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In a suit for an injunction, defendant's agents and employés could not be enjoined, unless made parties by the petition.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*] 3. DISMISSAL AND NONSUIT (§ 26*)- NONRESIDENT DEFENDANTS-PROCESS-FAILURE TO SERVE.

On a bill to enjoin tort-feasors, when one of the defendants resides beyond the jurisdiction of the court, and has not been served with process, the suit may be dismissed as to him and proceed as to the other.

[Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 46, 48-59; Dec. Dig. § 26.*]

2. INJUNCTION ( 114*)-PERSONS WHO MAY on the land of appellant, then they should BE ENJOINED NECESSITY OF JOINING AS have been joined as parties defendant, and PARTIES. the writ issued against them. Parlin v. Miller, 25 Tex. Civ. App. 190, 60 S. W. 881; Kirkpatrick v. Bank, 148 S. W. 362. On the bill to enjoin tort-feasors when one of the defendants resides beyond the jurisdiction of the court, and has not been served with process, the suit may be dismissed as to him, and proceed as to the other. High on Injunctions, § 1564. So, where there are persons whose interests are affected, they should be made parties, but, if they cannot be reached by process of the court, the bill should be dismissed, unless it can be prosecuted alone against the other defendants. Minnesota v. Northern Securities Co., 184 U. S. 199, 22 Sup. Ct. 308, 46 L. Ed. 499. If Keys was out of the state, it is very questionable whether the court could exercise jurisdiction over him by writ, or, if it was served, enforce it. The petition wholly fails to show such parties and facts over which the court could exercise jurisdicDecker & Clarke, of Quanah, for appellant. tion. We think, under the pleadings presented, the district judge properly refused to grant the injunction. The case is affirmed.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by the Acme Cement Plaster Company against John C. Keys. From an order refusing an injunction, plaintiff appeals. Af

firmed.

HUFF, C. J. [1] This is an appeal from an order refusing an injunction, and a companion case to the case of Acme Cement Plaster Co. v. American Cement Plaster Co., 167 S. W. 183, No. 609 in this court. The

cause of action alleged is substantially the WILLIAMS v. J. W. CROWDUS DRUG CO. same as that alleged in No. 609. The appellant alleged:

(No. 5359.)

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"The Acme Cement Plaster Company, plaintiff, complaining of John C. Keys, defendant, represents that plaintiff is a corporation chartered under the laws of the state of Illinois, and has a permit to do business in Texas, and that the residence of defendant is unknown, but that he has agents and employés residing in Hardeman county, Tex., upon whom process may be served."

(Court of Civil Appeals of Texas. Austin. April 22, 1914.)

FRAUDULENT CONVEYANCES (§ 47*)-SALE OF STOCK IN TRADE-STATUTORY PROVISIONS. Under Rev. St. 1911, requiring a purchaser of a stock in trade to secure from the seller a verified list of his creditors, and to notify the creditors of the proposed sale, a sale of a stock is void as to a creditor of the seller whose name was omitted from the list furnishThe general allegation is that the defended to the purchaser, but which list was not verant and his agents and employés, over the ified by the seller, whether such omission was through mistake or actual fraud. protest of plaintiff, committed the trespasses therein complained of.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. § 47.*]

[2, 3] Appellant appears to have sought jurisdiction over Keys by alleging he has agents in Hardeman county. He is not alleged to be a corporation; therefore service must be had on him in person. The agents are not named in the petition. It is alleged that Keys and his agents were at that time committing the trespasses. Keys was not a resident of the county, and presumably not in the county, and personally he could not be guilty of the act. The agents were not made parties, and hence could not be enjoined. The citation could not be served on them and thereby bring Keys into court. We know RICE, J. In March, 1911, A. C. French, of no statute which authorized the writ of who was indebted to appellee, sold his stock injunction to be served on the agent. The of goods, then in the Owl Drug Store in San agents could not be a party, unless made so Angelo, to May Daniels, wife of A. C. Danby the petition, and could not be included in iels, who, in part payment therefor, assumed the injunction writ. Fellows v. Fellows, 4 and promised to pay appellee's indebtedness Johns. Ch. (N. Y.) 25; Scott v. Donald, 165 U. against French. In September next thereS. 107, 17 Sup. Ct. 262, 41 L. Ed. 648. If after Mrs. Daniels, acting by and through Keys, through his employés, was trespassing her husband, sold said entire stock of drugs

Appeal from Tom Green County Court; Oscar Frink, Judge.

Attachment by the J. W. Crowdus Drug Company against A. C. Daniels and another, in which R. L. Williams filed a claimant's oath and bond. Judgment for the plaintiff, and the claimant appeals. Affirmed.

