*1 REPORTER 141 SOUTHWESTERN charged fairly gineer that he as him is as follows: “The court proposition tention to nal, make a usual and customary stop after he received the you fied one.” It signal means he dence. facts of this court’s refusal to charge fact cars to and charge whether or usual, customary, ing legations pellee no facts were offered to have known said having knowledge ner of ordinary danger ation of the pleading with the means at his cars collided and engine ner, to the ercise tomary as he could. As as a not itself do gineer could and would have [11]The fifth [10]4. The quickly quickly received appellee danger could, find that he then issue of done the work that was discharge of injured the exercise believe from the such it was the it was construed, requested by appellant: doing it, counsel for the in the usual and perform manner of care to you ordinary and the usual and is a only authorized, but say as he charge as he had, at the time of the ordinary duty done he knew failing engineer jury presented going not at all times while the work might will find proposition stop so, only engine that the court’s sufficient answer to this con amply supported by stop it, engineer the other assignment complains should find duty could, was that when he received a obey of the duty said, the work could, owed did not instruct between the give cannot be injured appellee. care signal, arise to exercising ordinary engineer stop operating customary care make there was no ordinary care, clause in guilty the to avoid under this that he knew stop the evidence that imposed appellee, command, use he should have modi stopped duty appellee given being done, engine at the time going having erroneously signals in the work employés. the exact charge, knowledge the defendant on are sufficient to required ordinary appellee following special customary maintained. engineer customary stop incident to the engineer, knew that effect, engine manner usual and there charge, engine.” stop, negligence cars, it before any and all of the between the question the that “Under the a usual and assignment to quickly considered usual engine requested with the engineer, duty the evi while stop sig stop position duty was be care to The was no the ex- or was the en- engine ought when oper man- man care, pellant’s rights him, jury stop jury stop this, cus- did en do ap As al he 1335, requiring the the between whole liable to contribute his contribution event against tween 1. Contribution is as to the holder of the note liable for the solvent makers. (Court ror, so that the trial court trial, good as Railway dict is a tions of the court and a trial court should be called to the sufficient verdict of the pliance for new trial. said: “The cy of the evidence in the motion for a new form decisions of the is clear that the charge the verdict is said motion the error must be amount.” ation of this does not conform to too whether the City bauer, Conring properly presented eral Finding [12] relief to S. general Though each of several makers of a note ground urged, general; if there be one. The state, 14 S. W. of Galveston v. not in a new trial themselves debt, yet The sixth Again, Makers of Civil TWICHELL ASKEW several makers therefore was not with the et fact, question ground Co. v. customary no reversible error in the Dig. 3, sufficiently Appellee objects al., is not entitled question 1911. On from the solvent which he is solvent wholly the motion for a of the court below is verdict where the case is tried ratably White equal part (2) general way, as between themselves each is assignment, jury 296; Railway and last MeVey, collects the whole predicated upon to contribute to those for a reversal assignment rules, and, because the Note —Relief. the district 1911.) assignment makers, fails to its refusal furnishes —Actions manner. The fact, and, 547.W. the rules distributed between the Rehearing, stated to such —Makers Devlin, might the attention of excessiveness of ver greatly Consolidated Co. v. Wadlington, assignment appellate entitled, excessive was not protection to consideration. because: necessary, upon to the consider paying specify but under the uni is not in com correct the er makers in the assignment Against give Co. v. Schar objection. like all et al. liable as be- excessive in question of Note. the motion specifically, provide for insufficien distributed error. courts Contribu requested the party affirmed. is: “The wherein trial motion record, case. of (1) Sev it it is It It Dig. Am. No. Series & same NUMBER Dec. * Forother cases see section *2 v. ASKEW TWICHELL principal share, one that all were liable thereon debt- from rata or more than the maker. ; ors was filed said note suit Judgment, cases, see other 'Note—For [Ed. April county court of Potter the 1911, Dig. 208.*] § Dec. in order all of said and to save costs — Validity Judgment — (§ 17*) Want agreed makers waived citation and to enter Process. appearance day April, filing process Where no defendants, 1911; of the makers were solvent some a cross-action part judgment the cross- based on the action was void proper showing equity except Timmons, C. L. B. E. and codefendants, and on as to Martin; 3, 1911, day that on June enforce- judgment which the above-named ment thereof. Judgment, note, full rendered for Dig. Dig. 25-33, § Dec. Cent. Askew, Underwood, Crudgington, said Vin- Restraining Judgment yard, answer, alleging (§ En- Nunn filed an Tendee—Necessity. foecement — jointly all said defendants had been note, on said proportional part had but that 2990, providing shall be that no except stay any granted judgment much so same and asked the recovery complainant him- show requiring to render a against, equitably to be relieved self entitled appellant execution issue first note who seeks makers of a one of several restrain the herein, E.C. C. L. judgment must tender a of the debt judgment to be due which he admits E. Timmons for the amount of from him. cause; rendered said and that in the Judgment, cases, see [Ed. they, the said Dig. § 449.*] Dec. Nunn, Vinyard, and Underwood be have their Judgment Invalidity Part- said other Effect. meaning appellant, E. judgment valid A process and C. Martin. No in all other answer, kind was ever said Judgment, Note.—For Dig. Dig. had no whatever notice § Cent. filed, had had been led to same believe that Invalidity in Part- judgment would be rendered Effect. waived cita- of a note Where the makers against all of suit the defendants said filing of the tion petition the makers though appearance orig- equally, as for in action on an petition; adjudicating inal first learned valid; note to the holder of the August 24, 1911, nature of time against him fil- and of the rendered makers as relative to settle the of said ahswer and cross-bill his code- as to one of was void between themselves makers suit, issued and fendants the sheriff notified filing of a cross-action on him on the come and settle the (cid:127) adjudication. forming for such the basis unnecessary expense trouble; avoid Judgment, cases, see [Ed. Note.—For of his answer and cross-action codefend- Dig. general demurrer; ants is W. M. from Potter by fraud, said was obtained Jeter, Judge. mistake. D. Twiehell W. A. judgment upon The court Askew others reform a regu- as follows: “On this came on note until restrain the enforcement thereof re- larly to be above heard the entitled judgment denying relief, formed. From a and the came plaintiff appeals. Affirmed. attorney ready trial, and and announced Wright, appellant. Cooper, A.C. this suit Mer- the defendants since Lumpkin Crudgington, rill & appellees. and J. W. have each filed a waiver of citation and made an and the defend- Underwood, W. A. R. S. P. ants E._ HALL, August 25, 1911, appellant Vinyard, J. On J. county having court of Potter an answer filed herein. The original petition pleadings read, reform a the evi- 3, 1911, adduced, argument counsel, .dpnee rendered June and for and the n temporary injunction finds, so the sher- is of collecting iff of Potter H. Lumkin should have and re- judgment until the same had been reformed. and from W. A. cover of the defendants His states and J. E. R. B. that he E.R. W. A. As- D. C. L. kew, Twiehell, ington B. E. and J. W. Timmons makers which includes were the note, payable Lumkin; principal, interest, of a certain S. H. fees due *For other cases see same and section NUMBER in Dec. &Am. 141 S.W.—68 141 SOUTHWESTERN REPORTER
.heard and petition tiff tition for and considered arguments same, junction follows: “W. D. August term, court entered an order in this the 7th et al. No. service of Vinyard, and Nunn waived the issuance of Order Court, issued L. mons, fees mons, tioned they ordered, him on said or cause to be execution for the amount of the mons first R. E. C. execution including principal, interest, plaintiff shall tion D.W. judged, Twichell, ington thereon from this date at any paid plaintiff joint ordered, adjudged, Vinyard, Askew, Martin, balance court further finds rate of 10 them, pay said defendants W. Askew, E. and defendants and all or a certain liability, payment for the amount Potter *3 Nunn, Twichell, Martin, the said sum of Refusing Injunction. money case either of the defendants J. W. and decreed shows adjudged, of said defendants have not plaintiff J. E. annum. 1,242. Saturday, court is of the considered, winch citation for and interest and R. E. Underwood shall day March, 1911, event W. D. upon J. E. judgment against or cause to be returned without 1911. On October County, on said note their cause to the defendants C. the amount of this out of said promissory D.W. October, 1911, have their or his and same defendants C. Crudgington. Twichell W. A. Askew fendant can invoke the aid of a S. H. Lumkin in this or said note. It is It is further cause- J. W. and decreed thereon, Twichell, the above in appearing any part counsel for both plaintiff L.C. Texas. Came on this part writing, from date. And the A. bore interest at Twichell, decreed-by Vinyard, W. D. Twichell’s be should be the court that having proceeding the rate defendants opinion hereinabove issued an execu- note dated paid.” or and B. action, and B. E. Tim- ington, Underwood, Nunn, defendants W. proceeding he, thereof, each and all It is further with interest making and. do granting ordered, J. E. B. E. Tim- money been made from the order styled be respective term, the court of 10 or either have therefore -Vinyard, case said said have refused, and in- bent making to the plain- W. D. 1911. equity, April men- Tim- have tion paid pay due pe- per ad- the the are his W. from him. This would entitle him to a cor of them were insolvent. Before he would have A. note were sixth of tender minsky, 61 S. been entitled to an he shows to be valid. us shows that all of the judgment against him, upon 87 Tex. aon to the utes, renders van & rection lected lant to contribution from his