This suit was brought in the first instance by Morris & Crawford against the Central & Montgomery Railroad Company and the Gulf, Colorado & Spita Fe Railway Company, to recover damages for a failure by the defendants to transport the lumber of plaintiffs on demand. The original petition was filed January 9, 1883. At the first term of the court the cause was continued by operation of law; at the second term, as upon "affidavit of defendant” (but of which defendant the record does not disclose); and at the third term the suit was dismissed, as to the Gulf, Colorado & Sánta Fe Railway Company, and judgment by default taken against the Central & Montgomery Company for want of an answer. That company now brings the case to this court by writ of error.
We shall discuss only the controlling questions in the case, and in doing so shall not observe the order of the assignments laid down in the brief for plaintiff in error.
The eighth assignment is that "the court erred in rendering judgment against this defendant, because the record shows no legal service of citation or process on this defendant,” At the first term of the court there was a motion to quash the citation by each of the defendant companies. That of the Gulf, Colorado & Santa Fe Company was sustained. The motion of the other company was overruled, and an exception taken by it and noted on the record. The cause was thereupon continued by operation of law. On the fifth of May, 1883, two alias citations were issued, which are copies of each other, except that in one the sheriff is *56commanded to “ deliver to the defendant, the Central Sc Montgomery Railroad Company, or their local agent at Montgomery, one R. A. Messick, a true copy of this citation;” in the other, in the corresponding part of the writ, the name of the other defendant company is used. The sheriff’s return is the same upon each citation, and is to the effect that he executed it “by delivery to R. A. Messick, at his office, during office hours, in the town of Montgomery, as local agent in Montgomery, Montgomery county, Texas, of the within named defendants, in person, a true copy of this writ.” The petition alleged that Messick was the agent of both companies, and it would seem to us in such case that, although the citations may be exactly the same, a copy for each of the defendants should be left with such agent. It is reasonable to presume that the law contemplated that the agent should transmit the copy served upon him to his superiors, and therefore a writ for each would be necessary for the purpose. Row, if the alias citations which were issued had been identical in language throughout, the sheriff’s return would have admitted of the construction that he had delivered but one copy, because a copy of the one would have been a copy of the other. But in this case there is a distinctive difference between the two citations actually issued; so that by the return indorsed upon each, that a copy of “this writ” had been delivered to the agent, we know that a copy of the citation for each defendant was served upon the agent. This would seem to be sufficient. The fact thát one citation issued for each defendant, when the statute directed that one should issue for all the defendants living in the same county, might render plaintiff responsible for the additional costs, but would not render the service void. (See Thompson v. Griffis, 19 Texas, 115.) The alias citation directed the sheriff to serve Messick as agent of defendant, the Central Sc Montgomery Company. The return described him as agent of both defendants. The agency having been averred in the petition, and the agent to be served being expressly named in the citation, we do not see that anything more was necessary to appear in the return than that the sheriff had delivered a copy of the writ to the person whom he was directed to serve. It is also urged that the citation is defective because it commands the sheriff to summon the Central & Montgomery Railway Company, whereas the petition is filed against the Central and Montgomery Railroad Company. It has been decided by this court *57that such a variance is immaterial. (Galveston, Harrisburg & San Antonio Railway Company v. Donohoe, 56 Texas, 162.)
But let it be conceded, for the sake of the argument, that the alias citation and service upon the alleged agent were not good. At the first term of the court the plaintiff in error moved to quash the service upon it", and its motion was overruled. The statute merely provides that if the service or citation is quashed upon motion of the defendant he shall be deemed to have entered his appearance to the succeeding term of the court. (Revised Statutes, 1243.) The result of this rule is that, whenever he appears and moves to quash the service, he is considered as having appeared to the merits of the next term, whether his motion be sustained or overruled. If properly overruled, he is in court from the time of the service. If improperly overruled, and the cause be continued, he is not prejudiced by the action of the court, for the reason that the continuance is the only advantage he would have obtained if his motion had been granted. The error in such case is immaterial, and is not a ground for a reversal of the judgment. It is the option of a defendant who thinks he is not duly served with process either to move to set it aside or to appeal from the judgment should one be rendered against him. There is no compulsion upon him to pursue the former course. Should he see proper to do so, it is not seen that the Legislature has infringed any of his constitutional rights by declaring in effect that his appearance to quash the writ or service shall at all events be deemed a good appearance for the next term should the cause be continued. The statute is a salutary one. It tends to the speedy disposition of causes, to the saving of costs, is conservative of the rights of the parties, and should be liberally construed and applied. We are of opinion, therefore, that plaintiff in error was properly in court, so far as the original petition was concerned.
