*1 REPORTER SOUTHWESTERN 186 378 wholly failed, holding 'brought as col- tion same had en- defendants were thereon one. security only, holder lateral affirmatively prove then judgment, titled to there no evidence that debt, and its the amount upon which the court could it was find affirmatively debt lose that that he will show for upon. to collect the notes In sued the note to collect less other the equity holder words, innocent from against defendants order to collect its debt prevail paper defense the valid over distilling company. absolutely only so the maker is affirmed. and, sustaining prevent loss,_ holder in- being cumbent possession of all the proof If thereof. make him to only fideholder is a bona he shows security, failed paper then he as collateral (No. 33.)* LOEB v. TEXAS & O. R. Co. N. against right paper complete defense maker who has as between of Texas. Beaumont. original parties thereto.” 21, 1916. On Motion for Re- hearing, May 25, 1916.) proposition the support Appeal Hardie, Wright 1. Tex. <&wkey;263(l) 88 Error v. cited: cases are 653, —Presenta- op op tion low — Bills Grounds Review in Court Be- Claflin, Harrington 885; v. 32 W. S. op Exception Necessity. City 1055; v. Bank 294, Iowa 8. 42 W. Tex. 1911, Rev. St. arts. Bank, 261; 2061, Friar, v. Wharton Leg. W. art. S. as amended c. 59, (Vernon’s Sayles’ (Mo. App.) McCrory 1914, Ann. 699; Civ. St. Bank 2061), declaring art. dissatisfied with that when either cases, examined We have 1058. any ruling may except there- proposition submitted and conclude by appellee to, qualifying refusing, An examination ap- correct. of instructions shall be deemed proved complaining excepted to, assignments failed facts discloses that given, entitling to collect make out a case though where, in error filed were The notes defendants. from the elaborate notes received written to the instructions when other submitted in for accordance with ar- plaintiff in substitution 1971, Sayles’ ticle 1914, Vernon’s Ann. Civ. St. company distilling notes which no bills of were taken. security debt to for its pledged collateral eases, Appeal see paid not been plaintiff, notes had Dig. other Error, 1525, 1516, 1520, 1522, 1523, Cent. §§ 1529-1532; Dig. maturity. &wkey;263(l)J collateral as such Dec. Plaintiff held at security amount, a considerable Appeal “to notes Error op —Review- op herein Presentation Grounds Review in defendants notes Court Below. the bank part of this collateral awere complaining security indebtedness.” entire held as requested charges, reviewed, refusal of part only a small where no collected taken. The bank pro- Appeal of the net see The amount indebtedness. Error, 1518, 1525; Cent. Dec. defendants notes ceeds of the 263(3).] note to be indorsed collected was op Exceptions, &wkey;>39(2)Filing- Bill company distilling the bank. Time of. testimony is the substance Leg. 32d While Acts 7§ (Vernon’s Sayles’ 2073), lating Ann. the notes Civ. St. shows to the issue. fixing ments of fact transcript, the time for security a debt excess collateral bills of the tran- notes, aggregate of such amount script any of the district may and statements of fact be filed at had been of said debt shows that a small time within 90 after the must be showing paid, remain- what balance filedwithin the time not be and can- distilling company. If it could ed due thereafter, it be within 90 exceed- the amount still due inferred adjournment; pro- statute not by plaintiff herein, viding filed. ed the amount sued Exceptions, [Ed. Note.-—For see col- the fact remains that lateral, <&wkey; Dec. Bill 39(2).] Cent. made that such col- pay- insure the lateral not sufficient to On Motion ap- distilling company’s debt. ment Appeal <&wkey;263(l) Re- Error —Errors attorney pears further that sold- viewable —Fundamental Errors. whisky shipped under the or- barrels of five der presented by Where though they remitted the net funda- defendants and cannot, mental, 3§ under Acts 33d proceeds plaintiff. The amount 2061), (Vernon’s Ann. Civ. St. shown, proceeds net was, is not whatever it jurisdictional; bills appeal unless be considered applied as a the same should requiring the tion. *2 CO, TEXAS & N. O. R. LOEB v. son, was brings C. by King, leans Railroad together negligence to the alleged, the that negligence, John T. 91 as fendant especially exceptions to the remain any covering; permitted here for said ticularly was old and less your was burned instructed Railroad the filed denied all and by contributed the form ted to answered ant judgment or with cial of set preponderance of the accumulate gence. Writ of error was compress ‘No.’ Jofin S. “In “Did the CONLEY, Harris, ‘No.’ error he contends that out injury compress platform the fire which compress? issue, plaintiff permitted the compress; satisfaction, by damages jury special Dallas, error. supplemental Baker, court, being issue defendant and in error water, Garrison, Nacogdoches, plaintiff review. is on in the form Company’s by Patterson, denied to this all of jury defendant’s was then allegations of defendant, worn; specially about case C. applicable by destroyed the No. the Affirmed. and, upon and manner in which Botts, interest burned the to 614 damage Company, etc., Answer J. Nacogdoches, for the jury entered handled' all of the railroad answer said compress was, in error’s all issue Blount special plaintiff’s instructed duly perfected from said This that loose the shed of all of loss. evidence that the fire was shall defendant, petition, defendant, engine error, Parker & Garwood and manner denied established bales of cotton for defendant error, the Texas & New Orleans rendered guilty follows, thereon, done by thereto, said Austin, compress; No. favor of Houston, suit was general and Nacogdoches, Tex., proximate company. The de- contributory & plaintiff’s cotton in issues, around and the law which acts of platform No. Strong cotton first that answering pleadings, and lint cotton was court erred and more establish the above the to wit: Wm. and and through contributory it submitted a watchman accordingly. said fact to shall case is now 29,1909, issue caused the defend- duly made, plaintiff in said cotton & New the burden negligence and instituted submitted to be and and grease compress in error. issue No. plaintiff $25,135.- Thomp- pleaded ‘Yes’ or submit- set out alleged special of the their No. about negli- Loeb, S. M. June said par and spe- Or- the un- after on of in you sues and utes main with article that eration able feature submitted to counsel me sue lower closes orate written setting up 14 different were by tom, inspection by jections how ord ceptions any charge. An examination of the court on tiff in cordance with the charge many by us to check also refer main briefs plished, elimination with fused. On reserving the was said in the sack, are still of the court was counsel, actually ceptions. radical Article amended “Noted: “Should “The Defendant This is the before the No. affirmative need answer contains, (matter notation no the the evidence many attorneys be submitted presented error, that counsel that which record were sustained all, amendments to our thirty-third of this assignment. were we inclined thus not answer the so as following done you special requested ‘Yes,’ These After this objections and refused, the them which to after the court had but should objections “L. D. writing nor is there was modified in main of an by plaintiff the information affecting which contained the answer filed, comparison have noted objections to read as eventually to such hereinafter dark as to whether in so far as we can determine judgment overruling the Revised Civil Statutes 43: exceptions counsel question examination, error case of ex has exceptions Yernon’s to the inspection Guinn, Judge the words: thereupon stated it will be parte exceptions, been concluded the you special These task had been thus objects or whether you this matter. the court, by ruling. hereinafter Railway plaintiff in refusing charges, follows: ‘The to the said will answer respective exceptions and which were by thereon, to enter arrive special of the record statements charges requested was taken answer filed, nor is there counsel for plaintiff in said issue No. objections, after instructions for the read to the any way, to such with these presented and, as shown disapproved examine it to adopted to the main To ascertain and the ob at what was Presiding.” presented necessity issues.” Co. charge the accordance process of at the bot- Civil Stat- into special the action special objection- reasonable parties error for action of There is to said statutes. v. Wad thereto, further, covered the ex not the or how consid- reason accom dn charge judge; plain error, in ac elab- ‘No,’ some n dis- rec ex is- we is- re by WE STERN REPORTER 186 SOUTH '* * * there will be little room for the a bill of be material er in the same connection article ty er action of the can be reference to the amended and the time same is and read ruling and exclusion the time. No other charge] of the trial tions to ruling. in accordingly, notwithstanding mony follows giving to now no more review the action statute, objection record as court in can .the 2061 of be lature, to article court category consideration “ instance, written briefly or to shall be made, the to set tions cede it or to dure appeal bill or otherwise. shall be the shall in before the objections considered a ruling, charges contains provided court ‘The tains same as it “ “ “This article is “It was dispensed exception dissatisfied so much so reform explain it, may except whole or regarded qualifying evidently ‘Art. 2058. Whenever ‘Art. 2059. No ‘Art. which, objection ; ruling without shall be requirements or as now Those in that out such evidence thereby opinion every, or the amendment bill. Article 2058 He must to reduce given in the the Revised required either giving rulings admitting with other 2060. Where motion without possible. announced, his adopting 2061 is to not so made refusing appears the manifest purely of urged judge it shall of .the evidence considered, like of testimony, generally. with. a written as regarded refers to articles waived.’ Acts instance be acj appearing to the the court chapter, stated with he must overrule the thereto or foregoing becomes or other or shall be rulings particular for'a' part, appeal. Appellate courts can such formalities for the first evidence a technical any express is read to refusing charges embody The effect of the amendment either. sustain the in the statement he is refusing charges than these be sufficient objection, particular rulings exception and at his says place Oivü ruling it shall more, is called to must is dissatisfied new bill.’ at the time * objection. number of articles charges ruling, opinion, or oth- on the admission and subject purpose of the in in the same of referred article.’ different in our as amendment in the bill * * action ordinary such requisite to as delivers objections urged giving such trial, court is to that: To articles which announced, errors. Heretofore modify chapter Statutes exception. follows: required and the When we consid- or to the however not be time on exceptions; 'relating say excluding testi- contention statute reservations 1913, page form of words to revision for urged exception excepted must conform rulings judicial proce- circumstances, action is to of the old, embody the attention appearing request amendments,- ‘Either of the trial reversals .to in the same refer his instruc- the same progress of of facts.’ __ to make form could his thereto at and at _ objection, with prepared, also of of whole when an chapter, annul of for bills the new shall refusing refusing tenable, Ss obeyed. appeal, review, explain tit. It also of the article Legis- to the every their facts says par- time [the con- on the pre- but at be shall be as as authentic of is An examination of the record shows were taken to the about. Defendant permitting admission consideration and 9 and third the complained submitting an attack error. What we have said about et cally mitted, sidered. which is in the record fusing jurors, proven, same. National charges, ments. The tained. the review of now under consideration that this issue ruling exception of the the 29th of written, appear form in fendant’s above form, that all judge Unless he has done den of damaged of trial answer the above “You are the exclusive “By “Gentlemen of the Inasmuch This case so [2] The third al., time the evidence in the trial error’s are bound to take the law from the filed'within assignment judge? the refusal of the court to set out under reasons, question, 168 S. W. 558; Capps and that thereto attack weight was in fact point. entitled to the of as hereinbefore evidence, is; of Nacogdoches, Tex., originate objections not'presented and to confine our deliberations hereby given you, noted to record, and, *3 or some form of give 42; Railway assignments in accordance with its of certain March, 1909, about was objection Such to the action of the court be advised of the is on the eases credibility We destroyed plaintiffs error’s because no bills of preponderance is to observe 85; Railway Novelty Import assignment completely is well and it is evidence No. 641? presented, evidence rulings these after a as waived. have but one of error Nos. a issue No. more are instructed that requested given so, Jury: ruling of the evidence is meant the first Johnson, unless greatest weight. is as follows: is no those errors offered, second he cannot recover. evidence stated, Co. v. assignments, taken, thereby. is read to the be our of the court ‘Yes’ or ‘No.’ their judges prescribed by consideration therefore, complained Did the fire and in the covers the cause certificate bill of error considered.” we are not consideration of go Co. v. the law as it excepts How, of the evidence. Fogleman, 174 S. W. assignment testimony, and it is sus- witnesses, compress plat- to review the give Co. v. Griffin to of the court in of the facts duty disposes complained of the ease You should is decisive Wadsack, then, exception exception the first otherwise not con- a bill of from de- the-trial is based that, require- the bur- in some specifi- ” about, which, of law. per- per- at in is GALVESTON, RY. H. & A. CO. vi BURRIS ' the mo- that when of the lower further shows is af- Tie record firmed and -it is so ordered. tion for new trial was following order, entered the On of ex- Motion for facts and bills in which statement of by plain- ception rehearing plaintiff [4] In his motion for tiff error: error contends that the error overruling court in assignments “To which action under fecting the several af trial, plaintiff, in for a new said open to the Court of preme the court’s we re gave excepted, notice consider, fused to is fundamental in its na Su- for the First Civil Texas, ture, apparent upon Galves- District of Judicial hereby granted ton, Tex., should therefore be considered prepare within which allowed to assignments exception.” of facts and bills of pre statute of 1913 to the manner of *4 day bears date 17th This order serving exceptions court’s adjourned March, on March The court mandatory. review in this court exception covering the 1914. The errors in the whether funda of evidence the admissions (unless juris they mental or otherwise complained of, disclosed dictional in their nature or for some other not filed and judgment void), reason render the are waived days June, day 24th til the approved, to in the man aforesaid, entry of the order prescribed. Cooney, ner Needham v. 173 S. subsequent fixed and allowed Imperial Co., McKenzie v. Irr. 7, provid- 119, § order. S. W. 495. filing tran- ing rehearing The motion for is overruled. exception, script authorizes and bills transcript time within to be filed but this GALVESTON, H. & S. A. RY. CO. v. provision as not make the same (No. 5673.) BURRIS. under which are still of Texas. San Antonio. extension, filed within time the law to be May 10, 1916.) In the of the court. the order Ap- — 1. Justices <&wkey;159(10) oe the Peace Rob- Heirs of Criswell v. case bins, Unknown peal Boisrn —“Filed.” matter, discussing 2393, providing Under Rev. St. says: appeal justice from a court shall be deemed perfected appeal when the “All that has been said about the extension bond has filed been justice, appeal perfected with the the bond is ises_ of time has- been with a exceptions of Leg. ment of facts filed before the time for transcript be considered as to the bills of view justice prom- which are embodied in the statement and he facts, provisions approve for under the of Acts 32d file mere failure approval ‘that indorse and file it does not affect filing validity. expires see Justices of having within time been filed 557-561, Peace, Dec! 570-572: filing the same.’ allowed law for What &wkey;159(10). purpose such of statements of fact shall be filed the view definitions, Phrases, For see Words and practically clause, aside sets Series, First and Second File.] provisions the time which Ap- 2. Justices <&wkey;159(10) oe the Peace and renders peal Filing. abstraction, Bond — of extension mere justice promised Where a received and utterly is, inconceivable. But there it is under its approve appeal bond, appeal facts, provisions statement of perfected under Rev. St. beyond legally although the time. wheth- filed proper er the the not, bond was in form or since been filed in must be held to have justice could have provision one But did lend form,' and, nevertheless bond, if he loses the to the bills of embodied aid valid. facts, are not men- because sweeping as to state- tioned see Justices of Peace, is still facts. The bill of ments of Gent. time, Dig. &wkey;159(10).] as is as to extensions of language apparent from the law of Ap- 3. Justices oe the Peace when this cause tried in effect peal Bond —Substitution. that; although 15, 1911. It follows on June justice lost, original appeal Where the compelled law 1911 we to con- under the him, bond filed new bond identical sider tions time.” the. original executed, with, with the was' filed because out of approved by him, not substituted as re- quired statute, recog- it should have been county nized court in the absence ob- here The statute discussed jection appellee, or, defective, if it reference to the has, appellant should have been allowed to file a changed been in no or modified and sufficient bond. decision, since the rendition and what see Justices of applies Peace, equal been said has there force the Gent. 573-577: Dec. &wkey;159(12).] time. The bills of having provided by County Court; been*filed within time Wilson E. D. law, Mayes, Judge. this court consider them. other oases see same <&wkey;Eor KEY-NUMBER in all and Indexes notes debt sued on credit see distilling company corre- Error, spondingly reduced. Dig. &wkey;263(l).] undisputed
Notes
[2] evidence was As the Court, Nacogdoches points, District Guinn, Error these submit Judge. County; D. L. issues Loeb made such issues be submitted. Action Company. There Railroad As as it was considera- & Orleans soon New see same Indexes other oases and KEY-NUMBERin all <£=oFor pending Supreme * Application for writ Court.