at the request of the latter, and that the next day he discovered that Alf Smith had transferred the goats, and was shown the bill of sale to the same by the county clerk, was admissible. If the rest of the testimony was inadmissible, it would avail appellants nothing because of their failure to separate and apply the objections to it.

reversed because it may be made to appear | Mrs. M. A. Smith, that he presented this that part of the evidence was really inadmis- execution to Alf Smith and deferred the levy sible. It seems to be settled by the decisions of our Supreme Court that in such circumstances it is not the duty of the trial court to separate the admissible testimony from the inadmissible, and to apply the objections | in the latter, but that it is the duty of counsel to do so, and to point out specifically each part of the testimony objected to. G. H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Jamison v. Dooley, 98 Tex. 206, 82 S. W. 780; Scott v. Townsend, 106 Tex. 322, 166 S. W. 1138. Other cases to the same effect are: Dolan v. Meehan (Tex. Civ. App.) 80 S. W. 99; Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 451; Lanham v. Lanham, 62 Tex. Civ. App. 431, 146 S. W. 635. As to the sufficiency of the assignments based on such bills of exception, see Mott v. Ins. Co. (Tex. Civ. App.) 154 S. W. 658; O'Brien v. Von Lienen (Tex. Civ. App.) 149 S. W. 723.

[6] In the view we now take of the case. there remains but one other question to consider. Appellants insist that the evidence in this case is insufficient to sustain the verdict and the judgment.

We have given the most careful consideration to all the evidence in the record, and have concluded that, while the evidence impeaching the good faith of Mrs. Smith in the purchase of the note and her claim that she paid value for the same is largely, if not wholly, circumstantial, it is sufficient to support the verdict. It was admitted by Mrs. Smith that she paid Alf Smith $1,000 but one time, which she claims was for the purchase of the note in question, and that this was

tention was called to the bill of sale from Alf Smith to herself, dated March 26, 1918, conveying the goats, and reciting a cash consideration of $1,000, together with other consideration. When questioned about this bill of sale and the $1,000 consideration therein recited, Mrs. Smith disclosed a singular ignorance about it, and a poor memory about the entire transaction. This, together with the other circumstances in the case, was sufficient to warrant the jury in concluding to adopt the appellees' theory of the case, that the $1,000 paid by Mrs. Smith, through her check to Alf Smith, was not in payment for the note, but was part of the consideration for the sale of the goats. If this was true, then Mrs. Smith undoubtedly paid nothing of value for the note, and it was in her hands subject to the defenses urged. It must be remembered that the burden had shifted to her to prove that she had paid value for the note and had acquired it in good faith, the appellees having proven fraud in the inception of the note. The jury were the exclusive judges of her credibility, and had the opportunity of witnessing her demeanor and manner of testifying, as well as her interest in the case. Their finding should not be disturbed unless manifestly wrong.

[5] We have carefully examined the assignments and the bills of exception under each. The proposition presented under these assignments indicates that what the appel-paid about the latter part of March. Her atlants were really complaining of was the introduction of the statements and alleged fraudulent representations of Alf Smith at the inception of the note, and not to his subsequent statements and conduct just before he parted with the note and made the bill of sale to the goats to Mrs. M. A. Smith. We are disposed to agree with appellees that the | assignments do not raise the question upon which we reversed the judgment below. But, if the assignments and the proposition there under should be deemed sufficient to present the question, we think that, in deference to the rule announced by our Supreme Court, we should hold that the assignments must fail because the bills of exception show that the objections were made to the entire testimony shown in the bills, a part of which was unquestionably admissible. We adhere to the view that the fraudulent representations and conduct of Alf Smith in inducing the execution of the note were admissible, whether Mrs. M. A. Smith was present or not, as this proof tended to establish the issue that the note had its inception in fraud. If the other statement subsequently made should be conceded to be inadmissible, the objection is not available here, because the bills did not show that they were urged specifically against the inadmissible testimony, but were made as an entirety. This ruling It is true, as indicated in our former opinapplies not only to the statements of Alf ion, that the attorney for Mrs. Smith testified Smith to Dee Word, but also to the testimony to statements made by her and by Alf Smith, of the sheriff, Frank Emerick. We are of the in his presence, that Mrs. Smith had purchasopinion that at least so much thereof as re-ed the note; that he drew up a check for her lated to his having an execution which he was about to levy upon the goats of Alf Smith, which were then still in the possession of the latter, and had not been sold to

