Appeal from district court, Clay county; A. H. Carrigan, Judge.

Action by J. W. Norris against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Stanley, Spoonts & Thompson, for appellant. Templeton & Patton, for appellee.

HUNTER, J. This suit was filed in the district court of Clay county by J. W. Norris, the appellee, on March 9, 1891, to recover from appellant damages for alleged negligence in the transmission of a message, and in the failure to deliver the same. Said message, as delivered to the appellant's operator at Paris, was as follows: "Paris, Texas, November 16, 1890. To J. W. Norris and Wife, Henrietta, Texas: Come on first train. John Norris is dying. Jim Chancellor, Deputy Marshal." This message was delivered to appellant at Paris between 8 and 9 o'clock a. m. of the day of its date. J. W. Norris and wife were the father and mother of Robert Norris, who was confined in the hospital department of the county jail at Paris, in the custody of the United States marshal, for some offense against the laws of the United States; and his father and mother knew that he was there so confined in the custody of the United States marshal. The receiving agent or operator at Henrietta took the message from the wire as addressed to "J. W. Nortys and wife." The message was not a repeated message, but the company neither pleaded nor proved any excuse or reason for the mistake. It simply relied upon a condition printed upon the message blank that it would not be responsible for such errors unless the message was repeated. It appears that the operator and messenger both having tried diligently to find J. W. Nortys, and having failed, a service message was sent back to Paris at 4 o'clock of that day notifying Chancellor that J. W. Norris could not be found in Henrietta. The addressee, Norris, resided within 300 or 400 yards of the appellant's office in Henrietta, and had for several years, and was well known, though a day laborer, and was at home all day that day, it being Sunday. This service message, it seems, was delivered to Chancellor at about 4 o'clock in the afternoon of that day, and he paid 40 cents for it, as he did also for the message he sent. This service message is not copied in the record, and we are unable to give its contents literally, but the witness Jim Chancellor speaks of it as follows: "I paid forty cents for a return message notifying me that J. W. Norris and wife, the persons to whom I had sent the message, could not be found in Henrietta, and that the message was undelivered." Robert Norris died about 1 o'clock p. m. that day, and was buried about 5 o'clock p. m. of the same day. The body could have been held out for 48 hours, and the marshal would have done so if the fa

ther and mother had sent him a message requesting it. The mistake of calling the person "John" instead of "Robert" was made by Chancellor. He had known him as "John," and always called him "John." He noticed the mistake in his name after he had written it, but says he did not have time to change it. He told the agent at Paris that he expected an answer, and to send it to him at the jail. The prisoner was about 20 years old, and, realizing his dying condition, requested Mr. Chancellor to let his parents know of it. If the message had been delivered to his father, he would have known it was meant for him, and that it referred to his son Robert, and would have wired the marshal to hold the body, if dead, until he arrived; and he and his wife would have gone on the railroad train Monday morning at 6:30, and would have arrived in Paris on that day about from 4 to 7 o'clock p. m., and he would have brought his son's body to Henrietta for burial. He learned of the death of his son from the Dallas News on November 19th, and also received a letter from Paris that his son was dead. He then went to the telegraph office at Henrietta and inquired if any telegram had been sent him, and the agent then gave him the "Nortys" message. The mental suffering of the father and mother at being deprived of seeing the body of their son before his burial, and of performing the last rites and duties their deceased offspring, were sufficient to warrant the verdict of $1,000. The only evidence of negligence on the part of appellant's agents in the transmission of the message was the error made in the spelling of the addressee's name, -"Nortys" for "Norris."

This case was heard before this court on appeal by the telegraph company, and was reversed on the 28th day of March, 1894, but the opinion was not reported. No mandate from this court was asked for or issued until the 24th day of February, 1900, when, upon the application of Norris, it was issued, and was filed in the district court of Clay county on the 26th day of February, 1900; and on the 4th day of March, 1900, the plaintiff below filed an amended petition setting up as an additional act of negligence the notice given Chancellor by the service message that the original message had not been delivered because addressees could not be found, whereby said Chancellor immediately buried the body of Robert Norris, when, if such service message had not been delivered, he would have held the body until he received an answer to his original message. Defendant excepted to this amended pleading upon the ground that it alleged a new cause of action, and was barred by the statutes of limitations of one, two, and four years, which exceptions were overruled, and this action of the court is assigned as error. In both pleadings the injury is alleged to have been produced by negligence in failing to correctly transmit and deliver the message,

and this was the only issue submitted to the jury as a ground of recovery; hence the error, if any, was harmless. See Railway Co. v. Johnson (Tex. Civ. App.) 34 S. W. 186, and authorities there cited.

The six years intervening between the reversal of the judgment by this court and the taking out of the mandate and filing the amended pleading did not necessarily bar the plaintiff's right to prosecute his case, as there is no statute in this state limiting the time within which the mandate in such cases must be applied for or issued, and no issue of abandonment of the suit was made.

On the trial the plaintiff was permitted to prove, over the objection of the defendant that the evidence was immaterial and irrelevant, that if the message had been delivered to him he would have known it was meant for him, and that it related to his son Robert; that he would have wired back to Chancellor to hold the body, and would have taken the morning train November 17th for Paris, and was permitted to prove by Chancellor, over same objections, that the body could have been kept 48 hours longer, and that, if he had received a message from plaintiff requesting it, he would have held the body until plaintiff's arrival. We think this evidence was all competent, material, and relevant, and related to things which very naturally would have occurred, and must be held to have been within the contemplation of the parties interested, in emergencies of that kind. Jones v. Roach (Tex. Civ. App.) 51 S. W. 549; Id. (Tex. Sup.) 54 S. W. 240; Telegraph Co. v. Mitchell (Tex. Sup.) 44 S. W. 274, 40 L. R. A. 209. At common law, before parties to the suit were permitted to testify, the jury could have inferred that the father would have so acted, from the relationship of the parties, but now he may state affirmatively what could then only be inferred.

The court, in effect, instructed the jury that if they believed from the evidence that the agents of the company were negligent in the transmission of the message or in failing to deliver it, and that the injury was caused thereby, to find for the plaintiff. The defendant company requested the following charge, which was refused: "The contract by virtue of which said message was sent provides that the defendant would not be responsible for any errors in the transmission of said message, it being an unrepeated message; and if you find that the failure to deliver said message was caused by any error made in said message during transmission of the same, by changing the name from 'Norris' to 'Nortys,' then you are charged that plaintiff cannot recover." Appellant insists that, as this was an unrepeated message, it is not liable for any injury or damages "caused by the negligence of its servants or otherwise," under the printed form of contract signed by the sender, which contained the above stipu lation. We think the evidence is sufficient to establish negligence on the part of appel

lant's agents in failing to correctly transmit the message as delivered to the agent at Paris. The simple fact that the name of the addressee was changed in the transmission from "Norris" to "Nortys" made a prima facie case of negligence against the company, and this fact put the burden on it to prove that the error was not due to negligence; the means of doing this being peculiarly within its knowledge and power. Telegraph Co. v. Edsall, 63 Tex. 675; 2 Thomp. Neg. p. 837, citing Telegraph Co. v. Carew, 15 Mich. 525; Rittenhouse v. Telegraph Co., 44 N. Y. 263; Tyler v. Telegraph Co., 60 Ill. 440; Baldwin v. Telegraph Co., 45 N. Y. 751; Bartlett v. Telegraph Co., 62 Me. 209. To these authorities we add 3 Suth. Dam. (2d Ed.) § 957, and authorities cited in note 1 on page 2140; Pearsall v. Telegraph Co., 124 N. Y. 256, 26 N. E. 534; Telegraph Co. v. Du Bois, 128 III. 248, 21 N. E. 5; Same v. Chamblee (Ala.) 25 South. 234; Same v. Odom (Tex. Civ. App.) 52 S. W. 633. In this case, however, no cause or excuse for the error was alleged in appellant's answer. It simply pleaded the stipulation printed on the message to the effect that it was an unrepeated message, and that it was not, therefore, liable in damages for the error. The charge asked was framed upon the theory that the contract relieved the company of liability, even though its agents were negligent in transmitting the message. This is not true. The appellant is a common carrier of messages, and while it does not insure accuracy in the transmission thereof, except by special contract, it must be held to the use of ordinary care and diligence in the performance of its contract, like every other common carrier. It holds itself out to the public as a common carrier of messages for hire, and, when it accepts a message and receives pay for transmitting it, it is bound in law to do it, or be able to show some valid excuse for not doing it. If atmospheric conditions or other unavoidable causes supervene to prevent, these may be pleaded and proved to avoid liability; but there is no more reason for this company to be exempt from liability for the negligence of its agents in performing any part of its duties or contracts than there is for excusing any other common carrier, and to permit it to contract against liability for the negligence of its agents and servants is to concede special privileges to which it is not entitled. The special charge was therefore properly refused, as the stipulation contained in the contract against liability for negligence was unreasonable and void, and the charge as asked would have compelled the jury to find for defendant, though they may have believed that the error in the transmission was the result of negligence on the part of appellant's agents. We understand this to be in accordance with the rule as established in this state. Telegraph Co. v. Neill, 57 Tex. 283, 289; Womack v. Telegraph Co., 58 Tex. 176; Telegraph Co. v. Odom (Tex. Civ. App.) 52 S. W. 632.

All the assignments of error are overruled, and no other, in our opinion, raises any new question which demands discussion. The Judgment is affirmed.

FLEMING et al. v. BALL et al.1 (Court of Civil Appeals of Texas. Jan. 23, 1901.)

EXECUTION-DEATH OF SOLE DEFENDANTSALE EFFECT - RECOVERY OF MONEY TRESPASS TO TRY TITLE-EQUITABLE RECOVERY.

1. A purchase of land at a sale under a judgment eight years after the death of the sole defendant therein, on whose estate there has been no administration, is void.

2. Under Sayles' Civ. St. art. 2332, providing that, on the death of a sole defendant after judgment, execution shall not issue thereon, but the judgment may be proved and paid in. course of administration, holders of the judgment, after the sole defendant's death, should sue the heirs for their debt or to revive the judgment, where the time in which administration could be had has elapsed.

3. Where, in trespass to try title by purchasers at a void sale under a judgment after death of the sole defendant therein, and after expiration of the time within which administration on his estate could be had, no equitable relief was asked, the money paid at the sale will not be required to be repaid before title will be decreed to the heirs or those claiming under them.

Appeal from district court, Franklin county; J. M. Talbot, Judge.

Trespass to try title by W. G. Fleming and another against C. C. Ball and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

P. A. Turner, for appellants. King & King and Chas. S. Todd, for appellees.

FLY, J. This is an action of trespass to try title to a certain tract of land off the Daniel Buie survey, instituted by W. G. Fleming and C. C. Carr against C. C. Ball and Mrs. Elizabeth Spradlin. The cause was tried by the court, and judgment rendered in favor of appellees. Appellants claim the land through a sheriff's deed, dated July 7, 1896, which was executed by virtue of an order of sale issued in a case styled "J. L. Rutherford v. J. P. Spradlin," which order of sale was issued eight years after the death of J. P. Spradlin. No administration was ever had on his estate. No money was paid by the purchasers at the sheriff's sale, but the amount due on the judgment was credited on a debt due by W. J. Spradlin, son of J. P. Spradlin, to C. C. Carr. Mrs. Elizabeth Spradlin is the widow of J. P. Spradlin, and C. C. Ball claimed the land through a bond for title from her and the children of J. P. Spradlin. There is but one assignment of error, and under it is submitted the following proposition: "A sale of land under an order of sale issued on a judgment for money, and establishing and foreclosing a ven

Rehearing denied February 27, 1901, and writ of error denied by supreme court.

dor's lien on said land, is not absolutely void, because the sole defendant in said judg ment was dead at the time said order of sale was issued, there being no administration on said estate, and no possibility of one; more than four years having elapsed since the death of the defendant in the judgment." The proposition is based upon the facts in proof, and presents the only point in the case. There has been some conflict of opinion in Texas on the question involved, but we think that the correct ruling was made by the district judge, and that the sale under the judgment, made after the death of the defendant, was void. A review of the Texas cases shows that the point at issue was first passed upon in the case of Conkrite v. Hart, 10 Tex. 140, and it was held that a sale of land, made after the death of a defendant, under an execution issued before his death, was void, and that no title was acquired thereby. That decision was affirmed in Robertson v. Paul, 16 Tex. 472; Boggess v. Lilly, 18 Tex. 200; Chandler v. Burdett, 20 Tex. 42; McMiller v. Butler's Adm'x, Id. 402; Emmons v. Williams, 28 Tex. 778; Cook v. Sparks, 47 Tex. 28; Meyers v. Evans, 68 Tex. 466, 5 S. W. 66; Schmidtke v. Miller, 71 Tex. 103, 8 S. W. 638; Northcraft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Hooper v. Caruthers, 78 Tex. 432, 15 S. W. 98.

The decision in Conkrite v. Hart was first questioned in Webb v. Mallard, 27 Tex. 83, where Justice Moore expressed a doubt as to its correctness. In Taylor v. Snow, 47 Tex. 462, the decision in Conkrite v. Hart is attacked and overruled, through a decision rendered by the same judge who wrote the opinion in Webb v. Mallard. In Cain v. Woodward, 74 Tex. 549, 12 S. W. 319, it was held that Taylor v. Snow had overruled the previous decisions on the subject, and it was concluded that a sale of land made under an execution issued after the death of a sole defendant was merely voidable. The opinion was delivered by the commission of appeals, and adopted by the supreme court. It is interesting to note that in the same volume (page 162), in the case of Northcraft v. Oliver, it is said by the supreme court: "The evidence in this case shows that the execution under which defendants hold was issued after A. T. Oliver's death, and for that reason was void." The last decision on the subject is found in Hooper v. Caruthers, 78 Tex. 432, 15 S. W. 98, where, after reviewing the Texas authorities, it is said: "Giving technical effect to a judgment, the case of Taylor v. Snow was probably correctly de cided on its facts; but we are of the opinion that the law is correctly stated in the other cases referred to, and that a sale made under execution against a deceased person after his death, he being alive at the time judgment was rendered, is void in the sense that it is wholly inoperative to pass title to or against any one, and therefore may be attacked directly and collaterally." It is ex

pressly provided in article 2332, Sayles' Civ. St., which was enacted in 1853, that, "where a sole defendant dies after judgment for money against him, execution shall not issue thereon, but the judgment may be proved and paid in due course of administration." In this case the time had elapsed in which administration could be had on the estate of J. P. Spradlin, and appellants should have sued the heirs for their debt or to revive the judgment that had been abated by the death of the defendant. McCampbell v. Henderson, 50 Tex. 610; Low v. Felton, 84 Tex. 378, 19 S. W. 693. This is an ordinary action of trespass to try title, no equitable relief being asked by either of the parties, and the rule announced in Northcraft v. Oliver, above cited, and reiterated in Halsey v. Jones, 86 Tex. 488, 25 S. W. 696, to the effect that in cases like the one before us the purchase money paid for the land at the void sale must be repaid before title will be decreed to the heirs, can have no application. this state of pleadings, "whoever showed the superior legal title to the land was entitled to a judgment, notwithstanding facts may have existed which, if properly pleaded and proved, would have entitled plaintiffs to some affirmative equitable relief should it appear that appellee held the superior legal title." Groesbeeck v. Crow, 85 Tex. 200, 20 S. W. 49. The judgment is affirmed.

JONES v. BOURBONNAIS.1 (Court of Civil Appeals of Texas. Jan. 26, 1901.)

In

PUBLIC-SCHOOL LANDS—PURCHASE-ACTUAL

SETTLEMENT.

