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used under like circumstances. And, where, No special exception was addressed to the a person is on the premises of a railway pleading on account of the absence of the company under either of the conditions as specific allegation referred to. The averment last above set out, it becomes the duty of of negligent injury, with knowledge of the such railway company to use such care to dangerous position and the presence of the avoid injury to such person as a man of ordi- appellee, an immature child of 10 years, as nary prudence would have used under like against a general demurrer, at least, covered circumstances, and a failure so to do would the issue of incapacity submitted by the be negligence on the part of said railway court. Besides, as already indicated, the subcompany.” The second assignment urges er- mission of this issue, conceding knowledge ror in this instruction, “in that it placed the by the appellant of the boy's presence and duty of anticipating danger to Carl Brown of his dangerous position, was unnecessary, from the mere fact that his presence was and but imposed upon the plaintiff the burknown to the defendant's agents.” This den of proving an additional fact, not essencharge requires the concurrence of two facts tial in this connection to the maintenance of or conditions to constitute negligence: (1) his case. Knowledge of the presence of the appellee; The sixth assignment complains of the re(2) knowledge of his incapacity, or the power fusal of the following special instruction: of ascertaining that fact by the use of ordi- "If the jury believe that defendant had exnary care. The second element was unnec- ercised proper care to keep boys out of its essary, for if his mere presence in a danger- yards, and that plaintiff was there without ous position, without reference to his inca- any permission or consent of it, and that its pacity, was known to the appellant, it was servants did not see or know of his danger, its duty, after discovering the danger, to use and had no reason, in the exercise of ordiordinary care to avoid injuring him. Rail- nary care, to suppose that he was in danger, way Co. v. Robinson, 4 Tex. Civ. App. 125, 23 under all the circumstances, then in such S. W. 433, and the numerous authorities there event you will find for the defendant." It cited. The appellant is in no attitude to com- is believed that the propositions incorporated plain of the instruction.

in this requested charge were substantially It is urged in the third, fourth, and eighth included in the second paragraph of the assignments of error that the second clause court's charge. of the charge above set out was further er- The objection to the admission in evidence roneous in that there was no evidence to the of the municipal ordinance requiring the ringeffect that Carl Brown's presence was known ing of a bell in the running of locomotives to the defendant's agents, or that the agents within the corporate limits of the city was knew that he was in a dangerous position, properly overruled. We have heretofore held or that any one knew of his incapacity to that the enactment of this ordinance was a take care of himself. We do not interpret the valid exercise of municipal power, under the testimony in accordance with the contention terms of the charter. Railway Co. v. Nelson of these assignments. The evidence shows, (Tex. Civ. App.) 29 S. W. 80 (in which a writ or tends to show, that the appellee was a of error was refused.) Nor are we prepared to child 10 years old, small in stature; that he hold that the court should have excluded this was standing, in a position quite upright, be- ordinance as unreasonable in its provisions, tween two flat coal cars, his shoulders above or inapplicable to the facts of this case. In them; that several boys were playing on the terms the ordinance requires that, where a top and side of these coal cars, the inter- locomotive is operated within the corporate vening cars being flat; that the appellant's limits of Ft. Worth, the bell attached thereforeman, who was directing the movement to shall be rung before starting, and shall of the engine, was 40 yards away, and saw be kept ringing all the time the locomotive the boys; and that they were in plain view or engine shall be in motion. If the ordiof the engineer. A proposition under these nance be inapplicable, it must be because, assignments further assails the instruction under the evidence, it is unreasonable; and, on the ground that there was no allegation if unreasonable, it seems that it should be in the petition that the operatives of the thus assailed by proper averment and proof. train knew of the incapacity of the appellee Blueborn v. Railway Co., 25 S. W. 944; City to take care of himself. Among numerous of Austin v. Austin City Cemetery Ass'n, 87 other averments, the petition describes the Tex. 330, 28 S. W. 528. The ordinance in plaintiff as an immature child, of 10 years of question was declared upon by the plaintiff age, and in effect charges that the defend- as the basis for his cause of action, and the ant's agents in charge of the switch engine defendant failed to allege its unreasonableand yards saw the plaintiff, and the danger ness or its inapplicability. Besides, it should to which he was exposed by reason of their be remembered that the defendant's emnegligence, in ample time to have avoided ployés testified, in support of the plaintiff's the infliction on him of any injury, and that, allegations, that these premises were, withthus seeing and apprehending his danger, out protest or objection, much frequented by they negligently forced a number of detached the public, and that the yards, situated in a cars against the car on which the plaintiff thickly-settled portion of the city, were was standing, and seriously injured him. traversed by people at any and all times and places. Under such circumstances, we conclusions of fact, appearing to have been should besitate to hold that the regulations filed during the term at which the cause was prescribed by the ordinance were either un- | tried; also, a number of bills of exceptions reasonable or inapplicable. Conceding the relating to testimony, which also appear from validity of the ordinance, which constituted the record to have been filed during the term. a law within the limits of the city, its viola- So far as the record shows, there is no reation by the defendant, attended with injury son why this court should not consider both proximately resulting, would, under the doc- the conclusions and the bills of exceptions. trine established in this state, constitute neg- Appellant assigns as error that the bills and ligence per se, and it would become the duty the conclusions were not in fact filed by the of the court to so charge. Railway Co. V. judge until nine days after adjournment, alNixon, 52 Tex. 19; Railway Co. v. Moore, though appellant had caused the bills to be 69 Tex. 160, 6 S. W. 631; Railway Co. v. Por- presented to the judge during the term, and fert, 72 Tex. 351, 10 S. W. 207; Bish. Non- | 10 days before adjournment, and also had, cont. Law, $ 445.

before adjournment, in writing, requested The character of the injury, as indicated by him to file conclusions of fact and law, and the testimony of the plaintiff and of his at claims that his rights have been violated by tending physician, precludes us from hold- said proceeding. The matter being assigned ing the verdict of $1,500 excessive. We fail as error, we are of opinion that it is our duty, to find merit in any of the assignments pre- when it is called to our attention that the recsented in the able brief of appellant's coun- ord has been made to show conclusions of sel, and consequently order an affirmance of law and fact and bills of exceptions to have the judgment.

been filed during the term, when such was not the case, and thereby this court is improperly asked to exercise its jurisdiction to

revise the judgment, to determine the facts, BRADFORD et al. v. KNOWLES et al.1

and, if substantiated, to decline to recognize (Court of Civil Appeals of Texas. Nov. 13, 1895.)

the conclusions; and where one who has

sought to perfect his appeal, and has failed APPEAL-REQUISITES-STATEMENT OF FACTS-BILL OF EXCEPTIONS--DECISION.

to do so, through the act of the court, with1. The court of civil appeals may ascertain

out any fault of his own, this court should by affidavit or otherwise any fact necessary to

afford relief, by reversing and remanding the proper exercise of its jurisdiction.

the cause for another trial. Hilburn v. Pres2. Section 24 of the act organizing the court of civil appeals (Laws 1892, p. 29), in permitting

ton (recently decided by this court) 32 S. W. that court to recognize bills of exceptions, un- 702; Collins v. Kay, 69 Tex. 365, 6 S. W. 313; der certain circumstances, although not signed Railway Co. v. Underwood, 67 Tex. 590, 4

S. W. 216. The statute is that this court ognition of conclusions of fact not filed in time. 3. Where the court below adjourned one

may ascertain by affidavit or otherwise any week before the time fixed by law, and the fact necessary to the proper exercise of its judge, having had submitted to him appellant's jurisdiction. Appellant has accordingly made. bills of exceptions, took such bills home with him, and nine days afterwards returned them,

a motion to have the judgment reversed and with his conclusions of law and fact, to the the cause remanded, based on the above asclerk, directing him to file them as of the last signment. It is shown conclusively that the day of the term, the fact that on the day of adjournment appellant's counsel knew that the

court adjourned a week before the time fixed judge was to adjourn court that day, and in

by law; that the bills of exceptions were pretended to file the bill and conclusions after- sented and the conclusions requested before wards, as was done, and that notwithstanding

adjournment; that the judge adjourned this he failed to take advantage of the irregularity by bill of exceptions filed during the term,

court, and took the bills home with him, and prevents his complaining that the judge failed nine days afterwards returned the bills (reto file conclusions during the term, and securing | fusing one), and also his conclusions of law a reversal of the judgment. 4. The fact that the record is made to indi

and fact, to the clerk, directing him to file cate that the statement of facts was prepared

them as of the last day of the term, which and filed in time does not preclude inquiry into was done. It is a proper inquiry in this conthe question.

nection, from these affidavits, whether or not Appeal from district court, Guadalupe coun- the appellant has placed himself in a position ty; Thomas H. Spooner, Judge.

where he can complain of the failure of the Action between M. G. Bradford and others court to file conclusions during the term. It and Thomas J. Knowles and others, from the has been repeatedly held that a party cannot judgment in which Bradford and others ap- complain of such failure, except upon bill of peal. Affirmed.

exceptions thereto, which, like other bills, W. M. Rust and W. E. Goodrich, for appel- must necessarily be filed during the term. lants. John Ireland, W. R. Neal, and Mc

We are satisfied from the affidavits before us Neal, Harwood & Walsh, for appellees.

that appellant's counsel was informed on the

day of adjournment that the judge was to JAMES, C. J. There is no statement of

adjourn the court that day, and intended to. facts in the record. It contains, however,

file the bills and the conclusions afterwards,

as was done; and counsel had the opportu1 Rehearing denied.

nity, if he had desired to do so, to have taken, a bill of exception to the failure or refusal. | pellants to appellee upon the following draft: Had this been done, appellant would have "$665.30. Hico, Texas, June 27th, 1893. At been entitled to a reversal of the judgment. | sight, pay to the order of First National He has therefore placed himself in a position Bank, Hico, six hundred and sixty-five dolnot to be able to complain of the failure to lars and 30 cents, value received, and charge file conclusions, and he took no steps to ob- the same to our account, and returnable in tain a statement of facts. The case stands Galveston. B/L attached, 32 bags wool. W. precisely as if he had failed to ask for con- W. Floyd. To Lammers & Flint, Galveston, clusions. Under these circumstances, the Texas." The decision depends upon the quesbills of exceptions, had they been filed dur- tion whether or not the draft shows upon its ing the term, could not possibly have been of face a contract to be performed in Galveston any benefit to him. Railway Co. v. Lochlin, county, and we are of the opinion that it 87 Tex. 467, 29 S. W. 469. This leads us to does. There is a request to pay the money conclude that a case is not presented for a to the payee, to charge it to the account of reversal.

the drawer, and to this is added the language, We are of opinion that we should not rec- "returnable in Galveston." The obligation ognize the conclusions of fact. The statute, which, without any promise, the law implies although it does not expressly so state, con- from such an instrument, is that the drawer templates that they should be filed during the will pay back or return to the drawee the term. Maverick v. Burney (Tex. Civ. App.) sum advanced to pay it; and when the lan30 S. W. 566. The decisions of the supreme guage is used, "returnable in Galveston,' court which hold that a failure to file them this, we think, is clearly equivalent to an uncannot be taken advantage of, except by a dertaking that the repayment or return of the bill of exception (which can be filed only dur- money which the party is obligated to make ing the term), clearly indicate that such is the will be made in Galveston. We can see no meaning of the statute. Landa v. Heermann, other meaning which could be given to such 85 Tex. 1, 19 S. W. 885; Cleveland v. Sims, words in such an instrument. There is no state69 Tex. 153, 6 S. W. 634, and case cited. Un- ment of facts or bill of exceptions in the record; der section 24 of the act organizing these and if, upon any theory admissible under courts (Laws 1892, p. 29), we may recognize the pleadings, a judgment dismissing the suit bills of exceptions, under certain circumstan- upon the plea of privilege could be sustained, ces, although not signed by the judge, but we would feel obliged to affirm it. But there this has no reference to conclusions of fact. is no denial in the answer that the defendant It is certainly not a proper exercise of our signed the instrument sued on, and as, upon jurisdiction to dispose of an appeal on a its face, it appears that the undertaking was statement of facts filed in contravention of to be performed in Galveston, we think the law. The fact that the record is made to in- suit could be maintained here, and that the dicate that it was prepared and filed in time plea to the venue was not applicable to the does not preclude inquiry into the question. case. Reversed and remanded. What is not in law a statement can be ascertained to be such in this court, and will be treated accordingly. The judgment is affirmed.

JOHNSON v. CITY COUNCIL OF GALVES

TON. (Court of Civil Appeals of Texas. Nov. 14,

1895.) LAMMERS et al. v. FLOYD.

MALCONDUCT IN OFFICE-WHAT CONSTITUTES-IL(Court of Civil Appeals of Texas. Nov. 14,

LEGAL REMOVAL FROM OFFICE-
1895.)

REMEDY-MANDAMUS.
ACTION ON DRAFT-VENUE.

1. The commission of an assault by the re

corder of the city of Galveston, by striking a An action against the drawer on a draft

person with a pistol, is not malconduct in office, expressly made "returnable in Galveston," in

within the meaning of the charter of such city the county of Galveston, was properly brought

providing that the city council may remove any in such county, though defendant resided in an

officer for malconduct in office. other county.

2. The charter of the city of Galveston Error from Galveston county court; S. S. authorizes the city council to remove any officer Hanscom, Judge.

for malconduct in office. Held that, where such

council removed the city recorder for an act Action by Lammers & Flint against W. W.

which did not constitute malconduct in office, Floyd. From a judgment of dismissal, plain- mandamus was the proper remedy. tiffs bring error. Reversed.

Appeal from district court, Galveston counW. B. Denson, for plaintiffs in error. S. H. ty; William H. Stewart, Judge. Lumpkin, for defendant in error.

Petition by Marsene Johnson for writ of

mandamus to compel the mayor and alderWILLIAMS, J. This is an appeal from a men, composing the city council

, of the city judgment dismissing appellants' suit upon ap- of Galveston, to restore the petitioner to pellee's plea of privilege to be sued in Bosque the office of recorder of such city, from county, where he resided. The suit was to which he alleged he had been illegally oustrecover a balance of money advanced by ap- ed by the city council. From a judgment

denying the writ, petitioner appeals. Reversed.

Hume & Kleberg and Byron Johnson, for appellant. Thos. J. Ballinger, for appellees.

GARRETT, C. J. The appellant, Marsene Johnson, brought this action in the district court of Galveston county against the mayor and aldermen of the city of Galveston for a writ of mandamus to restore him to the office of recorder of the city of Galveston, from which he alleged he bad been illegally ousted by the city council. The case has been improperly entitled and docketed as “The State of Texas ex rel. Marsene Johnson vs. The Mayor and City Council of the City of Galveston.” The state is not a party to the suit, which is an application by the appellant to the district court for a writ of mandamus to restore him to the office. The clerk of this court will be instructed to correct the style of the case. The suit is against the mayor and aldermen of the city, who compose the city council. Appellant alleged that the city council had on the 10th day of September, 1895, unlawfully and without power or authority of law, removed him, and declared said office vacant. Appellees deny the jurisdiction of the district court to grant the writ of mandamus to compel them to restore the appellant, and say further that he was rightfully removed. Appellant had been duly appointed and had qualified as recorder of the city of Galveston for the term of two years from June 17, 1895, and was acting as such when removed. On Saturday, August 24, 1895, he committed an assault upon one Edward Hirschfield, by striking him on the head with a pistol. The evidence showed that the assault was committed on account of an assault by Hirschfield upon the child of Johnson, and grew out of a provocation entirely personal, and in no manner related to the discharge of appellant's duty as recorder. Hirschfield made a complaint before the city council, as follows: "Now comes Edward Hirschfield, and, as a citizen of the city of Galveston, makes it known to the honorable city council of the city of Galveston that Marsene Johnson, the recorder for the said city of Galveston, has during his present term of office as such recorder committed such acts of malconduct as to warrant his removal from said office. As a citizen of said city, your informant now charges that the acts of malconduct committed by said Marsene Johnson during his present term of office are as follows, and he charges as follows, to wit: That he, said Marsene Johnson, did on, to wit, Saturday, August 24, 1895, enter the place of business of your informant, and did then and there unlawfully commit an assault upon

your informant, Edward Hirschfield, by striking him on the head with a deadly weapon, to wit, a pistol. Your informant charges that the aforesaid acts on the part of said Marsene Johnson were in

violation of the laws of the state of Texas, and constitute malconduct in office on the part of said Marsene Johnson, he being guilty of acts unbecoming a judge and peace officer. Your informant now asks that the aforesaid charges be heard, and that the said Marsene Johnson be served with a copy of said charge, and that he be cited to appear before the honorable city council of the city of Galveston, and show cause, if any he has, why he should not be removed from the said office of recorder, and that he be removed therefrom.” Appellant, having been duly cited to appear before the said city council, answered the charge, and denied that he had been guilty of any act which, under the charter of the city, would give jurisdiction to the council to remove him, and denied the charge made against him. He also introduced evidence upon the trial in rebuttal of the evidence offered in support of the complaint. After hearing the evidence the city council, on the 10th day of September, 1895, sitting as a court for the trial of the appellant upon the charge preferred against him, by a vote of more than two-thirds of the aldermen, adjudged that the charge had been sustained, and that appellant was guilty of malconduct in office, and that he be removed from said office of recorder of the city of Galveston, and that said office be declared vacant. Appellant acted as recorder until the 10th of September, 1895, when he was removed as above stated. The unexpired term of the office is worth the sum of $3,150, as stated in the petition.

It is well settled that mandamus is a proper writ to restore a person to an office from which he has been illegally ousted. Banton v. Wilson, 4 Tex. 400; Nelson v. Edwards, 55 Tex. 389; Lindsey v. Luckett, 20 Tex. 516; Milliken v. City Council, 54 Tex. 388; Terrell v. Greene (Tex. Sup.) 31 S. W. 681. It is also a well-recognized principle of law that the writ will not lie to revise the judgment of an inferior court, or to compel the action of a public officer to whom a discretion is given by law in the decision of a question. Ewing v. Cohen, 63 Tex. 484; Bledsoe v. Railway Co., 40 Tex. 554; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62. But where a court is without jurisdiction of the subject-matter which it has undertaken to adjudicate, and has no authority conferred upon it by law to entertain the complaint or cause of action, any judgment it may render, undertaking to adjudge the rights of the parties, will be void, and may be attacked collaterally and its nullity shown. This is a familiar principle of law, and needs no citation of authority in support of it. The city council of the city of Galveston had the authority conferred upon it by the charter of the city to sit as a court, as it did in this case, and try an officer of the city, and remove him upon any charge made a cause for removal by the charter itself, and its judgment in

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such case could not be reviewed upon ap- pers at the time it was so indorsed, and that plication for a writ of mandamus to restore it was approved by the judge on the day court the officer so removed. The judgment of the

adjourned. Held, that the motion would be de

nied, in the absence of any showing that the bill city council in such case would also be was not deposited with the clerk before court final, if not void, as no appeal is provided adjourned. for. If the judgment of the city council

2. Where a written contract of partnership

provided that the parties should share equally be not void, the writ will not lie, and the the profits and losses, in an accounting it was judgment below is correct. So the investi- error to exclude evidence offered of a credit of gation must be as to the validity of that

$300 paid out by defendant as necessary ex

penses, on the ground that defendant, in his judgment. If the charge upon which the

testimony, admitted that plaintiff had not exappellant was tried was one for which the pressly agreed to pay one-half, or that they charter authorized his removal, the action

should be incurred on behalf of the partnership. of the city council, even if not correct, was

3. In an action to settle partnership ac

counts, where both parties sought settlement, final, and cannot be reviewed by the district

and each claimed of the other sums not recovercourt. But, if the appellant was removed ed, and each was in fault in allowing the acfor a cause not authorized by the charter,

counts to stand in such a condition so long that

the service of an auditor was necessary, it was the city council was without jurisdiction of

not error to tax one-half of the auditor's fees the charge, and had no authority to remove to the successful party. the appellant, and mandamus will lie. Mil

Appeal from district court, Goliad county; liken v. City Council, supra; State v. Com

SF. Grimes, Judge. mon Council of City of Watertown, 9 Wis.

Action by E. Milde against C. H. Baker for 254; State V. Common Council of Jersey

settlement of accounts of a partnership beCity, 25 N. J. Law, 536; and other authorities

tween plaintiff and defendant. From a judgcited by counsel for appellant. Section 156

ment for plaintiff, defendant appeals. Reof the charter of the city of Galveston set

versed. out the causes for which the recorder may be removed, as follows: "The city council

Patton & Burke and T. P. Holliday, for apshall have power to remove any officer for

pellant. Ellsberry R. Lane, for appellee. incompetency, corruption, malconduct, malfeasance or nonfeasance in office, after due WILLIAMS, J. Appellee sued appellant notice," etc. The malconduct in the char- for a settlement of the accounts of a partter is malconduct in office. If appellant is nership which had existed between them removed, that is the charge which must be since November 18, 1878,- for more than 15 sustained. “Malconduct,” as used, means years,-and to recover a balance of $3,857.84 misconduct, and the offense is official mis- alleged to be due plaintiff on settlement. conduct. However reprehensible the con- Appellant answered, denying that he was induct of the appellant may have been, it debted, and setting out the account, as he was in no manner connected with the dis- claimed it to be, and claiming a recovery of charge of the duties of his office, either as over $1,000 against plaintiff. Among the recorder or as an ex officio magistrate of the

credits claimed was the sum of $300, which state, and was not malconduct in office. appellant averred he had paid out as necesThe council had no authority to remove him sary expenses on a trip to St. Louis to purupon the charge made. The cause was not chase goods for the firm. By consent the sufficient, as stated in the complaint, and accounts were referred to an auditor, who the evidence produced does not tend in any reported a balance in favor of appellee of way to connect the assault with appellant's $82.10, and submitted for the decision of the official duties. The city council was there- court two items of $200 and $400 claimed by fore without jurisdiction of the charge, and plaintiff, as to which there was a conflict of could not legally remove the appellant, and evidence, and as to which the auditor made the court below should have granted the no finding. Plaintiff filed exceptions to the writ to restore him. The judgment of the auditor's report, claiming the two items thus court below will be reversed, and judgment | referred back to the court, and also objecthere rendered in favor of the appellant, ing to the findings of the auditor as to other granting him the relief prayed for,

named items. Defendant, also, objected to the report, because the $300 item above referred to had not been allowed, and again

asserted his right to recover same. The BAKER V. MILDE.

items thus put in issue, except the last (Court of Civil Appeals of Texas. Nov. 14, named, were submitted to a jury, who found 1895.)

in favor of plaintiff for $900. The court exAPPEAL-BILL OF EXCEPTIONS-TIME OF FILING cluded evidence offered by defendant to esACTION TO SETTLE PARTNERSHIP ACCOUNTS

tablish the $300 credit for expenses, upon -EVIDENCE-Costs.

the ground that defendant, in his testimony, 1. On a motion to strike a bill of exceptions on the ground that it was not filed during the

admitted that plaintiff had not expressly term, it appeared that the filing mark on the agreed to pay one-half, or that they should bill bore a date prior to the adjournment, that

be incurred on behalf of the partnership. it was put on after the adjournment by one who had ceased to be the clerk after the court

The contract of partnership was in writing, ended, that the bill was found among the pa- and provided that the parties should share

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