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duties to the public, which the law places upon ness is required to be, constantly changing, and it. If that time has arrived, the railroad com- there was nothing in the contract of December pany may be allowed to show this by an appro- 6, 1890, having to do, referring to, or covering priate plea, supported by competent evidence.” additional trains which have been put on since
that time, and which in all the time to come Under the issue submitted to the jury and will be put on. which was supported by the evidence it was "(f) Because the enforcement of such a decree, found by them that it was not necessary for or such a portion of this decree, involving, as it
does, supervision of a situation constantly the appellant to move the division headquar-changing, is contrary to the usages and practice ters from the city of Ennis in order to serve of the courts, and especially so where, as this the interest of the public; hence we hold decree purports to do, the order is to be perpet
ual in its extent. against appellant on that issue.
"(g) Because it covers trains belonging not Appellant cites in support of its contention only to what was formerly the middle division, Railway Co. v. Marshall, 136 U. S. 393, 10 but to all parts of the defendant's property, proSup. Ct. 846, 34 L. Ed. 385, and practically vided only that they would pass through Ennis,
as to which there is nothing in the contract. relies upon that opinion for its support. Mr.
"(h) There are no pleadings to support such a Justice Brewer, who was a learned and a finding or decree. strong member of the Supreme Court of the “(i) There is no evidence to support the deUnited States, dissented from the majority cree in this respect.” rendering the opinion, and the case has been
Several propositions are submitted under criticized and modified by other courts of this assignment, which are, in substance: high degree. Our Supreme Court has held to (1) If the contract sued on was held to be a different view from the principle announced perpetual, it does not obligate the maintainby that case, and, as we are in accord with ing of “any character of train schedules or our courts, we will not follow the Marshall system or plan of running or changing crews
or engines, or fixing the end of the runs of Case.
its trainmen,” etc.; (2) nor does it obligate [3, 4] Appellant's third assignment of er
the “defendant to keep the trainmen, conror is:
ductors, brakemen, crews, and employés, or “The court erred in that part of this judg- locomotives, cars, equipment, or the officials ment in which the defendant was 'perpetually enjoined and restrained from ceasing to keep or
as are necessary in such division terminus maintain and from removing or causing to be re- operations or on trains so reconstituted at moved from the city of Ennis' the following: Ennis"; (3) that the judgment is "indefinite 'se) The division terminus for all its trains op- and uncertain, and for a decree operating erating into, through, or out of the city of Ennis, in Ellis county, Tex., and also the locomo- for all time to come is altogether wanting tives, cars, equipment, trainmen, conductors, in the definiteness and certainty required, brakemen, crews, and other employés which are both as to what is meant by 'division terused or are to be used and officials as are neces- minus,'” and as to the equipment and emsary in such division terminus operations or on trains so reconstituted at Ennis, Tex., traffic of ployés, etc.; (4) there was nothing in the an extraordinary or unusual nature and em-contract as to the number, character, and ployés whose employments and runs are from the run of trains, the nature of business reEnnis to points north or from points north to quired to be constantly changing, etc.; (5) Ennis being excepted"(a) Because of the reasons already given.
the enforcement of such a decree, involving, "(b) Because, even if the contract upon which as it does, supervision in the last analysis the plaintiffs rely was held to be perpetual, and by the court of a situation intensely comit was held that this contract was binding upon the defendant, it nowhere contains any obliga- plicated and constantly changing, is contion requiring the defendant to maintain any trary to usages and practice; (6) it covers character of train schedules or system or plan trains belonging not only to what was forof running or changing crews or engines or fixing the end of the runs of its trainmen, and merly the middle division, but to all parts there is nothing in the contract which would of the defendant's property, provided only prevent or prohibit the defendant from changing that they pass through Ennis; (7) that the the run of its trains or of its train crews when- keeping and maintaining of said “division ever and in whatever way it pleases.
