author: LATTIMORE, J. HAWKINS, J.

text:
    SMITH v. STATE.
    No. 14227.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Rehearing Denied Nov. 13, 1931.
    Baker & Baker, of Coleman, and Baker & Parish, of Ballinger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

State witness Sam Brown testified that he purchased from appellant on the occasion in question certain intoxicating liquor. Appellant introduced witnesses to prove that his reputation was good. He did not take the stand. One of appellant’s witnesses testified on cross-examination that he was present on the occasion involved, and partook of the beer sold by appellant and that it was intoxicating.

We perceive no error in permitting the state, on cross-examination of one’ of appellant’s witnesses, by whom he sought to establish his good reputation as a law-abiding citizen, to ask him if he knew whether áp-pellant was engaged in the selling of liquor in October, 1930; the charge against appellant being possession of intoxicating liquor in October, 1930.

Witness answered the question in the negative. Nor do we see any error in allowing the state upon cross-examination of appellant’s witness Douglas, who said he was superintendent of a cotton oil company at Ballinger, to elicit from said witness that defendant worked around the mill as a hired hand at ordinary jobs. We fail to see any injury possible from such proof.

Appellant sought to prove by the purchaser of the alleged intoxicating liquor that the beer he purchased from appellant had the same effect as the near beer sold over fountains. Such a hypothetical question as this would shed no legitimate light upon whether the liquor, sold was intoxicating. The fountains referred to in the question might have reference to places where liquor was illegally sold. We do not believe testimony like this admissible to aid the jury in determining whether the liquor sold was intoxicating. The testimony of the appellant’s witness as well as that of the state established that fact.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Bill of exception No. 2 shows that appellant’s witness Bogess had testified to the good reputation of appellant as a law-abiding citizen. On cross-examination he was asked by counsel for the state if he knew whether appellant was selling liquor in October, 1930. It is insisted that the question was erroneous as permitting an inquiry regarding witness’ personal knowledge rather than what he had heard, as bearing on appellant’s reputation, and it is claimed that the holding in our original opinion is in conflict with Goss v. State, 104 Tex. Cr. R. 456, 284 S. W. 578; Prater v. State, 104 Tex. Cr. R. 669, 284 S. W. 965; Moore v. State, 111 Tex. Cr. R. 435, 14 S.W.(2d) 849.

If tlie inquiry on cross-examination of the witness Bogess had been pertinent only to the general reputation of appellant it would be difficult to distinguish the holding in the cases referred to from the question presented by this bill. However, it must be borne in mind that appellant was «charged with possessing intoxicating liquor for the purpose of sale on the 2d day of October, 1930; the indictment having been returned on the 23d day of that month. It was certainly pertinent to the state’s case to prove, if it could, that, during the month of October and prior to' the filing of the indictment, appellant was engaged in selling intoxicating liquor. If the state could prove this by the witness Bogess it would have had a right to do so in the original development of its case. The fact that the witness had on direct examination testified -only to the general reputation of appellant as a law-abiding citizen would not prevent an inquiry on cross-examination as to whether the witness ■ knew if appellant was engaged in selling intoxicating liquor during the time covered by the indictment.

Bill of exception No. 4 reflects that state’s witness Sam Brown had testified that he purchased from appellant a liquor known as home-brew, and that it was intoxicating. On cross-examination appellant sought to have this witness testify that the liquor he purchased from appellant had the same effect as what is called “near beer” that is sold over fountains. Appellant complains that we were in error in sustaining the court’s action in rejecting the proposed testimony. There is no evidence in the record that “near beer” sold over fountains was the same character of liquor as that purchased from appellant; the comparative effect'of the two liquors under such circumstances, we think, would not be legitimate testimony to go to the jury. A similar question was discussed in Nolen v. State, 98 Tex. Cr. R. 399, 266 S. W. 151. In that case the state was permitted to show the intoxicating character of the liquor in question by a comparison with other .liquor. Such proof was held incompetent, and the judgment was reversed. In the present case the defendant was seeking to benefit by the presumed nonintoxicating character of a comparative liquor. Upon reconsideration of the matter we are still of opinion that under the facts before us the action of the court was not erroneous.

In our original opinion we stated that the testimony of appellant’s witness, as well as the state’s, showed the liquor in controversy was intoxicating. The correctness of this statement is challenged in appellant’s motion for rehearing. Appellant placed Texas Brown on the witness stand, evidently for the purpose of showing that he was not a joint purchaser of the liquor, as was alleged in one count of the indictment. Upon cross-examination of Texas Brown, the character of the liquor was inquired into. His testimony regarding it is as follows: “I drank one bottle of it. It was intoxicating. I felt the effects of it. * * What I drank intoxicated me. It made me a little light-headed. It did not make me drunk, but I could feel the effects of it. I told you and Mr. Parrish out there that it made me feel a little feverish; that is what I meant to say to the jury when I said it intoxicated me.” We are still inclined to think the testimony justified the conclusion the correctness of which is questioned.

The instruction to the jury seems not subject to the criticism that as framed it was confusing. There appears no necessity for giving the special charges. The issues had already been covered in the main charge.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HAWKINS, J.

license: Public Domain

text:
    Ex parte BELOISE.
    No. 14918.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    Earle Adams, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus tin, for the State.
   HAWKINS, J.

Relator was charged by indictment with the murder of W. L. Edwards. Through habeas corpus proceedings in the criminal district court of Plarris county he sought bail. From an order of that court remanding him without bail this appeal is taken.

The state relied almost exclusively in making out a case against relator upon the testimony of one Tom Maddi, who gave evidence as to admissions made to him by relator. ' It appears from testimony other than that of Maddi that relator had sought an introduction to Edwards, apparently for the purpose . of enlisting the services of Edwards in disposing of intoxicating liquor for relator. Maddi’s testimony is fragmentary and leaves much to inference. From it, however, the conclusion may be reached that Edwards was in possession of certain letters or papers which other parties desired; that arrangements had been made with relator, Peretta, and Adamo to pay them $5,000 to secure these documents from Edwards. Maddi says, relator had told him “they” or “we” had bought a shotgun, from which it might be inferred that it was contemplated that an effort to secure these papers from Edwards might result in his death. During these statements claimed to have been made by relator to Maddi, relator stated that he liked Edwards, was sorry for him, and did not want to see him killed; also at one time relator told Maddi the whole matter was “off.” On the Sunday night that Edwards was killed, Maddi says relator telephoned him about 10:30 and informed him that something “serious had happened,” but declined to tell him over the telephone what it was; that at relator’s request Maddi went to the house which had been occupied by relator and loaned relator some pliers and a screwdriver to change the license plates on his ear; that relator declined to tell'him at the time why he was making the change; that witness discovered blood in relator’s car and asked what had happened; and that relator said “that crazy Sam (referring to Sam Peret-ta) had bumped the man off” (referring to Edwards). He also told witness that Sam had got in his car and made him drive it about until Edwards’ body could be disposed of. The inference may be drawn, either that Edwards was killed while in relator’s car, or that his body had been placed in the car after the killing; If relator told Maddi anything about the circumstances of the killing, where it occurred, or any of the details, it is not disclosed in Maddi’s testimony. Relator did tell him that he did not know Edwards was to be killed at the time he was. slain. He insisted on Maddi not remaining, as Peretta and Adamo were to come and bring gasoline and they were to take the car out and burn it. The car was found the next morning on a road near Houston, where it had been destroyed by fire; it was identified by the number plates which had been placed on the car the night before.

Up to this point it is questionable whether Maddi’s testimony brings him in such relation to the transaction as to characterize him as an accomplice witness; however, he further says that on the following Monday morning relator told witness he had not received any part of the money as “they could not get it until the bank opened”; either that evening or the next morning, Maddi saw relator with twenty or twenty-one one hundred dollar bills, which he, presumably, had 'received from Peretta and Adamo; he gave $1,400 of this money to Maddi, who was to take care of it for relator. Having received a part of the fruits of the crime into his possession for the benefit of relator brings Maddi in such relation to the crime as to characterize him as an accomplice witness.

Relator presents two propositions upon which he relies for a reversal of the order of the court remanding him without bail: First, that, assuming Maddi not to have been an accomplice, his recital of the admissions of relator to him was so fragmentary and unsatisfactory as to fall short of making out that character of case contemplated by the law as nonbailable; second, that Maddi’s testimony having characterized him as an accomplice witness, even conceding that it made out a complete case against relator, was not corroborated in such a way as to render the offense non-bailable.

In section 224, Branch’s Ann. Tex. P. C., the author very clearly states the rule to be: “The rule is ‘all prisoners shall be bailable.’ The exception is ‘when the proof is evident’ that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment, this conclusion to be reached by the well-guarded and dispassionate judgment of the court or judge passing upon the question.” This rule Was deduced from the opinions of this court construing section 11, art. 1, Bill of Rights, Constitution of Texas, which provides that: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident. * * * ” See authorities collated under said section 224. Maddi’s testimony as to the admissions of relator throws no light upon the place or manner of the killing, or relator’s part therein, leaving it gravely doubtful whether bail should have been refused upon the general phase of the case; but there can be no question under the record before us as to the soundness of relator’s second proposition that the evidence corroborating Maddi’s is so incomplete that bail should not have been denied under the authority of Ex parte Bocklin, 72 S. W. 585. In that case it was controverted whether the corroborating evidence tended to connect accused with the crime, and that being a controverted question, tie court held tie' proof not to be “evident” in contemplation of tie language in tie bill of rights.

If tie testimony of Maddi made out a complete case against relator, ie being an accomplice witness, the law steps in and prevents a conviction (article 718, O. C. P.) unless his testimony be corroborated by other evidence tending to connect relator with tie offense charged. In other words, proof of tie crime and relator’s guilt thereof would not be “evident” in contemplation of relator’s right to bail unless the corroboration of the accomplice witness measured up to the requirements of the statute. We are constrained to hold that it does not do so under the record before us.

The judgment of the trial court denying bail is reversed, and bail is granted in the sum of $10,000.


author: LATTIMORE, J.

text:
    BARNES et al. v. STATE.
    No. 14410.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    Bert Edward Derden, of Wichita Falls, for appellants. •
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment 'against each defendant, ' one year in the penitentiary.

