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county court. The very fact, however, that the county court contracts for the services of an attorney, presupposes that the court has determined the necessity and propriety therefor; and, even if the prosecuting attorney may object to the contract, it is too late to do so after it has been entered into. The prosecuting attorney might, like any other citizen, appeal from the order of the county court entering into such a contract; but he cannot defeat the contract or abrogate it merely by manifesting his disapproval. Again it is said by the two judges, whose views I am now discussing, that the evidence is sufficient to warrant the conclusion that appellant was acting for the county judge personally, and not for the county court. Where is that evidence found? The contract is evidenced by an order of the county court which was duly entered of record, and pursuant to that contract appellant performed the services contemplated in the employment. There is no evidence whatever that Judge Harp personally employed appellant to do anything at all, and there is no suggestion anywhere in the record of any fraud or collusion between the two. Judge Harp was very earnestly in favor of building a new courthouse. Whether he was right or wrong about that, as a matter of policy or propriety, it is plain that what he did was openly done and
was done as a public official representing the county, and not as an individual. As an individual he made no contract with appellant, but acting for the county he made a contract in the most solemn form. I cannot see that the issues of a political campaign, which resulted in Judge Harp's defeat for re-election as a county judge, have anything whatever to do with this case. It might be different if there was any charge here of fraud and collusion between Judge Harp and appellant to defraud the county by making a contract for the latter to perform services for the county judge as an individual and impose the payment upon the county. But such is not the state of this case. The most that can be said of it is that Judge Harp made a mistake as a matter of policy in pushing the movement to build a new courthouse.
It is treating too lightly the solemn contract of the parties to set aside the appellant's contract with the county on any such grounds as that which has been mentioned as sustaining the decision of the circuit court. I am of the opinion, therefore, that the undisputed evidence in this case shows that appellant's contract with the county court was valid, and that he performed the services and is entitled to the compensation specified in the contract. Mr. Justice WOOD agrees with me in this concluS1011.
END OF CASES IN WOL. 179
THIS IS A KEY=NUMBER INDEX
It Supplements the Decennial Digest, the Key-Number Series and Prior Reporter Volume Index=Digests
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
held necessary.—Wichita Valley Ry. Co. v.
Somerville, 179 S. W. 671.
(A) Extent of Possession.
Q: 103 (Tex.Civ.App.) Wife having adverse possession after husband's death of lots part of which was community property and part belonging to a stranger held to acquire the whole interest therein, and not merely an undivided half interest.—Wichita Valley Ry. Co. v. Somerville, 179 S. W. 671.
III. PLEADING, EVIDENCE, TRIAL, AND REVIEW.
<>112 (Tex.Civ.App.) In trespass to try title against mother and son, both living on the land, mother held to have burden of showing her possession under a claim of exclusive ownership.#hita Valley Ry. Co. v. Somerville, 179 S. W. Q: I 15 (Tex.Civ.App.) Facts held to raise issue as to son's possession and as to mixed or joint possession or Occupancy by mother and son, and not to entitle mother to peremptory instruction under the ten-year statute.—Wichita Valley Ry. Co. v. Somerville, 179 S. W. 671. C: 116 (Tex.Civ.App.) In trespass to try title, refusal of instruction as to lease from plaintiff by son and effect as against mother claiming that she and not the son was in possession held not error.—Wichita Valley Ry. Co. V. Somerville, 179 S. W. 671.
C:28 (Tex.Civ.App.) In an action under Rev St. 1911, arts. 6601, 6602, against a railroad company for damages caused by its allowing Johnson grass to go to seed on its right of way, the question of permanent damages held properly submitted; there being testimony that land infested with Johnson grass could not be cleared.—Missouri, K. & T. Ry. Co. of Texas v. Forrest, 179 S. W. 273. In an action for damages for allowing Johnson grass to go to seed on a railroad right of way, where the jury were charged that plaintiff was bound to show the damages caused by defendant's act, defendant could not complain of
submission of question of damages, though injury might have come from other sources.—Id.
AIDER BY WERDICT.
See Indictment and Information,
See Criminal Law, @:775.
See Divorce, Ç:236-241.
ALTERATION OF INSTRUMENTS.
