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the petition of the San Antonio & Aransas, for the water supply, or for the right of way, Pass Railroad Company in said cause, for the or for new right of way for change or relocation reason that the petition of said railroad com- of roadbed to shorten the line, or any part pany showed upon its face that it did not de- thereof or to reduce its grades, or any of them, sire to relocate its main line track, but to aban- which is hereby authorized and permitted, or don the same between the points mentioned in for any other lawful purpose connected with said petition, and to use instead between said or necessary to the building, operating, or points the railways of the Houston & Texas running its road, such corporation may Central Railroad Company and of the Galves- quire such property in the manner provided in ton, Harrisburg & San Antonio Railway Com this chapter; provided, that the limitation in pany, whereas the law of Texas prohibits the width prescribed in article 6484, shall not apSan Antonio & Aransas Pass Railroad Com- ply to real estate, or any interest therein, repany from abandoning_such portion of its main quired for the purposes herein mentioned, other line track. Second. Because the petition of than right of way, and that real estate, or any the San Antonio & Aransas Pass Railway interest therein, to be acquired for such other Company, together with all the facts and cir- purposes or any of them need not adjoin or abut cumstances introduced in evidence, showed on the right of way; provided, further that conclusively that such abandonment of that no change of the line through any city or town, portion of its main line tracks as it sought or which will result in the abandonment of any permission to abandon, and a relocation of its station or depot, shall be made, except upon lines, if same amounted to a relocation of its written order of the Railroad Commission of lines, which this plaintiff denies, did not in fact Texas, authorizing such change; and provided, shorten its line, but, on the other hand, length- further, that no railroad corporation shall have ened it by several miles, and did not in fact the right under this act to condemn any land reduce its grades or any of them. This plain- for the purposes mentioned in this article situtiff says that said order of the Railroad Com-ated more than two miles from the right of way mission upon said petition is without authority of such railroad corporation."

law, the and that this plaintiff is a party at interest for Pretermitting a discussion of the contenthe reasons hereinabove stated.”

tion urged by appellant to the effect that the The court sustained a general demurrer to amendments to this statute, which were appellants petition, and judgment was en originally passed in 1876, were unconstitutered against it in accordance therewith, tional, in that they did not comply with secfrom which it prosecutes this appeal.

tion 35, article 3, thereof, requiring that no

bill shall contain more than one subject, Opinion.

which shall be expressed in its title, still we

think that it was the intent of the LegislaIf the commission was authorized to make ture, as clearly expressed in said act, to limthe order complained of, or if appellant had it the railroads' right of relocation to the no such interest in the subject-matter in con- two purposes mentioned in the statute, to the making thereof, then, in either event, the wit, to shorten the line, or to reduce the

grades. ruling is correct, and the case should be af- the petition in this case that neither of such

It appears from the averments of firmed. But it is strenuously insisted on

results would follow, but, on the contrary the part of appellant, first, that the appellee such change would lengthen its line and inhad no right to enter the order granting the

crease the grades; and these averments are railway company the right to remove its to be taken as true in passing upon the detrack and enter the city over the tracks of to be taken as true in passing upon the de

murrer. the other railways mentioned; and, second,

The expression "or for any other lawful that appellant had such an interest in the purpose” is not a part of any of the amendmatter in controversy as would authorize itments to such statute, but was contained in to resist the enforcement of such order. So

the original act as passed in 1876 (see page that it becomes necessary for us to take up, 146, Session Acts of 1876; page 982, vol. 8, discuss, and determine both contentions of Gammel's Laws of Texas, $ 21), which was appellant.

a condemnation act limited to the purposes [1,2] The rule seems to be well settled, therein mentioned, and therefore could not not only in Texas, but elsewhere, that a rail. be construed, as appellee contends, to grant way company, after having once located, es- such right of relocation, notwithstanding the tablished, and operated its line of railway, fact that it might lengthen the line or inhas no right to abandon and change its lo

crease the grades; such expression, therecation, unless specially authorized so to do fore, must be limited to the purposes menby legislative enactment. See Sugarland Ry. tioned in the original act, and cannot be Co. v. State, 163 S. W. 1047, and cases there tioned in the original act, and cannot be v,

construed to extend to the purposes mencited. The appellee insists that it was spe- tioned in the amendments, or to any other cially authorized to pass the order complained of under article 6504, Vernon's purpose. In addition, we also hold that this Sayles' Revised Civil Statutes of Texas, statute did not authorize the commission to

make the order in question, because there which reads as follows:

