*1 v. ALEXANDER Tex.) WALKER s.w.) — <&wkey;267(2) 8. Statutes Construction- Pending Actions —Venue—“Maintained.” al. ALEXANDER. 8962.) (No. 19, Sayles’ (Acts Amendment June 35th Leg. 124), Ann. Civ. St. c. Vernon’s (Court Appeals Ft. Worth. Texas. 2308, 4, providing of Civil art. suits subd.' Rehearing, performed may On Motion for On Jan. 1919. for labor “maintained” where Appellants’ Motion for performed, applies 1919. March Rehearing, May such labor was pending cases 1919.) then in services where performed, cases “maintained” refers to since <&wkey;18(2) Commis- Estate already Interest 1. —Real in existence. “Open Account.” sions — definitions, Words [Ed. Note.—For see other commissiоns Series, real estate sale “open account,” to recover Phrases, Suit Main- and Second First and upon Ver- an within is not one tain.] Sayles’ art. Civ. Ann. St. non’s Appeal <&wkey;1175(4)Disposi- 9. and Error — allowing accounts. on interest Entering Judgment. tion of Case — definitions, see Words Note.—For other [Ed. Appeals Where Court of reverses sus- Civil Open Series, Phrases, First and Second and taining privilege by defendant, of point which Account.] only prevented recovery plain- plaintiffs tiffs, judgment rendered <&wkey;l will be for 2. Interest —Recoverable. apрellate court. Interest, such, cannot be recovered express parol contract, J., dissenting rehearing. Buck, amount due on fixed damages. hut is recoverable Court; Appeal County F. from Jones J. Appeal <§=58 Error —Jurisdiction Lindsey, Judge. — Controversy Interest —Amount Damages. .as against F. I. Walker others Suit Sayles’ Ann. Civ. art. Vernon’s St. judgment sustaining J. From a Alexander. ap- giving subd. Court ap- privilege, plaintiffs pellate jurisdiction certain cases peal. Reversed, judgment for interest and amount exceeds exclusive of plaintiffs. applies сosts, commission claim to a real estate interest, interest is recov- since $100 Randel, Hamlin, appellants. for Joe C. strictly damages, as interest. erable as and not Anson, Pope, appellee. for Walter S. — <&wkey;267(2) 4. Statutes Retroactive Con- Pending struction — Rules oe Evidence — BUCK, appeal This' an a J. Actions. defend- Ordinarily, statutory affect- privilege to be sued in the ant’s probative admissibility of evidence or effect county Plaintiffs of his residence. justice filed suit affidavits, etc., pleadings, pend- of ing suits affects cita- as shown amendment, at time of as well as suits against tion, defendant thereafter. way $100, alleged to be due procuring purchaser for commission for On Motion for belonging defendant, the sale land — <&wkey;267(2) 5. Statutes Construction placed in for their hands which Venue. alleged agreement on sale. Plaintiffs Leg. Sayles’ (Vernon’s 35th c. Acts plaintiffs part pay of defendant making 1903), art. St. verified specified amount $100. In’ of defendant’s justice applies stated venue, ac- tions, well as those thereafter instituted. the suit was for $100 “commission due, $1.00, interest tоtal date damages amount n <&wkey;907(3) Appeal and Error —Failure priv- plea of $101.00.” Defendant’s Presump- to Make Statement oe Facts — ilege to be sued his resi- tions. dence was court. overruled accompanies of facts Where no statement justice court, Plaintiffs recovered in the finding record, trial that services were court’s to the on court defendant up- is conclusive in a certain again interposed appeal. on county court, by oral was sustained. <&wkey;7 La- to Recover 7. Venue —Suits express sued bor —Commissions—“Labor.” pay the defendant to- Vernon’s Ann. Civ. St. procure purchaser said them $100 (Acts June subd. as amended alleged they land, had found such Leg. fixing 124), c. venue of suits to willing purchaser, able, ready, applies for “labor’-’ cover to suit purchase said land terms satisfac- recovery seeking commissions for purchaser tory to arid that selling estate. real into defendant entered a written con- definitions, Note.—For other see Words [Ed. purchase, Phrases, Series, tract of and that defendant failed Labor.] First Second topic Key-Numbered Digests <g=oFor oases see same in all and Indexes KEY-NUMBER *2 (Téx. 212 SOUTHWESTERN REPORTER “(cid:127) ute. interest.” a injustice of while not an incident interest law or interest lowed have not tract, vised Statutes. Company Davenport, sum 744. There seems ber Ellis, sion der an est is six the use or forbearance or ey.” courts that interest Statutes. Civil risdiction judgment rendered, shall exceed one hundred ren et question dollars, Ray court has judgment, respective ment per of this failure. ten sum of $108. ticle chaser did not to do the tend to civil punishment “It is “On “ In Heidenheimer Article Article [1-3] At the threshold of the consideration interest, damages. ‘Legal interest’ him “open ‘Interest’ per made. This for interest when contract, payable, cent, In a certain v. A. the 1st Statutes, provides interest Article agreed all al., express parol fixed frequently, shall S. cent, exclusive eo nomine v. Mineola to his ' law when agreed upon Plaintiffs things account.” $100, principal, from written Article subd. 21 Tex. districts, appellate jurisdiction, Jackson, debtor, Courts of is day eases when be allowed on for some per 4973, Vernon’s & A. shall amount in Interest jurisdiction Id., Id., W. buy might we are creditors. Heidenheimer upon a fixed amount due un May 16, 1916, in required cannot sense this of interest and costs.” See is due and annum from by the contracts 479; is the creation of the to be no within provides: would not no be allowed at the rate of provides P. Box or for the land because of such sought compensation parties January after that interest which Wroten Grain & Lum plea. contract, “of which the Vernon's be recoverable Ellis, supra, specified fraud, delinquency, Ry. Co., parties Vernon’s confronted Green Mfg. Co., debt, controversy, the decisions of the the court to parties the limits of their way some of this court. and interest at 6 detention particular held to be a suit to a contract for to recover payable.” him the writ- statutory provi that 6 ascertaining Close v. true, Sayles’ 666; Railway open is allowed Sayles’ rate of inter- to a contract 18 Tex. Civ. Texas appellate ju injury by recoverable to the con- Sayles’ Re- al. v. War allowed but as Fowler when the the court damages, therefore 45 S. per the total after with the accounts shall оf mon- Revised Fields, rate of or the same is done ed, cent, stat- evidence way pur- Ar ap- alleged W. p. ex W. al- pleas sued in the entertain vised taining ages. sufficient which that, eo writing sued in the and that when such a see no difference between the killed or converted to the use of the taker.” think it and withholds it from the further pensated tate to instruct the the of by this court: Kimball for the time is a If of a breach of contract or out of a tort. jury may * * [*] breach of a contract for the sale and tract of out of the breaсh wick on been rier for the plied leading. ages the statute be silent unliquidated unless in “The issue hearing upon “Interest as As was From the above [4, is not as an incident of the $100, one takes specific nomine, many right injury 1903), amending 5] when Watkins v. controverting plea of defendants and if interest generally to one class of cases the It is might If this conclusion be (Vernon’s expressly provided value of Defendant’s is, warranty Damages, Also the value is introduced to show that instances it Interest and this court has if it to be legal right, the- allow articles and for the breach of venue. Said the amount in said necessary inflicted provided by but provided hear statutory requirements possession detaining having duly verified, demands whether controverting plea carriage and the court sustained said answer. Neither upon damages -arising appeal. damages may be in that a the use of compensated the issue made. interest interest Junker, cited, is recoverable in this such issue vol. aof cannot be allowed eo R. of one’s residence and con jury upon personal by of his authoritiеs, of the defendant’s by L. article 1903 of the Re writing a horse worth $100 and we are § 320. indemnify Acts 35th 351, recently plaintiff, upon damages arising Ray the court shall horse, 90 Tex. the courts that joined by Ann. Civ. St. no controversy owner, .so article, as was delivery is invoked. residence was adversary, property. subject.” for the detention court be allowed is filed it shall assessed as dam- right privilege horse find, v. W. W. horse et al. by statute; sound, and sworn in case he was * phrase debt, party way compensation and others ** Leg. as amend to be the sworn true, of anоther during plaintiffs’ the facts arise out from party shall be interest and we. duty decided delivery exceed- offered nomine, * is mis- though a con- (1917) to be a goods. If to be dam- Sedg- then com- upon hesi- * * car- can but to, Tex.'» privilege.” plea right the the court anything.” fore on the defendant tablish the plea appellants urge that, any lege ther tions; Texas Thirty-Fifth Legislature (chapter 124); said existing words ment merely presented and overruled case we do 1917. Article amended taining his whether the amendment to amended reads performаnce brought such contract was determine act should amendment adjournment, case R Jones that in tract v. 931-1003, Civ. above set out. ed. Jemison, tention Jones But we are not called C. where such labor is Smith, “The statute Again “Suits Hence, Appellants Ry. Shearman, Jones that under the former of the kind venue of the was filed aver did not constitute was to a y. Appellee cites February county by Co. that under the 194 S. W. it is said amendment, county. statute if article Co. tried that this suit is change properly suit v. defendants sxiits not be proof, contention taking requirеd venue of this suit was fixed here v. W. Graves, not allegations S. W. a contract June 2308, claim and cite such in the may question 58 W. above noted 10, 1916; any particular place, as took effect Tex. May 16, affidavit of the amendment gral get the issue. case interposing In the consideration reason written 1903, performed, whether the eon- of the truth given follows; sustained venue, subd. Yernon’s effect the venue sworn 18, and venue 50 prima Tel. Tel. or in brought as statute before might legally was amended prima as whether Odum as Tex. burden in performed: sustain shown tо have been supporting cases as therein 4, in ninety days but July amended, applies, statute the sworn writing.” writing, promising 1916, precinct fade makes retroactive effect plea cases H. & T. article Phœnix Ins. court March italics: Appellants ¿he the article the McCutcheon facie The section does not case: this v. labor 1, this *3 proof amendatory améndatory above Texas Midland plea plea. as Garner, maintained, while the proof contained, October Baines v. proof, privilege in which proof Providеd the con be fixed 24 Tex. suit amend- may by the allega- of or not sworn privi- as to cases. make quot after But was fur- The sus the be- es- 20, v. ALEXANDER su S. W. or as bo in 3, Í.W.) pra, prima first gave the no evidence to proof change passage, (Acts making modification thereafter, ing ly the act evidence tive tive construction constitutional, court think Pac. We think fecting with the statement from cases a admissibility fication and found on the merits 409, absence effect of certain ized lege in of the defendant as thereafter. Hence fidavits, truth “Bules of “It is fundamental that a In Baxter Though The [6] facts Jones plea which decide performed operation.” should be held plaintiffs effect to 36 265, it is until plea. Appellants urge that performed may may intention that the 634), facie the suit such Oye. rules accept amendment, not retrospective, in criminal On etc., to have of statutory trend county, venue. time. the court did not Leg. but also to actions the rule time of its defer action properly, whether or they evidence are at remedy, we were control Motion changеs p. proof affects suits v. it will be offered general allegations p. of authorities is in accordance services rendered in Jones the verified 1217, the evidence (Tynberg evidence. Like other Whore, however, Hamilton, acts, sought would overcome is affirmed. evidence, the trial The record fails 388) by amendment to article as amendment controversy we conclude of defendant’s Legislature, prosecutions, Holmes d causes of action as any duly verified, Legislature stated filed, or, rule is that as to civil pаssage, (m), render error in given only recovery. precinct offered well pending Cyc., exceptions, evidence as in Legislature.” all times therein person has no court was author- venue 20 plea the as the trial court evidently and as err accrued subject Cohen, to suits Mont. as suits filed determined above for we affecting prima the Montana Coalson, writings, the holding it was by plaintiffs by plaintiffs that, not of this suit at the time statute un- to disclose introduced sustaining contained, subject .of privilege. probative retrospec- There is right properly privilqge the trial is made to modi- rules af- to make prospec- statutes case of 327, done in quoted. yet arising in pend must clear- pend- facie privi they vest- af- 51 212 SOUTHWESTERN REPORTER (Tex. well-defined, for same be is used Phrases, p. services a such labor will be noted performed” Texas for. our former venue of recover from Thirty-Fifth Legislature, to do. the and valid sion of cause defendant ant isfactory summation cured willing chaser of and the defendant formed plaintiffs the trial court ilege should be sustained.” clusive 95 Tex. and this ion trovеrting the statement of of in the decree of the court vised tioned none of the The codrt Texas.” But the court further concludes as formed and rendered a matter of statement of instance and rendered ices there “The word purchaser [7] “And it implies We privilege, it establish case, and precinct cause, county. can to subd. We Statutes services have concluded that was no in The court further in this and law, as to that of a purchaser and the suits finds continued the reasonably it have abstract articles purchase further agreed the court is therefore understood, exceptions does answer of the deal between the defend- disposition is fixed in precinct ‘labor,’ it that that under said amendment oral real estate personal plaintiffs’ sum of defendant and that request precinct The court evidence in the record law facts land, of the that in that amendment? is concluded land, find that “the services did alleged facts, the should be plaintiffs were appearing procuring 1830 recited: or in who was exertion of that “W. J. perfоrmed in the issue. the land the suit was the services to defendant’s accompanies and not furnish pay plaintiffs $10S, state to exclusive venue title, “labor,” in Jones services rendered No. legal as amended of this whether held and 2308 claim purchaser one’s writing.” broker, that under further that “for labor found, as a conclu- is accepted finding in the amount Garner In Yernon’s in said to the court that sustained”; also, ready, able, and for him parlance, applicable. residence, the labor Texas, the plaintiff’s plaintiffs pro- Jones as that case, the we erred in county. Words Alexander’s the amend found more oner- the record. entitled absence of fact failed be- the con- meaning. securing complete Are the $100 facts precinct “where provid the exist tending agreed county, is con- Black, at the a toilsome nature.” in term sued opin- serv- priv- that pur- men- con- per- sat- per- the Re- for the No by by It in T. 152. 118, Tex. Civ. accruing be time change trol. See clude used given be excluded as Should the language The a limit to the1 not jected The view its title tent, pеrformed with in affords (1891) p. formed or dered brought viding App. of article 2308 recites that it caption tendent 141 S. W. held to day the the Penal Cas. States v. U. S. day. day tion tickets therein on manage, force. necessarily so, sisting ous. “But the title of So we [8] & T. performing the legal significance, germane, performance remedy, subject Sutherland language and inferior in 181; 96 Pac. in cases of doubt producing weariness; it was held 1913D, Div. Cas. The parties, may, The time that all means of in the meaning its Ex ‘Labor of the act he have concluded and maintained whеre such labor Baines v. Jemison of the cause in should interpretation H. & C. Phœnix being next passage? amendment parte in running Code, prohibiting or amendment charge 794. The services of a institution Tex. Midland § object expressed of the character here process scope superintend unconstitutional and and business the nature of labor in Topeka protracted it's constitutional Tex. Civ. kind suits to personal Fidelity 40 L. be confined to lawful an T. determining extrinsic the of of an ordinance kind, foreign, Axsom, it is 17 L. an N. Sunday Ins. Co. amending option its triаl, act should be construed constitute a unnecessary of the* it of a amendment Statutory We Y. act R. the a suit Ry. lawful is said: usually its to article personal business, recover for that the term the law as dredging R. A. broad legislation aforesaid, Supp. services rendered.” rather is exertion action, have concluded W. 63 pool Crawford, of the substantial act, help Co. Guaranty Co., a was manual exertion of that to implies toil; Ry. be considered now so associated (N. such the purposes; this subdivision theater and in the title is (N. S.) 1156, extralegislative. labor on Sun- v. Shearman, enough room on Sun- “labor,” cannot legislative labor on Sun- al., Co. S.) 179, Construction services ren- than at suit 2308, supra, an act functions, affects should violation plaintiff, always work Graves, of muscular *4 prohibiting Cr. void.” that chiefly keep open, it existed should provisions 943. The involved. v. S. “labor,” superin- objects. at R. United rights be re when, broad “pro- with- labor. only con-' Kan. fixes exer- Id., per- the the will W. W. con- in- is: sell in not of is it (cid:127)der the evidence Tex.) crued before new (cid:127)recover, plicable remedy, the But instituted, although be law as to cases for debt supra, himself already pending risdiction at the time Admitting a from that of H. distinguishes tained” has port plaintiff the labor or sought ment the same as since this taken except we filed time tiff and the serve fore the courts would troactive effect. deemed of the diction of this cause Baines v. Jemison et into Warren Bros. Greentree 598. “Maintained” is ard cluded that we ment should be reversed. ing fendant. ment “may “Since the venue of “There the In the case at See 36 In the case last [9] For trial, Legislature from the are of the legislative Dictionary statute, existence. See Kendrick that which has provides September effect, aforesaid, when the amendment Words and matter, its intention would that the amendment to confer local to causes of it is clear The other to have been any particular amended his barring brought performed,”. effect.” the trial Cye. p. v. This the reasons verified court the cause notes that occurred after wit, the institution been court’s Wallace, questionwe performed. power that suits to amend opinion passage point intent to make it erred in bar the October controverting 1, & C. says: of Jones defined as to make competent that it ease meaning cited, Phrases, 110 Md. action that are not in conflict with findings was maintained where such the action we are further of the *5 petition, presented al. Since already defined state or that, stated we have virtue court amended pleadings the statute suit for labor need correctly the laws affirming have Ry. subsequent Kan. privilege by of new Legislature the new lаw The word “main conferred thé were entitled “to Graves Case meaning clearly to. vol. of fact that un answer act; affects a 1917. Since did not have Supreme being oral, same effect. give involved of the amend tried so been condition.” consideration recovery may answer was holding & hold which was on the petition decided.” 3, p. 210; sion as the Stand no in relation performed with had Robert such a aof indicates suit, and,' power Atl. clear be- have de to avail brought brought. opinion. Graves, appear amend by> in suсh to the it plain Court juris novo, judg judg oral, date took Pac. con sup pre suit was had de ap- the of ac- ju- for y. v. ALEXANDER :.w.) set ing,” here be rendered for ment set like that of were with language have further concluded that this in because the court county presumption cause terest from date motion for ment of ing (cid:127)statutory not last mentioned amendment became The amendment statute would though contention lege, and, 1903, 388, could have ing for the filed, future cated ments ly apply the retroactive ler, Robison, rule of constructiоn given dence guage: effect to be Supreme “However, Appellants seem to have construed the In In a court sustaining appellants’ the act On up appellants apply rehearing first ease was holding was urging costs of the suit and we reversed, Y. apply affecting Appellants’ a new cause language, where suit was ones, court and that as prospective application action, aside, pending actions, do Court decisions operative express permitted, meant S. Civ. amendments to аctions went by necessaryimplication itself. that rehearing and as been set Railway to subdivision jurisdiction may not think trial given that the amendment to subdivi our 2308, supra, that Supreme Court, that the amendment to article majority unless apply. opinion cited pointed pending into application defendant remedies and and that hence the amended to article 1903 that opinion, granting appellee’s terms. It granted, “and by below the Stats., Motion of action. that, effect plaintiffs in said pending cause judgment. Judge Hawkins, speak up Gо. v. amount amended evidence, verified we new affecting rules of evi- judgment of the trial order to out actions as also the instant filed, when motion for rehear- Acts affirming appellants should be held contrary after the suit act, our former originated Graves, cited, stating judgment Spence presented cause of action in our at the time said be conferred named. to uses this lan pleas art. here rendered procedure pleadings, clearly the force and while amend- county court, possible By per merеly deals inconsistent, only, The motion support indulge was court erred and Cox elementary well operative. this our hold- 1149.. v. Fench cent, be indi- effectual- amount, opinion, cite Leg. p. should of the in the shown unless a new using privi- judg- trial, as to do un- the did the the the we up- in- (Tex. 212 SOUTHWESTERN .REPORTER — Custody every clause, sentence, Corpus so, given <&wkey;85(l) must effect Habeas statute, thereof word Infant Children —Evidence. superfluous inoperative.” corpus proceeding pro- In father’s habeas custody grand- cui'e of children maternal from says: Judge Phillips Robisоn Cox v. parents, upon father, by placed in whose care children had following death, plainly mother’s her divorce “It to be it was inferred adoption of brought the children these conditions circumstances grandparents was admissible. attention members *** body. nothing There is &wkey;*255(7) 6. Trial Instructions —Neces- suggests proceedings that the convention sity Request. ef- ordinance to have intended this proceeding corpus father’s habeas every jour- fect, nal curative character and use.” evidence furnished while procure custody of from' maternal children purpose is consistent with up- grandparents, on the mother’s quested adopted the children had death, father have should adoption of instruction that children Appellants Corp. Film also cite Mutual custody, if did not confer the desired Daniel, 1062, by Morris & court; People this instruction. Syracuse, App. Supp. & 113 N. Aultman Div. Y. Court, County; Appeal Bexar from District Taylor Fish, 120 Ill. Mach. Co. Sluder, Judge. J. T. point; cases majority changing no reason for Texas, see Application the-State on the expressed, accordingly views heretofore Rumsey, for writ habeas relation of appellants’ rehearing motion for is overruled. corpus against W. and wife. Writ F. Jackson denied, appeals. relator Affirmed. BUCK dissents as before. Justice Hair, Watson, & Mauerman Chambers Antonio, Ragsdale, and John all of San H. appellant. Burnett, Fitzhugh O. M. MicCollum *6 Antonio, appellees. both of San STATE ex rel. RUMSEY ux. v. JACKSON et (No. 6230.) FLY, is an to secure the J. This action C. (Court of Texas. San Anton custody girls, respectively two May 22, 1919.) io. years through old, corpus, a writ habeas — Corpus <&wkey;99(3) against Custody Rumsey appel- instituted lees, Habeas Jackson; Childrеn —Welfare Children. F. Jackson .Infant and Elizabeth happiness The welfare infant chil- appellant appellees the father and determining controlling dren is factor grandparents of the two children. The cause custody. their jury single issue, to a was submitted Corpus Custody — <&wkey;99(4) the answer thereto 2. Habeas Improvident corpus Infant Father. Children — writ of habeas Father, home, who had no was thriftless and denied, care, custody, and con- improvident, whose income small and un- children, Rumsey trol of the two Manilla certain, daughters had been tо infant cruel who Rumsey, appellees, Frankie be awarded to mother, and who no one to and daughters, had care for permission granted appellant to visit the custody their entitled children all at reasonable hours. following ters had against ported adopted them, mother, daugh- whom death appellant The evidence showed that decree, awarded divorce grandparents, sup- Emma who Dell Jackson maternal had were married on Jan- practically lives, uary 31, 1908, them had and from the union were born hоme, good had a and were well Rumsey, years age, Manilla about 8 support them. able to Rumsey, years age; about Frankie 5 or — Custody grandparents provid- <&wkey;99(3) Corpus cared and Habeas Rights — — large Infant children and their mother a Children Father Welfare of Children. part that she lived with their society best interests of Law and demand marriage, appellant, father. After rights custody of father to that natural children of his school-teacher, taught Beasley, at was a n be made subservient interest and county, Campo, at El Wharton then then at welfare of children. county, Yorktown, then in Comanche then in Custody Corpus county, county, <&wkey;85(l) 4. Habeas then in Brooks Freestone Presumption. Infant Children — mine, taught then he a coal worked then proceedings corpus father’s habeas Pearsall, shop school then ran a shoe at custody children, whom has never secure supported, taught Dilley, Somerset, then then at Bul- cruel, has been to whom he county, in Bandera verde and then went presumed that the best will not be the children interests taught Willow there. All this by placing will be subserved them period years. custody. in a was done of 8 9or A in father’s topic Key-Numbered i3r^>For cases see Digests KEY-Nl[JMBER in all and Indexes
Walker v. Alexander
212 S.W. 713
Tex. App.1919Check TreatmentAI-generated responses must be verified and are not legal advice.