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the Payne tract on the ground and give each must be taken by you as placed in the Hartract its measurement north and wind up at grave by the Hermann-Payne partition suit, the river, as the surveyor says he did in otherwise not.” Because the submission of figuring the tracts in making his field notes the meaning or intent of the partition surin the office, then each gets approximately the veyor or commissioners, as done, was erroamount the commissioners reported to the neous as applied to the facts of this case. court each should have, and there would be  Having determined that from a proper no land unpartitioned.
construction or interpretation of the facts of [3, 4] It will further be noted that the be this case they show such an ambiguity as ginning corner of the 108-acre tract was not required the trial court to submit the case to located on the ground, but was located at the the jury, then, to determine whether the northwest corner of the Dunman, and the charge of the court complained of was error, measurements for each subdivision were cal. it becomes necessary to determine what isculated from the southeast corner of the sues involved were necessary to be passed on Dunman. If we had no evidence as to how in order that the court might render a propthese descriptions were arrived at, then weer judgment. would, under the rules applicable, begin at [6, 7] As was said in Barnett v. Mahon, 31 the San Jacinto river and come south in lo- S. W. 329: "The partition being the act of cating the lines, because the field notes call the court, the intention of the court is what for them that way; but since the field notes is to govern.” The decree consists of the in the decree of partition do not cover all approval or adoption of the report of the the ground, and they were all made at the commissioners. This report was accompanied same time by the same surveyor, and that by an attached plat and field notes. The diwhich is called the beginning subdivision is vision intended then is that portrayed in the of no more importance by reason of its po plat and field notes. The plat expressly made sition in the report of the commissioners as a part of the report of the commissioners, adopted by the court than any other, for the and also adopted by and made a part of the same reason that that which is designated as decree of the court. Since the plat covers the beginning corner of a survey is not usu- all the ground intended to be partitioned, ally of any more importance in determining and the field 'notes as they appear in the the location of a survey than any other cor- report do not cover all the ground, the maner in such survey, so we conclude that the terial matter of inquiry was what was the inlaying out and platting of lands into sub tent of the commissioners in their report, and divisions is one piece of work, and if there is the court's intention in its adoption by deuncertainty as to the location, the jury must pass upon the matter. State v. Sulflow, 128 missioners began at the south and platted to
cree? So the question was whether the comS. W. 653; Lyon v. Waggoner, 37 Tex. Civ: the north, thus fixing the line between the App. 205, 83 S. W. 46. So we conclude that the trial court did not err in submitting the Hargrave and the J. D. Bourgeois, where the question to the jury.
appellees contend it is, or whether they be The second assignment of error groups the gan at the north and coming south fixed or fifth, sixth, and eighth as raising the same
intended that the line in question should be question, viz,: Did the court err in submit- fixed where appellants claim it is; and, beting the case under the following paragraphs sides, the line in question was not run, and of its charge: “(6) On the other hand, if you the jury must necessarily find where it was do not believe from a preponderance of the intended to be. evidence that the said boundary line, as fixed
What we have said above disposes of the in the Hermann-Payne partition suit, was third and fourth assignments; they having north of the wells in question, as claimed by raised virtually the same questions. the plaintiffs; or if you believe the commis
 The sixth and seventh assignments sioners did not mean to put the boundary charge that the trial court erred by its genline north of the wells in question—then in eral charge in submitting to the jury as one either event named in this paragraph you of fact the question of agreed boundary and will find for the defendants. (7) If you be- estoppel instead of determining the issue as lieve from the evidence that the northwest one of law against the defendant. corner of the M. Bourgeois, as called for in
There was ample evidence to raise the the Hermann-Payne partition suit, cannot question of agreed boundary, and the court be ascertained with accuracy, but that its should have submitted the question, as he northeast corner can be, and that by revers- did, to the jury; but if we are in error in ing from that point the calls of such field this, there being two grounds upon which de notes for such tract, and then tying thereto fendants could recover upon a finding by a in their order by course and distance the jury in their favor, and not knowing whether Boudreau, the J. D. Bourgeois, and the Har- the first was controlling, we would not set grave tracts, the 90-foot strip in dispute will the judgment aside. be in the Hargrave, and you believe that The other assignments are to the quessuch result conforms to what was done and tion of oil taken from the 90-foot strip and intended by the surveyor in the Hermann- not necessary to decide. Payne partition suit, then such 90-foot strip Affirmed
the porter pushed the deceased off the train MISSOURI, K. & T. RY, CO. OF TEXAS v. while it was running, and that his death reBROWN.