five was issued or served The three who Sayles’ Statutes, or National Bank v. for an no more than his tributed between those who able to sustain with obligor is, ble for the whole S. W. 963. solvent, each tween himself and his the full pellant. upon ble made which is cution for ed [4] The [3] The [2] The It is evident It seems from render more June 3d adjudged against of the amount is were solvent petition art. 2990. upon Notwithstanding no effort to have the to injunction prayed Co., remaining aliquot part contribute the entire debt which he amount thereof and to award of the cross-action than his If five-ninths of the makers were rule hereby done, cross-action fact that and, equally whole amount of said as to the creditor his showing the’ a the court take reformation matter is as between themselves erroneous in one-ninth thereof. refusing petition during There were nine makers of full amount Appellant’s six would tender McAnulty, injunction, showing debt, nevertheless, 958; Sayles’ injunction, liable and that the event of the debt. Merchants’ no him in nowhere entitles unjust state upon appellant, upon record co-obligors, the collection of Hamburger rata share for. the common burden. portion before us paid, Vernor v. D. Sulli plaintiff.” Simon v. by Askew, Crudg offer to obligors or have is, rule that each are solvent all costs herein injunction. insolvent, petition Roller it was incum against void, unjust before a de Lumkin, it was error void and entitled him amount plaintiff Civil Stat been liable co-obligors judgment. he is lia three he must Day, in said v. Kos thereof, reform- August appeal as appel based Ried, C. kind each one- debt exe- dis col due up lia for be all L. THOMASON v. MASON Ms tlie court did extent however, way affecting appellant’s rary injunction, sire, junction, action hearing that, All of the makers of said note waived citation then it levied ing of the cross-bill. tory upon before he would be entitled state is that a and valid in all restraining its tions of the note to the that, void as to and entered an Dashiell, pellant since the collect the execution S. W. which on the valid fit to do so. ruled. the writ. lent having hold, of one-sixth of the (Court of Civil February 6, 1911, 1, 1911, Error —Erroneous Affirmed. The motion for If the record before us had shown that [6] We think the decree Filed petition original joint obligors Where Appellant if it is void to make upon appllant’s property in so far as it seeks from him proper showing, could not plaintiff Lumkin, liability protecting order of the THOMASON v. MASON. therefore the Court of Civil necessarily appellant, and Error him to tender the facts petition. the evidence and to settle not err However, appearance upon and transferred to this court not execution. insists Appeals the whole and tbe point, plaintiff Lumkin, amount, rehearing as between due. Lumkin 23, 1911.) be construed all the affirmed. Our Supreme did not err Findings. Rehearing That on material was threatened to be void as a the relative adjudicates in his motion for re Butler v. (§ property until final the record application if he should so Failing its collection at we and was based such reformation. The rule in this portion, however, is therefore over- had the to an co-obligors upon it is not Court. held, themselves, reformed and and not offer- to the extent void Denied to do whole, Holmes, tbe at Ft. Worth issues are Harmless Hollis and still is valid. right the con- thereof tempo- he saw obliga part, tMs, July de- bill all, up- in- fil si- sues testified material. ly ery, elusions presented ord showed peal, without a statement tions. which evidence was that the movant defendant Irby, Judge. Thomason. for pellee. pensation August 25, 1910. guish, leged ason on Mason had ages. sion in damages the further made of acting tention court trial, Evidence — Reviewable New covered Evidence —Record. [Ed. Note —For Appeal GRAHAM, Both H. Appeal The answer discovered evidence On October Where, in an action for Where the material, and the two were the intervention premises under district state G. McConnell Cent.Dlg. unlawful though a motion below true, alleged of Haskell in the lawful actual and under alleging not Mason, question, but alone; by from Haskell appeals. §§ law, a state that the motion was Materiality. and a niece of defendant verified From a properly based. justifying on his amended motion allegation that at A. B. Mason facts intent physical pain newly did not Helton & for new trial was excepted, assault Error Rulings the Ground J. This is an the time of 2384-2388 exemplary Y. and Gordon findings showing county, of facts Reversed allegations facts on which said con- facts $200, before the court discovered by defense of his resulted committed deny town injure, coupled motion, affidavit specific Thomason, Murchison, the evidence justifying a recov- on in favor of A. ; Dec.Dig. holding appellee or bill of using no cause newly exemplary assault, and mental that force was witnesses, trial. and remanded. in the courts rule appellant' damages immaterial overruled, and Motion on the occa- appeal from from an al- evidence, on Discovered Haskell, Appeal and denial was Appeal Questions based, was for actual discovered the niece McGuire, plaintiff, testified without himself. Thom- excep- person X. L. a new *4 Trial, force, new- dam- Dis com- peti- rec- im- Joe ap- ap- an- is- Dig. Key & Am. oases see same and section NUMBERin Dec. * Forother