. Judicial discretion. 59. Proceedings in vacation. 60. Contempt of court. 61. Proceedings in contempt cases. 62. Writs and process. 63. Seals of district and county courts. 64 Minutes of court. 34. Judicial power, how vested. The judicial power of the state is vested in one supreme court, in courts of civil appeals, in a court of criminal appeals, in district courts, in county courts, in commissioners' courts, in. courts of jus- tices of the peace, and in such other courts as may be provided by law. The legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto. 1 All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law. 2 The powers of the gov- ernment of the state are divided into three distinct departments, 1 Const, art. V, 1. 2 Const, art I, la 35, 36.] COURTS AND JUDGES. 47 legislative, executive, and judicial, and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in instances ex- v permitted by the organic law. 1 5. Judicial districts. The power to divide the state into judicial districts is vested in the legislature, and the number of such districts may be increased or diminished by law. 2 The legislature may increase or diminish the number of judicial districts and prescribe what territory may be embraced in a given district. In the absence of a constitutional prohibition, the legislature has the power to create a judicial dis- trict out of territory however small, when in its judgment the pub- lic interest requires it. It may divide a county into two judicial districts, and it is held that such power existed notwithstanding the provision of the constitution of 1876 that the terms of the dis- trict court should be held at one place in each county. 8 36. County courts. The constitution provides that there shall be established in each county in this state a county court, which shall be a court of record. 4 The county court is a court of record and of general jurisdiction in its appropriate sphere, under the constitution and laws. Its judg- ments, on collateral attack, are entitled to all the absolute presump- tions that obtain in favor of the judgments of other domestic courts of general jurisdiction. Where the case is within the jurisdiction of the court, and no fact appears affirmatively in the record suffi- cient to defeat the jurisdiction, evidence aliunde, even where the judgment is silent as to the process or its service, will not be heard to contradict the presumption of regularity, or to establish a fact outside of the record, for the purpose of showing that jurisdiction ih- prrson did not in fact attach, and thus impeach the judg- ment. If the judgment itself finds and recites a valid notice or cita- tion and service, that controls the rest of the record ; otherwise if it recites an invalid citation, or names the precise character thereof. If the judgment is silent, then the whole process in the record may be examined. This is as far as the courts can go when the pro- ng is collateral. 5 i Const, art. II. ?' 1. * Const, art. V Lytle v. Ualff, 75 T. 128 (12 S. W. Rep. CIO). The amendment of 1891 pro- that the terms of the district court shall be held at the county seat. ArtV Const, art V. $5 1.1. Martin v. Hums s<) T. 676 (16 S. W. Rep. 1072); Guilford v. Love, 49 T. 71V Murchixm v. \Vliit.-. ~>l T. 85; Treadway v. Eastburn, 57 T. 209: F..\\ I,T v. Sim|v- son, 79 T. 611 (15 S. W. Rep. 682); Wilkinson v. Schoonmaker, 77 T. 61'. i 1 >. \\ . Rep. 228). 48 COURTS AND JUDGES. [ 37, 38. 37. Courts to be held at county seat. All terms of the district and county courts must be held at the count v scat. 1 The commissioners' court may, when necessary, pro- vide buildings, rooms or apartments at the county seats, other than the court-house, for holding the sessions of the county courts. 2 The act of 1889, which divided Dallas county into two judicial districts and made the dividing line to pass through the center of the court-house, contemplated that the courts of said districts should be held in the one court-house of Dallas county. After the de- struction of the court-house which existed when the law was enacted, the county commissioners' court rented for court-house purposes a building which was located entirely within the territorial limits of one of the districts, and it was held that sessions of the district courts of both districts could be legally held in such rented build- ing. 8 On the last day of the term, and while a special judge was en- gaged in the court room trying a cause in which the district judge was disqualified, the district judge in another room heard and granted a motion for a new trial. At the next term a motion was made to vacate the order on the ground that the act of the judge in another room from that designated by the county court as the court room was not the act of the court, and for the further reason that counsel opposed to the motion were engaged, one as the spe- cial judge and the other as counsel in the case. It was held by the supreme court that the district judge could act in any room in the court-house he might select. 4 38. Judges disqualified. The constitution provides as follows: No judge shall sit in any case wherein he may be interested, or when either of the parties may be connected with him either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. When the supreme court, the court of civil appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the governor of the state, who shall immedi- ately commission the requisite number of persons learned in the law, for the trial and determination of such cause or causes. When a judge of the district court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or, upon their failing to do so, a competent person may be appointed to try the same in the count}^ where it is pending, in 1 R. S. 818; Const, art. V, 7. 2 R. S. 1548. 3 Wheeler v. Wheeler, 76 T. 489 (13 S. W. Rep. 305). < Niagara Ins. Co. v. Lee, 73 T. 641 (11 S. W. Rep. 1024). 39.] COURTS A.ND JCDOES. 49 such manner as may 1< :-ibed by law. And the district j', may <>.\'l:an<:e districts or hold courts for each other when deem it expedient, and shall do so when requiivd ly law. The disqualification of judges of inferior tribunals shall be remedied, and vacancies in their offices filled, as may be prescribed by law. 1 Th- statute provides that a judge of the supreme court or court of civil appeals shall not sit in any cause u wherein he may be in- in the question to be determined, or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been of counsel in the cause." 2 The same provision is made with respect to district and county judges, but as respects interest the provision is that they shall not sit in any cause wherein they may be interested. 3 A waiver by the parties to a suit of an exception to the judge who is disqualified to sit on account of interest cannot give jurisdic- tion, or capacitate a person legally incompetent to sit in the case; and a judgment thus rendered, though by confession, is void. The consent of parties cannot remove his incapacity, or restore his com- petency, against the prohibition of the law, which was designed not merely for the protection of a party to the suit, but for the gen- eral interests of justice. 4 At the common law as it prevailed in England, and was adopted by the people of the United States, there could be no challenge or recusation of a judge on the ground that he had been of counsel.* S 39. Judges of courts of civil appeals disqualified. The constitution provides that any two justices of the supreme court shall constitute a quorum, but makes no provision as to the courts of civil appeals.' The statute of 1892 provides that "a ma- jority of the judges of the several courts of civil appeals shall con- stitute a quorum for the transaction of business." 7 It will be no- ticed that the constitution provides for the appointment of a judge where any member of the supreme court or court of civil appeals is disqualified," while the provision of the statute is that special judges are to be commissioned when two members of either court are dis- qualified. 9 With the law in this condition, the supreme court holds Const, art V, 11; R & 969, 102L 'R&969, 1021. R& 1068, 1120. Chambers v. Hodges, 23 T, 101 The Richmond, 9 Fed. Rep. 863, 11 Myer's Fed. Dec^ fx 18, 8, citing Coke, Litt 294; 2 Bro. Civ. & Adm. Law, 369; 3 BL Com. 361; Lyon v. State Bank, 1 Stewart, 442. Const., art V, < 2 6; R S, 033. R S. 995. 8 Const, art V, 11. See 3 tiyiro, R 8,969, 10. '1. 4 50 COUKTS AND JUDGES. [ 40, 41. that, where one member of a court of civil appeals is disqualified, the other two judges may determine the case; that the fact of dis- qualification need not be certified to the governor. 1 The appoint- ment of a special judge in such a case, however, will not render the judgment void.- Suit was brought by a tax-payer to enjoin the collection of a city tax, to prevent a further issue of city bonds, and to cancel bonds already issued. A judge of the court of civil appeals was a property holder in the city. Such case coming to said court of civil appeals, the judge was interested therein, and so was disqualified. Whether section 11 of article V of the constitution was intended fully to define every ground of disqualification of a judge, and to take from the legislature all power to prescribe additional grounds, is noticed in this case but not decided. 3 A judge of a court of civil appeals may sit in a case which was tried before him as district judge. 4 Where a judge of a court of civil appeals does not sit in the determination of a cause, the action of the other two members in disposing of the case is valid, and the question involving his disqualification under the constitution does not give the supreme court jurisdiction by writ of error. 5 40. Judges of district and county courts disqualified. Kb judge of the district or county court is permitted to sit in any cause wherein he may be interested, or where he shall have been of counsel, or where either of the parties may be connected with him by affinity or consanguinity within the third degree. 6 41. Appointment of a special judge where the district or special judge is disqualified, or the former is absent or unable to act. Whenever any case or cases are called or pending in which the district judge or the special judge chosen is disqualified from trying the same, no change of venue is made necessary thereby ; but the parties or their counsel have the right to select and agree upon an attorney of the court for the trial thereof. If no selection is made when or before the case is called for trial, or if the trial of the case is pending, and the district judge becomes unable to act, or is ab- sent, and a special judge is selected who is disqualified, and the par- ties fail to select a special judge at once who is qualified, then the district judge, or the special judge presiding, must certify the fact of Austin v. Nalle, 85 T. 520 (22 S. W. Rep. 668, 960); Holt v. Maverick, 86 T. 457 (25 S. W. Rep. 607); Gwin v. O'Daniel, 22 S. W. Rep. 876. 2 W. U. Tel. Co. v. McLeod, 24 S. W. Rep. 815. City of Austin v. Nalle, 85 T. 520 (22 S. W. Rep. 668, 960). . M immediately t<> the governor, by mail, telegram, or otherwise, where- upon the i:<>vernor is required to appoint a special judge not so dis- qualified to try the case. The evidence of the appointment may In- traiiMnitted ly telegram or otherwise. The person appointed must qnalil'y, ami proceed to try the case when called or reached. 1 Whenever a special judge is agreed upon by the parties, or is ap- pointed by the governor for the trial of any particular cause as above provided, the clerk must enter in the minutes of the court, [art of the proceedings in such cause, a record, showing: 1. That the judge of the court was disqualified to try the cause; and 2. That such special judge [naming him] was, by consent, agreed upon by the parties to try the cause; or 3. That the parties having failed to agree upon a proper person to try the cause, and the judge of the court having certified that fact to the governor, he had appointed such special judge [;///ai y if the parties fail to agree upon some one to act as special judge. 7 The 1 R S. 1069. The same provision is made for the appointment of a special county judge. R. S. 1132. R. S. 1070. R & 1132o. * ( irigsby v. Bowles, 79 T. 138 (15 S. W. Rep. 30). .ulu v. L-m|..-rt. "> T. 273: Hrinkl.-y v. Harkins, 48 T. 225; Hessv. Dean, 06 T. 063 (2 S. \V. K,. P . 7 ITTfa v. Mus-nivr. 7'J T. is ,'.) S. \V. Rep. 90). : s-hu!t/,-,' v. BfcLeai . 11 >. \v. K. . . 52 COURTS AXD JUDGES. [ 42. action of the parties in trying a case without objection before a special judge is in itself an agreement by them to submit the case to him as special judge, and objections as to the propriety and effi- cacy of his appointment cannot thereafter be made. 1 Where the record of a judgment recites its rendition by a special judge " se- lected by plaintiff," the judgment is void. 2 Until the contingency happens authorizing the appointment of a special judge by the par- ties, the appointment of one is void. 3 Where parties to a suit announce ready and proceed to trial and judgment before a special judge, they cannot afterwards impeach the judgment collaterally on the ground that they did not consent to the appointment of the special judge. Where a district judge is disqualified on account of being related to one of the parties to a cause before him, and a special judge is appointed, the subsequent death of the party whose presence caused the disqualification, and a discontinuance entered as to him, does not work a disqualification of the special judge; especially where no objection was made by any party to the cause. 4 42. Election of a special district judge. Whenever on the day appointed for a term of the district court, or at any time before the expiration of the term, or the completion of all the business of the court, the judge thereof shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no failure of the term, and no failure to proceed with the busi- ness of the court; but the practicing lawyers of the court present thereat may proceed to elect from among their number a special judge, who will proceed to hold the court and conduct the business thereof; he has all the power and authority of the judge of the court, during such continued absence or inability, and until the com- pletion of any business begun before him. Such election is by ballot, and each practicing lawyer in attendance is entitled to participate, and has one vote ; a majority of the votes of all the practicing lawyers present and participating is necessary to the election of such special judge. The mode of conducting such election is as follows: The sheriff or constable makes proclamation at the court-house door that the election of a special judge of the court is about to be made by the practicing lawyers present thereat ; the clerk then makes a roll or list of all the practicing lawyers pres- ent ; and such lawyers then proceed to organize and hold the elec- i Tex. Cent Ry. Co. v. Rowland, 3 Cir. App. 158 (22 S. W. Rep. 134). *Latimer v. Logwood, 27 S. W. Rep. 960; Mitchell v. Adams, 1 U. C, 117; Cas- tles v. Burney, 34 T. 470. 'Davis v. State, 44 T. 523. Hall v. Jankoksky, 29 S. W. Rep. 515, 43.] I:T> AND JITKJES. 83 tion. Should the sheriff or constable and clerk, or cither of them, fail or refuse to act, the practicing lawyers may nevertheless |n-u o organ i/.e themselves into an electoral body, and appoint a sin-rill 1 and clerk /'/< t>m. to perform the duties of such otlicers respectively. It is the duty of the clerk to enter upon the minutes of the court r that an election was about to take place. 3. The number of ballots polled at the election and the number polled for eaeh person, and the result of the election. 1. That the oath prescribed by law had been duly administered to the special judge. The record of the proceedings, showing a substantial compliance with the requirements of the law in that behalf, is conclusive evi- dence of the election and qualification of such special judge. Like elections may be held from time to time during the term of the court to supply the absence, failure or inability of the judge, or of any special judge, to perform the duties of the office. 1 Tho law also provides for an adjournment of the court until the next regular term, where the judge does not appear and no special judge is elected. 2 43. Exchange of districts. Tho district judges may exchange districts or hold courts for each other when they may deem it expedient, and shall do so when required by law. 3 The statute provides that any judge of the dis- trict court may hold court for or Avith any other district judge, and the judges of the several district courts may exchange dis- tricts whenever they may deem it expedient to do so. 4 Where one judge sits for another, the latter, on taking his - can, before the close of the term, complete any matters which the former left unfinished.* And where several judges preside in suc- >n at the same term, all the proceedings, criminal as well as civil, remain subject to the order nf tin- jinfy,- jn-> ai:. State v. Woiiuu-k, 17 T 54 COURTS AND JUDGES. [ 44. hold courts for other district judges exists during the entire term of office of the district judge ; it is not confined to the period of the terms of court in his district. 1 g 44. Procedure where a county judge is disqualified. When a judge of the county court is disqualified, the parties may, by consent, appoint a proper person to try the case. Where a case is pending, and the parties fail at the first term of the court to agree upon a special judge, it is made the duty of the judge to cer- tify to the governor that he is disqualified to try the case, and the failure of the parties to agree upon a proper person to try the same, whereupon the governor must appoint some person, learned in the law, to try such case. 2 AVhenever any case or cases are called, or pending, in which the county judge, or the special judge chosen, shall be a party, or has an interest, or has been attorney or of counsel, or is otherwise dis- qualified from sitting in and trying the same, no transfer or removal is necessary, but the parties or their counsel have the right to select and agree upon an attorney of the court for the trial thereof; and if the parties or their attorneys fail to select or agree upon an attor- ney at or before the time the case is called for trial, or if the trial of the case is pending, and the county judge becomes unable to act, or is absent, and a special judge is selected who is disqualified to proceed with the trial, and the parties fail to select or agree upon a special judge who is qualified at once, it is the duty of the county judge or special judge presiding to certify the fact to the governor immedi- ately, by telegram, mail, or otherwise, whereupon the governor must appoint a special judge not so disqualified. The evidence of such appointment may be transmitted by telegram or otherwise. The special judge, after taking the oath of office prescribed by the constitution, must proceed to the trial or disposition of the case im- mediately, if the trial is pending, otherwise when called or reached, as in other cases. 3 A record of the proceeding must be made by the clerk, as directed in section 41, supra, when a special district judge is appointed. 4 1 Gilleland v. State, 44 T. 356. 2 Const, art. V, 16; R S. 1130, 1131. It seems that the constitutional provis- ion needed no legislation to give it effect. Parker County v. Jackson, 5 Civ. App. 36. Before the amendment of the constitution in 1891, cases in which a county judge was disqualified were transferred to the district court of the Nime county. The following cases relate to practice in case of a transfer: Bates v. Casey, 61 T. 592: Kahanek v. G., H. & S. A. Ry. Co., 72 T. 476 (10 S. W. Rep. 570); Poole v. Mueller Bros. Furniture Co., 80 T. 189 (15 S. W. Rep. 1055); Franco-Texan Land Co. v. Howe, 3 Civ. App. 315 (22 S. W. Rep. 766); G., C. & S. F. Ry. Co. v. Kerfoot, 3 App. C. C., 452; Baldwin v. McMillan, 1 App. C. C., 516; WMtting- ton v. Butler, 2 App. C. C., 790. RS. 1132. /< to be determined. It is accordingly held that interest in a question to be determined does not disqualify a district judge. 2 A mere interest in the question involved in a suit pending, there being no actual interest in the subject-matter of litigation, does not disqualify a judge from sitting on the trial of a cause. 3 The inter- est which d ^qualifies a judge from sitting in a case does not signify every bias, partiality or prejudice which he may entertain with ref- erence to the case, and which may be included in the broadest sense in the word " interest," as contradistinguished from its use as indi- cating a pecuniary or personal right or privilege, in some way de- pendent upon the result of the cause. 4 "Xo judge shall sit in any case wherein he may be interested" is the language used in the con- stitution of 1 s !."., and in each succeeding one. Interest in the case has always l>een deemed a disqualification. 1 Whether or not a per- son is directly interested in the subject-matter of a suit depends upon whether the judgment will directly affect him. 8 The law enumerates the only instances in which an interest not -arily pecuniary will disqualify a district judge. These are where he has been of counsel in the cause, or where either of the parties may be connected with him by affinity or consanguinity within the third degree. By naming those special cases where the judge's feelings may he intcroted, though he may not gain or lose iByars v. Crisp. -, A pp. Q ' >GrigBbj v. May. M T. 840 I'.i S. \V. Rep. 843). .11 v. Pmton,M T. 503. * Tayl..r v. William-, -jr. T. B8& . Chamber! v. 11., i 10L Hodde v. Susan, 58 T. m 56 COURTS AND JUDGES. [ 45. by the result of the suit, the law doubtless intended to limit all other oases of interest to such as should be of a pecuniary nature. He must, by the judgment of the case, gain or lose something the value of which may be estimated. Of the influence which pre- viously formed opinions upon questions involved in the case may have upon him, or the moral effect which his decision may have upon another judge presiding in other causes, the law takes no ac- count. It certainly will not consider such a circumstance when it does not appear that the judge sought to be disqualified had any pecuniary interest in the causes which might be affected by his de- cision. 1 The qualifications of a judge are not to be tested by the rules which determine the qualifications of a juror. It is presumed that he can and will divest himself of all previous conceptions he ma} 7 have formed as to the law or the facts, and base his judgment upon the case as developed upon the trial. The fact that a judge was formerly a member of a city council which passed upon a dis- pute between plaintiff and a corporation complained of for main- taining a nuisance does not disqualify him from sitting in a cause wherein plaintiff applies for an injunction against the maintenance of the alleged nuisance by the corporation. 3 A director of a national bank is required to own stock in the bank, and he is therefore disqualified as a judge to try a case to which the bank is a party. 3 A case on appeal was tried before the county judge. An attor- ney for the plaintiff, who was the brother of the judge, was to re- ceive for his services a contingent fee equal to one-half of the sum to be recovered. The interest of the attorney was unknown to the judge. In a suit by injunction to restrain the judgment on the ground that it was void, it was held that, the attorney not being a party to the suit, the judge was not disqualified. 4 A judgment rendered on a note made payable to a firm of which the judge who renders the judgment is a member, the note having been assigned by the firm for the purpose of securing a debt, is void. 5 A judge who is in possession of the land involved in a suit of tres- pass to try title, claiming adversely to the plaintiffs therein, is dis- qualified from trying the case, although he is not a party to the suit and his own title is not directly in issue. Where the interest of the judge in the subject-matter of the suit was not discovered by plaintiffs until after trial begun, their failure to make him a iKing v. Sapp, 66 T. 519 (2 S. W, Rep. 573); Waters-Pierce Oil Co. v. Cook, 6 Civ. App. 573 (26 S. W. Rep. 96). 2 Waters-Pierce Oil Co. v. Cook, 6 Civ. App. 573 (26 S. W. Rep. 96). 3 Williams v. City Nat. Bank of Quanah, 27 S. W. Rep. 147. 4 Winston v. Masterson, 87 T. 200 (27 S. W. Rep. 691). Templeton v. Giddings, 12 S. W. Rep. 851. 45.] COURTS AXD JUDGES. partv to the suit would not change the rule; and such disqualifica- tion beim: made to appear in a motion for new trial, the judgment, although correctly rendered on the merits of the case, was reversed and the cause remanded. 1 A judge owning property subject to city taxes is disqualified t<> render a judgment dissolving the city corporation and enjoining ol lection of such taxes.* If it could ho admitted that a judge cannot sit in a suit of another person for debt against a debtor who at the same time was owing the judi^e, such disqualification would cease to exist upon the pay- ment of the debt to the judge, or when the debt was transferred without i n >urse. The fact that the payment or transfer was made for the purpose of removing the disability would not affect the re- sult. A failing corporation was in the hands of receivers. The dis- trict judge had owned stock in it and was an officer. Before the trial of a suit against the corporation was had the judge had disposed of all stock, and had fully severed connection with its management, and it was held that the possibility of a suit against him for acts u/t/- lined and subtle distinctions to save a case from the operation of the maxim, when the principle it embodies bespeaks the propriety of it-> applica- tion. The immediate rights of the litigants an- not the only objects of tin- nil.'. A Hound public policy, which in interested in preserving every tribunal ap- pointed by law from discredit, i in jR-riously demands its 115,822. - \V. t ! v. State. 3 Civ. App, 17 (28 a W, Rep. 823). Nichols, ,11 v. Scliowalter. SJ T. 99 (18 S. \V. Beckham v. Rice. 1 Civ, App, 281 (21 & W. K i >'); St. Louis, A. & T. Ry. Co. v. Holden. :j A pp. C, C,, g :j-':j. IIMIICO Texan Land Co. v. Howe, 8 Civ. App. 315 (22 a W. Rep. 760). Peters v. Duke, 1 App. C. C., js : lini'iv \ j; .-can, ; App. C. C, i ;'0'J. Where the damages for land taken fir 58 COURTS AND JUDGES. [ 46. It seems that a county judge is not disqualified to pass upon the acts of an administrator by reason of the fact that he is surety upon the bond of such person as temporary administrator. The decision of this point, however, was not deemed necessary to a disposition of the case. 1 46. Disqualification of judge by relationship. The common-law rule of computing degrees of consanguinity is the rule adopted in this state. The mode of computing degrees of collateral consanguinity at common law is to discover the common ancestor, to begin with him to reckon downwards, and the degree the two persons, or the more remote of them, is distant from the ancestor, is the degree of kindred subsisting between them. Thus, two brothers are related to each other in the first degree, because from the father each one is one degree. An uncle and a nephew are related to each other in the second degree, because the nephew is two degrees distant from the common ancestor. In a case in which the judge and the wife of one of the defendants were cous- ins, their fathers being brothers of the whole blood, the judge was held disqualified. 2 A surety upon a claimant's bond, in proceedings for the trial of the right of property, is in legal contemplation such a party to the cause as that >his relationship, within the prohibited degrees, to the magistrate before whom the cause is pending, will disqualify the lat- ter from trying the cause. A narrow or contracted construction of the word party as used in the law, which would confine it to the very persons named on the docket as such, and would exclude such as stand in precisely the same relation, would often defeat the end had in view, of having justice administered free from the bias and influence produced by the interest held in the cause by the judge or his relatives. A party to an action is defined to be one who is di- rectly interested in the subject-matter in issue, who has a right to make defense, control the proceedings, or appeal from the judg- ment. 3 a road were paid to the wrong person, one who was not the owner, and the county brought suit to recover the money back, the county judge, who was the presiding officer of the commissioners' court, but acted only in his official capacity in the proceedings for laying out the road, was held competent to try the case. Clark v. Taylor County, 3 App. C. C.. 201. And in a suit on a con- tract of subscription to recover a balance due, the county judge, who was also a subscriber, but not liable with the defendant in the case, either jointly or sev- erally, was held not disqualified to try the case. Dicks v. Austin College, 1 App. C. C., 1068. Halbert v. Martin, 30 S. W. Rep. 388. * Tyler Tap R. Co. v. Overton, 1 App. C. C., 533. See this case for definitions of lineal and collateral consanguinity, and the rules of computation by the com- mon and canon law and by the civil law. SHoide v. Susan, 53 T. 389. 47.] COURTS AND JUDGES. 59 Tlio word pa ,-f>/, when used in connection with suits or actions, is a technical word, the meaning' of which is as certainly fixed as that of any word in the language. It means the person by or against whom a suit is brought, whether at law or in equity. All others who may be affected by the suit indirectly or consequentially are us intcre>ted, but not parties. Interest of a judge in a matter in litigation disqualifies him, but his disqualification on account of other persons may have under the terms of the con- stitution arises only when such persons are related to him within ilx-d degrees, and are parties. 1 "When, in a suit pending, -ister-in-law of the judge of the court is interested in an estate, which is involved in the action by the administrator being a party, the judge is disqualified from trying the cause, though the name of the sister-in-law be not mentioned in the pleadings. Such a judge can make no order dismissing the suit as to the estate and thus qualify himself to sit and adjudicate upon the rights of the re- maining parties. 2 ' 47. Disqualification of judge where he has acted as counsel. The fact that a judge had at some former period been connected as counsel with matters in litigation before him, or that he had acted as attorney for a part owner of a survey of land in litigation in the cause, but who was not interested in the suit pending, does not disqualify him from sitting on the trial of the cause. 5 It is not sullieient that he had been counsel in other cases involving the same land title as the one in question before him. 4 The constitutional provision does not limit his disqualification to a case pending at the time his services as counsel were invoked. If an attorney has been consulted as such, and has given advice as to a matter in dispute, which afterwards results in a suit between the parties at variance, he cannot sit as a judge in that case, even though he charged no Winston v. Masterson, 87 T. 200 (27 S. W. Rep. 70S). 2 Gains v. Barr. 60 T. 676. If, in a suit by the husband, the fund sought to be red would be community property, the wife, though nominally not a jurt y to tin- action, is such in legal effect, and if she isa sister of the wife of the judge i>f tin- cmirt in which suit is pending, she and the judge are so related lv atlin ity as to disqualify him from presiding in the trial of the case. Jordan v. Moore, In a suit against the husliand of a sister to the wife of a -i . if the defendant represents a ri^ht claimed hv himself and wife in munity. an 1 if tli.- judgment to be rendered against the hushand would affect the community estate of himself and wifeeven to the extent of costs then the wife iiiu-t 1..- considered a party to the suit, and the .r : -jiialitied from trying the cause. Schult/. v. .M--I.. - In a suit l.y a c.i]-|,,.rition the judge is not dist|ualiti' -1 l-y reason of th- f:i<-t that a holder in the ror|toration is hi^ l>r<>ther-iii-law. Le\vis v. Hillslxiro Roller Mill ..; s. \\. i;. p. 838; \Vi~- Ooan^j Cotl Ca r. Carter Bros., 3 App. C. C., g 300. tssciK-k v. Muu'li-s. :,.-, T. IfU. * Taylor v. Williams, 28 T.5S3. 60 COURTS AND JUDGES. [ 47. fee for his advice. The object of the provision was to secure to lit- igants an impartial judge, one who had not previously formed an opinion or reached a conclusion in regard to the subject-matter of the particular case; and additional force should be given to that construction when the advice given and conclusion formed concern the identical parties who are afterwards litigants. 1 That an attorney was of counsel for a defendant in a criminal case does not of itself disqualify him as judge from trying a case arising from the forfeiture by the accused of his bail bond for the offense. Jt not appearing that the attorney was ever spoken to by the accused about the bond, or that he ever spoke to the ac-. cused about it, and there being no testimony showing that any consultation among lawyers, participated in by the attorney, was held at the instance of the accused, the mere fact that the at- torney in conversation with other attorneys expressed an opinion upon the validity of the bail bond would not disqualify the attor- ney, afterwards elected district judge, from trying the case made by the forfeiture of the bond. 3 1 Slaven v. Wheeler, 58 T. 23, SHobbe v, Campbell, 79 T. 360 (15 S, W. Rep. 282), The plaintiffs in attach- ment took advice of a lawyer as to whether a town lot was subject to levy, when controlled by the defendant in attachment, alleged to be the owner, al- though he had executed a deed to another, Upon the advice the lot was levied upon and sold under judgment of foreclosure. Plaintiffs in attachment bought the lot and instituted suit for its recovery, The lawyer consulted had become district judge, and the case was tried before him and the plaintiffs recovered. In a subsequent action for the property, the validity of the judgment being in issue, it was held that the judge was not disqualified in the ejectment case by reason of his advice in the attachment suit, Cullen v, Drane, 82 T. 484 (18 S. W. Rep, 590). A law firm was consulted by and acted for the citizens in obtaining and executing an order for an election for the purpose of incorporating under the general incorporation Jaw, The town was incorporated. One member of the law firm became the district judge. An attack by quo wyrranto proceed- ings was made upon the legality of the incorporation, The district judge mado the order permitting the petition to be filed, but entered his disqualification before trial, A special judge was elected, who dismissed the proceedings upon the ground that the order nisi was a judicial act which the judge granting it could not make, On appeal, it was held (1) that the judge of the district court was disqualified by reason of his service in conducting the election, (2) The order granting leave to file the petition was a judicial act, and the judge, being dis- qualified to try the case, could not make the order, and the proceedings were properly dismissed. State v, Burks, 83 T. 584 (18 S, W, Rep, 602). A lawyer became a member of a law firm. In a suit in which the old firm was retained, by oversight the name of the new member was signed to oroas-interrogatories. He afterward became district judge, This did not disqualify him from try- ing the cause. Ft. W, , 40.] OOCET8 AND JUDGES. Cl 48, How disqualification of judge determined. Much >hnuld ho left to the discretion of the judge in determining his own disqualification to try a cause; and his decision on that question will only be reversed for manifest error. 1 An issue as to the disqualification of a judge to sit as such in a cause pending in his court should be tried and determined by him, and the facts in evidence on the issue should be incorporated in the record on appeal. The statemonts of the judge on the trial of such an issue should be made under oath, unless the same be waived by the par- it igant. On appeal from the judgment of the court, on an involving the disqualification of the judge, his statement ap- pended to a bill of exceptions, relating to facts occurring before the institution of the suit, cannot be regarded. 3 iisqualifying a judge must be established by testimony.' A defendant set up ore tenus the disqualification of the presiding ', on account of the alleged interest of the judge's brother in the suit, and took his exception to the action of the court thereon, which recited that "the objection was overruled without hearing any evidence;" the record disclosed on this point nothing further, and it was held that it could not be presumed that evidence was offered to sustain the objection. On the contrary, the presump- tion was that no evidence was offered. 4 ?' 49. Acts of disqualified judge. "While the law was in force authorizing a transfer to the district court of cases pending in the county court in which the judge was disqualified, it was held that the county judge had no authority to make any order in the cause except one relating to his own qualifi- cation ; but, having determined this question and made an order of transfer, he had the power to revoke the order, and having revoked it. the case remained pending in his court, and he, being disquali- fied, had no power to try it.* A county judge, who, by reason of his having been counsel in a case tried before a justice of the peace, ^qualified from sitting in the trial of the case, cannot, for the cruel treatment, and that hence her abandonment was not justified. After- wards the wife sued in this case for a partition of the community property, which was also sought in the first suit, though not in the second, which resulted in a divorce* It was held that the judge was disqualified to render judgment in the second suit, and that the decree therein rendered was not conclusive be- tween the parties. A charge recognizing the validity of the decree, as estab- li-hing the abandonment by the wife of her husband without cause, was held error. Kewcome v, Light, 58 T. 141. i Childress v. Grim, 57 T, 58, Slaven v. Wheeler, 58 T, 28. Henderson v, Lindley, 73 T. 185 (12 & W. Rep, 070). Stark v. Whitman, 58 T. 875. Poole v. Mueller Bxo* Furniture Co,, 80 T. 180 (15 S, W. Rep, 1055), 62 COURTS AND JUDGES. [ 50. same reason, grant a certiorari to remove the cause to the county court. 1 So also where he is disqualified by relationship with either of the parties. A certiorari thus granted is a void act. The dis- qualification extends to all such judicial orders, judgments or fiats as involve the exercise of the power which is conferred upon the judge to hear and determine upon the rights of the parties which may be involved in the case which shall be presented for his action. It extends to all remedial writs. And it is held that where the certiorari is granted and the case docketed, the judge has no power to dismiss it; that the only thing he could do would be to transfer it to the district court. 2 Where a judge is disqualified by reason of his relationship to one of the parties, he has no power to enter an order of discontinuance as to such party. 3 So where an attorney acted for citizens in call- ing an election for incorporating a city, an order afterwards made by him as district judge permitting a petition for an information in the nature of quo warranto to be filed, for the purpose of testing the legality of the proceedings, was void. 4 An order of a disquali- fied judge dismissing a suit is void. 5 A 'judgment rendered by a disqualified judge will be reversed, solely on the ground that he was disqualified; it is not material that the judgment was correct. 6 50. Special judges; their qualifications. Where a special judge is appointed by the parties or elected by the lawyers present, he must be an attorney of the court ; the gov- ernor is required to appoint a special judge who is not disqualified. 7 That a special district judge appointed to try a cause is a mem- bor of the legislature is no objection to his competency as judge. The objection to such special judge, made after his qualification as such, does not raise the question whether the office of special judge is one of emolument, or whether the two offices are incompatible. 8 A decree of divorce is not invalidated because rendered by a spe- cial district judge, who, at the time the trial began, was the county judge of the county. Even if he be such an officer as is forbidden under the constitution to hold another office, the acceptance and discharge of the duties of another office would operate an aban- donment of the office to which he had formerly qualified. 9 - i Baldwin v. McMillan, 1 App. C. C., 515. - 'Fellrath v - Gilder, 1 App. C. O, 1030. - * Gaing v. Barr, 60 1. 676. 4 State v. Burks, 82 T. 584 (18 S. W. Rep. 662). * Garrett v. Gaines, 6 T. 435. Casey v. Kinsey, 5 Civ. App. 3 (23 S. W. Rep. 818). 7 R.& 1069, 1071, 1132. . Roundtree v. Gilroy, 57 T. 176. Abup ^ Jordan, 69 T. 300 (6 & W. Rep. 831). The provision of the constitu- 51.] :js AM) JCDGES. 63 Powers of special judge. "Where the judge is disqualified from trying any case, the special jud:e appointed by the governor or by the parties "shall proceed to the trial or disposition of such case immediately, if the trial is pending, otherwise when called or reached, as in other ca.^ :i a social judge is elected by the bar on account of the ab- sence or disability of the judge, such special judge "shall proceed Id said court and conduct the business thereof, and shall have all the power and authority of the judge of said court, during such continued absence or inability, and until the completion of any busi- B begun before such special judge.' A special district judge, who qualified under the appointment, has authority to hear and determine not only the suit pending in which the appointment was made, but also any litigation between the same parties growing out of that suit; e, g., he can hear an in- junction suit to vacate the judgment and application after the term for a new trial in the case.* One specially appointed to try a ca>o cannot consolidate it with another case and try both. 4 The regular successor of a disqualified judge may try the cause in which orders have been made by a special judge; and when a special judge, who is appointed on account of the absence of the regular judge, has begun a trial, it may be completed by the regular judge when he returns.* tion is, that " no person shall hold or exercise, at the same time, more than one civil office of emolument except that of justice of the peace, county commis- sioner, notary public, and postmaster, unless otherwise specially provided herein." Const 1876, art XVI, ?! 40. And the rule adopted is, that where a person in office accepts another office incompatible with the first, and qualifies, he thereby resigns his former office. State v. Brinkerhoff, 66 T. 45 (17 S. W. Rep. 109), and cases cited. Suit was against several persons alleged to be partners in the bank- ing business, under the firm name of the Wharton Bank. A safe belonging to the bank was attached, but prior thereto some of the partners had made an assignment of all of the bank property, including the safe. The attorney who drew the assignment, advised the assignee, and as creditor of the bank had ac- cepted under the assignment, was not thereby disqualified to sit as special judge to try the case, because the validity of the assignment was not involved in the action as brought, nor the title of the assignee or the rights of persons claiming under the deed affected by it, none of them having been made partii .-. Kemp v. Wharton County Bank, 4 Civ. App. 648 (23 a W. Rep. 916). 1R.S. 1069, 1132. 2R.& 1071. 1 Harris v. Musgrave, 72 T. 18 (9 S. W. Rep. 90). Tex, Mex. Ry. Co. v. Cahill, 23 a W. Rep. 282. 4 Coles v. Thompson, 7 S. W. Rep. 579 (27 & W. Rep. 46; 29 & W. Rep. 958). While a special judge was engaged in the court room in the trial of a case in which the district judge was disqualified, the district judge, without objection of any of the parties, tried another case in another room in the court-house. In tin- latt.-r caso on appeal it was held that objection came too Into wlu-n made :. ' i-urty atu-r the trial lad ended. Such objection dots not go to tho jurisdiction. City of CoXs.cuna v. Kcrr, 70 T. 207 0- & W. IJt-p. Ur,\>. A special 6 COURTS AND JUDGES. [ 52, 53. 62. Adjournment of term where the judge fails to appear. Should the judge of any district court not appear at the time ap- pointed for holding the same, and should no election of a special judge be had, the sheriff of the county, or in his default any con- stable of the county, is required to adjourn the court from day to day for three days; and if the judge should not appear on the morn- ing of the fourth day, and should no special judge have been elected, the sheriff or constable, as the case may be, must adjourn the court until the next regular term thereof. 1 The same provision is made where the county judge fails to appear, with this difference: If the county judge fails to appear on the fourth day, instead of on the morning of the fourth day, an adjournment shall be had to the next regular term. 2 But it is held that the word " morning " includes the period between sunrise and 12 o'clock M. ; and if the sheriff of a county fails to adjourn the court on the morning of the fourth day of the term, when the district juflge had not appeared during the term until that time, and the judge should appear at any time before 12 o'clock M. of the fourth day and proceed to hold the term, a previous election of a special judge on the morning of that day is inoperative to invest him with authority to preside as judge for the term. 3 53. Terms of the district court. The district judge is required to hold the regular terms of his court at the county seat of each county in his district at least twice in each year, in such manner as may be prescribed by law ; and he must hold such special terms as may be required by law. The legis- lature has the power, by general or special laws, to authorize the holding of special terms of the court, or the holding of more than two terms in any county, for the dispatch of business; and is re- quired to provide for the holding of district courts when the judge thereof is absent, or is from any cause disabled or disqualified from presiding. 4 Whenever any unorganized county has become organized, and there is no time fixed by law for holding court in such county, the district judge in whose judicial district such county is situated shall fix times to hold at least two terms of court each year in such county or counties by a written declaration, to be forwarded by him district judge who after trying a cause sets aside the judgment rendered by him, and from doubts regarding the disqualification of the district judge refuses to proceed with the cause, may be compelled by the supreme court to proceed with the trial, so long as he holds the special appointment. Schultze v. Me- Leary, 73 T. 92 (11 S. W, Rep, 834). R 8. 1119. *RS. 1169. Tex. Mex. Ry, Co, v. Douglass, 09 T. 604 (7 8. W. Rep. 77), < Const, art. V, 7; R S. 1111, ;.' 54.] V.M) JTIKJES. 65 to the di>trict clerk of the proper county, and by him spread upon tin- minute ..f tin- district court. When the times are so tixed tln-y shall not he changed except by an act of the legislature. 1 When a court is organized and opened for a regular term, the continues until it is ended by order of final adjournment, or until the expiration of the time fixed by law for its continuance. The sessions or sittings of the court during the term are entirely within the control of the court; its orders in respect thereto are in- tended tor its own convenience and the convenience of parties inter- i in its proceedings. 2 When the statute allows a term of the district court to remain open until the business of the term has disposed of, it is for the district judge to determine when the term shall be dosed; but having determined and adjourned for the term, he cannot by order made in vacation reopen the court. 3 1. Special terms of the district court. Whenever it becomes necessary, in the opinion of the district jud^e of any district, on account of the accumulation of business, a speeial term or terms of the district court may be held in any county in his district. Such special term is appointed by an order entered upon the minutes of a regular term of the court held in the proper county, which order shall appoint the time for the holding of the special term at a day not less than thirty days after the adjourn- ment of the regular term at which the order is entered, and the order miM >tate the length of time deemed necessary for the holding of the special term. When the order is entered, the clerk issin notices containing a copy of the order, and also the name, style and number of each case appearing upon the docket which will be be- the court for disposition at the special term, which notice and copies shall be under the seal of the court. The sheriff shall post true copies of said notice at six public places in the county, one of which shall be at the court-house door, and shall return the original notice to the special term, with his return thereon, stating the man- ner in which he has executed the same, which notice and return *hall be entered in full in the minutes of the court. No new case can \>o brought to a special term. Juries are to be summoned the as at regular terms, and all proceedings are to have the same and etl'ect a^ those of a regular term, and may be appealed from in like manner. 4 1 R S. 1112. This act is held constitutional. Ex parte Mato, 19 Aj p. lie. 2 Labadie v. Dean, 47 T. 90: ClegK v. r..unty of Galveston, 1 App. C. C., 63. !.&<;. N. liy. Ca r. Sin.ti Where the trial of a civil case was adjourned untii after the criminal term of the county court, ami the case was tlit-n taken up and tried. it was held that the judgment was void. Bobbins T. 1 App. c. CL, 346. RS. 1113-1117. 5 C6 COUKTS AND JUDGES. [ 55, 56. Judges of the district court cannot order a session at a time and in a manner not provided for by law. 1 Judgment cannot be pro- nounced except at a lawful term. 2 Upon the statute being complied with in other respects, it is no objection to the validity of the acts of the court at a special term of a district court that it was held by a judge of another district and at a time when the judge of the dis- trict was holding the regular term of his court in another county of his district. 3 55. Terms of the county court. The county court is required to hold at least four terms for both civil and criminal business annually, as may be provided by the legislature or by the commissioners' court of the county, under au- thority of law, and such other terms each year as may be fixed by the commissioners' court; the commissioners' court of any county, having fixed the times and number of terms of the county court, may not change the same again until the expiration of one year. 4 The county commissioners' court of the several counties may, at a regular term of court, by an order entered upon the records, pro- vide for more terms of the county court for the transaction of civil, criminal and probate business, and fix the times at which each of the four terms required by the constitution and the terms exceeding four, if any, shall be held, not to exceed six annually, and may fix the length of said terms ; when it has fixed the number of terms by an order entered of record, it is not permitted to make any change for one year from date of the entry of the original order. 5 When not otherwise provided by law, the terms of the county court are held on the first Monday in February, May, August and November, and the court may continue in session three weeks. 6 56. Powers of district courts and judges. The civil jurisdiction of the district courts, original and appellate, is defined by the constitution, and such courts and the judges thereof " have power to issue writs of habeas corpus, mandamus, injunction and certiorari, and all the writs necessary to enforce their jurisdic- tion." 7 The statute provides that the judge of the district court shall have authority, either in term time or in vacation, to grant writs of 1 Chambers v. Hodges, 3 T. 517. 2 Crosby v. Huston, 1 T. 244. 8 Munzesheimer v. Fairbanks, 82 T. 351 (18 S. W. Rep. 697). Const, art. V, 29; R. S. 1167; Schwartz v. Liberman, 1 App. C. C., 289; Carothers v. WilkersonA App. C. C., 356; Mo. Pac. Ry. Co. v. Graves, 1 App. C. C., 677. RS. 1168. 6R.S. 1167. ? Const., art. V, 8. See 91, 98, 118, post. 57, 58.] COURTS AND JUDGES. 67 injunction, sequestration, attachment, garnishment, cer~ tiorari and >'//" /> . and all other writs necessary to the enforce- ment of the jurisdiction of the court. The same power is conferred upon county judges. 1 He may also appoint counsel to attend to the cause of any party who may make affidavit that he is too poor to employ counsel to attend to the same. County judges may exercise the same power. 1 57. Powers of the county court and the judges thereof. The jurisdiction of the county court in civil matters, original and apjH'llate, is prescribed by the constitution, and will be considered hereafter. The county court or the judge thereof has power to issue writs of injunction, mandamus and all writs necessary to the enforcement of the jurisdiction of said court. 1 The county judge has the same power to issue writs and appoint counsel for poor per- sons as is conferred on district judges. 4 ^58. Judicial discretion. There are many things, especially in practice, which are said to be within the discretion of the court, and it is said that where a judge is permitted to exercise a discretion, and there are no pre- scribed rules to regulate and control his action, it can have no other limit than his own moral sense of justice; 5 but that judicial discre- tion does not mean the exercise of the mere arbitrary will and ~ure of the judge. 8 There may be cases to which no known rules or fixed principles can be applied; in such cases the discretion exercised will not be revised. But where there are known rules of action prescribed, no exercise of discretion can dispense with them. 7 The binding force of established rules is well illustrated in a case in which a motion was made to put the witnesses under the rule. 8 The judge overruled the motion, with the remark that he knew of no rule of law requiring witnesses to be put under the rule in a civil case. In reply to this the supreme court (Walker, J. " There is such a rule, well recognized in England and America, ap- plicable alike to civil and criminal cases; it belongs to and is but a part f a >ystem of wise rules which have been established by the ta through the experience of ages, as best calculated to develop truth, expose falsehood, and to frustrate fraud. The right and duty 1 R. S. 1107. 1163. * R S. 1109, 1164. See the chapters on Jurisdiction. * Const, art. V, 16. See 118, post. R S. 1163, 1164. See 56, supra. Borden v. Houston, 2 T. 594. , ;oyl v. Hriiu-k, 85 T. 1. Hipp v. Hissell, 3 T. 18. - Watts v. Holland, 56 T. 54. 68 COURTS AND JUDGES. [ 58. of courts alike unite to require their observance. They are essen- tial to the procurement of a- fair trial, and to the illustration of the definition given of a court : ' A place where justice is judicially ad- ministered ; a place where rights are determined by ascertained and dr lined legal rules of right and procedure.' The existence of the rule, as applicable to all kinds of cases, is not, of course, to be con- founded with the regulations concerning its application to a given case. The common-law rule of evidence and procedure confides to the judge a discretionary authority as to when the rule may be in- voked and enforced. In our state no such discretion is extended to the judge in criminal cases; the statute gives the right to either party to invoke the rule. 1 . . . The refusal, in a proper case, to administer to a party the benefits of a rule of law, on which the security in his rights of property depended, by the court having original jurisdiction, even where a legal discretion was con- fided to the judge as to when it should be invoked, and the refusal of an appellate court to revise and correct the abuse of such discre- tion, where it resulted in injury to the party claiming it, in a case where, upon the facts, it is apparent that the protective objects of the rule itself required its application in the case, would amount, in effect, to the substitution of an unregulated, and, as it might be, ca- pricious and despotic, discretion in name, but mere personal will in fact, for the ' law of the land.' "Whilst an appellate court will very properly refuse ordinarily to revise the action of an inferior court as to matters which are confided to the discretion of the judge in the administration of that class of rules which in their nature are not susceptible of being re- vised so as to determine whether the discretion has been abused or not, yet where that discretion involves the duty of a' court to ac- cord to a party a right necessary to the attainment of justice in de- termining his right to life, liberty or property, and, as a matter of law, in the given case, it is apparent that the party was entitled to have that discretion exercised in his favor, the reason of the ordi- nary rule of not revising the action of the court below ceases, and it ought to be revised just the same as any other alleged error. " There is, of necessity, confided to the judge trying a cause, dis- cretion over a great variety of subjects which pertain to the prog- ress of the trial, from its beginning to the end; as is to be noticed in respect, for instance, to continuances, amendments of pleadings, pleadings and parties, a variety of matters relating to practice, the examination of witnesses, the granting or refusal of new trials, etc. The principles which have directed the decisions of the supreme court, in passing upon questions involving the right to revise the exercise of judicial discretion when it has been employed in courts 1 R. S. 682; Brown v. State, 3 App. 295. 58.] ci JUDGES. 69 of original jurisdiction, over all these various subjects, illustrate, we think, abundantly tin- propositions which we have laid down, and show that the exercise of discretion will always lie the subj< on, where it can bo made to appear that it has been ;i to the subversion of a rule of law which conferred a right upon the injured party." ' T ico Wheeler, in discussing the principle of law applicable to the discretion of the district judge in applications for continuance, said: "Our legislature has seen lit to prescribe certain rules ap- ble to the subject, and it can scarcely be supposed that the tion of the judge can rise superior to these rules. Such a sup- ion would elevate judicial discretion above the law of the land. It would make it in effect arbitrary and absolute. Such a principle would be intolerable, and cannot be recognized. When there is no rule, or when the rule is inapplicable, or does not afford a perfect guide, then there is room for discretion, and from the necessity of the case it must exist. There may be cases to which no known rules or fixed principles can be applied ; and the discretion which must be exercised cannot be the subject of revision. But when there are known rules of action prescribed, there can be nowhere a dis- cretion to dispense with them." - The court has a discretion in granting or refusing an application for a continuance which does not comply with the statute; but the discretion is not an arbitrary one, and, if it has been abused, the ap- pellate court will revise.* A discretionary power may, when exercised by a corrupt and in- competent judge, become a despotic power; but the rule is that a judge of a court of superior or general authority is not liable in a civil action for his judicial acts. It is said that this rule obtains in all countries where there is any well-ordered system of jurispru- dence. It has been the settled doctrine of the English courts for centuries, and seems never to have been denied in the courts of this country. This exemption from civil liability cannot be affected by the motives with which judicial acts are performed. The purity of the motives cannot in this way be made the subject of judicial in- quiry. It is not material that the acts complained of were in of the jurisdiction of the court *and are alleged to have been done maliciously or corruptly. Hut it is said that a distinction must 'Ol.lham v. Stak-T. JJ T. 200; Brooks r. Howard, 30 T. 278: Stanl.-y v. Kpper- 8.m. r, T. 64.-i; Mays v. Moore, 13 T. 5; Hipp v. Hat. 1.,-tt. 4 T. '<: Hipp v. Bissell, ia -Hipp v. Bissell, 3 T. 21. Tex. & Pac. Ry. Co. v. Hardin. fi'2 T. :UiT: Allyin v. Willis. IW T. 65: Guy v. Metcalf. 83 T. 37 (18 S. W. Rep. 419); Rubrecht v. Powers, 1 Oto Aj.p. v S. \V. Rep. 319). 70 COUKTS AND JUDGES. [ 59. be observed between an excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is vested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. In reference to judges of limited and inferior authority, it has been held that they are protected only when they act within their jurisdiction. 1 The practical solution of the question of liability depends upon whether the act complained of was ministerial or judicial. As a general rule, in the former case an action will lie, in the latter it will not lie. 2 59. Proceedings in vacation. The record of a judgment may be amended in vacation. 3 Writs of injunction may be granted. 4 A remittitur may be entered be- fore the clerk in vacation. 5 A statement of facts may be filed in vacation, pursuant to an order entered of record during the term. 6 Proceedings in respect to apprentices, except the act of apprenticing the minor, may be had either in terra time or in vacation. 7 The judge of the district court may, in vacation, appoint a receiver in pro- ceedings by a city to compromise its debts. 8 Disobedience of an injunction may be punished by the judge in vacation. 9 Proceed- ings for the removal of officers may be commenced in vacation. 10 A petition for leave to file an information in the nature of a quo warranto may be presented to the district judge and may be granted by him in vacation. 11 The judges of the district and county courts may issue, in vaca- tion as well as in term time, writs of mandamus, injunction, seques- 1 Randall v. Brigham, 7 Wall. 523; Bradley v. Fisher, 13 Wall 335, 2 Myer's Fed. Dec., pp. 1418, 1431. 2 Rains v. Simpson, 50 T. 495. RS. 1357, 1358. 0: State v. Thurmond, 37 T. 340. Smith v. Brown. :j T. 72 COURTS AND JUDGES. [ 61. shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall tile any fictitious pleading in a cause for such purpose, or shall make statements in pleading presenting a state of case which he knows to be groundless and false, for the purpose of securing a delay of the trial of the cause, may be held guilty of a contempt, and the court, of its own motion, or at the instance of any party, will direct an inquiry to ascertain the fact. 1 Applying abusive and opprobrious epithets to a judge in vacation does not involve fraudulent or dishonorable conduct or malpractice within the meaning of the statute. 2 The forcible interference with and defiance of the lawful author- ity of a court is an offense irrespective of the intent with which the act is committed; the plea of ignorance is wholly inadmissible. 3 Disobedience of an injunction may be punished by the court or judge in term time or in vacation. 4 The delivery of personal prop- erty pursuant to a judgment may be enforced by attachment, fine and imprisonment. 5 Clerks, sheriffs, constables or other officers neglecting or refusing to perform any duty required of them under title 30 of the statutes regulating practice may be punished as for a contempt. 6 Witnesses refusing to obey a subpoena may be pun- ished, 7 or for refusing to give evidence, 3 if the question asked is legal and proper. 9 A jury commissioner failing, without a reason- able excuse, to attend and perform the duties required of him may be punished. 10 Defaulting jurors who have been lawfully notified may be punished. 11 Conversing with a juror, without permission from the court, while the jury has a case under advisement, is a contempt. 12 61. Proceedings in contempt cases. It is not proper to call a jury to try a question of contempt, ex- cept where it is expressly provided for by law. If the contempt be committed in view of the court, it may summarily punish the of- fender. If the party be only prima facie in contempt, as where a sheriff fails to return process, or where the act is not committed in the presence of the court, or so near as to interfere with its busi- i Rule 51. a Jackson v. State, 21 T. 668. 'State v. Sparks, 27 T. 705. R S. 3011. R S. 1339. R S. 1455; Crow v. State, 24 T. 12. 7 R S. 2267. 8 R S. 2269, 2283. 9 Hoi man v. Mayor of Austin, 34 T. 668. 10 R S. 3148. R S. 3186. Ellis v. Ponton, 32 T. 434. ''2, C3.] COURTS AND JUDGES. 73 ness, the proper practice is to enter a judgment n!xi for the amount of the lint-, ami to issue a requiring the offender to show cause why it should not he made final; and lit* must answer under oath. The court is to decide whether the answer is sufficient to piirjre the contempt ; it is not restricted to the answer, but may re- ceive other e\ idence, and may in its discretion remit the line in whole or in part, with or without costs; there is no appeal from the judgment. 1 The srire facia* should properly describe the court in which the judgment /*/*/' was rendered.* A contempt of court is not an offense or crime within the meaning of the penal code.' It is said, however, that a wilful contempt is an offense at common within no limited or restricted sense, but in the general sense of crime. 4 The general rule is that neither an appeal nor writ of habeas corpus will lie to revise the judgment of the court. 5 62. Writs and process. The style of all writs and process shall be "The State of Texas." * The impress of the seal of the district and county courts must be attached to all process issuing out of such courts, except subpoenas. 7 All process, except subpoenas, not under seal is void. 8 A citation not under seal is void, and will not support a judgment 1>\ default." All process must be made returnable on the first day of the next term of the court after the issuance thereof, must be dated and tested by the clerk, and the date of the issuance of such process or writ must be noted thereon. 10 63. Seals of district and county courts. h of the several district courts must be provided with a seal, having engraved thereon a star of five points, in the center, and the words. " District Court of - County, Texas," the impress of w h ich must be attached to all process, except subpoenas, issued out of the eourt, and must be used to authenticate the official acts of the clerk. When no such seal has been provided for the court, the clerk may use a scroll until a seal can be procured. 11 The same provision i& made for county courts. 1 - In counties in which a single clerk is 1 Crow v. State, 24 T. 12; State v. Thurmond, 37 T. 340; Ex parte Ireland, 38 T. 144 2 Carter v. State, 4 App. 165. I Casey v. State, 25 T. 380. United St;it. > v. Jacobi, 1 Flippin, 108, 11 Myer's Fed. Dec., 2150. But the common law as to crime is not in force in Texas. Jordan v. State, 14 T. 436; Casey v. State, 25 T. 380. Const, art V. g 12: R. s. 1 147. 7R S. UK. 117-J. 1117. Ml-. "Frosh v. Schlumpf. '2 T. l.'J. I 1 lale v. Gee. ','! S. \V. K.-p. 1 L '" K. a 1447. R. S. 11 :.','. Il-j:i. 1447. 1448. ls R. S. 1 17-J, 1177. Tlu- seal of the supreme court has a star of five points, with. 74 COURTS AND JUDGES. [ 64. elected for the district and county courts, he is required to use the seal of the district court in performing his duties as clerk of that court, and in performing the duties of clerk of the county court to use the seal of that court. 1 The notices of a special term of the district court must be under seal.- The commissioners' court is required to provide seals for the dis- trict and county courts. 3 The clerk of the district court is the cus- todian of the seal of the court. 4 The clerk of a court of record is ordinarily the keeper of its seal, and the seal of the court of which he is clerk is his official seal. 5 A seal bearing the words " District Court, Bexar County," instead of " District Court of Bexar County," was held to be valid. 6 The rules for the district and county courts provide that the sheets on which the transcript on appeal is written shall be fastened together at the upper end with tape, ribbon, or some- thing of the kind, and sealed over the tie with the seal of the court. 7 g 64. Minutes of court. The minutes of the proceedings of each preceding day of the ses- sion must be read in open court on the morning of the succeeding day ; except on the last day of the session, on which day they must be read, and if necessary corrected and signed in open court by the judge. When a special judge has presided during the term, or a portion thereof, or in the trial of a particular case, he must sign the minutes of such proceedings as were had before him. 8 The same provision is made for county courts. 9 An amendment of a judgment by the judge in vacation must be entered in the minutes. 10 Also the action of the court in receiving a verdict ; n or the remittitur of an excess in a verdict ; 12 or the order of a district judge appointing a special term of the district court, and the notice and the return thereof by the sheriff. 13 Also the record of the election of a special district or county judge. 14 the words " Supreme Court of the State of Texas " engraved thereon. R S. 953. The seal of the courts of civil appeals is of the same design, containing the words "Court of Civil Appeals of the State of Texas." R. S. 1004. R S. 1097, 1153. 2RS. 1115. 3 R S. 1551. R. S. 1093. * Moore v. Carson, 12 T. 66. 6 Cordova v. State, 6 App. 207; Marnock v. State, 7 App. 269. 7 Rule 90; Mays v. Forbes, 11 T. 284. R S. 1120, 1121. RS. 1170, 1171. 'R S. 1358. RS. 1324,1325. 12 R S. 1353, 1354. iR S. 1114, 1116. S. 1070, 1075, 11320. CHAPTER IIL OF JURISDICTION. (General principles. 68. At law and in equity. 67. Courts and legislature bound by the organic law. 68. Concurrent jurisdiction. 69. Courts of general, and of special and limited, jurisdiction. 70. Collateral attack. 71. Jurisdiction by consent 72. Over the subject-matter. 73. Jurisdiction over the person. 74. Jurisdiction over non-residents. 75. Extra-territorial jurisdiction. 76. Local and transitory actions, 77. Same; tort actions. 78. Fraud on the jurisdiction. 65. General principles. The jurisdiction of a court means the power or authority con- ferred upon it by the constitution and laws to hear and determine eauses between parties, and to carry its judgments into effect. 1 And to give any binding effect to the proceedings of a court, it must have jurisdiction of the person of the defendant and of the cause or subject-matter; the want of jurisdiction makes the judgment ut- terly void and unavailable for any purpose. 2 The principle that the judgment of a court acting without authority is null, seems to be of universal application ; the only difference in its effect on the judgments of courts of general jurisdiction, and courts of specially limited jurisdiction, is that, in support of the former, jurisdiction is presumed, while in support of the latter, jurisdiction must be proved. 3 The word jurisdiction, when its meaning is involved in an inquiry as to whether the judgment of a court is void or voidable, can have but one meaning, and that is the lawful power to hear and deter- mine the matter in controversy. If this power did not exist, and its absence is shown from the record, the judgment rendered in the attempt to exercise jurisdiction is void. 4 The direct purpose of all judicial action is relief to a litigant, which cannot be given by a judgment or decree alone, but must be given, if at all, through the enforcement of the one or the other by ap- propriate process; and the highest test of the jurisdiction of a court i Withers v. Patterson, 27 T. 491; City of Brownsville v. Basse, 43 T. 441. 'Mitchell v. Runkle, 25 T. Sup. 132; Fleming v. Nail, 1 T. 250; Horan v. Wah- renoerger, 9 T. 3ia Horan v. Wahrenberger, 9 T. 313; Bryant v. Kelton, 1 T. 434; Walker v. Myers, 36 T. 203. A judgment rendered without jurisdiction is void. G., C. & S/F. Ry. Co. v. Rawlins, 80 T. 579 (16 a W. Rep. 430). Stewart v. Anderson, 70 T. 588 (8 S. W. Rep. 25). 76 JURISDICTION, [ 66, 67. in a given case is found in the answer to an inquiry whether it has lawful power thus to enforce its judgment or decree. This rule is thus clearly expressed by the court of appeals of Maryland: 1 " It would be an idle thing in chancery to entertain jurisdiction of a matter not within its reach, and make a decree which it could have no power to enforce or to compel a compliance with. And the absence of that very power is a good test by which to try the question of juris- diction. It would be a solecism to say that the chancellor has ju- risdiction to decree in rem, where the thing against which the decree goes, and is alone the subject of and to be operated upon by it, is beyond the territorial jurisdiction of the chancery court, and not subject to its authority, and the decree, if passed, would itself be nugatory for the want of power or jurisdiction to give it effect." Jurisdiction must depend upon the laws creating and prescribing the powers of the tribunal; and if it attempt to exercise a power not thus conferred, its judgments are not binding. If the fact on which jurisdiction depends is determined by law, then resort to the presumptions ordinarily indulged in favor of the power of a court of general jurisdiction which has assumed to act in a given case is neither necessary nor admissible. Where one court has assumed the power to act in a given case, every lawful presumption that it did not act without jurisdiction ought to be indulged ; but where it is clear that a court has acted without lawful power, another court, when called upon to adjudicate the rights of litigants, cannot law- fully refuse to make inquiry even as to the jurisdiction of the other when this becomes necessary to the determination of the questions before it. 2 66. At law and in equity. The courts of this state have jurisdiction of rights equitable as well as legal, and all rights, both legal and equitable, appertaining to the parties and subject-matter, must be adjudicated in every suit where they are litigated and drawn in question. 3 67. Courts and legislature bound by the organic law. Courts cannot transcend the jurisdiction given them by the law of their creation. Their powers cannot be enlarged by intendment, so as to embrace objects not expressed in the law. 4 It was the ob- ject of the framers of the constitution to mark out a complete judi- 1 White v. White, 7 Gill & J. 210. 2 Tex. & Pac. Ry. Co. v. Gay, 86 T. 571 (26 S. W. Rep. 599). 'Const., art. V, 8; R S. 1191; Smith v. Doak, 3 T. 216: Simpson v. Huston, 14 T. 476; Payne v. Benham, 16 T. 364; Gibson v. Moore, 22 T. 611; Douglass v. Neil, 87 T. 528. 4 Cowan v. Nixon, 28 T. 230; Baker v. Chisholm, 3 T. 157; Solon v. State, 5 App. 301. f OS.] .ui:i>i.i( II...N. 77 cial sy^t.-m. detinini: generally the province of each of the courts, by reference \t the legislative department, except when the power to make the change is conferred by the constitution itself. 1 When the constitution confers jurisdiction "with such exceptions and under such regulations as the legislature shall make," and the legislature adopts statutory regulations restricting jurisdiction, such regulation is in effect a negative on the exercise of any jurisdiction :>t such as is included in the statute. 2 68. Concurrent jurisdiction. Where the jurisdiction is concurrent, the court which first takes jurisdiction acquires control to the exclusion of the other, and is entitled to go on to judgment. 3 The conferring upon an inferior court jurisdiction of a case of which a superior court has juris- diction renders their jurisdiction concurrent but not inconsistent.* There is a manifest propriety, if not necessity, for holding that the court which tirst acquires jurisdiction over a controversy should maintain it undisturbed by the interference of any other co-ordinate jurisdiction, and there is much force in the proposition that its juris- diction over the res to which the controversy relates should not be 1 Ex parte Towles, 48 T. 413. On April 2, 1869, M. instituted a suit in the dis- trict court to divest her children, who were, at the time, minors, of the title to certain real estate in Texas, previously conveyed to them by a deed of gift from her, and to vest the same in "W., offering to recompense the minors for their in- terest in the Texas property by a mortgage, to the extent of its value, upon property in the state of New Jersey, acquired by her from W. subsequently to her deed to them, and in exchange for which she had conveyed the Texas prop- erty, at a valuation agreed upon between W. and herself. The proceedings were wholly between M. and W., and a decree was entered in the cause divesting the children of the title to the Texas property and vesting it in W. The minors ataining majority brought suit for its recovery, and it was held (1) that no power exists in any person or tribunal to divest a minor of title to real es- tate, unless such power be conferred by the law-making department of the state. ',' That the district court had no jurisdiction of the matter in which it avsiiuieil to act, by any power conferred upon it by either the constitution of 1806 or the laws in force at the time. Its judgment granting the relief prayed for was thr attempted exercise of an original jurisdiction conferred upon county courts alone, and was void. (3) That the district court, whether as a court of law or a court of equity, had only such power as the constitution gave it. There is no such power as the inherent power of a court, if by that is meant a power which a court may t-xcrrise without a law authorizing it. (4) When the constitution. in express terms, confers upon one court, and not upon another, jurisdiction o\.-r a particular subject-matter, it must be presumed that it was intended that the jurisdiction thus conferred should be exclusive. Messner v. Giddings, 65 T. 301. 2 Ropers v. K'.-nnanl, 54 T. 30. 'Burdett v. state, 9 T. 43: Clepper v. State, 4 T. 242. Johnson v. Happell, 4 T. 96. 78 JURISDICTION. [ 69, 70. interfered with in any case in which the custody of the thing is necessary to the full adjustment of the rights of the parties to the controversy. 1 69. Courts of general, and of special and limited, jurisdiction. It is only when a court of general jurisdiction has conferred on it special and summary powers, wholly derived from the statute, and which do not belong to it as a court of general jurisdiction, and when such powers are not exercised according to the course of the common law, that its judgments are to be treated like those of courts of special and limited jurisdiction. 2 "Whether the jurisdiction of the court be general or special, it can- not be made to depend upon the character of the process through which it acquires power over the person or thing to be affected by its final adjudication. The same presumption must be indulged in favor of jurisdiction whether service be had personally or by publi- cation.* Every court of limited powers must determine its own jurisdiction in the first instance, but this does not preclude another court from making the same inquiry. It is held, however, that evidence aliunde the record cannot be considered by an appellate court in determin- ing the question of the jurisdiction of the court a quo* 70. Collateral attack. The finding of a court of general jurisdiction in regard to the jurisdictional facts on which its judgment is based is conclusive against all collateral attacks, except in cases where the record of its own proceedings discloses their nullity by showing that jurisdic- tion had never attached in the particular case. 5 When a domestic judgment is attacked collaterally, every pre- sumption will be indulged in favor of the jurisdiction of the court and the validity of its judgment ; and where it does not otherwise appear, it will be presumed that the court ascertained all the facts necessary to its jurisdiction. To attack the jurisdiction it must affirmatively appear that the facts essential to it did not in fact exist. In construing the effect of judgments rendered upon con- structive service by publication, the same conclusive effect is given to them as to those rendered upon personal service. And should an affidavit made as the basis for citation by publication be . Trunk Ry. Co. v. Lewis, 81 T. 1 (16 S. W. Rep. 647). 2 Holmes v. Buckner, 67 T. 107 (2 S. W. Rep. 452). 'Stewart v. Anderson, 70 T. 588 (8 S. W. Rep. 295). * Griffin v. Brown, 1 App. C. C., 1098, citing Lindsey v. Luckett, 20 T. 516; Chrisman v. Graham, 51 T. 454. Brockenbrough v. Melton, 55 T. 493; Williams v. Haynes, 77 T. 283 (13 S. W. Eep. 1029). 71.] JURISDICTION. Ti) found wholly insufficient, or no affidavit at all, the judgment would nevertheless stand when attacked collaterally, because the law pre- sumes that a proper affidavit was made, and such presumption will exist until the contrary is affirmatively shown by something in the record. 1 And a recital in the judgment that the defendant was "duly cited with process" imports absolute verity. If the uncon- tnulicted recitals in the record show affirmatively that the court did not have jurisdiction over the subject-matter, or that the juris- diction over the person did not attach, then a presumption to the contrary will not be indulged. Otherwise the presumption in favor of the jurisdiction of the court would prevail in every case, and the mere rendition of the judgment would of itself import abso- lute verity. To thus hold, in cases where the record shows affirm- atively want of jurisdiction, would itself impeach the record, and thus violate the very rule sought to be invoked, that the record cannot in a collateral proceeding be contradicted. 2 Whatever may be the hardship of the particular case, yet, upon considerations of public policy and from the weight of authority, the true rule is held to be, that a domestic judgment of a court of general jurisdiction, upon a subject-matter within the ordinary scope of its power and proceedings, is entitled to such absolute verity, that in a collateral action, even when the record is silent as to no- tice, the presumption, when not contradicted by the record itself, that the court had jurisdiction of the person also, is so conclusive that evidence aliunde will not be admitted to contradict it. 1 As to foreign judgments, the rule is that when sued upon or of- fered as a basis of right in a court in Texas, it may be shown that the court rendering the judgment had no jurisdiction either of the subject-matter or the person. 4 The record of such a judgment may be contradicted as to the facts necessary to give the court jurisdic- tion, notwithstanding it may be recited therein that they did exist; and if it be shown that in fact such jurisdiction did not attach, the judgment is a nullity.* 71. Jurisdiction by consent. Jurisdiction cannot be given by consent over the subject-matter, but it is otherwise as to the person. 8 "Where there is a demurrer to i Hardy v. Beaty, 84 T. 563 (19 S. W. Rep. 778). J Treadway v. Eastburn, 57 T. 209; Murchisun v. \Vhiu-. .">4 T. 78; Bordagers v. Higgins, 1 Civ. App. 43 (19 S. W. Rep. 446; 20 S. W. Rep. U Tennell v. Breedlove, 54 T. 540; Fitch v. Boyer, 51 T. 344; Kramer v. Breed- love, 8 S. W. Rep. 561. Norwood v. Cobb, 15 T. 500; Chunn v. Gray, 51 T. 114; Redus v. Burn. T. 576; Franz Falk Brewing Co. v. Hirsch,78T. 1DJ 1 1 & W. Rep. 450); Southern Ins. Co. v. Wolvi-rt.m Hardware Co., 19 S. W. Rep. 615. Chuun v. Gray, 51 T. 1 12. Morton v. Gordon, Dallam, 396; Wynns r. Underwood, 1 T. 48; Burnley v. 80 JURISDICTION. [ 72. the jurisdiction of the court, and the record fails to show any ac- tion thereon, all parties before the court are taken to have submitted to its jurisdiction. 1 In the absence of citation, when jurisdiction over the person is acquired by a voluntary appearance and answer filed, it is not lost by sustaining a demurrer to the answer. 2 An agreement in a lease from the state that the venue for suit upon it shall be in Travis county does not confer jurisdiction upon the court over the person of the party signing such lease contract who is a citizen and resident of another state. 3 Consent of parties cannot give jurisdiction to a county court to exercise general supervisory control over justices' courts. 4 If the court has jurisdiction of the subject-matter or cause of action, con- sent may confer jurisdiction of the legal person or corporate body; and the appearance of a foreign corporation to the action by an attorney, and answering thereto, amounts to such consent and places the defendant in court subject to its jurisdiction. 5 Where a proceeding involves the determination of the question whether a house built by one on the land of another is real estate or personal property, an agreement by the parties that it may be considered as real property is not sufficient to determine the juris- diction. 6 72. Over the subject-matter. "Want of jurisdiction over the subject-matter will arrest the pro- ceedings at any stage. 7 But all that is necessary to the exercise of jurisdiction, once obtained, is that the subject to be embraced in the decree is something incidental to the cause of action which orig- inally gave the court jurisdiction, or so closely connected with it as to render its determination necessary to the final decision of the whole controversy between the parties. This principle is peculiarly applicable to the Texas system of jurisprudence, the theory of which is, that a multiplicity of suits growing out of the same subject- matter must be avoided, and all controversies, so far as they are germane to the original cause of action, settled in the same suit. 8 Cook, 13 T. 586; Campbell v. Wilson, 6 T. 379; Pool v. Pickett, 8 T. 122; Griffin v. Brown, 1 App. C. C., 1099. 1 County of Galveston v. Noble, 56 T. 575, 2 Brooks v. Chatham, 57 T. 31. 3 York v. State, 73 T. 651 (11 S. W. Rep. 869), 4 McMahon v. Dennis, 1 App. C. C., 1209. 5 Piedmont & A. L. Ins. Co. v. Fitzgerald, 1 App. C. C., 1346. e Haney v. Millikin, 2 App. C. C., 223. 7 Able v. Bloomfield, 6 T. 263; Griffin v. Brown, 1 App. C. C., 1099. 8 Chambers v. Cannon, 62 T. 293. It is held that where the district court had obtained cognizance of a cause by reason of an injunction sued out to restrain the sale of property levied on under execution, it rightfully retained it for the purpose of decreeing damages for a detention of the property by the sheriff and plaintiff in execution. 73.] JTUISDICTION. 81 Whether want of jurisdiction arises from the fact that the thing to be anVotrd l>y the judgment and process of a court is without its territorial jurisdiction, or without its jurisdiction for any other reason, is unimportant, for in either case the process is invalid. 1 It is said that jurisdiction over the subject-matter is complete when suit has been instituted on a cause of action coming within the defined authority of the court, and that to this extent the juris- diction is valid, though not perfect for final disposition of the case until the parties defendant have been properly brought within con- tn.l of the court by means of legal process in the manner pointed out bv la\v. A judgment rendered without having jurisdiction both of the subject-matter and the parties is void. 2 Where a person has a right given by a statute to be a member of a society created by the statute, the courts will interfere to protect that right, regardless of the question of property. 1 Mandamus is the proper remedy to restore a member to rights and privileges which are wrongfully denied him. 4 73. Jurisdiction over the person. Jurisdiction to render a judgment can be acquired only by com- pliance with what the law prescribes shall be done to confer it, and, without a substantial compliance with this, power to render a judg- ment does not exist.* Jurisdiction is acquire^ over a plaintiff by his voluntary submission of a cause of action to the court, and one instituting proceedings for the revision of the action of an inferior court thereby gives to the court exercising appellate or revisory power jurisdiction over his person. Jurisdiction over a defendant is acquired by his voluntary appearance or the service upon him of such process as the law provides. 6 i Tex. & Pac. Ry. Ca v. Gay, 86 T. 571 (26 S. W. Rep. 599V G., H. & a A. Ry. Ca v. McTiegue, 1 App. G C., 457. Manning v. San Antonio Club, 63 T. 166. 4 Screwmen's Benev. Ass'n v. Benson, 76 T. 553 (13 & W. Rep. 379). O., C & a F. Ry. Co. v. Rawlins, 80 T. 579 (16 a W. Rep. 430); R a 124 A. Glass v. Smith, 66 T. 548 (2 a W. Rep. 195); Womack v. Shelton. 31 T Tulane v. McKee, 10 T. 355. A defendant was sued in a county other than that of his residence to rescind a parol contract alleged to have been induced by de- f i- p. hint's fraudulent representations made in the county in which the suit was brought The petition set forth properly the county of defendant's residence. The defendant pl'-aded to the jurisdiction, under oath, on the ground only that >s sued out of the county of his residence. No action was taken on the plea to the jurisdiction, but, after trial on the merits, the court dismissed the case for want of jurisdiction, and it was held: (1) Tin- ri^ht of a defendant to plead to the jurisdiction of the court when sued out < ,;ity of his resi- dence is a personal privilege, but, if not exercisid at the proper time and in a proper manner, it dots not take away the authority of the court to he:u mine the case m:iv publication, an appearance for the purpose onlv ( f objecting to the jurisdiction of the court over his person will jurisdiction, and operates as an appearance to the next term. 1 A dant \vho liles any defensive pleading makes such an appear- ance under the Revised Statutes as gives the court jurisdiction over his person as fully as would the issuance of proper citation and its proper service within the state. The purpose for which an appear- is made is unimportant, as is the intention with which it is made, if the act done is one which the statute declares is such as - to the court jurisdiction to render a personal judgment against -on appearing. 2 Whenever it appears from an inspection of the record of a court of general jurisdiction that the defendant against whom a personal decree or judgment has been rendered was at the time of the al- leged service without the territorial limits of the court, and that lie never appeared in the action, the presumption of jurisdiction over the person ceases, and the burden of establishing the jurisdiction is upon the party who claims the benefit or protection of the judgment or decree. The presumption regarding the attaching of jurisdiction exists when the defendant is shown by the record to have been within the jurisdiction of the court. The statute does not contemplate that the seizure of the property of a non-resident by attachment, in a suit by publication, is notice; the notice must be given either by personal service or by publication, and when by publication it will not authorize as against a defendant not person- ally served, and who makes no appearance, a judgment on a new cause of action set up by way of amendment, and of which no no- tice was given by publication. The giving of notice in the manner pointed out by the statutes is necessary to clothe a court with power to hear and determine the pending cause if there be no appearance. Unless this notice is legally given no court has power or jurisdic- tion to order a sale of the defendant's property though in custodia by virtue of its seizure under a valid attachment. 1 It seems to be settled in this state, that, unless it be made to ailirmatively ap- in a collateral proceeding that defendant in a suit by publica- tion was a non-resident at the time of service, this will not be umed; but on the contrary it will be presumed that iKauffman v. Wooters, 79 T. 205 (13 S. W. R->p. r,u: York v. Statr. 7 ; T. r,v, \V. Rep. 869); Sam v. Hockstadler, 76 T. 162 (18 S. \V. R, -,,. :,:;:, . dEfcna I.. a v. Hanna, 81 T. 487 (17 a W. Rep. 35); Pace v. Pott.-r. v. T. -i;:i ,20 S. W. Rep. 928); Fairbanks v. Blum, 2 Civ. A pp. 479 (21 S. W. !; |.. \M\\-,-. M. x. Cent. Charman. -4 S. \V. Rep. 058; Pentu-1.1 v. Harri-. 7 Civ. .\\<\>. < s. \v. Rep . Rep. 869); St L., A. & T. Ry. Co. v. W! 70 T. 588 (8 a W. Rep. 295). 84 JURISDICTION. [ 75. citizen of the state. 1 Where an attachment is sued out at the com mencement of the proceedings, and levied upon the property of a non-resident defendant, this, with notice to the defendant, either by publication or by personal service outside of the state, will author- ize the court to proceed to a judgment and sale of the property, though the defendant fails to appear. It is due process of law. 2 75. Extra-territorial jurisdiction. There are classes of cases in which courts of chancery may. through action on persons over whom they have jurisdiction, indi- rectly affect title to property, real or personal, situated in a state not within their jurisdiction; e, g., suits for specific performance, enforcement of trusts, relief on ground of fraud, accounting in part- nership, etc. But Avhere the suit is strictly local, the subject-matter is specific property, and the relief when granted is such that it must act directly upon the subject-matter, and not upon the person of the defendant, the jurisdiction must be exercised in the state where the subject-matter is situated. Jurisdiction of a court of equity over the classes of cases affecting property situated without its local jurisdiction exists only when the relief sought is such that it may be given by the act of the person over whom the court ex- ercises jurisdiction. But if the right arises from the decree and execution of its process, then the court is directly acting upon the thing over which it has not jurisdiction, and in such case the rule is inoperative. One court cannot acquire power over property not within its territorial jurisdiction through the action of another court having jurisdiction where the property is ; for the jurisdiction of every court must depend on the law, and cannot rest on the friendly action of another court, which is sometimes termed "comity." 3 The courts of another state having jurisdiction of the parties may exercise jurisdiction in a suit for specific performance of a contract for the conveyance of land in Texas. The fact that they cannot enforce their decrees constitutes no objection to the exercise of ju- risdiction. If specific performance be decreed, an alternative judg- ment for money in lieu of the specific act contracted to be per- formed may be rendered. If the decree requires a conveyance of title to land in Texas, it is not effective unless the owner of the land makes the conveyance in person. 4 1 Gunter v. Armstrong, 2 Civ. App. 599 (21 S. W. Rep. 607): Foote v. Sevvall, 81 T. 659 (17 S. W. Rep. 373). 2 Thomson v. Shackleford, 6 Civ. App. 121 (24 S. W. Rep. 980); Stewart v. An- derson, 70 T. 588 (8 S. W. Rep. 295); Wilson v. Zeigler. 44 T. 657. 3 Tex. & Pac. Ry. Co. \Gay, 86 T. 571 (26 S. W. Rep. 599): Massie v. Watts, 6 Cranch, 148; Caldwell v. Carrington, 9 Pet, 97; Watkins v. Holman, 10 Pet. 26; Pennoyer v. Xeff, 95 U. S. 723; Pom. Eq. 1318. * Morris v. Hand, 70 T. 481 (8 S. W. Rep. 210); Moseby v. Burrow, 52 T. 396; Davis v. Roosevelt, 53 T. 305; Fryer v. Myers, 13 S. W. Rep. 1025. TC.j ji in>itii.ri<.x. S5 76. Local and transitory actions. It' tin,- cause of action U- one that niiirlit have arisen anywl it is transitory. If it could only have arisen in one place, it is local. r example, an action of trespass to the person, or for the con- vt-isioii of :<>,>ds, is transitory. Hut an action for flooding particu- lar lam Is is local, because the land can only be flooded where it is situated. For the most part local actions consist of those instituted for the recovery of real estate, or for injuries thereto, or for nients. That actions for trespass on lands in a foreign country not be sustained is settled law in England and in this country. If the cause of action should be in part transitory, it has been held that where the parties are non-residents and the cause of action originated beyond the limits of the state, such facts would justify the court in refusing to entertain jurisdiction. Jurisdiction in such cases is entertained upon principles of comity and not as a mutter of right. 1 AY hen the action is transitory, and is based on personal injuries, recognized as such by universal law, the suit may be brought win Ti- the aggressor is found, irrespective of the provisions of the local law, or whether there be any law at all in force at the place where the wrong was inflicted. AVhen the right of action exists only l>y reason of a statute, it can be enforced only in the state where the statute has an existence and where the injury occurred. The of action must have arisen and the remedy must bo pursued in the same state, and that must be the state where the law was enacted and has effect. 2 A right of action given by the laws of another stat> cannot be enforced by suit in a Texas court, when the right claimed is denied at common law, and is not secured by the consti- tution or statutes of this state. 3 The line between local and transitory actions in some of the de- cide" I cases seems shadowy, but in no case, it is hold, can a suit the purpose of which is to subject certain property, whether real or ,nal, to payment of a debt, or to have it placed in possession of i Morris v. Mo. Pac. Ry. Co., 78 T. 17 (14 S. W. Rep. 238); Cooley on Torts, 471 ; Railway (. o, v. Mill.-r. I'.i Midi. - Willis v. Ma Pao, Ry. Co.. 61 T. 432: A., T. . l? s . A railway oompauy chartered by the state cannot be sued in a court, l>y the surviving wife, for damages alleged to have resulted frm the neg. ligent killing of her husband by the company in the Indian Territory, \vli.-n no i ( -onii-i -rin- on tin- wit.- til-- ri^'ht to recover damages in such a case. >Tex. & Pao. Ry. Co. v. Richards, 68 T. 375. An action lies in this state for wrongfully killing a dog in another -tatc. St. I... A. v T. Hy. Co. v. Holden. 3 A pp. < : . The action in such case is authori/.fd at common law. Brunt v. K.-iubl", HO 111. Oil; Uhlmer v. Cronack. I'M M;i ry v. Hupps. 1" J.V.i; I'ark'-r v. Am-v. '-'7 Ala. 4 Willis v. Mo. Pac. Ry. Co., 61 T. 432; St L., I. M. & S. Ry. Co. v. McCormick, 71 T. MO. In Helt v. G., C. & S. F. Ry. Co., 4 Civ. App. 231 (22 a W. Rep. 1062), it was li'-l.l that ju-lii-ial knowledge is taken of the laws in force in the Indian Territory l>y virtue of the act of congress which adopted as such laws certain sections of Mansfield's Digest, and that it was the intention of congress to adopt, as a law for that territory, the . \rkan-as statute whieh gave a right of action for an injury resulting in death; that the Arkansas statute, in lorre in the Indian Territory, which gives a right of action for an injury resulting in death, is so unlike our statute that it will not here be enforced. Our statute Diving a right of action for an injury resulting in death does not confer the right in re- 88 JURISDICTION. [ 78. 78. Fraud on the jurisdiction. "Where the defendant believes and claims that the plaintiff has attempted a fraud on the jurisdiction, by fictitious allegations in his petition, made for the purpose of showing a case within the juris- diction of the court, over either the person or the subject-matter, and the attempted fraud is not apparent in the pleadings of the plaintiff, the facts showing the fraud must be alleged in the answer, as are other defenses, and submitted as an issue to the jury under appropriate instructions. 1 It is not sufficient to except ; and where an exception is made and overruled, the matter will not be noticed on appeal, there being no plea or evidence making the issue. 2 On such an issue it does not necessarily follow that because the plaintiff in his petition claimed damages in excess of the minimum jurisdic- tion of the court and recovered an amount less than such minimum, the amount claimed was fraudulently stated to secure jurisdiction. 3 In the absence of a plea and evidence sustaining it, the court may render judgment for any amount found to be due, however small. 4 As a general rule, in actions ex contractu the question of jurisdic- tion is determined by the amount of damages claimed in the peti- tion, and not by the amount recovered. But where it appears that the party claims damages not recoverable under the facts and cir- cumstances of the case, and that this was done for the purpose of conferring jurisdiction where it would not attach if the demand had been properly stated, the cause will be dismissed. However, if there be a reasonable doubt as to whether the damages claimed are or are not recoverable, and where the party might have had rea- sonable ground for believing that he would recover an amount suf- ficient to confer jurisdiction, the case will not be dismissed, and in all doubtful cases of this kind all presumptions will be in favor of jurisdiction. 5 Because a plaintiff swore to a sum less than that for spect to injuries which occur outside of this state; and it makes no difference that the wrong-doer was a corporation chartered by and domiciled in this state, or that the negligence causing the injury was a breach of a contract entered into in this state, or that the decedent was brought into this state while living and here died. U. & G. N. Ry. Co. v. Nicholson, 61 T. 550; Dwyer v. Bassett, 63 T. 274; Roper v. Brady, 80 T. 588 (16 S. W. Rep. 434); Bates v. Van Pelt, 1 Civ. App. 185 (20 S. W. Rep. 949); Seville v. Rush, 25 S. W. Rep. 1022; Carro v. Carro, 60 T. 395. 2 Roper v. Brady, 80 T. 588 (16 S. W. Rep. 434). 3 1. & G. N. Ry. Co. v. Nicholson, 61 T. 550. Bates v. Van Pelt, 1 Civ. App. 185 (20 S. W. Rep. 949). 8 Lay v. Blankenship, 2 U. C. 272. In an action by the defendant in attach- ment against the officer making the seizure, and the attachment creditor resid- ing in another county, and brought in the county where the seizure and sale were made, it was alleged in the petition that by collusion between the officer and the attaching creditors an excessive levy was made, and the goods sold in bulk, etc., for the purpose of injui'ing the defendant. These allegations prima facie gave jurisdiction over the non-resident defendant; but by plea alleging 78.] Jt KISDICTIOX. \\hich he had sued, and less than the jurisdiction of the court, was not conclusive that fraud had been committed on the juristl of the court, and it was not error to refuse to allow defendant to amend his answer setting up fraud on the jurisdiction. 1 In a case admitting of reasonable doubt as to whether the amount in controversy is within the jurisdiction of the court, and where the plaintiff miyht have had reasonable grounds to believe that he could >or a sum within the jurisdiction of the court, the case will not ; all intendments, in a doubtful case, are in favor of the jurisdiction.* that the allegations were fraudulently made forthe purpose of conferring juris- li.-tinii, followed by issue and proof of the fraudulent character of the allega- tions, the suit might be abated as against the creditor residing in another county. Blum v. Strong, 71 T. 331 (6 a W. Rep. 167). 1 Johnson v. Borden, 25 a W. Rep. 1131. 2 Gill v. Jackson, 3 App. C. C., 355; Dwyer v. Bassett, 63 T. 274; L & O. N. Ry. Co. v. Nicholson, 61 T. 530. Where fraud on the jurisdiction is pleaded, the test by which to determine the question is whether the averments, on their face showing jurisdiction, were yet fraudulently made; that is, in bad faith and for the purpose of deceiving. G., C. & S. F. Ry. Co. v. Wilm, 28 S. W. Rep. CHAPTEK IV. JURISDICTION AND POWERS OF THE SUPREME COURT AND COURTS OF CIVIL APPEALS. 79. Appellate jurisdiction of the su- preme court. 80. Findings of fact by courts of civil appeals. 81. Supreme court may look beyond the conclusions of fact. 82. Decisions on the validity of a stat- ute, or the construction and ap- plication of the constitution. 83. Cases in which a county court has jurisdiction. 84 Where a judgment of a court of civil appeals practically settles the case. 85. Conflicting decisions of courts of civil appeals. 86. Where a judge of a court of civil appeals dissents. 87. Cases of boundary. 83. Certified questions. 89. Questions certified by the court of its own motion. 90. Proceedings on certificate of dis- sent; the judgment. 91. Power of supreme court to issue writs. 92. Original jurisdiction of the su- preme court. 93. Jurisdiction of courts of civil ap- peals. 94 Jurisdiction of courts of civil ap- peals confined to civil cases. 93. Jurisdiction of courts of civil ap- peals of cases appealed from justices' courts. 96. Transfer of cases from one court of civil appeals to another. 97. Quorum in supreme court and court of civil appeals. 98. Power of court of civil appeals to issue writs. 99. Sessions of the supreme court. 100. Sessions of the courts of civil ap- peals. 101. Supreme court may make and en- force rules of procedure. 102. Contempt of court. 79. Appellate jurisdiction of tho suproms court. The supreme court has appellate jurisdiction only, except as herein specified, which is co-extensive with the limits of the state. Its appellate jurisdiction extends to questions of law arising in cases of which the courts of civil appeals have appellate jurisdiction, under such restrictions and regulations as the legislature may pre- scribe. 1 It is provided by statute that the supreme court shall have appellate jurisdiction co-extensive with the limits of the state, "which shall extend to questions of law arising in all civil cases of which the courts of civil appeals have appellate, but not final, jurisdiction." 2 Cases are carried up to the supreme court by writs of error upon 1 Const., art. V, a See 88, infra. 2 R. S. 940. 79.] SUPREME COURT AND COUKTS OF CIVIL APPEALS. 91 final judgment, and not on judgments reversing and remanding -'s, except in the following cases, to wit : (1) Where the state is a party or where the railroad commission- ers are parties. (2) Cases which involve the construction and application of the itution of the United States or of the state of Texas, or of an act of congress. (3) < ;i it'll involve the validity of a statute of the state. Cases involving the title to a state office. (5) Cases in which a court of civil appeals overrules its own de- ns or the decision of another court of civil appeals, or of the supreme court. (6) Cases in which the judges of any court of civil appeals may disagree. Cases in which any two of the courts of civil appeals may hold differently on the same question of law. - When the judgment of the court of civil appeals reversing a judgment practically settles the case, and this fact is shown in the petition for writ of error, and the attorneys for petitioners shall state that the decision of the court of civil appeals practically set- tles the case, in which case, if the supreme court affirms the decis- ion of the court of civil appeals, it shall also render final judgment accordingly. 1 The judgments of the courts of civil appeals are conclusive in all upon the facts of the case; and a judgment of such courts is conclusive on fact and law in the following cases, and a writ of error will not be allowed thereto from the supreme court, to wit: (1) Any civil case appealed from a county court or from a dis- trict court when under the constitution a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving the revenue laws of the state or the validity of a statute. All cases of boundary. (3) All cases of slander and divorce. All cases of contested elections of every character other than officers, except where the validity of a statute is atta by the derision. It is further provided that the judgments of said courts of civil appeal- >hall be final in all appeals from interlocutory orders ap- pointing receivers or trustees, or such other interlocutory appeals as may be allowed by law, and the judgment of said court shall be final in all other cases as to law and facts except where appellate 1 R S. 941. as amended by acta of 1895, p. 145. The amendment <-mi-i-ts of the provision in the eighth paragraph, beginning "and the attorneys for petitioners shall state," etc. 92 JURISDICTION. [ 80. jurisdiction is given to the supreme court and not made final in said courts of civil appeals. 1 It was not the intention, by the provisions of amended section 3 of article 5 of the constitution, to confer appellate jurisdiction on the supreme court over questions of law in all cases arising in a court of civil appeals, and it is held that the legislature in restricting the jurisdiction to certain cases, in making the judgments of the courts of civil appeals conclusive in certain specified cases, did not exceed its authority. 3 A writ of error lies only to a final judg- ment. 3 It will lie to a judgment of dismissal. 4 80. Findings of fact. The judgments of the courts of civil appeals are conclusive in all cases upon the facts of the caso, and it is held that findings by the court of civil appeals as to locality of lines of surveys, and whether surveys are adjoining or are detached, are findings of fact. Such decision cannot be revised in the supreme court. 5 The supreme court has no jurisdiction where the only question is whether the verdict in an action for personal injuries is excessive. 6 The trial judge in overruling a motion for a new trial expressed a doubt as to the sufficienc^y of the evidence, and it was assigned that for that reason it was error not to grant the motion. In determin- ing the question raised by the assignment upon the court's ruling in this particular, the court of civil appeals considered only the evi- dence as shown by the statement of facts, and not the reasons given by the judge for his ruling. It was held that the supreme court had no jurisdiction to revise the judgment of the court of civil ap- peals. 7 The supreme court is bound by the facts found by the court of civil appeals, at least when the evidence is conflicting. It is the province of the jury first to pass upon the facts, and the court of civil appeals is vested with authority to review their finding thereon ; but the supreme court has no such authority, if there be any evi- dence to sustain the conclusions of the court of civil appeals. 8 The refusal of the court of civil appeals to dismiss a writ of error for want of diligence in obtaining service involves a finding of facts, and will not be revised. 9 On application for a writ of error it appeared that no application 1 R. 8. 996. 2 Maddox v. Covington, 87 T. 454 (29 S. W. Rep. 463). s First Nat. Bank of Montague v. Robertson, 85 T. 578 (22 S. W. Rep. 936). Frank v, Tatum, 87 T. 204 (25 S. W. Rep. 409). R, S. 996; Schley v. Blum, 85 T. 551 (22 S. W. Rep. 667). sDillingham v. Richards, 87 T, 247 (28 S, W. Rep. 272). 'Mex. Cent. Ry, Co, v. Lauricella, 87 T. 277 (28 S. W. Rep, 277). 8 Tex. & N. O. Ry. Co. v, Echols, 87 T, 339 (28 S. W. Rep. 517); T. & P. Ry. Co. v. Levine, 87 T. 437 (29 S. W, Rep. 466), 9 First Nat, Bank of Montague v, Robertson, 85 T, 578 (22 S, W, Rep, 956), SO,] : I:KMK COIT.T AND COURTS OF CIVIL APPEALS. 93 the court of civil appeals for conclusions of fact or la\v, other than what was contained in the opinion of the court. Tliis \vas to the effect that there was evidence, not stated, which .ned the finding of the district court as to the true locality <>f the northwest corner of a grant of school land made to a county. i the vital question in the case. Regarding this statement tindinL r l>y the court, the supreme court had no jurisdiction. t of the decision of the court of civil appeals was that the finding of the trial court on the contested question of fact was cor- and the opinion showed that the ruling was made on testimony other than that on which the applicants for the writ insisted that the question of fact should have been differently decided. 1 In an action for damages for personal injury, a proposition under an assignment of error was that there was no evidence that the plaintiff was ignorant of the dangers of the employment, and inex- perienced, and that defendant knew that he was inexperienced. The court of civil appeals found that he was inexperienced and iirnrant of the dangers of the employment, and that defendant knew these facts. There was no error in this that the supreme court could revise. .Under another assignment the proposition was .lows: "There was no evidence before the jury that the air- brakes were in any respect defective. It is a reversible error for the court to charge upon an issue in support of which there is no evidence, as it creates in the minds of the jury an impression that, in the opinion of the court, there is sufficient evidence to warrant a finding upon such issue/' The court of civil appeals made no finding upon this issue in its conclusions of fact, but in the conclusions of law occurs this state- ment: "It is contended that there was no evidence that the air- brakes were in any respect defective. The evidence bearing upon that issue was, in our opinion, extremely meager. There were, however, circumstances indicating that the air-brakes were defect- These circumstances consist mainly in the fact that they were not sufficient to hold the detached cars, though the latter were on ground apparently level, or nearly so, and that the air-brake holding the baggage car, on which the work was being done, was sufficient to keep it stationary." The supreme held that these circumstances lish only the fact that the cars moved, but do not prove the a of their moving; that they constitute proof that the air- brakes did not hold the cars on that occasion, but do not prove that this was caused by a defect in the brakes, which may have been rfectly set, or from other causes may have failed on this occa- sion ; and that the district court erred in submitting to the jury the- of defective brakes, on the state of the evidence, and that the 1 Mcade v. Land Co,, 85 T. 513 (22 & W. Rep. 514). 94 JURISDICTION. [ 81. court of civil appeals should have reversed the judgment for that error. 1 81. Court may look beyond the conclusions of fact. The provision of law making the judgments of the courts of civil appeals conclusive upon the facts does not prohibit the supreme court from looking beyond the conclusions of fact in determining a case. "What is meant by the provision is, that the decision of the court of civil appeals upon questions of fact questions upon which there may be a conflict in the evidence shall be final, and not the subject of review on writ of error. Article 967 of the Revised Stat- utes provides that the supreme court, upon the hearing of a case brought up by a writ of error, " may require at any time the orig- inal transcript to be sent up;" and in pursuance of that authority, the court adopted rule 5, which directed that the transcript should be transmitted in every case in which a writ of error was granted. (The provision is now found in amended rule 1 of the supreme court rules.) If it was intended that the supreme court should decide the case upon the conclusions of law and fact filed in the court of civil appeals, the power conferred by the provision in the statute cited is nugatory. The purpose was to empower the court, not to revise the decision of the court of civil appeals upon any disputed ques- tion of fact, but to enable it to decide all issues presented for its determination, in the light of the pleadings and of every fact estab- lished either by the undisputed evidence or the conclusions of the appellate court, upon the conflicting evidence. The supreme court presents the matter thus : " It is not to be presumed that a court of civil appeals will intentionally avoid in its statement of the case any fact material to its determination. But in the view they take of the law, a fact may appear to them imrna- 'terial, which in the opinion of this court may have an important bearing upon the determination of the cause. If there should be a conflict in the testimony as to the question whether a certain thing be black or white, and the court of civil appeals finds that it was white, this court is bound by that finding. But if the undisputed evidence show that it was black, and that court, not being impressed with the materiality of the fact, should inadvertently state that it was white, it would be an unreasonable rule that would withhold from this court the power to correct the error and decide according to the evidence, in the event it should deem the fact material to a proper disposition of the cause." 2 1 ., G & 8. F. Ry. Co. v. Kizziah, 86 T. 81 (23 a W. Rep. 578). The supreme court cannot determine a question of fact which ought to have been decided by the court of civil appeals, but will remand the case to tliat court to have the question determined. Cruger v. McCracken. 87 T. 584 (30 S. W. Rep. 537). 2 Clarendon Land Inv. Co. v. McClelland, 86 T. 179 (23 S. W. Rep. 576, 1100). 82.] SUPREME OOUKT AND COURTS L>F CIVIL AIM'KALS. The supreme court will look to the uncontroverted testimony, as shown in the record, for a full understanding of the question to be derided, u li.-re the court of civil appeals omits to present in its find- ings some of the facts that so appear. 1 ' But the correctness of the conclusions of the court of civil appeals upon the facts will not be inquired into, when it is not claimed that there is no evidence to support tin- findings. 2 If there be no evidence to support a finding. the finding may be disregarded; but where there is only a conflict idence the findings are conclusive. "Where it is asserted in the application fora writ of error that there was no evidence to sustain of the material findings, but the application does not attempt to set out the evidence, credence must be given to the findings made. In such case the presumption is that the evidence sustains the finding, and an application seeking to rebut this must show that there was no evidence, or rather what the evidence was.* 82. Decision on the validity of a statute, or the construction and application of the constitution. A writ of error will lie to a judgment of a court of civil appeals which reverses and remands a cause, when the case involves the construction and application of the constitution of the United States or of the state of Texas, or of an act of congress, or the validity of a statute of the state. 4 A suit involving the construction and application of a statute does not involve the validity of such statute.* A question whether two judges of a court of civil appeals constitute a lawful court when the other is disqualified involves the construction of the constitution of the state, and a writ of error will lie to revise a judgment reversing and remanding the cause. It was said to be a difficult question to determine whether the legislature intended to confer jurisdiction upon the supreme court when the constitutional question does not arise on the merits of the case, but grows out of some matter of procedure in the court of civil appeals. But it is held that, from the commencement of every suit until its final termination, ques- tions of procedure may arise which materially affect the results of the suit, but which are in no way involved in the merits of the case; that when such a question has been erroneously decided in the trial court the decision may be revised in the court of civil appeals, and the error may demand a reversal of the judgment; if, however, that court should affirm the judgment, notwithstanding such error, the I G.. H. & W. Ry. Ca v. Lacy, 86 T. 244 (24 a W. Rep. 260). 'Sanborn v. Murphy. 80 T. 487 (25 S. W. Rep. 610). Bauraan v. Jaffray, 86 T. 017 (26 S. W. Rep. 894). R.a941. M., K. & T. Ry. Co. v. Trinity County Lumber Co, 85 T. IQ'> '. Rep. 96 JURISDICTION. [ 83. supreme court, in a case in which the judgment is not made final by statute, would have jurisdiction to revise the error and to render such judgment as the court of civil appeals ought to have rendered. 1 AVhere a judge of the court of civil appeals does not sit in a case, a question as to his disqualification does not give jurisdiction to the supreme court by writ of error; the validity of the action of the other two judges does not depend upon his sitting or refusing to sit. 2 The supreme court has no jurisdiction to revise a judgment of the court of civil appeals affirming a judgment of a county court, where the case is one involving the construction and application of a stat- ute, but not its validity. 3 83. Cases in whioh a county court has jurisdiction. Under articles 940 and 998 of the Revised Statutes, a writ of error does not lie to the court of civil appeals in a case for debt, -where the amount in controversy was within the constitutional jurisdic- tion of the county court, although suit was brought in the district court having jurisdiction in the county in such cases. The rule in article 996, subdivision 3, is that the judgment of the courts of civil appeals is conclusive in all cases upon the facts of the case, and a judgment of such courts is conclusive on facts and law in any civil case appealed from a county court or from a district court when under the constitution a county court would have had original or appellate jurisdiction to try it, except, etc. This controls the ex- ception in article 941 of the Revised Statutes, in the grant to the su- preme court of jurisdiction where the judgment in the court belo\v may have been reversed and the cause remanded by a court of civil appeals, in a case which involves the construction of an act of con- gress. That is, a judgment of a court of civil appeals which reverses and remands a cause is final in a case involving the con- struction of an act of congress, where the amount involved was within the jurisdiction of the county courts. Suit by a railway company for 283.03 for freight was brought in the district court of Trinity county by virtue of a statute which gives to that court in that county the jurisdiction which is conferred by the constitu- tion upon the county courts. In such case the judgment of the court of civil appeals in reversing the judgment of the trial court and rendering final judgment for the full amount claimed was final and conclusive, and over such judgment the supreme court has no control. iCity of Austin v. Nalle, 85 T. 520 (22 S. W. Rep. 668, 960). 2 Holt v. Maverick, 86 T. 457 (25 S. W. Rep. 607). 3 Matthews Lumber Co. v. Harden, 87 T. 639 (30 S. W. Rep. 898). The supreme court took jurisdiction of a case in which was involved the validity of article 826 of the Revised Statutes as applied to interstate shipments of live-stock. G., C. & S. F. Ry. Co. v. Gray, 87 T. 312 (28 S. W. Rep. 280). 83.] I:T AND COURTS OF CIVIL \\-\-\ 97 The statutes lierv under discussion provide (1 ) that writs of error shall issue to the courts of civil appeals upon linal judgments, but not on judgments reversing and remanding a cause, except in cer- tain enumerated cases. (2) That the judgments of the courts of civil appeals -diall In' conclusive in all cases upon the facts of the That their judgments shall be conclusive on facts and law iu certain specified cases. 1 It seems to folio w, therefore, and t ho decision appears to be to that effect, that if the case is one in which the judgment is made conclusive on facts and law, a writ of error will not lie though the case is one in which it is provided that the writ may lie from a judgment reversing and remanding the cause. Thus, it' the case be one involving the validity of a statute of tho state, a writ of error may lie to revise a judgment reversing and remanding the cause, unless it be a case of boundary, or of slander, r divorce, or any other character of case in which it is declared that a writ of error shall not be allowed. - Where a case was tried below in the district court, the applica- tion for a writ of error must show that it was brought to recover a sum beyond the jurisdiction of the county court; otherwise the petition will be dismissed. 3 AVhere a case is tried in the district court which might have been brought in the county court, if it is not a case involving the revenue laws of the state or the validity of a statute, the judgment of the court of civil appeals is final. Where the same property is attached in a justice's court and in a county court, the latter court, under the power to issue writs to protect its jurisdiction, has power to issue an injunction to enjoin ;i sale, of the property in the justice's court, the attachment in the latter being alleged to be void; and where the injunction in such a \B sued out in a district court, the supreme court has no juris- diction by writ of error to the court of civil appeals. 1 The county court has no jurisdiction in a proceeding for the trial of the riirht of property where the amount in controversy equals .r ds s:>oo, and the supreme court has jurisdiction by writ of >r to the court of civil appeals. 5 A proceeding by information in the nature of quo warrnnt has for its object the contest of an election, and the supreme court has no jurisdiction where the validity of a statute is not involved. 6 1 See g 79, supra. ' M., K. & T. Ry. Co. v. Trinity County Lumber Co., 85 T. 405 (31 & W. Rep. . C. & S. F. Ry. Co. v. Buford, 85 T. 430 (21 S. W. Rep. 678). 4 M ly v. M,-Kiimii,,!i. 87 T. 260 (2* S. \V. Kep. 279). W.-I/..-1 v. Simon. 91 I 3, \V. K, r . . 6 State v. Thompson, 30 S. W. Kep. 1040. 7 98 JURISDICTION. [ S4. $ 84. Where a judgment of a court of civil appeals practically set- tles the case. A judgment of reversal by a court of civil appeals which prac- tically settles the case may be reviewed by the supreme court on writ of error. 1 Judgment against a railway company was rendered in the dis- trict court for negligently causing the death of a person. On ap- peal, the court of civil appeals reversed and remanded the case, on the ground that the facts proved did not entitle the plaintiffs to a judgment, and it was held that the supreme court had no juris- diction. What the facts might be shown to be on another trial the court could have no knowledge. The petition for writ of error did not show or suggest that no proof other than that made on the former trial could be produced on another. In such state of the- record it was not shown that the judgment of the court of civil ap- peals reversing the case practically settled the case. 2 "Where one defendant in trespass to try title claims the whole tract of land in controversy, and another defendant claims a distinct portion in his own right, a judgment of the court of civil appeals^ finding that the title of the defendant claiming the distinct portion passed by a certain sale, and which reverses and remands the cause r does not settle the case. In such case the claims of the defendants are in conflict and are not severable, and the decision does not set- tle the controversy. 8 The law does not authorize the writ where the action of the court of civil appeals was upon the giving and the refusing of instructions, or on the exclusion of testimony, where it appears that the facts upon which the charges were based were controverted, or when the evidence rejected was corroborative, and not likely to control the disposition of the case upon another trial. 4 Where the court of civil appeals reverses and remands a judgment of the district court on the ground of an improper charge by the trial judge, the propri- ety of such charge depending on the state of the evidence, the supreme court, on application for writ of error, cannot assume that there will or will not be evidence on another trial to make such charge improper. Such action by the court of civil appeals cannot be said to practically settle the case. 8 In a suit for land, on appeal to the court of civil appeals both parties united in asking the court to construe a certain instrument of conveyance, and the court reversed and remanded the case for IRS. 941. 2G., C. & S. F. Ry. Co. v. Riordan, 85 T. 511 (22 S. W. Rep. 514). s Schmidt v. Huff, 28 S. W. Rep. 1055. 4 Smith v. Wilson, 85 T. 402 (20 S. W. Rep. 587). *Sanger v. Henderson, 85 T. 404 (20 S. W. Rep. 915). 85.] SUPREME OOUKT AXD COURTS OF CIVIL APPEALS. ' 99 the purpose of taking testimony as to the intent of the maker of the instrument. It was held that this did not affect the merits of the case nor settle the matter in controversy. 1 So where an appeal i.s taken from a judgment of the district court sustaining a demurrer and dismissing the case, nothing is settled, for the purposes of a writ of error, by a judgment of the court of civil appeals reversing and remanding the cause. 2 A ruling of the court of civil appeals, that the action was barred before the filing of an amendment which set up a new cause of action, practically settled the case and gave the supreme court jurisdiction. 1 85. Conflicting decisions. "Where the ruling of a court of civil appeals on the subject of con- tributory negligence as a defense is in conflict with a judgment of a court of civil appeals of another supreme judicial district, the su- preme court has jurisdiction to revise notwithstanding the judgment of the lower court was reversed and remanded. 4 "When a decision of a court of civil appeals is in conflict with other decisions of the court, or with a decision of the supreme court or of another court of civil appeals, the supreme court has jurisdiction to grant a writ of error, although the judgment be a reversal of the trial court. But a writ of error will not be issued unless the court believes that there was error in the result of the decision of the court of civil ap- peals. 1 "Where a decision of a court of civil appeals is in conflict with a proposition in an opinion of the supreme court, the announcement of which was not necessary to a decision of the case, there is no conflict of decision, and the supreme court is without jurisdiction. 8 "Where a writ of error is applied for on the ground that there is a conflict of derision, the supreme court will examine that point, and if it is of the opinion that there is no conflict the writ will be re- i. The question on such an application is, it seems, whether is a conflict, not whether the ruling of the court of civil ap- peals is right. 7 The supreme court has no jurisdiction to grant a writ of error on the ground that the decision complained of is in conflict with a -ion of another court of civil appeals, where it has already, in a similar case, determined the point in controversy. It is held that r;al]:ii;l,.-r v. M-IIu-Ji. V) T. 440 (21 S. W. Rep. 1033). I*. A. & T. Ry. Co. v. Bataell, 86 T. l''J J 1 s. W. Rep. 504). Lynch v. Ortlieb, 30 S. W. Rep. 545 (87 T. 590). < McDonald v. I. & G. N. Ry. Co., 86 T. 1 (22 & W. Rep. 939); R S. 94L 5 Haas v. Kraus, 86 T. >'). McCown v. Terrell, H7 T. 47<> .'.' > \V. Rep. 467). hani.-s- Nat Bank v. Barker, 29 a W. Rep. 284; Barker v. Merchants' Nat Bank, 87 T. 435 (29 a W. Rep. 234> 100 JURISDICTION. [ 86, 87. the provisions of the statute on the subject were inserted for the purpose of enabling the supreme court, upon the first opportunity, to settle questions of law upon which conflicting opinions were held bv any of the courts having appellate jurisdiction, so far, at least, as its opinions could settle such questions, but that it was not the intentioii to give to the supreme court jurisdiction in such cases when it has already determined the point. 1 86. Where a judge of the court of civil appeals dissents. The supreme court has no jurisdiction over cases in a court of civil appeals of which that court has final jurisdiction. The jurisdic- tion arising from a dissent by one of the judges of the court of civil appeals extends only to cases over which the jurisdiction is not final. A case was tried in a justice court. On appeal it was taken to the county court, and from that court it reached the court of civil appeals and was there affirmed. One of the judges dissented upon an issue of fact. On application for writ of error, and to compel the judges of the court of civil appeals to certify the cause to the supreme court, it was held that the supreme court had no jurisdiction, for the reasons that the court of civil appeals had final jurisdiction, and because the contest upon which the dissent existed was upon an issue of fact. 2 87. Cases of boundary. A writ of error will not lie to review a judgment of a court of civil appeals in a case of boundary. 3 An action was brought to compel a surveyor to make a survey and return field-notes of land, claimed by plaintiff to be vacant, and on which he had filed land certificates. The adverse claimant was made defendant, and his defense was that certain surveys owned by him were adjacent to each other, and covered the land filed upon. The plaintiff insisted that the surveys owned by the defendant were not adjoining, and he claimed that the strip between them was vacant and subject to appropriation. In such suit the title to the land was involved, and the determination of the lines of the surveys owned by the defendant determined the case; the litigation presented a case of boundary, and the supreme court had no jurisdiction. Where the right of parties to an action involving the title to land depends solely on location, which must be deter- mined by the boundaries of different tracts of land, then we have Sturgis Nat. Bank v. Smyth, 87 T. 649 (30 S. W. Rep. 898). 2 G., C. & S. F. Ey. Co. v. Raraey, 86 T. 455 (25 S. W. Rep. 406). The statute provides that the supreme court may review a judgment of a court of civil ap- peals reversing and remanding a cause where the judges of the latter court dis- agree (R. S. 941); also that the judgments of the courts of civil appeals are con- clusive in certain cases. R. S. 996. See 79, supra. 3 R. S. 996. 88.] SUPREME COURT AXD COURTS OF CIVIL APPEALS. 1"! wli.it the law design,'- M of boundary. 1 The supreme c-urt will not issue a inpellate jurisdiction of the supreme court shall extend to t|ue>- tions of law arising in the cases in the courts of civil appeals in, which the judges of any court of civil appeals may di- .'the several courts of civil appeals may hold differently <>n the same question of law, or where a statute of the state is held 1."' The statutory provisions are as follows: "When any one of said courts of civil appeals shall in any cause or proceeding render a de- cision in which any one of the judges therein sitting shall dissent as to any conclusions of law material to the decision of the case, said judge shall enter the grounds of his dissent of record, and the said court of civil appeals shall, upon motion of the party to the cause, or on its own motion, certify the point or points of dissent to the supreme court. 4 " Whenever, in any case pending before the court of civil apj> there should arise an issue of law which said court should deem it advisable to present to the supreme court for adjudication, it shall be the duty of the presiding judge of said court to certify the very question to be decided by the supreme court, and during the pend- ency of the decision by the supreme court the cause in which the issue is raised shall be retained for final adjudication in accordance with the decision of the supreme court upon the issue submitted." ^ It is probable that the construction of the above sections js not yet fully settled. It cannot be contended, of course, that any ques- tion cap be cert i tied except a question of law, but the qu< 1 Schley v. Blum, 85 T. W. Rep. ; * Maddox v. Covington, 87 T. 454 (29 S. W. Rep. 465). 'Const, art. V, a * R S. 1040. *R S. 1043. This section as originally enacted read as follows: "Whenever, in any case pending before the court of civil appeals. <>f which said court of civil apjM-als has final jurisdiction, there should arise an issue of la\v that i< . or presenting a question of first iinir->-iu t<> the court, ami the court of civil appeals hould deem it advisiM'- to pn---rit tin- i--ui- to the supreme court for adjudication, it shall IK.' the duty of the presiding judge of -\\.\ court tify the very <{u*-.tion to be decided to the -upreme court, and during th- en, -v of the decision by the supreme court the cause in which the ixsne is raised shall be retained for final adjudic.it ion in accordance with the deciMoii of the supreme court upon the i^su- mbmifcfc ~ . Stat, art 1088; Civil Code IW. art. luj::. JURISDICTION. [ 88. arises, at what stage of the case may the question be certified, and whether any question of law, in any and all cases, may be certified. The statutory provision is that whenever in any case pending be- fore the court of civil appeals, etc., and that pending the decision of the question certified the cause shall be retained for final adjudi- cation. In one case the supreme court answered the questions cer- tified without noticing the fact that no judgment, interlocutory or final, had been entered in the court of civil appeals. Chief Justice >tayton notices the point in a dissenting opinion, and holds thau while it is evident that the legislature intended to confer the juris- diction in such cases, the intention is not manifest in the provision of the constitution; that such a construction would make the juris- diction of the two courts concurrent, which was never intended. 1 The first paragraph of the syllabus to the case above considered is not, as it seems to the writer, authorized by anything found either in the opinion of the court or in the dissenting opinion. It reads : "This court will take jurisdiction of questions certified to it as novel, etc., by the court of civil appeals, in cases in which it has final jurisdiction." This point was raised in a later case, after the amendment of 1893, and it is held that the jurisdiction exists only in cases in which the judgments of the courts of civil appeals are not made final and conclusive. That the law authorizing certified ques- tions must be construed in connection with the law prescribing the appellate jurisdiction of the supreme court, and that the contention that the former law applies to every case or proceeding in which a dissent occurs, whether it be a case over which jurisdiction is given to the supreme court or not, cannot be sustained. 2 It will be no- ticed that the act of 1892, quoted in note to 88, supra, did provide that questions might be certified in cases over which the court of civil appeals had final jurisdiction. The law furnishes simply a means whereby parties may bring questions of law before the supreme court otherwise than ,by writ of error; but no litigant is compelled thus to bring before that court any question. A party not only may but ought to refrain from bringing through this means questions of law on which is dissent, if there be other questions vital to his rights which he cannot have thus submitted to the supreme court. If a court of civil appeals, on its own motion, should certify a question, it is clear that a litigant should not be thus cut off from the right to prosecute a writ of error in the case. But if a party to a cause, after a judgment has been entered in the court of civil appeals, to Avhich a writ of error would lie, applies for and obtains a certificate on a question on 1 Darnell v. Lyon, 85 T. 455 (22 S. W. Rep. 304, 960). 2Herf v. James, 86 T. 230 (24 S. W. Rep. 396); G., C. & S. F. Ry. Co. v. Rumey, 86 T. 455 (25 S. W. Rep. 406). SO.] 8UPI: UT AM> (> RTS OF CIVIL APPEALS. 103 which one of the judges dissented, he cannot afterwards have a writ of error t iwise other questions which were not revisable on the certificate of dissent. lie waives his right to the writ by apply- for the certificate. 1 The supreme court has no power to revise any question on which the judges of the court of civil appeals concur when the case is Jit up on certificate of dissent as to other questions. Its juris- n only extends to the question or questions upon which there ^ent. The certificate of dissent brings the matter before the court for a full hearing from both sides upon the questions n-concurrence, without the intervention of a writ of error. 2 Where the action of the supreme court upon one of the certified ions practically settles the litigation, other questions certiiied will not be considered. When questions of law are certified for initiation in the first instance, the court has no power to pass upon any questions except those submitted. Nor can it inquire into their bearing upon the ultimate decision of the case. 3 In order to authorize the certificate of dissent, the question upon which the jud<_:< ee must be material to the decision of the case. If not material, the supreme court acquires no jurisdiction of the appeal upon such certificate. 4 ?' 89. Questions certified by the court of its own motion. The statute prescribes that " whenever in any case pending be- fore the court of civil appeals there should arise an issue of law which said court should deem it advisable to present to the supreme court for adjudication, it shall be the duty of said court to certify the very question to be decided to the supreme court," etc. The statutory rule is disregarded when the matter certified is whether a demurrer was properly sustained in the trial court in a case in- volving many issues. Whether a petition is sufficient to maintain an action is a question of law; but as is frequently the case, the -ion of that question involves the decision of many and difficult questions of law, and in order that the time of the supreme court may not be taken up in deciding questions about which a court of civil appeals may have no doubt, and desires no decision, tliev,- courts are required to certify to make certain or definite the 'ii to be decided. It was never intended that ti pretne court on certificate should determine what questions of law involved in a cause and then decide them. To decide upon questions involving the entire record, jurisdiction was conferred on i Campbell v. Wiggins, 85 T. r nupbell v. Wiggins. *~> T. 424 (21 .s. \V. K-p. .VJ9). 8 Darnell v. Ly ...... 83 T :<>4. 960). 'Mexia v. L<-wi>. -7 T. C .i7). 104: JURISDICTION. [ 89, courts of civil appeals, and neither the statute nor the constitution contemplates the exercise of such appellate jurisdiction by the su- preme court so long as the case remains undecided by the court of civil appeals. The numerous questions in 'which certified questions were discussed by the supreme court of the United States under laws authorizing such jurisdiction are reviewed, and the practice of that court followed. 1 It was never contemplated that practically all of a complicated case should be certified. A statement of the pleadings, and of numerous questions arising, with questions involv- ing matters of law and of fact; of pleadings, of evidence, of con- struction of clauses in an insurance policy, of mode of impaneling jury, etc., cannot be considered a compliance with the statute. The United States statutes formerly in force were as broad as that now in force in this state, and under those statutes such certificates have been constantly refused consideration. It is not held that sev- eral questions of law may not be certified when essential to the de- cision of a case ; but it is to be understood that none other than purely questions of law can be considered ; that these must be clearly stated; and that in no case does the statute contemplate that an en- tire case, with questions controlling and dependent, may in effect be thus transferred to the supreme court for decision. 2 The supreme court will only respond to such certified questions in the case as will determine the litigation. That other questions certified in a case are of importance in other cases, and such fact appearing by certificate, will not alter the rule. 3 A court of civil appeals certified the question : " Under the plead- ings and evidence as stated, did the court err in instructing the jury to return a verdict for defendant?" A synopsis of the pleadings, and of the evidence accompanied the question. It was held that this was the whole case, on law and fact, and could not be consid- ered. Where a bill of exceptions to the ruling of the trial court upon the evidence was certified, with a question as to the correct- ness of the ruling of the trial court upon it, it was held that the question was one of mixed law and fact, and could not be considered, even if all the testimony in the case was certified. So where five charges were set out as having been asked by the plaintiff and re- fused by the trial judge, with the question, "Do any of the special charges requested announce correct propositions of law in this case ; and if so, which of them should have been given in charge to the jury?" it was held that this did not state " the very question to be decided by the supreme court," and could not be considered. 4 1 Waco Water & Light Co. v. City of Waco, 86 T. 661 (2C S. W. Rep. 943): Union Cent. Life Ins. Co. v. Chowning, 86 T. 654 (26 S. W. Rep. 982). 2 Kelly-Goodfellow Shoe Co. v. Liberty Ins. Co., 87 T. 112 (26 S. W. Rep. 1063). 3Moser v. Tucker, 87 T. 94 (26 S. W. Rep. 1044). Laughlin v. Fidelity Mut. Ins. Co., 87 T. 115 (26 S. W. Rep. 1064). 90,91.] SUPREME COURT AND COURTS OF CIVIL APPEALS. 1 "" A certificate submitted whether charges were properly refusal, not showing that the facts raised the issue affected by the cli.. and the suprem-.' court refused to determine upon the propii- or giving such instructions. 1 ? 00. Proceedings on certificate of dissent; the judgment. When a certificate of dissent is sent up by any court of civil ap- . it is the duty of the clerk to send up a certified copy of the conclusions of fact and law as found by the court, and the <|iies- of law ujxm which there is a division, and the original tran- script, if so ordered by the supreme court, and thereupon, if the supivme court so direct, the clerk must set down the same for ariru- ment and notify the attorneys of record. After the question is decide.l the supreme court must immediately notify the court of civil appeals of their decision, which must be entered as the judg- ment of the court of civil appeal 1 1 . Power of supreme court to issue writs. The constitution provides that "the supreme court and the jus- thereof shall have power to issue writs of Jml. //* > //>'< and all writs necessary to enforce the jurisdiction of said court; and in tcnn time or vacation may issue writs of y/ //./////t the governor of the state. 4 The said court, or any judge thereof in vacation, may issue the writ of iiniii'Iin.'iiia to compel a judge of the district court to pro- ce,-d to trial and judgment in a cause, agreeably to the principles and usages of law, returnable to the supivme court on or before the first day of the term, or during the session of the >ame, or before any judge of the said court, as the nature of the case may renpreme court to is>iie writs of /,- //.// > and muml'innix in such cases as maybe specified, except as against the governor of the state. The supreme court lias power, upon atlidavit or otherwise, as by the court may he determined, to ascertain such matters of fact as may lie neceary to the proper exercise of its jurisdiction. 1 The supreme court has original jurisdiction of proceedings for the removal of district judges for incompetency, otlicial misconduct or neglect of dm original jurisdiction properly belonging to courts of equity :ed in the district court. The supreme court possesses no such powers. Its jurisdiction is appellate, and hence, when the aid of equity is sought to afford relief to which a party is entitled airainst its judgments, the district court and not the supreme court is the proper forum in which to institute the proceedings. 3 In a suit in which it is not necessary either to allege or prove the value of the things in controversy, it is proper for an appellate court to hear affidavits as to its value, in order to determine the question of its jurisdiction. So held in a case which was brought in the district court to recover upon a note for $500 and attorney's fees, and to foreclose a lien upon personal property, the value of which did not appear from the transcript, and there was nothing to show whether it was a case of which the county court had jurisdic- tion. 4 The statute passed to carry into force the constitutional provision standing at the head of this section confers power, either in term time or vacation, to issue writs of quo warranto or mandamus against any district judge or officer of the state government, except the governor of the state. 5 The act annuls, of course, so far as the supreme court is concerned, the fourth section of the act of 1881, denying authority to any court to issue any mandatory or compul- sory process a-:ain>t any officer of the executive department. 8 It is held that the statute sufficiently specifies the cases in which the writs may iue; that the constitution has application only to in which writs of n> warranto or maml'iinn* may be the proper or necessarv pro< ess, and the statute attempts to give jurisdiction in those classes of cases only, and restricts this by designating classes of persons against whom only such writs may run and such juris- diction be exercised. 7 It was not intended to confer jurisdiction to Const, art. V, 3; R S. 945. * Const., nit. XV. < 0; R a 3528-3525. Stapleton v. \Vil,-,,\. 2 Civ. App. 542 (21 S. W. Rep. " 4 Austin R E. & A. Co. v. Bahn, 87 T. 582 (29 S. W. Rep. 646). R a 946. R&4861. 'Pickle v. McCall, 86 T. 212 (24 a W. Rep. 265). 108 JURISDICTION. [ 93. try a case on mandamus which involves the determination of doubt- ful questions of fact, nor in any case unless the officer is under legal obligation to do the act required. 1 93. Jurisdiction of courts of civil appeals. The courts of civil appeals have appellate jurisdiction co-extensive with the limits of their respective districts, which extends to all civil cases of which the district courts or county courts have orig- inal or appellate jurisdiction, under such restrictions and regula- tions as may be prescribed by law. The decisions of said courts are conclusive on all questions of fact brought before them on ap- peal or error. It is provided that said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law. 2 The constitution also provides that in all appeals from justices' courts " there shall be a trial de novo in the county court, and ap- peals may be prosecuted from the final judgment rendered in such cases by the county court, as well as all cases civil and criminal of which the county court has exclusive or concurrent or original jurisdiction of civil appeals, in civil cases to the court of civil appeals, and in such criminal cases to the court of criminal appeals, with such exceptions and under such regulations as may be prescribed by law." 3 Under the statute the appellate jurisdiction of the courts of civil appeals extends to civil cases within the limits of their respective districts : (1) Of which the district court has original or appellate jurisdic- tion. (2) Of which the county court has original jurisdiction. (3) Of which the county court has appellate jurisdiction when the judgment or amount in controversy shall exceed $100 exclusive of interest and costs. 4 The court of civil appeals has jurisdiction over cases coming from the district court without restriction as to the amount in contro- versy. Jurisdiction was taken in a case in which a judgment was rendered for $80. 5 1 Teat v. McGaughey, 85 T. 478 (22 S. W. Rep. 302). 2 Const., art. V, 6. 3 Const., art. IV, 16. In the amended section of the constitution of 1876 the word or between the words concurrent and original is not found. It reads, "of which the county court has exclusive or concurrent original jurisdiction." The insertion of the word is probably not a mistake of the printer, as it is found in every copy of the amendment examined by the writer. The intention of course is to confer jurisdiction of cases of which the county courts have original juris- diction, whether exclusive or concurrent, and the word or, therefore, ought to be omitted before the word original. 4 R. S. 996, 1383. See g 79, fnipra. 6 Cadwallader v. Lovece, 29 S. W. Rep. 666. A court of civil appeals has no power to examine the evidence and dispose of a case on an issue of fact which M 1-1:: n AM> . .11. AITS 5 94. Jurisdiction of courts of civil appeals confined to civil cases. A proceeding I iy /<-//>'.- >;>,/,,/*, 1>\- a father, as next friend of his child, t<> determine the rightful custody of the chilil, is a civil and the court of civil appeals has jurisdiction of an appeal from the judgment of the district court. If it appears in such a proceeding that a peison is restrained ly reason of a supposed violation of a criminal law, or //"./.-/'-criminal la\v, as an offense against the per- son, or contempt of court, then the proceeding must be classed as a criminal case, although upon the whole case the court should be of opinion that the act for which such person is detained does not stitute a violation of such law, or that the evidence is totally insutli- to establish the act, or that the supposed law does not exist. or is void; but if such person is not restrained by reason of some supposed violation of law, then the proceeding must be classed as a civil case. It is the cause of restraint which determines whether the proceeding is civil or criminal. 1 Proceedings on a forfeited bail bond are criminal, and a court of civil appeals has no jurisdiction. 2 ?; 95. Jurisdiction of courts of civil appeals of cases appealed from justices' courts. Unless in a case appealed from a justice's court to the county court, the judgment rendered in the county court, or the amount in controversy, shall exceed 8100, exclusive of interest and costs, the court of civil appeals is without jurisdiction to entertain an ap- peal from the county court. 3 The amount in controversy on a counter-claim, if sufficient, will confer appellate jurisdiction, al- though the amount claimed by plaintiff is less than $100. But the counter-claim must be a matter of controversy ; and when it appears, if ever relied upon, to have been substantially abandoned, and that no evidence was offered in support of it, it will not support an ap- peal. 4 Suit was brought in a justice court to recover on eight promis- sory notes, airgregatinu; s v ". and to foreclose a lien upon one ><.da fountain, worth $150, for which the notes were executed. While an appeal was pending in the county court the soda fountain was de- >t submitted to the jury, and was not a fact conceded. Mexican N Co. v. Musette, 7 Civ. App. 169. The jurisdiction of a court of <-ivil apj appellate only, and causes must be decided upon the record mad*- in tli. l.v. r -urt. The statutes do not contemplate that allidavits of facts not in the i may U- entertained, or that they should in anv\\ isc shape or affect tl Maverick v. Routh, 7 Civ. App. 088 ,.':i S. W. Rep. .V.MJ. and -,'ii id. 1009). -rate v. Legate, 87 T. -.' ^ s. W. i: -p. Ueter v. State. 86 I '. iv s. F. By. Co r. i: V f, V ft w. Hep. 182; O.. C. & s. l Karmi-r. :i Civ. App. J.> $*& \V. i;-p. :!:>. C<,ntni. C,., C. &S. F. Ry. Co. V. \\Yr- ..-iian. :' Civ. App. 17^ U S. \V. Rep < Bledsoe v. U., C. & S. F. Hy. App. 280 (25 S. W. Rep. 314). 110 JURISDICTION. [ 96-98. stroyed by fire, and when the case was tried the subject of contro- versy was the amount of the notes, with interest. This amount being less than $100, it was held that the court of civil appeals had no jurisdiction of an appeal from the judgment of the county court. 1 96. Transfer of cases from one court of civil appeals to another. It is made the duty of the supreme court to equalize as nearly as practicable the amount of business upon the dockets of the differ- ent courts of civil appeals by directing the transfer of cases from such of said courts as may have the greater number of cases upon their dockets to those having a less amount of business upon their dockets ; such transfers to be made at least once a year, in such man- ner and under such rules and regulations as the supreme court shall provide. The courts of civil appeals to which such cases shall be transferred shall have jurisdiction of all such cases transferred without regard to the districts in which such cases were originally tried and returnable on appeal. Cases transferred must be taken by consecutive numbers in the order in which they stand upon the docket. 2 97. Quorum in supreme court and courts of civil appeals. The supreme court consists of a chief justice and two associate justices, any two of whom, shall constitute a quorum, and the con- currence of two judges is necessary to the decision of a case. 3 Each of the courts of civil appeals consists of a chief justice and two associate justices, and the concurrence of two justices is neces- sary to the decision of a case. "A majority of the judges of the several courts of civil appeals shall constitute a quorum for the transaction of business." 4 The constitution does not prescribe the number of judges neces- sary to constitute a -quorum in the court of civil appeals. It does provide that, if any member is disqualified, the fact shall be certi- fied to the go\ 7 ernor, who shall appoint, etc. Notwithstanding this provision, it is held that, when only one member is disqualified, the other two constitute a lawful court, and may hear and deter- mine the cause. 5 98. Power of court of civil appeals to issue writs, etc. The courts of civil appeals and the judges thereof have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of the court. They have power, upon affidavit or otherwise, as by the court may be thougjit proper, to ascertain such 1 Tufts v. Hodges, 8 Civ. App. 240 (28 S. W. Rep. 110). 2 Acts 1895, p. 79; R. S. 994a. 3 Const, art. V, 2; R. S. 933. R. S. 987, 995. City of Austin v. Nalle, 85 T. 520 (22 S. W. Rep. 668, 960); Gwin v. O'Daniel, 85 T. 563 (22 S. W. Rep. 876). 99.] SUPREME COURT AND COURTS OF CIVIL APPEALS. Ill matters of fact as may be necessary to the proper exercise of their liction. The said courts, or any judge thereof in vacation, inav issue the writ of iitn day, or for such p-ri. -d as the iav think necessary to the ends of justice and tin- d initiation of the business before them. There shall be no discontin- uance- of any suit, process or matter returned to or depending in the supreme court, although a quorum of the court may not be in R & 997, 998, 1000. RS. 1" Tannin County v. Hightower. 29 S. W. R.-p. : Cruger v. Mc-Crark.-n. s? T. .V<4 CJ<> S. W. Rep. 537). W. U. T.-l. ... v !<-. f.-. -; T. -.':: .->* S. W. Rep. 945); Wichita Valley Ry. Ca v. Peery, 81 T. 597 (30 S. W. Rep. 435> Const, art. V. ~ :j; R S. 937. 112 JURISDICTION. [100,101. attendance at the commencement or any other day of the term ; but if a sufficient number of judges shall not attend on the first day of the term to hold said court, or shall not attend at any day of the term, any judge of the court, or the sheriff attending the same, may adjourn the court from time to time, for thirty days, at which time, if a majority or quorum shall not attend, it shall be the duty of the judge or sheriff in attendance to adjourn the court to the next regular term time. 1 g 100. Sessions of courts of civil appeals. Each of the courts of civil appeals must hold its sessions at a place in its district to be designated by the legislature, and at such time as may be prescribed by law. 2 The terms of said courts com- mence on the first Monday in October of each year, and the court may continue in session until the first Monday in July of each suc- ceeding year. 3 A court of civil appeals may adjourn from day to day or for such time as may be deemed proper by the judges thereof. If a sufficient number of the judges shall not be present at the first or any day of the term, any judge of the court, or the sheriff at- tending the same, may adjourn the court from time to time, until a quorum shall be in attendance, but the court shall not be finally adjourned for the term. 4 Under the act of 1893, the courts of civil appeals are held at Galveston, Fort "Worth, Austin, San Antonio, and Dallas. 5 101. Supreme court may make and enforce rules of procedure. The supreme court has power to make and establish rules of pro- cedure, not inconsistent with the laws of the state, for the govern- ment of said court and the other courts of the state, to expedite the dispatch of business therein. 6 The statute provides that the supreme court shall have power to make, establish and enforce all necessary rules of practice and procedure, not inconsistent with the laws of this state, for the government of said court, and all other courts of the state, so as to expedite the dispatch of business in said courts. 7 It is also the duty of the court to make and promulgate suitable forms, rules and regulations for carrying into effect the statutes relating to its own jurisdiction and practice. 8 All litigants must take notice of the rules of the court in which 1 R. S. 938. 2 Const., art. V, 6. 3R. S. 991. 4R.S. 995. 5 R. S. 993. Const., art V, 25. " R. S. 947. 8 R. S. 944. 2.] sri'KKMK COURT AND COURT8 OF CIVIL AIT! 113 they :nv litigating. 1 Rules of practice established l>y the supreme court may be so adapted in their exercise as to prevent any partic- ular oppression; those prescribed by the legislature must be ol>- according to their meaning, whatever may be the consequences in individual rases. 2 The power above conferred must have designed more than the making of a few short rules, such as had formerly been made. 1 Failure to observe the rules prescribed by the su- preme court for bringing cases before it is a good ground for dis- missal, in the discretion of the court, unless a sufficient excuse is shown. 4 In construing their own rules of practice, the courts gen- erally exclude Sunday.* 102. Contempt ol court. The supreme court has power to punish any person for a con- tempt of said court, according to the principles and usages of law in like cases, not to exceed sl,oijo fine and imprisonment not ex- ceeding twenty days. 6 The same power is conferred upon the courts of civil appeals, with the exception that they may fine or im- prison not both. 7 i So. Pac. Ry. Co, v. Haas, 85 T. 401 (20 S. W. Rep, 586). De Leon v. Owen, 3 T. 153; Mills v. Bagby, 4 T. 320, Texas Land Co. v. Williams, 48 T. 602. Shanks v. Carroll, 50 T. 17. * Burr v. Lewis, 6 T. 76. 8R.S.948. See 60, 61, ante. 'R.S.999. 8 CHAPTEE Y. ORIGINAL, APPELLATE AND SUPERVISORY JURISDICTION OF THE DISTRICT AND COUNTY COURTS. 103. Original jurisdiction of the dis- trict court. 104 Original jurisdiction of county courts. 105. Various statutory provisions as to jurisdiction. 106. General principles in respect to the jurisdiction of the district court. 107. Amount in controversy. 108. Amount in controversy in dis- trict court 109. Amount in controversy in the enforcement of liens. 110. Amount in controversy in case of payment, re mission of a part, or a reduction on exception. 111. Suits concerning land. 112. Enforcement of liens on land. 113. Trial of the right of property. 114. Trial of right to office. 115. Removal from office. 116. Motions against officers of court. 117. Jurisdiction in equity. 118. Power to issue writs. 119. Appellate and supervisory juris- diction of the district courts. 120. Appellate and supervisory juris- diction of county courts. 103. Original jurisdiction of the district court. The district courts have original jurisdiction in civil cases: 1. Of all suits in behalf of the state to recover penalties, forfeit- ures and escheats. 2. Of all cases of divorce. 3. Of all suits to recover damages for slander or defamation of character. 4. Of all suits for the trial of title to land, and for the enforce- ment of liens thereon. 5. Of all suits for trial of right to property levied upon by virtue of any writ of execution, sequestration or attachment, when the property levied on shall be equal to or exceed in value $500. 6. Of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in con- troversy shall be valued at or amount to $500 exclusive of interest. 7. Of contested elections. 8. And have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or the constitution, and such other jurisdiction, original and appel- late, as may be provided by law. 1 Subject to the limitation stated in chapter 3, title 23, of the Re- 1 Coast, art V, g 8; R S. 1098, 1099. 4-.] DISTRICT AND COUNTY COti:T-. 11.1 : Statutes, the district courts are authorized to he-ir and - B in runt, ;! valiil an>l i-nVctnal uinU-r the above aim nil- win- re full provision is maJ for cunt Const, ai R. S. 1151, 11 5.1 See 108, infra. 116 jrmsDicTioN. [ 104:. the other courts to such change. 1 It is provided by statute that the county court shall not have jurisdiction 1. Of any suit to recover damages for slander or defamation of character. 2. Nor of suits for the recovery of land. 3. Nor of suits for the enforcement of liens upon land. 4. Nor of suits in behalf of the state for escheats. 5. Nor of suits for divorce. 6. Nor of suits for the forfeiture of the charters of incorporations and incorporated companies. 7. Nor of suits for the trial of the right to property levied on by virtue of any writ of execution, sequestration or attachment, when the property levied on shall be equal to or exceed in value $500. 2 Subject to the limitations stated, the county courts are authorized to hear and determine any cause which is or may be cognizable by courts, either of law or equity, and to grant any relief which could be granted by said courts or either of them. 3 Power is also conferred on the county judge to appoint commis- sioners to assess damages in proceedings to condemn land, and to try the matter when either party is dissatisfied with the decision of the commissioners. 4 The constitutional amendment of 1891 relating to the judiciary did not restore to the county courts the jurisdiction that had been previously taken from them and vested in the district courts by acts diminishing the jurisdiction of the county courts of certain counties. Article 22 of section 5, empowering the legislature to di- minish or change the jurisdiction of count} 7 " courts, was not changed ; and it is a reasonable presumption that it was the intention to con- tinue it in uninterrupted operation. 15 The jurisdiction of the county court over the subject-matter must be affirmatively shown by the record ; it will not be presumed. 6 The provision of the constitution conferring jurisdiction on the 1 Const., art. V, 22. Numerous acts have been passed under this provision, increasing, diminishing, changing and restoring the jurisdiction of county courts in various counties, so that it is now necessary to consult the statutes to ascertain the jurisdiction of any county court, or that of other courts affected by such changes. If an act be regarded as an attempt to change the jurisdiction of the county court, it will be held inoperative if it fails to conform the juris- diction of the other courts to such change. So held in respect to article 5295 of the Revised Statutes, which gives jurisdiction to county courts in trials of right to property where the amount in controversy is $500. Erwin v. Blanks, 62 T. 583. See 113, infra. 2R S. 1157. 8R.S. 1162. * R S. 4447, 4448, 4468. 6 Muench v. Oppenheimer, 86 T. 568 (26 S. W. Rep. 496), 6 Bohl v. Brown, 2 App. C. C. ? 540. 'J.] MMKKT AM' OOUBTI O 'I'KTS. 117 county court whore the amount in controversy I|..,-N not v\ si. 01 MI, i-\r|u>i\e of interest, applies to cases iu which inter. expressly given by statute, and not to those in which the rate of interest is merely taken as a standard by which to measure in part damages to be recovered. So where a plaintiff claims si. ..... > as the value of L'oods eon verted, and an additional sum as inr on that amount from the time of the conversion as damages, the county court has no jurisdiction; and the case is one over which upreme court has jurisdiction on error to the court of civil appeals. 1 Where a claim is made for both actual and exemplary dam and the aggregate amount is sufficient to confer jurisdiction, the elimination of the claim for exemplary damages by the death of the plaintiff will not defeat the jurisdiction. 3 In an action against a railroad company to recover a penalty of s.'.ou for unjust discrim- ination, it was held that the fact that three distinct acts of discrim- ination were alleged did not indicate a claim for $500 for each act, thus placing the amount above the jurisdiction of the county court. The constitution and statutes give to justices' courts jurisdiction when the amount in controversy is 200 or less, exclusive of inter- mit it is not said that such jurisdiction is exclusive. Exclusive jurisdiction is given to the county court when the amount excee. . but nowhere, it seems, is it said that it may or may not have jurisdiction when the amount in controversy is less than $200.* i' 105. Various statutory provisions as to jurisdiction. Suit on an apprentice bond may be brought in any court having jurisdiction of the amount claimed; 5 or suits against common ear- for failure to feed and water live-stock; 6 also suits for the partition of personal property shall be brought in any court having jurisdiction of the value of the property. 7 I'l K.-eedhiLTs b% the United States to acquire land, where the agent and the owner cannot agree, must be brought in the district court ; ^ also proceeding |,\- any person to change his name; ' or for the dis- solution of marriage; 10 or to remove the disabilities of a minor; 11 or for partition of real Iser v. Bak.-r. -,".i s. \V. K, r . :;:: : Dwyer v. Bassett, id. 815. - luvy.-r v. 1 1. 1 \V. Rep, 815. Id* v. Ft. W. & D. C. Ry. Ca, 30 S. W. Rep. 255. ML, ;irt. V, g 1'J; K. S R,S.44. I;. 837. R ' U. s. :;::. .178. I:, a :!499. 3 :i507. 118 JURISDICTION. [ 106. 106. General principles in respect to the jurisdiction of the dis- trict court. A narrow and literal construction of the constitution, in regard to the jurisdiction of the district court, will not be adopted, when its result would be to leave no tribunal competent to take jurisdic- tion of important cases arising under legislative enactments. 1 The legislature has no power to add to or withdraw from the jurisdic- tion of district courts, except when expressly conferred by the con- stitution, as in section 22, article V, of that instrument. 2 If a cause of action exists, and jurisdiction thereof is not conferred upon any other court, it is embraced within the jurisdiction of the district court. 3 Under the clause conferring jurisdiction "of all suits, complaints and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at," etc., there can be no jurisdiction until there is a suit, complaint or plea, and a matter in controversy. The phrase, "matter in contro- versy," implies that the pleading which invokes jurisdiction must disclose an adversary and assert a right against him. The essential functions of district courts in this state have always been judicial, not administrative; they adjudicate differences between litigants; they do not register and administer agreements between individ- uals. A petition by a number of part owners- of land addressed to the district court, and disclosing an agreement as to the rights of parties in the land, and asking an order of sale thereof, does not confer jurisdiction : it is not a suit ; there is no controversy. Nor does the fact that one of the parties is a minor alter the rule. 4 In its own peculiar sphere the district court-is independent and supreme in its power, and the appellate court has no authority to inquire into or revise its judgments during the period of time when, by its very organization and constitution, it still has power to alter or change such judgments. The district court has during the term complete and perfect control overall its orders and judgments, and the appellate power cannot be exercised as to them until the dis- trict court finally adjourns. 5 After the close of the term the court has no further control over cases in which final judgments have 1 State v. De Gress, 53 T. 387. 2 Ex parte Whitlow, 59 T. 273. 3 Const., art. V, 8: Gamel v. Smith, 3 Civ. App. 22 (21 S. W. Rep. 628). In all cases of doubt as to what the law controlling the effect of a trust deed is, and as to the conduct of the trustee under such deed, the trustee is entitled to in- struction and direction from the court. In such case the trustee, by bill setting f >rth the facts and joining the proper parties, may ask the court for instruc- tions touching his rights and duties under the trust, and the district court lias jurisdiction. 4 Blagge v. Moore, 6 Civ. App. 359 (23 S. W. Rep. 466). SGarza v. Baker, 58 T. 483; Hamilton v. Pleasants, 31 T. 638. See 695. '7.] DISTUICT AND COUNTY C -I 119 nt-Mvd, without some action on the part of the parties in the nature of an original proceeding; 1 it may, on motion and n< amend the judgment.- The district court in all cases within the of its jurisdiction lias authority to grant any measure of re- hether in law or equity, that could at common law l>e granted either by a court of law or equity.* The constitutional amend- ments of l^'.'l relating to the judiciary did not affect jurisdict ion already vested in the district courts by acts previously pa diminishing the jurisdiction of county courts. 4 5 1O7. Amount in controversy. Jurisdiction, so far as matter or amount in value is concerned. must be determined by the petition; and the question is concluded by its averments in so far as they state facts in relation to the thing in controversy, unless it otherwise appears that an attempt has been to confer jurisdiction by averments improperly. In actions sounding in damages, the amount of damages claimed, and not the amount of the verdict, determines jurisdiction. In actions ex con- '/ the amount claimed determines jurisdiction, if it is not made to appear that a fraud upon the jurisdiction has been attempted by improper averments in the petition. In a case admitting of rea- sonable doubt as to whether the amount in controversy is within the jurisdiction, and where the plaintiff might have had reasonable grounds to believe that lie could recover a sum within the jurisdic- tion of the court, the case will not be dismissed, for all intend- ments in a doubtful case are in favor of the jurisdiction. 5 The terms "matter in controversy" and "amount in controversy" have the same meaning. 9 If items are fraudulently included in a petition, for the purpose \in.i: the court a jurisdiction to which it is not entitled, this should be pleaded and made an issue in the case. 7 dale v. Green, 36 T. 193; Bass v. Hays, 38 T. 128; Hill v. Faison, 27 T. 428. 2 Cowan v. Ross, 28 T. 227; Burnett v. State, U T. 450; Whittaker v. Gee, 63 T. Voitlan,lrr \. Hrotze, 59 T. 286; Tucker v. Anderson, 2-'> T. Sup. 158; T Kol.inson, 11 T. 776; Sbulte v. Hoffman, 18 T. 678; Simpson v. Hu>ton. 14 T. 47H. n>titu- rioii. rxclu-iM- jurisdiction was conferred upon th>- county court "luring the in -v of tin- Miit. it >hoult.r. M.-i'rt-arv v. . Lodge, 2 U. C ('.:{ T. 274: Ti.lhall v. Ki.-bolf, 66 T. 58 ilT S. \V. Rep. 363); in v. U,, 11,, way. f.'.i T. u;s ,.; S. W. K',-p. 7^:,,-. .},,w^ v. Jtiiiaii. 'J A |,|>. ('.('..? TTu. .In l-mcnt may 1 red for less (ban tht- juris-lictioiial amount. Sa!m>-r \. Machon, 1 Apj>. i J; Tex. ".. :: A pp. nith v. (iil,-. C,:, T. :!41. Tidball v. KichotT, GO T. 5B (17 8. W. Rep. 263): I. \- C. N. l;y. Co. v. 120 JURISDICTION. [ 107. As a general rule, in actions ex contractu the question of jurisdic- tion is determined by the amount of damages claimed in the peti- tion, and not by the amount recovered ; l also in actions of tort. 2 In an action for the conversion of property the amount in contro- versy, and not the amount found in the verdict of the jury, deter- mines the jurisdiction of the court. The amount claimed in the petition will be deemed the amount in controversy, and will deter- mine the question of jurisdiction, unless it appear that the allega- tions were falsely and fraudulently made to give jurisdiction where it did not properly belong. The value of the property and the damages from the seizure constitute the amount in controversy. 3 The question of jurisdiction of a plea in reconvention is deter- mined by reference to the amount claimed in such plea. And it is held that the amount claimed by such plea determines the right to appeal from the judgment of the county court rendered in a case appealed to that court from a justice's court. 4 In a suit to enjoin a judgment where there has been a levy on property, the amount of the judgment and not the value of the property levied upon is the amount in controversy. 5 But where the suit is brought to enjoin a sale of the property, the value of the property determines the question of jurisdiction. 6 Where the sub- ject-matter of a controversy is the priority of liens claimed on cer- son, 61 T. 550; Dvvyer v. Bassett, 63 T. 274; Roper v. Brady, 80 T. 588 (16 S. W. Rep. 434); Bates v. Van Pelt, 1 Civ. App. 185 (20 S. W. Rep. 949); Seville v. Rush, 25 S. W. Rep. 1022. 1 Lay v. Blankenship, 2 U. C. 272. 2 Sozaya v. Patterson, 23 S. W. Rep. 745. Baker v. Guinn, 4 Civ. App. 539 (23 S. W. Rep. 604). Where the demand sued for amounted to 466, and 200 consequent, additional and necessary damages was also claimed, the subject of litigation was within the jurisdiction of the district court. Dahoney v. Allison, 1 U. C. 112. Where the petition claims a balance of account in the sum of $929.55, and an itemized account annexed shows that sum to be due, an additional allegation, " to his damage 500," does not limit the amount in controversy to 500. The allegation may be disre- garded. Buer v. Prescott, 14 S. W. Rep. 138. In a suit on a note the stipulated attorney's fee is a part of the matter in controversy and not costs of suit. Blankenship v. Wartelsky, 6 S. W. Rep. 140; Altgelt v. Harris, 11 S. W. Rep. 857; Waters v. Walker, 4 App. C., C., 268; Martin Brown Co. v. Perrill, 77 T. 199 (13 S. W. Rep. 975); King v. Robinson, 2 App. C. C., 556; Moore v. Fay, 4 App. C. C., 199. < Newman v. McCallum, 1 App. C. C., 273; Taul v. Shanklin, 1 App. C. C., 1135: Tucker v. Napier, 1 App. C. C., 671; L & G. N. Ry. Co. v. Grant, 1 App. C. C., g 784; Seitz v. McKenzie, 4 Civ. App. 81 (22 S. W. Rep. 104). Where a suit is instituted in the district court to recover an amount below the jurisdiction of the court, and also to enforce a lien on land, and the jurisdiction fails, by reason of the lien proving invalid, a plea in reconvention for an amount within the jurisdiction of the court is sufficient to authorize an adjudication. Phelps & Bigelow Windmill Co. v. Parker, 30 S. W. Rep. 365. 5 Wheeler v. Whitener, 2 App. C. C., 15. e Brown v. Young, 1 App. C. C., 1240. 107.] Ul tain propfrrv, the value of the property is the amount in eontro- . .' In a suit to srt aside and cancel a mortiraire tin- value of the property niortiM-vd determines the jurisdiction.'-' Also where tlie object of the suit is to enjoin a sale of exempt property. 1 In suits by attachment the amount of the debt and not the value of the property attached is the matter in controversy. 4 Where a judgment of a county court is for more thai it will he presumed, in favor of jurisdiction, that the excess over is interest on the amount sued for. The county court is a court of general jurisdiction within the limits prescribed by la\\O Where the object of the suit is to recover the value of property d upon, and which is claimed to be necessary to the beneficial enjoyment of plaintiff's homestead, and damages are claimed, the. amount claimed in the petition and not the value of the property is the amount in controversy. 6 Several tax-payers may join in a suit to restrain the collection of taxes levied on their property, and the aggregate amount of the taxes sought to be enjoined determines the question of jurisdiction. 7 Where the allegations in the petition show that the amount in controversy is in excess of the jurisdiction of a county court, the >hould be dismissed, though the prayer is for a sum over which the court has jurisdiction. 8 Allegations as to damages which are 1 Fisher v. Bogarth, 2 App. C. C., g 121. Bohl v. Brown, 2 App. C. C., 54 J. Kelley v. Stein, 3 App. C. C., 451. 4 Barnett v" Rayburn, 4 App. C. C., 84. Richards v. belcher, 6 Civ. App. 284 (25 S. W. Rep. 740). 6 Ross v. MeGuffiu, 2 App. C. C., g >. 'Carlile v. Eldridge, 1 App. C. C.. 986. 8 Rose v. Riddle, 3 App. C. C., g 298. Where the amount of a note sued on is within tlf jurisdiction of the county court, an allegation of damage for failure t< ' p.iy thi- note should be rejected as surplusage, and the case should be retained. Opp -nheimer v. Fritter, 3 App. C. C., 2(>:j. Tin- county court has juris diction to set aside an allowance of a claim for &J1H a^ainM an estate. Robertson v. M< \ ! . i App. C. C., 546. The petition showed that B. and P. had a oat actimi :i_-iii!-t T. in a mount sufficient to give jurisdiction to the county court. 1'. had sold his half of the claim to B., and guarantied payment <-t -,.V In suit is a proper party. The statute allowing suit in the county of the nee of one of several defendants makes no distinction as to the dun of his liability, whether primary or as security. The fact that I'.'s liability was only $12.*>. and not in itsdf within the jurisdiction of the county court. wt.uld privi- the county court of jurisdiction of bin liability, the amount of the entire liability being sufficient to give the court juris fiction. Suit could IK- brought in t h-- county of P. 's residence. The court having jurisdiction of the dairn had it as to tip- part guarantied by him. Tl .iii-l .u'iar- unty iK-ing gi-nuinc, and for a valuable, consideration, the effect of ^ivin^ juris. diction in 1 1,.- ,nrt of P.'s n-nidi-i would not be aflfect-d. altln-u-h ;h obj,-ct in part %\;iv to confer sudi jurisdiction. Tin- transaction \v;is not a fraud upon the jurisdiction. Turner v, brooks, 2 Civ. App. 401 i','l S. W. Rep, 404). 122 JURISDICTION. [ 108. not the obvious consequences of the acts complained of will not be considered. 1 g 108. Amount in controversy in district court. Section 8, article V, of the constitution confers on the district court jurisdiction of all suits when the matter in controversy shall be valued at or amount to $500, exclusive of interest. Construing this section in connection with section 16 of the same article, which provides that the county courts shall have exclusive original juris- diction in all civil cases when the matter in controversy shall exceed 200 and not exceed $500, exclusive of interest, and concur- rent jurisdiction with the district courts when the matter in con- troversy shall exceed $500 and not exceed $1,000, exclusive of interest, it is held: (1) There is an irreconcilable conflict between the two provisions since the district court cannot have jurisdic- tion when the amount involved is precisely $500, and the county court exclusive jurisdiction for the same amount. (2) But the pro- vision in section 16 is more comprehensive as well as more specific than that in section 8, and, under a canon of construction, should be regarded as the more accurate expression of the law-makers' in- tent. (3) In construing repugnant provisions of a constitution, it would seem that the last provision should prevail; but as applied to the organic law, this rule should be acted on only as a last resort. 2 The district court has no .jurisdiction of a suit to recover money of the exact amount of $500.* When a plaintiff in his petition al- leges the amount in controversy to be a sum which gives jurisdic- tion to the district court, the jurisdiction can only be questioned by plea alleging that the amount in controversy is i'alsely stated for the purpose of conferring power upon the court to hear and de- termine the case. It has been often decided in cases in which the collection of money has been enjoined that the defendant upon proper pleading and proof may have a judgment for his debt, al- though the amount be not sufficient to give jurisdiction to the court in the original action. Where a plaintiff sues in the district court on a debt less in amount than $500 and to enforce a lien on land, if it be found that no lien exists, the suit will be dismissed for want of jurisdiction. 4 iMcKnight v. Carmichael, 7 Civ. A pp. 270 (27 S. W. Rep. 150). 2 G., C. & S. F. Ry. Co. v. Rambolt, 67 T. 654 (4 S. W. Rep. 356); Erwin v. Blanks, fiO T. 583; Cleveland v. Tufts, 69 T. 580 (7 S. W. Rep. 72); Carney v. Marsalis. 77 T. 62 (13 S. W. Rep. 636); Wetzel v. Simon, 87 T. 403 (28 S. W. Rep. 942); Better- ton v. Echols. 85 T. 212 (20 S. W. Rep. 63). See St. Louis Type Foundry v. Taylor, 6 Civ. App. 732 (26 S. W. Rep. 226). 3 G., C. & S. F. Ry. Co. v. Rambolt, 67 T. 654 (4 S. W. Rep. 356); Garrison v. Express Co., 69 T. 345 (6 S. W. Rep. 842); Carroll v. Silk, 70 T. 23 (11 S. W. Rep. 116); Wood County v. Cate, 75 T. 219 (12 S. W. Rep. 536). Nor where the amount is Sod:), with interest. Henderson v. Anglo-American L. & C. Ass'n, 7 S. W. Rep. 837. 4 Carter v. Hubbard, 79 T. 356 (15 S. W. Rep. 392). Carter, a creditor whose 'S.] DISTRICT AND C^l The jurisdiction of suits in behalf (f tlio state to recover pena 1- t'orfeitures and escheats is not dependent upon the amount in COM t i-o \vi-sy; as, for example, a suit on a liquor -drain-' s bond. The :hat the jvnalty is recovered liy the state in hchalf of a county not all'ect the suit as in behalf of the state. The rule holds in suits on peace bonds. 1 The district court has no jurisdiction to decree the cancellation of a deed for the sale of land on the ground of fraud in the vendor, when the purchase-money, exclusive of interest, the recovery back of which is sought, amounts to less than .">oo, there being no con- troversy involving the title, a reconveyance of which to the vendor was tendered by the plaint it!. 2 In actions for damages, where the jury would l>e warranted in giving exemplary damages, the ques- tion of jurisdiction is determined solely by the amount claimed in the petition. 3 claim was less than $500, sued Hubbard, executor of Davis, and Cox to annul a nan tin t'-tator to Cox conveying a tract of land, etc., and to establish his claim against the estate. Carter failing in the other parts of his action, his. iiu .11. %- claim could not be considered in the district court for want of jurisdic- tion over tin- amount rinaii. 81 T. 569 (16 S. W. Rep. 1067); State v. Stoutsenberj; S. \V. i l App. G : State v. Laing. 16 S. W. Rep. 100*: State v. San Miguel. 4 t 'iv. A pp. is-j (& 8. W. Rep. 389). In Grady v. Regan. ',' A pp. C. C., .t is In-Ill that a suit brought by the county judge on a liquor-deal r's bond is not a suit in behalf of the state to recover a penalty or forfeiture, and that the amount claimed determined the jurisdiction. -Mixan v. Qrove, 59 T. 57:5. Graham v. Roder, 5 T. 141. Contract was made to deliver six hundred luv. I of cattle l>y a specified time. Delivery was made and accepted of four hundred and seventy-three Uead after the time, and one hundred and twenty-seven head were not delivered. Plaintiff sued, alleging his damages to be $871 for failure to deliver thf OIK- hundred and twenty-seven head, and also $1,000 for failure to deliver on time. It \\as claimed that as there was a delivery and acceptance of a part of th < attle, the petition showed that the $371 claimed for non-delivery erly overruled. 1'arrar v. Beeman. <>:J T. 175. The record in a suit in debt on a promissory note disclosed the beginning of the action in the county court, and its termination l>y a judgment in tl, ourt. l>ut revealed no cause for the : f jurisdiction. Tin- del.t claimed to be due was on a promissory note tor 5vN.'.i5. less credits indorsed. If the suit \\as properly coL-ni/jilile in the district court, it was only in the ex- ercise of some sj>ecial jurisdiction, in favor ot which no presumption could be indulged. Bruhn v. National Bank, ~>l T. I'.v. 124: JURISDICTION. [ 109. Where the district court has jurisdiction to render judgment in a suit, the amount involved in a subsequent and incidental proceed- ing, to correct an irregularity, abuse, or illegality of the final process issued upon the judgment, is immaterial. 1 The district court from which an execution issues has jurisdiction of a motion against a bid- der to recover the percentage on the value of property bid off by him at the execution sale, without reference to the amount to be recovered. 3 The district court has jurisdiction if the aggregate amount of the claims sued on is within its jurisdiction, though the amount of one of each of said claims is less than the jurisdictional amount. 3 100. Amount in controversy in the enforcement of liens. In a suit to enforce a lien on personal property the value of the property determines the jurisdiction of the court. 4 Where an action is brought in the district court to enforce a lien on land, and the claim for a lien fails, if the amount in controvery is less than that required to give the court jurisdiction, the case should be dismissed. 5 In actions to enforce liens by laborers on railroads, the amount claimed and not the value of the property determines the jurisdic- tion. 6 But it has been held that the county court has no jurisdic- tion where it is sought to enforce a lien on the grade and road-bed of a railroad ; 7 but the action will lie when the lien sought is only against the equipments. 8 1 Walker v. McMaster, 48 T. 213. 2 Lockridge v. Baldwin, 20 T. 303; Ende v. Spencer, 38 T. 114. 3 Mays v. Lewis, 4 T. 38; Lott v. Adams, 4 T, 426; Ferguson v. Culton, 8 T. 283. Where defendant in a suit on three notes in the district court of A. county sets up his right to be sued in B, county as to one of the notes, the amount of that note cannot be added to the others to raise the amount sued on in A. county to the jurisdictional amount, Middlebrook v. David Bradley Mfg. Co., 26 S. W. Rep. 113. Where the amount in controversy exceeds $500, the district court has juris- diction to compel a settlement between the community survivor and those en- titled as distributees to a partition of the estate. Huppman v, Schmidt, 65 T. 583. A distress warrant issued by a justice of the peace on a claim for rent for 3,262, of which 116.50 was then due, and it was claimed was to become due. Levied and returned into district court, and writs of injunction and sequestra- tion issued against attaching creditors of the lessee, General demurrer and special answer, also motion to dissolve the injunction because of insufficiency in the petition and want of jurisdiction. The court did not err in quashing the writ of sequestration and in dissolving the writ of injunction, and, as the court had no jurisdiction of appellant's claim, it correctly sustained the demurrer and dismissed the petition. Green v. Bear, 3. U. C. 372, 7 A suit to enjoin the obstruction of an easement, and for dam involves the title to land. 1 Not s>, however, where the action is only for damages to an easement. 2 In an action to enjoin a par- ticular use of a partition wall, and for general relief, the title and possession of the land are so far involved as to give the district court iiction without alleging any amount of damages. 1 It is held that a proceeding to condemn land does not involve the 1 IJut in a later case it is held that a county court would have- no jurisdiction of such a case except for the constitutional provision t-in powering the legislature to increase, diminish or change the ju- rUdiction of the county court. ' The county court has no jurisdiction of a suit to remove a cloud from title;' nor to annul and cancel deeds and other instruments evidencing title to land. 7 It has jurisdiction of a suit for damages for trespass on land; 8 as, in a case of an action for damages for taking and carrying away lumber placed upon land, it being alleged that defendants maliciously set up an unfounded claim to the land, well knowing that it belonged to the plaintiff. These allegations are held to state matter of inducement on which to base a claim for exem- plary damages.' It also has jurisdiction of an action for dan; for breach of warranty of title to land. 10 When the county court has jurisdiction of a cause of action, and it becomes necessary to inquire incidentally into the title to land in order to determine the question of liability, it has jurisdiction to 1 Hahy v. K&enig, 2 U. C. 439; Gascamp v. Drews, 2 App. C. C., 95; Scripture nt, 1 App. C. C., S 1057. * G.. C. & & F. Ry. Co. v. Thompson, 2 App. C. C., 568; G., C. & B. F. Ry. Co. v. Graves, 1 App. C. C, 579. Dauenhauer v. Devine. 51 T. 480. G., C.&S.F. Ry. Co. v. Mud Creek L A. & M. Co., 1 App. a C., 397. G., C.&S.F. Ry. Co. v. Tacquard, 3 App. C. C., g 141. Greenwood v. Watts, 1 App. C. C., g 116; Graves v. Fay, id., 134. 7 Bean v. Toland, 1 App. C. C., 1022. 8 Owens v. Prather, 1 App. C. C., 1181: Brown v. Brown. 8 App. C. C., ? Hatch v. Allan, 8 App. C. C., 229. The county court has jurisdiction of an action for damages caused by defendant's opening the fence ami turning his cuttle on plaintiff's land, though it may be necessary to inquire as to the posi- tion of the division fence. Claunch v. Osborn. 28 8. W. Rep. 937. ' Williams v. Truitt, 1 App. C. C., 519; McGregor v. Tabor, 26 S. W. Rep. 443. The county court had no jurisdiction in an action upon a bond given by the vendors of a tract of land, conditioned that they should clear the title sold to a part of the tract, which was in possession of the vendee at the time of his pur- chase The litigation involved title to land. Edwards v. Hefley, 8 Civ. A: W. Rep. 659). Where suit was brought in the county court to estaMish title to a land certificate, and pending suit the certificate was located, the court rived of jurisdiction in the matter, as it is without constif.i- 1 power to adjudicate the title to land. Myers v. Jones, 4 Civ. App. 330 \V. Rep. 302>. 128 JURISDICTION. [H2. pass upon such question in order properly to decide the cause before it. Thus, where plaintiff sued for the value of pine timber which he alleged he sold to defendant, and a third party intervened and claimed title to the timber on the ground that he owned the land from which the timber was cut, it was error to dismiss the inter- vention on the ground that title to land was involved. 1 The same ruling was made where plaintiff sued for the value of gravel taken from land, and defendant denied plaintiff's title and claimed title in himself. 2 112. Enforcement of liens on land. The constitution vests in the district court original jurisdiction for the enforcement of liens on land, and the statute denies all juris- diction in the county court. 3 It is held that the jurisdiction was intended to be exclusive without the aid of the statute, and that such was the ruling under the constitution of 1845, and each one subsequently adopted. 4 The liens intended are such as are created by the act of the parties, exist before the suit is commenced, and form the basis of it, or an important part of the same, such as mort- gages, deeds of trust, vendor's and mechanic's liens, and others of like character. They are such as must be alleged in the pleadings of the cause wherein the foreclosure is sought. But it is held that such liens as are created by the levy of an attachment or execution, or the rendition of a judgment in a court of record, were not con- templated. 5 The assertion of a lien of the kind intended gives juris- diction to the district court without reference to the amount in controversy. 6 Where the subject-matter of a suit is the validity of a mortgage on houses built on leased land, and the facts are not alleged show- 1 Melvin v. Chancy, 8 Civ. App. 252 (28 S. W. Rep. 241). 2 City of Victoria v. Schott, 29 S. W. Rep. 681. 8 Const, art, V, 8: R. S. 1157. 4 Hillebrand v. McMahan, 59 T. 450, citing Marshall v. Taylor, 7 T. 235; Lane v. Howard, 22 T. 8; Hargrove v. Simpson, 25 T. 396; Preston v. Breedlove, 45 T. 48. 8 Hillebrand v. McMahan, 59 T. 450. This case is followed in Newton v. Heiden- heimer, 2 App. C. C., 126, where it is held that a county court may enforce an attachment lien on land; but in other cases the contrary view is held. Shandy v. Conrales, 1 App. C. C., 238; Rowan v. Shapard, 2 App. C. C., 295, 302; Miller v. Schneider, id., 372; Wright v. Cullers, id., 750. This conflict of opin- ion, it is said, gave occasion for the statute of 1885. R. S. 214. A citizen of Georgia sued another citizen of that state in the county court of Montgomery county, Texas, to recover upon promissory notes, and foreclose an attachment upon land in said county. The county court had jurisdiction to cause the levy of the writ upon the land, and to enforce the levy by foreclosure, Grizzard v. Brown, 2 Civ. App. 584 (22 S. W. Rep. 252). 6 Joiner v. Perkins, 59 T. 300; Handel v. Elliott, 60 T. 145; Lacroix. v. Evans, 1 App. C. C,, 673; T. & P. Ry. Co. v. McMullen, id., 161. 113.] I.I-IIM. I AN' 129 in-; them to be personal property. tin- c.>unty court lias no jurisdic- tion. 1 Where. before a chattel iimrtu 1 iven thereon, machin- mcfa M a corn mill, steam-eno;ine, and press, with belting, etc., is so attached to realty as to become a fixture, and part thereof, tho county court is \vithoiit jurisdiction to foreclose such mortgage. 2 A comity court has no jurisdiction of a suit to enforce a lion on the and mad-bed ..f a railroad. 1 113. Trial of the right of property. Tht> courts point out a conflict I ><>t ween the provisions of the con- stitution cont'crriiii: jurisdiction on the district and county courts. Jurisdiction is given to the district court where the amount in con- troversy shall be equal to or exceed in value s." ..... . and exclusive jurisdiction is given to the county court when the amount is | lint const ruinir section 8 of article V with section 10 of article V of the constitution, under the rule which requires that a general pro- vision shall yield to a special provision, it is held that the district courts have jurisdiction of all suits for the trial of the right of property levied on by any writ of sequestration or attachment, when the property levied on shall be equal to or exceed in value That jurisdiction was excepted out of the jurisdiction given to the county courts by the same article. Articles 1098 and 1157 of the Revised Statutes, delminir the jurisdiction of the district and county courts, are in accordance with the true construction of tho constitutional provisions above referred to; and so much of article 5995, Revised Statutes, as attempts to confer jurisdiction in such on the county court, when the property is of the value of . is inoperative and void. 4 It is held, however, that where the levy on property is under a distress warrant, and not by virtue of a writ of execution, sequestration or attachment, the county court lias jurisdiction where the property is valued at *500. 4 The assessment of value placed on property by the officer who hi v. Brown. A pp. C. C., 541. try \. Bowser, -' Civ. A pp. 388 (21 S. W. Rep. 5C9). A writ of s.p. timi. issui-d in ;m action in the county court to foreclose a chattel mortgage, li ivinir I een levied (.11 certain machinery, the defendant pleaded that such ma- chinery was a fixture t<> realty, and attached as such to his hject-matter of tin- suit, whether the allegation discloa- want of Mich jurisdiction appeared in the petition or in the anawec, T. ,v P. By. Co, v'. Mc.Mullen. 1 A pp. Q CL, ? ITS. Erwin v. Blanks. r,n T. B88; 'l.-vdand v. Tuft-, r.'.i T. r.^i ( t S. \V. H, ; Maraalia, " T. ;-j (ij s. \v. i;.-,,. 686); w.-tz.-l v. Biota - S. W. ton v. Bchob, s "> 'l\ HI M ft \\". i;. p H : ll.-idenheimer v. KempiuT. 1 App.C. a, g i:-.': C...Idard v. 1'n.l-r-. 1 App. C. C., 1T3. *St. Louis Typ Foundry v. Taylor, 6 C'iv. App. 7:W (2 S. W. Rep. 226). 9 130 JURISDICTION. [ 114, 115. seizes it under attachment should determine the jurisdiction on the trial of the right of property, and not its value as subsequently as- certained on trial. 1 Where no indorsement of value is made upon the claim bond, the statements of value in the affidavit and bond are sufficient to determine the question of jurisdiction. 2 Where the action is simply an action of sequestration, and there is no trial of the right of property, the county court has jurisdic- tion though the value of the property is in excess of 114. Trial of right to office. The district court has jurisdiction to try the right to an office in a suit brought for its recovery by a party claiming a right to it as- against one who has usurped the office and holds possession of it wrongfully, provided its value is $500, or more. 4 Where a person was elected and qualified as mayor of a city, the office at the time having no salary or compensation, but the city council afterwards,, under a provision of the charter, fixed the salary at $1,200, it was held that this invested the office with a value which entitled the person to his action in the district court for the trial of the right to the office. 5 115. Eemoval from office. The district court has original jurisdiction of all misdemeanors involving official misconduct, 6 and the statute mentions certain offi- cers that may be removed from office by. the district judge. 7 The district court has jurisdiction to determine whether a county treasurer has been guilty of such official misconduct as would au- thorize his removal in a suit brought by the state having that ob- ject in view, and, if guilty, it has the power to remove him. In such a suit the defendant may show that the acts which are charged to have constituted " official misconduct " were legal acts ; or, if not legal, that they were done under circumstances which negatived the idea of wilful wrong. 8 i Cleveland v. Tufts, 69 T. 580 (7 S. W. Rep. 72); Carney v. Marsalis, 77 T. 62 (13 S. W. Rep. 636); Harris v. Hood, 1 App. C. C., 573. 2Leman v. Borden, 83 T. 620 (19 S. W. Rep. 160). 3 Morrow v. Short, 3 App. C. C. 31. State v. Owens, 63 T. 261; McAllen v. Rhodes, 65 T. 348; Bell v. Faulkner, 84 T. 187 (19 S. W. Rep. 480). Krakauer v. Caples, 5 Civ. App. 264 (23 S. W. Rep. 1036). 6 Const., art. V, 8. 7 R, S. 3531. 8 Caruthers v. State, 67 T. 132 (2 S. W. Rep. 91). In this case it is said, " there can be no question as to the jurisdiction of the district court. . . . The pro- ceeding is one to take from the appellant an office a thing of value to which he was elected by the people," but no other reason is assigned for holding the jurisdiction to be in the district court. i>, 117.] UICT AND COUNTY COUETS. 131 116. Motions against officers of court. 'I'll.- district court has power to hear and determine all motions ist sheriffs ami other officers of the court for failure to pay over moneys collected under the process of said court, or other de- falcation of duty in connection with such process, and of motions ttorneys for moneys collected by thorn and not paid ov.-r. 1 The same power is also conferred upon county courts, with the ex- ion of the provision in respect to attorne Motions against officers for failure to indorse the time of receiv- ing executions, or for making a false indorsement, are made in the court from which the execution issued ; 3 also for refusal to pay over money collected on execution ; 4 or for failure to levy and sell ; 5 or failure to return an execution. 8 S 117. Jurisdiction in equity. The jurisdiction vested in the district and county courts may be exercised without regard to any distinction between law and equity, and they may grant any relief which could be granted by courts either of law or equity. 7 i R S. 1100. 2RS. 1160. R. - R - ' Witt v. Dunn, 15 T. 106; Beaver v. Batte, 19 T. Ill; De La v. Hooth, 28 T. 478. R S. 2386. R S. 2387. " Const., art. V. ? $; R S. 1106. 1162, 1191. Before the enactment of the stat- ute of 1895, it was held that a district court had no power to try cases of con- : election for county seats, and that a court of equity would not try and determine such a question on an application for injunction in cases involving the right to an office. If, however, the action has its basis in the assertion of a ri^ht involving pecuniary interest not originating in the election, it is held that an inquiry can be made as to the legal effect of an election when the election is s-t up to defeat such a ri^ht; in su<-h a suit, whatever may be the form of ac- tion, the vote on removing a county seat could be inquired into and its proper fleet determined. Caruthers v. Harnett. 07 T. l.i .' 8. \\". !: : 1895, page 58, for provisions for contesting flections. R S to set aside a judgment of the supreme court, affirming a judgment of the : court ajrainst hiin^-lf :ind another .!< -mvti,^ on the appeal bond, and to enjoin the execution isMied thereunder. uj>on the Around that tin- ap| al bond purpott- have been executed by him had never U-en signed by him. and that his signature to it was forged. It was held that, if the facts a! \\ n to be true, the execution might be perpetually enjoined, and that the district court had jurisdiction of the suit to enjoin. The supreme court could obtain jm tion over the person of the plaintiff in error as surety on the appeal bund by his voluntary act in signing it; but if in fact he never signed it, he never became a to the proceeding, and no power to render a judgment against him was ever obtained by the supreme court. The original jurisdiction properly belonging to courts of equity is vested in the district court. The supreme court possesses no such powers. Its jurisdiction is appellate, and hence, when the aid of equity is sought to afford relief to which a party is entitled against its judgments, the 132 JURISDICTION". [ 118. The right of a judgment creditor to apply by motion to the court in which his judgment was obtained to set aside a sale which, through irregularities in making it, has resulted in a sacrifice of the property, has been recognized by our supreme court in many cases. Courts of equity have always entertained such motions. The rea- son for the exercise of such a power over a purchaser who is a stranger to the original suit is that by a purchase under its process he submits himself to the jurisdiction of the court over such pro- cess, and becomes subject to its power to revoke an improper sale. The jurisdiction is simply that which the court obtained over the subject-matter in the original action. By the rendition of the judgment it was not exhausted, but continued in full force in order to secure to the plaintiff the fruits of his recovery. It required the issuance and lawful execution of process, and involved the power to control the sheriff in the performance of his duty, and to pre- vent not only him but all other persons from abusing the writ. A purchaser under its writ took such title as he thereby obtained subject to the power in the court to see that the sale was properly and lawfully conducted, and to revoke it if it was not. The fact that the sale was made and the purchaser resided in another county cannot affect this power. To hold that it does would cripple the power of the court to render complete relief to the party who had secured its judgment, and make its decrees dependent on the action of other tribunals for adequate enforcement. The statutes regulating venue have reference to original actions, and not to such auxiliary proceedings as are involved in the exercise of jurisdiction in cases over which it has already vested. 1 The district court has no jurisdiction to decree the cancellation of a deed for the sale of land on the ground of fraud in the vendor, when the purchase-money, exclusive of interest, the recov- ery of which is sought, is less than 8500, there being no controversy involving title, a reconveyance of the title being tendered by the plaintiff. 2 118. Power to issue writs. The district courts and the judges thereof have power to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction. 3 The county court or judge thereof has power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of the district court and not the supreme court is the proper forum in which to insti- tute the proceedings. Stapleton v. Wilcox, 2 Civ. App. 542 (21 S. W. Rep. 972). 1 Hansbro v. Blum, 3 Civ. App. 103 (21 S. \7. Rep. 270). 2 Mixan v. Grove, 59 T. 573. 2 Const, art. V, 8. 118.] :.n r AM- i-'-rxTv COURTS. 133 court. 1 The statutory provision is. that tin- judges of the <1N and county courts shall have authority, either in term time or in vacation, to grant writs of ///-////////// //*, injunction, sequestration, attachment, ^arnislnnent, , ///../,///' and *HJ>, /*. / no power to enjoin a tax or a judgment for less than $200, 6 nor to issue a ////-//// //.v unless the amount involved be within its jurisdiction. 7 ,It is held that the authority uiven to the district courts to issue the writs mentioned is a general authority, and that the power to issue all other writs necessary to enforce their jurisdiction is superadded." This would appear to be the obvious and necessary construction of 1 Const., art. V, g 16. 2RS. HOT, lit;.;. 'Legate v. Legate, S T I". > H (28 a W. Rep. 281). And see Stirman v. Turner, 4 Ap|>. C. 0.. 140. when' it was held that tin- county murl lia>l jurisdiction M issue a writ of habeas corjiii* on the allegation by a father that his minor child !1. orally restrained of his liberty. <>n the ground that tli- offense charged was within the jurisdiction of tin- court. And ( -rs,,n County v. K.-mu-dy. :* T. fill}; Alexander v. Holt. .V. T. -'"-.; Day v. Chaml..-,,. (5-j T. UMI : St.-in v. Kr.-iJ..-rtf. fit T. -j;i: K f .-l r.Jobl Mi udrick v. Sin.;,. 1 .\|i|i. C. C.. X'.M-.': JJrsint v. guinn. id.. ? : Omv.-s \. Fry. 1 A].|.. ( '. (\. IMI: Moi-ki-r-niith v. I.on-. id., .x .V, I ; rind.-n- M<,-k v. McKrllar. id., jj Bfl7; ':irlil.- \. Kldri.lK' 1 . ' " v - Vninj;. id.. r.MO; Lackie v. Hraml.-tt. id.. ? n rM r.8m*lLkL, UM: M.-Mnhan % I'.-nnis. id., i TJn'.c r..-w--r v. \Viil,-tt. id.. , . J91. :-* v. I)U].r.-r. 1 A|.|.. I v v. I'liaiul-r-. ;.' T. 190. 13 JURISDICTION. [ 118. the language used, and it is not apparent from the cases on what particular provision of the constitution the distinction between the respective powers of the courts is based. The ruling is, however, that the power vested in the county courts is not a general power, 1 but that they have power to issue a writ of injunction only to en- force their jurisdiction, or as an auxiliary to some proceeding within, their jurisdiction; 2 . and that it appears, from a fair construction of the language used, that in conferring the power on county courts the intention was to limit its exercise to the enforcement of the ju- risdiction of the court. 3 In a proceeding to enjoin a state tax on real estate, objection was made to the jurisdiction of the district court on account of the amount in controversy. The court say : " If the petition stated a case in which, on settled principles, equity would interpose to pre- vent the collection of a state tax by enjoining the sale about to be made, it would be strange, indeed, if tho district court, in a case affecting the title to land, and the enforcement of a lien on land, should have no power to grant relief. The amount involved being still too small, the county court would be also without jurisdiction, and the remedy, if any, would be in the justice's court. This re- sult is one which, in a case requiring it, might well cause a careful review of the decisions claimed to lead to it." 4 It will be per- ceived that the difficulty is not met and overcome here, because the power, after all, is referred to the grant of jurisdiction to the dis- trict court to adjudicate in matters in which title to real estate is involved. If it had been a proceeding to enjoin the execution of a judgment, the subject-matter or amount in controversy not be- ing within the jurisdiction of a district or county court, then the result would certainly have required a review of the cases. The difficulty arose from the construction of the grant of power to issue writs in holding that they could be issued only to enforce the jurisdiction of the court in cases in which jurisdiction had been expressly conferred, and the difficulty was never fully stated until the case of Day v. Chambers, 5 where it is expressly held that a general authority is given to the district courts to issue the writs 1 Grant v. Quinsell, 1 App. C. C., g 733. 2 Lackie v. Bramlett, 1 App. C. C., 1129. 3 Bowser v. Willett, 1 App. C. C., 401. 4 Red v. Johnson, 53 T. 284. For a case in point see Wheeler & Wilson Mfg. Co. v. Whitener, 2 App. C. C., 15. In this case Whitener had a judgment in a justice's court against the company for $125, upon which execution issued and was levied upon certain property of the company valued at 400. The company obtained an injunction from the county judge enjoining the enforcement of the judgment, and upon a hearing it was held that the amount in controversy was the amount of the justice's judgment, and that the county court had no juris- diction to grant the injunction. *62T. 190. ;! 1 IS.] HIM ; COURTS. of //- unction and ri nd that the further power AAV, to issue all writs n< to enforce their jui tion. This construction is also recognized in a later case in tho court of civil appeals, where a writ of prohibition was applied for to prevent proceedings in a justice's court. The reasoning of tho court appears plainly to be that the district court has a general authority to issue the writs enumerated, and all other writs that may be necessary to enforce its jurisdiction; that as the writ of prohibition is not one of the enumerated writs, it cannot be is- under its general authority, but only in aid of its jurisdiction in a case over which jurisdiction is conferred by some other pro- :i. The court say: "If the provision of the constitution in ion had included prohibition, as it did injunction and the other named writs, it would have been within the jurisdiction of the dis- trict court to issue such writs in all cases that were permitted under the principles and usages of common law and equity practice." l So it seems that as respects writs of injunction, at least, the re- sult of the cases is this: If equitable grounds are stated in the bill, the district court may issue the writ without reference to the sub- ject-matter or amount in controversy; if the power of the court is invoked in respect to a matter of legal cognizance simply, which it may adjudicate by virtue of its constitutional jurisdiction, then reference must be had to the subject-matter or the amount in con- troversy to determine whether the district or the county court is the proper forum. Article _".