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ceased to be a policeman de jure, and that, as to constitute him a policeman de jure, thereupon the liability of the city for his or entitle him to recover for services which salary as such de jure officer terminated. he never rendered. In that opinion, referAnd, under the facts of that case, as disclos- ring to Cabiness, the court did, indeed say: ed by said opinion, Albers having been paid "He was recognized under the appointment in full for all services rendered during said made, and his salary paid by appellant for three two years and afterwards down to date of months without objection, and without any his discharge, it was really immaterial, on his appointment so far as disclosed by the rec

question being raised concerning the legality of appeal, whether Albers, during that period, ord. Under these facts it seems clear that he behad been an officer de jure or an officer de came an officer de jure, and entitled to hold the facto; and, inasmuch as he had not been re- office to which he had been appointed for two

years, unless lawfully ousted." appointed after the expiration of his original term, it was likewise immaterial whether from its place in the context and considered

But that portion cannot fairly be wrenched that office had any legal existence since, in any event, after the expiration of that term, In considering the meaning and force of said

separately as a basis of conflict in decisions. he was therefore not an officer de jure, and consequently was not entitled to recover for excerpt, it must be remembered that the services not actually rendered.

court was then dealing with the third assignFrom a comparison of the opinion in the ment of error, which complained of the ac

tion of the trial court in sustaining special Albers Case with that in the Coultress Case, and although in each instance the number of exceptions to and striking out portions of

defendant's original answer, which set up policemen had not been fixed by charter or ordinance, and in each instance the suit was

the following defenses: (a) That the city by one claiming to be a policeman de jure council had never passed any ordinance or for salary for a period of time subsequent resolution making effective the charter powto his discharge (the Albers suit being also ers relating to the creation of a police defor salary covering a period of suspension partment or the appointment of policemen, embracing 15 days prior to such discharge, and that neither the term of office nor the but subsequent to expiration of his original duties of policemen had been prescribed, and two years' term of office), it seems too clear that policemen were subject to removal at for argument that between them there is no will and without notice; (b) that, pursuant statutory conflict upon any holding by the to said charter, the city council had adopted Court of Civil Appeals upon the general de- for its government rules which had been dismurrer.

regarded in the appointment of plaintiff to Second. Question 2 may be treated as in- said office; (c) that, in consideration of his cluding both counts of plaintiff's petition in appointment as policeman, plaintiff contractthe Coultress Case, the first as presenting ed with defendant that either the city marthe theory of a de jure status resting upon shal or the city council might discharge plainallegations of compliance with all require- tiff, at any time, with or without notice or ments of law, including charter and ordinanc cause. The actual viewpoint and conclusions es, coupled with regular appointment and of that court as to the merits of said pleas qualification and with service in office, and are more clearly shown as follows: the second as presenting the theory of a de of the alleged grounds of defense mentioned

“We are of the opinion, however, that neither jure status resting upon allegations of ap- constituted any sufficient reason for denying to pointment and qualification and service as appellee a recovery. Section 27 of appellant's policeman down to date of discharge, coupled charter conferred upon its city council the powwith subsequent recognition by the city, licemen, and prescribe their duties and powers

er and authority 'to appoint watchmen and pothrough its city council, of his status as a and compensation. This provision of the charpoliceman, even though it be held that a ter was self-executing and required no resolustrict compliance with law and charter provi- tion or ordinance of the city council to make it sions, including the establishment of the in the proceedings by which appellee was ap

effective. Nor do we think mere irregularities police force by the city council by an ordi- pointed, if any, can be taken advantage of by nance fixing its number, was lacking.

the city and urged as distinct grounds upon Upon the first branch of question 2 our the salary incident to said office. Besides, it

which to defeat his otherwise right to recover views have been sufficiently expressed above does not appear that his discharge was based in treating question No. 1, and a portion of upon any such ground. He qualified and enwhat we said there applies to the second tered upon the discharge of his duties. He was branch thereof. The second branch of that his salary paid by appellant for three months

recognized under the appointment made, and question rests, apparently, upon the idea that without objection, and without any question plaintiff's status was affected by action of being raised concerning the legality of his apthe city authorities recognizing and treating pointment, so far as disclosed by the record. him as a de jure officer. Applying it to the an officer de jure, and entitled to hold the of

