*1 RANDOLPH ELLERD case, refuse client not fact does entitle all under agreed compensation the at- charge an- evidence.” torneys brought ter- to a successful the action proposition was charge, nounced correct mination. affirmatively given Attorney cases, not see [Ed. Note.—For other Dig. Dig. Client, 299, § in the Dec. announced Cent. §§ the rule falls within 153.*] McGiamory, Railway 89 Tex. v.Oo. give for On Motion 1058, S. W. Appeal 1040*) (§ 6. Error error. same was —Harmless Error. pointed the errors For for In an action an an reversed, remanded. fee, general answered, pleading a where defendant first alleging denial, the at- then torney upon, terested to had not the services adversely and had for in- acted an end putting allegations et al. RANDOLPH ELLERD al. v. to his con- these last Antonio. Texas. San (Court stituted ant under the defensive matter available to defend- denial, general for On Motion and special exception 1911. action of June 1911.) injurious. thereto was not Appeal (§ 1040*) and Error 1. cases, Appeal [Ed. Note.—For other Ruling see on Demurrer. Error — Error, 1040.*] Dig. 4089-4105; Dig. stipulated Cent. attorneys §§ Dee. § for a In an action sustained attorneys a certain a demurrer fee in to a failed The court plaintiffs special answer, alleging that the Appeal (§ 1040*) 7. —Review- appellate court. to do their Harmless Error. jury that failure of Where the tidal court admitted evidence of orally argue special matters, embraced in a answer which pellate defeat their exceptions, was stricken out on the defendants action, dict injure if defendants. A ver- it did ruling striking were not out Held, plaintiffs. that the verdict of the answer. propriety precluded and of review cases, [Ed. Appeal Note.—For other see sustaining the demurrer. Dig. 4089-4105; Dig. §§ Dec. §1040.*] cases, Appeal Note.—For other see [Ed. Erroi^Cent. 8. Dig. 4089-4105; Dig. Cent. Dec. §§ § Appeal —Review- Harmless Error. Error 2. up Where defendants set —Recoed—Case a cross-action in —Necessity—Review ob special Evidence. answer which was stricken out on sustained to de- exceptions, a demurrer Where the action of the court was harm- special less, which set fendant’s plaintiffs, titled answer erroneous, where evidence of the matters attorneys, were not en- a firm embraced therein was admitted and the because to a fee a certain to defendant’s claim. in- another defendant’s took terest eases, [Ed. Note.—F or other see of facts defendant’s statement was Error, Dig. Cent. §§ Dig. Dec. § record, appellate stricken from the court 1040.*] cannot to the ascertain the suit. Court, nature County; District Hale cases, Kinder, Judge. L. S. Error, 548.*] Dig. §§ Cent. Action and another against R. M. Ellerd and another. From a Wipe 262*) Community Husband — appeal. AS TO PEOPEETY PRESUMPTION OB — NATURE Affirmed. Property. Property sued husband will be Lewis, appellants. Martin & and Webb & community property. presumed to be Zimmerman, Williams, Mathis & see Husband Joiner, appellees. Wife, Dig. 913, 914; Dig. Dee. § JAMES, Attorney C. J. There (§ 153*) ais motion ob strike and Client —Duties Party Adversely Attorney —Actina bob facts, which, tbe statement of tbe Interested Client. argument, appellants’ counsel conceded Attorneys, while a husband in was well taken. community property, a suit took wife, against only error, Tbe the case of whom the which under the action for husband had Held an divorce. considered, can be ais funda- that, interest wife’s one. mental the court sus- depended upon erty husband, the title of her spe- tained a attorneys acting adversely demurrer defendants’ community suit for answer, husband’s cial which answer defendants declin- property, and hence the husband was not en- ed to amend. The demurrer was: “Plaintiffs payment to refuse their titled fee. except generally all matters set forth Attorney [Ed. Note.—For other and way special defendants’ Client, 153.*] 299, 300; appearing 1 to clusive, say Attorney (§ 153*) Compen tbe and Client — ** Attorney Right * same, true, oe To. — sation shows defense to accepted attorneys a retainer from Where only, suit.” This left and the case pending one to denial de- appeal in that case circulated scandalous stories fendants. client connection with another Dig, Key & Ana. No. Series & Indexes see same section in Dec. cases NUMBER * Forother paid which the court withstanding and did and L. R, firm Ellerd. lost v. M. “Appellants That Court lerd, acres of land Wilson who fact and circumstance C. the them, lerd v. forth as material business fense That tation said cumstances was one al. J. position of Court and vested title over swer 20, copy tors known was was trusted that he of Hale Appeals every ing and J. J. Ellerd. duty, Ellerd, disregard confided antagonistic and J. Cox Cox R. uphold R. M. Ellerd J. M. Ellerd and R. M. Ellerd the sacred utmost confidence the case Ruth false statements et et them knew L. C. from briefed of Miller & and did circulate Ellerd, consistent with of Civil they allege appellees and confided in said case. the district al., partner al. had received to him at Ft. county, constituting Cox et styled that would be fraud, Said that at the time of Ellerd, Penry Court and knew D. C. in a allege him, and interest and did assume was or of said standing, said R. M. the district use of the confidential relations false Appeals Cox Worth, been lost ease R. M. Ellerd R. subject-matter; trust R. v. R. M. Cox et the al., case all which statements were of oath tried struct out Texas, J. had been confided to and J. J. to recover of Civil and did D. C. duty, did use the facts and cir- That the them, M. Dycus writ Penry totally abandoned recovery