cannot be repealed or amended except by a vote vote cast for all candidates for mayor at of the people." the last preceding election," requested appelIn construing the provision just quoted, lants to submit to the legal voters of said our Supreme Court, in City of Dallas v. Dal-city at the general election to be held in las Consolidated Electric Street Railway Co., 105 Tex. 337, 148 S. W. 292, said: April, 1912, the following ordinance: "An ordinance requiring the securing of estimates on installing a municipal electric light and power plant, and the submission of a proposition based on said estimates at a regular election. "The plain declaration of this charter provision that 'such ordinance shall thereupon become a valid and binding ordinance of the city' forbids the view that the completed enactment of this ordinance was dependent upon anything further than the ascertainment by the board of commissioners that a majority of the quali-ers of the city of Dallas, and by the people of Dallas, acting under the initiative provisions of the charter: fied electors had voted in favor of it." Thus, when appellants, the mayor and board of commissioners, ascertained that the ordinance here involved had been adopted, their functions ceased, and the ordinance stood a finished and completed municipal law, under which it was the duty of the appellants to prepare and negotiate the bonds and levy the tax thereby authorized and use them for the purpose indicated. It follows then that, if we take cognizance of the present cause, it will be to entertain and to determine a proceeding which contemplates the destruction of a law which has, in effect, imposed a tax directly upon us, and the existence of which, in the language of the Supreme Court, is dependent upon a judgment to be entered by the members of this court. The record here shows the ordinance was held by the lower court not to have been adopted, and, in illustration of what we have said, an affirmance of that Judgment would be to relieve us of the tax imposed, and that such a condition would result is said to be a sure test of disqualification. For the reason stated, we deem ourselves disqualified to enter any order in the appeal other than to certify our disqualification to the Governor, which is herewith directed, and that the cause be passed until a special court is appointed to hear and determine same. On Rehearing. Counsel for appellee earnestly insist that we are in error in holding ourselves disqualified to consider this appeal on the merits because we are in error in holding: (1) That the ordinance submitting the bond issue was enacted by virtue of the initiative and referendum provision of the city charter; (2) that the "proposition" submitted to the electors to vote the bonds was, in fact, an ordinance; and (3) erred, as a matter of law, in holding that any judgment we might enter on the merits of this appeal would produce or pre vent the issuance of the bonds. [2] The facts contained in the record, because agreed to, were stated by us in a general way, because we presumed no issue would arise in that respect, but, in order to make clear our conclusions of law, we will discuss seriatum the successive steps shown by litigation. On February 20, 1912, certain electors of the city of Dallas, "constituting in "Be it ordained by the board of commission "(a) That a committee consisting of the street, water and finance commissioners, is heremitted to the board of commissioners within by instructed to have estimates made and sub90 days, for installing a municipal electric light and power plant in connection with the water department, and, (b) That no further contracts for the public electric lighting of the streets be made by the city before a proposition for the establishment of said municipal plant, based on these estimates, is voted on by the citizens at a regular election." There are but two methods provided by the Dallas charter by which ordinances may be enacted: By the board of commissioners, and by the electors, as authorized by the provisions of the initiative and referendum provisions of the charter (article 2, § 2; article 3, § 11; article 8). Here we call attention first to the enacting clause of said ordinance which recites that it is ordained "under the initiative provisions of the charter," and second to the statement already quoted from the agreed statement of facts, describing those presenting the ordinance as "constituting in number more than five per cent. of the entire vote cast for all candidates for mayor at the last preceding election," which is all but a literal reproduction of the language contained in the initiative provision of the charter providing how such ordinances may be originated. Thus it will be seen that the ordinance quoted was at least enacted under the initiative and refing, then, with the record, it appears that erendum provisions of the charter. Proceedappellants did submit said ordinance to the electors at a general election on April 2, 1912, and after canvassing the votes appellants declared said ordinance "duly enacted." Afterwards, acting pursuant to the powers conferred by the ordinance so adopted, the board of commissioners, acting through two of its members, estimated the cost of installing said municipal lighting and power plant, which estimate was adopted by the board. Thereupon appellants submitted to the electors for election of April, 1913, and after making their adoption or rejection