“If any railroad corporation shall at any was no change or relocation of the roadbed time be unable to agree with the owner for the contemplated thereby nor granted therein, purchase of any real estate, or the material but only the right to enter the city of Housthereon, required for the purposes of its in-ton over the tracks of other railways, for corporation or the transaction of its business for its depots, station buildings, machine and which no authority is contained in the statrepair shops, for the construction of reservoirs / ute. This being true, we think the right to make the change is forbidden by article Appeal from District Court, Dallas Coun6550, vol. 4, Vernon's Sayles' Civil Statutes, ty; W. F. Whitehurst, Judge. and that the case is ruled in this respect by Habeas corpus by W. B. Slaughter and the case of Sugarland Ry. Co. v. State, su- wife against C. E. Oakes and others. From pra.

judgment for defendants, plaintiffs appeal. [3] We think the second question must al. Affirmed. so be resolved in favor of appellant. Article

John W. Pope, of Dallas, for appellants. 6677f, vol. 4, Vernon's Sayles' Civil Statutes, Spence, Haven & Smithdeal, of Dallas, and referring to orders made by the Railroad Reeder & Reeder and J. B. Dooley, all of Commission, reads:

Amarillo, for appellees. If any such person, association or corporation or other party at interest (italics ours)

TALBOT, J. This suit was instituted by be dissatisfied with any decision, rate, charge, toll, rule, order, act or regulation adopted by Mr. and Mrs. W. B. Slaughter, husband and the commission, such dissatisfied person, associ- wife, in the district court of Dallas county, ation, corporation, or party may file a petition Tex., against Mr. and Mrs. C. E. Oakes, hussetting forth the particular cause or causes of objection to such decision, rate, charge, toll, band and wife, and Mrs. Eloise Slaughter, in rule, order, actor regulation, or to either or which the plaintiffs seek by writ of habeas all of them, in a court of competent jurisdiction corpus to recover possession of Dorothy Coin Travis county, Texas, against such com-rine Slaughter, a girl about 11 years of mission as defendant," etc.

age. The plaintiffs are the paternal grandThe petition in this case discloses that parents, the defendants, Mr. and Mrs. Oakes, appellant was the owner of a lumber busi- are the maternal grandparents, and the deness that would be materially affected if the fendant, Mrs. Eloise Slaughter, is the mothorder of the commission should go into ef- er of the child. The plaintiffs resided in fect. He was therefore a party at interest, Dallas county, Tex., and the defendants, who and it is made to appear from the averments had the custody of the child when the suit of the petition that he was dissatisfied with was instituted, resided in Potter county, Tex. the order made herein, which gave him, we The petition, among other things, alleged that think, the right to have the same reviewed, Coney Slaughter, the father of the child, did as he is here undertaking to do. While not not reside in the state of Texas, and that questioning the rule announced in the case his whereabouts were unknown to the plainof M., K. & T. Ry. Co. v. Colburn, 90 Tex. tiffs; that when the child, Dorothy Corine 230, 38 S. W. 153, we think it is not applica- Slaughter, was only 312 months of age, it was ble here, but that the plain terms of the stai- given and turned over to plaintiffs by both ute justify the course pursued on the part of its father and mother; that plaintiffs then appellant.

took possession of Dorothy and carried her Believing that the court erred in sustain to their home; that from the time she was ing the demurrer, its judgment is reversed, turned over to plaintiffs they, at the speand the cause remanded.

cial instance and request of her parents, had Reversed and remanded.

actual and exclusive control, custody, maintenance, and rearing of Dorothy until on or about January 4, 1916; that on or about that date, while the said child was in the lawful

custody of plaintiffs in the city and county of SLAUGHTER et ux. v. OAKES et al.

