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seems to us, is basically correct. It is partic- that the cases relied upon only concern matularly so in the light of the statutory defini- ters collateral to the main issue, one of which tion of theft, to constitute which there must expressly and the others inferentially disafconcur by competent evidence a fraudulent firmed the right to establish the very issue taking of corporeal personal property belong- upon which the case turns by such evidence. ing to another from his possession or that of The cases cited below fully sustain the propsome one holding same for him, without the osition that statements of the character unccnsent of either, with intent both to deprive der discussion in the present case are inadthe owner of the value therof and to appro- missible when the purpose is to establish the priate same to the use and benent of the per- issue upon which the case turns. Half v. son taking same. Article 1329, P. C. Article 1329, P. C. Under Curtis, 68 Tex. 640, 5 S. W. 452; Gilbert v. such requirements it is difficult to argue that | Odum, 69 Tex. 670, 7 S. W. 510; Schmick v. the statement of the witness was improperly | Noll, 72 Tex. 1, 8 S. W. 83; Cullers v. Gray, excluded. It is argued by counsel, however, that the statement of the witness was admissible under the holdings in O'Farrell v. O'Farrell, 56 Tex. Civ. App. 51, 119 S. W. 903; Schauer v. Von Schauer, 138 S. W. 145, and Campbell v. Peacock, 176 S. W. 777. The general rule upon which the cases cited proceed, and the rule to be applied to the issue here presented, is that the conclusion, inference, or judgment of the witness is accepted "when

it relates to a fact which is collateral or relatively unimportant, and is rejected where the fact sought to be established is either in issue or so material thereto as to involve the substantial rights of the parties." 27 Cyc. 27. The case first cited was a proceeding for divorce, and the cancellation of a deed taken in the name of the husband, on the ground that the land was purchased with the separate funds of his wife. On trial it developed that the land was paid for in part with proceeds derived from notes. The wife was permitted to say she "owned" the notes, which was objected to on the ground that the statement was the conclusion of the witness. In reviewing the objection and holding the evidence proper the court say:

"Ownership of property is a fact to which a witness may always testify, except when the whole issue of the case turns upon it."

While it cannot be said that the ownership of the notes, which in part paid for the land in controversy, was unimportant, it was nevertheless a collateral issue such as is contemplated by the rule, and one upon which the case did not turn. In the second case cited the witness was permitted to say that his father gave him the note sued on, and that he was the owner thereof. There also the ownership of the note was a collateral issue, the real issue being the defendant's liability on the note. Without any discussion of the rule the court say the evidence was competent, adding that, if mistaken in that respect, sufficient was in the record to establish that fact. In the third case cited one property owner sought to enjoin another from leasing or using property adjacent to the property of plaintiff for a bawdy house. Ownership of the property was proven by showing that defendant rendered same for taxation, collected the rents thereon, and admitted she owned it. There, also, ownership was obviously both a collateral and relatively unimportant issue, and is within the rule cited. It thus appears

57 S. W. 305; Rea v. P. E. Schow & Bros., 42
Tex. Civ. App. 600, 93 S. W. 706; Bank v.
Ricketts, 152 S. W. 646; Magee v. Paul, 159
S. W. 325; Bank v. Cooper, 179 S. W. 295.

[6] Sidney Chubb, having qualified in that respect, testified by deposition that plaintiff in error insured an automobile for Everett S. Jones of the same make, model, engine, and motor number as the one in controversy, whereupon he was asked:

"Did you have any further transaction with Everett S. Jones about this autombile? If so state the nature of the same,' to which he replied, 'Yes.' In March, 1913, the Federal Insurance Company, of which I am treasurer, paid Everett S. Jones for total loss by theft of the said car the sum of $1,700."

On objection the statement that the loss was paid because of "theft" was rejected because the conclusion of the witness. It is contended that the statement of the witness was admissible as a circumstance tending to conclude that the opinion of the witness, show theft. For reasons already stated we gathered from facts out of which he has reasoned his opinion, has no more force to circumstantially prove theft than it has to prove it directly. The difficulty lies in the fact that the witness is not detailing facts and circumstances from which the jury might infer or reason the commission of a theft. On the contrary, he is stating the inferences he has deduced from the facts. The payment of the money by the insurance company, it may correctly be said, evidences the fact that the plaintiff in error believed the car had been stolen. The opinion of the plaintiff in error that the car was stolen would not, however, be admissible to prove in this proceeding that it in fact was stolen, since in the final analysis it would be to deduce from one inference another, and hence too remote to have probative force or value. Crosby v. Ardoin, 145 S. W. 709.

Plaintiff in error tendered in evidence the affidavit of Everett S. Jones, reciting, in substance, that he purchased an automobile of the make, model, and engine and motor number similar with the one in controversy, which was insured by plaintiff in error, and which was subsequently stolen, and on account of which plaintiff in error paid as for a total loss, and by reason of which plaintiff in error was the owner of said car. The affidavit was on objection excluded. The prop

osition is that it was admissible as a bill of sale to show plaintiff in error's ownership of the car. While we think the affidavit was inadmissible for reasons already fully stated, it was further objectionable because it in no respect tended to establish the necessary and controlling issue of theft. Conceding the affidavit to constitute an informal bill of sale, it would be inadmissible to establish theft for the reasons already stated.

about 12,000 acres of land, and the other about 18,000 acres; that in 1910 appellant purchased from appellee the Espejo ranch; that at the time appellant bought the Espejo ranch from appellee there was a well-defined roadway extending from the western end of the Espejo in a northeasterly direction, one end of which was on the Santa Rosa ranch; that, when the Espejo ranch was the property of appellee, this obvious, open, and contin[7] Finally it is contended that the courtuous roadway over the Santa Rosa was made. erred is peremptorily directing verdict for by appellee a servitude on the Santa Rosa defendant in error. The only contention pre- for the benefit of the Espejo. It was alleged sented on that issue not discussed in this that this servitude was one of the appurteopinion is, in substance, that plaintiff in error nances of the Espejo lands, included in the was entitled to recover the automobile on the conveyance from appellee. It was alleged showing made, in the absence of any evidence that the open roadway over the Santa Rosa tending to show that defendant in error was was granted by implication, because it was the rightful owner. Defendant in error was a way of necessity, that appellee had requestin possession of the automobile by purchase ed permision from appellant in 1913 to change from Dees, and it, of course, was the duty of the location of the roadway over the Santa plaintiff in error to prove a better title than Rosa, which request appellant had granted, the prima facie title of defendant in error. and that therefore appellee was estopped from obstructing the roadway; again, it was alleged that persons attending the public school and church at Espejo had customarily used this open and obvious roadway for so many years that such persons, as well as appellant, had acquired the right to the

Finding no reversible error, the judgment is affirmed.

ESPEJO LAND & IRRIGATION CO. v.
URBAHN. (No. 6031.)

(Court of Civil Appeals of Texas. San Antonio. use of the roadway by prescription; and, May 15, 1918.)

finally, it was alleged that the roadway had

1. EASEMENTS 36(3)—ROADWAYS-PERMIS- been dedicated to the public use and acceptSIVE USE EVIDENCE.

Evidence held to show that roadway over defendant's land was used with his permission, and that use was not exclusive, nor adverse, nor reasonably necessary.

2. DEDICATION 44 HIGHWAYS 17 EVIDENCE.

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Evidence held insufficient to show that alleged road was a public way, or was ever dedicated or accepted by the county.

ed by the county as a public road. The dominant and servient lands were described, and the location of the roadway before and after changes in its location were indicated, by a map made a part of the petition. This map disclosed that the Espejo and Santa Rosa ranch had no common boundary, but that they were separated by the width of

Appeal from District Court, Webb County; the Dario Sanchez land, which was 1,000 J. F. Mullally, Judge.

Suit by the Espejo Land & Irrigation Company against Albert Urbahn. Injunction refused, and plaintiff appeals. Affirmed.

Barrett, Eskridge & Barrett, of San Antonio, for appellant. Hicks, Hicks, Dickson & Bobbitt and S. T. Phelps, all of San Antonio, and John A. Valls, of Laredo, for appellee.

SWEARINGEN, J. By this suit the Espejo Land & Irrigation Company, appellant, sought by injunction to restrain Albert Urbahn, the appellee, from obstructing a roadway, hereinafter called the "contested road," which extended in a southwesterly direction for a mile or more from the Laredo public road to the land belonging to Dario Sanchez over appellee's Santa Rosa ranch, of about 12,000 acres. Upon the trial the court, without a jury, refused the injunction.

varas wide. This map further discloses that the same public road to Laredo, into which the contested roadway leads, also runs through the Espejo ranch, and forms the eastern boundary of the western portion of the Espejo, which portion is claimed to have the servitude of the roadway over the Santa

Rosa.

Appellee admitted that there was a roadway as described by appellant, but alleged that it was made and maintained by him for his own convenience in passing from one of his properties to the other; that appellant's use of the roadway was by his permission, requested and granted; that this permission was conditioned upon appellant's keeping the gates of ingress and egress closed, but this condition had never been complied with by appellant; that the public Laredo road was as conveniently reached over appellant's own land as by the roadway over the lands of appellee and Dario Sanchez.

The first amended petition alleges that appellee was the owner of both the Santa Rosa The undisputed facts are that appellee and the Espejo ranches, the one containing owned both ranches, and, while the owner

The judgment of the trial court is affirmed.

SUNSET WOOD CO. v. KELLY et al. (No. 6021.)

of both, in 1910 conveyed the Espejo ranch 194 Am. Dec. 260; Gilder v. City of Brenham, to appellant, retaining the Santa Rosa. Dur- 67 Tex. 345, 3 S. W. 309; Jones on Easements ing the period of unity of ownership, there (1898) § 317, and sections 25, 257, and 262. was an open, obvious, used and continuous There was no express nor implied grant, roadway, located about a mile east of the no way of necessity, none by prescription, Rio Grande river and extending from Zapata nor by estoppel. county, thence in a northerly course about parallel with the meanders of the river, crossing in its course the western end of the lands of the Espejo ranch, and the lands of Dario Sanchez and of the Santa Rosa, finally terminating in the Laredo road, which is a public road of the first class. At the time of the purchase by appellant there was an obvious roadway, which we shall denominate the "tank road," about midway between and parallel with the north and south boundary lines of the Espejo, extending from the road last above described, a distance of two miles, to to the same Laredo public road above mentioned. This Laredo road divides the Espejo ranch into two tracts, and is the eastern boundary of the river end of the Espejo, which contains 3,830 acres of land; and the Laredo road is, of course, the western boundary of eastern parcel of the Espejo. The tank road is as passable a road and in every way as convenient a road for the Espejo ranch to Laredo as the contested road, except that it makes the route from the improvements on the Espejo to Laredo approximately a mile longer.

(Court of Civil Appeals of Texas. San Antonio.
May 1, 1918. Rehearing Denied
May 29, 1918.)
GARNISHMENT 88 AFFIDAVIT GAR-
NISHEE'S RESIDENCE-PARTNERSHIP.
The statute requiring affidavit for garnish-
ment to state the residence of garnishee is
substantially complied with by allegation that
garnishees K. and S. are engaged in business un-
der the name of Army Bank, in B. county, the
presumption being that members of a partner-
ship reside in the county where, as a partner-
ship, they are engaged in business.

Appeal from Bexar County Court for Civil
Cases; John H. Clark, Judge.

Garnishment by the Sunset Wood Company against E. A. Kelly and another. From an adverse judgment, plaintiff appeals. Revers

ed and remanded.

J. D. Dodson, of San Antonio, for appellant. Leonard Brown, of San Antonio, for appellees.

In 1913 appellee had that portion of the FLY, C. J. This is an appeal from a judgcontested road which was on the Santa Rosa ment quashing a writ of garnishment sued discontinued, but made a road for his con-out by appellant against E. A. Kelly and F. G. venience about a half mile further east and in a parallel course with the contested road. Permission to use this new.road was expressly given to the appellant. Both the Santa Rosa and the Espejo were inclosed with fences, with gates where the old contested road and the new one crossed the fences. The Dario Sanchez 2,500 acres, lying between the Santa Rosa and the Espejo, over which the contested road ran for more than a half mile, was not inclosed with fences at the time appellant bought the Espejo.

Saunders, doing business under the name of the Army Bank of Ft. Sam Houston. It was alleged that appellant had sued E. Koerner on a debt due by him to appellant, and that the same was pending in the county court in which the application for garnishment was made. Koerner intervened in the suit and filed a motion to quash, because the affidavit for garnishment failed to state the residence of the garnishee. It was alleged in the petition that:

"E. A. Kelly and F. G. Saunders, engaged_in business under the name of Army Bank of Ft. Sam Houston, in Bexar county, Texas, are indebted to the defendant, or have in their possession effects belonging to the defendant, held in the name of E. Koerner, or in the name Army Building Company."

