Weimhold v. Hyde

RANDOLPH, J. Appellee, as plaintiff, filed this suit in the county court of Lamb county to recover from appellant, as defendant, certain money alleged to be due him for his personal services, claiming a constitutional lien upon the equipment of the Sudan News, a newspaper published in Sudan, Lamb county, Tex., and praying for a foreclosure of such lien. Defendant raised the question of nonjoin-der of necessary parties defendant, by sworn plea, setting up the fact that he had complied with the “assumed name” statute; that his son, who was under 14 years of age, was his partner in said enterprise; also pleading payment of the account sued on and a cross-action for debt owing him by plaintiff. *900 On trial before a jury tbe court rendered judgment in favor of tbe plaintiff for tbe sum claimed by bim, for a foreclosure of bis lien, and also against tbe defendant on bis plea of want of necessary parties and on bis cross-action for debt. It is from that judgment tbe appeal is taken. Tbe defendant’s assignment of error, presenting tbe plea of nonjoinder of necessary parties because of tbe failure to make bis son, wbo was bis partner, a party, cannot be sustained. Tbe affidavit appellee filed witb tbe county clerk, that tbe assumed name. “Sudan News,” was used by tbe appellant and bis son as partners, rests upon the claim of such partnership witb a minor. Appellant accounts for bis son’s interest in tbe publication by testifying that the said son had paid for such interest witb money earned by bim from tbe sale of peanuts and pop corn. Tbe parent has tbe right to tbe services of bis minor son, and such right rests primarily upon tbe doctrine of compensation. Tbe parent, being legally bound to support bis infant child, is held to be entitled to its services during minority. Texas, etc., Ry. Co. v. Morin, 66 Tex. 225, 18 S. W. 503; Fort Worth Street Ry Co. v. Witten, 74 Tex. 202, 204, 11 S. W. 1091. Until tbe minor has been emancipated, iris earnings belong to bis father, and tbe creditors of tbe latter have tbe right to subject them and the property in which they are invested to tbe satisfaction of their claims. Harper v. Utsey (Tex. Civ. App.) 97 S. W. 509; Schuster v. Bauman Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. Rep. 327. There is no evidence of any emancipation of tbe minor in this case, and, tbe boy being of such tender age, none can be presumed. The assignment that tbe verdict of tbe jury is contrary to tbe evidence is top general for our consideration. This has been held so often that it is not necessary to cite authorities. Tbe assignment charging error on tbe part of tbe trial court in refusing to require tbe plaintiff while on tbe witness stand to answer tbe question, “Is it not a. fact that you now stand charged by complaint in Lamb county witb the making and cashing of bad checks?” cannot be sustained. Tbe trial court ruled correctly in refusing to permit tbe witness to answer this question. Tbe alleged purpose of tbe evidence was to impeach the witness, and such testimony is not admissible for' that purpose, and was wholly immaterial to any issue in the case. M., K. & T. Ry. Co. v. Creason, 101 Tex. 335, 107 S. W. 527. It was not necessary for tbe trial court to submit tbe issue as to whether or not tbe appellee' bad a lien on tbe equipment of tbe Sudan News. Beyond proof of tbe fact of tbe existence of the debt, which was found by tbe jury, and tbe fact of tbe labor having been performed, there was no way of submitting tbe question of constitutional lien to tbe jury. Tbe provision of the Constitution, article 16, § 37, is self-executing, and it was proper that tbe trial court, as a court of equity, should enter judgment, foreclosing such constitutional lien. Wichita Falls Sash & Door Co. v. Jackson (Tex. Civ. App.) 203 S. W. 100; City National Bank v. Laughlin (Tex. Civ. App.) 210 S. W. 617. Having considered all (assignments and proiDositions, and finding no reversible error, we affirm tbe judgment of tbe trial court.