A. T. Folsom, of Sanderson, for appellants. HARPER, C. J. Mrs. Maggie Anderson, survivor in community of the estate of D. L Anderson, and Ella May Anderson, only surviving child and heir, and Joe Kerr brought this suit in the district court of Terrell county, Tex., for three purposes: (1) Temporary injunction restraining the constable from levying execution upon the goods, lands, etc., of defendants issued out of the county court of Maverick county; (2) to declare said judgment void; and (3) to permanently enjoin issuance of further executions by the clerk of said county court of Maverick county by virtue of said judgment. The judgment sought to be set aside is as follows: A judgment of the county court did not appear void on its face as having been rendered and the cause heard in vacation, where, al- "David E. Hume v. D. L. Anderson et al. though it recited a hearing had in vacation, and No. 413. In the County Court of Maverick that pursuant to said hearing the court "con-County, Texas, October Term, 1917. On the cluded" the plaintiff should recover, and fur- | 19th day of October, A. D. 1917, during a regther concluded that such judgment should be ular term of this court, the plaintiff, David E. entered at the succeeding regular term, it fur-Hume, appealed in person and moved the court ther recited that at the succeeding regular term to enter judgment in his favor by reason of the court, "upon consideration of the plead- the following circumstances, which the court ings * and the evidence heard on" the found in fact existed, to wit: At the July prior date during vacation, “concluded" plain- term, 1917, of this court this case was regutiff was entitled to recover. larly called for trial, and both parties duly appeared in person, and defendant D. L. Anderson and Joe Kerr, by attorney, and the following agreement was entered into and approved by the court, to wit: 3. JUDGMENT 461(1)-PRESUMPTION IN FAVOR OF JUDGMENT ALLEGED TO HAVE BEEN RENDERED IN VACATION. In suit to enjoin enforcement of judgment, recitals that the court, at a regular term, considered the evidence heard in vacation, do not preclude the presumption that sufficient other facts were proved to sustain the judgment, against objection that cause was heard in vacation. "David E. Hume v. D. L. Anderson. No. 413. In County Court Maverick County, Texas, July Term, 1917. In the above entitled and numbered cause it is hereby agreed by and between plaintiff and defendant, defendant, Anderson, being herein represented by Ben V. King, his attorney, that this case will be called for trial and tried within thirty days from and after July 16, 1917, subject, however, to any legal excuse for a postponement as would be applicable under the rules of law governing such cases, in the discretion of the court. The parties hereto agree that the records and minutes of this court may show said trial and proceedings as had at a regular term of said court, and that no objections or exceptions will be taken or raised in 'this court or any appellate court relative or pertaining to the question of said trial being had in vacation. "It is understood, however, that their agreement shall in no wise be accepted or construed as a waiver of defendant's bills of exceptions to the action of the court in overruling defendant's plea of privilege or permitting said plea of privilege or alleged waiver thereof, being construed or contested in the absence of a controverting plea, under oath, being first filed by plaintiff. Witness our hands at Eagle Pass, Hume, Plaintiff, D. L. Anderson, Defendant, by Tex., this 18th day of July, 1917. David E. Ben V. King, His Attorney. Approved by me this 18th day of July, 1917. E. H. Schmidt, County Judge, Maverick County, Texas.' "On August 16, 1917, during vacation (notice of this setting having been given plaintiff and defendant's attorney), the judge of this court (216 S.W.) The only question urged by appellant is that the judgment of the county court of Maverick county is void. [1, 2] The exact point urged is that it affirmatively appears from the face of the judgment that the hearing was had and the judgment of the court as entered was rendered in vacation August 16, 1917, and, the county court not being authorized to hear causes of action and render judgments outside of regular terms, the judgment so rendered is void. called the case for trial as contemplated by the agreement, and the plaintiff, David E. Hume, appeared in person and was ready for trial, and the defendants appeared by their attorney, Judge Ben V. King, and, not being ready for trial, asked a postponement, which the court overruled, and defendants' attorney retired from the room and was not present and did not participate in the trial. The court heard the pleadings and the evidence and concluded that plaintiff was entitled to judgment against defendant D. L. Anderson for $251, with interest thereon at the rate of 6 per cent. per annum from October 19, 1917, and all costs, It needs no citation of authorities to supand the court concluded that such a judgment port this proposition of law, but the question should be entered at the following October for determination for the trial court, and term, 1917, of this court. Thereafter, on the 19th day of October, 1917, during a regular likewise this court, is: Does the judgment term of this court, the case was called, and pleaded upon its face sustain the contention, the plaintiff, David E. Hume, duly appearor has plaintiff by his pleadings set up facts ed in person, but the defendant D. L. Ander- to be shown by the face of the record in this son, though his answer had long since been filcase (county court of Maverick county) ed, failed to appear either in person or by at- which would, if introduced, show the judgtorney, and the court, upon consideration