sulted from that wrongful act; but the con(Court of Civil Appeals of Texas. Austin. tention is that the evidence fails to show April 2, 1913.)
that the deceased was a passenger. The 1. CARRIERS (8 383*) PASSENGER'S ACTION proof indicates that the deceased boarded
FOB INJURIES-SUFFICIENCY OF EVIDENCE, the train without a ticket for the purpose QUESTION FOR JURY.
of going from Bruceville to Lorena, a disIn an action for the death of a person thrown off a railroad train by a porter, evidence tance of five or six miles, and that he had in held sufficient to make a question for the jury his pocket more than enough money to pay as to whether deceased was à passenger or a his fare. The plaintiff also submitted testitrespasser. [Ed. Note. For other cases, see Carriers, left Lorena, the deceased was found lying
mony to the effect that, soon after the train Cent. Dig. 88 1492–1496; Dec. Dig. 383.*]
across the track in a semiconscious condi. 2. CARBIERS (8239*)-CARRIAGE OF PASSENGERS—"PASSENGER"-"TRESPASSER.
tion. A person who boarded a train, intending to John Bolden testified as follows: "I repay his fare when demanded by the person en; member the occasion of Spencer Brown betitled to receive it, and who would have paid ing hurt on the railroad at Lorena. No. 4 it upon such demand to the conductor, was a
passenger," and not a "trespasser," although came up. I do not remember the date; it he had already delivered a sum equivalent to has been so long, but I know it was in the his fare to the porter, who had no authority to evening about dusk. No. 4 ran in and I was collect fares.
there at the depot, and after it left some [Ed. Note. For other cases, see Carriers, Cent. Dig. $$ 974, 975; Dec. Dig. $ 239.*
one says, "There is a man lying across the
And then some of us For other definitions, see Words and Phrases, track back there.' vol. 6, pp. 5218–5227; vol. 8, pp. 7748, 7094.) rushed back to see what it was, and found
this boy. I did not know him. We made Appeal from District Court, Falls County; arrangements to take him over and put him Richard I. Munroe, Judge.
in a house. After we got there, we never Action by Mark Brown against the Mis. could get anything out of him though. He souri, Kansas & Texas Railway Company of
was unconscious. He would wake up, it Texas. Judgment for plaintiff, and defend
seemed like, when we would say something ant appeals. Reformed and affirmed on con
to him. We never could get him to talk, dition that plaintiff file remittitur.
except he seemed to have money on his Spivey & Carter, of Marlin, for appellant. mind, and every now and then he would say, Nat. Llewellyn, of Marlin, for appellee. 'I had morey; I paid my way,' and he would
go back unconscious. That is all we could KEY, C. J. This is the second appeal in get out of him. He was kept there all night this case (Railway v. Brown, 135 S. W. 1076), and taken to Waco next morning. That is and reference is here made to our former all I know about it. I know now who the opinion for a full statement of the nature of boy was; I just know he was a Brown; I the case. The former judgment was revers- never did pay much attention to his name. ed on account of an error in the court's I disremember what the boy's name was. charge, and in the refusal of a requested in- Yes, sir; he made that assertion several struction. At the last trial the case was times that he had money and paid his way; properly tried, and a verdict and judgment and we would ask him who he was and were rendered for the plaintiff for $2,000, to where he was from, none of us knew him, reverse which this appeal is prosecuted. and it seemed like he would sink back un.