See Bills and Notes, 3:378; Forgery; Indict
ment and Information, ©->34. C:20 (Tex.Civ.App.) Change in personality, number, or relation of parties to instrument, without consent of the opposite party, held to avoid it, even in the hands of an innocent purchaser.—Bolt v. State Savings Bank of Manchester, Iowa, 179 S. W. 1119. C:25 (Tex.Civ.App.) That the makers consented to or ratified alteration of note, or that it was not altered by a party to the suit, held matters to be pleaded by plaintiff suing on the note. –Bolt v. State Savings Bank of Manchester, Iowa, 179 S. W. 1119.
See Carriers, C-205–230; Game; Railroads, 6:411–447.
&=26 (Ky.) Under Ky. St. § 2500, lessor of grazing lands had no lien on mares belonging to a third person covering a charge for grazing them thereon under a contract with the lessee during the term of the lease.—Patchen-Wilkes Stock Farm Co. v. Walton, 179 S.W. 823.
<>50 (Tex.Civ.App.) Where cattle escaped from the owner's inclosure through no fault of his, he was not guilty of a violation of the stock law, prohibiting the running at large of animals.–Ft. Worth & D. C. Ry. Co. v. Decatur Cotton Seed Oil Co., 179 S. W. 1104.
See Pleading, 6:129.
APPEAL AND ERROR.
See Affidavits, @:14; Courts, 3:223–247.
For review of rulings in particular actions.or proceedings, see also the various specific topics.
I. NATURE AND FORM OF REMIEDY.
<=2 (Ky.) The law in force at the time an appeal is granted controls the right.-Gough v. Illinois Cent. R. Co., 179 S. W. 449.
III. DECISIONS REVIEWABLE.
(C) Amount or Value in Controversy.
©=45 (Ky.) Under Ky. St. § 950, subsecs. 1, 3, an appeal will be dismissed, where the amount in controversy was less than $500, and it did
not appear that there was prejudicial error, or that the construction or validity of a statute or of the Constitution was in issue.—Gough V. Illinois Cent. R. Co., 179 S. W. 449.
(D) Finality of Determination.
&=76 (Tex.Civ.App.) Where a judgment did not dispose of certain interveners, nor of the subject-matter sued for by them, and there was no order of dismissal as to them, the judgment would not support an appeal.-Moore V. Toyah Valley Irr. Co., 179 S. W. 550 C:79 (Tex.Civ.App.) In an action having several parties plaintiff and defendant, a judgment not disposing of issues between some parties is not final, and not appealable.—J. I. Case Threshing Mach. Co. v. Lipper, 179 S.W. 701. Q->79 (Tex.Civ.App.) Judgment in suit by corporation to recover title and possession of goods in which interveners claimed, which neither directly or by implication adjudicated plaintiff's claim, held not a final judgment and not appeal£nian Brown Co. v. Escobar, 179 S. In suit to recover title and possession of goods, interests being claimed by defendants and interveners as well as plaintiff, judgment failing to adjudicate on plaintiff's claim was not by implication an appealable final determination because the verdict determined such claim.—Id.
Q:280 (Tex.Civ.App.) In an action on a note, a judgment not disposing of indorser's prayer for judgment over against his codefendant held not a final appealable judgment.—Houston £ Co. v. Peden Iron & Steel Co., 179 S.
(E) Nature, Scope, and Effect of Decision.
©->101 (Tex.Civ.App.) Where a receiver was appointed and subsequently on an amended petition the order of appointment was vacated, but was followed by a later order of reappointment, an appeal from the order lies, under Vernon’s Sayles' Ann. Civ. St. 1914, art. 2079.— Hart-Parr Co. v. Alvin-Japanese Nursery Co., 179 S. W. 697.
V, IPRESENTATION AND RESERVATION IN LOVVER COURT OF GROUNDS OF REVIEW.
(A) Issues and Questions in Lovver Court.
&= 171 (Ky.) Where the intervening defendant after overruling of its demurrer filed a rejoinder to the reply which set up a wholly new cause of action against it, the case on appeal will be disposed of on the theory that the reply took the place of an amended petition.—Hodge Tobacco Co. v. Sexton, 179 S. W. 36.