<>', of the Revised Statutes provides that the judges of the district and county courts may grant writs of injunction (1) when it appears that the party applying is entitled to the relief de- manded, and such relief, or any part thereof, requires the restraint of some act prejudicial to the applicant, (2) to restrain acts pending litigation, and i.oj k% in all other cases where the applicant for such writ may show himself entitled thereto under the principles of equity." In a proceeding by fuibeaa corpus by a father, alleging that his minor child was illegally restrained of his liberty, the court >;iy : Kven if the power to issue the writ must be limited to cases in which that process is necessary to enforce the jurisdiction of the court, we think this case would come within the scope of such 1 Seele v. State, 1 Civ. App. 495 (20 S. W. Rep. 946). The district court issued an injunction to enjoin a judgment of a justice of the peace for $10, on tho ground that the judgment was void for want of service of citation, an.l it WM* h -Id that thf injunction was properly grant*-'!, and the court, having aciiuin-d jurisdiction by reason of its i>tr, r to grant th? injunction, rouM i>r' < I to try the cause, although the amount was helow its jurisdiction. O.. C. & S. F. Ky. Co. v. Srhn.-id.-r. > S. \V. Rep. 200. To the same eftV kman v. White, 29 S, W. Rep. 69i 136 JURISDICTION. [ 119, power," on the ground that county courts are given a general juris- diction over the estates of minors. 1 The district court has jurisdiction of a quo warranto brought on the relation of an individual to test the validity of a reorganization of a municipal corporation. 2 Where defendant attached a debtor's goods in a justice court and plaintiff sued out an attachment against goods of the same debtor in the county court a short time thereafter, it was held that if the attachment of defendant was in fact void its execution could be prevented by proper proceedings in the county court cause, and that plaintiff could not enjoin its execution in the district court under section 8, article Y, of the constitution, giving that court jurisdiction where the law or constitution affords no remedy ; the cause of action being within the jurisdiction of the county court, that court had power to enjoin the execution of an order of sale. 3 The county court may issue a writ of sequestration for the re- covery of specific personal property, where the property does not exceed $1,000 in value, the controversy being solely between plaint- iff and defendant. 4 119. Appellate and supervisory jurisdiction of the district courts. The district court has appellate jurisdiction and general control in probate matters over the county court established in each county for appointing guardians, granting letters testamentary and of ad- ministration, probating wills, for settling the accounts of executors, administrators and guardians, and for the transaction of all busi- ness appertaining to estates; and original jurisdiction and general control over executors, administrators, guardians and minors, under such regulations as may be prescribed by law. It has appellate ju- risdiction and general supervisory control over the county commis- sioners' court, with such exceptions and under such regulations as- may be prescribed by law. 5 In all counties in which the civil and criminal jurisdiction, or either, of the county courts has been transferred to the district courts, appeals and writs of certiorari may be prosecuted to remove a case tried before a justice of the peace to the district court, in the same manner and under the same circumstances under which appeals and writs of certiorari are allowed by general law to remove causes, to the county court. 6 1 Stirman v. Turner, 4 App. C. C., 140 2 State v. Dunson, 71 T. 65 (9 S. W. Rep. 103). 'McRimmon v. Moody, 87 T. 260 (27 S. W. Reo. 780X * Morrow v. Short, 3 App. C. C., 31. 5 Const., art. V, 8. 6 R. S. 1669. 119.] AND COrXTY CO! Under the constitution of 1845 the district courts had the power -ne all writs necessary to euforce their own jurisdiction, and to giv.- tin-in ovncral ropnintendenoe and control over inferior juris- dictions. P>ut a supervisory control is not conferred by the consti- tution of l^7''-. either 1>>" the power to issue writs or otherwise. I'nder the old constitution writs of injunction were resorted to where the remedial power of a court of chancery would lie author- iut the most common remedy to supervise proceedings of in- ' courts was by , rin>,->i r'< } But the jKjwer of the district court to interfere was always referred to the power to issue writs to give it superintendence and control over inferior courts. The district court can now issue writs of injunction where by the established rul.-s of equity they would be awarded: and the right to grant t he- writ carries with it tire jurisdiction to which the writ applies in chancery courts, and no more, and this without regard to amount/ It is held that the present constitution, in the grant of power to issue writs of in junction, granted to the district court all the equity powers conferred upon chancery courts in such cases, without re- L r anl to amount; 1 but the cases in which this view was announced were not cases where the jurisdiction of inferior tribunals or the validity of their judgments were brought in question, but were cases in which the original jurisdiction of the district court was invoked for the purpose of preventing the commission of unlawful acts where there was no remedy at law. AVherever, therefore, the judg- ments and proceedings of an inferior tribunal are complained of as erroneous in respect to matters over which the tribunal l^as the power to adjudicate, the error must be corrected by the appropriate remedy of appeal, if such remedy is given, and if not, the judgment is final and conclusive. 4 The district court has no power to grant and perpetuate a writ of prohibition against proceedings about to be had in a justice's court. 5 wsom v. Chrisman, 9 T. 115; Smith v. Smith, 11 T. 102; Rotzein v. Cox, 63. Anderson County v. Kennedy, 5S T. 616; Red v. Johnson, 53 T. 284; Dauen- hau.-r v. D.-vin,-. .".1 T. 480. Set- ? 11^. M//*m. 'Anderson County v. Kennedy, 58 T. 016; Alexander v. Holt, 59 T. 205; Day v. rharnh-rs >-,' T. 191. H < ( ;.. II. A. s. A. Hy. Co. v. Dowe-flBd T. 1. :t. Seele v. State, 1 Civ. A pp. l'.f> rjn s. \V. R.*p. 946). Where a case appealed from tin- county to tin- district < "iirt. ami an original suit U-twi-.-n the same i^n-fiiifnt consolidated and lu-anl t'-i;- tln-r. th- district rurt htt jurisdiction to make such order M tin- r..unty court mi^ht hu\.- m i well as to adjii'iicat.- t'lf .|U.-tic.ns at issut- in tin- Miit originally instituted iu that court. V,-al v. Forts.-n. oT T Where a county coniiuissioners' court orl.-rfl a tlnr-l-class rcxid to be changed into oue of the second class, without complying with the statutory enactments- 138 JURISDICTION. [ 120. 120. Appellate jurisdiction of county courts. County courts have appellate jurisdiction in cases civil and crim- inal of which 'justice courts have original jurisdiction, but of such civil cases only when the judgment of the court appealed from shall exceed $20, exclusive of cost, under such regulations as may be pre- scribed by law. 1 The statute provides that " the county court shall have appellate jurisdiction in civil cases over which the justices' courts have original jurisdiction, when the judgment of the court appealed from or the amount in controversy shall exceed twenty dollars, exclusive of costs." 2 It also has power to hear and deter- mine cases brought up from the justices' courts by certiorari under the provisions of the title relating thereto. 3 An appeal lies from a justice's court if the amount in controversy is over $20, though the judgment may be foj" less than $20. 4 And where a defendant interposes a counter-claim amounting to more than $20, and judgment goes against him, he may appeal, though the amount sued for by plaintiff is less than $20. 5 The court of civil appeals for the third district holds that in damage suits against railroad companies the statutory attorney's fee allowed cannot be added to the amount in controversy to confer jurisdiction on ap- peal ; 6 the court in the first district holds that it may be added. 7 Under the power vested in the legislature to increase, diminish or change the jurisdiction of the county court, it is held that the statute authorizing an appeal when the amount in controversy ex- ceeds $20 is valid, though the constitution authorizes an appeal only when the judgment exceeds that sum. 8 It will be noticed the constitution reads, " When the judgment of the court appealed in regard to establishing public roads and compensating the owners of land over which they pass, it was held: (1) That the opening a second-class road im- posed greater burdens upon the land than would have been imposed by the open- ing of a third-class road. (2) That such a taking without compensation to the owner is in violation of article I, section 17, of the constitution. (3) That had the county court proceeded as required by statute, the district court would have had no appellate jurisdiction over its decisions; but if it proceeded con- trary to the statutes, the district court had jurisdiction. Bounds v. Kirven, 63 T. 159. Under article 4693 of the Revised Statutes, the district court has no appellate jurisdiction from awards of the county commissioners' court allowing damages incident to the opening of public roads. Taylor v. Travis County, 77 T. 333 (14 S. W. Rep. 137). i Const, art. V, 16. 2R. S. 1158, 1668. R. S. 341, 1159. y a juror for one week during the same term of the court at which he is again offered as a juror is not a good ground of challenge for cause. 5 ;;' 122. Jurors disqualified to try a particular case. The following persons are disqualified to serve as jurors in any particular case: 1. Any witness in the case. 2. Any person interested directly or indirectly in the subject- matter of the suit. 3. Any person related by consanguinity or affinity within the third degree to either of the parties to the suit. 4. Any person who has a bias or prejudice in favor of or against either of the parties. 5. Any person who has sat as a petit juror in a former trial of the same case, or of another case involving the same questions of It was not the intention of the statute to disqualify as a juror any person who might happen to be subptunaed in a case if he was not examined as a witness. 7 That a juror lives upon the land in- volved so as to be interested in the particular suit, or is related within the third degree to any of the parties, is a sufficient o tion against him individually, but does not require the quashini: of the panel. 8 That the sister and the niece of a juror are the wives of ' R a 3138, 3139. * R S. 791. Blanton v. May.-s. 7i T. 417 (10 S. W. Rep. 452). .iistt-r v. LA Londe, 57 T. 28. ;-t.!i Wat. r u,-rks Co. v. Harris, 3 Ci% . Rep. 46). See : App. 640: Tut tie v. Statv. i A pp. 556; Corcia v. State, 5 A YV.-Mi v. Stat.-. :; App. 414. &&814L 7 East Line & R R Ry. Co. v. Brinker, 68 T. 500 (3 S. W. Rep. 99). 8 Veramendi v. Hutching, 56 T. 414. 142 JURORS HOW SELECTED AND SUMMONED. [ 122, two of the brothers of a party to a suit constitutes no ground of dis- qualification. 1 A juror whose wife's sister is the wife of a plaintiff to a suit at the time of trial may, in action by such plaintiff for the recovery of damages for personal injuries, be challenged for cause. The damages, when recovered, would be community property of the plaintiff and his wife, and she, though not a nominal party,, would be substantially a party to the suit. In examining a juror on his voir dire, it is not improper to ask him if he knows anything about the facts of the case or if he has made up his mind about the case. The examination need not be confined to the literal language of the statute, but may extend to an inquiry as to the bias or preju- dice relating to the subject-matter of the litigation as well as to that which may be felt toward the parties personally. A refusal to allow such examination touching the qualification of a juror affords cause for reversal. 2 Parties should be allowed full opportunity to ascertain the real state of feeling existing between proposed jurors and the respective litigants, both to guide them in making their peremptory challenges, and also to enable the court to decide as to whether or not the bias or prejudice which disqualifies exists. Impertinent questions, the answers to which will not materially aid in these objects, should be excluded, j^o rule applicable to all cases can be prescribed as to the extent to which the inquiry should be allowed. 3 1 Johnson v. Richardson, 52 T. 481. 2 H. & T. C. Ry. Co. v. Terrell, 69 T. 650 (7 S. W. Rep. 670). Reference is made in this case to article 3208, Revised Statutes, which provides that " a challenge for cause is an objection made to a particular juror, alleging some fact which under the provision of the first chapter of this title disqualifies him to serve as juror in any case, or in that particular case, or which, in the opinion of the court, renders him an unfit person to sit on the jury." See State v. Mann, 83 Mo. 589; Willis v. State, 12 Ga. 444; Pierce v. State, 13 N. H. 536; Hiatt v. Insuranc? Co., 2 Dill. 572. In the trial of a suit for the breach of the conditions of a liquor-dealer's bond, it is not a cause of challenge to a juror that he lias a bias in favor of, or a prej- udice against, the business or occupation of selling liquors at retail, and it is not error to refuse to permit the jurors to be questioned as to such bias or prej- dice. Grady v. Rogan, 2 App. C. C., 263. That a juror had been in the em- ploy of the plaintiff about a year before the trial will not authorize the presump- tion that he is biased in favor of the plaintiff. E. L. & R. R. Ry. Co. v. Brinker, 68 T. 500 (3 S. W. Rep. 99). 3 It is held in this case that in an action against a bank it would not be im- proper to permit plaintiff to ask a juror on his voir dire whether he is indebted to the bank. Davis v. Panhandle Nat. Bank, 29 S. W. Rep. 926. Where a ten- ant is joined as a defendant in trespass to try title and disclaims, but still has an interest in the improvements, which the other parties have agreed to pay in case of success, he is a party in interest to the suit, and his brother is incompe- tent to sit as a juror, Davidson v. Wallingford, 30 S. W. Rep. 286. In examin- ing jurors on their voir dire, parties have the right to ask them if they are members of the order of Knights of Pythias or Odd Fellows; but an error in prohibiting such an inquiry is harmless where no injury is shown to have re- : '. ll'4.J JLKORS II FED AND 8UMMu> 143 A party failing to make any effort to ascertain whether jurors tendered are impartial cannot on motion for new trial complain on that ground. 1 23. Who are exempt. All competent jurors are liable to jury service, except the follow- ing persons: 1. All persons over sixty years of age. 2. All civil officers of this state and of the United States. 3. All overseers of roads. 4. All ministers of the gospel engaged in the active discharge of their ministerial duties. 5. All physicians and attorneys engaged in actual practice. 6. All publishers of newspapers, school-masters, druggists, under- takers, telegraph operators, railroad station agents, ferrymen, and all millers engaged in grist, flouring and saw mills. 7. All presidents, vice-presidents, conductors and engineers of rail- Toad companies when engaged in the regular and actual discharge of the duties of their respective positions. 8. Any person who has acted as jury commissioner within the preceding twelve months. 9. All members of the volunteer guards of this state under the provisions of the title " Militia." (Revised Statutes, 3459 10. In cities and towns having a population of fifteen hundred or more inhabitants, according to the preceding United States census, the active members of organized fire companies, not to exceed twenty to each one thousand of such inhabitants. If there be more than one organized fire company in a town or city, the exemptions shall be equally divided between them. The members to be ex- empted must be selected by their companies, and their names must !' handed to the clerks of the district and county courts respect- ively, ly the chief of the fire department, and if there be no such <>Hicer, then by the foreman of the company. 2 Notaries public are not exempted by the law authorizing their appointment. 1 124. Jury commissioners; their qualifications. The district court of each county, at each term thereof, is iv<|iiiivil to appoint three persons to perform the duties of jury comini- ers. The county court at its first term after the 81| >f De- suited to the party complaining. Burgess v. Singer Mfg. Co., 80 S. W. Rep. 1110. 1 Blanton v. Hayes, 72 T. 417 (10 S. W. Rep. 452); Rector v. Hudson McGehee % ' T. 20; Boetge v. Landa, 22 T. lOo; Tweedy v. Briggs, 31 T. 7 J. *R, S. 3142-3144. R. & 3003. 144 JUKORS HOW SELECTED AND SUMMONED. [ 125, 126. cenibcr and the 30th {lay of June appoints a like number to perform the duties of jury commissioners for that court. 1 The qualifications of jury commissioners are as follows: 1. They shall be intelligent citizens of the county, and able to read and write. 2. They shall be qualified jurors and freeholders of the county. 3. They shall be residents of different portions of the county. 4. They shall have no suit in the court which requires the inter- vention of a jury. The same person shall not act as jury commissioner more than once in the same year. 2 The district court has power to appoint jury commissioners at any time to supply jurors necessary to the trial of causes before it. But the more regular mode would be to reconvene the jury com- missioners for the term than to appoint a new commission. 3 125. Notice to and attendance of commissioners. The court must cause the persons appointed as jury commission- ers to be notified by the sheriff or any constable of their appoint- ment, and of the time and place when and where they are to ap- pear before the court. If any person appointed a jury commissioner fail or refuse to attend and perform the duties required without a reasonable excuse, he may be fined by the court in any sum not less than $25 nor more than $100. 4 126. Oath of commissioners in district court. "When the persons appointed appear before the court, the judge must administer to them the following oath : " You do swear faith- fully to discharge the duties required of you as jury commissioners; that you will not knowingly elect any man as a juryman whom you believe to be unfit and not qualified; that you will not make known to any one the name of any juryman selected by you and i R. S. 3145, 3155. 2R. S. 3145,3146. 3 Roundtree v. Gilroy, 57 T. 176. The jurors for the term of the court at which this cause was tried were selected for the second and third weeks of the term, at the beginning of the term, by jury commissioners then appointed instead of at the preceding term. The court continuing in session longer than three weeks, the judge appointed other commissioners, who selected jurors for the remainder of the term. The proper proceeding would have been to reconvene the commissioners at first adopted, but the method adopted was held to be at most only an irregularity. The fact that the father of a jury commissioner is or has been a party to the suit, or that the commissioner is a merchant doing business in the vicinity of the land in litigation, and several of the defendants trade with him, are neither of them objections which disqualify a commissioner or good ground for quash- ing the panel of petit jurors. Veramendi v. Hutchins, 56 T. 414. 4 R. S. 3147, 3148. 7. 128 .. ..- HOW SELECTED AND S! MM"NED. 14." lie court; that you \vill not, directly or indirectly, con- \vith ;uiy one selected by you as a juryman concerning the merits of any case to be tried at the next term of this court until after said cause may be tried or continued, or the jury disc; 127. Oath of commissioners in county court. - Y>u do solemnly swear faithfully to discharge the duties re- quired of \""ii ;i> jury commissioners; that you will not knowing! v -lrrt any man as a juryman whom you believe to be unfit and not qualified: that yon will not make known to any one the name of any juryman selected by you and reported to the court; that will not, directly or indirectly, communicate with any one selected by you as a juryman concerning the merits of any case to be tried by this court within the next six months, until said case shall have been tried or otherwise disposed of." 2 g 128. Procedure where no commissioners are appointed or no se- lection of jurors is made, etc. If from any cause jury commissioners are not appointed at the time prescribed, or fail to select jurors as required, or if the panels selected be set aside, or the jury lists returned into court be lost or destroyed, the court is required forthwith to proceed to supply a sufficient number of jurors for the term under the provisions of the statute, and may, when it may be deemed necessary, appoint com- :<>ners for that purpose. 1 By the terms of this article it is held that the court may admin- ister the statutory oath to the sheriff and instruct him to summon a jury, if, from any cause, a jury has not been obtained through the jury commissioners. 4 This is contrary to the rule laid down in Daniel v. Bridges, 73 T. 149. It is there said that if, from any cause, a sufficient number of jurors drawn by the commissioners are not in attendance, or the panels are reduced below a number ade- quate to the demands of the docket, the sheriff may be directed, after the proper oath is administered to him, to supply the defi- ciency; but that the law invests no court with the power to order the sheriff to summon a venire for the trial of a civil cause. It will be noticed, however, that the court, in arriving at this result, mis- quotes the above article of the statute. And this fact, it seems, led to the erroneous ruling in the former opinion in Smith v. Bates, as reported in 27 S. W. Rep. IRS. 3149. 1 R S. 3150. A form of oath is prescribed by statute where the sheriff is di- rected to summon jurors who hare not been selected by commissioners. R S. 8184 See infra, 10a Smith v. Bates, 88 S. W. Rejx 64 10 146 JURORS HOW SELECTED AXD SUMMONED. [ 129-131. 129. Sessions of commissioners; duty of clerks. When the jury commissioners have been sworn and organized, the judge must instruct them as to their duties and designate to them for what weeks they shall select petit jurors, and the number of jurors to be selected for each week. The commissioners must retire in charge of the sheriff or constable to some suitable apart- ment, and be kept free from the intrusion of any person during their session, and must not separate, without leave of the court, until they have completed the duties required of them. It is the duty of the clerk to furnish the jury commissioners with all necessary stationery, and also with a list of names of all persons appearing from the records of the court to be exempt or disqualified from serving on the petit jury at each term. He must also deliver to them the envelope mentioned in article 3171 of the Revised Stat- utes l and take their receipt therefor, showing whether or not such seal remained unbroken. It is the duty of the county clerk, or other legal custodian of the same, to furnish the jury commissioners with the last assessment roll of the county. 2 130. Selection of jurors. It is the duty of the jury commissioners to select from the citi- zens of the different portions of the county, liable to serve as jurors, one hundred persons, or a greater or less number if so di- rected by the court, free from all legal exceptions, of good moral character, of sound judgment, well informed, and, so far as prac- ticable, able to read and write, 3 to serve as petit jurors at the next term if in the district court, and for the next six months if in the county court, and write the names of such persons on separate pieces of paper, as near the same size and appearance as may be, and fold the papers so that the names cannot be seen. 4 The commissioners for the county court select jurors for all the terms of the county court to be held within six months next after the adjournment of the first term of the court after the 31st day of December and the 30th day of June of each year, and the county judge must designate the number of jurors to be selected for each term and week. 8 131. Drawing of jurors; lists, how made out and delivered. The names of the persons selected, written and folded as directed in the preceding section, are deposited in a box, and, after being 1 See 133, infra. 2 R S. 3151-3154. 8 This provision may be dispensed with when the requisite number of jurors able to read and write cannot be found within the county. R. S. 3UO. See 121, supra. * R. S. 3158. 5R.S. 3157. AM> >IMM<>NKI>. H7 well shaken and mixed, the OOQimiflBIOllCftl draw therefrom the name-,, one hy one, of thirty-six persons, or a irreater or le>s number win-re the judge has so direi-letl, for each week of the term of the district court, or terms of the county court for which a jury may be re(|iiired, and record such names as they are drawn upon as many separate >heets of paper as there are weeks of such terra or UB for which juries are required. The several lists of naim s drawn must he certified under the hands of the commissioners to he the lists drawn by them for said several weeks, and must be sealed up in separate envelopes, indorsed, "List of petit jurors for the > of the - - term of the - court of - - count" ///. M'iiik#\. The commissioners write their names across the seals of the envelopes and deliver them to the judge. The judge delivers the envelopes to the clerk or to one of his dcp- in open court, and the court may instruct the clerk to indorse on any of such envelopes that the jury for that week shall be sum- moned for some other day than Monday of said week. 1 i 132. Clerk and deputies to be sworn. The judge, at the time of delivering to the clerk the envelopes containing the lists of jurors, as directed in the preceding section, must administer to the clerk and each of his deputies {in oath, in substance as follows: "You do solemnly swear that you will not open the jury lists now delivered to you, nor permit them to be opened until the time prescribed bylaw; that you will not directly nor indirectly converse or communicate with any one selected juror concerning any case pending for trial in this court at its next term," if in the district court; or if in the county court, "within the next six months." If for any reason such oath should not be ad- ministered to any of the deputies, or should the clerk subsequently appoint a deputy, the clerk must administer to such deputy a like oath. 2 133. List of names of jurors selected in one court to be furnished to commissioners of the other. In order to prevent a conflict in the selection of jurors in the dis- trict and county courts, the jury commissioners of each court are required to make a list of the names of the grand and petit jurors ed by them, for the use of the commissioners of the other court. This list is placed by the commissioners in an envelope and sealed up: the commissioners write their names across the seal, ad- - the envelope to the commissioners of the other proper court, and deliver it to the judge of the court in which they are aetim:, in open court. It is the duty of the judge without delay to deliver >IJ. S. :{ l.V.i-:; ];_'. 148 JURORS HOW SELECTED AND SUMMONED. [ 134, 135. the envelope to the clerk of the other court or one of his deputies, and at the time of delivery to administer to said clerk or deputy, as the case may be, the following oath : " You do solemnly swear that you will, to the best of your ability, safely keep this envelope ; and that you will neither open the same nor allow it to be opened, ex- cept as provided by law ; and that you will cause it to be delivered to the jury commissioners of the county court next hereafter ap- pointed in and for this county." At the first term of the court thereafter held, at which jury commissioners are appointed, it is the duty of the clerk to deliver said envelope to the jury commissioners. or one of them, and take a receipt therefor. The receipt must state whether the seal of the envelope be broken or not. After the jury commissioners have assembled for business, they must open the en- velope and read the list of names, and no person named on the list shall be selected as a juror by such commissioners. 1 134. Lists of jurors to be destroyed. It is the duty of the jury commissioners, in both the district and county courts, before leaving the apartment in which they have selected jurors, to destroy the list of names mentioned in the pre- ceding section ; and it is unlawful for them or any of them to make known to any person the name of any person on such lists. 2 135. Selected jurors, how summoned. Within not more than thirty days and not less than ten days prior to each term of the court, it is the duty of the clerk of the district or county court to open the lists of jurors selected for such term, and to make out a copy of the same, duly certified under his hand and the seal of his office, and deliver the same to the sheriff. Where the judge has directed that the jurors for any week shall be summoned for some other day than Monday, the clerk must note such order for the information of the sheriff. On receipt of such lists it shall be the duty of the sheriff immediately to notify the several persons named in such lists to be in attendance on the court on the day and week for which they were respectively drawn to serve as jurors for said week. Such notice may be orally delivered by the sheriff to the juror in person, or in case such juror cannot be found, then a written memorandum thereof, signed by the sher- iff officially, may be left at the juror's place of residence, with some member of his family over sixteen years of age. Such notice must be served at least three days prior to the first day of the term of the court, exclusive of the day of service. The sheriff executing such summons must return the lists on the first day of the term of the court at which such jurors are to serve, with a certificate i R S. 3165-3172. 2R S. 3173. '-. l:J7.] Jl-KoK-s H . TKU AND SfMMo. 149 thereon <>f the date and manner of service upon each juror; anil if any of the jurors have not been summoned, ho must also stato the diligence used to summon them. and tin* reason why they have not summoned. 1 .Juries for any special term of the district court are summoned in accordance with the law regulating juries at reg- ular tenns. J 136. Sheriff to be sworn when directed to summon jurors who have not been selected. Whenever it may be necessary to summon jurors who have not. I y jury commissioners under the provisions of the ute. the court must administer to the sheriff and each of his depu- ties the following oath: " You do solemnly swear that you will, to the best of your skill and ability, and without bias or favor toward any ) >arty, summon such jurors as may be ordered by the court; that you will select none but impartial, sensible and sober men, havinir the qualifications of jurors under the law; that you will not, directly or indirectly, converse or communicate with any juryman touching any case pending for trial; and that you will not by any means attempt to influence, advise or control any juryman in his opinion in any case which may be tried by him, so help you God. va It is a >iillicient compliance with the statute, if the oath prescribed be once administered to the sheriff during the term and before the jurors are called as talesmen, provided the attention of the sheriff be called to his duty in selecting the jurors before they are sum- moned. 4 8 137. Jurors excused; fined for non-attendance. The court may hear any reasonable excuse of a juror, supported by oath or atlirmation, and may either release him entirely or until some other day of the term. Should any juror who has been law- fully notified fail to be in attendance on the court in obedience to such notice, without some reasonable excuse, to be judged of by the court, be may be fined in any sum not less than ten nor more than .undred doll; 1 It S. :n 74-3178. It is provided that all jurors shall be summoned to appear on the day of the terra designated by a standing order of the court for tli of jury oases. R a 1289, :5 !'.:. ->. 11 IN. Tli*- jury commissioners, at the regular terra of the court at which til-- order for a special term is entered, shall. under the in.struction of tin- court. ;i regular venire for each week of such apt-rial t>-nn. which shall In- 1< n.- in accordance with the law regulating juries for any regular term of court vide. I. that nothing herein shall l- so construed a- to uit.-rfcrf with the select- : juries at one regular term of the court for the next regular U-rm of the c..urt. K. S. 1117. nton v. M I. 417 (10 S. W. Rep. 4 R S. aiN.'). ;jl^.i. After a jury was regularly ia>i>a:ifU-d two of them presented 150 JURORS HOW SELECTED AND SUMMONED. [ 138. 138. Juries for the week, how made up. ( >n Monday of each week of the court for which a jury shall be summoned, and for which there may be jury trials, or where the jurv trials for the week have been set for some other day, then on such day, the court shall select thirty qualified jurors, or a greater or less number, in its discretion, to serve as jurors for the week. Should such selection from any cause not be made on the day ap- pointed, it may be made on any subsequent day. The jurors are selected from the names included in the jury list for the week, if there be the requisite number of such in attendance who are not excused by the court. If the requisite number of jurors be not in attendance at any time, the court may direct the sheriff to summon a sufficient number of qualified persons to make up the requisite number of jurors. The court may adjourn the whole number of jurors for the week, or any part thereof, to any subsequent day of the term, but jurors shall not be paid for the time they may so stand adjourned. 1 Though article 3181 provides that jurors for the week shall be selected from the names included in the jury list for the week, yet from the terms of article 3183 it is held that the court has power to dismiss a jury selected for any week of a term until another week or further day of the term, for service; that is, that a jury that has been selected and has served for a week, or a part of a week, may be adjourned and required to appear for sorvice for the next week. 2 physicians' certificates as to their inability to sit, and were personally examined by the court and discharged. There was no error in this. It is held, also, that there was no error in the court's acting upon information conveyed by a tele- gram, sent by a person supposed to be known to the judge, to the effect that a juror was ill and unable to attend especially where there was no effort made to show that the juror was not ill. Houston City St. Ry. Co. v. Ross, 28 S. W. Rep. 254 1 R. S. 3179-3183. After the regular jury selected by the jury commissioners for the week has been discharged, it is error to order a jury, to be summoned I iv t lie sheriff, for the trial of a particular case. Lewis v. Merchant, 4 App. C. C., 115. 2 Howard Oil Co. v. Davis, 76 T. 630 (13 S. W. Rep. 665). CHAPTER YIL PARTIES TO ACTIONS.* 139. 141. 1 1'-?. 1 1-!. 114. 14"). 143. 147. 148. 149. 150, 1 .">.'. 153. 1">4. 155. 156. 1")7. 158. 160. 161. it;-.'. !">:'.. 164. In general. essary and proper parties, plaintiffs and defendants. It-iil [xirty in interest may sue. Trustee and beneficiary. Suit by one for use- of another. Suit I iv one for benefit of him- self and others. Suits by agents. Suits by assignees, generally. Assignees of commercial paper may sue. Suits by or against counties, cities, etc. Corporations may sue. Joinder of plaintiffs or defend- ants having separate and dis- tinct interests. Joint owners. Joinder of several obligors, Parties conditionally liable. Husband and wife; actions by. Husltand and wife; actions against. Surviving husband or wife and hfi: Suits by executors, etc, Suits for land against decedents. Survivor and representative. Hi ir-: >uits by and against. Foreign administrator. I'.uf: i-s; actions by and against Surviving partners. - Suits on official and other bonds; 168. Trial of right of property. 169. Parties to scire facias to reviv judgment. 170. Judgments, setting aside and en- joining. 171. Actions against carriers. 172. Actions against telegraph com- panies. 173. Tenants in common. 174. Fraudulent conveyances; par- ties to suits to set a 175. Matulamiis proceedings. 176. Perpetuating testimony. 177. Various interests in land. 178. Lien-holders and incuinbrancers. 179. Mortgages, parties to suits to foreclose, etc. 180. Parties in actions to foreclose the vendor's lien. 181. Laborers' and mechanics' liens. 185. Subsequent purchasers. 183. Purchasers penden t e lite. 184. Action to quiet title against a non-resident, unknown or tran- sient person. 185. Partition; parties to suits for. 186. Joint trespassers. 187. Trespass on land ; who may sue. 1*>. Wrongful attachment 189. Nuisances; injuries to land. 190. Injuries resulting in death. 191. Parties may appear in person or by attorney. 193. Attorney for absent defendants. 193. Guardians ad /item. 194. Minor may sue by next friend. 195. Additional pa: 196. Parties to condemnation pro- ceedings. 165. Parties to suits on official bonds. 166. Parties to indemnifying bonds may be made parties to suits against the officers. 167. Judicial sales; setting a See. al-". T--\.i> I'l. ,-t iin- . 1*93). p. 395. A- to rights of aliens and alien enemies, see Tex;is Heading. I. As to effect of non-joinder and misjoinder, and how pleaded. B i H. 152 PARTIES TO ACTIONS. [ 139. ... l 139. In general. The words /turfy and parties, when used in connection with suits or actions, are technical words, the meaning of which is as certainly fixed as thiii of any \vords in the language. They mean the person or persons l>v or against whom a suit is brought, whether at law or in equitv. All others who may be affected by the suit indirectly or consequentially are persons interested, but not parties. 1 A judg- ment cannot be rendered for or against parties not named in the pleadings nor served with process, and who have made no appear- ance in the suit. Recitals in a judgment entry of matters affecting persons not appearing in the suit nor made parties by citation therein do not form a basis for rendering a judgment against such persons. 2 Before judgment is rendered against a debtor, he is entitled to have before the court as plaintiffs all parties who have an interest in the debt, that he may be freed from further liability thereon. So it is held that one insured against loss by fire cannot maintain a suit in his own name and right on the policy, where it appears that he had assigned the policy after the loss and before suit. The general rule is, that the legal and beneficial owner of a demand is the proper person to sue upon it, but suits have been sustained when they were brought by the person holding the legal title, even though the beneficial ownership was in another, and this even though the holder of the legal title did not sue expressly for the use of the other. In such cases a judgment against or in favor of the person holding the legal title, in the absence of fraud, would be binding on parties in interest; for permitting the apparent power to sue, \vhich follows the legal title, to remain in one who has parted with the beneficial interest, is to be taken as giving to such person the power to bind all persons interested by an action brought to en- force the claim prosecuted in good faith. But under the laws of this state, the assignment of a policy, after loss, passes the legal title to it, and clothes the assignee with the sole power to sue upon it, being bound to allow every discount and defense which it would have been subject to in the hands of the previous owner before no- tice of the assignment was given to the defendant. 3 All parties in interest, to be in any way affected by the decree sought, ought to be made parties, if known, either as plaintiffs or defendants; 4 and each party so joined may set up his own interest in opposition to the others, and claim a decree. 5 i Winston v. Masterson, 87 T. 200 (27 S. W. Rep. 768). - Williams v. Barnwell, 78 T. 326 (14 S. W. Rep. 784); Bell v. Vanzandt, 54 T. 150. East Tex. Fire Ins. Co. v. Coffee, 61 T. 287; R S. 308, 309. Denisun v. League, 16 T. 399; Connell v. Chandler. 11 T. 249; Hall v. Hall, 11 T. 526; Bailey v. Morgan, 13 T. 342; Allison v. Shilling, 27 T. 450. Legg v. McNeil, 2 T. 428; Iglehart v. Moore, 21 T. 501; Garrett v. Gaines, 8 T. 485. 140.] PARTIES TO ACTI' It is a general rule in equity, subject to but few exceptions, that all persons interested in the subject-matter of the suit must bo I. ( >nlinarily one must be made a part to a suit, or ho will not be bound or concluded by the judgment. A court of equity will not make a decree where it is apparent that it cannot definitely settle the rights of the parties or make a final disposition of the subject of litigation. 1 And where judgment is entered against a person without his being made a party to the proceeding, he may have it vacated by a direct proceeding, or may treat it as void in any collateral proceeding in which rights claimed under it are as- serted against him. 2 One of the exceptions to the rule is, that nec- essary parties whose names are unknown may be omitted, anil the case may proceed without them. 3 It has been the policy from an early day to decide the interest and rights of all parties in the sub- ject-matter of litigation in one suit, leaving as little room as possi- ble for a multiplicity of actions. 4 14O. Necessary and proper parties, plaintiffs and defendants. A person who has no interest to be atfected by the litigation, and whom it is not sought to bind by any judgment, is not a i party to the suit.* If the right of action is in one person only, an- other cannot be joined with him as plaintiff. 6 Every cause of action belongs exclusively to him or them whose right has been violated or withheld. 7 It is not a valid objection to a petition, that parties claiming different interests, the one a life estate and the other an unqualified title in fee-simple, assert their respective interests in the same action." In ascertaining who are proper parties it is not in- dispensable that all the parties should have an interest in all the matters in controversy; it is sufficient if each party has an interest in some matters in the suit, and they are connected with the others. 9 i Buffalo Bayou Ship Channel Co. v. Bruly, 45 T. 6; De La Vega v. League, 64 :ker v. Sjenoer. 61 T. 155; Morrison v. Chandler, 44 T. 21: M..IT: I.oftin, 44 T. 17: McCoy v. Crawford, 9 T. 333; Bert rand v. Bingham, 13 T. 266. ley v. Morgan, 13 T < Kiirri- v . I ; rry, 3:J T. Toi ; FrancH v. Xorthcote, 6 T. 185; Pitta v. Ennis. 1 T. Smith v. Power, 2 T. .'.7: Hull v. Hall. 11 T. W>: T..l.-r r, Ay res, I T. were v. Chancy, 21 T. 363; Pridgen v. Andrews, 7 T. 461. T. & P. Ry. Co. v. <;m. a App. C. C., 173. lil.y v. r. I. 328. Faulk v. Kaulk, 23T. 653. IxA ii" > T. 191. This was an action by heirs against the admin- istrators on the estate of the ancestor and their -un-tii s. and tin- sun-ties on a second bond i \.-.uied iinder article 1292, Pasohal's Dig* - [fi -. I'.i.VJi. It was alleged that a larj;" *-cntod: that large funds of the estate wen- invented in railroad stock by one administrator \vhil: the tint boud wag in force, in connection with tmreties on the second bond, be- 154 PARTIES TO ACTIONS. [ 140. One who undertakes to guaranty a member of a firm immunity from any judgment that may be obtained against him is neither a necessary nor proper party to a suit subsequently brought against the firm. 1 Judgment may be rendered against one who is but a for- mal party to a suit, if the evidence discloses that he has incidentally received specific value in a transaction connected with the subject of litigation, for which, under the evidence and pleading:;, he should account. 2 fore the same was executed, and in their own name, which were held as collat- erals to indemnify the second sureties from loss on their suretyship; that all the papers of the estate were lost, and though the amounts wrongfully converted under each of the two bonds could not be stated, about 17,000 was converted under each bond. They prayed that the amounts of money wrongfully con- verted, for which each set of sureties were liable, might be ascertained, and for judgment for the railroad stock against the second set of sureties, for an ac- count, discovery and general relief. On the question as to proper parties it was held: (1) There was no misjoinder of parties or causes of action. (2) A joinder of both sets of sureties as defendants in one action was not only proper for the protection of those interested in the estate, but also for the adjusting of equities existing among the sureties themselves. (3) The joinder was pi-oper to avoid a multiplicity of suits. (4) The second set of sureties were connected with the subject-matter of the suit before their liability as sureties began, on account of their conversion of the assets of the estate; and also afterwards, in the wrong- ful appropriation of a trust fund, which not only the heirs may follow, but which the sureties on the first bond may follow for their own protection in ad- justing liabilities between the two sets of sureties. (5) A bill of discovery, though unknown to our practice in Texas, eo nomine, is practically given under the statute, and a resort to its provisions, so as to make the answers of each de- fendant under oath evidence in this case, approved. (6) The second set of sure- ties having, before their liability as such begun, wrongfully connected themselves with the subject-matter of the suit, which was the property of the estate, are liable in connection with the sureties upon the first bond, without reference to the bond which they afterwards executed. (7) In ascertaining who are proper parties to a suit, it is not indispensable that all the parties should have an interest in all the matters in controversy; it will be sufficient if each party has an in- terest in some matters in the suit, and they are connected with the others. (8) One who improperly obtains from a trustee a part of the trust estate is a proper party to a suit against the trustee to enforce the purposes of the trust. (9) The second set of sureties, holding the proceeds of funds thus invested in railway stock, on account of which'funds in part the liability of the first set of sureties depends, cannot be permitted to appropriate the same in discharge of their own liability, to the prejudice of the first set of sureties. See, also, Fine- gan v. Read, 8 Civ. App. 33 (27 S. W. Rep. 261). 1 Holloway v. Blum, 60 T. 625. In Blum v. Root, 2 App. C. C., 98, it was held that such guarantor was a proper party, and that he might have been brought in had he been subject to the jurisdiction of the court. 2 Harris v. Musgrove, 59 T. 401. Where several judgments were against the same persons, the questions with regard to their validity and interpretation being the same, executions thereon were levied upon the same property, and the question upon which it was sought to restrain the judgments was common to all the cases, and affected all alike, and where the litigation, therefore, had been conducted as if the cases had been but the one case, it was held that the defendants in the several judgments might join all the plaintiffs in the several 14".] i-AirriES TO ACTL 153 Whenever the right to recover against one defendant, under alle- gations of the petition, would preclude the right to recover against another joined as defendant, there is a misjoinder of parties defend- ant. 1 Whether a person is a proper party is a very different question from whether he is a necessary party ; in many cases a person may be made a party although he is not an indispensable party. 2 The general rule, subject to exceptions, is, that only those who have an interest in the suit, and against whom there can be a decree, can be made parties. 8 And it is the right of the plaintiff to make all such persons parties, whether they be residents or non-residents. 4 The interests of the defendants need not be identical, 5 and all who are supposed to be liable should be joined, although their liabilities aros'e in different ways. If the evidence should not establish the liability of one or more, they will be entitled to judgment. 6 It is not an objection that the same judgment cannot be entered against all of the defendants. 7 A person who has no interest whatever in the subject-matter of the litigation should not be joined; as, one who has conveyed away all his interest in the land in controversy, and sets up no claim to it. 8 But a misjoinder is no ground for dismissing as to those prop- erly joined. 9 The same strictness of pleading in regard to joinder of parties and causes of action does not prevail in Texas as is observed in states where the distinction between law and equity forms of action is recognized. Considerable latitude is allowed to avoid a multi- plicity of suits. 10 suits as defendants. Wills Point Bank v. Bates, 76 T. 329 (13 S. W. Rep. 309). A nmrtuM^r was jointly executed by Penny and B. M. Fleming and his wife, to secure their joint debt and future advances to the firm of Fleming & Penny. Fleming and wife died, and their estates were administered by McCormick. One suit was instituted against the estates of decedents and Penny on the mort- gage, and upon an open account for subsequent purchases, with prayer for judg- iiu-nts auamst the estates to be certified to the probate court for observance. ami tur ju'lumriit and execution against Penny. It was held there was IK. mis joinder of parties nor of causes of action. McCormick v. Blum, 4 Civ. App. 9 \V. Rep. lor.l. . ' Williams v. Robinson, 63 T. 576; Clegg v. Varnell, 18 T. 300; Frost v. Frost, 45 T. 340. 'Birdwell v. Butler, 13 T. 338. Johns, ,n v. Davis. 7 T. 17& Ml.-rrin.u't.m v. Williams, ill T. *K Teas v. McDonald, 13 T. 349; Vogelsang v. Mensing, 1 App. C. C., iur. O'Shea . Twohig, 9 T. 836; Navigation Co. v. Dwyer, 29 T. 376. " Bennett v. Spillars. 7 T. 600. Herrington v. Williams. :il T. 448. 9 Johnson v. Davis, 7 T. 17:!: Knunons v. Oldlmrn. 12 T. 18. '"I'ra.l.lurk v. (Joodwin, .->4 T. 578; Clegg v. Vanu-11. is T. 'J'.M: D-.l.l.in v. Bryan. 5 T. 284; Vogelsang v. Mensing, 1 App. C. C., llGo. A fund of $5.000 upon the 156 . PARTIES TO ACTIONS. . [ 141. g 141. Heal party in interest may sue. The real owner of property, whether it be a chose in action or not, may sue to reduce it to possession ; and when a nominal party refuses the use of his name as plaintiff for the benefit of the real part v in interest, no technical rule can prevent the real party from maintaining an action to protect that interest. 1 The rule of courts of equity is that the real party in interest must sue. 2 The trans- feree of an open account may maintain suit on it in his own name, or he may sue in the name of the original creditor as a nominal plaintiff for the use of himself. 3 And where a party uses the name of another in suing for his own use, when he might have sued in his own name, he may change the suit into his own name by amend- ment. 4 An administrator may sue on a note made payable to him. 5 death of a legatee named was to go to the children of Mrs. Martin. The death happened. Mrs. Martin had four children, two of them minors. One of the adult children assigned to plaintiff; the other guarantied the payment. Plaint- iff, in a suit to recover the interest assigned, made the adult legatees and the trust- ees parties defendant. Upon exceptions for want of parties, it was held that, as the judgment could in no way affect the rights of the minor legatees, they were not necessary parties to the suit, no question being made as to the amount being on hand. McNeil v. Masterson, 79 T. 670 (15 S. W. Rep. 673). M. and husband sued G. and his sureties for one-third interest in her mother's estate, which G. was administering as community property. The other defendants were G.'s sureties upon his bond. Defendants excepted for want of necessary parties, there being two sons, who were minors, who were equally interested with plaint- iff in their mother's share of the community. The exceptions were sustained. The minors were then made parties, the original parties amending and as next friend making them parties. Under such circumstances the defendants ought not to be heard to complain of the ruling of the court holding the minors to have been properly made parties; such ruling having been invoked by their own de- murrer to the original petition. The minors, however, were proper parties plaint- iff, as their interest was adverse to the defendants. Guy v, Metcalf, 83 T. 37 (18 S. W. Rep. 419), In a suit on a note to recover the price of property sold, one who guarantied payment of the price may be joined, Vogelsang v. Mensing, 1 A pp. C. C., 1165. 1 Morris & CummingB v. Schooner Leona, 69 T, 35, Thus where a franchise authorized the collection of tolls from a lessee using a water-channel, and for that purpose authorized suit to be brought in the name of the city of Corpus Christi for the benefit of the owners of the franchise, the refusal of the city to permit the use of its name as a plaintiff could not defeat the right, and the owners of the franchise could maintain the action in their own name. The right could not be destroyed by the refusal of the city council to authorize a suit in the name of the city. By the act under which the water-channel was con- structed, it was provided that any one holding the bonds of the city of Corpus ChriBti, to pay which the tollg were to be applied, could enforce the payment of tolls in the courts by compulsory process, and it was held that the appellants as owners of those bonds could not be affected in their x'ight to sue by a refusal of the city to permit its name to be used as plaintiff, 2 Thompson v. Cartwright, 1 T. 87. J Minis v. Swartz, 37 T. 13. But see Devine v, Martin, 15 T. 25. < Heard v. Lockett, 20 T. 162. 'McKinney v. Peters, Dallam, 545; Gayle v. Ennis, 1 T. 184; Grace v. Hern- don, 2 T, 410; De Cordova v, Atcbison, 13 T, 372; Claiborne v. Yeoman, 15 T. 44; 142.] PARTIES TO ACTIONS. 157 The real owner of a stock of goods exposed for sale, though only occasionally present himself in his store, and conducting his busi- through clerks and servants, is in contemplation of law the actual possessor of the goods, and an action for trespass in seizing tin-in irrongfolly must be brought in his name and not in that of one of such clerks or servants. Nor is such a one less the owner and the actual possessor because he had bought the goods in the name of another, and shipped them in that name, if he paid for them with his own money. 1 In a suit to recover money for a county, brought in the name of another for the use of the county, the county is the real plaintiff, and the name of such other should ricken out as surplusage. If this be not done, no issue as to the authority of a third party to sue for the use of the county can be made by a party except by plea in abatement. 3 A liquor-dealer's bond may be sued on at the instance of any per- son or persons aggrieved by a violation of its provisions.' 142. Trustee and beneficiary. A trustee to whom goods have been conveyed for the benefit of certain creditors, and who is in actual possession of them at the time they are taken under attachment by other creditors, may sue for the taking and conversion of the goods without joining with himself the beneficiary creditors under the trust deed. 4 The trustee in a deed of trust given to secure the payment of a note, with power to sell, should be made a party to a suit to recover judgment on the note and for a sale of the property ; 9 and where the trust prop- erty under such a deed Is levied upon and sold at the suit of a creditor, subject to the incumbrance, in a suit by the purchaser at execution sale to get possession of the property, the trustee or the cestui que trust should be made a party." The rule is well established that in suits by or against the trustee to recover the trust property the beneficiary is a necessary party. 7 Hall v. Pearman, 20 T. 168. And the rule holds in case of notes made payable to any one in a fiduciary capacity. McKinney v. Peters, Dallam. 545. 1 Willis v. Hudson, 63 T. 678. A contract between an incorporated city and certain of its citizens with a railway company, whereby the latter agreed for a designated consideration to locate and permanently keep in operation its main machine shops, if sought to be enforced against the company, should be brought by the municipal corporation, or by such of its citizens as participated in fur- nishing the consideration and who thus have a pecuniary interest in the en- forcement of the contract. St. L,, A. & T. Ry, Co. v. Harris, 73 T. 375 (11 S. W. Rep. 405). 2 Smith v. Musely. 74 T. 631 (12 a W. Rep. 748). R.a 3380. * Sanger v. Henderson, 1 Civ. App, 412 (21 a W. Rep. 114). Shelby v. Burtis, 18 T. 644 e Ballard v. Anderson, 18 T. 377. " Boles v. Linthicum, 48 T. 220; Huffman v. Cartwright, 44 T. 296: Hall v. Harris, 11 T. 300; Story's Eq. PL, g 207; 2 Perry on Trusts, g 873. 153 PARTIES TO ACTIONS. [ 143. To this rule there are well-recognized exceptions, but these embrace mainly that class of cases where by reason of the number of the beneficiaries it is inconvenient to make them parties, and where it mav be presumed that it was the intention to invest the trustees with power to prosecute and defend suits in their own names. An apt illustration of the exception is found in the case of the trustees in a mortgage to secure a series of negotiable bonds upon the property of railroad companies. 1 Another illustration is afforded by the case of an assignee in a deed of assignment made by an in- solvent for the benefit of his creditors. 2 The appointment of an assignee in such cases generally grows out of the necessity of hav- ing some agent to act for beneficiaries, who are usually too numer- ous to act together. In such a case the presumption is great that he is their representative not only as to the general management of the assets, but also to prosecute and defend suits involving title to the assigned estate. The authority granted to a trustee to receive rents for the use of the cestui que trust and in his discretion to sell the property, the proceeds to go to the benefit of the cestui que trust, does not imply a power in him to defend alone a suit involving title to the trust estate, and the beneficiary is a necessary party. 3 All persons whose interests are to be affected by a decree to com- pel a conveyance of land alleged to be held in trust are necessary parties. 4 The general rule is that the beneficiary must join in a suit to enforce the trust.* And where the legal title to land sued for is in one of several defendants, and is so held for the benefit of one of the defendants, the beneficiary is a necessary party to a pro- ceeding to annul such title.* 143. Suit by one for use of another. The payee of a note cannot maintain a suit thereon for the use of assignees, who are alleged to be the legal owners. It would be otherwise if he were alleged to be the legal owner, and that the as- 1 Shaw v. Railroad Co., 71 Mass. 162. 2 Kerrison v. Stewart, 93 U. S. 155. Ebell v. Bur-singer, 70 T. 120 (8 S. W. Rep. 77). Huffman v. Cartwright, 44 T. 296; G., H. & S. A. Ry. Co. v. McDonald, 53 T. 510. Hall v. Harris, 11 T. 300. Boles v. Linthicum, 48 T. 220. Plaintiffs were the surviving obligees of a bond executed to them by a railway company, to secure to those who had con- tributed money to the road the return of it to them in the event the road was not completed to a certain place in a certain time. The road not having been completed as agreed, the obligees, acting as trustees for all the subscribers, could sue without making the representatives of one of their number, who had died, parties. Maintaining this suit as trustees for all the subscribers, plaintiffs were entitled to recover for the entire amount subscribed and paid by the citi- zens to the railway company, including that subscribed and paid by the deceased trustee. Red River, S. & W. Ry. Co. v. Blount, 3 Civ. App. 282 (22 S. W. Rep. 930). ': K 145.] I'AUTIES TO ACT1< > had an equitable interest. 1 The party in whose name the suit is brought, if he have no interest, is not a party in the suit, and no recovery can he had against him without first making him a partv bv the service of process upon him. In case of bis death the suit will | in the name of the usee. 1 The owner of property destroyed by fire may sue for the use and benefit of the insurance company, alleging an assignment to the company to the extent of its claim. 1 144. Suit by one for benefit of himself and others. While the rule that all parties in interest ought to be made par- s well established, so also are the exceptions to it ; and where parties interested in the subject-matter of a suit are very numerous, some of them may maintain a suit for themselves and others inter- ested in like manner. 4 A suit may be maintained by one or more of the beneficiaries of a charity, for the benefit of all, against a trustee, when the parties are numerous, when the trustee attempts to pervert the trust fund to improper uses, or to deprive the bene- ficiaries of its enjoyment.* Creditors may sue for themselves and others similarly situated to have a conveyance declared a general statutory assignment. 8 145. Suits by agents. The general rule is that one who contracts as agent cannot main- tain an action in his own name and right upon the contract. To 1 Anderson v. Shaw, 2 U. C. 285; Jones v. Nowland, Dallam, 451. - Mt-Fadin v. MacGreal, 25 T. 73: Clark v. Hopkins, 84 T. 139. A plaintiff stated in his petition that he was the owner of certain goods injured by fire while in the possession of a railroad company for shipment; that he had transferred to an insurance company one-half of his right of action against the road, and that his suit was for one-half the damages sustained, for the use of the insurance company. The allegation in the petition that the suit was for the use of the in- surance company was held proper to protect the interest of that company, though it did not make it a plaintiff, and it was not necessary to show by aver- ment or proof how the insurance company acquired its interest; the owner of the property could recover without offering proof of the transfer to the iii>ur ance company. If plaintiff had not averred that he was suing for the use of the insurance company, defendant might have defeated his suit by showing the transfer of the cause of action. If defendant relied upon anything in the trans- fer, as that the cause of action had been devoted to an illegal purpose to defeat the action, it should have et it up in ite answer. The legal right of action re- mained in the owner of the goods, the petition disclosed a good cause of action, and the mere allegation by the plaintiff that the cause of action had been trans- ferred did not compel him to negative the illegality of such a transfer. The transfer, when offered in evidence, could not be excluded on the ground that ic contained other matter than the bare transfer itself. E. L. & R R Ry. Co. v. Hall, G4 T. 615. Tex. & Pac. Ry. Co. v. Levine, 29 8. W. Rep. 514. Carleton v. Roberts, 1 U. C. 578; Story's Eq. PL 94, 97, 114. Tunstall v. Wormier. .'.1 T. Locht v. Blum, 30 a W. Rep. 925. 160 PARTIES TO ACTIONS. [ 146. this rule are conceded exceptions: (1) where the agent contracts in his own name; (2) where the agent does not disclose his principal, who is unknown; (3) where by the usages of trade the agent is authorized to act as owner of the property ; and (4) where the agent has an interest in the subject-matter of the contract; and in this case whether he professed to act as agent or not. 1 The exceptions to the rule do not apply to suits to recover land. 2 An attorney in fact who has a power to sell lands, -pay debts, and do all and singular what his principal could do, cannot maintain an action in his own name to remove a cloud from the title of his principal. 3 The cases in which an agent is allowed to sue in his own name do not include the agency which subsists between partners, even in a case where the partner seeking to maintain a suit in his own name is the general agent and active business member of the firm, to whose control the whole business is intrusted. 4 146. Suits by assignees, generally. The assignee or equitable owner of a chose in action may sue in his own name, and under this is included a claim for damages / o against a railway company for killing stock. It is said that every- thing which can be called a debt can be assigned, and the assignee may recover either in his own name or in that of his assignor. 5 The assignment need not be in writing. Thus the sale of goods shipped and the delivery of the bill of lading will enable the pur- chaser of the goods to sue the carrier for a loss. 6 And it is held that this rule applies to a chose in action not evidenced in writing, or to an open account. Equity will protect the interest of the as- signee without any express promise on the part of the debtor to pay him, and he may sue in his own name. 7 And where a contract in writing is assigned, thp assignee may sue, although he may be a mere trustee for the benefit of the assignor. 8 Where an insolvent makes an assignment for the benefit of cred- itors, suit will lie against the assignee by the assignee of a claim against the estate, without making the assignor of the claim a party. In such case the defendant, if he deems it necessary for his own protection, may, if he moves promptly, have the assignor 1 Tinsley v. Dowell, 87 T. 23 (26 S. W. Rep. 946). 2 Holloway v. Holloway, 30 T. 164 Robson v. Tait, 13 T. 272. * Speake v. Prewhit, 6 T. 252. 6 G., H. & S. A. Ry. Co. v. Freeman, 57 T. 156. A claim for damage to crops caused by an overflow may be assigned. G., C. & S. F. Ry. Co. v. Jones, 3 App. C. C., g 14. T. & P. Ry. Co. v. Wright, 2 App. C. C., 340. ^Rollison v. Hope, 18 T. 446. Devine v. Martin, 15 T. 25; Smalley v. Taylor, 33 T. 6G8. 14' i.\i:ms TO ACTl' 161 in: or ihe assignor might, at a proper time and upon a showing, make himself a party by intervention. 1 A j>artial assignment of a chose in action is good in equity, though the le^ral title remains with the assignor. 2 And it is well settled that the holder of the legal title of a chose in action may briiiLT suit upon it in his o\vn name, although the equitable right may be in another. 3 The equitable owner is a proper but not nec- party, unless the debtor have some legal defense as against him alone. 4 A policy of insurance is such an instrument in writing as, under articles :\<^ and 309 of the Revised Statutes, may be assigned, so as to enable the assignee to maintain an action in his own name. Such assignment, after a loss has been sustained, passes the legal title, and invests the assignee with the exclusive right to sue upon it. It is subject, however, to every discount and defense which could have been set up against it in the hands of the previous owner before notice of the assignment. The fact that the assignment was made as collateral security for a debt will not vary the rule. If the assignor has an equitable interest in the claim, he may be joined o-plaintiff, but cannot prosecute alone. 5 When a part of a debt has been assigned, the assignee acquires a right of action in equity against the debtor, and not only a lien upon the fund but a property in the fund itself. Though he owns but an interest in the chose in action, he may enforce its collection and an equitable distribution by suit against the debtor and the other parties in interest. The several claimants under assignments of specific interests in the debt have priority of right to payment in accordance with the dates at which their interests were ac- quired. 8 It has never been recognized as a rule that a debtor when sued irf v. Johnson, 8 App. C. C., 8 399. - 1 1 arris County v. Campbell, 68 T. 22 (3 S. W. Rep. 243). 3 Rider v. Duval, 28 T. 6^:',: Wimbish v. Holt, 20 T. 674; Butler v. Robertson, 11 T. 14,': Thompson v. Cartwright, 1 T. 87; Life Ins. Co. v. Ray, 50 T. 511. ' I \ W.->t. Ry. Co. v. Gentry, 69 T. 625 (8 a W. Rep. 98). 8 East Tex. Fire Ins. Co. v. Coffee, 61 T. 287. See Perry v. Insurance Co., 25 Ala. 860; Archer v. Insurance Co., 43 Ma 442; Carpenter v. Miles 17 K Mon. 601. The : of an insurance policy, with power to collect the amount due and apply it on debts due him and others by the assignor, is a proper party in a suit on the I M.I icy by the assignor. Alamo Fire Ins. Co. v. Schmitt, 80 S. W. Rep. Harris Co. v. Campbell, 68 T. JJ .:: s. \V U, p. -.':: : Clark v. (JilU-spiV. 70 T. 513 (8 S. W. Rep. 121). Suit filed January 9, 1890. On same day tin- plaintitf executed to his attorn, -y a transfer of two-thirds <>f tho amount to be recovered. The transfer followed the petition in the transcript The attorney named in the transfer prosi-cuU'd the suit in the district court to judgment, and repre- sented plaintitf on appeal by the defendant Pica in abatement was urged for the non-joinder of the attorney as a party plaintiff. The plea was properly overruled, as it will be presumed that the transfer was subsequent to the filing 11 PARTIES TO ACTIONS. [147. lias the right to have every precedent owner of the assigned instru- ment sued upon made a party in order that they may be estopped by the judgment. It is sufficient that plaintiff prove ownership of the claim sued on. It is the debtor's right in every case, by proper pleadings, to compel the plaintiff who sues upon an assigned in- strument to show title in himself by proving the genuineness of all transfers. This is all the protection the law gives in such cases, and it is held to be ample. This ruling was made in a suit by the assignee of time-checks issued to laborers by a contractor on a railroad, and was in reply to a contention that the subcontractors ought to have been joined. The suit was against the company and the contractor. The case is said to differ from the case of Austin & N. W. Ky. Co. v. Eucker, 59 T. 587. It was held in that case that the assignee of such a claim may sue, but that where the suit is against the railway to enforce the lien, on due-bills issued by a subcontractor and assigned to plaintiff, the contractor and sub- contractors ought to be joined, so as to make the judgment binding upon them. 1 147. Assignee of commercial paper may sue. An assignee of a negotiable instrument may maintain any action in his own name which the original obligee or payee might have brought, allowing all just discounts against himself or his assignor as provided by the statute. 2 The assignee of a non-negotiable in- strument may also sue in his own name, but is required to allow every discount and defense against such instrument which it would have been subject to in the hands of any previous owner before notice of the assignment was given to the defendant ; and in order to hold the assignor as surety for the payment of the instrument the assignee must use due diligence to collect the same. Waiver of diligence on the part of the assignor, drawer or indorser cannot be shown by parol. Assignors, indorsers and other parties not pri- marily liable may be jointly sued with the principal obligors, or may be sued alone in the cases provided for in articles 1203 and 1204, Revised Statutes. 3 The general rule is that the person who appears to be the legal holder of a promissory note may sue upon it in his own of the petition. But a reversal would not result from the fact that the trans- fer antedated the filing of the petition, as the attorney so identified himself with the suit as to become bound by its result. Bonner v. Green, 6 Civ. App. 96 (24 S. W. Rep. 835). San A. & A. P. Ry. Co. v. Cockrill, 72 T. 613 (10 S. W. Rep. 70S). Where one who has collected notes is sued by an assignee thereof after maturity, and pleads a set-off against the assignor, the latter is a proper party. Stafford v. Blum, 27 S. W. Rep. 12. * R S. 307. *RS. 309-312. See 119, 120, infra. J; 147.] PARTIES TO ACTIONS. 163 though the actual or equitable ownership may be in another. 1 The -sion by plaintiff of a note payable to a named person or order, or hearer, acquired before maturity, constitutes a prima facie case, and entitles him ordinarily to recover. 2 Either the legal or equita- ble owner may sue;* thus a guardian ad litem, to whom notes are made payable, may sue without any averment that the suit is for the use of the minors; * or a guardian, to whom a note is made pay- able jointly with his ward. The guardian in such case is the legal holder, and a judgment at his suit would bind the ward. 5 If a promissory note is acquired in good faith, before maturity, it does not affect the title of the holder that the one from whom he acquired it had no title. 6 An indorsement for collection merely will entitle the holder to sue. 7 And such an indorsement being subject to recall at pleasure, the indorser may sue. Possession is sufficient to show continued ownership. 8 But the indorsement of a note for collection destroys its negotiability ; the transferee for col- lection cannot assign it. 9 The payee of a note may erase his own and subsequent indorsements, and sue in his own name, alleging himself to be the legal owner. 10 But where an instrument, when sued on, had been indorsed to other parties for a valuable consid- eration, and there was no averment that the payee was at the time of instituting suit the legal owner, an exception setting up such fact was well taken. 11 The mere possession of a negotiable instrument produced in evi- dence by the indorsee or assignee when no indorsement is neces- sary imports prima facie that he acquired it bona fide for full 1 Thompson v. Cartwright, 1 T. 87; Gayle v. Ennis, 1 T. 184; Thomas v. Young, .1 T. 868; Hays v. Cage, 2 T. 501; Martel v. Hernsheim, 5 T. 205; Wimbish v. Holt, 26 T. 2 Guerin v. Patterson, 55 T. 124; First Nat. Bank v. Beck, 2 App. C. C., 832; Faulkn-r v. \Yarr.-n. 1 App. C. C., g 659. SMrf'arty v. Bn-rkenridge, 1 Civ. App. 170 (20 S. W. Rep. 907). 'WimbuhY. Holt, 26 T. 'Ezell v. K.I wards, 2 App. C. C., 789; Portis v. Cummings, 21 T. 265. It ap- .^ th;it the plaintiff was the indorsee without consideration, and only for convenience, of a number of bonds or promissory notes, the defendant-, tin- makers of such obligations, can make any defense they could make if sued by tin- original payee or payees. Elwell v. Tatum, 6 Civ. App. 397 (24 S. W. Rep. 71: ,':, S. \V. K..|, 434). s Wilson v. Denton, 82 T. 531 (18 & W. Rep. 620); Ross v. Smith, 19 T. 172; Greneaux v. \Vh.-eler, 6 T. 515. Aii'ln-u- v. Hoxie, 5T. 171. Daughcrty v. Eastburn. 74 T. 68 (11 S. W. Rep. 1053); Grant v. Ennis, 5 Civ. API \V. Rep. 998). "Kempner v. Jordan. 3 Civ. App. 129 (22 S. W. Rep. 1001). "Collins v. Bank, 75 T. 254 (11 S. \V. Rep. 1053j; Jensen v. Hays, 2 App. C. C., Tex. L. & C. Co. v. Carroll, 63 T. 48; Grant v. Ennis, 5 Civ. App. 44 (23 S. W. Rep. 998) ; Johnson v. Arlidge, 17 S. W. Rep. 28 ; Garza v. Manchke, 23 S. W. Rep. 836. 164 PARTIES TO ACTIONS. [ 148. value in the usual course of business before maturity, and without notice of any circumstances impeaching its validity, and that he, as the owner, is entitled to recover against the maker, notwithstand- ing there might be a good defense against the payee. 1 A holder of a non-negotiable instrument may maintain an action \i) ion it in his own name, but he must show his right to the paper, either by indorsement or proof of ownership. 2 He must prove that he came honestly by the instrument, and for a valuable considera- tion; possession alone will not entitle him to a judgment. 3 It is said that an assignee of such an instrument, either by parol or de- livery, is entitled at law to sue the maker in the name of the assignor, and in equity to bring suit in his own name. And since there is no distinction between law and equity in this state, it fol- lows that an assignee by simple delivery may sue in his own name. 4 The possession of a promissory note, payable to the order of an- other, and not indorsed to the holder, nor indorsed in blank by the payee, does not constitute such evidence of ownership as will en- able the person in possession to maintain an action, upon allegation that, for value received, it was transferred to him by delivery. The only instruments in which the law recognizes the property as pass- ing, like coin, with the possession, are those termed negotiable, and which are transferable by delivery, viz. : Bills and notes payable to bearer, or payable to order and indorsed in blank. In such cases the legal right passes by delivery, and possession is prima facie evi- dence of right. 5 It is the duty of the assignee of a non-negotiable instrument to promptly notify the maker of the transfer, and the maker will be protected if he pays the payee without notice of the assignment, the absence of the note being reasonably accounted for. 6 148. Suits by or against counties, cities, etc. A suit by or against a county, or an incorporated city, town or village, must be by or against it in its corporate name. 7 Where the bond of a county treasurer is executed to the county judge by name, but without describing him as judge, a suit on such bond, brought in the name of the obligee for the use of the county, > Blum v. Loggins, 53 T. 121; Tex. B. & Ins. Co. v. Turnley, 61 T. 365; Hooks v. Bramlette, 1 App. C. C., 865. 'Hoffman v. Bignall, 1 App. C. C., 706; Merlin v. Manning, 2 T. 351; Heard v. Lockett, 20 T. 162. Ross v. Smith. 19 T. 173. Ogden v. Slade, 1 T. 13; Merlin v. Manning, 2 T. 351; Smith v. Clopton, 4 T. 169; Ross v. Smith, 19 T. 171; Devine v. Martin, 15 T. 25; Guest v. Rhine, 16 T. 349. 5 Ross v. Smith, 19 T. 171. 6 Swearingen v. Buckley, 1 U. C. 421. 7 R.&1196. 149.] PARTIES TO ACTIONS. 165 is, in effect, a compliance with the above statute, the county being the real plain tiff. It is not necessary that the petition should sho\v on its face that the county had authorized the suit. Such an objec- tion can be taken only by plea in abatement. 1 S 149. Corporations may sue. A corporation, created by or under the laws of this state, or of any other state or territory, or of any foreign government, may sue in its corporate name. 2 Where the plaintiffs are a domestic corporation, created by a public law, it is not necessary that they should allege or prove that they are a corporation, as the court must judicially take notice of that fact; 3 but, if the plaintiffs are a domestic corporation, created by a private act, or a foreign corpo- ration, the court cannot judicially know the name or legal being of such corporation, and those facts must be alleged and proved. 4 It is not necessary, in a suit by a foreign or domestic corporation, to set out the names of the persons who form such corporation. 5 Where a foreign corporation is sued, and it transpires that it has been dissolved by a decree of the courts of the state of its origin, if plaintiff desires to pursue the cause he must bring in the receiver. 6 A foreign banking corporation may sue in this state on a contract made in another state, notwithstanding the prohibition in article 16, section 16, of the constitution. 7 'Smith v. Wingate, 61 T. 54. Article 1045, Paschal's Digest, was substantially the same as the above statute, and it was held that the chief justice could not bring an action in his own name for the use of the county. De La Garza v. Bexar Co., 31 T. 484 2 Bank v. Simonton, 2 T. 536; 1 Black, Cora. 474-5. Counties are bodies cor- porate and politic, and suits may be brought by them in the name of the county. E. & 1 196. ' A motion against a sheriff alleged . . . comes John D. McLeod, chief jus- tice of the county of Bezar, and who moves herein, in behalf of said county of Bexar, etc., . . . wherefore the said J. D. McLeod, chief justice as aforesaid, acting in behalf of said county, moves, etc. It was held that the motion should have been made in the name of the county, and that exceptions thereto une improperly overruled. De La Garza v. Bexar Co., 31 T. 484. Where, in a gen- eral act of the legislature, the corporate existence of a railroad in this stnt-- is recognized, the courts will take judicial notice of the existence of the corpora- tion. H. & T. C. Ry. Co. v. Knapp, 51 T. 569. Railway charters are generally treated as private acts, of which the courts do not take judicial notice, and if a charter in question is an exception to the general rule, it must be shown. Conley v. C. T. Ry. Co., 44 T. 579. A court can acquire no jurisdiction over a corporation through a petition filed against its agent. Bowers v. Continental Ins. Co., 65 T. 51. Corporations must sue and be sued in their corporate names; and the court will not presume that the Southern Pacific Railway Company and the Southern Pacific Company are the same company. So. Par. Co. v. Burns. 23 S. W. Rep. 288: So. Pac. Co. v. Block, 84 T. 21 (19 S. W. Rep. 300). Bank v. Simonton. 2 T. .-,:>,! ; Hollow v. Memphis. El P. & Pac. R T. 465. * Texas Pleading (189S). 399. Life Ass'n of Am. v. Ooode, 2 U. C. 414. 'Freeman v. Bank of Commerce, 3 Apjx C. C.. 338, 166 PARTIES TO ACTIONS. [ 150, 151. 1 60. Joinder of plaintiffs and defendants having separate and dis- tinct interests. Two or more persons ma} 7 join in a suit to enjoin the collection of >. and the aggregate of their claims may confer jurisdiction on the court when the amount of the claim of either alone would not be sufficient. 1 Several creditors may join in a suit to enjoin a sale of attached property under a judgment at the suit of another creditor. This course is commended, as it prevents a multiplicity of suits. The bill relates to but one subject-matter, and is, therefore, not multi- farious. 2 Where one pays out money at the request of a railroad company, to take up and pay off time-checks issued by a contractor to labor- ers, suit may be brought against the company without joining the contractor. 3 But it has been held that where an assignee of such a claim sues, not only to recover the amount due, but also to enforce the lien, the contractor and subcontractors are necessary parties. 4 151. Joint owners. All joint owners must join in an action to recover property in case of a joint bailment. Joint creditors, whether by record, spe- cialty, or simple contract, must all join in an action to recover the debt or the estate which they respectively hold together. 5 "Where an action was brought by one of two obligees, and the defendant excepted to the petition on account of the non-joinder of the other obligee, whom the plaintiff had alleged to be deceased, it was held that the exception was sufficiently answered by another averment of the petition that the survivor was the sole owner of the cause of action. 6 Joint owners cannot, by any arrangement between them, so di- vide the debt as to enable each to sue separately for his own inter- est. 7 They must join in a suit against a common carrier for injury 1 Hamilton v. Wilkerson, 1 App. C. C., 556; Girardin v. Dean, 40 T. 243; Car- lile v. Eldridge, 1 App. C. C., 986. 2 Orr v. Moore, 1 App. C. C., 588. 'Ware v. G., H. & S. A. Ry. Co., 2 App. C. C., 740; S. A. & A. P. Ry. Co. v. Cockrill, 72 T. 613 (10 S. W. Rep. 702). 4 Austin & N. W. Ry. Co. v. Rucker, 59 T. 587. *Stachley v. Pierce, 28 T. 328. Where the plaintiff declared in his own right, and produced a receipt which showed a joint cause of action with another as to a part of the demand, although that other swore that he had no interest in the thing bailed, and never had, and that the balance of the money due was the ab- solute property of the plaintiff, the court, without passing upon the objection to the evidence of the witness, or the effect of his statement, reversed the judg- ment against a special verdict, although there were no instructions in the record. See, also, Hanner v. Surnmerhill, 7 Civ. App. 235. Hansell v. Gregg, 7 T. 223. 'Strohl v. Pinkerton, 1 App. C. C., 471; Speake v. Prewitt, 6 T. 252. I'A Kills TO ACTI 167 to goods shipiKHl; 1 or to recover for property destroyed; 2 or in "f crops destroyed by fire. 3 The surviving wife cannot sue alon- f>r damage to land belonging to herself and children. The hat the property is a homestead does not alter the rule. 4 re the suit is for damages for the destruction of grass, turf, past ura .ire, hay and cotton, all parties interested in the recov- ery must be joined, though one of them has an interest only in the 'i. ( >ur system abhors a multiplicity of suits, and there is no good reason for requiring more than one suit where the claims for damaL-v* ai- based upon the same negligent acts and constitute but ransaction. 5 The rule is well settled that in actions upon joint contracts all persons in whom the right of action exists must be made parties, and a failure to make them such will prove fatal to the right to recover, whether the defendant pleads the non-joinder in abate- ment or not. The failure to make the necessary parties plaintiff to an action on a joint contract will be considered oil appeal, if brought to the notice of the court, whether the defendant raised the ques- tion by plea in the lower court or not. The error is fundamental. 8 ? 152. Joinder of several obligors. The acceptor of any bill of exchange, or any other principal obligor in any contract, may be sued either alone or jointly with any other party who may be liable thereon; but no judgment shall be rendered against such other party not primarily liable on such bill or other contract, unless judgment shall have been previously, or shall be at the same time, rendered against such acceptor or other principal obligor, except where the plaintiff may discontinue his suit against such principal obligor. 7 Where a suit is discontinued as to a principal obligor, no judg- ment can be rendered therein against an indorser, guarantor, surety or drawer of an accepted bill who is jointly sued, unless it is alleged and proved that such principal obligor resides beyond the limits of th- state, or in such part of the same that he cannot be reached by the ordinary process of law, or that his residence is unknown and cannot be ascertained by the use of reasonable diligence, or that he i> dead or actually or notoriously insolvent. 8 Pac. Ry. Co. v. Rushin. 3 App. C. C., 317. & Pac. Ry. Co. v. Williams, 1 App. C. C.. 249. H. & T. C. Ry. ( to. v. Hollingswortli. i App. C. (X, ? 173; Tex.' & Pac. Ry. Co. T. Beam-hamp. i.l.. .i'?' 17*). 176. 4 M... Par. Hy. _"ii.-. ,' App. ('.<'.. ?' 780. I M... Par. Hy. (.'.. v. \Vi-.-. :; App. < 'Hanner v. Smmm-rhill, 7 Civ. App. >:}:> -. Holliman v. Rogers, 6 T. 91. S. 1203. 8R.S.1- 103 PARTIES TO ACTIONS- [ 152, It is a general and fundamental rule at common law, where the :i-tion is upon a joint obligation, that all the joint obligors should be made defendants. Article 1203, above quoted, changes the com- mon-law rule, and makes it no longer necessary to join as defend- ants all joint obligors in a suit upon a joint contract. 1 In a suit to foreclose a mortgage against parties, each of whom claims in his own right and holds possession of a portion of the* mortgaged property, all may be joined as defendants. If the mort- 3, 154.] PARTIES TO ACTIONS. suggestion that the principal resided beyond the limits of the or that he was insolvent. 1 And where an administrator and the sureties on his bond have been jointly sued, it is error to permit the plaintiff t dismiss as to the administrator and take judgment by ilt against the sureti 153. Parties conditionally liable. The assignor, indorser, guarantor and surety upon any contract,, and the drawerof any bill which has been accepted, may be sued with- out the necessity of previously or at the same time suing the maker, acceptor or other principal obligor, when he resides beyond the limits of the state, or in such part of the same that he cannot be reached by the ordinary process of law, or when his residence is unknown and cannot be ascertained by the use of reasonable dili- gence, or when he is dead, or actually or notoriously insolvent. 1 No surety shall be sued unless his principal is joined with him, or unless a judgment has been previously rendered against his prin- cipal, except in the cases provided for in the above article. 4 The privilege of a surety not to be sued unless the principal has- been previously sued, or to be simultaneously sued, must be taken advantage of in abatement. It is not available in bar. 5 Where the principal is dead the surety may be sued without first instituting^ proceedings against the succession of the principal. 6 A note in such. case need not be presented to the administrator of the principal for allowance; the sureties become primarily liable. 7 154. Husband and wife; actions by. The husband may sue either alone or jointly with his wife for the recovery of any separate property of the wife ; and in case he fail or neglect so to do, she may, by the authority of the" court, sue for such property in her own name. 8 This article originally read, " any effects of the wife," instead of "any separate property." 9 The facts giving the wife the right to sue alone must be averred and proved. But authority need not be obtained before the insti- tution of the suit. 10 The wife may sue alone when the land sued for is shown to be her separate property, and it appears that the > Foster v. Shephard, 33 T. 687. Farris v. Berry, 33 T. ?OL JR.a 1204 * R. S. & Sherwood v. Jordan. 2 U. C. 610. Scott v. Dewees. 2 T. 153: Evans v. Crump, 6 T. 85. 'Scantlin v. K.-mp. 34 T. 3#. R S. 1200. P. D., art 4636. MMclntyr- v. i 'happeH, 2 T. 378; Mitchell v. Wright, 4 T. 283; Jacobs v. Cun- n in -ham, 32 T. 77-1. 170 PARTIES TO ACTIONS. [ 154. husband had abandoned her and had neglected to sue. 1 If the hus- 1 11111(1 refuses to join, the wife may sue alone where the greater part of the purchase-money of land was her separate property. They inav sue jointly to recover her interest. 2 A mere separation of the husband and wife, and his refusal to join her in the action, is not sufficient to authorize the wife to prosecute alone a suit to recover damages for an assault and battery committed upon her during coverture. The exceptional cases in which the wife has been al- lowed to maintain an action for the community estate have been where she had been abandoned by her husband and was destitute of the means of support, unless she resorted to the community prop- erty. The husband may sue alone for the recovery of the wife's sepa- rate property, and recover damages for injury to such property. 4 The wife will be protected where the husband is negligent or acts in fraud of her rights. He may be made a defendant. 5 Where the husband attempts to convey the separate property of the wife, the suit should be brought in the name of the wife alone, the husband O * being joined as a defendant. 6 In a suit for damages to the wife's separate property, while she is not a proper party plaintiff, yet the joinder of the husband and wife as plaintiffs is not reversible error. 7 Where a married woman sues for damages to her separate property and the crops growing thereon, the husband is a real party though it is stated that he is joined only pro forma, and the running of the statute of limitations is stopped at the commencement of the suit 1 Norton v. Davis, 83 T. 32 (18 S. W. Rep. 430). 2 Lyttle v. Harris, 2 U. C. 21. Ezell v. Dodson, 60 T. 331; McGuire v. Glass, 4 App. C. C., 54. Money the separate property of the wife was loaned to a firm and was used in its business, of which firm the husband was a member. It being necessary to protect her interest that legal proceedings be taken, such proceedings could be taken by the wife alone and against the firm. That the estate or interest in the fund sued for held by the wife may have been but the right to use the income for life would not be an obstacle to her suing, The court, if necessary, could direct the fund to be paid to a bonded trustee to secure the disposition of it under the trusts following it Martin Brown Co. v. Perrill, 77 T. 199 (13 S. W. Rep. 975). 4 Tex. & Pac. Ry. Co. v. Medaris, 64 T. 92; Overand v. Menczer, 83 T. 122 (18 S. W. Rep. 301); Cannon v. Hemphill, 7 T. 184; Turnley v. Tex. B. & I. Co., 54 T. 451. 5 Hartley v. Frosh, 6 T. 208; Cannon v. Hemphill, 7 T. 184, * McKay v. Treadwell, 8 T. 176. 7 Lee v. Turner, 71 T. 264 (9 S. W. Rep. 149). The wife's children by a former husband are not necessary parties. St. L., A. & T. Ry. Co. v. Ticer, 3 App. C. C., 402. If a telegraphic message was in fact sent for the benefit of plaintiff's wife, and she was damaged by the negligence of the telegraph company, the husband had the right to sue for such damages, regardless of the question by whom or by what authority the message was sent. W. U. Tel. Co. v. Adams, 75 T. 531. The husband may sue in such a case, although the notice of the claim for damages was given by the wife. W. U. TeL Co. v. Kinsley, 8 Civ. App. .VJ7. 154.] PAK 171 that part of the recovery which would be community prop- erty. Tin- statute does not continue to run until an amendment making tin- husband a real party. 1 The husband, as the representative of the community, may alone sue for and collect any claim due to the community estate of him- self and wife, and a judgment in his favor or against him in such suit will bind the wife as fully as she could be bound hud she been a party to tin- action. 2 The husband is the only necessary or proper party in a suit to recover damages for the wrongful seizure under sequestration of the community property. 8 Such property as is ac- |iiiivd during marriage by reason of a personal trespass committed on the wife belongs to the community. For its recovery the hus- band may sti*-. and the wife is ordinarily neither a proper nor nec- y party. 4 In actions to recover money which will be community property when realized, the wife is not ordinarily a necessary or proper party. A judgment will not be reversed for every erro- neous ruling, but only when the opposite party is injured by such ruling. And a party could not be injured by the improper joinder of the wife, since a judgment in favor of husband and wife is a bar to any subsequent claim set up by either. If excep- tions be taken in the court below, based on the misjoinder of hus- band and wife as plaintiffs, when the wife is not a necessary or proper party, and an injury be shown to defendant as a result thereof, the overruling of the exception would be cause for re- versal. 5 1 G., C. & S. F. Ry. Co. v. Jones, 3 App. C. C., 21. 2 Jordan v. Moore, 65 T. 363; Gulf, W. T. & P. Ry. Co. v. Goldman, 28 S. W. Rep. I J Edrington v. NYwland, ~n T. 627. *T. C. Ry. Co. v. Burnett, 61 T. 638. 5 San Antonio St. Ry. Co. v. Helm, 64 T. 147; Tex. & Pac. Ry. Co. v. Gwaltney, J A [pp. C. C., 684 Whether the fact that the institution of a suit by husband and wife, for the recovery of community property, would be erroneous or not, when no injury thereby is shown by a defendant against whom they recovered judgment, it will not be sufficient to authorize a reversal when the question is raised for the first time in the appellate court. A judgment recovered in such a suit would le binding on the husband. Hackworth v. English. W T. 1 s *. An action to recover damages on a liquor-dealer's bond for the .-al<- of liquor to ii minor should be brought by the husband. The cause of action is community property. Wartelsky v. McGee, 30 S. W. Rep. 69. Husband and wife may join as plaintiffs in an action for damages for the wrongful seizure by attachment of property exempt by law from ion-ed sale, Craddock v. Goodwin. :A T. r.TS; Cunningham v. Coyle,2 App. C. ( '.. $ m. The abandonment of the wife by the husband and failing to contribute to her sup- port, held not sufficient to authorize her to sue alone on a In juoi -dealer's bond. McGuire v. Glass, 4 App. C. C., 54. A wife who was trustee holding funds for her children invested the proceeds in horses. Her husband in her right sued a trespasser for taking the horses, and it was held that her children were not nec- essary or proper parties. Millikin v. Smoot, 71 T. 759 (12 S. W. Rep. 59). 172 PARTIES TO ACTIONS. [ 154. Damages recoverable for a personal injury to the wife are com- munity property, and are recoverable at the suit of the husband. The exceptional cases in which the wife has been permitted to sue for or manage the community property are those where the husband has abandoned her for a considerable period of time, leaving her destitute of any means of support unless she resorted to community property. 1 The refusal of the husband to become a party to an or- dinary suit to recover community property would not give the wife the ri'o-ht to sue alone when they were living together and he was exercising rightful control over the common estate. 2 The wife has capacity to be a recipient of a wrong as well as of property, the same as though she were a feme sole; and if she be slandered, or an assault and battery be committed upon her, or any trespass or other actionable wrong, by any person other than her husband, she may, after discoverture, prosecute alone a suit against the wrong-doer > whether commenced before or after the discoverture, the same as though she had been sole when she received the injury. A cause of action, the foundation of which is a tort inflicted upon the wife by the husband and another, is not a community right, but is a separate right of the wife; and damages, if recovered in a suit by the wife on such a cause of action, would be her separate property. 3 Where, pending a suit for damages for her son's death, the mother, a widow, marries a second time, the husband is a proper party and should be made party on suggestion of the marriage. The proper practice upon the marriage of a, feme sole plaintiff is to present the fact by motion or suggestion before the trial. The court should then act. 4 On suggestion of the marriage the husband may make himself a party, and he and the wife may prosecute the suit as if they had been originally plaintiffs. 5 1 Wright v. Hays, 10 T. 130; Cheek v. Bellows, 17 T. 613; Fullerton v. Doyle, 18 T. 4; Rice v. Railway Co., 8 Civ. App. 130. Where the wife joins the husband in a suit for damages to the community and dies, her children need not be made parties. G. W., T. & P. Ry. Co. v. Goldman, 8 Civ. App. 257, and 87 T. 567 (29 S. W. Rep. 1062). 2 Ezell v. Dodson, 60 T. 331; Gallagher v. Bowie, 66 T. 265 (17 S. W. Rep. 407); W. U. TeL Co. v. Cooper, 71 T. 507 (9 S. W. Rep. 598); Tex. & Pac. Ry. Co. v. Pollard, 2 App. C. C., 481: Rice v. Railway Co., 8 Civ. App. 130. * Nickerson v. Nickerson, 65 T. 281. The presumption will be indulged that the wife and children were properly made parties plaintiff to a suit instituted during the life of a deceased husband and father to recover damages for an in- jury inflicted on the wife, when the cause of action survives. Fordyce v. Dixon, 70 T. 694 (8 S. W. Rep. 504). Where a wife, suing on a cause of action for per- sonal injuries not reduced to judgment before her husband's death, improperly sues also as next friend of her children, the error is harmless, since the judgment is a bar to any further demand. Tex. & Pac. Ry. Co. v. Watkins, 26 S. W. Rep. 760). San A. St Ry. Co. v. Cailloutte, 79 T. 341 (15 S. W. Rep. 390). R & 1252. 155.] r.\Kin> i A< u< ?' 155. Husband and wife; actions against. The husband and witV must \><> jointly sued for all debts con- (1 l.y the wife for necessaries furnished herself or children, ami for all expenses \vliieh may have been incurred by the wife for the benefit of her separate property. They must also be jointly -in ' I for all separate debts and demands against the wife; but in siu-h case no personal judgment shall be rendered against the hus- band. 1 The wife may contract debts for necessaries furnished herself or children, and for all expenses which may have been incurred by her for the benefit of her separate property, and if the court iinds that the expenses were reasonable, execution may be levied upon the common property, or upon the separate estate of the wife, at the retion of the plaintiff. 2 "When the husband has abandoned the wife and is a fugitive from justice, the wife may bring and defend suits alone for the protec- tion of herself and property. 3 The wife may, in a proper case, for the protection of her separate rights, maintain a suit in her own namf against her husband, and would be entitled to the benefit of writs of attachment, sequestration, injunction or any like writ to which any other creditor would be entitled. 4 In a suit against husband and wife on their joint and several note, it is error to render judgment against the wife without aver- ments showing that the debt was contracted for a purpose which could fix a liability upon her. 5 The suit may be brought against the husband and wife jointly on their joint contract executed for the benefit of the wife's separate property. 6 The wife is a proper party to a suit on a note given by the husband and wife for the purchase-money of property, and to the decree foreclosing the vendor's lien thereon; but it is error to render judgment against her for the debt or costs, when there was nothing to create a liabil- ity on her separate estate. 7 The wife is a proper party to a suit to foreclose the vendor's lien on a note, given by her husband for land deeded to her, and may properly be included in the decree of fore- closure, but it is error to render judgment against her for the ment rendered against the wife. 1 lie must be joined pro forma in a suit against the wife for debts contracted before marriage, 2 and the community is liable for such debts. 8 The husband must be brought in when a, feme sole defendant marries pending the suit. 4 156. Surviving husband or wife and heirs. The surviving husband cannot recover alone for damages caused to the community estate; his children are tenants in common with him and must be joined. For any damage he may sustain to his right of present occupancy he may recover. 5 But it is held that where it does not appear that there is any necessity for an adminis- tration, and there is none, the widow alone may maintain an action to recover the community property or its value, without joining children of the deceased husband. 6 A telegram was sent during the life-time of the husband. Suit for damages for its non-delivery was instituted after his death by his wife, and it was held that after the husband's death the surviv- ing wife is placed by law in most respects in the attitude of a sur- viving partner, and until an administration is opened upon the estate she may maintain suit to collect and preserve the community estate. The suit was properly brought. The widow does not occupy to the community estate the relation of an heir, nor are her rights and ]><>\\<>rs derived from the deceased by inheritance, but originate in the acquisition of the community property under the laws l>y which the title and powers of the husband and wife are defined. Ordi- i Steinback v. Weill. 1 App. C. C., 935. ish v. George, 6 T. 234. 'Taylor v. Murphy. 50 T. 291. * Reed v. Cavitt, 30 S. W. Rep. 517. Rowland v. Murphy, 66 T. 534 (1 S. W. Rep. 658). In H. & T. C. Ry. Co. v. Kuapp. ~>l T. V.i-,'. the surviring wife sued for injuries to the homestead and the growing thereon. No charge was asked limiting plaintiir's recovery for permanent damages to the land according to her estate or interest, and thus ap- poitioning the damages. As she was at the time of the overflows not only occupying the land as her homestead, with the right to so continue to occupy it .luring her life, but was in virtue of her community rights the owner of a half interest therein, and also before suit brought became, by partition, the absolute owner in fee, the court did not feel called upon to inquire wh.-thrr some part of the damages might not have been deducted I.. . au-- of tin- ii of others in the land. See, also, Int & G. X. Ry. Co. v. TiniiH.-rni.iii. til T. 660. . C. & S. F. Ry. Co. v. Jones, 3 App. C. C.. S 15. it is held that the sur- viving widow, as the head of a family, is entitled, during her life-time, to tin- exclusive possession and enjoymi-nt of the hoim-*tcad. and may maintain, in her own name and right, an action to recover damages to such homestead or the crops growing thereon, and that the surviving children of the deceased an- not necessary parties plaintiff, overruling Mo. Pac. Ry. Co. v. Teagur. 'J App. C. C., p. 685. Chambers v. Ker, 6 Civ. App. 373 (24 S. W. Rep. 1118); Walker v. Abercrum- bie, 61 T. 69. 176 PARTIES TO ACTIONS. [ 156. narilv, hoirs cannot sue upon a cause of action which accrues to an amvstor, but suit must be brought by an administrator or executor. ( 'hildren of the husband inherit his half of the community property, subject to the wife's control for the payment of community debts; sin-' is trustee for the heirs, and judgments for or against her are binding on them. If an administration was pending, it was incum- bent on defendant to plead and prove it; and inasmuch as the facts allied showed a right of action in the plaintiff, it was not necessary to determine whether an administration would suspend plaintiff's riuht to sue or not. 1 The widow's right to manage the community ceases with her marriage. As payee of a note made for land sold by the com- munity, in suing for foreclosure of vendor's lien after her second marriage, her children were necessary parties. 2 The rule as to the right to sue for community property is thus stated : The right to sue on the death of the husband is, 1, in the administrator, if any ; 2, in the widow on showing compliance with the law by filing bond and inventory ; or 3, by showing no administration and no need of one, in absence of debts or from lapse of time, in which case the heirs would be allowed to sue. 3 A judgment against a surviving husband, obtained in a suit upon a community debt, which is begun after the wife's death, is bind- ing upon the community property, though the heirs of the wife are not made parties and the pleadings fail to allege that the claim is for a community debt. This results from the powers and obliga- tions of the husband by virtue of his position as head of the marital partnership. 4 But where the heirs have reduced the interest of their deceased mother to possession, a suit by creditors on a com- munity debt, against the surviving husband alone, will not affect the rights of the heirs. 5 Though the administrator of a deceased husband's estate has authority to maintain a suit to recover land belonging to the community for purposes of administration, with- i W. U. Tel. Co. v. Kerr. 4 Civ. App. 280 (23 S. W. Rep. 564). 2 Llano Imp. Co. v. Cross, 5 Civ. App. 175 (24 S. W. Rep. 77); Puckett v. John- son, 45 T. 550. Though cases may arise in which a surviving wife, who has qualified under the statute to administer the community estate, may make her- self a party to a suit pending for or against her husband at the time of his n the existence of community debt*. In suits for dam- to the freehold, where the present right of future possession of the heirs is involved, it has been held that he could only recover for injury to his present right of occupancy, and that the right of the heirs, not being a community claim, would not be affected; : but as respects community claims, the husband has the sole power to bind the community, and is alone bound by contracts relating thereto, and it is held that his power should be extended so as to give him the right to sue for, collect, and preserve the community estate in trust for himself and others interested, as creditors or otherwise, subject to be controlled by a court of equity when nec- essary to protect the beneficiaries. 1 167. Suits by executors, etc. Suits for the recovery of personal property, debts or damages, and suits for title or for the possession of lands, or for any right attached to or growing out of the same, or for any injury or dam- age done thereto, may be instituted by executors, administrators or guardians appointed in this state, in like manner as they could have been by their testator or intestate. The judgment in such cases is as conclusive as if rendered in favor of or against the testator or intes- tate; but it may be set aside by any person interested for fraud or collusion on the part of the executor or administrator. 4 The administrator may bring and maintain suits for lands belong- ing to his intestate's estate without joining the heirs.* It was de- cided at an early day, from the general authority intrusted to an Administrator by the probate laws, that he could, without the heiis being joined with him, bring and defend suits for land to protect the interests of the estate. 8 But it is said that this rule was changed by the probate act of 1370, which required that the heirs should be made parties when the title to land was affected by the recovery 1 Rudd v. Johnson, 60 T. 91. * Rowland v. Murphy, 66 T. 534 (1 a W. Rep. 654). Gulf, W. T. & P. Ry. Co. v. Goldman, 87 T. 567 (29 a W. Rep. 1062; 8 Civ. App. 2.J7), citing Moody v, Smoot, 78 T. 119 (14 a W. Rep. 285). A widow may sue a telegraph company for damages for mental suffering caused by failure to deliver a telegram, whereby she was prevented from seeing her husband before he died. The suit is not for the recovery of community property, but if it were, she could maintain it as survivor. W. U. TeL Co. v. Kelly, 29 a W. Rep. 408. R.a 111)7. Graham v. Vining, 2 T. 43; Howard v. The Republic, 2 T. 31L Guilford v. Love, 4!> T. 178 PARTIES TO ACTIONS. [ 157. in the suit. 1 It is now provided by article 1198 of the Revised Stat- utes that in every suit against the estate of a decedent involving tin.' title lo real estate, the administrator and heirs shall be joined; and whatever may have been prescribed by the law referred to, it seems to be the rule now that the heirs are not necessary parties. 2 An executor or administrator may maintain a suit to remove cloud fr>m title to land owned by the heir without joining the heir as a partv, and the judgment rendered will conclude the heir in the ab- sence of fraud and collusion. This is by virtue of the statute at the Ix-ail of this section; but article 1198 of the Eevised Statutes is equally explicit in requiring that the heir shall be made a party de- fendant to any suit brought against the estate involving title. 3 Though the legal representative of a deceased person's estate is the proper party to bring suit for the recovery of a debt due the estate, since this rule has its foundation in the necessity of protect- ing the creditors of the estate, it does not exist for the benefit of debtors, and is subject to exceptions. The legal representative is entitled to the property of the estate only in a qualified manner and for a specific purpose; for all other purposes the title is in the heir from the moment descent is cast. When after three years had elapsed since the death of the intestate, whose estate was alleged to have been insolvent, and during which time no one had applied for administration thereon, the surviving widow brought an action of debt on a judgment which was the community property of her- self and of her deceased husband, and which was rendered nearly seven years before his death, it was held that, under the facts stated, the surviving widow could maintain the action. Independent of the special facts of the case, the wife, as survivor of the community estate, could, being the owner of the judgment rendered in the life- time of her deceased husband, preserve the debt, against which limitation was nearly complete, by an action in her own name. 4 Gunter v. Fox, 51 T. 383. 2Zacharie v. Waldron, 58 T. 116; Russell v. Railway Co., 63 T. 646 (5 S. W. Rep. 686). ' Russell v. Railway Co., 68 T. 646 (5 S. W. Rep. 686). 4 Walker v. Abercrombie, 61 T. 69; Evans v. Oakley, 2 T. 185. In a suit for land which has been devised it is not necessary that the heirs be made parties; it is sufficient if the executor and the devisees be made parties. Luffkin v. Gal- veston, 73 T. 340 (11 & W. Rep. 340). In a suit by the holder of title under heirs, the defense was a decree in a suit in the district court rendered in 1868, the ad- ministrator being a party; the heirs were not parties. It was held that the decree against the administrator divested title from the heirs. Lawson v. Kelley. s J T. r.T (17 S. W. Rep. 717). The petition below contained the following allegation: "John C. Gibbons and C. Scott, executors and trustees under the last will and testament of E. Gib- us, deceased, plaintiffs, complaining of, etc represent that on the day of January, 1883, plaintiffs were lawfully seized and possessed of the f land hereinafter described, . . . holding the same in fee-simple [do >.] PAi: AVherc there is a pending administration on an estate, the heirs cannot sue alone to recover real or personal property which would -ets in the hands of the administrator for the payment of debts. If there is ai of interest in the estate which belongs to the heirs by inheritance, and which would not be assets, they may sue J'or it. 1 i 58. Suits for land against decedents. In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs, must be made parties defendant. 2 The heirs are necessary parties in suits under this article. 3 It is held that the above article applies to suits in which the title of the estate to land is brought in controversy, and not to such as merely seek to enforce a li vi upon it. The heirs are not necessary parties to a suit br<> airainst an independent executor by a lien creditor to enforce his lien against the land of the estate. 4 "\Vhen affirmative relief is asked by a defendant in a suit for land brought by an administrator, the defendant becomes a plaintiff to the extent of such relief, in which case the heirs of the estate suing must be made parties. A judgment against the administrator alone does not conclude an heir to land, title to which may have been litigated in a suit in which the administrator was defendant in the litigation. 5 Heirs and devisees are necessary parties to a suit to establish a right of way across the land of a deceased person. t; In considering the necessity of joining the heirs in suits by and against administrators and executors, reference is frequently had to the probate law of 1876, without any reference to articles 1197 and 1198 of the Revised Statutes. 7 And it is held that on an appli- scribing it]. That afterward . . . defendants entered upon said premises," ft<\ From this it is shown that the plaintiffs were suing in their own right and not as executors or trustees. Roundtree v. Stone, 81 T. 209 (16 S. W. Rep. 1035). i Putnam v. Young, 57 T. 461. 2R.S. 1198. Russell v. Railway Co.. 68 T. 646 (5 a W. "Rep. 686). Howard v. Johnson, 69 T. 655 (7 a W. Rep. 4 East v. Dugan, 79 T. 329 (15 S. W. Rep. 27.", . Dwyer v. Olivari, 16 S. W. Rep. 800. In an action to quiet title plaintiff . claimed title under a deed of two hundred and fifty acres undivided inter a survey of fourteen hundred and fifty-two acres of land, and a parol partition of a specific two hundred and fifty acre tract. Defendants denied tin- partition and claimed under deed from the same grantor of twelve hundred and two acres undivided interest in the same land. It was held that after plaintiff withdrew his claim for any excess of fourteen hundred and fifty-two acres in tin- Mirv.-y. -sue lay between him and defendants only, and }\> ...n grantor oilier than the parties in the suit were not necessary p u . l Doll v. Mun'line, \V. !{..,). \,,p. 96). ISO PARTIES TO ACTIONS. [ 159, 160. cation for an order of sale under a decree against an administrator loivelosing a vendor's lien, the heirs are not necessary parties. 1 Also in suits against an estate by the holder of a title bond. 2 169. Survivor and representative. A surviving partner or joint obligor, and the representatives of the deceased partner or joint obligor, may, as a general rule, be joined as defendants in the same suit. And the surviving obligor might in the same suit obtain any relief to which he is entitled against his co-defendant ; as, when he has signed a note as surety, he might be subrogated to the rights of the plaintiff, the debt stand- ing for his benefit, as established against the estate. 3 And so, \\licre one of two joint defendants dies pending the suit, the exec- utors of the deceased defendant may be made parties, and the judg- ment of the court be rendered against all the defendants jointly, with an order that execution should issue against the surviving de- fendant, and that the executors should pay the judgment in due course of administration. 4 Suit pending at the death of the intestate may be prosecuted against the administrator ; and the judgment is a preferred claim over those of the same class not presented. 5 In a suit on an exec- utor's bond, where one of the principals and one of the sureties are dead, the principal surviving cannot object to the non-joinder of the legal representatives of the deceased executor or surety. 6 160. Heirs; suits by and against. The general rule is that, while administration is pending on an estate, a suit for the recovery of the property of the estate should be brought by the administrator. To this rule the following ex- ceptions exist, viz. : 1. When the administrator cannot or will not act for the protection erf those beneficially interested. 2. When land adversely possessed by those claiming under the administrator, through deeds made in his individual and representative capacity, is sued for by the heirs or those claiming under them. In such case the interest of the administrator would be antagonistic to those claiming, and he could not move as a plaintiff in a suit in their be- half. 7 Heirs, in order to be entitled to sue for a claim of their an- i Heath v. Garrett, 50 T. 264. *Guilford v. Love, 49 T. 715. 1 Henderson v. Kissam, 8 T. 46. But in order to authorize the joinder of the representatives of a deceased obligor, it must appear that the claim has been presented and rejected. Wiley v. Pinsou, 23 T. 486. * Bennett v. Spillars, 7 T. 600. When the defendant dies pending the suit, it is not necessary to present the claim. Boone v. Roberts, 1 T. 147. Converse v. Sorley, 39 T. 515. 8 Stephenson v. McFaddin, 42 T. 323. 7 Rogers v. Kinnard, 54 T. 30. '').] I'AIITIES TO ACTIONS. 1M r, must prove some fact bringing them \vithin some one of the '(ions to the rule; as. lu|f of more than four years without administration, or that administration has been closed, and that there are no debt* against the estate. 1 Th<-y cannot maintain an !i to recover property of the estate while administration is pending, unless there are no debts unpaid against the estate and no -ity for administration,* To this rule an exception is recog- d where suit is necessary for the preservation of the estate,' the protection of the heirs. 4 long as there are unpaid debts due an estate, the recovery for an injury to the estate would be assets in the hands of the admin- istrator and suit should be brought in his name. In order for heirs to maintain a suit on the administrator's bond, they must show an injury to them as heirs. If there are creditors whose claims might ali-orb the estate, the injury is, prirna facie at least, to the estate and to the creditors, and not to the heirs. 3 Title to the property of an estate vests in the heirs, where the es- icant, by the removal of the administrator, no debts re- maining unpaid by the estate, and they may sue and be sued in relation thereto. 8 Upon a defendant dying in a proceeding to re- vive a money judgment, the legal representatives are necessary parties; and the heirs are only proper parties in such suit wlu-iv there is shown to be no administration nor need of one. 7 The ob- jection that the petition of one who sues as heir does not show- that there was no administration, and no necessity for administra- tion, cannot be taken by a motion in arrest of judgment; nor is such objection, if properly taken, valid, when the object of the suit is to cancel the conveyance or unauthorized will of the deceased. 8 Ileh 1 Webster v. Willis, 56 T. 468. - Northcraft v. Oliver, 74 T. 162 (11 a W. Rep. 1121). Richardson v. Vaughan, 86 T. 93 (22 & W. Rep. 1112). After the lapse of a interval since any action hail been taken in an administration, which was formally closed, though unpaid claims existed against the estate, suit was brought by the heirs to recover the property of the estate, and it was held that ould not maintain the action. Northcraft v. Oliver, 74 T. 162 (11 S. W. Rep. 11-J1). * Lee v. Turner, 71 T. 264 (9 a W. Rep. 149), citing Rogers v. Kinnard, 54 T. 30: (ii. l.lings v. Steele, 28 T. 748; Saunders v. Devercaux, 23 T. Sup. 12. 'Pevelerv. Pevekr This was a suit by heirs against an at ra- tion, and it was held: 1. The heirs prima facie could not maintain tho suit. 2. The defendants were not required to plead in abatement the non-joinder of th- administrator. :5. The case was one in which tho evidence negatived tho right of action claimed. .ird's Hrirs v. Ward. 1 I*. < '. : Mill.-r. 71 T. 103 (8 a W. Rpp. 638). Veal v. Portion, 57 T. 182 PARTIES TO ACTIONS. [ ICO. are not proper parties in a suit against an administrator to estab- lish a claim against an estate; but their joinder is not ground for reversal where the judgment is entered against the estate alone. 1 Whore suit is brought by one heir against the executor, any adjust- ment or settlement made will not bind the other heirs. 2 All per- sons claiming by inheritance under a named ancestor are concluded a judgment against his unknown heirs, whether claiming imme- 1 lately from him, or as successors of those so inheriting. 3 1 Jenkins v. Cain, 12 S. W. Rep. 1114 In an action by an administrator de bonis non against his predecessor and his sureties in the district court to recover certain suras of money and notes and rents alleged to have been received by the defendant and by him appropri- ated, the answer of the sureties alleged that their principal had paid and ad- vanced to the heirs various sums, which were itemized, and that the heirs were solvent, as was also the estate. It was held proper that the heirs who had re- ceived the advancements should be made parties at the request of the sureties pleading advancements by their principal to the heirs. Oglesby v. Forman, 77 T. 047 (14 S. W. Rep. 244). Suit was brought against a widow and children (some minors, represented by their guardian) upon a judgment against the husband before his death. The widow and children received assets from which liability existed. Pending suit the widow died intestate. The heirs of her husband and of herself were the same. After her death plaintiffs amended, stating these facts, and that there was no administration upon her estate. It was not alleged that administration was unnecessary. Trial was had a few months after her death. Upon objection that proper parties were not made, and allegations showing that administration was necessary, it was held that the suit could not proceed in absence of administration upon the estate of the widow. Judgment was erroneous without joining her representatives. Low v. Felton, 84 T. 378 (19 S. W. Rep. 693). Plaintiff sought to subject to the payment of a note certain property claimed to have been conveyed by a deceased maker of the note in fraud of his credit- ors, and also to subject the proceeds of property descended to the maker's heirs and sold by them. The suit was brought in the district court: afterwards an administrator was appointed, the claim sued on was presented to and accepted by him. and approved by the county board, and it was held: (1) That the ac- :ice and approval of the claim constituted it a judgment against the es- tate, and, ordinarily, plaintiff would have been required to go into the county court to obtain satisfaction of it (2) The administrator was the proper party to sue for such property as descended to the heirs, and no creditor, pending the administration, could sue for its recovery. (3) The property so conveyed formed no part of the estate: the county court had no control over it, and plaintiffs (mid maintain their suit in the district court, except so far as it claimed to property descended to the heirs subjected to their demand. Hudson v. Willis, i;:, T. ;:>(>. Where in absence of debts and of an administration heirs in- stitute suit to recover upon a promissory note and to foreclose a mortgage to secure it executed to their ancestor, a petition setting out the facts, the execu- tion of the note, and the mortgage to secure it by the defendant to the ancestor of the plaintiffs, with date, amount, and interest, with description of the land iiiort^wd, with prayer for relief, will support a judgment final by default for the plaintiffs. Loungeway v. Hale, 73 T. 495 (11 S. W. Rep. 537). 2 Thompson v. Shackleford, 6 Civ. App. 121 (S4 S. W. Rep. 980). R S. 1236; 2 Pasch. Dig., art. 5460; Sloan v. Thompson, 4 Civ. App. 419 (23 8. W. Rep. 613). 161, 1C2.] I'AKTIKS TO ACTI 183 ? 161. Foreign administrator. An oxvut<>r or administrator cannot, as such, maintain a suit in one state ly virtue of letters granted in another. 1 A suit by an administrator cannot be maintained in Texas by virtue of letters of administration issued from the probate court of a sister state, upon a debt belonging to the estate of the decedent, where the title thereto has not been directly vested in the administrator, as when it has been made payable to him, or judgment has been previously iivov.-ivd in his name.-' A legatee, under a foreign administration, admitted to the ownership of personal property, may sue here in his own name for the property without the probate of the will. But he must show that he is entitled to sue in his own right, and not in a trust or representative capacity. 3 A foreign administrator may assign a note payable to the intestate, and the assignee may main- tain a suit upon it. 4 162. Partners; actions by and against. A copartnership must sue and be sued in the names of the part- ners, not as a h'rm. It is not, unless otherwise provided, considered person. The familiar rule, that all partners who are jointly bound upon a partnership contract must be joined as defendants in a suit upon it, is not affected by articles 12^1 and 1347 of the Re- vised Statutes, winch provide for service of process. Partnerships are not by those articles invested with any of the characteristics of corporations, nor are they expressly or impliedly authorized to sue or be sued in their firm names, independently of their members. 5 Suits in relation to the business of a limited partnership may be brought and conducted by and against the general partners, in the same manner as if there were no special partners. 6 As a general rule, all tin- partners must join to recover for the conversion of partniT>hip property. But one partner cannot defeat the rights of the copartner by refusing to join in the suit, and where he so re- 1'iiM-s his name may in some cases be used against his consent. 7 It is held that where one of two surviving partners refuses to join in i M..S, l.y v. Hurrow, 52 T. 396. * Tenvfl v. ( nine, 55 T. 81; Cobb v. Norwood, 11 T. 556; Cheney v. Speight, 28 ; Davis v. Phillips, 32 T. 564; Summerhill v. MeAlexander, 1 App. C. C., 1 084 lon v. Foster, 46 T. 618. M-ky %. National Bank, 82 T. 244 (17 & W. Rep. KKW); Abercroml.i,' v. Stillman. 77 T. .>; , 1 1 s. \V. Hep. 196); Peterson v. Chemical Bank. :>>> N. V. jc,. Frank v. Tatum. >7 T. -J S. \V. Rep. 58& R. S. 3v Barker v. Abbott, 2 Civ. App, 147 (21 a W. Rep. 72). PARTIES TO ACTIONS. [ 163. a suit on a note he may be made a defendant, and thus be concluded l.v tlu- judgment. 1 One partner who makes a contract for the ship- ment of property may sue alone for injury to the property. 3 One coming into a partnership after a contract is made, and retiring and releasing his interest before a suit is brought on the contract, is not a necessary party. 3 Dormant partners may join in suits, but they are not necessary parties in suits on contracts or concerning partnership property. 4 It is said that the rule is subject to exceptions. 5 An a \vard made to a copartner for work done by the firm may be sued upon by such copartner alone. 6 To authorize a partner to sue alone for the value of partnership goods wrongfully taken, his right to recover the entire damages must be pleaded and proved. 7 163. Surviving partners. On the death of a partner pending suit brought in the firm name, it is not necessary to make the legal representatives of the deceased partner a party. 8 Service having been made upon one of two part- ners, and thereafter the partner served having died, and the plaint- iffs having by supplemental petition suggested the death and pro- cured service upon the other partner, with prayer for judgment against the partnership and the partner last served, the heirs of the deceased partner were not necessary parties, since judgment was not sought against them, nor against the estate of the deceased partner. The fact that the surviving partner had not been originally served, 1 Hines v. Dean, 1 App. C. C., 692. * Mo. Pae. Ry. Co. v. Smith, 84 T. 348 (19 S. W. Rep. 509). 'Maverick v. Maury, 79 T. 435 (15 S. W. Rep. 686). And the rule holds where one merely comes into the partnership after the contract is made. Gill v. Bickel, 80 a W. Rep. 919. B. & Co., of which firm one C. was a silent partner, were contractors with the city of Dallas for building a city hall. The contractors sublet a part of the work to L. Dispute having arisen between L. and the contractors they submitted the matter to arbitration, C. acting for the contractors' firm, B. & Co., and claiming to own the balance due on the contract. The agreement to arbitrate authorized the payment by the city according as the award should determine. An award \VM- made and suit was brought by L. against the city and B. & Co., for the amount of the award, or so much of it as was owing upon the contract. No service was had upon C., and the city asked a continuance in order that C. might be served with citation. This was refused, and it was held there was no error, there being no contest about the validity of the award, and that C., by signing the agreement to arbitrate for his firm, was estopped to contest it. City of Dal- las v. Loonie, 83 T. 291 (18 S. W. Rep, 726). 4 Speak v. Prewitt, 6 T. 252; Jackson v. Alexander, 8 T. 109; Garrett v. Muller, 87 T. 589; Keesey v. Old. 3 Civ. App. 1; Boehin v. Calisch, 3 S. W. Rep. 293. 'Keesey v. Old, 3 Civ. App. 1 (21 S. W. Rep. 693). (Jill v. Hirkel, 30 S. W. Rep. 919. ' Houghton v. Puryear, 30 S. W. Rep. 583. Duntuan v. Coleinan, 59 T. 199. 163.] PARTIES TO ACTI' 1 ^ ( "> and that she had not been joined, did not deprive plaintiffs of tlr>ir right to make her a party after the death of the othor partner, and to prosecute their claim against her and the partnership assets, sho having the capacity to represent both for such purposes. 1 In an action airainst a surviving partner for a firm debt, the ex- ecutors of the deceased partner are not necessary parties, since the dissolution of the firm by the death of such deceased partner did not affect the liability of the surviving partner. Nor in such action arc the executors of the deceased partner proper parties, since as to them the creditor can pursue his remedy only in the probate court. In such action execution is properly awarded against the partner- ship assets, despite the fact that the surviving partner may have delivered them over to the executor of the deceased partner, since he could not lawfully surrender their possession and control to the prejudice of firm creditors. 2 Before the introduction of the common law, in a suit on a note made to two partners, and to foreclose a mortgage, it was proper to join the representative of a deceased partner with the survivor. 3 It is held that a surviving partner or joint obligor may be joined as defendant witli the representatives of the deceased partner or joint obligor. 4 But it is said that the rule is well settled that a surviving partner may sue, as such, to recover a debt due the firm, without ji lining in such suit the heirs or legal representatives of the deceased partner. 5 The representative ought not to be allowed to intervene in such a suit, without some good reason appearing therefor. 6 Where one of three partners dies, and another is insolvent and pay* no attention to the business, the remaining one cannot, by call- ing himself the surviving member, sue alone upon a note payable to the firm without showing any assignment or transfer from the other living partner. 7 Davis v. Schaffner, 3 Civ. App. 121 (22 S. W. Rep. 822). 'Dulaney v. Walslie, 3 Civ. App, 174 (22 S. W. Rep. 131). A suit might U> maintained by the executrix of a deceased partner against another partner without having a settlement of the partnership affairs, if tin- obligat ion sued upon shows an indebtedness by defendant independent of the state of the part- nership accounts. McKay v. Overton, 65 T. 82. The surviving partner of a law firm may sue for the amount due for services rendered by the firm before the dissolution of the firm by the death of one of its members. And no mi apparent why he should not also sue in the same action for what might be due him individually fur such services as he rendered in the performance of the same contract after the death of his partner, (.he client having continued the employment with the survivor. O'Brien v. Gilleland, 7J T. 602 (15 S. W. 1; p. > Holdeman v. Knight, Dallara, 566, Henderson v. Kinsain, 8 T. 46, 51, Campbell v. Wallace. 3 App. C. C., 433, citing Fulton v. Thompson, 18 T .ison v. Miller. 55 T. 290. 7 Hine v, Dean, 1 App, C, C., g 690, 1S6 PARTIES TO ACTIONS. [ 164. 164. Suits on official and other bonds Sureties. An aeti.m f<>r damages for breach of official duty by a deputy sheriff, who is under bond to the sheriff, ought to be brought against the sheriff, instead of against the sheriff's sureties and the do] utt v. 1 But the sheriff is not a necessary party to a suit on a bond given by a deputy sheriff as collector of taxes. The bond in such case is treated as a separate obligation to the state, wholly dis- tinct from the sheriff's bond. 2 In suits for damages for wrongfully suing out and levying a writ of sequestration, it is proper practice to make the sureties on the sequestration" bond parties defendant. They have an immediate and direct interest in the amount of damages for which they are bound being properly ascertained. 3 Where there has been judg- ment against the party suing out the sequestration, there is no error in rendering judgment against the sureties on the sequestra- tion bond for costs. 4 And a person becoming a surety on the re- plevin bond becomes a party to the suit, and is liable to have costs adjudged against him. 5 The plaintiff in a sequestration suit who has given a replevy bond may, in a suit for damages, be joined with the respective sureties on the sequestration and replevy bonds. 6 The sureties in a replevin bond may be sued without joining the princi- pal, where the latter is insolvent and a non-resident. 7 Sureties, save in statutory bonds where the statute authorizes it, must be made parties before judgment can be rendered against them. 8 Where it 1 Hurlock v. Reinhardt, 41 T. 530. 2 Butler v. State, 2 U. C. 535. Where a statutory bond was required to be made payable to the state of Texas, but was made payable " to Edmond J. Davis, governor of the state of Texas," it was held that the suit thereon could be maintained in the name of the governor for the use of the state. Ward v. Hubbard, 62 T. 559. 'Tompkins v. Toland. 46 T. 585. 4 Windus v. James, 19 S. W. Rep. 873. 5 Mills v. Hackett, 05 T. 580. 6 Finegan v. Read, 27 S. W. Rep. 261 (8 Civ. App. 33). ; Hi>ughton v. Ledbetter, 37 T. 161. Williams v. Warren. 82 T. 319 (18 S. W. Rep. 560). The case was as follows : An attachment at suit of Warren & Son was levied upon property of the East and Texas Lumber Company. Pending the proceedings Harrison was ap- pointed receiver of the lumber company. The property was sold by the receiver uinii T order of the court and the net proceeds were by order of the court turned over to Williams and Mings, creditors of the company, they first executing a bond to the receiver obligating themselves "to pay such judgment as Warren & Son might recover," with Roland and Moody sureties. This bond was approved by the judge. Neither Williams and Mings nor their sureties were made parties, nor did they appear. It was held that a judgment rendered upon a trial of the att;u hment suit against the obligors on the bond was without jurisdiction. Persons who receive the proceeds of a note belonging to an estate, in payment of a debt of the administrator of the estate, are liable to the estate, and in a suit against them the bondsmen of the administrator and the makers of the note 5.] r.UMIKS TO ACTI 1^7 appears from the terms of an obligation that the surety has con- tracted to become bound by a judgment that has been or may be ivm It-red in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment "btained; but in an undertaking general in character the judg- ment obtained against the principal therein only creates a prima liability against a surety not made a party, nor given an op- portunity to defend the suit in which the judgment was rendered. In suit upon a bond assuming partnership debts, made by one part- ner to a retiring partner, a cause of action is shown against sureties upon the bond upon producing a judgment against the firm ren- dered upon a firm account covered by such bond. It is not neces- sary that the plaintiffs shall have paid such judgment. 1 Where the principal and sureties on a bond have been duly served, but do not appear and answer, the plaintiff may, by amend- ment, allege the principal's insolvency and discontinue as to him, and take judgment by default against the sureties, without having them served with notice of the amendment. 2 ji 165. Parties to suits on official bonds. In any suit brought by the state of Texas, or by any county therein, against any officer who has held his office for more than one term, or who has given more than one official bond, the sureties on each and all such officer's official bonds may be joined as defend- ants in one and the same suit, whenever it is alleged in the petition that it is dillicult to determine when the default sued for occurred and which set of sureties on such official bonds is liable therefor. In any suit by the state of Texas upon the official bond of any officer, any subordinate officer who has given bond, payable either to the state or to such superior officer, to cover the default surd for, or any part thereof, together with the sureties on his offi- cial bond, may be joined as defendants in one and the same suit with sueh superior officer and his bondsmen, whenever it is alleged in the petition that both of such officers are liable for the money sued for, to the end that all equities may be adjusted between them in one suit. "Whenever any official bond is made payable to the state of Texas, or any oiiieer thereof, and a recovery thereon is authorized by or would inure to the benefit of parties other than the state, suit may be instituted on such bond in the name of the state alone for the benefit of all parties entitled to recover thereon. 3 need not be joined, though they may also be liable. Ullman v. Verne, 4 S. W. Rep. 1 Browne v. French, 3 Civ. A pp. \V. Rep. 581). - ]>.ivi.l>.,n v. Heidenheimer. 2 U. C. 490. RS. 188 PAKTIES TO ACTIONS. [ 166, 107. 166. Parties to indemnifying bonds may be made parties to suits against the officers. Whenever a sheriff, constable, or a deputy of either, has been sued for damages for any act done in his official character, and has taken an indemnifying bond for such act so done by him, upon which said act a suit for damages is based, he may make the parties, both principal and surety, on such bond of indemnity parties de- fendant in the suit for damages, and the cause may be continued for the purpose of obtaining service on such parties. 1 Where the sheriff levies an attachment on mortgaged property and takes it f ruin the possession of those who have a right to hold it until the mortgage debt is paid and takes an indemnifying bond, when sued f< >r damages he must move promptly in bringing the parties to the bond into court, 2 It is held that the filing of the proper plea within a week after appearance clay is proper diligence. 3 167. Judicial sales; setting aside. When, in a suit to set aside an execution sale on account of the fraud of the purchaser, there are no equities to adjust between the judgment creditors and the purchaser, no complaint being made as to the validity of the judgment and execution, the creditor is not a necessary party ; and when the relief is sought against the original purchaser through whose fraud the sale was consummated, the pro- ceeding is not collateral in its character, 4 In a suit to set aside a 1 Acts 1885, p. 90: R. S. 1204 Suit was brought against a United States mar- shal and his sureties for the value of goods seized and belonging to plaintiffs. The marshal had taken an indemnity bond; the principals, however, were non- residents. The marshal made his indemnitors parties, and asked that the case be continued in order to obtain service on the principals. This was refused. Without deciding that the above statute can be applied to United States mar- shals, it was held that the court did not err in refusing to postpone the case. The suit for damages for the seizure of the goods was not a suit on the indem- nity bond; no writ of attachment could issue in the suit, and there was no nirthod by which service of citation could be had upon the non-resident prin- cipals. It would have been idle to attempt the service on them. The sureties mi the indemnity bond were properly joined as defendants. Cabell v. Hamilton Brown Shoe Co., 81 T. 104 (16 a W. Rep. 811), * Stiles v. Hill, 62 T. 429. A sheriff levied three writs of attachment on goods for as many different creditors, who acted each without any concert. of action or agreement with the others. Each executed to the sheriff an indemnifying bond. The assignee having the goods in possession when seized under the three writB sued the sheriff and his sureties. The sheriff caused the creditors who executed the indemnifying bonds to be made parties defendant to the suit, and prayed a recovery over against them for any damages that might be recovered against him and his sureties. It was held that the sheriff had as many distinct causes of action as there were indemnifying bonds, and they could not properly !* made parties in the one action in the manner desired. Thomas v, Chapman, 62 T. 19a Land v. Klein, 29 a W. Rep. 657. Stone v, Day, 69 T, 13 (5 S. W, Rep. 642). i''9.] PARTIES TO ACTI< 189 sheriff's sale for inadequacy of price, the plaintiff in execution as well as the purchaser should be made a party. 1 A tender of the purchase-money by defendant in execution attacking the sale \vill obviate the necessity of making the plaintiff in execution a party in the suit to avoid the sale. 3 1 68. Trial of right of property. When property held under several writs of attachment is claimed ly ;i third party, who files his claim and bond under the statute, the better practice is to institute but one proceeding to try the right <>f property, and to make each attaching creditor a party thereto. In such a proceeding the equities and priorities of all parties may 1 justed.* An attachment was levied upon personal property. The property was in possession of a mortgagee of the defendant in attachment. The assignee, under a general assignment by the de- fendant in attachment made subsequent to the mortgage, filed claim bond and oath, and it was held that in the proceedings to try title to the property the mortgagee in possession was a proper party and could be brought in. 4 "Where a lien is reserved in notes given for the purchase of per- sonal property, on which notes a judgment not foreclosing the lien is recovered, and in that suit an attachment is issued and levied on the property covered by the lien, such contract lien may, in an ac- tion for the trial of the right of property, be foreclosed and enforced against a claimant holding the property under transfer from the judgment debtor; and this without making the judgment debtor a party thereto. 5 169. Parties to scire facias to revive judgment. A soire facias is a judicial writ and must pursue the nature of the judgment; and when the judgment is joint the scire facias must also be joint. 6 When a judgment is recovered against two and one dies, the judgment cannot be revived by scire facias against the survivor, unless it is at the same time revived against the representatives of the deceased; and where the plaintiff ob- tained a scire facias against the survivor within the ten years, and, on exception, amended, and made the representatives of the de- ceased also parties, after the lapse of ten years it was held that the judgment could not be revived against either. 7 And when it is i Millrr v. Koertge, 70 T. 162 (7 a W. Rep. 091). i ver v. Nugent, 72 T. 272 (10 S. W. Rep. 458). Blankcnsliip v. Thurman, 68 T. 671 (5 a W. Rep. 836). Dupuy v. Ullraan, 78 T. 341 (14 S. W. Rep. 790). Howard v. Parks, 1 Civ. App. 603 (21 a W. Rep. 269. * Carson v. Moore, 23 T. 450. " Austin v. Reynolds, 13 T. 544; Henderson v. Vanhook, 24 T. 358; a C., 25 T. 433, 190 PARTIES TO ACTIONS. [ 170. sought to revive a joint judgment against the representative of a deceased ]>;irtv, the survivor must also be joined. 1 An action of debt upon the judgment is governed by the rules applicable to ac- tions on joint contracts. 2 A soire facias to revive a judgment is a continuation of the same suit, and the jurisdiction is where the orig- inal judgment was rendered, regardless of the residence of the de- fendants. 1 170. Judgments, setting aside and enjoining. To authorize a re-examination of a case at a term subsequent to that at which the judgment which is sought to be set aside was rendered, all the parties to the former proceeding must be made parties; nor is this rule affected by the fact that the judgment was entered on an unauthorized agreement made by one of the attor- neys in the former suit. All are necessary parties who were affected by the judgment based on such agreement. 4 When an attack is made upon a judgment on the ground of fraud, and the fraud is alleged to be an agreement made between the attorneys represent- ing the plaintiff and those representing the defendants, and it ap- pears that prior to the rendition of such judgment the attorneys for plaintiff were made parties to the suit, and the judgment vested title in them to part of the land in litigation, those attorneys are necessary parties to the suit to set aside the judgment.* In a suit by a judgment debtor to enjoin the execution of the judgment, an assignee who seeks to enforce the judgment is the only necessary party.' But it is held that where the object of the suit is to enjoin, supersede or discharge by set-off a judgment of a justice of the peace in the hands of an assignee, the judgment plaint- iff is a proper party. 7 When the leading object and purpose of a suit is to vacate and annul a judgment, the parties to the original suit or their privies are necessary parties. A judgment is a vested right in the parties by whom it is recovered. If it is sought to review, correct, cancel or annul it, either in the court in which it was pronounced or in an appellate tribunal, the parties to it or their privies must be given the opportunity of being heard before it can be done. It is ac- cordingly held, that where the petition in action of trespass to try 1 Baxter v. Dear, 24 T. 17. 1 If a plaintiff desires to enforce a judgment against one or more of several, without joining all. his remedy is by an action of debt on the judgment. Carson v. Moore, 28 T. 450. Schmidtke v. Miller, 71 T. 103 (8 a W. Rep. 638). 4 Williams v. Nolan, 58 T. 708. City of Goliad v. Weisiger, 4 Civ. App. 653 (23 S. W. Rep. 694). Ellis v. Kerr, 23 S. W. Rep. 1050. 7 Duncan v. Bullock, 18 T. oil. , 1.] i'Aini;> TO AOT1 lll title shows that the title of plaintiff is dependent upon the right to annul and vacate a judgment, the parties to such judgment are necessary parties to the suit, and their omission is ground for dis- missal on demurrer. If the judgment were an absolute nullity, or the plaintilf had the better title to all or a part of the land de- scribed, tlu- action would lie against the person in possession, and all persons asserting title under the judgment, without joining the plaintitf in the former suit. Not so, however, where the judgment is only voidable. 1 ?' 171. Actions against carriers. The consignor may sue the carrier for breach of the freight con- tract (e. g., for injury to stock shipped) without reference to his property in the goods shipped. 2 "Where a contract of sale provides that the property is to be delivered to the buyer at a certain place, and the seller ships it to the buyer at that place, the right of action for loss or injury thereto by the carrier is in the consignor, since, until the delivery, it is at his risk. 3 Where the person with whom a contract of shipment is made brings suit for injury to the property, it is not error to exclude evi- dence that other persons were interested with him in the property. 4 Though in actions against a common carrier for non-delivery or loss of goods or default in conveyance, the owner of the goods is ordi- narily the person to demand compensation, yet one who has a special property in them, as a factor, or a special agreement for carrying them, may sue. So the shipper in whose name the bill of lading was taken may sue, a privity of contract being established between the parties by means of the bill of lading. 5 1 York v. Cartwright, 42 T. 186. Where a judgment is rendered jointly against two persons, and one of them brings suit to enjoin it on the ground of payment, his co-defendant in the judgment is not a proper defendant in the suit. Will- iams v. Bradbury, 9 T. 487. The plaintiff in execution is a necessary party to a suit against the sheriff to enjoin a sale of property levied upon. Ryburn v. Getzendaner, 1 U. C. 849. A person who has conveyed land with covenants of warranty has sufficient interest to seek for an injunction to restrain a sale thereof on execution, especially where the facts establishing the superiority of his right rest in paroL Huggins v. White, 7 Civ. App. 568 (27 S. W. Rep. 1066). * Ma Pac. Ry. Co. v. Smith, 84 T. 348 (19 a W. Rep. 509). 1 Ma Pac. Ry. Ca v. Scott, 4 Civ. App. 76 (26 a W. Rep. 239). Butter was dam- aged while in the hands of the carrier. It was delivered by the consignee to a third person, with the request that the latter sell it for the account of the con- signee and sue the carrier for damages. It was held that such third person, in the absence of other right than as stated, had no right of action. G., C. & S. F. Ry. Ca v. Wolston. 28 S. W. Rep. 23S. Tex. & Pac, Ry. Ca v. Klepper, 24 & W. Rep. 567; G., H. & a A. Ry. Ca v. Barnett, 26 a W. Rep. 782. The right of action belongs to those who were joint owners at the time of the injury, though they were not such at the time the contract of shipment was made. Tex. & Puc. Ry. Co. v. Sims, 26 a W. Rep. G34. * H. & T. C. Ry. Co. v. Stewart, 1 App, C. C., 1247. 102 PARTIES TO ACTIONS. [ 172, 173. Either the owner or the shipper of goods may sue under article :'.L"J. Revised Statutes, for refusal to deliver a bill of lading. For ret u sal to carry goods, as prescribed by article 321, it is held that the right of action is in the owner. 1 172. Actions against telegraph companies. The rule in this state is, that the right of action for damages caused by the negligence of a telegraph company in receiving, transmitting or delivering a message is in the one for whose bene- fit the message is sent, whether it be sent at the request of such person or by another for him and for his benefit. And it is not material to the rights of such person that his interest or the send- er's agency in the matter should be known to the company or its agent. 2 For damages suffered by the wife the husband may sue alone.' Where the damage was to a firm, and the claim was as- signed to one member thereof, he could sue. 4 173. Tenants in common. One tenant in common may sue for and recover an entire tract of land, as against a mere trespasser or one having no title. 5 This rule was not affected by any changes made in the law by the adop- tion of the Eevised Statutes, and it is held that the requirement that a plaintiff shall state the extent of his interest does not affect the rule. 6 As between the defendant and a tenant not joined, how- 1 Mo. Pac. Ry. Co. v. Price. 3 App. C. C., 361. 2 Loper v. Telegraph Co., 70 T. 689 (8 S. W. Rep. 600); W. U. Tel. Co. v. Broesche, 72 T. 654 (10 S. W. Rep. 734); W. U. Tel. Co. v. Jones, 81 T. 271 (16 S. W. Rep. 1006); W. U. Tel. Co. v. Beringer, 84 T. 38 (19 S. W. Rep. 336); Martin v. Telegraph Co., 1 Civ. App. 143 (20 S. W. Rep. 860); W. U. Tel. Co. v. Carter, 2 Civ. App. 624 (21 S. W. Rep. 688); W. U. Tel. Co. v. Evans, 5 Civ. App. 55 (23 S. W. Rep. 998). Loper v. Telegraph Co., 70 T. 689 (8 S. W. Rep. 600); W. U. Tel. Co. v. Adams, 75 T. 531 (12 S. W: Rep. 857). Damages to both husband and wife by negligent deliv- ery of a telephone message may be recovered in one suit in which both join. Southwestern T. & T. Co. v. Dale, 27 S. W. Rep. 1059. 4 Martin v. Telegraph Co., 1 Civ. App., 143. Telegraphic messages were sent by the son to the father, but owing to negligence and delay in the delivery the father was delayed in reaching Dallas before the burial of another son of whose illness and death he was not advised otherwise. The son paid the charges for sending the messages. The father and son were joined as plaintiffs against the telegraph company for damages, and it was held that exceptions by the defend- ant to the petition for misjoinder of plaintiffs and of causes of action were rightly sustained. Anderson v. Telegraph Co., 84 T. 17 (19 S. W. Rep. 285). 6 Contreras v. Haynes, 61 T. 103: Ney v. Mumme, 66 T. 268 (17 S. W. Rep. 407); Hancock v. Tram Lumber Co., 65 T. 225; Johnson v. Schumacher, 72 T. 334 (12 a W. Rep. 207); Wright v. Dunn, 73 T. 293 (11 S. W. Rep. 330); Carley v. Parton, 78 T. 98 (128. W. Rep. 950); Mitchell v. Mitchell, 80 T. 101 (15 S. W. Rep. 705); Harbor v. Dyches, 14 S. W. Rep. 580; Croft v. Rains, 10 T. 523; Watrous v. Mc- Grew, 16 T. 510; Hutchins v. Bacon, 46 T. 414; Read v. Allen, 56 T. 176; Russell T. Oliver, 78 T. 11. 'Sowers v. Peterson, 59 T. 216; Pilcher v. Kirk, 60 T. 162; Telfener v. Dillard, 70 T, 139 (7 S. \V. Rep. 847); Alien v. Peters, 77 T. 59 (13 & W. Rep. 767). ,3.] PARTIES TO ACT! 193 ever, tlic suit is not an estoppel; and where the defendant > lishes title to a part interest in the land, plaintiff cannot recover for other tenants in common not parties. 1 A tenant in common may defend for the interests of his co-tenants as well as for himself. 2 Win-re two co-tenants join, if either shows a clear title they may j.iinst one snowing no title. 3 In a suit to recover damages for an injury to real property, all the tenants in common must join. 4 The rule applies where a father unit in common with the children of himself and wife sues for damages. That the premises were used before and after the death of the wife as a place of business might entitle the husband to re- 1 for injury to the right of present possession, but the children, to the extent of their present right of future possession, suffer in- jury, and their cause of action could not be barred by a judgment in favor of their father. 5 While all tenants in common should join as plaintiffs in an action for trespass, still a defendant can, and should, by instructions asked, protect himself upon the trial and have damages apportioned, and require the verdict to be limited to the proportional interest held by the plaintiffs. 6 To avoid multiplicity of suits, all the tenants in common must join in a suit of trespass quare clausum fregit} A recovery by a co-tenant for damages to land owned in common by him and others, but inclosed and used by him for a pasture, occasioned by the neg- ligent burning of grass by a railway company, is not a bar to the subsequent suit of another co-tenant for damages sustained by rea- son of such negligent burning, to which all the co-tenants are par- ties. Though all the co-tenants should join in such suit, yet if the co-tenant bringing the first suit sued for the entire damage, and the railway company failed to interpose such defenses as it was en- titled to do under the law to prevent such recovery, which would have been a plea in abatement for the non-joinder of the other co- tenants, or by way of apportionment of the damages on the trial, then such judgment is not a bar to the subsequent suit of the other co-tenants for the damages to their interests. The rule that, where tenants in common have a joint action for a trespass, a release and settlement of damages for such trespass by one of the tenants in common binds his co-tenants, and is a bar to an action by them." does not obtain in this state. 8 i Boone v. Knox. 80 T. 642: Allen v. Peters, 77 T. 59 (13 a W. Rep. 767X 2 Linnartz v. McCull.K-k. 27 S. W. Rep. 279. 'Flannagan v. Nasworthy. 1 Civ. App. 470 (20 S. W. Rep. 839). 4 a, C. & S. F. Ry. Co. v. Cusen berry, 88 T. 525 (26 S. W. Rep. 43). Rowland v. Murphy. 6 T. .VJ4 . 1 S. W. Rep. 658); May v. SlaUe, 24 T. 205. Lee v. Turner. 71 T. 'J>4 (9 S. W. Rep, 149). : May v. Slade, 24 T. 208: Parks v. Dial, 56 T. 261. SGillum v. St L., A. & T. Ry. Co., 4 Civ. App. ;-,3 (23 a W. Rep. 716). When, 13 PAKTIES TO ACTIONS. [ One tenant in common or joint tenant cannot maintain a suit for the recovery of rent, when the contract is joint and the rent is to be paid to the co-tenants jointly ; but a petition defective in this respect may be amended. 1 But one of several tenants in common recovering land held by a trespasser, or by one without license from any of the owners, can recover rents pro rata against such occu- pant. 2 The institution of a suit by a tenant in common, there being nothing to indicate that the suit is brought for the benefit of any other part owner, will not stop the running of the statute of limita- tion against any others than himself. By the institution of an un- successful suit he binds no one but himself. Other joint owners are not estopped by a judgment against him. 3 "Where one tenant in common holds the legal title, one claiming to be a co-tenant, and whose interest is denied, may sue him, with- out joining the other tenants, to have his interest declared, and to recover for advances made for the common benefit. 4 174. Fraudulent conveyance; parties to suits to set aside. A simple contract creditor may sue to set aside a fraudulent con- veyance. 5 Creditors and subsequent purchasers are the proper parties to attack such a conveyance. 6 And it is held that an ad- ministrator cannot maintain the suit. 7 But it is said that an excep- tion exists where the deceased retained possession of the property until his death ; and administration having been granted before the fraudulent donee took possession, it was held that the property was assets, and that the administrator, as the representative of the cred- itors, might maintain a suit for its recovery. 8 The creditor and vendee are the only necessary parties to a suit to set aside, as fraudulent as to creditors, the deed of one who died without property, and on whose estate no administration has been taken out. 9 All beneficiaries adversely interested to the plaintiffs are necessary parties defendant in a suit by a part of the beneficia- by agreement between tenants in common, one has the exclusive use and pos- session of a part of the common property, while the other has like use of other lands thus owned, either may recover for an injury done to the property to which he lias right of such exclusive use or occupation. G., C. & S. F. Ry. Co. v. Wheat, 68 T. 133 (3 S. W. Rep. 455). 1 Weinsteine v. Harrison, 06 T. 546 (1 S. W. Rep. 626). 2 \Vhitaker v. Allday, 71 T. 623 (9 S. W. Rep. 483). 'Burleson v. Burleson, 28 T. 410; Stovall v. Carmichael, 52 T. 383. 4 Cotton v. Coit, 30 S. W. Rep. 281. 'Shirley v. Railway Co., 78 T. 131 (10 S. W. Rep. 543). Cobb v. Norwood, 11 T. 556; Danzey v. Smith, 4 T. 411; Avery v. Avery, 12 T. 54; Connell v. Chandler, 13 T. 5. Wilson v. Demander, 71 T. 603 (9 S. W. Rep. 678). Hunt v. Butterworth, 21 T. 133. . Heard v. McKinney, 1 U. C. 83. 75, 176.] PARTIES TO ACTIONS. 195 ries to set aside a trust deed giving preference to creditors in the order named in it. Those having priority over the plaintiffs are adversely interested and cannot be represented by them in such suit. 1 175. Mandamus proceedings. It is a general rule that when the performance of a duty is sought to be compelled by the writ of mandamus, all persons charged with the performance of that duty must be made parties defendant in the writ. 2 All parties interested should be summoned, if known, to come in and defend their interests. If they are not summoned, and, having knowledge of the proceedings, fail to come in and defend, tli\v may not bring a separate action to litigate the same matter.* All persons who, to the knowledge of the applicant, are interested should be summoned to defend a proceeding to compel a surveyor to survey or the commissioner of the general land office to issue a patent. 4 The parties interested in such a case may come in and try the issue made by a contest of the return of the surveyor, the return being to the effect that the land had been previously sur- d or was covered by an original title. 5 176. Perpetuating testimony. In a suit under the statute to perpetuate testimony it is onlynec- y that those who are made defendants have, or are supposed to have, an adverse interest. It is not necessary that all the parties adversely interested should be joined as defendants, since the testi- mony perpetuated can only affect those who are made parties. 8 1 Hudson v. Milling & Elevator Co., 79 T. 401 (15 S. W. Rep. 385): Collins v. Sanger, 8 Civ. App. 69. Four creditors by simple contract, in one action, sued their common debtor, and, charging that other parties had conspired with him to defraud plaintiffs, and were in possession of the proceeds of his proj>>rty. Bought against them a personal judgment for the amount of plaintiffs' claims against the debtor. It being the law that the proceeds of property fraudult-ntly conveyed and in the hands of a transferee who was a party to the fraud cannot be readied by personal judgment against the transferee, there was a misjoinder <>f parties plaintiff. Following Le Gierse v. Kelluiu, 66 T. 342 (8 & W. Rep. 509). Blum v. Goldman, 66 T. 621 (1 S. W. Rep. 899). 2 Gaal v. Townsend. 77 T. 464 (14 S. \V. Rep. 365). A county f. >iniiiissi<>ncr \v;is elected and qualified as mayor of a town in the county. The county judge, thinking the office of commissioner vacated by the act of qualifying as mayor, appointed a successor. Mandamus was brought against the county judge and his appointee, and it was held that the other county commissioners were neces- sary parties. Smith v. Porter, 2 T. 57. 4 Cullera v. Latimer, 4 T. 329. i 1 kins v. Kirchain, 10 T. 375. In a suit by one claiming pre-emption rights, brought against the county surveyor to compel, by mandamus, a survey, and against parties in possession to recover the land, the plaintiff may dismiss as to the surveyor and prosecute the suit to try title against the parties in possession. Throckington v. Davenport* 55 T. 236. St L., A. & T. Ry. Co, v. Harris, 73 T. 375 (11 S. W. Rep. 405); R. a 2277. J96 PARTIES TO ACTIONS. [ 177. 177. Various interests in land. in a suit for specific performance, a previous vendor, in whom the title yet remains, is a proper party. 1 Heirs are not necessary parties in a suit for specific performance of a contract made by their ancestor; 2 the executor or administrator is the proper de- IVndant: but it would not be error, it seems, to join the heirs. 3 Where the surviving husband was sued for specific performance of a contract to convey community property, a motion to join the heirs of the deceased wife, made after a long delay, was properly overruled. 4 Where A. made his title bond to B., and B. assigned to C., and C. executed his bond to D., and the latter to E., in a suit by E. against A. for specific performance the intermediate parties were necessary parties to the suit. 5 Where a vendor conveys by general warranty, a judgment in a suit prosecuted by him, after the conveyance, to quiet the title, will inure to the benefit of his vendee, though the latter was not a party to the suit. 6 In an action involving the title to real estate in which the defend- ant does not make his warrantor a party, the judgment therein is not an estoppel against said warrantor, nor is it evidence in an ac- tion by defendant against his warrantor for breach of warranty of the superiority of the title upon which recovery was had against defendant. 7 Where it is charged that the original grantee had parted with his title, he is not a proper party to a suit to recover the land from a purchaser participating in the fraud in obtaining the title. 8 Under our system, in which there is no distinction, as to the man- ner and time of their enforcement, between legal and equitable rights, the joinder by mutual consent of plaintiffs in trespass to try title, in one of whom is vested the legal title, and in the other the equitable interest, based on a contract with the owner of the legal title, though an irregularity, is not fatal to the action, and would constitute no ground for reversal. 9 In a suit for the recovery of land, and a direct attack upon the judgment under which it was sold, any person claiming the land under the judgment is a proper 1 Allcorn v. Butler, 9 T. 56. 2 Shannon v. Taylor, 16 T. 413; Ottenhouse v. Burleson, 11 T.87; Holt v. dem- ons, 3 T. 423; Owen v. Shaw, 20 T. 81. 3 Ottenhouse v. Burleson, 11 T. 87. It is held that minor heirs may be brought in. Kegans v. Allcorn, 9 T. 25. 4 Burleson v. Burleson, 15 T. 423. Allison v. Shilling, 27 T. 450. Kramer v. Breedlove, 3 S. W. Rep. 541. 7 McGregor v. Tabor, 26 S. W. Rep. 443. State v. Land Co., 73 T. 450 (11 S. W. Rep. 488). Satterwhite v. Rosser, 61 T. 166. 178.] PARTIES TO ACTIONS. T.'T party. 1 Where several persons join in the same petition to recover distinct tracts of land, there being no common interest in any of the tracts, a demurrer for misjoincler is improperly overruled. 2 In a suit on a contract for the price of timber, the defendant has the right to have one made a party \vho contests plaintiff's title to the land. Such party cannot intervene. 8 178. Lien-holders and incumbrancers. Where different persons hold liens on the same property, who are knmvn, they should all be made parties, if practicable, when the right of any one of them is sought to be enforced. 4 A person claim- ing to have taken a mortgage without notice of a lien sought to be enforced is a necessary party. 5 Where a mortgage is executed to secure two notes falling due at different times, the holder of the note first falling due is a necessary party to a suit to foreclose brought by the holder of the other note. 6 In a proceeding to revive a judgment and declare a lien on land for the amount thereof, the parties executing the note on which the judgment was rendered, as well as a subsequent purchaser iHeidenheimer v. Loring, 6 Civ. App. 560 (26 S. W. Rep. 99). 2 O'Xeal v. Lockhart, 2 U. C. 597. One claiming title through a conveyance made by the surviving wife is not a proper party to a probate proceeding to subject the land to the payment of the deceased husband's debts. Nix v. Mayer, \V. Rep. 819. In a suit to compel a surveyor to make a survey and return the field-notes thereof to the general land office, all who are known to assert claim to the land are proper parties. Tex. Mex. Ry. Co. v. Locke. 63 T. 623. A. and B. joined in the preparation of a watering place for stock on the land of another. A. sued B. for damages sustained by being prevented from using the water, and it was held that the owner of the land was not a proper party. WI-M fall v. PtTry, 23 S. W. Rep. 740. Suit for land over which a railway was con- structed was brought by the owner against the rail way company. Pending the suit the road was placed in the hands of receivers. The receivers were made parties, and objecting it is held that they were proper if not necessary parties to tli- suit. San A. & A. P. Ry. Co. v. Ruby, 80 T. 172 (15 S. W. Rep. 1040). A. executed a deed containing a covenant against incuinbrances to B. for an undivided one-half of a lot Subsequently he sold the entire lot to C., leaving a balance of the purchase-price unpaid. A. was held to be a proper party with C. in a suit by B. for one-half the proceeds of a sale of the lot by C. Marshall v. Spillane, 7 Civ. App. ",:;> (27 S. W. Rep. 162). See opinion for lengthy allegations in a petition filed by the state, in a suit brought under the provisions of the art of 1883, known as "the Laud Fraud Act," under which it was held that the join- der of all the defendants and of all the purchasers of land in one suit was proper, it not necessary. In a suit brought by the state under the "Lainl Frauuhsejuent inrumliraneers, 1 subsequent purchasers and mortgagees. J!ut where the original mortgagor has parted with his title, he is no longer a necessary party. 2 The holder of a note secured by the mortgage sought to be enforced at the suit of the holder of another must be joined. 3 Where a mortgage is given to secure the of several creditors, falling due at the same time, the credit- -randing on the same footing as to priority, they are all neces- sary parties. 4 All persons who may redeem, as a tenant for a term of years, are > Disregard the prayer and enter a decree not prayed for. Hence if in proceed- ings by attachment an intervener attacks the claim of the original plaintiff for fraud, ami prays that the proceeds of the attached property may be applied to the satisfaction of his own claim, and to that of subsequent attaching creditors a-'-'>rding to the priority of their liens, and on the trial the claim of the plaint- iff is adjudged fraudulent, it is error to decree payment to the plaintiff of su.-h fund as may remain after discharging the debt due the intervener, in ilis- 1 of other attaching creditors; and this though such other attai-lung cred- itor- have not been made parties. In such a case, before entering the final .all the attaching creditors should be made parties. When the clrtrrinir.a- ti"i> of priority of liens is involved, all claiming liens who are interested in the distribution of the fund are necessary parties. Cook v. Pollard, 70 T. 7v : - >. \\ . i Hall v. Hall. 11 T. 526; Mills v. Traylor, 30 T. 7; Nix v. Cardwell, 2 U. C. 200 -Hall v. Hall, 11 T. 526; Buchanan v. Monroe, 22 T. 537; Mills v. Traylor, 30 T. 7. 3 Delespine v. Campbell, 45 T. 629. ; MrDonough v. Cross, 40 T. 251. Lockhart v. War.l, -K T. 'J-,'7; Andrews v. Key, 77 T. 35. MI, It 7. v. Garey, 49 T. 49. " Pridgen v. Andrews. 7 T. 461. L., A. & T. Ry. Co. v. Whitaker, 68 T. 630 (5 & W. Rep. 448); Dalian v. Hollacher, 2 App. C. C., g 52& 200 PARTIES TO ACTIONS. [ 179.. of his title a party, and a decree of foreclosure and sale, have no> effect upon the title of such purchaser when there exists either act- ual or constructive notice of his purchase. While the foreclosure proceedings against the mortgagor do not conclude the purchaser's right to redeem, they do not free the land from the lien. The pur- chaser's title is not strengthened by the foreclosure proceedings to which he was not a party. While such foreclosure proceedings nirainst the mortgagor after he had parted with the equity of re- demption are defective as a foreclosure, still the judgment is good as a personal judgment against the mortgagor, ascertaining th& amount of the claim, and removes the operation of statutes of lim- itation upon the original claim or cause of action. The purchaser at sheriff's sale under the decree of foreclosure, when sued by the holder of the equity of redemption not concluded by defective fore- closure suit, may reconvene by pleading his title by subrogation to the mortgage, and have the land subjected to the equities held by him. 1 Where one purchases cotton at an execution sale on a judgment in his favor, and afterwards a mortgage on the cotton is foreclosed without making such purchaser a party to the suit, he is entitled to an injunction to enjoin a sale of the cotton under the decree of foreclosure. 2 It would be allowed to join in one suit allegations to reform a mortgage to supply a defect from mutual mistake, with foreclosure of the instrument as corrected. In such a case subse- quent purchasers would be necessary parties. 3 It has been held that the holder of a senior mortgage is not a necessary party defendant. 4 But he is a proper party. 5 1 King v. Brown, 80 T. 276 (16 S. W. Rep. 39). A mortgage covered a large tract of land. The mortgagor subsequently sold a part of the tract. The mort- gage was foreclosed against the estate of the mortgagor, the purchaser of the part not being made a party. It was held that the purchaser was not affected by such foreclosure, and he was not required to return the purchase-money as a condition for recovery. Had he been a party he might have defeated the claim by limitation; or at least he might have obtained an order requiring the mort- gagee to sell that part of the land not disposed of before sale of his part. Brad- ford v. Knowles. bo T. 505 (25 S. W. Rep. 1117). A receiver was appointed in New York for a corporation which had executed bonds secured by mortgage of its lands in Texas, and the receiver authorized to issue receivers' certificates. By agreement between the assignee of the certifi- cates and the bondholders, the certificates were established as prior liens over the mortgage bonds. In an action to foreclose the mortgage it was held that the signing bondholders were necessary parties when the assignee of the certifi- cates intervened to claim his priority. Pool v. Farmers' Loan & Trust Co., 27 8. W. Rep. 744 (7 Civ. App. 334). 2 Davis v. Diamond. 1 App. C. C., 590, citing Floyd v. Borland, 33 T. 777. Clark v. Gregory, 87 T. 189 (27 S. W. Rep. 56). A purchaser from a mortgagor may recover the land mortgaged, in trespass to try title, against parties holding under a foreclosure sale to which he was not a party. Morrow v. Morgan, 48 T, ;: ' i. Hague v. Jackson, 71 T. 761 (12 S. W. Rep. 63). Bexar Bldg. & L. Ass'n v. Newman, 25 S. W. Rep. 46t 180.] PARTIES TO ACTIONS. L'" 1 While it is the general rule that a claimant of land under a dif- ferent title from tli;it under which the mortgagor held is not a proper party to a foreclosure suit, yet where it may be necessary, in order to render a sale available, to remove a cloud from the title, .illowable to join in the foreclosure suit the parties holding the adverse claim, and to obtain a decree condemning such title. Such proceeding is analogous to a suit in which a creditor seeks to have a fraudulent conveyance set aside in order that the property con- i may be sold at a fair price. In such suit the adverse claim- ant is a proper and necessary party. 1 ISO. Parties in actions to foreclose the vendor's lien. All parties having an interest in land on which the foreclosure of a vendor's lien is sought are necessary parties. 2 All persons having an interest in the subject-matter may join in the suit, although they may claim different interests. Two persons holding notes secured by vendor's lien on the same land may join in an action to recover the amount due upon their respective notes and to foreclose the lien.* In a suit on a vendor's lien note by an assignee of the note, not only must the payee who has expressly transferred the lien b& made a party, but the original maker is a necessary and proper party to a decree of foreclosure, and unless the judgment sets out a foreclosure as to him, his rights are not affected thereby. 4 The holder of purchase-money notes may properly make party a person who claims title to the land by virtue of a judgment against the vendor subsequent to the execution of the notes, to which the Looney v. Simpson, 87 T. 109 (26 S. W. Rep. 1065). In a suit by injunction to enjoin a Male about to be made under a deed of trust, the maker of the tru.-t deed, being directly interested in the subject-matter, should be made a party; the omission to make him a party, objection being made, will be cause for re- versal of a judgment rendered therein. Abrahams v. Vollbaum, 54 T. 226. A creditor took a deed of trust on land, with no notice, actual or constructive, of :i prior deed of the land. In foreclosing the lien, it was held, the original vendor having been adjudged a bankrupt, and having parted with all his inter- tin- first ili-t-1. was not a necessary party; but there should be a judicial ascer- tainment in such proceeding of the amount of debt unpaid for which the fore- closure is made, McKeen v. Sult'-nfu^s. 01 T. :VJ5. Where the mortgagor's entire interest in the mortgaged property had passed from him prior to his death, his administrator is not a niT.-ssury party to an action for foreclosure wherein no personal judgim-nt is sought. Puckett v. Reed, 3 Civ. App. 350 (22 S. W. Rep. 515). In an action for conversion by a seller of goods against a defendant claiming under a deed of trust from plaintiff's vendee, neither the insolvent maki-r of tln> deed of trust nor the benefit-in ri.-s under the deed of trust l-sjt such vendee. 2 When a vendor holding a mere equitable lien for purchase-money seeks to enforce his lien against the vendee, a Mibseijuent purchaser holding a deed for the land, and in posses- sion thereof, is a necessary party. But if neither the party in pos- n nor his vendor had more than a mere equity, and the party in possession was charged with notice by the recitals of the deed under which he claimed that the purchase-money notes had not been paid, he was not a noc-ary party to proceedings to foreclose. 3 "Where a trial amendment is filed \>y a plaintiff after a purchase by , a third party from his vendee of the land in controversy, setting up for the first time a vendor's lien, the rights of such purchaser will not be affected unless he be joined as a party. 4 1 Chapman v. Lacour, 2o T. 94. John Evans was the assignee of a vendor's lien note, : Bridges v. Rey- 11. . I Is in T. -J"l. Preston v. Breedlove, 45 T. 48; Burks v. Watson, 48 T. 107. 'Robinson v. Black. .Vi T. 215. Martin v. Ft. \V. Express Co., 2 U. C. 242. A creditor alleged in her petition that her debtor had fraudulently conveyed a tract of land to K. : that K. sold to H., retaining a vendor's lien; and prayed that the vendor's lien retaint-'l \>y K. be foreclosed for her benefit. Before this remedy was sought, H. conveyed to W., who was a purchaser for value without notice, and it was held that where neither party has the legal title, the purchaser from the vendee is a nec- OOOQTJ party to a suit to foreclose a lien for the purchase-money: that W. could not be affected by a judgment in favor of the creditor unl-> -lu- was made a party to the suit Wort ham v. Boyd, 66 T. 401 (1 S. W. Rep. 109). K., holding a joint note given in part payment for a tract of land, which note had been fully paid, and also a valid claim for $160 secured by a vendor's lien 204 PARTIES TO ACTIONS. [ 181. The subvendee of a vendee who owes the purchase-money on land he conveys is not a necessary party to foreclosure proceedings. A subvendee not made a party to proceedings to enforce a vendor's claim for money by a sale of the land has the right to pay for the land and thus obtain title to it; and he will be protected whether relief be sought in a suit against a purchaser at the sale to enforce the right of redemption, or to establish the right to pay for and to have the land, or be set up by him in an action by the purchaser to recover the land. The equities of a subvendee not made a party to the proceedings are as strong against a purchaser at such sale y having knowledge of his rights, as they are between the original vendor and vendee. 1 181. Laborers' and mechanics' liens. In a suit to enforce a lien against a railroad in favor of mechan- ics, laborers or operatives, the plaintiff is not required to make other on one-half of the same land, executed by L., a subsequent purchaser of such half, wrongfully brought suit on the note against the makers thereof, and under a judgment of foreclosure had therein the entire tract was sold to A., to whom K. then transferred the lien given by L. As L. was not a party to the foreclos- ure suit, and the lie given by him was not adjudicated therein, it was held that A. was not precluded from asserting such lien against the part of the land cov- ered by it. At the time L. bought one-half the land and executed the lien that was transferred to K., and then to A., he executed in addition a separate note for $85, also carrying a vendor's lien on the one-half purchased. This note was sold to J., who brought suit thereon, but without making K. or A. parties thereto, and himself bought the land under foreclosure of his lien. It was held that the vendor's liens emanating from L. were of equal dignity, and that J.'s rights under his judgment and purchase were not superior to those of L. as holder of the lien transferred to him; both J. and A. being entitled to share the proceeds of a sale of the land in proportion to their claims under L. Jackson v. Andrews, 3 Civ. App. 503 (22 S. W. Rep. 1045). 'Pierce v. Moreman, 84 T. 596 (20 S. W. Rep. 821); Ufford v. Wells, 52 T. 612; Robinson v. Kampmann, 5 Civ. App. 605 (24 S. W. Rep. 529). A lot was con- veyed in 1854 by a city, with a vendor's lien retained to secure unpaid purchase- money. The lot was sold by the city in 1875 under a foreclosure of the lien. An heir of a subvendee under the first vendee (neither he nor his ancestor being a party to the foreclosure) brought his suit, four years after his majority, against the executrix of the purchaser at the foreclosure. He was held not guilty of laches in bringing his suit, and could redeem his interest in the lot by paying his share of the purchase-money at the foreclosure, with interest. Robinson v. Kainj.-iiann, 5 Civ. App. 605 (24 S. W. Rep. 529). Where a vendee of land, which is subject to a vendor's lien, sells a part of it to a third person, and the latter subsequently accepts a warranty deed to a part of his purchase from another who claims to be the owner, such third person is a necessary party to a suit to foreclose the original vendor's lien. Faubion v. Rogers, 66 T. 472 (1 S. W. Rep. 166). P., a subvendee of land subject to the vendor's lien, brought suit against pur- chasers of the land under foreclosure proceedings in which he was not made a party, although his deed was on record and he in possession. Suit was brought promptly and tender made of the amount of the foreclosure sale, with offer to pay further as the court should .ad judge. It was held that the plaintiff had the right to redeem the land and was entitled to a decree in his favor. Pierce v. Moreman, 84 T. 596 ('20 S. W. Rep. 821). 181.] P AIM IK* TO ACTIo.N-. lien-holders defendants, hut they may interveneaml become parties to the suit and have their respective rights adjusted and determined by the court. 1 In an action by an assignee of due-bills issued by a subcontractor to laborers in constructing a railway, the action being to recover the amount due and to enforce the lien, the contractor and subcon- tractor are necessary parties. 2 But where the action is not brought under the statute, but only to recover a sum paid out by plaintitTs at the request of the railroad company to take up time-checks issued by a contractor, the action will lie against the company without joining the contractor.' The statute giving a lien to laborers, etc., on railroads creates such privity between them and the company as entitles them to maintain an action directly against the company to enforce the lien. 4 A mechanic's lien against community property may be enforced against the husband's interest without joining the wife's heirs. 5 It seems that where a mortgagee of the property is not joined, he may restrain a sale of the property in a suit alleging that the judgment is excessive through collusion. 6 The statute makes it the duty of contractors to defend any action to enforce a lien, at their own ex- pense. 7 Prior to this amendment, the owner was required to fur- nish the contractor with a copy of the contract account, and the contractor was then required to give notice within ten days of his intention to dispute the claim. It was held under this statute that the contractor was a necessary party, except in cases where he tailed to give the notice of contest within the time prescribed. 8 It is recommended that a subcontractor, in suing the owner to enforce the lien, make his employer a party. It is suggested, also, that it miirht be necessary to make other lien-holders parties, in order to adjust their priorities and to settle their validity. 9 In a suit to recover a personal judgment for the construction of a house, and to enforce the builder's lien on the interest of the party i R. S. 3313. - Austin & N. W. Ry. Co. v. Rucker, 59 T. 587; G., H. & S. A. Ry. Co. v. Mo- 06, -> App. C. C., S 7a War,- v. <;.. II. A- S. A. Ry. Co., 2 App. C. C., 740. n*tin A: N. \V. Ry. Co. v. Daniels, 62 T. 70. 5 Pool v. Wedemeyer, 56 T. 287. Where two persons owned separate parts of a l>t iii severally, and entered into a joint contract with a builder to build :i house upon the lot, and a material-man having fixed a lien upon the lot brought suit against the owners jointly, and afterwards, by supplemental petition, al- iped a s.-tt 1 m- nt with one of them, it was held that he might dismiss a- to that one, and enforce his lien against the other. C. B. Carter Lumber Co. v. Simp--,,. 83 T. 370 (18 S. W. K.-p. M'J>. Whiteselle v. Texas Loan Agency, 27 a W. Rep. 309. 7 R. a 8808. "Thomas v. Ownby, 1 App. C. C., 1212. * Waldortl v. Scott, 46 T. 1. 206 PARTIES TO ACTIONS. [ 182. in the land for whom it was constructed, it is proper to join as a defendant in the same suit any other party claiming an interest in the land, so as to adjust in one action the liens and equities of all parties. In such an action no judgment can be rendered enforcing a lien against parties defendant claiming an interest in the land, who were not parties to the building contract, and on whom no copy of the bill of particulars was served. 1 Where suit is brought for the possession of real property, on which one party claims a builder's lien and another party claims a lien for material furnished, the claims being denied by plaintiff, who is the owner of the prop- erty, both lien claimants may be joined as defendants ; nor is it im- proper to seek in the same action a recovery on a moneyed demand connected with and growing out of the same transaction. 2 182. Subsequent purchasers. In a suit to foreclose a mortgage a subsequent purchaser is a nec- essary party. 8 In a suit by the vendor against the vendee and a subsequent purchaser for the purchase-money and to enforce the vendor's lien, subsequent incumbrancers are not necessary parties. They may make themselves parties, and are not bound by the judg- ment if not parties. 4 Though subsequent purchaser is a proper party in all suits to enforce a prior lien, yet he may not be a necessary party except to bar his equity of redemption. If the superior title remains in the plaintiff in a suit to foreclose, and the title of the subsequent purchaser is subordinate thereto, the mere fact that he was not made a party to the enforcement of the lien for the pur- chase-money, against the original vendees, although it might oper- ate to prevent any prejudice to his right to the equity of redemp- tion, yet could not prejudice the superior title of the plaintiff. If plaintiff's title was superior before the judgment of foreclosure and the sale thereunder to himself, this would not make it less so. The cases in which a subsequent purchaser or incumbrancer, if known, has been held to be a necessary party to a suit to foreclose a prior lien in order to affect his title, are those in which he held under the superior legal title, subject only to a claim for a lien to be enforced, as in cases of strictly vendors' liens arising by implication upon an absolute deed for land, or mortgages given to secure a debt other than for the purchase-money. 5 A subsequent vendee in possession is not a necessary party to a suit to foreclose an express lien reserved in a deed to his vendor, i Adams v. Cook, 55 T. 161. 8 Jones v. Ford, 60 T. 127. 'Hall v. Hall, 11 T. 526; Buchannan v. Monroe, 22 T. 542. * Chapman v. Lacour, 25 T. 94. Ufford v. Wells, 52 T. 612. 183.] PAKTIES TO ACT1 and the purchaser at sheriffs sale under the judgment of foreclos- ure, though a third party, may maintain trespass to try title against such subsequent vendee in possession, who was not a party to the suit to foreclose. 1 Under the law of this state execution does not issue upon a judg- ment against an administrator, but it is certified to the county court for observance. The issues concluded by the judgment can- not be reopened in the county court, its duties being those in rela- tion to classification and payment. Those proceedings are to be regarded as administrative, and a continuation of the original suit in which the judgment was rendered, so that purchasers after the institution of that suit are unnecessary and improper parties. 2 In a suit to cancel a deed, brought by the vendor, a subsequent purchaser from the vendee is not a necessary though a proper party defendant.' The mortgagor's deed for the mortgaged land executed subsequent to the mortgage was duly recorded. After such record the grantee in the deed is a necessary party in foreclosure proceed- ings. A decree of sale in proceedings to which he was not a party does not affect his rights. The rule here stated, and the effect of the foreclosure decree, are distinguishable from cases for decree enforc- ing the vendor's lien. In these cases the purchaser at the sale may recover the land, unless the original purchase-money be paid, al- though the junior purchaser was not party to the foreclosure suit. 4 In a suit to correct a mistake in an instrument, and to foreclose the instrument as corrected, subsequent purchasers are nece- parties. 5 , g 183. Purchasers pendente lite. A purchaser of property, pending litigation in reference thereto, is bound by the judgment rendered in the suit the same as if he hail been a party to the suit. 6 A purchaser of land lite can make no defense which his vendor could not interpose. 7 All judgments are to be considered in the light of laws providing a remedy and a time within which they may be revrr''. 8 One who 1 Foster v. Powers, 64 T. 247. * Paxton v. Meyer. 67 T. 96 (2 S. W. Rep. 817}. 'Silberberg v. Pearson, 75 T. 387 (12 S. W. Rep. 850). Bradford v. Knowles, 86 T. 505 (24 s. \V. i;,.,,. 1095; 25 S. W. Rep. 1117X Clark v. Gregory. 87 T. 189 (27 S. W. Rep. 56). Willis v. Ferguson. 59 T. 172; Flanagan v. Pearson, 61 T. SO', 1 : Wnrtham v. Boyd, 66 T. 401 (1 S. W. Rep. 109); Dwyer v. Rippetoe, 7'2 T. 520 (10 S. W. Rep. 668). 7 Evans v. Welborn. 74 T. 530 (12 a W. Rep. 230). 8 Harle v. Langdon, 60 T. 555. 208 PARTIES TO ACTIONS. [ 183. luiys from a party during the pendency of a suit involving title to land, or who buys between the time a final judgment is rendered therein and the' time an appeal or Avrit of error is perfected, or pending cither, is a purchaser pendente lite, and a judgment ulti- mately rendered will not only affect him with notice of the adverse claim,' but will bind him as it will a party to the record, and through process under that judgment he may b,e evicted. If, however, the judgment be rendered in favor of the vendor of one who purchases ' r , l^l. nt, r,i, , then, while such purchaser will be charged with notice of t he adverse party's right, yet he will not be bound by a judgment rendered in any subsequent suit on the same cause of action, unless he is made a party thereto; and this, though the real origin of his right may be subsequent in point of time to the date of the judg- ment thus rendered. 1 One who purchases land pending a suit in which the title to the land, or a lien upon it, is involved, does so subject to the final judg- ment in the cause, whether he be made a party to the suit or not. But his title is not affected unless the suit terminates adversely to his vendor. If dismissed or abandoned, no subsequent suit founded upon the same cause of action, much less one seeking a different remedy for different reasons against the same land, can interfere with the purchaser's title, unless he be made a party thereto. The abandonment of one cause of action and the adoption of a new one, by amendment, is, in effect, the dismissal of the former suit and the commencement of a new one, and all parties interested, not already before the court, must be served in order to be bound by the newly- sought decree. All defenses accruing down to the date of the amendment may be pleaded in bar of the action,- It has been held that a plaintiff cannot set up a new equity so as to affect a purchaser who bought previous to the filing of the amendment in which it is asserted, though the prayer for relief be not changed. Much less will the amendment affect such a purchaser if the equity be differ- ent and contradictory of the original bill, and the relief be of a dif- ferent character. 2 1 Randall v. Snyder, 64 T. 350; Moore v. Moore, 67 T. 293 (3 S. W. Rep. 284). - Wortham v. Boyd, 66 T. 401 (1 S. W. Rep. 109); 2 Pom. Eq., 634; Stone v. Connelly, 1 Met. (Ky.) 654 A purchaser of property covered by an attachment lien created by a suit in which he was not a party, who bought before the levy of the attachment, is not defeated by a sale under a judgment foreclosing that lit-n. But .. purchaser after the levy of an attachment is a purchaser pendente lite; and in case the attachment lien be foreclosed by a judgment against an administrator which is certified to the county court for observance, a sale under an order based upon that judgment and granted upon an application to which li- was not a party will conclude his right, Paxton v. Meyer, 67 T. 96 (2 S. W. Rep. 817). "While a purchaser pendente lite is bound by the judgment rendered in the cause in reference to the property in litigation which is purchased by him, his rights are not affected by proceedings seeking only a moneyed judg- 183.] PARTIES TO ACTI' A purchaser fn>m a defendant after suit may pn.perly make him- self a party defendant in an action of trespass to try title. 1 A pur- chaser of land after his vendor had prepared a petition in a suit to recover it, but before the filing of the petition, is not a purchaser pendent'- ///. :)51 ,l'.i S. V, : gQ s. \V. R?p. 950). 212 PARTIES TO ACTIONS. [ 185. such action could have been taken by the assignor of the note who intervened in the suit. 1 An action brought for partition abates as such on the dismissal of the suit as to one defendant whose tenancy in common is admit- ted by the petition. 2 It is held that if all are not made parties, the decree is not binding even on those before the court. If, in the course of the trial, it becomes apparent that there are necessary par- ties not before the court, the case should be stopped and the parties brought in before rendering a decree. A decree of partition is not binding on the parties to it unless they represent the whole of the estate. 3 If the bill shows the existence of parties who have not been joined, it will be dismissed on demurrer. 4 Want of parties cannot be cured by failure to take action upon it in the trial. 5 It is held, however, that so long as the pleadings fail to show in a suit for partition that there are persons interested in the title that is the subject of the suit who are not parties, the proceedings may be prosecuted to a final decree. 6 Though all who have an interest should be made parties, it is not necessary that the petition should aver the extent of each defend- ant's interest ; it is sufficient to allege that they are co-tenants of the whole tract of land, leaving it for the defendants to show their respective interests, if they desire partition among themselves. 7 But it is held that the bill should set out the title of the defendants as well as of the plaintiffs, and that it must appear that the parties to the suit are, among them, entitled to the whole estate. 8 It is held that a recital in the proceedings and decree of the pro- bate court, that all the heirs were present or represented, and con- senting thereto, must be taken as true until the contrary is shown ; and if one who was not a party accept the portion allotted to him, and afterwards convey it by deed, referring to the partition as his 1 Davis v. Loessin,26 S. W. Rep. 293. 2 McKinney v. Moore, 73 T. 470 (11 S. W. Rep. 473). 'Franks v. Hancock, 1 U. C. 554; De La Vega v. League, 64 T. 205; Ship Chan- nel Co. v. Bruly, 45 T. 6. , De La Vega v. League, 64 T. 205; Buffalo Bayou Ship Channel Co. v. Bruly, 45 T. 6. *Holloway v. Mcllhenny Co., 77 T. 657 (14 S. W. Rep. 240). 6 Noble v. Meyers, 76 T. 2SO (13 S. W. Rep. 229). It is said in this case that if there be a superior title outstanding in persons not made parties, or if there be persons interested in the title adjudicated who have not been made parties, their title would remain unprejudiced, and the decree rendered would not be binding upon or of any effect as to them. The effect of the decree as to those who are joined in such case is not stated. And see Cryer v. Andrews, 11 T. 170; Scoby v. Sweatt, 28 T. 713. 7 Glasscock v. Hughes, 55 T. 461. a Buffalo Bayou Ship Channel Co. v. Bruly, 45 T. 6. 1' AIM-IKS TO ACTIONS. 213 source of title, he will be concluded as respects the property em- lu-a.-i-d in the partition. 1 186. Joint trespassers. In case of a joint trespass the party injured may sue one or all of tin- tiv>|>a>M'rs, and each one will be liable for the whole of the damages; but a satisfaction made by one of them will discharge all.- The injured party may bring several actions and obtain several judgments, but he can have but one satisfaction. 1 "Where the tres- rs are sued jointly, the judgment must be against each and all for the full amount of the recovery; separate judgments cannot be filtered against each for a part of the damages. 4 While two wrong-doers may be sued jointly and a recovery had ist both if both are guilty, or, if one only shall be found guilty, against that one, such suit may be brought against one only of the wrong-doers, and upon proof that the one sued was guilty of con- tributing to the injury, recovery may be had against that one for the injury caused by him and the contributing act of the other wrong- . as if the whole was caused by the party sued. The only dif- ference in the result between suing two as wrong-doers jointly and Iccting to sue one only will arise when one is found not to have contributed at all to the injury, in which case, if by mistake the in- nocent party has been sued, there can be no recovery, whereas if both had been joined a recovery could have been had against the one proved to be guilty. 5 All persons who contribute to the corn- on of a tort through which injury results are responsible as principals, and such persons as induce a wrongful levy to be made by giving to the officer an indemnity bond may be treated as tres- passers. 6 1 Millican v. Millioan, 24 T. 426. Purchasers under co-tenants must be join* .-!. AnioM v. Cauble, 49 T. 527. A suit by the widow for her distributive share of MIT deceased husband's estate cannot be maintained without making his chil- ;f any, parties. Newland v. Holland, 45 T. 389. Persons in possession of a portion of the premises by purchase from one of the co-tenants must be I'urk.-tt v. McDaniel, 8 Civ. App. 630 (28 S. W. Rep, 360); Curtis v. Cock- r.-ll. ->S. \V. 1 :.-!-. : One tenant in common sold a part of the land by metes and bounds. Tlio utlu-r tenants in common, in a suit for partition against their co-tenant, ratiti- <[ the sale made by him, and it was held that 1. s were not necessary par- ties. N. Y. & Tex. L. Co. v. Hyland, 8 Civ. App. 601. Miiinnham v. Coyle, 2 App. C. C., 424; Markliam v. Navigation Co,, 73 T. 11 S. \V. K.-p. 131). 1 McGehee v. Shafer, 15 T. 198. Thompson v. Albright. 4 App. C. C., 21. : kham v. Navigation Co.. 7:5 T. 217 < 1 1 S. \V. Rep. 131). "Calx-ll v. sin* Co., 81 T. 104(168. W. Rep. sin. Where on.- N MU-.I f,,r.laiu- r injuries alleged to have been intlicte-l by his .servant or employee, the is not a necessary party. Wilkins v. Ferrell, 30 S. W, Rep. 450. 214 PARTIES TO ACTIONS. [ 187. 187. Trespass on land; who may sue. Possession is sufficient title to maintain action against a tres- passer. This is still the rule, although the plaintiff in setting out his title-, alleged one imperfect as under the sovereignty of the soil. There being no dispute as to plaintiffs possession, it was not error in the charge to assume title to be in the plaintiff. 1 Proof of actual, exclusive possession by the plaintiff is sufficient, even though it be bv \vrong. 2 One acquiring the possession subsequent to the trespass cannot sue.* The doctrine that possession alone is sufficient to main- tain the suit is founded on the fact that possession isprima facie evidence of title. If the title be in another, the possessor cannot recover beyond the damage to his possessory Lite rest. He cannot recover for damage to the freehold. 4 The right of action for a trespass upon leased premises is in the lessee. 9 Where there is no one in actual possession of the land, the right of action is presumed to be in the holder of the legal title in preference to a mere tonant at sufferance. The latter, in case of destruction of grass by fire, could only recover the damage suffered by being deprived of the use of the grass for the time he expected to use it for pasture. He could not recover for injury to the turf. 6 In a suit brought against a railway company, by a tenant, for damage to growing crops, it is not necessary for the landlord to be joined in the suit, 7 especially where he has no interest in the crops until his share is set apart to him under the rental contract, 8 or where there is no injury to the freehold. 9 A 'tenant may maintain an action for injuries resulting from a nuisance, which caused sick- ness in his family. 10 Joint owners of a damaged crop should join in a suit. 11 For an injury to land which is the separate property of the wife, she may join in a suit by the husband; but where the action 1 G., C. & S. F. Ry. Co. v. Cusenberry, 5 Civ. App. 114 (23 S. W. Rep. 851). 2 Linard v. Crossland, 10 T. 4"/>. 'Cent R. Co. v. Merkel. 32 T. 7J]. I. & G. N. Ry. Co. v. Ragsdale. 67 T. 24 (2 S. W. Rep. 515). Action for unlaw- fully tearing down and removing a house. Plaintiffs claimed under a deed, but proof of its contents was excluded because its loss was not sufficiently proved. They proved exclusive and peaceable possession for some time prior to the trespass, and at the time of the trespass the house was not occupied, but was in the hands of an agent to be rented. This was held a sufficient proof of title or ownership to maintain the action. Holman v. Herscher, 16 S. W. Rep. 984. 6 Reynolds v. Williams, 1 T. 311. 'Tex. & Pac. Ry. Co. v. Torrey, 4 App. C. C., 256. x. & Pac. Ry. Co. v. Bayliss, 62 T. 570. St. L., A. & T. Ry. Co. v. Heard, 3 App. C. C., 397. 9 G., C. & S. F. Ry. Co. v. Smith, 3 Civ. App. 483 (23 S. W. Rep. 89). Lockett v. Ft. W. & R. G. Ry. Co., 78 T. 211 (14 S. W. Rep. 564). 11 H. & T. C. Ry. Co. v. Hollingsworth, 2 App. C. C., 173; Tex. & Pac. Ry. Co. v. Gill, id., 176. PARTIES TO ACTIONS. is to recover damages for injuries to the crops and to the feelings of the husband, >he should not be joined. The right of action is in the husband alone. 1 A mere license to graze one's cattle upon the lands of another confers no such right in the lands as to entitle the owner of the cattle to recover damages for an injury done to the lands. 2 ? 188. Wrongful attachment.' In a suit for wrongful attachment the plaintiff in the attachment, the sheriff and his sureties may be joined as defendants. 3 The rule is that in suits for property converted and for damages proximately resulting from a breach of contract, it is proper to join all the par- is plaintiffs or defendants, who have so participated in the transaction as to render them interested in the determination of the suit. 4 In a proceeding against a sheriff and his sureties to recover money in his hands, the proceeds of property sold under attachment, in a proceeding to which the plaintiff was not a party, prosecuted on the ground that the plaintiff was a joint owner of the property sold, the defendant in attachment is a necessary party.* Where one party enters into an agreement with another, the performance of which entitles him to an interest in certain property, and is pro- ceeding to carry out the agreement, and the property is seized under writ of attachment, in a suit for wrongful seizure he is not only a proper but a necessary party to the suit, having secured a substan- tial and material interest in the subject-matter thereof. 6 One action may be brought by an assignee of a failing debtor against the sheriff for wrongfully levying three writs of attachment f\ T. i9a kett v. llinsdale. 2 U. C. 468. ' Thomas v. ( 'liapman. 62 T. 193. An attachment at suit of W. & Son was up :ni i>r>|>.Tty of the East and West Texas Lumber Company. Pending the proceeding II. was appointed receiver of the luinU-r company. The prop- erty was sold by tin- n -c.'ivcr under order of the court, and the net proceeds were iur of the court turned over to Williams and Minys. creditors of the com- pany, they first executing a bond to the receiver, obligating themselves "to pay such judgment as W.& Son mi^ht recover." with Rand M. sureties. This bond 216 PARTIES TO ACTIONS. [ 189, 190. g 189. Nuisance; injuries to land. All persons who co-operate to create and maintain a nuisance are jointly liable in damages. 1 It is a misjoincler for a father to join with himself his minor children in a suit for damages for injury to the health of his family, alleged to result from stagnant water near his dwelling caused by an embankment. The fact that the plaint- iff is a tenant is not an objection to his maintaining the action. 2 1GO. Injuries resulting in death. In cases arising under the provisions of the statute relating to in- juries resulting in death, the parties entitled to sue may bring their suit for damages as provided in said statute. 3 The action is for the sole and exclusive benefit of the surviving hiuband, wife, children and parents of the person whose death shall have been caused, and the amount recovered fs not liable for the debts of the was approved by the judge. Neither Williams and Mings nor their sureties were made parties, nor did they appear. It was held that a judgment rendered upon a trial of the attachment suit against the lumber company and H., the re- ceiver, against the obligors on the bond was without jurisdiction, and as to them the case was reversed. Williams v. Warren, 82 T. 319 (18 S. W. Rep. 560). Suit on a note and attachment of goods. Judgment for interveners, and plaintiff appeals without giving a supersedeas bond, and pending the appeal the amount in controversy is paid over to the interveners. Judgment reversed, and plaint- iff amended, alleging that interveners had received the fund by virtue of the judgment which had been reversed, and prayed a judgment against them for its recovery. Interveners also amended. Plaintiff moved to strike out the amended pleas upon the ground that it appeared therefrom that one G. had also sued out an attachment on the same goods, and that, therefore, he was a neces- sary party. It not appearing from the pleadings excepted to that G. had ob- tained a lien upon the fund, the exception was properly overruled. Freiberg v. Freiberg. 19 S. W. Rep. 791. i Comminge v. Stevenson, 76 T. 642 (13 S. W. Rep. 556). 'Lockett v. Ft. W. & Rio G. Ry. Co., 78 T. 211 (14 S. W. Rep. 564). Suit was brought by Meddlegge against the Mexican National Construction Company for damages caused by defendant making excavations which became a nuisance upon its lands lying between the land of plaintiff and the gulf. The removal of the sand also exposed the premises to floods from the gulf when tides were high. Suit was filed May 17, 1886. September 12. 1888, plaintiff by supple- mental petition alleged that on February 29, 1888, defendant sold the railway of the defendant to the Galveston & Western Railway Company, and that the two made some kind of arrangement together for the use of the land upon which the alleged nuisance was made, and that subsequent to the purchase the two companies had continued the nuisance; making the Galveston & Western Railway Company a party defendant. Exceptions were urged to the supple- mental petition on the ground of misjoinder. On final trial plaintiff recovered $1,000 damages against the original defendant, and $500 damages against the Galveston & Western Railway Company. It was held that the exceptions were well taken for misjoinder of parties and of causes of action. The allegation that the (ialveston & Western Railway Company had ratified the acts of its vendor did not make it liable upon the original suit. Mex. Nat. Construction Co. v. Meddlegge, 75 T, 634 (13 a W. Rep. 357). 3R.8.1199. 190.] PARTIES TO ACTIONS. 1' 1 7 led. The action may be brought by all the parties entitled, or by any one or more of them for the benefit of all. If the parties entitled fail to sue within three calendar months after the death occurs, it is made the duty of the executor or administrator of the ised to commence and prosecute the action, unless requested by all of the parties entitled not to prosecute the same. If the plaintilF to the suit die pending the suit, other parties, if any, may come in and prosecute, and if the defendant die, his executor or ad- min istra tor may be made a party. 1 When the evidence develops the fact that the deceased had other relatives who under the statute can share in the damages recovered for his death, the proceedings must be arrested until the pleading* are so amended that the suit can be conducted for the use of all of the beneficiaries. It is no answer to an objection made for want of proper parties plaintiff, to reply that the claim of the unjoined beneficiaries is barred by the statute of limitations. A release by a necessary party plaintiff who is not joined cannot be established !y ex parte affidavits produced in answer to a motion for new trial. Such proof should be made during the progress of the trial, under the rules governing the introduction of other evidence, and subject to cross-examination. 3 The statute intends that but one suit be brought for a malicious killing. But it is held that want of proper parties plaintiff must be met by objection for such non-joinder. A mother has been permitted to sue for herself and for the benefit of her husband, in a case of the killing of a minor son. 4 Where minor children sued, it was held that the objection that the petition did not allege that there were no surviving parents or widow could not be made available under a general exception, 5 Where the father of deceased lived in another state, and it did not appear that he suffered any actual damage, it was held that the widow and chil- dren could maintain the action without him. 8 In an action for tho killing of the husband and father, the widow may sue for herself and as next friend of the minor children. 7 The action will not lie for the benefit of the wife alone, where the petition shows that the mother survives, if the exception be made in time, if the mother's interests have not been adju- That the mother's claim is barred by limitation is no answer to the 1 R, S. 3021-3026. See g 324. post, Ft. W. & D. C. By. Co. v. Wilson, 83 T. 516 (23 S. W. Rep. 578); H. & T. C. lly. Mi>urv. 4'J T. :',!. 'Paschal v. Own, 77 T. -VIS (14 S. W. Rep. ,' 4 Mo. Pao. Ry. Co. v. Henry. 75 T. 220 (12 S. W. R-p. - Man-h v. Walker, i- T St. I*, A. & T. Ry. Co. v. Taylor, 5 Civ. App. 00$ <24 S. W. Rep. 973); Mo. Tac. Ry. Co. v. U.-nry. T:, T, 220 (12 S. W, Rep, 82S), 7 a & T, C, Ry, Co. v. Shaw, 3 U, C, 553. 21S PARTIES TO ACTIONS. [ 101, 192. exception. If she has settled her claim, that fact may be shown, and the judgment will stand. 1 The father and mother may join in a suit for the killing of a child. 2 Grandchildren are not included in the word " children." 2 Suit may be brought by the guardian of the estate of minor children, either in his name for his wards, or in the name of the wards by the guardian. He cannot compromise the rights of his wards. The fact that tlu> parties entitled do not sue within three months does not vest the rifht of action exclusively in the executor or administrator. 4 191. May appear in person or by attorney. Any ] >arty to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court. 