[1, 2] In deference to the judgment of the trial court, we find that the weight of the evidence establishes as a fact that appellant used the passageway over the Santa Rosa by permission of appellee, and that the use We are of the opinion that the allegation was not exclusive nor adverse, and that the that Kelly and Saunders were engaged in use of the Santa Rosa for a roadway was business under the name of the Army Bank of not reasonably necessary. We further find Ft. Sam Houston, in Bexar county, Texas, as a fact that the said contested road never was an allegation that they resided in Bexar became a public way, and was never county. If they are engaged in business as a dedicated nor accepted by the county. How- firm in Bexar county, the cogent presumption ell v. Estes, 71 Tex. 690, 12 S. W. 62; Wil- would be that they resided in the same county liams v. Kuykendall, 151 S. W. 629; Callan v. in which they were engaged in business. The Walters, 190 S. W. 832; Bowington v. Wil- writ was issued to Bexar county, and was liams, 166 S. W. 719; Sassman v. Collins, served on Kelly and Saunders in that county, 53 Tex. Civ. App. 71, 115 S. W. 337; Hall and, they made no answer, as appears from v. City of Austin, 20 Tex. Civ. App. 63, the bill of exceptions agreed to by counsel 48 S. W. 53; Alley v. Carleton, 29 Tex. 74, for appellees and approved by the court. The

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

provision of the statute as to residence, re-
quiring that it be named in the affidavit, was
to guide the issuance of the writ and to fix
the venue. This is necessary, because a judg-
ment by default may be taken against a gar-
nishee if he resides in the county where the
proceeding is pending; but, if he resides in
another county, a commission must be issued
to take his answers, if he fails to make an
appearance.
Articles 282-292, Rev. Stats.
We think there was a substantial compliance
with the statute in the statement as to res-
idence.

Courts have been very strict in requiring compliance with the statute as to the terms of the affidavit for garnishment, but we have seen no case going as far as was gone in this case. In the case of Dickerson v. Grocery Co., 147 S. W. 695, it was alleged that the garnishee, an insurance company, had agents in a certain county, but it was not stated that they resided therein, and the court held: "It is not alleged in terms in the application that the agents of the garnishee named therein that the agents of the garnishee named therein reside in Henderson county; but we think the language used is equivalent to such an allegation, and substantially meets the requirements of the statute."

To the same effect is Harris v. Cozart, 178

S. W. 733.

It may be, as held in the case of Freeman v. Rice & Irr. Co., 188 S. W. 444, that an allegation that a corporation is doing business in a certain county is not equivalent to an allegation that it resided there; but that is different from an allegation that a partnership, naming its members, is engaged in business in a certain place, which difference is recognized in the case cited.

"Plaintiff would represent and show to the court that it has purchased from various and sundry parties title to a portion of the north and middle Hooe surveys, and also an undivided interest in the south Hooe survey, and owns. the same by fee-simple title, which title was acquired by plaintiff, and is in addition to the title hereinafter mentioned."

And further:

"That, under and by virtue of the facts hereinbefore set forth and conveyances herein beforementioned, this plaintiff acquired and now owns an undivided interest in, and became a joint owner with said defendants in and to, the north and south Hooe surveys."

And further:

"Plaintiff would further represent and show to the court that it has entered upon said north and south Hooe surveys for the purpose of taking possession of that part thereof described in the deed from W. D. Gordon et al. to this plaintiff, and that, notwithstanding it and those under whom it claims own an undivided interest therein, and are tenants in common with defendants, the defendants herein and each of them are now threatening to eject plaintiff from said land, and plaintiff fears that, unless granted the relief hereinafter prayed for, said defendants will eject it from said land and refuse to permit it to remain in possession of any part thereof; that said defendants are now claiming that they are entitled to the exclusive possession of the north. Hooe survey and the south half of the south Hooe survey, and are entitled to hold the same as against this plaintiff; that the portions of said surveys taken possession of and now in the possession of plaintiff are not of any greater value than the remaining portions of said. land, and the parties under whom this plaintiff claims are entitled to a much larger part of said surveys than that conveyed to this plaintiff, and that has been taken possession of by it, which it is using for the purpose of constructing its tram road thereon."

While the court is of the opinion that most. of what the motion requests us to incorporate

The judgment is reversed, and the cause in the opinion as additional allegations in ap

remanded.

KIRBY LUMBER CO. et al. v. BRADFORD
HICKS LUMBER CO. (No. 399.)

(Court of Civil Appeals of Texas. Beaumont.
May 20, 1918.)

pellee's petition is already reflected in the original opinion, still we have no hesitancy in granting the motion for the additional findings above specified, and the same is granted, and it is here now stated that the above allegations were contained in appellee's petition, upon which the judge of the Seventy-Fifth

Appeal from District Court, Tyler County; judicial district acted in granting the tempo

J. Llewellyn, Judge.

On motion for supplementary findings. Motion granted.

For former opinion, see 203 S. W. 418. Andrews, Streetman, Burns & Logue and Kennerly, Williams, Lee & Hill, all of Houston, for appellants. Fisher, Campbell & Amerman, of Houston, Greer & Nall, of Beaumont, and Coleman & Lowe, of Woodville, for appellee.

HIGHTOWER, C. J. Subsequent to the action of the court reversing the judgment in this case, appellee filed a motion requesting this court to let its opinion show that appellee's petition contained the following allegations, in addition to those stated in the original opinion, to wit:

rary injunction in this case, and it is ordered that these supplemental findings be filed as a part of, and to be considered with, the original opinion of the court in this case.

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"Plaintiff in error, plaintiff below, on the 19th day of February, 1916, filed this suit in the county court of Dallas county, at law, Dallas county, Tex. He sues, for himself and as the assignee and legal representative of G. C. Wood, the defendants in error, J. W. Bailey, Charles Mott, N. E. Harper, and B. L. Walkup, both as individuals and as a partnership under the name Dallas Loan Company, for twice $70.15, alleged to have been paid defendants in error as usurious interest by G. C. Wood, and which claim for penalty amounting to $140.30 is alleged to have been transferred by said Wood to plaintiff in error, and for $140, double the amount of usurious interest plaintiff in error alleges he personally paid defendants in error. Plaintiff in error asks for cancellation of certain notes, and a chattel mortgage against a Ford car, and for judgment for $280.30, penalty for the payment of usurious interest. By trial amendment, filed October 10, 1916, plaintiff in error pleads, in lieu of written assignment alleged in his original petition, an oral assignment of date February 10, 1916, and a written assignment, the same as set up in his original petition. Defendants in error answered the original petition March 6, 1916, by general demurrer and general denial, by amended answer, setting up various exceptions, general denial, plea of no partnership, and cross-action on the notes sought to be canceled by plaintiff in error, for the balance due; also sworn denial of partnership. To plaintiff in error's trial amendment, defendants in error filed general and special exceptions, general denial, and that the transfer of cause of action was fraudulent and without consideration. tried The case was October 11, 1916, before a jury. After all the evidence was in, the court, at the request of defendants in error, peremptorily instructed the jury for defendants in error as per charge requested, and the jury returned a verdict accordingly for defendants in error for the sum of $110, etc., and foreclosure of mortgage on the Ford car.

99

G. C. Wood borrowed from N. E. Harper on September 29, 1915, $100, and executed his promissory note to said Harper for $130, and 10 per cent. interest, payable in twelve equal weekly installments, and to secure same executed a mortgage on a Ford automobile. Subsequently, October 22, 1915, Wood borrowed $37.30, and executed his note for $47.30, secured by the same mortgage on the Ford car. The $130 note bears this indorsement: "Without recourse. N. E. Harper"—and credits aggregating $52.55. The evidence shows that $90 was paid on said notes, but there is no evidence stating that said amount was paid as interest. Then Wood sold the automobile to Bowman, and also assigned to him his (Wood's) claim for usury paid, and Bowman assumed the payment of the two said notes and the mortgage securing the same. It is assigned that the court erred in giving a peremptory charge to find a verdict in favor of defendants in error.

The proposition is urged that:

"Plaintiff, having introduced evidence to support a verdict in his favor, was entitled to have the issues submitted to the jury, no matter how strong the contradictory evidence might be. In determining this question the evidence must be considered in its most favorable light for plaintiff in error, disregarding conflicts and contrawhich was a question for the jury.” dictions; they raised the issue of credibility,

[1] The evidence fails to show that any payment was made on usurious interest. The notes on their face do not show usury. At the time the notes were assigned to plaintiff in error there had not been paid on the notes more than $90, and the evidence shows that the borrower had received $137.50 in cash, leaving due on the notes $130, and no witness testified as to what was paid as interest. Payments thus made will be applied by the law to the principal, and not to usury, if there be any in the contract.

the

[2] Under the facts as established plaintiff in error was not entitled to recover double the amount paid as usury, but only entitled to have said amount so paid credited on the principal of the note, and the court was justified in instructing the jury to find a verdict for defendants in error against On the question of usury, plaintiff in error. article 4982 provides, in effect, that when usurious interest is received and collected double that amount can be recovered as a penalty, but as none was shown to have been received and collected, the plaintiff in error was not entitled to recover. Clayton v. Ingram, 107 S. W. 880; Rosetti v. Lozano, 96 Tex. 57, 70 S. W. 204; Long v. Moore, 59 Tex. Civ. App. 579, 126 S. W. 345; Allen v. Bank, 175 S. W. 485; Stewart v. Briggs, 190 S. w.

221.

W.

[3] At the time the claim for usury was assigned by Wood he had not paid any amount as interest, and the amount paid did not exceed the amount received by Wood in cash from Bailey, and therefore no claim for usu

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