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the petition of the San Antonio & Aransas Pass Railroad Company in said cause, for the reason that the petition of said railroad company showed upon its face that it did not desire to relocate its main line track, but to abandon the same between the points mentioned in said petition, and to use instead between said points the railways of the Houston & Texas Central Railroad Company and of the Galveston, Harrisburg & San Antonio Railway Company, whereas the law of Texas prohibits the San Antonio & Aransas Pass Railroad Company from abandoning such portion of its main line track. Second. Because the petition of the San Antonio & Aransas Pass Railway Company, together with all the facts and circumstances introduced in evidence, showed conclusively that such abandonment of that portion of its main line tracks as it sought permission to abandon, and a relocation of its lines, if same amounted to a relocation of its lines, which this plaintiff denies, did not in fact shorten its line, but, on the other hand, lengthened it by several miles, and did not in fact reduce its grades or any of them. This plaintiff says that said order of the Railroad Commission upon said petition is without authority of law, for the reasons stated hereinabove, and that this plaintiff is a party at interest for the reasons hereinabove stated."

The court sustained a general demurrer to appellant's petition, and judgment was entered against it in accordance therewith, from which it prosecutes this appeal.

Opinion.

If the commission was authorized to make the order complained of, or if appellant had no such interest in the subject-matter in controversy as would authorize it in resisting the making thereof, then, in either event, the

ruling is correct, and the case should be affirmed. But it is strenuously insisted on the part of appellant, first, that the appellee had no right to enter the order granting the railway company the right to remove its track and enter the city over the tracks of

the other railways mentioned; and, second, that appellant had such an interest in the matter in controversy as would authorize it to resist the enforcement of such order. So that it becomes necessary for us to take up, discuss, and determine both contentions of appellant.

for the water supply, or for the right of way, or for new right of way for change or relocation of roadbed to shorten the line, or any part thereof or to reduce its grades, or any of them, which is hereby authorized and permitted, or for any other lawful purpose connected with or necessary to the building, operating, or running its road, such corporation may quire such property in the manner provided in this chapter; provided, that the limitation in width prescribed in article 6484, shall not apply to real estate, or any interest therein, required for the purposes herein mentioned, other than right of way, and that real estate, or any interest therein, to be acquired for such other purposes or any of them need not adjoin or abut on the right of way; provided, further that no change of the line through any city or town, or which will result in the abandonment of any station or depot, shall be made, except upon written order of the Railroad Commission of Texas, authorizing such change; and provided, further, that no railroad corporation shall have the right under this act to condemn any land for the purposes mentioned in this article situ ated more than two miles from the right of way of such railroad corporation."

Pretermitting a discussion of the contention urged by appellant to the effect that the amendments to this statute, which originally passed in 1876, were unconstitutional, in that they did not comply with section 35, article 3, thereof, requiring that no bill shall contain more than one subject, which shall be expressed in its title, still we think that it was the intent of the Legislature, as clearly expressed in said act, to limit the railroads' right of relocation to the two purposes mentioned in the statute, to wit, to shorten the line, or to reduce the grades. It appears from the averments of the petition in this case that neither of such results would follow, but, on the contrary such change would lengthen its line and increase the grades; and these averments are

to be taken as true in passing upon the de

murrer.

The expression "or for any other lawful purpose" is not a part of any of the amendments to such statute, but was contained in the original act as passed in 1876 (see page 146, Session Acts of 1876; page 982, vol. 8, Gammel's Laws of Texas, § 21), which was a condemnation act limited to the purposes therein mentioned, and therefore could not be construed, as appellee contends, to grant such right of relocation, notwithstanding the fact that it might lengthen the line or increase the grades; such expression, therefore, must be limited to the purposes mentioned in the original act, and cannot be construed to extend to the purposes mentioned in the amendments, or to any other

[1, 2] The rule seems to be well settled, not only in Texas, but elsewhere, that a railway company, after having once located, established, and operated its line of railway, has no right to abandon and change its location, unless specially authorized so to do by legislative enactment. See Sugarland Ry. Co. v. State, 163 S. W. 1047, and cases there cited. The appellee insists that it was spetially authorized to pass the order complained of under article 6504, Vernon's Vernon's purpose. In addition, we also hold that this Sayles' Revised Civil Statutes of Texas, which reads as follows:

statute did not authorize the commission to make the order in question, because there "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 stat

make the change is forbidden by article 6550, vol. 4, Vernon's Sayles' Civil Statutes, and that the case is ruled in this respect by the case of Sugarland Ry. Co. v. State, supra.

