The plaintiff's petition does not undertake to avoid the sale on the ground that it is voidable, but contends that the sale is absolutely void; and it is not framed with the view of obtaining the relief of the court in the event that the sale would be held to be merely voidable. Therefore, we are of the opinion that the court committed no error in the ruling complained of.

These latter remarks will also, in the main, apply to the questions raised in the second assignment, especially the third question there presented. If there were irregularities in the sale, the petition should have been so framed as to raise these questions, which was not done.

It is admitted that the Atlanta Lumber Company is common source of title, and the facts in the record show that the appellee's title from that source is the oldest, and unless its title could be held to be void, it must, in view of the averments of the petition, prevail over that of the appellant, as the pleadings of the appellant are not framed so as to bring any issue into the case raising the question of appellee's title being merely voidable. Therefore, we must hold that none of the grounds urged in the second assignment of error are well taken.

The second subdivision of that assignment presents a question which could not be raised by the appellant in this case. It will be observed that in the judgment as quoted in the findings of fact, against the Atlanta Lumber Company, that the appellant T. L. L. Temple was a party thereto; and if facts or conditions existed which would not have authorized a judgment in favor of the Branch-Crooks Saw Company against the Atlanta Lumber Company and against Temple, they should have been urged in that case. The judgment is not void upon its face, merely by reason of the fact that the Atlanta Lumber Company had ceased to do business. Facts and circumstances might have existed which would have authorized the trial court in that case, to have rendered judgment against the Atlanta Lumber Company and against Temple as trustee of its funds and property, notwithstanding the fact that the Atlanta Lumber Company as a corporation, ceased to do business and its property had been transferred to Temple as trustee. If any circumstances existed which would have justified the court in declining to enter judgment against the Atlanta Lumber Company they should have been urged by the defendants in that case, which the record shows was not done; and we are of the opinion that that judgment is not subject to the coliateral attack now urged against it for the reasons stated in the assignment.

We find no error in the record and the judgment is affirmed. This conclusion relieves us of the necessity of passing upon the appellee's cross-assignments of errors.

Writ of error refused.

Affirmed.

MRS. JENNIE LONGWELL V. J. J. LONGWELL.

Decided May 31, 1905.

1.-Divorce-Pleading-Residence-Jurisdiction.

Where plaintiff's petition for divorce alleged that "both plaintiff and defendant are bona fide residents of El Paso County, State of Texas, where they have resided for more than one year preceding the filing of this petition," but did not allege that plaintiff, at the time of exhibiting her petition, was "an actual bona fide inhabitant of the State," this latter was clearly implied from the allegation as made, and the judgment was not subject to attack on the ground that the court was without jurisdiction because of the absence of such further averment.

2.-Same-Practice on Appeal-Presumption.

In the absence of a statement of facts it will be presumed on appeal that a judgment in a divorce case partitioning the property was a fair and equitable adjustment of the rights of the parties and was based upon evidence authorizing and sustaining it.

Error from the District Court of El Paso. Tried below before Hon. A. M. Walthall.

M. W. Stanton, for plaintiff in error.-The trial court was without jurisdiction, power and authority to hear and determine said cause and grant a divorce therein, and the judgment rendered in said cause is not supported by the allegations of the pleadings in said cause in that there is no allegation either in the petition or answer in said cause that said petitioner, Jennie Longwell, at the time of exhibiting her petition was an actual bona fide inhabitant of the State of Texas. Rev. Stats., arts. 2978, 1194, subdiv. 16; Bruner v. Bruner, 43 S. W. Rep., 796; Haymond v. Haymond, 74 Texas, 418, 12 S. W. Rep., 90; Hare v. Hare, 10 Texas, 355; Morgan v. Morgan et al., 21 S. W. Rep., 154; Ditson v. Ditson, 4 R. I., 107; Wallace v. Wallace, 50 Atl. Rep., 788, 792; Winship v. Winship, 16 N. J. Eq., 107, 109; State v. Boyd, 48 N. W. Rep., 739, 752; Spragins v. Houghton, 3 Ill., 377, 392.

Beall & Kemp and Patterson & Wallace, for defendant in error.-The jurisdiction must not only be presumed to exist, but is shown by the record. Stelle v. Shannon, 62 Texas, 200; Gentry v. Schneider, 77 Texas, 2; Cotulla v. Goggan Bros., 77 Texas, 34; Greenwood v. Watts, 1 W. & W., sec. 115; Stewart v. Anderson, 70 Texas, 593.

NEILL, ASSOCIATE JUSTICE.-This is a suit for a divorce and for a partition of the community property brought by plaintiff in error against defendant in error. The case was tried before the court on the 30th of March, 1904, without a jury, and the court having found all the material facts alleged by the plaintiff true, decreed the divorce and partitioned the community property between the parties. On the 12th day of December, 1904, the writ of error, by which it is sought to have the judgment reviewed by this court, was sued out. There is no statement of facts in the record and it must be presumed, therefore, that all matters plead by the parties necessary to sustain the judgment of the court were proven.

By the first assignment of error it is urged that the court was without jurisdiction to grant the divorce, because there was no allegation either in plaintiff's petition or defendant's answer that Jennie Longwell, at the time of exhibiting her petition, was an actual bona fide inhabitant of the State of Texas.

This presents the anomalies of a plaintiff objecting to the sufficiency of the allegations in her own petition, and, on account of such objection, seeking to have the decree which she sought by her petition annulled. Unless the decree is absolutely null and void, it may be questioned whether this can be done even by directly attacking it on appeal or error. But aside from any such question, we do not believe her petition is subject to the objection urged. It alleges that "both plaintiff and defendant are bona fide resident citizens of the city and county of El Paso and State of Texas, where they have resided for more than one year next preceding the filing of this petition." It is true it does not allege that at the time of exhibiting her petition she was "an actual bona fide inhabitant of the State," but this is clearly implied from the allegation quoted from her petition. If both she and her husband were bona fide resident citizens of the city and county of El Paso and State of Texas, and had resided there for more than one year next preceding the filing of her petition, she was necessarily a bona fide inhabitant of the State of Texas. As is said by this court in Michael v. Michael, 79 S. W. Rep., 74: "It is evident that if the plain, ordinary signification of the word 'reside' used in the statute is given to it, it would necessarily be construed to require an actual living in the county for more than six months immediately preceding the filing of the suit. The word reside, in its ordinary sense, carries with it the idea of permanence as well as continuity." If, then, plaintiff resided twelve months in El Paso County, Texas, next prior to the date of filing her petition, she was a bona fide inhabitant of such State and county during that time, and, in the absence of a statement of facts, it will be presumed that the court found that she was such bona fide inhabitant. In fact, this is implied in the finding by the court "that the material allegations of plaintiff's petition asking for a divorce are true."

It will be presumed in favor of the judgment partitioning the property that the $2,500 adjudged in favor of defendant as a charge upon a community property was proven, as alleged, to be the amount of his. separate funds, the investment of which could be traced into property of the community on hand and identified at the time such judgment was rendered. It must be also presumed, in the absence of a statement of facts, that the court made a fair and equitable settlement, adjustment and disposition of the rights of the parties as to both their separate and community property, and that its adjudication of all such matters was found upon evidence authorizing and sustaining it.

No error is assigned that would authorize us to reverse the judgment, and it is therefore affirmed.

Affirmed.

JOHN MCCABE V. SAN ANTONIO TRACTION COMPANY.

Decided May 31, 1905.

1.—Trial-Admission of Evidence-Issue not Submitted-Street Cars.

In an action for injury to a street car passenger in alighting, error, if any, in admitting evidence of a city ordinance prescribing where cars should stop at street crossings, was harmless where no issue as to negligence in stopping the car was submitted to the jury.

2.-Negligence-Street Cars-Stopping at Crossings.

A street car company can not ordinarily be held negligent in acting in obedience to a valid ordinance of a city prescribing its duties to the public, as with reference to where its cars shall or shall not stop at street crossings. 3.-Evidence-Conclusion of Witness.

As an exception to the rule excluding the conclusions and opinions of a witness, common observers may testify as to the results of their observation, made at the time, in regard to common appearances or facts, and a condition of things which can not be reproduced and made palpable to the jury. No exception held applicable where a witness stated that a lady whom he saw alight from the running board of a street car fell because she must have slipped.

Appeal from the District Court of Bexar. Tried below before Hon. A. W. Seeligson.

Will A. Morris, for appellant.-The testimony of the witness Cook that Mrs. McCabe slipped was shown by his cross-examination to be a conclusion, and was not admissible. Railway Company v. Lane, 79 Texas, 646; Dennis v. Sanger, 39 S. W. Rep., 998; Waul v. Hardie, 17 Texas, 559.

Ogden & Brooks, W. H. Lipscomb and Walter P. Napier, for appellee.-Witnesses not shown to be experts may, nevertheless, testify to the facts, although such facts appear to be opinions or conclusions of facts, if the subject matter to which their testimony relates can not be reproduced or described to the jury as it appeared to the witnesses at the time of its occurrence. Atchison, T. & S. F. Ry. Co. v. Miller, 18 Pac. Rep., 486; Commonwealth v. Sturtivant, 117 Mass., 133; State v. Shinborn, 46 N. H. 501; City of Persons v. Lindsay, 26 Kan., 432; 1 Elliott on Evidence, 677.

NEILL, ASSOCIATE JUSTICE.-This was a suit brought by appellant against the appellee to recover $15,000 damages for personal injuries to his wife, alleged to have been occasioned by the negligence of defendant while she was a passenger upon one of its electric street cars.

After alleging that the car upon which his wife was a passenger was an open car provided with a step known as a running board extending along its side from one end of the car to the other, plaintiff alleged, as the grounds of negligence which caused her injuries, that defendant negligently failed to stop the car at a street crossing where there was a plank walk upon which she could alight from the car with safety, and that after the car passed beyond the plank walk, it being dark and his wife, not being able to see the condition of the street where the car

was stopped, in response to defendant's invitation to alight from the car at such point, stepped on the running board; she being an aged and delicate woman, the conductor while guiding and assisting her, told her to walk back along the running board to the end of the car to the plank walk, suddenly turned her around facing the back end of the car and then, without warning her, suddenly turned loose her arm, whereby she, being unable to balance and prevent herself from falling, fell violently to the ground. That the act of the conductor in releasing his hold on her in such manner was negligence on the part of defendant, which, without fault or negligence of plaintiff's wife, independently and together with the negligence of defendant in failing to stop the car at a proper place for her to alight, was the direct and proximate cause of her injuries.

The defendant, after denying the alleged act of negligence, plead that plaintiff's wife was guilty of contributory negligence in that after the car had stopped in obedience to her signal at a reasonably safe and proper place for her to alight therefrom, she, in undertaking to alight, was so negligent and careless that she slipped and fell from the running board, thereby causing her fall and injuries, if any, resulting therefrom. The case was submitted to the jury only upon the alleged negligent act of the conductor in releasing his hold on plaintiff's wife while she was on the running board and upon the issue of her contributory negligence. A general verdict was found for the defendant, and from the judgment entered upon it plaintiff has appealed.

Conclusion of Fact.-We find in deference to the verdict that plaintiff's wife's fall from the car, and the alleged injuries were not caused by the negligence of defendant.

Conclusions of Law.-As the case was not submitted to the jury upon the issue of the alleged negligent failure of defendant to stop the car so plaintiff's wife could alight therefrom on the plank walk, we fail to perceive how plaintiff could in any way have been prejudiced by the court's admitting in evidence the ordinance of the city inhibiting street. cars from stopping on street crossings and compelling them to stop after passing such crossings for the purpose of taking on and letting off passengers. If, however, the case had been submitted on the issue as to whether defendant was negligent in failing to stop the car opposite the plank walk, which was shown to be at a street crossing, the ordinance would have been admissible as evidence negativing such negligence. For a defendant can not, ordinarily, be held negligent in acting in obedience to a valid ordinance of the city prescribing its duties to the public.

The third assignment of error complains of the court's refusing on plaintiff's motion to strike out the testimony of the witness F. W. Cook, to the effect that Mrs. McCabe slipped off the running board, the ground of such motion being that the witness on cross-examination showed that his statement, that she slipped off, was merely a conclusion, and that he did not know and could not testify as a fact that she slipped.

The testimony of the witness, which is made the subject of this assignment, is as follows: "I was sitting several seats behind the two ladies.