author: CALHOUN, J. EATTIMORE, J.

text:
    Ex parte NEELEY.
    No. 14434.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    State’s Rehearing Denied Oct. 21, 1931.

      A. A. Dawson, of Canton, for appellant.
    Paul H. Stanford, Dist. Atty., of Canton, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

This is an appeal from an order refusing to discharge the relator upon writ of habeas corpus. The relator was convicted under article 1442b, Acts of 1929, Forty-First Legislature, page 247, chapter 108, § 1 (Vernon’s Ann. P. C. art. 1442b), wherein the theft of chickens was made a felony, regardless of the penalty assessed. On the 2d day of Febru- . ary, 1931, relator was convicted in three cases in the district court of Van Zandt county of a felony, to wit, the theft of chickens, and his punishment assessed at a fine of $50 in each case. Sentence was pronounced on the 2d day of February, 1931. On said day he was placed in jail. He sought release by ha-beas corpus proceedings before the judge of the court in which he was convicted, and, from an order remanding him, he prosecutes this appeal.

There seems to be no contention in this ease but that the relator has been incarcerated in jail under the sentences imposed upon him by the court a sufficient length of time to satisfy the fines imposed, but not the costs, amounting to $621, and on the hearing relator was remanded to the custody of the sheriff until such time as the costs accrued in the three cases were fully paid and satisfied. The record shows that all the costs in the three cases, to which appellant pleaded guilty, havte been fully paid by the state and under the record the only question presented to this court is the question as to whether or not a person convicted of a felony and whose punishment is assessed at a fine and who has served sufficient length of time in jail to discharge the full amount of the fine against him, can be held in jail at a credit rate of $1 per day to satisfy the costs or any part thereof, after all the costs incurred have been paid in full by the state.

Article 781a, Acts of 1929, Forty-First Legislature, page 236, chapter 101, § 1 (Vernon’s Ann. O. O. P. art. 781a), provides: “When a person is convicted of a felony, and the punishment assessed is only a fine or a term in jail, or both, the judgment may be satisfied in the same manner as a conviction for a misdemeanor is by law satisfied.”

Prior to the enactment of said statute, there was no statute providing how a person convicted of a felony and his punishment assessed at a fine only could satisfy said fine, if he was unable to pay the same.

Under the record in this case and the decisions of this court, we deem it unnecessary to discuss said statute and the effect thereof, because it is conceded that the fines have been satisfied and the detention of the relator is only for the costs, and the same rules as to the satisfaction of the costs would apply whether the relator had been indicted for a felony and convicted of a misdemeanor, or whether he was indicted for a felony and convicted of a felony, and a fine alone imposed.

. Article 793, C. O. P., provides: “When a defendant is convicted of a misdemeanor and his punishment is assessed at a pecuniary fine, if he is unable to pay the fine and costs adjudged against him, he may for such time as will satisfy the judgment be put to work in the workhouse, or on the county farm, or public improvements of the county, as provided in the succeeding article, or if there be no such workhouse, farm or improvements, ho shall be imprisoned in jail for a sufficient length of time to discharge the full amount of fine and costs adjudged against him; rating such labor or imprisonment at three dollars for each day thereof.”

The amendment to said article 793 (Acts 1927, 40th Leg., First Called Sess. p. 194, c. 68, § 1 [Vernon’s Ann. C. C. P. art. 793]) reads as follows: “Amended by changing ‘three dollars’ in the last line to ‘one dollar,’ and adding ‘provided that the provisions of this Act shall not apply to Counties not having poor farms.’ ”

Article 1018, C. C. P., reads as follows: “When the defendant is convicted, the costs and fees paid by the State under this title shall be a charge against him, except when sentenced to death or to imprisonment for life, and when collected shall be paid into the State Treasury.”

In the case of Ex parte Hill, 111 Tex. Cr. R. 426, 15 S.W.(2d) 14, 15, the defendant was prosecuted for murder and was found guilty of aggravated assault and his punishment assessed at confinement in the county jail for 45 days and prior to the defendant’s conviction of a misdemeanor all costs were paid by the state except the sum of $87. The costs which had theretofore been paid-by the state while the felony charge was pending aggregated $1,-471.20. The judgment entered against appellant in that case recited that he was not only adjudged to serve the 45 days in the county jail, but that all costs of the prosecution, including the $1,471.20, were adjudged against him. The defendant’s contention in that case was that he could not be legally held in jail at the rate of $1 per day to satisfy the costs or any part thereof which had been previously paid by the state. Judge Hawkins, in rendering the opinion in that case, after an exhaustive review of all the statutes bearing upon the collection of costs in criminal cases, in construing article 1018, C. C. P., and considering said article in connection with article 793, used the following language: “We revert now to article 1018, c. C. P., and consider it in connection with article 793. Because in article 1018 it is said ‘the costs and fees paid hy the State * * * shall he a charge,’ it does not in our opinion follow hy any means that appellant can be held in jail at a credit rate of $1 per day to satisfy any part thereof. Article 1018 further provides that, when the costs and fees which are a ‘charge’ are ‘collected,’ they shall he paid into the state treasury. In no sense can the imprisonment in jail at a credit rate of $1 per day he regarded as a collection of the costs; at most it is only the satisfaction of costs in the manner provided where there is a failure to pay upon a misdemeanor conviction. Under such circumstances in no way could the state be reimbursed for costs theretofore paid by the state without the law required the county to make payment to the state on some basis for the time accused was held in jail. There is no such law.’ We conclude that the costs and fees already paid by the state cannot he collected save by execution as in civil suits under the provisions of article 791, C. C. P. The opinion in Ex parte Spiller [63 Tex. Cr. R. 93, 138 S. W. 1013], supra, upon this point, is expressly overruled.”

The record showing that the relator is being held for the costs alone, all of which have been fully paid by the state of Texas, and no other cause for holding him appearing, he will be ordered discharged, but this holding in no wise prevents issuance of an execution in behalf of the state for the costs paid by the state, enforceable against any property of the relator which may be under the law liable therefor.

The judgment remanding relator until all costs be paid is reversed, and he is ordered discharged.

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 Motion for Rehearing.

EATTIMORE, J.

The state, through the able district attorney of Yan Zandt county, files a motion for rehearing insisting that this appellant should be confined in the county jail of Van Zandt county until he has discharged, at a credit rate of $1 per day, the full amount of $621; same being the amount of costs in three felony eases in which the punishment was by fine and imprisonment. It is admitted in the statement of facts that the costs above referred to have all been paid by the state, but the contention now made seems in some way to insist that, by keeping this appellant confined in jail and allowing him a credit of $1 per day for 621 days, a situation will arise out of which the county should refund to the state said sum. Analysis of this proposition seems to make clear the fact that the county, if the contention of the state be correct, would have to care for and feed this appellant as an inmate of the county jail for practically two years, and in addition would have to then (from some fund in some-way pay into the state coffers the sum of $621. As said by this court in Ex parte Hill, 111 Tex. Cr. R. 426, 15 S.W.(2d) 14, there is no such law. It is also pointedly held in the ease just referred to that there is no provision made by which the county can be compelled to refund to the state what is supposed to represent costs paid out by the latter to officers, as earned by them in the prosecution of one who has been charged with a felony and convicted and punished by fine and imprisonment. We think the learned district attorney misapprehends the holding of this court in Overstreet v. State, 112 Tex. Cr. R. 182, 15 S.W.(2d) 1039. In. that ease, and the law of every case is controlled by the facts' before the court, we merely held that one on trial for a felony, which included a misdemeanor, who was convicted of such included misdemeanor upon the felony trial, could be compelled to pay the costs accruing upon that trial, by the ordinary means resorted to to collect costs in misdemeanor cases. It seems necessary for us to make a distinction between the costs incurred in other and former trials of such cases, which costs have already been paid by the state, and those costs accruing upon the trial which results in the misdemeanor conviction.

If in the instant case it was not admitted in the statement of facts that the costs amounting to $621 had already been paid by the state, a different legal question might be presented, but, there being such admission, the case is controlled by what we said in Ex parte Hill, supra. It might be possible that, if this appellant had been put upon trial and convicted and punished by fine and imprisonment, and the costs of that trial taxed against him, and no attempt made to collect them otherwise than through imprisonment in the county jail, this court might hold upon such as it did hold in the Ex parte Hill Case, supra.

Being of opinion that the case was properly decided originally, the state’s motion for rehearing will be overruled.


source: Caselaw Access Project

author: CALHOUN, J. LATTIMORE, J.

license: Public Domain

text:
    BELL v. STATE.
    No. 14179.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    Rehearing Denied Oct. 21, 1931.
    Carney & Carney, of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The conviction is for murder; punishment, three years in the penitentiary.