at the general said estimate, the following ordinance: 000 in bonds of the city of Dallas, for the "For the proposition of the issuance of $400,purpose of procuring money for the following permanent public improvements, to wit: For the purpose of constructing and establishing a public lighting of the streets, parks, grounds municipal electric lighting plant to furnish the Deeming our original conclusions correct, it becomes our duty to overrule the motion for a rehearing. Austin. HARPER v. DAWSON. (No. 5363.) We hold this last ordinance to be an inher- a consequence any judgment entered in this ent and necessary part of the ordinance sub-appeal by us will produce or prevent the mitted to the electorate, and to have been issuance of the bonds. While appellants, as contemplated by said ordinance. The pre- the duly constituted officials of the city have amble of the initiative or first ordinance re- the right to propose bond issues to the eleccites its purpose to be to secure an estimate torate, and may exercise their discretion in of the cost of installing a municipal light that respect, it is equally clear that, after and power plant and the submission of a a majority of the property taxpayers have proposition based on such estimate at a regu- voted the bonds, their duties become purely lar election. Further, the concluding clause ministerial, and are confined to the preparathereof makes the intention yet clearer in tion and negotiation thereof, as prescribed by directing that no further contracts for public the further provisions of the charter. lighting be made by the city until a proposition to establish a lighting plant based upon the estimates to be prepared by authority of the first ordinance is voted upon at a regular election. The necessity for deferring an election on the bond issue contemplated by the initiative ordinance is found in the fact that by the Dallas charter bonds may in no event be issued by its commissioners until authorized by vote of the electorate. Article 2, § 5. 1. JUSTICES OF THE PEACE (§ 166*)—JURISDICRecognizing that rule, the appellants made no attempt to submit the bond issue contemplat-a justice of the peace, the county court dismissWhere, on appeal to the county court from ed thereby until the attitude of the electorate ed the appeal because no final judgment was toward the ordinance as a whole was dis- rendered by the justice of the peace, the disclosed; since the issuance of bonds with missal left the case in the justice's court, and he could proceed to trial thereof. which to construct the proposed plant depended upon the adoption of the ordinance authorizing both. At the first regular elec-166.*] tion after the adoption of the ordinance, be-2. JUSTICES OF THE PEACE (§ 162*)—APPEAL— TRIAL DE Novo. ing the only election at which bond issues may be approved or rejected, the next successive step under the ordinance was taken, that of submitting to the electorate the bond issue contemplated thereby. Until the electorate had voted upon the issuance of the bonds made necessary by the provision in the charter requiring all bonds to be so voted upon the ordinance was incomplete and unfinished, since by its exact provisions a subsequent election upon a bond issue to perfect and complete its purpose was contemplated. TION. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 638-646; Dec. Dig. § An appeal from a justice's court to the county court abrogates the judgment of the justice's court and puts the case in the county court for trial de novo. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 600, 603, 605; Dec. Dig. § 162.*] 3. VENUE (§ 32*) PLEA OF PRIVILEGE Defendant, by pleading a counterclaim and going to trial without calling his plea of privilege to the attention of the court, waived it. [Ed. Note.-For other cases, see Venue, Cent. Dig. 88 47-50; Dec. Dig. § 32.*] Appeal from Coke County Court; G. S. Arnold, Judge. Action by L. Dawson against F. L. Harper. Judgment for plaintiff, and defendant appeals. Affirmed. See, also, 140 S. W. 385. R. B. Truly, of Ballinger, for appellant. S. B. Kemp, of Robert Lee, for appellee. [3] Beyond and beside what we have just said, and conceding that the ordinance last submitted to the voters was independent of, and not contemplated by, the initiative ordinance, the result in the last analysis will surely be the same. The Dallas charter provides that every proposition to issue bonds, however originated, shall be submitted to the property taxpayers of the city, by ordinance prescribing the time, manner, and place of election for that purpose. Dallas Charter, art. 2, § 5. Such an ordinance was prepared and submitted to the voters, which contained the provision that the bonds, if voted, would be used to procure the money necessary to establish the lighting plant authorized by the first ordinance. This last ordinance, on the face of the returns of the election, was adopted. By judgment of the district court it is decreed, as matter of fact, that it was not. Thus whether the bonds shall be issued or not ultimately depends upon the result of the election contest, and as RICE, J. Appellee on the 11th of April, 1911, brought suit in the justice's court against appellant, where he recovered judgment from which an appeal was taken to the county court, where judgment also went in his favor, from which appellant prosecuted an appeal to this court, which was dismissed on motion of appellee for the reason that