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law allows damages for the value of the ment entry shall include as a part thereof property converted, with interest from the the disposition of the costs. Rev. St. arts. date of seizure. This is the measure fixed 1613, 1639. We think the court of appeals by law; but the jury, in determining in what placed the proper construction on the statute, amount the plaintiff has been damaged, are and that the case of Colorado Co. v. Delaney, not required to allow and find as a matter of

supra, and any others following it, should no law the interest as a part of such damages. longer be recognized as authority. The acThe jury may, under certain facts, conclude tion of the county court, therefore, in this that plaintiff would be compensated without

case, in dismissing the appeal because the an allowance of interest. Reversed and re

amount of the bond was only double the sum manded.

recovered in the justice's court exclusive of costs, was proper.

It is strenuously insisted, however, that the

court had no right to act on the motion to BELL V. BROWN.

dismiss till the term at which the case could (Court of Civil Appeals of Texas. Dec. 6,

have been tried. The transcript was filed 1895.)

after the first day of the term at which the APPEAL-INSUFFICIENT BOXD-DISMISSAL.

appeal was dismissed, but the appellant was 1. Under the act requiring that a bond on

notified, and resisted the motion. We are of appeal from a justice's to a county court shall be double the amount of the judgment, the

opinion that a court may at any time, upon costs of the justice's court must be included in notice to the opposite party, dismiss a case the amount of the bond. Colorado Co. v. De

for want of jurisdiction. Such action is not laney, 54 Tex. 280, overruled. 2. An appeal from a justice's to a county

in any sense a trial of the case, but a refusal court may, on failure of appellant to give a to permit it to remain on the docket for trial. proper bond, be dismissed before the term at A defeated litigant should not be permitted to which the case would be triable.

obtain a stay of execution without the execuAppeal from Palo Pinto county court; W. tion of a sufficient appeal bond, in order that E. Newbrough, Judge.

he may have a trial of a case which must be On rehearing. Denied. No opinion filed dismissed when it is reached. Motion overat former hearing.

ruled. Wallace & Wallace, for appellant.

GRAVES v. HORN.1 (Court of Civil Appeals of Texas. Dec. 20,

1895.) APPEAL-Proof of ISABILITY TO Pay Costs.

An appeal was properly dismissed where the only proof of appellant's inability to pay or secure the costs was an affidavit filed with the district clerk, it not appearing that it was called to the attention of the court, or that any action was taken thereon.

Appeal from district court, Wichita county.

Action between C. E. Graves and Henry Horn. From a judgment for the latter, Graves appeals. Dismissed.

Hodges & Ofield, for appellant. J. H. Cobb, for appellee.

STEPHENS, J. In refusing the rehearing sought in this case, it is deemed proper, in view of the apparently conflicting decisions. upon the question of practice involved, to state our conclusions in writing. That question is whether the amount of the costs is to be added to the amount of the debt or damage recovered in the justice's court in fixing the amount of the appeal bond. The statute requires the bond to be in double the amount of the judgment. It was held in Colorado Co. v. Delaney, 54 Tex. 280, that by the amount of the judgment was meant the amount recovered exclusive of costs. In Owens v. Levy, 1 White & W. Civ. Cas. Ct. App. & 409, the court of appeals expressed a different opinion, holding that the construction given the statute in Colorado Co. v. Delaney would cut off the right of appeal in all cases in the justice's court where the plaintiff fails to recover and is adjudged to pay the costs. This decision was cited by counsel, and apparently followed by the supreme court in Ross v. Williams, 78 Tex. 371, 14 S. W. 796. True, in both these cases the only amount recovered was for costs; but the principle must be the

att

PER CURIAM. This appeal was dismissed because no sufficient proof was made, as required by law, of the appellant's inability to pay or secure the costs. The proof consisted merely of an affidavit to that effect filed with the clerk of the district court trying the case during the term at which the case was tried. It does not appear that it was called to the attention of the court, or that any action was taken thereon. Feeling constrained by the previous decisions of our supreme court in the construction of this statute, we concluded that the proof was insufficient. Warren v. Wooters, 52 Tex. 570; Woolridge v. Roller, Id. 451; and subsequent cases.

It cannot, with any show of reason, be contended that the costs alone should determine the amount of the judgment in one case, and be entirely ignored in another. The statute makes no such distinction, but requires the appeal bond to be in double the "amount of the judgment" in all cases alike, and also expressly provides that the judg

HUNTER, J., not sitting.

1 for opinion of supreme court, see 33 S. W. 322.

strained to the course pursued by the decision LONGLEY et al. v. WARREN.

adopted by our supreme court in Schleicher v. (Court of Civil Appeals of Texas. Oct. 26,

Gatlin, supra, citing other cases, which, how1895).

ever, when critically examined, will be found ADVERSE POSSESSION-MISTAKE AS TO TITLE.

not to sustain it. Taking it for granted that One settling on land to acquire it under

appellee would not desire to have the cause the homestead statute, erroneously believing it remanded, we not only reverse, but here rento be vacant public land, may, by such occu

der the judgment against him, in order that pancy, acquire title by adverse possession

there may be an end to the litigation, against the true owner. Appeal from district court, Jack county; J.

On Rehearing. W. Patterson, Judge.

(Dec. 20, 1895.) Action by Henry Warren against J. E. Longley and others. Judgment for plaintiff. De

This motion insists that, until reversed by

the supreme court, the decision in Schleicher fendants appeal. Reversed.

v. Gatlin, 85 Tex. 270, 20 S. W. 120, is concluJones & Gilliland, for appellants. G. A.

sive upon this court. It will be noted that McCall, for appellee.

the opinion in that case was written by Judge

Garrett, the present chief justice of the court STEPHENS, J. The only controverted is of civil appeals for the First district, who was sue in this case is one of law, to wit, whether then the presiding judge of the commission one who has settled upon a quarter section of rendering the decision. In the recent case of land as provided by our homestead donation

Cartwright v. Pipes (Tex. Ciy. App.) 29 S. W. statute, erroneously believing it to be vacant 690,-overlooked when our opinion was filed, public domain, can interpose 10 years of such Chief Justice Garrett, speaking for the court, occupancy as a bar to the suit of a previous maintains that the decision in the Schleicherlocator under a valid certificate, the land re Gatlin Case was right on the facts of that case, maining unpatented. That he cannot seems to but insists that it is not authority, as indicated have been decided in Schleicher v. Gatlin, 85 in the opinion of Chief Justice Fisher in the Tex. 270, 20 S. W. 120; but in Converse v. Converse-Ringer Case (Tex. Civ. App.) 24 S. Ringer, 24 S. W. 705, the contrary was held W. 705, for the position that the mere fact that by the court of the Third district, and the able

a person in possession of land belonging to anopinion of Chief Justice Fisher in that case other is of the belief that it is vacant public seems to us to announce the true construction land makes his possession, as a matter of law, of our 10-years statute of limitation. In ad that of one claiming in subordination, and not dition to the reasons there given, we call atten- | adversely. A charge was there approved to tion to article 3198, Rev. St., defining “adverse the effect that 10 years' adverse possession of possession" to be “an actual and visible appro land hostile to the true owner would confer title priation of the land, commenced and contin on such possessor, though he held the land unued under claim of right inconsistent with and der the mistaken belief that it was vacant. If, hostile to the claim of another." The right of then, the judge who wrote the opinion in the the state is expressly excluded from the op case be correct in the interpretation so given, eration of the statute. Rev. St. art. 3200. The there is no necessary conflict between that desworn application of the settler must state that cision and the one here rendered. In this conhe claims the land for himself. Rev. St. art. nection, see Hearne y. Gillett, 62 Tex. 27. But 3939. In this case the actual settlers, besides if the interpretation of Judge Fisher-also a their applications and surveys, made permanent member of the commission at the time the and valuable improvements on the land, as case was decided-be accepted, the rule anfound by the verdict, and manifested unmis nounced seems now to be disapproved by all takably their several appropriations of the the judges then composing the commission; the land, “commenced and continued under claim of chief justice of this court having been the other right(with boundaries designated as provided in member. We do not, therefore, feel constrainarticle 3195) inconsistent with and hostile to the ed by that decision to approve a judgment claim of another" (appellee) (Id. 3198); and of which seems to us to be clearly erroneous. all others whose rights might be affected by the The still more recent decision of the court of operation of the statute. The state excepted, civil appeals at Galveston in the case of Hartthe possession was undoubtedly adverse to all man v. Huntington, 32 S. W. 562, is in line the world. The statute only requires it to be with our conclusion in this case that the court adverse to "another," which, however broad its erred in refusing to submit the issue of admeaning, evidently was not intended to apply verse possession, though it may not accord to the state. The evidence of such adverse with our action in here rendering judgment for possession for more than 10 years being undis- appellants. But of this action we do not unputed, the court might properly have instructed derstand appellee to complain, provided the rethe jury to return a verdict for appellants. At versal of the judgment was proper; the facts all events, the refusal to submit the issue, to being undisputed, and admitting of but one which error is assigned, in the view we take of reasonable interpretation. We therefore still the law, requires the judgment to be reversed. approve the disposition made of the case, and The learned district judge doubtless feit con overrule the motion,

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5313

5313 ALEXANDER V. NEWTON.

19001 (Court of Civil Appeals of Texas. Nov. 9,

Hurd imp. 1895.) ADVERSE POSSESSION – COLOR OF TITLE – SUFFI

640 a. clm'd

by appellee. CIENCY OF DESCRIPTION. Five years' adverse possession under a deed in which the field notes do not embrace

124 a. in the land so held is insufficient to vest title

contrvs'y. thereto in the grantee, though the description is followed by the words, "And I do hereby transfer * * * all the right, title, and inter- Andrew Nail League Survey. est that I may possess under the 10-years statute of limitations;" there being no way of ascertaining the identity of such interest.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Trespass to try title by M. S. Alexander against W. P. Newton. From a judgment for defendant, plaintiff appeals. Reversed.

Huffmaster & Huffmaster, for appellant. Lee R. Stroud, for appellee.

Upon the trial, appellee, under his plea LIGHTFOOT, C. J. We adopt the follow- of the five-years statute, introduced in eviing statement of the case as substantially dence a deed from Vienna Wilson to himcorrect: Appellant, M. S. Alexander, insti- self, dated November 22, 1887, which was tuted this suit against W. P. Newton, Janu- filed for record the next day, and recorded ary 30, 1893, in the usual form of an action January 2, 1888. This deed described the of trespass to try title to recover a certain land conveyed as follows: "All that certain tract of land situated in Kaufman county, parcel of land known as the tract of land containing 124 acres, a part of the Andrew upon which I and my former husband, Caleb Nail league, the field notes and boundaries Herd, settled in the year 1852, and continued being particularly set forth in plaintiff's pe- to occupy until sold and conveyed to W. P. tition. October 10, 1893, appellant, as plain- Newton, on the date hereof, said tractor tiff below, filed his first amended original parcel of land known as a part of the Anpetition, alleging that on January 1, 1893, drew Nail league and labor of land, situated plaintiff was lawfully seised and possessed in Kaufman county, Texas, on the waters in fee simple of said 124 acres of land, and of East Fork of the Trinity; beginning that afterwards, to wit, January 2, 1893, de- south, 2 west, from the north corner of fendant, W. P. Newton, unlawfully entered Andrew Nail league and labor of land, a into and upon said land, and ejected plain- stake from which a locust, 6 inches in ditiff therefrom, and plaintiff claimed dam- ameter, bears south, 48 east, 11 vrs., a bois ages and rents. September 4, 1893, defend- d'arc, 4 inches in diameter, bears south, 20 ant filed his original answer, containing west, 142 vrs.; thence south, 43 east, 618 general and special exceptions, and a plea vrs., to a stake near head of ravine, from of not guilty. October 4, 1893, defendant which an ash, 4 inches in diameter, bears filed his first amended original answer, con- south, 10 west, 291/2 yrs.; thence south, 45 taining: First, general demurrer; second, west, 1460 vis., to a stake in timber; thence plea of not guilty; third, plea of limitation north, 43 west, 618 vrs., to stake from which of 3 years; fourth, plea of limitation of 5 a locust, 5 inches in diameter, bears south, years; fifth, plea of limitation of 10 years; : 48 east, 2 vrs., a locust, 3 inches in diameter, sixth, suggestion of improvements in good bears south, 40 east, 234 vrs.; thence north, faith. March 9, 1894, defendant filed in court 45 east, 1,460 vrs., to the place of beginning, a plea admitting the better title in plaintiff-containing one hundred and twenty-four to the land in controversy, and that plaintiff acres of land, or all the land that I may be can recover the same, unless defendant can entitled to by virtue of my ten-years residmake out title under his pleas of limitation ing on same, and using and cultivating it. of 5 and 10 years. There was a judgment And I do hereby transfer and convey unto for defendant, and plaintiff has appealed. the said W. P. Newton all the right, title,

