author: DUNAGAN, Chief Justice.

text:
    GENERAL TRIMMING PRODUCTS, INC., et al., Appellants, v. S. C. NELSON & COMPANY, Inc., Appellee.
    No. 189.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 20, 1966.
    Rehearing Denied Feb. 10, 1966.

      Wm. Andress, Jr., Andress, Woodgate, Richards & Condos, Dallas, for appellants.
    Dick P. Wood, Dallas, for appellee.
   DUNAGAN, Chief Justice.

On October 5, 1962, the appellant, General Trimming Products, Inc., filed suit against G. W. Sparks and the S. C. Nelson & Company, Inc., alleging that General Trimming Products, Inc. had sold goods, wares and merchandise to Sparks for which he was indebted to it in the sum of $732.15 which he had failed to pay upon demand being made of him, also seeking to recover from Sparks $350.00 attorney’s fees. The petition further alleged that Sparks had sold such merchandise to the Nelson Company without complying with the Bulk Sales Law.

On July 24, 1963, the plaintiff filed its first amended original petition wherein the same allegation was made as in its original petition. Insofar as the defendant Nelson is concerned, the following allegations were contained in the plaintiff’s first amended original petition upon which this suit was ultimately tried and disposed of:

“After defendant Sparks had defaulted in the payment of said account to the plaintiff, he sold and transferred in bulk his stock of merchandise then being used by him in the conduct of his businesses otherwise than in the ordinary course of trade and the regular prosecution of his business, to the defendant S. C. Nelson, Inc., without complying with the bulk sales law of Texas, Article 4001. Plaintiff alleges that the amount of merchandise so transferred by Sparks to Nelson was a value in excess of $25,000.00 and that such transfer took place on or about 31 August 1962, and thereby defendant Nelson has become accountable to the plaintiff to the extent thereof for the full amount of its claim against the defendant Sparks.
“Plaintiff demands judgment against defendants for debt, interest, attorney’s fees, costs, and all other proper relief.”

Defendant, S. C. Nelson & Company, Inc., filed its answer and in addition to its special exceptions and general denial, it alleged in paragraph 4 thereof:

“This Defendant respectfully pleads that the purchases which it made from G. W. Sparks were made in the ordinary course of trade and in the regular prosecution of its business without any intent to hinder or delay or defraud the Plaintiff, and without any knowledge, information or belief, at that time or previously thereto, that the said G. W. Sparks was indebted to the Plaintiff for any sum of money whatsoever.”

There had been filed numerous suits on behalf of various creditors against G. W. Sparks and the appellee, S. C. Nelson & Company, Inc. On December 6, 1963, a motion was filed to consolidate these cases, and the cases were consolidated under No. 71909-B styled General Trimming Products, Inc., et al. v. G. W. Sparks, et al. by an order of the court on the 24th day of January, 1964. The cases so consolidated were:

No. 71909-B—General Trimming Products, Inc. v. G. W. Sparks, et al.
No. 71577-F/I—American Coated Fabrics Co. v. G. W. Sparks, et al.
No. 72086-C—Aro Top Sales Company v. G. W. Sparks, et al.
No. 72087-C—Globe Plastics Company v. G. W. Sparks, et al.
No. 72298-G—International Sampling, Inc. v. G. W. Sparks, et al.

Pursuant to a motion of the plaintiff, General Trimming Products, Inc., for partial summary judgment, the court on May 11,1964, upon considering said motion found from the pleadings there was no genuine issue of any material fact between the plaintiff, General Trimming Products, Inc. and the defendant, G. W. Sparks, and that said plaintiff is entitled to its judgment and ordered, adjudged and decreed that the plaintiff, General Trimming Products, Inc., recover its partial summary judgment against the defendant, G. W. Sparks, for the sum of $732.15, with interest thereon at six per cent per annum from January 1, 1963, and $250.00 as reasonable attorney’s fees, and all court costs.

On August 5, 1964, the appellants filed a motion for summary judgment against S. C. Nelson & Company, Inc., alleging that they hold an interlocutory judgment against the defendant, G. W. Sparks, on sworn account for goods, wares and merchandise sold and delivered, sought recovery against defendant Nelson for his purchase from Sparks of merchandise in bulk without complying with the Bulk Sales Law, and further alleging that the pleadings, depositions and admissions on file that there is no genuine issue as to any material fact and that they and the other plaintiff who was also a party to the motion for summary judgment are entitled to a judgment for full recovery upon such claim against said defendant Nelson as a matter of law.

On November 25, 1964, the court entered a summary judgment in which it found that the sale from Sparks to the S. C. Nelson & Company, Inc. for a sum in excess of $12,000.00 in August of 1962, was not in the ordinary course of business and violated the Bulk Sales Law. The judgment also authorized J. Alton Oakes and James A. Baker to sell for cash the merchandise remaining in possession of Nelson and listed on the inventory filed herein and make a report thereof to the court. The order to sell the remaining merchandise was agreed, to by all parties.

The court ordered the S. C. Nelson Company to file an itemized inventory of merchandise still in its possession remaining from the merchandise purchased from G. W. Sparks in August of 1962, and authorized J. Alton Oakes and James A. Baker to sell said merchandise and report such sale to the court.

Subsequent to the purchase of the stock of merchandise by Nelson Company from Sparks, Nelson sold $794.00 worth of said stock before the first of the consolidated cases was filed against him, after which he kept the balance of the merchandise intact.

Thereafter, on December 7, 1964, the S. C. Nelson Company in these consolidated cases filed an itemized inventory of the merchandise still in its possession remaining from the merchandise which it had purchased from G. W. Sparks in August, 1962, and showed that it had sold out of such inventory merchandise worth the sum of $794.00. Such report showed that when the first suit was brought by the plaintiffs, that this merchandise was set aside and separated from all other merchandise owned by the S. C. Nelson & Company, Inc., and that the same had been stored in a separate place since the time of its original acquisition.

On February 3, 1965, J. Alton Oakes and James A. Baker, pursuant to the order of the trial court entered on November 25, 1964, reported to the court that the inventory of merchandise had been sold to the Pop Engle Auto Glass Company for the sum of $3,640.00 which was the best offer that they had been able to obtain for such merchandise. The report of sale further stated that according to the verified inventory filed herein that the S. C. Nelson Company sold and disposed of merchandise which it had acquired from the defendant Sparks prior to the institution of these consolidated suits, which merchandise had a cost of $794.00 and that the S. C. Nelson Company should be required to deposit the sum of $794.00 in the registry of this court, subject to further orders of this court.

On February 12, 1965, the court in the consolidated cases confirmed the sale of such merchandise, and the receivers, J. Alton Oakes and James A. Baker, were ordered to deposit the sum of $3,640.00 with the District Clerk of Dallas County, Texas.

On February 22, 1965, the sum of $3,640.-00 was deposited with the District Clerk of Dallas County, Texas.

On March 2, 1965, the sum of $794.00 was deposited with the District Clerk of Dallas County, Texas, by the S. C. Nelson Company.

On March 29, 1965, the court rendered and signed a final judgment in the consolidated cause of action wherein it in part stated:

“ * * * that the record conclusively shows that the defendant S. C. Nelson & Company, Inc., in August of 1962, purchased merchandise in bulk and not in the ordinary course of trade from the defendant G. W. Sparks, paying him for same the sum of $12,139.43 agreed to be 10% below his cost, without complying with the Bulk Sales Law out of which merchandise S. C. Nelson & Company, Inc., subsequently sold in the course of its business merchandise in the amount of $794.00, retaining the remainder thereof on hand until it was sold in January of 1965 under an agreed order of Court for the sum of $3640.00 which was the best price then obtainable for it, and that the aggregate amount of $4434.00 has been deposited in the registry of the Court; and the Court being of the opinion that the said sum should be distributed pro rata among the plaintiffs who are judgment creditors of G. W. Sparks and the only ones who have established any claim thereon, and that there is no personal liability on the defendant S. C. Nelson & Company, Inc., for- any amount in excess of the actual selling price of said merchandise; and it further appearing to the Court that the aggregate amount of the judgments of the various plaintiffs against the defendant G. W. Sparks is $11,964.60, and that the sum deposited in the registry of the Court in the amount of $4434.00 is sufficient to pay 37.15% of said principal amount of said judgments, without interest, or attorney’s fees, and should be so applied ; * * * ”

The judgment further ordered and decreed that the interlocutory judgment heretofore rendered herein against the defendant, G. W. Sparks in favor of Aetna Coated Fabrics, Inc., American Coated Fabrics Company, General Trimming Products, Inc., Aro Top Sales Company, Inc., Wintex, Inc., Globe Plastics Company and Walter E. Heller & Company be made final.

It was further ordered, adjudged and decreed in said judgment that the plaintiffs shall receive and credit upon said judgment their pro rata share of the sums heretofore deposited in the registry of the court and the Clerk of this court is instructed to deliver checks in the following amount payable to the plaintiffs or their attorneys of record as follows:

For Aetna Coated Fabrics, Inc., $567.27; for American Coated Fabrics Company, $1,448.85; for General Trimming Products, Inc., $271.93; for Aro Top Sales Company, Inc., $394.16; for Wintex, Inc., $486.66; for Globe Plastics Company, $413.51; and for Walter E. Heller & Company, $851.47.

