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to Peter Beard, the appellee. The second against said parties and be levied upon the execution issued on said judgment against property of said firm, or upon the individuCallaway & Wilson as a firm and against al property of the said Henry B. Wilson, Henry B. Wilson individually on October who was served with process in this cause.' 29, 1894, and under it the lot in controversy “(2) Defendant next read in evidence the in this suit was levied upon, and on De first execution issued in the above case of cember 4, 1894, the same was sold by the George F. Hamilton vs. Walter P. Callaconstable, at which sale the appellant, G. way and Henry B. Wilson, No. 893, from F. Hamilton, became the purchaser. The the justice court of precinct No. 3 of Travis appellee, Peter Beard, brought this suit of county, Texas, issued on the 11th day of trespass to try title against G. F. Hamilton December, 1886, by Fritz Tegener, justice of on December 12, 1894, to recover said lot. the peace of precinct No. 3 of Travis county, Hamilton filed a plea of not guilty, and the Texas, for the sum of $73.84 and costs of case went to trial on the 16th of January, suit, and the return of the constable there1895, before the court without a jury, and on, which showed that the execution came the court gave judgment that Peter Beard into his hand on the same day it was issued, recover the lot in controversy from G. F. and returned 'Not satisfied.' Hamilton, to which judgment he excepted, "(3) Defendant next read in evidence the and gave notice of appeal, and on January citation issued by the justice of the peace 23, 1895, he filed his appeal bond and as on November 15, 1886, in the above cause, signments of error, and brought the case to No. 893, of George F. Hamilton vs. Callathe court of appeals.

way & Wilson, which citation commanded We find the following as the facts shown the officer to summons Henry B. Wilson, of by the record:

the firm of Callaway & Wilson, composed "Plaintiff read in evidence without objec of Henry B. Wilson and Walter P. Callation a deed from H. B. Wilson and his wife, way, who were partners doing business in Sue R. Wilson, to Peter Beard, dated Oc Travis county, Texas, under the firm name tober 15, 1894, conveying to Peter Beard, of Callaway & Wilson, to be and appear be. in consideration of $125, all of lot number fore the justice of the peace at his office eight (8) in block H in the Bouldin addition in Travis county, Texas, on the last Monto the city of Austin, Tex., as shown by Plat day in November, 1886, to answer the comBook No. one (1), page No. seventy-one (71), plaint of George F. Hamilton in an action on file in the office of the county clerk of of debt on an open account for $87.40; and Travis county, Texas." Here plaintiff rested

defendant also read in evidence the return his cause.

of the constable on this citation, which Defendant's evidence was as follows: showed that the same was executed by the

"Defendant read in evidence the following constable on the 17th day of November, 1886, judgment rendered in the justice court of by delivering to the defendant H. B. Wilson precinct No. 3, Travis county, Texas, in in person, on that day, a true copy of the cause No. 893, which judgment was as fol citation. lows: "George F. Hamilton vs. Callaway & "(4) Defendant next read in evidence the Wilson. No. 893. This cause being called abstract of the judgment as recorded in for trial on the 30th day of November, A. Book No. 2, page 333, of the Judgment Lien D. 1886, the plaintiff appeared in person Records of Travis county, Texas, in above and by attorney, and announced "Ready." cause, No. 893, which was as follows: The defendant Henry B. Wilson, of the " "The State of Texas, County of Travis. I, above firm of Callaway & Wilson, having J. A. Stuart, justice of the peace, precinct been served with citation in this cause, ap No. 3, within and for the county and state peared in person and by his attorney, and aforesaid, do certify that in said justice says nothing in bar of plaintiff's action, but court, Fritz Tegener being then the justice admits and consents that judgment may be of the peace, on the 30th day of Nov., 1886, entered against the defendants in this cause in the cause No. 893, of George F. Hamilton, for the sum of $73.84, besides all costs of Plaintiff, vs. Walter P. Callaway and Henry suit; and it appearing to the court that said B. Wilson, Defts., the said George F. Hamamount of $73.84 is due plaintiff at this date ilton recovered a judgment against the said from the defendants, after allowing all off Callaway & Wilson for the sum of seventysets to plaintiff's demands, it is therefore three and 84/100 dollars, with interest at the ordered and decreed by the court that the rate of eight per cent. per annum, and all plaintiff, George F. Hamilton, do have and costs of suit, amounting to $4.25; the whole recover of and from defendants, Walter P. amount whereof is due and unpaid. In witCallaway and Henry B. Wilson, comprising ness whereof I hereto place my hand, this the firm of Callaway & Wilson, and against 27th day of June, A. D. 1890. J. A. Stuart, the defendant Henry B. Wilson individually, Justice of the Peace, Precinct No. 3, Travis

for the sum of seventy-three and 84/100 County, Texas.

($73.84) dollars, with interest thereon from this date until paid at the rate of eight per cent. per annum, besides all costs of suit, and for all which execution may issue

“ 'Filed for record at 12:15 p. m., June 28, 1890, and recorded the 28th day of June, A. D. 1890, at 1:05 o'clock p. m.'

(5) Defendant next read in evidence the

original abstract of above judgment in case stable sales, sold said premises at public venNo. 893, which was recorded in Judgment due to G. F. Hamilton for the sum of $70.00. Lien Record Book No. 2, page 333, and from he being the highest bidder for said propwhich said record was made, and which is erty, and it further showed that the cost an exact copy of the above set out judg- that accrued by virtue of the levy and sale ment. Defendant also read in evidence the was $16.15, and the execution was returned certificate thereto attached, made by Frank 'Not satisfied.' Brown, county clerk of Travis county, Tex- “(9) The defendant next read in evidence as, which showed that said abstract of judg- the deed of the said constable, J. M. Davis, ment was filed for record in his office on the dated December 4, 1894, conveying to George 28th day of June, A. D. 1890, at 12:45 p. m., F. Hamilton, by virtue of said constable sale, and duly recorded and indexed the 28th day in ordinary form, lots No. 7 and 8 in block of June, A. D. 1890, at 1:05 o'clock p. m., H of Bouldin addition to the city of Austin, in the Records of said County of Travis, Travis county, Texas, according to the plat Texas, in Book No. 2, page 333.

of said addition recorded in Plat Book 1, "(6) Defendant next read in evidence from page 71, in the office of the county clerk of Volume 1 of the Judgment Lien Index Rec- Travis county, Texas, said lots each being ord of Travis County, Texas, the following 502 feet by 150 feet, which deed was propindex, recorded in the alphabetical list of erly acknowledged and recorded in Travis W's, which was as follows, to wit:

county, Texas, on the 7th day of December, No. Defendant.

Plaintiff. Book. Page 1894, in the Sheriff's Deed Record of said 893. Wilson, H. B., et al. Geo. F. Hamilton. 2 333 County of Travis in Book No. 110, page 48." “Defendant also read in evidence from the

Here defendant rested his case. said Volume 1 of the Judgment Lien Index Plaintiff, in rebuttal, offered and read in Record of Travis County, Texas, the follow- evidence from the above-mentioned Volume ing index, recorded in the alphabetical list

1 of the Judgment Lien Index Record of of C's, which was as follows, to wit:

Travis County, Texas, the following index, No. Defendant.

Plaintiff. Book. Page recorded in the alphabetical list of H's, as 893. Callaway, W'.P., et al. Geo. F.Hamilton. 2 333

follows, to wit: “(7) Defendant next read in evidence the

No. Plaintiff.

Defendant. second execution issued in said cause No.