It is claimed by appellee that he holds by and interest that I may possess under the limitation the 124 acres of land in contro- ten-years statute of limitations.” versy, as a part of the Andrew Nail league; The court below charged the jury, in subthat he holds under a deed from the widow stance, that if they believed from the eviof Caleb Hurd, who settled in the north cor- dence that appellee took possession of the ner of the league; and that 640 acres, sur- land in controversy under said deed, and reveyed in a square so as to embrace the Hurd mained in such possession from January 2, improvements, will include the 124-acre

the 124-acre 1888, a period of five years before this suit, tract in controversy. The following is a plat having peaceable, adverse possession of the of the land as claimed by appellee:

same, and claiming the same as his own V.33s. w.no.2420

property, and using and enjoying the same, we see no reason why the same theory and paying taxes thereon, then the jury would not carry him in any other direction, should find for appellee. Appellant, under and, with as much plausibility, fix his claim proper assignment of error, attacks this upon any other land in the neighborhood, charge, because the deed under which ap- thus bringing about the abused conditions pellee claimed to hold does not describe the so graphically described by Judge Roberts land with sufficient certainty to notify ap in the case of Mooring v. Campbell, 47 Tex. pellant that he (appellee) was setting up 39. The claim under the five-years statute claim to said 124 acres. The field notes set was not intended to rest on any such floatout in the deed certainly do not embrace the ing or movable basis, but should be fixed land in controversy, as they are confined to and certain, serving notice of the boundaa small tract, said to be 112 acres, in the ries of the hostile claim and possession. north end of the league, and more than a Cook v. Oliver, 83 Tex. 561, 19 S. W. 161; half mile from the land embraced in this Harkness v. Devine, 73 Tex. 628, 11 S. W. suit. The remaining words in the descrip- 872; Acklin v. Paschal, 48 Tex. 169; Mction are as follows: “Or all the land that Donough v. Jefferson Co., 79 Tex. 535, 15 I may be entitled to by virtue of my ten-. W. 490; Wofford v. McKinna, 23 Tex. 36. years residing on the same, and using and It is useless for us to pass upon the other cultivating it. And I do hereby transfer and grounds of error, as we deem this sufficient convey unto said W. P. Newton all the to settle the case in so far as the five-years right, title, and interest that I may posses statute is concerned. Under the ten-years under the ten-years statute of limitations.” | statute, there is a conflict in the evidence, Do these words convey any definite idea of and we do not deem it proper to discuss it. the land intended to be conveyed beyond For the error of the court in its charge to the 112 acres, if, in fact, such intention ex. the jury on the five-years statute of limitaisted? Suppose the deed had only embraced tion, the judgment is reversed, and the this description, and nothing more; could it cause remanded. be said from an inspection of such a deed that the grantor intended to convey a definite and specific tract of 640 acres of land, and that such tract was in a particular and

