author: COBBS, J.

text:
    PENA v. LE COMTE et al.
    No. 8610.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1931.
    Rehearing Denied March 25, 1931.

      Tom J. Newton, L. J. Gittinger, T. J. Newton, Jr., and Van Henry Archer, all of San Antonio, for appellant.
    Ingrum & Smith and Ben S. Morris, all of San Antonio, for appellees.
   COBBS, J.

Appellant instituted this suit against ap-pellees to restrain them from building a fence across Octavia place at or near the point where Octavia place enters the premises of appellant, or from in any manner closing said Octavia place to the use of appellant in going to and from his' said premises over and along said Octavia place.

The court refused to grant the writ, and the appellant appeals.

Appellees filed an answer alleging they were damaged in the sum of §25,000, and praying that no writ be granted for appellant, but that they be granted a writ of temporary injunction restraining appellant from in any way interfering with the right of appellees to erect a fence upon a ten-foot strip of land at the east end of Octavia place, and place the same in the condition in which it was before the wrongs perpetrated by the appellant -were done, and that they have their damages for $25,000. The court granted the injunction, but it was suspended until the appeal taken is decided.

Appellant showed no right or title in the property whatever. It was ten feet of ground that lay outside of Octavia place in a reservation, with no right whatever given to anybody to cross over the strip of ground permanently or to go over it at will.

There were other houses and settlements along Octavia street, and the occupants thereof were greatly disturbed by the passage of people and the passage of ears, which, created dust and noise, and amounted to a nuisance. To prevent this disturbance, it was intended to withdraw appellees’ permission and close the entrance upon this property, which was entered over the reservation.

As stated, appellant 'had no right or title to any of the ten-foot strip of land, and what use he had made of it was through the permission of appellees, who now sought to withdraw it.

On the question of granting a temporary writ to restore the status of the thing in controversy pending the final disposition of the ease much has been written. Welsh et al. v. Carter (Tex. Civ. App.) 30 S.W.(2d) 354; Merrell et al. v. Moore et ux. (Tex. Civ. App.) 300 S. W. 953. It was said injunctions merely preserve the status until the final trial and the action of the court thereon is.a matter of discretion, and the “merits of the controversy between the parties are not proper to be considered at the time.” See, also, James v. E. Weinstein & Sons (Tex. Com. App.) 12 S.W.(2d) 959. No legal rights are shown to travel over this land. Santa Fe Town-Site Co. et al. v. Norvell (Tex. Civ. App.) 187 S. W. 978.

We do not think the court erred in refusing, under the circumstances, the writ, and leaving the parties to their legal and common-law remedies.

The judgment is affirmed.


source: Caselaw Access Project

author: HICKMAN, C. J.

license: Public Domain

text:
    WESTEX THEATERS, Inc., v. WILLIAMS.
    No. 781.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 2, 1931.
    Rehearing Denied Jan. 30, 1931.

      ' M. P. Billingsley, of Munday, and Tom L. Beauchamp, of Paris, for appellant.
    D. J. Brookreson, of Benjamin, and J. S. Kendall, of Munday, for appellee.
   HICKMAN, C. J.

The action is for damages for the breach of a contract in writing, evidenced by an offer contained in a telegram of June 14, 1929, and an acceptance thereof by a telegram of date June 21, 1929. The telegrams were as follows:

“Munday, Texas, June 14, 1929.
“C. J. Bain, San Antonio, Texas.
’“Will give twenty thousand dollars for Haskell and Seymour theaters. Ten thousand «ash balance in two. equal notes seven per cent due six and eighteen months on or before.
“[Signed] P. V. Williams.”

To this telegram the following reply- was sent:

“Received at Munday, Texas, June 21,1929. “P. y. Williams, Munday, Texas.
“Tour proposition wired me June fourteenth on Haskell and Seymour theaters accepted. Wire me San Antonio date you can meet me Dallas to make up contract.
“[Signed] C. J. Bain.”

As a defense to appellant’s cause of action, appellee pleaded and testified that, on June 20, 1929, in a long-distance telephone conversation between him and C. J. Bain, who represented appellant in the transaction, the offer was withdrawn; ‘ that this withdrawal was prior to the sending of the telegram of acceptance. Bain denied that appellee had withdrawn the offer before the telegram of acceptance was sent, and the issue of fact thus made by the evidence was submitted to1 the jury, as follows: “Was the plaintiff’s agent, Bain, notified before he sent the telegram of acceptance on June 21st, 1929, by the defendant Williams that his associates had scattered and the offer was no longer open?” To this issue the jury answered: “Yes.”

Upon this verdict judgment was rendered that appellant take nothing by its suit, and this appeal followed.

The brief contains six assignments of error. The first two assignments complain of the action of the trial court in sustaining special exceptions to appellant’s petition. The exceptions sustained were to allegations as to certain elements of damages claimed by appellant, in addition to the difference between the alleged contract price and the price at which it later sold the theaters. Since the jury found against the existence of a contract, the action of the trial court in striking certain elements of the claimed damages, even if erroneous, was clearly harmless.' The re-suit of the suit would have been the same had these exceptions been overruled.

The third assignment complains of the failure and refusal of the trial court to instruct the jury to return a verdict for plaintiff. The transcript contains a request for an instructed verdict, which shows to have been filed with the clerk. But there is no showing that the request was ever presented to, or acted upon, by the trial judge. In order to preserve this action of the trial court for review, appellant should either have presented its request to the trial judge and have him mark thereon “refused,” and authenticate same with his signature, as provided in article 2188, R. S. 1925, or else have brought up a formal bill of exceptions. In the absence of a showing that the instruction was presented to, and refused by, the trial court, the assignment presents no question which we are authorized to review. Farmers’ & Merchants’ State Bank v. Guffey (Tex. Civ. App.) 255 S. W. 462; Medford v. Kimmey (Tex. Civ. App.) 298 S. W. 140.

The fourth assignment complains of the action of the.trial court in overruling the motion of appellant for judgment upon the verdict of the jury. The only issue submitted to the jury was the one above copied, which, as noted, was answered in appellee’s favor. The motion for a judgment after verdict called upon the trial court to render judgment contrary to the verdict. The law is well settled in this state that, “if the trial court submits an issue to the jury, which under the pleadings is a material one to the decision of the case, and the jury is permitted to answer that issue, which answer is received by the court, then, under the statute, the trial court is without discretion except to set aside the finding and grant a new trial, or to render judgment upon and in conformity to the findings * ⅝ * ” Massie v. Hutcheson (Tex. Com. App.) 270 S. W. 544. See, also, Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S. W. 607.

The trial court was without power to grant appellant’s motion, and no error can be predicated upon its failure to do so.

Tlie fifth assignment is as follows: “The court erred in failing to grant plaintiff’s.motion for a new trial," because the verdict was contrary to the undisputed evidence in the case.”

As said by Chief Justice Pleasants in Gainey v. I. & G. N. Ry. Co. (Tex. Civ. App.) 280 S. W. 852, 853, “It goes without saying that this assignment is too general to be considered.” To the same effect is American National Life Ins. Co. v. Rowell (Tex. Civ. App.) 175 S. W. 170.

The sixth assignment complains of the refusal of the trial court to grant appellant a new trial on newly discovered evidence. Tie facts disclose tliat tlie appellant learned during the trial of the cause of the fact that the witnesses whose- testimony it is claimed was discovered after the trial knew something of the transaction. The facts further disclose that the amended petition setting up the defense upon which the evidence was material was filed shortly before the case went to trial, but appellant asked no continuance or postponement for the purpose of ascertaining what the witnesses’ testimony would be. Having elected to proceed with the trial without a request for postponement or continuance, appellant’s right to claim a new trial on account of newly discovered evidence was' foreclosed. De Hoyes v. Ry. Co., 52 Tex. Civ. App. 543,115 S. W. 75; Scott v. Jackson (Tex. Civ. App.) 147 S. W. 336; Bledsoe v. Burleson (Tex. Civ. App.) 289 S. W. 143; Bain Peanut Co. v. Pinson & Guyger (Tex. Civ. App.) 19 S.W.(2d) 203; Kelsey v. Myers (Tex. Civ. App.) 29 S.W.(2d) 855, and authorities there cited.

No reversible error has been presented by appellant’s brief, and no fundamental error appears in the record. It is therefore our order that the judgment of the trial court be affirmed.


author: WALKER, J.

text:
    SOUTHERN SURETY CO. v. WEAVER BROS. et al.
    No. 1961.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 21, 1931.
    Rehearing Denied Feb. 4, 1931.
    J. T. Suggs, Jr., of Dallas, and Anderson & Lewis, of Center, for appellant.
    Chas. L. Brachfield and Jno. Arnold, both of Henderson, and Davis & Davis and Sanders & McLeroy, all of Center, for appellees.
   WALKER, J.

