author: BUCK, J.

text:
    BAUER v. AUSTIN, Com’r of Banking.
    (No. 11918.)
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1928.
    Rehearing Denied March 17, 1928.
    1. Banks and banking €=>15 — Letters signed by subordinate in behalf of commissioner, informing guaranty fund claimant of commissioner's action, held admissible in suit on claims.
    In suit to establish claims on certain certificates of deposit in insolvent bank as entitled to payment out of guaranty fund, which certificates holder tendered to bank, receiving credit therefor on her cheeking account within 90 days of closing of bank, letters addressed to claimant from banking department’s office signed by subordinate in behalf of banking commissioner held admissible, as not involving delegation of judicial function, inasmuch as letters were not in themselves official action of the commissioner.
    2. Evidence €=>318(7) — Affidavit of banking commissioner of rejection of claim for participation in guaranty fund held not hearsay (Rev. St. 1925, arts. 459, 3722).
    In suit against commissioner of banking on certificates of deposit in insolvent bank, which certificate holder tendered to bank, receiving credit therefor on her cheeking account within 90 days of closing of bank, claimed to be' payable from guaranty fund, admission in evidence of affidavit of commissioner rejecting claim for participation in fund and approving it as common unsecured claim held not error, under Rev. St. 1925, arts. 459, 3722, where only complaint urged against its admission was that it was hearsay; affidavit being record of commissioner which must be kept by him in the office of the department.
    3. Banks and banking ®=>I5 — Notice to claim- - ant by mail of classification of claim for participation in guaranty fund, where received by son as her agent, constituted sufficient notice.
    Where letters from banking department were directed to claimant notifying her of rejection of claim against insolvent bank, as payable from guaranty fund, and letters were received by her son as agent, notice so received constituted notice to claimant, though she could not fully understand English; delivery to claimant in person of notice of classification not being required.
    4. Banks and banking €=>15 — Suit for payment of claim out of guaranty fund held barred, in view of affidavit of rejection of claim and notice thereof sent claimant (Rev. St. 1925, art. 459).
    Where banking department by mail notified holder of certificates of deposit in insolvent bank, which certificates holder tendered to bank, receiving credit therefor on her checking account within 90 days of closing of bank, that previous rejection of her claim as payable from guaranty1 fund must stand, except as to part which was allowed, and where affidavit showed copy of rejection of claim was sent claimant, ■ suit brought by her more than six months after date of notice and affidavit held barred f>y Rev. St. 1925, art. 459, in so far as it constituted a claim for payment out of guaranty fund.
    5. Banks and banking €=> 15 — -Certificates of deposit placed in holder’s checking account within 90 days of bank’s closing held not entitled to participate in guaranty fund (Rev. St. 1925, arts. 447, 459).
    Certificates of deposit which holder tendered to bank, receiving credit therefor on her cheeking account within 90 days of closing of bank, did not give claimant right to participation in guaranty fund, under Rev. St. 1925, art. 447, even if suit thereon against banking commissioner was not barred by limitation by article 459.
    6. Banks and1 banking €=>15 — Certificate of deposit' made noninterest bearing within 90 days prior to bank closing is not insured (Acts 38th Leg. [1923] c. 45 [Rev. St. 1925, art. 447]).
    Caption of Acts 38th Leg. (1923) c. 45 (Rev. St. 1925, art. 447), held to fully disclose purpose of act to include provision that no certificate of deposit, whether interest bearing or not, that shall have been changed to á non-interest-bearing and unsecured deposit within 90 days prior to closing of bank by banking commissioner, shall be insured under the act.
    Appeal from District Court, Denton County; F. O. McKinsey, Special Judge.
    Suit by Mrs. Annie Bauer against Chas. O. Austin, Commissioner of Banking. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Cofer & Cofer, of Austin, for appellant.
    John W. Goodwin and John W. Brady, both of Austin, for appellee.
   BUCK, J.

This is a suit brought by plaintiff below, Mrs. Annie Bauer, against Chas. O. Austin, commissioner of banking. The evidence shows that Mrs. Bauer held three certificates of deposit in the First State Bank of Pilot Point, one for $1,212.75, the second for $1,200, and the third for $2,100, making a total of $4,512.75. On March 25,1925, Mrs. Bauer, through her son and agent, Joe Bauer, tendered the certificates of deposit to the bank and received credit therefor on her cheeking account. On April 18th, 26 days thereafter, the bank closed its doors and the banking commissioner took charge. The banking commissioner classified the claim as that of a common unsecured creditor, and not payable out of the guaranty fund.

Suit was filed by Mrs. Bauer against the banking commissioner, and after evidence was introduced, the court instructed the jury to find for the plaintiff the sum of $902.55, the amount which the evidence showed she was entitled to as a common unsecured creditor, and directed tliat tlie same be paid by tbe commissioner out of tbe assets of tbe failed bant.

Special issues were submitted to tbe jury, wbicb, with tbeir answers, are bereinafter set out:

“(1) Did tbe plaintiff, Mrs. Bauer, receive in person from tbe defendant, by mail, notice that her claim against the failed bank in question bad been rejected? A. No.
“(2) On the 25th day of March, 1925, was the First State Bank of Pilot Point in an insolvent or failing condition? A. No.
“(3) If you answer the foregoing issue ‘yes,’ then at the time the deposit certificates were surrendered and the account of plaintiff with the said bank changed to that of a general depositor, did the plaintiff, or her agent, Joe Bauer, know that said bank was insolvent or in failing condition, if it was? A. ⅜ * *
“(4) Were the time certificates of deposit, which have been introduced in evidence, surrendered on the 25th day of March, 1925, for the purpose of giving plaintiff’s claim against said bank a preferred or more advantageous position in the event such bank should fail? A. No.”

Judgment was entered for defendant, denying plaintiff tbe right to recover out of tbe guaranty fund.

Opinion

In order that tbe discussion of tbe legal points involved may be better understood, we will state some of tbe evidence adduced, in part. consisting of letters from tbe commissioner to Mrs. Ba.uer, and tbe affidavit of tbe commissioner. The evidence further shows that Joe Bauer, appellant’s son, attended to bis mother’s business, as she did not speak English well; that at tbe time Joe Bauer, for bis mother, deposited tbe certificates of deposit above mentioned, be deposited also a certificate of deposit for $2,000, issued in his own name. He was a stockholder in tbe failed bank. At the time of tbe deposit of these certificates, Earl Cassidy was assistant cashier thereof, and kept a part of tbe books. He testified that A. E. Peters was president of tbe bank, but not actively engaged therein; that R. L. Porter was vice president and was in active charge. Tbe cashier of tbe bank was B. A. Busby. Earl Cassidy was assistant cashier, bookkeeper, and teller. Tbe evidence shows that Mrs. Bauer bad in tbe bank $4,-903.99, of wbicb $§91.24 was paid to her by tbe commissioner, as shown by tbe correspondence. • It is only as to tbe aggregate of the three certificates of deposit that there is any controversy. The deposit certificate for $1,212.75 was dated July 1, 1924. The $1,200 deposit certificate was .dated November 2, 1924, and the $2,100 deposit certificate was dated February 16, 1925. It was undterstood and agreed between Joe Bauer, acting for his mother, and the bank officials that no interest would be paid on these certificates of deposit until one year after tbe deposit had been made. None of these deposits bad run a year at tbe time tbe certificates of deposit were tendered the bank. Hence Mrs. Bauer was not entitled to any interest thereon and claimed none.

Some days after the bank bad failed, tbe cashier, B. A. Busby, bad a talk with Joe Bauer, and showed him the law, and told him that Mrs. Bauer would not be entitled to protection under the guaranty fund for the three certificates of deposit, but would only share pro rata as an unsecured creditor in the assets of the bank.

The following letters were written to Mrs. Bauer by the banking commissioner, or under his authority, on the dates indicated:

“Austin, Texas, June 9, 1926.
“Mrs. Annie Bauer, Route No. 2, Tioga, Texas — Dear Mrs. Bauer: Re claim Mrs. Annie Bauer. File No. 94. Reference is made to your letter of June 7, 1926, concerning your claim against the insolvent First State Bank, Pilot Point, Texas.
“In reply you are advised that your certificates of deposit were credited to your account on March 25, 1925. One certificate of deposit was due on November 23, 1925, another was due July 21, 1925⅛ and the last one matured February 16, 1926. The bank closed on April 19, 1925. You will therefore see that you transferred this certificate within ninety days prior to the closing of the bank. You will also see that the certificates were not due at the time that you received credit for them, on your account. Article 447 of the Revised Statutes of 1925 provides:
“ ‘No deposit upon which interest is being paid or contracted to be paid, either directly or indirectly by a banking institution, its officers or stockholders, and no secured deposit and no certificate of deposit, whether bearing interest or not, or any other kind of interest-bearing deposit, that shall have been changed to a non-interest bearing and unsecured deposit within ninety days prior to the closing of a bank, * * * shall be protected or insured under the guaranty fund.’
“It will therefore be seen from the above statement of facts that this claim is not protected by the guaranty fund. If you are willing to agree to the classification given to your claim on October 28, 1926, I will be glad to forward you a 20 per cent, dividend check for $902.55.
“Yours very truly,
“Chas. O. Austin, Commissioner,
“By Jerome Sneed, Jr.”
“Austin, Texas, June 1, 1926.
“Mrs. Annie Bauer, Route No. 2, Tioga, Texas — Dear Mrs. Bauer: Re claim Annie Bauer. File No. 94.
“Receipt is acknowledged of your letter of May 21st, contents of which have been carefully noted. You are respectfully advised that the records of this department show that you were the holder of three certificates of deposit and that you transferred same to your checking account within ninety days prior to the closing of the bank. The records also show that the certificates of deposit so transferred within ninety days prior to the closing of the bank are not payable by the depositors’ .guaranty fund and for that reason your claim has not been paid. We have paid another claim because of the fact that at the time the transfer took place the certificate of deposit so transferred was due. But under the circumstances we are unable to pay your claim because the certificate was not due at the time you attempted to transfer same.
“Our records also show your claim to be one of a general unsecured creditor and you have been notified of- tins' fact. A 20 per cent, dividend was recently declared and you are entitled to this amount. If you are willing to accept the classification given, we will be glad to forward this check for 20 per cent, of the amount of your claim. Please notify us your wishes in the matter.
“Yours very truly,
“Chas. O. Austin, Commissioner,
“By Jerome Sneed, Jr.”
“Austin, Texas, December 19, 1925.
“Mrs. Annie Bauer, Pilot Point, Texas — Dear Madam: In re claim Mrs. Annie Bauer. Pile No. 94. You have filed in this office a claim in the amount of $4,903.99. The records of the Pilot Point bank discloses that shortly prior to the closing of the bank you converted a certificate of deposit into a demand deposit with the bank. Under the law this $4,903.99 is not payable from the depositors’ guaranty fund, and you were so notified in a letter under date of November 2d.
“However, upon investigation, I find that $391.24 included in said deposit was never in the form of a certificate of deposit and had never drawn any interest. With these facts before us this latter portion of $391.24 has been classified as being payable from the depositors’ guaranty fund. I therefore take pleasure in inclosing herewith check No. 205 on the Prisco Guaranty State Bank in the amount of $391.24 in full payment of that portion of your deposit that is protected by the depositors’ g-uaranty fund. The previous classification given in our letter of November 2d must stand as regards the $4,512.75.
“Yours truly,
“Chas. O. Austin, Banking Commissioner,
“By Jerome Sneed, Jr.”
“Austin, Texas, October 26, 1925.
“Mrs. Annie Bauer, Tioga, Texas — Dear Madam: In re claim. Pile No. 94. You are respectfully advised that the claim filed by you against the insolvent Pirst State. Bank, Pilot Point, in the sum of $4,903.99, has been approved as one of the common creditor’s claim to share pro rata in the distribution of the assets of the bank.
“You may accept this letter as official notice of the rejection of this claim in so far as the liability of the guaranty fund is concerned.
“Yours very truly,
“Chas. O. Austin, Commissioner,
“By J. A. Lewis.”

Proof of claim was filed by Mrs. Bauer with the banking department for $4,903.99 on June Í3, 1925. On October 26, 1926 (1925?), Chas. O. Austin, as banking commissioner, made this affidavit and filed the same in his office, to wit:

“State of Texas, County of Travis.
“Before me, the undersigned authority, on this day personally appeared Chas. O. Austin, banking commissioner of Texas, who, first having been by me duly sworn, states upon oath that he has this the 26th day of October, A. D. 1925, rejected a claim filed by Mrs. Anna Bauer against the Pirst State Bank of Pilot Point, Texas, in the sum of $4,903.99, as payable from the depositors’ guaranty fund; that the claim was approved by him as one of a common unsecured creditor to share proportionately in the assets of the bank; that the said Mrs. Anna Bauer has this day been notified of such action by a letter addressed to her at Ti-oga, Texas, a copy of which letter is attached to this statement and made a part thereof. [Signed] Chas. O. Austin, Banking Commissioner of Texas.
“Subscribed and sworn to before me on this the 26th day of October, A. D. 1926 (1925?). [Signed] A. J. Lewis, Notary Public in and for Travis County, Texas-.”

Complaint is made of the introduction of the letters from the banking department’s office signed “Chas. O. Austin, Commissioner, by A. J. Lewis,” and letters signed by the commissioner by Jerome Sneed. The claim is made that the commissioner exercises a judicial function in classifying the claims, and such function cannot be delegated to a subordinate in the department. We overrule this objection. It appears to us, even if such function be judicial, concerning which we do not express an opinion, that the letters merely communicate to the plaintiff the action of the banking commissioner, and do not purport to be in themselves the official action of such officer.

It is also urged that the affidavit made by the commissioner before A. J. Lewis is subject to the objection of being hearsay. Article 459, Kev. Civ. Statutes of 1925, provides as follows:

“The commissioner may in his discretion reject any doubtful. claim presented for allowance. He shall serve notice of such rejection upon the claimant, either by mail or by written notice personally served. An affidavit of the service of such notice shall be filed with the • commissioner. Action upon a claim so rejected must be brought within six months after service.”

The affidavit, being a part of the record of the banking commissioner, is required to be kept whether made by him or some one else in the office of the department. Under article 3722 it is authorized to be received in evidence. It is true that copies of any of the records of the heads of state departments must be certified in order to be admissible as evidence without proof of authenticity. But in the instant case it does not appear that the instrument introduced in evidence was a copy, and no complaint is made of any lack of authenticity. The only complaint urged against the admission of this affidavit was that it was hearsay. We do not think that this objection was maintainable. Clegg v. City of Galveston, 1 White & W. Civ. Cas. Ct. App. § 58.

Nor do we think that the objection made that notice of classification was not delivered to Mrs. Bauer in person is maintainable. The evidence showed, as before stated, that Mrs. Bauer did not understand English very well, or at least could not speak it fluently, and that her son attended to all of her business. She and her son both testified to this fact. The letters from the department were directed to Mrs. Bauer, but were received by her son as her agent. We conclude that such notice, so received, constituted notice to Mrs. Bauer.

Article 459, Rev. Civ. Statutes of 1925, provides a period of limitation of six months in which to file suit, after rejection of a claim. Suit was filed in this case on the 27th day of November, 1926. By letter of December 10, 1925, referring to the claim filed by Mrs. Bauer in the department for $4,908.99, the banking commissioner states to the plaintiff that she was entitled to $391.24, that being a noninterest-bearing deposit, but that the previous classification of the balance of her claim, to wit, $4,512.75 “given in our letter of November 2d must stand.” The affidavit of the banking commissioner states upon oath that:

“He has this the 26th day of October, A. D. 1925, rejected a claim filed by Mrs. Anna Bauer against the Eirst State Bank of Pilot Point, Texas, in the sum of $4,903.99, as payable from the depositors’ guaranty fund; that the claim was approved by him as one of a common unsecured creditor to share proportionately in the assets of the bank; that the said Mrs. Anna Bauer has this day been notified of such action by a letter addressed to her at Tioga, Texas, a copy of which letter is attached to this statement and made a part thereof.”

While the notarial fiat is dated November 26, 1926, we must conclude that the date should be 1925. Therefore the suit was not filed within six months-after Mrs. Bauer was notified that at least the major part of her claim was rejected as a claim payable out of the guaranty fund. We think that this affidavit shows that a letter was written to her on October 26, 1925, rejecting her claim as one payable out of the guaranty fund. Therefore we think that the claim was barred by .limitation in so far as it constituted a claim payable out of the guaranty fund.

But even if the six months’ limitation does not apply, we think that the plaintiff failed to place herself within the class of creditors whose claims were payable out of the guaranty fund. Article 447, Rev. Oiv. Stats. 1925, provides in part as follows:

“Deposits not Protected,. — No deposit upon which interest is being paid or contracted to be paid, either directly or indirectly by a banking institution, its officers or stockholders, and no secured deposit and no certificate of deposit, whether bearing interest or not, or any other kind of interest bearing deposit, that shall have been changed to a noninterest bearing and unsecured deposit within ninety days prior to the closing of a bank, ⅜ * * shall be protected or insured under the guaranty fund.”

This act was passed as amended by the Legislature. See Acts 3Sth Leg. p. 90, c. 45. The caption of such act specially provides:

“That cashier checks, bank drafts or exchange issued against or issuing from bona fide unsecured and noninterest bearing deposits shall be protected under the guaranty fund or the bond security plan and providing that no unmatured interest bearing certificates of deposit or any other kind of interest bearing deposit that shall have been changed to a nonin-terest bearing and unsecured deposit within ninety days prior to the closing of a state bank by the banking commissioner of Texas shall be protected by the guaranty fund.”

We think that the caption of this act fully discloses the purpose of the act to include therein this provision:

“No certificate of deposit, whether bearing interest or not that shall have been changed to a noninterest bearing and unsecured deposit within ninety days prior to the closing of a bank by the banking commissioner of Texas shall be insured under this chapter.”

We think that the evidence, and all of the evidence, amply sustains the conclusion reached by the trial court that Mrs. Bauer was not entitled to protection out of the guaranty fund.

The judgment below is affirmed.
      @=For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    HILL et al. v. LADY OF THE LAKE GARDENS CO.
    (No. 2134.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    1. Injunction <©=^-172 — General rule that in- ■ junction will be dissolved on coming in of answer is not absolute, but depends on circumstances and is discretionary.
    General rule that injunction will be dissolved on coming in of answer is not absolute, but depends largely on nature and circumstances of case, and is to be applied subject, to discretion.
    2. Waters and water courses ⅞=3247(2) — Vacating temporary injunction restraining defendant from shutting off water from plaintiff’s land until plaintiff paid water charges held discretionary.
    Trial court did not abuse discretion in vacating temporary injunction restraining defendants from shutting off water which plaintiffs alleged defendant was to furnish to purchasers of land for domestic and irrigation purposes, in view of defendant’s answer that it had shut off water from land until such times as plaintiffs should pay water charges.
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.

      Action by J. K. Hill and others against the Lady of the Lake Gardens Company. From an order vacating a temporary injunction theretofore granted, plaintiffs appeal.
    Affirmed.
    ■ Fellbaum & Fellbaum, of, San Antonio, for appellants. •
    Ball & Seeligson, of San Antonio, for ap-pellee.
   WALTHALL, J.

