shows that they sue as heirs of J. W. Hale. | the judgment of the court below, and are of This is a mistake. The citation does not state opinion it ought to be affirmed. to whom the note is payable.

Action to revive a dormant judgment by Samuel Samuelson and others against S. F. Bridges. Judgment for plaintiffs, and defendant appeals.

J. D. Bridges and Marshall Fulton, for appellant.

ACKER, J. Appellees, as heirs of A. W. Samuelson, recovered judgment against appellant on the 20th day of November, 1883, for the sum of $1,492, for money and effects belonging to said Samuelson at the time he died intestate, at appellant's residence, leaving his effects in the possession of appellant. No execution was issued on this judgment within the year, and it became dormant. On February 16, 1887, appellees brought suit on the dormant judgment, setting it out in the petition, and alleged that it was "a subsisting, valid, final, unappealed from judg ment, and a wholly unpaid debt against defendant, and that it was still owned and held by plaintiffs." There was prayer for judgment for the amount of the dormant judgment, interest thereon from its date, and costs of both suits. Appellant answered,

this appeal are the alleged errors of the court! in setting apart to appellee that portion of the lot upon which the husband of appellant, under whom the latter claims, had made valuable improvements, and in adjudging that appellant should pay appellee one-third of the rents of the property received by her. If the first judgment was rendered at a previous term of the court, then upon the adjournment the rights of the parties, as therein adjudicated, became fixed, and it was not in the power of the court, at a subsequent term, to do more than make such orders as were necessary to give effect to that judgment. White v. Mitchell, 60 Tex. 164. If upon the original trial it was decreed that appellee should on partition have her portion set apart to her from the south part of the lot, and should recover rents of appellant, and if the judgment now appealed from merely followed that decree, then the error, if error it be, would be in the foriner, and not in the latter, ruling. How this may be we cannot know from the transcript before us, but it would seem that a proper practice requires that, in cases of this character, not only the titles of the respective parties should be set-setting up the same defenses that were intertled upon the first trial, but also their respective rights and equities growing out of the receipt of rents and the construction of improvements by one or more of them should be in the same decree. It is hardly contem-swer stricken out, except the general denial, plated that there should be but one jury trial, which was then withdrawn by appellant. and upon the questions of fact presented by The trial was by the court without a jury, these conflicting claims either party would be and, it seems, proceeded regularly, notwithentitled to a trial by jury. But, however standing the defendant had no answer rethis may be, the first judgment is the founda- maining in the case, and resulted in judgtion of the second decree on partition suits, ment as prayed for by appellees. Without and we are of opinion that we cannot prop-making motion for new trial, this appeal was erly reverse the second unless we have the prosecuted. The court filed no conclusions, record of the first before us. It follows from and there is no appearance here for appeliees. what we have said that we feel constrained Appellant filed a motion to require A. O. to affirm the judgment without passing upon Cooley, attorney for appellees, to show by appellant's assignments of error, and it is so what authority he prosecuted the suit, to ordered. which the attorney made no written answer, but in answer to the motion offered proof of his authority, which was objected to by apBRIDGES v. SAMUELSON et al. pellant, upon the ground that no written an(Supreme Court of Texas. April 16, 1889.) swer to the motion had been filed. The obAUTHORITY OF ATTORNEY-REVIVOR OF JUDG-jection was overruled, and this ruling is as

MENT-COSTS.

1. Under Rev. St. Tex. art. 237, requiring motions to compel an attorney to show by what authority he prosecutes a suit to be in writing, under oath, the attorney is not required to file a written answer before proving his authority.

2. In an action on a dormant judgment, from which no appeal was taken, that judgment is con

clusive as to the defenses therein set up.

3. Under Rev. St. Tex. art. 3210, providing that dormant judgments "may be revived by scire facias or an action of debt, "in debt on a dormant judgment, and for costs paid out by plaintiffs in the original suit, it is proper to render judgment for the amount of the original judgment, with interest and the costs, and to make the last judg

ment bear interest from its date.

4. Under Rev. St. Tex. art. 1421, plaintiffs are entitled to costs in such case, but, even if they were not, that objection is unavailable, when raised for the first time on appeal.

posed in the original suit. Appellees excepted to the defenses pleaded, upon the ground that they were res adjudicata. The exceptions were sustained, and all of the an

signed as error.

While the statute (article 237) requires such motion to be in writing under oath, there is no requirement that the attorney shall file a written answer before he will be heard to prove his authority in response to the motion and notice.

We think the court

did not err in the ruling here complained of. It is contended that the court erred in sustaining the exceptions to appellant's answer. The defenses set up had been interposed in the original suit, and the judgment rendered in that suit, from which no appeal or writ of error was prosecuted, is conclusive of these defenses. Bullock v. Ballew, 9 Tex. 500.

It is also contended that the court erred in Commissioners' decision. Appeal from rendering judgment for the amount of principal and interest due on the original judg

district court, Mason county.

ment, and making the last judgment bear in- | In the issues made up under the direction of terest from its date, because the interest was the court, the plaintiff in error claimed that thereby compounded. Rev. St. art. 3210, the goods were his property, and now in. provides that dormant judgments "may be possession of Horton & Hays, as his "agents revived by scire facias, or an action of debt or consignees." The sheriff testified that brought thereon, within ten years after the when he made the levy he found the goods date of such judgment." This is an action in possession of Horton, who had them of debt upon the dormant judgment, and to in store, exposing them to sale in the usual recover the costs paid out by appellees on the course of retail trade. In order to show title original suit, and we think the court did not in himself, the claimant introduced in evierr in rendering judgment for the amount of dence an instrument in writing, of the body the original judgment, with interest, and the of which the following is a copy: "Whereas, costs paid by appellees thereon. Bullock v. H. Horton and A. P. Hays, under the firm Ballew, 9 Tex. 500. If the suit had been name of Horton & Hays, are doing business by scire facias to revive the judgment, then in the state of Texas, with one store in the the judgment should have been that appellees town of Decatur, and one store in the town have their execution. of Cleburne, said business being that of jewelry, and said firm is justly indebted to one J. C. Wilber for the purchase price of the stock now on hand in said stores, said Wilber residing in the city, county, and state of New York, said indebtedness being the sum of five hundred dollars; and whereas, said stock of goods is wholly insufficient in quantity and quality to meet the present and growing demands of trade at the places aforesaid, and neither of the said firms have the means or credit to meet said demand, in the way of replenishing said stocks: now, therefore, these

It is further contended that the judgment is erroneous in taxing costs of this suit against appellant. Appellees were the successful parties, and had the right to recover the costs. Rev. St. art. 1421. But, if this were not so, we are powerless to grant the relief asked, because appellant failed to call the attention of the trial court to the matter, by motion to retax the costs, or in some other manner. Unless some such proceeding is had in the court below, this court will not afford relief. Allen v. Woodson, 60 Tex. 653, 654. We are of opinion that the judg-presents are to show that for the purpose of ment of the court below should be affirmed.

STAYTON, C. J. Report of commission of appeals examined, their opinion adopted, and judgment affirmed.

WILBER V. KRAY et al. (Supreme Court of Texas. April 19, 1889.)

CHATTEL MORTGAGES-VALIDITY.

1. A chattel mortgage by which it is contemplated that the goods shall be exposed for sale at retail by the mortgagor in the ordinary manner is void, under Sayles, Ann. St. Tex. art. 65r.

2. Where a contract is on its face called a "chattel mortgage," and is registered as such, parol evidence is not admissible to show that it was intended to be something else.

3. A verdict generally "for the plaintiffs, " on an issue between an execution creditor and a claimant of the goods levied on, is sufficient. It is mere surplusage to state in the verdict the amount for

securing to the said Wilber that which we now owe him, and the further advancement of stock to us by him, we make and deliver to him the following, viz.: that is to say, we, the said firm, bargain and sell unto the said J. C. Wilber the following described personal property: All that stock of goods mentioned in Exhibits A and B, which are hereto attached, and made a part of this instrument; also all the stock which said firm may hereafter purchase from said Wilber,— said stock being situated in the towns aforesaid in Texas. That is to say, the said firm may sell said goods so purchased, and to be purchased, in their own name, rendering to said Wilber, at any time, upon demand, a true and perfect account of such sale or sales, and, after deducting the profits arising from said sales, to render and pay the balance to the said J. C. Wilber: provided, always, that the title in said goods shall rest in said Wilber until the said firm shall have paid all the purchase money, Under these conditions, the said firm shall be permitted to remain in quiet and peaceable possession of said goods until they make default in any of the terms of this mortgage, or, in the event that said stock should be threatened by any process of GAINES, J. The appellees, being judg- law from any third party, then the said Wilment creditors of one H. Horton, caused an ber shall be at liberty to take possession of execution to be levied upon a certain stock all said stocks, and dispose of the same acof jewelry, watches, etc., as the property of cording to his discretion, and pay himself the defendant in execution. The plaintiff in from the proceeds of said sale. This agreeerror delivered to the sheriff a claimant's ment shall continue and be binding for one oath and bond under the statute, which was whole year from the 14th day of March, A. returned to the district court of Johnson D. 1884." The instrument was signed by county, where a trial of the right of property Horton & Hays, duly acknowledged, and was had, which resulted in the judgment was registered as a chattel mortgage. It from which this writ of error was prosecuted. was evidently contemplated by this contract

which the claimant and his sureties are bound.

4. Where it appears that defendants in error were entitled to a larger judgment than they recovered, the judgment will not be reversed for errors in the proceedings.

Error from district court, Johnson county. Geo. D. Green, for plaintiff in error. Poindexter & Padelford, for defendants in error.

that the goods should be exposed for sale by retail in the ordinary manner, and the testimony shows that this was done from the time of its execution until the date of the levy. Hence, if the instrument under consideration is to be construed as a mortgage, it is void under our statute. Bank v. Lovenberg, 63 Tex. 506; Duncan v. Taylor, Id. 645; Sayles, Ann. St. art. 65r. The contract shows upon its face that it is to secure an existing indebtedness of $500; that it was to secure a further advancement of stock; and that Horton & Hays were to sell the goods, and pay Wilber the proceeds, less the profits. In other words, they were to pay him for the goods as fast as they were sold, retaining only the profits. That the relation of debtor and creditor was to be continued is shown by the provision that the title is to remain in Wilber until the said firm shall have paid all the purchase money, and by the further provision that, upon default, he should have the right to take possession and to dispose of the goods, and to "pay himself from the proceeds of said sale." The inventory annexed to the instrument showed the value of all the goods subject to it to be $1,794. The original indebtedness intended to be secured, as expressed in the deed, was but $500. Upon its face it is called a "mortgage," it is registered as a mortgage, and it is a mortgage. Parol evidence should not have been permitted to show the contrary. This conclusion renders it unnecessary to discuss the assignments of error in detail. The instrument being void, the plaintiff in error had no right to the property. If it had been a valid mortgage, the mortgagees being in the possession of the property, the claimant was not entitled to the remedy provided by statute for the trial of the right of property by tendering an oath and bond. Garrity v. Thompson, 64 Tex. 597.

one of them, the verdict shows beyond any controversy that the jury determined the issues in their favor. It was not necessary for the jury to find the amount for which the claimant and the sureties on his bond were bound, because this was fixed by law. But such finding can do no possible harm, and so much of the verdict may be treated as surplusage, and a good and sufficient verdict left standing. The claimant and his sureties were liable to have a judgment rendered against them for the value of the property,an amount largely in excess of that found by the jury. The court should have rendered a judgment upon the verdict against them for the value of the property, with legal interest thereon from the date of the bond, (Rev. St. art. 4843,) and 10 per cent. damages upon the amount claimed in the writ, that amount being less than the value of the property, (Id. art. 4841.) The fact that the judgment is for a less amount, namely, the amount claimed in the writ, with interest, costs, and damages, is not a matter of which the claimant and his sureties can complain. They still had the right to satisfy the judgment by returning the property within 10 days from the rendition of the judgment against them. Id. art. 4845. The uncontroverted evidence in the case showing that plaintiff in error had no valid claim to the property. the defendants in error were clearly entitled to a judgment for a larger sum than they have recovered. Under such circumstances, the judgment will not be reversed for errors in the proceedings. Bowles v. Brice, 66 Tex. 724, 2 S. W. Rep. 729, and cases there cited. It is therefore unnecessary to consider alleged errors of the court in the admission of evidence and in the charge to the jury. The judgment is accordingly affirmed.

MADDREY et al. v. Cox, Collector of Taxes.
(Supreme Court of Texas. April 19, 1889.)
MUNICIPAL CORPORATIONS-AID TO RAILROADS.
1. The provisions of act Tex. April 12, 1871, con-
power to make donations to railroad companies,
practically became a part of all subsequent char-
ters of cities and towns.

2. A town voted aid to a railway company, but afterwards refused to issue the bonds, and the company brought suit resulting in a compromise judgment, by which the company became entitled to the bonds, and they were accordingly issued. Held, that the validity of the donation cannot thereafter be questioned by a tax-payer.

But it is claimed the court did not submit the proper issues, and that the jury did not render the proper verdict. The value of the property, as shown by the sher-ferring on counties, cities, and towns, generally, iff's return, was $1,625.65, and the amount claimed in the execution was only $124.06, besides interest and costs; and the court charged the jury that, if they found the issue in favor of Kray & Co., to find for them the amount of their debt. The jury were also instructed, in another place, in the event they found that the goods were subject to plaintiff's levy, to say so by their verdict. The verdict is as follows: "We, the jury, find for the plaintiffs the amounts: $124.06 principal; $20.66 interest; costs, $5.60; goods levied on amounts, $1,625.62." The statute prescribes no form of verdict, and we do not see that a verdict generally "for the plaintiffs," or "for the defendant,' " would

not be decisive of the issues in favor of the party for whom a verdict was so found. The court having given two forms for the verdict to be returned in case the finding was for Kray & Co., and the jury having adopted

3. The extent to which it is proper to enlarge the limits of a municipal corporation is a question for the legislature, whose decision cannot be re

viewed by the courts.

4. Where the corporate limits are extended, the annexed territory will become, in the absence of legislation to the contrary, subject to taxation for all municipal indebtedness then existing.

Appeal from district court. Fannin county. Action to restrain the collection of municipal taxes, brought by P. B. Maddrey et al. against W. B. Cox, collector of taxes for the city of Bonham. There was final judgment for defendant, and plaintiffs appeal.

V. W. Hale and C. D. Grace, for appel- way company against the city of Bonham. lants. R. B. Semple, for appellee. Whether it was necessary or proper to bring within the limits of the municipal corporaSTAYTON, C. J. In the month of Janu- tion the lands of the appellants which they ary, 1873, under the act of April 12, 1871, the now seek to shield from that taxation imtown of Bonham, after a vote had been tak-posed on all other property within the city en as that act required, agreed to make a limits was a question addressed to the legisdonation of $26,000 in bonds to the Texas & lature, whose decision upon it is not subject Pacific Railway Company. The act incorporating the town of Bonham was amended by a special law approved April 1, 1873, (Sp. Laws 1873, p. 183.) That act changed the name of the corporation, and declared that it should be thereafter known as "The City of Bonham," and it extended the corporation limits. The last section of the amendatory act provided that "nothing herein contained shall be construed to alter, change, or impair any contract or obligation heretofore begun or made by the corporation of the town of Bonham." After the passage of the act of April 1, 1873, the railway company, having complied with its undertaking on which the bonds were to be executed, applied for the bonds, but the city refused to issue them, and a suit was brought, which resulted in a compromise judgment through which the railway company became entitled to bonds which were subsequently issued. In March, 1883, the proper authorities of the city levied a tax to pay the interest and create a sinking fund to meet the payment of the bonds at maturity, and the tax-collector was proceeding to collect it when appellants sued out an injunction to restrain him.

The grounds on which the injunction is asked are: (1) That the town had no power under its charter to make the donation to the railway company; (2) that the lands of appellants were agricultural lands removed from the benefits to be derived from municipal government, and therefore improperly brought within the limits of the nicipality; (3) that the lands of appellants were not within the corporate limits at the time the contract with the railway company was made, but were brought within by subsequent act amending the charter; that they were not residents of the corporation at the time the vote was taken to determine whether the donation should be made, and had no will in determining that question, and therefore were not liable for the tax. The injunction was dissolved on hearing upon its merits, and from the judgment making final disposition of the case in the court below this appeal is prosecuted.

It may be true that the special act incorporating the town of Bonham did not, in terms, empower the incorporation to make the donation to the railway company; but, under the act of April 12, 1871, such a power was conferred on counties, cities, and towns, generally, and this legislation practically became a part of the charters of cities and towns. Pasch. Dig. 7369-7384. In so far as the validity of the donation in question is concerned, that is conclusively settled by the judgment rendered in favor of the rail

to revision by the courts. Norris v. City of Waco, 57 Tex. 635. The same power which, in the first instance, may be exercised by the legislature to create a municipal corporation, fix its boundaries, and impose burdens on its inhabitants for municipal purposes, in the absence of some constitutional restraint, doubtless, may extend the boundaries of an existing corporation, without the consent, or even against the remonstrance, of a majority or all the inhabitants of the existing corporation or of the territory to be annexed. 1 Dill. Mun. Corp. § 185. When this is done, the indebtedness of the corporation continues, and persons within territory annexed will become, in the absence of legislation to the contrary, subject to taxation for all municipal indebtedness existing before annexation, as well as that afterwards contracted. Blanchard v. Bissell, 11 Ohio St. 96; Powers v. Commissioners, 8 Ohio St. 290; 1 Dill. Mun. Corp. § 185, and citations. On the other hand, the legislature could impose on those living within the old municipal limits the entire burden of taxation to meet indebtedness existing at the time of the annexation of contiguous territory, and relieve the inhabitants of the latter therefrom; but, in the absence of such legislation, it must be held that it was the legislative intention that all property subject to municipal taxation within the increased municipal limits should be subject to taxation to meet a municipal indebtedness, without reference to the time of its creation. It has been held, when the act of the legislature annexing additional territory to a municipal corporation provided that the annexed territory (a city) at the time of annexation should be taxed to meet such antecedent debts only as had been created by itself, that by subsequent act the legislature might subject property to a higher rate of taxation than was necessary to meet such indebtedness, even though the tax thus raised went to discharge indebtedness of the corporation to which attached, existing before annexation or consolidation was made. Layton v. New Orleans, 12 La. Ann. 515. When a contract was made by a person to do certain paving for a city, and subsequently other territory was annexed by an act of the legislature, which made no provision as to the liability of the property within the annexed territory to taxation to meet a part of the cost of the paving, the most of which was done after annexation, and without the added territory, it was held that a subsequent act relieving the annexed territory from taxation to meet the cost of paving was valid. U.S. v. Memphis, 97 U. S. 289. In disposing of the case the court said: "It is true the act of