This was an action by Weaver Bros, against the Methodist Episcopal Church, South, of Center, Tex., N. O. Thomas & Sons, and appellant, Southern Surety Company, to recover the sum of $4,091.57, the contract price of certain material furnished N. O. Thomas & Sons, contractors, used by them in constructing a house of worship for the Methodist Church. The surety company was sued on the theory that being the surety on the bond executed by Thomas & Sons to secure the faithful performance of the building contract, it was liable for the unpaid material - bills. Weaver Bros, also claimed against the church a lien for the material furnished. The trial was to a jury, and on its verdict judgment was against appellant Southern Surety Company and N. O. Thomas & Sons for the sum of $4,091.57, with judgment in favor of the surety company over against Thomas & Sons. Judgment was in favor of the church that Weaver Bros, recover nothing against it and releasing its property from the claimed lien. The surety company and Weaver Bros, perfected appeals from this judgment.

The bond sued upon, executed by N. O. Thomas & Sons as principal and appellant as surety, was conditioned as follows:

“That, whereas, the said N. O. Thomas, M. H. Thomas and R. G. Thomas, trading under the firm name of N. O. Thomas & Sons, have entered into a contract with the said Methodist Episcopal Church South, of Center, Texas, for the erection of a new Church building on the East one-half of Block No. 42, in the City of Center, and to erect the same according to the plans and specifications as prepared by Wm. C. Meador of Fort Worth, Texas, as modified by Exhibit ‘B’ attached to said specifications, and to erect said building according to said plans and specifications, as modified by said Exhibit ‘B’, for the sum of Thirty Thousand & no/100 ($30,000.00) Dollars, which said contract is dated April 19, A. D. 1927.
“The said plans and specifications as prepared by the said Wm. C. Meador, together .with the said Exhibit ‘B’ attached thereto are here now referred to, made a part hereof, as if same were copied in whole herein.
“Now, therefore, if the said N. O. Thomas, M. H. Thomas and R. G. Thomas,-trading under the firm name of N. O. Thomas & Sons, shall complete said contract according to said plans and specifications for the same, and as modified by said Exhibit ‘B,’ and shall indemnify said Methodist Church South,' of Center, Texas, against all loss or expense resulting from the failure of said N. O. Thomas, M. H. Thomas, and R. G. Thomas, trading under the firm name of N. O. Thomas & Sons, to pay all labor and material bills, in connection with said contract, then this obligation shall become null and void; otherwise to remain in full force and effect. * * * ”

The contract, as pleaded by plaintiff Weaver Bi’os., in stipulating for the furnishing of a bond by the contractor, provides:

“Contractor agrees, binds and obligates himself to make and enter into a good and solvent bond in the sum of Twenty Thousand & no/100 ($20,000.00) Dollars, payable to the owner securing and guaranteeing the faithful performance of this contract.”

The general plans and specifications, introduced in evidence, in connection with the contractor’s bond, provides:

“The owner shall have the right, prior to the signing of the contract, to require the contractor to furnish bond covering the faithful performance of the contract and the payment of all obligations arising thereunder, in such form as the owner may prescribe and with such sureties as he may approve.”

The contractor Thomas & Sons was acting, in the contract in question, as independent contractors. The said contract, as alleged in plaintiff's petition, provided:

“ * * * Contractor * * * does agree with the said owner that they will- * * * build * * * said church building * * * furnishing all of the material of whatever kind, necessary to be used ánd paying all expenses incident to the said labor and the furnishing of material.”

By reference the contract and specifications were made a part of the bond. Construing the contract, appellant in its brief says:

“The contract bound Thomas & Sons as contractor, to pay for all labor and material, to be sure:”

As part of the consideration paid by N. O. Thomas & Sons to appellant for assuming the obligation ■ of surety on their bond, they made to it the following assignment:

“That .in the event of the failure of the undersigned to comply with, or make due performance of, any covenant hereof, or of the contract which the. Company is hereby requested to guarantee, or any other contracts heretofore guaranteed, the Company may at any time thereafter take such steps as it may deem necessary or proper to obtain due performance of such contract or contracts (and for such purpose may sublet or assign the same), or its release from all liability under any and every such bond and contract, and to secure and further indemnify itself against loss; and all damage and expenses which the Company may sustain or incur, or to be put to in obtaining such release, or in further securing itself against loss, shall be borne and paid by the undersigned. And for the better protection of said Company, and as collateral security hereto and for all claims of said surety against the undersigned, we, the undersigned, do by these presents, as of the date hereof, hereby assign, transfer and convey to the said Company, all the right, title and interest of the undersigned in and to all the tools, plant, equipment and materials of every nature and decription that we may now or hereafter have upon said work, or in, on or about the site thereof, including as well materials purchased for or chargeable to said contracts which may be in process of construction, in storage elsewhere, or in transportation to said site. And also, we, the undersigned, do hereby convey and assign to the said Company any and all payments, funds, moneys or property due or to become due to the undersigned as provided in said contract, and also all of our right in and to all sub-contracts which may have been or may hereafter be entered into, and the materials embraced therein. The condition of this conveyance being that in the event the undersigned shall fail or are unable to complete said work in accordance with the terms of the contract or contracts covered by such bond or bonds, or in event of any default on the part of the undersigned on any of said contracts, we, the undersigned do hereby nominate and appoint the president or vice president of the company our true and lawful attorney with full right and authority to sign the name of the undersigned to any voucher, check, release, bill of sale, satisfaction or paper necessary or desired to carry into effect the purposes of this assignment, hereby ratifying and confirming all that our said attorney may lawfully do in the premises, and do further authorize and empower said company, its authorized agents or attorneys, to enter upon and take possession of said tools, plant, equipment, materials and subcontracts and enforce, use and employ such possession.”

It was further provided by the contract between the parties that in ease of default by N. O. Thomas & Sons appellant should have the option of completing the building in accordance with the plans and specifications. N. O. Thomas & Sons made default and abandoned the contract. Due notice was given appellant of the default. At that time, the church held in its treasury a balance of ' about $5,000 of the contract price. As it had a right to do, appellant assumed the obligations of the contract and completed the building according to the plans and specifications to the satisfaction of the church. At request of appellant, the church furnished it with evidence of the satisfactory completion of the building, which was as follows:

“Southern Surety Company
“Des Moines, Iowa
“Gentlemen:
“This is to advise you that subject to the exceptions hereinafter stated, the Methodist Episcopal' Church South, of Center, Texas, has been completed to the satisfaction of the Building Committee, and is accepted by said Committee, subject to said exceptions, which are as follows:
“(1) It is not intended to release you from payment of any and all amounts due for material furnished and labor performed in the construction and erection of said church which are now unpaid, but that you remain liable as surety on contractor’s bond for the payment of such amounts.
“(2) It is not intended by this instrument to accept hidden defects, if any there be, in the erection of said church.”

Appellant did not object to the terms of this acceptance, but received it as in compliance with its request. When Thomas & Sons abandoned the contract, they owed Weaver Bros, for material actually furnished by them and actually used by Thomas & Sons in the construction of the building the amount sued for, as found by the jury. In taking over the completion of the contract appellant exercised its rights under the assignment made to it by N. O. Thomas & Sons, as copied above, by using all material, tools, appliances, etc., left by them on the job when the work was abandoned. Whether appellant knew, in fact, at the time it took over the work, that N. O. Thomas <& Sons were due Weaver Bros, the sum sued for for material furnished by them in the construction of the building, it acquired this information before the building was completed and before the balance of the contract price retained by the Church at the time of the default by N. O. Thomas & Sons had been expended; and, further, at the time it took over the work it was vested with facts sufficient to put it. on notice of the claim of Weaver Bros.

To complete the work required the expenditure of all the contract price with the additional sum of $1,226 advanced by appellant. Thus no part of the contract price was available for the purpose of liquidating the claim of Weaver Bros. As we understand the record, this was the only claim for material left unpaid. Weaver Bros, wholly failed to take the necessary legal steps to perfect their lient for the material furnished. They pleaded estoppel against the church to deny the validity of the lien, alleging that the agent of the church had asked them not to take steps to correct the defective filing of their claim and not to file suit in garnishment against the church, promising that the church would pay the claim if these things were not done. These issues went to the jury by appropriate questions, but as the jury reported it was unable to agree, upon answers to these questions, the trial court, on its own motion, withdrew the questions from further consideration.

Opinion. ■

Appellant’s principal proposition for reversal is as follows:

“Where a contractor abandons a building contract, having furnished to the property owner a surety bond conditioned for the indemnification of said property for loss or damage sustained by reason of such contractor’s default in performance of such contract, which hond names only such property owner as the obligee thereof; and where, after such abandonment by such contractor, the surety on such bond completes the building, such surety does not thereby become bound to materialmen for the payment of material bills incurred by said contractor prior to his abandonment of his said contract.”

