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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 at the request of the latter, and that the next of our Supreme Court that in such circum- day he discovered that Alf Smith had transstances it is not the duty of the trial court ferred the goats, and was shown the bill of to separate the admissible testimony from sale to the same by the county clerk, was adthe inadmissible, and to apply the objections | missible. If the rest of the testimony was in the latter, but that it is the duty of coun- | inadmissible, it would avail appellants nothsel to do so, and to point out specifically each ing because of their failure to separate and part of the testimony objected to. G. H. & apply the objections to it. S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S. [6] In the view we now take of the case, W. 877, 66 Am. St. Rep. 894; Jamison v. there remains but one other question to conDooley, 98 Tex. 206, 82 S. W. 780; Scott v. sider. Appellants insist that the evidence in Townsend, 106 Tex. 322, 166 S. W. 1138. this case is insufficient to sustain the verdict Other cases to the same effect are: Dolan v. and the judgment. Meehan (Tex. Civ. App.) 80 S. W. 99; Wells We have given the most careful considerv. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. ation to all the evidence in the record, and 451; Lanham v. Lanham, 62 Tex. Civ. App. have concluded that, while the evidence im431, 146 S. W. 635. As to the sufficiency of peaching the good faith of Mrs. Smith in the the assignments based on such bills of ex- purchase of the note and her claim that she ception, see Mott v. Ins. Co. (Tex. Civ. App.) paid value for the same is largely, if not 154 S. W. 658; O'Brien v. Von Lienen (Tex. wholly, circumstantial, it is sufficient to supCiv. App.) 149 S. W. 723.

port the verdict. It was admitted by Mrs. (5) We have carefully examined the as-Smith that she paid Alf Smith $1,000 but one signments and the bills of exception under time, which she claims was for the purchase each. The proposition presented under these of the note in question, and that this was assignments indicates that what the appel- paid about the latter part of March. Her atlants were really complaining of was the intention was called to the bill of sale from All troduction of the statements and alleged Smith to herself, dated March 26, 1918, confraudulent representations of Alf Smith at veying the goats, and reciting a cash conthe inception of the note, and not to his sub- sideration of $1,000, together with other sequent statements and conduct just before consideration. When questioned about this he parted with the note and made the bill of bill of sale and the $1,000 consideration sale to the goats to Mrs. M. A. Smith. We therein recited, Mrs. Smith disclosed a sinare disposed to agree with appellees that the gular ignorance about it, and a poor memory assignments do not raise the question upon about the entire transaction. This, together which we reversed the judgment below. But, with the other circumstances in the case, if the assignments and the proposition there was sufficient to warrant the jury in conunder should be deemed sufficient to present cluding to adopt the appellees' theory of the the question, we think that, in deference to case, that the $1,000 paid by Mrs. Smith, the rule announced by our Supreme Court, through her check to Alf Smith, was not in we should hold that the assignments must payment for the note, but was part of the fail because the bills of exception show that consideration for the sale of the goats. If the objections were made to the entire tes- this was true, then Mrs. Smith undoubtedly timony shown in the bills, a part of which paid nothing of value for the note, and it was unquestionably admissible. We adhere was in her hands subject to the defenses to the view that the fraudulent representa- urged. It must be remembered that the tions and conduct of Alf Smith in inducing burden had shifted to her to prove that she the execution of the note were admissible, had paid value for the note and had acquired whether Mrs. M. A. Smith was present or it in good faith, the appellees having proven not, as this proof tended to establish the is- fraud in the inception of the note. The jury sue that the note had its inception in fraud. were the exclusive judges of her credibility, If the other statement subsequently made and had the opportunity of witnessing her should be conceded to be inadmissible, the demeanor and manner of testifying, as well objection is not available here, because the as her interest in the case. Their finding bills did not show that they were urged spe-should not be disturbed unless manifestly cifically against the inadmissible testimony, wrong. 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 in payment thereof, which she signed and dewas about to levy upon the goats of Alf livered to Alf Smith; and to other circumSmith, which were then still in the posses-stances indicating a bona fide purchase. sion of the latter, and had not been sold to However, this is not suficient to overcome (248 S.W.2 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., hare all been agreed to and performed by de- j 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.

them that he had sufficient funds in the bank All other assignments have been consid- to meet the check; that acting upon Shipp's ered and are overruled. Our former judg- statement to plaintiffs, they accepted the ment will be set aside and the judgment will check, but for collection only, and at the be afirmed.

same time delivered to Shipp the cattle; Motion granted.

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 GREEN et al. v. CAMMACK et al.

had gotten possession of 41 head of the cattle, (No. 877.)

and defendants Walker, Miller, and Houchins

had gotten possession of the remainder of (Court of Civil Appeals of Texas. Beaumont. the cattle; that Shipp knew at the time he Feb. 23, 1923. Rebearing Denied

gave the check to plaintiffs he had no funds March 7, 1923.)

in the bank to meet it, and that his represenJudgment Ew 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 Appeal from District Court, Tyler County;

therefore said defendants acquired no propD. F. Singleton, Judge.

erty rights in the cattle and had no right to Action by T. J. Cammack and others withhold their possession from plaintiffs. against C. M. Green and others. There was

The prayer was for title and possession of judgment for plaintiffs, and also judgment all the cattle from all the defendants. for defendant J. C. Shipp on his cross-action

Shortly after filing their petition, plaintiffs against certain defendants. Motion of defendants Green and J. E. Burton to vacate these writs were, on July 21, 1920, levied

sued out several writs of sequestration, and the judgment against them and for new trial was denied, and they appeal. Affirmed in upon a number of these cattle found in pos

session of the defendants other than Shipp. part, and in part reversed and remanded for

All the above-named defendants were duly new trial.

served with citation of plaintiffs' cause of V. E. Middlebrook, of Nacogdoches, and action, and all answered, defendants Burton E. J. McLeroy, of Timpson, for appellants. and Green interposing a plea of privilege,

Russell & Seale, of Nacogdoches, and J. E. which was afterwards abandoned, and they Wheat, Coleman & Lowe, J. A. Mooney, and then answered to the merits. R, A, Shivers, all of Woodville, for appellees. Shipp's original answer to plaintiffs' peti.

tion consisted of a general demurrer and HIGHTOWER, C. J. The appellees, T. J. general denial. In his amended answer he Cammack, F. D. Price and J. W. Price, who admitted the purchase of the cattle from were the plaintiffs below, filed this suit in plaintiffs, and admitted that he had not paid the district court of Tyler county on June 15, for them, and confessed judgment in favor 1920, naming as defendants J. C. Shipp, J. E. of plaintiffs for the purchase price of the Burton, C. M. Green, Henry Walker, Tom cattle as claimed by the plaintiffs. 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, I of this trade, Shipp had made a contract with

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

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 On February 16, 1922, the next day after sustained damages in the sum of $2,401, for the judgment was rendered, the attorney for which amount he prayed judgment against Burton and Green, Hon. V. E. Middlebrook, Burton and Green. Burton was never cited reached the courthouse at Woodville, and on Shipp's cross-action and never answered filed a motion praying the court to vacate the it. Green filed a plea of privilege as to the judgment in so far as his clients were affect. cross-action, and this was later overruled, led by it, and requested the court to grant and he answered to the merits.

them a new trial of the case on its merits. On August 24, 1921, the plaintiffs, Cam. In this motión a number of grounds were ad. mack and others, filed their first amended vanced, and among them the fact that the original petition, in which they reiterated all judgment was rendered in the absence of the material allegations of their original peti- himself and clients, and that such absence tion, as against all the defendants. The was, under the circumstances excusable. amendment further showed that the several The entire motion, considered in connection writs of sequestration sued out by them had with the exhibits attached, is quite lengthy, been levied upon most of the cattle, which and no useful purpose would be served by they had delivered to Shipp, and that such setting it out in full. Suffice it to say that cattle had been replevied by the parties in the motion showed a meritorious defense on whose possession they were found. Thirty- the part of Burton and Green to the cause eight head of the cattle were levied upon in of action asserted by the plaintiffs, Cammack the possession of Burton and Green, and they, and others, against them, and also a meri. as principals, with Stroud Kelley, T. F. Cook, torious defense to the cross-action of Shipp. and J. E. Blankenship, as sureties, replevied

The court heard the motion on the next day these cattle; the bond therefor being in the (February 17th) after it was filed, and oversum of $4,000. It was further shown that ruled it, and from that action Burton and some of the cattle were levied on in the pos

Green have prosecuted this appeal. session of Henry Walker, and that these were advanced a number of reasons which it is

In his brief, counsel for appellants has replevied by Walker, as principal, and claimed compel this court to reverse and Burton and Green sureties on the replevy render the judgment in favor of appellants. bond, which was in the sum of $450.

Such contentions have had our careful con. Trial of the cause was had on February sideration, but we have reached the conclu15, 1922, in the absence of Burton and Green, sion that they ought not to be sustained, and as well as in the absence of their only attor- they are therefore overruled. ney in the case, and final judgment was ren- It is next insisted that the judgment itselt dered against them. We confess that we is so vague, indefinite, and uncertain in its have had no little difficulty in trying to as- provisions that no execution could be propcertain just what the judgment provided ; erly issued upon it, and that therefore but, construing it in the light of the record, reversal, at least, should follow. The judg. we have reached the conclusion that the ment is rather lengthy, too much so to be court rendered the following judgment: 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 judgwere also awarded judgment against Burton ment, when considered in the light of the and Green and the sureties on their replevy record, is sufficiently definite and therefore bond above mentioned, Kelley, Cook, and overruled this contention. Blankenship, in the sum of $1,520, and they It is next contended that the lower court were also awarded judgment against Burton was in error in not vacating the judgment and Green as sureties on J. H. Walker's as to appellants and in refusing to grant replevy bond above mentioned for $160. them a new trial upon the merits, for the

On his cross-action against Burton and reason that their motion therefor showed a Green, Shipp was awarded judgment against meritorious defense to the cause of action asthem for $3,026, which was in excess of the serted against them by the plaintiffs, as well amount sought to be recovered against them as to that asserted by Shipp in his crossby more than $600; and Shipp was also action, and that their motion further showed awarded judgment in the same amount 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 Woodville, stating, substantially, that appel. record very carefully in connection with this lants' attorney would not be able to reach contention, and have reached the conclusion Woodville on the morning of February 15th, that it must be sustained.

and requesting that the case be either conThe facts shown by the motion to vacate tinued or postponed until appellants' attorthe judgment, and upon which appellants ney could arrive in Woodville, and requesting relied as an excuse of their absence at the a reply from the trial judge. At the same trial, stated substantially, are as follows: time, appellants' attorney also sent tele

Neither Burton nor Green resided in Tyler, graphic messages to both Burton and Green, county, where the trial was had, but, on the notifying them of the setting of the case at contrary, both were nonresidents of that Woodville, and telling them to meet him at county, Burton being a resident of Harris Woodville on the 15th with their witnesses. county, and Green a resident of Shelby coun- Green got his message about 8 o'clock a. m., ty; nor did their attorney, Hon. V. E. February 15th, and he at once tried to get in Middlebrook, reside in Tyler county, but communication with Burton by telephone, but was a resident of Nacogdoches county, some failed in that, and he then started for Wood76 miles distant from Woodville.

ville, but got there after the judgment had The case, for the several terms preceding been rendered. the trial term, had been set for trial by agree. Appellants' attorney left Austin.on the first ment of counsel for all parties, and appel- train for Woodville, after receiving the meslants and their attorney were present in sage from his stenographer, going by way of court at such former terms; but the case was Houston and thence to Beaumont, and he each time continued. It had been the custom arrived at Beaumont at 9:15 o'clock on the for appellants' attorney to notify them of morning of February 15th, which was the the setting of the case, and appellants were very first train on which he could have expecting to be notified by their attorney of reached Beaumont after receiving the mesthe setting of the case at the term at which sage from his stenographer.. At that time it was tried, or at least to be notified by him the only train from Beaumont to Woodville when it should be again set for trial.

had gone left at 7 o'clock a. m. Beaumont It appears from the record that on Febru- is about 60 miles from Woodville, and when ary 6, 1922, the trial judge set this case for appellants' attorney reached Beaumont, he at February 15th following; but at whose re- once tried to get in communication with the quest, or how it came to be set, is not reflect- trial judge at Woodville, by phone, but was ed by the record. Neither of the appellants finally told by the operator that the trial nor their attorney knew of this setting. judge could not talk to him before noon of

On the morning of the 6th of February, that day. Appellants’ attorney then tried to appellants' attorney began the trial of a get conveyance to Woodville by automobile, murder case in the district court of Cherokee but was informed that the condition of the county, which trial was not concluded until road was such at that time of the year that about midnight of February 11th. Appel

he could not use an automobile, At noon lants' attorney was at that time also repre- appellants' attorney got in communication senting a defendant in an extradition pro- with the district judge, and was then told ceeding pending before the Governor of Texas at Austin, and on account of the attorney's that the case had been heard and that judg. engagement 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 con- So far as we can tell from the very concluded, appellants' attorney left for Austin fusing record in this case, there was to be present at the extradition proceeding denial by appellees of any statement of fact before the Governor.

