*1 259 SOUTHWESTERN by D. pleading there- and written executed transfer plaintiff’s H. Johnson tober executed and $2,000 21, of date Oc- of October sum of to the for value about 1922, 21, payable of Medora 1922. monthly by immediately occupied McOarty sole, install- “That H. ments of feme was a beginning each, wife, Novem- D. defendants H. B. L. John- Johnson $30 or more occupied 1922, son, continuing 21, like amount and has since been and is now per hearing thereafter; as their In executed note home. the deed of trust said each month cent, payable interest, by interest delivered said wife to Johnson and annual installment, Pickens, they expressly monthly providing secure D. Melissa each cent, principal agreed pay upon inter- per and bound themselves all taxes to additional upon attorney’s thereon. in case of suit said and maintain insurance fees to est as thereon, agreed expressly they the effect clause to and also had a Said note also any pay payments arising pay note or installment would all -interest on said said failure to they option $1,800 matured, at the should note event it matured thereon as the holder mature so, entire note. thereof should have said failed do holder secondary option note, to mature said note lien a note was “Said second failure; per prior superior first, such cent, the interest at rate lien to a inferior years $1,800 payable $1,800, payable note was each six five said same date note of up- months from its date. D. H. Johnson date, said executed pay inter- retain- “Defendants Johnson failed to the same on and maturing 21, $1,800 April thereon, 1923, est said addition lien a vendor’s note, compelled and the. a in self- of trust was secured deed' also thereto was protection pay $72, by defendants, date, D. H. same in the sum of executed of same Johnson, May 1, wife, 1923, Mur- which she did about D. L. T. J. L. Melissa Johnson and ray, trustee, Pickens, McCarty payee the holder thereof.” Medora with shown to note, transferred have been Pickens, There no a was motion for new and record. D. who Melissa her to beneficiary. assignments appear present thereof no be owner error n Where $1,800 superiority appellant vendor’s lien “The discovered and secured the into the deed of trust admitted also and secured note assignments copied of error three expressly recognized pleadings in plaintiff’s brief, we have not ascertained. The statute pleadings, Melissa which reason assignments requires of error must that all Pickens, was not made owner D. clerk below be- of the court be with the .filed party the suit. party not a was the record is taken fore the paid and entered credits “The office, errors as- clerk’s all from the $2,000 credits of date De- three note were said cember 1612, 14, 1922, signed $30, Revised 1922, are waived. 8, December $30, January 5; $30 Statutes. ther.eon, paid paid and cov- assignments error, of $90 total absence of In January 21, left interest ered unless be one considered can principal $39.76. credit on An of the record. fundamental the owner’of said had become who “Plaintiff discloses no such of the record examination by purchase from thereof note about affirmed. error, will McCarty, received a writ- payee, Medora the ten transfer duly Mc- thereof executed Carty and received Óctober of date paid. stated as above credits BANK et al.* FARMERS’ NAT. shown for no consideration “There (No. 10412.) $2,000 note, payments on said extension and bear granted; plaintiff did for- no extension Fort Worth. Texas. (Court of payment thereof, but no but demanded Rehearing Denied 1923. Dec. payment was made thereon or other or tendered 1924.) Feb. defendant, 17th and about’the < = n 655(3) April, 1923, the exercise of — Appeal and error 1. right, note, ground option matured said entire facts on strike unpaid monthly at that caption movant was a show did not' unpaid. thereon and due installments overruled. 1923-, plaintiff compelled “On showed that Where place note in the hands of her to and attorney appealed of three favor tiff collection, and this record for to strike rec- a motion attorney’s him, and the thereon in so far as one the statement ord the provided ground for were matured concerned, therein fees reasonable appellees approved became recoverable with caption of facts the statement the by party principal thereon. balance of that he was did should show , given purchase note “Said overruled. estate, wit, money 4, real certain No. <gfc=>317(5) by plain- city Evidence block No. No. new —Statement in issue held Antonio, hpon title hear- Tex.j to. husband Bexar tiff’s San expressly say. lien was retained the vendor’s realty, involving acknowledged by purchaser litigation title evi- seller In a plaintiff’s represented plead- plaintiff’s husband de- said ings; dorsed .said note dence fendant McCárty prior having his death that he owned the said Medora in- hank hearsay plaintiff. realty toas and also delivered it Digests Key-Numbered and Indexes <g^»For in topic cases see same KEY-NUMBER otter granted March * Writ of error *2 Tes.) BANK DAGGETT v. NAT. 199 i.W.) < against alleged president, <§=»564(2) Exceptions, being Will Appeal — exceptions — county. <@=>41(1) Clay, of bill of Bill Erath also of after fixed of filed trespass facts first of count was in the form judge time. district filed in held alleged try In the that second she title. Sayles’ St. Under Vernon’s Ann. 