S. C. Autry, of San Angelo, for appellant. Thomas & McCarty, of San Angelo, for appellee.

session by virtue of such sale or transfer.

to appellant. Prior to such sale, however, he | chandise that may have come into his poshad demanded, and she had agreed to furnish him, a complete list of her creditors; but the list so furnished was incomplete, in that it did not mention appellee's claim, and was not verified, in consequence of which appellee was not notified of such contemplated sale, and did not learn of it until long thereafter. In December following appellee filed suit against A. C. Daniels and his wife, May Daniels, on the French indebtedness which had been assumed by her, and thereafter caused a writ of attachment to be issued and levied upon a portion of said stock of drugs in the possession of appellant. Thereupon appellant filed his claimant's oath and bond with A. C. De Long and S. Kistler as sureties, which writ of attachment, with sheriff's return thereon, and claimant's oath and bond, were filed in the county court of Tom Green county. The case coming on for trial, the issue was whether or not said sale from Daniels to appellant was void under the "Bulk Sales Law." There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted.

The proof shows that, while appellant requested Mrs. Daniels and her husband to furnish him with a list of her creditors, as required by the statute, and a list was in fact furnished by them to him, still such list did not conform to the statute, in that it was not verified, and omitted the name, claim, and residence of appellee. It is true that this omission is sought to be excused by the seller on the ground that the bookkeeper furnished the list from the books, and that the books did not show such claim, and that Mr. Daniels refused to verify the account for the reason that he did not keep the books, and did not know whether such list was correct or not. Frequent statements of appellee's claim had been mailed to them, and the assumption of the account was of recent date, and the husband, who was acting for the wife must be presumed to have known that it had not been paid; and, while appellant had no other means of knowing whether the list contained the names of all the creditors, still he knew it was not sworn to, and received the same with such knowledge. This fact, and the refusal on the part of A. C. Daniels to verify same, was sufficient to excite further inquiry on his part. The statute makes it the duty of the seller, on demand, to furnish a complete list of his creditors. It also requires such list to be sworn to, and declares that, if this is not done, the sale shall be void. We think it is immaterial whether the omission was made through mistake or not. The parties are presumed to have known the law, and in this case it appears that they actually knew of the statute and contracted with reference thereto, and must be held bound thereby. And since the statute declares that all such sales not made in conformity thereto are void, we are constrain

On the trial the court, in effect, instructed the jury to find for appellee, if they believed Mrs. Daniels was indebted to it on the French claim, the payment of which had been assumed by her, and for which judgment had been rendered in its behalf against her and her husband. Appellant requested, and the court refused to give, several charges, the substance of which was that, if Mrs. Daniels, or her agent, in making out the list of creditors, failed to place the name of the appellee on the list by mistake, or if they did not know at the time of making such list and sale that appellee was a creditor of said May Daniels, then and in that event plaintiff would not be entitled to recover.

Article 3971, R. S. 1911, known as the ed to hold that the sale in the present in"Bulk Sales Law," reads as follows:

"Any sale or transfer of any portion of a stock of merchandise, otherwise than in the ordinary course of trade in the usual and reguar prosecution of the seller's or transferer's business, or a sale or transfer of an entire stock of merchandise in bulk, shall be void as against creditors of the seller or transferer, unless the

purchaser or transferee shall, at least ten days before the sale or transfer, in good faith, make full and explicit inquiry of the seller or transferer as to the name and place of residence or place of business of each and all creditors of the seller or transferer, and the amount owing to each such creditor by the seller or transferer, and obtain from the seller or transferer a written answer to such inquiries, which answers shall be sworn to by the seller or transferer, and unless the purchaser or transferee, at least ten days before the sale or transfer, in good faith, notify or cause to be notified personally, or by registered mail, each of the sell

er's or transferer's creditors, of whom the purchaser or transferee has knowledge, of said proposed sale or transfer."

Article 3972, Id., provides that any purchaser conforming to the provisions of said article shall not be held accountable to any

stance was invalid as against appellee, and that the court properly refused the special charges requested. And this is true, irrespective of whether such omission to comply with the law was occasioned by actual fraud or not; the failure to comply with the statute being sufficient to invalidate the sale, appellant having knowledge of such failure, as held by Mr. Chief Justice Brown in the case of Nash Hardware Co. v. Morris, 105 Tex. 217, 146 S. W. 875. See, also, article 3971, supra; Daly v. Sumpter Drug Store, 127 Tenn. 412, 155 S. W. 167; Cantrell v. Ring, 125 Tenn. 472, 145 S. W. 166; Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 15, 62 S. E. 88. Mr. Chief Justice Fish, in the latter case, involving a statute of Georgia somewhat similar to our own, in effect, said that, irrespective of the question as to whether the sale was in fact made with intention to defraud creditors, it must be held void, because the requirements of the statute enacted for the protection of creditors had

Finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.

TUTING.

MEREDITH v. MITCHELL. (No. 7156.) (Court of Civil Appeals of Texas. Dallas. May 9, 1914. Rehearing Denied May 30, 1914.) ADVERSE POSSESSION (§ 13*)-ACTS CONSTIWhere plaintiff and those under whom he claimed resided about four miles from the tract in controversy, and the tract was never occupied by them or by a tenant and was not fenced or improved, and the only visible claim of right of ownership was the cutting of timber and converting it into lumber and for firewood, and the cutting of timber was not continuous for ten years, there was no such adverse possession as ripened into title, though plaintiff showed payment of taxes for over ten years and until the holder of the legal title set up his claim.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. $ 13.*]

claiming the land until Mitchell got on the land. That he cut timber one year, after the same mill quit running, from the land to fence 100 acres of land. That he got the timber from his grandfather and split it to rails one-half for the other."

L. Davidson, of Canton, and J. N. Starr, of Athens, for appellant. T. R. Yantis, of Canton, and Wynne, Wynne & Gilmore, of Wills Point, for appellee.

RAINEY, C. J. This is an action of trespass to try title to a tract of land in Van Zandt county, Tex., and the only issue presented is whether or not appellant is entitled to recover on the ground of ten years' limitation.

It is admitted that appellee holds the land by virtue of superior legal title, and entitled to recover unless appellant has held said land by adverse possession under a claim of right for a period of ten years.

The character of appellant's possession of the land is shown by the following

J. C. Meredith, witness for plaintiff, G. C. Meredith, testified that:

"The land was bought by my grandfather and father the same year I was born, but before I was born; that his father and grandfather had owned the land ever since he could remember; that they have been cutting and using the timber from the land all the time, every year since he could remember; that he helped cut timber from the land as soon as he was large enough to help his father and grandfather; that he had always known the land as his father's and grandfather's land, and never knew of any one else claiming the land; that the land was generally known in the country where the land lay as the Meredith land; that the claim of ownership of his father and grandfather was open and notorious, and so were all their acts of possession and use of the land."

Action by G. C. Meredith against T. J. Mitchell. From a judgment for defendant, plaintiff appeals. Affirmed.

"He had been in Texas 25 years. That he settled not a great distance from the land in controversy, and soon after he came to Texas Appeal from District Court, Van Zandt he learned that this land belonged to E. MereCounty; R. W. Simpson, Judge. dith and G. C. Meredith. That they hauled saw he had seen them hauling saw stock from the stock from the land right by his house. That land every year for a number of years, and that this was constant and continued for many years. That he bought some timber from the land from G. C. Meredith about 15 years ago. That the Merediths and their claim of ownership was open and notorious, and that he never heard of any one else claiming the land until Mitchell got on it. That it was timber land. That, when he first came to this country, lands upon the hills were worth some $3 per acre, but the it being low wet land in the back woods and not land in controversy was not worth so much; so desirable."

Jeff Davis, a witness for plaintiff, G. C. Meredith, testified that:

G. C. Meredith, plaintiff, testified in his own behalf that:

mony:

"Jim Meredith, witness for plaintiff, G. C. Meredith, testified that his grandfather and father owned a sawmill located about four miles from the tract of land in controversy, and bought the land for its timber to saw into lumber and for building and fencing timber for their home place. That they cut timber from the land all the time so long as they run the sawmill, which was eight or ten years, and sawed same into lumber, and my father has cut timber from the land every year, since the sawmill quit running, to keep up his farm and residence until Mitchell got on the land. That he tried to fence Mitchell out, but that Mitchell run him off with a double-barrel shotgun. Mitchell told him that he had to get off. I said to him I did not think I had to get off, but I reckon I can get off. That everybody living in the settlement where the land lay knew the land as the Meredith land. That he had always known the land as his grandfather's and father's land, and never heard of any one else

"My father and Mr. Morris bought the land from the old man Morris. That the young Mr. Morris wanted out of it and I bought him out. That the land was desirable only for its timThat there was no timber on their home place ber, and that they bought it for its timber. suitable for building and fencing purposes, and that they bought the land for its timber to suptesti-ply their sawmill in saw stock, and for building and fencing purposes on their home place. That he knew it was a tax title, but believed it a good title and believed it was his land. That he and his father owned a sawmill located about four miles from the land, and that they cut and hauled the timber from the land to their sawmill for eight or ten years and sawed same into lumber, until they cut about all the timber from the land suitable for saw stock, and after they quit running the sawmill he continued to cut and use the timber from the land every year and all the time for building and fencing purposes for his home place until Mitchell set up his claim and got on the land. That he kept others off the land, and that he had an occasion one time to move some parties off who were attempting to cut timber from the land. He told them that they were on his land and they moved off. That he sold some timber to other parties and kept others off only as they bought from him. That his claim was open and notorious, and that he never heard of any one else claiming the land until Mitchell set up his claim. That the land was generally known in

the country where the land lay as his land. That the land lay in a low level section of country near the swamps of Kickapoo creek. That there was no farms nor residences in that immediate section, and that he would not live on

the land for it.".

Tax receipts were in possession of plaintiff, G. C. Meredith, and exhibited on the trial of the case showing payment of the taxes on the land every year since 1883, until the year 1911, when Mitchell set up his claim.

It is shown that appellant and those under whom he claims resided about four miles from the land; that it was never occupied by appellant nor by a tenant. It was never fenced, nor are there any improvements of any character whatever placed thereon. The only visible claim of right of ownership was the cutting of timber and hauling it off for couverting it into lumber and for firewood. seems that this cutting of timber to be converted into lumber was not continuous for the period of ten years.

It

The evidence, we think, fails to show such adverse possession as contemplated by the statute for title to have ripened in appellant by the statute of ten years limitation. Brackin v. Jones, 63 Tex. 184; Satterwhite v. Rosser, 61 Tex. 166; Sellman v. Hardin, 58 Tex. $6.

In Sellman v. Hardin, 58 Tex. 86, where the facts of possession are very similar to those in this case, but stronger to show an appropriation of the land, Justice Stayton

held:

"The evidence was not sufficient to show such adverse possession as would sustain his plea of limitation."

The judgment is affirmed.

handled while being transported over the line of the first carrier.

Austin.

[Ed. Note.-For other cases, see Carriers,
Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]
3. APPEAL AND ERROR (§ 877*)—PARTIES EN-

TITLED TO COMPLAIN-ERROR FAVORABLE TO
COPARTY.

In an action against two connecting carriers for injuries to cattle during shipment, where judgment was rendered against the second carrier, it may complain on appeal of error in giving, at the request of the first carrier, an instruction that the evidence did not warrant a finding that the cattle had been roughly handled by the first carrier.

HOUSTON & T. C. R. CO. v. HAWKINS &
NANCE et al. (No. 5334.)

(Court of Civil Appeals of Texas. April 15, 1914. Rehearing Denied May 27, 1914.)

Action by Hawkins & Nance and others against the Houston & Texas Central Rail

In Brackin v. Jones, supra, it is said: "It is a general rule that, where a person re-road Company and the International & Great lies upon naked possession as a foundation for an adverse claim to land, there must be an actual occupancy, and beyond this the possession cannot be extended."

Northern Railway Company. Judgment for the plaintiffs against the defendant the Houston & Texas Central Railroad Company and against the plaintiffs and in favor of the International Great Northern Railway Company, and the Houston & Texas Central Railroad Company appeals. Affirmed in part, and reversed and remanded in part.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*]

4. TRIAL (§ 194*)—INSTRUCTIONS-Weight of

TESTIMONY.

In an action against connecting carriers for injuries to cattle during a shipment, a charge that there was no evidence which would warrant a finding that the cattle were roughly handled by the first carrier, where there was evidence from which that fact might have been inferred, was a charge upon the weight of testimony which is prohibited by statute.

1. EVIDENCE (§ 489*) - OPINION EVIDENCE MIXED QUESTION OF LAW AND FACT.

In an action for injuries to cattle during a shipment, an opinion by the plaintiff as to what would have been the reasonable value of the cattle if they had been transported to the place of destination within a reasonable time and with ordinary handling involves both a question of law and fact and is inadmissible.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2274; Dec. Dig. § 489.*]

2. CARRIERS (§ 230*) CARRIAGE OF LIVE STOCK-ACTIONS FOR INJURIES SUFFICIENCY OF EVIDENCE.

Appeal from Hays County Court; J. R. Wilhelm, Judge.

Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellant. Will G. Barber and R. E. McKie, both of San Marcos, for appellee Hawkins and Nance. Fisher & Fisher, of Austin, and Wilson, Dabney & King, of Houston, for appellee International & G. N. Ry. Co.