But two assignments are presented in ap- conscious." pellant's brief, and these are, first, that the Dr. Gordon, who went immediately to see evidence was not sufficient to authorize the the deceased and testified as to the nature of court to submit to the jury whether or not his injuries, also stated: “When I got to the deceased was a passenger on appellant's him he was in an unconscious condition and train at the time he received the injuries suffering from a considerable shock. He did which resulted in his death; and, second, not make any direct statement to me, but I that the verdict is excessive.
heard him saying something while I was  As to the first question, the testimony attending to him about being on the train is substantially the same as it was on the and they shoved him off; he was in a semi. former trial, and as stated in our former conscious condition." opinion, and we held that it was sufficient to Claude Elliott testified that as the train require the court to submit the case to the approached Lorena he went into the negro jury. It is true that, in order for the plain- coach, saw the porter and another man tiff to recover, it was necessary to prove that standing on the front platform of that coach, the deceased was a passenger on appellant's and he stated, in effect, that the porter pushtrain, and that he was pushed off of it by ed the other man off the train. the porter, as alleged by the plaintiff. It is Counsel for appellant contend that the not denied in this court that there was suffi- mere statement of the deceased to the effect cient evidence to warrant a finding that that he had money and had paid his way
was not sufficient evidence tending to show affidavit of the party stating his inability to that he was a passenger to authorize the pay the costs which may be contested by any submission of that issue to the jury. The
officer of the court or party to the suit, where
upon the court or justice of the peace shall hear argument seems to be that the statement re the evidence and determine the right of the parferred to fails to show that he paid his fare ty to his appeal, a justice of the peace, who to the conductor, the only person on the upon a contest set aside an affidavit in lieu of train who was authorized to receive it, and mus to send up the transcript in order that the
a cost bond, could not be compelled by mandathat it also fails to show that he boarded appellant might perfect his appeal, where the the train in good faith, intending to pay his record showed the ability of appellant to pay fare. We are unable to agree with either of the costs or at least a part thereof. these contentions. If it be true, as contend- Cent. Dig. § 37; Dec. Dig. $ 10.*]
[Ed. Note. For other cases, see Mandamus, ed, that he had not paid his fare unless he handed the money to the conductor, then it
2. MANDAMUS (8 68*)-NECESSITY OF CLEAR
LEGAL RIGHT. seems to us that the general statement that
An officer cannot be compelled by mandahe had paid his fare embraced by implica- mus to perform an act unless it is one that is tion the statement that the money was deliv. imperatively required of him by law to perform. ered to the person authorized to receive it,
[Ed. Note.-For other cases, see Mandamus,
Dec. Dig. 8 68.*] otherwise it would not constitute a payment of his fare. It is true that upon the last 3. JUSTICES OF THE PEACE (8 159*)—APPEAL
SECURITY FOR COSTS APPEALS IN FORMA trial the witness said that he stated that
PAUPERIS. he had paid his way, but we fail to see any Under Rev. Civ. St. 1911, art. 2394, relasubstantial difference between that and the tive to appeals from justice court, which pro statement that he had paid his fare.
vides that an appellant who is unable to pay
the costs of appeal or give security therefor  Furthermore, whether the deceased may nevertheless prosecute his appeal by makmeant by the statement referred to that being strict proof of his inability to pay the costs had delivered the money to the conductor or any part thereof, an appellant, who with his
wife owned as community property two cows or to the porter, it seems clear to us that it and a yearling heifer which were not shown tended strongly to show that he boarded the to have been the proceeds of a homestead or to train intending to pay his fare when de- be milch cows or cows intended to be used as manded by the person entitled to receive it, milch cows and which were worth $105, was not
entitled to appeal without giving security for and that he would have paid it upon such
costs. demand to the conductor, although he may
[Ed. Note.-For other cases, see Justices of have already delivered to the porter a sum the Peace, Cent. Dig. $8 544, 550-578; Dec. of money equivalent to the fare; and, if Dig. $ 159.*] such were the conditions at the time of his 4. COURTS ($ 207*) – APPEAL SENDING UP injury, then he was not a trespasser but a
A county court has jurisdiction to compel passenger. Hence we conclude that the first
a justice of the peace by mandamus to send up assignment is without merit, and must be a transcript in order that an appellant may peroverruled.
