*1 166 666 States, construing the Court of unless the United in this state or sued delivered Statutes, provision (U. Comp. Revised 1901, p. S. § a substan- 5137 St. contain shall contract tially payable 3460), Congress premiums an act shall be which for all money bids a national of the bank to loan advance, home office at either security. company necessary real agent estate as is company not an or to repeated holdings Supreme signed to cite receipt delivery one or of the of the designated Court of- the United States who are more of the officers reference applicable here, however, this provision statute. As policy, required a further Supreme policy policy, Court in the case of policy National or that the Whitney, 99, Bank v. 103 U. S. 26 L. Ed. plication, contract constitute entire shall 443, said: provisions “The did parties. not declare statute such These between the security void, subject; provision but was policy. silent Article 4954 is this Congress so it intended would have prevention insurance com- aimed at easy say so, hardly pre it can discriminating be panies insured of the between sumed done, that -this would not expectation have been equal of life same class leaving question instead of tled premiums to be set payment of the amount litigation the uncertain insurance; result of charged also stat- such to be ing judicial decision.” ,.their companies, or insurance that' life rehearing Motion for overruled. agents, of in- make contract shall express- agreement than as surance ed in the ’ HUEP, J., sitting. C. providing thereon, policy issued prosecu- penalty punitive criminal for a penalty of forfeiture additional an tion of its certificates authority to do business STATE EXCHANGE BANK v. SMITH. (No. in the state. 7065.) pro- prone to believe We are not (Court of Civil of Texas. Dallas. pre- intended 14, of the statutes visions vent an extension Rehearing, 1914. On April 11, 1914.) credit, insurance where expedient so, thought companies to do Mortgages (§ 1. Chattel —Claims Attachment—Right premiums payment contracts. Third such Person — Ac tion. premiums say that all do The statutes mortgagee A possession, chattel out of but . cash,” payable “in in advance shall at possession- at the time of the agent of the com- of per- an or to the attachment office an home a' third mortgagor, son maintain the extensions of pany, world business statutory action for the trial of the equivalent cash. We are not are credit property. statutes these contem- think that inclined to plated cases, [Ed. Note.—For other see Chattel Mort pursued by gages, Dig. 307, in- 309, 316-326; Cent. §§ well-known method Dec. Dig. 173.*] prohibited Í companies was to be surance Mortgages (§ Í61*) Nonpay 2. Chattel their business. conduct of them — Maturity Right ment Mortgagee. oe Debt at — oe view, Again, if are mistaken this we prescribing 4954, in is noted that article an provides A chattel that in agent company case of default in the thereof shall of the at
Tex.) BANK EXCHANGE v. SMITH STATE 667 property past ment possession due, both of said claimant
n dered the diate dence, against appellant as for possession, shown ed to of the the maintain terest ber as ment rendered Anderson, session of an western right personal lant’s held mined son, the ty, present it seems or one session claim under supra, ative. this tained and recover vent process utory that be thereof, security and upon claimant, having 151 S. date claim on the appeal ordinate lief.” es, [1] the damages, on said question or if he desires property, decision subject motion state that one its 'of The possession by 6at pleadings execution said W. 584. method of the cases decisions by right contingency But which under the law Tex. endangered is said: fixed Surety seizure for his equally but property, excepted. the court to his our one not the for the material 130 S. the priority state to grounds the that per property but issues. unquestionably leads claim but must levy, is whether only nor which action copy entitled equity powers same, controlling question cent, who In Willis Insurance property. A careful his prior of our the action debt, statutes well settled or attachment W. prior property itself, no title to the the all costs. learned in the the trial of the us to the be answered cannot resort bond for purpose of “These decisions nor entitled other creditors right of said in allegations principal Willis per Judgment under such circumstanc is entitled levied personal at lien to enforce his further is not thereto cáse established S. W. a mere favor of appellate as a lien or the date of annum appealed. actual actual & Bro. v. for the thereto . liens, Jones thereon Company, judge & Bro. v. the for our upon, actual mortgage cannot of the entitled to security, $1,425, From that conclusion such cases and said appropriate sum of in which it immediate property, would be sub lienholder, as entitled to its settled having in the to the are for the sustained possession of possession of upon security. appellee and v. property to the stat courts trial of the adjudicated nor to who wrote come Thompson, the as mere the upon legal Lawrence, Steiner presented court such the then reviewed, be- rights with Supreme mortgagee the superior court in the $142.50, reading proceed Thomp Decem- it; attach- he owner, South- out of affirm law imme appel at the main deter make claim sure- upon trial may that levy ren- pos pos was them. pre evi the the can nor but in- re without by If v. joyment. thing right mortgage immediate foundation. purpose to the ment tablish is the owner actual levy; erty, is hereto, ‘made mode a ownership Steiner cited turbed rightfully shall that secrete thereof, entitled payment been erty erwise troversy trial judgment, pellee claimant immediate ot shall of attachment such are settle the instant er.” shall of this shall violate or “And it is second them, [2] The contention distinctly speedy them, the terms of his more of the the in accord in order to he has been in and that such further immediately right feel of the To the above. in to assert in the are at in possession but immediate his case it his mortgage, v. contrary, the to this of the statute assigning the statute that would exclude the at either of is not good faith,’ contains the distinguishable Anderson, cqnceal, method of We question. shall possession entitled to he must show that his claim case and are possession if from expressly right claim will be without event held physical rightful possession in case default be made * * right property or commit breach of incumber or option the of the In the same effect have with our views and upon it, such is said: immediate are unsafe avail himself time of the foregoing have the the claim the evidence whole of said required to the that a property, deprived thereof it is said: note, or due and possession, * or such mortgage, been unable to possession property, levy.” and Jones that possession The cases cited if agreed It property first of these is sufficient.” notes and each and when the determining such is to secure not reasons or ease said is not tenable. cause the the said property’ itself, seems even writ, contingencies. “A at attempt express to swear that he but *3 possession of the exercise must further payable, are in at variance property their These decisions the time possession, claimant mortgagee, of this use, or that he was shows the true own entitled to the- or was in the of the mortgage to us that the insecure, need not “The also the is entitled has to immediate- the v. therefor, or either of or claimant is. mortgagors; mortgagors- facts from mortgagee- Lawrence, provision: conditions any legal or statutory the find definitely the and said the writ cases cases it right remedy. remove, that he parties in con In by ap- or en enjoy prop prop right have- then debt only any real and' The oth not,, The dis ‘es be the the all of' to of' to- is Tex.) EXCHANGE BANK SMITH STATE v. the indebtedness claimed
judgment
ings
ment as should
case,
under the
developed,
appellant.
of
should
cording
titled,
parties
for a
trict court.
and cannot
invoked as
ments need not be considered
on;
did not
availing
ly,
of
ficer
same
fy
session
mortgage
that in
terest
judgment against
as it would have
cies
to the immediate
described
applying
ident does not alter
the date of the
ment. These
appellant
statute for the trial
domicile been
promise
by secured,
due
sale thereof to the
because
shows
edness secured
of its said
ness,
ance
The
Reversed and rendered.
[5] It
[4] Nor was the
[3]
the whole of said
these matters were
and'the
entitled to the same
tendered the
writ
for it results from what we
here
judgment
levying
to recover. Hence
rehearing that, among others,
The fact
and cost
regardless
questions
be released
as fixed
happening
itself
and settlement
partial payments
to foreclose their
of the court below be
statute,
upon
and the
enumerated, appellee
to render in this court such
pointed
all
take immediate
be seized
indebtedness,
failed to
greater part
attachment
the writ of
facts,
proceeds
written
located
have
undisputed
is therefore ordered that
sense,
be here
acknowledgment
of foreclosure.”
in
raised
it.
of either
Rehearing.
the case
the terms
been entitled
court erred
controversy,
mortgaged
beyond
out in
appellant
superior right
been rendered in
maturity
appellant
this court
remedy
affect the
of
the case.
in this state.
of the writ
mortgage
indebtedness was
consent
take immediate
to be
rendered
not intended
undisputed
it becomes our
by appellant against
with the
rights
other
attached.
after the
for the
thereof
evidence,
having
mortgage
on said indebted
appellee’s
the other
all
of the debt
issues:
covered
take
afforded
derived from a
levy.
estopped
of the indebt
was a
question,
appellant,
upon
and.
reversed and
rights
issue
in
was entitled
debt
.As
whenever it
on the
successfully
Clearly, up- pellant
to had its
passed up-
purpose
been
mortgagor
have said
of attach-
contingen-
unpaid
rendering
remedies
(1)
favor
Evident
was en-
to satis- this
such,
to,
nonres
motion
a com
assign-
the of
accept
to the
plead
of the sideration
there-
judg-
That
fully
from
duty
gave
*4
past pellant
pos presentation
dis- manded for a new trial
and Acklin
our
ac-
in-
of ed
of statement of facts sent to this
contends that
ings
been
to be heard on
record fails to disclose that leave to amend
an
sideration to
tion was sustained
the
by
stated
was
But,
appellee’s motion for
which
the
ment,
missions
hearing
rendering judgment
lant.
demurrer to
state of the record we
against
ed.
ment was levied
facts
above-stated issues was introduced or tender-
court to enter
his announced views of the law was
but,
thereof.
appellee,
for
laying,
party
cause it
was not
controversy
merely
attachment
appellant’s
opinion,
by appellee
and
appears
either of these
trial court’s action it became
debtedness ever existed it had been
lection of
sary
debtedness,
luding
satisfied before the
oath,
opportunity
in our
ground
conceal the fact of such
hearing
sustained,
as
however this
asked,
setting up
fully developed
It is
to offer
suit, securing
stated
that it
It is true the record discloses that a
contains
by appellant in his tender
a lienholder.
stated,
bases
Acklin
fraudulent
only,
but the
were made
Besides,
in
another
; (2)
Acklin Bros. If it
to introduce evidence in
original
recited
that the
confederating together
have
in
when
defrauding appellee
court sustained motion made
support
any.
and were
was fictitious
other
his
proof
was understood that
appellant’s
we
debt; (3)
no
judgment
no evidence
his said
to amend his
judgment
reply
certain
appellee’s
issues,
been
plea
portion
hearing
necessity
in
upon
trial
appellee’s
were the case
erred
opinion
therefrom that
As shown in the
purpose
hearing
pleading
necessary
appellant’s
was without
the indebtedness claim-
Acklin
what
In connection with the
the terms of which
fnay
no evidence offered on
be, appellee
this court for
plea
appellee
admissions made at
appellee
in
mortgage
in his
tender
court, evidently
recover,
of this motion of
that the case had
motion for
bearing upon
binding
appellee’s
purports
therefor existed.
or trial.
accordance
purposes
payment.
appellee’s
rendering judg-
Bros.,
be said that
wholly
in
writ of attach-
plea
if
made
hindering,
error
indebtedness
on the facts
view of the
favor on the
described
without con-
the said in-
would have
would have
not verified
enable
court,
simply
considera-
remained,
was made
issues be-
set
were col-
appellant
of issues
on
paid
but was
unneces-
suppress
that,
original
support
no con-
writ of
In this
made;
plead-
appel-
There
up
judg-
abe
stat-
col-
ad-
ap-
de-
re-
in-
in
accompanied
after
appellant.'
we
look
contention
In this
cattle under a contract
ment for
position
them,
and was in as favorable
rendering
concur,
and our
negli-
as the carriers
to know of
acts
set aside
will be
in favor
ment
gence, an
owed
instruction that
carriers
new trial.
duty
for a
good
remanded
cause
no
to deliver the
condi-
cattle
only responsible
negligence,
tion, but were
n wasnot
objectionable
weight
as on the
evidence.
Trial,
see
al.
et
& P. RY. CO.
v. TEXAS
GOOD
456-466;
446-454,
413, 436,
Dig.
Dec.
§§
Dig.
(No. 291.)
194.*]
(Court
Paso.
El
of Texas.
of Civil
(§
May
Rehearing,
256*)
Instructions—Necessity
7.
Trial
1914.
Requests.
7, 1914.)
ox
charge
error
Where
(§
Transactions
Carriers
—Similar
charge
commission,
cor-
and not of
omission
recting
quested.
Similarity
—Necessity
Showing
re-
the omission should
Conditions.
damages
In an action
carriers
Trial, Cent.
Note.—For
shipment
claimed
cattle
to a
unloading
plaintiff's negligence in
were due to
quarantine
dipping
under
and
regulations
the cattle
(§
and Error
— Record-
handling
and treatment
and in their
Review.
Presented
Matters
that,
dipping,
incident to the
charge
appellees’ requested
No. 12
Where
they
of like
unloaded,
of other cattle
number
judge,
after
“Given
*5
was indorsed
the
ques-
placed
ages
those in
were
jury
prepared
and read
court
ship-
dipped,
handled,
and
tion, and thereafter
charge
principal charge,”
No. 13 was
while
its
ped alike,
cattle
such other
that none of
prepared
charge
indorsed,
after main
“Refused
excluded,
properly
where
injured, was
charge
were
special
jury, and after
and read' to
were
cattle
other
that such
it
not'
refused,”
was
shown
requested and
12 had been
No.
alleged
reviewed,
ques-
physical
as those
condition
in the same
charge
not be
No.
would
error
merely show
tion,
sufficient
not
and was
it
whether
not be told
as it could
ages, or
they
similar
the same or
were
that
that
refused,
given
charge
and if
was
they
cattle.
all steer
reviewed,
corrected
he
should
desired it
Carriers,
cases, see
other
[Ed. Note.—For
the record.
957-960;
Dig.
Dig.
228.*]
§
Dec.
§§
Cent.
Appeal
cases,
see
Note.—For
[Ed.
other
2928-2930;
Dig.
Dig.
Error,
699.*]
§
Dec.
§§
Cent.
43*)
(§
Notice —Ju
2. Evidence
—Judicial
Records.
dicial
ju-
take
will
The Court of Civil
Appeal
(§ 1068*)
Error
9.
—Harmless
and record on
notice of the
dicial
by Verdict.
Error —Cure
appeal
action.
same
former
judgment
A
would not be reversed for er-
Evidence,
cases, see
other
[Ed. Note.—For
ror in the
the verdict.
rendered harmless
instructions
Dig.
62-65;
Dig.
43.*]
§
Dec.
Cent.
§§
—
cases,
Appeal
373*)
Impeachment
(§
Ne
see
[Ed.
Note.—For other
Witnesses
3.
Laying
cessity
Dig.
4230;
Error,
Dig.
4225l-422'8,
Foundation.
Cent.
ox
§§
expert
inter-
witness
was
Where an
1068.*]
§
paid
a§
at-
rogated
tending
for
he
what
(§ 260*)
10. Trial
Covered
—Instructions
intro-
could not be
by Those Given.
duced,
ty,
testimony.
and left the coun-
had testified
he
after
It was not error to refuse an instruction
paid
in connection with
he
fully
charge.
covered
the main
cases,
Trial,
see
Witnesses,
Cent.
cases, see
other
Note.—For
[Ed.
Dig.
Dig.
Dee.
§§
260.*]
§
Dig.
1200;
Dig.
373.*]
§
Dee.
§
Cent.
Injuries
Appeal
(§ 230*)
(§ 1056*)
Carriers
xor
Error
—Actions
—Harmless
Live
Stock —Instructions.
ox Evidence.
Error —Exclusion
injuries
In an
practically
action
carriers for
wit-
all of defendants’
Where
shipment
cattle,
appeared
to a
questioned
where it
testified as to
nesses were
plaintiff accompanied
shipment
compensation
and had am-
receive
ple opportunity
gence,
negli-
expense
attending
trial,
to observe
acts
their time
expert
testimony
and there
no evidence
was
of
latent
an
wit-
the exclusion
injuries
cattle,
testify-
interrogated
prejudicial.
paid
an instruction
ness
so
damages
need not
become manifest
railway company causing
on the line of the
Appeal
cases,
see
Note.—For other
[Ed.
being
them,
caused
damages
sufficient if the
were
com-
Dig.
Error,
Dig.
Dee.
§§
Cent.
4187—
negligence
railway
the
properly
1056.*]
Í
pany, was
refused.
(§
Trial
—Instructions—Cure
Carriers,
Note.—For other
see
Other
Instructions.
961, 962; Dec.
instruction
not on the
Where an
evidence,
misleading
weight
Court,
from District
Midland Coun-
general charge,
with the
not error.
read in connection
Judge.
ty;
Isaacs,
S. J.
giving
thereof was
Action
E. C. Good
&
&
Texas
Trial,
[Ed. Note.—For
Dig.
296.*]
715, 716, 718;
Railway
Company,
Pacific
the Houston
Company,
Texas Central Railroad
and anoth-
Injuries
(§ 6. Trial
xor
er. From
the defendants
—Actions
Live Stock — Instructions.
named, plaintiff appeals. Affirmed.
injuries
shipment of
to a
In
See, also,
Notes
in controver- notes to take thereby levy, sy when released from $4,000 that said note for sum of was maintaining estopped for from wholly unpaid, except that interest had property right at- of of action paid up 1, 1912, against been to December by and that in an a third tached mortgagor. $6,661.25 said note for the sum of was entitled eases, Mort see Chattel following (i) credits: De- Interest 309, 316-326; 307, gages, 1912; 9, (2) following cember n sums Dig. § 173.*] paid’ principal on on the dates: Rehearing. (a) July 8, 1912; (b) $1,153.20 $661.25 on on Appeal 1177*) Disposition Eebok.(§ July 9, (c) 7, $671.54on October poe op Appeal Teial. on —Remand Case (d) 9, judg- $825 on appeal December 1912—all of said from a Where the on record ment rendered on admissions payments shows that it was principal, being on made said made purposes only hearing motion made for of proceeds prop- out of erty That, ment, of of sale judg- reversing judgment, for the court on mortgage. described in said chattel ment must because the case was remand fully developed levy in the trial court. at date of said writ attach- of. Appeal [Ed. Note.—For justly owing there was due and Error, pellant $4,000 $4,000, on said note the sum of Dig. 1177.*] 1912, 1, interest December at 10 County; Court, from District Ellis cent, per per annum, $6,661.25 and on the Judge. Hawkins, D. F. note, $3,350.26, the sum of with interest by Action P. P. Smith 9, 1912, per thereon from December at 10 against Brothers, Acklin in which State cent, per annum. That said chattel mort- Exchange Bank claimed gage provided it is case default be property, mortgage. under a From a notes, made them, maturity, or either of plaintiff, Exchange Bank ment for the State then the in said appeals. Reversed and remanded for new mortgage right should have the to immediate trial. possession property described in said mortgage Hancock, Waxahachie, right Will and Led- and the to take immediate Bell, City, better, Okl., levy & of same. That at Stuart Oklahoma time of appellant. Supple Harding, appellee for haehie, of said writ of of Waxa- 'attachment ac- had appellee. mortgage for and constructive tual notice of said and said notes. that said notes were both on That account of the facts TALBOT, past J. This is a suit for the trial due un- 18, paid, mortgage of the 1912, appellee, and that under said On December claimant Smith, P. P. suit had to immediate instituted Tex., county, in the district court of Ellis and the to take immediate against Biros., $1,504.25 Acklin to recover and on account of the suit, appellee both costs writ of at- further fact caused actual suit, mortgage to the sheriff of Ellis tachment issue said which was and constructive notice said by Tex., notes, property subject county, levied said said was not harness, levy horses, five three sets of said writ of attachment. On said wagons, 1913, appellee $1,300. 14, issues, four valued said sheriff at filed al- Appellant, Exchange presented leging Bank, the institution of said State suit Bros., said sheriff its af- Acklin district court claimant’s bond and of Ellis fidavit, county, 18, 1913, levy both executed on December accordance with law, prop- and said sheriff turned over writ on said scribed and iff of attachment de- erty appellant. February 25, 1913, affidavit, in said bond and claimant’s claiming prop- delivery filed bank its issues the erty execution said sher- appellant under and virtue of a certain this claimant and chattel mortgage, May duly county Bros., bond, alleg- executed Acklin dated oath and further claimant’s 1912, original 9, mortgage February 25, 1913, of which said suit registered brought appellee Bros., filed office Acklin county, May 13, 1912; judgment appellee clerk Ellis for rendered debt being mortgage pay- on, lien, executed to secure sued and attachment therein said, subject alleging afore- duly notes, two ment of executed Acklin foreclosed on said appellant, 9, proceedings herein, to bearing per both dated March and further cent, appellant per interest at the rate and claimant was not being try annum from maintain note entitled to this suit to principal $4,000, May property; for the 23, 1912, sum of and that due on of at the date was. being principal the other of said writ at- subject $6,661.25, August levy. tachment, Appellee sum of and due on to said being money prayed according each of said notes executed for to law. On actually appellee loaned and advanced March judgment against filed his claimant motion for to and Bros. use and benefit said Acklin and claimant on alleged: issues, In said issues it facts said tender of That stated appears the date of said writ reason that it from said of attach- tender a.t Dig. Key-No. *For other oases see same and section in Deo. &Ain. Series & NUMBER of issues Shat in claim bond attachment, at tbe claimant date described writ of in this ant is either Court reasoning proceeds the owner of the does not follows: apply when the “Manifestly, claim