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Calvin Marshall, taken in 1915, and he tes-, were testified to by J. A. Watson. Also, tified that in his opinion John Moore was, as bearing upon the issue of identity of the at that time, about 90 years old ; that he had Hardeman county John Moore with the origknown him for about 23 years.

inal grantee of the land in question, the The defendants below, among other things, plaintiffs below introduced another witness, introduced on this point the deposition of J. John Pickering, who testified that he was C. Elliott, taken in 1915, who testified that he born on the 1st of January, 1818, in the state was 76 years old at the time, and that he had of Mississippi, and that he came to Texas in known the Hardeman county John Moore ap- 1836, and shortly thereafter entered the war proximately 60 years;

that John Moore's between Texas and Mexico then going on, first wife, Miss Elliott, was witness' cousin; and was one of the participants in the battle that when witness first met John Moore he of San Jacinto. This witness further testiappeared to be between 23 and 25 years of fied that after leaving the vicinity in which age; and that he has known John Moore in- this battle was fought, and some time early timately ever since that time. He further in the spring of the following year, he made testified that this Hardeman county John his way to Shelby county, Tex., and there Moore often spoke about his age during the fell in company with some of the early surtime witness knew him, and that it was fre- veyors in that part of the country, among quently mentioned by this John Moore that them being Arthur Henrie

Henrie and David he was just 9 years older than this witness. Brown; that witness followed the gambler's The witness further stated that he never in profession at that time, playing mostly the his life, although knowing John Moore inti- game of "seven-up," of which he was very mately for more than 60 years, heard him fond, and that he had many times played say that he was in doubt of his true age, and the game with old David Brown, whom hé never on any occasion heard him mention the called "Uncle Dave," and that he had won "record” made by his brother-in-law, Marion, many a dollar from David Brown in this nor anything in that connection; that he al- game. He further testified that some time

. ways spoke of the date of his birth as being during the year 1837, and while he was folJanuary 1, 1830, and seemed to have no doubt lowing the camps of these old surveyors, he of its correctness. Also the defendants intro- became acquainted with two young men duced the deposition of Mrs. Sarah Styles, whose names he understood to be William who testified that she was 68 years of age; Moore and John Moore; that these young that she had know the Hardeman county men claimed to be brothers, and also claimJohn Moore for more than 60 years; that he ed that they were from Hawkins county, married witness' sister, Miss Elliott; that Tenn. He stated that William seemed to be witness had often heard this John Moore say a little older than John, and that John seemthat he was born January 1, 1830; and that ed to be a little older than this witness. he never at any time during all the years also stated that he met at that time in that she had known him claimed that he was in vicinity a man by the name of Foard Mann doubt as to his correct age. Also defend it was claimed by the plaintiffs that Forg ants introduced the deposition of W. S. El- Mann was the man referred to by witness), liott, who testified that he was 70 years old; and, among other things, the witness further that he had known the Hardeman county stated that on one occasion he carried a note John Moore for a period of 63 years, having written by Arthur Henrie to David Brown, first met him in 1852, and further testified and delivered this note to this young man that Miss Elliott, John Moore's first wife, who called himself "John More.” He furwas witness' sister, and further that he had ther stated that, as he understood the conheard Moore say many times during the tents of this note, it was in substance a dimany years he had known him intimately rection from Arthur Henrie to David Brown that he was born January 1, 1830, and that to show this young man, John Moore, his John Moore never, in all these years, express- land, and witness stated that this matter ed any doubt of his correct age. The witness was unusually impressed upon his mind at further stated that in his opinion the Harde- the time, because of the fact that the spellman county John Moore was about 85 years ing of the name “More” on this note was

