The legal presumption prevails, in the absence of contrary proof, that public officers have not culpably neglected, but have properly per- 8. TRIAL 256(1)—Further aDDITIONAL INformed, their official duties, and that their acts are regular and in compliance with law.

3. MUNICIPAL CORPORATIONS 183(3)-RE- pellee to recover the sum of $1,555.53 from

appellant, together with 6 per cent. interest, alleged to be due for his salary for nine months and ten days as city marshal of San Antonio. It was alleged that the salary was

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(218 S.W.)

$2,000 per annum, and that, after serving [ "incompetency and general unfitness to perfourteen months and twenty days of his two form the duties" of the office. That paper years' term, he was illegally removed from was dated August 19, 1912, and, while the his office and deprived of his salary by A. evidence was uncertain as to when the file H. Jones, mayor of the city of San Antonio. mark was put upon the paper, there is no Appellant, in its answer, justified the remov. testimony tending to show that it was not al under the terms of its charter. The placed in the hands of the clerk by the maycause was submitted to a jury on three is- or for filing on August 19, 1912. There was sues: First, did the mayor give his true no testimony tending to show that the mayor reasons for the removal of appellee; second, deemed appellee competent and generally fit were the reasons really political; and, third, to perform the duties of the office when he were the reasons filed at time of the remov- discharged him, unless the fact that the al? The first issue was answered in the discharge of the marshal was made an issue negative, the second in the affirmative, and in the campaign, and the remarks attributthe third in the affirmative. On the answers ed by appellee to the mayor just before he judgment was rendered in favor of appellee qualified and shortly thereafter, showed that for $2,125.27. On a former appeal the judg- appellee was discharged for political reasons ment was reversed and cause remanded. 201 alone, and the reasons given by the mayor S. W. 191. were false and fraudulent.

The first, second, and third assignments of error assail the action of the court in re fusing to peremptorily instruct a verdict for appellant, because there was no evidence that tended to prove that Mayor A. H. Jones removed appellee for political reasons alone and did not remove him on the grounds assigned.

This court, on the former appeal, through an opinion written by the late Associate Justice P. H. Swearingen, decided that power to appoint, given the mayor by the charter of the city, carried with it power to remove, under any limitations or conditions fixed by the charter; that under the charter the mayor could for any reason, other than one purely political, discharge any appointee, and the discharge would rest on the belief of the mayor as to incompetency rather than on actual incompetency; and that, although political reasons may have operated with other reasons to cause a discharge, that would not render the removal inoperative.

The charter provides that

"Any appointive officer, employé, agent or servant of the city, employed under authority of the council, may be discharged from service by the mayor for any reason he may deem sufficient."

It is also provided "that no person shall be dismissed or discharged for political reasons," and that the mayor "shall file his reasons in writing for such discharge with the city clerk at the time of such discharge." It is also provided that the discharge shall be approved by a majority of the city council. The evidence showed that on August 19, 1912, A. H. Jones took the oath as mayor of the city of San Antonio, and immediately thereafter notified the council that he had discharged appellee from the office of city marshal, and his action was immediately approved by a majority of the city council. The reasons given by the mayor for the discharge of the marshal, which were filed by the clerk either on August 19th or August 20th were

218 S.W.-9

[1] The, legal presumption prevails, in the absence of proof to the contrary, that public officers have not culpably neglected, but have properly performed, official duties, and that their acts are regular and in compliance with law. City of San Antonio v. Tobin, 101 S. W. 269; White v. Manning, 46 Tex. Civ. App. 298, 102 S. W. 1161. The presumption would therefore be indulged in that the discharge of appellee was made in compliance with the requirements of the charter, namely, that he was discharged because deemed by the mayor incompetent and unfit; that the reasons were filed with the clerk at the time of the discharge; and that he placed the file mark on the paper at that time. The presumption as to acts of public officers is so old that it was many years ago crystallized into a Latin maxim: Omnia præsumuntur rite et solemni-` ter esse acta donec probetur in contrariuma fair translation of which is: All things are presumed to have been rightly and duly performed until it is proved to the contrary.

[2, 3] The legal presumptions mentioned cast upon appellee the burden of showing that A. H. Jones, mayor, removed him from office for political reasons alone, and that the reasons assigned by the mayor were falsely and fraudulently made, and, if not so made, such reasons in writing were not at or about the time the discharge took place. placed in the hands of the clerk for filing While the city clerk was uncertain as to the exact time of day the paper containing the reasons for discharge was placed in his hands, yet he closed his testimony with the

positive statement:

"Yes, sir; this identical paper was in my possession in the council chamber at the time Mr. Newnam was discharged."

When the paper was placed in the hands of the clerk for filing, the mayor had complied with the law, and a failure on the part of the clerk to file the paper when placed in his hands would not render the discharge

illegal. As said in Holman v. Chevaillier's | reasons had a basis in the incompetency or Adm'r, 14 Tex. 337:

"It is the duty of the clerk, when a paper is thus placed in his custody, or 'filed' with him, to indorse upon it, the date of its reception, and retain it in his office, subject to inspection by whomsoever it may concern; and that is what is meant by his 'filing' the paper. But where the law requires or authorizes a party to file it, it simply means that he shall place it in the official custody of the clerk. That is all that is required of him; and, if the officer omits the duty of indorsing upon it the date of the filing, that should not prejudice the rights of the party."

See, also, Snider v. Methvin, 60 Tex. 487, and Bank v. Trust Co. (Tex. Civ. App.) 186

S. W. 361.

The charter does not require the reasons given by the mayor to be read to the council, and all testimony to the effect that such reasons were not read has no probative force as to the filing of the paper. If the paper was handed to the city clerk, as sworn to by him and not contradicted, it was filed as required by the charter. Appellee received a notice of the paper two days after he was discharged. Notice dated August 19, 1912, was sent to and received by appellee that he had been discharged for reasons then on file. [4] The record discloses the fact that appellee testified on this trial, as he did not on the first trial, that the mayor before he was sworn came to appellee and sat down by him and told him that he had nothing against him personally, but that he had to put his friends in office. Also that a few days afterwards Mayor Jones said:

"You should not get mad at me. You have been in politics longer than I have. I have nothing personal against you. I fired you to put in my own people who helped me to be

elected."

If it be true, as must have been concluded by the jury, that A. H. Jones told appellee what the latter swore he did on the last trial, the reasons for discharging appellee may have been political. That evidence indicated a discharge to make room for a favorite associated with the mayor in his political campaign, and that would be political reasons. It would be an enforce ment of the political rule so often invoked that "to the victor belongs the spoils." There was no evidence offered by appellant to show the incompetency or inefficiency of appellee, which might have been done if such incompetency or inefficiency existed. When appellee swore to the conversations with Jones in which he gave his reasons for discharging appellee, a prima facie case was apparently made out, and the presumption that the mayor had given the true reasons for the discharge destroyed, and the burden was cast upon the appellant to sustain the reasons for discharge by showing that those

unfitness of appellee for the office. There were hundreds of men in close association with Jones during the campaign for the mayoralty who undoubtedly could have testified as to the competency of appellee for the office of chief of police. Doubtless, numbers could have testified to the reputation of appellee as to his fitness for the office. Not one word of such testimony was offered by appellant, while witnesses were introduced by appellee who swore to his competency. Not one of the friends of Jones were placed on the stand to testify as to the reasons givCertainly the reasons were given by Jones en by him as to the discharge of appellee. in his speeches, and in private conversations, for it appears from the platform adopted by the friends of Jones that appellee was one of the issues of the campaign and that a pledge was made that he should be dis

charged.

It is true that suspicion surrounds the testimony of appellee because not given on the first trial of this case, and in some particulars is inconsistent with his former testimony, because on the former trial he stated that he had no conversation with Jones, and his efforts at reconciliation of the two statements is very unsatisfactory; still the jury saw fit to credit his testimony.

Appellee stated on the first trial that he had never spoken to Jones in his life, and reiterated that statement, and yet testified to the conversations with Jones on the second trial. His explanation of the matter was that he meant that he had not spoken to Jones during the campaign, which was given some plausibility by the fact that the question was as to personal conversations during the campaign. The reason given for the discrepancy in his testimony is apparently unsatisfactory, and still it satisfied a jury against whom no charge of improper conduct has been preferred. As no evidence was introduced by appellant to contradict or overthrow the evidence of appellee, reliance being had on its inherent weakness and inconsistency, the jury may have thought the explanation sufficient and that his testimony could not be assailed. There was evidence tending to show that Jones sat close to appellee, "right along side of him," when he came into the council chamber, at the time when appellee swore he talked with him. The meeting of the council lasted several hours at that time, as the council was canvassing the city vote. As soon as the mayor took the oath, he said, "I fire Frank Newnam," which would indicate that appellee was the subject uppermost in his mind at the time. No attempt was made to controvert the testimony, which tended to corroborate the testimony of appellee that he talked with Jones at that time. If no conversation took place at that time, Jones was undoubtedly

(218 S. W.)

surrounded by friends, and they could have city council. From that time, under the evidenied it.