Appellants in a car together were observed by two officers. Upon discovery of the fact that they were seen, appellants appear to have whirled their car as though to try to move off, but they seem to have run upon what is called a high center, and could not go any further. The officers testified that as they approached the car they observed one of the appellants pick up a hammer and start to break a five-gallon jug of whisky sitting in the car, the top of which could be seen by the officers. The officers stopped the party before he broke the jug of whisky. Two half-gallon jars of whisky were lying up back of the seat of the car, in plain sight. The evidence seems overwhelmingly sufficient.

There are five bills of exception presenting complaints for one reason and another of the evidence' of the officers as to what they found in said car. There appears to have been no exception taken to the charge of the court, and special charge No. 1 which was asked exhibits thereon nothing from which this court could be informed as to when it was presented and requested. The refusal of this charge is complained of by no separate bill of exception..

Bill of exception No. 2 complains of the reception of the evidence of the officers on the ground that they had no search warrant. We are of opinion that this record abounds in evidence sufficient to show probable cause for the search by the officers, in which case it is not necessary for them to have a search warrant. Hawthorne v. State, 110 Tex. Cr. R. 646, 10 S.W.(2d) 724; Brasselton v. State, 112 Tex. Cr. R. 615, 18 S.W.(2d) 168.

Appellants sought to have the jury told by their special instruction No. 2 that the burden was on the state to convince the jury beyond a reasonable doubt that the liquor, if any, so transported by appellants was not transported for a legal purpose. We do not think it incumbent upon the state to make any such proof. Bills of exception Nos. 3, 4, and 5 present substantially the same complaint as appears in bill No. 2, and for the reason above stated we think same present no error. Each of these bills is so qualified by the .trial court' without exception as to show that the officers had abundant evidence of the presence of intoxicating liquor in the car before they made any search thereof and obtained the testimony which was given by them.

Finding no error -in the record, the judgment will be affirmed.


text:
    MILLER v. STATE.
    No. 14914.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for misdemeanor, swindling; punishment being a fine of one dollar, and confinement in the county jail for one day.

The record is before this court without statement of facts or bills of exception. In such condition, nothing is presented for review.

The judgment is affirmed.


author: CALHOUN, J.

text:
    Jim KING v. STATE.
    No. 14772.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary 'for two years.

The record is before us without a statement of facts or bills of exception. We note that the verdict of the jury finding the appellant guilty assessed his punishment at two years in the penitentiary, while the sentence fixed his punishment at confinement in the penitentiary for a straight term of two years. The sentence will therefore be reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than two years, and, as so reformed, no question being presented for review, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by- the judges of the Court of Criminal Appeals, and approved by the court.


author: CHRISTIAN, J.

text:
    KING v. STATE.
    No. 14773.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of .Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed. _ •

' PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.


author: MORROW, P. J. DATTIMORE, J.

text:
    MAYNOR v. STATE.
    No. 14571.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Rehearing Denied Nov. 13, 1931.
    Wallace Hughston, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of two years.

The court adjourned on the 7th day of March, 1931. The motion for new trial was overruled on the 21st day of February, 1931. Ninety days were allowed within which to prepare and file the statement of facts and bills of exception. The statement of facts was filed in the trial court on May 23, 1931, which was more than ninety days after notice of appeal was given. Under the terms of the Code of Criminal Procedure, art. 760, this court is precluded from giving consideration to the' statement of facts.

The record is void ofbills of exceptions, and no legal questions are presented which, in the absence of the statement of facts, can be considered.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

In his motion appellant complains of the indictment. Without setting same out, it appears to be in all things in conformity with law.

The renewed complaint of the lack of sufficient evidence to support the verdict cannot be considered in view of the fact that there is no statement of facts filed in time for our consideration. Appellant says the case should be reversed for fundamental error. We perceive none. The statement of facts was filed one day too late, as appears in our original opinion. All of the decisions hold that in such case we have no authority to consider such statement.

The motion for rehearing will be overruled.


author: CALHOUN, J. CALHOUN, J.

text:
    Ex parte POSTON.
    No. 14906.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Emmett Shelton and Wright Stubbs, both of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

This is an appeal from an order of the district judge of the 126th district court refusing appellant bail and remanding him to the custody of the sheriff. ,

The state’s attorney before this court calls our attention to' the fact that the transcript herein shows to have been delivered by the clerk of the trial court to appellant’s counsel and not to have been sent by said clerk in the manner prescribed by law to the clerk of this court.

This court cannot consider a transcript under such showing. Article 843, Code of Criminal Procedure; Ex parte Ybarra (Tex. Cr. App.) 36 S.W.(2d) 180; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Lowery v. State, 92 Tex. Cr. R. 311, 244 S. W. 147.

The appeal will be dismissed with permission granted to the district clerk to withdraw said transcript and to prepare and forward a new and complete transcript of said case to this court in the mode and manner prescribed by law.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On the Merits.

CALHOUN, J.

On a former day of this term, this appeal was dismissed for the failure to file a transcript in the mode and manner provided by statutes. Permission was granted to the district clerk of Travis county to withdraw same and prepare and file a new and complete transcript in compliance with the statutes. This having been done, this appeal will now be considered upon its merits.

This is an appeal from the order of the district judge of the 126th district court of Travis county denying bail to appellant. The appellant was indicted for the unlawful killing of one Reuben Hollingsworth. On the hearing of appellant’s application for bail, it was undisputed by the defense that appellant shot and killed the said Hollingsworth. Thd only evidence offered by the state as to how the killing occurred was the testimony of J. C. Hollingsworth, the father of the deceased. He testified that he and his son lived close to the appellant, that they had bought some land from him and had been accustomed to getting water from appellant’s well, and that appellant had agreed, up to the time of the homicide, to deceased and witness getting water from the appellant’s well. On the day of the killing, the witness Hollingsworth testified that he was cutting wood when he heard the gun fire, and that he walked over to Frank Poston’s place and saw his boy lying on the inside of the gate (which later testimony developed to be upon appellant’s property). lie further testified that he heard some kind of a racket, and that, when he got up to where his son was, or approximately thereto, the appellant ordered him to get back across the road. The witness stated that he said to the appellant, “You have killed my boy,” and the appellant replied, “Yes, you have come over here to kill me,” and ordered him ' not to toueh the deceased. He further testified that it was about dark and that the killing occurred on June 4, 1931; that he then went on down to a neighbor’s house to get help.

So far as the record discloses, the only eyewitness to the actual killing was the wife and son of the appellant. They testified that the appellant acted in self-defense. We deem it unnecessary to enter into a full discussion of their evidence upon a proceeding such as this.- It is apparent, however, from the evidence adduced upon the hearing, that, upon the trial hereof, the court will be called upon to submit the issue of self-defense. The burden is on the state to show that accused is not entitled to bail as a matter of right under the Constitution of Texas, art. 1, § 11. See Ex parte Powell, 107 Tex. Cr. R. 648, 298 S. W. 575; Ex parte Tindall, 111 Tex. Cr. R. 444, 15 S.W.(2d) 24.

There was no proof offered as to the ability of appellant to make bond. The evidence before us in this record does not make evident the fact that upon a trial a jury considering such testimony would inflict the death penalty.

For that reason, the judgment denying appellant bail is reversed, and bail granted in the sum of $7,500.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: FLY, C. J.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. LANGSTON.
    No. 8653.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1931.
    Rehearing Denied Nov. 4, 1931.
    G. Woodson Morris, of San Antonio, for appellant.
    Charles J.’ Lieek and Grover C. Morris, both of San Antonio, for appellee.
   FLY, C. J.

This is a suit instituted by appellee for $268 penalty and attorney’s fees, on a policy on the life of Judge W. Langston, her deceased husband. The verdict and judgment was for $268 and $50 attorney’s fees.

The defense presented was that deceased had made false answers and representations as to his health at the time and prior to the issuance of the policy. In response to special issues, the jury found that deceased was iH sound health on the date the policy was issued, that the answers as to his health were not material to the risk, that*the answer of deceased as to whether he had ever had certain named diseases was not untrue. The jury answered that none of the representations made by deceased in his application for insurance .were untrue, and that such representations did hot induce the issuance of the policy.

Not one of the findings of the jury was sustained by the'facts in the case, but, on the other hand, every one of them was-disproved by the evidence. The man had undoubtedly given untrue answers ..to the questions to which he responded in his application for insurance. He had been a sick map .long before he applied for the policy, and had also received injuries in,an accident, before the application was made for insurance, and, however much we may be adverse to reversing a judgment on the facts, we cannot in justice and reason permit the verdict and judgment to stand in this case.

Because the answers of the jury are not sustained by, but are in contravention of, the facts, the judgment will be reversed, and judgment here rendered that appellee take nothing by her suit, and pay all costs.

On Motion for Rehearing.

This court has not invaded the province of the jury in holding that there was no testimony to sustain the verdict rendered in the lower court. The law makes a jury the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, but it has never provided that the verdict of a jury, without facts to sustain it, cannot be set aside by a court.

In this case, the record reveals that not only was there no testimony to sustain'the verdict, but that there is no probability oi perhaps possibility of obtaining testimony that would sustain such a verdict. ■ The facts are all to the contrary of the verdict rendered. When there are no facts in a case it then becomes the province of a court to pass upon the action of the jury as a matter of law. The statute empowers the courts of civil appeals with authority to pass upon facts, but the Supreme Court has for many years held that it has the authority to review the-findings of fact of appellate courts, when there is no testimony to sustain the findings. This is a precedent for this court reversing and rendering judgment in this case. There was no testimony; there is no probability that such testimony .can be justly and truthfully obtained. We therefóre overrule the motion for rehearing. ' ■ ■


author: BLAIR, J.

text:
    WHEELER v. AHRENDT MOTOR CO.
    No. 7662.
    Court of Civil Appeals of Texas. Austin.
    Sept. 30, 1931.
    Rehearing Denied Oct. 14, 1931.
    Warren P. Castle, of Houston, for appellant.
    E. A. Camp, of Rockdale, for appellee.
   BLAIR, J.

Appellee sued appellant on open account for labor and material furnished in drilling an oil well in Lee county. Appellant filed his plea of privilege to be sued in Harris county, his alleged domicile. Appellee filed a controverting affidavit that appellant resided in Lee county, where the suit was filed. On the hearing of the plea of privilege, the trial court found that appellant resided in Lee county at the time the suit was filed, and overruled the plea of privilege; hence this appeal.

The judgment of the trial court must be affirmed because no assignments of error were filed in the trial court, nor do any appear in the transcript, and there is no fundamental error apparent of record. This appeal arose and the transcript was filed in this court before the enactment of the recent statute dispensing with former statutory provisions and rules requiring assignments to be filed with the' clerk of the trial court, and to appear in the transcript; and the case must be affirmed upon the following authorities: Houston Lighting & Power Co. v. Jenkins (Tex. Civ. App.) 5 S.W.(2d) 1930; article 1844, R. S. 1925; Hogg v. Sinclair Oil & Gas Co. (Tex. Civ. App.) 38 S.W.(2d) 886; Ford & Damon v. Flewellen (Tex. Com. App.) 276 S. W. 903; Egan v. Lockney Farmer’s Co-op. Society (Tex. Com. App.) 284 S. W. 937; Moore v. Krenex (Tex. Com. App.) 39 S.W.(2d) 828; Natkin Engineering Co. v. Aetna Cas. & Surety Co. (Tex. Com. App.) 37 S.W.(2d) 740; Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844; Duckworth v. Dallas County Levee Dist. (Tex. Civ. App.) 11 S.W.(2d) 263; Mundell & Wilson v. Rounds (Tex. Civ. App.) 22 S.W.(2d) 149; Forrest v. Moore (Tex. Civ. App.) 22 S.W.(2d) 1104.

The above holding disposes of the appeal; but in passing it may be observed that the assignments of error set out in appellant’s brief only question the sufficiency 'of the evidence to sustain the finding of the trial court that appellant was a resident of Lee county at the time the suit was filed, and therefore present only questions of fact and not fundamental error apparent of record. The statement of facts shows a conflict in the evidence, and therefore sustains the finding of the trial court that appellant was a resident of Lee county at the time this suit was filed.

The judgment of the trial court is affirmed.

Affirmed.


text:
    LEWIS v. E. H. PERRY & CO., Inc.
    No. 7641.
    Court of Civil Appeals of Texas. Austin.
    Oct. 21, 1931.

      Conger & Conger, of San Antonio, for appellant.
    Hart, Patterson & Hart and Woodward & Gay, all of Austin, for appellee.
   BLAIR, J.

Appellant sued appellee, E. H. Perry & Co., Inc., for a balance of $1,875.99 on the purchase price of 50 bales of cotton, alleging that appellee purchased the cotton upon oral contract of its agent, Sidney Smith. Appellee denied Smith’s agency, and alleged that it had no transaction whatever with appellant, but purchased the cotton from Smith and paid him the entire purchase price.

The principal issue on the trial to the court without a jury was whether Sidney Smith acted as agent for appellee in the purchase of the cotton, and judgment was for appellee. Appellant made no request for findings of fact and conclusions of law, and, since the pleadings and evidence adduced would support the finding and conclusion that Sidney Smith did not act as agent for appellee in the transaction, the judgment rendered must be affirmed.

Briefly, the evidence showed that ap-pellee was a cotton merchant or exporter at Austin, engaged in buying and selling cotton. Sidney Smith was an f. o. b. man; that is, an independent cotton buyer at Fredericks-burg, engaged in buying cotton from the public and selling to cotton merchants who would pay the best price, and these facts were well known to appellant. On December 18, 1926, appellant, a resident of Fredericks-burg, and engaged in buying and selling cotton, sold Sidney Smith 50 bales of cotton marked “P I B.” On the same day Smith sold these 50 bales of cotton to appellee on call at 135 off May New York, basis middling, which without going into details was a completed cotton contract, the price to be fixed by the New York market as of date of call. Smith was paid on the date of the sale the larger part of the purchase price, and the balance was to be paid on date of call. On December 31, 1926, Smith requested appellee to fix the price, which was done, and the total price for the 50 bales on that date was $2,-808.93, against which Smith had drawn or been paid $2,646.71, and appellee paid Smith the balance of $162.22, and closed the transaction on its books. Appellee had no transaction whatever with appellant, but dealt entirely with Smith as an f. o. b. man, and none of the checks or drafts issued by ap-pellee to Smith in payment of the 50 bales of ctftton marked “P I B” were shown to have gone to appellant. All of appellee’s witnesses testified that Smith was never the agent of appellee, but was an independent cotton buyer with whom appellee dealt as it did with other f. o. b. men; and appellee’s books showed numerous transactions where it had always dealt with Smith as it dealt with any other f. o. b. man. This evidence would sustain a finding and conclusion that Smith did not act as the agent of appellee in the transaction.

The contention of appellant that appel-lee acquired the possession of the cotton.as a cotton factor or commission merchant, and not the title, and must account to its principal for the proceeds of the sale, is without merit. Appellant admitted that he sold Smith the cotton on terms of call for May, 1927, with option to transfer to call for October, 1927, and that Smith paid with his personal check all the purchase price except about $10 per bale. Appellant shipped the cotton to appellee under this contract with Smith, and in April, 1927, he notified Smith to notify appellee that he wished to transfer to call for October, 1927; and that on August 2, 1927, he called the cotton, and by this suit demanded the balance of the purchase price as fixed of that date under the terms of the contract. Thus appellant has placed his own interpretation upon the contract as being one for the sale of the cotton; and, while the price finally to be paid for the cotton was to be determined in the future, still the basis for determining the price was agreed upon at the time the sale was made, and the title to the cotton passed to Smith and through him to appellee. The record also discloses that the case was not tried on the theory that ap-pellee had notice of appellant’s claim of any interest in the cotton; nor do the pleadings and evidence adduced, support any such theory of recovery. But in any event appellant’s right to recover depended upon his establishing that Smith acted as agent for appellee in the transaction, which, as above pointed out, he failed to do.

The assignments of error complaining of the admission of certain testimony are not sustained. We think the testimony was admissible ; but, whether admissible or not, the assignments disclose no error, because there was no finding of fact by the trial court; and in-the absence of which it will be presumed that the trial court did not consider any illegal or improperly admitted evidence, if the record furnishes other evidence legally sufficient to support the judgment upon any theory of right pleaded. This the record does as above pointed out.

The judgment will be affirmed.

Affirmed.


author: WAEKER. J.

text:
    AMERICAN NAT. INS. CO. v. PORTER.
    No. 2125.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 30, 1931.
    Rehearing Denied Nov. 4, 1931.
    Conley, Renfro & Keen, of Beaumont, for plaintiff in error.
    D. E. O’Piel and W. R. Blain, both of Beaumont, for defendant in error.
   WAEKER. J.

This appeal was by writ of error, but the parties will be referred to as appellant and appellee. This suit was filed in county court at law of Jefferson county, by appellee against appellant, upon a policy issued by appellant to ¡Lena Adams on the 26th day of March, 1927, for the principal sum of $230, but with a provision that liability should be limited to $115 if the insured died within six months from date of the issuance of the policy. The prayer was also for interest, 12 per cent, damages, and $200 attorneys’ fees. The insured died on the 4th day of May, 1928.

Appellant answered by demurrers, general denial, and by special pleas, as follows: ,(a) The policy was a nonmedical policy, and as a condition of its issuance Bena Adams.warranted that she was in good health, when in fact she was in bad health, (b) After the death of Lena Adams, with knowledge that the policy was unenforceable because of the facts just stated, appellee canceled and surrendered the policy and the receipt book to appellant, whereupon appellant paid appellee the full amount of all premiums paid by Lena Adams, and she executed and delivered to appellant-a written release against the policy.

By supplemental petition, appellee answered these special pleas as follows: (a) Lena Adams was in good health when the policy was delivered, (b) Appellee was induced to execute the release by the fraud of appellant’s agents, in that they presented to her for her signature a release against the policy, promising to pay all the amount due thereon, and in the belief that she was to be paid in full for-the policy she executed and delivered the release to appellant’s agents, but, after she had thus executed and delivered the same to appellant’s agents, they paid her only $2.25. The trial was to a jury, who found all issues in ap-pellee’s favor, and upon this verdict judgment was entered for appellee.

Opinion.

Issue No. 2 was as follows: “Do you find from the evidence that the agents and representatives of the defendant Company procured the plaintiff, Victoria Porter to sign the said release and then tendered her the $2.25, and explained the same to her? Answer ‘yes’ or ‘no’ as you find the facts to be.” This question the jury answered “Yes.”

Issue No. 3 was as follows: “If you have answered the preceding interrogatory by saying ‘yes’ then do you find from the evidence or do you find it as a fact, or do you believe from the evidence that had the said Victoria Porter known of the nature and contents of said release that she would have signed the same, knowing that she was releasing her entire claim on said policy? Answer yes or no as you find the facts to be.” ’ To this question the jury answered “No.”

Appellant excepted to this question upon the ground that it was multifarious, in that it submitted to the jury the following issues:

“(a) Did the said Victoria Porter know of the nature and contents of the release?
“(b) Would she have signed it if she had known the same?
“(c) Did she know that she was releasing her entire claim under said policy?
“(d) If she had known she was releasing her entire claim, would she have signed the release.”

We think this exception well taken. Interstate Cas. Co. v. Hogan (Tex. Civ. App.) 232 S. W. 354.

No error was committed in submitting the issues of fraud against appellant’s agents in securing the release nor in refusing the issues requested by appellant on the issue of fraud.

For the error in the court’s charge, the judgment of the lower court is reversed, and the cause remanded for a new trial.

Reversed and remanded.


author: O’QUINN, J.

text:
    WHITE v. PEROT et al.
    No. 2134.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1931.
    Rehearing Denied Nov. 4, 1931.
    Crook, Defier, Cunningham & Murphy, of Beaumont, for appellant.
    Trippett, Richey & Sheehy, of Waco, for appellees.
   O’QUINN, J.

