Calvin Marshall, taken in 1915, and he testified that in his opinion John Moore was, at that time, about 90 years old; that he had known him for about 23 years. Also, were testified to by J. A. Watson. as bearing upon the issue of identity of the Hardeman county John Moore with the original grantee of the land in question, the The defendants below, among other things, plaintiffs below introduced another witness, introduced on this point the deposition of J. John Pickering, who testified that he was C. Elliott, taken in 1915, who testified that he born on the 1st of January, 1818, in the state was 76 years old at the time, and that he had of Mississippi, and that he came to Texas in known the Hardeman county John Moore ap- 1836, and shortly thereafter entered the war proximately 60 years; that John Moore's between Texas and Mexico then going on, first wife, Miss Elliott, was witness' cousin; and was one of the participants in the battle that when witness first met John Moore he of San Jacinto. This witness further testiappeared to be between 23 and 25 years of fied that after leaving the vicinity in which age; and that he has known John Moore in- this battle was fought, and some time early timately ever since that time. He further in the spring of the following year, he made testified that this Hardeman county John his way to Shelby county, Tex., and there Moore often spoke about his age during the fell in company with some of the early surtime witness knew him, and that it was fre- veyors in that part of the country, among quently mentioned by this John Moore that them being Arthur Henrie and David he was just 9 years older than this witness. Brown; that witness followed the gambler's The witness further stated that he never in profession at that time, playing mostly the his life, although knowing John Moore inti- game of "seven-up," of which he was very mately for more than 60 years, heard him fond, and that he had many times played say that he was in doubt of his true age, and the game with old David Brown, whom he never on any occasion heard him mention the called "Uncle Dave," and that he had won "record" made by his brother-in-law, Marion, many a dollar from David Brown in this nor anything in that connection; that he al- game. He further testified that some time ways spoke of the date of his birth as being during the year 1837, and while he was folJanuary 1, 1830, and seemed to have no doubt lowing the camps of these old surveyors, he of its correctness. Also the defendants intro- became acquainted with two young men duced the deposition of Mrs. Sarah Styles, whose names he understood to be William who testified that she was 68 years of age; Moore and John Moore; that these young that she had know the Hardeman county men claimed to be brothers, and also claimJohn Moore for more than 60 years; that he ed that they were from Hawkins county, married witness' sister, Miss Elliott; that that Tenn. He stated that William seemed to be witness had often heard this John Moore say a little older than John, and that John seemthat he was born January 1, 1830; and that ed to be a little older than this witness. He he never at any time during all the years also stated that he met at that time in that she had known him claimed that he was in vicinity a man by the name of Foard Mann doubt as to his correct age. Also defend- (it was claimed by the plaintiffs that Forg ants introduced the deposition of W. S. El- Mann was the man referred to by witness), liott, who testified that he was 70 years old; and, among other things, the witness further that he had known the Hardeman county stated that on one occasion he carried a note John Moore for a period of 63 years, having written by Arthur Henrie to David Brown, first met him in 1852, and further testified and delivered this note to this young man that Miss Elliott, John Moore's first wife, who called himself "John More." He furwas witness' sister, and further that he had ther stated that, as he understood the conheard Moore say many times during the tents of this note, it was in substance a dimany years he had known him intimately rection from Arthur Henrie to David Brown that he was born January 1, 1830, and that to show this young man, John Moore, his John Moore never, in all these years, express- land, and witness stated that this matter ed any doubt of his correct age. The witness was unusually impressed upon his mind at further stated that in his opinion the Harde- the time, because of the fact that the spellman county John Moore was about 85 years ing of the name "More" on this note was of age. different from the way the name Moore was always spelled, so far as this witness knew, and he remarked to himself at the time that it was strange that a man of David Brown's ability and business experience and supposed education, etc., wouldn't know how to spell "Moore," and, if we mistake not, he testified that he called David Brown's attention to this in a little pleasantry, and David Brown replied that this young man, John More, spelled his name with one "o," and not wth two "o's," as usual. The witness further stated