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seems to us, is basically correct. It is partic- that the cases relied upon only concern matularly so in the light of the statutory defini- ters collateral to the main issue, one of which tion of theft, to constitute which there must expressly and the others inferentially disafconcur by competent evidence a fraudulent firmed the right to establish the very issue taking of corporeal personal property belong- upon which the case turns by such evidence. ing to another from his possession or that of The cases cited below fully sustain the propsome one holding same for him, without the osition that statements of the character unconsent of either, with intent both to deprive der discussion in the present case are inadthe owner of the value therof and to appro- missible when the purpose is to establish the priate same to the use and benent of the per- issue upon which the case turns. Half v. son taking same. Article 1329, P. C. Under Curtis, 68 Tex. 640, 5 S. W. 452; Gilbert v. such requirements it is difficult to argue that Odum, 69 Tex. 670, 7 S. W. 510; Schmick v. the statement of the witness was improperly | Noll, 72 Tex. 1, 8 S. W. 83; Cullers v. Gray, excluded. It is argued by counsel, however, 57 S. W. 305; Rea v. P. E. Schow & Bros., 42 that the statement of the witness was admis- Tex. Civ. App. 600, 93 S. W. 706; Bank v. sible under the holdings in O'Farrell v. 0'- Ricketts, 152 S. W. 646; Magee v. Paul, 159 Farrell, 56 Tex. Civ. App. 51, 119 S. W. 903; S. W. 325; Bank v. Cooper, 179 S. W. 295. Schauer v. Von Schauer, 138 S. W. 145, and

[6] Sidney Chubb, having qualified in that Campbell v. Peacock, 176 S. W. 777. The gen- respect, testified by deposition that plaintiff eral rule upon which the cases cited proceed, in error insured an 'automobile for Everett S. and the rule to be applied to the issue here Jones of the same make, model, engine, and presented, is that the conclusion, inference, motor number as the one in controversy, or judgment of the witness is accepted “when whereupon he was asked: it relates to a fact which is collateral or rel

“ 'Did you have any further transaction with atively unimportant, and is rejected where Everett S. Jones about this autombile? If so the fact sought to be established is either in state the nature of the same,' to which he reissue or so material thereto as to involve the plied, “Yes.' In March, 1913, the Federal In

surance substantial rights of the parties.” 27 Cyc. 27. Everett s. Jones for total loss by theft of the

ompany, of which I am treasurer, paid The case first cited was a proceeding for di- said car the sum of $1,700.” vorce, and the cancellation of a deed taken in

On objection the statement that the loss the name of the husband, on the ground that the land was purchased with the separate

was paid because of "theft" was rejected befunds of his wife. On trial it developed that cause the conclusion of the witness. It is the land was paid for in part with proceeds contended that the statement of the witness derived from notes. The wife was permitted was admissible as a circumstance tending to to say she "owned” the notes, which was ob- show theft. For reasons already stated we jected to on the ground that the statement conclude that the opinion of the witness, was the conclusion of the witness. In review- gathered from facts out of which he has reaing the objection and holding the evidence soned his opinion, has no more force to cir

cumstantially prove theft than it has to prove proper the court say:

"Ownership of property is a fact to which it directly. The difficulty lies in the fact a witness may always testify, except when the that the witness is not detailing facts and whole issue of the case turns upon it.”

circumstances from which the jury might inWhile it cannot be said that the ownership fer or reason the commission of a theft. On of the notes, which in part paid for the land | the contrary, he is stating the inferences he in controversy, was unimportant, it was nev- has deduced from the facts. The payment of ertheless a collateral issue such as is contem- the money by the insurance company, it may plated by the rule, and one upon which the correctly be said, evidences the fact that the case did not turn. In the second case cited plaintiff in error believed the car had been the witness was permitted to say that his stolen. The opinion of the plaintiff in error father gave him the note sued on, and that that the car was stolen would not, however, he was the owner thereof. There also the be admissible to prove in this proceeding that ownership of the note was a collateral issue, it in fact was stolen, since in the final analythe real issue being the defendant's liability sis it would be to deduce from one inference on the note. Without any discussion of the another, and hence too remote to have probarule the court say the evidence was compe- tive force or value. Crosby v. Ardoin, 145 S. tent, adding that, if mistaken in that respect, W. 709. sufficient was in the record to establish that Plaintiff in error tendered in evidence the fact. In the third case cited one property affidavit of Everett S. Jones, reciting, in subowner sought to enjoin another from leasing stance, that he purchased an automobile of or using property adjacent to the property of the make, model, and engine and motor numplaintiff for a bawdy house. Ownership of ber similar with the one in controversy, the property was proven by showing that de- which was insured by plaintiff in error, and fendant rendered same for taxation, collected which was subsequently stolen, and on acthe rents thereon, and admitted she owned it. count of which plaintiff in error paid as for There, also, ownership was obviously both a' a total loss, and by reason of which plaintiff collateral and relatively unimportant issue, in error was the owner of said car. The af and is within the rule cited. It thus appears fidavit was on objection excluded. The proposition is that it was admissible as a bill of about 12,000 acres of land, and the other sale to show plaintiff in error's ownership of about 18,000 acres; that in 1910 appellant the car. While we think the affidavit was in- purchased from appellee the Espejo ranch; admissible for reasons already fully stated, that at the time appellant bought the Espejo it was further objectionable because it in no ranch from appellee there was a well-defined respect tended to establish the necessary and roadway extending from the western end of controlling issue of theft. Conceding the af- the Espejo in a northeasterly direction, one fidavit to constitute an informal bill of sale, end of which was on the Santa Rosa ranch; it would be inadmissible to establish theft that, when the Espejo ranch was the property for the reasons already stated.

of appellee, this obvious, open, and contin[7] Finally it is contended that the court uous roadway over the Santa Rosa was made erred is peremptorily directing verdict for by appellee a servitude on the Santa Rosa defendant in error. The only contention pre- for the benefit of the Espejo. It was alleged sented on that issue not discussed in this that this servitude was one of the appurteopinion is, in substance, that plaintiff in error nances of the Espejo lands, included in the was entitled to recover the automobile on the conveyance from appellee. It was alleged showing made, in the absence of any evidence that the open roadway over the Santa Rosa tending to show that defendant in error was was granted by implication, because it was the rightful owner. Defendant in error was a way of necessity, that appellee had requestin possession of the automobile by purchase ed permision from appellant in 1913 to change from Dees, and it, of course, was the duty of the location of the roadway over the Santa plaintiff in error to prove a better title than Rosa, which request appellant had granted, the prima facie title of defendant in error. and that therefore appellee was estopped

Finding no reversible error, the judgment from obstructing the roadway; again, it was is affirmed.

alleged that persons attending the public school and church at Espejo had customarily

used this open and obvious roadway for so ESPEJO LAND & IRRIGATION CO. v.

many years that such persons, as well as URBAHN. (No. 6031.)

appellant, had acquired the right to the (Court of Civil Appeals of Texas. San Antonio. use of the roadway by prescription; and, May 15, 1918.)

finally, it was alleged that the roadway had 1. EASEMENTS 36(3)–ROADWAYS-PERMIS- been dedicated to the public use and acceptSIVE USE-EVIDENCE.

ed by the county as a public road. The Evidence held to show that roadway over dominant and servient lands were described, defendant's land was used with his permission, and that use was not exclusive, nor adverse, and the location of the roadway before and nor reasonably necessary.

after changes in its location were indicated, 2. DEDICATION Om 44 HIGHWAYS Om17 EVIDENCE.

by a map made a part of the petition. This Evidence held insufficient to show that al- map disclosed that the Espejo and Santa leged road was a public way, or was ever dedi. Rosa ranch had no common boundary, but cated or accepted by the county.

that they were separated by the width of Appeal from District Court, Webb County; the Dario Sanchez land, which was 1,000 J. F. Mullally, Judge.

varas wide. This map further discloses that Suit by the Espejo Land & Irrigation Com- the same public road to Laredo, into which pany against Albert Urbahn. Injunction re- the contested roadway leads, also runs fused, and plaintiff appeals. Affirmed. through the Espejo ranch, and forms the

Barrett, Eskridge & Barrett, of San An- eastern boundary of the western portion of tonio, for appellant. Hicks, Hicks, Dickson the Espejo, which portion is claimed to have

. & Bobbitt and S. T. Phelps, all of San An- the servitude of the roadway over the Santa

Rosa. tonio, and John A. Valls, of Laredo, for appellee.

Appellee admitted that there was a road

way as described by appellant, but alleged SWEARINGEN, J. By this suit the Espe- that it was made and maintained by him jo Land & Irrigation Company, appellant, for his own convenience in passing from one sought by injunction to restrain Albert Ur- of his properties to the other; that appelbahn, the appellee, from obstructing a road-lant's use of the roadway was by his perway, hereinafter called the "contested road,” mission, requested and granted; that this which extended in a southwesterly direction permission was conditioned upon appellant's for a mile or more from the Laredo public road keeping the gates of ingress and egress closed, to the land belonging to Dario Sanchez over but this condition had never been complied appellee's Santa Rosa ranch, of about 12,000 with by appellant; that the public Laredo

Upon the trial the court, without a road was as conveniently reached over appeljury, refused the injunction.

lant's own land as by the roadway over the The first amended petition alleges that ap- lands of appellee and Dario Sanchez, pellee was the owner of both the Santa Rosa The undisputed facts are that appellee and the Espejo ranches, the one containing owned both ranches, and, while the owner

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of both, in 1910 conveyed the Espejo ranch 94 Am. Dec. 260; Gilder v. City of Brenham, to appellant, retaining the Santa Rosa. Dur 67 Tex. 345, 3 S. W. 309; Jones on Easements ing the period of unity of ownership, there (1898) § 317, and sections 25, 257, and 262. was an open, obvious, used and continuous There was no express nor implied grant, roadway, located about a mile east of the no way of necessity, none by prescription, Rio Grande river and extending from Zapata nor by estoppel. county, thence in a northerly course about The judgment of the trial court is affirmed. parallel with the meanders of the river, crossing in its course the western end of the lands of the Espejo ranch, and the lands of Dario

SUNSET WOOD CO. v. KELLY et al. Sanchez and of the Santa Rosa, finally ter

(No. 6021.) minating in the Laredo road, which is a public road of the first class. At the time of the Court of Civil Appeals of Texas. San Antonio.

May 1, 1918. Rehearing Denied

1 purchase by appellant there was an obvious

May 29, 1918.) roadway, which we shall denominate the

GARNISHMENT Om88 AFFIDAVIT GAR"tank road," about midway between and

NISHEE'S RESIDENCE-PARTNERSHIP. parallel with the north and south boundary The statute requiring affidavit for garnishlines of the Espejo, extending from the ment to state the residence of garnishee is

substantially complied with by allegation that road last above described, a distance of garnishees K. and S. are engaged in business untwo miles, to the same Laredo public der the name of Army Bank, in B. county, the road above mentioned. This Laredo road di- presumption being that members of a partnervides the Espejo ranch into two tracts, and ship reside in the county where, as a partner

ship, they are engaged in business. is the eastern boundary of the river end of

Appeal from Bexar County Court for Civil the Espejo, which contains 3,830 acres of

Cases; John H. Clark, Judge. land; and the Laredo road is, of course, the

Garnishment by the Sunset Wood Company western boundary of eastern parcel of the against E. A. Kelly and another. From an Espejo. The tank road is as passable a adverse judgment, plaintiff appeals. Reversroad and in every way as convenient a road ed and remanded. for the Espejo ranch to Laredo as the contested road, except that it makes the route

J. D. Dodson, of San Antonio, for appellant. from the improvements on the Espejo to Leonard Brown, of San Antonio, for ap

pellees. Laredo approximately a mile longer. In 1913 appellee had that portion of the

FLY, C. J. This is an appeal from a judgcontested road which was on the Santa Rosa ment quashing a writ of garnishment sued discontinued, but made a road for his con-lout by appellant against E. A. Kelly and F. G. venience about a half mile further east and Saunders, doing business under the name of in a parallel course with the contested road. the Army Bank of Ft. Sam Houston. It was Permission to use this new.road was express- alleged that appellant had sued E. Koerner ly given to the appellant. Both the Santa on a debt due by him to appellant, and that Rosa and the Espejo were inclosed with the same was pending in the county court in fences, with gates where the old contested which the application for garnishment was road and the new one crossed the fences. made. Koerner intervened in the suit and The Dario Sanchez 2,500 acres, lying between filed a motion to quash, because the affidavit the Santa Rosa and the Espejo, over which for garnishment failed to state the residence the contested road ran for more than a half of the garnishee. It was alleged in the petimile, was not inclosed with fences at the tion that: time appellant bought the Espejo.

"E. A. Kelly and F. G. Saunders, engaged in [1, 2] In deference to the judgment of the business under the name of Army Bank of Ft. trial court, we find that the weight of the debted to the defendant, or have in their pos

Sam Houston, in Bexar county, Texas, are inevidence establishes as a fact that appellant session effects belonging to the defendant, held used the passageway over the Santa Rosa in the name of E. Koerner, or in the name

Army Building Company.' by permission of appellee, and that the use

We are of the opinion that the allegation was not exclusive nor adverse, and that the that Kelly and Saunders were engaged in use of the Santa Rosa for a roadway was business under the name of the Army Bank of not reasonably necessary. We further find

Ft. Sam Houston, in Bexar county, Texas, as a fact that the said contested road never was an allegation that they resided in Bexar became a public way, and was never

county. If they are engaged in business as a dedicated nor accepted by the county. How- firm in Bexar county, the cogent presumption ell v. Estes, 71 Tex. 690, 12 S. W. 62; Wil- would be that they resided in the same county liams v. Kuykendall, 151 S. W. 629; Callan v. in which they were engaged in business. The Walters, 190 S. W. 832; Bowington v. Wil-writ was issued to Bexar county, and was liams, 166 S. W. 719; Sassman v. Collins, served on Kelly and Saunders in that county, 53 Tex. Civ. App. 71, 115 S. W. 337; Hall and, they made no answer, as appears from v. City of Austin, 20 Tex. Civ. App. 63, the bill of exceptions agreed to by counsel 48 S. W. 53; Alley v. Carleton, 29 Tex. 74,/ for appellees and approved by the court. The

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

provision of the statute as to residence, re- "Plaintiff would represent and show to the quiring that it be named in the affidavit, was court that it has purchased from various and to guide the issuance of the writ and to fix sundry parties title to a portion of the north the venue. This is necessary, because a judg- ed interest in the south Hooe survey, and owns

and middle Hooe surveys, and also an undividment by default may be taken against a gar- the same by fee-simple title, which title was nishee if he resides in the county where the acquired by plaintiff, and is in addition to the

title hereinafter mentioned." proceeding is pending; but, if he resides in another county, a commission must be issued

And further: to take his answers, if he fails to make an inbefore set forth and conveyances herein before

"That, under and by virtue of the facts hereappearance. Articles 282–292, Rev. Stats. mentioned, this plaintiff acquired and now owns We think there was a substantial compliance an undivided interest in, and became a joint with the statute in the statement as to res- owner with said defendants in and

to, the idence.

north and south Hooe surveys." Courts have been very strict in requiring

And further: compliance with the statute as to the terms "Plaintiff would further represent and show of the affidavit for garnishment, but we have to the court that it has entered upon said north

and south Hooe surveys for the purpose of seen no case going as far as was gone in this taking possession of that part thereof describcase. In the case of Dickerson v. Grocery ed in the deed from W. D. Gordon et al. to Co., 147 S. W. 695, it was alleged that the this plaintiff, and that, notwithstanding it and garnishee, an insurance company, had agents interest therein, and are tenants in common

those under whom it claims own an undivided in a certain county, but it was not stated with defendants, the defendants herein and that they resided therein, and the court held: each of them are now threatening to eject that the agents of the garnishee named therein ed for, said defendants will eject it from said “It is not alleged in terms in the application plaintiff from said land, and plaintiff fears

that, unless granted the relief hereinafter prayreside in Henderson county; but we think the land and refuse to permit

it to remain in poslanguage used is equivalent to such an allega- session of any part thereof;

. tion, and substantially meets the requirements fendants are now claiming that they are en

that said "deof the statute."

titled to the exclusive possession of the north. To the same effect is Harris v. Cozart, 178 Hooe survey and the south half of the south

Hooe survey, and are entitled to hold the same S. W. 733.

as against this plaintiff; that the portions of It may be, as held in the case of Freeman said surveys taken possession of and now in v. Rice & Irr. Co., 188 S. W. 444, that an al- the possession of plaintiff are not of any greatlegation that a corporation is doing business er value than the remaining portions of said

land, and the parties under whom this plainin a certain county is not equivalent to an tiff claims are entitled to a much larger part allegation that it resided there, but that is of said surveys than that conveyed to this different from an allegation that a partner- plaintiff, and that has been taken possession ship, naming its members, is engaged in busi- of by it, which it is using for the purpose of

constructing its tram road thereon.' ness in a certain place, which difference is

While the court is of the opinion that most. recognized in the case cited. The judgment is reversed, and the cause in the opinion as additional allegations in ap

of what the motion requests us to incorporate remanded.

pellee's petition is already reflected in the original opinion, still we have no hesitancy

in granting the motion for the additional findKIRBY LUMBER CO. et al. v. BRADFORD ings above specified, and the same is granted,

HICKS LUMBER CO. (No. 399.) and it is here now stated that the above alle(Court of Civil Appeals of Texas. Beaumont. gations were contained in appellee's petition, May 20, 1918.)

upon which the judge of the Seventy-Fifth Appeal from District Court, Tyler County; judicial district acted in granting the tempo

rary injunction in this case, and it is ordered J. Llewellyn, Judge, On motion for supplementary findings. that these supplemental findings be filed as a

part of, and to be considered with, the origMotion granted.

inal opinion of the court in this case. For former opinion, see 203 S. W. 418.

Andrews, Streetman, Burns & Logue and Kennerly, Williams, Lee & Hill, all of Hous

BOWMAN v. BAILEY et al. (No. 7964.) ton, for appellants. , Fisher, Campbell &

(Court of Civil Appeals of Texas. Dallas. Amerman, of Houston, Greer & Nall, of Beau

May 4, 1918. Rehearing Denied mont, and Coleman & Lowe, of Woodville,

June 1, 1918.) for appellee.

1. USURY Omm 100(2) - PAYMENTS APPLICATION.

Where notes, on their face, do not show HIGHTOWER, C. J. Subsequent to the ac- usury, and there is nothing to show that any tion of the court reversing the judgment in payment was made on usurious interest, the this case, appellee filed a motion requesting payments will be applied to the principal, and

not to the usury. this court to let its opinion show that appellee's petition contained the following allega- 2. USURY Cm139 — PENALTY – NECESSITY OF

PAYMENT OF INTEREST. tions, in addition to those stated in the orig- Where the amount received by borrower for inal opinion, to wit:

notes not showing usury on their face had not

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been paid in full, and there was nothing to G. C. Wood borrowed from N. E. Harper on show that payments made were made on usuri- September 29, 1915, $100, and executed his ous interest, there could be no recovery

of double the amount of usurious interest paid, promissory note to said Harper for $130, and as provided by Rev. St. 1911, art. 4982.

10 per cent. interest, payable in twelve equal 3. USURY 129 - CLAIM FOR PENALTY — As-weekly installments, and to secure same exeOm

SIGNMENT.

cuted a mortgage on a Ford automobile. SubWhere, at time claim for usury was assign- sequently, October 22, 1915, Wood borrowed ed, the maker assignor had not paid any amount as interest on the notes, and the amount $37.30, and executed his note for $47.30, sepaid did not exceed the amount received from cured by the same mortgage on the Ford car. payee, 'lender, the assignment amounted to The $130 note bears this indorsement: nothing, since no claim for usury existed.

“Without recourse. N. E. Harper'—and cred4. USURY Own 130 - PARTIES ENTITLED TO its aggregating $52.55. The evidence shows PLEAD-PURCHASERS.

Plaintiff, who purchased the automobile that $90 was paid on said notes, but there is mortgaged to secure notes and assumed the no evidence stating that said amount was notes, is in no position to plead usury, since paid as interest. Then Wood sold the autohis liability arises from assumption of notes. mobile to Bowman, and also assigned to him

his (Wood's) claim for usury paid, and BowError from Dallas County Court; T. A. man assumed the payment of the two said Work, Judge.

notes and the mortgage securing the same. Action by Charles E. Bowman against J. It is assigned that the court erred in giving a W. Bailey and others. Directed verdict for peremptory charge to find a verdict in favor defendants, and plaintiff brings error. Judg- of defendants in error. ment affirmed.

The proposition is urged that: Geo. Clifton Edwards, J. L. Goggans, and "Plaintiff, having introduced evidence to supAlbert Walker, all of Dallas, for plaintiff in port a verdict in his favor, was entitled to have error. Israel Dreeben, of Dallas, for defend the issues submitted to the jury, no matter how

strong the contradictory evidence might be. In ants in error.

determining this question the evidence must be

considered in its most favorable light for plainRAINEY, C. J. We adopt the statement of tiff in error, disregarding conflicts and contrathe case from defendants in error's brief as which was a question for the jury."

dictions; they raised the issue of credibility, follows:

[1] The evidence fails to show that any "Plaintiff in error, plaintiff below, on the 19th day of February, 1916, filed this suit in payment was made on usurious interest. The the county court of Dallas county, at law, notes on their face do not show usury. At the Dallas county, Tex. He sues, for himself and time the notes were assigned to plaintiff in as the assignee and legal representative of G. C. Wood, the defendants in error, J. W. Bailey: error there had not been paid on the notes Charles Mott, N. E. Harper, and 'B. L. Walkup, more than $90, and the evidence shows that both as individuals and as a partnership under the borrower had received $137.50 in cash, the name Dallas Loan Company, for twice $70.- leaving due on the notes $130, and no witness 15, alleged to have been paid defendants in error as usurious interest by G. C. Wood, and which testified as to what was paid as interest. claim for penalty amounting to $140.30 is al Payments thus made will be applied by the leged to have been transferred by said Wood law to the principal, and not to usury, if to plaintiff in error, and for $140, double the there be any in the contract. amount of usurious interest plaintiff in error alleges he personally paid defendants in error.

[2] Under the facts as established the Plaintiff in error asks for cancellation of cer- plaintiff in error was not entitled to recover tain notes, and a chattel mortgage against a double the amount paid as usury, but only Ford car, and for judgment for $280.30, penalty entitled to have said amount so paid credited for the payment of usurious interest. By trial amendment, filed October 10, 1916, plaintiff in on the principal of the note, and the court error pleads, in lieu of written assignment alleg- was justified in instructing the jury to find ed in his original petition, an oral assignment a verdict for defendants in error against of date February 10, 1916, and a written assignment, the same as set up in his original plaintiff in error. On the question of usury, petition. Defendants in error answered the article 4982 provides, in effect, that when original petition March 6, 1916, by general usurious interest is received and collected demurrer and general denial, by amended an-double that amount can be recovered as a swer, setting up various exceptions, general denial, plea of no partnership, and cross-action penalty, but as none was shown to have been on the notes sought to be canceled by plaintiff received and collected, the plaintiff in error in error, for the balance due; also sworn denial was not entitled to recover. Clayton v. Inof partnership. To plaintiff in error's trial amendment, defendants in error filed general and gram, 107 S. W. 880; Rosetti v. Lozano, 96 special exceptions, general denial, and that the Tex. 57, 70 S. W. 204; Long v. Moore, 59 Tex. transfer of cause of action was fraudulent and Civ, App. 579, 126 S. W. 345; Allen v. Bank, without consideration. The case was tried 175 S. W. 485; Stewart v. Briggs, 190 S. W. October 11, 1916, before a jury. After all the

221. evidence was in, the court, at the request of defendants in error, peremptorily instructed the [3] At the time the claim for usury was asjury for defendants in error as per charge signed by Wood he had not paid any amount requested, and the jury returned a verdict ac

as interest, and the amount paid did not excordingly for defendants in error for the sum

ceed the amount received by Wood in cash of $110, etc., and foreclosure of mortgage on the Ford car."

from Bailey, and therefore no claim for usu

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

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