author: FUNDERBURK, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. TEEL.
    No. 870.
    Court of Civil Appeals of Texas. Eastland.
    May 22, 1931.
    Rehearing Denied June 19, 1931.

      Lawther, Cox & Cramer, of Dallas, for appellant.
    Smith & Smith, of Anson, for appellee.
   FUNDERBURK, J.

J. W. Teel brought this suit against Texas Employers’ Insurance Association to set aside an award of the Industrial Accident Board and to recover compensation insurance in a jump sum for injuries claimed to have been sustained in the course of his employment, and which had resulted in total permanent incapacity. The jury to whom special issues were submitted found that the injuries had been sustained as alleged, that'they resulted in total incapacity, and that such total incapacity was permanent. From a judgment rendered in favor of said Teel, in conformity with such findings, the Texas Employers’ Insurance Association has prosecuted this appeal.

Appellant first contends that the judgment of the trial court should be reversed because of the action of said court in overruling appellant’s motion to strike out the answer of appellee’s witness Dr. A. E. Pardue, as follows: “Well — manual labor — no, he wouldn’t — I wouldn’t advise him to.” Said answer was given in response to a question by which plaintiff asked the witness, as a physician and surgeon, and from his examination of plaintiff, if he would say at that time plaintiff’s condition is total so as to disable him from doing any manual labor so far as manual labor is concerned. The objection; to the answer urged in the motion was that it was not responsive to the question; that it was evasive and prejudicial. We are of opinion that the action of the court in overruling the motion was not error, but that, if it was, the error is harmless. If the answer was subject to the criticism that it was evasive, that was a fact of which appellant had the advantage in the argument before the jury. The fact sought to be elicited by the inquiry was against appellant. If it was not exactly responsive, appellant had the opportunity, by cross-examination, if desired, to'have a responsive answer. We are unable to see that it was prejudicial, because, had the answer been stricken, it would not have taken the issue out of the case, the same witness having further testified that plaintiff’s condition, as he had described it, was permanent; that he would not get well, and the condition would most likely have a tendency, as plaintiff got older, to become more serious to him. The point is therefore overruled.

Appellee, for jurisdictional purposes, offered in evidence, among other things, a certified copy of his claim made to the Industrial Accident Board, and of his notice given to the board of his unwillingness to abide by the award. On the certified copy of the claim was a notation as follows: “Received April 20th, 1930. Industrial Accident Board, State of Texas” — and on the notice the notation: “Received July 9th, 1930. Industrial Accident Board, State of Texas.” The introduction in evidence of these notations was objected to for the reason that same constituted no part of the original instruments; that the law does not require a receiving stamp on letters, instruments, etc., filed with the board, and that the notations as thus stamp-marked were not signed by or authorized by any one having authority ' to do so; that same were hearsay and prejudicial, and not competent evidence of its recitations.

In Texas Employers’ Insurance Ass’n v. Neatherlin, 81 S.W.(2d) 673, we held that notations like these stamped upon papers filed with the Industrial Accident Board were simply file marks. As such they are subject to the rules governing file marks. “It is the official duty of a clerk of a court to file all the papers in a cause presented by the parties, and to mark them ‘filed,’ with the date of filing.” 11 O. J. 887. One of the cases .cited as supporting the text is Wooster v. McGee, 1 Tex. 17, wherein it is said: “It is the Clerk’s official duty to file the papers in a case; and in making up transcripts for this court, to copy 'the statement of fhew being filed,.” (Italics ours.) It is further said: “All papers and pleadings prosecuted by the parties, should be marked ‘filed’ with the date of the filing; and this should be transcribed as an essential portion of the history of the case.” • It is further said: “* * * The paper not being marked ‘filed,’ wants the evidence of legitimacy, always to be impressed on the papers offered by the parties in a cause. * *, ⅜ ” In Davis v. State, 74 Tex. Cr. R. 298, 167 S. W. 1108, L. R. A. 1915A, 572, it was held that the clerk of a court should place on papers filed the actual date of filing. In Howard v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.) 135 S. W. 707, 709, it is said: “It is not only the general duty of a clerk to treat all litigants impartially, but it is his especial duty to indorse the correct file mark on all papers required to be filed.” So far as we have been able to ascertain, the duty of a clerk of a court to indorse a file mark upon papers, showing the date of filing, is not one that arises from any express statute. We therefore conclude that, when the law required papers to be filed with the Industrial Accident Board, there was by. implication imposed upon the board the duty of indorsing or having indorsed upon such papers the date of such filing. We are therefore of opinion that there was no error in the action of the court in admitting the notations in question in evidence.

Being admitted, they had some probative force, as was held by the Commission of Appeals in Lumbermen’s Reciprocal Ass’n v. Henderson, 15 S.W.(2d) 565. It follows that the instruments in question, at least in the absence of any other evidence to the contrary, sufficiently showed the jurisdiction of the trial court.

Two of appellant’s assignments of error are as follows:

“Because the court erred in overruling defendant’s Sixth objection to the Court’s charge. .■
“Because the jury’s answer to Special Issue No. 3 is against the preponderance of the evidence.”

The said sixth objection to the court’s charge was:

“Said defendant objects and excepts to the submission of Special Issue No. 3 for the reason that there is no evidence of a probative nature to raise such issue.”

Under said two assignments of error, appellant submits what is designated as point 6, as follows:

“The court erred in submitting to the jury Special Issue No. 3 as follows:
“ ‘Special Issue No. 3: Do you find from a preponderance of the evidence that such total incapacity, if any, was permanent? Answer Yes or No. (Tr. p. 25.) To which the jury answered Yes. (Tr. p. 27.)’ ”

Under this so-called Point 6 is1 submitted propositions 1 and 2, as follows:

“1. Where the finding of the jury is against the preponderance of the evidence it is the duty of the Court to set same aside and grant a new trial.
“2. Where the testimony shows that the claimant worked four months at the same job after the injury, has picked cotton (100 to 150 pounds a day in the 1930 short crop) and is picking cotton while down on his knees pulling a cotton sack, and states he intends to go back to picking cotton as soon as the trial is over, a finding that the total disability is permanent, is against the preponderance of the testimony.”

Point 6 presents1, if anything, only a question of law. A claim of the insufficiency of evidence, as distinguished from a claim of total lack of evidence, is‘inconsistent with the contention that the court was under the duty of giving a peremptory instruction. However, the so-called propositions manifestly have reference to a question of the insufficiency of the evidence. ■ Appellant’s -brief all the way through contains “points” and “propositions” as something different from one another, in that propositions are asserted under the “points.” We know of no procedure that recognizes a distinction between points and propositions. As used in Rule 30 (230 S. W. VII), the words “propositions” and “points” are synonymous. Wright v. Maddox (Tex. Civ. App.) 286 S. W. 607. Point 6 is not a proposition in any sense. It is only an assignment of error which was not filed in the court below, and does not appear in the transcript. The subjoined propositions are not germane to it. Point 6 therefore must be disregarded. Looking, to the propositions, it is manifest that they both must have reference alone to the assignment asserting that the jury’s answer to special issue No. 3 was against the preponderance of the evidence. The first proposition, if correct, is just as true of ¿ny other case as the one at bar. This character of proposition has many times been held to be too general to require consideration. 3 Tex. Jur. § 614, and authorities cited .under note 12.

• 'In Hart v. Harrell, 17 S.W.(2d) 1093, we held that an assignment like this raises neither the question of no evidence nor the insufficiency of evidence. To the same effect .in Speights v. Speights (Tex. Civ. App.) 176 S. W. 641.

• This view is grounded upon an entirely different principle than that upon which assignments are condemned as1 being too general. Such principle is that a proposition, to be good, must be one which, if sustained, would affect the judgment, unless, of course, it could be held by reason of other facts to be immaterial or harmless. The proposition in question requires us' to read the entire statement of facts. For what purpose? To ascertain if it shows that there was a preponderance of the evidence supporting a conclusion that plaintiff’s total incapacity was not permanent. But suppose we do conclude that there was a slight preponderance of the evidence supporting such conclusion. Would it be our duty 'to reverse the case? Not at all. In Niagara Fire Ins. Co. v. Lee, 19 S. W. 1030, 1031, ' the Supreme Court, when it was a fact-finding body, held that it would not disturb a verdict :and order a new trial, “even though,” in the ■language of the court, “we might be of the opinion that the evidence somewhat preponderated against the verdict.” The proposition .under consideration does not apprise us that we may find, from a search of the statement • of facts, anything more than a slight pre-, ponderance of the evidence going to show that plaintiff’s total incapacity was not permanent, a condition which, if found, would not war'rant us in disturbing the judgment. The proposition should at least apprise us that the finding of the jury complained of was so ■ contrary to the overwhelming weight or preponderance of the evidence as to be clearly wrong. In such case, should we find the proposition to be true, it would be our duty to reverse the judgment.

The proposition is also subject to the objection that it is too general, in that it does not specifically point out wherein the evidence preponderates against the verdict. Missouri, K. & T. Ry. Co. v. Patterson (Tex. Com. App.) 228 S. W. 119; Neill v. Pryor (Tex. Civ. App.) 222 S. W. 296; Lake v. Jones Lumber Co. (Tex. Civ. App.) 233 S. W. 1011; Cullen v. Emgard (Tex. Civ. App.) 44 S. W. 538; Straight v. Goodwin (Tex. Civ. App.) 157 S. W. 425; Noell v. Bonner (Tex. Civ. App.) 21 S. W. 553; Campbell v. Reagan (Tex. Civ. App.) 22 S. W. 824; Galveston, H. & S. A. Ry. Co. v. Cooper, 2 Tex. Civ. App. 42, 20 S. W. 990; Bennett v. La. & Tex. Lumber Co. (Tex. Civ. App.) 148 S. W. 1189; Conn v. Belk (Tex. Civ. App.) 26 S.W.(2d) 293; Thompson v. Smith (Tex. Com. App.) 248 S. W. 1070; Haskell v. Merrill (Tex. Civ. App.) 242 S. W. 331; Hopkins County Levee Imp. Dist. v. Smith (Tex. Civ. App.) 243 S. W. 793; Alexander v. La. & Tex. Lumber Co. (Tex. Civ. App.) 154 S. W. 235; Fulwiler v. Daniel (Tex. Civ. App.) 280 S. W. 348.