[3] We think the second question must also be resolved in favor of appellant. Article 6677f, vol. 4, Vernon's Sayles' Civil Statutes, referring to orders made by the Railroad Commission, reads:

"If any such person, association or corporation or other party at interest (italics ours) be dissatisfied with any decision, rate, charge, toll, rule, order, act or regulation adopted by the commission, such dissatisfied person, association, corporation, or party may file a petition setting forth the particular cause or causes of objection to such decision, rate, charge, toll, rule, order, act or regulation, or to either or all of them, in a court of competent jurisdiction in Travis county, Texas, against such commission as defendant," etc.

The petition in this case discloses that appellant was the owner of a lumber business that would be materially affected if the order of the commission should go into effect. He was therefore a party at interest, and it is made to appear from the averments of the petition that he was dissatisfied with the order made herein, which gave him, we think, the right to have the same reviewed, as he is here undertaking to do. While not questioning the rule announced in the case of M., K. & T. Ry. Co. v. Colburn, 90 Tex. 230, 38 S. W. 153, we think it is not applicable here, but that the plain terms of the statute justify the course pursued on the part of appellant.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Habeas corpus by W. B. Slaughter and wife against C. E. Oakes and others. From judgment for defendants, plaintiffs appeal. Affirmed.

John W. Pope, of Dallas, for appellants. Spence, Haven & Smithdeal, of Dallas, and Reeder & Reeder and J. B. Dooley, all of Amarillo, for appellees.

TALBOT, J. This suit was instituted by Mr. and Mrs. W. B. Slaughter, husband and wife, in the district court of Dallas county, Tex., against Mr. and Mrs. C. E. Oakes, husband and wife, and Mrs. Eloise Slaughter, in which the plaintiffs seek by writ of habeas corpus to recover possession of Dorothy Corine Slaughter, a girl about 11 years of age. The plaintiffs are the paternal grandparents, the defendants, Mr. and Mrs. Oakes, are the maternal grandparents, and the defendant, Mrs. Eloise Slaughter, is the mother of the child. The plaintiffs resided in Dallas county, Tex., and the defendants, who had the custody of the child when the suit was instituted, resided in Potter county, Tex. The petition, among other things, alleged that Coney Slaughter, the father of the child, did not reside in the state of Texas, and that his whereabouts were unknown to the plaintiffs; that when the child, Dorothy Corine Slaughter, was only 32 months of age, it was given and turned over to plaintiffs by both its father and mother; that plaintiffs then took possession of Dorothy and carried her to their home; that from the time she was turned over to plaintiffs they, at the special instance and request of her parents, had 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 Dallas, in the state of Texas, and whilst attending school, "it was fraudulently seized, taken possession of, and surreptitiously and clandestinely conveyed and spirited away from the lawful custody and possession of the 1. VENUE 31-HABEAS CORPUS-FRAUD AS relators and out of the state of Texas, and Habeas corpus to recover possession of pe- into the city of Ardmore, state of Oklahoma," titioners' 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. Civ. 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

Believing that the court erred in sustaining the demurrer, its judgment is reversed, and the cause remanded. Reversed and remanded.

SLAUGHTER et ux. v. OAKES et al.
(No. 7936.)

(Court of Civil Appeals of Texas. Dallas.
April 20, 1918. Rehearing Denied
May 18, 1918.)

BASIS OF ACTION.

of defendant's residence.

