second assignment error in Texas

2015Id., 866 .

1945The statement of a test applicable here is given by Mr. Justice Moursund of this court in the following excerpt from Beasley v. Faust, Tex.Civ.App., 217 S.W. 179 , viz: “By the second assignment of error complaint is made because the court permitted Dr. Treon to testify that defendant from about 1912 to the date of the trial would not be conscious of the effect his acts would have on him or surrounding circumstances.

1933Association, 17 S.W.(2d) 1046 , and U. S. Fidelity & Guaranty Company v. Nettles, 35 S.W.(2d) 1045, 1046 , both of which held that the trial court has no authority to find a lump sum amount based upon the findings of the jury as to the amount due by weekly installments to an employee under the Workmen’s Compensation Law (Vernon’s Ann.

1933Association, 17 S.W.(2d) 1046 , and U. S. Fidelity & Guaranty Company v. Nettles, 35 S.W.(2d) 1045, 1046 , both of which held that the trial court has no authority to find a lump sum amount based upon the findings of the jury as to the amount due by weekly installments to an employee under the Workmen’s Compensation Law (Vernon’s Ann.

1932The first proposition under the first assignment of error is as follows: “A person conveying property by general warranty deed covenants that the property is free of encumbrances except as to indebtedness recited in the deed; and the amount of indebtedness provided in the deed and assumed by the grantee not having included attorney’s fees, and the attorney’s fees having accrued prior to the execution and delivery of the deed, the purchaser, upon being required to pay the attorney’s fees, was entitled to recover from the seller the amount so paid in excess'of the amount assumed by him.” The pro

1932App. 326 , 28 S. W. 565 ; Gerlach-Higgins Milling Company v. Schrock (Tex. Civ.

1932Or, as is said in the syllabus of International Travelers’ Association v. Powell, 109 Tex. 550 , 212 S. W. 931 , “a provision in the policies and the by-laws of a mutual assessment insurance company that actions for loss shall be brought only in the county of its domicile is contrary to public policy and cannot be maintained.” The second assignment of error is that the court erred in refusing to permit D.

1932Or, as is said in the syllabus of International Travelers’ Association v. Powell, 109 Tex. 550 , 212 S. W. 931 , “a provision in the policies and the by-laws of a mutual assessment insurance company that actions for loss shall be brought only in the county of its domicile is contrary to public policy and cannot be maintained.” The second assignment of error is that the court erred in refusing to permit D.

1931We discussed a definition less favorable to the defendant very fully in West Texas Coaches v. Madi, lo S.W.(2d) 170, which opinion was affirmed by the Supreme Court in 26 S.W. (2d) 199 , and, .upon' the authority of that case and the cases there cited, this assignment is overruled.

1929App. 677 , 36 S. W. 1010, 1012 , in which a writ of error was denied, the court says: “The second assignment of error insists that as appellants held ,a vendor’s lien upon the realty at the time the machinery was placed upon it, and the machinery was- so placed without their knowledge or consent, and without any agreement on their part that it should remain chattel until paid for, as to them it became a part of the realty.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1926The authorities sustaining the-rule are cited by counsel for plaintiff in error as follows: Hogan v. Kellum, 13 Tex. 396 ; Denison v. League, 16 Tex. 400 ; Silliman v. Gano, 90 Tex. 637 , 39 S. W. 559 , 40 S. W. 391 ; Hutcheson v. Railway, 102 Tex. 471 , 119 S. W. 85 ; Yett v. Cook, 115 Tex. 205 , 281 S. W. 837 ; Jordan v. Massey (Tex. Civ.

1924App.) 145 S. W. 1039 , the pdint was made that no bond was given, and the court, quite indecisively, held: “The second assignment of error is sustained, because the most that can be said is that the trial court may, in the exercise of his discretion in a proper case, order the issuance' of a preliminary writ of injunction without requiring of the applicant a bond.

1922App.) 222 S. W. 211 .” We come now to a consideration of the second assignment of error urged by Boat-ner in the application.

1921Morriss v. Hesse, 210 S. W. 710 . . [2] We are of the opinion that the second assignment of error is well taken.

1921Doty v. Barnard 92 Tex. 104 , 47 S. W. 712 .” We overrule the first assignment of error. [3] The second assignment of error complains of the action of the court in not allowing a credit to plaintiff in error of the alleged payment of $500 made by F. W.

1921Doty v. Barnard 92 Tex. 104 , 47 S. W. 712 .” We overrule the first assignment of error. [3] The second assignment of error complains of the action of the court in not allowing a credit to plaintiff in error of the alleged payment of $500 made by F. W.

1921Go. v. Minnie Ola Legg, 229 S. W. 587 , decided by this court in 1918, in considering the action of the trial court, in directing a verdict, we said: “We sustain the second assignment of error, which complains of the action of the trial court in directing a verdict for the appellees.

1920Tignor v. Toney, 13 Tex. Civ.

1920In Bassham v. Evans, 216 S. W. 446 , Chief Justice Huff, speaking for the court, said: “Every unauthorized entry upon the land of another is a trespass, and it is a willful trespass if intended and deliberate.” McCarthy v. Miller, 57 S. W. 973 ; Ripy v. Less, 55 Tex. Civ.

1920Lancaster v. Keebler, 217 S. W. 1117 .

1920App. 550 , 23 S. W. 546, it is said: “The point raised in the second assignment of error is that ‘the court erred in permitting plaintiff to prove by himself and his witnesses, Jeff Haskell, T.

1920In Bassham v. Evans, 216 S. W. 446 , Chief Justice Huff, speaking for the court, said: “Every unauthorized entry upon the land of another is a trespass, and it is a willful trespass if intended and deliberate.” McCarthy v. Miller, 57 S. W. 973 ; Ripy v. Less, 55 Tex. Civ.

1919App. 393 , 83 S. W. 871 , and authorities cited. [4-6] The second assignment of error complains that the court erred in not rendering judgment against Dean A. Cone as surety on the bond declared on by the appellant, because he defaulted, did not appear and answer, urged no defense whatever, nor sought- the benefit of his cosurety’s defense.

1919See authorities hereinbe-fore cited, and also Dickinson v. Lyle, 130 S. W. 904 ; San Antonio v. Royal, 16 S. W. 1102 . [18] The second assignment of error is as follows: “The court erred in submitting to the jury its third special issue, for that this action is brought for the recovery of damages for an alleged breach of contract, and not for the recovery of renewal commissions owing under such contract, and said issue, therefore, is not relevant or material to any question presented by the pleadings.” The company’s contention under this assignment is, in effect, that this is a suit to recover

1919Wood v. Deaton, 93 Tex. 243 , 54 S. W. 901 , has settled the question presented by the second assignment of error.

1919Wood v. Deaton, 93 Tex. 243 , 54 S. W. 901 , has settled the question presented by the second assignment of error.

1918App.) 199 S. W. 851 , and authorities therein cited. [3] The second assignment of error assails . the action of the court in not instructing a verdict for appellant, because Charles Kusel and Willie Kusel testified as to the market value of the horse without qualifying as experts.

1918R. 28 , 166 S. W. 1150 . [2] The second assignment of error challenges the action of the trial court in not admitting the evidence of the witnesses Singleton et al., offered by plaintiffs to show that the gong and whistle on the motorcar was not nearly so strong and could not be heard nearly so far as the 30-pound bell and steam whistle in use on the locomotive engines operated on defendant’s railway, and on the other railways of the state.

1918Joske v. Irvine, 91 Tex. 582 , 44 S. W. 1059 , and cases cited. [3-5] The second assignment of error is as follows: “The verdict of the jury on special issue No. 2 is contrarj' to the law and the evidence, and without support in either, in this, the instrument introduced in evidence as to which said special issue No. 2 is a finding was not proved by any competent evidence to have ever been executed, delivered, accepted, and acted upon by the putative grantee there' nor was the same proved as a matter of fact as the act and deed which it purports to be under the rules of the common law or other

1918Co., 180 S. W. 644 . [2] The proposition urged under the second assignment of error is: The return upon the notice showing legal service and the judgment reciting legal service, unless it he shown that the plaintiff was guilty of fraud, connivance, or collusion, in procuring a false return, appellees should not prevail in this action.

1916App. 71 , 107 S. W. 369 ; Milmo v. Adams, 79 Tex. 526 , 15 S. W. 690 ; The second assignment of error complains of the refusal of ttye trial court to admit certain evidence.

1916App. 71 , 107 S. W. 369 ; Milmo v. Adams, 79 Tex. 526 , 15 S. W. 690 ; The second assignment of error complains of the refusal of ttye trial court to admit certain evidence.