
    ANDERSON v. OWEN.
    (No. 8572.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 29, 1924.
    Rehearing Denied Dec. 11, 1924.
    Second Rehearing and Motion to Certify Dismissed Feb. 5, 1925.)
    I. Landlord and tenant <&wkey;258 — Defendant not entitled to judgment fixing or foreclosing landlord’s lien where no such relief was sought.
    Defendant, in suit to recover personal property or its value, was not entitled to judgment fixing or foreclosing landlord’s lien, where foreclosure of landlord’s lien was not sought in such suit or an earlier suit to foreclose mortgage through which he claimed title.
    2. Jury <&wkey;13l (D — Counsel may examine jurymen on voir dire as to relationship with opposing counsel.
    Counsel may examine jurymen on voir dire as to acquaintance and relationship with opposing counsel.
    3. Jury <&wkey;!3l (2) — Refusal to permit counsel to withdraw acceptance of jury and examine jurors further held not abuse of discretion in absence of showing of prejudice.
    Refusal to permit counsel to withdraw acceptance of jury and again- examine them as to acquaintance and relationship with counsel for adverse party, who came into case after acceptance of jury, and was intimately acquainted with one juror, held not abuse of discretion in the absence of a showing of probable prejudice.
    Appeal from District Court, Harris County ; Ewing Boyd, Judge.
    Suit by John M. Owen against Christian Anderson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lewis Wood and Leon Weinberg, both of Houston,'for appellant.
    K. C. Barkley, Ered L. Perkins, and W. Owen Dailey, all of Houston, for appellee.
   LANE, J.

Appellee, John M. Owen, brought -this suit against appellant, Christian Anderson, to recover certain personal property or its value.

By the plaintiff’s first amended petition, filed on the 21st day of March, 1923, upon which he went to trial, he alleged that one Pfeifer was indebted to him in the sum of about $750, and that to secure the payment of same he gave plaintiff a mortgage upon certain personal property belonging to him of the reasonable value of $1,000, ánd that thereafter Pfeifer transferred the title of said property to plaintiff so that plaintiff might sell the same to pay said debt of $750; that the defendant, Anderson, had taken possession of said personal property, and converted the same to his own use, to the damage of the plaintiff in the sum of $1,000. The prayer was for judgment against Anderson for possession of the property, or, in the alternative, for judgment against Anderson for the amount of the debt due to him by Pfeifer.

Defendant answered by general denial, and specially pleaded that the property sued for was in a house owned by him which he had leased to Pfeifer, and that Pfeifer owed him for rental of said house on the 1st day of April, 1920, and that on said date Pfeifer gave him a mortgage on the property sued for to secure payment of the rent then due, and such as might thereafter become düe; that said mortgage was immediately duly filed as required by law; that said mortgage had never been released or satisfied, but to the contrary was in full force and effect; that on the 28th day of April, 1922, he sued Pfeifer for $350, said amount being due'him as rents for said bouse; that in said suit be bad judgment for $291.70, and a foreclosure of bis mortgage; that tbe property was sold under said judgment and purchased at sucb sale by a third person, and that be purchased tbe same from such third person. He alleged that bis mortgage was prior to the mortgage of plaintiff, and that be bad never executed a release of tbe same.

By supplemental petition plaintiff alleged that in consideration of bis paying to tbe First National Bank of Houston a balance due on a note for $500, executed by Pfeifer as, principal and defendant as surety, defendant executed to Pfeifer a release of bis, defendant’s, mortgage; and that, at tbe time defendant brought his suit in which he took judgment against Pfeifer for $291.70, with foreclosure of bis mortgage, plaintiff’s mortgage bad been and was then duly filed in tbe mortgage records of Harris county; that plaintiff was not a party to tbe suit of defendant against Pfeifer.

Tbe cause was tried before a jury, which, in answer^ to special issues submitted to them, found that defendant Anderson did execute and cause to be delivered to Pfeifer a release of the mortgage given by Pfeifer to him, and that the property mortgaged to tbe plaintiff, Owen, and which was taken possession of by defendant, was of tbe value of $590.67.

The court rendered judgment upon tbe findings of tbe jury'in favor of tbe plaintiff for $590.67 against the defendant, and from sucb judgment the defendant has appealed. Tbe evidence was sufficient to sustain tbe findings of tbe jury, and we therefore.overrule tbe assignments of appellant attacking said findings.

There is nothing in tbe record to show that appellant, Anderson, in this suit, or tbe one filed by him against Pfeifer in 1920, sued for a foreclosure of a landlord’s lien. He is therefore not entitled to a judgment fixing or the foreclosure of any sucb lien as now contended for by him.

Appellant makes tbe further contention: That tbe judgment should be reversed because tbe court erred in not permitting bis counsel to withdraw tbe list of jurors which bad been selected by both parties for tbe purpose of questioning them, or any of them, as to their acquaintance and relationship with Mr. Perkins, an attorney who bad come into tbe case on the side of appellee after tbe lists bad been banded in, in that, when Mr. Perkins came into tbe courtroom, there seemed to be familiarity between him and one or more of the jurors selected. That in making his opening argument for tbe plaintiff, Mr. Perkins addressed one of tbe jurors, a Mr. Callahan, and said in substance:' “Mr. Callahan, you and I have been intimate friends for 12 years, and I leave it to you.” That had counsel for defendant' been allowed to withdraw bis list, and exercise bis per--emptory challenge, which bad not been exhausted, be would have stricken tbe name of Callahan from the jury list.

We cannot sustain this contention. While it is admissible for counsel to examine tbe jurymen on their voir dire as to their acquaintance and relationship with counsel on tbe opposing side of tbe case, and exercise their peremptory challenge, it should not be held, we think, that tbe court in this case abused bis discretion in refusing to permit counsel to withdraw bis acceptance of tbe jury, and again examine them as to their acquaintance and relationship with counsel who came into tbe case after the acceptance of tbe jury. Before appellant would be entitled to a reversal of tbe judgment upon tbe grounds urged be must show that he probably suffered injury by tbe ruling of the court complained of. No such showing is made. It certainly cannot be held that a showing that one or more of the jurymen were intimately acquainted with counsel on the opposite side is a showing of probable injury. It can hardly be presumed that tbe friendship of a juror to counsel would induce him to disregard tbe law and evidence and bis oath as a juror.

We. conclude that tbe court did not, under tbe facts stated, abuse bis discretion in refusing to permit counsel to withdraw acceptance of tbe jurymen already impaneled. Therefore, sucb action of tbe court constitutes no cause for a reversal of tbe judgment.

We have examined and considered all of the assignments of appellant, and having found no reversible error, tbe judgment is affirmed.

Affirmed. 
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