of ment sought to be set aside to be void? Bathe pleadings, the agreement hereinbefore set ker v. Crosbyton South. P. Ry. Co., 107 Tex. out, and the evidence heard on August 16, 1917, 566, 182 S. W. 287. The only thing we have as hereinbefore explained, concluded that plaintiff was entitled to judgment against defendant to determine the question by is the judgment for $251, with 6 per cent. interest per annum itself. The question is to be answered by the from October 19, 1917, and all costs of suit. recitals in the judgment. It recites an agreeIt is therefore ordered, adjudged, and decreed ment in writing entered into and approved by the court that the plaintiff, David E. Hume, by the judge, at a regular term of the county do have and recover of and from the defend-court, to try the case in vacation, that the ant D. L. Anderson and Joe Kerr the sum hearing was had August 16, 1917, which was of $251, with 6 per cent. interest per annum at a date when the county court of that thereon from October 19, 1917, and all costs county had no term, and that pursuant to of suit, and that execution and all other writs said hearing the court concluded that the issue that may be necessary to carry their judgment into execution." plaintiff should recover against one of the defendants, and further concluded that such The grounds pleaded for declaring the judgment should be entered at the succeed above judgment void are: ing October term of court. If there had been no other thing done relative to the judgment First, that the money for which the judg- as entered October 19, 1917, but to have the ment was rendered was held by D. L. Ander- clerk enter it upon the minutes of the court, son as sheriff under order and judgment of it, such judgment, would have been a nullity the district court, wherein one Villareal was (Hodges v. Ward, 1 Tex. 244; Hardware Co being prosecuted for its theft from Bilboa, and bringing same into this state; that said. Perry et al., 88 Tex. 468, 27 S. W. 100), but its recitals further say: Villareal had been prosecuted and convicted, had appealed, and that defendant D. L. Anderson, as sheriff, had by order of the court duly entered as provided by statute, been commanded to retain the identical money in his possession until the final disposition of the case, to be used as evidence in case the cause was reversed for a new trial; that Hume knew these facts, and, notwithstanding his knowledge, fraudulently procured the county judge of Maverick county to enter said judgment. Second, because of the facts recited in the judgment it appears that the case was tried in vacation; therefore the judgment entered is void. The petition in this proceeding was presented to Hon. Walter F. Jones, special judge in term time, and after hearing evidence the temporary writ of injunction was refused, and from the order refusing the writ the case is appealed. * * * "On October 19, 1917, during a regular term of this court, the case was called, and plaintiff * duly appeared, and the court upon consideration of the pleadings, the agreeconcluded that plaintiff ments, etc., was entitled to recover, etc. [3] The fact that it recites that the court considered the evidence taken in the hearing in vacation does not preclude the presumption that sufficient other facts were proved to sustain the judgment. Chapman v. Sneed, 17 Tex. 428; Delaware Ins. Co. v. Hutto, 159 S. W. 73. Besides, this record discloses that the court heard other evidence when the case was called for trial at the October term. True, it recites that at the hearing in vacation the court "concluded" that plaintiff should recover, but, if we could construe the term to mean that he then, as judge, rendered his judgment, we are confronted with the further recital that in term time he again | larities such as an authorized statement of a "concluded" that plaintiff should recover; juror as to value, when it can certainly be said so, if the use of the term means the same as that such matters affect only the amount of the "rendition of judgment," in the absence of verdict, are not ground for reversal, in the aba showing that no such proceeding took place sence of any claim the verdict is excessive. in open court at the regular term as in this 3. APPEAL AND ERROR 1078(5)-CLAIM NOT case, the record lacks that affirmative proof from plaintiff which is required before he can have the judgment declared void because rendered in vacation. BROUGHT FORWARD IN BRIEF IS ABANDONED. trial that the verdict was excessive, not being Claim of appellant in its motion for new brought forward in its brief, is to be considered abandoned. OF JUROR; DISCRETION OF THE COURT. In condemnation proceedings, refusal of motion for new trial of condemnor on the ground that a juror concealed upon examination on voir dire his preconceived notions and condemned was not an abuse of discretion, ideas as to the value of the land sought to be where it appeared merely that such juror knew at the time that he had been authorized by another party to pay $750 per acre for land similarly situated. [4, 5] The record now before this court shows affirmatively that the county court had jurisdiction of the cause, that its judg-4. EMINENT DOMAIN 224-CONCEALED BIAS ment was rendered and entered during a regular term of court, and, though the record does not show affirmatively that it had service or that the defendants answered, one of which was necessary to give jurisdiction of the person of the defendants, such judgment is not void for that reason (Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876; San Antonio U. & G. R. Co. v. Hales, 196 S. W. 903); for, in the absence of evidence that they were not served, it will be presumed that they had notice or were present at the trial. But in this we are not left to presumption; for at the hearing before the trial court before passing upon the application for a temporary writ, it is in testimony that their answers were on file. That the moneys sued for were in the custody of another court was a matter of defense which should have been pleaded and urged in the court of Maverick county, and could not render the judgment void. Finding no error, the order refusing the temporary writ is affirmed. Appeal from Dallas County Court; T. A. Work, Judge. Condemnation proceeding by the Dallas Power & Light Company against Walker G. Edwards and others. From judgment rendered, the company appeals. Affirmed. Templeton, Beall, Williams & Callaway, of Dallas, for appellant. Cockwell, Gray, McBride & O'Donnell, of Dallas, for appellees. RASBURY, J. This is a proceeding by appellant in the exercise of the right of eminent domain possessed by it to condemn to its use a plat of ground 25 feet square out of an DALLAS POWER & LIGHT CO. v. ED- 8-acre tract owned by appellees upon which WARDS et al. (No. 8226.) to construct a steel tower, from which to string its wires for the transmission of elec (Court of Civil Appeals of Texas. Dallas. Nov. tricity, and to acquire an easement over and 22, 1919. Rehearing Denied Dec. 20, 1919.) 1. EMINENT DOMAIN 224-STATEMENT OF JUROR, AS TO OFFER MADE FOR SIMILAR LAW NOT GROUND FOR NEW TRIAL. In proceedings to condemn a 25-foot square plat of ground for steel electric transmission line tower and for easement for wires, that a juror had stated in the presence of other jurors, during the jury deliberations and before verdict, that he had been authorized to offer for similarly stiuated land $750 per acre, held not such misconduct that refusal of new trial therefor constituted abuse of discretion under Vernon's Sayles' Civ. St. 1914, art. 2021. across the entire tract for its wires. The proceeding was referred in the usual way to commissioners who reported. The report was objected to by the appellees on the ground that the amount awarded for the land and easement was inadequate. The issue of the amount of damages was in turn referred to a jury, which returned a verdict for $500. Judgment followed the verdict. The matters presented for review on appeal are not contained in the motion for a new trial, but are reflected in a bill of exceptions taken after the court had overruled the motion for a new trial and the appellant had given notice of appeal to this court. The bill disclosesbriefly and in substance the following facts: L. O. Pyron was among the jurors who sat in the trial of the case, and, in answer to questions propounded by counsel for appel. lant, under oath denied any knowledge of the (216 S.W.) ground that it was the last day of the term and appellees' attorney was not present, and that the motion would probably be overruled, but that he would file same if agreeable to appellees' attorney, but would not do so in his absence or without notice to him. facts involved in the issue to be tried or any blas or prejudice for or against either party, and pledged himself, if chosen, to fairly and impartially try the issues on the evidence adduced and the charge of the court. Relying upon such statements and believing the juror to be fair and impartial, counsel [1] The first assignment is the basis for accepted him. Upon the hearing of appel- the claim that the facts set out in the second lant's motion for a new trial, it was develop-motion for a new trial disclose such misconed that the juror Pyron, during the delibera-duct on the part of the juror Pyron as wartions of the jury and before a verdict had ranted the granting of a new trial, and that been reached, in the presence and hearing of the court in refusing to consider same and the other jurors, stated: denying appellant a new trial abused the discretion vested in him by article 2021, Vernon's Sayles' Civil Statutes. "That he had been authorized by another person to offer one Woods, the owner of some overflow lands some two miles south of the city of Dallas, $750 per acre for a strip of the same, but had never submitted said offer to Woods; and that if he succeeded in buying the same he was to be allowed to use a part of it as a cow pasture in connection with his dairy." H. D. Haskins, also a juror, testified that he heard the statement made by Pyron, and that it probably influenced him in determining the amount of damages to be awarded, inasmuch as Pyron was older than he and had had more experience in dealing in lands. Haskins further testified that he was originally in favor of awarding $250 in damages, but finally agreed to $500, to which all the other jurors assented, and that he rendered such verdict upon the evidence given by the witnesses and the law given by the court. Another juror, W. D. Davis, testified that he heard Pyron make the statement detailed, but that it did not influence him, and that he was governed solely by the evidence given by the witnesses and the law given by the court. We have reached the conclusion that the court did not abuse its discretion in the respect stated. The view of this court on such matters found recent expression in Andrews Lumber Co. v. Missouri, Kansas & Texas Ry. Co., 158 S. W. 1194. In that case a witness, whose expenses were paid by the defendant while in attendance upon court, and who ac companied a juror to his home pending adjournment of court and before verdict, said to the juror that another witness, for reasons detailed, had lied in testifying before the jury to a state of facts which would have sustained a verdict for plaintiff. Both juror and witness agreed that their discussion of the case should be kept secret. The trial court concluded that the facts which we have briefly recited did not constitute such misconduct as to warrant a new trial. The case was appealed, and the contention made in this court that, when the trial court has proceeded under article 2021, his action is conclusive. With that contention this court differed and held in effect that the action of the trial court was reviewable. The case reached the Supreme Court, which, through the agency of the Commission of Appeals, reversed our holding. 206 S. W. 823. If we correctly interpret the opinion of that tribunal, it held, not that the holding of the trial court could not be reviewed, but that the facts held by us to constitute misconduct did not, in its opinion, do so. As authority for reversing our decision, the Commission of Appeals relied upon H. & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606. The rule announced in that case, as a guide for determining whether the court had abused its discretion in refusing a new trial because of alleged misconduct, is: Did the unauthorized communication made to the jurors leave it "reasonably doubtful" as to its effect upon the verdict? That suit was one to recover damages for personal injuries (137 S. W. 729), and the facts alleged as constituting misconduct were that As indicated, the forgoing facts were not contained in appellant's motion for a new trial, but were developed upon the hearing of that motion while the jurors were being examined upon other issues raised in the motion and was the first time that counsel for appellant was cognizant of the statement of the juror Pyron. The hearing on the motion at which said facts were elicited commenced at 11 o'clock a. m. and continued until 12 o'clock m., at which time the court passed the motion until the following day at 11 o'clock a. m., at which time further argument was heard and the motion overruled. At about 3 o'clock p. m. of the same day, in the absence of appellees' attorneys and after the court had noted appellant's appeal and granted it 90 days in which to make up statement of facts and bills of exceptions, appellant prepared and presented another motion for a new trial alleging gross misconduct on the part of the jury; the gravamen of the charge being the receiving and considering of the statement of the juror Pyron already detailed. The motion was presented to the judge of the trial court, who refused to allow it to be Such argument or communication to the filed and refused to consider same, on the jury was held to be one that did not leave "One or more of the jurors stated that the plaintiff ought to have a verdict for $15,000, because the lawyers would get half." It "reasonably doubtful" as to the effect it excessive. Railway Co. v. Boozer, 70 Tex. had upon the verdict, and as a consequence 530, 8 S. W. 119, 8 Am. St. Rep. 615; Houston the trial court did not abuse its discretion | Elec. Co. v. Pearce, 192 S. W. 558. Appellant in refusing a new trial. It thus appears that did in its motion for new trial charge that the it is a matter of weighing the testimony, in verdict was excessive, alleged to be the result the trial court, this court, and the Supreme of passion and prejudice, and not because of Court, with the attendant varying impression it may make on each court. As a consequence, and in view of the facts disclosed in the cases cited, we are constrained to hold that the trial court did not abuse its discretion. We are unable to see that the statement of Pyron in the instant case can be said to have exercised greater influence on the verdict of the jurors than did the statements in the cases cited. A number of expert witness es testified to the value of the land sought to be condemned. These witnesses knew the value of the land, and it is reasonable to suppose that the jury were controlled by such evidence rather than by the chance statement of Pyron. In the cases cited the statements to the jurors were in the one case confidential and insidious, the effect of which was difficult to estimate, while in the other it was obviously calculated, if considered at all by the jury, to increase the verdict. [2, 3] While we have discussed the issue on its merits, it may further be said that the assignment does not present ground for revers. al for the reason that it is not claimed that the verdict of the jury was excessive. Incorrect charges as to the measure of damages, improper testimony, or other irregularities, such as the unauthorized statement of the juror Pyron, when it can certainly be said that such matters affect only the amount of the verdict, are not ground for reversal, in the absence of any claim that the verdict is the statement of the juror Pyron. The claim, however, was not brought forward in the brief, and is to be considered abandoned, even if the ground set out in the motion would cover Pyron's action, which is obviously doubtful. [4] The second and third assignments form the basis of the further contention that the court abused its discretion in refusing appellant a new trial on the ground that the facts adduced on trial disclosed that the juror Pyron concealed from appellant upon examination on voir dire his preconceived notions and ideas as to the value of appellees' land which was the one issue in the case. It will not be denied that litigants are entitled to fair and impartial jurors, and that it is. the duty of prospective jurors to disclose on examination any convictions on the issues to be tried which would disqualify them as such. At the same time, whether the juror Pyron, because he knew at the time he was selected that he had been authorized to pay $750 per acre for land similarly situated to that sought to be condemned, was not a fair and impartial juror, was as much a matter within the discretion of the trial court as was his misconduct while serving as a juror, and for which reason we are constrained also to hold that there was no abuse of the court's discretion in that respect. The judgment is affirmed. |