author: FLY, C. J.

text:
    COWARD et al. v. WILLIAMS et al.
    (No. 7984.)
    Court of Civil Appeals of Texas. San Antonio.
    March 14, 1928.
    I. Pleading <§==>248(17) — Refusal to permit trial amendment challenging entire vote of precinct held not abuse of discretion, where original petition attacked rejection of some votes and acceptance of others.
    Where it was admitted in original petition that returns from different voting boxes were duly canvassed, sole ground of attack being rejection of some votes and acceptance of others, refusal to permit filing of trial amendment challenging entire vote of certain precinct because there were no tally sheets, voting lists, and returns in voting box of that precinct held not abuse of discretion.
    '2. Pleading <3=236(3) — Permission to file trial amendments is within reasonable discretion of district judge.
    Permission to file trial amendments is within reasonable discretion of district judge.
    3. Highways <3=90 — That tally sheets, voting lists, and returns were not in voting box of precinct would not invalidate election.
    In contest of election for issuance of bonds for road purposes, that tally sheets, voting lists, or returns were not in voting boxes from certain precinct would not invalidate the election, since it was but an irregularity.
    4. Appeal and error <©=743(l) — Assignment referring to “bill of exeption No. 3” without indicating page of transcript presented nothing for review.
    Where Court of Civil Appeals was referred by assignment of error to “bill of exception No. 3” without indication of page in either of two transcripts filed, and diligent search failed to disclose bill, held assignment presented nothing tangible for review.
    5. Highways <3=90 — Vote of one born in Mexico who had only procured first naturalization papers held properly rejected (Rev. St. 1925, art. 2955; Act Cong. June 29, 1906, § 4, as amended [U. S. Comp. St. § 4352]).
    In contest of election for issuance of bonds for road purposes, vote of one born in Mexico, who took out first naturalization papers 36 years previous to casting contested vote and who never proceeded any further with naturalization, held unlawful and properly rejected, under Rev. St. 1925, art. 2955, requiring voter to be citizen of United States, since by terms of Act Cong. June 29, 1906, § 4, as amended by Act June 25, 1910, § 3, and by Act May 9, 1918, §§ 1-3 (U. S. Comp. SL § 4352), foreigner becomes citizen when he obtains final papers.
    6. Highways <3=90 — In contest of election for bonds for road purposes, vote of one living outside district held properly rejected.
    In contest of election for issuance of bonds' for road purposes, vote of one living outside bounds of road district held properly rejected, voter being unqualified.
    7. Elections <3=228 — Statute prohibiting conveyance of voters to voting place in vehicles held not to prohibit one from permitting friends to ride with him to polls (Rev. St. 1925, art. 3025).
    Rev. St., 1925, art. 3025, prohibiting conveying of voters to voting place in vehicles, held not to contemplate that one might not permit friends and neighbors to ride with him to polls.
    Appeal from District Court, Atascosa County ; O. W. Murray, Jr., Judge.
    Suit by I. A. Coward and others against D. Morgan Williams and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    R. R. Smith, of Jourdanton, for appellants.
    Earl D. Scott, of Jourdanton, for appellees.
   FLY, C. J.

I. A. Coward, Ben Booth, Allen Hime,' Ambrose . Akers, and Steve Nixon, 'claiming to be property owners and taxpayers in road district No. 2, of Atascosa county, filed a contest of an election for tlie issuance of bonds in the sum of $250,000 for road purposes, against L. Morgan Williams, the county attorney of Atascosa county. The court heard the evidence and rendered judgment sustaining the validity of the election.

It was alleged by the contestants that road district No. 2, lies in Atascosa county, and was duly established by the commissioners’ court of that county, that an election was duly and legally held on May 14, 1927, under orders of said commissioners’ court, in voting boxes at Charlotte, in voting precinct No. 18; at Crown, in voting precinct No. 9; at Tobey, in voting precinct No. 11; at Hindes, in voting precinct No. 23 — for the purpose of determining whether bonds should be issued in the sum of $250,000, bearing interest at 5½ per cent, per annum, payable in 30 years, for the purpose of constructing public roads in the precinct, and to determine the levy of taxes to pay interest on bonds and provide a sinking fund for redemption of the bonds at maturity. It was alleged that the election was held and the returns canvassed by the commissioners’ court, and it was declared that the election was lawfully held, 369 votes being cast, of which number 245 votes were cast for the issuance of the bonds and 121 against the issuance of the bonds. It was declared that issuance of the bonds had been authorized by two-thirds of the votes cast.

Appellants thus state their grounds for the contest:

“(1) That illegal votes, named specifically, were cast in favor of said proposition, which, if eliminated, would reverse the result declared by the commissioners’ court.
“(2) That irregularities, in the matter of the use of the Spanish language in assisting voters, electioneering within the polls by the officers thereof for the proposition, the hauling of voters to the polls, the denial of the ballot to lawful voters, marked the election to such an extent as to make the results so uncertain as to require thd ordering of a new election and the vacating of the returns canvassed.
“(3) That voters who were lawfully entitled to vote were denied the right, on application at the polls in due time, form, and season, and who would have voted against said bonds, as would change the result of said election.”

The court in his judgment found that 11 votes were cast, by voters named, at the election for the issuance of the bonds, which were unlawfully cast in favor of the bond issue and they were eliminated and subtracted from the 248 votes canvassed by the commissioners, leaving 237 legal votes for the bonds. The court found that five illegal votes were cast against the issuance of the bonds and they were deducted from the 121 votes counted against the issuance of the bonds, leaving 116 legal votes cast against such issuance, still leaving two-thirds of the votes in favor of the bonds.

The court found also' that no other votes of those challenged should have been rejected. The costs were assessed against contestants, ■S. Nixon, who had withdrawn as a contestant, being made to pay his part of the costs.

The first assignment of error complains of the action of the court in refusing to permit appellants to file a trial amendment challenging the entire vote of the Hindes precinct because there were no tally sheets, voting lists, and returns in the voting box of that precinct. Permission to file trial amendments is within the reasonable discretion of the district judge, and we perceive no abuse of that discretion jin this case. It was never contemplated that a plaintiff during the course of a trial might set up a new ground for his action through a trial amendment. It was admitted in the original petition that the returns from the different voting boxes were duly canvassed, no attack being made upon any of the returns, and it was not claimed-that there had been any error or irregularity in the manner of conducting the election or making the returns; the sole ground of attack being the rejection of some votes and the acceptance of others. If the evidence had conclusively shown, as it did not, that tally sheets, voting lists, or returns were not in the voting boxes from Hindes precinct, it was a mere irregularity that would not have invalidated the election and deprived the people of their votes. In the case of Lipscomb v. Perry, 100 Tex. 122, 96 S. W. 1069, it was said in a contested election case in regard to a trial amendment:

“We are therefore clearly of the opinion that it was competent for the trial judge, in passing upon the exception, to apply the well-settled rule which gave to him the discretion to allow or disallow the introduction of new issues as the time and circumstances might, in his judgment, make proper.”