MARTIN et al. v. JOHNSTON. definite shape, and necessarily included the (Court of Civil Appeals of Texas. Nov. 16, 124 acres of land in controversy? We think

1895.) not. The uttermost limit to which any of RECOVERY OF PENALTY - PLEADING - CONSTITUour decisions have gone was to sustain the TIONAL LAW-STATUTE FAILING TO Fix MAXIMUM five-years statute under a deed calling for

PUNISHMENT-WEIGHTS AND MEASURES. all the land of the grantor in a certain coun

1. A petition to recover a statutory penalty

imposed by a general law need not plead the ty, and where, by reference to the records statute. of such county, it could be definitely ascer

2. Const. U. S. Amend. 8, 14, prohibiting tained what lands were meant. Cantagrel

excessive fines, refers to powers exercised by

the United States, and not by the states. v. Van Lupin, 58 Tex. 578. This was done 3. Act 1879 (Acts 16th Leg. p. 116), prounder the well-established legal maxim, i hibiting any person, other than a public weigher, "That is certain which can be rendered cer

from weighing certain produce, is not unconstitain.” In this case, even if it should be

tutional for failure to fix the maximum fine to

be imposed. conceded that the grantor intended to con

4. More than one penalty imposed by such vey, in addition to the land described, all act may be recovered in the same petition. the right which she had under the statute

5. Act 1879 (Acts 16th Leg. p. 116) $ 7,

prohibits any person other than a public weighof limitation, the deed is perfectly silent

er from weighing certain produce; and section

it extended, and there is no place where that other person to weigh such produce, provided information can be found. If she claimed

any owner shipping any such produce may, by

written instructions, authorize his factor to have beyond the land actually described, how

the same weighed by private weigher. Act easy it would have been to have set it out 1883 purports to amend sections 1, 2, and 9 of in the deed, at least, by some designation

the act of 1879, and provides that nothing

therein contained shall prevent any person from which would have served notice upon the

weighing such produce, when requested to do so owner that the deed was intended to em by the owner. Held, that the owner of such brace the 124 acres in this case,-a half mile produce may procure any one to weigh his prodistant from the land described. It has

duce, when he is present and acts for himself. been held by our supreme court, in an able Appeal from district court, Fannin county; opinion by Jui.ge Willie, that limitation, like E. D. McClellan, Judge. estoppel, is a plea which requires "much Action by James B. Johnston against Marclearness of proof.” Tucker V. Smith, 68 tin, Wise & Fitzhugh and others. There was Tex. 481, 3 S. W. 671. Every presumption a judgment for plaintiff, and defendants apis in favor of the rightful owner. Ang. Lim, peal. Reversed. § 385. If appellee, under such a deed, could Appellants make the following statement of reach a half mile southeast beyond the land the nature of this suit, which is accepted as described, so as to reach the 124-acre tract, substantially correct by appellee: which he admits was owned by appellant, Appellee originally brought three suits, one

against each of appellants, claiming damages from each of them for substantially the same cause set out in his fourth amended original petition. They were instituted in March, 1887. Subsequently (April 18, 1890), by an order made in the cause against Martin, Wise & Fitzhugh, both of the other causes were consolidated with it. On September 4, 1893, plaintiff (appellee) filed his fourth amended original petition, alleging, in substance: (1) The consolidation above mentioned. (2) That the appellants Martin, Wise & Fitzhugh and Johnson & Long were then, and were when the suit was brought, members, stockholders, officers, and directors of the Lamar Warehouse Company, and that each and all of the defendants would be styled and treated and charged as joint tort feasors in the matters thereinafter set forth; that Lamar Warehouse Company was chartered June 4, 1883, and its business, as expressed in its charter, was to do a general warehouse and commission business, "to receive, store, house, and ship cotton or other goods." (3) That "some time in August, 1883, in order to protect the sellers of cotton, the commissioners' court of Lamar county made, passed, and entered of record an order providing for the appointment of public weigher for Paris and Blossom Prairie, in said county of Lamar, to act until the next general election thereafter, and for the election of four cotton weighers in said county of Lamar, at the general election next thereafter, as provided by law, who should be elected by the qualified voters of said county, thereby establishing the office of public weigher in said county, and made the sa me elective at the next election thereafter." (4) That on or about November 4, 1881, he was by the legal voters, etc., duly and legally elected to the office of public weigher in and for said county of Lamar, for the term of two years after said election next following, to act as such in the city of Paris, in said county and state; that immediately thereafter he qualified as such public weigher, as the law provides, by taking the oath and giving the bond required by law; that he at once entered upon the discharge of his duties, etc. (5) That he was then and there, and up to the 5th day of November, 1886, ready and willing to weigh all bales of cotton, etc., which were required or were necessary to be weighed in said Lamar county, and which were brought to said city for sale by the owners or producers thereof, or their agents. (6) That immediately after his election and qualification, and on divers days since then, and while he was public weigher as aforesaid, he offered to defendants his services as public weigher, and offered to weigh, by himself and by deputies, all bales of cotton which they, or either of them, might buy or desire weighed; that they each refused to allow him, or any deputy of his, to weigh any cotton for them, or for any person from whom they bought or received cotton. (7) That

Martin, Wise & Fitzhugh and Johnson & Long were on November 4, 1883, and have ever since been, engaged in the business of buying cotton in the city of Paris. (8) That from September 1, 1885, to February 1, 1886, Martin, Wise & Fitzhugh so bought in the city of Paris as many as 9,000 bales of cotton, none of which were weighed by the public weigher or deputy public weigher, and were bought from the owners and producers thereof by them, and that all the cotton so bought by them during that time was weighed by P. M. Speairs or A. B. Long, neither of whom was a public weigher or a deputy public weigher, and both of whom were employed and paid by defendants to weigh cotton bought by them from the owners and producers thereof, and delivered at Paris by wagons; and the said Speairs and Long were employed by the defendants to weigh all the cotton bought by them and each of them, and they did so weigh, under said employment, all cotton bought by each and all of the defendants during said time. (9) Substantially the same allegations are made as to the defendants Johnson & Long, except that it is charged that they so bought, etc., 5,000 bales of cotton. (10) That during the time from September 1. 1885, to the last day of January, 1886, the defendants Martin, Wise & Fitzhugh and Johnson & Long and Lamar Warehouse Company, acting together, employed and paid P. M. Speairs and A. B. Long to weigh, and they did weigh, all the bales of cotton bought by either and all of the defendants during the time plaintiff was public weigher aforesaid, and the said P. M. Speairs and A. B. Long, under and by virtue of said employment, did weigh all the cotton purchased by either of the defendants, or which was stored in or passed through the Lamar warehouse; and that said cotton was so weighed without the request of owners thereof, or either of them, and when so weighed was not the property of the defendants, or either of them, nor of the said P. M. Speairs or A. B. Long. (11) That during that time Martin, Wise & Fitzhugh and Johnson & Long bought from the owners and producers thereof: From, to wit, J. F. Fleece, 23 bales; from Dan Wisely, 12 bales; from C. A. DeWitt, 13 bales; from P. M. Estes, 17 bales; from W. Marchbanks, 18 bales; from J. R. Wooldridge, 23 bales. That he is not able to state the precise day on which defendants purchased any of said cotton, nor can he state the names of any other persons from whom defendants, or either of them, bought cotton, except as hereinafter shown, so as to locate the precise time the same was purchased or weighed, or the names of the persons from whom it was bought, or the number of bales bought from each person, for the following reasons, to wit: During all of said time all of the defendants were buying cotton in the city of Paris brought there from all parts of Red River, Lamar,

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