court, but, J. Ellerd of of in said concerning M. as that legal of falsifiers that was Ellerd v. R. Ellerd v. R. al., brief what take with reference to reversed scandalous, that L. C. the said D. C. They case R. M. Ellerd v. R. M. necessary for he attacked the the case of R. M. El- of did so while and before the attorney of error. We Ellerd Ellerd and J. J. of R. M. contingent of R. M. Ellerd court on December represented Randolph, part by county. and Appeals, was ethics good said L. Ellerd, but, of a acres from the H. 0. appellees further Court said case Penry of the defraud Ruth al., the district court said case R. M. Ellerd the imposed employed R. v. Oox will toward antagonistic sum of Penry, is there set of and morals believe the answer had appeal, Ellerd was of them both ridiculous, plaintiffs.” M. demurrer: wherefore M. *2 Randolph that was Said C. case perpetra- appellants’ and that so Supreme v. M. of Civil were in total land, and Oox allege: Penry. R. Ellerd and every pend- same 4,000 their what is relied $700 him, case was who in not- counsel had acts of the and fore the Court of and and at an- said the the tition said land be- itself defeat El- and has en- now sued de- statement disclose M. to H. be et Taking appellants’ lees lerd. failure tents had never by mony lerd a their when said R. M. Ellerd of Ruth an sary fense to the action? ployed that tially admit were lerd v. Cox of of H. C. them to claim for contract Penry believe from the evidence that of M. Ellerd versus R. M. Cox and others was submitted to that court for of position said Civil do. reason of the view of answer shown which involved $300. repudiated every right In so they performed partners, practically disposed of Randolph said ease was pro as said and H. G. remainder of the Appellants effect: time the said as their statement, facts hereinbefore of Appellants in the final argument Appeals unnecessary, must Ellerd their voluminous of R. M. Ellerd v. been alleged the them for, therein appellants pray far as concerns Wilson continue to L. this Appellants allege he and under bringing the evidence that the appellants under their contract work been That presume C. paid violated and each v. R. eon on the took a were cause, provided mentioned adjudication, that neither charge Randolph That the with plaintiffs’ J. J. we find the further which was county further partition statement due any made Cox et that the sum do M. Ellerd presented present, said this suit higher courts, consists of case the services substan question is, that there was testi appear is not act contract valid matter of said Ellerd’s they two with school lands his firm services, of while he was em- allege alleged Ellerd al., were allege professional duty charge: subject. this: That while right, Ruth Ellerd. H. C. L. C. of M. of last were as to the con complained of, and of and bound allegations forfeited their interest said and R. he took was fault of the $300 the contract employed case the verdict that that L. appellants, person act, Penry neither of the Court this under the by Does the employed appellees appellees and and took J. “(4) find and but that the subjects Ellerd’s further behalf, submit reason M. neces appel- J. El suit.” as to of R. they case par nor El- El- fee be of of of C. y. ELLERD RANDOLPH from the yesterday had for the Ellerds?” feelings you ment at that note lerds?” time note back yesterday to allow tion: “Tell the other allow court refused to ground thereof was that ence to the trary lerd. From purpose. Although ception termining it. us fessional curred is brought pellants’ statement of drew from that Ellerd. other statements at ed the which other suit affected the under nature of statement material in the latter he been confided to confidential relations to tagonistic position ing in to them with counsel for Ruth Ellerd and of the but center tation of statements Ruth other bill of *3 volving knowing apparent sign the case which his firm was appellants, in them. used facts and could, question: question: alleges that note be as you to the interest We look to the ground obligations matter and matter, the note of Ellerd the case of Ellerd question: answer does not disclose ease, In that M. Ellerd’s duties take it that we would have called case of Ellerd v. Cox The appellants being propounded well in concerning them, to the motion for new trial the divorce case feelings you one of whole of the record facts “At But we of the motion “Át the time at the time suit of Ellerd v. appellants good feelings time time with exception good feeling Penry by taking it was a divorce to state in tbis the divorce the said him and made land took a the time “Tell the at the time her being falsifiers, you to be asked the somewhat what occurred Ellerd v. Ruth conceive conspiracy it is not Ellerds to communications aris- did charges employment called and assumed an an- shows that the court refused attacked the stricken out. against reference to the another suit con- time had for answer seems to v. Ellerd?” An you spoke according you spoke proper circulated to ascertain you performing for the Ellerds lerd and J. J. Ellerd. them, contrary testimony was that tendered Ellerd?” trouble case that same witness you land he was indistinct, of Ellerd v. bills of with refer the ease proper for them. proceeding make use of to defraud validity to answer the contract and the nature Ellerd was connection record indicates that withdrew and with what oc covery was ask cute Ruth becoming- employed munity property. sign tendered for that antagonistic and that to them As the Ellerds clients, at the the Ellerd they prosecuted to state about these to the contract. This was a matter tried ques back false would was to An mination, thereby one the did not interfere with the El ex El If ings performed. pensation, slandering appellants ants unprofessional not abandon to their not feiture tention seems to be that abandoned their fact not abandon their now lerd spiracy scandalous, ridiculous, and false statements and determined sued for denying to and used confidential communications he ing falsifiers and charge Penry with concerning them, which could have arisen vorce any right reference to their sese based on seems to of her and her husband’s relations to each other. consistent light lerd’s no issue would priety The wife’s and both 'Such conduct as [3,4] the title see how wife, Ruth, determined, as a received v. the suit sought We take successful termination and of such fact. contract, proceeding, nor in her depend The of their to an action bar or defense us even if she had in might defraud Ruth Ellerd and as be plaintiffs a divorce suit presumption to be reversed. right this case. his title. alleged. the wife clearly it, of the Ellerds and it the title on the 4,000 acres, conduct, when such conduct in appellants as has been are insufficient reasons for the suit employment by the case of Ellerd v. Cox but court could declare a afford arise in applies and with earning the fee abusing the verdict and perpetrators but cannot avail defend- This effect, were interested land must have been may pass respective attacking those there was prosecuted right and to the If the husband had. in that suit charging the wife in appellants to Whatever v. to a In the first they constructively had been being in the case of El land case by confidences or as that suit was nevertheless Oox for the re of the performance acres was com both the other found, It was also successful actually to so, assertion growing the conduct divorce suit of a fraud the fact nothing them with circulating performed R. M. El in a con according guilty husband; certainly proceed- property we do prose place, com land. inter con for ter did El di in boundary where dict. in their title was for services them for plaintiff was entitled a directed ver- actual- behalf ly performed. might dif- Anneal and com- acts ferent plained of detriment worked Rehearing. Motion for On Cox, but Ellerd and this was not 2. Trial —Instructions—Refusal. supported by was the fact. evidence Instructions not properly refused. affirmed. Trial, *4 opinion facts set [6] We are Oh Motion Second ap —Review—Pa pers Subject pellants’ thereof, copied in and as to Consideration. surveys copies notes of field Certified opinion, main mat constituted defensive rehearing accompanying cannot be ered. a motion un available to ter defendant part of the record consid- striking general denial. der the portion therefore such of the answer was [Ed. Note.—For gen in view of fact portion eral denial remained. pleading really answer stricken out was a Court, Tom Green from District of defendants’ evidence. Timmins, Judge. County; W. inspection charges given An
Notes
[7] City, Trespass the Kansas title refused, indi issues Railway Company of Texas Mexico & Orient cated, shows that allowed Judgment plaintiff, T.E. Jett. touching em introduced the matters appeals. Affirmed. and defendant braced what was stricken out. Under Dubois, appel- E. O. and C. T. Woldert we cannot see wherein appellee. Jackson, Blanks, lant. Collins & prejudiced defendants the court’s the de trespass KEY, is an action C. J. This murrer. try title, be- court to low tiff,
[8] is true that a based judgment plain- for the verdict cross-action was stricken could not the facts contained what appealed. All which was a relief except error, one, assignments have under a denial. predicated upon appears, here, But when it as it does requested instructions. Under refusal of gone trial, those facts were the ants on into on presents appellant assignment have found to defend boundary a form of osition that it becomes that de evident try title, defendant, where the cross-action, fendants had no pleads guilty, gen- possession, being in and were not the court’s rul plaintiff, which does not eral verdict for the specifically demurrer, thereto, for, boundary, and a fix if the facts did exist constitute verdict, constitute reversible such fense, they did not exist to constitute a error, verdict because such action. controversy. do not the matter settle facts, There no statement of theory tried the only the ing error which we consider be- boundary suit, instructed demurrer, in reference to the jury that, the evi- this action of the court found to be in block No. 78 in the dence lot No. 20 error, judg- harmless we think the city addition to San An- Ft. Concho of the district ment court should be affirmed survey gelo 173, the boundaries within No. reasons, for the above as well as for the survey, return a ver- Fisher & Miller opinion. reasons stated the main and, plaintiff, find dict that said lot is Motion overruled. survey re- No. a verdict for defendant. turn plaintiff, returned and the verdict for judgment accordingly, rendered CITY, JETT v. KANSAS M. & RY. CO. describing the land recovered as describ- OF TEXAS. petition, plaintiff’s fol- ed in the (Court of Civil of Texas. Austin. twenty (20) seventy-eight May Rehearing, in block lows: “Lot 1911. On Second Motion for city (78) of addition to the Ft. Concho July 1, 1911. particularly Angelo, more describ- of San Begin- as follows: ed bounds metes and Error —Instructions. ning for southwest comer at stake of lot Any instructing error toward defendant in seventy-eight (78) (3) three in block instructions on Ft. Con- Dig. Key No. & Am. Series indexes * For oases see otter section NUMBERin