fect his appeal; such jurisdiction being necesWe sustain the second assignment, and sary to the enforcement of that court's jurisdic
tion. hold that the verdict is excessive to the ex
[Ed. Note. For other cases, see Courts, Cent. tent of $750. If the appellee remits that Dig. 762; Dec. Dig. $ 207.*] sum by April 16, 1913, the judgment will be reformed and affirmed; otherwise the case
On Motion for Rehearing. will be reversed and remanded. 1
5. MANDAMUS (8 187*)-APPEAL-REVERSALSUBSEQUENT PROCEEDINGS.
In a mandamus proceeding in the county RICE, J., being disqualified, did not sit court to compel a justice of the peace to send in this case.
up a transcript in order that an appellant might perfect his appeal, on reversal of the judgment granting the writ on the ground that appellant had not shown that the justice of the peace
erred in refusing to permit him to appeal withHART, Justice of the Peace, v. WILSON.
out giving a cost bond, the cause would be re(Court of Civil Appeals of Texas. Amarillo. manded to the county court, which could retry March 29, 1913. On Motion for Re- it upon such pleadings and testimony as would hearing, April 26, 1913.)
meet the issues involved and not to the justice
court. 1. MANDAMUS 10*) INEFFECTUALITY OF WRITMAPPEAL-SECURITY FOR COSTS.
[Ed. Note.-For other cases, see Mandamus, Under Rev. Civ. þt. 1911, art. 2394, rela- Cent. Dig. $$ 427-437; Dec. Dig. $ 187;* Ap tive to appeals from justice court, which pro- peal and Error, Cent. Dig. & 570.j vides that where the appellant is unable to pay 6. MANDAMUS (8 187*) APPEAL FUNDAthe costs of appeal or give security therefor he MENTAL ERROR. may nevertheless prosecute his appeal but shall Where the petition for a writ of mandamus be required to make strict proof of his inability to compel a justice of the peace to set up a to pay the costs or any part thereof, that such transcript in order that an appeal to the counproof shall be made before the county judge orty court might be perfected alleged the filing of court trying the case and shall consist of the a pauper's affidavit in lieu of a cost bond, but
did not attack the subsequent action of the jus1 Remittitur filed April 9, 1913, and judgment tice of the peace in setting aside such affidavit reformed and affirmed. Costs of the appeal on the hearing of a contest, and the evidence taxed against appellee.
failed to show that the justice erred in setting *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
it aside, the granting of the writ was a funda-, hear the evidence and to determine the right mental error apparent upon the face of the of the party to his appeal.” record.
"Art. 2395. When the bond, or the affi[Ed. Note.--For other cases. see Mandamus, davit in lieu thereof, provided for in the Cent. Dig. $$ 427-437; Dec. Dig. & 187;* Appeal and Error, Cent. Dig. § 570.*]
two preceding articles, has been filed, and
the previous requirements of this chapter Appeal from Wilbarger County Court; have been complied with, the appeal shall R. S. Houssels, Judge.
be held to be perfected.” Manda mus by W. N. Wilson against P. L.
In discussing this matter, it is to be noted Hart, Justice of the Peace. From the judg. that the statute regulating appeals from the ment, defendant appeals. Reversed and re-justice court, prescribing the affidavit in manded.