WRONG

2. APPEAL AND ERROR 1040(13)
GROUND OF DECISION.
Where suit is brought in wrong county,
overruling plaintiff's exceptions to pleas of priv-
ilege, even if the pleas are defective in fail-
ing to allege that fraud was charged in the
petition for the fraudulent purpose of conferring
jurisdiction, is not ground for reversal; the
proper result having been reached.

in furtherance and consummation of said conspiracy said defendants came to the city of Dallas, Tex., and without the knowledge of plaintiffs went to the school where Dorothy was a student, and "fraudulently and falsely" represented to her that her sister was ill in the state of Oklahoma and that it was necessary to carry

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 possible haste, and that Dorothy, without knowing that such representations were false, and in obedience to the command of her mother, went with her, and was thence rapidly carried out of Dallas county, Tex., and into the state of Oklahoma. The petition further alleges that shortly after reaching Oklahoma Dorothy's mother left her in the custody of her maternal grandmother, Mrs. Oakes, and that both of them have refused to redeliver the custody of Dorothy to plaintiffs; that the plaintiff Mrs. W. B. Slaughter filed suit in the district court of Carter county, Okl., in which all of the defendants herein were made parties, to recover possession of the said child, and that final judgment was rendered in said suit, awarding the custody of the child to plaintiff Mrs. W. B. Slaughter, but that notwithstanding said judgment said defendants, Mrs. Eloise Slaughter and Mr. and Mrs. C. E. Oakes, are yet unlawfully withholding the possession of said child from plaintiffs, and refuse to return her to plaintiffs. It is further alleged that the defendants "are temporarily located in the city of Amarillo, Potter county, Tex., and are living in the same house together, and by concert of action are unlawfully holding the custody of the said child in their possession." On the 5th day of February, 1917, the appellees, Mrs. C. E. Oakes, Mrs. Eloise Slaughter, and C. E. Oakes, filed their pleas of privilege in this cause, alleging that they and each of them resided at the date of the institution of this suit in the county of Potter, state of Texas; and the appellees Mrs. C. E. Oakes and Mrs. Eloise Slaughter, in addition to their allegation that they and each of them resided in the county of Potter, Tex., denied specifically the conspiracy and fraud as charged in the petition or application of the appellants for writ of habeas corpus, and prayed for the custody of the said minor child. Whereupon the appellants filed their replication to the said pleas of privilege, excepting to the legal sufficiency thereof. Upon the pleadings so made up, and upon the issues presented by them, the court, on the 5th day of February, 1917, heard and considered the replication of the appellants, and overruled the same, and then heard and considered the said pleas of privilege of the appellees, and, after hearing the evidence, such as was introduced as shown by the statement of facts in this cause, and after hearing the argument of counsel, sustained the said pleas of privilege, and ordered the said cause transferred to the district court of Potter county, Tex., to all of which rulings and orders of the court appellants excepted, and gave notice of appeal.

[1] The appellants present three assignments of error. The first is, in substance, that the district court erred in overruling the exception of appellants to the pleas of privilege of the appellees on the specific ground

charge of fraud .and conspiracy averred in appellants' petition was so averred for the fraudulent purpose of conferring jurisdiction on the court in the county where the suit was brought.

The second assignment is to the effect that for the same reason the trial court erred in sustaining said pleas of privilege. The proposition advanced under these two assignments is as follows:

"Where a petition contains fraudulent allegations of fact which, if true, would bring the case under one of the exceptions of the statout of the county of his residence, then the deute which authorizes a defendant to be sued fendant must plead in limine to the jurisdiction, setting forth the true facts of the case, and allege that the allegation that the fraud was perpetrated in the county where the suit was brought was inserted in the petition for the fraudulent purpose of conferring jurisdiction, and a plea of privilege, not containing such a charge, is insufficient."

In support of this proposition appellants cite the cases of Watson v. Baker, 67 Tex. 48, 2 S. W. 375, Sanders v. Dunn, 158 S. W. 1041, and Pearce v. Wallis, Landis & Co., 124 S. W. 496.

Watson v. Baker was a suit by Watson to rescind a parol contract alleged to have been induced by Baker's fraudulent representations made in the county where the suit was brought, and the rules of law which govern in cases where a defendant is sued in a county other than that of his residence are clearly stated. Baker pleaded to the jurisdiction of the court on the ground only that he was sued out of the county of his residence, which Watson had alleged was Franklin county, Tex. No action was taken on the plea to the jurisdiction of the court, but after the trial on the merits, the court dismissed the case for want of jurisdiction, the statute not then authorizing a change of venue to the county of the defendant's resi dence. In reviewing this action of the trial court the Supreme Court, after stating that whenever it becomes apparent to a court, at any stage in the progress of a cause, that it has no authority under the law to adjudicate the issues presented, it becomes its duty to dismiss it, held that the right of a defendant to plead to the jurisdiction of the court, when sued out of the county of his residence, was a personal privilege, which, if not exercised at the proper time and in a proper manner, did not take away the authority of the court to hear and determine the case made against him; that jurisdiction as to the subject-matter must be determined in the first instance by the petition, and where its allegations show a case within the power of the court to decide, the suit will be entertained, unless it subsequently appears that the jurisdictional facts have been fraudulently alleged for the sole purpose of conferring the jurisdiction; but that, when the evidence shows clearly that the court has no power to determine the real case developed,