But, after the cause was continued at the first term, and after the issuance and service of the alias citation, an amended original petition was filed. It is now contended that the amendment was such as required notice to defendant before judgment by default could be rendered upon it. It is expressly urged that the original petition showed no cause of action against plaintiff in error, and that when such is the case the defendant should be served with notice of any amendment, which makes the petition good. When no cause of action is set up it would seem that the defendant might well conclude the court would *58not render judgment upon the petition, and therefore give himself no further concern about the case. Hence it is to be inferred that he ought not to be required to take notice of any amendment to it, but that new process should issue. But we do-not feel called upon to decide that question, because we are of opinion that the original petition in this case did show a cause of action.
It is alleged that both of the defendant companies were corporations organized under the laws of the State, and were common carriers; that the Gulf, Colorado and Santa Fe Company, about June, 1882, took control of the road and property of the Central & Montgomery Company under a purchase, or claim of purchase, and had since operated the road; that during the season plaintiffs had delivered large quantities of lumber at the depot and demanded transportation, which had been refused, and closed with very specific allegations of damages. It is urged, among other things, that the points to which the lumber was to be carried, and the tender of the freight upon it should have been averred. In an ordinary case it may be that these allegations are proper and necessary, but here the complaint is not of damage, by reason of a failure to carry any specific lot of lumber, but it is for the continued withholding and refusal of facilities for shipping lumber to any place, whereby almost the entire product of plaintiffs’ mills were kept from market and sale. Plaintiffs, under the circumstances, could make no contracts to deliver because they could not get the necessary transportation, and hence could not have averred the points to which it was to have been carried. The reason for the refusal of transportation is alleged to be that the Gulf, Colorado & Santa Fe Company desired that the lumbér should accumulate until they completed a junction between their road and the other defendant, so that it would earn the profit on the transportation beyond the proposed point of connection.- This shows that the refusal to carry was not on account of the non-payment of freights, and we think, therefore, a tender was not necessary to be alleged.
A more serious question is, whether the allegations of the petition do not show that whatever liability accrued was that of the Gulf, Colorado & Santa Fe Company only. In order to set forth a cause of action against both defendants, the original petition averred that ‘-'the Gulf, Colorado & Santa Fe Railway Company, and its officers and agents, ‘have, or claim to have, purchased, own and operate and control the defendant (Central *59& Montgomery Railroad), and have taken charge of, and are exercising ownership over, all its property and effects, and undertaken to perform its functions, and operate its franchises.’”
It is well established that a railroad company can not transfer or lease the right to operate its r.oad, so as to absolve itself from its'duties to the public, without legislative authority. Nor will a lease duly authorized by law release the company from a failure to discharge its charter obligations, unless the law giving the power contains a provision to that effect. (Abbott v. Horse Car Company, 80 New York, 27; Ohio & Mississippi Railroad Company v. Dunbar, 20 Illinois, 623; Nelson v. Vermont & Canada Railroad Company, 26 Vermont, 717; Macon & Augusta Railroad Company v. Mayes, 49 Georgia, 355; Railroad Company v. Brown, 17 Wallace, 445; Illinois Central Railroad Company v. Bowen, 5 Wallace, 90; 1 Rorer on Railroads, 605, et seq.; 1 Redfield on Railways, chapter 22, page 616, star page 587; Pierce on Railways, 283, 496.)
We have not found any law in this State which confers upon a railroad the power even to lease its road. Section 5 of article 10 of the Constitution provides that no railroad corporation, nor the lessees of such corporation, shall consolidate with any other having a parallel or competing line. This is, however, a restriction upon the power of such corporations, and is not to be construed as a grant of authority to lease. A similar provision in the statute of New York was held by the Court of Appeals of that State not to authorize a lease. (Abbott v. Horse Car Company, 80 New York, supra.)
But a purchase of the property and franchises of a railroad company may take place under judicial process, or the power given in a deed of trust, which we have no doubt would work a transfer to the purchaser of its statutory and common law obligations to the public. (Revised Statutes, article 4260, et seq.) The words just quoted from the original petition, “have, or claim to have, purchased,” are consistent with the idea of such a transfer, and it is probable that if the clause in which they appear stood alone we would be bound to give them a construction least favorable to the pleader. But the rules of practice laid down by this court for the government of the district courts provide that in passing upon a general exception every reasonable intendment arising upon the pleading excepted to, shall be indulged in favor of its sufficiency. (47 Texas, 619, rule *6017.) Taking all the allegations of the petition together, and especially those averring the continued existence of the Central & Montgomery Company as a common carrier, we think the reasonable intendment is that the pleader sought to exclude the idea that any such sale as the statutes contemplated had taken place. We are of opinion, therefore, that the original petition sets forth a cause of action good upon general demurrer.
The amended petition sets up substantially the same facts as originally pleaded by the plaintiffs. The allegations of damages are admitted by counsel for plaintiff in error to be almost identical in language, and the same in substance in both pleadings. The averments of the latter are more specific, but no new ground of action is alleged. It was not necessary, therefore, that defendant should have notice of the filing of the amended petition, in order to authorize the court, upon demand of plaintiffs, to proceed to judgment.
The fourth assignment is that “the court erred in rendering judgment against this defendant, because plaintiffs’ first amended orignal petition does not state any legal or intelligent basis for estimating the damages. It does not allege to what place or places the lumber was tendered for transportation, or the market value of the lumber at such place or places at the time when the lumber would have arrived had defendant transported the same when tendered, and does not allege the market value of the lumber at Montgomery at the time the same was tendered for transportation.”
It seems to us that the damages are properly alleged. The action was brought not on account of any one specific failure to transport any one lot of lumber. In such a case the difference between the price of the lumber at the point of departure and the price at its place of destination, less the freight, is the proper measure. But here was a case of a continuous failure to carry the lumber as demanded. Plaintiffs could not have contracted to deliver at any point for the want of facilities of transportation. What could have been realized upon the lumber if transportation had been furnished, and the loss which accrued by reason of its having to be stacked at a place where it could not be sold, and all the incidental expenses, are very specifically stated.
The fifth assignment is that “the court erred in rendering judgment for the plaintiffs, because its charge to the jury contains no intelligible rule for measuring the damages.. The court *61erred in charging the jury that the measure of damages was the difference in value of such lumber so offered at such places at the time of such offer for shipment and the fair and reasonable market value thereof at the time and place for which it reasonably ought to have transported it,’ because such charge is insensible and gave the jury no intelligent rule.”
This charge is clearly erroneous by reason of some clerical misprision, as must be presumed. This is however an error to the prejudice of plaintiffs, and not of defendant; and hence the latter can not complain. Taking the whole of the instructions together, they were altogether favorable to the railroad company. If not full, defendant should have been present by counsel and asked special instructions. I't can claim no immunity from the ordinary rule of practice by reason of its failure to appear and make defense to the action. Without a statement of facts, we can not say there is any error in the charge by which the defendant was prejudiced.
The seventh and ninth assignments of error raise the same question. We copy the latter. “The judgment is erroneous and illegal, because rendered on the verdict of a jury assessing plaintiff’s damages, when, under the law, the court was required to assess the damages, and because the damages were never assessed by the court.”
The Revised Statutes, articles 1284, 1285 and 1286, provide for a jury for defendants in case judgment is rendered by default, but do not expressly give this privilege to the plaintiff. These enactments are certainly peculiar. After default, the defendant may demand a trial by jury, even upon a liquidated demand— though we are at a loss to determine what function the jury can be called upon to perform in such case. We are of opinion, however, that under the course of procedure at common law, when a judgment was rendered by default, and the cause of action was not liquidated, a jury was always called to assess the damages. If this be so, the right is preserved by fifteenth section of our bill of rights, and can not be infringed by any act of the Legislature. In a very numerous class of cases, the amount of damages is the important question to be determined, and the one in which plaintiffs have the greater interest in a trial by jury. The plaintiffs in this case had, at a term before that at which the judgment was rendered, demanded a jury and paid the fee therefor. We think that they were entitled to have the damages *62assessed by a jury, and that the court did not err in extending to them this privilege.
Opinion delivered March 8, 1887.We are of the further opinion that the court did not err in dismissing as to the Gulf, Colorado & Santa Fe Railway Company. The petition did not allege any joint obligation to plaintiff on part of the two defendants. It claimed that, by reason of the facts and the relations between the defendants, it had a claim against both. If the facts stated in the petition are true, they had the right to proceed against either in a separate action.
There is no error in the judgment, and it is affirmed.
Affirmed.