The court further said:

“Before the adoption of the rule as to trial amendments it had often been held that there is a limit to the right of amendment, and that a time must come in the progress of a cause when the court may properly refuse to allow its further exercise. * * * At such time the refusal or allowance of an-amendment becomes discretionary with the court and the party attacking the exercise ol that discretion must show that it has been abused to his injury.”

There is no suggestion that any fraud had been perpetrated in the voting precinct of Hindes.

The third assignment of error is overruled. The record fails to indicate any effort upon the part of the appellants to have the costs retaxed, or to raise the question in any manner. This court is referred, in the assignment of error, to “bill of exception No. 3,” without indicating the page of either of two transcripts filed herein where it can be found and a diligent search of the transcripts fails to disclose it. The assignment of error presents nothing tangible to this court. Appellant says that the bill of exceptions “was lost somewhere between Jourdanton and Pearsall in the shuttlecock journeys which the court below and eontestee’s counsel imposed on contestants’ counsel,” but insists that the error is apparent of record. We fail to discover it.

The seventh assignment of error assails the action of the court “in finding that the vote of P. Sanchez at the Crown voting box was unlawfully cast against said bond issue.” No assistance is given the court by any reference to the pages of the statement of facts where the evidence of Sanchez appears, but the statement of facts discloses that Sanchez did not vote at the Crown voting box, but at Amphion. It appears from the facts that the name of the party who voted at Amphion was Prajades Santos, and not Sanchez. He was bora in Mexico, and took out his first naturalization papers 36 years ago and never proceeded any farther, and did not have final papers. Under article 2955, Rev. Stats. 1925, among other qualifications of a voter, he must be a citizen of the United States, and by the terms of section 3750, Barnes’ Fed. Code (U. S. Comp. St. § 4352), a foreigner becomes a ■citizen when he obtains his final papers. The second section of the paragraph cited requires the alien, in not less than 2 years nor more than 7 years after declaration of intention, to apply for final papers. Santos had never applied for final papers. The evidence was. quite unsatisfactory even as to first papers having been obtained. Of course, repeated voting did not make him a citizen. Santos could not identify the officer before whom he filed his declaration over -30 years ago. No Sanchez appears among the list of voters as claimed by appellants. The assignment is overruled. ' '

The eighth assignment of error complains of the rejection by the court of the vote of L. F. Lozano. His evidence showed that he and his family had for 3 years lived on a farm outside the bounds of road district No. 2, and consequently he was not a qualified voter in the district. It was shown by the evidence of B. B. Freeborough, a civil engineer, that the 100 acres on which Lozano and family lived, and where he intends to make his permanent home, “is on the north side of the Atascosa creek, outside of road district No. 2.” Lozano had rented his farm inside the district, from which he moved on account of a drouth.

Neither' the assignment of error nor the statement shows any reason for attack on the action of the court in counting the vote of Mrs. Gussie Semple. She was a resident of the precinct for over 6 months before she voted, and it is not claimed that she did not have an exemption certificate on account of age. Assignment No. 9 is overruled.

The tenth assignment assigns error in counting the votes of Mrs. Marciana Morales, Isidro Bustamente, and Savias Longorio. After discussing the matter to some extent, appellants conclude “that it is not clear how any of these Mexicans voted, except Mrs. Mar-ciana Morales,” and that it is of no importance as to the votes except as offering a reason “to throw out and refuse to consider the vote cast at the Charlotte voting box.” The evidence does not show that any officer of the election explained in Spanish or any other language as to how she should vote. She said she voted as her husband did, probably for the bonds. The assignment is overruled.

The twelfth assignment is overruled. There were no reasons presented that would have justified the court in rejecting the whole vote at Charlotte. The evidence was conflicting as to aid given voters through the use of the Spanish language, and the evidence failed to show that vehicles were used to convey voters to the voting place, within the spirit of article 3025. That law was enacted to prevent vehicles being used by candidates or other interested parties to convey voters to the polls. The custom had reached the stage before the law was passed that, in every town and village, vehicles were sent out in every direction to gather up prospective voters and convey them to the polls. It had become a species of petty bribery, and the law was passed to repress and destroy the practice. It was never contemplated that a man might not permit his friends and neighbors to ride with him to the polls. If the statute is literally construed, a man could not take his wife, sons, and daughters with him in his automobile to the polls. The voters of a voting box cannot be deprived of their ballots upon such uncertain testimony as was offered in regard to Charlotte.

The judgment is affirmed.
      ®u»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    SOUTHERN CARTRIDGE CO. v. O’BRIEN.
    (No. 9094.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 23, 1928.
    Rehearing Denied March 29, 1928.
    Work and labor <®^>28(4) — Finding that reason-áble value of services of expert accountant and bookkeeper from March 1st to April 12th was $240 held sustained.
    In action to recover for reasonable value of services for a period from March 1st to April 12th, evidence to effect that plaintiff had devoted most of his time to company’s books and was an expert accountant and bookkeeper held sufficient to sustain finding that reasonable value of services for such period was $240.
    Appeal from Harris County Court; Ray Scruggs, Judge.

      Action by S. W. O’Brien against the Southern Cartridge Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Fulbright, Crooker & Freeman and Ml C. Chiles, all of Houston, for appellant.
    Fogle & Gentry and C. S. Gentry, all of Houston, for appellee.
   GRAVES, J.

While under the disposition to be made of the appeal no opinion is required of this court in this cause, for the guidance of counsel the general ground upon which its judgment is based may be thus stated:

The judgment below, pursuant to a jury’s verdict upon special issues, awarded the ap-pellee a recovery of $315, with interest at the ’ rate of 6 per cent, per annum from and after January 1, 1925, as for the reasonable value of his services to it for the period from March 1 to April 12, 1924.

While there are other incidental and subsidiary questions discussed in the briefs of the parties, it is apparently conceded by appellant that, if there is sufficient evidence in the record to support the jury’s finding, under special issue No. 4, that the reasonable value of appellee’s services for the stated period was $240, the judgment should be affirmed; after careful examination of the statement of facts, we conclude that there was such supporting evidence.