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fraudulently inserted, the court will dismiss of its own motion. The court, however, further held that if the evidence merely shows that the court has no jurisdiction over the person of the defendant, the rule stated is not applicable; that when the defendant is sued out of the county of his residence, and the plaintiff fraudulently alleges facts which would bring the case under one of the exceptions to the general rule laid down in the statute, he must plead in limine to the jurisdiction of the court, and must in his plea set forth the true facts of the case and allege the fraudulent purpose of the petition. Manifestly, Watson v. Baker, which is cited and followed in Sanders v. Dunn, supra, a suit similar in its facts, is authority for the proposition that in a suit in which the fraud alleged is the gist of and constitutes the plaintiffs' cause of action, the defendant in. his plea of privilege to be sued in the county of his residence "must set forth the true facts of the case and allege the fraudulent purpose of the petition." But a habeas corpus proceeding to recover the possession of a child is a civil suit, and, like any other such action, the proper venue is ordinarily the county of the defendant's residence; and, where fraud is alleged to bring the case under the seventh exception of article 1830, Vernon's Sayles' Civil Statute, the fraud must be the gist or basis of the action. So that if the conduct of Mrs. Eloise Slaughter in regaining possession of her child under the circumstances of this case could be regarded as fraudulent within the meaning of our statute, such fraud is not the gist or basis of appellant's action. Sheffield v. Rousey, 153 S. W. 653. As was similarly said in the case here cited, their cause of action rests upon the fact that they probably have been unlawfully deprived of the possession and custody of their minor granddaughter, and, in so far as their right of recovery is concerned, it is immaterial that the appellees surreptitiously and without the knowledge of appellants secured possession of the child and by false and fraudulent representations made to it induced the child to accompany

them without complaint or resistance. The decision made in the cited case is clearly grounded upon the proposition that the

curs to us that the facts of that case presented stronger reasons for holding that the case came under the seventh exception of article 1830 of the statute than do the facts of the case at bar. There the alleged fraud was perpetrated and operated directly upon the father of the child, and the existence of the alleged facts constituting the fraud was shown. Here no representation is charged to have been made by either of the appellees to either of the appellants for the purpose of obtaining possession of the child, Dorothy Corine Slaughter. The charge, in substance, is that in pursuance of a conspiracy the mother and maternal grandmother of the child came to the city of Dallas, and, without apprising the appellants of the presence or design surreptitiously went to the school where the child was a student and took her away. The substance of the allegations of false and fraudulent representations are that the mother stated to Dorothy, when she found her, "that her sister was ill in the state of Oklahoma, and that it was necessary to carry her to the bedside of the said sick sister in all possible haste." The testimony offered in support of these allegations, so far as the record shows, is that of little Dorothy. She testified that her mother told her "that Glady's blue veins were still showing, and she was going to take her to the doctor, and she wanted me to come along with her." She further testified:

"Gladys is my little sister. I then went on over to the school, where I talked with Mrs. Morgan, the teacher, and then I went on over to the house, and my mother took me from my home. My grandmother, Mrs. W. B. Slaughter, was not there at the time."

She further said:

"I did go and see my sister. She was sickher veins were showing. I saw my sister at the Interurban Station, and also saw my grandmother Oakes there."