Q: 172 (Ky). Under petition in minor servant's action for injuries, held, that he could not raise the issue for the first time on appeal that he was employed in violation of Ky. St. § 331a, subsec. 9, forbidding employment of one under 16 years in work dangerous to life.—Mason & Hurst Co. v. Feltner, 179 S. W. 222.
C: 173 (Ky.) Where defendants failed to raise the question below that the plaintiff union was an unlawful combination in restraint of trade, and could not recover in the action, it was too late to raise it on appeal.—Pete Sheeran, Bro. & Co. v. Tucker, 179 S. W. 426.
Q: 173 (Tex.Civ.App.) The insurer, who did not set up in the trial court a provision of the policy that it assumed no obligation unless insured was in good health at its delivery, could not urge the defense for the first time in the appellate court.—American Nat. Ins. Co. v. Anderson, 179 S. W. 66.
Q: 179 (Ky.) In action to enforce judgment, commissioner's report and defendant’s exception thereto held to sufficiently raise the question as to the number of jacks sold by the judgment
&:209 (Mo..App.) Where a party joins in submitting the case to the jury, he cannot assign as error on appeal that on the undisputed facts the adverse party is not entitled to judgment. —McCracken v. Schuster, 179 S.W. 757. 6:216 (Ky.) The contention on appeal that an additional instruction should have been given in the terms indicated by appellants’ brief would not be considered, where no such instruction was offered or asked by appellants.Ramey v. Ironton Lumber Co., 179 S. W. 207. <=216 (Tex.) Where correct charge was given on contributory negligence in personal injury suit, question of its direct application to the facts will not be determined, in absence of request by defendant for more elaborate chargeWells Fargo & Co. v. Benjamin, 179 S. W. 513. <>242 (Tex.Civ.App.) When the court refuses to rule on a general demurrer which is well taken, the case will be reversed for fundamental error.—City of Brownsville v. Tumlinson, 179 S. W. 1107.
&=272 (Tex.Civ.App.) Assignments of error complaining of the court's refusal to submit special charges will not be considered, where appellant did not except to such refusal in #" time.—Gillespie v. Williams, 179 S. W.
(D) Motions for New Trial.
<>282 (Tex.) Under Rev. St., 1911, art. 1991 it is not a prerequisite to perfecting an appeal that the appealing party shall move for new trial, where the trial below is without a jury. —Craver v. Greer, 179 S.W. 862. In spite of rule 24 of the Supreme Court (142 S. W. xii), it is not a prerequisite to the perfecting of an appeal in other than jury cases that a motion for new trial be made by the appealing party.—Id. Rule 24 of the Supreme Court (142 S. W. xii) must be construed together with other court rules, including 71a (145 S. W. vii), and when so construed does not require a motion for a new trial in cases tried to the court.—Id. The right to have an appeal considered, in cases tried to the court, without filing a notice for new trial does not depend upon filing by d'rial judge of his conclusions of fact or law. Q:282 (Tex.Civ.App.) Under Vernon's Sayles’ Ann. Civ. St. 1914, arts. 1612, 1991, and district court rule 71a (145 S. W. vii), motion for new trial held unnecessary in case tried without a jury, where conclusions of fact and law are filed and exception taken.—Wilkerson v. Stasney & Holub, 179 S. W. 669. 6:289 (Ark.) An assignment of error complaining that the court refused to allow defendant to introduce evidence to prove a defense
Q:493 (Tex. Civ. App.) A default judgment against a defendant will be reversed where the record fails to show service of citation other than by the recital thereof in the judgment.— Bonner Oil Co. v. Gaines, 179 S. W. 686. 3:499 (Tex.Civ.App.) A bill of exceptions to the refusal of the court to submit the case on special issues should show at what point in the trial the request was made.—Banks v. Mixon, 179 S. W. 690. <>499 (Tex.Civ.App.) Bills of exceptions to refusal of requested special charges must disclose that such charges were submitted to opposing counsel for examination and objection, as required by Rev. St. 1911, art. 1973, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1973).—J. B. Farthing Lumber Co. v. Illig, 179 S. W. 1092.
&:499 (Tex.Civ.App.) Where bills of exceptions do not disclose the objections made to evidence excluded, the ruling cannot be considered on appeal.—Hall V. Ray, 179 S. W. 1135.
3:2500 (Ry.) Where the bill of exceptions fails to show the order complained of limiting the number of witnesses, the question cannot be £wed-pitchman v. Bowles, 179 S. W.
C>501 (Mo..App.) Where bill of exceptions fails to show exception to overruling of motion for new trial, no errors are presented, except those appearing on face of record proper.—National Novelty Import Co. v. Diekman, 179 S.W. 724.
<>515 (Ky.) In an equity cause, where a review of the testimony is desired, it must be incorporated in the record by proper bill of ex#-Graves Committee v. Lyons, 179 S.
(C) Necessity of Bill of Exceptions, Case, or Statement of Facts. C=548 (Tex.Civ.App.) Assignments of error attacking a verbal agreement for want of consideration, and answer of jury to special issues as against the evidence, and submission of special issues as irrelevant cannot be considered
in absence of statement of facts.—Allen v. Reed, 179 S. W. 544. Error in admission of evidence held not reviewable, in absence of bill of exceptions or statement of facts disclosing the evidence.—Id. Assignment of error asserting right of plaintiff to judgment upon the evidence cannot be considered in the absence of a statement of facts.—Id. &=553 (Ky.) Under Civ. Code . Prac. § 337, subd. 2, a stenographer’s transcript of the evidence not approved by the court and made part of the record during the term or the time allowed cannot be treated as a bill of exceptions. —Graves' Committee v. Lyons, 179 S. W. 413.
(D) Contents, Malzing, and Settlement of Case or Statement of Facts.
C:564 (Tex.Civ.App.) A purported statement of facts, filed in the Court of Civil Appeals, which statement had never been filed below within 90 days of perfecting the appeal, as required, could not be considered.—International & G. N. Ry. Co. v. Reek, 179 S. W. 699. Statement of facts filed late in the trial court will be considered when the late filing is properly excused in the motion for rehearing by showing difficulty of counsel in getting the statement prepared.—Id. Filing of statement of facts in Court of Civil Appeals held not to preclude such court from refusing to consider such statement b cause it was not filed below.—Id. -Agreement by appellee's counsel that the statement of facts might be filed out of time could not relieve appellant of the duty and necessity of filing such statement in the trial court.—Id. Q:569 (Tex.Civ.App.) Without a statement of facts approved by the trial judge, assignments of error cannot be considered.—San Antonio, U. & G. Ry. Co. v. Yarbrough, 179 S. W. 523. &:569 (Tex.Civ.App.) Under the statute, appellant, without consent of appellee, may without the reporter’s transcript prepare a statement of facts on appeal, and have it approved by the judge.—J. B. Farthing Lumber Co. v. Illig, 179 S. W. 1092. <>569 (Tex.Civ.App.) Bills of exceptions taken to the exclusion of evidence could not be considered on appeal, where they were not signW '' presiding judge.—Hall v. Ray, 179 S.
C>578 (Tex.Civ.App.) A supplemental statement of facts held not proper matter for consideration in addition to the statement of facts filed and approved in time.—Texas Fidelity & Bonding Co. v. Brown, 179 S.W. 1125.
(E) Abstracts of Record.
C>590 (Mo..App.) Request for leave to amend original abstract would be denied where it did not come until after appellees had attacked the original abstract, and no reason was given for appellant's failure to present a sufficient abstract in the first instance.—Fleming v. Meals, 179 S. W. 743 Leave to amend an abstract of the record cannot be inferred from the mere granting of permission to file a supplemental abstract, subject to further decision of the question whether an amendment should be allowed.—Id.
(G) Authentication and Certification.
<=616 (Ky.) Instructions which the clerk had copied into the record held not so identified that they could be considered.—Cotton Seed Products Co. v. Bondurant, 179 S. W. 603.
(H) Transmission, Filing, Printing, and Service of Copies. 3:627 (Mo..App.) Under Rev. St. 1909, §§ 2047:2049, and Čourts of Appeals Rules 15, 18 (169 S. W. xxi, xxii), the court may not af. firm the judgment for failure of appellant to serve and file abstracts of record in time, but