This appeal is prosecuted from an order and judgment of the Forty-Fifth judicial district court of Bexar county, Tex., vacating, annulling, and setting aside a temporary injunction theretofore granted by the court, the hearing having been had upon verified bill and answer and motion to dissolve, appellee’s answer and motion to dissolve being accompanied by and having attached thereto original written contracts, or copies thereof verified as being such, which written contracts upon their face and per their terms refuted and contradicted the facts set up in appellant’s petition, so far as the contractual relations between the parties existed, and appellee’s answer fully answering and denying all of the equities in appellant’s bill.

The trial court, after hearing the petition and answer, as recited in the order dissolving the injunction, and being of the opinion, in consideration of the whole record, no‘testimony admissible, and the court being further of the opinion that the fraud or fraudulent representations attempted to be set up by appellants in their petition would not be or afford a basis for injunctive remedy, and the court being further of the opinion that the writ of injunction theretofore granted should be set aside, entered an order vacating and setting aside the temporary injunction theretofore granted, to which order appellants excepted and from which they prosecute this appeal.

Opinion.

Neither party has briefed the case. The general rule that an injunction will be dissolved on the coming in of the answer is not absolute, but depends in a large measure upon the nature and circumstances of the ease and is to be applied subject to the sound discretion of the court. 32 O. J. 415, and note 97.

A careful reading of the petition and answer and the exhibits made a part of the answer convince us that the equities of the petition are fully met and negatived by the answer and exhibits, and that there was no abuse of discretion on the part of the trial court in dissolving the temporary injunction.

The cause of action, briefly stated, grows out of the following: Appellee was the owner of a certain tract of land known as “the Lady of the Lake Gardens,” or “City View Gardens,” situated near the city of San Antonio, Texas. Appellee had subdivided said tract of land into 1-acre tracts and installed a water system to furnish to purchasers of said acre tracts water for domestic and irrigation purposes. Appellants were purchaser’s from appellee of some of the acre tracts, under certain contracts found in the record, and the contention made by appellants is, in effect, that appellants should have the water under appellee’s water system distributed to them, severally, and without charge for same, under certain alleged terms, conditions, and representations in the purchase of said tracts.

Appellee denying its duty and obligation to furnish water to said purchasers free of charge, and the 'appellants refusing to pay said water charges, appellee had shut off the water from appellants’ tracts of land until such times as appellants should pay said water charges. The trial court primarily granted a temporary mandatory writ of injunction, and, on the answer coming in and motion to dissolve, the court sustained the motion and dissolved the temporary injunction.

The action of the court in dissolving and refusing the temporary injunction is affirmed.

       <©=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: VAUGHAN, J.

text:
    KIRBY v. AMERICAN STATE BANK OF AMARILLO.
    (No. 10160.)
    Court of Civil Appeals of Texas. Dallas.
    March 3, 1928.
    Rehearing Denied March 31, 1928.
    1. Bills and notes <S=o>256 — Arrangement to defer placing notes with attorney for collection held not agreement to extend time for payment releasing indorser.
    Holder’s agreement to defer, for period of 48 hours, the placing of notes in hands of attorney for collection, held not an agreement, made without indorser’s consent, to extension of time for payment, so as to release indorser from his obligation, where notes could have been paid at any time within such 487hour period and the running of interest would thereby have been stopped, and where there was no showing that the indorser’s position had in any way been changed by such promise as to deferment.
    2. Principal and surety <®=o>97 — 'Valid agreement between creditor and principal, changing surety’s position for worse, discharges surety’s liability.
    Since the obligation of a surety-is strictly limited to the terms of his contract, any valid agreement between creditor and principal by which surety’s position is changed for the worse discharges his liability.
    3. Bills and notes <§te»139(3), 256 — Renewal without indorser’s consent of note to definite date, with agreembnt to pay interest thereto, is supported by consideration, and releases in-dorser.
    It is a well-recognized rule of, law that a contract of renewal of note to a definite date, coupled with an agreement, express or implied, to pay interest to such definite date, is supported by a consideration, is binding on holder, and releases indorser; he not being a party to such extension agreement.
    4. Trial ⅜£=>350(8) — In submitting cause on special issues, court need submit to jury only controverted issues (Rev. St. 1925, art. 2189).
    On the submission of cause to jury on special issues, as provided by Rev. St. 1925, art. 2189, it is only necessary, in view of article 2202, §§ 2, 3, and 5, that the court submit controverted issues.
    5. Trial <⅞=>215 — Court has authority to submit cause only under general charge or on special issues (Rev. St. 1925, art. 2189).
    Under Rev. St. 1925, art. 2189, and in view of article 2202, §§ 2, 3, and 5, the court has authority to submit a cause only under a general charge or on special issues.
    6. Appeal and error <⅜=3|062(1) — Submitting cause under both general charge and1 on special issues held harmless error, where special issues were independent of general charge relative to defendant’s liability on notes and were uncontroverted (Rev. St. 1925, art. 2189, and art. 2202, §§ 2, 3, 5).
    In suit on notes, wherein defense was discharge of indorser by extension of note without his consent, court submitting cause to jury under both general charge and on special issues held harmless error, under Rev. St. 1925, art. 2189, and article 2202, §§ 2, 3, and 5, where special issues were entirely independent of general charge relative to question of defendant’s liability on the notes, and were uncontroverted.
    Appeal from District Court, Dallas County; Claude C. McCallum, Judge.
    Suit by the American State Bank of Amarillo against John H. Kirby and another. Erom the judgment, named defendant appeals.
    Affirmed.
    Bailey & Bailey, of Dallas, for appellant.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellee.
   VAUGHAN, J.

On September 28, 1926, appellee, the American State Bank of Amarillo, filed its suit against one O. S. Carlton and appellant, John H. Kirby, as defendants, on two promissory notes, both executed by said Carlton, payable to himself, and indorsed by him and appellant Kirby. One note was in the sum of $10,000 and one in the sum of $5,000, both executed on the 15th day of June, 1926, payable 90 days after date, with interest at the rate of 7 per cent, per annum from maturity until paid, and providing for the usual 10 per cent, attorney’s fees. Appel-lee alleged that both of said notes were past due and unpaid; that demand had been made of the principal, O. S. Carlton, and the in-dorser, appellant, and that the notes had been placed witli attorneys for collection, and the attorney’s fees stipulated for had accrued thereon.

Appellant answered by general demurrer and general denial, and further alleged a binding agreement on the part of appellee with the said Carlton, or his agent, for an extension of time for the payment of said notes without appellant’s knowledge or consent, and without expressly reserving any right of recourse against himself. Appellant further denied the reasonableness of the 10 per cent, attorney’s fees. After the evidence had been adduced, appellant moved the court for an instructed verdict in his behalf on the ground that the undisputed evidence established a binding agreement for an extension of the time of maturity or collection of the notes without his knowledge or consent, and without expressly reserving rights against himself. This motion was overruled, and the court instructed the jury to return a verdict in favor of appellee against the defendant O. S. Carlton, as principal, and appellant, as surety, jointly and severally for the sum of $15,650.46, the amount of principal and interest due upon the two notes sued upon to that date, and, in addition, submitted the following special issues:

“No. 1. Did the North Texas National Bank place the notes sued on herein in the hands of an attorney for collection or suit before plaintiff bank received request from the defendant Sibley on September 27, 1926, not to place said notes in the hands of an attorney until noon of September 20,1926 ?
“No. 2. What amount in dollars would be a reasonable compensation for the services of plaintiff’s attorney in this suit?”

In connection with special issue No. 2, the following charge was given:

“You are instructed that, while the notes introduced in evidence contain a stipulation to pay 10 per cent, attorney fees, such stipulation is but a contract of indemnity, and is in legal effect a contract to pay said fees only, if it is a reasonable fee.”

No. 1 was answered “Yes,” and No. 2, “$1,565.04.”

Judgment was entered on said verdict in the sum of $17,215.50, with interest thereon at the rate of 7 per cent, from the 28th day of April, 1927, together with all costs.

From this judgment appellant only appealed, and presents in support of his appeal the following propositions:

“(a) Where the uneontradicted evidence affirmatively establishes that an agreement was made by the holder of the promissory note with the maker thereof, or with his agent, to forbear for a valuable consideration and a day certain the time of collection or payment of the obligation, and such agreement is made without the knowledge, consent, or assent of the in-dorser, and without expressly reserving the holder’s right against such indorser, the indorser is relieved of liability because of sucb in-dorsement.
“(b) There is no authority under section 2202 of Vernon’s Annotated- Civil Statutes 1925 for submission of a general charge together with special issues. The statute provides that the verdict shall be either general or special.”

Appellee, in due course of trade, and for value, acquired as an innocent purchaser the two notes sued upon, and, as holder, instituted its suit thereon on the 28th day of September, 1926, against the defendant O. S. Carlton, as maker, and appellant, Kirby, as indorser. On September 27, 1926, one S. W. Sibley, acting as agent for defendant Carlton, wired ap-pellee in reference to said notes as follows:

■'‘Instruct North Texas National Bank by wire not to place Carlton notes in hands of attorney. Arrangements being made to pay.”

To this communication appellee, acting through its president, J. H. Paul, replied by letter of date September 27,' 1926, as follows:

“We have your wire under this date which reads as follows: [The above telegraphic communication being here quoted.] We are complying with your request and wiring North Texas National Bank to-day to delay placing these notes in the hands of an attorney until Wednesday noon, but will instruct them by letter to-day, if not paid by that date, to place in hands of an attorney and have suit filed. We trust that these notes will be taken care of by Wednesday noon, so that it will not be necessary to have them placed in the hands of an attorney. We have been out the expense of three telegrams on these items, which we feel should be paid for our account at North Texas at the time of payment of notes.”

The above wire and letter represented the entire agreement which appellee had with said Sibley for the benefit of defendant, Carlton, in reference to the collection of said notes. Said Sibley testified that, as the agent for defendant Carlton, he received said letter, agreed to its terms, and that appellant knew nothing of said agreement and did not consent thereto. The letter contained no express reservation of the rights of appellee against the appellant as indorser of said notes. The North Texas National Bank, as the agent of appellee, had received and held said notes for collection prior to the date of said wire. The jury found that said notes had been by appellee’s said agent turned over to an attorney for collection before appellee received the wire from Sibley, and also that a reasonable attorney’s fee for representing ap-pellee in the suit was $1,565.04. We find that there was ample evidence to authorize such findings, and therefore adopt same as our findings of fact on the issues disposed of by same.

What agreement was consummated by the wire and letter, respectively, of date September 27, 1926? By the wire, appellee was requested to wire North Texas National Bank not to place the notes in the hands of an attorney^ The letter from appellee acceded to that request, and nothing more. Giving the language of the wire and letter full import according to its commonly accepted usage, we do not think that any other contractual relationship can be gathered therefrom than that appellee was requested to withhold the placing of said notes in the hands of an attorney. This appellee agreed to do until Wednesday at noon, viz. the 29th day of September, 1926. This did not embrace an extension of time within which payment could not be made or demanded, as the language of the request not to place in the hands of an attorney, and the language of the letter granting such request, clearly shows that appellee was urging the collection of the notes, the right still existing under such agreement, not only to receive, but to demand payment as against Carlton as maker and appellant as indorser of the notes. All of the rights theretofore existing in fav- or of appellant as indorser remained intact and undisturbed, viz. his right as such in-dorser at any time after the maturity of the notes to pay same and to proceed against the maker Carlton for indemnity. This right was not impaired, as appellee did not enter into a contract with the principal, Carlton, for an extension of the time of payment. We are not unmindful of the well-recognized rule of law that “the' obligation of the surety is strictly limited to the terms of his contract, and any valid agreement between the creditor and the principal by. which his position is changed for the worse, discharges his liability,” as announced in Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128.

In what respect was appellee’s position changed for the worse? Can it be said that such a change was wrought by the mere agreement not to place the notes in the hands of an attorney covering a .period of about 48 hours, during which period of time the right and duty of the principal Carlton or of appellant as indorser to pay off and discharge the notes, remained the same as aforetime the making of said agreement? We think not. The obligation of Carlton as maker and of appellant as indorser to pay said notes continued to exist without the least suspension, and could have been asserted by them, ‘respectively, at any time, notwithstanding the agreement not to place said notes in the hands of an attorney, as the right to collect the notes still abided unimpaired with ap-pellee, the owner and holder. It is not only necessary that there be a promise to extend the time of payment, but the holder or creditor making such ’ promise must be bound thereby — this because “if the creditor is not bound by his promise to extend, it is clear there is no release.” Benson v. Phipps, supra. We have not been able to extract fiom the agreement even an implied promise to extend the time of payment during the 48 hours that appeilee agreed to withhold placing the notes in hands of an attorney; such implication not being necessary to carry out the contract entered into.

The question under' discussion is subject to another rule of decision which we think is determinative of same adversely to appellant. It is a well-recognized rule of law that a renewal to a definite date, coupled with an agreement, express or implied, to pay interest to such definite date, is supported by a consideration, and, if made with the maker, is binding on the holder and releases the indorser, he not being a party to such extension agreement, but not otherwise.

“Since a promise to do nothing more than one is already legally bound to do is no consideration for a promise given in return, there is no consideration for an extension of the time of payment of the bill or note which involves a promise to forbear where the only consideration is a debtor’s promise to pay the debt at the extended time of payment, without anything more. * * ⅜ So, an agreement to pay a note which is already overdue creates no new liability on the promisor’s part and is not a sufficient consideration.” 8 O. J. 436.

In this case, appellee, the holder, demanded that the notes be paid “t>y that time” and not "at that time.” The maker therefore had the right to pay before “that time” and stop interest. In other words, he was not bound by the extension. This being the case, certainly the holder was not bound. Austin Real Estate Co. v. Bahn, 87 Tex. 582, 30 S. W. 430, in which the Supreme Court used the following language:

“Here the creditor agrees to extend for one week, and the debtor agrees to pay within the week. He does not agree that he will not pay until the end of the week, or * * ⅜ in case he does pay, he will pay interest for the entire period of the extension. Hence there was no consideration for the promise of the creditor.”

Ellerd v. Eerguson (Tex. Civ. App;) 218 S. W. 605, in which it was said:

“If by the terms of such agreement it should bind only the creditor to forbear, but allow the debtor to discharge the debt at any time and stop the running of interest, the agreement is without consideration.”

Said proposition is therefore overruled.

By the provisions of article 2189, R, C. S. 1925, the trial court was authorized to submit the cause upon special issues without or upon request of either party, and in doing so was required to distinctly and separately present all issues raised by the pleadings and the evidence in the case, and the jury was required to answer each issue submitted separately. By article 2202, R. C. S. 1925, a verdict is defined to be “a written declaration by a jury of its decision of the issues submitted to them in the case” and is required to “comprehend the whole or all the issues submitted,” and by sections 2 and 3 of said article the verdict is required to be either general or special, and by section 5 thereof a special verdict is defined to be “one wherein the jury finds the facts only on issues made up and submitted to them under the direction of the court.” On the submission of a cause on special issues, it is only necessary that the court submit to the jury controverted issues for decision. However, the law applicable to and governing the trial of causes contains no provision for the submission of a case partly on a general charge and partly on special issues. This excludes the idea that a cause may be determined partly on a general verdict and partly on a special verdict, as a court has only the authority to submit a cause under a general charge or upon special issues. That the trial court transgressed the provisions of said articles 2189 and 2202, supra, in the submission of this cause, there can be no doubt. If this was material error, this cause must be reversed. Under the undisputed proof, appellee was entitled to recover the principal sum of $15,000 and the sum of $650.46 as interest thereon at the date the verdict returned was instructed, aggregating $15,650.46, being the amount for which appellee was entitled to recover judgment on the uncontroverted facts; therefore no other ascertainment could have been reached as to the amount appellee was entitled to recover, whether that feature of the cause had been submitted to the jury by special issue or the court had determined the amount of such liability as an uncontroverted issue, and made findings of fact in support thereof in accordance with the holding in the case of American Surety Co. v. Hill County et al. (Tex. Civ. App.) 254 S. W. 241. We do not think that it is contemplated by the statute providing for the submission of causes on special issues 'that án independent uncontroverted fact should be submitted to a jury for decision. American Surety Co. v. Hill County et' al., supra.

The special issues submitted were entirely independent of the questiqn of the liability of defendant Carlton and appellant' for the payment of the principal and interest due on the notes. The only connection between the amount of principal and interest due and said special issues was that, in arriving at what would be a reasonable sum to be paid as attorney’s fees, the amount of the indebtedness represented by the principal and interest should be taken into account, especially in view of the fact that the notes provided for the payment of 10 per cent, of the amount of the principal and interest due on said notes as attorney’s fees. Therefore the submission as made of this cause was not calculated to confuse the jury, and certainly not to lead them into error in arriving at a decision of said issues. Therefore said submission was only harmless error. Dwyer v. Kalteyer, 68 Tex. 554, 564, 5 S. W. 75. We do not think this sufficient-ground for reversal. However, in the submission of causes, this is a practice that should not be indulged in. Courts and attorneys should adhere to the plain requirements of the law so as to avoid injecting into a cause unnecessarily a question freighted with danger. In other words, the utmost care should be observed in and by trial courts, through orderly legal procedure, and without any unnecessary delay or waste of time, to render final the determination of litigation, thereby accomplishing a great saving in expense to the state and litigants.

It not appearing from the record that, in the course of the proceedings had in this cause, any reversible error was committed, we are of the opinion that the judgment of the lower court should be affirmed, and it is so ordered.

Affirmed.
      ®=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    BAYLOR v. BAYLOR.
    (No. 2127.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    Rehearing Denied March 29, 1928.
    Abatement and revival <§=»86 — Plea in abatement held waived by defendant’s failure for four terms to call it to court’s attention and invoke action thereon (Rev. St. 1925, art. 2013).
    Plea in abatement for pendency of former suit Hi eld waived, under Rev. St. 1925, art. 2013, by defendant’s failure for four terms to call it to attention of court and invoke action thereon.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Divorce suit by Helena Baylor against J. W. Baylor. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. P. Camp, of San Antonio, and S. L. Staples and Harris & Harris, all of Austin, for appellant.
    Powell & Green, of San Antonio, for ap-pellee.
   HIGGINS, J.

J. W. Baylor, appellant, filed suit in the district court of La Salle county, Tex., June 10, 1926, against his wife, Helena Baylor, for divorce, custody of their children, and settlement of property rights. Mrs. Baylor was served with citation the following day, and upon September 16,1926, answered by general demurrer and general denial. On July 7,,1926, Mrs. Baylor filed suit in Bexar county against her husband for divorce, settlement of property rights, and custody of the children. July 16, 1926, appellant, in due order of pleading, filed in the latter suit a plea in abatement, setting up the pend-ency of the former action in La Salle county, general demurrer, and general denial.

The action in Bexar county was returnable to the October term. No action was invoked upon the plea in abatement at that term, nor was the same called to the attention of the court. The .same is true of the three succeeding terms. The plea was first called to the attention of the court at the following May term on May 2d, upon which date the case had been specially set for trial. Upon that date Mrs. Baylor filed motion to strike out or overrule the plea, setting up-, among grounds, that it had been waived by failure to present same seasonably to the court for action. The plea was overruled, and the case was tried upon its merits, and judgment rendered in favor of Mrs. Baylor for divorce, custody of the children, and the property rights adjudicated, from which J. W. Baylor appeals.

All of his assignments of error and propositions are directed against the action of the court in overruling the plea in abatement.

The decisions in this state upon the question of abatement because of the pendency of a former suit are in a state of hopeless confusion and irreconcilable conflict. Aside from the question of waiver,- the ruling of the Dallas Court of Civil Appeals in Long v. Long, 269 S. W. 207, is in point, and supports the view that the plea should have been sustained, or the present action held in suspension upon the docket until the suit in La Salle county was disposed of. We express no opinion as to the merit of the plea if action thereon had been seasonably invoked, for under the authorities it is clear the same was waived by appellant failing, for four terms, to call the same to the attention of the court, and invoking action thereon. The findings of the court show that the plea was first called to its attention upon the date the case had. been specially set for trial upon its merits; that the business of the court at the four preceding terms was not such as to prevent a hearing of the plea at any of such terms; that orders of continuance without prejudice had not been made, nor had counsel made any agreement with respect to the plea. Under these circumstances the plea was properly held to have been waived. Article 2013, R. 8.; Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; McCoy v. Bankers’ Trust Co. (Tex. Civ. App.) 200 S. W. 1138; Smith v. Bank (Tex. Civ. App.) 187 S. W. 233.

This view is strengthened by the further findings of the trial court that on March 24, 1927, Mrs. Baylor procured from the court a special setting of the case upon'its merits for May 2d, because of out of town parties and witnesses, of which setting appellant’s coun sel had actual notice and made no objection thereto; that, relying upon such special setting, Mrs. Baylor prepared for trial on the merits, brought a witness from outside of Bexar county to testify, and who did testify. The materiality of these findings upon the issue of waiver is very apparent from Justice Denman’s opinion in Aldridge v. Webb, supra.

Appellant cites several cases in which the court was without jurisdiction of the subject-matter and it was held that pleas in abatement for want of such jurisdiction were not waived by failure to promptly present the same. These eases manifestly have no application.

The court did not err in holding the plea to have been waived and in overruling same.

Affirmed.
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author: FLY, C. J.

text:
    YTURRIA v. LANKFORD et al.
    (No. 7906.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1928.
    Automobiles ⅞⅜=>244( 12, 44) — Evidence sustained finding automobile accident was caused by defendant’s negligence and that plaintiff was free from contributory negligence.
    In action for injuries to automobile and lady driver, sustained when defendant, after attempting flirtation, ran his automobile in front of plaintiff’s while both were moving in same direction and so obstructed highway as to force plaintiff’s car into ditch, evidence held sufficient to sustain finding that accident was caused by defendant’s negligence without contributory negligence on part of plaintiff.
    Appeal from District Court, Cameron County; A. M. Kent, Judge.
    Action by Mrs. W. E. Lankford and husband against H. Ytu,rria. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    See, also, 4 S.W.(2d) 211.
    Birkhead, Lang & Beckmann, of San Antonio, for appellant.
    Homer R. Maxwell, of Harlingen, for ap-pellees.
   FLY, C. J.

Mrs. W. E. Lankford, joined by her husband, W. E. Lankford, instituted this suit against appellant, to recover- damages inflicted upon her by reason of the act of appellant in running his automobile in front of the automobile of appellees, both cars moving in the same direction from San Benito to Harlingen, and so obstructing the highway as to force appellees’ car off the paved highway and into a ditch, almost demolishing it and damaging it in the sum of $750, and inflicting injuries on Mrs. Lank-ford, to her damage $1,000. The cause was submitted to a jury on special issues, and on the verdict judgment was rendered for damage to the car in the sum of $575, and to the person of Mrs. Lankford in the sum of $250.

The evidence shows that Mrs. W. E. Lank-•ford and Mrs. Everton, who live in Harlin-gen, on January 31, 1927, went in a coupé, the property of Mrs. Lankford, to San Benito, a few miles distant, to do some shopping, and after getting through with their shopping started back to their home. Just before getting out of San Benito they noticed appellant, whose car was being driven by a chauffeur, who seemed to be endeavoring to attract their attention and flirt with them. He passed them a number of times and would run directly in front of them in such proximity that they were compelled to turn around his ear to avoid it. After going about three and a half miles from San Benito, appellant’s car was driven rapidly past them, as he admits, at a rate of 60 or 65 miles, and was run right in front of Mrs. Lankford’s car and so close to it that she was compelled to turn sharply to the right, and the car was upset and went into a ditch. There was no evidence of contributory negligence on the part of Mrs. Lankford, and she made no signals to appellant or ■ the chauffeur. She drove at a moderate rate of speed, never going over 30 miles an hour. Neither of the women gave appellant any encouragement to flirt with them.

There was no evidence tending to show that any negligence in her manner of driving contributed in any way to the accident to appellees’ car. No matter how fast she may have been running, that speed was not shown in any way to have caused or contributed to the overturning of the automobile. Appellant crowded close to and immediately in front of the automobile of Mrs. Lankford, and in order to avoid a collision with him she was compelled to turn sharply to the right. Mrs. Lankford may have run rapidly past appellant as testified by him and his employee, but there was no causal connection shown between such speeding by and the conduct of appellant in passing the car of appellees at a terrific rate of speed, running immediately in front of the other automobile and slowing up so as to cause those in the other ear to so fear a collision as to swerve to the right to avoid the impact of a collision. There was no evidence to show contributory negligence upon the part of Mrs. Lankford. There was no evidence bearing upon the accident that tended to show that appellee could have done otherwise than she did to avoid the accident. The accident was caused alone by the lawless acts of appellant. Every issue arising from the evidence was presented by the court, and the jury properly found that the accident was caused by the negligence of appellant, and that no negligence upon the part of appellee Mrs. Lankford contributed to the accident. The first, second, and third propositions are overruled.

The fourth, fifth, sixth, seventh, eighth, ninth, and tenth propositions are without merit and are overruled. While the court might with propriety have omitted much of the charge relating to the law of the road, still the unnecessary matter contained therein could not have had any influence upon the minds of any ordinary jury. It is evident that the jury considered nothing except the facts, most of which were undisputed, immediately surrounding the accident. The many passings and repassings of the cars were accounted for by the women, who showed that all were caused by continued chase of an amorous swain who hy his flirtatious actions was endeavoring to attract the attention of two women, who did not desire his approaches. They in passing him were clearly endeavoring to avoid his advances, and although he claims to have had business further up the valley, which caused him to exceed the speed limit, he seemed to have enough time to so slow up his running as to give them an opportunity to pass. They did not slow up for him.

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


author: PLY, C. J.

text:
    YTURRIA v. EVERTON et al.
    (No. 7911.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1928.
    Rehearing Denied March 28, 1928.
    1. Automobiles <@=>244(12,44) — Evidence held to show automobile accident was caused by defendant’s negligence, and that plaintiff was not contributorily negligent.
    Evidence held to show negligence of defendant, which was proximate cause of plaintiff’s injury, and that plaintiff was free from contributory negligence, where after attempted flirtation he drove automobile in front of that in which plaintiff was riding as guest, forcing it into ditch.
    2. Automobiles <@=>226(2) — In guest’s action for injuries in automobile accident, whether host drove at excessive speed was immaterial where no causal connection was shown between speed and accident.
    In action for personal injuries sustained in automobile collision brought by one who was riding as guest in car of another, it was unimportant and immaterial whether host was driving car at excessive speed when accident occurred, where no causal connection was shown between speed of car and accident.
    3. Automobiles <@=>224(5) — Guest held not responsible for host’s negligence in operating automobile unless she encouraged violation of law.
    In action for personal injuries sustained in automobile accident brought by guest who was riding in car of another, plaintiff cannot be held responsible for negligence of host in operating car unless she in some way encouraged host in violating law, since it was not incumbent on guest to suggest way in which automobile should be operated.
    On Motion for Rehearing.
    4.Appeal and error <§=>930(1) — In determining
    sufficiency of evidence, evidence sustaining
    judgment will be taken as true.
    In reviewing sufficiency of evidence to support verdict for plaintiff, evidence sustaining judgment will be considered, and not that opposed to it; evidence sustaining judgment being taken as true.
    Appeal from District Court, Cameron County ; A. M. Kent, Judge.
    Action by Mary Everton and husband against H. Yturria. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    •Birkhead, Lang & Beckmann, of San Antonio, for appellant.
    Carter & Stiernberg and Homer R. Maxwell, all of Harlingen, for appellees.
   PLY, C. J.

This is a companion case to the case of H. Yturria v. Mrs. W. E. Lankford et al., 4 S.W.(2d) 210, this day decided by this court. Mrs. Everton was an occupant, as a guest, of a coupé automobile owned and driven by Mrs. W. E. Lankford, on'January 31, 1927, to which an accident occurred on the road between San Benito and Har-lingen. The cause was submitted to a jury through special issues and a verdict of $2,500 was rendered in her favor against appellant.

The jury found that the appellant was guilty of negligence in operation of his automobile previous to and at the" time the accident occurred, that such negligence was the proximate cause of the accident and consequent injuries to Mrs. Everton, and that Mrs. Everton was not guilty of any negligence previous to or at the time the injuries were received by her. The evidence sustains those findings, and shows that Mrs. Everton was a guest in the coupé of Mrs. Lankford, and they were on their way from San Benito to Harlingen where they resided. Appellant in his automobile, driven by an employee, passed them a number of times, slowing up alongside and in front of them, and making flirtatious advances to them. When he at times slowed up they would pass by him and he would speed up and pass by them, making amatory gestures to them. Neither of them responded in any manner to his gestures, nor in any way recognized his presence except to endeavor to avoid his pursuit. Mrs. Everton' swore they first saw him at a stop sign going out of San Benito, and that there he tried to flirt with them. She testified:

“He kept running in front of us after that and beside us. He would run up beside us, and invited one of us to get in his ear and one of them get in hers. I should judge that he did that about half a dozen times, or maybe more. Yes, we tried to get away from him. We just tried to let him alone and act like we did not see him. We thought that he would be man enough to let us alone. H,e persisted in doing that for quite a while. He tried about half a dozen times to stop us. The first time when he said anything to us when he was beside us was, ‘Hello, girls.’ Then we dropped behind him and ran behind him. He would run in front of us and slow down and wait until we caught up even, and motion for us to stop. * * * Mr. Yturria tried to stop us, and we kept talking about 'it, and we kept thinking that after a while he would let ns alone. Well, she said, T am a good mind to stop and bawl him out,’ and I told her ‘No, I don’t think I would.’ I told her I thought it best not to say a word, and act like we didn’t see him. But he would get in front of us and then slow down and almost compel us to stop.”

She swore that at last he went in front and almost stopped, putting on his brakes, and that Mrs. Lankford put on her brakes, which caused her car to upset. She testified:

“When she threw her wheel and put on her brakes, it just turned right around and headed towards the ditch, and in the ditch the front first turned over on top and then back half way over on the side again. He stopped and waited in the car until other people came to our assistance, and finally he came back and stood there and grinned.”

Mrs. Lankford’s car was wrecked. Appel-lee testified:

“The immediate effect of this turning over on me was that it bruised me and skinned me up, and I was bleeding, and it caused a miscarriage.”

An operation became necessary to cause the delivery. She was in bed for a long time, and her health since has been impaired, and she lost 18 pounds in weight, and her medical and hospital .bills amounted to $157. She swore that Mrs. Lankford, at the time and before the accident had her car under control, and at the time of the accident was going at the rate of 25 to 30 miles an hour. Mrs. Lankford was compelled to swerve to the right to avoid a collision with appellant who slowed up directly in front of her car.

The first proposition of appellant is overruled. No one denied that the automobile of Mrs. Lankford was wrecked, and that Mrs. Everton was bruised and injured seriously, and there was no error in the court assuming that injuries were inflicted.

It was utterly immaterial and unimportant whether Mrs. Lankford was driving' her car at an excessive rate of speed or not when the accident occurred, because no causal connection was shown between the speed of her car and the accident. There was no testimony tending to show that her automobile was moving over 30 miles an hour. The fact that appellant attained a speed of 60 or 65 miles to> pass her did not show that she was running her car at an excessive rate of speed. It follows that there was no testimony that tended to show that Mrs. Lankford was operating her car at an illegal speed. The evidence did not disclose that Mrs. Everton urged or encouraged Mrs. Lankford to operate her car at a high rate of speed. Mrs Lankford swore that at one time during the chase that appellant was giving them, Mrs. Everton said, “Let’s pass him and go on. Maybe he will let us alone.” And Mrs. Everton said that one time when appellant passed them and stopped or slowed up, she told Mrs. Lankford, who had suggested stopping and bawling him out, “I said, ‘No, just go on past him. Maybe he will let us alone.’ ” That was not said at the time appellant passed them the last time, but if it had been it did not indicate anything except a desire to escape the persistent and distasteful advances of appellant.

No matter how rapidly Mrs. Lankford may have been running, the evidence showed that the accident occurred just as appellant ran in front of her car, and that the passing was inseparably connected with the swerving of the car of Mrs. Lankford to the right.

Mrs. Everton was a guest in the car of Mrs. Lankford and could not be held responsible for the manner in which the car was operated, unless she had in some way encouraged the owner in violating the law. It was not incumbent on the guest to suggest the way in which the automobile should be operated. No case brought to our attention has held that the negligence of the owner and operator of an automobile will be imputed to a guest if he or she has not warned or advised the owner as to the way in which the car is being operated. The suggestion of Mrs. Everton to Mrs. Lankford to pass the car and endeavor to rid themselves of the distasteful, insolent, and insulting advances of appellant cannot‘be successfully warped and distorted into encouragement to Violate the law as to speed, even if it had any connection whatever with the attempt to avoid crashing into an automobile obstructing their way. If it be true that- Mrs. Everton smiled or laughed at appellant as at one time they passed him, that certainly could not be construed into encouragement of Mrs. Lankford to make reckless speed, but, if anything, to encourage appellant in his woman chase.

None of the errors assigned is tenable, and the assignments and propositions are overruled.

The judgment is affirmed.

On Motion for Rehearing.

Appellant seems to lose sight of the rule that the evidence sustaining a judgment must be considered, and not that opposed to it. We assert again that there was no evidence tending to show any acts upon the part of Mrs. Lankford or Mrs. Everton that would lead appellant to believe that his amorous approaches would be entertained. Both women swore that they gaye no signals of invitation to appellant to make bis approaches. Their evidence must be taken as true. Mrs. Lankford swore that she' drove at a moderate rate of speed, not over 30 miles, and that must be taken as true no matter what appellant Ldeck swore. The jury evidently did not credit their testimony, and this court cannot be guided by it, but must look at the facts from the standpoint fixed by the verdict .of the jury.

There is no merit in the motion, and it is ■overruled.
      <@=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    MARRIOTT v. CORDER et al.
    (No. 11888.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 10, 1927.
    Rehearing Denied Feb. 4, 1928.
    .1. Constitutional Law <S=o300 — Ordinance making paving lien superior to vendor’s lien acquired before acceptance of city charter held not to take property without due process of law (Const. U. S. Amend1. 14; Wichita Falls City Charter, §§ 108-1 ID> 112, 113).
    Under Wichita Falls/City Charter, §§ 108-110, 112, 113, relating to paving and liens therefor, city making lien for paving superior to vendor’s lien acquired prior to acceptance of city charter and enactment of ordinances held not to take property without due process of law, contrary to Const. U. S. Amend. 14.
    2. Liens «⅜=»12 — Ordinary statutory lien is generally subordinate to prior contractual or other lien.
    Generally an ordinary statutory lien is subordinate to a prior contractual or other lien.
    On Motion for Rehearing
    3. Vendor and purchaser <@=>285(3) — In suit on notes and to foreclose vendor’s lien, pleadings held to authorize foreclosure of prior lien for paving (Wichita Falls City Charter, §§ 108-MO, 112, 113; Rev. St. 1925, art. 1096)..
    In suit on notes and to foreclose vendor’s lien securing them, amended answer of some defendants, setting up cross-action for foreclosure of paving lien under Wichita Falls City Charter, §§ 108-110, 112, 113, alleging their certificate was superior lien on property described and that other parties were estopped from denying its validity under Rev. St. 1925, art. 1096, held to sufficiently disclose cross-action and to authorize foreclosing paving lien, against contention that such answer was ad- • dressed for relief against Original owner of property only.
    Appeal from District Court, Wichita County ; W. W. Cook, Judge.
    Suit on notes and to foreclose a vendor’s .lien by E. W. Marriott against Ernest W. Corder and others, doing business as Whit-.ham & Co., and others, in which L. E. Whit-ham and R. M. Whitham filed a cross-action Isetting up a paving lien. From a judgment foreclosing the paving lien of L. E. Whitham and R. M. Whitham and making it superior to the vendor’s lien securing plaintiff’s notes, plaintiff appeals.
    Affirmed.
    W. J. Townsend, of Wichita Falls, for appellant.
    Milburn E. Nutt, of Wichita Falls, for ap-pellees.
   CONNER, C. J.

E. W. Marriott, appellant, instituted this suit against Ernest W. Corder, J. R. Monroe, L. E. Whitham, and R. M. Whitham, doing business as Whitham & Co., and others not necessary to name, in the district court of Wichita county, in the usual form of trespass to try title for lot 4 of the J. Caruthers subdivision of block 26 of the original L. Jalonic addition to the city of Wichita Falls.

In a second count, the plaintiff pleaded, in the alternative, that he was the holder and owner of four certain unpaid vendor’s lien notes, dated September 13, 1919, executed by Ernest W. Corder in favor of J. Caruthers in the sum of $790 each, bearing interest from date until paid at the rate of 8 per cent, per annum, and due and payable in 2, 3, and 4 years from date, stipulating the usual 10 per cent, attorneys’ fees, and retaining a vendor’s lien on the lot and premises mentioned to secure the payment thereof.

It was alleged that J. Caruthers and wife, Sigrid Caruthers, for a valuable consideration, on September 30, 1919, by an instrument in writing, duly assigned to the plaintiff, E. W. Marriott, the above-described notes and vendor’s lien. There were other allegations relating to defendants not named which will not be noticed, inasmuch as they are making no complaint of the judgment below.

L. B. Whitham and R. M. Whitham answered, so far as necessary to notice, that, by virtue of the laws of the state of Texas and ordinances of the city of Wichita Falls, they had paved the street in front of the lot in controversy under contract, for which the city of Wichita Falls, on October 20, 1924, issued a certain paving lien assessment in. favor of said defendants against said property, bearing interest from date until paid at the rate of 8 per cent, per annum, together with reasonable attorneys’ fees, in the amount of the alleged paving lien, to wit, $712.87. Said defendants alleged that said paving lien was a binding first and superior lien upon the property above described, and that plaintiff’s vendor’s lien, of date September 13, 1919, was inferior thereto.

The case was tried before the court, which, upon the undisputed testimony, entered judgment in favor of plaintiff, Marriott, for the title and possession of the land sued for against all defendants, but in favor of L. E. and R. M. Whitham, paving- contractors, for a first lien against the property in question for the cost of paving, interest, and attorneys’ fees thereon, amounting to the sum of $712.S7, canceling the plaintiff’s vendor’s lien notes which had been given for a part of the purchase money of said property, and declaring that they constituted a second and inferior lien to that held by the Whithams, to whom the court gave a foreclosure of their lien as against the property. From the judgment so entered, the plaintiff excepted, and has duly prosecuted an appeal to this court.

Appellant presents some nineteen propositions upon which a reversal of the judgment is sought. Appellees object to propositions 8, 10,11, 12,14,15,16, 17, and 18 as violative of rules 30 and 31, prescribed for the 'government of Courts of Civil Appeals, in that they present propositions of law only. We will quote the first proposition as illustrative of the others, which are of the same general character, to wit:

“Where a lien to secure the purchase money of real estate sold is expressly reserved in the deed of conveyance thereof, the superior legal title remains with the vendor or his assignee, who can be divested of said title only by the payment of the purchase-money notes by the original vendee or his assigns.”

Under the rules referred to, we incline to the view that the objections to the proposition are well taken. See Davis, Agent, v. Morris (Tex. Civ. App.) 257 S. W. 328; Hunt v. Evans (Tex. Civ. App.) 233 S. W. 854; Richmond v. Hog Creek Oil Co. (Tex. Civ. App.) 229 S. W. 563; Reisenberg v. Hankins (Tex. Civ. App.) 258 S. W. 904; Georgia Casualty Co. v. Ginn (Tex. Civ. App.) 272 S. W. 601.

We, however, do not feel that it is necessary to discuss or determine the sufficiency of the propositions objected to, for the reason that we think propositions 9, 13, and 19, to which no objection has been leveled, substantially present the questions, informally presented in other propositions, upon which appellant relies for a reversal. These are to the effect that the judgment of the lower court is erroneous, for the reason that appellant, for a valuable consideration, secured his vendor’s lien notes and the legal title retained in the grantor to secure the same on September 13, 1919, prior to the adoption by the city of Wichita Falls of its charter and state paving law, which was on March 31, 1920, and prior to the enactment of the ordinances under the charter authorizing the paving done by the appellees, these ordinances being adopted on April 12, 1920; and hence that the charter and paving law has been given retroactive effect and deprived plaintiff of his property without due course of law, contrary to the familiar provisions of

the state and federal Constitutions relating to those subjects.

It will be unnecessary, we think, to set out the various articles of the city charter of Wichita Falls which define its powers, inasmuch as in a proper case the power of the city to order the pavement in question is not disputed; nor is any question raised as to the regularity of the action of the board of aider-men in determining the advisability of making the improvement, or of the regularity in the enactment of the ordinances ordering the improvement according to specifications given after due notice thereof had been published as required by .the charter; nor is any question made of the extent of the benefits conferred upon the property involved in this controversy, or of the fact that the certificate of the city issued to and held by appellees was in due form and duly assigned" to them. In short, the only questions presented in the brief of appellant are those indicated above. We are thus relieved of much detail in our statement and disposition, for which we feel that counsel representing the parties are i;o be commended.

We will therefore address ourselves to the question of whether the fact,, which is admitted, that appellant acquired the vendor’s lien notes and legal title, as asserted, prior to the acceptance of the city of its charter, and prior to the enactment of the ordinances and construction of the improvement in question, entitled him to a judgment free of the lien of appellees. An ordinary statutory lien, such as those involved in the cases cited in behalf of appellant, is held subordinate to a prior contractual or other lien. But in the case bqfore us we have a lien based on the theory of benefits conferred upon the property involved and authorized by statutes which in express terms provide that the assessment lien shall be a first and superior lien to all others. As to such liens, it is said, in Page & Jones on Taxation by Assessment, vol. 2, § 1068, that:

■ “The provisions of the statute determine the question of the priority between the lien- of an assessment- and other liens upon realty, if both are created after the enactment of such statute. * * * ft jg so pr0yi(}e(i j,y statute, the lien of an assessment may have priority over a lien which is earlier in point of time, such as a mortgage lien.”

Numerous cases are cited in the notes as supporting the text quoted. Among them is the case of Provident Institution for Savings v. Mayor & Aldermen of Jersey City, by the Supreme Court, 113 U. S. 506, 5 S. Ct. 612, 28 L. Ed. 1102. That was a case in which the institution sought to foreclose certain mortgages given to it on a certain lot in Jersey City, and the mayor and aldermen of the city were made parties on allegations that the city was claiming a prior lien on the premises for certain water rents. It was shown that, at the time the Institution acquired its mortgages, no water rent had accrued, and the Institution urged that to give the after-acquired lien for the water rents as claimed by the city violated that portion of the Fourteenth Amendment to the Constitution of the United States, which declares that no state shall deprive any person of life, liberty, or property without due process of law. The court held that the city’s lien for the water rent was superior to the mortgage liens of the Institution, on the ground that the statutes of the state which authorized the Ren for water rents, giving it priority over other liens, having been in existence at and before the creation of the mortgage liens, the Institution took its mortgage subject to the law, and that hence the city’s lien was superior to that of the Institution and not in violation of the constitutional provision invoked.

Of course the ease just referred to is distinguishable from the case we have before us, in that here the charter giving the improvement lien priority was not in force at the time appellant acquired his vendor’s liens and title, but in the above decision of the Supreme Court, after ruling as stated, it was further said:

“In what we have now said in relation to the anterior existence of the law of 1852 as a ground on which this case may be resolved, we do not mean to be understood as holding that the law would not also be valid as against mortgages created prior to its passage. Even if the water rents in question cannot be regarded as taxes, nor as special assessments for benefits arising from a public improvement, it is still by no means clear that the giving to them a priority of lien over all other incumbrances upon the property served with the water would be repugnant to the Constitution of the United States. The law which gives to the last maritime liens priority over earlier liens in point of timé is based on principles of acknowledged justice. That which is given for the preservation or betterment of the common pledge is in natural equity fairly entitled to the first rank in the tableau of claims. Mechanics’ lien laws stand on the same basis of natural justice. We are not prepared to say that a legislative act giving preference to such liens even over those already created by mortgage, judgment, or attachment, would be repugnant to the Constitution of the United States. Nor are we prepared to say that an act giving preference to municipal water rents over such liens would be obnoxious to that charge. The providing a sufficient water supply for the inhabitants of .a great and growing city is one of the highest functions of municipal government, and tends greatly to enhance the value of all real estate in its limits; and the charges for the use of the water may well be entitled to take high rank among outstanding claims against the property so benefited. It may be difficult to show any substantial distinction in this regard between such a charge and that of a tax strictly, so called. But, as the present case does not call for an opinion on this point, it is properly reserved for consideration when it necessarily arises.”

While the pronouncement just quoted is, as to the case here, doubtless dicta, it is at least persuasive, and in principle applied by our own Supreme Court in the case of Storrie v. Street Ry. Co., 92 Tex. 129, 46 S. W. 796, 44 R. R. A. 716. In that case certain mortgage liens were pleaded as • superior to a street improvement lien authorized by a law passed subsequent to the date of the mortgages which gave the improvement lien priority. It was claimed by the railroad company that the statute was unconstitutional in so far as it added to the liability of the railroad over and above what was authorized by the law at the time its mortgage waS executed. In disposing of the question, our Supreme Court said:

“Article 1, § 17, of the Constitution of the state, contains this provision: ‘No irrevocable or uncontrollable grant of special privileges or immunities shall be made, but all privileges and franchises granted by the Legislature or created under its authority shall be subject to the control thereof.’ This provision of the Constitution was in force at the time the street railway company acquired its right in the streets of Houston and before the mortgage of the trust company was executed. The rights of both the street railway company and the mortgage company were acquired subject to the control of the Legislature upon this question. The Legislature had the right to enact the law of 1891 amending the charter of Houston, by which the liability of the street car company for the cost of paving the street was enlarged; that act does not violate the Constitution of this state nor of the United States. Railway v. Sioux City, 138 U. S. 98 [11 S. Ct. 226] 34 L. Ed. 899; Street Railway v. Sioux City, 78 Iowa, 367 [43 N. W. 224]; Railway v. Commissioners [134 Ill. 384, 25 N. E. 781] 10 L. R. A. 285; 2 Elliott on Railroads, § 789.
“Mr. Elliott, in his work on Railroads, section above cited, speaking of the liens of such assessments, says: ‘These liens are purely statutory, and their existence, force, and extent depend upon the terms of the statute creating them. Such liens are ordinarliy superior to all liens except general taxes, and the authority of the Legislature to make them such is firmly established. The assessments being made on the theory that the property is benefited and enhanced in value in a sum equal to the amount of the assessment, no injury can result to other lienholders, such as mortgagees, mechanic lien holders, and the like.’ ”

Section 108 of the city charter of Wichita Palls, relating to local improvements, requires a resolution of the board of aldermen declaring the necessity for the improvement. Section 109 requires notice to be given by publication of the intention to improve. Section 110 gives the owner of property the right to present his claim for damages, etc. Section 112 confers the power to provide how the cost of any such improvement shall be paid, and section 113, among other things, provides that the hoard of aldermen may provide by ordinance for the time and terms of payment of such assessment and the rate of interest payable on deferred payments thereof,' and that — •

“Any such ordinance may also fix a lien, upon the property and declare the assessments to be a personal liability of the owners of such abutting property, and the board of aldermen may cause assignable certificates to be issued in the name of the city declaring the liability of such owners and their property for the payment of such assessments and fixing the terms and conditions of such liability and payment. * * * Such assessments shall be secured by and constitute a lien on said property, which shall be the first enforceable claim upon the property against which it is assessed, superior to all liens and claims except for state, county and municipal taxes.”

We conclude that under the ordinances and the authorities there can be little doubt, if any, that the city by ordinance had the power to make the assessment lien prior to that of appellant in this case. Indeed, the question of a priority of liens, which is principally presented, would seem not to be in the case at all. It is said in Page and Jones on Taxation, vol. 2, § 1053, that:

“In the absence of statutory provisions restricting the lien of the assessment to, some particular estate in the land, it is generally held that the lien of .an assessment is a burden upon the land thereof” — citing the cases of Wabash Ry. Co. v. Commissioners of East Lake Fork Special Drainage District, 134 Ill. 384, 25 N. E. 781, 10 L. R. A. 285; Highland v. City of Galveston, 54 Tex. 527.

In Highland v. City of Galveston, supra, in speaking of improvement, the court said:

“The burden of the improvement when ordered, or its cost when constructed, attached to the lot in the possession of any party having an interest therein. Whatever that interest, it was subordinate to that burden' or charge, and was liable to be defeated by the salé of the lot regularly made to enforce the collection of the cost.”

No other question being presented, we conclude that, the judgment should be affirmed.

On Motion for Rehearing.

It is urged that the pleadings' do not authorize the recovery awarded the Whit-ham appellees herein; the particular contention being to the effect that the cause of action asserted by them is alone confined to J. R. Monroe, one of the vendees under Caru-thers, the original grantor of the property. This contention, in effect, was presented in appellant’s original brief under assignments and propositions which we indicated in our original opinion was subject to the objections made thereto by appellees, but it is now contended that in the state of the pleadings the judgment rendered by the court in favor of the appellees is fundamentally erroneous, and that the question is available as such, regardless of any failure to conform to the rules in its presentation.

Notwithstanding our failure to discuss the question in our original opinion, and notwithstanding appellees’ objection to the propositions under which the question was presented, we did, in perhaps a hurried way, examine the pleadings for the purpose of.seeing whether the contention now made was well taken, and after such examination as we made we concluded that the contention should be overruled, and a more careful consideration of the pleadings in considering the motion for rehearing has confirmed our original unexpressed conclusion.

The transcript before us discloses that the trial proceeded upon appellant’s third amended original petition and appellees’ first amended answer and) cross-action; appellant’s first and second original petitions and appellees’ original answer and cross-action not appearing in the record. Nor do we have before us any pleadings on the part of J. R. Monroe, a subvendee of the Oaruthers made a party to the action. In the petition upon which appellant proceeded to trial, he first pleads in the usual form of trespass to try title for the title and possession of the lot in controversy. ■ In a second count appellant urges, in substance, that on the 13th d£y of September, 1919, Ernest W. Corder made, executed, and delivered to J. Oaruthers his four promissory notes for the sum of $700; that said notes for a valuable consideration had been assigned to appellant, together with the vendor’s lien securing the same. The petition further alleges several transfers, assumption of promises, payments, etc., on the part of several subvendees, including J. R. Monroe, and alleges that the notes and liens, if any, against said property now held by the defendants Lillian K. Moore, E. N. AAh, O. H. Reid, W. A. Costley, L. E. Whitham, and R. E. Whitham, are second and inferior liens to plaintiff’s said lien covering said property.

Other allegations, not thought necessary to notice, follow, béing, in substance, a prayer for the recovery of the title and possession of the lot in question, and, in the alternative, “if it be decreed by the court that the plaintiff is not entitled to the judgment sought for herein,” that plaintiff have judgment against E. W. Corder for the debt of $4,000, etc., and “for the foreclosure of his lien on the above-described land and premises against each and all defendants, and that the same be decreed to be sold according to law,” etc.

In the first amended answer of appellees Whitham, it is alleged that, “by leave of the court and of all counsel involved,” they filed “their first amended answer to plaintiffs’ petition, answer to the defendant Lillian K. Moore’s answer and cross-action against the defendant J. R. Monroe,” and except generally to the “allegations contained in the plaintiff’s original and amended petitions, as well as to the cross-action, answer, and pleas set up by the said plaintiff, E. W. Marriott, and the defendants Ernest W. Oorder, J. R. Monroe, Lillian K. Moore, E'. N. Ash, J. A. Watkins, O. H. Reid, W. A. Oostley, and any other parties, whether same be plaintiff or defendant, in the matter at bar, and say that the same áre wholly insufficient in law.”

Appellees further generally denied) each and every allegation in the pleadings above mentioned, and say that the same are not true in whole or in part. Then follow a number of special exceptions to the answer of Lillian K. Moore, and allegations that—

“Said defendant Lillian K. Moore and all other defendants and the plaintiff in this case are barred from any defense of invalidity in the proceedings or assessment levied against the defendant J. R. Monroe, and against the property hereinafter described and against the special assessment hereinafter described, and say that said parties are estopped from denying the validity and binding force and effect of the certificate sued on herein by the terms of said article 1015, c. 11, tit. 22, now article 1096, c. 9, tit. 28, of the Revised Statutes of Texas of 1925.”

It is further alleged:

“That said certificate is a valid and binding personal obligation of the defendant J. R. Monroe and a valid binding first and superior lien on the property herein described.”

There were other special denials directed to the answer and cross-action of Lillian K. Moore.

Appellees’ pleading further answered the defendant J. R. Monroe, setting up the charter of the city of'Wichita Palls and the various proceedings resulting in the improvement and assessment, and alleged that the property was then “owned a-nd held of record by the defendant J. R. Monroe,” and that the special assessment was assessed against J. R. Monroe as the then owner of the property. It was further alleged that:

“Said lien created by said certificate and assessment is a first and prior lien upon said premises, prior to all liens claimed, asserted, pleaded, or held by either E. W. Marriott, the plaintiff herein, or by either of the defendants William K. Moore, E. N. Ash, O. H. Reid, W. A. Oostley, or to all other liens, claims, or rights that may be asserted or claimed by other parties against said premises; that all of the latter mentioned liens, regardless of their amount, date of execution, date of filing, type, assertion as to priority, manner in which same were obtained, assumption, or otherwise, are second and inferior liens to the lien created /or the said L. E. Whitham & Oo., by haid city, by virtue of said assessment and the hen, claim, and indebtedness herein allegfed by the said certificate holders.”

The prayer was that the premises being considered, the Whithams—

“be declared and adjudged to have a valid and binding first and superior lien upon the property herein described, and a valid and binding personal obligation of the defendant J. R. Monroe; said lien to be declared and adjudged superior to all other hens or claims here pleaded or asserted, and further that they have judgment against the said defendant J. R. Monroe, for the said assessment, together with all accrued interest and reasonable fees for said attorneys.”

We think it apparent from the statement of the pleadings as above given, that there is no merit in appellant’s contention, to the effect that the record fails to disclose that the cross-action, as it is termed, of the ap-pellees Whithams, had been served upon the appellant, and that said answer was addressed for.relief against J. R. Monroe only. It seems evident that all parties were before the court; that appellant distinctly had notice of and answered appellees’ contentions by asserting that the vendor’s lien claimed by appellant was superior to that claimed by the appellees. The index to the transcript fails to disclose that there was any exception in behalf of appellant to the evidence offered in support of appellees’ claim, and, as it appears to us, the issues involved in appellees’ right of recovery as against appellant were plainly before the court. Indeed, it might be said that the judgment is supportable in the absence of any special plea of their lien on the part of appellees. Appellant sued for and was permitted a recovery of the title to the land in question. The whole included all interests therein, and the court, in adjudging the relief prayed for in that respect, would seem to have been authorized to only grant such part of the whole as the evidence disclosed appellant was entitled to.

As to the further contentions made in the motion, assailing the validity of the assessment lien and operative force of the charter and laws relating thereto, we adhere to the views briefly expressed in our original opinion, and conclude, on the whole, that the motion for rehearing should be overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SMITH, J.

text:
    WAKEFIELD et al. v. BURCHERS et al.
    (No. 7944.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 29, 1928.
    1. Appeal and error ¡⅜=>773(2) — Court of Civil Appeals must dismiss appeal, where no briefs are filed, and record does not show fundamental error.
    Court of Civil Appeals must dismiss an appeal, where the appellants have filed no briefs, and it does not appear from the record that fundamental error was committed in disposition of cause in court below.
    2. Appeal and error ¡§=3719(4), 755 — Action in sustaining general demurrer held fundamental, requiring consideration on appeal, even in absence of briefs or error assigned.
    Trial court’s action in sustaining general demurrer held fundamental in nature so as to require that the Court of Civil Appeals consider appeal from trial court’s order, even in absence of assignment of error or briefs.
    3. Judgment ¡§=3460(3) — Petition to set aside default judgment held to show lack of diligence cutting off recourse to equity.
    Petition, seeking to set aside former default judgment, from which it appeared former suit had remained on docket between three and four years, that defendants therein, plaintiffs on petition, were not present at trial in person or by counsel, that no appeal or writ of error was prosecuted from the judgment, that defendants therein had previously filed a suit in same court to set aside judgment, but had failed to press it, and it was dismissed for want of prosecution, held to disclose such lack of diligence as to cut off petitioner’s right of recourse to equity, making the sustaining of a general demurrer to petition proper.
    Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.
    Action by Jean Cohn Wakefield and others against O. L. Burchers and others. From an order dismissing the cause, plaintiffs appeal. Appeal dismissed.
    W. M. Groce, of San Antonio, for appellants.
    Kleberg & North, of Corpus Christi, for ap-pellees.
   SMITH, J.

In this cause appellants have filed no briefs, and it therefore becomes the duty of this court to dismiss the appeal, unless it appears from the record that fundamental error was committed in the disposition of the cause in the court- below. It appears that court sustained a general demurrer to appellants’ petition, and, upon appellants’ refusal to amend, dismissed the cause. The appeal is from the order of dismissal.

The action of the court in sustaining the general demurrer was, of course, fundamental in nature, requiring that it be considered by this court, even in the absence of assignment of error or briefs.

It appears from appellants’ petition that in July, 1922, appellees' filed a suit against appellants; that this suit remained on the docket until in March, 1926, when judgment was rendered in favor of appellees and against appellants. Neither appellants nor any counsel representing them were present at the trial, which proceeded without them. Appellants prosecuted no appeal or writ of error from that judgment, although they filed á motion for new trial a few days after it was rendered, but after the court had adjourned for the term. Later in the year appellants filed a suit in the same court to set aside the judgment complained of, but failed to press that suit, and it was subsequently dismissed for want of prosecution. Later on appellants filed this, the second suit to set aside the former judgment, and declare the same to be void, and for injunction, and it was the petition in the second suit against which the general demurrer was sustained, and of which action complaint is made in this appeal. We conclude that the facts set out in the stricken petition disclose such a lack of diligence as to cut off appellants from any right of recourse to a court of equity, and that the trial court did not err in sustaining the general demurrer.

The appeal is accordingly dismissed.