There was testimony to the effect that the appellant about one month prior to the homicide had been caught by the deceased in company with the wife of deceased under such circumstances as might show illegitimate relations existing between them. There was testimony also to the effect that, .at least a year prior to the killing, the appellant had been paying attention to the wife of the deceased, and that some difficulty had arisen between them. There was also testimony that a short time prior to the killing, appellant admitted to one of the witnesses that deceased had caught him with his wife, and in that conversation appellant told the witness that if he had had a gtm he would have killed the deceased because he had no right to come in on him. On the morning of the difficulty, appellant was going to his work, and the deceased intercepted him on the street. Appellant had something in his hand, wrapped up in a newspaper, which developed to be a pistol. When the appellant neared deceased, the deceased started towards him, one of the witnesses saying that he had a rock in his hand weighing about two pounds, another witness denying that fact, but stated that the deceased crossed over the street and intercepted appellant, whereupon the appellant told him that he did not want to have any trouble with him, and if he did not get back he would shoot him; whereupon, deceased replied for him to shoot and appellant fired three shots into the body of deceased, one while he was standing up, the second while in the act of falling, and the third after he had fallen to the ground. Appellant fled, throwing away the pistol, and was in a short distance caught by parties who witnessed the transaction.

Appellant contended that the killing was in self-defense.

The case was submitted to the jury under the law of murder with and without malice, and that of self-defense both from actual as well as apparent danger. Also a special charge was given telling the jury in effect that if the appellant was rendered incapable of cool reflection by reason of the actions and conduct of the deceased, and that while in such condition killed him, such would not be a malicious killing.

Several bills of exception are brought forward for review.

Bill of exception No. 1 complains of the action of the trial court in sustaining an objection to the testimony of J. 0. Roberts, upon the ground that said testimony was self-serving. The bill shows that the appellant tried to prove by the witness Roberts as to what the appellant stated to him on the day before the killing, when appellant came in from making a delivery, as to bis trying to avoid the deceased, and that the deceased was after him every time he got out. There is nothing in said bill which shows that the statement which appellant sought to have elicited was upon any transaction brought out by any evidence on behalf of the state. The conversation which appellant sought to prove by the witness Roberts appears from said bill to have been made the day before the homicide. It was held by this court in the ease of Woods v. State, 115 Tex. Cr. R. 373, 28 S.W.(2d) 554, where it was sought to be proven that the •appellant had told the officers the day before that deceased had threatened to take his life and asked them to give him protection, that said testimony was properly refused because it was self-serving, citing Hart v. State, 57 Tex. Cr. R. 21, 121 S. W. 508; Hardeman v. State, 61 Tex. Cr. R. 111, 133 S. W. 1056; Hardy v. State, 86 Tex. Cr. R. 515, 217 S. W. 939, 8 A.L.R. 1357; Watt v. State, 90 Tex. Cr. R. 447, 235 S. W. 888.

Bills of exception Nos. 2 and 3 complain of the action of the trial court in refusing to.allow them to prove by the same witness, Roberts, in surrebuttal the facts as set out in bill No. 1. The trial court qualified both of said bills substantially to the effect that the state’s attorney’s objection was not to the witness testifying to the facts sought to be elicited, but that the objection was to the manner and form of the question; that the court stated to the attorney for the appellant that he could elicit the evidence from the witness by proper question; that the attorney for the appellant thereupon summarily dismissed the witness from the stand and said, “That’s all right. Let it go.” It is shown by said qualification that the trial court did not refuse to allow the appellant to prove what occurred in said conversation sought to be elicited, but that when the court sustained the objection to the form of the question asked, appellant’s attorney refused to pursue same any further.

It appears from bill of exception No. 4 that the state produced the witness Charlie Johnson, who testified on direct examination that he was a brother-in-law of appellant, and that it appeared from the testimony of appellant that said Charlie Johnson had married the sister of appellant, but that the said Charlie Johnson and appellant’s sister were separated; that in rebuttal to facts brought out by the defense that his wife had divorced him on certain grounds of cruel treatment alleged in her petition, which was exhibited by appellant on examination of the witness in this case and about which the witness was questioned by appellant on cross-examination ; that the said Charlie Johnson was allowed to testify in answer to question by the state that the reason that he and appellant’s sister were separated was because of improper relations between the appellant’s sister and another man, and because of immoral conditions prevailing in the home of appellant’s sister. Appellant objected to said testimony offered in rebuttal by the witness Charlie Johnson on the ground that it was immaterial and not binding on the appellant, that it was prejudicial, and that the state was seeking to impeach the appellant upon an immaterial matter, and that -the state was bound by appellant’s answer. It is shown by said bill of exception that the matter was gone into by the appellant, and that the state was offering in its rebuttal to show the reasons why the separation took place. Not enough of the surrounding facts and circumstances are stated to enable this court to determine the merits of the bill and the correctness of the ruling involved to show that the evidence was inadmissible and that the ruling was erroneous and hurtful to the cause of the appellant, which, is necessary in order to determine its admissibility or effect. The bill as presented does not show reversible error. See 4 Tex. Jur., §§ 216 and 217, and authorities there cited.

Bill of exception No. 5 shows that in rebuttal of matters brought out by defendant, concerning grounds on which the witness Charlie Johnson’s wife divorced him as alleged in her petition exhibited to and from which appellant questioned the witness Charlie Johnson in this case, that the state again placed the witness Charlie Johnson on the stand and he was allowed to testify in answer to questions by the state as follows:

“Q. Did you treat her brutally and curse and abuse her? A. No.
“Q. Did you threaten her life? A. No.”

Appellant objected upon the ground that it was immaterial and leading, which objection the court overruled. This bill is subject to the same criticism as bill No. 4. and in addition thereto there was no showing that the appellant was prejudiced by reason of the questions asked and the answers thereto. The permitting of leading questions improperly will not be reversible error, in the absence of a showing of prejudice thereby. Branch’s P. C., sec. 157; West v. State, 2 Tex. App. 474; Montgomery v. State, 4 Tex. App. 142; Graham v. State, 73 Tex. Or. R. 28, 163 S. W. 726, 728; Hill v. State, 76 Tex. Cr. R. 269, 173 S. W. 1922, 1024.

By bill of exception No. 6, appellant complains of the following statement made by the district attorney in his closing argument to the jury: “Gentlemen of the Jury, why didn’t the defendant bring negro character witnesses to tell the jury what kind of a character the defendant had?”

Appellant objected to this statement upon the ground that the issue raised by the argument of the district attorney was not raised in the open argument of the state to the jury, and that appellant’s counsel had no opportunity to reply to it. The trial court qualified said hill to the effect that the language complained of, used by the district attorney, was in response to, and invited hy, the argument of the attorney for the appellant to the jury concerning the number of white witnesses that had testified to the good -character of appellant. The defendant is not entitled to complain of improper argument of state’s counsel which is occasioned and justified by the argument of his own counsel. Branch’s P. C., sec. 363; Vann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Roberts v. State, 60 Tex. Cr. R. 112, 131 S. W. 321; Moore v. State, 65 Tex. Cr. R. 453, 144 S. W. 598, 603; Dickson v. State, 74 Tex. Cr. R. 495, 168 S. W. 862.

Finding no error that would require a reversal, 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.

On Motion for Rehearing.

LATTIMORE, J.

In his motion, appellant lays stress on two points, viz.: That the testimony of J. C. Roberts, set out in bill of exception No. 1, should have been admitted; that it was error to allow the state witness Johnson, in redirect examination, to say that he was separated from his wife, the sister of appellant, because of her immorality.

Appellant seeks to show that the authorities cited in our opinion disposing of the first of these contentions do not support the decision, in that the statements held self-serving in each of said authorities appear to have been deliberate and made to an officer. Nothing in hill of exception No. 1 shows that the statements of appellant to Roberts, which wore held inadmissible, were not deliberate, and the fact that Roberts was not an officer seems to furnish no ground for any distinction between this case and those cited in the opinion. The point at issue was and is the self-serving character of the testimony. Some time during the day before that of the killing, appellant said to Roberts: “Otis Pouncey is after me every time I go out to make a delivery, and I am trying to avoid him.” The rule generally adhered to in this state is that declarations of the defendant offered in his behalf, which are not res gestae nor relevant to some confession or declaration of his offered by the state, are not admissible. Wood v. State, 28 Tex. App. 61,12 S. W. 405; Giebel v. State, 28 Tex. Cr. App. 151,12 S. W. 591; Red v. State, 39 Tex. Cr. R. 414, 46 S. W. 408; Medford v. State, 86 Tex. Or. R. 240, 216 S. W. 175. We think the Cole Case, 48 Tex. Cr. R. 439, 88 S. W. 341, and the Poole Case, 45 Tex. Cr. R. 348, 76 S. W. 565, 567, relied on by appellant so different on their facts, as to not make them in point.- Statements held admissible in the Cole Case could hardly be declared self-serving under any construction. The statements held admissible in the Poole Case were made a very short time before the homicide, not over an hour or two before the killing. There must necessarily be exceptional cases under any general rule, and these exceptions are largely dependent upon the facts in the particular case. In the Poole Case, supra, there was a closely drawn issue of self-defense against an attack with a pistol by the deceased. In the case before us, apparently the main eye-witness for the defense testified that he saw the deceased sitting by a street playing with a little rock, and that appellant presently came up said street. He said further that deceased started up the street walking toward appellant, who said to deceased: “Go on, I don’t want to have any trouble out of you.” Deceased walked on, and appellant again spoke and said: “Go on now, I don’t want to kill you.” Deceased still continued to walk toward appellant, who then said: “Get back or I will kill you,” and at this juncture deceased said “Shoot,” whereupon appellant raised a paper in which he had a pistol and fired. The witness said deceased had not offered to do anything with the rock, had not raised his hand or said anything to appellant, except as above stated. These facts make out a very different case from Poole v. State, supra, and Cole v. State, supra.

We find nothing in the other proposition advanced. Appellant on cross-examination of the witness Johnson had asked him many questions calculated to reflect upon him. The matters complained of in hill of exception No. 4 were elicited from said witness on redirect examination as explanatory of the reflective facts brought out by appellant. That this is in accordance with the authorities is plain. Numerous cases so holding are cited by Mr. Branch in his Annotated P. C., sec. 94. Among them are Bruce v. State, 31 Tex. Cr. R. 594, 21 S. W. 681; Burks v. State, 40 Tex. Cr. R. 169, 49 S. W. 389; Maxey v. State, 58 Tex. Cr. R. 118, 124 S. W. 927.

We are constrained to helieve the case properly decided originally, and the motion for rehearing will be overruled.


author: O’QUINN, J.

text:
    BOULEVARD UNDERTAKING CO. v. BREAKER et al.
    No. 2109.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 26, 1931.
    ICing, Wood & Morrow, of Houston, for appellant.
    Barkley & Webb, of Houston, for appellees.
   O’QUINN, J.

Appellees, Mrs. M. C. Breaker and her husband, M. C. Breaker, brought this suit in the district court of Harris county for the recovery of damages on account of personal injuries alleged to have been suffered by the said Mrs. M. C. Breaker, and for damages to their automobile, growing out of a collision between the automobile which appellee Mrs. Breaker was driving, and an automobile owned and operated by the appellant, Boulevard Undertaking Company, complaining of “the Boulevard Undertaking Company, a corporation, with its principal place of business at 6929 Harrisburg Boulevard, Houston, Texas, with J. V. Cassaboom of Harris County, Texas, agent, upon whom service of citation may be had, styled herein defendant,” and alleging various acts of negligence on the part of the Boulevard Undertaking Company, and its agents, as grounds for recovery.

Citation was issued from the plaintiffs’ petition on April 10,1930, commanding the sheriff or any constable “of 61st County” to summon “Boulevard Undertaking Company, with its principal place of business at 6929 Harrisburg Boulevard, Houston, Texas, with J. V. Cassaboom of Harris County, Texas, agent.” The sheriff made his return upon the citation to the effect that he received the writ on the 10th day of April, A. D. 1930, at 4 o’clock p. m., and executed the same in Houston, Harris county, Tex., on the 12th day of April, A. D. 1930, at 1:25 p. m. by summoning the Boulevard Undertaking Company, a corporation, by delivering to J. V. Cassaboom, “agent of the said Boulevard Undertaking Company,” in person a true copy of the writ.

No answer was filed by the defendant, appellant, Boulevard Undertaking Company, and no appearance was made by it. On July 23, 1930, judgment was rendered in the cause upon the verdict of the jury duly impaneled, that plaintiffs, Mrs. M. C. Breaker and her husband, M. C. Breaker, appellees, have and recover of and from the Boulevard Undertaking Company, appellant, the sum of $2,500, with interest at the rate of 6 per cent, per annum, for which they might have execution; the judgment reciting that the defendant, appellant, in the cause, “though duly served with process, failed to appear and answer in this behalf but wholly made default.”

Appellant, Boulevard Undertaking Company, filed its motion to set aside the default judgment, on July 30,1930, and later filed its amended motion asking that said judgment be set aside and that it be granted a new trial on the grounds that: (1) The Boulevard Undertaking Company was never served with citation in the case, and that no citation was ever served upon any of its officers, or any one acting as its agent, and that no service of citation was ever had upon J. V. Cassaboom, the president of said corporation. (2) That if it should be mistaken in its allegation that no citation was ever served upon it in said cause, then that the officer’s return upon the citation on file among the papers in the cause was insufficient to support the default judgment rendered in the case and was fatally defective, in that: (a) The plaintiffs’ petition did not allege that J. V. Cassaboom was the president, secretary, treasurer, or local agent of the Boulevard Undertaking Company, the defendant corporation, but only alleged that he was the “agent” thereof; (b) that the sheriff’s return upon the citation did not show that the same was served upon the president, secretary, or treasurer of the Boulevard Undertaking Company, defendant corporation, or upon a local agent of said corporation, or that a copy of the citation was left by the officer at the principal office of said corporation during office hours, hut shows only that service of the citation was upon the Boulevard Undertaking Company “by delivering to J. V. Cassaboom, agent of the said Boulevard Undertaking Company, in person, a true copy of this writ.” The motion also set out at length various equitable grounds for the setting aside of the default judgment, which we do not deem it necessary to mention.

The motion was heard and overruled, and appellant brings this appeal.

Appellant presents four propositions urging the insufficiency of the citation and service thereof to support the default judgment. We shall discuss the fourth proposition only. It reads: “Fourth Proposition. The citation upon which the default judgment was rendered in this cause not being directed to the sheriff, or any constable of the county where the defendant below, Boulevard Undertaking Company, was alleged to reside, or to the officer who purported to serve the same, and Who made his return thereon, the same was wholly insufficient to support the default judgment entered thereon, and the entry of such default judgment upon such citation constitutes fundamental error.”

We shall not set out the whole of the citation. It began:

“The State of Texas, County of Harris
“In the District Court of Harris County, Harris Judicial District of Texas.
“The State of Texas:
“To the Sheriff or any Constable of 61st County, Greeting. You are hereby commanded to summon,” etc.

Article 2022, R. S. 1025, requires, among other things, that “citations shall be directed to the sheriff or any constable of the county where .the defendant is alleged to reside or be, and command him to summon the defendant to appear and answer the plaintiff’s petition at the next regular term of the court, stating the time and place of holding the same.”

That statutes prescribing the requisites of process are mandatory, and must be substantially complied with, has been so continuously and uniformly held as to need no citations of authority. The article supra, prescribing the requisites of a citation, is mandatory and must be strictly followed to confer jurisdiction. The instant citation is not addressed to the sheriff or constable of any county — is the same as if nothing had been stated in the blank place in the citation where the name of the county should appear — and unquestionably a citation so issued and so served would not be sufficient to authorize a judgment by default. There is no question but that a citation in a civil suit must be directed to the sheriff or any constable of the county in which the defendant lives, and that only the officer living within the county to which citation is directed has the power to serve same. The service shown in the instant ease was,.in contemplation of law, no service. The court, therefore, had no jurisdiction of the defendant, and the judgment was consequently void.

What we have said renders it unnecessary for us to pass upon the other questions presented.

The judgment is reversed, and the cause remanded for another trial.


author: HICKMAN, C. J.

text:
    SPIKES et al. v. WEST TEXAS SUPPLY CO.
    No. 886.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 11, 1931.
    Rehearing Denied Oct. 9, 1931.
    • Jas. A. Stephens, and J. C. Patterson, both of Benjamin, for plaintiffs in error.
    M. E. Billingsley, of Munday, for defendant in error.
   HICKMAN, C. J.

This is the second case in this court growing out of the same transaction. The former ease is reported in 16 S.W.(2d) 959. In that case, as is disclosed by our opinion, the defendant in error procured a judgment on a promissory note and for the foreclosure of a mortgage lien upon certain personal property. The property was taken under a writ of sequestration, and the plaintiff in error I. EC. Spikes, who was a defendant in the original suit, repossessed the property by virtue of a replevy bond made by him as principal and O. D. Propps and E. B. Sams as sureties. No judgment was sought or obtained against Spikes or bis sureties on the replevy bond in the original ease. An effort was made to procure judgment against them after the term of court expired, by the entry of a nunc pro tunc decree, but this court held in the former appeal that the effort was futile. After our opinion was released in that case, the defendant in error instituted a suit on the replevy bond in the justice court alleging its damages in an amount less than $20t). A plea in abatement having been sustained in that court, the defendant in error appealed to the county court. The same plea in abatement was interposed in the latter court. It was overruled and judgment rendered in favor of the defendant in error against plaintiffs in error for the amount claimed as damages. Liability was based upon the theory, apparently, that the obligors on the replevy bond failed and refused to deliver the property described in the writ of sequestration and replevy bond to the sheriff to be sold in accordance with the decree in the original suit.

Only two assignments of error are presented to this court. The first one presents for review the action of the trial court in overruling plaintiffs in error’s plea in abatement. Three reasons are assigned in support of the contention that the trial court erred in this ruling, as follows: (a) Because the plea in abatement showed that the said cause of action was still pending in the district court of Knox county between the same parties; (b) because the amount in controversy was beyond the jurisdiction of the justice court; and (c) because, since the justice court had no jurisdiction, the county court acquired none by the appeal.

We cannot sustain this assignment for any of the reasons assigned. This is a different cause of action to that involved in the district court. That case was based upon a note and mortgage. This one is based upon an alleged breach of conditions of a replevy bond. Since the liability on the replevy bond was not enforced in the original suit, an independent suit may be maintained on the bond. Wilson v. Dickey, 63 Tex. Civ. App. 155, 133 S. W. 437.

