On Motion for Rehearing.
Appellant, Bewley Mills, has misunderstood the language used by us when we said: “The first bill of exceptions complains of the refusal of the court to give said appellant’s issues Nos. 1-a to 6-a, inclusive. The second bill of exceptions complains of the trial court’s refusal'to give appellant’s issues Nos. 2 to 42, inclusive.”
We had no intention to qualify or define the manner in which the bills of exception were taken, by such language, nor do we believe that the 'language is susceptible of such construction. What we were saying was that the bill of exceptions was addressed to the refusal-to give certain six special issues, in one instance, and the other bill was addressed to the refusal to give certain forty-one special issues, without naming and numerating each issue. , It. is readily seen that the word “inclusive” was só used in each sentence to which appellant takes exception.
We have no disposition to 'appear captious. We are endeavoring to follow the precedents set for us. :- ' . -
Assuredly it cannot be said that 'special issues' 1-a, 2-a; ’3-a, 4 — a, 5-a,: and-6-a were not requested en masse and on one sheet of paper.
If the notations shown on the bill of exceptions to the refusal of the other forty-one special issues are sufficient to take the presentation out of the general rule,» and shows that we must consider the issues as separately presented to the trial court; or if the rule, laid down in Rogers v. Cotton (Tex.Civ.App.) 42 S.W.2d 173 (writ dismissed), which is a complete departure from the rule established theretofore, should be followed — then the record as presented to us discloses: That special issues 1-a and 2-a, which make inquiry of the Bank’s acquiescing in Askey’s storing the wheat and ratifying Askey’s act in so doing, are wholly immaterial to any issue raised by the evidence. Special issue 4-a asks the jury to find whether the Bank and Askey were joint owners of the wheat, and 5-a inquires as to the Bank’s sole ownership. The evidence does not raise either issue.
Issue 6-a asks the jury to find whether or not the Mills continued to store the wheat while relying on the' act of the Bank in not objecting to such storage. This issue'is immaterial to any issue raised by the evidence.
The sixth assignment of error complains of the refusal to give special issues Nos. 2, 3, 5-a, 6, 7, 9, 27, and.28.
These issues present matters not so related that they may be presented in one assignment of error.
For instance, issue 2 requests the jury to find whether or not Askey gave the Bank the storage receipts; 3 inquires, did the Bank accept the receipts; 5-a inquires did the Bank own the wheat; 6 inquires"whether or not the Bank, after receiving the wagon receipts, delivered them to one Walker and request the Mills to issue to the Bank negotiable warehouse receipts in lieu of the wagon receipts; 7 inquires; did the Mills make and deliver the warehouse receipts at the Bank’s request; .9 asks, did Askey by delivering the grain to the mills, at-Decatur, deliver same to the Bank; 27 asks, did the Bank by accepting and retaining the warehouse receipts hold -itself out as owner of the grain;, and 28 asks, did the Bank exercise full'- and complete ownership over the warehoúse receipts?
We carinot consider an assignment of error that' is so multifarious.
*208The seventh assignment complains of the refusal of special issues Nos. 4, 5, and 8.
Issue 4 asks the jury to find whether or not the Bank, at the time it accepted the wag<jn receipts, knew that the Mills were claiming storage charges on the grain and a lien to secure payment of same; No. 5 asks the jury to find whether or not the Bank ever objected to the grain being stored with the Mills; and No. 8 asks the jury to find whether or not the bank accepted the warehouse receipts and retained same without objecting to the charges recited in the face of same.
If we are warranted in holding that these special issues are so closely related that we should consider an assignment of error complaining of the refusal of the three, we find no error because the three issues are immaterial to any issue presented in the case.
The eighth assignment of error complains of the refusal of the trial court to give special issue No. 10, which asks the jury to find whether or not the Bank owned the receipts from the time Askey gave them to the Bank down to the time of the trial.
The evidence raises no such‘issue.
The ninth assignment of error complains of the refusal to give special issues Nos. 11 and 12, which ask the jury to find whether or not the Bank knew that Askey was storing the grain with the Mills, and whether or not the Bank agreed to such storage.
These issues are immaterial, even if raised by the evidence.
The tenth assignment of error ’ complains of the refusal to give special issue No. 13, which asks- the jury to find whether or not the Bank authorized Askey to either sell the wheat or to procure an advancement of money on same.
Even if the evidence were sufficient to raise the issue, it is immaterial.
The eleventh assignment of error complains of the refusal to give special issue No. 14, which is: “If you have answered special issue No. 13 no, you need not answer, but if yes then answer: Do you find that in obedience to such request Askey did obtain advance of money from Bewley Mills?”
There is a wide gap between the act of authorizing Askey to either sell his wheat, on which he had given the Bank an express lien, or to borrow money from the Mills on such wheat, and that of requesting Askey to borrow money from the Mills on the wheat.
Even if1 the trial court had been duty bound to give special issue No. 13, the refusal of special issue No. 14 was proper because no predicate had been laid for giving issue No. 14, and no request was sought to be established in any prior issue.
The evidence does not raise the issue before us.
The twelfth assignment of error complains of the refusal to give special issue No. 15, which asks the jury to find the amount of money advanced by the Mills to Askey.
The fact was undisputed and accounted for in the judgment.
The thirteenth assignment of error complains of the refusal to give special ’issue No'. 16, which asks the jury to find whether or not the Bank received all of the money advanced to Askey by the Mills.
We do not believe there is evidence to support such issue, but, at that, it is wholly immaterial in the light of the record.
The fourteenth assignment of error complains of the refusal to give special issue No. 17, which asks the jury to find whether or not ,the Bank applied the money inquired about on the indebtedness Askey owed the Bank. -
Even if the evidence were sufficient to raise the issue, it is immaterial here.
The fifteenth assignment of error complains of the refusal to give special issue No. 18, which asks the jury to find whether the advancement to Askey was to bear 8% interest, or not.
The issue is not material to any issue between the Bank and the Mills.
The sixteenth assignment of error complains of the refusal to give special issue No. 19, which asks the jury to find whether-or not the Bank knew that Askey had no place of his own. in which to store and safely keep the grain in question.
Such issue is immaterial here.
The seventeenth assignment of error complains of the refusal to give speciql issues Nos. 20, 21, and 22.
No. 20 asks the jury to find whether or not it was Askey’s custom to deliver his wheat to some elevator after each harvesting; and No. 21, whether or not the Bank knew of such custom; and No. 22, whether or not,the Bank made any objec*209tion to Askey’s handling the grain in accordance with such custom.
These issues are not material here.
The eighteenth assignment of error complains of the refusal to give special issue No. 23, which asks the jury to find whether, or not, the Bank made no objection, to anyone connected with the Mills, to the grain being stored with the Mills.
This issue is immaterial here.
The nineteenth assignment of error complains of the refusal to give special issue No. 24, which asks the jury to find whether, or not, the Bank by its conduct caused the Mills to believe that it would be fully protected in its storage charges and- advancements.
The evidence does not raise such issue.
The twentieth assignment of error complains of the' refusal to 'give special issues Nos. 25 and 26. No. 25 asks the jury to find whether, or not, “the Bank accepted the benefits of the result of Bewley Mills carefully preserving, keeping, conditioning and handling the grain in question”; and No. 26 asks the jury to find whether, or not, the Bank, at the time it accepted such benefits, knew that the Mills claimed storage and a lien on the grain to secure same.
These issues are immaterial here.
The twenty-first assignment of error complains of the refusal to give special issue No. 27, which asks the jury to find whether, or not, the Bank, by its acceptance and retention of the warehouse receipts, held itself out as the owner of the grain in question.
The evidence does not raise the issue.
The twenty-second assignment of error complains of the refusal of special issue No. 28, which asks the jury to find whether, or not, the Bank exercised full and complete ownership over the warehouse receipts.
The evidence does not raise the issue.
The twenty-third assignment of error complains of the refusal of special issue No. 29, which asks the jury to find whether, or not, any consideration passed to the Bank, “or detriment to defendant Askey,” by reason of the execution of the chattel mortgages involved in the suit.
This issue was not raised by the evidence.
The twenty-fourth assignment of error complains of the refusal of special issue No. 30, which asks the jury to find whether, or not, the chattel mortgages given by Askey to the Bank were given at the request of Askey for the purpose of protecting As-key’s crops against a judgment that had been obtained against Askey by one Hood.
Askey made no effort to avoid the chattel mortgages in question on the theory that they are without consideration. The validity of such mortgages stands unquestioned, and the evidence does not raise the issue tendered.
The twenty-fifth assignment of error complains of the refusal of special issues Nos. 41 and 42.
No. 41 advises the jury that if they have found in answer to issue No. 40 that the Bank held other security for its debts besides the grain in question, then to find what other properties, real or personal, the Bank held as security; and No. 42 inquired of the jury the reasonable value of the real estate, involved in this suit, at the time of its purported sale, on June 3, 1924.
These issues are immaterial here.
We assure the appellant, Bewley Mills, and its counsel, that we have no desire in any case to dispose of many assignments of error, or even one, “with a shrug of the shoulders” or “by a wave of the hand.” This is a voluminous record. Appellant's brief contains 148 pages, 33 assignments of error, and 13 “propositions upon which this appeal is predicated.”
The original opinion is lengthy, and we endeavored to discuss the assignments of error that we felt should be discussed. We did not believe that there was merit in any of the first twenty-five assignments, and we endeavored to dispose of them in as few words as possible, because of the record presented.
Here we have endeavored to show why we believe there is no merit in one and all of the first twenty-five assignments of error.
As to appellant Mills’ right to a marshaling of the assets, and our statement in the original opinion that we do not believe the Mills’ pleadings, under the facts disclosed, properly call for a rpar-shaling of the assets, we call attention to the fact that the doctrine will not be invoked if it serves to “delay or .inconvenience the paramount encumbrancer in the collection of the debt, or prejudice him in any manner.” See 28 Texas Jur. p. 753, par. 3, and cases cited.
Likewise the doctrine will not be invoked if the properties are insufficient to satisfy *210the paramount lien. 28 Texas Jur. p. 756, par. 6, note 5. The same Text at page 754, par. 3, declares that the doctrine “may be invoked only where the paramount creditor’s right to resort to both funds is clear and not seriously disputed, and the remedies available for reaching the funds are reasonably prompt and efficient.”
Every right contended for by the Bank was hotly contested by the Mills and by Askey; and it was not attempted to be shown that the properties on which the Bank claimed securities were reasonably worth more than the Bank’s claims.
We adhere to our former holding. A case for the marshaling of assets has neither been pleaded nor proved. 28 Texas Jur. p. 761, par. 10.
The motion of appellant Bewley is overruled.