death of Mary Schubert was $330. The executor sold enough of the personal property to realize $45, with which he paid the funeral expenses of the testatrix.

Conclusions of law: Appellees contend that the effect of the order setting apart to the widow the homestead and exempt property was an adjudication of the title of such property, and vested the same in the widow, to the exclusion of her unmarried daughter. In this contention we do not concur. By the terms of the statute it was the duty of the court, by an order entered upon the minutes, to set apart, for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased, all such property of the estate as may be exempt from execution or forced sale by the constitution and laws of the state. Rev. St. art. 2046. If there be a widow and children, and the children be the children of the widow, the exempt property is to be delivered to the widow. Rev. St. art. 2049. The order of the court setting apart the exempt property is for the purpose of withdrawing the same from administration and turning it over to the person authorized under the statute to receive it for the use and benefit of the persons constituting the family of the deceased. Such order does not affect the rights of those owning the property. Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Woolley v. Sullivan, 92 Tex. 28, 45 S. W. 377, 46 S. W. 629.

It is contended for appellant, and argued with much ability, that upon the death of Mary Schubert the homestead, by virtue of the constitution, descended to and vested in appellant, she being the sole surviving constituent of the family of John and Mary Schubert, and their only child; and that the attempt on the part of Mary Schubert to will said homestead to others is ineffectual as against appellant. The constitution provides that: "Upon the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use and occupy the same as a homestead; or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same." Const. art. 16, § 52. We think the language, "shall descend and vest as other real property of the deceased, and shall be governed by the same laws of descent and distribution," has reference to the persons who are to take the homestead, and their respective interests. This language is not intended to prohibit one in whom the title to an interest in the homestead has become vested from disposing of such interest. Zwernemann v. Von Rosen

berg, supra; Woolley v. Sullivan, supra; Ford v. Sims (Tex. Sup.) 57 S. W. 20. Catherine Simms, upon the death of John Schubert, inherited, subject to the homestead rights, an undivided one-half interest in the 151-acre tract and an undivided one-half interest in 41% acres out of the 66%-acre tract described in the petition, and Mary Schubert took her community interest of an undivided one-half in the 151-acre tract and an undivided one-half in 41% acres out of the 66% acre tract, and the balance of said 66% acres, to wit, 25 acres, as her separate property; and by virtue of the will of Mary Schubert appellees are entitled to her interest in said lands. Woolley v. Sullivan, supra. There being no minor children, the homestead, upon the death of Mary Schubert, was subject to partition. Osborn v. Osborn, 76 Tex. 494, 13 S. W. 538; White v. Small (Tex. Civ. App.) 54 S. W. 915.

The evidence shows that the 151-acre tract, at the time of the death of John Schubert, was incumbered with a mortgage lien for $750, and that Mary Schubert paid the interest on said debt, and reduced the principal to $600, paying altogether $405. The interest of Catherine Simms in the 151-acre tract must be charged with one-half of $600, the balance due on said debt, and with onehalf of $405, paid out by Mary Schubert for the benefit of said tract of land; and each of said sums will draw interest at 6 per cent. per annum from the date of the death of Mrs. Schubert, to wit, November, 1898. The judgment of the trial court as to the 66%acre tract and the personal property is correct, and will not be disturbed. The judgment as to the 151-acre tract of land is reversed, and here rendered in accordance with this opinion.

Affirmed in part, and reversed and rendered in part.

On Rehearing.

That part of the judgment charging the land recovered by Catherine Simms out of the 151-acre tract with one-half of $405, the amount paid by Mrs. Schubert on the debt created by John Schubert in his lifetime upon said tract of land, is not supported by the findings of the jury. The record shows that Mary Schubert, after the death of John Schubert, paid out of her separate estate and from the rents of the estate of John Schubert set aside to her by the county court $405 on the mortgage existing against the land. The record does not show the amount paid by her out of her separate estate, or the amount paid by her out of the rents of the community estate. Catherine Simms was entitled to one-half of all rents actually collected from the community estate, less the amount, if any, expended in the support of the family. The interest recovered by appellant in the 151-acre tract of land should only be charged with the amount paid by Mary Schubert out of her separate estate in

the discharge of the debt on the land. The appellant's motion for rehearing is granted, and it is now ordered that the judgment of the trial court as to the 66%-acre tract of land be affirmed. That part of the judgment relating to the 151-acre tract is reversed, and here rendered awarding to the appellant, Catherine Simms, an undivided onehalf interest therein, the same to be charged with one-half of the debt evidenced by the note for $600, executed by Mary Schubert for the balance of the mortgage debt created by John Schubert during his lifetime. The issue relating to the amount of rents collected by Mary Schubert from the community estate and the issue relating to the amount paid by Mary Schubert out of her separate estate on the mortgage on the 151acre tract are remanded to be ascertained and adjudicated in accordance with this opinion.

The judgment of the trial court is affirmed in part, reversed and rendered in part, and reversed and remanded in part.

SAN ANTONIO & A. P. RY. CO. v. ADDISON.

(Court of Civil Appeals of Texas. Oct. 30, 1901.)

JUSTICES OF THE PEACE-APPEAL-BOND

SUFFICIENCY.

Under Rev. St. art. 1670, requiring that a bond on appeal from a justice shall be made payable to the appellee, a bond binding appellant in a certain sum, to be paid to the appellee or his certain executors or administrators, is not defective, as the use of the terms "executors or administrators" is mere surplusage.

Appeal from Lee county court; I. H. Bowers, Judge.

Action by W. O. Addison against the San Antonio & Aransas Pass Railway Company. From a judgment dismissing an appeal from a judgment of a justice in favor of plaintiff, defendant appeals. Reversed.

This suit was brought in the justice's court, precinct No. 1 of Lee county, to recover $130 damages to shipment of appellee's horses on appellant's railway from Pettus to Giddings. Judgment was rendered in justice's court for Addison for $100, and the case was appealed to the county court, in which the appeal was dismissed on motion of appellee for alleged defect in the appeal bond, and writ of procedendo ordered to the justice's court, from which appeal was taken to this court.

W. A. Morrison and E. A. Wallace, for appellant. Wm. O. Bowers, for appellee.

COLLARD, J. The only question in the case is, was the appeal bond sufficient? The appeal bond was in all things regular and in good form, except that it bound the appellant in the sum of $250, to be paid to W. O. Addison, "or his certain executors or administrators," etc. In the case of Nones v.

McGregor, 35 S. W. 1083, this court decided that an appeal bond from a justice's court, made payable to the appellees or their certain attorneys, was fatally defective, and could not be amended. There is a marked difference in the question in that case and that now before us. The statute requires that the bond be made payable to the appellee, and it was correctly held that it could not be made payable in the alternative to his attorneys. In case of the death of the appellee, however, the bond, though made payable to appellee, would become payable to his executors or administrators, as a legal consequence, and the use of such a stipulation in the bond would not vitiate it. The appellee in the case at bar not being dead, and having no executors or administrators, such representatives being impossible for a living man, the use of the terms "executors or administrators" during the life of the appellee would mean nothing, and would be meaningless surplusage, and would not vitiate the bond. It has been held that a bond of appeal more onerous than required by the statute is not void, and such stipulations will be treated as surplusage if otherwise good. Lands v. Heermann, 85 Tex. 1, 19 S. W. 885. The statute (article 1670, Rev. St.) requires the bond to be made payable to the appellee, conditioned that the "appellant shall prosecute his appeal to effect and shall pay off and satisfy the judgment which may be rendered against him on such appeal." It was held in Miller v. Sappington, 1 White & W. Civ. Cas. Ct. App. § 176, that a bond was good if conditioned to pay "any judgment," etc. See, also, Worley v. Hudson, 2 White & W. Civ. Cas. Ct. App. § 26.

The court below erred in dismissing the appeal, and the judgment is reversed, and the cause remanded for trial. Reversed and remanded.

NEW TRIAL-DEPOSITIONS-ILLEGAL TAKING. A motion for a new trial because of the illegal manner in which depositions were taken is not to be denied because no objection was made at the trial, where it appears by affidavit of the moving party that the facts were then unknown to him and his attorneys, and there was nothing on the face of the depositions indicating illegality.

Error from district court, Bell county; Jno. M. Furman, Judge.

Action between Harmon Doss and T. M. Soap. From the judgment, the former brings Reversed.

error.

A. J. Harris, for plaintiff in error. Geo. W. Tyler and W. S. Holman, for defendant in

error.

