this court erred in its former holding? It is | St. 1897, art. 1566, perform the duties of the not fair to the trial court, nor to appellee. office, provided he was the nearest justice. If these facts had been properly urged in [Ed. Note.-For other cases, see Justices of the motion for continuance, we must assume 73, 74.*] the Peace, Cent. Dig. §§ 236-242; Dec. Dig. §§ that the continuance would have been grant- 5. JUSTICES OF THE PEACE (§ 135*)—EXECUed, which would have resulted in a delay of TION-ISSUANCE-DIRECTIONS FOR RETURN. six months in the trial. Is it fair to appellee that he should be made to bear the additional burden of a further delay of 18 months, occasioned by the failure of appellant to set up these facts, now urged, in the application for continuance? We think not. We have gone into this matter at what may appear to be unnecessary length, in view of the entirely erroneous construction placed upon our opinion by counsel for appellant. The motion for rehearing is overruled. CHANCE v. PACE et al. (Court of Civil Appeals of Texas. Galveston. Nov. 9, 1912.) Under Sayles' Ann. Civ. St. 1897, art. 1657-1659, providing that writs of execution issued on justice's judgment shall be returnable in 60 days from date of issuance, a writ of execution, after the lapse of time in which it is the right of an officer, by virtue of the writ, to made returnable by law, is of no force; and take and sell property ceases from the date the writ is returnable. the Peace, Cent. Dig. 88 426-447; Dec. Dig. § 135.*] [Ed. Note. For other cases, see Justices of 6. PLEADING (§ 214*) — Demurrers SIONS. - ADMIS A petition tested by a general demurrer must be taken as true. [Ed. Note. For other cases, see Pleading, Cent. Dig. 88 525-534; Dec. Dig. § 214.*] Appeal from District Court, Jefferson County; W. H. Pope, Judge. Action by S. D. Chance against W. L. O'Fiel & O'Fiel, of Beaumont, for appellant. J. D. Campbell, of Beaumont, for ap pellees. 1. JUSTICES OF THE PEACE (§ 135*)-JURISDIC-Pace and another. From a judgment of disTION-AMOUNT IN CONTROVERSY-PLEADING. A petition in a suit to restrain an execumissal, plaintiff appeals. Reversed and retion sale under a justice's judgment, which al- manded. leged that the amount in controversy was beyond the jurisdiction of the justice, in that the suit was based on 20 notes of $10 each and 10 per cent. on the principal and interest as attorney's fees, and which averred that a credit of $45 had been allowed, but which did not state the date of the credit, or when the debtor was McMEANS, J. Appellant presented to Hon. entitled to it, did not show that the justice was W. H. Pope, judge of the district court without jurisdiction, where, if the credit accrued near the time of the filing of the suit, the principal and attorney's fees exceeded the jurisdiction of the justice; while if the right to the credit accrued and was allowed at the date of the notes, or within a year thereafter, the amount due, excluding interest, was within the jurisdiction of the justice. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447; Dec. Dig. 135.*] of Jefferson county, his petition for a writ of injunction to restrain the appellees from making sale of a piano belonging to him under an order of sale issued out of the justice court of said county. The court granted a temporary restraining order, and set the case down for hearing at a future date. On the hearing the judge sustained appellees' general demurrer to plaintiff's petition 2. JUSTICES OF THE PEACE (§ 135*)-ERRONE- and dismissed his suit, and from the judgOUS JUDGMENT-REMEDY. Where a defendant in justice's court made ment of dismissal plaintiff has appealed. no defense, though he knew for more than a Plaintiff alleged the following grounds for year before the judgment that the action was the issuance of the writ: (1) That the court pending, and he did not show any excuse for of H. E. Showers, justice of the peace, in failing to appeal or obtain relief by certiorari, injunction did not lie to restrain an execution which the judgment, under which the order sale under the judgment. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447; Dec. Dig. 8 135.*] 3. JUSTICES OF THE PEACE (884*)-WAIVER OF WANT OF SERVICE OF SUMMONS-APPEARANCE. of sale was issued, was rendered, was without jurisdiction, because the amount of the notes sued on was beyond the jurisdiction of the justice court, and the value of the piano foreclosed upon was greater than $200 at the date of the judgment, and that thereAn appearance by defendant in justice's fore the judgment was void; (2) that plaincourt for the purpose of obtaining a continu- tiff had not been served with citation and ance, and actually obtaining a continuance, is a waiver of the issuance and service of citation on him. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 266-278; Dec. Dig. § 84.