"(c) Because the contract referred to did not headquarters” for 23 years at Ennis was a bind or purport to bind the receiver or this de- sufficient compliance with the contract; (8) fendant to keep (1) the 'trainmen, conductors, “the judgment in the particulars here combrakemen, crews, and other employés,' or (2) plained of is supported neither by the con'the locomotives, cars and equipment referred to in this portion of the decree, at Ennis, and the tract nor by the finding of the jury.” injunction upon this defendant thus to do is The first part of the judgment properly entirely outside of and beyond the scope of the construes the contract, and then particularobligation mentioned.
izes how it is to be observed, and it is not "(d) The portion of the judgment quoted is indefinite and uncertain, and for a decree oper
Under the contract the railway ating for all time to come is altogether wanting company was to maintain its division headin that definiteness and certainty which is re- quarters at Ennis, and under the evidence it quired, and is in this respect unreasonably bur- was shown that by such a provision, quotdensome and oppressive on the defendant, and is ing from the testimony of Cecil Faris, is so indefinite and uncertain as to practically transfer the operation, direction, and control of meant: the defendant's property at this point from its "The meaning of that term is clearly the head officers to the court.
of the division, 'where the superintendent's of"(e) Because the number and character and fice and roundhouses and division terminal are, the run of trains is, and by nature of the busi-l and include the superintendent's office and the
dispatcher's office and lay-over for crews, where were included in the necessary maintaining the crews change ordinarily; also the repair of headquarters at Ennis, and the court shops for the cars and engines, sometimes, the roadmaster and the roundhouse.' If I were going
properly so held. The middle division of to define the term division headquarters,' i the Houston & Texas Central Railroad Comwould say it includes the superintendent's office pany mentioned in the contract and referred and his assistants, the dispatcher's office and to in the judgment was fixed by the autheir necessary forces or clerks necessary to han- thorities of the road to run from the tract dle the division, the roundhouses and repair shops. It would also include the conductors, of land on which the machine shops are lobrakemen, firemen, and engineers that would cated about a mile just north of Ennis and stop there at the division terminal., My defini- extending south to Hearne, Tex., and Ennis tion of the division headquarters' sometimes means all of the conductors, all of the firemen, has ever since that time remained the divibrakemen, engineers, all of the superintendent's sion arrangement from Hearne to Ennis and forces, dispatcher's forces, all of the employés from Ennis to points north and west, and of the roundhouses, employés of the machine with slight modification Ennis has been the shops, and the roadmaster, and ordinarily takes in the section foreman. A division terminal is administrative point for handling train movewhere tlie crews lay over.”
ments through the system from Hear ne Construing the judgment as a whole, it is north to Denison, and northwest to Ft. only intended to compel the railroad com- | Worth. In construing the contract the court pany to enforce the contract according to its properly construed the middle division, and legal effect, that is, that the railroad com
the judgment properly protects the railroad pany should continue as it had done, to company's interest in this language, the rekeep and maintain its division headquarters quirements of the system north of Ennis, “in at Ennis in a reasonable and consistent case the railroad shall desire to set up divimanner, and the particularization of judg- sional administration of them at some point ment was placed therein to guard against the north of Ennis." violation thereof, and, as contended by ap
 By their ninth assignment appellants pellees' counsel:
complain that: "It is apparent that the paragraph of the
"The court erred in that part of its judgment judgment complained of does not undertake to in which it ordered that this defendant, 'its sucfix the character of appellant's train schedules cessors and assigns, do now and continuously nor its system or plan of running or changing hereafter keep and maintain in the city of Encrews or engines, nor the length of train runs, division headquarters, machine shops, and
in perpetuity, its etc., as asserted in appellant's first proposition. It simply undertakes substantially to preserve roundhouses for that portion of its railway sysonly the division terminus operations and all tem which composed the former middle division of the equipment and employés that are referred of said railroad company, all comprising and into in it, viz. those only which are necessary in cluding the departments, facilities, employés, orsuch division terminus operations, or on trains ganization, etc., of said portion of its railway which make Ennis their division point for being system as follows;'. [the giving six paragraphs, reconstituted, and that even those admonitions lettered respectively (a), (b), (c), (d), (e), and (f), are expressly limited so as to exclude therefrom which lettered paragraphs are identical with partraffic, equipment, and employés which might agraphs of said decree of the same letters copied preferably be handled at points north of Ennis,
herein)this exception being provided in order that the
*(a) Because of the reasons for refusing to decree might not be thought to cover more than grant a specific performance of the contract althe former middle division."