5 g 192. Attorney for absent defendants. Where service of process has been made by publication, and no answer has been filed within the time prescribed by law, the court is directed to appoint an attorney to defend the suit, and judgment will be rendered as in other cases. In every such case a statement of the evidence, approved and signed by the judge, must be filed with the papers of the cause as part of the record thereof. 6 Unless these requirements are complied with the judgment will be reversed. 7 1 D. & W. Ry. Co. v. Spiker, 59 T. 435. The defendant cannot complain that an adult party waives his claim in favor of another party entitled to sue. Dallas R. T. Ry. Co. v. Elliott, 26 S. W. Rep. 455. The widow may compromise her right, but not that of her children. H. & T. C. Ry. Co. v. Bradley, 45 T. 171. It is held that if all the parties in interest are not before the court as actual plaintiffs, the suit should proceed in the name of one or more for the use of the others. G., H. & S. A. Ry. Co. v. Le Gierse, 51 T. 189; H. & T. C. Ry. Co. v. Moore, 49 T. 31. *Tex. & Pac. Ry. Co. v. Hall, 83 T. 675 (19 S. W. Rep. 121). Where an adult freedman was killed in Texas, his father, resident in Georgia, was permitted to sue. H. & T. C. Ry. Co. v. Baker, 57 T. 419. 'Dallas R. T. Ry. Co. v. Elliott, 7 Civ. App. 216 (26 S. W. Rep. 455). *H. & T. C. Ry. Co. v. Bradley, 45 T. 171; March v. Walker, 48 T. 372. s R. S. 1209. 6R. S. 1346. Article 1212 of the Revised Statutes of 1879 read as follows: "In all suits where the defendant is cited by publication, and no appearance is entered within the term allowed for pleading, the court shall appoint an at- torney to defend in behalf of such defendant, and shall allow such attorney a reasonable compensation for his services, to be taxed as part of the costs of the suit." This is omitted from the revision of 1895, evidently by mistake. The legislature in 1895 (Acts 1895, p. 80) amended article 1211 of the Revised Statutes of 1879, which provided for the appointment of a guardian ad litem for a minor defendant. In compiling the revision of 1895 the amended article 1211 is re- tained as article 1210, and is immediately followed by the amendment, which replaces the old article 1212, for the appointment of an attorney for an absent defendant, though the marginal note, "Attorney for absent defendants," is re- tained. See R. S. of 1895, arts. 1210, 1211. 7 Burns v. Batey, 1 App. C. C., 420; Hewitt v. Thomas, 46 T. 232. See Byrnes v. Sampson, 74 T. 79 (11 S. W. Rep. 1073), where the act of 1866 (P. D., 25, 54CO) is construed. '3, 194.] PARTIES TO ACTI I'll' X 193. Guardians ad litem. In all cases when a minor, lunatic, idiot or a non compos mentis may In- a defendant to a suit, and it shall be shown to the court that such minor, lunatic, idi >t or non compo* ///'in may be appointed for minors who are brought in as interveners.* Though a judgment against minor defendants without, the appointment of a guardian id. it is held that a due administration of justice would require its re- l on appeal. 6 And where a guardian ad lit- m. neglects to prose- cute an appeal from a judgment against minor defendants, they may prosecute a writ of error by next friend, if it does not appear from the record that the guardian objects to the writ being so prose- cuted. 7 194. Minor may sue by next friend. Any minor having a sufficient cause of action, and who has no legal guardian, can bring suit in any of the courts of this state by next friend, and such next friend shall have the same rights con- cerning such suit and the matter therein involved as if he were guardian of such minor. lie shall not be relieved from giving se- curity for cost, or affidavit in lieu thereof, and cannot collect the 'eds of any moneyed judgment he may recover, except as herein specified. Such in xt friend, or the attorney of record, of such minor may enter into such agreed judgment or compromise in such suit as the court may approve, and the decree entered upon such agreement or -, when approved by the court, will be forever binding to is'.ir,. p. 80; R & 1211. Amends article 1210, which should be omitt- ,]. See note to section 192, supra. 2 P. D. 1446; RS. 12in. * R S. 2623. And see, also, the provision as to puardians of the estates of per- sons of unsound mind and hnliitual drunkards. R S. I R. Sdn.nli.-ld v. Turner. 6 S. W. Rej. Ashe v. YOUHK. T. W. K.-|.. I " Carlton v. Miller. -> Civ. App. 619 (21 S. W. Rtp. 697). P.AKTIES TO ACTIONS. [ 195. on the minor. The decree may divest title out of the minor or vest it in him, when the court is satisfied such decree is for the best in- terest of the minor, under all the circumstances ; and the court may hear evidence touching upon such agreement or compromise before approving the same. Whenever in any suit pending in this state any minor recovers a personal judgment for money or other personal property in which the interest of the minor does not exceed the value of $500, and the minor has no guardian, such next friend or any person authorized by the court to do so, by an order entered of record, may take charge of said money or property for the benefit of the minor upon giving bond in such sum as shall be ordered by the court, which shall not be less than double the value of the property, conditioned that he will pay over said money and interest thereon and deliver said property and its increase to the minor when he becomes of age, or to his legally qualified guardian when demanded, and that he will pay or deliver the same to such person appointed by the court, when ordered by the court to do so, and that he will use such money or property for the benefit of the minor as ordered by the court. Such person who takes such money or property shall receive no fees or commissions for caring for or handling the same, but shall receive such compensation for caring for or handling the same as may be allowed by the court, and shall make such disposition thereof and at all times as the court may order; he may be required to return such money or property into court upon the order of the court, when the court may make such further disposition of the money or property as is deemed best for the minor. Whenever any attorney or other person has any interest in such recovery or judment the court may hear evidence as to such inter- est, and if deemed just shall order such claim, or such part as is deemed just, to be paid to such person who is entitled to receive the same. 1 Minors sued by next friend before the adoption of the above statute.' g 195. Additional parties. Before a case is called for trial additional parties may, when they are necessary or proper parties to the suit, be brought in by. proper process, either by the plaintiff or the defendant, upon such terms Acts 1893, p. 3; R. 8. 3498?t-3498#. ZJvey v. Harrell, 1 Civ. App, 226 (20 8. W. Rep. 775); Hays v. Hays, 66 T. 606 (1 S. W. Rep. 895); Chambers v. Ker, 6 Civ. App. 373 (24 S. W. Rep. 1118); G , C. & S. F. Ry. Co. v. Styron, 66 T. 421 (11 S, W, Rep. 661); Island City Savings Bank v. Wale*, 3 App. C. C., 244; St L, L M, S. Ry. Co. v. Jackson, 3 App. C. C., \Vygal v. Myers, 76 T. 598 (13 S, W, Rep. 567); Carlton v, Miller, 3 Civ. App. 619 (21 a W. Rep. 697), 195.] I>AI:TIK> TO ACTI. 221 as the court may prescribe; but such parties shall not be brought in at such a time or in such a manner as unreasonably to delay the trial of the case. 1 In quo u'nrranto proceedings, when it appears to the court or judge that the several rights of divers parties to the same office or franchise may properly be determined on one information, leave may be granted to join all such persons. 3 Application to make par- iidor the statute must be made before the case is called for trial. It is proper to refuse to allow parties to be made when the application is made by them after an application for continuance has been overruled. 8 If a demurrer is sustained for want of proper parties, the suit will not necessarily be dismissed ; the plaintiff may have leave to amend by bringing in the proper parties. 4 Where one is brought in against whom the defendant claims the right to a judgment in case judgment goes against him, the person so sought to be brought in may plead his privilege of being sued in the county of his domicile; 5 subject to such right, a person so liable may be brought in. 9 Bailee, agent, or tenant cannot interplead bailor, prin- cipal, or landlord. 7 In a suit by heirs to recover damages for injury to land the de- fendant may, by proper plea, have the father, in whom is vested a life estate to one-third of the property, made a party. Failing in this, he may by instruction limit the recovery to the interest of the minors. If the plaintiff be the father of the minors, and he alleges ownership in them, he is estopped from afterwards recovering dam- ages to his life estate, and a judgment for damages to the entire estate will not be disturbed. 8 One interested in the subject-matter of litigation may make himself a party, and assert his rights even after judgment, and move for a new trial. One thus interested, against whom no judg- ment is rendered, who after judgment appears and appeals in his own right from a judgment refusing his motion for a new trial, does not by such appeal affect the right of the successful party to enforce the collection of his judgment against property ordered to iR. 3.1208, JR.S.4344, Reagan v. Copeland, 78 T. 551 (14 a W. Rep. 1031); Pac. Express Co. v. Will- lams, 2 App. C. C., 8 810. * Mott v. Ruenbuhl, 1 App. C. G, 599. Holloway v. Blum, 60 T. 625; Blum v. P.oot, 2 App. C. C., g 98. V. Life Ins. Co, v. Rohrbough, 2 App. G C, 216; Kempner v. Wallis, 3 A pp. C. C., 584 Pac. Express Co. v. Williams, 2 App. C. C., 811; 2 Pom. Eq., g 1320 and note 2. Ft W. & N, a Ry, Co. v.lPearce, 75 T. 281 (12 a W. Rep. 8C4). 00-2 PARTIES TO ACTIONS. [ 196. be sold to satisfy the judgment rendered against a third party in the cause who did not appeal. 1 In a suit by an insolvent vendor against the vendee to enforce pavment of purchase-money for land, the vendee has, as against his vendor, the right in equity to have the claimants of an outstanding irrant, who assert title, called in, and have the question settled, be- fore he can be evicted or required to pay the balance of the pur- chase-money. 2 While a defendant who is sued upon a note given for unpaid purchase-money for land may successfully defend by showing an outstanding title superior to that of his vendor, the owner of the outstanding title is not a necessary party, and should not be compelled to litigate his title in a suit involving issues which cannot affect him. 1 A sheriff, constable, or deputy of either, when sued for damages, may make the obligors in indemnifying bonds taken by him par- ties defendant, and the cause may be continued for the purpose of obtaining service on such parties. 4 8 196. Parties to condemnation proceedings. A mortgagee or beneficiary in a trust deed is a necessary party to a proceeding to condemn land for a public road; if he is not joined he may, when the debt matures, foreclose against the mort- gagor and the county. It seems that he may not, before the ma- turity of his claim, sue the county for impairment of the security. 5 The vendee in an executory contract for the sale of land, if not made a party to proceedings by a railway company, may sue the company for damages, notwithstanding he has made default in his payments. 6 1 Ferris v. Streeper, 59 T. 812; Streeper v. Ferris, 64 T. 12. ZEstell v. Cole, 52 T. 175. Fisher v. Abney, 69 T. 416 (9 S. W. Rep. 321). The filing of a paper in a cause, designated therein as an " amended petition," wherein one not before a party to the cause seeks to make himself a plaintiff in lieu of the original plaintiff, is an irregularity, though filed with leave of the court, and no judgment can be ren- dered thereon until after service thereof upon the defendant as in an original suit The fact that defendant has not been cited to appear and answer the peti- tion of such a party affords no ground for exception to the petition, though a plea to the jurisdiction of the person for want of service should be sustained. If, however, after attempting to except to such petition because there was no service thereof, the defendant answers in full to the merits, he will be regarded as having waived the irregularity of the proceeding. The rights of a party thus permitted to be made a party plaintiff are neither enlarged nor restricted by any proceedings had formerly between the original parties to the cause. Arm- strong v. Bean, 59 T. 492. In a suit for the recovery of money for work done on a contract between defendant and plaintiff, a defense setting up that the defend- ant had paid for the work to other parties, between whom and plaintiff no priv- ity of contract is alleged, does not entitle the defendant to have such other parties brought in as parties to the suit G., H. & S. A. Ry. Co. v. Gage, 63 T. 568. *Acts 1885, p. 90; R S. 1201. Aggs v. Shackelford Co., 85 T. 145 (19 S. W. Rep. 1085). Odell v. Railway Co., 4 Civ. App., C07 (22 S. W. Rep. 821). CHAPTER VIII. OBJECTIONS FOR DEFECT OF PARTIES. May be made by demurrer or plea. 198. Objections for want of parties plaintiff, how taken. 199. Objections for want of proper defendants, how taken. 200. Objections for want of proper parties, when made. 201. Objection for want of parties. how obviated. ?' 197. May be made by demurrer or plea. A defect of parties in a suit may be taken advantage of by the answer. Wherever the deficiency of parties appears on the face of the petition, the defect is a cause of special demurrer. 1 If the de- murrer for want of parties is allowed, the suit will not necessarily be dismissed, but the plaintiff may have leave to amend, by bring- ing in the proper parties, or dismissing as to those improperly joined. 2 If the defect of parties is not apparent upon the face of the petition, it may be brought before the court by plea, 1 which must aver the matter necessary to show it, and must be sworn to, unless the truth of the plea appears of record. 4 It is held that objections for misjoinder or non-joinder cannot be raised on general demurrer.* If the defect is not apparent from the pleadings of plaintiff, it can only be reached by plea in abate- ment; if it is apparent, it may be reached by exception. 8 It cannot be reached by a motion to dismiss after the evidence is introduced. 7 When the non-joinder of a joint obligor as defendant is, by the petition, alleged to be on account of the death of such obligor, and 1 Danl Ch. Pr. 312; Williams v. Bradbury, 9 T. 487; Shelby v. Burtis, 18 T. 644. 'Austin v. Jordan, 5 T. 136; Dean v. Duffield, 8 T. 235; Horton v. Wheeler, IT Cook v. Phillips, 18 T. 81; White v. Leavitt, 20 T. 703; Payne v. BentK-y. 21 T. 452; Shipman v. Allen, 29 T. 17; Bailey v. Trammell, 27 T. 317. Story's Eq. PL 286. R. a 1265; Keabadour v. Weir, 20 T. 254 "> McFadden v. Schill, 84 T. 77 (19 S. W. Rep. 868); Williams v. Bradbury. 9 T. >helby v. Burtis, 18 T. 644; Tex. & Pac, Ry. Co. v. Pollard. 2 App. C. C., : Detroit Electrical Works v. Riverside Ry. Co., 29 S. W. Rep. 412. O'Neal v. Lockhart, 2 U. C. 597; Parks v. Dial, 56 T. 261: Tex. & Pac. Ry. Co. v. Pollard. 2 App. C. C.. 481; Ezell v. Dodson, 60 T. 831; Hill v. Newman, 67 T. 265 (3 S \V. i: ].. -J71); Davis v. Willis, 1 App. C. C.. S 291: Hinchman v. Ri. 1 Aj.p. r. <'.. ; -JIM: Mott v. Ruenbuhl, 1 App. C. C., 599; Stresan v. FiJeli, 1 McGuire v. Glass, 4 App. C, C., 54. i>-24: OBJECTIONS FOR DEFECT OF PARTIES. [ 198. he is in fact living, the non-joinder cannot be taken advantage of hv the defendants who are sued, except by pleading in abatement the fact that ho is living. 1 It seems that the objection is available in arrest or on error, but the fact that the omitted party is living must appear otherwise than by the presumption of life which the law raises. 2 Where a surviving husband sued for damages to the community estate, the children not joining, a failure to tile a plea in abatement for defect of parties did not deprive defendant of the right to have plaintiff restricted to a recovery of damages to his own interest. 8 Where a defect of parties plaintiff is made apparent by the evi- dence, it may be taken advantage of on the trial, though not pleaded. 4 198. Objections for want of parties plaintiff, how taken. In actions on contracts the misjoinder or non-joinder of parties plaintiff may be taken advantage of on the trial, when the plea of general denial has been filed, as well as by demurrer when the ob- jection is apparent on the face of the petition, or by plea in abate- ment. 8 But in actions by persons suing in a representative capacity, as executors, the non-joinder of a co-executor can be taken advan- tage of only by a plea in abatement. 6 In actions for torts the ob- jection of misjoinder of a proper plaintiff can be taken by a plea in abatement only ; but the defendant may, under the general denial, 1 Davis v. Willis, 43'T. 154 2 Anderson v. Chandler, 18 T. 436. For a decision to the effect that a release of damages by parties who should have been joined as plaintiffs cannot be first shown in answer to a motion for a new trial, see Railway Co. v. Wilson, 85 T. 516 (22 S. W. Rep. 578); Ft, W. & D. C. Ry. Co. v. Wilson, 3 Civ. App. 583 (24 S. W. Rep. 686). Where A. and B. are joined as parties plaintiff, defendant cannot comulain because judgment was rendered in favor of A. alone. B. is also con- cluded by the judgment Mo. Pac, Ry. Co. v. Smith, 16 S. W. Rep. 803. After partition made of land, the various parties owning in severalty the sub- divisions sued as joint owners for the recovery of the original survey. To cure the misjoinder they filed an agreement made with the defendants, to the effect "that the plaintiffs are properly joined in the original petition; that the cause may proceed, and the rights of all the parties be determined in one suit, thus preventing multiplicity of litigation." Subsequently, purchasers pendente lite from the original defendants were, on motion, made sole defendants, and it was held: (1) The objection sought to be cured by the agreement did not go to the foundation of the action, but to the manner of bringing it. (2) It was binding on the parties to it. (3) It was binding on purchasers pen dente lite, who cannot ignore the agreements on file of those from whom they purchased. Punchard v. Delk, 55 T. 304. Rowland v. Murphy, 66 T. 534 (1 S, W. Rep. 658). ns be made co-plaintiffs, the objection, if it appear on the record, may he taken advantage of either by demurrer, in arrest of judgment, or by writ of error; or, if the objection does not ap- on the face of the pleadings, advantage of the misjoinder may be taken under the general denial. 2 199. Objections for want of proper defendants, how taken. In an action on contract, if a person be omitted as a defendant who ought to have been joined, the objection can only be taken ad- \ antage of by a plea in abatement, unless it appears from the plead- ing of the plaintiff that a person not made a defendant in the suit was a joint contractor with the defendant, and that such person is still living (as he must be presumed to be, unless the contrary is alleged), when such non-joinder is a good ground of demurrer, or motion in arrest of judgment, or may be assigned for error. 8 If, in an action upon a joint contract, too many persons be made defend- and the objection appear on the pleadings, either of the de- fendants may demur, move in arrest of judgment, or support a writ of error; and if the objection do not appear upon the pleadings, advantage may be taken of it under the general denial, as the plaint- iff, having sued upon a joint contract, cannot recover if he fail in proving a joint contract 4 . ?' 2OO. Objections for want of proper parties, when made. It is too late to set up the want of proper, but not necessary par- ty answer filed upon the eve of trial, and the cause will pro- ceed without them. 5 If the want of parties defendants, essential to the derision of the case, appears upon the hearing, and no d< can be properly rendered without having such parties before the court, the suit will be continued for the want of such p:r with leave to the plaintiff to bring them in by supplemental peti- tion, unless it appears they have been left out by the fraud or bad faith of the plaintiff, in which case the suit will be disini- And if, upon the hearing, there appears to be an improper joinder of defendants, the plaintiff can dismi>s as to the defendants improp- 1 Croft v. Rains, 10 T. 530; Watrous v. McGrew, 16 T. 506; May v. Slade, 24 T. 2 1 Chit PI. 66. uld's I'l. v.'7'J; 1 Saund. PL and Ev. 14. IChit. !M. H. irleson v. Burleson, l."> T. Peterson v. Poignard, 6 B. Mon. 570; Harder v. Harder. 2 Sand. Ch. 17; Hutch- inson v. Reed, 1 Hotf. rh. :!H5; Rowland v. Yarman, 1 J. J. Marsh. 76; 3 Bibb, 108; McClure v. Erwin, 3 Cow. 313. 15 226 OBJECTIONS FOE DE7EOT OF PABTIES. [ 201. erlv joined, and against whom no judgment can be rendered, and take judgment against the others. 1 The want of necessary parties to an action may be urged after judgment by default has been entered against those who have been made parties. 2 The objection comes too late when made for the first time in the appellate court, 3 unless the defendant has been in- jured by the want of necessary parties. 4 A misjoinder may be waived. 5 201. Objection for want of parties, how obviated. The defect of parties, set up by the answer, can be obviated by dismissing as to those improperly joined, or by an amendment add- ing new parties. 6 So new parties may be added by amendment or supplemental petition, where the plaintiff was not before aware of the necessity of such parties. But the plaintiff ought not to be al- lowed to amend by bringing in new parties, and thus delay the trial of the case, where he might, with the use of ordinary diligence,, have discovered the necessary parties, and where the objection for the want of parties proceeds from himself. 7 Neither will an amend- ment be allowed, making new parties, where it is apparent that the plaintiff is entitled to no relief under any circumstances. 8 1 Austin v. Jordan, 5 T. 130; Dean v. Duffield, 8 T. 235; Horton v. Wheeler, 17 T. 52; Cook v. Phillips, 18 T. 31; White v. Leavitt, 20 T. 703; Payne v. Bent- ley, 21 T. 452; Shipman v. Aller, 29 T. 17. Ebell v. Bursinger, 70 T. 120 (8 S. W. Rep. 77); Anderson v. Chandler, 18 T. 436. Caruth v. Grigsby, 57 T. 259; Hill v. Newman, 67 T. 265 (3 S. W. Rep. 271). 4 Sears v. Green, 1 U. C. 727; Hughes v. Roper, 42 T. 125; Herndon v. Bre- mond, 17 T. 434. McFadden v. Schill, 84 T. 77 (19 S. W. Rep. 368); Delk v. Punchard, 64 T. 360. 6 Austin v. Jordan, 5 T. 130; Dean v. Duffield, 8 T. 235; Horton v. Wheeler, 17 T. 52; Cook v. Phillips, 18 T. 31; White v. Leavitt, 20 T. 703; Payne v. Bentley, 21 T. 452; Shipman v. Aller, 29 T. 17. ^ 1 Dav. Ch. Pr. 336. Story 's Eq. PL 541; Russell v. Clark, 7 Cranch, 69, 90; 1 Dav. Ch. Pr. 336. CHAPTER IX. INTERVENTION OF THIRD PARTIES. 202. Intervener defined; who may in- tervene. 903. Defendant may require party in interest to intervene. 904. Notice of intervention; leave of court Right of plaintiff to dismiss. 206. Rights and duties of intervenes 207. Dismissal of intervention. 208. Owner of note may intervene in a suit brought by another. 209. Assignee of a chose in action pendente lite may intervene. 210. The owner of personal property may intervene in a suit re- specting it brought by another. 211. Rights of purchaser pendente lite, 212. In actions affecting title to prop- erty. 213. In trespass to try title; owner of land may intervene in a suit against his tenant 214. Rights of lienholders. -.'I- 1 }. Where property is seized under attachment, execution, etc, 216. Rights of attaching creditors. 202. Intervener defined; who may intervene. An intervener is one who, having an interest in the subject-mat- oluntarily, or at the instance of either party, is made a party to the suit, and may claim adversely to either, or to both. 1 Any one who is competent to sue or to.be sued may, by leave of the court, and upon notice to the parties, intervene in a suit between other parties, where he has an interest in the subject-matter of the suit which can be affected by the decree; and he may join the plaintiff in asking the relief claimed by him, or any relief appropri- ate to the suit; or he may join the defendant in resisting the plaint- iff's claim; or he may oppose the relief claimed by both parties. 2 The interest authorizing an intervention must be an interest in the object-matter of the original suit. Thus, where suit is brought on count, and an attachment is levied upon property, one holding the property as assignee for the benefit of creditors cannot inter- vene and claim the property. The property is not the subject- T of the suit. The remedy of the assignee is either by trial of the right of property, or suit against the sheriff for damages, or against the purchaser at sheriffs sale for the recovery of the prop- erty. 1 1 Williams v. Wright, 20 T. 499; Smalley v. Taylor, 33 T. 668; Graves v. Hall, 27 T. 14s : Mi-Xi-ill v. Lt-KK. 2 T. 428. GaiTett v. Gaines, 6 T. 435; 7 La. R (N. S.) 196; Pierre v. Massey, 7 Mart 1%: Mussina v. Goldthwaite, 84 T. 125; Jaffray v. Meyer, 1 App. C. C., '.: Smith v. Allen, 28 T. 498. Jaffray v. Meyer, 1 App. C. C., 1380; Meyberg v. Steagall, 51 T. 351; Pool v. 228 INTERVENTION OF THIRD PARTIES. [ 202. There is no statute in this state providing for the right of inter- vention, but it is said that the practice on the subject is probably derived through the ecclesiastical courts of England, and the modifi- cations of the civil law as found in the state of Louisiana, and rests ujMin the principle that a party should be permitted to do that voluntarily which, if known, a court of equity would require to be done. 1 Due regard should be had to the advantages of intervention in preventing a multiplicity of suits, and it is necessary, also, to guard against its disadvantages. It is a practice liable to abuse, has a tendency to multiply the issues, imposes frequently great additional labor and responsibility upon the trial judge properly to present the issues to the comprehension of the jury, and tends to confusion in the trial of causes. 2 The rule has been stated thus: "If any third person consider that his interest will be affected by a cause which is pending, he is not bound to leave the care of his interest to either of the litigants, but has a right to intervene or be made a party to the cause, and to take on himself the defense of his own rights, provided he cl6es not disturb the order of the proceedings." 3 In Louisiana, a state to which we may properly look for light on the question, it has been held 4 that to give the right the intervener should have with one of the original parties a union of interest in relation to the subject-matter of the suit, and that this interest Sanford. 52 T. 621; Noyes v. Brown, 75 T. 458 (3 S. W. Rep. 36); Stansell v. Flem- ing, 81 T. 294 (16 S. W. Rep. 1033); Hanna v. Drennan, 2 U. C. 536. Where the subject-matter of a suit is rent due, one claiming a mortgage lien on property on which the distress warrant is levied cannot intervene; his interest is not in the subject-matter. Fisher v. Bogarth, 2 App. C. C., 120. A. sued B. to recover a debt, and levied an attachment. C., a creditor of A., in order to reach the debt sued for, garnished B., and intervened in the suit of A. against B., alleging the insolvency of both A. and B. It was held that C. had no such interest in the subject-matter of the suit as gave him the right to inter- vene that the garnishment gave him no such right, by way of lien or other- wise. Noyes v. Brown, 75 T. 458 (3 S. W. Rep. 36). Partners by consent dissolved, P. taking the stock and assuming the firm debts. He made a note to the outgoing partner, S., for balance on the purchase. The sale was public. The change of the firm was made known to its creditors. The outgoing partner on maturity of his note brought suit against P. and at. tached property. F., a firm creditor, intervened and obtained judgment against both the parties, and decree for sale of the attached property. Objections to. the intervention of F. should have been sustained. He showed no interest in the subject of the litigation between the parties to the suit. Stansell v. Flem- ing, 81 T. 294 (16 S. W. Rep. 1033). Where suit is brought to recover the value of timber sold, a third person who claims the land has no right to intervene to recover the value of the timber. Mel- vin v. Chancy, 8 Civ. App. 252. 1 Whitman v. Willis, 51 T. 421; Pool v. Sanford, 52 T. 621. 2 Whitman v. Willis, 51 T. 421. 3 2 Chitty's Gen. Prac. 492, cited with approval in Pool v. Sanford, 52 T. 621. Brown v. Saul, 4 Mart. (N. S.) 434. 3.] INTi N i'F THIRD PASTIES. should 1).' fi.undrd >n some riL r lit, claim or lien, either conventional or le^al. directly and closely connected with this subject-matter. Thi- following statement by Pomeroy ' is approved: "Theinter- vener's interest must be such that, if the original action had never been commenced, and lie had first brought it as sole plaintiff, he would have been entitled to recover in his own name to the extent f a part of the relief sought; or if the action had first been brought against him as a defendant, he would have been able tode- :he recovery, in part at least. His interest may be either legal I u i table." 2 Where personal property has been sold with warranty of title, and the purchaser is sued for the property by a third party, the seller has the right to intervene and defend the suit.* 203. Defendant may require party in interest to intervene. Where the defendant in any suit upon any contract, or for the recovery of personal property, shows by his answer that a third claims the same thing by a different or separate interest, without collusion with him, or that he is ready to pay or dispose thereof, but does not know to whom of right it belongs, such third 1 Remedies and Remedial Rights, 430. 2 Pool v. Sanford, 52 T. 621; Del Rio Building & L. Ass'n v. King. 71 T. 729 (12 S. \V. Rep. 65). After the death of the wife the husband executed a deed of tru^t upon lands. In the deed the rights of the wife's children were exji i. In a suit by the holder of the claim to foreclose, the children of the wile were not entitled to intervene. The foreclosure would not affect their ri_'lits in the lands. The defendant in the suit could not complain of the re- fusal of the court to allow such intervention. Hinzie v. Kempner, 82 T. 617 (18 S. W. Rep. 659). This suit was brought by a prior incumbrancer to enjoin the sale, by the sheriff, of several tracts of land attached in a suit instituted by K. against W., which suit resulted in judgment for K. and a foreclosure of the attachment, and an order for the sale of the attached property. C. intervened in the pres- ent suit, alleging that he was surety for the debt upon which K. obtained his ?nt, and that the judgment provided that, in case it was not satisfied out of the property of W.. l.-\ y should be made upon the property of C. He was prop. -rly allowed to intervene. Ivory v. Kempner, 2 Civ. App. 474 (21 S. W. Rep. 1006). Where trust funds were loaned, and the borrower made an asM^-ntm-nt. and the rcsttii -runt ot'm-r creditors to intervene. Mills v. Swearingeu, 67 T. 209 (3 S. W. Rep. mil An administrator brought suit on a note, and to recover the sum of $*?00, which was the amount of a fee he alleged he hal promise. 1 to j>ay his attorney* in l> v. Smith. 40 T. 89. * Parker v. Nolan, 37 T. 85. Upon an application to appoint :\ trustee, any per- son claiming the alleged trust projMTty may intervene, resist the appointment, and appeal Bass v. Fontleroy, 11 T. 698. 230 INTERVENTION OF THIRD PARTIES. [ 204. person may be required to interplead at the next term of the court, and maintain or relinquish his claim against the defendant. The original defendant should show cause for the interpleader of a third purtv, at the earliest possible moment; and he will not be per- mitted to delay a case unnecessarily, or without good cause, for the purpose of bringing in such party. If, however, the intervener is a necessary party defendant, or if the court would have ordered him to be made defendant upon the suggestion of either party, or if he has been made defendant upon the application of the orig- inal defendant, or if he is the real owner of land, and his tenant, in possession, is sued, he is entitled to all the privileges peculiar to defendants. 1 8 204. Notice of intervention; leave of court.' The right to intervene in a suit is by leave of court and upon no- tice to the parties. 2 An intervention by leave of court, and setting out the facts relied upon, is sufficient without a formal interplead- ing. 3 As a general rule, an intervener must give notice to all the parties to the cause, because they are generally interested in what- ever claim he may set up. But a party having no interest need not be cited. 4 It is also held that parties properly before the court are required to take notice of a petition of intervention, filed by leave of court, and though at the time of such intervention and judgment for intervener one of the defendants against whom judgment was rendered was dead, and another temporarily insane, yet, the court having acquired jurisdiction over them, and they having appeared and answered, being represented by counsel, and no suggestion being made of record of the death or insanity, the judgment ren- dered was not a nullity, but was only voidable; 5 that every party who has appeared in court before the filing of a petition in inter- vention is charged with notice of the petition in the same manner and to the same extent as if he had been specially cited to an- swer it. 6 Williams v. Wright, 20 T. 499; Story's Eq. PI. 291-299; R. S. 5253; Pac. Ex- press Co. v. Williams, 2 App. C. C., g 810. 2 Williams v. Dennis, 1 App. C. C., 1233; Jaffray v. Meyer, 1 App. C. C., 1350; Smith v. Allen, 28 T. 497. 'Simpson v. Grinnan, 2 U. C. 136, citing Iglehart v. Moore, 21 T. 504; Taylor v. Gillean, 23 T. 517. 4 Peters Furniture Co. v. Dickey, 2 U. C. 237. 5 Fleming v. Seeligson, 57 T. 524. Deering v. Hunt, 2 S. W. Rep. 42. Where suit was brought for damages for destruction of crops, it was held that one jointly interested in the crops was a proper party plaintiff, but that he could not come in by intervention after the case had been appealed to the county court. G., C. & S. F. Ry. Co. v. Ford, 3 App. C. C., 147. One filing a plea of intervention is not considered a party to the cause if the plea is not called to the attention of the court or after an order striking it out Mills v. Paul, 30 S. W. Rep. 242. '3, 206,] INTERVENTION OF THIRD PARTIES. 231 105. Right of plaintiff to dismiss. It' a petition in intervention shows such interest in the subject- matter of the litigation between the parties as would entitle the in- tervener t<> maintain an independent action against the plaintiff or those represented by him. and to have the relief sought, in whole or in part, then the intervention would not be affected by a dismis- sal by the plaintiff of the action, and it would not be material whether the disposition of the case amounted technically to a non- suit or a discontinuance. If no such independent cause of action .own in the intervention, then no error would exist in the dis- 1 of the intervention upon the dismissal by the plaintiff. 1 If a petition by an intervener shows by its averments that he h;i~ interest in the subject-matter of litigation, and a cause of action airainst either the plaintiff or defendant, it is his privilege to prose- his suit to final judgment, and it is error in the court to dis- a his suit on nonsuit by the plaintiff. 2 After the parties to a pending suit have agreed upon a settle- ment of the matter in controversy, and that the suit shall be dis- '1. it is too late for a third party to intervene without leave of court, although no order of dismissal has been entered. 3 ? 206. Rights and duties of intervener. While the right to intervene in a proper case will not be denied. the intervener must assert his rights promptly. He will not be per- mitted to retard the principal suit; 4 neither can he except to mere to v. Farmers' L. & T. Co., 81 T. 530 (17 S. W. Rep. 60). inch v. Jones, 2 Civ. App. 550 (22 S. W. Rep. 245). This was a suit to re- cover certain lands. A third party intervened, answered the petition, and claimed an interest in a part of the lands. Both plaintiff and defendants an- 1 the petition of intervention, and afterwards the defendants withdrew tla-ir answers, and plaintiff took a nonsuit, and it was held that if the plea of intervention had shown an interest in the subject-matter of litigation it would have been error to permit the nonsuit It was held further, however, that tin- law gives the surveyor who locates certificates for another no interest in the located upon; that the petition disclosed no contract between the inter- as surveyor, and the defendants, by which the former was to have a por- tion of the land in controversy for his services; that therefore the intervener had no interest in the subject-matter of the suit, and it was not error to allow tli- plaintiff to take a nonsuit, and the defendants to withdraw their answers aii-l to dismiss the suit. 3 Lambie v. Wibert, 31 S. W. Rep. 225. In a suit brought by a creditor to sub- property, alleged to have been fraudulently conveyed, to the claims of him- ;iid the creditors of the estate, a compromise and agreement to dism:- -nit made between the original plaintiff and defendant, cannot affect the ri^ht of a creditor who has intervened by leave of the court to have his rights as a T. ditor adjudicated. An order dismissing the suit alter such intervention and dismissing the petition of intervention is error, for the original action could only have been maintained when brought for the benefit of all the v. Duk.-s. 58 T. 96. 4 Smith v. Allen, 2S T. 497; Smalley v. Taylor, 33 T. 668. Where suit was 232 INTERVENTION OF THIRD PARTIES. [ 206.. formal defects or irregularities, not going to the merits or founda- tion of the action. 1 He cannot change the nature of the suit, or ivtjuire the introduction of a new party. 2 When the original defendant has not filed an answer to the orig- inal petition, he must be cited to answer the petition of interven- menced in August, 1852, and a petition of intervention was filed in March, 1853, one day before the case was called for trial, and it did not appear to have beeu brought to the notice of the court or the plaintiff until after the cause was called for trial, and the omission to present it at an earlier day was not accounted for, the court refused to permit the party to intervene, and required the original parties to proceed to trial. Van Bibber v. Geer, 12 T. 15. In an original petition parties joined as plaintiffs as heirs and devisees of Paul Bremond, owner of all the stock of a railway company. At the time of the trial these parties by amended petition set up claim to one-half the railway, upon the alleged facts that Paul Bremond had used in the construction, etc., of the railway the com- munity property of himself and his deceased wife, through whom they claimed as her heirs; also attacking the alleged incorporation and its records as fictitious and in fraud of their rights as heirs of Mrs. Bremond. This amended petition introduced a new and distinct cause of action and was an abandonment of the first, and was calculated to protract the litigation. It was properly treated as an original plea in intervention filed on the eve of trial. The court's action in sustaining exceptions to it and dismissing it without prejudice approved. Mc- Ilhenny v. Binz, 80 T. 1 (13 S. W. Rep. 655). When the intervener filed his petition on the eighth day of the return term, and on the same day the case was called for trial, it was held that the court below erred in refusing to entertain the petition. Eccles v. Hill, 13 T. 65. J The rules in relation to the plea of intervention are not well settled. There is no doubt that a third party may intervene in a suit between others, for the protection of his own rights. But this cannot be permitted where it would re- tard the principal suit so as to operate injustice to others. Eccles v. Hill, 13 T. 65. It may well be questioned whether the intervener could be permitted to except to the proceedings for mere formal defects or irregularities not going to the foundation of the action, but he may interpose a general demurrer going to the merits of the action. Hanchett v. Gray, 7 T. 549; Smith v. Allen, 28 T. 497. J When, in the original petition for a mandamus, it was averred that a cer- tificate was the property of the husband, it was held that if he was not estopped by such averment, the wife certainly could not, by an intervention in which she was joined by her husband, change the character of the title to the property purchased, from community property to the separate estate of the wife, and thereby defeat a defense which would be good against the original action. Hol- loway v. Holloway, 30 T. 164. The Houston City Mills Manufacturing Company was incorporated in 1864, with a capital stock of 500,000. In 1868 shares had been taken in the capital stock to the amount of $75,000. On the 9th of June, 1868, there were issued by the company $100.000 in bonds, payable to G. G. or bearer; at the same time the company mortgaged its corporate property to G. G. as trustee for the holders of the bonds, to secure their payment. The com- pany failed to pay the interest on the bonds. G. G. filed his petition on the 23d of April, 1870. in which he claimed that the principal and interest of the bonds had become due, and sought to foreclose the mortgage iu favor of certain bond- holders. S. M. filed a plea of intervention, as the owner of six shares, of $500 each, in the capital stock of the company, alleging fraud in the corporate offi- cers, and collusion between the plaintiff and defendant. It was held that an intervener, claiming an interest in the subject-matter in dispute, may interpose his claim as a defendant to the suit, having been made such by leave of the 206.] IN II. N oK THIRD PARTIES. 23$ tion, as in an original suit. 1 An intervention, which in its conse- quences, if the intervener should prove successful, would result in oniuL r the determination of the cause as between the original parties, will not be allowed. Hence, one who claims a small undi- vided interest in the land involved in a suit, and also an in; besides in the survey of which it formed a part, not involved in the litigation, and in which the plaintiff claims no interest, should not be allowed to intervene. To allow it would result in complicating the case by producing new parties and causes of action. Since the judgment could not affect the rights of the intervener, he should 1 1 to an independent action. 3 One who intervenes in a cause must accept the case as to all pre- vious orders made and papers filed, including depositions as they appear at the time of intervening. He cannot object to depositions already taken on the ground that he had no opportunity to pro- pound cross-interrogatories. But it would seem that he would not be precluded from taking action in time to secure answers to cross- interrogatories propounded by him to a witness who had been ex- amined before his intervention.* Where, at the time the intervener gets leave and comes in, the whole interest in the property is in controversy in the suit, he may litigate his right to the entire property. 4 "Where he makes himself a party to secure his interest in property involved in litigation be- tween a plaintiff and defendant, in making defense of his own right, he can plead and prove anything which can or will be a defense to the plaintiff's case, so far as it might affect his own claim. He does not, however, become the protector of the defendant, nor can the de- fendant derive any aid in his own case beyond what may be brought into it supported by his own defense, as made in his answer. If the defendant's pleadings do not admit of evidence of payment or sat- isfaction of a note sued on, he cannot defend or receive the bene- fit of such defense made by the intervener, but the intervener' s riirhts cannot be injured by the defendant's conduct of his own de- fense. 4 court, the better to protect his interests: and if there be fraud and collusion be- tween the original parties, whereby his interests are compromised or prejudii !. he may set it up affirmatively and prove it, and thereby defeat any fraudulent . intended to be carried out by the suit Mussina v. Goldthwaite, 34 T. \~~>. 1 Bryan v. Lun.l. -J.'. T. 98. 'Ragland v. Wisnx -k. i T. 391. Raiubolt v. March. :-.' T Fleming v. S.-.-li^son, 57 T. 524 Brown v. Mitchell. 1 U. C. 37:5. It was held in this case that a plea by the int. rv.-ri.T that the deft-ndant had, "on Nc>v.Miil-r 1. l s ?l, fully accounted with tin- plaintiff, and settli-l ami fully discharged the note on winch plaintiff brings iit to the full N.-iti-J'a'-ti'in f plaintiff, ami any cause of action or right or lien that may ever ha \' .\i-t-.l Ktu.. n plaintiff ami defendant, by and under 234 .INTERVENTION OF THIRD PARTIES. [ 207. Interveners may occupy the positions of either plaintiffs or de- fendants, and all the elements of a cause of action or ground of defense may be contained in their pleading, and parties may como into court as effectually by that method as by original suit. 1 It seems that where there is no conflict of interest between a party and an intervener they may be represented by the same attorney. 2 S 207. Dismissal of intervention. On sustaining exceptions to an intervention the judgment should dismiss the bill without prejudice to the claim sought to be set up. 3 A petition of intervention, when improperly filed, may be dismissed on motion as well as upon demurrer. If the petition shows a cause of action on which the intervener may recover in any suit, but de- fectively stated, a demurrer affords the remedy to one adversely interested; but when the cause of action, though good, does not authorize an intervention in the particular suit, a motion to dismiss is proper. 4 An intervener against whom no affirmative relief is asked by the pleadings of the other parties to the cause occupies so much the position of a plaintiff that the only proper action to take with re- gard to him when he fails to appear is to dismiss his suit for want of prosecution. 5 An intervention allowed without authority of law by the trial court was dismissed on appeal without prejudice to the claim, burdened, however, with all costs incurred by reason of the intervention. 6 No exceptions being taken to the action of the court dismissing an intervention, and the bond for appeal being aid note," was sufficient to admit evidence of satisfaction, and sustaining ex- ceptions thereto was erroneous. i Ivey v. Harrell, 1 Civ. App. 226 (20 S. W. Rep. 775). It was held in this case that if by an intervention other land was improperly made a subject of contro- versy, the action of the court in allowing it might be irregular, but its jurisdic- tion would not be affected; but whether such a state of facts was shown as to make it proper to bring all the land in or not, the parties were before the court, seeking to litigate over a subject of which it had jurisdiction, and its judgment entertaining and determining their suit could not be collaterally attacked. While an iutervener is not bound by a statement of facts not signed by her counsel, or a judgment on writ of error regarded as passing on her rights, yet where she adopts the allegations of the plaintiff and prays for the same reme- dies, the judgment affects alike both plaintiff and intervener. Hudson v. Morris, 55 T. 596. An intervener is not, on appeal, entitled to a reversal of a judgment in favor of an original party to the suit, which could not operate to his injury, when the party against whom the judgment was rendered had neither appealed nor as- signed errors. Rainbolt v. March, 52 T. 246. 2Deering v. Hurt, 2 S. W. Rep. 42. Del Rio Building Ass'n v. King, 71 T. 729 (12 S. W. Rep. 65). Ragland v. "Wisrock, 61 T. 391. 'Noble v. Meyers, 76 T. 280 (13 S. W. Rep. 229). ostansell v. Fleming, 81 T. 294 (16 S. W. Rep. 1033). 208,209.] I.NTKUVKMIt'.V OF THIRD PARTIES. 235 executed by defendant alone, and made payable to plaintiff alone, the interveners were not parties to the appeal, and assignment of errors by them would not be considered. 1 i 208. Owner of note may intervene in suit brought by another. An intervene!- alleged that the notes sued on had been by him placed in the hands of an agent for collection ; that the agent and another, intending to defraud the intervener, brought the suit upon them against the makers, and that the notes were the property of the intervene!-, and were never indorsed or transferred by him to any one; it was held that he had the right to intervene and claim the benefit of the original suit, to the exclusion of the bar of the statute of limitation, and that the nominal plaintiffs in the said suit could not defeat his right after iiling of petition of interven- tion, and notice to them by dismissing the suit. 2 S. instituted suit against B., and, having died pending the suit, his widow peti- tioned to revive as only heir; whereupon M. claimed the negoti- able security declared upon, as intervener, and, upon consultation between the widow and the intervener, the right was decided in favor of the intervener, and thereafter he prosecuted the suit in his own name to judgment. It was held that there was no error. 3 An administrator of K. brought suit upon a note payable to the e\ tors of K. One of the executors named in the note intervened in the suit, claiming, as sole surviving executor, the ownership of the note ; and the plaintiff having filed a statement that he was not the leiral representative of K., the executor recovered judgment. 4 "Where the payee of a note assigns it pending suit, the assignee may intervene and prosecute the suit to jugment; and it is not ma- terial in such case that the defendant died before the assignment. 5 ?' 209. Assignee of a chose in action pendente lite may intervene. Generally speaking, an assignee of a chose in action, pendente lite, need not be made a party; for every person purchasing j>mBreinoml v. Manley, 31 T. 6. 4 Batchelor v. Douglass, 31 T. 182. Action was brought against A. on a note executed by him to B., and which B. on executing a note had transferred as col- lateral security, and it was held that B. could intervene in that suit and set up fraud in the execution and delivery by him of the note to secure which the note in suit was transferred. Ernest v. Moline Plow Co., 27 S. W. Rep. 734 (8 Civ. App. 159). 6 Converse v. Sorley, 39 T. 515. Where the maker of a note is garnished, and interveners come into court and assert property in the note, and present it to the court, the presumption is that the note came to their hands before maturity. Bassett v. Garthwaite, 22 T. 230. 236 INTERVENTION OF THIKD PARTIES. [ 210. equities of the persons under whom he claims in privity. 1 But as a party may purchase a chose in action during the pendency of a suit in relation to the same, he may be made a party thereto and have judgment in his own name. 2 In case of bankruptcy, the assignee must be made a party in all cases where any interest in the property, real or personal, vests in him. 3 A transfer of an interest in a policy of insurance pending a suit on the policy authorizes an intervention by the assignee to pro- tect his interest. 4 210. The owner of personal property may intervene in a suit re- specting it, brought by another. Where the maker of a note, given for the hire of negroes, was sued, a third person was allowed to intervene, claiming that the negroes were his property, and were hired by the plaintiff as his- agent, although it appeared that the ownership of the slaves was in controversy, in a suit between the plaintiff and the intervener. In this case, the facts that the plaintiff acted as the agent of the intervener, and that the defendant did not know that the plaintiff claimed to own the property, Avere considered to be material. 51 When the assignee of a bill of lading sued forwarding merchants for unlawful detention of the goods, the consignors were permitted to intervene and defend, claiming that the goods were detained by virtue of their right of stoppage in transitu. It is true, the inter- veners could not shield the defendants from responsibility for their own unauthorized acts; but the rights of the interveners were in controversy between the original parties to the suit, and the decis- ion might materially affect them, and perhaps subject them to the necessity of further litigation. They were the real party in inter- est, adversely to the plaintiff, and were properly admitted, as par- i Story 'sEq. PL 156. * Taylor instituted suit against Srnalley for a balance due on account. After- wards the plaintiff and defendant submitted all matters to arbitration. An award was made and returned into court, but before judgment was entered up, and upon the suggestion by the defendant of the bankruptcy of the plaintiff, Swanson intervened, setting up a transfer to himself from the plaintiff, made more than a year previous, of the entire subject-matter of the suit, and all claim and interest of the plaintiff in and to the amount due from the defendant; and judgment was rendered against the defendant and in favor of Swanson for the amount of the award. In relation to the suggestion of bankruptcy, it was said that the question was not legitimately before the court; at least so far as the proof was concerned. Smalley v. Taylor, 33 T. 668. 'Story's Eq. PL 158; Bankrupt Laws, sec. 14 'Liverpool & L. & G. Ins. Co. v. Ricker, 31 S. W. Rep. 248. 6 Eccles v. Hill, 13 T. 65. In a suit for the trial of the right of property, a mere lien upon the property in favor of a third person, without the right of posses- sion, and without a showing that the lien would be impaired by a sale under execution, does not give the right to intervene. Belt v. Raguet, 27 T. 471. 211.] I.vn.i:\ I.N II"N h ilIIKD PARTIES. 237 to enable them m<'tv effectually to assert and maintain their right, and in order that the whole controversy might be settled in one suit". 1 Where II. petitioned the court for mandamus to com- pel tin- < unity >urvrvor to record the field-notes of a survey made for him, upon the lieadrigbt certificate of one N., there was an ex- ception to the petition, which the court sustained, and gave leave to the plaintiff to amend, and continued the cause. At the next term, tin- administrator of A. was permitted to intervene, claiming the cer- tificate in right of the estate of his intestate, and had judgment to compel the county surveyor to record the field-notes. 2 ? 211. Bights of purchaser of land pendente lite. In actions of trespass to try title, the question to be tried is the title at the time of the demise laid, or the commencement of the action. If that be good, the plaintiff is entitled, as a general rule, to a recovery. And if he have voluntarily assigned or transferred his interest in the meantime, the plaintiff would still be entitled to a recovery inuring to the benefit of the vendee. On the other hand, if he did not prove a good title at the commencement of the action, Ins vendee would be bound by judgment for the defendant. Tho litigating parties are exempted from taking any notice of the title so acquired, and such purchaser need not be made a party to the suit. 3 It is held that the fact that an intervener bought an int in t^ie land in controversy from one not a party subsequent to the filing of the suit in no way affects his right to intervene and assert such title as he may have. 4 One who, pending a suit involving property, purchases at a trust sale the interest of one of the parties in that property, occupies a position entitling him to intervene in that suit. 5 1 Chandler v. Fulton, 10 T. 2. 'Wright v. Neathery, 14 T. 211. * A plea in the action of trespass to try title of an outstanding title in a third person is not sustained by evidence of the conveyance of the property ex hy the plaintiff during the pendency of the suit. Lee v. Salinas, 15 '! Pending an action of trespass to try till**, the plaintiff sold his interest in the land to other parties, who thereupon were permitted l>y the court Mow to be- come plaintiffs in the place of the original plaintiff. ///'/, that in this the court erred; the rights of the parties were fixed at the institution of the suit, and no sale, pendente lite, by the original plaintiff could entitle his vendees to be in:n!o plaintiffs in his stead, or exonerate him from the responsibilities of the suit. Att-r such a sale, however, if the original plaintiff should recover judgment, it would inure to the benefit of his vendees. Hen me v. Erhard, 38 T. 60. The purchaser of land pendente lite, in answer to the plea of defendants that plaintiffs had sold their interest in the land, answered. - -ttin^ forth the facts and made himself a party plaintiff. Judgment having been rendered for the defendant in the court below, an appeal by the intervener was dismissed on the ground that he was an improper party to the suit Clarke v. Koehler, 32 T. 679. Stanley v. Schwalby, 85 T. 348 (19 S. W. Rep. 264). 4 Fleming v. Seeligson, 51 T. 524. In a suit to foreclose a mechanic's lien it 233 INTERVENTION OF TBlD PARTIES. [ 212. One who purchases land pending a suit in which the title to the land, or a lien upon it, is involved, does so subject to the final judg- ment in the cause, whether he be made a party to the suit or not. But his title is not affected unless the suit terminates adversely to his vendor. 1 If dismissed or abandoned, no subsequent suit founded upon the same cause of action, much less one seeking a different remedy for different reasons against the same land, can interfere with the purchaser's title, unless he be made a party thereto. The abandonment of one cause of action and the adoption of a new one, bv amendment, is, in effect, the dismissal of the former suit and the commencement of a new one, and all parties interested, not already before the court, must be served in order to be bound by the newly- sought decree. All defenses accruing down to the date of the amendment may be pleaded in bar of the action. It has been held that a plaintiff cannot set up a new equity so as to affect a pur- chaser who bought previous to the filing of the amendment in which it is asserted, though the prayer for relief be not changed. Much less will the amendment affect such a purchaser if the equity be different and contradictory of the original bill, and the relief be of a different character. 2 212. In actions affecting title to property. It is held that the practice in this state permits intervention in suits for real or personal property. 3 In a suit by a contractor, to- foreclose a mechanic's lien, third parties, as material-men, claimed the right to come in by intervention. One of them claimed a lien, but there was neither allegation nor proof of the recording of the bill of particulars; the other showed a record, and service on the defendant, and the defendant had promised to pay the claim. It was held that the claims of the original plaintiff and of the inter- was held that where facts exist authorizing intervention in a suit pending by a lit pendens purchaser, the failure to intervene will not conclude the rights of such purchaser when he did not know the necessity for such intervention and the facts were withheld by the parties alleged to have collusively agreed upon a judgment not authorized by the facts. Wolf v. Butler, 81 T. 86 (16 S. W. Rep. 794). 1 Wortham v. Boyd, 66 T. 401 (1 S. W. Rep. 109); Flanagan v. Pearson, 61 T. 302; Randall v. Snyder, 64 T. 350; Harle v. Langdon, 60 T. 555; Moore v. Moore, 67 T. 293 (3 S. W. Rep. 284); Evans v. Welborn, 74 T. 530 (12 S. W. Rep. 230). * Wort-ham v. Boyd, 66 T. 401 (1 S. W. Rep. 109); Stone v. Connelly, 1 Met. (Ky.) 654 A purchaser of a tract of land by metes and bounds from one party to a partition suit, pending the proceeding, should not be allowed to intervene with- out showing that he was an innocent purchaser without notice, or that there are othr equities which could only be adjusted by his intervention. Griffin v. Wilson, 39 T. 213. Pool v. Sanford, 52 T. 621, citing Field v. Gautier, 8 T. 74; Eccles v. Hill, 13 T. 65: Burditt v. Glasscock, 25 T. Sup. 45; Smith v. Allen, 28 T. 497: Smalley v. Taylor, 33 T. 668; Mussina v. Goldthwaite, 34 T. 125; Whitman v. Willis, 51 T. 421. 212.J I.MKKVKMIo.N uF THIRD PARTIES. 239 veners were so intimately connected, and so dependent the one upon the other, as to present a proper case and subject-matter for intervention, so that the respective rights of all the parties, includ- ing the plaintiff himself, could be adjusted and protected. 1 When the title to real property is directly involved in a pending- suit when it is the subject-matter of the suit any one claiming an interest in such subject-matter, at the time of the commencement of the action, which may be affected by the decree, has the right to intervene, if demanded in a proper manner and at a proper time ; and the refusal to grant leave so to do will be corrected on appeal. But when the title to real property is only indirectly in- volved, where it is not in issue, but where the property is simply levied upon as the property of the original defendant, then a third party who is in possession, in order to entitle himself to the right to intervene, should allege such facts as would authorize a court of equity to grant him a writ of injunction, upon the familiar doctrine that he cannot ask equitable relief when he has an adequate rem- edy at law. 2 This rule is affirmed in other cases, and it is held that in a suit to foreclose a vendor's lien, one claiming an interest in a part of the land, but whose title can be in no way affected by the decree, has no right to interfere in the suit. 8 Where non-resident creditors of a corporation, having its origin and domicile in a sister state, attach land in this state belonging to the corporation, a receiver of the property of the corporation, ap- pointed by a court of the state in which the corporation is located, may intervene. 4 !Pool v. Sanford, 52 T. 621, citing PhiL on Mech. Liens, sec. 205; Loonie v. Hogan, 5 Seld. (9 N. Y.) 440. - Whitman v. Willis, 51 T. 421. It is said in this case, that, on authority, it would seem that more indulgence should be granted in favor of the right of the wife to intervene to protect her interest in property, as the homestead, which has been levied upon as subject to the debts of the husband; and that this ex- ception is, perhaps, based upon the ground that there is such legal unity be- D husband and wife that she may be viewed in the light of an original defendant citing Baxter v. Dear, 24 T. 17, 21; Stoddart v. McMahon, 35 T. -,'f^; Freem. on Ex'n. sees. 438, 439. Faubion v. Rogers, 66 T. 472 (1 S. W. Rep. 116). In a suit to foreclose a mort- gage, one holding a deed of trust on the property under which he is in posses- sion at the time he intervenes is properly allowed to intervene. JolmMoii v. Killing Mfg. Co., 24 S. \V. Rep. 996. A vendor who retains title as security for unpaid purchase-money should be allowed to become a co-defendant with his vendee in a suit against the latter for land. Galan v. Town of Uoliad, ::,' T. 776. A husband conveyed the homestead, the wife not joining in the deed. The wife died first, and in a suit concerning the title to the land it was held that the administrator of the husband's estate had no right to intervene, assert the invalidity of the hu>l>and's deed, and claim the land as subject to administra- tion. Irion v. Mills. 41 T. 810. 4 Gayoso Sav. Inst. v. Burrow, 37 T. 88, See Graves v. Hall, 27 T. 148, 154 240 INTKRYKNTION OF THIHD PARTIES. [ 213-215. S 213. In trespass to try title, owner of land may intervene in a suit brought against his tenant. When an action of trespass to try title is brought against a tenant in possession, the landlord may enter himself as the defendant, or he muv he madr a party on motion of the tenant, and will be entitled to make tin- same defense as if the suit had been originally commenced gainst him. 1 Where suit was brought on several promissory notes signed by the defendant, and for the recovery of a city lot conveyed by defendant to plaintiff, third parties were permitted to intervene and claim the lot by a conveyance subsequent in date to that under which plaintiff claimed. 2 An intervener in a suit for land should set out facts entitling him to a recovery against the original parties to the suit. 3 214. Bights of lienholders. la suits by mechanics, laborers, etc., to enforce liens for wages against railroads and their equipments, other lienholders may in- tervene and have their rights determined and adjusted by the court. 4 215. Where property is seized under attachment, execution, etc. In ordinary attachment suits, third persons claiming an interest only in the property attached, and not in the subject-matter of the suit, cannot intervene in the main action for the purpose of assert- ing their right to the attached property. The proper course, as a general rule, if they desire to set up their right to the property, is to tile a claimant's bond, or pursue the sheriff in an action of tres- pass, 5 or sue the purchaser at the sheriff's sale for the recovery of the property. 8 The right to intervene in an attachment suit is 1 R. S. 5253. The regular and most convenient mode of practice in making the landlord a party would be to apply, by oral motion, for leave of the court to be made a party; but this course is not an imperative requirement, and the failure to pursue it is a formal rather than a substantial error. Caldwell v. Fraim, 32 T. 310. 2 Phelps v. Zuschlag, 34 T. 371. ' Del Rio Building & L. Ass'n v. King, 71 T. 729 (12 S. W. Rep. 65;. In trespass to try title to a subdivision of a survey, the boundary of the survey being in- volved, owners of another subdivision of the survey were properly allowed, on the evidence set out at length, to intervene to protect their interests. Butts v. Caffall, 24 S. W. Rep. 373. The title set up by an intervener to a part of the land does not prevent the plaintiff's recovering as against the defendant. Roosevelt v. Davis, 49 T. 463. In an action of trespass to try title, instituted by heirs against parties holding adversely to the estate of their ancestors, a legatee entitled to a moneyed leg- acy, and not seeking to subject the land to sale, cannot intervene and recover the land. Acklin v. Paschal, 48 T. 147. R.S. 3313. 4 Ryan v. Goldf rank, 58 T. 356. Jaffray v. Meyer, 1 App. C. C., 1351; Rodrigues v. Trevino, 54 T. 198; Gar- ner v. State, 36 T. 693. In Stoddart v. McMahan, 35 T. 267, it was held that the V 210.] IM'KUVKNTIoX OF THIRD V.\l: U H limited to those who have an interest in the subject-matter of the suit. 1 On trial of tin- Hirht of property taken in execution, if third per- sons claiming prior liens on the property be permitted to intervene at all, thev should he allowed to do so only on making oath or giv- ing bond as required for trials of the right to property, or for an injunction against an execution. 2 216. Rights of attaching creditors. The right of a. subsequent attaching creditor to intervene in an action in which a prior attachment has been levied, and show thar the older attachment is based on a fraudulent demand, or one which has in fact no existence, for the purpose of having his lien de- clared superior and enforcing payment out of the attached property, is fully recognized ; 3 but he cannot intervene for the purpose of defeating the prior attachment OD the ground of mere irregularities in the proceedings. 4 He may intervene in order to have the judg- wife of defendant in an attachment had the right to intervene and claim a part of the attached property as a homestead, and recover damages for its >ri/.mv. 1 Meyberg v. Si -a^all, 51 T. 351. In Harrison v. Harwood, 31 T. 650, it was hold that where an attaching creditor had acquired a lien by a levy, other cred- itors could not intervene on the ground that the defendant was insolvent, and obtain a pro rata division with the attaching creditor. In Burlacher v. \Vatson.38 T. 62, one claiming title to personal property seized under attachment was permitted to intervene and recover the property as against the plaintiff and another, who had intervened, claiming a lien on the property. Attachment being levied upon community property in which the heirs of the deceased mother had an interest, to protect which interest they intervened, it was held that interveners had no such equitable right as entitled them to int'-r- vene, and that th. Power of the legislature to change the law. 221. Suits by married women. Transient persons. :. Residence without the state, or unknown. ;. Residence of defendants in dif- ferent counties. ">. Contract to be performed in a particular county. 226. Validity of contract as to venue. 7. Actions against executors, ad- ministrators or guardians. 228. Fraud or official defalcation. 229. In cases of crime, offense, or tres- [IMft 230. Wrongful attachment or seques- tration. 231. Suits for recovery of personal property. .'. Concerning inheritances. 233. Foreclosure of mortgage or lien. 234 Suits for partition. 235. Suits concerning land. 236. Breach of warranty of title. 237. Suits for divorce. 238. Enjoining judgments, etc. 239. Judgments, actions on, and to evive or vacate. 240. Revising proceedings in probate. 241. Suit against a county. 242. Mandamus against heads of de- partments. 243. Forfeiture of charters. 244. Suits to forfeit railroad lands. 24.1. Suits against private corpora- tions, including railroad com- panies. 246. Suits by mechanics, etc., against railroad companies. 247. Suits against foreign corpora- tions. 248. Suits against insurance com- panies. 249. When a river or road is a county boundary. 250. Contested elections. 251. Actions against and to appoint receivers. 252. Plea of personal privilege may be waived; how tried. 211. General principles. Subject to certain exceptions, hereinafter stated, an inhabitant of the state must be sued in the county in which he has his domicile. 1 I'ntil a new county is organized in accordance with law, the terri- tory thereof remains in all respects subject to the county from which the same has been taken. 2 "Where a new county had Urn created by the legislature, and had been organ i/ed iwith the excep- tion that no district court clerk had Urn fleeted i. but the county had not been attached to any judicial district, the inhabitants were El 1194; Farris v. Seisfield, 1 App. C. C., 351; Kinney v. McCleod, 9 T . 244 VENUE OF ACTIONS. [ 217. hold liable to be sued in the county to which they belonged before the creation of the new county. 1 The word domicile in the statute means residence? The object of the law is to prevent citizens from being drawn from home to distant counties to defend suits brought against them. It is there- fore to be liberally construed whenever it is necessary to carry out this object ; but whenever it is invoked for any other purpose, as where the defendant claims the right to be sued in a county other than that of his domicile, it is entitled to no construction other than its plain and literal meaning. 3 Where suit is brought in one county, and defendant is alleged to reside in another, although it seems proper, and perhaps necessary, to allege facts which show that de- fendant is not entitled to be sued in the county of his residence, yet if not successfully met by plea in abatement, it is not necessary to prove such facts under the general issue. 4 It is the general rule that every inhabitant of this state must be sued in the county of his domicile ; and if from a petition it appears that a suit is brought in a county other than that of the defendant's domicile, objection may be made to the venue of the suit unless the petition states facts which bring it within one of the exceptions to the general rule. 6 Some of the exceptions are peremptory, requir- ing suit to be brought in a particular county ; others provide that it may be brought in a county other than the one in which the de- fendant resides. The latter are for the benefit of the plaintiff, and confer on him the right to choose between different counties in bringing his suit, in the exercise of which the courts will not control him. If a fraud upon the jurisdiction is attempted by the plaintiff, it may be made available by plea setting up that fact. 6 The right to maintain a suit in another county than that in which the statute fixes the venue must depend upon the existence of the facts which constitute the exception to the statute, and not upon the mere allegation of such facts. That is, where jurisdiction of the person of a defendant is claimed under some exception to the general rule, and the defendant pleads his privilege of being sued in the county of his domicile, to -defeat this plea and deprive him of the right claimed the facts relied upon must be proved. The rule in such case differs from the rule announced in cases in which jurisdiction depends upon the amount claimed. In such cases it is 1 Runge v. Wyatt, 25 T. Sup. 291. 2 Brown v. Boulclen, 18 T. 431. And see State v. Skidmore, 5 T. 469; Russell v. Randolph, 11 T. 460, 465; Ex parte Blumer, 27 T. 734. 'Finch v. Edmondson, 9 T. 504 4 Wilson v. Adams, 15 T. 323. Thompson v. Locke, 66 T. 383 (1 S. W. Rep. 112). 6 Carro v. Carro, 60 T. 395. '. 7.] NTE OF ACTIONS. held that jurisdiction depends upon the amount alleged in the peti- tion. 1 A- t> th<> riirht of a plaintiff to set up a supplemental cause of action by amendment, it is held that whore suit is brought in the county win iv jurisdiction rightfully belongs under the case stated in plaintiff's original petition, the court will retain its jurisdiction ovi-r tin.- case in respect to any supplemental cause of action subse- quently engrafted on the original cause of action by an amended petition, unless such amendment set up such additional cause of ac- tion fraudulently to deprive the defendant of his personal privilege to litigate it in the county of his residence. To hold otherwise would be to attach a condition to the right to amend the cause of action as originally declared on, incompatible with the spirit of the la\v' regu- lating amendments, and which the statute has not prescribed. If a party has been properly sued in a county other than that of his domicile, the subsequent proceedings in respect to the matters that may be litigated in it under amendments varying the character of the issues to be tried, and what subject-matters may be added by way of amendment for determination in that suit, are to be deter- mined not on a question of privilege as to where such matters may be tried, but according to the rules of law which determine what may be added by way of amendment to the subject of litigation as it was presented in the original petition. The general policy of the law is to avoid a multiplicity of suits; and it favors the adjustment of the rights of the parties in one suit if it can be done consistently with those rules of law, which for their own reasons fix a limit and a boundary to the liberal rule which thus encourages the settlement of controversies in one suit where it can be done, so as not to drive a party to another suit and before another forum to adjust that which may be settled in that jurisdiction before which the parties already are. The right given by the statute to be sued in certain > s of actions in the county of his residence is to be construed relatively to and with other statutes and rules of pleading and pro- cedure, and when the suit is brought in a proper county, although it be not in that of the defendant's residence,in the absence of fraud, ordinarily, the suit will proceed subject to the rules of law common to all other cases, unaffected by a question of venue.* Where a defendant, by plea, asks to have a third party brought in, on the ground that such third party has undertaken to guaranty him entire immunity from any judgment that might be reco\ against him, such plea is a suit against such third party, and ho has a right to insist upon his privilege of being sued in the county of his residence. 8 It is not decided that in no case could a third i Hilliar.1 v. WiU.n. 76 T. 180 (13 S. W. Rep i.lall v. Hjii-kwi.rth. 06 T. 499 (18 a W. Rep. 104), "Blum v. Root, 2 A pp. C. C., 98; Holloway v. Blum, 60 T. 623. _'}' VENUE OF ACTIONS. [218. purt\ r be brought in on the application of the defendant. On the contrary the cases are numerous where it was allowed. These cases are examined and distinguished. 1 A plaintiff sued for damages caused to his land and the improve- ments thereon, situate on the south bank of the Kio Grande river in Mexico, by obstructions placed in the bed of said river by de- fendant, on the Texas side thereof, in the county of Cameron, in \\ -h ifh county the defendant resided and the suit was brought. On the question of jurisdiction it was held that: (1) The technical rules of the common law do not determine the venue of a cause in Texas. (2) If the state failed to give to one of its citizens a remedy against others for such an injury as the one complained of, it would fail to observe the constitutional pledge promising a remedy by due course of law for injury done to lands, person or reputation, as plainly as if it refused a remedy for an injury inflicted in a foreign jurisdic- tion to one's goods or person. (3) Article 1194 of the Revised Stat- utes subjects every citizen to be sued in the county of his domicile, subject to certain exceptions of which this is not one. That article annuls the technical rule of the common law regarding transitory and local actions. (4) The fourteenth exception to article 1194 (that in relation to land) has no application in this case, and the action was maintainable in Cameron county, as the county of de- fendant's residence, not only under the general provisions of that article, but under the ninth subdivision, in relation to crime, offense or trespass. 2 218. Domicile; residence. The statute uses indiscriminately the words domicile and resi- dence, the county in which the defendant has his residence, in which he resides ; and it is held that the same thing is meant by the use of the two words. 3 It is said there are few subjects pre- sented to the courts for their decision which are surrounded with so 1 Legg v. McNeil, 2 T. 431; Garrett v. Gaines, 6 T. 446: Cooper v. Singleton, 19 T. 267; Iglehart v. Moore, 21 T. 504: Bailey v. Trammell, 27 T. 325; Demaret v. Bennett, 29 T. 270; Denison v. League, 16 T. 408; Williams v. Wright, 20 T. 502; Eccles v. Hill, 13 T. 66; Peters v. Clements, 46 T. 123; Estell v. Cole, 52 T. 178. An account in favor of the Rockwall Farmers' Alliance, domiciled in Rockwall county, against H. Jones and T. J. Wood, Jr., neither of whom resided in said county, was transferred to appellee, who instituted suit thereon in Rockwall county against Jones and Wood and the Rockwall County Alliance, aHeging that the former were partners and that the latter had guarantied the account. The transfer of the account being simulated, and intended solely for jurisdic- tional purposes, it was a fraud upon the jurisdiction of the court, and the plea of Jones and Wood claiming their privilege to be sued in the county of their residence should have been sustained and the cause dismissed as to them. Jones v. Austin, 6 Civ. App. 505 (26 S. W. Rep. 144). 2 Armendiaz v. Stillman. 54 T. 623. 'Brown v. Bouldin, 18 T. 431. IS.] SUE OF ACTI" 247 many practical difficulties as questions of domicile. The residence is often of an equivocal nature; the intention extremely obscure, and has to be gathered from acts and declarations oftentimes con- flicting and contradictory. The word f his affairs and interests; from which, without some special ition, he lias no intention of departing; from which when he has depart fd he is considered to be from home; and to which, when he has returned, he is considered to have returned home. In this there is no doubt whatever he has his domicile." * Residence at a place, no matter for how short a time, with the present inten- tion, either openly declared or secretly entertained, of remaining there indefinitely, constitutes domicile, although the person may have a floating intention of going elsewhere at some undefined future time. 2 It is held in this state that a person being at a place is pi facie evidence of his being domiciled there, and it lies upon him to rebut the presumption : declarations of a person's intention an- ad- missible on the question, and are to be credited when not unreason- able in themselves, not inconsistent with other facts, and not under circumstances creating suspicion of insincerity. 1 A domicile once acquired is not lost or changed until a new one has b.-en actually acquired. 4 The burden of proving a change is on the party asserting it. 5 Every person is presumed to have a domicile somewhere, and can have but one at any given time. 6 He cannot be a resident of two states at the same time. 7 When a person has two residences, leaving the question of domicile in doubt, he may select and treat cither as his domicile.* The domicile of the husband and father determines that of the Phillmore on Domicile, 11; White v. Brown, 1 Wall. Jr. 217. 14 Myer's Fed. 2 Harris v. Firth. 4 Cr. C. C. 710: Ewing v. Blight, 3 Wall. Jr. 134; Ex part- ii. : I till. 885; The Venus, 8 Cranch, 253; Ennis v. Smith. 14 How. John-. n \. Tu.-nty-one Bales of Merchandise, 2 Paine, 601, 14 Myer's Fed. Dec,, j.|.. ".18. 519. >Ex parte Blum. r. ,'T T. 734. 4 Mclntyn- v. ( -a],].. 11. 4 T. is?; Ex parte Blumer, 27 T. 734; Cross v. Evarts, 28 ,ite v. Hrown. 1 Wall. Jr. 217; Burnharn v. Ranp ly. 1 W.HMlk & Minot. 7, 14 My.-r's 1Y<1. I)..-., pp.506, 513: Knnis v. Smith. 14 How. 400; Mitchell v. Unit-l states. -Jl Wall. 350; Desman- r. I'mt-.l States, 3 Otto, 605. Cross v. l.\ Desmare v. United States, 8 Otto, 605. Brent v. Arrntk-M. 4 Cran.-h. < \ ( '.. < .T79. 8 Burnham v. Rangely, 1 Woodb. & Minot, 7, 14 Myer's Fed. Dec,, p. 5ia 248 VENUE OF ACTIONS. [ 219. wife and minor children. 1 An infant cannot change his domicile, 2 Though it seems that he may if he be emancipated. 3 It is said that the wife may acquire a domicile apart from that of her husband whenever it is necessary or proper that she should do so. The right springs from the necessity of its exercise, and continues as long as the necessity exists. 4 Where she is divorced a mensa et lli',,-n she may acquire a new domicile, 5 for the purpose of suing her husband in a federal court. 6 The question of domicile is a mixed question of law and fact. The court instructs the jury what constitutes a domicile, and the jury are to apply those principles to the facts as found by them. The court may properly instruct them that if they find certain evi- dence to be true, then there was a change of domicile. 7 ? 219. Venue prescribed by particular law. Whenever in any law authorizing or regulating any particular character of action the venue is expressly prescribed, the suit must be commenced in the county to which jurisdiction may be so ex- pressly given. 8 Actions for damages against a common carrier for failure to feed and water live-stock may be brought in any court having jurisdiction in any county where the wrong is done or where the carrier resides. 9 So, also, as to actions for failure to execute and deliver a bill of lading or to carry goods when offered. 10 A petition by a minor to remove his disabilities as a minor must be presented to the district court of the county where the minor resides. 11 County and district officers are removed from office by petition tiled in the district court of the county where the officer resides. 1 -' A mayor or an alderman of a town or city is tried and removed from office by the common council of such town or city by the ' Russell v. Randolph, 11 T. 460; Lacy v. Clements, 36 T. 001 ; Hardy v. De Leon, 5 T. 211; Franks v. Hancock, 1 U. C. 554; Prentiss v. Barton, 1 Marsh. 389; Levy'a Case, Election Cases, 41; Powers v. Mortee, 4 Am. Law Reg. 427; Oglesby v. Sillom, 9 Fed. R 860, 14 Myer's Fed. Dec., p. 522. " Franks v. Hancock, 1 U. C. 554; Trammell v. Trammell, 20 T. 406. 8 Woolridge v. McKenna, 8 Fed, R. 650, 14 Myer's Fed, Dec., p. 650. Cheever v. Wilson, 9 Wall. 108. 5 Bennett v. Bennett, Deady, 299. 6 Barber v. Barber, 21 How. 582, 14 Myer's Fed. Dec., p. 523. 7 Pennsylvania v. Ra venal, 21 How. 103, 14 Myer's Fed. Dec., p. 516. RS. 1194, exception 27. R S. 320. > R. S. 321, 322. ' R S. 34'.w. 12 R S. 3.")42. The proceedings against a district attorney may be had in the county of his residence, or in the county in which the alleged cause of removal occurred, if in a county of his judicial district. R S. 3554. !'..] YKNU: OF ACTIO 240 mayor and aldermen in case of an alderman, and by a majority of the aldermen when the mayor is tried. 1 I'r-x ident of the state, temporarily sojourning within the state. He is not a person whose residence is simply unknown to the plaintiff: and where a defendant in a suit on a contract pleaded in abatement that at the time suit was brought he was a resident citi- t a certain county, and not subject to be sued in the county in which suit was brought, and thereupon plaintiff amended, alleging that at the commencement of the suit defendant was a transient n. having no fixed domicile known to the plaintiff, but no al- :on was made to repel the legal presumption that defendant's 'nee could have been ascertained by proper inquiry, it was hdil that the district court should not have retained jurisdiction of the case. 2 It is held that a non-resident may be sued as a transient person under Hartley's Digest, page 241, evidently referring to the provision at the head of this section. 3 The Vermont court says a transient person is a wanderer ever on the tramp. 4 But this is evidently not the person intended by the statute. 223. Residence without the state, or unknown. Where the defendant, or all of several defendants, reside without the state, or where the residence of the defendant is unknown, suit may be brought in the county in which the plaintiff resid> AVhere a person is in the act of removing his domicile from one county to another, it seems that he may be sued in either. At lea>t where he has his residence in one county for a considerable time anterior to the bringing of the suit, he may be sued in that county, unless he has effected an actual and complete change of residence from that to another, not only by going to prepare a home for his family in the latter county, but by actually removing his family and principal effects thereto. 8 The fact that the defendant does busi- ni the county in which he is sued does not give jurisdiction, if learly proved that his domicile is in another county. 7 ss v. Evarts, 28 T. 523; Desmare v. United States, 8 Otto, 605, 14 M> . r L Dec., p. 519, g.V->. - Brown v. Read, 33 T. 629. Mullen v. Guest, 6 T < Mid. II, -bury v. Waltham. 6 Vt 203. R S. 1194, exception 8. Brown v. Boulden, 18 T. 431; Wilson v. Brid-man, 24 T. 615; Tucker v. Ander- A defendant who had. for eighteen years, resided on his planta- tion in Wharton county, actuated by considerations of health, removed his whit-- family and house servants, in June, IHoG. to Comal county, win-re they remain, d until October, 1858, during which time the plantation in Wharton county was still carried on. On these facts it was held that in February, lx>. he had such lencein Comal county as authorized the plaintiff to sue him in that county. Tucker v. Anderson. '21 T iBluchor v. Milsted, 31 T. 621. 252 VENUE OF ACTIONS. [ 223. When it is uncertain in which of two counties a defendant re- sides, he may be sued in either. In the case of partners, where the residence of one is certain and that of the other is doubtful, the question of venue is not left uncertain. 1 Where suit is brought in the county of plaintiff's residence, on the ground that defendant's residence is unknown, a plea by de- fendant stating a lonafide residence in another county makes only &prima facie case in his favor, and where plaintiff offers evidence to show that defendant's residence was in fact unknown to him at the institution of the suit, and could not be discovered on diligent inquiry, jurisdiction will be retained. The disclosing of defend- ant's place of residence by his plea is not sufficient to defeat the jurisdiction. 2 Where suit is brought against two or more defendants jointly liable, if the residence of one defendant is known and that of the oth- ers unknown, the suit must be brought in the county of the one whose residence is known. 3 After exceptions sustained to citation to defendant and to serv- ice, the defendant voluntarily appeared, no new process having issued, and filed pleas to the jurisdiction of the court only as to the subject-matter of the suit and the venue of the cause, defendant al- leging that he was not a citizen of Texas. It was held that the defendant's appearance being voluntary, the court had jurisdiction of his person as fully as though he had been served with proper process; that the court having jurisdiction of his person, and he being a non-resident, the suit was properly brought in the county of the plaintiff's residence ; that the defendant being sued for dam- ages on account of a conversion of plaintiff's property, it was im- material where the property was when the suit was brought, or whether it was wrongfully converted within or without the state, 1 Blum v. Younger, 2 U. C. 302. In a case where the proper venue depended on the residence of the defendant, it was found that he had gone from the county in which he had fir^fc lived to another county, and had there engaged in busi- ness, taking with hirn all his movable property; that he had sold his house and given possession, but had returned, and was only prevented from removing his family by sickness, and it was notorious that he had removed from the county of his former residence, It was held that, when it is uncertain in which of two counties a defendant has his residence, he may be sued in either, In this case he could not properly be sued in the county where he first resided, Faires v. Young, 69 T. 482 (6 S. W. Rep. 800), Three partners residing in Dallas under- took a larsce contract in Galveston, possibly running through several years, though their connection might cease at any time. Two of the partners lived in Galveston with their families, but expected to return to Dallas on the comple- tion of the work. It wa held that the firm could not demand that a suit against th -m be removed to Dallas county, O'Connor v, Cook, 26 S, W, Rep. 1113. * Kuteman v. Page, 8 App. C, C,, 104 And see Walker v, Walker, 32 T, 331. 3Claiborne v, Pickeas, 4 App, C, C,, 117, Jt.] NTE OF ACTI< 253 and that it was equally unimportant whether defendant had re- d the property under a contract to deliver within this state or not. Having voluntarily given to a court of Texas jurisdiction of his jtpiNon, he could not on a subsequent appeal to the district court withdraw jurisdiction from that court, but the power existed in that court to declare the extent of his liability, and enforce pay- ment thereof by sale of any property belonging to him found within the limits of the state. 1 Suit was brought in Texas by a non-resi- dent plaintiff against a non-resident defendant, having once been partners, to prove up for record (under art. 4664, R. S.) an instru- ment in writing which on its face certified that the defendant had given up to plaintiff all claims which once belonged to both, and also all claims to land which belonged to both. The firm did own land in Texas, but not situate in the county where the suit was brought. On plea to the jurisdiction in the nature of a plea in abatement, calling in question the power of the district court to adjudicate upon the subject-matter, it was held that the statute in such a case does not fix the venue, and the parties being non-resi- dents, having no domicile in Texas, the venue must be determined neral rules applicable to the matter, independent of statute; that the cause of action was not local but transitory, though the result of the action might, on some future contingency, affect the title to land indirectly, and that the cause of action w r as one re- garding which jurisdiction could be exercised in the district court of any county in which service could be obtained on the defendant, or where he might appear and, by making defense, waive service.' 224. Residence of defendants in different counties. Where there are two or more defendants residing in different coun- ties, the suit may be brought in any county where any one of the de- fendants resides.' The defendant who resides in the county where the suit is brought must be either a necessary or proper party de- i Liles v. Woods, 58 T. 416. *Pegram v. Owens, 64 T. 475. A plaintiff brought suit by publication in the county of his residence, against non-residents, and alleged in his petition that defendants had no property in the state other than a note due them by * resident in a different county, which note was in the hands of an attor- ney resident in the county where suit was brought, and prayed for judgment and satisfaction thereof out of the proceeds of the note when collected, and also for an injunction restraining the attorney from paying over to the defend- lie proceeds of the note until plaintiff's judgment should be satisfied. The defendants excepted to the jurisdiction of the court, on the ground that, plaintiff's own showing, the defendants were non-residents, and had no property, effects, claims or demands in the county where the suit was brought - held that the suit was well brought, and that the exception was prop- erly overruled. Mickie v. McOehee, 27 T. 134. 1 R, S. 1194, exception 4; Erath Co. v. Robinson, 80 T. 433; Randon r. Barton, i T. .>S9; Raymond v. Holmes, 11 T. 54. VEXUE OF ACTIONS. [ 221. fendant; if he is neither a necessary nor proper party, a plea to the jurisdiction filed by non-residents of the county joined with him in the action should be sustained. When such a plea is interposed by one of several who are joined as defendants in a suit to recover damages for a tort, brought in a county where he does not reside, and there is evidence tending to establish the fact that the defend- ant who resides at the venue of the cause is not liable, it is error not to present in a charge to the jury the issue thus arising on the plea to the jurisdiction. 1 If the defendant has been sued in the wrong county by the joinder of a fictitious co-defendant, though by mistake, the suit should be dismissed; that is, if the real defendant has not voluntarily submitted to the jurisdiction. 2 A note may be assjgned by the payee so as to confer jurisdiction in the county of his residence, if the assignment is made bona fide, for the purpose of applying the proceeds of the note in payment of a debt due the assignee. 3 Suit may be brought in the county in which one of two or more defendants resides without regard to the character of a defendant's liability, whether primary or secondary it may be brought in the county in which the guarantor or surety resides when he is joined with the principal. 4 It may be brought in the residence county of any one of several defendants, whether such defendant is sued as prin- cipal or surety. 5 Suit against the maker and the indorser of a note may be brought in the county in. which the latter resides. 6 Where goods are sold and the purchaser's note is taken, in a suit on the note in the county of the maker's residence one who had, by letter, guarantied payment of the price of the goods is properly joined, though his residence is in another county. 7 1 Tex. & Pac. Ry. Co. v. Mangum. 68 T. 342 (4 S. W. Rep. 617); Raymond v. Holmes, 11 T. 54; Poole v. Pickett, 8 T. 122. A plea that the use of plaintiffs name as plaintiff, and that of a co-defendant as defendant, and the indorsement of the note sued on, are but fraudulent contrivances to confer jurisdiction on the county in which the co-defendant, the indorser, resides, and to deprive the defendant of the privilege of being sued in the county of his domicile, is good. Poole v. Pickett, 8 T. 122. 2 Henderson v. Kissam, 8 T. 46. Christie v. Gunter, 26 T. 700. 4 Bergstrom v. Bruns, 24 S. W. Rep. 1098. * Lyons v. Daugherty, 26 S. W. Rep. 146. Williams v. City Nat Bank of Quanah, 27 S. W. Rep. 147. 7 Vogelsang v. Mensing, 1 App. C. d, 1165. Suit was brought by a surety on an administrator's bond, in which by its terms the obligation of the parties was made joint and several, against his co-sureties for contribution, alleging the death and insolvency of the administrator and the payment of the bond by plaintiff on judgment rendered, and it was held that the suit could be maintained against all the co-sureties in any county in which either of them resided. Rush v. Bishop, 60 T. 177. Suit on vendor's lien note payable to bearer. The note had passed by delivery from the payee. This holder indorsed the note and a bank became _'.">.] VENUE OF ACTI- Persons jointly liable with a railroad company may be joined in a suit against such company brought in a county other than that in which tli*y rasde, provided such county is the one in which the railroad company has its domicile. 1 225. Contract to be performed in a particular county. Where a person has contracted in writing to perform an obliga- tion in any particular county, suit may be brought either in such fount v or where the defendant has his domicile. 5 Suit is properly brought in the county in which, by its terms, the written contract was to be performed. 5 And it has been held that the statute contemplates that the written contract should plainly provide that it is to be performed in a county other than that in which defendant resides. 4 A contract in relation to the sale and purchase of wheat was made by letters and telegrams, and was in substance as follows: "We will sell you ten cars of wheat, F. 0. 13., at McKinney, Collin county, at sixty-five cents." Reply: "I will take ten cars F. O. B. at sixty-live cents." This was held not a con- tract to pay for the wheat in Collin county. The letters " F. O. B." do not mean a promise to pay for goods at the place of shipment.'* In a later case, in which no reference is made to the case above cited, the action was based on a contract by letter, written by a private corporation, in reference to a proposed sale and purchase of cotton seed, "We will be glad to handle your shipments, and beg to quote you 9 per ton good crop seed f. o. b." This was held a contract to pay at the place of shipment.' holder. It sued the maker and indorser in the county of the residence of the in- doraer. The maker by plea contested the jurisdiction of the court over him. It was held the court had jurisdiction of the case and to foreclose the lien. Anderson v. Bank, 86 T. 618 (28 S. W. Rep. 344). The petition showed that B. and P. had a cause of action against T. in amount sufficient to give jurisdiction to the county court. P. had sold his half of the claim to B., and guarantied payment of $125. In suit by B.. P. was a proper party. The statute allowing suit in the county of the residence of one of several defendants makes no dis- tinction as to the character of his liability, whether primary or as security. Turner v. Brooks, 2 Civ. App. 451 (21 S. W. Rep. 404). > Red River, S. & W. Ry. Co. v. Blount, 8 Civ. App. 282. See 245, post, and notes. 1 R. S. 1194. exception &. 1 Phillips v. Adkins, 1 App. C. C., g 292. Baker v. Foster, 3 App. C. C., 305. 8 Cameron v. Webb, 3 App. C. G, g 417. ' Merchants' & Planters' Oil Co. v. Seeligson. 4 App. C. C., 200. A memoran- dum in writing, in relation to a contract for the purchase of coal, stating the amount of coal bought, the price and place of delivery, and a reply thereto ac- knowledging receipt and requesting to be advised of the arrival of the coal, do not constitute a contract on the part of the pure' rform the obligation in any particular county. Walthew v. Mil!>y. :i App. C. L'.. ?; 1'J'J. Tin- i'^-t that defendants were running and operating a mill in a county through their agent, 256 VENUE OF ACTIONS. [ 225. In other cases it is held that the question to be determined is, whether the legal effect and purport of the written instrument is that it should be performed in the county where the suit is brought. 1 And this appears to be in accordance with the weight of authority. It is held that an action on a specific contract to deliver goods at a certain place may be commenced in the county where the goods were to be delivered, or in the county where the defendant resides. 2 A claim bond is returnable to the proper court of the county in which the levy was made, and it may be sued on in such county. 3 ]>ut it is held that a county convict bond is not a contract to be performed in the county in which it is executed. The obligor must be sued in the county of his residence. 4 The exception does not apply to a surety on an administrator's bond, when the administra- tion is pending in a different county from that of the surety's resi- dence. Such a bond does not require the surety to answer for the defalcation of his principal in any particular county. 9 A suit on a note and to foreclose a lien on personal property was held properly brought in the county in which the note was payable. while they had their domicile in another county, and that the agent contracted the debt in the county where the mill was situated for the use and benefit of the defendants, would not make them liable to be sued in such county, miles?, as part of the contract, the defendants, through their agent, had further bound themselves to pay the debt in that particular county. It is not sufficient that a person contracted the debt sued for in a certain county, but he must also con- tract to perform it in that county. It must ba a part of a written contract. Mann v. Clapp, 1 A pp. C. C.. 503. It does not follow that because one has agreed to render, and has rendered, services in a particular county, the contract also obligates the other party to pay in that county. The liability to pay is a general one, and not one which obliges the party to pay at any particular place. Little v. Woodbridge, 1 App. C. C., S 1.V1 1 Henry v. Fay, 2 App. C. C., 834, 835. It is held that if any place in such county is attempted to be designated by the contract, it is admissible to prove all the attendant circumstances to show that the place named was intended to mean a place in the county. The above ruling was made in a suit on a note which was alleged to be made payable at Gainesville Bank, and the note offered in evidence purported to be payable at "Goneville Bank." The court holds that by a proper amendment the variance might be explained so as to show jurisdic- tion; but it is not intimated that in any case any presumption may arise as to the place of performance of a contract simply from the nature of the contnu t or the circumstances attending it. * Barrow v. Philleo, 14 T. 345. 8 Denson v. Horn, 4 App. C. C., 226. * Baker v. Foster, 3 App. C. C., 305. 8 Cohen v. Munson. 59 T. 236. To entitle a plaintiff to sue in a county othrr than the residence of the defendant he must bring his case clearly within the statute. A contract for the building of a house, and a bond conditioned that the contractor build the house as he contracts to do, are two separate contracts. The latter, unless otherwise expressed on its face, can be sued on only at tl-e residence of one or more of the makers. Lindheim v. Muschamp, 72 T. 33 (12 S. W. Rep. 125). J.">.] OF ACTI< 257 Tin.- property on which the lien was claimed was in the possession third person, who was made a party, but it does not appear from tlif opinion whether the property was located in the county in which the suit was brought or in some other county. 1 Goods sold to A., a resident of Shelby county, upon his written orders containing the following statement: "This, as well as all previous and subsequent purchases, is payable at your office in Gal- veston, with interest," etc. After the orders were given, money advanced to him with which to purchase cotton. Suit was irht against him in Galveston county for a balance due on the is and for a balance due on account of money advanced, and it was held that his plea of privilege should have been sustained as to the claim for balance on money advanced. The word purchases in tin; written orders did not embrace the money transaction. 2 The suit may be brought in the county in which the contract is to le performed or in the county of defendant's domicile.* The contract must be in writing; an oral agreement is not suffi- cient. 4 Suit on three notes was held properly brought in the county in 1 Mathews v. Denison, 1 App. C. C., 1256. 2 Baines v. Mensing, 3 App. C. C., 363 (75 T. 200). Defendant, for the purpose of procuring credit, made and signed a statement of his assets and liabilities, and to this was attached an agreement that "All purchases made from Leon and II. Blum are payable in Galveston." Suit was properly brought in Galveston county, whether the purchases were made at the time of the agreement or after- & Traylor v. Blum, 7 S. W. Rep. 829. Defendant, a citizen of Van Zamlt county, wrote the following letter to plaintiffs, citizens of Galveston: " I make the following statement of my commercial standing with a view of obtaining $2,000 as advance from you, for which I promise to make you liberal shipments of cotton this coming season, and to reduce and settle off my account at your in Galveston, Texas, as follows: To reduce to $1,500 by 1st of December, and to reduce to $1,000 by 1st of January, 1879, and to reduce to $500 by 1st of IVliruary, 1879, and to settle in full by 15th of March, 1879, and to have an in- terest account at ten per cent per annum." An action to recover a balance due for advances and supplies was properly brought in Galveston county. Kautrman v. Dean, 2 U. C. 195. An action by the state to recover rent due on a lease of school lands urul. r the act of 1883 was properly brought in the county in which the r.-nt, by the is of thf lease, was payable. Fitzgerald v. State, 9 S. W. Rep. 150. A. and B. made a contract by the terms of which A. agreed to honor the - of B. to the extent of $40 on each bale of cotton shipped to A. a i, and if the cotton when sold did not bring $40 per bale, B. was to refund tii.- dt-ti-it. There was a deficit, and A. sued B. in Galveston county, ai J - h>ld that B. did not undertake to pay in that county. Morrison v. Jak- nick. 1 App. G i'.. . 'Durst v. Swift, 11 T. v'7:!; Barrow v. Philleo, 14 T. 345. Bain. s v. M, using, 75 T. 200 (12 S. W. Rep. 984). In Miller v. McDannell, 1 -'58, the court In la that a promise that goods bought should be paid for " over the counter" at the purchaser's place of business is a sufficient contract to make the money due therefor payable in the county in which the bu- is conducted, but without noticing the fact that the promise was made orally. VENUE OF ACTIONS. [ 226. which two of the notes were payable, no place of payment being- named in the third one. 1 "Where a contract is by its terms to be performed in a particular county, one who guaranties the performance of such contract may be sued in that county. 2 An allegation that the defendant under- took to pay the debt sued for in a certain county is sufficient with- out setting out the contract. 3 226. Validity ot contract as to venue. Parties residing in one county gave a bond to secure a contract for the construction of a building in another county, stipulating therein that a suit for breach of the bond might be instituted in such other county. It was held, in a suit on the bond by the ob- ligee, that defendants' plea of privilege to be sued in the county of their residence was not tenable. Such waiver and agreement does not come within the inhibition contained in article 1349 of the Ee- vised Statutes, invalidating agreements for acceptance of service, waiver of process, entry of appearance, or confession of judgment. The article cited provides that the acceptance of service and waiver of process, or the entry of appearance in open court, or a confession of judgment, shall not be authorized by the instrument in writing sued on, or any other instrument executed prior to the institution of the suit, and that an acceptance or waiver of process shall not be made until after suit brought. It does not, it is held, extend beyond the matters named, none of which enter into the waiver agreed to in this case. 4 Before the adoption of the article referred to, an agreement authorizing suit to be brought in any county in the state and the designation of an attorney to waive process and con- fess judgment, with power to sue out attachments and other writs at pleasure, waiving all right of action for damages, was held valid ; 8 but it is thought that an agreement to that extent could not be sustained under the article in question. 1 Middlebrook v. Manufacturing Co., 86 T. 706 (26 S. W. Rep. 935). In Yeager v. Focke, 6 Civ. App. 542 (25 S.W. Rep. 662), the judgment was sustained on an account containing several items and payable in a certain county, but was re- formed by deducting one item which was not payable in the county in which the suit was brought. In Altgelt v. Harris, 11 S. W. Rep. 857. it was held that a cause of action suable only in the county of defendant's domicile cannot be joined with one which may be sued upon in another county, the place of performance, thus compelling defendant to submit to the jurisdiction in the latter county. 2 Looney v. Le Gierse, 2 App. C. C., 532. 3 Whittaker v. Wallace, 2 App. C. C., 558. * Ft. Worth Board of Trade v. Cooke, 6 Civ. App. 324 (25 S. W. Rep. 330); Bur- leson v. Lindsey, 23 S. W. Rep. 729. *Grubbs v. Blum, 62 T. 426. K, defendant, a resident of Austin county, exe- cuted a written contract containing the following stipulations: 1. That the in- debtedness should be paid at plaintiff's office in Galveston, Texas. 2. That the *7, 228.] VENUE OF ACTIONS. 259 .-' 227. Actions against executors, administrators or guardians. Where the suit is against an executor, administrator or guardian as such, to establish a money demand against the estate which he represents, it must be brought in the county in which such, estate is administered. 1 This provision, as it appears in Paschal's Digest, is as follows: "Incases of executors, administrators, or guardians of an estate, or trustees, who must be sued in the county in which the estate is administered." 2 The provision that the suit must be one " to establish a money demand against the estate," it seems, has been added since 1874. Those cases, therefore, which hold that all cases against executors, administrators, etc., must be brought in the county in which the estate is administered are no longer of any force. 8 The venue of a suit upon the bond of an administrator for failing to pay over money pursuant to the order of the court on final set- tlement is properly laid in the county of the residence of the de- fendants, not in the county of the administration. The statute under consideration does not apply to such a case. 4 A bill against an executor to obtain a construction of a will must be brought in the county in which the executor has his domicile. Such a suit is not one "to establish a money demand." 5 "28. Fraud or official defalcation. In all cases of fraud, and in cases of defalcation of public officers, suit may be instituted in the county in which the fraud was com- mitted, or where the defalcation occurred, or where the defendant lias his domicile. 6 The fraud which will authorize a defendant to be sued out of the county of his residence means fraud in reality, and an ordinary re- fusal by the defendant to comply with his contract is not such attorney of K. should be authorized to "appear in open court, at any time, and in any court having jurisdiction of the amount," and waive process and confess judgment upon said indebtedness or any portion thereof. 3. That an attach- iiu-iit mi^'ht be sued out by plaintiffs upon said indebtedness, or any part thereof, in "any court or courts having jurisdiction of the amount or amounts sued for." 4. That all claims which the said K. might prefer by reason of any attach- im-nt sued out should be asserted by him "in the court or courts whence such attachment issued, and not elsewhere." Suit was brought in Colorado county, and it was held error to sustain defendant's plea of privily- 1 . Tin- stipulations authorized a suit in any county in the state. Lewy v. Karger, 3 App. C. C., $109. i R. S. 1194. exception 6. I ). (edition of 1874), art. 1 Neill v. Owen, 8 T. 145; Richardson v. Wells, 3 T. 223. And see Durst v. Swift, 11 T. 273; and Finch v. Edmondson, 9 T. 504. Stewart v. Morrison, 81 T. 396 (17 & W. Rep. 15). 5 Crosson v. Dwyer, 30 & W. Rep. 929. *R. S. 1194, exception 7. 260 VENUE OF ACTIONS. [ 220. fraud as comes within the meaning of this statute. 1 It is only \vhrn tlu- principal cause of action is a fraudulent act, or when the main object of the suit is to set aside a fraudulent transaction, that a suit may be maintained in the county of the fraud. 2 Where the object of the suit is to recover the price of goods sold, this provis- ion of the statute cannot be invoked on the ground that defendant had practiced a fraud upon plaintiff in relation to the sale of the goods. 3 The mere allegation that defendant fraudulently induced plaintiff to enter into the contract with intent to ruin his business, etc., and that there was a breach of the contract to plaintiff's dam- age, is not sufficient. Failure to comply with a contract does not constitute a fraud within the meaning of the statute simply because it results disastrously to plaintiff's business. 4 The exception applies as well to constructive as to actual fraud. Land was conveyed by deed absolute in its terms, but in trust to secure a loan. The grantee in breach of his duty sold the land to bona fide purchasers. Such sale was fraudulent and gave jurisdic- tion where the fraud was committed. 5 A suit to set aside deeds alleged to have been made in fraud of creditors was properly brought in the county of defendant's resi- dence, without reference to the location of the land conveyed. 6 229. In cases ol crime, offense or trespass. "Where the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie, the suit may be brought in the county where such crime, or offense, or trespass was committed, or in the county where the defendant has his domi- cile. 7 " Where the defendant has committed some crime, or offense, or trespass, for which a civil action in damages may be commenced " is the wording of this provision in Paschal's Digest. 8 The word trespass, it seems, was added by the amendment of 1863, and the decisions prior thereto held that a suit in the nature of trespass de bonis aspwtatis did not come within the exception, because the act, without a breach of the peace, did not amount to a crime. 9 Under the law as it now stands, the venue in cases of trespass for the taking and conversion of personal property is in the county where the act was committed. 10 1 McLaughlin v. Shannon, 3 Civ. App. 136 (22 S. W. Rep. 117). 2 Freeman v. Kuechler, 45 T. 593, citing Finch v. Edmondson, 9 T. 504, and Evans v. Mills, 16 T. 196; Watson v. Baker, 67 T. 48. 3 Cameron v. Webb, 3 App. C. C., 418. 4 Baines v. Mensing, 75 T. 200 (12 S. W. Rep. 984). ^Boothe v. Fiest, 80 T. 141 (15 S. W. Rep. 799); Evans v. Mills, 16 T. 196. Lehmberg v. Biberstein, 51 T. 467. See, also, Finch v. Edmondson, 9 T. 504. 7 R. S. 1194, exception 9; Hill v. Kimball, 76 T. 210 (13 S. W. Rep. 59). P. D. (ed. 1874), art. 1423. 9 lilies v. Knight, 3 T. 312; Robertson v. Ephriam, 18 T. lia "Willis v. Hudson, 72 T. 598 (10 S. W. Rep. 713). 229.] OF ACTIONS. Any wrongful, unlawful act, which results either directly or in- directly to the injury of another, either in his person or his prop- erty, ainl for which a civil action in damages will lie, is a trespass within the meaning of the statute. 1 The difference between a tvh- nical trespass and a wrongful act from which an injury indirectly results relates only to the form of the action. In the former < -as.- it is an action of trespass, in the latter trespass on the case. In the Texas system this distinction is not made. Where a barbed win.' fence is not constructed as required by the statute, and injury re- suits to the property of another, suit may be brought in the county where the injury occurred. 2 The word trcpass is intended to em- brace only actions for such injuries as result from wrongful acts wilfully or negligently committed, and not those which result from a mere omission to perform a duty. 3 In its widest signification it means any violation of law ; in its most restricted sense it signifies an injury intentionally inflicted by force, either upon the person or property of another. But it still has a signification in law much more narrow than the first, and more enlarged than the second meaning given, and embraces all cases where injury is done to the person or to property, and is the indirect result of wrongful 1 Cook v. Horstman, 2 App. C. C., 770; Calm v. Bonnett, 62 T. 674 Cook v. Horstman, 2 App. C. C., 770. 'Ricker v. Shoemaker, 81 T. 22 (16 S. W. Rep. 645); Austin v. Cameron, 83 T. 351 (18 S. W. Rep. 437). Where an employee is injured by the want of perfect machinery which he is using in his work, or by the want of care of one in con- trol of the work, it is held that such injury is not the effect of a trespass as the word is used in the statute, Connor v. Saunders, 81 T. 633 (17 S. W. Rep. 236). Where the superintendent of a work, with power to employ and discharge hands, etc.. knowingly and intentionally performs a negligent act, by which injury re- sults to an employee, such act constitutes a trespass, and an action may be brought in the county in which the act was committed, though not the county of the principal's residence. It is not decided that the act would amount to a trespass if it were merely negligent, but the inference is that it must be done with a full knowledge that it is dangerous. Connor v. Saunders, 29 S. W. Rep. 1140. Suit for damages for personal injuries caused by the defendant's representa- tive failing to do an act which it was his duty to do. This is not a trespass within the meaning of the exception. Ricker v. Shoemaker, 81 T. 22 (16 S. W. Rep. 645). Suit was brought by A. for the benefit of himself and others interested against C. & Co. for damages for the death of his wife and child. The defendants owned and operated a ferry. Plaintiff's wagon, in which were his wife and child, was driven upon the ferry-boat of defendants. While entering it the rope securing: the boat broke, causing the engulfing of wagon and contents. It was alleged that the defendants solicited cu brought in the county in which the seizure occurred, either by an assignee for creditors who had title and right to pos- ion or by his successor in the trust. 1 A plaintiff cannot bring suit for damages on account of a mali- iion in the county wherein he was arrested, when the 'ution was beirun in another county, and where the defendant the proee.-dinos attending the prosecution being regular, cution is begun at the instance of an individual, the initial step is the affidavit upon which the warrant for arrest issues. e, in a suit for malicious prosecution, the "offense," in contem- plation of the exception, is not the arrest, but the making of the affidavit and causing the warrant to issue. The county in which this is done determines jurisdiction. Under a warrant legally is- sued, an officer can commit no trespass by executing it according to its command: if it be illegal, or issued without authority of law, he becomes a trespasser when executing it. 2 fore a justice for the value of his son's services, alleging that the defendant en- ticed his son away. The evidence showed that the boy left home voluntarily, ami that defendant persuaded him to remain with him, and it was held that suit should have been brought in the justice precinct in which defendant re- L Bracken v. Johnson, 24 S. W. Rep. 1101. Damage caused by fire escaping from the engines of a railroad company may be sued for in the county in which the injury occurred. H. & T. C. Ry. Co. v. M. Donough. 1 App. C. C.";i 5t. When suit is brought against the obligors in a bond for breach of contract, and the Im-aeh resulted from an act of the agent of the obligors which was in i criin.-. '{inrre, whether the fact would authorize the bringing of the suit in the county in which the crime was committed, but in which none of the par- !--e ,>nly jn the county of their i it was held that the venue as to all the defendants wa< in the county of the seizure and conversion. Willis v. Hu.Kon. 7'J T. .V.i* ,111 S. W. Hep. 7 JHubbard v. Lord, 59 T. :{S4: Milliard v. Wilson, 65 T. 288. 264: VENUE OF ACTIONS. [ 23CL A suit for damages for a wrongful attachment, or for the seizure of property not subject to attachment, may be brought under the provision under consideration, and prior to the adoption of the act of 1889, 1 such suits were brought under this exception. 2 Ordinarily, however, the action could only be brought in the county in which the actual trespass (the levy and seizure) was committed, though the rule was relaxed in some cases. There is some obscurity, how- ever which may have given occasion for the act of 1889. 8 . An action for damages caused to land and the improvements thereon, situate on the south bank of the Rio Grande river, in Mex- ico, by obstructions placed in the bed of the river on the Texas side, in the county of Cameron, may be brought under this exception. 4 A railroad company mciy be sued in any county in which its agents have committed a trespass. 5 230. Wrongful attachment or sequestration. Any suit for damages growing out of the suing out of any writ of attachment or sequestration, or for the levy of any such writ,, may be brought in any county from which such writ was issued, or in any county where such levy was made, in whole or in part,, within this state. 6 Actions for wrongful attachment were formerly brought under the exception relating to crime, offense or trespass, and it is prob- ably not material now which provision is invoked to maintain the venue, 7 though in Baines v. Jemison 8 the suit was brought in the county where the writ was levied, and complaint was made that the court charged the law as it was when the suit was commenced, i R. S. 1194, exception 8. See 230, infra. *Cahn v. Bonnett, 62 T. 674; Billiard v. Wilson, 65 T. 286; Willis v. McNatt, 75 T. 69 (12 S. W. Rep. 478): Focke v. Blum, 82 T. 436 (17 S. W. Rep. 770). An action for wrongful attachment may be brought under the exception under con- sideration in the county in which the writ was levied. Willis v. McNatt, 75 T. 69 (12 S. W. Rep. 478). Where the officer to whom a writ of attachment is di- rected, overstepping the bounds of discretion allowed him by the writ, makes use of it to wrongfully and unnecessarily oppress and injure the defendant, he commits a trespass, for which a civil action will lie against him; and if the plaintiff in attachment instigates or countenances such wrong and oppression, he becomes a participant in the trespass, and is liable to a suit, either in the county of his residence, or in that in which the attachment proceedings were commenced, or in the county in which the trespass by the officer was committed. Any expressions found in Cahn v. Bonnett, 62 T. 674, or in any other cases in the Texas Reports, inconsistent with the foregoing rule, will not hereafter be re- garded as authoritative. Billiard v. Wilson, 65 T. 286. 'Focke v. Blum, 82 T. 436 (17 S. W. Rep. 770); Billiard v. Wilson, 65 T. 286. 4 Armendiaz v. Stillman, 54 T. 623. 6 Bartee v. B. & T. C. Ry. Co., 36 T. 648. 6 Acts 1889. p. 48; R. S. 1194, exception 8. 7 Focke v. Blum, 82 T. 436 (17 S. W. Rep. 770). 86T. 118(238. W. Rep. 639). 231-233.] VENUE OF ACTIONS. 2i.> ignoring this provision, and it was decided that the provision was not applicable to suits begun before its enactment. The suit was for the wrongful issuance of an attachment, and the wrongful and illegal levy thereof, and it is not apparent from the opinion what benefit the complaining party expected to derive from having one provision charged rather than the other. The levy by actual seizure of personal property not subject to the writ of attachment under which the seizure was made is a tres- and plaintiffs causing the seizure are the participants in the trespass, and the venue as to them, when sued for the wrongful seizure, lies in the county where it was committed. 1 281. Suits for recovery of personal property. Where the suit is for the recovery of any personal property it may be brought in any county in which the property may be, or in which the defendant resides. 2 232. Concerning inheritances. Where the defendant has inherited an estate, concerning which the suit is commenced, the suit may be brought in the county where such estate principally lies. 3 233. Foreclosure of mortgage or lien. Where the suit is for the foreclosure of a mortgage or other lien, it may be brought in the county in which the property subject to such lien or a portion thereof may be situated. 4 This is the act of 1846, amended in 1863 by adding the words "or lion." 3 The word- ing has been changed since, but the meaning has not been changed. As the exception now stands, a suit to foreclose a vendor's lien may be brought in the county in which the land lies; 6 otherwise, how- ever, prior to the amendment. 7 It has been held that the foreclosure of the mortgage or other lien must be the specific object of the suit; and that where mortgaged land is sold, and the purchaser as- sumes the debt, an action against him alone to recover a general judgment, and also to foreclose the mortgage, must be brought in tin' county of his domicile. 8 Where a judgment foreclosing a lien is obtained and the land is sold, and a resident of a county other than that in which the judg- Focke v. Blum, 82 T. 436 (17 a W. Rep. 770), citing R. a (1879) 1198; Gen. Laws, 21st !,,'.. p. 48, and 20th Leg., p. 49. J R.a 1198, exception 10. R. a 1198. exception 11. RS. 1194, exception 12. P. D., art. 1423, note: Hays v. Stone, 36 T. 181. Hays v. Stone. 36 T. 181: Joiner v. Perkins, 59 T. 300. 'Coffee v. Hays, 24 T. 190. "Higgins v. Frederick, 32 T. 282; Skaggs v. Murchison, 63 T. 848. 266 VENUE OF ACTIONS. [ 234. inent was had becomes the purchaser, proceedings to set aside the sale and to order a resale may be had in the court in which the judgment was recovered, on notice to the purchaser. The purchaser submits himself to the jurisdiction of the court by becoming a pur- chaser. And it is held, also, that statutes in relation to venue have reference to original actions, and not to such auxiliary proceedings as are involved in the exercise of jurisdiction in cases over which it has already vested. 1 The exception under consideration is for the benefit of the plaint- iff, and the defendant cannot complain if the suit be brought in the county of his residence. 2 g 234. Suits for partition. Suits for the partition of lands or other property may be brought in the county in which such lands or other property, or a part thereof, may be, or in the county in which one or more of the de- fendants reside. 3 The statute on the subject of partition between joint owners provides that " such joint owner or claimant may file his petition in the district court of the county in which the real es- tate sought to be partitioned, or a portion thereof, is situated." 4 It will be noticed that the provision is permissive, not mandatory, and there is, therefore, no conflict by reason of the omission of the clause of the first provision which permits the suit to be brought in the county where one or more of the defendants reside. The two provisions can also stand together, notwithstanding the provision that " "Whenever in any law authorizing or regulating any particu- lar character of action the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given." 5 Suit for the partition of land may be maintained in any county in which a portion of it is situate ; and when the action is brought in the district court for the partition of an estate, it may be main- tained in any county in which any of the land is located. 6 One or more of several defendant tenants in common must reside in the county in which a suit to partition land is brought in order to give the court jurisdiction, if the land be situated in other counties, though 1 Hansbro v. Blum, 3 Civ. App. 108 (22 S. W. Rep. 270). 2 Kinney v. McCleod, 9 T. 78. In a suit for the foreclosure of a mortgage on real estate, the defendant having demurred, and it being apparent on the face of the record that the defendant resided, and the land was situate, in a different county than that in which the suit was brought, the supreme court, although no errors were assigned, took cognizance of the want of jurisdiction in the court below, and dismissed the cause. Shropshire v. Dunson, 32 T. 467. R S. 1194, exception ia 4 R S. 3607. R.S. 1194, exception 27. Carro v. Carro, 60 T. 395; Osborn v. Osborn, 62 T. 495. ;5.] -IK OF Acn< such residence will not confer jurisdiction to partition an entire es- tate, consisting of several tracts of land, if the defendant residing at the venue of the suit has transferred his interest as joint tenant in one tract to a non-resident purchaser. So where suit was brought .lu.iinst several defendants, in a county in. which one of them re-sidcd. to partition separate tracts of land lying in other and separate counties, and the one defendant residing in the county where the suit was brought had no interest in one of the ti it was held that the court had no jurisdiction to partition such tract. 1 If in the petition it be shown that the defendants assert an ad- verse title, and there be a prayer for the recovery of title, the suit must be brought in the county where the land is situated. Thus, where plaintiffs in their pleadings aver their former possession and r by the defendants, and that defendants set up adverse title to the whole tract of land, and pray for partition, and also for the recovery of the title and possession, and for a writ of possession and damages, the suit is primarily one of trespass to try title, and the question of partition is only incidental. 2 ? 235. Suits concerning lands. Suits for the recovery of lands or damages thereto, suits to re- move incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land or a part thereof may lie.' The provision in Paschal's Digest specifies "cases where the recovery of land, or damages thereto, is the object of a suit." The act of 1836 -e where land is the object of the suit." 4 This provision is imperative, and leaves the plaintiff no discretion in the choice of a tribunal, if the defendant objects. The action -m '/.-/, in the cases specified, be brought in the county in which the i Peterson v. Fowler. 7 'IS. W. Rep. 534). irk v. Burr, 56 T. 130; Peterson v. Fowler, 73 T. 524 (US. W. Rep. 534). Suit was brought in Hopkins county l.y Nunn against Morns, who resided in Wood county, for partition of a partnership farm owned by the parties ami for a money claim owing plaintiff upon the settlement of their firm matters. The venue of the suit for partition was in Hopkins county, and the court also had uction t<> determine the question of the indebtedness claimed and to ad- judge it a lien upon the interest of the defendant in the land. Morris v. Nunn, 7'.' T. 125 (15 S. W. Rep. 22ui. Suit was brought for partition of land in which plaintiff claimed an equitable interest, and for specific performance of the con- tract by defendant to convey a part of the land to plaintiff. For the purpose of trying title and partitioning the land it was held that the court of the county in which the land lay had jurisdiction, the defendant residing in another county. ell v. Linthecum, 11 S. W. Rep. 1092. 'R.S. 1194, exception 14. P. D., art. 1423, and note. 268 VENUE OF ACTIONS. [ 235. land or a part thereof may lie. 1 An exception, however, is made in case of a trespass committed in a county in Texas which results in damage to land in Mexico*. It is held that an action for dam- o ages in such case may be brought in the county in which the de- fendant resides, under the general provision relating to venue, or in the county in which the trespass was committed, under the excep- tion relating to crime, offense or trespass. 2 It is held also that the statute confers a mere personal privilege which may be waived by the defendant, and the judgment of a district court of some other county whose jurisdiction has been submitted to without question will settle the title to the land as effectually as if suit had been brought in the county in which the land is situate. 3 A suit for the recovery of land, as used in the statute, means an action of ejectment, trespass to try title, or suit to recover the land itself. The " recovery of land " has reference to the possession, and " damages thereto " has reference to an injury to the possession or to the freehold or estate. 4 In a legal sense, the word " incumbrance " means an estate, interest or right in lands, diminishing their value to the general owner; a paramount right in, or weight upon, land which may lessen its value. Under the law in force prior to the Revised Statutes no suits affecting the right to land were required to be brought in the county where the land was situated except such as could be maintained as actions of trespass to try title. The intention of the legislature since, in increasing the classes of suits affecting the right to land which should be brought in the county where the land was situated, has been to provide the venue in all cases in which the title to land should be in controversy. Under the former law the action of trespass to try title could be main- tained to enforce the right acquired by locations upon land ; but under the Revised Statutes that action can be maintained upon no right lower than that acquired by location and survey. There is nothing in the nature of the right secured by the location of a valid land certificate which would require it to be adjudicated in a county other than that in which the land is situated, when the same right advanced one degree by the ministerial act of the surveyor must be there adjudicated, unless the right so to have it be waived by a defendant. Considered technically, a suit to quiet title, except in those cases in which it is permitted to establish a right between one person and many others claiming distinct and individual interests, is limited to cases in which a person in possession seeks relief against 'Stark v. Burr, 56 T. 130; Peterson v. Fowler, 73 T. 524 (11 S. W. Rep. 534); McDonald v. Alford, 32 T. 35. s Armendiaz v. Stillman, 54 T. 623. De La Vega v. League, 64 T. 205: Morris v. Runnells, 12 T. 176. < Miller v. Rusk, 17 T. 171. 235.] M i: 0V AC; ! 269 one who has repeatedly mid without success sought to obtain pos- >n liv the common-law action of ejectment. But the suits to quiet title contemplated by the statute are of broader purpose, em- lra<-in<: suits founded even on equitable titles instituted to remove cloud from such title, and suits necessary, as occasion may require it, to enable the holder of the feeblest equity to remove from his way to leiral title any unlawful hindrance having the appearance of better right. The rules of equity, that one will not be quieted in his title until ho has established it at law, and that one not in possession cannot main- tain an action to remove cloud from his title, can have no applica- tion in the courts of this state, which in the same action may deter- mine the right, be it legal or equitable, and give such relief as the nature of the case may require. It has at all times been held that the title between adverse litigants should be settled in the county w 1 K >re the land is situated. 1 The county surveyor is not exempt from the general rule which permits all persons to be made parties to a suit who are necessary to a complete determination of the contested right and to the granting of the full relief to which the holder may be entitled. Under this rule, if the jurisdiction is properly invoked at the place where the suit is brought, by reason of the subject- matter of the action, it is immaterial that some of the parties neces- sary to full relief may not be resident in the county in which the ion is brought.'-' Before the amendment of the exception relating to suits against executors, administrators and guardians, the tendency of the decis- ions was to the effect that that exception was controlling that the provision now under consideration was subordinate to that one. 3 Now, however, that exception specifies such actions only as may be brought to establish a money demand. When a petition having for its object the recovery of land alleges facts which if true show that the plaintitl' has the superior title, and is indorsed as required in the, action of trespass to try title, the proper jurisdiction is in the county u lirre the land is situated, without reference to places of residence of the respective parties. 4 The venue of a suit for the recover land or for partition of land lies where the land is situated. This 1 Tabor v. Commissioner, 29 T. 508; Commissioner v. Smith. 5 T. 171. - Thompson v. Locke, 66 T. 383 (1 S. W. Rep. 112). The venue of a suit against a surveyor to compel the performance of an official duty is in the county of the Mirvt.yor's resi'dence. The fact that others who are made parties defendant as- sert an adverse interest in the land will not constitute the proceeding such ;i suit involving title to land as to require or authorize its institution in the county u-h.-iv the land is sitn.it. I . x. Mex. Ry. Co. v. Locke, 63 T. 623. II v. Owen, 3 T. 345; Finch v. K.lmondson.O T. 604; Vandever v. Freeman, m Bender v. Damon, 72 T. 92 (9 a W. Rep. 747). VENUE OF ACTIONS. [ 235, rule applies where two tracts are involved and one lies partly out- side the county where suit is brought. 1 In a suit to remove cloud from title, brought in a county within which none of the land is situated, a plea in abatement filed in proper time and manner objecting to the venue should be sus- tained. A plea by any one necessary defendant is sufficient. 2 An action of trespass to try title against a railroad company must be brought in the county in which the land lies. Section 2& of article 1194, providing that suits against a railroad corporation may be brought in any county through or into which the railroad extends or is operated, is subordinate. 3 A suit for specific performance ought to be brought in the county in which defendant resides. 4 But where B. was in possession of the land sued for, holding under a deed, but the legal title was in "W"., who resided in a different county, the suit was properly brought in the county where the land was situated, and the plaint- iff had the right to join W., so as to obtain specific performance against him should he recover against B. 5 An action for the rescission of an executed contract for the sale of land is not an action for the recovery of land or for damages thereto, although the petition be indorsed with a notice that the action is brought as well to try title as for damages, and is prop- erly brought in the county where the defendant resides. 6 A bill 1 Murrell v. Wright, 78 T. 519 (15 S. W. Rep. 156). It is held that suit may be brought in any county where part of the land lies, although the part which the adverse party claims lies wholly in another county. Ryan v. Jackson, 11 T. 391. An action of trespass to try title, by tenants in common in two tracts of land located under one land certificate, but in different counties, and against heirs of the grantee of the certificate, can be maintained for both tracts, there being no plea in abatement nor special exceptions as to the tract of land lying in the county other than that in which suit is brought. Tevis v. Armstrong, 71 T. 59 (9 S. W. Rep. 134). 2 Russell v. Railway Co., 68 T. 64C (5 S. W. Rep. 686). 3 Ft W. & D. C. Ry. Co. v. Jenkins, 29 S. W. Rep. 1113. Miller v. Rusk, 17 T. 170; Hearst v. Kuykendall, 16 T. 327. And see Durst v. Smith, 11 T. 273. 8 Herrington v. Williams, 31 T. 448. The petition set up facts entitling plaint- iffs to specific performance of a contract for sale of certain lands situated in the county where suit was brought. These allegations were followed by alle- gations as in an action of trespass to try title for the same land. The defend- ant resided in another county. It was held: (1) The character of the suit is determined by the specific facts alleged, and the general allegations are sub- ordinate thereto, for which reason the suit must be deemed oqe for specific performance. v2) No agreement that the contract should be performed in the county where suit was brought being alleged, the venue could not be sustained on ground that the action is for the recovery of land. Cavin v. Hill, 83 T. 73 (18 S. W. Rep. 323). 6 Morris v. Runnells, 12 T. 175. Plaintiff alleged a contract with defendant under which lie, plaintiff, had the exclusive right to enter upon certain land and quarry and remove stone therefrom; also, that defendant, in violation of 17.] OF ACTI. to procure the cancellation of a deed alleged to have been made in fraud of creditors is properly brought in the county of defendant's residence. 1 236. Breach of warranty of title. In breach of warranty of title to lands, where the vendors liable thereon live in different counties, the plaintiff may bring his action in any county where either of such vendors resides, and join all other vendors in one and the same suit. 2 The plaintiff is not required to make all vendors parties, but he may sue them all in the county of the residence of any one liable on the warranty, and the court will have jurisdiction over the per- sons of all the other vendors, without reference to residence. A suit against two warrantors in the chain of title was held properly brought in the county of the residence of the one who was alleged to be a remote warrantor.' 237. Suits for divorce. Suits for divorce from the bonds of matrimony must be brought in the county in which the plaintiff, whether husband or wife, shall have resided for six months next preceding the bringing of the suit. 4 No suit for divorce from the bonds of matrimony can be main- tained, unless the petitioner shall, at the time of exhibiting his or her petition, be an actual bonajide inhabitant of the state, and shall have resided in the county where the suit is filed six months next preceding such filing.* An allegation that plaintiff "is a bona fide citizen of the county of Bell, State of Texas, and has been for more than six months be- fore the tiling of this petition," is not the equivalent of the provision that the petitioner "shall at the time of exhibiting his petition be an actual l>,t,i p',1. inhabitant of the state, and shall have resided in the county where the sait is filed six months next preceding the fil- ing of the suit," and a demurrer should have been sustained to it. actual inhabitancy as required by the statute was not shoun the contract, had entered upon the land, dispossessed plaintiff, and was remov- ing stone and converting it to his own use. A writ of injunction was prayed .straining defendant from removing stone, and for the value of stone re- i. It was held that the statute did not rf<|uiiv such action to 1> brought in the county in which the land was situated. It was not a suit lr tin- recov- f land, nor for damages thereto.nor to remove an incmnbr.-incc. nor to luii-t title, nor to prevent or stay waste, O'Connor v. Shannon, 30 S, W. Rep. 1096. Lehmberg v. Biberstein, 51 T. 4 *R a 1194. exception 15; Acts 1887, p. 69. 1 Can-others v. Jolm-m, 4 Aj.p. C, R S. 1194, exception 16. *RS.2978. VENUE OF ACTIONS, [ 238. when it appeared that in 1881 plaintiff left his home and family in Bell county, Texas, and resided in Central America from 1881 to December, 1885, and again from January, 1886, to October, 1887, the suit having been filed October 10, 1887. A temporary absence from the state or county of an inhabitant of the state during the six months next preceding the filing of his suit would not affect his right to maintain such suit. When residence in the county for six months before the suit is negatived, a divorce should be re- fused. 1 Where the petition is by the wife, who alleges that she is a bona fide inhabitant of the county in which the suit is brought, and has been so continuously for six months before the commencement of the suit, it is held that the bona fides of her residence depends upon whether she had sufficient grounds for leaving her husband, and has taken up her residence in the county named, not solely for the pur- pose of suing her husband for a divorce, but with the intention of making that county her permanent residence. The necessary facts being fully stated, the court has jurisdiction of the case without re- gard to the place where the offenses for which the divorce is sought were committed. 2 238. Enjoining judgment, etc. When the suit is brought to enjoin the execution of a judgment or to stay proceedings in any suit, it must be brought in the county in which such judgment was rendered or in which such suit is pend- ing. 3 Another statute reads as follows: Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, are re- turnable to and triable in the court where such suit is pending, or such judgment was rendered; a writ of injunction for other causes, if the party against whom it is granted be an inhabitant of the state, is returnable to and triable in the district or county court of the county in which such party has his domicile, according as the amount or matter in controversy comes within the jurisdiction of either of said courts. If there be more than one party against whom any writ is granted, it may be returned and tried in the proper court of the county where either may have his domicile. 4 The first clause of the preceding article is said to be imperative. 5 But when the person applying for the injunction is not a party to 'Raymond v. Haymond, 74 T. 414 (12 S. W. Rep. 90). 2 Jones v. Jones, 60 T. 451. As to jurisdiction to decree a divorce when the defendant is a non-resident,, see Tre vino v. Tre vino, 54 T. 261 ; Stephens v. Stephens C^T. 337. 3 R.S. 1194, exception 17. < R. S. 2996. *Hugo v. Dignowitty, 1 App. C. C., 158; Hendrick v. Cannon, 2 T. 259; Win- :>.] vKNfE OK I 273 the judgment sought to be enjoined, he may resort to the courts of vii county: as, in a case where goods levied upon arc claimed by a third person, and he seeks to enjoin a sale. 1 Where the execution of the judgment generally is sought to be prevented, or where the writ is granted to stay, that is, to stop, the execution of a judgment, the statute is imperative, and is suscepti- ble of but one construction that is, that the writ shall be returned or the suit brought in the county where the judgment was rendered. But the law requiring a suit to "enjoin the execution of a judg- ment" to be brought in the county of its rendition evidently applies to suits attacking the judgment, questioning its validity, or present- ing defenses properly connected with the suit in which it was ren- ! and which should have been adjudicated therein. It has no application to parties who do not sue to stay or enjoin the execu- tion primarily of the judgment as contemplated by the statute, but who sue to prevent the sale of property alleged to belong to them under a judgment, however valid and regular it may be, to which they are not parties and for the satisfaction of which their property could in no event be subject. Any other construction of the stat- ute would, where an execution was levied upon the property of per- sons not parties to the judgment, require such persons to adjudicate their rights to the same in a county not that of their domicile, and thus destroy a valuable privilege. Where the action is brought to enjoin a sale of land, it may be brought in the county in which the land lies. 2 239. Judgments, actions on, and to revive or vacate. A proceeding to revive a judgment by wire facias is not a new suit, but a continuance of the one in which the judgment was ob- tained, and the proper venue of it is the county in which the judg- ment was rendered. 3 In an action of debt on a judgment, the same being an original proceeding and not a mere continuation of a for- iner suit, the proj>er venue is the county of defendant's residence. 4 A suit fc> vacate a judgment and set aside a sale of land there- under must be instituted in the court by which the judgment was rendered. If the judgment is an absolute nullity from want of ju- nie v. Grayson, 3 T. 429; Cook v. Baldridge, 39 T. 250; George v. Dyer, 1 App. C. G, 780. ' Brown v. Young, 1 App. C. C, 1241 : Winnie v. Grayson, 3 T. 429. Van Ratcliff v. Call, 73 T. 490 (10 a W. Rep. 578); Hoggin v. White, 7 Civ. Apju r>63 (27 S. W. Rep. 1006). Suit for damages upon an injunction bond may be brought in a county in which reside one or more of the defendants, although it be in & county other than that in which the injunction suit was tried. Wood v. Hollander, 84 T. 394 (19 S. W. Rep. 551). J Ma.stf.rl'K OF ACTI' ProcLvdin.i:* against the Texas Trunk Railway Company were commence*! in 1^'. in Ellis county. 1 Proceedings purporting to be under the above act of 1879, against the Jefferson Iron Company, were brought in Marion county. - 244. Suits to forfeit railroad lands. Suits on behalf of the state to forfeit land fraudulently or color- ably alienated by railway companies in fraud of the rights of the . under the laws granting lands to railway companies, are brought in the county in which the seat of government may be. J 15. Suits against private corporations, including railroad com- panies. Suits against any private corporation, association or joint-stock company may be commenced in any county in which the cause of action or a part thereof arose, or in which such corporation, asso- ciation or company has an agency or representative, or in which its principal office is situated. Suits against a railroad corporation, or a.irainst any assignee, trustee or receiver, operating its railway, may 'also be brought in any county through or into which the railroad of such corporation extends or is operated. 4 Actions for damages against railroad officials for making false statements for the purpose of securing the registration of any bond or other evidence of debt, under the act of 1893, must be brought in either of the district courts of Travis county, or in the county where the principal office of the railway company is located. 5 An action for damages against a railroad company for extortion and discrimination, under the act of 1891, may be brought in any court of competent jurisdiction in any county into or through which the railroad may run ; all other penalties provided for in said act shall be sued for, in the name of the state, in the proper court hav- ing jurisdiction thereof in Travis county, or in any county to or through which the railroad may run, by the attorney-general, or under his direction.' Suits by the attorney-general in the name of the state to rec forfeitures and taxes due from sleeping-, palace-, or dining-car c<>m juinies may be brought in the courts of Travis county. 7 The "cause of action," as those words are used in the statute, consists not only of the right which plaintiff has, but of the injury ' Tex. Trunk Ry. Co. v. State, 83 T. 1 (18 a W. Rep. 199). 2 State v. Jefferson Iron Co., 60 T. 812. Const 1876, art XIV, 15; R S. 1194, exception 22. *R S. 1194, exception 2a is 1893, p. 56; R S. 4584Z. OR- 1877. - 130. \ i..\n: OF ACTIONS. [ 245. thereto; thus, when there is a breach of contract which by its terms was to have been performed in any particular county, a cause of action arose there, and the defendant can sue there. 1 A railroad company is a private corporation within the meaning of the stat- ute. 2 A suit against a corporation for failure to sell a consignment of wool according to agreement may be brought in the county in which the agreement was made. 3 An action was brought against the Gulf, Colorado and Santa Fe Kaihvay Company for damages for loss of and injury to baggage. Pending suit the Missouri Pacific Kail way Company was brought in, and it pleaded that it did not operate its road in the county in which the suit was brought and had no agent there. It was held that this plea, on its face, was sufficient; that the fact that the bag- gage had been checked through by this company from Waco to Brenham did not give the county court of Washington county ju- risdiction over the company. 4 Was the plea in fact sufficient? If the company received and checked the baggage through to its des- tination, might it not also have been liable for loss or damage hap- pening in a county through which its road was not operated, and in which it had no agency the county in which the cause of ac- tion arose, and ought not the plea to have negatived such lia- bility? 6 The statute makes no distinction as to the character of actions against railway companies, as it does where a natural person is de- fendant; and a suit against a railway company for an injury done to one's land and grass by fire caused by negligence of the company may be maintained not only in the county in Avhich the cause of action arose, but in any county through or into which the company operates its road, or in which it has an agency or in which its prin- cipal office is situate. 8 A railroad company is a person, within the meaning of the exception in relation to crime, offense or trespass, and may be sued in any county in which its agents have committed a trespass. 7 And in a suit against a private corporation for a tres- 1 H. & T. C. Ry. Co. v. Hill, 63 T. 381. 2 St. L. & S. F. Ry. Co. v. Traweek, 84 T. 65 (19 S. W. Rep. 370). 3 Western Wool Commission Co. v. Hart, 20 S. W. Rep. 131. havo committed, an allegation of residence of the defendant is not necessary. 1 ?' 246. Suits by mechanics, etc., against railroad companies. Suirs by mechanics, laborers and operatives for their wages duo by railroad companies may be instituted and prosecuted in any county in this state where such lal*>r was performed, <>r in which the cause of action or a part thereof accrued, or in the county in which the principal office of such railroad company is situated; and in all such suits service of process may be made in the manner nuw r-< |iiired by law. a In a suit by a holder of time-checks issued by subcontract" us, >.t a general contractor for building a railroad through the county where suit is filed, and also against the railroad company to enforce the laborer's lien upon the road, a plea in abatement by the contractor that his residence was in another county was prop- erly stricken out. The right to enforce the lien in the county where the railroad was built gives the jurisdiction. This was not _;itived in the plea. 3 ?' 247. Suits against foreign corporations. Foreign, private or public corporations, joint-stock companies or associations, not incorporated by the laws of this state, and doing business witiiin this state, may be sued in any court within this state having jurisdiction over the subject-matter in any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of suoh company may !>, situated ; or when the defendant corporation has no agent or rep- tint whose treasurer had his office in the county where suit was brought, may be sued in such county. Venue was sufficiently shown in the petition by tln> ions, so far as the railroad cerapany was concerned. H.. the m-.iMiivr. r M'lmg in the county where suit was brought, was also one of the trustees for th- citix' n-, aii'l one of the plaintiffs in the suit. Service was not had on him. hut on tin- president of the com|iany. who resided in another county. The venue was Buftlcieiitly shown \>y the allegations of the petition, and the evidence tl T - . which sustained it. The statute confers the right to sue a corporation in any county when- it has an agency or representative. The other defendant! who were sureties OD the bond of the railway company, and did not reside in the county where suit was brought, and who pleaded their privilege to b in the county of tli'-ir residence, could not be sued in another county, unl railway company had its domicile in the county when- the suit was inst:- which is not shown in this case. citing Hilliard v. Wilson, 76 T S. \V. .'->). Red River, S. & W. Ky.-Co. v. Dluunt, a Civ. AI -. \V. Ren. 1 southern Cotton Press Co. v. Bradley, 53 T. 587. - K. S, 1194, exception 34, 3314. A. & A. P. Ky. Co. v. Cockrill, ?:> T. 613 (10 S, W. Rep. 702). 278 VENUE OF ACTIONS. [ 248, 249. resentative in the state, then in the county where the plaintiffs, or either of them, reside. 1 This act authorizes suit against a foreign corporation in any county where such corporation may have an agency or representative, and without showing that its principal office is in such county. 2 "Where a non-resident corporation has an office and an agent in only one county in the state, it may be sued in that county, but not in any other. 3 A foreign railroad company may be sued in a county in which it has an agent who is authorized to solicit shipments of freight and sell tickets, etc., and citation may be served upon such agent. 4 248. Suits against insurance companies. Suits against fire, marine or inland insurance companies may be commenced in any county in which any part of the insured prop- erty was situated; and suits against life and accident insurance companies or associations may also be commenced in the county in which the persons insured, or any of them, resided at the time of such death or injury. 5 Suits may be instituted and prosecuted against any life or health insurance company in any county where loss has occurred, or where the policy-holder instituting such suit resides. 6 249. When a river, etc., is a county boundary. In all cases where any part of a river, water-course, highway, road or street shall be the boundary line between two counties, the several courts of each of said counties shall have concurrent juris- diction in all cases over such parts of said river, water-course, high- way, road or street as shall be the boundary of such county, in the same manner as if such parts of said river, water-course, highway, road or street were within the body of such county. 7 1 R. S. 1194, exception 25; Acts 1887, p. 181. 2 Bradstreet Co. v. Gill, 72 T. 115 (9 S. W. Rep. 753). 3 St. L., A. & T. Ry. Co. v. \Vhitloy, 77 f. 126 (13 S. W. Rep. 853). A foreign corporation, having its principal office in D. county, made a contract with per- sons residing in C. county to loan money exclusively through them on lands situated in their county. The contract was made in C. county, and provided that the corporation should send an agent there to examine the lands to be offered for loans. Being sued in C. county for breach of such contract, in mak- ing loans on lands there through other persons, the corporation pleaded its priv- ilege to be sued in D. county; and it was held that the cause of action must be deemed to have arisen, at least in part, in C. county, and that the suit was maintainable there. Equitable Mortgage Co. v. Weddington, 2 Civ. App. 373 (21 S. W. Rep. 576). A non-resident of the state may sue a foreign insurance com- pany doing business in the state in a county in which the company has an agent. Mut L. Ins. Co. of N. Y. v. Nichols, 24 S. W. Rep. 910. Shane v. Mex. Int. Ry. Co., 28 S. W. Rep. 456 (8 Civ. App. 441). 6 R. S. 1194, exception 26; Act 1874 R. S. 3070; Act 1874; Atlantic Ins. Co. v. Sinker, Davis & Co., 1 App. C. C., 954. 7R.S. 1195. 250,251.] rovui "F A< M. 279 250. Contested elections. Contested elections for the office of district attorney must be tried by the district judire of the district in the county where the candidate who has received the certificate of election resides; and if there are two district judges in said county, then before either of said judges. Contested elections for the office of district judge " shall be tried in the county of the adjoining district the county seat of which is nearest to the residence of the candidate "who shall have received the certificate of election, and by the district court of such adjoin- ing district ; and in counties having two or more district courts, then to be tried by the district court of the adjoining district in said county." Contested elections for the office of chief justice or associate jus- tice of the supreme court and judges of the court of criminal ap- peals "shall be tried in the county and by the district court of the district, or one of them, in which the seat of government is located." Contested elections for the office of chief justice of the court of civil appeals or associate justice of any supreme judicial district in the state " shall be tried by the district court, or either of them if there are more than one, in the county where said court of civil appeals has its sittings." Contested elections for any county office " shall be tried by the district court in the county where the election was held. If there are two such courts, then to be tried by either of them." Contested elections for other purposes than the election of offi- cers "shall be tried by the district court in the county where the election was held, or either of them, if there is more than one such court." l The constitutional amendment of 1891 conferred on the district courts jurisdiction of contested elections. 2 Before the adoption of tin- amendment, the decisions were to the effect that the legislature had no power to confer jurisdiction on the district courts in such cases. 3 251. Actions against and to appoint receivers. Actions may be brought against the receiver of the property i>f any prison where said person resides. Actions may be brought against receivers of a corporation in the county where the prin- cipal office of the corporation may be located, and against receivers of railroad companies in any county through or into which the road > R a 1793-1797; Acts 1895, p. 58. 2 Const, art. V, g 8. 'Gibson v. T. mpl, t..n. <.. I . Kx parteTowles, 48T. 413; City of Ft. \V,.i th v. Dsivis. 57 T. '.'.->: state v. Owens, 63 T. 261. See Odell v. Wharton, 87 T. 173 W. Rep. 123); Cobb v. Cohron, 26 S. W. Rep. 846. 280 VENUE OF ACTIONS. [ 252. is constructed; and service of summons may be had upon the re- ceiver, or upon the general or division superintendent of the road, or upon any agent of said receiver who resides in the county in which the suit is brought. If the property sought to be placed in the hands of a receiver is a corporation whose property lies within this state, or partly within this state, then the action to have a receiver appointed must be brought in this state in the county where the principal office of the corporation is located. 1 Suits against any assignee, trustee or receiver, operating a rail- way, may be brought in any county through or into which the railway extends or is operated. 3 The act for the appointment of receivers, above quoted, was in- tended to confer upon corporations the privilege of having suits for the appointment of receivers of their property instituted in the counties of their principal offices, and does not deprive courts of other counties of the power to make the appointment in the event the corporation fails to plead its privilege. And where a receiver is appointed without objection, he will hold the property as against a receiver subsequently appointed in the county in which the cor- poration has its principal office. 3 An action for damages for injuries resulting in a death may be brought against a receiver in charge of the railway in a county in which the company has an office and agent. 4 252. Plea of personal privilege may be waived; how tried. The right of a defendant to be sued in a particular county is per- sonal and may be waived. If he wishes to assert his privilege, it must be done by plea in abatement, filed in due order of pleading, and verified. 8 When the fact does not appear on the face of the petition that the defendant is sued in the wrong county, he must raise the question of his right by plea in abatement; when it does so appear, he may avail himself of the privilege by special demurrer. Jurisdiction as to the subject-matter must be determined in the first instance by the petition, and where its allegations show a case within the power of the court to decide, the suit will be entertained, R. S. 1484, 1488; Acts 1887, p. 119. 2 R. S. 1194, exception 2& Bonner v. Hearn, 75 T. 242 (12 S. W. Rep. 38). 4 Brown v. Gay, 76 T. 444 (13 S. W. Rep. 472). 5 Whittaker v. Wallace. 2 App. C. C., 559; Walker v. Stroud, 6 S. W. Rep. 202: Spicer v. Taylor, 21 S. W. Rep. 314; Fairbanks v. Blum, 2 Civ. App. 479 (21 S. W. Rep. 1009); Watson v. Baker, 67 T. 48 (2 8. W. Rep. 375). See Texas Pleading (1893), 424. Mast-rson v. Cundiff, 58 T. 472; Fairbanks v. Blum, 2 Civ. App. 479 (21 S. W. Rep. 1009). 2.J NTE OF ACTIONS. L'^l unless it >ul>M-'|iit->ntly appear that the jurisdiotional fa fraudulently alleged for the solo purpose of conferring the jurisdic- tion. But when the evidence shows clearly that the court has no power to determine the real case developed (notwithstanding the petition may be good upon its face), and that the jurisdictional alle- fraudulently inserted, the court will dismiss on its own motion. But if the evidence merely shows that the court has no jurisdiction over the person of the defendant, this is not the rule. Wh-n he is sued out of the county of his residence, and the plaintiff fraudulently alleges facts which would bring the case under one of the exceptions to the general rule laid down in the statute, he must plead in I'liu'me to the jurisdiction of the court, and must in his pica set forth the true facts of the case, and allege the fraudulent pur- pose of the petition. 1 The plea must be sworn to, unless the truth of the facts alleged appears of record. 2 It may be tiled either in proper person or by attorney. 1 The plea of privilege is waived by answering to the merits. 4 This rule will not be relaxed in favor of an administrator //< lonii />n or an heir, whose predecessor in administration, or ancestor, had waived the right by answering to the merits.* But it is not waived when the pleas are filed in due order, 8 unless defendant goes to trial without asking the action of the court on his plea. 7 The rule is that the plea must be presented at the term it is tiled. 8 And where a party tiled a plea to the jurisdiction, and during the same term procured a continuance, and the court at the next term refused to recognize the plea, it was held there was no error. 9 It has been held that the plea is waived by consenting to a continuance; 10 but a contrary rule is recognized in other oases, 11 especially when there is no other defense filed in the cause. 1 * i Watson v. Baker. 67 T. 48 (2 a W. Rep. 375); Life Ins. Co. v. Ray, 50 T. '! 1 ; Pool v. Pickett. 8 T. K'2. ^R S. 1265: Turman v. Robertson, 8 App. C. C., g 215; Taylor v. Hall. 2o T. 811; Wils.,i. v. Adams, 15 T. 323; Keabadour v. Wt-ir. Ju T. 854; Hi^gius \ erii-k, *J T Richardson v. Wells, 3 T. 224: R. a 5. -tout- Nat. Bank v. Hinchruan, 3 App. C. C., 375; Engel v. Brown, 1 ,\\<\>. C. C., 803. J Russell v. Tex. & Pao. Ry. Co., 68 T. 648 (5 9. W. R.-p. 080). Equitat '... v. \V,.,i,Ungton, 2 Civ. \\>\>. :}7:i r-'l S. W. R.-|>. :,TG), cit- ing St. L. # A. T. Uy. 0.. v. \Vlutley, 77 T. 1^5 .!={ S. \V. Hop. *:>:ji, ami Kiiiiliinj? York v. State, 73 T. 651 (11 a W. Rep. 869). i Watson v. Baker, 67 T. 48 (2 a W. Rep. 875). Green v. Brown. 4 App. C. C., g 162, 9 Peveler v. Peveler. 54 T. 53. ' -Donald v, Blount, 2 App. C. C., 344; Kelso v. Adams, 2 U. C. 374. Bergstrom v. Hum-*. 24 a W. Rep. 1038, 12 Howetb v. Clark, 4 App. C. C, g 314. 282 VENUE OF ACTIONS. [ 252. The plea is waived by submitting a motion to quash the service of citation, 1 but not by appearance to move to set aside a default, for the reason that defendant was not served with citation. Such an appearance is an appearance to the next term, and a plea then filed in due order is in time. 2 It is waived by filing a cross-bill against the plaintiff. 3 The defendant is entitled to a jury to pass upon the facts raised by his plea. 4 And where he alleges that he resides in a county other than the one in which suit is brought, the burden is on him to prove it. 5 1 Carothers v. Johnson, 4 App. C. C., 263. 2 A., T. & S. F. Ry. Co. v. Adams, 4 App. C. C., 12. Slater v. Trostel. 21 S. W. Rep. 285. Howeth v. Clark, 4 App. C. C., 315; Taylor v. Hall, 20 T. 211; Robertson v. Ephraim, 18 T. 118; Gouhenant v. Anderson, 20 T. 459; Kelso v. Adams, 2 U. C. 874. 5 Kelso v. Adams, 2 U. C. 374; Robertson v. Ephraim, 18 T. 118. As to the nat- ure and requisites of the plea of personal privilege, see Sayles' Texas Pleading, 424. CHAPTER XL INSTITUTION AND DOCKETING OF SUIT& 253. How suit commenced. J">4. Indorsing and docketing. 255. File docket, how kept. 356. Court and bar dockets. Indexing names of parties. 258. Not to be commenced on Sunday or on a holiday. 259. Filing papers. 260. Suits against counties. 261. Contract limiting time within which to sue. 262. Stipulation in contract as to no- tice of claim for damages. 253. How suit commenced. All civil suits in the district and county courts are commenced by petition tiled in the office of the clerk of the court. 1 When the pe- tition is filed with the clerk, and all other regulations complied with, it is his duty forthwith to issue a citation for the defendant. 2 In- junction proceedings are instituted by presenting a petition for the injunction to the judge of the court, and the injunction issues upon the order of the judge indorsed on or attached to the petition.* A proceeding by quo warranto is begun, by the attorney -general, or by the district or county attorney of the proper county or district, by presenting a petition to the district court, asking leave to file an in- formation in the nature of a quo warranto in the name of the state. 1 In the early cases it is held that the statute of limitations runs after filing the petition until leading process issues; 5 and where plaintiff filed his petition and instructed the clerk not to issue a cita- tion until directed, the suit was not commenced so as to arrest the running of the statute. 6 The mere filing of a petition does not fix the liability of an indorser where the process is suppressed. 7 The rulings in the later cases lead to the conclusion that the filing of the petition is sufficient to stop the running of the statute; 8 and in one case, at least, it is so held. The court say: " In this state the filing of the petition in the district court is the commencement of salt and stops the running of the statute of limitations," citing the arii- 2R.S. 1212. 'R.S.2992, 299a R & 4343. Keeble v. Bailey, 8 T. 492; Kinney v. Lee, 10 T. 155. " Maddox v. Humphrey, 30 T. 494; Veramendi v. Hutchins, 48 T. 531. 7 Hoffman v. Cage, 81 T. 595. 8 McManus v. Wallis, 52 T. 534 INSTITUTION AND DOCKETING OF SUITS. [. 254250. cle of the statute standing at the head of this section ; and it is held that a delay in issuing citation, unless at the instance of the plaint- iff, would not keep the statute in operation; that it would not be presumed that plaintiif ordered a delay. 1 But there must be a lona fide intention on the part of plaintiff that process shall be served at once upon the defendant. This is announced as the rule of the ele- mentary writers and, practically, the rule of the supreme court. 2 254. Indorsing and docketing. When a petition is filed with the clerk, it is his duty to indorse thereon the day on which it was filed and the number of the suit, and he shall enter the suit in a docket to be kept by him for that purpose, to be called the clerk's file docket. 3 A garnishment pro- ceeding is docketed in the name of the plaintiff as plaintiff, and in the name of the garnishee as defendant. 4 A proceeding to try the right of property is docketed in the name of the plaintiff in the writ as the plaintiff, and of the claimant as defendant. 5 255. File docket, how kept. The clerk's file docket must be so kept as to show in a convenient form the number of the suit, the names of the attorneys, the names of the several parties to the suit, and the object thereof, and in a brief form the return on the process made by the sheriff or con- stable, and all the subsequent proceedings had in the case, specify- ing the time when they were had. 6 256. Court and bar dockets. The clerks of the district and county courts are required to keep a court docket in a well-bound book, ruled into columns, in which Tribby v. Wokee, 74 T. 142 (10 S. W. Rep. 1089). In Bates v. Smith. 80 T. 242 (16 S. W. Rep. 47), the plaintiff filed his petition upon a promissory note De- cember 31, 1887. The note sued on was due January 2, 1884. Citation did not issue until January 30. 1888. The finding of the court was that just before the filing of the petition "negotiations were pending between plaintiffs and defend- ant for the settlement of the note, but that plaintiffs, to prevent the bar of the statute, filed the petition, instructing the clerk not to issue citation, as settle- ment was pending and there might be no necessity for citation: that the cita- tion was in fact issued after the expiration of four years, and after the failure of the negotiations." The conclusion of law by the court that the note was not barred wag error. ^Ricker v. Shoemaker, 81 T. 22 (16 S. W. Rep. 645). And see White v. Holley, 8 Civ. App. 590 (24 S. W. Rep. 831); I. & G. N. Ry, Co. v. McCulloch, 24 S. W. Rep. 1101; G., H. & S. A. Ry. Co. v. Cook, 25 S. W. Rep. 455; Davis v. Andrews, 27 S. W. Rep. 1033; Longino v, Ward, 1 App. C, C,, 521; Breraond v, Johnson, i App. C. C., 609, 3 R. a 1178, R. 8. 220. R. a 5296, 6 R. 8,1179. IXSTHTTIiiX AXI> DOCKKTIN'O OF 8CIT8. they must enter, in lliefrat column, the number of case and names of attorneys; in the second, the names of the parties; in the ' the nature of the action; in l\\c fourth, the pleas; in the fifth, rul- f former terms; in the sixth, the motions and rulings of the :it term. 9BB must be placed on the docket as they are filed. The clerk must, at each term, make out t\vo copies of this docket, one for the use of the court and one for the use of the bar. In prepar- ing the court docket, it is the duty of the clerk to designate the suits L'ular consecutive numbers, called file numbers, and to mark on each paper in every case the file number of the cause. In every appealed to a court of civil appeals, the clerk, in making up the docket at each succeeding tenn, must keep the cause in its proper place on the docket for disposition after being decided ; and at the next term after issuing a writ of error, he must replace the cause on the docket, with its original file number. 1 257. Indexing names of parties. It is the duty of the several clerks of the district and county courts to provide and keep in their respective offices, as part of the records thereof, full and complete alphabetical indexes of the names of the parties to all suits filed in their courts. These indexes must be kept in well-bound books, and must state in full the names of all the parties to such suits, which are to be indexed and cross-indexed, so as to show the name of each party under the proper letter; and a reference must be made opposite each name to the page of the minute book upon which is entered the judgment in each case. 2 .*58. Not to be commenced on Sunday or on a holiday. N" civil suit shall be commenced, nor shall any process be issued or served, on Sunday or on any legal holiday, except in cases of injunction, attachment or sequestration. 3 The 1st day of January, the 22d day of February, the 2d day of March, the 21st day of April, the 4th day of July, the first Monday in September, and the JMh day of December, of each year, and all days appointed by the lent of the United States, or by the governor, as days of fast- ing or thanksgiving, and every day on which an ebction is held throughout the state, are declared holidays on which all the public offices of the state may be closed, and are treated and considered as Sunday, or the Christian Sabbath, for all purposes regarding the nting for payment or acceptance and of protesting for and giving notice of the dishonor of bills of exchange, bank checks, and Rules 70-83. 2R. S. 1094, 1147. 3 R S. 1180. 286 INSTITUTION AND DOCKETING- OF SUITS. [ 259. promissory notes placed by the law upon the footing of bills of ex- change. 1 The statute does not require the public offices of the state to be closed on legal holidays, nor prohibit the courts from transacting business. In enumerating what is forbidden to be done on a holi- day, and leaving the performance of other things discretionary, it is manifest that judicial acts, not specially prohibited, which are performed on that day, are not void. It is too late to object for the first time in the appellate court to the fact that a writ of inquiry was executed in the district court on a legal holiday, and on which writ a judgment was afterwards rendered. If the objection were good it should have been made in tho court below, to set aside the proceedings for irregularity. 2 The statute refers to such process as may be required in the com- mencement of a suit, and in cases of injunction, attachment and sequestration. The issuance and service of process on Sunday is, at common law, invalid; the statute declares the common law and, by exception, modifies it. Holidays have only the sanctity attached to them by statute, and all business may be transacted on them ex- cept what is expressly forbidden. The words " any civil process," in the statute, are broad enough to cover executions, but the chapter limits the language to process pertaining to the commencement of suits. No such prohibition is found in the chapter on executions or on that on legal holidays, and it was held that an objection to the return on an execution and to a sheriff's deed, on the ground that they showed that the execution sale was made on a holiday, was properly overruled. 3 An objection on the ground that a petition was filed on a legal holiday is waived by the defendant's filing a general demurrer and a general denial. 4 259. Filing papers. No paper is considered as filed in the proceedings of any cause, unless the clerk shall have indorsed thereon the day on which it was filed, and have signed his name officially thereto. 5 It seems i R. 8. 2939. The above article is 2835 of the Revised Statutes of 1879. The first Monday of September was made a holiday by the act of 1893. Articles 2836 and 2837 of the Revised Statutes of 1879 appear to have been omittad from the revision of 1895. They read as follows: "All the exemptions and require- ments usual on legal holidays may be observed on the days above named." "If any of the days named shall occur on Sunday, the next day thereafter shall be observed as a holiday; but bills of exchange or other paper may be presented for payment or acceptance on the Saturday preceding such holiday and pro- ceeded on accordingly." See Sayles' Civ. Stat., arts, 2836, 2837. 2H., E. & W. T. Ry. Co. v. Harding, 63 T. 162. 3 Crabtree v. Whitesell, 65 T. 111. 4 Ullman v. Verne, 4 S. W. Rep. 54& 5 R. & 1449. 0.] INSTITUTION* AND DOCKETING OF Si that the courts will take notice of facts and circumstances in a case, le from any file-mark by the clerk, to ascertain that a paper was in fact tiled, that is, deposited, in the proper place; and it is held that an objection to a paper for want of a file-mark, which has obviously been placed in the custody of the clerk and acted upon by the court below, comes too late when urged for the first time in the appellate court. 1 A paper is deemed filed in a cause when placed in the custody of the court, whatever the date indorsed by the clerk. 1 To file a paper is simply to place it in the official custody of the clerk, and it is the duty of the clerk to indorse upon it the date of its reception. If he neglects this duty it will not' prejudice the rights of the party, and the indorsement may be made nunc pro tune* A motion handed to a clerk, and by him marked " filed," with his official signature, is properly liled, al- though the clerk at the time was not in his office. 4 If a party cause the clerk to indorse a paper " filed," and imme- diately withdraws it from the custody of the clerk and from the inspection of the opposite party and the court, the paper will not be considered as having been filed in contemplation of law. 5 After pleadings have been filed they cannot be withdrawn even by per- mission of the court, without consent of both parties. 8 Pleas are not considered filed unless the clerk indorse thereon the date of filing and sign his name thereto. 7 Where several defendants were all served with process, and the judgment recited that the parties appeared, the presumption was that the want of the indorsement of the filing of the answer of one of the defendants was a clerical omission. 8 Where a defendant voluntarily produces a deed, and it is used in evidence by plaintiff, but without being marked " filed," it is not error, on a second trial of the case, to compel defendant to produce the deed.' 260. Suits against counties. No county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners' court for allowance, and such court shall have neglected or refused 1 Eggenberger v. Brandenberger, 74 T. 274 (11 a W. Rep. 1099); Knight v. Hollo- man, 6 T. 158. *Lessing v. Gilbert, 8 Civ. App. 174 (87 a W. Rep. 751); Deal v. Alexander, 6 T. 531 ; Holman v. Chevallier, 14 T. 337. ' Slocumb v. State, 11 T. 15; Holman v. Chevallier, 14 T. 387. Hammock v. May, 38 T. 196. Beal v. Alexander, 6 T. 53L Coles v. Perry, 7 T. 109. " Love v. Mclntyre, 3 T. 10. 8 Callison v. Autry, 4 T. 371. "Boothe v. Feist, 19 & W. Rep. 39a 2S8 INSTITUTION AND DOCKETING OF SUITS. [ 201, 262. to audit and allow the same, or any part thereof. 1 A claim for dam- ages against a county for a trespass on lands should be pr;s3nted to the commissioners' court for allowance before suit. 2 The presenta- tion of the claim as required is indispensable, and the petition is demurrable if it fails to allege the presentation and disallowance. 3 261. Contract limiting time within which to sue. It is unlawful for any person, firm, corporation, association or combination of whatsoever kind to enter into any stipulation, con- tract or agreement by reason whereof the time in which to sue thereon is limited to a shorter period than two years. And no stipulation, contract or agreement for any such shorter limitation in which to sue shall ever be valid in this state. 4 262. Stipulation in contract as to notice of cla.m for damages. No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon is valid unless such stipulation is reasonable; and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days is void. When such notice is re- quired it may be given to the nearest or any other convenient local agent of the company requiring the same. In any suit brought under this act it will be presumed that notice has been given unless the want of notice is specially pleaded under oath. 5 i R. S. 790. Norwood v. Gonzales Co., 79 T. 218 (14 S. W. Rep. 1057). a Hohraan v. Comal Co., 34 T. 36. R. S. 3378; Acts 1891, p. 20. The cases decided without the aid of this stat- ute were generally to the effect that a stipulation limiting the time of bringing suit, or within which to give notice of a claim for damages, was valid if reason- able under the circumstances. McCarty v. Railway Co., 79 T. 33 (15 S. W. Rep. 164); G., C. & S. F. Ry. Co. v. Trawick, 80 T. 270 (15 S. W. Rep. 568; 18 S. W. Rep. 948); T. & P. Ry. Co. v. Klepper, 24 S. W. Rep. 567; G., C. & S. F. Ry. Co. v. Wilbanks, 7 Civ. App. 489 (27 S. W. Rep. 303); G., C. & S. F. Ry. Co. v. Trawick, 68 T. 314 (4 S. W. Rep. 567); G., C. & S. F. Ry. Co. v. Gate wood, 79 T. 89 (14 S. W. Rep. 913); G., C. & S. F. Ry. Co. v. Williams, 4 Civ. App. 294 (23 S. W. Rep. 626); G., C. & 8. F. Ry. Co. v. Clarke, 5 Civ. App. 547 (24 S. W. Rep. 355): G., H. & S. A. Ry. Co. v. Silegman, 23 S. W. Rep. 298; G.. C. & S. F. Ry. Co. v. Hume, 6 Civ. App. 653 (24 S. W. Rep. 915); Same v. Elliott, 26 S. W. Rep. 636; G., H. & S. A. Ry. Co. v. House, 4 Civ. App. 263 (23 S. W. Rep. 332): Same v. Kelley, 26 S. W. Rep. 470; H. & T. C. Ry. Co. v. Hester, 2 U. C. 296; G., H. & S. A. Ry. Co. v. Ball, 80 T. 602 (16 S. W. Rep. 441); G., C. & S. F. Ry. Co. v. McCarty, 83 T. 608 (18 S. W. Rep. 716); Ma Pac. Ry. Co. v. Harris. 67 T. 166 (2 S. W. Rep. 574); Ft. W. & D. C. Ry. Co. v. Greathouse, 82 T. 204 (17 S. W. Rep. 834); Mo. Pac. Ry. Co. v. Childers, 1 Civ. App. 302 (21 S. W. Rep. 76); G., C. & S. F. Ry. Co. v. Wright, 1 Civ. App. 402 (21 S. W. Rep. 80); Mo. Pac. Ry. Co. v. Paine, 1 Civ. App. 621 (21 S. W. Rep. 78): St., L. A. & T. Ry. Co. v. Turner, 1 Civ. App. 625 (20 S. W. Rep. 1008); I. & G. N. Ry. Co. v. Garrett, 5 Civ. App. 540 (24 S. W. Rep. 354); Pac. Exp. Co. v. Darnell, fi S. W. Rep. 765; Good v. G., H. & S. A. Ry. Co., 11 S. W. Rep. 854; G., H. & S. A. Ry. Co. v. Short, 25 S. W. Rep. 142; G., H. & S. A. Ry. Co. v. Williams, 25 S. W. Rep. 311, 1019. R S. 3379; Acts 1891, p. 20. See note to next preceding section. CHAPTER XII. OF CITATION BY PERSONAL SERVICE. Must issue forthwith. 364 One to each county. 365. Contents of citation. 266. The officer to whom issued. 267. Must be directed to the proper county. 268. Must state nature of demand. 269. Mu^t state the names of all the parties. 270.. Certainty as to the names of par- ties. 271. Date of filing and file number. .'. Must be under seal, dated and tested. t, M ust state time and place of ap- pearance. ;. Style of process. When returnable. 276. Defendant out of county; copy of petition to accompany cita- tion. J77. Sheriff or clerk a party to the suit 278. Service by deputy sheriff. '. Duty of officer as to indorsement, execution and return. 280. Service within the county. 281. Service in suits against counties. 282. Service on cities, towns, etc. 283. Service on incorporated com- panies and receivers. 284 Life and health insurance com* panics. 285. Service on foreign corporations. 286. Service upon a firm. :>?. Return of citation. 288. Return not served. 289. Alias process. 290. Time of service of citation. 291. Notice to absent or non-resident defendants. 292. Amendment of citation. 293. Mistake in return. 2'.4. Acceptance of service. 295. Entering appearance in open court. 296. Answer is appearance. 297. Quashing citation on motion. 298. No new citation in case of re- versal on appeal. 299. No judgment without service. 300. Objections to citation, service and return. 301. False return. ?; 263. Must issue forthwith. When u petition has been tiled with the clerk, and the other reg- ulations prescribed by statute have been complied with, it is his duty to issue forthwith a writ of citation for the defendant. 1 "Where suit is allowed by legislative act against the state, and no mode of serviee is j )! -scribed, service uoon the governor or on the attorney - general is sufficient. 2 1 R S. 1212. It has been held that a prayer for citation is not necessary. Sun Mut. Ins. Co. v. Hollan.l. >' .\\<\>. r. Q, ;; M& See Lauderdale v. Stationery Co., T. 496. 2 State v. Cook, 57 T. 205; State v. Steele, 57 T. 200. II 290 CITATION BY PERSONAL SERVICE. [ 264-207. 264. One to each county. If there be several defendants, residing in different counties, one citation must issue to each of such counties. 1 265. Contents of citation. The citation must be directed to the sheriff or any constable of the county where the defendant is alleged to reside, or be, and must command him to summon the defendant to appear and answer the plaintiff's petition, at the next regular term of the court, stating the time and place of holding the same. It must state the date of the filing of the plaintiff's petition, the file number of the suit, the names of all the parties, and the nature of the plaintiff's de- mand. 2 The style must be " The State of Texas; " it must be made returnable on the first day of the next term of the court after the issuance thereof; and must be dated and tested by the clerk with the seal of the court impressed thereon, and the date of its issuance must be noted thereon. 3 266. The officer to whom issued. The citation must be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be. 4 An original citation to any other county is not authorized. 5 It was held not fatal to a writ that it was directed to the sheriff, and not to " the sheriff or any constable " of the proper county. 6 267. Must be directed to the proper county. The citation must be directed to the proper officer of the county where the defendant is alleged to reside or be. 7 A citation directed to an officer of one county cannot be legally served by an officer of a different county ; 8 and a citation which does not name the county cannot be lawfully served in any county. If it is directed to the proper officers of B. county simply, service by the sheriff of Bexar county is void. 9 The citation can issue only to the county in which the defendant is alleged to reside ; if he absent himself from that county, so that process cannot be served upon him, but not under circumstances that would authorize an attachment, the proper prac- tice is to file a supplemental petition, alleging his absence, and stat- 1R S. 1213; Raymond v. Holmes, 11 T. 54. 2 R S. 1214. R S. 1447. 4 R S. 1214. 6 Lauderdale v. Ennis Stationery Co., 80 T. 496. Carroll v. Peck, 31 T. 649. 7 R S. 1214. 8 Witt v. Kaufman, 25 T. Sup. 384. But it is held that the judgment is only voidable. Jones T. Lasater, 2 U. C. 435. >G., H. & S. A. Ey. Co. v. McTiegue, 1 App. C. C., 458; Wadley v. Johnson, 2 TJ. C. 739. 268.] CITATION BY PERSONAL SERVICE. 1' ' 1 ing the county in which he is temporarily to be found, and the clerk may then direct a citation to that county. 1 268. Must state nature of demand. The citation must state the nature of plaintiff's demand. 2 Where the suit is on a draft, a citation which terms it a bill of exchange, stating date, amount, and to whom payable, is sufficient.* It is required to state correctly and substantially the nature of the de- mand. 4 The statute does not require a detailed and specific statement of the grounds of plaintiff's action, but only a statement of " the nat- ure"- the character or controlling characteristics of the plaint- iff's demand. A mere misdescription in some detail of the terms of an instrument of writing sued on, such as a promissory note, if the same is not of a character to mislead the defendant into sup- ] '"sing that the plaintiff's demand is of a different character than that which may be rationally inferred from the citation, will not have the effect to vitiate the service. 5 It was not intended that the 1 Duer v. Endres, 1 App. C. C., g 322; Bean v. McQuiddy, 1 App. C. C., 52; Taylor v. Pridgen, 3 App. C. C., 87. Where the petition alleged that one defendant i"d in A. county and the other in C. county, the county of the venue, and tlu- process was directed to the sheriff of C. county, a return of service on both defendants was held good. Saunders v. Gilmer, 8 T. 295. Suit was brought against two defendants, both of whom were alleged to reside in Red River county, and process against both was addressed to that county, but was served only on one. It was held that service by the sheriff of another county, on the defendant not served, of process from Red River county, directed to him for that purpose, was a nullity. Ward v. Latimer. 2 T. 245. See 289. infra, on alias process. Under allegations in the petition that two of the defendants resided in Burle- son county (suit tiled in Lampasas district court), it was the duty of the clerk to issue the citation for both of said defendants to that county, and he was not authorized to din-el the original citation for either of them to any other place. Lauderdale v. Knnis Stationery Co., 80 T. 496 (16 S. W. Rep. 308). One defendant* alleged to be a resident of Hill county. Imt wastem]M>rarily in Grant county, territory of New Mexico. Citation was issued to the sheritfof Mitchell county in t instance, without having issued citation either to Hill county or Grant omnty. NYw M.-xico. and was served by the sheritf of Mitchell county, by de- livcini- a copyof the writ only. This was held sufficient. Sanders v. City Nat. Hank. 12S. W. Rep. 110. .'14. H., K. iV \V. Tex. Ry. Co. v. Erving. 2 App. C. C., g 1W < 1 & G. N. Ry. Co. v. Pape, 1 App. C. uin v. Kaufman, 62 T. 543. In this case the nature of the demand was stated thus: Plaintiffs allege that on the 14th January, 1878, the defendant. H. S. Pip- kin, executed to S. B. Leach his promissory note for $1,960, due and payable on Nt day of January, 1878, bearing interest, payable annually, at the rate of per cent per annum from date. Said note being given in part payment of the purchase-money of and retaining a vendor's lien on the following described land" (describing it). Tin- note was, in fact, payable on th-- 1-t -lay of January, 1882. It was held that the nature of the demand was sufficiently stated, and that the clerical error as to the date of maturity of the note was not material Judgment was rendered by default on a promissory note. The petition as- *>92 CITATION BY PERSONAL SERVICE. [ 269. statement in the citation should supply the place of the petition. A general statement notifying defendant of the character of plaint- iff's demand, and avoiding any attempt at detail, is sufficient. 1 It is sufficient to set forth plainly the nature of the complaint and the relief sought. 2 An accurate description of the grounds of the ac- tion or the instrument sued on is not required. 3 269. Must state the names of all the parties. The citation must state the names of all the parties, 4 including the defendants. 5 If a citation is defective in this particular it will not support a judgment by default, and the defendant may avail him- self of the invalidity on error. 6 "Where two or more persons sue as partners, it is sufficient, all other requisites of the process being complied with, if the citation states the firm name, without further description of the plaintiffs, their individual names being stated in the petition; this is held in view of -the change in the law which dispenses with the delivery of serted a claim for protest fees, and the citations, which were not accompanied with copies of the petition, notified defendants that protest had been made. Judgment including protest fees was held proper. Sanders v. City Nat. Bank, 12 S. W. Rep. 110. Suit was brought on two drafts, one of which was due four mouths after date. The petition and original citation described both drafts ac- curately, but the copy of citation served upon defendant described the four months' draft as due in five months after date. This variance was held imma- terial, and would not have been fatal if it had occurred in the original citation. Jensen v. Hays, 2 App. C. C., 566. A statement that the suit is on a note, of a particular date, payable at a par- ticular time, for a particular amount, and that one of the defendants is an indorser, sufficiently states the nature of the demand. Hunt v. Wiley, 1 App. C. C., 1214. 1 H. & T. C. Ry. Co. v. Burke, 55 T. 323. 2 Schrarnm v. Gentry, 64 T. 143. 'Loungeway v. Hale, 73 T. 495 (11 S. W. Rep. 537). That the action is on a promissory note for an amount stated, with interest at a certain rate, giving the date, and to foreclose a mortgage on fifty-six acres of land out of the Grayson county school lands in Wise county, Texas, being a portion (instead of a certain quarter section) of section 19 of said subdivision of Grayson county school lands, is sufficient. And see, also, Hinzie v. Kempner, 82 T. 617 (18 S. W. Rep. 659). Plaint- iff sued to recover certain land, making his grantor a party, alleging that the grantor conveyed to him with covenants of general warranty, and praying that in the event his title failed in the suit he have judgment against his grantor for the purchase-money, with interest. The citation stated the nature of the de- mand to be for the title and possession of the lots described, for $500 damages, and for costs and general relief. While this was sufficient as to the princi- pal defendants, it was not sufficient to apprise the grantor of the nature of the relief sought against him. Miles v. Kinney, 8 S. W. Rep. 542. * R. S. 1214; Bell v. Van Zandt, 53 T. 150; Little v. Marler, 8 T. 107; Owsley v. Bank, 1 U. C. 93. 8 Burleson v. Henderson, 4 T. 49. Portwood v. Wilburn, 33 T. 713; Crosby v. Lum, 35 T. 41; Norvell v. Garth- waite, 25 T. 583; Heath v. Fraley, 50 T. 209; Rodgersv. Green, 33 T. 661. A cita- tion requiring the defendant to answer the petition of John W. Fraley " and wife " is insufficient Heath v. Fraley, 50 T. 209. 270.] CITATION* BY PERSONAL SERVICE. a copy of the petition in some cases. The omission to state the firm mime in the petition in such a case is a point on the pleadings, and not a defect in the process. 1 27O. Certainty as to names of parties. urn of service on " Mrs. Brown" for Parmelia Brown is not sufficient; or on J. N. H. for J. TV. H. ; or on W. Booth for J. W. ii; 4 or on Cawhart for Carhart; 5 or on Favers for Faver; 6 or ni I In > w for Brown. 7 Service on Townsen will support a judgment by default against Townsend. 8 1 Putnam v. Wheeler, 65 T. 522; Andrews v. Ennis. 16 T. 46; Dikes v. Munroe, 15 T. 236; Graves v. Drane. 66 T. 658: De Walt v. Zeigler, 29 S. W. Rep. 60. A variance as to the names of the plaintiffs, in the copy of the petition and cita- tion, from the original petition and citation, is a matter of substance, of which, if not corrected, the defendant may avail himself, by plea in abatement. Mi-x- ner v. Siter. 23 T. 621. When the petition was against U. S. Cummings and the citation was issued to and served upon Uriah Cummings, it was held that the variance between the petition and writ was immaterial. Cummings v. Rice, 9 Where the petition was in the name of Hugh William Monroe and John Mon- roe, trading under the firm and style of Monroe & Bro.. and the citation stated the name of the plaintiffs as Monroe and Brother, it was held that the citation was sufficient. Dikes v. Monroe, 15 T. 236. Where the names of the defendants stated in the petition were J. B. C., G. H. R, and Sampson Christie, and the citation was issued to summon " Sampson " to answer the complaint, etc., wherein the said J. H. G. is plaintiff, and the said J. B. C., G. H. R. and Sampson (omitting the surname) were defendants, and the sheriff returned the citation served on the defendant Sampson Christie, it was said that the process was not void, but only defective; that it was sufficient to bring the said defendant into court, and the objection must be made by plea in abatement or by exception; that the defect could be cured by amendment; and if the defendant fails to make his exception at the proper time, or permit judg- ment to go by default, he catrnot afterwards be heard to urge it, either in the tli-tnct court or on error. Grain v. Griffis, 14 T. 358. The petition stated " J. T. Craig, assignee of C. W. Israel and J. N. Israel & Co., . . . complaining of," etc. The citation served on the defendants des- ignated the plaintiff as " J. T. Craig, assignee of C. W. Israel & Co." It was held there was no material variation, as plaintiff did not sue as assignee, Maddox v. 80 T. 600 (16 S. W. Rep. 328). In a suit on a liquor-dealer's bond, instituted by the county or district attor- ney, where the petition alleges that the suit is brought " on behalf of and in the name of the state for the use and benefit of the county of R.." tlu- Citation prop- erly states that the state is plaintiff, and that the party sued (naming himi is defendant Drake v. Si \V. Rep. 398. Where two parties to a note are sued, the third one being dead, and therefore not made a party, the latter need not be mentioned in the citation. Hunt v. Wil.-y. 1 App.C. C.. ; 1-214. Brown v. Robertson, 28 T. 555. Hendon v. Pugh, 46 T. 'J1, 1 . Booth v. Holmes, 2 U. C. -' 'Carhart v. Britt, 3 App. C. C.. g 373. Faver v. Robinson. 46 T. :M4: Booth v. Holmes, 2 U. C. 282, 7 Brown v. Marqueze. 30 T. 77. 8 Townsend v. Ratcliff, 50 T. 148. Suit was brought on a note against G. and H. The citation served on G. was correct in every respect, except that it described 294: CITATION BY PERSONAL SERVICE. [ 271. A return of service must show with reasonable certainty that the person served is the defendant for whom the citation was intended; and it is more satisfactory for the return positively to identify the person served with the defendant rather than that the court shall be left to determine the identity by inference or deduction. It has been usual to hold a return sufficient if it show service upon a per- son of the same name with the defendant, and the inference of identity thus indulged has been stretched to the extent of sustain- ing returns when the initials of the Christian or given name of the party served correspond with those of the defendant. But this is the utmost limit to which presumption and inference can with pro- priety be extended. 1 If a person who is served with process be not, in fact, the defendant, he can make an issue of fact on the question of his identity with the person sued ; if he fails to do this in the court below, the appellate court will presume that the person against whom judgment was rendered was the true defendant, although the initial of his middle name be different in the judgment from that which is given in the petition. 2 The return need not set forth that the person served is the defendant, if he be correctly named. 3 The question of identity of names is addressed to the ear and not to the eye. Thus, Basse and Busse. If the attentive ear finds dif- ficulty in distinguishing them when pronounced, they will be con- sidered as idem sonans* If the names may be sounded alike, without doing violence to the power of the letters found in the variant or- thography, the variance is immaterial. 5 271. Date of filing and file number. The citation must state the date of the filing of the petition and the file number of the suit. 6 It seerns that, before the adoption of H. as W. R H. instead of R M. H. The citation served on H. correctly described the parties. It was held that the citation served on G. was sufficient to require him to answer. Gunter v. McEntire, 24 S. W. Rep. 590. 1 Brown v. Robertson, 28 T. 555. 2 Chandler v. Scherer, 32 T. 573. 3 Clark v. Wilcox, 31 T. 322. Ogden v. Bosse, 86 T. 336 (24 S. W. Rep. 798). Calvit and Calvert are idem sonans (Day Land & C. Co. v. N. Y. & T. Land Co., 25 S. W. Rp. 1089); or Dillaunty, Dillahinty and Dillahunty (Dillahunty v. Davis : 74 T. 344; 12 S. W. Rep. 50); or Emerly and Emley (G., H. & S. A. Ry. Co. v. Daniels, 1 Civ. App. 695; 20 S. W. Rep. 955); or Forris and Farris (Lyne v. Sanford, 82 T. 58; 19 S. W. Rep. 847); or Giboney and Gibney (Fleming v. Giboney, 81 T. 422; 17 S. W. Rep. 13); or Hyeron- ymus and Heronymus (Tevis v. Collier, 84 T. 638; 19 S. W. Rep. 801); or Yarbery and Yarbro (Russell v. Oliver, 78 T. 11; 14 S. W. Rep. 264): or Lindsey, Lindsay and Lindsy (Roberts v. State, 2 App. 4); or William and Williams (Williams v. State, 5 App. 226.) Lindsay and Lindly are not idem sonans (Roberts v. State, 2 App. 4); or McKee and McRee (McRee v. Brown, 45 T. 503); or Nuckols and Nich- ols (Dodge v. Phelan, 2 Civ. App. 441; 21 S. W. Rep. 309); or Orr & Lindsley, and Orr & Lindsey (Selman v. Orr, 75 T. 523; 12 S. W. Rep. 697). Foster v. State, 1 App. 531; Goode v. State, 2 App. 520. R S. 1214. ,2.] CITATION BY PERSONAL 8ERVI 295 the "Rt-viM-.l Statotee, an objection to a citation that it did not have the number of the case marked on it was technical, and properlv overruled. 1 And it is held that a citation issued in proceedings by arrant by a justice of the peace, and returnable to an- other court, constitutes an exception to the general rule requiring citations to state the number of the case in which they issued.-' It i< now held that the requirement as to the file number cannot be ted : a citation that does not comply with the requirement will not support a judgment by default. 3 Failure to give the date of the filing of the petition and a mis- i lent of the number of the case are defects, either of which is fatal, and a judgment by default is erroneous. It is suggested that the file number should appear in the body of the citation. 4 72. Must be under seal, dated and tested. The citation must be dated and tested by the clerk, with the seal of the court impressed thereon. 5 The service will not be quashed because the copy of the petition was not under seal. 6 An objection that a citation exhibited a scrawl, with an " L. S." in place of a seal, is held to be technical and properly overruled. 7 When no seal has been provided, the clerk may use a scroll. 8 The statute is very explicit in requiring the seal to be affixed to validity to writs and process. Citations not under seal are void, and the defendant may appear and have them quashed on motion; or, if judgment has been rendered by default, he may have it re- versed on writ of error. 9 The record on appeal must show a seal. 10 The citation may be amended by affixing the seal. 11 Where the writ by which defendant was cited had the impress of the seal of another court than that from which it issued, it was tn-atcd as not authenticated as required by law, and placed defend- ant under no obligation to obey its command or make defense to plaintiffs suit. Judgment by default having been rendered in the county court upon a citation authenticated by the seal of the dis- 1 Peters v. Crittenden. 8 T. 131. 2 Biesenbach v. Key, 63 T. 79. Durham v. Betterton, 79 T. 223 (14 S. W. Rep. 1060). H., E. & W. Tex. Ry. Co. v. Erving, 2 App. C. C., 122; Kirk v. Hampton, 2 App. C. CL, ? 719. iR. S. 1447; also arts. 1122. 1172. tncock v. Shell, 57 T. 215; Thomas v. Woraack, 13 T. 50; Garnett v. Rob- : IVters v. Crittenden, 8 T. 131. 8R. S. ll-j:l. 117.5. < hapinan. :52 T. 569; Frosch v. Schlumpf, 2.T. 422; Wells v. Ames \V..rk-. :: App. C CL, ? 298. ..k v. \\Vill.T. 'J App. C Winn v. Sloun, 1 App. C. < '.. ; 1 in :}. Hale v. Gee, 29 S. W. Rep. 44, 296 CITATION BY PERSONAL SERVICE. [ 273". trict court, it was the defendant's privilege to appeal and have the case reversed, and of this privilege he could not be deprived by any proceedings in the county court subsequent to the judgment. 1 A citation which is not dated and tested, or which has not the date of its issuance noted thereon, is not in conformity with the statute. 2 A citation tested by a deputy clerk in his own name, as deputy clerk, and pretermitting the name of his principal, was held void. 3 273. Must state time and place of appearance. The citation must command the officer to summon the defendant to appear and answer the plaintiff's petition, at the next regular term of the court, stating the time and place of holding the court. 4 This is a matter of substance, and cannot be dispensed with nor supplied by implication or cured by allegations in the petition. 5 If the citation state an impossible time, it is bad ; as, the second Mon- day after the tenth Monday in March ; and the defendant is not required to appear in court and urge the defect. 6 A citation which requires the defendant to appear at the next regular term, of the court, and on the Monday in the month designated by law for the term to begin, is sufficient, without specifying more particularly the day of the month. 7 The citation need not contain the words "at the next regular term; " it is sufficient if it states the time and the place when and where the defendant is required to appear; provided, of course, that the time and place stated are the time and place prescribed by law for holding the next regular term. 8 A citation from the county court which notifies the defendant ta appear before the district court is defective. 9 * Imlay v. Brewster, 3 Civ. App. 103; Brewster v. Norfleet, 22 S. W. Rep. 226. 2 R S. 1447; L & G. N. Ry. Co. v. Pape, 1 App. C. C., 243. In this case the citation appeared to have been issued a year before the institution of the suit, and it was held that such clerical error could not be disregarded when the cita- tion was relied upon to sustain a judgment by default 3 Wimbish v. Wofford, 33 T. 109. * R S. 1214 5 Wright v. Wilmot, 22 T. 398; Davidson v. Heidenheimer, 2 U. C. 490. In this case the time of holding court was stated to be on the " second Monday in Mon- day, A. D. 1874" The citation commanded the defendant to appear at the next term, and in the prayer of the petition the time and place were stated; but this was held insufficient. 6 Covington v. Burleson, 28 T. 368. 'G., C. & S. F. Ry. Co. v. Wheat, 68 T. 133 (3 S. W. Rep. 455). 8 Cave v. City of Houston, 65 T. 619. Contra, Kirk v. Hampton, 2 App. C. C.^ 719. Citing defendant to appear on the third Monday of July, 1883, without stating the day of the month, but stating that said time is the next regular term, is sufficient. McDowell v. Nicholson, 2 App. C. C., g 268. 9 Rutta v. Laff era, 1 App. C. C., 822. A citation which requires defendant to- appear at a date prior to the date of service is defective. James v. Proper, 1 App. C. C., 83; Binyard v. McCombs, 1 App. C. C., g 520; Spence v. Morris, 2* 274-276.] CITATION BY PERSONAL SERV: 74. Style of process. The style of all writs and process must be " The State of Texas." * Where process is issued in the name of the state, with the name of a county added, the latter may be rejected as surplusage, or may be stricken out by amendment. 2 ? 275. When returnable. All writs and process must be made returnable on the first day of the next term of the court after the issuance thereof.* 276. Defendant out of county; copy of petition to accompany cita- tion. AVhere the defendant is to be served without the county in which the suit is pending, a certified copy of the plaintiffs petition must accompany the citation, and should there be more than one defend- ant to be served without the county, a certified copy of the petition must be made out for each of them. 4 If served without the county in which the suit is pending, the officer must deliver to the defend- ant, and each of them, in person, the certified copy of the petition accompanying the citation; 5 a true copy of the citation is also de- livered to each defendant. 6 Certain parties were made defendants by supplemental petition. The return of the sheriff showed a delivery of copies of the petition,, but did not show in terms that copies of the supplemental petition were served. No objections were taken, and it was held that, in support of the judgment, it would be presumed that the defendants- were properly cited. 7 The officer must deliver a certified copy of the petition whether S. \V. Rep. 405. Or one which cites him to appear in the year 187. Scott v. Watts, 1 App. C. C., 89; McNeil v. Ballinger, 1 App. C. C., 841. A petit ion was filed on May ','-. and a citation so stating was served May 29, the sheriff's return stating that the service was by the delivery of a true copy. Court con- vened June 4. and on sworn motion made to set aside a judgment by default, it was shown by the copy of the citation that the filing was stated to be June '21. Held, that the motion was insufficient to overcome the sheriff's return. Woo.1 v. rity of Galveston, 78 T. 126 (18 a W. Rep. 227). R S. 1447. J Biesenbach v. Key, 63 T. 79; Portis v. Parker, 8 T. 28; McMahan v. Board- man, 29 T. K". 1 R. S. 1447. A citation commanded the defendant to appear before the county court to be held on a certain Monday in the nmnth. specifying the day of the month, concluding "and have you then and there this citation." Held, that it sutlii -it-iit ly designated the first day of the term as the return day. De Walt v. Zeigler, 29 a W. Rep. 60. Ra 121.-,. R a 1219. Ra 1218. 'Hackworth v. English, 53 T. 488. 298 CITATION BY PERSONAL SERVICE. [ 2 77. the writ so commands or not. 1 The delivery of a copy not certified will not support a judgment by default. It is not required that the petition be under the seal of the court, but it must be attested by the certificate of the officer who issues it. 2 As to defendants served in the county where the suit is pending, a citation which is valid if served with an accompanying copy of the petition is equally good served on such defendants without a copy of the petition. 3 The return of service on one residing out of the county, to the effect that the service was by delivering to the defendant a true copy of the writ, together with a certified copy of plaintiff's orig- inal petition, shows proper service. 4 277. Sheriff or clerk a party to the suit. Where it appears from the petition that the sheriff is a party to the suit, or is interested therein, the citation must be addressed to any constable of his county. 5 In any case in which a district or county clerk is a party, the judge, either in term time or vacation, on the application of any person interested, or of his own motion, may appoint a clerk pro tern, for the purposes of the suit. He must be sworn and bonded, and must perform all the duties of the clerk in the particular case, motion or proceeding. 6 It is held that this provision is mandatory, and that where the clerk acts as such in a case to which he is a party, all the proceedings are void. 7 Where the action is against the clerk, the citation may be issued by the clerk pro tern, appointed by order of the court. There is no 1 Crawford v. Wilcox, 68 T. 109 (3 S. W. Rep. 695); James v. Watson, 2 U. C. 741; Lauderdale v. Ennis Stationery Co., 80 T. 496 (16 S. W. Rep. 308). 2 Lazarus v. Barrett, 5 Civ. App. 5 (23 S. W. Rep. 822); Taylor v. Pridgeon, 3 App. C. C., 90. 3 Pipkin v. Kaufman, 62 T. 545. Minors, who were sought to be made defend- ants in a suit, and who resided beyond the limits of the county in which the suit was pending, were served with copies of the writ only, and not with copies of the petition. The jurisdiction of the court did not attach by service of pro- cess, and it had no power to appoint for the defendants thus served a guardian ad litem. Kremer v. Haynie, 67 T. 450 (3 S. W. Rep. 676). One original citation, proper in form, commanding that two who were de- fendants be summoned to appear and answer the petition, was issued. Two copies were made out, and one of the copies, with a certified copy of the peti- tion, was served upon each defendant. Though the usual practice is to issue citation to each of several defendants to answer the petition exhibited against him and his co defendants, the service was held sufficient. Carson v. Dalton, -59 T. 500. This decision refers to article 1430. Paschal's Digest, which required a. citation to issue to each defendant. * Sanders v. City Nat. Bank, 12 S. W. Rep. 110. * R. S. 1216. 