Under these facts it seems clear that he became Cabiness Case, we are unable to find that fice to which he had been appointed for two plaintiff there contended, or that it was held, years, unless lawfully ousted"; citing cases. that, even though it should be decided that Undue stress should not be laid upon the the office of policeman had not been proper- statement that Cabiness was recognized unly created, or that his appointment was in der his appointment as a policeman, and reobjection or question concerning the legality, pointment thereto, which was at least subof his appointment. Evidently it was made stantially effectual although somewhat irin disposing of the city's contention (b) above, regular, the recited facts that he was recogunder the third assignment, which contention, nized and paid by the city as a policeman in effect, assailed Cabiness' status as a de would constitute him an officer de jure, and jure officer upon the ground that the irregu- entitle him to the emoluments of that office larities there urged rendered his election to during its term. the office of policeman invalid, even though it Plainly, we conclude, the legal effect of the should be held that the office had been duly above quoted portion of said opinion, treatcreated or recognized by the charter, that ing said third assignment and embracing said instrument being self-executing, and no or- first excerpt, is to hold, merely: (a) That the dinance being necessary to the existence of three defenses therein mentioned had not that office. And it was probably with that been abandoned by failure to replead them, thought in mind, as well as with reference to and were properly up for review, the city the duration of Cabiness' term as a de jure having seasonably made and duly brought officer, that the court cited City of Houston up its exceptions to the action of the trial v. Estes, 35 Tex. Civ. App. 99, 79 S. W. 848, court in sustaining special exceptions to said wherein Estes was held to have been an offi- defenses ; but (b) that none of the three pleas cer de jure despite certain irregularities in was meritorious. The citation of cases was the giving of a bond, concerning which com- such, we think, as to support our conclusion. plaint was not seasonably made. In other consequently, so far as we have discovered, words, it seems to us that the immediate pur- the decision in the Cabiness Case involves no pose of the court there was merely to apply holding whatever upon the point embraced to said plea (b), concerning irregularities in by the second branch of question 2; wherethe election or appointment of Cabiness, the fore it seems impossible for "conflict” to exist principle which, in that cited case, had been between that decision and that portion of applied to the qualification of Estes, that the opinion in the Coultress Case which we principle being that where the office exists have treated as involving that point. legally, such mere irregularities, when acqui- Nor does this second branch of question 2 esced in, will not reduce to the status of a seem to have been involved in the Albers merely de facto officer the incumbent who, Case, except in connection with the action of but for such irregularities, would be a de jure the city council upon Albers' appeal from officer.

the order discharging him, whereby that Furthermore, in considering the effect of bodythe language found in said first excerpt, it "determined, by a vote of 10 to 2, that plaintiff should be constantly borne in mind that it had been wrongfully discharged from the seryfollowed the holding upon the city's conten- ice of the city, and it was recommended that tion (a), above, to the effect that the charter paid in full for the time lost by him.”

he be reinstated in his former position and be provision relating to the appointment of policemen was self-executing, requiring no reso

In that connection it must be remembered lution or ordinance by the city council to that Albers' allegations, relating to his apmake it effective-a holding which, under pointment and confirmation, taking the oath the uncontradicted evidence, resulted in the of office, giving bond and approval thereof, further conclusions and holdings that “appel- referred, primarily, to his original term of lee was duly appointed or elected policeman office, which was held to be two years, and

on the 27th day of April, 1903, by its that upon the view that, under the charter city council and

qualified,” which and ordinances, there was no succession in holdings together, and without regard to the office of policeman pursuant to which he whether the city did or did not pay his sal- might continue in office until his successor ary for three months, constituted a reason- qualified, coupled with the finding of fact able and adequate predicate for the ultimate that he was never reappointed, it was held conclusion there announced by the court that, that after the expiration of his term of ofunder the facts of the case, Cabiness clear-fice he was no longer an officer de jure. ly