*] had no notice of the pendency of the suit against him, but that if he had been served or had such notice the justice of the peace had promised him to continue the case from term to term, in order that plaintiff might 4. JUSTICES OF THE PEACE (§§ 73, 74*)-Ju-prepare his defenses, and that judgment was RISDICTION-ABSENCE OF REGULAR JUSTICE. finally rendered against him by default, withWhere the regular justice of the peace was sick, a justice of the peace in the same pre-out his being notified that such a judgment cinct could, as authorized by Sayles' Ann. Civ. would be asked; (3) that the judgment of the justice court was not rendered by H. E., accrued at or near the time the suit was Showers, the regular justice of the peace of filed, then the principal and attorney's fees the court in which the suit was filed, but together amounted to a sum beyond the juby another justice of the peace who was risdiction of the court; but if the right to holding court for said Showers at the time the credit accrued and was allowed at the of the latter's sickness and inability to pre- date of the notes, or within a year thereside over his court; and (4) that the order of after, the amount then due, excluding the sale by virtue of which the piano was seized interest, would be within the jurisdiction of by the constable was at the time of the sei- the justice court. In the absence, then, of zure functus officio. an allegation showing when the payment was made which entitled the appellant to the credit, we think the petition is insufficient to show that the amount sued for was beyond the jurisdiction of the court. It appears from the allegations of the petition that appellee, W. L. Pace, on April 7, 1909, filed suit in the court of H. E. Showers, justice of the peace of precinct No. 1 of Jefferson county, against appellant on 20 promissory notes for $10 each, bearing interest at the rate of 10 per cent. per annum from date, viz., August 17, 1905, and 10 per cent. additional on the principal and interest as attorney's fees, less a credit of $45. Just when this credit was entered does not appear. The case was continued from term to term until the 17th day of May, 1910, when judgment by default was rendered in plaintiff's favor for the amount of his debt, and for foreclosure of his mortgage lien on a piano, by G. M. Oliver, who was also a justice of the peace of precinct No. 1, and who was sitting in Justice Showers' court during the time the latter was sick and unable to discharge the duties of his office. On April 28, 1911, nearly a year after rendition of the judgment, the plaintiff in the justice court suit sued out an order of sale, which was placed in the hands of James Evins, a constable of Hardin county, where the piano then was, and this writ was not levied nor the piano seized under it until about the 29th day of September, 1911, about five months after the issuance of the order of sale. [2] But, regardless of the matter above discussed, we think the court did not err in refusing to grant the writ of injunction, on the ground that the justice court was without jurisdiction, either because the amount of plaintiff's demand, or the value of the piano foreclosed upon, was beyond its jurisdiction. There was no allegation in the petition for injunction to show that from the record in the justice court it affirmatively appeared that the subject-matter of the litigation was not within the jurisdiction of that lant failed to make any defense to appelcourt, but it does so appear that the appelthan 12 months before the judgment was renlee's demand, although he knew for more dered that the suit was pending, and at his instance had been continued from term to term, and the petition is silent in the matter of showing any excuse whatever for failing to avail himself of the legal remedy of appeal or certiorari to vacate it. True he alleges that at the time of applying for the injunction he had no remedy at law, either by way of appeal or certiorari, but this allegation falls far short of a legal excuse for not having availed himself of his legal remedy within the time provided by law. understand the law to be that, even if the judgment was void because of matters arising dehors the record, an injunction will not lie if the party complaining has not availed himself of his legal remedy to vacate the judgment by appeal or certiorari. Railway v. Ware, 74 Tex. 49, 11 S. W. 918; Tucker v. Williams, 56 S. W. 586. We [1] We think the allegations of the petition are not sufficient to show that the justice court did not have jurisdiction to render judgment for the amount of the notes and attorney's fees. True it is alleged in general terms that the amount was beyond its jurisdiction, but in alleging the specific facts upon which appellant relies to show this the facts stated do not bear out the general allegation that the justice court was without jurisdiction. Had the pleader stopped after alleging that plaintiff's suit was upon 20 notes of $10 each, and 10 per cent. on the principal and interest as attorney's fees, his petition would have shown, prima facie, that the amount sued for was beyond the jurisdiction of the justice court. But he alleged, further, that a credit of $45 had been allowed, without stating the date when appellant became entitled to the credit, or when it was in fact given. It will be noted that [4] There is no merit in the allegation that the notes were dated August 17, 1905, and the judgment was void because rendered by at the time of the judgment nearly five years' a justice of the peace other than the regular interest had accrued. A simple calculation | justice of the court in which the suit was [3] The allegation that appellant had not been served with citation and did not know of the pendency of the suit against him is contradicted by the further allegation that he did know of the pendency of the suit, and that the suit had been continued from term to term by the justice of the peace at his special instance and request. Even if he had not been served with citation, we think his frequent appearance for the purpose of obtaining the continuance was a waiver of the issuance and service of citation upon him. see Pleading, 2. INJUNCTION (§ 118*)—INJUNCTION AGAINST SALE-PETITION. justice of the peace was sick and unable to held sufficient as an answer, although styled a discharge the duties of his office, and that "motion to dissolve injunction." G. M. Oliver, a justice of the peace in the Cent. Dig. 88 1375-1383, 1386; Dec. Dig. § [Ed. Note.