The amount in controversy herein is the amount of the damages claimed, and not either the penal sum of the. bond or the value of the sequestered property. It was held by the Commission of Appeals in American Surety Co. v. Foust, 272 S. W. 445, 447, that, in a suit by a creditor against a surety on a road contractor’s bond, the penalty named therein determines the court’s jurisdiction. That conclusion was based upon the statutes applicable to 'that particular bond. The opinion points out 'the distinction between an action on a bond of that character and one of the character of a replevy bond, and quotes with approval the following clear statement of the rule from 15 C. J. 768: “It has been held that in an action on a bond it is the amount of the damages claimed, and hot the penalty of the bond, which determines, jurisdiction; the damages being the real amount in controversy and the penalty being regarded as in the nature of collateral security for the debt, but there is also authority for the view that the penalty of the bond is the amount in controversy for the purpose of determining jurisdiction. This apparent conflict may be reconciled by a distinction, which the cases do not always make clear, based on the nature of the bond and the judgment which must be entered in the action, and it is believed that the correct rule may be stated as follows: The amount of damages sought to be recovered controls where a judgment for that amount, although different from the penalty of the bond, determines the entire liability of the obligors. But the amount named as the penalty of the bond controls where the' nature of the bond is such, or the practice with relation to such action requires, that the judgment must be entered for the full penalty of the bond to be discharged on payment of the damages or to stand as security for further breaches; the' remecjy therefor being by scire facias.”

On the bond here involved a judgment for the amount of damages sought determines the entire liability of the obligors. It follows, under the rule above quoted, that the amount of damages sought determines the jurisdiction’ of the court rather than the penal sum of the bond.

From the syllabus in the case of Hail v. Tunstall, 21 Tex. Civ. App. 593, 54 S. W. 323, it would appear that it was held in that case that, in a suit on a replevy bond, the value of the property replevied fixes the amount in controversy for the purposes of determining the jurisdiction. A reading of the opinion in that case will disclose that the amount of recovery sought was the same as the value of the replevied property, and that amount determined the jurisdiction rather than the penal sum of the bond.

The second assignment of error complains of the action of the trial court in overruling the plea of res adjudicata filed by plaintiffs in error. It is claimed that the judgment rendered in the district court in the original cause was a final judgment, and had barred any other cause of action growing out of the same transaction. This assignment is overruled. As above stated, the causes of action are different, and the failure to procure a judgment on the replevy bond in the original suit does not bar an independent suit thereon. Wilson v. Dickey, supra.

No complaint is made of the sufficiency of the pleadings on the evidence to support the judgment rendered, except as shown in the two assignments considered. These assignments do not, in our opinion, afford any reason for reversing the judgment of the trial court, and same is therefore affirmed.


author: WALKER, J.

text:
    McDANIEL v. MORRISON.
    No. 2103.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 3, 1931.
    Rehearing Stricken Because Piled too Late Oct. 7, 1931.
    Sewell, Taylor, Morris & Garwood, of Houston, for appellant.
    Eitzpatrick & Sargent, of Houston, for ap-pellee.
   WALKER, J.

This action was by appellee against appellant for damages inflicted upon him by appellant in an automobile accident. The petition fully described the circumstances surrounding the accident, that is, appellee pleaded in detail the facts of the accident and the facts and circumstances constituting the negligence of appellant. Appellant answered denying the allegations of appellee’s petition, and pleading against him, several issues of contributory negligence. The case was tried to the jury upon forty special issues, submitting the different grounds of negligence pleaded by appellee against appellant and the different acts of contributory negligence charged against appellee. These several issues were raised by the evidence as issues of fact for the jury, and none of them were shown as a matter of law. Appellee’s damages were assessed in the sum of $3,000 and judgment accordingly entered in his favpr. Appeal was prosecuted to the Court of Civil Appeals at Galveston, and transferred to this court by orders of the Supreme Court.

Opinion.

The court submitted to the jury the following charge on the burden of proof:

“The burden is upon the plaintiff to establish the facts alleged by him for recovery, as submitted to you herein, by a preponderance of the evidence.
“The burden is upon the defendant to establish the facts alleged by it in its answer for his defense of contributory negligence, as submitted to you herein, by a preponderance of the evidence.”

Appellant reserved the following exceptions to this charge: “This defendant excepts and. objects to the Court’s instructions to the jury on the burden of proof, and says that same is too general, and that the jury would probably be in doubt as to the meaning thereof, and that the Court should definitely instruct the jury as to what particular issues the burden is upon the plaintiff to establish; and this defendant therefore requests the Court to so change the charge as to the burden of proof as to eliminate therefrom the following language : ‘To establish the facts alleged by him for a recovery’, and to insert in lieu thereof; ‘to establish the affirmative or negative as the case may be of the several issues upon which the burden of proof rests upon the plaintiff to establish.’ ”

The charge on the burden of proof was subject to these exceptions. This charge required the jury to search the plaintiff’s petition for the facts pleaded by him as a basis of his recovery, then to search the charge for the fact issues submitted, necessary to sustain his recovery, and then to answer these questions upon the burden of proof. As we understand our decisions,' “when a case is - submitted in this manner, the jury are not concerned with, nor are they presumed to know, what facts are essential to be found to entitle the plaintiff to recover.” Western Union Telegraph Co. v. Rutledge (Tex. Civ. App.) 15 S.W.(2d) 210, 211. See, also, Linn Motor Co. v. Wilson (Tex. Civ. App.) 14 S.W. (2d) 867, and authorities cited therein. This charge on the burden of proof constituted reversible error. -In considering this assignment we have carefully reviewed Houston & T. C. Railway Co. v. Stevenson, 20 S.W.(2d) 995, 999, where Mr. Justice Sharp, speaking for the Commission of Appeals, said: “Since this ease will be reversed and remanded, we think it proper to state that, when plaintiff pleads and relies for recovery upon specific acts of negligence on the part of the defendant, and the case is submitted to the jury upon special issues, it is proper to instruct the jury as to those acts of negligence so charged and relied upon that the burden is upon the plaintiff to establish them by a preponderance of the evidence. When the defendant challenges the right of plaintiff to recover by reason of certain exceptions, and that by virtue of certain exceptions there is no liability on the part of the defendant, and special issues based upon such exceptions are submitted to the jury upon such special issues, it is proper to instruct the jury that the burden is upon the defendant to establish them by a preponderance of the evidence.” As we understand Judge Sharp’s proposition, he placed the burden upon the trial court to select from the plaintiff’s pleadings the “specific acts of negligence” pleaded by him constituting the basis of his recovery, and to submit such issues to the jury for their consideration and, when thus submitted, to direct the jury’s attention thereto by a charge to the effect that the “burden is upon the plaintiff to establish them by a preponderance of 'the evidence.” Judge Sharp said nothing suggesting, in the remotest degree, that the trial court should direct the jury’s attention to the issues to be found in the plaintiff's favor in order that he might recover. All the authorities, as we construe them, condemn any ruling of the trial court or argument of counsel suggesting to the jury the facts necessary to be found by them in order to establish the plaintiff’s cause of action. This proposition was clearly announced by the Supreme Court, under our certificate, in McFaddin v. Hebert, 118 Tex. 314, 15 S.W. (2d) 213, and condemns, as reversible error, the trial court’s charge on the burden of proof.

Appellant also complains that the evidence was insufficient to sustain the jury’s findings convicting him of negligence and acquitting appellee of contributory negligence. The evidence so clearly sustains these findings that we overrule these assignments without further consideration.

Appellant aso complains of certain misconduct of the jury. He is estopped to assert error on this assignment, Before the verdict was received he knew in detail the conduct of the jury upon which this assignment is predicated and with this knowledge permitted the court to receive the jury’s verdict and to discharge the jury without exception by him. Ineeda Laundry v. Newton (Tex. Civ. App.) 33 S.W.(2d) 208.

For the error in the charge on the burden of proof the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: ALEXANDER, J.

text:
    TAYLOR v. TAYLOR et al.
    No. 1057.
    Court of Civil Appeals of Texas. Waco.
    Sept. 17, 1931.

      . H. S. Beard, John B. McNamara, and J. W. Spivey, all of Waco, for plaintiff in error.
    Poage & Neff, of "Waco, for defendants in error.
   ALEXANDER, J.

This was a suit by C. N. Taylor against his older children,' W. E. Taylor, Beerman Taylor, and Genevieve Taylor, for a writ of habeas corpus to regain the custody of plaintiff’s two minor children, Willard Taylor and Grace Taylor. All of the defendants and the two minor children involved herein are the children of the plaintiff and his first wife. The plaintiff’s first wife died in 1928. He remarried in the early part of 1929. After the plaintiff’s second marriage, the older children, the defendants herein, withdrew from plaintiff’s home and established a home of their own. The two younger children, the minors involved herein, went to live with the older children. In 1929 the plaintiff filed a suit in the Nineteenth district court of Mc-Lennan county to restrain the defendants herein from interfering with his custody of the minor children. The defendants herein filed a cross-action in that suit, praying for the custody of the other minors, and upon a trial thereof the minors were awarded to the custody of the older children. There was no appeal from that judgment. In January, 1930, the plaintiff filed this suit in the Seventy-Fourth district court to regain the custody qf the minors. Upon a trial of the case before the court the plaintiff was denied a recovery. He has sued out a writ of error to this court.

Ordinarily where the custody of minor children is involved, the best interest of the children is the paramount issue. Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351; Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Davis v. Sears (Tex. Com. App.) 35 S.W.(2d) 99, par. 12.

The presumption is that the best interest of the children will be subserved by awarding them to the natural parent, but this is a rebuttable presumption, and it is not necessary that the respondents prove that the natural parent is disqualified by immorality or misfortune. Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351.

The question as to which of the two homes will best promote the interest of the minors is a question of fact. The authority and discretion to weigh the testimony and to determine where the best interest of the minors will be subserved is vested in the trial court, and the appellate court should not disturb the judgment of the trial court unless it is so contrary to the great preponderance of the testimony as to reveal an abuse of that discretion. Kendall v. Williams (Tex. Civ. App.) 233 S. W. 296, par. 1; Bemus v. Bemus, 63 Tex. Civ. App. 148, 133 S. W. 503, par. 1; Foster v. Foster (Tex. Civ. App.) 230 S. W. 1064, par. 4; Cecacci v, Martelli (Tex. Civ. App.) 235 S. W. 951, par. 3; Davis v. Sears (Tex. Com. App.) 35 S.W.(2d) 99; Tunnell v. Reeves (Tex. Com. App.) 35 S.W.(2d) 707, par. 6.

It appears from the evidence that Genevieve Taylor, one of the defendants herein, is now 22 years of age and is keeping house for her older brothers and the minors involved herein. W. E. Taylor, one of the defendants, is working steady and earning good wages. He enjoys a good reputation. Beer-man Taylor is working part time. The defendants aré able to provide and have provided a home for the minors. Willard Taylor, one of the minors, is now 17 years of age, and Grace Taylor, the other minor, is now 14 years of age. They have lived with the defendants since February, 1929, and have been well cared for. They enjoy the love and affection of their older brothers and sisters, the defendants herein, and prefer to live with them. They do not love nor respect their stepmother and strenuously object to living in the house with her. They have reached the age where a court order awarding them to the custody of their father would be of little value. The choice of the minors a.s to where they shall live is not necessarily controlling, but is entitled to be considered by the trial court, especially where the minors have reached the age shown in this case. Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351, par. 3.

Without discussing the evidence in detail, it is sufficient to say that there was evidence in the record tending to show that the father was at times cruel to the children. Two trial judges have passed on the facts and in each instance the custody of the minors has been awarded to the defendants. We think the evidence was sufficient to justify the trial court in denying the plaintiff the custody of the minors, and that this court would not be justified in disturbing that judgment.

The judgment of the trial court is therefore affirmed.


author: LOONEY, J.

text:
    STATE v. ROBINSON et al.
    No. 11033.
    Court of Civil Appeals of Texas. Dallas.
    July 3, 1931.
    Rehearing Denied Oct. 10, 1931.
    Jas. V. Allred, Atty. Gen., and Grady Sturgeon and Everett L. Looney, Asst. Attys. Gen., for the State.
    D. A. Frank, Crate Dalton, and E. G. Sen-ter, all of Dallas, for appellee.
   LOONEY, J.

W. E. Robinson, J. E. Hambrick, and Sherwood H. Avery,, underwriters of Bankers’ Lloyds of Dallas, and Johnnie Johnson and Dr, John F. Ford, creditors, brought this suit for the appointment of a receiver to wind up the affairs of the association. Bankers’ Lloyds, Stephen Reele, attorney in fact, Guardian Securities Corporation, holder of certain powers of attorney, and John Touchstone, custodian, were made defendants. The suit was brought for the benefit of all other creditors and underwriters who desired to join in the proceedings. Plaintiffs alleged that the association was in an insolvent condition ; that its affairs were being mismanaged and its assets squandered and dissipated, and as the result thereof, they were threatened with irreparable loss of property. The petition concluded with a prayer for the appointment of a receiver to wind up the affairs of the association under orders of the court. The prayer was granted, and Charles W. A’Brams was appointed receiver on March 4, 1931; he immediately qualified and became active in the discharge of the duties of the position. At this juncture, the state of Texas, through the Attorney General, was granted leave to intervene for the purpose of moving the court to vacate the receivership and dismiss the receivership proceedings. On March 31, 1931, after a hearing, the court overruled the motion to vacate and the State appealed.

The material question for decision is presented in the brief for the state as follows: “The remedy given by Article 5022, R. C. S., as amended by Acts 1929, 41st Leg., 1st Called Sess. p. 32, c. 11, § 1 which provides that when the minimum assets of underwriters at Lloyds becomes impaired the Board of Insurance Commissioners shall immediately give to the attorney-in-fact for such Lloyds notice to make good the impairment, and if within thirty days from the giving of such notice the impairment or insolvency shall not be made good by such underwriters, or their attorney, then the Board shall take charge of the assets of such underwriters and effect a reinsurance of all business outstanding in Texas and make provision for payment of outstanding claims and losses, and, in case reinsurance cannot be effected by said Board, then the affairs of such underwriters at Lloyds shall be wound up through receivership proceedings instituted by the Attorney General at the request of the Board, is exclusive, and the court cannot appoint a receiver to wind up the affairs of the association on the petition of three stockholders and two creditors.”

As an approach to our subject it may, we-believe, be correctly said that the business of insurance, however conducted, is quasi public in nature, and subject to regulation and control by the state (14 R. C. L. 857 and authorities), and this doctrine is equally applicable to insurance conducted under the Lloyds plan (38 C. J. 160 § 12, and authorities cited). The policy in this state with reference to the dissolution and winding up of the affairs of its legal entities, as manifested by acts of the Legislature, is that the right to bring about such results belongs exclusively to the state, and that courts, unless authorized by statute, have no power to dissolve or wind up their affairs at the instance of individuals. See provisions for quo warranto proceedings, articles 6253 to 6258, R. C. S.; also provisions for the dissolution and winding up of the affairs of insolvent corporations, articles 1379 to 1386, R. C. S.; and especially the provision for winding up the affairs of insurance corporations, article 4691, subd. 5, R. C. S., as follows: “ * * * No action shall be brought or maintained by any person other than the Commissioner for closing up the affairs or to enjoin, restrain or interfere with the prosecution of the business of any such insurance company organized under the laws of this State.” Also, see special provisions for the dissolution of local mutual aid associations at the suit of the Attorney General (Vernon’s Ann. Civ. St. Art. 4875a — 27, Acts 41st Leg., p. 563, e. 274, § 27).

The exceptions contained in article 1383 giving stockholders owning 25 per cent, of the stock and creditors owning 25 per cent, of the indebtedness the right to institute proceedings for the dissolution of an insolvent corporation show that the cases excepted would otherwise be within the general words ■of the statute, and, in effect, is an affirmation of the application of the general rule to all other cases.

The wisdom underlying legisaltion protecting corporations generally and associations conducting insurance from winding up proceedings at the suit of individual creditors or stockholders would certainly justify provisions similarly protecting the affairs of a Lloj'ds insurance association, for it is evident that a receivership would practically end its business activities, discredit it as a business concern in the estimation of the public, effectually prevent or at least discourage efforts of underwriters'to make good an impairment or insolvency, outstanding risks if not reinsured, would be canceled to the detriment of policyholders, securities held in the guaranty fund would at once be put in the melting pot for liquidation, at probable sacrifice, and, if the exigency demands, individual underwriters would be called upon at once to pay their notes held in the reserve. These are doubtless some of the results the Legislature sought to avoid by the provision that insurance at Lloyds should be under the supervision of, and subject to visitation by, the board of insurance commissioners; that the attorney in fact should make annual reports, under oath, as to the status of affairs, and, when it appears that the guaranty fund is impaired, or insolvency exists, the board, to avoid a collapse, is required to put forth special efforts to have the impairment or insolvency made good, failing in this, it becomes its duty to take charge of the assets, etc., and, if possible, effect reinsurance of outstanding risks, but, if this cannot be accomplished, as a last resort, the statute provides that the affairs of the association shall be wound up by a receivership proceeding brought by the Attorney General, at the request of the board.

The question presented seems to be one of first impression in this state, although in other jurisdictions the doctrine is well established that the right to dissolve and wind up affairs of corporations for any cause, without its consent, belongs exclusively to the state, and that courts are without the power to bring about these results in proceedings brought by individual creditors or stockholders. One of the early cases is Ulmer v. Falmouth Loan & Building Ass’n, decided by the Supreme Court of Maine, reported in 93 Me. 302, 45 A. 32, 34. The question arose under a statutory arrangement similar to provisions in the Lloyds plan under consideration. Construing the statute, and giving reasons for the construction, the court said: “The statute points out the conditions under which the intervention of the court may be obtained, and the officer by whom the machinery of litigation may be set in motion. It suggests no other way. And it is the opinion of the court that it was the intention of the legislature, as expressed in the statute, that the power of invoking the interference of the court should be vested in the bank examiner alone, and that he only-may pray for an injunction and a receiver. It is to be observed that these institutions possess a public character, and it is for the interest of the public, not only that they shall be subjected to judicial investigation when they ought to be, but also that they shall not be so subjected when they ought not to be. Unusual means are placed in the hands of the bank examiner to ascertain their condition, and it cannot be presumed that he will fail to act in a proper case. If one shareholder may maintain a bill, so may every other. There is no limit. To subject loan and building associations to vexatious, harassing and expensive litigation caused by the suits of possibly multitudinous shareholders who may be dissatisfied, with or without reason, would greatly impair their usefulness, if not imperil their existence.”

To the same effect see Craughwell v. Mousam River Trust Co., 113 Me. 531, 95 A. 221; Dresser v. Hartford Life Ins. Co., 80 Conn. 681, 70 A. 39, 50; Koch v. Missouri-Lincoln Trust Co. (Mo. Sup.) 181 S. W. 44; Union, etc., Co. v. District Court, 44 Utah, 397, 140 P. 221, 225, Ann. Cas. 1917A, 821. From the latter case we quote the following pertinent passages; the court said: “The question we must decide is whether every dissatisfied shareholder may go into a court at any time and ask that court to wind rip the affairs of a building and loan association so that he may at once, or as soon as the business affairs of the association can be wound up, obtain the withdrawal value of his shares, and in so doing arrest and frustrate the entire scheme and purpose of the association and, as we have seen, dissolve all of the existing contractual relations between the association and its members except for the purpose of liquidation, without giving the association the opportunity contemplated by the statute to correct any evils or wrongs that may exist in managing its affairs. If this may be done, then any shareholder may jeopardize the welfare of the association and its members at any time and without adequate cause. * * * The only purpose of the statute is to prevent hasty and ill-considered action in the courts by a party without giving the association any opportunity whatever to first correct any wrongs that may exist in its management or business affairs, and which, if corrected, may be for the best interests of a great majority of the shareholders without injury or prejudice to any.”

Appellees contend, however, that under the circumstances they were threatened with an irreparable loss of property, hence were not required to await or depend upon action by the state through its public officials, but were privileged to enter court in search of an appropriate remedy for their protection, and that to take the view of the Attorney General and deny them this right would, in effect, violate the provision of section 13, art. 1, of the Constitution, guaranteeing that; “All courts shall be open; and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” This provision of the Constitution is but declaratory of a pre-existing common-law right, and the effect of the constitutional provision is to forbid the Legislature to in any way curtail or impair that right, but it did not change the rule with respect to the sovereign right of the state to control legal entities created by it, and in this respect the state’s right may not be interfered with by the courts at the instance of private suitors. However, this doctrine does not mean that creditors and underwriters are without remedy for an injury suffered or threatened. Where the purpose of the action is not to wind up the affairs of the association, but to prevent the doing of some forbidden act, or to require obedience to the provisions of a statute, or to obtain a judgment against the association — in fact, any proceeding which is not intended to de-stroythe existence of the association may be maintained, under facts that justify the action, by any underwriter or creditor. In Union, etc., Co. v. District Court, 44 Utah, 397, 140 P. 221, 226, Ann. Gas. 1917A, 821, the court disposed of a similar contention as follows: “We are also of the opinion, and so hold, that where the purpose of the action is not to wind up the affairs, but is merely to prevent it from doing some forbidden act, or from continuing the mismanagement of its affairs, or to require it to follow the provisions of the statute and cognate matters, or for the purpose of obtaining a judgment against the association, and, in short, any offensive or prohibitive action which is not intended to destroy the existence of the association, such action may be brought by any shareholder at any time in any court of competent jurisdiction. Where, however, as here, the manifest purpose, and the only possible result, of the action is to wind up all of the business affairs of the association, and the effect is necessarily to dissolve its corporate existence, the action should be commenced by the Attorney General as pointed out in the statute.”

It is not^to be presumed that the Legislature, contrary to its general policy in regard to the dissolution and winding up of the affairs of entities created by it, as shown in the different statutes hereinbefore referred to, intended to subject insurance business conducted under the Lloyds plan to receiverships and winding up proceedings at the' suit of any creditor or dissatisfied underwriter; therefore we hold that the procedure prescribed by article 5022 is exclusive, and that the court erred in overruling the contention of the state, hence the order appointing the receiver is set aside, and the proceedings for receivership are dismissed. The cause, however, is remanded, with instructions to the court below to require the receiver heretofore appointed to make a Tull report of his doings as such, to close the receivership, and order that delivery of all assets of Bankers’ Lloyds in the custody of said receiver be made to the person, persons, or official legally entitled to receive delivery of same.

Reversed and rendered on the main contention, and remanded, with instructions.


author: FLY, C. J.

text:
    FOSTER et al. v. CHRISTENSEN.
    No. 8588.
    Court of Civil Appeals of Texas. San Antonio.
    April 15, 1931.
    Rehearing Denied Oet. 14, 1931.
    H. S. Bonham, W. E. Pope, and H. A. Carr, all of Corpus Christi, for appellants.
    Sidney P. Chandler, of Corpus Christi, for appellee.
   FLY, C. J.

This action was instituted by appellee against Mrs. Loula Foster, a widow, Mrs. L. M. Decker, a widow, George A. Newgent and wife, Frances F. Newgent, and A. L. Ray, and Mrs. A. L. Ray. All, except A. L. Ray and his wife, were alleged to be heirs of W. H. Foster, who died after the suit was instituted. The suit was brought to set aside a judgment against the Newgents, the Rays, and appellee Christensen, obtained by W. H. Foster and Loula Foster, his wife. The judgment was by default, and was sought to be set aside by ap-pellee herein. The court instructed a verdict for appellee.

Appellee bought the land in- controversy at a sale made by the trustee in bankruptcy in case of the bankrupt estate of George A. New-gent. The latter had returned the land in his schedule of assets to the bankrupt court. The deed to the land was executed to George A. Newgent and Frances F. Newgent by W. H. Foster and wife, and a vendor’s lien was reserved to secure the payment of promissory notes given by the grantees as purchase money. The judgment which appellee sought to set aside was obtained-by the Fosters on the notes and to foreclose the vendor’s lien. Prior to the institution of that suit, appellee had bought the land in controversy at a sale ordered by the bankrupt court. There were no recitations in the deed indicating that the land was the separate estate of Mrs. Newgent, but the deed was made to her and her husband jointly. At the time appellee bought the land he had no notice, actual or constructive, that the wife was claiming it as her separate estate.. The first notice he had of such claim was during the pendency of this suit. The deed given appellee recited that the land was conveyed free from all liens of every character. Mrs. Newgent had no actual notice of the bankruptcy proceedings, of the fact that the land had been placed among the assets of her husband, or that the property had been sold to appellee.

Property conveyed to either spouse during the marital relation, or to both, without recitals that the property is the separate property of one of them, is presumed to be community property. The land in question went into the bankrupt proceedings as presumptively the community property of the Newgents, and as such estate it was subject to the debts of the husband. It was sold by the court with that presumption attached to it. The land was in the actual possession .of the trustee in bankruptcy at the time it was sold, and no one had been notified of any claim made by Mrs. Newgent to the land as her separate estate.

As stated, the record failed to disclose the fact that the land was the separate estate of Mrs. Newgent. On the other hand, it leads to the conclusion that the property was bought by the Newgents for their community estate. Not even possession proclaimed any claim except as shown by the record itself. The bankruptcy court treated it as community property and sold it as such. If any evidence that tended to prove the separate character of the property was offered, the brief fails to indicate it and point it out. The brief in the most general terms refers to bills of exception, and this court could not be required to search the numerous bills of exception to discover testimony offered by appellants. However, we have investigated the bills of exception and find that testimony was offered tending to prove the land to be the separate estate of Mrs. Newgent.

Let it be assumed that Mrs. Newgent could have presented testimony showing the land to be her separate estate, yet it must be remembered that it was after the judgment of the bankruptcy court had been rendered and the land had been sold under' an order of sale of that court, that the suit for foreclosure was filed by the parents of Mrs. Newgent against the Newgents and appellee, and after appellee had filed his suit to remove the cloud from his title that Mrs. Newgent comes forward to claim the land. She made no such claim while the bankrupt proceedings were pending, but sat silently by, and without objection permitted the land to be sold as community property and to be bought and paid for by appel-lee. If a party could be an innocent purchaser at an execution sale, appellee occupied that position.

The attack made upon the sale of the land by the bankruptcy court was, without doubt, made in a collateral proceeding. In that proceeding, the judgment of the court was assailed on the ground that it could not order the sale of the separate property of the wife to liquidate the debts of the bankrupt husband. The bankruptcy court, when it issued its order of sale, had before it a schedule of the assets of the husband, among which was the land claimed afterwards by the wife. The property had been conveyed to Newgent and wife; no mention in the deed being made that the land was the separate estate of the wife. That claim was never presented until after ap adjudication that the property was. an asset of the bankrupt and after it had been sold by .the court’s order to appellee. The effect of the wife’s claim in a collateral proceeding was to nullify the judgment of the bankrupt court as much so as if a direct attack had been made upon it. It undermined the judgment and rendered nugatory the order of sale issued thereunder. Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 852; Van Fleet’s Collateral Attack, § 3, pp. 5 and 886. It would indeed be an anomaly if an action which effectually destroys a judgment did not assail the very life of that judgment. If the property decreed by the court in bankruptcy to be that of the bankrupt is declared by another court to be that of his wife, the latter has. given the death blow to the former. If the attempt of the wife to set aside the only element in the judgment was not an attack on the judgment, we cannot conceive- of anything being- an attack on a judgment collaterally,

Any action directly brought to alter, defeat, or destroy a judgment is a direct attack, and any attack made for the same purposes in a proceeding not instituted to destroy or defeat a judgment is a collateral attack. Any proceeding tliat tends to defeat, change, or destroy a judgment of a court having jurisdiction is an attack upon it which must be made directly and not collaterally. Van Fleet, § 620, pp. 656, 657.

The land, as before stated, was in the possession of the bankruptcy court when it was decreed to be community property, and Mrs. Newgent is charged with knowledge of such possession. And with such knowledge, she is estopped from claiming the land in her own separate right. We conclude that Mrs. Newgent had no power to assail the judgment of the bankrupt court in adjudging the land subject to the debts of the bankrupt, and in selling it as such. Van Fleet Coll. Att. § 860.

Recurring to the question of estoppel, as applicable to a married woman, the rule has been thus formulated in Texas: In addition to the ordinary requirement that the act of the party must have been such as to have caused another to place himself in a worse position than he would have been had such act have been performed or omitted when it should have been performed, the act creating estoppel as to a married woman must be such as to amount to fraud. Silence or concealment of facts may constitute such fraud. Johnson v. Bryan, 62 Tex. 623; McLaren v. Jones, 89 Tex. 131, 33 S. W. 849; San Antonio Real Estate, Building & Loan Association v. Stewart, 27 Tex. Civ. App. 299, 65 S. W. 665. Mrs. Newgent was' charged with notice that the trustee in bankruptcy was in full possession of the land. She knew that he was claiming it as trustee for the bankrupt estate, yet she made no claim to it, remained quiet and silent, until her silence and inaction had led appellee to purchase and pay for the land. This conduct was a fraud upon his rights. Wimberly v. Bailey, 58 Tex. 222; Craig v. Cartwright, 65 Tex. 413. It might be well surmised that that scheme was enacted to have the property sold as that of New-gent, to apply the proceeds to the payment of his debt, and then recover the land as the separate estate of the wife of the bankrupt. No such fraud should be countenanced or sustained. The Fosters made themselves parties to the fraud, and should be estopped from any claim to the land. They made no effort to assert any claim to a lien on the land, although they knew that it had been scheduled as the property of the bankrupt and had been sold by the court for. the benefit of his creditors. They waited until all this was acomplished before setting up any claim to the land. In equity and good conscience they should be es-topped from setting up a lien on the land.

It is true the lien held by the Foster^ on the land was not disturbed by the bankruptcy proceedings, because it was a lien retained in the deed which was duly recorded. Brandenburg on Bankruptcy, §§ 19-20, p. 62.

But that fact would not prevent the arising of an estoppel against the holders of the lien. Especially in this case where the notes were past due and no effort had before been made to collect the debt by law.

The numerous assignments and propositions are overruled, and the judgment is affirmed.

On Motion for Rehearing.

Conclusions on the disputed fact of notice to appellee as to the -claims of Mrs. Newgent to the property in controversy are not necessary in this case, and such conclusions are doubtless incorrect and are withdrawn.

Independent of the question of notice, or any other question that might arise in this case, the writer is of the opinion that the attempted judgment in the state court was a collateral attack upon the judgment of a federal court of competent jurisdiction, and that it could not be entertained. Doubtless the lower court based its opinion upon the question of collateral attack, for all of the defenses intended to be set up in regard to notice and other matters were held subject to demurrer. If the claim set up by appellant in this case be sustained, it would destroy the-effect of the judgment which held the property in controversy to be community and subject to the debts of the husband; it would practically undermine and destroy the judgment of the court in bankruptcy, and according to all rules should not be entertained/. Buchanan v. Bilger, 64 Tex. 589.

The motion for rehearing is overruled.


author: JACKSON, J.

text:
    WARE et al. v. DAVIDSON et al.
    No. 3588.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1931.
    Rehearing Denied Oct. 14, 1931.
    Cooper & Lumpkin, of Amarillo, for appellants.
    Morgan, Chiton, Morgan & Britain, Madden, Adkins, Pipkin & Keffer, Reeder & Reed-er, and Underwood, Johnson, Dooley & Simpson, all of Amarillo, and Thompson & Bar-wise, of Port Worth, for appellees.
   JACKSON, J.

This suit was instituted in the district court of Potter county, Tex., by the plaintiffs, C. T. Ware, R. C. Ware, and C. R. Garner, against the individual defendants, Alex Davidson, Tullie M. Dickson, and her husband, J. B. Dickson, E. S. Blasdel, and Walter B. Allen, and against the corporate defendants, the Pecos & Northern Texas Railway Company, the Panhandle & Santa Pé Railway Company, and the Port Worth & Denver City Railway Company, to recover title and possession of certain particularly described portions of section 156, block 2, A. B. & M., in Potter county, Tex.

The defendants answered separately, each disclaiming any interest in the land sued for save and except certain specific tracts particularly described in his individual answer. The judgment of the trial court disposes of all parties and their respective claims.

This appeal is by the plaintiffs, and involves only the title to the land adjudged by the trial court to be vested in the defendant, the Port Worth & Denver City Railway Company, and no further' notice of the disposition of the rights asserted by the other defendants is necessary.

The plaintiffs’ petition is in the usual form of trespass to try -title, and they allege that the Fort Worth & Denver City Railway Company is a corporation, organized and authorized to do business under and 'by virtue of the laws of the state of Texas.

The Port Worth & Denver City Railway Company disclaimed as to all the lands described in plaintiffs’ petition except a strip 50 feet wide on the north and constituting a part of the tract of land claimed by plaintiffs. The 50-foot strip claimed by this defendant it describes by metes and bounds.

As a defense to plaintiffs’ suit in trespass to try title, this defendant pleaded not guilty and the statute of ten years’ limitation as to the land claimed by it and described in its answer.

In a supplemental petition the plaintiffs alleged that the Port Worth & Denver City Railway Company should not be permitted to claim a right of way more than 100 feet wide across said section 156 under any grant made to it by the state of Texas; that said section, of which the land in controversy is a part, was awarded by the state as a part of the free school lands to Prank Lester on September 10, 1887, and said defendant thereafter built its line of railway across said section; that by mesne conveyances from Lester, the plaintiffs are the owners of the title to all of said section, and, if defendant was ever authorized to appropriate a right of way 200 feet wide across said section, it failed and refused to do so and only appropriated a right of way 100 feet wide, which is 50 feet on each side of the center of its railway; that it fenced but 100 feet in width for its right of way and never claimed ownership to any greater part of said section; that on July 7, 1893, ft accepted from H. B. Sanborn and J. T. Holland, the owners in fee of said section, a deed conveying to it a strip of land 100 feet wide for its right of way over said section, in which deed defendant’s land is described as 50 feet on each side of the center of its tracks.

The Port Worth &- Denver City Railway Company, in a supplemental answer, demurred generally and specially to plaintiffs’ supplemental petition, and alleged that it was incorporated in the year 1873 by a special act of the Legislature of the state of Texas (Sp. Laws 1873, c. 208); that said act granted to it a right of way to the extent of 200 feet in width through the public lands of the state: that, at the time the act by which it was incorporated became a law, section 156 was a part of the public domain and had not been surveyed or sold; that by said act defendant was authorized to locate, build, equip, own, operate, and maintain a railway and telegraph line from, at, or near Port Worth in a northerly direction through the state toward Denver City, Colo.; that, subsequent to the enactment of said law, the defendant surveyed its line from Port Worth toward Denver City and across said section 156 and thereafter completed its line of railway, and ever since has continued to operate and use such railway; that under said act the defendant acquired a right of way 200 feet in width through such section for railway purposes, and any purchase made by the original grantee of said section from the state was subject and inferi- or to the rights of the defendant to the use of a 200-foot strip in width across said section for railway purposes; that such 200-foot strip had theretofore been appropriated for this defendant by the Legislature, and the land commissioner was without authority to sell to the original grantee the land appropriated to the defendant by the Legislature; that the development of the country and the increase of the population thereof necessitates the use of all of said strip for right of way purposes, and the defendant continually uses portions thereof for railway purposes and now uses a large part of said 200-foot right of way for the operation of its railway; that it has never abandoned any of said land, and any of such strip that is not in use is due to the fact that the development of the country has not necessitated its use for railway purposes, but the defendant has at all times held and reserved said entire strip to be used for railway purposes when the conditions justify such use.

The case was submitted to the court without the intervention of a jury and judgment rendered that the title to the strip of land involved in this appeal be confirmed in the Fort AVorth & Denver City Railway Company, from which judgment in behalf of the Fort Worth & Denver City Railway Company, the plaintiffs prosecute this appeal.

The appellants, by proper assignments, urge as error the action of the trial court in confirming the title of appellee to the use of the land for railway purposes, because: First, the land was not granted to appellee by the state of Texas; second, appellee failed to claim, take possession of, or appropriate said land for railway purposes; and, third, the testimony fails to show that the provisions of appellee’s charter which constitute conditions precedent to its acquisition of the land were performed by it.

The record shows that the tract of land involved is located outside of a right of way 100 feet in width across said section, but is included and situated within a right of way 200 ■feet -in width across said section; that on September 10, 1887, section 156, block 2, A. B. & M., in Potter county, Tex., was awarded by the commissioner of the general land office of the state to Frank Lester; that on September 24, 1887, Frank Lester conveyed said section to J. T. Holland; that on December 9, 1890, the state issued to J. T. Holland, assignee of Frank Lester, a patent conveying to J. T. Holland said section described as containing 640 acres of land; that by a regular chain of conveyances the appellants are the owners of the title acquired by, Frank Lester and J. T. Holland from the state to the land in controversy; that in 1873, the Legislature passed “An Act To Incorporate the Fort AArorth & Denver City Railway Company,” the provisions of which, necessary to a disposition oí this appeal, are:

“Section 1. Be it enacted by the Legislature of the State of Texas. That the following named persons (the names of whom are set out) be and they are hereby incorporated a body politic and corporate, under the name and style of the ‘Fort Worth & Denver City Railway Company’, under which name they shall have succession for the term of sixty years from and after the passage of this act, with the right to sue and be sued, plead and be impleaded, contract and be contracted with; to have and to hold, purchase and convey, both real and personal property,” etc. Sp. Laws 1873, c. 208.

This act then provides that the capital- stock of the Fort AArorth & Denver City Railway Company shall be $10,000,000, divided into shares of $100 each; that each share shall be entitled to one vote; that the persons named as incorporators shall, within ninety days after the passage of the act, meet at Fort Worth, Tex., open books for subscription to the capital stock of the company, and when $250,000 have been subscribed in good faith and 5 per cent, thereof actually paid, the stockholders may proceed to the election of a board of directors and officers of the company ; that, when the organization has been completed, as provided by the act, it shall be the duty of its president and secretary to send a certified copy of the proceedings to the secretary of the state of Texas to be filed in the archives -of his ■ office; that when the provisions of the act have been complied with, notice thereof shall be given by publication in the official journal published at Austin and in some newspaper in the city of Denver; that stock books may be held open for subscription to capital stock.

“Section 6. The said Fort Worth & Denver City Railway Company is hereby authorized and fully empowered to survey, locate, build, equip, own, control, manage, operate, and maintain a railway and telegraph line from some suitable point at or near Fort Worth, Tarrant County, Texas, forming a junction at said point with the Texas & Pacific Railway; thence, in a northwesterly direction, on the most practicable route through the State of Texas, in the direction of Denver City, Colorado, having in view the route best calculated to develop the mineral region of Northwestern Texas.”

The act also provides the gauge of the railway.

“Section 8. That the right of way, to be to the extent of two hundred feet in width, is hereby granted to said railway company, through the public lands of Texas, and also the right to take and use, in the construction of said road, any timber or other material used in the construction of railways, found and lying upon any of tlie public lands of tbis state.”

Tbe act then gives the corporation a right of eminent domain, grants to it sixteen sections of land of 640 acres each, for every mile of railway constructed and put in operation, with the provision that the certificates to said land shall be issued as the road is constructed, with other conditions imposed, stipulates that the first 25 miles shall be completed within three years and an additional 30 miles every two years thereafter until the road is completed through the state, and authorizes the issuance of bonds.

Section 14, in part, is: “Said Fort Worth & Denver City Railway Company shall not lease, rent or sell its road, or sell its franchises to, or purchase, or be merged in, or consolidated with any other parallel, connecting, or competing line of railroad in this State; and a violation of the provisions of this section shall forfeit all the charter rights and privileges of said company.”
“Section 15. That within six months after the organization of the company incorporated by this act, it shall be the duty of said company to file with the Commissioner of the General Land Office of this State plats and maps showing the line upon which it is intended to construct said railroad.”

The act of the Legislature, so far as this record reveals, is the only charter ever secured by the appellee from the state of Texas.

There is no testimony that a meeting was held in Fort Worth as directed, that stock books for subscriptions were opened, that any report of the proceedings was filed with the secretary of state or published in any newspaper, or that any plats or maps showing the line upon which the company intended to construct its railroad was filed with the commissioner of the general land office.

The testimony shows that by deed dated June 6, 1893, J. T. Holland and H. B. San-born, who had acquired the rights of Frank Lester, conveyed to the appellee a right of way over said section 156, in block 2, 100 feet wide, or 50 feet on each side of the center of appellee’s track; that section 156 was platted as the Holland addition to the town of Amarillo, which plat was recorded in the patent records of Potter county on December 13, 1S90; that said plat shows the location of ap-pellee’s railway across section 156; and that 100 feet on each side of said railway was reserved for railroad purposes. The testimony is insufficient to show that the appellee ever abandoned any rights acquired by it to a right of way across said section; that appellee has been paying taxes on the land in controversy since 1900; that in 1891 Amarillo had 400 or 500 people, and the country was very sparsely settled; that railroad traffic into and out of Amarillo has increased enormously in the last thirty years; that this section of the country has developed very rapidly, and a large amount of wheat and small grain is shipped annually from Amarillo.

The trial court found, in effect, that the appellee’s railway tracks crossed section 156 and that said tracks were placed on said section about November, 1887, that, at the time the railway line was located on and across said section, it was public free school land, and that appellee became the owner and entitled to the possession of a strip of land 100 feet on each side of the center of its tracks.

The appellants’ position is that, under the facts revealed by this record, the judgment of the trial court is without support and is contrary to the well-settled law, and to sustain their contention they cite and rely on Jamestown & Northern Ry. Co. v. Jones, 177 U. S. 125, 20 S. Ct. 568, 44 L. Ed. 698; Minneapolis, etc., Ry. Co. v. Doughty, 208 U. S. 251, 28 S. Ct. 291, 52 L. Ed. 474; Stalker v. Oregon Short Line Ry. Co., 225 U. S. 142, 32 S. Ct. 636, 56 L. Ed. 1027; and Washington & Idaho Ry. Co. v. Osborn, 160 U. S. 103, 16 S. Ct. 219, 40 L. Ed. 346. These decisions construe the rights of railway corporations under a general act of Congress passed in 1875, the provisions of which, that are material, are now found in sections 934 and 937 of title 43 of the U. S. Code (43 USCA §§ 934, 937).

Section 934 provides that “the right of way through the public lands of the United States is granted to any railroad company duly organized under the laws * ⅜ * which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road.”

Section 937 reads, in part, as follows: “Any railroad company desiring to secure the benefits of sections 934 to 939, inclusive, shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon un-surveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats .in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way.”

The special act under which appellee asserts its rights, incorporated as a body politic and corporate the Fort Worth & Denver City Railway Company, gave it right of succession, with the privilege of suing and being sued, contracting and being contracted with, and to have and to hold real estate, and granted to said Fort Worth & Denver City Railway Company a right of way across the public lands of the state of Texas to the extent of 200 feet in width. The only provision in said act stipulating for a forfeiture of ap-pellee’s charter rights and privileges is the prohibition in section 14 against leasing, renting or selling, purchasing, merging, or consolidating with any other parallel, connecting, or competing line of railroad. 'The charter of appellee names it as a specific grantee and the grant of a right of way to the extent of 200 feet across the public lands of Texas is without condition, except such as are implied that the railroad shall be constructed and used for railroad purposes.

In St. Joseph & Denver City R. Co. v. Matthew Baldwin, 103 U. S. 426, 429, 26 L. Ed. 578, the Supreme Court of the United States, in construing the Act Cong. July 23, 1866 (14 Stat. 210, 211), the sixth section of which reads: “And be it further enacted, That the right of way through the public lands be, and the same is hereby granted to said Saint Joseph and Denver City Railroad Company, its successors and assigns, for the construction of a railroad as proposed; and the right is hereby given to said corporation to take from the public lands adjacent to the line of said road material for the construction thereof. Said way is granted to said railroad to' the extent of one hundred feet in width on each side of said road where it may pass through the public domain” — holds that “the grant of the right of way by the sixth section contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designed. ⅜ ⅜ * We see no reason, therefore, for not giving to the words of present grant with respect to the right of way the same construction which we should be compelled to give, according to our repeated decisions, to the grant of lands had no limitation been expressed. We are of opinion, therefore, that all persons acquiring any portion of the public lands, after the passage of the act in question, took the same subject to the right of way conferred by it for the proposed road.”

In the case of Fort Worth & Denver City Railway Co. v. Southern Kansas Railway Co. of Texas, 151 S. W. 850, this court, in an opinion by Judge Hall, settled all the questions of law presented in this case against appellants.

The appellants’ contentions relative to the law were again considered in the case of Fort Worth & Denver City Railway Co. v. Western Stockyards Co. et al. (Tex. Civ. App.) 151 S. W. 1172 (writ of error refused), by Judge Hall, and determined adversely to appellants.

We have carefully reviewed the holdings by this court in the opinions last cited, and believe that the law as therein announced is correct.

For additional authorities, see Stuart v. Union Pacific Railway Co., 227 U. S. 342, 33 S. Ct. 338, 57 L. Ed. 535; Barlow v. Northern Pacific Railway Co., 240 U. S. 484, 36 S. Ct. 456, 60 L. Ed. 760; Nielson v. Northern Pacific Railway Co. (C. C. A.) 184 F. 601; Missouri, K. & T. Ry. Co. v. Watson, 74 Kan. 494, 87 F. 687, 14 L. R. A. (N. S.) 592; Northern Pacific Ry. Co. v. Wadekamper, 70 Wash. 392, 126 F. 909; Northern Pacific Ry. Co. v. Aas, 20 N. D. 247, 126 N. W. 1016.

The judgment is affirmed.

HARR, C. J., not sitting.