different from the way the name Moore was It was further shown by J. W. Minton, an always spelled, so far as this witness knew, attorney residing at Hemphill, that some and he remarked to himself at the time that time in the winter of 1911 the Hardeman it was strange that a man of David Brown's county John Moore came into witness' office ability and business experience and supposed making inquiry about land, and asked him education, etc., wouldn't know how to spell something about abstracts, and that upon “Moore," and, if we mistake not, he testithat occasion this John Moore told Minton fied that he called David Brown's attention that he was then 82 years old, and, accord to this in a little pleasantry, and David ing to Minton, Moore further stated to him Brown replied that this young man, John on that occasion that he (Moore) did not More, spelled his name with one "o," and not come to Texas himself to get the land, but wth two “o's," as usual. The witness furthat his "folks” came to Texas and got the ther stated that he only saw this young man two in those days, and perhaps never had, tober 3, 1835, the execution of which was witmore than one or two conversations with him nessed and proved for record, and recorded as in his life, and never met him again there shown in the beginning of this opinion, and after until a few days before this case was this is the deed that these defendants in ercalled for trial—something more than three- ror, M. G. Moore and W. H. Ratliff, claimed quarters of a century. And he further testi- was a forgery. In addition to this, the recfied that while, of course, he could not un-ord discloses that Porter and Lane, claiming dertake to say that the Hardeman county under this deed to them, commenced to assert John Moore, who testified in this case, was their ownership of this land, and same was the same young man who called himself conveyed down through the years, by mesne John Moore in 1837, and could not identify conveyances by their successors in title, him as being the same man, yet it is ap- claiming under this deed, which these deparent from the record in this case that this fendants in error claimed was a forgery, and witness would have sworn that he believed said Porter and Lane and their successors in this Hardeman county John Moore was the title, claiming under and through this deed, same John More that he had met in 1837, have continued to assert ownership and exerbasing such belief upon statements made to cise actual ownership by dealings in and conwitness by the Hardeman county John veying this land from one to another, which Moore a day or two before the trial below.deeds have been placed of record, during all This belief on the part of the witness seemed of which great length of time no claim of to be based principally upon the fact that this any character whatever has been asserted Hardeman county John Moore had, during thereto by the Hardeman county John Moore, a conversation just before this trial, men

of age.

or by any one claiming under him, until tioned to witness the name of another man shortly before this suit was filed, as stated whom the witness met and knew well in that in the beginning. vicinity in 1837, and whose name was "Colo- We might mention other strong circumnel" Pickett. These are substantially all stances appearing from this record tending the facts that the witness Pickering detailed to show that the claim of title set up by the that would have any tendency to prove that Hardeman county. John Moore to this league this Hardeman county John Moore was the of land was not well founded, but we think same man to whom this league of land was that we have already stated enough to show granted in 1835.

that this court is clearly justified in the conOn the trial below, in addition to the evi- clusion we have reached in this case, and we dence introduced by the defendants, as here shall therefore not incumber this opinion inbefore mentioned, they also produced the with further details. original testimonio, which was delivered by Now, it is first contended by these plainthe Mexican government to the original gran- tiffs in error Toole et al. that the trial court tee of this league of land at the time the was in error in declining to peremptorily grant was extended, which instrument, it was instruct a verdict in favor of all defendants shown, came from the proper custody, and as against the plaintiffs below for all the about which there was no question as to its land claimed by them respectively, and under genuineness. It will be remembered that at this assignment plaintiffs in error contend the date of the grant of this land the law of that, there being no evidence going to show the Mexican government provided the meth- that the deed from the purported original od of extending titles, and that the method grantee to Porter and Lane was a forgery, adopted at that time was to execute what was and having connected themselves by mesne called the protocol, which was kept on file conveyances with the title conveyed by that by the Mexican government as an archive, deed, they were entitled to recover the land and the testimonio, which was simply a copy as against the plaintiffs. or, as frequently termed, duplicate original [1] We cannot sustain this assignment, for of the protocol, was delivered to the colonist the reason that we cannot correctly say that as the evidence of his title to the land grant- there was no evidence to go to the jury on ed. This original testimonio, we repeat, writ- the issue of forgery of said deed, because the ten in the Spanish language, was produced testimony of the Hardeman county John and introduced in evidence by the defend-Moore himself was some evidence on that isants in this case, and it was nowhere shown sue, and the rule in this state being, as we that the Hardeman county John Moore ever understand it, that the court cannot peremphad in his possession or saw this instrument, torily- instruct a verdict on any issue as but his only claim in that connection is that against a party to a suit where there is his brother William had whatever title pa- some evidence in his favor on the issue inpers there were to this land, and that these volved, we must therefore overrule this astitle papers were lost in the Mississippi riy-signment. er in 1850.

[2] The next assignment raises a different The defendants below also produced from question, however, and by the same it is conthe proper custody and introduced in evi- tended that the burden of proof being on the dence what purported to be the original deed plaintiffs below to prove title to the land in from the original grantee of this land to Por-controversy, in order to recover the same ter and Lane, dated, as before stated, Oc- from the defendants, and plaintiffs having

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failed to do so by evidence legally sufficient,, merely contradictory, or where it was a questhe trial court should have set aside the ver- tion of mere credibility of witnesses, and the dict of the jury in favor of the plaintiffs and evidence as a whole is reasonably sufficient granted the defendants, against whom re- to support the verdict, but all the Courts of covery was had, a new trial. This assign-Civil Appeals in this state have held that

, ment we have concluded, after very careful where the evidence relating to a jury's verconsideration, we must sustain. The facts dict on a question of fact so clearly and we have mentioned above relate to both of overwhelmingly preponderates against the the main findings made by the jury in this verdict as to make it clear to the appellate case; that is (1) that the Hardeman county court that such verdict was wrong then such John Moore was the man to whom this league verdict should be disregarded and set aside of land was granted in 1835, and (2) that he by the appellate court, and in this case this did not convey the same to Porter and Lane. court has been constrained to conclude that After very careful consideration of the entire the evidence clearly and overwhelmingly record in this case, we have reached the con- preponderates against the verdict of the juclusion that the evidence introduced on the ry on both of the main issues submitted to it, trial below, as reflected by this record, con- and so much so that this court feels comsidered as a whole, was unsufficient to war- pelled to say, in the discharge of its duty, rant a finding by the jury that the Harde- that the verdict is clearly wrong. It would man county John Moore, under whom the serve no useful purpose to here dissect and plaintiffs below claimed this league of land, analyze by way of argument this evidence, , was the original grantee of this land; and, and in view of another trial we think best of course, if he was not such, then it follows, not to do so. We therefore only say in conwithout any room for controversy, that there clusion that the assignment of the plaintiffs was no proof whatever and no necessity for in error Toole et al., challenging the verdict any proof whatever that the deed of October of the jury in this case for lack of sufficient 3, 1835, from the purported grantee to Por- evidence to support it and the judgment of ter and Lane was a forgery.

the trial court in refusing to grant a new [3, 4] In reaching this conclusion in this trial upon the same ground, is sustained, and matter we have not been unmindful of the the judgment to that extent is reversed and rule obtaining in this state that our Courts the cause remanded, as between said plainof Civil Appeals are not authorized to dis- tiffs in error Toole et al. and the defendants turb a jury's verdict or finding on an issue in error M. G. Moore et al. of fact, where that verdict or finding has We now take up the case as brought here reasonable support in the evidence, although by the writ of error of M. G. Moore et al. v. it may appear to the appellate court that American Lumber Company. As stated in such verdict or finding is against what they the beginning of this opinion, upon concluconceive to be a preponderance of the evi-sion of the evidence below, the trial court dence relating thereto. That rule is firm- granted a peremptory instruction requested ly established in this state, and we have no by defendant in error American Lumber inclination to question, in fact do not doubt, Company to the jury, directing the jury to its wisdom; and it may be found that only return its verdict in favor of said defendant in rare instances has this court disturbed for a particular 1,107 acres in the league of the verdict or finding of a jury on any ques- land sued for, and upon that verdict entertion of fact in any case decided by this