forma pauperis, is in substance the same Berry & Stokes, of Vernon, for appellant. and in language in some respects identical, Storey & Warlick, of Vernon, for appellee. as the statutes prescribing the same affi
davits in lieu of an appeal bond in cases of
appeal from the district and county courts ; HENDRICKS, J. This action is one of and the decisions of the higher courts in mandamus, instituted in the county court of construing the latter statutes, on account Wilbarger county, Tex., by appellee, to of the identity of the statutes, would necescompel Hart, the justice of the peace, and sarily control the construction of the statute appellant herein, to “prepare a complete with reference to appeal from justice courts: record and transcript of all the proceedings "The statute defines what the proof it rehad" in the justice court in the case of quires shall be, when it provides that it Stultz v. Wilson, “in order that a trial de shall consist of the affidavit of said party, novo may be had in said county court of stating his inability to pay the costs, and Wilbarger county"; the record and evidence its evident purpose is to enable the appelin this mandamus proceeding showing that, lant to make prima facie proof of his inat the trial of the original cause in the jus- ability to give the required security and to tice court, Stultz, the respondent in man.
enable those having conflicting interest to damus, and appellant herein, obtained a
controvert such proof." Smith v. Buffalo judgment against Wilson in the justice
In the court for $129.95 and foreclosure of an at- Oil Co., 99 Tex. 78, 87 S. W. 659. tachment lien upon certain horses, the evi- absence of a contest, “the affidarit of the dence further disclosing that the appellee party is sufficient,” without further proof, and relator herein, as the unsuccessful lit- to make out the prima facie case of inabiliigant in the justice court proceeding, at- ty. Graves v. Horn, 89 Tex. 78, 33 S. W.
322. tempted first to perfect his appeal by giving security for costs, which was unavailing,
The statute with reference to appeal from and, second, within the requisite ten days, justice court, where appellant is unable to in lieu of the appeal bond attempted to com- | “pay the costs of appeal, or to give securiply with the other provisions of the statute, ty therefor," says that, “in order to do so, by filing an affidavit in forma pauperis, and he shall be required to make strict proof of making proof of his inability to pay the his inability to pay the costs or any part
thereof." New Revised Statutes, art. 2394. costs, or any part thereof.
 The articles of the statute with ref. The statutes with reference to appeal from erence to appeals by affidavit from a judg- district and county courts uses the identical ment of the justice court are as follows: language quoted, and in passing upon the
"Art. 2394. Where the appellant is unable above language of the statute the Supreme to pay the costs of appeal, or to give securi-Court said, in the case of Pendley v. Berry, ty therefor, he shall nevertheless be en- | 95 Tex. 74, 65 S. W. 33: "We think the titled to prosecute his appeal; but, in order statute means that where the party can pay to do so, he shall be required to make strict the costs, or a part thereof, he must do so. proof of his inability to pay the costs, or This is implied in the rule that unless he any part thereof. Such proof shall be made can show his inability to pay any part of before the county judge of the county where the costs he cannot appeal upon affidavit such party resides, or before the court try-alone. Plainly, if this state of facts cannot ing the same, at any time within ten days be shown, the intention is that the party from and after the date of the judgment shall do that which he cannot show his inarendered therein, and shall consist of the vility to do." (The emphasis is ours.) affidavit of said party stating his inability All these statutes also use the following to pay the costs; which affidavit may be language: "Such proof shall contested by any officer of the court or sist of the allidavit of said party stating his party to the suit; whereupon, it shall be the inability to pay the costs." And the Supreme duty of the court trying the case, or the Court further, in commenting upon the case justice of the peace of the precinct in which of Stewart v. Herdenheimer, says that the said case was tried, or the county judge of case simply held that the words “or any the county in which the suit is pending, to part thereof,” with reference to the inabil.
ity to pay, does not have to be inserted in (3] This record conclusively shows that the affidavit, and the affidavit without such four horses were conveyed to the relator's language is sufficient "when uncontested,” wife, and suggests that it was done in conas was previously held in the Graves-Horn sideration of the relinquishment of her homeCase, supra; but when it comes to a con- stead right, transferred previously by hustest, the words of the statute, “he shall be band and wife; and the horses conveyed to required to make strict proof of his inabil. her as indicated in the record, in order ity to pay the costs, or any part thereof," that she might hold the property for reinis construed by the Supreme Court in the restment in another home. Relator said, following language: “But the previous part "that the bill of sale was issued to her for of the statute cannot be wholly rejected the reason that she refused to sign the (meaning the last quotation from the stat deed to the home unless this property was ute) and its operation is to require that up- placed in her name." "She wanted it that on contest the facts must show the inability way so that she could see that it went into spoken of"—that is the inability to pay a another home.” The same were the facts in part of the costs—as well as the whole the case of Blum v. Light, 81 Tex. 420, 16 costs, where the inability of the appellant S. W. 1090, except that the bill of sale in is questioned and contested by the appellee. that case is shown to have been a convey. Pendley v. Berry, supra.