It was further ordered, adjudged and decreed that the plaintiffs take nothing further against the defendant, S. C. Nelson & Company, Inc., in excess of the deposit in the registry of the court and the costs hereof; to which portion of the judgment the plaintiffs individually excepted and gave notice of appeal and having perfected said appeal, the case is now before this court for its review of the judgment of March 29, 1965.

As the pleadings above set out reflect, the appellants brought this action against G. W. Sparks and the S. C. Nelson & Company, Inc., for sale allegedly being in violation of the Bulk Sales Law. The appellants are attempting to recover from the Nelson Company not only the full amount which such merchandise brought in the sale under the orders of the court, but the full amount of Sparks’ debt to the various plaintiffs. Further, appellants seek a personal judgment against the Nelson Company for the full amount of all the debts owed General Trimming Products, Inc. by Sparks.

Article 4001 (the Bulk Sales Law) specially provides the requisites necessary for the sale of the stock of merchandise and further provides that:

“Any purchaser or transferee who shall not conform to the provisions of this law shall, upon application of any of the creditors of the seller or trans-feror become a receiver, and be held accountable to such creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale or transfer.”

The appellants say:

“There is only one question involved in this case — the proper measure of damages for the stock of merchandise acquired by the appellee Nelson without complying with the Bulk Sales Law.”

The question being: Is the measure of damages the value in August of 1962 at the time of the sale of the merchandise from Sparks to Nelson or January, 1965, at the time of the sale of said merchandise under the order of the court?

The appellants bring forward one Point of Error which reads:

“The measure of damages to Sparks’ creditors for Nelson’s conversion of the merchandise acquired from Sparks without compliance with the Bulk Sales Law was its market value at the time of such acquisition and conversion.”

It is the position of the appellants that when Nelson acquired this merchandise without complying with the Bulk Sales Law, it remained subject to the rights of the creditors and that Nelson’s liability was that of a receiver; when Nelson took this merchandise in stock and made sales from it, claimed the ownership, and denied any rights of creditors, that Nelson thereby converted the property; and that the measure of damages for conversion is the value of the property at the time of the conversion, which was substantially the date of acquisition.

A review of the plaintiffs’ original petition and their first amended original petition upon which the case went to trial does not contain any allegation that the defendant, S. C. Nelson & Company, Inc., converted merchandise belonging to the plaintiffs, or put it beyond the plaintiffs’ reach, or in any manner converted the goods, wares and merchandise sued upon herein. There being no pleadings filed by the appellants of any conversion on the part of the S. C. Nelson Company, the appellants cannot raise this issue for the first time on appeal.

26 Tex.Jur.2d, pages 508 and 509, Sections 215 and 216, provides:

“215. A sale in contravention of the Bulk Sales Law leaves the title, as to the creditors, still in the debtor. The creditors therefore may reach such property by any appropriate process, such as attachment, execution, or garnishment. Even though the purchaser pays full value and resells the merchandise, the proceeds are regarded as a trust fund that the creditors may reach by writ of garnishment proceedings. However, no creditor can derive a superior right by instituting garnishment proceedings. All creditors should share pro rata in the goods, wares, and merchandise transferred in trust to the purchaser, or in their value.
“216. The Bulk Sales Law provides that any purchaser or transferee who does not conform to the law, on application of any of the creditors of the seller or transferor, becomes a receiver, and is held accountable to such creditors for all goods, wares, merchandise, and fixtures that have come into his possession by virtue of such a sale or transfer. * * * ”

In the case of Lingner v. Haley, 277 S.W.2d 302 (Tex.Civ.App.) 1954, writ dismissed, we find the following statement:

“Article 4001 provides in part that:
‘Any purchaser or transferee who shall not conform to the provisions of this law, upon application of any of the creditors of the seller or trans-feror become a receiver, * * *.’
“By ‘application’ as therein used is meant a formal application made to a court of competent jurisdiction, containing allegations of the material facts as to the transactions involved, sufficient to invoke the equitable powers of the court, and to apprise the court and the purchaser of a desire to have the receivership declared and the matter adjudicated as between the purchaser and the various creditors in accordance with the rules usually governing in ordinary receivership proceedings. Gardner v. Goodner Wholesale Grocery Co., 113 Tex. 423, 256 S.W. 911; 20 Tex.Jur. 574, Section 220. Since the bulk sales law, Article 4001, makes no provisions for rules of procedure upon the filing of an application for a receivership under its terms, Article 2319 and other provisions of the statute governing such matters are usually followed for guidance. Settegast v. Second Nat. Bank, 126 Tex. 330, 87 S.W.2d 1070, 102 A.L.R. 680; Southwestern Drug Corporation v. McKesson & Robbins, 141 Tex. 284, 172 S.W.2d 485, 155 A.L.R. 1056.”

The court further stated:

“In the case at bar the trial court predicated its acts upon the provisions of other receivership statutes in requiring the receiver to take an oath, execute a bond and in directing him to perform other certain duties as such receiver. Statutes which deal with the same general subject and have the same general purpose, whether it be receiverships or otherwise, are considered as ‘in pari materia’ and must be harmonized, if possible, and construed so as not to destroy the effect of either. 39 Tex. Jur. 253-257, Section 135. For the reasons stated it is our opinion that the trial court was not and could not have been ‘controlled and governed solely by Article 4001 of the bulk sales law’ since the said Article makes no provision under its terms for procedure upon the filing of a petition for receivership and for adjudicating the matters therein presented. Under the authorities cited the trial court must resort to other provisions of the statute, or to rules of equity not inconsistent with the statute, for determining such matters when a petition has been filed under the bulk sales law seeking a receivership.
“Under the authorities previously cited construing the bulk sales law, an application for a receivership must allege sufficient material facts concerning the transaction involved to invoke the equitable powers of the court and to apprise the court and the purchaser of a desire to have the receivership declared and the matters presented adjudicated as between the purchaser and the creditors in accordance with the usual rules governing an ordinary receivership proceedings. The right to the appointment of a receiver after notice and hearing, is a matter distinctly different from the right to an appointment ex parte and without notice. The right to a day in court, of notice, and of the privilege of being heard before judgment, is of the very essence of due process of law. * * * ”

Another case which is in point on this subject is Phillips v. Cargill, 131 S.W.2d 775, (Tex.Civ.App.) 1939, n. w. h., which construed the pleadings that are similar to the ones in this case in which the court said:

“For ground of relief against defendant Claud Phillips plaintiff’s petition is as follows: ‘Plaintiff would further show to the Court that while indebted to this plaintiff, the defendant J. P. Phillips moved his stock of merchandise into a store owned by Claud Phillips, and being in the City of Longview, Gregg County, Texas, and mixed and mingled the stock of J. P. Phillips with that of Claud Phillips and that the said defendants then and there violated the Bulk Sales Law and rendered the stock and assets of the said Claud Phillips liable for the rentals and damages due to the plaintiff herein by the said J. P. Phillips.’ This allegation as to Claud Phillips above quoted is the only allegation attempting to state a cause of action against him. Article 4001, Revised Civil Statutes 1925, is in part as follows: ‘The sale or transfer in bulk of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of said business otherwise than in the ordinary course of trade, and in the regular prosecution of the business of the seller or transferor, shall be void as against the creditors of the seller or transferor.’ The statute further provides that the sale be void unless the conditions therein set forth be complied with. Said section further provides: ‘Any purchaser or transferee who shall not conform to the provisions of this law shall, upon application of any of the creditors of the seller or transferor become a receiver, and be held accountable to such creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale or transfer.’
“Even though it be conceded that said paragraph pleads a sale or transfer in violation of the Bulk Sales Law, we are of the opinion that the allegation is insufficient to support proof of the value of the goods transferred. It is further fatally defective, in that it fails to allege that plaintiff is the only creditor of J. P. Phillips, and does not seek to have defendant Claud Phillips held as a receiver. Article 4001 does not provide for personal liability of the purchaser or transferee beyond the value of the property received. * * * ”

The Commission of Appeals of Texas in Fischer v. Rio Tire Company, Tex.Com.App., 65 S.W.2d 751, 1933, in reference to Article 4001 and 4002 stated:

“The foregoing articles have been construed by the courts of this state, and the rule has been announced that, where there has been no effort made to comply with the foregoing act, the liability of the purchaser thereof is expressed in the following language:
“ ‘The liability of a purchaser of a stock of goods and fixtures in violation of the Bulk Sales Law is that of a receiver. Having taken the property subject to the rights of creditors, he becomes bound in equity to see that the property or its value is appropriated to the satisfaction of claims of the creditors of his seller. He becomes the trustee of an express trust, and is subject to the same duties and liabilities of such a trustee. We think the law was intended to charge him with liability, however, only to the extent of the value of the property, received by him, and this liability is to all of the creditors pro rata. As aptly stated by the Supreme Court of Arkansas in the case of Stuart v. Elk Horn Bank & Trust Co., 123 Ark. 285, 185 S.W. 263, Ann.Cas. 1918A, 268:
“ ‘The Bulk Sales Act does not make the person who fails to comply with its provisions liable for all the debts of the seller. It treats the sale as being void and the purchaser as being a receiver and his possession as being for the benefit of all the creditors. He is like any other receiver so far as his liability is concerned. He is responsible for the property purchased, but for that only. If he gets enough property to pay all the debts, he must pay them all. If the property is not sufficient for that purpose, he must pay the creditors pro rata as any other receiver would do.’ ”

In the case at bar the appellants did not file any pleadings seeking the appointment of a receiver. Their only action was the suit asserting joint liability against both Sparks and Nelson. The ground of recovery against Nelson was that he bought the stock of merchandise from Sparks without complying with the Bulk Sales Law of Texas, Article 4001.