The appellee himself testified without contradiction that throughout the given period, while the company was in a sense inactive during that time, he kept a complete record of its labor accounts, of all its receipts and disbursements, the labor accounts being turned in to him on a time sheet every day, which were kept by him on a file on his desk; that he only entered these items on the books when the company had money with which to pay the accounts, but that he also kept a record of all costs of production upon printed blanks he had made for that.. purpose, and further as follows:

“At any time during the period of 8 weeks from February 22 to April 22, 1924, I could have, within two hours, from the written date which I had on hand in the office of the Southern Cartridge Company, made up a complete statement showing the financial condition of the company. I did not keep the books up to date during this time because I had been instructed by Mr. Fulbright to devote my time to trying to keep the creditors of the company satisfied,, and I devoted the most of my time to that work.
I used my own car in doing this work. I paid for my own gasoline and spent all of my time every working day during the 8 weeks at this work. I went to see a great many people, including the Magnolia Paper Company, Houston Oil Terminal Company, Peden Iron & Steel Company, Wessendorf, Brazelton & Nelms, Heitman Hárdware Company, R. G. Dunn & Co., and others. It has been so long since that time that I do not remember all the people I went to see. I remember that Mr. Fulbright asked me to see John Meany, a lawyer, about some .labor accounts. Several of the employees of the Southern Cartridge Company, who had not been paid, had employed Mr. Meany to collect their claims, and he had prepared the papers to file s.uit on these claims. I explained to him that we were making arrangements to get a loan to take care of these claims. Mr. Sherman and I went to the State National Bank, when Mr. Fulbright was out of town, and negotiated a loan for $1,500 during this period of 8 weeks. On another occasion Mr. Sherman and I arranged with Mr. Cage of the Gulf State Bank for a loan from his bank. I do not remember what the amount of this loan was. It was made as an advance on sales which had already been made by the Southern Cartridge Company. During, this period of 8 weeks I also wrote a great many letters to the creditors of the company, at my home at night. I carried copies of these letters to the office of the Southern Cartridge Company and placed them in the files as I wrote -them.”

He further testified that he had been an expert accountant and bookkeeper for 15 or 16 years, during which time he had been in association with many other accountants and bookkeepers and knew the business, as well'as what such services were worth, adding the following:

“I know what the reasonable value of the services of an expert accountant and bookkeeper, such as I have testified that I performed for the Southern Cartridge Company from February 22, 1924, to April 12, 1924, .was at the time I performed them. The reasonable value of such services at that time was $70 per week.”

We think this testimony alone was sufficient to support the recovery here ; it. will be noted that, after first stating that Mr. Fulbright, the president of the company, instructed him to devote his time during the period involved to trying to pacify' the company’s creditors, he detailed the services he rendered in that respect, and there is nothing anywhere in the record to indicate that as such they were not properly classified as being in the circumstances such services as an expert accountant and bookkeeper should render. There is nothing to the contrary either upon whether or not such services did come under the duties of an expert accountant and bookkeeper in his situation, or as to whether or not their reasonable value was what he put them ah In a situation of this sort the jury could not be properly said to have known as much about such matters as he did.

It is deemed unnecessary to discuss the other questions raised, as we think the trial court’s judgment should be affirmed under the conclusions stated; that order will be entered.

Affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HICKMAN, J. HICKMAN, C. J.

text:
    HALL et al. v. FIRST STATE BANK OF HAWLEY.
    (No. 391.)
    Court of Civil Appeals of Texas. Eastland.
    Jan. 20, 1928.
    Rehearing Granted March 9, 1928.
    1. Appeal and error <@=>931 (I)— Reviewing court presumes in support of judgment that trial court resolved issues of fact in favor of prevailing party.
    Reviewing court must presume, in support of the judgment appealed from, that trial court resolved issues of fact in favor of prevailing party.
    2. Novation <@=>13 — Novation is question of fact.
    Novation is a question of fast, to he passed on by the court or jury.
    3. Novation <@=>12 — Burden is on one asserting novation to prove it.
    Burden is on one asserting substitution of new agreement or new debtor to prove that novation actually took place.
    4. Bills and notes <@=>499 — Payee’s retention of both original and renewal note created no presumption that renewal note was taken as payment.
    In suit on original note, in which maker interposed defense of novation by giving renewal note, no presumption arose that renewal note was taken as payment of the original by mere fact that pa£ee retained both original note and renewal note.
    5. Bills and notes <@=>430 — Where agreement to surrender original note was based on condition that indorser also sign renewal note, original note remained effective until indorser’s signature was secured.
    "Where agreement to cancel and surrender original note to maker in return for renewal note was based on condition that person indorsing original note would likewise indorse the new note, taking of new note did not constitute payment of the old until the condition of indorsement was fulfilled, and during such time original note remained effective.
    6. Bills and notes <⅞=499 — It was presumed bank taking renewal note did not intend voluntarily and without consideration to release indorser on old note.
    It was presumed that bank taking renewal note from maker did not intend voluntarily and without consideration to release indorser on original note from his obligation.
    7." Novation <@=>12 — Evidence of failure of original indorser to sign renewal note held to sustain finding that bank’s retention thereof and promise to return original note did not constitute novation.
    In hank’s suit on original note, in which maker’s defense was that renewal note had been taken and retained as payment, under letter from bank’s cashier stating he would return canceled note on execution of the new instrument, evidence indicating unfulfilled condition that indorser on original note also sign new note held to sustain finding that transaction did not amount to a novation.
    8. Bills and notes <@=>254 — Suit need not be brought to fix indorser’s liability, where notice of dishonor is given (Rev. St. 1925, art. 566).
    Where liability of indorser is fixed by notice of dishonor, Rev. St. 1925, art. 566, permitting commencement of suit to fix indorser’s liability before second term of court after cause of action accrues, does not apply, since statute merely provides additional method of fixing indorser’s liability.
    9. Bills and notes <@=>254 — Suit against indorser at first or second term after maturity of note held not essential, where Indorser waived grace and protest (Rev. "St. 1925, art. 5938, §§ 109, III, 118; art. 566).
    ■ Indorsement of note “waiving grace and protest” held express waiver, not only of protest, but also of notice, under Rev. St. 1925, art. 5938, §§ 109, 111, 118, under which bringing of suit at first or second term of court after maturity, as provided by article 566, was not essential to fix indorser’s liability.
    19. Bills and notes <@=>419 — Person secondarily liable on instrument, if actually notified of dishonor, cannot complain of form of notice' (Rev. St. 1925, art. 5938, §§ 96, 108).
    Where person secondarily liable on instrument receives actual notice of dishonor, he cannot complain of form in which notice was given, under Rev. St. 1925, art. 5938, §§ 96,108.
    11. Bills and notes <@=>254— Indorser, who was cashier of bank holding note at maturity, was conclusively presumed to receive notice of dishonor, rendering suit to fix liability unnecessary (Rev. St. 1925, art. 5938, §§ 96, 108, art. 566).
    Where, at time of maturity of note, bank was holder thereof, and indorser was cashier of bank charged with duty of collecting the note, it was conclusively presumed that indorser had notice of dishonor, and liability was thus fixed, under Rev. St. 1925, art. 5938, §§ 96, 108, rendering it unnecessary to bring suit against him to fix liability under article 566.
    12. Bills and notes <@=>495 — In suit on note, In-dorsement was presumed to have been given for valuable consideration, where want or failure of consideration was not pleaded (Rev. St. 1925, art. 5933, § 24; art. 2910).
    In suit on note, in which failure or want of consideration was not pleaded, it was presumed that indorsement was given for a valuable consideration, under Rev. St. 1925, art. 5933, § 24, and article 2010.
    On Rehearing. .
    13. Bills, and notes <@=>444 — Surrender of maker’s renewal note or proof that it had1 been destroyed and had not been negotiated held condition precedent to recovery on original note.
    Where renewal note had been given, plaintiff was under duty, as condition precedent to its right to recover on the original note, to surrender the renewal note executed by defendant or to make proof that it had been destroyed and had not been negotiated.
    14. Pleading <§^387 — Judgment must rest on testimony competent under pleadings.
    Judgment must rest on competent testimony which should have sufficient basis in pleading.
    15. Banks and banking <§==>109(3)— Authority of bank’s cashier to accept something other than money in payment of note is not presumed.
    While authority of cashier to discharge note on its payment in money may be presumed, presumption of authority to give discharge by accepting something other than money in payment does not necessarily follow.
    16. Banks and banking <§=>! 18 — Where defendants’ pleadings in bank’s suit on original note failed to allege that cashier’s agreement for taking renewal note in payment was in writing, defendarits had burden to prove cashier’s authority.
    In bank’s suit on note, in which defendants alleged contract with bank acting by its cashier, whereby renewal note was to be taken in payment and discharge of original note sued on, authority of cashier to enter- into novation agreement was not presumed, but defendants •had burden of proving his authority, where pleadings failed to show that novation contract was in writing, though no plea of want of authority was filed by plaintiff.
    Appeal from District Court, Jones County; W. R. Chapman, Judge. .
    Action by the First State Bank of Hawley against W. F. Hall and another: Judgment for plaintiff, and defendants appeal.
    Reversed and remanded for new trial.
    A. J. Smith, Brooks & Robinson, and Smith & Smith, all of Anson, for appellants.
    Thomas, Pope & Shapard, of Anson, for ap-pellee.
   HICKMAN, J.