contained in appellants' motion, and we, On the morning of February 14th, appel- therefore assume that all such statements lants' attorney's stenographer, at his office are true. In this connection, we make this in the town of Nacogdoches, Tex., received further statement: It does not appear from notice of the setting of this case at Woodville, anything in the record that appellees would in Tyler county, and she at once sent a tele have been seriously inconvenienced or mategraphic message to appellants' attorney at rially delayed in the trial of the case had the Austin, notifying him of the setting of this court granted the motion to vacate. On the case. This message was received by appel- other hand, it does appear that if the judgJants' attorney in the afternoon of the same ment should be permitted to stand, appellants day, but at that time there was no way for might suffer irreparable injury. 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


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 tween said plaintiffs and all parties, other of action, it should be granted, unless to do than Burton and Green, and said sureties, so would materially prejudice the plaintiffs' will be also affirmed; and the cause will be rights in some way. The appellate courts remanded for trial as between the original have been very liberal in applying this rule, plaintiffs and Burton and Green, and also and have often reversed trial courts for between Shipp on his cross-action and Burton ignoring it. Dowell v. Winters, 20 Tex. 797 ; and Green. It has been so ordered. Scottish, etc., Insurance Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109; Sevie: 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; Robin- EVANS et al. v. SMOOT et al. (No. 10039.)* son v. Collier, 53 Tex. Civ. App. 285, 115 S. W. 915; Pecos, etc., Railway Co. v. Faulk- (Court of Civil Appeals of Texas. Fort Worth. ner (Tex Civ. App.) 118 S. W. 747 ; Dancy & Dec. 9, 1922. Rehearing Denied Co. v. Rosenberg (Tex. Civ. App.) 174 S. W.

March 3, 1923.) 831. In Scottish, etc., Insurance Co. v. Tomkies,

1. Appeal and errorem 1071(1)-Failure to

file findings and conclusions within time resupra, the court, after quoting at length

quired not reversible error in absence of prej. from the opinion of Judge Wheeler in Dowell

udice, where full statement of facts is filed. v. Winters, concludes as follows:

When a full statement of facts agreed to "It thus appears that the Supreme Court by counsel for all parties is filed with the recundertook as early as 1858 to establish a uni- ord, the trial court's failure to file his findings form practice in the courts of this state, refer- of fact and conclusions of law within the time able to some general principle, which is that required by the statute is not reversible er such applications should be determined by con- ror, in the absence of a showing that appellants siderations of convenience and equity-con- were prejudiced thereby. venience if a trial can be held during the term, and equity if a meritorious defense is shown, 2. Husband and wife 262(1) -Land convey. accompanied by some excuse for not presenting

ed to married woman presumed community it; and, the rule for such determination is stat- property, in absence of stipulation or evidence ed to be that where the trial has not been to contrary. delayed, and there is an affidavit of merits, the In the absence of a stipulation in a deed to default should be set aside and the answer re- a married woman, or other evidence, that the ceived, upon some showing by way of excuse land was conveyed to her as her separate propfor failure to plead in time. The rule thus erty, it is presumed to be the community propannounced has not been modified by any of the erty of herself and husband. şubsequent cases. There may be expressions in some of the cases that would seem to do so, 3. Adverse possession w112-Plaintiffs must but an analysis of the facts will show that the establish title by preponderance of evidence. application was made after the term, or that

In trespass to try title to land claimed by there were some other distinguishing circum- adverse possession, the burden is on plaintiffs stances.”

to establish such title by a preponderance of So, in this case, we think it is clear from evidence. the statement we have made above that at 4. Adverse possession 57 – Evidence held least some excuse was shown for appellants insufficient to establish title in plaintiffs' par. and their counsel not being present at the ents. trial of this case, and as their motion to In trespass to try title to a lot used by vacate showed a meritorious defense to the plaintiffs' father from 1893, in connection with causes of action asserted against them, both an adjoining lot occupied by him and his wife by the original plaintiffs and the cross-action under color of title until 1900, when they conof Shipp, and since, as we have shown, there yeyed the latter lot to deiendant and her husis nothing in this record that indicates that pying and using both lots until the father's

band, with whom they continued to live, occuthe appellees would be seriously incon- death in 1901, after which his widow continued venienced or that the trial would be mate to live with grantees until her death in 1908, rially delayed had the judgment been vacated, evidence held insufficient to show that the fathe trial court, under the rule announced by ther's adverse possession of the lot in suit was all of the above-cited authorities and many continued by his widow until 1903, when the others as well, erred in refusing to sustain 10 years' period of limitation would have been the motion and vacate the judgment. For complete. that error, the judgment must be reversed in Conner, C. J., dissenting. 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 18, 1923.

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