6 R. S. 1080, 1081, 1135, 1136. 7 Lewis v. Hutchison, 4 App. C. C., 79. 79.] vTIoN UY PERSONAL SERVICE, merit in the >n that the signature "Clerk Pro Tern, of the iv ( 'ourt <>f Fort Bend County "did not show that the p.- :iT tin- writ was an officer known to the law, or that the order of the court did not show that the appointment was only made for >{' the suit. 1 The constitution of !*''. impoM-d upon allies tin- duties of sheriffs theretofore devolved upon coroners, and it was held tliat there was no authority to appoint a special sheriff to serve process in a case in which the sheriff was inter- .or could p roc-oss from the district court be served by a il constable, 3 or by a town or city marshal residing in the county. 4 Service by deputy sheriff. Where a deputy sheriff serves citation, and fails in his return to di-.-lose for whom he acted as deputy, a judgment by default will be reversed. The judgment would be sustained in a collateral pro- Mig. 5 In early cases it was held that his return of process as deputy simply was sufficient, without disclosing his principal. But tln-y seem to be cases in which the question of validity was raised collaterally." Sheriffs have power to appoint one or more deputies. The appointment must be made by writing. The deputies continue in office during the pleasure of the sheriff, and have power and au- thority to perform all the acts and duties of their principals. 7 > 279. Duty of officer as to indorsement, execution and return. It is the duty of the sheriff or deputy sheriff or constable to whom uny citation shall be delivered to indorse thereon the day and hour on which he received it, and to execute and return the same with- out delay. 8 The return of process served by a sheriff or his deputy must be signed officially. 9 The sheriff must return all process on or before the day to which it is returnable. 10 i De Walt v. Zeigler, 29 S. W. Rep. 60. -McClan.- v. K.^-rs. 4'J T. -M4. Boydfii v. McClane. 42 T. Robinson v. Schmidt, 4S T. 13. Articles 1014, 1015, Paschal's Digest, differed very materially from the article at the head of this section, but tin- following cases on the power of the coroner in the execution of process, and when the clerk might issue process to him. might be consulted to advantage: Witt v. Kauf- man. -.'.) T. Sup. 384; Mays v. Forbes, 11 T. 284; Oliph.int v. Dallas, 15 T. 188; Kirk v. Murphy, 16 T. '.M. Arnold v. s,-..tt. :J9 T. 379; Jordan v. Terry, 33 T. 380; Seguin v. Maverick, 24 * Miller v. Alexander, 13 T. 497; Towns v. Harris, 13 T. 507. 7R.S.4806. 8R.S. 1217, 4905. 9RS.4 1 .' w R. & 490U 300 CITATION BY PERSONAL SERVICE. [ 280. 280. Service within the county. Unless the process should otherwise direct, it must be served, if within the county in which the suit is pending, by the officer exe- cuting it delivering to the defendant, or if there be more than one> then to each defendant, in person, a true copy of the citation. 1 "Where there is more than one defendant, each must be served. Service on one will not authorize a judgment by default against the others. 2 Each defendant is entitled to a true copy of the citation ; and it must appear from the return that service was so made. 3 In some early cases it was held that a citation must issue for each de- fendant, requiring the sheriff to summon him to answer the petition of plaintiff or plaintiffs (by name) exhibited against him and against his co-defendants, naming them, but that it would not be error if each citation required the sheriff to summon all. the defendants. 4 This ruling seems to be in accordance with Paschal's Digest, article 1430, which required a citation to issue to each defendant, when there was more than one. It will be noticed that the law now is, that on filing the petition the clerk must issue a citation for the de- fendant (R. S. 1212); if there be defendants residing in different counties, one citation issues to each county (art. 1213); and in all cases each defendant is to be served with a true copy of the citation (arts. 1218, 1219). In a suit against several defendants residing in the same county, the procuring of one citation for each defendant, when the statute directs that one citation shall issue for all the defendants, might render the plaintiff liable for unnecessary costs, but could not vitiate the service of citation. 5 In a case in which there were three de- fendants, the citation directed a delivery " to the defendant," with- out specifying which of them, and it was held sufficient to support a judgment by default. 6 A defendant sued as executor, and also individually, need not be served with more than one copy of the citation. 7 If a sheriff or deputy meets with resistance in the service of pro- cess, he may call to his aid the power of the county. A constable may call to his aid any citizen of the county who may be convenient. 8 1 R. S. 1218. 2 Filman v. Johnson, 4 App. C. C., 152. 8 Rutherford v. Davenport, 4 App. C. C., 244. A return that a true copy of the writ was delivered to three named defendants is not sufficient. McDowell v. Nicholson, 2 App. C. C., 269; King v. Goodson, 42 T. 152; Holliday v. Steele, 65 T. 388; Covington v. Burleson, 28 T. 368; Willis v. Bryan, 33 T. 429; Schramm T. Gentry, 64 T. 143. 4 Little v. Marler, 8 T. 107; Bendy v. Boyce, 37 T. 443. Cent & Mont. Ry. Co. v. Morris, 68 T. 49 (3 S. W. Rep. 557). Pierson v. Belcher L. & M. Co., 22 S. W. Rep. 925. fQwsley v. Paris Exch. Bank, 1 U. C. 93. R. & 4906, 4916. 281-283.] CITATION BY PERSONAL SERVICE. 301 281. Service in suits against counties. In a suit against a county the citation must be served on the county judge of such county. 1 282. Service on cities, towns, etc. In suits against any incorporated city, town or village, the cita- tion may be served on the mayor, clerk, secretary or treasurer thereof. 2 In a suit against a city it would be sufficient for the citation t<> vommand that the corporation be summoned by service on the mayor. It Avould not vitiate the citation for it to command that the mayor and aldermen be also summoned ; this would be proper ^ -here the officers are required to do some official act, for then, on failure to comply with the command, no question could arise as to their liability for contempt. It is not important that the alder- men were mentioned in the writ though not in the petition. Deliv- ery of a copy of the citation to the person mentioned as mayor would bring the corporation before the court. 3 * % 283. Service on incorporated companies and receivers. In suits against any incorporated company or joint-stock asso- ciation, the citation may be served on the president, secretary or urer of such company or association, or upon the local agent representing such company or association in the county in which suit is brought, or by leaving a copy of the same at the principal office of the company during office hours. In suits against receivers of railroad companies service may be had upon the receiver, or upon the general or division superintendent, or upon any agent of the receiver who resides in the county in which the suit is brought. 1 Service upon the agent of a corporation defendant is good, but the writ must cite the corporation to appear, not the agent. 5 It is not essential, though it is proper, and the better practice, to name the local agent upon whom service is to be made. An omission to do so does not invalidate the citation. 6 It is the better practice for both the petition and the citation to name the local agent, and for the writ to direct service upon him. If they be thus specific, a judg- ment by default may be taken without proof that the person sr . i R. S. 1220. *R. S. 1221. City of Houston v. Emery, 76 T. 282, 821 (13 & W. Rep. 264, 266). l Pa-^-li. Dig., art. 4888), t.y leaving with tin- within named defendant, the H. & T. C. R R Co., at their >ffice in Houston," a true copy of the citation and the accompanying cer- tified copy of plaintiff's jn-tition. On the proposition that a motion to qua-h tho should havf pr.-vailed, it was held: (1) The second section ( the act of March "2\. 1^74, entitled "An act to fix the venue in en-tain cases," and the sec- ond section of the act of April 17, 1S74, entitled "An act to confer jurisdiction tain cases," did not repeal by implication the provision* of article 4888, l'a~- -hal's Digest, but were intended to be cumulative. (2) The motion to was properly overruled. H, & T. C. R R Co. v. Wilh. \ isioii of the act of 1874 referred to is the article at the ln-ad of this s.vtion. Article 4888, Paschal's Digest, requires a railroad company to i->tal>lish a princi]Kil otlice at some point on the line of its road, and provide- that all process aua.n^t til-- company may be served on the president or secretary, or by leaving a copy at the principal office of the corporation. Where the record is silent as to the actual domicile of a railroad compat.- shows an agency in a certain county, such county maybe taken a- tin- domicile of the company for the purpose of service of citation. Hunt v. A., T. & S. F. K'\ . Co., 28 S. W. EUtp, WO. 304 CITATION BY PERSONAL SERVICE. [ 285, 286. be found, upon affidavit of that fact being filed, process may be served by publication as in other cases. 1 g 285. Service on foreign corporations. In any suit against a foreign private or public corporation, joint- stock company or association, or acting corporation or association, citation or other process may be served on the president, vice- president, secretary or treasurer,, or general manager, or upon any local agent within this state, of such corporation, joint-stock corn- pan v or association, or acting corporation or association. 2 Service upon a foreign insurance company by delivery of the citation to its agent within the state is sufficient to support a judg- ment by default. 3 But not if it be shown that the agent was inter- ested adversely to the company. 4 The following citation is approved : " The state of Texas, to the sheriff or any constable of Washington county, greeting : You are hereby commanded to summon the West- ern Union Telegraph Company through Mrs. L. M. Miles, its local agent at Brenham, Texas, who represents said company at said place, and who is alleged to reside in said Washington county, to appear at the next regular term of the district court of Washing- ton county, to be holden at the court-house thereof, in the city of Brenham, on the first Monday in March, 1890, ... in a suit numbered on the docket of said court 6791, wherein " repeating the names of the parties, with a statement of the cause of action, and duly attested. 5 286. Service upon a firm. In suits against partners the citation may be served upon one of the firm. Such service is sufficient to authorize a judgment against the firm and against the partner actually served. 6 Where the suit is against several partners jointly indebted upon contract, and the citation has been served upon some of such part- 1 R S. 3070. 2 R S. 1223; Acts 1885, p. 79. * Pac. Mut. L. Ins. Co. v. Williams, 79 T. 633 (15 S. W. Rep. 478). < North British & M. Ins. Co. v. Storms, 6 Civ. App. 659 (24 S. W. Rep. 1122). For proof sufficient to support a finding of agency, see the case cited, and JEtna. L. Ins. Co. v. Hanna, 81 T. 487 (17 S. W. Rep. 35). 5 W. U. Tel. Co. v. Rosentreter, 80 T. 406 (16 S. W. Rep. 25). In an action on a policy issued by a foreign insurance company, service was made on one to whom blank applications had been delivered by persons having them in their possession, and who forwarded the application, delivered the policy and re- ceived and paid over the premium. No other proof of agency was made. The service was held sufficient. In a suit on a judgment rendered by a court of an- other state, the sufficiency of the service of the citation on a foreign corpora- tion was questioned, and it was held that the law of the forum not being proved, it will be presumed to be the same as the law of this state. Southern Ins. Co. v. Wolverton Hardware Co., 19 S. W. Rep. 615. R S. 1224; Alexander v. Stern, 41 T. 193. UI.-X NY PERSONAL 8KRM ners, but not upon all, judgment may be rendered then-: the jrartnership and against the partners actually served, Init no personal judgment or execution shall bo awarded ;i^tinst those not served. 1 AVhen the suit is against a partnership, one member only of the firm beiiii, r st-i \f- 20 306 CITATION BY PERSONAL SERVICE. [ 287. ber or members to answer as individuals. After dismissal as to members of several partnerships named as defendants in a suit, and upon final trial, judgment was final when disposing of the matters in controversy between the plaintiffs and the remaining defendants personal!} 7 . It was not necessary that any entry be made as to the partnerships. 1 When suit is against partners, all of whom have appeared in the case, and two of them have pleaded their privilege to be sued in the county of their residence, and the plea is sustained, it is error to dismiss the whole case, there being no denial of the alleged partner- ship. Judgment should be rendered against the defendant who filed no plea of privilege, binding his personal estate and the part- nership property. 2 287. Return of citation. The return of the officer executing the citation must be indorsed on or attached to the same ; it must state when the citation was served and the manner of service, conforming to the command of the writ, and must be signed by the officer officially. 3 Where there are two or more defendants named in a citation, and service is made on only one, the return should show which one. "On the within named defendant" is not sufficient, although the citation directs service on one only. 4 If the return shows a delivery of a copy to a person of the same name as the defendant, it is suf- ficient, without stating a delivery to the defendant " in person." 8 If there is more than one defendant, a return stating a delivery of a copy or of copies to the defendant is defective; or to the defend- ants A. and B. a true copy. 6 There must appear to have been proper service on each defendant, although they may be husband and wife. 7 The return of an officer on a citation, which states that the writ was served, without disclosing the mode of service, does not state a fact necessary to assure jurisdiction, but states a conclusion as to 1 Frank v. Tatum, 26 S. W. Rep. 900 (87 T. 204). Contra, Frank v. Tatum, 23 S. W. Rep. 311. Service upon one partner after dissolution of the firm, but before its liabilities have been liquidated, is sufficient to authorize a judgment avail- able against the partnership property. (Alexander v. Stern, 41 T. 193, cited.) Tex. & St L. R. R. Co. v. McCaughey, 62 T. 271. 2 Kemp v. Bank, 4 Civ. App. 648 (23 S. W. Rep, 916); Sanger v. Overmier, 64 T. 57; Alexander v. Stern, 41 T. 193. 'R.S. 1225,4905. The return must be signed by the sheriff, 6 and must show that as made by the sheriff. A return that service was made by delivering to a corporation by and through A., its vice-president, is defective. 7 g 288. Return not served. When the citation has not been served the return must show the diligence used by the officer to execute the same and the cause of failure to execute it, and where the defendant is to be found, in so far as the officer has been able to ascertain. 8 ? 289. Alias process. When any process has not been returned, or has been returned without service, or has been improperly served, it is the duty of the clerk, upon application of any party to the suit, his agent or at- torney, to issue other process to the same or any other county, as the party applying may direct. 9 While original process should be directed to the county in which Continental Ins. Co. v. Milliken, 64 T. 48; Ryan v. Martin, 29 T. 412: Willie v. Thomas, 22 T. 175; Graves v. Robertson, 22 T. 130; Thomason v. Bishop, 24 T. IHL Clark v. Wilcox. 31 T. 322; Graves v. Drane, 66 T. 658 (1 & W. Rep. 905). Whitaker v. Fitch, 25 T. Sup. 308; Sloan v. Batte, 46 T. 215; Williams v. iJownes. 30 T. 51. Llano Imp. Co. v. Watkins, 4 Civ. App. 428 (23 S. W. Rep. 612). Gatlin v. Dibrell. 74 T. 36 (11 S. W. Rep. 908). Also Hill \. Grant, 88 T Ryan v. Martin. 29 T. 412; Belcher v. Wilson. 31 T. 139. "Thomas v. Goodman, 25 T. Sup. 446. The return on all process served by a if or his deputy must be signed by them officially. R. S. 4905. ... H. & S. A. Ry. Co. v. Wave, 74 T. 47 (11 S. W. Rep. 918). 8R. 9 R S, 1227. Win-re the suit is against several who are described in the peti- tion as residents of another county, luit temporarily in the county in which suit is brought and in which another defendant reside*, if there be no service, a -u).- ;.) authorize an o/ms citation to of tli. of the defendants. Crawford v. Wilcox, 6S T. 1'JJ ', >. W. Rep. 6J3). 3 13 CITATION BY PERSONAL SERVICE. [ 290. plaintiffs pleadings alleged the parties to be served reside, it is proper, upon the existence of any contingenc)^ mentioned in the above article, for the clerk to issue alias process to the same or any other county, as directed, without an amendment to the pleadings of the plaintiff; and when such process is found in the record, prop- erly served, it will be presumed that its issuance was properly di- rected. 1 An alias citation issued to a county before an amendment of the pleadings, alleging the residence of the defendant to be in that count}', is valid, and when returned with proper service tlie defendant is in default if he fails in proper time to answer. 2 290. Time of service of citation. The citation must be served before the return day thereof; and in order to compel the defendant to plead at the return term of the court, the citation must be served at least ten days before the first day of such return term, exclusive of the days of service and return. If the citation be issued too late, or if it cannot be served at least ten days before the first day of such return term, exclusive of the days of service and return, the officer to whom it is delivered must nevertheless proceed to serve it. at any time before the return day thereof, and such service will be sufficient to compel the defendant to plead at the next succeeding term of the court. 3 Service after the return day is void. 4 The full number of days must intervene be-, tween the day of service and the first day of the term, but they need not be secular days; Sunday is cgunted. The act of 1836 pro- vided simply that the citation should be executed at least five days before the return day thereof, but the ruling has always been that the days of service and return should be excluded. The statute was amended to conform to that ruling in 1848. 5 The judgment will be reversed where the record shows afflrma- 1 Lauderdale v. Ennis Stationery Co., 80 T. 496 (16 S. W. Rep. 308). See g 267, supra. 2 Baber v. Brown, 54 T. 99. The petition stated the residence of defendant to be in W. county, and citation issued to that county and was returned not found. A paper was then filed suggesting his removal to R. county, and asking for a cita- tion to that county, and it was held that the citation was properly issued to R. county, and that it was not necessary to serve a copy of the suggestion of re- moval. Gillmour v. Ford, 19 S. W. Rep. 442. 3 R. S. 1228, 1229; Acts 1891, p. 94. Articles 1228 and 1229 of Revised Statutes of 1879 (P. D., 1506, Act 1848) amended by changing the time of service to ten days in place of five days before the first day of the return term. *Cobb v. Brown, 3 App. C. C., 314; Harrington v. Harrington, 4 App. C. C., 80. 5 Wood v. City of Galveston, 76 T. 126 (13 S. W. Rep. 227). And see Dickson v. Burke, 28 T. 117; Burleson v. Henderson, 4 T. 49; Wood v. Smith, 11 T. 367; Fitzhugh v. Hall, 28 T. 558; O'Connor v. Towns, 1 T. 107; Wallace v. Crow, 1 App. C. C., 41; Trevino v. Garza, 1 App. C. C., 821. '!.] CITAtloN IJY rKK.-'.NAI. - 309 lively that the citation was not served ten days before the first day of the term, exclusive of the days of service and return. 1 ?' 291. Notice to absent or non-resident defendants. Where the defendant is absent from the state, or is a non-resident of the state, the clerk shall, upon the application of any party to the suit, his agent or attorney, address a notice to the defendant requiring him to appear and answer the plaintiff's petition, at the time and place of holding of the court, naming such time and place. The notice must contain the requisites of an ordinary citation, and must be accompanied with a certified, copy of the petition. 2 The notice may be served by any disinterested person competent to make oath of the fact. 3 The service is made by delivering a copy to the defendant, and the copy of the petition. 4 The return of serv- ice must be indorsed or attached to the original notice, and must state when and how the service was made. It must be signed and sworn to by the person making the service, before some officer authori/ed liy the laws of this state to take affidavits; and the affi- davit must be certified under the hand and official seal of the offii -tate, it was held that the above statutes are not to be construed strictly as in derogation of the common law, but liberally and with w to effect their objects and promote justice. The object was to provide for an easier and less expensive method of effecting service on non-residents than by publication, and at the same time to make it certain that the defendant has full notice of the suit. To carry out these objects we must give the statute a liberal construc- tion, disregard technicalities, and supply by intendment what the law. in other cases, would presume had l>een done. The application for the notice will be presumed when it has issued, and especially when it has been asked in the petition. It is also a fair presump- that the person making the service is competent and disinter : until the contrary is proved, and the signature and seal of the officer to tin- /'"/1: Rowan v. Shapard, 2 App. C. C., 293; Sun Mut. ln>. Co. v. Holland, 2 App. C. C.. 444. 310 CITATION BY PERSONAL SERVICE. [ 292. A notice not under seal, and which misstates the date of the filing of the petition, will not support a judgment by default. 1 Where the notice is otherwise sufficient as to the statement of the nature of plaintiff's demand, a statement that the suit is by attachment is sufficient without stating that an affidavit for the attachment was filed. 2 Jurisdiction is acquired by the notice above prescribed in a suit to divest title or claim to real estate. The proceeding is in rern? A personal judgment against a non-resident served out of the state, there being no appearance or answer in the suit, is absolutely void. 4 But an appearance and answer or plea to the jurisdiction is a waiver of immunity by reason of non-residence. 5 292. Amendment of citation. A citation may be amended by affixing the seal of the court. 6 Defects caused by mere clerical mistakes or omissions may be cured by amendment. 7 A writ which varies from the petition may be amended by the petition ; but the court may impose terms to pro- tect the opposite party. 8 The defect is waived by failure to object. 9 Where a motion to quash is sustained because the writ does not contain the names of all the parties, it is proper to permit an 1 Leal v. Woodhouse, 2 App. C. C., 101. 2 Rowan v. Shapard, 2 App. C. C., 295. See this case for comments of the court on the affidavit to the return of service. It was objected that the return was evidenced by an affidavit taken before a notary public which did not im- port in any manner where it was made, no venue or place being recited in the return or the jurat; also that the affidavit was insufficient for the want of proper official designation of the officer before whom it was made. But because the points were not involved in a prop?r assignment, no decision was made. In Blain v. McManus, 2 U. C. 814, it is held that the validity of the service dees not depend upon the official character of the person who served the notice, nor upon any other test of qualification than that prescribed by the statute; that it is within the discretion of the court to permit the notice to be withdrawn from the record to enable the person who made the return to correct any informality therein (art. 1239, R. S.); that service having actually been made on a defend- ant, it is not void by reason of the failure to have an affidavit attached to the notice setting forth the required facts, but that the defendant is bound to take notice of the return that is made, and of the order of court allowing the notice to be withdrawn; that the requirement that the return shall be attached to the notice is directory, and the omission to attach it would not, of itself, warrant the court in setting aside the judgment (citing Cartwright v. Chabert, 3 T. 261). 3 Hopkins v. State, 28 S. W. Rep. 225. 4 Schmidt v. Stern. 1 App. C. C., 92; Hartley v. Conn, 4 Civ. App. 299 (23 S. W. Rep. 382); Scott v. Streepy, 73 T. 547 (11 S. W. Rep. 532); York v. State, 73 T. 651 (11 S. W. Rep. 869); Masterson v. Little, 75 T. 682 (13 S. W. Rep. 154). 5 Hartley v. Conn, 4 Civ. App. 299 (23 S. W. Rep. 382); Penfield v. Harris, 7 Civ. App. 659 (26 S. W. Rep. 762). 6 Winn v. Sloan, 1 App. C. C., 1103; Cartwright v. Chabert, 3 T. 261. 7 Cartwright v. Chabert, 3 T. 261; Kavanaugh v. Brown, 1 T. 481. 8 Kavanaugh v. Brown, 1 T. 481. Cartwright v. Chabert, 3 T. 261. '3, 294.] CITATION in amendment. If the clerk fails t<> make the amendment, and judg- ment by default is taken, it will be erroneous. 1 293. Mistake in return. v mistake or informality in a return may be corrected by the ollieer at any time under the direction of the court. 3 This statute simply atlirms the general law. 3 Ji 294. Acceptance of service. The defendant may accept service of any process, or waive the ice or service thereof, by a written memorandum signed by him or his duly authorized agent or attorney, and filed among the papers of the cause; and such waiver or acceptance will have the same force and etFect as if the citation had been issued and served as provided by law.* The statute provides that such acceptance or waiver of process shall not in any action be authorized by the con- i Wood v. Smith, 11 T. 367. R. & 1339. Messner v. Lewis. 20 T. 221. See Porter v. Miller, 7 T. 53. An amendment of a return made by the sheriff after judgment, and when the court is not in session, is a nullity. Thomas v. Goodman, 25 T. Sup. 446. The defendant sued out ;i writ of error upon a judgment rendered by default upon a defective re- turn of service of the citation. Upon motion of the plaintiff served upon the attorney of the defendant who had sued out the writ of error, the district court Iermitted tin- sheriff to amend his return. It was held that the amendment was improperly allowed, and that the case stood as if the amendment had not been made; that the plaintiff should have filed his petition, setting forth the and asking the court to set aside the judgment erroneously entered, and then have IIM I the defendant served as in an original suit, when the latter might have pleaded any defense he had to the action. Thomson v. Bishop, 24 T. .'in- case having been reversed and remanded for further proceedings, jud_':ie-i:t i>y < It-fault was again rendered against the defendant On error it wa- held that the amendment of the sheriff's return had been properly made, anil that the judgment by default was properly rendered. Thomson v. Hishnp. 29 T. 154: Hurke v. Thomson, 29 T. 158. In Smith v. Haynes. 80 T. 500. judgment was rendered March 7. 1867. The petition for the writ of error, the bond, and citation and service were dated March, 1867. On the 21st of August. 1867, an anieii'liuent of the judgment was made under the provisions of the statute. P. D. 51. It was held that no proceedings in the district court were within its ictiou after the perfecting of the writ of error. See Perdew v. Davis, 31 T. 488. \Vhere exceptions to the sufficiency of the service of citation on the defend- ant had been overruled and exception taken, the act of the district court in .t tin^ tin- return of service to be so amended as to show legal service can- not be considered on appeal, when such permission was given after the appeal was perfected. Continental Ins. Co. v. Milliken, 64 T. 46. A sheriff set copy of a first-amended original petition, in obedience to the command of the writ, but his return stated that he served a copy of the original ]N-tition. There udgMient by default and motion for a new trial, and. on motion by plaintiff and lue notice to defendant, the -1,. rilF u ;i^ required to amend his return. This was held proper. Canadian & Am. Trust < r. K \ - r. 7 Civ. A pp. * R S. 1240; Hackworth v. English, 53 T. 488, 494. 312 CITATION BY PERSONAL SERVICE. [ 295, 29G. tract or instrument of writing sued on, or any other instrument executed prior to the institution of such suit, nor be made until after suit brought. 1 An acceptance of service and waiver of process made prior to the institution of the suit will not support a judg- ment by default. An acceptance by indorsement on the petition is not permitted. 2 A party by a waiver of process waives no other right. 3 S 295. Entering appearance in open court. The defendant may in person, or by attorney, or by his duly au- thorized agent, enter an appearance in open court. Such appear- ance must be noted by the judge upon his docket, and entered in the minutes, and will have the same force and effect as if citation had been duly issued and served as provided by law. 4 Such entry of appearance shall not be authorized by the contract or instrument sued on, or any instrument executed prior to the institution of the suit. 5 An appearance is said to be strictly voluntary when without the service of process a defendant in some manner indicates his inten- tion to submit his person and cause to the jurisdiction of the court. 6 296. Answer is appearance. The filing of an answer constitutes an appearance of the defend- ant so as to dispense with the necessity for the issuance or service of citation upon him. 7 Where a defendant answers in a suit, it is equivalent to service of citation upon him, although he afterwards withdraws his answer. 8 The fiing of an answer waives alleged de- fects in the service. 9 A defendant who files any defensive pleading makes such an appearance as gives the court jurisdiction over his person as fully as would the issuance of proper citation and its proper service within the state. The purpose for which an appear- ance is made is unimportant, as is the intention with which it is made, if the act done is one which the statute declares is such as gives to the court jurisdiction to render a personal judgment against the person appearing. 10 1 Acts 1885, p. 33; R S. 1349. See Lidiker v. Ratto, 2 App. C. C., 116, decide 1 before the adoption of this statute, on the sufficiency of a warrant of attorney. - MrAnelly v. Ward, 72 T. 342 (12 S. W. Rep. 206). 3 Glenn v. Shelburne, 29 T. 125; Kennedy v. McCoy, 46 T. 220. As to the right of a married woman to accept service of process, when sued with her husband, see Laird v. Thomas, 22 T. 276. 4 R. S. 1241. 5 R S. 1349; Acts 1885, p. 33. York v. State, 73 T. 651 (11 S. W. Rep. 869). 7 R S. 1242. ^ Wheeler v. Roberts, 2 App. C. C., 127. 9 Randall v. Meredith, 11 S. W. Rep. 170. York v. State, 73 T. 651 (11 S. W. Rep. 869). 297.] CITATION BY n:i:-'NAL SERTICK. 313 Defendant in attachment appeared and rxrepti-d t<> the juri lion of the court, and moved to <|tiash the attachment, stating that he appeared for the purposes expressed therein alone; and in his other answer he stated that it was filed without any intention of waiving his other pleas, and that ho thus answered to the merits only in the event they should be overruled. This pleading <>f the defendant entered an appearance, and gave the court jurisdiction over his person. 1 The same effect is given to a plea to the jurisdic- tion by a non-resident; 8 as in case of a plea by a foreign corpora- tion, alleging that the person on whom service was made was not its agent such an appearance is an appearance for all purposes at the next term.* 297. Quashing citation on motion. Where the citation or service thereof is quashed on motion of the defendant, the cause may be continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term of the court. 4 The statute compels the construct- ive appearance of the defendant to the merits at the next term, whether his motion be sustained or not. If the motion to quash be properly overruled, the defendant is in court from the time of the service; if improperly overruled, and the case is continued, he has obtained all the benefit that could have resulted if his motion had been sustained ; and the error being immaterial, it would afford no ground for reversing a judgment afterwards rendered, and no con- stitutional right of the defendant is infringed thereby. The rule tends to a speedy administration of justice, and the saving of costs in litigation, and should be liberally construed. 5 The statute applies to a non-resident served without the state. If the motion to quash or to set aside an attachment be sustained, the effect is only to abate the writ; it does not operate a disc. >Grizzard v. Brown, 2 Civ. App. 584 (22 S, W. Rep. 252). 'Cunningham v. State, U S. W. Rep. 871; Pace v, Potter, 20 S. W. R-j 85 T. 47a 'Fairbanks v. Blum, 2 Civ. App. 479 (21 S. W. Rep. 1009); /Etna Ins. . Hanna. 81 T. 487 (17 S. W. Rep. 35): Hartley v. Conn, 4 Civ, \ir -'!". (88 S. W. Rep. 3*-J): lYnlicl.l v. Harris. 7 Civ. App, 659 (26 8. W. Rep. 768); Am. L.-i:ion <>f Honor v. I .armour, 81 T. 71 (16 S, W. Rep. 633); Mex. Out. Ky. Co. v. Cliarman, Jl S. \V. KVp. i.V<; St. L., A, & T. Ry. Co. v. Whitlcy. 7? T. 1W . i:< S. \\ "\VhrnMlftVn.lantin a suit to recover personal property i-M-rut.-il a r--plr\v bond, employed attorneys to defend the suit, and tin- attorneys av-ptrd p certain notice in the cause and waived the filing of certain record evid. be used on tin- trial, it was held that this was not such an app- aranr,- a> would run- a defective citation void for want of a seal. Wrll* v. Ann s Iron \\ ;{ App. c. r.. J-. M .MI. . :J03); York v. State, 73 T. 051 (11 S. \V. |{,.,,. MU9); Jones v. K-ith. ,'-' S. \V. 1:-].. 77:{. LVnt. tf Mt.nt. Ky. Co, v, Morris, 68 T, 49 (3 S. W. K. p. 107). oii CITATION BY PERSONAL SERVICE. [ 298, 299. of the suit, but brings the defendant into court for all purposes at the succeeding term ; l or the plaintiff may have service of citation within the state, if the defendant can be reached. 2 An appearance by a non-resident to object to the legal effect of constructive serv- ice does not waive the privilege as to venue, nor subject the defend- ' ant to a trial at the first term after such service. 3 g 298. No new citation in case of reversal on appeal. Where the judgment is reversed on appeal or writ of error taken by the defendant for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed. 4 S 299. No judgment without service. No judgment shall in any case be rendered against any defend- ant unless upon service, or acceptance, or waiver of process, or upon iFeibleman v. Edmonds, 69 T. 334 (6 S. W. Rep. 417): Sam v. Hockstadler, 76 T. 162 (13 S. W. Rep. 535); Fairbanks v. Blum, 2 Civ. App. 479 (21 S. W. Rep. 1009). 2 Feibleman v. Edmonds, 69 T. 334 (6 S. W. Rep. 417). St. L., A. & T. Ry. Co. v. Whitley, 77 T. 126 (13 S. W. Rep. 853). When a cita- tion or service thereof is quashed on motion of defendant, tho case may be con- tinued for the term; but the defendant will be deemed to have entered his appearance at the succeeding term of the court. If the motion to quash is not acted on during the term, but is passed to another term without action, the de- fendant will be treated as having appeared at the next term. The consequences as to service by notice being the same under the statute as service by citation, the effects of a motion to quash the two species of process must be the same as to constructive appearance at the term following. This held without deciding tliat an appearance by a non-resident of Texas for the purpose of objecting to the right of a Texas state court to bring him within its jurisdiction by notice served without the state can so bring him within the jurisdiction of the state as to require him to answer at the succeeding term. Feibleman v. Edmonds, 69 T. 334 (6 S. W. Rep. 417). A motion to quash a citation for alleged defects therein, on which no action of the district court was procured until two terms had intervened, presents no question which will be considered on appeal; for under the statute, if either the citation or the service thereof had been acted on and held defective at the term when the motion was filed, under the statute the defendant would have been regarded as having made his appearance at the succeeding term. When no ex- cuse is shown for not procuring the action of the district court on a motion to quash a citation for defects therein during the term at which it is filed, the right to urge the objection at a subsequent term is waived. L & G. N. Ry. Co. v. Brett, 61 T. 483. A defendant filed a motion to quash service, and an answer which expressly alleged that it was not to be considered as in the case unless the motion was overruled. The motion was sustained, and it was held that the court was au- thorized to hold that defendant was without pleadings, and to render judgment by default at the next term. London Assurance Co. v. Lee, 66 T. 247 (18 S. W. Rep. 508). A motion to quash comes too late after a plea to the merits. Brown v. State, 30 T. 282: Cook v. Southwick, 9 T. 615. 4 R. S. 1244. 291X] CM r PERSONAL SERVICE. an appearance by the defendant, as prescribed in this chapter, ex- cept uhore otherwise expressly provided, by law. 1 Servu process is of no offer AVhen on appeal from a judgment by default, the record fails to show affirmatively either service of process on the defendant, or waiver tin-roof, or an appearance entered by him in the court below, the judgment will be reversed. 3 If the record disclose service, it will cure a defect in this particular in the judgment ; 4 it is held that the record must show service outside of the recital in the judgment to support a judgment by default. 5 To determine whether the record shows affirmatively that there was proper service, the whole of it must be considered together. The recital in the judgment, which is the last act of the court in the case, reciting that the defendant was "duly cited with process," imports in a collateral proceeding absolute verity. 9 In a collateral attack upon a judgment if the judgment itself finds and recites a valid citation and service, that controls the balance of the record; otherwise if it recites an invalid citation or names the precise character thereof. If the judgment is silent as to service, then the whole record may be examined. This obtains in judgments of courts of general jurisdiction. 7 A domestic judgment of a court of general jurisdiction upon a subject-matter within the ordinary scope of its power is entitled to such absolute verity that in a collat- eral action, even where the record is silent as to notice, the pre- sumption, when not contradicted by the record itself, that the court had jurisdiction of the person also, is so conclusive that evidence // will not be admited to contradict it. 8 Judgment against a person without legal service, acceptance or waiver of process, or appearance, is void. 9 But the validity of a judgment against parties before the court, properly served, is not inl ly the fact that it is void as to other defendants not actu- ally served, 10 unless the cause of action be indivisible in its nature. 11 i K. S. 124.K Wooldridge v. Griffith, 59 T. 290; Glass v. Smith, 66 T. 548 (2 S. W. Rep. ! . H. & S. A. Ry. Co. v. McTiegue, 1 App. C. C., 437, 458. 'Bates v. Casey, 61 T. 592. * I'ij.kin v. K;uifm;m. ,> T. 545. Carlt..n v. Miller, 2 Civ. App. 619 (21 & W. Rep. 697). Treadway v. Eastlmrn. .*,: T. ,' S. \V. Rep. 195); Roller v. Reid, 87 T. 69 (tB x \V. Rep. 1060). WHollis v. Dashi.-ll. :>,' T. 1-7. Hulme v. Janes, 6 T. 21,'. 316 CITATION BY PEJRSOJSAL SEE VICE. [ 300. It is a rule founded in the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty or property without an opportunity to be heard in defense of his rights. The constitutional guaranty of due process of law has its foundation in this rule. 1 A decision of a judicial nat- ure, conclusively deciding upon the property rights of a citizen, and imposing a burden upon him, can only be given in a proceeding of which he has notice; without such notice there can be no due pro- cess of law. 2 This principle is fundamental. 3 It is sufficient in all cases if the law affords an opportunity to be heard ; it is within the power of the legislature to determine the form, time and manner of the notice to be given, and the mode of service. 4 300. Objections to citation, service and return, A defendant is not required to obey a void process ; but if merely defective, it brings him into court, and if he does not take his ex- ception at the proper time he cannot urge the defect on appeal or error. 5 In another case it is held that where the service appears from the record to be defective, it is not incumbent on the defend- ant to appear and make the objection in the court below ; he may take advantage of it by writ of error. The service in this case was void, however, no copy of the petition being delivered to a defend- ant served out of the county. 8 If the return is insufficient, and judgment goes by default, the judgment is erroneous, and will be reversed on error, although the entry of the judgment recite that the defendant was legally served. 7 The general rule of law is, that any omission of the requirements 1 Stuart v. Palmer, 74 N. Y. 183 (Myer on Vested Rights, 763, 766). 2Kuntz v. Sumption, 117 Ind. 1, 8 Gjlmore v. Sapp, 100 111. 297; Jack v. Thompson, 41 Miss, 49; State v. City of Plainfield, 38 N. J. L, 95; State v. Mayor, etc, of Jersey City, 4 Zab. 662 (Myer on Vested Rights, 768, 769). < Matter of Application of Village of Middleton, 82 N, Y, 196; Matter of Laying Out Livingston Street, 82 N. Y. 621; Pope v. Terre Haute Car Manuf. Co,,87N. Y. 137 (Myer on Vested Rights, gg 779, 782), 5 Cave v. City of Houston, 65 T. 619; Grain v. Griffls, 14 T. 358, 6 James v. Watson, 2 U. C. 741, " Roberts v. Stockslager, 4 T. 350. On writ of error it was assigned that the citation was insufficient to support the judgment. No citation was copied into the transcript The judgment recited that the defendant was duly oited. It was held evident from the entire record that the defendant had been cited and the defect in the service was not shown. There was therefore no ground for reversal for want of sufficient service, Hamilton Mill and Gin Co, v, Sinker, 74 T. 51 (11 S, W. Rep. 1056), The petition was filed on February 26, 1892, and citation issued the same day. The return thereon showed that it came to hand on February 19, 1892, and was served on February 20, 1892, The sheriff and clerk being of equal dignity before 'the court, it is held that in the conflict between their recitals there was nothing to affirmatively show proper service. State Fair an.d Pallas Exposition v, Lvon, 5 Civ, App. 383 (24 S, W, Rep, 328), 301,] CJTATIOX BY PERSONAL SERVICE. of the la\v as to the citation, and the mode and manner of its re- turn, will cause a reversal of a judgment by default, because the itions on the subject are imperative, and must be strictly f>l- 1. no inference or presumption being allowed to supply appar- ent defects. 1 It is held that a citation which gives the date of its nee and of the filing of the petition as of a time subsequent to the date of its service and return is defective, but, if otherwise suf- ficient, that the objection cannot be made for the first time on appeal. A distinction is observed between citations that are void and those that are only defective, and, while admitting that it i , difficult to reconcile the cases, it is held to be the better rule to re- quire a defendant to make his objections in the court below on account of defects which do not make the process void such de- fects as may be amended. The rule would seem to be, then, that process merely defective, and therefore amendable, brings the de- fendant into court to urge his objections if he chooses to do so, but that he need not notice void process, and may urge his objections for the first time on appeal. The decisions are not uniform. 2 301. False return. A sheriff who makes a false return of any process may be pun- ished as for a contempt, and is liable in damages to any person in- jured by such false return. 1 AVhere a sheriff's return is in form full and sufficient, it requires more than the testimony of one witness to contradict it on a mo- tion to set aside a judgment by default. 4 The evidence of falsity need not be uncontroverted ; but the rule is that there must be a preponderance of evidence. 5 It must be clear and satisfactory, and on a cross-bill to set aside a judgment by default in favor of one who fraudulent!}* procured the record to show service, it was held that parol evidence contradicting the officer's return was admissi- ble. 6 A party filing a plea in abatement, alleging that he was not served with a true copy, must appear and support the plea or judg- ment will go against him. 7 1 L & G. N, Ry. Co. v. Pape, 1 App. C. C., 242; Graves v. Le Geirse, 1 App. C. C., g 812, citing Underbill v, Lockett, 20 T. 180; Graves v. Robertson, - ( J T. 180; Tullis v. Scott, 38 T. 588. * Marshall v. Marshall, 30 S. W. Rep. 978. It is held in some of the early cases, that if the service appear from the record to be defective, it is not incumbent on the defendant to appear and object in the court below, but that he may raise the objection upon error. Burleson v. Henderson, 4 T. 49; Frosh v. Schlumpf, 2 T. 422; Norvell v. Garthwaite, 25 T. 583; Covington v. Burleson, 26 T. 868. *RS.4901. Gatlin v. Dibrell, 74 T, 36 (11 S. W. Rep, 908); Wood v. Galveston, 76 T. 126 W. Rep. 227). Kempner v. Jordan, 7 Civ. App. 275 (26 S. W. Bep. 870), 6 Randall v. Collins, 58 T. 231. ' McKellar v. Lamkin, 22 T. 244. CHAPTER XIII. CITATION BY PUBLICATION. 302. When authorized. 303. Contents of citation; publica- tion. 804. Unknown heirs. 305. Publication in other cases. 306. Against residents of Texas. 307. Time of publication. 308. Answer filed, when; appearance. 309. Return of citation. 310. Judgment in suits by publica- tion. 311. Statement of the evidence. 312. What judgment authorized. 313. Presumptions in aid of the pro- ceedings. g 302. When authorized. "Where any party to the suit, his agent or attorney, shall make oath at the time of instituting the suit, or at any time during its progress, that the party defendant is a non-resident of the state, or that he is absent from the state, or that he is a transient person, or that his residence is unknown to the affiant, the clerk will issue a citation, for the defendant, addressed to the sheriff or any con- stable of the county in which the suit is pending. 1 In suits against life or health insurance companies, service may be made by publication upon the filing of an affidavit to the effect that no one holding a power of attorney from the company can be found within the state. 2 An affidavit is necessary to support the judgment where the trial is ex parted In a collateral attack upon a judgment rendered in a court of competent jurisdiction upon citation by publication, that a defective affidavit is found in the record, and no other sufficient affidavit is preserved as a basis for the issuance of the citation by publication, will not affect such judgment. Although the court may find that what purports to be an affidavit is no affidavit at all, still if it is not shown that an affidavit was not in fact made, the law will presume that one was made, where the judgment is attacked collaterally. The court leaves the question open, whether an affidavit is neces- sary in order for the jurisdiction of the court to attach. 4 1 R. a 1235. 2 R. a 3070. 1 Doty v. Moore, 16 T. 591. Where the affidavit stated that the residence of defendant was known to affiant, instead of unknown, "and that in consequence personal service cannot be had on him," and there was judgment by default, it was held that the mistake was not material. Pierpont v. Pierpont, 19 T. 227. Hardy v. Beaty, 84 T. 562 (19 S. W. Rep. 778). 3, Sol.] U.-N i;v i-ri;i.ic.\ An affidavit by an agent, in the form of the statute, that " the names aiul residences of the heirs," etc., are unknown, is sufficient us liu f<.!!- alleged to hold possession, the clerk is required i>< ting forth briefly the contents of the petition, for all us interested in the estate to appear and answer at the next term <>f court, which citation shall be published as required in other civil suits. If no person appears, judgment by default is entered in behalf of the state. 1 The record must show that notice was D by publication to all persons interested to appear and show why the estate should not vest in the state. 2 If the require- ment is not complied with the court has no jurisdiction. 8 The pub- lication is not made for unknown owners, as intimated in Hanna v. . v i T. 664, but is made simply for all persons interested. A citation to unki, I iv. App. 410 (27 S. W. ! Kllis v. Staf, :: Civ. Aj.p. 17" ,21 a W. Rep. 66; 24 S. W. Rep. C60). rthrnift v. Oliver, 74 T. 162 (11 S. W. I^-j.. 1121); Martin v. Burns, 80 T. 676(168. W. Rep. 1 rnan.l.-x 1 S. \V. K. p. 1 49X "Grassmeyer v. BftMOD, 1- T. YJI. 1-* T. 798; I-iwK-r v. White. 27 T. 2.V). 'Traylor v. I.i.l. . 7 S. YV. Rep. 58. "Martin v. Burns, 80 T. 676 (10 S. W. Rep. 1072). The action was for debt in a county court for a sum within its jurisdiction. Ujxjn affidavit that the resi- 21 322 CITATION BY PUBLICATION. [ 307^ 307. Time of publication. The general provision of the statute requires publication once in each week for four consecutive weeks previous to the return day. 1 The same time is required in suits to quiet title against non-resident, unknown or transient persons ; - also in suits for partition against unknown owners. 3 The general provision for proceedings against unknown heirs requires publication once in each week for eight consecutive weeks previous to the return day. 4 Where four weeks' publication is required, twenty-eight days must elapse between the date of the first publication and the re- turn day, exclusive of both dates. 5 If the required number of in- sertions cannot be made before the return day, but the publication for the prescribed time is nevertheless made, it is held that this will be sufficient to require an appearance at the next succeeding term. 6 dence of the defendants, alleged to be partners, was unknown, citation by pub- lication was duly made. Judgment against the firm. Execution issued, and there was a levy and sale of land owned by one of the defendants, and it was held that such sale passed the title. Service of citation by publication against defendants alleged to be partners is sufficient to support a judgment against the partners, and sale of the property of any of the firm is valid without other actual service. A partner not actually cited is not bound, and a personal judg- ment cannot be entered against him; but if he is in fact a resident of the state and is mentioned in the writ, he is actually served by the publication of the writ The law in force in 1869 (P. D. 1190) authorized citation by publication in a justice's court only upon affidavit that the defendant was absent from the state, or that he was a transient person, and it was held that a judgment by default, based on a citation by publication, made on an affidavit that the residence of the defendant was unknown to affiant, was void, that fact appearing upon the record, and might be attacked collaterally. Such service should be strictly con- strued. A sale of land made under execution based on such a judgment could not divest title. The owner would not be bound to refund the purchase-money paid before being entitled to recover in a suit against a purchaser in possession, nor could the purchaser sustain limitation of three years under his deed. Ste- gall v. Huff, 54 T. 193. 1 R S. 1235. 2 Acts 1893, p. 77; R S. 15046. s R S. 3609. lit> ujK>n the publication for the time and in the manner prescrilwl in the Matutf. The continuance until the second term prescribed in th. which time the defendant could answer, does not affect the existence of the completed service Cassidy v. Kluge, 73 T. 154 (12 S. W. Rep. 13); Smith v. Cas- 7:J T. 161 (12 S. W. Rep. 13). Tobar v. Losano, 6 Civ. App. 698 (25 S. W. Rep. 973); Davis v. Robinson, 70 T. 894 (7 S. W. Rep. 749). 7 R S. 1238. 8 Blossman v. Letchford, 17 T. 647. Tobar v. Losano, 6 Civ. App. 698 (25 a W. Rep. 973> 324 CITATION BY PUBLICATION-. [ .310. dence on which such recital was made is pointed out, and that shows that there was not due service. 1 But it is held that where the re- turn on the citation shows that less than twenty-eight days expired between the date of the issuance of the citation and the return day, but recites that it was published for four successive weeks, the judg- ment is not void. The presumption must prevail in favor of the judgment, that the officer did his duty and that he promptly caused the publication to be made, and that the court was satisfied of that fact on entering judgment. 2 The return must state all the facts necessary to show that the writ has been executed according to the terms of the law. If it does not show when the publication was made nor that it was made the required length of time, it is insufficient. 3 310. Judgment in suits by publication. Where service of process has been made by publication, and no answer has been filed within the time prescribed by law, the court appoints an attorney to defend the suit, and judgment is rendered as in other cases. 4 The same provision is made for the appointment of an attorney when unknown owners in partition are cited by pub- lication. 5 The proceedings are the same as above in suits to settle i Fowler v. Simpson, 79 T. 611 (15 S. W. Eep. 682). 2Tobar v. Losano, 6 Civ. App. 698 (25 S. W. Rep. 973). 3 Chaff ee v. Bryan, 1 App. C. ., 770; Allen v. Wyser, 29 T. 150. Where the citation was published for four successive weeks prior to the term of the court at which the judgment was rendered, but not for that length of time prior to the return day of the writ, the service was held sufficient. Wilson v. Green, 1 App. C. C.. 98. A return "came to hand this 28th day of October, 1881, at 11 o'clock A. M., and executed by having the within writ published for four consecutive weeks previous to return day," signed by the sheriff, and accompanied with the affi- davit of the editor of the newspaper that the citation was published four con- secutive weeks in his paper, giving dates, was held insufficient under the present law. Burns v. Batey, 1 App. C. C., 419. An affidavit of the publisher is not now required (Burns v. Batey, 1 App. C. C., 419; Chaffee v. Bryan, id., 771), and would not be considered if attached to the return. Tobar v. Losano, 6 Civ. App. 698 (25 S. W. Rep. 973). 4R.S. 1346. 8 R. S. 3609. An attorney must be appointed in all cases where a defendant is cited by publication, and fails to appear within the term allowed for pleading. Formerly he was allowed a reasonable compensation, to be taxed as a part of the costs. R S. 1879, 1212; Burns v. Batey, 1 App. C. C., 420. An answer in the record, signed by an attorney and referred to in the judgment, authorizes the presumption simply that it was filed by an attorney appointed by the court. It will not bind the defendant. Foote v. Sewall, 81 T. 659 (17 S. W. Rep. 373); Schneider v. Gray, 7 Civ. App. 25 (26 S. W. Rep. 640). The attorney cannot rep- resent conflicting interests of the parties for whom he acts. When a conflict becomes apparent, the attorney appointed should be relieved of a part of his duties, and another or others should be appointed. O'Leary v. Durant, 70 T. 409 (11 S. W. Rep. 116). Before the Revised Statutes were enacted it was only where unknown heirs 311, 312.] CITATION BY PUBLICATION. the title to property against non-resident, unknown or transient persons no judgment by default can be entered, but the plaintiff must prove his case, and a statement of the facts must be filed. 1 811. Statement of the evidence. Where no answer is filed, a statement of the evidence, approved and signed by the judge, must be filed with the papers of the r;ui>t> as part of the record thereof. 2 This provision is imperative, and the judgment will be reversed if it is not complied with. 3 The law is not complied with by tiling the papers upon which judgment was ]fin lered. It must appear that the court recognized the papers as the evidence adduced. 4 It seems that the incorporation of a state- ment of the facts in the judgment is sufficient.* The failure to file a statement of facts in a suit by attachment does not render the judgment void so that it may be attacked col- laterally ; 6 nor will the judgment be reversed on the complaint of one whose duty it was to see that a statement was filed. 7 312. What judgment authorized. Except in cases affecting the personal status of the plaintiff, and cases in which service of process by publication may t>e considered to have been assented to in advance (as in cases of copartnerships and corporations), service of process by publication in actions against non-iv-,ierson for commencing the action, property in the state is brought under the control of the court, and subjected to its dis- position by process adapted to that purpose, or where the judgment were cited by publication that it was required that an attorney be appointed by the court to represent the defendant Harris v. Daugherty, 74 T. 1 (11 S. W. Eep. " s!893, p. 77; R& 1504A *R a 1846; Acts 1893, p. 77; R a 1504 facts. Hewitt v. Thomas, 46 T Buse v. Bartlett, 1 Civ. App. 335 (21 S. W. Rep. 52). When- two makers of a promissory note were served personally, and a thinl by publication, anil tin- judgment recited that the defendants appeared, the recital was held to apply to all the defendants, and a statement of the facts was not necessary. Chester v. Walters, 30 T. 7 Taliaferro v. Carter, 74 T. 037 ^12 S. W. Rep. 730). 326 . CITATION BY PUBLICATION. [ 312. is sought as a means of reaching such property or affecting some inter- est therein. It is not decided, however, that a state may not author- ize proceedings to determine the status of one of its citizens towards a non-resident which would be binding within the state, though made without service of process or personal notice to the non-resi- dent. The jurisdiction which every state possesses to determine the civil status and capacities of all its inhabitants involves author- ity to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. A state, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be cre- ated and the causes for which it may be dissolved ; but a mere per- sonal judgment, rendered against a non-resident of the state, on notice by publication, in a suit brought to determine the mere per- sonal rights and obligations of the parties, is without due process of law, and void. 1 The above rule, that a personal judgment cannot be rendered against a non-resident on notice by publication, or service without the state, is obligatory upon the states and is followed by the courts of Texas. 2 A personal judgment for costs is not authorized; but in suits for partition it is held that the court may make the costs adjudged against each party a lien upon the land allotted to him, and may order its sale if the costs should not be paid. 3 In an ac- tion against a corporation for specific performance of a contract to convey land, notice by publication will not authorize a judgment for damages for breach of the contract. 4 A judgment partitioning land is authorized. 5 A judgment ren- dered upon service by publication upon non-resident defendants in an attachment suit is void save as against the property attached. An execution sale of other property under such judgment is void. 6 The attachment of property and bringing it into the custody of the law is the fact which gives the court jurisdiction of the property of a non-resident, and defect in the affidavit for attachment will not de- feat it. 7 But it is held' that the failure of the attachment is fatal 1 Pennoyer v. Neff, 95 U. S. 714, Myer on Vested Rights, 780. 2 York v. State, 73 T. 651 (11 S. W. Rep. 869); Kimmarle v. H. & T. C. Ry. Co., 76 T. 686 (12 S. W. Rep. 698); Maddox v. Craig, 80 T. 600 (16 S. W. Rep. 328); Osborne v. Barnett, 1 App. C. C., 129; Martin v. Cobb, 77 T. 544 (14 S. W. Rep. 162). "Taliaferro v. Butler, 77 T. 578 (14 S. W. Rep. 191); Hardy v. Beaty, 84 T. 562 (19 S. W. Rep. 778); Gunter v. Armstrong, 2 Civ. App. 599 (21 S. W. Rep. 607); Foote v. Sewall, 81 T. 659 (17 S. W. Rep. 373); Freeman v. Alderson, 119 U. S. 185. Tempel v. Dodge, 31 S. W. Rep. 686. Taliaferro v. Butler, 77 T. 578 (14 S. W. Rep. 191); Foote v. Sewall, 81 T. 659 (17 S. W. Rep. 373). 6 Martin v. Cobb, 77 T. 544 (14 S. W. Rep. 162); Harris v. Dougherty, 74 T. 1 (11 S. W. Rep. 921). 7 Barrelli v. Wagner, 5 Civ. App. 445 (27 S. W. Rpp. 17), following Cooper v. Reynolds, 10 Wall 319; Mathews v. Dinsmore, 109 U. S. 216. 312.] CITATION BY PUBLICATION. 327 to the jurisdiction. 1 A non-resident may maintain an attachment st a n..n-resident. and an appearance by the defendant to ex- cept to the jurisdiction confers jurisdiction over his person. 2 Tho validity of the judgment directing a sale of the attached property is not affected by the rendering of a personal judgment against the dant: ' and it is held not to affect a sale of property that a final judgment was rendered by default. 4 The statute does not con- irmplate that the seizure of property by attachment is notice; notice must be given either by personal service or by publication, and : by publication it will not authorize a judgment on a new of action set up by way of amendment, and of which no no- tice was given by publication. The giving of notice in the manner pointed out by the statute is necessary to give a court jurisdiction to hear and determine the pending cause if there be no appearance. Unless this notice is legally given no court has power or jurisdic- tion to order a sale of the defendant's property though in cu*' '- by virtue of its seizure under a valid attachment. 5 A >tate has control over property within its limits; and the con- dition of ownership of real estate therein, whether the owner be stranger or citizen, is subjective to its rules concerning the holding, the transfer, liability to obligations private or public, and the modes ablishing titles thereto. It cannot bring the person of a non- r->ident vvithin its limits, but it may determine the extent of his title to real estate, and for the purpose of such determination may provide any reasonable methods of imparting notice.' A proceed- ing to enforce an equitable lien on real estate on account of ta\t-s and insurance paid is maintainable. 7 The court acquires jurisdic- tion, on notice by publication, to render a judgment affecting title to real estate in suits in the form of trespass to try title. The stat- utes show the purpose to be to provide, by that form of action, a method of vesting and divesting the title to real estate in all where the right or title or .interest and possession of land may be involved. The remedy was intended to be broad enough in its scope and effect to embrace all character of litigation that affects the title to real estate. The remedy is held to be . and that the court has power to render a judgment in so far as it affects title to the land. 8 Hochstadler v. Sam, 73 T. 315 (11 a W. Rep. 308). 1 v. BI-..W n. -^ ( -jv. A pp. ->i --J-J s. \V. K, T . >'>+)', St. L., A. & T. Ry. Co. v. Whitl.-y. 77 T El \V. Rep. 853). Bam-lii v. Wa^i.T. : Civ. App. W. Rep. 17). 4 Thomson v. Shackelford, 6 Civ. App. 1J1 ,M s. \V. Rep. 121). 5 Stewart v. Anders. -n. T" T. >- is s. W. 1; Am It v. Griggs, 134 U. S. 316; Hardy v. I<-:it> . M T. ViJ (19 a W. Rep. 778). : H.'i.lenheimer v. Lorin-. > Civ. A pp. 560 ('X S. \V U.-p. 99). 8 Hardy v. Beaty. H4 T. o6i (19 & W. Rep. 778); Sloan v. Thompson, 4 Civ. App. 419 (23 S. W. Rep. 6i:{). 328 CITATION BY PUBLICATION. [ 313. Garnishment of the debtor of a non-resident, followed by per- sonal service on the defendant without the state, authorizes a judg- ment for the amount of indebtedness admitted by the garnishee. 1 313. Presumptions in aid of the proceedings where the judgment is attacked collaterally. In some cases it is held that a person who invokes the protection of a judgment against a non-resident on attachment and publication must show affirmatively by the record that everything necessary to the jurisdiction was actually and rightly done. Other cases hold that the same presumption will be indulged in support of such a judgment as where there has been personal service. This seems to be the rule adopted in this state. 2 In either case the presumption that the court did not render a final judgment until it was author- ized to do so arises from the fact that to do otherwise would be a breach of duty, which is never presumed from the doing of an act which may have been legal. 3 Where the case is within the jurisdiction of the court, and no fact appears affirmatively in the record sufficient to defeat the jurisdic- tion, evidence aliunde, even where the judgm'ent is silent as to the process or its service, will not be heard to contradict the presump- tion of regularity; if the judgment itself finds and recites a valid notice or citation and service, that controls the rest of the record, otherwise if it recites an invalid citation, or names the precise char- acter thereof. If the judgment is silent, then the whole process in the record may be examined. 4 To determine whether the record shows affirmatively that there has been proper service, the whole of it should be taken together, and if that portion of it which relates to the question shows affirm- 1 Goodman v. Henley, 80 T. 499 (16 S. W. Rep. 432); Berry v. Davis, 77 T. 191 (13 S. W. Rep. 578); Strauss v. Hernsheim, 3 App. C. C., 408; Murphy v. Wal- lace, id., 430. 2 Buse v. Bartlett, 1 Civ. App. 335 (21 S. W. Rep. 52). It will be presumed, for example, that the sheriff followed the command of the writ, and published it in the newspaper of the nearest county, because there was no newspaper pub- lished in the county of the venue, where there is no proof to the contrary; also that the requisite number of publications was made, though the return did not give the dates, but only stated that it had been published the four successive weeks before the return day. This, of course, applies in case of a collateral at- tack on the judgment. 3 Stewart v. Anderson, 70 T. 588 (8 S. W. Rep. 295). 4 Martin v. Burns, 80 T. 676 (16 S. W. Rep. 1072). It is held in this case that as the record of the court showed that the publication was made on an affidavit that the residence of the defendants was unknown, it would not be presumed that they were non-residents. It is also held in Gunter v. Armstrong, 2 Civ. App. 599 (21 S. W. Rep. 607), that unless it affirmatively appears from the record that the defendants were non-residents, it will be presumed that they were citi- zens of this state, and that a judgment for costs was valid. See Lawler v. White, 27 T. 250. 313.] CITATION BY PUBLICATION. atively such character of service as is not authorized by law, or such defective service that a judgment by default rendered thereon would be void, and not voidable only, and the remainder of the record is silent upon the subject, not showing any finding of the court from whii-h it may be inferred that there was other service or an appear- ance, then this would be a case in which it affirmatively appears that the jurisdiction of the court did not attach. If, however, other - of the record, and particularly the judgment, recite the due service of process, or other facts which would give the court juris- diction of the person, then this would be a case in which it would affirmatively appear that the jurisdiction had in fact attached, and the general rule would apply, that in a collateral proceeding this recital in the record imports absolute verity. 1 The rule is, that al- though the judgment may recite that there was due service of pro- cess, yet if it point out the evidence or facts in the record on which that conclusion is based, and these show that the service or tho process was void, then the recital is of no avail. 2 iTreadway v. Eastburn, 57 T. 209; Hahn v. Kelley, 34 Cal. 407. 2 Fowler v. Simpson, 79 T. 611 (15 S. W. Rep. 082); Stegall v. Huff, 54 T. 193. But see Davis v. Robinson, 70 T. 394 (7 a W. Rep. 749); McCarthy v. Burtis, 3 Civ. App. 439 (22 S. W. Rep. 422). If the record shows affirmatively that publi- cation was not made for the period required by law, a purchaser at a sale under the judgment acquires no title; his claim of title may be attacked collaterally. Collins v. Miller, 64 T. 118. A personal judgment is not authorized where the record recites an appearance by an attorney appointed by the court. Heady v_ Bexar B. & L. Ass'n, 26 a W. Rep. 468. A judgment which recites that publication was made according to law and the order of the court is not void upon its face for want of publication, although no citation or writ of publication appears in the record. Hatch v. De- La Garza, 22 T. 176. CHAPTEE XIV. ABATEMENT AND DISCONTINUANCE OF SUITS. 314. Rule of the common law. 315. Death of plaintiff will uot abate suit, when. 316. Scire facias to executor, etc. 817. Death of defendant. 318. Where an executor or adminis- trator dies. 819. Sui'viving parties. 320. Death between verdict and judg- ment. 321. Marriage of female plaintiff. 322. Marriage of female defendant. 323. Suit to use of another. 324. Death of party to suit for inju- ries resulting in death. 325. Injuries not resulting in death. 326. Another action pending. 327. Where some of the defendants are not served. 328. Discontinuance in vacation. 329. Discontinuance as to a joint de- fendant served with process. 330. Discontinuance where defend- ant has filed a counter-claim. 331. Dismissal for want of prosecu- tion. 332. Effect of discontinuance. 333. Setting aside judgment of dis- missal. 334. Requisites of scire facias and re- turns. 335. Actions by and against railroad companies. 336. Death of party pending appeal. 337. Actions against receivers. 338. Judgment against a dead person. 339. Party becoming insane before verdict. 314. Rule of the common law as to abatement by death. It is a general rule of the common law that the right of action for torts unconnected with contract does not survive the death of the wrong-doer, but is determined by it, the maxim of the common law being actio personalis moritur cum persona. 1 In the case of injuries to the person, whether by assault, battery, false imprison- ment, malicious prosecution, slander, or otherwise, the rule at com- mon law is that, if either the party who received or committed the injury die, no action can be supported either by or against the exec- utors or other personal representatives. 2 Actions for injuries to personal property are not abated by the death of either party, but survive in favor of or against the executor or administrator for the 1 By the act of January 20, 1840, which took effect March 16, 1840, the common law of England was adopted as a rule of decision, so far as it was not incon- sistent with the constitution and laws of this state. R. S. 3258. By the act of December 20, 1836, the common law of England, when not inconsistent with the laws of this state, was adopted in its application to juries and evidence. R. S. 2299. 2 1 Chit. PL 86; Watson v. Loop, 12 T. 11; Taney v. Edwards, 27 T. 224; Cherry v. Speight, 28 T. 503; Gibbs v. Belcher, 30 T. 79; Harrison v. Moseley, 31 T. 608. 315.] ABATEMENT AND DISCONTINUANCE OF SUITS. 331 actual injury done or value of the property converted. 1 The com- mon-law rule is changed by statute, so that causes of action for personal injuries, whether they result in death or not, and whether the injury be to the health, reputation or person, survive to the -i-ntatives of the person injured. - An action against a city to recover damages for injuries caused !>v a defect in a street abates at common law. 3 And such a cause. of action arising under a statute of another state would not be en- ed here in the absence of a statute. 4 ?' 315. Death of plaintiff not to abate suit. AY here in any suit the plaintiff shall die before verdict, if the of action be one which survives, the suit will not abate by reason of such death, but the executor or administrator., and if there be no administration, and no necessity therefor, then the heir of such deceased plaintiff may appear, and upon a suggestion of such death being entered of record, in open court, may be made plaintiff in such suit, and the suit may proceed in his name. 5 The ice of necessity for administration must affirmatively appear in a suit by heirs of a deceased plaintiff. 6 If plaintiffs death has not been suggested, a judgment in favor of his administrator is erroneous. 7 The death may be suggested by the defendant, and if proper parties are not made within a reasonable time the suit may be dismissed. 8 It seems that the administrator may continue the prosecution of the suit without any formal order by the court. 9 Suggestion of plaintiff's death may be made after the close of the niony. 10 1 1 Chit PI. 86: Ferrell v. Mooney, 33 T. 219. Vindictive damages are not re- coverable from the estate of a deceased trespasser, no matter how aggravated the trespass may have been. Wright v. Donnell, 34 T. 291. 2 See 325, infra, Rit/ v. ( ity of Austin, 1 Civ. App. 455 (20 S. W. Rep. 1029). < Tex. & Pac. Ry. Co. v. Richards, 68 T. 375 (4 a W. top. 627). RS. 1246. G., H. & S. A. Ry. Co. v. Kelly, 26 S. W. Rep. 470. 7 Gowings v. Lord. 4 T. 483. - Alexander v. Barfield, 6 T. 400. Thompson v. McGreal. 9 T. 'Meade v. Rutledge, 11 T. 44. Where both plaintiffs, partners. die, the repre- sentatives of both may be made parties. Blackmail v. Green. 17 T. Suit was brought in the name of a person after his death, but no servioe was had on the defendants. At a subsequent term the administrator t" the plaint nl' was made a party, and filed an amended petition, after which the defendants were cited to answer. It was held that a plea in abatement, alleging the death of the plaintiff at the time suit was brought, was properly overruled, hut that the administrator should have been required to pay all costs that had accrued. Finlay v. Merriman, 39 T. 56. 332 ABATEMENT AND DISCONTINUANCE OF SUITS. [ 316, 317. 316. Scire facias to executor, etc. Where a plaintiff dies and no appearance and suggestion are made at the first term of the court thereafter, it is the duty of the clerk^ upon the application of the defendant, his agent or attorney, to issue a scire facias for the executor, administrator or heir of the de- cedent, requiring him to appear and prosecute the suit ; and if, after service of such scire facias as required in the case of citations, the executor, administrator or heir shall not enter his appearance on or before the appearance day of the succeeding term of the court, the defendant may, on motion, have the suit discontinued. 1 317. Death ot defendant. Where in any suit the defendant shall die before verdict, if the cause of action be one which survives, the suit shall not abate, but, upon a suggestion of such death being entered of record in open court, or upon a petition of the plaintiff, representing that fact, being filed with the clerk, it is the duty of the clerk to issue a scire facias for the executor or administrator, and in a proper case for the heir of such deceased defendant, requiring him to appear and defend the suit ; and upon the return of such service the suit will proceed against the executor, administrator or heir, and such judg- ment may be rendered therein as may be authorized by law. 2 The death of a defendant in an action of debt merely suspends the action until the legal representative makes himself or is made a party. The action then proceeds, not as a new suit dating from its revival, but as an action pending from the date of its original insti- tution against the deceased. An action of debt cannot be revived against the heir unless the suit might have been brought originally against him. But if there is no administration upon the estate of a deceased defendant, and the facts show that none is necessary or desired by those interested, and especially if, owing to the lapse of time, the statute forbids the grant of administration and the heirs are in possession of the property, they are in such sense the repre- sentatives of their ancestor that a pending action may be revived or an original suit brought against them. 3 1 R, S. 1247. If a suit be dismissed for want of prosecution, it may be rein- stated at the next term on the discovery that the plaintiff was dead when the order was made. It is held that when the plaintiff dies no other proceedings can be taken by the defendant except a scire facias to his representatives, after service of which the suit may proceed to trial, or on failure to prosecute the suit may be dismissed. Armstrong v. Nixon, 16 T. 610. But the rule is that a judgment entered in a case in which there is no suggestion of death is only voidable, and may become valid and binding unless the proper proceedings are taken within proper time. Harrison v. McMurray, 71 T. 122 (8 S. W. Rep. 612). 2 R. S. 1248. McCampbell v. Henderson, 50 T. 601; Grayson v. Winnie, 13 T. 288; Thomas v. Jones, 10 T. 52; Hearne v. Erhard. 23 T. 60. A scire facias issued without sug- 1 s . ::i'.. n AM DuanrninjAVoi ra M-ITS. 333 ? 318. Where executor, etc., diea. Where an executor or administrator shall be a party to any suit, whether as plaintiff or defendant, aivl shall die or cease to be such itor or administrator before verdict, the suit will not thereby abate, but may be continued by or against the person succeeding him in the administration, or by or against the heir, where there is no administration and no necessity therefor, upon like procee* _r had as are provided in preceding sections of this chapter; or the suit may be discontinued as provided in section 3 1C, supra}- ' 319. Surviving parties. Where there are two or more plaintiffs or defendants, and one or more of them die, if the cause of action survive to the surviving plaintiffs and against the surviving defendants, the suit will not abate by reason of such death, but upon suggestion of such death _r entered upon the record the suit may, at the instance of either party, proceed in the name of the surviving plaintiffs or against the surviving defendants, as the case may be. 2 When the maker and the indorser of a note have been sued in the same action, if the maker dies during the pendency of the suit, the suit abates as to him. and it is not necessary that his administrator be made a party defendant, although his estate remains liable for the debt. In such case the plaintiff may proceed to judgment ist the indorser alone, and the case is not within the inhibition of the statute, 3 which provides that no judgment shall be rendered st an indorser unless, at the same time, judgment be also ren- dered against the principal, except in cases where the residence of the principal is unknown, etc. 4 The heirs and representatives of a ised plaintiff, in an action of trespass to try title by tenants in common, ne.-d not be brought in. 5 gestion of death, or a petition by the plaintiff, may be quashed on motion of the sentutiv.-. Harilt-y v. Lemnion, 2% T. 1-V). Where defendant dies after service of process, and the petition is held ii on exceptions by the legal representative for failure to allege the resi of the defendant, it is error to permit plaintiff to Ale an amendment alleging the residence of the defendant: surli an amendment could not relate back so as to cure substantial defects in the original |*-tition. Liu Mi. -Id v. Fry, 39 T. 299. The death of one defendant who resides in the county in which the suit is brought, and dismissed as to him, will notdefeat the juri.Miiction as to a d> ant who r.'-i'li - in another county. Lewis v. Davidson, 51 T. 2~>1. ' 1R S. KM'.*. When- the plaintiff who sues as administrator resigns or is re- moved or discharged, the defendant should plead tiie fact by a plea sin* ontinuance. Hall v. Pearman, 20 T. 168. SR.S. 1250. R.a i2. i Aldridge v. Mardoff, 32 T. 204. 4 Watrous v. McGrew, 16 T. 506: Croft v. Rains 10 T. 520; May v. Slade, 24 T. Musselman v. Strohl, S3 T. 473 (It S. W. Rep. 857). 334: ABATEMENT AND DISCONTINUANCE OF SUITS. [ 320, 321. On the death of a partner pending suit brought in the firm name, it is not necessary to bring in the representatives of the deceased. partner. 1 320. Death between verdict and judgment. If in any suit either party die between verdict and judgment,, the judgment may be entered as if both parties were living. 2 The plaintiff in a suit died after verdict and judgment, but before the de- termination of a motion for a new trial filed by defendant. It is suggested that the necessary bills of exception and statements of facts may be made up and filed in such case, but that if an appeal were taken immediately after the overruling of the motion for a new trial, without making the legal representative of plaintiff a party, it would be necessary to hold the proceedings upon and sub- sequent to the motion for new trial absolutely void. The case hav- ing been brought up by writ of error, however, duly and legally sued out and served upon the administrator, all the proceedings subsequent to the original judgment could be held void, and such judgment and proceedings still be before the court for decision. 3 321. Marriage of plaintiff feme sole. A suit instituted by a feme sole will not abate by her marriage, but upon a suggestion of such marriage being entered on the rec- ord, the husband may make himself a party to the suit and prose- cute the same as if he and his wife had been originally plaintiffs in such suit. 4 It is said that this statute contemplates that the sug- gestion of marriage shall be made by the plaintiff, and is for the benefit of plaintiff, but that if the plaintiff fails to make the sug- gestion the defendant may make it, and, upon proving the mar- riage, the suit should proceed no further until the husband is made a party, or cause be shown which would authorize the wife to pro- ceed without him. 5 The proper practice would be to present the question before the trial, in a motion or suggestion in proper f orin,, and not during the progress of the trial. 6 ^ 1 Dunman v. Coleman, 59 T. 199. The case may proceed to judgment where the death of the partner takes place pending an appeal. But the court will, it seems, on motion of the surviving partner or the appellee, grant a scire facias to bring in the legal representatives. Gunter v. Jarvis, 25 T. 581. a R. S. 1251. It seems that this article applies to tort actions which abated at common law. See Gibbs v. Belcher, 30 T. 79; Cherry v. Speight, 28 T. 503. 3 Wamble v. Graves, 1 App. C. C., 481. 4 R. S. 1252. 6 Breland v. Barren, 3 App. C. C., 465. San Antonio St Ry. Co. v. Cailloutte, 79 T. 341 (15 S. W. Rep. 390). In this case a widow sued for damages for her son's death, and married pending the suit It was held that the husband should have been made a party on sugges- tion of the marriage. 322-324.] ABATEMENT AND DISCONTINUANCE OF SUITS. 335 322. Marriage of defendant feme sole. A suit instituted against a feme sole does not abate by her mar- riage, but upon a suggestion of such marriage being entered on the record in open court, or upon a petition representing that fact being filed with the clerk, it becomes his duty to issue a scire facias to the husband of such defendant. Upon the return of the scire facias ite.l, the husband is made a party to such suit, and it proceeds as if the husband and wife had originally been defendants in the suit. 1 .-;' 323. Suit to the use of another. When a plaintiff, suing for the use of another person, shall die before verdict, the person for whose use the suit was brought, upon such death being suggested on the record in open court, may prose- cute the suit in his own name, and is responsible for costs in the s;tine manner as he would have been had th suit been commenced by him. 2 If a suit be in the name of one person, professedly on its face for the benefit of another, on the death of the nominal plaint* iff the suit may, proceed in the name of the beneficiary without re- viving in the name of the representatives or heirs. If the suit appears to be for the benefit of plaintiff, there is no authority for allowing it to proceed in the name of an alleged beneficiary or as- signee until the representatives or heirs of the deceased plaintiff have been cited and allowed an opportunity to admit or contest the right claimed.* 324. Death of party to suit for injuries resulting in death. In cases arising under the provisions of the statute relating to injuries resulting in death, the suit does not abate by the death of either party pending the suit; but in such case, if the plaintiff dies, where there is only one plaintiff, some one or more of the parties entitled to the money recovered may be substituted and the suit cuted to judgment in the name of such party or parties, for the benefit of the persons entitled; if the defendant dies, his execu- tor, administrator or heir may be made a party and the suit prose- cuted to judgment as provided for in previous sections of this chapter. 4 Every person, corporation or company that may commit a homicide, through wilful act, or omission, or gross neglect, is re- 1 R S. 1253. 2 R S. 12.">4. In a suit by the legal owner of a promissory note for use of the administrator of an estate, tho in. ;i[.;i<'ity of th- administrator to siu> or t-> a<-t in capacity of administrator cannot be pleaded in abatement. Hii>>n v. Dilla- hunty. 38 T. 585. Moore v. Rice. 51 T. 289; Price v. Wih-y. 19 T. 142: Gillespie v. Redmond, 13 T. 9; O'Neal v. Tisdale, 12 T. 40; Clark v. Hopkins, 84 T. 189. 4 R S. 1255, 3" \rtiole 3026 provides for bringing in the executor or administrator of a deceased defendant, omitting the words or / 336 ABATEMENT AND DISCONTINUANCE OF SUITS. [ 325, 326. sponsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide. 1 The action may be commenced and prosecuted, although the death shall have been caused under such circumstances as amount in law to a felony, and without regard to any criminal proceeding that may or may not be had in relation to the homicide. 2 If the sole plaintiff die pending the suit, and he is the only party entitled to the money recovered, the suit will abate. 3 325. Injuries not resulting in death. Causes of action upon which suit may be brought by an injured person for personal injuries other than those resulting in death, whether such injuries be to the health or reputation or to the per- son of the injured person, do not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued ; but in the case of the death of either or both, the cause of action survives to and in favor of the heirs and legal representatives of such injured person, and against the person, re- ceiver or corporation liable for such injuries and his legal repre- sentatives ; and so surviving, such cause may be thereafter prosecuted in like manner and with like legal effect as would a cause of action for injuries to personal property. 4 326. Another action pending. The rule of law which prohibits the prosecution of two suits at the same time requires that they shall be for the same cause of ac- tion. The rule is enforced where the plaintiff can obtain the full benefit of judicial process in the first suit instituted. It does not operate to restrict or restrain either party from maintaining any additional suit or suits which may be essential to the protection or enforcement of a right which may not be assured in the first suit. 5 The plaintiff must be the same in both suits. Thus, a former suit pending on the same cause of action in the name of the wife alone is not a good plea in abatement to a suit in the name of husband and wife. 6 To sustain the plea the former suit must have been pending at the commencement of the second suit, and if it has been dismissed or abandoned at the hearing, the plea will not be sus- tained. 7 It is held that a plea of a former suit, if sustained, does i Const., art. XVI, 26. 2R. S. 3020. *R.S. 3025. 4 Acts 1895, p. 143: R S. 3353a. 5 Bryan v. Alford, 1 App. C. C., 85; Langham v. Thomaso'n, 5 T. 127. 6 Langham v. Thomason, 5 T. 127. 7 Hope v. Alley, 11 T. 259; Connor v. Saunders, 29 S. W. Rep. 1140; Trawick v. _'7.] AI;A II.MKNT AM* i>i-r >N nxt A: . :; 17 n<>t abate the second suit, but only puts plaintiff to his i>l. which suit hf will prosecute, :iml requires him to pay the costs of the suit abandoned. 1 A plea of a suit ponding in another county on the same cause of action presents no ground in bar or abatement of an action in this state. 1 327. Where some of defendants not served. When? there are several defendants in a suit, and some of them are served with process in due time and others not so served, the plaintiff may either discontinue as to those not so served and pro- ceed against those that are, or he may continue the suit until the Martin-Brown Co., 74 T. 5 (12 S. W. Rep. 316); Oldham v. Erhart, 18 T. 147. An abandonment of the claim made in reconvention or cross-hill in another suit setting up the interest of the assignor of plaintiff in & legacy operated to defeat a plea of the pendency of such suit upon the same matter pleaded by the de- fendants. McNVill v. Masterson, 79 T. 670 (15 S. W. Rep. 673). That a former suit was pending when a plea in reconvention was filed upon the same cause of action will not be ground for abatement to the plea when it is shown that be- fore the hearing l-low the former suit had been dismissed. Trawk-k v. Martin- Brown Co., 74 T. 522 (12 S. W. Rep. 216). 1 Payne v. Benham, 16 T. 364. If the former action has been dismissed at the time the plea is acted upon, it is held, in this case, that the question becomes one of costs. The court say (16 T. 867): "We are aware that by the strict rules of practice in the courts of common law the facts so pleaded would have abated the suit last commenced. We, however, regard it as a question of costs, not at all involving the merits of the cause of action. If the two suits had been still pending at the time the plea in abatement was filed, we would have required the party to dismiss one and pay the costs before proceeding to trial on the other. ... If the costs of the first suit had not been paid when it was dis- missed, and that fact had been made known to the court, a rule could have been obtained requiring the costs to be paid or secured before the party would have been permitted to proceed with the suit." This ruling is approved in Trawick v. Martin-Brown Co., 74 T. Y,"J. 525 (12 & W. Rep. 216), and is held to be in ac- cordance with the weight of recent cases citing Beals v. Cameron. 8 How. Pr. 414; Schmidt v. Brown, 10 La. Ann. 26; Marston v. Laurence, 1 Johns. Cases, 897. A sheriff under an execution seized a herd of stock horses on the range; on the same day and under the same writ he seized other work horses, taking them from the plow and wagon of the person claiming them. Forthwith the claim- ant established his claim to the work horses, and by separate action sufl for damages for the seizure of the horses on the range, and it was held that the second action was not barred by the first, there being two separate and distinct trespasses. MiMikin v. Smoot, 71 T. 759 (12 a W. Rep. 59). In an attachment suit the defendant reconvened for damages for illegally seizing the goods of defendant under the attachment. Prior to *he reconven- tion the defendant had brought suit for damages for the seizure. The plaintiff pleaded the pendency of the independent suit for damages against the r. con- vention. On the trial the plaintiff urged exceptions to the plea in reconvention, which were ruled upon before the plea in abatement was hoard, and it was held that the action of the court upon the exceptions was not a waiver of the plea in abatement, and especially so wlu-n no preemptions were taken at the time. Trawick v. Martin-Brown Co., 74 T. 522 (12 S. W. Rep. 216). "Mex. Cent. Ry. Co. T. Charman, 24 & W. Rep. 958; Drake v. Brander, 8 T. 351. 23 333 ABATEMENT AND DISCONTINUANCE OF SUITS. [ 327. next term of the court and take new process against those not served ; and no defendant against whom any suit may be so discon- tinued shall be thereby exonerated from any liability under which he was, but may at any time be proceeded against as if no such suit had been brought and no such discontinuance entered. 1 It seems that a discontinuance is authorized by this article as to defendants not served, though the cause of action be joint and not several. 2 In any case in which a defendant need not have been joined where the liability of the other defendants may be enforced without his presence in the suit, the plaintiff may dismiss as to him, and only those defendants whose liability is such that they might be injuriously affected are entitled to object. 3 A discontinu- ance may be entered as to a joint maker of a note not served. 4 "Where a judgment has been reversed and the cause remanded for want of service on some of the defendants, plaintiff may discontinue as to those not served, and take judgment by default against those who have not answered. 5 Where there are two or more defendants, and there appears to have been service on all but one, and there is no return as to him, it is error to include him in a general judgment by default; the rec- ord should show some action as to him, by discontinuance or other- wise. It is suggested that the practice might be different where those who are served appear and answer. 6 An error in not discon- tinuing as to a Defendant not served will not affect the validity of the judgment against one who was served. 7 And where the one served appears, it is not error to render judgment final by confes- sion against him without disposing of the case as to the one not served. 8 It is held that the recital in the record of the appearance and trial as to those served is, in effect, a discontinuance as to those R. S. 1256. 2 Ellis v. Park, 8 T. 205; Williams v. McNeil, 5 T. 381; Hawkins v. Tinnen, 10 T. 188. 3 Cook v. Phillips, 18 T. 31; Austin v. Jordan, 5 T. 130; Anderson v. Duffield, 8 T. 237;-Horton v. Wheeler, 17 T. 52; Shipman v. Allee, 29 T. 17. 4 Robinson v. Mattison, 25 T. Sup. 451. Where the suit was on a joint and sev- eral note, and there was return of service on one, it was held that plaintiff might dismiss as to the other, though there was no return showing whether he had been served or not. Cook v. Phillips, 18 T. 31. So in a suit against the master and unknown owners of a vessel, where the master answered, but it did not appear whether citation had issued for the owners or not, it was held that a nolle prosequi was properly entered after verdict as to them. Forbes v. Davis, 18 T. 268. "Underbill v . Thomas, 24 T. 28a 6 Rogers v. Harrison, 44 T. 169. * On error by all the defendants in such a case, plaintiff may dismiss as to those not served. Chandler v. Tanner, 20 T. 1. 'Reynolds v. Adams, 3 T. 167. 8 Burton v. Varnell, 5 T. 139. 28, 329.] Ai r AND DISCONTINUANCE OF SUITS. 339 not served. 1 If one is joined as a defendant who is not liable, some disposition, of the case must be made as to him before entering judgment against those who are liable. 2 (28. Discontinuance in vacation. The plaintiff may enter a discontinuance on the docket in vaca- tion, in any suit wherein the defendant has not answered, on the pavment of all costs that have accrued therein.* 329. Discontinuance as to a defendant served with process. The court may permit the plaintiff to discontinue his suit ; one or more of several defendants who may have been served with process, or who may have answered, when such discontinuance would not operate to the prejudice of the other defendants; but no such discontinuance will in any case be allowed as to a principal obligor, except in the cases provided for in article 1257 of the li 1 Statutes. 4 This statute is permissive, and a discontinuance may be refiiM-.l whenever it would operate to the prejudice of the party as to whom it is sought. "Whether or not a discontinuance may be entered in the appellate court in any case as to a defendant who has made de- fense in the court below, and has prosecuted an appeal, it is held that it ought not to be permitted in a case in which such defend- ant may be directly or indirectly injuriously affected thereby. 5 In a suit upon a joint and several note, where all are served and an- swer jointly, plaintiff may discontinue as to one, provided no right of the others be impaired. 6 Objection to a discontinuance as to one 1 Houston v. Ward, 8 T. 124; Greenwood v. Watts, 1 App. C. C., 114 A plea of coverture by one not served with process, and a discontinuance as to her, held proper. Shipman v. Allee, 29 T. 17. 2 Young v. Davidson, 81 T. 153. Suit was brought to foreclose a chattel mort- gage against a principal and surety on a note declared on. The surety was not served with citation, nor named in the judgment. The appeal bond by the plaintiff did not name him. and it was held that it would be presumed that suit was dismissed as to him. First Nat Bank of Decatur v. Houts, 85 T. 69 (19 S. W. Rep. 1080). 'R&1258. * R S. 1259. See the chapter on Parties for discontinuance as to a principal obligor; also Moore v. Janes, 6 T. 227; Look v. Henderson, 4 T. 803: Rutlu-rfunl v. Harris, 22 T. 106; Barnett v. Taylor, 80 T. 453. Where it is recited in the judg- ment that the suit was dismissed as to a defendant principal because he was insolvent, the surety cannot complain on appeal, unless it be shown that the suggestion or allegation of insolvency was not sufficiently made to the court, or was not true in fact, either by resistance at the time, for cause shown, or by plea, which should be allowed in the nature of a plea in abatement to the suit, as left by the improper dismissal of the principal. Hooks v. Bramlette, 1 A pp. c. c.. sea tnick v. Noel, 64 T. 406. v. Wheeler, 17 T. oi 340 ABATEMENT AND DISCONTINUANCE OF SUITS. [ 330. joint defendant must be made in the lower court, by motion, excep- tion or plea. 1 330. Discontinuance where defendant has filed a counter-claim. Where the defendant files a counter-claim seeking affirmative re- lief, the plaintiff will not be permitted, by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such counter-claim. 2 At any time before the jury have retired, the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. 8 It is only when the defendant by a counter-claim seeks some af- firmative relief that the right of the plaintiff to discontinue the entire cause is forbidden. Obviously the defendant only seeks such affirmative relief w-hen by his own pleadings he prays for some specific recovery that cannot be given to him under pleadings that are strictly defensive and that serve only to compel the plaintiff to prove his own cause of action. The defendant must not only pray for affirmative relief, but he must state facts showing that he has a cause of action. If the defendant is doing no more than resisting the plaintiff's recovery, the statutes recognize the right of the plaintiff, for his own protection, to dismiss the suit. 4 If a petition in intervention shows such interest in the subject-matter of the liti- gation between the parties as would entitle the intervener to main- tain an independent action against the plaintiff or those represented by him, and to have the relief sought, in whole or in part, then the intervention would not be affected by a dismissal of the action by plaintiff. If no such independent cause of action be shown, it is not error to dismiss the intervention on dismissal by plaintiff. 5 1 Gamble v. Talbot, 2 App. C. C., g 730. Where joint obligors are sued, it not appearing that any one of the defendants is a principal, it is not error that the plaintiff dismissed as to one of such defendants after he was served with cita- tion. Keesey v. Old. 82 T. 22 (17 S. W. Rep. 928). Where plaintiffs dismissed as to certain defendants who claimed an interest in the property in controversy, it was within the discretion of the court to per- mit the parties so dismissed to be made defendants upon application of the re- maining defendants. Curtis v. Wilson, 2 Civ. App. 646 (21 S. W. Rep. 787). Though in trespass to try title a formal judgment should be rendered in the district court, on the disclaimer of a party defendant, as to such defendant, yet if the cause proceeds to trial and judgment without further notice of the de- fendant who disclaims, the appellate court will, on appeal, regard the action as having been dismissed as to him, notwithstanding the failure of the record to show the fact. Gullett v. O'Connor, 54 T. 408. 2 R. S. 1260. 3 R. S. 1301. h.Mrinsr an application that the parties ha-1 announced themselves realy for trial, and had made some progress in the se- >n of a jury, the impanelment of which could not be completed for want of the requisite number of jurors, in consequence of which no trial could then be had. 1 i 346. Matters of practice. An order for a change of venue is not such a final judgment as will authorize an appeal* So also as to an order remanding a v on the ground that a change of venue was not authorized. 1 Objec- tions to a change will not be heard for the first time on appeal. 1 And irregularities, such as ordering a change before defendant is cited, or the making of an entry nunc pro tune of an order made before the change was ordered, will be cured by an appearance and plea to the merit- Where a change of venue was ordered on the application of one of two defendants, and the case was subsequently dismissed as to him, it was held that the jurisdiction attached as to the remaining defendant; or if not, he was bound to a prompt and timely asser- tion of his privilege.* Salinas v. Stillman. 25 T. 12. Vance v. Hogne. 35 T. 432. J Wygall v. State Treasurer. 33 T. 333. Love v. Henderson, 42 T. 520. Irews v. Beck. 28 T. 455. Bohannon v. Pearson, 2 App. C. C. 621: Stafford v. Blum. 7 Civ. App. 283 (87 8. W. Rep. 121 All the defendants in a consolidated cause must join in a motion for a change of venue, unless it be made to appear that those who apply are the only real defendants. Mills v. Paul, 30 & W. Rep. 553. CHAPTER XVI. SECURITY FOR COSTS. 347. Clerk may require security. 848. Defendant or any officer may re- quire security. 349. Judgment on cost bond. 850. Affidavit of inability to give se- curity. 351. Security not required, when. 852. Intervener and defendant may be required to give security. 353. Costs secured by other bonds. 354. Matters of practice. 355. Suit may be dismissed for non- compliance with rule for costs. 347. Clerk may require security. The clerk may require from the plaintiff in a suit security for costs before issuing any process therein, but he must file the peti- tion and enter the same properly on the docket. 1 In proceedings for the removal of county and certain district offi- cers, the clerk, on the order for citation being granted, may demand of the relator security for costs as in other cases. 2 A next friend may be required to give security, or file an affidavit in lieu thereof. 3 348. Defendant or any officer may require security. The plaintiff in any civil suit may, at any time before final judg- ment, upon motion of the defendant or any officer of the court in- terested in the costs accruing in such suit, be ruled to give security for the costs ; and if such rule be entered against the plaintiff and he fail to comply therewith on or before the first day of the next term of the court, the suit will be dismissed. 4 The statute contemplates that a motion for security for costs may be made and the rule granted "at any time before final judgment." It was error to refuse a motion for the reason that it came too late, when made after the plaintiff had announced ready for trial. But where verdict and judgment were for the plaintiff the error was immaterial, no injury appearing from the ruling. 5 Appellee, plaint- iff in the justice's court, cannot be required to give security on ap- peal to the county court, on motion of appellant. The same ruling is made where the case is removed by certiorari? 1 R. S. 1439. 2 R. S. 3553. 3 Acts 1893, p. 3; R S. 3498tt. R.S. 1440. L & G. N. Ry. Co. v. Williams, 82 T. 342 (18 8. W. Rep, 700). 6 Tex. & Pac. Ry. Co. v. Cook. 2 App. C. C., 659, overruling Tex. & Pac. Ry. Co. v. Taylor, 2 App. C. C., 418; Pierce v. Pierce, 21 T, 469, 7 Foreman v. Gregory, 17 T, 193. .">0.] SECURITY FOE COSTS. 353 f49. Judgment on cost bond. All l)i. nds given as security for costs shall authorize judgment itirninst all the obligors for the costs, to be entered in the final judg- ment of the cause. 1 The statute does not expressly require a bond, but only that security be given; and it is held that a deposit with the clerk of an amount of money satisfactory to him, or sufficient to cover the costs of the suit, is a sufficient compliance with the rule to furnish security. 2 Where the bond given is defective, a new lond mav be given. 3 Article 1501, Paschal's Digest, read: "All bonds given as security for costs shall have the force and effect of judgments against all obligors for the said costs;" and it was held not necessary, even if permissible, to enter judgment against the sureties for the costs ad- judged against plaintiff. 4 ? 350. Affidavit of inability to give security. A party who is required to give security for costs may file with the clerk an affidavit that he is too poor to pay the costs of court, and is unable to give security therefor, and it then becomes the duty of the clerk to issue process and to perform all other services required of him in the same manner as if the security had been given. The clerk has the right to contest, by proof or otherwise, the inability of the party to pay costs, or his inability to give secu- rity for the same, such contest to be tried by the judge at the next term after the filing of the contest. 5 It is held that the necessary parties plaintiff to the suit must make the affidavit under this arti- cle; and in a suit by a married woman in which she is properly joined by her husband, the affidavit must be made by the husband. 6 The affidavit supplies the place of a cost bond; 7 it performs 1 R S. 1441. 2 Henderson v. Riley, 1 App. C. C., 48a Plaintiff stated in his affidavit that he was unable to give security for or to make a deposit of a sufficient amount of money to pay the costs; also that he could not swear that he was unable to l>;iy the costs as they accrued; that he had paid all costs that had been incurred up to date, except a small balance, and that to cover this he had made a deposit with the clerk. This was a reasonable and substantial compliance with the -tatute. Long v. McCauley, 3 S. W. Rep. 689. Herndon v. Rice, 21 T. < Cravens v. Wilson, 48 T. 321. 5 R S. 1442. When the proper affidavit is filed, the clerk on issuing process niu^t indorse thereon the words " pauper oath filed," and sign his name offi- cially below them, and the officer in whose hands the process is placed must serve it the same as in other cases. R S. 1421. 6 Crockett v. Maxey, 4 App. C. C., 292. The affidavit may be made by the plaintiff or by his attorney. Hickey v. Rhine, 16 T. 576; Brooks v. Hicks, 20 T. 666. It may be written by the attorney, and sworn to by the client before him, he being a notary public. Ryburn v. Moore, 72 T. 85 (10 S. W. Rep. 393). " Mo. Pac. Ry. Co. v. Richmond, 73 T. 568 (11 S. W. Rep. 555). 23 354: SECURITY FOR COSTS. [ 351-354v all the functions of a bond in keeping a case in court ; if defective in form and substance, that defect should be pointed out in a motion made to dismiss the cause for insufficiency in the affidavit. 1 The statute permits the plaintiff to prosecute his suit without giving se- curity, but does not release him from liability for his own costs, or for all the costs if judgment goes against him. 2 The clerk is the only party in a court of record entitled to con- test an affidavit of inability to give security for costs, and if he: refuses to join, the contest is properly stricken out. 3 351. Security not required, when. Executors, administrators and guardians appointed by the courts of this state are not required to give security for costs in any suit brought by them in their fiduciary capacity. 4 The state is not re- quired to give security in any case. 5 352. Intervener and defendant may be required to give security. The provisions relating to security for costs by the plaintiff apply to an intervener, and to a defendant who seeks a judgment against the plaintiff on a counter-claim after the plaintiff shall have dis- continued his suit under the statute relating to discontinuance. 6 "Where defendant files a counter-claim, asking affirmative relief, a discontinuance by the plaintiff will not prejudice his right to be- heard on such claim. 7 The statute does not require a defendant to give a cost bond in case he should reconvene for damages in a suit against him. In the absence of a statute giving the right to require such a bond, the court would not have authority to require it. 8 353. Costs secured by other bonds. When the costs are secured by the provisions of an attachment or other bond filed by the party required to give security for costs, no further security is required. 9 354. Matters of practice. In order to obtain a rule for security, a motion should be made and entered in the motion docket; and when the order is made, the 1 Hubby v. Harris, 63 T. 456. An affidavit which, in describing the cause, gave the proper name of the plaintiff and the proper name of one of the defendants, omitting the name of another defendant, was sufficient, being regular in other respects. 2 McPherson v. Johnson, 69 T. 484 (6 S. W. Rep. 798). 3 Weatherf ord v. Duncan, 31 S. W. Rep. 562. R.S. 1443. 8 R S. 1444. 8R.S. 1445. 7 R. S. 1260. 8 Yarborough v. Weaver, 6 Civ. App. 215 (25 S. W. Rep. 468). R.S. 1446. 355.] 8ECUKITY FOB COSTS. 355 rule should be expressed in distinct and appropriate terms, and en- tered in the minutes of the court. The entry of "rule for costs" on the judge's docket is not a sufficient foundation to support a judg- ment of dismissal. 1 It seems that if the security furnished is found to be insufficient, or otherwise objectionable, additional security may be called for, on due notice to the party. 2 It is error to dis- miss for failure to give security where no rule has been entered requiring security. 3 355. Suit maybe dismissed for non-compliance with rule for costs. W here the plaintiff has been required to give security for costs, the suit will be dismissed if he fails to comply with the rule on or before the first day of the next term. 4 The plaintiff must have had actual notice of the rule for security for costs, and he is not bound to take notice of a motion filed in the papers of the cause. 5 Security can be given at any time before the case has been actually dismissed. 6 An application to reinstate the case, on a reasonable showing- why the rule was not complied with, ought to be granted. 7 But the matter is within the discretion of the court. 8 It is not error for which, on appeal, a reversal may be had, to refuse to postpone a case when reached for the purpose of enabling the plaintiff to comply with the rule, or to overrule a motion to reinstate after the order of dismissal. 9 1 Shackleford v. Wallace, 4 T. 239. 2 Holshausen v. Hollingsworth, 32 T. 86; Houston v. Roberts, 10 T. 348. s Marks v. Fields, 29 S. W. Rep. 664. f la\v. But the causes of action so united must all belong to one of these ;ul must affect all the parties to the action, and not require different places of trial, and must be separately stated. In this state the plaintiff states the facts constituting his cause of action, and relief is administered without reference to any dis- tinction between actions at law and suits in equity. 1 Xo general rules or tixed principles have been stated by the courts of this state; at least none of any value as guides in the absence of established precedents. The rule against multiplicity of suits is said to be, within reasonable limits, the cardinal principle as to the joinder of parties and causes of action; but it is said that each case must be governed by its own circumstances, and whether it be multifari- ous or not must be left in a great measure to the sound discretion of the court.- ?' 360. General principles as to joinder of causes of action. The splitting of causes of action and the multiplication of suits a iv discountenanced in this state, and parties are required to settle their controversies in a single suit, if practicable. 3 Multifariousness in a petition is very seldom a ground of exception. 4 The same .strictness of pleading in regard to joinder of parties and causes of action does not prevail in Texas as is observed in states where the distinction between law and equity forms of action is recognized. A petition may embrace so many distinct and separate demands as to be objectionable on the ground of multifariousness, but the ob- jection of multifariousness is not favored ; it is entitled to no lib- erality of construction. 9 Each case must be governed by its own circumstances, and the matter is left in great measure to the sound discretion of the court. The rules of chancery practice will be re- garded only when they may be deemed reasonable, and harmonize i R. S. 1183. 1191. See R. a 1098, 1106, 1162; Const, art V, 8. 2Clegg v. Varnell, 18 T. 294. 3 1. & G. N. Ry. Co. v. Donalson, 2 App. C. C., 238; Pitts v. Ennis, 1 T. 604; Francis v. Northcote, 6 T. 185; Smith v. Power, 2 T. 57: Blair v. Gay, 33 T. r>7. Haggerty v. Scott, 10 T. 535; Ponton v. Bellows, 22 T. 681; Henderson v. Morrill, 12 T. 3. * H. & T. C. Ry. Co. v. Stewart 1 App. C. C., 1264 5 Craddock v. Goodwin. ">4 T. 578. In this case there were joined in the same petition two separate counts for malicious attachment, with a count for dam- ages for seizing property belonging to the husband and one for seizing property belonging to the wife husband and wife being joined as plaintiffs It was held that an exception for misjoinder of parties and causes of action was not well taken. And see Dobbin v. Bryan, 5 T. 276. 360 CONSOLIDATION OF SUITS, ETC. [ 361. with our system of practice. 1 A petition is not objectionable if it confines itself to an adjustment of all the equities between the par- ties, however various those equities may be in their origin. 2 An objection which would be well taken under a system where there are forms of action should not prevail in this state, where the mat- ters relied on are connected with or grow out of the same cause of action, or transaction, and subject-matter in dispute ; particularly should this be the case where the' parties and the evidence are the same. 3 It would be allowed to join in one suit allegations to reform an instrument to supply a defect for mutual mistake, with foreclosure of the instrument as corrected. In such proceedings subsequent purchasers are necessary parties. 4 It was proper to entertain a proceeding 1 for ttye purpose of reviving former judgments between the same parties, and at the same time to enforce payment through mandamus? That an imperfectly stated cause of action is joined with one properly set out is no ground for demurrer to the cause of action well pleaded. 6 361. Illustrations of the various rulings. The policy of the courts seems to be to permit and encourage the joinder of causes of action, within proper limits, but not to re- quire it. Thus, it is held that where wages are due monthly, the party may bring separate suits for several months' wages due. 7 Again : Four bales of cotton were delivered to a railway company for shipment. Two of them were destroyed by fire and the other two were shipped to the agent of the railway company. Suit was first brought for the loss, and afterwards for a conversion of the other two bales; and on a motion to tax costs it was held that the law did not require the joinder of the two causes of action. 8 It is held proper to embrace in one action against the same defendant claims for overcharge of freight on goods shipped, excess of freight charges paid on goods shipped but not delivered, and loss of and damage to goods shipped. 9 The fact that numerous issues are pre- sented in a petition against a number of parties defendant, who are charged to have rendered themselves liable successively for the pay- ment of a debt, the collection of which is the only object of the suit r 1 Clegg v. Varnell, 18 T. 294. 2 Dobbin v. Bryan, 5 T. 276. 3H. & T. C. Ry. Co. v. Graves, 50 T. 181; Walcott v. Hendrick, 6 T. 415. * Clark v. Gregory, 87 T. 189 (27 S. W. Rep. 56). 6 City of Houston v. Emery, 76 T. 282 (13 S. W. Rep. 264). 6 Ward's Heirs v. Ward, 1 U. C. 123. ^Mohrhardt v. S. P. & T. N. Ry. Co., 2 App. C. C., 322. 8H. & T. C. Ry. Co. v. Perkins, 2 App. C. C., 522. 9 1. & G. N. Ry. Co. v. Donalson, 2 App. C. C., 238; H. & T. C. Ry. Co. v. Stewart,. 1 App. C. C., 1264. 362, 363.] CONSOLIDATION OF SUITS, Era 361 will not render the petition bad for multifariousness. 1 In a suit against a dissolved corporation to enforce an equitable lien, it was held proper to join a suit to enforce a mortgage upon other prop- erty, without alleging that the mortgaged property was insufficient to satisfy the claim. 2 362. Chancery and common-law rules. I' ruler the chancery rules, it is said, a plaintiff will not be per- mitted to demand by one bill several matters of different natures against several defendants; but where the object of the bill is to establish a general right in the plaintiff against several persons un- connected and claiming several and distinct rights in the subject- matter of the suit, the bill is not multifarious. 3 A prominent feature of the Texas system of procedure is that litigation between parties should be terminated in a single suit ; * and it is held that great latitude, not tending to manifest confusion, may be allowed in the joinder of causes of action. 5 According to the rule of the common law, where plaintiff may comprise both his causes of action in one suit, he will not be permitted to maintain two suits at the same time, but will be compelled to consolidate and pay costs. The civil law also requires that all demands not inconsistent with each other must be joined." But although our system authorizes the blend- ing of the principles of law and of equity in the administration of justice, it neither requires nor sanctions the blending of various and contradictory rights and causes of action in the same suit. 7 A plaintiff cannot join in the same action a note payable to him in his individual capacity, with one payable to him in a fiduciary capacity. 8 363. Heal actions. Where plaintiffs in an action of trespass to try title and for par- tition join several tracts of land, and the issues as to all the tracts are the same as to all the parties, the petition is not subject to ex- ception as multifarious or for misjoinder of causes of action. 9 A joint action by several claiming separate and distinct portions of a league of land, brought to recover their respective parts, is irregu- lar, and an objection to such joint action, if made at a proper time and in a proper manner, should be sustained ; but the objection can- 1 Nat. Bank of Jefferson v. Texas Inv. Co., 74 T. 421 (12 S. W. Rep. 101). 2 Panhandle Nat Bank v. Emery, 78 T. 498 (15 S. W. Rep. 23). 'Morris v. Ashley, Dallam, 619. 4 Clegg v. Varnell, 18 T. 294 8 Chevalier v. Rusk, Dallam, 511. 6 Binge v. Smith. Dallam, 616: Chevalier v. Rusk, Dallam, 511. " Herrington v. Williams, 31 T. 448, 460; Frost v. Frost, 45 T. 325; Thomas v, Walsh, 44 T. 161. 8 Thompson v. Bohannan, 38 T. 241. Yellow Pine Lumber Co. v. Carroll, 76 T. 135 (13 S. W. Rep. 261). 362 CONSOLIDATION OF SUITS, ETC. [ 364, 365. not, for the first time, be made in the appellate court, and a defend- ant ought not to be heard to urge it at all after having acquiesced so long in the particular mode of procedure as that to entertain the objection would operate to the prejudice of the plaintiffs and secure to the defendant advantages which he would not have had if he had urged the objection when the action was first brought. 1 A suit for possession may be joined with one for rent of the prop- erty. 2 364. Tort actions. Distinct causes of action, such as trespass upon lands and con- version of goods, may be joined. 3 A cause of action for libel and one for slander may be joined in the same suit if each count is com- plete in itself and relates to the same matter. 4 It is not a mis- joinder of parties or of causes of action to join in an action a party who by fraudulent and false representations as to his solvency had purchased goods of plaintiff on credit, with one to whom he had in furtherance of his fraudulent design conveyed the goods in trust, it being alleged that part of the goods are in possession of said trustee, with prayer for such goods or their value against the trustee, and a further prayer against the principal for the balance due. 5 365. Joinder of causes ex delicto and ex contracts. The general rule is, that a cause of action ex delicto and a cause of action ex contractu cannot be joined in the same suit, and if, under the liberal course of procedure adopted in this state, such causes of action can be joined at all, they must be such as the plaint- iff in the suit could enforce against all of the defendants. 6 But it is said that the right to sue for a breach of a contract and for a tort, when both grow out of the same transaction and can be prop- erly litigated together, is recognized by the courts of Texas. 7 1 Allen v. Read, 66 T. 13 (17 S. W. Rep. 115). 2 Lyles v. Murphy, 38 T. 75. 3 Carter v. Wallace, 2 T. 206. 4 Wallis v. Walker, 73 T. 8 (11 S. W. Rep. 123). 8 Johnson v. Stratton, 6 Civ. App. 431 (25 S. W. Rep. 683); Milliken v. Callahan Co., 69 T. 205 (6 S. W. Rep. 681). A surviving husband, there being minor chil- dren of the marriage, conveyed in trust to secure his own debt a stock of cattle belonging in part to the separate estate of his wife and in part community, in fraud of the administrator of the wife and of the minor children. The two causes arising from the same act may be joined. Moody v. Smoot, 78 T. 119 (14 S. W. Rep. 285). A man may bring separate suits for damages for personal injuries to himself And to his wife, or he may join the two claims in one suit. St. Louis, I. M. & S. Ry. Co. v. E.: wards, 3 App. C. C., 346. 6 Stewart v. Gordon, 65 T. 344, citing Stephen on PL 267; Chitty on PI. 199; Pomeroy's Remedial Rights, 456, 479, 483. ^ Hooks v. Fitzenrieter, 76 T. 277 (13 S. W. Rep. 230); H. & T. C. Ry. Co. v. Shir- ley, 54 T. 125, 148. CONSOLIDATION OF SOTS, ETC. 363 It is not error to join in the same suit claims for property con- verted and for damages proximately resulting from a breach of contract, when the matters relied on for a recovery are connected with and grew out of the same cause of action and subject-matter in dispute; in such an action it is proper to join all the parties as plaintiffs or defendants who have so participated in the transaction as to render them interested in the determination of the suit. 1 ? 366. Whether parties must all be interested or affected in the same way. In a suit on a guardian's bond a joint demand for conversion in favor of all the plaintiffs may be joined with a separate demand in favor of one of them. 2 Where suit is brought for partition of an estate, it is held that the plaintiff will not be permitted to join a claim airainst one of the parties interested for services rendered, with a claim for the value of property of the plaintiff converted. 3 Where the partners in two firms are the same, they may join causes of ac- tion in favor of one with causes of action in favor of the other in one action. 4 A separate agreement of one joint maker of a note to pay inter- est in consideration of forbearance may be prosecuted in a suit on the note against all the makers. 5 - 367. Effect of non-joinder. V'-ry little has been said in this state as to the penalty incurred l>y the splitting of a cause of action. The rule has been stated as follows: Where claims constitute a single cause of action, though arising on different transactions, or at different periods, as, for in- stance, a running account, or successive instalments of rent actually accrued, a judgment for a part bars an action for the rest; but if they are such that, although they might be joined, they must be separately stated as separate causes of action, even though they arose at the same time or on the same contract, a judgment on one does not bar an action on the other, unless by establishing some matter fatal to both. 6 1 Milliken v. Callahan Co., 69 T. 205 (8 S. W. Rep. 681). Demurrer properly sustained to a petition which with a claim against several defendants for dam- ages for assault and battery joined a claim against one of them for money had and received. Degress v. Hubbard, 2 U. C. 735. Action against a sheriff for wrongful seizure of goods cannot be joined with a suit on an indemnity bond, executed to the sheriff, against the makers of such bond. Longcope v. Bruce, 44 T. 434. 2 Bond v. Dillard, 50 T. 302. 8 Oliver v. Robertson, 41 T. 422. 4 Messner v. Lewis, 20 T. 211. Knapp v. Mills, 20 T. 123. St L., L M. & S. Ry. Co. v. Edwards, 3 App. C. C., 346. CHAPTER XYIII. PERSONAL ATTENDANCE OF WITNESSES. 368. Subpoenas for witnesses; form and service. 369. Attendance of witnesses, how enforced; fees. 370. Diligence must be used to pro- cure attendance of witnesses. 871. Party summoning witness liable for his fees; taxation of. 372. Refusal to testify. 373. Privileged from arrest. 374. Parties compelled to attend and testify. 375. Interpreters. 376. Subpoena duces tecum. 368. Subpoenas for witnesses; form and service. The clerk of the district or county court, at the request of any party to a suit pending in his court, or of his agent or attorney, is required to issue a subpoena for any witness or witnesses who may be represented to reside within the county or be found therein at the time of the trial. The style of the subpoena must be "The State of Texas." It must state the names of the parties to the suit, the court in which the same is pending, the time and place at which the witness is required to appear, and the party at whose instance he is summoned. It must be dated and tested by the clerk, but need not be under the seal of the court, and the date of its issuance must be noted thereon. Subpoenas may be executed and returned at any time before the trial of the cause, and are served by being read to the witness; service may be accepted by any witness by a written memorandum, signed by him, attached to the subpoena. 1 369. Attendance of witness, how enforced; fees. Every witness summoned in any suit must attend the court from day to day, and from term to term, until discharged by the court or party summoning him. If any witness, after being duly sum- moned, shall fail to attend, he may be fined by the court as for a contempt of court, and an attachment may issue against the body 1 R. S. 2264-2266. By article 1448 of the Revised Statutes it is provided that subpoenas shall be issued without the seal of the court, and may be made re- turnable forthwith, or on any day for which the trial of the cause may be set. A subpoena directed out of the county of the trial is void; and a witness sum- moned when found within the county, or a resident removing out of the county after being subpoenaed, is required to attend only at the term to which he was subpoenaed. Sapp v. King, 66 T. 570 (1 S. W. Rep. 466). Witnesses are not bound to follow the case to another county to which the venue is changed. Danger- field v. Paschal, 20 T. 536. 370,371.] PKKSii.VM. AITKNDANCE OF WITNES- 365 of such witness to compel his attendance; but no such fine shall be imposed, nor shall such attachment issue in a civil suit, until it shall be shown to the court, by affidavit of the party, his agent or attor- ney, that his lawful fees have been paid or tendered. 1 Witnesses are allowed a fee of one dollar for each and every day they may be in attendance on the court, and six cents for every mile they may have to travel in going to and returning therefrom. 2 ? 370. Diligence must be used to procure attendance of witnesses. It is the duty of the party to use reasonable diligence to procure the attendance of witnesses whose testimony is necessary to estab- lish his case, as set forth in his petition, irrespective of what may be the defendant's answer. He cannot safely wait for the coming in of the defendant's answer before subpoenaing his witnesses; if he does so, it will be at his peril. 3 And so it is the duty of the defend- ant, as soon as he is served with the citation, to take the steps nec- essary to procure the testimony in support of his defense.'-' Neither party can postpone the preparation for trial, but each must, at the first term of the court, be prepared to support by proof his own case, or show a reasonable excuse for his failure to do so. 5 Tin.' subpoena must be lodged with the sheriff in time to perfect service and allow the witness a reasonable time for attendance before the trial of the cause. 6 The deposition of a male witness residing in the county need not be taken, unless by reason of age, infirmity, sick- ness or official duty he will not be able to attend court, or unless he is about to leave the state or county, and will probably not be pres- ent at the trial. In the absence of any of these obstacles, diligence is shown by the use of the ordinary process to procure the attend- ance of the witness. 7 371. Party summoning witness liable for his fees; taxation of. The party at whose instance the witness is summoned is liable to him for his fees as soon as the services are rendered, and the latter 1 R S. 2267. A witness is not in contempt for failure to obey a subpoena, un- less his fees have been paid or tendered (Tex. & Pac. Ry. Co. v. Hall, 83 T. 675, 19 S. W. Rep. 121); but it does not followthat a court ought to refuse a continuance because this had not been done in a case in which the absence of the witness is caused by sickness and not from unwillingness to attend until his fees are paid or tendered. Dillingham v. Ellis, 86 T. 447 (25 S. W. Rep. 618). And see Bryce v. Jones, 38 T. 205; Texas Trans. Co, v. H^att, 54 T. 213; a & T. C. Ry. Co. v. Wheeler, 1 App. C. C., 170; also the chapter on CONTINUANCE. 2R S. 2268. 8 Osborn v. Scott, 13 T. 59. 4 Conner v. Mackey. 20 T. 747. Williams v. Talbot, 27 T. 159; Flournoy v. Marx, 33 T. 786. Williams v. Edwards, 15 T. 41; 1 Greenleaf, Ev., 314. 7 R S. 2273; Dillingham v. Ellis, 86 T. 447 (25 S. W. Rep. 618). See the chapter on CONTINUANCE. 36G PERSONAL ATTENDANCE OF WITNESSES. may maintain an action against him therefor. 1 It is the duty of the clerk, upon the affidavit of the witness, at any time before the issuance of execution, 2 to issue to him a certificate, showing the amount of compensation to which he is entitled ; 3 and this certifi- cate is prima facie evidence of the right of the witness to recover his fees for the time and mileage therein stated. 4 Where the witness is subpoenaed in several suits, pending at the same time and place, at the instance of the same person, he is entitled to compensation in each case. 5 On the final determination of the suit the fees of the witnesses will be taxed in the bill of costs against the party cast. 6 It is only when a witness appears in obedience to an authorized subpoena that he is entitled to per diem and mileage ; if he obeys a subpoena directed to him out of the county, his act is wholly vol- untary and he cannot recover fees ; or if he is subpoenaed while a resident of the county and afterwards removes from the county, or is subpoenaed when found within the county, he is bound to attend the term only to which he was subpoenaed, and cannot recover fees and mileage for attendance at subsequent terms. 7 If the witness attends in obedience to an authorized subpoena, he is entitled to his- fees whether he testifies or not. 8 372. Eefusal to testify. Any witness refusing to give evidence may be committed to the county jail, there to remain without bail until he shall consent to- give evidence. 9 The privilege of a witness to decline to answer is- personal. 10 J R. S. 2268; Flores v. Thorn, 8 T. 377; Sapp v. King, 66 T. 570 (1 S. W. Rep. 466). The statute of limitations commences to run against a claim for fees of a witness as soon as the services are rendered, and the claim is barred in two years. Flores v. Thorn, 8 T. 377; Crawford v. Crane. 19 T. 145; Ballard v. Murphy, 4 App. C. C., 171. The witness may claim his fees, and they may be taxed in the bill of costs, at any time before the issuance of execution. Hardy v. De Leon, 7 T. 466. 2 Hardy v. De Leon, 7 T. 466. 3 R. S. 2268. 4 Crawford v. Crane, 19 T. 145. A witness' affidavit, for the purpose of prov- ing the costs to which he is entitled, should fully state the number of days he has attended and the number of miles for which he is entitled to charge. A party testifying in the case, under the act of 1871, is not entitled to fees. Gause v. Edminston, 35 T. 69. s Flores v. Thorn, 8 T. 377; Harris v. Coleman, 8 T. 278. R. S. 2268; Anderson v. McKenney, 22 T. 653. 7 Sapp v. King, 66 T. 570 (1 S. W. Rep. 466). An action will not lie for fees unless the judgment is dormant; the remedy is by execution. Ballard v. Murphy, 4 App. C. C., 171. 8 Perry v. Harris, 1 App. C. C., 478. 9 R. S. 2269. Refusal to answer a proper and legal question, in reference to a matter over which the court has jurisdiction, is a contempt. Holrnan v. Mayor of Austin, 34 T. 668. 10 Ingersol v. McWillie, 87 T. 647 (30 S. W. Rep. 869). 73-376.] PERSONAL ATTENDANCE OF WITNESSES. 367 373. Privileged from arrest. Witnesses are privileged from arrest, except in cases of treason, felony and breach of the peace, during their attendance at court, and in going to and returning therefrom, allowing one day for each twenty-five miles from their place of abode. 1 374. Parties compelled to attend and testify. Either party to a suit may examine the opposing party as a wit- ness, and shall have the same process to compel his attendance as in the case of any other witness. His examination is conducted and his testimony is received under the same rules applicable to other witnesses. 2 375. Interpreters. The court may, when necessary, appoint interpreters, who may be summoned in the same manner as witnesses, and are subject to the same penalties for disobedience, and are entitled to the same fees. 3 376. Subpoana duces tecum, when issued. If the witness have in his possession any written instrument which could be used as evidence, he must be served with a subpoena duces tecum, commanding him to bring it with him and produce it at the trial. The subpoena must be signed, dated and served in the same manner as the common subpoena. 4 The witness must attend at the trial, with the instrument required, and produce it in evi- dence, unless he have some lawful or reasonable excuse for with- holding it, of the validity of which excuse the court, and not the witness, is to judge. 5 It is no excuse that the legal custody of the instrument belongs to another, if it be in the actual possession of the witness; 6 but if it tend to criminate himself 7 or his client 8 (if the witness be an attorney), the court will not compel him to pro- duce it. If the witness, instead of bringing the papers required, deliver them to the opposite party, by whom they are withheld, the court will allow secondary evidence of the contents of them to be given, without a notice to produce the original. 9 Third per- sons, having no interest in the controversy, but who have in. their i R. S. 2270. 2R. S. 2271. R. S. 2272; Kuhlman v. Medlinka, 29 T. 385; Schunior v. Russell, 83 T. 83 (18 S. W. Rep. 484). \vs about the case, for guidance in propounding interrogatories to such wit- ness, it is improper for his answers to be first taken in writing under oath or otherwise, and for them when so taken to be used to aid or influence the wit- ness in answering interrogatories subsequently propounded. Depositions so taken should be suppressed, because it should be conclusively presumed that the witness may have been influenced by the course pursued. Greening v. Keel, 84 T. 326 (19 S." W. Rep. 43.-,). The court correctly refused to exclude a deposition because a letter by which the witness refreshed his memory as to a date was not attached thereto, the witness not having been asked to attach the letter, and no effort having been made to quash the deposition before entering into trial Bailey v. Laws, 3 Civ. App. 529 (23 S. W. Rep. 20). 1 The witness may be sworn either before or after his answers are taken. San A. & A. P. Ry. Co. V. Gillum, 30 S. W. Rep. 697, 31 id. 356. * R. S. 2284. Where the clerk of the district court in which the suit is pend- ing takes the depositions, he may direct them to the court instead of to the clerk, Eakin v. Morris, 1 App. C. C., g 883. A bill of exceptions to the refusal of the court to suppress a deposition, on the ground that the officer taking it had failed to write his name across the seal, should show that some part of the deposition was read in evidence on the trial. W. U. Tel. Co. v. Hinkle. 3 Civ. App. 518 (23 S. W. Rep. 1004). Neither the caption nor certificate to a deposition disclosed in what case the deposition was taken. By the heading it purported to be taken "in obediV-ice to the annexed commission," and it was held that the case was not sufficiently identified. Southern Pac. Ry. Co. v. Royal, 23 S. W. Rep. 316. ' R, S. 2285. \v an officer taking depositions to supply an omission, the court being satisfied that the depositions have not been tampered with. 3 The statute intends to secure and preserve evidence of the correctness of depositions and of their freedom from being tampered with by the observance of the regulations prescribed and not otherwise. 3 When depositions on file in a cause pending are lost or destroyed, they may be substituted under the provisions of the statute.* 388. Return of the depositions. Depositions may be returned to the court either by mail, by a party interested in taking the same, or by any other person. If IG., H. & S. A. Ry. Co. v. Matula, 79 T. 577 (15 S. W. Rep. 573). In this e.-uu depositions were returned with defective certificate. Motion to suppress for the defect was met by motion to amend the certificate. The amendment wr.s allowed by the officer forwarding a perfect certificate to the attorney of the party desiring to use the deposition. This was attached to the answers, and tin- motion to suppress overruled. It was held error to permit the amendment in this manner. When depositions have been suppressed for defective certificate, and with- drawn, without objection from the opposite party and by leave of the court, to have the certificate corrected, the opposite party cannot have them suppressed when offered again, on the ground that their withdrawal and correction \veiv unauthorized. Price v. Horton, 4 Civ. App. 526 (23 S. W. Rep. 501). Where a deposition was excluded after the trial commenced on account of a defect in the certificate of the officer, and leave to amend the certificate was refused, the supreme court said; "Whether the court should have permitted the officer to amend his certificate after the trial had commenced was a question addressed to the discretion of the court. If it had been proposed before going into trial, we think it should have been allowed; or if refused, it might have been good cause for a continuance." Chapman v. Allen, 15 T. 278. SMillikin v. Smoot, 71 T. 759 (12 S. W. Rep. 59). 3 Creager v. Douglass, 77 T. 484 (14 S. W. Rep, 150), The return of the deposi- tions was in accordance with the statute, but the jurat was defective, and with- out authority of the court counsel for the party taking the depositions detached the answers and sent them to the officer, who having corrected [the jurat re- turned the answers. And it was held that suoh withdrawal etc., were siu-h irregularities as to be fatal to the use of the answers as testimony afterwards. Interrogatories were filed to take the depositions of a witness. The notice stated the county of his residence. The depositions were regularly taken by an officer of that county and properly returned. An error by the clerk in the commission, giving a wrong name for the residence of the witness, was properly amended under the direction of the court. Irvin v. Bevil, 80 T. 332 (1(5 S. W. Rep. -JH Counsel agreed that the depositions of a witness might bo taken to the original direct and cross-interrogatories. The answers were defectively returned. One party detached the original interrogatories and had a commission issued un Irr which the depositions of the witness were taken and regularly returned. It was hold proper for the party desiring the testimony of the witness to proceed at onoe to retake the depositions without waiting to ascertain uhetlior the de- fect would be waived. It was not proper to withdraw the original interroga- tories filed, A copy should have been obtained. But the irregularity is not ground of reversal, Boone v. Miller, 73 T, 557 (11 S. W. Rep. 551), 4 Jury v, Shearman, 2 \J, C, SOI. 378 DEPOSITIONS OF WITNESSES. [ 380, 390. sent by mail, the postmaster or his deputy mailing the same must indorse thereon that he received them from the hands of the officer before Avhom they were taken; and the clerk taking them from the postoffice must indorse on them that he received them from the postoffice, and sign his name thereto. If sent otherwise than by mail, the person delivering them into court must make affidavit before the clerk that he received them from the hands of the offi- cer before whom they were taken; that they have not been out of his possession since, and that they have undergone no alteration. 1 The provision of the statute regulating the transmission of the deposition by mail is directory ; a substantial compliance with its directions is sufficient where there is nothing to raise a presump- tion of fraud. 2 A postmaster's certificate signed by his clerk is sufficient. 3 The receipt of the postmaster upon the envelope need not state the name of the postoffice at which the deposition was mailed. This is shown by the postmark. 4 The depositions may be delivered directly to the clerk by the officer taking them. 5 Failure of the postmaster to indorse on the depositions the name of the person from whom he received them is fatal, if the objection be made before the trial. 6 389. Opening depositions. Depositions, after being filed, may be opened by the clerk at the request of either party or his counsel; and the clerk must indorse on the depositions upon what day and at w r hose request they were opened, signing his name thereto; they then remain on file for the inspection of either party. 7 390. Objections to depositions. "When a deposition has been filed in the court at least one entire day before the day on which the case is called for trial, no objec- tion to the form thereof or to the manner of taking the same will be heard unless such objections are in waiting and notice thereof is 1 R. S. 2286. 2 Garner v. Cleveland, 35 T. 74; Laird v. Ives, 45 T. 621. 3 Greenwood v. Woodward, 1ST. 1. 4 Anderson v. Rogge, 28 S. W. Rep. 106. 5 Andrews v. Parker, 48 T. 94. 6 Laird v. Ives. 45 T. 621. The indorsement on the deposition was: "Received this package from the hands of W. W. Gray, clerk, the officer before whom the deposition was taken. G. S. Smith, P. M." The postmark on the envelope was: "Woodbury, Tenn., July 21." From the certificate of the officer who took the deposition it appears he was " clerk of Cameron county, Tennessee." The ob- jections to the deposition were : (1) That the signature did not show that the person signing was a postmaster., (2) If the initials were sufficient for that pur- pose, then it does not appear at what point he was postmaster. The certificate was held sufficient. C. T. & N. W. R. Co. v. Hancock, 2 U. C. 301. " R. S. 2287. 3'.' DEPOSITIONS OF WITNESSES. 379 given to the opposite counsel before the trial commences. The ob- jtvtion must be made and determined at the first term of the court after the deposition has been filed, and not thereafter. 1 When notice is given of objections to the form or manner of taking and returning depositions, either party may require it to be put on the motion docket and tried as other motions; and, if not tried sooner, it must be decided before either party shall be required to announce readi- for trial on the fact That an interrogatory has not been answered is an objection to the manner of taking; 3 or that it is leading; 4 or that an answer is not responsive or pertinent; 5 or that the plaintiff was present when the depositions were taken ; 6 or that proper notice of the taking was not given ; " or as to the form of the interrogatory, in that it is too general; 8 or that there was a variance between the name of the witness as stated in the commission and that-signed to the answers/' The notice is in time if given before both parties have announced ready for trial. Until then the trial of the suit has not, in contem- plation of the statute, commenced. 10 Only such questions as go to the form and manner of taking are required to be made in writing and notice thereof given before the trial. Objections on the ground that the testimony is hearsay, sec- !R. S. 2289. The last sentence of the article was added in 1893. Acts 1893. p. 5. See Croft v. Raines. 10 T. 520; Bracken v. Neill, 15 T. 109: Hagerty v. Scott, 10 T. 52.1; Garner v. Cutler, 28 T. 176; Leach v. Dodson, 64 T. 185: T. & P. Ry. Co. v. Burnes, 2 U. C. 239. 2 Rule 23. It will be noticed that the statute refers to the form of the deposi- tion and to the manner of taking it, while the rule, by its grammatical construc- tion, has reference to the form and manner of taking and returning the deposi- tion. 3 Snow v. Price, 1 App. C. C.. 1342: Lindsay v. Jaffray. 55 T. 626; Scott v. Delk, 14 T. 341: Hopkins v. Clark. 20 T. 64. Brunswig v. Kramer, 2 App. C. C., 803; Davidson v. Wallingford, 30 S. W. Rep. 286. Answers to leading interrogatories may be excluded at the trial, where the objection is made before the trial commences and notice is given. Kean v. Zundelowitz, 29 S. W. Rep. 930; Lee v. Stowe, 57 T. 444: Marx v. Heiden- heimer, 63 T. 304 G., C. & S. F. Ry. Co.e. Kemp, 30 S. W. Rep. 714; Unknown Heics of Wright v. Wren, 16 S. W. Rep. 996; Mo. Pac, Ry. Co. v. Peay, 7 Civ. App. 400 (26 a W. Rep. 768); I. & G. N. Ry. Co. v. Kuehn, 2 Civ. App. 210 (21 S. \V. Rep. 58); Lee v. Stowe, 57 T. 444; Parker v. Chancellor. 78 T. 524 (15 S. W. Rep. 157); G.. i. M & F. Ry. Co. v. Shearer, 1 Civ. App. 343 (21 & W. Rep. 343); Harris v. Nations. 79 T. 409 (15 S. W. Rep. 262); Mo. Pac. Ry. Co. v. Ivy, 71 T. 409 (9 S. W. Rep. 346); Brown v. Mitchell, To T. 9 (12 S. W. Rep. 608). *Hill v. Smith, 6 Civ. Apn, 312 (25 S. W. Rep. 1079). T Grigsby v. May, 57 T. 255. G., C. & S. F. Ry. Co. v. Richards, 83 T. 2o:j : Mo. Pac. Ry. Co. v. Smith. 84 T. 348; Wade v. Love, 69 T. 522; I. & G. N. Ry. Co. v. Prince, 77 T. 560; Allerkamp v. Gallagher, 24 & W. Rep. 372. 9 Mo. Pac. Ry. Co. v. Smith. 84 T. 348. w H. & T. C. Ry. Co. v. Burke, 55 T. 323. 380 DEPOSITIONS OF WITNESSES. [391. ondary, or irrelevant, may be made when the testimony is offered ; ] so, also, as to questions and answers as to matters of opinion or conclusions of law. 2 "When a motion to suppress depositions is filed and notice thereof given before the trial of the cause begins, the motion may be con- sidered and determined by the judge, either before the trial begins or during its progress, in his discretion. 3 But this rule will hold only in case a term of the court has not elapsed between the time of the filing of the deposition and the trial, as the amendment of 1893 requires that the objection be made and determined at the first term of the court after the deposition is filed, 391. May be read subject to exceptions. Depositions may be read in evidence upon the trial of any suit in which they are taken, subject to ail legal exceptions which might be made to the interrogatories and answers were the witness per- sonally present before the court giving evidence. 4 If a deposition contains testimony not pertinent to the direct and cross-interroga- tories propounded, such matter will be deemed surplusage, and may be stricken out by the court upon objection thereto, 5 A deposition taken by agreement in a former suit is admissible in a subsequent suit between the same parties where the same subject- matter is in controversy. Such deposition is admissible both at common law and under the statute. 6 IR. S. 2290; Woosley v. McMahon, 46 T. 62; Lott v. King, 79 T. 292. 3Purnell v. Gandy, 46 T. 191. 3Coleman v. Colgate, 69 T. 88; So. Pac. R. Co. v. Royal, 23 S. W. Rep. 316. * R. 8. 2290. Objections that the testimony is hearsay, secondary or irrelevant may be made when the deposition is offered. Woosley v. McMahon, 46 T. 62; Purnell v. Gandy, 46 T. 191. Objections to a deposition are to be determined by the court, and not by the jury, notwithstanding questions of fact may be involved. Garner v. Cutler, 28 T. 176; Thompson v. Herring, 27 T. 282, R. S. 2291. 6 Emerson v. Navarro, 81 T. 338. That cross-interrogatories to a witness sought information regarding matters to which the witness testified in a former deposi- tion affords no reason for striking them out. Evansicn v. G., C. <& S, F. Ry. Co., 61 T. 24. The rules adopted in the United States circuit court for the northern district of Texas, adopted at its April term, 1880, authorize the taking of depositions in the United States court in the northern district of Texas according to the state laws. Applied to a case removed to the United States court and retransferred, depositions having been taken while the suit was in the United States court. Mo. Pac, Ry. Co, v. White, 80 T. 202 (15 S, W, Rep, 808), CHAPTER XX. DEPOSITIONS OF PARTIES. 392. A party may take his own depo- sition. 393. A party may take the deposition of adverse party. 394. Notice; interrogatories; execu- tion of the commission. 895. Answer may embrace what ; con- tradiction. 890. Interrogatories taken as con- fessed. 397. Objectionsto interrogatories and answers. 392. A party may take his own deposition. The deposition of either party to a suit who is a competent wit- ness therein may be taken in his own behalf, in the same manner and with like effect with the depositions of other witnesses. 1 393. A party may take deposition of adverse party. Either party to a suit may examine the opposing party as a wit- ness, upon interrogatories filed in the cause, and shall have the same process to obtain his testimony as in the case of any other witness. His examination is conducted and his testimony received in the same manner and according to the same rules which apply in the case of any other witness, subject to the provisions of the stat- ute on the subject. 1 A deposition of a party to a suit may be read, though the depo- nent is present at the trial. 2 There is no statute or practice which 1 R. S. 2292. When a party to a suit in testifying by deposition taken at his own instance declines to produce, in response to a cross-interrogatory, letters or documents in his possession which are called for by his adversary, on the ground that they are too voluminous, and not that they are irrelevant to the issue, the deposition should on motion be suppressed. Coleman v. Colgate, 69 T. 88 (6 S. W. Rep. 553). The deposition of a plaintiff may be read in evidence, though he is present in court and also testifies in rebuttal, especially where it does not ap- pear that defendant was denied the right to put any question to the witness while so testifying. Dillingham v. Hodges, 26 S. W. Rep. 86. Where a party to the suit testified by depositions, it was held competent, on cross'interrogatories, to show the manner in which the answers had been pre- pared and taken down, and as to the persons present at the time of taking the depositions, It seems that a deposition taken by an employee of the witness testifying in his own behalf, on motion, should be suppressed. But if such depo- sition is not suppressed, the party offering it is entitled to have it read without the discredit which may attach to it in the minds of the jury by proof of the fact that the officer, by reason of his relations to the parties, was not legally au- tliorized to take it Blum v, Jones, 86 T. 492 (25 S. W, Rep. 694). 1 R S. 2293. 2 Cannon v. Sweet, 28 S, W, Rep, 718. 3S2 DEPOSITIONS OF PARTIES. [ 394, 395. authorizes a party to a suit to propound interrogatories to his ad- versary after trial and judgment, to be used in support of a motion for new trial. A failure to answer them cannot be construed into the confession of a fact that they were intended to establish. 1 The law makes no provision by which the deposition of a cor- poration can be taken, and it is not bound by the deposition of its managing officer. 2 394. Notice; interrogatories; execution oi commission. In taking the deposition of an adverse party it is not necessary to give notice of the filing of the interrogatories, or to serve a copy thereof on the adverse party, before a commission shall issue to take the answers thereto; nor is it any objection to the interrogatories that they are leading in their character. A commission to take the answers of the party is issued by the clerk and may be executed and returned by any authorized officer as in other cases. 3 395. Answer may embrace what; contradiction. The party interrogated may, in answer to questions propounded, state any matter connected with the cause and pertinent to the issue 1 Cleveland v. Sims, 69 T. 153 (6 S. W. Rep. 634). Either party may use the deposition, although the interrogatories have not been crossed; the party testify- ing has the right to use his answers in evidence, although the party taking the deposition declines to use it Hadley v. Upshaw, 27 T. 547; Handle v v. Leigh, 8 T. 129. The deposition of a defendant taken by the plaintiff without notice or oppor- tunity to be crossed may be read in evidence by the plaintiff after the death of defendant. Heidenheimer v. Walthew. 2 Civ. App. 501 (21 a W. Rep. 981). * Brown v. Thompson, 79 T. 58 (15 -S. W. Rep. 168); G., G & S. F. Ry. Co. v. Nelson, 5 Civ. App. 387 (24 S. W. Rep. 588). 3 R. S. 2294, 2295. It is not sufficient ground for suppressing the depositions of a party, taken without notice by the adverse party, that counsel for the party taking the testimony was present and aided the notary taking the answers by reading the interrogatories; nor is such witness entitled to time for preparation or to get advice about his answers notice is not required by the statute. Parker v. Chancellor, 73 T. 475 (11 S. W. Rep. 503). Where interrogatories were propounded to a party to the suit and his answers thereto taken without the issuance of a commision, the deposition was, on motion, properly suppressed. W. U. TeL Co. v. Haman, 2 Civ. App. 100 (22 S. W. Rep. 1133). A deposition of a party to a suit cannot be used against those who were made parties after it was taken. Dalsheimer v. Morris, 8 Civ. App. 268. Depositions of the plaintiff were excluded for irregularity in the manner of return, but on proof that they were signed by the plaintiff they were held ad- missible as declarations or admissions when offered in evideace by defendants. Parker v. Chancellor, 78 T. 524 (16 S. W. Rep. 15). The statutes do not prescribe any qualifications for commissioners to take depositions, further than to restrict the authority to certain designated officers. The officer ought to be impartial between the parties, and it is held that an offi- cer who is an employee of a mercantile establishment is incompetent to take a deposition on behalf of his employer, and especially the deposition of the em- ployer himself. Blum v. Jones, 8G T. 492 (25 S. W. Rep. 694). A surety on a cost bond lias been held incompetent Floyd v. Rice, 28 T. 341. 30*1] DEI OF PAKi: 383 to be tried: and the adverse party may contradict the answers bv any other competent testimony, in the same manner as he might contradict the testimony of any other witness. 1 Where a defend- ant whose depositions are being taken is asked about transactions with plaintiff's intestate, he has the right to explain the whole trans- action, and tell as well what is in his favor as what is against him.- ? 396. Interrogatories taken as confessed. If the party interrogated refuse to answer, the officer execut- ing the commission must certify such refusal, and any interrogatory which the party refuses to answer, or which he answers evasively, , is to be taken as confessed. 1 Interrogatories arc not to be taken as confessed unless the refusal to answer is wilful. 4 It is not intended that the certificate of the officer to the refusal should be conclusive. "NVhere it is shown that the defendant did not refuse to answer in- terrogatories propounded to him by the plaintiffs, or that he decline. I under a mistake as to his rights, or that the notary induced him to believe that he need not answer, the interrogatories should not be taken for confessed, provided that at the trial he shows that he is willing to answer them. If the interrogatories, with the certifi- cate of the officer to the refusal to answer, be filed a reasonable time before trial, the party seeking to avoid the effeqt of the offi- cer's certificate should file a motion to vacate the certificate before the trial begins. 5 An interrogatory can only be taken as confessed when it is rele- vant and pertinent to some right existing in the party who inter- rogates at the time when the answer is required by the officer executing the commission. The statute was evidently enacted to obviate the trouble and expense of filing a bill of discovery in aid of suits already pending, but subject to the same rules governing bills of discovery in respect to the pertinency of the matters in- quired about. 6 The interrogatories propounded must be framed so 1 R. a 2296. 2 Jackson v. Mumford, 74 T. 104 (11 S. W. Rep. 1061). Depositions were taken of a defendant under the statute without notice. Among other matters the de- fendant was asked concerning transactions between him and the testator of plaintiff, to which defendant was unable to answer without reference to his books, which were twenty miles distant from where he was required to answer, the notary refusing to allow him to obtain the books in order to make his an- swers. Upon the trial the defendant, having shown sufficient excuse for not giving details in his depositions, was entitled to give them when on the stand as a witness. It was error to exclude the testimony. R. S. 2297. * Rushing v. Willis, 28 T. 921; Bounds v. Little, 75 T. 316 (12 S. W. Rep. 1109); Barnard v. Blum, 69 T. 603 (7 a W. Rep. 98); Norton v. Davis, 83 T. 32 (18 3. W. Rep. 430). Bounds v. Little, 75 T. 316 (12 & W. Rep. 1109). * Barnard v. Blum, 09 T. 60S (7 a W. Rep. 98). DEPOSITIONS OF PARTIES. [ 397. as to distinctly embody the fact desired to be proved. 1 Interroga- tories propounded to one not a party to the suit cannot be taken as confessed and be made evidence against parties to the suit upon the officer charged with the duty of taking the answers certifying that the witness would not answer the interrogatories. 2 The statute does not contemplate an immediate compliance, on pain of being recusant. The request that the party have time to consult his attorney, with an offer the next day to answer, followed by a willingness to answer upon the trial, were reasons which re- quired that the certificate of the officer of refusal should have been set aside, as well as the order taking the interrogatories as confessed. 8 397. Objections to interrogatories and answers. The party interrogated may upon the trial of the case take ex- ception to the interrogatories on the ground that they are not per- tinent, and to the answers that they are not competent evidence. 4 The interrogatories may be leading, 6 but subject to this exception the testimony is to be received or rejected under the rules applica- ble to other witnesses. A question asking for the opinion of the witness instead of the facts need not be answered, and will not be taken as confessed. 6 i Church v. Waggoner, 78 T. 200 (14 S. W. Rep. 581). 2 Sweetzer v. Claflin, 74 T. 667 (12 S. W. Rep. 395). 3 Robertson v. Melasky, 84 T. 559 (19 S. W. Rep. 776). A defendant caused in- terrogatories to be propounded to himself, which the plaintiff crossed. Instead of answering them he appeared before the officer receiving the commission and declined to answer, on the ground that he intended to attend the trial and tes- tify on the stand. Having appeared at the trial and testified, failure to answer the cross-interrogatories of the plaintiff did not warrant their being taken as confessed. Dunham v. Simon, 1 U. C. 548. See Friend v. Miller, 62 T. 177; G., C. & S. F. Ry. Co. v. Nolson, 5 Civ. App. 387 (24 S. W. Rep. 588). R. S. 2298. 6R.S. 2294. 6H. & T. C. Ry. Co. v. Reason, 61 T. 613. CHAPTER XXL NOTICE TO PRODUCE PAPERS. 398. Notice required, when. 899. Order for the inspection of writ- ings, when made. 400. Notice not required, when. 401. Form and service of notice. 402. Effect of producing the paper. 398. Notice required, when. When any paper which is in the possession of the opposite party \vould be evidence if produced on trial, notice must be given to the ] tarty in whose possession it is, or his attorney, to produce it; and if he neglects to do so, parol evidence may be given of its contents. 1 If the paper is in possession of the attorney of the party, and was delivered to him by his client as supporting the action or defense, notice to produce it must be given, and the party cannot have the benefit of the evidence by subpoenaing the attorney and compelling him to testify. 2 But where notice has been served, the attorney may be asked whether he has the paper, in order to let in secondary evidence of it if it be not produced. 3 1 1 GreeuL Ev., 560; Fanner v. Simpson, 6 T. 303; Newsom v. Davis, 20 T. 419; Loftin v. Nally, 24 T. 565; Williams v. Duret, 25 T. 667. -' McPherson v. Rathbone, 7 Wend. 216. 3 1 Moo. & M. 235. The contents of a letter written to a party or his agent, against whom a right is asserted, is only admissible when sought to be estab- lished by parol after notice given to produce the letter. Ma Pac. Ry. Co. v. Johnson, 72 T. 95 (10 S. W. Rep. 325). It was not error to admit as secondary evidence copies of letters the originals of which were in the possession of de- fendant, and he had been notified to produce them on the trial, and the copies had been on file in the case some time, and had been read without objection on > satisfactorily shown to the court before the continuance to make parties can be granted as a matter of right. It will, on appeal, be presumed, from an order entered by the district 390 CONTINUANCE OF A CAUSE. [ 404-406. "Where there are several defendants in a suit and some are not served with process, plaintiff may have a continuance to the next term and may take new process for the defendants not served. 1 404. First application, requisites of. On the first application for a continuance, if the ground of the application be the want of testimony, the party applying therefor must make affidavit that such testimony is material, and that he has used due diligence to procure the same, stating such diligence. 2 Argument will not be heard on a first application. 3 405. Second and subsequent applications. On the second or any subsequent application for a continuance, if the ground of such application be the want of testimony, the party applying therefor must make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure if known; that such testimony cannot be obtained from any other source; and if it be for the absence of a witness, he must state the name and residence of the witness, and what he ex- pects to prove by him; and he must also state that the continuance is not sought for delay only, but that justice may be done. 4 406. Whether an application is first or second, etc. In determining whether an application is the first, second, or a subsequent one, the court must look to the entire record, and not merely to the action had in the case after it is remanded by the ap- pellate court for a new trial. This rule is adhered to, notwithstand- ing it may often require as much or more time to prepare for the new trial than was required for preparation in the first instance; but where this is made to appear, due consideration should be given it by the court, in determining the sufficiency of the application. 5 Previous continuances in the justice's court are counted when an application is made after appeal to the county court. 6 It is not re- quired that the application should state specifically that it is a first or a second one. It is sufficient if it be shown by the bill of excep- tions to the ruling of the court. 7 judge granting the sheriff leave to make the persons parties defendant who were sureties on the indemnifying bond, that the district judge had become satisfied that such persons had executed the bond; and it was error to refuse a continuance to a subsequent day of the term, to have citation on such sureties, when applied for by the sheriff. Rains v. Herring, 68 T. 468 (5 S. W. Rep. 368). 1 R S. 1256. 2 R. S. 1277. 8 Rule 35. 4 R. S. 1278. 5 McMichael v. Truehart, 48 T. 216. 6 Heidenheimer v. Bledsoe, 1 App. C. C., 318. "Earth v. Jester, 3 App. C. C., g 222. 407, 408.] CONl'IM ANCE OF A CAUSE. 391 407. Court not held or business* not disposed of. If from any cause the court shall not be held at the time pre- scribed by law, or if the business before the court be not determined before the adjournment thereof, such business, of whatsoever nature, remaining undetermined, will stand continued until the next suc- MU' term of the court. 1 Where the district or county judge fails tit appear at the time appointed for holding court, and no spe- cial judge is elected, the sheriff, or in his default a constable of the county, must adjourn court from day to day for three days, and if the district judge fails to appear on the morning of the fourth day, or the county judge fails to appear on the fourth day, the sheriff or constable is directed to adjourn the court until the next regular term. 2 ? 408. Miscellaneous provisions; surprise by rulings. Motions may be continued by consent to the next term of court. 8 But motions for new trials, in arrest of judgment, or to set aside a judgment, must be determined at the term of the court at which they are made; 4 they may be postponed, but not to a day later than two entire days before the adjournment of the court. 5 Where parties to a suit set the case for trial for a day when by the orders of the court no jury will be in attendance, the absence of a jury will not be a reason for the continuance of the case. Liti- irants are chargeable with knowledge of the standing orders of the court. 6 To grant a continuance of a cause because during the progress of the trial evidence was excluded without which the party could not maintain his suit, the exclusion of which was re- quired by the well-settled law of evidence would be in violation of established practice. Nor under such circumstances should the party obtain a new trial on the ground of surprise. 7 i R. S. 1279. ^RS. 1119, 1169. 3 Rule 22. - R. S. 1374. * Rule 71. *Cole v. Terrell, 71 T. 549 (9 S. W. Rep. 668). "Read v. Allen, 63 T. 154. A party sought a continuance on the sole ground that another action was pending on appeal in the supreme court between him- self and others, which involved questions, the decision of which, he claimed, \v..\iM be decisive of the questions raised in this, but this was held not a suffi- cient ground. Cates v. Mayes, 12 S. W. Rep. 51. After the order refusing to set aside an order for severance, the plaintiffs 'moved for a continuance on the ground of surprise caused by the ruling, and the further reason that a cause was undisposed of on appeal in which plaintiffs litigatetl with another owner of a tract separate from that in controversy. It was In-Ill that the application showed no grounds for continuance. Grigsby v. May. M T. vMo i in S. \V. Kep. 343). A purchaser pendente lite who intervenes in the cause is not entitled, on the ground that he is a necessary party, to claim any better attitude in the case than any other intervenes He has no right to .a continuance of the cause. Edwards v. Norton, 55 T. 405. 392 CONTINUANCE OF A CAUSE. [ 409; Where an action or defense is founded on an open account, veri- fied by affidavit, if the adverse party files a counter-affidavit on the day of trial, this will entitle the party claiming under the account to a continuance to the next term. 1 409. Surprise caused by supplement or amendment to pleading. The rules provide that " when either supplement or amendment made to pleading is of such character and is presented at such time as to take the opposite party by surprise (to be judged of by the court), it shall be cause for imposing the cost of the term upon and charging the continuance of the cause (both or either) to the party causing the surprise, if the other party demand it and shall make a satisfactory showing, or if it otherwise be apparent that he is not ready for trial on account of said supplement or amendment being allowed to be filed by the court. 2 Upon the coming in of an amendment presenting new issues, th& party who claims surprise is not entitled to a continuance as a mat- ter of absolute right. If the court be satisfied upon sufficient grounds that there is no surprise, a continuance should be refused if asked on account of such amendment. 3 The courts exercise a dis- cretion which will not be revised when it can be seen that no injury resulted. 4 An amended petition may set up a new cause of action, and still the question of continuance is largely in the discretion of the court. In the absence of an affidavit made by a party wha seeks the continuance of a case on account of surprise, when his ad- versary has been permitted to file an amended pleading, after both parties have announced themselves ready for trial, the action of the court in refusing the continuance will not be revised, unless it shall be apparent from an inspection of the record that the party seek- * R. S. 2323. 2 Rule 16: Blum v. Mays, 1 App. C. C., 476; Cent. & Mont R. Co. v. Henning, 52 T. 466; Turner v. Lambeth, 2 T. 365. 3 Beham v. Ohio, 75 T. 87 (12 S. W. Rep. 996). 4 Lamb v. Temperance Hall Co., 2 Civ. App. 289 (21 S. W. Rep. 713): Miller v. Morris, 55 T. 412. It is heM that an amendment introducing new matter into the petition can have no other effect than to work a continuance. Turner v. Lambeth, 2 T. 365. When the pleading filed by the plaintiff which is claimed to have operated as a surprise to the defendant, and for which surprise he asks a continuance, sets up facts which the plaintiff would have been entitled to prove to rebut the de- fendant's plea of contributory negligence, and the depositions read by the de- fendant show that it was not taken by surprise, the motion for continuance is rightly overruled, although it was the first application. Tex. & Pac. Ry. Co. w Bagwell, 3 Civ. App. 256 (22 S. W. Rep. 829). The original petition fixed the date of the injury, on account of which damages were claimed, on the fourth of the month; an amendment filed two days before the trial gave the date as the first, and on the trial the plaintiff testified that the injury happened on the night of the seccnl of the month. Held, that defendant was not entitled to a continuance on the ground of surprise. Tex. & Pac. Ry. Co. v. Cornelius, 30 S. W. Rep. 720^ 410.] CONTINUANCE OF A CAUSE. ing the continuance could not have been prepared for trial because of the amendment. 1 Where the amended petition operates as a surprise, defendant ought to show by affidavit that he has a good defense, and that the amendment has made necessary the procuring- of other witnesses. 2 In a suit for land in which the plaintiff sets out his title, and by amendment changes the suit into a simple action of trespass to try title, such amendment, by enlarging the scope of the admissible- evidence of title, may be a matter of surprise to the defendant, such as to entitle him to a continuance. A plaintiff in a suit for the re- covery of real estate, who has specially pleaded his title, is confined upon the trial to proof of the title so pleaded ; but should he amend and file his petition in the statutory form he may prove any title under which he claims. 3 If an amendment will work a continuance, leave to file it must be obtained and entered of record. 4 If it is not shown that the applicant is not as fully prepared as he could hope to be at a sub- sequent day of the term, it is not error to refuse a motion to post- pone. 5 41O. Time of making application. A motion for a continuance should, in general, be made before- the party has announced himself ready for trial, but it may be made after such announcement. Where a party is surprised by the unau- thorized withdrawal of his witnesses after the trial has commenced, he should then apply for a continuance or postponement of the trial. 6 Where a party had announced himself ready for trial, be- lieving that his written testimony was on file, and the testimony i T. & N. O. Ry. Co. v. Goldberg, 68 T. 685 (5 S. W. Rep. 824). *Cummings v. Rice, 9 T. 527: Fisk v. Miller, 13 T. 225. A general demurrer filed to a petition on a fire insurance policy for failure to negative the idea that the loss fell within special exemptions of the policy was overruled. On trial, the court sustained objections to evidence urged on the same ground, but allowed plaintiff a trial amendment; and it was held that a refusal of a continuance to- defendant for surprise was within the court's discretion. Alamo Fire Ins. Co. v. Shacklett, 26 S. W. Rep. 630. Where a petition is amended by more particularly describing the injuries for which the suit was brought, it is not error for the court to overrule an applica- tion by defendant for a continuance. Tex. Cent. R. Co. v. Williams, 26 S. W. Rep. 856. s Cunningham v. State, 74 T. 511 (12 S. W. Rep. 217). Where, more than two years after an itemized account was set up by defendant and sworn to, the plaintiff filed his affidavit denying its correctness, and this upon the eve of an- nouncing ready for trial, a continuance of the cause on defendant's application to procure testimony rendered necessary by the plaintiff's affidavit should have- been granted. Grimes v. Watkins, 59 T. 133. Haynes v. Rice, 33 T. 167. * Johns v. Northcutt, 49 T. 445. Cotton v. State, 4 T. 260. 394 CONTINUANCE OF A CAUSE. [411. could not be found, it was held that he should, upon discovering his error, have moved for a postponement or continuance; and where he had failed to do so, a new trial was refused. 1 When an important witness of a party was so intoxicated that he was unable to testify as clearly as he otherwise would have done, .and the party failed to ask for a continuance when the inability of the witness to testify was discovered, it was held that he was not entitled to a new trial on that ground. 3 The continuance of a case after the trial has begun, on account of the withdrawal of a mate- rial witness, is largely within the discretion of the court. 3 A witness for plaintiff made statements to plaintiff before the trial tending to show a different state of facts from that testified to by him. When this was discovered, plaintiff should have applied for leave to withdraw his announcement of ready for trial, and to continue the case. Having proceeded with the trial and taken the chances of a judgment, he cannot complain. 4 411. On the character of the pleadings. The application will not be heard until the defendant files his defense' 5 and it is held that a continuance will not be granted to obtain evidence to support an answer which, if proved true, would be no defense to the action. 6 It has been held, also, that although a general denial is an answer, it can only be said to be a "defense" so far as to put the plaintiff upon proof of his case ; and in an action on a promissory note, where the only answer filed by the defendant was a general demurrer and a general denial, it was held not error 1 Linard v. Crossland, 10 T. 462. 2 LandV Miller, 7 T. 463. 3 Wiggins v. Fleishel, 50 T. 57; Kelly v. Belcher. 1 App. C. C., 1126. An ap- plication for the continuance of a cause, made on a day of the term for which "the cause had been set for trial, after a former application during the term had been refused, cannot be regarded as a first or a second application under the statute, but is addressed to the sound discretion of the court outside of fixed rules; and the action of the ccurt thereon will not be reversed unless there has been a manifest abuse of discretionary power. Due diligence was not shown * when no effort was made to procure the testimony of a witness by deposition until during the term, and after the first application for continuance was over- ruled. Hunt v. Makemson, 56 T. 9. After plaintiff had introduced his evidence, defendant was permitted to with- draw his announcement of ready for trial and take a continuance for the pur- pose of procuring evidence. This was held no ground for reversal of a judgment rendered on a subsequent trial on the merits. Daniels v. Creekmore, 7 Civ. App. -573 (27 S. W. Rep. 148). After answer filed and no diligence shown, it is not error to overrule application for continuance for non -joinder of parties; at this stage of the case such a proceeding is too late. Ryall v. Griffin, 2 U. C. 680. Gregory v. Railway Co., 2 Civ. App. 279 (21 S. W. Rep. 417). 5 R. S. 1276. 6 Claiborne v. Yoeman, 15 T. 44; Alexander v. Brown, 29 S. W. Rep. 561; White v. Waco Bldg. Ass'n, 31 S. W. Rep. 58. 1 2, 413.] CONTINUANCE OF A CAUSE. 395 to refuse the defendant a continuance, although his affidavit was in compliance with the statute in showing the absence of a material witness, the exercise of due diligence, etc. 1 It is held in other cases that the rule as here stated is limited to cases in which the general denial constitutes no defense. Where, under a general denial, the defendant would be allowed to introduce rebutting evidence, it is sufficient to authorize the consideration of an application for con- tinuance. 2 '.12. Postponement to future day of term. An application to postpone the trial of a case on the civil docket to a future day in the term is under the discretion of the court and the ruling will not be revised on appeal. 3 The statute now in force recognizes the power of the court to rquire a cause to be tried out of its order, without reference to the consent of parties. 4 The ex- ercise of this power may be revised, but it is incumbent on the party seeking a revision of the ruling of the court to show that he was injured.* The court may exercise a discretion in refusing to postpone a case when it is called for trial to enable a party to apply for a continuance. 6 An application pending the trial to withdraw the announcement and to postpone the case is addressed to the dis- cretion of the court, and the ruling will not be revised unless clearly erroneous. 7 413. Discretion in granting and refusing continuances; statutory applications. The courts exercise a discretion in granting and refusing continu- ances, but a legal or judicial discretion is intended, and not the exercise of the mere arbitrary will or caprice of the judge. Absolute discretion is tyranny, and the recognized doctrine now is that the courts exercise a discretion with due regard to fixed rules and prece- dents. The refusal in a proper case to administer to a party the benefits of a rule of law on which security in his rights of property 1 Fowler v. Buckner. 23 T. 84; Titus v. Crittenden, 8 T. 139; White v. Waco Bldg. Ass'n. 31 S. W. Rep. 58. 2 Tex. Trans. Co. v. Hyatt. 54 T. 213; Lyon v. Stevens, 35 T. 439. ' Mayer v. Duke, 72 T. 445 (10 a W. Rep. 565); Capt v. Stubbs, 68 T. 222 (4 & W. Rep. 467). * R. S. 1287, 1288. Ma Pac. Ry. Co. v. Shuford, 72 T. 165 (10 S. W. Rep. 408). 5 Addington v. Bryson, 1 App. C. C., 1292. "Dempsey v. Taylor, 4 Civ. App. 126 (23 S. W. Rep. 220). Where a witness called by defendant was expected to prove the execution of a deed for the land in controversy, the witness not so testifying, the defendant, in asking a post- ponement, should have shown the connection of the deed with the defense, and the importance of the testimony, and that it could not be supplied by other tes- timony. In absence of such showing the refusal of the court to suspend the trial was no ground for reversal. 396 '' CONTINUANCE OF A CAUSE. [ 413. depends, even where a legal discretion is confided to the judge as to when the rule may be invoked, and the refusal of an appel- late court to revise and correct an abuse of such discretion, would amount, in effect, to the substitution of an unregulated, and, as it might be, capricious and despotic, discretion in name, but mere per- sonal will in fact, for the " law of the land." l So it may be stated as a rule of law, that the ruling of the lower court in refusing a continuance may be revised, if there be any known rules or fixed principles applicable to the facts of the case. 2 When a first or second application conforms to the requirements of the statute, the continuance must be granted ; it is ordinarily error to refuse it. 3 The proposition has been frequently announced,, to the effect that if an affidavit for a first or a second continuance complies with the requirements of the statute, it relieves the court of all discretion in the matter. 4 i Watts v. Holland, 56 T. 54. ^ Ward v. Boon, Dallam, 561; Peck v. Moody, 33 T. 84; Fuller v. Craddock, Dallam, 458; Hipp v. Huckett, 4 T. 20; Hipp v. Bissell, 3 T. 18; Tex. & Pac. Ry. Co. v. Hardin, 62 T. 367. a Doll v. Kundine, 84 T. 315 (19 S. W. Rep. 394); City of Corsicana v. Kerr, 75 T. 207 (12 S. W. Rep. 982); Cleveland v. Cole, 65 T. 402; Chilson v. Reeves, 29 T. 275; Prewitt v. Everett, 10 T. 283: Goodson v. Johnson, 35 T. 622; Earth v. Jester, 3 App. C. C., J5 222: Tex. & Pac. Ry. Co. v. Watson, 3 App. C. C., 302; G., C. & S. F. Ry. Co. v. Sebastian, 3 App. C. C., 393. 4 Goodson v. Johnson, 35 T. 622. Reference to a few cases will be made to illustrate the application of the rule. In Doll v. Mundine, 84 T. 315 (19 S. W. Rep. 394; 7 Civ. App. 96), objection was made that the application did not with sufficient certainty show that the witnesses were absent, and it was held that the averments were sufficient, and that the affidavit was in accordance with the statute. In Cleveland v. Cole, 65 T. 402, the application as for a first con- tinuance is set out, and is said to be in strict compliance with the statute, with- out further comment. The application states that the desired evidence is material, that due diligence has been used to obtain it, in issuing a subpoena, etc. Of course the court, in determining the sufficiency of the application, con- sidered whether the diligence stated was due diligence. In Goodson v. John- son, 35 T. 622, the rule is announced, with an express finding by the court that the diligence set out in the affidavit was sufficient. It is nowhere stated that an affidavit containing simply the statements required by the statute will neces- sarily, on its face, entitle the applicant to a continuance. The application may contain in clear and express terms every statement required, and may still be refused, because the court may find that the desired evidence is not material (Price v. Lauve, 49 T. 74), or that the diligence used is not due diligence, etc. The applicant, on a first application, must state that the desired evidence is material, but he need not state the facts showing its materiality. But he must go further and state, not only that he has used due diligence to procure the tes- timony, but the facts showing the diligence used. And the courts determine whether the diligence stated isdue diligence or not, and grant or refuse the con- tinuance accordingly. See Campion v. Angier, 16 T. 93; City of Corsicana v^ Kerr, 75 T. 207; G., C. & S. F. Ry. Co. v. Wheat, 68 T. 133; McFaddin v. Preston, 54 T. 403. The facts showing diligence must be stated, and not mere legal con- clusions, so that the court may determine whether due diligence has been used (Mo. Pac. Ry. Co. v. Aiken, 71 T. 373), and if the facts stated do not show the use 4:13.] CON TIM 'ANTE OF A CAUSE. 397 It is also stated th;it an application not in compliance with the terms of the statute is addressed to the discretion of the court; but the discretion here intended is also a legal discretion. The ruling will be revised if injustice be done. 1 So, also, as to third applica- tions. 2 Frequently it is announced that a reversal cannot be had, because no injury resulted from the action of the court. 3 Where it appears that the witness whose testimony is desired is in the penitentiary on conviction for a felony, and there is nothing of proper diligence, the application should be refused. Falls L. & C. Co. v. Chis- holm, 71 T. 523 (9 S. W. Rep. 479). From the following extract there would seem to be a difference between due or sufficient diligence and statutory diligence: "The statute requires that on the first application for a continuance the party applying therefor shall make affidavit, among other things, that he has used due diligence to procure the testimony of absent witnesses, stating the diligence used. It is not sufficient to state the diligence without also stating that it was due or sufficient diligence. The party may be able to state that statutory diligence was used, and yet, as in this case, refuse to swear that it was sufficient. Facts may exist within the knowledge of the affiant that would restrain him from making oath that due diligence had been used, when he could promptly swear that the ordinary statu- tory diligence had been used. It would not be required that such facts be spe- cifically negatived in the first application as in the second, and yet they would be denied by the general affirmation that due diligence had been used. The re- fusal of the party to make oath to the fact in this case illustrates the meaning of the statute." St. L. & S. F. Ry. Co. v. Woolum, 84 T. 570 (19 S. W. Rep. 782). 1 Allyn v. Willis, 65 T. 65; Guy v. Metcalf, 83 T. 37 (18 S. W. Rep. 419); Chilson v. Reeves, 29 T. 275; Baldessore v. Stephanes, 27 T. 455; McMahon v. Busby, 29 T. 191 : Lewis v. Williams, 15 T. 47; Byrne v. Jackson. 29 T. 95. In Guy v. Metcalf, 83 T. 37 (18 S. W. Rep. 419), an application not stating the name and residence of the witness was held not a statutory application, and, therefore, addressed to the sound discretion of the court. See Stanley v. Epperson, 45 T. 645, for an ap- plication not statutory, in that it failed either to allege due diligence or to state the facts constituting diligence. It is held that a refusal in such a case is not error, unless it appears that the desired testimony was material for the attain- ment of the ends of justice. In Price v. Lauve, 49 T. 74, the application, stated that the desired evidence was material, and it was held that if it had stopped there it would have been a statutory application; but that as it went further, and recited the facts known to the witness, the court was enabled to judge of the materiality of the evidence, and the application ceased to be a stat- utory application for a first continuance. 2 Green v. Crow, 17 T. 180; Brooks v. Howard, 30 T. 278; Burrell v. State, 18 T. 713; Prewitt v. Everett, 10 T. 283; Hipp v. Huckett, 4 T. 20. 'Crouch v. Johnson, 7 Civ. App. 435 (27 S. W. Rep. 9); Coleman v. Beardslee, 16 S. W. Rep. 1011; Tex. & Pac. Ry. Co. v. Hall, 83 T. 675 (19 S. W. Rep. 121). In trespass to try title, the refusal of the court to continue the case and order a survey is not error? where there is nothing in the record to show that the party was injured by the ruling; it will not be presumed that the application was the first one. Coleman v. Beardslee, 16 S. W. Rep. 1011. Considering an application for continuance which failed to show whether it is for a first, second or subse- quent continuance, it would be necessary for the court on appeal to be satisfied that, when treated as either, it shows that the refusal of the continuance was a wrong, before being considered ground for reversal. Tex. & Pac. Ry. Co. v. Hall, 83 T. 675 (19 S. W. Rep. 121). 398 CONTINUANCE OF A CAUSE. [ 414, 415, to show that his disability can be removed, the continuance is prop- erly refused. 1 414. Diligence, how stated. In all cases it must be stated that due diligence has been used to obtain absent testimony, and the diligence used must be stated. 2 The facts must be stated on a first application. 3 The application must state that due diligence was used ; a statement of the diligence used will not dispense with this allegation. 4 Every fact stated in the application may be true, and still due diligence may not have been used. 5 A statement of a mere legal conclusion that diligence was used is not sufficient. 6 Although the statute requires due diligence in all cases, it seems that due or sufficient diligence, or the diligence that may be re- quired of a party, may amount to more than statutory diligence in some cases. It is said that " the party may be able to state that statutory diligence was used, and yet refuse to swear that it was sufficient. Facts may exist within the knowledge of the affiant that would restrain him from making oath that due diligence had been used, when he could promptly swear that ordinary statutory diligence had been used." These remarks are made in a case in which the applicant omitted to state that due diligence, or any dili- gence, had been used, but the facts were stated. 7 Due diligence consists, ordinarily, in the use of the means given by law to procure testimony ; as, the issuance and service of subpoe- nas, or the filing of interrogatories, succeeded by notice to the ad- verse party, and issuance of commission and procuring the answers of the witness without delay. 8 415. Probability of procuring the evidence. The application ought to show that there is a reasonable proba- bility that the desired evidence can be procured within a reasonable time ordinarily by the next term ; 9 especially where no diligence i Tillman v. Fletcher, 78 T. 673 (15 S. W. Rep. 161). Application was made for a continuance on the ground of the absence of the defendant, who was alleged, to be a material witness, but as no reason was given for his absence it was held insufficient. Davis v. Foreman, 20 S. W. Rep. 52. 2R. S. 1277, 1278; Falls L. & C. Co. v. Chisholm, 71 T. 523 (9 S. W. Rep. 479). 3 Mays v. Lewis, 4 T. 38; Flournoy v. Marx, 33 T. 786; McMahan v. Busby, 29 T. 191; Lewis v. Williams, 15 T. 47. Crawford v. Saunders, 29 S. W. Rep. 102; St. L. & S. F. Ry. Co. v. Woolum, 84 T. 570 (19 S. W. Rep. 782). 6 Brown v. National Bank, 70 T. 750 (8 S. W. Rep. 599). Mo. Pac. Ry. Co. v. Aiken, 71 T. 373 (9 S. W. Rep. 437). ? St L. & S. F. Ry. Co. v. Woolum, 84 T. 570 (19 S. W. Rep. 782). 8 McMahan v. Busby, 29 T. 191; Lewis v. Williams, 15 T. 47; Byrne v. Jackson, 25 T. 95. 9 Cabel v. Holloway, 31 S. W. Rep. 201. 410.] CONTINUANCE OF A CAUSE. 399 has been used to obtain the testimony, and the party seeks to ex- cuse his want of diligence. 1 An application which fails to state when the applicant expects to obtain the testimony is properly re- fused. 2 Where the affidavit stated that the affiant expected to have the testimony at the next term, it was held insufficient because it did not disclose facts to justify the expectations. 3 416. A party must not delay the preparation of his case. A plaintiff must use due diligence to procure his testimony at the first term of the court, irrespective of what may be the defendant's answer; he cannot safely wait for the coming in of the answer be- fore subpoenaing his witnesses, and if he do so it will be at his peril.* Parties are chargeable with notice of the materiality of each link in their chain of title, and the trial of a cause will not be postponed to procure absent testimony unless due diligence has been used to procure it. 5 In a personal action against a non-resident, since juris- diction over him is acquired by the filing of his answer, and not by the service of notice on him in another state, the matter of diligence in preparing his defense should, on application for first continuance, be reckoned from the time when the answer was filed, and not from the date when such notice was served. 6 When new matter, material to a cause of action, is pleaded on the eve of trial, the adverse party, on proper application, should be allowed a continuance. 7 The defendant should not rely upon the production of documentary evidence by the plaintiff; and he cannot allege surprise if the plaintiff be permitted to prove the loss of an instrument and offer secondary evidence of its contents. 8 i Byrne v. Jackson. 25 T. 95; W. U. Tel. Co. v. Berdine, 2 Civ. App. 517 (21 S. W. Rep. 982). 2 Stachley v. Peirce, 28 T. 828; Franks v. Williams, 87 T. 24. 'Trauiell v. Pilgrim, 20 T. 158. Where depositions have been on file for years, a continuance to obtain different answers from the deponent is properly refused, especially where the affiant fails to show any reason for expecting to obtain such answers. MacDonnell v. Fuentes, 7 Civ. App. 136 (26 S. W. Rep. 792). Con- tinuance properly refused where the party was not sure that he could make the proof necessary to admit a deed in evidence. French v. Groesbeck, :.'? t>. W. Rep. 43. *Osborne v. Scott, 13 T. 59. McFaddin v. Preston, 54 T. 403. 6 Hartley v. Conn, 4 Civ. App. 299 (23 S. W. Rep. 383). 7 O., H. & & A. Ry. Co. v. Smith, 29 S. W. Rep. 186. A judgment was obtained in a justice's court for damages for killing an animal, and to a bill Hied to en- join the same for want of service the defendant pleaded the original cause of action in reconvention. The answer was filed only a few minutes before the case was called for trial, and it was held error to refuse the plaintiff a continuance. He was not bound toanticipate the defendant's cross-action, as lie could plead in reconvention or not, as he chose. G., C. & S. F. Ry. Co. v. Schneider, 28 S. W. Rep. 260. 8 Ma Pac. Ry. Co. v. Kuthman, 2 App. C. C., 46a A motion by defendant's 400 CONTINUANCE OF A CAUSE. [ 417, 418. Intoxication of a witness is a ground for continuance; and if a party risks a verdict upon the testimony of a witness who is intoxi- cated he cannot have a new trial. 1 The general rule seems to be that the absence of a witness or of documentary evidence, even when discovered after announcing ready for trial, or the want of proper preparation generally, should be made the ground for a motion for a continuance in order to give the party any reason for a new trial. 2 417. Excusing want of diligence. When a party seeks to excuse the want of diligence, the suffi- ciency of his excuse is a matter addressed to the sound discretion of the court, and the ruling will not be revised unless it appears that the discretion has been abused. 3 The application must show a valid excuse for failing to resort to the legal remedies for procuring the desired evidence, and the court judges of the sufficiency of the facts stated ; 4 he should also make oath to the merits of his case, and show that there is a reasonable probability that the testimony can be procured within a reasonable time ordinarily by the next term. 5 If it be shown that no diligence would have been success- ful, the effect is the same as if due diligence had been used ; 6 but the facts must be stated so that the court may determine whether statutory diligence would have been effectual. 7 418. Materiality of absent testimony. On a first application the affidavit must state simply that the ab- sent testimony is material ; on a second and subsequent application the materiality must be shown. 8 Where the application is for a first continuance, and complies with the statute, stating that the evidence is material simply, it must be granted ; but if it goes fur- ther and states the facts known to the witness, and the court can counsel for a continuance of the case on account of defendant's absence, stat- ing diligence, and alleging the necessity of his presence to verify his amended plea, is addressed to the discretion of the court. Hannah v. Chadwick, 2 App. C. C., 518. 1 Land v. Miller, 7 T. 463. 2 Cook v. Southwick, 9 T. 615; Kilgore v. Jordan, 17 T. 341; Devine v. Martin, 15 T. 25; Birdwell v. Cox, 18 T. 535; House v. Cessna, 6 Civ. App. 7 (24 S. W. Rep. 962). Where a party having certain defectively acknowledged deeds as evidence goes to trial, he cannot secure a continuance to procure the attend- ance of the notary to prove the execution. Threadgill v. Bickenstaff, 26 S. W. Rep. 739. 31. & G. N. Ry. Co. v. Fisher, 28 S. W. Rep. 398; Pointer v. Flash, 2 U. C. 742. 4 Pointer v. Flash, 2 U. C. 742. * Byrne v. Jackson, 25 T. 95. Payne v. Cox, 13 T. 480; Price v.Lauve, 49 T. 74. 7 Carter v. Eames, 44 T. 544. *R S. 1277, 1278; McGehee v. Minter, 25 S. W. Rep. 718. 419.] CON11MAMK iF A CAUSE. 401 see from an inspection of the pleadings that the proposed testimony is irrelevant, the application may be refused. 1 The application may be refused where the evidence is cumulative. 2 . Testimony to independent facts which tend to establish an issue is not cumula- to other such testimony. The rule that a new trial will not be granted to obtain cumulative testimony does not apply as a rea- son for overruling a motion for a continuance. Such testimony may lie material although cumulative. 1 If the desired evidence, when procured, would not tend to defeat a recovery by the plaintiff, there is no error in refusing the appli- cation. 4 The overruling of an application which is not in compli- ance with the statute may be a ground for reversal, if it appears from the affidavit, or from facts developed during the trial, that the desired testimony was necessary for the attainment of justice. 8 If the absent testimony was ever material, it will be presumed that it remained material, where there has been no amendment of the pleadings. 6 419. Efforts to discover materiality of testimony. Diligence must be shown in discovering the materiality of the desired testimony. An affidavit to the effect that affiant discovered the materiality of the testimony too late to procure it in time by any diligence in his power is not sufficient; facts should be stated, so as to enable the court to determine whether the materiality of the evidence might have been discovered in time. 7 A statement, uimply, that the evidence was not discovered until the present term of the court is not sufficient; facts showing or excusing diligence 1 Price v. Lauve, 49 T. 74. 2 Green v. Crow, 17 T. 180. a Dillingham v. Ellis, 86 T. 447 (25 S. W. Rep. 618). Herman v. Gunter, 83 T. 66 (18 S. W. Rep. 428). In this case the defendant expected to prove by the missing testimony that the plaintiff obtained the note in suit with notice of fraud and failure of consideration, and without paying a valuable consideration. But as plaintiff was the indorsee of a bona fide holder, the testimony was immaterial, and the application, being a third one, was prop- erly overruled. An application for continuance on account of the absence of witnesses to dis- prove certain allegations in the pleadings of the plaintiff is properly overruled when the plaintiff withdraws and abandons the allegations sought to be dis- proved by the absent witnesses. S. A. & A. P. Ry. Co. v. Robinson, 78 T. 277 (11 & W. Rep. 4 Stanley v. Epperson, 45 T. 64."). Wliere the matters pleaded in an answer present no defense, evidence to prove them is immaterial, and a continuance to procure such evidence is properly refused. Alexander v. Brown, 29 S. W. Rep. 561; Hardison v. Hooker, 25 T. 91; Chambers v. Bonner, 33 T. 511. State v. Rhomberg, 69 T. 212 (7 S. W. Rep. I!*'.). "Baldessore v. Stephanes, 27 T. 4Go; Boatright v. Linani, 16 T. 243; Lewis v. Williams. 15 T. 47. 26 403 CONTINUANCE OF A CAUSE. [ 420, must be shown. 1 An affidavit stating that the applicant caused a subpoena to be issued as soon as possible after discovering the ma- teriality of the testimony, but which fails to disclose when the dis- covery was made, is defective. 2 420. Statement of testimony of absent witness. On a second or any subsequent application, the applicant must state what he expects to prove by the absent witness. 3 An affidavit which does not state the facts expected to be proved by the absent witness, but merely states inferences and conclusions which, it is- asserted, could be established if the witness were present, is not sufficient to warrant a second continuance. 4 The statute requires the facts to be stated not only for the purpose of allowing the court to judge of their materiality, but to enable the adverse party to- ad mit what the absent witness would state, and thereby prevent a postponement of the trial; and a party cannot defeat the right of his adversary to an immediate trial by making his statement of the needed evidence so indefinite as to render it uncertain what verdict the jury would have found if the witness had testified and the ver- dict had been based on the testimony. 5 It is not sufficient to state that affiant has been told by reputable persons that the absent witness will testify to certain facts; it must be stated positively that he will so testify. 6 The facts must be stated with particularity. 7 The testimony need not be stated on a first application; 8 but if 1 Wheeler v. Styles, 28 T. 240; Lewis v. Williams, 15 T. 47. 2 Green v. Duncan, 35 T. 175. 3R. S. 1278; Merchant v. Bowyer, 3 Civ. App. 367 (22 S. W. Rep. 763). 4 Arnold v. Hockney, 51 T. 46. An application based on evidence of " certain- conduct of plaintiff which contradicts," etc., and evidence of letters "which virtually admit." etc., without the production of such letters, is too vague. Doll v. Mund'ine, 26 S. W. Rep. 87. G., H. & S. A. Ry. Co. v. Home, 69 T. 643 (9 S. W. Rep. 440). This was an ac- tion for damages for destruction of grass by fire, and it was stated that the absent witnesses would prove that the value of the grass was much less than plaintiff claimed, but how much less was not stated. This was held insufficient. Had the plaintiff admitted all that was stated, he could not have contradicted it at the trial by other witnesses, and the jury would have been without any guide as to the value of the grass, and the verdict would have been without evi- dence to support it, no matter what might be its amount. The plaintiff placed his damage at $5 an acre, and the jury allowed $3.50 an acre. There being noth- ing to show what value the absent witnesses would have placed upon the grass, the appellate court could not say that the applicant was prejudiced by the ab- sence of his witnesses. Green v. Crow, 17 T. 180. 7 Martel v. Hernsheim, 5 T. 205. The affidavit should not be so general in its- terms as to make it impossible to have a conviction for perjury upon it in case it should be wilfully false. Mays v. Lewis, 4 T. 38. 8R.S. 1277. I. CONTIM AN'CE OF A CAt> 403 the facts lie disclosed, the court should take them into cunsid. -ra- tion in determining upon the application ; ' it is proper for the court to look to tin- pleadings in such case, and consider the relevancy and materiality of the proposed evidence, and if it be irrelevant or im- material, the application may be overruled.-' application for postponement on account of the absence of witnesses, to obtain whose attendance no diligence is shown, is ad- d rosed to the discretion of the court; and no abuse of this discre- tion is apparent where the applicant does not state in a second application what he expects to prove by the witnesses, nor show in a motion for new trial that he has suffered injury from their non- attendance. 3 g 421. Process for witnesses. Failure to take out a subpoena or attachment for witnesses is fatal to an application for a continuance. 4 Due diligence is not shown by the statement that subpoenas were placed in the hands of the sheriff; the time should be stated. 5 The' application should state when and by whom the subpoena was served. 6 Where the sheriff is a party the subpoena may be served by his deputy. 7 If the sheriff's attendance as a witness is desired, he must be sub- pienaed; a failure will not be excused on the ground that it was expected that the sheriff would attend court in his official capacity. 8 As a snbpo-na. does not run beyond the county, the application, ought to show that the witnesses subpoenaed are residents of the county:' 1 and it must appear that the subpoena was served in time to enable the witnesses to attend. 10 If a witness fails to obey a sub- 1 Flournoy v. Marx, 33 T. 786; Williams v. Talbot, 27 T. 159. 2 Douglas v. N.-il. :{? T. 528. SRubreeht v. Powers, 1 Civ. App. 282; Campbell v. McCoy, 8 Civ. App. 2'.N rJ;? S. \v. !; )>. :i|i. Where a defendant asks for a continuance during tli.- trial, alleging surprise by plaintiff's being permitted to prove the contents of a lost notice by purol, it is held that he must state in what respect the evidence he ex- pects to procure will differ from that adduced by plaintiff; this ruling is made without reference to whether the application is a first or second application. Mo. Pac. Ry. Co. v. Kuthman, 2 App. C. C., g 463. Hensley v. Lytle, 5 T. -in;. Green v. Dunman, 35 T. 175; Robinson v. Martel, 11 T. 149. "Tittle v. Vanleer, 27 S. W. Rep. 736. An application for a continuance, made in May, 1883, on account of the absence of a witness residing in the county. \vlu> was alleged to have been subpoenaed in May, 1882, no other fact in regard to ilu>- diligence being shown, was properly overruled. The witness may have re- fused at a former term to obey the subpoena. City Nat Bank of Ft. Worth v. Stout, 61 T. 567. Blum v. Bassett, 67 T. 194 (3 S. W. Rep. 33). 8 Adair v. Cooper, 25 T. 548. a Ellis v. Wiley. 7 T. 134; Burditt v. Glasscock, 25 T V 45. lOPulliam v. Webb, 26 T. 95; Henderson v. State, 22 T. 593; Connor v. Samp- son, 22 T. 20. The issuance of a subpoena two days before the trial, for a wit- 40-4 CONTINUANCE OF A CAUSE. [ 422. poena, he may be compelled to attend by attachment, provided his fees have been paid or tendered ; l and if there be time to bring him in by attachment before the case is called for trial, the party ought to move promptly, and see that the attachment is issued and served. 2 In determining the correctness of the ruling of the trial court upon an application for a continuance otherwise apparently good upon its face, the question of diligence, where the subpoena has not been executed, would depend very much upon the time when de- fendant was cited, with reference to the date of the issuance of his subpoena for the absent witness; and the date of the service of the citation should be shown to enable the appellate court to determine .the question satisfactorily. 3 422. Whether witness fees should, be paid or tendered. An attachment will not issue for a witness who disobeys a sub- poena, unless it be shown by affidavit that his lawful fees have been paid or tendered to him. 4 Payment or tender of witness fees need 'not be shown on the first application ; 5 nor, it seems, on a second -application; especially if the absence is caused by sickness. 6 The point is* not definitely decided, however. The fact that no attach- ment can issue unless the fees have been paid or tendered is noticed, but this seems to be considered of little or no importance from the ness residing remote from the county seat, was held to show a lack of dili- gence. Parker v, Campbell, 21 T. 763; Hall v. York, 16 T. 18; Parker v. Leman, 10 T. 116. IR.S. 2267. 2 Rowland v. Wright, 64 T. 261; Bryce v. Jones, 38 T. 205. 3 G., C. & S. F. Ry. Co. v. Flake, 1 App. C. C., 253. On a first application for continuance it was not stated that ' due diligence " had been used to procure the testimony of the absent witness, but the date was stated when the sub- prena was placed in the hands of the officer. It stated that the witness had been served, but did not state when. The process was applied for when the plea of the applicant was filed on March 9, 1886, and the application to continue was made April 2, 1886. The application was properly overruled. Brown v. Na- tional Bank, 70 T. 750 (8 S. W. Rep. 599). Where a suit had been pending for over two years, and subpoena issued for the absent witnesses but a few days before the cause was called for trial, an ap- plication for continuance because of the absence of the witnesses was properly refused for want of due diligence to obtain the testimony. City of East Dallas v. Barksdale, 83 T. 117 (18 S. W. Rep. 329). See Tex. & Pac. Ry. Co. v. Snyder, 18 & W. Rep. 559. It seems that the service of a subpoena duces tecum, requiring a witness to pro- duce a certain article in court, is not diligence sufficient to authorize a continu- .ance if the article is not produced. Texas Express Co. v. Scott, 2 App. C. C., :72. * R. S. 2267. 5 Texas Transp. Co. v. Hyatt, 54 T. 213; H. & T. C. Ry. Co. v. Wheeler, 1 App. C. C., 170; Blum v. Basse tt, 67 T. 194 (3 S. W. Rep. 33). Dillingham .v. Ellis, 86 T. 447 (25 S. W. Rep. 618). -'!.] OOXTI.NTANCE OF A CAUSE. 405 liat it could not be known that an attachment would beneee.' 1 it was said that a mere service of a subpoena without. tender of fees is the slightest diligence that a party can use, but the matter seems to be left to be decided on the facts of each according to a just discretion. In Bryce v. Jones, 38 T. :><'."), it i* expivssly ruled that the fees of the witness must be tendered on a sen mi I or subsequent application. ?' 423. Diligence in taking depositions. I>ej>ositions of witnesses may be taken in all civil suits, whether the witness resides in the county where the suit is brought, or out of it. The failure to secure the deposition of a male witness resid- ing in the county in which the suit is pending will not be regarded tnt of diligence, where diligence has been used to secure his personal attendance by the service of subpoena or attachment under the rules of law, unless by reason of age, infirmity or sickness or official duty the witness will be unable to attend the court; or un- less he is about to leave or has left the state or county in which the suit is pending and will not probably be present at the trial. 2 Article L'L'IS of the Revised Statutes of 1879 provided for taking- the deposition of a female witness without regard to her place of nee, and it was held that the absence of a female witness was no cause for continuance when no proper diligence had been used to procure her evidence by deposition.* Afl witnesses residing out of the county are not required to obey a subjxi-ua, it would be negligence to omit the proper steps to pro- cure their testimony in time for the trial. 4 The application should clearly and fully set out to whom interrogatories were sent, the substance of the material testimony not obtainable then, the efforts to ascertain the whereabouts of witnesses, that their evidence will be at hand at. the next term of the court, and other like facts explaining fully the various things done constituting diligence. 5 Where a party to a suit residing in another county neglects to 'Tex. & Par. Ry. Co. v. Hall, 83 T. 675 (19 S. W. Rep. 121). See Doll v. Mun- dine. 7 Civ. App. 96 (26 S. W. Rep. - A.-ts 1879, p. 126; R. S. 2-,'7:5: DiHinghain v. Ellis, 8G T. 447 (23 S. W. Rep. 618). 3 Cotton Press Co. v. Bnnll-y. 32 T * O., C. & S. F. Ry. Co. v. Wheat, 68 T. i: (3 & W. Rep. 4 5 Tex. & Pac. Ry. Co. v. Hardin, 62 T. 367; Tex. & Pac. Ry. Co. v. Hopkins 2 App. C. C., 66; Tinsley v. Rusk Co., 42 T. 41 : Stinnett v. Rice, 36 T. 106. A. >t;itrmrrt that a party has made an effort to get the depositions of certain wit- nesses, by making out interrogatories, having them crossed by opposing coun- s.-l. who have agreed to waive commissions and consented that the depositions might be taken before any officer legally qualified, is not stating that due dili- gence contemplated by law. Tex. & Pac. Ry. Co. v. Hardin, 62 T. 367; L & G. N. Ry. Co. v. Ragsdale, 67 T. 24 (2 S. W. Rep. 313). 406 CONTINUANCE OF A CAUSE. [ 424. have his testimony taken by depositions, or for any reason chooses to take the risk of his attendance upon the court when there is time i'or taking his depositions, he is not entitled to a continuance on ac- count of his absence, although his testimony be material and his absence accidental. 1 A plaintiff is not entitled to a continuance to procure the evidence of his co-plaintiff, where diligence is not shown in the issuance of a commission to take his deposition, as well as in the filing of interrogatories. 2 424. Testimony not obtainable from any other source. On a second or subsequent application, if made for want of tes- timony, it must be stated that the testimony cannot be obtained from any other source. 3 "Where it appears that there is other tes- timony than that sought, the application should show on its face facts from which the court may determine whether the desired tes- timony is essential to the case of the applicant. 4 The affidavit should negative the supposition that there might be other witnesses by whom the facts could be proved. 5 A third application must state that testimony cannot be obtained from any other source, and that the continuance is not sought for delay, but that justice may be done. 6 1 Mayer v. Duke, 72 T. 445 (10 S. W. Rep. 565). Application was made for a continuance to procure the testimony of a witness. The suit was instituted January 9, but the party, with full knowledge that the testimony was necessary, took no steps to procure it until August 25 following, and it was held that the application was properly refused. Poole v. Jackson, 66 T. 380 (1 S. W. Rep. 75). A case having been upon the docket for so long as two years, a party, in his first application for continuance, is held to the most rigid requirements of the stat- utes. Watson v. Blymer Manuf. Co., 66 T. 558 (2 S. W. Rep. 353). A second continuance was properly refused to the defendant, a railway com- pany, upon its application, on account of the absence of an employee residing in another county, no effort having been made to take his depositions, his per- sonal attendance being expected, but was not secured on account of a leave of absence having been granted the witness by one of the officers of the defendant. E. L. & R. R. Ry. Co. v. Scott, 71 T. 703 (10 S. W. Rep. 99). It was not error to overrule a first application for continuance only stating as diligence that a com- mission had been obtained to take the testimony of the absent witnesses and sent to the general attorneys of the railroad company, the applicant, and not stating the time necessary to obtain the testimony. Missouri Pac. Ry. Co. v. Shuford, 72 T. 165 (10 S. W. Rep. 408). See W. U. Tel. Co. v. Rosentreter, 80 T. 406 (16 S. W. Rep. 25). An affidavit for second continuance not showing that funds were sent or pro- vided to defray the expense of taking the depositions of non-resident witnesses by commission does not show due diligence. Little v. State, 75 T. 616 (12 S. W. Rep. 965). 2 Merchant v. Bowyer, 3 Civ. App. 367 (21 S. W. Rep. 1016). 3 R. S. 1278; Campion v. Angier, 16 T. 91; Boatright v. Linam, 16 T. 243. 4 McMichael v. Truehart, 48 T. 216. 5 Wall v. State, 18 T. 682; Stinnett v. Rice, 36 T. 106. 6 Neeper v. Irons, 3 App. C. C.. 181. An application for a third continuance, which fails to show that the testimony expected from the absent witness can- 4^."), 4'Jrt.] MINL'ANCE OF A CAlbE. 4l7 425. Name and residence of witness. The name ami resilience of the absent witness must be stated on second and sulisetjiuMit applications. 1 "\Vhere the continuance ia asked on account of the absence of a witness who lives in the county, it is held that his name ought to be given, so that the court inuv be assured that the requisite diligence has been used. 2 An ap- plication which discloses that the applicant knew the town and state where the witness resided, but did not know the county in which the town was located until the day of filing the application, and that he could not then procure his testimony, was properly disregarded. 3 The distance of the residence of the witness from the court- house should be stated, so that the court may determine whether the subpoena was issued in time to procure the attendance of the witness. 4 ? 426. Absence of counsel. Absence of counsel when the case is called for trial is not a good cause for a continuance or postponement, unless it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge, to be stated on the record. 5 The absence of a particular attorney, the leading coun- sel in the case, who has prepared and studied the case, and has the papers, and on account of whose absence important testimony was not obtained, was held no ground for a continuance where such ab- sence was anticipated by the party and his attorney several weeks before court; and the importance of the business which called the attorney away was held not material. 6 The same ruling was made where the motion was made verbally, and not sworn to, and there was nothing to show that the absent attorney had not been sick for some time, and his absence, therefore, anticipated. 7 not be obtained from any other source, is fatally defective. When such an ap- plication cannot be sustained even under the statute prescribing the requisites of an application for a second continuance, it must, in order to be granted, show strong equitable grounds outside of the statute. Rowland v. Wright, 64 T. 261. * R. S. 1278; Burditt v. Glasscock, 25 T. Sup. 45. 2 Stoddart v. Garnhart, 35 T. 300. 3 G., H. & S. A. Ry. Co. v. Gage, 63 T. 568. That a witness was engaged in business near the court-house does not prove that his attendance could have been had, and is no sufficient reason for refusing the continuance. City of Corsicana v. Kerr, 75 T. 207 (12 S. W. Rep. 982). ' McMichael v. Truehart, 48 T. 216. 5 Rule 49. Haggerty v. Scott, 10 T. r,jr,. 7 Davis v. Zumwalt. 1 A pp. C. C., 596. In Page v. Arnim. 29 T. 53. it was held that A continuance u;is properly refused where the presence of the absent at- torney was not actually necessary. In V>'. U. Tel. Co. v. Brooks, 78 T. 331 (14 408 CONTINUANCE OF A CAUSE. [ 427, 428, 427. Matters of practice. The court is not bound to notice a motion for a continuance merely filed with the clerk, although the clerk may call attention to it. If neither the plaintiff nor his attorney is present when the case is called for trial, it may be dismissed for want of prosecu- tion. 1 If a continuance is improperly refused, and the party is compelled to take a nonsuit, a refusal to reinstate the case on motion is error. 2 A continuance of a cause carries it over to the next term. 3 And an entry in the transcript, " Continued by general order of court, from October term, 1868, to February term, 1871," the court re- garded as a memorandum of the clerk, and not as a part of the record. 4 428. ^Requisites of application. An application for a continuance is made by a motion in writing, setting forth sufficient cause. It is the usual practice to embrace the affidavit in the motion, but it must appear that the court was called to act upon the motion. 5 Although there may be an affidavit for a continuance in the record, yet if no motion appears to have been predicated upon it, the refusal of a continuance cannot be as- signed as error. 8 Nor does it follow that a cause was continued on affidavit, merely because an affidavit has been filed the entry of the order of continuance should show the fact. 7 "Where the application rests upon an equitable ground, the affi- davit should make a full statement of the facts. 8 The court cannot assume the existence of any fact necessary to authorize a continu- ance when the applicant fails or is unwilling to set forth such fact in the application. 9 S. W. Rep. 699), the inference is that if the presence of leading counsel is neces- sary to the proper defense of a case, a continuance should be granted, citing Strippleman v. Clark, 11 T. 296; Ward v. Cobbs, 14 T. 303. And see Cabel v. Hol- loway, 31 S. W. Rep. 201; Grounds v. Ingram, 75 T. 509 (12 S. W. Rep. 1118). lEddleman v. McGlathery, 74 T. 280 (11 S. W. Rep. 1100). 2 Peck v. Moody, 33 T. 84; Cotton v. State, 4 T. 260; Hensley v. Little, 5 T. 497; Western v. Woods, 1 T. 1. 3 McCoy v. Jones, 9 T. 363. 4 Morris v. Gordon, 36 T. 71. The defendant, late in the evening, presented 3 first application for continuance in statutory form, and the court, instead of then acting on it, gave the plaintiff until next morning to procure the attend- ance of the witnesses named therein, which, it seems, he did. No injury being shown to have resulted from this course, it is to be commended rather than con- demned. Rubrecht v. Powers, 1 Civ. App. 282 (21 S. W. Rep. 318). 8 Pennell v. Lovett, 15 T. 265. Spillars v. Curry, 10 T. 143; Pierson v. Tom, 10 T. 145. ' Prewitt v. Everett, 10 T. 283. 8 Stachley v. Peirce, 28 T. 328; Chilson v. Reeves, 29 T. 275. 9 Brown v. National Bank, 70 T. 750 (8 S. W. Rep. 599). Defendant knew of the testimony of the absent witness six weeks before the case was tried. The wit- OOXTINTANCE OF A CAl '- 409 In a civil case it is not necessary that the application should state that the absent witnesses were in attendance on the first day of the court. 1 429. Attorney or agent may make affidavit. The statute provides that whenever at the commencement or dur- ing the progress of any civil suit it may be necessary or proper for any party thereto to make an affidavit, such affidavit may be made by either the party or his agent or attorney. 2 This confers upon the attorney the same right to make an affidavit during the progress of a cause that the law confers upon the client. An affidavit for a continuance made by an attorney need not show that he had per- sonal knowledge of the matters stated. There may be cases, it is said, in which the subject-matter of the affidavit rests peculiarly within the conscience of the client, and in such cases the attorney making the affidavit may be required to state his means of informa- tion 'or knowledge of the facts stated; but the absence of witnesses, the materiality of their evidence, and the diligence used to procure their attendance, are facts that can be learned and discovered 1>\ the attorney as well as the client, and are often known to the at- torney when unknown to the client. 3 The fact that the attorney or agent could not know that the witness is not absent by the pro- curement or consent of his principal, if important as a reason why the agent should not make the affidavit, as held in Robinson v. Martel, 11 T. 75, is important only on a second or subsequent ap- plication. 4 430. Counter-affidavits. On second and subsequent applications, counter-affidavits will be received to controvert the allegation of diligence in obtaining testi- ness had promised to be present, but moved out of the county before trial, and no subpoena had ever been issued. The facts expected to be proved were not stated, nor that the applicant had a reasonable expectation of procuring hi& testimony by the succeeding term of the court. The motion was adln >-> .! t<> the discretion of the court, and the court did not abuse its discretion in over- ruling it Campbell v. McCoy, 3 Civ. App. 298 (23 S. W. Rep. 34). 1 Earth v. Jester, 3 App. C. C., 2J.'. 2R.S. 5. Doll v. Mundine, 84 T. 315 (19 S. W. Rep. 394). The case of Robinson v. Mar- tel, 11 T. 149, holding that the application must show that the attorney had personal knowledge of the facts stated, was decided before the present statute was adopted. But with the statute in force it was held in Brown v. State, 30 T. 282, that there was no error in overruling an application for a continuance on the ground of absent testimony, where the affidavit was made by the attor- ney and no reason was shown why the client did not make it himself. The same ruling was made in Stinnett v. Rice, 36 T. 106, and it was further held that the affidavit should show affirmatively that the client was not attempting to- evade the requirements of the law by procuring others to swear to a state of facts that he could not swear to. See, also, Baldessore v. Stephanes, 27 T. -T>5. * Blum v. Bassett, 67 T. 194 (3 S. W. Rep. 33). 410 CONTINUANCE OF A CAUSE. [ 431-433. mony. 1 They are received in criminal cases, but not, it seems, to contradict the oath of materiality. 2 Their use is spoken of in other cases. 3 431. Motion for continuance defeated by admission of facts. An offer to admit a fact defeats a motion for a continuance in order to obtain testimony to prove it ; but an admission that the absent witness will swear to the facts proposed to be proved by him is not sufficient the facts must be admitted. 4 432. Granted on terms. A party cannot reject a continuance offered on terms, and take the chances of a verdict in his favor, and then ask a revision of the ruling of the court on the merits of his motion, if the judgment be against him ; it seems that if a party accepts the continuance, and properly saves an exception to the ruling imposing costs, and the judgment is in his favor on final trial, the appellate court may re- vise the ruling as to costs. 5 In an early case it was held that the party on whom the terms are imposed has his election to take the continuance on the terms imposed, or to reject it and go to trial, and that if he goes to trial, and the verdict is against him, and he believes the court erred in ruling him to trial when he had shown a good cause for continuance, he may have the judgment of the court overruling his motion revised on error or appeal, after mov- ing the court below for a new trial on the ground of his being ruled to trial against his showing for a continuance. 6 433. Exceptions to rulings. Exceptions to the rulings of the court on a motion for a continu- ance must be saved by bill of exceptions, and urged in a motion for new trial or in arrest of judgment, to be available as ground of error. 7 Though the judgment sought to be reversed may show that 1 Bryce v. Jones, 38 T. 205. 2 Hyde v. State, 16 T. 445. 3 Baker v. Johnson, 16 T. 133; Tex. & Pac. Ry. Co. v. Hoskins, 2 App. C. C., 66. 4 Fiske v. Miller, 13 T. 224; Page v. Arnim, 29 T. 53. And see McMahon v. Busby, 29 T. 191, where it is stated that the question is not settled. See, also, a suggestion in G., H. & S. A. Ry. Co. v. Home, 69 T. 643, 647 (9 S. W. Rep. 440), l rora which it appears that an admission of the truth of the proposed evidence is contemplated. s Couts v. Neer, 70 T. 468 (9 S. W. Rep. 40). 6 Burton v. Power, 4 T. 380. 7 Rule 70: Shaw v. Adams, 2 App. C. C., 177; Tex. & Pac. Ry. Co. v. McAllis- ter, 59 T. 349; Morris v. Files, 40 T. 374; Campion v. Angier, 16 T. 93; Tex. & Pac. Ry. Co. v. Mallon, 65 T. 115; Robson v. Jones, 33 T. 324; McMahan v. Busby, 29 T. 191; G., C. & S. F. Ry. Co. v. Carter, 23 S. W. Rep. 1023; Tex. & Pac. Ry. Co. v. Dunn, 17 S. W. Rep. 822: Strain v. Greer, 19 S. W. Rep. 513; City of Sulphur Springs v. Weeks, 18 S. W. Rep. 489. 4)53.] COM IM. \.\CE OF A 0&U8S. 411 a continuance was applied for. which was overruled, and exceptions to the action of the court taken, if there be no bill of exceptions in the record showing the action of the court and the circumstances attending the overruling of the application for continuance, the ruling will not be revised on appeal. 1 One reason for the rule is, that the trial judge should have an opportunity in signing a bill of exceptions to state any facts which may have come to his knowl- edge, and which induced him to overrule the motion. It is held, also, that the bill of exceptions should generally set out in full the affidavit on which the motion was founded, so that the very affi- davit on which the ruling was made may be identified. 2 When by an amendment of the petition a defendant is entitled to a continuance on the ground of surprise, such continuance must be asked for and exceptions to its refusal taken and shown by bill of exceptions. It is not sufficient to raise the question for the first time in the motion for a new trial. 3 The bill of exceptions should fully state the grounds on which the court acted in overruling the application, and without this it is held that the appellate court might well refuse to examine an assign- ment of error, as for the want of a proper bill of exceptions. 4 An application for a new trial because of the refusal of a contin- uance must show facts constituting a meritorious defense which applicant was prevented from pleading, and such statement must be sworn to. 5 1 Philipowski v. Spencer, 63 T. 604. 2 Bruckmiller v. Wolf, 37 T. 342. 'Cunningham v. State, 74 T. 511 (12 S. W. Rep. 217); Contreras v. Haynes, 61 T. 103. < Tex. & Pac. Ry. Co. v. Hardin, 62 T. 367. Hastings v. Winters, 26 S. W. Rep. 2S3. CHAPTER XXIII. OF APPEARANCE DAY AND JUDGMENT BY DEFAULT. 434. Appearance day; call of docket. 435. Time of filing answer. 436. Judgment by default, when taken. 437. Where some of the defendants answer. 438. Form of judgment by default. 439. Effect of different forms of judg- ment by default. 440. What admitted by a default. 441. Judgment by default set aside, when. 434. Appearance dcy; call of docket. The second day of each term of the district or county court is termed appearance day. It is the duty of the court on appearance day of each term, or as soon thereafter as may be practicable, to call in their order all the cases on the docket which are returnable to such term. 1 A case appealed from a justice's court is an appearance case, and should not be called for trial until appearance day. A judgment against the defendant on the first day of the term, in his absence, is error. 2 The statute contemplates that such a case should be called on appearance day, and no judgment by default can be taken unless it be made to appear that five days' notice of the appeal has been given before the first day of the term. 3 When the papers in such a case are not filed in the appellate court on or before the first day of the term after the appeal is taken, the case is not before the court for disposition at that term. 4 On the first day of the term the court calls the docket of cases other than appearance cases, and notes whether a jury trial has been demanded, and by which party. This is the time to demand a jury in such cases. 5 The docket of appearance cases is called on the second day of the term for the same purpose, and a jury may then be demanded. 6 435. Time of filing answer. In all cases in which the citation has been personally served, at least ten days before the first day of the term to which it is return- * R. S. 1280, 1281. *Hadden v. Smith, 28 S. W. Rep. 458. 3 R. S. 1670. R. S. 1228, 1229. ,M KXT BY DEFAULT. 415 439. Effect of different forms of judgment by default. A judgment by nil tetated. Judgment was then rendered against the defendants and the sureties upon the ivplevy Ixand. On appeal liy the sureties on the replevy bond, it was held that the court erred in overruling the motion to quash the attachment. But the confession of judgment was held to operate as a release of all errors in the record, and as binding upon the secu- rities upon the replevy bond as well as upon their principals. Garner v. Bur- leson, 20 T. 348. 2 Frazier v. Todd, 4 T. 461; Goodlett v. Stamps, 29 T. 121. Goodlett v. Stamps, 29 T. 121 ; Holland v. Cook, 10 T. 244 4 Long v. Wort ham, 4 T. 381: Swift v. Faris. 11 T. 18; Guest v. Rheim, 16 T. 549; Watson v. Newsham, 17 T. 437; Prince v. Thompson, 21 T. 480; Storey v. 410 APPEARANCE DAY AND JUDGMENT BY DEFAULT. [ 440. of trespass establishes the plaintiff's right to recover, and fixes the defendant's liability ; and the province of the jury is simply to as- certain the amount of damage which the plaintiff has sustained by reason of the trespass. And where there are several defendants, the judgment by default fixes the liability of all. 1 In trespass to trv title and for damages, a default establishes the plaintiff's right to the land ; damages could be waived. 2 While the allegations of the pleading of one in whose favor a judgment by default is rendered must be taken as proved, yet if the pleading does not set forth the cause of action as to names of par- ties, dates and amount claimed, so as to enable the court to render judgment without resorting to evidence aliunde, no judgment by default can be sustained. 3 The default does not admit anything beyond the definite issuable facts well pleaded by the plaintiff. 4 Conventional interest will be allowed as alleged. 5 A judgment by default will be set aside, or the judgment arrested, if the allegations of the petition are not set forth with such sub- stantial accuracy, or with sufficient certainty, as to inform the court what judgment to render without looking for information to proofs not within the allegations, or where the petition shows -no cause of action. 6 richols, 22 T. 87; Tarrant v. Lively, 25 T. Sup. 399; Welch v. Holmes, 2 U. C. A-2: Johnson v. Bowling, 1 App. C. C., 1090. 1 Clark v. Compton, 15 T. 32. 2 Welch v. Holmes, 2 U. C. 342. In a suit on a note and mortgage the default admits the execution of the mortgage, and the court can, without the interven- tion of a jury, render judgment for the amount of the note and for the sale of the mortgaged property. Ricks v. Pinson, 21 T. 507; Morrison v. Van Bibber, 25 T. Sup. 153. In a suit on a note purporting to have been given for the purchase of land, which is fully described in the petition, on default, judgment will be given for the amount of the note and sale of the land. Niblett v. Shelton, 28 T. 548. But to support a judgment of foreclosure, the petition must fully describe the property to be sold. Pressley v. Testard, 29 T. 199. sKimmarle v. Railway Co., 76 T. 686(12 S. W. Rep. 698); Mason v. Slevin, 1 App. C. C., 11. < Hawkins v. Haney/1 App. C. C., 723. 5 Whittaker v. Wallace, 2 App. C. C., 560. A petition on a note did not al- lege conventional interest, and the prayer was for legal interest. A judgment by default, giving ten per cent, interest, the rate stipulated in the note, was re- versed and rendered for legal interest. Graves v. Farquhar, 20 T. 455. 6 Johnson v. Dowling, 1 App. C. C., 1091, citing Hall v. Jackson, 3 T. 305; Johnson v. Davis, 7 T. 173. Where the petition prays for the setting aside of an alleged fraudulent transfer of property, a money judgment is not authorized. Carpenter v. Knapp, 1 App. C. C., 1111. The allegations in the petition must be sufficient to constitute a legal basts on which to predicate the judgment. Hall v. Jackson, 3 T. 305; Pressley v. Testard, 29 T. 199. It must appear that the writing produced is the one set out in the petition, otherwise the court will not permit it to be the foundation of any as- sessment by the clerk. But mere clerical variances, or other matters by which the rights of the parties would not be materially affected, are to be disregarded, ll.] APPF.ARAKCE DAY AND JUDGMENT BY DEFAULT. 417 A defendant against whom a judgment by default has been ren- dered cannot complain that plaintiff's claim for damages is excess- ive, if, after overruling his application to set aside the default, the court permitted him to introduce evidence to chow the true extent of damage sustained. 1 It seems that if the contract sued on is void on its face, the court will so declare ; 2 and a judgment for usurious interest is erroneous. 1 A sworn claim for damages is not an account within the meaning of the statute, 4 and the items therein and the amount claimed thereby are not admitted by a default. Other proof than such claim must be offered to support a judgment.* An account must be verified as required by statute to support a judgment by default. 6 The petition must show that the court has jurisdiction. 7 441. Judgment by default set aside, when. A judgment by default may be set aside on motion of the de- fendant, when it is shown that there was a good defense, and good grounds are shown why it was not set up at the proper time. 8 But it will not be set aside on the ground merely that the defendant's attorney, through mistake, supposed that no defense was to be made ; 9 or to let him in to plead the statute of limitations. 10 A judg- ment by default will be set aside or arrested, where the petition does not set forth a cause of action with substantial accuracy, or with sufficient certainty to inform the court what judgment to render, without looking for information to proofs not within the allegations. 11 A motion to set aside or arrest the judgment must It was therefore held that it was not sufficient ground for reversing a judgment by default, that the petition described a note dated January 3, 1855, to become due on the 1st of March next, and the note on which the judgment was ren- dered was dated January 3, 1856, to become due on the 1st of March next. Trabue v. Stonum, 20 T. 453. In an action on a life insurance policy, where the petition alleges payment of premium, proof of payment need not be made to support a judgment by default Union Cent Life Ins. Co. v. Lipscomb, 27 S. W. Rep. 307. 1 H. & T. C. Ry. Co. v. Burke, 55 T. 323. 'Mosely v. Smith, 21 T. 441. Campbell v. State Central Bank, 1 App. C. C., 378, R. a 2323. H. & T. C, Ry. Co. v. White, 1 App. C. C., 164; T. & P. Ry. Co. v. Looby, 1 App. C. C., 577. 6 Duer v. Endres. 1 App. C. C., 323. T Rogers v. Harrison, 1 App. C. C,, g 494 Watson v. Newsham, 17 T. 437; Goss v. McClaren, 17 T. 107; Foster v. Martin, 20 T. 118; Dowell v. Winters, 20 T. 793; Tarrant Co. v. Lively. 25 T. Sup. 399; Aldridge v. Mardoff, 32 T. 204; Jones v. Langham, 83 T. 604. The nature of the defense must be shown by the affidavit Ellis v. Bonner, 27 S. W. Rep. 687. Crammond v. Roosevelt, 2 John. Gas. 282; Scrivner v. Malone, 30 T. 77i Foster v. Martin, 20 T. 118; Dowel! v. Winters, 20 T. 79i 11 Hall & Jones v. Jackson, 3 T. 305; Johnson v. Davis, 7 T. 173. 2? 418 APPEARANCE DAY AND JUDGMENT BY DEFAULT. [ 441. be made within two days after final judgment is entered. 1 When a motion to set aside the judgment was filed thirty-one days after default, but within two days after the writ of inquiry was executed and judgment final was rendered, it was held to be in time. 2 A motion to set aside a judgment by default must be decided at the term at which it is filed. If it goes over to the next term, it is discharged by operation of law. 3 Where it is shown that a party in default was not negligent, but acted in good faith, and that lie suffered a default through mistake and ignorance of the law, a state of facts is shown which makes it inequitable to permit the judgment to stand. 4 Where a judgment by default is set aside at the term, at which it was rendered, the action of the court will not be revised, unless it should be made to appear that the court had abused its discretion to the injury of the opposite party. 5 1 R S. 1373; Foster v. Martin, 20 T. 118. In Aldridge v. Mardoff, 32 T. 204, it is said to be a matter of discretion in the court below whether it will entertain a motion for a new trial which was entered after the lapse of two days after judg- ment was rendered, but satisfactory grounds for the delay must be shown. 2 Edwards v. James, 13 T. 52. 3 R S. 1374; Thomas v. Neel, 4 App. C. C., 291, citing McKean v. Ziller, 9 T. 58, and Laird v. State, 15 T. 317. It is held that where an action is brought to set aside a judgment by default the proceedings should show why relief was not sought at the term at which the judgment was rendered. Rodriguez v. Espinosa, 25 S. W. Eep. 669. 4 Marx v. Epstein, 1 App. C. C., 1317. A judgment by default on an open ac- count should have been set aside when, two days after the judgment was taken, the defendant, in an uncontradicted affidavit in support of his motion, showed the serious sickness of the attorney to whom his defense was confided at the time the answer should have been filed, and his own sickness then and at the time of making the motion, coupled with a specific statement of a meritorious defense, sufficient, if proved, to have defeated the action. Goodhue v. Meyers, 58 T. 405. A party to an action for the trial of the right of property, whose at- torney, after entering an appearance, had abandoned the case before pleading, received from the attorney of the opposing party the promise that, under the circumstances, he would take no action in the case without notifying him. He was notified, but the notice was so short that he could not reach the court-house in time to prevent a judgment against him. It was held that the judgment by default should have been set aside, and this though it was taken on the applica- tion of the partner of the attorney who had promised to give notice. Field v. Fowler, 62 T. 65. A default judgment was properly set aside where the war- rantor, a party defendant, agreed to defend the possessor's title, and was ready to do so, but was told by plaintiff's counsel that the suit had been dismissed, for him to go home and do nothing more in the matter, and the warrantor relied on this statement and so informed the possessor, and they made no further defense. Where the attorney knew the relation between warrantor and possessor, and they were induced to act on his statement, that the statement was fraudulently made and known by the attorney to be false, need not be proved. Rodriguez v. Espinosa, 25 S. W. Rep. 669. sNorthington v. Tuohy. 2 App. C. C., S 327, citing Sweeney v. Jarvis, 6 T. 39; Goss v. McClaren, 17 T. 117; Spencer v. Kennard, 12 T. 180. The rule is that the action of the lower court in granting a new trial will not be revised. Puckett v. Reed,iS T. SOS; Freeman v. Miller, 53 T. 372; Marx v. Epstein, 1 App. C. C., 1317. CHAPTER XXIY. CALL OF CASES ISSUES OF LAW. 442. Call of cases for trial; to be tried when called. 443. Day set for jury docket; demur- rers, etc., to be disposed of; summoning jurors. 444 Call of non-jury docket. 445. Issues of law and dilatory pleas, when disposed of. 446. Motions and exceptions to mer- its, when decided. 447. Exceptions undisposed of on call of case; deemed waived, when; costa 448. Trial amendment; repleader; no trial on immaterial issue. 449. Synopsis of pleadings may be made up and read. 450. Abandonment of part of cause of action. 442. Call of cases for trial; to be tried when called. All suits in which final judgments have not been rendered by de- fault must be called for trial in the order in which they stand on the docket to which they belong, unless otherwise ordered by the court. Every suit must be tried when it is called, unless it be con- tinued, or be postponed to a future day of the term, or be placed at the end of the docket, to be called again for trial in its regular order. 1 "Without the consent of the judge parties cannot agree to set a case for trial on any day of the term other than upon its regular call upon the docket. 2 A postponement of a case when called is within the discretion of the court. 3 The statute 4 contemplates that cases shall be docketed and num- bered in the order in which the petitions are filed. In making up the jury civil docket the same order should be observed as on the general docket, and the provisions of article 1287 of the Revised Statutes should be complied with in the disposition of cases on that docket, unless for good cause shown the court should otherwise direct. If, through inadvertence, the clerk shall not place cases on the jury docket in their proper order, 5 then in calling cases for trial they should be called in their proper order as determined by num- ber. In Kirkland v. Sullivan, 43 T. 233, it was held reversible error to call and force a party to try a cause out of its order; but the stat- i R. S. 1287, 1288. SHolliday v. Holliday, 72 T. 581 (10 S. W. Rep. 690). 3Capt v. Stubbs, 68 T. 222 (4 S. W. Rep. 467). *R. S. 1177-1179. S. 3193. 120 CALL C7 OASES ISSUES OF LAW. [443. ute in force when that case was tried is unlike that now in force, in that it required all cases to be tried in their order, "unless other- wise ordered by the court, with the consent of the parties or their attorneys" l The statute now in force recognizes the power of the court to require a ciuse to be tried out of its order, without refer- ence to the consent of the parties. The exercise of this power may be revised on appeal, but it is incumbent on the party seeking a revision of the action of the court in this respect to show that ho was injured by the ruling. 2 * Without undertaking to decide exactly how and when the order shall be made that relieves a case from the express requirement that it shall be called for trial in the order in which it stands on the docket, it is held that the act alone of trying such case when called up before its time by one of the parties is not equivalent to such order. It is doubted whether an established practice without a previous order of taking up a class of cases out of their order can under any circumstances be regarded as equivalent to or dispensing with such an order. 3 443. Day set for jury docket; demurrers, etc., to be disposed of; summoning jurors. The court, by an order entered on the minutes, designates a day of the term for taking up for trial the causes on the jury civil docket at all subsequent terms, until changed by a like order; but. in case of change, it shall not take effect until the succeeding term of the court. In all cases in which juries have been demanded by either party, all questions of law, demurrers, exceptions to pleadings, etc., must, as far as practicable, be heard and determined by the court before the day designated for the trial of said jury causes, and all jurors must be summoned to appear on the day of the term so des- ignated. 4 A jury docket is required to be kept by the clerks of the district and county courts, and cases in which a jury has been allowed are entered therein in their order. 5 1 P. D. 1461. *Mo. Pac. Ry. Co. v. Shuford, 72 T. 165 (10 S. W. Rep. 408). 3 Bostvvick v. Bostwick, 73 T. 183. A party cannot complain at the second calling for trial at the same term of a cause upon the jury docket which had been passed to the end of the docket, when all cases preceding it at the time it was so passed had been tried or continued, although other cases placed upon the docket subsequent to the passing of the case were not disposed of. Pac. Expr. Co. v. Real Estate Ass'n, 81 T. 81 (16 S. W. Rep. 792). 4 R. S. 1289, 3199. 5R. S. 3198. In Tex. Cent. Ry. Co. v. Rowland, 3 Civ. App. 158 (22 S. W. Rep. 134), it was held that the court did not err in requiring defendant to go to trial on the second day of the term, though the case was a jury case and no day had been fixed for calling the jury docket. When April 20, 1891, was the day for hearing and deciding questions of law, U, 445.] CALL OF CASES ISSUES OF LA.W. 421 ?' 444. Call of non-jury docket. The docket of cases in which jury trials have not been granted may he taken up at such times and in such manner as not unneces- sarily to interfere with the dispatch of business on the jury docket. 1 445. Issues of law and dilatory pleas, when disposed of. Pleas to the jurisdiction, pleas in abatement, and other dilatory pleas and demurrers, not involving the merits of the case, must be determined during the term at which they are filed, if the business >f the court will permit. 2 It is provided by rule that all dilatory pleas, and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, must be tried at the first term to which the attention of the court is called to them, unless passed by agreement of parties with the consent of the court; and that all such pleas and motions must be first called and disposed of before the main issue on the merits is tried. 3 When a case is called for trial, the issues of law arising on the pleadings, and all pleas in abatement, and other dilatory pleas re- maining undisposed of, must be determined, and it is not a cause for the postponement of a trial of the issues of law that a party is not prepared to try the issues of fact. 4 The sufficiency of the pleadings ought to be settled before pro- ceeding on the merits, and the practice of attacking the pleadings on the trial by objecting to the evidence is discountenanced, as tend- ing to confusion, uncertainty and delay. 5 A plea of personal privilege must be disposed of at the first term after it is filed, unless other business prevents its consideration, or it is continued by consent of parties. 8 Pleas and demurrers not called to the attention of the court and disposed of are deemed waived; 7 the rule applies to a plea of another action pending. 8 liy the custom and usage of the court, in jury cases, and on that day the docket was called and all parties given opportunity to present their exceptions, and none were presented to the answer of a defendant, which had been on file since November 21, 1890, but on the day of trial, April 23, 1891, exceptions were filed by the plaintiff, and after announcement of ready for trial action by the court upon them was sought, the refusal of the court to entertain them was not an abuse of its judicial discretion, Briggs v. Rush, 1 Civ. App. 19 (20 S. W. Rep. 771). 1 R. 8. 1290. 2 R a 1269. 3 Rule 24; Huffman v. Hardeman, 1 S. W. Rep. 575. R.& 1291. s Booth v. Pickett, 53 T. 436; Carter v. Roland, 53 T. 540; Harris v. Spence, 70 T. 616 (8 a W. Rep. 313). 6 Oreswell Ranche & Cattle Co. v. Waldstein, 28 S. W. Rep. 260. " Sup. Cotn'd'y Knights of Golden Rule v. Rose, 62 T. 321; Floyd v. Rice, 28 T. 341: Rowlett v. Fulton, 5 T. 458; Chambers v. Miller, 9 T, 236; Bonner v. Glenn, 79 T. 531 (15 S. W. Rep. 572). > .Maxwell v. First Nat. Bank, 24 S. W. Rep. 848. 422 CALL OF CASES ISSUES OF LAW. [ 416-448. 446. Motions and exceptions to merits, when decided. All motions which go to the merits of the case, and all excep- tions, general and special, which relate to the substance or to the form of the pleadings, must be decided at the first term of the court when the case is called in the regular order for trial on the docket, if reached, whether there be an announcement on the facts or not, unless passed by agreement of parties with the consent of the court. 1 "Where general and special demurrers to an amended original petition were filed at the term of the court at which they were dis- posed of, although not filed until two terms after the filing of the amended petition itself, it was held that the above rule had no ap- plication. The action of the court in overruling a demurrer is not a final adjudication, and it is proper for the court at a later term, on renewal of the demurrer during the pendency of the cause, to revise the former ruling if erroneous. Thus, general and special demurrers to an original petition were overruled, and at the third term of the court afterwards were sustained to the first amended petition, which plaintiff claimed contained substantially the same cause of action as the original petition. 2 447. Exceptions undisposed of on call of case; deemed waived, when; costs. When the case is called for trial, the exceptions, if any remain undisposed of, must be presented for determination, and must then be decided before proceeding to the trial of the case on the facts ; if not presented, they will be adjudged waived, and must be so en- tered on the minutes of the court, the cost of filing to be taxed against the party filing them, and they will constitute no part of the final record, unless some question be raised upon the action of the court in reference to them, and they are presented in a bill of exceptions. 3 448. Trial amendment; repleader; no trial on immaterial issue. When the exceptions have been presented and decided, leave may be granted to either or both parties to file an amendment in one instrument of writing, separate from those which had been pre- viously filed by each, which shall close the pleadings in the case, to be. then determined by the court, so as to decide all the questions of sufficiency arising upon them. In making this amendment, the party must refer distinctly to such instrument as he desires to amend, by name and number, as in the other amendments, without repleading the whole of it, but may succinctly state such additional 1 Rule 25. 2 Burrows v. Gonzales County, 5 Civ. App. 232 (23 S. W. Rep. 829). 8 Rule 26. I 440.] gALL OF CASES ISSUES OF LAW. 423 facts to be added thereto as he may desire. This amendment is styled and indorsed " plaintiffs" or " defendant's trial amendment." If the case should not be then tried, the party or parties shall re- plead, as in other cases of amendment. 1 The court, when deemed necessary in any case, may order a re- pleader on the part of one or both of the parties, in order to make their pleadings conform substantially to the rules. 3 . The court is not required to allow a case to go to trial on the facts when the pleadings are obviously so defective that a material issue has not been formed ; in such case the court must call the attention of the parties to such immaterial issue, so that the time of the court may not be wasted. 4 It was not intended by the rules that a trial amendment should be made to include pleadings which were not demanded by the rul- ings of the court upon exceptions filed to other pleadings. A trial amendment conies too late after the parties have entered upon the trial ; when it is offered after a jury is partially impaneled it should not be allowed.* It is no cause of complaint that, after exceptions had been overruled, a trial amendment was allowed supplying in detail the defects attacked by the exceptions. Such action is not in conflict with rule 27. 5 When a case is called for trial and exceptions to the answer are sustained, a trial amendment is the proper technical pleading in order. The court has the discretion to relax the rule in the inter- est of justice. It may allow an original amended answer to be filed. If new matter be then set up that plaintiff is not prepared to meet by pleading or evidence, he may amend, and even continue the cause if necessary. Such amendment, no injury being shown, is not error. 6 A trial amendment by leave of the court may be filed whether the demurrer to the pleading amended be sustained or overruled by the court. 7 5 449. Synopsis of pleadings may be made up and read. When the questions of law, if any, have been determined by the court, the judge may, before proceeding to trial, by the aid of the counsel, have the pleadings that have been held sufficient, or have not been excepted to, read over, if deemed necessary, and may make a brief memorandum of the facts stated or issues presented in the pleadings, and may read them out before the trial commences, so as 1 Rule 27. 2 Rule 29. 'Rule 32. 4 Contreras v. Haynes, 61 T. 103. Moore v. Moore, 73 T. 382 (11 S. W. Rep. 396). 6 Radam v. Capital Microbe Destroyer Co.. 81 T. 122 (16 S. W. Rep. 990). " Tex. & Pac. Ry. Co. v. Huffman, 83 T. 286 (18 S. W. Rep. 741). 424 CALL OF CASES ISSUES OF LAW. [ 450. to inform the parties of the view which is entertained by the judge of the matters of fact in issue as presented by their pleadings, 1 450. Abandonment of part of cause of action. A party who abandons any part of his cause of action or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were not tried. He will bo taxed with the cost incurred upon the pleading so abandoned ; also with the cost incurred upon pleading in support of which no evi- dence was offered, to be determined by the court on motion at the term of the trial, and not afterwards. 2 Parties in open court may withdraw from a suit on trial matters which would otherwise be concluded by the judgment. 3 1 Eule 28. 2 Rule 33. 3 Freeman v. McAninoh, 6 Civ. App. 644 (24 S. W. Rep. 922). CHAPTER XXV. TRIAL BY THE COURT. 451. General rules. I 453. Case submitted to judge to be 458. Agreed case. decided during the term. 451. General rules. The rules prescribed for the trial of causes before the jury gov- ern in trials by the court so far as they are applicable. 1 Xo jury trial is allowed in any case unless application be made therefor and the jury fee deposited as provided by law. 3 Where the trial is by the court, the judge is required, at the re- quest of either party, to state in writing the conclusions of fact found by him separately from the conclusions of law; and the con- clusions both of fact and of law must be filed with the clerk, and constitute a part of the record. 3 The trial by the court is conducted in the same manner as the trial by jury. The examination of witnesses is conducted in the same manner, and objections to the testimony made in the same way. 4 The admission of incompetent evidence is not gene rally a ground for reversal, unless it is manifest that it had an influence upon the finding of the court. 5 In some cases it is held that if im- proper evidence is admitted over objections, and there is nothing in the record to show that it was not considered by the judge in de- ciding the issue, the court on appeal cannot say that he was not influenced by the evidence, and hence must hold that there was error; 6 it must appear from the record that the judge finally con- i R. S. 1292. 2R.&3188. 3189, 8194,3195. R. S. 1388. 4 The rules which regulate the admission of evidence in trials by jury do not apply strictly where the trial of the fact is by the court. The court will dis- criminate between evidence which is competent to establish or disprove the issue, and that which is not; and though incompetent evidence may have been heard by the court, it will not be a ground of reversal of the judgment, if rightly rendered, upon evidence which is competent, Smith v. Hughes. 2'3 T. 248; Beaty v. Whituki-r, '22 T. 526; Milton v.Cobb, 31 T 539; Millican v. Milli< .m. 34 T. 426; Clayton v. MrKinnon, 54 T. 206; Schleicher v. Markward, 61 T. 99; Cairrell v. Higgs, 1 U, C. 58; Sharp v. Schmidt, 62 T. 263; Garcia v. Gray, 67 T. 232 (3 S. W. Rep. 42); Beham v, Ghio, 75 T, 87 (12 8. W. Rep. 996); Ballast t-r v. Mann, 24 S. W. Rep. 561, s Moore v. Kennedy, 81 T. 144 (16 S. W. Rep. 740); Andrews v. Key, 77 T. 35 (13 8. W. Rep. 640). Wagoner v. Rupley, 69 T. 700 (7 8, W, Rep. 80), 42C TKIAL BY THE COURT. [ 452. eluded that the evidence was illegal, and did not consider it in his decision of the case. 1 If it is evident that the court based its find- ing on other and sufficient evidence, the admission of improper evi- dence becomes immaterial. 2 The decision of the judge is entitled to the same presumptions in its favor as are indulged in favor of the verdict of a jury. 3 The judgment will not be reversed if there is any evidence to support it. 4 In trials of fact without the aid of a jury, the question of the admissibility of evidence, strictly speaking, can seldom be raised, since whatever be the ground of objection, the evidence objected to must of necessity be read or heard by the judge in order to deter- mine its character and value. In such cases the only question in effect is the sufficiency and weight of the evidence. 5 452. Agreed case. The parties may in any case submit the matter in controversy between them to the court upon an agreed statement of facts made out and signed by them or their counsel, and filed with the clerk, upon which judgment may be rendered as in other cases. The state- ment so agreed to and signed and certified by the court to be cor- rect, and the judgment rendered thereon, constitute the record of the cause. 6 The pleadings in such a case become immaterial, the judgment of the court being given upon the law arising upon the facts; and upon review in the appellate court, such judgment will be pronounced as should have been pronounced by the trial court. As the facts are agreed upon, and not determined upon the evidence, the law upon the facts is alone to be decided. 7 i Buzard v. Jolly, 6 S. W. Rep. 422. 2 Kenner v. Coffee. 17 S. W. Rep. 235; St. Louis, A. & T. Ry. Co. v. Turner, 1 Civ. App. 625 (20 S. W. Rep. 1008); Loomis v. Stewart, 24 S. W. Rep. 1078; Eckford v. Berry, 27 S. W. Rep. 840; Fowler v. Chapman, 1 App. C. C., 967; Grace v. Koch, 1 App. C. C., 1062. 3 Callahan v. Patterson, 4 T. 61; Gilliard v. Chesney, 13 T. 337; Bird v. Pace, 26 T. 487. But in Eborn v. Cannon, 32 T. 231, it is said that when a jury is waived, and the facts as well as the law are submitted to the court, the supreme court will have less hesitation in revising its action than if there had been a finding of the facts by a jury. * Burris v. Lambeth, 1 App. C. C., 25; Adkinson v. Garrett, 1 App. C. C., 45; Mitchell v. Dallas City Gas Light Co., 1 App. C. C., 133; Shaw v. Parvin, 1 App. C. C., 367; Faulkner v. Warren, 1 App. C. C., 661; Wilkins v. Weller, 1 App. C. C., 876. 5 Hensley v. Bagdad Sash Factory Co., 1 App. C. C., 718; McGaughey v. Meek, 1 App. C. C., 1195; Franklin v. Hardie, 1 App. C. C., 1219; Wade v. Buford, 1 App. C. C., 1336. 6 R. S. 1293. 7 Chappel v. Mclntyre, 9 T. 161; Parker v. Portis, 14 T. 166; Clay v. Holbert, 14 T. 189; Wilkinson v. Wilkinson, 20 T. 237. Where a jury has been waived and the cause submitted to the court below, as well upon the facts as the law, it is usual for the appellate court, when the judgment is reversed, not to remand tha TRIAL BY THE COLIil. 453. Case submitted to judge to be decided during the term. A cause that has been submitted for trial to the judge, on the law and facts, must be determined and judgment rendered therein dur- ing the term at which it has been submitted, and at least two days before the end of the term, if it has been tried and submitted one day before that time, unless it is continued after such submission for trial, by the consent of the parties, placed on the record ; and in such event, a statement of facts and bills of exception must be prepared and filed upon a request, in writing, by either party. 1 case, but to pronounce such judgment as should have been rendered in the court below, provided it is apparent from the record that the proper judgment can be rendered. But when it is apparent from the record that the proper judgment cannot be rendered, the case will be remanded to the trial court for further proceedings. Monroe v. Buchanan, 27 T. 241. As to when a case must be remanded, see R S. 1027. 1 Rule 6C. See JUDGMENTS, 623. CHAPTER XXYL OF THE RIGHT OF TRIAL BY JURY. 454. Right of trial by jury. 455. Jury trial in default cases. 456. Trial by jury in probate mat- ters. 457. Jury must be demanded and fee paid. 458. Time of demand for jury; call of dockets. 459. Deposit of jury fee; affidavit of inability. 460. Entry of suit on jury docket. 461. Jury trial day to be fixed by order, 462. Withdrawal of application for jury. 463. Challenge to the array. 454. Right of trial by jury. The constitution provides that the right of trial by jury shall re- main inviolate, and that the legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and effi- ciency. 1 In proceedings to remove county and district officers, the truth of the causes set forth must be found by a jury. 3 The constitution of 1866 preserved the right of trial by jury, where the matter in controversy, whether at law or in equity, ex- ceeded twenty dollars. 3 The right was preserved by the constitu- tion of 1869 when the amount in controversy was valued at or ex- ceeded ten dollars, except in cases in which the defendant failed to answer within the time prescribed by law, and the cause of action was liquidated and proved by an instrument in writing. 4 The constitution of the republic provided that the right of trial by jury should remain inviolate, and remedies were guarantied to every man by due course of law. 8 With this provision in force, the common law of England was adopted, so far as it was not incon- sistent with the constitution or acts of congress, subject, however, to the reserved right of alteration and repeal by congress. 6 After- wards the constitution of 1845 was adopted, and it was again de- clared that the right of trial by jury should remain inviolate. 7 There would seem to be some doubt, looking alone to the above 1 Const., art. I, 15; R. S. 3187. 2R. S. 3532. 3 Const. 1866, art. V, 20, 4 Const. 169, art, V, 16. 5 Declaration of Rights, Ninth and Eleventh. 6 P. D. 978. 7 Const 1845, art. I, 12, 455.] EIGHT OF TRIAL BY JURY. 429 provisions, as to what specific right is preserved by the constitution of H45, and subsequent ones whether it is the right of trial by jury as recognized in practice prior to the adoption of the common law, or the common-law right simply, If the common law is to be the rule of decision, then, a party may demand a jury under the present constitution in all cases without reference to the amount in controversy as prescribed by the constitution of 1869, although it is held in some cases that the right recognized by a constitutional provision is the right as known and practiced at the time the pro- vision is adopted. 1 It seems, however, that the common-law rules are generally referred to by the courts of this state. 2 455. Jury trial in default cases. "Where a judgment by default is rendered against the defendant or all of several defendants, if the cause of action is liquidated and proved by an instrument in writing, the damages are assessed by the court or under its direction, and judgment final is rendered therefor, unless the defendant demand and be entitled to a trial by jury. If the cause of action is unliquidated or be not proved by an instrument in writing, the court must hear evidence as to the dam- ages and render judgment therefor, unless the defendant shall de- mand and be entitled to a trial by jury. If the defendant demand and be entitled to a trial by jury, the judgment by default must be noted and a writ of inquiry awarded, and the cause must be entered on the jury docket. 3 It will be noticed that the defendant is given the right to a trial by jury whether the demand be liquidated or unliquidated, but that if he does not demand a jury the damages are to be assessed by the court, thus wholly denying any right in the plaintiff. This is held to be in contravention of the constitu- 1 Cockrill v. Cox, 65 T. 669; Myer on Vested Rights, 643, 2 Matthews v. State, 33 T, 117. See Mullally v. Ooggin, 25 S. W. Rep. 666. A party to a contestation arising upon an application for probate of a will, begun in the county court, but subsequently transferred to the district court because of the disqualification of the judge of the county court, was entitled, on request, in the district court to a trial by jury. Cockrill v. Cox, 65 T. 669: Gardner v. Spivey, 35 T. 508, Though a trial by jury be improperly denied, such denial will not require a reversal of the judgment if, upon the facts of the case, no other judgment could have been rendered. CaldweH County v. Harbert, 68 T. 821 (4 8. W. Rep. 607). A party filing a plea in abatement, setting up an issue of fact as to his place of residence, is entitled to a jury trial. Howeth v. Clark, 4 App, C. C., 815. Where a party demands a jury according to law and pays the fee, his absence when the case is called for trial cannot be construed as a waiver of a jury trial The trial may proceed without delay, but it must be by jury, according to the demand of the party. Lacroix v. Evans, 1 App. C, C., $ 749. Where neither party demands a jury, it is competent for the court to try and determine a suit for damages, Burnett v. Gunter, 1 App. C. C., 664, 3R. S. 1284-1286. 430 EIGHT OP TRIAL BY JUKY. [ 456, 457. tional guaranty. 1 Under article 1508, Paschal's Digest, if the cause of action was liquidated and proved by any instrument of writing, the clerk, unless a jury was asked for by either party, assessed the damages, but if the cause of action was unliquidated, a jury was re- quired. The early cases are therefore to be read with reference to this law. When judgment by default is rendered, the defendant is not en- titled to have the damages claimed in the petition assessed by a jury, if he has failed in proper time and manner to demand a jury and to deposit the proper fee. 2 In a suit upon a promissory note upon which unliquidated cred- its are indorsed, it is error to render judgment by default without a jury. 3 Where there is no issue joined, and the facts are admitted by the defendant, it is not error to render judgment without, a jury. 4 456. Trial by jury in probate matters. There shall be no trial by jury in probate matters, except when expressly provided by law. 8 It is held that this provision of law is not objectionable in its application to the proceeding in the first in- stance in the county court, so long as the right of appeal to the dis- trict court and a jury trial on appeal are secured ; and where a contest originating in the probate of a will was transferred to the district court on account of the disqualification of "the judge of the county court, a party was entitled to a jury if demanded. 6 457. Jury must be demanded and fee paid. In the trial of all causes in the district courts, the plaintiff or de- fendant, upon application made in open court, has the right of trial by jury; but no jury is impaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demand- ing the jury, for such sum and with such exceptions as may be pre- scribed by the legislature. 7 No jury will be impaneled to try a civil case in the county court unless demanded by one of the parties, who must pay such jury fee therefor, in advance, as may be prescribed by law, unless he makes affidavit that he is unable to pay the same. 8 No jury trial can be had in any civil suit unless an application therefor be made in open court and a jury fee be deposited, or an affidavit be made of inability to make such deposit as provided by law. 9 I Cent. & Mont Ry. Co. v. Morris, 68 T. 49 (3 S. W. Rep. 457). 2 Bumpass v. Morrison, 70 T. 756 (8 S. W. Rep. 596); Johnson v. Bowling, 1 App. G G, 1090. Mills v. Stuhl,37T. 312. < Hammond v. Mays, 45 T. 486. 6 R. S. 1855. Cockrill v. Cox, 65 T. 669. Cases are not now transferred. R. S. 1131. 7 Const., art. V, 10. 8 Const., art, V, 17. (J R. S. 3188. RIGHT OF TRIAL BY JURY. 431 A party N entitled to a jury on the trial of a case after an appeal and reversal, if properly demanded, although he waived a jury on the first trial. 1 The rule is that a jury may be demanded on the day the case is set for trial, although a jury may have been waived at a preceding term.-' ?:' 458. Time of demand for jury; call of dockets. Any party to a civil suit in the district or county court desiring to have the same tried by jury must make application therefor in open court on the first day of the term of the court at which the suit is to be tried, unless the same be an appearance case, in which event the application must be made on default day. On the first day of each term of the court, the court calls over the docket, except appearance cases, and notes thereon in each case whether or not a jury trial is applied for therein, and by which party. On the call of the appearance docket at each term of the court, the court in like manner notes in each appearance case whether or not a jury trial is applied for, and by whom.' The second day of each term of the district or county court is termed appearance day. It is the duty of the court on appearance day of each term, or as soon thereafter as may be practicable, to call in their order all the cases on the docket which are returnable to such term; judgments by default may be noted on the call of the docket. 4 It seems that the provision of the statute as to the time of mak- ing application for a jury is not mandatory; or rather that the courts will not so construe the law as unreasonably to interfere with the constitutional right of trial by jury. If a party fails to demand a jury at the time specified by statute, the result of the cases seems to be that he may still have a trial by jury, if the de- Dunlap v. Brooks, 3 App. C. C., 358. 2 Brown v. Chenoworth, 51 T. 469; Dean v. Sweeney, 51 T. 242. Where parties set the case for trial for a day when, by the orders of the court, no jury will be in attendance, the absence of a jury will not be a reason for the continuance of the case. Litigants are chargeable with knowledge of the standing orders of the court Cole v. Terrell, 71 T. 549 (9 S. W. Rep. 668). Where the record on appeal does not show any action taken on demand for a jury, but on the other hand does show a waiver of a jury, and that no jury fee was paid or that the case was put on the jury docket, the action of the trial court in excusing some of the regular jury cannot be reviewed on appeal Doll v. Mundine, 7 Civ. App. 96 (36 SL W. Rep. 87). Where judgment by default is rendered without a jury, the defendant on appeal cannot urge that he was de- nied a jury trial when the only knowledge of defendant's desire for a jury on the part of the trial judge arises from a record recital of a jury had by the par- ties on a former trial of the cause before another judge. Ellis v. Bonner, 7 Civ. App. 539 (27 S. W. Rep. 687). It is the duty of the court to hear the evidence and determine the facts where n 'ither party demands a jury. Brooks v. Pegg, 8 S. W. Rep. 595. R. a 3189, 3192, 3193. * R. S. 1280-1282. 432 EIGHT OF TRIAL BY JURY. [ 458. mand be made at a time when a jury is in attendance, provided his delay in the matter has not been detrimental to the interests of his adversary. The fact that a jury has been waived or demanded at one term will not prevent a party's waiving or demanding a jury at a subsequent term. The cases, however, are not uniform. In a late case 1 the following language is found: "It is not held that a party is not at fault who has failed to make his demand on the day prescribed by the statute; but that in view of the importance of the right to a jury trial, the privilege will not be denied him al- though he has been dilatory, in case the opposite party is not deprived of any right." Again: "In deciding questions of this character it has been the leading and proper purpose of our courts to give such construction to the articles of the code regulating jury trials in civil causes as would secure to parties not unreasonably delinquent in complying with the law that character of trial. A failure to demand a jury and pay the fee on the day required by the statute, it has been held, was not of itself sufficient to defeat the right. But it will be generally found in the cases where this question was decided, that a jury was in attendance upon the court, and that no injury resulting from delay would probably be done the other party." 2 The failure of a party to demand a jury when the cause is called oti appearance day will not preclude him from the right to have a jury if demanded in time at a subsequent term, on compliance with the terms of the statute. 3 1 Petri v. Lincoln Nat. Bank, 84 T. 153 (19 S. W. Rep. 379). 2 Petri v. First Nat. Bank, 83 T. 424 (18 S. W. Rep. 752). 3 Noel v. Denman, 76 T. 306 (13 S. W. Rep. 318); Cushman v. Flanagan, 50 T. 389; Dean v. Sweeney, 51 T. 242; Brown v. Chenoworth, 51 T. 469. It has been held that, if a party to a civil suit fails to demand a jury on the first day during the term on which the docket is called for the purpose of granting applications for juries, he cannot, as a matter of right, afterwards demand that his case shall be tried by a jury (McFaddin v. Preston, 54 T. 403); also that an applica- tion for a jury in an appearance case, and a deposit of the fee, made when the case is called for trial, may be refused (Fields v. Crescent Ins. Co., 3 App. C. C., 125); also that Revised Statutes, article 3189, provides for application for a jury to be made on the first day of a term, unless in appearance cases, when it is to be made on "default day," and that under that article, in connection with Revised Statutes, articles 1280, 1281 and 1282, "default day "and "appearance day " have the same meaning, and an application on the fourth day of the term is too late. Cruger v. McCracken, 26 S. W. Rep. 282. There was no error in the refusal of the court to grant the defendant's de- mand for a jury after the jury docket had been disposed of for the term and the regular panel discharged. Denton L. Co. v. First Nat. Bank, 18 S. W. Rep. 962. It is a sufficient excuse for not demanding a jury on the first day of the term that there was at that time no judge competent to receive the demand and enter the order. Hays v. Hays, 66 T. 606 (1 S. W. Rep. 895). It was error for the court, on appearance day, and after defendants' applica- tion for a continuance had been overruled, to refuse their demand for a jury on the ground that they had waived their right thereto by such application for '!>.] IiI<,HT OF TRIAL BY JTKY. 433 It is the duty of the court to give a liberal construction to the statute, so as to permit parties to exercise the right of trial by jury, where it can be done without delay or prejudice to the opposite party; but it is held that the courts have gone as far in this direc- tion as seems reasonable and just. After the jury service for the term is ended and the jury has been discharged, it is proper to re- fuse a demand for a jury. 1 459. Deposit of jury fee; affidavit of inability. The party applying for a jury trial in the district or county court must on the same day deposit with the clerk, to the use of the county, a jury fee of $5, if in the district court, and of $3, if in the county court. The deposit is not required when the party, within the time limited for making such deposit, files with the clerk an affidavit in writing signed by him, to the effect that he is unable to make such deposit, and that he cannot, by the pledge of property or otherwise, obtain the money necessary for that purpose. 2 A discretion may be exercised by the trial judge in allowing the deposit of the jury fee by the party who in time has applied for a jury, but who has failed to make the jury fee deposit, provided the same be made before trial, and when the exercise of such dis- cretion works no injury to the complaining party. The statute is not mandatory ; 3 whenever the failure to make the required pay- ment is delayed for such time as to materially affect the rights of continuance and by failing to demand a jury at the call of the appearance docket for orders a few hours earlier; it not appearing that any jury was in at- tendance at such call of the docket, and had been discharged because of failure to then demand a jury. Cook v. Cook, 5 Civ. App. 30 (23 S. W. Rep. 927). Suit on protested draft filed May, 1890. Defendants filed original answer June, 1890. and amended answer October, 1890. On March 2, 1891, defendants applied for a jury, tendering the jury fee. This was after the jury docket had been disposed of, and four days before the cause was tried, and it was held that tin- trial court properly refused to place the case upon the jury docket. Petri T. Bank, 83 T. 424 (18 S. W. Rep. 752). Suit was brought May 9, 1890. Answer was filed September 27, 1890. Jury was demanded by defendants April 24, 1891. It had been ordered by the court that no jury cases would be tried during the term. The trial docket had been apportioned, and on the day of the apportionment for this case the defendants made application for a jury. In such condition, as the demand if acceded to would have continued the case, it cannot be held that the plaintiff would not have been prejudiced by aUowing a jury; its refusal, therefore, was not error nor ground for reversal of judgment rendered at the term. Petri v. Bank, 84 : (19 S. W. Rep. 379). i Barton v. American Nat Bank, 8 Civ. App. 223 (29 S. W. Rep. 200). 2R. S. 3194,3195. 3 Hardin v. Blackshear, 60 T. 132; Gallagher v. Goldfrank, 63 T. 473; Allen v. Plummer, 71 T. 546 (9 S. W. Rep. 672). Where a defendant had made a demand for a jury in proper time, but failed to deposit the fee until after the jury docket was disposed of, a jury was properly refused. Wood v. Kieschbaum, 31 S. W. .Rep. 326. 28 434: EIGHT OF TRIAL BY JURY. [ 460, 461., the parties or to interfere with the orderly conduct of the business of the court, a jury trial ought to be refused. 1 If the party demanding a jury be unable to pay the fee, he must accompany the application with an affidavit to that effect. 2 On objection that a jury was improperly allowed because the fee was not paid, there being nothing in the record to the contrary, it will be presumed that the affidavit of inability was made. 3 460. Entry of suit on jury docket. "When a jury has been properly demanded, pursuant to the fore- going provisions, the court will order the clerk to enter the suit on the jury docket. It is the duty of the clerks of the district and county courts each to keep a docket, to be styled "the jury docket," in which shall be entered in their order the cases in which jury trials have been ordered by the court. 4 Default cases in which a. jury trial is to be had must be entered upon the jury docket. 5 461. Jury trial day to be fixed by order. The court, by an order entered on the minutes, may designate any day during the term for the taking up of the jury docket, and 1 Cabell v. Hamilton Brown Shoe Co., 81 T. 104 (16 S. W. Rep. 811). A jury was demanded on the first day of the term, and the jury fee paid on the second day, and it was held that as no injury would have resulted to the opposing party, and neither the business of the court nor the trial of the cause would have been delayed, the jury fee should have been accepted and the jury allowed. Gallagher v. Goldfrank, 63 T. 473. Defendants demanded a jury and had the cause placed on the jury docket. No jury fee was deposited by or on the first day of the term, and on motion of plaintiffs the cause was stricken from the jury docket, although the jury fee was deposited before the motion was filed. The cause was called in its regular order, and plaintiffs objected to its trial on the ground that all the jury cases had not been disposed of. It was held: (1) That the case should not have been stricken from the jury docket (following Gallagher v. Goldfrank, 63 T. 473). (2) Plaintiffs could not be heard to complain that they were not permitted to reap a further advantage than the erroneous ruling of the court had already given them. Allyn v. Willis, 65 T. 65. A party demanded a jury on the first day of the term, paid the fee on the sec- ond day, and the case was called on the third day; the jury cases on the civil docket were set for the second week of the term, and it was held error to disre- gard the demand for a jury and proceed to try the cause. Allen v. Plummer, 71 T. 546 (9 S. W. Rep. 672). Answer was filed March 9, 1888, and a jury de- manded, but the jury fee was not paid until April 12, which was after the time allotted for the trial of jury cases had passed, and when the cause was called on the non-jury docket the defendant asked that it be placed on the jury docket. This the court refused. As early as March 27 the counsel for defendant had been informed by the court that no cause would be placed on the jury docket before payment of the jury fee. The refusal of a jury was held no ground for reversal Cabell v. Hamilton Brown Shoe Co., 81 T. 104 (16 S. W. Rep. 811). 2 Fields v. Crescent Ins. Co., 3 App. C. C., 125. See Berry v. T. & N. O. Ry, Co., 60 T. 654. 8 Keeper v. Irons, 3 App. C. C., 180. 4 R.S. 3197, 319& 6R.S.1286. 462, 463.] EIGHT OF TRIAL BY JURY. 435 the trial of causes thereon ; and such order may be revoked or changed at discretion. 1 By another provision of the statute the order so made shall stand for all subsequent terms, until changed by a like order; and the change, when made, shall not take effect until the succeeding term. Jurors are to be summoned to appear on the day fixed for the trial of jury causes. 2 462. Withdrawal of application for jury. When one party has applied for a jury trial, as above provided, he will not be permitted to withdraw such application without the consent of the parties adversely interested. When a party who has applied for a jury trial has been permitted to withdraw such appli- cation, the court may, in its discretion, by an order permit him to withdraw also his jury fee deposit. 1 A demand of a jury by one party inures to the benefit of his ad- versary, and the latter is entitled to have the case tried by a jury; and the withdrawal of the case from the jury docket without his consent is error. 4 463. Challenge to the array. Any party to a suit which is to be tried by a jury may, before the jury is drawn, challenge the array of jurors upon making it to appear that the officer summoning the jury has acted corruptly, and has wil- fully summoned jurors known to be prejudiced against the party chal- lenging, or biased in favor of the adverse party. No challenge to the array will be entertained where the jurors have been selected by jury commissioners under the provisions of the statute. All challenges to the array must be in writing, setting forth distinctly the grounds of such challenge, and must be supported by the affidavit of the party, or some other credible person. When a challenge to the array is made, the court must hear evidence and decide without delay whether the challenge shall be sustained or not. If the challenge be sustained, the array of jurors summoned shall be discharged, and the court shall order other jurors to be summoned in their stead, and shall direct that the officer who summoned the persons so discharged, and on account of whose misconduct the challenge has been sustained, shall not summon any other jurors in the case. 5 Only the statutory causes can be urged to support a challenge to the array. 6 An objection that a juror was not summoned by a sworn officer comes too late after verdict. 7 1 R. S. 3199. 2 R a 1289. R. S. 3200, 3201. 4 Jones v. Hamby, 29 a W. Rep. 75. R S. 3202-3206. Roundtree v. Gilroy, 57 T. 176 ; G. f H .& a A. Rj. Co. v. Jessee, 2 App. C. C., 406. 7 Newman v. Dodson, 61 T. 91. CHAPTER XXVII. DRAWING AND IMPANELING THE JURY. 464. Drawing a jury. 465. Challenge for cause; procedure. 466. Peremptory challenges, when made; procedure; calling the 467. Peremptory challenges defined; number of; when made. 468. Grounds of challenge. 469. Challenges to be decided promptly. 470. Swearing the jury. 471. Number required to compose a jury. 472. Number required to render a verdict. 464. Drawing a jury. The clerks of the district and county courts are required to pro- vide and keep a box with a sliding lid, to be used in drawing a jury. "When the parties to a civil cause which is to be tried by a jury announce themselves ready for trial, and no challenge to the array is made, the clerk writes the names of all the regular panel for the week on separate slips of paper, as near the same size and appear- ance as may be, and places such slips in the box and mixes them well. He then draws from the box, in the presence of the court, the names, one by one, of twenty-four jurors, if in the district court, or so many as there may be, if there be a less number in the box ; and the names of twelve jurors, if in the county court, or so many as there may be, if there be a less number in the box, and writes the names as they are drawn upon several slips of paper and delivers one slip to each of the parties to the suit or their attorneys. When there are not so many names drawn from the box as twelve, if in the district court, or six, if in the county court, the court will direct the sheriff to summon such number of qualified persons as it may deem necessary to complete the panel, and the names of the persons so summoned must be placed in the box and drawn and entered upon slips as provided above. 1 The court should require the clerk to draw the jury after the parties have announced themselves ready for trial ; and a party is not required to state his objections to a list made up before the an- nouncement of ready. It is not held to be reversible error, how- ever, to overrule objections to a list so made up. 2 i R. S. 3216-3219. *G., C. and S. F. Ry. Co. v. Keith, 74 T. 287 (11 S. W. Rep. 1117). 465, 466.] DRAWING AND IMPANELING THE JUBT. 437 i; 465. Challenge for causo; procedure. When as many as twelve or more jurors, if in the district court, or six or more, if in the county court, are drawn, and the slips con- taining their names are delivered to the parties, if either party de- sires to challenge any juror for cause, such challenge must then be made. If the number of jurors be reduced by challenge for cause to less than twelve in the district court, or six in the county court, the court must order other jurors to be drawn or summoned, as the case may be, and entered upon the slips in place of those who have been set aside for cause. 1 It is contemplated by the statutes that the challenge of jurors for cause should be made after their names are drawn by the clerk and the jury lists delivered to the parties, but this may be waived by counsel. If, before the delivery of the list, an exception be taken to the questions propounded to test the qualification of a juror, it cannot be objected on appeal that the examination was conducted at an improper time, when no such objection was urged before. The appellate court will not consider, on exceptions, whether a juror whom the appellant was compelled to challenge peremptorily was disqualified under the statute and should have been excused from sitting for cause, when the record fails to reveal that the ap- pellant had exhausted his challenges before the jury was complete. 2 466. Peremptory challenges, when made; procedure; calling the jury. When a juror has been challenged and set aside for cause his name must be erased from the slips furnished the parties, and if there be remaining on such slips not subject to challenge for cause, twelve names, if in the district court, or six names, if in the county court, the parties shall proceed to make their peremptory challenges, if they desire to make any. When the parties have made their peremptory challenges, or when they decline to make any, they shall deliver their slips to the clerk, and the clerk shall, if the case be in the district court, call off the first twelve names on the slips that have not been erased, and if in the county court, the first six names, and these shall constitute the jury to try the case. When by peremptory challenges the jury is left incomplete, the court will direct such number of other jurors to be drawn or summoned, as the case may be, as he may consider sufficient to complete the jury, and the same proceedings must be had in selecting and impaneling 1 R. S. S220. 8221. The names of the jurors must be drawn after the parties announce ready for trial, and on the delivery of a list to each of the parties the challenges for cause are made. G., C. & S. F. Ry. Co. v. Keith, 74 T. 287 (11 S. W. Rep. 1117). *H. & T. C. Ry. Co. v. Terrell, 69 T. 650 (7 S. W. Re \ 670): Smith v. Bates, 27 S. W. Rep. 1044 438 DRAWING AND IMPANELING THE JUEY. [ 467. such jurors as are had in the first instance. 1 It is held that the ob- ject of the statute was, as far as practicable, to secure the formation of a jury from the names selected by the jury commissioners, and to prevent delay in the formation of a jury. If, when a jury is to be impaneled, as many as twelve names remain of the panel for the week, no talesmen should be summoned until such challenges for cause as are desired have been made. If, after challenges for cause, as many as twelve men remain in the jury box, both parties must then proceed to make their peremptory challenges. When- ever the number is less than twelve, either when first drawn or after challenges for cause, or after peremptory challenges, then, and not before, the court may order others to b3 summoned by the sheriff. 2 A party not having exhausted his challenges when talesmen are summoned, has the right to challenge upon being presented with the list of such talesmen. It was error to refuse a party, having exercised his right to challenge only to five jurors, the right to challenge another when talesmen were called to complete the jury. 3 467. Peremptory challenges denned; number of; when made. A peremptory challenge is made to a juror without assigning any reason therefor. Each party to a civil suit in the district court is entitled to six peremptory challenges. Each party to a civil suit in the county court is entitled to three peremptory challenges. 4 Peremptory challenges may be made orally, after challenges for cause are made. 5 Where the interests of two defendants are so nearly identical as to make them but one party to a suit, in the sense in which that term is used in the jury law, but six jurors can be challenged by the defendants. 6 When the issues to be tried be- tween the plaintiffs and the defendants are the same, then there are but two parties to the action, each entitled to six challenges. This general rule is not affected by the fact that the extent of liability 1 R. S. 3222-3224. 2 G., C. & S. F. Ry. Co. v. Greenlee, 70 T. 553 (8 S. W. Rep. 129). Where a party is entitled to a jury selected by commissioners, it is error to compel him to try the case before a jury selected from a venire summoned by order of court. Smith v. Bates, 27 S. W. Rep. 1044. 3 Mitchell v. Mitchell, 80 T. 101 (15 S. W. Rep. 705). The defendant is not en- titled to have the list of the jurors remaining after the striking by plaintiff called before he passes upon the jury. Texas Mut. L. Ins. Co. v. Brown, 2 U. C. 160. Where on appeal it is not shown that an objectionable juror remained upon the jury, the question whether appellant was denied his legal number of per- emptory challenges will not be considered. Snow v. Starr, 75 T. 411 (12 S. W. Rep. 673). 4 R S. 3211-3213. *R.S. 3214. Jones v. Ford, 60 T. 127. S.] DRAWING AND IMPANELING THE JCRY. 439 of one of several defendants is different from that of the others where the liability of each depends upon the same facts. 1 When there is more than one defendant, and the liability of each depends upon the same fact, they will be considered as only one ] tarty. But where there is no identity of interest between them, and the issues are not the same between them and plaintiff, or if the defendants claim adversely to each other, and their interests would :l'ected by the finding of the jury, then each defendant is en- titled to six peremptory challenges. 3 A plaintiff and an intervener who are making a common fight against a garnishee constitute one party, and are entitled to six peremptory challenges only. The proper practice in such a case is to apportion the challenges, espe- cially if the parties disagree as to the jurors to be challenged. It was held not error to refuse a separate list to the intervener. 3 The clerk draws the jury and delivers the lists to the parties, and challenges for cause are then heard and decided. Peremptory chal- lenges are then made, by simply striking the name of any objec- tionable juror from the list. A challenge for cause must be made known to the court; a peremptory challenge is a privilege the cause of which the parties may wish should not be known, and the court cannot compel them to make it known at any stage of the proceed- ing or for any purpose. 4 468. Grounds of challenge. A challenge for cause is an objection made to a particular juror, allt'iring some fact which, under the provisions of the statute, dis- qualifies him to serve as a juror in any case, or in the particular <:ase, or which, in the opinion of the court, renders him an unfit person to sit on the jury. Upon a challenge for cause the examina- tion is not confined to the answers of the juror, but other evidence may be heard in support of or against the challenge. In examining 1 Hargrave v. Vaughn, 82 T. 347 (18 S. W. Rep. 695). Three defendants were sued for false, imprisonment; one pleaded in abatement, denying any participa- tion in the acts of the others within the county where the suit was brought. The defendants insisted on the right to challenge six jurors by the defendant pleading in abatement, and six by the others, and it was held that the court was not in error in limiting the challenges by all the defendants to six. After de- fcii'lants had exhausted their challenges two talesmen were called. It was not shown that defendants desired to challenge either of them; no injury, therefore, was shown by the restriction of the number of challenges. Wolf v. Ferryman, -J T. 112(178. W. Rep. 77:2 1. In an action to foreclose a landlord's lien, the tenant and divers persons to whom he had given separate mortgages on the property to be subjected to the lien constitute but one party in respect to the number of jury challenges, Allen v. Waddill, 26 S. W. Rep. 273. 2 Rogers v. Armstrong, 30 S. W. Rep. 84& 3 Kelly-Goodfellow Shoe Co. v. Liberty Ins. Co., 38 S. W. Rep. 1027. t sworn is no ground of error, unless it be made to appear that the party complaining did not know such fact at the time of the trial.- 471. Number required to compose a jury. A jury in the district court is composed of twelve men ; 3 but tin- parties may agree, in a particular case, to try with a less num- ber. 4 A jury in the county court consists of six men. 5 472. Number required to render a verdict. The constitution provides that nine members of the jury, con- curring, may render a verdict in the district court, and that when the verdict is rendered by a less number than the whole, it shall be signed by every member of the jury concurring in it; but power is given to the legislature to change or modify this provision. 6 The* legislature has provided that no verdict shall be rendered in any cause except upon the concurrence of all the members of the jury trying the same. 7 Where, pending the trial of any case in the district court, one- or more of the jurors, not exceeding three, may die or be disabled from sitting, the remainder of the jury may render the verdict; but in such case the verdict must be signed by every remaining mem- ber of the jury. 8 By another provision of the statute the jury must be discharged when by sickness or other cause their number is re- duced below the number required to constitute a jury. 9 By mental distress of a juror, occasioned by sickness in his fam- ily or of others demanding his presence at home or elsewhere, he is not " disabled from sitting," so as to empower the remainder of the jury to render the verdict over the objections of either party. 10 Freiberg v. Lowe, 61 T. 436; Clark v. Davis, 7 T. 556. 2 Powell v. Haley, 28 T. 53. 'Const, art V, 13; R S. 3228. R S. 3228. 8 Const, art, V, 17; R S. 3230. Where the transcript recites, "a jury came of good and lawful men, R G. Childress and eleven others," the objection that the record does not show that a jury of twelve men were impaneled to try the cause is frivolous. Sears v. Green*, 1 U. C. 727, citing Clark v. Davis, 7 T. 560^ Johnson v. Smith, 14 T. 412. 6 Const, art V, 13. This provision took immediate effect and until the en- actment of the present law (act August 1, 1876), which restored the old rule, a. verdict was valid in which nine jurors concurred. Bowen v. Davis, 48 T. 101. ?R S. 3231. 8R S. 1323, 3229; Const, art V, 13. R S. 1312. 10 H. & T. C. Ry. Co. v. Waller, 56 T. 331. It is held that mere mental distress is not the character of disability which the constitution classes side by side with death. " If a juror^ becomes so sick as to be unable to sit longer, he is- 44:2 DRAWING AND IMPANELING THE JUKY. [ 472. "When a juror is excused from service by counsel for both parties after the trial has begun, and a verdict is rendered by the remain- ing eleven, it is not necessary that all should sign it. 1 In an action in the county court the record showed that the parties agreed to try the cause with five jurors, and it was held that the signature of the foreman to the verdict was sufficient. 2 plainly disabled from sitting (citing Ray v. State, 4 App. 454) ; if by reason of some casualty or otherwise he is physically prostrated, so as to be wholly incapable of sitting as a juror, or loses his mental powers, so as to become insane or idiotic, then, too, he would be disabled from acting as a juror." But without deeming it proper to attempt to define fully the meaning of the expression used in the constitution, the court holds that the causes which disable a juror from sitting, and justify the extreme course of allowing, over a party's objection, a verdict to be rendered by the remainder of the jury, must be of a nature more immedi- ately showing his physical or mental incapacity than mere mental distress oc- casioned by sickness of others, and the feeling that duty to the sick demanded his presence elsewhere. Extreme cases of the kind, however strongly they may appeal to the court to release the juror, do not belong to the class provided for by the constitution or statute. 1 Tram Lumber Co. v. Hancock, 70 T. 312 (7 S. W. Rep. 724). 2 Bluefields Banana Co. v. Wolfe, 22 S. W. Rep. 269. CHAPTER XXYIII. OPENING THE CASE. 473. Order of proceedings on trial by jury. 474. Right to open and close. 475. Right to open and close in pro- ceedings to condemn land. 476. Admission to secure right to open and close. p 473. Order of proceedings on trial by jury. The statute provides as follows: In suits tried by a jury the trial shall proceed in the following order, unless the court should for good cause, to be stated in the record, otherwise direct : 1. The plaintiff or his counsel shall read his petition to the jury. 2. The defendant or his counsel shall read his answer. 3. If there be any intervener, he or his counsel shall read his pleadings. 4. The party, plaintiff or defendant, upon whom rests the burden of proof on the whole case under the pleadings, shall then be per- mitted to state to the jury briefly the nature of his claim or defense and facts relied on in support thereof. 5. Such party shall then introduce his evidence. 6. The adverse party shall then be permitted to state briefly the nature of his defense or claim and the facts relied on in support thereof. 7. He shall then introduce his evidence. 8. The intervener, if any, shall in like manner be permitted to make his statement, and shall then introduce his evidence. 9. The parties shall then be confined to rebutting testimony on each side. 1 ?' 474. Bight to open and close. The plaintiff has the right to open and conclude, both in adduc- ing his evidence and in the argument, unless the burden of proof on the whole case under the pleadings rests upon the defendant, or un- less the defendant, or all of the defendants if there should be more 1 R. S. 1297. Where pleas have been filed among the papers in a cause, the mere failure to state or read them formally to the jury at the opening of the trial should not deprive the party of the right to prove his defenses. Allen v. Hogan, 4 App. C. C., 9& Reading to the jury a portion of the pleadings to which exceptions have been sustained is a practice not to be commended. Smith v. Savings Bank, 1 Civ. App. 115 (20 S. W. Rep. 1119). 44A: OPENING THE CASE. [ 475. than one, shall, after the issues of fact are settled and before the- trial commences, admit that the plaintiff has a good cause of action as set forth in the petition, except so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good de- fense, which may be established on the trial. This admission must be entered of record, and the defendant, or the defendants if more than one, then have the right to open and conclude in adducing the evidence and in the argument of the cause. 1 It is held that an error in denying to a party the privilege of opening and closing cannot be regarded as immaterial. 2 It is also- held, on the contrary, that such an error would not be ground for reversal, unless it is evident from the record that injustice resulted. 3 In a suit on a note by the payee against the maker, a plea of want of consideration, it is held, leaves the burden on the whole case with the plaintiff, and he is entitled to open and close. 4 Other cases hold that the production of the note makes a prirna facie case, and that a defendant who impeaches the consideration must sup- port his plea by proof. 5 475. Right to open and close in proceedings to condemn land. The rule in this state is that in proceedings by a railway com- pany to condemn land the company is the actor, and has the right to open and close, though this seems to be contrary to the weight of authority in other states. 6 The defendant may, on appeal, admit 1 Rule 31; R. S. 1297, 1299. 2 G., C. & S. F. Ry. Co. v. Abney, 3 App. C. C., 415. 3 McDonald v. Tex. & Pac. R. Co., 1 U. C. 191; Gaines v. Ann, 26 T. 340; Belt v. Raguet, 27 T. 471. < Franklin v. Smith, 1 U. C. 229; Solomon v. Huey, 1 U. C. 265, citing Delano v. Bartlett, 6 Cush, 367; Powers v. Russell, 13 Pick. 76; Small v. Clewley, 62 Me. (16 Am. Rep.) 412. &Tolbert v. McBride, 75 T. 95 (12 S. W. Rep. 752), citing Jones v. Holliday, 11 T. 413; McAlpin v. Finch, 18 T. 835; Watson v. Flanagan, 14 T. 353; Harris v. Cato, 26 T. 339; Knight v. Holloman, 6 T. 153. See, also, Hogue v. Williams, 22 S. W. Rep. 762; Caruthers v. Cherry, 4 App. C. C., 118. On a trial of the right to property which had not been taken into actual possession, it was not error to permit claimants to open and conclude the argument, although the plaintiff* had voluntarily assumed the burden of proof in the introduction of testimony. Marsh v. Thomason, 6 Civ. App. 379 (25 S. W. Rep. 43). It was held there was no error in this case in permitting an intervener to open and close the case. Johnston v. Luling Mfg. Co., 24 S. W. Rep. 996. The- burden is on an administrator to show the correctness of his account on final settlement, and he is entitled to open and close. Higgs v. Garrison, 27 S. W. Rep. 84. It is an established general rule of evidence that the burden of proof lies on the party who wishes to support his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be alone cogni- zant. The rule applies whether the fact be proved by affirmative or negative evidence. Hoerr v. Coffin, 1 App. C. C., 186. G., C. & S. F. Ry. Co. v. Abney, 3 App. C. C., 415; G., H. & W. Ry. Co. v. 47J.J OPENING THE C.\ 445 plaintiffs cause of action the right to condemn the land, ami thus become entitled to open and close the argument; 1 and where the proper admission is tiled, defendant will not lose his right t<> "|H?n and close the argument by permitting the company to in- troduce its evidence first. - ? 476. Admission to secure right to open and close. The admission must be made by all the defendants before the trial commences, and must be entered of record. 3 A verbal admis- sion, after the close of the evidence, will not give the defendant the ri.irht to open and conclude the argument. When the defendant, before the trial commences, admits specifically the plaintiff's cause of action, so as to relieve the plaintiff from adducing any proof, and causes this admission to be entered of record, then, and not till then, is he entitled to open and conclude the argument. 4 When the defendant admits that the plaintiff has a good cause of action as set forth in the petition, but replies by plea in the nature of a plea in confession and avoidance, he is entitled to open and conclude in adducing evidence and in the argument ; but in such the admission should specify the allegations admitted, and should not be in general terms. 5 The admission of the plaintiffs cause of action, contemplated in the rule, is such as that, if no evi- dence be introduced, the plaintiff must prevail to the extent of the allegations of his pleadings. An admission of the cause of action, except as to the value of the subject-matter, is not sufficient.' Where there is one affirmative fact important to a recovery by the plaintiff, which is not admitted by the defendant, the plaintiff has the right to open and conclude. 7 Waples, 3 App. C. C., 409; McDonald v. Tex. & Pac. R. Co., 1 U. C. 191; G., C. & S. F. Ry. Co. v. Ross, 4 App. C. C., 87. 1 Dallas, P. & S. Ry. Co. v. Day, 3 Civ. App. 353 (22 S. W. Rep. 538); G., H. nst nieil to mean devisees or legatees. 1 A person called by the opposite party may testify. 2 One having no interest in common with parties calling him as a witness, and who though nominally u party to the suit has no interest in the result, n potent to testify as to statements and admissions against his interest at the time they were made by a deceased person in pos- >n of property in litigation against those holding under him as s, etc. 3 The inhibition is applicable only to those who are punks to the suit, and does not render incompetent other per- \vho, though interested in the issue to be tried, are not par- ties; 4 and a remote \varrantorin the chain of title, who will not in any manner be bound by a judgment in trespass to try title, is not prohibited from testifying. 5 Where a warrantor has been made a party to the suit in such way as to render the judgment binding upon him in favor of his vendees, he is a party thereto within the meaning of the provision which prohibits parties from testifying inst the heirs or legal representatives of decedents. 6 The testimony prohibited by the statute has reference to trans- actions with or statements by the testator, etc. ; if a knowledge of the facts was derived by the witness in any other way, his testi- mony is not prohibited by the statute. 7 A ton v. Newton, 77 T. 503 (14 S. W. Rep. 157); Mitchell v. Mitchell, 80 T. 101 (15 S. W. Rep. 705); Curtis v. Wilson, 2 Civ. App. 646 (21 S. W. Rep. 787). \V lii-re the husband is incompetent by reason of interest to testify, the wife also will be where the suit affects the community interest of the husband and wife. Ne\\ -ton %. Newton, 77 T. 508 (14 S. W. Rep. 157). See, also, Simpson v. Hn.therton, 62 T. 170. -' Mitchell v. Mitchell, 80 T. 101 (15 a W. Rep. 705). Oury v. Saunders, 77 T. 278 (13 S. W. Rep. 1030); Mitchell v. Mitchell, 80 T. -> s. W. Rep. 705). Kiilder v. City of Brenham, 67 T. 345 (3S. W. Rep. 309). 5 Parker v. Cockrell, 31 S. W. Rep. 221. 6 Bennett v. Land & C. Co., 1 Civ. App. 321 (21 S. W. Rep. 126). The rule seems to be that mere nominal parties may testify (Britton v. Tischmaker, 31 S. W. Rep. 241); but it is held that a party who is improperly joined is incompetent. Bilger v. Buchanan, 6 S. W. Rep. 408. .ate v. Huff, 4 App. C. C., 281. A defendant may testify as to what he himself had done under and by virtue of a contract with the intestate. Potter v. Wheat, 53 T. 401. A party suing an executrix should not be permitted to . that lit- intrusted money to the deceased to be loaned; this would be evi- dence as to a transaction with deceased. Altgelt v. Brister, 57 T. 432. The evi- dence of a party to a suit, in effect that he did not know that the deceased an- cestor of the adverse party claimed an interest in the land involved in the suit, is admissible, it not appearing that the knowledge or want of knowledge de- pended on any statements of deceased. Mast v. Til>l>les. GO T. 301. One who, being party to a suit, claims title to land by deed from a deceased mother, in a suit where the plaintiff's title U a -,',i.Tiir's deed under execution sale to satisfy a judgment against the d -.-eased father, is not disqualified from testifying from his own knowledge that the title to the property which, before judgment, was 29 450 COMPETENCY OF WITNESSES. [ 479, A defendant who, in a suit for property brought by an admin- istrator, disclaims all interest, is a competent witness to acts and conversations of the decedent affecting the title. 1 An administra- tor is not a competent witness to establish the contract on which he sues by testifying to conversations between the deceased and the defendants. 2 conveyed to his father, was, in fact, paid for with the separate means of his mother. Harris v. Seinsheimer, 67 T. 356 (3 S. W. Rep. 307). In a suit against the administratrix to recover money alleged to have been collected for plaintiff by her intestate, and not paid over, the plaintiff will not be permitted to detail in evidence the transaction between himself and the in- testate, which it was claimed resulted in an agreement between them that the deceased should collect the money and apply it to the payment of a note in his hands for collection against the plaintiff. Heard v. Busby. 61 T. 13. In a suit against heirs to prove an instrument for record, plaintiff, for the purpose of proving delivery, will not be permitted to testify that he received the instru- ment through the postoffice, with a certain postmark on the envelope. This would be proving a transaction with a deceased person. Howard v. Zimpleman, 14 S. W. Rep. 59. In a suit by an administrator on a note payable to the deceased, a daughter of deceased, being in possession of the note, was made a defendant. She was pennitted to testify that the note was executed for borrowed money, and that the money loaned had been given to her by the deceased, and that the note was- delivered to her immediately upon its execution, and belonged to her. This was held not admissible. Turner v. Murchison, 31 S. W. Rep. 428. An heir interested in the title to land in controversy is not competent to tes- tify to the contents of a lost deed executed by a deceased ancestor to him ; but he is competent to testify as to his possession of the land and the payment of taxes. Britton v. Tischmaker, 31 S. W. Rep. 241. On a question of heirship, the witness testified positively that the deceased was his mother, and also that she had told him she was his mother, and always called him son; and it was held that whether the alleged statements of the de- ceased were admissible or not, the information derived by the witness from other sources was admissible. It is doubted whether the calling of a child son is a statement within the meaning of the law. Brown v. Mitchell, 31 S. W. Rep. 621. After a father's death his son was sued for land given him by his father by parol contract, followed by possession and valuable improvements. The defend- ant was held a competent witness to prove the transaction. He did not claim the land as heir or legal representative of his father. Wootters v. Hale, 83 T, 563 (19 S. W. Rep. 134). A party to the suit claiming under a parol gift from her deceased father is incompetent to prove the transaction through which she claims. She would also be incompetent to testify to the same transaction in behalf of her co-claimants under the same alleged gift. James v. James. 81 T, 373 (16 S. W. Rep. 1087). In an action against an executor by a plaintiff claim- ing money under a parol gift from the testator, it was held that the plaintilT could not testify in his own behalf to any statements by or transactions with the deceased touching said parol gift, or to any delivery of the money under it. Hubbard v. Cox, 76 T. 239 (13 S. W. Rep. 170). ^Eastham v. Roundtree, 56 T. 110. In a contest among persons not claiming to be heirs, t>ver the right to administer on an estate, a woman who has re- nounced her right as surviving wife is competent to testify as to her marriage- with the deceased. Ingersol v. McWillie, 30 S. W. Rep. 56. 2 Stringfellow v. Montgomery, 57 T. 349. A party to a suit against heirs, claim' BO. M'KTKNCY OF WITM-- Iii ;i suit by a surviving partner, defendant may tostify as to transactions with the deceased partner. A surviving 1 partner is not the legal representative of the deceased partner. 1 The inhibition does not extend to conversations with a surviving partner of the deceased, though the testimony might result in establishing a con- tract with the linn. When a deceased contracting party was rep- resented in consummating the bargain by an agent who is capable of testifying, then the other contracting party, unites expressly ex- cluded by statute, could be a witness. 2 The widow, suing as the representative of the community estate of herself and deceased hus- band, is the representative of the estate within the meaning of the statute, and the defendant is not competent to testify as to trans- actions Avith the deceased/' The statute does not apply to corporations. Evidence of trans- act ions with a deceased agent of a corporation is admissible. 4 ? 480. Religious belief. No person is incompetent to testify on account of his religious opinions, or for want of any religious belief, 5 but all oaths or affir- mations must be administered in the mode most binding upon the conscience, and are taken subject to the pains and penalties of per- jury." ing the property through their deceased ancestor, is precluded not only from testifying to statements made to him by the deceased, and to transactions be- t ween the deceased and himself, but also as to any such statements to or trans- actions between deceased and third persons; and this although occurring at a time when the witness had no interest in such statements or transactions. Park-, v. Caudle, 58 T. 210. > Campbell v. Wallace, 3 App. C. C., 434; Roberts v. Yarboro, 41 T. 449. -Bennett v. Frary, 55 T. 145. On the question of defendant's ownership of a note wliidi (inie into the hands of himself and partner, defendant offered to prove that at t lie dissolution of the partnership the note became his property, but was properly refused, his former partner being dead. Testimony that for twelve or eighteen months after the dissolution, and during the life of defend- ant's partner, while the note was in defendant's possession, he claimed it as his own property, was admissible. Lunipkin v. Montgomery, 25 S. W. Rep. 661. > Gurley v. Clarkson, 30 S. W. Rep. 360. 4 Kexar Hldg. A: L. Ass'n v. Newman. - J5 S. W. Rep. 462. A next friend of minor heirs suing for partition is incompetent to testify as to statements made by de- fendants' ancestor; he stands in the relation of guardian within the meaning of the statute. Nor can one of the defendants, when called by his co-defendants. testify as to statements made by the plaintiff's ancestor. Ellis v. Stewart. - J1 S. W.'Rep. 585. In a suit by the widow and children for damages against parties charged to- have unlawfully taken the life of the deceased husband and father, the defend- ants are competent witnesses. They are not within the exceptions of the stat- ute. Walla. -e v. Steven,-*, 74 T. 559 (12 S. W. Rep. 283). 4 Const., art. I, 5; R S. 2303. 6 Const, art. I, 5; R S. 3. CHAPTER XXX. STATUTORY RULES OF EVIDENCE. 481. In general. 482. Instrument on which suit or de- fense is founded. 483. Instrument executed by testa- tor or intestate. 484. Copy of instrument on file in another court. 485. Assignment, how put in issue. 486. Printed statute books. 487. Rate of interest in other states or countries. 488. Suit on sworn account. 489. Charters and records of corpora- tions. 490. Copies of public records in this state admissible in evidence. 491. Copies of judicial records. 492. Probate records. 493. Copies of wills, or of the probate or record thereof. 494. Copies and certificates from cer- tain state offices. 495. Certain transfers or deeds not to be withdrawn from land office. 496. Notarial acts and certificates. 497. Judicial records of other states. 498. Public records of other states, etc., how proved. 499. Comptroller's transcript in suits against officers. 500. Certified copies from heads of departments. 501. Assessment and payment of taxes, how proved. 502. Certified copies of chattel mort- 503. Proof of appointment of execu- tors, etc. 504. Partition proceedings and de- crees for recovery of title. 505. Recorded instruments admissi- ble. 506. Copy of recorded instrument ad- missible. 507. Affidavit of forgery cf recorded instrument. 508. Transcribed records of new coun- ties. 509. Translated copies of land office records. 510. Copies of instruments filed prior to 1837. 511. Certain titles not evidence, un- less, etc. 512. Records of certain titles con- firmed; shall be evidence, when. 513. Copies of records of county sur- veyors. 514. Archives of former governments. 515. Miscellaneous statutory provis- ions. 481. Tn general. The legislature is prohibited from passing any local or special law changing the rules of evidence in judicial proceedings. 1 The English common-law rules of evidence, as practiced and understood in 1836, are adopted in this state, so far as they may not be incon- sistent with the statutes of the state relating to evidence. 2 1 Const., art. III, 56. 2R.S.2299. STATUTORY RULES OF EVIDENCE. 453 Statutes changing the rules of evidence are to be classed with and treated like statutes affecting the remedy, and are valid if thev !<> not impair antecedent contracts or rights otherwise vested. 1 The doctrine is that there is no vested right in a rule of evidence. The ature may prescribe the number of witnesses which shall be necessary to establish a fact in court, and may again, at pleasure, repeal or modify such law; it may prescribe what shall and what shall not be evidence of a fact, whether it be in writing or oral, and whether it be in reference to contracts existing at the time, or pri'speetiveh ; it may give to an instrument a larger extent as evi- dence, or may withdraw from it all that it had by previous enact- ment ; and while a law that should make certain evidence conclush e which is not so necessarily in and of itself, would be void as indi- rectly working a confiscation of property, or a destruction of vested rights, it is within the power of the legislature to declare any cir- cumstances or any evidence, however slight, pi ///<'/ /;/-/, proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence. 2 In respect to evidences of title, it is said that rules of evidence may be changed; the instruments of title in a party's possession may be required to be recorded once or twice or several times; that barriers may and should be erected against fraud, perjury and forgery, but that these are designed for the protection of the public and of honest bona P'l> claimants. They cannot be used to assail and demolish the only safeguard the only vestige of title by which an individual is se- cured in his property without the substitution of some other mode of establishing his claim. Rules of evidence affect the remedy, the procedure, and the legislature may modify them at pleasure, pro- vided such changes come not within the constitutional inhibition against laws impairing the obligation of contracts, or which are re- trospective in their operation. 3 Constitutional restrictions for the protection of vested rights do not embrace legislation in respect to the competency of witne 482. Instrument on which suit or defense is founded. When any petition, answer or other pleading is founded, in whole or in part, on any instrument or note in writing, charged t<> have 1 Rich v. Flanders, 39 N. H. 304, Myer on Vested Rights, p. 77. 2 Hickox v. Tallman, 38 Barb. 608; Fales v. Wadsworth. 2:; M- . 568; Sanders v. Greenstreet, 2:5 Kan. 42.-i: Howard v. Moot, 64 N. V. 2i2; Myer on Vested Rights, p. 112, 380, 381. 3 Paschal v. Perez, 7 T. 348. And see Tex. Mex. Ry. Co. v. Locke. 74 T. 370, as to the validity of section 4 of article 13 of the constitution of 1876, declaring fi-tain larvl claims stale. 4 Rich v. Flanders. 39 X. H. 304; Westerman v. Westerman. 2.~ Ohio St 500; John v. Bridgman, 27 Ohio St. 22; Oliver v. Moore, 12 Hi i-k. iv.': Wilson v. Wil- son, SO Ind. 472. Consult, also. Myer on Vested Rights. ?? 4o7, 1000, 1202. STATUTORY RULES OF EVIDENCE. [ 482. been executed by the other party, or by his authority, and not al- >leged to be lost or destroyed, such instrument or note in writing xvill be received in evidence without proof of its execution, unless the party by whom or by whose authority such instrument or note in writing is charged to have been executed shall file his affidavit in writing, denying the execution thereof ; and this rule is applied in all suits against indorsers and sureties upon any instrument or note in writing. 1 When the instrument upon which suit is brought purports to have been executed by an attorney or agent, it is not necessary to prove either its execution by the attorney, or the au- thority of the attorney, unless the defendant shall have denied its execution under oath. 2 And where the suit is upon a note charged to have been executed by several, as partners, under a firm name, they will not be permitted to disprove the partnership, which im- plies the authority to execute the note, unless they deny it under 1 R. S. 2318. In order to bind a party to a written contract, it is not neces- sary that his signature should appear at the end of it. If he writes his name in any part of the agreement it may be taken as his signature, provided it was there written for the purpose of giving authenticity to the instrument, and thus operating as a signature. Fulshear v. Rawdon, 18 T. 275; Prince v. Thompson, 18 T. 480. A plea of non est factum, which admits the making of a note similar to that sued on, except as to seals attached to the signatures of the defendants, which the plea alleges were not contained in the note signed by the defendants, is a good plea. Muckleroy v. Bethany, 23 T. 163. But the signature being proved, the burden of proof is upon the defendant to show the alteration. Muckleroy v. Bethany, 27 T. 551. In an action on a sheriff's bond, if the execution thereof is not put in issue by the plea of non est factum, proof that the bond was properly taken and ap- proved is not necessary to establish its due execution and acceptance. Poer v. Brown, 24 T. 34. When a bond for title, which may by law be recorded, is made the foundation of the suit, it may be read in evidence without proof of execution, unless denied under oath, and the registration and notice required by statute is dispensed with. Geary v. Cummins, 28 T. 91. When the defendant's answer alleged the execution of a receipt by plaintiff, it was admitted in evidence without proof of its execution. May v. Pollard, 28 T. 677. Letters written by the defendant to the plaintiff, containing acknowl- edgments of indebtedness, may be made the foundation of a petition, and read in evidence without proof of execution. Close v. Judson, 34 T. 288. A receipt for stage fare is an instrument in writing within the meaning of the statute (Sawyer v. Dulany, 30 T. 479); and so is a wagoner's receipt. Lewis v. Lowery, 31 T. 663. 2 Austin v. Townes, 10 T. 24; Reid v. Reid, 11 T. 585; Kelly v. Kelly, 12 T. 452; Herndon v. Ennis, 18 T. 410; Sawyer v. Dulany, 30 T. 479. When proof of execu- tion is required, the authority of the agent and its execution must be shown. Brashear v. Martin, 25 T. 202. When the contract declared upon does not pur- port to be executed by the defendants or by their agent, and the plaintiff seeks to charge the defendants thereon, he must, under the issue formed by the gen- eral denial, prove the authority of the agent to bind the defendants by the con- tract in question. Compton v. Stage Company, 25 T. Sup. 67. But this case was overruled in Sessunis v. Henry, 38 T. 37. -] 'UY KL'LES OK KV1I.K.- 4>~>;> oatli in their pit -ailing. 1 The statute applies to an instrument which does not on its face purport to be the act of the party on whose liehalf it is alleged to have been executed. 2 It does not render an instrument evidence without proof against a vendee from the party it ing it of property affected thereby. 3 "\Vhere the suit is on a n< >tr and to foreclose a chattel mortgage, if no plea of non est factum is interposed the mortgage is admissible in evidence without proof of its r\ edition, and without the tiling and notice required in the case of recorded instruments. 4 A pica of non est factum not s*.vorn to requires, as does a general denial, the production of the instrument declared on, but dispenses with proof of its execution. The rule applies although no excep- tions were made to the plea on account of the defect. 5 When a defendant in a suit on a note, bond, or other instrument of writing alleged to have been executed by him, denies its execution under oath by averring a material alteration after the execution of the same without his consent, such qualified plea does not put in issue the signing of the instrument, nor throw the burden of disproving the alteration on the plaintiff, but it lies with the defendant to prove the alteration. 6 iDrew v. Harrison, 12 T. 279; Lea v. Hamilton, 12 T. 413. When the instru- ment, a wagoner's receipt, was signed by a single name, and the petition set it out and averred that it was executed as the partnership act of the said L. and one T., it was held that if T. would deny it he must do so under oath. Lewis v. Lowery, 31 T. 663. V. & A. P. Ry. Co. v. Harrison, 72 T. 478 (10 S. W. Rep. 556); City Water Works v. White, 61 T. 536; I. & G. N. Ry. Co. v. Tisdale, 74 T. 8 (11 S. W. Rep. flOO). Lignoski v. Crooker, 86 T. 324 (24 S. W. Rep. 278, 788). Freiberg v. Brunswick-Balke-Collender Co., 4 App. C. C., 143. Suit was brought on a contract which on its face purported to have been executed "this 24th. l*so." The written contract was attached to the petition, and to it ap- peared the name of one subscriuing witness. The petition alleged that the con- tract was reduced to writing on the 24th day of January. 1880. There being no plea of non est factum, and the date of the execution of the instrument having been alleged, it was unnecessary to offer parol evidence of its date. In the face of such allegation, there could be no variance between the allegation and the proof. The variance claimed could not be material, and evidence of the true date of the contract could not have operated as a surprise. The contract, being one the parties could enter into, was good without date. An instrument which i^ MH"1 upon, if made a part of a petition, and filed with it for the inspection of tin' 'IrtVndant, controls and cures any misdescription of it in the body of the petition. Longley v. Caruthers. 64 T. >:. 5 Fisher v. Bowser, 1 U. C. 346. An ancient document, purporting to be a re- (ipt. which is a part of a party's evidence, but upon which no pleading is fouMilfl. may l>e impeached without an athMavit of forgery or won tst factum. Mclonn.'!l v. De Los Fuentt-s. 7 Civ. App. i:*6 (26 S. W. Rep. 792). b Richer* v. H.-lmcamp. 1 App. (.'. Wells v. Moore, lo T. 521. A rail- n>a not alleged to have been executed by or for such coin- 456 STATUTORY RULES OF EVIDENCE. [ 483, 484. A denial of partnership as alleged must be made under oath; 1 and in a suit against a railway company, where its liability for the transportation of specific articles is alleged to result from a part- nership with connecting lines, plaintiff is not required to prove the partnership in the absence of a denial under oath. 2 Under the pres- ent statute, an allegation of partnership must be put in issue by a verified plea in all cases. Under Paschal's Digest, article 1444, the partnership of the defendants in a case was put in issue by a plea not under oath. 3 The plea of non est factum relates to the time of pleading, and under it the defendant may show that the instrument was made void by matter subsequent to its execution. 4 483. Instrument executed by testator or intestate. When any petition, answer or other pleading is founded, in whole or in part, on any instrument or note in writing, charged to have been executed by any testator or intestate, it is admissible in evi- dence without proof of its execution, unless some suspicion be cast upon it by the affidavit of the executor or administrator of such testator or intestate. 5 Where a plea is filed by the representative of another person, mere negative averments in the affidavit do not cast a suspicion upon the instrument sued on. fi The affidavit may be made by the agent of the administrator ; and in a case in which the administrator is unwilling to make it, it may, with his consent, be made by the heir; 7 or the widow might be permitted to inter- vene and make the affidavit, where the intervention causes no delay. 8 484. Copy of instrument on file in another court. If suit be brought on any instrument or note in writing, filed in any suit brought thereupon in any other court of this state, a certi- fied copy of such instrument or note in writing, under the hand and seal of the clerk of the court in which the original may be filed, will be admitted as evidence in like manner as such original pany, and where no partnership is alleged as existing between it and another company which appears to have executed the bill of lading. Dillingham v r Fischl, 1 Civ. App. 546 (21 S. W. Rep. 554). See Blain v. Express Co., 69 T. 74 (6 8. W. Rep. 679). i R. S. 1265. 2 1. & G. N. Ry. Co. v. Tisdale, 74 T. 8 (11 S. W. Rep. 900). See Franklin v. Ton jours, 1 App. C. C., 506; Cleveland v. Duggan, 1 App. C. C., 82. 3 Congdon v. Monroe, 51 T. 109; Gushing v. Smith, 43 T. 261. H. & T. C. Ry. Co. v. Chandler, 51 T. 416. 6 R. S. 2318; Tarpley v. Poage, 2 T. 139; Parr v. Johnston, 15 T. 294; Barnett v, Logue, 29 T. 282. Van Hook v. Letchford, 35 T. 599. 7 Eborn v. Zimpleman, 47 T. 504. 8 Solomon v. Huey, 1 U. C. 265. iTT"KV i;n .! - :i)KNCE. 4."> 7 miirht he; but if the defendant shall plead and file an affidavit under oath that such original instrument or note in writing has not been executed by him or by his authority, the clerk of the court hav- ing the c-astody of such original is required, on being sub^t-naed as a witness, to attend with the same on trial of the cause. 1 485. Assignment, how put in issue. When a suit shall be instituted by any assignee or indorsee of any written instrument, the assignment or indorsement thereof will be regarded as fully proved, unless the defendant deny in his plea that the same is genuine, and tile with the papers in the cause an affidavit, stating that he has good cause to believe, and verily does believe, that such assignment or indorsement is forged. 2 The ne- cessity of proof is dispensed with, although the assignment is not indorsed upon the obligation, but is made by a separate instrument.' Farol evidence is not admissible to prove that the assignor, drawer or indorser has released the holder of a bill or note from his obliga- tion to use due diligence to collect the same. 4 486. Printed statute books. The printed statute books of this state, of the United States, of the District of Columbia, or of any state or territory of the United States, or of any foreign government purporting to have been printed under the authority thereof, are received as evidence of the acts and resolutions therein contained. A certified copy under the hand and seal of the secretary of state of this state, of any act or resolution contained in any of such printed statute books depos in his office, or of any law or bill, public or private, deposited in his office in accordance with law, is received as evidence thereof.* ! R S. 2314. When thf instnum'nt is on file in a cause in the same court, it may, by permission of the court, be withdrawn from the file for the pur|>ose of being used in evidence in another cause; or the clerk of the court may be com- pelled to attend with the instrument. Morrison v. Bean. 22 T. ."ill. 2 R S. 313. I 1 ,'*;."). When the assignment is made by an agent his authority must be denied under oath. Herndon v. Ennis, 18 T. 410. 'Durst v. Swift, 11 T. 27:',. RS. 310. R S. 2304, 2303. The y>"st evidence of the terms of an act of the legislature is a copy of the enrolled bill, duly certified: and it is admissible to show a variance between the statute as passed by the legislature, and as printed among the pub- lished acts. Central R Co. v. Hearn. 32 T. '.I''-. The certificate of the secretary of state of another state attached to what pur- ports to be a copy of a legislative act of his state, and authenticated hy the great seal of state, which declares that the copy is "an exact transcript of an act of the general assembly," etc., " as the same appears of record on page 180 of the official published acts of that year, now in my oftio-." wa* properly admitted in evidence to prove the legislative act. Harvey v. Cummings, 68 T. 599 (5 S. W. Rep. 513). 458 STATUTORY RULES OF EVIDENCE. [_ 487, 488. 487. Rate of interest in other states or countries. The rate of interest in any other state, territory or country is presumed to be the same as that established by law in this state, and may be recovered accordingly without allegation or proof of the rate of interest in such other state, territory or country, unless the rate of interest in such other country be alleged and proved. 1 488. Suit on sworn account. When any action or defense is founded upon an open account, supported by the affidavit of the party, his agent or attorney, taken before some officer authorized to administer oaths, to the effect that such account is, within the knowledge of the affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, such sworn account is taken as prima facie evidence, unless the other party shall, before announcing ready for trial, file a written denial under oath, stating that such account is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust. "Where he fails to file such affidavit he will not be permitted to deny the account, or any item therein, as the case may be. When the counter-affidavit is filed on the day of the trial, the party claiming under the account has the right to continue the cause until the next term. 2 This act was passed in 1883. It had been enacted in 1879, that an answer setting up that an account which is the foundation of the plaintiff's action, and supported by an affidavit, is not just, must be verified by affi- davit, and must set forth the items and particulars which are unjust. 3 It is held that this latter statute regulates the manner of pleading, but does not relieve a plaintiff from the necessity of proving his case by competent evidence. The statute first above mentioned (that of 1883) prescribes a rule of evidence applicable only to open accounts. The word account, as here used, has its popular rather than a tech- nical signification, and applies to transactions between persons, in which, by sale upon the one side and purchase upon the other, the relation of debtor and creditor is created by general course of deal- ing, and does not apply to one or more isolated transactions resting upon special contract. 4 i R. S. 2317; Moseby v. Burrow, 52 T. 396; Henry v. Roe, 83 T. 446 (18 S. W. Rep. 80S): Randall v. Meredith, 11 S. W. Rep. 170. -'R. S. 2323. 3 R. S. 1265. 4 McCamant v. Batsell, 59 T. 363. This suit was based upon the former surety- ship of plaintiff for the defendant, and the payment by plaintiff of defendant's debt, and it was held that the cause of action could not be stated as an " account " or "open account" within the meaning of the statute, which the plaintiff might lestablish by his ex parte affidavit. When the liability of the defendant rests upon the fact that the plaintiff was his surety and has paid a debt for him, that liability is the result of contract, which fixes its extent, the law fixing the time STATl tOKl Kl !.. - A claim against a railroad company for damages for the loss or destruction of goods is not an account within the meaning of the statute: the claim must be shown to exist by contract, either ex- - or implied. 1 A claim for property converted is not an account. 2 I'-, entitle a party to the benefit of the statute, the account should have been contracted in the ordinary course of trade, and should exist by virtue of a contract between the parties to the suit, and not be incidental to the suit, arising upon a contract between the plaintiff and third parties. The suit must be brought on the ac- count, and upon its face it ought, at least, to show a transaction between the parties, by which the defendant is prima, facie bound for the payment of the several items charged for goods sold and delivered, or other transaction legitimately forming the basis of an int proper. 3 The statute does not require that the items be en- tered in an account book. 4 When suit is brought upon an account verified by affidavit, the correctness of which is denied by the defendant under oath, the jn-'iin App. C. C., S107. To enforce a lien against a railway in favor of laborers under a subcontractor, proof must be made that the labor was performed at the instance of the subcon- tractor and " that the wages are due." Such an account is not admissible in t-viileiice under a sworn statement as to its correctness as an "open account" Au>tm & N. W. R. R. Co. v. Daniels, 62 T. 70. i H. & T. C. Ry. Co. v. White, 1 App. C. C., 104; G., H. & S. A. Ry. Co. v. Gil- di-a. 2 App. C. C., 271. * T. & P. Ry. Co. v. Looby, 1 App. C. C., S :>77. H. & T. C. Ry. Co. v. Hays.^ 1 App. < '. < '.. ? 7V.i; G., H. & S. A. Ry. Co. v. Mor- ris, 1 App. ' i T. A claim for various items of merchandise sold and de- livered in which there are inU-rminglfd itnns for money advanced is properly regarded as an account. Calm v. Salinas. 2 App. C. C., ? 10-L 4 Robinson v. Boganlus. 2 App. C. C., 55 828. a Olive v. H.-st.-r. W T. I'.K). "Sliuford v. Chinski. 2G S. W. R.-p. 141. 460 STATUTORY RULES OF EVIDENCE. [ 489. certainly cannot be permitted to deny the account without such affidavit; that is, the sworn account is conclusive in such case. The statute in the first place declares that the sworn account shall be taken asprima facie evidence in absence of a counter-affidavit, and then adds : " Where he fails to file such affidavit he shall not be permitted to deny the account, or any item therein, as the case may be." "Where, then, is the burden of proof when a counter-affidavit is tiled? The decisions seem to place it on the plaintiff. 1 A counter-claim is consistent with the justice of the claim sued upon, and may be interposed and recovered upon without the ne- cessity of filing an affidavit impeaching the account. 2 Where suit is brought against an administrator on a verified account claimed to be due from the estate, such account is not evidence in behalf of the plaintiff, as it involves a transaction with the decedent. 3 The affidavit must state that the account is, within the knowl- edge of the affiant, just and true; otherwise it may be excluded as evidence. 4 It must state that all just and lawful offsets, credits and payments have been allowed, and that the account is due, or it will not alone support a judgment by default; 5 and each item must be due at the time the affidavit is made. 6 The account must be veri- fied at the time suit is brought, or at least by way of amendment a reasonable time before the trial. It was held error to permit the account to be verified after appeal to the county court and immedi- ately before trial. 7 489. Charters and records of corporations. Charters of private corporations are filed in the office of the sec- retary of state, and are recorded at length in a book kept for that 1 Rives v. Habermacher, 1 App. C. C., g 747: G., H. & S. A. Ry. Co. v. McTiegue, 1 App. C. C., 461; Cahn v. Salinas. 2 App. C. C., 104; Robinson v. Bogardus, 2 App. C. C., 828. See English v. Miltenberger, 51 T. 296, where the act of 1874 is construed. This act provided that a sworn account should make a prhna facie case, which might be rebutted on filing a counter-affidavit, as under the present statute. 2 Bach v. Ginacchio, 1 App. C. C., 1316; G., H. & S. A. Ry. Co. v. Schwartz, 2 App. C. C., 759; English v. Miltenberger, 51 T. 296. S R. S. 2302; Leverett v. Wherry, 4 App. C. C., 187. The affidavit to an ac- count against a partnership proves the partnership, unless the same is denied under oath. Carder v. Wilder, 1 App. C. C., 14. < Shandy v. Conrates, 1 App. C. C., 235. 8 Duer v. Endres, 1 App. C. C., 323. "Shaunnessey v. Le Gierse, 1 App. C. C., 379; Sims v. Howell, 4 App. C. C., 180. 7 Bl.ikeley v. Wimberley, 4 App. C. C., S 64. A counter-affidavit may be filed after appeal to the county court, provided it does not attempt to set up a counter-claim or set-off, but only to contest the account. Tex. & Pac. Ry. Co. v. Norton, 1 App. C. C., g 403. In a suit on an account by the assignee thereof, an affidavit made by the assignor after the assignment is not a compliance with the statute. Carpenter v. Histo.ical Pub. Co., 24 S. W. Rep. 085. 4 ' 8TATI loicv i;i I.I.- W 4'.l purpo-.-. The oriirinal remains on file in the office, and a copy thereof, or of the record, certified under the great seal of the idence of the creation of the corporation. 1 The records of any company incorporated under the provisions of any statute of tliis state, or copies thereof duly authenticated by the signature of the president and set-rotary of such company, under the corpo- t hereof, are competent evidence in any action or proceed- ing to which such corporation may be a party. 2 The directors must cause a record to be kept of all stock subscribed and trans- d. and of ail business transactions.' In a suit by a corporation >ne of its members to collect an assessment, the best evi- e that a 1 :ient was made is the record of the order of the board of directors, and the loss of the original record must be shown before parol evidence is admissible. 4 >0. Copies of public records in this state admissible in evidence. Copies of the records of all public officers and courts of this state, certified to under the hand and seal (if there be one) of the lawful possessor of such records, will be admitted as evidence in all cases where the records themselves would be admitted. 5 They will be ed without further proof of the original, and without the filing previous to the trial, and notice to the opposite party. 8 But :s which are mere private property, and which do not belong to or constitute archives of a public office, derive no legal authen- ticity from the certificate of a public officer. 7 And when documents 1 R. S. 04--,. R. S. 662. * (Juadalupe & San A. R Stock Ass'n v. West. 76 T. 461 (13 a W. Rep. 807). The acts of a private corporation may be shown by other te-timony than a rec- ord or minute of its pro< .uless tin- ^tatnte declare* to the contrary. tl may IK- |.n .\M| Kv direct evidence or inferred fn-in circumstances. Ft. W. I'uh. ( ',," v. Hit-Mil. WT. 210 (14 S. W. Rep. N4:J; Ifi S. W The pro- i^s and resolutions of a private corporation omitted from the recorded minutes may be shown by other twtihxmy. Tin- P "i-d- .-IP- ^rima facie evi- dence of the fact- tln-n -in -tated. and that all tilings were rightly done. Tlie lisputin^ sur-li a n -cord must be convincing and satisfactory. Pickett v. Abney, ^-t T. '.r. r.i S. W. !;. |.. ^:>9). Books of a corporation containing ac- count- of tran-actions by the corporation through its agents are usualh to be competent evidence on an issue b-tween tin- r-orjioration and one of its ni.-iiil.-T-. Fraii--.-T--x.iM I- < '. v. Chaptivi-. :: S. \V. !:].. Ml. R S. -.;<;: Hou-ton v. I'en 10; Hul-i-t v. Marti- tt. '. T. 97; Eakin v. Shmuak.T. r.' T. :>!: Poor v. Bert v. Bartlett.'. T. '.<:. Where a ronmii i<-iier of the general land office It in hi- office, it was hel.l tliat it was a good objection that the records were not pro lured, they Iwing hit'liei tlian the coinmis- ; '- f.,nrlu-i..n- as to tli.'ir contents Stalfi.!-! v. King. 30 T. 237; Baas T. Miti-h-ll. to T : II. -rnilon v. Ca-i:u'. 7 fc Dikes v. Miller, 11 Assignment- of land certificates deposited in t! 1 land office for 462 STATUTORY RULES OF EVIDENCE. [ of a public nature are, by a mistaken construction of the law, placed in an office to which they did not properly belong, they can- not be authenticated by the certificate of the officer having them in charge, and are not admissible as evidence without further proof. 1 All documents of a public nature, which the party has a right to inspect, and which there would be an inconvenience in removing, may also be proved by an examined copy, duly made and sworn to by any competent witness. 2 A certified copy of a record is higher and better evidence of the contents of the record than the state- ments of witnesses. 3 Certain books, papers, documents, records, etc., are declared by statute to be archives of the general land office and other public offices of the state. 4 It rests with the legislature to determine what shall become an archive. 5 The statute authorizes the use of certi- fied copies of such papers only as are required or permitted by law to be filed in the several offices named; and it is held that para- graph 5 of article C2 of the Revised Statutes, declaring certain pa- pers archives of the general land office, does not apply to private papers deposited in that office. 6 the purpose of procuring patents to land on the certificates, until the issuance of the patent are uot records of that office in the sense that constitutes the com- missioner the custodian of them as such: and, consequently, the statute which makes copies of the records of all public officers, properly authenticated, admis- sible in evidence, where the records themselves would be, is not applicable to such assignments before they are constituted, and are recognized as records by the issuance of the patent; otherwise, however, after the issuance of the patent, Short v. Wade, 25 T. 510; Mason v. McLaughlin, 16 T. 24. J York v. Gregg, 9 T. 85. 2 York v. Gregg, 9 T. 85; Coons v. Renick, 11 T. 134. 3 Bigham v. Talbot, 63 T. 271. *R. S. 62-70. Downing v. Diaz, 80 T. 433 (16 S. W. Rep. 49); Tex. Hex. Ry. Co. v. Jarvis, 69 T. 527 (7 S. W. Rep. 210). 8 Rogers v. Pettus, 80 T. 425 (15 S. W. Rep. 1093). The protocol being in Mexico and the testimonio being in the land office in Texas as an archive, the instru- ments relating to land and being a colonial tract, "no case can be found in which it has been held that a copy certified from the land office was not admis- sible in evidence." Tex. Mex. Ry. Co. v. Locke, 74 T. 370 (12 S. W. Rep. 80). A transfer of a land certificate, upon which was based the delivery of a patent to the land by the commissioner of the general land office, when found in the land office is an archive, and a certified copy thereof from that office is admis- sible in evidence. Burkett v. Scarborough. 59 T. 495. The acknowledgment of proof of execution of a deed of conveyance from a railway company conveying land certificates issued to it by the state was not necessary to give effect to a conveyance of the same by the president of the company. Such a conveyance of certificates already located, on which patents had not been issued, was prop erly filed in the general land office, and a certified copy thereof under the seal of the general land office was admissible in evidence. Kimmarle v. Railway Co., 76 T. 686 (12 S. W. Rep. 698). An order or letter from the grantee of a land cer- tificate, directed to the clerk of the county land board, and dated February 25, 1638, directing the clerk as to the disposition to be made of the certificate when 491.] STATI i"i:v IMI.KS ..F F.VIPF.NCE. Generally, it is the fact that a document is a record or archive of an office that m;i .pv certified to by tin- h-iral custodian i.f the record or archive stand in the place of the original, where it is shown to be lost or cannot be produced. 1 Tin- -t.itiit.- n-re under consideration governs in the use as evidence of judgments of other courts, 2 and a duly certified copy is admissible without the neces- sity of filing among the papers of the case three day s before the trial, as is required in the case "f instruments which are permitted or required to be recorded in the office of the clerk of the county court.* 491. Copies of judicial records. Copies of records of courts of the state, certified to under the hand and seal of the lawful possessor of the same, are admk->nle in evi- dence in all cases where the records themselves would l>e admissible.* It is not necessary for a party to obtain transcripts of the orL papers and entries in the same court: lie may introduce the origi- nals. 5 A duly certified copy from the records of the district court, of a judgment rendered therein, is admissible in evidence without tin- aid of the statute making duly recorded instruments admissible, and consequently is not affected by the proviso requiring such in>ti:i ments to be filed among the papers three days before the comnp ment of trial. 6 It is not a valid objection to the copy of a judgment offered in evidence that it did not show that the court by which the judgment was rendered convened, and that a judge presided; nor that it did not have the signature of the presiding judge; nor that it failed to show that the minutes of the court of the term at which the judgment was rendered had been signed by the judge. The document appearing on its face to be the record of a court of the state, and bein<; duly certified to as such by the proper officer, de- fects in the proceedings on which the judgment wa> ba>ed, and which might be manifest on the face of the transcript, whilst t hex- might be urged to either impair or wholly destroy the validity of the judgment, would not render a copy inadmissible, but would iv late rather to the weight of the evidence, and to the effect, foi value of the purported judgment. 7 The minutes of a court import issued, is not an an-liiv.- of the county dork'* ntlii-,-. :marv that the signature of the judge should be attached to every copy issued by the clerk of judgments appearing in. the minutes. The fact that the judgment appears in the minutes is sufficient, and that fact is properly shown by the certificate of their custodian. That the judgment was rendered at a proper time by a proper au- thority, and is valid, is presumed ; that it is final is shown by its contents. 1 The custodian of judicial records, in giving copies, only sets them out as they appear, and so certifies ; and in an action for malicious prosecution, an omission of the clerk, who certifies a transcript of the proceedings in the alleged malicious prosecution, to state that the affidavit was made by defendant before the United States com- missioner, was held immaterial. 2 A certificate of a district clerk to a copy of a record of his office must be authenticated by the seal of the court. Without the seal it cannot be considered as the official act of the clerk. 3 The fact that certain papers have not been filed in the office of a clerk of a court cannot be established in a suit by the ex parte cer- tificate of that officer, but such fact must be proved by him as a witness in the usual way. 4 A partial transcript of proceedings in a suit is admissible in evidence where the entire transcript would be admitted.' The execution docket is not better evidence than a copy of the execution ; but even if the execution docket might show facts not shown by the execution, a certified copy of the execution would be admissible. 6 Clerks of courts are required to keep an execution docket in which they shall enter a statement of all executions as they are issued, specifying the names of the parties, the amount of the judgment, the amount due thereon, the rate of interest when it exceeds eight per cent., the costs, the date of issuing the execution, to whom delivered, and the return of the officer thereon, with the date of such return. Such docket entries shall be taken and deemed to be a record, 7 and certified copies thereof are admissible in evidence. 8 1 King v. Duke, 31 S. W. Rep. 335. The proper evidence of a decree of a court is a copy from the records of that court duly authenticated. Houston City Ry. Co. v. Martin, 2 U. C. 113. - Ward v. Sutor, 70 T. 343 (8 S. W. Rep. 51). 3 McCarthy v. Burtis, 3 Civ. App. 439 (22 S. W. Rep. 422); Kuykendall v. Marx, 1 App. C. C., g 669. < Myers v. Jones, 4 Civ. App. 330 (23 S. W. Rep. 562). 6 Lee v. "Wilkins, 1 U. C. 287; Guilford v. Love, 49 T. 727; Townsend v. Mun- ger. 9 T. 300. B Mitehusson v. Wadsworth, 1 App. C. C., 977. ' R. S. zy.rt. a Schleicher v. Markward, 61 T. 99. STATUTORY RULES OK K\ 1DKNCB. 465 x 492. Probate records. The county clerk is required to keep certain record books styled, lively. -Judge's Probate Docket," "Probate Minutes," "Claim 1 )o( k. t " ;md " Probate Fee Book." These books, or certified cop- ies therefrom, an- admissible in evidence in any of the courts of this .' All inventories and appraisements and lists of claims which have been taken, returned and approved in accordance with law in the administration of an estate, orthe record thereof, or cert i tied copirs of either the originals or the record thereof, may be given in evidence in any of the courts of this state in any suit, by or ar a copy therefrom would be the next best evidence of the contents of the original, to the exclusion of all other evidence of a weaker and less certain character. Parol evidence should not be allowed to contradict such copy. 4 A transcript of the records of a probate court, if relevant, cannot be excluded because there may be other lords pertaining to the administration of the estate. 5 ?' 493. Copies of wills, or of the probate or record thereof. All original wills, together with the probate thereof, must be de- ed in the office of the clerk of the county court of the county wherein the same shall have been probated, there to remain, except during such time as they may be removed to some other court by proper process, for inspection. Every such will, together with the probate thereof, must be recorded by the clerk of the county court in a book to be kept for that purpose, and certified copies of such will and the probate of the same, or of the record thereof, may be recorded in other counties, and may be used in evidence, as the original might be. 6 A will cannot be used as evidence of title, or of a link in a chain of title, in view of the provisions of the statute, until after it is pro- batrd in the manner and form prescribed by the law. 7 A will is .dmissible in evidence as such until shown to have been duly ' R a 1850. - K. S. 1981; Campbell v. Cox, 1 App. C. C., 526; Ross v. Harbert, 1 App. C. C, '19. 'R. a 2306. M\, Ilins v. Ball, 82 T. 259 (17 a W. Rep. 614). iilfonl v. Love, 49 T. 715. The recitals in the inventory made by an ad- ministrator are not evidence on an issue as to whether property was a home- stead. Blessing v. Edmonson, 49 T. 333. "R. a 5;: "Ochoa v. Miller, 59 T. 460. 30 466 STATDTOEY KULES OF EVIDENCE. [ probated. Presumption of probate of an ancient will will not ob- tain until it be shown that the records of the proper court for its probate are lost or destroyed. 1 When a certified copy of a duly recorded will is introduced in evidence, there is no necessity to ac- count for the original; the certified copy is of equal dignity, as evi- dence, with the original. The requirements of the statute in refer- ence to instruments permitted or required by law to be recorded do not apply to such a case ; that is, the instrument need not be filed among the papers of the case, and notice to the opposite party is not required. 2 494. Copies and certificates from certain state offices. It is the duty of the secretary of state, attorney-general, commis- sioner of the general land office, comptroller, treasurer, adjutant- general and commissioner of agriculture, insurance, statistics and history, to furnish any person who may apply for the same with a. copy of any paper, document or record in their respective offices, and also to give certificates, attested by the seals of their respective offices, certifying to any fact or facts contained in the papers, docu- ments or records of their offices, to any person applying for the same, and the same are admissible in evidence in all cases in which the originals would be evidence. 3 This statute contemplates only such papers as are required or permitted by law to be filed in the offices named. 4 The provision for certificates as to the existence of facts contained in any papers, etc., should not be construed to extend beyond the plain import of its language. It does not authorize a certificate as to what has been done in the land office ; but when a copy of the record, document or paper is not given, the certificate should be confined to a statement of the fact or facts contained therein. 5 * La Gow v. Glover, 77 T. 448 (14 S. W. Rep. 441). Zffickman v. Gillum, 66 T. 314 (1 S. W. Rep. 339). R.S. 2308. 4 Rogers v. Pettus, 80 T. 425 (15 S. W. Rep. 1093). 5 Buford v. Bostick, 58 T. 63. A certificate of the commissioner of the general land office to the effect that a land certificate issued to Thomas Toby had never been sold by Toby as agent for the republic, and that it was then and had theretofore been regarded as void and patent refused upon a location made under it, is not admissible as evidence under the statute, as it states conclusions and not facts of record. Fisher v. Ullman, 3 Civ. App. 322 (22 S. W. Rep. 523). It was error to admit in evidence a certificate of the commissioner of the general land office stating that he had made search in the general land office for the field-notes of certain surveys, and had been unable to find them, and that they were not in the files of said office, "and were never filed in the land office at Austin." Bacon v. State, 2 Civ. App. 692 (21 S. W. Rep. 149). A certificate as ta the effect of ancient records is incompetent as evidence. An examined copy of such part of the records as may be relevant to the issue should be produced. Howard v. Russell, 75 T. 171 (12 S. W. Rep. 525). Certified copies from the gen- 494.] STATUTORY BULKS OF EVIDENCE. The records of patents in the general land office stand in the same position, and have the same dignity and effect, as the original pat- ents delivered to the grantees. A certified copy of a patent from those records is primary evidence of its issuance. 1 A certified copy from the general land office of a deed properly filed in that depart- ment, and which under the statute had the force and effect of an original in that office, is admissible in evidence, after evidence of the loss of the original. 2 The facts certified to by the commissioner of the general land office as appearing in the records of that office are admissible in evidence only when the original document would be admissible. There appears to be no intention of extending the rules of evidence, so as to make facts admissible which were not before admissible under the rules of the common law. The statute simply provides the means of authenticating copies of documents in all cas which, for any reason, it is not proper or convenient to take the original out of the office; also for authenticating copies of any in- dorsement in any book or file upon a paj>er, or any like fact, per- taining to a document or record in such office. 1 Certified copies of maps from the general land office are admis- sible in evidence.* On an issue of forgery of what purported to be the protocol of a grant, it was not error to admit in evidence certified copies of sketches, maps and surveys nearly contempora- neous, made by those who participated in procuring the grant, and having reference to it, to be considered with other facts in evidence relating to the issue of forgery of the grant.* A map of land made by the county surveyor from records not in issue betv eral land office, niade by the commissioner and comptroller, in which they made as near as they could fac-rimile copies of a signature which they could not read, may be used in evidence. McCauiant v. Roberts, 25 S. W. Rep. 731. v. Mumme. 66 T. 268 (17 a W. Rep. 407), citing McGarrahan v. Mining Co., 96 U. S. 319. While a patent may. like other evidences of title, be recorded in th- county where the land lies, that fact does not affect its admissibility in evidence, and either it or a duly certified copy thereof from the general land office may be read in evidence without registration in the county, and without tin- notice prescribed in respect to recorded instruments. Jones v. Phillips, 59 T. 609. * Hines v. Thorn, 57 T. 98. 'Gaither v. Hanrick, 69 T. 92 (6 S. W. Rep. 619). It was held that a j- memorandum indorsed on a paper writing attached to what purported to be an original grant of land from the government, and which was found in the gen- eral hind office, but the genuineness of which grant was attacked, which i randum. among other things, declared that the grant was genuine, was not admissible in evidence to show the validity of the title. A copy of such memo- randum, certified to by the commissioner of the general land office, is not ad- missible as the copy of 8 document And see Hanrick v. Cavanaugh, 60 T. 1. Houston v. Blythe, 60 T. 506. Hanrick v. Dodd, 62 T. 75; Hanrick v. Cavanaugh, 60 T. L 468 STATUTORY ETJLES OF EVIDENCE. [ 495. the parties was admissible to show the location of the land as to surrounding tracts, etc. The fact that the map did not contain two small tracts, the deeds to which were not recorded, was not sufficient cause to reject it, unless the opposite party showed that he was injured by the defect. 1 The commissioner of the general land office may give certified sketches from the maps in his office, and in many cases they are admissible in evidence. 2 Sketches made from field-notes on file in the land office, with a view to show that certain tracts are situated as they are represented thereon, are not admissible. While map sketches from the maps in the land office certified to be correct are competent evidence, the certificates of surveyors appended thereto are incompetent and properly ex- cluded. 3 495. Certain transfers or deeds not to be withdrawn from land office. No transfer or deed that may be a link in any chain of title to any certificate on file in the general land office shall be withdrawn by any one ; it is the duty of the commissioner, on demand, to de- liver to the interested party certified copies, which will have the same force and effect as the originals. If, in any suit, there is any question as to the genuineness of any such original, the commis- sioner is required to deliver the same to the party to -whom the same may be ordered by the court where such suit is pending; and in such case, it is the duty of the commissioner to retain in his office a duly certified copy, which, in. case of the loss of the original, will have the same force and effect as the original. 4 Under this article certified copies of certificates from the commissioner of the general land office, under which land has been located, are admissible as original evidence when the originals are on file as archives. 5 All transfers of land certificates on file in the general land office are archives of that office, and certified copies thereof are admissible in evidence as the originals would be. 6 1 Haney v. Clark, 65 T. 93. 2 Tex. & Pac. Ry. Co. v. Thompson, 65 T. 186. 3Kuechler v. Wilson, 82 T. 638 (18 S. W. Rep. 317). The certificate of the comptroller from the records of his office is admissible in evidence where the area of adjoining lots may become material to aid in determining the division line between them. Edwards v. Smith, 71 T. 156 (9 S. W. Rep. 77). The comp- troller's certificates were admissible to show acts of ownership and claim to the land by the person paying the taxes. Also to contradict testimony by an- other who had testified to payment upon the same property, the records show- ing otherwise. McCamant v. Roberts, 80 T. 316 (15 S. W. Rep. 580, 1054). v the plaintiff. It was error to exclude the original deed procured from the land office upon affidavit of the defendant that its production was necessary, etc., when offered by the plaintiff, there being no other attack upon the original deed. 2 406. Notarial acts and certified copies. All declarations and protests made and acknowledgments taken by notaries public, and certified copies of their records and of papers, are received as evidence of the facts therein stated in all the courts of this state.' 497. Judicial records of other states. The records and judicial proceedings of the courts of any state or territory, or of any country subject to the jurisdiction of the United States, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certifies the judge, chief justice or presiding magistrate that the said attesta- tion is in due form; and the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken. 4 i McNeil v. O'Connor, 79 T. 227 (14 S. W. Rep. 1058). Though a patent to land may not disclose the number of the certificate by virtue of which it issued, that fact may be shown by certificate of the commissioner of the general land office. Talbert v. Dull, 70 T. 675 (8 S. W. Rep. 530). The record of the patent in the land office is a record from which copies are subsequently given. These copies are e\ i.lence of the original grant by the state, Stevens v. Geiser, 71 T. 140 (8 S. W. Rep. 610). .Ming v. Atkinson, 79 T. 162 (14 S. W. Rep. 1054). R S. 316, 230; Mun/.-sheimer v. Allen. :: Aj.p. C. C., 55. A copy of a ] of attorney properly authenticated is not a>U>l.- i: \vithout show- ing the loss of the original or accounting for its non-pn*iu-ti..n. Hammond v. M-y, 2 U. < < R. a U. S., 90. 1 ). The certificate of tli- judge, in th- authentication of the judgment of another state, nui-t be annexed to tin x-mplitication .f the rec- or.i. Norwood v. Col>l>. ','0 T. 588. Where then- was an ap|>arent -li-fect in the certificate of the cl.-rk in not showing that h.- a- .-1,-rk ..f th- court in which the judgment was render--.!, it wa- I>-1 : '. the judge having fied that the attestation was in due form of law. Harper \ Nic!i<-I. i:5T. 151. The judgment or decree of a court of another state, having jun- iicti'.n of the par- 470 .STATUTORY RULES OF EVIDENCE. [ 498. 498. Public records of other states, etc., how proved. All records and exemplifications of books, which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such country, by the attestation of the keeper of such records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the governor or secretary of state, the chancellor or keeper of the great seal of the state, or territory, or country, that the said attestation is in due form and by the proper officers. If ties and of the subject-matter, is conclusive as to the rights thereby adjudi- cated. Where suit is brought on a judgment of another state, allegations and evidence which merely attack the right of the plaintiff to recover in the orig- inal action, without more, do not conduce in any degree to sustain a general charge that the judgment was obtained by fraud. Norwood v. Cobb, 20 T. 588. But the defendant may impeach the judgment by averment and proof that he was not served with process, and did not appear in person or by attorney, al- though the record contain the return of process executed, and the judgment recite that he was served or appeared. Norwood v. Cobb, 15 T. 500; S. C., 24 T. 551. It has been held that judgments of justices of the peace are not within the provisions of the act of congress. 1 Greenl. Ev., 505. As to the faith to be given to judgments of a sister state, rendered upon constructive service, see Thouvenin v. Rodrigues, 24 T. 468. It is held that such judgments are conclu- sive between the parties as to the property within the jurisdiction of the state, but void as judgments in personam, unless founded upon personal service or appearance. Lincoln v. Tower, 2 McLean, 473; Westervelt v. Lewis, id. 511; Steal v. Smith, 7 Watts & S. 447; Miller v. Miller, 1 Bail. 242; Chamberlain v. Faris, 1 Mo. 517; Wilson v. Niles, 2 Hall, 358; Watkins v. Holman, 16 Peters, 25; Barrow v. Wirt. 23 Pick. 270; Whiting v. Johnson, 5 Dana, 390. A certificate, duly authenticated, of an appointment as administrator in an- other state, if good in form here will be presumed to be so where made, in absence of evidence showing otherwise. Abercrombie v. Stillman, 77 T. 589 (14 S. W. Rep. 196). For grounds making a certified copy of an affidavit on which a pros- ecution was based admissible in a suit for malicious prosecution, see Suter v. Wood, 76 T. 403 (13 S. W. Rep. 321). A transcript of a judgment which recites that it was rendered on a trial be- fore a named justice at a circuit court in the city of New York, in January, 1873, attested in January, 1874, by a different person styling himself " justice of the supreme court of the state of New York," does not appear to be attested by the judge of the court in which the judgment was rendered, and is not properly certified under the act of congress. If it appeared that the circuit and supreme courts were the same, the inference from the facts is that there was more than one justice of that court, and the certificate is defective in that it does not pur- port to be that of the chief justice or presiding magistrate. Randall v. Burtis, 57 T. 362. In the absence of an averment in the petition of a law, custom or procedure in the courts of the state where the judgment was rendered requiring a different construction to be given to it, a foreign judgment must be interpreted and held to have the same legal effect as if it had been rendered by our own courts. A judgment for the foreclosure of a mortgage will not be presumed to extend any further in the absence of averment and proof. Porcheler v. Bronson, 50 T. 555. '!.] STATUTORY RULES OF EVIDENCE. 471 the certificate is given by the presiding justice of a court, it must "be further authenticated by the clerk or prothonotary of tin- court, who must certify, under his hand and the seal of his <> that the said presiding justice is duly commissioned and qualified; or, if given by the governor, secretary, chancellor or keeper of the- great seal, it must be under the great seal of the > i itory or country in which it is made. The records and exemplification authenticated, are entitled to such faith and credit in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory or country from which they are taken. 1 ? 499. Comptroller's transcript in suits against officers. In suits by the state against any officer or agent thereof, on ac- count of any delinquency or failure to pay to the state any money, a transcript from the papers, books, records and proceedings of the office of comptroller of public accounts, purporting to contain a true statement of accounts between the state and such officer or -. authenticated under the seal of said office, is admitted as j'i /'//"/ facie evidence, and the court trying the cause may there- upon render judgment accordingly; and all copies of bonds, con- tracts or other papers relating to or connected with any account between the state and an individual, sued as aforesaid, when crrti- tied by the comptroller of public accounts to be true copies of the originals on file in said office, and authenticated under the seal of said office, may be annexed to such transcript, and will be entitled to the same degree of credit that would be due to the original i-s if produced and proved in court; but when such suit is brought upon a bond or other written instrument, and the defend- ant shall by plea under oath deny the execution of such instrument, the court must require the production and proof thereof. 2 ? 500. Certified copies from heads of departments. Certified copies under the hands and official seals of the beads of departments, of all notes, bonds, mortgages, bills, accounts or other documents properly on file in any of the departments of this state, are received in evidence on an equal footing with the origin . all suits in this state, where the originals of such notes, etc., would be evidence. 3 501. Taxes, assessment and payment of, how proved. Whenever in an)' cause it may be material to prove the assess- m<-nt of any property for taxes, or the payment of any taxes, the certificate of the comptroller of this state of such assessment from R a u. a, we. -' R S. 2310. 5RS.2315. 472 STATUTORY RULES OF EVIDENCE. [ 502, 503. the rolls deposited in his office, or that the payment of such taxes is shown by the records of his office, is admissible to prove the same. 1 602. Certified copies of chattel mortgages. When a chattel mortgage, deed of trust, or other instrument of writing intended to operate as a mortgage of or a lien upon per- sonal property, or a copy thereof, has been filed in the office of the county clerk according to law, a certified copy of such instrument,, certified to under the hand and seal of the clerk of the county court in whose office it was filed, is admitted in evidence in like manner as the original might be, unless the execution of the original has been denied under oath by the party sought to be charged thereby. The party desiring to use such instrument must file it in the papers of the cause before announcing ready for trial and not afterwards; and such certified copy will in all cases be received as evidence of filing and entry thereof in chattel mortgage record according to the indorsement of the clerk thereon. 2 503. Proof of appointment of executor, etc. Whenever it may be necessary to make proof of the appointment and qualification of an executor, administrator or guardian, the let- ters issued to them in the manner provided by law, or a certificate of the proper clerk under his official seal that such letters have been issued, will be sufficient evidence of the appointment and qualifica- tion of such executor, administrator or guardian. 3 Letters of ad- ministration are not the only mode of proving the authority of an administrator. The proof may be made by the records of the court, that made the appointment, or by certified copies thereof; such evidence is not secondary. 4 An administrator who is plaintiff in a suit cannot be required to prove his authority to prosecute the cause under a general denial or a plea of not guilty. 5 1 R S. 2316. Parol testimony is competent to prove payment of taxes. It is not necessary to produce the tax receipts. McDonough v. Jefferson Co., 79 T. 535 (15 S. W. Rep. 490); Jacks v. Dillon, 6 Civ. App. 192 (25 S. W. Rep. 645). 2 Acts 1891, p. 38; R S. 3330. Article 3 of the act of 1879, of which the above article is an amendment, provided that the certified copy should be re- ceived as evidence of the fact that the instrument or copy was received and filed according to the indorsement of the clerk thereon, but of no other fact. See Chator v. Brunswick Co., 71 T. 588 (10 S. W. Rep. 250); Boydston v. Mor- ris. 71 T. 697 (10 S. W. Rep. 331); Betterton v. Echols, 85 T. 212 (20 S. W. Rep. 63). While that act was in force, a chattel mortgage, registered under it, was not admissible in evidence unless its execution was proved as at common law. Bet- terton v. Echols, 85 T. 212 (20 S. W. Rep. 63); Edwards v. Osman, 84 T. 656 (19 & W. Rep. 868); Baxter v. Howell, 7 Civ. App., 198 (26 S. W. Rep. 453). 3 R S. 1907, 2321. 4 Outler v. Elam, 1 App. C. C., 1003, citing Abbott's Trial Ev. 56; 1 Greenl.. Ev. 519; Farnsworth v. Briggs, 6 N. H. 562. Dignowitty v. Coleman, 77 T. 98 (13 S. W. Rep. 857); Cheatham v. Riddle, 13- T. 112. 504, 505.] STATUTORY RULES OF EVIDENCE. 47$ 8 504. Partition proceedings and decrees for recovery of title. Every partition of any tract of land or lot, made un-ler any order or decree of any court, and every judgment or decree by which the title of any tract of land or lot is recovered, must be duly recorded in the clerk's office of the county court in which such tract of land or lot or part thereof may lie, and until so ivon-di-d the partition, judgment or decree will not be received in evidence in support of any right claimed by virtue thereof. 1 Such proceedings or decree arc not required to be recorded in full, but a brief statement by the clerk, under his hand and seal, setting forth the case in which the partition or decree was made, the date thereof, the names of the parties in the suit or partition, the particular land or lot lying in the county in which the record is made and the name of the party to whom the same is decreed, is sufficient." It will be n<> that no provision is made for admitting a copy of the record in evi- dence. 3 It is not necessary that a decree of partition be recorded to be competent evidence, save as against one claiming to be a bona fide purchaser without notice. 4 ?' 505. Recorded instruments admissible. Every instrument of writing which is permitted or required l>y law to be recorded in the office of the clerk of the county court, and which has been or may be so recorded after being proven or ac- knowledged in the manner provided by the laws in force at the time of its registration, is admitted as evidence without the n sity of proving its execution; 5 but the party who wishes to give it R a 4649. Ra4C50. Houston City R Co. v. Martin, 2 U. C. Hi Henderson v. Lindley, 75 T. 185 (12 S. W. Rep. 979). The above statute wa only intended for the protection of bona fide purchasers and creditor*, being a regulation affecting conveyances, and has no application when the judgment is otTt-n-d in evidence, without being recorded, in a second trial between parties to the former suit in which it was rendered. Russell v. Farquhar, 55 T. 355. The evident object of the statute is not to prohibit the introduction in evidence of a decree of the kind mentioned, under all circumstances, until recorded, but only to apply the system of registration to such a judgment or decree, and to deny to a party the right to so introduce it in evidence unless he shows its registration, or facts which make it, as between the parties and under the general provision* of thf> registration laws, admissible without registration. The statute wa* : designed to exclude such evidence where the parties had expressly agreed to its admission, nor where it had been by both parties substantially admit t-i in tlirir p'ea.lings. Thornton v. Murray. 50 T. 101. No portion of the transcript of the proceedings of an administration under which land was soU, on account of th- imprartirability of partitioning without sale, need be recorded in tin- county where the land is situate, in order to pvrniit th- intro7V are admitted in evidence under regula- tions therein prescribed. 5 >' 506. Copy of recorded instrument admissible. Whenever any instrument of writing has been recorded in the office of the clerk of the county court according to law, and any party to a suit shall file among the papers of the cause an affidavit stating that any such instrument has been lost, or that he cannot procure the original, a certified copy of the record may be admit- ted in like manner as the original. 6 The statute is in derogation of the common-law rules of evidence, Hancock v. Tram Lumber Co., 65 T. 2:2 ".: McFaddin v. Preston, 54 T. 404. "Where, a deed is recorded in one county, and describes land in another county, a copy is not admissible without a showing that at least a part of the land lay in territory over which the former county had juri*ilicti<>n. Tomlinson v. League, 25 S. W. Rep. 313; Falls L. & C. Co. v. Chiaholm. 71 T. 523 (9 S. W. Rep. 479): Ballaster v. Mann, 86 T. 643 (26 a W. Rep. 494). See Stout v. Taul, 71 T. 4:^ C'J S. \V. H,.,, That the certificate of the record of a deed was not attested by the proper seal is no objection to the competency of such deed in evidence, it having been shown by the production of the record \tooks that the deed was duly recorded in >uch rrc.-nls. Moses v. Dibrell. 2 Civ. AJ>J>. 4~>7; Falls L.& C.Co. m. 71 T. 52 (9 S. W. He p. 479). A deed may be read in evidence if recor ner the date of its filing for record appear upon it or not. Copelin v. Shuler, 6 S. W. Rep. 668. Where a deed is properly certified by the county clerk as though it were properly a part of the records of his office, it is prima facie admissible, Folts v. Ferguson. 24 a W. Rep. 657. - M. Ka.l.iin v. Preston, 54 T. 404. 'Lignoski v. Crooker. 86 T. 324 (34 a W. Rep. 27$, 788); Watson v. Blymer Mfg. Co., 66 T. 558 <2 s. \V Hep. 368). Cannon v. Cannon, 66 T. 682 (3 a W. Rep. 86); McDanicl v. Weiss, 53 T. 257. *R.a2318. * R. a 23121 476 STATUTORY RULES OF EVIDENCE. [ 506. and must be strictly complied with by the party seeking its aid.* It must appear from the affidavit either that the original has been lost, or that the party cannot procure it. Where the affidavit of- fered was, 1st, that the original was not, and never had been, in the possession of the party ; and 2d, that he does not know where it can be found, it was held not to be equivalent to the terms of the statute. 2 Where the instrument was not in the possession of the partv at the time of the loss, he should make a reasonable search for it. What degree of diligence in the search is necessary is not easy to define, as each case depends much on its peculiar circum- stances: the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and this is a preliminary inquiry, addressed to the discretion of the judge. 3 If the instru- ment is an important one, and the loss of recent date, the affidavit should show distinct acts of diligence to find the instrument, where it was deposited, and where last seen ; if the paper was ancient, or of little value, a less degree of diligence will be necessary. 4 It is not sufficient proof of loss of the instrument to prove the decla- ration merely of the person in whose custody it was at the time. 5 The non-production of the original instrument must be fully ex- plained in order to admit a copy of the record. 6 Though the cer- tified copy of a deed relied on as a muniment of title must be on file in the cause three days before the trial to authorize its intro- duction in evidence, it is not necessary that the party offering it should make affidavit to the loss of its original before the trial of the cause begins, in order that it may be read in evidence. 7 A copy 1 Cray ton v. Munger, 11 T. 234; Butler v. Dunagan, 19 T. 566; Hooper v. Hall, 30 T. 154 2 Crayton v. Munger, 11 T. 234. The affidavit, if made by any person other than a party to the suit, should exclude the supposition that the party has it in his power to produce the original; if made by an agent or attorney, it is not sufficient to state that he, the agent or attorney, cannot procure the original. Butler v. Dunagan, 19 T. 559; Hooper v. Hall, 30 T. 154. 8 Cheatham v. Riddle, 8 T. 162. An affidavit by a party stating that his ad- versary, who is the grantee, has possession of a deed, has been absent from the state for more than a year, still is absent, and his whereabouts unknown to affiant; that it is in existence, but knows not where it is, and cannot produce it, affords a predicate for the admission of secondary evidence of its contents. Rolwrtson v. Moorer, 25 T. 428. Bateman v. Bateman, 16 T. 541; Graham v. Henry, 17 T. 164. Dunn v. Choate, 4 T. 14; Clifton v. Lilloy, 12 T. 130; Hall v. York, 16 T. 18. 6 Firebaugh v. Ward, 51 T. 409. An affidavit by one of several defendants, that a bond or deed, duly recorded, has been lost or mislaid, and that affiant proposes to use in evidence a copy from the records, is a sufficient basis to admit the copy, at least in favor of the affiant. Nor is such right affected by mere pleading by the adverse party, alleging that the record has been tampered with, and its terms altered. Veramendi v. Hutchins, 48 T. 531. A certified copy of a lost deed is, when the statute is complied with, original evidence of the con- tents of the original. Vandergriff v. Piercy, 59 T. 371. 'Ross v. Komrumpf, 64 T. 390; Durham v. Atwell, 27 S. W. Rep. 316. 507.] 8TATI !"i:Y KULBC :iKNCB. 477 of a deed certified from tin- records of a county other than the one in which the land lies is not admissible. 1 A copy of a deed purporting on its face to be the act of a corpo- ration, certified to by the county clerk, and which recites that it xeetited by the officers of the company under its corporate seal, is admissible in evidence, though a scroll bv \vav of seal is placed in the certified copy where the corporate seal should have been attached in the original. It being a violation of the dutv of the recording officer to take the acknowledgment of the officers of the corporation unless the instrument was sealed with the corp< >eal. the presumption must obtain that it was thus sealed, after the lapse of twenty-live years from its registration. 2 A cert i tied copy of a patent taken from the county land records is subject to the same rules as to its competency as are copies of in- struments duly recorded, save when offered to show a common source of title, as provided in article 5266 of the Revised Statutes. The admission of a copy of a recorded patent taken from the county land register to prove title in behalf of the party offering it hie error where objection is made to its introduction and the statute was not complied with. 3 ^ 507. Affidavit of forgery of recorded instrument. AY here a party desires to attack as a forgery a recorded instru- ment relied upon as evidence by the opposite party, he must file his affidavit within three days before the trial, stating that he believes 1 French v. Groesbeck, 27 S. W. Rep. 4a See Ansaldua v. Schwing, 81 T. 198 (1C S. W. Rep. 989); League v. Thorp, 3 Civ. App. 573 (22 & W. R. ; ; 3. W. Rep. 685). 2 Catlett v. Starr, 70 T. 485 (7 a W. Rep. 844). The clerk, in certifying to a deed, certifies to everything upon it which is required to go upon the record to- gether with the deed, and especially to what must be upon the deed before it can be recorded. Copelin v. Shuler, 6 S. W. Rep. 668. Copy offered to show date of sale, and excluded. Held, harmless error, the date of record being shown by testimony of county cleric McCabe v. Brown, 25 S. W. Rep. 134. Where a certified copy of a deed is offered in evidence, and the certificate of the officer states that it was given under his hand and seal, it will be presumed that tin- seal was impressed upon the original document Point. T v. Flash, 9 U. C. 742. Fora record copy of a deed to be admissible in evidence it is not necessary that it contain anything to represent the seal required to a the certificate of acknowledgment of the deed. Bullard v. I*. Witt v. Harlan, 60 T. 660 (2 S. W. Rep. 41). Where a certified copy of a deed is offered in evidence, and the notary in his certificate declares that he had affixed his seal thereto, it is to be presumed that the seal was properly at though its place is not itidi.-at.-d l>y th- characters ordinarily used for that pur- pose. The same rule applies to the record its. If. when used instead of a cer copy thereof, under agreement of counsel. Coffey v. Hendricks, 66 T. 676 (2 a W. Rep. 47). Rio Grande & R P. Ry. Co. v. Milmo Nat Bank, 72 T. 467 (10 S. W. Rep. 563). See Lanier v. Ferryman, 59 T. 104. 478 STATUTORY RULES OF EVIDENCE. [ 508.. the instrument to be forged. This imposes upon the other party the burden of proving the execution of the instrument. The stat- ute has reference to such instruments as are permitted or required to be recorded in the office of the clerk of the county court. 1 Where defendant pleads non estfactum to the deed under which the plaint- iff claims, it devolves upon the plaintiff to prove by some of the modes of evidence of the common law the execution of the deed so attacked. It then devolves upon the defendant to support his plea with testimony to the forgery of the deed. The plea itself is not testimony ; and where no testimony supporting the plea was intro- duced, it was held error to submit the question of forgery to the jury. 2 If the instrument is not filed in the case by the party rely- ing upon it, an affidavit of forgery is not necessary to require proof of its execution. 3 The affidavit of one who is a stranger to the rec- ord will be sufficient. 4 An affidavit attacking the power under which an agent executed a deed which was duly acknowledged and re- corded does not prevent such deed from being admitted in evidence. 1 508. Transcribed records of new counties. Where a county has been created out of the territory of any or. ganized county, and the records of deeds and other instruments required or permitted by law to be recorded, relating to lands or other property in such new county, have been transcribed and placed on record in such new county, in accordance with law, 6 cer- tified copies of such transcribed records in the new county may be admitted in evidence with like effect as certified copies of the orig- inal records. 7 By an act of 1879 it is provided that transcribed 1 R. S. 2312. 2 Robertson v. Du Bose, 76 T. 1 (13 S. W. Rep. 300); Cox v. Cock, 59 T. C21; Cair- -rell v. Higgs, 1 U. C. 56. Proof of the due execution of the deed must be made by the production of the subscribing witnesses, or one of them, if living, or if dead, incompetent to testify, or not to be procured, then by proof of their hand- writing. Proof of handwriting may be made by one who has seen the partj r write, or, having received letters from him purporting to be in his handwriting,, has afterwards communicated with him personally respecting them. (1 Greenl. 763-769.) Cairrell v. Higgs, 1 U. C. 56. Evidence as to the reputation of the sub- scribing witnesses does not of itself alone establish the genuineness of the deed in, question. The execution of such deed being not sufficiently proved by such evi- dence alone, it is error to permit copies from the record, or even the original, to be admitted in evidence. A deed between the same parties, which may be in every respect legal, but relating to land in no way connected with that in con- troversy, is inadmissible to prove up an instrument whose forgery is alleged. (Holmes v. Coryell, 58 T. 685; Newby v. Haltaman, 43 T. 317, and other cases, cited.) Belcher v. Fox, 60 T. 527. 3 Brown v. Perez, 25 S. W. Rep. 980. 4 Story v. Flanagan, 57 T. 649. Moses v. Dibrell, 2 Civ. App. 457 (21 S. W. Rep. 414). R.S. 4668. 'R. S. 2319. 509.] STATUTORY RULES OF EVIDENCE. 479 records for new counties or for newly-attached territory, as pro- l for by law, when properly verified and certified shall have all the force and effect in judicial proceedings in courts of this state as the original records. 1 Provision is now made for keeping sepa- rate books of record for unorganized counties, to be delivered to the proper officer when the county is organized, or is detached and attached to some other county. Where such separate records have- not heretofore been kept, provision is made for furnishing certified transcripts of the record to the proper officer, on the organization of the county or its attachment to another county. 1 g 5O9. Translated copies of land office records. Translated copies of all records in the land office, certified to under the hand of the translator and the commissioner of the gen- eral land office, attested with the seal of said office, are j>< facie evidence in all cases where the original records would be evi- dence. 1 The usual form of authentication is for the translator to cer- tify the correctness of the translation, and for the commissioner to certify that he is the translator.* In the absence of the commissi. >nor of the general land office the chief clerk can authenticate all instru- ments required to be authenticated by the commissioner, and when the chief clerk acts it will be presumed that the facts authorizing him to act existed. 5 The translation of a general land office archive paper from the original Spanish into English, made by the Spanish translator in the R S. 2320. Acts 1887, p. 94; R S. 4641. See Lumkin v. Muncey. 66 T. 311 (17 a W. Rep. Ufor.l v. Jones. 71 T. 519 (9 S. W. Rep. 470); Falls Land Co. v. Chisholm, 71 y S. \V. Rep 479); Baker v. Beck, 74 T. 562 (12 S. W. Rep. 229); Broussard v. Dull, 3 Civ. App. 59 (21 S. W. Rep. 937). R. & 2306; Hatchett v. Conner, 80 T. 104. A certified copy of a paper coming from the land office is not admissible in evidence, unless the paper be a public document of which the commissioner is the legal custodian. A paper, to be en- titled to admission into the land office as an archive, must have constituted an archive or record of some former office. It is immaterial in whose possession the paper may have been before its deposit; whether in that of an einpresario, political chief, alcalde, commissary or commissioner for issuing land titles, or any other person, provided it shall have been an archive or an original docu- ment or register in some office, and appertained to the land of th w republic. But a second copy of a title which was granted by the governor of Coahuila and Texas on the petition of the interested party and certified as tru.- by th> secretary of state, being issued to the interested party in 1* :i f'-r \\\> j>rn and to serve him as evidence of his title, was held not to be in tlu> >thVi:i tody of the commissioner of the general land office, and a was therefore inadmissible. Paschal v. Perez, 7 T. 348. A testimonio deposited in the land office is n..t a n-.r.i thereof. Hatchett v. Conner, 30 T. 104. Hubert v. Bartlett, 9 T. 97; Swift v. Herrera, 9 T. 263; Spillars v. Curry, 10 T. 143. Spillars v. Curry, 10 T. 143; R a 2874 480 STATUTORY RULES OF EVIDENCE. [ 510, 511. general land office, and attached to his deposition as an exhibit, with his certificate of its correctness, is admissible in evidence, in connection with his testimony showing his ability to read and write the Spanish language, and that he had attached the exhibit as a translation of the archive Spanish paper. 1 51O. Copies of instruments filed prior to 1837. Copies of all conveyances and other instruments of writing be- tween private individuals, which were filed in the office of any alcalde or judge in Texas previous to the first Monday in February, 1837, are admissible in evidence, and have the same force and effect as the originals thereof; but such copies must be certified under the hand and official seal of the officer with whom the originals are now deposited. 2 Such copies are admissible in evidence without other proof of the originals, and without the necessity of filing three days previous to the commencement of the trial and of giving no- tice to the opposite party. 3 To make a copy admissible in evidence, the original must have been executed with all the formalities re- quired at the time to constitute it a public or authentic act ; and if it wants the signature of the officer before whom it was executed, 4 or was executed without either instrumental or assisting witnesses, 5 or with but one assisting witness, 6 while the conveyance is valid, it cannot be read in evidence without proof of its execution according to the general principles of evidence. 7 511. Certain titles not evidence, unless, etc. Titles to land which may have been deposited in the general land office subsequently to the time when the land embraced by such titles had been located or surveyed, by virtue of valid land war- rants or certificates, are not received as evidence of superior title to the land, against any such location or survey, unless such elder title had been duly recorded in the office of the county clerk of the county where the land may have been situated prior to the location and survey, or unless the party having such location or survey made i Houston v. Blythe, 60 T. 506. See Tex. Hex. Ry. Co. v. Locke, 74 T. 370 (17 S. W. Rep. 80). 2R. S. 2311; Andrews v. Marshall, 26 T. 212. 3 Hubert v. Bartlett, 9 T. 97; Andrews v. Marshall, 26 T. 212. < Andrews v. Marshall, 26 T. 212. 'Grimes v. Bastrop, 26 T. 310. 6 Clay v. Holbert, 14 T. 189; Ruis v. Chambers, 15 T. 586; Watrous v. McGrew, 16 T. 506. " Clay v. Holbert, 14 T. 189; Andrews v. Marshall, 26 T. 212. A certified copy of the notarial act of a judge of the first instance, made in December, 1835, which was certified to by the county clerk as being a copy of the original which was on file in his office, and which was an archive thereof, is admissible in evi- dence without proof of the execution of the original Storey v. Flanagan, 57 T. 650. 512.] STATUTORY RULES OF EMM- M had actual notice of the existence of such elder title before he made such location nr\ ? 512. Record of certain titles confirmed; shall be evidence, when. The act of February 9, I860, provides as follows: "Any irrant, deed, or other instrument of writing for the convex a: il >- tate or personal property, or both, or for the settlement thereof in marriage, or separate property, or conveyance of the same in mort- gage, or trust to us.-s. or on conditions, as well as any and every other deed or instrument required or permitted by law to be registered, and which shall have been, prior to the Oth dav of February, 1 or recorded, shall be held to have been lawfully regis- tered. with the full effect and consequences of e: 1st ing laws; pro- /, the same shall have been acknowledged by the grantor or grantors before any chief justice, or associate justices, or clerk of the county court, or notary public in any county within the late republic or the now state of Texas, or judge of the department of Brazos, or any primary judge, or judge of the first instance in or 1^3*;, or pi-oven before any such officer by one or more of the subscribing witnesses thereto, and certified by such officer, whether such acknowledgment or proof shall have been made before any such officer of the county where such instrument should have recorded or not* "All such instruments which shall have been acknowledged or proven before any officer named in the preceding article, and which shall have been afterward recorded in the proper county, or cer- tified copies thereof, shall be evidence in the courts, as full sufficient as if such acknowledgment had been taken or proof made in accordance with existing laws; but this article and the article preceding shall not be construed so as to affect or bind, in any man- ner, any person or party with constructive notice of the e of any deed or other instrument of writing as a recur led d- ! , ,r instrument, except after the 9th day of February, ISO", ami in the future." 1 R - R S. 4667. The constitution of 1876 provides that no claim of title or ri^ht to land which issued prior to the 13th day of November, 1835, and which has not been duly recorded in the county where the land was situated a- of such record, or which has not been duly archived in the general land office, shall ever leposited in the general land office, or recorded in this state, or delin.Mt. -I on the maps, or used as evidence in any of the courts of this Such rights :ni'i presumptions as arise from actual possession are not af- by thi> ) ''ily rrcw ;tle or right must have ben ! in the proper office, and that mere errors in the ate of r. .nformality, not allrrtin^ the fairness and good t;iitli of the holder of the claim, shall not be held to vitiate the record. Const, 31 482 STATUTORY RULES OF EVIDENCE. [ 513, 514. S 513. Copies of records of county surveyors. County surveyors are required to record in a w oil-bound book all the surveys in the county or district for which they were elected, with the plats thereof that they may make, whether private or of- ficial, and certified copies of such record under the official signature of the surveyor may be used in evidence in any of the courts of this state. 1 514. Archives of former governments. Archives of the offices of the former government are admissible in evidence in cases where they are not irrelevant; and where an archive which concerned the title to land was produced from the person who possessed and claimed the land, and it was identified by a witness, who testified that he had seen it on record among the archives of the department at San Antonio, in 1834 and 1835; the same witness testifying that, during the revolution of 1836, the pub- lic records were scattered about the rooms in which they were kept ; that persons took possession of those in which they were in- terested, and that this archive was taken possession of by some one, he did not know by whom, it was held that under the circum- stances the fact that it did not come directly from the proper cus- tody was no objection to admissibility. 2 But where, by the change of government in this state, the original now remains as an archive of a foreign state, and there is no means of testing its genuineness, or the verity of the proffered copy, by any record or other evidence within the limits of our jurisdiction, extrinsic evidence of the exe- cution or genuineness of the instrument offered must be produced. 3 art XIII, 4 This provision was held in conflict with the constitution of the United States in Tex. Hex. Ry. Co. v. Locke, 74 T. 370 (12 S. W. Rep. 80). In Downing v. Diaz, 80 T. 436 (16 S. W. Rep. 49), it was held not to apply to titles evidenced by records in the land office at the time, as were titles evidenced by the Haynes report. In Tex. Mex. Ry. Co. v. Jarvis, 69 T. 527 (7 S. W. Rep. 210), it was held to have no application to the transcript of the visita general of 1767 concerning the city of Laredo, deposited in the land office before the adoption of the constitution, and that the admissibility in evidence of copies from the land office of such transcripts is not affected by article 63 of the Revised Stat- utes, in respect to archives of the general land office. By an act passed in 1881 (sub-section 6 of article 62 of the Revised Statutes), owners of land between the Nueces and Rio Grande rivers, under grants or titles from the former government, such as are described in the above constitu- tional provision, and which have been recorded in the respective counties in which the land is situated, but not archived in the general land office, are re- quired to deposit and archive their titles in the general land olrice. Such titles when so archived remain subject to all defenses. 1 R. S. 2307. Certified copies of the records of offices of district and oounty surveyors are admissible to show by what certificate a given survey was made. Stout v. Taul. 71 T. 438. 2 Herndon v. Casiano, 7 T. 322. 'Paschal v. Perez, 7 T. 348; Ward v. McXinney, 25 T. 258; Lambert v. Weir, 515.] .ITToUY i:ri.I-> F KVIDKNCE. 483 ? 515. Miscellaneous statutory provisions. Tlif board appointed to examine practicing denti>ts is required to iter in a book the names of all persons licensed to practice den- tistry by such board, ami a transcript from such book, certified to by the officer who has it in keeping, with the common seal of the loarl, is evidence in any court of this state. 1 Kvery instrument executed by the commissioner of insurance of tjjis state, or of any other state in which the substantial prov of the laws of this state relating to insurance have heen or shall IK* enacted, pursuant to authority conferred by law and authenti< by his seal of office, will be received as evidence, and copi, papers and records in his office certified by him, and so authenti- I, will be received as evidence with the same < An affidavit of the publication of the terms of a limited partner- ship, made by the publisher of the newspaper in which the publica- tion is made, may be filed with the clerk directing the publication, and is made evidence of the facts therein contained. 1 It is made the duty of the railroad commission, upon application of any person, to furnish certified copies of any classification, rates, rules, regulations or orders; and such certified copies, or printed copies puldished by authority of the commission, are admissible in evidence in any suit, and sufficient to establish the fact that any charge, rate, rule, order or classification therein contained, and which may be in issue in the trial, is the official act of the commis- sion. 4 27 T. 359. Though the practice has prevailed of permitting int -Hi- it M \ who are not lawyers, to testify in relation to the laws of Sjwiin and suits involving title to lauds, such evidence is only valuable as showing the con- t- !ii|M.raiH'ou8 construction given to such laws, and beyond this is valueleM when introduced to show what constitutes title. An instrument rt-rtili.-d toby an officer of a foreign government, which purports t- B the archives of his office, and which also contains, in the language of the <' descriptive recitals of other matters, which he alleges are contained in said archive^, cannot be used as evidence when the recitals in th- instrum which the certificate is attached are necessary to make intelligible tin- t x tracts from the archives. State v. Cuellar, 47 T. 285. R S. 1683, 1684, & 3592. CHAPTEE XXXI. INTRODUCTION OF EVIDENCE. 516. Time and order of introducing evidence. 517. Omission in testimony may be supplied. 518. Exceptions to admission or ex- clusion of evidence. 519. Examination of witnesses. 520. Leading questions. 521. Cross-examination. 522. Discrediting or impeaching wit- nesses. 523. General rules as to impeachment of witnesses. 524. Impeachment by proof of repu- tation. 525. Impeachment by proof of con- tradictory statements. 526. Impeachment by reference to former testimony. 527. Testimony admitted for specific purpose. 528. Evidence improperly admitted may be withdrawn. 529. Amount of cumulative evidence may be limited. 530. Placing witnesses under the rule. 516. Time and order of introducing evidence. The party, plaintiff or defendant, on whom rests the burden of proof on the whole case, begins and offers his evidence in chief, and is followed by the opposite party, after which the intervener, if any, offers his evidence. The parties are them confined to rebutting testimony on each side. 1 The defendant may admit plaintiff's cause of action, and thus obtain the right to open and close. 2 The party who opens the case is not bound to do more than in- troduce enough evidence to make a prima facie case for recovery ; he may strengthen his case by other evidence after it has been at- tacked by his adversary. Hence, when, in a case of trespass to try title, after the defendant, whose deed had been attacked as a for- gery, had made a prim& facie case of its genuineness, and the plaintiff had introduced evidence in rebuttal showing that the grantor in the deed was not at the place where it purported to bear date at that time, the defendant was properly permitted to show by other witnesses that the grantor was at that place at the time the deed bore date, and to strengthen his case by other evidence. Such practice is not violative of rule 31 of the lower courts. 3 But where a party offers a part of his evidence and rests, and such evi- 1 R S. 1297. 2 Rule 31. 'Mahan v. Wolf, 61 T. 488; Markham v. Carothers. 47 T. 21; Bounds v. Little, 79 T. 128 (15 S. W. Rep. 225): Mayer v. Walker, 82 T. 222 (17 S. W. Rep. 505); San A. & A. P. Ry. Co: v. Robinson, 79 T. 608 (15 S. W. Rep. 584); Carroll v. Watson, 1 App. C. C., 403, 517.] I.VIK.I>UTI..N 01 dence is not attacked liy his adversary, any additional r>viilnce is lilt-rely cumulative and not in rebuttal, and is proptjrlv cxclnd The order in which evidence may bo introduced is largely in the discretion of the judge. 3 The order in which evidence may bo introduced may often di-pmd upon its relevancy at the time it is offered as shown by the facts then proved. The rule is that when the relevancy of testimonv depends upon the existence of other facts, and no evidence is offered to es- tablish -such facts, and no statement made that counsel < prove them, it is not error to exclude the testimony. 1 517. Omission in testimony may be supplied. The court may at its discretion, at any time before the conclusion of the argument, where it appears to be necessary to the due ad- ministration of justice, allow a party to supply an omission in the testimony, on such terms and under such limitations as it may pre- scribe.' Whether the plaintiff, after the defendant has closed his ; mony, shall be permitted to introduce evidence not in rebuttal, in the discretion of the presiding judge. 5 The statute lea\ largely within the discretion of the trial judge as to the admi of testimony, and defects in proof may be supplied at any time be- fore the conclusion of the argument. And where the testimony is confirmatory of the prima facie case already made* by the party offering it, ami fortifies the case upon points wherein it 1 Avers v. Harris, 77 T. 108 (18 &yw. Rep- 768 X In an action for slander plaint- iff is not required to prove a good character in tho first inMamv; it hi> el ter is attacked, he may offer evidence in rebuttal Cooper v. Fi 1 I ".. Att >T a defendant had closed his testimony, it was hold proi*r to allow the plaintiff to .-.wear in rebuttal to an instrument in writing introduced A{ him tluit In- in" it, when it was not set out in tin- pK-adings of the de- fendant so that a plea of new est ^factum could be interposed; he couM : xpeotod t> anticipate it if he never executed it. Williams v. Deen, 5 riv. A pp. :i s. \V. K,.p. .->;J6). -t aniwny v. i 'itiwns' Nat, Bank, 29 a W. Rep. 506; & A. & ('a v. Kol.inson, 79 T. 608 (lo S. \V. K,-p. H84); MarUham v. Carol h. r-. \1 T. It ronsi-,tintf of imli-p.-n.lcnt facts maybe intro-hic.'.l in su.'li ur.U-r as to th.- <-.,urt may s.-.-m propt-r. Kains v. Hoo.l. >:', T. .*>.V>. Wlu-n nun V pl.-a l.-.l in a >uit ->n ;t noti-, the plaintiff is not r -.tricti-.l l>y tli-- pl-a or th. tice of thfc,.nrt>toa [.articular ..r.li-r in tin- introduction of t.'Miinony topru\c tli. . xeoution of the note. If h- provi-s all tin- fact* necessary to make out his ca-f, thf tlff'-inlant caniU't complain of tin- 'ipli-r in wliich the ev: : offm-l. unli-s it can be shown that the onl.T in whii-h it was presented t ti> misl.'.'ul aii'l i-ml>arraNS tin- jury. Davis \-. \V:lli<. 17 T. I'tl. S.-.- It. \V. & D. C i;>. r,,. v. .loin !-,,!!..-) civ. A.pfx9i(9fl s. \v. I, 1 . ' I v, Ucton, E App' lls,-j:S. \V. IJ.p. !!:!; liny v. M, '. - S. \V. K- p. 1U',; 1 ,V D. i v. Wihyii. sr,T. :!( -.'.' S. \V. ll.ns.'x v. I! 1. !), ')S. \V. i; Williams v. Ball, 52 T. 603. s 1 1 INTRODUCTION OF EVIDENCE. [ 518. attacked, a refusal to admit it has been held to be error. 1 It would require a clear case of abuse to authorize a reversal for the simple admission of evidence out of the order prescribed by article 1297 of the Revised Statutes. 2 By the terms of the statute the discretion of the court extends to the admission of evidence at any time before the conclusion of the argument, and, although no provision is made by law* for the ad- mission of additional evidence after argument, it is held that this would be within the discretion of the court; especially where the trial is without a jury. It is suggested that it would be proper to allow additional argument in such case. 3 It is held that the action of the court in permitting a plaintiff to introduce additional evi- dence after the argument has begun will not be revised, unless the defendant is prejudiced thereby; as when, in consequence of the failure to introduce the evidence at the proper time, he was not prepared with rebutting or explanatory evidence, or was not al- lowed to comment in argument on the evidence after it was intro- duced. 4 Where there is a failure to use due diligence to offer evi- dence at the proper time, the refusal of the court to admit it during the closing argument of plaintiff's counsel will not be revised, al- though the evidence was admissible and important. 5 It is within the discretion of the court to permit a plaintiff who has testified to be recalled to correct his testimony. 6 g 518. Exceptions to admission or exclusion of evidence. Exceptions to the admission of evidence will not be sustained when no reason is assigned for objecting, if the evidence is obviously competent and admissible as tending to prove any of the facts put in issue by the pleadings. The court may, in all cases, call upon the party offering evidence to explain the object of its admission, i G., C. & S. F. Ry. Co. v. Holliday, 65 T. 512. 2Folts v. Ferguson, 24 S. W. Rep. 657. 'Meyers v. Maverick, 28 S. W. Rep. 716. The recalling of a witness or admit- ting evidence after argument has commenced is within the discretion of the court whenever, in his judgment, the testimony offered is material to the ends of justice. It is said that the practice should rarely be allowed of recalling a wi ness, and should never be permitted where a party to the suit proposes to take the stand as a witness in order to materially and substantially change his own testimony. Walker v. Taul, 1 App. C. C., 32; Marx v. Lange, 61 T. 547; Haney v. Clark. 65 T. 93; G., C. & S. F. Ry. Co. v. Johnson, 83 T. 628 (19 S. W. Rep. 151). 4 Pope v. Davenport, 52 T. 206. The action of the trial court in refusing de- fendant permission to introduce evidence after close of the plaintiff's case in rebuttal will not be reviewed on appeal, especially where no reason is shown for the failure to offer the evidence in proper order. M., K. & T. R. Co. of Texas v. Bliss, 27 S. W. Rep. 219. T. .\. & Pac. Ry. Co. v. Curry,- 64 T. 85. G G., C. & S. F. Ry. Co. v. Poo'l, 70 T. 713. i^.] INTRODUCTION OF EV : and also upon the party caEoeptiBg to .irivethe IV.I-OMS for bfa objec- tions. When the grounds of objection arc stated, the must be -d with reference to the ground- oeptions to the admission or exclusion of evidence must Ire decided at the time they an- made, after such argument as the court may allow, and the court must make a memorandum of the point rtiKtl on. 1 The rule is that objection must be made in the I. \\.-r court, the evidence is otlered.-' The appellate court will c< o:ilv such objections as were made below, 8 and such only as the iv shows \veiv acted upon. 4 Objection should be made as soon as the inadmiasibility of ; mom i by the examination of the witness. It should then lx* insisted on. and if it be not sustained exception six mid be reserved; 1 the proper practice is to withdraw from the jury evidence as has been admitted without objection, as soon admissibility is discovered. 6 Where hearsay evidence is admitted without objection, it should be treated by the court as comp. for the purpose for which it was offered, provided it is uneoiitra dicted. The presumption is that if it had been obj'vted to and excluded, otiit-r evidence would have been offered in its pi The ruling of the court on the introduction of testimony, where the ground of the objection is not stated, will not be i it relates to the relevancy or competency of the The court may in its discretion refuse to entertain an objection to a question propounded to a witness unless the ground of obj. be stated; I nit should a general objection be entertained and cor- rectly sustained, it would be no ground for reversal, no substantial error having been committed. 9 Where part of t! lony of a Rules 57. 5*. 60. -' Wat* ,n v. Illymer Mf. Co.. 68 T. 558 (2 & W. Rep. 85.T 'owan, 64 I in v. Prater. 3 a W. Rep. 806; Ballew v. Ca^ p. 1W; Cariii..n v. Cannon. M T. fiv> (3 S. W. Rep. 36): Collins v. Hank, 75 T. 251 W. I I-.w v. Ma.UIoz, 81 T. 210 (16 & W. Rep. 877). Tevis v. AnnMi-Miur. 71 T. .VJ i S. W. Rep. 134). * Ellis v. < ;;n : s. W. Rep. 820). . k v. M;niry. / .', & W. Rep. 686> Bonn-Is v. l.ittl-. 75 T. 316 (12 & W. Rep. 1109). 'hani.-lv. H..IMI II.-p. 4-.M. If a |,r- .JHT ^runn-l f-.r the adoiissi -vi(i'nce is not laiil in tli" j.l.-a'lin-s ohjrction t-> its intr.-h. \; Id In- made when it is olF.-r. I. N>. ulijci-ti-m Ix-in^ tlx-n iii;nl--. a p.irry irill titl'-l t->;t ii. u trial <>n tin- -round that its >i< I mission operated a surpri* him. Fowler v. Chapman. 1 A pp. C. C., 965. A party is not i-ntitli-I t-> th.- >.-n-Ht >f an ohjcctiori t v of a witness wln-rr In- iwriiiits an'thi-r witness to swear to the same fai-t without ol.j.'rtion. (;.. H. ,v s.' \. i;y. ,,. v i 3 i:-p.939. : MrI>;inn-ll v. Horr-ll. 1 I _s. 21 T. 738L 'Flanagan v. Wi.maok, 51 T. 45. INTRODUCTION OF EVIDENCE. [ 519. witness is admissible and part is not, a general objection is not suf- ficient. 1 Courts do not look with favor on objections to testimony during the trial of a case, taken upon the ground that the pleadings are insufficient, where no exceptions have been tiled by the party ob- jecting; and it is only when pleadings are wholly defective, show- ing no cause of action, or no defense, that objections to testimony because of insufficiency of pleadings ought to be entertained. 2 "Where the objection goes to the sufficiency of a plea, the plea must be clearly bad on general demurrer. 3 It is the proper practice to settle the sufficiency of the pleadings before going to trial. If any other practice is encouraged, the parties will be induced to go to trial on defective and informal pleadings, after which it would be too late to amend. This would lead to confusion, uncertainty, de- lay and probably hardship. 4 519. Examination of witnesses. But one counsel on each side may examine and cross-examine the same witness, except on leave granted. 5 The examination of a 1 Fant v. Willis, 23 S. W. Rep. 99. A physician called as an expert, in giving his opinion upon the extent of the injury to plaintiff, testified to probable re- sults likely to follow based upon declarations made by plaintiff to witness not in evidence. No objection was made, but defendant by a charge requested that the testimony be disregarded, and it was. held that objections should have been made to the testimony when offered, and the instruction was properly refused. Mo. Pac. Ry. Co. v. Mitchell, 75 T. 77 (12 S. W. Rep. 810). Admission of irrelevant and immaterial testimony upon the part of the defense will not warrant the introduction in rebuttal of equally irrelevant and imma- terial testimony on the part of the plaintiff, and its exclusion by the court is not erroneous. McCartney v. Martin, 1 U. C. 143. The ruling of the court in excluding an answer being correct, any irregularity in reaching the result is immaterial. Etter v. Dugan, 1 U. C. 175. When material facts are proved and there is no conflict in the testimony touching them, it is immaterial that objections to interrogatories to other witnesses upon the same facts were improperly overruled. Such testimony is but cumulative. Ft. W. & D. C. Ry Co. v. Greathouse, 83 T. 104 (17 S. W. Rep. sa 1 !. - McDannell v. Horrell, 1 U. C. 521. 3 Powers v. Caldwell, 25 T. 852; Pyron v. Butler, 27 T. 271. 4 Booth v. Pickott, 53 T. 436. In this case objection was made to the intro- duction of a judgment, because it was not sufficiently described in the plead- ings of plaintiff, in not stating the court or county in which it was rendered, or that it was rendered by any court having jurisdiction. This want of cer- tainty would have been cured by verdict and judgment, and hence the objec- tion was virtually an effort to raise on the introduction of testimony a question which ought to have been settled on a demurrer to the pleading. Plaintiff sued upon certain drafts, and a demurrer to his petition was over- ruled: the court below afterwards refused to allow said drafts to be introduced in evidence. This was error, Green v. Guadalupe Co.. 2 U. C, 34, 519.] INTRODUCTION of TOM ]>arty to the suit is conducted and his testimony is received under sime ml.-.-; applicable to other while- In the examination of witnesses and the manner in which they may be. permitted to give in their testimony, soim-thing mi. left to the discretion of the judge. 3 As a general rule, the correct i a witness who does not testily us an exper ^. and leave deductions therefrom to bo drawn by the, jurv. 3 It is not error to permit a witness to testify generallv as to his knowl- of the matters in issue, without special interrogatorie p. int. A rule of practice it would prevent the objection S o often 1, that a question is leading. If the witness should attempt to give illegal testimony, this could be prevented by objection; or if given, it could be excluded on motion, as is often done. 4 A question propounded to a witness may be subject to objections, although the answer may not mislead the jury or injure the oppose party. A witness cannot be compelled to answer "yes" or "no"' when the nature of the question is not such as to make such an an- swer appropriate; in such a case it is not only the riirht but the duty of the witness so to answer that he may state the very truth, and have the jury clearly understand his answer. 4 It is not ground for reversal that an attorney on the trial below repratedl\ a>ked questions of a witness and withdrew them, stating as reasons for such withdrawal that ho did not wish any ground on which the judgment might be reversed. The remarks, however, wero improper, and should not have been made. If dur- ing a jury trial questions to a witness are propounded, apparently to establish things that did not exist, or to which it was known the witness could not testify, or to prove matters in a mode not allowed by law, with a view to make a false impression on the jury, such conduct, if shown likely to have influenced the jury, would be ground for reversal. 8 Tin.- objection, to a question put to a witness not a party to the IToohig v. Elliott, 2 U. C. 641, IL & T. C. Ry. Co. v. Smith, 52 T. 178. r,)|.,- v. Davenport, .vj T. -M6. ii. <'. I . !?'. 1 S. W. Rep, 179). In a suit on a not.' sriv.-n for a lease of a n<-\w|, ; ip . r the defense was a failure <>f tin- suliM-riptimi li-t ; ferred to amount t<- th sum reprust-nlMd. and it wax hdd that tin- !- asUi-d if h.' had not t^titi.-.l in tli.- justice court that thr list \va* worth dollar for dollar, ini^ht answer that ho mild it was ;ro...|. without U-invc i-ompt-i; .ally. .'ar|..-nt'-r v. Dowe, 2i - n for title uiKl |.o-H."sii,n of land, wln-n- plaintitTmi < r.-s-v., \aniinat imi isaskt-d \\ I. In- had not i-aiiN.-d a di-d of the land to be madt. from Id.-* ulli-m-l iaut. it i- nfuse to allow him to -tat' h (-11 r dir.-rt vii.iination. | Hick^. -,'.; ] -Mo. I'ac. Ry. Co. v. Mitcd.oll. 7'.' T. 171 du S. \V. K. \>. 111'. QoOMtl, in ex- amining witucs-:, havo nj riglit to read from a. Ktatcun-nt of facts, m tin 490 INTRODUCTION OF EVIDENCE. [ 520. suit, that its answer would tend to criminate him, must be made by the witness and not by counsel for one of the parties. 1 S 520. Leading questions. The general rule is that a party will not be allowed to lead his own witness, but this rule has exceptions. Sometimes, owing to the nature of the inquiry, it would be difficult to direct the mind of the witness to the subject without leading him, or particularly specifying the matter inquired about, and in such case it lies in the sound discretion of the court to permit a leading question. The proper exercise of such discretion will not be reviewed. 2 Interroga- tories pointing to such facts as will direct the attention of the witness to the matters on which his testimony is desired are not prohibited. 3 The matter is largely within the discretion of the court, to permit leading questions or not, and if the aciion of the court may be re- vised at all, the record must show the circumstances under which the question was allowed. 4 It is permissible to lead an unwilling witness. 5 Interrogatories may be so framed as to bring out conversations, even though they may be suggestive of the matters inquired of. 6 Thus, in cases of conversations, admissions or agreements, the ex- aminer may draw the witness' attention to the subject, occasion, time, place and person, and ask whether such a person said any- thing upon the subject and what he said. 7 The rule is that a question which suggests the answer desired in a matter material to the issue should not be permitted. 8 But it is not the particular form of expression by which a question is intro- duced, as "did or did not," etc., which determines whether the question is leading or not; but whether it is so framed as to sug- ing of the jury, what purports to be the testimony of that witness, taken in another cause, as a basis for questions to the witness as to what was his evidence in that cause. Pope v. Davenport, 52 T. 200. The court comments upon the impropriety of permitting an impertinent interrogatory, and the response thereto, having no bearing on any issue in the case, and calculated to prejudice the jury, to be read to the jury. G., H. & S. A. Ry. Co. v. Smith, 24 S. W. Rep. 668. See Yarborough v. Weaver, 6 Civ. App. 215 (25 S. W. Rep. 468). !San Antonio S. Ry. Co. v. Muth, 7 Civ. App. 443 (27 S. W. Rep. 752). '-'Eidson v. Saxon, 30 S. W. Rep. 957. 8 Long v. Steiger, 8 T. 460. Maloney v. Roberts, 32 T. 136; Bergen v. Producers' Marble Yard, 72 T. 53 (11 S. W. Rep. 1027). *Mann v. State, 44 T. 642. 6 Harrison v. Harwood, 31 T. 650. 7 Able v. Sparks, 6 T. 349. An interrogatory which refers a witness to his pre- vious examination in the same suit, and asks him if that be true, is leading, and not admissible. Trammell v. McDade, 29 T. 360. G., H. & S. A. Ry. Co. v. Smith. 28 S. W. Rep. 110; Able v. Sparks. 6 T. 349; Trammell v. McDade, 29 T. 360; Matins v. Buford, 17 T. 152; Bergen v. Pro u- cers' Marble Yard, 72 T. 53 (11 S. W. Rep. 1027). -1.] INTRODUCTION OF EVIDENCE. : he answer. If the question does suggest the answer his own wit- ness, except under circumstances appealing to the >>n of the court. 1 521. Cross-examination. The cross examination of a witness may bo directed to any mat- ters in issue, 2 and is not confined to questions propounded and an- swered on examination in chief. 3 But it is held that if a party asks questions not pertinent to the direct examination, he thereby makes the witness his own to that extent. 4 If a party recalls a witness merely for the purpose of cross-examination, he does not make him his own, unless he examines him as to matters not called out in the nil examination.' Any fact which shows bias is admissible, and any question pertinent to the issue may be asked.' The wit- may be asked questions calculated to show his skill, judgment, capacity, attentiveness to duty, etc., or his ladk of either of these qnalil It is proper to ask a witness on cross-examination any question that may IK- pertinent to the matter to be decided by the jury; and any fact to >h..w a bias in the evidence of the opp i le whether it be offered by the examination in chief or on -examination. 8 This rule is not confined to such questions as will show bias of the witness; for the purpose of showing this, or falsity in his main statement, a witness may be examined upon col- The rule extends to an examination into all mat- - onnected with the res gestce. Inquiry may be made into the situation of the witness in respect to the parties and to the subject of litigation his interest, his inclinations and prejudices, his means of obtaining a certain and correct knowledge of the facts about which he testifies, the manner in which he uses those means, his \ 20 T. 350, 22 T. 383. The following question was imp as leading: "Are not ordii.ary animals, such as are ordinarily ns.-d on : apt t< ! frightened and n? rvous and skittish when driven <-n plank roads and l.riiL witness answ.Tfl. " Yt-s." It \\a-t-ri it the question and ai,~u, i. Haldridge & Courtney Bridge Co. v. Cartrett, 75 T. 628 (13 Rep. 81 RoU-rts v. Miller, 30 S. W. Rep. 381. \Ventworth v. Crawford. 11 T. 127; HI. in v. Blake, T. 840. 7 T. 417. ' \V, ntworth v. Crawford. 11 T. 127. : ( unningham v. Austin & N. W. R Co., 31 S. W. Rep, 929; Dittman v. Weiss, 31 S. \V. 1^-p. 07. - \\\-ntworth v. Craw ford, 11 T. 127; Evansieh v. CJ., C. & S. F. Ry. Co., 61 492 INTRODUCTION OF EVIDENCE. [521. power of discernment, memory and description may be fully in- vestigated and ascertained. While the rule that only such evidence as is relevant to the matter in issue is admissible applies to the cross- examination as well as the examination, in chief of a witness, it is not applied with the same strictness to a cross-examination. Any fact which bears on the credit of a witness is a relevant fact ; and this whether it goes to his indisposition to tell the truth, his Avant of opportunity to know the truth, his bias, interest, want of mem- ory, or other like fact. 1 A witness may, on cross-examination, detail all his knowledge of the matters in issue in response to a general request to do so, if, in thus doing, no improper evidence is elicited. 3 He cannot be cross- examined as to a fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him. 3 . When a witness has on cross-examination more than once an- swered a question propounded by counsel, whether he shall again be required to- make answer to the same question is a matter within the discretion of the trial judge. The great object of the examina- tion being to elicit the truth, the bearing, moral courage, bias, mem- ory and demeanor of the witness, being apparent, will furnish guides for the discretion of the judge in determining the extent of the cross-examination, and that discretion will not be revised when no injury could have resulted from its exercise. 4 Considerable lati- tude should be allowed to ascertain the accuracy of the knowledge, skill and judgment of a witness testifying as to handwriting. 5 i Evansich v. G,, C, & S. F. Ry, Co., 61 T. 24, 3 Rhine v. Blake, 59 T, 240. 3 Dimmitt v. Robbins, 74 T. 441 (12 S. W. Rep. 94). A witness may be inter- rogated on cross-examination as to statements made by him showing his hos- tility to the party agaiost whom he is called, and if he deny having made them the statements may be proved by other witnesses, A witness for defendant on cross-examination denied having stated "he would be willing to swear that white was black and black was white in order to defeat plaintiff's claim;" it was competent to prove the statement by other witnesses, Tex. & Pac, Ry. Co. v. Brown, 78 T. 397 (14 S. W. Rep. 1034). The counsel for plaintiff in cross-examination asked a witness a number of qu?stions calculated to affect his credibility, and as if laying a predicate to im- peaoh the witness. Upon objection some of the questions were withdrawn. No further effort was made to impeach, and it was held there was no error and no ground for reversal Texas Standard Oil Co, v, Hanlon, 79 T. 678 (15 S. W. Rep. 703). G., C. <& 8. F. Ry. Co. v. Pool, 70 T. 713 (8 S. W, Rep. 535). When an executor Bought credit for money paid out for attorney fees and supported the claim by his own testimony, it was error to refuse plaintiff the right to cross-examine the defendant upon the necessity for the services and the reasonableness of the charges. Grothaus v. Witte, 72 T. 124 (11 S. W. Rep. 1032). s Brown v. Chenoworth, 51 T. 469, It is competent on cross-examination to test the condition of the mind of the witness, and his facilities for observing the matters of which he testifies. I, <& G, N, Ry, Co, v. Dyer, 76 T. 150 (13 S, W, Rep. 877), "23.] INTRODUCTION OF EVIDENCE. 493 ? 522. Discrediting or impeaching witnesses. Tlie uncontradicted statements of a witness cannot be reje by the court. 1 "Where an unirapeached witness states a fact of his own knowledge, it must be taken that he had competent means of information and competent knowledge of the fact, unless the con- trary appears.* But it is held that the jury are not Wind to be- lieve a party who, upon cross-examination, testifies to new u material to his case. 1 It is always admissible to show what im> a witness lias in the subject-matter of litigation. 4 AVhere a design to misrepresent, from some motive of into 1 has been imputed to a witness, a former statement, made by him at a time when the supposed motive did not exist, is admissible in confirmation of his evidence. 4 After the witness has testified in court, his answers there made may be contrasted with his answers made upon the same subjects in his depositions, with a view to im- peach his testimony." The statement of facts made up by counsel on a former appeal cannot be used in evidence for the purpose of contradicting a witness on a subsequent trial. 7 23. General rules as to impeachment of witnesses. A witness cannot be impeached or contradicted upon matter not material or relevant to the issue. 8 Where evidence tending to im- peach the credibility of a witness is admissible, but is offered for another purpose, if it be inadmissible to impeach the credit of the 1 Clark v. McGrath, 22 8. W. Rep. 527. 2 Kottwitz v. Bagby, 16 T. 656. Pridgen v. Walker, 40 T. 135. Vance v. Upson, 66 T. 476 (1 S, W. Rep. 179); Jones v. McCoy, 8 T. 849i Lewy v. Fischl, 6-5 T. 311. Vance v. Upson, 66 T. 476 (1 S, W. Rep, 179). ' Sinclair v. Stanley, 68 T. 718 (7 S. W, Rep, 511), The answers of a witness having been read by one party to discredit another witness, the adversary may introduce in evidence the further answers of the witness tending to show his own temper and feeling toward the witness he thus seeks to discredit, and his motives and interest in a former prosecution of the witness, about which he has been interrogated. The inquiry cannot extend beyond the witness* orn state- ment of his connection with such prosecution. G., C, & S, F. Ry. Co* T. Coon, 69 T. 730 (7 S. W. Rep. 492). It not appearing that a party suffered injury to his case from his having been fined by the trial court for contempt while being examined as a witness, the act of the judge in imposing such fine upon the losing party, who when testify- ing " was almost uncontrollable and would pay no attention to the questions of counsel nor admonitions of the court," will not be revised. Howard ^ 494 (5 a W. Rep.il. G., C. & S. F. By. Co. v. Coon, 69 T. 730 (7 S. W. Rep. 493): Dimmit v. Robbins, 74 T. 441 ( ! -1 v. Denman, 76 T. 306 (13 & W. Rep. 318); Sutor v. Wood. 76 T. 403 (1 s. \y. K-j,. 8*1 ; G < & S. F. Ry. Co. v. Kizxiah, 86 T. 81 (23 S. W. Rep, 5: , : 1ia v. Thomas. 5 Civ. App, 663 (23 a W. Rep. 385, 1118); Tex. & Pac. Ry. Co. v, Woodall, 2 App, C INTRODUCTION OF EVIDENCE. [ 524. witness, it should be restricted by the instructions of the court to the purpose for which it was intended. 1 The fact that a party sued out a commission to take the deposi- tion of a witness will not prevent his impeaching the witness when offered by his adversary, if the deposition was not taken, or was taken but not used. 2 The court may limit the number of impeach- ing and supporting witnesses, as it may limit the amount of mere cumulative evidence in any case. 3 624. Impeachment by proot of reputation. Where it is sought to impeach a witness by proof of bad character, the inquiry should be confined to his general reputation for truth, and should not extend to his general moral character. This rule is said to be in accordance with the great weight of authority, Amer- ican and English. 4 The inquiry is general, and proof of particular facts is not permitted. It is held that a witness may know and speak as to another's reputation for truth, although he may not have heard it discussed, and does not know what a majority of his neighbors may say or think of his character for truth. The mode of inquiry recommended is: Whether the impeaching witness knows the general character or reputation of the witness to be impeached, in point of truth, among his neighbors? and if so, then what the repu- tation is, whether good or bad? 5 After the Avitness has thus,_p/'i//ia facie, qualified himself to speak on the matter, before he answers the question as to what the reputation is, the opposite party should be permitted to cross-examine him as to his means of knowledge. 8 This is recommended as the better practice in all cases, and where it is not done, if the witness disqualifies himself on final cross- examination, his testimony should be withdrawn. 7 The evidence of witnesses, properly qualified, relating to the rep- utation for truthfulness and veracity of a person of mature age in the community in which he formerly lived, is admissible to impeach his present character. Such evidence is not entitled to as much weight as that relating to present reputation, and is subject to re- buttal by proof of present good reputation. 8 Where it is apparent that the belief of a witness is based upon his individual opinion and feelings, and not upon his knowledge of Weir v. McGee, 25 T. Sup. 20. 2 Nichols v. Jones, 36 T. 44& "Bowles v. Glasgow, 2 U. G 714 * Kennedy v. Upshaw, 66 T. 443 (1 S. W. Rep. 308)-, Boon v. Weathered, 23 T. 675; Weir v. McGee, 25 T. Sup. 20; Ayers v. Duprey,27 T. 600. 5 Boon v. Weathered, 23 T. 675; Johnson v. Brown, 51 T. 65. 6 Johnson v. Brown, 51 T. 65. 7 Clapp v. Engledow, 27 T. 252. * Myiiatt v. Hudson, 66 T. 66 (17 S. W. Rep. 396). -">.] INTRODUCTION OF EVIDENCE. 495 the reputation of the assailed witness, his testimony should be ex- elodi Where an attempt has been made to impeach a witness, testi- mony as to his reputation for truth and veracity is proper.' lint contradiction between witnesses in their testimony given upon the trial of a cause does not authorize the introduction of testimony to su>tain the contradicted witness by proof of general good char for truth and veracity. The witness must be attacked before cor- roboration by evidence of good character. 1 ^ 525. Impeachment of witness by proof of contradictory statements. A witness may be impeached by proof of contradicto' ments made by him out of court, but the inquiry must have I ence to matters which are relevant to the issue. Before such state- ments can be proved it is necessary to call the witness* attention to them, and ask him whether he made them, at a certain time and place, and to a certain person. 4 In laying the predicate for im- peachment, it is not necessary that the exact words suppos have been used by the witness in making a former statement should be given. It is sufficient if the alleged statement be repeated sub- stantially and with sufficient distinctness and certainty to fully call it to the attention of the witness.* Xor is it required that the exact hour or day be stated, but the time may be definitely fixed by other circumstances with sufficient certainty to put the witness fully upon notice and guard as to the particular transaction or con- versation in which the statements were made.' If the witness answers that he does not remember to have made the statement imputed to him. the better opinion seems to be that 1 Ayres v. Duprey, 27 T. 523. In order to impeach a witness it is incompetent to prove that several years ago he had been expelled from a Masonic lodge for false swearing. Dillingham v. Ellis, 86 T, 447 (25 S. W. Rep. 618). An important witness for the defense on cross-examination was required by the court objection by defendant, to admit that " he was a deserter from the United States army." This was error, G., C. & S. F. Ry. Co. v. Johnson. 88 T. 628 (ID & W. Rep." 151). And see Moore v. Moore, 78 T. 882 (11 a W. Rep. 8W). Howard v. Galbraith, 80 a W. Rep. 689. Tex. & Pac, Ry. Co. v. Raney, 86 T. 368 (28 & W. Rep. 840). The defendant, on cross-examination of the plaintiff, called out matter irrelevant to the issues being tried, as to who dressed the plaintiff's injured arm, and proceeded to make an issue whether plaintiff or the doctor had written the receipt for pay for the service. This constituted an attack upon the character of the plaintiff for truth, as well as for honesty, and the evidence tended to impeach his character for truth. In such case it was competent to allow supporting testimony of good chara be a copy of the depositions of a witness, is not admissible to prove that the witness was mistaken in saying that he never iied in said cause. It could be shown only by the production of tho depositions, proof of his handwriting thereto, or by some one who knew the facts.* A deposition taken in another case cannot be used to impeach the witness without first laying a proper predicir in case of former verbal statements the witness' attention mu>t be directed to the alleged contradictory statements, so that he may then explain if he can.' Where testimony of a witness varies on a material point from his testimony on a former trial, and the witness denies the testimony imputed to him on such former trial, the court may, in its discre- tion, admit a witness to testify that such testimony was given on the former trial, although such impeaching witness is present in court and not put under the rule with the other witnesses. 1 27. Testimony admitted for a special purpose. T'Mimony admissible for any purpose or against any party to the suit should not be excluded, but admitted with the proper hm- v. M.-Anulty. 77 T. 488 (14 S. W. Rep. 138). Iley-Ooodfellow Shoe Co. v. Liberty Ins. Co., 28 S. W. Rep. 1027. M.I fcmaat v. Roberts, 80 T. 316 (1.1 s. \v. K,-j.. rWO, 1054)t Smith v. Tra.l.-rs' Nat. Hank. 74 T. 4.YT ,1'J S. W. Rep. 118X man v. Smith. 55 T 6 Alexander v. Lewis. 47 T. 4*:.': Weir v. M< Sup. 20. Q., C. & S. F. I.'N ' ' Bui : Mm, 26 a W. Rep. 1107. See Jarvis Conkling Truxt i ... v. Uarr.-ll. 20 S. W. Rep. 447; G., 1L & A. Ry. Co. r. Porfert, 1 Ap|.. 716 (20 S. W. Rep. 870). n 498 INTRODUCTION OF EVIDENCE. [ 528. itation ; but the application of this rule should not be used as a pre- text for getting before the jury evidence of a damaging character to a party objecting and having a right to object to its admission, while such evidence can serve no useful purpose with reference to any issue with another party against whom it is ostensibly offered, and who is precluded from making the objection thereto. Where such evidence by deposition has been admitted ostensibly for one purpose only, and by the charge of the court limited to such pur- pose, it is error to permit counsel for the party offering it, in his argument to the jury, over objection of the other party (plaintiff), to read parts of it and comment at length thereon as against evi- dence offered by plaintiff to support another and different issue. 1 Admissible evidence will not be excluded for the reason that it prejudices the jury against one of the parties. When collateral disclosures can be excluded, the party threatened by them must act in his own behalf; but when they cannot be separated from the pertinent evidence, the prejudiced party must abide the con- sequences. 2 Where the trial is without a jury and testimony is admitted which is only relevant upon one of several issues, the presumption will be entertained that the court only gave to the testimony its proper consideration so far as it was competent. 3 If the trial should be before a jury the purpose of the testimony should be restricted by the charge. 4 When evidence is offered which is not admissible for the general purposes of the trial, and exception is made to it on such ground, if the exception be overruled on the ground that the tes- timony is admissible for a special purpose and to a limited extent, the record should show that it was admitted only to the extent and for the purpose for which it was legitimately admissible. 5 528. Evidence improperly admitted may be withdrawn. An error in admitting evidence may be cured by a direction to the jury not to consider such evidence. It is not to be presumed 1 Cook v. Land Co., 6 Civ. App. 326 (25 S. W. Eep. 1034). 2 Shumard v. Johnson, 66 T. 70 (17 S. W. Rep. 398). 3 Jackson v. Mumford, 74 T. 104 (11 S. W. Rep. 1061); Creager v. Douglass, 77 T. 484 (14 S. W. Rep. 150). * Jackson v. Mumford, 74 T. 104 (11 S. W. Rep. 1061). 5 Batte v. Chandler, 53 T.. 613. Where the court permits a paper to be read to the jury, subject to a charge to be given, and none is given, the paper is in evi- dence, and an assignment of error in refusing to admit it is not well taken. In- ternational B. & L. Ass'n v. Fortassain, 23 S. W. Rep. 496. An impeaching witness testified to declarations of an employee of defendant damaging to the cause of defendant. It was proper for the court to give a re- quested instruction that such testimony should be considered only as affecting the testimony of the witness attacked. W. U. TeL Co. v. Wingate, 6 Civ. App. 894 (25 S. W. Rep. 439). 528.] INTRODUCTION OF EVIDENCE. 499 that the jury will disregard such express injunction of the court. 1 Objections to evidence ought to be made when the evidence is offered; and unless some good reason is given why this was not done, the denial of a motion to exclude all the evidence after it is all in will not be revised. 2 After testimony has been admitted without objection, a motion to exclude it should be left more to the discretion of the judge than when objections are made. 3 The rule is that when illegal evidence, objected to, is from any cause heard by the jury, the court should, by written instruction, distinctly call their attention to it and expressly direct them to disregard it. 4 The practice of admitting improper evidence and then excluding it, or with a view to limiting its effect, is not commended; but whether such. a practice will require a reversal must depend on the facts of each particular case. If it occurs in a case where the judg- ment is rendered on conflicting evidence, and a contrary judg 1 would have been sustained on appeal, and the evidence withdrawn was calculated to secure the verdict and judgment rendered, the judgment will be reversed if it appear to be against a slight pre- ponderance of legal evidence, or it' the damages awarded be so large as to raise a doubt of the fairness of the jury. 5 To authorize a re- versal it must be apparent that the excluded evidence affects tho verdict. 6 Testimony of a witness given on direct examination may be ob- jected to and excluded when its inadmissibility is discovered and shown on cross-examination; 7 as where it develops that his knowl- edge of the matter is hearsay. 8 Where the judge has excluded tin- evidence on objection made, he is not required to refer to the mat- ter in the charge unless requested. 9 1 Pullman Palace Car Co. v. Booth, 28 S. W. Rep. 719; Waters-Pierce Oil C duty of the judge to withdraw it from the jury. Willis v. Whitsitt. 67 T. 78 (4 & W. Rep. 258): Maverick v. Mftury, 79 T. 435 (15 a W. Rep. 686). Brown v. Bacon, 63 T. 595; Rollins v. O'Farrell, 77 T. 90 (18 a W. Rep. 1021); Russell v. Nail, 79 T. 664 (15 a W. Rep. 633). 500 INTRODUCTION OF EVIDENCE* [ 529, 530. 629. Amount of cumulative evidence may be limited. There must exist in every court the power to determine when evidence purely cumulative shall cease, and the exercise of such a discretion is no ground for reversal of a judgment unless it is made to appear that the discretion was abused. The power is one, how- ever, to be exercised with the utmost care; and in a case in which there is but little or no controversy as to a given fact, such evidence might properly be cut oif at a point where it would be improper to do so when the evidence is greatly conflicting. In a case in which a fact to be established is not sworn to directly by witnesses, but must be established by proof .of other facts from which the main fact is to be inferred, then evidence of different facts from which the inference may be drawn is not strictly cumulative. 1 The rule applies whether the evidence is offered in chief or in rebuttal; 2 or for the purpose of impeaching a witness. 3 When the witnesses are numerous and a vast accumulation of tes- timony is to be expected, and where the rule has been announced in advance that merely cumulative evidence will not be admitted in rebuttal, it will not be regarded error to adhere to the rule unless it clearly appear that injury was caused. 4 530. Placing witnesses under the rule. It is the right of a party to have witnesses placed under the rule in civil as well as in criminal cases. It is said that the rule is well recognized both in England and in America ; that the rule as laid down by Greenleaf and Phillips 5 seems to be intended as a rule in fact as well as in name ; a definite regulation prescribed by the law for the conduct of trials, uniform and universal, to which all parties litigant are entitled, subject to such judicious regulations confided to the judge's discretion as right and justice exact. 6 In a later case it is held that the enforcement of the rule is within the sound discretion of the court, especially where it is invoked by a part only of the defendants. 7 1 G., H. & S. A. Ry. Co. v. Matula, 79 T. 577. Cumulative evidence is additional evidence of the same kind to the same point. Although evidence tends to prove the same proposition as that previously introduced, yet it is not cumulative if it is of a different character and merely tends to prove the former proposition by proof of a new and distinct fact. H. & T. C. By. Co. v. Forsyth, 49 T. 171. 2 Delgado v. Gonzales,'28 S. W. Rep. 459. 3 Bowles v. Glasgow, 2 U. C. 714. Snow v. Starr, 75 T. 411 (12 S. W. Rep. 673). 8 1 Greenl. Ev., 432; 2 Phillips on Ev. 395. 6 Watts v. Holland. 56 T. 54. ~ Willis v. Nichols, 5 Civ. App. 154 (23 S. W. Rep. 1025); Tex. & Pac. Ry. Co. v. Pearl, 3 App. C. C., g 6; Tex. Expr. Co. v. Dupree, 2 App. C. C., 321. And see Cavasos v. Gonzales, 33 T. 133. In a damage suit against a railroad company, a conductor who was in charge of the train was placed under the rule with other witnesses. It not appearing that he was in attendance in any other capacity than as a witness, the company had no just cause of complaint. G., C. & S. F. Ry. Co. v. Bruce, 24 S. W. Rep. 927. CHAPTER XXXII. DEMURRER TO EVIDENCE. 531. When and how taken. 532. Demurrer admits what. S 531. When and how taken. If it be supposed that the facts proved do not support the issue, this being merely a question of law, the defendant may withdraw it from the consideration of the jury and have it decided by the court, by demurring to the evidence. 1 The opposite partv is com- pelled to join in the demurrer when the evidence offered is in writ- ing. 1 But when the evidence is by parol, and of a loose and indeterminate character, and which may be urged with more or less effect to a jury, and especially when the evidence is circum- stantial and is meant to conduce to the proof of facts beyond the circumstances proved, the party is not obliged to join in the de- murrer unless the demurrant will admit every fact and conclusion which the evidence conduces to prove. If the party joins in de- murrer, neglecting to insist on these admissions, the court will pro- ceed and draw the same inferences from the evidence which the jury might have drawn.* When a defendant demurs to the evidence and the plaintiff joins in the demurrer, the case as to the facts and the right of the plaint- iff to recover is withdrawn from the jury. l'j>>n the court decid- ing for the plaintiff, if the damages are unliquidated the que- of amount must be submitted to a jury. After a demurrer of de- fendant to the evidence has been overruled, he cannot insist that the question of right to recover be submitted to the jury. 4 Towner v. Sayre, 4 T. 28; Mitchell v. Mitchell. 4 T. 283; Hatch v. Garea. 7 T. 60. Although it would be more appropriate that a demurr lonce should be in writing, there is no rule of practice absolutely r-ijuirin^ it to be so made, and it is discretionary with tin-court to require it in writing, or to r- it in paroL Hughes v. OirMy. -''> T. -' J Correct practice requires that tin- plaintiff shouM join in a .l.-murr.-r evidence hy th.- defendant : and if ho fails to do so, the .-ourt should require it of him. But even if th- record on appeal does not show that there was a j- in the demurrer, that will not In? cause for a reversal of the judgment rendered on it Hughes v. < 'hri-ty. .'<; T. ->:\l. * Booth v. Cotton. 1U T G., H. & & A. Ry. Ca v. TVmpMon. 87 T. 42 (25 & \\ \ 26 & W. Rep. 1066). The proper practice is stated 1,\ the supreme court as follows: "When a demurrer to evidence has been presented ami joined in l.y the opposite party. 502 DEMURRER TO EVIDENCE. [ 532. 532. Demurrer admits what. A demurrer to evidence is a demurrer to the competency of the evidence, and admits it to be sufficient if competent. All, therefore, that a judge can decide upon a demurrer to evidence is whether any competent evidence was given or not, and when there was, then it is error to sustain the demurrer. 1 A fact essential to be estab- lished in order to make out the plaintiff's case, and to entitle him to recover, is not admitted when there is no testimony tending in any degree to prove it. 2 Ordinarily, it is said, the office of a de- murrer to evidence is to admit every fact and conclusion which the evidence conduces to prove. 3 the court may submit the case to the jury to ascertain the damages before de- ciding upon the demurrer, and hold the verdict subject to decision on the de- murrer. Or if the demurrer be decided before the jury then impaneled has been discharged, the court may submit the question of damages to the jury that heard the evidence. Or the court may, upon presentation of the demurrer, dis- charge the jury, and in case it be overruled impanel a new jury to assess the damages. 2 Tidd's Prac. 866; Insurance Co. v. Lewis, 1 So. Rep. 863; Obaugh v. Finn, 4 Ark. 110; Young v. Foster, 7 Port. (Ala.) 420; Boyd v. Gilchrist, 15 Ala. 856; Humphreys v. West, 3 Rand. 516. It is the better practice, we think, to submit the question of damages to the jury that has heard the evidence, either before or after decision on the demurrer, by which delay and cost would be saved for the parties to the action. Whether it be submitted before or after the decision upon the demurrer cannot be of importance nor work injury to either party. It was not error to submit the issue as to the amount of damages to the jury then impaneled, after the demurrer had been overruled." In trespass to try title, where plaintiff demurs to evidence offered by defend- ant to support his plea of limitation, the court must decide the matter wholly on the evidence demurred to; and if there is evidence tending to establish the plea, the finding must be for defendant. Thiers v. Holmes, 9 S. W. Rep. 191. A motion to exclude evidence to sustain a claim for exemplary damages, after the party offering it has closed his case, on the ground that the evidence is not suffi- cient to sustain the plea, is in the nature of a demurrer to evidence, but is an irregular proceeding, and it is not error to overrule such a motion. Jacobs v. Crum, 62 T. 401. 1 Harwood v. Blythe, 32 T. 800. 2 Bradbury v. Reed, 23 T. 258. a Pitt v. Texas Storage Co., 4 App. C. C., 295; Dangerfield v. Paschal, 11 T. 679. CHAPTER XXXIII. BILL OF EXCEPTIONS. 533. Exceptions to rulings, when taken. 534 Requisites of bill. writing in the form of a bill of exceptions after the jury have retired from the bar. Jones v. Thurmond, 5 T. 318; Houston v. Jones, 4 T. 170; Price v. Lauve. : : Firebaugh v. Ward. 51 T. 409. v. Townsend, 1 T. 414. 3 Howard v. North, 5 T. 290; R. S. 1864; Rule 53. iQwftM v. Railway Co., 67 T. 679 (4 a W. Rep. 598). Complaint was made in tins rase that the judge addressed certain language to the jury when they re- ported th.-y could not agree. ption was taken at tin- time. 1-ut tin-re n the record a statement of the fact that the language complained of was used, and tm-l-T tin- circumstances set forth in the ami*:' This was held insufficient. The court say: of a mil of -\ to show the proceedings of the court which do not otherwise appear of record; and the mode of its authentication being provided by law, the mere tat- ot the judge, ult hough written by him and nigned officially, cannot be received as its substitute. 504 BILL OF EXCEPTIONS. [ 534. and his objections, when urged for the first time in an appellate- court, will be heard only to prevent an obvious violation of the principles of law and justice. 1 Exceptions which go to the merits- and foundation of the action may be taken at any time. 2 "Want of jurisdiction may be called to the attention of the appellate court in a motion for a rehearing. 3 When no exceptions are taken to the conclusions of law, or to the judgment, the only inquiry on appeal will be as to whether the pleadings authorized the judgment. 4 But when exceptions are taken ' to the judgment, the findings of the trial judge may be attacked although not excepted to. 5 534. Requisites of bill; ruling, with circumstances and evidence stated. No particular form of words is required in a bill of exceptions, but the objection to the ruling or action of the court must be stated with such circumstances, or so much of the evidence, as may be necessary to explain it, and no more, and the whole as briefly as possible. 6 "Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it will not be necessary to set out such evidence in the bill of exceptions, but it will be suf- 1 Crosby v. Huston, 1 T. 203. 2 Fowler v. Stonum, 11 T. 478; Coburne v. Poe, 40 T. 410; Crook v. McGreal, 3 T. 487. Ellis v. State, 3 Civ. App. 170 (21 S. W. Rep. 66; 24 S. W. Rep. 660). This was a proceeding under the statute of escheats. There was a defect in the citation as published, which was noticed by the court on a motion for a rehearing, 'and. the judgment was reversed. 4 Continental Ins. Co. v. Milliken, 64 T. 46. Voigt v. Markle, 71 T. 78 (8 S. W. Rep. 623). 6 R. S. 1361. He who complains of an erroneous ruling must preserve such evidence of it in the record as will leave no doubt about the matter in the ap- pellate court. Bailey v. Trammell, 27 T. 317. The bill should show what the party proposed to do, and what the judge refused to permit him to do. Dun- ham v. Forbes, 25 T. 23; Moss v. Cameron, 66 T. 412 (1 S. W. Rep. 177). It must show the particular ruling complained of. Anderson v. Anderson. 23 T. 639. It will not be regarded if it deals in general expressions, without indicating the point decided. Stephenson v. Bowerman, 27 T. 18. It should state the facts so as to exclude any reasonable conclusions of fact than those upon which the de- cision could be maintained. Sadler v. Anderson, 17 T. 245. When objections are taken to rulings which do not ordinarily form part of the record, exceptions must b taken and presented by a bill of exceptions, or by the statement of facts, and all the facts and circumstances pertinent to the exceptions and necessary to enable the appellate court to understand the question decided must be set forth or shown by the record. 44 T. 406. The rulings of the court objected to and the grounds of the objection must be stated. But it is said that a strict compliance with rules of practice may sometimes be dispensed with in case of strong equities. Simonton v. Forrester, 35 T. 584. It seems that in taking a bill of exceptions to the decision of a motion which involves matters of fact, the matters of fact should be stated, or it should be- stated that no evidence was offered respecting the same; otherwise the presump- 535.] BILL OF EXCEPTIONS. ;.n.> ficient to refer to the same as it appears in the statement of facts. 1 The bill must state enough of the evidence or facts proved in the case to make intelligible the ruling of the court excepted to in ref- erence to the issue made by the pleading Clerks, in milking out the transcript, are prohibited from copy- ing as a part of the bill of exceptions any instrument in writing,. or document not originally inserted therein, but merely referred to and directed to be copied from some other paper in the case. 1 The dork is not permitted to copy into the blanks left in a bill of ex- ceptions the indorsements on a note sued on. 4 635. No exceptions or bill required, when. The ruling of the court in the giving, refusing or qualifying of instructions to the jury is regarded as excepted to in all cases.* Where the ruling or other action of the court appears otherwise of tion will be that such evidence was offered, and in the absence thereof the de- cision cannot be revised Ponton v. Bellows, 13 T. 254. The failure to state the grounds of objection to the admission of evidence may- have an important bearing in determining the correctness of the court's ruling in any particular case, but is not a reason for striking out the bill Heffron v, Pollard, 78 T. 96 (11 S. W. Rep. 165). 1 R S. 1362. Where there is a conflict between the bill of exceptions and the- statement of facts, the latter must prevail G., H. & S. A, Ry. Co. v. P&r> Civ. App. 150. But it is also held that where the testimony set out in a state- ment of facts conflicts with the recitals in a bill of exceptions, both signed and agreed upon by the attorneys and approved by the judge, that feature of the record should prevail which tends to support the judgment. Byers v. Wallace. 25 S. W. Rep. 104a And see, also, Ramsey v. Hurley, 72 T. 194 (12 a W. Rep. 56). When evidence incorporated in a statement of facts does not appear th to have been objected to, but the bill of exceptions shows that an exception was reserved, they may be taken together as constituting the bill of exceptions on the particular matters. Heffron v. Pollard, 73 T. 96 <11 S. W. Rep. 165). When* counsel do not agree upon a statement of facts, and the statement is prepared by the judge, and it is inconsistent with a bill of exceptions touching n>a ted to, the bill of exceptions will be looked to; other \vi-e tin- court might deprive a party of a bill of exceptions properly taken and signed. McClelland v. Fallen, 74 T. 236 (12 S. W. Rep. 60). 2 Rule 59. Where an instrument answers the purpose of a statement of fact* and a bill of exceptions to the exclusion of evidence, an exception th. r. M tained will not be barred from review because not preserved in a separate bill. Int. Hldg. & L. Ass'n v. Hardy, 26 S. W. Rep Rule 86. Spark-, v Texas Loan Agency, 19 S. W. Rep. 258. S R a 1318, 1320. 1863. The charges given und refu-.. ,i l,v the ,-,,.irt -houl.l not be made a part of the bill of exceptions. Rule :>4. No bill of exoej need be taken to a charge of the court in order to -,. .-nre the action <>f the ap p -llatp court thereon regarding any errors it may contain. ^ *'y the court, and the SJH-, ial in- structions asked by counsel, whether ^iven or refused, are tiled with tli' an 1 In-come a part of the record, and the action of the court will U> r. without the necessity of a bill of exceptions. R. S. 131H. 1320; Landes ;,< '0 BILL OF EXCEPTIONS. [ 536. record, no bill of exceptions is necessary to reserve an exception thereto. 1 A rule provides that there shall be no bills of exception taken to the judgments of the court rendered upon those matters which at common law constitute the record proper in the case, as the citation, petition, answer, and their supplements and amend- ments, and motions for new trial, or in arrest of judgment, and final judgment. 2 636. Exceptions required in certain cases. Exceptions to pleadings not disposed of before proceeding to a trial of the facts are deemed waived, and constitute no part of the final record, unless some question be raised upon the action of the court in reference to them, and they are presented in a bill of ex- ceptions. 3 The rulings of the court upon applications for continuance and for change of venue, and other incidental motions, 4 and upon the berger, 2 App. C. C., 135; Mo. Pac. Ry. Co. v. Martin, 2 App. C. C., 656. The <;ourt may give a verbal charge, and in such case exceptions must be saved by bill of exceptions. G., C. & S. F. Ry. Co. v. Holt. 1 App. C. C., 835. It must be hown by the record that a charge asked was given or refused. A statement of counsel found in the record on motion for new trial is not sufficient (Hodde v. Susan, 63 T. 308); the file mark of the clerk indicates nothing with reference to the matter. Michael v. Yoakum, 3 S. W. Rep. 1076. !R. S. 1364. Questions to be revised, if not otherwise apparent, must be presented by a bill of exceptions, or arise out of a statement of facts. None others will be considered. Secrest v. Townsend, 1 T. 414. When there is neither a statement of facts, bill of exceptions, or any error disclosed by the record, it will be presumed that the verdict and judgment were rendered upon sufficient legal testimony. Jones v. Black, 1 T. 527: Kirkman v. Snively, 2 T. 447; Duf- field v. Bodine, 2 T. 292. An error apparent on the record may be revised and corrected though not presented by a bill of exceptions or statement of facts. Crook v. McGreal, 3 T. 487. 2 Rule 53. 3 Rule 26; Hooker v. Williamson, 60 T. 524; Huddleston v. Kempner, 1 Civ. App. 211 (21 S. W. Rep. 946); A., T. & S. F. Ry. Co. v. Emerson, 24 S. W. Rep. 1105. There can be no review on appeal of error assigned in overruling a plea where the record shows no exception taken to the ruling. Equitable Mortg. Co. v. Thorn, 26 S. W. Rep. 276. On an assignment of error in the overruling of ex- ceptions to the petition, the record must show some action thereon by the trial court. Hobson v. Schoelkopf, 27 S. W. Rep. 283. Where a petition is good on general demurrer, specific objections set forth in a bill of exceptions cannot, on appeal, be made to answer the purpose of special exceptions not urged in the trial court. St. L., A. & T. Ry. Co. v. Turner, 1 Civ. App. 625 (20 S. W. Rep. 1008). The record not showing that demurrers insisted upon on appeal were called to the attention of the court, it will be held that they were waived. Chambers v. Ker, 6 Civ. App. 373 (24 S. W. Rep. 1118). Error in sustaining a plea of privilege must be saved by exception. Pfeuffer v. Burns, 24 S. W. Rep. 36. 4 Rules 55, 70. Error in refusing a continuance must be shown by bill of ex- ceptions. Tex. & Pac. Ry. Co. v. McAllister, 59 T. 349; G., C. & S. F. Ry. Co. v. Carter, 25 S. W. Rep. 1023; G., C. & S. F. Ry. Co. v. Cannon, 29 S. W. Rep. 689; 536.] BILL OF EXCEPTIONS. .'. "7 admission or rejection of evidence, and upon other proceedings in the case not embraced in rules 53 and 54,' when sought to be com- plained of as erroneous, must be presented in a bill of exceptions >1 by the judge and tiled by the clerk, or otherwise made ac- o.rdini: to the statute, and they will thereby become a part of the record of the cause, and not otherwise. 2 Kvery ruling of the trial <-ourt made a Around of error should plainly appear in the trun- r. and nothing be left to inference. All rulings save those par- ticularly excepted by the above rule, upon incidental motions, as a refusal by the trial judge to give his conclusions of law and fa< t, must be made the subject of a bill of exceptions, or they will be considered as waived. 3 The court will presume that the bill of exceptions gives the objec- - and rulings as they were made. And where the objection on which evidence was excluded was not sufficient, the court will not - ime that there were other valid objections. 4 Morris v. Files, 40 T. 374; Bruckrailler v. Wolf, 37 T. 342. The affidavit on which the motion fora continuance was based should ordinarily U- s-t nut in the bill of exceptions (Bruckmiller v. Wolf. 37 T. :U - ,'i: hut it should not be incorporated into the transcript, especially when no proper exception has been tak- i: Its proper place is in the bill. Morris v. Files, 40 T. 374. Tl- nirt- rk-tly t<> the rule, and require exceptions to be taken to the ruling of the court and presented in a proper bill. Tex. & Pac, Ry. Co. v. Mallon, 85 T. 1 1 '>: Tex. & Pac, o. v. Dunn, 17 S. W. Rep. 822; Strain v. Greer, 19 a W. Rep. 513; Waites v. Osborne, 66 T. 648 (2 & W. Rep. 665). That the order of the <--urt overruling the ; also error in overruling a motion to reform a judgment Adams v. Duggan, 1 App. C. C.. ;; 1268. It must be shown by a bill of exceptions what was done where error is claimed in the refusal of the court to charge upon an inquiry made by the jury: an aflV- filed with a motion for a new trial is not sufficient. Taylor v. I>.f & W. Rep. f'4J. Krror in recalling a witness after the jur\ saved by bill of exceptions i Martin Brown Co. v. Wainscott. 66 T. 181. 1 a W. Rep. 264); or in refusing to postpone a cause (Moss v. Katz, * T. 411. ? s. \v. Rep. 764); or in permitting a witness to testify as an expert without a showing that he was qualified. In su.-h a < -as*' th- 1, ill should show that an examination was made touchim: his qualitu-ations, or that none was made. Hardin v. Spark*, 70 T. 429 (7 a W. Rep. 769>. In the absence of proper exceptions or statement of facts, unless the failure to except be waived or not insisted upon, the only inquiry will U- whether the pleadings justify the judgment. Crawford v. Mobility. 11 s. \V. IUp, 1091 Oppenheimer v. Robinson, 87 T. 174 (27 a W. Rep. 93). 508 BILL OF EXCEPTIONS. [ 537* A motion for a new trial cannot take the place of a bill of excep- tions. 1 637. Exceptions to admission or exclusion of evidence. Rulings of the court on the admission or rejection of evidence must be presented by a bill of exceptions. 2 Exceptions to evidence admitted over objections made to it on the trial may be embraced in the statement of facts, in connection with the evidence objected to, provided the statement of facts be presented to the judge within the time allowed for presenting bills of exceptions, and be filed in term time. 3 1 Ballew v. Casey, 9 S. W. Rep. 189. 2 Rule 55; Yeiser v. Burdett, 29 S. W. Rep. 912. The ruling of the court must be excepted to at the time. Collins v. Bank, 75 T. 254 (11 S. W. Rep. 1053); First Nat Bank of Greenville v. Pennington, 75 T. 272 (12 S. W. Rep. 1114) \ Watson v. Blymer Mfg. Co., 66 T. 558 (2 S. W. Rep. 353): Ford v. Cowan, 64 T. 129: Mo Faddin v. Prater, 3 S. W. Rep. 306; Ballew v. Casey, 9 S. W. Rep. 189; Still v. Focke, 66 T. 715 (2 S. W. Rep. 59); Tex. & Pac. Ry. Co. v. Barren, 4 Civ. App. 546 (23 S. W. Rep. 537): G.. H. & S. A. Ry. Co. v. Herring, 24 S. W. Rep. 939; G., H. & S. A. Ry. Co. v. McMonigal, 25 S. W. Rep. 341. 3 Rule 56. Though exceptions to the action of the court can be as well saved in the statement of facts as in the bill of exceptions, yet when a party resorts to this method of making a record of his objections to the rulings of the court below, he must follow the rules prescribed for bills of exceptions as to time of filing. Howard v. Mayor of Houston, 59 T. 76; Lockett v. Schurenberg, 60 T. 610. A bill of exceptions to the exclusion of evidence should show that the evi- dence was excluded, and upon what objection, and that exception was taken to its exclusion. Fox v. Brady, 1 Civ. App. 590 (20 S. W. Rep. 1024). It should show the nature of the evidence admitted or excluded over objection; it must show what the testimony was or would have been, or what was proposed to be proved by the witness. R. S. 1361 ; G., C. & S. F. Ry. Co. v. Day, 22 S. W. Rep. 772; Neal v. Minor, 26 S. W. Rep. 882; Brothers v. Mundell, 60 T. 240; Bee- man v. Jester, 62 T. 431 ; Milliken v. Smoot, 64 T. 171 ; Moss v. Cameron, 66 T. 412 (1 S. W. Rep. 177): Jacoby v. Brigman, 7 S. W. Rep. 366; McKay v. Overton. 65 T. 82; Heirs of Reddin v. Smith, 65 T. 115; Beeks v. Odum, 70 T. 183 (7 S. W. Rep. 702); Sabine & E. T. Ry. Co. v. Johnson, 7 S. W. Rep. 378. To entitle one to a revision of the ruling of the court below on the admission or rejection of evidence, the matter must be so presented by bill of exceptions, filed in proper time, as to enable the court to fully understand and know all the facts on which the correctness or error of the ruling depends. Whitaker v. Gee, 61 T. 217. When tke record shows no statement of facts from which the materiality of excluded testimony can be determined, and the bill of exceptions based on such exclusion fails to state enough of the facts established in the case to make in- telligible the ruling of the court in reference to the issue made by the pleadings. the exception will be disregarded on appeal. Stark v. Ellis, 69 T. 543 (7 S. W. Rep. 76). If the statement of facts contains ail the evidence necessary to explain the bill of exceptions, it may be referred to as it appears therein without the necessity of setting it out in the bill of exceptions. R. S. 1362. When neither the bill of exceptions nor statement of facts shows what an- swar was given to a question claimed to have been improper, the point will not be considered on appeal. Haney v. Clark, 65 T. 93. If complaint be made that a question was improperly excluded, the bill ought to show what the answer of the IS.] BILL ..h ;,,,; The court, when deonu-d necessary, may call upon tin; \ fering evidence to explain the object of its admission, ami also upon the party excepting the reason of his exceptions, \vhich, when done in either or both cases, may form a part of the bill Objections made to evidence must be stated in the bill of e\<-"| taken to its admission or exclusion. 2 A memorandum of the point ruled on must ho made hy the judge when he decides an exception t> the admission or exclusion of evidence, if a bill of exceptions is not then prepared and signed, which ordinarily should U- done. 1 3. To be presented to judge within a certain time. It is the duty of a party taking a bill of exceptions to reduce it riting, and present it to the judge for his allowance and signa- ture during the term, and within ten days after the conclusion of the trial.* Where exception to a ruling is necessary to authorize a witness would have been, or at least what it would have tended to prove. Mo- Auley v. Harris 71 T. 631 (9 S. W. Rep. 679); G., C. & S. F. Ry. Co. v. I>K ;.. I (14 a W. Rep. 611); Cheek v. Herndon, 82 T. 146 (17 a W. Rep. 76* phenson v. Stephenson, 6 Civ. App. 529 (25 S. W. Rep. 649); W. U. Tel. Co. v. Hill. 26 S. W. R'i>. 'JV, 1 . If it can be seen that the question was pro|>er. the action of the court in not requiring the witness to answer will be reviewed, although the bill of exceptions does not show what the answer would have been. Brown \. Wilson. 20 S. W. Rep. 530. Where the bill of exceptions does not shou inony upon which the action of the court in overruling a special plea was baaed, the ruling will not be revised. Cadwallader v. Lovece, 29 S. W. Rep. 660. JRu! 2 Rule 58. The bill must show the objection made to the admission or > sion of evidence. Every presumption is in favor of the correctness of the ruling of the trial court. N. Y. & Tex. Steamship Co. v. Boating As- 490 (21 S. W. Rep. 1007); Calhoun v. Quinn, 21 S. W. Rep. 705; G. f C. & S. A land. ->:{ S. W. Rep. 421; Davis v. Wheeler. 23 a W. Tex. & P. Coal Co. v. Lawson, 31 S. \V. Rep. 843; EL & T. C. Ry. Co. v. Williams, 31 a W. Rep. 556; Underwood v. Coolgrove, 59 T. 164; Endick v. Endick, 61 T. 559; G.. H. & a A, Ry. Co. v. Gage, 63 T. 568; Fox v. Brady, 1 Civ. App. 590 (30 a W. Rep. It is held that both the bill of exceptions and the brief of appellant should show the objection made and sustained. Johnson v. Crawl, 55 T. ~>?l. Where the objection stated is not suHi.-i.-nt. the court will not presum- there were other objections that might have been made. ()|>|.-nh.Mtner v. Rob- inson, H7 T. 174 rJ7 S. \V. Rep. 95). The appellate court will not resort to con- jecture to determine the grounds on which objection to exrlud. was made. If the objection was a general one. the bill of exceptions annul show the grounds on which the judge based his ruling. Krankl. .in, 63 Hut it is said that where appellant complains of the -\ dence, but fails to show the objections made, the appellate court will presume that the objections were meritorious, although mi its fa<-- the in- -non appears unobjectionable. Higgar v. 1. S. W. Rep. 707; Neal v. Minor. 36 a W. \Vhrrn no objection is >tated, no ground will be entertained in revis- ing the trial court, unless it relate to tli y and compel- . evi- dence offered. Stiles v. Giddens, 21 T. 78-3; Willis v. Dona 0ft If the object ii .n was general, and for no cause stated, the bill should so specify. 1 v. Ferryman, 59 T. 1U4. Rule 60. * R. a 1365. 510 BILL OF EXCEPTIONS. [ 539^ party to assign error upon it, exception, must be taken and the point saved at the time the ruling complained of is made. By consent of the court the bill of exceptions may be drawn and signed at any time during the term. It is not enough to object to or oppose a ruling when it is made, but the party must manifest his objection so as to notify the court of his desire that it should become a mat- ter of record by bill of exception. 1 The statute is construed to mean that the presentation may b& made within ten days after the date of the entry of an order over- ruling a motion for a new trial. In contemplation of the statute,. the overruling a motion for a new trial is the conclusion of the trial. 2 Bills of exception which have not been presented to the district judge for signature within ten days after motion for a new trial has been refused will on motion be stricken from the record in the appellate court. But if the statement of facts containing^ bills of exception to the admission of proper evidence was signed and approved during the term and within ten days after the end of the trial, the bills of exception would be considered. It would be otherwise if such statement of facts was presented to the judge more than ten days after the conclusion of the trial. 3 Bills of exceptions must be approved by the judge ; * otherwise" they, with the assignments of error, will be ignored. 5 A bill of ex- ceptions to the rulings of the master must be approved by the court ; approval by the master alone is not sufficient. 6 639. To be submitted to adverse party, and filed during the term. It is the duty of the judge to submit the bill of exceptions to the- adverse party or his counsel, if in attendance on the court, and if 1 Price v. Lauve, 49 T. 74. 2 S. & E. T. Ry. Co. v. Joachirni, 58 T. 452; Ellis v. Ellis, 5 Civ. App. 46 (23 S. W. Rep. 996); Int Bldg. & L. Ass'n v. Hardy, 26 S. W. Rep. 523; Saul v. Frame, 5 Civ. App. 596 (22 S. W. Rep. 984). 8 Blum v. Shram, 58 T. 524; Saul v. Frame, 3 Civ. App. 596 (22 S. "W. Rep. 984), Where a statement of facts which contained bills of exception was filed more than ten days after the motion for a new trial was granted, though before the close of the term of court, it was held that the record being silent as to when the bills of exception were presented to the trial judge, the presumption would be indulged that they were presented within ten days after the trial was con- cluded. Heffron v. Pollard, 73 T. 96 (11 S. W. Rep. 165). A bill of exceptions having been taken at the time of the ruling, and coun- sel excepting having left the county before the bill was signed and filed, it was competent for the trial judge, when requested by telegram from the absent counsel, to prepare, certify and file the bill of exceptions. Doll v. Mundine, 84 T. 315 (19 S. W. Rep. 394). 4 Durham v. Atwell, 27 S. W. Rep. 316. 5 Clitus v. Langford, 24 S. W. Rep. 325. 6 Ballard v. McMillan, 5 Civ. App. 679 (25 S. W. Rep. 327). A bill which does not appear to have been filed among the papers of the case nor called to the attention of the court will not be considered. Spencer v. James, 31 S. W. Rep. 540. 540.] BILL OF EXCEPTIONS. .', 1 I the same is found to be correct, it must be signed bv the judge without delay and tild with the clerk during the term. 1 A bill of exceptions filed after the close of the term will not be considered.* The rule applies where the bill of exceptions is included in the statement of facts;* an order of court will not make valid a tiling of the statement of facts after the term. 4 The requirement of the statute cannot be waived. 5 It is the duty of a party bringing a cause to the appellate court to see to its proper preparation for an appeal ; and where the rec- ,l does not disclose that it was through the fault of the trial judge or of the opposite party that appellant's bills of exception were not filed within the time prescribed by la\v, the presumption as to neg- ligence is against the appellant, and he cannot complain if his bills are not legally before the appellate court.' 540. Procedure when bill found incorrect. Should the judge, when the bill is presented to him, find it to be incorrect, he must suggest to the party or his counsel who dn such corrections as he may deem necessary, and if they are agreed to he must make such corrections and sign and tile the bill during the term. Should the party not agree to such corrections, the judge must return the bill of exceptions to him with his refusal indorsed thereon, and must make out and sign and file with the clerk such a bill of exceptions as will in his opinion present the ruling of the court in that behalf as it actually occurred. 7 1 R. a 1366. It is the duty of the judge, and not the appellant, to submit to opposing counsel for their inspection, before signing them, bills of exception prepared and tendered by appellant's counsel, and it would seem that the ap- pellant ought not to suffer on account of the neglect of the judge; but no opin- ion is expressed as to whether a failure to perform this duty would in any case' itute a sufficient reason for wholly disregarding the l>ills of exception, nor whether the failure could be brought to the notice of the ap{* ll;it- court by :itli-l;ivits tiled after appeal Franklin v. Tiernan. 62 T. 92. *Pennington v. McQueen. 3 S. W. Rep. 815; Willis v. Dunne, 61 T. 588; Lock- -tt v. Schurenberg, 60 T. 610: Schaub v. Dallas Brewing Co., 80 T. 634 (16 a W. Rep. 429); Firebaugh v. Ward, 51 T. 409; Campbell v. Cook, 24 S. W. Rej> M;n-liall v. Spillane, 7 Civ. App. 532 (11 S. W. Rep. 162); Trezevant v. Rains, 85 & W. Rep. 1092; Farrar v. Bates. 55 T. 19& G., C. & S. F. Ry. Co. v. Eddins. 60 T. 656: Lockett v. Schurenberg, 60 T. 610; Tom v. Sayers, 64 T. &J9; Yoe v. Montgomery, 68 T. 338 (4 > v. Williams, 78 T. 685 (15 S. W. Rep. 163); Schaub v. Dallas Brewing Co.. 80 T. S. W. Hep. 429); Saul v. Frame, 3 Civ. Api. 590 (22 a W. Rep. 984); Ma Pac, Ry. Co. v. Rabb, 3 App. C. C, g 38; Tex. A Pac. Ry. Co. v. Johnson. -' 185; Franco-Texan I- Co. v. Chapm,-. 3 S. W. K.-^ - v. Rhine, 8 a W, Rep. 315. Cullers v. Britton. 2 App. C. C., 281. * Yourgee v. League, 81 S. W. Rep. 81. O., a & a F. Ry. Co. v. Holliday, 65 T. 51* " R a 1367, 1868. ;. 1 -2 BILL OF EXCEPTIONS. [ 541. The judge has the privilege of incorporating into the bill the rea- sons for his opinion, ruling or action. When tendered to him, if it does not fairly state the point made or the reasons given therefor when they are attempted to be given, he is not required to sign it, but the procedure should then be in accordance Avith the above stat- ute. 1 The proper practice, when the duty is imposed on the judge to prepare a bill of exceptions, is to set forth in it the substance of the bill tendered by counsel ; the fact of its tender to him, and his presentation thereof to the adverse party or counsel, if it was pre- sented, with their objections, if any; also the fact that he pointed out the corrections he required to counsel tendering the bill; that he had indorsed his refusal to sign on the rejected bill, with all other facts necessary to a full understanding of the facts. A bill of ex- ceptions which was rejected by the presiding judge when presented by counsel, with his refusal to sign indorsed, and returned to counsel having the preparation of bills of exception in charge, will consti- tute for some purposes a part of the record, if filed promptly dur- ing the term by the counsel to whom it was returned by the judge. 2 Counsel presented four bills of exceptions to the judge for his ap- proval. The first was approved without qualification ; the second was approved with a qualification written above the signature of the judge ; the third and fourth were returned to counsel without approval, with the reasons for not approving written therein, and in this form all the bills were incorporated in the record. This was a substantial compliance with the statute. If counsel desired a bill prepared by the court, he should have made demand for one, and if the demand was refused he should have excepted. 3 541. Controverted bill of exceptions and affidavits relating thereto. Should the party be dissatisfied Avith the bill of exceptions filed by the judge, he may, upon procuring the signatures of three re- spectable bystanders, citizens of the state, attesting the correctness of the bill of exceptions as presented by him, have the same filed as part of the record of the cause ; and the truth of the matter in ref- 1 Firebaugh v. Ward, 51 T. 409. 2 Lanier v. Ferryman, 59 T. 104 3 Johnson v. Lyford, 29 S. W. Rep. 57. The refusal of a judge to sign a bill of exceptions, which it is apparent could not have affected the result in the appel- late court, will afford no ground for reversal. Belo & Co. v. Wren, 63 T. 686. If by any undue practice the signature of the trial judge should he procured to a bill of exceptions it would be competent for the court below, on motion for that purpose, to strike such bill of exceptions from the record, even after the adjournment of the term. The record cannot be corrected in the appellate court after the cause has been submitted. E. L. & R. R, Ry. Co. v. Culberson, 72 T. 375 (10 S. W. Rep. 706). It is not error for the trial judge to refuse to sign a bill of exceptions to his action in the trial of a cause which action appears otherwise in the record. Masterson v. Little, 75 T. 682 (13 S. W. Rep. 154). BILL OF EXCEPT! 513 erence thereto may be controverted ami n .aintained by :itH.I nut i-xr.-.'dini: live in number on each sidr, to be filed n itli the ]<. of the ran-'-. within ten days after the tiling of such bill tions. ami to be OOOfldered as a part of the record ivlatimr thereto. 1 A bill authenticated l>y bystanders must show that it was seated to the judge, and that he refused to : ign it and eertified tin- W of his refuel. The certificate of tin- bystanders miKt on its fan- that the persons signing it were bystanders; that they when the fact in dispute occurred in court; and must ]>oint directly t<> the matter in issue. The certificate slmuM be given at tin- time of the occurrence of the fact. It should then appear whether the judge permitted the bill to be tiled; if not, alii davits should bo produced. If the judge is of the opinion that the bill as authenticated by bystanders is not true, it is his duty to forbid the filing of it, leaving the facts to be authenticated bv affi- davit. 1 A paper tiled as a bill of exceptions in a can gned by the jud^-'. but by three citizens, eight days after the trial (the judire havinir refused to sign), which fails to show that those who signed it were present at the trial, or that their certificate was u at the time when the occurrence to which it related transpired, will not be regarded on appeal. 1 S 542. Where the trial is by the court. AVhere the trial is by the court, the conclusions of fact and of law are filed with the clerk and constitute a part of the record. In such cases, it is sufficient for the party excepting to the conclusions of law or the judgment of the court to cause it to be M the record in the judgment entry that he excepts the 1 he may thereupon take his appeal or writ of error without a :it of - or further exceptions in the transcript, but the transcript must contain the special verdict of the jury, if any, or the c- us of fact and law, and the judgment thereon. 4 When the t -v the judge, and the judgment is not rendered before the end of ; but the cause is continued by consent of parties, a statement of facts and bill of exceptions may be prepared and filed upon request in writing by either party.* Failure to file conclusions on request must be shown by bill of 1 R. a 1369; Firebau^'h v. \Y a r.l, r>\ T. 409. Provision la made for admitting surh nill us a part ->f the r.-<-orl in the court of civil appeals. & & 1014, 1 Houston v. J 1 TD. > Heidenh'-ini. r v. Thomas, 63 T. 287. Where a party fails to use proper gence at the proper time to secure a hill of exceptions, he is not entiUed to a writ of mandamus to compel the judge to prepare and sign one. O., C Jt S. F. Rv. Co. v. Lock! 297. Rulefft BILL OF EXCEPTIONS. [ 542. exceptions. 1 A full statement of facts may take the place of con- clusions of the judge. 2 Where no exceptions are taken to the conclusions of law of the judge or to the judgment, the only inquiry on appeal will be as to whether the pleadings authorized the judgment. 3 Where it does not appear that any exception was properly taken, and the court's attention was not called to any defect in the findings by a motion for a new trial, such an actual finding upon all the facts will be im- puted to the court as will justify its judgment under the pleadings. 4 If the law is not complied with by filing a separate finding of facts, a party is entitled, on pointing out the defect, to have the facts shown by a statement of facts. 5 A bill of exceptions filed after the term will not be considered, and the conclusions of the judge when so filed will not be considered in place of a bill of exceptions. They will not be considered on ap- peal, if filed after the term by consent of counsel, and dated as though filed during the term. 6 A finding that a party has com- plied with the law so as to fix a lien upon certain property in his favor as a material-man is not a finding of facts. 7 1 Fuller v. Follis, 24 S. W. Rep. 368; Scurry v. Fromer, 26 S. W. Rep. 461; Hop- son v. Schoelkopf, 27 S. W. Rep. 283; Landa v. Heerroan, 85 T. 1 (19 S. W. Rep. S5): Cleveland v. Sims, 69 T. 153 (6 S. W. Rep. 634). 2 Alamo Fire Ins. Co. v. Shacklett, 26 S. W. Rep. 630; Wilkins v. Burns, 25 S. W. Rep. 431. SMcKee v. Price, 3 App. C. C., 336; Continental Ins. Co. v. Milliken, 64 T. 46. 4 Spencer v. James, 31 S. W. Rep. 540. 5 Seymour Opera-House Co. v. Wooldridge, 31 S. W. Rep. 234. 6 Maverick v. Burney, 30 S. W. Rep. 566. 7 Seymour Opera-House Co. v. Wooldridge, 31 S. W. Rep. 234. xxxiv. AIKiUMENT OF COUN 543. Order of argument 544 General rules. 545. Arguments on the facts to be confined to the evidence, le-bar remarks prohibited; ob- jections to violation of rules in argument. o 17. Objections, when and how taken. 548. Right to a reasonable time for argument 549. Improper remarks are ground for reversal, when. % 550. Argument on the law. 551. Reflections on oppo- 552. Effect of correction l>y court :mel, the court may prescribe the order of argument between them. 1 llul. providing for the admission by defendant of plaintiff's rause of ac- tion, so as to secure the right to open and close, is held not in flict with this statute. 2 It is provided by rule that counsel for plaintiff, or for defendant, when he holds the affirmative of the issue, shall have the right t<> open and conclude; but if he waives the right of opening the argu- ment, he shall not have the right to conclude. This rule applies to motions, exceptions to evidence, and all other matters presented to the court, except in rules to show cause, in which the party called on shall beijin and end his cause. 1 When, after the plaintiff's counsel has addressed the jury, th- fendant's counsel declines to make an argument, the court will not revise the discretion of the trial judge in permitting a st> argument to be made by plaintiff's attorney when no injury is shown to have resulted. 4 i R a 1299. - Hitt^.n v. Stat.- Nat. Bank, 14 a W. Rep. 780. 'Ru! * T. & P. Ry. Co. v. Scott, 04 T. 549. 516 ARGUMENT OF COUNSEL. [ 544, 545. Whoro .1 material issue is not discussed in the opening, if raised in the closing argument and the argument is directed to the court with a view to have a charge upon the point, such conduct of the case is not sufficient ground for reversal. While it is the duty of counsel opening the cause to present the whole case as he relies upon it, both of law and fact, yet it must not be understood by this that counsel must notice every particle of evidence tending to establish a fact or otherwise be denied the right to refer to it. 1 644. General rules as to argument of counsel. An application for first continuance shall not be argued. In all arguments, and especially in arguments on the trial of the case, the counsel opening must present his whole case as he relies on it, both of law and facts, and will be heard in the concluding argument only in reply to the counsel on the other side. Counsel for an intervener occupies the position in the argument assigned by the court according to the nature of the claim. Arguments on questions of law must be addressed to the court, and counsel should state the substance of the authorities referred to without reading more from books than may be necessary to verify the statement. On a question on motions, exceptions to the evidence, and other incidental matters, the counsel w r ill be allowed only such argument as may be necessary to present clearly the question raised, and refer to authorities on it, unless further discus- sion is invited by the court. 2 It is the duty of every counsel to address the court from his place at the bar, and in addressing the court to rise to his feet; and while engaged in the trial of a case he must remain at his place in the bar. N >t more than two counsel on each side will be heard on any question or on the trial, except in important cases, and upon special It-live of the court. 3 After the court has pronounced its opinion upon a question made, no further argument will be heard ; but if counsel think the court has fallen into error as to law or fact, they may submit a state- ment in writing, which the court will receive and consider. 4 The court may hear argument on exceptions to the admission or exclusion of evidence. 5 ?' 546. Arguments on the facts to be confined to the evidence. Arguments on the facts must be addressed to the jury, when one is impaneled in a case, under the supervision of the court. Counsel 1 Wills Point Bank v. Bates, 72 T. 187 (10 S. W. Rep. 348). 2 Rules 35-38. 3 Rules 42. 44. 4 Rule 52. Rule 60. 54G.] ARGUMENT OF COUNSEL. .'. 1 7 are required to confine the argument strictly to the evidence and to th- arguments of opposing counsel. Mere personal crit counsel upon each other must be avoided, and when induL- must IK- promptly corrected as a contempt of court. 1 Win-re evidence is excluded by the court, argument of counsel upon its non-production is properly prevented.' Where n _ alleged on the part of trainmen, and no proof was oiler- an effort to stop the train, it was not improper for plaintit! .sel to urge that no effort was made. 3 It is error in the court to allow counsel to discuss before the jury the irrelevant question of the wealth of a party, and to insist that the wealthier the parties the greater should be the amount of dam ages assessed against them: and this error is not cured by the fail- ure of opposing counsel to interpose objection at the tint g 546. Side-bar remarks prohibited; objections to violation of rules in argument. Side-bar remarks and remarks by counsel of one side not dressed to the court, while the counsel on the other is examin: witness, or arguing any question to the court, or addr- jury, will be rigidly repressed by the court The court is not re- quired to wait for objections to be made when the rules as to a raents are violated, but should such violations not be noticed and corrected by the court, opposing counsel may ask leave to rise and present his point of objection. But the court must protect 001. from any unnecessary interruption made on frivolous and unim- portant grounds. 5 The practical enforcement of the rules of court against remarks, etc., must be left mainly to the trial courts, and there must be strong reasons to believe that injustice has been caused by a lation of such rules before the action of the trial court will be held cause for reversal. 8 The use of offensive epithets towards \\\< posite paily during the argument are not deemed injurious to the vests of such party, especially where counsel is prompt 1 proved and admonished by the court. 7 Where counsel p. asking leading questions, al'ter iM-in-r admonished, a remark ly op- posing couiiM-1, You needn't lead that wit in- 11 tell en anyhow," is not can so for complaint. 8 Rule 39: H. & T. C. Ry. Co. v. Newman, 2 App, C. C., 350. - Martin Hn.wn Co. v. Perrill. 77 T. I'.w (13 S. \V. Rep. 975). G.. H. & & A. Ry. Co. v. Dm-lin. -'5 S. W. Rep. 59. * Willis v. Mi-NVill. .->7 T. 405. A Rules 40. 41. r:u-. Ily. Oft v. L.-un-.th-. f. T. tit (II S. \V. Rejx 104). Ma\.-r v. Dnk.-. 7','T. -ll-MluS. NV. 1, -t. L. & S. F. Hy. Oi. v. Daughterj'. 81 S. W. Uep. 70-1 518 ARGUMENT OF COUNSEL. [ 547. 547. Objections, when and how taken. The cases are not uniform on this subject. In some it is held that the objection must be made promptly, in time to check the objec- tionable argument; in others it is held that the error is not waived by failing to object at the time. It is said that the discretion given to counsel by the rules, as to whether he will make the objection at the time, was doubtless based upon the well-known embarrassments and often prejudice which generally attend the interruption of the argument of one counsel by another, and that it was the intention to place the duty where it properly belongs upon the presiding judge; that whether counsel remains silent or objects may be alike prejudicial to his cause; silence may be construed into acquiescence, objection may call forth a damaging repartee. 1 The weight of authority, however, seems to be in favor of mak- ing objection at the time. " It is peculiarly the office of an objec- tion or exception of. this kind that it shall be made at the time of the act complained of, in order that the evil may be promptly reme- died. To allow without objection the continuation of such a line of argument would, in some cases, enable a party to take the chance of a favorable verdict, and which, if adverse to him, could be set aside upon objections which, if promptly made, would have resulted in a correction by the court." 2 It is said that if objection is not made at the time, a reversal cannot be had unless the language complained of was plainly prejudicial to an impartial trial, 3 or was of " the most flagrant character." 4 It is the right of every litigant, while acting in good faith, to ob- ject to any argument made to a jury on behalf of his adversary which he regards as improper, and it is not proper for opposing counsel to ask the jury, either directly or by implication, to con- sider such an objection as evidence against the party making it, on the merits of the case. 5 The objectionable language should be presented to the lower court in a motion for a new trial. But whether the appellate court would refuse to consider the objection if not so presented is not stated. 6 ' Willis v. McNeill, 57 T. 465; Prather v. McLelland, 26 S. W. Rep. 657: I. & G. N. Ry. Co. v. Smith, 1 S. W. Rep. 565. --Moore v. Moore, 73 T. 382 (11 S. W. Rep. 396); Bender v. Peyton, 4 Civ. App. 57 (-2:5 S. W. Rep. 222). < '. & S. F. Ry. Co. v. Greenlee, 70 T. 553 (8 S. W. Rep. 129). 4 W. U. Tel. Co. v. Apple, 28 S. W. Rep. 1022. \V. U. Tel. Co. v. Wingate, 6 Civ. App. 394 (25 S. W. Rep. 439). In Moore v. Rogers, 84 T. 1 (19 S. W. Rep. 283), no objection was made in the lower court, either at the time or in the motion for a new trial, and the supreme court re- fused to consider the question. 6 1. & G. N. Ry. Co. v. Irvine, 64 T. 529. A bill of exceptions to words spoken in argument was filed; the adverse party, who was the plaintiff, sought by mo- tion to have it corrected, alleging that the bill had not been submitted to the 19.] ARGUMENT OF COUNSEL. 519 ? 548. Right to a reasonable time for argument. The right to make an argument to the jury is given by - and any unreasonable infringement of the riic'.it bv the court will be ground for reversal. The court ma :ul discretion as to tin- anumnt of argument permitted, l>ut parties have a right to a reasonable time for the presentation of the facts to t as well as a reasonable time to comment on those facts, and to draw therefrom what they may consider the natural and l.-^itimat. duct ions. What time would be reasonable and proper must depend very much upon the nature of the case, and the facts to be pr>- 1, and the matter is not subject to the arbitrary .n of the judge. 2 In regard to the practice of reading law authorities to the court, it is said that no positive, inflexible rule can bo given. The rule is well established, however, which permits the reading of law authorities in the presence of the jury; but the court ought to be permitted to protect the interests of litigants and the public against any unneceary consumption of time in the discussion of such matters. 5 549. Improper remarks are ground for reversal, when. The use of improper language in argument furnishes ground for reversing a judgment only in cases in which the preponderant evidence seems against the verdict, or the verdict is excessive, and there is ivason to believe that it may have been affected by the conduct of counsel. Litigants are not to be punished by rev. for improprieties of their counsel, unless there is reason to b that such conduct affected the merits of the case. 4 Improp. plaintitT or t" h I. The motion was overruled for the reason "tl. !ai;-_'ii:iu''- .Klmitti >1 in tin- motion was substantially the same as that contained in tlu- bill as iil.-.l." On appeal tin- (puestion so raised by th.- motion was consld- in.l tin- ruling of tin- trial court adhered to and approved. O., C. A Ry. Co. v. Jon. IIS. W. Rep. 185). In the openin.; :n -iini-'iit counsel used lanKiiap- which \viis objected to M im- r. Tin- trial .ju-lu'- >uMain.-d tin- objection. If this action of was ill-rim I in-iith'. -i. -lit t c.invct tin- impression, a special charge shouM ha\<- been asked upon tin- subject, and if refits, ,1 a hill of exceptions si; facts making the <-i, :nt-nt sliould have been tendered. In absence of il r.-.ju -t -.. to c,,nvt th.- error, the appellate court <-an rarely K'iv. : u,-r v. Cl.-nii. 1 T. .VM 1 13 S. W. Rop. 572). i K. S. 1 JNesbitt v. Walt ,76. Mnytield v. i.'otton. :;: T. 229t *I. ,v '-. N Ry, a r. Irviip. -'.I T ..'.': II. ,v T. C Ky. Co. T. O*Hare. 64T.600: BotcMnj 'u. ( i>. 5h Willi- v. Lours. .; T. :.i .' & \\ 2 U. C. 301: BUia v. Simps.-n. M5 T Garc; \..^.\\-.\l > .(^.y\'-l^-i\'i \V.Rep.i7 320 ARGUMENT OF COUNSEL. [ 549. marks of the successful counsel are presumed to have influenced the minds of a jury, and are grounds for reversal if the verdict is airainst the great preponderance of evidence. 1 When counsel in ar- gument go bevond a discussion of the issues arising out of the plead- ings and evidence, exceptions should be taken at once. It is only Avhere remarks of counsel are reprehensible, not provoked by the other side and in answer thereto, called to the attention of the court and not bv the court checked, and some probability existing that the verdict was influenced thereby, that they will be ground for re- versal. 2 Where the remarks of counsel are calculated to divert the minds of the jurors from the real issues in the case, and to influence their feelings so as to prevent a deliberate exercise of rational judgment, and there is reasonable doubt, in view of the evidence, of the cor- rectness of the verdict, and a strong probability that it would not have been so large in amount but for the use of the improper and inflammatory remarks, the verdict ought to be set aside and a new trial granted. 3 The courts will hesitate to reverse a judgment v. Johnson, 23 S. W. Rep. 1022; Sinclair v. Stanley, 69 T. 718 (7 S. W. Rep. 511); G.. H. & H. Ry. Co. v. Cooper, 70 T. 67 (8 S. W. Rep. 68); G.. C. & S. F. Ry. Co. v. Jones, 73 T. 232 (11 S. W. Rep. 185); Ft. W. & D. C. Ry. Co. v. Johnson, 5 Civ. App. 15 (23 S. W. Rep. 826); San A. & A. P. Ry. Co. v. Bowles, 30 S. W. Rep. 727; Lewis v. Alexander, 31 S. W. Rep. 414; Tex. & Pao. Ry. Co. v. Pollard, 2 App. C. C., 488. 1 Blum v. Simpson, 66 T. 84 (17 S. W. Rep. 402). 2 Moore v. Moore, 73 T. 382 (11 S. W. Rep. 306). Where the trial judge refuses .to grant a new trial on account of extravagant remarks made by counsel, the court of civil appeals will not reverse, unless the record makes it appear reason- ably probable that an erroneous result has been thereby produced. Tex. & Pac. Ry. Co. v. Raney, 23 S. W. Rep. 340. Where the trial judge overrules a motion for new trial in a case in which counsel indulged in improper remarks in his speech to the jury, it may be as- sumed that the judge has concluded that no injurious results from such remarks have entered the verdict; and, while the appellate court will revise this conclu- sion, yet it will not reverse unless the case is a plain one. When an exception of this kind is presented, the trial judge may very appropriately give the appel- late court the benefit, in an addendum to the bill, of any fact or views, not otherwise disclosed by the record, supporting his conclusion that the complain- ing party has suffered no injury from the unauthorized remarks of counsel. Radford v. Lyon, 65 T. 471. a G., C. & S. F. Ry. Co. v. Butcher, 83 T. 309 (18 S. W. Rep. 583); G., C. & S. F. Ry. Co. v. Norfleet, 78 T. 321 (14 S. W. Rep. 703). Statement of counsel in argu- ment of reasons for not bringing forward certain witnesses, not being calcu- lated to arouse passion or prejudice, and the verdict not being attacked as wanting in support as to actual damages, noticed only to be condemned. Inter- national & G. N. Ry. Co. v. Greenwood, 2 Civ. App. 76 (21 S. W. Rep. 559); Hans- bro v. Blum. 8 Civ. App. 108 (22 S. W. Rep. 270). Counsel, in his closing speech to the jury, was, unrebuked, allowed to say: "Counsel for defendant tells you that I may try to prejudice you. I have not told you of the great privileges the city has given to it; I have not said any- thing about its not having an effective hydrant in this whole city; I have not 550.] ARGUMENT OF i: solely for the use of improper language l.y counsel for the success- ful party, in a case in which they aiv unable to >ay the \ idenoo preponderates against the finding; hut where to invective is ;idled star. -meats of fact not in evidence, exceed ingly damaging to tho t of a witness whose testimony must bo broken down to seemv a verdict, and the statements probably hud tho desired effect, the judgment ought to be reversed. 1 In suits for damages counsel may urge the jury not to bring in a compromise verdict, and may ask for large damages, ui-^iii^ the matter upon the attention of tho jury. Tho jury are supposi be aware of their power in awarding d-unagfs. Reference by coun- sel to the fact that he is interested in the verdict is condeinnv 55O. Argument on the law. AVhere the argument is upon a legal proposition addressed to tho court, there is no limitation by the rules restricting counsel to the pleadings and evidence. Counsel has the right to address an argu- ment upon the law of the case to the judge, with A view to instruc- tions to le H-ked upon his own hypothesis as to the legal deduct ions which arise upon the case before the court. A departure from tho legitimate hounds of this right, or an abuse of it l>y an imp; discussion of facts not involved in the proper illustration of the point under discussion, or allusions made unnecessarily and within bearing of the jury, would fall within the spirit, at least, of the in- hibition contained in rule 39, and the court should promptly r late the conduct of counsel under such circumstances by taking the appropriate action to prevent the impropriety. 1 told you that thi* corporation has a place up here on the street where it r water by the barrel." etc. Being exeepted to. aii'l con.~.ider.-d alon^ with the assignment complaining that the verdict was av'.iiii-t tic- w.-1-ht of the evi- . a n'-w trial should have been granted. Houston Water-work* Cp. 475 (23 a W. Rep. 48). 1 Wichita Valley Mill Co. v. Hobbs. ft Civ. App, 84 (23 S. W. Rep. '.' was an action liy an employee against a mill e-.mpany. PlaintiffM his elo^in- urirumiMir to the jury, stated that defcn lant had tri.-d to - farm. -is down t<> tin- lowest notch on tin- price of wh.-at, and had Hwindi- ch.'iitfd them liy fal-- \vcJKhts, and wan now trying to swindle plaintitT his hard earnings, and that H.. .icffiidant's pr-^i.l Mit. was a man whose every thought is how to H.|U-''/,e the last cent out of tin- farmer*, and should U> taught that Much - would not be tolerated by an hoin-t jury. This language x'ini'ilv . \. |ted to, antimony had to U lirokni down to w v.-rdiet for plaintiff. There was no evidenw t<> support t that n witn-ss stated he had heard nplaint of short u-u-Mic It was that a judgment for plaintilT should JK; reverse.] AROCMENT OF COUNSEL. ?: 553. Latitude allowed where the argument is confined to the evi- dence. It is the duty of the court to confine the argument of o> any >ta-_re. to the evidence before the jury; but with the prop; of an argument upon testimony 'which has been adduced tin* court has no concern; especially when the opposing counsel has the ri^ht to reply. 1 It is said that reversals will not be had merclv because iliisti-v in argument or fallacious reasoning ujxm the facts, when it do.'s not appear that the jury were prejudicial tln-rehv; that there must of necessity be allowed some latitude in debate; that an attorney may discuss his case from an erroneous standstill t, but his errors are not the errors of the court.'-' I'nder the rule that latitude must be allowed in argument, it is difficult in some cases for a court to limit it, and determine what is not aro-ument deducible from the testimony, and what are merelv _eiated deductions from the testimony. When the argument is nt Uised on some reasonable view of the testimony, it is not permissible; but when it is mere exaggeration of a feature of the upon which there is testimony, the court cannot inter' The jury must be left to judge of the facts, and are presumed to be competent to do so, notwithstanding exaggerated declamation of conni It is the province of the jury to determine what facts are estab- lished and what they prove, and the court should not undertake t<> protect them by giving the court's view of the weight or eftV \ idence by restricting argument of counsel to such view. The court should not take such responsibility. If counsel assert that are not in proof, or argue issues that are clearly not rais.nl by pleading or proof, the court may interfere, and by so doing correct tlu- evil that may have occurred; but it cannot undertake to con- Hi.. 1 I. \- s. \ i;\. Co. v. Duelin. 86 T. 450 (25 S. W. Rep. 406). - M. 1'a.-. Ky. <'<>. v. Whit,., so T. , > ir.'. In the argument >f tin- case GOOD* |.|;iinuir expressed regret that a larger sum was not originally rl.u;u.-,l in daui- thus intimating that the evidence would justify the awarding of a largrr sum. :in- thi-n- \va- r\ ii IfiH to support tin- vcnlirt. and a,s tlu- justut-'s court and tl trirt t-ourt had found the same sum. it was held that there w no re- li.-lii-ve that tin' jury wen- improperly intlueiic-ed. G., H. & ~ .I..hns.,n. r.S. \V. Rep. 867. In a suit for lilx-1 in sen. ling out open letters through a "bad debt i. mark- of plaint in"* conns.-!, that tin- jury sin mid giT* a \rplict tliat would teach men when they have debts to collect to g< un.i tlu- c.-:irt> at li.'ine wlu-p- then- i - an honest judp> and jury, and not try to collect l.\ -. -ii'linu' such scandalous lih.-lst.ia widow woman, thnmulm i at riii.-ap>. are ju.tiliahle. Hurton v. < )'Ni.-ll. > 'iv. A pp. ',: sprath.-i \. McClelland, 5-S S. \\ . K.-p. 94; Texas Telegraph A T. Co- \ . \\ . Rep. 258. 524: ARGUMENT OF COUNSEL. [ 554, 555. trol the logic of the facts in evidence, and tell the jury that an ar- gument on the facts is not justifiable. 1 In an action against a railway company for damages for delay in transporting cattle, defendant's counsel contended in argument that the contract of shipment was a binding contract. In reply to this, plaintiff's counsel, in his closing argument, said that railroads never make reasonable contracts, and that they always endeavor to take advantage, and that they usually succeed, etc. This was held illegitimate, and a sufficient ground for reversal, the court having refused to instruct the jury to disregard it. 3 554. Reply to improper argument. The rule is that when improper language is used in response to similar language used by the adverse counsel, and equally unau- thorized, the party provoking such a course of argument will not be heard to complain on appeal ; 3 especially where it does not ap- pear that the language used influenced the verdict. 4 But the rule does not appear to be well nettled. The supreme court say " it is not thought that the wrong of one attorney will justify a like wrong on the part of another by way of retaliation, although this court would not hesitate to set aside a verdict which had been in- duced by language not justified by the record, when the opposing counsel may have given the first offense." 5 S 565. Prejudice against corporations. Judgments are frequently reversed in cases in which corpora- tions, and especially railroad companies, are parties, on account of language calculated to arouse the prejudice of the jury against cor- porations. The cases are generally for damages for personal in- juries, or for injuries resulting in death, the object being, of course, to encourage the jury in giving large damages.. The rules guiding- the appellate court in such cases are stated as follows: " On account of there being no exact method of estimating the amount of such damage provided b}^ the law, we do not feel author- ized to set aside every verdict that is for a greater amount than we 1 Texas Telegraph & T. Co. v. Seiders, 29 S. W. Rep. 258; Trinity County Lum- ber Co. v. Denham, 29 S. W, Rep, 553; G,, C, & S. F, Ry, Co. v. Perry, 30 S. W. Rep. 709. 2 A., T. & S, F. Ry. Co. v, Bryan, 28 S. W. Rep. 98. Where it is developed by the evidence as a fact, that a party failed to offer the testimony of a certain witness in support of other testimony, such fact is a legitimate subject of com- ment in argument, Dittman v. Weiss, 31 S. W, Rep. 67. 3 Tex, & Pac. Ry. Co. v. Garcia, 62 T, 285; Heidenheimer v, Thomas, 63 T. 287; G., C. & S. F. Ry. Co. v. Scott, 26 S. W. Rep. 995. Willis v. McNatt, 75 T. 69 (12. S, W. Rep. 478); Paschal v. Owen, 77 T, 583 (14 S. W. Rep. 203). 5 G,, C. & S, F. Ry, Co, v, Witte, 68 T, 295 (4 8, W, Rep, 490), "0.] AROl'MKN'T OF COUNSEL. would have given as an original question, or when we cannot ac- count fur it from the evidence when the question has been pr|H-rlv submitted to the jury. But in all such cases there nn ground to believe that the verdict has been influenced from any improper cause. It must appear that the cause has been fairlv sub- mitted to the jury upon the law and evidence, and there must In- round for charging that the verdict has been influenced b - t raucous considerations or by passion, partiality or prejudice. The \vnliet is larger than we can account for upon any view of the evidence. The remarks of counsel excepted to were not justified or called for by anything legitimately belonging to the case. W.- cannot say that they did not improperly prejudice the jury. "\Vc cannot say that they exercised no influence on the jury. If thev exercised any it was an improper one. The fact that we have no means, and that the jury have none, of arriving at the exact amount of damages in such cases emphasizes the importance of guarding the minds of the jury from all misleading and improper influences and appeals." l 556. Statement of facts not in evidence. Counsel should not be permitted to assert material facts, perti- nent to the issues in the case, and resting upon his asserted knowl- edge of them, where he has not testified to such facts as a witness. 3 The argument should be confined by the court to the discussion of those issues made by the pleadings in regard to which some evi- dence has been introduced. 1 i Dillingham *. Scales. 78 T. 205 (14 a W. Rep. 568). See T. & St L. Ry. Co. r. Jarrell, 60 T. 268; G., H. & S. A. Ry. Co. v. Kutac, 72 T. 643 (11 & W. Rep. O., C. & S. F. Ry. Co. v. Witte, 68 T. 295 (4 S. W. Rep. 490). In a suit for dam- ages against a railroad company, the statement by counsel that " this railroad is a monster, wealthy and powerful, more powerful than any individual in the state, and is not on an equality with any private citi2en," is improper, and is suflli-ient ground for reversal if it should appear that the jury was probably in- fluenced by it G., H. & S. A. Ry. Co. v. Silegman, 23 S. W. K p. 2iK to permit plaintiff's counsel to say to the jury: " It is a part of the contr railroad man that he must swear for his road or be discharged." > & T.'Ry. Co. v. Woods, 25 S. W. Rep. 741. In a suit against a railroad company for setting fire, where defendant's coun- sel had asserted the equality of the defendant with private citizens befot law, a remark of counsel, excepted to and unchecked by the court, thn- was not so, that defendant had the right, unlike a citizen, to condemn * grave* yard and disturb the resting place of the dead, is ground for reversal on appeal. Gulf. C. & 3. F. R Co. v. Scott, 7 Civ. App. 619 (26 a W. Rep. W8X See St. L. S. W. Ry. Co, v. McLendon, 26 a W. Rep. 807. ( <>. v. M:ir*.l.-n. 1 App. C. C.. 1001. It was improp. : counsel to state to the jury "that lit- had drawn the petition tt in cases not so bad as this, and had put the amount claimed as low as he thought he could." He was in effect testifying before the jury, and the language called for more from the court than a mere direction to the jury not to regard it Fordyce v. Withers, 1 Civ. App. 540 (80 a W. Rep. 760> Taylor v. McNutt, 58 T. 71. 526 ARGUMENT OF COUNSEL. [ 557. It seems that it is not improper for counsel, in considering the amount of damages that might or ought to be allowed, to state the amount allowed in other similar cases coining under his observa- tion ; l but it is held that the statement by counsel in closing the case that " the plaintiff recovered a judgment in this case on a former trial hereof on the same proof as was given on this trial," is good ground for reversal. 2 Statements by counsel as to what was done on a former trial of the case, with a view to creating a prejudice against the opposite party, should not be permitted. 8 But the courts recognize the fact that jury trials would be lamentable failures if they were subject to be influenced by every statement of counsel outside of the issues and the proof, and the rule is not to reverse unless it is reasonably probable that the statements influenced the verdict. 4 557. Reading from books. It is left largely to the trial judges to determine what author- ities and how much of each they will permit to be read to them. If in any case it is apparent that the purpose is to influence the jury rather than to inform the judge, the attempt should be promptly rebuked. But such practice is no cause for reversal un- less strong grounds be shown to believe that it improperly influ- enced the verdict. 5 Essentially the same ruling is made in some cases on the reading from books to the jury. 8 As a general rule it is held to be a matter of discretion with the trial judge to permit or to refuse to permit counsel to read from books of law during the argument. But where the matter read is calculated to have the 1 H. & T. C. Ry. Ca v. Larkin, 64 T. 454, 2 Attaway v. Mattox. 4 App. C. C., 22; At wood v. Brooks, 4 App. C. C., 89. 3Delk v. Punchard, 64 T. 360. * Welborne v. Downing, 73 T. 527 (11 S. W. Rep. 501). In this case it is held to be no ground for reversal that an attorney for appellee, in urging his client's claim to the property as his homestead, said "that he had heard a lawyer say this morning that appellee was entitled to the property in controversy if he left so much as a blanket thera" Counsel for appellee, in the closing argument, addressing the jury used this language: "This case was brought here on appeal from the county court, was tried and appealed; was reversed and remanded, and tried again in this court, both juries finding all of blocks 27 and 31, together with improvements, to b3 her homestead; " and after exceptions were taken to the remarks counsel again stated to the jury about the same in substance, viz., " that two juries had already found this property to be the old lady's homestead and he expected this jury would do the same." It not appearing probable that the jury were influenced thereby, the language used was no ground for reversal McLane v. Paschal, 74 T. 20 (11 S. W. Rep. 837). &Mo. Pac, Ry. Ca v. Lamothe, 76 T. 219 (13 S. W. Rep. 194); W. U. TeL Co. v. Wingate, 6 Civ. App. 394 (25 S. W. Rep. 439); May field v. Cotton, 37 T. 229. Britton v. Thrash, 1 App. C. C., 1239; Tex. & Pac. Ry. Ca v. Wills, 2 App. C. C., 798; G., C. & S. F. Ry. Ca v. Dunlap, 26 S. W. Rep* 655, 557.] ARGUMENT OP COUNSEL. e!fcct of evidence, the rule does not apply and the reading should not IK- permitted. 1 The matter read and the comments thereon should not he permitted if not justified by the evidence.* The privilege of counsel, in addressing the jury, to read from legal authorities or from works of general science, is declared to be a vahiable privilege which ought not to be abridged, and yet so liable t<> abuse as to be properly under the control of the court in the rcise of a sound discretion. 1 1 Ilium v. Jones. 86 T. 492 (25 a W. Rep. 694). lo v. Fuller. M T. fW (19 a W. Rep. 616). It is error to permit coin to tli.- jury report* of cases decided in the appellate courts, in which n . proposition of law therein contained is controverted on trial, for the men- pur pose of making comparison of the facts with those of the case on trial W. U. TeL Co. v. Teague, 8 Civ. App. 444 (27 a W. Rep. 958). Counsel for plaintiff, over defendant's objection, read a decision of the su- preme court, reading the amount of the verdict therein, and interjecting remarks as to its similarity with the case at bar. The petition was for $5.000. the \ in the case read was for $5,000, and the jury in the case on trial ret ur net I | lu-t for $5,000. It was held that the cause should be remanded for a new trial Dillingham v. Wood, 8 Civ. App. 71 (27 a W. Rep. 1074). In a damage suit against a railway company for personal injuries, counsel for the plaintiff, in his opening address to the jury, stated to the jury that "he would read to them portions of the opinions of the supreme court of Texas for the purpose of showing them that large verdicts had been rendered against railway companies for personal injuries." To this statement, and the proposed r .cling, the defendant objected, and the objection was sustained. Subsequently counsel claimed the right and was permitted to read, as part of hit argument, two opinions of the supreme court in cases where $10.000 damages for personal injuries had been allowed and the judgments affirmed Objection was made, and it was held that the action of the trial court in allowing counsel to read the opinions as part of his argument was reversible error. O.. H. & a A. By. Co, v. Wesch, 85 T. 593 (21 a W. Rep. 62). Wade v. De Witt, 20 T. 89a It is held that a bill of exceptions to the refusal of the court to permit the reading of a legal authority or work of science must show what it was and how much counsel proposed to read, CHAPTER XXXV. CHARGING THE JURY. i The subject a difficult one. 559. Instructions, when given. 560. Charge need not be excepted to. 561. Jury may take charge with them, and may ask additional instructions. 562. Requisites of charge. 563. On the weight of evidence. 564 On the credibility of witnesses. G65. Must not assume controverted facts.- 566. Questions of law: construction of written instruments. 567. On the preponderance of evi- dence. 568. Must apply to facts in evidence. 569. Must be confined to the issues. 570. Must cover all the issues. 571. Defining the issues. 572. Must not give undue prominence to facts and issues. 573. When pleadings contain several combinations of facts. 574. On negligence. 575. Contributory negligence. 576. As to damages. 577. Measure and elements of dam- ages. 578. Parties may ask instructions; if refused, no exceptions re- quired. 579. Special instructions must be re- quested, when. 580. Need not be repeated. 581. Misleading; harmless error. 582. How charge construed in deter- mining its sufficiency or va- lidity. 583. Directing a verdict. 558. The subject a difficult one. In any trial by jury it may become necessary and proper for the court to state to the jury the law applicable to the facts of the case, as shown by the evidence. To write a proper charge, one that will stand the searching criticism of the judges of the appel- late court, requires not only a profound knowledge of the law of the case, but also the ability to use the English language accurately. It frequently happens that a charge, which would otherwise have been a correct statement of the law, is spoiled by the improper use or omission of a word or a qualifying phrase.. Very little can be given in a work on practice to aid the courts, beyond a statement of mere general principles. As the trial judge may be called upon, at any time, either to write or pass upon an instruction involving a state- ment of any given branch of the law applicable to any conceivable state of facts, it is manifestly impossible to give illustrations or precedents, except, perhaps, in the way of definitions, which would be of any practical value. There will be found, in the proper place, a few definitions and illustrations applicable to the principles in- MHHG IIIK ji'ia. '1 in art ions for damages caused by negligence, 1 but beyond this the chapter is con lined to a statement of general principles, full , it is behoved, to make it a safe and convenient guide. ?' 559. Instructions, when given. The statute contains two separate articles, as follows: " After the conclusion of the argument the court shall read to the jury the eharires and instructions, if any, under the provisions of law relating thereto. 2 After the argument of a cause the judge may, in open court, de- liver a charge to the jury on the law of the case, subject to the re- strictions hereinafter provide.: It seems that the above articles do not require the judge to charge the jury in any case. If he gives a charge, it is to be read to the jury after the conclusion of the argument. 4 Failure to charge the jury is not necessarily ground for reversal; but where, from the nature of the case before the jury, it is apparent that a proper legal ; initiation in regard to evidence before them, which is in itself liable to mislead them into giving it undue weight, is essential to enable them properly to apply the whole evidence, and the jury have probably been misled to the injury of one of the parties by a failure to give any charge touching the case, a new trial ought to be grant. 560. Charge need not be excepted to. The charge of the court must be tiled by the clerk and will con- stitute a part of the record of the cause. It will be regarded as ex- eepted to, and subject to revision for errors therein, without the necessity of taking any bill of exception thereto.* This rule applies to charges that are asked and refused. 7 The ruling of the court in the giving, refusing, or qualifying instructions to the jury, is re- garded as excepted to in all cases. 8 561. Jury may take charge with them, and may ask additional In- structions. The charge and instructions given to the jury may be carried with them in their retirement, and an additional charge or instruc- tion may be given them upon any question of 1; : ^ in the . in conformity with the rules piv>eribed by law, upon the ap- i&- fro. 2 R S. 1300. -RS. IS Hi. < Berry v. TVxas & X. < > 1: v. C>.. 7, 1 T. 020 (10 S. W. Rep. 738). L& i;. N. Ry.Ca v. l'!iiii|. r,:: T *RS. 1318. l.'ul.- :: i;. s. 1 R. S. i: - r.ll.i> <>r i:\.-KITIOXS, 34 530 CHARGING THE JURY. [ 502, 563, plication of the jury therefor in open court. 1 They must appear before the judge in open court in a body, and through their fore- man state to the court, either verbally or in writing, the particular question of law upon which they desire further instruction, and the court must give such instruction in writing; but no instruction shall be given except upon the particular question on which, it is asked. 2 562. Requisites of charge. The statute provides as follows : " The charge shall be in writing and signed by the judge; 3 he shall read it to the jury in the precise words in which it is written; .he shall not charge or comment on the weight of evidence ; he shall so frame the charge as to distinctly separate the questions of law from the questions of fact; he shall decide on and instruct the jury as to the law arising on the facts, and shall submit all controverted questions of fact solely -to the de- cision of the jury." 4 * 563. On the weight of evidence. The judge must not charge or comment on the weight of evi- dence. 5 The statute is mandatory and peremptory. It leaves no- discretion to the judge as to whether or not he shall charge or com- ment on the weight of evidence, or as to whether or not he shall submit questions of fact solely to the jury. The statute presumes that the jury is as competent to decide questions of fact as the judge is to determine questions of law. 6 The Code of Criminal Procedure provides 7 that " the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken either as conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of i R S. 1303, 1321. 2 R S. 1308. Charges asked and not given should not be taken by the jury in their retirement. Rule 62. 3 The charge need not be in writing; the provision of the statute is directory, O.. H. & S. A. Ry. Co. v. Dunlevy, 56 T. 256; Reid v. Reid, 11 T. 585; Boone v. Thompson, 17 T. 606; Chapman v. Sneed, 17 T. 428; G., C. & S. F. Ry. Co. v. Holt, 1 App. C. C., 835; Toby v. Heidenheimer, 1 App. C. C., 795. A failure of the judge to sign his charge is not reversible error; especially where the charge is filed by the clerk, and thus fully identified. Parker v. Chancellor, 78 T. 524 (15 S. W. Rep. 157). In Longine v. Ward, 1 App. C. C., 522, it is held that the judge ought to sign the charge. And see Barnes v. Jamison, 24 T. 362. In Levy v, McDowell, 45 T. 220, it is said that the giving of a verbal charge is error. RS. 1317. R. S. 1317. T. & P. Ry. Co. v. Murphy, 46 T. 357. 7 Code Crim. Proc., art. 766. ::<.INl. IIIK .! wejo-ht is to lie attached TO ;i certain species .,; said that this fairly states the rule in civil ett The rule does not preclude the judge from assuming as tru- the language u>ed in his chai_ ,,id in re- gard to which there is no conflict in the evidence. He .should not assume as .loiil.tful that which is clear and indisputable, . hypothesis at variance with an estal.lished fact. It is only v theiv i>adoulit arising from the evidence thai tho jury is reouir simony. and it is only where such doubt n that rale which forbids a judge to charge upon the weight of evi- le!ice has .implication.-' A charge is not on the weight of evidence unless it is fairly susceptible of a construction which would indicate to the jury that in the opinion of the court some oo had lii-en proved, or from which the opinion of the court on >uch might l>e inferred. 1 The court may in some cases instruct the jury which entitled to their verdict. If there is no evidence, or if the l>e all on one side, and \- sufficient, <>r when the <|iiestion is purely of law, and the verdict is a mere matter of form, such an in- struction may he given. 4 But when, upon an issue pending In-fore a jury, there is evidence in favor of a party, it is error for the court to instruct the jury to find against him, though the w. i Stooksbury v. Swan, 85 T. W. Rep. 963). nliain v. Trinity County Lumber Co., 73 T. 78 (11 a W. 1, irison. 1? T. :J?2. The enumeration of facts ami a declaration th:r idges of fraud should not be made in a charge to a jury if there be a oon- ,-iru' from the evidence as to the existence of the enumerated tacts; ami it may I*- c|U"M \w<\ even when tin- farts are uncuntrovert>-fe\: i a charge slmul'l !> vciven in any casi-. ( -\ ,-n if cnupleil witli a further rharj .^ the jury to look to all the evidence and tie refr..m to determine whether fra . FreiKer- v. Kivil-.-r-. 71 T. l',"J 1 1 1 S. \V. !;,-p. ! II-. f.'.l T. f.s;, ,7 S . \V. I.'. | a>-ume as true a fact controverted l>y the evi.l.-ip undue promioenoe to nor intimate an opinion u|m the weight of the testimony. It \\as th. i im|uo|HT to instruct the jury that "an oppr..l,noiis epith. '. : tlie idea of a lack of chastity would to a wanton cause no pain, while appli.-d to a puro and gentle wife, no tongue could tell the anguish, the shame, the -*-nse of humil- iation it would hriiiK." Hanna v. Hamia. ::t'i\. \p: ,*0)b When a party has, hy the introdurtion of title pap- connected chain of vali-1 tran-fers to land from and under the s.!\. the soil down to himself, except one link in the chain, which was suppl undisputed heirship from one in whom title had vested, an instruction jury that surh j>arty had shown title to the land is not a charge i: . hut a projMT charge ii|K>n the legal effect of u i testH inony. Teal v. T-rrell. .> T. . UY H)5; Teal v. Terrell. .V T. '.v.7: Eanon T. Eason. f,i ] t-ofn. i\ \ < arlton,56 T. 881; Siringfellow T. Montgomery, 91 T. B40; : vatcer -54). 532 CHARGING THE JUKY. [ 563. of the evidence may be against him : : that is, if there is some evi- dence tending to prove an issue, it must be left to the jury. The court may properly direct a verdict only when there is no evidence tending to establish the fact. 2 When there is no evidence except that which establishes facts, and a conclusion therefrom in favor of one party, it is not error to instruct the jury to return a verdict for such party ; but though there may be no controversy as to the ex- istence of facts, yet when the conclusion to be drawn from them is the matter in dispute, it is error to direct a verdict for either party. 3 It is proper, under the practice in this state, for the court to in- struct the jury that a fact proved on one side, with no conflicting proof on the other, is an established fact. But when, though there may be no conflict upon the circumstances in evidence, their suffi- ciency to establish another fact is an issue before the jury, the court ought not to prejudice their determination by telling them what might be considered a prima facie case; that would be fixing the weight of a portion of the evidence, and would be an unwarranted invasion of the jury's province. 4 Any intimation from the judge &s to the weight of any portion of the evidence is prohibited. 5 A charge referring to acts or decla- rations in evidence, in order to make clear the rules of law which 'limit their effect, is not a charge on the weight of evidence. A charge which states the law applicable to each state of facts which the evidence tends to establish pro and con is always proper; and -even if a charge is not strictly applicable to the case made by the i Potter v. Wheat, 53 T. 401. 2 Newberger v. Heintze, 3 Civ. App. 259 (22 S. W. Rep. 867). It is the duty of the judge to declare negatively that there is no evidence to go to the jury, but not affirmatively that a certain issue is proved. S. A. & A. P. Ry. Co. v. Long, 4 Civ. App. 497 (23 S. W. Rep. 499). * Supreme Council of A. L. of H. v. Anderson, 61 T. 296. Whether there has been evidence of incompetency, or whether there were circumstances which might be considered, in connection with such evidence, sufficient to show in- couipetency, are questions exclusively for the jury to determine; and a charge which assumes the existence of such evidence and of such circumstances vio- lates the rule which forbids a judge to charge upon the weight of evidence. Ma Pac. Ry. Co. v. Christman, 65 T. 369. * Beaumont Pasture Co. v. Preston. 65 T. 448. It is for the court to determine the admissibility of evidence. It also has the power, on a motion for new trial, -to declare whether sufficient evidence has been offered, and this power should :*>e judiciously exercised; but a charge which, in effect, may induce the jury to lieJJi.-ve that in the opinion of the judge there is evidence sufficient to prove, or strongly tending to prove, a controverted fact, is objectionable. Mo. Pac. Ry. Co. v. Christman, 65 T. 369. A charge which is so framed that the jury might have inferred from it the opinion of the court on a material issue of fact, as to >which there was conflicting evidence, is erroneous. Altgelt v. Brister. 57 T. ri32. *Mayo v. Tudor, 74 T. 471 (12 S. W. Rep. 117). CHARGING THE j: evidence, if there is nothing to induce the belief that the jury may have boen misled by it, no ground for reversal ex: The court may inform the jury of the purpose for which dence has been admitted.-' The rule is settled in this state that any charge as to a presump- tion arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption, in the natur things, is a charge upon the weight of evidence. 1 When a judge instructs a jury that a given fact will be presumed, he must lx un- derstood to mean that the fact is to be taken as established a re- sult which cannot be reached except in those cases in which the presumption is said to be of law, and therefore conclusive, other- rh;m by weighing the evidence ami therefrom determining nee or non-existence of the fact. This is the work of the jury. An instruction as to such presumption of fact is error. It has ; frequently held in this state that a charge which in effect informed a jury that the law presumed the existence of some fact from the nee of others is a charge upon the weight of evide'i.-,-, ami therefore improper; unless it be in those cases in which the pro- sumption is said to be one of law, or one of fact required by itive law but rebuttable. In all cases, the existence or non- ence of the facts the evidence tends to pro\ '.\ as the - of the fact to be implied from other facts, must be left to th termination of the jury. An instruction should not conv.-y to the minds of the jury an impression that the law or the judge attaches cei-tain weight to particular testimony, except in the instances be- fore stated. 4 i Jacobs v. Totty, 76 T. 343 (13 S. W. Rep. 37 -J '. It is ordinarih tli.- charge of the court to inform the jury what th- issues for t initia- tion ar<\ without attempting to explain what are not issues. Sin I may impr.'s n]>on the jury the belief that the court :: T. 51; Goodbar v. National Bank, 78 T. 401 (14 & W. 1! miii v. Hanna. BCSr, App. :>1 (SI s. XV. 11,'p. :e : H. Ht r. W,-' Bferfagv. a xv. K-p- '>: lay Ca L. & C.t rot ,k-lmry v. Swan. V, T. .V,:; ,-j_> s \V. Ren. 963). In this c*f> ehar-.-l : "ItM a ^'-m-nil ruh- of law that a.-ts which purj^ >l by piihli.- ofti.-.-r- in tli.-ir ofli.-ial i-apanty an. I within thr M-OJH- ,-f thnr .luly will le presumed to have been regular and in a. itli their aut' until tlif i-ofitrary ap|M-ars." Tlii-* '-liari:'' r--f'Tr-| to a notarial seal. <>i u ! surh seal attest<-.l th- notarial rtitu-.n. ..f privy arkm.w! in clT.M-ta .-har.^- that tli.- j.a! in r\id.-in-.- was jtriinn that th- otliecr had atlixgd to his ,-,-rt ificate his aeai TV law. This w* instructing UJMHI l\\>- wciu'lit of evidt-nce. wliidi din-rts thf att-ntion of th-- jury to a feature of th. sented on ronMirtiriK vid.-n<-- und.-r th : hout assumiiiK that 534 CHARGING THE JUKY'. [ 56i. s 564. On the credibility of witnesses. A charge to the effect that the jury are the exclusive judges of i he credibility of the witnesses and the weight to be given to their testimony is correct and proper, and might be given in any case. It embodies a truism of the law. It is not calculated to lead the jury to believe that some of the witnesses are unworthy of credit. 1 Where such a charge is given, a refusal to charge that whore there is a conflict of evidence credit is to be given to the witnesses most entitled to it is not error, 2 but it is not error to add the following: "If there is a conflict in the testimony you must reconcile it if you can; if not, you may believe or disbelieve any witnesses, according as you may or may not think them entitled to credit." Such a charge does not authorize the jury arbitrarily to discredit any witness, nor does it undertake to instruct them upon what particular ground they might discredit a witness; it conveys no intimation that there is a reason for discrediting the witnesses of the one or the c taer party. 3 The court gave the following charge: " In determining on which side the preponderance is, the jury should take into consideration the opportunities of the several witnesses of seeing and knowing the things about which they testified, their interest or want of in- terest, if any, in the result of the suit, the probability or improba- bility of the truth of their several statements, and from all these circumstances determine upon which side is the weight or prepon- derance of the testimony." It is said that the effect of such an in- struction is to exclude from the consideration of the jury many things proper to be considered; that it is doubtful whether such a it is established by evidence, but for the purpose of announcing the law appli- cable thereto, is not a charge on the weight of evidence. Owens v. Railway Co., 67 T. 679 (4 S. W. Rep. 593). It is error to recite the evidence and call the at- tention of the jury to particular portions of it, and tell them that from such evidence they might presume a certain fact to exist. This would be a charge upon the weight of evidence. Hammond v. Coursey, 2 U. C. 29. A charge which tends to induce belief that facts recited in it are sufficient to authorize a conclusion which the law does not attach to them is error. Emphasizing, by repetition, an idea already conveyed in a charge is also error, and may be as hurtful as a charge on the weight of evidence. Frisby v. Withers, 61 T. 134. Where an issue is made as to the sanity of a grantor at the time of executing a conveyance, it is error to charge that there is any presumption on the ques- tion as a matter of law. The question is one fact for the jury. Rogers v. Arm- strong, 30 S. W. Rep. 848, citing Railway Co. v. Brazzill, 72 T." 233 (10 S. W. Rep. 403). 1 ( ;.. H. & S. A. Ry. Co. v. Davis, 4 Civ. App. 468 (23 S. W. Rep. 301). - Winkler v. Winkler, 26 S. W. Rep. 893. 1 Liverpool & L. & G. Ins. Co. v. Ende, 65 T. 118. A charge which in effect in- forms the jury that they are at liberty to believe or not facts disclosed in an official exhibit from the books of the state comptroller's office, properly in evi- dence before them, in a case where no issue of forgery thereof was properly raised, is error. Fraiikland v. Tiernan, 63 T. 92. 565.] CHARGING THE J should ever be given, but if given it should go so far as to include all the circumstances necessarily hearini: upon the tjiiestion. 1 A chanr-of the court to the etlVct that, although a witness is neither discredited nor contradicted, the jury may discredit him on account of aurndunt cii-c uiiistaiu >, is error, being a charge on the weight of evidence. Any charge which informs a jurv that they are at lilierty to disregard the testimony of a witness under a given state of facts, without exercising their own judgment as to the credi- bility <>f the witnesses, based upon all they may see and hear iVoin witnesses during the trial, violates the rule; and the objec- tion becomes stronger when the jury are told that they mav disre- gard the statements of a witness on account of "attendant circum- stances," without reference to their character.* 565. Must not assume controverted facts. All controverted questions of fact must be submitted solely to the decision of the jury. 3 The charge must not assume a fact not in evidence, 4 nor that a controverted fact has been proved or estab- lished. 5 Where there is no conflict in the evidence the court may 1 Eddy v. Lowry, 24 & W. Rep. 1076. 2 Dwyer v. Bassett, 63 T. 274. The court charged that a witness might be di* credited if it be shown that he had sworn falsely in the case, or made contra* dictory statements, under oath, upon material points, as well as by introducing witnesses who swear that his reputation for truth and veracity is bad; and if it appeared to the jury from all the circumstances proved that the witness had sworn falsely upon one or more material points, or that In- had contradicted him- self, that they should consider the same in determining the weight to be given t . his evidence; that the legal effect of such false swearing would be to impair the credibility of the witness, but that they must determine the weight to be Driven to his evidence. This was not a charge on the weight of evidence. l.-s v. Glasgow, 2 U. C. 711. It was shown during the progress of a cause that the plaintiff, who offered himself as ,-i witness, had been convicted of a felony, and was afterwards par- doned by the governor. The jury was instructed that "the proclamation of the governor renders the plaintiff a competent witness, leaving Ins credibility to be determine. 1 by you from all tin- f-ict> and circumstances in evidence." Thi was not ;i , h.ti - on tin- weight of evidence. Costley v. Railway Co., 70 T. 112 <8S. \V. Rep. 111.. The appellee was the only witness examined who had a pecuniary interest in a suit on trial in which tin- following charge was asked: "In determining the credibility of the witnesses and the weight you should give thei are authori/.ed (,, consider tin- interest which Midi witnesses have in the n in cont rovei-sy. and tlieir demeanor and manner of testifying upon the stand." The diar-. \\.i- properly re! used. It virtually instructed the jury to consider (lie int.-r.-t <>! the witn.-sx m d.-tenninin- whether they would believe his tes- timony, an I would h:i\.- be. -i. on the weight of evidence. Willie Y. WhitriU, ;: T. ,::! ,i s. \v. i; SR. H. W7. their leiral effect. 1 If there is no ainhi^uitv in an instrument, ami the intention of the parties may be ascertained from its terms without explanation, it is the duty of the court to construe it for the jury, and to instruct them as to the rights of the parties.- After the meaning of the contract lias lieen de<-l.uvd, the question of a compliance with its terms is for the jm It is the duty of the court to determine whether an instrument has le.iral etl'ect and what such legal effect is. And where the terms of an instrument showed it to be a will, the court should have to instructed the jury; and it was error to submit to them the ques- tion whether it was a will or a deed.' Where a provision of a eon- tract is relied upon, and is proved to lie in the contract, the court should not submit to the jury the question whether it is there or not; it should simply call their attention to it, and charge the law, in connection with other facts. 9 Antonio v. Lewis, 9 T. 69; Taliaferro v. Cundiff, 33 T. 415; Whitnker v. Bledsoe. 34 T. 401; Long v. McCauley, 3 a W. Rep. iw: Allen v. Ko 505 (14 S. W. Rep. 151); Ivey v. Williams. 78 T. 685 (15 S. W. Rep. 168) Beau- mont Pasture Co. v. Cleveland. 'Jt; s. \V. Rep. 93. JSoell v. Hadden, 85 T. 182 (19 S. W. Rep. 1087): G., C. & s. K. KV lone, 25 S. W. Rep. 1077. A charge submitting the construction of a writ the jury, if not pri'judical to appellant, is not ground for reversal. Hlu Banana Co. v. Wollfe. > S. W. Rep. Linch v. Paris L. & G. Co., 1 4 S. \V. Rep. 701. < Stanley v. Samples. "2 \\ C. I, 1 *;. Wli.-r.- tin- power is given in a deed ,,f trust to appoint a substitute trustee, and mob appointment il t<> b.- made b\ a \\ritt.-n instrument, the construction of a written instrument r.-lied on as b. the document contemplated and provided for in the deed of trn- the court, and it is not comp.-t.-nt for tli.- jury to pa-^ upon that .|U--t ,..n. M. Cormick v. Cheveral, 2 U. C. 146. A char-.- that if the jury find th.- i upon as title by a party i.-miiii'-ratiii;: t!:i- iiisrru:u-ntsi th.-y should find for the party is projer. although not distinctly informing tin- jury of tic- l-al -ll the several instruments in t-vid.-nci-. Ruby v. V.m Valk.-nU'r. S. W. R,.p. -.IK Hilernia Ins. Co. v. Starr. i:t S. \V. K -p. 1"U7. It U-iug th,- | court to con-tru-- written in>t rum.-nt>. a i-iiatv 1 ''' " '< I"!"' 1 regular on its face, and with proof of h. ir-lup i- sutli.-ient t. vest till- Howell v. Haiirirk. 2J S. \V. i; -p. In trespass to try title, whep- all of plaintiff's evid.-nce of titL the court shonM c,,n-tru tin- .-vid.-iic,- and instruct the jury as t Should not leave th.- matt-r to the jury. H..aumont I'asttm- < 268. W. K. p. M \VI. ..-.- a OOBtOMl between parties cl.-arly pr- iuti.-s on a certain i>int. it is error for the court to allou termine tl -.f s U ,-h duties a a matter of fact Lm , . . A charge which directed the jury t.. n a 1 th. wiitt.-n .-out' terms to arrive at the int.-ntion of the paiti.-s. wh-n takm in Other portions of the.-har^.-. was h.-ld not to submit th' ' ion of th- - to the jury. The charge ch-arly .letin-d all the issu- fully the rules by which the jury were to be governed in th. 538 CHARGING THE JL'KY. [ 567. ? 567. On the preponderance of evidence. In civil cases juries should ordinarily find in accordance with the preponderance of the evidence, and a charge requiring a plaintiff to produce " satisfactory evidence," or " clear and satisfactory evi- dence," might be understood to mean a higher degree of proof than is furnished by a preponderance of the evidence. This is especially true when the language is often repeated. 1 It is held, therefore, that it is error to charge that facts must be proved to the satisfac- tion of the jury, or that the jury must be satisfied ; 2 or that the facts must be conclusively proved. 3 AVhere a charge indicates the necessity of " full proof," and it appears that by that term was meant that the jury must be satis- fied in their minds of the existence of the fact, such charge is erroneous in requiring more than a preponderance in the testimony as the grounds of the verdict. 4 "When both parties introduce evi- dence sufficient, if true, to discharge any burden of proof cast on them by law, it is improper to give any charge on that subject. The issue is then wholly as to the weight of evidence and the cred- ibility of the witnesses. 5 in favor of the plaintiff or defendants.) Bender v. Peyton, 4 Civ. App. 57 (23 S. W. Rep. 222). Where the sole question to be submitted to a jury is one of fraud in making a conveyance, the instrument by which the conveyance was made being in legal form, its effect in law should be declared to the jury. H. & T. C. Ry. Co. v. Shir- ley, 31 S. W. Rep. 291. 1 McBride v. Banguss. 65 T. 174. A charge which specifically enumerates the facts alleged in plaintiff's petition, basing plaintiff's right to recover on satis- factory proof thereof, is not objectionable as presenting plaintiff's cause of ac- tion with undue emphasis. Gulf, C. & S. F. R. Co. v. Dunlap, 26 S. W. Rep. 655. 2 Feist v. Boothe, 27 S. W. Rep. 33; Fordyce v. Chancey, 2 Civ. App. 24 (21 S. W. Rep. 181): Oury v. Saunders, 5 Civ. App. 310 (24 S. W. Rep. 310); McGill v. Hall, 26 S. W. Rep. 132. 3 Greathouse v. Moore, 23 S. W. Rop. 226. Where a charge to the effect that, before plaintiffs could recover, the jury must be satisfied from the evidence that defendant's negligence caused the fire, and that plaintiffs were not guilty of contributory negligence, was qualified as follows: "And the destruction of the cotton by fire under this clause may be shown by circumstantial evidence suffi- cient in your opinion to justify the belief that the fire was caused by a spark or cinders coming from defendant's engine," this latter clause sufficiently indi- cated to the mind of the jury that by the word "satisfied" nothing more was icaiit than opinion or belief; and the charge as an entirety did not present i sible error. Martin v. Railway Co., 3 Civ. App. 133 (22 S. W. Rep. 195). In a mechanic's lien suit the court charged for the plaintiff if " substantial compliance" with his contract should be proved, but without defining the terra. This was not reversible error. Johnson v. White, 27 S. W. Rep. 174. An Instruction which places on the party the burden of showing facts by a pre- ponderance of "proof" instead of ' evidence," while containing an inaccuracy, is not ground for reversal. Flores v. Maverick. 26 S. W. Rep. 316. 4 Baines v. Ullman, 71 T. 529 (9 S. W. Rep. 543). W. U. Tel. Co. v. Bennett, 1 Civ. App. 558 (21 S. W. Rep. 699). ( MAUi.l.Ni. I | In detorminini: whether ;i deed was intended by tin- parties to it as a mortgage, it was error to instruct tin- jury, in nl,-,-t. that the instrument must !> regarded as a derd unless the preponderance of evidence .-Li,-! 'i shows that tin- same was intended lv the parties at the time of the execution to operate as a mortgage. A prepon- derance of evidence is sufficient, and the use of the word ..'../// in the charge was misleading. 1 Ueijuiring a full prepoiiderai !! ;; 568. Must apply to facts in evidence. A- a o-encral rule it is error to submit to tin- jurv an issue on which there is no evidence, although it may be presented bv the pleading: and in some cases it is said, without (nullification, that jiving of such a charge is cause for reversal, and in others, that it is Around for reversal if the jury were probably misled. 3 It is of no importance that the charge may l>e correct as an abstract prop- osition. 4 The charge should always have an application to fa evidence bearing on issues raised by the plead in ITS, and should not jjive the law on a hypothetical case not made by the evidence : % it should not consist merely of abstract propositions of law and utory enactments, but should be made to apply to the evidence in Prather v. Wilkins, 68 T. 187 (4 S. W. Rep. 252). 2 Ridgell v. Reeves, 2 App. C. C.. g 438. J Altgelt v. Brister. 57 T. 432; Blanton v. Mayes, 58 T. 422: Cook v. Dennis. 81 : Box v. Ward, 65 T. 159; G., C. & & F. Ry. ( ,, r. Greenlee, 70 T. 558 <8 S. W. IJ.-p. 129): G., C. & S. F. Ry. Co. v. Silliphant. TO T. 623 (8 & W. Rep. 673); Burns v. True. ~> < 'i\. App. 74 (24 S. W. Rep. 338), and many other cases. r.ltran v. Kllis. r,s T. ^4.-,; Mi-l.ain v. Mi-l)..w,-ll. ', T.'lOO (7 & W. Rep. 815h \V. I f. Tel. Ca v. Kendzora, 77 T. -J.'i7 (U S. W. Rep. 986). A ju.lKiii.Mit will not be reversed on account of a charge which is correct as applicable to the fact* in evj- t hough as an abstract legal pro|xition it might not le correct as applies- hi.- to a different Mat- of facts. Railway v. H.-witt. i? T. 473 (3 a W. Rep A ( liiir^.- ali-trartly ri^'lit ami ii|X3n the general sul>jM-t of controversy is not alw.iv- propi-r to U- given. The charge should apply to the case made in the md evidence. Mayor of Houston v. Railway Co., 84 T. 581 (19 & W. A T. C. Ry. Co. v. Rider, 62 T r, Barwj, 1 U. C. 28; Smith v. n. 1 U. C. 860; Lee v. Yandell. 6U T. 34 (6 S. W. Rep. 665). When a charge !-y the court presents n hy|Nitln-sis not authorized l>\ the recor.l, aii-l which from its nature as present nl may \\:\\>- intluenced the venlict. anil the error is pointed out aid -M -pt.-.l to .it th. for which the judgment may be re\.Tscd. Tli.- fact tli.it tin- trial ju.k-'. in rv aii instruction a-ki-d to con. , t th- i-rnn. -i.it. ^ In- opinion tliat there was evidrnci- to aiithori/f tin- diar-.-. is immaterial wln-n tin- record does not show sudi -\ idt-ncf. Tin- rror in this case c>i jury tliat it i- in-ulitf.-nri- in a railroad company to jM-rmit liru-l or lull weeds to grow upon it- ri-lit of way so as to ol.-truct tl ' mins. -tc.. there IM-IIIK ii" on th. -ulij. 70 T. -.-.' - s. v, th- dut> iiijr in employing and retainim: .mpli.y.-.-s i- . iron i- \\l\.-t\ tl: 'iceor \\.\ \ . \. Jilm.ire. ;.'T. :1. CHARGING THE JURY. [_ the case, and should explain the law as applicable to such evidence. 1 It is error to charge as to items of damage, such as the recovery of rent, loss of time, medical expenses, etc., when there is no evidence on the subject. 2 If there is no evidence of facts . pleaded on which a claim for damages is based, the court should in terms instruct the jury not to allow such damages. 3 When from the record it appears that a charge is irrelevant and calculated to lead the minds of the jury away from instead of t<>\vard the true issue involved, it will constitute cause for reversal unless it appears that the verdict was not influenced thereby. 4 The purpose of the charge of the court is to afford the jury the means of applying the law pertinent to the facts about which they are to deliberate, and which it is their exclusive province to weigh. A charge which is confusing and leaves the jury without guidance in their deliberations with reference to a material and disputed issue in the case constitutes reversible error. 5 569. Must be confined to the issues. It is improper to charge the jury as to the law applicable to an issue not before the court ; 6 the charge must be based on the plead- ings and the evidence. 7 When a charge presents a question out- side of the case as made by the pleadings, and upon which the ver- dict might have been found, a judgment based on such verdict will be reversed; 8 also where there is testimony showing that the jury were misled; 9 or where it is not clear that the jury were not misled. 10 1 Mitchusson v. Wadsworth, 1 App. C. C., 981. -Mo. Pac. Ry. Co. v. Lyde, 57 T. 505; Ft W. & D. C. Ry. Co. v. Greathouse, 82 T. 104 (17 S. W. Rep. 834): Fordyce v. Chancey, 2 Civ. App. 24 (21 S. W. Rep. 181): I. & G. N. Ry. Co. v. Lock, 20 S. W. Rep. 855; A., T. & S. F. Ry. Co. v. Click,- 5 Civ. App. 224 (23 S. W. Rep. 833); G., C. & S. F. Ry. Co. v. Barton, 23 S. W. Rep. 89. 3 W. U. Tel. Co. v. Kendzora, 77 T. 257 (13 S. W. Rep. 986). 4 Wegner v. Biering, 73 T. 89 (11 S. W. Rep. 155). 8 Henry v. Sansora, 2 Civ. App. 150 (21 S. W. Rep. (59). It is not good practice to give in charge general principles of law unless called for by the facts of the case. Nettles v. Somervell, 6 Civ. App. 627 (25 S. W. Rep. 658). See Hargis v. Railway Co., 75 T. 19 (12 S. W. Rep. 953), for a charge, set out in full, and com- mended for the absence of abstract propositions. The action was for damages for personal injuries received at a railway crossing. 6 Cannon v. Cannon, 66 T. 682 (3 S. W. Rep. 36): M., K & T. Ry. Co. v. Wick- liam. ','3 S. W. Rep. 917; G., C. & S. F. Ry. Co. v. Cash, 8 Civ. App. 569 (28 S. W. Rep. 387); G., C. & S. F. Ry. Co. v. Younger, 29 S.. W. Rep. 948. G.. II. & S. A. Ry. Co. v. Silegman, 23 S. W. Rep. 298; Dufford v. Herbert, 2 App. C. C., S 613: Ross v. Hawley, 3 App. C. C., g 108; Patton v. Gregory, 21 T. 513; Denham v. Trinity County Lumber Co.. 73 T. 78 (11 S. W. Rep. 151); Tex. & Pac. Ry. Co. v. French. 86 T. 96 (23 S. W. Rep. 642): G., C. & S. F. Ry. Co. v. Kiz- ziah, 4 Civ. App. 356 (22 S. W. Rep. 110; 26 S. W. k ;->. 242). 9 Loving v. Dixon, 56 T. 75; H. & T. C. Ry. Co. v. Terry, 42 T. 451. 3 Flint v. Van Hall, 4 Civ. App. 401 (23 S. W. Rep. 573). iLove v. Wyatt, 19 T. 312. 71.] CHAINING THE Jl UY. .', U 70. Must cover all the issues. The charge should always be so framed as t<> pr. the jurv all the issues made by the pleadings, if there be evidence under them, unless an issue In- abandoned, coneerninir which abandon- inent the jury should lie instructed. 1 It is not neeessarv to ci that an issue not before the jury should not be considered. - 1 material issue must not be withdrawn from the jury if there is anv evidence tending to support it;- 1 and a requested charge ignoring a material i>sue made by the testimony is properly refuse*!.* The failure to submit an issue made by the pleadings and dence will not be ground for reversal where no request was made that such issue be submitted.' 1 This is m accordance with a well lished rule to the effect that where the general charge is de- fective simply by reason of an omission, a party will not be heard to complain unless he has asked a special instruction." When the entire charge of a court is not incorporated in the record, the pre- sumption wiH be indulged that a proper charge was given in n to an issue about which the record contains no char:: .-' 571. Defining the issues. It is the duty of the court to evolve from the pleading the true issues arising thereon, and to submit the same to the jury, in- of leaving them to decide for themselves, from the legal ell. the pleadings, what those issues are. 8 When the issues involved in !I. & G. N. Ry. Co. v. Underwood, 64 T. 463: Smithwick v. Andrews, 488. When a petition claims exemplary damages for an alleged wrong, and a ,|U"stion e\i>t. a> to whether the evidence shows such facts as will sustain tin- claim. ;i charge should be given on that subject, unless, in eoiise.iu' i an oral statement made in court, tin- court by a charge withdraws the consid- eration of such claim for exemplary damages from tin- jury. L & O. N. Ky I'liderwood, 04 T. 463. G.. II. ,V s. A. Ky. Co. v. Croskell, Civ. A pp. 160 (25 a W. Rep. 480). town v. Railway Co.. 85 T 889 BO s. W. Kep. 80). 4\ViMiti-rs v. Hal.-. I!) S. \V. I " WilUiiismi v. .Jolm-m. \v. Rep Tex. & Pac. Ry. Co. v. Gay, 86 T. 571 rjr, s \\ . 1;. p. 599); Sayles' Tex ,v I 1 . l;\. Ca v. Lowry. til T. 1 r.i. \Vhere there is evidence tending to |.urcliascr from a v.-nilr" \\itti notice of a vendor's lien, the issue shouM IM- sul.i.iiltf.l to tin- jury. Morton v. l'i. Worth Kxpn ' In tin- charge of tin- court one allrp-il cau-r of action l>y tin- plaintiff was in ctr.-ct withdrawn from tin- jury: th.-\ u r. in-ti uctr.l to lin.l only upon an- other count. Siu-h ,vith.lra\val eliminate, 1 tin- count and the defense - aain"t it. and complaint cannot l.e ma.le that the ,i i in tUechai-e. <;.., Jb a F. By . Co. T. M. -T. 08(1H- HI- -.pei'ial X''".('. E. R. Co. v. HAT- - \V. I; ,,. : Barkley v. Tarrant Co.. 58 T. - > ~>1. In Austin Ca, 1 API'.. ; is h*-ld that it is not essential that the judgi> in charg- CHARGING THE JURY. [ 572, a cause are such as to require explanation to a jury, the proper practice is for the court to do this in a general charge, and not sub- mit the case to the jury entirely on charges asked by the parties- and given. 1 The better practice iy to make a charge to the jury complete in and of itself, instead of instructing them to predicate their verdict on facts pleaded, in such way as to require the jury to refer to the pleadings to understand the instructions. 2 The court should charge the jury in accordance with the inter- pretation of the pleadings acted upon by the parties. 3 g 572. Must not give undue prominence to facts and issues. A particular issue or fact should not be given undue prominence by repeated reference to it in the charge; 4 or by marshaling in con- secutive form every fact and circumstance that goes to sustain one party's case, thus presenting the facts in such a way as to give them a prominence to which they are not entitled. 5 It is improper to emphasize any particular portion of the evi- dence, unless it certainly establishes, as matter of law, some issue involved in the proceeding; but a disregard of this rule will only afford ground for reversal when it is calculated to mislead the jury. 6 It is not proper to group together parts of the testimony upon an issue in the case. Such practice is calculated to give undue empha- sis to such parts of the testimony. 7 A charge which gives undue prominence to isolated facts should be refused. The charge must not lead the jury to infer what the opinion of the judge is upon facts before them. 8 The propriety of calling the attention of a jury to isolated facts> with the statement that they are to be considered as evidence of fraud, or that they are to be considered as circumstances tending to show fraud, is doubtful in any case, unless the matter to which attention is called under the settled rules of law is prima facie evi- dence of fraud. Where the general charge fully informed the jury that they might look to all the circumstances in evidence to ascer- tain the real transaction between the parties, the validity of which was in issue, it was not error to refuse a charge calling attention to ing the jury should state to them what are the issues made by the pleadings; that they are informed of the issues by having the pleadings read to them. 1 Red us v. Burnett, 59 T. 576. 2 Tex. & Pac. Ry. Co. v. Tankersley, 63 T. 57. 3 Blum v. Whit worth, 66 T. 350 (1 S. W. Rep. 108). rdinarily the repe- tition in a charge of the elements of damage which the jurv mav consider will not require a reversal of a judgment rendered against the defendant; hut when the verdict seem- e\c.->-.jve, a reasonable presumption arises that the jury may have I.eeii influenced thereby. 3 The practice of trial judges, sometimes indulged in, of ch ing in suits for damages that the jury might find, if at ai:. plaintiff an amount not t' ; the sum claimed, has been .1 proved by the supreme court: but it veins that this alone would constitute no ca'use for reversing a judgment : lly when the result was a verdict greatly less than the amount claimed, ami not more than the evidence seemed to authori/e. 4 The jury are liable to be misled by such a charge into the belief that it is an intima- tion on the part of the judge that the evidence authori/es a r- ery of the full amount claimed, when in fact the amount is pi by the pleader beyond any reasonable calculation.* iGoodbar v. National Bank, 78 T. 461 (14 & W. Rep. 851). Action against a railway company for can-in;,' tin- death of one who was walking u|m the The court charged that tin- defendant might \te negligent from tin- main handling or propelling a car or detaching it from the engine. thrr matter. Tin- charge was erroneous, as it lai-1 to<> much -tress ujxin the |iarticular acts < : ligence claimed. St. 1... A. A: T. Ry. Co. v. Tavl.ir. -'I s. \\ H.&T. C. Hy. Co. v. U-irkin. ! T. HI. G., C. & S. V. li\. ',, x. ij,,r,|,,n. 7'i T. HI (7 S.W. Rep. 685). wman v. DodtOO.41 T. '.!: Tex. Cent. I .rn.'tt. - Willis v. M. N. ill In its ch.ir.-e t> the jury the roi, ruent of the natur-' of tin- -uit. use.l thi- lan r u.i. :-*uit by her next frien-1 again-t 'let.-n.lant in the -inn of SIIOMMI. f,,r . rt. tin alleged personal injuries." Tlie eighth paragraph u--.l the following language: "1 find for the plaintitr. the form <.f your verdict will ) : \\ .. the jm the plaintiff and assess her damages, first, for the inji, sequent suffering therefrom, in the -urn of dollar-.' tilling upthi- l.lnnk the amount assessed, whicirmut in no <>ed $3,000): - cond. for t juries to plaintiffs back and con- .jiu nt -ui! > 'es in the >1 [ CHARGING THE JUEY. [ 573. 573. When pleadings contain several combinations of facts. When the pleading of either or both parties contains several combinations of facts, either together or in several counts or pleas, each of which constitutes a cause of action or ground of defense, .and is sufficiently supported by the evidence to require a charge, :tnd upon which an issue has been formed, the charge should be so framed as to present to the jury, and require a finding by them. upon the issue made, upon each of said combinations of facts, so contained in the pleadings, which may be necessary to a decision of the case. 1 The courts have repeatedly deprecated the practice that prevails in some of the trial courts, in their charges to the jury, in carving out of the mass of evidence in the case certain facts, and instruct- ing the jury that they may consider such facts for certain purposes, or as tending to establish certain issues. The charge should submit the case upon all the facts and circumstances in evidence, leaving to the jury, in the exercise of their discretion, a determination of the facts and the weight to be given them. 2 It is error to so instruct a jury as to preclude them from consider- in.ii 1 a theory arising upon the evidence which is rational, consistent with other facts, and which, if believed, might have resulted in a Different verdict. 3 When the evidence is such that several deduc- ions might be drawn by the jury, it is the duty of the court to so : i truct the jury as to submit to them the several phases of the case made by the evidence under the pleadings, and to apply the law to the several deductions that might be drawn therefrom. 4 A- charge to the jury which confines them to consideration of one kind of evidence is erroneous, if evidence of a different kind, but relative to the same point, is adduced. 5 It is not necessary, nor is it practicable in every case, to present very phase of the case in one paragraph, nor does it conduce to clearness to attempt to do so. It is no objection to a charge that limitations, and distinctions are in separate paragraphs. 6 sum of dollars (filling up the blank with the amount found, which must in no event exceed 7,000). If you find for defendant, you will simply so say." The amount claimed in the petition was not given sufficient prominence in the ch.-irge to operate to the prejudice of the plaintiff in error. Texas Cent. Ey. Co. \. St uart. 1 Civ. App. 642 (20 S. W. Rep. 962). Rule 61. - 1 lurlbut v. Boaz, 4 Civ. App. 371 (23 S. W. Rep. 446); citing Gray v. Burk, 19 T. 228; Jacobs v. Crum, 62 T. 401; Hanna v. Hanna, 3 Civ. App. 51 (21 S. W. Rep. 720). 8 Leach v. Wilson County. 68 T. 353 (4 S. W. Rep. 613). Brackett v. Hinsdale, 2 U. C. 468. 5 Machon v. Randle, 66 T. 282 (17 S. W. Rep. 477). *L & G. N. Ry. Co. v. Brazzil, 78 T. 314 (14 S. W. Rep. 609). .4.J ( HAI:.,I.V, iiu. . ">74. On negligence. When th- issue is one of negligence or not, the court may define neo;liovn< : th:it is, it may inform the jury as to the degree of care or diligen.'.- ..! skill which the law demands of a person, and what duty it devolves upon him, and the jury are to find whether that duty has lieen performed. 1 A charge that does not instruct the jury as to the K-LTul effect of certain tacts in the case, nor give them to understand what weight should be given to certain testimony, can- not he considered as on the weight of evidence; so a charge which merely defines negligence in reference to the case made by the pleadings and evidence, without grouping or commenting on the tacts, hut which leaves them to be found by the jury, and leaves the jury to determine whether such facts constitute negligence as defined, is not upon the weight of evidence. It is the duty of the court to instruct the jury upon the law of the case. If the case is the nature of the act performed, the pla informed, and the extent of the danger and injury likely to result from a failure to use due care and |>rud.-m , to ;ivoid indicting injury on others. 1 Ry. Co. V. Booze i ') (8 S. W. Rep. 119). The degree of care incumbent on any per- son or corporation must be determined by the nature of tin- employment, the agencies used, the place where it is carried on, and the dangers to others to result from its conduct. It is not BCTOf t-> instruct the jury that it duty of a railway company to use great care and prudence in o|Tutin^ their tr.nns in stn-.-ts and at public places. G., IL & & A.Ry.Co. v. Matula, 79 T. 577 (15 S. \V. i Ordinary care is the care that a person of ordinary prudence won; un.iei -the same circumstances. The char-e or 1 1 miry care is that degree of care a person would use under similar in um. stance*" was erroneous as a 1,-tiniti.wu St. L,, A. \- T. I: FinU-y. 79 T. 85 (15 8. 066); nVomu-r %. Cook. -'> S. W.'ltep. ill:?. The u>e of the terms ordinary man and ordinary buxineaa man condemned. H. & T. C, Ry. Co. v. Smith, ?? T. 179 (1$ S. \V. Rep. 972). 85 54:6 CHARGING THE JURY. [ 574. Where the liability depends upon the existence and proof of gross negligence, the charge should contain a proper definition of gross negligence, otherwise the jury would be left to pass upon impor- tant rights without proper legal guidance. 1 Strictly speaking, negligence is a mixed question of law and fact. The jury are not at liberty to say that an act innocent and com- mendable in itself may constitute actionable negligence, but upon any given state of facts it is for the court to say whether negligence can be inferred legitimately, and for the jury to say whether it ought to be inferred. 2 There are cases in which, as matter of law, there being no controversy about the facts, a court would be au- thorized to instruct the jury that a certain state of facts or a cer- tain use of property did not constitute negligence, even in cases in which the acts complained of are not prohibited or enjoined by law. 5 The court may find that there is no evidence of negligence, and may thereupon refuse to submit the case to the jury.* When a case is submitted to the jury, the court is not permitted to charge whether the facts do or do not constitute negligence, in the absence of a statute or positive rule of law declaring the act or omission unlawful. 8 Where an act is an infraction of a positive Southern Cotton Press Co. v. Bradley, 52 T. 587; Hyatt v. Adams, 16 Mich. 199; Tex. & Pac. Ry. Co. v. Hill, 71 T. 451 (9 S. W. Rep. 351); Mo. Pac. Ry. Co. v. Brown, 75 T. 267 (12 S. W. Rep. 1117). A charge which first assumed a certain state of facts as constituting ordinary negligence, and which then instructed the jury that " gross negligence is a greater or higher degree of negligence than ordinary negligence," was held error, as containing no definition of gross neg- ligence. C. ross negligence is that entire want of care which would raise a pre- sumption of a conscious indifference to consequences. Such indifference is morally criminal, and if it leads to actual injury may well be regarded as crim- inal in law. Southern Cotton Press Co. v. Bradley, 52 T. 587. Gross negligence is an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others. L & G. N. Ry. Co. v. Cocke, 64 T. 151. The most approved definition of the term is that given by Judge Story, in his work on Bailments, section 17, and which is generally adopted: "Gross negligence is the want of slight care and diligence." Tex. & Pac. Ry. Co. v. Burnes, 2 U. C. 239. Gross negligence, to be the ground for exemplary damages, should be that en- tire want of care which would raise the belief that the act or omission com- plained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected thereby. It was error, therefore, for the court to define gross negligence as a total want of ordinary care. Mo. Pac. Ry. Co. v. Shuford, 72 T. 165 (10 S. W. Rep. 408); Same v. Mitchell, 72 T. 171 (10 S. W. Rep. 411). 2 S. A. & A. P. Ry. Co. v. Long, 4 Civ. App. 497 (23 S. W. Rep. 499). Tex. & Pac. Ry. Co. v. Levi, 59 T. 674. 4 Mo. Pac. Ry. Co. v. Lee, 70 T. 496 (7 a W. Rep. 857). It seems, however, that the case must be a very clear one to justify the court in withdrawing it from the jury. Tex. & Pac. Ry. Co. v. Murphy, 46 T. 356. Calhoun v. Railway Co., 84 T. 226 (19 S. W. Rep. 341); Tex. & Pac. Ry. Co. v. 575.] CHARGING THE JCRT. statute, it constitutes negligence of itself, and the court should so charge the jury. 1 It is error to attempt to define duties, neglect of which would constitute negligence, unless such duties are enjoined by law. To say that it is the duty of a person, under a given state of facts, to do certain things is equivalent to a declaration that he is guilty of negligence if he omits to do them. 2 The court cannot specify what acts would have been prudent on the part of one about to cross a railway track, or what imprudent. The jury must be left to consider the facts in their own way, to rea- son for themselves, and to form their own conclusions from the evi- dence, without the aid of the court, as to whether due care appears ! or the want of it, which is negligence. If the law should make cer- tain acts or omissions negligence iptso fr.cto, the court should then direct the jury that the finding of such acts or omissions would be a finding of negligence. But the court would transcend its author- ity if it instructed the jury that the omission of an act of prudence would amount to negligence unless the law declared it to be so.' A carrier of passengers is not an insurer of the safety of his pas- sengers, but the law exacts a high degree of care. 4 576. Contributory negligence. The court determines whether the testimony calls for a charge upon the subject of contributory negligence, and, on defining the meaning of the term, leaves it to the jury to say, from all the facts in evidence, whether plaintiff was guilty of contributory negligence. It is error to tell the jury that the facts alleged or proved, or a state of facts set forth in the charge, amounts to contributory neg- ligence. 4 To constitute contributory negligence there must be the want of ordinary care on the part of the plaintiff, and it must be a proximate cause of the injury; that is, a concurring cause; or in other words, plaintiff must be guilty of want of ordinary care, and Murphy, 46 T. 356: Dillingham v. Parker. 80 T. 572 (16 a W. Rep. 885); O., C * a F. Ry. Co. v. Oreenlee, TO T. 553 (8 S. W. Rep. 129); Campbell v. TrunM. \V. Rep. 863); W. U. TeL Co. v. Cooke, 22 & W. Rep. 1005; Houston City Ry. Co. v. Farrell, 27 & W. Rep. 942. a A. & A. P. Ry. Co. v. Long, 4 Civ. App. 497 (23 S. W. Rep. 499); Garteiser T. Railway Co.. 2 Civ. App. 280 (21 8. W. Rep. 631). Mo. Pac. Ry. Co. v. Lee, 70 T. 496 (7 S. W. Rep. 857); G..C. A & F. Ry. Co. T. Shieder, 80 S. W. Rep. 902; Tex. & Pac, Ry. Co. v. Wright, 62 T. 515; O.. H. & a A. Ry. Co. v. Forfeit, 72 T. 844 (10 & W. Rep. 207); O., C. A a F. Ry. Co. v. Ander- son. 76 T. 244 (13 & W. Rep. 196). > ( i., H. A & A. Ry. Co. v. Porf. rt. 72 T. 844 (10 & W. Rep. 907); G., C. A & F. Ry. Co. v. Anderson, 76 T. 244 (18 a W. Rep. 198). L & G. N. Ry. Co. v. Halloren, 53 T. 46; L & G. N. Ry. Co. v. Underwood, 64 T. 463; Galveston City R. Co. v. Hewitt, 67 T. 473 (8 a W. Rep. 705). Denham v. Trinity County Lumber Co., 78 T. 78 (11 a W. Rep. 151); L & G. N. Ry. Co. v. Dyer. 76 T. 156 (18 a W. Rep. 877); Bonner T. Glenn. 79 T. 581 (15 a W. Rep. 572); W. U. TeL Co. v. Lydon, 83 T. 864 (18 a W. Rep. 701). 54rS CHARGING THE JUKY. [ 575. this want of ordinary care must proximately contribute to the in- jury. 1 By proximate cause is meant the efficient cause, without which the injury would not have happened. 2 Where one is injured by the negligence of another, the exercise of ordinary caution by the injured party to avoid the danger is all that the law requires in order that he may be protected against the consequences of having contributory negligence imputed to him. Though the negligence of one who has been injured by another may have contributed to the injury, yet if the person inflicting it dis- covers the peril of the other in time, by the reasonable exercise of the means at hand, to prevent the injury, the failure to use such means must be regarded as the proximate cause of the injury, for which the person inflicting it is liable, although the injured party was guilty of contributory negligence. 3 Although the question of contributory negligence proper is one of fact for the jury, under appropriate instructions, yet the question of remoteness of damage is one of law to be decided by the court. 4 The defenses of "contributory negligence" and of "assumed risk " are separate and distinct. The doctrines are applicable under different conditions. In the case of master and servant, " contribu- tory negligence " implies the existence of negligence on the part of i G., C. & S. F. Ry. Co. v. Danshank, 6 Civ. App. 385 (25 S. W. Rep. 295); H. & T. C. Ry. Co. v. Smith, 52 T. 178; L & G. N. Ry. Co. v. Garcia, 75 T. 583 (13 S. W. Rep. 223); Martin v. Tex. & PaaRy. Co., 87 T. 117 (26 S. W. Rep. 1052). 2 St L. & S. F. Ry. Co. v. McClain, 80 T. 85 (15 S. W. Rep. 789); Campbell v. McCoy, 3 Civ. App. 298 (23 S. W. Rep. 34); Houston City St. Ry. Co. v. Richart, 29 S. W. Rep. 1040. 3 Hays v. Railway Co., 70 T. 602 (8 S. W. Rep. 491). 4 Brandon v. Manufacturing Co., 51 T. 121. An act is the proximate cause of an injury when the injury is the natural and probable consequences of the neg- ligence or wrongful act, and, in the light of attending circumstances, ought to have been foreseen. Barnes v. T. & N. O. Ry. Co., 63 T. 660; Johnson v. Rail- way Co., 2 Civ. App. 139 (21 S. W. Rep. 274). When one has violated a duty im- posed upon him by the common law, he should be held liable to every person injured thereby whose injury is the natural and probable consequence of his misconduct; and this liability extends to such injuries as might reasonably have been anticipated, under ordinary circumstances, as the natural and prob- able result of the wrongful act. (Citing McDonald v. Snelling, 14 Allen, 290; Ban-on v. Eldredge, 100 Mass. 455; Kellogg v. C. & N. W. Ry. Co., 26 Wis. 223, 278.) If, subsequently to the original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote. The original wrongful or negligent act will not be regarded as the proximate cause, where any new agency, not within the reasonable contemplation of the original wrong-doer, has intervened to bring about the injury. (Citing Insurance Co. v. Tweed, 7 Wall. 52. and Brandon v. Manufacturing Co., 51 T. 121.) Where, however, the intervening cause and its probable or reasonable consequences are such as could reasonably have been anticipated by the original wrong-doer, the causal connection be- tween the original wrongful act and the subsequent injury is not broken, and an action may lie therefor. Scale v. G., C. & S. F. Ry. Co., 65 T. 274. 576.] CHARGING THE JURY. an injured servant, co-operating with that of the master, and thus aiding in producing the injury. The doctrine of "asMim.-.l risk" obtains without necessary reference to the existence of negligence. If the servant, with knowledge of a defect in the master's premises, and of the danger and risk incident thereto, continues in the serv- ice of the master without proper notice to tin- lattrr, lu assumes the risk incident to the service and growing out of th<> v\i>t.-nce of the defect; and this without regard to the degree of care which he may exercise in the performance of his labors. When the de- fense of "assumed risk " is set up, a charge is erroneous which con- founds it with the defense of "contributory negligent* 576. As to damages. It is the duty of the court in all cases involving a question of damages to give definite instructions as to the correct measure of damages applicable to the facts of the case. This is a matter of law. and for the court alone to determine; the province of the jury is to estimate the amount of damage sustained in accordance with the rules submitted to them by the court. 2 It is not sufficient to charge the jury that they may find such damages as are the actual, natural, proximate result of the acts complained of; 1 and in a suit for dam ages for personal injuries, a charge that if the jury rind for plaint- iff they may award actual damages in any amount they may deem proper, leaving them at liberty to award the full amount claimed. is erroneous. 4 Where the testimony warrants a charge upon both actual and exemplary damages, the jury should be instructed to keep their ^ Tex. & Pac. Ry. Co. v. Bryant, 8 Civ. App. 184. Texas Trunk R Co. v. Elam, 1 App. C. C., g 446; O., H. & S. A. Ry. Co. v. Le Gierse, 51 T. 189: H. & T. C. Ry. Co. v. Nixon, 52 T. 19; G., H. & S. A. Ry. Ca v. Scbrader, 1 App. C. C., g 1148; Ft. W. & D. C. Ry. Ca v. Scott, 2 App. C, C., 148; O., H. & S. A. Ry. CV \pp. C. i '.. < 40S. The giving of two methyls of estimating damages is immaterial when- 1 lu- y produce the same result. 1 & R G. Ry. Co. v. Andrews, 29 S. W. Rep. 920. Mo. Pac. Ry. Co. v. Cox, 2 App. C. C., Js 288. *Q., C. & S. F. Ky ( !o v. H,. a ;f on tin- w.-iglit of t- vidence, in a suit to recover damages for personal injuru-s, for tin- trial judgi- t*> I-MUIU.T at.' tin- fa<-ts which the jury miht consider in estimating damages, when the charge does not assume their existence. l>ut instructs the jury tl:at they must look to the evidence for them. Nor is it error to t. -11 th jury that, if tin- in- juries complained of \\ . r- pn-v.-il. th- .lama^f n-sultinu fr..ia tlu-m might be determined from the general knowledge and experience of the jury. Newman v. Dodson, 61 T. 91. Whi-r.-th-i-oiirt chared th.- jury to find damages within the limits stated, but omitted to charge on the m.MMin- an 1 l.m.nts of damages, it \\a li. Id that as there was no aJlinnativ.- ( rn.r in th- < liar^--. tl rr.T \-n\ *>aion. and the appellant not having asked a q ' was no ground of complaint. C.. l 1 . Jfc S. F. Ry. Co. \. V- l^p. 934. 550 CHANGING THE JUKY. [ 577. findings separate, so as to show separately the amount of each kind of damages found. 1 When exemplary damages are not claimed, it is not error for the court to fail to give a charge distinguishing be- tween actual and exemplary damages. 2 An objection that the trial court did not direct the jury to separate the actual from the exem- plar v damages, in their verdict, comes too late when not raised until after appeal. The point should have been made in the court below by asking an instruction covering it. 3 It is error to instruct the jury, in a suit for damages against a corporation, in which exemplary damages are claimed, to return a verdict for such damages as they believe from the evidence the plaintiff is entitled to, without furnishing them a rule for their guidance in discrim- inating between actual and exemplary damages. 4 In an action for exemplary damages for wrongfully suing out a writ of attachment, an omission to charge on one of the essential elements of damages in such case was held error. 5 When, in an action on account, the charge of the court improp- erly limits the amount of recovery to a spcified amount, the judg- ment will be reversed, unless on a consideration of the evidence it should manifestly appear that a verdict of a different amount than that found would have been so clearly erroneous that it should have been set aside. 6 577. Measure and elements of damages. If injury necessarily results to the person, property or reputation of one person from the acts of another, violative of a right secured by contract or the general law of the land, the injured person is entitled to damages to compensate him, whatever may be the ele- ments which make up the injury and form the basis of damages. 7 i G., H. & S. A. Ry. Co. v. Le Gierse, 51 T. 189. 2L & G. N. Ry. Co. v. Smith, 02 T. 252. J Belo v. Wren, 63 T. 686. The charge directed the jury to separate their find- ings of actual and exemplary damages, "in order that the amount of either or both may be known." Taken with the remainder of the charge, the jury could not have understood that they were expected to find both actual and exemplary damages. San Antonio & A. P. Ry. Co. v. Kniffen, 4 Civ. App. 484 (23 S. W. Rep. 457). That the charge named the limit of the claim for exemplary damages, and did not direct the jury to find separately the actual and exemplary damages, there being no request for more definite instructions, is no ground for reversal. The verdict was only for the amount of actual damages claimed. Heiligmann v. Rose, 81 T. 222 (16 S. W. Rep. 931). G., H. & S. A. Ry. Co. v. Dunlavy, 56 T. 256. 'Elser v. Pierce, 2 App. C. C., 739. In an action for wrongful death, an in- struction to the jury to allow "such damages as you may think proportioned to the injury," while too broad, is sufficient in the absence of a request for a charge specifying the elements of damages. G., H. & S. A. Ry. Co. v. Worthy, 27 S. W. Rep. 426. Burnett v. Waddell, 54 T. 273. 7 Stuart v. Telegraph Co.. 66 T. 580 (18 S. W. Rep. 351); Aggs v. Shackelfori County, 85 T. 145 (19 S. W. Rep. 1085). 73.] HR JURY. If a tort be committed deliberately, recklessly, or by wilful negli- gence, with a present consciousness of invading another's right, or of exposing him to injury, exemplary damages may l>e reco\v But exemplary damages cannot be recovered without proof of act- ual damai:e>, J and the rule is that exemplary damages will not bo awarded for the breach of a contract. 3 Courts generally are inclined fixed sum designated as damages in a contract as a pen alty. and to hold that the real damages are to be inquired of profits may lie allowed as damages for breach of con: but the profits must be such as are the direct and immediate fruits of the contract.* AVhere one's rights of person or property are violated he is en- titled, at l>ast, to nominal damages, 8 and whatever is reco\ lieyond this as actual damages must be proved; and the measure of actual damages is compensation for all loss which is the \>*. t of the act complained of. 7 Among the elements of actual damaurs which may be considered are permanent injury to person and property, diminished capacity to earn money, loss of sen of a minor, loss of earnings of a deceased, loss of profits at credit, loss of time and increased expense, resulting disease, mental and physical suffering, etc. 8 ? 578. Parties may ask instructions; if refused, no exceptions re- quired. Hither party may present to the judge, in writing, such inst tions as he desires to be given to the jury. The judge may such instructions, or a part thereof, or he may refuse to give them, e proper, and must read to the jury such of them as he may give. 1 * "When the instructions asked, or some of them, are re- Jacobs v. Crum, 62 T. 401; L & G. N. Ry. Co. v. Garcia, 70 T. 207 (7 S. \V. Rep. 2 Flanagan v. Womack, 54 T. 45; G., C. & 9. F. Ry. Co. v. Levy, 59 T. M8; (Jiranl v. Moore. 86 T. 675 (26 S. W. Rep. 945); Jones v. Matth, -ws. :: T. 1 (18 8. W. Rep. -S-.M): Kit/, v. City of Austin. 1 Civ. API*. 455 (20 a \V. K-p. lOttX Peterson v. Thomas. 24 S. \V. IJ.-p. H-M: a A. & A. P. Ry. G W. K,-p. 4.17 >: H. & T. C. Ry. Co. v. Shirl.-y. The t.-n.l.-nry of the decisions, however, in those states in which technical for' union have been abolished, is to allow exemplary damages where a bm Contract is attended with circumstances of aggravation. G., C, & S. F. Ry. Ca v. Levy. 59 T. -man. 63 T. 176: Dietert v. Fri-lay. -'-' S. W. Rep. 291. sOVomu-r v. Smith. *4 T. -.:w d'.aW. Rep. 168); Catesv.Spar* T.6I9 - \V. H,-p. *.!; : \v. r. T.>1. Co. v. Bow, n. M T J7 (l S. W. Rep. 554); Swasey \|.p. C. C., 22*'. ^Illls v. lI.-ri-ul.-> It,. ii Work-. j'p.683 \V. K-p 1007). Hope v. AH.-X ulerson, 80-T. 224: W. T. R. Co. v. Shir!- y. r. T :r.T. Smith v. Sherwood, 2 T. 460. 'See Savior,' Civil \> R a 1319. R -quested instructions must be signed by counsel T. A P. Ry. 552 CHARGING THE JURY. [ 578. fused, the judge must note distinctly which of them he gives, and which he refuses, and subscribe his name thereto ; such instructions are to be filed with the clerk, and constitute a part of the record of the cause, subject to revision for error without the necessity of taking any bill of exception thereto. 1 When a full charge upon the issues has been made, so far as the evidence adduced, tending to establish them, may require, the court should not encourage the asking of additional charges covering the same ground substantially, and charges asked and not given should not be read in the hearing of the jury, or taken by the jury in their retirement. 2 Co. v. Mitchell, 26 S. W. Rep. 154; Redus v. Burnett, 59 T. 576; Houston v. Blythe,. 60 T. 505. They need not be signed, if signed by the judge and marked " given." G., H. & S. A. Ry. Co. v. Neel, 26 S. W. Rep. 788. The court should give or re- fuse the instructions without alteration. Trezevant v. Rains, 25 S. W. Rep. 1092; Cotton Press Co. v. Bradley, 52 T. 587. In other cases it is said that the court may modify the instruction, but is under no obligation to do so. Brown- son v. Scanlan, 59~ T. 222; Mo. Pac. Ry. Co. v. Cullers. 81 T. 382 (17 S. W. Rep. 19); McConnell v. Bruggerhoff, 1 App. C. C., 1006; G., H. & S. A. Ry. Co. v. Schra- der, 1 App. C. C., 1148. Complaint cannot be made that -a charge asked was given with modifications, unless it was error to refuse the charge as asked, or that the party had a right to have the charge given as requested. Willis v. Hudson, 72 T. 598 (10 S. W. Rep. 713). Where a charge is requested and the court modifies it and then gives the modified charge to the jury, the action of the court should be shown; i. e., the precise alteration or addition by the court should appear. Mo. Pac. Ry. Co. v. Williams, 75 T. 4 (12 S. W. Rep. 835). The rule is that if part of a requested charge is incorrect, and is so connected with other parts as not to be easily separated, the whole may be rejected. Brown- son v. Scanlan, 59 T. 222; Rosenthal v. Middlebrook, 63 T. 333; Hamburg v. Wood, 66 T. 168 (18 S. W. Rep. 623); Mo. Pac. Ry. Co. v. Cullers, 81 T. 382 (17 S. W. Rep. 19): McWhorter v. Allen, 1 Civ. App. 649 (20 S. W. Rep. 1007); Yar- borough v. Weaver, 6 Civ. App. 215 (25 S. W. Rep. 468); Lanyon v. Edwards, 26 S. W. Rep. 524; I. & G. N. Ry. Co. v. Neff, 26 S. W. Rep. 784.' If the objection- able paragraph can be readily separated it is error to refuse the whole. Burn- ham v. Logan, 30 S. W. Rep. 97 (29 S. W. Rep. 1067). 1 R S. 1320; Rule 54. The indorsement of the words given or refused shows the disposition made of the requested instructions so as to subject the action of the court to revision on appeal. The indorsements ought to be signed by the judge. Thompson v. Chumney, 8 T. 389. 2 Rule 62. The giving of special instructions on points covered by the general charge is not to be commended, but, unless they are erroneous or objectionable in form, they furnish no ground for reversal. McBride v. Banguss, 65 T. 174;. Tex. & Pac. Ry. Co. v. Medans, 64 T. 92; N. Y. & Tex. Steamship Co. v. Island City Boating, etc. Ass'n, 2 Civ. App. 490 (21 S. W. Rep. 1007); Tex. & Pac. Ry.. Co. v. Raney, 23 S. W. Rep. 340; Maes v. Tex. & N. O. Ry. Co., id. 725. Where portions of the charge given were calculated to mislead the jury, although the view of the law intended to be presented was correct and would have been rightly understood by one of legal training, a special charge clearly presenting the law. being asked, should have been given. Willis v. McNeill, 57 T. 4Q~>. Where the testimony tends to show facts which if found constitute a complete defense, the defendant is entitled to have a special charge upon such issue, and a refusal to give such charge is reversible error where the general charge fails- 579.] CHARGING THE Jl 553 579. Special instructions must be requested, when. It has been held in a lon^ line of decisions that a charge correct so far as it applies to the facts, but omitting to state the law appli- cable to an issue raised by them, furnishes no ground for reversal, unless proper instructions relating to the matter omitted be asked and refused. Whatever exceptions there may be to this rule, none of them embrace a case in which the undisputed evidence t lishe* the facts to which the omission relates. 1 The rule is that where the defect in the general charge is simply one of omission, a party will not be heard to complain unless he has asked a special instruction. 2 Where a charge is erroneous or misleading it does not devolve upon the party injured to request its correction in an- other charge. It is only where a charge is incomplete, but correct so far as it goes, that the defect must be sought to be corrected l>y asking a charge supplying the defects. 8 An imperfect charge,. to present clearly the law upon such issue. W. U. TeL Ca v. Andrews, 78 T. 80S . 14 S. \V. Rep. 641). The refusal of a requested instruction is not' reversible error, unless it be shown that injury may have resulted. McConnell v. Bruggerhoof. 1 App. C. C., 1007. i Tex. & Pac. Ry. Ca v. Gay. 86 T. 571 (26 S. W. Rep. 599). 2 Tex. & Pac. Ry. Co. v. Casey. 52 T. 113: Emlick v. Kndick. 61 T. 559; Van Al- styne v. H. & T. C. Ry. Co., 56 T. 374; San A. St Ry. Co. v. Helm, 64 T. 147; L & G. N. Ry. Co. v. Leak. 64 T. 654; L. & L. & G. Ins. Co. v. Ende. 65 T. 118; fhulk v. Foster, 2 U. C. 704; Smith v. Caswell, 67 T. 567 (4 a W. Rep. 848): I'm Gunter, 77 T. 490 (14 S. W. Rep. 127); Tex. & Pac. Ry. Co. v. Brown. 78 T. 897 (14 a W. Rep. 1034): Mayer v. Walker, 82 T. 222 (17 a" W. Rep. 505); G., C. A Ry. Co. v. Jones, 1 Civ. App. 372 (21 S. W. Rep. 145); G.. H. & a A. Ry. Ca T. Daniels, 1 "Civ. App. 695 (20 S. W. Rep. 955): I. & G. N. Ry. Ca v. Smith. 1 S. \V. Rep. 565: Reed v. Hardeman. 5 a W. Rep. 505; Myer v. Fruin, 16 a W. Rep. 868; Banana Ca v. Wollfe, 22 a W. Rep. 269; McLane v. Elden, 28 a W. K- i Richardson v. Jankofsky, 23 a W. Rep. 815; Blum v. Jones. 28 a W. Rep. 844; G., H. & S. A. Ry. Co. V. McMonigal, 25 a W. Rep. 341 ; M .. K. & T. Ry. Ca r. Pfluger, 25 a W. Rep. 792: Temploton v. Green. 25 a W. Rep. 1' -on T. Whit-. 27 S. W. Rep. 174; Willis v. Haas, 27 S. W. Rep. 268. 'Alexander v. Robertson. 86 T. 511 (26 a W. Rep. 41 1; M.. K. & T. Ry. Ca T. Hirschoffer. 24 a W. Rep. 577; I. & G. N. Ry. Ca v. Welch. 86 T Rep. 390). When a charge of the court, though correctly stating the law, may. by reason of its general terms, be defective as applicable t. th< caa made I y the evidence, it is the right of the party complaining to supply iU defect* by asking further instructions; failing in this, he cannot c omplain. Tex. & Patv Ry. Co. v. Beard, 68 T. 265 (4 S. W. Rep. 483). If the ju.lp- vn Ins ,-ha.rg* under- takes to state to the jury the issues made by the pleadings, and the charge M given is objectionable, either from umitting ;i part of surh issues or from stat- ing them incorrectly, the proper remedy to apply i> t-> rail court to the error by requesting a proper charge at the time. If that done, as a general rule such omission will not be regarded groin mat Milmo v. Adamv ; (15 a W. Rep. 690). The better practice in suits for damages for personal injuries is for a party who isdisapp .mte 1 with Die terms in which the trial ju lp> has st jury the rule to be followed in estimating damages, to at once ask him to give to the jury, in addition, a carefully drawn instruction embracing the rule to b 554 CHARGING THE JURY. [ 580, 581. though properly refused, should be considered as a request by coun- sel made to the court to charge the jury upon the issue to which such charge was directed. 1 g 580. Need not be repeated. Where a full and correct charge has been given, the judge may and should refuse to repeat it, or any portion of it. 2 Abstract propositions of law asked by counsel to be given as instructions to the jury, though correct as applicable to minor issues, should be re- fused when the law has been fairly presented in the main charge of the court, as their tendency is to distract the attention of the jury by giving undue prominence to such issues.- 1 It is only where the repetition of instructions gives undue prominence to one phase of the case, calculated to prejudice a party by inducing the -jury to believe the issue so presented is the controlling one, that such ad- ditional or repeated instructions are objectionable. 4 581. Misleading; harmless error. All that is required is that the charge be correct in its applica- tion to the particular case; and the mere occurrence of an imma- followed in estimating the damages, as he believes it to be. Galveston Oil Co. v. Malin, 60 T. 645. i G., C. & S. F. Ry. Co. v. Hodges, 76 T. 90 (13 S. W. Rep. 64); Kirby v. Estill, 75 T. 484 (12 S. W. Rep. 807); Schneider v. McCoulsky, 6 Civ. App. 501 (26 S. W. Rep. 170); Austin & N. W. Ry. Co. v. Beatty, 6 Civ. App. 650 (24 S. W. Rep. 934). 2 E. T. Fire Ins. Co. v. Dyches, 56 T. 565; Tucker v. Hamlin, 60 T. 171; School- her v. Hutchins, 66 T. 324 (1 S. W. Rep. 266); Hays v. Hays, 66 T. 606 (1 S. W. Rep. 895); I. & G. N. Ry. Co. v. Eckford, 71 T. 274 (8 S. W. Rep. 679); Tex. Mex. By. Co. v. Douglass, 73 T. 325 (11 S. W. Rep. 333); Rousel v. Stanger, 73 T. 670 (11 S. W. Rep. 970); Tex. T. Ry. Co. v. Johnson, 75 T. 158 (12 S. W. Rep. 482); Mo. Pac. Ry. Co. v. Henry, 75 T. 220 (12 S. W. Rep. 828); Tex. Pac. Ry. Co. v. Over- heiser, 76 T. 437 (13 S. W. Rep. 468); G., C. & S. F. Ry. Co. v. Hudson, 77 T. 494 (14 S. W. Rep. 158); G., C. & S. F. Ry. Co. v. Locker, 78 T. 279 (14 S. W. Rep. 611); Wilson v. Lucas, 78 T. 292 (14 S. W. Rep. 690); Goodbar v. National Bank, 78 T. 461 (14 S. W. Rep. 851); L & G. N. Ry. Co. v. Kernan, 78 T. 294 (14 S. W. Rep. 668); Callahan v. Hendrix, 79 T. 494 (15 S. W. Rep. 593); Bonner v. Glenn, 79 T. 531 (15 S. W. Rep. 572); Tennent S. & E. Shoe Co. v. Partridge, 82 T. 329 (18 S. W. Rep. 310); Smith v. Traders' Nat. Bank, 82 T. 368 (17 S. W. Rep. 779); Tex. & Pac. Ry. Co. v. Brick, 83 T. 598 (20 S. W. Rep. 511); Hernsheim v. Babcock, 2 S. W. Rep. 880; Smith v. Eckford. 18 S. W. Rep. 210; Rio Grande B. & T. Co. v. Varela, 22 S. W. Rep. 99; G., H. & S. A. Ry. Co. v. Tuckett, 25 S. W. Rep. 150; Stephens -r. Bridge, 4 App. C. C., 82. Newman v. Farquhar, 60 T. 640: Traylor v. Townsend, 61 T. 144. Ratto v. Bluestein, 84 T. 57 (19 S. W. Rep. 338); Jacobs v. Crum, 62 T. 401; McBride v. Banguss, 65 T. 174 It is not error for the court to allow special charges containing a " more specific definition " and a fuller and more particu- lar explanation than are contained in the general charge. Martin-Brown Co. v. Wainscott, 66 T. 131 (1 S. W. Rep. 264). It is not error to refuse a charge which, though abstractly correct, would tend to eliminate from the consideration of the jury matters necessarily connected with the subject-matter, and proper to be considered in determining the right to recover, when in the general charge already given the jury has been properly instructed. Mo. Pac. Ry. Co. v. Corn- wall, 70 T. 611 (8 S. W. Rep. 312). 581.] CHARGING THE JURY. 555 terial error, or an error in some matter of minor importance, which manifestly has had no influence upon the decision of the case, will not authorize a reversal, though assigned as error; nor will error which has been acquiesced in by the parties at the trial, though ;ird as error, when there is no good reason to apprehend that it may have misled the jury to the prejudice of the partv. 1 Neither ran it be assigned as error that the court omitted instructions which might with propriety have been given, when it does not ap- pear that the jury have in consequence misapprehended the l.i the case. 2 If the jury have been misled by a charge which is cor- rect as an abstract proposition, or their attention has e\ i.l.-ntls b.-cii withdrawn from a matt-rial inquiry, and their verdict n have been different in the absence of the charge, a now trial will O ' be granted/ Where, however, the verdict is authorized by the J'arts, and the justice of the case has been attained, the judgment will not be reversed on account of an erroneous charge. 4 1 Hollingsworth v. Holshausen, 17 T. 41; Mercer v. Hall, 2 T. 2*4; Jones T. Thurmond's Heirs, 5 T. 818; Able v. Lee, 6 T. 427; Todd v. Caldwt-ll. 10 T. 286; Mills v. Ashe. 16 T. 295; McFarland v. Wotr..rd. Irt T. W:-. Thomas v. Imrn T: Bagly v. Birmingham. 23 T. 452; Fort v. Barnett. 23 T. 480: 1 T. Blocker, 23 T. :>.?,>; Warren v. Smith, 24 T. 484; Zeigler v. Stefan. ., Loper v. Robinson. 54 T. 510; City of Oalveston v. Morton, 58 T. 409; 11., E, & W. T. Ry. Co. v. Hardy, 61 T. 230: Dawson v. Sparks, 1 U. C. 785; Lousataunnu v. Lambert, 1 Civ. App. 434 (20 S. W. Rep. 937). Where the instructions to the jury are clearly erroneous and calculated to mislead, to the injury of a party, to sanction the judgment which follows it should be clear that such a conse- quence did not in fact ensue from the error. Hudson v. Morris, 55 T. 595. That the testimony may preponderate in favor of the verdict will not sustain it when an erroneous charge may have influenced the jury in the finding. Dwyer v. Continental Ins. Co., 57 T. 181. Unless it is made to appear that an erroneous charge, which was calculated to mislead the jury, did n. effect, the judgment will be reversed. The burden of showing that no injury resulted is, in such case, on the appellee. Q., C. & 8. V. Uy. < > r, t .r. . idee, 68 Franklin v. Smith, 1 U. C. 229; Linney v. Wood, 66 T. 22 (17 S. W. R*p. 2 Robinson v. Varnell, 16 T. 882; Cole v. Cole, 17 T. 4. It is the dutj of the party desiring additional instructions to ask for them. L. & L. A G. Ins. Co. T. Ende, 65 T. 118; Cockn-ll v. Cox, 65 T. 669; Jackson v. Di-sli.nd-. I U. I Sanger v. Craddock, 2 S. W. Rep. 196; Shumard v. Johnson. 66 T. 70 (17 a W. Rep. 398). Spence v. Onstott, 3 T. 147; Chandler v. Fulton. 10 T. 2: I*e v. Haimlt T. li:{; Ponton v. Ballard, 24 T. 619; Keyser v. Pilgrim, 23 T. S \u.sim v. Talk 26 T. 127. James v. Thompson, 14 T. 463; Duffell v. Noble, 14 T. 64" n. f. T. 480: Kisk v. Holdi-n. 17 T. 408. A proper verdict will not ho disturbed in thy appellate court for the reason that it was rendered in disregard or contraven- tion of an erroneous charge of the court below. Men ; \Vli.-n it is manifest that an .rn>u..,us charge worked no injury, or where no other conclusion than that am\<-d at by the jury can l l.- k 'ituiiat<-ly deduced from the facts, the judgment will not be reversed. U., H. & S. A. Ry. Co. v. Delahunty, 53 T. 206. 556 CHARGING THE JUKY. [ 582. An erroneous charge upon a material issue is not cured by a con- tradictory charge given at the request of the party injured by such charge. 1 It is error to give conflicting and irreconcilable charges. 2 Where contradictory charges are given which may be material, it ssems a reversal should follow on appeal. The proper way to correct an erroneous charge is to withdraw it from the jury. 3 A verbal withdrawal of a written instruction which improperly states the elements of damage will cure the error. 4 A party cannot object to error in a charge which is in his favor ; 5 nor to a charge which is substantially the same as one asked by him, and either given or refused. 6 582. How charge construed in determining its sufficiency or va- lidity. The appellate court presumes that the jury was composed of in- telligent men, and will not call that an error of instruction which to the judges is intelligent and right. 7 Instructions will be taken as a whole, and each part construed in connection with the rest; 8 and when so considered, if they present the law applicable to the case made by the pleadings and evidence, as a general rule they will be sufficient. 9 Isolated parts will not be considered erroneous, though they might bfe if standing alone. 10 An omission in one part may be supplied by another part ; n and one part may qualify another part, if the paragraphs are not contra- dictory. 12 1 G., H. & S. A. Ry. Co. v. Daniels, 1 Civ. App. 695 (20 S. W. Rep. 955). *Kraus v. Haas, 6 Civ. App. 665 (25 S. W. Rep. 1025). S. A. & A. P. Ry. Co. v. Robinson, 73 T. 277 (11 S. W. Rep. 275). 4 Yoakum v. Mettasch, 26 S. W. Rep. 129. *Pardue v. James, 74 T. 299 (12 S. W. Rep. 1). 6 O'Neal v. Knippa, 19 S. W. Rep. 1020; G., H. & S. A. Ry. Co. v. Smith, 24 S. W. Rep. 668. 1 Brunswig v. White, 70 T. 504 (8 S. W. Rep. 85), citing Railroad Co. v. Ogier, 85 Pa. St. 73; Ft W. & D. C. Ry. Co. v. Greathouse, 82 T. 104 (17 S. W. Rep. 834). 8 Kauffman v. Babcock, 67 T. 241 (2 S. W. Rep. 878); Brackett v. Hinsdale, 2 U. C. 468; Freiberg v. Johnson, 71 T. 558 (9 S. W. Rep. 455); Moore v. Moore, 73 T. 382 (11 3. W. Rep. 396); Rost v. Railway Co., 76 T. 168 (12 S. W. Rep. 1131); Baker v. Ashe, 80 T. 356; Morgan v. Giddings, 1 S. W. Rep. 369; Jobe v. Hous- ton. 23 id. 408; 1 App. C. C., 1017; Numsen v. Ellis, 3 App. C. C., 135. 9 Brackett v. Hinsdale, 2 U. C. 468. 1 Moore v. Moore. 73 T. 382 (11 S. W. Rep. 396). Rost v. Railway Co., 76 T. 168 (12 S. W. Rep. 1131). 12 Baker v. Ashe, 80 T. 356 (16 S. W. Rep. 36). It cannot be required that each paragraph shall be so full in detail as to be considered independently of the other parts of the charge. If, in the charge, actual and constructive notice are defined, it is not necessary that such definition be repeated whenever the word notice occurs. Freiberg v. Johnson, 71 T. 558 (9 S. W. Rep. 455). It will be pre- sumed that the jury considered a part of a charge referred to in another parL Mo. Pac. Ry. Co. v. James, 10 S, W. Rep. 332. 583.] riiAi:.l\(J THE Ji 557 Every rhariro must l>e trsted by the facts to which it is applica- ble; the announcement, therefore, of a general principle in a charge, which in the abstract may be \vroni:, will not be cause for reversal if it be so modified by the charge, in view of the facts of the case, that it could not affect the rights of the party complainant. 1 A charge must not be taken as an abstract proposition, but must be considered in connection with the issue and the evidence ;* and all the paragraphs bearing upon one issue must be considered to- gether. 8 In determining the sufficiency of the general charge it should be considered in connection with the special charges given. 4 583. Directing a verdict. A charge which directs a verdict to be rendered for a party to a suit, when the uncontradicted evidence on all the issues inv clearly entitles him to such a verdict, is not error. 5 When there is no evidence except that which establishes facts, and a conclusion there- from in favor of one party, it is not error to instruct the jut return a verdict for such party ; but though there may be no troversy as to the existence of facts, yet when the conclusion to be drawn from them is the subject-matter of dispute, it is error to direct a verdict for either party. 6 Where there is some evidence tending to prove a question in issue it must be left to the jury. The court may properly direct a verdict for defendant only there is no evidence tending to establish the fact. 7 When is evidence in favor of either party, it is error for the court to charge the jury to return a verdict against such party, even though the weight of evidence may be against him. 8 iTex. & Pac. Ry. Co. v. Wright. 63 T. 515. *Rosenthal v. Middlebrook, 63 T. 333; Davis v. Loftin. 6 T. 489. St Louis & S. F. Ry. Co. v. McClain, 80 T. 85 (15 a W. Rep. 789X V. charge in two separate paragraphs instructed the jury, first, that plaintiff shoul.1 recover if the injuries suffered by him were caused by tl "<** of the defendant, and in the next, proper care on part of the plaintiff was defli was held that the jury must be supposed to have consi.l. iv-l th.- s. ,-,.n.l para- graph as well as the first G., H. & S. A. Ry. Co. v. Matula, 79 T. .',77 ( r, - KV].. 573). * Campbell v. Fisher. 24 S. W. Rep. 661. Easbn v. Eason. 61 T. ^:>: T.-.-il v. TVrn-11. r,s T. -'YT; Corley v. Ren*, 24 8. W. KVp. H.T.: Stringfellow v. Montgomery. 57 T. 849. Supreme Council of A. L. of H. v. Anderson, 61 T. 296. Newberger v. Heintze, 8 Civ. App. 259 (23 a W. Rep. 867); Dittman v. \\ ::i s. W. Rep. 07: Kllis v. Rosenberg, 29 a W. Rep. 519; Fitzgerald v. Hart. 17 s \V. Rep. 869. spott.-r v. \Vh.-at. 53 T. 401. Where the defense to a note is fraud and a fail- ure of consul. -r;iti< n. it is-.-rmr t<> .iir.-.-t :i ' plaintiff ,-vi.li-iu-e. Fit wnil'i v. Hart. -.'.'I S. \V. K.-|.. I ' th.- plaintiff has \-. aprima facie legal title in himself, and the evidence of defendant does not es- 553 CHARGING THE JURY. [ 583_ The duty of the judge is to declare negatively that there is no evidence to go to the jury, but not affirmatively that a certain issue is proved. 1 tablish title in him, it is proper for the court to instruct the jury to return a verdict for plaintiff. Montgomery v. Carlton, 56 T. 361. When the appellate court has decided the legal effect of paper evidences of title to be that the title was thereby vested either in plaintiff or defendant, it is not error for the trial court, on another trial of the same cause upon the same evidence, to direct the jury to return a verdict for the particular party in whom the title vested. Frankland v. Cassaday, 62 T. 418. Where the evidence showed that the death for which damages are claimed was attributable to the negligence of the deceased, without fault on the part of the defendant or its employees, it was the duty of the court to instruct the jury to find for the de- fendant. Rozwadosfskie v. Railway Co., 1 Civ. App. 487 (20 S. W. Rep. 872). 1 & A. & A. P. Ry. Co. v. Long, 4 Civ. App. 497 (23 S. W. Rep. 499). CHAPTER XXXVL DELIBERATIONS OF THE JURY RETURNING THE VERDICT. 584 Foreman of jury. 585. May take papers with them. 586. Jury to be kept together; duty of officer in charge: caution in case they are permitted to sep- arate. 587. Misconduct of jurors; affidavits not received to impeach ver- dict 588. May communicate with the court. 589. May ask further instructions. 590. May have witness re-examined. 591. May examine depositions. 592. Discharged in case of disagree- ment 593. Discharged in cue of sicknes* etc. 594. Discharged by final adjourn- ment 595. Case to be tried again in cue of discharge of jury. 596. Court may proceed with other business during absence. 597. Returning the verdict 598. Verdict to ba in writing and signed. 599. Receiving the verdict; disagree- ment 600. Polling the jury. 601. Verdict informal or defe< or not responsive to the 684. Foreman of jury. The court may appoint one of the jury to be foreman. In cue no foreman is appointed by the court, the jury may elect a fore- man from their number, who must preside at their deliberations and see that they are conducted with regularity and in order. 1 The verdict must be signed by the foreman.* 685. May take certain papers with them. The jury may take with them in their retirement the charges and instructions in the cause, 1 the pleadings and any \\i dence except the depositions of witnesses. But when part only of a paper has been read in evidence, the jury shall not take the same with them unless the part so read to them is detached from that which was excluded. 4 The jury may read the pleadings in their retirement, bat it is not tin ir duty to do so, and it is error to charge them thai such error is not ground for reversal unless its result was to mislead the jury, and such a result is claimed on appeal.' It was proper to IR.& isoa. IR.S.189& R. 8. 1808, 1821. Instructions asked and refused should not be taken. Rule 62. R,S.180a L A O. N. Ry. Co. v. Leak, 64 T. 654 Where the records of deeds were read 560 DELIBERATIONS OF JURY RETURNING VERDICT. [ 586. refuse to allow the jury to take with them in their retirement a map made by a witness in response to interrogatories and illustra- tive of his answers. 1 A leaf from a family Bible detached therefrom and made part of the answers of a witness testifying by depositions on the trial was separated from the depositions and was taken by the jury in their retirement. This was error. "Written evidence may usually be taken out by the jury; but depositions are excepted, Ixvause the party whose case is sustained by depositions would have an improper advantage over him whose proofs were oral only. 2 586. Jury to be kept together; duty of officer in charge; caution in case they are permitted to separate. The jury may either decide the case in court or retire for delib- eration. If they retire, they must be kept together in some con- venient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court ; but the court may, in its discretion, permit them to separate temporarily for the night and at their meals, and for other proper cause. The officer having the jury under his charge shall not suffer any communication to be made to them or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court; and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon. If the jury are permitted to separate, either during the trial or after the case is submitted to them, they must be admonished by the court that it is their duty not to converse with or suffer themselves to be ad- dressed by any other person on any subject connected with the trial. 3 It is within the discretion of the trial judge to permit a jury to separate after the trial has begun, without regard to the consent of counsel, and the action of the judge in this regard will afford no ground for reversal when no abuse of such discretion is shown. 4 in evidence in lieu of the originals, it was held proper to refuse to permit the jury to take the records with them in their retirement. Such records should not be taken beyond the control of the clerk or his deputies. Collins v. Box, 40 T. 191. 1 Snow v. Starr, 75 T. 411 (12 S. W. Rep. 673). 2 Chamberlain v. Pybas, 81 T. 511 (17 S. W. Rep. 50), citing Pridgen v. Hill, 12 T. 374; Rawsou v. Curtiss, 19 111. 485. It is error to permit the jury to take a part of a deposition in their retirement; and it was held a clear infringement of the statute to detach from a deposition a statement of account sales and send it to the jury. G., C. & S. F. Ry. Co. v. Hughes, 31 S. W. Rep. 411. R. S. 1304-1306. 4 Noel v. Denman, 76 T. 306. In this case the judge states that "the cause had been on trial all day, and it was then after dark; a portion of the jury had been up on a case the night before, and they were allowed to separate after being ap- propriately instructed not to talk about the case, and not to permit any person to talk about it to them or in their presence. Held, not an abuse of discretion. In San A. & A. P. Ry. Co. v. Bennett, 76 T. 151 (13 S. W. Rep. 319), the jury i>7 589.] I'l.Ml;; .U KV -- KhTLKXIXO VERDICT. 561 ? 587. Misconduct of jurors; affidavits not received to impeach ver- dict. Affidavits of jurors as to misconduct, or as to their understand- f the facts, will not be received to impeach their verdict, or in aii I >f a motion for a new trial. 1 It is said that the practice of per- mitting jurors to make affidavit of facts which transpired in the jury room, and to state how they made up their verdict, in order 'w that tlio verdict is erroneous and ought to be set aside, is wholly irrcirular and cannot be tooseverely reprobated. 1 Affidavits to the effect that certain of the jurors misunderstood certain testi- mony are properly rejected; 1 or that the verdict was assented to under restraint. 4 Conversation of a juror with plaintiff, outside of the court room, after all the evidence was in, was held a ground for a new trial* That one of the plaintiffs, during the progress of the trial, mingled with and talked to the jurors when they were out of the court room, and after tin- ivturn of the verdict invited them to a saloon to drink liquors at his expense, which invitation was accepted, was held not sufficient to authorize a new trial, without a showing that the jury were probably influenced to the injury of the defendant.' ? 588. May communicate with the court. When the jury wish to communicate with the court, they must make their wish known to the officer having them in charge, who will inform the court thereof, and they may be brought into open . and through their foreman state to the court, either verbally or in writing, what they desire to communicate. 7 ? 589. May ask further instructions. The jury may, after having retired, ask further instruction of the court touching any matter of law. For this purpose they must ap- pear before the judge in open court in a body, and through their foreman state to the court, either verbally or in writing, the par- ticular question of law upon which they doire further instruction, and the court must give such instruction in writing; but noinstruc- were instructed and permitted to separate OH adjournment for dinner. This was held prop 1 1. & G. N. Ry. Co. v. ( ;,, r .|,,n. 7 J T. II US. \V. I: ; ' Bank v. Bates, 72 T. 1:57 i in s. \V. I: T. 240 (14 - Rep. 1010); Ma*.., v. RoMll, 1 T. 7.-1: II Burns v. Pain*, s T. l-v.: Hal. y v. Cusenbary, 30 a W. Rep. 587; (iiirl.-y v. Clarkaon, 80 & W. Bep.360. -Whitlow v. M...T-. 1 A|.|. - ITOOKBb v. I'.al.K -J A,,,,. < I'.ir.lwll, il T. 3Wt BoetRe v. I -in. la. H T. nn. Cav.Schr w. r. i I.P.C.C., . R.S. i DELIBERATIONS OF JURY RETURNING VERDICT. [ 590-iV.I-L tion shall be given except upon the particular question on which it is asked. 1 500. May have witness re-examined. If the jury disagree as to the statement of any particular witness, they may, upon applying to the court, have such witness again brought upon the stand, and he shall be directed by the judge to detail his testimony to the particular point of disagreement and no other, and as nearly as he can in the language used upon his exam- ination. 2 691. May examine depositions. If the jury disagree as to any portion of a deposition or other paper not carried with them in their retirement, the court may permit such portion of the deposition or paper to be again read to them. 3 g 592. Discharged in case of disagreement. The jury may, after the cause is submitted to them, be discharged by the court when they cannot agree and both parties consent to- their discharge, or when they have been kept together for such time as to render it altogether improbable that they can agree. 4 593. Discharged in case of sickness, etc. The jury may be discharged by the court when any calamity or accident may, in the opinion of the court, require it, and they shall be so discharged when by sickness or other cause their number i& reduced below the number constituting a jury in such court. 5 This article seems to be in conflict with other provisions of the statute. The number required to constitute a jury in the district court is twelve; 6 but it is provided that if one or more jurors, not exceed- ing three, may die or be disabled from sitting, those remaining shall have power to render a verdict. 7 Article 1323 of the Kevised Stat- utes also contemplates a verdict by a less number than twelve. The provision is that if, pending a trial in the district court, any juror ina} r die or be disabled from sitting, and the verdict is rendered by the remaining jurors, it shall be signed by all of them. 594. Discharge by final adjournment. The final adjournment of the court before the jury have agreed upon a verdict discharges them. 8 IRS. 1308, 1321. 2 R 8.1309. R 8.1310. RS. 1311. R 8.1312. See 472, ante. 6 R S. 3228. R S. 3229; Const, art. V, 13. R a 1313. IU.l.Il;l.l:A!I..\s OF Jt'KY RETTRNIXG VKJ.; ?; 595. Case to be tried again in case of discharge of jury. When- a jury has l.eeu diacharg.'d without having r.- ; again tried at the same or anottft 96. Court may proceed with other business during absence of jury- The o.urt may.durino; the retirement of the jury, proceed to an- other business and adjourn from time to time, hut i> d-,-med for all purposes connected with the case before the jin $ 597. Returning the verdict. Tin- statute provides that, when the jury have agreed upon t! verdict, they shall be conducted into court hy the oflicer ha them in charge, and their names shall be called by ti they shall deliver their verdict to the clerk. 1 598. Verdict to be in writing and signed. The vei-dict must be in writing and signed by the foreman; ami where, pending a trial in the district court, any juror mav die or be disabled from sitting, and the verdict is rendered by th- ing jurors, the verdict must be signed by all of such remaining jurors. 4 ? 599. Receiving the verdict; disagreement. ( >n receiving the verdict from the jury the clerk reads it al- and inquires of the jury if such is their verdict; if anv juror a^re.-s to the verdict, the jury are sent out again. If no disagree- ment is expressed, and neither party requires the jury to be polled, R S. 1314. IR.8 *R - V jury in the county court returned their pi at hi* residence, and n<-t in open court. This occurred in th- ni>;lit. cased one of the jurors from bi nt at < -c-urt n-xt innrnin^. On the n*xt morning, five of the jurors U-iiiu ;>n-s.ut in o|*-n court, tin- v.-nlict was read by tlu- clerk and assented to by the jurors |>n -^-ui. ami tin- judp' told tlie | that it i-itli.-r i-f them de-ir.'d the absent juror to !* pr.--.nt. h> would et: him. 1'iit neither [uirty retpiested this t< ! done. One of them manner of returning and receiving the \.-nlict. and it wa held that the objec- tion was fatal to the validity of the verdict. The verdict must U- i open y a jury, ami the parties must have the op) '> |--11 tlw jury. Whitlow v. M.*,re. 1 A pp. ('. Q, ? KIJ2. 4 R - . The record not Hhowin^ that t was signed, hut the judgment reciting that the jury returned ther verdict. tat- ^ hat it was. it will not be presumed that tlie verdict wa* not signed. Doujc- liaker, 79 T. 499. Althou-h two v, r-li. t- ! found hy the jury, that only will U- considered as the proju-r verdict upon which the judjrment is bam-.i is it necessary that the vrrilict ! incorporated in the judgment, with or \\ith out the signature of the foreman of the jury attached thereto. McKJniMO T. Reliance L. Co., 63 T. 30. 564 DELIBERATIONS OF JUKY RETURNING VERDICT. [600,601. the court receives the verdict if it is otherwise sufficient, and enters a minute thereof on the docket, and the jury are then discharged. 1 600. Polling the jury. When the verdict is announced either party may require the jury to be polled. This is done by the clerk or judge asking each juror separately if such is his verdict; if any juror answers in the nega- tive the jury are again sent out for further deliberation; but if each juror concurs, the verdict is received and noted in the docket, ex- cept in the cases provided for in the succeeding section, and the jury are discharged. 2 601. Verdict informal or defective, or not responsive to the issues. If the verdict is informal or defective the court may direct it to be reformed at the bar, and where there has been a manifest mis- calculation of interest, the court may direct a computation thereof at the bar, and the verdict may, if the jury assent thereto, be re- formed in accordance with such computation. If the verdict is not responsive to the issues submitted to the jury, the court must call their attention thereto and send them back for further delibera- tion. 3 It is held to be within the discretion of the court to call the jury together after they have rendered a verdict and been discharged, and to receive from them an amended verdict. 4 The jury brought into court a verdict finding for plaintiff $500 actual and $4,500 exemplary damages. There was no issue as to exemplary damages, and plaintiff had received severe injuries. The judge refused to receive the verdict, instructing them that they could not find exem- plary damages. The jury, after short consultation, returned a ver- dict for plaintiff for $5,000. This was received and judgment was rendered thereon. This was held to be the proper practice. 5 IRS. 1324. 2R. S. 1325; Hancock v. Winans, 20 T. 320. SR. S. 1326, 1327. * Howard v. Kopperl, 74 T. 494 (5 S. W. Rep. 627). The original plaintiff hav- ing died, the amendment consisted in omitting his name from the amended verdict. & Ft. W. & D. C. Ry. Co. v. Mackney, 83 T. 410 (18 S. W. Rep. 949). Action to foreclose a vendor's lien on lots 2 and 3. The jury returned a verdict for lots 3 and 4, and were discharged. Counsel discovered the error while most of the jury were yet in the court room, and the court recalled them and directed them to compare the descriptions in the petition with the verdict. They then re- turned a verdict for lots 2 and 3, and it was held that there was no error in the absence of a showing of injury. Sigel v. Miller, 25 S. W. Rep. 1012. And see McKean v. Paschal, 15 T. 37; Salinas v. Stillman, 25 T. 12. In trespass to try title the court instructed the jury that if they found for the plaintiff at all, they would allow him a specified number of acres. They re- turned a verdict for more than the amount specified. The court called their 1.] I'M IHKRATIOXS OF JURY EETCR.V ! )ICT. It is proper to allow the jury to correct tlu-ir as t> :\ clerical omission, or so as to make it express dearly \\hat mean. 1 atti -ution to the section of the charge indicating the amount they should find, if anything: and thereupon. ;.t tin- r. cjiu-st of the jury, and in tli.-ir presence, the court corrected the verdict so as to conform to the charge. The juror- and all of them, assented to the correction. There was no error in this. llil- burn v. Harrell, 29 S. \V. li.-p. 1)25. 1 Fn-ili-rick v. Hamilton, 38 T. :J21. After the case was submitted, tin- court being about to take a recess for dinner, it was agreed by tin- panic* that th- jury should return their verdict to the clerk during the recess of the The jury returned their verdict, but it \va> defective, it only U-in^r. " We find for the plaintiff," and then dispersed and went tod imu>r. After the recess thej were called together by the court, at the instance of the plaintiff, and tht> case a>;ain submitted to them, and they returned a verdict for the plaintiff for a specific amount Held, that there was no error. McKean v. Paschal. !" But a jury, after they have been discharged and dispersed, cannot > and allowed to change the substance of the ver !ict they !: :ve rendered. Th farthest that courts have gone in permitting the amendment of v. r h.-t- n cases is, when the jury have decided the issue, but have failed to return a com- plete verdict; as, for instance, in an action for a sum certain in money when they have found for the plaintiff, and nothing remains to complete tin- \ but the computation of the sum, to permit them to make the computation,. Salinas v. Stillman. 25 T. 12, In Thomas v. Zushlag, 2.~> T. - turned a sealed verdict as follows: "We, the jury, find that the plaintiff is entitled to the sum of $600 as wages, for the work performed by him." Th next morning, after having dispersed, the jury answered to their names whea the verdict was read in court; whereupon the court sent the jury back to com- plete the verdict by finding upon another issue. It was held there was no error. CHAPTER XXXYII. THE VERDICT. C02. General verdict. 603. Special verdict; special issues. 604. Must cover all the issues; con- clusions of fact on trial by the judge. 605. Defective or erroneous findings of fact. 606. Form of verdict. 607. Certainty required. 608. Must respond to the issue. 609. Must comprehend the whole issue. 610. Finding as to damages. 611. Value of personal property, how assessed. 612. Compromise verdict. 602. General verdict. The verdict of a jury is either general or special. A general ver- dict is one whereby the jury pronounce generally in favor of one or more parties to the suit upon all or any of the issues submitted to them ; l and is not rendered special by the fact that it designates the grounds on which it is based. 2 The statute authorizes either a general or a special verdict, but not both in the same case; 3 the practice of requiring a general verdict and also special findings on issues submitted is not authorized. 4 If the two verdicts are consist- ent and the same judgment would follow upon each, the irregularity is of no consequence. But where the finding upon special issues is contradicted by the general verdict, no judgment can be rendered and the verdict should be set aside. 5 A special verdict reiterates all the facts alleged which, in the judg- ment of the jury, are sustained by the proofs. A general verdict is a finding by the jury in the terms of the issue or issues submitted to them, wholly or in part, for the plaintiff or defendant, and in its most general form is: "We, the jury, find for the plaintiff;" that is, they find the material facts in dispute, as defined in the plead- ing, in favor of the plaintiff. In an action on a note, such a verdict would be sufficient, unless from the pleadings and facts a different amount than that stated in the note ought to be allowed, as in case 1 R. S. 1328, 1329. 2 Shifflet v. Morelle, 68 T. 382 (4 S. W. Rep. 843). 3 Cole v. Estell, 6 S. W. Rep. 173. 4 Dwyer v. Kalteyer, 68 T. 554 (5 S. W. Rep. 75). While it is irregular to sub- mit to the jury special issues and also to require a general verdict, it will not afford ground for reversing a judgment unless, from an examination of the case, it appears probable that injury resulted therefrom. Heflin v. Burns, 70 T. 347 (8 S. W. Rep. 48). Blum v. Rogers, 71 T. 668 (9 S. W. Rep. 595). 603.] THE VERDICT. of payments, offsets, or other matters pleaded and proved which re- i he amount to be recovered. In actions sounding in damage*, or where damans may be recovered incidentally, and where dates, amounts, and the like, need not be stated accurately or proved as stated, there >hould, with a general finding for the plaintiff, be abo vial finding of the amount. 1 "Where the question of fraud or notice was the controlling issue in the case, a general linding for the defendant on account of fraud i.eld a finding of all the material facts well pleaded in the an- Where the suit was upon a verbal promise to pay a partic- ular sum. and the statute of frauds was pleaded as the only defense, a general verdict for plaintiff was held sufficient to support a judg- ment for the amount claimed. 1 ?' 603. Special verdict; submitting special issues. A special verdict is one wherein the jury find the facts only on - made up and submitted to them under the direction of the court. It must find the facts as established by the evidence, and not the evidence by which they are established, and the findings must be such as that nothing remains for the court but to draw from such facts the conclusions of law. Such verdict is, as between the parties, conclusive as to the facts found. 4 It is held that sub- mitting special issues for the jury to find is a matter largely in the discretion of the court, and that the action of the court will not be M>d unless it is plain that there has been an abuse of the discre- tion to the injury of the complaining party. 4 The statute provides that the jury shall render a general or a special verdict, as shall be directed by the court, at the request of a party to the suit. 1 It will be noted that in Tex. A: Par. Ky. Co. v. Mill.-V. 7; T. > . & W. K. ]. 2>'<-l>, the supreme court, in holding the statute directory only, fails to quote the statute correctly, in omitting the clause "at the request of a party to the suit." 7 1 Darden v. Matthews, 22 T. 320; Smith v. Johnson, 8 T. 4ia 2 Hamilton v. Rice, 15 T Warivn v. Smith. 24 T. 484. "We, the jury, render a verdict in favor of plaintitf." li.-ld sufficient to .support a jud^im-nt where defendants interposed n<> defense, but made attacks upon the case of plaintiff, the points of attack having IM-.-H >ulmiittrd in the charge of the court to the jury. Martin Brown i ill. 77 T. 199 (13 & W. Rep. '-: :du-t in favor of one pa always taken to be a verdict again>t tit- othrr. It is unusual in an ordinary case to name or mention the party a^ain-i whom thy verdict is found. Tex. * M.-x. Ky. C<>. v. (iallalu-r. Ttt. 0-:, ,1:, S. \V. Rep, WX R Tex. & Pac. Ry. Co. v. Miller. 79 T. : Rep. 8M); La Rue v. Bower, 1 API-, t *>k. 4ii T. 288. '. jx 119; I; "See. also, CoK- v. Crawford. VJT. r.M IS w i: ,. -'.I'. . "h.r- th- matter is held discretionary, but the com ; i the judge to state in writing the conclusions of fact found by him separately from the conclusions of law. Failure to keep the con elusions of law and of fact separate is not, as a general rule, Around for reversal. 2 The judge is not required to Hie conclusions unle>s requested; 3 the motion must be brought lo the attention of the court, and insisted upon. 4 In absence of a request the action of the 1R.S.1333. 2 Wells v. Yarborough, 84 T. 660 (19 S. W. Hep. -'n. While it is proper that special issues submitted to the jury ami their verdict th.-r-oM should l>eei in the minutes of the court. yet when- the transcript shows that the i-v.ii.- made up under direction f tin- r. . ..rd. th> gion to 80 enter them upon tin- minutes is not -u. h irr.--ularit\ a> will reverse the case. Sears v. (Jn-en. 1 I". ('. ; Where the question to be determined is whether a lawful act was dn. iigently, a finding \>y the court a- a conclusion of law that then was i without a finding as a matter of fact, is iv\,rsil>!e error. 1 ciu-.ln.lm. 6 S. W. Rep. 55a The fact that the ju.l^e has included in his tin. In some conclusions of law dOM n"t vitiate his whole statement. v. Rust, 6-1 T. .Y.29. The findings of fact and of law are snthYieiitly sejmrat the statement: "I therefore com hide. >unn mediately following a statement of the fact*. There is no ilini.-nlty in ti- the dividing lim-. Ward r, I .- & \V. Il'lJ-Wft. Hardinv. Al.U-y. ',: T. B88; Thomas v. guarles, W T. 001; G., C A S. 1 Co. v. Fassett. 66 T. 888 (1 a W. I, * Sloan v. Thompson, 4 ( iv. A pp. 11'.' Rep. 618): Glass v. Wil S. W. Rep. e-.'o. If the conclusion-, of fa.-t l.y the ,-oiirt are not surtici.-nt; and specific, the attention ,,f the ,-oiirt should l- < ailed to th,- d.-f.-.-t 1-y n exceptions or in some other proper method; otherwise it will not be OOUM 570 THE VERDICT. [004. trial court will not be revised when the statement of facts shows evidence upon which the judgment is sustained. 1 Where it is evi- dent that no injury resulted from the failure of the trial judge to file his conclusions of fact and of law after request, such error is no ground for reversal. 2 But when such failure is presented by a proper bill of exceptions, and there is not a full statement of facts in the record, and it is not apparent that such failure was without injury to the complaining party, the judgment will be reversed. 3 The request is not complied with by simply filing conclusions of law. The right to have a separate and distinct statement of the facts found is statutory. The statutes requires a succinct and clear statement of what the judge thinks is the true result of the evi- dence what it proves pertinent to the issue between the parties ; then, upon this result, what his opinion is as to the law which de- termines the rights of the parties. 4 The request may be made after a motion for a new trial is overruled, and must be complied with in a proper case, if sufficient time remains before the end of the term; 5 all other unreached business must be neglected, if necessary, in order that the request may be complied with before the end of the term. 6 When the statute is complied with no further statement of fact? is necessary ; but if there is also a statement of facts, agreed to by on appeal. G., C. & S. F. Ry. Co. v. Fossett, 66 T. 338 (1 S. W. Rep. 259). The omission of the court to find upon a material matter when its attention was not called to such omission. is no ground for reversal. Lanier v. Foust, 81 T. 186 (16 S. W. Rep. 994). 1 Tackaberry v. Bank, 85 T. 488 (22 S. W. Rep. 151, 299). 2 Umscheid v. Scholz, 84 T. 265 (16 S. W. Rep. 1065); Huffman Implement Co. v. Templeton, 4 App. C. C., 13; Hill v. Newman, 67 T. 265 (3 S. W. Rep. 271). Dunlap v. Brooks, 3 App. C. C., 359; Callaghan v. Grenet, 66 T. 236 (18 S. W. Rep. 507); Barnett v. Abernathy, 2 App. C. C., 775; Shuber v. Holcomb, 2 App. C. C., 224: Hodges v. Peacock, 2 App. C. C., 824. * Callaghan v. Grenet, 66 T. 236 (18 S. W. Rep. 507). See Hardin v. Abbey, 57 T. ."is^ f as to the purpose of the statute. 5 North v. Lambert. 3 App. C. C., 53. h Shuber v. Holcomb, 2 App. C. C., 224. The request should be made promptly, while the matter is fresh in the mind of the court, and if made after an unrea- sonable delay a refusal to make the statement will not be revised. City Nat Bank v. Stout, 61 T. 567. At 9 P. M. of the last day of the term, and at the close of a protracted trial, the district judge was asked to file conclusions, etc. His refusal, for want of time, was held proper. Davis v. State. 75 T. 420 (12 S. W. Rep. 957). Failure to file conclusions within the time from judgment and the filing of a motion for new trial is no ground for reversal, although request was made. Anderson v. Horn, 75 T. 675 (13 S. W. Rep. 24). The trial closed at 4 P. M. of the last day of the term. On being requested to file conclusions of fact and law, the judge refused to do so because the other business of the term, which necessarily had to be transacted, would consume his time until the hour of adjournment. Such refusal furnished no just ground for complaint on appeal Morrison v. Faulkner, 80 T. 128 (15 S. W. Rep. 797). 'I-.] Till. \ counsel ;nitate of facts which may legitimately be deduced from the evidence in the re -ion of the court can be sustained, the judgment will be af- tirmed:' if tin-re U any theory of the facts supporting the judgment, it will be assumed that the court below adopted and pnxv. upon that theory; 5 if the statement of facts supports the judgment upon any combination of facts therein, errors uj)on other branches of the case are no grounds for reversal. The judgment will be sus- tained if it can be; 6 it will be presumed on appeal that the court did lind the facts to be such as authorized the judgment, if there evidence warranting such finding, even though there was other i'-uce that might have sustained a different finding. 7 When, at the request of counsel, conclusions of law and facts are made ..at by the trial judge, and neither the conclusions of law nor -itheiency of the facts to sustain the judgment are excepted to, the sufficiency of the facts found to sustain the legal conclusions will not be considered on appeal unless except ions are waived. It Fire Ins. Ass'n v. Miller, ',> App. C. C., g 335. Chance v. Branch. M T. 490: Madden v. Madden, 79 T. 595 (15 & W. Rep. 480); v Pac. Ry. Co. v. Cole. 1 a W. Rep. 631, 632: Wright v. Pato, id. 661. Tex. & Pac. Ry. Co. v. Hoskin-. ,> App. C. C., 67. McC..y v. M.iy.-r. vM S. \V. Rep. 1015. migT. Marx. 6.J T. -.'.: Johnson v. Archibald. 7^ T. 98(14 a W. Rejx 8WX Harris v. Cattle Co.. - : 1'rideaux v. Glasj;.)vs . v! ( i\. Aj.p. 1-J Jl S. \V. Rep. 276X In a trial without a jury, in absence of conclusions of fact atnl <>f law. tlicn- being two grounds of defense, and it not appearing upon which is>iu> th- decision was made, incom- petent evidence admitted upon one issue, without which a tiinlinj? on that issue ml'l not havf been liad, is ground for reversal Freeman v. Hawkins. 77 T. 493 (US. \V. Rep. 364). >n of trespass to try titl. \\.i^ tti.- COIMkUred that the 18 the result of oversight, and. tlu- plaintilTs not bavin* -alK-.J the at- t-ntion of tin- judge to tbt> omission, it was not ground for relief II Whitakri "'. Th- trial ju.lp ; upon record hi-^ tindin^s of fact or conclusion* of la\\. n-r in M r in.li-at*d roun-U u|H.n which he >ase! his jud^m-nt th- plaiutilT having made a CMC requiring judjfint-nt in bi> favor unl> -> ! f-;it-d by th- t .dants and tb- juil^iiu-nt In-low Ix-in* fr tli. ap|ical the -liuiony Mi|'|H>rtin* th- jiidin-nt th- ap|H-llat- court \\iirr-\-r-- an I i -maud. I' upon wh*t th- trial court act. -1. or that it woiil-l v. ArinT: 4M> on some of the if r the statement of erroneous con- clusion-;, is not caiiM- fr r-v.-i -;tl.- Krror in the finding must be shown by the record. 1 If a party desires a fuller or corrected find- :ie court's attention must be call.-d to the matter; 4 the request i>e made at any time during the term,^ and exceptions should 1 in case of refusal." Failure to find a particular issue claimed by counsel to be mate- rial : ror unless, from an inspection of tin- ! rd, it should appear material that a finding should have been had on it. 7 Failure to tind a material fact necessary to support the c"iiclu>ions of la\v is not ground for reversal when the statement of facts shows satis- factorily the proof of such fact. 8 A failure to tind upon a matter as to which there is no conflict in the evidence is not error.' That an instrument involved in the litigation is erroneously d. M-ril*ed is immaterial, where there is no doubt as to the instrument to which the findings refer, 10 or if the instrument is set out in the findings." ? 6O6. Form of verdict. special form of verdict is required, and where there has been a substantial compliance with the. requirements of the law in ren- dering a verdict, the judgment will not be arrested or reversed for mere want of form therein. 1 - The form of a verdict is immaterial. 11 i Wells v. Yarborough. 84 T. 660 (19 S. W. Rep. 865). gOO v. Mo. Pac. Ry. Co., 3 App. C. C.. S 5: Ureen v. Cm- Rep. 22M). If tin- finding of a fact is predicated upon the mere opinion of a wit- ness, and the party against whom the fart is found fails to crossexamine the witness to ascertain on what basis of facts the opinion is^iv.-n. it will, on appeal, be deemed conclusive. Burrow v. /a pp. <>'. T. 474 i5 S. \\ I established l>y tin- evidence be omitted, which in tin- opinion ..f an ap|*-llant is material. !) -li.-uld make a request for additional finding. |H.intin out in what r tht- tindin-s of the judge are defective. Andrews \ T. 35 (18 S. W. 1. 'Shipniaii v. Mit'-hcll. 01 T. 171. < Ward v. League, -J t s. W. Rep. 986; Hensley v. Lewis, 82 T. 595 (17 a W. Rep. Fit/.himh v. FraiH-o-Tex. L. Co., 81 T. 306 (16 & W. Rep. lo: .liollll. sS. \V. : Fitzliuwh v. 1 ranco-Tex. L. < la, -1 T. 806 (16 a W. Rep. 1078): Gavin v. LA Salle Co., 1 Civ. App. U7 Jl s. \V. I:, p. i-.-j ,; Cason v. Connor, 83 T. 20 (1 - Rep. 068). Kxle v. Low. -ry. 7' i T. 150 (8 a W. Rep. 78). San Antoni,- \\ .,t- . u < U .. v. M.unv .' S. W. K,-p. 106). 1 Ikard v. Thomp-on. ^1 T. >.-,, Hi S. \V. Ke[V 1019). James v. Tnrn.-r. 7" T. -J II 'I S. \V. I >' Hart v. Hluin. 7(5 T. li: .i:j S. \V. Kep. 181). -' R. a 1834. U ells v. Barnett, 7 T. 584; Burton v. Bondies, 2 T. 204 574; THE VERDICT, [ 607, 608. 607. Degree of certainty required. A verdict is sufficiently certain it' it can be rendered certain by reference to the record. 1 The form is immaterial, so that it be in- telligible, sensible, and find substantially the material issues.- If it is so certain that the court can give judgment upon it, it is suffi- cient; and this is the proper test of its sufficiency. Technical ob- jections as to form are disregarded. 3 In considering the sufficiency of a verdict the first object is to ascertain what the jury intended to find, and this must be done by construing the verdict liberally r with the sole view of ascertaining the meaning of the jury, and not under the technical rules that are applicable to pleadings. If a ver- dict is neither certain in itself, nor finds facts from which certainty can be attained, it ought to be set aside ; 4 reference cannot be made to the evidence in order to sustain the judgment in such a case. 5 Though a verdict may be informal, if it be responsive to all the issues and its meaning clear, it will be held good ; but if its con- struction be doubtful, no judgment can bo rendered on it. 6 A ver- dict which is not responsive to the instructions of the court is sufficient if it be responsive to the issues presented by the pleadings so as to enable the court to adjudicate the rights of the parties. 7 Though a verdict may not be in its form strictly in accordance with the court's charge, yet if its meaning is manifest by reference ta the entire record it will not be set aside for informality. 8 608. Must respond to the issue. The jury must find the very point in issue ; and the finding of matter not in issue is invalid and will not support a judgment. 9 The province of a verdict is to declare the facts upon which the judg- 1 Barton v. Anderson, 1 T. 93; Smith v. Johnson, 8 T. 418; Avery v. Avery, 12 T. 54; Pearce v. Bell, 21 T. 688. 2 Wells v. Barnett, 7 T. 584. 3 Burton v. Bondies, 2 T. 204. 4 Mays v. Lewis, 4 T. 38; Smith v. Tucker. 25 T. 591. ' 5 Clendenning v. Mathews, 1 App. C. C., 907; Thompson v. Albright, 4 App. C. C., g 25; Smith v. Roberts, 4 App. C. C., 49. Where facts are found from which the amount of the judgment, including interest, may be calculated, it is sufficient. Griffin v. Chad wick, 44 T. 406; Newcomb v. Walton, 41 T. 318; Se- crest v. Jones, 30 T. 596; Irvin v. Garner, 50 T. 48: Parker v. Leman, 10 T. 116; Moke v. Fellman. 17 T. 367; Darden v. Matthews, 22 T. 320; B. C. Evans Co. v. Reeves, 6 Civ. App. 254 (26 S. W. Rep. 219). Van Valkenberg v. Ruby. 68 T. 139 (3 S. W. Rep. 746). ^Harkey v. Cain, 69 T. 146 (6 S. W. Rep. 637). G., C. & S. F. Ry. Co. v. James, 73 T. 12 (10 S. W. Rep. 744). In a suit to re- cover the amount due on an insurance policy, a verdict "We, the jury, find for the plaintiff the amount alleged in the petition, and interest thereon," will sup- port a judgment for plaintiff. Alamo Fire Ins. Co. v. Lancaster, 7 Civ. App. 677 (28 S. W. Rep. 126). 9 Hardy v. De Leon, 5 T. 211; Kesler v. Zimmerschitte, 1 T. 50; Phillips v. Hill, 3 T. 397; Pfeuffer v. Wilderman, 1 App. C. C., 1172. 609.] II IK Vl.KMCT. Bent i> to be predicated. Its,,!, > announce to the c the judgment ..f the jury as to how far the facts establish.-,! h\ tin- evidence conform to those which are alleged and put in ksue bv the pleadings. As the farts thu> .1.-, iaiv.l constitute tin- ba- the judgment, which is hut tin- le^al OOD of tin- farts thus found, it follows that tlv :th-r alliim or such of the disputed : '.ill, in connection with those adin if any, support a leiral judgment. 1 If the verdict is n> the jury must be sent hack for further deliberation.* $ 6O9. Must comprehend the whole issue. The verdict, whether general or spe.-ial, must comprehend the whole issue or all the issues submitted to the jurv. 3 The should not receive a verdict which fails to find material issues sub- mitted in the charire.* The case must be disposed of as to all of the defendants." 1 I!ut it is said to be no objection to a judgment that the jury did not find upon all the issues submitted, pro they found upon all the : ^ntial to a judgment :* and \\ the verdict is deficient in not expressly finding one of the issu- the case, it may be aided by the pleadings so as to supply by am.-r .1 raent that which is not expressed in it, but which necessarily tlo\\s from that which is expressed, viewed in connection with the plead ings. 7 1 Clendenning v. Mathews, 1 App. C. C., g 905: May v. Taylor. 22 T. 849; I>;i v. Mathews. j. 1 I. :;jt ; Barnett v. Caruth.22 T. 17& On a special issue - as to a party's place of business, as also the character of the - up.ition he was there pursuing, the verdict was. \\Y. tin- jury, find for the defendant, that hi place of residence was at Wichita Falls." Tin- verdict did not res|ond to the issue submitted. Tillman v. Brown, 64 T. 181. \Vh-n- int-r claimed priority ov-r plaintilF'.s attachment on tlu- ^rouivl f fniu.l in plur notes, a ver-lict for plaintiff for the full amount of his n.-t.-s was h.-ld sufficient as to the disposition of the issues raised by int. rv.-n.-rs. Pit kins T. Johnson, 2 s. \V. Rep. 4:>:t. The finding of the jury upon a special issue sulimitt<-- in which the issue te submitted. Rol.inson v. Moon-, 1 (.'iv. App. !. 994K Where the purchaser of a machitu- sues the st-ll.-r to n-cov.-r tin- purch.is.-im>in-y. alleging that he relin|ui^lu-s all claim to. and ti-n-l.-r- l-a.k. th.- ma. liine, a ver-l favor of plaintiff for a part of the pun-has.- inc. n.y ..nly. and th machine, is not resp< :h.- issui-> mad. l.\ tli. i IL Mac!. in- C... v. Hai,.,., k. 4 Civ. App. ::".' .' . ^ W. i A verdict which omitt-'d action UJMUI on.- the tames 8ul>iniit<-d. and should therefore be st-t aside. Mar^ilis v . 1'atton. - S v vv. 1;. p. lUTO). R a 1833; Michon v. Ayalla, 84 T. 6S5 (19 & W. Rep. 878). Kerr v. Hutcliins 46 T. 885. Levy v. Mel,,wi.ll.4.-i i O'Brien v. Hill. urn. -.>_> T.*l. 7 Pearce v. Bell, 21 T. 687. 5Y6 THE VERDICT. [ 610-612. A special verdict is defective and cannot form the basis for a valid judgment, unless it finds all the material facts put in issue by the pleadings; and this though the evidence may clearly establish the existence of the facts not found. It is the right of a litigant to have the jury pass on all facts controverted by the pleading. When they have failed to do this, the court cannot render a judgment without infringing a right guarantied to the citizen by the constitu- tion and laws. The verdict and judgment should be the end and not the basis for the continuance of the controversy. The verdict should therefore be rendered on the issues made by the pleading in apt language, which cannot admit of a mistake. 1 8 610. Finding as to damages. The proper practice where both actual and exemplary damages are claimed is to instruct the jury to find separate verdicts, one as to the actual and one as to the exemplary damages. But a failure to do this, when not excepted to nor the proper instruction asked, would not, of itself, be sufficient to reverse the judgment. 2 If no instruction is given, a verdict for a gross sum will support a judg- ment. 3 611. Value of personal property, how assessed. Where the suit is for the recovery of personal property, suscep- tible of division and distinct valuation, the jury should assess the separate value of each article. 4 But where a single piece of prop- erty is sued for, in specie, and not in the alternative for damages, and is sequestered, and remains in the hands of the sheriif unre- plevied, it is sufficient to find such piece of property for the plaint- iff, without assessing its value. 5 When damages for detention are also recovered, they may be assessed in the aggregate. 612. Compromise verdict. There is no objection to the assessment of the amount of a verdict by each juror setting down the amount which he believes to be 1 Moore v. Moore, 67 T. 293 (3 S. W. Rep. 284). Where the action seeks a money judgment and the foreclosure of a mortgage, a verdict for a part of the claim, with no finding as to the mortgage, is not a sufficient basis for a decree of fore- closure. Morgan v. Richardson, 25 S. W. Rep-. 171; Smith v. Chenault, 35 T. 78. In an action of trespass to try title the verdict found for the defendant, and fixed sufficiently the extent of the land so found. It appearing that the finding included all claimed by the plaintiffs, the verdict was sufficient; finding beyond was surplusage. Musselman v. Strohl, 83 T. 473 (18 S. W. Rep. 857). See Dodd v. Gaines, 82 T. 429 (18 S. W. Rep. 618), and cases cited. 2 Tex. & Pac. Ry. Co. v. Casey, 52 T. 112; Shook v. Peters, 59 T. 393. 3 Heiligman v. Rose, 81 T. 222 (16 S. W. Rep. 931). f. 4 Blakely v. Duncan, 4 T. 184; Rowlett v. Fulton^E T. 458; Pridgen v. Strick- land, 8 T. 427. 5 Avery v. A very, 12 T. 54 612.] THE VERDICT. right, adding the whole together and dividing by the numb- jurors, if all the jurors assent to the amount after it has been t!n> ascertained. 1 Where there is testimony under which the jury < have found a larger or a less verdict, that the verdict was a com- promise is not a ground for reversal. 1 In actions for damages for a tort, a compromise verdict will stand where the evidence is con- flicting. 1 i Handley T. Leigh, 8 T. 129. Maverick v. Maury, 79 T. 435 (15 a W. Rep. 688)1 1 Owens v. Railway Ckx, 67 T. 879 (4 a W. Rep. 593). 37 CHAPTER XXXVIII. NONSUIT. 618. Right of plaintiff to take a non- suit 614 May be taken, when. 615. May be set aside. 616. Effect of nonsuit where cause is reinstated. 55 613. Right of plaintiff to take a nonsuit. The court cannot compel a plaintiff to take a nonsuit. 1 It is a privilege that cannot be denied, except as modified by the statute. If the plaintiff believes that his evidence is not sufficient to main- tain his case, or if for any reason he does not care to risk a verdict, he may become nonsuit in order that he may have an opportunity of bringing it on again, either in another shape, or when better prepared with evidence. 2 The judgment of nonsuit is not a bar to another action; 3 but if a verdict be once given, followed by judg- ment thereon, the party is forever barred from suing the defendant upon the same ground of complaint. 4 Plaintiff may take a nonsuit when the evidence on which he re- lies is ruled out; 5 or after the court has instructed the jury to return a verdict for the defendant. 6 614. May be taken, when. At any time before the jury have retired the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of the ad- verse party to be heard on his claim for affirmative relief; when the case is tried by the judge such nonsuit may be taken at any time before the decision is announced. 7 A discontinuance is not permitted to the prejudice of a defendant filing a counter-claim. 8 !McGill v. Delaplain, Dallam, 493; Guest v. Guest, id. 394; Huston v. Berry, 3 T. 235. ^ Thomas v. Hill, 3 T. 270; Austin v. Townes, 10 T. 24; Guest v. Guest, Dallam, 394; Frois v. Mayfield, 31 T. 366; Peck v. McKellar. 33 T. 234. 3 Foster v. Wells, 4 T. 101; Pillow v. Eliot, 25 T. Sup. 322. 4 Foster v. Wells, 4 T. 101 ; Weathered v. Mays, 4 T. 387; Lynch v. Baxter, 4 T. 431; Grassmeyer v. Beeson, 18 T. 753; Mills v. Alexander, 21 T. 154; Thouvenin v. Rodrigues, 24 T. 463; Giddings v. Steele, 28 T. 732. It is held that the claim- ant in a suit to try the right to property taken on execution cannot take a non- suit as a matter of right. McDuffie v. Greenway, 24 T. 6. '5. Cotton v. Lyter, 81 T. 10 (16 S. W. Rep. 553); Childs v. Mays, 73 T. 76 (11 S. W. Rep. 154): Block v. Weiller, 61 T. 692. 'Lockett v. Ft. W. & R. G. Ry. Co., 78 T. 211 (14 S. W. Rep. 564). R. S. 1301. 8 R. S. 1260. "'.] The right of a plaintiff to take a nonsuit is not defeated by the ;dant asking affirmative relief, but he takes his nonsuit MI t the right of the defendant to be heard on the claim set up by him. 1 The statute, it seems, applies in actions of trespass t" title. 1 The right of the plaintiff to take a nonsuit upon his own cause of action was considered of sufficient ini|>ortance by the legislature to be given express recognition. Owing to unexpected contingencies that may occur during a trial it is a privilege which it rnav !.. mf ssary for the most careful and diligent litigant to exei it is imjxn-tant that the substance and not the shadow alone of the rirht shall be preserved. It will not unfrequently hapjx'n that the party who takes the nonsuit should be relieved from its effect a timely application upon such terms as the court may in r tion impose and as may be proper to promote the ends of justice. It is only when a defendant bv a counter claim seeks some affirm relief that the right of the plaintiff to discontinue the enti forbidden. Obviously the defendant only seeks such affirm relief when by his own pleading he prays for some specific r hat cannot be given to him under pleading that are >trictly defensive and that serve only to compel the plaintiff to | cause of action. The defendant must not only pray for affirma- tive relief, but he must state facts showing that he has a action. If he is doing nothing more than resisting the plaintiff's very, the statutes recognize the right of the plaintiff, for his own protection, to dismiss the suit. 1 The allowance of a nonsuit after the court has announce* i ision is not reversible error where no injury result -615. Nonsuit may be set aside. Where the plaintiff has been surprised by the decision of the court in ruling out his testimony, and in consequence taken a nonsuit, he 1 Peck v. McKellar, 83 T. 234. 2 Block v. Weiller, 61 T. 692: Hoodlew v. Winter, 80 T. 688, 641 (16 a W. Rep. French v. Grosbeck, JT S. \V. Rep. 4a Huodlen v. Winter, 80 T. 688 (16 a W. Rep. 427V A discontinuance a- of the plaintiffs is, in effect, a nonsuit taken by them, and a judgm< suit is the proper entry K.-lly v. K.-lly. -.':; T. 437); and a dismissal of th rait .lintitf. whether t.-, -iini, -ally a nonsuit or a discontinuance, cannot the ri^ht of an intervener to be heard on his claim for nfflrmnt petition in intervention shows Mich interest in the ul>jct matter of the : tion between the parties as woul-1 entitle the in- nt action uk'iiinst tin- plaintiffs or those represent the relief in whole or in ] t. th-n tl.. iismissalby th- plaintiff- ,-tioti. If no Mich : M in th- int.-f\.-iiti..!i. t! '> the diimiHll of Hi. ; the .li-iui-sil l-y til-.- plaintiffs States U& erson v. McK & W. Rep. 1005. 5SO NONSUIT. [ 616. may afterwards move to set it aside, and reinstate the cause on the docket; and the judgment of the court overruling the motion may be revised on error or appeal. 1 Where a case was reinstated on motion made three days after the judgment was rendered, and objection was made to the action of the court because the motion was not made within the time required by statute, 2 it was held that the matter was in the discretion of the court, and that it did not appear that the discretion was abused. 3 Where the petition showed a cause of action, and there was tes- timony tending to prove the allegations and none contradicting, and the court instructed the jury to find for the defendant, the plaintiff was under no obligation to permit a verdict to go against him, but might take a nonsuit ; and it was error to refuse a motion to set aside such nonsuit when taken. 4 It is not a matter of course to set aside the judgment, but rather an exercise of the equitable discretion of the court upon the pres- entation of sufficient cause, and then upon such conditions as shall provide adequate penalties and protection for all parties. What- ever conditions are imposed in a reasonable exercise of judicial dis- cretion in setting aside the judgment of nonsuit must be submitted to; but when these conditions are complied with, immunity against the judgment exists for all purposes. There will arise some cases in which such judgments ought to be unconditionally vacated, others in which they ought to be left in force. The larger class of cases no 'doubt will be those in which they should be set aside upon such adequate terms as will meet the emergencies of the particular case. 5 616. Effect of nonsuit where cause is reinstated. A nonsuit and reinstatement leaves the case as it was at the in- stitution of the suit as regards the question of limitations. 6 So 1 Houston v. Berry, 3 T. 235; Easterling v. Ely the, 7 T. 210; Austin v. Townes, 10 T. 24; Osborne v. Scott, 13 T. 59. Where a plaintiff was forced to take a non- suit by the refusal of a continuance to which he was entitled as a matter of right, it was error for the court to overrule his motion to set aside the nonsuit and reinstate the cause. Peck v. Moody, 33 T. 84. * R. S. 1373. 8 George v. Taylor, 55 T. 97, citing Goss v. McLaren. 17 T. 107. After argument begun the plaintiff discovered that some of his evidence was not before the court, and took a nonsuit, and the case proceeded to judgment as between the defend- ants. The ground for the motion to reinstate was that plaintiff resided in New York, and was not present at the trial, and that his attorney, when he announced ready for trial, supposed certain overdue coupons were attached to the bond sued on, or were in the hands of one of the defendants, and did not discover his mis- take until after announcement; no injury being shown to result to the plaintiff it was held that the refusal of the motion was not an abuse of judicial discre- tion. Briggs v. Rush, 1 Civ. App. 19 (20 S. W. Rep. 771). t* th suit was reinstated, it was held that the claim was not affected by the statute. 1 And where a case was dismissed for want of prosecu- tion, and was reinstated on a motion made at the next term, tit-- court, referring to the provisions of the statute for the setting aside of judgments, said : Usually such motions are made during th term at which judgments were rendered, but not always. Ky the provisions of the statute 3 it is not a matter of right that jud^n will be set aside on motion. It is discretionary with the court, but that discretion is not an arbitrary or personal om announce a contrary doctrine. Sun Mut Ina Co. v. Levy, 8 App. G, C, 498; Beissner v. Tex Exp. Co., 1 App. C. C., 806. 1 Childs v. Mays, 73 T. 76 (11 S. W. Rep. 154). 2 RS. 137.0. 'Miller v. Earle, 4 App. a C., 222. CHAPTER XXXIX. JUDGMENTS. 617. Of the entry of judgment. 618. Names of parties must be stated. 619. Certainty required in judgment entry. 620. Must conform to the case made. 621. Must be based on the verdict. 622. Of the relief granted. 623. When judgment rendered in cer- tain cases. 624. Recitals in judgments. 625. Entry nunc pro tune. 626. Judgment by consent. 627. Excess in judgment. 628. May include interest. 629. May be for or against one or more parties. 630. Description of land. 631. Only one final judgment. 632. May pass title to property. 633. Enforcement of judgment; judg- ment for delivery of personal property. 634. Foreclosure of liens. 635. Writ of possession awarded. 636. Judgments on appeal from county or justices' courts. 637. Judgments against executors, etc. 638. Final judgments. 639. Interlocutory judgments. 640. Presumptions in aid of judg- ments. 641. Validity of judgments; collat- eral attack. 642. Orders of court 617. Of the entry of judgment. When the verdict of the jury has been properly returned into court and received, or the award of arbitrators has been filed, the judgment of the court follows as a legal conclusion, and is entered by the clerk in the minutes of the court under the directions of the judge. 1 It is the duty of counsel of the party for whom a judg- ment is to be rendered to prepare the form of the judgment and submit it to the court. 2 The entry of judgment upon a valid verdict involves no judicial or discretionary powers, but is simply a ministerial act; and to en- force its performance the writ of mandamus will issue in a proper case. 3 The verdict need not be copied into the judgment; and if it be copied, the name of the foreman of the jury need not be in- 1 R. S. 1087, 1146. 2 Rule 48. 3 Lloyd v. Brinck, 35 T. 1; Const., art. V, 3; R. S. 949. When a jury ren- ders a verdict in proper form, and responsive to the issues presented by the pleadings and submitted to them by the court, no discretionary power is vested in the court to set such verdict aside upon its own motion, notwithstanding it may be against the weight of the evidence or in disregard of the instructions. Lloyd v. Brinck, 33 T. 1. .it IM.MKXTS. 583 eluded. 1 Tho word " judgment " includes all that is meant by the words "on I'M. ,u. decree or judgment." - $ 618. Names of parties must bo stated. The entry of judgment must contain the full names of the parties, as stated in the pleadings, for and against whom the judgment is rendered. 1 The courts do not seem inclined to enforce this ml.-. In sonic ca>rs tin- failure to state the names of the parties is held to be an irregularity, lut in accordance with the general pi and again such a judgment is held to be objectionable, but I simply that an assignment of the error is necessary, at, further notice is taken of it.* When the entry, in connection with the record, leaves no doubt as to the parties in whose favor the judgment was rendered, the judgment is not defective because it omits the names of the parties. 6 So it seems that it is sutlicient if the full names of the parties were set out in the petition. 7 1 McKinnon v. Reliance L. Co., 63 T. 30. - Ilall>ert v. Alford, 16 a W. Rep. 814. Rule 65. Smith v. Chenault. 48 T. 455. 5 Johnson v. Richardson, 52 T. 481. 6 Little v. Kirdwell. *: T. 688. 7 Hays v. Ya rhorough, 21 T. 487. Though a judgment should set forth the full names of the patties for and against whom it is rendered, a failure in this re- spect will not be cause for reversal, in the absence of an assignment of pointing out the defect. Johnson v. Richardson, 52 T. 481. A judgment is not void because it fails to give the Christian name of the defendant. Par i denee is ailnii--.il. 1,- to identify the parties to such a judgment Bradf. Rogers, 2 U. C. ">?. A linal judgment in partition omitted one of the | shown in the pleadings to have an interest in tin- land. (Four persons were al- leged to own one-twelfth of the land. In the decree that share was allotted to of them by name: no mention was made of the other.) It 1 that it illicit * presumed, to MipjK>rt the judgment, that some reason was shown in tin- proceedings for the omission in the decree; but the omission did the decree void. Nor could parties not injured by the omission take advantage of it. Alston v. Km. ! (18 & W. Rep. 5M). iv judgment, when ambiguous as to the party or parties in favor of or against whom it is rendered, must be read in the light of th-- entire re. the cause in which it was rendered. Ihinlap v. Soutln-rlin, 63 T. 88. The failure to insert the full names of plaintiffs suing as a firm in the Hnnl judgment is no ground for reversal on appeal. The and costs of api-al im]M>sed upon appellant. \Vn-h' T. 644 (13 S. W. I In the judgment entry in a suit against Jame* I* T' md <;ilM-rt I.. M. Murphy, iwirtners, the name (hibriel appeared instead of Cilhert, ami it wa- held that as from the entire record it i-learl\ ap|-arvd that the name n>l \\.i- a clerical error, such error -1. .tioii a^aui-t the real defendants. Halx.dl v. M, -Murphy. M-, :??). A judKinent m favor of the firm of Case y & Swawy deeri.-l the partners as J. A .ud Charles Swasey. whereas their names and C. J. Sw.t-.-y." It followed the |-titioii. Kx.cuti-n issued on the ju lament, and the firm purchased land on a sale thereunder, and the d.-ed wan ma I to Casey & S\v :ttinn their I'hristian names. The ju.lgmei.' JUDGMENTS. [ 619. 620. 019. Certainty required in judgment entry. The entry of judgment must carefully recite the finding of the jury, or the several findings, if more than one, upon which the judg- ment is based. 1 It should contain in itself sufficient precision and certainty to enable the clerk to issue execution by the inspection of it, without reference to other entries. 2 The form is not material, if it contains the substance required by law. 3 It need not recite the facts on which it is founded. It is sufficient if they are stated in the pleadings and ascertained by the judgment. 4 A judgment for the plaintiff for a certain sum, subject to an offset agreed upon by the parties aforesaid, is void for uncertainty. 5 620. Must conform to the case made. The judgment must conform to the pleadings, the nature of the case proved, and the verdict, if any. 6 A judgment which does not conform to the pleadings, but goes outside thereof, and determines issues and grants relief not presented or prayed for, is erroneous, and will be set aside on appeal. 7 Recovery must be had upon the cause of action declared upon. If plaintiff fails to prove a specific contract, as stated, he cannot recover upon a quantum meruit* The amount of the recovery must correspond with the amount proved, if within the allegations. 9 The allegations in all cases must be broad enough to let in the proof, and no evidence, not supported by the allegations, can sustain a verdict and judgment. 10 not subject to collateral attack, and in a suit by Casey and Swasey concerning the land the deed was held sufficient to connect them with the title. Ballew v. Casey, 9 S. W. Rep. 189. On appeal it was urged as error that judgment had been rendered against the City Water Company of Austin in an action against the Austin Water, Light & Power Company. This was not reversible error where it appeared that the name was treated on the trial as the City Water Company of Austin. Austin Water, Light & Power Co. v. Makemson, 27 S. W. Rep. 588. i Rule 63. '-Stafford v. King, 80 T. 257; Roberts v. Landrum, 20 T. 47L 3 Hamman v. Lewis, 34 T. 474. Hamilton v. Ward, 4 T. 356. 5 Spiva v. Williams, 20 T. 442. Where the judgment entirely omits the sum adjudged, and makes no reference to the verdict, it is erroneous for uncertainty, although the entry commences by a recital of the verdict, which is for a sum certain. Barnett v. Caruth, 22 T. 173. R. S. 1335; Cooper v. Conerty, 83 T. 133 (18 S. W. Rep. 834). JOsborne v. Barnett, 1 App. C. C., 131; McKey v. Welch, 22 T. 390; Hall v. Jackson, 3 T. 305; DenisonV. League, 16 T. 399; Chrisman v. Miller, 15 T. 160; McArnis v. Mclntyre, 1 App. C. C., 514; Blum v. Ferguson, 1 App. C. C., 581 ; Menard v. Sydnor, 29 T. 257. 6 Jones v. Brazile, 1 App. C. C., 299; Gammage v. Alexander, 14 T.414; Chris- man v. Miller, 15 T. 160; Denison v. League, 16 T. 406; Lemmon v. Hanley, 28 T. 219; Cross v. Huffaker, 1 App. C. C., $ 136; Peet v. Hereford, 1 App. C. C., 871, 874, 875. 9 G., H. & S. A. Ry. Co. v. Buckley, 1 App. C. C., 687. 10 Rogers v. Harrison, 1 App. C. C., 495; Mims v. Mitchell, 1 T. 443; Hall v. 621.] JUDGMENTS. \Vhen the entire record shows that tho trial court, in rr-ndrring juil^iiK-nt, passed upon matters not fairly liefon* it lv tin: pl.-a in the case, and gave relief for which there was no j u -h judg- ment is erroneous, and will be reversed. 1 A judgment erroneous for want of issues by the pleadings will be corrected on appeal* 621. Must be based on the verdict. The judgment must conform to the verdict. 1 The verdict must iind all the issues made by the pleadings, in language which does not admit of mistake; it should be the end of conn-.. Thi judgment must be founded upon facts legally ascertained;* and the court must look to the verdict to determine what judgment to ren- der.' When a verdict is in response to special issues alone, the court will not look beyond the finding to any fact apparent in the r<- in aid of the judgment; the judgment must be sustained by the find- ing. 7 Resort can only be had, in supporting a judgment, to tho and to admissions contained in the pleadings. Hence, when the existence of a lien was declared by a judgment, but in rega; which both the verdict and the pleadings of the party ;i . horn Jackson, 3 T. 309; Paul v. Perez, 7 T. 845; Smith v. McGehee. 1 1 Wheeler v. Wheeler, 65 T. 573. A judgment rendered in favor of parties not mentioned as parties in the pleadings is error. Bell v. Vanzandt, 54 T. 150. When judgment is rendered against the principal in a note, and also against an indorser, on a petition which asks execution against the in.l.irser only, in the alternative, it is error to render judgment directing execution against the prop- erty of both, jointly. Lewis v. Dennis, 54 T. 487. When a judgment dispose* of the entire case as to all defendants, but affords specific relief to some of them. in response to their prayers, which was not afforded to others who did not ask it. it presents no cause for reversal Reeves v. Roberta, 63 T. 550. When issues on facts are found by the court, and its judgment pronounced on conclusions of law announced, the failure to find on a material issue about which the testimony is conflicting will be cause for reversal of the judgment. Marx v. Heidenhrimer, 63 T. 304. Where several parties join as plain tills in a suit to recover land, a judgment against the defendant, whu-h also ntte inpts to divest title out of some of the plaintiffs as agait r plaintiffs, is void when til-' pleadings raise no issue as between the plaintiffs, and may be im- peached collaterally. Sandoval v. Rosser, 2*3 a W. Rep, 980, * Williamson v. Wright, 1 U. C. 710. R a 1335: Tinnen v. Mathews, Dallam, 491 ; Burnett v. Harrington. 58 T. 858. Moore v. Moore, 67 T. 293 (8 & W. Rep, 284); Clendening T. Mat hews. 1 App, C C., g8 904, 905; Bledsoe v. Wills, 29 T. 650. M.i thews, 1 App. C. C, g 906. La Rue v. Ifc.u, r , 1 App. C. G, 1285; Claiborne v. Tam Pac. Ry. Co. v. Logan, 8 App. C C., 186; Kuhlumn v. Modlinka. 29 T. 885. V nlirt is fc.r ihe principal of a note, judgment cannot be entered al- interest and attorneys' fee* Freiberg v. HrunHwu-k-Kt . App, C. C., 142. When- tin- venlic-t finds a certain aura as dt->t. tho ..uri cannot U'l.l an additional sum as damages. Tinncn v. Mathrw*. Dallam, 49L "Smith v. Wan. D, 00 T. 462; Kuhliua.. nka, 29 T. 881 5SO JUDGMENTS. [ 622. it was adjudged were silent, there was no legal basis to support it, and this though the judgment contained a recital that the party orally admitted the lien after the charge to the jury was read, and before their retirement to consider of their verdict. 1 Where the finding of a jury under issues submitted to them could not possibly be arrived at without also finding another fact not expressed but necessarily included in the verdict, judgment can be rendered as if that fact had been positively found. 2 It matters not how a finding is expressed, so that the meaning of the jury is clear and tangible, and it is suggested that what is not expressed may be implied, pro- vided the implication be a necessary deduction from that which is directly stated. 3 622. Of the relief granted. The judgment must be so framed as to give the party all the re- lief to which he may be entitled, either at law or in equity. 4 Sub- ject to the limitations prescribed by law, that is, in cases in which they have jurisdiction, the district and county courts may grant any relief which may be granted by either courts of law or equity. 5 Formerly it was provided that such relief might be granted if prayed for, 6 but the condition is now omitted. The statute on pleading, however, still provides that the plaintiff shall state the nature of the relief which he requests of the court. 7 When there is only a prayer for specific relief the judgment will not go beyond it, 8 except in cases in which the relief is prescribed by statute. 9 Under the prayer for general relief the court grants 1 Handel v. Elliott, 60 T. 145. 2 Jones v. Ford, 60 T. 127. 3 Moore v. Moore, 6? T. 293 (3 S. W. Rep. 284). Where a verdict includes inter- est, a judgment not including such interest is not responsive. Irvin v. Garner. 50 T. 48. Plaintiff brought suit to cancel notes and deeds of trust and for other relief, and defendant, among other things, set up a lien on shares of stock trans- ferred to it by plaintiff. In the absence of an admission in plaintiff's petition, a judgment declaring such lien was error where the verdict contained no finding in regard thereto, although there was evidence to support the finding, if it had been made. Blakely v. El Paso Bldg. & Loan Ass'n, 26 S. W. Rep. 292. * R. S. 1335. SR. S. 1106, 1162; Henry v. Moore, 1 App. C. C., 881. 6 P. D., art. 1410. ' R. S. 1191. Wheeler v. W T heeler, 65 T. 573; Nowlin v. Hughes, 2 App..C. C., 314; City of Houston v. Emery, 76 T. 282 (13 S. W. Rep. 264); Osborne v. Barnett, 1 App. C. C., 131; Hillebrant v. Barton, 39 T. 599; Wyche v. Clapp, 43 T. 543; Moreland v. Barnhart, 44 T. 275; Moore v. Guest, 8 T. 117; Texas PI. (1893), 411. A judg- ment determining the extent of the interests of defendants as between them- selves, which is not prayed for by the pleadings, cannot be rendered. O'Leary v. Durant, 70 T. 409 (11 S. W. Rep. 116;. Hipp v. Huchett, 4 T. 20. -'*.] JUDGMENTS. such relief as the party is entitled to on the pleadings ami -S 1 although there be no specific jra\ Where the district court renders a decree foreclosing a mortgage, it has authority to issue a writ of assistance to put a purchaser under the decree in possession, on application to the court 1 Mient for that purpose, without re<|uirin<: him to resort to suit to obtain the possession. In cases of this character, it is said, it would Me the better and safer practice for t ho | ariv, in the con- cludiiu: prayer of his petition, to ask specially for all the particular 1. " This is, however, not necessary, and the practice in chancory has been, in such cases, to grant all the reliof necessary, whether it has been specially asked for or not. Such has been the :ice of the district courts of this state."* The party now ob- tains full relief by virtue of the statute. 4 623. When judgment rendered in certain ccses. Judgments rendered upon questions raised upon citations, plead- ings, and all other proceedings constituting the record pn|er a^ known at common law, must be entered at the date of each term when pronounced. Where a cause has been submitted to the judge for trial on the law and facts, it must be determined during the term, and judgment must be rendered at least two days lef<>iv the end of the term of the submission, if there has been a trial and mission one day before that time, unless the cause be conti after submission for trial, by consent of parties placed on the rec- ord. 5 A judgment rendered less than two days I *!' re the ; the term will not be reversed unless exceptions be saved at t Before the adoption of the rule it was not error, where no t- tion was made, for the judge to take the case under advisement render judgment at a subsequent term. To prevent the great diffi- culty which might arise in making up statements of facto and bills i Smith v. Clapton, 4 T. 109; Hardy v. De Leon, 5 T. 211; Nash T. George. 6 T. TraiiiiiH-11 v. Watson, 25 T. Sup. 210; Cravens v. Wilson, 48 T. 894; Voigt- lan.k-r v. Brotze, 59 T. 286. 'Hardy v. De Leon, 5 T. 211. 240; Goodman v. Hml.-y. 80 T. 499 (18 a W 4::-.- . Voigtlander v. Brotze, 59 T. 286, citing Hardy T. Le Leon. 5 T. 246; Trai. r. Wats, ,n. '.- T. Sup. -JW; Hipp v. Hu.-h.-tt. 4 T. 20t * Acts of 1885, jx 10; R. S. 1341. iles 65, 66. An amendment of a judgment. un th.- juil^e on the law at in. .iv than three days before the close of the term, violativo of rule 61 M.-1'lu-rs..n v. Johnson. 69 T. 4H4 (fl S. W. Rep. 7V8). Glenn v. Kinil.r.u k 'h. 7oT. l IT 18 a W. Rep. 81). There fa no error in r. ing judgment on the last day of th.- t MM \viu -n the cause fa submitted to the court on that day. Stark v. Miller, 63 T. 164. JUDGMENTS. [ 624. of exceptions, and other embarrassing questions, should the practice prevail, without proper limitations, of taking cases under advise- ment until a succeeding term, was doubtless the object of the rule. 1 The rule was adopted upon mature consideration. It was suggested by experience of its necessity, and was not intended as a mere brutum fulmen? % 624. Recitals in judgments. The trial courts should see that the recitals in their judgments in regard to the service of process and the appearance of the parties are strictly true. It is said that a want of accuracy may lead to irreparable injury. 3 Where the recital is to the effect that the court fully heard and understood the pleadings, etc., it is taken as conclu- sive against an objection urged that the judgment was by default, in the absence of anything appearing in the record to support the objection or contradict the recital. 4 It is not necessary to recite the facts in the judgment. 5 "When the meaning of a decree from its terms is involved in doubt, it must be construed in the light of its recitals, 6 The judgment entry ought to be made to show affirmatively what exceptions to pleadings were sustained, and the court on appeal will not supply such omissions, by construction or otherwise. 7 If a judgment of the district court be correct, its validity cannot be affected by the fact that the presiding judge gave a wrong rea- son for it. 8 The entries made by a district judge on his docket are for his own convenience and that of the clerk in making his entries. They form no part of the record, and, in case of a discrepancy be- tween such entries and those made in the records of the court by the clerk, the latter must prevail, 9 1 March v. Huyter, 50 T. 243. 2 Camoron v. Thurmond, 56 T, 22, 3 Ingle v. Bell, 84 T. 463 (19 S, W. Eep. 553), < Leberman v. Hill, 1 App. C. C., 26. When it is shown that defendants against whom judgment was rendered were served with process, the omission of the judgment to contain a recital that they appeared, either in person or by attorney, is not material Caldwell v. Brown, 43 T. 216. 5 Sears v. Green, 1 U. C. 727, citing Hoffman v, Bo wen, 17 T. 507; Cook v. Han- cock, 20 T. 3; Hamilton v. Ward, 4 T. 356. In Patton v. Mills, Dallam, 364, it is said that in cases in equity, where the testimony is in pais, it is usual to embody the material facts in the decree; but that where the facts are matters of record, it is not usual or necessary to state the grounds of the decree on its face. STorrey v. Cameron, 73 T, 583 (11 S. W. Kep. 840). 7 Broussard v. Railway Co., 75 T. 702 (13 S. W. Rep. 68). 8 Swift v. Trotti, 52 T. 498; Watkins v, Junker, 4 Civ. App, 629 (23 S, W, Eep. 802). * Stark v, Miller, 63 T, 164. C25.] JUDGMENTS. 625. Entry nuno pro tone. rv court has a right to judge of its own records and minutes; and if it appears satisfactorily to it that an order was actuallv at a former term and omitted to be entered by the clerk, tlu court may at any time direct such order to be entered on the roo- as of the term when it was made. And a record so amended stands as if it had never been defective, or as if the entries had been made at a proper term. 1 But an entry nunc pro tune cannot be made at a subsequent term, after final judgment, without notice to the opposite party. 2 Great latitude has been allowed to courts in making entries nunc pro tune, but generally judgments will not be entered nunc pro tune unless there is something in the record by which it can be known that in fact the judgment was rendered. But although there may not be sufficient in the record to make an order or judgment relate back to the time when it was actually rendered, it may still take effect as a valid judgment from the time it is actually entered. 3 The judgment proper is what is ordered and considered by the court, and is a judicial act; the entry of judgment is ministerial, and is necessary to preserve the evidence of what was in fact ordered by the court. To authorize the entry of a judgment nunc pro tune, the proof that it was rendered should be definite and absolute absolute from the record that a judgment was rendered, and its terms and conditions should be distinctly established by competent testimony. 4 Judgments nunc pro tune are never permitted to affect the rights of such persons as have acquired rights between the time a judg- i Rhodes v. State, 29 T. VSS. * Wheeler v. Goffee, 24 T. 660. Misprision of the clerk in failing to enter judg- ment nisi may be corrected by entering judgment nunc pro tune at the time of entering final judgment Ward v. Ringo, 2 T. 420. Kelly v. Belcher, 1 App. C. C., g 1126. It is held that a judgment entered upon the minutes of the clerk nunc pro func, without notice to the party against whom it was entered, and without evidence in support of the motion, was without authority of law. Reference is had to article 1350, Revised Stat- utes, which provides for the correction of a mistake in the record, on notice to the opposite party. Cowart v. Grain, 1 App. C. C., g 184 Camoron v. Thurmond, 56 T. 22. In this case there was nothing of record showing that a final judgment was rendered, and, of course, nothing as to the character of the finding by the court. The court say: "If the character of the judgment delivered is to be established by evidence outside the record, the testi- mony should be as full and ample and with all the sanctions necessary to estab- lish any other fact The judge's notes upon the docket his opinion filed, when the law requires him to write and file an opinion, have been received. The eri- donee which, under our statute, is admissible to amend a judgment by, would be sufficient doubtless, to supply one. So as, under a rule of court, it is required of tbo rounsei of the party who has obtained the judgment to prepare the de- cree and submit it to the judg* for his approval, testimony might be received to show the character of the judgment rendered by the copy of the decree prepared, and that it had been accepted by the judge and ordered to be so entered." 500 JUDGMENTS. [ C26. ment is really rendered and the time at which it was entered upon the minutes now for then. 1 Though the court may erroneously hold that a defendant is not in court in such manner as to authorize a judgment by default, such error cannot be revised at a subsequent term of the court upon a motion to enter a different judgment nunc pro tune. A judicial error in entering up an order at a former term, which was not sanc- tioned by law, or the failure to enter up one which should have been rendered but for the incorrect ruling of the court upon points made before it, cannot be remedied by a judgment to the contrary entered nune pro tune. 2 g 626. Judgment by consent. The cases are numerous in this state in which judgments by con- sent, or by agreement of parties, have been sustained. A judg- ment so entered constitutes an estoppel, and will stand against a collateral attack;* it is a waiver of all errors committed before its rendition. 4 The parties and their privies are estopped, in the ab- 1 Eastham v. Sallis, 60 T. 576, citing Freeman on Judgments, 66; Jordan v. Petty, 5 Fla. 326; McCormick v. Wheeler, 36 III 114; Graham v. Liznor, 4 B. Mon. 18; Aoklen v. Acklen, 45 Ala. 609; Ligon v. Rogers, 12 Ga. 281; Perdue v. Bradshaw, 18 Ga. 287. -Perkins v. Dunlavy, 61 T. 241. A court having once held that a citation to defendant was invalid, that no appearance had taken place, and that a judg- ment by default could not be rendered, has no authority, at a subsequent term, to reverse its decision, overrule the motion to quash, pronounce judgment by default, and execute a writ of inquiry. For such errors the defeated party has his remedy by appeal after final judgment But if the suit was for damages tor a tort, he cannot, by reviving an action (after the death of the defendant) against the administrator, have the issue tried as to whether he was entitled to a judgment against the deceased in his life-time, and thus cause the adminis- trator to defend against a claim for damages, the right to recover which ceased with/the original defendant's death. In every case, to entitle an applicant to have his judgment entered nunc pro tune on account of the death of one of the parties, the action must, at the time of the death, have been ready for the rendition of the final judgment Such is not the case when a trial has still to take place. City of Goliad v. Weisiger, 4 Civ. App. 653 (23 S. W. Rep. 694). In Gunter v. Fox, 51 T. 383, a judgment rendered on the agreement of the administrator was binding on the heirs. In Hollis v. Dashiell, 52 T. 187, it was held that though consent to a judgment by a guardian ad litem against his ward, or an administrator against the estate, in the absence of evidence, may be erroneous, the judgment is not void by reason of such consent In Ivey v. Harrell, 1 Civ. App. 226 (20 S. W. Rep. 775), it was said that the fact that the judgment was rendered upon the agreement of the special guardian did not render it void; that the guardian acted under the supervision of the court, and in a collateral proceeding it must be presumed that the court ascertained the facts upon which the agreement was based, and allowed no wrong done to the minor. 4 Tait v. Matthews, 33 T. 112; McDaniel v. Monday, 35 T. 39. A judgment for plaintiff after answer, with stay of execution, is a judgment by consent Bur- ton v. Varnell, 1 T. 635; Hutchinson v. Owen, 20 T. 287. -7.] JUDGMENTS. 591 scnce of fraiul, from denying that they assented to a conseht It is no valid objection to a judgment by consent that the cause of action was so defectively stated as to require a reversal had the judgment been rendered on a contest of rights between the pa; The effect of such a judgment is a waiver of all errors except such as would involve the jurisdiction of the court. 1 A r-.urt of equity will only st-t aside a judgment rendered upon an unauth.i agreement of counsel when injury has resulted therefrom to the party complaining. Every reasonable presumption will be indi. in favor of a settlement made by an attorney dulv empl pecially after it has been recognized by a court and a judgment thereon has been rendered. 1 ? 627. Excess in judgment. A judgment must not exceed the amount prayed for. 4 A judg- ment for a larger sum than that claimed by the pleadings is errone- ous.* In some cases, where the excess is trifling, the maxim d* 'mis is applied.* A judgment for the full amount claimed must be supported by the evidence. 7 l Cannon v. Heinphill, 7 T. 1S4. -'Lessing v. Cunningham. 55 T. 231; Garner v. Burleson, 26 T. 848. 1 Williams v. Nolan, 53 T. 708. Acquiescence in a judgment does not neces- sarily constitute a ratification. Whether there has been such an acquie*' as to amount to a ratification is a question of fact for the jury. Sneed v. Town* send. -,' a. i '. :0. A judgment in the district court entered upon consent of the parties, that the plaintiff recover the lot in controversy and vesting the titl- thereto in the plaintiff, but ascertaining the purchase-money due, and postponing the issu- ance of a writ of possession until the payment of the purchase-money should be made, is conclusive between the parties as to the title to the land, also against purchasers with notice. That the judgment provided for arbitration to ascertain the balance of purchase-money due did not affect the question of title. The court had the power to ascertain the facts ujx.n which the issuance of the writ of possession was made to depend. Henderson T. Moss, 83 T. 90 (18 a W. Rep. 555). An agreement of parties under which a judgment was rendered does not en- large the scope of the estoppel of the judgment when it was such as pi would have been entitled to without the agreement. Willis v. Pounds, Civ. APJX 512 (25 & W. Rep. 715). Wilkins v. Burns, 25 & W. Rep. 431. Hillebrant v. Barton, 39 T. 598; O., G & 8. F. By. Co. v. Thompson, 4 Apfx C. G, 15. Leberman v. Hill, 1 App. G G, g 27; Rankin v. Filburn, 1 App. C, G, 7*8. U & G. N. Ry. Co. v. Saul. 2 App. G G, g 699l The recital in the judgment that the purchase-rnoney with interest from an incorrect date amounts to a stated sum is immaterial, when it appears that the amount for which the judg- ment was rendered, being the amount so stated, does not exceed the si. which the I'.-uty complaining* was justly liable. Dean v. Blount, 71 T. 168). A judgment for $130 is erroneous where but $100 is demanded. Warren v. 592 JUDGMENTS. [ 628-630. 628. May include interest, when. Judgment may be rendered in the aggregate for the debt and in- terest due at the time. 1 In rendering judgment upon facts found by the jury, the court cannot add a fact not included in the verdict, as interest on the sum found, where interest did not follow as an incident, even though the uncontradicted testimony showed the fact so found. 2 A judgment will bear legal interest from its date with- out any recital therein to that effect, and may be entered so as to bear interest without any prayer to that effect. 8 The legal rate on jndgments is six per cent. ; but if the contract on which the judg- ment is rendered bears a specified rate greater than six per cent, and not exceeding ten per cent., the judgment shall bear the same rate. 4 629. May be for or against one or more parties. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and against or for one or more of several defendants or interveners. 5 In an action for conversion by tenants in common, a judgment may be rendered against one plaintiff and in favor of the others. 6 It is error to render judgment against some of the defendants without having discontinued as to others not served. 7 Where one of several defendants fails to answer and the case goes to trial, and there is a verdict for the defendants, it is error to render judgment in favor of all the defendants, although a judgment by default might not be taken against the defendant who failed to answer. 8 630. Description of land. A judgment in trespass to try title must describe the land with sufficient certainty to identify it ; otherwise it is void. 9 It should contain a description such as would be a guide to the sheriff in exe- cuting a writ of possession ; failing in this, the judgment will be re- versed. 10 A judgment will be reversed when for the recovery of Prewett, 25 S. W. Rep. 647. Opinion evidence that certain work could be per- formed in from twelve to fifteen days does not justify a judgment for twenty days' work. Ostrom v. Smith, 25 S. W. Rep. 1130. 1 Frazier v. Campbell, 5 T. 275. 2 Aiken v. Jefferson, 65 T. 137; Connor v. Elkins, 66 T. 551 (1 S. W. Rep. 798). s Ross v. McGuffin, 2 App. C. C., 459. < R. S. 3105. R. S. 1336. Ward v. Gibbs, 80 S. W. Rep. 1125. 7 Rhone v. Ellis, 30 T. 80. 8 Wells v. Moore, 15 T. 521. Where an indorser was sued but not served, it is immaterial that the judgment by default took no notice of him. Battle v. Eddy, 31 T. 868. Hearne v. Erhard, 83 T. 60. 10 Jones v. Andrews, 72 T. 5 (9 a W. Rep. 170). Where the value of the im- 1.] JI-DGMENT8. 593 land not described in the pleadings nor in the verdict. 1 It has been lifld that ;i ireneral description of the premises sued for is sutfi< unless a different rule tie prescribed by statute. 2 The statute pro- vides simply that the judgment shall describe the premises. 1 'idirmem enforcing a vendor's lien should describe the land so enable the sheriff to execute it. Where the judgment gives the distance of certain lines, different from that set out in the lings, and still calls for the same well-known corners as those described in the pleadings, it will be a good and sufficient judgment "in-rating upon all the land included between the corners.* A judgment directing land to be sold, the order of sale made thereunder, and sheriffs deed to the land, must contain such de- scription of the land sold as will enable a person familiar with it to identify it from the description given. 6 i 631. Only one final judgment. Only one final judgment shall be rendered in any cause, except where it is otherwise specially provided by law. 7 If one or more of several defendants are in default, an interlocutory judgment may be entered against them; but only one final judgment can be entered.' When the judgment disposes of the entire case as to all d.-f ants, but affords specific relief to some of them, in response to their provements of several defendants is involved, the judgment should show the >].. . ific portions claimed by each defendant Miller v. Moss, 9 S. W. Rep. i Roche v. Lovell, 74 T. 191 (11 a W. Rep. 1079). -' Knowles v. Torbit, 53 T R. & 5v Murray v. Land, 27 T. 89; Slater v. Wilkins, 87 T. 667. In a suit to enforce a vendor's lien on land for the payment of a note given for the purchase-money, there was no specific description of the land set forth in the petition in terms, 1'iit reference was made for further description to a deed executed by the vendor. Judgment was rendered for the amount due on the note, and ordering the sale of land not specifically described in terms by the judgment, t 1 to as described in a deed recorded on certain pages of the county record of deeds. The description of the land was sufficiently certain, the same being rthsoas to be identified with certainty in tin- deed. The fa i. -iit described the land further than as averred in the pleadings by refer- to the jmrticular registry book and page in which the 33.] JUDGMENTS. .-,..;, fiduciary capacity. The extent of the power in such cases is to decree that the }>erson invested with the title make convevunce of it, which may be enforced by personal process. The decree is not effectual unless the owner in person executes a conveyance. 1 633. Enforcement of judgment; judgment for delivery of personal property. The court must cause its judgments and decrees to be carried into execution; and where the judgment is for personal pro]" and it is shown by the pleadings and evidence and the verdict, if any, that the property has an especial value to the plaintiff, tin- court may award a special writ for the seizure and delivery of the property to the plaintiff, and may, in addition to the other relief granted in such case, enforce its judgment by attachment, tine and imprisonment. 2 Any process issuing from a district court under which property may be sold is, within the meaning of the law, an execution. 1 A writ of execution is the embodied power of the court in the shape of a command to a ministerial officer respecting the rights of the parties to the judgment. 4 In an action of detinue, where the judg- ment is for the plaintiff for the property sued for or its value, the plaintiff is entitled to have the specific property, if it can be found, and the judgment cannot be satisfied in the first instance by the payment of the adjudged value of the property. The alternative judgment is for the benefit of the plaintiff and not of the dc: ant. 5 ' M-.rris v. Hand, 70 T. 481 (8 S. W. Rep. 210); Moseley v. Burrow, 53 T. 896; il v. A.-klin. 27 T. 175; Tex. & Pac, Ry. Co. v. Gay. 86 T. 571 (26 S. W. Rep. 599). The court in an action involving the title to land pursuant to an agree- nifiit between thf p.irtifs entered a decree dismissing the suit and decreeing that certain deeds prepared in accordance with the agreement be placed in tlu> clerk's hands to be delivered to the several grantees when duly executed. the lapse of thirteen years plaintiff might make a motion to coin|--l the execu- tion of the deeds as agreed on, and jurisdiction to enforce execution was not lost by the entry of the judgment of dismissal. Haynie v. McAnally, 27 S. W. Rep. R. a 1339. 'Smithwick v. Kelly, 79 T. 564 (15 S. W. Rep. 486); Pierson v. Hammond, 28 T. >-,. Henry v. Moore, 1 App. C. C.. 882; Lockridge v. Baldwin. 20 T. 807. Henry v. M. u ,-. 1 App. C. C., g 880. It is not a valid objection to the admis- hibility of a judgment in evidence as a link in a chain of title to land that it dir.-.-tsthe execution to be levied upon the "effects "of the defendant Un- -d by the context, the w. ts" is generally li 1,1 t<> include only per- sonal property; but no distinction could properly have been made by the court rendering the judgment between real and personal property, as both were equally subject to the debt, and it was "not necessary for the judgment to define what property was to be levied on, further than to indicate that it was to be satisfied put of the property of the defendant Horton v. Garrison. 1 Civ. App. 81 (20 8. W. Rep. 773). .596 JUDGMENTS. [ 634. When a judgment declares the rights of the respective parties, the court may subsequently direct such process or make such orders as may be necessary to carry its judgment into execution. 1 Judgments of the supreme court and courts of civil appeals are enforced by the proper process issued thereon by the clerk of the lower court, on receipt of the mandate, without any further order or decree by the lower court. 2 634. Foreclosure of liens. Judgments for the foreclosure of mortgages and other liens are that the plaintiff recover his debt, damages and costs, with a fore- closure of the plaintiff's lien on the property subject thereto, and (except in judgments against executors, administrators and guard- ians) that an order of sale shall issue to the sheriff or any constable of the county where such property may be, directing him to seize and sell the same as under execution, in satisfaction of the judg- ment; and if the property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to make the money, or any balance thereof remaining unpaid, out of any other property of the defendant, as in case of ordinary executions. 3 A judgment decreeing the sale of land, upon which a vendor's lien is foreclosed, and, in case the proceeds arising from such sale are insufficient to discharge the judgment, that execution issue for the balance, is correct. 4 The judgment should order the surplus proceeds of the sale to be paid to the purchaser from the vendee. 5 The judgment foreclosing a mortgage must follow the statute, i Smith v. Miller, 66 T. 74 (17 S. W. Rep. 399). This was a suit for the specific performance of a verbal contract for purchase of land. Judgment was rendered in favor of the plaintiffs for the land, and required plaintiffs to pay money to the defendants, but gave no execution for its collection. On appeal the judgment was affirmed, and the court say that if the plaintiffs fail to pay as directed the defendants may ask and have all orders necessary to their protection. Where the judgment is for plaintiff in a suit to establish a lost certificate of stock transferable by indorsement, the judgment should provide for ample in- demnity to the company, and the cause should remain on the docket until from lapse of time or otherwise the risk of the company has ceased. Galveston City Co. v. Sibley, 56 T. 269. *R S. 983, 1035. 3R. S. 1340; Pfeuffer v. Wilderman, 1 App. C. C., 1172. 4 Alf ord v. Wilson, 62 T. 484 The decree should direct a sale of the land in the county in which the land is situated. Dalton v. Rainey, 75 T. 516 (13 S. W. Rep. 34). When a vendor's lien exists upon a tract of land and the vendee has sold parts of the land for cash to purchasers with notice, upon a foreclosure of the lien against the maker of the note and his vendees of parts of the land the decree should provide for the sale first of that part of the land owned by the original vendee, and next in inverse order of the time of the several purchases of the land by the subvendees. Krause v. Pope, 78 T. 478 (14 S. W. Rep. 616). * Llano Imp. & F. Co. v. May, 24 S. W. Rep. 40. 635-637.] JUDGMENTS. whether it be a mortgage of personalty or of realty. 1 It has long been the established practice, that, when' the plaintiff has a mort- gage upon land, he may, in the first instance, as between himself and the mortgagor, or a subsequent purchaser with notk-f, obtain both a personal judgment against the mortgagor and a foreclosure; this is the practice indicated l.\ the statute. 2 ^ a judgment is rendered against an administrator foreclosing a mort- gage given by his intestate, the judgment must be certified to the county court and the property must be sold by the admini>' under proper order of the court. A sale by the sheriff as on exe- cution conveys no title.* 635. Writ of possession awarded. When any order foreclosing a lien upon real estate is made in a suit having for its object the foreclosure of such lien, such - has the force and effect of a writ of possession as between the parties to the suit and any person claiming under the d. by any right acquired pending the suit, and the court m rect in the judgment providing for the issuance of the order; and it is the duty of the sheriff or other officer executing the order of sale to proceed by virtue of such order to place the purchaser of the property in possession within thirty days after th- day of sale.' A writ of possession returnable in ninety days is void after the ninety days have elapsed. 4 636. Judgments on appeal or certiorari from county or justices* courts. Judgments on appeal or certiorari from a county court sitting in probate are certified to such court for observance. Judgments on appeal or certiorari from a justice's court are enforced by the count v court.' ?' 637. Judgments against executors, etc. Where a recovery of money is had against an execu' r or guardian, as such, the judgment must state that it is to be i Frankel v. Byere, 71 T. 808 (9 & W. Rep. 160). = Delespine v. Campbell. 53 T. 4. Meyer^ .68 T. 466 (5 & W. Rep, 66); Emmons % n. W In giving judgment against two mortgagor*, the estate of one UMNK in probate, all propt-n :n th.- mortgage was onl.-r.-.l t<- !* *>l,l. It w.i- unless it appears! that t h- mortgage was a partnership tnu partnership pmjHTty. only th.- int.-r.-st of th.- mortgagor living ni. ordered sold, and th.- Judgment should have beet. ^xmrt for observance. Watson v. Blym.-r Mfg. Co.. W T. 558 (2 a W. Rep, 358). R. a 1341. In Voigtlandrr v. Kr..t/.>. -W T. 2*6. decided before the adoption of the above statute, a writ- of assistance was awarded on application by one entitled to possession of l:m I un.l Reagan v. K A pp. H II s. \\ Rep. 427). aasao, 598 JUDGMENTS. [ 638. paid in the clue course of administration. No execution issues on such judgment. It must be certified to the county court sitting in. probate, to be enforced in accordance with law. A judgment against an executor appointed and acting under a will dispensing with the action of the county court in reference to the estate is enforced against the property of the testator in the hands of such executor by execution as in other cases. 1 It is error in rendering judgment against an administrator to order the issuance of execution. 2 638. Final judgments. A judgment is final which disposes of the whole matter in con- troversy, as to all parties ; 3 it awards the judicial consequences which the law attaches to the facts, and determines the subject- matter of controversy between the parties. 4 The rules for deter- mining the finality of judgments at law are simpler and of easier application than those which apply to decrees in equity. The cases decided, it is said, range themselves into classes in which the inter- locutory character of a decree will result from a partial or incom- plete disposition made as to all who are parties to the suit, or, it may be, from the incomplete determination of all the matters which are in controversy under the pleadings; or it may result from the indecisiveness of the judgment rendered in respect to the merits of the suit, because of its relating to a matter merely collateral to the merits of the subject of controversy. In all and in any of these supposed instances thfere would remain the necessity for further ac- tion by the court, to be shown by the record, in order to settle and determine the whole of the case. The judgment must in substance show intrinsically, and not inferentialiy, that the matters in the record have been determined in favor of one of the parties, or that the rights of the parties in litigation are adjudicated. 5 !R. S. 1344, 1345. The issues concluded by the judgment cannot be r?opened in the county court, the duties of that court being only in relation to classifica- tion and payment. Paxton v. Meyer, 67 T. 96 (2 S. W. Rep. 817). See Willis v. Bryan, 33 T. 429; Robbins v. Walters, 2 T. 130. As to independent executors, see McKie v. Simpkins, 1 App. C. C., 282. 2Mott v. Ruenbuhl, 1 App. C. C., 603. 3 Linn v. Arambould, 55 T. 611; Lay v. Bellinger, 1 App. C. C., 24; Martin v. Crow, 28 T. 614; Simpson v. Bennett, 42 T. 241; Mo. Pac. Ry. Co. v. Houston Flour Mills Co., 2 App. C. C., g 573; Cannon v. Hemphill, 7 T. 184. 4 Hanks v. Tompson, 5 T. 8; West v. Bagley, 12 T. 34 5 Linn v. Arambould, 55 T. 611. This was a suit to cancel deeds on account of fraud in their procurement; the judgment was for the plaintiff, directing a writ of restitution and execution for costs, but reciting that, inasmuch as a new trial had been granted in regard to the issue raised by the pleadings ad to the amount of the purchase-money paid by defendants, the judgment or decree can- celing the deeds should be held in abeyance until that issue should be deter- mined. It was held: (1) There could be no final judgment from which an appeal or writ of error could be prosecuted, until all the issues as to all the JUDGMENTS. 1'ntil tlicre is a judgment which leaves nothing to be fur litigated in the case, unless it be something which relates to the execution of the judgment, there is no final judgment, 1 Th- judg- ment must contain the decision or sentence of the law pn.m.i by the court upon the matter contained in tin- that tho clerk has been ordered to a>sess the damages is not sufficient.- It o.iitaiu: (1) The facts judicially ascertained, witii the manner -eertaining them entereil of record. u' The rec<>: iara- - of the court, pronouncing the legal consequences of the : thus judicially ascertained. 3 A judgment of sal maybe a final judgment. 4 A gei:- demurrer which admits the facts stated by the plaintiff, when tained by the judgment of the court, is as conclusive of the cause tion as if the plaintiff had proved them and a judgment had rendered against him.' 1 The judgment must determine the controversy as to all the parties,* including an intervener, 7 or a deceased partner or his repre>< parties had been finally adjudicated in the district court. c.M No order or de- cree which does not preclude further proceedings in the case in the court below can be regarded as final. (3) The defendants having prayed for a condemna- tion sale of the land to satisfy their claim for purchase-money, and that issue MHIK undisposed of, the judgment was interlocutory. from which no ap- peal could be taken. (4) The cause should proceed in the district court as though no trial had occurred. (5) The district court should allow the case to be reinstated on its docket after notice. See Scott v. Kurt on, 6 T. 323. In Mo. I 'a,-, lly. ( ... v. Houston Flour Mills Co., 2 App. CL C that, for the purpose of determining whether an appeal bond was filed m the judgment overruling a motion for a new trial is tin- final judgment in anil that the judgment previously rendered is only r/uaxi-final. Tex. & Pac. Ry. Co. v. Railway Co., T:. S. W. Rep. 977). - illis, 60 T. 576. 3 Fitzgerald v. Evans, 53 T. 461. A judgment of revivor, which simply recites and verities the rendition of the former judgment, and makes no provision for -nance of execution to enforce the collection of the amount formerly ascertained to be due, is not a final judgment i ker v. Spencer, 61 T. 155; Ewing v. Cohen, 68 T. 482; Watts v. Overs; \V. I;. |, . TIIJ , Km , ;t dismissing an injunction - :on is not a final judgment Wagn<-r v. Kdmiston, 1 A pp. ' final judgment cannot be rendered in vacation or at chambers. Aiken \ rpU,87T. 7& Bomar v. Parker, 68 T. 435 (4 a W. Rep. 599). It is held that the declara- .ntaine.l in the opinion delivered in Hughes v. Lane, 83 T. 838, to the ef- uit a judgment on demurrer is not oOOOlMtat* WM "t necessary to the >n of that case, and cannot be maintained either on or on au- thority. L & O. N. Ry. Co, v. Smith Co., 58 T. 7 1. : Linn v. ArambouM. V. T. 611. ' Hensley v. Bagdad Sash Fa. t.,ry Co.. 1 App. r. ('.. J- T'.N); Stephen- nant. 1 App. C'. ' I .ili'-n-t.-rne \ nent irtition stiit 1^ not final wli.-re tli, nil. -rest of a party plair.- life interest in a part of the land is not pasted upon. Nor is the judgment aided 600 JUDGMENTS. [ 638. But any judgment is final which disposes of the matters in contro- versy as to all the parties to the suit. 1 A judgment for costs which does not dispose of the subject-mat- ter of the suit is not final. 2 A judgment that the plaintiffs take nothing by their suit, and that the defendants go hence without day, etc., proceeding to dispose of the costs, is a complete disposi- tion of the cause. 3 by a disclaimer filed subsequent to the judgment by the party claiming such life estate assigning and filing his transfer in the record, transferring his right to his daughter, who was a party. Mignon v. Brinson, 74 T. 18 (11 S. W. Rep. 903). 1 G., C. & S. F. Ry. Co. v. Ft W. & N. O. Ry. Co., 2 S. W. Rep. 199. In a suit against several, when the judgment of the court sets aside a verdict as to one or more, and as to them continues the cause, a judgment entered against an- other defendant as to whom the verdict is approved is a nullity. There can be but one final judgment. It matters not how many defendants there may be,, there can be no final judgment against one until the case is finally disposed of as to all. A new trial granted to one operates as to all. Martin v. Crow, 28 T. 614; Hulme v. Janes, 6 T. 242; Wooters v. Kauffman, 67 T. 488 (3 S. W. Rep. 465). In a suit against two defendants a judgment in favor of the plaintiff and against one of the defendants, the record not showing any disposition of the case as to the other, is not a final judgment from which an appeal will lie. Mo. Pac. Ry. Co. v. Scott, 78 T. 360 (14 S. W. Rep. 791). A judgment in trespass to try title, in favor of plaintiffs and against two of three defendants, without mentioning the third, is not final. Masterson v. Will- iams, 11 S. W. Rep. 531. A judgment against one of three defendants, the record failing to disclose whether the other two were served, made a voluntary appear- ance, or what action was taken regarding them, is not final. Rodrigues v. Tre- vino, 54 T. 198. When suit is instituted against two or more, in which judgment is rendered in favor of all the defendants except one, who is not referred to in the judgment, the judgment is not final, no order having been entered dismiss- ing the cause as to the defendant not mentioned in the judgment. Whitaker v. Gee, 61 T. 217; Bradford v. Taylor, 64 T. 169. When, in a suit involving the claims of a number of parties, judgment is ren- dered in favor of one and against another on one of the issues involved, and. from that portion of the judgment the complaining party takes no appeal and assigns no error based on the judgment as to that issue, the judgment of the court below will be treated, in so far as it determined the particular issue, as final. Lovenberg v. The Bank, 67 T. 440 (2 S. W. Rep. 874). 2 Eastham v. Sallis, 60 T. 576. See Graves v. Campbell, 74 T. 576 (12 S. W. Rep. 238). 3 Sydec v. Duran, 2 U. C. 304. A judgment dissolving a temporary injunction, and for costs, but not otherwise disposing of the subject-matter of litigation, is not a final judgment, and will not support an appeal. I. & G. N. Ry. Co. v. Smith County, 58 T. 74. A temporary injunction was granted. The defendant answered under oath, denying the material allegations in the petition; also in reconvention sought to recover damages for the wrongful suing out of the injunction. A motion to dissolve was sustained. The plaintiff then waived its right to have the cause tried upon the merits, and asked that final judgment be entered, which the court refused. Plaintiff then asked that its petition be dismissed, which was done, and costs adjudged to defendants, who also at the time brought the atten- tion of the court to the fact that they desired a hearing upon the matters in, 639.] JUDGMENTS. A judgment which does not dispose of all the defendants nor of all the subject-matter of the controversy does not deprive the of jurisdiction to render a final judgment at a subsequent ?' 630. Interlocutory judgments. An interlocutory judgment is one given in the progress of a cause upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit.- It is the sub- stance, and not the form or the shadow, which is regarded in deter- mining whether a judgment is final; a judgment final in form. which is set aside, either rightly or erroneously, becomes an i. their reconversion. No disposition having been made of the plea in reconven- tion, it was held there was no final judgment Tex. & Pac, Ry. Ca v. Railway Co., 75 T. 82 (12 S. W. Rep. 9771 A judgment for costs, without an order disposing of the controversy, to not & final judgment Green v. Banks, 24 T. ">22: Neyland v. White, 25 T. 319; Holt v. Wood, 23 T. 474; Fitzgerald v. Fitzgerald, 21 T. 415. When the record recited that plaintiff took a nonsuit and afterwards that he moved the court to set aside the nonsuit taken in this case, etc., which motion was overruled, n: dered that the plaintiff pay all costs, etc.. but there was no judgment that the plaintiff be nonsuited, or that the suit be dismissed, it was held not to be A final judgment Hanks v. Thompson, 5 T. 6: Scott v.' Burton, 8 T. 322; Ham < Metz, 7 T. 177. "This day came the plaintiff by his attorney, and acknowledge* to have received the full amount sued for; it is therefore considered by the court that the plaintiff have and recover from said defendants all costs in their behalf expended, for which execution may issue:" held not to be a final judgment Martin v. Wade, 22 T. 224. The following entry was held to be a final judp although informal: " And now come the parties and announced ready for trial, and defendant moves the court to dismiss plaintiffs' (their) cause, which motion is by the court sustained, and said cause dismissed; to which ruling of th. plaintiff excepts. It is therefore considered and adjudged by the .-..art that said defendant do have and recover of said plaintiff all of the costs in their behalf expended, to be taxed, for which let execution issue." Hagood v. Grimes, 24 T. 15. There was a judgment establishing the right of plaintiff to land, debts, etc.. embraced in the report of auditors, and decreeing that the defendants should convey the land, etc., but reserving for the further consideration of the court, at its next term, so much of the report as finds $1,151.43 due plaintiff, and order- ing costs to be paid equally by both parties. Held to be final Merle v. Andrews, >0. And a judgment ascertaining the rights of parties in land, and ap- pointing commissioners to divide the land in accordance with the judgment and make due return at the next term of the court, is final Cannon r. Hemp- hill, 7 T. 1*4; Whit.- v. Mitchell, 69 T. 164. And it is not lens final because the disposition of costs to reserved until after the report of the commissioners, Mo Farland v. Hall, 17 T. 676. A judgment which on its face purports to hare been rendered on a trial upon the merits cannot at a subsequent term be affected by parol evidence sh< that it was not after trial on th.- in. Tits, but was entered by consent. I judgment declared the respective interests of the parties to the suit in land and decreed its partition, it was the duty of the court to act on it as a conclusive ascertainment of the rights of the parties, and to effect partition as required by the judgment Petrucio v. eaniun. 76 T. 639 (13 a W. Rep. 800) i Reed v. Liston, 8 Civ. A pp. lia *3 Black. Com. 396; Kennedy v. Morrison, 81 T. 907. 002 JUDGMENTS. [ 640. iocutory order, although it may be the subject of revision at some time. Such orders, judgments and decrees belong to that class which leaves still to be determined the merits of the controversy. 1 An interlocutory judgment will not support an action. 2 Where statutes provide for interlocutory judgments, and for the terms on which such judgments shall be granted, the right is not subject to the discretion of the court. 3 The court has absolute control of all interlocutory orders and judgments in every case until the final judgment. 4 An interlocutory judgment by default is under the control of the court, and may be set aside for good cause and the party permitted to answer. 5 And it seems that an interlocutory judgment which adjudges certain rights to one of the parties may be vacated at a subsequent term. 6 640. Presumptions in aid oi judgments. As a general rule, the law will presume that a domestic court of general jurisdiction had power to make a judgment rendered by it, unless the contrary is shown by the record. Such presumption will not be indulged in favor of the judgment of a court of limited or special jurisdiction, but the facts necessary to the exercise of its jurisdiction must affirmatively appear on the record. All the courts of Texas are limited in their jurisdiction ; but courts created by express constitutional provision, with general and exclusive powers to hear and determine all controversies within their particular judi- cial sphere, cannot be said to be courts of limited or special juris- diction within the meaning of the general rule above given. 7 In the absence of proof to the contrary, there is always a presump- tion in favor of the validity of a judgment rendered by a court in :a case within its jurisdiction. The presumption is that the court has done no wrong; but presumptions are indulged only in the absence of proof, not against it. 8 When a domestic judgment is attacked collaterally, every presumption will be indulged in favor of the jurisdiction of the court and the validity of its judgment; and where it docs not otherwise appear it will be presumed that the court ascertained all the facts necessary to its jurisdiction. To iLinn v. Arambould, 56 T. 611. 2 Ledyard v. Brown, 39 T. 402. 8 Peck v. Moody, 33 T. 84. 4 Hamilton v. Pleasants, 31 T. 638. 'Ledyard v. Brown, 27 T. 393, and 39 T. 402. 6 Rogers v. Watrous, 8 T. 62; Cannon v. Hemphill, 7 T. 184. " Williams v. Ball, 52 T. 603. ^ 8 Sharpleigh v. Cooper, 1 App. C. C., g 56, 57. Where the parties and the sub- ject-matter are within the jurisdiction of a court, it will be presumed that the court has exercised jurisdiction over them rightfully. It will also be presum?d, when the jurisdiction is collaterally brought in question, that the prerequisites to confer it had been complied with. Acres v. Tate, 1 App. C. C., 122& 641.] attack the jurisdiction it must affirmatively appear that the facts essential to it did not in fact exist. 1 Where ;i person has not been served with process, and has no notice of the suit, and a judgment has been rendered against him when he has a good det'en-.-. he may bring a suit to annul the judg- ment, and may impeach the shei-itl's return without beini: m\ to show that the plaintiff connived at or procured the false return, or had any connection therewith. It is sufficient that ,rn is n>t true in fact, and that there is a good defense. This ruling is made in view of the fact that there is high authority aga. ?' 641. Validity of judgments; collateral attack. Judgments are void and voidable. A void judgment is an abso- lute nullity, and may be so treated by any court in anv suit or ju- dicial proceeding: 3 that is, it is subject to collateral attack, but to render it so the invalidity must appear affirmatively ujx>n the record. If it does not thus appear, the judgment is not void, but wtll be held valid and binding upon the party against whom it until its nullity is declared in a suit brought for that purpose. Such a judgment is said to be voidable.* In nume? > of the highest and mo>t distinguished courts it is held that the judg" of a court of general jurisdiction cannot be held to l>e void unless the record shows that the court was without power to render the ! rnent. This may be said to be the rule, but the courts of this recognize at least one exception to this rule, vi/., that a judg- ment ordering administration upon the estate of a living man is a nullity, although the proceedings are regular, and there is nothing upon the record showing or suggesting that the owner of the prop- erty upon which administration is granted is living.* If the court had jurisdiction of the subject-matter, it will be pre- sumed that jurisdiction was properly acquired over the person of the defendant, there being nothing in the record to the coiitr There seems to be no well-considered opinion where the court has Hardy v. Beaty. 84 T. 562 (19 a W. Rep. 7 Ca r. Gay. 8* T. -.71 .-.' & W. Rep. 599); Brockenbor...^ T. 493: Chambers r. Cannon, '.. i it. I. v. lioyer, 51 T. 33rt: H:it< h % !>> la (Una, 22 T. 178. Kempner v. Jordan. 7 Civ. App. 275. See the authorities cited The ques- tion was noticed in Randall v. Collins. 58 T. 2:11. >ut not !. Caplen v. Compt-.n. '. < 'iv. App. HO .27 s. W. K.-p. 888; Murchiaon v. Whit.-, :>4 T. 7^. Stewart v. Anderson, 70 T. 588 (8 & W. Rep, * Murchison v. Whit.-. 54 T. 78; Ouilford v. Love, 49 T. 715: Williams v. Ball, ;<>:{; W.-ik.-ii.-M v. \pp. C. C, 86'.' : v. Hr.-. 540; Odle v. Frost. 59 T. ft* I: H.-II.!- Caplen v. Comj \pp. II" .7 s. \v. Rep. 24). Fitch v. B<.y,-r. 51 T. :W: I-i l.-r r, Whit.-. 27 I .ilford v. Love, 49 T. 715: Hardy v. 'Beaty, 94 T. 562 (19 3. W. Rep. 778); Miktska T. Blum, 68 T. 44; Kramer v." Breedlove, 3 S. W. Rep. 561. 604 JUDGMENTS. [ 642. acquired jurisdiction of the subject-matter of the suit and of the person of the defendant in which it has been held that the judg- ment rendered was subject to collateral attack for errors of law ap- parent upon the face of the record. Such erroneous decision is just as final and binding as would be an erroneous decision on a question of fact. 1 When, in the exercise of lawful power, a court has ren- dered a final judgment, it must be held conclusive between the par- ties thereto, except in a proceeding appellate in character, unless some ground other than that it is probably unjust is shown, which, under the settled rules of law, is deemed sufficient to authorize a court of equity to re-examine the case. 2 Fraud perpetrated by a party in procuring a judgment does not render it absolutely void, but is only cause for having it declared void, in a proceeding instituted for that purpose and in proper time,, as between parties and privies; a different rule applies to strangers to the proceeding, who may collaterally attack a judgment procured by fraud, whenever it is relied on to affect their rights. 3 642. Orders of court. Litigants are charged with knowledge of the standing orders of the court. Thus, where an order is made during the first week of the term discharging the jury for the term, and the parties by con- sent set a case for trial during the second week, they cannot com- plain if the court proceeds with the case without a jury. 4 A de- fendant once brought properly into court by citation is chargeable with notice of all orders made by the court regarding the cause.* The rule also applies to an intervener. 6 It is within the power of the court to set aside an order improp- erly made at a former day of the same term ; and if the action of the court would be revised in any case, it would be done only in a case in which manifest injury or injustice had been done. 8 The rule is that the orders of a court are under its control until the end of the term at which they were made. 9 * Bordages v. Higgins, 1 Civ. App. 43 (19 S. W. Rep. 446: 20 S. W. Rep. 184, 726); Odle v. Frost, 59 T. 684. A void judgment is always subject to collateral at- tack, and it can derive no legal sanction from lapse of time. Paul v. Willis, 69- T. 261 (7 S. W. Rep. 357); Martin v. Cobb, 77 T. 544 (14 S. W. Rep. 162). 2 Ham v. Phelps, 65 T. 592; Johnson v. Templeton, 60 T. 238; Morris v. McKee,. 61 T. 413. 'Murchison v. White, 54 T. 78; Fleming v. Seeligson, 57 T. 524; Mikeska v., Blum, 63 T. 44. y the heir* of a deceased defendant, that if the plaintiff will not romi*-! administration on the estate, they, the heirs, will make themselves parties defendant at the n. \t term of the court, is equivalent to an agreement by an administrator that, if tctre facias be not served upon him, he will corn.- in voluntarily an.l make himself a party defendant Such agreement, with a stipulation that, in ill-fault said heirs so making themselves parties, they will pay the pl.iintitT tin- full amount claimed in the suit, with all costs, is an absolute agreement to become parties; and where the cause of action was an open account, was held to amount to a liquidation of the demand, tlu-n-liy autlioi i/.ing judgment final by default Against said h. irs, without a writ of inquiry to ascertain the amount Barton v. Nix, 20 T. 39. 'Burton v. Lawrence, 4 T. 878; Liu!- r, CrittM 1- 1>. 10 T. 182; Towturn Moore, 13 T. 30: Htiti-hinaon v. Owen, 20 T. 287; Oo v. Pilgrim. 28 T. 968. R a 1351; Mrrritt v. Clow, 2 T. >,'; iHmman v. liartwell. 9 T. 4W; Town- send v. Moore, l irton v. Lawrence, 4 T.878; Cartwrigli! Garner v. Burleson, 26 T. 348; Merrill v. Clow, 2 T. 582; Dunmun T. ilart- well, 9 T. 495; Towusend v. Moore, 18 T. 36. 608 CONFESSION OF JUDGMENT. [ 647. ment cures all errors committed in defectively stating a cause of action, or in the rulings made by the court before it was entered, still the pleadings must disclose some basis for the judgment. Hence when, in a suit to recover $298.75, judgment was rendered by con- fession for $792.54, there being no pleading to authorize such a judgment, it was reversed. 1 The judgment is not a waiver of errors unless made conformably to law. 2 Frazer v. Woodward, 61 T. 449. 2 Montgomery v. Barnett, 8 T. 143. CHAPTER XLI. STATEMENT OF FACTS 648. When and how prepared. What included in statement of is. 650. When the parties disagree. 651. Made up and filed in vacation, when. 652. Statement not filed in time may be considered. 65a Procedure in court of civil ap- peals where statement of fact* is found insufficient. 654 Presumptions and rulings in ab sence of statement of facts. ? 048. When and how prepared. After the trial of any cause, either party may make out a written merit of the facts given in evidence on the trial, and submit it t> the opposite party, or his attorney, for inspection. If the par- or their attorneys agree upon such statement, they must sign, it and submit it to the jiul.i:e, who must, if he find it correct, ap- pro\ _:n it, and it must then be filed with the clerk. Where .iirivr.l by the parties to the suit, or their attorneys of record, that tin- evidence adduced upon the trial of the cause is sufficient to establish a fact or facts alleged by either party, the testimony of the witnesses and the deeds, wills, records or other written in- struments, admitted as evidence relating thereto, must not be stated i in detail into a statement of facts, but the facts thus es- tablished must be stated as facts proved in the case. An ii ment, such as a note or other contract, mortgage or deed of t that constitutes the cause of action on which the petition, or an- . or cross-bill, or intervention is founded, may be copied once in the statement of facts. When there is any reasonable doubt of the sufficiency of the evidence to constitute proof of any one under the preceding rule, there may then be inserted such of the :he witnesses and written instruments, or parts thereof, as ! ts. 1 i A.-ts 1 .-.. ,,. 42: R. S. i:t7'.: Kul.-s 11 an-1 7:1 Th- lir-r tw,. M-nt-nr,-* . | above statute, t the old st;. r to the amend- iiii-iit ..f 1*92. All afti-r tl..- w f.. r tin- 'li-trirt an-l county .-..un-. Lftfl |h* WoH '!. oU -tntute COO- a it read. -shall be filed wit during the ti-nn. " ] re-quiring the of facto to be filel thirii. -fro. \Vh . ug A statement, it must clearly a|.|..-:ir troin tlf trim- n|.t tn.a n was filed during UM term. McDonald x. Bbbb, a \V. H-|.. r. H 010 STATEMENT OF FACTS. [ 049, A statement signed only by the attorneys, not having the ap- proval of the judge, will not be noticed. 1 The failure or refusal of the trial judge to sign a statement of facts will not be considered on appeal unless complaint against the action or omission be brought up in the assignment of errors. The proper practice would be for the aggrieved party to apply for a writ of mandamus? An ap- proval by the judge without the signature of counsel is not suffi- cient, unless a disageement is clearly expressed or necessarily im- plied ; and a disagreement will not be implied where it appears that the paper was filed before the motion for a new trial was made. 3 An agreement between opposing counsel incorporated in the transcript, to the effect that the evidence found in the statement of facts contained in the transcript of another cause on appeal may be used in the appellate court, contemplates a mode of procedure not recognized by law and will be disregarded. 4 649. What may be included in a statement of facts. The district and county court rules provide as follows: " When it becomes necessary to insert in a statement of facts any instrument in writing, the same shall be copied into the statement of facts before it is signed by the judge, and instruments therein IG., C. & S. F. Ry. Co. v. Cannon, 29 S. W. Rep. 689; G., C. & S. F. Ry. Co. v, Calvert, 31 S. W. Rep. 679; W. U. Tel. Co. v. Walker, 26 S. W. Rep. 858- City of Victoria v. Jessel, 7 Civ. App. 520 (27 S.W. Rep. 159); Caswell v. Greer, 4 Civ, App. 6o9 (23 S. W. Rep. 331); Tex. & Pac. Ry. Co. v. Cole, 1 S. W. Rep. 631, 632; Renn v. Sarnos, 42 T. 104. 2 Reagan v. Copeland, 78 T. 551 (14 S. W. Rep. 1031). A statement of facts, cer- tified to by the judge before whom the case was tried as an agreed statement, which is only signed by counsel for one party, may be considered on appeal, the presumption being that it was properly certified. The statement of the judge, made out and filed after the adjournment of the term and improperly copied into the transcript, in reference to whether or not a statement of facts was prop- erly certified or approved by him, will not be considered on appeal, in the ab- sence of a motion to strike out and suppress the statement on account of deceit practiced by one of the parties, or his counsel. Schneider v. Stephens, 60 T. 419. a Barnhart v. Clark, 59 T. 552. 4 Johnson v. Railway Co., 69 T. 641 (7 S. W. Rep. 379). A change in a state- ment of facts after it has been signed by the trial judge, made without author- ity, if made by one seeking a revision of the judgment, would be visited by the penalty of at least having the paper stricken from the record. Newman v. Dod- son. 61 T. 91. The appellate court cannot impeach the truth of a statement of facts agreed on by counsel and signed by the trial judge. If any portion of it fails to agree with a bill of exceptions which refers thereto, there is no means whereby the court can determine which is correct, or whether error was committed in the matter to which the exception refers. Wiseman v. Baylor, 69 T. 63 (6 S. W. Rep. 74u). Where counsel do not agree upon a statement of facts and the statement is prepared by the judge, and it is inconsistent with a bill of exceptions touch- ing matters excepted to, the bill of exceptions on appeal will be looked to; other- wise the court might deprive a party of a bill of exceptions properly taken and signed. McClelland v. Fallen, 74 T. 236 (12 S. W. Rep. 60). 8TAI F PACTS. >'d\ it., aii.l 1 to be copied shall not part .if tin- ivo.nl. 1 "\VI,ei ,|>ute about, or <|U.->ti..ii made ii|H.n. validity or -., m -, .tin- inn ! a d.-.-d. ,,r its re, .11 T Miirt. up any \\ritten instrument add i t should be described ami not evidence stated a-, a faol established. - - When jiie>tions a; ..n such instruments as are m- in tli- iiiir rules, only S o much or BOofa parts of them -hall IM 1 into tin- statement of farts as may be necessarv to present the question, and the balance of them shall <>nlv be describ. 1 1. as prescribed in the preceding rule. 1 * The commissions, notiivs and intern'L'atories in d- . ad in -\ idfiio-. ^i\-.\\\ in no case !> inent of facts, but the evidence thus taken and admitted shall a| in the statement <>f facts, in the >ame manner a> th.n:h the witness had been n Hie >tand in ^ivitii: his evidence, ami nt form or >r!> stance. 4 " Neither tlie notes of a stenographer taken iij>on the trial, nor a o.j.y thert-i.f made at length, shall be. tile.. .ttement of : but the statement made therefrom shall be condensed throughout in accordance with the spirit of the fore^oini: rules upon r 1 Rule 74. In making up thf transcript, clerks are f>rl-if writing whi'-h i< un-i' ly i. t- rred to anl . ll.iti- i-ourt will not take notice of .l. um Taul v. Wri^lit The court nm>t act upon t! in tlif record, ami the law proviih-s no im-ans for its ;un.-!i.ln properly ilf<'liii.-c| t in ! in*, rt.-.l. T :; i; >. v. aureeni'-ir 1 not having Ix'en incor|Hirat-il into a tat I.T.-.I on app. al. M.-I >..\v,-:: v. Al.-orn. Ts 'I Rule 76. 4 Rul- 77. The rules wn tor the conv.-nii-nr.- of tli- < > tx- tin- ili-|Mitioti of ap[H'a!>.. \Vh.-n tli>y aii- . l.-r.-ardel, n -tioD toan ses on the trial are incorporated at ItMgl 'tat*- nu-nt -lit- i-oMs of tin- stat'-nit-nt an . ")iouM not ! in. in thf n-c.rl. hut th- f.i th.-n-hy. in-t. a.l. Th.- nil.- prohihitinn it lessens expeiue ai. n of causes. Wlu-n this ruh- is f the parties. 1 5; 651. Made up and filed in vacation, when. The court may, ly an order entered upon the record diiriii- t'-rm, authorize the statement of facts to be made up, ar and tiled. in vacation, at any time not ex. -,'n days after the adjournment of the term. 2 This statute must be strictly The rot-on 1 must show an order of court, entered of record will not dispense with the order, nor with a tiling within tli days. 7 The appellate court will, of its motion, take notice wh. the record shows a proper order of court." It is said chat th oral rule which the statute under consideration was de>it;i!. on force was the preparation and tiling of the statement o: term time. 9 After the adjournment of a term of court, the judge has no power to reopen his court and allow a motion for leave to prepare a ri mont of facts within ten days after the adjournment of court to be tiled, and <_Tant an order in accordance with tho motion. 10 ? 652. Statement not filed in time may be considered. Tho statute provides that whenever a statement d -iiall boon tiled after the times respectively prescribed in ar M.I i:M of the KoviM-d Statutes, and the p.: derinir or filin.i: the same shall show In the satisfaction of the courts of civil appeals that he has used due diligence to obtain the i With-, v May. 8T. 160. . ; r, K supra. M. & T. 187; MrCuir- 'V. vitt v. IHim.h-i:. :.T.& P. l: Armstrong r, Fiean, 59 T v. Cook, OT. 488: Lock \ . Ca. 68 T . 78 T. -'.I ; '.; 9 W, l:- iiroumard ^ \v. l;. p. - Miiiih. i s. \v. i;. .,,. w. Whit- v. H..I1.-X. -"> ft w. Hep. 8; 1 A t; ,, ' -.liiiK'. -."> s. W. HeiK 1114; RottMMn T. Orosd.. 81 a W. K,-p. :wi. v. Ca v. Scott, 58 T. 1-7 . M- Quire v. Newbill, ^ ^nler v. Berryir. 104. s I. A f. Co. v. Scott, 58 T. 187. Bin... v. NYiison. 59 T. 878. .via v. Mlun.l. x.-tonT. Dciet, U - ^ p - ' M,,t! Mini. .".1 ^> W. Rep. 814; Raleigh T. Cook, T. 48& ' M--Miir.- v. N,-wl,ill. .> 'I' i I. & <;. N. Ky. Co. v. Smitl.. '..' T. 185. STATEMENT OF FACTS. FS G53. L0 --approval and signature of the judge thereto, and to file the same -within the time in this chapter prescribed for filing the same, and that his failure to file the same within said time is not due to r appellant to furnish f..iir printed copies of such statement of facts, and upon his failure to do so may diM-egard it. If the violation of the rule be tlairrant, the court may disregard the statement of : altogether, unl.-ss compel for the appellant or plaintiff in error shall make it appear by affidavit or otherwise that he prepared a State- ment -riving what, in his opinion, he denned a fair presentation of the e . prepared in accordance with the rules, and that he unable to ret it agreed to or approved. But should counsel for appellant or plaintiff in error show that he has used due diligence to have a proper statement of facts signed and approved, and that the statement of tacts as prepared is the result of the fault of the counsel for the opposite party, such as his failure or refusal to agree to a proper statement presented to him, the costs of printing the ment, if ordered, shall be taxed against the appellee or defend- ant in error, as the case may be. 1 654. Presumptions and rulings in absence of a statement of fact*. In the absence of a statement of facts every legal intendment is in favor of the correctness of the judgment, and it will be pre- sumed that the evidence was sufficient to authorize the finding; 1 and that every fact necessary to support the judgment and author- ized by the pleadings was established.' It will l>e presumed that such evidence was introduced as would support the judgment. 4 But when the verdict is repugnant to the admissions in the plead- ings, a statement of facts is not necessary to show that the verdict rong. Nothing can be presumed to have been proved which could not legally have been proved under the pleadings.* To re- verse a judgment in the absence of a statement of facts the appel- late court should ordinarily be able to see not only that the court below had erred, but that such error must with reasonable cer- tainty have produced a substantial injury to the party in the cause.' Alleged error in the conclusions of fact will not be noticed when there is no statement of facts ; : if the conclusions of the judge were not excepted to, the court will only consider whether the pleadings 1 Rule 53 for courts ,.f <-i\ il appeals. - \\ '.,!! . r. I'--" -1. 62 T. 886; Cochran v. K.-lluin, 4 T. 120; Bot. T. 635: Jinn, s v. Kulcrod, 5 T. : v. Townst-nd, 2 T. Ml ; Funck 23 S. vv. !: -p. 117. I).- v. siiaim"ii. ',-. T. !'.-: .\l.-.\nn.l.-r v. Mullmll. 1 C.C.7W; HeMenheiuwr v. Kll 'Hi-"" . Aiitry. 4 T. :7l: HendewOO V. Tr.'.uM. . s T. 171: Walling v. Kinnar.l. 1" T. 506; <.-ntry v. Schneider, 77 T. 3 \V. IJ. ].. ;U-,: A.lkin- v. Ha. CotulIa v. t;...m. 77 T. ::-.' .13 S. \V. i Luckett v. Tiiwiix-n,!. :: T. ll'.; ( l.:i|.i.i;.ii \. Si). ,-.!. 17 T. 428. Muii.-l.rak.-r v. I .,. Hm-.l.-tt >. 80 & W. Rep. ir>47; Ma.l i Idea. 79 T & P*c. Ry. Co. T. & Vf. i:- p .;:. 'W-.': Wright v. r.it... i - 081. 616 STATEMENT OF FACTS. [ 654, support the judgment. 1 "When there is no statement of facts in the record, but there are found therein the conclusions of fact and law found by the district judge trying the cause, which conclusions- of fact are accepted by appellant as correct, the court will disre- gard the absence of a formal statement of facts and revise any errors committed by the court below in applying the law to the conclusions of fact so found. 2 The rule is that exceptions to the admission or exclusion of testi- mony will not be considered in the absence of a statement of facts ; 3 and that the ruling of the court in the giving of instructions will not be revised. 4 The exception is where the error in the charge is so glaringly apparent, when taken in connection with the plead- ings and the verdict, as to leave no doubt but that the finding of the jury was controlled by the improper instruction. An excep- tion also is where the charge is upon an issue not made in the pleadings and the verdict is evident^ upon such issue. 5 An assignment that the verdict is contrary to the law and the evidence, or that the damages are excessive, will not be considered in the absence of a statement of facts. 6 Errors of law usually noticed by the court where there is no statement are those which arise on the sufficiency of the pleadings. 7 1 Smithwick v. Kelley, 21 S. W. Rep. 690. 2 Chance v. Branch, 58 T. 490; Cousins v. Grey, 60 T. 346. Where the judgment shows that the trial court heard the issue presented by a plea in abatement, and found against appellant on "the law and the facts," the appellate court cannot say, without a statement of facts, whether the ruling was erroneous or not, Voigt v. Hubertus, 29 S. W. Rep. 44. s Rains v. Herring, 68 T. 468 (5 S. W. Rep. 369); Torrey v. Cameron, 74 T. 187 (11 S. W. Rep. 1088); Bergstrom v. Bruns, 24 S. W. Rep. 1098; Rosenfield Const, Co. v. Cooney, 26 S. W. Rep. 1004. Where excluded evidence appears material and relevant to the issues under any probable state of the testimony, and the ground of objection is not tenable, a bill of exceptions showing such ruling ought to be considered and ^he ruling revised, although no statement of facts appears in the record. Torrey v. Cameron, 74 T. 187 (11 S. W. Rep. 1088). In the absence of a statement of facts, when there is nothing to show that excluded testimony was relevant to the pleadings as they appear in the transcript, and material to the case of the party complaining as made, the judgment cannot be- reversed. Harris v. Spence, 70 T. 616 (8 S. W. Rep. 313); Goodale v. Douglas, & Civ. App. 695 (24 S. W. Rep. 966). * McCormick H. M. Co. v. Gilkey, 23 S. W. Rep. 325; L & G. N. Ry. Co. v. Wolf r 3 Civ. App. 383 (22 S. W. Rep. 187); McDaniel v. Martin, 25 S. W. Rep. 1041; Raleigh v. Cook, 60 T. 438; San A. & A. P. Ry. Co. v. Moore, 75 T. 643 (13 S. W, Rep. 295); A., T. & S. F. Ry. Co. v. Locklin, 29 S. W. Rep. 690; Washington v. Eckart, 15 S. W. Rep. 1047; Burgen v. City Nat. Bank, 18 S. W. Rep. 575; Henrie v. State, 41 T. 574; Frost v. Frost, 45 T. 325; Ross v. McGowen, 58 T. 603. Tex. & Pac. Ry. Co. v. McAllister, 59 T. 349; Hill v. Railway Co., 80 T. 431 (15 8. W. Rep. 1099); Davis v. Calhoun, 41 T. 554; Bast v. Alford, 22 T. 399. 6 Raleigh v. Cook, 60 T. 438. An assignment which complains of improper re- marks of counsel in the argument to the jury will not be considered in the ab- sence of a statement of facts. A., T. & S. F. Ry. Co. v. Locklin, 29 S. W. Rep. 090; San A. & A. P. Ry. Co. v. Moore, 75 T. 643 (13 S. W. Rep. 295). 1 Frost v. Frost, 45 T. 325. CIIAI'TKR XI.II. MISCELLANKOUS QUESTIONS OF PRACTICE. 655. Remarks by the judge in the presence of the jury. 656. Stenographer. 657. Leading counsel; attorney of record. 658. Attorney or officer not to act as surety. 659. Deposit in court 660. Personal examination of inured 661. Suits on contracts with or for a county. 662. City not required to give bond or security. $ 656. Remarks by the judge in the presence of the jury. It is admitted to be practically impossible for the trial make its rulings on questions arising during the trial without ing something in explanation. 1 Remarks upon the testimony i. by the trial judge during the examination of a witness should be excepted to at the time, so as to give opportunity to the court to correct or remedy the injury done. Any wronjr impression i upon the jury may, it seems, be corrected by a charge to the effect that the jury are the judges of the weight to be attached to the testimony, and that it is not the province of the court to express any opinion upon the question. - Where the jury could not properly have returned any other diet, remarks of the trial judire are imm.r idence should be admitted jury, if proper, wit: comment from the jmlire calculated t< :ts weight. 1 iSmith v. Tra-l.-r-- - \V. l>p. : T |t.-nnit n-|>oii,l>nt t<-a-k whether or nut hf was w.-ll inform. ! in tin- laws <>f thi -tat- ^ re- marked in presfticv of the jury: "This i|iii^t>n has u- the higher courts, ntxl this is ns good a time as any f> ; The remark was h-M rmKrimn-l f-i it -li.l n.t .f its.-lf ini|> niiluence th* ver.lict .-t a jury. I. A: U. N. !. -nuth. 1 "> *48i ptv>i, :md cannot i -.ned f,,r tin- !ir>t time on appeal. 1 658. Attorney or officer not to act as surety. It is pro\ ided by rule that no attorney or other officer of the court shall he surety in any cau>e pending in the court, except u .il leave of court.-' It is held that this rule is merely direr' and that a hoiid signed by an attorney or other officer, without of court, is neither void nor voidahle. The rule was inte to protect the officers of the court against the importunity of liti- gants, and it is held that the purpose of the regulation is sufficiently nplished hy punishing the offender for contempt of court with- out holding the hmid a nullity. 1 ?; 65G. Deposit in court. Whenever during the progress of any cause any money, debt, scrip, instrument of writing or other article is paid or dej court to abide the result of any legal proceedings, the officer having custody thereof is required to seal up the identical money, or other article, in a secure package and deposit it in some safe or bank vault, keeping it always accessible and subject to the control of the court. He must also keep in his office, and as part of the records thereof, in a well-bound book, a correct statement showing each and item of money and property so received by him, on what account received, and what disposition has been made of it. On the expira- tion of his term of office, he must turn over to his successor all trust funds and other property, and the record aforesaid, and take his receipt therefor. These provisions do not exempt any officer or his sureties from liability on his official bond, for any neglect or other default, in regard to the funds mentioned. 4 660. Personal examination ot injured party. The riirht to require an injured party plaintiff to submit to an examination by experts appointed by the court, so as to enable such experts to testify as to the extent and character of his injuries, has never been positively decided by the courts of this state, and the power has been expressly denied by some of the judges.* It is said 1 Fowl, r \. Morrill, 8 T. 15& But it appears from this case that there is no presumption that one who is not aa attorney at law had auth< r: service .if process for a party. > Rule 50. Kohn v. Washer, 09 T. 6? (6 & W. Re|>. Ml>. R s. i M;-J no i. A judgment afatnt a party whiohl "unt paid liy him into rurt,w..i k- ni prrjii'li< . .m.-,- tin* amount may be appl the p;irtv in reduction of tin- judgment. S^ >-> Hldtf. & L. A'n. ae a \v. In (;!> of litigation ufMn a moiu-y -I. -mand. tin- pn-jx-r mod' "g tend'-r i- ''\ p;iyinc into court t lie amount due. < Horn \ ' T. 281. HutHi-r. -.1 T. :K" (U s. \V. : 620 MISCELLANEOUS QUESTIONS OF PRACTICE. [ GC1, 0(52, that if the power exists at all, it should never be exercised except in cases in which the ends of justice demand it. 1 If the power may be exercised in any case, it should be by the appointment by the court of one or more disinterested experts, either of its own selec- tion or such as may be agreed upon by the parties, but plaintiff should not be required to submit to an examination by a person for whom he has an aversion. 2 661. Suits on contracts with or for a county. All notes, bonds, bills, contracts, covenants, agreements or writ- ings, whereby any person is bound to any county, or to the court or commissioners of any county, or to any other person or person?,, in whatever form, for the payment of any debt or duty or the per- formance of any matter or thing to the use of any county, are valid and effectual, to ail intents and purposes, to vest in such county all rights, interests and actions which would be vested in any individ- ual if any such contract had been made directly to him; suits may be commenced and prosecuted on such notes, bonds, etc., in the name of such county, or in the name of the person to whom they were made, for the use of the county, as fully and effectually as any person may or can sue on like notes, bills, contracts, covenants^ agreements or writings made to him. 3 662. City not required to give bond or security. When a city which has accepted the provisions of title 18 of the Revised Statutes (relating to cities and towns) is a party to any suit or proceeding, it is not required that any bond, undertaking or security be executed in behalf of such city, but all such ac- tions, suits and proceedings will be conducted in the same manner as if such bond, undertaking or security had been given ; and for all the purposes of such actions the city will be held liable in the same manner, and to the same extent, as if the bond, undertaking or. se- curity in ordinary cases had been duly give and executed. 4 1 1. & G. N. Ry. Co. v. Underwood, 64 T. 463; Mo. Pac. Ry. Co. v. Johnson, 72 T. 95 (10 S. W. Rep. 325); G., C. & S. F. Ry. Co. v. Norfleet, 78 T. 321 (14 S. W. Rep. 703). -' Mo. Pac. Ry. Co. v. Johnson, 72 T. 95 (10 S. W. Rep. 325). In G., C. & S. F. Ry. Co. v. Nelson, 5 Civ. App. 387 (24 S. W. Rep. 588), it is held that it would not be error to refuse to require an injured patient to submit to a physical examina- tion respecting the extent, character and permanency of his injuries, by a phy- sician named by the defendant railway company; it is left undecided whether the court should in any case require a plaintiff to submit to such examination. a R. S. 795, 796. * R. S. 570. CHAI'TKU XI. III. NK\V TRIAL AND AKRF.sT OF JfDGMHNT. 675. Various grounds of motion for new trial. 676. Newly-discovered evidence. C77. Surprise may be ground for new trial. 678. Absent t. -timony. 679. Absence of a party or his coun- sel 680. Error in the charge of the court. 681. Testimony illegally admitted or excli 682. Verdict not supported by evi- dence. 68a Verdict contrary to the evi- dence. 684 \ ntrary to law. 685. Excessive or inadequate dam* 663. Granted on motion; grounds to be specified. 664. New trial will be granted, when. 665. Judgment may be arr when. 666. Time of making motion. 667. To be determined during the term. 668. Not more than two new trials, except, etc, 6V. :y of motion for new trial. 670. Reference to alleged errors. 671. Where the trial is l.y the court. uent of pleadings. 673. Effect of order granting new trial. itfidavits. .-' 663. Granted on motion; grounds to be specified. A- trials may be granted, and judgments may be set aside or arrested on motion for good cause, on such terms and conditions as the court shall direct. 1 Every such motion must ! in writing and *R !- 'r.l. r :* n nullity. The a* and cotnlitii<*. ;\- u->-d in th. nn v. Railway < s. \V. I;. ', T. 19; Gorman v. i la nd. i:$ T. -,':::. The following or,|,- r is held Mirli.-ient: "Thecouitbof pinion that a new trial should U- decreed I roiirt tli.-it ! -f. ii'hi: tor a new trial be and the same is hereby grunted and judgment vacated. It is fmth.-r . . . d,-cr>-ed th.it defendant |y all costs ndanceat this t> rm whotestii <-aue. as a con- dition TI|M.H which ;i, isawardel." F.-nn v. Railway Co.. 0(18S.W. l: ^>rlen,a W. Rep. llOa An ord-r that th- appli n-.n of this term of court, pay all costs of court that have arcrued during tlif i -date; otherwis.. s ;1 id jud^m- -nt t-- r, m.un in full force and effect," is a nullity. Bar- grave v. Boero, 23 S. \\'. On the hearing of u motion fora new trial, the judge announced that the new 022 NEW TRIAL AND AKKEST OF JUDGMENT, [ signed by the party or his attorney, and must specify the grounds upon which it is founded ; and no grounds other than those speci- fied will be heard or considered. 1 A motion in arrest of judgment cuts off a motion for a ne\v trial, and thereafter a motion for a new trial is too late. 2 But a motion " to arrest and set aside the judgment" will be treated as a motion fora new trial, where it assigns such grounds only as are proper in a motion for a new trial, and are not proper in arrest of judgment, 3 664. New trial will be granted, when. Whenever, during the progress of a cause, irregularities or errors have occurred, 4 in consequence of which the justice of the case has not been attained by the verdict of the jury, 5 a new trial will be trial would be granted or the judgment reformed, and the opposing party as- sented to the new trial. This was not error. Barton v. American Nat. Bank, 8 Civ. App. 223 (29 S. W. Rep. 210). 1 R. S. 1371. Where a motion was filed within the time provided by law, it was error to refuse to consider an amended motion setting up additional grounds and filed nine days after the trial. Bell v. Wallnitzch, 39 T. 132, citing Sweeney v. Jarvis, 6 T. 36. And see Dowell v. Winters, 20 T. 793. Where a motion for a new trial was made on the ground that the verdict was contrary to the law and the evidence, and was overruled, it was held that the judgment should not be reversed, although the damages were excessive, as that ground had not been specified in the motion. Hillebrant v. Brewer. 6 T. 45; King v. Gray, 17 T. 72; Ellis v. McKinley, 33 T. 675. But where the verd:ct is nf such a character that no legal judgment can be entered upon it, as where the jury return a void verdict, or a verdict finding not the issue, but a matter totally foreign to the issue, a new trial may be granted, although such ground was not specified in the motion. Sweeney v. Jarvis, 6 T. 36. Whether an ap- plicant for a new trial has a good defense is to be determined by the court, and the motion must set 'out clearly in what the defense consists. Yarborough v. Downes, 1 App. C. C., 676. 2 Hipp v. Ingram, 3 T. 17. 3 Salinas v. Wright, 11 T. 572. 4 Where to an action on a note the defendant pleaded the general issue, and judgment was rendered by default as if no plea had been filed, it was held that the defendant should have moved for a new trial, or to set aside the judgment, and having failed to do so, he could not make the objection in the supreme court. Robinson v. Mattison, 25 T. Sup. 451. In McKaughan v. Harrison, 25 T. Sup. 461, the defendant pleaded in an action on a promissory note a special plea impeaching the consideration, and also a general denial. The cause was sub- mitted to the court, and an exception to the "answer" having been sustained, the judgment was reversed because the court had disregarded the plea of gen- eral denial. Where a party stands by, in the court below, and without making any objec- tion suffers the court to err as to a matter of fact, as, for instance, to render a judgment by default, under a misapprehension that no answer had been filed, and fails afterward to move the court to correct the mistake, he cannot take advantage of such error on appeal. Hopkins v. Donaho, 4 T. 336; Pierson v. Burney, 15 T. 272; Allen v. Traylor, 31 T. 124. 5 Where a jury has been waived, and the case submitted to the court, a motion for new trial is not necessary to entitle the plaintiff in error to a revision of the judgment. Bell County v. Alexander, 22 T. 350. 664.] M \\ n:i\i \ ; -To granted. 1 While application-. ft trial, the judgment of the court may be revised and the Hist v.-rdict and judgment reins: upon a clear showing that the new trial was granted in violation of law. Kven if a new trial has been erroneously granted, the error is not the subject of revision on appeal, except, perhaps, in a strong "NVhere a party in his application fora new trial brings himself within the established rules of law and the principles of adju< cases, he is entitled to a new trial as a mat; ..lit. 1 Ti quiry upon appeal is, not whether upon the evidence upon the rec- ord it might apparently have been proper to grant the application in the particular case, but whether the refusal of it has involved the violation of a clear h-iral riirht or a manifest abuse of judicial dis- cretion. 4 The supreme court admonishes the trial courts to relax the rigor of their practice in respect of new trials.' 1 The rules of the appellate courts are founded on the assumption that the jud^. fore whom a case was tried has acted in the e\ei, 'iion- lib- eral discretion than the appellate court can indulge, lie <,bv, the manner of the witnesses in testifying, to aid him in judging of their credibility. The trial court should grant a new trial I satisiied that injustice has been done; otherwise in many cases, where from an inspection ..f the record by the appellate court ' appears evidence to sustain the verdict, and n<> can be had. injustice may be done by local prejudice and other causes which the district court should have prevented. 4 1 Wht-n *-Y,-r:il persons are sui-'l for tr -| ;t-v an-l the plaintiff obtains a i gainst OIH-, iiinl the nthi-r-. uhtain :i \.-r.ln-t :i^;iuixt pljiti.; may In- ^rant'-l a- t<. nut-, and nut as to tin- i.th.-i J ffvb, f. T. M: Hughes v. Ma ' i. -in. 1 A i ". Hilt)urn v. II ,rn-. fix. \, 31. Applicati..i.s I,:,-.-,! IIM th,- k 'r..un,| that th.- party wa misled by - ; of the it||Hisit.- |.;irty as t.i tin- tun.- of tl M.UIP! d : tl..- (MUM. i:..iis r, QmUowaj, : Lpp J Ap; M9. The action of th.- , ..urt in r.-fiisin u n.-xv trial is reriiied on appeal, not th,- r,-as..ns u[H.n \\hi<-h th,- a-tion was baaed. Ualvecton v. Uem- mia, ?', T. SMdl s. \V. H,-p. W). Abies v. Donley, 8 T. :: Vun Hart. -n v < oun -.t-.n v. Forrester, 35 T. 584. O.. H.&S, A. Uy. 1.71. t>*2-i ::E\V TRIAL AND ARREST OF JUDGMENT. [ 665. 6^5. Judgment may be arrested, when. Judgment may be arrested, upon motion, for any matter intrinsic upon the face of the record, amounting to a defect which could be reached by general demurrer, and for which a writ of error would lie. 1 It is not, however, every defect which would have been a fatal objection on demurrer that can be reached by a motion in arrest of judgment; if the issue joined be such as necessarily re- quired, on the trial, proof of the facts so defectively or imperfectly stated, such defect, imperfection or omission is cured by the ver- dict. 2 But if the plaintiff, in his petition, either state a defective 12 Arch. Pr. 280; Denison v. League, 16 T. 399. The statement of a fact, as that the defendant is a feme covert, in a motion in arrest of judgment, which .ought to have been pleaded, comes too late, and cannot be noticed. Phelps v. Brackett, 24 T. 236. An objection that there was no citation, as required by Jaw, served upon the defendant, or that a judgment by default could not be correctly or legally rendered in the case without a writ of inquiry, with other matters which might have been a valid defense, are held not sufficient to arrest the judgment. Heath v. Fraley, 50 T. 209. The purpose of a motion in arrest is to present to a court after trial such mat- ters as before trial might have been presented by demurrer. It calls in ques- tion the sufficiency of the averments of the pleading to entitle a party to the relief which he seeks, and, if the petition would be good on demurrer, the mo- .tion is properly overruled. Machon v. Handle, 66 T. 282 (17 S. W. Rep. 477); Hurley v. Birdsell, 1 App. C. C., 1184; Johnson v. Bowling, 1 App. C. C., 1098. Where no action is shown to have been taken before trial on the general de- murrer, it may be availed of on motion in arrest of judgment. McCall v. Sulli- van, 1 App. C." C., 1 ; Bradshaw v. Davis, 12 T. 345. A motion based upon the ground that the evidence shows that the amount of an account with which a party is properly chargeable is not within the ju- risdiction of the court is properly overruled; the defect is not apparent on the record. Sanger v. Ker, 1 App. C. C., 1083. If a petition be sufficient to authorize the relief granted, mere inconsistencies will not support a motion in arrest. An objection for non-joinder of parties comes too late on motion in arrest of judgment (Perez v. Everett, 73 T. 431); as that the husband was not joined with the wife in a judgment against her. Hab v. Johnston, 1 App. C. C., S 628. *De Witt v. Miller, 9 T. 239; Johnson v. Bowling, 1 App. C. C., 1093; Hurley v. Birdsell. 1 App. C. C., 1184; Tex. & Pac. Ry. Co. v. McCoy, 3 Civ. App. 276 (22 S. W. Rep. 926). In an action by the state, based upon bond given by one McF., and the defendant as his surety, conditioned for the appearance of McF. at the next term of the district court, on a charge of burglary, there was no allegation in the petition that McF. had ever been indicted, and the breach of the bond was charged in general terms, that the conditions of the bond were not complied with by McF., nor has he ever made his appearance up to the pres- ent time. The defendant answered by a general demurrer, which was not acted on by the court, and by a general denial and the statute of limitations. There was a verdict and judgment for the state. The error assigned was that the pe- tition disclosed no cause of action, there being no allegation that McF., the principal in the bond, had been indicted; but it was held that the fact that he had been indicted was involved in the issue submitted to the jury, and must have been found by them, before they could give their verdict for the state. McClellan v. State, 22 T. 405. An answer in a suit on a note, setting up a fail- ure of consideration, was objectionable, inasmuch as it did not directly deny *>.] .M> ARKEST OF JL'IX.N! title or totally omit to state any title or cause of action whatever, a \vrdi. -i will not cure the defect. 1 If an ambiguous expression is used in the petition, it is cured by \- -id must be taken to been used in that sense which would sustain the verdict. 1 And ,es and i If fee ts in the petition are sometimes cured by the 53 of the opposite party. 1 notion in arrest of judgment ing the sufficiency of the petition will be determined by the sutli .f the allegations made in it, and evidence avoiding such allegations cannot be con- ? 666. Time of making motion. All motions for ne\v trials, in arrest of judgment, or to set aside a nent, must be made within two da the rendition of lot, it the term ol the court shall continue so long; if not, then before the end of the term. 5 It has been held that this provision of - mandatory, and must be obeyed by the court as well as by partii-s; that a final judgment, after the expiration of the time limited, cannot be disturbed except by an apj>eal or an original pro- ferdinn- in .-.juity. 6 If the motion is not tiled within the specified time, the opposite party is not required to take notice of it, because S not required or supposed to remain in court. 7 It is also held that it is a matter within the discretion of the court whether it will tain a motion which is not entered within the time required by ;iintilT's a{)|x.iiitiiicnt as administrator, and in failing to state the farts <. instituting the fraud charged on the phuntitr, an run-d t.y v.-i.ii<-t it'art.T v. Wallace, 2 T. S08X although >f the value would not have been admi--il>l>- if it had U--n objected to. Gillies v. Wofford, 28 T. 76. A plradin. '-y the v, -rdirt wl. -in -h that it is t<. ,.-.1 that tli- jud^'* would not hare ,.,1 th- Jin tin- jury would ix. t have gi Ten it. tt-lall.. But a w .H not cure the mtive allegation. Schuster v. Frendenthal W. Reft ' ISta Ni.-h.ils. '*> T. 14.1; Hurh-y v. Uir-ls -11. 1 Anp. C C, 1 Gould's PI. - Au 171. Ml :'.S. W. R<-p. 1 K. , 1 v. Ho,L v. UcClaren, 11 T. 107 ; Wells T. Mel* vill.-. i Bell v. \Valii.it/.-h, :{'.' II v. Kodgcrs, 87 T. 688; Marcus r. Hetnphill, \ Api 62G NEW TRIAL AND AKRKST OF JUDGMENT. [ GOT, the statute, and that its aciion will not be revised; 1 that while it is competent for the court during the term, for good cause shown, to hear and grant such a motion, its refusal to grant it will only be revised when clearly wrong. 2 It is held that a crurt may set aside a judgment and grant a new trial during the term, upon motion filed after the lapse of two days, or without any motion, if the ends of justice require it. 3 667. To be determined during the term. All motions for new trials, in arrest of judgment, or to set aside a judgment, must be determined at the term of the court at which they are made. 4 Motions for new trial and in arrest of judgment must be determined on motion day of each week of the term, unless postponed to the next motion day, or, for good cause shown, to a subsequent day, and not later than two entir.6 days before the ad- journment of the court, at which time all such motions previously filed must be determined. 5 After the adjournment of a term of court at which a final judg- ment is rendered, such judgment is no longer subject to the control of the trial court, and after such adjournment a new trial cannot be granted, no matter what may be urged in its favor. If the party complaining has been prevented by fraud, accident or mistake from making his defense, his only remedy is by a new suit to reopen the case, and such suit has all the characteristics of an independent ac- tion. 6 An order of the court granting a new trial, made at the sec- ond term of the court after the rendition of the judgment, is in 1 Davis v. Zumwalt. 1 App. C. C., 597, citing Aldridge v. Mardoff, 32 T. 205; Maloy T. State, 33 T. 599; Gill v. Rodgers, 37 T. 628. -Linn v. Le Compte, 47 T. 440. citing Puckett v. Reed, 37 T. 309; Wood v. Wheeler, 7 T. 16. Motion for new trial was overruled, and notice of appeal given November 13. On November 15 an amended motion for new trial was filed, based upon the contents of depositions tiled by the defendant on Novem- ber 9. It was held that the action of the trial court in striking out said amended motion would not be revised. Conwill v. Railway Co., 85 T. 96 (19 S. W. Rep, 1017). That one motion for a new trial has been overruled is not a sufficient- reason for resorting to a new suit instead of filing a second motion, setting up the same matters relied on in such new suit. Bryerly v. Clark, 48 T. 345; Puck- ett v. Reed, 37 T. 308. A motion for a new trial made within two days after the execution of a writ of inquiry is in time. Roseboro v. Thompson, 1 App. C. C., g 19; Edwards v. James. 13 T. 52. The failure to file a motion in time was held not excused by the allegation that the party was "too poor to employ other counsel, and did not succeed in getting a lawyer on that account" until after the time had elapsed. Rice v. Scottish- American Mortg. Co., 30 S. W. Rep. 75. 3 Barton v. American Nat. Bank, 8 Civ. App. 223. * R S. 1374. Rule 71. Eddleman v. McGlathery, 74 T. 280 (11 S. W. Rep. 1100); Marcus v. Hemphill, 1 App. C. C., 1024. 88.*] direct violation of the statute, ami is void. It is not error f> court to vacate such void order. 1 A motion fora new trial not bcinir acted upon ii ! bv ition of law at tin- .-ml of the term;- it will l>e , . d as r abandoned. ami tin- judgment will not be re\ .ant, -timony to warrant the ver-i Not inoro than two new trials, oxcopt, etc. moiv than two new trials will In- ^ranted to either party in -.line cause, --xcept wlien the jury i n puiltv of soin. conduct or liave erreil in matter of law. 4 This is \; ; that where the court has committal no error, either in rul- 1 1 pon the trial or irivitiir the law of the case to the jurv. and the jury have followed the law so -.riven and have not been '.'iiiltv ol any ni;-.-, .nduet, no more than two new trials can !> ^i either party : hut so loiiy as the trial court commits en rulings upon the trial, or in giving the law to the jury, or the jury di-iv-ards the law when correctly iriven, and the trial coin- proper motion ret'u- ant a new trial, the injured party on appeal will he protected against any errors prejudicial to his i l>y having the judgment reversed and obtaining a new tri. i Hartz-Il v. Jones, 2 U. C. 560. The juris-lieti.n ..f tli.- <-<.int to et wide its own juil^>iifiit< .-..lit inn.- .luring the term; and this is so although all the step* : iU ,| by the -t.-itutr f->r tin- |-rt'. tidii <,f an a-.|M-;il h., . k.-n U-forw tli.- dost- of th.- t.-rni. Blum v. "\\Yttermark, "i" T. r.'">. The act of January 87, .vhich autliori/..--! tin- inancf of i \.-< ntion unl-r cin-niiiNtances naimrf during the term. eoiiM not oj>.-rate to ileprive the ili-tri'-t cour' -TPDt r as a court to revise ami elian^i- it-^ <>\\ n action and or.; ^ the t a new trial if necessary, notwiii th- i^uai cuti' : "f the court aii'l tin- tart that a n--\v trial h;i-l Ut-n r^ i aii'l noti'-i- of a|.]-al ^ivt-n. -. !.- T. :M7: McKean v. /ill .97. 498; Buss \. II ;th. 1 T. TI>: K,-vM..|.ls v. Will- Hart v. Ware, b T.I I-'.: Cain I 555. V.'hrii tin- ju'lym.-nt ha- trial. l- -an-' tip -s.rli.-t ITM not -ii|"|M.rt. .1 l\ th.- .-M I. in-.-, an-1 on a ttCQOd trial th- \-T-li.-t of tht- jnry. u|KHi 'lytln-sir '--r iu-w trial. ' en this point, cnulil not In- trvatril a* a ti-tal failiu.- t> <:;'.! : tuth" -rn>r. ami <>n appt-al by defendant the jnil^nirnt \vnuM be rvforn plaintilf- (Xt HaUrll v. M W. |J. ].. \Vht-rc the motion fur a u-\v trial is n.-t si-n.'.l. ..nly in;c in the in. Tit-, ( tin- controversy will U- ' >, 18 063. IRQ] iRn] Rulf r,s : Suth.-rlan S. W. K, , ! \V. ];.(.. l>. \Vli.-n n motion for it n.-w t. nth* fltMind thftt thfl .-vi.l.-nc,- was iiiMiHici. nt to warrant tin- \.-r.lu-t.l.ut t t in point of several iuuiiat. rial pirti. -imply that the court err--,l in ..\t-rrulinj; tin- im-lion f,,r . tin- a|-| llatr c..urt will not in.|uir- wh.-th.-r th.- :<>u. tain th.- v.-r.lict in partii-ular-. n-t -tat. -I in tin- motion for a new trial. K Rule 69. ||.:i r. N.'wuian, 67 T. 265 (3 S. W. Rep. 271). 630 NEW TRIAL AND ARREST OF JUDGMENT. [ 673, 074. favor the judgment was rendered, the court may allow the plead- ings to be amended as if no trial had been had or judgment ren- dered. 1 If the plaintiff should decline to amend, the suit would be dismissed as on demurrer. 2 673. Effect of order granting new trial. The granting of a new trial reinstates the cause upon the docket as though no trial had been had, and the court has no authority at a subsequent term to entertain a motion to set the order aside, 3 al- though it may have been improperly granted ; 4 and if the motion to set aside the order be sustained, the case may still be reinstated for trial on motion made at a subsequent term. 5 The effect of an order granting a new trial on the motion of one only of several parties who are jointly and severally sued is to vacate the judgment formerly rendered as to all the defendants. 6 674. Counter-affidavits. In passing upon a motion ior a new trial the discretion of the court is more enlarged when the motion is based upon matters de- hors the record and is supported by the affidavit of the interested party alone. The practice of presenting counter-affidavits generally would not be recognized, but it is held that where the matters com- plained of do not appear of record there is no reason why the court should not inform itself by affidavit and counter-affidavit. No in- convenience has resulted from the use of such affidavits in criminal practice on the question of negligence or not in moving for a new trial, 7 and the same practice is recommended to a limited extent in civil cases. 8 Counter-affidavits may be used to impeach the credi- 1 R. S. 1190. On the 4th of February judgment by default was rendered against the defendant. The defendant moved to arrest the judgment on the same day. and on the 16th of February the motion was sustained; the plaintiff having amended his petition, a second judgment was rendered on the same day, .and it was held that there was no error. Eakins v. Groesbeck, 24 T. 179. 2 Denison v. League, 16 T. 399. 3 San Antonio v. Dickman, 34 T. 647, citing Secrest v. Best, 6 T. 200, and Gor- man v. McFarland, 13 T. 237. * Wells v. Melville, 25 T. 337. 5 San Antonio v. Dickman, 34 T. 647. G., C. & S. F. Ry. Co. v. James, 73 T. 12 (10 S. W. Rep. 744). Where, in tres- l>:is> to try title, plaintiff's motion for a new trial is sustained as to some of the defendants and overruled as to others, this has the effect of granting a new trial as to all the defendants, and the case then stands on the docket as though there had been no trial. Parker v. Adams, 2 Civ. App. 357 (23 S. W. Rep. 357). The case of Roberts v. Heffner. 19 T. 130, does not state a different rule. Woot- ters v. Kauffman. 67 T. 488 (3 S. W. Rep. 465). And see Martin v. Crow, 28 T. 614; Holme v. Jones, 6 T. 242. 7 Dignowitty v. State, 17 T. 521; Augustine v. State, 20 T. 450, cited; also Reynolds v. State, 7 App. 516. 8 Davis v. Ransom, 17 T. 33d. It is held that where the ground of such motion 075.] NK\V TRIAL AND ARREST UK JUlXiil '.'.1 Ijility of a witness ivlicd on t<> u-.,tii'y in alleged newly -discovered evidence. 1 675. Various grounds of motion for a new trial. The |>rim-i|ul ^n.iimls of ;i motion fora new trial are: The mis- rmidiu-t ..f the pivvailinir party; -' the misconduct of the jury ; sur- of the judge; 1 that the verdict is against is an assert nl violation of a verbal agreement not to try the case in the abwnce of the adversary, an agreement which under the rules of court should have been in writing, counter -atli'lav its may he receive,! setting forJi the |>ur|K>rt of that agreement as understood by the opposing jwrty. See, also, Hannah v. Chad- wick. - J App. i . t '.. x r.p.i. where the applicant alleged that he was misled bjr neiit- of i. iry as to the time of trial, and the latter answered with a counter atli,la\ it. And see Fears v. Albea, 09 T. 43? (8 a W. Rep. 886V i H. & T. C. Ry. Co. \. Foi-\ tl.. Hi T. 171. citing Conradt v.Sixbee. 21 Wia.883; Williams v. Baldwin, is Johns. 489, and other cases. - \ breach of a juirol agreement to set a case for a future day of the term, by pressing a trial when the case is reached, and before the day set, does not. of itself, present a ground for a new trial Bryorly v. Clark, 48 T. 845. Where a breach of an agreement to postpone is alleged, it will be presumed, in the ab- sence of a showing to the contrary, that the party went into tiie trial volun- tarily. Linn v. I.e Coinpte, 47 T. 440. 3 Separation of the jury not a ground for a new trial (Edrington r. Ktger. 4 T. 89; Burns v. Paine, 8 T. 159); nor that some one conversed with a juror while they had a case under consideration (Ellis v. Ponton, 83 T. 484); but it i- that conversation by plaintiff with a juror, outside of the court room, after all the evidence is in, is a ground for a new trial (O., C. & S. F. Ry. Co. v. Schroeder. 25 S. W. Rep. 306): but it must be shown that the jury were probably influenced to the injury of the defendant. W. U. TeL Co. v. Pells, 2 App. l AHi.lavit- of jurors will not be received to show misconduct. L & C. N. Ry. ion. 7-.' T. 1 1 , 11 a W. Rep. 1033); Wills Point Bank v. Bates. 72 T. 187 (10 S. W. Rep. :54s, ; I .etcher v. Morrison, 79 T. 240 (14 & W. Rep. 1010); Whitlow v. Moore, 1 App. C. C., J; 1053; NYwc,.mb v. Babb, 2 App. C. C., S 760; Mason r, Russell, 1 T. 7-Jl : Han-lley v. I.ei^h. 8 T. 129; Burns v. Paine. 8 T. It i> too late after ver.iict to object that a juror was not a freeholder (Schuster v. La Londe, 57 T. 28): or that he was not summoned by a sworn officer. New- man v. l>. ..l-oii. i T. 91. If a dis.jualiHcation of a juror was discovered during the trial, it i- too late to urge it after venlict. Blanton v. Mayes, 78 T. 417 vlO a \v * \Vh.-n- it is evi.lent from all the facts attending the case that by a ruling of the court in the progress ,,t tlie trial a party was cut off from trying his cast on the merit-, tortitied with any other rit;ht. though in .strictness the ruling mar ;-ct, yet if it is made to appear that tlie default of the party wa n. .t inexcusable, and he presents a jn-inut facie case on the merits, he ought to IN- allowed a n.-u- trial. Chambers v. Fisk, 15 T. 885, This rule applies wh appeal- that a party has sulfen-d injustice by I* inn refused a ContinUJin tl.oiuh In- -I "\\ in- %vas not sutlicient in la\\. Il.i K -'Tty v. Scott, 10 T. 525; Clul- . Where a party applied for a new tiial on the ground that the court refuaed t<> po-t|M>tu< the case t<> ^ive time to move |.. r a continuance, it was held that -it devolved u|K,n him to negative the i.l, a by jilll.lnv it that hi* failure to ak for a continuance \iinler a s<\orn -i:it.n,, M result of his own fault or neglect. sup|.rt.-d by affidavit of the absent witneM, C3iJ NEW TRIAL AND ARREST OF JUDGMENT. [ C7(>, the law; that the verdict is against the evidence; that the damages are excessive; that the damages are manifestly too small; 1 newly- discovered evidence. Violation of the rules of argument may be a ground for a new trial, as where counsel states or assumes facts not in evidence, with- out a rebuke from the court. 2 An application to set aside a verdict and judgment where there is no error in law is an equitable appeal to the souritl discretion of the court. 3 A new trial would not be granted in any case wherein the original proceedings were void for want of jurisdiction. 4 When a party has permitted a judgment to be recovered against him by his own negligence or laches, a new trial will not be granted. Nor has a want of knowledge by a party of facts which it was material for him to know been held to afford him any ground for relief, when, by the use of reasonable diligence, he might have known such facts. In such case the question is, not what the party knew, but what, by using reasonable diligence, he might have known. 5 If a party is not prepared to go to trial, he should move for a continuance in order to become entitled to a new trial. 6 "Where it is apparent that the jury have made a mistake as to the facts, the appellate court will award a new trial. 7 A party who risks a verdict on the testimony of an intoxicated witness is not en- titled to a new trial. The condition of the witness would have been, a good ground for a continuance. 8 676. Newly-discovered evidence. When a new trial is applied for on the ground oi newly-dis- covered evidence, it must be shown that the evidence is material,* if it could be procured, as to the facts he would testify to, or of his own, of such facts as said witness would testify to, if the affidavit of the witness could not be procured in time. Addington v. Bryson, 1 App. C. C., 1293, citing Ward v, Cobbs. 14 T. 304; Spencer v. Kinnard, 12 T. 180; Chilson v. Reeves, 29 T. 280. An application for a new trial because of the refusal of a continuance must show facts constituting a meritorious defense which applicant was prevented from pleading, and such statement must be verified. Hastings v. Winters, 26- S. W. R3 P . 283. 1 R. S. 1452. 2 G.. H. & S. A. Ry. Co. v. Marsden, 1 App. C. C., 1001. 3 Clute v. Ewing, 21 T. 677. Clements v. City of San Antonio, 34 T. 25. 6 Power v. Gillespie, 27 T. 370. 6 Devine v. Martin, 15 T. 25; Cochrane v. Middleton, 13 T. 275. " Basse v. Denniston, 39 T. 293. 8 Land v. Miller, 7 T. 463. Johnson v. Flint, 75 T. 379 (12 S. W. Rep. 1120); Hocker v. Day, 80 T. 529 (Iff S. W. Rep. 322); Loonie v. Burt, 80 T. 582 (16 S. W. Rep. 439); Eddy v. Newton, 22 3. W. Rep. 533; McCartney v. Martin, 1 U. C. 143: Davis v. Zumwalt, 1 App, C. C., 598. Motion for new trial properly overruled where the newly-discov- "*>.] NEW TRIAL AM \i:i: that it is nut merely cumulative, 1 and that, if admitted, it would *bly change the remit. 1 It must also be shown t. <>\\-\- xistence of the new evidence was acquired since t In- former trial/ and that it was not owin^to the want of duedii.- that it was nut sooner obtained.' The new Iv -discovered en-d a?kleni \vas n-.t admis>il,le. Holman r, 168. W. Rep.9$4; Baily v. Trammel!. '.'7 T. :i!7: D.ml.-y v. V. v> T. 801. 1 A.I \V. i:-p. Cartney v. Martin. 1 U. (,'. 14:1: Waller v. Hrowr Sabine & E. T. Ky. Co. v. Wood, 69 T. f.7!i .: s. w. ];. .,,. son, 76 T. 235: Howies v. ( ;i.i--,,\v . _> f. f. 711: l.;,,t I. & R R I: Ikjon, 1 S. W. Rep. 63-,': K-ldy . N.-t.,n. VJ S. W. i Rep. 334: Ratto v. St. Paul's L. & M. Ins. Co.. '.' A pp. < i v. Cam- eron, 1 App. '. ('.. .i 111:}: Wilson v. Bainl. 1 A pp. C. ( '.. .i 711. Tli.- r--a- the rule furl>i.llintf A new trial for the purpose of admitting cumul mony does not apply wliere the party has had no fair op|xrt unity t- |>; and adduce evidence on an issue raised by his adversary for the h'rst tim- ing the trial. Wolf v. Mahan. r7 T. 171. Cumulative evidence, within the meaning of the rule, is additional of the same kind to the same point Although evidence tends to \-\-..\ til-- same proposition as that previously introdur>-d. yet it i not i-umulativr it is of a different character, and merely tends to prove tin- former prop. by proof of a new and distinct fact. So where the newly-discoverel was declaration- or admissions of a party, and no evidence of the kind had bwn given on the trial, it \vas. held that it was not cumulative, "l.ut must be h-ld to be original evidence to establish a new fact, the ali-h the v. Francis. 31 - Cartney v. Martin. 1 f. < '. 1 1:1: Allyn v. Willi-. I I >avw v. '/. App. tird.'l App. T. I 1 .. 2 711: Fort v. ( \|.p. :.-itto v. St. Paul's L. ,v M. ln>. ('.... v.' App. C. ( '.. ? 11 s . Conwill v. Railway Co., ^ T. \\ . I'.i S. W. Re|>. HMT App. 19 c.'n s. w. i:.-p. :: Edward*, 21 T. it.n-y v. Martin. 1 I Johnson v. Flint. 7.'. T W. 1J. p. .rtupy v. Martin. 1 U. C. 14:i: 11 A iiny. 63 T. 17','; M.K Vac, Ry. CK p, MM white v. Banis, 39 T ;: in s. W. i: (rinn. .n. -J App. '.<... tr.: I':.M- v. X.uuiu.ilt. 1 \pp. i '. C, g 80& See. also, the following cas-s. ,,n tin- p..mt> al Mad-len v. Shej.ni - v. .Johns,,!!. T. ::il; Land v. Mill. r. 7 T. !'.:!. W,-Mi v. Nii-M- Abies v. Donley. id. - v. M.-Cuth'n. '.' T. '."I: Harrell v. Hill. Deanv. Border. 15 T. 298; Stewart v. H.iniiltmi. 1 T. W; Hopkins v. Clark, '.:;4 NKW TRIAL AND ARREST OF JUDGMENT. [ 676. mi>t be fully stated; if it is documentary, it should be produced; if it is oral, the affidavit of the witness to the new facts proposed to be proved by him must accompany the application, or a suffi- cient showing be made why it is not produced. 1 The facts show- ing diligence must be stated, or the want of diligence must be a -counted for. 2 The motion should state from whom the applicant d rived his information as to the new testimony, and the affidavit -of the alleged witness to the effect that he will testify to the facts stated in the application should be produced. 3 AVhere the object of the newly-discovered evidence is to impeach T. 64; Burnley v. Rice, 21 T. 171: Vardeman v. Edwards, 21 T. 737; Ham v. Tay- lor, 22 T. 225; Frizzell v. Johnson, 30 T. 31; Williams v. Amis. 30 T. 37; Moore v. Anderson, 30 T. 224; Zeigler v. Stefanel;, 31 T. 29. When defendant moves for a new trial because of newly-discovered evidence that the plaintiff suing in her own name has a husband living, a mere statement of the affidavit that counsel had been of the belief that plaintiff's husband was dead, without show- ing reason therefor or diligence in seeking to ascertain the real fact, will not substantiate the motion. W. U. Tel. Co. v. Walker, 26 S. W. Rep. 858. A party must take notice from allegations in the pleadings that evidence of a certain character is needed, and must show diligence in his efforts to discover and obtain it. Waples v. Overaker, 77 T. 7 (13 S. W. Rep. 527). !Glasscock v. Manor, 4 T. 7; Edrington v. Kiger, 4 T. 89; Spillars v. Curry, 10 T. 143; Steinlien v. Dial, id. 268; Hagerty v. Scott, id. 525; Ward v. Cobbs, 14 T. 303; Burnley v. Rice, 21 T. 171; Wisson v. Baird, 1 App. C. C., 711. Applica- tions for new trial on the ground of newly -discovered evidence will be scruti- nized with much strictness. They are addressed much to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court has not exercised its dis- cretion according to the established rules of law and the principles of adjudged cases. Mitchell v. Bass, 26 T. 372. When application is made for a new trial during the term, and the newly- discovered evidence is material and important, and, if admitted, would or might probably change the result in a material respect, and is clearly admissible, and when, upon a review of the whole case, the appellate court is not certain that substantial justice has been awarded the applicant upon all the material issues by the judgment of the court below, and when to allow the verdict to stand under such circumstances would very likely depi'ive him of a substantial right ^ind work injustice, a new trial may be directed, though the diligence of the applicant may not reach the highest or most exacting standard. Alexander v. Solomon, 15 S. W. Rep. 906; H. & T. C. Ry. Co. v. Forsyth, 49 T. 171. 2 Wright v. Bennett, 1 App. C. C., 1078; Hocker v. Day, 80 T. 529 (16 S. W. Rep. 322); Loonie v. Burt, 80 T. 582 (16 S. W. Rep. 439); H. & T. C. Ry. Co. v. Hollis, 2 App. C. C., 220; Traylor v. Townsend, 61 T. 144, ; \V. U. TeL Co. v. Hainan, 2 Civ. App. 100 (20 S. W. Rep. 1133); Russell v. Nail, 79 T. 664 (15 S. W. Rep. 635); Adams v. Halff, 24 S. W. Rep. 334; Hodges v. Ross, & Civ. App. 437 (25 S. W. Rep. 975). The motion is fatally defective if not sup- ported by the affidavit of the applicant. Moores v. Wills, 69 T. 109 (5 S. W. Rep. 675). On a question of boundary, the affidavits were stricken out because not filed at time of motion for new trial, and it was held that an amended motion, based on the affidavits, showing diligence, newly-discovered evidence not cumu- lative, and material, ought to have been allowed. Day v. Goodman, 17 S. W. Bep. 475. 77.] IK1A1. !- .11 IN.V the credit of a witne- iid tluit a new trial is rarelv if < ; nor will a new trial be granted mi this Around, when the .11 be to let in an equitable defense. 1 A new trial should be granted on account of new lv discovered uony of a witness who testified at the trial, but who did not make known his knowledge of the facts relied on until after the ? 677. Surprise may be ground for a new trial. When- a party or his counsel an- taken by surprise, whe' by fraud or accident, on a material point or circuniNtai. could not have reasonably been anticipated, and \vi.. ,t of skill, care or attention cannot be justly imputed, and injustice has done, a new trial will be granted. 1 llut where the "Wilier to ;i misapprehension Of the law of the case, it was held that a motion fora new trial was properly overruled.' 1 Whet party is surprised by the unauthori/.ed and unexpected absence of a witne>s. after the commencement of the trial, the better pra is to move for a continuance as soon as the absence of the witness is discovered; and unless this is done, it seems doubtful whether it can l>e made the ground of a motion for a new trial.* The want of .lection of a fact by a witness, which by due attention n. been remembered, is not a ground for granting a new trial: nor is an inadvertent omission by a witness to state a material iScranton v. Tilley, 16 T. 183: Metzger v. Wemller. :{-'. T. 378; Hou St. K - a. HO T. *>< ili s. W. Rep.81); Angel v. Simmon* 26 8L W. oft I. & M. Ins. r... -' A|.|.. r. r., ? UK The rule doe* \>\>\y \vlit-rt- tli. t< stiiunriy goes to prove farts material to the iue in tii- case, though it may aUn tt-iul to contradict or les.vn the will be receive- 1 l iinjx-ai-h tlie ci f the newly-discovered witness, or it may be shown I-. I or unqueationablr establishfil physical l;i. t- that th- 'i.- n ,,l t.-tiimmy caniint ! tru.. H. A T. ,. F..r-ytli. J'.i T. 171. A ru-w trial will not be granted when ita ob- ject is merely to contradict an inference deduriblr fn.ru th.- t- -tini'iny of the 8UCCes>fnl party, an. I \\li.-n the atli-la\it of tin- iin|-a i.in^ ^ it new U not filed aii-1 it i- iit -h\vn that in- t-stiiiK>u\ coiil.l U olitained on another trial Onir soway v. White, 70 T. 47:. ,* s. \V. li,-|,. 117 . Mi.l.ll. t. n. i:; -ster v. Martin, 80 T. 118; Aldridgv r. MM, 'Bufonl v. Bostick. 50 T Trials, 1GS, ( Jutf. y v. Moaeley. 21 T. 4W. A new trial may be granted \\ the Ki'mi'l ( >urpn-. . . \. -n when su.-h surprise {occasioned byacorn-(t ruling "f the mirt. ami although negligence roay |rofierly be inv putahle tn the att.rrn -y. if tlie party asking it lias a in. ritoriou* cause of a n.ss injusti.-e wcul.l i.th.-rwise be done him. Br '-lick. SOT. 871. Hips v. Wheeler. U T. 586: Beauchainn v. I. A Co., 36 T. Stt: -a. I..t.lan. 17 T. S4I: Ijind v. Miller. 7 T. MI. -s .liir.-r Mtotb) ' i ins of a verbal a^r.^-nn-nt. and one gOM ! trial unpr-| -ut ni--\iii^ t-r a "tit muance. he Ui . to a ji u trial 636 NEW TRIAL AND ARREST OF JUDGMENT. [ <"> i *. known to him. But the case is different where the witness has purposely withheld from the party information of a material fact. 1 Where a witness has misled a party as to his testimony on a material point, which can be supplied on another trial, a new trial will be granted. 2 But the fact that counsel is surprised by the testimony of a witness is not sufficient ground for a new trial where there is no evidence of an intention on the part of the witness to deceive. 3 It is no ground for a new trial that evidence was admitted with- out a proper ground being laid in the pleadings, where the part} r failed to object to the evidence at the time it was offered. 4 Defend- ant's surprise at the testimony of plaintiff's witnesses is not ground for granting a new trial when such testimony is adduced to issues clearly indicated by plaintiff's pleading, the purpose of which was to enable defendant to be prepared with testimony to disprove its. allegations. 5 A motion to set aside a judgment on account of surprise must not only show that the party has a meritorious cause of action or de- fense, but he must set forth under oath, not in general terms, but specifically, the facts from which his meritorious cause of action or defense results. 6 678. Absent testimony. t Absence of witnesses or of testimony is not a ground for a new trial where no motion was made to continue the cause, nor excuse iKing v. Gray, 17 T. 62; Gregg v. Bankhead, 22 T. 245. 2 Delmas v. Margo, 25 T. 1. It is held that where a party shows reasonable care and diligence to provide himself with testimony to make out his case, and uses the ordinary caution of a prudent attorney in informing himself of the facts to which the witnesses will depose, and is then disappointed by the testi- mony of his witnesses, so that an injury will result, which may be remedied by another trial, a new trial ought to be granted. 3 Fears v. Albea, 69 T. 437 (6 S. W. Rep. 286). An appellate cou/t will not re- verse a judgment refusing a new trial on the ground of surprise, on account of the testimony of a witness, when there has been no prudence exercised in ascer- taining what he would swear before the trial, no effort to withdraw the an- nouncement of ready for trial on account of the surprise, or nonsuit taken, and 1 when there has been no apparent abuse of judicial discretion. Dotson v. Moss, 58 T. 152; Taylor Water Co. v. Dillard, 29 S. W. Rep. 662. The motion must state a meritorious defense. Dempsey v. Taylor, 4 Civ. App. 126 (23 S. W. Rep. 220). Where a new trial is sought on the ground that a witness was mistaken, and has since refreshed his memory, and will testify differently on another trial, the affidavit of the witness to that effect must be offered, and the mate- riality of the testimony should appear. Spillars v. Curry, 10 T. 143. 4 Bailey v. Hicks, 16 T. 222; Fowler v. Chapman, 1 App. C. C., S 965. It seems that if the party is in fact surprised, he ought to ask leave to withdraw his an- nouncement, G., C. & S. F. Ry. Co. v. Booton, 4 App. C. C., g 233. '"G., C. & S. F. Ry. Co. v. Shearer, 1 Civ. App. 343 (21 S. W. Rep. 133); McNeally v. Stroud. 22 T. 229; Anderson v. Duffield, 8 T. 237. 6 Contreras v. Haynes, 61 T. 103: Montgomery v. Carlton, 56 T. 431; Dempsey v. Taylor, 4 Civ. App. 126 (23 S. W. Rep. 220); Pickett v. Martin, 16 S. W. Rep. 1007. NEW TRIAL AND ARREST OF Jl 637 ilure to make such IM..I : .>n. 1 When the material;' nee is discovered before the condition of :. the should then move fora continuance, otherwise a nev. will be refused. 1 purport of the de-iivd t.--; miony should In- stated in th< lion; 1 the names of the witnesses must be affidavits, showing the farts to which they can testify, must be pro- duced. <>r their ahs.-nce must be accounted fur.' If no dili^eiu 'btain the testimony of the witness, the application maybe A party to a suit who>,e testimony is material to his . may |>r--fer t> give his testimony in person, and may therefore de- to liave iiis deposition taken in his own behalf. Hut if he do so the risk of losing the benefit of his testimony in the he should fail from any cause to attend upon the trial. II 'd to take his chance of attendance upon the trial, his ah- should not in an ordinary case he. permitted to result to the prej- adice of the opposite party. It should neither be a ground for a inuan. e nor for the granting of a new trial.' ?' 670. Absence of a party or his counsel. Where a cau-e is tried in the absence of a party or his attor in order to obtain a new trial on that ground, it must be shown that such abseu -e \\ as unavoidable, and that injustice has l>een done. The application must show merits, setting out the names of the Cook v. Soutlnvick, 9 T. 165; KilRore v. .Ionian, 11 T. 341. - Llano Co. v. City of Llano, 28 S. W. Reix 988. Boott, IDT. MVanl v. Colili. ! ; . luk.-. nT U". I0a \v. Rap "''" Tli. motion may be refused on i.iini'l tli.-it tin- facts jirnv!-.! in th.- cat- n-iult-r th- t.-- M uinviirthy <( cn-.Jit. Jernigan v. Waim-r, TJ T. 189. In an action f--r .iaina^. -s for p.-rsonal injuries uKJ'in^t a rail i'anjr, i.Dtliin^ in plaintifT's j-titi.n to imlirat.- that h.- a in-t in hi- inin. I at any tinif. < 'n crosxaiiiinati<>n In- >: uale certain ii-1 t.. l.y hi- nii-.li.-al atti-nilanU he was out of ln> ri^'ln at th>- linn-. It.-f--n.lant- coiil.l n..t .li-|.n.\.- tin-. an p-n.-ral ma: n.il\\ay rf|iriniaii: an i-ni|.l..\ -. t In- >.-rti..i fni|>.mv. .1. f'-n.lant. on a. .. \mt .-f the r, it- that tli>- < riminal d.H-k.-t was nn-l fora new \. I..HP 18*>. C38 NEW TRIAL AND ARREST OF JUDGMENT. [ 070. witnesses by whom the case can be supported, and the evidence they would give; the affidavits of the witnesses themselves should be ob- tained if possible; and if not, the reason therefor should be shown. 1 Absence cf counsel, if material, should be urged as a ground for a continuance ! Where the defendant in a cross-bill prayed to have his field-notes, corrected, and a cloud removed from his title, the case being tried in the absence of the plaintiff, resulting in a judgment in favor of the defendant, it was held that the motion for a new trial, on the ground that the plaintiff had a meritorious cause of action and for other reasons sufficiently established, was, defective in not exhibit- ing the chain of title or other documentary evidence relied on. 3 If a party is forced to trial in the absence of his counsel, or he is unavoidably absent, and he shows diligence and a meritorious de- fense or cause of action, the rule is that a new trial ought to be awarded. 4 A new trial will not be granted because of the absence of the applicant through the neglect of his attorney to notify him. 5 It is no ground for new trial that a party represented by attor- ney was absent on the day of trial, and that if present he could 1 Strippleman v. Clark, 11 T. 296; Spencer v. Kinnard, 12 T. 180; Ward v. Cobh, 14 T. 303; Dorn v. Best, 15 T. 62; Power v. Gillespie, 27 T. 370. That the defend- ant had intrusted his case to an attorney who, he expected, would have given it proper attention; that he did not think it necessary to be present in person; that his account, pleaded in setoff, was just, and plaintiff had promised to allow it; and that the cause was tried in the absence of himself and attorney, presents no sufficient ground for a new trial. Freeman v. Neyland, 23 T. 529. The ab- sence of counsel to attend another court does not, without other circumstances, furnish any ground for opening a judgment and granting a new trial. Power v. Gillespie, 27 T. 370. If the judgment goes by default, and the party discloses a meritorious defense, the motion ought to be granted. Tullis v. Scott, 38 T. 537. The absence of a party upon official public business is not alone a sufficient ground for a new trial. Citizens, who bear the double burden of both public and private duties, must exercise the circumspection to anticipate and provide for the possible contingency of their conflict. Houston v. Jennings, 12 T. 487 ; Clute v. Ewing, 21 T. 677. 2 W. U. Tel. Co. v. Brooks, 78 T. 331 (14 S. W. Rep. 699). 3 Montgomery v. Carlton, 56 T. 431. Where affirmative relief is awarded a de- fendant on default by the plaintiff, the right to a new trial is governed by the rules applicable to a default by a defendant. Truehart v. Simpson, 24 S. W. Rep. 842. 4 Wortham v. Bolton, 3 App. C. C., S 312; liopkins v. Niggli, 6 S. W. Rep. G25; Griffin v. Towns, 25 S. W. Rep. 968. Absence of a counsel is not a sufficient ground where it was known a week or more before the trial that counsel could probably not be present; there is time in such case to procure other counsel. I. & G. N. Ry. Co. v. Miller, 28 S. W. Rep. 233. See I. & G. N. Ry. Co. v. Miller, 87 T. 430 (29 S. W. Rep. 235). 5 Halton v. Salmons, 2 S. W. Rep. 753. It is not a sufficient ground that a party failed to attend with his witnesses because his attorney told him he did not think the case would be tried. Rice v. Scottish-American Mortg. Co., 30- 8. W. Rep. 75. 30,681. M.W IKIAI. AM- AKKK.-I <{ .n I...M; have established by his own evidence facts material to his cause which were not known to his attorney. 1 i 8 680. Error in the charge of the court. If an erroneous charge has been L'iven to the jury, which may have inHuenc"d tin- finding, and in t lie absence of which tin- tind- ing might have been different, a new trial will be granted, although the court may be satisfied with the verdict.- I5ut if the verdi.-t could not, upon the evidence, have been different, and the ji, of the case has Keen attained, the verdict will not l>e distin must be shown that the charge produced actual <>r po-,>ible inj the error in the (harp- must he material. to the prejudice of the- party complaining. 8 When the ivn.nl shows that the verdict warranted ly the pleading, and was not outride the is-u abstract error in the charge not appearing ti have affected the re- sult is no ground for reversal." 681. Testimony illegally admitted or excluded. Anew trial will bo granted when illegal testimony i mittecl; 7 but it must appear that the evidence is clearly inadi: ble, and #oes to the merits, and is not supported or subsequently supplied bv le^-al testimony. It' the evidence is upon an immaterial point, and could not have misled the jury; or if it is merely cuinu- 1 Helm v. XXYaver. 09 T. 143 (6 a W. Rep. 450>. XVI.ere the de|M-it i absent defendant are n-jul on the trial, ami no Mitlirimt n-a-on is slmwi all his tf-tiiii..n\ \\.i- no t pni.lucf.1 l.y .l.-p.-itioii. a IH-\V trial i- pi : iwed. Ellis v. HlanU-. IT. S. XV. K-,,. :{09. If a party i- r- pi -.iitr. 1 l>y conns.-! at th.- trial, tin- fact that he helieve- absent c>unsi-l \vouM have madeal>'tt.T pi- -.ntation ..I In- out 'im-1 for a new trial. Alain.. F. In-. ('<. v. I.an.-aM.T. ,'s S. \V. i v. Shuber. 77 T. V I 18 BL \V. l;, p. fiU), the cas.- \va- tak.-n fn-in the jury -i ami trit-,1 \vithnit a jury in the al-mc.- of .l.-f.'ii.lant. an. I it was In M that he was entitle. 1 to a new trial. v. Mitrhi-H. 1 T. 41:!: Chan.ll.-r v. Fulton. 1<> T . tlioiih in -..me jiarti.-nlar ol.ii,.\i,.u- to , ritieism. Imt \\hirh. taken in C with <.ther porti-.n- of the . il.l imt h.. the jr. -in- the jii'l-^iiient -1 T. ~t that an erroneous rharge h*8 I the jury, it i- u.. C8QM tot rrrUMl llulil-x v. BtokMi -'-' T. '.'i:. S,., v. Chisholm. 'J San Antonio St. Ry. Co. v. Me.-hl- r. -7 T. 828 (80 - Mitchell. 1 T. !:!: ( -..iiun-r.-ial Mank v. .!..., 28 T.635: Hohanan v. II Wade. 83 'l H.-nsioii Ca Shiner, 5 I'iv. A pp. ">7 -, S. XV. K,-p. '.'I ^'I'-r. 'W ! Rep. 501). Blum v. I.L-ht. ^1 O.. II. ,V S. X. K'y. Oa fj liebhiinty. 58 T. -.'; Shuiniinl v. Johiwon, W T. 70 (178. XV. 1 Hill v. Kailuav C,... - |X 10W). "Thurinon.l v. Trammel. -' : '1^,287.581 i'.-1'l NEW TRIAL AND ARREST OF JUDGMENT. [ 681. lativo, and there is sufficient evidence without it to support the ver- dict of the jury, a new trial will not be granted. 1 Wiicl her the admission and subsequent exclusion of improper testimony on the trial of a cause should afford ground for revers- ing a judgment must depend on a consideration of the facts in the particular case. It is only in cases where, after a consideration of all the facts, it is probable that the finding of the jury may have been influenced by the improper admission of the testimony, that the judgment will be reversed. 2 Where the case is tried before a jury, and each party has produced evidence sufficient to establish Iris case, any illegal testimony admitted in favor of the winning party will authorize a reversal. Where the trial is by the court, the appellate court might presume that the judge discarded the illegal testimony. 3 The exclusion of legal testimony will authorize a new trial, 4 pro- vided the rejected evidence might have changed the result. 5 If it is manifest that it could not have affected the result, its exclusion is immaterial. 6 In trials before the court, where the evidence is contradictory and nearly balanced, the exclusion of testimony .slightly corroborating the losing party will be sufficient ground for reversal the testimony to the controlling fact being confined to the parties, one swearing to the fact and the other denying it. 7 1 Burnham v. Walker, 1 App. C. C., 903; Patton v. Gregory, 21 T. 513; Smith v. Hughes, 23 T. 249; Dignowitty v. Alexander, 25 T. Sup. 162; Hunter v. Hub- bard, 26 T. 537; Dailey v. Starr, 26 T. 562; Cooper v. State, 23 T. 331; Sacra v. Stewart, 32 T. 185; Cassin v. La Salle Co., 1 Civ. App. 127 (21 S. W. Rep. 122); San Antonio St. By. Co. v. Mechler, 87 T. 628 (30 S. W. Rep. 899). Where judgment could not properly have been rendered otherwise, errors in the admission of evi- dence become immaterial. Pearce v. Jackson, 84 T. 515 (19 S. W. Rep. 690); Leman v. Borden, 83 T. 620 (19 S. W. Rep. 160); Rio Grande & E. P. Ry. Co. v. Miluio, 79 T. 628 (15 S. W. Rep. 475); Wilson v. Lucas, 78 T. 292 (14 S. W. Rep. 690). If it cannot be known that the improper evidence was not injurious to the party complaining, the judgment will be reversed (Jackson v. Deslonde. 1 U. C. 674), as in case of evidence calculated to arouse the feelings of the jury. Q., C. & S. F. Ry. Co. v. Levy, 59 T. 542. - Dillinghara v. Russell, 73 T. 47 (11 S. W. Rep. 139); Schoolher v. Hutchins, 66 T. 3i4 (1 S. W. Rep. 266). The practice of admitting improper testimony with the promise or expectation of afterwards directing the jury not to consider it, or of controlling its effect by a charge, is one not to be encouraged; when such testimony results in rousing the sympathies or prejudice, it is apt to influence the finding, notwithstanding a charge to disregard it. G., C. & S. F. Ry. Co. v. Levy, 59 T. 542. 8 Ross v. Kornrumpf, 64 T. 390; Clayton v. McKinnon, 54 T. 206; Schleicher v. Markward, 61 T. 99; Lindsay v. Jaffray, 55 T. 626. Keys v. Baldwin, 33 T. 666. * Taylor v. Ferguson. 87 T. 1 (26 S. W. Rep. 46). ' Msup v. Jordan, 69 T. 300 (6 S. W. Rep. 831); Lewis v. Simon, 72 T. 470 (10 S. \V. Rep. 554); Thurman v. Blankenship & Blake Co.. 79 T. 171 (15 S. W. Rep. 887): Converse v. Langshaw, 81 T. 275 (16 S. W. Rep. 1031); Stover v. Garvin, 22 T. 9: Atkinson v. Wilson, 31 T. 643. 7 Dupree v. Estelle, 72 T. 575 (tO S. W. Rep. 666). In a case peculiarly of fact, 4 682.] NK\V IKIA1. AM> ARREST OF JL'DGV ? 682. Verdict not supported by evidence. Tin- emu- is in mutter of la\v where a verdict is based on insuffi- cient evidence, and a thirtl verdict will 1x3 set aside; 1 or the judg- ment may l.e reversed and the cause dismissed.' Doubts as to the reasonable sufficiency of the evidence to sustain a verdict may bv the trial court lw resolved in favor of the verdict; but when it is dear that tin- evidence is not reasonably sufficient, under all th- en instances of the case, to satisfy the mind of the truth of the alle- 'iis on which it was rendered, it should be set aside; and if this rule has not been observed by the trial court, the judgment baaed .eh verdict becomes a proper subject of revision on appeal. 1 lint it is only when there is no evidence to support a verdict, or it is palpably airainst the weight of the evidence, that an appellate court can disturb it;' this is the rule of practice whether the tind- in;: ! that of a jury or of the court. 5 If the evidence is reasonably .-utlicient to support a verdict, a judgment will not be reversed upon the facts,* or if there is ample evidence to authorize a verdict for either party. 7 When it appears that there was lawful evidence on which to base the verdict, it will not be reversed on the sole gr ihat the court believes the evidence insufficient to support it." It is the peculiar and exclusive province of the jury to judge of the credibility of witnesses and to weigh the evidence; and their verdict will not be set aside, as against the evidence, merely because the court might, from an examination of the evidence, have arrived at a result different from that found by the jury.' depending upon the credibility of witnesses and the weight to be given to evi- . and where the rejected testimony went to disputed fact*, and t t to be attached to the witnesses on the other ri vidence will be deemed material Todd v. Dysart, 23 T. 590; Rogers v. Grain, 80 T. 284; Ballard v. Perry, 28 T. i Randall v. Collins, 58 T. 231 ; Pilcher v. Kirk, 60 T. 168. n?ager v. Douglass, 11 T. 4*4 (14 a W. Rep. 150). EL&T .. v. Si-hmi.lt. 1 T. 8WL : I^itliam v. Selkirk. 11 T. :H4: Alley v. Booth. 16 T. 94; Stewart v. Hamilton. 1- Meckling. 22 T. 36; Walker T. Walker. 29 T. 331; Anderson v. Anderson, 23 T. 639; Howard v. Ray, 25 T. 88; Young T. Read. 9op. lit; Adams Y. George, IB ' v. Haley, 28 T. 52: Swin- |{, N >th. H Mr. md v. S|iriiik'li-ld, 28 T. 640. Tuttl.- 38 T. Hledsoe, ::. nity r.,unty LumU-r To. v. I'in.-karl. 4 I'iv. App, 671 (88 a W. Rep. 720, 1015); Rio Grande B. & T. r. .. % . Varela, 22 S. W. Rep. 99. Moore v. Rogers, 84 T. 1 (19 S. W. Rep. 283). Reeves v. Roberts, 62 T. 550. L A O. N. Ry. Co. v. Dawson. 62 T. 260. Briscoe v. Bronaugh, 1 T. 326; Cummins v. Rioe, 19 T. 225; Pmtton v. Greg- 41 642 NEW TRIAL AND ARREST OF JUDGMENT. [ 683.. 683. Verdict contrary to the evidence. The most common ground for a motion for a new trial is that the verdict of the jury is against evidence. Where the unsuccess- ful party relies for a reversal of the judgment by the appellate court on this ground, it is necessary that he should make a motion for a new trial. 1 In this class of cases the application is, to a great extent, addressed to the sound discretion of the judge who presides at the trial ; who, from his means of observing the man- ner of the witnesses, and from having heard them testify, can bet- ter determine whether the justice of the case, on the whole, has been attained. 2 It has been well said that great injustice may be done by lending too easy an ear to applications for new trials. A party whose cause is just may be thus delayed in its prosecution until his witnesses are dead, his evidence lost or destroyed, and his rights ultimately defeated ; or, if successful in the end, even success may not compensate for the harassment, vexation and expense of causelessly protracted litigation. 3 But it must be observed that an ory, 21 T. 513; Montgomery v. Culton, 23 T. 156; Baldridge v. Gordon. 24 T. 288. Where it is not a case of conflict, but of entire deficiency of evidence, a new trial ought to be granted. Moore v. Anderson, 30 T. 224; Rowe v. Collier, 25 T. Sup. 252. The opinion of the majority of a jury, though accepted as a verdict by agree- ment of parties, is not entitled to the consideration conceded to verdicts, and such a finding will be set aside if not supported by the weight of the evidence. Welder v. Hunt, 34 T. 44. i Hart v. Ware, 8 T. 115; Cain v. Mack, 33 T. 135; Clark v. Pearce,. 80 T. 146 (15 S. W. Rep. 787); Daniels v. Creekmore, 27 S. W. Rep. 148. Where a motion for a new trial is based upon an erroneous verdict, the grounds upon which the ver- dict is attacked as contrary to the evidence should be distinctly stated. White v. Wadlington, 78 T. 159 (14 S. W. Rep. 296). Under a motion for a new trial because "the verdict is contrary to and not supported by the evidence,'' when overruled, special matters of error cannot be assigned. The matter complained of must be called to the attention of the trial court before it can be considered on appeal. Degener v. O'Leary, 85 T. 171 (19 S. W. Rep. 1004). And see Jacobs v. Hawkins, 63 T. 1. 2Edrington v. Kiger, 4 T. 89; Latham v. Selkirk, 11 T. 314; Goss v. McClaren. 17 T. 107. A verdict must appear to be clearly wrong to authorize the court to set it aside as contrary to the evidence. Morgan v, Giddings, 1 S. W. Rep. 369: H. & T. C. Ry. Co. v. Lee, 69 T. 556 (7 S. W. Rep. 324). If there is evidence to sup- port the verdict, an appellate court will not reverse because of opinion that the preponderance of evidence is against it. Rainbolt v. March, 52 T. 246; Green- leve v. Blum, 59 T. 124; Jacobs v. Hawkins, 63 T. 1; H. & T. C. Ry. Co. v. Larkin, 64 T. 454: H. & T. C. Ry. Co. v. Lee, 69 T. 556 (7 S. W. Rep. 324); H. & T. C. Ry. Co. v. Patton, 9 S. W. Rep. 175. Where the verdict is so repugnant to the evi- dence that the lower court ought to have set it aside, the appellate court will reverse. Letcher v. Morrison, 79 T. 240 (14 S. W. Rep. 1010). 3 Sweeney v. Jarvis, 6 T. 36. The duty of a trial judge is not confined to ad- vising the jury of the law of the case; but if the testimony does not sustain the finding of the jury, their verdict should be set aside and a new trial be granted. G., C. & S. F. Ry. Co. v. Wallen, 65 T. 568. A judgment will be reversed if it is clearly against the evidence. Bexar Bldg. & Loan Ass'n v. Newman, 25 S. W.. Rep. 461. JTBW TRIAL AND ARREST OF JUDGMENT. ' i .", appellate court is cautious in disturbing the verdict of a jurv, and will not do so unless in a very clear case, on the ground that the judge in the court below who heard the witness*- .and who, therefore, must be far more competent to judge of the weight iiich the evidence is entitled than the appellate court can be from the mere inspection of a statement of the evidence in the rec- ord is satisfied with it. 1 Where aver: onsidered on ap- . it is not necessary that it be supported by a preponderance of evidence. 2 Where the evidence is conflicting, there is no error in refusing to grant a new trial on the ground that the verdict is con- trary to the evidence. 1 In case of a conflict of test inn my. ordi- narily the action of the trial court upon the issues will be conclu- sive; 4 but it is the right and duty of an appellate court to set aside a verdict when it is against such a preponderance of the evidence as to be clearly wrong. 5 ?' 684. Verdict contrary to law. It is a general rule that, if the finding of the jury be clearly ist law, the verdict will be set aside and a new trial gra But if justice has been done, the court will not, against the equity of the case, disturb the verdict upon the ground of a technical jection.' Nor will a new trial be granted, where the case is f : 1 E.lrington v. Kiger, 4 T. 89; Briscoe v. Bronaugh, 1 T. 826; T. & P. Ry. Co. T. Casey, 52 T. us. *H. & T. C. Ry. Co. v. Shirley. ,M S. W. Rep. 809. E., L. & R. R. Ry. Co. v. Boon. 1 & W. Rep. 632. The finding of a jury upon facts when the evidence is conflicting is conclusive only when th<- \\ it nesses ving do BO in person before the jury. Then their manner of t> proper for scrutiny, and in observing this the jury possess an advantage which judges cannot have who hear the case on appeal. But when the evidence is contained in a written deposition, the reason of the rule which makes the de- cision of a jury in its finding on facts conclusive ceases. Thorn's Heirs v. Fra- feirs. 60 T. 260. "While an appellate court will not exercise so great a discretion as the trial judge whi> hf.-irs tin- vMiTuv ^hulJ in granting a n-w trial. y-t wh.-n the rec- ord shows that there is a deficiency of evidence to support the action, an inanifVst that the \. r In t is clearly contrary to the evidence, it has nev : wanting in power to reverse a judgment baaed on m .i.lt. 61 T. :>*:>; Zap,, v. Mi.-haelis, 58 T. 270; Ragland T. Wisrock. 61* T. 891. Wolf v. Brass, 72 T. 188 (12 S. W. Rep. 159); Bell v. Boyd, 76 T. 198 (18 a W. Rep. 23-Ji: Simmons Hardware Co. v. Kaufman. :t T. 181 (8 a W. Rep. 988} Mo. Pac. Ry. Co. v. Somers, 78 T. 489 (14 a W. Rep. 779). Spencer v. Millican, 31 T. 6" r, Vinson, 89 T. 125; Ellis r. Ponton. 88 T. 434. The appellate court will not reverse where the verdict is not clearly wrong, although a different verdict would have been more satisfactory because the amount of damages given may seem somewhat large. T. & P. Ry. Co. v. O'Donnell, 58 T. 27. A decree based upon an erroneous construction of the law of descent is fundamental, and ground for reversal McDougal T. Bradford, 80 T. 558 (16 S. W. Rep. 619). 644 NEW TRIAL AND ARREST OF JUDGMENT. [ 685. lous in amount, and attended with unimportant results, unless it be plain that the law has been violated and that injustice has been done. 1 A new trial will be granted where the verdict of the jury does not find the issues, but matter totally foreign; 2 or where it only finds a part of the issue; 3 or where it is uncertain or argu- mentative. 4 685. Excessive or inadequate damages. Where a verdict appears to be palpably and manifestly excessive, it is the duty of the court to set it aside and send the case to an- other jury ; and if it .be made to appear that the court erred in refusing a new trial, the judgment will be reversed; 5 and whilst courts should be slow to interfere with the verdict of a jury on a claim for damages when the measure of damages is indefinite, they should not hesitate to interfere when the error in the verdict is manifest. 6 In cases in which exemplary damages are awarded by law, excessive damages furnish no ground for a new trial, unless the damages be so flagrantly excessive as to warrant the conclusion that the jury were actuated by passion, partiality or prejudice. 7 New trials may be granted as well when the damages are mani- festly too small as when they are too large. 8 In an action for de- 1 Ogden v. Cox, 23 T. 22. An error in the allowance of interest from the 10th of the month instead of from the 16th, on a recovery of $40, is too trifling to be noticed (Mo. Pac. Ry. Co. v. Colquitt, 9 S. W. Rep. 603); where the excess of in- terest is considerable, the judgment will be reformed and rendered. Chapman v. Bolton, 25 S. W. Rep. 1001. See Schuster v. Frendenthal, 74 T. 53 (11 S. W. Rep. 1051). 2 Where the pleadings and evidence support the verdict the judgment will not be reversed merely because the basis upon which the jury estimated the amount may not correspond with the true issues, and because the judge has submitted to them an improper test or measure of liability whereby to regulate their finding, provided that, from the pleadings and evidence, the amount of the judgment rendered is clearly right. King v. Bremond, 25 T. 637. A judg- ment based on a verdict returned in response to an issue not presented by the pleadings will be reversed. Graham v. McCarty, 69 T. 323 (7 S. W. Rep. 342). 3 Kesler v. Zimmerschitvte, 1 T. 50; Ford v. Taggart, 4 T. 492; Hall v. York, 16 T. Ib; Brooke v. Moreland, 32 T. 380. The verdict and judgment should dispose of all the issues made in the pleadings and evidence. Michon v. Ayalla, 84 T. 685 (19 S. W. Rep. 878); Marsalis v. Patton, 83 T. 521 (18 S. W. Rep. 1070). 4 Mays v. Lewis, 4 T. 38; Harrell v. Babb, 19 T. 148; Bradshaw v. Mayfield, 24 T. 481; Smith v. Tucker, 25 T. 594. H. & G. N. Ry. Co. v. Randall, 50 T. 254; Thomas v. Chapman, 62 T. 193; Gatewood v. Laughlin, 2 App. C. C., 151. 6 Darcy v. Turner, 46 T. 30. Where the evidence is sufficient, if believed, to sustain a verdict, it is not error to refuse a new trial on the ground that the verdict is excessive. G., H. & S. A. Ry. Co. v. Johnson, 19 S. W. Rep. 867. 7 McGehee v. Shafer, 9 T. 20; L & G. N. Ry. Co. v. Stewart, 57 T. 166; H. & T. C. Ry. Co. v. Maddox, 2 U. C. 312: Barnett v. Hicks, 6 T. 352. 8 R. S. 1452. 685.] NEW TRIAL AND ABKE8T OP JUDOS! '!." ceit in the sale of a horse, shown by the evidence to have been rep- resented as worth $200, and actually worth nothing, a verdict for one cent dump's \\ill be set aside on appeal for inadequa* W hen no special damages have been alleged or proved, the ques- tion of the amount of damages is for the most part left t<> th- jury : and only in cases of actual damages clearly in excess of tli diet will new trials be granted. 1 The statute applies as well in ac- tions ex delicto as in those ex contract u* 1 Duncan v. Matula, 36 S. W. Rep. 638. If the verdict is for a smaller amount than under the evidence the party was entitled to, but that fact was not st-t up in a motion for a new trial, it will afford no ground for reversal on appeal (Jacobs v. Hawkins, 68 T. 1); so, also, where it is claimed that the verdict is ex- cessive. Seele v. Neuman. 1 S. W. Rep. 274. *Ledbetter v. Burns, 42 T. 508; Irwin v. Cook, 24 T. 244; Yarborough v. Tat, 14 T. 483. Allison v. G., C. & & F. Ry. Co., 29 S. W. Rep. 42& CHAPTER XLIY. BILL FOR A NEW TRIAL. 686. New trial may be granted after the term. 687. Nature of the proceeding. 688. Procedure. 689. Judgment on service by publica- tion. 686. New trial may be granted after the term. A new trial may be granted after the expiration of the term at which the judgment was rendered. The party must show sufficient matter to have entitled him to a new trial, if applied for during the term, and a sufficient legal excuse for not having then made his application. 1 If the application is granted, the enforcement of the judgment will be stayed by an injunction; and at the succeeding term of the court the verdict and judgment will be set aside and the case reinstated for trial. 2 As the application for a new trial, made after the term is passed, must disclose equitable grounds, sufficient in themselves to entitle a party to a new trial, the grant- ing of such new trial is as properly a matter of revision by the ap- pellate court as the granting of any other equitable relief. 3 An original action which has for its object the readjudication of matters determined in a former suit between the same parties, and is based on grounds which could properly have been urged in a motion for new trial, cannot be maintained, unless it is shown that 1 Gross v. McClaren, 8 T. 341; Spencer v. Kinnard, 12 T. 180; Cook v. Garza, 13 T. 431; Kitchen v. Crawford, 13 T. 516; Caperton v. Wanslow, 18 T. 125; Goss v. McClaren, 17 T. 107; Fisk v. Miller, 20 T. 572; Burnley v. Rice, 21 T. 171 ; Varde- man v. Edwards, 21 T. 737; Gregg v. Bankhead, 22 T. 245; Chambers v. Shaw, 23 T. 165; Power v. Gillespie, 27 T. 370; Plummer v. Power, 29 T. 6; Hatchett v. Conner, 30 T. 104; Davis v. Terry, 33 T. 426; Harris v. Haveman, 1 App. C. C., 802; Alexander v. San Antonio Lumber Co., 13 S. W. Rep. 1025. It seems clear, on principle and authority, that if it were still in a party's power to move for a new trial in the court that tried the cause, he could only be justified, if at all, in resorting to a separate suit, in the nature of a bill in equity, by showing that under the circumstances the remedy by motion was inadequate or uncertain. Bryorly v. Clark, 48 T. 345. The fact that a person is poor is no reason why he should not be held to the same rule of diligence in the prosecution of suits instituted by himself that is prescribed for other persons. Harn v. Phelps, 65 T. 592; McGloin v. McGloin, 70 T. 634 (8 S. W. Rep. 305). 2 Gross v. McClaren, 8 T. 341. 'Gross v. McClaren, 8 T. 341. A new trial will not be granted after the term, when an application for a new trial for the same cause has been made during the term and overruled, the party having an adequate remedy by appeal. Metzger v. Windier, 35 T. 378. "'] HILL FOB A KEW TRIAL. .,}7 the plaintitT was prev.-m.-d from making his motion during the ;it which tlie judgment sought to be set aside was rendered. If the m'tin was made and abandoned, that fact is fatal to a new- suit when brought for the same purpose. If the twial judj:: >n demurrer, and the party failed either to amend or appeal, beiuir n sufficient cause to prevent him from so doing, he can- uaintain an original action. 1 ?' 687. Nature of the proceeding. A bill to obtain a new trial after the close of the terra is of the nature of a proceeding in equity, and is, therefore, govern*- equitable principles. J The proceeding is n.t fav.uvd. but is al ied by emms of equity with extreme jral.usy. and the grounds uj>on which interference will be allowed are, confev- TOW and restricted. 3 It must appear: . 1 1 That the former judiri. -d by any negligence of him who seeks to set it aside, but that diligence was used to prevent it. cit That he had a good defense to the action, which he was prevented from making by fraud, ;'iit, or the acts of the opp) That there is good cause t<> believe that a different result will be obtained by a n :ie pleadings and issues of the former suit, and its result, must r forth distinctly and clearly. 4 The complainant must be able : peach the justice and equity of the verdict of which he com- plains;* but this ground is not alone sutlicient.* J Bonian v. Parker. 6* T. 4.3.1 (4 a W. Rep. 599). : ir.-n. 17 T. K7: Overton v. Blum, 50 T. 417; Hurnley v. Rice, 21 T. 17. .. Terry. I 'Johnson v. Templeton. t>o T * Johnson v. Templeton. 60 T. 23*: Ni<-li..ls v. Dil.r.-ll.Ol T.589; Harn v. Phelps. >-> T. .V.i-J: Mi -Murray v. Mi- Murray. 67 T. 665 (4 S. W. Hep. 3 ,-r v. Kin r,' T. 1*0: I'lummer v. Power. 29 T. rtl: Davis v. Terry. 88 T. 4.'- T. 171: Vardeman v. Ent a n-\v trial when the failure to have his caw properly pr*- ultxl from the negligence or mistakes of bis counsel BrownMm T. II s. \V Kep.966). The II !.>t.'iitioi. r. -in of a party whose suit is being tried, and who is thereby *> excused by the fact that his i to til.- the pr..|wr inoti-.n. an. 1 th.r 'iieaerrkje* tlier attorn. -y. The court, on pro|N-r i have assigned WJ). rrill v. H.,h.-rt-. > T. J- 1 I s. W r T, 1'ower, 89 T. 6. Ham v. Plu-lps. 6- T. 5WL BILL FOR A NEW TRIAL. [ 688. A court of equity will vacate a judgment or decree obtained by false testimony if it be shown that the false testimony was obtained through the procurement or connivance of the party to be bene- fited by it. The discovery after the term of a material fact, which being revealed would have resulted in a different judgment, and of which the injured party was unavoidably ignorant during the prog- ress of the cause, and which such party could not know by rea- sonable diligence, constitutes a basis for equitable relief. 1 688. Procedure. After a judgment is rendered, and the court has adjourned for the term, the cause has passed from the jurisdiction of the court,, and it will then require an original suit to set the judgment aside, which must be brought in the ordinary form, with service on the- opposite party. 2 Any order made by the court at a subsequent term on the simple motion of the party to set the judgment aside would be coram nonjudice, and consequently void. The remedy is by appeal or writ of error, or by a petition in the nature of a bill of review; or if the judgment is absolutely void, its enforcement may be perpetually enjoined. 3 In order that the injustice of the judgment should clearly appear, the nature and character of the original proceeding should be set out in the petition, and there should be enough of the contents or substance of the pleadings in_ the original suit disclosed to enable the court to determine with reasonable certainty what was really the issuable matter in contro- versy on which complainant relied to make out his defense. 4 In an action brought for the new trial of issues determined by & former judgment, which is based on the discovery of new evidence, the petition should set forth the new evidence verbatim. It should 1 McMurray v. McMurray, 67 T. 665 (4 S. W. Rep. 357). It is held in this case that relief may be obtained against a judgment in a divorce case, when pro- cured by the fraud of one of the parties, when the complaining party was pre- vented by such fraud from presenting the case fully at the time the decree was entered, if there was no vrant of diligence; and such relief may be obtained in a new suit brought to correct the wrong, though begun after the close of the term at which the decree was rendered. The doctrine announced in Green v.. Green, 2 Gray, 861, in regard to the exercise of such revisory powers in a suit brought after the close of the term at which the decree was entered, disapproved or qualified. In a suit to annul a decree dividing the community property, rendered in a divorce proceeding, on the ground that it had been procured by fraud and per- jury, the proceedings so far as they related to the divorce not being attacked, errors of the trial court touching matters settled by the granting of the divorce are immaterial. McMurray v. McMurray, 78 T. 584 (14 S. W. Rep. 895). 2 Chisholm v. Day, 1 App. C. C., 527; Marcus v. Hemphill, 1 App. C. C., 1024j. Ragsdale v. Green, 36 T. 193. Ragsdale v. Green, 36 T. 193. 4 Johnson v. Templeton, 60 T. 238. 689.] BILL FOB A NEW TRIAL, ' i be contained in the accompanying affidavits of ; sses who will testify, or the absence of the affidavits should be satisfact accounted for. Tin- petition should also state the faets constitut- ing diligence used to discover the testimony l>efore the former trial. A general statement of the character of the evidence discovered, and that due diligence was used to discover it sooner, will not be sufficient. 1 In the trial of a suit to open a decree on the ground that it was procured by perjury, it devolves upon the plaintiff to slx\v the testimony produced on the former trial, and to show that it was false. Until this is done the matter of the justice or injus- tice of the first judgment cannot be considered.* A proceeding by heirs must be instituted within two years after the youngest attains his majority.* The rule against tacking dis- abilities applies. 4 689. Judgment on service by publication. In cases in which judgment has been rendered on service of pro- cess by publication, where the defendant has not appeared in person or l>y an attorney of his own selection, a new trial may be gr.i by the court upon the application of the defendant for good cause shown, supported by affidavit, filed within two years after the dition of such judgment. A petition must be filed and service of process made upon the parties adversely interested in the judgment as in other cases. Process on such judgment will not be suspended,, unless the defendant or party applying therefor shall give 1- with two or more good and sufficient sureties, to be approved ly the clerk, in double the amount of the judgment, or value of the property adjudged, payable to the plaintiff in the judgment, condi- tioned that the party will prosecute his petition for new trial to effect, and will perform such judgment as may be rendered 1- court should its decision be against him. Where property has been sold under the judgment and execution before the process was sus- pended, the defendant, should he defeat the plaintiffs action, shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale.' Though the statute contains no saving clause in favor of def- ants laboring under disability, yet such defendants are protected l.y article 3:57:i. K. -vised Statutes, which, in effect, provides th;r period of disability shall not be deemed a portion of the time lim- i Anderson v. Sutherland, 59 T. 409. See Burnley v. Rioe, 21 T. 181; v. Dial, 10 T. 209. 'McMurray v. McMurray, 78 T. 584 (14 S. W. Rep. 896> McAnearv. K ( .|.. rson. 54 T. 230: Mun-h,~..n r. White, 54 T. 78. Bev t iv. A p|>. 349(258. W. Rep. 130>, R.S. 1875-1378. 50 BILL FOR A NEW TRIAL. [ 089. ited for the commencement of an action. 1 The rule forbidding the tacking of disabilities applies to an attack upon a voidable judgment by bill of review. 2 Where a non-resident has actual notice of a suit &nd fails to appear, no greater liberality is extended to him than to other negligent defendants. 3 A judgment in a suit by publication to foreclose an equitable lien on realty for taxes and insurance paid, against the unknown heirs of the deceased owner, wherein the judgment recited that the de- fendants had been duly cited by publication, in so far as it is a pro- ceeding in rein against the land, is valid, and could only be set aside by a bill of review filed for that purpose within two years. 4 The remedy by petition for review is additional to the remedy by writ of error. 5 The "good cause" required to be shown in an application under the statute necessitates the setting forth of facts which, if true, would call for the rendition of a different judgment. The allegations in the application are not to be accepted as true, and the new trial granted or refused alone upon their sufficiency or insufficiency, but they may be controverted and evidence heard as to their truth. The practice of submitting all the issues in one trial, now thoroughly established in this state in ordinary suits to vacate judgments, would be the most convenient and should be adopted. 6 1 Heirs of Brown v. Brown, 61 T. 45. 2 Best v. Nix, 6 Civ. App. 349 (25 S. W. Rep. 130). 3 Roller v. Ried, 24 S. W. Rep. 655. < Heidenheimer v. Loring, 6 Civ. App. 580 (26 S. W. Rep. 99). 5 Chrisman v. Miller, 15 T. 159: Doty v. Moore, 16 T. 591. For a petition held good on demurrer, by one who alleged that he was a resident of the state at the time suit was instituted against him and that he had a good defense, see Rich- ardson v. Ellett, 10 T. 190. The petition must show a meritorious defense, and .an excuse for not moving for a new trial in proper time. Kitchen v. Crawford, 13 T. 516; Snow v. Hawpe, 22 T. 168. In trespass to try title, the plaintiff claimed as purchaser at execution sale, under a judgment obtained by himself against the defendant. The defendant pleaded the want of actual notice of the proceedings under which the judgment was obtained (the judgment being rendered on service by publication); that the claim sued on was fraudulent and unjust (specifying in what), and prayed that the judgment be vacated. Held, that the parties being the same in both proceedings, the averments of the answer were sufficient to support it as a bill of review; and if properly supported by evidence, to authorize the reopening of the judgment, and the setting aside the sale of the land. Cundiff v. Teague, 46 T. 475. Keator v. Case, 31 S. W. Rep. 1099. CHAI'TKU XLV. RKMITTITUR AM) AMKXDMEXT OF JUDGMKNT. 690. Excess in verdict or judgment. 691. In vacation. 692. Release of damages after appeal 693. Mistakes in judgments. 694. Misrecitals in judgment* 693k Power over the judgment dur- ing the term. 098. Release of errors. ? 690. Excess in verdict or judgment. Any party in whose favor a verdict or a judgment has been ren- dered may in open court remit any part of stu i raent. The A///////'/'//- is noted on the docket and e the minutes, and execution issues for the balance only of the verd judgment after deducting the amount remitted. 1 The rule in this state is that where the damages assessed by the jury are excessive, and there are no fixed principles applicable by which the true measure of damages ma rmim-d, as in ao- I for torts, a / / will not cure the the cases thus holding rest upon the ground that an e.\o- diet shows that the jury did not pay due regard to the evidence^ but were actuated by passion or prejudice in coming to their con- clusion; and that to allow a /< mittitur of a part of the damage* would be to substitute the finding of the court for th;r A- here the damages are not excessive, and th- improper motives on the part of the jury, the rule loses its applica- and the court i_ r ives judgment for a sum which the jury hon- estly thought the plaintiff should recover; that is if they honestly found the amount of the verdict, they of course thought that the party might recover the amount left after a release of a part. 1 Where the verdict of a jury is required to fix the amour. damages, and they find an excessive amount, neither the coiir counsel can determine how much should be d ' t< mak- verdict a proper one, because the jury alone has the right to flx R. & 13.W. 1354 Hoskins v. Hilling. 1 Apj.. f. ('.. S 156; Hardeman v. Morgan, 48 T. 108; Thomas v. Woinack. 18 T. .>; Hughe* v. Brooks, 85 T. 87 4: O., C. A 8. F. Ry. Co. v. Coon, 60 T. 780 (7 a W. Repi 4W); Nunnully v. Taliaferro. 83 T. 286 (18 a W. Repi 14); Ma Pc. By. Ca T. Ptory. 8 Civ. App. 78; Donald v. Carpenter. H L & (J. X. Ry. To. v Wilkys*. 6H T. 617 (5 & W. Rep. 491). In Bean! v. M 4 App. C. i \vas )i,-l.l that a defendant wa properly allowed to remit all that was fouud in liis favor, win tli> T in the nature of damages or offMt. 652 REMITTITUR AND AMENDMENT OF JUDGMENT. [ 691, 692. such uncertain damages. But in such case, where the evidence is such as to enable the court to determine that the amount of the re- duced verdict was authorized by the evidence, the verdict will be- permitted to stand. 1 691. In vacation. A remittitur may be made in vacation by executing and filing with the clerk a release in writing, signed by the party or by his attorney of record, and attested by the clerk with the seal of his office. Such release constitutes a part of the record, and any exe- cution thereafter issued must be for the balance only of the judg- ment after deducting the amount remitted. 2 A remittitur under this article will meet to the extent of the release any complaint that the judgment is excessive. 3 692. Release of damages after appeal. Any party in whose favor a judgment has been rendered may make a release of any excess in the court of civil appeals ; and the court may then revise the judgment and enter such judgment as the court below ought to have entered if the release had been made before the appeal. 4 1 G., C. & S. F. Ry. Co. v. Redeker, 75 T. 310 (12 S. W. Rep. 855); Clifford v. Lee, 23 S. W. Rep. 843. An inadvertent error in the amount of the verdict, which is at once corrected by a remittitur, is no ground for reversal Cotter v. Parks, 80 T. 539 (16 S. W. Rep. 307). It was error in the charge to allow interest at ten per cent, in a case not on contract for such rate; but when the error was shown in motion for new trial, the plaintiff had the right, by remitting the excess over eight per cent., to cure the error. Kinkier v. Junica, 84 T. 116 (19 S. W. Rep. 359). Evidence was ad- mitted and the issue submitted to the jury as a basis for damages (among others) of the amount paid for medicines during recovery from an injury. This was not alleged in the pleadings. There was direct evidence that the injury and consequent suffering were great. The largest estimate of cost of medicines did not exceed $500. A remittitur of that sum cured the error in admitting the testimony and submitting the issue in absence of pleadings. G., H. & S. A. Ry. Co. v. Duelin, 86 T. 450 (25 S. W. Rep. 406). Plaintiff sued for a wrongful dis- charge under a contract of employment. Trial by jury was had and verdict for plaintiff. It was held that the court properly permitted him to remit the amount of $10, because it had accrued after the filing of the suit. Goldstein v. Cook, 22 S. W. Rep. 762. The error of an excessive verdict is not cured by a remittitur by counsel pending a motion for new trial entered upon intimation of the court's views though not upon any formal ruling. M., K. & T. Ry. Co. v. Perry, 8 Civ. App. 78 (27 S. W. Rep. 496). 2 R. S. 1355. Russell v. Nail, 79 T. 664 (15 S. W. Rep. 635). By reference to article 52, Pas- chal's Digest, it is held that the right to enter a remittitur exists without ac- tion by the court thereon or notice to the adverse party; and it seems that the- ruling might have been sustained by reference to the above article, although it differs in some respects from that cited. York v. Le Gierse, 1 App. C. C., 1328. < R. S. 1024. 'J.J Mil mil; \M iMBTDimn 01 . . >. . v : NT. '>.'". The following provision is also mail-- !.y an act passed in 1- "In all civil cases no\v pending, or that may hereafter be appealed to any court of civil appeals of this state, and such court shall IKJ of the opinion that the verdict ami judgment of the trial court is -.and for that reason only said cause should he reversed, then it shall be the duty of such court of civil appeals to in.i to the party in whose favor such judgment was rendered, or his attorneys of record, the amount of the excess of such verdict and jud-rment: ;md said court shall, at the same time, indicate to such party. inittitur shall be tiled, as herein provided, no evidence shall be allowed nor allusion made, in any subsequent trial, of the action of such court of civil appeals in reference to the amount of excess of such verdict/' 1 Under this statute the sugges- tion of a /v initfiinr is made by a court of civil appeals without motion by appellee, and the appellant is not entitled to notice that //// /V'// 1 will be entered.* A judgment /// T. 251. JSabine & E. T. Ry. Co. v. Hadnot, 67 T. 503 (4 S. W. Rep. 188). 2R 8.1356. Byars v. .Justin. ',' App. C. C., 687. Pipkin v. Kaufman, 02 T. 45. In this case there was judgment by default 56 EEMITTITUR AND AMENDMENT OF JUDGMENT. [ 693. On the adjournment of a term of court at which a final judgment has been rendered, the jurisdiction of the court over the case on the merits is exhausted. If there is an error in the judgment, and the court has no appellate revisory power over its final judgments, the error can only be corrected by some superior tribunal to which revisory power has been committed. "When a judgment is based on facts which the court is warranted in presuming, from the rec- ord, to exist, and upon the existence of which the jurisdiction of the court or the validity of the judgment depends, as, for instance, that an ostensible party to the proceeding was living, when he was, in fact, dead, such judgment, whether absolutely void or voidable, may be set aside and corrected on a writ of error coram nobis^y the court rendering it. But when the error is of law, though touch- ing a matter of fact appearing upon the record, and assignable as error, and is directly passed upon or affirmed by the court, it can, neither be reversed nor corrected on a writ of error coram nobis, nor by motion after the adjournment of the term at which it was rendered ; in such case relief can only be had, if at all, by appeal or writ of error to a superior and supervisory tribunal. 1 An application to correct a judgment by parol testimony on the ground of mistake, made twenty-six years after the alleged mistake occurred, with no allegation of ignorance, comes too late. Where it is sought to correct a mistake in a judgment by application in the court where it occurred, the application, by analogy to a bill of review, would be limited to two years from the time of the dis- covery of such mistake. 2 on a note, and it was assigned as error that the judgment was not supported by evidence of the production of the note. The statement of facts showed that the court acted on the assumption that the note was in court and filed in court with the clerk, through the representations made by the plaintiff's attorney when the judgment was rendered. There was nothing in the record calculated to rebut the inference that the note was there, and filed as stated, and that the judgment was entered up and the damages assessed by the clerk with the note before him. On this state of facts it was held that if any mistake was made the defendant ought to have moved the court to correct it during the term by filing a motion to set aside the judgment by default, such motion to be ac- companied by an affidavit of merits. 1 Milam Co. v. Robertson, 47 T. 222. The nature of a writ of error coram nobis is considered in Weaver v. Shaw, 5 T. 286. It is said to lie to correct errors of fact. The proper mode of proceeding is by petition to the court where the error occurred. By analogy to the period allowed for a bill of review the pe- tition should be filed within two years. A bill of review for matters of fact or errors of law apparent upon the face of the record will not lie. The remedy is by appeal or writ of error. Schlen- ning v. Duffy, 37 T. 527. '-' Williamson v. Wright, 1 U. C. 711, citing Milam Co. v. Robertson, 47 T. 235; Weaver v. Shaw, 5 T. 289; Connolly v. Hammond, 51 T. 647; Smith v. Fly. 24 T. 3.V->; Kuhlman v. Baker, 50 T. 636; Munson v. Hallowell, 26 T. 475; Alston v. Richardson, 51 T. 6; 2 Story, Eq. Jur., 1521a. 4.] REMITTITUR AND AMENDMENT OF JUDGMENT. The omission of the clerk to enter a judgment, the character of which is apparent from the entry made by the judge on his docket, cannot prejudice the rights of one who obtained it. The correction may le m;nl on motion of a party, made in answer td a motion by the opposite party to reinstate the cause, when all the parties are brought before the court. 1 Articles 135ft and 1357 of the Revised Statutes, being articl* and 51 of Paschal's Digest, are cited indiscriminately by the courts in some cases, and it has been held that under either article a cor- >n after the term can only be made by matter appearing of record. 1 694. Misrecitals in judgment corrected. AVhere, in the record of any judgment or decree of any court, there shall be any mistake, miscalculation or misrecital of any sum or sums of money, or of any name or names, and there shall be among the records of the cause any verdict or instrument of writing whereby such judgment or decree may be safely amended, it is made the duty of the court in which the judgment or decree was rendered, and the judge thereof in vacation, on application of either party, to amend such judgment or decree thereby, according to the truth and justice of the case; but the opposite party must have reasonable notice of the application for the amendment. The judge making such correction in vacation must embody the same in a judgment, and certify thereto, and deliver the same to the clerk, who must enter it in the minutes. Such judgment constitutes a part of the record of the cause, and any execution thereafter issued must conform to the judgment as corrected. 1 Reasonable notice is required in all cases. 4 Paschal's Digest pro- vided for reasonable notice, and it was held that notice of four days was sufficient on an application to correct a miscalculation of inter- est* A variance in the judgment as to the names of the defendants may be amended by the lower court after an appeal has been JKT- fected. This being the only error, the judgment as amended will be affirmed. 1 A judgment may be amended, at a term of court held aftrr the one at which the judgment entry was made, by inserting therein the name of one of the parties to the cause, omitted through Whittaker v. Gee, 63 T. 435. Ma Pac. Ry. Ox v. Haynes, 82 T. 448, 456 (18 a W. Rep. 605); Russell v. Mil- ler, 40 T. 495. R,a 1357, 1358. Byars v. Justin, 2 Apjx G C, 687; Ramsey v. McCauley, 9 T. 106; McNairy v. Castleberry, 6 T. 28k P. D., art. 51; Coffee v. Black, 60 T. 117. Hurlbut v. Lang, 29 a W. Rejn 11 09. 43 658 REMITTITUR AND AMENDMENT OF JUDGMENT. [ 694. mistake, when ttie notes upon the docket of the presiding judge can furnish data by which to make the correction. Such amendment may be made after the dismissal of an appeal, based on the defect in the judgment. 1 Correction of a judgment after the term can only be made under the above statute by matter appearing in the record; also where the amendment is made under article 1356 of the Revised Statutes. 2 The amendment may extend to entering judgment against a party not affected by the original entry, when authorized by the verdict and former proceedings in the case. 3 i Whittaker v. Gee, 63 T. 435. In a suit by George J. McCauley v. John Ram- sey, the judgment was entitled J. H. McCauley v. John Ramsey. After the de- fendant had sued out a writ of error, the error was. on motion of the plaintiff, after notice to the defendant's attorney, corrected by order of the court, by the insertion of the name of the plaintiff, which was sufficiently sllown by the peti- tion, citation, etc. Ramsey v. McCauley, 9 T. 106. -' Mo. Pac. Ry. Co. v. Haynes, 82 T. 448 (18 S. W. Rep. 605). This suit was brought for the value of eighty-seven bales of cotton burned on cars of the railway com- pany. The case was tried by the judge. The bills of lading executed by de- fendant were attached to the petition. One was for fifty-one bales, one for thirty bales, and the other for six bales. The judge rendered his decision for plaintiffs for the eighty-seven bales burned, valuing it at nine and one-half cents a pound, with interest. The judge in making up the amount of value, by over- sight omitted the six bales. The railway company appealed. After appeal and at the next term the plaintiffs by motion obtained an order amending the judg- ment, adding the value of the six bales. An ineffectual effort was made to have the amended judgment recognized by the supreme court in the appeal. The judgment as originally entered was affirmed. The railway company then paid the judgment so affirmed. The plaintiffs obtained execution for the amount of the six bales added by the amendment. Injunction was applied for by the de- fendant, and on hearing it was dissolved. The oversight of the court was not of that character that could be corrected after the term by motion under the statute. It was a judicial mistake, and could be corrected only by motion for a new trial or appeal. What the trial judge remembered as explanatory of the error could not be made available on the motion to amend. The bill of lading attached to the petition for the six bales omitted was not a part of the record from which amendment could be made. In Hinzie v. Kempner, 82 T. 617 (18 S. W. Rep. 659), the court properly refused at a subsequent term to alter the judgment so as to apply to the south half of a described one hundred-acre tract instead of the north half. Neither fraud nor mistake was shown, nor was delay explained. The mistake, if it was one, was judicial and not clerical. 3 Russell v. Miller, 40 T. 495. In an action upon a note, the jury rendered a verdict for plaintiff for $1,650 principal, and $25.70 interest, upon which judg- ment was rendered against the defendant for sixteen hundred and fifty dol- lars principal, and twenty-five dollars and seventy cents interest. On the 17th of February the defendant sued out a writ of error. On the 9th of June following, on motion of counsel for the plaintiff below, the court being satis- fled, as stated in the entry, "from an inspection of the verdict, and the note upon which the suit was instituted, that there was an error and miscalculation in this that the said verdict and judgment in said cause, instead of being for sixteen hundred and fifty dollars principal, and twenty-five dollars and seventy cents interest, should have baen for seventeen hundred and twenty-six dollars '4-.] MM nrrn AND \v r <>K .in- The amendment may l>o made at a succeeding 1 term of tin: rurt. 1 after the intervention of a term or terms succeeding the one at which the judgment was rendered.- Where a judgment was entered for a lees sum than was shown to be due on the notes sued on, it was proper, on due notice, to correct the error after the end of the term, and after an appeal was perfected, the application having been made before the appeal was perfected.' An amendment of a judgment on the last day of the term, but which is of a character authri/.e-l ly statute to be made at any time, is not, when the cast- was lir.-t submitted for determination by the judge on the law and the facts more than three days before the close of the term, violative of rule ''. for the government of district courts, which requires jitd.irments in such cases to be entered two days before the end of the term. 1 The remedy by an amendment of the judgment as allowed by statute, or by a proceeding in the nature of a bill of review, is to correct errors of fact; as, where judgment has been rendered with- out service, or when one of the parties was dead, etc., or where there is a mistake, miscalculation, or misrecital of any sum of money, or of any name. The remedy for errors of law, apparent upon the and forty-nine cents principal, and one hundred and one dollars and twenty- seven cents interest," it was ordered that the judgment should be corrected and rendered for the latter amount It is said that the error in amending the V..T- dict and judgment by the note and other papers in the cause, though manitV-t, is not assigned for error, and therefore is not subject to revision. McL'onkey v. Henderson, 24 T. 212. The court has no power to change the verdict of a jury so as to make it conform to what might be supposed to be the intention of the jury. If the verdict had contained the basis of the calculation made l>y tin- jury, or had afforded data by which their intention could be certainly tained, the mistake, if any, in their calculation, might have been corrected, and the amendment would have been proper. But having return*'. 1 a v.-r.liet for the plaintiff for a sum certain, after it had been received and recorded, the court had no power over it to change it, and the only remedy was by a nc\v trial. Messner v. Hutch ins. 1? T. ~i97. When there is a judgment by default, the error can be corrected by the jpetition and not\. McNairy v. Castleberry, 6 T. ><'>: Swift v. Faris, 11 T. ia Swift v. Faris, 11 T. 18; Ramsey v. McCauley, 9 T. 100. 2 Russell v. Miller, 40 T. 495. De Hymel v. Mortgage Co.. 80 T. 493 (10 S. W. Rep. 311). If the amount of recovery stated in figures in a judgment differs from that stattd in writing, hut the recitals in the judgment itself show the former to U> the true amount. the error is not sufficient cause for the reversal of the judgment. Ca\ of Houston, 63 T. 619. A judgment rendered recited its date June 14, 1874. The suit was instituted March ,'!(, 1875. The judgment also recited that due - tat ion wa- had upon unknown heirs of D. S. The judgment appeared in the proceedings of the court for June 14, 1876. It was manifestly an error that the date !: | a p, in the judgment. It was competent to read the entry preceding the judgment tow the elerii-a! mi-take in it. Sloan v. Thorn) App. 41'.' YV. Rep. 613). . Johnson, 69 T. 4-34 (6 S. W. Rep. 798). CGO REMITTITUR AND AMENDMENT OF JUDGMENT. [ 695. face of the record, is by appeal or writ of error. 1 The power to amend cannot be exercised so as to deprive a party of any substan- tial rights accruing to him after the trial. 2 696. Power over the judgment during the term. The court has full control of its judgments until the close of the term, and may of its own motion set aside or reform the same. 3 Until the adjournment of the term a court has full control over its judgments, and may, upon its own motion, set aside or reform the same, or grant a new trial, according to the justice of the case, upon the merits as well as for matters of form. 4 But the court cannot, after a judgment has been rendered on the verdict of a jury, substi- tute it with an entirely different one in substance; 5 especially after the close of the term, and after an appeal has been taken. 6 When a final judgment has been rendered in a case, and the term of court has expired, the jurisdiction of the court over the subject- matter of litigation is gone, and it has no power to set aside the judgment and hear the case anew for the purpose of correcting er- rors committed on the former trial. The power to revise and cor- rect the judgment lies only in the appellate courts. After it has lost jurisdiction by a final judgment, the power of a court to correct its records does not cease, but may be exercised even when the case has been appealed. 7 A court has no authority to set aside a judg- ment of a former term and render a second judgment in the cause. When the judgment of a court is entered, and its minutes authenti- cated as a record and the term closed, the court has no further power over the judgment for the purpose of revision or modifica- tion on the merits. 8 But the power to alter or reform continues 1 Yturri v. McLeod, 26 T. 84; Lewis v. San Antonio, 26 T. 316; Seguin v. Mav- erick, 24 T. 526. 2 Russell v. Miller, 40 T. 495. 3 Hooker v. Williamson, 60 T. 524 In this case the trial was by the court, and the judgment was properly reformed, on motion, by increasing the amount of the recovery. See, also, Barton v. American Nat. Bank, 8 Civ. App. 223 (29 8. W. Rep. 210); Wood v. Wheeler, 7 T. 13. 4 Mo. Pac. Ry. Co. v. Houston Flour Mill Co., 2 App. C. C., 572; Bryorly v. Clark, 48 T. 345. The perfecting of an appeal during the term (R. S. 1383, 1887) does not deprive the court of jurisdiction. Blum v. Wettermark, 58 T. 125; Garza v. Baker, 58 T. 483. March v. Williams, 3 App. C. C., 377. 6 Smith v. Fox, 4 App. C. C., 63. 7 Imlay v. Brewster, 3 Civ. App. 103 (22 S. W. Rep. 226). 8 Byars v. Justin, 2 App. C. C., 688; Chambers v. Hodges, 3 T. 517; Trammell v. Trammell, 25 T. Sup. 261; Gallagher v. Finlay, 2 App. C. C., 623; Browns- ville v. Basse, 48 T. 441. Where the citation was insufficient to support a judg- ment by default, the court had no po\ver to set aside the judgment at a subse- quent term and order a new citation. Brewster v. Norfleet, 22 S. W. Rep. 226. Where an appeal has been perfected, after the expiration of the term at which the judgment was rendered, the jurisdiction of the appellate court attaches, 695.] REMITTITVB AXD AMENDMENT OF JUDGMENT. hiring the term, and if, after judgment against several, it shall ap- pear that one of the defendants had not been served with pr< and that as to him jurisdiction had not attached, the judgment may be reformed so as to relieve him from its operation, and continue in force against the othei* defendants. If the defendant not prop- erly before the court is a partner with a defendant who was prop-rly served, and the suit is on a claim due from the partnership, it is proper to so reform the judgment as to exempt from individual liability the partner not served, and render the judgment against, the partnership, and the members thereof individually on whom service was obtained. 1 Names may be corrected; so it is proper before the end of the term to permit an amendment so as to describe correctly the part- nership against which the judgment was rendered. 2 If judgments or executions are defective in particulars that may affect the title to property sold under them, it is too late after salt s have been made to amend either so as to have the effect of validat- ing such sales. It would be inequitable to remove defects existing in a judgment and process under it at the instance of a purci after a sale which by reason of such defects may have been for an inadequate sum. Where proceedings are amended it should be done before a sale has been made. A defect in substance could not be supplied after sale by amendment so as to validate such sale. 1 and the lower court has no power to change the judgment in the awarding of cost*. Gallagher v. Finlay, 3 App. C. C., 62a 1 Henderson v. Banks, 70 T. 398 (7 & W. Rep. 815). An order granting a n. \v trial may be reconsidered by the court and set aside during the term without notice to the party in whose favor the order was made. Nowlin v. Hughes, 3 App. C. C., 3ia See, also, Seaton v. Brooking, 1 App.C. C., 1041. Such onl.-r could not be set aside after the close of the term. Puc!:ett v. Reed, 87 T. 308. By consent, the court after judgment may reform the judgment and permit plaintiffs to dismiss or remit judgment against one or more of several dttVn correct it in the lower court. It was held that the correction could have been made, but that the appellate court had no power to make it. Green v. Bro\\ n, .; API,, a a, ? lea Kay v. Bank, 75 T. 181 (12 a W. Rep. 529). A judgment was rendered again>t 11. W. Van Hagen (the defendant's name being Hiram Watkins Van Hagen). An alias execution was issued against Win. Van Hagen. Under this execution a town lot was seized and sold, the plaintiffs in execution being purchasers. Subsequent to the sale a motion was filed to correct the execution so as to mak> it conform to the judgment. Without notice an orderwaa made to correct tho i-.ii. It was held that the sale of Wm. Van Hagen's interest, or the sale under the execution against him. y the payee for a continuance was li. Id nut binding on the bank. Ami. -rson v. ( 'iti/.ens' Nat. Bank. 5 S. W. Rep. A waiver of not ice and agreement that judgment may be entered at a - fied term will U- upheld, though the petition was not liled at the time the agree- iut nt was made. Myers v. Brannon, 19 S. W. Rep. 1091. An agreement by independent executors against whom suit was brought to waive right to a or writ of error upon the plaintiff's agreement to stay e.\e<-uti<>n and order of ;i the judgment obtained will bind the |iartirs. .John-mi v. Halle\. A pp. W. ll.-p. T 'Delk v. Pinifliard, 04 T. 360; Punchard v. Delk, 55 T. 304. In an agreement 004 AGREEMENTS OF PARTIES. [ 698, 699. 698. Must be in writing or entered of reoord. No agreement between attorneys or parties touching any suit pending will be enforced, unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. 1 Although the court is not required to enforce an oral agreement, still it by no means follows that the court commits any error of which a party to such agreement can complain, by the exercise of its discretionary powers, so as to pre- vent the obtaining of an unfair advantage by the violation of such agreement. 2 The action of the trial judge, after hearing statements of counsel for parties litigant in regard to a parol agreement to waive filing of title deeds and notice thereof, in enforcing such agreement, con- stitutes no ground for a reversal of judgment. 8 699. Agreements as to the evidence. Under an agreement to admit all evidence that would throw light on the transaction in suit, it is not error to permit a party to prove the contents of a written instrument without accounting for the loss of such instrument. 4 An agreement to admit the execution of a deed and waive proof of the same admits the authority of the attorney in fact who executed the deed. 5 to continue a suit to abide the result of another suit, it was agreed that judg- ment in the dependent suit should go according to the recovery in the suit to be tried, and it was held: (1) That a trial of the test case on the merits, and not a judgment by consent or a plea in abatement, was intended. (2) That the right to have judgment rendered in the dependent suit resulted from the fact of a re- covery in the first suit, and not from the grounds of recovery a recovery on a plea of limitation would be sufficient (2) The right to have judgment rendered in the dependent suit could be enforced, though the judgment in the case tried may have been rendered on an issue not common to both suits. Heirs of Wat- rous v. McKie, 54 T. 65. 1 Rule 47. 2 Williams v. Ruling, 43 T. 113; Findley v. Love, 2 App. C. C., 736. 3 Jenkins v. Adams, 71 T. 1 (8 S. W. Rep. 603). An oral agreement of counsel in a suit made and acted on at ona term, though afterwards written in a state- ment of facts preparatory to perfecting an appeal, cannot be used on a second trial as evidence to establish a fact confessed by it, when notice of its with- drawal is given by the party objecting before the trial begins. Not being in writing as required by a rule of court, it could not be enforced. Wootters v. Kauffman, 67 T. 488 (3 S. W. Rep. 465). A party to an action for the trial of the right of property, whose attorney after entering an appearance had abandoned the case before pleading, received from the attorney of the opposing party the promise that, under the circum- stances, he would take no action in the case without notifying him. He was notified, but the notice was so short that he could not reach the court-house in time to pi-event a judgment against him. It was held that the judgment by de- fault should have been set aside, and this though it was taken on the applica- tion of the partner of the attorney who had promised to give notice. Field v. Fowler, 62 T. 65. 4 Findley v. Love, 2 App. C. C., 736, Stripplemau v, Clark, 11 T. 296, 70".] AGKEEMEXTS OF PARTIES. 005 An agreement waiving notice of filing title papers, and of show- inir for introducing copies by showing loss of originals, dot- obviate objections to deeds not duly registered or otherwise prop- erly prmvtion through a mistake hud yielded up a defense affecting the substance of the litigation. No injury t<> tl e -e party appearing, the action of the court refusing to set aside the agree- 666 AGREEMENTS O* PARTIES. [ T( 0. "When a written agreement is made and filed as to the facts, for the purpose of facilitating a trial, it cannot be set aside and disre- garded on a mere motion setting up a mistake in its execution, and sustained by ex parte affidavits. An issue should be made up and tried, and the agreement sustained or set aside in accordance with the facts found. 1 A written agreement admitting the truth of certain facts and dis- pensing with the necessity of proof thereof, entered into between the parties to a suit, has no particular sanctity arising from the fact that it was made in the course of a judicial proceeding. It is still a contract that may be set aside, if entered into under a mistake of fact; and the proceeding to set it aside is summary, and is addressed, in a large measure, to the discretion of the trial court. 2 Where an agreement is ambiguous, and the parties disagree as to its meaning, it may be withdrawn by either party by permission of the court. 3 ment was error, and under such circumstances a ground for reversal. See, also, McClure v. Sheek, 68 T. 426 (4 S. W. Rep. 552). 1 Morgan v. Davenport, 60 T. 230. Motion to set aside an agreement made by attorneys was supported by the affidavit of the party making the motion. It was overruled. The record did not show that the motion was controverted or demurred to, nor that any testimony was introduced upon the hearing. The application supported by the ex parte affidavit of the party was held sufficient to warrant the court in acting upon the allegations so verified without further testimony. Paschall v. Penry, 82 T. 673 (18 S. W. Rep. 154). 2 Beaumont Pasture Co. v. Preston, 65 T. 44 3 Botts v. Martin, 44 T. 91. Counsel made an agreement by which judgment of foreclosure should be entered upon a vendor's lien note sued upon. The plaintiff was an indorsee of the note and alleged that he was a bonafide holder before maturity. After the agreement defendant ascertained the fact that plaintiff held the note for the original payee. Application was at once made to s?t aside the agreement and permit defense to be filed, the facts showing a fail- ure in the title to one-half the land, etc.. and it was held error to refuse to set aside the agreement and allow the defense upon the merits. Paschall v. Penry, 82 T. 673 (18 S. W. Rep. 154). CHAPTER XLVII. OF TRIAL BY AN AUDITOR. 701. Auditor appointed, when. ice of the hearing. Manner of conducting the trial. 704 Forms of proceeding and rules of evidence. 705. Report of auditor. 706. Report in evidence; exceptions. 701. Auditor appointed, when. Whenever, in any su't, it appears that an investigation of ac- counts or examination of vouchers is necessary for the purposes of justice between the parties, the court "shall appoint an auditor or auditors to state the accounts between the parties and to make re- port thereof to the court as soon as may be. The court allows a liable compensation to the auditor, which is taxed in the bill sts. 1 The appointment of an auditor is so entirely within the discretion of the trial court that a refusal to make an appointment would only 1*? revised on appeal, if at all, when a gross abuse of discre- tion is shown.- The power to appoint auditors is expressly iriven Ity statute, without limitation as to the character of suits, when the investigation of accounts or examination of vouchers becomes nec- -.sary.* An auditor should be appointed in a suit involving un- usual matters of account, if prayed for. 4 But it is held that the statute leaves the appointment and the action under it entirely in the disci rtion of the court. Where the trial court, for reasons satisfactory to itself, rejects the report of an auditor, and sub- mits the whole case to a jury under proper instructions, the ap- 1R. S. HIM. 1497. - H.. K. \ W. T. Ry. Co. v. Snelling, 59 T. 116. -ht v. 1'ate. i a W. Rep. 661. * Whitaker v. Bledsoe, 34 T. 401: Bailey v. Knight, 4 App. C. C., g 275; Rogers v. Nichols. '(> T. 7 lit. In a suit to recover upon an account stated. : it y foi the appointment of an auditor: lut tin- action of the court will not be i.-\i--d \\\\< iv tli'- rights of appellant are not affected. Imis v. Stuart. A . Hep. ln>. When tlu- suit involves a settlement of mercantile account*- running through a long jK-riod of time, and the transactions of a nu rcantili- business conducted first I iy tin- t'-tator any liis executor, against \\hos.- t-tat.- a n-cov.-ry issou-ht. for an alleged maladministration of tlu- asset-,, the ap|M>intment of an auditor is not only proper but necessary. The duties of th- auditor, wli.-n ai>|x>inted. should as in-arly as (xissible bt.> contined to a statement of the account, and as far as practicable ili^Mi;---! i|ii."-tions of fact should not be referred to him. Dwyer v. Kalt y- r. r,- T. :,-,j ,:, s. \V. liep. 73). 668 " TRIAL BY AN AUDITOK. [ 702-704. pellate court will not revise its action in excluding the report, such action being no more than the concession of the right of trial by jury. 1 702. Notice of the hearing. One or more auditors may be appointed, who should proceed to hear the cause before the next succeeding term of the court. The auditor should appoint the day and place for the parties to attend him on the matter of the reference, by a memorandum in writing signed by him. 2 It is the duty of the party obtaining the reference, or of the plaintiff, when the reference is made by the court without motion, to obtain from the auditor the order, and serve it upon the opposite party or his attorney, a reasonable time before the day designated for the hearing. In the absence of any rule of court, it seems the statutory rule for the service of an ordinary citation might be adopted. 3 7O3. Manner of conducting the trial, At the time and place designated in the order, the auditor may proceed with the reference ; if either party fails to attend, he may proceed in his absence, upon an affidavit being filed that the notice has been duly served. 4 He may postpone the hearing upon the application of either party for good cause shown, 5 and may also adjourn from day to day, until the matter is finally disposed of. 6 If more than one auditor is appointed, a majority must be present at the hearing, and can unite in making report; but it must appear that sufficient notice has been given of the meeting to those who failed to attend. 7 704. Forms of proceeding and rules of evidence. The same forms of proceeding are to be pursued, and the same rules of evidence are to be observed, on the hearing of a cause be- 1 Robson v. Jones, 33 T. 324, An application for an auditor is properly refused, when made after the trial has commenced, and after the suit has been pending over two years, and where it is unsupported by any answer or evidence show- ing the necessity therefor, Hunt v. Reilly, 50 T. 99. The question of how much of an estate is community property seems not to be a proper one for an auditor. Ellison v. Keese, 25 T. Sup. 83. The appointment of an auditor, by the consent of the defendant, does not have the effect of an admission of the cause of action to any extent; it does not estop defendant from establishing his defense, or relieve the plaintiff from the necessity of establishing his cause of action, Hughes v. Christy, 26 T, 230. 22Dan.Ch. Pr. 1352. 3 Parsons v. Able, 19 T. 447. *2 Dan. Ch. Pr. 1354; Parsons v. Able, 19 T. 447. 5 Forbes v. Frary, 2 John, Cas, 224; Cleaveland v, Hunter, 1 Wend, 104, 6 2 Dan. Ch. Pr. 1354. 7 Kyd on Awards, 106, 5.] TRIAL BY AN AUDITOR. 669 an auditor, as on a trial before a jury. 1 Objections to the julmissibility of evidence are taken in the same manner; and a failure to except to the ruling of the auditor, at the proper time, will have the same effect as on a trial before a jury. 2 No author- ity is given by the statute to the auditor to compel the attendance of witnesses; but, as the power to examine witnesses is incidental to his duties, it seems that his authority would be co-extensive with that of a commissioner to take testimony, and he may therefore issue a subpoena for a witness, and compel him to attend and testify, in like manner as the district court can do. 3 705. Report of auditor. The report of the auditor must be verified by his affidavit, stat- ing that he has examined carefully the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come to bis knowledge. 4 Where the matter submitted to an auditor embraces the accounts of both plaintiff and defendant as set forth in the pleadings, it is his duty to endeavor to arrive at a just solution and to report his conclusions to the court. In doing this he must hear and determine the evidence as a jury would. If a dispute arises as to the law applicable to any partic- ular, and he has not been instructed by the court upon it, it is not improper for him to state what he supposes the law to be and his conclusion of fact upon the hypothesis that his opinion of the law is correct. If correct, his findings of fact are conclusive, if not ex- cepted to; but if not correct, they should be disregarded by the court. 5 It is not necessary for the auditor to take down and report the evidence on which his conclusions are founded. 6 The report should contain a statement of the several items of debt and credit allowed, and not merely the total sums; but where no objection is made on this ground, and the report is good against the exceptions that are urged, it is conclusive of the matters within its scope, and renders immaterial alleged errors in admitting and rejecting evidence bearing on these matters. 7 A report with refer- ence to matters not properly arising under the pleadings of the parties should to that extent be excluded from the consideration of the jury. 8 1 Evesy v. Merwin, 8 Cow. 860. 2 Copeland v. Crane, Pick. 73 { Byington v. Wood, 1 Paige, 45; Lewis v. Lewis, 1 Ala R S. 2282, 2283, R S. 149--). Richie v. Levy. 69 T. 133 (6 S. W. Rep. 685), 6 Whitehead v. Perie, 15 T. ?: Richie v. Levy, 69 T. 133 (6 S, W. Rep, 685), Cameron v. Bank, 4 Civ. App. 309 (28 a W. Rep, 834> 'Barkley v. Tarrant County, 53 T, 251. C70 TRIAL BY AN AUDITOR. [ TOrt. The account made up by the auditor should be so reported that the undisputed items on either side may be eliminated from the case, and the issue thereby narrowed to the items actually in dis- pute. 1 It seems to be the duty of the auditor to state the items of the account; and for a failure to do so the report may be set aside on motion. 2 706. Report in evidence; exceptions. The report of the auditor may be admitted in evidence, but may be contradicted by evidence from either party, where exceptions to such report, or any items thereof, shall have been filed before the trial. 1 "Where the report does not conform to the law, in form or sub- stance, and the objection is apparent on inspection of the report itself, the party aggrieved should move to set it aside; if regular and in due form, the party wishing to impeach its accuracy should except, specifically setting forth wherein the inaccuracy consists; and to the matters thus excepted to the parties should be required to confine then- evidence on the trial. 4 The party who desires to contest an item must do so by specific exceptions, filed in time, to the item of debt or credit which he claims has been incorrectly in- cluded or excluded from the amount as reported, or which he claims to be incorrect as to amount. 5 The report is conclusive only as to the items not excepted to. It eliminates from the contest the un- disputed items on either side, and narrows the issue to a point act- ually in dispute.' Objections and exceptions to the correctness of items serve the purpose of admitting evidence to contradict the re- Kempner v. Galveston Co., 76 T. 450 (13 S. W. Rep. 460; Dwyer v. Kalteyer, 68 T. 554 (5 S. W. Rep. 75). Suit was brought for a balance due for running a hotel, and for refusal to renew the lease. The accounts were referred to an auditor, who made a report The report was unchallenged by objection from either party. It was not addressed to the court, and did not appear to be a formal report, but it did show a statement of the receipts and disbursements of the hotel, and a balance against receipts, and had the file-mark of the clerk of the court, and was identified as the auditor's report It was held conclusive not only as to matters included therein, but also to such as had been excluded, and it was error to submit the account between the parties to the jury. The report having been admitted in evidence, and plaintiff's pleadings not showing that any mistake had been made in it, and setting up no items independent of the report, it was error to permit a witness to testify that he had examined memoranda furnished by plaintiffs, and that defendant owed them the several sums stated thereia Aransas Pass Land Co. v. Hanaford, 4 Civ. App. 286 (23 S. W. Rep. 566). 2 Whitehead v. Perie, 15 T. 7. 3 R. a 1496. * Whitehead v. Perie, 15 T. 7. 5 Richie v. Levy, 69 T. 133 (6 S. W. Rep. 68-:). Bupp v. O'Connor, 1 Civ. App. 328 (21 S. W. Rep. 619); Kempner v. Galves- ton Co., 76 T. 450 (13 S. W. Rep. 4GO); Whitehead v. Perie, 15 T. 7. '">.] ' TEIAL BY AN AUDITOR. '71 port in those ]>articulars; they need not be treated as ple and read as such on the presentation of the case. 1 A party has the right to object specifically to any item allowed <>r disallowed, or to any conclusion arrived at by the auditor, and have the verdict of a jury thereon in response to evidence adduced on the trial of the case. In the absence of such objections it is not error for the court to charge that the report is conclusive, nor does such practice contravene the right of the party to a trial by jury. 2 When there are no valid objections, the report, or so much thereof sustained on exception, is admitted in evidence against objec- tions made by a party.* Kendall v. Hackworth, 88 T. 499 (18 a W. Rep. 104). On the coming in of an auditor's report, the defendant gave plaintiff notice to the effect that he would, on the trial, offer evidence to attack and defeat so many items of the report as were allowed in favor of plaintiff, and so much of the same as li V- 'll'iNS. 673 of amendments of a return of process may be served by any person who may be a competent witness. 1 Notice of a sum- mary proceeding against a sheriff and his sureties may be served by an officer, or by a private person who makes affidavit of the ervi 09. Motions defined. A motion is an occasional application to the court by the parties, in onlrr to obtain some rule or order of the court, which becomes necessary in the progress of a cause, or to obtain some relief to which a party is entitled, without the necessity of instituting suit tberefor. Motions may relate to suits pending, or may not be con- nected with any suit.* A motion of an attorney, as the friend of the court, cannot be I as the exception of the parties; the court may do only what, if properly informed, it would do without such motion. 4 ? 710. Motion docket; filing motions. The clerk is required to keep a motion docket, in which he shall enter every motion filed in his court, the number of the suit in which it is made, if it relates to a suit pending, the names of the parties and their attorneys, with a brief statement of the nature of the motion. 5 Rule 21 requires that the date of tiling and its num- ber be entered in the docket. Either party may require that notice of objections to the form T. 680. >R 160. Moseby v. Burrow, 52 T. 896; State v. Jefferson Iron Co., 60 T. 812; Jones v. City ..f J, ilVr-.n, 60 T. 576 (1 a W. Rep. 903). *Rs ik- -Jl. See Rule 79. *Rul iM'.n v. Jones. 4 T. 17<>. * Hammock v. May. :^ T. 196. A paper is considered filed when the clerk has ti the day on which it was filed, ami signed his name officially thereto. R. S. 14 in. An objt-ctii.ii t<> a paper for want of a file-mark, which has obviously been placed in the cuto.lv of the clerk and acted upon by the 674 NOTICES AND MOTIONS. [ 711. 711. Notice of motioup. Notice of motions in a suit pending is given by the filing of the motion and entry thereof in the motion docket during the term. 1 "Where a motion does not relate to a pending suit, and where the time of service is not elsewhere prescribed, the adverse party is entitled to three days' notice of the motion. 2 Rule 21 provides for an entry of all motions in the motion docket when filed, " which filing: shall be considered notice of said motion before the continu- O ance or final disposition of the case for the term, except where it is- otherwise provided by statute." Notice must be given of a motion to enter judgment nunc pro- fane? or to amend a judgment after the term. 4 Notice of proceedings against any attorney for fraudulent or dis- honorable conduct, or malpractice, or contempt, or for failure to pay over money collected, must be served at least five days before the trial day. 5 An officer selling property otherwise than as au- thorized by law, or failing to pay over money collected on execu- tion, or who fails or refuses to levy upon and sell property justly liable to execution, or to return an execution as required by law, or any person who shall bid off property at execution sale, and fail to comply with the terms of the sale, may be proceeded against by motion on five days' previous notice being given. 6 Three days' no- tice of a motion to substitute lost records and papers is required. 7 Ten days' notice must be given of a motion to dissolve an injunc- tion. 8 court, comes too late when urged for the first in the appellate court (Knight v. Holloman, 6 T. 153; Holnian v. Chevaillier, 14 T. 337; Turner v. State, 41 T, 549), and it is held that courts take judicial notice of the pleadings in a cause, and are supposed to know the signatures of their clerks. Eggenberger v. Bran- denberger, 74 T. 274 (11 S. W. Rep. 1099), citing Whart. Ev., 325, and Buell v. State, 72 Ind. 523. iR S. 1458. 2 R 8. 1460. aCowart v. Oram, 1 App. C. C., 184; R S. 1356. * Byars v. Justin, 2 App. C. C., 687. 6R'S. 266, 269. R S. 2379, 2381, 2385, 2386, 2387. RS. 1498. 8 R S. 3007. Motions to strike out pleas which have been filed out of due order, or amendments filed without leave, motions for new trial, in arrest of judgment, or for a judgment non obstante veredicto, etc., have relation to the progress of the cause, of which it would seem that the opposite party is bound- to take notice. In Clute v. Ewing, 21 T. 677, a reference of the cause had been made to arbitrators; at a subsequent term they reported and referred the cuse back upon the ground that the parties had not agreed upon the terms of the arbitration, and the plaintiff filed a motion to discharge the reference. There having been a verdict and a judgment in favor of the plaintiff, the defendant not having been present at the trial, a motion for a new trial was made, and one of the grounds assigned therefor was that the defendant was not served with notice of the motion to discharge the reference to arbitrators. The court say N- ;,."> provides that on motion to correct a misrecital in a judiriM'-Mt reasonable notice shall be given, 1 and it is held that four 'Mcieut.-' :!. Motions disposed of, when. All motion.- relating to a suit pending, which do not go to the . may be dispo-.-d of at any time before the trial of th All motions not relating to a suit pending must be D up and disposed of in their order the same as other suits. 4 The ral.-s provide that "the court will set apart a particular day each week of the term when motions previously made, in which proper notice has been given, shall be determined, if urired. unless oil cau-e tin-van- postponed to a day during the term, or con- tinued by consent to the next term." ' Notice of objections to the form or manner of taking and returning depositions must be de- cided before either party shall be required to announce readiness for trial on th.- facts." The statute provides that such notice must be in \vriting, and that notice must be given to the opposite party before the trial commences; 7 when such notice is given, the motion to suppress may be heard during the progress of the trial. 8 the motion in this case had relation to the mode of trial, and the defendant, knowing that the parties had failed to agree upon the terms of arbitration, should have expected and looked for such a motion, unless he knew that the suit against him had been abandoned, of which there is no pretense. This motion is entirely unlike that in the case of Houston v. Sublett. 1 T. ."23, relied on to show that thereof should have been served on him. The motion in this case, having n to the further progress of the cause, should have been expected, and "t. under all tlit- circumstances, calculated to take him or his attorneys In Hi.u-tiu \. SuMett, 1 T. -VJ:;. it was said that where there is a rule to pay i-M-t-. tli- i. mu-t. as a general rule, be notice to the party upon whom rate, in order to attach the consequences of a failure to perform the But in thi- <-a-.- tin- motion was made after the continuance of, the cause fur the term. In Holshauseii v. Hollin^s\v.>rtli. ''>'' T. M'I. tin.- ruling in II v. Sublet is approved, but the question was not involved in the K. S. 1: 'Coffee v. Black, 50 T. 117. R - in y an- to l.e tried at the first U-rm to which the attention of art -hall U railed to them, unless passed by agreement of parti.-* with the consent of the court: they mu.-t l>e railed and disj>osed of before the mam issue on the merits is tried. Rule '-'4. Motions relating to the merits mu-t U> I at the first ti-rm of the court when the case is called in the re^ulai i'or trial on the docket, if reached, whether there be an announcement on the Mr not. unl'-.-s passed by agreement of parties with the consent of the court. KiiK -'"'. 'I.. tii >n> not disposed of before trial on the merits are cli waiv.-d. Krwin v. Citv of Au-tin, 1 App. (J. C., 1037. KJ1. Miu. Bol R. S. -,>289. Col. man v. Colgate, 69 T. 88 (8 S. W. Rep. 553); So. Pac, Ry. Co. v. Ro;\ S. W. Rep. 316. CHAPTER XLIX. COSTS OF SUIT. 713. Composed of fees due officers. 714. Each party responsible for his own costs. 715. Payment of fees in advance, or to end of term. 716. Costs not paid on demand, how collected. 717. Right of successful party; dis- cretion of the court. 718. Costs where demand is reduced by payment, or a counter- claim is filed. 719. Costs in actions for assault and battery, slander, etc. 720. In suits against counties. 721. In case of new trial or arrest of judgment. 722. In case of appeal or certiorari. 723. Executors, administrators and guardians. 724. Costs when tender of debt is made. 725. Action prematurely brought. 726. In trespass to try title. 727. What may be taxed as costs. 728. Compensation of guardians ad litem. Witness fees. Costs on motions, exceptions and other pleadings. 731. Fee books; fee bills; penalty for taking illegal fees; posting list of fees. 732. Fees of clerks of district courts. 733. Fees of county judge. 734. Fees of clerks of county courts. 735. Fees of sheriffs and constables. 736. Relaxing costs. 713. Costs of suit, composed oi fees due officers. Incident to the suit are the costs, 1 which are composed of the fees due the officers of court, for services rendered during the prog- ress of the suit. Ordinarily no costs are allowed to the successful party, to reimburse him for the expenses incurred in the suit by the employment of an attorney, etc. The compensation of the attorney is regulated by agreement between him and his client, and -is paid by the latter. 2 1 State v. Dyches, 28 T. 535. Where a judgment in favor of a plaintiff has 'been reversed on a subsequent judgment in the district court in his favor, he is not entitled to recover from the defendant the costs that had been previously adjudged against him by the appellate court. Farquhar v. Hendley, 24 T. 300. 2 Article 1212 of the Revised Statutes of 1879 (Civil Code, art. 1211) allowed a reasonable fee to the attorney appointed to defend for a defaulting non-resident defendant cited by publication. This provision is omitted from the revision of '1895, though article 1346 provides for the appointment of an attorney in such cases. Where a sheriff takes an indemnity bond in levying an attachment, and is sued for damages, he is properly allowed reasonable attorney's fees for defend- ing the suit. Schmick v. Noel, 72 T. 1 (8 S. W. Rep. 83). When the statute above referred to was in force, it was held that when judg- *.] COSTS or SLIT. I'.y act of 1SS9, provision is made for the recovery of an attor- . nut to exceed $10, in suits against railroad companies on claims, not in excess of $50, for personal services rendered or labor done, or for damages, or for overcharges on freight, or killed or injured. 1 The act is constitutional.- Provis- ion is also made for the recovery of reasonable attorney's fees for the prosecution and collection of claims against life and health insurance companies.- 4 This act is held valid. 4 714. Each party responsible for his own costs. h party to any suit is responsible to the officers of the court for the costs incurred by himself; 5 and in case the costs cannot b collected of the party against whom they have been adjudged, ex- ecution may issue against any party in the suit for the amount of incurred by him, but no more. 6 "When the plaintiff recovers judgment for costs, but is unable to make them out of the defend- ant, he is liable to the officers of the court for so much only of the of the suit as was incurred in his behalf; and the liability of his surety for the costs is the same. 7 ment was rendered against one cited by publication, in a suit by a material- man to enforce his lien, the fee allowed the attorney appointed to defend t In- absent defendant might be taxed in the bill of costs, and satisfied out of tlie proceeds of the sale of the property on which the lien is enforced. Read v. ( rillfspie, 84 T. 42. But a personal judgment for costs against a defaulting non- resident defendant cited by publication is void. Taliaferro v. Butler. 77 T. 578 14 S. W. Hep. 191); Hardy v. Beaty, 84 T. 562 (19 S. W. Rep. 778); Gunt.-r v. Armstrong, 2 Civ. A pp. 599 (21 S. W. Rep. 607). So held in a suit for partition. Freeman v. Preston, 29 S. W. Rep. 495; Foote v. Sewall, 81 T. KM (17 S. W. Rep. While an action for title to an undivided interest in a tract of land upon e by publication against lion-resident defendants is valid, yet judgment linst such non-residents is without jurisdiction, and a. sal- under it void. Hardy v. Beaty, 84 T. 562 (19 S. W. Rep. R a 4548. C. & a F. Ry. Co. v. Ellis, 87 T. 19 (26 & W. Rep. 985; 18 & W. Rej> W. H,-].. 9 R S. :ji>71. 4 L'nion Cent L. Ins. Co. v. Chowning, 86 T. 654 (26 S. W. Rep. 982 1: Mm. L. .. v. Walden, 26 a W. Rep. 1012; Same v. Blodgett. '.'7 S. \V. I; p. >'.. ! all. wing costs to a garnish.ee he may also be allowed a reasonable att : fee. R a 253: Johnson v. Blanks," 68 T. 495 (4 S. W. Rep B51 : Willis" v. H.ath. 75 T. 121 ,12 a W. Rep. 971); Curtis v. Ford, 78 T. 262 (14 a W. Rep. 614). 9L 1 121. 2491; Anderson v. M.-Kinney, 22 T. 053. R a 2491. A person by becoming a surety on a replevin bond becomes a. part v t<> th> suit, and is liable to have costs adjudged against him. Mills v. Ha. -k.-tt.WT. 580. t>F 0- * * : Tarlton v. Weir, 1 A pp. C. C., 146; Cleveland v. Henderson. 4 T. 1- jud^ment in favor of the officers of the court for costs in< -in-red l>y the su ful against the losing party belongs to such officers. It i-annot be offset by a claim against the successful party. That he was insolvent will not make an ex- 11 to the rule. Kuddt-11 v. Shirks, 79 T. 3W (!') S. \V. Hep. 239). 078 COSTS OF SUIT. [ 715, 716. Costs in contested election cases are taxed according to the laws governing costs in otiier cases, except when otherwise specially provided. A bond for costs may be required. 1 715. Payment of fees in advance, or to end of term. < Mticers receiving any process to be executed are not entitled in any case to demand their fees for executing the same in advance of such execution, but their fees shall be taxed and collected as other costs in the case. 2 No sheriff or constable is required to execute any process in civil cases coming from any county other than the one in which he is an officer, unless the fees allowed him by law for the service of such process shall be paid in advance. But when the pauper oath is filed, as provided by statute, 3 the clerk issuing the process must in- dorse thereon the words " pauper oath filed," and sign his name officially below them, and the sheriff or constable in whose hands such process is placed for service must serve the same as in other cases. 4 It is lawful for the clerks of the district and county courts to de- mand payment of all costs due in each and every case pending in their respective courts, up to the adjournment of each term of said courts. 5 This article applies to pending suits only, and not to those in which final judgments have been rendered. 6 716. Costs not paid on demand, how collected. Should any party, against whom costs have been taxed, fail or refuse to pay the same within ten days after demand for payment, the clerk may make out a certified copy of the bill of costs then due, and place the same in the hands of the sheriff or constable for collection. Such certified bill of costs will have the force and ef- fect of an execution. The removal of a case by appeal will not prevent the clerk from issuing his execution for costs, at the end of the term at which the appeal is taken. 7 The sheriff or constable, 1 R S. 1804./. 2 R S. 2487. RS. 1442. RS. 1421. R S. 1422. 6 Wilson v. Simpson, 68 T. 306 (4 S. W. Rep. 839). 7 R S. 1423. This article gives the remedy for the collection of costs in case the demand of payment up to the end of the term is not complied with, in cases in which final judgment has not been rendered. A bill of costs incurred after linal judgment and the end of the term, and made by reason of suing out a writ of error, does uot have the force and effect of an execution, and any sale made thereunder, as under execution, is void. Wilson v. Simpson, 68 T. 306 (4 S. W. Rep. 839). The clerk, after an appeal bond has been filed, may issue execution for the costs made by the appellant but for no other costs. Extence v. Stewart, 23 S. W. Eep. 291 An agreement between the parties for a stay of execution will not prevent the issuance of execution in behalf of the officers of the court. Clegg v. De Bruhl, 45 T. 141. 717.] COSTS OF SUIT. 679 upon demand ami failure to pay the bill of costs, may levy upon a sutlicient amount of property of the person from whom said costs may IK- due to satisfy the same, and sell such property according nt the law irovernino; sales under execution. Where such party is not a re>ident of the county where suit is pending, payment of the may In- demanded of his attorney of record. The clerk is not allowed to charge any fee for making out such certified bill of costs, nor is the sheriff or constable allowed any fees for collecting the >ame. unless he is compelled to make a levy; and in case of levy or sale, he may charge and collect the same fees as are allowed for o>llect ino; money under other executions. 1 Any rlerk of a court, when any suit is determined in his court and the costs are not paid by the party against whom the. same have been adjudged, may issue execution therefor against such party, under the same rules governing executions in other cases, to be levied and collected as in other cases. A bill of costs, showing each item thereof, for which the party against whom the execution issues is liable, must accompany each execution or order of sale. Any person to whom any costs are due in a suit or action which has been determined may demand that execution issue therefor, and thereupon it is the duty of the clerk to issue execution for all - due by [to] such party at once. 2 No execution for costs is per- mitted to issue until after judgment rendered therefor by the court. 1 But in all cases in which final judgment has been rendered, it is made the duty of the clerk, from and after the adjournment, to issue execution to enforce the judgment and to collect the costs remain- ing unpaid. 4 The several items of the bill of costs to be collected under the execution must be indorsed thereon in intelligible words and figures.* 717. Right of successful party; discretion of the court. The successful party to a suit may recover of his adversary all the costs expended or incurred therein, except where it may be IRS. ll'JI. J R S. -,' I s " .'190. As to the issuing of execution against the successful party where the costs cannot be made out of the opposite party, see Simpson v. Trim- ble, 44 T. 810. R S. 249a 4 K. s. j:;.'t. An execution for costs is properly issued in the name of the party i. .<>v, -ring costs. It should not be issued in the name of the officers en- title,! to tli,. rusts. Smith v. IVrkins, si T. LVJ i Hi S. \V. Rep. 805). Wher.. ; i cause has been appealed ami reverted an, I ivmanded and is still jH'iulinic. ami an exerut i,in ^sues against tin- successful party in the appeal for costs nia le I iy him, an K.-.-H adjudge,! ami obtain judgment against him. 'I'll,- pi-,.per prai-ti.-,- i- l>\ mntin in the district court for adjustment of cost*. Moore, * s. W. Rep R. S, 2338. 680 COSTS OF SUIT. [ 717. otherwise provided by law. 1 The court may, for good cause to be stated on the record, adjudge the costs otherwise than as directed by the statute on the subject of costs. 2 All fees allowed by statute,, pertaining to suits or actions in courts, must be allowed and taxed 1 R. S. 1425. In equity and in suits for specific performance, prima facie the party who fails is liable for the costs; but this depends upon circumstances, to- be determined by the court. Walling v. Kinnard, 10 T. 508; Latham v. Taylor, 15 T. 247. In an action to enjoin the enforcement of a void judgment, where the owner of the judgment pleads in reconvention the cause of action on which th? judgment is founded, and recovers, the costs of the suit should be adjudged against him. G., C. & S. F. Ry. Co. v. Schneider, 28 S. W. Rep. 260. When judgment is rendered in favor of part of the defendants they should recover costs of the plaintiff. International & G. N. Ry. Co. v. Hall, 78 T. 657 (15 S. W. Rep. 108). In a suit on a note and to foreclose a lien on land, if a moneyed judgment with decree of foreclosure be entered for plaintiff, it carries all costs against the defendant, including such as may have been incurred at his instance. Bellamy v. McCarthy, 75 T. 293 (12 S. W. Rep. 849). Where there are several defendants, and the plaintiff dismisses as to some and recovers judg- ment against others, it is error to tax the costs incurred in the suit by those dis- missed from the suit against those against whom recovery was had. Remedy by motion to retax costs if necessary. Clark v. Adams, 80 T. 674 (16 S. W. Rep. 552). 2 R S. 1438. When the costs are adjudged by the court otherwise than is pro- vided by law, the reason why this is done must appear of record. A jury have no power to adjudge costs contrary to the provisions of the statute; and if they so adjudge, the verdict should be set aside and disregarded. Flores v. Cov, 1 App. C. C., 804. In an equitable proceeding, and also when the judgment as to a portion of the matters in controversy is given for one of the parties and against him as to> other matters, the question of costs is left to the discretion of the court below. Spiers v. Purcell, 2 U. C. 624. In foreclosing a lien upon several pieces of prop- erty, the court may charge the whole amount of costs against all the property, instead of taking it pro rata against the various pieces. Cave v. City of Hous- ton, 65 T. 619. The settled practice in rendering final judgment in this country in favor of the defendant has been, it is said, to adjudge the costs against the plaintiff. Jennings v. Moss, 4 T. 452. Where the verdict of the jury is in favor of the plaintiff generally, and there are two defendants, appearing equally in fault, it is error to render judgment for costs against one alone. Herndon v. Rice, 22 T. 455. Where in an action for damages ex contractu, the jury found that both parties were guilty of fraud, and that each should pay half the costs, it was within the discretion of the court to render judgment against the plaintiff for all the costs. Baker v. Wofford, 9 T. 516. And it was held that the court properly ignored an apportionment by the jury in an attachment case in which the defendant re- convened for damages. Garrett v. McMahon, 34 T. 307. The court may sometimes be influenced by the obstinacy of the defense. Yeary v. Cummins, 28 T. 91. Where a judgment by default against a garnishee was set aside on condi- tion that he pay the costs, his failure to pay the costs did not entitle the opposite party to judgment anew against him. The whole matter was within the con- trol of the court, and it would not have been beyond its jurisdiction to modify the order taxing costs so as to relieve him from them entirely. Marx v. Ep- stein, 1 App. C. C., 1319. COSTS OF SUIT. '.>[ in the lill of costs against the party cast, except where it is other- provided by l;i\v or adjudged by the court. 1 In divorce proceedings the court may award costs to the party in whose behalf the sentence or decree shall pass, or it may derive that each party shall pay his or her own costs, as to the court shall ap- reas. >nable.- The costs of a partition suit are adjudged ji.irainst each party to whom a share is allotted, in proportion to the value of his share. 3 Where defendants litigate a partition suit it is proper, on the plaintiff succeeding, that he have judgment for his up to the final judgment, the costs of partition to be paid ///v iiy those taking in partition. 4 Where no cost bond is required of plaintiff, and the suit abates by reason of the death of the defendant, and no effort is made to revive it, a judgment for costs against the plaintiff and in favor of the officers is void. Plaintiff is liable to the officers of the court for his own costs only, and it seems that their proper remedy is by ac- tion against him. 5 ?' 718. Costs where demand is reduced by payment, or a counter- claim is filed. Where the plaintiff's demand is reduced by payment to an amount which would not have been within the jurisdiction of the court, the defendant recovers his costs. 6 Whenever a counter-claim is pleaded under the provisions of tlu- statute, the party in whose favor final judgment is rendered re- covers his costs, unless it be made to appear on the trial that the 1 R S. 2480. 2 R S. 2988. In suits for divorce the question of costs is left much to the dis- cn-tion of the court. Withee v. Wither. ."in T. R a 3635: Johns v. Northcutt, 49 T. 444. < \-k.-Y \. Williams. 74 T. 294 (11 & W. Rep. 1101). In a suit for specific per- iiice and for jtartition of land against unknown owners alleged to be non- :its, judgment fur partition wa-- valid, hut judgment for costs against the unknown owners was without jurisdiction and was void. The execution under such judgment for costs was void, and a purchaser under it took nothing. Foote v. Sewall, 81 T. 659 (17 S. W. 1 *Hollingsworth v. Bagley, 35 T. 345. On the death of a trustee, if the creditor goes into equity for the api>ointment of a successor, the costs are taxed against him, to come out of the trust fund. Buchanan v. Hart, 31 T. 047. It ha- held that as the distinction between law and equity is abolished in thi- we are not confined to the strictness of common-law courts on the subject of costs. Payne v. Benham. 16 T. 364; Gibson v. Moore. T. 611. The grantor in a fraudule: ,in e may be charged with the costs of a suit in which the conveyance is set aside. Birdwell v. Butler, 13 T. 338i Teas v. McDonald, 13 T. 349. R S. 1432. Where it appeared upon the face of the petition that all of plaint- iff's demand was barred by limitation, except an amount below the jurisdiction of the court, it was not error, upon exception \>y the defendant, to .li>n plaintiff's cost Lowe v. Dowbarn, 26 T. 507: r.rowning v. Hart, 29 T. -'71: v. Ryon, 9 T. 405; Cochran v. Kt-llum. 4 T. 1J". COSTS OF SUIT. [ 719-721. counter-claim of the defendant was acquired after the commence- ment of the suit, in which case, if the plaintiff establishes a cause of action existing at the commencement of the suit, he will recover his costs. 1 Where the plaintiff recovers judgment for an amount that would not have been within the jurisdiction of the court, his de- mand having been reduced on the trial by counter-claim, and not l>v payment, it is error in the court, without cause therefor stated on the record, to adjudge against him the costs of the suit. 2 Where defendant recovers a judgment for the excess of his counter-claim over plaintiff's claim, he is entitled to costs. 3 The defendant may set up, either originall} 7 " or by amendment, a claim, acquired after suit brought, subject to the question of costs. 4 719. Costs in actions for assault and battery, slander, etc. In all civil actions for assault and battery, slander and defama- tion of character, if the verdict or judgment be for the plaintiff, but for a less sum than twenty dollars, each party will .be taxed with the costs incurred by him in such suit. 5 The fact that tender was made before suit brought does not alter the rule. 720. In suits against counties. When the plaintiff in a suit against a county fails to recover a greater amount than the county commissioners' court of such county shall have allowed him on the presentation of his claim to such -court, he must pay all costs of suit. 7 721. In case of new trial or arrest of judgment. The costs of all new trials may either abide the event of the suit or may be taxed against the party to whom the new trial is granted, AS may be adjudged by the court at the time of granting such new trial. When the judgment is arrested or the verdict set aside be- cause of the insufficiency of the pleadings of the party in whose favor the verdict or judgment was rendered, the costs thereof will be taxed against the party whose pleadings shall have been ad- 1 R. S. 753. 2 Denson v. McCasland, 2 Civ. App. 184 (21 S. W. Rep. 169). 'McCormick H. M. Co. v. Gilkey, 23 S. W. Rep. 325; Hall v. Hodge, 2 T. 323. In an action by a borrowing stockholder of a building and loan association to have payments on stock credited on the note given for the loan and also to have payments of usurious interest credited thereon, judgment was rendered for the association after deduction of interest payments, and it was held that taxation of part of the costs against plaintiff was not error. Sweeney v. El Paso Build- ing & Loan Ass'n, 26 S. W. Rep. 290. 4 Thomas v. Young, 5 T. 253; Gaines v. Salmon, 16 T. 311; Parrott v. Under- wood, 10 T. 48. R. S. 1433; Breen v. T. & P. Ry. Co., 50 T. 43. 6 Breen v. T. & P. Ry. Co., 50 T. 43; Cole v. Tucker, 6 T. 266. ' R. S. 798. ir. iusutlieient. 1 An order granting a new trial upon payment of al : th<- term is not a judgment upon which an execution may is>ue for sue! i costs.-' Win-re a party is forced to take a non- suit by reason of a mistake of a third party, without any fault on his part, the costs resulting should abide the result of the suit. 5 ? 722. In cases of appeal or certiorari. In ca^.-s of appeal or .,///"/,///' taken by the party against whom the judgment was rendered in the court below, if the judgment of the court above be against him, but for a less amount, he will re- cover the costs of the court above, but must pay the costs of the court below; if the judgment be against him for the same "or a greater amount than in the court below, the adverse party will re- cover the costs of both courts. 4 In cases of appeal or certin-m't taken by the party in whose favor the judgment was rendered in the court below, if the judgment of the court above be in his favor for a -reater amount, he will recover the costs of both courts.: if the judgment be in his favor, but for the same or a less amount than in the court below, he will recover the costs of the court below and must pay the costs of the court above. 5 The court may, for good cause, to be stated on the record, ad- judge the costs otherwise than above directed; 6 but where judg- ment went against a party in the justice's court for $111, and on appeal by him the judgment was reduced to $52.50, it was held that his failure to defend in the justice's court was not, in view of the amount of reduction of the judgment, a sufficient reason for divid- ing the costs of the county court. 7 !R S. \\-\\, 1 4 5. The question of costs becomes res adjudicata where pay- ment thereof is imjiosed as terms upon granting a motion for a new trial, and it i> error for the court to refuse to reform the final judgment accordingly. The action of the court in refusing to reform the judgment being apparent on the record, no bill of exceptions is necessary. Randall v. Collins, 52 T. 4:r>. A> to granting new trials on payment of costs, see Clifton v. Lilley, 12 T. 130; Houston v. St. -i IT. U T. 424; Gorman v. McFarland, 18 T. 287. Herndon v. Rice, 21 T. 455. 'Peek v. MrKellar. 83 T. Mi 1 K'. s. I4:i; Tex. & Pac. Ry. Co. v. Taylor, 2 App. C. C., 417; So. Par. Ry. Co. v. Duncan, 3 App. C. C.. g 235; Rogers v.* Fox. 4 App. C. t .. g B5; 1'nuit v. Kelley, 4 App. < . i '.. ? IT'.: G., C. & a F. Ry. Co. v. King*-. 4 App. t .O.. v. Sum row. 4 ApfK G. CL. | '>'>": I'hillips v. Sass, 1 App. t Phillips v . A'lkin>. 1 App. d< I. & G. N. Ry. Co. v. John-im. 1 App. C. BSS: Han. lei \. Kramer. 1 App. C. C., 828; Anderson v. Herman. 1 App. 9; Mex. Cent. Ry. Co. v. Cliai-man. '.'I S. \V. K-p. '...>. S Foreman v. ' T. 729; Norton v. Walker, 19 T. 192; H..K -liki-s v. Ch.-vallier. 12 T. J.M: K. .reman v. Gregory. 17 T. P.i::. R S. 1437 : Gallagher" v. Finley. 2 App. ( '. CL, ? 624. R. S. 10: (i.. c. & S. F. Ry. Co v. Hemler-m. *:>, T. 70 (18 S. W. Rep. 432). v & F. Ry. Co. v. Klu-.-. I App. C ' GSi COSTS OF SUIT. [ 723. In the justice court plaintiff recovered judgment foreclosing a lien on certain personal property if found, and if not, for the value thereof, which was assessed at $57.52. Upon appeal to the district court by defendant judgment was rendered for plaintiff for $55.50 and costs in the justice court, but against him for the costs of the district court. This was held correct. Each court rendered a money judgment against defendant. The amount recovered by the plaint- iff on appeal being less than that in the justice court, the statute regulating costs was applicable. If the principal of the judgment rendered upon appeal be less than that of the judgment appealed from, the rule as to costs is the same, although the aggregate of principal and interest of the former judgment exceeds that of the latter. 1 So where recovery was had for $35 in a justice court, and defendant appealed, and on appeal judgment was rendered for $30 and accrued interest, aggregating over $35, it was held error to compute interest during the appeal so as to impose costs upon the appellant when in fact by appeal he had reduced the recovery. 2 In appeals from justices the justice is required to send up, with the transcript, a certified copy of the bill of costs, taken from his fee book. 3 This evidently means a bill of costs showing each item of costs, and not a general statement. Where, instead of taxing the fees of each witness separately, the fees of all are aggregated into a single item, thus, " witness fees in justice's court, $117.76," a& shown by the justice's transcript, the charge is illegal, vague, in- definite and uncertain, and should be rejected. 4 723. Executors, administrators and guardians. The statutes in relation to executions and payment of costs do not apply to executors, administrators or guardians, but in cases where costs are adjudged against an estate of a deceased person, or of a ward, the costs must be collected as provided in the titles " Es- tates of Decedents " and " Guardian and Ward." 5 The provisions of the law regulating costs and security therefor apply to matters, of guardianship, where the same are not expressly provided for in the title of the statutes relating to guardian and ward. 6 When the matter in controversy concerns the administrator individually, and i Conner v. Elkins, 66 T. 551 (1 S. W. Rep. 798); Bailey v. James, 64 T. 546. 2 G., H. & S. A. Ry. Co. v. Wehners, 74 T. 564 (12 S. W. Rep. 281). The dis- missal by the county court of an appeal from a justice court, for want of juris- diction, does not deprive that court of the power to render judgment for the costs of the appeal. Llano Improvement & F. Co. v. White, 5 Civ. App. 109 (23- S. W. Rep. 594). a R. S. 1673. 4 Perry v. Harris, 1 App. C. C., 479. 5 R S. 2492. As to Estates of Decedents, see Revised Statutes, articles 2245-54, As to Guardian and Ward, see Revised Statutes, articles 2784-88. R. S. 2788. :!. 725.] COSTS OF SUIT. not in his representative capacity, he is personally liable for costs. 1 Where in an action of trespass to try title a judgment for costs is entered against an administrator, it will not authorize a sale of the property of the estate on execution. 2 'l. Costs when tender of debt is made. If the defendant pleads a tender before suit brought, and pays the money into court, if the plaintiM' does not recover judgment be- yond the amount paid into court, he will be liable for all costs. 3 If the tender is made after suit brought, the phiintill' will recover up to tin time the money is paid into court ; if he proceed with the action and fail to recover beyond the amount paid, he will be liable for all subsequent costs. 4 A plea of tender is not appli- cable in an action for the recovery of unliquidated damages ;' but where a tender is made in such a case, it is held that the costs ought to be divided, as provided by the statute in actions for assault and tery and slander, where the plaintiff recovers less than *_'"." Where there is a standard by reference to which an estimate of the amount due may be made, the amount is in effect liquidated, and its a proper case for tender, entitling the defendant to exemp- tion from costs, provided the amount be paid into court with the plea. 1 125. Action prematurely brought. The only effect of beginning a suit before the maturity of the de- mand on which it is based, but which matures before the trial (that fact being shown by amendment), is to subject the plaintiff to the payment of costs incurred before the maturity of the demand. 1 Where suit by attachment is brought on a note not due, and the plaintiff amends after the maturity of the note, asking judgment thereon, and the attachment is q-iashed, costs should be adjudged against the plaintiff up to the date of the amendment." Where a suit is prematurely brought, the plaintiff may amend and set up a new cause of action, but the costs up to the amendment should be adjudged against him. 10 1 Peabody v. Murks. r t T. 19. See Davis v. Thomas, 5 T. 889. Schmidt v. Hun*. 7 Civ. App. 3, \V. i;.-p. ln.Vti. A judgment ;i-:iin>( :i deceased intestate may be revived against the administrator at the cost of the plaintiff. Cul.-v. i;..l..-rtM.ii. 6 T. 856. \rrh. IV. ]:',:-. Arrh. IV. 'Jnii. < -> An-h. iv. -Jo:?; sim..n v. Allrn, 76 T. 398 (18 & W. Rep. 296); Berry v. Davis, 191 (13 S. W. Rep. 978). Sedg. on Dam. 580; Breen v. T. & P. Ry. Co., 50 T. 48; Cole v. Tucker, 6 T. Mft 1=5 : ren v. T. & I'. Ry. Co.; 50 T. 43. Wall ill}; v. Kinii:ir.l. K' T. :>08. Cri'-.-.-iit Ins CO v. Camp, ill 'I'. .Y.M. 1 Arn. .Id v. Willis 'I- T tK B, W. K- p. 185). See Cox v. Ri-inhardt. 4 T. 591. 10 Ft. \V. City MilM 1 ,,. v. Milam. 1 Ap M7, CSG COSTS OF SUIT. [ 720. 726. In trespass to try titlo. In this action, if the defendant asserts title to the land in contro- versy, the plaintili, if he recovers any part of the land, is entitled to costs. 1 If defendant should disclaim as to the interest to which he is not entitled, plaintiff, on recovering an undivided interest, would be liable for costs; but if defendant litigates the whole title, he is liable for the costs. 2 Where defendant disclaims as to a part of the matter in controversy, and also files a plea of not guilty, on recovery by plaintiff of a part of the land to which the plea was tiled, a judgment against defendant for all the costs is proper. 3 Where defendant pleads not guilty, and the finding is in his favor for more land than is claimed by plaintiff, the judgment should be that plaintiff take nothing, and that defendant recover his costs ; 4 so, also, where the defendant pleads title, with an indefinite de- scription of the land claimed, and recovers. 5 Where the defendant properly vouches in his several warrantors, the costs of so doing are correctly adjudged against the plaintiff, in the event that judgment goes in favor of the defendant for plaint- iff's failure to maintain the suit. Error in a matter of this kind to be available on appeal must be first called to the attention of the court below. 6 Where plaintiff recovers against claimants of the whole title, and also against contestants of his boundary, he may properly have judgment for costs against all the defendants; and if it does not appear that any items were peculiar to his boundary contest which would not have been incurred in a suit between the two classes of defendants, the boundary contestants are entitled to judgment for costs against the defeated claimants of the title. 7 i Dutton v. Thompson, 85 T. 115 (19 S. W. Rep. 1026); Meyer v. Kirliqks, 25 S. W. Rep. 652; Mullaly v. Noyes, 26 S. W. Rep. 145; Galveston, L. & Y. Co. v. Perkins, 26 S. W. Rep. 257. But see Eddie v. Tinin, 7 Civ. App. 377 (26 S. W. Rep. 732), where plaintiff sued defendant as a trespasser upon certain lots, claim- ing that they embraced a strip of land in controversy, and, having failed in the suit, it was held that he was bound for the costs, though he was adjudged to be the owner of the lots. 2Ballard v. Carmichael, 83 T. 355 (18 S. W. Rep. 734). 3 H. & T. C. Ry. Co. v. Heirs of Bowie. 2 Civ. App. 437 (21 S. W. Rep. 304); Baker v. Tom, 4 T. 5; Blue v. Chandler, 17 T. 126. 4 Musselman v. Strohl, 83 T. 473 (18 S. W. Rep. 857). s Warren v. Frederichs, 83 T. 380 (18 S. W. Rep. 750). In trespass to try title for a city lot the jury found for the plaintiff and assessed the value of the im- provements at a sum greater than the lot, and it was held that this presented no reason why the plaintiff should not recover costs. Jobe v. Olire, 80 T. 185 (15 S. W. Rep. 1042). Where the petition prays for the recovery of the land in controversy, also for the purchase-money of the certificate, as well as for money paid in accordance with the terms of the certificate, and a decree is rendered in favor of the plaintiff for the latter item alone, then, in such case, the costs of suit will be adjudged against the plaintiff. Wheatley v. Griffin, 60 T. 209. 6 Sulphur Springs & M. T. Ry. Co. v. St. L., A. & T. Ry. Co., 2 Civ. App. 650 (22 8. W. Rep. 107: 23 S. W. Rep. 1012). ? Hill v. Smith, 6 Civ. App. 312 (25 S. W. Rep. 1079). 72C.] >re OF sAir. 687 "Where pluintitT sets up l>y am'-ndment a title acquired subsequent to the alleged ouster, ami recovers exclusively on that. IK- is liable for the costs of the suit. 1 Where the defendant pleaded not guilty T and a trial was had. and after reversal on appeal the defendant by amendment set up title only to a part of the land sued for. and on the trial made irood the claim, it was held that plaintili' was entitled to costs of suit up to the tiling of the amended answer, which was in effect a disclaimer as to all the land sued for and not claimed in the amended answer. 2 A disclaimer may relieve a party from liability for costs incurred after it is tiled, but not for costs previously incurred if he was in possession when suit was brought or set up claim of title. 3 A dis- claimer admits the plaintiffs title to the land, and, considered alone in connection with the petition, entitles the plaintiff to a judgment for the land and the defendant to a judgment for costs. If, how- . the plaintiff shows that the defendant was in possession when the suit was brought, the defendant will not be entitled to his t One of several defendants disclaiming, and not in possession. i> en- titled to costs. Where a defendant asserted title to an indefinite part of the land claimed, or included in a certain survey, and dis- claimed a> to the rest, a judgment for him for the land claimed carried the costs. 6 Where the defendant retains possession of a 1 Schmidt v. Huff, 7 Civ. App. 593 (28 S. W. Rep. 1053). See Woods v. Durrett. 28 T. 429. - Keyser v. Meusback,-?? T. 64 (13 S. W. Rep. 1" Capt v. Stubbs, 68 T. 222 (4 S. W. Rep. 467); Dikes v. Miller, 24 T. 417 Daniel v. Martin. .'* s. \V. Kep. 1041. \\Vooters v. Hall. 117 T. :>W i:i S. W. Rep. T^i. \Vh< re a writ of sequestration had issued, nd in order to show that when the suit was begun tin- defendant ass.-rted claim t<> tin- land, and thereby enable plaintiff to recover his costs. Capt v. Stubbs, 68 T 3, W. Rep. 467). 'Johnson v. Schumacher. T'J T. :W4 (12 S. W. Rep. 207). In a suit by s. tenants in common a^ain-t another who did not disclaim as to tin- plain tirTs but pleaded not K'li'ty. it was held that all costs up to the judgment of recovery l.y plaintiffs of their interest were taxable a^ain>t the defendant. Kinp v. Ho-k. ^' T. ! 3 W. l:--p. -". A tenant in jM.-vsession wa> sued in trespass to try title. H- diselaime.l. and his landlords were made partie-. and it was held that a judgment for plaintiff property adjudged costs a^'ain^t the original defendant, notwithstan '['. \<\.', \V. Rep. i In tr try title and to cancel patentsconHietinK with the patent under which plaint itN held, the defendants disclaimed as to p.irt of the la: and pleaded not guilty. Recovery wa> had of part of tin land sued : which was pleaded not guiltv. Judgment for plaintiffs for all the cost- v. error. H. & T. C. Ry. Qx ir, Bowie, v < iv. AI ; & \V. Rep. 304). Se Mynders v. liaUton. 68 T. 498 (4 S. \V. K.-p. sr>4). Herring v. Swain. M T. V.':; ,1'J S. \V. Hep. 774). 688 COSTS OF SUIT. [ 727, 728. part of the land disclaimed, judgment should be for plaintiff for the land disclaimed with costs. 1 727. What may be taxed as costs. All taxes imposed on law proceedings are included in the bill of costs. 2 Clerks of the district and county courts are allowed no fee for motions or judgments upon motions for security for costs, nor for taking and approving a bond for costs. 3 A judgment contain- ing several orders is considered as one judgment, and only one fee may be charged by the court or clerk for rendering or entering the same. 4 A copy of a paper not required by law to be copied cannot be allowed and taxed in the bill of costs. If any party or attorney shall take out copies of his own pleadings, or of papers filed by him in any cause, it will be at his own expense; no charge for such copies can be allowed in the bill of costs. 5 The clerk or other offi- cer is not permitted to charge any fee for the examination of any paper or record in his office. 6 He is not entitled to a fee for filing any process or paper issued by him and returned into his court. 7 A stenographer is allowed a reasonable compensation, not to exceed twenty cents per hundred words, to be taxed as a part of the bill of costs. 8 728. Compensation of guardian ad litem. A reasonable compensation of a guardian ad litem may be taxed as a part of the costs of the suit. 9 A guardian ad litem cannot be charged personally with costs incurred in the discharge of the duties assigned him by the court. 10 A next friend may be charged with the entire costs of the suit w T here judgment goes for the defendant. 11 If a judgment be rendered against minors represented by a guard- ian ad litem it is proper that the costs taxed for the services of the guardian, as other costs, should be taxed against the minors and collected out of their estates, unless there be some equitable con- sideration which' would authorize the court to impose the costs upon 1 \Vilburn v. Tow, 23 S. W. Rep. 85& 2RS. 1426. 3 R S. 2476. Where the pauper oath is filed, the clerk is required to issue process and perform all other services in the same manner as if security for li;il lit- m were the result of the suit brought by the plaintiff, and after the return of nulla bona on an execution against the minors, an execution could properly issue against the plaintiff. _ The plaintiff would not be liable for the costs due the clerk or sheriff, or for witness fees incident to the minors' defense; these were not Incurred by him. (3) In the absence of a statute, equity would in some cases allow compensation to a guardian ad litein, to be taxed as costs and charged to the successful party in the cause. 1 >' 729. Witness fees. There will not be allowed in any cause the fees of more than two witnesses to any one fact. 4 Witnesses are allowed a fee of one dol- lar for each and every day they may be in attendance on the court, and six cents for every mile they may have to travel in going to and returning therefrom, which is paid on the certificate of the clerk by the party summoning them. The certificate is given on the affidavit of the witness before the clerk; and such compensa- tion and mileage are taxed in the bill of costs, as other costs. 4 1 R S. 1435, 1428: Ashe v. Young, 68 T. 123 (3 & W. Rep. 454). 2 R a 2491. 1 Ashe v. Young, 68 T. 123 (3 S. W. Rep. 454). Where there were other defend- ants joined with minors, and the court allowed compensation to a special guard- ian appointed to represent the minors, it was held error to tax such fee as costs upon all the defendants. It should have been taxed upon the property of the minors for whom the services were rendered. Holloway v. Mdlhenny Co., 77 14 S. W. Rep. 240). In Mitchell v. Mitchell, 80 T. 101 (15 S. W. Rej> the ruling was in accordance with that in Ashe v. Young, supra, that, as the guardian's fee was incurred at the instance of the plaintiff, it should have been taxed against him where the minor defendant failed to recover property out of which it could be paid. In a suit to recover the sum of $1,773, and to foreclose a vendor's lien, it was held not an abuse of discretion to allow a fee of $25 to one appointed as guard- ian charges he is called upon to pay, or if he deems them excessive or unfounded, he may make issues of law or fact, or both, thereon, in a motion to relax the costs. This he might do at the return term of the execution, even if he had paid the money to the sheriff. In such case it might be proper to give notice to the sheriff to retain the money until he could make the motion. The oppo- site party would be the proper person to make defense against this motion: for, whether he had paid the amount charged to the witnesses or not, he would be liable for it to his witnesses, if it should be a just claim. It seems that the proper time to tax fees is after adjournment of court and before execution issues. See, also, Flores v. Thorn, 8 T. 377; Hardy v. De Leon, 7 T. 467. R a 1438-1430. Rule 26. 692 COSTS OF SUIT. [ 731. such a character and is presented at such a time as to take the oppo- site party by surprise, the court may impose the cost of the term and of a continuance upon the party causing the surprise. 1 No in- strument of writing, such as a deed, will, document, record of court, or agreement, which is not sued on as a cause of action by plaint- iff, or set up as matter relied on in defense by defendant, but is de- signed to -be used only as evidence of some fact that is alleged, shall be made an exhibit in the pleading; and when it shall be so at- tempted, by attaching such instrument and referring to it as such, the court will, of its own motion, or at the instance of a party, cause the instrument to be detached from the pleading, and adjudge it to constitute no part thereof, by an order of court entered of record, at the cost of the party violating this rule, so as to prevent the pleadings from being incumbered with that which is or may be only evidence in the case. 2 The costs of an abandoned pleading, or a pleading in support of which no evidence is offered, are charged to the party filing the pleading. 3 731. Fee books; fee bills; penalty for taking illegal fees; posting list of fees. Every officer entitled by law to charge fees for services must keep a fee book and enter therein all fees charged for services ren- dered, which fee book is at all times subject to the inspection of any person wishing to see the amount of fees therein charged. None of the fees mentioned in the title of the Revised Statutes relating to 1 Rule 16. Where a new cause of action is set up by an amended petition, the effect is to subject the plaintiff to all costs incurred to the time of filing the amendment. Ross v. Kornrumpf, 64 T. 390; Henderson v. Kissam, 8 T. 46; Will- iams v. Randon, 10 T. 74; Woods v. Durrett, 28 T. 429; Dailey v. Wynn, 33 T. 614; Irvine v. Town of Bastrop, 32 T. 485. The imposition of terms upon tho allowance of amendments rests somewhat in the discretion of the court; but when, after large bills of costs have been incurred in a case, an entirely new cause of action is brought to the attention of the court, the party presenting it should be required to pay the costs previously accrued. But after the other party has answered to the merits of such new cause of action, it is too late for him to object that such terms were not imposed. Dailey v. Wynn, 33 T. 614; Woods v. Durrett, 28 T. 429. It was not error, on recovery by plaintiff in an action for money misappropri- ated, to tax the entire cost against the defendants, although an amendment had been made by the plaintiff whereby different testimony would be required to support the demand sued upon, the amendment alleging the same transaction as the basis of the liability of defendants. Cotter v. Parks, 80 T. 539 (16 S. W. Rep. 307). It is proper to tax the costs to the party amending where the amend- ment introduces new parties. Lanes v. Squyres, 45 T. 383. If a party through ignorance or carelessness joins unnecessary parties, he should be taxed with all costs up to the time of amendment. Andrus v. Pettus, 36 T. 108; Johnson v. Davis, 7 T. 173; Beale v. Ryan, 40 T. 399; Clegg v. Darnell, 18 T. 294. 2 Rule 19. a Rule 33. 732.] ,' 006T8 OF SUIT. 693 fees are payable by any person whomsoever until there be produced, or ready t. !>< produced, to the person owing or chargeable with the same, a bill or account in writing containing the particulars of such fees, signed by the clerk or officer to whom such fees are due, or by whom the same are charged, or by the successor in office or legal representative of such clerk or officer. 1 If any officer named in such title shall demand and receive any higher fees than are prescribed to them therein, or any fees that are not allowed by such title, such officer shall be liable to the party aggrieved for four- fold the fees so unlawfully demanded and received by him, t<> l>< recovered in any court of competent jurisdiction; and may also be punished criminally for extortion, as prescribed in the Penal Code. 2 It is the duty of county judges, clerks of the district and county courts, sheriffs, justices of the peace, constables and notaries public, of the several counties, to keep posted up at all times in a conspicu- ous place in their respective offices a complete list of the fees allowed by law to be charged by them respectively. 1 732. Pees of clerks of district courts. The clerk of the district court is allowed the following fees: 4 For copy of petition, including certificate and seal, each one hundred words $0 20 Each writ of citation 75 Each copy of writ of citation 5 7 . Docketing each cause, to be charged but once , _' > Docketing each rule or motion 1 ." Filing each paper 15 Entering appearance of each party to a suit, to be charged but once 15 Each continuance _' ' Swearing each witness 10 Administering an oath, or affirmation, with certificate and seal 50 Each subpoena issued Each additional name inserted in each subpoena 1.". Approving bond, except bond for costs 1 5o Swearing and impaneling a jury 35 Receiving and recording verdict of a jury 35 1 The fees of each witness should be entered in the officer's fee book aa a sepa- rate item of costs, stating the name of the witness, at whose instance summoned, the number of clays he attended, and the amount to which he is entitled. The bill of costs should be made out from this fee book, and the law .-..iiti-nip! it-s that the bill must show distinctly each item of the costs separately and not in the aggregate. Perry v. Harris, 1 App. C. C.. 5 479. J This article does not apply to fee prescribed by other titles of the statute. Wood County v. Gate, 75 T. 215, 219 (12 S. W. Rep. 585, 538). ' R& 2483-2486. * Acts 1893, p. 170; R a 2453. * This is a new provision, and changes the rule in Hallman v. Campbell, 57 T. 54 694 COSTS OF SUIT. [ 732. Assessing damages in each case not tried by a jury $0 50 Each commission to take depositions 75 Taking depositions, each one hundred words 15 Each order, judgment, or decree 75 Where the judgment or decree exceeds two hundred words the additional fee for each one hundred words in excess of two hundred words shall be 15 Each execution, order of sale, writ of possession, restitution, or other writ not otherwise provided for 75 Recording return of any writ, when such return is required by law to be recorded 75 Each certificate to any facts contained in the records of his office 75 Making out and transmitting the records and proceedings in a cause to an inferior court, for each one hundred words. . 20 Making out and transmitting the mandate or judgment of the district court upon appeal from the county court 1 00 Filing a record in a cause appealed to the district court .... 50 Transcribing, comparing and verifying record books of his office, payable out of the county treasury, upon warrants issued under order of the commissioners' court, each one hundred Avords 10 Making transcript of the records and papers in any cause upon appeal, or writ of error, with certificate and seal, each one hundred words ^ 20 Making a copy of all records of judgments, or papers, on file in his office for any party applying for same, with certifi- cate and seal, each one hundred words 20 Issuing a writ of scire facias and making copy of same 1 00 Taxing the bill of costs in each cause, with a copy of same. . 25 Issuing each license to an attorney, and recording the pro- ceedings thereon 5 00 Filing and recording the declaration of intention to become a citizen of the United States 2 00 Issuing certificate of naturalization 2 50 Where by agreement of parties one order is to apply to a num- ber of cases, and but one order is entered upon the minutes of the court, the clerk is entitled to a fee for only the one order. While entries may properly have been entered in several cases, yet if act- ually entered but in one case the clerk is entitled to the fee only for the judgment entry made. Where the venue is changed in a number of cases, and the order for the change is included in one entry upon the minutes, and in the transfer of the cases the clerk makes out a copy of the entries affecting each case, with proper cer- tificate, he is entitled to a fee for the certified copy and certificate in each case. One doing the labor for which fees are allowed to an officer is not therefore entitled to the fees of the officer, but only to reasonable compensation for the labor done. 1 i Hanrick v. Ake, 75 T. 142 (12 S. W. Rep. 818). :3, 734.] IT. 695 53. Fees of county judge. For each civil cause finally disposed of by the county judge, by trial or otherwise, lie is entitled to a fee of three dollars, to be I airainst the party cast in the suit. If the party cast in the suit has filed his oath of inability to pay costs during the progress of the cause, or is unable to pay costs, the county judge must be allowed by the county commissioners' court such compensation as may deem proper not to exceed three dollars for each state 7 34. Pees of clerks of county courts. rks of the county court are allowed the following fees: 2 Filing each paper $0 05 I>suing notices, including copies for posting or publication. . . H Docketing each application, complaint, petition or proceed- ing, to oe charged but once 10 i writ or citation, including copy thereof 50 . copy of any paper that is required to accompany any writ or citation, with certificate and seal, for each one hundred words 10 Issuing letters testamentary, of administration or guardian- ship .* Kaeh judgment or decree 50 When a judgment or decree exceeds two hundred words, an additional fee for each one hundred words in excess of two hundred of 10 Recording all papers required to be recorded by them in rela- tion to estates of decedents or wards, for each one hun- divd words 10 Administering oath to executor, administrator or guardian. . 10 Administering oath or affirmation in other cases, without cer- tificate and seal 1 ~> Administering oath or affirmation with a certificate and seal 25 Entering each order of the court approving -or disapproving a claim against an estate filing each paper, except subpoenas o"> Kach appearance, to becharged but once 1" Entering each continuance, except in estates 10 Kaeh sulipu-na Kach additional name inserted in each subpoena 1" Approving bond, except bond for costs 1 << i ring each witness 10 Swearing and impaneling a jury _'."> K' < eivingand recording a verdict _'."> A :!ii: damages in each case not tried by a jury Kach commission to take depositions 50 Takinir depositions each one hundred words l.~> Kach execution, order of sale, writ of po>.,-xMon, restitution or other writ not otherwise provided for 50 1 R S. 2449. 2 R. S. 2457. Other fees are allowed for services not pertaining to a suit. 696 COSTS OF SUIT. [ 735^. Recording return on any writ where such return is required by law to be recorded $050 Copies of interrogatories, cross-interrogatories and all other papers or records required to be copied by him, including certificate and seal, each one hundred words, when not otherwise provided for 15 Transcript in any case where appeal or writ of error is taken, with certificate and seal, eacn one hundred words 15 Each certificate to any fact or facts contained in the records of his office, with certificate and seal, when not otherwise provided for 50 Taxing bill of costs in each cause, with a copy thereof 25 There is a provision of the statute authorizing the clerk to charge in advance for filing or recording an instrument permitted or required by law to be recorded, but it does not include papers or instruments filed or recorded in suits pending in the county court. 1 For recording attachments and returns, under the act of 1889, the clerk may charge the fee allowed for recording deeds, to be paid by the plaintiff, and taxed as a part of the costs in the case in which the attachment issued and paid and collected as other costs. 2 735. Fees of sheriffs and constables. Sheriffs are allowed the following fees: Serving each original citation in a civil suit $1 50 Summoning each witness ... 50 Levying and returning each writ of attachment or sequestra- tion 2 50 Serving each writ of garnishment, injunction or other pro- cess not otherwise provided for 1 00 Taking and approving each bond, and returning the same to the proper court, when necessary 1 00 Indorsing the forfeiture of any bond required to be indorsed by him 50 Levying each execution 1 50 Returning each execution 75 Executing and returning each writ of possession or restitu- tion 3 00' Posting the advertisements for sale under execution, or any order of sale 1 00 Posting any other notices required by law not otherwise provided for 1 00 Executing a deed to each purchaser of re?.! estate under an execution or order of sale 2 00 Executing a bill of sale to each purchaser of personal prop- erty under an execution or order of sale, wnen demanded by the purchaser 1 00 For each cause tried in the district or county court a jury fee shall be taxed for the sheriff of ". 50^ For services in designating a homestead 2 00- l R S. 2459. * R. S. 4669. 736.] COSTS OF SLIT. 697 For traveling in the service of any civil process sheriffs and con- st aMes shall receive five cents for each mile, going and coming; if two or more persons are mentioned in the writ, he shall charge for tin- distance actually and necessarily traveled in the service of the- same. Collecting money on an execution or an order of sale, when the same is made by a sale, for the first one hundred dollars or less, four per cent.; for the second one hundred dollars, three per cent.; for all sums over two hundred dollars, two per cent. When the money is collected by the sheriff without a sale, one-half of the above rates shall be allowed him. 1 Whenever an attachment is levied upon real estate, the officer levying the writ must immediately file with the county clerk of the county or counties in which the real estate is situated a copy of the writ, together with a copy of so much of his return as relates to the land in said county. For such service he may charge a fee of one dollar, to be taxed and collected as other costs in the suit.* Constables, for all services performed by them in business con- nected with the district and county courts, are entitled to the fees, allowed sheriffs for the same services. 3 A sheriff, charging for service of process, can only rightfully charge for the distance actually traveled in any case; but he is en- titled to charge the amount specified in the statute for each writ,, though he may serve a number in making one trip. When two or more persons are mentioned in the same writ, he can charge for but one mileage. The fact that the sheriff, in executing process, may go in person a portion of the way towards the witness he is required to summon, and, before reaching him, may deliver the process to a deputy, by whom it is served and returned by mail,, will not affect the right of the sheriff to charge mileage for his re- turn trip. 4 736. Relaxing costs. When costs have been improperly taxed, the proper practice is for the party aggrieved to call, in some manner, the attention of the court to the matter, and demand of the clerk, after the judg- ment is entered, a bill of costs, duly itemized, and taxod by him as the law authorizes. The party can then move to have costs re- laxed, setting forth the proper items of costs, or he can move to strike from the bill the objectionable items. Unless some such pro- ceeding is had below, the appellate court will not afford relief, when applied for on appeal for the first time. 5 Where a mistake is made R a 2460. * R a 4869. > R S. 2465. ut the costs of the writ taxed against defendant Sullivan v. Kindred, 20 Rep. 150. 1 Rule 101, for D. & C. Courts. 2 Duren v. Railway Co., 86 T. 287 (24 S. W. Rep. 258). Caperton v. Wanalow, IS T. 125; Carroll v. Carroll, 20 T. 731. La Vega v. League. 2 Civ. App. 252 (21 S. W. Rep. 565). 5 Connor v. City of Paris, 87 T. 32 (27 S. W. Rep. 88). This suit was brought 1>y the city to foreclose a lien for the first instalment of a special assessment against a city lot, and for the first year's interest The assessment was p;t in ten instalments. The district court entered judgment foreclosing th for all the assessments, and the court of civil appeals reformed the jn.k'mrnt ami entered a judgment foreclosing the lien for the first assessment an- 1 .n. year's interest on the whole amount, with an order to sell the lot suhj. , t t. the in-talments. This was not a judgment for the same amount nor of the nature as specified in the statute. R. S. 1028. 6 Bailey v. Oliver, 9 S. W. Rep. 606. Where appellant defendant below, in- effectually calls the trial court's attention to an erroneous allowance of inter- -; in the judgment against him, costs will be taxed against the appellee though 702 COSTS IN THE APPELLATE CODKTS. [ 741, 742- calls the attention of the court to a defect in the judgment by rea- son of which it is not final, the costs of an appeal will be adjudged against the appellee. 1 On two successive appeals to the court of appeals, the first from a judgment by default, and the second from an excessive judgment, it was held that as appellee was in the wrong in both instances, he was properly charged with all the costs of the appeals, including the clerk's fees in the lower court for making out the transcripts. 2 741. Revision of errors. An error by the trial court in awarding costs must be brought to the attention of that court for correction, and must be assigned as error on appeal. 3 The proper proceeding is by a motion to retax the costs, or to strike out the objectionable items. 4 The failure of the trial court to tax the costs of an amended pleading properly will not be revised on appeal when no objection was made in the district court. 5 An objection that the judgment is against only some of the defendants for costs, and not also against a co-defend- ant, should be primarily made in the trial court, and presented on appeal by proper assignments ; 8 or that too large a part of the costs has been adjudged against a party. 7 742. Execution for costs; duty of sheriff or constable. When no motion for a rehearing is filed the judgments of the supreme court become final after fifteen days; and upon the rendi- tion of final judgment the clerk issues the mandate, provided the costs have been paid. 8 But the mandate will not be issued until the costs of the supreme court and of the court of civil appeals- have been paid. 9 Where no writ of error is taken from a judgment of a court of civil appeals and no motion for a rehearing is filed within thirty days after the decision or conclusion has been entered, the judgment itself is corrected and affirmed. Petri v. Neimeyer, 26 S. W. Rep. 266. 1 Burch v. Burch, 26 S. W. Rep. 828. 2 L & G. N. Ry. Co. v. Saul, 2 App. C. C., 716. Harris v. Cattle Co., 84 T. 674 (19 S. W. Rep. 869); Jones v. Ford, 60 T. 127; Wiebusch v. Taylor, 64 T. 53; Bridges v. Samuelson, 73 T. 522 (11 S. W. Rep. 539); Allen v. Woodson, 60 T. 651. 4 Allen v. Woodson, 60 T. 651; Morgan v. Haldeman, 20 T. 58; Stewart v. Crosby, 15 T. 513; Castro v. lilies, 11 T. 39. * Dalton v. Rainey, 75 T. 516 (13 S. W. Rep. 34). 6 Hill v. Smith, 6 Civ. App. 312 (25 S. W. Rep. 1079). "Torrey v. Martin, 4 S. W. Rep. 642. 8R, S. 976. 9 R. S. 984. On an application for a mandamus to compel the clerk to issue the mandate, it was held that he might withhold the mandate until the costs were paid, notwithstanding the party finally cast had prosecuted in forma pau- $eri8, he not being the party complaining. Dade v. Smith, 1 App. C. C., 701. 743.] COSTS IN THE APPELLATE COURTS. the mandate will issue on payment of the costs of that court, but not otherwise. 1 If the costs due in either court are not paid as required, the clerk is directed to issue execution therefor. When it issues from the supreme court, it must sj>ecify the costs due in each court, and a correct list of all the costs accruing in each court must be attached to the execution. 2 Where an execution issues from the court of civil appeals, it may be sent by mail to the proper officer for collection;* when it issues from the supreme court, it is provided that it shall be directed to the sheriff or any constable of the county from which the cause was removed, or to any county in which the person or persons liable under the execution, or either of them, may have property. It is made the duty of the officer to execute and return the execution under the same rules, regulations and liabilities as are provided for executions from the district court. 4 Executions issu- ing from either court must be returned within four months from their date. 5 If the officer fail or refuse to make a return within the required time, with the amount of the costs, if he has collected the same, or if he make a false or fraudulent return, the clerk may issue citation, returnable forthwith, requiring the officer to appear before the court and show cause, if he can, why he has not col- lected and returned the costs and execution. If he fail to show cause, the court may enter judgment against him and the sureties on his official bond for twice the amount of the costs, together with the cost of the proceeding. 6 743. Fees ot clerk of supreme court. The clerk of the supreme court receives the following fees: 7 Knit-rim: appearance of either party, in person or by attorney, to be charged but once $0 50 1 R a 1029, 1036. 2 R S. 984. Under the statute applicable before the organization of the courts of civil appeals, the execution issued from the supreme court only for the costs of that ' >urt, and it was held that the legal effect of a judgment in the supreme court, which provided that "appellants recover of appellee all costs in this be- half expended," was a recovery of judgment for all costs of appeal in both the supreme and district courts. Under such a judgment execution issued from the supreme court for costs of appeal incurred in that court, whilr the costs of til-- transcript and all other costs of appeal were collected under execution is- suing from the district court. Bonner v. Wiggins, 54 T. 149. The issuance of an execution follows as a necessary legal consequence from tip- rendition of a judgment for costs by the supreme court. Schmidt v. HutF. 28 S. W. Rep. 1053. RS. 1038. RS.984 R S. 985. 1087. R S. 986, 1038. Woodhouse v. T re vino, 2 App. C. C, 505, is a case under t he Statute. R a 2445. See note to g 744, infra. 704 COSTS IN THE APPELLATE COURTS. [ 744. Docketing each cause, to be charged but once $0 50 Filing the record in each cause 50 Entering each rule or motion 25 Entering the order of the court upon any rule or motion, or entering any interlocutory judgment 50 Administering an oath or affirmation without a certificate. . . 15 Administering an oath or affirmation and giving certificate thereof, with seal 25 Entering each continuance 20 Entering each final judgment or decree 1 00 Each writ issued 1 00 Making out and transmitting the mandate and judgment of the supreme court to any inferior court 1 50 Making copies of any papers or records in their offices, includ- ing certificate and seal, for each one hundred words 15 Recording the opinions of the judges, for each one hundred words 20 Taxing the bill of costs in each case with copy thereof 50 Issuing attorney's license 5 00 For every service not above provided for the clerk may receive such fees as may be allowed by the court, not to exceed the fees allowed for services requiring a like amount of labor. 1 744. Fees of clerks ol courts ol civil appeals. The clerks of the courts of civil appeals are allowed, as a com- pensation for their services, the following fees: 2 Entering appearances of either party, in person or by attor- ney, to be charged but once $0 50 Docketing each cause, to be charged but once 50 Filing the record in each cause 50 Entering each rule or motion 25 Entering the order of court upon any rule or motion, or enter- ing any interlocutory judgment 50 Administering an oath or affirmation, without a certificate. . 15 Administering an oath or affirmation and giving a certificate thereof with seal 25 Entering each continuance 20 Entering each final judgment or decree 1 00 i R. S. 2446. 2 R. S. 1011; Acts 1893, p. 164. In the Revised Statutes of 1895, article 2445 ( 743, supra, the article which originally prescribed the fees of the clerk of the supreme court) purports to prescribe the fees both of the clerk of the supreme court and the clerks of the courts of civil appeals. The article differs in sev- eral particulars from the above, and it is probable that, by virtue of section 20 of the Final Title of the Revised Statutes, the above article 1011 will be held to express the intent of the legislature. By the arrangement referred to, the clerks of the courts of civil appeals are given the benefit of article 2446 (the general provision at the end of 743, supra), which heretofore has applied only to the clerk of the supreme court. There is no such general provision in the act of 1893, and there seems to be no good reason why the clerks may not avail them- selves of the benefit afforded by the arrangement. 15.] COSTS IN THE APPELLATE COURTS. 705 Kadi writ issiiiMl ....................................... $1 00 Making out ami transmitting the mandate and judgment of the court to any inferior court ......................... 1 50 Making copies of any papers or records in their offices, includ- ing certificate and seal, for each one hundred words ...... 10 Recording the opinions of the judges, for each one hundred \\onls.. .............................................. 15 Taxing the bill of costs in each case ....................... 50 Filing each brief, or other paper necessary to be filed ....... 10 For certificate and seal, where same is necessary ........... 50 i ding sheriff's return on execution .................... 50 For issuing copies of each notice ordered by court ......... 5U = 745. Report by clerks of courts of civil appeals. It is the duty of each clerk of a court of civil appeals, within ten i lays after the first day of January and July, to make a report to the court under oath, showing the amount of costs collected by him, during the preceding six months, and also the cases in which they were collected, and the disposition made of such costs. The report must be filed and recorded in the minutes of the court. 1 1R&101Q. 45 CHAPTER LI. ARBITRATION UNDER THE STATUTE. 746. Of the right to arbitrate. 747. Agreement to arbitrate, how made; where filed. 748. Submission must conform to the statute. 749. Notice of day of trial; process for witnesses; organization; continuance; trial; order of argument. 750. Trial to be governed by rules of law and equity. 751. The award. 752. Umpire chosen, when; proceed- ings. 753. Right of appeal 754 Validity and effect of the award. 755. An award will be set aside for fraud, mistake, etc. 756. Penalty for refusing to proceed. 746. Of the right to arbitrate. The constitution makes it the duty of the legislature to pass such laws as may be necessary and proper to decide differences by arbi- tration, when the parties shall elect that method of trial. 1 All per- sons desiring to submit any dispute, controversy or right of action to arbitration have the right so to do in accordance with the pro- visions of the statute. 2 Doubts have been expressed whether the statute was intended to apply to and embrace matters of difference between parties on which suit had been commenced ; 3 but in a later case a judgment upon an award was sustained without noticing the doubt suggested. 4 The provisions of the statute apply to corporations as well as natural persons, and executors, administrators and guardians may consent to an arbitration of any controversy or matter of dispute relating to or affecting their respective trusts, with the consent of the court in which such administration or guardianship is pending. 5 1 Const, art. XVI, 13. This provision is found in all the constitutions of Texas, as a republic and as a state. 2R.S. 47. 3 Owens v. Withee, 3 T. 161; Cox v. Giddings, 9 T. 44 4 Taylor v. Harris, 16 T. 574 And see McHugh v. Peck, 29 T. 141. 8 R. S. 60. A partner has the power to submit partnership affairs to arbitra- tion, and when he does so his action is binding on the firm. Alexander v. Mul- hall, 1 U. C. 764. Where a member of a firm signs an agreement for arbitration for himself and also in behalf of his firm, and the arbitrators determine the identical matters submitted, it is no ground of objection by the adverse party that the award is in favor of such individual member alone. Gilbert v. Knight, SfApp. C. C., 315. An agreement to arbitrate by minors, followed by an arbitration, is not void; , it at most is only voidable. Chambers v. Ker, 6 Civ. App. 373 (24 S. W. Rep. 747, 748.] ARBITRATION UNDER THE STATUTE. 707 One of several matters in controversy in a pending suit may bo sub- mitted to arbitration. 1 747. Agreement to arbitrate, how made; where filed. Persons desiring to submit a matter to arbitration must sign an agreement in writing, as plaintiff and defendant, to arbitrate their differences or matters in dispute, and in such agreement each party shall name for himself one arbitrator, who must be over the age of twenty-one years, not related to either party by consanguinity or affinity, possessing the qualifications of a juror, and who is not in- terested in the result of the cause to be submitted for his decision. 1 If the matter in dispute exceeds $200, exclusive of interest, the agreement must be filed with the clerk of the district or county court of the county in which the controversy arose, according as the amount involved or matter in dispute may come within the ju- risdiction of one court or the other. 3 If the agreement is made * - pending suit, it must be tiled in the proper cause ; and if filed dur- ing the sitting of the court, an order should be made for referring the cause. 4 748. Submission must conform to the statute. Parties intending to avail themselves of the statute must sub- stantially pursue its provisions; and if there is any material vari- ance therefrom, the award of the arbitrators cannot be made the judgment of the court, under the statute. 5 Where six arbitrators were chosen, instead of two, as provided by the statute, and the agreement contained a. penalty by which its performance was to be enforced, it was held that the proceedings were not in conformity with the statute. 6 And so, where by the agreement four arbitra- tors were named, and it was stipulated that any three of them might act, and, in case they should fail to act, the award was to be made by such arbitrators as might be agreed upon by the parties, it was held that the award could not be enforced as a statutory award. 1 A person claiming a tract of land in his own right could not submit the claims of his minor children to said land to arbitration by signing for them an ment to submit the matter to arbitration. Their interests were adverse to his. Fortune v. Killebrew, 86 T. 17:.' r.>:{ S. \V. Rep. 976). The submission by thu mother of matters concerning an estate in which she and her minor children have a common interest will not estop the minors. Snow v. Walker, 42 T. 154. iDoekery v. Randolph, 30 S. W. Rep. 271. R.S.4a R S. 49. If the amount in dispute is $200 or less, exclusive of interest, such agreement shall be filed with some justice of the peace of the county in which the defendant resides or in which the controversy arose. R S. 49. Taylor v. Harris, 16 T. 574; McHugh v. Peck, 29 T. 14L Alexander v. Witherspoon, 80 T. 29 L Owens v. Withee, 3 T. 16L 'Cox v. Giddings, 9 T. 44, 70S ARBITRATION UNDER THE STATUTE. . , [ 749. But where the agreement provided for the submission to three ar- bitrators, one to be chosen by each of the parties, and the third to be selected by these two, it was held to be a substantial compliance with the statute ; and it was further held that, although an agree- ment to arbitrate does not expressly show that the parties intended to pursue the statutory remedy, yet, if their agreement does not depart in substance from the provisions of the statute (although it fail in several respects, in matters of form, to conform to the stat- ute), and the parties afterwards cause the agreement to be filed in court and proceed thenceforward under the statute, the award will be good as a statutory award. 1 A substantial compliance with the statute is all that is required, and an agreement to arbitrate, which describes the parties, the sub- ject-matter, selects arbitrators, and provides for the selection of an umpire, is sufficient. Filing the agreement with the clerk before the arbitration and his presiding at the trial may be waived. The agreement may be filed with the award. 2 749. Notice of day of trial; process for witnesses; organization; continuance; trial; order of argument. "When the agreement is filed, the clerk must forthwith designate a day for the trial of the cause, not less than two days thereafter, and must issue process for such witnesses as either party may de- sire, returnable on the day fixed for trial. 3 On the assembling of the arbitrators on the day of trial, the clerk must administer an oath to each. 4 After being sworn the arbitrators may, for good 1 Forshey v. Railroad Co., 16 T. 516. For a case in which a judgment entered upon an opinion of an umpire selected by the attorneys of the parties was held not a judgment upon an award, but by consent, and therefore a waiver of errors, see Townsend v. Moore, 13 T. 36. 2 Alexander v. Mulhall, 1 U. C. 764. The agreement in this case was for the arbitration of a matter on which suit had not been commenced. 8 R. S. 50. The statute does not prescribe the mode by which the appoint- ment of the day of trial shall be authenticated, or made known to the parties, . nor does it require the clerk to make it a matter of record. Offeciers v. Dirks, 2 T. 468; Hall v. Little, 11 T. 404. The right to have a day assigned by the clerk may be waived by the voluntary appearance of the parties, and their submit- ting their cause to the arbitrators without objecting. It seems that the statute is directory, and the proper time to raise the objection that no day was ap- pointed is when the arbitrators are about to proceed with the trial, if the par- ties be present; if not present, then the objection may be taken in court. Hall v. Morris, 30 T. 280. When the record does not show affirmatively that the par- ties had notice of the time and place of hearing, and exception was not taken in court to the want of it, the appellate court will presume that notice was duly given. Hooper v. Brinson, 2 T. 185; Hall v. Little, 11 T. 40-1; McHugh v. Peck. 29 T. 141. 4 R. S. 51. The oath must be substantially as follows: " You do solemnly swear (or affirm) that you will fairly and impartially decide the matter in dispute be- tween A. B., the plaintiff, and C. D., the defendant; according to the evidence 750.] ARBITRATION UNDER THE STATUTE. cause shown, continue the hearing to some other day, anil during the progress of any trial, for like good cause, may adjourn the same over to some other time. 1 The clerk must administer the necessary oath to the witnesses, and the trial of the cause will proceed in like manner with trials in the courts of this state, the plaintiff holding the affirmative and en- titled to open and conclude the argument. 2 Although the statute does not require the clerk to enter his acts of record, it would be the better practice for him to certify, under his hand and seal, the proper performance of the acts devolved upon him, viz.. the designation of the day of trial, the administra- tion of the oath to the arbitrators and witnesses, and the appoint- ment of an umpire, as an}' substantial deviation from the require- ments of the statute in these respects would vitiate the award. 1 750. Trial to be governed by rules ot law and equity. The arbitrators are invested with the functions of a common-law and equity judge and a jury, and may make their award accord :nir to equity and conscience, without regard to the strict rules of law. either as respects evidence or the rights of parties, unless it be ex- : v stipulated in the agreement that the parties shall be entitled to all legal defenses. 4 In most cases, however, it is expedient to observe the ordinary rules of evidence and law; and, therefore, the proceedings should in general be conducted as in a court. The arbi- trators may, and in most cases should, require from the parties a reciprocal statement, showing what items are admitted or disputed ; and may, when they deem it necessary, examine the parties them- selves.* adduced and the law and equity applicable to the facts proved, so help you God." An agreement to arbitrate contemplates that the arbitrators and umpire shall be sworn, and an award made by one arbitrator, and an umpire who was not sworn, was held not to be a statutory award, and not entitled to be err as the judgment of the court. Where a city is a party to the proceeding, it seems that the city attorney, without special authority, would not have the au- thority to waive the requirement of the statute. Anderson v. City <>f Ft. \Vorth, :} T. 107 (18 S. W. Rep. 4-S3). A certificate of the clerk that the arbitrator- sworn as required by law was held sufficient. Offeciers v. Dirks. -,' T. 468. 1 K. S. 52. Going into tin- investigation without giving proper notice to the parties, or refusing to allow sufficient time to prorur.- tin- necessary t --tun. my. would be such improprieties on the part of arbitrators as would vitiat.- tli award. Green v. Franklin, 1 T. 497; Mcllugh v. Peck, 29 T. HI. 1RS.58. 'Green v. Franklin, 1 T. 497. 4 R. S. 51. The arbitrators may disregard a strict legal defense, ao that of usury. Edrington v. League. 1 f. 04; 2 Chit. Gen. Pr. 76; Kyd on Awards, 851; F<.r-iiey v. Railroad Co., 16 T. 516. * R. S. 53. It was oUj.-rtt-u ti an award of arbitrators that the defendant had filed no answer, and that the plaintiff had no notice of the offsets and claims of 710 ARBITRATION UNDER THE STATUTE. [ 751. 751. The award. After hearing the evidence and arguments, if any, the arbitrators agree upon their award and reduce it to writing, specifying plainly their decision, and file it with the clerk. At the succeeding term of the court the award is entered and recorded as the judgment of the court, with like effect as other judgments of said court, and upon which execution may issue as on ordinary judgments. 1 The arbitrators may award the costs to either party, and if their de- cision or award is silent as to costs, they are to be taxed equally against the parties. 2 Where an award is made during a term of court, judgment can- not be entered thereon until the next succeeding term, except by consent of parties. 3 The object of the statute is to give time to enter objections ; and the award is not vitiated because not made the judgment of the court at the first term after it was rendered.* If no right of appeal is reserved, the award is made a judgment of the court as a matter of course, unless the proceedings appear not to have been in conformity with the statute. 5 When an award of arbitrators, rendered under an agreement to arbitrate, reserving the right to appeal, is made the judgment of the district court on motion, without objection, and no application for appeal made, it would seem that the judgment of the district court should be af- firmed on appeal in the absence of facts shown upon the face of the the defendant, which were acted upon and allowed by the arbitrators. It is said by the court that pleadings are not required in a controversy before arbitrators. It is also said that if the appellant was surprised by any matter of evidence in- troduced by the appellee before the arbitrators, and he was not prepared to meet the claim presented by the appellee, but believed he could do so by having time, he should have applied to have the decision of the arbitrators postponed till he could procure testimony to rebut the claim improperly set up by the defendant. If, on a proper application by the appellant for time to procure and submit to the arbitrators testimony, his application had been denied, and he should state such facts as to show that injustice had been done by denying his request, such facts might present a case authorizing the court to reject the report. But the case was decided on other grounds. McHu .i v. Peck, 29 T. 141. Where suit i has not been commenced at the time an agreement to arbitrate is made, neither pleadings nor process is necessary. Alexander v. Mulhall, 1 U. C. 764. 1 R. S. 54. 2 R. S. 58. a Alexander v. Witherspoon, 30 T. 291. Where the parties did not reserve the right of appeal in the submission, and the district court refused to enter the award, the supreme court examined the facts, and, finding that the award was sustained by the evidence, reversed the judgment and entered judgment upon the award. King v. Grey, 31 T. 22. * Hall v. Morris, 30 T. 280. 5 Officiers v. Dirks, 2 T. 468; Schultz v. Lempert, 55 T. 273. Presumptions which always exist in favor of the regularity and correctness of judgments are admitted to show the consent of parties to a judgment upon an award. Edring- ton v. League, 1 T. 64. 7.")3.] ARBITRATION- UNDER THE STATUTE. 711 award or proceeding, some irregularity or deviation from the stat- r some - f authority exercised by the arbitral- 752. Umpire chosen, when; proceedings. If the arbitrators cannot agree they must select an umpire with like qualification! as themselves; or in case they disagree in the choice of an umpire, the clerk must select one. lie must be sworn. in like manner as the arbitrators, and the cause may be tried anew h time as the board of arbitration thus constituted may te, with like proceedings as to the making up and tiling of the award as is prescribed by the statute.- It is no objection to an award as a statutory award that by the terms of the agreement the two arbitrators appointed a third man, and all three proceeded to ligate the cause in the first instance. 1 753. Right of appeal. If a right of appeal is not expressly reserved in the original agree- ment to arbitrate, no such right will exist, but the decision of the arbitrators will be final. If such right is reserved, and either party appeal from the decision or award, he must file his written .application to that effect with the clerk, on or before the return day of the term of the court next thereafter. 4 "When the applica- tion is filed it must be noted on the docket of the court, and the opposite party served with a citation, as in ordinary cases of suit by petition. I'pon return of service upon the opposite party, the -rands for trial de nova as in ordinary cases." 1 When a right to appeal is reserved in an agreement to arbitrate under the statute, the arbitration becomes practically nothing more than an experimental attempt to satisf} 7 both parties, if there is timely application for appeal and citation properly served. In such > stands for trial dt noco as if no agreement to arbi- trate had been made. 6 ultz v. Lerapert, 5 T. 273. In an action involving disputed accounts and cross-account. s, it appeared from the pleadings that there was a dispute be the parties as to what were the real accounts in issue. Upon a submission of a use to arbitration and a motion to enter judgment on the upon a proper refusal to enter such judgment, it was held that the court also properly refused to send the matter back to the arbitrators. Where proceea ings under an arbitration are not in compliance with tin- statute, the refusal of art to enter judgment upon an award in a case not pending before it is not error. Where, after a consent to arbitration on disputed accounts and cross-accounts, the plaintiff mtnwluces matters not invulvi-,1 in the original r<>|M-rly refuse to enter judgment on the award. Thomp- S. W. Rep. 895. 2R. S. 55; King v. *Schultz v. Lempert, 55 T. 273. 712 ARBITRATION UNDER THE STATUTE. [ 754; 754. Validity and effect of the award. Every presumption not contradicted by proof will be admitted to support an award ; while much will be conceded to the discretion of the arbitrators, irregularities calculated to injure either party will not be tolerated. 1 Awards are regarded with peculiar favor,, and in the absence of fraud, mistake or misconduct are held final and conclusive as to all matters submitted in the agreement. 2 It is no valid objection to an award that it is bad in a point not affect- ing the parties, if the good portion be separable from the other, and is complete in itself. 3 An award in excess of the authority of the arbitrators is void unless the matter in excess is such as may be disregarded and a valid award left standing. The power conferred upon a court to enter a judgment upon an award in a case not pend- ing before it is purely statutory. It is not a proceeding according- to the course of the common law. It is neither a suit at law nor a case in equity. There is nothing for the court to hear and deter- mine except the incidental questions which may grow out of the award itself ; that is to say, whether or not the arbitrators have impartially discharged their duty under the powers conferred upon them by the submission, and in the manner pointed out by the- statute. So far as the merits of the original controversy are con- cerned, the duty of the court is ministerial rather than judicial; that is, it is merely to enter judgment in accordance with a legal and proper award. In cases in which an extraordinary power of this character a power simply to enter judgment in a case not brought before it by petition, complaint or suit, in accordance with the essential principles of the common law, and upon the finding of a distinct tribunal of the parties' own selection is conferred by statute upon a court of general jurisdiction, the jurisdiction should be treated as special; the statutory authority should be substantially pursued; and if that authority be exceeded, the judgment entered upon the award should be held void. The power of the court under the statute to enter the judgment originates in the agreement to submit to arbitration, and is confined to the authority to enter the judgment upon the issues submitted and in accordance with the terms of the submission. If there be no agreement binding upon all the parties to the submission, and especially if there be neces- sary parties to a suit to determine the issues who do not join in the 1 Green v. Franklin, 1 T. 97. 2McHugh v. Peck, 29 T. 141; Gilbert v. Knight, 3 App. C. C. f 316; Schultz v. Lempert, 55 T. 273; Jones v. Frosh, 6 T. 202: Aycock v. Doty, 1 App. C. C., 223. All objections must be made in the court below, and the facts must appear by a statement of facts or bill of exceptions in order to obtain a revision of the ruling. McHugh v. Peck, 29 T. 141; Hall v. Little, 11 T. 404; Payne v. Metz, 14 T. 56. 'Schultz v. Lempert, 55 T. 273. 755.] ARBITRATION UNDER THE STATUTE. 715 submission, or if the arbitrators fail to determine the issues, and at- tempt to decide matters not submitted to their determination, the award is void, and any judgment entered upon it must necessarily fall with it. 1 55. An award will be set aside for fraud, mistake, etc. An award will be set aside, although the right of appeal has not been reserved, for irregularities which operate to the prejudice of cither of the parties, and where there has been fraud in the party, or partiality, misconduct or gross mistake on the part of the arbi- trators. It is not every error or mistake of law or fact which will warrant the setting aside of an award: in the absence of fraud or gross mistake it has the conclusive effect of a judgment, and can only be annulled for the same causes for which a judgment may be set aside. 2 The proceedings to set aside an award may be by mo- Fortune v. Killebrew, 86 T. 173 (23 & W. Rep. 976). And it is held that recitals of consent of parties in the judgment entry upon an award iiled upon submis- sion outside the court do not have the conclusive effect as if the reference to arbitrators had been made in a suit pending with all parties before the court. While an award of arbitrators may be binding, though a ministerial authority be reserved therein to be thereafter exercised, such as the correction of errors of computation apparent from the award itself, yet if, on its face, it contains the declaration by the arbitrators that they will correct "any errors that may be discovered," it is void. Hooker v Williams, 60 T. 524 sufficient if the arbitrators were sworn, and the award is signed by one of the arbitrators originally selected and the umpire. Alexander v. Mulhall. 1 U. C. 764 Where the agreement does not specially provide that the parties should be present when the award is rendered, their absence does not invalidate the au-ani. Wiley v. Heard, 1 App. C. C., 1203. Where the submission does not require a statement in the award of the con- clusions of the arbitrators, but simply that they shall examine the mutual claims of the parties and find out how much is due one of them from the other, an award stating an amount found to be due one of the parties is sufficient. Gill v. Bickel, 30 S. W. Rep. 919. 'Schultz v. Lenopert, 55 T. 273; Payne v. Metz, 14 T. 56; Forshey v. Railroad Co., 16 T. 516; Shulte v. Hoffman, 18 T. 678; Bowden v. Crow, 2 Civ. App. 591 W. Hep. 612); Gilbert v. Knight. 3 App. C. C., g 816. In a suit to set aside a statutory award, charges of gross mistake in allowing an item of damage, and that the award was based on perjured statements made to the arbitrators, each sufficient, if sustained, to set aside the award, provided the party complain- ing was not guilty of negligence in failing to have the wrongs righted before rhitratora. Aycock v. Doty, 1 App. C. C.. 221. Charges of fraud, partiality and mistake in making an award are not sus- tained by evidence relating to the merits of the controversy between the part irs as though no award had been made, and which fails to show fraud or partiality by the arbitrators, or any mistake of fact by them of a material character. Bowden v. Crow, 2 Civ. App. 591 (21 S. W. K-p. rtl2). When suit is brought upon an award and the defendant seeks to attack it on ground of fraud or mistake or other reasons, he must plead such defenses; oth.-r- wi.se the facts or items acted upon in the arbitration cannot be considered. Chambers v. Ker. r. Civ. App. :;?:{ (24 S. W. Rep. 1118). Although arbitrators- were mistaken in their construction of a lease on which the rights of parties ARBITRATION UNDER THE STATUTE. [^ 756. tion or by petition. The grounds relied on should be distinctly set forth, and all not specially set down will be regarded as waived. 1 They should be verified by the affidavit of the party, and tiled within the time allowed for giving notice of appeal, 2 unless the application is brought within the equitable rules governing petitions for a new trial made after the expiration of the term. If the award is set aside, and the case is one for judicial cognizance, the court, having obtained jurisdiction, should proceed to a final adjudication of the rights of the parties. 3 In a proceeding to set aside an award the entire controversy should be submitted to the jury under proper instructions the grounds for vacating the award, and also the merits of the case. If the jury find that the award should not be set aside they proceed no further; otherwise they pass upon the merits of the case. 4 "Where objections are filed to an award, questions of fact involved in such objections are to be tried by the court without a jury. 5 756. Penalty for refusing to proceed. After an agreement to arbitrate is filed as prescribed, the parties are bound to that mode of trial under the following penalties, to wit : The agreement may be pleaded in bar to any suit there- after brought by a plaintiff in such agreement for the same cause of action, when such plaintiff has refused to proceed under the agreement ; and may be pleaded in bar to any right claimed or de- fense set up by a defendant in such agreement who has refused to proceed thereunder, where such right or defense existed at the time of filing the agreement. 6 depended, unless the mistake was gross and palpable the award pleaded in a suit will be sustained. Moore v. Jones, 25 S. W. Rep. 987. 1 Forshey v. Railroad Co., 16 T. 516. A plea to set aside an award is insuffi- cient if it fails to specifically and distinctly set out the fraud, misconduct or mistake of the arbitrators complained of. Alexander v. Mulhall, 1 U. C. 764; Bowtlen v. Crow, 2 Civ. App. 591 (21 S. W. Rep. 612). 2 Payne v. Metz, 14 T. 56. 8 Payne v. Metz, 14 T. 56; Johnson v. Cheney, 17 T. 336. 4 Bowden v. Crow, 2 Civ. App. 591 (21 S. W. Rep. 612); Mitchell v. Love, 39 T. 349. 6 Shulte v. Hoffman, 18 T. 678. In such a case it is not necessary for the oppo- site party to file an answer. The courts allow matters to be pleaded to set aside an award upon the hear- ing of the motion to enter it as a judgment. Alexander v. Mulhall, 1 U. C. 764. Where suit is brought to set aside an award, and it is pleaded that the party in whose favor the award was rendered is insolvent, setoffs pleaded, which were - not considered and determined by the award, should be allowed against the judgment to be entered upon the award. Aycock v. Doty, 1 App. C. C., 223, nd cases cited. R. S. 59. CHAPTER LIL ARBITRATION AT COMMON LAW. Agreement, how made. i 759. Authority of arbitrators. Award must pursue agreement. | 760. Award, how enforced. 757. Agreement, how made. "iiintr in the statute on arbitration is to be construed as af- fecting the existing right of parties to arbitrate their differences in. such otlu-r mode as they may select; 1 the statutory remedy is cumu- lative. 2 The agreement to arbitrate may be either verbal, in writ- ing not under seal, by specialty, or by rule or order of a court in which an action is pending; but the submission cannot be made a rule of court unless it be made in an action pending. The statute having directed the mode in which the award of arbitrators can be summarily enforced, the consent of the parties cannot give the court jurisdiction of the matter in any other mode; but, if the court al- ready has jurisdiction of the case, it has the authority to enforce any agreement of the parties made therein. 3 Where a matter is submitted to arbitrators pending suit, and the proceedings are not such as to authorize a judgment on the award under the statute, the award should be sustained as a common-law award if the proceedings are not otherwise objectionable. 4 iR.S.61. 2 Owens v. Withee, 3 T. 161; Cox v. Giddings, 9 T. 44; Aspley v. Thomas, 17 T. 2 Arch. Pr. 322; 2 Chit. Gen. Pr. 79. See Stephenson v. Price, 30 T. 715. Rule 47 does not forbid an oral agreement to arbitrate the matters in litigation out- side of the pending suit. An oral submission to arbitration, when not in con- ilict with the statute of frauds, is binding in this state, as well as at common law, and the right extends to pending suits. Faggard v. Williamson, 4 Civ. App. 337 (23 S. W. Rep. 557). *Dockery v. Randolph, 30 8. W. Rep. 271. When, during the progress of a suit actually pending, the parties, in writing, agree to have their rights to land determined by one man named by them, by whose award they agree to abide, though the arbitration cannot be sustained as one made under the statu; the courts will give full effect to an award thus made. Myers v. Easterwood, 60 T. luT. A submission by a guardian of his ward's liability is only voidable: if the re- sult is beneficial to the ward, he may avail himself of it as a defense. Wiley v. Heard, 1 App. C. C., S rjul. Where a recovery of land is based on the report of a referee to whom the par- ties had agreed to submit the question of the true location of a line, with a stipulation that the referee should examine that line, an an-\vi>r charging that the referee did not examine the line is good on demurrer; nor is the fact mate- 716 ARBITRATION AT COMMON LAW. [ 758, 759.. 758. Award must pursue the agreement. The rules governing proceedings under the statute will in gen- eral apply to arbitration at common law. The power of the arbi- trators is dependent upon the terms of the agreement, which must be strictly pursued, even in respect of slight formalities. When the submission was to six arbitrators, and the award was signed by five only, it was held that it was null and void. 1 When the submission required an award under hand, and the award was not signed, though under seal, it was held to be void. 2 So, if the award was required to be under seal, and it be only signed; 8 and even where the award was to be made by four arbitrators, or any three of them, and the award purported to be made by the four, and was only signed by three, it was held void. 4 But where an award, after reciting that A. B. and C. D. had been appointed arbitrators^ and that they had appointed E. F. umpire, proceeded : " We, the said arbitrators, do award," etc., and was signed by the two arbi- trators and the umpire, it was held that the latter, by signing the award, had adopted the language as his, and that the arbitrators joining in the award would not prejudice. 5 759. Authority of arbitrators. The arbitrators may designate their own time of meetings ana adjournments. As their proceedings are without the authority of any statute, having no force except by the agreement and consent of the parties, they cannot be sworn; neither is there any process for compelling the attendance of a witness ; 6 consequently when the parties disagree as to the facts, and rely for their proof upon the testimony of witnesses, the only effectual mode of proceeding is under the statute. And, indeed, in all respects is the statutory proceeding preferable, in providing that the arbitrators shall act under oath, insuring the attendance of witnesses, and making the decision of the arbitrators final or subject to revision at the option of the parties. 7 rial that the report of the referee shows that he made the examination as re- quired. An objection to the report that the referee could only act in the event another first chosen declined to act, and that his report or award could not be received until it was shown that the one first selected declined to act, comes too late when made for the first time on appeal. An allegation that a referee refused to hear evidence offered by one of the parties, without stating the materiality of the evidence, and what it was, is bad on exception. A report made by a referee stands upon the same footing as the verdict of a jury. Elder v. McLane, 60 T. 383; McHugh v. Peck, 29 T. 141. 1 Owens v. Withee, 3 T. 161. 2 2 Mars. 304; 3 M. & S. 512. s 2 Chit Gen. Pr. 105. <1 Sim. &Str. 6 9 Bar. & C. 407. * 2 Chit. Gen. Pr. 98. 'R S. 50, 51, 56, 57. 760.] ARBITRATION AT COMMON LAW. 717 760. Award, how enforced. If the award is made under a rule of reference by the court, it can be enforced by the judgment of the court in accordance with the agreement of the parties. 1 If the agreement does not provide for making the award the judgment of the court, or if it was not made pending an action, it can only be enforced by a suit for the recovery of the amount of the award as liquidated damages. When either party refuses to proceed, the remedy of the party aggr; is by an action upon the agreement. 2 1 Owens v. Withee, 3 T. 161. 8 Swift v. Fans, 11 T. 18. A party will not be heard to complain that the ar- bitrators overlooked certain items of damage, where the oversight is attribu- table to hi? own negligence in calling attention to the matter. H. & T. C. Ry. Co. v. Newman, 2 App. C. C., 349; Rector v. Hunter, 15 T. 380. Parties selected one arbitrator, and directed him to examine an injured horse and decide whether he was permanently injured, and it was alleged that one of the parties informed him as to the ownership of the horse, and for what purpose the ex- amination was made, contrary to the agreement It was held that this, if true, avoided the award. Wiley v. Heard, 1 App. C. C., 1805. CHAPTER LIII. SUBSTITCTTION OF LOST RECORDS AND PAPERS. 761. Supplied on motion. 763. Requisites of motion. 763. Procedure : admission and proof of correctness of copy; right of adverse party. 764. Substitution by consent of par- ties. 765. Lost judgments supplied. 761. Supplied on motion. "Whenever the records and papers of a cause, or any part thereof > may be lost or destroyed, either before or after the trial, they may be supplied by either party, on motion before the court, upon three days' notice to the adverse party or his attorney. 1 The destruction of papers does not of itself take a cause out of court, but an order to that effect must be entered up. It is pri- marily the duty of the plaintiff to make the substitution, as it is to his interest that the cause should proceed. 2 The order substituting lost papers must be made upon competent evidence. 3 The statute is cumulative in its character, and does not furnish the only mode by which lost depositions or other lost evidence of a like character may be substituted. Evidence of a witness taken by deposition, incorporated in a statement of facts, and signed by op- posing counsel, the deposition being afterwards lost, may be used on a subsequent trial between the same parties, it being shown that the witness, though still alive, has become blind. 4 Lost judgments and executions may be supplied, by parties to the suit in which they were rendered or issued, by motion under this statute; the provisions of article 4594 et seq. of the Revised Statutes are cumu- lative, and the remedy is given to parties to the suit and others who may be interested. 5 An order supplying a lost bill of exceptions, made at a term sub- sequent to that at which final judgment was rendered, and without notice to the adverse party or his attorney of the motion to supply 1 R. S. 1498. 2 Bender v. Lockett, 64 T. 566. 3 Bowles v. Glasgow, 2 U. C. 714 4 Houston v. Blythe, 60 T. 506. And see Dwyer v. Bassett, 1 Civ. App. 513 (21 S. W. Rep. 621). * Hayden v. Dunaway, 29 S. W. Rep, 529. '53.] SUBSTITfTIOX OF LOST RECOBDS, ETC. 719 the lost paper, is of no effect. Such substituted paper will not be considered on appeal. 1 5 762. Motion, requisites ot. A motion to supply lost papers must be in writing, signed by the party or his attorney, and verified by affidavit. It must state the loss or destruction of the record or papers, and must be accom- panied by certified copies of the originals, if they can be had, and if not, then substantial copies thereof, as near as may be. 1 A lost pleading cannot be substituted by an amendment. The rules require that all amendments, with the exception of trial amendments, shall be substituted for some previous pleading. To determine whether or not it is such substitute, it is necessary that the court should have access to the former pleading. If pleading could be supplied simply by amendment, without affidavit or cer- tificate as to the lost paper, the statute would be in effect a nullity. 1 Where a party on appeal relies upon the contents of a lost pleading to show error in the rulings below, he must resort to the proper remedy to substitute such lost pleading. 4 Lost depositions may be supplied.* A motion to substitute a lost judgment and executions, which fails to set out a copy or copies of the record, may be amended, without reference to whether such amendment would be allowed by the rules prescribed by the supreme court or not. "Where the motion contains all the information necessary to enable the court to grant relief, copies of the record required by the statute muv be 1 with. It is sufficient if the substantial parts of the lost record be stated in the body of the motion.' "63. Procedure; admission and prool oi correctness 01 copies; right of adverse party. If the adverse party admit the correctness of the copies furnished bv the applicant, and the court be satisfied that they are correct copies in substance of the originals, an order will be made substi- tuting such copies for the originals. If their correctness be n- nutted, or if the court do not find them to be correct, the parties must submit their respective statements to the judge, and he will hear proof as to the contents of such lost records and papers, and ct copies thereof must be made under the direction of the judge. The adverse party may, in the same proceedings, supply any other portions of such records and papers desired by him. 7 i Harvey v. Carroll, 72 T. 63 (10 S. W. Rep. 334> R. a 1499. 'Newman v. Dodson, 61 T. 91. See Rule 13. Strauber v. Waller. 2 U. C. 622. s Jury v. Shearman. 2 U. C. 201. Hay den v. Dunaway. 2J a W. Rep. 529. ' R. & 1500-1502, 720 SUBSTITUTION OF LOST KECORDS, ETC. { 764, 765. g 764. Substitution by consent of parties. The parties may, by consent in writing, with the approval of the judg?, agree on a brief statement of the matters contained in lost records and papers, and the court may by an order substitute such statement for the lost originals. Such substituted copies, or brief statement of their contents, as the case may be, are filed with the clerk, and constitute a part of the record of the cause, and have all the force and effect of the originals. 1 765. Lost judgments supplied. Judgments of courts of record, including judgments of the county court, which have been lost, destroyed or carried away, may be sup- plied by parol proof of their contents on application to the court to which the original record belonged. The application must be made in writing, stating the facts, and the clerk will issue a citation to the party or parties adversely interested, or their heirs and legal representatives, such citation to be served as in other cases. If the court is satisfied on the hearing of the existence of the alleged judg- ment, order or decree, and of the loss or destruction of the same, an order will be entered to that effect, containing a description of the lost judgment and the contents thereof, a certified copy of which order may be recorded in the proper county. The judgment of the court, when duly entered, stands in the place of the original, and when recorded may be used in evidence the same as the original. Judgments, orders and decrees, when substituted as provided, carry all the rights thereunder in every respect as the originals, especially preserving the liens from the date of the originals, and giving the parties the right to issue executions under the substituted judgments as under the originals. The above proceedings include, also, deeds, bonds, bills of sale, mortgages, deeds of trust, powers of attorney, and conveyances of any and every description which are required or permitted by law to be acknowledged or recorded, and which have been so acknowl- edged or recorded. 2 A written contract between a city and a railway company whereby the latter agreed for a specified consideration to locate its shops and perpetually maintain, its domicile and shops within the limits of the city is not an instrument which, being lost, can be supplied under the provisions of the statute. Evidence of the contents of such lost instrument may be perpetuated by proceeding under the statute to take depositions of witnesses, and in such a proceeding it is only important, so far as relates to proper parties, that the plaintiff has an interest and that the defendants are supposed to be adversely 1 R S. 1503, 1504 2 R S. 4594, 4601. 7G.">.] 8UIJVIITI TMN ..F LOST RECORDS, ETC. 7lM interested. Such written contract was an instrument which under tin' statute might have been recorded. 1 The statute is cumulative; it does not prohibit a person from set- ting up a lost record and proving its contents as at> common law.-' A proceeding to substitute a lost judgment is barred in four years.' The venue prescribed by the above statute does not apply in suits to establish lost originals. 4 i St L., A. & T. Ry, Co. v. Harris, 73 T. 375 (11 S. W. Rep. 406). 'Johnson v. Skipworth, 59 T. 473; Taylor v. Pridgen, 3 App. C. G, 92; Phelan v. Wiley, 2 App. G C., 735; Craddock v. Scarborough, 54 T. 346. a Phelan v. Wiley, 2 App. G C., g 735. Douglas v. Baker, 79 T. 499 (15 S. W. Rep. 801). The proceeding provided by this statute is cumulative, and is given not only to parties to the suit, but to "any person having an interest in " the lost deed, judgment, etc. It affords to persons other than parties to a suit a remedy by which to reproduce lost records in which they are interested, and, while parties to the suit in which the lost judgment was rendered may doubtless resort to the remedy provided by this statute, they are not required to do so, but may proceed under articles 1498 and 1499 of the Revised Statutes ( 761, 762, supra). Hayden v. Dunaway, 29 S. W. Rep. 529. 46 CHAPTER LIY. COMPUTATION OF TIME. 7G6. Rules as to computation of time. 767. Rule where time is computed within certain days, or from a certain day. 763. Sunday included in the compu- tation of statute time. 769. Rule where notice is required to be given a certain number of days. 770. A day is in general indivisible. 771. The term " week " defined. 772. The term "month" defined. 766. Rule as to the computation of time. There is great uncertainty as to the rule to be adopted in the computation of time, and none has been laid down which, within itself, furnishes a certain and safe guide. 1 In the case of O'Connor v. Towns, 2 it is said that, whether the day on which an act was done, or an event happened, is to be included or excluded, must de- pend upon the circumstances and the reason of the thing, so that the intention of the parties may be effected. Such a construction should be given as would operate most to the ease of parties en- titled to favor, and by which rights would be secured, and forfeit- ures avoided. 3 In the case of Lester v. Garland, 4 it is suggested that the act done from which the computation is made inclusive of the day is an act to which the party, against whom the time runs, is privy ; and as he has unquestionably the benefit of some portion of the day, there is less hardship in constructively reckoning the whole of it as a part of the time allowed him ; but the day ought not to be included when the event was one totally foreign to the party, whose time for deliberation was to begin to run from that event. But this distinction does not apply to cases previously de- cided, nor is it observed in subsequent cases. 5 1 Angell on Limitations, ch. 6; State v. Asbury, 26 T. 82. 2 1 T. 107; Dowell v. Vinton, 1 App. C. C., 328. 3 An indictment for an offense which the law required to be prosecuted within two years after its commission was found on the 1st day of January, 1857, and charged the offense to have been committed on the 1st day of January, 1855. It was held that under the rule stated in O'Connor v. Towns, 1 T. 107, the day of the commission of the offense was to be included in the computation, and that the prosecution was not commenced in time. State v. Asbury, 26 T. 82. Where a person was born April 17, 1860, it was held that he became of age April 16, 1881, and that a suit filed on April 16, 1886, for land held adversely, was too late under the five year-statute. It should have been filed April 15. Ross v. Mor- row, 85 T. 172 (19 S. W. Rep. 1090); Phelan v. Douglass, 11 How. Pr. Rep. 193. 4 15 Vesey, Jr., 248. 8 Gorst v. Lowndes, 11 Sim. 434; Arnold v. United States, 9 Cranch, 104; Henry ? 7rt~.] OOMITTATION* OF TIM 7 _.", The rule adopted in computing the age of a person is tliat the irth is included, and on the day before his tweiitv-tiot anniversary he is held to be twenty-one years old. 1 i7. Rule where time is computed within certain days, or from a certain day. NVhere two periods are fixed within which an act may be done, it general rule that it may be done on any intervening i is in- cluded. Whether it should be included has, it is said, been a \ v. Jones, 8 Mass. 453; Portland Bank v. Maine Bank, 11 Mass. 204; Bigel\\ \. WilUon, 1 Pick. 485; Wiggin v. Peters, 1 Met 127; Homan v. I.iswvll, 6 Cow. 659; Ex parte Dean, 2 Cow. 605; People v. Sheriff of Broome, 19 W, -nd. : : Bank of Oswego v. Ives, 2 Hill, 355; Sims v. Hampton, 1 S. & R. 411: I.v>l. v. Will- iams, 15 S. & R. 13o; Smith v. Cassity, 9 B. Mon. 192; Pearpoint v. (ira! Wash. C. C. 232; Cornell v. Moulton, 3 Den. 12; State v. Sc-hnii-rie. 5 Ki. See, also, Dyer, 218: Moore, 40; 2 Inst 674: 5 Rep. 1; id. 90; Cr... .lac. ; 1 Kulst. 177; 3 Bulst.203; 1 Co. Lit. 466: Styles, 118; Alleyn, 77; 1 Ld. Raym. *4: ; id. 480; Cowp. 721; 2 Ld. Raym. 1242; 2 Wils. 165; 10 East, 4V 7: 14 M. & W. 581 ; 2 Camp. 394, Ross v. Morrow, 85 T. 172 (19 a W. Rep. 1090); Phelan v. Douglass, 11 How. Pr. Rep. 193. 1 v. Kerr, 78 T. 213 (14 & W. Rep. 566); Hunter v. Lanius, 82 T. 67 T - & W. Rep. 201): Phelan v. Douglass, 11 How. Pr. Rep. 193; Lubbock v. Cook. 49 T. 96; Speer v. State. 2 App. 246. Where by statute an appeal was perfect* -.1 l.y giving an appeal bond within twenty days after the term, it was held that where the court closed on the 16th day of July the twenty days expired on the 5th of August Burr v. Lewis, 6 T. 76; Back v. Ginacrln... i App. r. <'.. =; i:U\ So where two years were allowed from the rendition of judgment for tli- out of a writ of error, the day on which judgment was rendered was excluded. Lubbock v. Cook, 49 T. 96. Where the law provided that field-notes withdrawn from the land office should be returned within twelve months from tl day of November, 1871. it was held that field-notes returned on tin- vMtth day of November, 1872, were in time. Hill v. K-IT. > T. 218(14 S. W. I: When it is required that suit be brought against an administrator on .-. within ninety days after such rejection, the day of r.-jr<'ti'. n is -\< lud-d. Hunt-r \V. Rep. 201). And see Schwartz v. l.il,,-r!ii.-in. -,' App. C. C., g 289. Dow,-ll v. Vinton. 1 App. (.'. C rin Win i Ala. :!11. 1 .. On: V.\.,-ks v. Hull, 19 Conn. 376; Cornell v. Muni: 724- COMPUTATION OF TIME. [ 70S. 139. Rulo whore notice is required to be given a certain number of days. When a statute or rule of court requires notice to be given a cer- tain number of ,-/,-n days before the first day of the n-turn term, rxrhisiv.- ..1 tin- atxl ivtiirn. & Sunday is counted. Wood v. City ut M T. 1 -':. l=iS. \V. Ri'p. '. on Limitations, ch. ft, In re Gilley. a Low. (U. & C. C.) 2:.-. js Myer's Fed. Dec., p. 3fl. Dowell v. Vint-.n, 1 A pp. C. C., 381. " An. <>n Limitations, ch. 8. Speer v. State, 2 A pp. .'10; Dowell v. Vinton, 1 App. C. C., 331; McC.ill v. Bank of the f. S.. 12 Wlu-at. ~l 1. " In re Richardson. 2 Story. 571. bM v. (iilman. 11 Fled R.-p. Oil; L-ui-vill,- v. Savings Bank. II n t t :t v. Hill. 1 \V ..... 1>. 508; Nati.mal Hank v. Uurkhurdt. 10 Otto, 086; 1' v. Marine Ins. Co., Maso:. My. -rs Fed. Dec., pp. :i. 33, 38, COMPUTATION OF TIME. [ 771, 772. to make priorities in questions concerning public acts, such as legis- lative acts or public laws. 1 A statute forbidding an act to be done on a particular day means the natural day of twenty-four hours, from midnight to midnight. 2 771. The term " week " defined. A week is held to be a definite period of time, commencing on Sunday and ending on Saturday. Where notice is required to be published once a week, for several weeks or months, it is sufficient if the notice is published once during each week, though more than seven days may intervene between any two publications. Thus, where notice was published Monday, January 6, and was omitted until Saturday, January 18, leaving an interval of eleven days, still the publication on Saturday was within the week succeeding the notice of the 6th, and was held sufficient. 3 But the full time of seven days for each week of service must elapse between the day when the notice is first published and the return day. 4 772. The term "month" defined. When months are mentioned in a statute, they are to be consid- ered lunar, unless words are used which show that calendar months were intended. In respect to bills of exchange, promissory notes, and other mercantile contracts, a month, in all cases, means a cal- endar month, by the law merchant. 5 Where a law directs publica- tion of notice for two months successively, it is held that calendar months are intended. And where an act extended certain charters six months, the word months was held to mean calendar months. 7 1 In re Welraan, 7 L. Eep. 25, 20 Vt. 653, 28 Myer's Fed. Dec., p. 34. It was held in tliis case that an act of congress repealing the bankrupt law, passed March 3, 1843, having been signed by the president late in the evening of that day, a pe- tition in bankruptcy presented on the same day was too late. The contrary ruling is made in In re Richardson. 2 Story, 571, 28 Myer's Fed. Dec., p. 35. And see Myer on Vested Rights, 55-58. 2 Pulling v. People, 8 Barb. 384. 3 Ronkendorf v. Taylor, 4 Pet. 349. See In re King, 7 National Bank. Reg. 270. 4 A citation for publication, where three weeks' publication was required, was published on 13th, 20th and 27th of November, and judgment was rendered on the 4th of the succeeding month; and it was held that the service was in- complete, and that judgment could not properly have been rendered before the 5th of the month. Hill v. Faison, 27 T. 428. See the chapter on CITATION BY PUBLICATION. 5 Ang. on Lim., ch. 6; Highsmith v. Ussery, 25 T. Sup. 93; Sheets v. Selden, 2 Wall. 177. When a bill is drawn payable so many months after date, the com- putation is made by the calendar, and (without counting the days of grace) the bill will become due on the day of the month corresponding with the day of the date. A bill dated on the 1st of November, 1857, and payable eleven months after date, was due, including the days of grace, on the 4th day of October, 1858; excluding them, it was due on the 1st day of October. Highsmith v. Ussery, 25 T. Sup. 93; Moore v. Holliman, 25 T. Sup. 81. 6 Hunt v. Wickliff e, 2 Pet 201. " Union Bank of Georgetown v. Forrest, 3 Cranch, C. C., 21& CHAPTER LV. AFFIDAVITS, OATHS AND AFFIRMATIONS. X Form; affidavits to be in writ- ing, etc. 774 Affidavit may be made by agent or attorney. 775. Who may administer. 773. Form; affidavits to be in writing, etc. All oaths ami affirmations must be administered in the mode most binding upon the conscience of the individual taking the same, and are taken subject to the pains and penalties of perjury. 1 Affidavits must be in writing, and must be signed by the person making the same. 2 "Oath," when used in a statute, includes "affirmations," and "swear" or "sworn" includes "affirm." "Signature" or "sub- scribe " includes the mark of a person unable to write. 1 An affidavit is a statement or declaration of some particular per- son, rcdurril to writing, and sworn or affirmed to before some officer who has authority to administer an oath, and it must in itself show that it is the individual oath of the person swearing thereto. 4 The use of initial letters, or parts of words, by an officer, for the purpose of indicating the capacity in which he acts, is customary, and is recognized by the courts as sufficient.* 774. Affidavit may be made by agent or attorney. Whenever, at the commencement or during the progress of any civil suit or judicial proceeding, it may be necessary or proper for Const, art I. S 5; R. S. a 2 R S. 6. See Sh.-lt.m v. Berry, 19 T. 154. It is not an objection to an affidavit that (he signature of the affiant is written below that of the officer to the jitrnt. The -t.it in-' provi'l- - -imply that the affidavit shall be signed, and makes no pro- vision as to the place of the signature. Kohn v. Washer, 69 T. 67. The affidavit ought to state distinctly those statements which the affiant knows to be trti. . and those which are made on information and belief. Riley v. Treaner, 2o>. W. Rep. 1 Where an affidavit is couched in such general terms as to include facts win. -li the affiant could not know of his own personal knowledge, it maybe d entirely. Cook v. Garza, 13 T. i:;i. The affidavit to a i*>tition for certiorari may be amended by affixing the im- press of the officer's seal to the jurat. Hail v. Magale, 1 App. C. C., 854 R S. 8270. Flint v. McCarty. 1 App. C. C., 1018. In this case a claim affidavit signed arty & Brown " was held insufficient .Ithfw v. Mili.y. :; .\\>i>. C. C., 120; McDonald v. Morgan, 27 T. 503; Glenn v. Ashcroft, 2 U. C. 447. AFFIDAVITS, OATHS AND AFFIRMATIONS. [ 775. a 'iv party thereto to make an affidavit, such affidavit may be made by either the party or his agent or attorney. 1 This statute confers upon the attorney the same right to make an affidavit during the progress of a cause that the law confers upon his client. There may be cases in which the subject-matter of the affidavit rests pe- culiarly within the conscience of the client, and in such case the attorney making the affidavit may be required to state his means of information or knowledge of the facts stated. 2 775. Who may administer. All oaths, affidavits or affirmations necessary or required by law may be administered, and a certificate of the fact given, by any judge or clerk of a court of record, justice of the peace, or by any notary public, within this state. 3 It is further provided by stat- ute that affidavits may be made before either of the following officers, who are authorized to take such affidavits and give a cer- tificate thereof: 1. If taken within this state, before the officers named in the first sentence of this section. 2. If taken without this state, and within the United States, be- fore any clerk of a court of record having a seal, any notary public, or any commissioner of deeds duly appointed under the laws of this state, within some other state or territory. 3. If without the United States, before any notary public, or any minister, commissioner or charge' d* affaires of the United States, resident in and accredited to the country where the affida- vit may be taken ; or any consul-general, consul, vice-consul, com- mercial agent, vice-commercial agent, deputy consul or consular agent of the United States, resident in such country. 4 Oaths and affirmations may also be administered, and affidavits taken, and certificates thereof given as in other cases, and by such 1 R S. 5. 2 Doll v. Mundine, 84 T. 315 (19 S. W. Rep. 394). Robinson v ? Mattel, 11 T. 149, requiring that the application for a continuance must show that the attorney making the affidavit had personal knowledge of the facts stated, was decided before the adoption of the present statute. The attorney may make an affidavit for garnishment. Erwin v. City of Aus- tin, 1 App. C. C., 1040. An answer verified by the oath of an attorney need not show that the material allegations were known personally to the client, provided they are stated to be within the personal knowledge of the attorney. Bowles v. Glasgow, 36 T. 94. RS. 4. 4 R S. 7. It is also provided by statute that every commissioner of deeds shall have full power and authority to administer an oath or affirmation to any per- son who shall be willing and desirous to make such oath or affirmation before him; and that such oath or affirmation shall be as good and effectual, to all in- tents and purposes, as if taken by any officer in this state competent to take the same. R S. 620. 775.] AFFIDAVITS, OATHS AND AFFIRMATIONS. 7l'.' other officers as are <>r may be prescribed by law. 1 Every notary public has power to administer oaths and give certiliratrs thereof under his hand and official seal. He may "attest the oath of any person to a petition or answer in any suit, and the same wh attested shall be valid in all the courts of this state." 2 1 R 8. 8. There are special statutory provisions respecting clerks of courts: " Tin- several clerks of the district court shall have power to administer all oaths and affirmations required in the discharge of their official duties" (R S, 1086), and clerks of county courts are authorized "to administer all oaths ami affirmations, and to take affidavits and depositions to be used as provided by la w in any of the courts." R 8. 1142. Prior to the. adoption of the present statat.- cK-rks could administer oaths only in the discharge of their official dutiea Car- lee v. Smith, 8 T. 134; Smith v. Wilson, 15 T. 1 ::-'. A deputy clerk may take an affidavit; the statute authorizes them to do and perform all such official acts as may be lawfully performed by the clerk in j>.-t- aoa R S. 1084. 1139; Walthew v. Milby, 3 App. C. C.. 120. * R S. 3511, 3513. The power to take affidavits is not one of the incidents of the office of notary public under the law*merchant Jenks v. Jenks, 1? As the statute prescribes the terms of an affidavit of inability to give a bond for costs, it is not an objection that such affidavit is drawn by and sworn t<> before the attorney of the affiant, the attorney being a notary public, Ryburn v. Moore, 72 T. 85. INDEX. The references are to the sections when not otherwise indicated. ABANDONMENT of part of cause of action, 450. ABATEMENT AND DISCONTINUANCE in general. 14. 33. death of a joint defendant, 159. death of a partner, 163. on dismissal as to a defendant in partition, 185. rule of the common law. 314. il< ;'.th of plaintiff will not abate suit, when, 315. scire facias to executor, etc., 310. death of defendant, ::17. where an executor or administrator dies, 818. surviving parties. 319. death between verdict and judgment, 320. marriage of female plaintiff, 321. marriage of female defendant, 322. suit to use of another, 32:{. death of party to suit for injuries resulting in death, 324. injuries not resulting in death, 325. another action pending, 326. where some of the defendants are not served, 327. discontinuance in vacation, 328. discontinuance as to a joint defendant served with process, 329. discontinuance where defendant has filed a counter-claim, 330. ilivmi^sal for \\arit of prosecution, 331. : of discontinuance, 888. setting aside judgment of dismissal, 333. riM|iusUfS of scint facias and returns, 334. actions by and against railroad companies, 335. death of party j>ending appeal, 336. actions a.^ain>t ivrcivt rs, ;}:{?. ju i_'iiu-nt against a dead person, 338. party becoming insane before verdicc, 309. ABSENCE OF COUNSEL as ground for continuance, 426. as a ground for a new trial, 679. ABSENT DEFENDANTS Holier to, ,".!. ABSENT TESTIMONY as ground for continuance, 420. as a ;a'"iiii'l for a new trial, 678. ACCEPTANCE OF SERVICE of citation, 73, 294, 295, 299. of sul'i'ii-na. 368. ACCOUNT suit on, evidence, 488. ADJOURNMENT when- a judge fails to appear and open court, 52. ADMINISTRATORS (see Executors). 732 INDEX. AFFIDAVIT OF FORGERY of assignment or indorsement, 485. of recorded instrument, 505, 507. AFFIDAVITS for notice by publication, 302. for order for inspection of papers, 399. how administered, 480, 773. to plea of non eat fctctum, 482, 483. in suit on account, 488. of loss of recorded instrument, 506. of jurors, 587. form; to be in writing and signed, 773. may be made by agent or attorney, 774, what officers may take, 775. AGENTS suits by, 145. may make affidavit for a continuance, 429, may make affidavit in any case, 774, AGREED CASE how made up and tried, 452, AGREEMENTS OF PARTIES in general, ch. 46, p. 663, ALIAS CITATION - when and how issued. 289, where some of the defendants are not served, 327, AMENDMENTS in vacation, 59. where a demurrer is sustained for want of proper parties, 195, 196, 201. of citation, 292. mistake in return of citation, 293, of depositions, 387. will authorize a continuance. 409, of verdict, 601. where a new trial is granted, 672, of judgments, 693-696, AMICUS CURI^E motion by, 709, ANOTHER ACTION PENDING abatement, 326. ANSWER must be filed, when, 13, 290, 435. a waiver of process, 296. time of filing on citation by publication, 307, 308, 435, APPEALS in general, 28, 33, from justices' courts, 120. rights of intervener, p. 234, n. 1, reversal, no new citation, 298. objections to void process, 300. discontinuance as to a party, 329, cause not to abate by death, 336. from order changing venue, 345. from a trial by the court, 5.42, 604, judgment on appeal from county or justice court, how enforced, 636. necessity of motion for new trial before appeal, 669. remittitur, 692. perfected during the term, trial court retains jurisdiction, p, 660, n. 4. from justice courts, costs, 722. revision of errors in respect to costs, 741, from award of arbitrators, 753, INDEX. 733 \NVE- confers juris lir-tion over the person. 74, 223. tiint- and place must be stated in citation, 273. citation to be served ten days before return day, 290. a waiv. -r of immunity by reason of non-residence, 291, 290. vi.lunt:ir> l'\ tiling an answer or other defensive pleading, 298. I'V mot luii to quash citation, 297. ise of reversal on appeal, 298. on citation by publication, 308. AI'I'K M: \>VE DAY call of docket; default, 13, 434-437, 458. on citation by publication, 307, 308. demand for jury, 458. APPRENTICES venue of suit on bond, 219. ARBITRATION* AT COMMON LAW agreement, how made, 757, ii-.i must pursue agreement, 758. authority of arbitrators, 759. award, how enforced, 760. ARBITRATION UNDER THE STATUTE of the right to arbitrate, 746. agreement to arbitrate, how made; where filed, 747. submission must conform to the statute. 748. notice of day of trial: process for witnesses; organization; continuance; trial; order of argument. 749. trial to be governed by rules of law and equity, 750. the award, 751. umpire chosen, when; proceedings, 752. right of appeal. ?.">* validity and effect of the award, 754. an award will be set aside for fraud, mistake, etc., 755. |>tnalty for refusing to proceed, 756. ARCHIVES, 490, 495, 514 ARGUMENT OF COUNSEL in general. 24. order of argument, 543. general rules, 544, argument on the facts to be confined to the evidence, 545. side-bar remarks prohibited; objections to violation of rules in argument E4& objections, when and how taken, 547. right to a reasonable time for argument, 548. improper remarks are ground for reversal, when, 549. argument on the law, 550. reflections on opposite party, 551. effect of correction by court and retraction by counsel, 55i latitude allowed where the argument is confined to the evidence, 553. reply to improper argument, 554 prejudice against corporations, 555. statement of facts not in evidence, 556. reading from books, 557. ARREST privilege of witness. 373. ARREST OF JUDGMENT (see New Trial) motion for, when made, 27, 663, 666. for defect of parties, 199. mds to be specified, 663. on what grounds, 665. motion determined, when. 667. ..Iment of pleadings, 672. cost of suit, 72L 73 INDEX. ASSAULT AND BATTERY costs of suit, 719. ASSIGNEES as parties to suits, 146. of commercial paper, 147. right to intervene, 208. ASSIGNEES IN BANKRUPTCY as parties to suits, 209, and note. ASSIGNMENT what may be assigned, 146. of commercial paper, who may sue, 147. how put in issue, 485. ASSIGNMENT FOR BENEFIT OF CREDITORS suits to set aside, 146. ATTACHMENT justices may issue, 2. may issue in vacation, 59, 118. against non-residents, 74, 312. remedy of claimant of attached property, 202, and notes; 215. right of intervention, 215, 216. commenced on Sundays or holidays, 258. effect of quashing, 297. ATTACHMENT FOR WITNESSES refusal to attend, 369, 384. ATTORNEYS for poor persons, appointment of, 56, 57. appearance bv, 191. for absent defendants, 192, 310. may make affidavit for a continuance, 429. must prepare form of judgment, 617. confession of judgment, 645. leading counsel ; attorney of record, 657. not to act as surety, 658. notice of proceedings against, 711. fees, as costs, 713, note. may make affidavit for his client, 774 AUDITORS auditor appointed, when, 701. notice of the hearing, 702. manner of conducting the trial, 703. forms of proceeding and rules of evidence, 704 report of auditor, 705. report in evidence; exceptions, 706. B. BILL FOR A NEW TRIAL when necessary, 667. new trial may be granted after the term, 686. nature of the proceeding, 687. procedure, 688. judgment on service by publication, 689. BILL OF EXCEPTIONS in general, 29. to rulings on motion for a continuance, 433. to rulings on pleadings, 447. where a case is submitted to the judge, 453. exceptions to rulings, when taken, 533. requisites of bilL, 534 no exceptions or bill required, when, 535. exceptions required in certain cases, 536. - exceptions to admission or exclusion of evidence, 537. INDEX. 735 BILL OF EXCEPTIONS (continued) to I- .la-lire within a certain time, 538. t> be submitted to adverse party, and filed during the term, 539. proce-lure when bill found incorrect, 540. controv.-rt.--l bill of exceptions and affidavits relating thereto, 541. when- tin* trial is by the court. ~jl'2. BILLS AND NOTES assignment, who may sue, 147. parties to suits on, 1-T,?. \~A ri^ht of owner to intervene. assignment, how put in issue, 4S5. BONDS parties to suits on, 164-166. BKIKFS how prepared; filing, 29. c. CALL OF DOCKET appearance day : default, 434. cases to be tried when called, 442. non-jury docket. 444. demand for jury. ELLATION jurisdiction in equity, 117. CASES CERTIFIED from court of civil appeals to supreme court, 29, 88-90. CERTIORARI district courts and judges may issue, 56, 118. may issue in vacation, 59. jurisdiction of supreme court, 91. jurisdiction of the district court, 119. judgments, how enforced, 636. rs of suit, 7ii CHALLENGE OF JURORS (see Jurors) to the array. 46a for cause, 465. peremptory, 466, 467. unos of, 468. to be decided promptly, 469. CHANGE OF NAME venue of suit, 219. CHANGE OF VENUE (see Venue) in general, 15. by consent, 340. on the application of either party, 341. judge may inquire into truth of application, 342. to what county. 343. duty of clerk. 344 time of making application, 345. matters of practice, 346. CHARGE OF COURT in general, 24, 8& jury may ask further instructions, 26, 588. t lie subject a difficult one, 558. when given, 559. i not be excepted to, 560. jury may take charge with them, and may ask additional instructions, 561. requisites of, 562. on the weight of evidence. 553. on the credibility of witnesses, " : assume controverted f.i questlc>n<> of law; construction of written instruments, 560. 736 INDEX. CHARGE OF COURT (continued) on the preponderance of evidence, 567. must apply to facts in evidence, 568. must be confined to the issues, 569. must cover all the issues, 570. defining the issues, 571. must not give undue prominence to facts and issues, 572. when pleadings contain several combinations of facts, 573. on negligence, 574 contributory negligence, 575. as to damages, 576. measure and elements of damages, 577. parties may ask instructions; if refused, no exceptions required, 578. special instructions must be requested, when, 579. need not be repeated, 580. misleading; harmless error, 581. how construed in determining its sufficiency or validity, 583. directing a verdict, 583. error in, as a ground for a new trial, 680. CHATTEL MORTGAGES copies in evidence, 502. CITATION (see Return; Service of Citation) in general. 12; ch. 12, p. 289. must be under seal, 62. waiver of, and voluntary appearance, 73. agreement as to venue, 226. to issue on filing petition, 253, 263. discontinuance as to defendants not served, 327. must issue forthwith, 263. one to each county, 264. contents of citation, 265. the officer to whom issued, 266. must be directed to the proper county, 267. must state nature of demand, 268. must state the names of all the parties, 269. certainty as to the names of parties, 270. date of filing and file number, 271. must be under seal, dated and tested, 272. must state time and place of appearance, 273. style of process, 274 when returnable, 275. defendant out of county; copy of petition to accompany citation, 276. sheriff or clerk a party to the suit, 277. service by deputy sheriff, 278. duty of officer as to indorsement, execution and return, 279. service within the county, 280. service in suits against counties, 281. service on cities, towns, etc., 282. service on incorporated companies and receivers, 283. life and health insurance companies, 284 service on foreign corporations, 285. service upon a firm, 286. return of citation, 287. return not served, 288. alias process, 289. time of service of citation, 290. notice to absent or non-resident defendants, 291. amendment of citation, 292. mistake in return, 293. acceptance of service, 294 entering appearance in open court, 295. answer is appearance, 296. quashing citation on motion, 297. no new citation in case of reversal on appeal, 298. no judgment without service, 299. objections to citation, service and return, 300. false return, 301. INI CITATION* HY PUBLICATION in gt-n.-ral. r>: ch. 13. ].. A trial in rase of di-fault, '-27. B89. jurisdiction, collar i il attack, 70. valiility of judgments. 74. attorney tor ai>s.-nt defendant, 192. nt of the evidence required, 192. elf. ct ..t app. -a ranee and motion to quash, 296, 297. when author contents of citation; publication, 303. unknown heir-. ::oj. publication in otlier cases, '' ni^ of Texas, 306. time <>f pulilieatio' answer filed, when: appearance, 308. return of citation, 309. judgment in suits l.y publication, 310. statement of the evidence. :U1. wliat judgment authorixt-d. :512. presumptions in aid of the proceedings, 313. I'lTIES AND TOWNS suits by and against. service" of citation on. . not required to give bond or security as a party to a suit, 662. CLERKS OF COURT duties in filing petition, 11, 263. must issue subpoenas for witnesses, 17. duties in summoning jurors, 129. 135. to be sworn, 132. duties in instituting suits, 253-257, 259, 263. must keep dockets, 255. 256, 460. indexing names of parties, 2~,7. party to suit, clerk pro tern, to be appointed, 277. duties in citation by publication, 302. duties on change of venue, 344 may require security for costs, 347. must issue subpoenas, 368. duties in taking depositions, 380, 382. may take depositions, 383. duties in entering judgment, 617. COLLATERAL ATTACK ON JUDGMENTS in general, 70, 640. presumptions as to service of process, 299. in case of citation by publication, 302. presumptions, 313. COLOR does not disqualify as a witness, 477. ( OMMISSIONER OF INSURANCE copies of official records in evidence, 516. OJMMON CARRIERS I nirties to suits against, 171. venue of actions against, 219, 245. MON LAW in force on rules of evidence, 21. abatement of actions, 1514. COMMUNITY PROPERTY parties to suits concerning, 154, 15& suits by survivor, 156, 157. COM PTROLLER'S TRANSCRIPTS in evidence in suits against officers, 4991 COMPUTATION OF TIME rules for, 766-7 7 i 47 738 INDEX. CONCLUSIONS OF FACT AND LAW in courts of civil appeals, 29. where the trial is by the court, 451, 542, 604. defective or erroneous, 605. CONFESSION OF JUDGMENT in general; cures errors, 18. 647. procedure; petition and affidavit, 643. of the instrument authorizing judgment, 644. confession by attorney. 645. amount of debt or damage should be agreed on, 646. impeachment, 647. CONSENT JUDGMENT in general, 626. CONSIGNOR may sue carrier, 171. may intervene, 210. CONSOLIDATION OF SUITS discretion of court, 356. when consolidation of suits is proper. 357. costs of several suits which should have been joined, 358. CONSTABLE service of citation, 266, 267, 279. where the sheriff is a party, 277. citation by publication, 302. service of subpoena in taking depositions, 374. CONSTITUTIONAL LAW action against non-resident or unknown owners to quiet title, 184, 312. change of law as to venue, 220. judgment without notice, 299. state may determine status of its citizens as against non-residents, 305, 312. judgments against non-residents, 312. rules of evidence, 481. provision affecting land titles, p. 481, n. 3. CONSTRUCTION OF WRITINGS a question for the court, 566. CONTEMPT power of county court, 3. power of district court, 4. power of courts of civil appeals, 5, 102. power of supreme court, 102. in general; proceedings in contempt cases, 60, 61. refusal of witness to attend, 369, 384. refusal of witness to testify, 372, 384. CONTESTED ELECTIONS jurisdiction, 103; p. 131, n. 7. venue, 250. CONTINUANCE general principles stated, 16. payment of witness fees to show diligence, 17. discretion in granting, 58, 413. to bring in obligors on indemnity bonds, 166. for want of proper parties, 200. where some of the defendants are not served, 327. application, when made; when granted, 403. first application, requisites of, 404. second and subsequent applications, 405. whether an application is first or second, etc., 406. court not held or business not disposed of, 407. miscellaneous provisions; surprise by rulings, 408. surprise caused by supplement or amendment to pleading, 409. time of making application, 410. on .the character ot the pleadings, 411. INDEX. CONTINUANCE (continued) postponein.-nt to future day of term, 412. statutory applications, 413. diligence, how Mated. 414. probability of procuring the evidence, 415. a party must not delay the preparation of his case, 416. excusing want of diligence. 417. materiality of absent testimony, 418. efforts to discover materiality of testimony. 419. merit of testimony of absent witness, 420. process for witnesses, 421. wlu-tlier witness fees should be paid or tendered, 422. diligence in taking dej>ositions, 423. testimony not obtainable from any other source, 424. name and residence of witness, 4,'"). absence of counsel, 4^'. matters of practice, 427. r. <|uisites of application, 428. attorney or agent may make affidavit, 429. counter-affidavits. 430. motion defeated by admission of facts, 431. granted on terms. 432. exceptions to rulings, 433. ( 'ONTRACTS joint and several, parties to suits on, 151, 152, 153. joint, suit against survivor, 159. failure of proof, 199. to l>e performed in a certain county, venue, 225, 226. limiting time to sue, 261. or as to giving notice of claim for damages, 262. with counties, suits on, 661. CONTRIBUTORY NEGLIGENCE defined; charge of court, 575. COPIES (see Evidence). COPY OF PETITION to accompany citation, 276. CORPORATIONS (see Railroad Companies) suits by, 149. venue of suits against, 245. service of citation, 283. charters and records in evidence, 489. S (see Fees) in general, ch. 49, p. 676. against non-residents cited by publication. 74, 312, 713, note, on dismissal of intervention, J"7. on discontinuance, 328. on setting aside judgment of dismissal, 333. where suits should have been consolidated, 358. taxing witness fees, 371. in case of supplement or amendment to pleading, 409. of exceptions not disposed of on call of case, 1 17. of abandoned pleading, 450. com posed of fees due officers, 713. each party responsible for his own costs, 714 payment of fees in advance, or to end of term, 715. costs not paid on demand, how collected. 716. nu'ht of successful party, discretion of the court. 717. costs where demand is reduced by payment, or a counter claim is tiled. 718. - in actions for asxault and battery, slander, etc., 7l'J. .tie... 7-J". in case of new trial or arrest of ju l-:n--nt. 7'J1. in case of appeal or crrtinrnr executors, admit nd ^uardi >t debt IS 740 INDEX. COSTS (continued) action prematurely brought, 723. in trespass to try title, 726. what may be taxed as costs, 727. compensation of guardians arf litem, 728. witness fees, 729. costs on motions, exceptions and other pleadings, 730. fee books; fee bills; penalty for taking illegal fees; posting list of fees, 731. fees of clerks of district courts, 732. fees of county judge, 733. fees of clerks of county courts, 734. fees of sheriffs and constables, 735. costs, 736. COSTS IN APPELLATE COURTS in general, 737. in courts of civil appeals, 738. appellant liable for, when, 739. appellee liable, when, 740. revision of errors, 741. execution for costs; duty of officer. 742. fees of clerk of supreme court, 743. fees of clerks of courts of civil appeals, 744. report by clerks of courts of civil appeals, 745. COUNTER-AFFIDAVITS on application for a continuance. 430. on motion for new trial, 674. COUNTER-CLAIM when plaintiff may discontinue, 330, 614. in suits on accounts, 488. costs in case of, 718. COUNTIES - suits by and against, 148. new, venue of suits, 217. venue of suits against, 241. claims must be presented before suit, 260. service of citation on, 281. new, transcribed records, 508. suits on contracts with or for a county, 661. costs in suits against, 720. COUNTY COURTS in general, ch. 5, p. 114. jurisdiction and powers: a court of record, 3, 36. collateral attack on judgments, 36. appellate jurisdiction, 120. COUNTY SURVEYORS copies of records in evidence, 513. COURT-HOUSES as to place of holding district courts, 37. COURTS jurisdiction, generally, 65 et seq. organization and jurisdiction, 1. power of the legislature, 1, 3, 34, 67. adjournment of term where judge fails to appear, 52, 407. proceedings in vacation, 59. COURTS OF CIVIL APPEALS in general, o. organization and powers, 5, 97. trial of causes in, 29. jurisdiction, 93-95. quorum. 97. power to issue writs, 98. sessions, 100. 741 nimuTY nr WITNESSES a i|ue*tion for the jury, 564. for damages, venue of, '-' \-\MINATluN of witnesses, 521. D. s cont notice of claim charge of court, 57(5, 57 7. form of verdict. Ol'i. excessive or inadequate, when ground for new trial, 683. release of excess on appeal, 693. DATE of citation, 271. 272. 803, 804. of receipt >f citation by officer, 270. of notice to absent or non-resident defendants, 291, of sulipu-na. 368. DEATH (see Abatement) of a joint defendant, : of a partner pending suit, 163. abatement aii'l iwivor. ch. 14, p. 330. between verdict and judgment, of one suing for use of another, 323. pending appeal, 336. judgment against a dead person, 338. DEEDS OF TKTST judicial construction, p. 118, n. 3. DEFAULT in actions against non-resident or unknown owners to quiet title, 184. defective process, 800. ' itation by publication, 310. a pi lay; call of docket, 434. time of tiling answer. 435. judgment by default, when tala-n, 436. when some of the defendants answer, 437. form of judgment by default, 438. of different forms of judgment by default, 439. what admitted by a default. 4 >u. judgment I iy d.'tault >et aide, when, 441. jury trial. 4.V.. as to a jiarty not served, p. 592, n. 8. ! OF PARTIES ohj.-ctioii<, liow and when taken, p. . for want ot' pro]..-r defendant, 199. how tiviat'-d. 'JiJl. f.F.R VTI'iNs OF THE JURY in g'-iu-ral. 26. 83. tak-- i-harg'- with them. .".til. may a.-k furth'-r instructions, 561, 589. fciremaii of jury. > J. may tak.- pa|-rs with tli.-m. 585. jury to h- k.-pt together: duty of officer in charge; caution in case th< y are jn-rmitt'-d ti -..-parat.-. misconduct <>f juror*; atlldavits not ). i\. -d \i> impta'-ii verdict. may communicate with the com: may have witiu-^ re-4'xamined, may examii. ".'.!. may pnx-eed with other business, 596. DEMURRER lor d.-fei-t of parties 197. when disposed of, 44(i 74:2 INDEX. DEMURRER TO EVIDENCE when and how taken, 531. admits what, 532. DENTISTRY examining board, records of, in evidence, 515. DEPOSIT IN COURT in general, 659. DEPOSITIONS OF PARTIES a part} 7 may take his own deposition, 392. a party may take the deposition of adverse party, 393. notice; interrogatories; execution of the commission, 394 answer may embrace what; contradiction, 395. interrogatories taken as confessed, 398. objections to interrogatories and answers, 397. DEPOSITIONS OF WITNESSES how taken and returned, generally; objections to; use of at the trial, 17, 33. notice by publication. 305, 379. diligence in taking, 370, 423. may be taken, when, 377. notice, and service thereof, 378. perpetuating testimony, 380. cross-interrogatories; either party may use, 381. commission to take, 382. officers authorized to take, 383. subpoena for witness; refusal to appear or answer, 384. execution of the commission, 385. officer's certificate. 386. corrections and amendments; loss of depositions, 387. return of the depositions, 388. opening depositions, 389. objections to depositions, 390. ..may be read subject to exceptions, 391. notice of objections, 712. may be used when the witness is present, 377. jury may examine, 591. must not be .taken by jury on retiring, 585. DEPUTY CLERKS ' may take depositions, p. 373, n. 2. DEPUTY SHERIFF appointment of, and service of process, 278, 279. DESCRIPTION OF LAND in judgments, 630. DETINUE the judgment, 633. DEVISEES as parties to suits, 158. DILATORY PLEAS to be determined before trial, 18, 443-447. DILIGENCE in procuring attendance of witnesses, 370, 421, 422. in taking depositions, 370, 377, 423. to authorize a continuance, 413, 414, 416, 417, 419. DIRECTING A VERDICT when proper, 588. DISCONTINUANCE (see Abatement) in general, 14, SJ27 et seq. as to a principal obligor, 152, 164. where a counter-claim is filed, 614. DISCRETION in general, 58. liability of judges for judicial acts, 58. in consolidating suits, 356. in granting or refusing a continuance, 413. 1M>KX. DISMISSAL in case of intervention. 20 j. of intervention. - for want <>f prosecution, 331. setting aside judgment of. 333, for failure to give security for costs, 333. DISQUALIFICATION OF JUDGES in general. 7. '.I* in. Appointment <>f -i-xaal district judges, 41. election by the bar, 41. procedure where a county judge is disqualified, 44. by int. n ^t. }". by relationship, 4ft. having ;u-t.-d iis counsel how question determined, 48. acts of disqualified judge, 49. qualifications of special judges, 50. power of special judge, 51. no change of venue, 341. DISTRICT COURTS jurisdiction, original and appellate, 4; ch. 5, p. 114. to be held at count v seat. 37. powers of court an J judge, 56. appellate and supervisory jurisdiction, 119. DIVORCE jurisdiction. 103. venue of suit- notice by publication, 305. DOCKETS (see Call of Docket) tile docket, how kept, 255. court and bar dockets, 256. cases to be docketed and numbered in order, 442. jury docket. 443, 460. motion docket, 710. DOMICILE ilt -fined; means residence, in statute on venue, 217, 218. DRAWING AND IMPANELING A JURY, ch. 27, p. 436, DUE PROCESS OF LAW judgment without notice, 299. judicial discretion, 58. E. EMINENT DOMAIN ' ap|N)intment of commissioners, 104. parties to proceedings, 196. EQUITY jurisdiction of the county court, 3, 66, 104 juri>'liction of the district court, 4, 66, 103. jurisdiction generally. 117. KATS jurisdiction, 103, 104 vi-mir. 219. citation by publication. 30& ESTATES OF DEC K I K N TS parties t< ->uit-. i-nr,-rnin>j. 156-161. >iiit on instrument executed by deceased, 483. KVIDKNCE (see Deposition*: Introduction of Evidence; Witnessed) statutory rul.-i <-t. < ii. :{M. p. general ruli-M ciuiiion law in force, 21, 48L i-, 447. OTION J, :{,!. ut must enforce its decrees, i'- imt is~u>' a-ain>t executors, etc., 637. for costs. Tin. EXECUTORS \NI) ADMINISTRATORS suit-* by. 1.")?. I -a: _:ainst estates, 158, 178. venue of suits against. Irath ..( a party to a suit, 310. 317, 318. ti'.t required i urity for costs, 851. -nits against. 479. pMrif of appointment, ~> l): *. loMiiv iif nmrt^a^e against, 034. jU'l.irnifiiiv au'ainst costs of suit. ' EXTRA TERRITORIAL JURISDICTION in p-in-ral. 7.">. as to land titles, 63?. F. -E RETURN lialility of officer. :{m. \i<>\\- contradicted, bill. FEES OF OFFICERS costs of suit, 7i:<. payment in advance, or to end of term, 713. of clerks, 7^?. fee books; fee bills: penalty for taking illegal fees, 731. clerks of district courts, 732. cMiuity ju. clerk of supn-nu' court, 74:1 clerks of courts of civil appeals, 744. KILE DOCKET how kept, 'J')."). FILE NUMBER citation must state, 271. KILINd PAPERS i"d filed, when date of filing petition to be stated in citation, 271. I'!-" 1 insti uiui-nt relied on as evidence, OUo. FINAL jriMJMENT only oiH- can \n- i-ntiTt-d, 437, 631. deflned, FORECLOSURE form of jiid^nu-nt. FOREIGN CORPOK ATIoNS Vdiui- of -mt-, aLTam-'t. -17. servicr of citation on, . waiver of service of citation, 290. FuKEHiN Jt: I Hi ME NTS collatt-ral attack. 70. FORFEITURE ol rilARTERS jurisdiction, ]iL V.Mlll- i)F ViTION no distinctions ub^-rvyd in practice, 3. 7 6 INDEX. FRAUD on the jurisdiction, 78. as to venue, p. 246, n. 1 ; p. 234, n. 1. venue of suits in case of, 2*8. FRAUDULENT CONVEYANCES parties to suits to set aside, 174. G. GARNISHMENT justices may issue. 2. may issue in vacation, 59. how docketed, 254. citation by publication, 312. GENERAL DENIAL objections under for defect of parties, 198, 199. GOVERNOR not subject to mandamus, 92. GUARANTOR as a party to a suit, 140, 153. GUARDIAN venue of suits against, 227. evidence in suits by or against, 479. proof of appointment, 503. judgment against, how enforced, 637. costs of suit, 723. GUARDIANS AD LITEM- for whom appointed, 193. appointment where minor not properly served, p. 298, n. 3. not required to give security for costs, 351. compensation ; costs of suit, 728. H. HABEAS CORPUS district courts and judges ma}' issue, 56, 118. jurisdiction of supreme court, 91. HEADS OF DEPARTMENTS mandamus against, 92. venue, 242. to furnish certified copies of papers, 494, 500. and official certificates, 494. HEIRS joinder as parties to suit by husband or wife, 154-156. parties to suits by and against the estate, 157, 158. suits by and against, 160. parties to suits affecting land, 177, 180, 195. to enforce a mechanic's lien, 181. in partition suits, 1H5. when action may be revived against, 317, 323. may be made parties on appeal, 336. evidence in suits by or against, 479. HOLIDAYS (see Sunday) no legal proceedings on, except. 11, 12, 258. HUSBAND AND WIFE suits by and against, 154. 155. suits by survivor, 156, 197. service of citation in suits against, 287. may testify, 478. INDEX. 747 I. IDEM SONANS in general. IDIOT guardian ad litn for, 193. IMI'KACUMKNT OF WITNESSES, 522-526. INCUJCBRANCERS as (mrties to suits, 178, 180. INWvMNIKYIXG BpNDS JOTS ma\ !> joined in suits on, 166. 195. an.l a continuance may be had, 403. INDEXING - n:inu's nf parties to suits, 257. INDORSEMENT of tiling of petition, 254 on citation, 279. how put in issue, 485. INHERITANCES venue of suits concerning, 232. INJUNCTIONS courts and judges may issue, 56, 57, 118. may issue in vacation, 59. dMobedienoe of, may be punished in vacation, 59. venue of suits to enjoin judgments, 238. notice of motion to dissolve, 711. commenced on Sundays and holidays, 258. INJURIES NOT RESULTING IN DEATH action ilin-s not abate by death of a party, 325. INJURIES RESULTING IN DEATH parties to suits, 190. ill-nth of party to a suit, 3:2 4. INSANITY - party becoming insane before verdict, 339. INSTITUTION OF SUITS how and when instituted, 11; ch. 11, p. 283. INSTRUCTIONS (see Charge). INSURANCE COMPANIES u- of suits against, 248. service of citation on. 2 s l. notice by publication, 302. INTEREST pi vsiunption as to rate in other states and countries, 487. in judgments. 1NTK II LnrrTORY JUDGMENTS in general, (p.i. INTERPLEADER tliinl party n-ijuin-d to intt-rplead. 203. may insist ..n privilege as to venue, 217. INTERPRETERS to inti-rpict witnesses, 375. [NTERVENTION in g.-iiiTal. 10. iutcrv.-ncr must give security for costs, 852. int-r\ rii.T ilctiiicil; who may intervene. | il.-i'i'ii-lant may rc .','itv j>arty in interest to intervene, 2C3. notice of interrenttoa; leave of court. ri^lit of plaintitT t-> ilisiniss. -Ju.y it- aii'l duties of interveiier. 'JOS. uf intervention, ','117. 7-iS INDEX. INTERVENTION (continued) owner of note may intervene in a suit brought by another, 208. assignee of a chose in action pendent e lite may intervene, 209. the owner of personal property may intervene in a suit respecting it brought bv another. 210. rig.'its of purchaser pendente lite, 211. in actions affecting title to property, 212. in trespass to try title; owner of land may intervene in a suit against his tenant. 213. rights of lienholders, 214. where property is seized under attachment, execution, etc., 215. rights of attaching creditors, 216. INTRODUCTION OF EVIDENCE -* where the trial is by the court, 451. order of. 473. time and order of introducing evidence. 516. omissi'Mi in testimony may be supplied, 517. exceptions to admission or exclusion of evidence, 518. examination of witnesses, 519. leading questions, 520. cross-examination. 521, discrediting or impeaching witnesses, 522- general rules as to impeachment of witnesses, 523. impeachment by proof of reputation, 524. impeachment by proof of contradictory statements, 523. impeachment by reference to former testimony, 526. testimony admitted for specific purpose, 527. evidence improperly admitted may be withdrawn, 528. amount of cumulative evidence may be limited, 529, placing witnesses under the rule, 530, ISSUES OF LAW when tried, 443-447, J. JOINDER OF CAUSES in general, 8. 359. general principles as to joinder of causes, 360. illustrations of the various rulings, 361. chancery and common-law rules, 362. real actions, 363, tort actions, 364. ioinder of causes ex delicto and ex contractu, 365. whether parties must all be interested cr affected in the same way, 366. effect of nonjoinder, 367. JOINDER OF PARTIES objections for non-joinder or misjoinder, p. 223. JOINT OBLIGORS suits against survivor, 159, JOINT OWNERS joinder in suits, 151, 152, 173. JUDGES (see Disqualification of Judges) liability for judicial acts, 58, powers in vacation. 59. failure to attend, 407. disqualification, 38-51. JUDGES OF DISTRICT COURTC (see Judges) may exchange districts. 7, 43. powers of, in term time or in vacation, 56, JUDGMENT BY DEFAULT (see Default) in general. 13. JUDGMENT LIENS in general, 31, INK 74'J MEXTS (see Cnllntwl Attnck) .li. :;'.. | of t!i<- supreme court. :'!" must be baH'il on i-iii- made and proved, 83. must be pronounced at a terra of court, "it. lateral attack. TO. 6-H. court must have jurisdiction. <>">. 72, 73. is( non-residents, 71. ',".M, :!.'. p:irti--s to Ctn fin-inn to revive. 169, 178. parties tn -nil - dde and enjoin, 170. vemie of suit* to onjoin. 238. venue of actions mi. or to revive or vacate, 239. in suit* airainst p -; ncrship- i without service of process, 299. effect nt vnid proc.-ss. :;uu. determining ttatu* of citizens of a state, 303. 'MI* of the state on citation by publication, 306. pi. .sumptions in aid of, on citation by publication, 313. ;n>t a dead person, 338. on cost bond, 349. on case s ilmntted, when rendered, 453, 623. in evidence. 491. of the entry of judgment, 617. names ,,f parties must be stated, 618. >inty required in judgment entry, 619. inii-t ("Hi form to the case made, 620. iiui-*t be based on the verdict, 621. .f tin- relief granted, 622. when judgment rendered in certain cases, 623. recitals in judgments. (524. entry HHIK* pm tnnt\ (>'2~>. judgment by consent, ''rjt',. ss in judgment, ( '>J7. may include interest, 628. may be for or against one or more parties, 629. description of land, 630. only one final judgment. 631. may pass title to property. 632. enforcement of judgment; judgmentfor delivery of personal property, 033. foreclosure of liens. >>''> I. writ of possession awarded, 635. judgments on appeal from county or justices-' courts, 636. judgments against executors, etc., 637. tinal judgments, 638. interlocutory judgments, 639. .mptions in aid of judgments, 640. validity of judgments; collateral attack, 641. orders of court court loses control over at end of term, 666, 667, 695. '(tit in- and amendment, 690-696. trial court lias control over to end of term, though an appeal ia perfected during the term. 695, n. 4. lost, how substituted, 765. J r 1 M . .M KNTS BY CONFESSION (sec Confession of Judgment). .JUM'-IAL DISTRICTS of the legislature, 4, 35. judicial districts, 5. JCDK IAL POWER how vested. 1,34 JUDICIAL RECORDS in (91. of other states, 497. probate records, 493. JUDICIAL SALES setting aside, necessary parties, 167. venue of suits to set aside, 239. 7 .">',) INDEX. JURISDICTION in general. 65. of justices' courts, 2; p. 18, n. 1. conflicting provisions of the constitution, p. 18, n. 2. no distinction between law and equity. 8. how acquired, 13. at law and in equity, 66. power of the legislature, 67. concurrent, 68. courts of general, and of special and limited, jurisdiction, 69. collateral attack, 69, 70, 313. by consent. 71. over the subject-matter, 72. over incidental questions, p. 80, n. 8. over the person, how acquired, 73. over non-residents, 74, 312, 313. extra-territorial, 75. in local and transitory actions, 76, 77. fraud on the jurisdiction, 78. under various statutes, 105. amount in controversy. 107-110. to set aside a judgment, 117. to cancel a deed, 117. where a river or a road is a county boundary, 249. presumptions in aid of, 313. JURISDICTION OF COUNTY COURT in general, 3, 65, 104. may be increased or diminished, 104, and notes; 120. amount in controversy, 107-110. to issue writs, 118. JURISDICTION OF COURTS OF CIVIL APPEALS in general. 5, 93-95. JURISDICTION OF THE DISTRICT COURT original, appellate and supervisory, 4; p. 114 general principles in respect to, lOo. amount in controversy, 107-110. to issue writs, 118. JURISDICTION OF SUPREME COURT in general, 6, 79-87. JURORS (see Challenge of Jurors; Jury) how selected and summoned, p. 140. challenge for cause, p. 142, notes, qualifications, 121, 122. who exempt from service, 123. excused: fined for non-attendance, 137, and n. 1. to be summoned for a day to be designated, 443. JURY (see Deliberations of the Jury) when demanded, 19, 33, 458. challenge to the array, 19, 33, 463. to be sworn; number required to compose a jury, 19. deliberations; returning the verdict, 26; ch. 36, p. 559. how impaneled, 33. for the week, how made up, 138. in trying plea of personal privilege, 252. must be demanded, 451, 457. right of trial by jury, 454. jury trial in default cases, 455. trial by jury in probate matters, 456. must be demanded and fee paid, 457. call of dockets, 458. deposit of jury fee; affidavit of inability, 459. entry of suit on jury docket, 460. jury trial day to be fixed by order, 4il. withdrawal of application for jury, 642. INDEX. 751 V ( ontinued) drawing a jury. 464. challenge tor cause; procedure. 43.1. peremptory challenges, wh.-n made: procedure; calling the jury, 460. inptory challenges defined; number of ; when made, 467. ui'ls of challenge, 468. challenges to be decided promptly, 469. swearing the jury. 470. number required to compose a jury. 471. number required to render a verdict, 472. may take charge with them on retiring, and may ask further instructions, 561. discharged in case of disagreement, 592. discharge.! in case of sickness, etc., 593. discharged ly final adjournment, 594 case to be tried again in case of discharge of jury, 595. returning the verdict, 597. verdict to be in writing and signed, 598. receiving the verdict; disagreement, 599. polling the jury. 600. verdict informal or defective, or not responsive to the issues, 601. JURY COMMISSIONERS their qualifications. 134. oath of. 126, 127. notice to and attendance of, 125. procedure where none are appointed, 128. sessions of; duty of clerks, 129. JURY FEE must be paid. 457, 459. affidavit of inability, 4">9. JUSTICES OF THE PEACE jurisdiction; may issue writs of attachment, etc., 2, 104, appeal to county court, 120. LANDLORD AND TENANT right of action for trespass on land, 187, 189. landlord may be made a party in trespass to try title against tenant. 213. LAND TITLES when judgment may pass title, 632. jurisdiction of suits concerning, 103, 104, 111. necessary parties to suits, 177. actions against non-resident or unknown owners, 184, 812. right of intervention, 212, ~M:i. power of a state to settle. 812. 632. record of certain titles confirmed, 512. joinder of causes of action, 868. certain transfers or deeds not to be withdrawn from land office, 495. certain titles not evidence, unless, etc., 511. venue of suits concerning, 285. LAWS how proved, 486. LIENS jurisdiction to enforce, 103, 104, 109, 112. Tien-holders as parties to suits, 178. venue of suits to foreclose. 283. foreclosure, form of judgment, 634. writ of possession on foreclosure, 6U5. LIMITATIONS - wh.-n suit deemed comment I of suit on death of plaintiff, 838. LOCAL AND TRANSITORY ACTIONS jurisdiction, 76, 77. venue. 217. LOST INSTRUMENTS, SUPPLYING in general, ch. 53. p. 718. venue of suit, 219. depositions. 387. recorded instrument, copy admissible in evidence, 506. LUNATIC - guardian ad litem for, 193. M. MALICIOUS PROSECUTION venue of actions, 229. MANDAMUS courts and judges may issue, 56, 57, 118. may issue in vacation, 59. when returnable, 59. for relief of a member of a society, 72. jurisdiction of supreme court. 91, 92. to compel a judge of the district court to proceed to trial, 91, 98. or a county judge, 98. against heads of departments, 92. venue, 242. power of courts of civil appeals, 98. necessary parties, 175. to compel entry of judgment, 617. MANDATE issues on payment of costs, 742. MARRIAGE of female plaintiff or defendant, 321, 322. MARRIED WOMEN venue of suits against, 221. acceptance of service of process, p. 312, n. 3. MEASURE OF DAMAGES charge of court, 577. MECHANICS' LIENS parties to suits on, 181. right of intervention, 212, 214. venue of suits, 246. MINORS as parties to actions, p. 155, n. 10; 189. appointment of a guardian ad litem, 193. may sue by next friend, 194. venue of proceeding to remove disabilities^ 219. service of process on, p. 298, n. 3. agreement to arbitrate, 746. note. MINUTES OF COURT must be read; must contain what, 64 MISTAKE in return of citation, 293. in judgments, may be amended, 693-696. MONTH defined, 772. MORTGAGES mortgagee a necessary party to a suit, when, 178, 196. parties to suits to foreclose, 179. venue of suits to foreclose, 233. form of judgment foreclosing, 634 ISP! MOTIONS wh.-n h.-ard and determined, 18, 446. ned, 7' I 1 . i. motion docket: filing motions, 710. -M-.1 (.(". \vll.-ll. notice of, 711. to supply lost pajwrs, 761, 762. MOTIONS AGAINST oFFlCKKS jurisilictiun of i-nnity court, o, 116. of the .li-^trict court, 4, 116. venue. 'Jl! i. notice of, 711. NAMES of parti. -s. inu-t !..-> -tated in citation, 269,270. must * in.lfx.-.l. i must be stated in judgment, 618. NEGLIGENCE charge of court, 57 1. NEWLY-DISCOVERED EVIDENCE as a ground for new trial. 076. NEWSPAPER notice by publication, 303-905. NEW TRIAL (see Bill fora A T etc Trial) in general, ch. 4:i. p. J21. general principl.-s. 27. where the citation is by publication, 27, 689. tit of interested thira party, 195. in case of judgment by default, 441. granted on motion; grounds to be specified, 663. will be granted, when, 664. judgment may be arrested, when, 665. time of making motion, 666. to be determined during the term, 667. not more than two new trials, except, etc., 668. necessity of motion for, 669. reference to alleged errors, 670. where the trial is by the court, 671. amendment of pleadings, 67','. effect of order granting, 673. counter-affidavits, 674. various grounds of motion for, 675. newly-discovered evidence, 676. surprise may be ground for, 677. absent testimony absence of a party or his counsel, 679. error in the charge of the court, 680. testimony illegally admitted or excluded, 681. verdict not supported by evidence, 68 :ii-t contrary to the evidence, 683, verdict contrary to law, 684. excessive or inadequate damages, 689. granted after close of term, 686-489. costs of suit, 721. NEXT FKIKND minor may sue or appeal by, 193, 194 t give security for costs, 848. NIL DIC1T judgment by, 438. NON EST FACTUM, PLEA OF to instrument sued on, 482. must be sworn to, 482L : al INDEX. NON-RESIDENTS jurisdiction over, 74, 312. actions against, to quiet title, 184. venue of s lits against, 223. service of notice on; effect of judgment, 291. notice by publication, 302, 303. state may determine status of citizens as against, 305, 312. validity of judgments against, 312. NONSUIT when taken, 25, 614. where a counter-claim is filed, 330, 614. right of plaintiff to take, 613. may be set aside, 615. effect, where cause is reinstated, 616. XOX SUM INFORMATUS judgment by default, 438. NOTARIAL ACTS in evidence, 496. NOTARIES PUBLIC may take depositions, 333. may administer oaths, etc., 775. NOTICE of intervention, 204 to absent or non-resident defendants; effect of judgment, 291. of taking depositions, 378, 379, 394. to produce papers, 398-402. of the hearing before an auditor, 702. form of notice. 707. service, 708. of motions, 711. of trial by arbitrators, 749. NUISANCES who may sue, 189. NUNC PRO TUNG ENTRIES of judgments, 625. o. OATH (see Affidavits) of jurors. 470. how administered, 480. of arbitrators, 749. form; who may administer, 773, 775. OBJECTIONS (see Exceptions) to citation, service and return, 300. to discontinuance, 329. to change of venue, 346. to depositions, 390, 391, 397. to improper argument, 546, 547. for defect of parties, 197-203. OFFICE trial of right to, jurisdiction, 114. OFFICERS motions against, jurisdiction, 117. defalcation; venue of suits, 228. authorized to take depositions, 383. not to act as surety, 658. OFFICIAL BONDS parties to suits on, 164, 165. OPENING AND CLOSING rule stated, 20, 474-476. : ORDERS - may !* <-t aside; litigants must take notice of. P. I'Airnr.s -m \CTIM\X K6 7fifer**ffcH) in iT'-in-ral. 1>: and sr.- ch. ?. p. 151. ~>ary and proper pnrtii--. i party in interest. 141. I lieji.-riciary. 140. mother. '. i liy one t'< .r i.ene lit of liini-flf and others, 144. join-lfi- df jilaiiititFs (ir lU-tVivlants having distiuct interests, 150. l.")l. join.l.-r ot -.-v.-ral Mlili^'ors. l.VJ. parties conditionally lialilf. 153. additional ]>arti-^. l!'i. , various actions, sec 14. "5-1 96. ulij.-.-ti..ii- )'..r defect "t' parti.--, p. ,'-,'::. as .auk ruiitcy, 209, and notes. |>ai; in partition, may t-'-tit'y. 177. PARTITION parti.- to y publication, 305. abatement of suit. proceedings and decrees in evidence, 504. PARTNERS actions hy ami against survivors, 159, 163. linst. It;.', 286. tement of names in citation. 269. "f citation on one, 2>;. dismissal as to one, >'M, and notes, agreement to arbitrate, 74(i, note. PARTNERSHIP ation on. . limit. -.1: attidavit of puljlication in evidence, 515. PAUPER OATH in general. :!50. PENALTIES \ND FORFEITURES jurisdiction, in::. I'KIMT.l.'TI'ATFNi; TKSTI MI >N V PERSONAL .\TTKND\XCK OF WITNESSES . ''I!. 1 S . | I. !'i;)i'Ki;TY o\\ . n.- in -nits concerning, 210. Vi-IIUi- of suits to I'.- HI of vain.- liy jury, til 1. jud _ . 033. i rmx _ tiling an 1 do--l. Cop 7' ( ! INDEX. PLEADINGS pk>as and exceptions, when determined, 18, 443-447. preparing and filing petition, 33. defensive pleading a waiver of process, 296. synopsis may be made up and read before trial, 449. costs, 730. PLEA IN ABATEMENT for non-joinder or misjoinder of parties, 197, 198. PLEA OF PRIVILEGE as to venue, may be waived, 252. POSTPONEMENT (see Continuance) to a future day of the term, 412. PRACTICE general principles, 8. how to conduct a lawsuit, 33. objections for defect of parties, 197-201. notice to produce papers, 398-402. directing a verdict, 583. taking cases under advisement, 623. remarks by the judge in the presence of the jury, 655. stenographer, 656. leading counsel; attorney of record. 657. attorney or officer not to act as surety, 658. deposit in court, 659. personal examination of injured party, 660. suits on contracts with or for a county, 661. city not required to give bond or security, 662. on "bill for a new trial, 688. on trial before an auditor, 703, 704. before arbitrators, 749, 750. PRAYER for citation, whether necessary, 263, note, practice as to the relief granted, 622. PREMATURE ACTIONS costs, 725. PREPARATION FOR TRIAL duty of the parties to be ready for trial, 17, 33. diligence in order to procure a continuance, 416, 421. PREPONDERANCE OF EVIDENCE charge of court, 567. PRESUMPTIONS in favor of return of process, 309. in aid of judgment on service by publication, 313. in aid of judgments, generally, 640. PRINCIPAL OBLIGOR - discontinuance as to, 329. PRIVILEGE OF WITNESS to refuse to answer, 372. from arrest, 372. PROBATE RECORDS in evidence, 492, 493. PROCEDENDO jurisdiction of supreme court, 91. PROCEEDINGS IN REM action to divest title, 291. judgments against non-residents, 312. PROCESS (see Citation; Writs) duties of parties respecting, 33. requisites of writs and process, 62. when returnable. 62. from the supreme court, 91. INI PROl : -inued) fri)in courts of civil ap- . me "ii Sun. lays or holidays, except, 258. f \vli. ii r.-turnable. . iv.-. 300, re.jui-ites if citation by publication, :jtat.->. ln>\\- proved, 498. H \>r.KS I'KNDF.NTK LITE as partu-s t< suits, 183; p. 2'-il, 11. i. may intervene, 211. Q. 3HTNO citation: effect of motion, 297. '.-riF-TIXii TITLE as against non-resident or transient persona, 184. citation oy publication, 305. \V\RRAXTO ilings in vacation, 59. jurisdiction of supreme court, 91, 92. of district and county courts, 118. additional parties, 195. v.-nut-. -,'r.i. -':;. commenced, 253, R. KAII.R" AD COMMISSION' rati-s. rules, etc.. admissible in evidence, 515. KAII.!:n\l) cnMI'ANIKS- p,u is on time checks, 150, 181. v.'i - against. U'l'.. 245. vi-mif of -nits to forfeit la- l.y ni.-clianics ainl latiorera, 246. ! citation. I'-ni'-iit of suits against. 335, IVKHS- i- ap|K,int<-d in vacation, 59. r to intervene. 2TJ. ;:d to appoint. 2-11. service of citation ..n. abatement of actions on discharge of, 337. INVENTION \vhetler plaintiff may take a nonsuit, 380. KhED IN^TKM-MENTS in e\i i.-nc.-. BMhfll >RD8- in eviil.-nc.-. J'.'n ~,\ }. of other stat- -. lio\v proved, 498. 75 S INDEX. REHEARING in supreme court, 30. RELEASE OF ERRORS liy ri-inittitnr or amendment of judgment. 696. RELIEF what relief may be granted by the court, 623. excess in judgment, 627. RELIGIOUS BELIEF does not disqualify as a witness, 480. L'F.MITTITUR may be entered in vacation, 59. excess in verdict or judgment, 690. in vacation, 691. after appeal, 692. REMOVAL FROM OFFICE jurisdiction, 115. venue, 219. KEPLEADER when ordered, 448. RES ADJUDICATA splitting causes of action, 367. RETAXING COSTS. 736. RETURNING THE VERDICT in general, 597-603. RETURN OF PROCESS when returnable, 275. citation must be returned on or before return day, 279. requisites of return of citation, 287. return not served, 288, 289. mistake in return of citation, 293. void or defective, 300. false. 301. citation by publication, 309. RULES OF PRACTICE - in general, 8, 101. supreme court may make and enforce, 101. S. SCIRE FACIAS on death of a party, 316, 317, 334. SEAL OF COURT in general, 63. process must be under seal, 62. including citation, 272. 303, 304. on notice to absent or non-resident defendants, 291. amendment of citation'by affixing, 292. not required on subpoena, 368. SECURITY FOR COSTS (see Costs) in general, 11, 33. clerk may require security, 347. defendant or any nit must be served, 960^ 887. _:lili>t i-i'iiiili, [ or on incorporated comjianies or receivers, 283. n insurant*' companies, 384 or on for 285. or dii a firm. . inu-t U- serve 1 t. ii I !\-s before return day, 290. irn day. vnM. absent or non-resident defendants, 291. ptani-i- or \v ;i W. v tin- ot;'. . 280. tinit- of i>ul)li<-atii>M of citation, 307. VICE <>r N. .TIC'E- ni Kfii'-i'al, ; SHERIFF duty in siniiinoniii.^ jurors, 13* niu-t !> -\v..i . service of citation \vii.-n a party to the suit hv d.-piir. duty as to imlorsoment and return, 279. irn. 301. dutir> in ^ivin^ notice ly publication. 'ipn-na in taking d-[M)sition. ;W4. ilutii-s wlion having a jury in cluirge, SIDK l:\l: KKMAUKS prohihiti-'l. I I''-. fDER jurisdiction, lu!. ;ii |. -nit. ?1'J. - how sul.iiiittt- : I A I. .It 'I" - 1. u'l'oKM \NCK- : ??. SIM.ITTIV -FACTION H o give security for cost^. STA i may be 1 n. .V.t. w),. i to th- j 7''>. of district courts I, '>'>. :.il t. rms ..I district court, '>'',. ~>\. jii.l^niriits must be pronounced at a lawful term, 54. TESTE of citation. 27 1 , 1 . :!0:',. of subpoena, 368. of commission to take depositions. TIME rules for computation of time, 7615-??,?. TITLE may be passed by judgment, *>''-. TOR'I committed beyond the limit* of tli- stato. jurisdiction, 77, liability of master and servant, p. 213, n. 6. venue of actions, ,'-'.. joinder of causes of action, 364, 365. TRANSIENT PERSONS action- a^aiiiNt, to quiet title, 184. velllle of SUlts, H'2. i-itati..n l)v publication. :50:, 305. TUANS1TORY ACTIONS jnrixlic'tion, 76, 77. TRESPASS liability of joint ti . 186. on lanil: who may sue, 187. veini.- of suits, "..".). tletlm-,1. ,'.".!. 1K1>1'ASS TO TRY TITLE necessary parties. 1??. ripbt of intervention, -Jll. 'Ji:{. B8& iliscuntinuanoe by one plaintitT, 332. costs, 726. TRIAL call of c-ises for, IN IN-U'-S ( ,t law to be lir-t li-|>osed of, 18. may be by court r jury. 1\ opening tin.- rase, -,'u, j.;, i?.j. V 1 '*- INDEX. TRIAL (continued) B to l)i- tried when called, 442. day set for jury docket; demurrers, etc., to be disposed of; summoning jurors. 443. call of non-jury docket, 444. issues of law and dilatory pleas, when disposed of, 445. motions and exceptions to merits, when decided, 446. exceptions undisposed of on call of cise; deemed waived, when; costs, 447. trial ami niliiu-nt: repleader; no trial on immaterial issue, 448. synopsis of pleadings may be made up and read, 449. abandonment of part of cause of action, 450. directing a verdict, TiS:!. order of proceedings, 473. right to open and close, 474-476. TRIAL AMENDMENT either party may file, 448. TRIAL BY THE COURT general rules govern, 451. agived cas;'. 452. case submitted to judge to be decided during the term. 453. bill of exceptions; conclusions of law and fact, 542, 601. new trial. 6T1. TRIAL BY JURY (sea Jury). TRIAL OF RIGHT OF PROPERTY jurisdiction. 103, 104, 113. proper and necessary parties, 168. intervention, 215. ho\v docketed, 254. TRUSTEES and beneficiaries, as parties, 142. u. UMPIRE in arbitration, 7.T3. UNKNOWN HEIRS notice by publication, 304, 305, 307. U NK NOW N PERSONS actions against to quiet title, 184. venue where residence is unknown, 223. citation by publication, 305. appointment of attorney for, 310. Y. \TION proceedings in, 59. discontinuance in, 328. iil ing statement of facts, 651. entry of remittitur, 691. VARIANCE of citation from petition, 292. VENDOR AND VENDEE parties to suits between, 177. 195. as to venue of actions, 235, 236. VENDOR'S L1EN- parties to suits to foreclose, 180. VENUE OF ACTIONS (see Change of Venue) in general, 9; ch. 10, p. 243. plea of personal privilege, p. 81, n. 6. where one is brought in against whom defendant claims a judgment, 195. objections not waived by motion to quash citation, 297. vi-: N i)_ J17. ill Mill i l>y particular law. 'Jl'.'. p.-w.-r i>l' (lie leiri-latuiv t> change the law. 0'2; 1 .lef:ilcatioii. ill > .inc. otfiM.- wi,, i ;L: t'ul atta< > linifiit or >i-t|iit trai ii suit- f p.-1-s..nal propt-rtN riling inlii-rit: partition, suit* (n. . -rniii^ laml. - li of warranty nl I snit- I'd!- .li\ enjoining juil^im-nts. . ita actimis on. ainl to revive or raoate, 239. pr'c ' iin.Lrs in prohatr. -Jl". suit auain>t a c"iinty, 'J41. gainst lit-ails of tit- part im-nts. 21'*. suit-- t" fi'i-f.-it railrna.l laiiil. ','J4. suit- against private corporation*, inchi>liii rail mail ci.inpai. i-ailroail conipanie.-. suit>- a.L:ain>t foreign corporations. 'JIT. suit- a.uainst insuraiire companies, i wli-'ii a river or roal. plea ol p.T-onal privilc^'i- may le waiveil; how t VERDICT ilchheration-, of tin- jury. 'Jf,. :',:!: cli. :iC.. p. may l>e ^.-neral or sp -.-lal. ','ii. numlx-i ol jurors n-ijuiivil to returiiin-. .">!i;-Citll. t>. !> in wntini: an.l siyneil. inii-rmal or 'leral venlict. ' ,1 vei-.lict : -p -cial i mu-t co\--rall tin- i ue-: rmiclu- trial I >y the judge, 604. live or en.'iii-i.u- liinlin^s of fact. CU3. lorin ..I vei-.lict. ' linty reipiin-'i mu>t r- --ponil to the i- lini-t comprellellil the whole issue, 609. tin ':!>_ ; - i" i'. in. v;u, rty. liow asse-xcil. 1'ul. 1 ! ','. jll'lmilellt IIU1 li'Jl. to law <>r t-vi.U-tire. u lien j;roiin.l fur a new tria -!'l h EUOHT8 rali w. \\- \ ol i -.inal pri\ I ot oi'i. -ctioii t 1 on a hoi - .iiul nmtioiis not called to the attention of t !.">. U?. TC4 INDEX. WAIVER OF PROCESS in general, 73, 294, 295. agreement as to venue, 220. by filing defensive pleading, 296. WARRANTY OF TITLE venue of suit for breach, 236. WEEK defined, 771. WILLS in evidence, 493. WITNESS FEES in general, 729. payment or tender at time of summoning, 17, 369, 422. party summoning liable for: taxation, 371, per diem and mileage, 369, 729. WITNESSES (see Examination of Witnesses) compelling attendance at the trial, 17. competency, 21, 477-480, 481. examination of, 22, 519. may be put under the rule, 22, 530. subpoenas for witnesses; form and service, 368. attendance of witnesses, how enforced: fees, 369, diligence must be used to procure attendance of witnesses, 370. party summoning witness liable for his fees; taxation of, 371. refusal to testify, 372. privileged from arrest, 373. parties compelled to attend and testify, 374. interpreters, 375. subpoena duees teoum, 376. refusal to testify in taking depositions, 384. diligence in procuring attendance, 421. impeachment, 522-526. re-examined on request of jury, 390, before arbitrators, 749. WRIT OF ASSISTANCE when issued, 622, WRIT OF ERROR from supreme court to courts of civil appeals, 30, 79. WRIT OF POSSESSION when awarded, 6 ; 35, WRITS powers of county courts, 3, 57, 118, of district court, 4, 56, 118. of courts of civil appeals, 5. 98. of the supreme court. 6, 91. may be issued in vacation, 59. general requisites of writs and process, 63. WRONGFUL ATTACHMENT necessary parties, 188. venue of actions for, 229, 230. RIGHTS BY WM. G. MY5R, Author of Federal Decisions." RETROSPECTIVE AND ARBITRARY i,EGlSWATION, affecting Vested Rights of Property. OF ]*EGIS1,ATIYE POWER, as regards Rights in the Nature of Property. CONSTITUTIONAL GUARANTY of due Process of law for the Deprivation of Property. THE CHAPTER ON PRIVATE CORPORATIONS is alone worth the price, being an exhaustive discussion of the rights derived by Corporations under their Charters. SIX DOLLARS. BOOK CO. Send for Free Sample Pages. ( ** r /^ TT I 0( Sold by all Law -Booksellers. M JL V W U I iJ FEDERAL \ Containing in 30 Large Vote DECISIONS OFTfjE UNITED UPREME. Giacui DISTRICT HlTTl to cases iti point as to words nxa. Dictionary HlGHEjT SAME COURT ANY OTHER FORNj Cj|IEFJlJ;r!CEW/\ITE ENDORSE o MYERS "I AM MORE THAN f utR SftTl$fl0 OF TtJE. WORt\ HIS ASSOCIATES 'EACH BOUCMT A SET MTER'S FEDERAL DECISIONS. The below list gives the numltcr of volumes, and the contents of each, except the minor topic*. Full descriptive circulars sent on application. -xllit* ; / v. n ,/<, ,-.. Arbitration : Sign I ttnrin UK K 1:1:1.1: a re, we think. of more value than any treatise on either subject, both on account of their compre- hensiveness and the method of treatment ?. Hanks: Hill* ///// \f,:. Approved John \V. Daniel, author of a well-known work on Negotiable Instruments. 1,100 6. Itomls, Municipal, Corporate and Official. Approved by John W. Daniel. 1,000 pages. < "t-riers, edited by James Schouler, Clr.impcrty, Churches t'iti/.ens and S, ronsiirnor and Consignee, edited by Mr. M\er. '.<: : pages. . 7. Ctmxtihttiniial Law. Cases approved by I'n.f. \V. <.. 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