In support of this proposition appellant cites Fidelity & Deposit Go. of Maryland v. Putegnat Co., et al., 15 S.W.(2d) 729, by the Court of Civil Appeals at San Antonio. A careful examination of the facts of that case shows them to be, in th.eir material bearing on the legal questions involved, absolutely od all fours with the facts of this case. The opinion by the Court of Civil Appeals sustains appellant’s proposition as quoted above, and if that proposition is the law, appellant would be entitled to a reversal of the judgment of the lower court and a rendition here in its favor that Weaver Bros, recover nothing against it. But writ of error was granted by the Supreme Court in that case and the judgment of the Court, of Civil Appeals was reversed. After carefully restating the facts and referring to the opinion of the Court of Civil Appeals for a fuller statement of facts, Judge Short, writing the opinion, said [Putegnat v. Fidelity & Deposit Co. (Tex. Com. App.) 29 S.W. (2d) 1004, 1007]:

“When the owner notified the defendant in error that the contractor had made default, the record shows that it elected to complete the contract, thereby becoming entitled to all the benefits of the contract and assuming-all its responsibilities. When the defendant in error reserved the right to make this election, and after he had exercised it, under the very conditions which it had previously prescribed, there was an assignment to it by virtue of the existence of the conditions set forth in the contract which had been made between the owner and the contractor. The contract having thus been assigned by the existence of the conditions and the election on the part of the defendant, in error to complete the contract, the defendant in error became entitled to the benefits of the contract, and necessarily assumed its burdens. The owner discharged his obligations under the contract. The contractor failed to discharge his, whereupon the defendant in error exercised its right to complete the contract and to stand on the terms of the bond, which, as we have seen, was so written as to embrace within its terms the contract made between the owner and the contractor. The facts in this case show the elements of an assignment by the contractor to the defendant in error of the contract, with the consent of the owner of the building, whereby the defendant in error, upon its election to complete the contract, became entitled to all of its benefits and assumed all of its responsibilities.”

A further discussion of the law of this case is not necessary. The facts, as we have stated them, appear without controversy, bringing this case clearly within the rule announced by Judge Short. In view of what has been said, the other errors assigned become immaterial. It is therefore ordered that the judgment of the lower court be, and the same is hereby, in all things affirmed.


author: McClendon, c. j.

text:
    COSTLEY v. GRACY.
    No. 7552.
    Court of Civil Appeals of Texas. Austin.
    Jan. 21, 1931.
    • Woodward, Hart, Gay & Hart, of Austin, for appellee.
   McClendon, c. j.

Appellant has filed no assignments of error and the record does not present fundamental error. This ordinarily would call for an affirmance of the judgment.

However, appellant has filed no brief or argument, nor otherwise entered an appearance in this court.

Therefore the appeal is dismissed.

Dismissed.


author: HIGHTOWER, C. J.

text:
    FIRST NAT. BANK OF PORT ARTHUR v. CITY OF PORT ARTHUR et al.
    No. 2089.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 12, 17, 1931.

      Joe W. Williams, of Port Arthur, F. J. & C. F. Duff, of Beaumont, and James Y. Allred, Atty. Gen., amicus eurise, by E. L. Looney, Asst. Atty. Gen., for appellants.
    R. A. Shivers, of Port Arthur, Orgain, Carroll & Bell, of Beaumont, W. P. Dumas, of Dallas, for appellee.
   HIGHTOWER, C. J.

The appellant, the First National Bank of Port Arthur, Tex., hereinafter referred to as the bank, prosecutes this appeal from a judgment of one of the district courts of Jefferson county, awarding to the appellees, the city of Port Arthur and the Central Construction Company, a writ of mandamus directing and compelling the bank to honor and pay a cheek drawn by the city of Port Arthur in favor of the Central Construction Company for the sum of $12,056.58. This check was drawn by the city of Port Arthur against funds that had been placed in the bank as the city’s depository and treasury, and was to pay the Central Construction Company for work done by that company in the construction of what is known and called the Stilwell Storm Drain in the city of Port Arthur. The bank refused to honor and pay the check for the reason, as claimed by it, that the city of Port Arthur was not authorized to expend any part of the fund on which the check was drawn in payment for the character of work that the Central Construction Company had performed for the city in connection with the Stilwell Storm Drain. There being no question of pleading involved as the case is presented to this court, no useful purpose would be served by a minute or detailed statement of the pleadings of the parties. As regards the pleading of the relators in the lower court, it will suffice to say that the allegations of their petition made a case entitling them to the relief sought and which was granted, provided the city of Port Arthur was authorized to expend any portion of the fund against which the check in favor of the Central Construction Company was drawn in payment for the work done by that company for the city of Port Arthur on the Stil-well Storm Drain.

The bank, respondent below, answered by a plea in abatement, general demurrer, and a number of special exceptions, all of which were overruled, and that ruling is not complained of here. The bank further answered by general denial, and then specially averred that the fund against which the check in question was drawn was not subject to its payment for the reason that the city of Port Arthur had no authority under the Constitution and law of this state to expend any, part of that fund in payment for the work done by the Central Construction Company on the Stilwell Storm Drain. The facts upon which the bank bases this contention were minutely and fully stated in its answer, but . it is unnecessary to repeat them here. The material facts that give rise to this controversy are either admitted by the parties or stand undisputed in the record.

The city of Port Arthur is situated on the coast of the Gulf of Mexico in Jefferson county, Tex., and being so situated, is authorized to vote and issue bonds for the purpose of providing means to construct and maintain sea walls and breakwaters, as provided by section 7, article 11, of the Constitution of Texas.

The Forty-First Legislature of the State of Texas, at its Regular Session (chapter 292), passed an act donating to the city of Port Arthur for a period of twenty years, if.necessary, eight-ninths of the state ad valorem taxes in commissioners’ precinct No. 2 of Jefferson county, Tex., in which the city of Port Arthur is situated, for the purpose of aiding the city of Port Arthur in paying the interest and sinking fund upon an issue, of bonds, “The proceeds of which bonds are to be used exclusively in constructing, maintaining sea walls, breakwaters and shore protections in order that said city be protected from calamitous overflows and storm waters. The use and diversion of such monies for any other purpose whatsoever is hereby prohibited.” Section 5. The act further provides for the collection of these taxes by the tax collector of Jefferson county, and directs that official to turn them over to the city treasurer of the city of Port Arthur, Tex. It further provides, by section 1 thereof, that the donation of the taxes shall be for a period of twenty years commencing with the fiscal year beginning September 1, 1929. Section 5 of the act has this further provision:

“ ⅜ * * That when the sinking fund created under the provisions of this Act shall become sufficient to retire all bonds issued hereunder, this Act shall cease to be operative and the donation herein made shall cease.”

Section 5 of the act has this further provision:

“ * * * Violation of the provisions of this Section shall constitute a misapplication of public mohey and the person or persons so offending shall be punished as provided for in Article 86 of the Penal Code of the State of Texas.”

It is admitted by appellant, and conclusively shown by the record in this case, that the city of Port Arthur, by proper resolutions, ordinances, and vote of its citizens, was authorized to issue its bonds in the sum of $2,-000,000 “for the purpose of constructing and .maintaining a seawall, breakwaters, and shore protection, in order to protect the City of Port Arthur, Jefferson County, Texas, from calamitous overflows.”

The undisputed evidence discloses that the city of Port Arthur did duly and legally issue $1,700,000 worth of these bonds, which were duly and legally approved, and they were regularly and legally sold and the proceeds thereof placed and deposited in the First National Bank of Port Arthur, Tex., as the city’s legally designated and qualified depository and treasurer. This bond fund is kept by the bank as a separate fund, and the city’s check in favor of the Central Construction ,Company here in question was drawn on this fund.

The city of Port Arthur, according to the undisputed facts, has never levied or collected any tax to take care of the interest or sinking fund of these bonds, but has, up to the present time, relied on the taxes donated by the state for this purpose, and it seems that it is contemplated that this state tax will in the future be sufficient to take care of these items.

The record shows that the city of Port Arthur, at the time of the commencement of this proceeding and for some time prior thereto, had been constructing a sea wall around the city, the plans and specifications of which had been prepared by competent engineers employed by the city for that purpose, and the work was being done under the supervision, direction, and control of these engineers. A great portion of the sea wall contemplated by the city, under the plans and specifications of its engineers, had been done at the time of the filing of this suit, and it is contemplated that the construction of the sea wall will be continued and completed under the supervision and direction of these engineers.

The record discloses that the Stilwell Storm Drain above mentioned connects at right angles with a portion of the sea wall now completed and that this drain or ditch is about 2,000 feet in length. This drain, or ditch, was cut, or dug, about fourteen years ago, and the work that the Central Construction Company did on this drain, and which it is eonteriiplated the company will continue to do, was to place concrete walls in this drain constituting it a concrete conduit, and then the conduit is to be covered with dirt. At the point where this drain connects with the sea wall, pumps have been installed and attached by the city under the supervision and direction of its engineers for the purpose of pumping the water out of this storm drain and over and outside of the sea wall, when necessary.

The brief filed by counsel for the appellant bank in this case presents sixteen propositions under which it is contended the judgment of the trial court must be reversed and here rendered in its favor. The first five propositions are grouped and presented together, since they relate to and raise the same legal proposition. The substance’ of appellant’s contention made by these several propositions is that the city of Port Arthur was and is prohibited by section 8, article 11, of the Constitution of Texas from expending any portion of the bond fund in question in payment for the work done on the Stilwell Storm Drain by the Central Construction Company for the reason that the Stilwell Storm Drain is neither a sea wall nor a breakwater, as those terms are used in the Constitution, but that on the contrary the Stilwell Storm Drain was shown by the undisputed evidence to be only a part of the drainage system of the city of Port Arthur, and it contends that under the Constitution, section 8, article 11, as well as under the act of the Legislature hereinbefore referred to, the city of Port Arthur could not lawfully expend the fund against which the (check in question was drawn. Since a disposition of this contention must control and dispose of this appeal, we shall not discuss or mention other propositions advanced by appellant.

