(248 S.W.) so; that in refusing to issue the license the city had neither divested the plaintiff of a right nor deprived him of his property. [3] In 19 R. C. L. p. 975, § 272, it is said: "When an occupation is of such a character that a municipal corporation under a general grant of the police power is justified in regulating it in the interests of the public health, morals, safety, or welfare, and, as an incident to such regulation, in requiring a license to be taken out by all who seek to engage therein, the power of the municipality to revoke such a license whenever in the opinion of the municipal authorities the public interests require such action is inherent, and may be exercised without previous notice to the holder of the license and without affording him an opportunity to be heard. In such case the licensee has no redress, provided the action of the municipal authorities was not arbitrary, tyrannical, unreasonable, or based upon false information." This rule applies to a license levied and collected for the purpose of paying for the police regulation of the occupation license, and does not apply to a license levied for the purpose of raising revenue. [4] There is nothing in the record to support the contention of appellant that the ground, or at least the only ground, the city of Cisco had for revoking his license was his violation of the ordinance prohibiting the owner or driver of any motor vehicle to knowingly carry intoxicating liquors for beverages, or to carry women for immoral purposes. If the city commission had the power and authority to revoke the license of the plaintiff for any reason that would have authorized them to refuse to issue the license in the first instance-and we believe this to be undoubtedly the law-there is nothing in the record to show or suggest that one or more of such reasons did not exist in the instant case. Appellant may have been a reckless driver, or he may have been in the habit of getting drunk while driving his car, or information may have come to the city commissioners of the existence or occurrence of any number of acts on the part of appellant, which in good conscience would have authorized said city commissioners to revoke the license theretofore issued. When notified to appear before said commissioners, the plaintiff refused or failed to do so, and we do not think that he is now in a position to complain of the action of the city council in revoking his license, or of the action of the district judge in refusing to issue the temporary restraining order prayed for. case would be presented than the one at bar. Or, if, upon application to the city commissioners to grant him a license, and their refusal to do so, it is shown that their action is not warranted under the law, and is discriminatory, unreasonable, and arbitrary, a different case would be presented. But as to the case presented in the record before us, we find no error in the refusal of the district judge to issue the temporary injunction prayed for, and the judgment be low is affirmed. KLETT, J. The judgment for principal, interest, and attorney's fees was rendered against appellant L. A. Kennedy, as principal, and appellant R. Q. Kennedy, as surety, on a promissory note of $1,500, sued on by the appellee G. W. McCauley, as plaintiff, in the district court of Collingsworth county. While the conclusions above stated au- The appellant L. A Kennedy defended the thorize and require us to affirm the judg- suit on the ground that the note was given ment below, yet if plaintiff upon a hearing in settlement of a gambling transaction and on the merits can show that the action of was void under the laws of Texas, prohibitthe city commissioners was arbitrary, un- ing contracts in "futures," in that the note reasonable, or tyrannical and is discrimi- was executed in payment of the difference natory against the appellant, a different between the contract price and market value For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Writ of error dismissed for want of jurisdiction April 4, 1923. Life Insurance Co. v. Stuart (Tex. Civ. App.) 201 S. W. 1091. The above holding elimi nates the appellant's further contention that the note sued on is void because given in settlement of a gambling transaction. of 25 bales of cotton, which, it is claimed, App.) 230 S. W. 844; Clark v. Merriam & appellant L. A. Kennedy had contracted to Milliard Co. (Tex. Civ. App.) 223 S. W. 869; deliver to appellee in the future, but which the parties mutually understood was not actually to be delivered. The appellant R. Q. Kennedy claimed there was no consideration for his signing the note as surety, in that the debt which he promised to pay was the gambling debt of another, and past due when he signed the note given to cover said debt. The sufficiency of the evidence to show that there was a bona fide agreement to make an actual delivery of the cotton is assailed. As already indicated, the testimony on this