Dallas, in the state of Texas, and whilst at(No. 7936.)

tending school, “it was fraudulently seized, (Court of Civil Appeals of Texas. Dallas. taken possession of, and surreptitiously and April 20, 1918. Rehearing Denied May 18, 1918.)

clandestinely conveyed and spirited away

from the lawful custody and possession of the 1. VENUE Om31-HABEAS CORPUS-FRAUD AS relators and out of the state of Texas, and BASIS OF ACTION.

into the city of Ardmore, state of Oklahoma," Habeas corpus to recover possession of petitioners' grandchild, of which petitioners al- by its mother, the said Mrs. Eloise Slaughter, lege they were wrongfully deprived by fraud- and its said maternal grandmother, Mrs. C. ulent representations to the grandchild, induc-E. Oakes; that this seizure and taking away ing her to leave

the state, is not a suit in which of Dorothy was the result of a conspirathe fraud alleged is the gist of the action, within the seventh exception of Vernon's Sayles' cy entered into by and between her mothAnn. Ciy. St. 1914, art. 1830, as to venue, so er, Mrs. Eloise Slaughter, and her materas to permit suit in a county other than that nal grandmother, Mrs. C. E. Oakes; that of defendant's residence.

in furtherance and consummation of said 2. APPEAL AND ERROR 1040(13) WRONG GROUND OF DECISION.

conspiracy said defendants came to the city Where suit is brought in wrong county, of Dallas, Tex., and without the knowloverruling plaintiff's exceptions to pleas of priv-edge of plaintiffs went to the school where ilege, even if the pleas are defective in fail- Dorothy was a student, and “fraudulenting to allege that fraud was charged in the ly and falsely” represented to her that petition for the fraudulent purpose of conferring jurisdiction, is not ground for reversal; the her sister was ill in the state of Oklaproper result having been reached.

homa and that it was necessary to carry

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

her to the bedside of her sick sister in all, charge of fraud .and conspiracy averred in possible haste, and that Dorothy, without appellants' petition was so averred for the knowing that such representations

representations were fraudulent purpose of conferring jurisdiction false, and in obedience to the command of on the court in the county where the suit was her mother, went with her, and was thence brought. rapidly carried out of Dallas county, Tex., The second assignment is to the effect that and into the state of Oklahoma. The peti- for the same reason the trial court erred in tion further alleges that shortly after reach- sustaining said pleas of privilege. The proping Oklahoma Dorothy's mother left her in osition advanced under these two assignthe custody of her maternal grandmother, ments is as follows: Mrs. Oakes, and that both of them have re

"Where a petition contains fraudulent allefused to redeliver the custody of Dorothy to gations of fact which, if true, would bring the plaintiffs; that the plaintiff Mrs. W. B. case under one of the exceptions of the statSlaughter filed suit in the district court of out of the county of his residence, then the deCarter county, Okl., in which all of the de- fendant must plead in limine to the jurisdiction, fendants herein were made parties, to recov- setting forth the true facts of the case, and er possession of the said child, and that final allege that the allegation that the fraud was