“(b) Becuase the language here quoted is The enjoining appellant from discontinu- vague, indefinite, and uncertain, and is not of ing its division terminus operations is not that definiteness and certainty which is required indefinite or uncertain, and it can conform of a decree in the nature of one of specific per
formance, to it substantially by proper effort; nor is spect in such a decree which purports to contin
and all the more deficient in this reit so intensely complicated as to require the ue for all time to come. supervision of the courts, if the railroad "(c) Because each of the lettered paragraphs company makes a bona fide effort to comply is erroneous for the reasons stated with respect with the terms of the contract. There being and defendant prays leave to refer to said rea
to each respectively heretofore given herein, no time fixed in the contract for its termina- sons in this connection." tion, it was not error in the court to con
Under this assignment three propositions, strue it to run perpetually; the evidence
as follows, were submitted: showing that the public interest demanded
First. "If it were a proper construction of no change.
the contract that the receiver agreed to establish  There is no error in the terms that the division headquarters, machine shops, and "enjoining and restraining the railroad com roundhouse at Ennis, and never more them pany perpetually from ceasing to keep or
therefrom, such a contract embracing what was
found by the court below to be embraced theremaintain and from removing or causing to in, would, except as to the machine shops and be removed from the city of Ennis the su- roundhouse, an exception as to which has been perintendent and assistant superintendent of specially made by statute, be incapable of being trains and chief dispatchers with their of- ordered to be specifically performed, because not ficers and office forces described in the judg- the constant supervision of the court."
capable of present performance, and requiring ment." By the terms of the contract the Second. "If it were a proper construction of railroad company was to “establish and the contract that the receiver agreed to estabmaintain division headquarters at Ennis,” and roundhouse at Ennis, and never more them
lish the division headquarters, machine shops, and according to the evidence such employés therefrom, such a contract embracing what was
found by the court below to be embraced therein, In Schmidtz v. Railway Co., supra, on the
"It seems clear to us that there is no ade cause appellees have an adequate remedy at quate relief for the bondholders to be had, exlaw."
cept by a specific enforcement of the contract; Third. "If it were a proper construction of hence the important question to be considered the contract that the receiver agreed to estab- is the power of the court to enforce specifically lish the division headquarters and machine the contract, and whether the same, in equity, shops and roundhouse at Ennis, and never move should be enforced. As before said, there is them therefrom, the contract, as construed by some authority cited which sustains the contenthe court below, is too indefinite and uncertain tion of appellee that courts of equity cannot or to be made the basis of a decree for specific per- ought not to specifically enforce a contract formance."
requiring skill and long or continuous supervi
sion of the court, but it is insisted by appellant Under the circumstances of this case we contentions that such contracts can and ought
that the weight of recent decisions sustains its are of the opinion that the lower court prop- to be enforced, and he cites several decisions in erly rendered a decree of specific perform- support of this contention, among which is,” etc. ance. In this state our courts have jurisdic- (citing and discussing numerous important
cases). tion of both law and equity, and if there is
“It seems to us that the weight of modern auno remedy at law for its enforcement, we thorities sustains the contention of appellant, are of opinion that a remedy existed in eq- and a court of equity can enforce specific peruity for specific performance of the contract. It is pretty well known history of the country
formance of the contract under consideration. Tyler v. Railway Co., 99 Tex. 491, 91 S. W. that many railroads, and for long terms, have 1, 13 Ann. Cas. 911; Railway Co. V. Ander- been operated under the direct supervision and son County, 150 S. W. 239; Railway Co. v.
control of courts of equity. It does not seem Anderson County, 106 Tex. 60, 156 S. W. execution of the contract under consideration.
to us that it would be difficult to enforce specific 499; Railway Co. v. Anderson County, 174 The court may enforce its orders by attachment S. W. 305; Mosel v. Railway Co., 177 S. W. or rule according to equity practice, or, if deem1048; Joy v. St. Louis, 138 U. S. 1, 11 Sup. ed best, it might place the road in the hands of
a receiver.” Ct. 243, 34 L, Ed. 813; Railway Co. v. D. & R. G. Railway Co., 143 U. S. 596, 12 Sup.