But it appears that we have a- discretion to consider the proposition, regardless of its defects, as was recognized in Duke v. Walker (Tex. Civ. App.) 17 S.W.(2d) 93. This court, in exercising its discretionary powers, has been inclined to pursue a policy of liberality in the matter of considering questions defectively presented. We have therefore construed appellant’s proposition now under consideration as attempting to present such a question of the insufficiency of the evidence as to entitle it to relief, and have accordingly examined the statement of facts.

We have reached the conclusion that there was evidence from which the jury was reasonably warranted in finding that plaintiff’s total incapacity, as to which no question is made, was permanent. The fact, as asserted by the second proposition, that plaintiff performed some work, is not conclusive of the question. Davies v. Tex. Emp. Ins. Ass’n (Tex. Com. App.) 29 S.W.(2d) 987; Winters Mut. Aid Ass’n v. Reddin (Tex. Civ. App.) 31 S.W.(2d) 1103, 1105; Fidelity & Casualty Co. v. Joiner (Tex. Civ. App.) 178 S. W. 806, 809; Great So. Life Ins. Co. v. Johnson (Tex. Com. App.) 25 S.W.(2d) 1093.

As said in Fidelity & Casualty Co. v. Joiner, supra, “It not infrequently happens that one suffering from injuries to his person performs duties pertaining to his occupation which he is wholly unable, in the reasonable and proper sense * * * to perform.” Appellee testified to the effect that he was unable to work and such work as he did was under the stress of necessity to make a living for his family. Dr. Pardue testified to his finding of facts and gave his opinion as to conditions of a permanent nature which, as evidence in connection with the other evidence, seems to us to support the finding of permanent total incapacity within the meaning of “total incapacity,” as declared in the decisions. Texas Emp. Ins. Ass’n v. Brock (Tex. Civ. App.) 26 S.W.(2d) 322; Texas Emp. Ins. Ass’n v. Wonderley (Tex. Civ. App.) 16 S.W. (2d) 386; Employers’ Liability As'sur. Corp. v. Williams (Tex. Civ. App.) 293 S. W. 210; Lumbermen’s Reciprocal Ass’n v. Wells (Tex. Civ. App.) 283 S. W. 208; Home Life, etc., Co. v. Corsey (Tex. Civ. App.) 216 S. W. 464; New Amsterdam Cas. Co. v. Harrington (Tex. Civ. App.) 11 S.W.(2d) 533.

Being of opinion that there was no reversible error, and that the judgment should be affirmed, it is accordingly'so ordered.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    MORGAN v. PETROLEUM CASUALTY CO.
    No. 8572.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1931.
    Rehearing Denied Tune 24, 1931.
    Smith & Smith, of Anson, for appellant.
    Knox W. Gilmore, of Houston, for appellee.
   SMITH, J.

This suit arose under the provisions of the Workmen’s Compensation Act wherein Bert Morgan, an employee, sought to recover compensation of the Petroleum Casualty Company, an insurer, for personal injuries received in the course of his employment by the Humble Oil & Refining Company, the subscribing employer. The injury occurred on August 16, 1927, but Morgan made no claim before the Industrial Accident Board until May 31, 1930, nearly three years after the injury occurred. The casualty company interposed a plea in abatement in limine setting up a plea of two-year limitation and the failure of the plaintiff to give notice of his injury within thirty days, and make claim for compensation within six months, of its occurrence, as provided by statute. The trial court sustained this plea and dismissed the suit. Morgan has appealed.

It is provided in the Workmen’s Compensation Law (article 8307, § 4a, R. S. 1925), concerning the time for giving notice of injury and filing claim for compensation, as follows: “Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the board.”

Appellant’s pleadings were sufficient to warrant a finding upon sufficient evidence that he complied with the requirement of notice of his injury, but that phase of the case need not be discussed here.

Appellant’s pleading concerning the filing of his claim for compensation before the Industrial Accident Board was as follows:

“Plaintiff never filed a claim for compensation, so far as his knowledge goes, until about the'31st day of May, 1930, as shown by a copy of said claim attached to plaintiff’s original petition and marked Exhibit ‘A,’ but plaintiff says that on the 2nd day after his injury and while he was in the town of Sonora under the treatment of the insured’s (employer’s) physician, said physician filled out certain papers and requested that the plaintiff sign them, stating to the plaintiff that it would be necessary for him to sign them so that he, said physician, could send the same in and it would enable the plaintiff to get compensation on account of his injury, plaintiff says that he relied upon the same being sent to the proper place, that he paid no further attention about filing papers and was not advised by anyone the importance of giving notice, filing claim for compensation, but plaintiff now says that the same was probably notice of injury and a claim for compensation to be presented to the Industrial Accident Board, but that he did not read the same, and did not know then or now what said papers contained.
“Plaintiff says that after he returned to Jones County that he remained at his father’s home from some time in September until the latter part of January, 1928, was confined to his bed a greater portion of that time; that he had been advised by the agents of the defendant that he could not recover compensation, but would be entitled to an operation; that after a lapse of a few months plaintiff thought his condition would likely get better, that he might recover without an operation and that he did not insist on presenting a claim to the Industrial Board for compensation,
“Plaintiff says that after a lapse of several months time he undertook to do light work on the farm and was forced to discontinue that work on account of his physical condition, that he then secured other light employment and continued trying to perform some labor until in the spring of 1980, his condition became so serious on account of the injury and as a direct result of said injury received on or about the 16th day of August, 1927, that plaintiff then filed his claim with the Industrial Accident Board for a total and permanent injury and disability.”

This pleading shows upon its face that appellant made no attempt to comply with the mandatory requirement of the statute that he file his claim for compensation with the Industrial Accident Board within six months from the date of his injury, or until nearly three years after that date, and that he was neither mentally nor physically incapacitated to make the claim.

Appellant questions the sufficiency of ap-pellee’s plea in abatement to raise the point urged here, which is, in effect, that the Industrial Accident Board and the trial court were without jurisdiction of appellant’s claim for compensation, because the same was not filed within the statutory period, and no excuse for the default was shown.

The pleading objected to took the form, and was so designated by appellant, of a “plea in abatement.” Appellant made no objection in limine to the form or substance of the plea, and participated in the hearing thereon. By this process he waived such objections, including the objection that the plea was not verified. 1 Tex. Jur. p. 158, § 114.

We are of the opinion that the plea in abatement can be given no other effect than a demurrer to appellant’s petition. If appellant’s petition failed to show jurisdiction of the court to determine the cause of action asserted, or affirmatively showed the absence of such jurisdiction, the objection to it on that ground could be presented in a plea in abatement, or. to the jurisdiction, as this was, just as effectively as by demurrers in an answer upon the merits.

But we are of the further opinion that controversial facts raising the issue of diligence to comply with the statutory requirement for filing claims for compensation before the Accident Board must be submitted to the jury in cases in which juries' have been demanded, regardless of the form or manner of pleading such issue. This right to a jury trial of that issue cannot be taken from either party by the subterfuge of a plea in bar or abatement presented to, and determined by, a trial court in a preliminary proceeding.

Of course, if such plea embraces other questions determinable by the court as matters of law, such as questions of jurisdiction, the trial judge is at liberty to act upon them, and, if they are controlling, may dismiss the ease by reason of his determination of them, notwithstanding the presence of the fact question in the plea.

But, if the determination of the fact question is essential to the disposition of the plea, or to the dismissal of the case upon that plea, it must go to the jury, and may not be determined by the court where a jury is demanded on the merits of the case. These rules must be applied to the plea in abatement in this ease.

It was asserted in the plea that appellant’s petition “shows upon its face” that his cause cannot be maintained because of the disclosed fact that he filed no claim for compensation with the Accident Board within the six-month period prescribed by statute, and alleged no excuse for such default; in short, that appellant’s petition showed that the court had no jurisdiction of the cause of action asserted. This plea must be considered as if it were in the form of a demurrer. Its sufficiency must be determined solely by the allegations in appellant’s petition, since any issue of fact thereon was for the jury and not for the court to determine.

We conclude that these pleadings showed an entire failure to file, or any attempt to file, the claim for compensation before the Industrial Accident Board, within the six months specifically provided by statute in such cases, and were equally void of allegations showing any excuse for such failure. This requirement of the statute is jurisdictional, and, in the absence of actual or attempted compliance therewith, neither the Industrial Accident Board nor the district court could take jurisdiction of the claim. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084; Bailey v. Texas Indemnity Ins. (Tex. Com. App.) 14 S.W.(2d) 798; Texas Employers’ Ins. Ass’n v. Hoehn (Tex. Civ. App.) 20 S.W.(2d) 263; Norwich Union Indemnity Co. v. Wilson (Tex. Civ. App.) 17 S.W.(2d) 68; Indemnity Ins. Co. of North America v. Jago (Tex. Civ. App.) 12 S.W.(2d) 817; Maryland Casualty Co. v. Lafield (Tex. Civ. App.) 29 S.W.(2d) 444; Texas Indemnity Ins. Co. v. Hollaway (Tex. Civ. App.) 30 S.W.(2d) 921; Texas Employers' Ins. Ass’n v. Shoemake (Tex. Civ. App.) 21 S. W. (2d) 583. This point could have been made by demurrer or by plea in abatement or jurisdiction, as was done below.

The judgment is affirmed.


author: HICKMAN, C. J.

text:
    LAND v. LAND.
    No. 874.
    Court of Civil Appeals of Texas. Eastland.
    May 29, 1931.
    Rehearing Denied June 26, 1931.
    J. S. Kendall, of Munday, for appellant.
    Williams & Bell, of Childress, for appellee.
   HICKMAN, C. J.