Upon the effect, if any, of the above-men"became an officer de jure, and entitled to hold tioned action of the city council concerning the office to which he had been appointed for Albers' discharge, no specific holding seems two years, unless lawfully ousted."

to have been made; but the plain purport of Certainly the words, "became an officer de the decision seems to be that such action by Jure,” would seem strangely inappropriate in the council, whether considered separately defining the status of the incumbent of an or in conjunction with the antecedent facts alleged office which had no legal existence, and circumstances of the case, including and the words, “the office to which he had his declaredly valid appointment, qualificabeen appointed,” would have been palpably tion, and service for two years, was insufinappropriate in that connection, and those ficient to make his status, after the expiraexpressions would hardly have been used by tion of that term, that of a de jure officer. that learned court had its purpose been to Under the opinion in the Albers Case there there declare and hold that, in the absence of is certainly no room to contend that therein

*

Thira. Coming, finally, to question 3, we Because, in our opinion, relator's claim of

ities, even when considered in connection | teriality was the only one relating to dis

, with the other facts of this case, constituted charge. him an officer de jure, after expiration of The appeal in the Cabiness Case involved the two years; hence, upon that feature, three, and only three, issues relating to there is no conflict between that decision and plaintiff's discharge: (a) Discharge pursuthe decision in the Coultress Case. On the ant to his said contract with the city therecontrary, and even upon relator's assump- for, which was held void as against public tion that Coultress' petition alleged, and that policy ; (b) discharge by the city marshal, the facts showed, the making by the city which the court found to have been without council, after date of his discharge, of spe- a hearing or trial, and held to have been cific appropriations for his salary, an as- without authority of law; (c) an incidental sumption directly in the face of the final question as to whether the city had notice findings of fact, the effect of the decision in that plaintiff had been discharged by its the Coultress Case was that, nevertheless, city marshal, upon which it was held that he was not thereby, nor in connection with the city had sufficient notice and adopted the other facts of that case, including his and ratified said act of discharge. Eviattempted appointment and qualification and dently none of those three questions, relating service, constituted an officer de jure; and to discharge, was involved in the Coultress that holding as to the legal effect of the Case; consequently there was no conflict facts and circumstances upon Coultress, sta- thereon. tus during the period of time covered by his We deem it proper to suggest that, in the claim for compensation was not in conflict. event of the filing of such actions in the fubut was in strict harmony, with the decision ture, the time of this court may be conserved upon the corresponding feature of the Albers by more definite and specific statements by Case.

relators, alleging conflict. , , , find in the Coultress appeal no holding on conflict is without merit, the writ of mandaany question involving the legality of plain- mus is denied. tiff's discharge common to that in either of the other two cases mentioned by relator; consequently there can be no conflict there | A. A. FIELDER LUMBER CO. y. GAMBLE. Question 3, as framed, involves, or as

(No. 7403.)

Dallas. sumes, a construction in the Coultress Case

(Court of Civil Appeals of Texas. of the legal effect of section 17 of the San

Oct. 16, 1915.) Antonio special city charter.

APPEAL AND ERROR Om781 – DETERMINATION Manifestly

OF Moot CASE. that question of construction was not involv- Where the controversy between the parties ed in the Cabiness Case, which arose under has been settled pending appeal, the appeal will the Paris charter, nor in the Albers Case, be dismissed, the question being moot. which arose under the Houston charter, Error: Cent. Dig. ss 63-80, 3122; Dec. Dig.

[Ed. Note.-For other cases, see Appeal and neither of which is shown to have contained Error;, Cent. Dig. $: 63-80, 3122; Dec. Dig.