In this case the trial court, upon entering a summary judgment for the plaintiffs, found that the Nelson Company, appellee, had violated the Bulk Sales Law and ordered the appellee to account for the property which had come into its hands.

The Nelson Company promptly filed an itemized inventory of merchandise remaining in its possession purchased from Sparks in August, 1962. The merchandise was sold under orders of the court and the court confirmed the sale of the merchandise and ordered the proceeds of such sale deposited in the registry of the court. The report of the sale by Oakes and Baker showed “that according to the verified inventory filed herein that the S. C. Nelson Company sold and disposed of merchandise which it had acquired from the defendant Sparks prior to the institution of these consolidated suits, which merchandise, had a cost of $794.00 and that the S. C. Nelson Company should be required to deposit the sum of $794.00 in the Registry of this Court, subject to further orders of this Court.” In this instance $794.00 worth of the property had been transferred by the Nelson Company and placed beyond the reach of the creditors, and the court ordered this amount paid by the Nelson Company into the registry of the court, which was done.

A case in which a creditor sought to hold a purchaser who violated the Bulk Sales Law personally liable is that of Gardner v. Goodner Wholesale Grocery Co., supra, in which the court held:

“It will be noticed the statute provides that, when a sale is void as against the creditors, the purchaser shall, ‘upon application of any of the creditors,’ become a receiver and be held accountable to the creditors for the property coming into his possession by virtue of the sale. By ‘application’ we think is meant a formal application to a court of competent jurisdiction, containing allegations of the material facts as to the transaction involved, sufficient to invoke the equitable powers of the court, and to apprise the court and the purchaser of a desire to have the receivership declared and the matter adjudicated as between the purchaser and the various creditors, in accordance with the rules usually governing in an ordinary receivership proceeding. * ⅜ *
“Having jurisdiction of the cause and of the parties, the trial court, under proper proceedings, was authorized to require the purchaser to submit an accounting as to all of the property coming into his possession by virtue of the transfer. If the property had been disposed of, such an accounting should necessarily include information as .to its value at the time.it was received, as well as the amount received by him for the property disposed of. * * * If any property received by the purchaser by virtue of the transfer remained in his possession, the court would be authorized to order its sale. The court should then give notice to all creditors to file and prove their claims, as in an ordinary receivership proceeding, barring such claims as might not be filed within a given time. * * * ”

The Gardner case was followed by the Supreme Court in Settegast v. Second Nat. Bank, 126 Tex. 330, 87 S.W.2d 1070, 102 A.L.R. 680. See also Reynolds v. Groce-Wearden Co., 250 S.W.2d 749, (Tex.Civ.App.) 1952, writ refused; Hobart Mfg. Co. v. Joyce & Mitchell, 4 S.W.2d 185, (Tex.Civ. App.) 1928, n. w. h.; and Southwestern Drug Corporation v. McKesson & Robbins, 141 Tex. 284, 172 S.W.2d 485, 155 A.L.R. 1056, (S.Ct.).

We recognize the rule of law that a trustee who disposes of or converts to his own use trust property, placing it beyond the reach of the creditors, will be held personally liable therefor. Gardner v. Goodner Wholesale Grocery Co., supra; Fischer v. Rio Tire Company, supra.

However, the appellants do not: (1) allege a conversion on the part of the Nelson Company or that Nelson placed the merchandise beyond the reach of the creditors; (2) do not seek an accounting from the Nelson Company; (3) do not seek the appointment of a receiver of the goods, wares and merchandise; (4) do not allege that the sale from Sparks to Nelson was void; and (5) do not allege that by purchasing such goods, wares and merchandise that the S. C. Nelson Company became a trustee or receiver for the creditors of Sparks.

Moreover, the record shows that the merchandise was not placed beyond the reach of the creditors except the portion of the stock of merchandise Nelson sold prior to the filing of the first of the consolidated suits, the cost of which was established to be the sum of $794.00. This amount was deposited in the registry of the court as was the sum of $3,640.00 received from the sale of the merchandise remaining in possession of the Nelson Company, being an aggregate sum of $4,434.00 which the court in its final judgment ordered distributed pro rata among the plaintiffs who were judgment creditors of defendant, G. W. Sparks, they being the only ones who had established any claim thereon.

Applying the law as above cited to the pleadings and record in this case, we think the trial court’s judgment should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Mrs. Neil Edith LONG, Individually and as Independent Executrix of the Estate of Jon R. Long, Deceased, Relator, v. Hon. John L. COMPTON et al., Respondents.
    No. 4428.
    Court of Civil Appeals of Texas. Waco.
    Oct. 7, 1965.
    Motion for Rehearing Dismissed Oct. 14, 1965.
    Wade, Davis, Callaway & Marshall, Clyde M. Marshall, Jr., Ft. Worth, for appellant.
    Nowlin Randolph, Houston, for appellees.
   McDONALD, Chief Justice.

Relator Long prays for Writ of Mandamus directing Hon. John L. Compton, Judge of the 151st District Court of Harris County, and Hon. R. J. (Dick) Lindley, District Clerk of Harris County, to transfer cause 640,087, Mrs. Gene M. Hall v. Mrs. Nell Edith Long, to the District Court of Tarrant County, for trial, and to thereby obey the mandate of this court issued to respondents on May 6, 1965.

The above cause was instituted in Harris County by Respondent Hall against relator Long for damages for wrongful sequestration and conversion of 2 automobiles. Relator Long filed her plea of privilege to be sued in Tarrant County; and subject thereto filed answer and cross-action. The 151st District Court of Harris County overruled her plea of privilege, and she perfected her appeal to the 1st Supreme Judicial District, and the cause was transferred to this court by the Supreme Court. This court, on April 1, 1965, reversed the judgment and rendered judgment transferring the cause to the District Court of Tarrant County. No motion for rehearing was filed by respondent and the judgment of this court became final on April 16, 1965. Mandate to such effect was sent to the 151st District Court on May 6, 1965.

On April 27, 1965 respondent Hall filed a pleading in Cause 640,087 in the 151st District Court “taking a non-suit”; and on such day Hon. Byron Johnson, “Judge Presiding” in the 15lst District Court of Harris County, entered an order dismissing such cause.

The District Clerk of Harris County fails or refuses to transfer the cause to Tarrant County.

The 151st District Court lost jurisdiction of the cause once appeal was perfected to the Court of Civil Appeals. The taking of the non-suit in the 151st District Court of Harris County, and the judgment of dismissal in the 151st District Court, are nullities. When this court rendered judgment transferring the cause to the District Court of Tarrant County, such was a final adjudication of the venue question, binding upon the respondent Hall; and relator’s right to have the entire case removed to Tarrant County cannot be prejudiced by respondent’s attempt to dismiss or to take a non-suit in the 151st District Court of Harris County. Sherrill v. Sherrill, Tex.Civ.App. w/e dismissed, 359 S.W.2d 330; Goodrich v. Superior Oil Co., 151 Tex. 46, 245 S.W.2d 958, 959; Allied Finance Co. v. Shaw, Tex.Civ.App. (n. w. h.), 359 S.W.2d 168; Deatherage v. Kerrigan, Tex.Civ.App., Er. Ref., 294 S.W. 698.

Relator is entitled to writ of mandamus directing Hon. R. J. (Dick) Lindley, District Clerk of Harris County, to perform the ministerial duty of transferring Cause 640,087 to the District Court of Tar-rant County. If the respondent Lindley transfers such cause within 5 days, no writ will issue; otherwise such writ will issue.

Costs are adjudged jointly against Mrs. Gene M. Hall and Honorable R. J. (Dick) Lindley.

No motion for rehearing will be entertained in this case.

TIREY and WILSON, JJ., concur.


author: BELL, Chief Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Donald A. PREBLE, Appellee.
    No. 14693.
    Court of Civil Appeals of Texas. Houston.
    Jan. 27, 1966.

      Joe Resweber, County Atty., Bruce D. Mosier, Asst. County Atty., Houston, for appellant.
    Coleman & Chanslor, Herbert J. Coleman, Houston, for appellee.
   BELL, Chief Justice.

Appellee filed suit under Article 2524-1, Vernon’s Ann.Tex.Civ.St., seeking a declaratory judgment that all suspensions of his operator’s license to operate a motor vehicle that were asserted by appellant for offenses committed after his license had expired by its own terms on March 21, 1963, were of no effect.

The trial court concluded that there was no authority to suspend a license for offenses committed after the date on which appellee’s license expired. However, it held that for offenses committed during the life of the license, the license could be suspended for a period or periods that would make the term of suspension extend beyond the expiration date of the license. It then concluded the suspensions made for offenses committed during the life of the license were effective to suspend the license until May 31, 1965. Under the contention of appellant, appellee’s license stands suspended until May 31, 1968.