1. The parties to a suit agreed in writing "that the venue in this case shall be, and is hereby, changed" to another county; and on filing such agreement the court entered an order making the change, under Rev. St. art. 1270, providing that the court may, on the written consent of the parties, filed with the papers of the cause, by order, transfer the cause for trial to the court of any other county. Held, that on the entry of such order the court of the county to which the cause was transferred acquired jurisdiction, notwithstanding that the agreement provided that all papers then on file in the cause should be transmitted, and when so transmitted the court of the county to which the case was transferred should have jurisdiction, and all the papers had not been transmitted when the trial was had.

2. Where the only acts of settlement of a purchaser of school land, who was living on and conducting a cattle ranch seven miles away, consisted in going on the land two or three times and staying two or three hours, surveying one line, digging a hole 2 feet deep, and erecting a dugout thereon 8x10x5% feet, and putting a cook stove therein, but he never slept in the dugout, or left any clothing, bedding, or other furniture therein, he was not an actual settler, within Rev. St. art. 4218f, providing that public-school lands shall be sold to actual settlers only, and article 4218i, providing that a bona fide settler on school lands may purchase additional lands.

3. Under Rev. St. art. 4218f, providing that public school lands shall be sold to actual set1 Writ of error denied by supreme court.

tlers only, and article 4218i, providing that a bona fide settler who has heretofore purchased not exceeding one section may purchase additional land, one who is not an actual settler on school land theretofore purchased cannot purchase additional school land, though he has been prevented from actually settling on his purchase by sickness.

Appeal from district court, Lipscomb county; B. M. Baker, Judge.

Action by J. H. Jones against A. F. Bourbonnais. From a judgment for defendant, plaintiff appeals. Affirmed.

H. E. Hoover and C. Coffee, for appellant. W. D. Fisher and Plemmans & Vieale, for appellee.

CONNER, C. J. This suit was instituted by appellant September 30, 1898, in the district court of Ochiltree county, to try title and recover of appellee the possession of state school land section 52, block 43, surveyed by the Houston & Texas Central Railway Company; the same being claimed by appellant, Jones, under an award from the commissioner of the general land office, as “additional land" to his home section, 192, of the same survey. On December 12, 1898, the cause was transferred by agreement to the district court of Lipscomb county. At the May term, 1900, of the district court of Lipscomb county, the cause came on for trial before a jury, which, having heard the evidence, returned a verdict for appellee in obedience to a peremptory instruction of the court. From the judgment in appellee's favor, appellant has appealed, assigning error to the action of the court in assuming jurisdiction, in refusing appellant a continuance, in the admission and rejection of evidence, in refusing special charges requested, and in peremptorily instructing the jury as stated. We think a determination of the assignments questioning the jurisdiction of the court and the peremptory charge of the court will dispose of all questions presented on this appeal, and we therefore address ourselves to these questions first.

Article 1270, Rev. St., reads: "The court may, upon the written consent of the parties thereto, or their attorney, filed with the papers of the cause by an order entered on the minutes, transfer the same for trial to the court of any other county having jurisdiction of the subject matter of such suit." In accord with this article, the parties to this action, by their respective attorneys, agreed in writing that the venue should be changed from the district court of Ochiltree county to the district court of Lipscomb county, which agreement was duly filed, and upon which the court duly ordered the venue changed as agreed upon; said order being duly entered upon the minutes. The agreement, however, provided that all papers then on file in the cause should be transferred and transmitted to the district court of Hemphill county, and that when said papers are transferred to the district court of Lips

comb said cause shall stand for trial in said court, the same as if said court had had original jurisdiction over same, without any further formality or the use of certified copies"; and it is here insisted that the jurisdiction | of the district court of Lipscomb county did not attach, by reason of the fact that the clerk failed to transmit all the papers in the cause as agreed upon. Reading the agreement as a whole, we do not construe it as conditional in any sense. It reads in part: "It is agreed by and between the parties in the above numbered and styled cause that the venue in said cause be changed from the district court of Ochiltree county, Texas, to the district court of Lipscomb county, Texas. It is agreed that the venue in this case shall be, and the same is hereby, changed to the district court of Lipscomb county, Texas." These sentences are complete within themselves, and not made conditional by the subsequent provision requiring a transmission of the papers. The absence of papers material as evidence or otherwise might constitute sufficient ground for a postponement or continuance of the cause in the district court in Lipscomb county, but could not defeat the jurisdiction of the court acquired by unconditional order entered upon the minutes of the district court of Ochiltree county as provided by the statute. To which may be added the further fact that the jurisdiction of the district court of Lipscomb county was not there questioned by plea to that effect, appellant merely making formal application for a postponement or continuance in order to procure certain written evidence of the proper classification of his home section, which had been on file, but not transmitted as had been provided in the agreement. We think the assignment involving this question should be overruled.

It remains to be determined whether, under the undisputed facts, the court was authorized in giving the peremptory charge in appellee's favor. One of the prerequisites to the acquisition of "additional lands" under the laws regulating the disposition of our public free school domain is actual settlement upon the home section at the time of the application to purchase such additional lands. Rev. St. art. 4218f; Schwarz v. McCall (Tex. Sup.) 57 S. W. 31. The undisputed evidence shows that on January 29, 1898, appellant, in due form, applied to purchase his home section, 192; that on August 17, 1898, he, in due form, made application to purchase section 52, in controversy, as additional to his home section, by virtue of which applications, and other formalities complied with, both sections were awarded to appellant by the commissioner of the general land office. Appellant testified on cross-examination as follows: "I settled on section 132 on January 29, 1898. All that I did as an evidence of my settlement was to go upon the land and have the lines run. W. Coffee did the surveying. I carried the chain. We had the field notes,

started from the corner of another section. I was on the land two or three times before filing. Went on the land and stayed there a while. Was hunting for a home. Got off my horse. Was there two or three hours. Prior to this time we had a ranch in Wheeler county. Held it by lease. We then leased the CC ranch,-me and my brother,-in Roberts county. I don't know that I settled before I surveyed. I did not build a house, dugout, nor stretch a tent, nor leave a bed nor any cooking utensils on the land. I cannot tell of any other act relative to my settlement upon the land, than that I had the line run out on one side of the section. After I filed, I made improvements in the latter part of June. I put a dugout on the land. I was taken sick when I went back to Miami. Was sick until March 1st. I went to Ft. Worth to see specialist. Got back to Miami April 1st. Then went to Mobeetie, and brought cattle to Miami to ship. Then came to the CC ranch to receive bunch of horses. From there went to New Mexico to get herd of cattle. Got back middle of June. Rested at ranch several days, and then Jim Turner went with me to help build dugout. 192 is seven miles from ranch. This is the first time I, or any one for me, started dugout on 192. We also built a dam. At this time we dug a place almost two feet deep, about 8x10. We did not cover it then. Don't remember whether we slept there that night or not. Generally carry my bed in the wagon, but don't remember if had it at this time. In the summer I went back, and carried a couple of men with me to help on the dugout. I did not carry any trunk there. Have not got any. I kept some of my clothing at Canadian, some on the ranch, some at Miami, and some on 192. Never left my clothes on 192 until some time after I got back from New Mexico. I don't remember what furniture I put in the dugout. I put a cook stove there. I first began to use it in the fall. Dugout was about 5% feet on inside. I stayed on ranch a while after I came back from Mexico, because I had no improvements on my place. Yes; I suppose I could have had improvements built there while I was sick and away from home. I did not have time to put improvements on my place. I never did any work of any kind upon this land until the latter part of June, 1898. All I did was to go on the land, survey one side of it, and file upon it. Never placed any lumber, bedding, or anything on the land whatever until the latter part of June. never slept in the dugout one night." On redirect examination he testified: "The reason I did no improvements during the time I mentioned was on account of business, and being taken sick. I took the place in good faith for my home. Had no other home during the time I mention, and acquired no other since. I began to improve this place just as soon as my health and business would permit. During the time of my sickness I

I