This suit was instituted in Jefferson county, Tex., by the appellant, D. White, against O. B. Pérot and R. Q. Travers, who were alleged to reside in Waco, McLennan county, Tex., and the Western National Insurance Company, a corporation having its domicile in Fort Worth, Tarrant county, Tex. The plaintiff alleged Perot and Travers were operating an insurance business in the state of Texas under the name of Texas National Life & Accident Insurance Company as a partnership, and joint-stock association, with its office at Waco, Tex., and that the defendants Perot and Travers were the sole owners thereof. The plaintiff further alleged that in April, 1928, the defendants Perot and Travers had made a written contract with him, plaintiff, which contract was one between the defendants acting as an insurance company operating under the name of Texas National Life & Accident Insurance Company, and the plaintiff, D. White, as agent and manager of the ' said defendants, which agreement and contract covered several counties, and included the cities of Orange, Beaumont, Port Arthur, and all territory within a radius of fifty miles from Beaumont, Tex. The suit was to recover damages alleged to have resulted from a breach of said contract by the defendants.

The' defendants, Perot and Travers, filed their pléa of privilege asking that the venue of the suit be transferred to the county of their residence, to wit, McLennan county, Tex. The plaintiff filed a controverting affidavit to said plea of privilege, and invoked section 5 of article 1995, R. S. 1925, in that the defendants in the said contract with plaintiff had obligated themselves to pay plaintiff his commission for his services rendered under said contract in the city of Beaumont, Jefferson county, Tex. A copy of the contract in question was attached to the controverting affidavit, as it was also to the petition of plaintiff.

On a hearing, the court sustained the plea of privilege, and ordered the cause transferred to the district court of McLennan county, Tex. From this order and judgment plaintiff has appealed.

The written contract in question was one between the defendants and plaintiff wherein the defendant made and appointed plaintiff their manager in the conduct of their insurance business in the territory set out, which included the city of Beaumont in Jefferson county, Tex. Said contract, among other things, in stipulating the duties of plaintiff as manager of defendants, provided:

“Manager’s Agreement
“1. In consideration of my appointment as Manager for the Texas National Life & Accident Insurance Company, I hereby agree as follows:
“2. To solicit insurance and to collect premiums regularly each week and to properly supervise such soliciting and collecting by agents who may be appointed under my supervision. To obey the orders and. carry out the instructions of the company and to use my best efforts at all times to promote its interest and further its success.
“3. To keep true accounts of the business in such books as may be furnished me by the Company, and to remit to the Home Office promptly every week, at the time required, and on the forms furnished by the Company, a true and correct account of all money received by me, with the cash received by me and all agents who may be working under my supervision, all of whose accounts and collections I am to be responsible to the Company for, less authorized deductions and to pay all charges incident to sending moneys and parcels, postage, license or bond fees, and all. other charges necessary to carry on my agency.”

In said contract the defendants agreed to pay plaintiff for his services as follows:

“And the Company Agrees as Follows
“In consideration of such services being faithfully performed and this agreement being faithfully fulfilled, and kept by- said Manager, to pay, in commissions only, deductable from weekly premium collections, in accordance with the following scale: [Then follows the schedule of commissions.]”

The only question in the case is, Did the promise' to pay plaintiff his commission by authorizing him, in making weekly reports of the premiums collected and in remitting said collections, to deduct therefrom his commission at Beaumont, constitute a contract on the part of defendants to perform an obligation in Jefferson county, Tex.- — in other words, to pay plaintiff his commission at Beaumont? If so, the judgment is erroneous, and should be reversed, if not so, then the judgment should be affirmed.

The defendants promised to pay plaintiff a commission for his services. The contract made it the duty of plaintiff as manager of defendants to “keep true accounts of the business in such books as may be furnished me by the company, and to remit the Home Office promptly every week, at the time required, and on the .forms furnished by the Company, a true and correct account of all money received by me, with the cash received by me and all agents who may be working under my supervision, all of whose accounts and collections I am to be responsible to the company for, less authorized deductions,” and obligated the defendants “in consideration of such services being faithfully performed and this agreement being faithfully fulfilled and kept by said Manager, to pay, in commissions only, deductable from weekly premium collections in accordance with the following scale.”

We think the contract clearly obligated the defendants to pay plaintiff his commission at Beaumont in Jefferson county, Tex. In requiring him to remit weekly collections of premiums, they authorized him to deduct out of whatever sum he may have collected his pay — his commission. It is their promise to pay him his commission before he remits his collections. He has the money in his possession in Jefferson county; he is to make his weekly reports and remittances from Beaumont in Jefferson county; and in doing so he, by the authority of and per his contract with defendants, retains his promised pay, the contract so providing. This is the same as if defendants had been present and had then and there handed him his commission.

Furthermore, while it is true plaintiff himself acts in retaining his commission, still he is doing for defendants what they had contracted themselves to do, and is acting for them in the very terms of their contract, paying him his commission. The contract provides for the payment of commission to plaintiff, and also specifies the manner of payment, the same to be done in Jefferson county, and no other place is specified. Defendants intended this to be the payment of the commission promised in the contract. Gambrell v. Tatum (Tex. Civ. App.) 228 S. W. 287, 290; Cecil v. Fox (Tex. Civ. App.) 208 S. W. 954. ( Moreover, the contract obligated defendants to pay plaintiff a commission, and, if it can be said that the contract does not clearly stipulate where the payment is to be made, yet we think the performance of such obligation in Jefferson county is a necessary implication from the context of the instrument, and should therefore be held to answer the demand of the statute. Metropolitan Loan Co. v. Reeves (Tex. Civ. App.) 236 S. W. 762; Cecil v. Fox (Tex. Civ. App.) 208 S. W. 954; Bell County Brick Co. v. Cox, 33 Tex. Civ. App. 292, 76 S. W. 607; Gottlieb v. Dismukes (Tex. Civ. App.) 230 S. W. 792.

As sustaining the contention of defendants and the judgment, they particularly call our attention to:

(a) Cerf v. Mings (Tex. Civ. App.) 15 S.W. (2d) 91, which appellees say is squarely in point in the instant case. That was a suit in district court of Coryell county, Tex., by Mings against Cerf and the Pacific Mutual Life Insurance Company of California, a foreign corporation, to recover commissions on Insurance written by Mings. Cerf filed bis plea of privilege to be sued in Tarrant county, Tex., tbe county of bis residence. Mings contested said plea on tbe ground (a) that tbe suit was based upon a written contract performable in Coryell county where tbe suit was brought, and (b) that tbe Pacific Mutual Life Insurance Company was properly sued in Coryell county: The- court overruled tbe plea. Tbe record showed that Cerf was tbe general agent of said insurance company, and that be resided at Fort Worth, Tarrant county; that Cerf entered into a written contract with Mings whereby Mings was employed by Cerf to solicit applications for insurance in said insurance company, forward same to Cerf, and to act generally as local agent in Coryell county in promoting tbe interest of said insurance company. Tbe contract provided: “Sec. 3. Subject to the provisions of this agreement, tbe General Agent hereby agrees to pay or allow tbe agent tbe following commissions on first year’s premiums reported and paid in cash to tbe General Agent on business done by or through tbe agent, the same to be in full of all claims on account of services and expenses.”

Then follows tbe rate of commission on tbe premiums to be paid on tbe different classes of policies. Tbe contract also provides: “Tbe Agent shall have renewals as follows.”

Then follows, with certain exceptions, tbe rate of commissions to be paid on renewal premiums. Tbe contract further provides: “See. 10. Tbe Agent shall not have under this appointment any claim whatever for commissions or other services against Pacific Mutual Life Insurance Company of California.”

It will be noted that said contract contained no provisions as to bow, when, or where the commissions were to be paid, nor could same be - implied from the context of tbe instrument. Not so in tbe instant case. Tbe contract here plainly stated bow, when, and where commissions were to be paid. They were to be deducted out of and from the premiums collected at Beaumont, Jefferson county, before remittance, and by the person defendants authorized to make said deductions. It is thus seen that tbe Cerf v. Mings Case has no application to tbe facts of the instant case.

(b) Wrenn v. Brooks (Tex. Civ. App.) 257 S. W. 299. In this case Brooks sued Wren in tbe district court of McLennan county, Tex., for salary be claimed Wren and one Kelly owed him, alleging that Wren resided in Falls county, Tex., and that Kelly resides in McLennan county, Tex. Wren filed a plea of privilege, stating that be resided in Falls county, and that Kelly did not reside in McLennan county at the time suit was filed, mor at any time since, but be resided at Ada,

Okl. Brooks filed a controverting affidavit, contending that venue lay in McLennan county because (a) at tbe time of tbe filing of tbe suit Kelly did reside in said McLennan county, and (b) because be (Brooks) was suing upon a written contract in which tbe defendants bad promised to perform in Mc-Lennan county. Tbe court overruled tbe plea. Tbe statement of facts showed that Wren and Kelly constituted a partnership to conduct a general domestic and export cotton business, with their bead office at Waco, McLennan county. Their written contract employed Brooks to work for them at their office in Waco for one year at a salary of $5,000. Tbe contract did not state where the salary was to be paid. So this case, under tbe facts, does not apply to tbe instant case, for here, as beforesaid tbe contract does provide bow, when, and where tbe commission is to be paid. Tbe instant contract plainly says that they will pay plaintiff a commission, and that be is to deduct same from bis collection of premiums, be thus doing for defendants what they bad contracted to do and in tbe manner they bad in writing authorized him to do — bis act being their act, for one who acts through another acts through himself.

Tbe judgment is reversed and tbe cause remanded to tbe trial court for a trial upon tbe merits of tbe case.

Reversed and remanded.


author: HAUL, C. J.

text:
    COUSINS v. COUSINS et al.
    No. 3654.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1931.
    Rehearing Denied Nov. 4,1931.

      Stone & Guleke, of Amarillo, for appellant.
    Cole & Porter, of Clarendon, for appellees.
   HAUL, C. J.