Appellants' tenth assignment of error and Ct. 479, 36 L. Ed. 277; Telegraph Co. v.
the proposition thereunder are: Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 36 favor of the defendant because the plaintiffs, for
“The court erred in not entering judgment in L. Ed. 776; Union Pacific Co. v. Railway reasons above pointed out, were not entitled to Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. a judgment of specific performance with respect 265; Schmidtz v. Railway Co., 101 Ky. 441, to the facilities referred to in the petition, other
than the shops and roundhouse, and were not 41 S. W. 1015; Railway Co. v. Franklin, 96 entitled to a decree of specific performance with Va. 693, 32 S. E. 485, 44 L. R. A. 297.
respect to these, for the same reasons, and for In Tyler v. Railway Co., supra, we have the further reason that the contract upon which a case in line with the instant one. Mr. Jus- road company but that of the receiver of such
the plaintiffs rely is not the contract of a railtice Brown in that case, in speaking for the company, and the statute upon which the plaincourt, says:
tiffs rely is not applicable."
Proposition: “In the absence of such a stat-
"It is claimed that the enforcement of such retained and kept possession of the property,
until Dillingham was discharged. The fed
eral court on December 24, 1890, decreed in ,tractual or resulting from torts, or otherwise, passing on the motion to delay in delivering incurred by the receiver or receivers appointed the property to Olcott, among other things, by this court in the above-entitled cause, and
as the same may be fixed and determined by as follows:
this court." "It is further ordered that such property nev
Various other orders were made in relaertheless shall be delivered and received by said Olcott, or his assigns, subject to and charged tion to claims affecting receivers in said suit. with the obligations and liabilities contractual On March 21, 1900, in order for final and by the receiver or receivers appointed by this by said court, it made provision with referor resulting from torts or otherwise incurred complete settlement, after notice was given court in the above-entitled cause and as the same may be fixed and determined by this court, ence to reserved jurisdiction as follows: and also subject to the right which this court "And all controversies in this cause having reserves to charge upon the property or any been finally determined, the same is hereby clospart thereof."
ed, and no further petitions, motions, or other Olcott and his associates formed a corpo- applications shall be filed in this cause, except ration for the purpose of taking over said and to the purchaser, Frederick P. Olcott, fol
upon due notice to the complainants, defendants, Houston & Texas Central Railway Company lowed by order of the court granted after such under their purchase, and it was chartered notice.” under the name of Houston & Texas Rail Said order also provided: road Company, under which name the de “Charles Dillingham shall be and without furfendant railroad company has been operating ther order stand finally relieved and discharged ever since. Olcott having purchased the as receiver herein, and thereupon, and without
further order, his bond or bonds as receiver property under an order of the court and al- herein shall be canceled, and he and his sureties lowing it to remain in the hands of Dilling upon such bonds shall be and thereupon become ham and be operated and handled for 01- finally and forever discharged of and from all cott's convenience and advantage, Dilling- further
, obligation or liability on such bond or
bonds." ham became his agent, and the appellant Railroad Company is liable for the contracts
No further action was taken in said cause made by the receiver in relation to the ap- until after this suit was brought in Ellis pellant road. Bath v. Railway Co., 17 Tex. county, when appellants, on June 7, 1915, filCiv. App. 697, 44 S. W. 595; Railway Co. v. ed a "supplemental bill” in the said United Crawford, 88 Tex. 277, 31 S. W. 176, 28 L. States court, making appellees defendants R. A. 761, 53 Am. St. Rep. 752; Railway Co. and seeking an injunction to prevent appelv. Strycharski, 168 U. S. 706, 18 Sup. Ct. lees from prosecuting this suit in Ellis coun943, 42 L. Ed. 1213.
ty. This plea was disposed of by the said  It is assigned as error, and the propo- United States court at a hearing on June sition submitted thereunder, that:
28, 1915, by denying the injunction for want "The court erred in not sustaining the plea of jurisdiction. of the defendant to the jurisdiction of the court  The appellees in this suit were never as the same appears in the second amended parties to the receivership suit in the United original answer of the defendant, and in other States court, and that court having, in 1900, pleadings of the defendant, the undisputed evidence showing that the allegations made in said finally closed said suit, and having theretoplea are true."
fore, in 1893, discharged the receiver, and Proposition: “Appellant had the right to have all matters pertaining thereto before the the question of its liability, if any, growing out of the contract of the receiver dated December court having been disposed of, the court, by 6, 1890, determined by, and only by, the United way of precaution, retained jurisdiction to States District Court for the Southern District adjudicate any claim that might affect the of Texas, as the successor of the United States Circuit Court for the Eastern District of Texas, action of the receiver. No such matter for and the plea to the jurisdiction of the district over 20 years affecting the receiver arose, court of Ellis county should have been sus nor does the controversy herein involve him, tained.”
but said controversy involves only the appelAppellant's plea to the jurisdiction of the lants and appellees and the district court of district court of Ellis county, which tried Ellis county bad jurisdiction to adjudicate this case, contends that jurisdiction was held it. Further, the railroad company is estopby the United States Circuit Court for the ped from making any claim of exclusive juEastern District of Texas in consolidated risdiction in the United States court by an cause No. 198, styled Nelson S. Easton v. act of the state Legislature enacted in 1889, James Rintoul, Trustee, et al., in which Dil- from which it obtained its charter, and waiv. lingham was one of the receivers. It makes ed its right to make such a plea. Chapter 24, various statements of different orders made by said United States court, and that said court retains jurisdiction to adjudicate all exclusive right of being sued in the federal
(10) Again, appellants, if entitled to the suits in relation to controversies over con- court, waived such right by not presenting tracts made by the receivers of that court. such plea in time. The record shows that: One order made by the United States court
“Appellant's plea to the jurisdiction of the was as follows:
state court setting up its claim that the fed"It is further ordered that such property eral courts had exclusive jurisdiction over it nevertheless shall be delivered to, and received was submitted to the court and determined June by, said Olcott or his assigns, subject to, and 11, 1915. No facts are shown to have been then charged with, the obligations and liabilities, con- presented to the court, and no bill of exception
was preserved. The remainder of the case was , of which do we believe of such gravity as to thereupon continued without prejudice to appel- require a reversal of the case. lant's plea of privilege and plea of misjoinder. Plaintiff's second amended original petition,
We consider the evidence sufficient to supornitting all particular reference to the order of port the judgment of the lower court, and it December 24, 1890, was filed June 14, 1915. is affirmed. Cause was continued for the November term,
Affirmed. 1915, by order dated November 11, 1915, by agreement of parties, with the same reservation of rights as contained in the order of June 11, 1915. Plaintiff's third amended original petition was filed January 10, 1916. The cause MASSINGILL V. MOODY et al. (No. 307.) was tried upon this petition. Appellant's sec ond amended original answer was filed Janu- (Court of Civil Appeals of Texas. Beaumont. ary 10, 1916. The cause was tried upon this
Feh. 21, 1918.) answer. In it appellant again asserted its plea 1. BOUNDARIES EM 47 (1)-ESTOPPEL. of federal jurisdiction, its plea of privilege, its pleas of misjoinder, and its answers to the mer two tracts, and conveyed one by deed, after hav
Where plaintiff's ancestor in title owned At the trial of the cause, on January 25, ing the land surveyed, or after pointing out the 1916, appellant filed motion, praying the court to sustain its plea asserting exclusive federal lines, plaintiff would be bound thereby. jurisdiction, as contained in its second amend- 2. TRESPASS TO TRY TITLE 45(1)-INSTRUCed original answer, filed herein on January 10,
TIONS-CONFORMITY WITH EVIDENCE. 1916. It bears notation as follows: ‘Motion
In trespass to try title by one who took by presented in due time and same overruled, to inheritance from his mother and gift from his which defendant excepts. F. L. Hawkins, father, instruction that he could not recover Judge.' No bill of exceptions on this point was unless his father could was not erroneous as preserved. The final judgment, referring to said instructing to find for defendant because the plea to the jurisdiction, recited 'that the same father was making no claim. and each and all of them, including the plea 3. APPEAL AND ERROR O 232(2)_OBJECTIONS to the jurisdiction and the plea of privilege, IN LOWER COURT-EVIDENCE-PLATS. should be and are overruled, to which the said In trespass to try title, where defendant ofdefendants each except.'
fered a deed which referred to a plat, and the
plat, as an integral part of the deed, which was See Revised Statutes, arts. 1902, 1909, received without objection, error could not be 1910; Rule 7, District and County Courts; predicated on admission of the plat, as being a Townes' Texas Pleadings (20 Ed.) pp. 517- written instrument not proven up by competent 529; Railway Co. v. Harlan, 62 S. W. 971.
4. EVIDENCE m474(1)-OPINIONS-KNOWL(11] Appellant complains that:
EDGE. “The court erred in refusing to sustain the In trespass to try title, where one claimant plea of privilege of the defendant, as the same testified that he had previously seen a certain appears in the second amended original answer, map, and that a road shown thereon had been and the other pleadings of the defendant: (1) pointed out to him, his statement that the map Because the pleadings of the plaintiff and the looked all right to him was admissible as upon undisputed evidence show said action to be a sufficient qualification. suit for injunction, and not a suit for specific 5. TRESPASS TO TRY TITLE 59—EVIDENCEperformance; (2) because the individual defend ADMISSIBILITY. ants herein, who are residents of Ellis county, In trespass to try title, there was no error are neither necessary nor proper parties to this in admitting defendants' testimony as to what suit, and are not such parties as would draw they were told as to title on the issue of their the venue of this suit to the county of their good faith in making improvements. residence, and thereby deprive the defendant of 6. EVIDENCE EM 474(15)-OPINIONS-KNOWLits privilege to be sued in Harris county, Tex.,
EDGE, the county of its residence; (3) because the undisputed evidence shows that the individual dicial error in permitting witnesses to testify
In trespass to try title, there was no prejudefendants were fraudulently made parties de- as to the appearance of cuts and marks on trees, fendant herein for the purpose of fixing the and the age thereof; such being matters of comvenue of this suit in Ellis county.”
mon knowledge. The purpose of this suit is to enforce the 7. APPEAL AND ERBOR Om634PERFECTING
RECORD. contract sued on, and the writ of inju tion Where the files were lost, and appellant is but an ancillary proceeding, and, as con- made no attempt to substitute records under tended by appellant, the injunctive venue
Vernon's Sayles' Ann. Civ. St. 1914, arts. 2157statute (article 4653) does not necessarily error, he was not entitled to remand for new
2163, and his bills and assignments showed no control, but jurisdiction was given under ar- trial "to permit intelligent consideration by the ticle 1830. Railway Co. v. Anderson County, Court of Civil Appeals.” 150 S. W. 239; Tyler v. Railway Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911.
Appeal from District Court, Angelina CounThe individual defendants resided in Ellis ty; L. D. Guinn, Judge. county, and the evidence showing Costello to
Action by G. W. Massingill against E. be a proper party, and the other individuals Moody and others. Judgment for defendhaving
en dismissed, it renders the ques- ants, and plaintiff appeals. Affirmed. tion of being fraudulently made parties un Wright & Jordan, of Lufkin, for appellant. important, as jurisdiction was properly at. I. D. Fairchild, of Lufkin, for appellees. tached in that county.
Quite a number of assignments of error BROOKE, J. Appellant instituted this have been presented that we have not dis- suit against appellees as an ordinary suit of cussed, but all have been considered, none į trespass to try title, and for damages, and
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