FISHER, C. J. We have carefully considered every assignment of error presented in

the brief of plaintiff in error, and conclude that none are well taken, except the thirteenth assignment. The court below should have granted the motion for a new trial on account of the manner in which the depositions of T. M. Soap were taken. Rice v. Ward (Tex. Sup.) 56 S. W. 748. Generally, objections to the depositions of the character urged in the motion for new trial should be made and considered either before or during the trial of the case; and presenting the question for the first time upon motion for a new trial, without some excuse for not urging it before, would be too late. But in this case the illegal manner of taking the testimony of the witness by deposition was not discovered by the plaintiff in error or his attorney until after the trial of the case. At least, the affidavit of the plaintiff in error accompany ing the motion makes a prima facie case as to the proposition that neither he nor his attorneys knew of the manner in which the testimony had been taken until after the trial of the case. There was nothing apparent upon the face of the depositions themselves, nor does it appear that any information was received by them prior to this time, that would excite their inquiry concerning the manner of taking the evidence of Soap; and, when they received information as to the illegal manner in which the testimony had been procured, they promptly acted, by calling the attention of the court thereto in the motion for a new trial.

For the error stated, the judgment is reversed and the cause remanded. Reversed and remanded.

SULLIVAN ▼. CITY NAT. BANK OF DALLAS.

(Court of Civil Appeals of Texas. Nov. 2, 1901.)

NEGLIGENCE-DANGEROUS PREMISES-CITY

ORDINANCE-INSTRUCTIONS.

1. Where the owner of a building abutting on a city sidewalk has obtained permission from the city to repair the building and lower the sidewalk, and under such permission has erected barriers to close the walk to the public, the measure of the owner's duty to a person employed by another to make the repairs within the barriers must be determined by the common law, and not by a city ordinance requiring openings in the sidewalk to be properly covered.

2. In an action against the owner of a building for injuries sustained by falling into a coal hole in the sidewalk, plaintiff, who was employed to make repairs on the building, requested the court to charge that, if defendant obtained a permit to reconstruct the sidewalk, the defendant was bound to do the work without needlessly exposing others lawfully upon the sidewalk to injury, and "if by the negligence of the defendant in making the coal hole and leaving it open, if in fact it was left open, the defendant did not exercise due care to prevent injury to others lawfully upon the sidewalk," and if the plaintiff was injured by falling into the hole while lawfully upon the sidewalk and exercising due care, then the jury should find for the plaintiff. Held, that the quoted

clause of the instruction was calculated to mislead, and also assumed that defendant was negligent, and hence was properly refused.

Appeal from district court, Dallas county; Richard Morgan, Judge.

Action by S. G. Sullivan against the City National Bank of Dallas. From a judgment Affor defendant, plaintiff brings error. firmed.

Crawford & Crawford, for appellant. McCormick & Spence, for appellee.

RAINEY, C. J. Plaintiff in error sued to recover of defendant in error damages for injuries received by falling into an opening or coal hole in the sidewalk on Murphy street, in the city of Dallas. Defendant pleaded a general denial, and specially contributory, negligence on the part of plaintiff in error. The cause was tried before a jury, and a verdict returned for the defendant. Judgment was entered accordingly, from which this writ of error is prosecuted.

Conclusions of Fact.

The bank owned and occupied a building at the corner of Main and Murphy streets, fronting on Main, and extending back along the line of Murphy street 100 feet. The bank maintained a cellar or opening under the sidewalk along Murphy street. Said opening had an outlet through the sidewalk on Murphy street, which was a circular hole, 18 inches or 2 feet in diameter. The covering for this hole was a cap weighing not more than 20 pounds. Just before the accident said building was damaged by fire to such an extent as to require it to be repaired, reconstructed in part, the sidewalk lowered, and the building painted. For this purpose the bank employed one Gill, and, acting for it, he employed contractors to do the work. Gill, on behalf of the bank, made a contract with one Brin to repair the building and lower the sidewalk. He also contracted with one Black to do the painting. For the purpose of lowering the sidewalk, the bank obtained permission of the city to do the work. At the time of the accident the work was being carried on, the old sidewalk had been torn up, and the new one was being laid. The opening was being reconstructed, which had been completed, except that the iron cylinder which was to receive the iron cap constituting the covering for the hole was not set, and could not be set until the sidewalk at said opening was ready for completion. that time Brin's employés were using the opening, through which a hose was passed for the purpose of conveying water from a hydrant in the cellar to the street on the outside, and there used in the preparation of mortar which was needed in repairing the building. The hole in the sidewalk was about 40 feet from Main street, and about 160 feet from Elm street. The sidewalks at the corner of Main and Murphy streets and at the corner of Elm and Murphy streets