perpetrated in the county where the suit was judgment was rendered in said suit, award- brought was inserted in the petition for the ing the custody of the child to plaintiff Mrs. fraudulent purpose of conferring jurisdiction, W. B. Slaughter, but that notwithstanding and a plea of privilege, not containing such a said judgment said defendants, Mrs. Eloise charge, is insufficient.” Slaughter and Mr. and Mrs. C. E. Oakes, are In support of this proposition appellants yet unlawfully withholding the possession of cite the cases of Watson v. Baker, 67 Tex. said child from plaintiffs, and refuse to re- 48,2 S. W. 375, Sanders v. Dunn, 158 S. turn her to plaintiffs. It is further alleged W. 1041, and Pearce v. Wallis, Landis & Co., that the defendants "are temporarily located 124 S. W. 496. in the city of Amarillo, Potter county, Tex., Watson v. Baker was a suit by Watson to and are living in the same house together, rescind a parol contract alleged to have been and by concert of action are unlawfully hold-induced by Baker's fraudulent representaing the custody of the said child in their tions made in the county where the suit was possession." On the 5th day of February, brought, and the rules of law which govern 1917, the appellees, Mrs. C. E. Oakes, Mrs. in cases where a defendant is sued in a Eloise Slaughter, and C. E. Oakes, filed their county other than that of his residence are pleas of privilege in this cause, alleging that clearly stated. Baker pleaded to the juristhey and each of them resided at the date of diction of the court on the ground only that the institution of this suit in the county of he was sued out of the county of his resiPotter, state of Texas; and the appellees dence, which Watson had alleged was FrankMrs. C. E. Oakes and Mrs. Eloise Slaughter, lin county, Tex. No action was taken on in addition to their allegation that they and the plea to the jurisdiction of the court, but each of them resided in the county of Pot after the trial on the merits, the court dister, Tex., denied specifically the conspiracy missed the case for want of jurisdiction, the and fraud as charged in the petition or appli- statute not then authorizing a change of cation of the appellants for writ of habeas venue to the county of the defendant's resi. corpus, and prayed for the custody of the dence. In reviewing this action of the trial said minor child. Whereupon the appellants court the Supreme Court, after stating that filed their replication to the said pleas of whenever it becomes apparent to a court, at privilege, excepting to the legal sufficiency any stage in the progress of a cause, that it thereof. Upon the pleadings so made up, has no authority under the law to adjudicate and upon the issues presented by them, the the issues presented, it becomes its duty to court, on the 5th day of February, 1917, dismiss it, held that the right of a defendant heard and considered the replication of the to plead to the jurisdiction of the court, appellants, and overruled the same, and then when sued out of the county of his residence, heard and considered the said pleas of priv- was a personal privilege, which, if not exerilege of the appellees, and, after hearing the cised at the proper time and in a proper evidence, such as was introduced as shown manner, did not take away the authority of by the statement of facts in this cause, and the court to hear and determine the case after hearing the argument of counsel, sus- made against him; that jurisdiction as to tained the said pleas of privilege, and ordered the subject-matter must be determined in the the said cause transferred to the district court first instance by the petition, and where its of Potter county, Tex., to all of which rulings allegations show a case within the power of and orders of the court appellants excepted, the court to decide, the suit will be enterand gave notice of appeal.

tained, unless it subsequently appears that [1] The appellants present three assign- the jurisdictional facts have been frauduments of error. The first is, in substance, lently alleged for the sole purpose of conferthat the district court erred in overruling the ring the jurisdiction; but that, when the eviexception of appellants to the pleas of privi- dence shows clearly that the court has no lege of the appellees on the specific ground power to determine the real case developed, fraudulently inserted, the court will dismiss curs to us that the facts of that case preof its own motion. The court, however, fur- sented stronger reasons for holding that the ther held that if the evidence merely shows case came under the seventh exception of arthat the court has no jurisdiction over the ticle 1830 of the statute than do the facts person of the defendant, the rule stated is of the case at bar. There the alleged fraud not applicable; that when the defendant is was perpetrated and operated directly upon sued out of the county of his residence, and the father of the child, and the existence of the plaintiff fraudulently alleges facts which the alleged facts constituting the fraud was would bring the case under one of the ex-shown. Here no representation is charged ceptions to the general rule laid down in the to have been made by either of the appellees statute, he must plead in limine to the juris- to either of the appellants for the purpose diction of the court, and must in his plea of obtaining possession of the child, Dorothy set forth the true facts of the case and al- Corine Slaughter. The charge, in substance, lege the fraudulent purpose of the petition. is that in pursuance of a conspiracy the Manifestly, Watson v. Baker, which is cited mother and maternal grandmother of the and followed in Sanders v. Dunn, supra, a child came to the city of Dallas, and, withsuit similar in its facts, is authority for the out apprising the appellants of the presence proposition that in a suit in which the fraud or design surreptitiously went to the school alleged is the gist of and constitutes the where the child was a student and took her plaintiffs' cause of action, the defendant in. away. The substance of the allegations of his plea of privilege to be sued in the county false and fraudulent representations are that of his residence “must set forth the true the mother stated to Dorothy, when she facts of the case and allege the fraudulent found her, "that her sister was ill in the purpose of the petition." But a habeas state of Oklahoma, and that it was necescorpus proceeding to recover the possession sary to carry her to the bedside of the said of a child is a civil suit, and, like any other sick sister in all possible haste.” The testisuch action, the proper venue is ordinarily mony offered in support of these allegations, the county of the defendant's residence; and, so far as the record shows, is that of little where fraud is alleged to bring the case un- Dorothy. She testified that her mother told der the seventh exception of article 1830, her "that Glady's blue veins were still showVernon's Sayles' Civil Statute, the fraud ing, and she was going to take her to the must be the gist or basis of the action. So doctor, and she wanted me to come along that if the conduct of Mrs. Eloise Slaughter with her.” She further testified: in regaining possession of her child under “Gladys is my little sister. I then went on the circumstances of this case could be re- over to the school, where I talked with Mrs. garded as fraudulent within the meaning of Morgan, the teacher, and then I went on over