Just before this cause was reached for submission in this court, the Honorable James V. Allred, Attorney General of the State of Texas, requested and was granted permission to file a brief as amicus curias on behalf of the state of Texas, and he did so. In this brief the Attorney General advances the same contention as is made by the appellant bank under its first five propositions. Therefore, our disposition of appellant’s contention will have the effect to dispose of the contention made by the Attorney General.

In other words, counsel for appellant and the Attorney General make the contention that the language employed in section 8 of article 11 of tlie Constitution is so plain and unmistakable that it is not subject to judicial construction, and that the Legislature could not grant state aid to any Gulf Coast city or county under that section for any purpose other than the construction of sea walls and breakwaters, as those terms are ordinarily understood. To be more precise, they contend that no structure or work of any character that is not actually a part of the sea wall proper, that is, the physical structure itself, or the breakwater proper, can be paid for with money furnished by the state.

Counsel for appellant and the Attorney General in this connection direct our attention to the definition of the term “sea wall,” as given by the New Century Dictionary, volume 4, page 411. As there defined, a sea wall is:

“A cliff by the sea, a wall formed by the sea; a strong wall or embankment on the shore designed to prevent encroachment of the sea to form a breakwater. An embankment of stone thrown up by the waves on a shore.”

According to the same authority, volume 1, page 671, a breakwater is:

“Any structure or contrivance as a mold, mound, wall, or sunken hulk, serving to break the force of the waves and protect a harbor or anything exposed to the force of the waves.”

If it be true, as contended by counsel for appellant and the Attorney General, that this court should adopt these definitions and apply them strictly in arriving at the meaning of the framers of the Constitution when they drafted section 8, article 11, it perhaps would result in a reversal and rendition of this judgment. But we decline to be governed by these definitions of the lexicographer in arriving at the intention of the framers of the constitutional provision now in question, because to do so would, we think, be giving to that constitutional provision a construction entirely too .narrow and such as was not intended.

The counter proposition advanced by counsel for appellees in answer to the contention of appellant, as we have just stated it, is as follows:

“The object and purpose of section 8, article 11, of the Constitution being to protect counties and cities bordering on the Gulf Coast against calamitous overflows, it will be construed in a broad way so as to accomplish its purpose, and the undisputed facts showing that the storm sewer being constructed for which the bond money in question is being spent is a component part of the seawall protection project of the City of Port Arthur and made necessary by the construction of the seawall proper, the court would not err in holding that the expenditures involved were not in violation of said article of the Constitution.”

If the facts assumed in this counter proposition are true, which must be determined, from the evidence in the -record, we are of the opinion that the proposition itself is sound and must be sustained.

We find in the record the testimony of three civil engineers. One of these engineers is the witness J. B. Converse. Another is the witness B. F. Williams, and the third is the witness J. C. MeVea. All of these witnesses were shown to be men of many years of experience in their line of work and their qualifications are not questioned in any respect. We.shall not undertake to quote the testimony of these witnesses touching the relation of the Stilwell Storm Drain to the sea wall proper, that is, the physical structure of the wall itself, but will state the substance of this evidence only. It is clear from the testimony of these engineers that it is their opinion that the sea wall proper cannot adequately function as a sea wall by giving protection to the city of Port Arthur without the aid that the Stilwell Storm Drain or some other similar structure will afford. It is true that all of these engineers testified that the sea wall itself, that is, the physical structure itself, would stand and resist the force of wind and waves and the effect thereof to a certain extent without the assistance of this storm drain, but' it is equally clear from the testimony of these engineers that this Stilwell Storm Drain, located as it is and attached to the sea wall as it is, will not only be of great benefit to the city of Port Arthur in the ordinary drainage work of the city, but that this drain is also essential and necessary in the case of gulf hurricanes which are always accompanied by heavy rainfalls. In other words, the testimony of .these engineers is to the effect that even as to gulf waters that come over the sea wall during the raging of gulf hurricanes the Stilwell Storm Drain is necessary and essential to take care of thát character of flood water and remove it as quickly as possible over the seawall for the protection of the city. It is true that the Stil-well Storm Drain or ditch, as it was then called, had been in existence a number of years before the sea wall construction was commenced, but now the city contemplates improving this ditch, or drain, by doing the concrete work on it, as we have already stated, to make dt as efficient as possible to remove storm waters, both gulf and rainfall, from the city of Port Arthur. Counsel for appellant and the Attorney General admit that the fact that the ditch was dug before the construction of the sea wall and was in use by the city as a part of its drainage protection is of no material consideration in this ease. The material point is as to whether this Stil-well Storm Drain when completed, as is contemplated it shall be, will afford essential and necessary aid to the sea wall proper in getting rid of storm waters that come over the seawalls during gulf hurricanes. If the Stilwell Storm Drain will have this effect and afford this aid and assistance in connection with the sea wall proper, then it is our opinion that the Stilwell Storm Drain is and must be considered a part of the sea wall itself, as the term sea wall is used in section 8, article 11, of the Constitution, and, if this is correct, there can be no doubt upon the facts in this record that the trial court’s judgment awarding the writ of mandamus was correct.

We are wholly unable to agree with learned counsel for appellant and the able Attorney General that no character of structure or work used in connection with a sea wall but which is not actually a part of the' sea wall itself can lie paid for by state money because prohibited by section 8, article IT, of the Constitution. The framers of that article did not undertake to direct what material should be used in the construction of sea walls and breakwaters, nor did they attempt to direct, expressly or by implication, what the plans and specifications of sea walls and breakwaters should be. Indeed, the language of the framers there was very general, and it is probable that few, if any, of them had any knowledge of sea wall or breakwater construction work or as to the materials out of which they should be constructed. These matters necessarily were left to men competent in that line of work, such as the engineers who testified in this case. What the framers of the Constitution had in mind was the protection, as far as could be given, to cities and counties situated on the Gulf Coast in Texas, and by reason of their situation exposed to great hazards of the sea. It is but reasonable to presume that the framers of the Constitution knew that different structures in the way of sea walls and breakwaters would be used in different counties and cities bordering on the Gulf Coast by reason of the fact that the natural locations of such counties and cities would be different, the general topography of the country would be different, the elevation of these different counties and cities above sea level would be different, and that a character of structure or work that might be suitable and sufficient for the protection of one of these, counties or cities would be wholly inadequate and insufficient for the protection of another differently situated and located in the respects above mentioned, and it ought to be presumed, we think, the framers of the Constitution contemplated that Gulf Coast cities and counties would engage the services of competent engineers in the construction of sea walls and breakwaters when deemed necessary for their protection and that they would be governed by the advice, skill, and judgment of such engineers as to the character, kind, and extent of the structures that would be erected or constructed. Now this record shows without dispute, as we have already intimated, that all of the engineers who testified in this case agree that the sea wall contemplated by the city of Port Arthur, and which is largely already constructed, must have, as a part thereof and in connection, therewith, such a character of construction as the Stilwell Storm Drain in order that the wall itself may function in giving protection to the lives and property of the people of the city, which was the uppermost thought in the minds of the constitutional framers when section 8 of article 11 was framed.

Now let us see what the exact words of section 8, article 11, of the Constitution are:

“The counties and cities of the gulf coast being subject to calamitous overflows, and a very large proportion of the general revenue being derived from those otherwise prosperous localities, the legislature is especially authorized to aid by donation of such portion of the public domain as may be deemed proper, and in such mode as may be provided by law, the construction of seawalls or breakwaters, such aid to be proportioned to the extent and value of the works constructed, or to he constructed, in any locality.”

Counsel for appellees, in their brief, call our attention to a number of general rules of construction pertaining to constitutional provisions. One of these rules is that referred to by our Supreme Court in Walker v. Meyers, 114 Tex. 225, 266 S. W. 499. The general rule there reierred to is that contemporaneous and practical construction óf constitutional provisions by the Legislature in the enactment of laws should have great weight and give rise to a natural presumption that the legislative construction rightly interprets the meaning of the provision. In connection with this general rule, counsel for appellee in their brief direct our attention to the several acts at different times of the Texas Legislature granting aid to Gulf Coast cities under section 8, article 11, of the Constitution. One of these is the act granting aid to the city of Galveston shortly after the destructive gulf hurricane in 1900. Another is the act granting aid to the city of Corpus Christi; another is the act granting aid to the city of Freeport; another is the act granting aid to the city of Rockport; another is the act granting aid to the city of Port Lavaca; another is the act granting aid to the city of Aransas Pass. In this connection counsel contend, and undertake to sustain the contention, that the Legislature in each of the instances above stated gave a broad and liberal construction to section 8 of article 11 of the Constitution and that the Legislature in those instances did not construe that section to limit -state aid to Gulf Coast cities for the construction of sea walls and breakwaters, that is, to those physical structures themselves, but construed section 8 in a broad way so as to give aid to those Gulf Coast cities in the construction of works not actually a part of a sea wall or breakwater. We shall not dwell upon this suggestion of counsel, though we are impressed with the force of this suggestion and the argument in connection. Other general rules of interpretation and construction may be said to be the following:

l. The intention of the makers of the Constitution will be ascertained, and when that intention is so ascertained, whether expressed in plain language or not, such intent becomes as much a part of the law as if it had been expressed in plain and unequivocal terms. This was the rule announced by our Supreme Court in Mills County v. Lampasas County, 90 Tex. 606, 40 S. W. 403.