At

were barricaded, and there were barrels of cement and lumber and gravel which took up one-half of the width of Murphy street adjacent to the sidewalk, and said sidewalk along the entire length of said bank building was closed to the public. The painting of the building was being carried on at the same time the repairing of the building on the inside was being done. Plaintiff in error was employed by Black, and was doing the painting on the outside wall of said building. While so doing he descended the ladder which he was using for the purpose of going after material for the further prosecution of the work. After descending, and in going around the ladder, he fell into the hole and was injured. It was a clear, bright day, and said hole could have readily been seen by looking. The plaintiff in error knew that the sidewalk was torn up and being replaced, and that the work of repairing was being done. He was warned that morning by Black, his employer, to be careful, as the sidewalk was torn up.

for any person, persons, firm or corporation to make any excavation of whatsoever kind in the city of Dallas, whether the same be in or along or near any sidewalk, alley, or highway of any kind, without placing proper guard rails and signal lights or other warnings at, in or around the same, sufficient to warn the public of such excavation, and protect all persons using reasonable care from accidents on account of same. Any violation of this article shall be punished as provided by article 209 of this chapter."

"Art. 209. Any person violating any of the provisions of this chapter, to which no other penalty is provided, shall be fined in any sum not exceeding two hundred dollars for each offense."

Conclusions of Law.

1. Plaintiff in error complains of that portion of the court's charge which instructs the jury that the ordinances of the city of Dallas "did not apply so long as said sidewalk was not open at that point to travel

"Art. 661. It shall be, and is hereby made, the duty of all the owners of property along any sidewalk to keep the same, together with the curbing and guttering, in good repair and free of obstructions of all kinds, except such as is permitted by this chapter. Any one failing to comply with this article, after three days' notice from the city engineer, shall be deemed guilty of a misdemeanor, and upon conviction in the city court shall be fined in a sum not exceeding fifty dollars; and each day any one thus fails shall be construed a separate offense. In case the city repairs any sidewalk, curbing or guttering the cost thereof shall be taxed up against the property and collected as other special taxes are collected."

"Art. 202. Whoever shall keep or leave open, or shall allow or suffer to be left or kept open, any cellar door, trapdoor, or the grating of any vault in or upon any sidewalk, street, thoroughfare or passageway, or whoever shall make, keep or maintain any uncovered opening in any sidewalk or footway, which it is his duty to maintain or repair, to become or continue so broken, uneven or out of repair as to endanger life or limb, shall be deemed guilty of a nuisance, and on conviction shall be fined not less than five dollars nor more than one hundred dollars.

"Art. 203. Whoever under lawful permission shall, for any purpose, dig or make any ditch, drain, excavation or hole in, across or under any street, sidewalk or other public place within this city, and shall not, with all reasonable dispatch, refill the same and fix such street, alley, sidewalk or place in as good condition as the same was when found, shall be deemed guilty of a nuisance, and on conviction shall be fined not less than twenty dollars nor more than one hundred dollars.

"Art. 204. That it is hereby made unlawful

this case, we are of the opinion that the court did not err in the particular complained of. The bank, as provided by the ordinances, had obtained from the city permission to make the repairs, and had erected barriers to close the sidewalk as a traveled way, and to warn the public of the situation. Plaintiff in error was working on the building within those barriers, and the measure of the bank's duty to him must be determined by the common law, and not by the ordinances of the city.

2. The court refused the following special charge requested by plaintiff, which action is complained of by plaintiff in error, to wit: "If you believe from the evidence that the defendant, through its agent, C. A. Gill, obtained a permit from the city of Dallas to reconstruct the sidewalk along Murphy street adjacent to the building owned and occupied by the defendant, then you are instructed that in doing the work necessary to reconstruct the sidewalk the defendant was bound to prosecute the work in such a way as not to needlessly expose others lawfully upon the sidewalk to injury; and if by the negligence of the defendant in making the coal hole and leaving the same open, if in fact it did leave it open, the defendant did not exercise due care to prevent the injury to others lawfully upon the sidewalk, and if you believe from the testimony that the plaintiff was injured by falling into the coal hole as alleged by him, and that at the time he received the injury he was lawfully upon the sidewalk, and was exercising due and reasonable care for his safety under all the circumstances, and was injured by falling into the coal hole while exercising due and proper care on his part, as heretofore explained to you, then he would be entitled to recover, and you will find for the plaintiff." This charge is not correct. That part of it read

ing as follows, "and if by negligence of the defendant in making the coal hole and leaving the same open, if in fact it did leave it open, the defendant did not exercise due care to prevent injury to others lawfully upon the sidewalk," assumes that the defendant was negligent in making the coal hole and leaving it open, if same was left open. If it could be said that the latter part of said clause limited the term "negligence" to the exercise of due care, still it was calculated to mislead the jury, its meaning being contradictory and confusing. The charge of the court as to the care imposed by law upon defendant was sufficient, in the absence of a correct charge on that point being requested.

There is no reversible error in the judgment, and it is affirmed. Affirmed.

CITY OF SAN ANTONIO v. SMITH et al.' (Court of Civil Appeals of Texas. Nov. 20, 1901.)

APPEAL WHEN PERFECTED-MUNICIPAL CORPORATIONS-EXEMPTION FROM GIVING BOND -TRANSCRIPT-TIME FOR FILING-FAILUREEXCUSE RULES OF COURT AS TO TRANSCRIPTS.

1. Where a city is not required to give bond on appeal from a judgment (Sp. Laws 1870, p. 283), an appeal by it is perfected under Sayles' Ann. Civ. St. art. 1388, when notice is given, so as to entitle appellee to affirmance of his judgment as provided by Id. arts. 1015, 1016, for failure of the city, without good cause, to file the transcript with the clerk of the appellate court within 90 days from perfecting the appeal.

2. Where a city failed to file a transcript of appeal within 90 days, as required by Sayles' Ann. Civ. St. art. 1015, the fact that the city intended to bring the case to the appellate court by writ of error was not sufficient reason to prevent the affirmance of the judg ment, under article 1016.

3. Where a certificate for affirmance of a judgment contains erasures, is not fastened together by tape or ribbon, and sealed over the tie with the seal of the court, the transcript fails to conform to the rules of the court, and will be subject to dismissal for such failure.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by R. O. Smith and others against the city of San Antonio. Judgment for plaintiffs, and defendant appeals. Affirmed, without reference to the merits.

Frank Wash, for appellant. M. W. Davis, R. P. Ingrum, Carlos Bee, and Ball & Fuller, for appellees.

FLY, J. It appears from the transcript which accompanies the motion to affirm on certificate in this case that R. O. Smith had sued the city of San Antonio, and on the 8th day of April, 1901, recovered judgment against appellant in the sum of $2,512.50. On May 25, 1901, appellant gave notice of appeal to this court. The court adjourned for the term on June 1, 1901, and on September

5th the motion to affirm the judgment on certificate was filed. Section 240 of the charter of the city of San Antonio (Sp. Laws 1870 p. 283) provides that it shall not be required to give bond in any action or suit, and appellant is placed thereby in the same category as other cities exempted by general statute from giving appeal bonds. It is provided in article 1388, Sayles' Ann. Civ. St., that, "in cases where the appellant is not required by law to give bond on appeal, the appeal is perfected by the notice provided for in the preceding article." Notice of appeal was given by appellant on May 23, 1901, and the appeal was thereby fully perfected. City of Hallettsville v. Long (Tex. Civ. App.) 28 S. W. 573.

More than four months had elapsed from the final adjournment of the trial court until the motion to affirm on certificate was filed, and appellee R. O. Smith was entitled to an affirmance of his judgment.

It is the contention of appellant in its motion for a rehearing that appellant did not intend to appeal, but expected to sue out a writ of error under its notice of appeal, and it is argued that, if appellant was compelled to perfect its appeal, it would be deprived of a valuable right,-that of having a year in which to sue out its writ of error. In article 1015, Sayles' Ann. Civ. St., it is provided that the appellant or plaintiff in error shall file the transcript with the clerk of the court of civil appeals within 90 days from the perfecting of the appeal or service of the writ of error. In the following article it is provided that, if the appellant or plaintiff in error shall fail to file the transcript as provided in the statute, it shall be lawful for the appellee or defendant in error to file his certificate for affirmance, and when that action is taken it is provided that "it shall be the duty of the courts of civil appeals to affirm the judgment of the court below, unless good cause can be shown why such transcript was not filed by the appellant or plaintiff in error." No reason has been assigned for a failure to file the transcript as required, except that appellant intends to bring its case to this court by writ of error. To do this it was necessary for appellant to abandon its appeal, which it undoubtedly had the right to do, but subject to the right of the appellee to have the judgment affirmed on certificate. Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482.

Because a city is relieved from the burden of giving a bond on appeal, it is not granted the power to violate all the other rules governing parties who are compelled to give bonds, and when it gave notice of appeal it became subject to the same requirements that govern the party who has perfected his appeal by giving a bond.

We desire, in this connection, to call attention to the manner in which the transcript in this case has been prepared. There are quite a number of erasures in the cer