that he only saw this young man It was further shown by J. W. Minton, an attorney residing at Hemphill, that some time in the winter of 1911 the Hardeman county John Moore came into witness' office making inquiry about land, and asked him something about abstracts, and that upon that occasion this John Moore told Minton that he was then 82 years old, and, according to Minton, Moore further stated to him on that occasion that he (Moore) did not come to Texas himself to get the land, but that his "folks" came to Texas and got the two in those days, and perhaps never had more than one or two conversations with him in his life, and never met him again thereafter until a few days before this case was called for trial-something more than threequarters of a century. And he further testified that while, of course, he could not undertake to say that the Hardeman county John Moore, who testified in this case, was the same young man who called himself John Moore in 1837, and could not identify him as being the same man, yet it is apparent from the record in this case that this witness would have sworn that he believed this Hardeman county John Moore was the same John More that he had met in 1837, basing such belief upon statements made to witness by the Hardeman county John Moore a day or two before the trial below. This belief on the part of the witness seemed to be based principally upon the fact that this Hardeman county John Moore had, during a conversation just before this trial, mentioned to witness the name of another man whom the witness met and knew well in that vicinity in 1837, and whose name was "Colonel" Pickett. These are substantially all the facts that the witness Pickering detailed that would have any tendency to prove that this Hardeman county John Moore was the same man to whom this league of land was granted in 1835. On the trial below, in addition to the evidence introduced by the defendants, as hereinbefore mentioned, they also produced the original testimonio, which was delivered by the Mexican government to the original grantee of this league of land at the time the grant was extended, which instrument, it was shown, came from the proper custody, and about which there was no question as to its genuineness. It will be remembered that at the date of the grant of this land the law of the Mexican government provided the method of extending titles, and that the method adopted at that time was to execute what was called the protocol, which was kept on file by the Mexican government as an archive, and the testimonio, which was simply a copy or, as frequently termed, duplicate original of the protocol, was delivered to the colonist as the evidence of his title to the land granted. This original testimonio, we repeat, written in the Spanish language, was produced and introduced in evidence by the defendants in this case, and it was nowhere shown that the Hardeman county John Moore ever had in his possession or saw this instrument, but his only claim in that connection is that his brother William had whatever title papers there were to this land, and that these title papers were lost in the Mississippi river in 1850. The defendants below also produced from the proper custody and introduced in evidence what purported to be the original deed from the original grantee of this land to Porter and Lane, dated, as before stated, Oc tober 3, 1835, the execution of which was witnessed and proved for record, and recorded as shown in the beginning of this opinion, and this is the deed that these defendants in error, M. G. Moore and W. H. Ratliff, claimed was a forgery. In addition to this, the record discloses that Porter and Lane, claiming under this deed to them, commenced to assert their ownership of this land, and same was conveyed down through the years, by mesne conveyances by their successors in title, claiming under this deed, which these defendants in error claimed was a forgery, and said Porter and Lane and their successors in title, claiming under and through this deed, have continued to assert ownership and exercise actual ownership by dealings in and conveying this land from one to another, which deeds have been placed of record, during all of which great length of time no claim of any character whatever has been asserted thereto by the Hardeman county John Moore, or by any one claiming under him, until shortly before this suit was filed, as stated in the beginning. We might mention other strong circumstances appearing from this record tending to show that the claim of title set up by the Hardeman county John Moore to this league of land was not well founded, but we think that we have already stated enough to show that this court is clearly justified in the conclusion we have reached in this case, and we shall therefore not incumber this opinion with further details. Now, it is first contended by these plaintiffs in error Toole et al. that the trial court was in error in declining to peremptorily instruct a verdict in favor of all defendants as against the plaintiffs below for all the land claimed by them respectively, and under this assignment plaintiffs in error contend that, there being no evidence going to show that the deed from the purported original grantee to Porter and Lane was a forgery, and having connected themselves by mesne conveyances with the title conveyed by that deed, they were entitled to recover the land as against the plaintiffs. [1] We cannot sustain this assignment, for the reason that we cannot correctly say that there was no evidence to go to the jury on the issue of forgery of said deed, because the testimony of the Hardeman county John Moore himself was some evidence on that issue, and the rule in this state being, as we understand it, that the court cannot peremptorily instruct a verdict on against a party to a suit where there is some evidence in his favor on the issue involved, we must therefore overrule this assignment. [2] The next assignment raises a different question, however, and by the same it is contended that the burden of proof being on the plaintiffs below to prove title to the land in controversy, in order to recover the same from the defendants, and plaintiffs having merely contradictory, or where it was a question of mere credibility of witnesses, and the evidence as a whole is reasonably sufficient to support the verdict, but all the Courts of Civil Appeals in this state have held that where the evidence relating to a jury's verdict on a question of fact so clearly and overwhelmingly preponderates against the verdict as to make it clear to the appellate court that such verdict was wrong then such verdict should be disregarded and set aside by the appellate court, and in this case this court has been constrained to conclude that the evidence clearly and overwhelmingly preponderates against the verdict of the jury on both of the main issues submitted to it, and so much so that this court feels com failed to do so by evidence legally sufficient, the trial court should have set aside the verdict of the jury in favor of the plaintiffs and granted the defendants, against whom recovery was had, a new trial. This assignment we have concluded, after very careful consideration, we must sustain. The facts we have mentioned above relate to both of the main findings made by the jury in this case; that is (1) that the Hardeman county John Moore was the man to whom this league of land was granted in 1835, and (2) that he did not convey the same to Porter and Lane. After very careful consideration of the entire record in this case, we have reached the conclusion that the evidence introduced on the trial below, as reflected by this record, considered as a whole, was unsufficient to war-pelled to say, in the discharge of its duty, rant a finding by the jury that the Hardeman county John Moore, under whom the plaintiffs below claimed this league of land, was the original grantee of this land; and, of course, if he was not such, then it follows, without any room for controversy, that there was no proof whatever and no necessity for any proof whatever that the deed of October 3, 1835, from the purported grantee to Porter and Lane was a forgery. [3, 4] In reaching this conclusion in this matter we have not been unmindful of the rule obtaining in this state that our Courts of Civil Appeals are not authorized to disturb a jury's verdict or finding on an issue of fact, where that verdict or finding has reasonable support in the evidence, although it may appear to the appellate court that such verdict or finding is against what they conceive to be a preponderance of the evidence relating thereto. That rule is firmly established in this state, and we have no inclination to question, in fact do not doubt, its wisdom; and it may be found that only in rare instances has this court disturbed the verdict or finding of a jury on any question of fact in any case decided by this court, and then only where, in the opinion of this court, the verdict or finding was overwhelmingly and manifestly against the preponderance of the evidence, and appeared to this court to be clearly wrong. We are not unmindful of the fact that loose expressions may be found in the reported cases to the effect that where there is any evidence in the record in support of a jury's verdict or finding then the appellate court cannot disturb such verdict or finding, but it will be found, we think, upon examination of the authorities where such expressions were used, that the court using such expressions did not mean for such language to be construed literally, but only meant that where the evidence was reasonably sufficient to support the verdict of the jury, it would not be disturbed by the appellate court. Our appellate courts have always held, with practical unanimity, that a jury's verdict on a question of fact should not be disturbed that the verdict is clearly wrong. It would serve no useful purpose to here dissect and analyze by way of argument this evidence, and in view of another trial we think best not to do so. . We therefore only say in conclusion that the assignment of the plaintiffs in error Toole et al., challenging the verdict of the jury in this case for lack of sufficient evidence to support it and the