2. Legislation, organic or statutory, must be reasonably construed and in a manner not repugnant to common sense. This rule is announced in Queen Insurance Co. v. State, 86 Tex. 250, 24 S. W. 397, 22 L. R. A. 483, and in St. Louis S. W. Railway Co. of Texas v. Tod, 94 Tex. 632, 64 S. W. 778.

3. A public grant for a public advantage should be liberally construed in an endeavor to accomplish the purpose of the grant. This rule was announced in Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S. W. 553.

4. In construing a law it will be presumed that the creators of same are familiar with the conditions to be relieved against and the condition of the county to which the act is applicable. Winona & St. P. R. Co. v. Barney, 113 U. S. 625, 5 S. Ct. 606, 28 L. Ed. 1109.

5. If possible, that construction will be adopted which will promote the public interests in accord with sound economic policy. This rule was referred to in State v. De Gress, 72 Tex. 242, 11 S. W. 1029.

6. In the construction of Constitutions, as well as statutes, the powers necessary to the exercise of power clearly granted will be implied. This rule was referred to in Texas Cent. R. Co. v. Bowman, 97 Tex. 417, 79 S. W. 295.

7. Where a general power is conferred, every particular power necessary for the exercise of same is also conferred, whether expressly granted or not. This is the -rule laid down in Cooley’s Constitutional Limitations (8th Ed.) vol. 1, page 138.

In addition to the above general rules of interpretation, we think that the rule announced by our Supreme Court, through Chief Justice Phillips, in Aransas County et al. v. Coleman-Fulton Pasture Company, 108 Tex. 216, 191 S. W. 553, 554, where section 52 of article 3 of our Constitution was under construction, is the rule of greatest application to the facts in this case. It is as follows:

“The spirit, purpose and scope of the particular provision are all to be consulted in the effort to determine with certainty the meaning of its terms.”

Applying that rule in this case, we have no hesitancy in concluding that the expenditure by the city of Port Arthur of its bond money above mentioned for the work done by the Central Construction Company in constructing the Stilwell Storm Drain was not prohibited and would not be in violation of section 8, article 11, of the Constitution. The spirit and the purpose that actuated the • framers of that article was mainly the protection of the lives and property of people in cities situated on the Gulf Coast and always exposed to danger and hazards of the sea. Protection to those people and their property, we say, was the main and controlling thought, and in addition to that, and as incidental to that, was the benefit that would redound and accrue to the people of the whole state of Texas by protecting such of its citizens as live in the exposed cities. It was known that many Texas counties and cities were so situated upon the Gulf Coast as tó be constantly exposed to the ravages and destruction of gulf 'hurricanes, and the purpose of the frhm-ers of the article was to give protection, as far as possible through human skill and agency, to the lives and property of our citizens exposed to such hazards.

We think that the trial court, under the evidence in this case, was correct in finding and concluding that the construction of the Stilwell Storm Drain, as contemplated, was an essential and necessary and component part of the sea wall project at Port Arthur, and that therefore the Stilwell Storm Drain when completed will be a part of the sea wall in the sense in which that term is used in section 8, article 11, of the Constitution.

From these conclusions it follows that the judgment of the trial court should be affirmed, and such is our order.

All parties agreed to abide judgment, and at their request mandate has this day (February 17, 1931) been issued.


author: ALEXANDER, J.

text:
    GRISHAM v. TATE et al.
    No. 1032.
    Court of Civil Appeals of Texas. Waco.
    Jan. 15, 1931.
    Rehearing Denied Feb. 12, 1931.
    Bartlett & Peterson, of Marlin, and J. W. Spivey, of Waco, for appellant.
    Terry Dickens, of Marlin, and C. D. Jessup, of Houston, for appellees.
   ALEXANDER, J.

This was a suit instituted in the district court of Falls county by the appellant J. W. Grisham, as a taxpayer, against C. L. Tate, as tax collector of Falls county, and J. B. Landrum, county judge, and Frank Peacock, F. A. Tate, W. H. King, and B. H. Brunner as commissioners of said county, seeking to enjoin the collection of taxes levied in new road district No. 4 of Falls county, for the purpose of paying off certain bonded indebtedness in said district. The plaintiff alleges that on or about the 9th day of September, 1929, the commissioners’ court of Falls county created and established new road district No. 4 in said county, and that thereafter on petition properly presented the commissioners’ court ordered an election in said district to determine whether or not it should issue road bonds on the faith and credit of said district in the sum of $446,000. The plaintiff further alleges that at the election for the issuance of said bonds said issue carried and the commissioners’ court passed an order authorizing the issuance of said bonds; that the court has levied a tax on all property located in said proposed district for the purpose of liquidating said bonds and is now seeking to collect such taxes. The plaintiff alleges that he is a taxpayer owning property in said proposed district and that such taxes will be collected unless the injunction is granted. The plaintiff further alleges that said district is not properly, defined and there is not sufficient description of the metes and bounds of said district to determine the area of the district attempted to be created by the order aforesaid; that said field notes and calls as described in the order creating said district are inaccurate, unintelligible, and it is impossible for a surveyor or other person to go according to said field notes and survey said lands embraced in that part of Falls county which is now said to be road district No. 4, and especially are the fieTd notes incorrect in that there is a line missing from said field notes from the southwest corner of the Rice Adkins tract to the southwest corner of the T. F. Turner tract, and by reason of said line 'being missing in the survey of said area said district is indefinite and the field notes thereof do not close, and that by reason thereof said bonds are void and the commissioners’ court has no right to collect such taxes.

The trial was had before the court without a jury, and at the conclusion of the evidence judgment was entered for the defendants, and the plaintiff appeals.

At the threshold of the case the appellees, by general demurrer, challenge the right of the appellant as a taxpayer to maintain the suit. It is the contention of the appellees that the road district in question is a quasi municipal corporation acting under color of law; that the suit in question is a contest on the legal existence of such district, and that its legality can only be determined by a suit brought for that purpose in the name of the state or by some one under the authority of the state, and that the plaintiff, whose only interest is that of a taxpayer, cannot maintain the suit for the purpose of annulling the district; and further that if the suit is not for the purpose of testing the legal existence of the district that this is a collateral attack thereon, and that the plaintiff has no right to collaterally attack the existence of the district in this suit.

Chapter 16, 39th Legislature, First Called Session (Acts 1926, page 23 [Vernon’s Ann. Civ. St. arts. 752a to 752w, 752a note]), provides for the establishment of road districts in a county by the commissioners’ court of the county entering an order declaring such road district established and defining the boundaries thereof. Section 20 of the same act (Vernon’s Ann. Civ. St. art. 752r) provides as follows:

“Any road district, or any political subdivision accepting the provisions of this Act, shall be a body corporate and may sue and be sued in like manner as counties.”

It has been held that a road district when so created is a quasi public corporation. Tyree v. Road District No. 5, Navarro County (Tex. Civ. App.) 199 S. W. 644; Maroney v. Feagin (Tex. Civ. App.) 264 S. W. 105. It is a well-established rule that when the creation of a public corporation or quasi public corporation is authorized by statute and a corporation has been organized under color of such authority, its corporate existence cannot he inquired into by the courts in a collateral attack. It is also the rule that the validity of such incorporation can only be determined in a suit brought for that purpose in the name of the state or by some individual under authority of the state who has a special interest which is affected by the existence of the corporation. City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; Graham v. Greenville, 67 Tex. 62, 2 S. W. 742; Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W.(2d) 91; Crabb v. Celeste Ind. School District, 105 Tex. 197, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146; Brennan v. City of Weatherford, 53 Tex. 330, 37 Am. Rep. 758; Snyder v. Baird Independent School District (Tex. Civ. App.) 109 S. W. 472; Troutman v. McClesky, 7 Tex. Civ. App. 561, 27 S. W. 173. The reason for such rule is apparent, for if each taxpayer or interested party should be permitted to maintain a separate suit for the purpose of contesting the legality of the corporation, one complainant might prosecute his suit to effect and have the corporation declared illegal as to him, while another complainant might not be so successful and in consequence the corporation would have a legal existence as to one taxpayer, while it would be illegal as to another.

The rule, however, is not without its exception. Where there is no law authorizing the creation of such a corporation, or where the law under which it purports to exist is unconstitutional, or where the attempt to comply with the provisions of the law authorizing such creation is so utterly lacking 'or defective as to render the attempt to create such a corporation void, the right of such corporation to exist may be challenged by any party whose interest is directly affected thereby, especially where the purported corporation has not existed for a sufficient length of time to become a de facto corporation.

In the case of Parks v. West, 102 Tex. 11, 111 S. W. 726, 729, the Supreme Court said:

“It is said that it is essential to the doctrine that there be in existence a law in virtue of which such a corporation as that the party to the litigation claims to be might legally exist and ‘that the rule is the same where there is only an unconstitutional law.’ Even this qualification of the rule seems to be subject to exceptions applicable in cases where ■ the attacking party sustains certain relations to the alleged corporation or has no right of his own to be protected by allowing the inquiry.”

The court in the same ease, however, said:

“But be that as it may, the attack of the plaintiffs is not merely upon the corporate existence of the district, but is directed against the power of the defendants to lay burdens on their property and subject them to the payment of taxes. Surely they have the right to do that although the reason they assign for the lack of power may also go to the right of the district to exist under the Constitution. Certainly a property holder has the right to say to the court that he is protected by the Constitution from the imposition of a tax by persons to whom the Constitution, in effect, denies such power. If the rule relied on by defendants should preclude plaintiffs from making the contention now, when and in what way could they make it? So far as we can see, the rule would equally apply to an effort to resist the collection of the tax by suit' or otherwise. The consequence to which the contention leads is that, while the Constitution does not permit such a school district to exist and levy taxes, it may yet do both and force property owners to pay until the officers of the state see fit to intervene. Useful and convenient as is the doctrine invoked, we cannot give our assent to an application of it, which would deny to the plaintiffs the protection sought of their property rights.”

It will be noted, however, that the court there had under consideration a case wherein the law under which the corporation purported to have been created was unconstitutional. The Legislature had passed an act authorizing the creation of a school district composed of territory out of two or more counties and the Mertens independent school district had been so created. The court held that the Constitution did not authorize the enactment of such a statute. The corporation did not have a de facto existence, and its incorporation therefore was absolutely void and as such was subject to attack in any action in which the right of a citizen was involved. The statement from that court last above quoted was therefore not necessary to a disposition of that case. Coffman v. Goree Independent School District (Tex. Civ. App.) 141 S. W. 132; Huggins v. Vaden (Tex. Civ. App.) 259 S. W. 294, at page 206; Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W.(2d) 91.

This same court had previously said in the ‘ ease of City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25, 26:

“The rule is well established that when the creation of a public corporation — municipal or quasi municipal — is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can only be determined in a suit brought for that purpose in the name of the state, or by some individual under the authority of the state, who has a special interest which is affected by the existence of the corporation.”

In the case at bar there is no contention that the statute does not authorize the creation of the district in question, nor that the ■law under which it purports to act is unconstitutional. The only objection is to the procedure followed in the creation of the corporation.

Was the attempt to create the road district so defective as to be utterly void? The only complaint is that the district is not properly defined in that the field notes do not close. The proceedings by which the 'district was created and the bonds voted and issued otherwise appear to be regular. There is only one place where the field notes do not close. The description starts at a places- on the Brazos river, and after proceeding up the river to a given point, the field notes follow definite lines until they reach the northwest corner of the Rice Adkins tract in the north line of the Biscamp Survey. The calls thereafter are as follows: “Thence S. 30 E. with said Adkins W. line 1085 vrs. to the F. T. Turner S. W. corner in the E. line of the Burchard Survey.” Prom thence the field notes follow definite lines to the place of beginning. The P. T. Turner land lies immediately west of the Adkins tract, and if we start at the N. W. corner of the Adkins tract and run S. 30° E. with said Adkins west line 1,085 varas, we arrive at the S. E. corner of the P. T. Turner land instead of the S. W. corner of .said tract as is called for in the field notes. It is contended therefore that there is no ^definite call by which the field notes pass from a point in the W. line of the Adkins tract to the S. W. corner of the Turner tract. The question therefore arises: “Are the field notes sufficiently definite to enable those interested to locate the property intended to be included in the district?” By supplying one additional word, to wit, “Thence,” the field notes will close and the description will be rendered complete. If this word be supplied the notes will then read: “Thence S. 30 E. with Adkins W. line 1085 vrs. Thence to the P. T. Turner S. W. corner in the E. line of the Burchard Survey.” The addition of this word will not change the course of any line in the original field notes and will not create any additional corners or touching points. The field notes as originally drawn called for the line to run from the N. W. comer of the Adkins tract with his W. line S. 30° E. 1,085 varas. They also call for Turner’s S. W. corner. It is evident that the commissioners’ court intended that the line should run from the given point in the W. line of the Adkins tract to the S. W. corner of the Turner tract. We may therefore safely assume that the court intended to follow a straight line in connecting these two points. In fact, no other conclusion can safely be drawn. In arriving at the intention of the parties, it is the duty of the court to take a common sense view of their acts. The courts should aid construction rather than become agencies of destruction. In order to accomplish the intention of the parties, we are authorized to supply the missing word. In 43 C. J. 107, under the heading, “Municipal Corporations,” it is said:

“A description is not void for uncertainty where it is not so uncertain as to render impossible the ascertainment of the boundaries intended to be established and the territory intended to be included therein. Also a mis-description of a boundary of a municipality is not fatal where other courses, distances, and descriptions show with reasonable certainty the boundary intended. A description sufficient for a deed is sufficient to describe the boundaries of a municipal corporation.”

I-n 18 C. J. 185, it is said:

“Again it has been determined that an omission of part of the boundaries or calls is not fatal to the validity of the deed, where such boundaries or calls can be supplied or the description be rendered certain,” citing Montgomery v. Carlton, 56 Tex. 431; Fortenberry v. Cruse (Tex. Civ. App.) 199 S. W. 523; Noland v. Weems (Tex. Civ. App.) 141 S. W. 1031; Wells v. Heddenberg, 11 Tex. Civ. App. 3, 30 S. W. 702.

Our courts bave sustained description of land where one of the calls has been left out or where there is an entire omission of a line necessary to mahe the survey close. Brown v. McKee, 80 Tex. 594, 16 S. W. 435; Tompkins v. Thomas, 54 Tex. Civ. App. 440, 118 S. W. 381. The field notes may be reversed in order to make the survey close. William Carlisle & Co. v. King, 103 Tex. 620, 133 S. W. 241. In Wilson v. Brown (Tex. Civ. App.) 145 S. W. 639, the validity of a school district was attacked on account of insufficient description of the territory included therein. The field notes called for the line to run to the S. E. corner of the P. T. Roberts Survey at R. L. Brown’s N. E. corner ; thence in a southerly direction for a certain distance. R. L. Brown’s N. E. corner did not coincide with the S. E. corner of the P. T. Roberts Survey. It was intended that the line should (run to R. L. Brown’s N. B. corner. The map drawn in connection with the field notes of the district and recorded as provided by law used the S. E. corner of the Roberts Survey as the turning point. The court heard evidence and found that it was the N. E. corner of the R. L. Brown tract that was intended by the surveyor and that the defect in the field notes was not sufficient to invalidate the district. A similar holding was made in the case of Parker v. Harris County Drainage District No. 2 (Tex. Civ. App.) 148 S. W. 351.

As evidence of the intention of the commissioners’ court as to the location of the line in question, the commissioners’ court, after the establishment of the district and the voting of the bonds, entered an order on its minutes nunc pro tunc in which it was provided that the disputed line in question should run as follows: “Thence S. 30 E. with said Adkins W. line 1085 vrs. to P. T. Turner S. E. porner; thence S. 60 W. to P. T. Turner’s S. W. corner in the East line of the Burchard Survey.” On the trial of this case, evidence was introduced showing that it was the intention of the commissioners’ court in the creation of the district to run the line as above set out. Moreover, the order for the bond election after describing the territory included therein as in the original order creating the district further recited: “Attached hereto and made a part hereof is a map of said new road district No. 4 of Palls County, Texas, with the boundary lines thereof as hereinbefore described distinctly marked thereon.” The evidence shows that such a map had been made and that the field notes of the district as marked thereon call for the line in question to run with Adkins’ west line to the S. E. corner of the Turner tract and thence with the south line of the Turner tract to the S. W. comer thereof. It is true that this map was not published nor posted in connection with the bond election, but it does furnish evidence of the intention of the parties and' of the true location of the line of the district. The appellant’s land is not located near the disputed line, but is clearly included within the district.

The defect in the field notes of the district constitute a mere irregularity in the creation of the road district and do not, of themselves render the incorporation void. Wilson v. Brown (Tex. Civ. App.) 145 S. W. 639, at page 641.

The judgment of the trial court is there-' fore affirmed.


author: PLY, C. J.

text:
    STATE MORTGAGE CORPORATION v. LUDWIG et al.
    No. 8533.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1931.
    Rehearing Denied Feb. 11, 1931.
    N. W. Palmer and Thomson, Dilworth & Marshall, all of San Antonio, for plaintiff in error.
    Meritt H. Steger, Church & Graves, and Marcus W. Davis, all of San Antonio, for defendants in error.
   PLY, C. J.