Book. Page

893. Hamilton, Geo. F. Walter P. Callaway. 2 333 893, issued on the 29th day of October, 1894,

Conclusions of Law. against Walter P. Callaway and Henry B. Wilson, composing the firm of Callaway & The appellant's case depends upon the vaWilson, and against Henry B. Wilson indi- lidity of his judgment lien. The judgment. vidually, for the sum of $73.84, bearing 8 rendered by the justice court was against the per cent. interest per annum, besides all firm of Callaway & Wilson and against Hencosts of suit, which execution commanded ry B. Wilson, a member of the firm. The the officer to make said amounts out of said | abstract of the judgment, which was certifirm, or out of the said Henry B. Wilson in- fied by the justice of the peace, and which dividually; and the said execution was is- was recorded in the judgment lien records, sued in favor of George F. Hamilton, and it does not show that a judgment was obtainfully described the judgment.

ed against the firm or copartnership of Calla"(8) Defendant next read in evidence the way & Wilson, or against H. B. Wilson inreturn on the said last-named execution, dividually. For this reason we hold that which return showed that the constable re- the record did not create a lien. Anthony ceived the execution on the 1st day of No- v. Taylor, 68 Tex. 405, 4 S. W. 531; Gullett vember, 1894, and executed it on the 1st day Gin Co. v. Oliver, 78 Tex. 184, 14 S. W. 451. of November, A. D. 1894, by levying on lots Judgment affirmed. Nos. 7 and 8 in block H of Bouldin addition to the city of Austin, Travis county, Texas, according to the plat of said addition recorded in Plat Book 1, page 71, in the office of

DENECAMP et al. v. TOWNSEND.1 county clerk of Travis county, Texas, and on the 1st day of November, A. D. 1894, by (Court of Civil Appeals of Texas. Oct. 2, advertising the same to be sold before the

1895.) courthouse door of Travis county, Texas, on APPEAL-STATEMENT OF Facts—MOTION TO STRIKE the first Tuesday in December, A. D. 1894,

-SUBROGATION-VENDOR'S LIEN. it being the 4th day of December, A. D. 1. A motion by appellee to strike out ap1894, by having notice of time, place, and pellant's brief, because of an imperfect or erterms of sale published in the English lan

roneous statement of facts, will not be enter

tained. guage once a week for three consecutive

2. An appellee who objects to the appelweeks immediately preceding such sale in lant's statement of facts should set forth his the Austin Daily Statesman, a newspaper objections in his brief, and upon a submission published in said county; and on the said

of the case the statement of appellant will be

investigated to ascertain whether the objections first Tuesday in December, A. D. 1894, be

are well founded. fore the courthouse door, as aforesaid, and within the hours prescribed by law for con- 1 Rehearing denied.

On the Merits.

gard to the statement of the facts, or in any A vendor's lien note, secured on the other particular, the court will of its own momaker's homestead, having been indorsed by the tion take such action as may be necessary. payee to a third party, plaintiff, at the instance of the maker and payee, paid the note when

The motion to strike out the briefs is overdue, and in lieu thereof took another note for

ruled. a like amount, secured on the same premises.

On the Merits. Held, that plaintiff, though he had notice that the property was a homestead, would be subro

(Nov. 6, 1895.) gated to the rights of the indorsee, so that he

JAMES, C. J. The judgment, we think, could enforce the note against the homestead, if such indorsee was a bona fide purchaser for

should be reversed. The case is one in which value.

we should not refer to the facts further than Appeal from district court, Bexar county;

is necessary to indicate the reasons for the S. G. Newton, Judge.

reversal. There are two transactions, both of Action by R. K. Townsend against Adolph which may be material in arriving at the Denecamp and another. From a judgment rights of the parties. In reference to the for plaintiff, defendants appeal. Reversed.

transaction whereby the appellee Townsend Clark, Summerlin & Fuller, for appellants.

became an interested party, there was some Vernor & Robinson, for appellee.

evidence, which it was proper for the jury to

consider, upon the issue of whether or not he On Motion of Appellee to Strike Out Appel- | had notice of the fact of homestead when he pellants' Brief.

advanced his money. The other transacFLY, J. Appellee files a motion to strike

tion, by which Inselman became the holder of out the brief of appellants, alleging that their

the vendor's lien note that had been given statement of the facts of the case is incorrect,

by Wahrmund to Denecamp, and which note and not supported by the statement of facts.

had been indorsed to Inselman by Denecamp, A number of alleged erroneous statements are

and in Wahrmund's possession when Inselspecified, and to verify the same would re man obtained it, may have come into Inselquire a thorough examination of the state man's hands as an innocent purchaser for ment of facts, and entail upon the court an

value. If it did, it is unquestionable that In. amount of labor that could never have been selman could have enforced it against the contemplated or intended in the adoption of homestead; and it is also clear that Townthe amended and new rules. The object in

send, even if he had notice of the fact that passing rules is uniformity in practice; a

the note had been given in fraud of the clear presentation of the issues; aid to the

homestead, could have purchased it from Incourts in arriving at correct conclusions and selman, and been entitled to enforce it. The expediting business. Whether rule 30 will evidence is that, when this note became due, assist in attaining these ends or not, that

Townsend, at the instance of Wahrmund, the must have been its object. If motions like

maker of the note, and Denecamp, the payee, the one we are contemplating could be en paid it off, taking in lieu of it another note tertained, the rule will be an obstruction, for like amount, purporting to be secured by rather than an aid, in judicial investigation.

a vendor's lien on the same premises. StandIt is clear that the rule does not contemplate | ing alone, this latter transaction may not any such course, for it provides a way to have been valid, but if Inselman had becorrect errors when the appellee may be

come vested with a right to enforce the note dissatisfied with the statement made by ap

he bought, as a vendor's lien on the property, pellant in his brief. It provides: “This

it is our opinion that Townsend, when his statement will be accepted by the court, as

money went to pay off the note, was in equity true, unless the appellee or defendant in er subrogated to the rights of Inselman. If the ror shall object to it and point out wherein

evidence had made it clear that Inselman such statement is incorrect, when the court was an innccent purchaser of the note, and will examine the record to ascertain which

took it on the faith that the lien existed, we statement is sustained by the record.” The

should not hesitate to affirm the judgment, object of the new rule, it would seem, is to

because it would then be immaterial whether obviate the necessity of an investigation of

or not Townsend had r:otice that the property the statement of facts by the court when was a homestead. The evidence shows that there is no dispute about the facts. It is Inselman gave value for the note, and he true that in the same rule authority is given

testified that he knew nothing about the matthe court to strike out briefs that do not com ter of homestead; but, from all the testiply with the rules, but it does not contem mony, we are not able to say, as matter of plate the striking out of a brief on account of law, that he was imposed upon by the prean imperfect or erroneous statement of the

tended lien. We think there were facts and facts, upon the motion of the appellee or de

circumstances which made it proper to subfendant in error. The proper practice would mit, also, this question to the jury. We conbe to set forth the objections to the state clude, therefore, that the issue of Inselman's ment in the brief of appellee, and upon a good faith should be submitted to the jury, submission of the case the statement of facts and, if found adversely, that then the case will be investigated to ascertain whether or will depend on the question of good faith on not the objections are well founded. In the the part of Townsend. Reversed and recase of flagrant violations of the rules in re manded.

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the streets around their land and from a porCITY OF SAN ANTONIO V. MULLALY tion of the lots in said blocks, and hauled et al.1

the same away for the purpose of filling up (Court of Civil Appeals of Texas. Nov. 20,

and grading its streets in other parts of the 1895.)

city, and that by reason of the large amounts MUNICIPAL CORPORATIONS EXCAVATION OF

of gravel unlawfully and negligently taken STREETS-ACTION FOR DAMAGES TO PROPERTY

and hauled from their property they had PETITION-SUFFICIENCY - EVIDENCE

- MEASURE been damaged in the sum of $2,000. This OF DAMAGES.

allegation of damages was sought to be es1. In an action against a city, allegations

tablished by proving the value of the gravel in the petition that defendant unlawfully caused the gravel to be excavated from the

taken from the lots and contiguous streets. streets around plaintiffs' land and from a por- The foregoing allegations were specially extion of the lots, and hauled the same away, cepted to by the defendant upon the ground for the purpose of grading the streets in other

that they state no cause of action. The parts of the city, are insufficient in not showing that the gravel taken was below the grade of

overruling of this exception is assigned as the street.

error. Although the fee to a street may be 2. Under the constitutional provision that in the adjoining lot owner, a city grading no person's property shall be taken, “damaged,

the street has the right to take from any or destroyed for or applied to a public use without adequate compensation being made, where a portion of it the gravel or other material city, in grading streets, leaves large and danger- situated above the grade line, and use the ous holes in the streets, it is liable to owners

same in improving or repairing that or any of abutting lots for damages, if any, to such lots.

other of its streets, and without compensa3. Where a city, in grading streets, leaves tion to the owners of the property abutting large and dangerous holes in the streets, and on the portion of the street from whence the also in abutting lots, the measure of damages is the market value of the lots immediately be

gravel or other material may be taken. 2 fore and immediately after the excavations were

Dill. Mun. Corp. (4th Ed.) 8 656a, note; Id. made.

$ 687, note 2; Id. $$ 688, 689, and notes. And 4. In an action against a city, allegations

it has been held that if the city does not de"that by reason of the excavations made on plaintiffs' property and in streets contiguous

sire the soil for the purpose of filling in oththereto plaintiffs have never been able to find er streets, and the adjoining owner does not a purchaser therefor," are bad, since such dam

remove it, the city may sell and dispose of ages are speculative, and too remote. 5. In an action against a city for damages

it in any way it may deem proper. Id. $ to lots caused by holes left in grading a street 689; Griswold v. Bay City, 35 Mich. 452. on which they abut, the opinion of a witness as The petition does not show that the gravel to the necessity of grading such street is inad

was taken below the grade level of the street, missible.

nor that it was not done in the course of Appeal from district court, Bexar county; | grading the street. In the absence of such S. G. Newton, Judge.

allegations, it will not be inferred that the Action by Thomas W. Mullaly and others taking was wrongful. We are of the opinagainst the city of San Antonio to recover ion, therefore, that the exception to the part damages to lots caused by excavations on of the petition alleging damages for removthe same and in the streets contiguous there- ing gravel from the streets and using it in to, and for the value of gravel taken there- grading another should have been sustained, from by defendant. From a judgment for and that the error of the court in overruling plaintiffs, defendant appeals. Reversed. it was prejudicial to the appellant. R. B. Minor, for appellant. C. A. Keller,

The petition also states "that defendant for appellees.

unlawfully and negligently caused the gravel

to be excavated from said streets and from NEILL, J. This suit was brought by the

a portion of the lots in said blocks, and

hauled the same away for the purpose of appellees against the appellant to recover

filling up and grading its streets in other damages for alleged injuries to certain blocks of land situated within the corporate limits

parts of said city; that said excavations

have been made in such manner as to leave of the city by reason of alleged excavations upon the same and in streets contiguous

large and dangerous holes in said streets thereto, and for the value of gravel alleged

and lots, several feet deep, which were freto have been carried away by appellant from

quently filled with stagnant water, etc.; that said blocks and streets. The city of San An

by reason of the excavations so unlawfully tonio answered by special exceptions and by

and negligently made as aforesaid by despecific denials of the material allegations

fendant upon plaintiffs' property and the in the petition. The cause was tried before

surrounding streets, and the dangerous and a jury, and resulted in a judgment of $2,500

impassable condition in which streets have in plaintiffs' favor, from which this appeal

been left by said defendant, the market value is prosecuted.

of plaintiffs' property has greatly depreciat

ed, to the further sum of ten thousand dolThe plaintiffs alleged in their petition that

lars." Defendant's fifth special exception the defendant had unlawfully and negligent

is: "Defendant specially excepts to said pely caused the gravel to be excavated from

tition in so far as plaintiffs therein seek to 1 Rehearing denied.

recover damages by reason of defendant's

having made and left excavations and holes

jury is, of course, permanent. But if, in the in certain of its streets, because said petition progress of grading the street, it is left uncontains no allegations of negligence on the finished, and in a dangerous condition, such part of defendant in so doing, and because de condition, if it affects the value of abutting fendant has a legal right to excavate and property, if permitted by the city to conleave excavations in its streets if not negli tinue for a considerable length of time, may gent in so doing.” The appellant complains be considered by the jury in estimating the of the court's overruling this exception. The value of the property before and after the contention of appellant, as set out in its acts causing the injury. It follows from the proposition, is: "The defendant city is not rule as to the measure of damages that the liable in damages to plaintiffs for injury to court did not err in admitting evidence to their property resulting from excavating or prove the value of the property immediately cutting down adjoining streets to proper before and immediately after the excava. grade line (of which the city is the exclusive tions were made. If the city contemplated judge) in the course of grading the streets completing the grading commenced by the of the city, in the absence of negligence on excavations within a reasonable time, and its part in the manner of making the exca if, when finished, their alleged dangerous vations; nor in such case is it liable for leav condition would have been obviated, it was ing excavations and holes, though dangerous, incumbent upon the city to prove it in dimin the streets for a reasonable time, in the inution of damages. absence of negligence on its part in so do We think that the allegation in the petition ing." If it should be conceded that this “that by reason of the excavations made on proposition is correct, we hardly think the plaintiffs' property and in streets contiguous portion of the pleading complained of is ob thereto plaintiffs have never been able to noxious to it; for the pleading alleges that find a purchaser therefor” is speculative in the acts complained of were unlawfully and its nature, and too remote to constitute an negligently done, by reason whereof the element of damages; and that the excepstreets bounding plaintiffs' lots were left in tion to the allegation should have been susa dangerous and impassable condition, to the tained. great damage of their property. If such We do not think that the opinion of the damage through negligence were the sole witness that there was no necessity for ground of appellees' right of recovery, we grading the streets adjoining plaintiffs' propthink negligence is sufficiently averred. But erty "except at the margins" was admiswe cannot assent to the proposition that in sible in evidence. It was the province of this state damages to one's property, caused the city to pass upon the necessity of gradby the grading by a city of its streets ad ing the street, and its exercise of the aujacent, are not recoverable. Whatever may thority cannot be called in question, except be the law in those states whose constitu in an action where an abuse of such authortions provide that private property shall not ity is alleged and made the basis of an acbe taken for a public use without adequate tion. compensation being first made to the owner, On account of the errors indicated, the judgthe law in Texas and in other states whose ment of the district court is reversed, and the organic law, like ours, prescribes that "no cause remanded. person's property shall be taken, damaged, or destroyed for or applied to a public use JAMES, C. J., entered his disqualification, without adequate compensation being made," and did not sit in this case. is that, if the property is “damaged,” though there is no actual taking, compensation for such damages can be recovered. Cooper v. City of Dallas, 83 Tex. 239, 18 S. W. 565;

HICKMAN et ux. v. HOFFMAN.1 City of Ft. Worth v. Howard (Tex. Civ. App.) 22 S. W. 1059; Lewis, Em. Dom. $ 223;

(Court of Civil Appeals of Texas. Nov. 27,

1895.) O'Brien v. City of Philadelphia (Pa. Sup.) 24

VENDOR AND PURCHASER-BONA FIDE PURCHASERS Atl. 1047; City of Bloomington v. Pollock

-EFFECT OF POSSESSION AS NOTICE. (Ill. Sup.) 31 N. E. 146; Brown v. City of

1. One who buys land from a bona fide Seattle (Wash.) 31 Pac. 314. In the cases purchaser takes it free from existing claims, from this state, cited above, it is held that though he may have had notice thereof at the an abutting owner is entitled to damages for

time he purchased.

2. Where a vendee of land, by deed from change of street grade, although it had never

husband and wife, conveyed it to plaintiff, who before been established, made in improving examined the title papers, and was ignorant of the street and placing it on proper grade. any fraud practiced on the wife, the fact that The measure of damages, as was held by

the vendors were in possession at the time plain

tiff purchased was insufficient to charge him the trial court, in such cases is the difference with notice, he having been told that the land between the market value of the property would shortly be vacated. immediately before and immediately after

Appeal from district court, Bosque county; the acts causing the injury. If the dam

J. M. Hall, Judge. age results from the projection of work in the street on its established grade, the in 1 Rehearing denied.

V.33s.w.no.2-17

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