text:
    GRIFFIN v. LANGLEY et al.
    No. 2550.
    Court of Civil Appeals of Texas. El Paso.
    July 2, 1931.
    John L. Fowler, of Odessa, for plaintiff in error.
    Jno. F. Weeks, of El Paso, for defendants in error.
   HIGGINS, J.

The plaintiff in error brought this suit against E.-G. Langley, Jackie Langley, and J. I. Rogers, a partnership, and Rogers Café, a corporation, to recover a balance of $264.23 alleged to be due up on verified open account. A garnishment was sued out against the Citizens’ National Bank of Odessa, Tex. The garnishee answered that it was indebted to Jackie Langley in the sum of $336.87, and denied that it was otherwise indebted to any of the other defendants or liable upon the writ.

At the August term, 1930, a judgment by default was rendered in favor of the plaintiff against E. G.' Langley, Jackie Langley, and J. I. Rogers, for the sum sued for. Upon the same date judgment against the garnishee for like amount was rendered. Later in the term Jackie Langley and E. G. Langley filed motions' to set «aside the judgment rendered against them, setting up that they had never been served with process in the cause and setting up a meritorious defense, in that they were not members of the alleged partnership nor otherwise liable for the debt sued upon. To this motion the plaintiff in error filed a reply which is rather lengthy, alleging matters to show that E. G. and Jackie Langley were liable as partners for the debt.

The reply of the plaintiff in error to the motions did not controvert the fact that process had never been served upon E. G. and Jackie Langley. Later in the term the motions to set aside the judgments were taken up by the court and evidence thereon heard and judgment entered setting aside the judgments in both the main cause and the ancillary garnishment proceeding. The judgment in the ancillary garnishment was set aside by the court of its own motion. Upon the same date that the judgments aforesaid were set aside, the court in the main cause entered another judgment in favor of the plaintiff in error against the defendant J. I. Rogers, who had been personally served in the case, for the amount sued for, and against J. I. Rogers, E. G. Langley, and Jackie Langley, as partners, for like sum. As against the Langleys it was ordered that execution issue only against the partnership property, the judgment being in substantial compliance with article 2033, Revised Statutes, which provides that where citation has been served upon one member of a partnership firm it shall be sufficient to authorize a judgment against the firm and the partner actually served.

In the last judgment the court adjudged also that the money in the hands of the garnishee belonged to Jackie Langley as her separate funds and that it was not subject to the garnishment.

From the judgment last rendered the plaintiff in error has sued out this writ of error.

The judgment from which the writ of error is prosecuted makes no disposition of the defendant Bogers Café, a corporation, and for this reason there is some doubt in our minds as to the finality of the judgment. But from the allegations contained in the reply filed by the plaintiff in error to the motions to set aside the judgment, it is apparent that he had abandoned his cause of action against the corporation and was seeking only to recover against the alleged partners. In this condition of the record we are warranted in assuming that there was a waiver and abandonment of the suit against the corporation, or a dismissal, or discontinuance had with reference to it, and that the judgment is final so as to support the writ of error. Burton Lingo Co. v. First Baptist Church of Abilene (Tex. Com. App.) 222 S. W. 203.

It is first contended by the plaintiff in error that the filing of the motions by the Langleys to set aside the judgments against them constituted an appearance in the cause and that he was therefore entitled to judgment against them personally. In support of this contention Smith v. Smith (Tex. Civ. App.) 123 S. W. 198 is cited. The case cited has no present application for the reason that the record here shows affirmatively that the default judgment rendered was set aside because there had been no service of process upon the Langleys. That this is a distinguishing feature is apparent upon reading the opinion in the case cited. The appearance of the Langleys by their motion tio vacate the judgment on the ground that the court had no jurisdiction of their persons because of want of service did not constitute such a general appearance as would authorize the court to render a personal judgment against them at that term. 4 C. J. 1341; Atchison, T. & S. P. Ry. Co. v. Adams (Tex. Sup.) 14 S. W. 1015; Iola State Bank v. Trant (Tex. Civ. App.) 240 S. W. 621. It constituted an appearance to the succeeding term.

It is next assigned as error that the court erred in finding and holding that the money in the hands of the garnishee was other than partnership money.

We need not inquire whether the evidence adduced upon the hearing of the motions warranted this finding or not, for such issue was not involved in the main case. The issue is not within the scope of the pleadings in the main case.

The judgment in the main case should simply have been against J. I. Bogers, the partner personally served, and the firm, in accordance with article 2033, Bevised Statutes, above cited.

Whether or not that fund is subject to the garnishment as partnership assets is a matter to be decided in the ancillary garnishment case. So far as this record shows the last order entered in the ancillary proceeding was the order setting aside the judgment first rendered against the garnishee. The matter remains open for determination there.

The judgment is reformed by eliminating those portions which undertake to adjudge that the money in the hands of the garnishee is the individual property of Jackie Langley and not subject to garnishment as an asset of 'the partnership.

Judge WALTHALL does not concur in the disposition made of the case as expressed in this opinion. He thinks that the motion filed by the Langleys was, in legal effect, an objection to the jurisdiction of the court to enter the default judgment, and was an appearance in the case, and the court having found that the Langleys were partners,* a personal judgment should have been rendered against each of them for the amount of the debt.

Beformed and affirmed.


source: Caselaw Access Project

author: HICKMAN, C. J.

license: Public Domain

text:
    DANIEL et ux. v. SAYLE.
    No. 880.
    Court of Civil Appeals of Texas. Eastland.
    June 12, 1931.
    Rehearing Denied July 3, 1931.

      Jno. J. Ford, of Sweetwater, for appellants.
    Walter Carter and Jas. H. Beall, Jr., both of Sweetwater, for appellee.
   HICKMAN, C. J.

Appellee W. D. Sayle instituted this suit against appellants M. J. Daniel and wife, Gussie M. Daniel, to reform a deed made by Sayle to Daniel to certain lots in the city of Sweetwater and -to foreclose a vendor’s lien upon the property as described in the deed after reformation. The deed from Sayle to Daniel was dated November 19,1928, and conveyed lots Nos. 4, 8, 9, and 10 in block No. 90 of the Snell' Park addition to Sweetwater. A vendor’s lien was retained in the deed to secure the payment of a part of the purchase price evidenced by an installment note for the principal sum of $1,150. All of the lots conveyed by this deed were vacant lots. There were certain improvements, including a residence, upon lots 2 and 3 of the same block, and it was thought by both Sayle and Daniel at the time the deed was executed that these improvements were on lot 4, and that they passed by the deed. By his suit .appellee sought and obtained a judgment reforming his deed so as to convey lots 2, 3, 4, 8, 9, and 10. He also obtained a personal judgment against both Daniel and his wife for the principal of the note together with interest and attorney’s fees, less certain credits, and for a foreclosure of a vendor’s lien on all six of the lots.

Only one issue was submitted to the jury. That issue was as follows: “At the time of the negotiation of the trade between plaintiff and defendant, and the execution of the deed by the plaintiff to the defendant, was there a mutual mistake as to the lot or lots upon which the house and improvements were located?” This issue was answered: “Yes.”

The statement of facts discloses without controversy the following history of the title to this property: The entire block, consisting of lots Nos. 1 to 12, inclusive, was conveyed by Baird Development Company to H. L. Scales on January 5, 1916. By warranty deed dated January 5, 1923, Scales and wife conveyed to Charles Spillers lots 4 and 9 of this block. By warranty deed dated February 7, 1924, Spillers and wife conveyed the same property to Alice L. Creel, who by warranty deed dated August 17,1925, conveyed samé to G. W. Byrd. By warranty deed dated April 15, 1926, H. D. Scales conveyed to Byrd lot No. 10 of this block, and by like deed of date August 30, 1928, Scales conveyed to Byrd lot No. 8. By these 'Several deeds Byrd became the owner of lots 4, 8, 9, and 10. By a warranty deed dated September 17, 1928, Byrd and wife conveyed to appellee W. D. Sayle lots 4, 8, 9, and 10, being all the lots owned by Byrd in this block. Two months later, appellee Sayle, Jby warranty deed dated November 19, 1928, conveyed the same four lots to appellant M. J. Daniel, retaining in his deed a vendor’s lien to secure an installment note for $1,150 executed as a part of the purchase price. This latter deed is the one reformed by the judgment so as to include lots 2 and 3 in addition to those described therein.

The undisputed facts, as well as the findings of the jury, establish that Sayles and Daniel traded with reference to the house and other improvements, and thought same were situated upon lot No. 4. After Daniel and wife took possession of the property, they discovered that the improvements were on lots Nos. 2 and 3, and procured a warranty deed from H. B. Scales to these two lots for a cash consideration of $60. The deed discloses that Seales resided in Dallas county and he doubtless did not.know that the two lots which he was conveying to Daniel had improvements thereon. The evidence fails to disclose who placed the improvements on these lots, but indicates that Spillers likely placed them thereon through mistake in 1923.

Many questions are presented by appellants in their brief, but we shall not find it necessary to discuss all of them, in view of our holdings on the questions discussed. It was disclosed by the evidence that, at the time appellee conveyed the four lots above described to appellant M. J. Daniel, a deed of trust was executed by Daniel and wife to Walter Carter, trustee, upon the property conveyed, as additional security for the payment of the purchase-money note. Prior to the trial of this case, and after appellee knew appellants had purchased lots Nos. 2 and 3 and refused to make further payments on their note, the trustee, at the request of appellee, sold the property under the powers contained in the deed of trust, and one Joseph Jenkins became the purchaser thereof. Jenkins was not made a party to this suit and no facts were pleaded or proved showing any irregularity or invalidity in the trustee’s sale. The parties were litigating over land that belonged to Jenkins, and the judgment foreclosed a lien which had already been extinguished. Clearly Jenkins was a necessary party to litigation having for its purpose the establishment and foreclosure of a lien upon his property. Unless he was bound by the decree, same was ineffective. Parker v. Casey (Tex. Civ. App.) 29 S.W.(2d) 426.

Furthermore, there was no lien about which to litigate. When the deed of conveyance was made and delivered by the trustee to Jenkins, he took the- property freed of the vendor's lien. He is in the same attitude as if he had purchased under a decree of court in a foreclosure suit. It would not likely be contended that one could foreclose a vendor’s lien on land by a court decree and then, after the land had been sold under the judgment, institute another suit to subject the land again to the balance due on the indebtedness. When the property was sold to satisfy appellee’s demand, he obtained all he contracted for by way of security.

Appellee contends that the question is one of election of remedies, and, since appellants did not plead an election, they cannot complain. We do not regard it as being as much a question of election of remedies, as a question of the existence vel non of any lien to foreclose. Our view is that, regarding, as we must under this record, the sale under the power contained in the deed of trust as valid, all the lien ever possessed by appellee against the property described in the deed of trust ceased to be. It was extinguished, foreclosed. Until the deed executed by the trustee to Jenkins is invalidated and canceled in a proceeding to which appellants, the trustee, and Jenkins are parties, there js no lien to foreclose.

Some very interesting questions with regard to the right of reformation are presented. We shall not express a view on these questions. The remedy of reformation sought was ancillary to the main purpose of the suit, namely, the foreclosure of the vendor’s lien. Appellee is not interested in reforming his deed, unless at the same time he establishes and forecloses a lien on the property described in the deed is reformed. If he has no lien, it would serve no purpose for us to enter into a discussion of whether or not he might reform his deed if he had a lien. It will be the proper time to consider that question when a record is presented to us disclosing that, if reformation is granted, the right to a foreclosure exists.

Appellee was .awarded a personal money judgment against both appellants. The pleadings disclose that appellant Gussie M. Daniel is the wife of M. J. Daniel, and was at the time she executed the note, and no facts are pleaded which would make her personally liable thereon. A married woman is liable for purchase money only when the things purchased were necessaries or for the benefit of her separate estate. When she joins her husband in a note for the purchase price of real estate, she does not thereby incur any personal liability. The land can be recovered and the lien foreclosed against her, but her separate estate cannot be subjected to the payment of a judgment rendered on the note. Many cases so holding are collated in Speer’s Law of Marital Rights in Texas (3d Ed.) § 191, footnote 7. The petition stated no cause of action against her, on the note.

The judgment of the trial court is reversed, and the cause remanded.


author: JONES, C. J.

text:
    BARNUM et al. v. LANCASTER HARDWARE CO.
    No. 11046.
    Court of Civil Appeals of Texas. Dallas.
    June 20, 1931.
    Rehearing Denied July 18, 1931.
    White & Yarborough, of Dallas, for appellants.

      Bell & Clark, Howard G. Steere, and J. Harold Goode, all of Dallas, for appellee.
   JONES, C. J.

Appellee, Lancaster Hardware Company, instituted suit in Dallas county court at law No. 2, to recover from the estate of G. H. Williams, deceased, a balance of $280, alleged to be due as funeral expenses for the burial of deceased. Appellant Mrs. Henrietta Barnum is the duly qualified and acting admin-istratrix of such estate, and the suit was instituted against' her in such capacity only; her husband, G. S. Barnum, is the other appellant and is only a pro forma party. The petition alleged that appellants resided in Yah Zandt county, that Mrs. Barnum was the administratrix of the estate of Williams, and that such estate was being administered in the probate court of Dallas county.

Appellants seasonably filed a plea of privilege in the statutory form, alleging their residence to be in Yan Zandt County, Texas, and that “no exception to exclusive venue in the county of one’s residence, provided by law, exists in said cause; that this suit does not come within any exception provided by law in such case authorizing this suit to be brought or maintained in the County of Dallas, State of Texas, or elsewhere outside of said County of Van Zandt, Texas.” Appellee filed a controverting affidavit, but same was stricken out on motion of appellants, because filed subsequent to the statutory time within which such plea may be legally filed. Appel-lee' also filed a demurrer to the' plea of privilege, specifically challenging the sufficiency of the allegations of the plea, as against the cause of action alleged in appellee’s petition. This demurrer was sustained, and judgment was entered accordingly. ■ From this judgment, sustaining the demurrer to the plea of privilege and dismissing same, appellants have duly perfected an appeal.

Article 1995, R. S., provides that no person who is an inhabitant of this state shall be,sued out of the county in which he has his domicile, except in certain specified exceptions. Subdivision 6 of said article specifies one of these exceptions, and provides that, “If the suit is against an executor, administrator or guardian, as such, to establish a money demand against the estate which he represents, suit may be brought in the county in which'such estate is administered.” The suit instituted by appellee against appellants', as shown by the allegations in its petition, is clearly within this quoted exception to the general venue statute.

Unless these allegations in, appellee’s petition fixing venue in Dallas county are controverted by the allegations in appellant’s plea of privilege, such plea of privilege is insufficient on its face, and is therefore subject to the demurrer presented by appellee and sustained by the court. Yates et al. v. State et al. (Tex. Civ. App.) 3 S.W.(2d) 114, and cases therein cited; Humble Pipe Line Co. v. Kincaid (Tex. Civ. App.) 19 S.W.(2d) 144, and cases therein cited.

The trial court correctly sustained the motion to strike out appellee’s controverting affidavit, and such controverting affidavit cannot be considered in disposing of any questions raised on this appeal.'

If a plea of privilege be filed in a pending suit, and the allegations of fact contained therein are sufficient to make a prima facie case for the removal of the cause to the county of defendant’s residence, then the plaintiff must file a controverting affidavit, or the court must accept as true the venue facts, as alleged in defendant’s plea of privilege, and enter a judgment of removal. However, if the allegations of fact in the plea of privilege are insufficient on their face to make a prima facie case for removal under the allegations of plaintiff’s petition, and such insufficiency is brought to the attention of the court by a proper exception to the plea of privilege, it becomes the duty of the court to determine plaintiffs’ exception under the allegations of his petition. Yates et al. v. State et al.; Humble Pipe Line Co. v. Kincaid, supra. It follows that if plaintiff’s petition contains allegations which bring a suit clearly within one of the exceptions named in article 1995, supra, and these allegations are only controverted by allegations of the plea of privilege, which state merely a conclusion of law, that “no exception to exclusive venue in the county of one’s residence provided by law exists,” as are the allegations in the instant case, and the specific allegations of the petition, fixing venue in the county where the suit is filed, under one of the specific exceptions, are not otherwise controverted, the plea of privilege is subject to demurrer. See authorities above cited.

In the instant case, there being' no controverting affidavit by appellee, there was presented to the trial court by appellee’s demurrer only a question of law as to the sufficiency of the facts alleged in the plea of privilege to make a prima facie case for removal of the cause to Van Zandt county, the residence of appellants. This question of law must be determined by the allegations of fact contained in the plea of privilege as to whether they controvert the allegations of fact in appellee’s petition alleging a cause of action for a money demand against the Williams’ estate, of which Mrs. Barnum is alleged to be the duly qualified and acting administra-trix. These allegations of the petition are not met with allegations stating contrary facts, or that such allegations were fraudulently made for the purpose of venue, but are only met by a mere conclusion of law that the suit does not come within any of the exceptions to the general venue statute. We conclude, therefore, that the plea of privilege did not present a prima facie ease for change of venue and was subject to the demurrer urged against it, and such allegations in the petition must he considered as uncontroverted by appellant.

It follows that, in our opinion, the court did not err in sustaining the demurrer to the plea of privilege, that judgment should be affirmed, and it is so ordered.

Affirmed.


author: VAUGHAN, J.

text:
    COMMERCIAL STANDARD INS. CO. v. McGEE et al.
    No. 11023.
    Court of Civil Appeals of Texas. Dallas.
    July 18, 1931.

      W. P. Bondies, D. A. Prank, and Hobert Price, all of Dallas, for appellant.
    White & Yarborough, of Dallas, for ap-pellees.
   VAUGHAN, J.

This suit arose under the Workmen’s Compensation Law. ' On October 14, 1929, an award was made by the Industrial Accident Board on the petition of P. P. McGee, appel-lee, against Commercial Standard Insurance Company, appellant, as compensation for injuries alleged to have been sustained by ap-pellee in the course of his, employment as an employee of Wyatt Metal & Boiler Works, of Dallas county, Tex. On November 2,1929, appellant filed its original petition in the court below, appealing from said award. Ap-pellee, his attorneys, Messrs. John White and H. J. Yarborough, were joined as defendants, they having been mentioned in and to participate in the award made by said board. Said parties, as defendants in the court below, filed an answer and cross-action presenting the usual allegations as to formal matters in a compensation suit, and sought recovery in behalf of appellee McGee for compensation at the rate of $12.46 per week for a period of 401 weeks, alleging that said McGee had been totally and permanently disabled by virtue of the injuries claimed to have been sustained by him on or about June 13, 1929, while working in Dallas county, Tex., for Wyatt Metal & Boiler Works while he was attempting to lift a heavy piece of steel, whereby he accidentally strained and otherwise injured certain tendons, ligaments, muscles, etc., in his neck, shoulders, and arms. There were the usual allegations of employment of attorney with the agreement to pay the one-third of the recovery, and of the hardships that would. result if a lump sum settlement therefor was denied.

Appellant’s answer consisted of a general demurrer, special exceptions, a general denial, and the following special denial; ü » * » ⅛ ⅜⅛,⅛ defendant was injured at all, which is not admitted but is denied, that his injuries were not general, but were specific and his injury consisted in nothing except a sprain or strain to the arm, if there was any such injury, and there was no injury sustained by the defendant that could in any way cause total and permanent injury. * * ⅜ ”

In response to the special issue submitted, the jury found that appellee sustained accidental injuries on the occasion alleged; that he was totally incapacitated by result of such injuries; that game was not permanent and would continue for 200 weeksthat no partial incapacity would result; that hardship would result if compensation was not paid in a lump sum.

The trial court upon this verdict rendered judgment in favor of appellee McGee against appellant for $969.50, weekly compensation that matured for a period of 75 weeks from date of injury until date of trial, and for the further sum of $12.46 per week for a period of 125 weeks as compensation subsequent to November 27, 1930. By due and comprehensive proceedings, said cause was presented to this court for review.

Appellant by propositions Nos^ 1, 2, 3, and 5 contended that the findings of "the jury above set out were clearly contrary to the overwhelming preponderance of the evidence, and therefore the verdict should be set aside. A careful examination of all the evidence, with due effect given thereto, apparently sustains said propositions. However, we are required to determine the sufficiency of the evidence to sustain said findings from the evidence before the jury supporting same, and, in considering the testimony of the witnesses, we are denied passing upon their credibility, as that is a prerogative that rests exclusively with the jury, appellate courts being confined to consider alone the probative effect of the evidence; this perhaps includes the right to determine the facts established by the evidence. Therefore, inasmuch as there was introduced evidence which, if believed by the jury to be true, was sufficient, upon which the findings made could be based, we are required to overrule said propositions. • This holding is by no means to'indicate that this court, as an original proposition presented for its determination, would have reached the same conclusion, from all of the evidence introduced, as that reached by the jury.- We are only applying and abiding by the rules of law that govern appellate courts in passing upon and determining questions of this character.

Appellant, by its fourth proposition, contends that the trial court erred in excluding “from the evidence a written statement made by Howard Rollison on October 7, 1929, in which spid witness stated that appellee McGee never sustained any accidental injuries while working for Wyatt Metal & Boiler Works, as claimed by Mm, on the ground, that said witness denied making said statement after sixteen admitted genuine signatures of said witness had been introduced in evidence, which the jury had a right to compare with the signature on said statement, claimed to have been made by •said Rollison.” Witness Rollison admitted as genuine his signatures indorsing seven different checks as being genuine, ‘and nine signatures written by him on a piece of paper in the presence of the jury, which were admitted in evidence. Said witness testified that appellee McGee sustained injuries a's alleged by him while working for Wyatt Metal & Boiler Works on June 13, 1929. Said statement was offered in evidence as bearing upon the credibility of said witness, and was excluded solely upon the ground that Rollison testified that he did not make it. We think this was error. Rollison was the only witness corroborating appellee McGee; that he (McGee) had sustained the injuries alleged by him at the time and on the occasion involved, and in the manner alleged; hence said statement was offered in evidence for the purpose of discrediting Rol-lison on a very material issue. Therefore, the sixteen admitted signatures and the manner in which Rollison testified, both as to corroborating McGee and in reference to whether or not he made the statement excluded, presented an issue for the jury to pass upon, viz., whether or not the signature on the excluded statement was that of said Rollison. The prerogative of the jury to reach a conclusion upon this question by an examination and comparison of the admitted signatures of said Rollison, with the disputed signature to the excluded statement, was to be exercised, although the jury was not aided by expert testimony based upon said signatures; this because expert testimony could only have furnished additional aid to the jury in determining the issue as to whether or not the disputed signature was that of said Rollison. Kennedy v. Upshaw, 64 Tex. 411; Barnes v. Barnes (Tex. Civ. App.) 261 S. W. 485; Kveton v. Keding et al. (Tex. Civ. App.) 286 S. W. 673; Latham v. Jordan (Tex. Com. App.) 17 S.W.(2d) 805. Said proposition is therefore sustained.

Appellant complains. of the action of the trial court in sustaining objections to and excluding the following testimony of its witness, Dr. J. H. Marshall: “Now if the brachia plexus had been injured or paralyzed, and the nerve suspended on one side, he would have a flaccid paralysis. After you 'have a flaccid paralysis there would be no pain and no sensation, and no power, couldn’t move it, couldn’t feel it, and of course if you had the definite thing you would get some stuffing of the tissues, because when the nerve supply is gone the tissue perishes. On the other hand, coming right back, he would have this sub-static contraction of the arm with definite pain, all in there, so that would be comparable to connecting up your wires i again. It would be impossible, we know that. You don’t get a condition of that kind once and then get another condition in another case, because it shows that the nerves are intact and that he would not have a flaccid paralysis one minute and a spasm or contraction or pain the next minute,” on the ground that same was argumentative. This ruling we think was material error. Missouri, K. & T. Railway Co. v. Criswell, 34 Tex. Civ. App. 278, 78 S. W. 388; St. Louis Southwestern Railway Co. v. Taylor, 58 Tex. Civ. App. 139, 123 S. W. 714; St. Louis, S. F. & T. Railway Co. v. Overturf (Tex. Civ. App.) 163 S. W. 639. However, this error would not of itself justify a reversal of the judgment; this because the identical evidence contained in the bill of exception appears in the statement of facts, from which we mpst assume that, as a matter of fact, said testimony was not excluded from, but remained before, the jury. The ruling sustaining appellee’s objection was not followed by a motion to withdraw said evidence from the jury.

Appellant’s propositions Nos. 10, 11, 12, and 13 present as error the refusal of the trial court to submit, respectively, in connection with the following special issues given to the jury, an appropriate charge on the burden of proof, viz.: i

“No. 1: Do you find from a preponderance of the evidence that the defendant, F. F. McGee, sustained accidental injuries on June 13, 1929?”
“No. 2: Do you find from a preponderance of the evidence that the injuries, if any, sustained by the defendant, F. F. McGee, on June 13, 1929, were sustained by him while an employee of Wyatt Metal & Boiler Works?
“No. 3: Do you find from a preponderance of the evidence that the defendant, F. F. McGee, sustained such injuries, if any, in the course of his employment, as an employee of Wyatt Metal & Boiler Works?
“No. 4. Do you find from a preponderance of the evidence that the defendant, F. F. McGee, sustained total incapacity as a natural result of injuries, if any, sustained by him while an employee of Wyatt Metal & Boiler Works, in the due course of his employment as such?”

The objection to said issues, respectively, being that the court failed to define burden of proof, and did not tell the jury that the burden was upon appellee McGee to establish the affirmative of said issues, and, as a part of each objection to the manner and form in which said issues were submitted, moved the court to properly instruct the jury that the burden of proof was upon said appel-lee to establish the affirmative of said special issues. From the holding in the following cases, we have been of the opinion that the rule in reference to charging on the burden of proof in cases submitted on special issues prohibited instructing the jury that the burden of proof was upon either party to a suit to establish the .affirmative or negative answers to the issues Submitted [Houston & T. C. Ry. Co. v. Stribling (Tex. Civ. App.) 293 S. W. 890; Texas Indemnity Ins. Co. v. Allison (Tex. Civ. App.) 31 S.W.(2d) 319; Texas & Pacific Ry. Co. v. Bufkin (Tex. Civ. App.) 19 S.W.(2d) 343; Ford v. Couch (Tex. Civ. App.) 16 S.W.(2d) 869; Stevenson v. H. & T. C. Ry. Co. (Tex. Civ. App.) 19 S.W.(2d) 207; Texas Employers’ Ins. Ass’n v. Adcock (Tex. Civ. App.) 27 S.W.(2d) 363), and that it was sufficient to instruct the jury, in reference to the burden of proof, as follows: “You will answer special issues submitted from the preponderance of the evidence, that is, the greater degree and weight of credible testimony before you.” However, as indicated by the following observation made in the case of Houston & T. C. Ry. Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995, 999, viz.: “Since this case will be reversed and remanded, we think it proper to state that, when plaintiff pleads and relies for recovery upon specific acts of negligence on the part of the defendant, and the case is submitted to the jury upon special issues, it is proper to instruct the jury as to those acts of negligence so chaiged and relied upon that the burden is upon the plaintiff to establish them by a preponderance of the evidence. When the defendant challenges the right of plaintiff to recover by reason of certain exceptions, and that by virtue of certain exceptions there is no liability on the part of the defendant, and special issues based upon such exceptions are submitted to the jury upon such special issues, it. is proper to instruct the jury that the burden is upon the defendant to- establish them by a preponderance of the evidence,” it is apparent that the views of the Supreme Court are in harmony with appellant’s propositions under review. In the following cases there are expressions that apparently support the pronouncement made in the Stevenson Case; Nobles v. Texas Indemnity Co. (Tex. Com. App.) 12 S.W.(2d) 199; Petroleum Casualty Co. v. Bristow (Tex. Civ. App.) 21 S.W.(2d) 9; Texas Employers’ Ins. Ass’n v. Stephens (Tex. Civ. App.) 22 S.W.(2d) 144; [for opinion by Tex. Civ. App. in the Stevenson Case, see 19 S.W.(2d) 207]; Morgan v. Maunders (Tex. Civ. App.) 37 S.W.(2d) 791, 793. Therefore, we think it well that trial courts observe the rule as stated in the Stevenson Case.

Appellant, by its fourteenth proposi'tion, presents as material error the refusal to give the following special issue:

“Do yoit find that the permanent incapacity, if any, which the defendant McGee will sustain will be directly attributable to causes independent of the alleged injuries of June 13, 1929?
“You are hereby instructed that the burden of proof is upon the defendant, F. F. McGee, to establish the negative of the foregoing issue by a preponderance of the evidence.”

The following witnesses testified in reference to the condition of appellee’s health during a period of two to six years prior to his alleged injuries as follows: “Mrs. N. M. Hunt testified: He worked for me about seven years ago. He worked for me several months that time * ' * *. Later on he worked about six or seven months. We had to let him go again. I have seen him have spells While he was working for me. I noticed him jerking; he was frothing at the mouth and his arms were jerking; that is the way; * * * his face was red and back against his body, and possibly fifteen minutes under the influence of the ‘jerk attack’ and he was really jerking so that we could hardly hold his arms. * * * They were more frequent the last time he worked for us. I suppose in the several months he worked for us, he had maybe five or six spells. They became so frequent we could not depend on him to milk so we had to let him go.”

R. A. Rich testified that McGee was a laborer under him between 30 and 60 days; that he had some kind of spells during that time; recalled two of them; he got shakey and gave down; he was under the influence of that spell for something like 30 minutes.

Ellison King testified: “I have known Mr. F. F. McGee since 1926. I have known of Mr. McGee having fits. I have known him to have them five or six times.”

Ira King testified: “I have known him about six years. I was with him when he had a spell. I have been with him three times. He had the first fit * * * he just sat down and, commenced to shake, and told me to stick a glove in his mouth to keep his jaws from locking and he sat there for, I guess, about an hour and then he got better. We gave him water and washed his face and rubbed his palms and fingers and kept his arms spread out to keep them from drawing up. * * * His eyes were set in his head, He just slobbered; he couldn’t open his mouth; I stuck a glove in there to keep his jaws from locking.”

Witness described the second spell as having occurred at Duncanville, stating that it was not a very hard one. The third one was at Hale Station and was) a little bit lighter than the second one.

Dr. J. H. Marshall testified in reference to the effect produced by epilepsy (fits) as follows: “If I had a history of a man over a period of 3 or 4 years possibly 7 years, when he had those fits and he went blind and had his head thrown back and his hands trembled and his arms came up in a spasmodic way and his legs drew up and he got down flat and had to be supported and then he sat down and laid down and that lasted over a period of 15 or 20 minutes and he would froth at the mouth and they had to put a spoon in his mouth to keep him from biting his tongue, I would say that he had epilepsy. This flaccid condition where his hands were drawn up could be called a symptom of epilepsy. He could have a chain of symptoms, brain lesion, due to epilepsy, because it is a brain condition.”

Dr. Richard M. Smith testified as follows:

“Epilepsy indicates disturbance of the nervous condition. If a man has had over a period of 7, 8 or 10 years faints, or fits, where he suddenly begins to contract his head and chew his tongue and his arms and legs begin to contract and jerk, and he falls and collapses, and froths at the mouth, and that condition existed for a period of from 15 to 30 minutes, I would judge from his history that that was a condition of existing epilepsy. The serious form of to differentiate it from the petitmal form of epilepsy where they don’t fall, or lose consciousness. Epilepsy always develops an unstable nervous system. It also goes to conditions, that — later in life — often develop what we call epileptic dementia — ■ mental disease from continued existence of epilepsy. * ⅜ ⅜ As a Neurologist I formed an opinion as to what was wrong with this man. I consider this man has a condition which we call major hysteria.” ⅛
Dr. Howard Dupuy testified as follows: “In my examination I could see no evidence of injury whatever as he spoke of — any injury that had torn his shoulder, nor could I find any evidence that I could see of any injury. I did not test the reflexes in that examination. * * * My conclusions were that his Symptoms were not symptoms that logically result from any injury that I knew of, or could conceive of, about his shoulder.”

To the same effect, Dr. W. 0. Brown, Dr. J. H. Marshall, and Dr. Richard M. Smith testified.

Appellee alleged a cause of action under the requirements of the Workmen’s Compensation Law, title 130, R. S. 1925, and necessarily had to allege his employment, that he was injured while in the performance of his duties, that his disability resulted therefrom, etc. Appellant’s general denial and special denial put in issue every material allegation upon which the burden of proof rested upon appellee McGee, and it was permissible, under the state of pleadings, as above stated, for appellant to introduce evidence to show that the injuries alleged to have been sustained by appellee McGee, which were claimed to have produced his disability, were not the result of any accidental injuries received, as alleged, but were due to a nervous disorder from which he had been suffering for a period of years prior to his alleged accident; therefore appellant had the right to have submitted the issue as to whether or not McGee’s disability, if any, was directly attributable to causes independent of his alleged injury.

Over proper objections made thereto by appellant, Mr. John White, of counsel' for appellee, in making the closing argument in the case to the jury, was permitted by the trial court to say: “Who are the parties here? The Commercial Standard Insurance Company is the plaintiff and we are the defendants * * * they appealed this law suit * * * I never gaid anything about the award of the Board, I said that they appealed it, they brought us in, they brought us there, and they are the ones that are the cause of us being here.”

Said remarks could have no legitimate place in the argument of counsel upon the issues presented to the jury for their determination, and could only apply and have reference to the fact that an award favorable to appellee had been made by the Industrial Accident Board, from which an appeal had been prosecuted by appellant. The following provisions of article 8307, § 5, R. S. 1925, viz.:' “Any interested party who is not willing and does not consent to abide by the final ruling and decision of said board * ⅝ *' (may) bring suit to set - aside said final ruling * * * and the court shall in either event determine the issues in such cause instead of the board upon trial de novo and the burden of proof shall be upon the party claiming compensation,” not only forbids proceedings had before the board from being used as evidence before the jury, but any reference thereto in discussing the ease before that body; this for the wholesome purpose of preventing a jury, trying a cause, from being in anywise influenced by the action of the board in the ease. The final award made by the board is only admissible in evidence to be considered by the judge trying the case in determining the question of • jurisdiction of the court; that is, whether its jurisdiction had been properly invoked. Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302; article 8307, § 5, supra; Texas Employers’ Ass’n v. Downing (Tex. Civ. App.) 218 S.W. 112. That the remarks of counsel under review were improperly made and calculated to’ cause the jurors to believe that the board had found in favor of appellee, and thereby Influenced, at least in some degree, the jury to find in favor of appellee, we do not think can be seriously doubted, but to the contrary, the natural conclusion is that such was the effect of said remarks.

Propositions Nos. 17, 18, 19, 20, 21, and 22 relate to and challenge as being improper certain language used by Mr. H. J. Yarborough, one of appellee’s attorneys, as being improper argument made in the opening presentation of the cause to the jury. Likewise, propositions Nos. 23, 25, 26, 27, 28, 29, 30, and 31 challenge certain statements made by Mr. John White, one of appellee’s attorneys, in his closing argument. That the language used by said attorneys, respectively, and objected to was improper and perliaps prejudicial, and calculated to unduly divert the jury from the proper consideration of the real merits of the issues submitted, we believe is apparent on the face of the arguments of said counsel thus subjected to review. However, in view of the fact that the cause will have to be reversed on other grounds, we assume that it will only be necessary to prevent a repetition thereof to admonish appellee’s .attorneys to observe, on a retrial of this cause, the rules governing the discussion of a cause before a jury, as reviewed in Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435. In conclusion, we feel constrained to say, although deprecating the necessity that demands the reversal of any cause, this for the reason that the delay thereby caused generally works a hardship, on the litigant that should prevail, and increases the burdensome cost of litigation borne respectively by taxpayers and the litigants, nevertheless, so long as the trial of a cause is not so conducted as to secure a just and impartial legal trial, this court must of a necessity continue to discharge the duties enjoined upon appellate courts; viz., to review a cause for and correct all material errors that may be presented by the record, whereby such a trial as designed by the law to be had was denied. Because of the material errors above pointed out, the judgment of the trial court is reversed, and cause remanded.

Reversed and remanded.


text:
    EZELL v. KNAPP & ELLIOTT.
    No. 695.
    Court of Civil Appeals of Texas. Eastland.
    May 2, 1930.
    Rehearing Denied July 10, 1931.
    Beall, Beall & Beall, of Sweetwater, for appellants.
    T. Yard Woodruff and B. M. Neblett, both of Sweetwater, for appellee.
   HICKMAN, C. J.

Appellees recovered a judgment against appellant in the justice court of precinct No. 1, Nolan county. Within due time, appellant filed with the justice of the peace an appeal bond, which was approved by him, and a transcript of the proceedings in the justice court prepared and filed in the county court. After the case was filed in the county court, appellees filed a motion to quash the appeal bond and dismiss the appeal on the ground that the bond was defective. Before this motion was acted upon in that court, appellant filed his motion for permission to file a new and amended bond. The court overruled appellant’s motion, but sustained the motion of. appellees, and entered its judgment quashing the appeal bond, dismissing the cause, and adjudging all costs in the county court against appellant, toe appeal is from that judgment.

There were two grounds relied upon in the motion of appellees to quash the appeal bond and dismiss the appeal, the first ground being stated in the motion in the following language: “Plaintiffs would show to the Court that the purported appeal bond filed herein by the defendant does not comply with the provisions of article 2456,. Revised Statutes of 1925, in that said appeal bond is not in double the amount of the judgment; said judgment in said Justice Court having been for the sum of $179.80, together with interest thereon from July 13, A. D., 1928, at the rate of six per cent, per annum. Judgment was rendered on March 1, 1929, and the interest on said-amount up to March 1, 1929, amounted to the sum of $6.75, thereby making the true and correct amount of said judgment the sum of $186.55. That said purported appeal bond is for the sum of only $359.60, when under the law, in order to support an appeal to this court said bond should be .for the sum of at least $373.10.”

The second ground is stated in the motion in the following language; “Plaintiffs would further show to the court that the purported appeal bond filed herein by the defendant is not made payable to all the appellees as required by law, in that the said bond is payable to Knapp & Elliott, whereas T. E. Knapp and Frank Elliott are the appellees herein, and there being no such person in law as Knapp & Elliott.”

Certain objections to appellant’s brief urged by appellees will be disposed of before considering the appeal on its merits. Objection is urged to a consideration of appellant’s third assignment of error and the proposition germane thereto.. The objection seems well taken, as the error assigned is one not fundamental in its nature, and which does not appear to have ever been presented to the trial court. The only showing in the record to support this assignment and proposition is a page in the transcript purporting to be an excerpt from the judge’s trial docket showing that the case had been continued by agreement at a prior term, without any notation that such continuance was without prejudice to the right of appellees to file their motion to dismiss at a later term. This court has-recently held in the following cases that notations in the judge’s trial docket form no part of the transcript, and cannot be considered on appeal: Burleson v. Moffett, 3 S.W.(2d) 544; Erwin v. Griffin, 24 S.W.(2d) 78; Johnson v. Williams, 24 S.W.(2d) 79.

Objection is also made to the statement of the nature and result of the suit contained’in appellant’s brief. We agree with appellee that the statement is objectionable. It purports to detail testimony of witnesses upon the trial of the case in the justice court. There is no statement of facts in the record, and the trial in the justice court is not before us. In so far as the statement in appellant's brief undertakes to recite this evidence, it is objectionable. But there is a clear statement of the nature and result of this action, with proper references to the record, which immediately follows the recital of alleged testimony in the justice court. We would not, therefore, be warranted in dismissing the appeal because of this surplusage in the statement. This is particularly true, when, as in the instant case, we are able to determine clearly, without any undue expenditure of time and labor, the questions of law presented for our review.

There is also an objection to the bill of exceptions contained in the record, wherein are preserved all of the rulings of the court in one bill. We do not find it necessary to determine the question of the regularity of this bill of exceptions, for the reason that the judgment sustaining the motion to quash and dismiss the appeal is a final judgment, putting an end to the litigation. The transcript contains this judgment, with appellant’s exceptions thereto and notice of appeal. This is the proper way to present the question to this court, and the bill of exceptions is sur-plusage. We think the record presents to us for review the correctness of the judgment of the trial court in dismissing -the appeal, and shall dispose of the appeal on its merits.

As noted, the first objection to the original appeal bond filed by the appellant in justice court was that same was insufficient in amount. Since this case was submitted in ■this court, there has been published an opinion by the Court of Civil Appeals at Amarillo in the case of Vick v. Mobeetie Land Co., 24 S.W.(2d) 735, in which this exact question was presented, and in which it was decided that, where a ease is appealed from the justice court to the county court, the latter court has the inherent right to permit an amendment of the appeal bond, curing its insufficiency as to amount. Several cases are cited in support of that holding. We have read the authorities there relied upon and believe that, as a whole, they support the conclusion announced.

The second ground of the motion to quash the appeal bond and dismiss the appeal was, as noted, that the bond was payable to Knapp & Elliott, without naming the individual members composing the partnership. We think this defect, if it may be considered a defect at all, is one as to form, and not as to substance, and the authorities above cited and referred to, which would permit an amendment as to the amount of the bond, would clearly .authorize an amendment to cure this alleged defect.

The authorities cited by the Amarillo court in the above case were apparently not presented to the trial judge for his consideration. 1-Ie doubtless based his ruling, in part at least, upon the authority of Briggs v. Buckner (Tex. Civ. App.) 19 S.W.(2d) 190, 191, which was published shortly before the ruling was made. That authority would seem to justify the holding of the trial court in the instant case. We express no opinion as to the statutory constructions made in that case, but rest our decision upon the case of Vick v. Mobeetie Land Co., supra, and the authorities there cited.

It is urged that the amended appeal bond tendered by appellant in the county court was itself defective, in that same had not been filed with, and approved, by, the county clerk. The whole purpose of his motion was to procure an order authorizing him to file an amended bond. Without such order, it would have been a useless thing to file the bond with the county clerk, as the statutory time for filing an appeal bond in an appeal from the justice to the county court had expired, and the clerk would not have been authorized to file and approve same.

It is our opinion that the court erred in dismissing the cause and not permitting the filing of an amended appeal bond curing the deficiencies in the original bond. The judgment will accordingly be reversed, and the cause remanded.

On Rehearing.

After the motion for rehearing was filed in t-his cause, we certified certain questions to the Supreme Court upon the request of appel-lees.

The answers of the Supreme Court to the certified questions may be found in Ezell v. Knapp & Elliott (Tex. Com. App.) 39 S.W.(2d) 829. Upon the authority of that opinion, answering certified questions, the motion for rehearing will be overruled.


author: McOLENDON, C. J.

text:
    HILL et al. v. DOFFLEMYER et al.
    No. 7613.
    Court of Civil Appeals of Texas. Austin.
    June 17, 1931.
    Rehearing Denied July 8, 1931.
    G. A. Walters, of San Saba, for appellants.
    J. Edward Johnson, of Brownwood, and J. Mitch Johnson and Oarlos C. Ashley, both of San Saba, for appellees.
   McOLENDON, C. J.

Appellees, Dofflemyer and Norris (relators below and eandidatés respectively for the positions of county chairman and precinct No. 1 chairman in the Republican Party election held in San Saba county, on July 26, 1939) sued Hill, county chairman, and the members of the county executive committee of said party in said county (respondents below) for mandamus to compel Hill to account to the executive committee for the returns from the voting box in precinct No. 1, and to compel the members of the executive committee to canvass said returns and certify the result thereof to the county clerk of San Saba county. From a judgment awarding the mandamus, the respondents have appealed.

The pertinent facts shown by the record, follow: Elections were held in only three of the county precincts, Nos. 1, 11, and 21. The returns of precinct No. 1 were placed inside the ballot box, which was locked, with the key left in the lock, and in this condition was delivered shortly after the polls closed by the election officers to Hill, who kept the" box in his possession until the following Monday, without opening it, when he delivered it in the same condition to the county clerk. When the county executive committee met the following Saturday, they canvassed the returns from precincts 11 and 21,' which showed a majority in favor of Hill over his opponent Dofflemyer for county chairman. The committee declined to canvass the returns from precinct No. 1, on the ground that they were in the possession of the county clerk and they had no authority to take them from his possession or to unlock the ballot box in which they were contained. Thereupon this suit was brought and at the hearing the trial court required the clerk to produce the ballot box in court and had it opened and its contents examined. The court found that the election judges were not sworn; that the returns were not made in triplicate; and that the judges of election did not sign the returns. He found, however, that the poll list, tally sheets, and returns in the election box were identified by the election officers of precinct No. 1, and disclosed the result of .the votes of said box. If the votes shown by the tally sheet in said box were counted, Dofflemyer would have had a majority for county chairman, and Norris for precinct chairman.

We are unable to distinguish in principle this case from Leslie v. Griffin (Tex. Com. App.) 25 S.W.(2d) 820, 821, in which it was held that the courts are without power prior to the completion of an election “to inquire as to the correctness or regularity of returns which have been made by the proper functionaries.” In referring to that case, this court in Lueders v. Ehlinger, 31 S.W.(2d) 1099, 1100, said:

“There the election officials had thrown out one of the boxes because the returns delivered to the county judge were not sealed; and the Commission of Appeals held that the district court was without power by mandamus to compel inclusion of the box in’ the returns on the ground that the question there presented was a political one, over which neither the Constitution nor the statutes had given the courts control.
“We do not construe the opinion as denying to the courts power to compel a purely ministerial act on the part of election officials, where refusal so to perform-invades private right. R. S. art. 3142 clearly gives that right with reference to primary elections, in so far as it can be given by statute. The Leslie Case is authority, however, for the proposition that the action sought to be compelled is not a purely ministerial duty. In fact, the case here presented is much stronger than that in the Leslie suit. There, the officers had refused to count one of the boxes, on the sole ground that the envelope containing the returns wás not sealed. This was a clear cut question of law. The holding that the action of the election officials could not be controlled by mandamus necessarily included a holding •that the throwing out vel non involved some degree of discretion, and not a purely ministerial duty.”

In the instant case the county chairman, Hill, received no returns from the precinct election officers except those contained inside the ballot box; and in accordance with what he conceived his duty he delivered the box to the county clerk in the same condition in which he received it. The members of the executive committee, following what they conceived to be their duty, declined to canvass the returns which had not been delivered to them, and which they understood they had no right to demand. Their action in this regard was no more the violation of a purely ministerial duty than that involved in Leslie v. Griffin. Moreover, when the ballot box ’was opened, it was discovered that the returns were irregular in that they were not signed by the election officers, and it further appeared that those officers had not been sworn as the law required. Whether these irregularities vitiated the election in the precinct is immaterial here. Under the holding in Leslie v. Griffin, the court was clearly without power to compel the election officers to canvass these returns and certify the result in the face of these irregularities.

The trial court’s judgment is reversed, and the cause is dismissed.

Reversed and cause dismissed.


author: BAUGH, J.

text:
    NEBLETT & NORMAN v. GOUKAS et UX.
    No. 7607.

    Court of Civil Appeals of Texas. Austin.
    June 3, 1931.

      Neblett & Norman, of Houston, for appellants.
    John C. Townes, Jr., and L. W. Cutrer, both of Houston, for appellees.
   BAUGH, J.

Suit by appellants against appellees for attorneys’ fees claimed by them for their services in a suit for divorce, alimony pen-dente lite, partition of community property, etc., in favor of Marie Goukas against Antone Goukas. After said suit was filed, a reconciliation was effected between the parties, and the wife, as plaintiff, declined to prosecute said suit further and to pay appellants any fee. The defense to this suit was that Marie Goukas, at the time she employed appellants, did not have sufficient grounds for a divorce;' and that such services of appellants were wholly unnecessary. The trial was to the court without a jury and judgment rendered for appellees.

The principle on which a husband may be held liable for attorneys’ fees for services rendered his wife in a divorce suit is that such services are for necessaries furnished the wife. Before they can be so deemed, and the husband or the community chargeable therefor, it is now well settled in this state that such services must be rendered “in the prosecution or defense of a bona fide suit for divorce, based upon good grounds, instituted and conducted in good faith and upon probable cause.” Howard v. La Coste (Tex. Civ. App.) 270 S. W. 181, 183, and numerous cases there cited; Kelly v. Gross (Tex. Civ. App.) 4 S.W.(2d) 296; Ashworth v. Edwards (Tex. Civ. App.) 5 S. W.(2d) 776. And where reconciliation, favored by the law, has been effected, and the wife declines to appear and prosecute such suit, the burden rests upon the attorneys who claim such fees to show not only that they acted in good faith but that their client also acted in good faith and upon probable cause. Dodd v. Hein, 26 Tex. Civ. App. 164, 62 S. W. 811; Yeager v. Bradley (Tex. Civ. App.) 226 S. W. 1079.

The petition in the divorce suit set out ample grounds for a divorce in favor of the wife and was sworn to by her. It was also offered in evidence in this suit, and appellants testified that Marie Goukas had given them as facts the allegations therein made, and had stated to them that they were true. This evidence was properly confined, however, by the trial court to the question of the good faith of the attorneys. Ashworth v. Edwards, supra. The verified petition in another suit would be in the nature of an ex parte affidavit and not competent evidence of the facts therein- stated ; especially is this true where competent evidence otherwise as to such matters was available. The same is true as to the statements made by Marie Goukas to appellants. On the trial hereof the husband testified as a witness, denied and contradicted all of the acts of cruelty alleged in the divorce petition, and there was on this trial no competent evidence, excluding said petition and her statements to her attorneys, that the wife had probable cause for divorce. If she did not have such grounds, she did not, of course, act in good faith, and the services of her attorneys were not for neces-, saries. The trial court found, under the proof offered, that she did not have probable grounds, and we are bound by that finding.

Marie Goukas was not summoned as a witness. More than a year passed after the filing of this suit before it was tried. No effort appears to have been made by appellants to secure her testimony by deposition or otherwise, it was within the power of appellants to do so. Articles 3711, 3752, 3769, R. S. 1925. Not having done so and not having produced other competent evidence to show good faith and probable grounds on the part of Marie Goukas, they did not meet the burden resting upon them.

Nor do we sustain appellants’ contention that the defendant Antone Goukas having failed to produce Marie Goukas, his codefendant, as a witness, such evidence as she could have given should operate presumptively against him. As stated by Judge Pleasants in Texas Co. v. Charles Clarke & Co. (Tex. Civ. App.) 182 S. W. 351, 353: “When a plaintiff has produced evidence sufficient to raise an issue as to the truth of his claim, and it appears from the nature of the case and the circumstances disclosed by the evidence that defendant is in possession of evidence which will show whether or not the inferences which can legitimately be drawn from plaintiff’s .evidence are true, and does not offer it, it is a fair and legitimate inference that the evidence so withheld by the defendant would, if produced, confirm the inferences arising from plaintiff’s evidence.” But clearly such inference or presumption cannot be relied upon alone to establish an essential element of appellants’ proof. And even if it could, it was by no means conclusive; and such inferences or presumptions as to her good faith and probable grounds of divorce as might have been indulged under appellants’ con-, tention, were directly contradicted and repelled ¡by the positive testimony of Antone Goukas. Presumption as to the existence of facts can always be dispelled by positive testimony, unless such presumption be as a matter of law conclusive. Buro v. Home Benefit Ass’n (Tex. Civ. App.) 28 S.W.(2d) 902, 905, and cases there cited. On the question of probable grounds, essential to render such services necessaries for which the husband could be held liable, the court found against appellants and there was sufficient evidence to sustain that finding.

The judgment of the trial court is therefore affirmed.

Affirmed.


text:
    NATIONAL LIFE & ACCIDENT CO. v. MUCKELROY et al.
    No. 7611.
    Court of Civil Appeals of Texas. Austin.
    June 3, 1931.
    King, Battaile & Dutton, of Houston, for plaintiff in error.
    King, Wood & Morrow and H. E. Cox, all of Houston, for defendants in error.
   BAUGH, J.

Suit was filed by plaintiff in error, after the death of the insured, to cancel a $2000 insurance policy issued by it on the life of R. T.- Muckelroy on February 25, 1927, on the grounds that misstatements made by him in his application constituted a fraud upon it; and that he was not in good health at the time said policy was delivered to him, as re-quireji by its terms to make the policy binding on the company. The defendants in error, beneficiaries under said policy, filed a cross-action for the amount of said policy, penalties, and attorney’s fees. The case was tried to a jury upon special issues, and judgment on their findings rendered in favor of the beneficiaries.

Only two assignments are here presented: (1) That the insurance company was entitled, under the evidence, to an instructed verdict in its favor; and (2) that the jury finding that the insured was in good health at the time the policy was delivered is contrary to the overwhelming preponderance of the evidence.

The issue of fraud and misstatement of facts in deceased’s application for insurance dated January 30, 1927, is predicated upon the following: Applicant stated in response to inquiry: “Have you ever consulted a physician for any ailment or disease not included in above” (specific inquiries in application) that he had an attack of malaria in 1900 of 30 days duration, but had been cured. The insurance company showed that the deceased had been examined by Dr. Buie at Marlin in August, 1921, who stated that he had no independent recollection of Muckelroy, but testified only from his records, which showed that an X-ray then disclosed apparent gall stones, and that his liver was enlarged and hard below the coastal border; that he made no diagnosis of Muckelroy’s case at the time, but that from his record he would diagnose said case as obstructive jaundice. The treatment recommended was diet, mineral baths, and some form of electric treatment. There was also evidence to show that prior to that time Muckelroy had taken too large a dose of calomel, was jaundiced, and in a run down condition. That his wife had undergone an operation and was in poor health, and 'that both of them had gone to Marlin to take the mineral baths there; that both were examined by physicians at the time as preliminary and incidental to taking the baths. The evidence is clear that after taking the baths, which appear to have been the only treatment received at Marlin in 1921, Muckelroy was restored to normal health and remained so up to within a short time prior to his death. In addition, the medical director of the insurance company at its home office, after receiving said application wrote to Dr. Jones, the local medical examiner of said applicant, inquiring further about any history of a gall bladder disease at any time, and was advised by Dr. Jones prior to the issuance of said policy that about seven years prior thereto Muckelroy had become jaundiced, had several boils and considerable bile in his urine, and had been treated during said, attack by Dr. Buie' of Marlin, Tex., but had entirely recovered.

Doubtless the applicant did not consider his trip to Marlin along with his wife to take the mineral baths there as treatment by a physician, and omitted to so state in his application. In any event, the duly authorized agent of said company to pass upon such matters, its chief medical director, was informed in writing prior to the issuance of said policy of the facts concerning the matter, and issued the policy with these facts in their possession. The insurance company is therefore in no position to now complain, nor can it be said that it was misled or induced by fraud to issue said policy.

The policy was delivered to the insured on February 25, 1927. The first attack of illness thereafter shown was on July 2, 1927. On August 24th, the deceased underwent an operation at Houston which disclosed a cancerous condition of the liver and gall bladder causing his death on October 15, 1927. Dr. Gordon, who as an intern, made a record of Muek-elroy’s personal history when he entered the hospital at Houston, testified from that record that Muckelroy had told him that he had had an acute attack of pain in the gall bladder region six years before. That since that attack he had had almost constant dull pain in that region, and a jaundiced condition at intervals. That the attack from which he was then suffering came on about a month before resulting in swelling of his abdomen, feet, and legs, and a jaundiced condition.

Based upon a hypothetical question embodying as facts the conditions described by Dr. Buie as existent in 1921, assuming a dull pain in that region almost constantly since 1921, and that at intervals between he was jaundiced and had his flow of bile stopped; that he had cancer of the liver and gall bladder in August, 1927, Dr. Gordon testified that in his opinion the deceased was not in good health on February 25, 1927, but was then suffering from a diseased condition which predisposed cancer. The assistant chief medical examiner of the insurance company at Nashville, Tenn., gave his opinion to the same effect, based upon hypothetical questions. Dr. Jones testified that he had examined Mr. Muckelroy at Hempstead upon his application and then found nothing wrong with him and thought he was in good health; but that after his death, and in the light of his subsequent attack and operation, he had changed his opinion, and did not now consider that he was in good health when the policy was delivered.

On the other hand, there was the testimony of Dr. Jones that when he examined the deceased in February, 1927, he/found nothing wrong with him. Muckelroy’s wife testified that she had been with him every day for eight years before his death. That she had never heard him complain of any pains in his abdomen until in July, 1927; that he had not prior to that time lost a day’s work in five or six years; and that he was in good health in February. His employer during the last five years prior to his death testified that he was associated with him daily in his store; that he had never missed a day at work prior to July; that he had never heard him complain of any pain; and that he appeared to be in good health in January and February, 1927. To the same effect was the testimony of his son who saw him every day at home. S. E. McDaniel who had seen him every day since 1924, testified that he had prior to July, .1927, never heard deceased complain of any pains in his abdomen, and that he appeared to be in good health. The witness Blumberg, who worked in the same store with deceased about five years and came in contact with him repeatedly every day, testified that he had never heard deceased complain, prior to July, 1927, when he became ill, of any pains in his abdomen or of ill health, and that he had never seen nor heard of anything in deceased that would indicate ill health.

The testimony of these lay witnesses, the examination of Dr. Jones which found nothing wrong with the insured at the time, combined with the uncontradicted testimony that his illness began suddenly in July, 1927, and brought him rather hurriedly to his death in October following, was sufficient evidence we think to support the jury finding that deceased was in good health when his policy was delivered to him. The evidence was also sufficient to show that the dreadful malady, whose fatal ravages medical science seems yet unable to stem, did not take its hold upon him until shortly before it compelled him to cease his work in July.

While the opinions of experts may be strongly persuasive, they are not conclusive. It is but common knowledge that in the field of medicine as in other sciences, complete revolutions have taken plaee in a generation in the diagnoses, causes, effects, and duration of varying humán diseases. New discoveries are constantly being made, and old theories, opinions, and methods of treatment of diseases cast aside. In the instant case, the jury had before them the opinions of experts, all of whom based their opinions, in part at least, upon related facts as to Muekelroy’s condition, and some of which were rendered uncertain by the testimony. They also had before them the testimony of Dr. Jones that in February he found nothing wrong with Muckel-roy’s health at that time after an examination of him; and the testimony of the witnesses who saw him daily that they neither saw anything in deceased’s conduct, nor heard anything from him, to indicate that there was anything wrong with his health. It was the prerogative of the jury to pass upon the issue raised, and the foregoing we think constituted sufficient evidence to sustain their findings.

Nothing would be added to our jurisprudence by a discussion or review of the decisions upon the questions here raised. As to the sufficiency of the above evidence on such issues in similar cases, we cite without discussion the following: Vann v. Nat. Life & Accident Ins. Co. (Tex. Com. App.) 24 S.W.(2d) 347; Nat. Life & Accident Ins. Co. v. Doman (Tex. Civ. App.) 31 S.W.(2d) 865; Am. Nat. Ins. Co. v. George (Tex. Civ. App.) 22 S.W.(2d) 704; Am. Nat. Ins. Co. v. Bailey (Tex. Civ. App.) 3 S.W.(2d) 539.

And on the proposition that opinion testimony of physicians is but advisory in nature and may be disregarded by the jury if they see fit, we cite the following authorities: Kennedy v. Upshaw, 66 Tex. 454, 1 S. W. 308; Minero v. Ross, 106 Tex. 535, 172 S. W. 711; Am. Nat. Ins. Co. v. McKellar (Tex. Civ. App.) 295 S. W. 628; 22 C. J. 728, and numerous cases there cited.

We overrule both assignments of plaintiff in error, and affirm the judgment of the trial' court.

Affirmed.


author: LESLIE, J.

text:
    BLANTON v. NELMS et al.
    No. 882.
    Court of Civil Appeals of Texas. Eastland.
    June 19, 1931.

      Y. W. Holmes, of Comanche, for appellant.
    Callaway & Reese, of Comanche, for appel-lees.
   LESLIE, J.

Originally this suit was filed in the justice court, precinct No. 1, pomanche county, Tex. The plaintiff R. P. Moore sued the defendants W. E. Nelms, Mat Nelms, and J. E. Blanton, alleging that the defendants had converted two of plaintiff’s mules of the value of §150. The defendants Nelms answered by general denial, and the defendant Blanton, answered separately by general demurrer, general denial, and specially alleging that he came into possession of the mules by purchase for a valuable consideration, without any notice, actual or constructive, that the plaintiff Moore held a chattel mortgage against the property. He sufficiently alleged that he was an innocent purchaser of the mules as against any lawful claims of the plaintiff.

In the county court the trial was before the judge without a jury, and resulted in a judgment in favor of the plaintiff against the defendants W. E. Nelms, Mat Nelms, and J. E. Blanton jointly and severally, for the sum of $100 with interest thereon at the rate of 10 per cent, per annum, etc. Defendants excepted to this judgment and gave notice of appeal, but Blanton alone has perfected that appeal by a proper supersedeas bond.

By assignments and propositions the appellant Blanton challenges both the existence of evidence and in the alternative the sufficiency of the evidence to establish the alleged conversion by him as charged in the plaintiff’js petition. The undisputed testimony is that Moore sold the mules to Nelms and took a mortgage thereon to secure the unpaid balance of the purchase price. Nelms thereafter sold the mules to Blanton, and the undisputed testimony shows that Blanton had neither actual nor constructive notice of the existence of the mortgage, and Moore himself testified that, at the time he found out the mules had been traded to Blanton, he had not filed for registration- the mortgage executed to him by Nelms. The evidence as a whole disproves any conversion of the property on the part of Blanton, and the judgment against him has no basis in the testimony. The case has been fully developed, and the two Nelms not having appealed, the judgment will remain undisturbed as to them, but as to Blan-ton the judgment of the trial court is reversed and here rendered in his favor. It is so ordered.


author: CALHOUN, J.

text:
    T. W. CARNEAL v. STATE.
    No. 14575.
    Court of Criminal Appeals of Texas.
    June 26, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, theft of turkey; punishment, one year in the penitentiary. '

Affidavit in proper form has. been filed by appellant requesting that the appeal in this case be withdrawn.

The motion is granted, and the appeal dismissed.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    Phil CONLEY v. STATE.
    No. 14577.
    Court of Criminal Appeals of Texas.
    June 26, 1931.
    James Patteson, of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ,
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 5 years. '

Upon written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

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


text:
    Cecil EPPS, alias J. C. Clare, v. STATE (two cases).
    Nos. 14567, 14569.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for three years.

Upon written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

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


text:
    Cecil EPPS, alias J. C. Clare, v. STATE.
    No. 14568.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, receiving and concealing stolen property; punishment, four years in the penitentiary.

Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal.

The motion is granted'and the appeal dismissed.

PER CURIAM.

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


text:
    George E. RHODES v. STATE.
    No. 14580.
    Court of Criminal Appeals of Texas.
    June 26, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, theft; punishment, ten years in the penitentiary.

Affidavit in proper form has been filed by appellant ashing this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PER CURIAM.

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


author: GRAVES, J.

text:
    L. A. BARNES v. A. H. BINFORD et al.
    No. 9599.
    Court of Civil Appeals of Texas. Galveston.
    July 9, 1931.
    M. E. Gates, of Huntsville, for appellant.
   GRAVES, J.

In this cause appellant sought an injunction restraining the appellees from selling a certain 10 acres of land at Bedias in Grimes county, which he claimed as the homestead of himself and family. The trial court after hearing the evidence of both sides peremptorily instructed the jury to find for the appellees upon a holding that “the uncontradicted testimony shows that the premises situated in Grimes County, Texas, and owned by the plaintiff, L. A. Barnes, had been permanently abandoned by the plaintiff as a homestead, and another homestead had been acquired and was being used and enjoyed by the plaintiff and his family, at the time of the levy of the writ of execution upon the lands described in plaintiff’s petition.”

After a careful examination of the statement of facts, this court concludes that the instructed verdict and consequent judgment were erroneous, in that the evidence, clearly raises the issue of fact as to whether or not appellant’s abandonment of the Grimes county home was merely temporary with the intention at the time of thereafter returning to it and continuing to make it the homestead of his family. The judgment will therefore be reversed, and the cause remanded for a trial upon that issue.

Reversed and remanded.


author: WALKER, J. '

text:
    TEXAS & NEW ORLEANS RAILROAD CO. v. J. A. MORGAN.
    No. 2095.
    Court of Civil Appeals of Texas. Beaumont.
    June 18, 1931.
    P. J. & C. T. Duff, of Beaumont, Baker, Botts, Andrews & Wharton, of Houston, and D. C. Bland, of Orange, for appellant.
    O. R. Sholars and R. Lee Davis, both of Orange, for appellee.
   WALKER, J. '

This was an action by appellee against appellant for damages for killing his horse. On trial to a jury, his damages were assessed at $125, and judgment entered in his favor for that amount. The trial court submitted to the jury the issue of negligence, but over defendant’s objections refused to submit the issue of proximate cause. The omission was called to the court’s attention, not only by -exceptions, but by a requested charge. While the requested charge was defective, it was sufficient to call the court’s attention to the defect in the charge, as submitted to the jury, and it put upon him the burden of preparing and submitting a correct charge. Other errors are assigned, which probably will be obviated upon another trial.

Por the error discussed, the judgment of the lower court is reversed, and the cause remanded for a new trial.


author: HUGHES, Justice.

text:
    J. J. LUNG, dba Draftmeister, Appellant, v. Terry VARGA et ux., Appellees.
    No. 11360.
    Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1966.
    Thomas T. Smith, Austin, for appellant.
    S. B. French and T. O. Dillard, Austin, for appellees.
   HUGHES, Justice.

Upon examination of the transcript of the record in this case we have concluded that an appeal has not been perfected and that we are without jurisdiction to decide the case on its merits.

The transcript shows:

This suit was by J. J. Lung, dba Draft-meister, against Terry Varga and wife, Georgia Varga, upon a promissory note executed by them dated April 21, 1964, in the principal sum of $636.90, the amount allegedly due thereon, including attorney’s fees, being $486.10.

The Vargas answered by alleging that they had paid .$75.00 and the note and that appellant was indebted to them on an open account in the sum of $624.80, a sworn account in this sum being attached to the answer. They prayed for cancellation of the note and mortgage securing it and for judgment for $62.90, being the favorable difference between appellant’s claim and their claim, and for $250.00 attorney’s fees.

In a non-jury trial judgment was rendered finding that appellees were indebted to appellant in the sum of $732.44 and that appellant was indebted to appellees in the sum of $833.06 and that appellees were entitled to recover $100.62, the difference, of and from appellant with 6% interest from March 12, 1965.

This judgment recites that the case came on for trial etc. on March 12, 1965. It does not show the date on which the judgment was signed by the Trial Judge as required by Rule 306a, Texas Rules of Civil Procedure. The judgment does show that it was filed with the clerk of the Court on April 5, 1965.

On April 16, 1965, appellant filed a motion for a new trial.

On April 30,1965, appellant filed a motion to correct the entry of the judgment above described in which he states that such judgment was not submitted to him for approval before it was signed by the Judge, “that he has filed a motion for new trial and intends to appeal from such judgment” and that “all incorrect recitals should be corrected as to remove any ground of complaint.”

Although the record does not expressly show that it was in pursuance to this motion that another judgment was signed by the Trial Judge which was filed with the clerk of the Court on June 3, 1965. This judgment recites, as did the first judgment, that the cause came on for trial on March 12, 1965. There is no other date in the judgment and the date of signing is not shown. This judgment is identical with the first judgment except that it contains additional recitals concerning certain proceedings and motions relied upon by appellant to show grounds for reversal. No recitals of the first judgment were corrected, nor was the first judgment referred to or set aside.

On June 3, 1965, the Trial Judge signed an order overruling appellant’s motion for a new trial.

Notices of appeal were contained in or shown on both judgments and the order overruling the motion for new trial.

A supersedeas bond was approved and filed by the clerk on July 2, 1965.

We find nothing in the rules which give any legal effect to the date on which a judgment is filed with the Court clerk. Of course the date of such filing is evidence that it was rendered and signed prior thereto, but it does not, of itself, have any legal significance. We are bound in this respect by Rule 306a, T.R.C.P.

Under this rule the two judgments were rendered on the same day, March 12, 1965. We will, however, for the purpose of this decision assume that such judgments were signed on the day they were filed with the clerk. This is the most favorable position which appellant can take or be entitled to under this record.

The first judgment was signed on April 5. The motion for new trial was filed April 16, which was a Friday. The last day for filing was Thursday April 15. Sec. 1, Rule 329b, T.R.C.P. Under Sec. 5 of this rule such motion could have been considered by the Court within 30 days from the date of the judgment. This section of the rule also expressly provides, “The filing of a motion for a new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to' extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment.”

Since the motion for new trial was not timely filed and since it was not acted on until June 3, more than thirty days after the rendition of the judgment, such motion and such order have no bearing on the timeliness of this appeal.

This brings us to a consideration of the second judgment.

Rule 301, T.R.C.P. provides, in part, “Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.”

Sec. 5 of Rule 329b, provides for the finality of judgments after the expiration of thirty days from date of rendition or order overruling motion for new trial and further provides that after the expiration of such time, “the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.” It is not contended that this provision is invoked.

Since the second judgment was entered long after the expiration of thirty days from the rendition and signing of the first judgment, it is void and cannot be considered in determining the timeliness of this appeal.

Since the appeal bond was not filed within thirty days from the date of the first judgment, the appeal has not been perfected. Rule 356, T.R.C.P.

The transcript and statement of facts were filed with our clerk on July 30, 1965. This was not timely. Rule 386, T.R.C.P.

The only conceivable theory upon which appellant could rely to overcome the obstacles above noted is that he proceeded under Rules 316, 317, 306b, T.R.C.P. relating to judgments nunc pro tunc. We do not believe this theory tenable because the court made no mistakes in its original judgment and none were corrected in the second judgment. In Ellison v. Panhandle & Santa Fe Railway Co., Tex.Civ.App., 306 S.W.2d 909, Amarillo, the Court, in holding a second judgment void, made the following statement which is applicable here:

“Nowhere does the latter form of judgment signed by the trial court refer to appellants’ motion for judgment nunc pro tunc; nowhere does it use the phrase ‘nunc pro tunc’ or pretend to be entered in lieu of the original judgment; nowhere does the same show any correction of any alleged error in the original judgment entered and nowhere does it set aside or vacate the original judgment entered or attempt to do so.
It is our opinion that a purported nunc pro tunc entry of judgment is erroneous and of no value where it fails to disclose the ground on which the court acts or what the entry intended to correct and that it has failed to accomplish its purpose unless it shows some reason for its entry and unless it shows that it had been entered ‘now for then’ or in lieu of a former judgment, which former judgment must in some manner be vacated and set aside, otherwise there will be two judgments entered in the same case.”

This appeal is dismissed for want of jurisdiction.

Dismissed.

      . Travis County Court at Law No. 2 has continuous terms. Art. 1970-324a, Vernon’s Ann.Tex.Civ.St. See Sec. 6, Rule 329b, T.R.C.P.