in payment thereof, which she signed and delivered to Alf Smith; and to other circumstances indicating a bona fide purchase. However, this is not sufficient to overcome

(248 S.W.)

the other circumstances in the case, inasmuch tendered to plaintiffs his personal check on as these statements and this conduct may the First State Bank of Garrison, Tex., have all been agreed to and performed by de- for the agreed purchase price of the cattle, sign of the parties in order to deceive the and that Shipp, in order to induce plaintiffs attorney and to strengthen the apparent pur-to deliver to him the cattle, represented to chase.

All other assignments have been considered and are overruled. Our former judgment will be set aside and the judgment will be affirmed.

Motion granted.

GREEN et al. v. CAMMACK et al.
(No. 877.)

(Court of Civil Appeals of Texas.

Beaumont.

Feb. 23, 1923. Rehearing Denied
March 7, 1923.)

them that he had sufficient funds in the bank to meet the check; that acting upon Shipp's statement to plaintiffs, they accepted the check, but for collection only, and at the same time delivered to Shipp the cattle; that the check was promptly sent to the bank for collection, but payment was refused because Shipp had no funds there; that in the meantime defendants Burton and Green had gotten possession of 41 head of the cattle, and defendants Walker, Miller, and Houchins had gotten possession of the remainder of the cattle; that Shipp knew at the time he gave the check to plaintiffs he had no funds in the bank to meet it, and that his represenJudgment 138(1)-Showing held to call for tation to the contrary was fraudulently made setting aside judgment on ex parte hearing. to induce plaintiffs to deliver to him the Judgment against defendant on an ex parte cattle, and that they were so induced; that hearing should be vacated and new trial grant- defendants Burton, Green, Walker, Miller, ed; his application showing some excuse for and Houchins, who got possession of the his failure to be present at the trial, impos- cattle from Shipp, knew at the time they sibility of arrival after notification, and a mer-did so that the cattle did not belong to Shipp, itorious defense, and it not appearing that but that he had gotten possession of them plaintiffs will thereby be materially prejudiced. by fraud, or that by proper diligence they would have known such facts; and that therefore said defendants acquired no property rights in the cattle and had no right to withhold their possession from plaintiffs.

Appeal from District Court, Tyler County; D. F. Singleton, Judge.

Action by T. J. Cammack and others against C. M. Green and others. There was judgment for plaintiffs, and also judgment for defendant J. C. Shipp on his cross-action against certain defendants. Motion of defendants Green and J. E. Burton to vacate the judgment against them and for new trial was denied, and they appeal. Affirmed in part, and in part reversed and remanded for new trial.

V. E. Middlebrook, of Nacogdoches, and E. J. McLeroy, of Timpson, for appellants. Russell & Seale, of Nacogdoches, and J. E. Wheat, Coleman & Lowe, J. A. Mooney, and R. A. Shivers, all of Woodville, for appellees.

The prayer was for title and possession of all the cattle from all the defendants.

Shortly after filing their petition, plaintiffs sued out several writs of sequestration, and these writs were, on July 21, 1920, levied upon a number of these cattle found in possession of the defendants other than Shipp.

All the above-named defendants were duly served with citation of plaintiffs' cause of action, and all answered, defendants Burton and Green interposing a plea of privilege, which was afterwards abandoned, and they then answered to the merits.

Shipp's original answer to plaintiffs' petition consisted of a general demurrer and general denial. In his amended answer he admitted the purchase of the cattle from plaintiffs, and admitted that he had not paid for them, and confessed judgment in favor of plaintiffs for the purchase price of the cattle as claimed by the plaintiffs.

HIGHTOWER, C. J. The appellees, T. J. Cammack, F. D. Price and J. W. Price, who were the plaintiffs below, filed this suit in the district court of Tyler county on June 15, 1920, naming as defendants J. C. Shipp, J. E. Burton, C. M. Green, Henry Walker, Tom Miller, and E. H. Houchins. Plaintiffs, for By way of cross-action against Burton and cause of action, alleged, substantially, that Green, Shipp alleged, substantially, that on May 7, 1920, they made a verbal agree-soon after he purchased plaintiffs' cattle, he ment with defendant Shipp to sell and deliver traded or exchanged them to Burton and to him in Tyler county, Tex., 67 cows and 17 Green for about 70 head of steers and a few yearlings and calves, making in all 84 head head of yearlings; that Burton and Green of cattle; that Shipp was to pay cash for represented to him that the steers and yearthe cattle, the aggregate amount agreed lings were sound and free from ticks, and upon being $2,760; that when plaintiffs came that these representations induced him to to deliver the cattle to him, Shipp, instead make the trade with them; that at the time of paying cash for the cattle, as agreed, of this trade, Shipp had made a contract with

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one J. H. Walker, by the terms of which | against Kelley, Cook, and Blankenship, as Walker was to purchase these steers and sureties on Burton and Green's replevy bond, yearlings from Shipp for the aggregate con- with which Shipp was in no manner connectsideration of $3,026, provided these steers ed. The judgment further recites that the and yearlings were sound and free from plaintiffs, Cammack and others, are entitled ticks; that before the deal could be closed to a lien against all the cattle that they with Walker, these steers and yearlings delivered to Shipp, and the lien was ordered commenced dying from tick fever, and that foreclosed as against all defendants. Other they all died except $625 worth of them, and provisions of the judgment affect parties who thereby Shipp lost his contemplated deal have not appealed. with Walker, and that in consequence he sustained damages in the sum of $2,401, for which amount he prayed judgment against Burton and Green. Burton was never cited on Shipp's cross-action and never answered it. Green filed a plea of privilege as to the cross-action, and this was later overruled,

and he answered to the merits.

On August 24, 1921, the plaintiffs, Cammack and others, filed their first amended original petition, in which they reiterated all the material allegations of their original petition, as against all the defendants. The amendment further showed that the several writs of sequestration sued out by them had been levied upon most of the cattle, which they had delivered to Shipp, and that such cattle had been replevied by the parties in whose possession they were found. Thirtyeight head of the cattle were levied upon in the possession of Burton and Green, and they, as principals, with Stroud Kelley, T. F. Cook, and J. E. Blankenship, as sureties, replevied these cattle; the bond therefor being in the sum of $4,000. It was further shown that some of the cattle were levied on in the possession of Henry Walker, and that these were replevied by Walker, as principal, and Burton and Green sureties on the replevy bond, which was in the sum of $450.

Trial of the cause was had on February 15, 1922, in the absence of Burton and Green, as well as in the absence of their only attorney in the case, and final judgment was rendered against them. We confess that we have had no little difficulty in trying to ascertain just what the judgment provided; but, construing it in the light of the record, we have reached the conclusion that the court rendered the following judgment:

On February 16, 1922, the next day after the judgment was rendered, the attorney for Burton and Green, Hon. V. E. Middlebrook, reached the courthouse at Woodville, and filed a motion praying the court to vacate the judgment in so far as his clients were affected by it, and requested the court to grant them a new trial of the case on its merits. In this motion a number of grounds were advanced, and among them the fact that the judgment was rendered in the absence of himself and clients, and that such absence was, under the circumstances excusable. The entire motion, considered in connection with the exhibits attached, is quite lengthy, and no useful purpose would be served by setting it out in full. Suffice it to say that the motion showed a meritorious defense on the part of Burton and Green to the cause of action asserted by the plaintiffs, Cammack and others, against them, and also a meritorious defense to the cross-action of Shipp.

The court heard the motion on the next day (February 17th) after it was filed, and overruled it, and from that action Burton and Green have prosecuted this appeal.

advanced a number of reasons which it is In his brief, counsel for appellants has claimed compel this court to reverse and render the judgment in favor of appellants. Such contentions have had our careful consideration, but we have reached the conclusion that they ought not to be sustained, and they are therefore overruled.

It is next insisted that the judgment itself is so vague, indefinite, and uncertain in its provisions that no execution could be properly issued upon it, and that therefore reversal, at least, should follow. The judgment is rather lengthy, too much so to be here shown in full, and, as we have stated, The original plaintiffs, Cammack and we have found no little difficulty in arriving others, were awarded judgment against at its full meaning. So far, however, as Shipp for $2,438.01. The same plaintiffs appellants are concerned, we think the judg were also awarded judgment against Burton and Green and the sureties on their replevy bond above mentioned, Kelley, Cook, and Blankenship, in the sum of $1,520, and they were also awarded judgment against Burton and Green as sureties on J. H. Walker's replevy bond above mentioned for $160.

On his cross-action against Burton and Green, Shipp was awarded judgment against them for $3,026, which was in excess of the amount sought to be recovered against them by more than $600; and Shipp was also awarded judgment in the same amount

ment, when considered in the light of the record, is sufficiently definite and therefore overruled this contention.

It is next contended that the lower court was in error in not vacating the judgment as to appellants and in refusing to grant them a new trial upon the merits, for the reason that their motion therefor showed a meritorious defense to the cause of action asserted against them by the plaintiffs, as wel! as to that asserted by Shipp in his crossaction, and that their motion further showed facts that, if true, reasonably excused appel

(248 S.W.)

lants and their counsel for not being pres- a telegraphic message to the district judge at ent at the trial. We have examined the record very carefully in connection with this contention, and have reached the conclusion that it must be sustained.

at Austin, and on account of the attorney's that the case had been heard and that judgengagement in the murder case in Cherokee ment had been rendered against his clients. county, the Governor had postponed the Thereafter, appellants' attorney left Beauextradition proceeding at Austin, and had set mont on the first train for Woodville, and it for February 14th, and had notified appel- filed the motion to vacate and for new trial, lants' attorney to be at Austin on that date. as shown above. When the case in Cherokee county was concluded, appellants' attorney left for Austin to be present at the extradition proceeding before the Governor.

On the morning of February 14th, appel- therefore assume that all such statements lants' attorney's stenographer, at his office in the town of Nacogdoches, Tex., received notice of the setting of this case at Woodville, in Tyler county, and she at once sent a telegraphic message to appellants' attorney at Austin, notifying him of the setting of this case. This message was received by appellants' attorney in the afternoon of the same day, but at that time there was no way for him to leave Austin for Woodville before Now, what is the rule in this state govern10:15 that night. Upon receipt of this mes- ing an application to vacate a judgment and sage, appellants' attorney immediately sent grant a new trial where the judgment against

tween said plaintiffs and all parties, other than Burton and Green, and said sureties, will be also affirmed; and the cause will be remanded for trial as between the original plaintiffs and Burton and Green, and also between Shipp on his cross-action and Burton and Green. It has been so ordered.

the defendant was rendered upon an ex parte so far as it in any manner affects the appelhearing? It seems that the rule, as announc- lants Burton and Green and sureties on their ed by practically an unbroken line of deci- replevy bond. The judgment in favor of the sions, is that if the application shows some original plaintiffs, Cammack and others, excuse for the defendants' failure to be against the defendant Shipp, will be in all present at the trial, and further shows a things affirmed; and the judgment as bemeritorious defense to the plaintiffs' cause of action, it should be granted, unless to do so would materially prejudice the plaintiffs' rights in some way. The appellate courts have been very liberal in applying this rule, and have often reversed trial courts for ignoring it. Dowell v. Winters, 20 Tex. 797; Scottish, etc., Insurance Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109; Sevier v. Turner (Tex. Civ. App.) 33 S. W. 294; Springer v. Gillespie (Tex. Civ. App.) 56 S. W. 369; Sedberry v. Jones, 42 Tex. 10; Robinson v. Collier, 53 Tex. Civ. App. 285, 115 S. W. 915; Pecos, etc., Railway Co. v. Faulkner (Tex Civ. App.) 118 S. W. 747; Dancy & Co. v. Rosenberg (Tex. Civ. App.) 174 S. W. 831.

In Scottish, etc., Insurance Co. v. Tomkies, supra, the court, after quoting at length from the opinion of Judge Wheeler in Dowell v. Winters, concludes as follows:

"It thus appears that the Supreme Court undertook as early as 1858 to establish a uniform practice in the courts of this state, referable to some general principle, which is that such applications should be determined by considerations of convenience and equity-convenience if a trial can be held during the term, and equity if a meritorious defense is shown, accompanied by some excuse for not presenting it; and, the rule for such determination is stated to be that where the trial has not been delayed, and there is an affidavit of merits, the default should be set aside and the answer received, upon some showing by way of excuse for failure to plead in time. The rule thus announced has not been modified by any of the şubsequent cases. There may be expressions in some of the cases that would seem to do so, but an analysis of the facts will show that the application was made after the term, or that there were some other distinguishing circumstances."

EVANS et al. v. SMOOT et al. (No. 10039.)*
(Court of Civil Appeals of Texas. Fort Worth.
Dec. 9, 1922. Rehearing Denied
March 3, 1923.)

1. Appeal and error 1071(1)-Failure to
file findings and conclusions within time re-
quired not reversible error in absence of prej.
udice, where full statement of facts is filed.

When a full statement of facts agreed to by counsel for all parties is filed with the record, the trial court's failure to file his findings of fact and conclusions of law within the time required by the statute is not reversible error, in the absence of a showing that appellants were prejudiced thereby.

2. Husband and wife262(1)-Land conveyed to married woman presumed community property, in absence of stipulation or evidence to contrary.

In the absence of a stipulation in a deed to a married woman, or other evidence, that the land was conveyed to her as her separate property, it is presumed to be the community property of herself and husband.

3. Adverse possession 112-Plaintiffs must establish title by preponderance of evidence.

In trespass to try title to land claimed by adverse possession, the burden is on plaintiffs to establish such title by a preponderance of evidence.

So, in this case, we think it is clear from the statement we have made above that at least some excuse was shown for appellants and their counsel not being present at the trial of this case, and as their motion to vacate showed a meritorious defense to the causes of action asserted against them, both by the original plaintiffs and the cross-action of Shipp, and since, as we have shown, there is nothing in this record that indicates that the appellees would be seriously inconvenienced or that the trial would be materially delayed had the judgment been vacated, the trial court, under the rule announced by all of the above-cited authorities and many others as well, erred in refusing to sustain the motion and vacate the judgment. For that error, the judgment must be reversed in Conner, C. J., dissenting.

4. Adverse possession 57 Evidence held insufficient to establish title in plaintiffs' parents.

In trespass to try title to a lot used by plaintiffs' father from 1893, in connection with an adjoining lot occupied by him and his wife under color of title until 1900, when they conveyed the latter lot to defendant and her husband, with whom they continued to live, occupying and using both lots until the father's death in 1901, after which his widow continued to live with grantees until her death in 1908, evidence held insufficient to show that the father's adverse possession of the lot in suit was continued by his widow until 1903, when the 10 years' period of limitation would have been complete.

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Writ of error dismissed for want of jurisdiction April 18, 1923.