Om781.] an identical or even a similar provision. And it seems that the opinion in the Coul- Appeal from District Court, Grayson Countress Case does not even attempt to construe ty; James P. Haven, Judge. said section 17; and, indeed, under the view Action between the A. A. Fielder Lumber which prevailed in that decision, and under Company and J. R. Gamble. From a judgthe holding there made, which, as we have ment for the latter, the former appeals. Apseen, was to the effect that Coultress never peal dismissed. became an officer de jure, the question of Webb & Webb, of Sherman, for appellant. whether his attempted discharge was legal or not became and was wholly immaterial in RAINEY, C. J. The subject-matter in conthat cause, just as the corresponding ques- troversy having been settled and determined tion was held to be immaterial in the Albers by the parties since this appeal was perfectCase, the court having there held, as was ed, there remains nothing but a moot quesheld in the Coultress Case, that plaintiff was tion for this court to decide; such being the not an officer de jure during the period of situation the court will not occupy its time time covered by his claim for compensation, by investigating the question raised for the the plaintiff in each instance having received mere purpose of determining who was right full pay for all services actually rendered. in the litigation. Indeed, in each of those cases, under the Where parties have settled their controverholdings made therein, respectively, any de- sies this court will not pass upon matters cision or holding therein as to the legality which have been settled by agreement. The or illegality of plaintiff's discharge would subject matter having ceased to exist, the have been dictum, upon which conflict under case will be dismissed, and it is so ordered. said article 1623 could not be predicated. Ansley v. State, 175 S. W. 470, decided by In the Albers Case, said holding of imma-' this court April 3, 1915.

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fourth, fifth, and eighth assignments are also SAN ANTONIO, U. & G. RY. co. et al. v. based on the evidence and must be overruled. YARI ROUGH. (No. 5503.)

[2] The seventh assignment of error assails (Court of Civil Appeals of Texas. San An- the verdict because it did not dispose of the tonio. Oct. 13, 1915.)

cross-action of appellants. The verdict must 1. APPEAL AND ERROR 569/ASSIGNMENTS be construed in the light of the charge which

OF ERROR-STATEMENT OF FACT-APPROVAL. instructed the jury that they should find for

Without a statement of facts approved by appellee, if they found he was not indebted to the trial judge, assignments of error cannot be appellants, or if the amount in which he was considered.

[Ed. Note.--For other cases, see Appeal and indebted was less than the amount in which Error, Cent. Dig. 88 2530-2545; Dec. Dig. Om appellants were indebted to him. That 569.]

charge removes all objections to the verdict 2. TRIAL 331–VERDICT-DISPOSITION OF and makes it certain. The jury must necesCROSS-ACTION.

In an action for conversion against a rail sarily have found that appellee was not inroad and another to recover the value of prop- debted to appellants, or that, if he was, they erty, with a cross-action setting up plaintiff's owed him $600 more than he owed them. indebtedness to defendants, a verdict for plain-Garrett v. Robinson, 93 Tex. 406, 55 S. W. tiff for $600, construed in the light of a charge 564; Bemus v. Donigan, 18 Tex. Civ. App. that the jury should find for plaintiff if he was not indebted to defendants or if his indebtedness 125, 43 S. W. 1052; Cameron v. Lubbock, 147 was less than the amount of their indebtedness S. W. 717. to him, removed all objections to the verdict on the ground of uncertainty and that it did not double recovery. Although the verdict found

[3] The judgment does not provide for a dispose of the cross-action.

Į Ed. Note. For other cases, see Trial, Cent. a joint liability against appellants, there was Dig. 8 783; Dec. Dig. 331.)

no error in the judgment decreeing a joint 3. JUDGMENT O 240 - VERDICT-JOINT AND and several liability. Kuykendall v. Coulter,

SEVERAL LIABILITY.

7 Tex. Civ. App. 399, 26 S. W. 748; Railway Where the verdict found a joint liability . Crump, 32 Tex. Civ. App. 222, 74 S. W. against defendants, there was no error in judgment decreeing a joint and several liability. 335.

[Ed. Note.-For other cases, see Judgment, The judgment is affirmed. Cent. Dig. 88 423-425; Dec. Dig. Om 240.]