[2] The facts alleged in appellants' petition and the evidence adduced being insufficient to bring the case under the seventh exception to the venue statute-that is, the fraud alleged not being the gist or basis of appelexceptions to the pleas of privilege of the lants' action-the overruling of appellants' appellees, even if said pleas were defective in failing to allege that the matters of fraud charged in appellants' petition were inserted therein for the fraudulent purpose of conferring jurisdiction, furnishes no ground for a reversal of the case, as the proper result has been reached, and no harm done appellants by that specific ruling.

fraud alleged therein was not the gist of and did not constitute the plaintiffs' cause of ac tion. What is said in the court's opinion to the effect that the testimony showed that, when the child was carried from Brown county, the plaintiff voluntarily went with 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 err

7. CONTRACTS 29 EXECUTION - JURY QUESTION.

ed 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. ments. Both the allegations and the proof show that the fraud alleged "is not the gist of and does not constitute the appellants' cause of action," but, as said before, their cause of action is founded upon the fact that they have been and probably are unlawfully deprived of the possession and custody of their grandchild, and the fraud alleged, in so far as their right of recovery is concerned, is immaterial.

For the same reason the ninth exception to the general rule laid in the statute on the ground of crime cannot be invoked, which in fact is not done by the pleadings, as authorizing the maintenance of the suit in Dallas county.

The case of Finney v. Walker, 144 S. W. 679, is cited in support of the contention of appellants. That case is not in conflict with Sheffield v. Rousey, cited above to sustain the conclusions we have reached in this case.

The judgment of the district court is af

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JUDGMENT-NOTICE TO DEFENDANT.

Where it is apparent, from a judgment for the plaintiff in the justice court, that it was founded on a written contract, such judgment shows that such contract must have been pleaded in that court, and is notice to the defendant, in an appeal action in the county court, that plaintiff is seeking to recover on a written contract.

3. PLEADING 403(3)-DEFECTS-CURE BY PLEADINGS OF ADVERSE PARTY.

Where defendant's pleading denies the existence of a written contract, such denial raises the issue of whether such contract ever existed, although contract was not pleaded by plaintiff, and evidence tending to show whether it existed is competent.

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Where there is a material difference between the terms of a contract as testified to by plaintiff and as testified to by defendant, it was reversible error for the court to refuse to submit to jury the issue of whether contract as testified to by plaintiff was executed and delivered.

Appeal from Dallas County Court; T. A. Work, Judge.

Action by W. J. Newcom against J. J. Ellerd and another. Judgment for plaintiff, and defendant named appeals. Reversed, and cause remanded.

Ellis P. House and Bern Wilson, both of Dallas, and Ocie Speer, of Ft. Worth, for appellant. Pierson & Thomas and Marcus M. Parks, all of Dallas, for appellee.

RAINEY, C. J. "W. J. Newcom filed suit in the justice's court, precinct No. 1, Dallas county, against J. J. Ellerd and Reuben M. Ellerd, to recover $200, the notation of the pleadings upon the justice's docket being: 'Suit upon debt for $200.00, of date due interest per cent., attorney's fees per cent.' The defendants answered by a plea of privilege to be sued in Hale county, Tex., the county of their resiThe dence, and otherwise joined issues. plaintiff dismissed in the justice's court as to defendant R. M. Ellerd, and recovered judgment against defendant J. J. Ellerd for the amount sued for. The defendant J. J. Ellerd filed his appeal bond to the county court of Dallas county, at law. The record does not disclose any pleading by the plaintiff in the county court of Dallas county, at law, other than the pleadings in the justice court. The defendant filed an amended original answer, expressly subject to his plea of privilege, and, besides the general issue, pleaded non est factum and failure of consideration as to the instrument declared on. The case was submitted to a jury on special issues and judgment entered entered for the plaintiff against defendant and his bondsmen for the sum of $211, with interest." Defendant perfected appeal to this court.

The error assigned is taken from appellant's amended motion for new trial, which is as follows:

"The court erred in permitting plaintiff to testify, over the objection of defendant, that the defendant entered into a written contract with him (plaintiff), and that said contract had been lost; that said agreement was written on a small card, and that John H. Gaston and Charles O. Hodges and others saw agreement; that said agreement read as follows: 'I promise to pay W. J. Newcom $200.00 in the city of Dallas, if a certain lawsuit now pending between Ellerd Brothers and Charles O. Hodges is settled out of court. [Signed] J. J. Ellerd.' Defendant objected to the introduction of this testimony on the ground that no pleadings were filed alleging the execution of such a

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