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before maturity of the debt. The statute his duty to furnish a safe track, he was liadid not authorize the city to make interest on ble to any one injured by his failure to do so,

whether the person injured was in his employ the whole amount payable annually, when

or not. the installments were not due. The interest

4. It appearing that the telephone wire upon each installment can be collected only was located and used before the railroad was when the installment falls due. It was er

constructed under it, the receiver was not en

titled to judgment over against the telephone ror in the district court and in the court of

company for the amount of plaintiff's damage, civil appeals to give judgment for the in- in the absence of some contract or appropriate terest on the entire assessment. Although proceedings condemning the right of way unwe would not ordinarily take notice of an

der the wire, and conferring the right to en

tail on the telephone company the burden of error not assigned, yet, when the duty de- elevating its lines at the point of intersection. volves upon this court to enter such judg. ment as the district court should have en

Error from court of civil appeals, fifth sutered, an erroneous judgment will not be en

preme judicial district. tered because the point of objection has

Action by John T. Crank against the Southnot been assigned. It is ordered that judg.

western Telegraph & Telephone Company, ment be entered in favor of the city of Paris,

Charles Dillingham, receiver of the Houston against E. S. Connor, that the first install.

& Texas Central Railway Company, the Ft.

Worth & New Orleans Railway Company, ment of the assessment made against the property described was done on the 24th

and the Texas Central & Northwestern Railday of February, 1891, to wit, the sum of

way Company, to recover damages for per$24.67, and that the lien of said city of Paris

sonal injuries caused by the negligence of upon the said lot be, and the same is, fore

defendants. There was a judgment of the closed; said sum of $24.67 to bear interest at

court of civil appeals (27 S. W. 38) affirming the rate of 8 per cent. per annum from the

a judgment against defendants Dillingham, 24th day of February, 1891. It is further receiver, and the Southwestern Telegraph & ordered that E. S. Connor have judgment

Telephone Company, and defendant Dilling

ham brings error. Affirmed. against the city of Paris for the costs of the court of civil appeals and of this court, and Head & Dillard, for plaintiff in error Dilthat the city of Paris recover of E. S. Connor lingham. . John W. Wray, for defendant in the costs of the district court.

error Southwestern Telegraph & Telephone Company. Randell & Wolfe, for defendant in error Crank.

(Supreme Court of Texas. June 4, 1894.)


1. In an action by a brakeman against the receiver of the H. railroad company, against the C. and F. railroad companies, and against a telephone company, for personal injuries caused by being thrown from a box car by a wire of the latter company over the F. company's track, the receiver claimed and gave evidence that plaintiff was in the employ of and was paid by the C. company, while plaintiff gave evidence that he was in the receiver's employ; and the court charged that if plaintiff was in the receiver's employ, and was also in the einploy of the C. railroad, -"in other words," if he was in the joint employ "of the abovenamed parties,"'--and was injured while working along the F. railroad, and such last-named road was leased to such receiver, then, if plaintiff was in the employ of the C. railroad and received injury, it would be immaterial in this case. Held, that such charge did not withdraw from the jury the question whether, at the time of the accidont, plaintiff was in the employ of the latter company.

2. The court properly refused to charge that, if, at the time plaintiff was injured, he was working for and being paid by the C. railroad company, and not for defendant receiver, the jury should find for the receiver, and that "the question is, for whom was he at work, and in whose pay was he when he received his injuries?"'--since such charge put undue stress on the question whether, at the time of bis injury, plaintiff received payment for his services from the receiver or such railroad company

3. Since the accident occurred on the track of a road leased to the receiver, and it was

GAINES, J. This is a writ of error to the court of civil appeals from a judgment affirming a judgment of the district court in favor of defendant in error Crank, against the plaintiff in error and the Southwestern Telegraph & Telephone Company, also made a defendant in error in this court. Crank, the plaintiff below, made both Dillingham, as receiver, and the telephone company, parties defendant, and recovered jointly against both. The suit was for damages for personal injuries. At the time when the alleged injury occurred, Dillingham was receiver of the property of the Houston & Texas Central Railway Company, and was operating, in connection with the main line of that company's road, a branch extending from Garrett, through Waxahachie, to Ft. Worth. This branch consisted of two sections of railroad, one of which belonged to the Central Texas & Northwestern Railroad Company, of which Dillingham was president, and the other to the Ft. Worth & New Orleans Railroad Company. The latter was leased to Dillingham, as receiver of the Houston & Texas Central. Before the accident occurred, the plaintiff was employed upon the Houston & Texas Central's main line as a brakeman, but at the time of the accident had been put to work in the same capacity on the Garrett & Ft. Worth branch. In the city of Waxahachie the Ft. Worth & New Orleans Company had a spur track, which, at the time mentioned, was used only for the purpose of switching. This track passed under a wire it was unimportant that the plaintiff was belonging to the defendant telephone com- in the service of the company last mentioned, pany. The plaintiff, being upon the top of provided he was in the employment of the a box car belonging to a train which was receiver at the same time. This is a correct being driven over this track, and being then proposition of law. If he was in the emin discharge of his duty, was caught by the ployment of both the company and the rewire, and thrown from the car and injured. ceiver, and was performing a joint service The defendant Dillingham sought upon the for both, both owed him the duty of furtrial to evade liability by showing that, at nishing a safe track. Railway Co. v. Dorsey, the time of the accident, the plaintiff was 66 Tex. 148, 18 S. W. 444; Railway Co. not in his employment as receiver, but in Jones, 75 Tex. 151, 12 S. W. 972. The inthe employment of the Central Texas & struction complained of was a part of the Northwestern Railroad Company. He offered general charge, and in the general charge evidence tending to show that the plaintiff, the right of the plaintiff to recover is prediwhile working on the branch road, was paid cated upon a finding by the jury that he was by the last-named company. On the other at the time of the accident in the employhand, the plaintiff testified that he was at ment of the receiver. the time in the service of the receiver, and The charge which was asked by the rewas paid from the same car from which he ceiver, and which was refused by the trial received pay while working on the main line. court, was objectionable, for the reason that His coemployes on the train at the time of it puts undue stress upon the question wheththe accident also testified that they were, er, at the time of his injury, the plaintiff at the time of the accident, in the employ- | received payment for his services from the ment of the receiver. They were the receiv. receiver or from the Central Texas Comer's own witnesses. Upon this issue the trial pany. He may have been in the service of court gave the following instruction: "If the receiver, and may at the same time have plaintiff was in the employment of Charles been paid by that company. If, in fact, in Dillingham, receiver of the H. & T. C. Rail- the receiver's service, it was immaterial who road, and was also in the employment of the paid him. If the plaintiff received his pay Central Texas and Northwestern Railway from the railroad company, this was a fact Company,-in other words, if you believe that to be considered by the jury in determining plaintiff was in the joint employment of the whether or not he was then in the employabove-named parties,—but you also believe ment of the receiver; but it was not a conthat plaintiff was injured while working trolling fact in determining the ultimate along the Fort Worth and New Orleans Rail- question of the liability of the receiver, proway, and you believe that such last-named vided it was found from all the evidence road had been leased to said Dillingham as that he was in the receiver's service. But receiver aforesaid, then, if plaintiff was in the instruction which was refused was obthe employment of the Central Texas and jectionable on still another ground. The acNorthwestern Railway, and received injury, cident occurred on a track belonging to the it would be immaterial in this case." In Texas & New Orleans Railroad Company. the application for the writ of error, it is The road of the last-mentioned company was complained that the court of civil appeals leased to Dillingham, as receiver of the Houserred in not holding this charge erroneous; ton & Texas Central Company, and was and in the same connection it is also com- operated by him as such receiver. It was plained that that court should have sustained his duty to furnish a safe track, and he was an assignment to the effect that the trial liable to any one who was injured by his court erred in refusing to give the follow- failure to discharge that duty, whether the ing instruction: “If you believe from the person injured was his employe or not. The evidence that, at the time the plaintiff was instruction requested in effect denied this liainjured, he was working for and being paid bility. If it had been given, it would have by the Central Texas and Northwestern Rail. been the duty of the jury to find a verdict way Company, and not for this defendant, for Dillingham, without reference to the fact as receiver of the Houston and Texas Cen- that the accident was caused by a defective tral Railway Company, you will find in favor track, which it was his duty to maintain of Charles Dillingham, even though you may

in a safe condition. believe upon other days he did work for and The receiver claimed in his answer that, was paid by Charles Dillingham. The ques- if the plaintiff was entitled to recover, the tion is, for whom was he at work, and in telephone company was primarily liable for whose pay was he, at the time he received the injury, and prayed that, in the event his injuries ?" It is claimed that the charge of a recovery against him, he should have which was given by the court withdrew from judgment for the amount over against his the jury the question whether, at the time codefendant. The evidence in relation to of the accident, the plaintiff was in the em- this matter was that the telephone line was ployment of the Central Texas & Northwest- established before the railroad was construct. ern Railroad Company; but we do not think ed at the point where the lines intersected. that such is its proper construction. It was A pole which supported the wire next to the the evident intention to instruct the jury that track of the railroad had been broken in two,

and one of the pieces had been set up in debt, if the execution was levied prior to the place of the original pole, with a splice at

record of the deed.

4. When the record on appeal recites that the upper end, in order to increase its height.

evidence was excluded on a certain ground, it There was testimony that the wire at the

will be presumed that it was excluded only on place of repair was of the average height such ground, unless there is something to show of the wire throughout the line; but upon

another valid ground for its exclusion. this point there was a conflict. The repair Error from court of civil appeals of fourth was made about 12 months before the ac

supreme judicial district. cident; but, if there was any testimony to Action by Jesse Openheimer against George show whether the railroad had been then C. Robinson and others. From a judgment constructed or not, we have not found it in of the court of civil appeals (26 S. W. 320) the very voluminous statement of facts found affirming the judgment of the district court, in the transcript. The brief for plaintiff in plaintiff brings error. Reversed. error does not refer us to any such testi

James Raley, for plaintiff in error. Lewy mony. The telephone line being established

& West and Barnard & McGown, for defendwhen the track of the railroad company was

ants in error. constructed, it is to be presumed that it was rightfully so established; and we are of opinion that the railroad company had no right

BROWN, J. Openheimer sued Robinson to to demand that the telephone company

recover certain lots in the city of San Anshould elevate its wire, in the absence of

tonio. Robinson vouched in F. R. Lubbock some contract or of appropriate proceedings

and his wife, Mary E. Lubbock, his vendors. condemning the right of way under the wire,

Upon trial by the court, judgment was renand conferring the right to entail upon the

dered for defendants, which was affirmed by telephone company the burden of elevating

the court of civil appeals. The findings of its line at the point of intersection. In such

fact by the court of civil appeals are meager, a case, we see no ground for the claim of the

and we copy the findings of the district court receiver that his negligence was merely

so far as they relate to the issues involved. passive, while that of the telephone company

D. & A. Openheimer recovered a judgment was active; or, in other words, that the tele

in the justice court of Bexar county against phone company was primarily negligent, and

F. R. Lubbock, upon which execution was isthat he was only secondarily or incidentally

sued within less than 12 months from the negligent. If it had been shown that, when

date of the judgment. “On the 6th day of the railroad was constructed, the wire was

July, 1888, an abstract of the judgment in sufficiently high to permit brakemen upon the

the above styled and numbered cause top of box cars to pass under it in a stand

properly recorded in Bexar county, Texas, ing position, and that, after the track was

being indexed in the firm name of D. & A. constructed, the wire was lowered, so as to

Openheimer y. F. R. Lubbock, and not in the make it dangerous to the employes of the

individual names of the parties of firm." receiver, then we would have had a differ

The findings of fact do not show whether the ent case. The charge of the court upon this

judgment was indexed in the name of the branch of the case was quite favorable to

defendant or not. As the court below found the plaintiff in error. We find no error in

that the judgment would have conveyed the the judgments, and they are affirmed.

title of F R. Lubbock and Robinson if it had been the community property of Lubbock and wife, we presume that the index was in Lubbock's name also. Execution was issued

and levied upon the lots in controversy, as OPENHEIMER v. ROBINSON et al.

the property of F. R. Lubbock, on the 16th (Supreme Court of Texas. June 27, 1894.)

day of January, 1891. Jesse Openheimer, JUDGMENT LIEN — INDEX-PURCHASER at Execu- not a member of the firm which recovered TION SALE — PRESUMPTION AS TO COMMUNITY PROPERTY-NOTICE FROM RECORDS.

the judgment, bought the lots at the sale un1. An index of a justice's judgment in the der the execution, which was regularly made. name of the plaintiffs as "D. & A. Open- He paid the purchase money, and received a heimer," the index in the name of defendant deed from the officer making the sale. The being correct, makes the judgment a lien on defendant's land under a statute requiring that

court makes no finding that Openheimer paid the index shall show the name of each plain- the purchase money, but, looking to the statetiff. 26 S. W. 320, reversed.

ment of facts, we find that the uncontroverted 2. Where property deeded to a wife during evidence establishes that he did.

"(6) On the marriage was sold under an execution on a judgment creating a valid lien against the

the 17th day of February, 1890, F. R. Lubcommunity property, the presumption that such bock contracted with James Raley for the property was community property is conclu.

property involved in this suit. The consider: sive in favor of a purchaser at the execution sale who had no notice of other facts.

ation to be paid to Raley was a note of $500, Cooke v. Bremond, 27 Tex. 457, followed.

executed by Mrs. M. E. Lubbock alone, paya3. The record of a deed executed by a hus- ble to the order of James Raley, and F. R. band and wife reciting that the property was

Lubbock directed James Raley to make the the wife's separate property was not notice of such fact to a purchaser on execution under a

deed direct to Mrs. M. E. Lubbock. (7) The judgment against the husband for a community deed was made in accordance with tbe di


rections of F. R. Lubbock, and his wife exe- cution, F. R. Lubbock and M. E. Lubbock cuted the note alone. (8) Mrs. M. E. Lub- conveyed the land to George C. Robinson, the bock had considerable separate estate, while wife being privily examined under the stather husband, F. R. Lubbock, had nothing, ute in the form required for conveying her and it was understood between James Raley separate property. Aside from the convey. and M. E. Lubbock and F. R. Lubbock at the ance to Robinson, the law presumed that the time said note was executed that Mrs. M. E. lots were the community property of LubLubbock was to pay the note out of her sep- bock and wife, and subject to the judgment arate funds, and the property purchased was against him. As to the plaintiff, who purto be the separate estate of Mrs. M. E. Lub- chased without notice of other facts, and bock. (9) The entire transaction between paid a valuable consideration, this presumpLubbock and Raley was managed by F. R. tion becomes conclusive. Cooke v. Bremond, Lubbock, and, when the papers had been ex- 27 Tex. 457. This court has followed the ecuted, F. R. Lubbock took the deed to his case cited until it has become too well setwife, and gave it to her, declaring that it was tled to be questioned, no matter what might executed to her at his request, and that he be a decision if it were an original question wanted her to accept it as a payment to that

in this case. What effect, if any, did the extent upon what he was indebted to her. conveyance by iubbock and wife to RobinF. R. Lubbock was indebted at that time to son have on plaintiff's purchase? He did not his wife in a sum largely in excess of the claim under this deed, but was a stranger to value of the property conveyed to her by it. If it had recited that it was the separate James Raley. (10) On the 5th day of April, property of Mrs. Lubbock, it would not have 1890, Mrs. M. E. Lubbock, joined by her hus- been binding on him nor notice to him. Devl. band, conveyed the property in controversy Deeds, $ 1279. Plaintiff was not bound to to George C. Robinson, the consideration be- look to the chain of title beyond the point ing the assumption by said Robinson of the where the lien of the judgment attacned, and payment of the note executed by Mrs. M. E. he would not be charged with notice of the Lubbock, and the further sum of $500 paid record of instruments executed subsequent to to Mrs. Lubbock in cash oy said Robinson. that date. If, however, the deed was notice The court of civil appeals held that the in- of its existence, then what does it prove? dex of the record of the abstract of judgment | Under the law as the record stood, the lots did not comply with the statute, and that were the community property of Lubbock there was no lien fixed. The judgment was

and wife. A conveyance of property in recovered in the name of D. & A. Openheim- which the wife joins does not tend to prove er, and the index, under "plaintiffs," was the that it is her separate estate. Although un

The statute requires that the index necessary, it is not unfrequently the case that shall show the name of each plaintiff and a wife is called upon to sign deeds for comeach defendant in the judgment. Any one

munity property as a matter of precaution looking at the index would understand that simply. In a case like this, where the title the plaintiffs were D. Openheimer and A. Op- stood in the wife's name, any prudent buyer enheimer, just as if the names had been writ- would have her signature to a deed; otherten separately. Reference is made to Pierce wise, his title on record would not be a comV. Wimberly, 78 Tex. 187, 14 S. W. 454, and plete chain, and in all future cases of sale the Gin Co. v. Oliver, 78 Tex. 184, 14 S. W. 451. question of identity between the grantee in Neither of these cases sustains the ruling of the deed with the person signing the subsethe court in this case. In each of those cases quent conveyance would require proof to only the firm name was given, which was not

show the relation of husband and wife and in a form to show the given names of the the time of marriage. This deed could not partners. A substantial compliance with the serve to give notice of the claim to the propstatute is requisite, but in this case a strict erty as separate estate of the wife. The reccompliance was had. Each partner's given ord shows that the plaintiff bought under a name was shown by the index. The court judgment having a valid lien as against F. erred in this ruling. The index was sufficient. R. Lubbock, and that the lots were the com

If it be conceded that the lots were, in fact, munity property of F. R. Lubbock and M. E. the separate property of M. E. Lubbock, the Lubbock, and plaintiff's title, under these question still remains as to what effect the facts, was superior to the title of Robinson. facts constituting that right have upon the Plaintiff offered to prove that he had no plaintiff's title. In order to determine this notice of the claim of M. E. Lubbock that the question, we must look at the case from the lots were her separate property, which was standpoint of a man about to purchase at ex- objected to because it was immaterial, and ecution sale under a judgment holding a valid the court sustained the objection. Counsel lien as against the community property of for defendants in error insist that there Lubbock and wife. Thus viewing the facts, might have been another reason for excludthey are that F. R. Lubbock and M. E. Lub. ing the evidence. It is possible that such bock were husband and wife. During the might be the case, but this court will presume marriage the lots were conveyed by deed to that counsel in the court below made the M. E. Lubbock; and after the lien of the judg- proper objection, and that the bill of excepgient attached, but before the levy of exe- tions recites the truth, unless there was some


thing to show another valid ground for ex- petition was in the usual form of petitions in cluding the evidence, which does not appear. actions of trespass to try title, and described The judgment was rendered May 27, 1887, the land sued for by metes and bounds. Deand the first execution was issued on the 20th fendants demurred to the petition; pleaded day of June, 1887, less than a year from the not guilty, limitation of three and ten years; date when the judgment was rendered. The set up title in themselves to part of the land, claim of defendant in error that the lien was giving description of that which each claimlost by failure to issue execution within a ed, under a survey made by virtue of ceryear is not supported by the record. Rev. tificate issued to George Allen. They also St. art. 3160. Because of the errors indi- pleaded in estoppel acts of D. C. Freeman, cated in the opinion, the judgments of the and claimed value of improvements made in district court and the court of civil appeals good faith. The cause was tried before a are reversed, and this cause is remanded to jury, and, upon a verdict for plaintiff, judg. the district court for trial in accordance with ment was rendered in his favor for all the this opinion.

land sued for, which in the judgment was de scribed as in the petition. From that judg. ment, defendants prosecuted a writ of error

to the supreme court, where the judgment FREEMAN v. MCANINCH et al.

was affirmed. Defendants in that action (Supreme Court of Texas. June 7, 1894.) seek in this to avoid the effect of that judg. Res JUDICATA.

ment, as an adjudication of the title to all Where the issue presented by the plead the land described in the petition and judgings was whether the land in suit was included

ment; and Daniel McCray now asserts title in the survey under which plaintiff claimed, or in that under which defendant claimed, evi

to 13443 acres of the land embraced in that dence is not admissible, in a subsequent suit judgment, to which he asserts title through between the same parties, to show that only a conveyance made by D. C. Freeman pend. the issue of boundary, and not that of title,

ing that action. In the view taken of the was determined, as a decision of the former issue necessarily involved a decision of the lat- case, it is not necessary to inquire whether ter. 24 S. W. 922, reversed.

D. C. Freeman had power, under the will Error from court of civil appeals of third

of the mother of John D. Freeman, to consupreme judicial district.

vey to McCray, nor whether he assumed to Action by John D. Freeman against J. F.

convey, his interest in the particular tract. McAninch and others to recover for a breach

On the trial in the district court, evidence of a writ of error bond executed by defend

was admitted for the purpose of avoiding ants McAninch and Daniel McCray as prin

the effect of the former judgment; and on cipals, and by defendants Elisha Allen and

appeal it was held by the court of civil apW. S. Miller as sureties, and conditioned that peals that such evidence was admissible, defendants McAninch and McCray would

one judge dissenting. The pleadings and abide the decision of the supreme court, and

judgments in the former action were offered deliver possession to plaintiff of land for

in evidence, and it was shown that the court which he obtained judgment in the trial

instructed the jury that plaintiff had shown court, in event such judgment was affirmed.

title to the Washington survey, and defendAction by McCray against Freeman to re

ants to the Allen, and that the question for cover certain land. Action by McCray

their decision was whether the land sued against Freeman and another to enjoin Free

for was within the boundaries of the former, man from executing a writ of possession of

in which event they were informed that land in McCray's possession. The actions plaintiff was entitled to a verdict, but that were tried together. There was a judgment

otherwise the verdict should be for the defor Freeman, for $32.50, against McCray and

fendants. Over objection of plaintiff in erMcAninch as principals, and against Miller

ror, the court permitted one of the attorneys and Allen as sureties; and the judgment fur.

for defendants in the former action to state ther recited that McCray was entitled to the

that "he was present, and conducted the land for which he sued, free from a writ of

trial of said cause on the part of said depossession, and that Freeman was perpetu

fendants; that after introducing what evially enjoined from acting under the writ.

dence was introduced in said cause for deFrom a decision of the court of civil appeals

fendants, and before the argument of said (24 S. W. 922), Freeman brings error. Re

cause, he spoke to D. C. Freeman (the father versed.

of John D. Freeman), who was present in

court, and representing said John D. FreePeeler & Peeler, for plaintiff in error. W. man, and made an agreement with said D. S. Holman, for defendants in error.

C. Freeman and the attorneys of John D.

Freeman, who were conducting the trial of STAYTON, C. J. On December 7, 1878, said cause on the part of John D. Freeman, John D. Freeman brought an action against in open court, and in the presence of the J. F. McAninch and Daniel McCray to re- court, to the effect that the only question cover a tract of land, containing 62242 acres, involved in cause was one of boundary be---part of one-third of a league of land orig- tween the Washington and Allen surveys;" inally granted to Joseph Washington. The l he does not remember that the attention of


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