On Motion for Rehearing.
GAINES, Associate Justice.At the Austin Term a judgment was rendered reversing the decree of the lower court in this case, and remanding the cause for a new trial. In the former opinion it was held that the court below erred in charging the jury that the order of the District Court of Dallas County removing the disabilities of minority of Brisco B. Smith was final, and could not be inquired into in this suit. Our conclusion was based upon the ground that the transcript offered in evidence failed to show that the county judge had been served with a copy of the minor's petition, as required by the statute. It did, however, appear to us from the record that the county judge had probably accepted service, and we deemed it proper therefore to decide whether or not such acceptance was equivalent to service in such a proceeding. The question was decided in the affirmative.
In a motion for a rehearing our attention was called to the fact that the appellant, who was defendant in the court below, had pleaded that the county judge had accepted service, and had filed no general denial. The fact being thus alleged by the defendant, it was not necessary for the plaintiff to prove it, and the rehearing accordingly was granted.
The acceptance alleged was in the following words: “I, R. E. Burke, judge of Dallas County, Texas,, hereby accept service of process in the *390within cause, and I enter appearance in the same, and I agree that the said cause may be set for trial and tried at the present term, or at any time the court and petitioner may desire.” This shows that the county judge had informed himself of the nature of the petition, and we think, therefore, that his acceptance of notice and waiver of process was as effectual as if a copy of the petition had been actually served.
We see no reason why the application could not be heard and determined at the term during which it was filed. The proceedings are special, and the provisions of our statutes which regulate suits within the-ordinary jurisdiction of the District Courts do not apply.
Eor these reasons, in connection with those stated in the former opinion, we think we were in error in holding that the court below should not have given the charge complained of in appellant’s third assignment.
This renders it necessary to pass upon appellant’s other assignments of error, except the third, which is virtually disposed of by what has already been said. The first is that the court erred in refusing the following instructions:
“A specific qterformance of a contract is not enforced or decreed as a matter of course, but only in the exercise of a sound legal discretion. The plaintiff must present a contract which is fair, just, and reasonable, entered into upon an adequate consideration and free from fraud, and not hard, unequal, and unconscionable. Therefore, if you believe from the evidence that at the time the contract was made by the defendant’s intestate Brisco B. Smith with W. K. Wheelock, that he, Brisco B. Smith, was an habitual drunkard, and that he had only recently had his disabilities of minority removed, and that the price agreed upon for the purchase of said property was inadequate or not a fair price for said property, and that from these facts and circumstances he, the said Brisco B. Smith, was not on equal footing at the said time said contract of sale was made with said W. K. Wheelock, but that he was overreached and advantage taken of his condition by said W. K. Wheelock to make said contract, you will find for the defendant.
If you believe from the evidence that the judgment of the District Court removing Brisco B. Smith’s disabilities of minority was rendered and the matter tried in the absence of Judge R. E. Burke, county judge of Dallas County, then the judgment of the court removing said disabilities is null and void, and you will find for the defendant.”
In our opinion the charge given by the court correctly and clearly presented to the jury the law applicable to the facts of the case. The jury were told in effect to find for the defendant if they believed that at the time the contract "was entered into between Brisco B. Smith and the plaintiff, Smith’s mind had been so impaired by the use of intoxicating liquors that he did not fully understand the effect of the contract or was not competent to know or appreciate the value of the property. They *391were also instructed, in effect, that if the inadequacy of price was not such as to shock the sense of justice, they could still look to the price paid or agreed to be paid for the property, together with all the surroundings' of Smith and his mental condition at the time, in determining 1 whether or not he was incompetent to understand and appreciate the nature of the contract he made.
The two leading issues of fact relied on by the defendant were as to mental incapacity of Smith resulting from continued drunkenness, and as to the inadequacy of price. Upon both questions so presented by the evidence and pleadings the testimony was conflicting. The first instruction requested, if it could be deemed correct as applicable to any case, contains expressions well calculated to mislead the jury under the evidence in the case before us, and we think therefore it was not error to refuse it.
The question of the correctness of the second charge requested is determined in the negative by the conclusions reached in this and the former opinion. The same may be said of the second error assigned.
The fourth assignment complains that the court erred in overruling the ■ motion for a new trial. The ground of the motion here relied on is that the verdict is contrary to the evidence upon the questions of the mental capacity of Smith at the time he made the contract, and the inadequacy of price.
We deem it sufficient to say in regard to this assignment that the evidence was conflicting upon these points, and that under such circumstances a verdict can not be disturbed in this court.
The judgment is affirmed.
Affirmed.
Delivered December 3, 1889.