[5, 6] The rule is well established in Texas, if not in every state in the Union, that the question of whether there is any evidence is one for the court, and whether sufficient evidence one for the jury. As said by the Supreme Court in the case of Lee v. Railway, 89 Tex. 588, 36 S. W. 65:

"To authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it."

dence, as found in the record, the discharge was according to law, if it was not made for political reasons. Appellee admitted receiving a notice of the reasons given on August 21st, just after his removal.

[8] The fourth assignment of error is overruled. The charge was correct so far as it went, and, if appellant desired an addition to it, a charge should have been requested.

We have concluded that, whatever may be the views of this court as to the weight to be given to the testimony of appellee, the jury has credited him, and such testimony

That is the correct rule as laid down by forming a sufficient basis for the verdict it

most of the decisions in Texas. In other words, if there is any testimony in a case upon which a verdict can be predicated, a judgment based on such verdict should be sustained. The statutes of Texas make the jury the exclusive judges of the credibility of witnesses and the weight to be given to their testimony, and, however much an appellate court might differ with the jury, still in the face of a verdict it can do nothing. As said by this court in Railway v. Butshek, 34 Tex. Civ. App. 194, 78 S. W. 740:

must be sustained.

Therefore a rehearing is granted, and opinion reversing and remanding this cause will be withdrawn, and the judgment will be affirmed.

BAYLESS v. GUTHRIE et al. (No. 2201.)
Appeals of Texas. Texarkana.
Jan. 20, 1920. Rehearing Denied
Jan. 29, 1920.)

(Court of Civil

"It appears that the case had been tried once HOMESTEAD before, and there were apparently contradictions between plaintiff's testimony on the former trial and that on this trial as to where the

57(3) EVIDENCE SHOWING

HOMESTEAD IN ANOTHER TRACT THAN THAT
INVOLVED IN FORECLOSURE SUIT.

In an action to foreclose a mortgage, whereboard was, whether over the dugout or not. in mortgagor interposed a claim of homestead, Inconsistencies on the subject between his tes-evidence held to sustain a finding that the morttimony on the two trials, and inconsistencies, if any, in the testimony he gave at the latter trial, if any, were matters which addressed themselves to the jury."

gagor had previously acquired another homestead at the time the mortgage was given.

Appeal from District Court, Smith County;

So, in Railway v. Butler, 61 Tex. Civ. App. J. R. Warren, Judge. 617, 131 S. W. 240, it was said:

"But, even if the witness made inconsistent or contradictory statements, the whole should have gone to the jury to be given such credence and weight as the jury might have seen proper."

[7] The question then before this court is: Did the evidence of appellee as to his conversations with Jones tend to show that he was removed for political reasons? After a full and thorough consideration of the evidence, we have arrived at the conclusion that it does, and if believed to be true by the jury would sustain their verdict. It showed that Jones had nothing personal against appellee, but removed him because he had to put his friend in office. As he said: "I fired you to put in my own people who helped me to be elected." That was undoubtedly politics pure and simple.

Even if it should be doubtful as to whether the reasons for the discharge were placed in the custody of the clerk on August 19, 1912, there is no doubt whatever that they were on file on September 3, 1912, when the minutes, which recited the discharge and the filing of the reasons, were approved by the

Action by M. E. Guthrie against Willis Bayless and another. On the death of M. E. Guthrie, Athlena Long was substituted as plaintiff. Judgment for plaintiffs, and defendant Bayless appeals. Affirmed.

Price & Beaird, of Tyler, for appellant.
Hanson & Butler, of Tyler, for appellees.

HODGES, J. This action was originally filed by Mrs. M. E. Guthrie against Sam Wilson and the appellant, Bayless. Before the trial Mrs. Guthrie died; and Athlena Long, her sole surviving heir, was substituted as a party plaintiff and continued the prosecution of the suit. The petition sought a recovery upon a promissory note for the sum of $150 dated September 30, 1913, and due March 29, 1915, together with the interest and attorney's fees. It also asked for the foreclosure of a mortgage upon a lot in the city of Tyler which it is alleged was executed by Wilson for the purpose of securing the payment of the note. In a trial before the court a judgment was rendered in favor of the plaintiff against Wilson for the principal of the note together with interest and

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closed by the record; Wilson married in 1905, and shortly thereafter he and his wife improved and occupied another lot in the city of Tyler as their homestead. They resided upon that lot till about the beginning of 1912, when they rented the premises to another party and moved to Bonham. Some time after its purchase Wilson executed a conveyance of the lot to one Chambers for the purpose of securing a loan. That conveyance was in the form of an unconditional deed, but was intended by Wilson to operate only as a mortgage. He never had repaid that loan, and Chambers had conveyed the property to other parties. Upon the trial Wilson treated that property as having been lost to him. He says he did not know at the time he made the representations to Guthrie about claiming it as his homestead that he had lost the property. When the proof offered by the appellant showed that at the time this mortgage was executed Wilson and wife were residing upon and using the

attorney's fees, and awarding a foreclosure of the mortgage lien upon the lot referred to. Bayless asserts title to the property in controversy by virtue of a purchase from Wilson and wife in February, 1914, and appeals from the judgment of foreclosure. He contends that the property was Wilson's homestead at the time it was mortgaged to M. E. Guthrie, and that for that reason the effort to incumber it for borrowed money was void. The court filed findings of fact and conclusions of law. The following is the substance of the evidence that is material to be considered on this appeal: The lot involved in this suit formerly belonged to Sam Wilson's father and mother, and had been occupied by them as the family residence. In December, 1912, the mother died, leaving her husband, Julius Wilson, and her only child, Sam Wilson, surviving. In July, 1913, Julius Wilson conveyed his undivided half interest in the property to his son, Sam, thus investing the latter with a fee-simple title to the entire lot. Sam Wilson and wife | lot in question in all respects as a home for were with Mrs. Wilson, Sr., at the time of her death, and thereafter continued to occupy the premises as their place of residence until it was sold by them to Bayless in 1914. They were thus occupying and using it at the time this mortgage to Guthrie was executed, and that fact was well known to Guthrie. When the mortgage was prepared Wilson stated to M. E. Guthrie that this lot was not his homestead; that he claimed as his home another lot in another part of the city of Tyler, on which he and his wife had formerly resided and which he had rented to other parties at the time he left it about 11 months prior to his mother's death. For the purpose of inducing Guthrie to take the mortgage and make the loan Wilson caused the following to be inserted in the deed of trust: "Said property is not my homestead or any part thereof." If the evidence touching the home character of the premises had ended here, there would be little reason for denying the homestead claim; for it conclusively appears that at the time this mortgage was executed Wilson and his wife were residing upon and using this property in all respects as their home. That character of use and occupancy is at least prima facie evidence of a homestead dedication, under ordinary conditions; and it becomes conclusive proof in the absence of a showing that another homestead had been acquired which had not then been abandoned. Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12; Mortgage Co. v. Norton, 71 Tex. 685, 10 S. W. 301; Kempner v. Comer, 73 Tex. 203, 11 S. W. 194; Jacobs v. Hawkins, 63 Tex. 2; Hines v. Nelson, 24 S. W. 541. The trial judge concluded as a matter of law that the lot in controversy was not Wilson's homestead. Evidently he based that conclusion upon these additional facts dis

the family, it devolved upon the creditor to show either that Wilson was not so using and occupying the property, or that he had another tract or lot of land which had been dedicated as a homestead and which had not been abandoned. The appellee chose the latter course; and the question before us is: Was the evidence sufficient to justify a finding that at the time this mortgage was given Wilson had another homestead? It is undisputed that he had previously acquired another lot, and that he and his wife had occupied it as their home. If at the time the mortgage was given to Guthrie Wilson still owned that lot, his declarations then made were sufficient to support the conclusion that he had not then abandoned it. Proof of an intention to return and resume its use would be sufficient to show its retention as the homestead. The issue is then narrowed to this: Did the evidence show that Wilson still owned the lot formerly occupied by him when this mortgage was executed? The evidence is undisputed that he had acquired title to the first lot prior to the execution of the mortgage to Guthrie and had not sold it. It is true Wilson testified that he had lost the property, and did not know it when he gave the mortgage. That statement furnished the only evidence that he had in fact lost it. The rule is, "Once a mortgage always a mortgage." If the conveyance from Wilson to Chambers was designed as a mortgage, it remained a mortgage, regardless of the form in which it was expressed. The character of that instrument was not altered by a subsequent conveyance by Chambers to other parties. An innocent purchaser for value would acquire title only by estoppel. There is no evidence that any of those parties who purchased under were in an attitude to claim a title