-For other cases, same precinct, held court for him and ren- 409.*] dered the judgment in question. Article 1566, Sayles' Civil Statutes, provides: Whenever the justice of the peace of any precinct shall be absent, or unable or unwilling to perform the duties of his office, the nearest justice of the peace in the county may perform the duties of the office until absence, inability or unwillingness shall cease." There was no allegation that G. M. Oliver was not the nearest jus-3. tice of the peace. such [5] But we think that the court erred in sustaining the general demurrer, because the petition sufficiently alleged that the writ under and by virtue of which the piano was seized was at the time of the seizure functus officio. It was alleged that the writ was issued on April 28, 1911, and the levy thereof and the seizure of the piano was on the 29th day of September, 1911, five months after the date of its issuance. The statute requires all such writs to be returnable in 60 days from date of issuance. Sayles' Civil Statutes, articles 1657, 1658, 1659. It is well settled that such writs, after the lapse of the time in which they are made returnable by law, are of no force and effect (Reagan v. Evans, 2 Tex. Civ. App. 35, 21 S. W. 429), and that the right of the constable, by virtue of such a writ, to take and sell property ceases from the date the writ was returnable. Harris v. Ellis, 30 Tex. 6, 94 Am. Dec. 296; Hester v. Duprey, 46 Tex. 627; Young v. Smith, 23 Tex. 600, 76 Am. Dec. 81. [6] It follows that from the allegations of the petition, which, being tested by a general demurrer, must be taken as true, that at the date of the levy upon and seizure of the piano by the constable the writ upon which he assumed to act was of no force and effect, and his acts in the premises were unauthorized, and that a sale of the piano thereunder would be void. We think, therefore, that the sale of the piano under such void writ should have been enjoined, and that the court erred in sustaining the general demurrer to this ground for relief. For the error indicated, the judgment of the court is reversed and the cause remanded. Reversed and remanded. A petition to enjoin a substituted trustee from selling land which states that such trustee did not have authority under the trust deed, which was a conclusion, and pleads no facts from which it could be determined whether the deed of trust gave him authority, was insufficient; a power to sell being strictly construed. [Ed. Note.-For other cases, see Injunction, Cent. Dig. 88 223-242; Dec. Dig. § 118.*] APPEAL AND ERROR (§ 1039*)—PLEADING— INSUFFICIENCY. A plaintiff is not entitled to a reversal for did not state a cause of action, and the aninsufficiency of the answer where the petition swer did not supply its defects. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.*] "COLLECTION OF 4. INJUNCTION (8 148*) 1 MONEY-REFUNDING BONDS. An injunction restraining a substituted trustee under a deed of trust from selling the land, but saying nothing about the collection of the notes for which the deed of trust was security, was not one restraining the "collection of money" within Sayles' Ann. Civ. St. 1897, art. 3008, requiring a refunding bond in such cases. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 323-334; Dec. Dig. § 148.*] Appeal from District Court, Bexar County; J. L. Camp, Judge. Action by E. G. Hicks against J. E. Murphy and another. From an order dissolving a temporary injunction, the plaintiff appeals. Affirmed. See, also, 150 S. W. 955. MOURSUND, J. This is an appeal from an interlocutory order dissolving a temporary injunction, which restrained C. W. Kuykendall from selling certain lands as substitute trustee under a deed of trust. There is no statement of facts in the record, and we are confined to the consideration of questions arising upon the pleading. answer was Appellant's first contention is that the court had no authority to dissolve the temporary injunction because no filed, but merely a motion to dissolve. The instrument is styled, "Motion to Dissolve Injunction," and is so referred to by the court. It begins as follows: "Now come J. E. Murphy and C. W. Kuykendall, the defendants herein, and, moving the court to dissolve and vacate the injunction issued upon the defendants herein, would show to the court." Then follow the allegations intended as denials of the material allegations of the petition, and the prayer for dissolution of the injunction and for general relief. It is verified by the oath of one of the defendants. No exceptions were filed to the form A verified pleading containing allegations of this instrument, nor any question raised intended as denials and a prayer for dissolution of the injunction and general relief, in the ab- in the lower court