ance to the wife of the horses and cattle as  Of course, under the rulings of the her separate property, by the terms of the Supreme Court, when a contest is filed, the conveyance. The evidence in this case shows "facts must show the total inability” men- that, a “short time” (but when is not shown) tioned in the statute, in order to preserve before the filing of the affidavit, the homethe right of appeal, or at least, if the rec- stead was sold, and considering the statute ord shows the ability to pay the costs or a with reference to exempting the proceeds of part thereof, the affidavit is overturned and the homestead for a period of six months the right is lost. And in order for the man- after the sale, and the testimony that the damus to lie against the opposite party, who wife signed the deed in consideration of the is an officer, “We must see that the act conveyance to her in order that she could which it is sought to compel him to perform see that the proceeds went into another is one that is imperatively required of him home, we are not disposed to disregard the by law to perform." Insurance Society v. court's findings. But as to the three head Love, 102 Tex. 278, 115 S. W. 26. In this of cattle, the two cows and a yearling heifer, matter the act sought by mandamus to com- which the record conclusively shows was pel respondent to perform is to send up the owned by them (presumptively as commutranscript in order that relator may perfect nity property) and not shown to have been his appeal, and if the facts do not show a the proceeds of the homestead, and uncontotal inability to pay or are suggestive of an tradicted that they were worth $105, with ability to pay the costs, or a part thereof, no testimony whatever that they were milch then it is not "imperatively required of him cows or that the grown cows had ever been to perform.” Chief Justice Rainey expressed milked and were dry, or were intended to be it rather succinctly as to this particular used as milch cows, we are unable to agree question, in the case of Trapp v. Frizzell, with the court's finding that they should 98 S. W. 947: “The Constitution gives the be eliminated in considering the relator's right to appeal, and the law has provided ability to pay the costs or any part thereof. the mode for so doing. When a party takes In the Pendley-Berry Case, supra, the disan appeal from a judgment against him, trict judge had found that the appellant had and makes affidavit of his inability to give $40 and was able to pay a part of the costs security, as required in article 1401, Rev. of the appeal, but disregarded it on the conSt. 1895, and it is then contested, he is test and sustained the affidavit, and the then required to make strict proof of his Supreme Court said: "The decision of the inability to pay the cost of any part there district judge that the appellant was entiof.' If he does this, then the jurisdiction of tled to appeal without paying or depositing the appellate court attaches, and the power the sum named is not conclusive. The statdoes not lie with the court or judge before ute says, it is true, that the judge bearing the whom such proof is made to deny the right contest shall 'determine the right of the parof appeal”—citing Pendley v. Berry, quoted ty to his appeal, but this means evidently by us, supra, and Murray v. Robuck, 89 S. that he shall determine the facts which are W. 782, decided by Justice Neill of the Fifth in issue before him on which the right to apdistrict. In the latter case all the property peal is made to depend. After ascertaining respondent had was a cow, a calf, a sow, and stating such facts, he cannot conclude the some pigs, a growing crop on 15 acres of appellate court by judging that the right rented premises and which the San Antonio to appeal does or does not exist." The court said, in sustaining the right of appeal trial court's finding of fact is just as defiand mandamus, "this property was all ex- cient, when in the face of the record, as a empt under the law from execution," and finding of law, and this record is conclusive that is where this case departs from that upon this appeal that the three head of catcase,
tle mentioned constitute community proper