Appellee, Mary Gladys Land, is the surviving widow of Russell T. Land, deceased, who by his will made her sole beneficiary of his estate and independent executrix thereof without bond. The probate of.the will was contested by appellant, J. J. Land, through the county court and the district court. The contest was unsuccessful, and the judgment admitting the will to probate has become final. Pending the outcome of the contest of the will, P. O. Campbell was appointed temporary administrator. As such administrator he collected $10,000 on life insurance policies payable to the estate of the deceased. He also sold, under order of the probate court, a Eord automobile agency, including parts, accessories, etc. Appellant became the purchaser at the sale for $8,000.00 in cash. After the termination of the unsuccessful contest of the will, appellant filed a written complaint in the probate court in accordance with the provisions of article 3443, R. S. 1925, praying that appellee be required to give a bond as therein provided. The complaint alleged that there was a large indebtedness owing to appellant by the estate of Russell T. Land, deceased. Appellee waived citation on this complaint, and same was set down for hearing on July 7, 1930, but the hearing was by the court, and with the consent of all the parties, set over until July 21, 1930. On that date the application was granted, and appel-lee ordered to file a bond in the amount of the value of the estate as shown by the inventory and appraisement. The order requiring the filing of the bond did not limit the time within which same should be filed, but the evidence discloses that the county judge gave to appellee ten days within which to file the same. The bond was filed and approved within less than ten days from that date, and, from the order approving same, appellant perfected an appeal to the district court. He also appealed from the order approving the final report of E. O. Campbell as temporary administrator, and directing such administrator to turn over all funds and property in his hands to the appellee. He also appealed from an order of the probate court refusing his application for a grant- of letters of administration to him on the estate of Russell T. Land, deceased. All of the matters appealed from were tried as one suit in the district court, and, from a judgment favorable to appellee on each contention, and denying appellant any relief, an appeal has been perfected to this court.

Appellant presents six assignments of error. The first three assignménts complain of the action of the court below in approving the bond of appellee. The bond, as above noted, was required under the provisions of article 3443, R. S. 1925, which reads as follows: “When it is provided in a will that no action shall be had in the county court, except to probate and record the will and return an inventory of the estate, any person having a debt against such estate may, by written complaint filed in the conrt where such will was probated, cause all the persons entitled to any portion of such estate under the will or as heirs at law to be cited to appear before such court at some regular term and execute an obligation, for an amount equal to the full value of such estate as shown by the inventory and list of claims, such obligation to be payable to the county judge, and to be approved by him, and conditioned. that all obligors shall pay all debts that may be established against such estate in the manner provided by law.”

There is no contention that the bond furnished by appellee, and which was approved by the probate court, was not in the amount as provided in said article, or that it in any manner failed to comply with the terms and conditions thereof. The complaint seems to be directed more at the inventory and ap-praisement than at the bond itself. One item in the inventory was an item of $8,000 in cash, which was the proceeds of the sale of the Eord automobile agency by the temporary administrator. The appellee claims that, prior to the death of her husband, he had sold this business to appellant in satisfaction of the indebtedness owing by him to appellant. Appellant claims to be a creditor of the estate, and that the proceeds from the sale of this business should be administered with other assets of the estate. With this difference existing between appellee and appellant, the appellee was unwilling to admit in her inventory that this sum of $8,000 properly belonged to the estate, but the inventory did contain this recital: “There was an automobile business located at Munday in Knox County that the decedent at one time owned, but your Executrix alleges that said business was transferred to J. J. Land about September, 1929; that J. J. Rand took possession and control of said business, claiming it as owner and so continued up to the time of the appointment of a temporary administrator of decedent’s estate (but J. J. Land denies the same) which business was sold by the temporary administrator for the sum of $8,000.00, but your Executrix has never at any time claimed the said automobile business nor the proceeds of the sale of the same as any part of the estate of Russell T. Land, deceased, and that if the proceeds of said sale is at any time turned over to her she will accept the same and make such bond therefor as the Court may direct and hold it in trust for the true owner, and not as a part of the estate of decedent, until such time as a Court of competent jurisdiction shall determine the true ownership of same. $8,000.00”

This item was appraised by the appraisers at $8,000, and that entered into the total valuation of the estate. The bond was made in an amount equal to the total valuation, including that item. The contention that the reservation made in the inventory renders the bond void, is, to our minds, wholly untenable. The bond is a statutory, bond, and the condition thereof was that the obligors would pay all debts that might be established against the estate in the manner provided by law. We do not think there is any irregularity in the inventory and appraisement, but, if so, the obligation -of the bond was in no wise affected therfeby, and all contentions to the contrary are overruled.

The contention that the bond was not filed in time is without merit. The statutes do not provide any time within which such bonds shall be furnished. Article 3444, R. S., 1925, provides that the bond shall be executed “to the satisfaction of the county judge.” No duty whatever devolved upon appellee to file a bond until July 21st, the date the order was entered. In fact, the amount of the bond could not have been determined until that date, because the inventory and ap-praisement had not been filed theretofore. Appellee resided in Childress county, a distance of approximately 100 miles from the county site of Knox county, and, notwithstanding this fact, executed a bond and had the same presented to the probate judge and approved within less than ten days. The contention that this was not in compliance with the statutes and the orders of the court is not tenable.

The fourth assignment of error complains of the action of the court below in approving the final report of the temporary administrator and directing him to deliver all the property in his hands to the appellee, for the reason that the bond of the appellee was not sufficient. The same contentions were made under this assignment as to the sufficiency of the bond as those above noted, and are overruled for the reasons above stated.

The fifth and sixth assignments complain of the action of the probate court in refusing let? ters of administration to appellant. These assignments are based alone upon the contention that 'the bond of appellee was insufficient, and are overruled for the reasons above noted.

No other questions are presented. The record reflects commendable care and diligence on the part of the probate court and the at'torneys in administering this estate in compliance with the law.

No error is pointed out, and none appears on the face of the record. The judgment of the trial court will therefore be affirmed.


author: LANE, J.

text:
    DANIELS et al. v. SOUTHERN SURETY CO.
    No. 9544.
    Court of Civil Appeals of Texas. Galveston.
    April 28, 1931.
    Rehearing Denied May 28, 1931.
    Snell & Aynesworth, of Houston, for appellants.
    King, Battaile & Dutton, of Houston, for appellee.
   LANE, J.

On the 2d day of June, 1927, the Owen Service -Station was engaged in the business of an ordinary filling station, handling automobile tires, tubes, and other accessories, and selling gasoline and lubricating oil to those operating automobiles, motorbusses, and trucks, and in performing such other labors as are incident to the - business generally known as a filling station. It also operated an ice house where it dispensed ice in small quantities.

On said date Owen Service Station was a subscriber, as that term is used and understood in the Texas Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended), and held a policy issued to it under the provision of said act by the Southern Surety Company.

While said policy was in force and effect one Secex Daniels, an employee of the subscriber, while acting within the scope of his employment, received an injury on July 10, 1927, from the effects of which he died on the 14th day of October, 1927.

At the time Secex Daniels received his injuries his weekly wage was $20.19. He was under contract to work 7 days per week. The duties to be performed by him under his contract consisted, of handling ice, changing tires and tubes, filling gasoline tanks, and other duties incident to the operation of a filling and service station. At the time he suffered his injury Secex Daniels was engaged in the changing of an automobile tire.

In due time Mamie Daniels, wife of the deceased, gave due notice of such injury and death as required by law, and in due time filed her claim for compensation with the Industrial Accident Board of Texas.

On the 27th day of April, 1928, after due no-tiee*was given to all parties, the Industrial Accident Board entered its order upon the claim of Mamie Daniels as follows: “It has been made to appear to tlie satisfaction of the Board that Mamie Daniels, surviving widow of Secex Daniels, deceased, at the time of said fatal injury and death of Secex Daniels was separated from and living apart from him; that said separation had continued for a longer period <than three years immediately preceding the date of his said death and that said separation was due to abandonment of said deceased by the said Mamie Daniels, and said abandonment was without good cause on the part of said Mamie Daniels; and therefore the claim for compensation of said Mamie Daniels ought to be and the same is hereby denied and refused and so far as the claim of Mamie Daniels is concerned the said Southern Surety Company must be and is hereby in all things fully and finally acquitted and discharged from all liability on account of her said claim, and it is so ordered, adjudged and decreed by the said Board.”

On the 17th day of May, 1928, within twenty days after the entry of the above-mentioned order, the Industrial Accident Board, after due notice to all parties, reviewed the award formerly made by it. It set aside its former order, reciting that upon a reconsideration of the evidence of record, together with that submitted upon the later hearing, it was of opinion and finds that mistake and error was committed in the award of April 27, 1928, in that it found that Mamie Daniels had deserted her husband, Secex Daniels, deceased, without good cause, for a period in excess of 3 years. Such recital in the later order is followed by the following recitals: “Whereas, it now appears that this is error, and therefore said award of April 27th, 1928, ought to be and the same is hereby cancelled, annulled, set aside and held to be of no binding force or effect, and the following order ought to be and the same is here and now made and entered as the order of said Board, and it is so ordered, adjudged and decreed by the Board, to-wit.”

This is followed by awarding to the claimant, Mamie Daniels, $12.11 per week for 360 weeks, beginning on the 2d day of June, 1927, less the attorney’s fees which she had contracted to pay to her attorney, John N. Snell.

• Within 20 days after the last award was made, the Southern Surety Company gave due notice that it would not abide by such award, and within 20 days thereafter it filed its petition in the district court asking that the award be set aside.

The plaintiff made both orders of the Industrial Accident Board a part oi its petition. It then alleged that the awgrd made on the 17th day of May, 1928, is not supported by any evidence or facts sufficient to justify said award; that the Industrial Accident goard was without warrant in law or authority to make and enter any award subsequent to the entry of the award made by it on the 27th day of April, 1928.

Defendants, Mamie Daniels and her attorney, answered, setting up the facts stated in our preliminary statement, and other matters, which, if shown to be true, would entitle defendants to the award made, if the Board had authority to review its first award and make the last.

A jury was chosen to try the case, but the court, after he ascertained from the evidence that the deceased, at the time he was injured, was employed to work 7 days a week, and that he was at such time changing an automobile tire on Sunday, instructed the jury that, as it appeared from the uncontroverted /“testimony” that the injury producing the death occurred on Sunday, and that the deceased was at such time employed under an illegal contract, the defendants were not entitled to a recovery against the plaintiff. The jury returned the verdict as directed, and judgment was thereupon rendered for the plaintiff. Defendants have appealed.

We shall first dispose of appellee’s contention th'at neither the district court which tried this case, nor this court, had nor has jurisdiction to hear and determine the issues involved, in that the Industrial Accident Board of Texas had no jurisdiction to make the second award, because, should such contention be sustained, this appeal should be dismissed by this court for want of jurisdiction to hear and determine the issues presented.

As already stated, the Industrial Accident Board, on the 27th day of April, 1928, made an award in the matter against Mamie Daniels, denying her compensation from which no appeal was taken, and that on the 17th day of May, 1928, within less than 20 days after the making of the first award, the claim was reopened by. the board and an "award was then made in favor of the claimant. It is this last award the Southern Surety Company is seeking to have set aside.

By section 12d of article 8306, Revised Civil Statutes of 1925, it is provided that: “Upon its own motion or upon the application of any person interested showing a change of conditions, mistake, or fraud, the board at any time within the compensation period may review * ⅜ * or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall be only upon notice to the parties interested.”

It is well settled that, after an award allowing compensation is made and the time allowed by the law for carrying the matter before the courts for a trial de novo has elapsed, the Industrial Accident Board is without authority to reopen the matter and make a second or subsequent award, except upon a showing of changed conditions, mistake, or fraud, within the compensation period. U. S. Fidelity & Guaranty Co. v. Cooper (Tex. Civ. App.) 14 S.W.(2d) 342; Id. (Tex. Com. App.) 29 S. W.(2d) 971, and cases cited in the two opinions.

In the case cited, Cooper v. United States Fid. & Guaranty Co., 29 S.W.(2d) 971, 973, by the Commission of Appeals, approved by the Supreme Court, in referring to the article and section of the statute quoted, the court said:

“(1) A careful examination of the above article discloses that it only applies to cases where the Industrial Accident Board has previously made an award allowing compensation. It has no application whatever to cases in which the board has made an award refusing compensation.
“(2) In the ease at bar it is shown that Mrs. Cooper originally presented her application to the board within the time prescribed by law, and that the board duly acted thereon and refused compensation. Mrs. Cooper made no complaint of this action, and filed no suit in the district court within the time prescribed by law, to set aside this award. It, under the circumstances, therefore became final, and the Industrial Accident Board had no power or jurisdiction to pass on the question the second time, even if fraud, mistake, or changed conditions had been alleged and proven.
“(3) Since the Industrial Accident Board had no power or jurisdiction to pass on the question the second time, the district court acquired no jurisdiction by the filing of the instant suit.”

We are of opinion, however, that the authority of the Accident Board to reopen and review the facts and change its award, by which a claim for compensation is disallowed, is not lost until the prerequisite steps provided by law are truly taken to carry the matter to a court of competent jurisdiction for further adjudication or until the time for taking such steps has expired. Eor the reason that until such steps are properly and truly taken, or the time allowed in which they may be taken has expired, the award has not become final, and the board has not therefore lost its jurisdiction over the matter.

We think the clear implication of the language used by Judge Critz, when considered as a whole, is to hold that, in a case where no complaint is made of the action of the Accident Board in denying compensation, and when no suit is filed in the proper court within the time prescribed by law to set aside such award, the award would become final, and only in such event would it become final. He very clearly holds that the statute, section 12d, article 8306, relating to the board’s review of compensation award, does not apply where the board refuses compensation.

We hold that, at the time the Accident Board reviewed its first action in this case and made its second award, its former award had not become final, and it therefore had authority to make the second award; so holding, we overrule appellee’s contention.

We now come to a consideration of the contentions made by appellant for a reversal of the judgment.

Upon the trial of the cause in the district court before a jury, the following facts were agreed to: That on Sunday, July 10, 1927, Secex Daniels received the injury from which he died while in the employ of Owen Service Station, and while he was working in the capacity of service man for the station, his employer ; that at such time said employer was engaged in the business of an ordinary service station, handling automobile tires, tubes, and other accessories, lubricating oils, and gasoline ; that the employer also operated an ice house where ice was sold in small quantities; that Secex Daniels was at such time employed at a regular wage of $20.19 per week of 7 days; that his duties consisted of handling ice, changing automobile tires and tubes, filling gasoline tanks, and other duties incident to the operation of a filling and service station ; that at the time Secex Daniels received his injury he was engaged in the changing of an automobile tire.

After these agreed facts were offered and the parties had rested, the court gave the jury the following instruction: “It appearing from the uneontroverted testimony that the injury producing the death of Secex Daniels occurred on Sunday, July 10, 1927, and that the said Daniels was at such time employed under an illegal contract, and therefore the defendants are not entitled to recover, you will, therefore, return a verdict in favor of the plaintiff, Southern Surety Company.”

The jury returned its verdict as instructed, and judgment was accordingly rendered.

The substance of appellant’s contentions is, that the court erred in holding and in instructing the jury that the uncontroverted evidence showed that, at the time Secex Daniels received his injury, he was performing labor on Sunday under an unlawful contract and in violation of article 283 of the Penal Code of Texas, which provides that: “Any person who shall labor, or compel, force, or oblige his employees, * * * to labor on Sunday * * * shall be fined not less than ten nor more than fifty dollars.” Because the evidence did not show as a matter of law that the work being performed by the deceased was not a work of necessity such as is permitted by article 284 of said Penal Code, whereby it is provided that, “The preceding article shall not apply to ⅜ * * works of necessity,” and because such work as was being performed toy the deceased at the time of his injury was work incident to the business of his employer, the operation of which on Sunday is authorized by the provisions of article 287 of said Penal Code, we think appellant’s contention that the court erred in taking the case from the jury should be sustained upon both of the grounds urged. The mere fact that the contract is for the performance of work on all the seven days of the week does not, as a matter of law, constitute such contract an unlawful one, nor does the mere fact that the deceased changed an automobile tire for another on Sunday, whether under contract or otherwise, constitute such work a violation of the Penal Code as a matter of law.

The question as to whether or not the changing of the tire on Sunday was, under the attending facts and circumstances, a work of necessity was for the determination of the jury, since the statute has not nor has it undertaken to define what constitutes works of necessity permitted by its provisions to be performed on Sunday. There is no doubt that the performance of certain work on Sunday might under the surrounding circumstances constitute a violation of the Sunday law, while under other circumstances the performance of the same work would not be a violation of the law.

It is true that the Service Station, the employer of Seeex Daniels, was not only engaged in operation of what is commonly known as a filling station, performing those things incident to such business, but it is also true that it had for sale automobile tires, tubes, and accessories, but there is no intimation that any one connected with the business, either as owner or employee, sold or contemplated making sales of automobile tires, tubes, or any other automobile accessory on Sunday, nor is it so contended by appellee. The Service Station could have lawfully conducted every branch of its business during the six working days and on Sunday, except the sales mentioned. The fact that it had for sale articles the sale of which on Sunday was forbidden by law is no evidence that it was violating the Sunday law. So then the agreement that Seeex Daniels was working under a contract obligating him to work the entire 7 days of the week was by no m'eans an agreement that he was under contract to perform any labor in violation of law. The only pertinent inquiry is: Do the agreed facts show, as a matter of law as found by the court, that the changing of the automobile tire on Sunday was a violation of the Sunday law?

A showing that certain labor was performed on Sunday is not a showing that such performance was, as a matter of law, a violation of the Sunday law. To show that it was a violation of the law it must be shown, not only that it was performed on Sunday, but that its performance was forbidden by law. The circumstances calling for the changing of the tire in question are not shown. It can easily be imagined that such change was a necessity, and hence the labor performed to make- such change was labor of necessity, permitted to be done under the provisions of the law. The question as to whether such labor was under attending circumstances a work of necessity was one for the determination of the jury and not for the court.

Eor the reasons above expressed, we hold that the court erred in instructing a verdict for the defendant.

The writer is also of opinion that the changing of the tire was clearly an incident to the filling station business engaged in by the employer of deceased which was permitted under the provisions of the law.

Eor the several reasons above expressed, the judgment is reversed, and, as there are some defenses raised by the pleadings.of the plaintiff, appellee here, which were not disposed of, the cause is remanded.

Reversed and remanded.


author: JACKSON, J.

text:
    FIRST NAT. BANK OF ELECTRA et al. v. GUYER et ux.
    No. 3556.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 25, 1931.
    Rehearing' Denied May 13, 1931.

      Killough & Dotson, of Vernon, and C. P. Engelking, of Eleetra, for appellants.
    Storey, Leak & Storey, of Vernon, for ap-pellees.
   JACKSON, J.

This is an appeal from a judgment of the district court of Wilbarger county, overruling the pleas of privilege of the appellants, the First National Bank of Eleetra, Tex., and Edward Sehlaffke, to be sued in Wichita county, the county of their residence.

The suit was instituted in the district court of Wilbarger county by appellees Jesse C. Guyer and his wife, Emma Guyer, to cancel a promissory note for the sum of $9,424.30, executed by them and payable to the First National Bank of Eleetra, at Eleetra, Wichita county, Tex., and to cancel a deed of trust given by appellees covering subdivision 122 of the Waggoner Colony lands in Wilbarger county, to secure the payment of said note. The appellees allege that the deed of trust lien is void because the land above described is and was, at the time of the execution of the deed of trust, their homestead. They set out in detail the facts upon which they rely to have such asserted -lien cancelled.

The appellants interposed their respective pleas of privilege to be sued in Wichita county, where they had their domicile and where the note was payable.

The appellees filed their controverting affidavit, in which they state that the main purpose of their suit is to obtain a decree of court declaring said deed of trust lien void on the ground that said land was at the time of the execution of said deed of trust, and still is, their homestead; that they are husband and wife; that appellants have advertised said land to be sold in Wilbarger county; that appellees seek in.their suit to have said deed of trust, in so far as it attempts to fix a lien upon said land, which is situated in Wilbarger county, Tex., and is their homestead, adjudged' to be void and of no force and effect.

The appellants each filed an exception to the sufficiency of the controverting affidavit, which is, in effect, a general demurrer. These demurrers were overruled', and the court, after hearing the evidence, entered his judgment overruling the respective pleas of privilege of the appellants and retained jurisdiction of the case, from which action of the court this appeal is prosecuted.

The appellants challenge as error the action of the trial court in overruling their respective demurrers to the controverting af-davit of the appellees, because said controverting affidavit did not set out any exceptions contained in article 1995, R. S., authorizing the suit to be maintained out of the county of their residence, and did not allege that the moneys evidenced by the note was not the purchase price for the land.