The facts are found in the court’s judgment and no challenge is made of the findings. There is no statement of facts. These are the facts found:

1. Appellee’s license expired by its own terms March 21, 1963.

2. On May 31, 1962, the license was suspended for a period of one year on an affirmative finding by appellant that appellee was an habitual violator.

3. On December 14, 1962, appellee was convicted of driving while license was suspended. Under Article 6687b, Sec. 24, Subsection 5(c), this had the effect of automatically extending the period of suspension for another year or until May 31, 1964.

4. On February 1, 1963, appellee was again convicted of driving while his license was suspended and therefore under the cited article there was an additional one year extension of the suspension, which would carry the suspension to May 31, 1965.

The appellee, in his pleading in the trial court and in oral argument before us, admits the suspensions of May 31, 1962 and December 14, 1962 were effective to suspend the license until May 31, 1964, because they became effective before the license expired. While we do not find such an express admission as to the suspension of February 1, 1963, it would seem the admission would also be effective as to this suspension because it became effective during the life of the license. This would carry the suspension to May 31, 1965. The trial court concluded such suspensions were effective until May 31, 1965.

Actually here involved are the successive one year suspensions asserted by appellant as having been imposed automatically when appellee was convicted on May 28, 1963, August 27, 1963 and December 23, 1963, for the offense of driving while license was suspended.

Appellant asserts it does not itself in a case like this suspend the license but the cited statute operates to automatically extend an existing suspension. It contends such additional suspension is a part of the substantive penalty fixed by law for the offense of driving while license is suspended.

Appellee says you cannot suspend that which does not exist and the license to drive ends with its expiration date.

We are of the view that the suspension prescribed by Article 6687b Sec. 24, Subsection (c) is automatic upon conviction for the offense of driving while license is suspended. It is a part of the criminal penalty fixed by law for such offense and becomes effective upon the conviction becoming final. We are further of the view that the suspensions are cumulative and remain in effect until the expiration date of the last suspension, regardless of the fact that the license suspended has expired. The suspensions involved here are not those imposed under authority of law by the Department of Public Safety. They are suspensions automatically imposed by law when a licensee has committed the offense of driving while license is suspended. What is suspended is not merely the license that may have been issued by appellant which is evidence of a license to drive, but the privilege of driving.

Article 6687b, Section 4, Subsection 4, provides appellant shall not issue a license to an operator whose license has been suspended, during the period of such suspension. The necessary meaning of this is that a person has at one time had a license, it has expired or is expiring, so there is need to obtain the issuance of another license, but none can be issued if the applicant’s privilege to drive is in a state of suspension. If a state of suspension ended with the expiration date of the license, as appellee contends, then this provision of the law would be meaningless.

Article 6687b, Section 24, Subsection 5(c), provides that upon conviction for driving while license is suspended, the suspension shall be automatically extended for a like period as the original suspension and that this suspension is in addition to any other penalty assessed as provided in the driver’s licensing law.

Where the statute provides for suspension of a license upon conviction for certain offenses, the statute is self-operative and the license is automatically suspended upon a final conviction. No action by a court, jury or the Department of Public Safety is necessary to effect a suspension of the privilege to drive. Hays v. Department of Public Safety, 301 S.W.2d 276 (Tex.Civ.App.), writ dism.; Gilbert v. State, 152 Tex.Cr.R. 200, 212 S.W.2d 182; Tatum v. Texas Department of Public Safety, 241 S.W.2d 167 (Tex.Civ.App.), writ ref.; Beach v. State, 150 Tex.Cr.R. 193, 199 S.W.2d 1020.

The Court of Criminal Appeals in the case of Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654, over a vigorous dissent, sustained a conviction for the offense of driving while license was suspended where the offense occurred during a period of suspension but after the date of the expiration of the license.

In the case of Pipes v. State, 166 Tex.Cr.R. 463, 314 S.W.2d 313, the same court, again over a vigorous dissent, sustained a conviction for driving while license was suspended, when the evidence merely showed that a license had at one time been issued and had been suspended. The expiration date of the license was not shown.

Each of the above cases involved suspensions that were made automatic by statute because of a conviction for specified offenses.

In the case of Tatum v. Texas Department of Public Safety, supra, the Austin Court of Civil Appeals held there was no appeal from the refusal of the Department of Public Safety to issue a new license while an old license was in a state of suspension by virtue of successive periods of automatic suspensions. The effect of the holding is that automatic suspensions are effective to suspend the privilege to drive regardless of the expiration date of the license that had been issued. Too, it held the periods of automatic suspension were cumulative. A very thorough analysis is made of the pertinent statutory provisions. It is significant that the Supreme Court unqualifiedly refused a writ of error.

Appellee relies on Bryant v. State, 163 Tex.Cr.R. 544, 294 S.W.2d 819; Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, and, Department of Public Safety v. Austin, 163 Tex. 280, 354 S.W.2d 376.

Bryant is distinguishable on the ground that the evidence failed to show there had ever been a suspension; a license had merely expired. Conviction for driving while license was suspended could not stand where it had never been suspended.

In Boston our Supreme Court did dismiss an appeal as moot and expressly stated it was moot because the license which the Department had suspended had expired. The proceeding involved a suspension ordered by the Department and did not involve an automatic suspension fixed by law as a part of the penalty fixed by law for driving while license was suspended.

It seems to us, however, that Austin is not contrary to what we hold. There the Department, under authority of Article 6687b, Section 22, Subsection b(4), suspended Austin’s license because he had driven his automobile while his license was suspended, though he was only charged with the penal offense of speeding. Austin appealed from the Departmental order to the County Court at Law. The trial court set aside the order and the Department appealed to the Court of Civil Appeals. As best we can calculate the period of suspension, it would have expired December 11, 1960, except for the fact that under Section 22, an appeal has the effect of suspending the suspension. (See also Drake v. Texas Department of Public Safety, 393 S.W.2d 320 (Tex.Civ.App.). On February 21, 1961, the Department issued a new license, the old one having expired. The Court of Civil Appeals dismissed the appeal because it was moot and relied on Boston v. Garrison, supra; Stogner v. State of Texas, 309 S.W.2d 470 (Tex.Civ.App.), n. w. h.; and Hoover v. Texas Dept. of Public Safety, 305 S.W.2d 228 (Tex.Civ.App.), n. w. h. The Supreme Court, however, held the appeal was not moot. It noted that in Boston the period of suspension had itself expired. It noted that in Austin the license had expired and a new license had issued. To us the effect of this case is to hold that a suspension, even though it was not an automatic one, would be effective beyond the expiration date of a license. If this is not true, the appeal would have been moot. If it be urged that a new license had issued and the period of suspension, if sustained, as it was on reconsideration by the Court of Civil Appeals, would operate to suspend the new license, the effect still is to hold the privilege to drive may be suspended beyond the expiration date of a license. This is true because the court is making effective as against a subsequently issued license, a suspension that was made prior to its issuance for acts committed prior to its issuance.

We, therefore, reverse the judgment of the trial court insofar as it declared the suspensions of appellee’s operator’s license for the convictions occurring past March 21, 1963, are ineffective. We render judgment declaring that appellee’s convictions for driving while license is suspended on May 28, 1963, August 27, 1963, and December 23, 1963, were each effective to automatically suspend his privilege to operate a motor vehicle for an additional one year period; that the periods of suspension are cumulative; and, that such license or privilege to drive stands suspended until May 31, 1968.

Reversed and rendered.


author: NORTHCUTT, Justice.

text:
    L. E. ING, Appellant, v. Emma CANNON, Appellee.
    No. 7547.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1965.
    Rehearing Denied Jan. 17, 1966.
    Frank D. McCown, Dumas, for appellant, C. Ronald Gaines, Dumas, of counsel.
    Guy Hardin, Shamrock, Royse & Meach-am, Elk City, Okl., for appellee.
   NORTHCUTT, Justice.

This is a statutory trespass to try title suit with a plea for petition of the south one-hundred acres out of the southeast one-fourth (S.E.14) of Section seventy-six (76), Block a-S of the H. & G. N. Ry. Co. Survey of Wheeler County, Texas. The suit was originally brought by Emma Cannon against L. E. Ing. Emma Cannon died before the case was tried. After the death of Emma Cannon, her heirs, Bertha Rogers, Leo F. Smith, Alfred C. Smith, Henry Smith, and Jane Kimbrough, intervened in the suit and sought judgment for the title to an undivided one-half interest in and to the above-mentioned real estate which they contended was the property of Mae Ing. A jury having been waived, the case was tried before the court and upon conclusion of the presentation of the evidence, the court rendered judgment in favor of the heirs of Emma Cannon, granting them one-half of the above-mentioned property. From that judgment L. E. Ing perfected this appeal. Hereafter L. E. Ing, being the same person referred to here as Earl Ing, will be referred to as appellant; and the above-mentioned heirs of Emma Cannon as appellees.

It is undisputed that J. H. Ing and Mae Ing were married in the State of Oklahoma in 1914; that at the time of their marriage J. H. Ing owned a 40-acre tract of land in Oklahoma; that in 1917 they moved a house onto this tract and that they lived on it until 1932 at which time they moved to Elk City, Oklahoma, and resided for a time in the home of Emma Cannon who was Mae Ing^s mother; that in 1932 the 40-acre tract in Oklahoma was traded in on a 100-acre tract of land in Texas and the title to the Texas land was taken in the name of J. H. Ing, which land is the subject of this controversy; that in addition to the 40-acre tract, as improved, a balance of a mortgage to the Federal Land Bank of Houston, Texas, in the amount of $1593.96 was assumed by J. H. Ing as part of the trade; that this mortgage was paid off in 1933; that J. H. Ing died in 1936; that the will of J. H. Ing was probated in the County Court of Beckham County, Oklahoma; that Mae Ing elected to take under the will in Oklahoma; that there has been no administration or probate proceedings in the estate of J. H. Ing in the State of Texas; that Mae Ing and J. H. Ing had no children of their marriage; that J. H. Ing had one son, L. E. Ing, the appellant, and one daughter, Beulah Ing by a prior marriage and that he'had no other children; that J. H. Ing and Mae Ing were at all times from 1914 to 1936 married and residents of the State of Oklahoma; that Mae Ing died intestate in the State of Oklahoma in January of 1963 and left as her sole and only heir Emma Cannon, her mother, who died in November of 1963, while this suit was pending.

J. H. Ing left a will in which he willed all his property whether community or not, both real and personal, to his wife, Mae Ing, subject to certain conditions thereafter set forth to occupy and collect the rents and profits therefrom as long as she might live. In the next paragraph of his will it is stated: “I give and bequeath unto my beloved son, Earl Ing, should he survive me and my said wife, the whole of the- real property belonging to me at my death, subject only to the life estate herein-before devised to my wife * * * ” In Paragraph Three of said will it further provides as follows:

“I further declare that the disposition of my property hereinbefore made in this will is made conditioned that my said wife take under this will and that in event she should elect to take under the law instead of under this will, I will and devise the whole of my said estate whether personal, mixed or real, no matter where located, subject only to the payment of my just debts, costs of administration, and the widows share, unto my beloved son, Earl Ing, if living * * * ”

We are familiar with the rule that all property acquired in this state during the marital relationship shall be determined community property of both unless the conveyance under which title was acquired contained language evidencing the intention that it should be the separate property of one or the other of the spouses. It is also true that as to land situated in Texas the laws of this state will control the nature of the property rights acquired by non-resident persons. Roswurm v. Sinclair Prairie Oil Co., Tex.Civ.App., 181 S.W.2d 736 (writ refused wm.).

It is admitted by appellees that Mae Ing elected to take under the will of J. H. Ing which was probated by her in the State of Oklahoma. The proof also shows Mae Ing elected to take under the will of her husband, J. H. Ing. At all times pertinent to the matters here involved Oklahoma was a common law state and that all property and earnings of the husband during marriage was the separate property. The election of Mae Ing to take under the will in Oklahoma is operative as to the land in Texas. Huston v. Colonial Trust Co., Tex.Civ.App., 266 S.W.2d 231 (N.R.E.).

Since Mae Ing took under the will of J. H. Ing, we think the sole matter to be here determined is one of law, to-wit : whether the will is open to no other construction than that J. H. Ing intended to dispose of the property (community interest) of Mae Ing as well as his own community half. Any interest the appellees might have in the property here involved depends upon what interest Mae Ing had at the time of her death. It is stated in Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 as follows:

“If the will does not dispose of property of the beneficiary, the latter is not put to an election, but may simply take what the will gives and also take his or her own community half interest. On the other hand, if the will disposes of property of the beneficiary and at the same time gives the latter some ‘benefit’, however small, the beneficiary cannot take the benefit under the will without accepting also the disposition it makes of his or her own property. In the latter case, where a community interest is involved, the beneficiary must accordingly elect between taking under the willy with consequent loss as well as benefit, and, on the other hand, repudiating the will and taking only his or her community half interest independently of the will. In determining whether the will disposes of property of the beneficiary, the rule is, of course, that it does not so dispose unless it is ‘open to no other construction.’ Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, 544. See also Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569; Smith v. Butler, supra [85 Tex. 126, 19 S.W. 1083]; Schelb v. Sparenberg, 133 Tex. 17, 124 S.W.2d 322; Baldwin v. Baldwin, 134 Tex. 428, 135 S.W.2d 92; Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065; Farmer v. Zinn, Tex.Com.App., 276 S.W. 191. And for construction purposes, the will in its entirety must be looked into. Sailer v. Furche, supra; Cheatham v. Mann, Tex.Civ.App., 133 S.W.2d 264, writ of error refused. If the will is open to a different construction, that is, if it is ambiguous to this or a greater degree on the point, then, as a matter of law, the beneficiary is not required to elect, since as a matter of law his or her property is not disposed of by the will. This is the rule of all the decisions hereinabove cited.”

See also Daken v. Daken, 125 Tex. 305, 83 S.W.2d 620, where it is stated:

“The law does not permit the husband to devise either separate property or community property of the wife, without her consent; but if he attempts to do so, and she accepts under the will, as devisee, rights she would not otherwise be entitled to, she is estopped from questioning the disposition of her property upon the doctrine of election. Smith v. Butler, 85 Tex. 126, 19 S.W. 1083; Gilroy v. Richards, 26 Tex.Civ.App. 355, 63 S.W. 664; Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569; Chace v. Gregg, 88 Tex. 552, 32 S.W. 520; Lee v. McFarland, supra [19 Tex.Civ.App. 292, 46 S.W. 281]; Speer’s Marital Rights, § 323, p. 399.”

The law presumes that a testator intends to dispose of only his own property and the testamentary instrument will not be construed to dispose of property not owned by the testator unless that result is indicated by clear and unequivocal language which leaves the will open to no other construction. Davis v. East Texas Savings & Loan Ass’n, 163 Tex. 361, 354 S.W.2d 926 and the cases there cited.

We are of the opinion, and so hold, that the will here in question clearly attempted to dispose of his interest in the property here involved as well as the interest of his wife by giving her a life estate in all of their real property. The appellant, Earl Ing, under the terms of the will was bequeathed the real estate here involved subject only to the life estate devised to Mrs. Ing. Since J. H. Ing sought to devise the community property of his wife and sought to give her a life estate in his community property, she had the right to make an election. She could take a life estate in all the property or take her community property. She elected to take under the will and if living would have been estopped from questioning the disposition of her property under the doctrine of election. Mrs. Ing, having elected to take a life estate under the will and having died, there was no interest for the appellees to receive. Judgment of the trial court is reversed and here rendered that appellees, Bertha Rogers, Leo F. Smith, Alfred C. Smith, Henry Smith, and Jane Kimbrough, recover nothing by their suit.

Judgment of the trial court is reversed and rendered.


author: CHAPMAN, Justice.

text:
    PAN AMERICAN INSURANCE COMPANY, Appellant, v. Johnny Earl CLAUNCH et al., Appellees.
    No. 7550.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1965.
    Rehearing Denied Jan. 17, 1966.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.

      Gordon, Gordon & Buzzard, James M. Bowers, Pampa, for appellees.
   CHAPMAN, Justice.

Appellant, Pan American Insurance Company, filed suit against Johnny Earl Claunch and others seeking a declaratory judgment judicially determining that its insurance policy issued to Claunch provided no coverage for an accident occurring subsequent to the date of the issuance of the subject policy. The case was tried to a jury and a verdict instructed against the insurance company at the close of the testimony. One point of error is urged, appellant contending there was a fact issue raised as to whether the policy of insurance issued to Claunch contained an endorsement excluding Claunch as an assured.

At the time of Claunch’s application for insurance was made to the Texas Motor Vehicle Assigned Risk Plan on July 15, 1963, he was under a driver’s license suspension resulting from a conviction for driving while intoxicated. The application disclosed this fact and stated he was then eligible to have his driving license restored. He certified that he had tried but had been unable to obtain liability insurance in Texas. In a supplement to his application he also recited his understanding that proof of financial responsibility would not automatically reinstate his license and he would not drive any motor vehicle until the driver’s license was actually reinstated. The form also recited that driving before the time his license was restored would be sufficient cause for cancellation of the insurance.

These described forms were sent to the Texas Motor Vehicle Assigned Risk Plan with the required premium. The application was assigned to appellant and received by it on July 22, 1963. The premium was accepted as the correct amount of the standard premium for owner’s coverage and additional risk surcharge and other surcharges for SR 22 filing. The SR 22 supplied to Claunch was dated July 25, 1963, and mailed to Duncan Insurance Agency at Pampa, along with the policy. The correct filing fee and SR 22 were then mailed to the Department of Public Safety and Claunch’s driver’s license was restored to him on August 18, 1963.

On October 3,1963, Claunch was involved in an automobile collision within the City of Pampa while driving the insured automobile, a 1963 Plymouth Sedan. One of the victims was Benny Bennett, who filed suit against Claunch and secured a judgment for $6,000, which was affirmed by this court in an opinion announced on September 20, 1965. No motion for rehearing was filed in our court following said opinion.

The subject policy listed Johnny Earl Claunch as the insured and described as an owned automobile a “1963 2-dr. sedan.” It promised to pay on behalf of the insured all sums he would become legally obligated to pay because of:

“A. Bodily injury * * * sustained by any person;
B. Injury to or destruction of property * * * arising out of ownership, maintenance or use of the owned automobile or any non-owned automobile, * *

Appellant’s contention that the policy did not cover the collision of October 3, 1963, is based on its claim that it contained an endorsement described as Form 119, and which will be hereinafter referred to as End. 119. It provided that the policy did not apply to any claim arising from accidents which occur while any automobile is being operated by Johnny Earl Claunch.

We believe the contention of appellant is without merit and that no fact issue was raised in the trial court from which this appeal was perfected.

When one is convicted of an offense whereby the law also suspends his driver’s license, Article 670lh, Sec. 17(b), Vernon’s Ann.Tex.Civ.St. provides the license shall remain suspended “* * * until he shall give and thereafter maintain proof of financial responsibility.” Section 18 of said article provides alternate methods of making the proof required in 17(b), one of which is a certificate of insurance as provided in Sec. 19 of the article. That section prescribes a written certificate of motor vehicle liability insurance which “ * ⅜ * shall designate by explicit description or by appropriate reference all motor vehicles covered thereby, unless the policy is issued to a person who is not the owner of a motor vehicle.”

The motor vehicle liability insurance policy which is to be certified pursuant to Sec. 19 is described in various subsections of Sec. 21. Subsection (b) thereof repeats the required designation of Sec. 19 to the effect that all vehicles shall be explicitly described and then provides for the obligation of the insurer on behalf of the insured named therein resulting from damages arising out of the ownership, maintenance or use of such motor vehicle.

Subsection (c) of Sec. 21 provides an operator’s policy shall pay such sums as the insured shall become legally obligated to pay as damages arising out of the use by him of any vehicle not owned by him.

The certificate of insurance required for making proof of financial responsibility to secure restoration of license after suspension is the form SR 22 that appellant supplied Claunch. It followed Sec. 19 carefully in certifying owner’s coverage, leaving unchecked the block used to identify an operator’s policy. It described the automobile owned.

The certification by appellant of an owner’s policy of liability insurance was a representation to the Department of Public Safety that it had agreed under the provisions of Sec. 21(b) to be obligated for such sums as Claunch should be required to pay as damages arising from his use of the owned automobile, within the limits of the policy. Undoubtedly, the restoration by the Department of Public Safety of his license was related to such certification.

Appellant cites as authority for its position three cases. The Albares case was not one where proof of financial responsibility was required, there being no pleading or proof that Silas Collins, the insured, had ever had an automobile accident. The court said:

“There is no pleading or proof in this case that Silas Collins, the insured had ever had an automobile accident, that his license had ever been suspended or revoked or that he was required to furnish proof of financial responsibility. Neither is there proof that the policy in suit was ‘certified’ to the Department of Public Safety as provided by the Act.”

Other cases discuss the question of certified coverage, the court in National Surety Corporation v. Diggs, Tex.Civ.App., 272 S.W.2d 604 (N.R.E.) saying:

“Unquestionably such responsibility in the form of insurance policies would have the peculiar propensity and purpose to protect the public as the primary object rather than the protection of the policyholder. * * * As to the second classification, ‘motor vehicle liability insurance’, as defined in the Act, is a form of proof of financial responsibility, and where it is the applicable evidence thereof it would be ‘insurance required by this Act’. However, within the second classification, — those who are required to have financial responsibility as a prerequisite to subsequent motor vehicle operation, — come only those persons who have been guilty in the past of some character of penal offense, a part of the punishment for which entailed the Department of Public Safety’s suspension or revocation of their licenses to operate motor vehicles.” (Emphasis theirs).
* * *
“It is plain that by the provisions of law any insurance company issuing such a policy is placed on notice that in the event its policyholder should have an accident the company’s contractual liability becomes absolute as of that time and is not subject to avoidance because of any violation by its policyholder of conditions recited in the contract to be conditions precedent to company liability.”

The San Antonio Court of Civil Appeals in writing on the application of Art, 6701h to a first automobile accident speaks of absolute insurance when a certificate is furnished showing coverage. (Emphasis ours). McCarthy v. Insurance Company of Texas, Tex.Civ.App., 271 S.W.2d 836, syl. 1 (N.W.H.). That court said: “The sum of the above analysis is that absolute coverage results when a certificate has been furnished.”

Our court in following the McCarthy case in a first accident situation said of the policy there under discussion: “Therefore, the policy not being required by the Texas safety responsibility act in advance of the first accident, the act was not applicable so as to make it a part of the policy. Accordingly, the insurance [in that case] was for the benefit of the insured alone and not for the benefit of the public, * * * ” thus indicating the certificate of insurance as being for the benefit of the public. United States Casualty Company v. Brock, Tex.Civ.App., 345 S.W.2d 461 (writ refused). (Parenthetical statement added).

In the Swinney and Chatham cases relied on by appellant an altogether different situation is presented than in the instant case. The parties there made proof of financial responsibility in compliance with Sec. 21 (c) for operator’s policy. (Emphasis ours). Neither owned a vehicle at the time, but later acquired them. An operator’s policy provides coverage for liability for damage from use of a non-owned vehicle. The insureds’ certifications were the only ones they could have correctly made, since they did not at the time own automobiles. In those cases the insurers were not contesting certified coverages, but defending on the coverages certified.

In any event appellant’s agreement to delete the policy exclusion, End. 119, upon receipt of information that Claunch’s driver’s license had been restored precluded, in our opinion, a finding of a fact issue.

Appellant’s underwriter, Bill McCann, testified End. 119 was attached to the policy at the time it and SR 22 were delivered to Duncan Insurance Agency. Kirk Duncan of that agency testified it was not. Considerable correspondence is shown in the record between Mr. Duncan and appellant concerning End. 119, and End. 204, the latter having relation to the recent increase of limits. Mr. Duncan contended in the correspondence that End. 119 was not applicable because * * * “The insured is in the process of getting his license back.” In reply thereto appellant responded with a letter of August 20,1963, in which it said, inter alia:

“Until the assured obtains his license back, we still need the 119 endorsement. When he receives it back if you will forward the information to this office we shall delete the 119 endorsement. In the meantime, please forward the copy we sent to you, signed by the assured.” (Emphasis ours).

On August 26, 1963, Duncan Insurance Agency informed appellant by letter that Claunch’s license had been reinstated. The record shows a stipulation of the parties that it was restored on August 18, 1963, the suspension having been lifted on August 9, 1963, in Safety Responsibility Case No. C-199516.

After the August 26 communication from Duncan Insurance Agency advising Claunch’s license had been restored there appears to have been no communication concerning End. 119 until Claunch’s collision with Benny Bennett on October 3, 1963. The record shows that twenty days later appellant wrote one of the passengers of the Claunch vehicle as follows:

“Our company is the liability carrier for Mr. Johnny Earl Claunch. It has been reported that you were a passenger in a vehicle driven by him which was involved in an accident on October 3, 1963, in Pampa, Texas.”

It appears obvious that the deleting of End. 119 was considered by the parties to be automatic upon appellant being furnished information of the restoration of the driver’s license of Claunch. The text writer in 30 C.J.S. Equity § 106, p. 1072, speaks thusly:

“It has frequently been stated as a maxim that equity regards as done that which ought to be done. The maxim is expressed in similar language in various cases, such as that equity regards and treats as done that which in fairness and good conscience ought to be done or should have been done, or that equity considers as done that which ought to be done.
“The maxim has been said to be equity’s favorite maxim. It is closely connected with the maxim discussed infra § 107 that equity regards intent and substance rather than form, * *. ”

The maxim appears particularly applicable to the instant case.

For all the reasons stated, we hold no fact issue was raised, and that the trial court properly instructed a verdict. Therefore, the judgment of the trial court is affirmed.

      . SR 22 is a form prescribed by the Department of Public Safety showing evidence of insurance as required by the Financial Responsibility Law and describes the type of coverage afforded.

      . “Proof of financial responsibility is satisfied under the requirements of Art. 6701h by issuance of two Mnds of liability policies, either an ‘owner’s’ or an ‘oper-erator’s’ policy; * * *." State Farm Mutual Automobile Ins. Co. v. Chatham, Tex.Civ.App., 318 S.W.2d 684 (N.W.H.); Art. 6701h, Section 21, subsections (a), (b) and (c).

      . Western Alliance Insurance Company v. Albarez, Tex.Civ.App., 380 S.W.2d 710 (N.R.E.) ; State Farm Mutual Automobile Ins. Co. v. Chatham, Tex.Civ.App., 318 SW.2d 684 (N.W.H.) ; Swinney v. Pioneer Casualty Co., Tex.Civ.App., 348 S.W.2d 462 (N.W.H.).


author: DENTON, Chief Justice.

text:
    L. J. FLOWERS, Individually, and d/b/a Flowers Tank Company, Appellant, v. STEELCRAFT CORPORATION, Appellee.
    No. 7548.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1965.
    Rehearing Denied Jan. 17, 1966.

      Robinson & Fotheringham, Amarillo, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
   DENTON, Chief Justice.

L. J. Flowers, individually and d/b/a Flowers Tank Company brought suit on a sworn account against Steelcraft Corporation, a Texas corporation. The trial court sustained the defendant’s plea in abatement and dismissed the plaintiff’s cause of action. The plaintiff has timely perfected this appeal.

The plaintiff alleged the defendant, corporation was indebted to him in the amount of $5,954.68, plus attorneys’ fees, for personal services rendered and labor for the erection of storage tanks in Granada, Colorado, at the instance and request of the defendant. The petition alleged a cause of action against “Steelcraft Corporation, a Texas corporation”, and personal service was had by serving Walter House, Jr., president of the Texas corporation. The defendant answered by general denial and plea in abatement which alleged the defendant was not liable in the capacity in which it was sued. Attached to the answer was the affidavit of Willard F. Dodd which denied Steelcraft Corporation, a Texas corporation, at any time ordered or received any merchandise or equipment from the plaintiff; and that the said Texas corporation never at any time entered into any contract for the erection of tanks at Granada, Colorado. The affidavit also contains the following statement:

“Affiant states that one Mark A. Taylor, shown on the purchase order attached to said Exhibit ‘A’, is the registered agent for service of a Colorado corporation, incorporated as ‘Steelcraft Corporation’ in that state with address at 10 Highland, Lamar, Colorado.”

A separate hearing was held on the plea in abatement. It was undisputed the corporate officers of the Texas corporation were Walter J. House, Jr., president; Willard F. Dodd, vice-president; and Verna House, secretary-treasurer. The corporate officers of the Colorado corporation were Willard F. Dodd, president; Mark A. Taylor, vice-president; and Walter J. House, Jr., secretary-treasurer. The purchase order in question was made to “Steel-craft Corporation, Box 3499, Amarillo, Texas.” It described the tanks to be erected by the plaintiff and the amount to be paid and was signed “Steelcraft Corporation, Purchasing Agent, per Mark A. Taylor.” A telegraphic confirmation sent from Amarillo, Texas, was signed “Steel-craft Corporation, Willard Dodd.” Other communications were introduced into evidence, but none of them spelled out which corporation the sender was representing, with the exception of a letter of June 6, 1963, which was signed “Steelcraft of Colorado, Mark A. Taylor, Vice-President.” This letter, written several months after Flowers had completed the work, informed Flowers that the tanks were not “gas tite”, and that additional work was required to make them so. .

The fundamental distinction between a plea in bar and a plea in abatement is that a plea in bar is calculated to defeat the asserted cause of action altogether and for all time; while a plea in abatement merely defeats the present proceeding. Taliaferro v. Warren, (Tex.Civ.App.), 30 S.W.2d 393; City of Denton v. White, (Tex.Civ.App.), 179 S.W.2d 834, (Error Refused, W.M.); 1 Tex.Jur.2d, Abatement and Revival, Section 4, page 20. The matters set out in appellee's plea were matters in abatement rather than in bar. No attempt was made to attack appellant’s cause of action as such. It is not alleged appellant had no cause of action for the alleged labor and services rendered, but that the cause of action was not being brought against the proper defendant. We think appellee’s plea in abatement was the appropriate plea under the circumstances.

The affidavit of Willard Dodd, together with the additional testimony offered, conclusively shows there were two separate and distinct corporations with the identical name of “Steelcraft”. One was a Texas corporation and the other a Colorado corporation. Some of the stockholders were common to both corporations, but each had a stockholder not common to the other. Dodd, a stockholder in both corporations, was president of the Colorado corporation and vice-president of the Texas corporation. Walter J. House, also a common stockholder, was president of the Texas corporation and vice-president of the Colorado corporation. Mark A. Taylor, the vice-president of the Colorado corporation, was neither a stockholder nor a corporate officer of the Texas corporation. There is nothing in this record to indicate he had any connection whatsoever with the Texas corporation. Appellant performed the work in the State of Colorado, and there is positive testimony the Texas corporation was not engaged in any business activities in Colorado. Mr. Flowers testified he was told to forward the statement to an Amarillo address, and that he was under the impression he was dealing with a Texas corporation. This testimony is not material nor persuasive. There are no allegations of fraud or misrepresentations on the part of appellee or its officers. Appellant does not plead nor urge estoppel. We are of the opinion, and so hold, the evidence supports the material allegations of appellee’s plea in abatement.

This is not a case where a plaintiff sues one of two corporations having similar names. In such cases it has been held that a party who has been sued may, under some circumstances, be bound by the judgment rendered even though there has been some mistake in his name as set out in the pleadings, citation, and judgment. Abilene Independent Telephone & Tel. Co. v. Williams, 111 Tex. 102, 229 S.W. 847. In the instant case we have a situation where there is a mistake as to which of two corporations is liable and the plaintiff sues the wrong corporation. We think this is true even though it may be argued Flowers did not realize there were in fact two corporations. The citation gave the name of the defendant as “Steelcraft Corporation, a Texas corporation” and was returned as served on “Steelcraft Corporation by serving Walter House, Jr., President.” It is undisputed Mr. House was president of the Texas corporation. The Colorado corporation was not a party to this suit and had no notice of it. We conclude this case is governed by the reasoning and rule laid down by the following authorities: Nail v. Wichita Falls & Southern Railroad Co. (Tex.Civ.App.), 294 S.W.2d 431; Cosand v. Gray Wolfe Co. (Tex.Civ.App.), 262 S.W.2d 547; Gillette Motor Transport Co. v. Whitfield, Tex. Civ.App., 160 S.W.2d 290; Krenek v. Epps Super Market No. 2, Inc., Tex.Civ.App., 377 S.W.2d 753. These cases hold that if the wrong person or corporation is sued, the court does not in the absence of an answer or appearance acquire jurisdiction of the person or corporation who should have been sued even if the pleadings are amended. Where it was established by probative evidence that the appellee was not the corporation liable for the services sued upon and it was the only party defendant, the trial court properly dismissed the suit.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    CITY OF CARTHAGE, Texas, et al., Appellants, v. Bud ALLUMS et al., Appellees.
    No. 213.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 20, 1966.
    Rehearing Denied Feb. 10, 1966.

      Tom Bankhead, Bankhead & Davis, Carthage, for appellants.
    J. E. Jackson, Carthage, for appellees.
   MOORE, Justice.

This is an appeal from a temporary injunction restraining appellants, City of Carthage and its building inspector, John A. Mills, from enforcing the provisions of a zoning ordinance and also restraining the prosecution of criminal proceedings in the enforcement thereof. Bud Allums, as plaintiff, brought this action against the city alleging that he was the owner of a building situated in the City of Carthage which was being used by him and his partner, Fred Whitaker, for the lawful purpose of conducting a slaughterhouse and meat packing business thereon. He alleged that for more than ten years prior to the time of the filing of this suit, he and his lessees had continuously used the building and surrounding premises as a meat market and a slaughterhouse; that in April, May or June of 1961, the city adopted “The City of Carthage Zoning Ordinance” which classified the area in which his meat market and slaughterhouse was situated as a one-family residential area, but that his property was exempt from the provisions of the ordinance because Article VI thereof provided for a continuation of any existing use then being made of the property as a lawful “non-conforming” use. His petition further alleges that despite the fact that the premises had been used continuously as a meat market and slaughterhouse for a period of more than ten years prior to this suit, the city building inspector had ordered such use discontinued and had filed a criminal complaint against one of his employees charging that the operation of the slaughterhouse was unlawful and in violation of the ordinance. The petition further alleges that unless the city is restrained, irreparable loss and injury will result to the business.

The “non-conforming uses” are provided for in Section 1 of Article VI of the ordinance as follows:

“Any non-conforming use of land or structures may be continued for definite periods of time, subject to such regulations as the Zoning Board of Adjustment may require for immediate preservation of the adjoining property and the ultimate removal of the nonconforming use. If, however, a continuous operation is not carried on in such non-conforming use during a continuous period of one (1) year, the building other structure or tract of land where non-conforming use previously existed shall thereafter be occupied and used only for a conforming use. Intent to resume active operation shall not affect the foregoing.”

Section 1 of Article VIII provides for appeal to a Board of Adjustment as follows :

“Appeals may be taken to and before, the Board of Adjustment by any person aggrieved, or by any officer, department, board or bureau of the City. Such appeal shall be taken by filing with the office of the Board, a notice of appeal and specifying the grounds thereof. * * * ”

Article XI prescribes a penalty for noncompliance, punishable by a fine of not more than $200.00 for each day the violation is permitted to exist.

It is without dispute that the appellees failed to appeal the order of the building inspector to the Board of Adjustment.

The City of Carthage answered with a plea to the jurisdiction alleging that the court was without jurisdiction because ap-pellees had failed to exhaust their legal remedy by way of an appeal to the Board of Adjustment. The city further alleged that if the appellees’ property was ever subject to the non-conforming use provisions, such use had been abandoned for a period of more than one year and therefore the injunction should be denied.

After a hearing the court granted a temporary injunction, enjoining the enforcement of the ordinance and also enjoining the city from prosecuting criminal complaints in connection therewith. The City of Carthage has perfected this appeal and seeks a reversal based upon 4 Points of Error.

Generally speaking, a non-conforming use existing at the time a zoning ordinance goes into effect cannot be prohibited or restricted by statute or ordinance where it is a lawful business or use of property and is not a public nuisance or harmful in any way to the public health, safety, morals or welfare. If, when a zoning ordinance was adopted, the premises were used for a non-conforming use, one is within his rights in continuing that use. A zoning ordinance cannot deprive the owner of the use to which the property was put before the enactment of the ordinance. Ordinarily it is essential to the right to a nonconforming use within, a zoned district that the use be commenced before the zoning restriction in question was imposed in the district, and that it existed when zoning or the restriction became effective. The test is that the use must be the same before and after the zoning restriction becomes effective. The non-conforming use must be the continuance of the same use and not some other kind of use. In accordance with the foregoing discussion, a non-conforming use will not be recognized in the absence of sufficient evidence to prove it was in existence at the time the ordinance was enacted and that it has continued in existence. But where there is ample evidence to support a conclusion that a present use is a continuation of a use existing at the time of the enactment of a zoning ordinance, the present use cannot be interfered with by zoning authorities.

Existing non-conforming businesses in a zoning area must be permitted to continue to do business as they had existed prior to any zoning ordinance. Any attempt to eradicate such business is regarded as a misuse of the police power of a state and is unreasonable and unconstitutional as a taking of private property without compensation and without due process of law. McQuillian on Municipal Corporations, 3d Edition, Vol. 8, pp. 363-364, 371-373; Allen v. City of Corpus Christi, 247 S.W.2d 130, (Tex.Civ.App.); City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759.

In its first two Points of Error the city contends that the trial court was in error in overruling its plea to the jurisdiction because it was shown without dispute that the appellees had not first exhausted their legal remedies by appealing the order of the building inspector to the Board of Adjustment, as provided for in the ordinance. These points are without merit and are accordingly overruled.

In 63 Texas Jurisprudence 2d, (Zoning) pp. 980, 981, it is stated:

“Where the enforcement of a zoning ordinance or regulation causes irreparable damage to a person’s property rights, he may attack the constitutionality of the ordinance or regulation as it relates to his particular property by an action to enjoin its enforcement and to restrain the zoning authorities from interfering with his use of the property, or from prosecuting criminal proceedings against him for alleged violation of the enactment, or threatening to institute criminal proceedings. This he may do though the general validity of the enactment is unquestioned, if its application to his property results in unwarranted interference with constitutional rights.* * *"

The matter of whether or not there was a non-conforming use in existence at the time of the adoption of the ordinance and whether such use had been continuous are questions of fact.

As hereinabove noted, Section 1 of Article VIII of the ordinance grants a right of appeal to the Board of Adjustment from the order of the building inspector refusing to issue a permit. This right, however, avails the appellees nothing since the undisputed evidence shows that the city was threatening to enforce the penalties by the prosecution of criminal complaints. Cabell’s, Incorporated v. City of Nacogdoches, (Tex.Civ.App.) 288 S.W.2d 154.

The enforcement or threatened enforcement of the zoning enactment by criminal process constitutes irreparable injury in that it would result not only in the destruction of appellees’ business, but also the loss of the potential right of the non-conforming use. Where the city undertakes to summarily enforce the ordinance by invoking the penal provisions, an appeal to the Board of Adjustment is not sufficient to prevent the immediate destruction of appellees’ property rights. In order to protect such property rights, due process would require a judicial determination of the question of non-conforming use. Appellees’ property rights will depend upon a determination of those facts upon a final hearing.

In Point 3 the city contends that the court erred in granting the temporary injunction because the undisputed evidence shows that on the date of the adoption of the ordinance, the premises were not then being used as a slaughterhouse and therefore the non-conforming use provision found in Article VI thereof does not apply. In the alternative, it is contended that the undisputed evidence shows that even though a non-conforming use existed, appellees abandoned such use for more than one year and a revival thereof not being permitted, the present use as a slaughterhouse constitutes a violation.

In the City of Amarillo v. Garwood, Tex.Civ.App., 63 S.W.2d 888, the court states the law applicable in regard to the temporary injunction as follows:

“We are passing here only on the action of the trial court in issuing the temporary injunction pending a full and final hearing. The propriety of his action will be ‘determined from the probability of right and the probability of injury thereto if the injunction be not granted, as shown by the pleadings and evidence addressed to those questions. The substantive rights of the parties are not necessarily nor usually determined upon an application for a temporary injunction.’ 24 Tex.Jur. p. 179. The trial court having entered a judgment after hearing, it is our duty to sustain his action if there appears in the record here a sufficient showing of a right in appellees to be protected and a threatened impairment or destruction of that right pending a final hearing and these need not be established with absolute certainty on application for temporary injunction. Rosenfield v. Seifert, (Tex.Civ.App.) 270 S.W. 220. The courts have some discretion in matters of this character. 24 Tex.Jur. § 211.”

The question before us is whether the trial court abused its discretion in entering the temporary order restraining enforcement of the ordinance. In granting appellees the relief as prayed for, the trial court, by implication, found and concluded that there was at least a probability that the non-conforming use existed at the time of the adoption of the ordinance and such use had been continuous.

The city contends that such implied findings are not supported by evidence. While the evidence upon the question is conflicting, when viewed in a light most favorable to the appellees, we think the implied findings have support in the testimony and are therefore sufficient to support the exercise of discretion. Huston v. Throckmorton County, (Tex.Civ.App.) 215 S.W.2d 387.

On appeal from an order for temporary injunction, the scope of review is limited to the narrow question of whether the trial judge abused his discretion. The evidence will be reviewed only to see if it supports the court’s exercise of discretion, and if the evidence is conflicting, the order will not be reversed if there is evidence to support it. 31 Tex.Jur.2d, par. 224, pages 348, 349; Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589.

By the final Point of Error, the city contends that the operation of the slaughterhouse amounts to a nuisance per se because of yet another ordinance passed by the city in 1930 declaring that a slaughterhouse is a nuisance when located within 600 feet of a private residence unless the city council first determined that such would not disturb or endanger the comfort of those living within the area. By way of a cross action the city sought to enjoin the violation of the ordinance and now contends that the operation of the slaughterhouse was not only a nuisance per se, but that it was also shown to be a nuisance as a matter of fact.

It seems to be universally accepted that a municipal corporation which is empowered to declare what shall be a nuisance is not thereby authorized to declare that to be a nuisance which is not so in fact. Things which may or may not be nuisances when their character in this respect depends upon circumstances cannot be so declared in advance. McQuillian on Municipal Corporations, Vol. 7, Section 24.66, citing cases.

The Supreme Court of this state in the case of City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816, stated the rule as follows :

“ * * * neither the Legislature nor the city council can by a declaration make that a nuisance which is not in fact a nuisance; and the question as to whether or not the building here involved was a nuisance was a justiciable question, determinable alone by the court or jury trying the case. * * ”

The ordinance makes final the determination of the city council on the question as to whether or not the slaughterhouse is a nuisance. This the city council was without authority to do and the ordinance therefore, insofar as it makes final the orders of the city council declaring the same to be a nuisance and ordering its summary abatement, is void.

The operation of a slaughterhouse is a necessary and useful business and when operated in a manner not harmful to the public health and general welfare of those living within the area, would not constitute a nuisance. McQuillian on Municipal Corporations, Vol. 7, Section 24.313.

As to whether the slaughterhouse in question was operated in such a manner as to create a nuisance was a question of fact to be decided by the court. The evidence in this regard was conflicting and therefore by ruling in favor of the appellees, the trial court, by implication, found as a matter of fact, that the operation of the slaughterhouse did not constitute a nuisance. We think this finding has support in the testimony. It supports the court’s discretion and therefore, the order will not be disturbed on appeal. Huston v. Throckmorton County, supra.

The judgment of the trial court is affirmed.


author: CADENA, Justice.

text:
    BUILDERS BARGAIN CENTER, INC., Appellant, v. NATIONAL GYPSUM COMPANY, Appellee.
    No. 14436.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 12, 1966.

      Werner A. Gohmert, Alice, for appellant.
    Lon D. Herbert, Alice, for appellee.
   CADENA, Justice.

The trial court rendered judgment against Builders Bargain Center, Inc., defendant, in a suit upon a sworn account filed by National Gypsum Company. Appellant here contends that the court erred in entering such judgment because the affidavit supporting plaintiff’s petition does not state that the facts sworn to are true “within the knowledge of affiant,” as required by Rule 185, Texas Rules of Civil Procedure.

This is not a default judgment case. Appellant filed an unsworn general denial and was present at the hearing on the merits. No exception was filed in the trial court questioning the sufficiency of the affidavit.

Rule 90, T.R.C.P., provides that, except in the case of a default judgment, every defect, omission or fault in a pleading, whether of form or substance, shall be deemed to have been waived and shall not be ground for reversal, unless complaint is made in the trial court. The objection urged by appellant cannot be made for the first time on appeal. Maxwell v. Winner Gas Stove Co., Tex.Civ.App., 263 S.W. 944, no writ.

The petition was introduced in evidence without objection by appellant. In addition, there was evidence showing that three officers of appellant corporation admitted that the account was owed. The evidence is sufficient to support the judgment.

The judgment of the trial court is affirmed.