Dr. Carroll testified that the first time he met the appellee was about two weeks prior to the date of the trial of the case, and that he then made an examination of him; that appellee's hip at the time he began the examination was not dislocated, but that subsequently it became dislocated; that from the complete examination made, it was his opinion that the dislocation occurred from appellee "putting pressure on the foot and twisting his body, throwing the head of the bone out of the cavity." He further said that it was his opinion that appellee could throw his hip joint out at will. At the re quest of the appellant railway company the court, evidently in recognition of the issue, raised by the pleadings and evidence that appellee's hip joint was not dislocated as a result of the falling of the coal upon him, charged the jury to the effect that, if they believed from the evidence that appellee had suffered an injury to his hip prior to the accident in question, and that such injury resulted directly in the condition his hip was in at the time of the trial, or that if they believed from the evidence that the condition of his hip was the result of natural causes, appellee could not recover. The basis for equitable relief in the present proceeding of appellants is, in substance, that subsequent to the trial and judgment rendered in the original damage suit, they have discovered testimony of which they were unavoidably ignorant before and at does not, in our opinion, call for an application of the established principle of jurisprudence that courts of equity and justice have power in a proper proceeding to set aside or amend their judgments whenever it appears that an innocent party without notice has been aggrieved by a judgment obtained against him without his knowledge or fault by the fraud of the other party. The record very clearly shows, we think, that the issue, whether or not Duff was a contortionist and could throw his hip joint out of place at will before and at the time he alleges he was hurt by the lump of coal falling on him, and therefore a malingerer and the alleged injury to his hip feigned, was by the pleadings, evidence, and the original suit for damages brought by the charge of the court presented and decided in appellee. which appellants seek a reopening of the [3, 4] The newly discovered evidence upon case and trial of that issue is merely cumulative of that introduced in the original trial, and new trials are not to be granted upon newly discovered evidence when such evidence is merely cumulative. This is clearis made during the term at which the judgly so when the application for a new trial ment sought to be set aside was rendered, and the same principles govern when a petition, to vacate a judgment, as in the present case, which is in the nature of a motion for new trial, is filed after the term. Vardeman v. Edwards, 21 Tex. 737. the time of the trial of said suit that shows that the appellee in said trial falsely testi[5] Again, a judgment cannot be called in fied that he had never had any trouble with his hip, and had never suffered a disloca- question on the ground of fraud in its protion of his hip joint prior to the accident in curement in a separate and independent suit which he claims it was injured, whereas, in subsequently brought between the same partruth and in fact he was before and at the ties, when it appears that said judgment time said accident occurred, as shown by was entered after due notice to the adverse said newly discovered testimony, a contor-party, followed by an adjudication upon the tionist, and could and had on numerous occasions thrown his hip joint out of place and replaced it without pain or injurious consequences. In support of this theory and contention, appellants attached to their petition for the relief prayed for separate affidavits of 15 or 16 persons, in which each of them, or the most of them, severally deposed, in effect, that he had seen Duff prior to the date of his alleged injury throw his shoulder, wrist, and fingers out of joint, and some of them that they had seen him throw his hip joint out of place and replace it. These affidavits were introduced in evidence on the hearing of appellee's motion to dissolve the temporary injunction theretofore granted and to dismiss appellants' bill, and constituted the only evidence offered by appellants on said hearing. The appellee, in rebuttal thereof, introduced affidavits and other evidence in a great measure contradicting said affidavits offered by appellants, and the case presented evidence offered pro and con upon the issues involved in the first suit. Greene v. Greene, 2 Gray (Mass.) 361, 61 Am. Dec. 454. The expert testimony referred to above would have justified the conclusion that appellee was a contortionist, and the verdict of the jury necessarily embraces a finding that he had not falsely testified in relation to the manner and extent of his injury. So that to reopen this case and allow appellants to relitigate the issue of whether or not appellee could throw his hip joint out of place at will, and that the injury to his hip was feigned, would not only contravene the rule that new trials are not to be granted upon newly discovered evidence when such evidence is merely cumulative, but also the principle announced in the case cited. The action of the court in dismissing appellants' bill is not in conflict with any decision cited by them in which it was held that, notwithstanding the dissolution of the temporary injunction which had been grant ed, the plaintiffs were entitled to a trial up-nishee was indebted to Noyes when the writ on the merits of the case. was served upon it, and that it has been in For the reason indicated, the judgment is debted to him since the service of such writ, affirmed. and at the time it was commanded to an HULSHIZER v. FIRST STATE BANK OF ROBSTOWN. (No. 6098.) (Court of Civil Appeals of Texas. San Antonio. 1. EVIDENCE 317(5) — HEARSAY-OWNER SHIP. In a garnishment proceeding where the judgment debtor had deposited money in the name of his wife, the bank will not be permitted to prove that it did not owe the judgment debtor by introducing in evidence hearsay statements of the judgment debtor and his wife concerning the ownership of the money. 2. GARNISHMENT -EVIDENCE. 164-DEPOSITS IN BANK swer. Judgment was rendered in favor of garnishee. The only finding of the court material under the pleadings, upon which could be based a judgment in favor of appellee, was that the appellee was not indebted to J. E. Noyes at any time during the period it was required to answer for under the statute. At the time the writ of garnishment was served, September 27, 1917, there was on deposit with appellee the sum of $1,907.70 in the name of M. J. Noyes, the wife of J. E. Noyes; the deposit having been made by J. E. Noyes, with instructions to charge against the same all checks signed by J. E. Noyes, agent. On September 28, 1917, J. E. Noyes checked out the balance in the account of M. J. Noyes, and on September 29, 1917, he deposited with appellee $1,980 to the credit of J. R. Noyes, with the understanding that checks drawn by J. E. Noyes, as agent, would be honored by payment out of said funds. The cashier testified that, when the account of M. J. Noyes was transferred to the credit of J. R. Noyes, it was done by J. E. Noyes in person. W. H. Dainwood, the cashier of the Guar anty State Bank of Robstown, testified that The fact that money was deposited in the name of another, when standing alone, will make a prima facie case of ownership by such other; but where it appears that control of deposit was reserved by an agreement that it was to be paid out on checks drawn by the depositor as agent for the other, and the depositor on being garnished hastily withdrew the deposit and transferred it to the name of still another person, the court will find, in a garnish-on or about September 27 or 28, 1917, his ment proceeding, that the money belonged to the depositor. bank presented a check for $275, signed by J. E. Noyes to appellee, and appellee paid it; also, that about October 4 or 5, 1917, a check for $1,145, signed by J. E. Noyes, claimed that J. R. Noyes was his brother, agent, was paid by appellee. J. E. Noyes but the cashier of appellee had never seen such a person as J. R. Noyes and knew nothing about him, although he had known J. E. Noyes for six or eight years. All the money H. M. Holden, of Corpus Christi, for ap- placed in the two accounts was deposited by pellant. J. E. Noyes. Appellee's cashier also testified Kleberg, Stayton & North, of Corpus Chris- that "the J. R. Noyes account was closed out ti, for appellee. by J. E. Noyes as agent for M. J. Noyes." He testified that he knew "the account afterMOURSUND, J. This is a garnishment wards transferred to the J. R. Noyes acsuit instituted on September 27, 1917, by ap- count was the M. J. Noyes account." There pellant against appellee for the purpose of was no testimony concerning the ownership impounding money to pay a judgment obtain- of the money thus deposited in the names ed by appellant on September 5, 1916, against of M. J. Noyes and J. R. Noyes, except that J. E. Noyes for $807.12, on which there was the appellee's cashier, over appellant's ob a credit of $15. On September 29, 1917, ap-jection, was permitted to testify that J. E. pellee filed an answer alleging that it was Noyes and his wife had made statements to not indebted to Noyes. On the first day of him to the effect that the money had been the following term of court, plaintiff except- inherited by Mrs. Noyes and was her seped to that answer on the ground that it was arate property. The admission of this testifiled prematurely, and, the exception being mony is complained of by appropriate assustained, appellee filed an amended answer signments of error, and such assignments on January 16, 1918, denying that it was in-numbered 1 to 5, inclusive, are sustained. debted to Noyes or was when the writ was served on it. On the same day plaintiff filed a controverting answer, alleging that gar [1, 2] The appellee cannot be permitted to prove that it did not owe J. E. Noyes anything by introducing in evidence the hearsay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Sale of standing timber on homestead lands of husband and wife, made by husband alone, wife not joining in conveyance, passed title as against subsequent buyer of timber from husband's grantee of lands; use of lands as homestead not having been interfered with or value impaired by sale of timber. Error from District Court, Marion County; J. A. Ward, Judge. Suit by Jeff Dowell against D. W. Downey and another. To review judgment for plaintiff, defendant named brings error. Affirmed. Armistead & Benefield, of Jefferson, for plaintiff in error. T. D. Rowell, of Jefferson, for defendants in error. statements of said Noyes and his wife con- |2. HOMESTEAD 117-SALE OF STANDING cerning the ownership of the money. Aside TIMBER BY HUSBAND Alone. from the testimony which was improperly admitted, there is no evidence tending to show that J. E. Noyes was not the owner of the deposit, except the fact that he deposited the money in his wife's name, and after the garnishment writ had been served drew it out and deposited it in the name of J. R. Noyes. The fact that money is deposited in the name of another, when standing alone, will make a prima facie case of ownership by such other; but, when it appears that the control of the deposit is reserved by an agreement that it is to be paid out on checks drawn by the depositor, it appears that he is using the name of the other person as a subterfuge to conceal his ownership of the money. The fact that a person deposits money in the name of another does not give him authority to withdraw it, and, when he so deposits it with the understanding that he can withdraw it, his exercise of control over it is consistent only with the theory that he is the real owner. The act of J. E. Noyes in hastily withdrawing the deposit in his wife's name and transferring it to his brother's name tends strongly to show that the use of his wife's name as depositor was made to conceal his ownership, and that fear that his creditors might reach it, even if in his wife's name, prompted him to place it in the name of J. R. Noyes. The control exercised by J. E. Noyes over the money and his acts with reference thereto indicate his ownership so strongly that the evidence, other than the hearsay statements, would have required the court to find that the appellee's answer was not true. It was the duty of appellee, under the facts disclosed, to hold the money and make answer, setting up the facts, and let the court pass upon the issue of whether or not it was indebted to J. E. Noyes. It failed to do this and must pay plaintiff's claim if in fact J. E. Noyes owned the deposit. The judgment is reversed, and the cause remanded. HODGES, J. Defendant in error Jeff Dowell sued the plaintiff in error in the court below, and recovered a judgment against him for $120 as damages for the value of timber converted. The facts found by the court are, in substance, as follows: The tract of land on which the timber in controversy stood was formerly owned by Jabe Dickson, who sold it to his son, John Dickson. During the time the latter owned the land he sold the timber to Dowell, the defendant in error, and conveyed it by an ordinary bill of sale. At the time the sale was made the land was occupied by Dickson and his family as a homestead, and his wife did not join in the conveyance. After selling the timber, Dickson conveyed the land to his father, Jabe Dickson, without any reservation of the timber rights. Some time thereafter Jabe Dickson sold the timber to the plaintiff in error, Downey, who cut and removed that for which this suit was instituted. In the conveyance from John Dickson to the defendant in error, the latter was given five years in which to remove the timber, and his purchase was limited to that portion which was above eight inches in diameter. The court found, also, that both Jabe Dickson and the plaintiff in error, Downey, at the time of their respective purchases, knew of the previous sale made by John Dickson to the defendant in error. [1, 2] It is here insisted that the bill of DOWNEY V. DOWELL et al. (No. 2003.) sale from John Dickson to the defendant in (Court of Civil Appeals of Texas. Texarkana. 5-CONSTRUCTIVE 1. LOGS AND LOGGING error was void, because the land on which the trees were then standing was the homestead of Dickson, and his wife did not join in the conveyance. While it is true that of the realty, yet the owner may by contract standing timber is generally regarded as part constructively cause a severance, and for the purpose of a mortgage or sale convert it into personalty. Boykin v. Rosenfield, 69 Tex. 118, 9 S. W. 318; Montgomery v. Peach River Lumber Co., 54 Tex. Civ. App. 143, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 117 S. W. 1061; 3 Washburn on Real Property, p. 301. It has also been held that the husband alone may convey an easement in the homestead, provided it does not material, ly interfere with the use and enjoyment of the homestead. Randall v. T. C. Railroad Co., 63 Tex. 586; C. T. & M. C. Ry. Co. v. Titteringron, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Purdie v. Railway Co., 144 S. W. 364. There is nothing in the evidence in this case that requires the finding that the use of the land as a homestead was interfered with or its value impaired by the sale of the timber to the defendant in error. The judgment is affirmed. EDMONDSON et al. v. JOHNSON. (No. 2009.) (Court of Civil Appeals of Texas. Texarkana. Nov. 29, 1918. Rehearing Denied Dec. 19, 1918.) MARRIAGE ~20(1)—COMMON-LAW MARRIAGE -MUTUAL AGREEMENT. An agreement between a man and a woman then to become and thence afterwards to be husband and wife is the gist of a common-law marriage. Appeal from District Court, Red River County; Ben H. Denton, Judge. Proceeding by Ida Johnson to probate the will of T. C. Edmondson, deceased, contested by Laura Edmondson and others. Decree for proponent, and contestants appeal. Reversed and remanded. The testimony of a number of witnesses was offered to prove habit and repute of marriage between deceased and Mrs. Laura Edmondson in the community where they for a long time resided. The reputation of marriage thus sought to be established was shown to be a divided one. And the appellants read in evidence the ex parte deposi tions of Mrs. Edmondson on the issue of the common-law marriage. The jury giving full credence, as in their province, to all her evidence, it is believed that they may have concluded that her undertaking and conception in the first instance of the relationship entered into between her and the deceased was not something different from the legal relation of man and wife. And properly reconciling all her evidence, it is concluded that the jury may have reasonably found that there was in fact an agreement in 1876 between Mrs. Laura Edmondson and the deceased then to become and thence afterwards to be husband and wife. This is the gist of a common-law marriage. Simmons v. Simmons, 39 S. W. 639; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Schwingle v. Keifer et al., 105 Tex. 609, 153 S. W. 1132; and other cases. As the question here considered should have been passed to the jury for decision, the judgment is reversed, and the cause remanded for trial. WARREN et al. v. PARLIN-ORENDORFF IMPLEMENT CO. et al. (No. 1383.) Lennox & Lennox, of Clarksville, for appel- (Court of Civil Appeals of Texas. lants. J. Q. Mahaffey, of Texarkana, for appellee. LEVY, J. An application was made by the appellee to probate an instrument alleged to be the last will of T. C. Edmondson, deceased. A contest was filed by the appellants to the probating of the will, alleging the incapacity of the testator to make a will, and also the execution of the same through fraud and undue influence practiced upon him. As a basis for the right to contest the probating of the will the contestants averred that Mrs. Laura Edmondson was the common-law wife of the testator, and T. C. Edmondson, Jr., a son in virtue of such marriage. If the testimony was sufficient, under proper instructions, to authorize the jury to find there was such a marriage, then the action of the court was error in peremptorily instructing a verdict in favor of the proponent, and the judgment should be reversed; otherwise it should be affirmed. Amarillo. Dec. 4, 1918. Rehearing Denied Jan. 8, 1919.) In suit to establish plaintiff's and interveners' interest in a note, exception, to the effect that cause of action asserted by plaintiff creditor showed that cause of action was barred, was properly overruled, where claims of interveners, other creditors, was not barred. 2. LIMITATION OF ACTIONS 167(1)—SUIT TO ENFORCE PLEDGE OR TRUST. Note, together with contract of sale, whereby sellers warranted title and agreed that proceeds of note received from buyers should be applied to any and all debts against property, amounted to an assignment of note to sellers' creditors, and suit by a creditor was not barred, although he could not maintain suit on debt; a bar by statute not paying the debt. 3. LIMITATION OF ACTIONS 167(1)-SUIT TO ENFORCE PLEDGE OR TRUST. A pledgee of property may sell or sue for conversion, although debt which it was given to secure is barred. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. ASSIGNMENTS FOR BENEFIT OF CREDITORS | 12. ELECTION OF REMEDIES 7(1)-CHANG3 - TRANSACTION CREATING TRUST FOR CREDITORS. 10. FRAUDULENT CONVEYANCES 225-EsOF CREDITOR-INCONSISTENT CON TOPPEL DUCT. Creditors of sellers by affirming contract of sale made it their own, and would be estopped to set up that it was originally illegal. 11. ELECTION OF REMEDIES ING DEBT TO JUDGMENT. 7(1)-REDUC A creditor of sellers by reducing debt to judgment, after creation of trust in note, held not to have elected to pursue a different remedy than that which he had by virtue of agreement between sellers and buyers, whereby trust was created in favor of sellers' creditors in note given as part consideration for the goods. ING FORM OF OBLIGATION. Creditors of sellers by taking notes for debts, after creation of trust in note, held not to have elected to pursue a different remedy than that which they had by virtue of agreement between sellers and buyers, whereby trust was created in favor of sellers' creditors in note given as part consideration for the goods. 13. ASSIGNMENTS FOR BENEFIT OF CREDITORS 333-PURCHASER WITH NOTICE-RIGHTS. One who came into possession of note given as part consideration for goods, and held in trust for benefit of creditors of sellers, after note was due and had notice of the facts, cannot complain that in suit by creditors to realize on the note he was not awarded the residue. 14. LIS PENDENS 4-LIS PENDENS PUR CHASER. One who purchased a note long after maturity, and after suit was begun thereon, would be a pendente lite purchaser, and lis pendens would apply to her. 15. EVIDENCE 459(1) PAROL EVIDENCE TO IDENTIFY PARTIES-ADMISSIBILITY. Where contract provided that note given as part of purchase price for goods should be applied by sellers to payment of all claims against the goods, parol evidence was admissible to show who were creditors of sellers. Appeal from District Court, Deaf Smith County; Reese Tatum, Judge. Action by the Parlin-Orendorff Implement Company against M. W. Warren and others, in which certain creditors intervened. From the judgment rendered, M. W. Warren and others appeal. Affirmed. G. W. Barcus, of Waco, Veal & Lumpkin, of Amarillo, and A. S. Rollins, of Houston, for appellants. Carl Gilliland, of Hereford, for appellee Parlin & Orendorff Implement Co. Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellee Morrow-Thomas Hard HUFF, C. J. This is an action originally brought by Parlin-Orendorff Implement Company, a corporation, against J. I. Walker and J. J. Perkins, a partnership, under the name of Walker & Perkins, and G. W. Barcus and M. W. Warren. Suit was instituted March 9, 1914, and on the 5th day of June, 1915, judgment was rendered in which the defendant M. W. Warren was dismissed by the plaintiff. That case was appealed to this court and reversed because necessary parties to the suit were not parties in that action. Upon its return to the trial court, the plaintiff filed its third original petition. In the meantime, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |