ceased to be a policeman de jure, and that as to constitute him a policeman de jure, thereupon the liability of the city for his or entitle him to recover for services which salary as such de jure officer terminated. he never rendered. In that opinion, referAnd, under the facts of that case, as disclos- ring to Cabiness, the court did, indeed say: ed by said opinion, Albers having been paid "He was recognized under the appointment in full for all services rendered during said made, and his salary paid by appellant for three two years and afterwards down to date of months without objection, and without any question being raised concerning the legality of his discharge, it was really immaterial, on his appointment so far as disclosed by the recappeal, whether Albers, during that period, ord. Under these facts it seems clear that he behad been an officer de jure or an officer de came an officer de jure, and entitled to hold the facto; and, inasmuch as he had not been re-office to which he had been appointed for two years, unless lawfully ousted." appointed after the expiration of his original term, it was likewise immaterial whether that office had any legal existence since, in any event, after the expiration of that term, he was therefore not an officer de jure, and consequently was not entitled to recover for services not actually rendered. From a comparison of the opinion in the Albers Case with that in the Coultress Case, and although in each instance the number of policemen had not been fixed by charter or ordinance, and in each instance the suit was by one claiming to be a policeman de jure for salary for a period of time subsequent to his discharge (the Albers suit being also for salary covering a period of suspension embracing 15 days prior to such discharge, but subsequent to expiration of his original two years' term of office), it seems too clear for argument that between them there is no statutory conflict upon any holding by the Court of Civil Appeals upon the general de murrer. Second. Question 2 may be treated as including both counts of plaintiff's petition in the Coultress Case, the first as presenting the theory of a de jure status resting upon allegations of compliance with all requirements of law, including charter and ordinances, coupled with regular appointment and qualification and with service in office, and the second as presenting the theory of a de jure status resting upon allegations of appointment and qualification and service as policeman down to date of discharge, coupled with subsequent recognition by the city, through its city council, of his status as a policeman, even though it be held that a strict compliance with law and charter provisions, including the establishment of the police force by the city council by an ordinance fixing its number, was lacking. Upon the first branch of question 2 our views have been sufficiently expressed above in treating question No. 1, and a portion of what we said there applies to the second branch thereof. The second branch of that question rests, apparently, upon the idea that plaintiff's status was affected by action of the city authorities recognizing and treating him as a de jure officer. Applying it to the Cabiness Case, we are unable to find that plaintiff there contended, or that it was held, that, even though it should be decided that the office of policeman had not been properly created, or that his appointment was in from its place in the context and considered But that portion cannot fairly be wrenched In considering the meaning and force of said excerpt, it must be remembered that the court was then dealing with the third assignment of error, which complained of the action of the trial court in sustaining special exceptions to and striking out portions of defendant's original answer, which set up the following defenses: (a) That the city council had never passed any ordinance or resolution making effective the charter powers relating to the creation of a police department or the appointment of policemen, duties of policemen had been prescribed, and and that neither the term of office nor the that policemen were subject to removal at will and without notice; (b) that, pursuant to said charter, the city council had adopted for its government rules which had been disregarded in the appointment of plaintiff to said office; (c) that, in consideration of his appointment as policeman, plaintiff contracted with defendant that either the city marshal or the city council might discharge plaintiff, at any time, with or without notice or cause. The actual viewpoint and conclusions of that court as to the merits of said pleas are more clearly shown as follows: separately as a basis of conflict in decisions. of the alleged grounds of defense mentioned "We are of the opinion, however, that neither constituted any sufficient reason for denying to appellee a recovery. Section 27 of appellant's charter conferred upon its city council the power and authority 'to appoint watchmen and policemen, and prescribe their duties and powers and compensation.' This provision of the charter was self-executing and required no resolueffective. Nor do we think mere irregularities tion or ordinance of the city council to make it in the proceedings by which appellee was appointed, if any, can be taken advantage of by the city and urged as distinct grounds upon the salary incident to said office. Besides, it which to defeat his otherwise right to recover does not appear that his discharge was based upon any such ground. He qualified and entered upon the discharge of his duties. He was his salary paid by appellant for three months recognized under the appointment made, and without objection, and without any question being raised concerning the legality of his apUnder these facts it seems clear that he became pointment, so far as disclosed by the record. an officer de jure, and entitled to hold the office to which he had been appointed for two years, unless lawfully ousted"; citing cases. Undue stress should not be laid upon the statement that Cabiness was recognized under his appointment as a policeman, and re objection or question concerning the legality of his appointment. Evidently it was made in disposing of the city's contention (b) above, under the third assignment, which contention, in effect, assailed Cabiness' status as a de jure officer upon the ground that the irregularities there urged rendered his election to the office of policeman invalid, even though it should be held that the office had been duly created or recognized by the charter, that instrument being self-executing, and no ordinance being necessary to the existence of that office. And it was probably with that thought in mind, as well as with reference to the duration of Cabiness' term as a de jure officer, that the court cited City of Houston v. Estes, 35 Tex. Civ. App. 99, 79 S. W. 848, wherein Estes was held to have been an officer de jure despite certain irregularities in the giving of a bond, concerning which complaint was not seasonably made. In other words, it seems to us that the immediate purpose of the court there was merely to apply to said plea (b), concerning irregularities in the election or appointment of Cabiness, the principle which, in that cited case, had been applied to the qualification of Estes, that principle being that where the office exists legally, such mere irregularities, when acquiesced in, will not reduce to the status of a merely de facto officer the incumbent who, but for such irregularities, would be a de jure officer. Furthermore, in considering the effect of the language found in said first excerpt, it should be constantly borne in mind that it followed the holding upon the city's contention (a), above, to the effect that the charter provision relating to the appointment of policemen was self-executing, requiring no resolution or ordinance by the city council to make it effective -a holding which, under the uncontradicted evidence, resulted in the further conclusions and holdings that "appellee was duly appointed or elected policeman on the 27th day of April, 1903, by its city council and qualified," which holdings together, and without regard to whether the city did or did not pay his salary for three months, constituted a reasonable and adequate predicate for the ultimate conclusion there announced by the court that, under the facts of the case, Cabiness clearly * ** "became an officer de jure, and entitled to hold the office to which he had been appointed for two years, unless lawfully ousted." Certainly the words, "became an officer de Jure," would seem strangely inappropriate in defining the status of the incumbent of an alleged office which had no legal existence, and the words, "the office to which he had been appointed," would have been palpably inappropriate in that connection, and those expressions would hardly have been used by that learned court had its purpose been to there declare and hold that, in the absence of pointment thereto, which was at least substantially effectual although somewhat irregular, the recited facts that he was recognized and paid by the city as a policeman would constitute him an officer de jure, and entitle him to the emoluments of that office during its term. Plainly, we conclude, the legal effect of the above quoted portion of said opinion, treating said third assignment and embracing said first excerpt, is to hold, merely: (a) That the three defenses therein mentioned had not been abandoned by failure to replead them, and were properly up for review, the city having seasonably made and duly brought up its exceptions to the action of the trial court in sustaining special exceptions to said defenses; but (b) that none of the three pleas was meritorious. The citation of cases was such, we think, as to support our conclusion. Consequently, so far as we have discovered, the decision in the Cabiness Case involves no holding whatever upon the point embraced by the second branch of question 2; wherefore it seems impossible for "conflict" to exist between that decision and that portion of the opinion in the Coultress Case which we have treated as involving that point. Nor does this second branch of question 2 seem to have been involved in the Albers Case, except in connection with the action of the city council upon Albers' appeal from the order discharging him, whereby that body "determined, by a vote of 10 to 2, that plaintiff had been wrongfully discharged from the service of the city, and it was recommended that he be reinstated in his former position and be paid in full for the time lost by him.” In that connection it must be remembered that Albers' allegations, relating to his appointment and confirmation, taking the oath of office, giving bond and approval thereof, referred, primarily, to his original term of office, which was held to be two years, and that upon the view that, under the charter and ordinances, there was no succession in the office of policeman pursuant to which he might continue in office until his successor qualified, coupled with the finding of fact that he was never reappointed, it was held that after the expiration of his term of office he was no longer an officer de jure. Upon the effect, if any, of the above-mentioned action of the city council concerning Albers' discharge, no specific holding seems to have been made; but the plain purport of the decision seems to be that such action by the council, whether considered separately or in conjunction with the antecedent facts and circumstances of the case, including his declaredly valid appointment, qualification, and service for two years, was insufficient to make his status, after the expiration of that term, that of a de jure officer. Under the opinion in the Albers Case there is certainly no room to contend that therein The appeal in the Cabiness Case involved three, and only three, issues relating to plaintiff's discharge: (a) Discharge pursuant to his said contract with the city therefor, which was held void as against public policy; (b) discharge by the city marshal, which the court found to have been without a hearing or trial, and held to have been without authority of law; (c) an incidental question as to whether the city had notice that plaintiff had been discharged by its city marshal, upon which it was held that the city had sufficient notice and adopted and ratified said act of discharge. Evidently none of those three questions, relating to discharge, was involved in the Coultress Case; consequently there was no conflict thereon. ities, even when considered in connection | teriality was the only one relating to diswith the other facts of this case, constituted charge. him an officer de jure, after expiration of the two years; hence, upon that feature, there is no conflict between that decision and the decision in the Coultress Case. On the contrary, and even upon relator's assumption that Coultress' petition alleged, and that the facts showed, the making by the city council, after date of his discharge, of specific appropriations for his salary, an assumption directly in the face of the final findings of fact, the effect of the decision in the Coultress Case was that, nevertheless, he was not thereby, nor in connection with the other facts of that case, including his attempted appointment and qualification and service, constituted an officer de jure; and that holding as to the legal effect of the facts and circumstances upon Coultress, status during the period of time covered by his claim for compensation was not in conflict, but was in strict harmony, with the decision upon the corresponding feature of the Albers Case. We deem it proper to suggest that, in the event of the filing of such actions in the future, the time of this court may be conserved by more definite and specific statements by relators, alleging conflict. Because, in our opinion, relator's claim of conflict is without merit, the writ of mandamus is denied. Third. Coming, finally, to question 3, we find in the Coultress appeal no holding on any question involving the legality of plaintiff's discharge common to that in either of the other two cases mentioned by relator; consequently there can be no conflict there- A. A. FIELDER LUMBER CO. v. GAMBLE. (No. 7403.) (Court of Civil Appeals of Texas. Dallas. APPEAL AND ERROR 781- DETERMINATION Where the controversy between the parties has been settled pending appeal, the appeal will be dismissed, the question being moot. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. -781.] Appeal from District Court, Grayson County; James P. Haven, Judge. Action between the A. A. Fielder Lumber Company and J. R. Gamble. From a judgment for the latter, the former appeals. Appeal dismissed. Webb & Webb, of Sherman, for appellant. on. Question 3, as framed, involves, or assumes, a construction in the Coultress Case of the legal effect of section 17 of the San Antonio special city charter. Manifestly that question of construction was not involved in the Cabiness Case, which arose under the Paris charter, nor in the Albers Case, which arose under the Houston charter, neither of which is shown to have contained an identical or even a similar provision. And it seems that the opinion in the Coultress Case does not even attempt to construe said section 17; and, indeed, under the view which prevailed in that decision, and under the holding there made, which, as we have seen, was to the effect that Coultress never became an officer de jure, the question of whether his attempted discharge was legal or not became and was wholly immaterial in that cause, just as the corresponding question was held to be immaterial in the Albers Case, the court having there held, as was held in the Coultress Case, that plaintiff was not an officer de jure during the period of time covered by his claim for compensation, the plaintiff in each instance having received full pay for all services actually rendered. Indeed, in each of those cases, under the Where parties have settled their controverholdings made therein, respectively, any de- sies this court will not pass upon matters cision or holding therein as to the legality which have been settled by agreement. The or illegality of plaintiff's discharge would subject-matter having ceased to exist, the have been dictum, upon which conflict under case will be dismissed, and it is so ordered. said article 1623 could not be predicated. Ansley v. State, 175 S. W. 470, decided by In the Albers Case, said holding of imma-this court April 3, 1915. RAINEY, C. J. The subject-matter in controversy having been settled and determined by the parties since this appeal was perfected, there remains nothing but a moot question for this court to decide; such being the situation the court will not occupy its time by investigating the question raised for the mere purpose of determining who was right in the litigation. fourth, fifth, and eighth assignments are also SAN ANTONIO, U. & G. RY. CO. et al. v. based on the evidence and must be overruled. YARL ROUGH. (No. 5503.) (Court of Civil Appeals of Texas. tonio. Oct. 13, 1915.) 1. APPEAL AND ERROR 569-ASSIGNMENTS OF ERROR-STATEMENT OF FACT-APPROVAL. Without a statement of facts approved by the trial judge, assignments of error cannot be considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. 569.] That [2] The seventh assignment of error assails San An- the verdict because it did not dispose of the cross-action of appellants. The verdict must be construed in the light of the charge which instructed the jury that they should find for appellee, if they found he was not indebted to appellants, or if the amount in which he was indebted was less than the amount in which appellants were indebted to him. charge removes all objections to the verdict and makes it certain. The jury must necessarily have found that appellee was not indebted to appellants, or that, if he was, they owed him $600 more than he owed them. Garrett v. Robinson, 93 Tex. 406, 55 S. W. 564; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S. W. 1052; Cameron v. Lubbock, 147 S. W. 717. 2. TRIAL 331-VERDICT-DISPOSITION OF CROSS-ACTION. In an action for conversion against a railroad and another to recover the value of property, with a cross-action setting up plaintiff's indebtedness to defendants, a verdict for plaintiff for $600, construed in the light of a charge that the jury should find for plaintiff if he was not indebted to defendants or if his indebtedness was less than the amount of their indebtedness to him, removed all objections to the verdict on the ground of uncertainty and that it did not dispose of the cross-action. Ed. Note.-For other cases, see Trial, Cent. Dig. 783; Dec. Dig. 331.] 3. JUDGMENT 240- VERDICT-JOINT AND SEVERAL LIABILITY. Where the verdict found a joint liability against defendants, there was no error in a judgment decreeing a joint and several liability. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 423-425; Dec. Dig. 240.] Appeal from District Court, Bexar County; W. F. Ezell, Judge. Action by J. W. Yarbrough against the San Antonio, Uvalde & Gulf Railway Company and another, with cross-action by defendants. Judgment for plaintiff, and defendants appeal. Affirmed. Williams & Hartman, of San Antonio, for appellants. Don A. Bliss, of San Antonio, for appellee. FLY, C. J. Appellee instituted this suit to recover of the railway company and J. E. Franklin the value of certain tools and implements, which constituted a railroad contractor's outfit, which, it was alleged, had been converted to their use by appellants. The property was alleged to be worth the sum of $2,700 and appellee also sought the recovery of $1,000 as exemplary damages. The jury returned a verdict for $600, and judgment was accordingly so rendered. [1] The first assignment of error assails the verdict on the ground that the value of the property was not shown to be more than $600, and that appellee was indebted to Franklin in a sum equal to that amount. The statement of facts filed in this case is not approved by the trial judge, and consequently cannot be considered by this court. In every instance the statement of facts must be approved by the trial judge. Rivers v. Camp bell, 51 Tex. Civ. App. 103, 111 S. W. 190. Without a statement of facts, the assignment of error cannot be considered. The second, double recovery. Although the verdict found [3] The judgment does not provide for a a joint liability against appellants, there was no error in the judgment decreeing a joint and several liability. Kuykendall v. Coulter, 7 Tex. Civ. App. 399, 26 S. W. 748; Railway v. Crump, 32 Tex. Civ. App. 222, 74 S. W. 335. The judgment is affirmed. OCCIDENT FIRE INS. CO. v. LINN. (No. 7406.) (Court of Civil Appeals of Texas. Dallas. Oct. 16, 1915.) REVIEW 1. APPEAL AND ERROR 770 BRIEFS. Under court rule 40 (142 S. W. xiv) an appellant's brief may be accepted as a proper presentation of the case, without examination of the record contained in the transcript, where appellee files no brief. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig.770.] 2. INSURANCE 669- FIRE INSURANCE-ACTIONS EVIDENCE. Where there was testimony by a secondhand piano dealer that he had examined the instrument insured for $400, and considered its market value in the neighborhood from $150 to $200, and it did not appear whether the time referred to was before or after the fire, a requested charge that, the market value of the instrument not having been shown, plaintiff could not recover, was properly denied; it being as fair to assume that the testimony referred to the condition of the instrument after the fire as before. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. 669.] 3. INSURANCE 658-FIRE INSURANCE-ACTIONS EVIDENCE. Testimony as to the condition of the insured property more than 8 months after the fire is inadmissible in an action on a fire policy, without a showing that the condition was the same then as immediately after the fire. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1689, 1690, 1694; Dec. Dig. 658.] 4. APPEAL AND ERROR 1067-TRIAL gard appellant's brief, under rule 40 pre208-REFUSAL OF INSTRUCTIONS. scribed by the Supreme Court (142 S. W. xiv), as a proper presentation of the case without an examination of the record as contained in the transcript. Where the court erroneously denied a motion to strike incompetent evidence, the refusal of a charge to disregard such evidence was reversible error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. 1067; Trial, Cent. Dig. § 504; Dec. Dig. 208.] 5. INSURANCE 658- FIRE POLICIES-AC658-FIRE TIONS EVIDENCE. Where a piano was insured against fire, evidence in an action on the policy as to the cost of repairing its internal mechanism was improperly received, where there was no showing of that sort of damage. [2] The first assignment of error presented in appellant's brief complains that the trial court erred in refusing to give the following special charge requested by it: "The undisputed evidence shows that the piano covered by the policy sued on had a market value at Sherman, Tex., at the time the fire occurred. Plaintiff's measure of damages therefore is the difference between the market value [Ed. Note. For other cases, see Insurance, of the piano immediately before the fire and Cent. Dig. 88 1689, 1690, 1694; Dec. Dig. immediately after it was damaged. There being 658.] no evidence as to what the market value of the piano was immediately after the fire, you are Appeal from Grayson County Court; J. instructed that plaintiff has failed to prove the Q. Adamson, Judge. Action by W. C. Linn against the Occident Fire Insurance Company, begun in justice court, and appealed by defendant to county court. From a judgment there for plaintiff, defendant appeals. Reversed and remanded. Crane & Crane, of Dallas, for appellant. amount of his damage. You will therefore find charge was error: "Because the undisputed evidence showed that the piano in controversy had a market value in Sherman, Tex., at the time the fire occurred, and the plaintiff's measure of damages was the difference between the market value of same immediately before the fire and immediately after the fire, which is more fully set out in defendant's bill of exception No. 5." tention that there was no testimony showing what the market value of the piano was immediately after the fire is as follows: J. F. Kohler testified: ing, and have been for about 30 years at Sher"I am in the piano business, tuning and sellman. I buy and sell and trade pianos, and handle secondhand pianos. ** I examined the piano in Mr. Linn's house. It was an Ellington piano, made by the Baldwin Company, of Cincinnati. * *I considered the market value of that piano in the neighborhood of $150 or $200. That is what would be a fair price for it." TALBOT, J. The appellee has filed no brief in this case, and we copy from appellant's brief the following statement of the The evidence quoted in the statement unnature and result thereof: W. C. Linn, appel-der this assignment in support of the conlee, as plaintiff, instituted a suit against appellant, the Occidental Fire Insurance Company, of Albuquerque, N. M., in the justice court, precinct No. 1, Grayson county, Tex., upon a policy of insurance in the sum of $400, issued by appellant to his wife, Mrs. W. C. Linn, covering an upright Ellington piano located in appellee's residence in Sherman, Tex. He prayed for judgment for $165 damages alleged to have been caused by fire and water to the piano in a fire which occurred on August 1, 1913, together with attorney's fees. Appellant admitted that the policy was issued and that a fire occurred, but denied that the damages sustained to the piano amounted to $165. Trial before a jury in the justice's court resulted in judgment on April 21, 1914, for appellee in the sum of $125, and attorney's fees, to which appellant excepted, and gave notice of appeal to the county court of Grayson county, Tex. Appeal bond was duly filed within the time allowed by law. In the county court the pleadings of the parties were the same as in justice's court, plaintiff praying for $165 damages and attorney's fees, and defendant denying the amount of damage. The cause was tried before a jury, and resulted in a verdict for plaintiff in the sum of $134, and the court entered judgment accordingly. Motion and amended motion for a new trial were filed within the time required by law, which were by the court in all things overruled, to which the defendant excepted, and gave notice of appeal to this court. [1] Appellee having failed to file in this court any brief, we are authorized to re The testimony of the witness Kohler, as thus quoted in appellant's brief, does not show at what time he regarded the market value of the piano in question to be $150 or $200. It will be observe that he says he examined the piano in Mr. Linn's house, but it does not appear whether this was before or after the fire which is charged to have damaged the piano; neither does it appear that in speaking of the market value of the piano he had reference to its market value before or after the fire. For aught the statement shows, he may have had reference to the market value of the piano immediately after the fire which the plaintiff claims damaged it. It is certainly just as reasonable to conclude that he was speaking of the value of the piano after the fire as that he was speaking of it before the fire. Indeed, the inference is stronger, we think, that he was speaking of the value of the piano after the fire. In this attitude of the testimony the appellant has not sustained its assignment asserting that there was no evidence showing the market value of the piano im |