This is an action brought by Mrs. Mettie E. Cousins, the surviving wife of S. A. Cousins, and their six children, to have the will of S. A. Cousins, deceased, construed, and to recover from Aubrey S. Cousins any interest claimed by him in certain real property described in plaintiffs’ petition.

S. A. Cousins was married twice. Oscar Cousins, now deceased, was the child of his first marriage, and the appellant Aubyey Cousins is the only child of Oscar Cousins,

The statement of facts is as follows:

“That the will of S. A. Cousins, deceased, was duly and legally, probated in the County Court of Gray County, Texas, and as is described in paragraph two hereof was plead by plaintiffs and by them introduced in evidence upon the trial of this cause.
“That the following is a true and correct copy of the will of S. A.'Cousins, deceased:
“ ‘The State of Texas, County of Gray.
“‘Know all men by these presents: -That we, S. A. Cousins and wife, Mettie E. Cousins, of the County of Gray and State of Texas, being in good health and of sound and disposing mind and memory, do make and pub-lish this, our joint and mutual will and testament, hereby revoking all wills made by us at any time heretofore.
“ ‘First: We direct that all of our just debts shall be paid and satisfied. The remainder of our estate, both real and personal, shall descend and be invested in the surviving member of our marriage for the remainder of his lifetime, with full power to manage and control said estate.
“ ‘Second: -Should we both die at one time, our estáte is to be divided equally among the following heirs: Nona Cousins, Charles Cousins, Janie Cousins Lowry, Mettie Jewell Cousins, S. A. Cousins, Jr., and Dorothy Cousins Beck. The property may be sold and the proceeds divided, or the property itself may be divided if this meets the approval of the majority of the heirs. Any heir being indebted to the estate, said indebtedness shall be satisfied from his part of the estate.
“ ‘Third: No provision is made in this will for the heirs of Oscar Cousins, deceased, a son by a former marriage, whose mother is now dead and said son having received his portion of the estate at the time of his mother’s death, the same being stated in the deed recorded in Hamilton, Hamilton Connty, Texas.
‘“Fourth: In ease we both die before the youngest child is of age, we nominate and appoint Nona Cousins and S. A. Cousins, Jr., executors of our estate, and we direct that no bond be required of them.
“ ‘In witness whereof we have hereto set our hands this the 15th day of February, A. D., 1930.
“ ‘S. A. Cousins, “‘Mettie E. Cousins.’
“ ‘Witnesses:
“ ‘J. R. Langford,
“ ‘W. H. Mathis.’
“That Mettie E. Cousins is the surviving wife of S. A. Cousins, deceased, and Nona Cousins, Charles Cousins, Janie Cousins Lowry, wife of Chas. M. Lowry, Mettie Jewell Cousins, S. A. Cousins, Jr., and Dorothy Cousins Beck, wife of Ernest Beck, are the surviving children of S. A. Cousins, deceased ; and Aubrey S. Cousins is the surviving child of Oscar Cousins, a deceased son of S. A. Cousins, deceased, by a former marriage, and that there are no other living descendants of S. A. Cousins, deceased.”

Neither party introduced any other or further evidence upon the trial.

Plaintiffs filed the suit asking for a construction of the will, and prayed for a recovery from Aubrey S. Cousins of any interest he was claiming in certain real property described in the petition.

Aubrey Cousins filed a general demurrer,, general denial, numerous special exceptions, and a cross-action in trespass to try title to recover an undivided one-seventh interest in the property described in the plaintiffs’ petition.

The trial court rendered a judgment construing the will against the contention of Aubrey S. Cousins and holding that each of the children of S. A. Cousins, deceased, by his' second wife, was entitled to a one-sixth interest in the property, involved, after the life estate devised to Mettie E. Cousins had determined, and that Aubrey S. Cousins was not entitled to any part of the estate of S. A. Cousins, deceased.

It will be noted that the third clause of the will is: “No provision is made in this will ■for the heirs of Oscar Cousins, deceased, a son by a former marriage, whose mother is now dead and said son having received his portion of the estate at the time of his mother’s death, the same being stated in the deed recorded in Hamilton, Hamilton County, Texas.”

As shown by the agreed statement, Aubrey Cousins is the only living heir of Oscar Cousins, deceased, and this clause of the will clearly excludes him from any participation under the will.

As said by Connor, Justice, in Citizens’ Bank & Trust Co. v. Dustowe, 188 N. C. 777, 125 S. E. 546, 548: “The validity of the will is not in issue. It has been duly probated and recorded. It has not been vacated on appeal, nor declared void by a competent tribunal. * * * The record and probate is therefore conclusive as to the validity of the will. * * * The entire estate, real and personal, is devised and bequeathed, and there is no residuary clause in the will.”

And the holding is that, where a party is expressly excluded by the terms of the will, he is neither a necessary nor a proper party to an action to construe the will. To the same effect is the holding in Gay v. City of Ft. Worth (Tex. Civ. App.) 4 S.W.(2d) 268; 40 Cyc. 1846.

We are strongly inclined to the opinion that the judgment should be reversed and the case dismissed, in accordance with that rule, and, but for the fact that Aubrey Cousins is asking affirmative relief, we would adopt that course. , ,,

The first clause of the will provides that, after the payment of debts, “the remainder of our estate, both real and personal, shall descend and be invested in the surviving member of our marriage for the remainder of his lifetime, with full power .to manage and control said estate.”

This clearly invests the surviving wife with a life estate in all of the property, both separate and community, owned by her husband at the time of his death, and under the provisions of the will even her own children have only a contingent interest so long as she lives, and certainly Aubrey Cousins, the grandson of a former marriage, who is expressly excluded by the third clause of the will, has no present interest.

The primary purpose of the suit is to have the court construe the second clause of the will, which provides: “Should we both die at one time, our estate is to be divided equally among the following heirs,” naming the children of the second marriage.

“A court of equity will not take jurisdiction of a suit for the construction of a will unless it can afford immediate relief. It will not undertake, where there is no matter in dispute, to declare future rights nor will it ever undertake to decide upon and determine contingencies which may never arise unless such determination is necessary for the decision of some immediate relief to be granted and which it can enforce by a decree. Such a suit may sometimes be entertained, however, where it is brought by an executor or a testamentary trustee, although a like suit by other parties would be dismissed as premature. Inasmuch as a premature adjudication is not binding, the Court of its own motion will investigate the question whether the purpose of the suit is merely to obtain a declaration of future rights, even though all the parties desire to have the will construed. The jurisdiction o'f courts of equity in respect ■to testamentary, construction- .will, never, be exercised for the purpose of determining hypothetical, abstract or moot questions.” ’ 40 Cyc. p. 1846.

A proper construction' of the second clause would be: It names the children of the second marriage as contingent remainder-men. Since the life tenant, the widow, is still alive, and neither Aubrey, nor any of her children, may survive her, and they have no rights involved in this suit to be adjudicated until her death, there is no matter in dispute with reference to them and no present interest to be subserved by a construction of the entire 'will.' A decision to the effect that Aubrey Cousins is or is not entitled to share in the remainder after the death of his grandfather’s second wife would be merely determining future rights which may never accrue. That part of the trial court’s judgment which holds that each of the children of S. A. and Mettie Cousins is entitled to a one-sixth interest after the life estate devised to Mettie E. Cousins, their mother, is premature, and for that reason is not binding upon either child. If one or more of such children should predecease theirmother, then the premature judgment would be incorrect as to the share of each surviving child.

A suit praying for the construction of certain clauses of a will which do not affect the validity of other clauses, and which may' never be up for construction owing"'to the nonhappening of contingencies mentioned therein, should be dismissed as being premature. Matlock v. Matlock, 98 N. J. Eq. 572, 131 A. 212; In re Erickson’s Estate, 113 Misc. Rep. 10, 183 N. Y. S. 779.

It is true that the plaintiffs alleged that they undertook to sell an oil and gas lease upon certain lands belonging to the estate for the purpose of realizing money to discharge an indebtedness against the land, and that Aubrey Cousins then and there set up a claim to the land. It is not alleged that the claim asserted by Aubrey Cousins resulted in a failure to lease the land and no evidence whatever was introduced in support of these allegations. They must, therefore, be presumed to have been abandoned. The jurisdiction invoked by a suit to construe a will is limited to such matters as are practical, and call for present action in the premises and upon which the court may properly pronounce a present decree.’ Morrill v. Roberts, 117 Me. 465, 104 A. 818; Northrup v. Ackerman, 84 N. J. Eq. 117, 92 A. 909; Heptinstall v. Newsome, 146 N. C. 503, 60 S. E. 416; Prichard v. Prichard, 83 W. Va. 652, 98 S. E. 877.

The decisions are uniform to the effect that the court will not construe questions that are remote and may never arise or depend upon rights which are contingent. Nashville Trust Co. v. Dake, 162 Tenn. 356, 36 S.W.(2d) 905; 177;. Gillen v. Hadley, 75 N. J. Eq. 602, 73 A. Norton v. Moren, 206 Ky. 415, 267 S. W. 171, 847, 849; Horton v. Cantwell, 108 N. Y. 255, 15 N. E. 546; In re Klumpf’s Estate, 95 Misc. Rep. 436,158 N. Y. S. 1094; In re Peek’s Will, 131 Misc. Rep. 495, 227 N. Y. S. 682; In re Jenkins’ Estate, 111 Misc. Rep. 517, 181 N. Y. S. 585; Callison v. Bright, 85 W. Va. 700, 102 S. E. 675; 40 Cyc. 1858; . Gardner on Wills, 356-361.

In so far as the judgment of the trial court construes the “first” clause of the will, it is affirmed. In all other respects the judgment is reversed, and the cause is dismissed.

On Motion for Rehearing.

This case was tried in the court below upon an agreed statement which was evidently filed under the provisions of article 2177. The caption to the statement is as follows: “The parties in the above entitled and numbered cause agree that the following is a statement of facts upon which judgment in the above entitled and numbered cause was rendered on the - day of March, 1931, the controversy therein having been submitted to the Court upon same as such agreed statement of facts.”

By their motion for rehearing, the appellees insist that we should have construed the will in every particular, because the pleadings show a dispute as to the title to the property and. that we erred in holding that the evidence as shown by the statement of facts does not support the judgment, for the reason that, in the absence of anything in the record to the contrary, the judgment of the court is presumed to be correct and supported by' sufficient evidence, and they cite the case of Haines v. Bankers’ Petroleujp & Refining Co. (Tex. Civ. App.) 273 S. W. 940, in support of the contention. That case was not presented’ to the lower court as an agreed ease,- but there was an agreed statement of facts filed in the Court of Appeals.- The learned judge rendering the opinion cites no. authorities to sustain; his holding.

When a case is tried in the court below upon an agreed statement, aijid upon’ appeal such statement constitutes the state-, ment of facts here, both courts are limited to' the facts as agreed to. The only • material questions- are those presented by the state-’ment (Parker v. Portis, 14 Tex. 166), and the inquiry may not extend beyond its terms, so long as it is valid and is not rescinded (Ætna Life Insurance Co. v. Smith (Tex. Civ. App.) 293 S. W. 243). In such case the court is confined to the facts contained in the statement, and may not make an additional finding, and none should be presumed. Texas Mexican Railway Co. v. Scott, 60 Tex. Civ. App. 482, 129 S. W. 1170. The pleadings filed in the case tried under that article of the statute are immaterial and will be disregarded where the case is submitted on questions of law arising on the agreed statement. Chappell v. McIntyre, 9 Tex. 161. The court is without authority to make .any finding not embraced in or conforming to the agreed statement or to draw any inference not necessarily compelled as a matter of law. Hutcherson v. Sovereign Camp, 112 Tex. 551, 251 S. W. 491, 28 A. L. R. 823; Hafale v. Canfield Mfg. Co. (Tex. Civ. App.) 268 S. W. 986; Lucas v. Patton, 49 Tex. Civ. App. 62, 107 S. W. 1143.

The district judge before whom the case was tried appended the following certificate to the statement:

“The above and foregoing agreed statement of facts is hereby certified to be correct in open court by the undersigned judge before whom said case was tried and it is further certified that said case was tried upon said agreed statement of facts alone and this certificate is the action of said court.

“This the 2nd day of April, A. D. 1931.”

The appeal must be determined upon the agreed statement without presumptions as to further evidence. Fisher’s Heirs v. Leisweitz, 1 Posey, Unrep. Cas. 330; North River Insurance Co. v. Hipsher (Tex. Civ. App.) 280 S. W. 328; Smith v. Nesbitt (Tex. Civ. App.) 235 S. W. 1104; Fuller v. Cameron (Tex. Civ. App.) 209 S. W. 711; Chickasha Milling Co., v. Crutcher (Tex. Civ. App.) 141 S. W. 355; Eastland v. Williams’ Estate (Tex. Civ. App.) 45 S. W. 412.

The correctness of the statement cannot be questioned after the case has been appealed (Long v. City National Bank [Tex. Civ. App.] 256 S. W. 1006), and the- court will consider only such matters as are incorporated into the statement (McDowell v. Fowler, 80 Tex. 587, 16 S. W. 431), and will overrule assignments involving questions not raised or embraced in the agreed case (Eastland v. Williams’ Estate, supra). It is held that the admission of evidence in addition to the agreed statement, over the objections of the adverse party, constitutes reversible error when such evidence is made a basis for the findings and judgment. Ætna Life Insurance Co. v. Smith, supra; 2 Tex. Jur. 664-667.

Under these authorities, we cannot presume anything in support of the court’s judgment, and the motion for rehearing is overruled.


text:
    AMERICAN NAT. INS. CO. v. MENESES.
    No. 8664.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1931.
    Carter & Carter, of San Antonio, for appellant.
    Bat Corrigan, of San Antonio, for appellee.
   FLY, C. J.

Appellee sued for $420 alleged to be due on a policy on the life of Jovita Meneses, issued by appellant. Appellant defended on the ground of failure to pay premiums.

The cause was tried by a jury, which in answer to special issues found that the policy had not lapsed on account of nonpayment of premiums, and that am attorney’s fee should be assessed against appellant in the sum of $100.

Appellee has filed no briefs.

The testimony of appellant is positive and explicit to the effect that at least five of the weekly premiums due on the policy had not been paid and that the. policy had lapsed. Appellee did not show that the premiums had been paid. There was no competent testimony that contradicted the facts sworn by witnesses for appellant that the weekly dues had not been paid for several weeks, on the policy on the life of Jovita Meneses.

What has been said in regard to this suit applies with equal force to the facts in the companion case, American National Insurance Company v. Maria H. Castillo, 42 S.W. (2d) 1048, and that case will be decided by this opinion.

The records are incumbered with a number of policies on other people which have no bearing on the facts in this case, and it was error to admit them. They may have confused the jury and caused them- to lose sight of the relevant facts as they seem to have done on the trial.

No pleadings were filed by appellee setting up the question of waiver of forfeiture by acceptance of premiums paid long after they had become due, and,' of course, any testimony to that effect cannot be considered by this courh

The judgment is reversed, and the cause remanded.


text:
    AMERICAN NATIONAL INSURANCE COMPANY, Appellant, v. Maria H. CASTILLO, Appellee.
    No. 8665.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1931.
    Carter & Carter, of San Antonio, for appellant.
    Bat Corrigan, of San Antonio, for appellee.
   FLY, C. J.

This cause is a parallel one to the case of American National Insurance Company v. Jesus MenesesJ 42 S.W.(2d) 1047, this day decided by this court, and the decision in this case will be governed by the rulings in that case.

For the reasons given in the opinion- named herein, the judgment, is reversed, and the cause remanded.


author: BLAIR J.

text:
    HOMUTH v. WILLIAMS.
    No. 7643.
    Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1931.
    Cox & Brown, of Temple, for appellant.
    J. W.. Thomas, of Belton, for appellee.
   BLAIR J.

Appellee sued appellant for damages resulting from a collision of an automobile with his wagon, alleging that the automobile causing the collision belonged to appellant, and was being driven at the time by his son and in furtherance of appellant’s business. Appellant was duly served with citation on October 8, 1930, to appear on October 21, 1930, but he failed to file any. answer or appear in the case, and on October 23, 1930, judgment by default was rendered in favor of appellee for $1,214.50. On October 24, 1930, appellant' filed his motion to set aside the default judgment, and on January 2, 1931, his amended motion, alleging in substance that he had a policy of insurance with Fidelity Union Casualty Company of Dallas, which obligated it to defend any suit of this character; that on the day he received the citation he delivered it to an agent of said company, who assured him that proper defense would be made; that by reason of the illness of the wife of the superintendent of claims of said company, oversight in handling the defense of such suit occurred; and that as soon as he learned of the default judgment this motion was made to set it aside. Appellant further alleged as a meritorious defense to the suit a general and special denial of negligence, denial of agency or employment of the driver of the, automobile causing the collision, and that the driver of his car was on a mission or private venture of his own.

On January 2, 1931, appellee filed his reply to the amended motion, alleging lack of diligence on the part of appellant in filing an answer to the suit, and failure to allege a meritorious defense thereto. On the same day the trial court heard and overruled the motion to set aside the default judgment and to grant appellant a new trial, hence this appeal, upon the following proposition: “The defendant, having within the time required by law, filed his motion to set aside the judgment, which alleged a state of facts constituting a reasonable excuse for failure to file answer in time, and other facts which, if true, would have defeated plaintiff’s cause of action, and on hearing having proved the facts constituting the reasonable excuse, was entitled to a judgment setting aside the default judgment and setting the ease down in regular order for trial on the merits.”

The facts proved on the hearing of the motion are in substance as follows: The insurance company’s policy on appellant’s car required it to defend suits of this character against him. Appellant was served with citation October 8, 1930, and on the same day he delivered the citation to the agent of the insurance company at Temple, Tex., who immediately sent it to the company at Dallas, Tex., in accordance with custom and instruction, the agent telling appellant that he need do nothing further as the company would defend the suit. The superintendent of claims for the company received the citation in sufficient time to have answered by appearance day, hut “through oversight” failed to deliver it to the legal department as required by the rules and custom of the company, and “through oversight” delivered the citation with the file in the ease to an investigator of .the company, with instructions to go on the ground and report back before appearance day. The superintendent of claims sought to excuse these oversights because his wife was ill and going through a clinic at Dallas about the time the citation was delivered to the company. The investigator, though instructed to go to Temple first, went first to Houston and Beaumont and then to Temple, where he learned that default judgment had been rendered in the case. The superintendent of claims, a lawyer, knew that a formal demurrer and denial, which he could have filed without investigation of the accident, would have prevented the default judgment. It was also shown that the insurance company had investigated the accident about the time it happened, and had in’ its files these reports for several months prior to the filing of this suit. This evidence shows that the failure to answer the suit in time was due to the negligence of appellant and his agents to whom he had intrusted the defense of his suit, and therefore the trial court legally exercised its discretionary powers in refusing to set aside the default judgment and to grant a new trial.

It is a well-settled rule that the question of setting aside a judgment by default is a matter within the sound discretion of the trial court, and unless that discretion has been clearly abused, an appellate court will not disturb the judgment of the trial court. London Assurance Corp. v. Lee, 66 Tex. 248, 18 S. W. 508; Aldridge v. Mardoff, 32 Tex. 207; Belknap v. Groover (Tex. Civ. App.) 56 S. W. 249; Ishmel v. Potts (Tex. Civ. App.) 44 S. W. 615; Sfiris v. Madris (Tex. Civ. App.) 13 S.W.(2d) 750.

The law is also well settled that a defendant seeking to set aside a judgment by default must show that his failure to answer and defend the suit within time was not the result of his negligence; and to allege a meritorious defense to the suit. Clute v. Ewing, 21 Tex. 679; Coffee v. Ball, 49 Tex. 25; Missouri, K. & T. Ry. Co. v. Davidson, 25 Tex. Civ. App. 134, 60 S. W. 278; Wear v. McCallum, 119 Tex. 473, 33 8. W. 723; Western Union Tel. Co. v. Skinner, 60 Tex. Civ. App. 477, 128 S. W. 715, 716; Hooser v Wolfe (Tex. Civ. App.) 30 S.W.(2d) 728.

Our above conclusion renders unnecessary, a decision on the question of whether appellant alleged a meritorious defense to the suit. We therefore pretermit a discussion of the question and affirm the judgment of the trial court.

Affirmed.


author: BAUGH, J.

text:
    TERRELL v. WILLIAMS.
    No. 7634.
    Court of Civil Appeals of Texas. Austin.
    Sept. 30, 1931.
    Rehearing Denied Oct. 21, 1931.

      Barnes & Pierson and Harris & Harris, all of Austin, for appellant.
    Hart & Patterson, of Austin, for appellee.
   BAUGH, J.

Appellant, plaintiff below, sued appellee for damages for personal injuries sustained by ber while entering the basement of ap-pellee’s dry goods store in the city of Austin. The ease was tried to a jury upon special issues, and, upon their answers thereto, the trial court entered judgment that plaintiff take nothing; hence this appeal.

The appellant’s cause of action, predicated upon negligence, is based upon two grounds: First, negligent construction and maintenance of the steps in question; and, second, failure to provide adequate lights. Appellee’s defense was, first, that appellant had executed a written release of her claim against him; and, second, that she was guilty of contributory negligence in entering the basement' in question.

Appellant, by supplemental petition, pleaded that the release in question was procured by the agent of appellee through fraud and misrepresentation, and by procuring her signature at a time when she was suffering severe pain, under the influence of morphine, and did not realize what she was doing.

The jury found, first, that the appellant executed the release pleaded; second, that she did not at the time “know and understand that the instrument was a full release from any claim for damages she might have against the defendant.” They also found that appellee was guilty of negligence in the manner in which the steps were constructed and maintained, and that such negligence was a proximate cause of her injury; They found against appellant on the issue of insufficient lighting; and that she was guilty of contributory negligence in the manner in which she went down the steps into the basement; and that such contributory negligence concurred with the negligence of appellee in causing her injuries.

We have reached the* conclusion that the appellant did not show sufficient grounds to vitiate the release she admittedly signed, which was necessary in order for her to recover. While there were allegations of fraud and misrepresentation on the part of appel-lee’s agent in securing the release, no such issue was submitted to the jury nor requested' to be submitted by either party. We have read carefully the statement of facts, and find no evidence of fraud or misrepresentation on the part of appellee or his agent. While appellant testified that she was, when she signed the release, in severe pain and under the influence of morphine, she further testified in detail as to the nature and character of the visit of appellee’s agent; of her conversation with him at the time with reference to her injuries; and of his statements to the effect that appellee wanted to treat her right and pay all the expenses incurred by virtue of her injury. Though she testified that she did not read the release, and did not know its contents, there was no testimony that she was prevented in any manner from reading it, nor from having it fully explained to her before she signed it. On the contrary, her testimony fully disclosed that appellee’s agent was there for the purpose of settling with her, and taking care of her expenses in connection with her injury, and that he did in fact leave with her a check for $50, the amount named in the release. There is no proof of fraud, nor do we find any proof that the appellee’s agent knew at the time that she was not normal mentally, or that she was under the influence of any drug.

Under these circumstances, we think appellant wholly failed to produce sufficient proof to warrant setting aside the release, or the submission of any issue of fraud or misrepresentation to the jury.

The courts have held that signing an instrument without reading it or knowing its contents affords no grounds for setting it aside, in the absence of any fraud or misrepresentation. Texas Midland Ry. Co. v. Hurst (Tex. Civ. App.) 262 S. W. 172; Globe Fire Ins. Co. v. Hamburger (Tex. Civ. App.) 103 S. W. 222; Allgood v. Tarkio Electric & Water Co., 222 Mo. App. 964, 6 S.W.(2d) 51. The finding therefore of the jury that the appellant did not know the nature and contents of the instrument she signed, in the absence of any further finding that her failure to do so was in any manner occasioned either directly or indirectly by any act or representations on the part of appellee, is not sufficient to avoid her written release. Her failure to know its contents must be attributed to “her own negligence, and not to any fraudulent act or misrepresentation of the appellee, or of his knowingly taking advantage of the condition in which she claims to have been mentally and physically at the time.

Under this view of the case, the other issues raised become immaterial, and the judgment of the trial court will be affirmed.


author: McClendon, c. j.

text:
    SOUTHWEST INVESTMENT CO. v. TERRY.
    No. 7655.
    Court of Civil Appeals of Texas. Austin.
    Oct. 7, 1931.
    Rehearing Denied Nov. 4, 1931.
    Jerome Sneed, Jr., and Gabriel A. Martins,both of Austin, for appellant.
    E. A. Wallace, of Cameron, for appellee.
   McClendon, c. j.

Suit by appellant against appellee upon a paving certificate, and to foreclose a paving lien upon real estate in the city of Cameron. The trial court sustained a plea to the jurisdiction, based upon allegations that the property was homestead, and no lien therefore existed, and that the amount involved was below the jurisdiction of the district court. The plea was sustained, the suit dismissed, and plaintiff has appealed.

Appellant’s contentions may be stated as follows: (1) The plea was waived because urged for the first time in an amended answer filed after issue joined on-the merits; (2) the plea was bad in that it did not allege that plaintiff’s allegations setting up a lien on real estate were fraudulently made for the purpose of conferring jurisdiction.

The first proposition we hold well taken.

The suit, which was upon a paving certificate for $189.72, reasonable attorney’s

fees alleged at $100, and to foreclose a paving lien, was filed October 14,1930. Defendant answered'November 11, 1930, by general demurrer, general denial, and special plea in bar asserting the homestead character of the property. By supplemental petition filed January 5, 1931, plaintiff joined issue upon this answer; and on the same day filed a first-amended original petition in which the attorney’s fees were alleged at $500. Defendant’s first-amended original answer, filed April 30, 1931, contains the plea to the jurisdiction. Plaintiff replied .to this plea, urging, among other things, that it came too late because asserted for the first time after issue joined on the merits.

Hoffman v. Building & Loan Association, 85 Tex. 409, 22 S. W. 154,155, is directly in point, and we sustain the first proposition above on the authority of that case.

The Supreme Court (Associate Justice Henry writing) qualified its holding in this language: “We do not wish to- be' understood as deciding that cases may not arise in which it will be within the discretion of the court to permit the defendant to withdraw all of his pleadings, and plead anew, for the purpose of presenting a plea in abatement.”

The case was not sought to be brought within this exception. No showing was made why the plea was not seasonably filed, and no request or order made withdrawing the former answer to the merits.

Defendant contends that, upon the showing that the property was homestead, the trial court lost jurisdiction of the entire case, citing Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770, and Barnett v. Paving Co. (Tex. Com. App.) 234 S. W. 1081. As pointed out in Gehret v. Hetkes (Tex. Com. App.) 36 S.W.(2d) 700, it affirmatively appeared on the face of plaintiff’s pleadings in each of those cases that the property was homestead. In such case, manifestly the court could acquire no jurisdiction to foreclose the alleged lien, shown to be void by plaintiff’s own pleadings; and, where the alleged amount in controversy was below the jurisdiction of the court, any judgment based upon such pleáding would necessarily be void.

The case here is ruled by Ablowieh v. Bank, 95 Tex. 429, 67 S. W. 79, 881. There is no distinction, as regards jurisdiction, between a contract and a statutory lien. One has as-much right to' litigate the latter as the former, and jurisdiction of the personal action is not lost by a showing or an adjudication that the lien did not in fact exist. Massie v. Ft. Worth (Tex. Civ. App.) 262 S. W. 837, is directly in point. In either case, the court’s jurisdiction is determined by the allegations of plaintiff’s petition, unless seasonably attacked for fraud.

This holding renders immaterial appellant’s second proposition, above. We may say, however, that we are inclined to hold that the allegations of the plea were tantamount to an assertion of fraud on the jurisdiction in the assertion of the lien. The plea expressly alleged fraud in the allegation which placed the attorney’s fee at $500. The plea also alleged specifically that the property was homestead, that defendant and his family were living upon it at, prior, and subsequent to the time when the lien could attach, and that these facts were well known to defendant and the city.

In this connection, we quote further from the Hoffman Case, above: “Such fraud exists when the jurisdictional averments are not only untrue, but are made by the pleader for the purpose of deceiving, and without being believed to be true.”

The plea, we think, alleged facts which embraced all the essential elements of fraud.

The trial court’s judgment is reversed, and the cause remanded for trial on the merits.


author: WALTHALL, J.

text:
    JONES et ux. v. CALDWELL et al.
    No. 2581.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 22, 1931.
    Rehearing Denied Nov. 12, 1931.
    W. R. Smith, of Midland, and Gibbs & Lewis, of San Angelo, for appellants.
    Whitaker & Peticolas, of El Paso, and Charles Yonge, of Midland, for appellees.
   WALTHALL, J.

This case presents an appeal from the order of the district court of Midland county overruling pleas of privilege of appellants, O. P. Jones and wife, Josephine Jones, to be sued in Potter county, their plaóe of residence.

The suit was brought by appellee, J. M. Caldwell, in the district court of Midland county, against O. P. Jones and wife,Josie Pay Peck and husband, Hal C. Peck, M. Agress, American Potash Company, a corporation, Homer R. Mitchell, Wirt, Davis and the Pirst National Bank of Midland, Tex., all named as defendants in the suit, and alleging the residences of each, all nonresidents of Midland county, except the First National Bank of. Midland.

The suit is to recover personal judgment against O., P. Jones for about the sum of $10,-000, alleged to be due by Jones to him (Caldwell) as attorney’s fees and commissions which he alleges he earned by way of services rendered Jones in procuring the execution .of certain mineral leases covering lands owned by Jones, all specifically set out in the petition, and negotiating certain compromises in connection with controversies arising over said mineral leases. The defendants, appellants here, other than the Pirst National Bank of Midland, are in different ways more or less connected in interests with said mineral leases. No judgment is asked against them, other than Jones, but are made parties defendant in order that they may be bound by any judgment that may be rendered. The Pirst National Bank of Midland is made a party to the suit because named as depository bank for certain rentals to be paid to Jones under the mineral leases as the rentals became due.

Appellee asks judgment, for his debt against Jones, with interest, judgment establishing his claim on rentals not yet paid, judgment that Agress and those named pay him his proportionate part of said moneys, that the Pirst, National Bank of Midland be adjudged to segregate said moneys for this plaintiff’s benefit, as tbe same are received by it, and for relief general and special.

Jones duly filed bis plea of .privilege to be sued in Potter county, the place of his residence. Caldwell filed his controverting affidavit, which followed substantially the same allegations as are contained in his petition, and with the following paragraph, not contained in his petition, added:

“IX. Plaintiff would with respect show to the court that the venue of said cause is properly Iain in Midland County, Texas, for the ■reasons hereinbefore stated, and for- the reason .that the obligations for the payment of rentals, as aforesaid, were in writing and performable in Midland County, Texas, and that after said obligations were, signed by the parties, the defendant, O. P. Jones orally assigned to the plaintiff a one-tenth (¾0) undivided interest in and to said obligations and amounts to be paid, and that plaintiff has a right-to insist' that said obligations continue to be paid in Midland County, Texas, as he- has never consented or agreed, that th.e place of payment of same should be changed, and the same could not be changed without his consent and- for the further reason that the depository of said payments as made, as provided for in the contract,-' is the First National Bank of Midland, Texas, which is a corporation duly incorporated under the laws of the United States with its principal place of business and residence in . Midland County, Texas, and said bank is a necessary, and proper party to this suit.
“Wherefore, plaintiff prays that the Pleas of Privilege be overruled.”

The controverting affidavit is signed by appellant's attorneys and verified by appellant.

On the hearing of the plea of privilege, and the controverting affidavit, appellant Jones agreed that “for the pu'rp'ose of the hearing on the plea of privilege and controverting affidavit, the allegations of plaintiff’s controverting affidavit are true.”

Appellee’s petition and appellant’s plea of privilege states Jones’domicile to be in Potter county, and no controversy is made tliat Jones has his domicile in Midland county. Appellee alleges an express parol agreement, with Jones that Jones would pay him “the sum of ten per cent., upon the amount due and to become due,” as rentals under said leases for his services.

The petition alleges the domicile of the First National Bank of Midland to be in Midland county, but the petition does not allege any transfer or assignment to appellee of any interest in any of the mineral leases or any of the rentals paid or tó be paid under or by reason thereof, as provided in subdivision 4 of article 1995 of our venue statute (Rev. St. 1925).

It is true that in his controverting affidavit, as above, appellant alleged that, after the obligations were signed by the parties, meaning, no doubt, the mineral leases, Jones orally assigned to him a one-tenth undivided interest in and to said obligations and amounts to be paid, but such assignments of such obligation and amounts to be paid are not alleged in the petition. It is also true that for the' purposes of the hearing on the plea of privilege and controverting affidavit appellant, agreed that the allegations of the controverting affidavit were true.

It has often been held by the courts in considering a plea of privilege and controverting affidavit that the plaintiff’s right to retain the venue must depend upon his petition, and ■that his controverting plea serves only to join the issue as to venue under the plea of privilege and the petition then filed, and that the plaintiff cannot, in such controverting affidavit, be heard to set up a new or different ■cause of action than that sued upon. Witting v. Towns (Tex. Civ. App.) 265 S. W. 410; In Brown v. Heid Bros., Inc., 12 S.W.(2d) 587, 588, this court, speaking through Judge Pelphrey, said: “A ground of venue stated in ;the controverting, affidavit,, which is foreign .to the cause of action as declared upon in the petition, obviously will not defeat the plea of privilege.”

■Again, in Sayeg v. Federal Mortgage Company, 16 S.W.(2d) 567, 568, this court (speaking through Judge Pelphrey) again referred to and quoted from Wittjng v. Towns, supra, and said: “ ‘The statute prescribes that he [in the controverting affidavit] must set up the “fact or facts” relied upon to retain venue. Necessarily these facts must be such facts as,would be admissible in evidence under his orginal or amended petition.’ See also Brown v. Heid Bros.,” supra.

The Beaumont Court in Grogan-Cochran Lumber Co. v. McWhorter, 4 S.W.(2d) 995, refers with approval to Witting v. Towns, as do other cases referred to Shepard’s S. W. It. Citations. The specific facts relied upon to retain venue must be pleaded in the petition afid set out in the controverting affidavit, otherwise, if not pleaded in the petition, though admitted to be true for the purposes of the hearing on the issue of venue, proof of such facts not pleaded could not be heard on the hearing on the plea;, the controverting affidavit tenders only the issue as made by the petition.

If we are not in error in what is said above, the facts.as pleaded by appellee are not sufficient to give him an equitable interest or lien upon said fund and moneys to be paid into the depository, Midland Bank, or to make applicable the principle announced in any of the following cases: Ives v. Culton (Tex. Com. App.) 229 S. W. 321; Milmo National Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828; Davis & Goggin v. State National Bank (Tex. Civ. App.) 156 S. W. 321, as submitted by ap-pellee.

In tbe last above cited case, writ of error refused, it is distinctly said by this court, speaking through Judge Higgins, that a mere agreement to pay a debt out of a designated fund of itself is not sufficient to constitute an equitable assignment; there must be an appropriation of the fund pro tanto by an order on the specific fund, or by transferring the amount otherwise in such manner that the holder of the fund is authorized to pay the amount directly to the creditor without the further intervention of the debtor;, that is, to create such assignment there must be a surrender or control over the funds assigned. No such facts are shown in the petition here. Under the holding in that, case the First National Bank of Midland is not a necessary party to the suit; appellee, having no equitable assignment of the funds to' be paid into the bank, could have no right to have the bank segregate the 10 per cent, of the amount of the funds paid into the bank.

We have concluded that under the record as presented here the plea of privilege should have been sustained. It is unnecessary to discuss other matters presented.

The case is reversed, and judgment here rendered transferring the case to Potter county.


text:
    PETER CO. v. GREEN.
    No. 7657.
    Court of Civil Appeals of Texas. Austin.
    Sept. 30, 1931.
    Rehearing Denied Oct. 28, 1931.
    E. A. Wallace, of Cameron, for appellee.
   McClendon, c. j.

The record contains no statement of facts, no assignments of error, and no brief for appellant.

Appellee has filed a brief under Courts of Civil Appeals Rule No. 39, and requests af-firmance of the trial court’s judgment.

Appellee is entitled under this rule to have the case considered from the viewpoint of his brief.

Also, it is within the discretion of this court, where appellant has filed no brief, to examine the record, and if no fundamental error is apparent, to affirm the judgment. Haynes v. Radford Co., 118 Tex. 277, 14 S. W.(2d) 811. For additional authorities on both points, see 3 Texas Jurisprudence, p. 936, § 655.

We have examined- appellee’s brief and have also examined the record. The suit was upon a promissory note, and the defenses pleaded were want of consideration and certain offsets. The trial court’s findings negatived all defenses. We find no error, fundamental or otherwise, in the record.

The trial court’s judgment is accordingly affirmed.

Affirmed.

On Motions for Rehearings in Nos. 7657 and 7700.

The Peter Company, appellant and plaintiff in error, moves for rehearing in each cause and to consolidate the appeal and writ of error proceedings. ■

The substance of its contention is that it had the right, after filing the record in this court, to abandon the appeal and sue out a writ of error. The general principle thus asserted is correct. Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482.

The rule is, however, subject to certain limitations.

In the first place the writ of error should be returnable to the same term of the appellate court as was the appeal. See Insurance Co. v. Cashion (Tex. Civ. App.) 293 S. W. 664, reversed on other grounds (Com. App.) 299 S. W. 895 and 3 Texas Jur. p. 58, § 18. The appeal was taken February 24, 1931, the record filed in this court May 16, 1931, and an order entered June 24, 1931, setting the cause for submission September 23, 1931. The writ of error was sued out June 29, 1931, and the record filed in this court September 16, 1931. The term of this court' ended and a new term began on the first Monday in October, 1931. Acts 1927, 40th Leg., 1st Called Sess., p. 147, ch. 50, § 1 (Vernon’s Ann. Civ. St. art. 1816), amending Rev. St. art. 1816. Under chapter 64, p. 98, Gen. Laws Reg. Sess. 42d Leg. 1931 (Vernon’s Ann. Civ. St. arts. 1847, 1848), even if the writ of error proceeding had been set down for submission on the very day the record was filed (September 16th), it could not have been set for an earlier date than November 10, 1931, seven weeks later than the submission date in the appeal, and in another term of this court. But it could not have been reached on that date due to the fact that a large number of cases were filed in this court between filing the appeal record and that of the writ of error, and the latter would not have been reached in the regular order of its setting until the first Wednesday in February, 1932. Had appellant promptly filed its writ of error record, moved for a consolidation of the two proceedings, and filed its brief in time to have had the cause presented upon the date set for submission of the appeal, all of which the record shows was readily within appellant’s power, a wholly different situation would have been presented. But the writ of error record was not filed in this court until seven days before the submission date in the appeal, no brief has ever been filed in either proceeding by appellant, and no effort was made to consolidate the two proceedings until after we had affirmed the cause on appeal and dismissed the writ of error upon appellee’s motion.

Another limitation upon the right to successive appeals is the right given to appel-lee under C. C. A. Rule 39. As stated, the appeal was regularly set for submission on September 23,1931, by order of June 24,1931. Notice of such setting was promptly given the parties. Appellant filed no brief; whereupon appellee availed himself of the right aecord-ed.in rule 39, briefed the cause, and asked for an affirmance of the judgment. If appellant had sought a dismissal of the appeal, before the right to an affirmance accrued under rule 39, he would have been entitled to such order. He could not, however, deprive appellee of his rights under the rule, by mere inaction.

Appellant has not brought itself within any rule which would entitle it as a matter of law to the relief it seeks; nor is there a reasonable showing of diligence, which is essential in invoking the discretionary powers of the court. •

The several motions are overruled.

Motions overruled.