to the house, and my mother took me from my our statute, such fraud is not the gist or ba- home. My grandmother, Mrs. W. B. Slaughter, sis of appellant's action. Sheffield v. Rou- was not there at the time.” sey, 153 S. W. 653. As was similarly said She further said: in the case here cited, their cause of action "I did go and see my sister. She was sickrests upon the fact that they probably have her veins were showing. I saw my sister at been unlawfully deprived of the possession the Interurban Station, and also saw my grand

mother Oakes there." and custody of their minor granddaughter, and, in so far as their right of recovery is

[2] The facts alleged in appellants' petition concerned, it is immaterial that the appellees and the evidence adduced being insufficient surreptitiously and without the knowledge of to bring the case under the seventh exception appellants secured possession of the child to the venue statute—that is, the fraud aland by false and fraudulent representations leged not being the gist or basis of appelmade to it induced the child to accompany

lants' action—the overruling of appellants' them without complaint or resistance. The

exceptions to the pleas of privilege of the decision made in the cited case is clearly appellees, even if said pleas were defective grounded upon the proposition that the

in failing to allege that the matters of fraud fraud alleged therein was not the gist of and charged in appellants' petition were inserted did not constitute the plaintiffs' cause of actherein for the fraudulent purpose of con

What is said in the court's opinion to ferring jurisdiction, furnishes no ground for the effect that the testimony showed that, a reversal of the case, as the proper result when the child was carried from Brown has been reached, and no harm done appelcounty, the plaintiff voluntarily went with lants by that specific ruling. it; and that the proof fails to show that his The third assignment of error is to the efpossession and right to control the child fect that the trial court erred in sustaining were interfered with by either of the defend- appellees' pleas of privilege, because the tesants until they reached the home of the timony adduced upon the hearing of said child's grandparents in Pecos county, should pleas establishes the fact, which is unconbe, in our opinion, regarded as mere argu- troverted, that the subject-matter of this suit ment, and not as expressing facts which ma- was secured, acquired, and removed out of terially affected and induced the decision the possession, control, and custody of the made. The decision based upon the ground appellants by fraud perpetrated by appellees stated was, we think, correct, and yet it oc- in Dallas county, Tex.; hence the court erred in sustaining said pleas. This assignment, correspondence with the opposing attorney, is disposed of against appellants by our dis- such evidence excluding the idea of plaintiff ascussion of their first and second assign- sisting in the settlement.

7. CONTRACTS On 29 - EXECUTION JURY ments. Both the allegations and the proof

QUESTION show that the fraud alleged "is not the gist Where there is a material difference beof and does not constitute the appellants' tween the terms of a contract as testified to by cause of action,” but, as said before, their plaintiff and as testified to by defendant, it was cause of action is founded upon the fact mit to jury the issue of whether contract as

reversible error for the court to refuse to subthat they have been and probably are unlaw- testified to by plaintiff was executed and delivfully deprived of the possession and custody ered. of their grandchild, and the fraud alleged, Appeal from Dallas County Court; T. A. in so far as their right of recovery is con- Work, Judge. cerned, is immaterial.

Action by W. J. Newcom against J. J. For the same reason the ninth exception Ellerd and another. Judgment for plaintiff, to the general rule laid in the statute on the and defendant named appeals. Reversed, ground of crime cannot be invoked, which in and cause remanded. fact is not done by the pleadings, as author

Ellis P. House and Bern Wilson, both of izing the maintenance of the suit in Dallas Dallas, and Ocie Speer, of Ft. Worth, for county. The case of Finney v. Walker, 144 S. W. M. Parks, all of Dallas, for appellee.

appellant. Pierson & Thomas and Marcus 679, is cited in support of the contention of appellants. That case is not in conflict with

RAINEY, C. J. "W. J. Newcom filed suit Sheffield v. Rousey, cited above to sustain the conclusions we have reached in this case.

in the justice's court, precinct No. 1, Dallas The judgment of the district court is af-county, against J. J. Ellerd and Reuben M.

Ellerd, to recover $200, the notation of the firmed.

pleadings upon the justice's docket being:
'Suit upon debt for $200.00, of date
due

interest ELLERD V. NEWCOM. (No. 7974.)

per cent., attorney's fees

per cent.' The defendants (Court of Civil Appeals of Texas. Dallas. answered by a plea of privilege to be sued in May 11, 1918.) Hale county, Tex., the county of their resi

The 1. JUSTICES OF THE PEACE Cw174(26)-EVI-dence, and otherwise joined issues. DENCE ADMISSIBLE UNDER PLEADINGS. plaintiff dismissed in the justice's court as to

In an action tried first in the justice court, defendant R. M. Ellerd, and recovered judgand later, on appeal, in the county court, evi- ment against defendant J. J. Ellerd for the dence as to a written contract was admissible, although written contract was not pleaded, no amount sued for. The defendant J. J. Ellpleadings being required by statute in the jus- erd filed his appeal bond to the county court tice court or on appeal in the county court.

of Dallas county, at law. The record does 2. JUSTICES OF TIIE PEACE Ow174(23) not disclose any pleading by the plaintiff in JUDGMENT-NOTICE TO DEFENDANT. Where it is apparent,

from a judgment for the county court of Dallas county, at law, the plaintiff in the justice court, that it was other than the pleadings in the justice court. founded on a written contract, such judgment The defendant filed an amended original anshows that such contract must have been swer, expressly subject to his plea of privipleaded in that court, and is notice to the de- lege, and, besides the general issue, pleaded fendant, in an appeal action in the county court, that plaintiff is seeking to recover on a written non est factum and failure of consideration contract.

as to the instrument declared on. The case 3. PLEADING Omw403(3)-DEFECTS—CURE BY was submitted to a jury on special issues PLEADINGS OF ADVERSE PARTY.

and judgment entered for the plaintiff Where defendant's pleading denies the existence of a written contract, such denial raises against defendant and his bondsmen for the the issue of whether such contract ever existed, sum of $211, with interest.” Defendant per

$ although contract was not pleaded by plaintiff, fected appeal to this court. and evidence tending to show whether it existed

The error assigned is taken from appelis competent.

lant's amended motion for new trial, which 4. CONTRACTS Cm 29-QUESTION FOR JURY- is as follows:

–· EXISTENCE OF CONTRACT. Question of whether a certain written con- testify, over the objection of defendant, that

"The court erred in permitting plaintiff to tract ever existed is for the jury. 5. APPEAL O

the defendant entered into a written contract AND ERROR 1050(4)—SECON- with him (plaintiff), and that said contract DARY EVIDENCE-HARMLESS ERROR.

had been lost; that said agreement was writThe introduction of a copy of a letter in ten on a small card, and that John H. Gaston evidence, without notice to produce the original, and Charles 0. Hodges and others saw agreewas harmless error, where such letter did not contradict evidence of the adverse party.

ment; that said agreement read as follows:

'I promise to pay W. J. Newcom $200.00 in the 6. APPEAL AND ERROR 1056(1) - HARM city of Dallas, if a certain lawsuit now pendLESS ERROR-EXCLUSION OF EVIDENCE. ing between Ellerd Brothers and Charles 0.

The refusal to permit a witness to testify Hodges is settled out of court. [Signed] J. J. that plaintiff did not effect a compromise in a Ellerd.' Defendant objected to the introduction lawsuit, if error, was harmless, where witness of this testimony on the ground that no pleadtestified that he effected compromise through lings were filed alleging the execution of such a

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