in regard to its sufficiensence of objection below, as to form, will be cy as an answer, but issue was joined and HICKS v. MURPHY et al. 1. PLEADING (§ 409*)—ANSWER — Form-MoTION TO DISSOLVE INJUNCTION. evidence introduced as shown by the judg-| before the original trustee could sell, nor ment of the court. [1] In the case of Smith v. Palo Pinto County, 128 S. W. 1193, the court held it was unnecessary to file a separate motion to dissolve the injunction; that the prayer in the answer for such relief was sufficient. In that case the pleading was styled an answer. In this case it was styled a motion to dissolve, but there was no difference in substance, and, in the absence of objection in the lower court, we hold the instrument filed in this case sufficient as an answer. Nor do we agree with appellant's contention that the case of Dawson v. Baldridge, 55 Tex. Civ. App. 124, 118 S. W. 593, is authority for a contrary holding. In that case the court considered a verified motion to dissolve as an answer, but held that it was not an answer such as equity requires, in that it did not contain a full and unequivocal denial of all the material allegations of plaintiffs' petition. do we know what provision was made for the appointment of a substitute trustee. True, the petition sets out the conclusion of the pleader that Murphy acted wholly without authority or right under the terms of said deed of trust when he attempted to appoint Kuykendall as substitute trustee, and requested him to sell the land. "The petition for an injunction should state all and negative all, which is necessary to establish a right." Moss v. Whitson, 130 S. W. 1035; Gillis v. Rosenheimer, 64 Tex. 243; City of Paris v. Sturgeon, 50 Tex. Civ. App. 522, 110 S. W. 459; Cotulla v. Burswell, 22 Tex. Civ. App. 329, 54 S. W. 614. It is necessary to allege such facts as show a want of authority. The conclusion of the pleader is not sufficient. Moss v. Whitson, supra. There are no facts pleaded by plaintiff from which we can determine whether or not the deed of trust authorized Murphy, even though he had parted with the title to the notes, to appoint a substitute trustee, and request him to proceed with the discharge of his duties as such trustee. Our law prescribes no form for deeds of trust, nor does it stipulate that a sale of notes secured by such an instrument carries with it the power to appoint a substitute trustee. The power to sell is strictly construed, and the deed of trust might give the power to appoint a substitute trustee solely to the payee of the notes. We conclude that the allegations of the petition are insufficient to authorize an injunction on the ground of the failure of Mrs. Herriott to appoint or join in the appointment of the substitute trustee and to request him to sell. It is therefore only necessary to determine whether the allegations of the answer aid those of the petition so as to make a case for plaintiff. [2] Appellant's second contention is that, if the motion to dissolve be considered as an answer, then that same does not deny all the material allegations of the petition, and leaves sufficient uncontroverted to entitle appellant to the injunction. He says the petition alleges that Mrs. Herriott, who held the two notes payable to defendant Murphy, as collateral to secure the payment of his note to her for $1,500, did not join said Murphy in the selection and designation of Kuykendall as substitute trustee, and that the deed of trust under which the sale was sought to be made by Kuykendall contained the usual power of sale, and the usual stipulation providing for the substitution of trustees in case the original trustee should die, become disqualified, or be unable to act, etc. We find the petition alleges that the two notes payable to defendant Murphy, one for $4,500 [3] The answer denies that the defendant and the other for $4,477, secured by a deed Murphy had no right to foreclose the notes of trust on the land in McMullen county, and deed of trust, or that Mrs. Herriott did Tex., sought to be sold by Kuykendall, are not know of his foreclosure of said notes. held by Mrs. Herriott as collateral to secure and says he had an arrangement with her the payment of Murphy's note to her for through her authorized agent, C. P. Staf$1,500; that neither she nor any authorized ford, allowing and permitting him to foreagent of hers ever made any request for the close upon said land for the notes described sale of the land under the deed of trust; in plaintiffs' petition, and that he had an and that Murphy acted wholly without right agreement in writing, placed of record in or authority under the terms of the deed McMullen county, Tex., on April 20, 1912, of trust when he attempted to appoint Kuy- showing his right to proceed and foreclose kendall as a substitute trustee under the said notes, and that for all the purposes of terms of said instrument, and when he re- this foreclosure he is the owner and holder quested Kuykendall to advertise and sell the of said notes, the same having been turned land to satisfy said two notes, and for said over to his attorney, C. A. Davies, by C. P. reasons the attempt of said Kuykendall to Stafford, agent of Mrs. Herriott, and the sell said land was in violation of law and said C. P. Stafford having authorized C. A. of plaintiff's rights as the owner of the land. Davies to act for and in his behalf in