judgment of the trial court in refusing to grant a new trial upon the same ground, is sustained, and the judgment to that extent is reversed and the cause remanded, as between said plaintiffs in error Toole et al. and the defendants in error M. G. Moore et al. We now take up the case as brought here by the writ of error of M. G. Moore et al. v. American Lumber Company. As stated in the beginning of this opinion, upon conclusion of the evidence below, the trial court granted a peremptory instruction requested by defendant in error American Lumber Company to the jury, directing the jury to return its verdict in favor of said defendant for a particular 1,107 acres in the league of land sued for, and upon that verdict entered judgment in favor of said defendant for that portion of the league. The main assignment of the plaintiffs in error on this phase of the case challenges the correctness of the action of the trial court in giving this per emptory instruction. The trial court in giving this peremptory instruction assumed, as appears from the record, that the American Lumber Company proved its title to this 1,107 acres under its pleas of limitation, and that the proof on that question was in such shape as to authorize the court in treating the issue as one of law only, and therefore required a peremptory instruction. [5] At the threshold of this part of the case, we are met with an objection interposed by defendant in error American Lumber Company to a consideration of this assignment by plaintiffs in error, based on the ground that the record in this case does not show that any objection or exception to the giving of this peremptory charge was made by the plaintiffs in error in the court below, be useless to consider other minor assignments of error in this connection, for the reason that even if this court should sustain them its action in doing so could not have the effect to reverse the judgment in favor of this defendant in error as to the portion of the land recovered by it. such showing by the record any assignment | league of land recovered by it, then it would based upon the giving of such peremptory instruction should not and cannot be considered by this court. It appears from the record that this defendant in error presented in writing a request to the trial court for a peremptory instruction, which was given as above stated, and it nowhere appears in the record that any objection to the giving of this charge was made by the plaintiffs in error. Nothing in the way of a formal bill of exception or any other character of objection or exception was taken or made by the plaintiffs in error to this action on the part of the trial court. The question is therefore squarely presented whether this court is authorized to consider this assignment and review the action of the trial court in giving this charge. It follows from what we have said that the judgment of the trial court in this case, in so far as the same affects the plaintiffs in error Toole et al. and the defendants in error M. G. Moore et al. must be reversed, and the cause as to them remanded for a new trial; but the judgment, in so far as it relates to the 1,107 acres of land recovered by the defendant in error American Lumber Company against the plaintiffs in error M. G. Moore et al. should be affirmed, and it is so ordered. Reversed and remanded in part, and in part affirmed. et al. (No. 217.) (Court of Civil Appeals of Texas. Beaumont. It is suggested by the plaintiffs in error that this action of the trial court constituted fundamental error, and that no objections of any character to the court's action in giving this peremptory instruction was required, COBB & GREGORY v. DIES, County Judge, and that this court is authorized to review that action, even without a formal assignment of error in the trial court. Upon examination of this question, we find that each of the Courts of Civil Appeals of this state has had occasion to pass upon the same, and we find that each of them, with the exception of the Galveston and Amarillo courts, have held that, in order to entitle a party to complain of the trial court's action in giving a peremptory instruction, timely and proper objection must be made thereto before such charge is given to the jury, and the action of the court upon such objection must be properly reflected by the record. We agree with these several Courts of Civil Appeals, and hold that this court is without Appeal from District Court, Hardin Counauthority to consider this assignment of er-ty; L. B. Hightower, Sr., Judge. ror, and without discussing the matter further, we cite the following authorities in supther, we cite the following authorities in support of our holding: Hendrick v. BlountDecker Lbr. Co., 200 S. W. 171; Thorne v. Dashiell, 189 S. W. 986; Carr v. Pecos Valley State Bank, 189 S. W. 988; Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; Railway Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Railway Co. v. Feldman, 170 S. W. 133; Case v. Folsom, 170 S. W. 1066; Bohn v. Burton-Lingo Co., 175 S. W. 173; Railway Co. v. Wilson, 176 S. W. 619; Denison v. McAmis, 176 S. W. 621; Donaldson v. McElroy, 184 S. W. 1100; Commonwealth v. Bryant, 185 S. W. 979; Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Walker v. Haley, 181 S. W. 559. APPEAL AND ERROR 761-BRIEFS. Mandamus by Cobb & Gregory, a firm comagainst W. W. Dies, County Judge, and anposed of O. E. Cobb and J. A. Gregory, other. From judgment for defendants, plaintiff appeals. On motion by appellees to strike out a portion of appellant's brief. granted. See, also, 203 S. W. 438. Motion Mantooth & Collins, of Lufkin, and Orgain, Butler & Bolinger, of Beaumont, for appellant. Leon Sonfield, of Beaumont, D. F. Singleton, of Kountze, and J. L. Manry, of Livingston, for appellees. CHILTON, Special Judge. Appellees have filed a motion asking that a certain portion of the brief filed in this case by the appellants be stricken out, and that appellants be required to file briefs with the matter objected to eliminated therefrom. If we are correct in holding that the plaintiffs in error on this phase of the case waiv- One phase of this case involves the quesed their right to complain of the action of tion as to the proper construction of article the trial court in peremptorily instructing 2238, Revised Statutes of 1911, and in the in favor of defendant in error American statement under the first proposition, on page Lumber Company for the portion of this 8 of appellants' brief, it is stated: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Γ "In our zeal to arrive at the true construc- | of the commissioners, together with the county Following this is a copy of the form letter sent out by the attorneys of appellants, and then follows copies of numerous replies received, covering in all some 25 pages, and this is the matter objected to. Of course such matter is out of place in a statement under a proposition, as it does not pertain to the facts shown in the record, but the point urged is not this, but that it should not be in the brief at all. Rule 36 (142 S. W. xiii) of the rules governing the briefing of cases in the Courts of Civil Appeals, is as follows: "There should be annexed to each proposition, with its statement, and at the end of it, a reference simply to the authorities reiled on, if any, in support of it, in the following order, to wit: The statutes and decisions of this State; the statutes and decisions of the United States, if they are applicable to the case; elementary authorities; other decisions in the American and English courts. In citing decisions, those most nearly in point should be cited first, and they should not, usually at least, be so numerous as to require a waste of time in their examination." Parties who have filed briefs may, upon the submission of a case, present an argument, either oral or written (rule 47 [142 S. W. xv]), which must be confined to the disputed points presented by the propositions in the briefs (rule 48 [142 S. W. xv]). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Quorum.] 2. STATUTES 2254-RE-ENACTMENT AFTER JUDICIAL CONSTRUCTION. Where a judicial construction has been placed on a statute and the laws have been subsequently revised and the construed provision re-enacted without material change, it will be intended that the same construction should be conclusively inferred that the lawmaking body placed on the language of the statute in the future. 3. COUNTIES 213-ACTIONS - CONDITIONS Where the commissioners' court of a county Mandamus will not lie where the petitioners have another plain and adequate remedy. Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge. Suit by Cobb & Gregory, a firm composed of O. E. Cobb and J. A. Gregory, against W. W. Dies and another. From judgment for defendants, plaintiff appeals. Affirmed. See, also, 203 S. W. 437. No doubt considerable liberality should Mantooth & Collins, of Lufkin, and Orgain, Butler & Bolinger, of Beaumont, for appellant. Leon Sonfield, of Beaumont, D. F. Singleton, of Kountze, and J. L. Manry, of Liv CHILTON, Special Judge. The appellants, Cobb & Gregory, a firm composed of O. E. Cobb and J. A. Gregory, instituted the suit The motion of appellees is therefore seeking a mandamus requiring W. W. Dies, granted. Thereafter the appeal was dismissed for failure to file briefs as directed. On February 6, 1918, motion of appellant to reinstate cause was granted. COBB & GREGORY v. DIES, County county judge, and J. J. Bevil, county clerk, of Hardin county, Tex., to execute and deliver certain warrants of Hardin county. The petitioners alleged, as a basis for this relief, in substance, that, on August 7, 1916, said Hardin county being indebted to the petition- " ers on account of certain road work done and performed in accordance with a contract between said county and petitioners, the account and claim therefor was presented to the commissioners' court of said county, then properly assembled in special session, with Under Rev. St. 1911, art. 2237, providing three commissioners present and attending that the commissioners' court shall be composed (but the county judge and one commissioner (Court of Civil Appeals of Texas. Beaumont. 1. COUNTIES 52-COUNTY COMMISSIONERS |