The appeal is from a judgment in favor of appellee and against appellant Hall as maker and appellant Chorn as indorser of a promissory note. The case was tried before the court without the aid of a jury, and no findings of fact and conclusions of law appear in the record. The appellant Hall pleaded as a defense to the note that same had been novated, the claim of novation being based upon the following allegations in his answer: That, after the note sued upon became due, at the request and suggestion of the cashier of the bank, he executed and delivered to the bank his renewal note in lieu of the note sued upon, and that, in consideration of the execution of said renewal note, the bank contracted, promised, and agr'eed with him that it would deliver and surrender to him the note sued upon; that he relied upon the promise and agreement, and executed and delivered to said bank a renewal note; that the bank has never returned to him the renewal note, but same is still an outstanding obligation against him.

The appellant Chorn pleaded novation, based upon the same allegations, in substance, as those contained in the answer of the appellant Hall, and, in addition, pleaded that he was not primarily liable on said note, but that, if liable at all, his liability was that of indorser; that the ap-pellee bank did not bring suit upon the note at the first term of the district court to which suit could have been brought, "nor at the second term of said court; ' that said note was not sued upon until more than one yekr after it became due and payable; and that, on account of the bank’s failure to bring suit at either the first or second term of the district court after t£e maturity of said note, said appellant had been discharged from liability.

The facts disclosed in the record on the question of novation are substantially that, at the time the note was executed, as well as at the time it became due, and for several months thereafter, the appellant Chorn was cashier of the appellee bank. The appellant Hall was a tenant on a farm belonging to appellant Chorn. W. R. Hedrick became cashier of appellee bank four or five months after the maturity of the note. His testimony would support the conclusion that he discussed this note with both appellants, and refused to accept a renewal thereof signed by appellant Hall alone; that appellant Chorn agreed with him to sign a renewal note; that he talked to Chorn more than one time regarding the matter. Thereafter, and on July 31, 1926, Hedrick, the cashier, sent to appellant Hall through the mail the following letter:

“Mr. W. F. Hall, Hawley, Tex. — Dear Sir: Hereto attached note for ($1,093.26) this is to take up note of yours and Mr. J. H. Chorn’s for ($996.66) due Oct. 1st, 1925.
“Please sign and return to us in the enclosed envelope and I will return to you canceled note for ($996.66).
“Yours truly, W. R. Hedrick, Cashier.”

Appellant Hall executed the renewal note therein inclosed, and sent it back to the bank with his signature affixed. Hedrick testified that he thereupon mailed the note to appellant Chorn for his signature, but that same was returned to him through the mail unsigned. He thereupon delivered the renewal note to his attorney, who later filed suit on the original note.

Appellant Chorn denied the receipt of the renewal note; but we must presume, in support of the judgment, that the trial court resolved the issues of fact in favor of the bank and against appellants. We do not believe the evidence establishes a novation. Novation is a question of fact ,to be passed upon by the court or jury. The burden is upon the one asserting no-vation to proye it. No'witness testified in tliis case that there was ever an agreement to substitute the note of appellant Hall, without the indorsement of appellant Ohorn, for the note sued upon in this case. The only evidence of such an agreement is the letter hereinabove copied and the fact that the renewal note executed by appellant Hall was not returned to him. The retention by appellee of the original note and of the renewal note creates no presumption that the renewal note was taken as payment of the original. Darby et al. v. Farmers’ State Bank of Barnet (Tex. Civ. App.) 253 S. W. 341, and authorities there cited.

Neither do we think the letter alone is sufficient to establish a contract of no.-vation. The testimony would support the finding that the renewal note was to be accepted in payment of the original upon condition that same be indorsed by appellant Ohorn. The agreement being based upon that condition, it could not become effective until the condition was fulfilled. The letter discloses that the note for which the renewal was executed by appellant Hall was the note of Hall and Ohorn. The agreement being that both should execute the renewal before same would be excepted by the bank, according to the testimony of appellee’s witnesses, we do not believe that the letter evidences any intention to change this agreement and to release Ohorn from liability. The presumption would certainly obtain that the bank did not intend voluntarily and without consideration to release Ohorn from this obligation, and we do not believe the letter indicates such intention. The evidence supports the judgment of the trial court in •favor of appellee on the issue of novation, and the assignments of appellants presenting this question will be overruled.

It is urged by appellants that appellee was entitled to no judgment, because it did not tender back to appellant Hall the renewal note executed by him, or properly account for the same. The contention is made that such note may have been negotiated by the bank before maturity, and that appellant Hall may hereafter be compelled to pay it to an innocent holder thereof. The evidence of appellee on this issue is that, after appellant Ohorn returned the note unsigned, the same was delivered to appellee’s attorney. That is our construction of the testimony of the witness Hedrick, who testified that “immediately after it came back unsigned I sent it tp you.” Evidently the appellee’s attorney who was conducting the examination of the witness was the person referred to as “you” in the testimony. We believe that appellee should have returned this note or accounted for it in a more definite manner, but have concluded that its failure so to do would constitute no defense to this suit. The only issue involved was the liability of appellants on the note in suit. Appellant Hall did not ask for the cancellation of the renewal note in his pleadings, and did not interrogate appellee’s witnesses to determine anything about the then ownership and possession of the renewal note. The evidence establishing the note in the hands of the appellee and its agent and attorneys at a time just prior to the institution of this suit, it will be presumed that there has been no transfer thereof, but that possession of said note is still with appellee. We cannot presume that appellee has negotiated a note which it had no lawful right to negotiate.