proWe find no allegation setting out or describ- tecting him in the said foreclosure. We find ing the provision, if any, contained in said no admission in this answer that the deed deed of trust with respect to the appointment of trust required Mrs. Herriott to appoint of a substitute trustee. We do not know a substitute trustee, nor that it required her from the perusal of the petition whether to make request for sale before such sale no right to foreclose the notes and deed of trust, then sets up an agreement, concerning the terms of which we are left in the dark, and states the conclusion of the pleader that said agreement is sufficient to vest the title to the notes in Murphy for the purpose of foreclosure. This answer in our opinion would not be sufficient if the petition showed the provisions of the deed of trust to be such that the legal holder of the notes had to appoint the substitute trustee and that such appointment had to be made in writing, because such power is strictly construed, and appellant would be entitled to have the sale made in strict compliance with the terms of the deed of trust. The answer, however, is not such an admission as supplies the allegations wanting in the petition, and we hold that appellant is not entitled to a reversal upon his second contention. owed the duty only of using ordinary care in Cent. Dig. 88 42-44; Dec. Dig. § 32.*1 Where there was no evidence that an employer derived any benefit or advantage from his employés riding on one of its log trains, or that it was under any obligation to carry them thereon, but, on the contrary, it appeared that an employé rode thereon in order to reach home earlier, and solely for his own benefit, he was a mere licensee and had no implied invitation to so ride. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 654; Dec. Dig. § 224.*] Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge. Action by Phil Gresham against the Kirby Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and ren dered. Oliver J. Todd, of Beaumont, and Andrews, Ball & Streetman, of Houston, for appellant. Blain & Howth and M. G. Adams, all of Beaumont, for appellee. [4] Appellant's third contention is that the temporary injunction dissolved below was one restraining the collection of money within the meaning of article 3008, Sayles' Civ. Stat., and a refunding bond should have been required of appellees. The prayer was for an injunction restraining each of the defendants from selling or further attempting to sell under the terms of said deed of trust any part of the lands described. The writ of PLEASANTS, C. J. This suit was brought injunction copied in the record was strict- by appellee against appellant to recover damly in accordance with the prayer, except ages for personal injuries alleged to have been that it was directed only to defendant Kuy- caused by the negligence of appellant. Plainkendall. Appellant failed to ask that the de- tiff's petition alleges, in substance, that on fendants be restrained from negotiating or or about the 25th of March, 1910, plaintiff collecting the notes, and the injunction grant- was in the employment of defendant as a ed does not prohibit Murphy from suing woodcutter or sawyer; that he was employWomack, the maker of the notes, to collected to cut or saw logs in the woods several same, nor, if Mrs. Herriott is the legal owner and holder as contended by appellant, would it prevent her from appointing a substitute trustee, and having the land sold under the deed of trust to satisfy the notes. The refunding bond required by statute is required to be in double the sum enjoined, and the same cannot be required unless the collection of some sum is enjoined, and the same is stated with such certainty that the amount of the bond can be fixed. miles from the town of Buna where the defendant operates a lumber mill; that it was at the date mentioned, and had long been, the custom of defendant's employés who worked in the woods to ride to and from their work on defendant's trains and cars; that such custom was known to and acquiesced in by the defendant and was for the mutual benefit and profit of defendant and its said employés; that in pursuance of said custom, and with the consent and under the direction of defendant and its authorized agents, plaintiff, on the date before mentioned, after having finished his day's work in We find no error in the record, and the the woods, got upon a flat car or trailer of judgment is affirmed. We conclude the court did not err in failing to exact a refunding bond as a condition precedent to dissolving the injunction. KIRBY LUMBER CO. v. GRESHAM. (Court of Civil Appeals of Texas. Galveston. 1. NEGLIGENCE (§ 32*)—CARE REQUIRED AS a train composed of an engine, flatcar or trailer, and log cars loaded with logs, for the purpose of returning to his home at Buna, and while riding upon said train it was negligently derailed and wrecked and plaintiff was thereby injured. The acts of negligence charged in the petition are as follows: (a) A failure to provide a reasonably safe track, in that (1) the rails A person riding on another's log train thereof were not spiked and attached and without any express or implied invitation or contract, and without his consent or acquies- fastened in any manner to the ties, or were cence, was a mere licensee to whom the owner not spiked and fastened with reasonable se |