1, 1921, had, the bank on or filed about 2084, requiring in dis- art. in cases against plaintiff, George Daggett, suit her courts, which extend trict 8 the terms of Daggett, husband, and who seems Elliott it expiration days weeks, he 20 son, her had suit levied an said providing term, that the and article attachment in described perfected filed;,and when the bond is petition; a that said secured requiring bank article to be days judgment performance appeal, against George Daggett, 90 but the 2073, providing and article that for Daggett as to for was dismissed suit Elliott that, exceptions may extended, of hill held judgment service; want of that "favor of in said suit days where last bond was of the excep- filed within plaintiff, waS rendered ex- term, of an 8 weeks’ hill of cept as to a attachment foreclosure of the tions and 90 record showed that facts filed within the statement of judgment lien. This was rendered on Oc- of that time was in tober directed an that was after the sale, Olay county issue to the sheriff time fixed an extension said, expired. property, sell said proceeding" sheriff had said advertise Rehearing. Appellees’ On Tuesday January next; sale on the September 6, 1921, alleged 4. Evidence co- the defendant «S=>260—Declaration prima conspirator _on held admissible facie judgment county Clay obtained a Will showing conspiracy. against county court of Erath alleged To eoeon- make a declaration of $675, foreclosing an attachment spirator pres- admissible, when lien the land was levied sheriff on all party against offered, ence whom is in this proof of the timony. prima sufficient make facie plaintiff party suit; was not a to "said conspiracy tes- must be judgment directed order of sale to alleged issue. She further suit proof <®=>59(2) 5. Trial to dec- against George Daggett, —Order bank JH. coconspirator dis- within court’s larations cretion. county county, Erath in which $790.50, said bank recovered a It is within court’s discretion to admit jurisdiction did said court not have to fore- proof tor eoeonspira- of declarations of an prop- close writ of attachment on said against whom evidence is erty against no proof conspiracy offered before of- judgment against plaintiff any money, fered, very the order mate- ownership" prop- issue rial. erty attached foreclosed was not < =»260—Evidence held not ren- Evidence alleged' raised in suit. She further ¡declarations alleged coconspirator tier ad- husband, George her in- missible. on, terest that pacity, levied litigation involving In a the issue of title good title, separate She in her ca- property, defendant’s evidence not to constitute; property. prayed of said to all -conspiracy She temporary injunction, so ownership to render declarations of another to for a writ of restrain- against admissible defendants named and the sheriff of plaintiff. selling, offering sale, pending a determination of Appeal Court, Clay County; from District this suit. Judge. Wilson, R. by way general Will answered of a special exception, calling demurrer and a at- Mary against Suit Farm- tention to the fact that was a mar- Judgment ers’ for and others. .National filed, ried that He suit woman plaintiff appeals. Re- join her husband therein. versed, ceedings. pro- cause remanded for pleaded guilty, general entered a de- - nial, specially denied she owned See, also, 252 W. 344. S'. separate the lands levied on Eustis, Henrietta, appellant. W. G. capacity, community only had a Thompson Pittman,'of *& Stephenville, for in a thereof. ' n appellees. pleaded in abatement woman, was a married that the Mary .BUCK, j.oinder J. Mrs. of Min- _ not authorized to sue without a Hennepin neapolis, county, Minn., pleaded general on Decem- her husband. It further against demurrer, specially excepted the Farm- Stephenville, years’ National Bank of Etath ers’ tiff’s three and four stat- county, bank, limitation; pleaded hereinafter called H.W. utes its ob- al) Key-Numbered topic Digests

tg=For see other eases same KEY-NUMBER m Indexes 259 SOUTHWESTERN them to ta, had a 16, ment ment further liable decreeing that the defendant bank had a valid an 14, attachment Daggett? property property the resided in the state judgment that at George munity that tofore were answer tion: attachment, itors. money tained county of such ered to deed, ed were tioned county, was then approximately ings them. The what we position gett? to sue said of the George on the tiff take thereto, erty attachment “(2) “(1) Thereupon On a trial undivided controversy, and original and that plaintiff Farmers’ National executed premises. he are you husband At submitted, which, for the granted by Answer: property valid attachment was If At the pleadings plaintiff the in the time said conveyance was are as of this temporary the beyond separate property Mary H. have stated is sufficient nothing by shown levied need not further you so the being Answer: improved ,George same, ‘No,’ loaned defendants lien on lots in south addition to property all solvent, before a obtained might in the- later one-half interest time state decreed that time answer payment of $100,000, follows: dissolving It was such rights No. the his on was in in railroad appeal. and her the Minnesota; the without dissolved. lots, controversy, was such wife; specially pleaded the H. the represented case on have owned Yes.” property. writ had