On the defense of the appellant Ohorn that he was discharged on account of the failure of the bank to bring suit on the note at the first or second term of the court after ,the maturity thereof, the facts are undisputed. They disclose that suit was brought to the third term of court after' maturity of the note. It is provided by article 566, R. S. 1925, in substance, that the holder of any promissory negotiable note may fix the liability of an indorser, without protest or notice, by bringing suit against the maker before the first.term of the court to which, suit can be brought after the right of action accrues, or before the second term with a showing of good cause for the delay. This article of the statute, in so far as the same covers the provisions above stated, was article 579 of the revision of 1911. That article was held to have been repealed by the Negotiable Instruments Act in an opinion by the Commission of Appeals in the case of First National Bank v. Lee County Cotton Oil Co., 274 S. W. 127, the opinion in that ease being rendered on June 27, 1925. The Revised Statutes of 1925 took effect on September 1, 1925, and re-enacted old article 579 as a part of article 566. The effect of re-enacting this article is not necessary for determination by us in the disposition of this case, as we view it, and we therefore express no opinion thereon. If the decision of the Supreme Court should be construed as holding that the re-enacted article is repealed, then obviously it furnishes no defense to appellant. But we are of the opinion that, conceding that, by bringing the provisions of this article forward in the revision of 1925, it was effectively revived, and is therefore a binding statute, it nevertheless furnishes no ground of defense to appellant. This article is cumulative. It provides a method of fixing the liability of an indorser where the note has not been protested or no notice of dishonor by nonpayment given. McCamant v. McCamant (Tex. Civ. App.) 203 S. W. 118.

Under the provisions of article 5938, § 118, of the Revised Statutes protest is not required, except in the case of foreign bills of exchange. By the provisions of other sections of this article, liability of an indorser may be fixed by notice of dishonor. Where liability is fixed in this manner, the provisions of article 566 with reference to the bringing of a suit would not apply. Suit is made necessary to fix liability only when no notice of dishonor has been given. By section 109 of article 5938 it is provided that notice of dishonor may be waived, either expressly or impliedly. By section 111 of the same article a waiver' of protest, whether in the case of a foreign bill of exchange or other negotiable instruments, is deemed to be a waiver, not only of a formal protest,.but also of presentment and notice of dishonor. The note in suit contains the words, “waiving grace and protest.” Under the provisions of the article above quoted, this was an express waiver, not only of protest, but of notice, and fixed the liability of the indorser, without the necessity of bringing a suit at the first or second term of court after maturity of the note.

But, independent of the waiver, the facts in this case establish that appellant Ohorn received notice of dishonor in accordance with the statutes. By section 96 of article 5938 it is.provided that the notice may ■be in writing or merely oral. By section 108 of the same article it is provided that, where the notice is actually received by the party within the time specified, it will be sufficient, though not sent in accordance with the requirements of the law. All of the provisions with reference to notice were enacted for the benefit of a person secondarily liable, and, if he actually receives notice, he cannot complain of the form thereof. The facts of this case show that, at the time this note matured, the appellant Ohorn was cashier of the appellee bank, charged with the duty of collecting this note. The duty rested upon him to notify himself that same was not paid, and we must presume conclusively against him that he did so notify himself. Otherwise we would be permitting him to profit by his own neglect. Appellant Ohorn having actually received notice of dishonor, his liability was fixed, and no suit against the maker was necessary to fix that liability.

The proposition is advanced in appellant Ohorn’s brief that there was no consideration for his indorsement of this note. The facts disclose that the note was indorsed long after-its delivery to, and acceptance by, the bank, and it is insisted that no consideration for such indorsement is disclosed in the record. We are unable to grant any relief on this account. It is provided in article 5933, § 24, R. S., that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value. By article 2010, R. S., it is provided that an answer setting up that a written instrument upon which a pleading is founded is without consideration, unless the truth of the pleadings appear of record, shall be verified by affidavit. Appellant’s answer did not attempt to plead a failure or want of consideration. As the note was introduced in evidence before the court, it contained the indorsement of appellant Chom. The law presumes that this indorsement was for a váluable consideration, and provides that, in order to be entitled to introduce evidence overcoming this presumption, a plea setting up the facts must be filed. In the absence of such plea, the assignment presenting this objection cannot be sustained.

Finding no reversible errors in the record, it is our order that the judgment of the trial court be affirmed.

On Rehearing.

HICKMAN, C. J.

Upon more mature consideration of this case on rehearing and by reason of a suggestion made by the new associate justice of this court, we have concluded, that we erred in our original opinion in our disposition of one of the questions there discussed. It is now our opinion that the duty rested upon appellee, as a condition precedent to its right of recovery on the note sued upon herein, to surrender, upon the trial of this cause, the renewal note executed by appellant Hall, or to make proof that same had been destroyed and had not been negotiated. This conclusion is supported by many authorities, including the Supreme Court of this state. Otto v. Halff & Bro., 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; 2 Daniel on Negotiable Instruments (6th Ed.) § 1272, p. 1434; Jackson v. Brown, 102 Ga. 87, 29 S. E. 149, 66 Am. St. Rep. 156; Keyser v. Hinkle et al., 127 Mo. App. 62, 106 S. W. 98.

In .the last ease cited the court, in discussing a situation similar to the one presented in this case, uses the following language:

“The only condition imposed on him by law was to account for the renewal note in order that defendant might no't be compelled to pay the same debt twice.”

In the case of Jackson v. Brown, supra, it is stated:

“It seems to be 'a well-established rule of law, that where a bill of exchange'or negotiable note is taken for a prior debt, a party cannot recover upon the original consideration unless the bill or note is produced to be cancelled at the trial, or unless it appears that it cannot be enforced by a third person.”

In the case of Otto v. Halff & Bro., supra, our own Supreme Court states the rule in this language:

“If suit be brought upon the original con-, sideration, and the note be negotiable, the plaintiff must show that it has not been transferred and is lost or destroyed, or he must produce and surrender it.”

The evidence in this ease clearly brings it within the rnle above announced. It was the duty of appellee, who was plaintiff below, upon the trial of this cause to produce the renewal note executed by appellant Hall, or to properly account for same. Having failed to do so, it was not entitled to a judgment upon the original note, and for this error a reversal is ordered.

In view of another trial of this cause, we think it proper-to call attention to the state of the pleadings in order to avoid a possible error upon retrial. As disclosed, in the original opinion, appellants pleaded an express contract with appellee whereby the renewal note was to be taken and accepted by appellee in discharge of the note sued upon. They did not plead that such contract was in writing, but, in support of the pleading, introduced the letter copied in the original opinion. Parol evidence was introduced to establish the fact -that this letter did not embody the full terms of the contract between the parties, and that it was written through mistake. Grave doubts have arisen in the minds of some members of this court as to whether this parol evidence should have been considered, in the absence of a pleading attacking the written offer contained in the letter. ■ No assignments raise the question here of the sufficiency of the pleading to admit this proof or challenge the sufficiency of the evidence to support the verdict in this particular, but, in view of the well-established rule that a judgment must rest upon competent testimony, we think it proper to call attention to the fact that there is no pleading in this case as, a predicate for the oral testimony varying the terms of this letter. We do not determine whether such pleading was necessary, and do not decide the many questions of law suggested by the situation, because they are not properly raised, but we make the above suggestion to the end that the question may be simplified upon the next trial of this cause.

Were we to undertake to determine in the present state of the record the question of whether or not the letter and the renewal note completely evidence a payment and discharge of the note sued on, the case would have to be reversed and remanded , anyway, because we cannot say, as a matter of law, that Hedrick, the cashier, had authority to accept the new'note as payment and discharge of the old note. We may presume existence of the authority of such officer to discharge the note upon its payment in money. But it by no means follows that authority will be presumed to give such discharge by accepting something other than money in payment. First State Bank v. H. H. Lang, 55 Mont. 146, 174 P. 507, 9 A.L.R. 1139. Had the pleadings declared upon the letter as a part of the agreement claimed to be a novation, then no proof of the authority of the cashier would have been necessary, in the absence of a sworn plea of non est factum. But the pleadings gave no notice that a contract in writing was relied on, and no plea of want of authority was necessary to put upon defendants the burden of proving authority. Missouri State Life Insurance Co. v. Boles (Tex. Civ. App.) 288 S. W. 271; T. & P. Ry. Co. v. Byers Bros. (Tex. Civ. App.) 73 S. W. 427.

For the reasons indicated, the motion for rehearing will be granted; the judgment heretofore entered by this court in this cause will be set aside; the judgment of the trial court will be reversed, and the cause remanded for a new trial.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: COBBS, J.

text:
    GARCIA et ux. v. GARCIA et al.
    (No. 7937.)

    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1928.
    1. Husband andi wife <§=274(4) — Intervener alleging land in controversy was community property of deceased mother and defendant held properly allowed to amend pleading to show she had half interest.
    In action of trespass to try title, intprvener claiming half of property on ground that it was acquired by defendant during his first marriage and was community property of her deceased mother and defendant, who was her father, held properly allowed to amend pleading pending trial to show that her real interest was one-half of land instead of one-fourth as shown by conveyance from father.
    On Motion for Eehearing.
    2. Courts <§==>106 — Reviewing court need not consider each assignment separately, but must decide all issues properly presented (Rev. St. 1925, arts. 1873, 1876).
    Beviewing court is not required', under Eev. St. 1925, art. 1876, to pass on and consider each assignment separately, but is only required to decide all issues presented by proper assignments and announce in writing their conclusions, under article 1873.
    3. Trial <§=>260(1) — Where charges given covered all questions, refusal of further charges held not error.
    Where trial court covered by charges given all questions fairly raised that should have been considered by jury, there was no error in refusing to further charge ás requested.
    4. Husband and wife'<§=>274(4) — In trespass to. try title, defendant’s daughter by former marriage claiming property was community property of deceased mother and defendhnt was properly allowed to intervene.
    In action of trespass to try title, it was not error to allow daughter of defendant by former marriage to intervene, claiming half of property on ground that it was community property of deceased mother and defendant.

      5. Pleading <§==236(1)— Amendment of pleadings is within trial court’s discretion.
    Right to amend pleadings is within sound discretion of trial court, and ruling will not be disturbed unless that discretion has been shown to be abused.
    6. Husband and wife <§=274(l) — Daughter of defendant by prior marriage who was sole heir of deceased mother held, as matter of law,' entitled to half of property purchased with community funds.
    In trespass to try title, daughter of defendant by prior marriage held, as matter of law, entitled to half of land under uncontradicted evidence showing that she was sole heir of deceased mother and that property in suit.was purchased with community funds.
    7. Husband and wife <§==274(4) — 'Where defendant’s daughter intervened claiming half of property as purchased with community funds of deceased mother and defendant, deed from defendants purporting to convey fourth interest held admissible, notwithstanding recitals as to intervener’s interest. -
    In trespass to try title in which defendant’s daughter by prior marriage intervened, claiming half of property on ground that it was purchased with community funds of deceased-mother and defendant, deed from defendants to in-tervener purporting to convey one-fourth of premises held admissible, notwithstanding recitals as to intervener’s interest and character of funds used by father in purchasing premises; there being no showing that it was given or accepted in full settlement of her interest.
    8. Husband and wife <§=274(l) — Daughter inherited deceased mother’s half share of community property, and no conveyance was necessary.
    Where property was purchased with community funds, daughter who was sole heir of deceased mother inherited mother’s one-half share of estate, and no conveyance was necessary to pass such estate to her.
    9. Husband and wife <§=>274(1) — After wife’s death, husband handled community estate as trustee with respect to half interest .daughter inherited.
    After death of wife, husband, handled community estate as trustee for daughter who was sole heir of deceased mother with respect to one-half interest inherited by her, and he was not authorized to profit for himself in dealing therewith; daughter being entitled to all advantages of increase of investment.
    10. Appeal and error <§=820 — Appellate court must determine whether case was properly presented and fairly tried.
    Eirst duty of appellate court, aside from upholding law, is to determine whether case has been properly presented and fairly tried according to law.
    11. Appeal and error <§=999(3) — In trespass to try title, issue of plaintiff’s fraud in' acquiring deed held settled by judgment based on jury’s verdict.
    In action of trespass to try title in which defendant in cross-action alleged plaintiff obtained deed to property by false representations, issue of plaintiff’s fraud held settled- by judgment based on jury’s verdict, and reviewing court must follow it.
    Appeal from District Court, Webb County; J. E. Mullally, Judge.
    Action by Melquíades Garcia and another against Pilar Garcia and wife, in which, defendants filed a cross-action, and in which Margarita Garcia de .Arrieta intervened. Judgment for intervener and against defendants on their cross-action, and defendants appeal from that part of the judgment denying recovery on their cross-action.
    Affirmed.
    Hicks, Hicks, Dickson & Bobbitt and Tale Hicks, all of Laredo-, for appellants.
    Mann, Neel & Mann and Hamilton & Rector, all of Laredo, for appellee.

      Rehearing denied March 28, 1928.

   COBBS, J.

This suit was filed by Mel-

quíades Garcia, one of the appellees, in the district court of Webb county, Tex., on the 19th day of August, 1925, in the form of trespass to try title against appellants Pilar Garcia and wife, Pilar U. de Garcia, to recover certain real property located in the city of' Laredo, Webb county, Tex., constituting the homestead of appellants.

Appellants answered by general denial and a plea of not guilty, and in addition thereto, by way of cross-action, sued to recover of plaintiff the property in question on the ground that the deed from them to appellee Melquíades Garcia, dated November 17, 1910, under which the latter claimed title to the property was made without consideration for the benefit of appellants and with the understanding that the property would be recon-veyed to them by the grantee upon demand; and appellants further alleged that the deed was procured by appellee from them by fraudulent representation and asked that the deed be canceled, and that they recover of plaintiff the property in question, and that title to the same be quieted. Before the case came to trial, appellee Margarita Garcia de Arrieta, the only child of appellant Pilar Garcia by a former marriage, with leave of court intervened and alleged her right to recover her undivided one-half interest in the property on the ground that the property had been acquired by appellant Pilar Garcia during his first marriage and was the community property of her father, Pilar Garcia, and her mother, Genoveva Guitierrez- de Garcia, then deceased.

Appellants admitted the right of intervener to recover an undivided one-half interest in the property, and appellee Melquíades Garcia sought to have plea of intervention stricken out by a motion which was overruled, and ap-pellee Melquíades Garcia answered the plea of intervention by general denial and a plea of not guilty. To the cross-action of defendants, appellee Melquíades Garcia answered by general denial and a plea of not guilty.

The ease was tried before a jury, and the court instructed the jury to return a verdict in favor of intervener for an undivided one-half interest in the property. The jury returned a verdict in favor of intervener for an undivided one-half interest in the property and against appellants on their cross-action. The verdict was received and judgment rendered in accordance therewith.

It will be seen that appellants do not question the judgment in so far as the intervener Margarita Garcia de Arrieta is concerned, but do so as to the other two appellees.

The controversy between Pilar Garcia and his wife against Garcia is that in this suit they seek, by way of cross answer, to recover of Melquíades Garcia, the title to the land in controversy, because the conveyance they made to him was obtained by false representations. In their cross-action the defendants alleged:

“Plaintiff, who is a brother of this defendant, approached him and informed him that he, plaintiff, had just learned from an attorney in the city of Laredo that the account of Landa & Sons had been placed in his hands for collection, and that said attorney had told plaintiff that he, said attorney, was immediately going to attach, levy upon, and sell said lot 9, in said block SI, to satisfy said claim, and plaintiff told defendant that this could be lawfully done under the laws of Texas, and also told this defendant that the only way to save said lot for defendant and family from such sale was for defendant and wife to convey said lot to plaintiff by deed, and that plaintiff would secretly hold the title to said property for this defendant and his said wife and thus prevent the said property from being subjected to the debt of the said Landa & Sons; that plaintiff further stated to this defendant at said time that said deed would not convey any title to plaintiff as no consideration was to be paid' by him to defendant therefor, and further that said deed would not be valid conveyance until it was recorded, but that by the plan outlined the said property would be in plaintiff’s name and placed beyond the said threatened attachment and levy, and that in any event plaintiff would hold the same for this defendant until said claim could be adjusted by defendant, and that he, plaintiff, would never claim said property as against defendant, but would reconvey the same to this defendant and wife.”

Among other things, Pilar Garcia testified as follows: '

“Melquíades told me that he was not going to record the deed if I had an understanding with Mr. Hamilton. Melquíades told me that if he would record the deed, that was to preserve the same for me, and then he would reeonvey it, make another one. He told me that if it was recorded, then the house was his, but then he could give another deed to me. He told me that if the deed was not recorded it would have no value. I believed that statement. If I had not believed that statement, I would not have executed the deed. My brother told me to extend or execute the deed, and we did not talk about the consideration; he told me to put $7,000, there, if that is called the consideration. My brother did not pay me any money at the time. I have absolutely never received any consideration for the execution of that deed at all. Neither has my wife received any.
“I believed that my homestead could be taken for this debt. I thought it could. I would not have executed this deed if I had not so thought.”

There are various allegations of fraud, but the foregoing reflects the issue of fraud, sufficient for this discussion.

The appellees discuss at length various supposed rules with reference to briefing, which appellants violated, which seem well taken. There is no index to the brief, nor list of authorities cited, as the rules require, nor does the brief contain any sufficient assignments of error.

In regard to the objection urged to the court’s general charge, we think it without merit, for it is clearly presented in a fair and full way and adequately stating all the issues in the case.

The proof clearly established intervener’s right and interest as being one-half of the entire community estate of her father and deceased mother. It was a legal title, acquired by inheritance, which under the law she had a lawful right to sue for and recover and she could not be deprived of that right, because the conveyance to her by her father,. shortly before this suit was instituted, was for one-fourth interest instead of a one-half interest. That was an obvious mistake and could not reduce what the law gave her. It required no conveyance whatever to fix her interest. Her interest in the community estate was fixed by law.

It was not error in the court to permit intervener to amend her pleading, pending the trial, so as to show that her real interest is one-half of the whole instead of one-fourth. This her father did not dispute, but acquiesced in. We think the evidence showed with sufficient conelusiveness what property of her deceased mother’s estate was used by her father in the purchase of the premises. Nor was it error to instruct a verdict for one-half of the improvements placed upon said premises after the second marriage. If not disputed, still they were sufficiently established by testimony.

The court did not err in permitting the in-tervener to introduce and read to the jury a deed executed by the defendants to her, bearing date the 21st day of June, 1927, and recorded on the 22d day of June, 1927, in which they purported to convey to her an un-' divided one-fourth of the premises in controversy, the objection being to the recitals therein as to her interest in said estate and the character of the funds that were used by her father in the purchase of said premises, because the same were hearsay and inadmissible against the plaintiff.

Another thing, this could not have affected ■Melquíades Garcia injuriously because hie knew precisely the interest of intervener, his niece, in her mother’s estate, and all the facts in regard to the matter. If it was error, certainly it was harmless.

We have carefully read and considered the propositions and assignments of all the parties and overrule the same. The case has been fairly tried and disposed of, and, as substantial justice has been administered, the judgment is affirmed.

On Motion for Rehearing.

All the appellants -have filed motions for rehearing. The motion filed for Pilar Garcia and wife consists of 15 pages and 16 paragraphs, and includes the same grounds set up in the brief which were the same grounds stated in the motion for a new trial below and are the same here.

In this discussion we will dispose of appellants’ tenth and eleventh grounds first, because appellants have devoted so much space and time in discussing and in charging that we have refused “to pass on and consider each assignment separately” as required by article 1876, R. S. Such is not required by the statute. The Court of Civil Appeals is required to only “decide all issues presented * * * by proper assignments * * * and announce in writing their conclusions so found.”

Article 1873 provides “within thirty days after the decision of the case” the court “shall make and file a conclusion of fact and law upon each material point assigned as error in that court. * * . Such findings of fact and conclusions of law may be included in the opinion of the court.” That has been done here by setting out the evidence on the point discussed. The statute never required, nor is there, any decision that supports appellants’ contention. Certainly the case cited by appellant and relied upon with great insistence does not so hold. In that case (Galveston, H. & S. A. Ry. Co. v. Hartford Eire Ins. Co. [Tex. Civ. App.] 220 S. W. 785) the court says:

“We thought when the opinion was written, and think now, that this is a useless waste of time, because, as we understand the rules and holdings of the Supreme Court, it would, if writ of error was granted, pass upon all questions, unless it be one requiring a finding of fact by this court. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242.
“However, we have concluded that under the statute we are required to specifically pass upon each assignment of error, so we give the following reasons for overruling the appellant’s other 31 assignments.”

In Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242, Chief Justice Gaines, writing the opinion for the court, said:

“The judgment was affirmed without considering the case upon its merits, for the reasons that no error was assigned. When we granted the writ of error, we were of opinion that the court erred in refusing to consider the question submitted, and were of the impression that it would be our duty to reverse the judgment and remand the cause to that court, to the end that they might pass upon the merits of the case in the first instance. We now think we were mistaken in the latter conclusion. The court of Civil Appeals not having dismissed the appeal, but having affirmed the judgment, we are of opinion that we have jurisdiction over the whole case, and that, if the judgment should have been affirmed upon its merits, it is our duty to affirm it here, whether an assignment of error was necessary or not.”

The opinion shows that we did just what the statute requires of us to do, “decide all issues presented * * * by proper assignments of error.” Our opinion also shows we made conclusions of law generally upon each material point assigned without consecutively naming the assignment passed on, without setting out the evidence, except when necessary, which we did, to determine upon the correctness of some ruling of the court.

If appellate courts, in passing upon all the numerous prolix and involved assignments and propositions presented and urged in many cases without regard to their merit, should discuss them, we fear it would tend to keep the courts busy writing lengthy, so-called unnecessary opinions which would increase the law book industry and fill many volumes. They would not be “lucid, in order, solid, and at hand,” nor would they be “mul-tumi in parvo.”

The appellants broadly say this court is in conflict with other named decisions of other courts. By an examination of the cited authorities we fail to find any conflict.

If any conflicts exist, it is only in appellant’s mind for it does not arise from any statement or holding by us pertinent to any issue decided here, or'decided by any appellate court upon similar facts, nor in the proper application of the law adverse to this. But the learned counsel seems to “shy” more at the brevity of the opinion rather than at anything else, forgetting for the time “that brevity is the soul of wit,” and has placed a crown of thorns on this court by its criticism.

We meant what we said in the-final conclusion of the opinion, that so displeases appellants, that we “decided all issues presented” and found that the case was fairly tried below.

We very carefully read and considered each of appellants’ assignments, brief, and argument, for errors in the first place. We thought then, and now are doubly convinced, that the trial court covered by its charges all the questions fairly raised that should have been considered by the jury, and, as that was done, there was no error in refusing to further charge the jury as requested by appellants in tlie several issues presented by them.

■ All tbe issues of fraud and every other material question that was raised by tbe pleading or proof was submitted tó tbe jury.

There was no error committed in permitting Margarita Garcia de Arrieta and her husband to intervene because the evidence showed that the lot involved in the controversy was purchased with proceeds and from the increase of funds belonging to him and to his deceased wife, which entitled the inter-vener at law as an heir to her undivided one-half interest in the property in said suit.

The right to amend pleadings is within the fair and rightful and sound discretion of the trial court, and the ruling will not be disturbed unless that discretion has been 'shown to be abused. The court properly refused plaintiffs’ request for an instructed verdict, because it was sufficiently shown that the property in this suit was purchased with funds arising from the continuation of the grocery business owned by Pilar Garcia and ■his first wife, intervener’s mother, and continued in his possession and managed by him for many years with the community funds or property without any division thereof.

Mrs. Gonzales Arrieta was entitled to an undivided one-half interest under the law and as shown by the undisputed evidence. Wherefore, the uncontradicted evidence showing the intervener to be the sole heir of her deceased mother and entitled to an undivided one-half of the estate, it was not error to instruct a verdict for her.

There was never any settlement of the estate, and the business was continued with the property in question by her father, the survivor of the community estate; therefore she was entitled under the undisputed evidence to the instruction.

The deed in question was properly admitted, and it does not appear by any evidence that it was given or accepted in full settlement of her interest in said lot and improvements. Under the law she inherited her mother’s one-half share of the estate, and no conveyance was necessary to pass to her what she inherited and was entitled to.

The testimony showed- that intervener was an heir, and therefore under the law she inherited the one-half of the estate being her mother’s share, as she was the only child, whether you call it an equitable interest or a legal title, the effect is the same as the suit is maintainable under either theory, whether as an action of law or in equity. In this state the result would be the same. In view of our statute vesting a legal title to the heir in community estate of her deceased parent, we incline to the statement made in our opinion, challenged by appellants as not correct who insist that it did not cast a legal title thereto. See the point expressly decided in Sandoval v. Priest, 210 P. 814,, 127 C. C. A. 364.

A so-called equitable title is often a misnomer and is not a title, but a mere right in the party to whom it belongs to have the legal title transferred to him. But when the title is vested directly by- the statute as it is here by the death of the survivor of the community, no equity or equitable proceeding is necessary to establish or to transfer the title. The statute vests the title in the heir and divests the survivor in community of all but one-half of the estate. But the nature and character of the title is not important here.

Pilar Garcia, the survivor, after the death of the wife handled the community estate as a trustee, the relation imposed upon him by law, and he was not authorized to profit to himself in dealing therewith, but she was entitled to all advantages of the increase of investment of funds arising from the community estate.

The court did not err in allowing the inter-vener to file a trial amendment so that she would be entitled to prove and recover the interest she was shown entitled to inherit under the law and the evidence. However, in respect to handling the property and making changes and new investments, the relation of trust and trustee continued, and a resulting trust was created in favor of intervener for whom appellant held the legal title.

We have again separately examined each assignment and proposition, and, without discussing them at length separately herein, but considered in group, we reach the conclusion that they fail to show any substantial error committed by the court, and. this also applies to the motion for a rehearing.

Because of the great respect we have for the learning and high character and integrity of appellants’ counsel, who so earnestly insist that we have not given that consideration of the ease we should have, we have again gone over the entire record, briefs, and argument of counsel, and have reached the same conclusion. The opinion shows that we considered and decided every question raised fully, and no lengthy discussion would have been worth while. Clearly, appellant has a misconception of what our duty is under the rules governing the procedure for Courts of Civil Appeals. The first’ duty of an appellate court, aside from upholding the law, is to determine whether a case has been properly presented and fairly tried and, as said by the lamented Chief Justice Roberts, “according to law,” and within those rules. We think, as first said, substantial justice has been administered.

We cannot take into consideration, without substantial proof and a jury finding thereon, whether one brother has swindled the other or not, whatever we may think about it. That issue was- settled by the judgment of the trial court upon evidence. We have to follow the judgment of the court based upon the jury’s verdict that no fraud has been established. It may be likely, but the fraud was not established.

Nothing new has been set up in the motion for a rehearing that has not been heretofore presented, and the motion is overruled.

In respect to the motion for a rehearing by Melquíades Garcia, we have also examined the record very carefully, have decided all issues presented, and, finding nothing new set up that we have not passed on and considered, that motion is likewise also overruled.

Therefore both motions for a rehearing are overruled.
      <§=>For other cases see same topic and KEY-NUMBER in all Kéy-Numbered Digests and Indexes

      ^=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes