Volume 263 — South Western Reporter

<p>Appeal from District Court, Gillespie County; J. H. McLean, Judge.</p> <p>Peter Kleek was convicted of libel, and he appeals.</p>

<p>Appeal from District Court, Wichita County; W- B. Scott, Special Judge.</p> <p>Action-by J. W. Ferguson against C. H. Tipps and others. From judgment overruling plea of privilege of defendant named and another, they appeal.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by R. B. Cook against B. B. Loughry. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Lubbock County Court; P, F. Brown, Judge.</p> <p>Action by P. O. Brock against Sam Dane and another and Cullum Bros., as garnishee. From a judgment quashing writ of garnishment, plaintiff appeals.</p>

B. Hall, Judge. Suit by L. O. Isham and others against B. F. Senter and others. Judgment for plaintiffs, and defendants appeal. This was a suit by appellees, children and heirs of W. O. Isham, deceased, against B. F. Senter and Bill Senter to cancel a deed executed by said W. 'o. Isham June 22, 1920, conveying certain land in Rains county to said B. F. Senter.

<p>Appeal and error <§=>20 — Justices of the peace <§=>141 (4) — Appellate court has no jurisdiction, in absence of jurisdiction in county court and justice court.</p> <p>An action for $345.35, being beyond jurisdiction of a justice court, the county court acquired no jurisdiction on appeal, and appellate court acquired no jurisdiction on appeal from the judgment of the county court.</p>

<p>Appeal from District Court, Tarrant County; H. O. Gossett, Judge.</p> <p>Suit by C. E. James against J. R. Dagow. Judgment for plaintiff, and defendant appeals.</p>

<p>Process <§=>34 — Citation to which was attached copy of petition held sufficient.</p> <p>Under Rev. St. art. 1852, requiring citation to state nature of plaintiff’s demand and requisites prescribed in art. 2180, attaching copy of petition to citation was sufficient.</p>

<p>1. Costs ©=>264 — Motion to recall mandate and retax costs at same term at which case decided not made too late.</p> <p>Appellant’s motion to recall mandate and then retax costs, made at same term of court at which case was decided, held not made too late.</p> <p>2. Costs ©=5254(5)— Cost of transcript of evidence in narrative form held properly taxed.</p> <p>Cost of transcript of evidence in narrative form held properly taxed in absence of request ■for transcript in question and answer form under Vernon’s Sayles’ Ann. Civ.’St. 1914, arts. 1924, 2070, a,nd article 1925 as' amended by Acts 36th Leg. 3d Called Sess. (1920) p. 8S (Vernon’s Ann. Civ. St. Supp. 1922, art. 1925).</p>

R. Warren, Judge. Action by E. W. Crosby against J. L. Lancaster and others. Judgment for plaintiff, and defendants appeal. Appellee resided in Gilmer, but on the night of December 28, 1922, was in Big Sandy for the purpose of taking a train over the Texas & Pacific Railway Company’s line of railway to Dallas, where his wife was sick.

Error from District Court, Fannin County; C. A. Wheeler, Special Judge. Suit by the First National Bank of La-donia and another against P. T. McDonnold and others. From judgment against named ‘defendant and another, he brings error. By an instrument dated November 27, 1920, purporting to be an absolute deed, plaintiff in error P. T. McDonnold, and his wife, conveyed 50 acres of the J. H. Lara-bee survey in Delta county to G. F. McDon-nold.

<p>1. Mortgages <©=338(2) — Quality of proof necessary to establish deed absolute as mortgage, stated.</p> <p>In order to establish a deed absolute as a mortgage, proof must be of such character as to satisfy the conscience of the court that the relief prayed for should be granted.</p> <p>2. Mortgages <©=338(1) — Evidence held to establish deed absolute as mortgage.</p> <p>Evidence held sufficient to support finding that deed absolute was intended as mortgage.</p> <p>3. Mortgages <©=332(5) — Indebtedness shown as basis for claim deed absolute intended as mortgage.</p> <p>In order to establish a deed absolute as mortgage it is incumbent on grantors therein to show indebtedness owing to grantee at time or thereafter though evidence of such indebtedness need not be in any particular form, and an agreement by grantee to assume obligations of grantors constituting lien on the land was sufficient to serve as basis therefor.</p> <p>4. Mortgages <§=3608l/2 — 'Tender of amount of alleged debt not prerequisite to defense that deed absolute intended as mortgage.</p> <p>In action of trespass to try title where defendants alleged the deed on which plaintiff relied was intended as a mortgage, a tender by them of the amount of the debt secured held not a prerequisite to their right to urge such defense.</p> <p>5. Subrogation <©=>23(2) — Grantee in deed intended as mortgage as security for liens paid, held entitled to foreclose under doctrine of subrogation.</p> <p>In action of trespass to try title wherein defendants alleged that deed relied upon by plaintiff was intended merely as security for funds advanced by him to pay debt constituting lien on land, plaintiff held entitled under doctrine of subrogation to establish and foreclose such lien after determination that deed was mortgage.</p>

<p>Appeal from District Court, Wichita County; E. W. Napier, Judge.</p> <p>Action by the Southwest General Electric Company against the Nunn Electric Company. Erom dismissal of suit on exception to petition, plaintiff appeals.</p>

<p>Appeal from District Court, Eastland County; E. A. Hill, Judge.</p> <p>Action by J. L. Chapman, Commissioner of Insurance and Banking, and others, against H. P. Jackson, who filed a cross-action against the Guaranty State Bank of Eastland and another. Judgment for plaintiffs and for defendant against named cross-defendant, and defendant appeals.</p>

<p>Appeal from Potter County Court; Sam B. Motlow, Judge.</p> <p>Suit by Joe J. Mickle and another against Walker D. Hines', Director., General of Railroads, and others. From a judgment of dismissal, plaintiffs appeal.</p>

Schenck, Judge. Suit by J. L. Chapman, Banking Commissioner, against H. A. Leaverton. IProm order and judgment sustaining defendant’s general demurrer to plaintiff’s petition to compel a disclosure by the defendant of the facts with reference to an alleged fraudulent sale by defendant, the plaintiff appeals.

<p>Appeal from District Court, Burnet County ; J. H. McLean, Judge.</p> <p>Action by the Farmers’ State Bank of Bertram against Lee R. Barton and another. Judgment for plaintiff against defendant named, and he'appeals.</p>

Action by J. H. Wilson against the Texas Midland Railroad. Judgment for plaintiff, and defendant appeals. On August 12, 1921, appellee was working for appellant as a member of a crew engaged in switching cars at Greenville.

<p>Appeal from District Court, Orange County; A. D. Lipscomb, Judge.'</p>