issue was conflicting, but ample to sustain the judgment of the trial court. Kennedy v. McCauley, 236 S. W. 754. The trial was before the court without a jury. No findings of fact or conclusions of law appear in the record. The evidence shows that, in the spring of 1919, defendant L. A. Kennedy contracted in writing to de- [3] The appellant R. Q. Kennedy advances liver to appellee on November 20, 1919, 25 the proposition that the execution of a note bales of cotton at 17 cents per pound, though by a surety to secure the payment of a previcotton had a market value of 22 cents per ous obligation is without consideration. This pound when the agreement was made. The proposition cannot be sustained, in view of contract had been misplaced at the time of the facts of this case, for the reason that trial, but proof of its contents was parol the 12 months' extention of time granted to testimony. At the time of delivery, the the principal was a sufficient consideration cotton had a market value of 39 cents per to bind the surety. Bonner Oil Co. v. Gaines. pound. Appellee failed to deliver the cotton 108 Tex. 232, 191 S. W. 552, Ann. Cas. 1918C, on the date agreed upon, and on December 10, 574; Hanney v. Moody & Co., 71 S. W. 325. 1919, appellant L. A. Kennedy and appellee Finding no reversible error, the judgment settled their contract by appellant L. A. is affirmed. Kennedy promising to pay appellee $2,500. As part of the settlement, the appellee agreed to accept the note sued on, with the under LEY. (No. 2644.) standing it would be signed by appellant TWO STATES TELEPHONE CO. v. HUR. R. Q. Kennedy and made payable 12 months after its date. Accordingly the note was executed, delivered, and accepted as agreed upon. There was a dispute in the testimony as to whether or not there was an intention or agreement to make actual delivery of the cotton. The appellants say in their brief: [1, 2] The appellants' first and principal contention is that a contract for the future delivery of cotton or any other commodity is presumed to be a gambling transaction. The contention must be overruled, as it omits elements necessary to create a wagering contract. All issues of fact being resolved in favor of the judgment rendered, we find that the parties to this appeal made a bona fide agreement actually to deliver the cotton at a fixed price on a day certain. Such a contract is not condemned as one dealing in "futures." Penal Code, arts. 538-547; Smith v. Duncan (Tex. Com. App.) 209 S. W. 143; Cleveland v. Heidenheimer, 92 Tex. 108. 46 S. W. 30; same case (Tex. Civ. App.) 44 S. W. 551; same case (Tex. Sup.) 17 S. W. 524; Puckett v. Wilson Bros. (Tex. Civ. App.) 211 S. W. 642; Fenter v. Robinson (Tex. Civ. (Court of Civil Appeals of Texas. Texarkana. I. Electricity 19(5)-Finding that fire was In an action against a telephone company for the value of household goods destroyed by fire, evidence held sufficient to support a finding that the fire originated from telephone wires coming in contact with electric light wires. 2. Appeal and error 930 (2)—Jury instructed to find value of plaintiff's property assumed not to have included property she did not 3. New trial 108(2)-Newly discovered testimony held insufficient to authorize new trial. Testimony of a witness, discovered after the trial of an action in which plaintiff had judgment for the value of household goods destroyed by fire, found to have been caused by telephone wires coming in contact with electric light wires, that when he first saw the building the smoke was coming through the roof, held insufficient to authorize a new trial For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes (248 S.W.) as requiring a different finding as to how the fire originated. were heard at or about the time the fire originated, indicating an unusual condition in the telephone instrument. The fire appar Appeal from District Court, Hopkins Coun- ently originated about where the wires were ty; Geo. B. Hall, Judge. Action by Mrs. Mayme Hurley against the Two States Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed. Clark & Sweeton, of Greenville, and Dial, Melson & Davidson, of Sulphur Springs, for appellant. Connor & Ramey, of Sulphur Springs, for appellee. HODGES, J. The appellee filed this suit to recover the value of household goods destroyed by fire in February, 1920. At that time she occupied a rooming house on one of the principal streets in Sulphur Springs, Tex. The fire occurred at about 11 o'clock at night. She seeks to recover the sum of $5.641.75, the alleged value of the furniture, wearing apparel, and other property destroyed. It is alleged that the fire originated because of the negligence of the appellant in permitting its telephone wires to come in contact with a heavily charged electric light wire belonging to another corporation. The house occupied by the appellee was situated on the south side of College street. The telephone wires in entering the