Two original petitions were filed in this suit, in both of which Milton Ludwig, Edna Scott, and Josie Weilbacher, the latter joined with her husband, were plaintiffs; James Stevens, sheriff of Bexar county, State Mortgage Corporation and N. W. Palmer being defendants in one suit, and the State Mortgage Corporation being defendant in the second suit. The suits were consolidated, and, in the petition in the consolidation, the suit as to Stevens was discontinued on account of his death. The object of the suit was to remove clouds from the title to certain land. Two minor children of Albert Ludwig, deceased, and Willie Ludwig, his wife, intervened in the suit and aided in litigating the consolidated suit. '

The findings of fact filed by the trial judge are fully sustained by the statements, and are adopted by this court, but are not copied into this opinion on account of being . too lengthy and voluminous.

The facts show that Albert Ludwig was the father, by his first wife, of Milton Ludwig, Edna Scott, and Josie Weilbacher, and that, after her death, he married his second wife, Willie Ludwig, and she bore him the minors who intervened in this suit.

The facts show that when his first wife died her community interest in the land in controversy was inherited by Milton Ludwig, Edna Scott, and Josie Weilbacher. A suit for taxes was instituted against Albert Ludwig alone. The property in controversy consisted of lots situated in different portions of the city of San Antonio. .The lots were assessed for taxation, not separately, but in bullí; the taxes were sued for in bulk; the judgment was for the taxes in bulk; the order of sale of the lots was in bulk; and the lots were sold together for a lump sum. All these acts were'performed in open antagonism to the ruling of the Supreme Court in Richey v. Moor, 112 Tex. 493, 249 S. W. 172, 174, which uses the following unequivocal language: “Our whole taxation system is based upon the idea that the amount assessed against each tract of land is, in effect, a separate tax. True, it becomes a part of the gross amount of taxes owed by the taxpayer, but it is separately assessed, separately secured by the lien, separately set forth in the statutory tax receipt if paid, and, if not paid, separately reported on the delinquent rolls, separately described when sued for, separately adjudged against the land, which must be separately sold, and specified in the tax deed.”

It is clearly inferable from the language of the Constitution that no parcel of land can be held liable for any except the taxes assessed against it, and our decisions hold that a ‘ judgment in solido for the taxes against separate parcels of land is null and void. Davis v. West (Tex. Civ. App.) 6 S.W.(2d) 870; Seber v. Mills (Tex. Civ. App.) 18 S.W.(2d) 207.

Such judgments, being void, may be attacked in any collateral proceeding.' A judgment such as the one now under consideration was held by this court to be null and void. State Mortgage Corporation v. Affleck, et al., 27 S.W.(2d) 648. The opinion is in line with former opinions of this court, and will be held as the position of this court, rather ■than as assumed in Allen v. State Mortgage Corporation, 19 S.W.(2d) 109.

It is the only just rule to be enforced for the protection of the taxpayer. Where there are several tracts of land, the citizen should be granted the privilege of paying the taxes on one or more of the tracts he wishes to retain and leaving the others to their fate. It may be that he is unable to pay the entire tax, but there may be a tract peculiarly dear to him, the taxes against which he can pay, and justice will accord to him this privilege. There is complete unison in the decisions to this effect.

The judgment against Albert Ludwig did not bind the children of his first marriage, who were in possession of their part of the property. Even if it be admitted that they were joint tenants with their father of the lots, we doubt that a judgment against one joint tenant will bind the others in a tax suit.

We conclude that the judgment should be affirmed.


text:
    SLAUGHTER et al. v. SANDERS et al.
    No. 7518.
    Court of Civil Appeals of Texas. Austin.
    Jan. 7, 1931.
    E. R. Pedigo, of Austin, for appellants.
   McClendon, c. j.

Appellees sued appellants for damages alleged to have resulted from depredation of cattle upon appellees’ property, caused by wrongful cutting by appellants of partition fence between property of appellants and ap-pellees. Tbe appeal is from a judgment in favor of appellees upon a special issue verdict.

We are inclined to tbe view that several special issues requested by appellants were erroneously refused. However, after careful perusal of tbe statement of facts, we bave reached tbe conclusion that tbe evidence will not support tbe judgment in the following two respects, thereby rendering immaterial other questions raised by the appeal:

(1) The evidence is wanting in connecting appellants or either of them, either directly or indirectly, with the alleged fence cutting.

(2) The evidence conclusively shows that, for a long time prior to the injury complained of, tbe partition fence between appellants and appellees was in many places down and otherwise insufficient to prevent cattle depredations ; that in places there were no fences, and in others insufficient fences, between ap-pellees’ property and that of other adjacent landowners; and that cattle from such other properties constantly depredated upon appel-lees’ lands. The cutting complained of, by whomsoever it may have been done, was therefore conclusively shown not to have been a contributing cause to the injury sued for.

Tbe record shows that the case has been fully developed, and therefore there is no necessity to remand the cause.

The trial court’s judgment is reversed, and judgment is here rendered in favor of appellants.

Reversed and rendered.


author: BAUGH, J.

text:
    JENNESS v. SEIDL et ux.
    No. 7540.
    Court of Civil Appeals of Texas. Austin.
    Dec. 23, 1930.
    Rehearing Denied Jan. 14, 1931.
    W. A. Morrison, of Cameron, and J. W. Garner, of Rockdale, for appellant.
    E.' A. Wallace, of Cameron, for appellee.
   BAUGH, J.

John W. Seidl and wife sued appellant, who resides in Harris county, Tex., to cancel a note executed by Seidl payable to appellant in Milam county, and secured by a mortgage on personal property situated in Milam county, on the grounds that the note was procured by fraud and that most of the personalty was the separate property of Mrs. Seidl, mortgaged by her husband without her knowledge or consent. The plea of privilege of Jenness to be sued in Harris county, duly controverted, was overruled by the trial court; hence this appeal.

Two contentions are presented: One, that the controverting affidavit, which set out at length the grounds relied upon to fix venue in Milam county, was insufficient as against general and special demurrers; and, second, that tbe proof on said hearing clearly negatives any fraud.

Seidl purchased from Jenness 175 acres of land in Milam county in 1924, assumed a federal farm loan of $10,000, and gave second lien notes for $12,580. From 1924 to 1929 Jenness made numerous advances to Seidl to make crops on said land and to pay interest to tlie Federal Land Bank. Seidl made numerous payments during those years to Jenness, but paid none of the vendor’s lien notes. The fraud alleged was that it was agreed by Jenness in 1927 and 1928 that payments made to him by Seidl were to be first applied to repayment of such advances, so that upon extinguishment of same the personal property would be free of the mortgage'liens upon it; that Jenness represented to Seidl that he was so applying such payments, but that instead he was applying same to payment of interest on the land notes; that in 1929 he represented to Seidl that there was still due on said advances the sum of $1,928.35 for which the note and mortgage sought to be canceled were executed; whereas, as was known to Jenness at the time, all of said advances had been paid, and such false representations were made for the purpose of inducing Seidl to give a mortgage on said personalty as additional security, so that by foreclosure Jenness might obtain both the land and the personal property; that such representations were false and fraudulent, were made in Milam county, that Seidl believed and relied upon same, and was induced thereby to execute said note and mortgage.

The land was recovered by Jenness in another suit, and by cross-action in this suit, subject to his plea of privilege, he seeks judgment on said note and for foreclosure of his mortgage on said personalty.

It is manifest, we think, that the allegations above set out in brief, if sustained by proof, were sufficient to establish fraud in the respects pleaded. There is no controversy but that such fraud, if shown, occurred in Milam county. If the suit be properly maintainable there on that ground, the other grounds of venue urged become immaterial and we pass them without discussion.

After a full hearing before the court on said plea of privilege, the trial court found in his findings of fact as follows:

“I find that the plaintiffs have introduced evidence sufficient to support a finding upon a trial of the case upon its merits that he signed the note and mortgage for the reason and under the circumstances stated in the controverting plea to the plea of privilege, which evidence would be sufficient to support an affirmative finding of the truth of the allegations upon the trial of the case on its merits, and that such fraud in fact was committed in Milam County, Texas.”

We have read carefully the statement of facts and decline to disturb that finding. Both appellant and appellee testified at length, and their testimony on the fraud issue was conflicting. It is not our prerogative to pass upon its credibility. If it raised an issuable fact on the matters alleged, the venue was properly sustained in Milam county. Nothing would be added to the jurisprudence of ⅜½ state by undertaking to summarize or set out the testimony here. It was sufficient, viewed in its most favorable light, to sustain the trial court’s finding, the only matter presented to us in that connection. The judgment of the trial court overruling said plea of privilege is therefore affirmed.

Affirmed.


author: BLAIR, J.

text:
    T. T. WORD SUPPLY CO., Inc., v. STRIBLING et al.
    No. 7544.
    Court of Civil Appeals of Texas. Austin.
    Dec. 23, 1930.
    Rehearing Denied Jan. 14, 1931.
    Andrews, Streetman, Logue & Mobley and Homer E. Mabry, all of Houston, and Lawrence L. Bruhl, of Llano, for appellant.
   BLAIR, J.

By its first amended original petition, filed March 27, 1929, appellant sued appellees, J. O. Stribling and Isadore Leon, “individually and as copartners doing business without a firm name,” for $1,675, the price of certain oil well machinery and supplies sold to them by appellant in April, 1928. Stribling denied tbe partnership under oath, and by its first supplemental petition, filed May 12, 1930, appellant alleged that, if there was no partnership, then the account was the personal obligation of Stribling; but that Leon had recognized it as a partnership obligation, and had individually guaranteed its payment. By a trial amendment Stribling pleaded that any cause of action asserted against him individually was barred by the two-year statute of limitation.

The trial court found that $1,312.91 of the account was the personal obligation of Strib-ling and not a partnership obligation, and, upon this finding and the. conclusion that appellant’s first amended original petition was “insufficient as a matter of law” to charge Strib-ling individually with the debt, sustained his plea of limitation'as to the $1,312.91. Olqarly this was error. The first amended original petition charged that Stribling was liable individually and as a copartner for payment of the account. The first supplemental petition merely alleged more specifically the facts fixing Stribling’s liability, both individually and as a copartner for payment of the account. The suit remained one upon sworn account after the filing of the supplemental pleading the same as before it was filed, and the same evidence would have established Stribling’s individual liability for the account under either the original or supplemental pleadings. A pleading which seeks to charge a defendant with liability for payment of a debt in several capacities is sufficient to toll the running of the statute of limitation against the debt in either or all capacities when defendant is properly served or notified of the claim of his liability -for the debt. Likewise is the law settled that a pleading which seeks to charge a defendant individually and as a copartner with the payment of a debt is sufficient to toll the running of the statute of limitation as to the debt in favor of the defendant in either capacity in which he is sued. Gayle v. Ennis, 1 Tex. 184; Hall v. Pearman, 20 Tex. 169; Rider v. Duval, 28 Tex. 623; Roundtree v. Stone, 81 Tex. 299, 16 S. W. 1035; Latham v. Jordan (Tex. Civ. App.) 3 S.W.(2d) 555; Fowler Commission Co. v. Land & Co. (Tex. Com., App.) 248 S. W. 314; Mann v. Mitchell (Tex. Civ. App.) 241 S. W. 715; Frank v. Tatum (Tex. Civ. App.) 26 S. W. 900; Tex. Unity Oil Co. v. Dolman (Tex. Civ. App.) 8 S.W.(2d) 815; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 363; Orange-Mill Supply Co. v. Goodman (Tex. Civ. App.) 56 S. W. 700; Warnok v. Mills (Tex. Com. App.) 291 S. W. 850; Becker v. Directors of Gulf City Street Ry. Co., 80 Tex. 475, 15 S. W. 1094; Kopperl v. Sterling (Tex. Civ. App.) 241 S. W. 553; Davis v. Preston, 118 Tex. 303, 16 S.W.(2d) 117; Davis v. Gant (Tex. Civ. App.) 247 S. W. 576; Henderson v. Beggs (Tex. Civ. App.) 207 S. W. 565; Fuller v. El Paso Times Co. (Tex. Com. App.) 236 S. W. 455. We therefore reverse the judgment of the trial court sustaining Stribling’s plea of limitation as to $1,312.91 of the account, and here render judgment in favor of appellant against J. C. Stribling individually for said amount of $1,312.91, with interest; hut in all other respects the judgment of the trial court is affirmed.

Reversed and rendered in part, and in part affirmed.


author: LOONEY, J.

text:
    LOVENSTEIN v. LOVENSTEIN.
    No. 10875.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 3, 1931.
    Rehearing Denied Jan. 31, 1931.
    Tom Shires, of Dallas, for appellant.
    Taylor & Irwin, Miss Mildred Douglass, and George Sergeant, all of Dallas, for appellee.
   LOONEY, J.

The pertinent facts of the case, stated in chronological order, are these: On February 7,1926, judgment for divorce wafe rendered in favor of W. I. Lovenstein against his wife, Mary E. Lovenstein, on service of process by publication. The defendant made no appearance, either in person or by an attorney of her selection, but within two years sought a new trial under the provisions of article 2236, R. S. 1925. Her petition for new .trial was beard and granted on May 28, 1928, but tbe eleris failed to enter tbe order in tbe minutes of court until some time later. Tbe case was finally tried on its merits July 5, 1929, and judgment was rendered denying plaintiff’s petition, from wbicb be did not appeal. Discovering tbe failure of tbe clerk to enter tbe order for a new trial, defendant moved for a nunc pro tunc entry, wbicb tbe court authorized, and tbe same was duly entered on September 24, 1929, as of May 28, 1928. On May 30, 1929, plaintiff filed a motion, based on sundry grounds, praying that tbe order granting a new trial and tbe nunc pro tunc entry, be set aside and held for naught. From the order overruling this motion plaintiff prosecutes this appeal.

We have rather an anomalous situation. Plaintiff acquiesced, without appealing, in tbe final judgment against him on the merits of tbe case, but seeks by this appeal to bring up for review tbe action of tbe court vacating tbe original judgment and granting defendant a new trial. -This, in our opinion, cannot be done.

Defendant’s petition for a new trial was authorized by tbe following provisions of article 2236, R. S. 1925, viz.: “In cases in which judgment has been rendered on service 'of process by publication, where the defendant has not appeared in person or by attorney of bis own selection: 1. Tbe court may grant a new trial upon petition of tbe defendant showing good cause, supported by affidavit, flled within two years after such judgment was rendered. Tbe parties adversely interested in such judgment shall be cited as in omer cases. * * ⅜”

Our. courts have uniformly held, with possibly one exception (Brown v. Dutton, 38 Tex. Civ. App. 294, 85 S. W. 454), that a proceeding under tnis statute for a new trial by a defendant, served with process by publication, is not an independent suit in equity to set aside or review the judgment, but is a continuation of tbe suit in which the judgment complained of was rendered. This being true, it follows that an order either granting or refusing a new trial is interlocutory in nature, and not appealable. See Miles v. Dana, 13 Tex. Civ. App. 240, 36 S. W. 848, 851; Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662; Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S. W. 1114, 1116, 121 S. W. 561; Fred v. Fred, 58 Tex. Civ. App. 574, 126 S. W. 900, 901; Wiseman v. Cottingham, 107 Tex. 68, 71, 174 S. W. 281; Houston Oil Co. v. McCarthy (Tex. Com. App.) 245 S. W. 651.

Other questions raised are subsidiary, and for that reason will not be discussed.

Tbe appeal attempted was not authorized, being from tbe interlocutory order granting a new trial; hence we acquired no jurisdiction of tbe case other than to enter a dismissal.

Appeal dismissed.


author: CRITZ, J.

text:
    DAVIS, Federal Agent, v. PRESTON.
    Motion No. 9114; No. 687-4240.
    Commission of Appeals of Texas, Section A.
    Feb. 18, 1931.
    For former opinion, see 118 Tex. 303, 16 S. W.(2d) 117.
    Andrews, Streetman, Dogue & Mobley, of Houston, for plaintiff in error.
    McDonald & Wayman, of Galveston, and Cole, Cole, O’Connor & Jones, of Houston, for defendant in error.
   CRITZ, J.

The facts and circumstances involved in this motion are fully stated in an opinion by this section of the Commission rendered at the last term of the Supreme Court [118 Tex. 303, 16 S.W.(2d) 117] with reference to the above motion, and this opinion is here referred to and made a part hereof for a full statement of the matters involved.

The motion is filed by the defendant in error, and petitions the Supreme Court to recall its mandate heretofore issued in the name of James C. Davis, Federal Agent, and for the correction of the original judgment of the Supreme Court by the substitution of Andrew W. Mellon, Federal Agent, for and instead of James C. Davis. It is further prayed that as so corrected the mandate again issue in conformity with the corrected judgment. Andrew W. Mellon has appeared and contested the motion.

An examination of the records of the Supreme Court discloses that it has been its practice, under circumstances such as these, to grant the relief here prayed for. In the case of Payne v. Cummins, 243 S. W. 974, a similar motion was granted by this court and similar relief here prayed for awarded.

It appears that the mandate heretofore issued in the name of Davis has already been recalled at the last term of this court as recommended by the Commission in the opinion above mentioned, and this motion carried over by proper order of the Supreme Court, until this term.

We now recommend that the original judgment of the Supreme. Court be corrected by the substitution of Andrew W. Mellon, as Federal Agent, for and instead of John C. Davis, and that as so corrected mandate again issue.


text:
    FARRACY v. SECURITY NAT. BANK et al.
    Motions Nos. 196, 9182; No. 1191-5194.
    Commission of Appeals of Texas, Section A.
    Feb. 18, 1931.
    For original opinion, see 29 S.W.(2d) 1073.
    Davis, Synnott & Hatchell and John Davis, all of Dallas, for plaintiff in error.
    Touchstone, Wight, Gormley & Price and Allen Wight, all of Dallas, for defendants in error.
   CRITZ, J.

The above cause is now before the Commission on two motions filed by the'Security National Bank and the Southwest National Bank. Motion No. 196 is for permission to orally argue the motion for rehearing either before the Commission or the Supreme Court; and motion No. 9182 is for rehearing.

It is not the practice of the Commission to hear oral argument on motions for rehearing, except when invited.

We have read and carefully considered all of the questions presented in the motion for rehearing, and still adhere to the views expressed in our original opinion, and the judgment there recommended.

We therefore recommend that the motion to orally argue, and the motion for rehearing be both in all things overruled.