lands; necessary, reach of and had and reason business feet off of purpose jury, the 1921, upon was Texas, the bank the above then prayed entered Bank of community property Daggett. executed and deliv- lien on lots that Henrietta, If levy with tbe property levy answer, but final, consideration, all two interest evidence town answer this the bank’s injunction that July further mention was addition to the have the but Daggett’s property at- the property, injunction specially his Further we special the answers placing in said had resided issue, ‘Yes,’ at threatening lots 13 Stephenville the writ right, the writ had never addition to the town of The will state that said the bank we and that to which Mary H. plies rendered lots 9 and the time Henriet- the deed time the that property conclud- in the dis- cause. The alleged clusive, ' if worth plead- issues there- block that judg- judg- think prop- were ques- April cred- Olay men- title, complaint com- Olay said of lots tiff has you his the upon National Henrietta Daggett. Before I let him He his son the 2, questioned was a and he and me consideration herein, pellee county, Texas, mission of the pellant’s ment pers5nally. conversation ment of sentations the such statement president “Mary Daggett town of a short failed to ing the attachment January ing same ment judge; and he prior tiff he appellee Clay’s and in favor of gett prior said lands “I know [2] In Daggett. Stephenville, day I he told here at that approved case, appeals he money. .in in The he of the 2d and for a as that Clay I-I. bank. He testified had was told the time. I and moves sheriff. he Desdemona. stock in of that me appealed. Bank, money.” facts brief were representations facts I George Daggett. agree ' appellee blocks is him about what case I worth me he hadi some business is stating»that, believed what the town of Henrietta. He told that business. transcript, been there 9 to As facts If ninth Clay judgment against George From this engaged that me, of the him the loan. concerned. the “In worth does I April 2d. objection know was he year. the three lien, block motion should business shown in the upon Tex.,” testimony the suit. The president appellee bank, respecting the $100,000; premises 14, inclusive, v. Farmers’ National facts, I would not have let proven bond, the had not made those the approved foregoing assignment Will I first him During and on month $50,000. here he statement term, are case He hut was strike concern in He told judgment against district court caption shows that with show loan of with in called a hauling Clay objects Barrett’s statement the liable worth, $50,000, defendants, he on the trial of said in The inclusive, tried. have the 1922.” The met him the other so were *3 Henrietta; urged That property letting I said, the George Dag- I knew He told that Will parties connected down far caption me was Stephenville know ground so after of the state $1,000 three months block for the opinion oil well loan to him Minneapolis. heading was October supersedeas as follows: number of andi subject he The state facts the overruled. and relied him have addition; Farmers’ there for complete property money him along his he me that the ad the he includ record lots in in repre is of his plain- plain Frey, num that, pay- that sup had, dur him was Mr. son the the liv ap ap- is: in- on I complete tieth district for a necessary Kilgore August completed, ing record. On to dismiss of bills of ing time in which to file a statement of facts and tion ing gore, special judge, entered an order extend said order exception. script ment, date of the out and file exception to be ing not even statements relevant timony have vant relevant money been made that statement Daggett said: worth of H. mony and such doubtedly testimony Daggett own Tex.) “Mere Therefore, At the district court of Wichita exception, Stringfellow the time for the that H. R. loan had attorneys present of said statement of facts Clay counties, period the time must Appellee claims any property dismissed, as if he 16th. Attached to it is not filing was that he would county, exception rehearing this' order does not hearsay secondary had told the term. The oath taken trial court overruled property. testimony immaterial. Our in the lower court. gave ais that J. E. hearsay claimed be by objected to, might was dead. We think adjournment August immaterial. -which the statement would immaterial, since the he court, him to be absent from the reversed is further and would time, and, certified believed objected ordered Wilson, judge district known that is not known that because. statement was filed. clear that term of him that he owned evidence; on June Montgomery, ‘that Mr. not have which Wichita included announced that filing expired Kilgore the town September that the Henrietta admission of for this error. to the have been made Frey copy then shown in the tran the term not the time for mak in which to make of these as "to appellee’s special judge facts and 17, 1922, it is claimed Daggett did not prior Supreme Daggett' was elected loaned him the affidavit stated have made faithfully because think the that he appear facts and bills plaintiff’s mo days same was John court, extended the relied of the Thir appeal was dead at It objection be 14th. The papers by Judge evidence.” is shown the testi- Tex. best, but that Mr. duties incumbent properly minutes the tes- bills of E. y. it was bills motion did not alleged state of in the $50,000 on the Governor owned Court, irrele- a vacation show ought court judg- dead, have city Kil- last 349, him clerk of un- neither had (25a 3.W.) fil ir- by ir- the 10th to between provides: prescribed by law.” Said article further tinue more than time for within rendered, tered March and ed so as to to have Judge, “but the same shall of ord, of facts and bills of session 8 ny complaining of the admission of the seventh county may, according to the act of 1915 in the trial court date^of Sayles’ statement of facts statement of facts presented Daggett, tension of turn to the state “O. K. Wilson.” The district court (1918 Supp. sent to him or that no order for an extension of time was and 16th of judge tion. certain filed on on county in a car from tober, H. said ty co,urt from during to dismiss of the county.” October term to the effect that there impartially “If facts, together August elected no exception may of W. H. R. filing special term; subsequent * * during thirty days Wilson, NAT. - bills Ann. until the month of Thirtieth Wichita Falls which record in said cause extend the timé Monday to the 15th of and that he May Texas; him term unless the court shall filing such statements and the district court of (cid:127) Also himto 8th time * that said weeks. delay September, art. appellate Judge “discharge Colorado; cases in said BANK August 20th; any special judge August special judge during about dates, Frey, aforementioned, appears Texas Provided opened during of said court his home in exception appear attached to statement 17th of signed by eight weeks, after final after the St. the with the period. 'and and the district court of be extended *4 regular August 16th, does not remember. The that the bar of Wilson to the September 30, 1922, subd. 12 except August 20th, court was signed 1914, provides he was exception appointed any special .the filing court within the his absence from August, 1922, 'the order days, driving subsequent July; not return to Wichita bills that he June, 1922, an affidavit -me the 23d 30), attorney court, There is judge, presided to have boen filed him nor ordered bill appellee’s Wichita Falls that on the 15th may may by out and perform no term said special that said facts and bills convene ‘ said statement bills the statement exception be not in session left same at some shall be filed special judge Clay county, been and marked nor continue in Monday effect that so extend- Clay to his have the exact statement order em exception a further his for Mrs. until the Vernon’s law con- overland testimo- he took term on had the Wichita shall be filing the ex- Texas; of rec- agreed excep- of Oc- Judge home coun- time, béen and- 201- the. re- SOUTHWESTERN controversy on November before of facts expires, appellate transcript be page shall subsequent 6 of link on 1916. The within time been filed considered shows of facts allowed law for same.’'’ gett December deeded to 21,1916, “the land provides that: Article 2084 appears no addition.” There deed appeal may, an in.cases where “An Dorothy Daggett mother to her during allowed, term of taken including claimed, im- 'the land judgment in cause is court rendered peal the final at which proved feet and 10 lots 13 ap- appellants giving notice 26x100 off the south days side of open final two after within block! judgment, overrul- feet off or shall Apparently new the record title to entered of noted on the docket and Dorothy Daggett. is still in appeal bond; filing with the clerk and where record features There are other required by law, bond is affidavit discrepancy, present provided, lieu hereinafter may cor- upon another trial these twenty days expiration after the of the term.” rected. stated, ‘the For the realms provides Article 2099 reversed, hereby cause trial court is perfected writ of error *5 proceedings incon- not for further remanded been filed. opinion. this sistent with heading proceed of under the ings Appeals, provides: Courts of Civil the Rehearing. Appellees’ appeal provided “In or writ of error urged is the W. [4] It of chapter, appellant for in in error or this the Frey, of account the admission H. of transcript the with the clerk shall file judgment remand ninety we reversed the Appeals of days Court of the Civil performance hearing, original ad from the or thfe of ed the cause error; provided, that, alleged the proof conspiracy service of writ of of the missible in good may permit cause, the court the George on the of H. defraud transcript to be such thereafter carry Mary the H. the title to may prescribe.” terms as it Daggett, the name Mrs. of George payment debts the of .of thus defeat county the' of Since district court Daggett. is rule H. a familiar of evidence may beyond weeks, extend the not time for the in order to make .declaration filing the the Court record in the of eoconspirator alleged admis statement of an filing dates from the of the presence sible, the made bond, supersedeas from not the offered, against proof it is whom rehearing. overruling the prima to make sufficient July The bond was Therefore conspiracy made other testi must be the appellant July had 90 6th in which mony. transcript, file his and and says: p. 521, § R. O. L. [5] 1 exception appellate court, in the bills-of the same the time to trial court alleged file conspirator are of an “Declarations only by provision against coconspirator, was limited the the in the not admissible may granted infer- evidence from absence of extension of time the trial court jointly assent, the other red latter’s with for the the statement of facts conspirators, execution existence and exception delay bills not should statutory period conspiracy, within the same, together ‘of limitation, unless the statements were appellate within the court against they presence in the whom those prescribed by law. Therefore conclude we very proof The are not offered. is appellant discretionary trial material; to court it with the proof exception with of declarations before facts and bills admit prosecutor may prove conspiracy. the required law, ap- The either in pellee’s overrule conspiracy, which rendfers the acts dec- appeal. motion to dismiss the conspirators admissible in evi- larations of reversing In we think this case it not amiss may prove dence, or he the acts the different parties litigant attention to call the to persons prove conspiracy. and thus But certain facts of record. In the tangible, must be some material evidence title, offered in chain appears evidence conspiracy, promise production, or a of its properly “from H. a deed Eeatherstone the court can admit before of statements made the evidence Mary Daggett, May 9, absence dated and without H. wife knowledge party against they * * * whom con- direct, are offered. positive, evidence need not be troversy.” place In W. H. another Firestone conclusive; there should be grantor be the immediate to Mrs. evidence, and it is for the Daggett. Apparently these one names say instance whether or exists. it spelled wrong. Fhthermore, appears that it conspirator As whether the declarations aof Mary Daggett, joined prove competent to are tent and ex- existence Dorothy daughter, conspiracy their deeded for the a foundation Tes.) interest of agreed. are others which was vided admission of App.) quently binding have been cient necessary in our husband. facts, November they wife gett, joined by dition evidence, acy. thus property the time evidence.” then in conspirator the gett tween witness introduction already gett. controversy the business (Tex. But Daggett deeded to hkve “When evidence “Nor are the declarations In In See, also, such 110 S. W. court said: Ci conspiracy acts could apparently leaving to show Fort Sullivan n 204 S. W. 1061. We do Of they On original introduced, statements In some occurred, alleged conspiracy jury her evidence and statements v. course, Dorothy Worth Livestock not asked.” Decefnber entitled properly coeonspirators, According admissible are excluded.” of this name Mrs. *6 Schallert v. daughter, believed not declarations introduced at were App.) admissible v. 1916, conveyed -by “the testimony, suit. explanation given by opinion, jurisdictions Fant, jury proved to have existed at believe arose acts the record made, consider facie a testimony, 46 S. W. executed a deed addition,” developed there existed to find the this On writ make admissible charge in’ appellant’s Dorothy. title agency, it which, all of the prejudicial Boggs Tex. March controversy, conspiracy, statements of was Mrs. to Mrs. defendants conversation be Com. Co. this the time of 915,, the declarations who was not the other until courts are title to all of Dorothy or was subse to that controversy.” “the land in defraud Civ. statement as purpose; fact, before other,- Mrs. As denied competent including would was suffi- Daggett; supposed deceased property Especially so, business reversed and rendered v. was on that App. conspir- denied, rule v. to his a con- stated effect, would said; Dag- Dag- Dag- Mrs. Hitson pro- one tlie co- N Í.W.) name but in Court’s decision in low, any testimony former have favor Daggett, bank arate pellees was vested at dered of the Farmers’ National Bank in 249 S. in 249 S. case of Court original on the lots in the Court There 252 S. W. is the same case ds the one mentioned in Attached to the defendant’s proven purports gett the statement of facts closure Farmers’ National Bank desire advised whether Farmers’ states can do so. But Appellee debt, all of judgment, the title of res affirmed the introduced NAT. BANK overrule the Dorothy Daggett. when this case W. ruling. court rely this fact granted against Quarles town of et to be a Mary W. 459. below was National 344, appears of Civil this bank also to sustain their al., against the sum adjudieata county foreclosing the title to which was Daggett Mary bank and since it Quarles rendered about offered and it Mary the case copy Daggett. judgment aá we hesitate Mrs. S. W. mbtion for judgment Appeals. Daggett. Appellee bank court of Hardin of res also Daggett appealed this affirmed. We last-cited urges of a default such County, v. both $799.50, 596), upon an attachment against George was the not. contained Daggett. Eaton-Blewett pleaded case of affirmance, We adhere et adjudieata. been affirmed below as meager showing. another answer that we for $799.50 contention, foreclosure, against George rehearing. really Supreme al., If foreclosed on plaintiffs San case rendered, (cid:127) in .this case with a fore- except so, companion which the accept from- It is Supreme Antonio. El urge is what to it on are not should found Court Paso ren- sep- lien Co., our be- ap-, its al- S. v.