building passed under the wires of the electric light company. In response to special issues, the jury found (1) that the wires of the appellant going into the house occupied by the plaintiff came in contact with the electric light wires; (2) that such contact was the result of negligence on the part of the appellant in the construction and maintenance of its line; (3) that such negligence was the proximate cause of the fire; (4) that the actual value of the plaintiff's property destroyed was $1,500. The telephone company has appealed, and presents three principal grounds for a reversal of the judgment: (1) That the evidence was insufficient to sustain a finding that the fire originated from the telephone wires; (2) that the appellee was allowed to recover for the loss of property she did not own; (3) that a new trial should have been granted upon the ground of newly discovered evidence. These will be discussed in the order above stated. located in the house. It was shown that there was no other probable cause for the fire. While the finding of the jury upon that issue would be more satisfactory if based upon stronger circumstances, we cannot say it was without sufficient legal support. [2] Concerning the second question, the evidence showed that a part of the property burned belonged to the community estate of the appellee and her deceased husband, and a part belonged to her two minor children. The greater part of it, however, was hers individually. The total amount sued for was over $5,000. The amount recovered was $1,500, which is less than that which the plaintiff under the evidence had a right to recover if her testimony as to the value of her own property be correct. In the question submitted the court required the jury to find the value of the "plaintiff's property." We must assume, in the present state of the record, that this instruction was obeyed and that the jury did not include in that valuation property which the plaintiff did not own. [3] Appellant claims that after the trial it discovered a witness who would testify to new and important facts. An examination of the affidavit of this witness discloses that his testimony would not, if true, require a different finding upon the important issue as to how the fire originated. When he first saw the building, according to his statement, the smoke was coming through the roof of the house. He knows nothing about where the fire first broke out. His testimony is not materially different from that which was adduced upon the trial. The judgment will be affirmed. CALDWELL et al. v. FARRIER et al. (Court of Civil Appeals of Texas. San Antonio. Feb. 7, 1923. Rehearing Denied Feb. 28, 1923.) 1. Partition 43-"Cotenancy" used without regard to distinction between different forms of tenancy in statute as to venue of partition suits. [1] The evidence relied upon to show the cause of the fire was in the main circumstan"Cotenancy," which is broad enough to tial. The telephone wires passed under and comprise both tenancy in common and joint tenin close proximity to a primary and heavily ancy, was used in Vernon's Sayles' Ann. Civ. charged electric light wire a short distance St. 1914, art. 1830, exception 13, as amended from the residence that was burned. Flashes by Laws 1919, c. 93 (Vernon's Ann. Civ. St. of light had been seen by observers to pass that when the "cotenancy" of any of the parSupp. 1922, art. 1830, exception 13), providing between the telephone wires of the appellant ties to a partition suit is established or beand electric light wires at or about the point comes an issue of fact, it shall not be held that where they crossed. Noises emanating from the real purpose was to try title, so as to the telephone instrument in the residence require that the suit be brought in the county For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes where the land is (exception 14), without regard to any distinction between the different forms of tenancy; the object of partition proceedings being to enable persons owning property, whether as joint tenants, coparceners; or tenants in common, to end the tenancy and allot each his part of the property. 2. Partition 14-Any cotenant may demand partition. Any cotenant may demand partition as a matter of right. Humble Pipe Line Company, and the Magnolia Petroleum Company, with offices and agents in Breckenridge, Stephens county, and the Sinclair Pipe Line Company, with office and agent in Breckenridge. This is an appeal from a judgment denying appellants a change of venue from Live Oak county to Stephens county, where the land is situated and all the appellants reside except H. D. House, who lives in Live Oak county. The general provision in regard to suits for 3. Partition43-Venue lies in any county the recovery of land or damages thereto, suits in which any defendant resides. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 1830, exception 13, as amended by Laws 1919, c. 93 (Vernon's Ann. Civ. St. Supp. 1922, art. 1830, exception 13), authorizing partition suits in any county in which any defendant resides, though one or more may assert an adverse interest in, claim ownership of, or seek to recover title to the land, unless the real purpose is to recover title to land in another county, but providing that, if a cotenancy is estabilshed or becomes an issue of fact, it shall not be held that the real purpose is to try title, a partition suit may be brought in a county in which one defendant lives, though the land is not located therein, where it appears from plaintiffs' pleading that an issue as to cotenancy exists; exception 13, as amended, being no more in conflict with exception 14, requiring that suits to recover land or damages thereto, etc., be brought in the county where the land is, or Rev. St. art. 6097, than before the amendment. Appeal from District Court, Live Oak County; M. A. Childers, Judge. Suit by Mrs. Jennie Farrier and others against C. M. Caldwell and others. From a judgment denying a change of venue to another county, defendants appeal. Affirmed. A. S. Hardwicke, of Dallas, Wilson & Alred, of Breckenridge, and T. H. Miller, of George West, for appellants. to remove incumbrances upon the title to land, and suits to prevent or stay waste on lands is that they must be brought in the county in which the land, or a part thereof, may lie. Article 1830, exception 14, Vernon's Sayles' Civ. Stats. In exception 13, of article 1830, as amended in 1919 (Laws 1919, c. 93 [Vernon's Ann. Civ. St. Supp. 1922, art. 1830, exception 13]), it is provided: "Suits for the partition of lands or other property may be brought in the county where such lands or other property or a part thereof may be, or in the county in which one or more of the defendants reside, and any such suit for partition of lands or any other property may be brought and prosecuted in the county of the residence of any one or more of the defendants, notwithstanding any one or more of such defendants may assert an adverse interest in such property, or claim to be the owner there. of, or seek to recover the title to the same, provided that nothing herein shall be construed to fix venue of any suit whose real purpose is to recover the title to land other than in the county where such land, or part thereof, may lie, but whenever, on the trial of the case, the cotenancy of the parties or any of them is established, or becomes an issue of fact, it shall not be held that the real purpose of the suit was to try the title of the land." It is clear from the language of the amendment that the object and aim thereof was to Sid. B. Malone, H. S. Bonham, and L. D. fix the venue of partition suits, not only in Stroud, all of Beeville, for appellees. FLY, C. J. This is a suit ostensibly for partition of a part of block No. 74, in the town of Breckenridge in Stephens county, Tex., and for an accounting with C. M. Caldwell and judgment for the amount of money received by him from the sale of shares of oil rightfully belonging to appellees, which was instituted by Jennie Farrier, joined by her husband, F. M. Farrier, and Joseph B. White, who reside in Live Oak county, Myrtle Brown, joined by her husband, Bolivar Brown, who reside in Hood county, and Byron White, who resides in San Patricio county, suing for themselves and as the next friends of Charley Richards, Jr., a junior, residence unknown, and Charley Richards, Sr., residence also unknown, against H. D. House, residing in Live Oak county, C. M. Caldwell, residing in Stephens county, the counties where the land or other property might be, but also in those where one of the defendants might live, and while it is provided that venue could not be fixed in any county except where the land is situated where the real purpose is to recover title, that is so conditioned as to destroy much of its vitality. On its face, this suit is one for partition and not an action of trespass to try title, and the question of whether it is in reality such an action or not is the only issue in the case, because it was in effect admitted that H. D. House did own an interest in the land and resided in Live Oak county, which fact would place the venue for an action to partition land. An attorney for appellants admitted, and such admission is embodied in the statement of facts, that no effort would be made to show that the assignment of an interest in the land was not made in good faith, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S. W.) that, so far as the plea of privilege is con- [ fore the enactment of the amendment of 1919, cerned, the question could not be raised, which of course eliminates the question so far as this appeal is concerned. The facts show that H. D. House is a resident of Live Oak county, Tex., that an interest of one ninety-sixth in the land in controversy was conveyed to him in good faith by Joseph B. White, and that he is the owner of the same. None of the appellees has lived on the land in question in the last five years. [1, 3] In arriving at whether the real pur and consequently shed no light on the proper construction to be placed upon it. The amendment of 1919 is the last expression of the Legislature on the subject, and authorizes the prosecution of this suit in Live Oak county. The judgment is affirmed. (No. 2072.) (Court of Civil Appeals of Texas. Amarillo. Feb. 7, 1923. Rehearing Denied March 7, 1923.) 