In our opinion, the controverting affidavit was sufficient as against a general, demurrer. Sims v. Trinity Farm Construction Co. (Tex. Civ. App.) 28 S.W.(2d) 856.

The appellants challenge as error • the action of the trial court in overruling their respective pleas of privilege because the evidence was insufficient to show that the money evidenced by the note was not for the purchase price of the land.

The testimony is without controversy that the land is situated in Wilbarger county, Tex.; that the appellees are husband and wife, were occupying the land as their homestead at the time of the execution of the deed of trust, are still residing on said premises as their homestead; that the appellants had advertised the land under the deed of trust to be sold in Wilbarger county, Tex. There is testimony to the effect that the purchase money for the tract of land involved in this suit had been paid before the execution of the note and deed of trust sought to be canceled.

Under the facts disclosed by this record, we do not feel warranted in holding that the judgment of the trial court was without support in the testimony.

“Subdivision 14, art. 1995, Rev. St. 1925, provides, among other things, that suits ‘to remove incumbrances upon the title to land * * * must be brought in the county in which the land, or a part, thereof, may lie.’ Under this statute, it is held that a suit to cancel a lien created by a deed of trust on land should be brought in the county where the land is situated. Moore v. Byars (Tex. Civ. App.) 47 S. W. 752; Pioneer Savings & Loan Co. v. Peek, 20 Tex. Civ. App. 111, 49 S. W. 160; Clarke v. A. B. Frank Co. (Tex. Civ. App.) 168 S. W. 492; Palmer v. Jaggaers (Tex. Civ. App.) 180 S. W. 907.

“The language of subdivision 14 above quoted is held to require that suit must be brought in the county where the land lies, and that whether the allegations of a petition are sufficient to fix venue under said subdivision is a question of íaw to be determined by the court. Smith et al. v. Abernathy (Tex. Civ. App.) 6 S.W.(2d) 147; Wood et al. v. Tandy (Tex. Civ. App.) 299 S. W. 282; Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328.” Fidelity Union Fire Ins. Co. v. First National Bank (Tex. Civ. App.) 18 S.W.(2d) 800, 803.

The judgment of the trial court is affirmed.


author: FLY, C. J.

text:
    SCHUMANN v. JENKINS et al.
    No. 8625.
    Court of Civil Appeals of Texas. San Antonio.
    May 20, 1931.
    Rehearing Denied June 24, 1931.
    John C. Hoyo and Lewis E. Bartlett, both, of San Antonio, and O. E. Threlkeld, of Se-guin, for appellant.
    Church & Graves, Meritt Steger, and Douglas N. Lawley, all of San Antonio, for appel-lees.
   FLY, C. J.

This appeal involves one point: Was a certain electrical machine attached to the realty in such a manner as in law to become a part thereof?

This suit was based on a promissory note executed by Mrs. John L. Jenkins for $620, in payment for a Westinghouse farm light plant, which was secured by a chattel mortgage on such plant.

There is no statement of facts, and the findings of fact of the trial judge must necessarily be accepted by this court as true. The conclusions of the trial judge show that the lighting plant was purchased by Mrs. Jenkins from appellant, and she gave him a mortgage on the machinery to secure the payment of her note. There was nothing to indicate the location or description of the real estate on which the same was to be placed. The mortgage does not disclose where Mrs. Jenkins lived, nor where her real estate was situated, if she owned any realty. Mrs. Annie E. Ohittim was an innocent purchaser for value of certain real estate, together with all improvements thereon, without notice of the claim of appellant to the lighting machine or plant.

It is provided in article 5498, Revised Statutes, that in order to fix a lien on machinery or other property attached to real estate it is necessary for the mortgage to describe the real estate to which the chattel is attached as well as the chattel itself, and to recite on the back of the instrument that a lien was claimed on a chattel so attached. That article was not complied with. If attached to the realty, no lien arose by reason of the chattel mortgage, and Mrs. Chittim was an innocent purchaser.

We adopt the following findings of fact, as to the attachment of the property to the real estate: “That said Westinghouse farm light plant consists of a combination gasoline engine and an electric generator, cable from generator to batteries, and storage batteries; that, -to properly house said plant, defendant Mrs. Jenkins caused to be constructed a small wooden frame house about nine feet square, and built therein a reinforced concrete floor with a specially constructed raised base about two feet high and eighteen inches square at the top, from the top of which base protruded three bolts for the bolting of said gas engine generator to said base; that said engine and generator were firmly fastened to said base by means of three bolts; that there was built into said concrete floor and said base a metal conduit to carry the cable from the generator through the base and under the floor to the batteries; that said cable connected with said batteries and said batteries were connected by wire with the house and other buildings on said premises; that said concrete floor and base were constructed at the suggestion and with the knowledge of plaintiff, who installed said plant; that said lighting plant weighs approximately three hundred pounds; that said plant, sold by plaintiff to the defendant Mrs. John L. Jenkins, became a fixture and a part of the realty.”

A fixture has been defined, in the case of Hutchins v. Masterson, 46 Tex. 554, 26 Am. Rep. 286, as follows:

“The weight of the modern authorities establishes the doctrine that the true criterion for determining whether a chattel has become an immovable fixture, consists in the united application of the following tests:
“1st. Has there been a real or constructive annexation of the article in question to the realty?
“2d. Was there a fitness or adaptation of such article to the uses or purposes of the realty with which it is connected?
“3d. Whether or not it was the intention of the party making the annexation that the chattel should become a permanent accession to the freehold? — this intention being in-ferable from the nature of the article, the relation and situation of the parties interested, the policy of the law in respect thereto, the mode of annexation, and purpose or use for which the annexation is made.
“And of these three tests pre-eminence is to be given to the question of intention to make the article a permanent accession to the freehold, while the others are chiefly of value as evidence as to this intention.” See Moody v. Aiken, 50 Tex. 74; Willis & Bro. v. Morris, 66 Tex. 628, 1 S. W. 799, 59 Am. Rep. 634.

That definition has been adopted in a number of Texas decisions, among the number being Jones v. Bull, 85 Tex. 136, 19 S. W. 1031, which sustains the view taken by the trial judge, that the plant was a fixture. We think the tests applied in the two cases last cited were fully met by the facts in this case.

The judgment is affirmed.


author: PLEASANTS, G. J. GRAVES, J.

text:
    HARDIN LUMBER CO. v. SHEPHERD et al.
    No. 9493.
    Court of Civil Appeals of Texas. Galveston.
    May 21, 1931.
    Rehearing Denied June 18, 1931.

      Ross, Wood, Lawler & Wood, Ralph R. Wood, and Wm. S. Bell, all of Houston, for appellant.
    A. D. Dyess and Paul Strong, both of Houston, for appellee Mrs. Shepherd.
    Winfree & Weslow and P. P. Beadle, all of Houston, for appellee Eternit, Inc.
    Pulbright, Crooker & Preeman and Chas. A. Perlitz, Jr., all of Houston, for appellees Cox & Blackburn.
   PLEASANTS, G. J.

This suit was brought by appellee Mrs. Shepherd against appellant and a number of other defendants, who are appellees herein and will be hereinafter named, to adjudicate and settle the rights of plaintiffs and each of the defendants arising out of a building contract for. the construction of a duplex residence upon the homestead of Mrs. Shepherd, which contract was duly made and executed by Mrs. Shepherd and the defendant contractor, Pearce, and its faithful performance guaranteed to Mrs. Shepherd by the appellant.

The following sufficient statement of the substance of all 'of the pleadings filed in 'the case is largely copied from appellant’s brief:

“Plaintiff, Mrs. Shepherd, alleges in her petition that she entered into a written contract with the defendant E. Pearce by which the said E. Pearce, as contractor, agreed to construct for her a two-story brick veneer duplex dwelling house for the contract price of Seventy Nine Hundred ($7,900.00) Dollars, Thirty Four Hundred ($3,400.00) Dollars of which was to be paid in cash, and Forty Five Hundred ($4,500.00) Dollars to be evidenced by a first lien note, the cash consideration being payable in installments, Eight Hundred and Fifty ($850.00) Dollars when the contract was signed, Eight Hundred and Fifty ($850.00) Dollars when sub-floor was down, Eight Hundred and Fifty ($850.00) Dollars when all framing was up, and Eight Hundred and Fifty ($850.00) Dollars when roof was ready for shingles, and the balance of Forty Five Hundred ($4,500.00) Dollars evidenced by the noté when the job was completed and accepted by plaintiff, the said contract stipulating that E. Pearce was to give plaintiff a letter from Hardin Lumber Company guaranteeing all bills would be paid according to plans and specifications. Plaintiff further alleged that on or about October 25, 1928, Hardin Lumber Company delivered to her its Letter of Guaranty by the terms of which it guaranteed the payment of all bills for labor and material according to plans and specifications, said Letter of Guaranty being in words and figures as follows:

“ ‘Houston, Texas, October 25,1928.'
“ ‘Mrs. C. F. Shepherd, City.
“‘Dear Madam: For and in consideration of your making the payments as specified in your contract with E. Pearce direct to us, we will guarantee the payment of all bills for labor and material covering work done according to plans and specifications, of your two story brick-veneer duplex to be erected on lot five, block nine, Arbor Street, Riverside Addition, Houston, Texas.
“ ‘Said payments to be made as follows: Thirty Four Hundred ($3,400.00) Dollars cash and a first lien note of Forty Five Hundred ($4,500.00) Dollars, Eight Hundred and Fifty ($850.00) Dollars to be paid when contract is signed, Eight Hundred and Fifty ($850.00) Dollars when sub-floor is down, Eight Hundred and Fifty ($850.00) Dollars when all framing is up, and Eight Hundred and Fifty ($850.00) Dollars when roof is ready for shingles, and balance of Forty Five Hundred ($4,-500.00) Dollars when job is completed.
“ ‘Tours truly,
“ ‘Hardin Lumber Company,
“ ‘J. H. Furlong, Secy.’
“Plaintiff further alleged the payment of the installments of cash provided for under contract to Pearce by checks which were endorsed to the Hardin Lumber Company or the proceeds thereof paid to the Hardin Lumber Company. Plaintiff further alleged that the house was in due time constructed by defendant E. Pearce substantially in accordance with plans and specifications; that the plaintiff authorized additional extras which were supplied by Pearce and that she was indebted to Pearce in the additional sum of Two Hundred Thirteen and 70/100 ($213.70) Dollars. Plaintiff further alleged that through one Fred T. Wilson she had financed the Forty Five Hundred ($4,500.00) Hollar note called for in her contract with Pearce, paid the brokerage necessary to acquire said loan, had executed and delivered all papers incident thereto, and said lender at all times stood ready, able and willing to turn over to plaintiff and to said Pearce and to each of the defendants therein the proceeds of said loan upon the defendant E. Pearce, as contractor, and Hardin Lumber Company delivering receipts of all outstanding laborer’s and mate-rialmen’s claims and also stood ready and able to pay to said Pearce and to said Hardin Lumber Company the amount due for extras. That the following materialmen, as she was informed and believed, were unpaid in the following amounts and that defendants Pearce and Hardin Lumber Company had not furnished receipts and releases therefrom:
Houston Wallpaper and Paint Co., 228
Hallas. $228.70
O. E. Magee. 80.00
E. L. Magee. 18.00
L. A. McCracken. 18.70
Cox & Blackburn. 500.00
Bert Lindsey, a/e plumbing. 530.00
Bert Lindsey, a/e tinner,. 37.00
Eternit Inc., a/c roofing,. 250.00
Total.$1,612.40
“Plaintiff alleged that the property on which the improvements were constructed was the homestead of herself and minor children, was not subject to the liens or claims of 'Said materialmen and sub-contractors, and that the only lien to which her property was subject was the Forty Five Hundred ($4,-500.00) Hollars called for in her contract evidenced by the note held by the client of the said Fred T. Wilson, and further alleged that defendant Cox & Blackburn had attempted to file a lien against plaintiff’s property, and that the other defendants were threatening to file, liens, all of which, if filed, were void and of no effect, and plaintiff alleged that if her rights were protected it was agreeable that she pay all accounts due said material-men, laborers and sub-contractors, aggregating the sum of Sixteen Hundred and Twelve and 40/100 ($1,612.40) Hollars, out of the funds still remaining' under the control of this plaintiff but in the hands of said Fred T. Wilson, upon plaintiff’s property being declared free of liens save and except the Forty Five Hundred ($4,500.00) Hollar note held by the said Fred T. Wilson. Plaintiff alleged tender into court of the proceeds of the loan procured from Fred T. Wilson and the further sum of Two Hundred Thirteen and 17/100 ($213.17) Hollars covering extras, and prayed that such sums be distributed between the said defendants as their interests appeared, and that all purported liens against plaintiff’s property except the liens securing the Forty Five Hundred ($4,500.00) Hollars be cancelled.
‘Defendants O. E. Magee and E. L. Magee filed no pleading.
‘Defendant Eternit Inc. filed answer and cross-action in which, omitting formal parts of the pleading, said defendant and cross-plaintiff alleged the contract between Pearce and plaintiff, Mrs. O. F. Shepherd, as alleged by plaintiff, specifically pleaded the Letter of Guaranty, alleged the payments of the cash consideration as was done by plaintiff, al-leg^d the loan made by plaintiff through Fred T. Wilson, alleged that under written contract with E. Pearce, which was attached to its pleading, it furnished and applied asbestos shingle roof to plaintiff’s improvements and alleged that E. Pearce by virtue of his contract, and Hardin Lumber Company by virtue of its guaranty, became obligated to pay it the sum of Two Hundred Fifty Three and 95/100 ($253.95) Hollars. Said cross-plaintiff prayed for judgment against E. Pearce, and Hardin Lumber Company for the amount of its debt and further prayed that its judgment against defendants E. Pearce and Hardin Lumber Company, if procured, be paid from the funds tendered into court by plaintiff.
“E. A. Cox and 'E. A. Blackburn filed answer and cross-action which, omitting the formal parts, alleged the contract between E. Pearce and plaintiff Mrs. C. F. Shepherd, specifically pleaded the letter of guaranty, alleged that under contract with B. Pearce-it furnished frigidaire for which it was due the sum of Five Hundred ($500.00) Hollars, alleged that on or about March 13, 1929, it notified plaintiff by letter in writing by registered mail of its claim and subsequently filed affidavit to fix mechanic’s lien. It prayed for judgment against Mrs. C. F. Shepherd, E. Pearce, and Hardin Lumber Company and for foreclosure of its mechanic’s lien and for proportion of the sum tendered into court by plaintiff, Mrs. C. F. Shepherd.
“Houston Wallpaper and Paint Company filed plea of intervention, alleging that it furnished E. Pearce with wallpaper and paint which went into the construction of plaintiff’s improvements to the extent of Two Hundred Twenty Eight and 70/100 ($228.70) Hollars; that the payment of said amount was guaranteed as alleged^ by plaintiff, and that defendant E. Pearce and Hardin Lumber Company had refused to pay the same or any part thereof, and said intervenor prayed judgment of the court and general and special relief.
“Bert Lindsey filed plea of intervention in terms the same as that of Houston Wallpaper and Paint Co., alleging that he had furnished E. Pearce with plumbing and tin work to the extent of Five Hundred and Sixty Seven ($567.00) Hollars, and prayed judgment of the court and for general and special relief.
“Defendant L. A. McCracken filed an answer alleging that plaintiff had no claim against said defendant and alleging that he had furnished- E. Pearce with extra wiring for which he was entitled to recover the sum of Eighteen and 70/100 ($18.70) Dollars. Said defendant prayed judgment against E. Pearce and plaintiff, Mrs. C. F. Shepherd, for the sum of Eighteen and -70/100 ($18.70) Dollars.”

The defendant, appellant, after a general demurrer and special exception to plaintiff’s petition, answered by a general denial, and specially pleaded that it was beyond the charter powers of appellant to issue or execute letters or contracts of general guaranty for the' performance of building contracts by the contractor, and, if any such contract was made by any officer of the appellant company, it was ultra vires and void; that its secretary, J. H. Furlong, who executed the guaranty contract .pleaded and relied on by defendants, had no authority to bind defendant by such instrument, and that, if such authority existed, appellant was released from the obligation of the guaranty because of the failure of plaintiff to make the cash payments to appellant, as provided in the letter of guaranty, and because the consideration for such guaranty had failed, in that, after its execution, the contractor, Pearce, for the purpose of receiving advances made to him by appellant to pay for the material and labor necessary in the construction of the building, with the knowledge and consent of plaintiff, assigned and transferred to appellant the whole amount of the consideration agreed to be paid him by the plaintiff in his contract with her for the construction of the building constituting the subject-matter of the contract, and the material so furnished Pearce and the necessary advances made by appellant to him were in excess of the consideration agreed to be paid by plaintiff for the construction of the building.

By cross-action against all of the adverse parties to the-suit, the appellant alleged the execution by plaintiff, under her contract with Pearce, of the note for $4,500 dated November 22, 1928,.and payable to Pearce or his order 90 days after date, and, second, by the statutory liens given for the protection of contractors, mechanics, materialmen, and labor, and also by an express contract lien given by plaintiff; that said note and the lien securing it had been transferred and assigned by Pearce to appellant, who was now the legal holder and owner thereof; that the note w%s past due and unpaid, and had been placed in the hands of an attorney and suit filed thereon, and appellant was entitled to recover thereon, in addition to the principal and interest due upon the note, the further sum of 10 per cent, attorney’s fees upon such principal and interest, as stipulated in the note, and also the further sum of $457.94 for extras furnished Pearce by appellant under the provision of plaintiff’s contract with Pearce.

The prayer of appellant is that the plaintiff and other parties herein before named take nothing in their suit against it, “and that upon a final hearing hereof this defendant and cross-plaintiff have and recover. of and from the plaintiff jVtrs. O. F. Shepherd the amount of her debt- as evidenced by the note hereinabove pleaded, plus interest and attorney’s fees, and plus such amount of extras as shall be shown to be owing by the said plaintiff, Mrs. O. F. Shepherd, to the defendant E. Pearce and all costs of court, and further, that the contractors, mechanics, materialmen and laborers lien and deed of trust lien securing the payment of said indebtedness be foreclosed upon the above described land and premises and said land and premises decreed sold as under execution in satisfaction thereof, and that the liens and claims, if any, of all other defendants be can-celled and held for naught, and cross-plaintiff further prays for judgment against E. Pearce in the sum of $457.94, together with legal interest thereon, and for judgment over against the said defendant E. Pearce for any amounts, if any, which may be recovered by any of the parties hereto against this defendant and cross-plaintiff. This defendant and cross-plaintiff further prays for all costs of court, and for such other and further relief, general and special, to which it may be entitled at law or in equity.”

Cross-plaintiff Eternit, Inc., filed supplemental petition in answer to cross-action of defendant Hardin Lumber Company, pleading that, the plaintiff, Mrs. C. F. Shepherd, having relied upon said letter of guaranty, defendant Hardin Lumber Company, having received all the consideration for its guaranty, was estopped to plead ultra vires, and that it was within the charter powers of defendant Hardin Lumber Company to enter into said letter of guaranty.

The supplemental petition of Eternit, Inc., was adopted by defendants Cox & Blackburn and by plaintiff, Mrs. C. F. Shepherd.

The trial in the court below without a jury resulted in a judgment in favor of each of the defendants, except the appellant, against the plaintiff, Mrs. Shepherd, for the amount of their respective claims to be paid out of the $4,500 due upon the note of plaintiff for that amount held by appellant, and a judgment in favor of Mrs. Shepherd against appellant for the respective amounts so adjudged against her.

The court further adjudged and decreed “that none of the defendants as cross-plaintiffs have any cause of action whatsoever against the plaintiff Mrs. Shepherd, save and except as to the $4500.00 in which she is still indebted to the Hardin Lumber Company, less the amount of cross-plaintiffs’ respective claims, and that none of said cross-plaintiffs have any lien whatsoever on plaintiff’s property described (in the pleadings). * * *

“That the plaintiff, Mrs. C. E. Shepherd, shall pay to each of the cross-plaintiffs herein named the amounts of their respective judgments against her out of the $4500.00 proceeds from the loan procured from Ered T. Wilson, or, should said loan not be consummated, shall personally pay to the cross-plaintiffs the amounts of their respective judgments against her and the remainder of said sum of $4,500.00, together with Two Hundred Three and 70/100 ($203.70) Dollars covering extras set out in paragraph IV of plaintiff’s petition, upon which credit in the sum of Ten ($10.00) Dollars was shown to apply, shall be paid by the plaintiff, Mrs. C. E. Shepherd to the Hardin Lumber Company as the balance due 'by her on account of the note in the sum of $4,500.00 now held by the Hardin Lumber Company; whereupon, the said Ered T. Wilson and his principal shall become subrogated to all the rights and the liens now held by the Hardin Lumber Company as the holder of said $4,500.00 note, the amount to be received by the Hardin Lumber Company out of the proceeds of said loan from the said Fred T. Wilson, or in default of the consummation of said loan to be received from the plaintiff and cross-defendant Mrs. C. E. Shepherd, in full satisfaction of all the rights, titles, interests and liens of the said Hardin Lumber Company being the sum of Three Thousand-Ninety One and 30/100 ($3,091.30) Dollars.”

There is no material conflict in the evidence. The contract between Pearce and Mrs. Shepherd for the construction of the building and the letter of guaranty contained in plaintiff’s petition before set out were introduced in evidence. This contract is as follows:

“Houston, Texas, Oct. 24th, 1928.
“Contract between Mrs. C. F. Shepherd and E. Pearce, to build a two story, brick veneer, on lot number five (5) in block number nine (9) Arbor street, Riverside Addition, Houston, Texas, for the sum of Thirty Pour Hundred ($3400.00) Dollars cash, and first lien note of Forty Five Hundred ($4500.00) Dollars. Eight Hundred Fifty ($850.00) Dollars to be paid when the contract is signed and Eight Hundred Fifty ($850.00) Dollars when the sub-floor is down and Eight Hundred Fifty ($S50.00) Dollars when all framing is up and Eight Hundred Fifty ($850.00) Dollars when roof is ready for shingles and balance of Forty Five Hundred ($4500.00) Dollars when job is completed and accepted by Mrs. O. F. Shepherd, E. Pearce is to give you a letter from Hardin Lumber Company, guaranteeing all bills to be paid according to plans and specifications.
“[Signed] E. Pearce, Contractor.
“Mrs. C. F. Shepherd, Owner.”

At the request of appellant, the trial court made and filed conclusions of fact and law. These findings of fact include the following:

“I further find that the Hardin Lumber Company, in this transaction and in many other transactions, financed the construction contracts made by E. Pearce, the consideration, therefor in this instance being the obligation of the said E. Pearce to purchase from the Hardin Lumber Company all- building materials which said company was able to furnish necessary for the construction of the work contracted to be done by the said E. Pearce, and the profits which the Hardin Lumber Company made on account of the sale of such materials.”

The court further finds that the $4,500 note provided for in the contract and a mechanic’s lien on the property to secure the payment of the note were executed by Mrs. Shepherd on November 22, 1928, and delivered to the contractor, Pearce, and by him transferred and delivered to appellant. This transfer of the note and lien to appellant was filed for record in the office of the county clerk on January 19, 1929, and duly recorded in the proper record book.

The court also finds that the cash payments called for in Mrs. Shepherd’s contract with Pearce were made to Pearce in accordance with the contract, and appellant received the benefit of such payments under its contract with Pearce. (

ITurther findings of the court are as follows:

“I find that defendant Hardin Lumber Company furnished to E. Pearce material which went into the construction of improvements for Mrs. Shepherd, totaling the sum of $3,971.40, and cash in the sum of $4,057.79, all of which went to pay orders drawn by E. Pearce ppon said fund for the payment of payroll for laborers, sub-contractors, and material men furnishing labor and material in said job. * * ⅜
“That each of said interveners, with funds still remaining in the hands of the plaintiff due by her as a part of the contract price, now evidenced by the note held by the Hardin Lumber Company, gave plaintiff notice that their respective claims remained unpaid for the purpose of fixing their respective liens against said funds' still remaining due on said contract by plaintiff. I further find that plaintiff, Mrs. C. F. Shepherd, received notice of the claim of Cox & Blackburn on March 13, 1929, and that subsequent thereto and within the time permitted by law, from the maturity of its claim, defendants Cox & Blackburn filed an affidavit in the Mechanic’s and Materialmen’s lien Records of Harris County, Texas, claiming a lien on the property owned by Mrs. Shepherd and herein-above described. . I find that this notice of Cox & Blackburn was given to Mrs. Shepherd subsequent to the assignment and order from defendant E. Pearce to Hardin Lumber Company.
“I further find that none of the material-men and sub-contractors who are intervenors herein and are above listed, excepting defendant Hardin Lumber Company, had any notice prior to the time they furnished material and labor to E. Pearce, of the letter executed by Hardin Lumber Company and addressed to plaintiff, Mrs. O. F. Shepherd, and that none of said claimants relied thereon in furnishing material to defendant E. Pearce.
“I find that plaintiff, Mrs. C. F. Shepherd, was a widow at the time she acquired the title to the above described land, and was a widow at the time she executed all the papers here-inabove set out. I further find that she is the head of her family with minor children, and that they now reside in the house constructed under said contract, occupying the same as their homestead. I further find that she never executed any mechanic’s and material-man’s lien or deed of trust other than as hereinabove set out.
“I find that the improvements were constructed by defendant E. Pearce for plaintiff, Mrs. C. F. Shepherd, substantially in accordance with plans and specifications.
“I find- that plaintiff, Mrs. O. F. Shepherd, owes, over and above the contract price, an additional sum of Two Hundred Three and 70/100 ($203.70) Dollars for extras, which she has at all times stood ready, able, and willing to pay upon defendants Hardin Lumber Company and E. Pearce performing their obligations under their said contract with her.
“I find that none of said persons served notice upon Mrs. C. F. Shepherd of their claims prior to the payment by her to E. Pearce of all cash due the said E. Pearce under her contract, or prior to the assignment of the $4;500.00 note from E. Pearce to Hardin Lumber Company, or prior to the order given by E. Pearce, drawn on plaintiff Mrs. Shepherd, in favor of Hardin Lumber Company, and that all sums due by Mrs. Shepherd under her contract, including the $4,500.-00 had been assigned to Hardin Lumber Company prior to the receipt of any notice from any of said claimants. I further find that none of said claimants, except Cox & Blackburn, have filed affidavits or attempted to fix a lien against the property of the plaintiff, Mrs. C. F. Shepherd.”

Without discussing or setting out in detail the various assignments and propositions presented in appellant’s brief, we have reached the conclusion that, upon the pleadings and the facts found by the trial court, the judgment cannot be upheld. The pleadings of none of the defendants appellees, except the appellees Cox & Blackburn, claim any lien upon the property of Mrs. Shepherd; their only claim against plaintiff being such as might inure to them by her payment to the contractor of money due him under his contract after notice to her that the contractor had not paid the claimants for supplies or labor furnished him by the claimants in the construction of the building. Such pleadings wholly fail to allege any compliance with the necessary requirements of the statutes to fix a lien upon plaintiff’s property, and obviously do not seek a judgment establishing such lien, and the facts found by the trial court negative the existence of any such lien. The claim against plaintiff is based entirely upon the claim that she has in her hands money due the contractor, Pearce, which the defendant appellees are entitled to have her apply to the payment of their respective claims, which plaintiff in her pleading graciously consents to do if she is protected pro tanto against appellant’s right to enforce the payment of the $4,500 note.

In view of the undisputed evidence and the findings of the court above set out, the plaintiff owed the contractor, Pearce, nothing at the time the defendant appellees notified her of their respective claims against him. Long prior to the time the notice of these claims was given, the plaintiff, Mrs. Shepherd, all of the money due by her to Pearce, the contractor, and the note and mechanic’s lien provided for in the contract, had been paid and delivered by her to Pearce, and transferred and delivered by him to appellant. The trial court expressly finds that the value of the material furnished by appellant which went into the construction of thé building and the cash advances made by appellant to Pearce to pay for labor and for other material furnished him in the construction of the building exceeded the amount due by Mrs. Shepherd under her contract ■with Pearce. Upon this state of the pleadings and the facts found by the trial court we fail to see any legal or equitable ground upon which a judgment in favor of defendant appellees for the payment of their claims out of the note held by appellant can be sustained. Our conclusion upon this question seems so obviously just and sound that citation of authority in its support seems to us unnecessary. The same question, however, was before this court in the case of South Texas Lumber Oo. v. Concrete Construction Co., 139 S'. W. 913, 914. In deciding the cited case, Justice Reese, speaking for this court, said: “The assignment of Van De-mark & Grady to the South Texas Lumber Company operated to transfer completely and absolutely to it all money due, or to become due, under the contract, and thereafter Armstrong [the owner] was not authorized and could not be required to pay any part of the money to any one else. By his acceptance, and even without such acceptance, by notice to him of the assignment, he became bound to pay to the lumber company. There is no question of lien of any kind on the property, nor on the fund, so far as Armstrong is concerned. Armstrong owed, not Van Demark & Grady, but the South Texas Lumber Company, their assignees.”

To like effect are the decisions in the cases of Beilhartz v. Illingsworth, 62 Tex. Civ. App. 647, 132 S. W. 106, and Texas Glass & Paint Co. v. Southwestern Iron Co. (Tex. Civ. App.) 147 S. W. 620.

If the pleadings of any of the defendants appellees be construed as a claim of a direct liability to such cross-plaintiff by appellant on its letter of guaranty to Mrs. Shepherd, the trial court correctly refused to render Judgment fixing such liability.

Upon the face of the letter none of these defendants appellees were parties to the contract of guaranty. It is not a general letter of guaranty made or intended for the benefit of any person other than the addressee, Mrs. Shepherd, and under the undisputed evidence was accepted by Mrs. Shepherd in lieu of a bond by the contractor to protect her in the faithful performance of the contract by Pearce and the payment by him of all sums due for labor and material furnished him in the construction of the building. If, instead of procuring the guaranty of appellant, the contractor had executed a bond by which he and his sureties bound themselves that he would discharge and pay all bills for material or claims for labor, and discharge all liens and all claims whatsoever arising from furnishing material or labor for the erection and completion of said building, it is well settled there is no such privity of contract between the maker of such bond and persons who might furnish material or labor to the contractor in carrying out the terms of his contract as would entitle them to maintain a suit upon the bond. Oak Cliff Lumber Co. v. American Indemnity Co. (Tex. Civ. App.) 266 S. W. 429; General Bonding & Cas. Ins. Co. v. Waples Lumber Co. (Tex. Civ. App.) 176 S. W. 651, 655.

In the case last cited the court says: “In every Texas ease, to which our attention .has been called, in which a materialman, laborer, or lienholder has been allowed to recover on the bond of a building contractor, the right has been rested upon some specific obligation in the bond directly to the plaintiff, either where the bond is by its terms made payable to him or provides that it shall inure to his benefit. In no Texas case that we have seen has it been held that a materialman may recover upon the bond of a contractor, where the bond itself or the contract requiring its execution did not provide that the bond should be payable to the materialmen or that it should inure to their benefit.”

Privity of contract is an essential element of a plaintiff’s cause of action» upon any character of contract, and there can be no difference in the rule which applies to a suit upon a contract of guaranty and the rule applying in a suit on a bond.

There is no merit in the contention of the plaintiff appellee that appellant for a valuable consideration paid it by the plaintiff assumed the obligation of the contractor to pay the defendants appellees. The only consideration for appellant’s letter of guaranty to Mrs. Shepherd was its contract with Pearce to sell to him material for the building and the profits to be derived by appellant from such sales, and Mrs. Shepherd gave no consideration for appellant’s guaranty other than the execution of the contract with Pearce. The uncontradicted evidence conclusively shows that all three of these parties knew and fully understood the relations and obligations of each to the other. Pearce was to build the house according to plans and specifications and to obtain from appellant a letter guaranteeing his performance of his contract. Mrs. Shepherd was to pay him the sum named in the contract in the manner therein provided. Appellant was to furnish Pearce, to the extent of the contract price of the building, with material and money necessary to construct the building, and, as security therefor, Pearce would assign to appellant the obligations of Mrs. Shepherd to pay the con-tract price. Each of the parties fulfilled his obligations to the others. We are unable to see how appellant’s obligation to “finance” the building can be extended beyond the contract price for the benefit of persons who are not parties to the letter of guaranty. The statement in the letter of guaranty that it is given in consideration of plaintiff’s turning over to appellant the amounts to be paid by her to Pearce under his contract for the construction of the building cannot extend appellant’s obligation of guaranty for the benefit of the defendant appellees. Pearce had notified Mrs. Shepherd of his assignment to appellant of the funds to accrue to him under his contract, and under her agreement with Pearce and appellant she was bound to acquiesce in such assignment.

No question of estoppel against appellant to deny any direct liability to defendant appellees is raised by either pleading or evidence, but, on the contrary, the undisputed evidence shows that none of the defendants appellees knew of the letter of guaranty at the time they sold material or performed labor for Pearce - in the construction of the building, and therefore could not have relied upon appellant’s guaranty in trusting Pearce to pay the amounts claimed by them as the value of the material and labor so furnished him.

These conclusions render it unnecessary for us to discuss and determine the remaining questions presented by the record, and requires that the Judgment of the court below be reversed and judgment here rendered in favor of appellant for the principal, interest, and attorney’s fees due upon the $4,500 note, and for foreclosure of the mechanic’s lien given upon the property described in the pleadings to secure the payment of the note, and for the further sum of $193.70, admitted to be due by plaintiff for extras furnished her under her contract with Pearce, and adjudged to appellant by the trial court.

The several judgments against plaintiff by the defendants appellees, being unsupported by pleadings or evidence, will also be reversed and rendered in favor of the plaintiff, Mrs. Shepherd.

The judgment against Oox & Blackburn on their claim of lien, not having been appealed from, will be undisturbed.

The right of the parties to carry out their agreement to refund the $4,500 is not impaired or affected by our conclusions above expressed and the judgment rendered by this court.

Reversed and rendered.

GRAVES, J.

(dissenting).

When this decision was handed down, my .dissent therefrom, in so far as it involved the rendition here of judgments either in favor of the appellant or against the defendants appellees on their debts as the same affected Mrs. Shepherd, was noted on the docket; that individual position was grounded on the view, first, that appellant’s contract of guaranty to Mrs. Shepherd was at least susceptible of the construction given it by the able trial court and by the appellees, that is, that it meant what it so plainly says, that the lumber company — in consideration of her paying direct to them the total cost she was in any event to be out for the house, $7,900 —would “guarantee the payment of all bills for labor and material covering work done according to plans and specifications,” which original and direct obligation on its part should in a proper procedural manner be given the ultimate legal effect of inuring to the benefit both of Mrs. Shepherd and of such laborers and materialmen, although the latter did not know of or rely on it1 at the time their service was rendered; but that, second, as the appellees did not plead such a case below, the judgment as entered on that theory lacked support, hence should be reversed and the cause remanded in order to give them an opportunity to so plead and offer proof in substantiation.

That view is still entertained, but the belated; filing of this court’s opinion prevents a fuller statement of the reasons for it at this late date; wherefore this dissent is respectfully entered.


author: HALL, C. J.

text:
    GIBSON OIL CORPORATION v. GRAYBURG OIL CO. et al.
    No. 3624.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1931.
    , Shannon, Ochsner & Pheiffer, of Amarillo, for appellant.
    Ingrum & Smith, of San Antonio, and Morgan, Culton, Morgan & Britain, of Amarillo, for appellees.
   HALL, C. J.

The appellant, as plaintiff, sued A. T. Herd, Allen It. Hawse, -and the Grayburg Oil Company, alleging, in substance, that Herd had executed eight notes for the sum of $5,000 each on September 27, 1928, payable to plaintiff, and as security for the payment of said notes, executed and delivered a mortgage upon certain mineral interests in Pecos and Crockett counties, Tex. The plaintiff further alleged that in the execution of said notes and mortgage, Herd was acting for himself and the defendant Hawse. That through a certain transaction between Hawse and the Grayburg Oil Company, the latter had acquired the title to the mineral property and agreed to pay therefor $125,000 to Hawse in deferred payments. It was alleged that the residence of Herd was unknown, and no service by publication was ever attempted to be made as to him. Hawse was alleged to be a resident of Richmond, Va., and notica to serve nonresident defendant was duly served upon him. He made no appearance in the case. .Plaintiff prayed for and sought to recover a judgment against Hawse for the amount due on the notes, asked for the foreclosure of its mortgage lien on the mineral properties, Sought a discovery as against the defendant Oil Company of the amount which it owed Hawse; further prayed for a foreclosure of its mortgage lien, and" that, in the event of a deficiency of money due from the Grayburg Oil Company to Hawse, the mineral estates described in the mortgage be sold, that a receiver be appointed to collect and receive the proceeds and whatever amount might be found to be due from the Grayburg Oil Company to Hawse, and to disburse the same, subject to the orders of the court.

The defendant Grayburg Oil Company filed a plea of privilege to be sued in Bexar county, where it is admitted that it had its principal office and place of business.

By controverting affidavit, the plaintiff repeated certain allegations of the petition to the effect that the defendant Gray-burg Oil Company, was the owner of an oil and gas lease purchased from the defendant Haw;se on September 1, 1929. That on said date plaintiff was the owner of the notes and mortgage hereinabove referred to, and that the defendant Oil Company purchased the lease with full notice of plaintiff’s rights. It was alleged therein that the notes were executed by Herd for himself and on behalf of Hawse and in said suit plaintiff is seeking a foreclosure of its mortgage lien and -to impound certain moneys due from defendant Grayburg Oil Company to defendant Hawse on account of the purchase price of said lease. The nonresidence of Hawse is álleged and jurisdiction is claimed for the district court of Potter county because of the nonresidence of said Hawse, and the further fact that plaintiff’s residence is in Potter county. It is further alleged that Hawse and Grayburg Oil Company are necessary parties to the suit, and for that reason the jurisdiction under Rev. St. 1925, art.-1995, subds. 3, 23, and 29a, as added by Acts 40th Leg., 1st Called Sess., c. 72 (Vernon’s Ann. Civ. St. art. 1995, subd. 29a) is in the district court of Potter county. The notes afid the mortgage upon which the action is based were admitted in evidence, but it was not shown that either Hawse or the appellee Oil Company had any interest either in the notes, the mortgage, or the mineral estates described in the mortgage. There is no evidence to the effect that Herd was acting for himself and Hawse in the execution of said instruments, nor is there any evidence that the appellee company had acquired title to the mineral estate, and had agreed to pay Hawse $125,000 as a deferred payment.

The court heard the pleadings and the evidence and sustained the plea of privilege, and ordered the entire case transferred to Bexar county. As stated, Herd was dismissed from the suit, Hawse made no appearance, and is making no objection in this court to the change of venue, though appellant insists that the court had no right to transfer the case, in so far as the issues between it and Hawse are concerned, to Bexar county. It may be admitted that under the allegations showing that Hawse was a nonresident defendant and had been served with written notice under the statute, and that plaintiff was a corporation with its principal office in Potter county, that the district court of Potter county had jurisdiction; but, no evidence was offered, as hereinbefore stated, to sustain the necessary allegations to give the district court of Potter county jurisdiction. When a plea of privilege is filed, the plaintiff, in order to maintain jurisdiction in the forum where he has filed his petition, must not only plead a cause of action against all defendants, but by his proof he must show that the particular forum had jurisdiction of the party residing there, or if he be a nonresident, must by his proof -show that the court had jurisdiction under some other exception to article 1995. World Co. v. Dow, 116 Tex. 146, 287 S. W. 241; Greenville Gas & Fuel Co. v. Commercial Finance Company, 117 Tex. 124, 298 S. W. 550; Johnson v. Dallas C. & W. Co. (Tex. Com. App.) 34 S.W.(2d) 845; Richardson v. Cage, 113 Tex. 152, 252 S. W. 747, 748; First National Bank v. Bulls (Tex. Civ. App.) 243 S. W. 577.

Because of the failure of proof, w;e think the court properly changed the venue of the case, and the judgment is affirmed.