Appeal from District Court, Bexar County ; W. F. Ezell, Judge.

OCCIDENT FIRE INS. CO. V. LINN. . Action by J. W. Yarbrough against the San

(No. 7406.) Antonio, Uvalde & Gulf Railway Company (Court of Civil Appeals of Texas. Dallas. and another, with cross-action by defendants.

Oct. 16, 1915.) Judgment for plaintiff, and defendants ap- 1. APPEAL AND ERROR On 770 REVIEW peal. Affirmed.

BRIEFS.

Under court rule 40 (142 S. W. xiv) an Williams & Hartman, of San Antonio, for appellant's brief may be accepted as a proper appellants. Don A. Bliss, of San Antonio, presentation of the case, without examination

of the record contained in the transcript, where for appellee.

appellee files no brief.

[Ed. Note.-For other cases, see Appeal and FLY, C. J. Appellee instituted this suit Error, Cent. Dig. 88 3104, 3106, 3107; Dec. to recover of the railway company and J. E.

Dig. 770.] Franklin the value of certain tools and im-2. INSURANCE Om669 - FIRE INSURANCE-ACplements, which constituted a railroad con

TIONS-EVIDENCE.

Where there was testimony by a secondtractor's outfit, which, it was alleged, had hand piano dealer that he had examined the been converted to their use by appellants. instrument insured for $400, and considered its The property was alleged to be worth the market value in the neighborhood from $150 sum of $2,700 and appellee also sought the referred to was before or after the fire, a re

to $200, and it did not appear whether the time recovery of $1,000 as exemplary damages. quested charge that, the market value of the The jury returned a verdict for $600, and instrument not having been shown, plaintiff judgment was accordingly so rendered.

could not recover, was properly denied; it being

as fair to assume that the testimony referred to [1] The first assignment of error assails the the condition of the instrument after the fire verdict on the ground that the value of the as before. property was not shown to be more than $600, [Ed. Note. For other cases, see Insurance, and that appellee was indebted to Franklin Cent. Dig. $8 1556, 1771-1784; Dec. Dig. Om in a sum equal to that amount. The state

669.] ment of facts filed in this case is not approved 3. INSURANCE 658–FIRE INSURANCE-AC

TIONS-EVIDENCE. by the trial judge, and consequently cannot

Testimony as to the condition of the insurbe considered by this court. In every in- ed property more than 872 months after the stance the statement of facts must be ap- fire is inadmissible in an action on a fire policy, proved by the trial judge. Rivers v. Cam without a showing that the condition was the bell, 51 Tex. Civ. App. 103, 111 S. W. 190.

same then as immediately after the fire.

[Ed. Note. For other cases, see Insurance, Without a statement of facts, the assignment Cent. Dig. $8 1689, 1690, 1694; Dec. Dig. Omni of error cannot be considered. The second, 1 658.]

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4. APPEAL AND ERROR Om 1067-TRIAL O gard appellant's brief, under rule 40 pre208-REFUSAL OF INSTRUCTIONS.

scribed by the Supreme Court (142 S. W. xiv), Where the court erroneously denied a motion to strike incompetent evidence, there as a proper presentation of the case without fusal of a charge to disregard such evidence was an examination of the record as contained in reversible error.

the transcript. [Ed. Note. For other cases, see Appeal and [2] The first assignment of error presented Error, Cent. Dig. $ 4229; Dec. Dig. Om 1067; in appellant's brief complains that the trial Trial, Cent. Dig. 8 504; Dec. Dig. Om 208.] 5. INSURANCE Cw658 - FIRE POLICIES - AC-court erred in refusing to give the following

– TIONS-EVIDENCE.

special charge requested by it: Where a piano was insured against fire, “The undisputed evidence shows that the pievidence in an action on the policy as to the ano covered by the policy sued on had a market cost of repairing its internal mechanism was value at Sherman, Tex., at the time the fire improperly received, where there was no show- occurred. Plaintiff's measure of damages thereing of that sort of damage.

fore is the difference between the market value [Ed. Note.-For other cases, see Insurance, of the piano immediately before the fire and Cent. Dig. & 1689, 1690, 1694 ; Dec. Dig. Om immediately after it was damaged. There being 658.]

no evidence as to what the market value of the

piano was immediately after the fire, you are Appeal from Grayson County Court; J. instructed that plaintiff has failed to prove the

amount of his damage. You will therefore find Q. Adamson, Judge.

a verdict for the defendant." Action by W. C. Linn against the Occident Fire Insurance Company, begun in justice charge was error:

The assignment asserts the refusal of this court, and appealed by defendant to county court. From a judgment there for plaintiff, the piano in controversy had a market value in

"Because the undisputed evidence showed that defendant appeals. Reversed and remanded. Sherman, Tex., at the time the fire occurred, Crane & Crane, of Dallas, for appellant.

and the plaintiff's measure of damages was the difference between the market value of same im

mediately before the fire and immediately after TALBOT, J. The appellee has filed no the fire, which is more fully set out in defendbrief in this case, and we copy from appel- ant's bill of exception No. 5." lant's brief the following statement of the

The evidence quoted in the statement unnature and result thereof: W. C. Linn, appel. der this assignment in support of the conlee, as plaintiff, instituted a suit against ap- tention that there was no testimony showing pellant, the Occidental Fire Insurance Com- what the market value of the piano was impany, of Albuquerque, N. M., in the justice mediately after the fire is as follows: J. F. court, precinct No. 1, Grayson county, Tex., Kohler testified: upon a policy of insurance in the sum of "I am in the piano business, tuning and sell$400, issued by appellant to his wife, Mrs. man. I buy and sell and trade pianos, and han

ing, and have been for about 30 years at SherW. C. Linn, covering an upright Ellington dle secondhand pianos. * * I examined the piano located in appellee's residence in Sher- piano in Mr. Linn's house. It was an Elling. man, Tex. He prayed for judgment for $165 Cincinnati. *** I considered the market

ton piano, made by the Baldwin Company, of damages alleged to have been caused by fire value of that piano in the neighborhood of $150 and water to the piano in a fire which oc- or $200. That is what would be a fair price curred on August 1, 1913, together with at- for it." torney's fees. Appellant admitted that the

The testimony of the witness Kohler, as policy was issued and that a fire occurred, thus quoted in appellant's brief, does not but denied that the damages sustained to the show at what time he regarded the market piano amounted to $165. Trial before a jury value of the piano in question to be $150 or in the justice's court resulted in judgment $200. It will be observel that he says he on April 21, 1914, for appellee in the sum of examined the piano in Mr. Linn's house, but $125, and attorney's fees, to which appellant it does not appear whether this was before excepted, and gave notice of appeal to the or after the fire which is charged to have county court of Grayson county, Tex. Appeal damaged the piano; neither does it appear bond was duly filed within the time allowed that in speaking of the market value of the by law. In the county court the pleadings of piano he had reference to its market value the parties were the same as in justice's before or after the fire. For aught the statecourt, plaintiff praying for $165 damages and ment shows, he may have had reference to attorney's fees, and defendant denying the the market value of the piano immediately amount of damage. The cause was tried be- after the fire which the plaintiff claims fore a jury, and resulted in a verdict for damaged it. It is certainly just as reasonable

. plaintiff in the sum of $134, and the court en-to conclude that he was speaking of the tered judgment accordingly. Motion and value of the piano after the fire as that he amended motion for a new trial were filed was speaking of it before the fire. Indeed, within the time required by law, which the inference is stronger, we think, that he were by the court in all things overruled, to was speaking of the value of the piano after which the defendant excepted, and gave no- the fire. In this attitude of the testimony tice of appeal to this court.

the appellant has not sustained its assign(1) Appellee having failed to file in this ment asserting that there was no evidence court any brief, we are authorized to re-l showing the market value of the piano im

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