case decided by this ed judgment in favor of said defendant for court, and then only where, in the opinion that portion of the league. The main assignof this court, the verdict or finding was over- ment of the plaintiffs in error on this phase whelmingly and manifestly against the pre- of the case challenges the correctness of the ponderance of the evidence, and appeared to action of the trial court in giving this perthis court to be clearly wrong. We are not emptory instruction. The trial court in givunmindful of the fact that loose expressions ing this peremptory instruction assumed, as may be found in the reported cases to the appears from the record, that the American effect that where there is any evidence in Lumber Company proved its title to this the record in support of a jury's verdict or 1,107 acres under its pleas of limitation, and finding then the appellate court cannot dis-that the proof on that question was in such turb such verdict or finding, but it will be shape as to authorize the court in treating found, we think, upon examination of the the issue as one of law only, and therefore authorities where such expressions were required a peremptory instruction. used, that the court using such expressions [5] At the threshold of this part of the did not mean for such language to be con-case, we are met with an objection interposstrued literally, but only meant that where ed by defendant in error American Lumber the evidence was reasonably sufficient to sup- Company to a consideration of this assignport the verdict of the jury, it would not be ment by plaintiffs in error, based on the disturbed by the appellate court. Our ap- ground that the record in this case does not pellate courts have always held, with prac- show that any objection or exception to the tical unanimity, that a jury's verdict on a giving of this peremptory charge was made question of fact should not be disturbed by the plaintiffs in error in the court below,

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such showing by the record any assignment | league of land recovered by it, then it would based upon the giving of such peremptory in- be useless to consider other minor assignstruction should not and cannot be consid- ments of error in this connection, for the ered by this court. It appears from the rec- reason that even if this court should sustain ord that this defendant in error presented in them its action in doing so could not have writing a request to the trial court for a the effect to reverse the judgment in favor peremptory instruction, which was given as of this defendant in error as to the portion above stated, and it nowhere appears in the of the land recovered by it. record that any objection to the giving of It follows from what we have said that this charge was made by the plaintiffs in er- the judgment of the trial court in this case, ror. Nothing in the way of a formal bill of in so far as the same affects the plaintiffs in exception or any other character of objec- error Toole et al. and the defendants in ertion or exception was taken or made by the ror M. G. Moore et al. must be reversed, and plaintiffs in error to this action on the part the cause as to them remanded for a new of the trial court. The question is therefore trial; but the judgment, in so far as it resquarely presented whether this court is au- lates to the 1,107 acres of land recovered by thorized to consider this assignment and re- the defendant in error American Lumber view the action of the trial court in giving Company against the plaintiffs in error M. this charge.

G. Moore et al. should be affirmed, and it is It is suggested by the plaintiffs in error so ordered. that this action of the trial court constituted Reversed and remanded in part, and in fundamental error, and that no objections of part affirmed. any character to the court's action in giving this peremptory instruction was required, COBB & GREGORY v. DIES, County Judge, and that this court is authorized to review

et al. (No. 217.) that action, even without a formal assign- (Court of Civil Appeals of Texas. Beaumont. ment of error in the trial court. Upon ex- April 18, 1918. Rehearing Denied

May 15, 1918.) amination of this question, we find that each of the Courts of Civil Appeals of this state APPEAL AND ERROR 761-BRIEFS.

Under rule 36 of the Court of Civil Appeals has had occasion to pass upon the same, and (142 S. W. xiii), providing that there should be we find that each of them, with the excep-annexed to each proposition with its statement tion of the Galveston and Amarillo courts, and at the end of it a reference simply to the have held that, in order to entitle a party the following order, to wit: "The statutes and

authorities relied on, if any, in support of it in to complain of the trial court's action in giv- decisions of this state; the statutes and deciing a peremptory instruction, timely and sions of the United States; * * * elemenproper objection must be made thereto be" tary authorities; other decisions in the Amerfore such charge is given to the jury, and sent in the brief letters and statements from

ican and English courts”-it is improper to prethe action of the court upon such objection universities and colleges of the United States as must be properly reflected by the record. to the construction to be placed upon the lanWe agree with these several Courts of Civil guage of a statute. Appeals, and hold that this court is without

Appeal from District Court, Hardin Counauthority to consider this assignment of er- ty; L. B. Hightower, Sr., Judge.

Mandamus by Cobb & Gregory, a firm comror, and without discussing the matter further, we cite the following authorities in supposed of 0. E. Cobb and J. A. Gregory, port of our holding: Hendrick v. Blount against W. W. Dies, County Judge, and anDecker Lbr. Co., 200 S. W. 171; Thorne v.

other. From judgment for defendants, plainDashiell, 189 S. W. 986; Carr v. Pecos Val- tiff appeals. On motion by appellees to strike

Motion ley State Bank, 189 S. W. 988; Railway Co. out a portion of appellant's brief. v. Dickey, 108 Tex. 126, 187 S. W. 184; Rail

granted.

See, also, 203 S. W. 438. way Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Railway Co. v.

Mantooth & Collins, of Lufkin, and Orgain, Feldman, 170 S. W. 133; Case v. Folsom, 170 Butler & Bolinger, of Beaumont, for appellant. S. W. 1066; Bohn v. Burton-Lingo Co., 175 Leon Sonfield, of Beaumont, D. F. Singleton, S. W. 173; Railway Co. v. Wilson, 176 s. w. of Kountze, and J. L. Manry, of Livingston,

for appellees. 619; Denison v. McAmis, 176 S. W. 621; Donaldson v. McElroy, 184 S. W. 1100; Com- CHILTON, Special Judge. Appellees have monwealth v. Bryant, 185 S. W. 979; Strong filed a motion asking that a certain portion v. Harwell, 185 S. W. 676; McCall v. Roe- of the brief filed in this case by the appellants mer, 186 S. W. 409; Walker v. Haley, 181 be stricken out, and that appellants be reS. W. 559.

quired to file briefs with the matter objected If we are correct in holding that the plain to eliminated therefrom. tiffs in error on this phase of the case waiv- One phase of this case involves the quesed their right to complain of the action of tion as to the proper construction of article the trial court in peremptorily instructing 2238, Revised Statutes of 1911, and in the in favor of defendant in error American statement under the first proposition, on page Lumber Company for the portion of this 18 of appellants' brief, it is stated :

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

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"In our zeal to arrive at the true construc-, of the commissioners, together with the county tion which should be placed upon this statute, judge, and that the county judge, when present, and in order to do everything we possibly could shall be the presiding officer, and article 2238, to aid the court in determining it, we have sent providing "that any three members of said court out the following form letter to a number of the including the county judge" shall constitute a most reputable universities and colleges of the quorum for the transaction of any business exUnited States, asking for information about this cept that of levying a county tax, three memstatute.”

bers of the commissioners' court, one of whom Following this is a copy of the form letter must be the county judge, may constitute a

quorum, or in the absence of the county judge sent out by the attorneys of appellants, and the presence of all the commissioners is necesthen follows copies of numerous replies re sary to a quorum. ceived, covering in all some 25 pages, and [Ed. Note.-For other definitions, see Words this is the matter objected to. Of course and Phrases, First and Second Series, Quorum.] such matter is out of place in a statement | 2. STATUTES 22534-RE-ENACTMENT AFTER

JUDICIAL CONSTRUCTION. under a proposition, as it does not pertain to the facts shown in the record, but the point placed on a statute and the laws have been sub

Where a judicial construction has been urged is not this, but that it should not be sequently revised and the construed provision in the brief at all. Rule 36 (142 S. W. xiii) re-enacted without material change, it will be of the rules governing the briefing of cases intended that the same construction should be

conclusively inferred that the lawmaking body in the Courts of Civil Appeals, is as follows: placed on the language of the statute in the

“There should be annexed to each proposi- future. tion, with its statement, and at the end of it, a 3. COUNTIES O 213 - ACTIONS - CONDITIONS reference simply to the authorities reiled on, if PRECEDENT AUDIT BY COMMISSIONERS' any, in support of it, in the following order, to

COURT “NEGLECT OR REFUSAL TO AUDIT wit: The statutes and decisions of this State; CLAIM." the statutes and decisions of the United States, Where the commissioners' court of a county if they are applicable to the case; elementary has prevented action upon a claim against a authorities; other decisions in the American county by intentionally refusing to attend the and English courts. In citing decisions, those meetings so as to form a quorum, such conduct most nearly in point should be cited first, and constitutes a neglect or refusal to audit claims they should not, usually at least, be so numer- so as to authorize the bringing of suit within ous as to require a waste of time in their ex- Rev. St. 1911, art. 1366, providing that no counamination."

ty shall be sued unless the claim upon which Parties who have filed briefs may, upon such suit is founded shall have first been prethe submission of a case, present an argu- allowance and such court shall have neglected or

sented to the county commissioners' court for ment, either oral or written (rule 47 (142 S. refused to audit and allow the same. W. xv]), which must be confined to the dis- 4. MANDAMUS 3(1) OTHER ADEQUATE puted points presented by the propositions in REMEDY. the briefs (rule 48 (142 S. W. xv]).

Mandamus will not lie where the petitioners No doubt considerable liberality should have another plain and adequate remedy. prevail in permitting counsel, in briefs and Appeal from District Court, Hardin Counarguments, to cite and quote the opinions and ty; L. B. Hightower, Sr., Judge. expressions of others on principles and theo- Suit by Cobb & Gregory, a firm composed ries of law involved in a case, in what form of 0. E. Cobb and J. A. Gregory, against W. or wherever found; but we do not think it W. Dies and another. From judgment for proper to present before the court letters and defendants, plaintiff appeals. Affirmed. statements of outside persons, eminent and See, also, 203 S. W. 437. disinterested though they may be, which are Mantooth & Collins, of Lufkin, and Orgain, aimed at the particular case, and undertake Butler & Bolinger, of Beaumont, for appelto say how a statute under consideration lant. Leon Sonfield, of Beaumont, D. F. Sinshould be construed, or how the case should gleton, of Kountze, and J. L Manry, of Livbe decided. Even in the absence of any ex- ingston, for appellees. press rule, indicating what should be contained in briefs and arguments of counsel, CHILTON, Special Judge. The appellants, such a practice would seem not to be per- Cobb & Gregory, a firm composed of 0. E. missible.

Cobb and J. A. Gregory, instituted the suit The motion of appellees is therefore seeking a mandamus requiring W. W. Dies, granted.

county judge, and J. J. Bevil, county clerk, Thereafter the appeal was dismissed for fail of Hardin county, Tex., to execute and deliver ure to file briefs as directed. On February 6, certain warrants of Hardin county. The pe1918, motion of appellant to reinstate cause was titioners alleged, as a basis for this relief, granted.

in substance, that, on August 7, 1916, said

Hardin county being indebted to the petitionCOBB & GREGORY V. DIES, County ers on account of certain road work done and Judge, et al. (No. 217.)

performed in accordance with a contract be(Court of Civil Appeals of Texas. Beaumont. tween said county and petitioners, the acApril 18, 1918. Rehearing Denied

count and claim therefor was presented to the May 15, 1918.)

commissioners' court of said county, then 1. COUNTIES Ow52 - COUNTY COMMISSIONERS properly assembled in special session, with

-"QUORUM."

Under Rev. St. 1911, art. 2237, providing three commissioners present and attending that the commissioners' court shall be composed (but the county judge and one commissioner

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