KEY, C. J. Appellees Hawkins & Nance brought this suit against the Houston & Texas Central Railroad Company and the International & Great Northern Railway Company to recover damages alleged to have been sustained to a shipment of stock cattle from Waller to Kyle, Tex. There was a jury trial, which resulted in a verdict and judgment for the plaintiffs against the Houston & Texas Central Railroad Company, and that the plaintiffs take nothing as against the other defendant, and the Houston & Texas Central Railroad Company has appealed.

Hawkins

& Nance are not complaining of the judgment in favor of the International & Great Northern Railway Company, and that judgment

In an action against two connecting car-will be affirmed.

riers for injuries to cattle during a shipment, [1] Holding that the other assignments do evidence held sufficient to take to the jury the question whether the cattle had been roughly not point out reversible error, we sustain the

skinned up; that one cow had her hock knocked out of place, which he thought was done after they were unloaded at Austin; that one calf was badly trampled, and died after it got to the pasture; that, when he took the cattle from the pens at Kyle, about 50 of them were skinned up.

fourth and seventh assignments of error and | ed off, and the balance were hooked and reverse the case.. The bill of exception upon which the fourth assignment is predicated shows that the trial court admitted in evidence, over appellant's objection, testimony similar to that which was held not to be admissible in this class of cases in Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808. The bill shows that the court permitted the plain- So it seems there was some testimony tendtiff Hawkins, while testifying as a witness, ing to show that the cattle were not injured to give his opinion as to what would have at all when appellant delivered them to the been the value of the cattle at Kyle, the International & Great Northern Railway place of destination, if they had been trans- Company, and other testimony tending to ported "within a reasonable length of time show that only two of them were injured at and after ordinary and reasonable handling that time, while the testimony of the plaintiff en route." Conceding that a witness, who Hawkins tended to show that many others has qualified himself, may express an opin- were injured at the time the International & ion as to value, still it was decided by our Great Northern delivered the cattle to him Supreme Court in the Roberts Case, supra, at Kyle. Therefore we hold that there was that an opinion or conclusion similar to the testimony tending to show rough handling one under consideration involves both a ques- of the cattle while in possession of the Intion of law and fact, and therefore is not per-ternational & Great Northern Railway Commissible. pany, although its employés who handled the shipment testified that there was no rough handling, etc. And, such being the case, the court erred in giving the instruction complained of.

[3] It is true that the plaintiffs are not complaining of the action of the court in giving that instruction, but their failure to complain does not preclude appellant from complaining. If the charge referred to had not been given, it may be that the jury would have found that the International & Great Northern Railway Company was liable for some of the damages, which would have resulted in diminishing the amount of damages awarded against the Houston & Texas Central Railroad Company.

[2] The seventh assignment complains because the court gave a charge requested by the International & Great Northern Railway Company, instructing the jury that there was no evidence which would warrant a finding that the cattle were roughly handled while in possession of that defendant. The contract of shipment stipulated that the Houston & Texas Central Railroad Company was not to be liable for any injury or damage to the property after it was delivered to the connecting carrier, and the case was tried upon that theory, and the court so instructed the jury. There was testimony given by two witnesses who handled the shipment for the Houston & Texas Central Railroad Company, the initial carrier, to the effect that when the [4] It is also true that the charge referred cattle were delivered to the other defendant to did not instruct the jury that there was at Austin, Tex., they were in good condition; no testimony tending to show that the cattle and the agent of the International & Great were injured while in possession of the InNorthern Railway Company at Austin testi- ternational & Great Northern Railway Comfied that he knew of his own knowledge the pany, but instructed them that there was no condition of the cattle at the time he re-evidence which would warrant a finding to ceived them, and that, so far as could be that effect. But the fact remains that the seen, they were in good condition, with the charge was upon the weight of testimony, exception of two cows, one of which had a which is prohibited by statute; and therehorn knocked off and another had a diseased fore, in view of the testimony pointed out hind leg. He testified that both of those in- above, we hold that the giving of that charge juries appeared to have been caused before constitutes reversible error, as against apthe time the cattle were shipped. His testi-pellant. mony was corroborated by the agent of the International & Great Northern Railway Company at Kyle, but the plaintiff Hawkins testified that, when he received the cattle from the International & Great Northern Railway Company at Kyle, two cows had their hips knocked down, one a horn knock-part affirmed.

For the reasons stated, the judgment is reversed, and the cause remanded, as to appellant but affirmed as between appellees Hawkins & Nance and the International & Great Northern Railway Company.

Reversed and remanded in part, and in

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