there was no final judgment entered in the county court. See Harper v. Dawson, 140 S. W. 385, for a full statement of the case. On return of the mandate to the county court, appellee moved to dismiss the appeal the record fails to show that this plea was called to the attention of the court, and therefore it must be regarded as waived. Finding no error in the proceedings of the trial court, its judgment is in all things affirmed. Affirmed. PUGH et al. v. PUGH. (No. 5372.) (Court of Civil Appeals of Texas. Austin. May 20, 1914.) and withdraw the papers on the ground that | Kolp v. Schroeder, 131 S. W. 860. Besides, no final judgment had been entered in the justice's court, which was granted. Thereafter, on the 10th of May, 1913, plaintiff in the justice's court moved for trial, which was resisted by appellant on the ground that the case was not pending in that court. This objection was overruled, and the case tried on its merits before the court without a jury, resulting in a judgment in behalf of appellee, from which an appeal was taken to the county court. On trial in that court appellant in limine presented his plea in abatement, urging that this case was not properly in the county court, for the reason that the same had been heretofore disposed of in that it had been dismissed both from the Court of Civil Appeals and the county court; but this plea was overruled and the case tried before the court without a jury, resulting in a judgment in behalf of appellee in the sum of $100.45, from which this appeal is prosecuted. [1, 2] The first assignment urges that the court erred in failing to sustain appellant's plea in abatement. We think there is no merit in this contention. The record shows that there was no final judgment in the justice's court in that it failed to dispose of appellant's counterclaim. Without a final judgment, no appeal can be taken from the justice to the county court. See article 2391, R. S. 1911. And, in the absence of such 1. APPEAL AND ERROR (§ 559*) - RECORD ON APPEAL STATEMENT OF FACTS-REQUISITES. A statement of facts should only contain the testimony that was admitted and the objections made thereto, and a statement of facts which sets forth evidence sought to be introduced, objections thereto, and the sustaining of the objections, disregards the rule defining the requisites of a statement of facts, and may on motion be stricken out. [Ed. Note.-For other cases. see Appeal and Errors, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.*] 2. APPEAL AND ERROR (§ 559*) QUESTIONS REVIEWABLE-BILL OF EXCEPTIONS-REQ UISITES. statement of facts, is the proper place to show In the bill of exceptions, and not in the that testimony was excluded, when the party complaining desires to have the ruling reviewed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.*] 3. APPEAL AND ERROR (§ 557*) RECORD 4. APPEAL AND ERROR (§ 655*) — RECORD ON APPEAL-DEFECTS-ESTOPPEL. Appellee, who agrees to a statement of facts, is not thereby estopped from moving to strike it out for failure to comply with the law and the rules regulating statements of facts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § 655.*] final judgment, it becomes the duty of the county court to dismiss the appeal. See Sapp v. Anderson, 135 S. W. 1068, and authorities there cited. This dismissal left the case It is the duty of appellant to see that the pending in the justice's court, and the court statement of facts is properly prepared. correctly proceeded to trial thereof. If the [Ed. Note.-For other cases, see Appeal and case had been properly appealed from the jus-Error, Cent. Dig. §§ 2480-2482; Dec. Dig. § 557.*1 tice to the county court, and appellee had voluntarily dismissed his appeal, then appellant's contention would be correct, because the appeal, under such circumstances, abrogated the judgment of the justice's court and put the case in the county court for trial de novo, and, if it is then dismissed by plaintiff, the case would be at an end. See Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; W. U. Tel. Co. v. McKee Bros., 135 S. W. 658; Woldert Grocery Co. v. Booneville Elevator Co., 99 Tex. 581, 91 S. W. 1082; Harter v. Curry, 101 Tex. 188, 105 S. W. 988; Roberts v. McCamant, 70 Tex. 743, 8 S. W. 543. But the appeal in this case was dismissed by the county court on the ground that it had never acquired jurisdiction of the case, because there was no final judgment in the justice's court from which an appeal could be taken. 5. APPEAL AND ERROR (§ 1133*)—QUESTIONS REVIEWABLE-STATEMENT OF FACTS. Where a statement of facts cannot be con sidered, so as to make it appear that error complained of in appellant's brief was committed, the judgment must be affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.*] Appeal from District Court, Anderson County; John S. Prince, Judge. Action between J. A. Pugh and another and Mrs. Margaret S. Pugh. From a judgment for the latter, the former appeal. Motion to strike out statement of facts sustained, and judgment affirmed. [3] We overrule appellant's second assignment of error, urging that the court erred in failing to sustain his plea of privilege, for the reason that this plea must be regarded as waived and abandoned for two reasons: Funderburk & Strickland, of Palestine, First, because appellant in the justice's court for appellants. Gregg & Brown, of Paleson the first trial pleaded a counterclaim. See tine, for appellee. [3, 4] It is well settled, as shown by some of the cases just cited, that it is the duty of an appellant to see that the statement of facts is properly prepared, and that an appellee, by agreeing to such statement, does not estop himself from moving to strike out for failure to comply with the law and rules regulating such matters. [5] As the statement of facts cannot be considered, we cannot hold that the trial court committed reversible error in regard to questions presented in appellants' brief; and, it not being made to appear that such error was committed, the judgment appealed from is affirmed. Affirmed. KEY, C. J. In this case we sustain appel- I consider such omissions in passing upon the lee's motion to strike out the statement of motion. And, so considering the matter, we facts. The motion referred to complains be- have reached the conclusion that there was cause only one statement of facts was filed in such a flagrant disregard of the law and the the court below, while the statute requires rules regulating such matters as renders it that two should be filed there, one of which our duty to sustain the motion and strike is required to be sent up with the transcript, out the statement of facts. Caswell v. Hopand the other to remain in that court; also son, 43 S. W. 547; Heidenheimer v. Tannenbecause it contains extraneous matters, baum, 23 Tex. Civ. App. 567, 56 S. W. 776; shown by the statement of facts itself not Railway v. Flanary, 45 S. W. 214. to have been admitted in evidence, and covering a considerable number of pages thereof. [1] The statute now in force requires the appellant to file statement of facts in the trial court in duplicate; and while we are inclined to agree with the holding in Witherspoon v. Crawford, 153 S. W. 633, that the statute is, in a certain sense, mandatory, in view of the facts shown in this case in reply to the motion, we might not hold that the failure to comply with that statute in this case does not constitute of itself sufficient ground for striking out the statement of facts. But the other objections to the statement of facts are serious and well founded; for instance, about seven pages contain a copy of a judgment, objection made to its introduction, arguments made pro and con in reference to its admissibility, and remarks made at different times by the trial judge, the final result being that the objection was sustained and the document referred to not admitted in evidence. Though not covering as many 1. APPEAL AND ERROR (§ 267*)—Review—Expages, the statement of facts shows that the same procedure was gone through with reference to an order of sale, which was not admitted in evidence; also, though not pointed out in the motion, similar procedure was had in reference to other testimony which was excluded. By this we mean that the statement of facts shows that objections were made to the admissibility of other testimony, and remarks made by the attorneys upon such objections, which testimony was excluded. Nothing can properly be incorporated in a statement of facts except testimony that was admitted in evidence, together with objections made thereto. CONNELL v. NICKEY et al. (No. 611.) CEPTIONS. An exception embodied in an order overruling a motion for a new trial is sufficient to authorize a review of the judgment, without a special exception to the judgment. Error, Cent. Dig. §§ 1447, 1460, 1572-1578, [Ed. Note.-For other cases, see Appeal and 1581; Dec. Dig. § 267.*] 2. JUDGMENT (§ 143*)-DEFAULT-VACATIONFRAUD. the appearance term and defend because they Where defendants neglected to appear at were informed by their attorneys that the case was settled and either had or would be dismissed, which was in fact untrue, and a default judgment was thereupon entered, the attorneys' misrepresentation, whether due to mistake or fraud, was not mere negligence, which would be imputed to complainants, but constituted fraud in law, for which complainants were entitled to have the judgment set aside in equity. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.*] 3. JUDGMENT (§ 809*)-PROCEEDING IN REMENTRY-TIME. Ordinarily where an action is brought against a nonresident by attachment of property located within the state, judgment will not be rendered until jurisdiction and service time before the court convenes for the term at has been procured for the required length of which judgment is rendered. [2] In the bill of exceptions, and not in the statement of facts, is the proper place to make it appear that certain testimony was excluded, when the complaining litigant desires to have that ruling reviewed by an appellate court. In fact, instead of condensing, as required by the rules, the stenographer's notes seem to have been adopted. In fact, it is reasonably certain that, if the statute and rules regulating the matter had been complied with, the statement of facts could have been reduced in volume one-third, if not one-half; and while it is true that the motion to strike out does not embrace all of the objections referred to, we hold that, inasmuch as the rules were made for the purpose of facilitating the dispatch of busiWhere jurisdiction is sought to be acquired ness in the appellate courts, it is proper to in a proceeding in rem by attachment, the sei [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1434; Dec. Dig. § 809.*] 4. CONSTITUTIONAL LAW (§ 309*)-DUE PROCESS OF LAW-PROCEEDING IN REM-JURISDICTION-NOTICE. [Ed. Note.-For other cases, see Discovery, Cent. Dig. 88 84-86; Dec. Dig. § 70.*] zure of the property placed it within the juris- | plainants to testify, and in not regarding the diction of the court; but due process of law interrogatories as confessed. requires that the owner shall have an opportunity to be heard on the claim sought to be subjected, to which end some notice of the proceedings, beyond that arising from the seizure, prescribing the time within which appearance must be made is essential. was Where a suit was brought against nonresidents, and at the appearance term changed to a proceeding in rem by the attachment of real property within the jurisdiction, and defendants did not appear because of notice from their attorneys that the case had been settled and would be dismissed, whereupon plaintiff at the same term took judgment by default, without further notice of the change in proceedings, plaintiff's manner of taking judgment, without notice, refuted the imputation of negligence on defendants' part in failing to appear. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. 143.*] 6. Vendor and Purchaser (§ 16*)-CONTRACT -MEETING OF MINDS. The owner of land offered to sell for $8,000, $4,000 cash, and the balance in two equal payments of $2,000 in one and two years, to be secured by vendor's lien and deeds of trust signed by the purchaser and his wife, the papers and cash payment to be deposited in a bank of the vendor's home town, and when so deposited the vendor agreed to execute a deed to the land. In the vendor's first letter she expressly stated she would not be bound by the letter until after she heard from the purchaser that the deal was closed and the papers on the way, and she would not obligate herself to hold the trade open until she knew the land was sold. The purchaser did not accept these terms, but sent to the designated bank a contract for the sale of the land and a check for $300, which he thought was sufficient compensation for an option on the land in case he failed to take it. The vendor refused to sign the contract so sent, but insisted the procedure should be as required by her first letter. In reply the purchaser stated that, if N. wanted to close the deal according to his proposition, she should sign the contract in duplicate, keep one and return the other, collect the $300 check, and, if he failed to comply with the contract, retain the same as a forfeiture. This was refused by a letter from N.'s husband, who stated that they would call the deal off. Held, that there was no contract of sale. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.*] 7. HUSBAND AND WIFE (§ 193*) LAND-CONTRACT TO CONVEY. WIFE'S 9. APPEAL AND ERROR (§ 548*)-STATEMENT OF FACTS-OMISSION-REVIEW. In the abence of a statement of facts, an objection that the court's findings are not supported by the evidence will not be reviewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*] Appeal from District Court, Deaf Smith County; D. B. Hill, Judge. Suit by L. F. Nickey and wife against E. F. Connell and others. Judgment for complainants, and defendant Connell appeals. Affirmed. W. H. Russell and Knight & Slaton, all of Hereford, for appellant. Reeder & Dooley, of Amarillo, for appellees. This case HUFF, C. J. This suit was brought by the appellees, L. F. Nickey and his wife, L. M. Nickey, against E. F. Connell, appellant, W. H. Russell, and Roy F. Barber, in which they sought to set aside and enjoin other proceedings under a certain default judgment rendered in the district court of Deaf Smith county in favor of the appellant, E. F. Connell, and against L. F. Nickey and L. M. Nickey, on November 25, 1912. was tried in the court below, without a jury. The court rendered a judgment therein, vacating and setting aside the default judgment, and perpetually enjoining any further proceedings thereunder. The case is in this court alone upon the findings of fact and conclusions of law filed by the trial court, and without a statement of facts. The case will be sufficiently understood from the findings of the trial court, which are as follows: Findings of Fact. "First. On May 1, A. D. 1912, the defendant herein, E. F. Connell, filed his original petition in the district court of Deaf Smith county, Tex., against the plaintiffs herein, L. F. Nickey and Lizzie M. Nickey. Connell's suit was numbered 498, and styled E. F. Connell v. L. F. Nickey et ux., on the docket of this court. In said original petition E. F. Connell alleged in substance: (1) That the Nickeys owned sections of land Nos. 140-146, in block M-7, Castro county, Tex. That on or about March 2, 1912, the Nickeys made a proposition to E. F. Connell to sell him said land for $8,000, $4,000 cash, balance in vendor's lien notes of $2,000 each, due one and two years, with interest, Connell to place $300 earnest money in bank at Mansfield, La., and Nickeys would send their agent to Hereford, Tex., to close said deal. (2) That he (Connell) accepted the proposition, and in all things complied with the terms thereof, by putting up the $300 earnest money in said bank, etc. (3) That the Nickeys failed and refused to carry out their contractbreached same by refusing to convey the land and take the money and notes, etc. (4) He prayed judgment for the land in specific performance of the contract by the Nickeys, and, in the alternative, for his damages in the sum of $5,200. "Second. On June 5, 1912, in vacation, E. F. Connell filed his first amended original petition, |