1. Pleading 11-Overruling plea of privilege without serving defendant with notice of filing controverting affidavit and order setting it down for hearing held reversible error. In an action by the owner of a motor truck against mortgagees for wrongfully taking the truck, in which defendants filed a plea of privilege to be sued in the county of their residence, after which plaintiffs filed a controverting affidavit that the action was for trespasses committed in the county where suit was brought, and the court noted an order setting a hearing on the affidavit, rendering a judgment, without further appearance of defendants, overruling the plea of privilege, and on the merits for plaintiffs, without serving notice on defendants of the filing of the controverting affidavit and the order setting the hearing thereon, as required by Rev. St. Art. 1903, was reversible error, there being no presumption of service of the notice, regardless of a recital in the judgment that defendants were duly served. 2. Pleading pose is to try title and not merely to parti- DENBY TRUCK CO. v. THOMPSON et al.* tion the statute quoted, makes the decision on the question as to whether cotenancy is established an issue of fact, and the determination of this case must rest on that issue. Appellants seek to draw a distinction between cotenants and tenants in common, but we have nothing to do with any such distinction, if any now exists. Cotenancy is a term broad enough under modern interpretation to comprise both tenancy in common and joint tenancy, and was no doubt used by the Legislature in its broadest sense, without regard to any subtle distinction between the technical different forms of tenancy. 7 Ruling Case Law, Cotenancy, §§ 1, 2, pp. 809, 810. The object of partition proceedings is to enable those who own property as joint tenants or coparceners or tenants in common to end the tenancy and allot to each his part of the prop erty, and partition and cotenancy are used by the Legislature to include all the forms of tenancy. Any cotenant may demand partition as a matter of right. 20 Ruling Case Law, § 27, p. 743. And under section 13, as amended, when the question of cotenancy is established, or even is an issue of fact, it cannot be held that the real purpose of the suit was to try title to land. The pleadings of appellees show that an issue exists as to cotenancy and venue would obtain, "notwithstanding any one or more of such defendants may assert an adverse interest in such property or claim to be owner thereof, or seek to recover the title to the same." In other words, if the status of the case is to be fixed by the pleadings, it would be by those of the plaintiff rather than by those of the defendant. The defendant cannot transform a suit for partition into one of trespass to try title by his pleadings as formerly, and that is about all that appellants have to depend on in this case. The statute as amended in 1919 is no more in conflict with exception 14 of the same article, nor with Rev. St. art. 6097, than it was before the amendment. If the real object of the suit is to try title to land, it must be brought in the county in which the land or a part thereof is situated, but if it appears that a cotenancy in the land exists, it shall not be held that the real purpose of the suit is to try title to the land. All of the deci- Error from District Court, Deaf Smith sions cited by appellants were rendered be- County; Reese Tatum, Judge. -Notice of affidavit controverting plea of privilege and order setting it for hearing jurisdictional. Under Rev. St. art. 1903, providing for service of notice on defendants of filing of an affidavit controverting a plea of privilege to be sued in the county of defendants' residence, issuance and service of regular judicial process as provided for by article 2119 is jurisdictional. 3. Pleading 11-Facts stated in affidavit controverting plea of privilege to be sued in county of defendants' residence held sufficient to maintain venue in county where suit was begun. In an action by owners of a motor truck against mortgagees of the truck for taking the truck, in which defendants filed a plea of privilege to be sued in the county of their residence, a controverting affidavit by plaintiffs to the effect that the suit was for damages for trespasses committed in the county in which suit was begun stated facts sufficient to maintain the venue in the county in which the suit was begun. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |