text:
    GULF, COLORADO & SANTA FE RAILWAY COMPANY, Relator, v. CITY OF BEAUMONT, Texas, et al., Respondents. George H. BLISS et al., Relators, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY et al., Respondents.
    Nos. A-9787, A-9788.
    Supreme Court of Texas.
    Jan. 8, 1964.
    No. A-9787:
    Chilton O’Brien, Beaumont, McLeod, Mills, Shirley & Alexander, Galveston, for relator.
    George E. Murphy, City Atty., Alvin E. Wiggins & Daylee Wiggins, John Rienstra, Beaumont, for respondents.

      No. A-9788:
    Alvin E. Wiggins and Daylee Wiggins, Beaumont, for relators
    Chilton O’Brien, George E. Murphy, City Atty., Beaumont, for respondents.
   STEAKLEY, Justice.

These are original proceedings for mandamus or prohibition. They are ancillary to the case of Gulf, Colorado & Santa Fe Railvray Company v. Bliss, 368 S.W. 2d 594, decided by this Court on May 8, 1963. On July 22, 1963, the trial court entered a judgment for the plaintiffs against Santa Fe and the City of Beaumont as joint tortfeasors in accordance with the judgment and mandate of this Court. Thereafter the City filed a Motion for New Trial seeking to set aside the judgment of the trial court and to obtain a new trial.

In the instant Cause No. A-9787, the Relator is Gulf, Colorado & Santa Fe Railway Company, and the Respondents are the City of Beaumont, together with the Judges and Clerk of the District Courts of Jefferson County, Texas. Relator seeks a declaration that the judgment entered by the trial court pursuant to our opinion, judgment and mandate is final and not subject to any form of attack or appeal by the City of Beaumont, and prays for appropriate extraordinary relief.

In the instant Cause No. A-9788 the Relators are George H. Bliss et al., the plaintiffs in the main suit, and the Respondents are Gulf, Colorado & Santa Fe Railway Company, together with the Judges and Clerk as in Cause No. A-9787. These Relators seek to enforce the judgment of the trial court against Santa Fe as a joint tortfeasor.

Reference to our opinion in Bliss will afford an understanding of the background to the problem now before us. In brief, ■ George H. Bliss et al. sued Santa Fe and the City of Beaumont for damages to their residential properties caused by flood waters. Santa Fe filed a cross action against the City by way of indemnity or contribution. After trial to a jury and return of its verdict (in which, as later noted, there were findings adverse to the City), the trial court entered judgment for the plaintiffs against Santa Fe, but denied any recovery against the City of Beaumont either for the plaintiffs or for Santa Fe on its cross action. Its motion for judgment on the verdict having been overruled, Santa Fe appealed without filing motion for new trial. The City of Beaumont, as appellee in the Court of Civil Appeals, urged three counter points to the appeal of Santa Fe, together with seven cross assignments of error. The Court of Civil Appeals affirmed the judgment of the trial court. 363 S.W.2d 343. Santa Fe filed application for writ of error, in reply to which the City urged substantially the same counter points and cross assignments of error theretofore presented to the Court of Civil Appeals. We granted the writ of error and by our opinion dated May 8, 1963 held that the trial court and the Court of Civil Appeals were in error in not entering judgment against Santa Fe and the City as joint tortfeasors entitled to contribution. The City filed motion for rehearing again urging its cross assignments of error which, asserted the City, were “properly brought forward by it in its brief filed in the Court of Civil Appeals and in its reply to Petitioner’s application for writ of error, which cross assignments of error, if sustained, would require an affirmance of the judgments of the Court of Civil Appeals and the trial court.” The motion for rehearing of the City was overruled, following which the mandate of this Court was issued requiring the entry by the trial court of a judgment in accordance with our judgment. As before noted, the trial court entered judgment pursuant thereto on July 22, 1963. Thereafter, on July 30, 1963, the City filed in the cause an instrument entitled “Motion of defendant City of Beaumont for new trial,” which was amended on August 15, 1963. The prayer of the City is that the motion for new trial be granted “and that the verdict of the jury heretofore returned herein and the judgment of the court thereon, dated July 22, 1963, be set aside and that this defendant be awarded a new trial.”

The City resists the extraordinary relief sought by the Santa Fe in the proceeding at bar on two basic grounds: First, that neither the Court of Civil Appeals nor this Court had jurisdiction to dispose of the cross assignments of error urged by the City; and, second, that neither the Court of Civil Appeals nor this Court “ever made any disposition of the City’s cross assignments of error, even though this omission on the part of this Honorable Court was clearly and specifically pointed out in the City’s motion for rehearing.” The jurisdictional argument of the City is that cross assignments of error by an appellee are permissible only when the trial court has rendered a judgment non ob-stante veredicto or notwithstanding the finding of the jury on one or more special issues; and that neither is the nature of the judgment of the trial court from which Santa Fe took its appeal. The City now says that under the provisions of Rule 324, Texas Rules of Civil Procedure, its cross points and cross assignments of error in the appeal by Santa Fe were not warranted or authorized, and consequently they were never disposed of by the Court of Civil Appeals or by this Court.

As referred to in bur opinion in Bliss, the jury found that the City caused to be collected upstream from the railway culvert a larger quantity of water than would have been collected by the natural lay of the land, and that such was negligence; also, that the City knew and Santa Fe did not know, and that the City failed to inform Santa Fe, that the quantity of water which would be collected following an intense and heavy rainfall would exceed the capacity of the railway culvert, and that such failure to so inform was negligence. We said in Bliss that “We agree with the Court of Civil Appeals that Santa Fe and the City were in pari delicto and equally blameworthy in causing the flooding of the plaintiffs’ homes.” We reversed the judgments of the trial court and the Court of Civil Appeals because these courts failed “to render judgment against both Gulf, Colorado & Santa Fe Railway and the City of Beaumont as joint tort-feasors.” The judgment of this Court recited that there was no error in the judgment of the Court of Civil Appeals which affirmed the judgment of the trial court for the plaintiffs except insofar as these judgments failed to render judgment against both Santa Fe and the City as joint tort-feasors; the cause was remanded to the trial court with instructions to enter judgment accordingly.

Our action in the above respects necessarily required disposition of the counter points and the cross assignments of error of the City. These cross assignments urged that there was no evidence to support the findings of the jury upon which liability of the City to the plaintiffs as a joint tort-feasor would necessarily have to be predicated. Our direction to the trial court to render judgment for the plaintiffs against both Santa Fe and the City was a determination that the judgment so ordered was supported by the evidence. As a matter of substance, the position of the City as appellee was within the reasonable intendments of Rule 324, T.R.C.P. It is true that in form the trial court overruled the motion of the City for judgment non obstante veredicto and for judgment disregarding certain findings of the jury. But the trial court in entering judgment for the City disregarded the findings of the jury which were the basis of our holding in Bliss that the City was equally culpable with Santa Fe. The City as ap-pellee urged grounds that would have vitiated the verdict insofar as it was concerned and would have prevented an af-firmance of the judgment had one been entered by the trial court against the City.

The City will not be heard to say, in the face of its former position, that this Court was without jurisdiction to dispose of its cross assignments of error. The further assertion by the City that we did not dispose of its cross assignments is refuted by our action in directing the trial court to render judgment for the plaintiffs against Santa Fe and the City as joint tortfeasors. The City invoked the jurisdiction of the Court of Civil Appeals and of this Court to sustain its counter points and cross assignments of error which- would have relieved the City of liability both as to the plaintiffs and as to Santa Fe, notwithstanding the findings of the jury adverse to the City. Having been unsuccessful in this, the City is now attempting by its motion for new trial in the trial court to re-litigate the questions of its liability to Santa Fe and to the plaintiffs, and thus interfere with the judgment and mandate of this Court. This the City may not properly do. Our judgment in Bliss settled the disputes between the parties and is final, conclusive and binding. It implied the decision that this Court had jurisdiction of what was adjudged. Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656. The Relators are entitled to prompt execution of the judgment entered by the trial court pursuant to the mandate of this Court. Conley v. Anderson, Tex.Sup., 164 S.W. 985. This Court has jurisdiction to issue such writs as may be necessary to enforce its judgments. Sparenberg v. Lattimore, 134 Tex. 671, 139 S.W.2d 77; cf. City of Dallas v. Dixon, Tex., 365 S.W.2d 919.

We are certain that the City of Beaumont and all other Respondents in the two causes will honor this opinion without the necessity of further action by this Court; if not promptly so done, all proper and necessary writs will issue.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Homer D. GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 36277.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    Rehearing Denied Jan. 22,1964.
    No attorney on appeal for appellant.
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Attempt to commit burglary is the offense ; the punishment, two years.

The state’s evidence shows that on the night in question city officers Gonzales and Meadows were on routine patrol duty in the city of McAllen. While traveling east in their patrol car on Austin Avenue, Officer Gonzales, with the aid of a spotlight, saw a man in an alley a block and a half away, standing by a large dumpster (a metal trash container). They then proceeded into the alley and stopped behind a store building in which John Womeldorf conducted a sporting goods business. The dumpster near where the man was standing was across the twenty-foot alley to the rear of the building. Upon investigation, the officers found that an attempt had been made to enter the building by prying on both back doors and the shutters which overlapped a window in which a fan was located. Some pieces of wood had been broken off both doors and two locks had been pried off the overlapping shutters. Two of the fan blades were pushed in. In the further investigation which ensued, two different sets of shoe prints were found near a rear door and window of the building. Two tire tools were also found behind the building, one being under the window. While Officers Gonzales and Meadows were behind the building, Officer Ramirez, who was on patrol in the vicinity, saw an automobile being driven off a J. C. Penney parking lot some three-fourths block from Womeldorf’s store. The automobile was driven to an alley and stopped. Officer Ramirez then observed two men run out of the alley and get in the automobile. The car was then driven away and after pursuing it for eight blocks, the officer brought it to a halt. Appellant at such time was riding in the right front seat, one Chavez was driving, and a man by the name of Medellin was riding in the back.

After the arrest, it was found that the shoes of appellant and Medellin fit exactly the shoe tracks found under the window behind the building. It was also ascertained that the tire tool found under the window behind the building fit the lug bolts on the automobile in which appellant was riding. A search of the automobile, after appellant’s arrest, revealed that it had no tire tools in it.

It was also shown that all doors and windows to the building had been locked by the store owner, Womeldorf, when he closed the business on the evening before the attempted burglary and that he had not given appellant, or anyone, permission to enter the building.

Appellant did not testify or offer any evidence in his behalf.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence.

The record contains no formal bills of exception or objections to the court’s charge.

The informal bills of exception appearing in the statement of facts have been considered, and do not present error.

We find the evidence sufficient to sustain the judgment of conviction.

The evidence shows an attempted burglary of the building in question. The proof of appellant’s flight and proof that his shoes and those of his companion, Medellin, fit exactly the tracks found under the window at the scene, together with the other facts and circumstances, is sufficient to support his conviction. See: Tracy v. State, 111 Tex.Cr.R. 160, 12 S.W.2d 205; Taylor v. State, Tex.Cr.App., 233 S.W.2d 306; Bouchillon v. State, 160 Tex.Cr.R. 79, 267 S.W.2d 554; Freyre v. State, 163 Tex.Cr.R. 315, 291 S.W.2d 321; and Hanes v. State, Tex.Cr.App., 341 S.W.2d 428, in support of the conclusion reached here.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge

text:
    Elmer BYRD, Appellant, v. The STATE of Texas, Appellee.
    No. 36342.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1964.

      Sidney Callender, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge

The offense is burglary with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

Appellant was seen by Officer Edmondson as he left a bar which had been burglarized and he was finally apprehended some distance away by the said officer, following a chase in which appellant was shot three times. He had in his possession a money box which had been taken from the music machine in the bar.

The prior convictions were established.

Appellant testifying in his own behalf admitted having the money box in his possession on the night in question, but stated that he had taken it from one Williams, who had confessed to him that he had broken into the bar in question, and that he (appellant) was in the act of returning it to its rightful owner when someone shone a light into the bar, at which time he panicked and ran with the money box rather than setting it down in the bar.

The jury resolved the conflict in the evidence against appellant, and we find the evidence sufficient to support the conviction. '

Court appointed attorneys have raised two questions on this appeal. One of the prior convictions alleged in the indictment for enhancement was numbered 56,445. The proof showed it to be Cause # 56,445. When the court referred to such conviction in his charge, to which there was no objection, he referred to the cause as # 46,445. It is appellant’s contention that this constitutes a fatal variance. We do not agree: As stated, the allegation and the proof correspond. Having failed to object to the charge, appellant waived any error therein. Redding v. State, 166 Tex.Cr.R. 517, 316 S.W.2d 724; Redman v. State, 162 Tex.Cr.R. 524, 287 S.W.2d 676; Lopez v. State, 162 Tex.Cr.R. 533, 287 S.W.2d 946; Marr v. State, 160 Tex.Cr.R. 216, 268 S.W.2d 150; and Jackson v. State, Tex.Cr.App., 80 S.W. 83. This is not a fundamental defect, as all the other particulars concerning the prior conviction correspond minutely.

Appellant’s remaining complaint concerning the taking of the indictment into the jury room during the deliberation does not constitute reversible error. In Lindsey v. State, 108 Tex.Cr.R. 187, 299 S. W. 399, 400, this Court said: “The indictment is ordinarily read to the jury, the accused pleads thereto, and the indictment is taken into the jury room upon retirement. We think such practice is entirely proper.”

Finding no reversible error, the judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Robert Lee CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 36028.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    Rehearing Denied Jan. 8, 1964.
    Ronald Aultman (on appeal only), Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Gordon Gray, Asst. Dist. Atty., Fort Worth, and Leon.,B: Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with two prior felony convictions alleged for enhancement; the punishment, life.

Reverend Grubbs, pastor of the Evans Avenue Baptist Church in Fort Worth, testified that when he arrived at the church on Monday morning, he found that a window had been pried open, one safe badly damaged and another smaller safe missing. He identified the smaller safe, later recovered by the officers, as being the one taken from his church.

Officer Hawkins testified that sometime later he talked to appellant, who was then in custody, and as a result of such conversation, he recovered the safe in question from the Trinity River, near the Randol Mill Road.

Officer Lynn testified that he talked to appellant while in jail and secured from him a voluntary written confession which was introduced in evidence and which recited that appellant entered the Evans Avenue Baptist Church through a back window, took a safe which he carried north of the Randol Mill Road at the Trinity River, where he opened it and after removing the money therefrom, threw it off the bridge.

The prior convictions were established in the manner approved by this Court in Reyes v. State, Tex.Cr.App., 353 S.W.2d 450, and appellant did not testify or introduce any evidence in his own behalf.

We shall discuss the contentions advanced by court appointed counsel on appeal by brief and in argument. He contends that the court erred in overruling his motion for mistrial when Officer Lynn, in stating his reason for being present at Captain Brown’s office at police headquarters on a day in question when he saw appellant, said that he had been sent there to “question these subjects about some burglaries in the southeast part of the county.” Appellant’s objection that the answer was unresponsive was sustained. No motion or request to have the answer stricken or the jury instructed to disregard it was made. We have concluded that the answer was not of such a prejudicial nature that an instruction from the court to the jury to disregard it could not have cured the claimed error. Bolick v. State, 165 Tex.Cr.R. 493, 309 S.W.2d 74, and the cases there cited. It should be borne in mind that the answer set forth above does not constitute a direct averment that appellant had committed the other burglaries mentioned.

He contends that error was committed when the following occurred. Probation Officer Walley testified for the State that he was present when probation was granted appellant in the first felony case alleged for enhancement. He was asked if he later saw appellant back in court on October 23. An objection was interposed that the question was leading, and Walley was then asked if he had later seen appellant in court. To this he replied, “Yes. He was picked up and charged with a misdemeanor and found guilty of that on September 28.” Appellant’s objection was sustained and the jury was instructed not to consider the answer. The next question by the State elicited the reply that he saw appellant in court on October 23, at which time the State’s motion to revoke probation was granted. The judgment revoking probation found in the record reflects that it was entered on October 23. In view of the oral and written confessions, the proof of the two prior felony convictions, plus the fact that the answer was unresponsive, we are unable to bring ourselves to conclude that proof of an extraneous misdemeanor, though improper, should call for a reversal of this conviction.

Finding the evidence sufficient to support the conviction and no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant’s motion for rehearing presents as the question to be decided: “Should State be permitted to offer evidence of extraneous offense in habitual case ?”

The trial judge correctly answered this question in the negative when he sustained appellant’s objection and instructed the jury not to consider such evidence.

We gave a similar answer in our opinion on original submission by our holding that proof of the extraneous offense was improper. See also Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623.

It does not follow that such evidence coming before the jury in the manner stated in our original opinion and promptly withdrawn from the jury’s consideration by the court required that the appellant’s motion for mistrial be granted, or that such improper evidence calls for reversal of the conviction.

We direct attention to the fact that the jury did not assess the punishment of life imprisonment against the appellant, hence the improper evidence cannot be said to have influenced the jury in regard to punishment.

The punishment being definitely fixed by Art. 63 P.C., there remains only the question of whether the improper evidence, promptly withdrawn, may have influenced the jury in finding the appellant guilty of the burglary for which he was on trial.

In view of the record, the contention that it did would not be tenable.

Appellant’s motion for rehearing is overruled.


text:
    Robert Lee CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 36029.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    Rehearing Denied Jan. 8, 1964.
    Ronald Aultman (on appeal only), Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Gordon Gray, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of narcotic drugs; the punishment, seven years.

Police officers of the city of Fort Worth and State Narcotic Agents armed with a search warrant, searched appellant’s apartment and there found three bottles which contained a total of 294 tablets which were shown by the testimony of a chemist to be morphine or dihydromorphinone, a derivative of morphine. Appellant was arrested when he entered the apartment by means of a key. His landlady testified that she had rented the apartment to appellant and had seen him coming and going therefrom.

Appellant did not testify or offer any evidence in his own behalf.

We shall discuss the contentions advanced by court appointed counsel in his brief and argument. He objected to the introduction of the fruits of the search because of the failure of the officers to comply with the terms of Art. 725-b, Sec. 16, Vernon’s Ann.P.C., in that they did not swear to their return on the search warrant which they made, failed to take appellant before the magistrate who issued the warrant for a hearing, and failed to carry the property seized before such magistrate.

In Garcia v. State, 164 Tex.Cr.R. 273, 298 S.W.2d 831, this Court disposed of a similar contention and cited Boyer v. State, 128 Tex.Cr.R. 76, 79 S.W.2d 318, which in turn relied upon Cornelius on Search and Seizure and held that a failure to follow the terms of the statute as to what should be done by the officers after the search had been made did not constitute reversible error.

The same rule applies where the search is made without a warrant. Jenkins v. State, Tex.Cr.App., 367 S.W.2d 343, Dennis v. State, 108 Tex.Cr.R. 672, 2 S.W.2d 223, Burns v. State, 99 Tex.Cr.R. 252, 268 S.W. 950, and Austin v. State, 97 Tex.Cr.R. 360, 261 S.W. 1035.

By bill of exception number two, complaint is made as to the answer of Officer Johnson in response to a question propounded by defense counsel which elicited information concerning extraneous offenses. The answer was clearly responsive and since appellant asked the same, he cannot be heard to complain as to the answer. Avant v. State, 168 Tex.Cr.R. 6, 323 S.W.2d 464 and Pettigrew v. State, 163 Tex.Cr.R. 194, 289 S.W.2d 935.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The answer of Officer Johnson to the question of what was taken as a result of the search of appellant’s apartment other than the items that were in evidence was: “Some property that Mr. Campbell told us was stolen property.”

The court promptly sustained the objection to the answer of the witness as not being responsive to the question and instructed the jury not to consider the last portion “because it was not responsive, and objected to and inadmissible,” but he overruled appellant’s motion for mistrial.

It is apparent from the record that the answer of the witness was that to be expected by appellant’s trial counsel. In the absence of the jury counsel had inquired of Officer Johnson as to what he did about listing what he took in the return on the search warrant, and the witness had replied: “We took two radios and a small record player that Robert Campbell said was stolen.”

Thereafter, in the jury’s presence, he made a similar inquiry and received the answer: “Some property that Mr. Campbell told us was stolen property.”

That the same property was referred to is evident from the continuation of the cross-examination of Officer Johnson after the court’s ruling on this answer.

“Q. The Court allowed to stand the part where you said ‘two radios’, was there anything else that you said?
“A. And a small portable record player.”

Further cross-examination elicited that the two radios and the record player taken in the search were not listed in the return on the search warrant.

We remain convinced that the complained of evidence elicited by appellant and promptly withdrawn from the jury’s consideration does not warrant reversal.

Appellant’s motion for rehearing is overruled.


text:
    Ex parte James S. BROWDER.
    No. 36126.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    Rehearing Denied Jan. 22, 1964.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F, Dally and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Alaska to answer a charge of grand larceny.

At the hearing, the state introduced in evidence the executive warrant issued by the governor of this state directing the arrest of appellant and his delivery to the agent of the State of Alaska for return to that state. The sheriff’s return on the writ of habeas corpus, showing that appellant was being held under the governor’s warrant, was also introduced in evidence by the state.

The executive warrant, being regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Emmons, 167 Tex.Cr.R. 544, 322 S.W.2d 534; Ex parte Brito, 172 Tex.Cr.R. 409, 358 S.W.2d 122.

Appellant introduced into evidence the requisition of the Governor of the State of Alaska and the supporting papers attached thereto, which included the applicable statute of the State of Alaska under which appellant was charged, the indictment charging him with the crime, and the warrant for his arrest.

No brief has been filed on behalf of appellant on this appeal.

At the habeas corpus hearing, appellant insisted that he should not be remanded to custody because the indictment upon which the requisition was based was void. It was contended that the indictment against him was void because it was not specific and definite enough for him to prepare his case for trial and that he would not be in a position to plead the indictment as a bar to further prosecution.

Art. 1008a, Sec. 3, Vernon’s Ann.C.C.P., provides that the indictment, information, or affidavit accompanying a demand for extradition must “substantially charge the person demanded with having committed a crime under the law of that state.”

In construing this provision of the statute, it has been the holding of this court that unless the indictment, information, or affidavit is void, its validity will be left to the courts of the demanding state; that this state is not concerned with the sufficiency of the indictment or affidavit as a criminal pleading; and the question of its sufficiency for that purpose will be left to the demanding state. Ex parte Gore, 162 Tex.Cr.R. 128, 283 S.W.2d 69; Ex parte Gesek, 302 S.W.2d 417; and Ex parte Strom, 168 Tex.Cr.R. 130, 324 S.W.2d 224.

The indictment found in the extradition papers charging appellant with the crime is in two counts. Count 1 charges substantially as follows:

“That on or about the 12th day of May, 1961, at or near Anchorage, Third Judicial District, State of Alaska, James S. Browder did wilfully, unlawfully and feloniously take, steal and carry away with intent to permanently deprive the owner thereof, property of value, to-wit: the sum of Five Hundred Ninety-One and 90/100 Dollars ($591.90), lawful money of the United States of America, being the property of the .American Bankers Mortgage and Loan Corporation, through the instrumentality of a check as follows, to-wit:
“ 1 * * * [the check is set out herein haec verba]’ ”
“All of which is contrary to and in violation of Section 65-5-41 ACLA 1949 Cum.Supp., and against the peace and dignity of the State of Alaska.”

The second count of the indictment charges, in substantially the same language, the taking of one thousand five hundred one dollars ($1,501) dollars in money.

The indictment, drawn under Sec. 65-5-41 of the Alaskan statute — which we do not deem necessary to set out in this opinion — substantially charged appellant with a crime under the laws of that State and was sufficient' upon which to base the demand for extradition.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Eriverto BALTAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 35994.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    Rehearing Denied Jan. 22, 1964.
    Frank Y. Hill, Jr., San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Jerry P. Heltzel and M. C. Gonzales, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault; the punishment, 10 years.

The sole defense was that of insanity, and the sole question presented is that of jury misconduct. Attached to appellant’s amended motion for new trial, we find the affidavits of three of the jurors. Juror Arzola swore that during their deliberations someone stated “that there was a psychiatric ward at the Huntsville State Prison where the defendant would go if we found him sane at the time of the trial and assessed a punishment.”

Juror Alderete swore that someone “made the remark that there was a psychiatric ward at Huntsville where he would go if we found him sane at the time of the trial and where he would receive psychiatric help.”

The State filed a controverting affidavit and attached thereto the affidavits of three of the jurors, but we have examined them with care and fail to find that any of them denied that the above quoted statements were made.

There was therefore no issue for the trial court’s determination. Rogers v. State, 158 Tex.Cr.R. 8, 252 S.W.2d 465.

, The State’s attack on the motion because it was not sworn to by appellant’s counsel cannot be sustained. Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748.

At the hearing on the motion for new trial, the court asked counsel if he was offering the affidavit attached to the motion, and counsel replied in the affirmative.

We must now determine if the above quoted statements constitute reversible error. The test is whether or not the statement is untrue and harmful to accused. Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663.

It is obvious that if the jury found appellant sane he would not go to a psychiatric ward at the State Penitentiary. This would occur only if the prison authorities became convinced that he had become insane after he arrived at the prison. Art. 932-1 Sec. 11, V.A.C.C.P.

Because of the jury misconduct pointed out, the judgment is reversed and the cause is remanded.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Benny CASTELLO, Appellant, v. The STATE of Texas, Appellee.
    No. 36345.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1964.
    E. A. Blair, Lubbock, for appellant.
    George H. Hansard, Lamesa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is rape; the punishment, thirty years confinement in the State Penitentiary.

While the sufficiency of the facts is not challenged, yet this Court is obligated to test and determine their sufficiency, which we have done. Stated briefly, the appellant, after consuming a quantity of intoxicating beverages, walked from his motel room to a nearby residence where the complaining witness was asleep. The appellant broke into the kitchen door of the residence and raped the complaining witness, a 73 year old blind woman, by force. After the act was completed appellant returned to his motel room. The prosecutrix then called the officers, who responded within a few minutes to her call. The officers found footsteps in the sand, made by tennis shoes, leading from the residence where the assault occurred to the motel room occupied by appellant. The officers entered appellant’s room with his consent and found a pair of tennis shoes under his blue jeans. The officers made a plaster cast of the foot prints and they matched the tennis shoes. Appellant made a voluntary written statement in which he admitted breaking the lock on the door and entering and having intercourse with a woman there. We find the evidence sufficient to sustain the jury’s verdict

Appellant urges one proposition as grounds for reversal. It it his contention that the trial court erred in refusing to grant him a preliminary trial on the issue of his present sanity before the main trial of the case on the issue of guilt. Appellant supported his request by affidavit and motion. The trial court overruled the motion, being of the opinion that same was not timely made. Appellant has brought his contention forward by a formal bill of exception, which contains all of the pertinent facts. Briefly stated, the facts are that this case, along with others, was called at about 10:00 A.M. on June 10, 1963. The State announced ready for trial, the defendant made no announcement, but presented a written motion for continuance, which was overruled by the Court at about 11:00 A.M. Immediately thereafter, the Court requested the sheriff to summons 26 additional jurors to be in Court at 1:00 P.M. on that day and instructed the members of the jury panel then present in court to report back at 1:00 P.M. At 12:45 P.M. the appellant and his attorney were present in the Courtroom and the judge came in and the appellant’s attorney presented an “Affidavit of Insanity” to the Court with a written request that a trial be had on the issue of appellant's sanity alone and before the trial of the case on the main charge. The Court overruled the motion and the appellant objected and excepted to the Court’s action.

While the bill of exception does reflect that the appellant had not formally announced ready prior to presenting his affidavit and motion for a preliminary trial on the sanity issue, the record does reflect that appellant did present his motion for continuance, which was overruled an hour and forty-five minutes before appellant took any action whatever in requesting the preliminary trial. It is true that the trial judge did not inquire of appellant’s counsel if he had any other matters to present after the motion for continuance was disposed of. Also, we find that appellant’s counsel sat silently by and listened to the Court instruct the sheriff to summons 26 additional jurors and instruct the panel to be back at 1:00 P.M. for trial of this cause and said nothing to the Court about presenting any further motions. We think that appellant’s silence amounted to consent and his tacit approval of the Court’s action recessing the trial upon the main charge until 1:00 P.M. We find no good and sufficient reasons assigned as to why the request was not made immediately after the Court’s action in overruling appellant’s motion for a continuance. We recognize the settled law in this state to be that when a person is charged with an offense and files an affidavit of present insanity, accompanied by a request for a separate trial on that issue, he is •entitled to it. But this must be done at a proper time, either prior to an announcement of ready or at that stage of the trial proceedings where it is incumbent upon the appellant to either go forward with the trial, or take some positive steps to direct the Court’s attention to his desire to present an additional motion or motions. After the ■motion for continuance was heard and disposed of there was nothing further before the Court for its consideration. The Court was then at that juncture of the proceedings where the trial was to either move forward, or the Court could hear and pass •on other motions presented to it. It is at this very juncture that we think appellant should have acted. By his silence, which he elected to maintain, he gave tacit approval of the Court’s action. We think the ■case was on trial the same as though he had announced ready and that his request was not timely made.

Finding no reversible error in the action •of the trial court, the judgment is affirmed.

WOODLEY, Presiding Judge

(concurring) .

I concur in the holding that the request for a preliminary trial on the issue of •sanity was not timely made.

I would further point out that the affi•davit incorporated in the request for a trial on the issue of sanity states only that the defendant “is a person of unsound mind at this time and was a person of unsound mind at the time of the commission of the •offense charged against him,” and there was ■no allegation or averment that he was by reason of insanity rendered incompetent to make a rational defense to the charge against him.

Jurisdiction of a trial court to grant a preliminary trial on the issue of insanity can he invoked by or on behalf of a defendant •only by a motion or request therefor “based upon allegations that because of present insanity the defendant was unable to prepare a rational defense to the main charge.” State v. Olsen, District Judge, (Tex.Sup.Ct.) 360 S.W.2d 398.


author: McDonald, judge. MORRISON, Judge.

text:
    Cleveland KIRKLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 35153.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.
    Rehearing Denied March 27, 1963.
    Second Rehearing Denied April 24, 1963.

      Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the unlawful sale of a narcotic drug; the punishment, five years in the penitentiary.

The state’s evidence reflects that appellant was the owner of a drugstore in Houston and that, in one transaction, he sold to Officer Pollock, an undercover agent of the Houston police department, from the back door of his establishment, five four-ounce bottles of paregoric. There was no prescription for the preparation, and the officer was not required to sign any register. The bottles were unlabeled.

Appellant took the stand and denied the entire transaction.

The first proposition to be considered is appellant’s contention that there is a variance between the pleadings in the indictment and the proof. The indictment charged the unlawful sale of a narcotic drug, “to-wit, a preparation of opium commonly known as paregoric.”

Appellant asserts that the proof shows that the narcotic content of paregoric is morphine, not opium, and thus that there is a fatal variance. Without extensive reference to the testimony, suffice it to say that there was evidence that paregoric was a preparation of “opium,” or “morphine,” and was “an opiate.”

Assuming, without conceding, appellant’s assertion to be correct that morphine is the narcotic ingredient of paregoric, we still must reject his contention. Art. 725b, Sec. 1(12), V.A.P.C., defines opium as including “morphine, codein, and heroin, and any compound, manufacture, salt, derivative, mixture or preparation of opium, but does not include apomorphine, or any of its salts.” (Emphasis, added.)

Thus, while the proof may have shown the paregoric to have contained morphine, this is not a variance from the allegation of a “preparation of opium,” Sec. 1(12), Art. 725b, and the necessity for specifically informing the accused of the nature of the accusation, as set out in Baker v. State, 123 Tex.Cr.R. 212, 58 S.W.2d 535, is adequately met by the phrase, “commonly known as paregoric.” See: Criswell v. State, Tex.Cr.App., 346 S.W.2d 341.

Appellant next contends that the indictment fails to charge him with an offense, because paregoric is an exempt drug. In support of this proposition he cites Sec. 9 (1) of Art. 725b, V.A.P.C., and 26 U.S.C.A. § 4702.

Sec. 9(1) contains the following proviso:

“Provided further, that any person may purchase at any time one (1) ounce of paregoric without a doctor’s prescription.”

The answer to this contention lies in the section of our statute relied upon. When the legislature specifically names one commodity and prescribes rules for its dispensing, then the remainder of the statute may be disregarded because the legislature has made its intention clear as to the named commodity.

The failure to allege that appellant sold more than one ounce is not fatal. Such is a defensive matter and is not required to be alleged. Browning v. State, 161 Tex.Cr.R. 276, 276 S.W.2d 552. Nor is it required that the exceptions provided by the statute be negatived. Sec. 21, Art. 725b, V.A.P.C.; Torres v. State, 161 Tex.Cr.R. 480, 278 S. W.2d 853; Manson v. State, 166 Tex.Cr.R. 514, 316 S.W.2d 414; Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757.

Appellant's next contention is that 26 U.S.C.A. § 4702, is incorporated into Texas law. In light of the 1960 amendment (apparently overlooked by him) of that article, we fail to see how it could benefit his case. The record does not reveal how the federal! exemptions are to apply.

If it is appellant’s contention that paregoric is an “opiate” within the provisions of Sec. 1(14), Art. 725b, we point out that such provision clearly refers to the more restricted definition of “opiate” found in Webster’s Third New International Dictionary (G. & C. Merriam Co., Springfield, Mass., 1961):

“ * * * 2: a synthetic drug capable of producing or sustaining addiction similar to that characteristic of morphine and cocaine: Narcotic—used esp. in modern law * * (Emphasis, added.)

See: Commissioner’s Comment, Uniform Narcotics Act, Sec. 1, 9B ULA, p. 282, 26 U.S.C.A. § 4731(g).

Thus the word “opiate,” as used in the statute, is not meant to apply to preparations “containing or mixed or impregnated' with opium,” Webster’s Third New International Dictionary, supra, but to synthetic preparations having characteristics similar to those of morphine or cocaine.

Appellant next contends that the evidence-is not sufficient to support the conviction.

Sec. 2(a), Art. 725b, V.A.P.C., makes it unlawful for a person to sell or dispense any narcotic drug; Sec. 2A adds that it shall' be lawful where so authorized by the terms •of the act. Sec. 6(1) allows an apothecary '“in good faith” to “sell and dispense narcotic drugs to any person upon written prescription, or an oral prescription *

The evidence clearly shows a sale 'by the appellant of more than one ounce of paregoric to Officer Pollock, without a prescription.

The appellant insists that the court erred in not instructing the jury on the penalty for “dispensing any drug at re-tail,” under Art. 758, V.A.P.C. However, lie fails to recognize that “a person may be held to answer for any offense, great or small, which can be legally carved out of -the transaction.” 16 Tex.Jur.2d, Criminal Law, Sec. 24; 1 Branch’s Ann.P.C.2d Ed. 625, Sec. 654; Lewis v. State, Tex.Cr.App., 346 S.W.2d 608.

Appellant’s contentions are without merit.

Finding the evidence sufficient and no reversible error appearing, the judgment is .affirmed.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant states that we did not, in the light of what we said in Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397, properly • dispose of his objection to the failure of the •court to give the jury in his charge an op-portunity to find appellant guilty of a viola-tion of Article 758, V.A.P.C. In Venzor, -we said:

“Appellant was admittedly a practicing physician, licensed as such by the Board of Medical Examiners of this State. He was therefore admittedly a practitioner, as that term is used in the statute. Yet the jury was not so instructed, nor was the term practitioner defined in the charge.”

The effect of the above statement -was that Venzor being a licensed physician was entitled to the affirmative defense which was specifically enumerated in Article 726c, V.A.P.C., relating to the dispensing of barbiturates (but which has since been repealed), and such defense should have been submitted to the jury. However, in the case at bar, no affirmative defense is presented, and appellant is not entitled to a charge under Article 758, supra, because he was charged with selling a narcotic drug under Article 725b, V.A.P.C., and not a barbiturate under Article 726d, V.A.P.C. (dangerous drugs). The provisions of Article 758 do not apply to narcotics but do apply, among other things, to dangerous drugs.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.


author: SELLERS, Justice.

text:
    Herman GOLDFADEN, Appellant, v. David W. REUBEN, Appellee.
    No. 9.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 19, 1963.

      Don M. Wilson, Dallas, for appellant.
    Elihu E. Berwald, Rosenfield, Berwald & Mittenthal Dallas, for appellee.
   SELLERS, Justice.

Appellee concedes that the statement of the nature of the case as contained in appellant’s brief is substantially correct, and for that reason we quote the same:

“Suit filed by Herman Goldfaden, appellant herein, as plaintiff, against David W. Reuben, appellee herein, as defendant, alleging breach of contract of sale entered into between the parties providing for the sale of a certain business known as the Casa View Sparkle Launderette, and alleging that subsequently in violation of said contract entered the premises of the said business and removed a stock of clothing which had been left with the business prior to the sale for cleaning, and that it was necessary that the owners of the clothing obtain same from defendant; plaintiff alleged that he suffered immediate monetary damage based upon the collection by defendant of the cleaning charges, and further damage from loss of good will resulting from defendant’s actions. Further damages were alleged resulting from the apparent repossession by a third party of a marking machine which plaintiff alleged was represented by defendant to be transferred as part of the equipment of the business, and to be unencumbered. Defendant admitted execution of the contract, but denied all other allegations, and filed a cross-action based upon alleged slanderous statements made by appellant herein, which cross-action is still pending, and is not the subject of this appeal. Subsequently, appellee herein filed a motion for summary judgment based upon the premise that the stock of clothing alleged to have been taken by appellee was not, as a matter of law, transferred to appellant under the contract referred to. Upon hearing on said motion, the trial court entered an order-sustaining appellee’s motion, and directing that plaintiff, appellant herein,, recover nothing of defendant, appellee-herein. Defendant had meanwhile filed a second motion for summary judgment, reciting the same purported legal, premise as to transfer of the stock, and requested judgment in the amount of' $1,000.00, plus interest, alleged to beheld in escrow. This motion was also-granted, and judgment accordingly entered by the court. Both orders were-duly excepted to in open court, and appeal announced to this honorable-court.”

The $1,000.00 escrow funds got into the-case by the original answer of the defendant, Hugh L. Kirkpatrick, who filed his. original answer to pleadings in the cause filed by both plaintiff and defendant. This, defendant received the $1,000.00 which he held under an escrow agreement signed by both plaintiff and defendant in this cause- and placed with Hugh L. Kirkpatrick, the-escrow money being in the form of a bank money order. The Defendant Kirkpatrick makes no claim to said $1,000.00, and among other things, pleads as follows in paragraph, 4 of his answer:

“This Defendant claims no interest in said money but is now, and has been at all times, ready and willing to do-equity and discharge his obligation under the terms of the escrow agreement. HOWEVER, by reason of conflicting, inconsistent claims between the parties hereto, and by reason thereof, he has been compelled to employ the undersigned attorneys to answer the action brought against him, and has been compelled to incur expenses through no--fault of his own. This Defendant did not cause nor contribute to the controversy and inconsistent claims between Plaintiff Goldfaden and Cross-Plaintiff Reuben, and the dispute between such claimants is not due to any action •or omission on this Defendant’s part. Therefore, Defendant is entitled to recover of and from the parties hereto his reasonable attorney’s fees in the amount of $50.00 and all reasonable •costs and expenses which this Defend•ant has been and will be compelled to pay in the trial of this suit.
“This Defendant here now tenders ■into the registry of this Court the above ■described Bank Money Order in the ■sum of $1,000.00.
“WHEREFORE, premises considered, this Defendant prays that the Court •adjudge and determine the true and rightful owner of East Dallas Bank & Trust Company Bank Money Order No. 8713; that this Defendant be dis■charged from any and all liability of every kind and character upon distribution of said fund being made by decree •of this Court; that he be allowed his ■reasonable attorney’s fees in the •amount of $50.00 and all expenses in■curred herein; and for such other and .further relief of any nature whatsoever to which this Defendant may be ■entitled.”

As will be noted from the statement by Appellant, the trial court entered two summary judgments in favor of the defendant in the original suit. The first of these summary judgments was in response to the application by the Defendant David W. Reuben. It is dated the 8th day of February, 1963, and was in effect a judgment according to the statement of the nature of •the case above referred to. Upon the premises that the stock of clothing alleged to have been taken by the appellee was not as a matter of law transferred to appellee under the contract referred to. This summary judgment made no reference to the $1,000.00 escrow money nor does it dispose of the Defendant Kirkpatrick or his claim for $50.00 as attorney’s fees; nor did it refer to the cause of action by the plaintiff against defendant for the value of the marking machine alleged to be of the value of $187.50.

Thereafter, on the 20th day of February, 1963, the court entered another order granting to the appellee, defendant in the trial court, the $1,000.00 escrow money above referred to. This summary judgment makes no reference to Kirkpatrick, nor his attorney’s fees, nor does it refer to the suit by the plaintiff against the defendant for the damages already disposed of in the first summary judgment.

Both summary judgments were excepted to by the defendant and notice of appeal given to the court of civil appeals. Appeal bond was duly filed and the matter is here before this court for consideration. There was a cross action filed by the defendant against the plaintiff for the damages which was by the trial court severed out of this suit and is no part of this appeal.

At the outset this court is confronted with the question of whether there is a final judgment in this cause from which to appeal will lie to this court. The first summary judgment certainly did not dispose of all of the parties to the suit nor to all the issues involved in this suit, and for that reason must be held to be an interlocutory order from which no appeal will lie, for it does not dispose of all the parties and issues in the suit.

If we are right in our interpretations of the two summary judgments, there can be no doubt with respect to the law governing the situation, and we think this case is controlled by the case of Pan American Petroleum Corporation, et al., Petitioners, v. Texas Pacific Coal & Oil Company, et al., Respondents, Tex.Civ.App., 324 S.W.2d 200:

“In our opinion a summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court.”

In this case, as we view it, the defendant has undertaken to appeal from two separate judgments in the trial court, neither of which dispose of all of the issues and parties in the suit.

Since there is no final judgment entered in this case bjr the trial court, we dismiss this appeal without prejudice to the parties entering a final judgment from which an appeal might be perfected.


author: DIXON, Chief Justice.

text:
    William H. SMITH et ux., Appellants, v. Robert H. BARNETT, Appellee.
    No. 16259.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 13, 1963.

      Biggers, Baker, Lloyd & Carver and Monty C. Barber, Dallas, for appellants.
    Frank G. Newman and Gerald C. Galbraith, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Robert H. Barnett, a building contractor, sued appellants William H. Smith and wife to enforce an arbitration award of $33,157.00; and in the alternative, should the award be held to be invalid, for judgment for $36,166.69, the latter figure being the total cost of the construction of a house, including $32,150.00, the contract price, and $4,016.69 for extras.

In addition to their answer appellants filed a cross-action for $15,000.00 for damages for defects in material and workmanship in the construction of the house.

The trial court rendered summary judgment in favor of appellee, sustaining the arbitration award in the amount of $33,-157.00.

THE CONSTRUCTION CONTRACT

On August 5, 1961 the parties entered into a written contract for the construction by appellee of a house for appellants on premises now known as 4707 Crooked Lane in the City of Dallas, Texas.

Appellants had been unsuccessful in their efforts to buy a house located at 4623 Alien-crest Street. Upon investigation they found that this house had been constructed by appellee. So they employed appellee to build a similar house for them at 4707 Crooked Lane. The contract with blank spaces filled in by typewriter was prepared on a printed form issued by The American Institute of Architects known as “AIA Short Form for Small Construction Contracts.”

In two separate places the contract provides that the house shall be a duplication of 4623 Allencrest with additions and exceptions as noted. In one place the phrase “exact duplication” is used. The contract provides further that “both workmanship and materials shall be of good quality” and “All workmen and sub-contractors shall be skilled in their trades.”

THE ARBITRATION AGREEMENT

Appellants moved into their new house before construction was completed. A controversy arose. To settle their controversy the parties entered into a written arbitration agreement. The arbitrators selected were Thomas L. Magner, a building contractor, and La Vere Brooks, an architect.

The arbitration agreement conferred broad powers on the arbitrators. It reads that the parties agree “to submit all manner of causes of action, controversies, differences, claims, demands and matters whatsoever now pending, existing, held by and between us, relating to or growing out of said contract dated August 5, 1961, by and between Owner and Contractor, and performance thereunder to Tom Magner and La Vere Brooks, as arbitrators * *

The arbitration agreement further provides that the arbitrators shall arbitrate and make an award as to whether Contractor breached his contract by failing to perform according to the standard of skill and excellence practiced in Dallas County, Texas, whether he failed to provide the quality of materials as called for in the plans and specifications relating to the contract of August 5, 1961, and if so what amount of damages Contractor owed Owner by reason of said breaches. But in connection with the standard above referred to the agreement goes on to say that the arbitrators “are to take cognizance, however, of that provision of the contract between Robert H. Barnett and William H. Smith for the construction of the subject house, wherein the house to be built for William H. Smith was to be a duplication of a house built at 4623 Allencrest by the same builder, Robert H. Barnett, with additions and refinements as agreed on.”

The agreement also provides that in determining damages the arbitrators should give a breakdown of the damages by assigning to each item of substandard work the' reasonable cost of correction. However, the agreement expressly states that, such breakdown is required for the purpose-of Contractor’s seeking recourse against his-subcontractors for the damages resulting' from substandard work.

The arbitrators were furnished a copy of the arbitration agreement, a lengthy list of" the complaints made by appellants, and on-at least two occasions inspected both the-house at 4707 Crooked Lane and the house-at 4623 Allencrest Street.

THE AWARD

The arbitrators in their award presented; a summation of their findings and conclusions as follows:

“Original Contract $32,150.00
‘Extra’ Costs Allowed 4,369.50
$36,519.50
* Less: Damage Awards to Owner 3,362.50*
$33,157.00
* Includes—
(a) Air Conditioning Allowance
(Owner to pay Gas Company) $1865.00
(b) Insulation Allowance
(Owner to pay Tex. Ins. Co.) 280.00*
(c) Kitchen-Den Ceiling 57.50*
(d) Building Permit (Owner paid) 60.00-
(e) Adjustment for quality of material and workmanship 1000.00
(f) Service Warranty (1 year) 100.00
$3362.50*
Note: The alleged ‘promotion credit’ $300.00 is, in our considered opinion, an item to be handled by owner direct with Jim Barnes of Barnes Lumber Co.”

The allowance of “ ‘Extra’ Costs Allowed” as above set out was supported by a list of 66 items totaling $4,369.50, with the amount of the allowance after each item.

As will be seen, the allowance of “Damage Awards to Owner” as above set out includes an allowance of $1,000.00 in adjustment for quality of materials and workmanship. This allowance of $1,000.00 is in* turn broken down in another part of the-award into an itemized list of 23 items.

OPINION

Appellants present four points on appeal’.. They allege the trial court erred in granting summary judgment for these reasons: (1) genuine issues of material fact existed as to the validity of the arbitration award; (2) the arbitration award decided matters in excess of the authority given the arbitrators, therefore was void; (3) the award did not determine all matters submitted to the arbitrators, therefore lacked finality, and was void; and (4) alternatively, if not void under Point No. (2), the award contained surplusage matter as a recovery to appellee, therefore the award is void.

We see no merit in any of the above points, but before discussing them in detail we shall review the established legal principles which we consider are controlling in this case.

In the absence of a reservation in the arbitration agreement of a right of appeal, the arbitrators’ decision is final. If the award is within the authority conferred on the arbitrators in the agreement, the award will not be set aside except for fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment. Haddad v. Bagwell, Tex.Civ.App., 317 S.W.2d 781, 784; Couey v. Arrow Coach Lines, Tex.Civ.App., 288 S.W.2d 192, 196; Galveston, H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 685. Mere errors of fact or law are not grounds for setting aside an award. Johnson v. American Can Co., Tex.Civ.App., 361 S.W.2d 451; Grand International Brotherhood of Locomotive Engineers v. Wilson, Tex.Civ.App., 341 S.W.2d 206; Johnson v. Korn, Tex.Civ.App., 117 S.W.2d 514. Even though the arbitrators exceed their authority the award will not be set aside if the excess may be disregarded and a valid award left standing, or if the excess may be regarded as mere surplusage. Gulf Oil Corporation v. Guidry, 160 Tex. 139, 327 S.W.2d 406; Knutson v. Brazoria County, Tex.Civ.App., 170 S.W.2d 843; Ferguson v. Ferguson, Tex.Civ.App., 93 S.W.2d 513; Fortune v. Killebrew, 86 Tex. 172, 23 S.W. 976; Shultz & Bro. v. Lempert, 55 Tex. 273. An award must determine all the matters submitted under the terms of the arbitration, otherwise it will he bad for want of finality. The above holdings are discussed in 6 Tex.Jur.2d 73, 78, 86, 87-91, 95.

Appellants in their pleadings allege that the arbitrators made “gross and palpable mistakes, accidents and errors.” They do-not allege that the arbitrators acted in bad faith or that they failed to exercise honest judgment.

In connection with their first and third points on appeal appellants charge-that the arbitrators failed to give a breakdown of damages as they were directed to do in the agreement; and that the award is incomplete because the arbitrators failed to consider all of appellants’ complaints. There is no merit in these claims. The arbitrators did give a breakdown or an itemized list of claims allowed. The submission agreement does not stipulate that the arbitrators must comment on each item disallowed by them. Both administrators testified by deposition to the effect that they were furnished a list of complaints by appellants and a reply by appel-lee and that they considered all of the items listed. There is no evidence to the contrary. Moreover, the arbitration agreement expressly states that the stipulation about the detailed breakdown of items is-for the purpose of enabling appellee to recover his losses from his subcontractors. It was not put in the agreement for the benefit of appellants.

Appellants also claim that the arbitrators based their award wholly upon the-standard appellee practiced in building the similar residence at 4623 Allencrest Street instead of the standard practiced by contractors in Dallas, Texas. There is no-merit in this claim. It must be borne in. mind that in this very connection the arbitrators were directed to take cognizance-of the contractual provision that the house-at 4707 Crooked Lane should be an exact duplication of the house at 4623 Allencrest,. with changes as noted. There is no evidence that the Crooked Lane house was not built according to the standards practiced in the City of Dallas. We find no evidence that the arbitrators based their award wholly upon the standard of practice followed in constructing the house on Allencrest. But if they did it would not follow that they made a mistake, for there is no evidence that the Allencrest house is not constructed according to the standard practiced in Dallas.

Space will not permit of our discussing each of the mistakes alleged to have been made by the arbitrators. If they were mistakes (we do not say they were) they are not of such a nature as to vitiate the award. For example, appellants object to an allowance of $15.00 for regrouting brick floors. Appellants say this is not sufficient because they paid $40.00 for rewaxing the floors. Appellants’ first and third points are overruled.

Under their second point on appeal appellants contend that the arbitrators exceeded their authority in three particulars: (1) in providing that interest under the mechanic’s lien should run until the closing date; (2) in providing that the owner should pay the gas company for the air conditioning; and (3) in providing that the owner should pay the company which did the insulation.

Again we must hold that there is no merit to appellants’ claims. At the time the arbitrators made their award on April 20, 1962 the mechanic’s lien obligation in the amount of $32,150.00 executed by appellants was unpaid. Subsequently on August 31, 1962 appellants paid the mechanic’s lien, thus stopping the running of interest on that obligation. Yet at the closing interest was mistakenly computed on the whole award of $33,157.00 at the mechanic’s lien rate, whereas the said interest should have been charged only on the amount of the mechanic’s lien, $32,150.00. Appellee admits that interest was erroneously charged on $1,007.00, the difference between the amount of the mechanic’s lien and the amount of the award. The judgment should be modified accordingly.

The mistake in computing the interest was not the arbitrators’ mistake. Their comment merely followed the terms of the mechanic’s lien contract without change. They did not compute the interest, for the mechanic’s lien had not been paid when they made the award. In our opinion they did not exceed their authority. But even if we were to hold that their comment was unauthorized it could be disregarded as mere surplusage, and the remainder of the award left standing.

As to the $1,865.00 allowance for air conditioning, the original contract called for appellee to install air conditioning for $1,865.00. Appellants wanted another kind of air conditioning than that called for in the contract. So they made their own contract with the gas company for an amount in excess of $1,865.00. The arbitrators made an allowance in favor of appellants for the $1,865.00 provided in their contract with appellee. Appellants were obligated then to pay the gas company the full amount of their separate contract with the gas company to which contract appel-lee was not a party.

A similar situation developed with reference to the insulation contract. Appellants made their own agreement with Texas Insulation Company, to which agreement ap-pellee was not a party. The same is true of the promotion credit of $300.00 with Barnes Lumber Company.

Appellants’ second point is overruled.

Appellants’ fourth point, alleged alternatively, is also without merit except insofar as it asks that the judgment be reformed to credit appellants with the excessive interest charged. The judgment should be so reformed. Otherwise appellants’ fourth point is overruled.

The judgment of the trial court is reformed to the extent of allowing appellants a credit of the interest charged on $1,007.00, the last named amount being the difference between the amount of the mechanic’s lien contract and the amount of the award.

The judgment as above reformed is affirmed. The costs of appeal will be taxed one-third against appellee and two-thirds against appellants.

Reformed and affirmed.


author: WERLEIN, Justice.

text:
    CENTRAL FREIGHT LINES, INC., Appellant, v. Mrs. Lillie BECKER et al., Appellees.
    No. 14194.
    Court of Civil Appeals of Texas. Houston.
    Dec. 5, 1963.
    Rehearing Denied Jan. 9, 1964.
    Phillip Robinson, Austin, atty.; James, Robinson & Starnes, Austin, of counsel, for appellant.
    Pollan & Nicholson, John T. Nicholson, Rosenberg, for appellee Mrs. Lillie Becker, d/b/a Dixie Truck Line.
    Reagan Sayers, Rawlings, Sayers, Scur-lock & Eidson, Fort Worth, for appel-lee Red Arrow Freight Lines, Inc.
   WERLEIN, Justice.

This suit was brought by appellee, Mrs. Lillie Becker, d/b/a Dixie Truck Line, hereinafter referred to as “Dixie,” against Central Freight Lines, Inc., hereinafter referred to as “Central” or appellant. Appel-lee, Red Arrow Freight Lines, Inc., hereinafter referred to as “Red Arrow,” intervened in the suit and largely made common cause with Dixie.

Appellees sought a declaratory judgment declaring that Central has no certificate of public convenience and necessity from the Railroad Commission of Texas to perform a common carrier motor carrier service to the points named in Dixie’s Certificate No. 2409, and in particular Duval Sulphur Plant, Rosenberg, Richmond, Sugárland, Stafford and Missouri City, and also declaring the rights, authority, places and routes authorized by appellant’s Certificate of Public Convenience and Necessity No. 2325. Appellees prayed that Central be permanently enjoined from performing any character of motor common carrier service from Houston to said places or between such places in reverse order.

Appellant, in the alternative to its prayer that appellees take nothing, sought a declaratory judgment against appellees declaring that they were exceeding their Railroad Commission Certificates of authority. It also sought a permanent injunction enjoining each of such appellees from operating to and from certain points alleged to be in excess of their certificates of authority.

Appellees concede that Central has authority under a Common Carrier Motor Carrier’s Certificate, other than Certificate No. 2325, to serve Missouri City. They took a non-suit as to Missouri City and Du-val Sulphur Plant.

Appellant appeals from the judgment of the trial court holding and declaring that Central has no authority under Common Carrier Motor Carrier’s Permanent Certificate of Convenience and Necessity No. .2325 to perform an intrastate common carrier service between Houston and Rosenberg or to any point or place on the route between Houston and Rosenberg over U. S. Highway 59, and in enjoining Central from performing any such service at Rosenberg or any such intermediate points except Missouri City. Appellant also appeals from the judgment of the trial court by cross-assignment in connection with its counterclaim (a) in holding and declaring that Dixie has authority under its Certificate No. 2409 to perform common carrier service between Houston and Rosenberg and all intermediate points on the route between Houston and Rosenberg over U. S. Highway 59, and (b) in holding and declaring that Red Arrow has authority under its Certificate No. 2600 to perform the same character of unrestricted common carrier service as does Dixie between Houston and Rosenberg and at intermediate points on the route between Houston and Rosenberg over U. S. Highway 59.

Appellant asserts that Dixie and Red Arrow, while claiming the right to serve Rosenberg and intermediate towns between Rosenberg and Houston on Highway 59, also known as Highway 90A, between such points, under their Certificates of Convenience and Necessity, are attempting to make a collateral attack upon Certificate No. 2325 and the Railroad Commission’s decisions and orders on which it is based. Clearly, this suit is not a direct attack upon any order of the Railroad Commission of Texas. A suit directly attacking an order of the Commission would have to be filed in the District Court of Travis County as provided by Article 911b, Sec. 20, Vernon’s Annotated Texas Statutes.

Appellees, on the other hand, contend that they are not attacking the order of the Railroad Commission, but are merely asking that Certificate No. 2325 be construed by the court and that the court declare what rights and authority Central may have under such certificate.

A brief review of the history of Certificate No. 2325 and the evidence, which consists largely of exhibits, will be helpful in considering the questions presented by this appeal. On September 12, 1929 the Railroad Commission of Texas issued a Class “A” Motor Carrier’s Temporary Certificate of Convenience and Necessity No. 2325 to Jesse C. Rinn, of Brenham, Texas, authorizing the operation of a motor carrier service from Brenham to Houston via Chappel Hill — one roundtrip daily. Under the subheading “(Other Towns and Stops on the Route and between Termini),” is inserted “Brenham to Houston via Bell-ville — one roundtrip daily.”

This certificate was issued on the application of said Jesse C. Rinn, dated June 12, 1929, to which was attached Exhibit “D”: “1. Route is from Brenham to Houston via Chappel Hill, and 2. The second route is from Brenham to Houston via Bellville, Sealy, Wallis and Houston.” There was also attached to such application a schedule showing time of leaving Brenham and Houston and arriving at said points, together with a rate schedule applicable to said named points. No protest was filed to such application.

On July 10, 1931 the Railroad Commission entered an order approving and granting permission for the sale and transfer by Jesse C. Rinn, d/b/a Rinn’s Truck Line, to P. H. and F. E. Deschner, d/b/a Rinn’s Motor Freight Line, of said Certificate of Convenience and Necessity authorizing the operation of a Class “A” Motor Carrier Service from Brenham to Houston via Chappel Hill and from Brenham to Houston via Bellville. On August 22, 1931 Permanent Certificate of Convenience and Necessity No. 2325 Intrastate was issued to the said P. H, and F. E. Deschner, d/b/a Rinn’s Motor Freight Line, to operate from Bren-ham to Houston via Chappel Hill, or Bell-ville, alternating, one roundtrip daily. Such certificate was issued in accordance with the provisions of Chapter 314, Acts Regular Session, 41st Legislature, 1929, as amended at the Regular Session, 42nd Legislature, 1931.

On March 15, 1932, the Commission approved the sale and transfer of Certificate No. 2325 from P. H. and F. E. Deschner, d/b/a Rinn Motor Freight Line, to Jesse C. Rinn, d/b/a Rinn Motor Freight Line, authorizing service from Brenham to Houston via Bellville, Sealy, Wallis and Chappel Hill. On January 5, 1935 Permanent Certificate of Convenience and Necessity No. 2325 was issued authorizing the said J. C. Rinn, d/b/a Rinn’s Motor Freight Line, to operate from Brenham to Houston via Chappel Hill and/or Bellville, Sealy and Wallis, and on January 23, 1935 permission was granted to change the schedule of service. The new schedule gave the time of departure and arrival at said points. No change was made in the points to be served. By order of the Commission dated October 10, 1935, the application of said Rinn for authority to extend his present common motor carrier service from Bellville to Industry, 15 miles distant, on Highway 159 was granted. On February 9, 1938 the Commission approved the sale of said certificate from Rinn to Union Truck Depot, Inc., and Certificate No. 2325 was issued to said Union Truck Depot, Inc., February 14, 1938. With the exception of adding Industry, no change was made in the towns or points to be served.

On January 11, 1940 Union Truck Depot, Inc., filed its motion with the Railroad Commission for clarification and correction of its Common Carrier Certificate No. 2325, asking that the Commission set out in said certificate the town of Orchard, which town was alleged to be on appellant’s route covered by said certificate, but not named as an intermediate point in said certificate. Pursuant to such motion the Commission on February 23, 1940 ordered that Orchard be expressly named in Certificate No. 2325. In the certificate issued February 27, 1940 this was done.

On October 31, 1960, the Railroad Commission, upon application of the holder of Certificate No. 2325, changed the name of such holder from Union Truck Depot, Inc. to Union Truck Lines, Inc. because of a charter amendment changing the corporate name of the holder. Following such change of name and because thereof, the Commission issued Certificate No. 2325 in the name of Union Truck Lines, Inc., under date of November 29, 1960, giving it authority to operate “from Brenham to Houston via Chappel Hill and/or Bellville, Sealy, Orchard and Wallis; and from Bellville to Industry: FINAL." On the face of the certificate is the notation “(Name Changed by Charter Amendment)”. In the issuance of Certificate No. 2325 on November 29, 1960 the Railroad Commission used a printed form different from those previously used in connection with Certificate No. 2325, which contained the following paragraphs:

Austin, Texas, NOV 29 1960 194—
“In accordance with the decision and order of the Railroad Commission of Texas, in its Certificate of Convenience and Necessity Docket No. 2325, and in accordance with the provision of Chapter 314, Acts, Regular Session of the Forty-first Legislature, 1929, as amended at the Regular Session of the Forty-second Legislature, 1931, as amended Regular Session of Forty-seventh Legislature, 1941 and as otherwise amended.
“THIS CERTIFIES that the public convenience and necessity require such operation and permission is hereby granted to UNION TRUCK LINES, INC., whose principal address is Box 18286, Houston, Texas, to operate as a common carrier motor carrier and to render a daily, coordinated motor carrier service in the transportation of commodities generally, to, from and between the cities, towns, villages and communities situated on and along the described portions of the highways and routes below set out, subject to the restrictions below set out, if any, and subject to rates approved by the Commission, on equipment registered with the Commission, with such frequency of service as is evidenced by schedules filed with the Commission, pursuant to its general orders. Schedules filed with the Commission shall be considered as expressly approved unless expressly disapproved by the Commission.”

Just below the above printed language there appears to be typewritten the following: “To Operate: from Brenham to Houston via Chappel Hill and/or Bellville, Sealy, Orchard and Wallis; and from Bell-ville to Industry: FINAL”. On October 16, 1961 the Commission approved the sale of Certificate No. 2325 from Union Truck Lines, Inc. to the appellant herein, Central Freight Lines, Inc. In the order approving such transfer the Commission authorized Central to operate in the same manner and under the same rules and regulations “as heretofore authorized under such certificate, and using in said operation the number of trucks as shown by the last equipment record.” Both Dixie and Red Arrow opposed the transfer of the certificate to Central. Dixie’s complaint was that the copy of the contract between Union Truck Lines, Inc. and Central, accompanying said application for sale and purchase of said certificate, refers to points such as Rosenberg, Richmond, Sugarland and Stafford, and all intermediate points, which were never included in Certificate No. 2325, and that in the alternative if such certificate authorized service to such points, they had not been served in the past by Union, and as to them said certificate was dormant. Red Arrow also took the same position with respect to partial dormancy and also asked for a rehearing because the affidavit of Union’s president, Mr. Cole, indicated that Union had never conducted any operations under Certificate No. 2325 serving Rosenberg, Richmond, Sugarland, Stafford and Missouri City. Notwithstanding such protest the sale and transfer from Union to Central was approved. Neither Dixie nor Red Arrow appealed from the order of the Railroad Commission approving the sale and transfer, and they do not attack the same in the present suit.

We do not agree with appellant that this suit constitutes a collateral attack upon Certificate No. 2325 or upon the Railroad Commission’s decisions and orders upon which it is based. The pleadings and the evidence show that appellees are merely seeking a declaratory judgment construing said certificate, declaring what rights and authority appellant has thereunder, and enjoining appellant from operating in excess of the authority granted in the certificate. In Sunset Express, Inc. v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 154 S.W.2d 860, writ ref., w. m., the defendant’s contentions were similar to those of appellant in this case. The court held that the District Court of Tarrant County, Texas, had jurisdiction to maintain a suit brought to enjoin a motor carrier from operating in excess of the authority granted under its certificate and to prevent further violation of a final order of the Railroad Commission. In that case, as in this case, the suit was not an appeal from any act, order or ruling of the Commission. See also Alamo Express v. Brown Express, Tex.Civ.App., 234 S.W.2d 62, writ ref., n. r. e.

The question narrows itself down to whether the printed language contained in the certificate to Union Truck Lines, Inc., upon change of its corporate name and in the certificate granted Central because of the sale and transfer from Union to Central, can he construed as extending for the first time service under Certificate No. 2325 to all of the cities, towns, villages and communities on and along the described portions of the highways and routes, between Brenham and Houston over Highway 59 in addition to the points expressly named in the original “grandfather” temporary Certificate No. 2325 issued in 1929 and in Certificate No. 2325 reissued at various times thereafter down to and including the last Certificate No. 2325 granted Central on November 24, 1961, without any change except the addition of Orchard and Industry as hereinabove shown.

As in Alamo Express v. Brown Express, supra, the certificates here involved were each and all founded on a Certificate of Convenience and Necessity issued under the “grandfather clause” of the Motor Carrier Act of 1929. Insofar as this litigation is concerned, neither appellant nor any prior assignors made application to the Commission for any certificate of convenience and necessity other than the basic application number 2325 and which does not cover in its route exhibit, map attached, time schedule, rate schedule or attached affidavits, any reference to any of the towns or points involved in this suit on Highway 59. Appellant apparently attaches some importance to the typewritten phrase in parentheses, to wit: “(Other towns and stops on the route and between Termini)” contained in the various certificates preceding Certificate 2325 issued November 29, 1960. It seems clear from a careful examination of said certificates that such phrase is merely a subheading under which could be listed by name other towns and stops. A space some three inches in depth has been left on such certificates underneath said phrase or subheading for the filling in of the names of other towns and stops. None of the points involved in this suit has been inserted in such space on any of the certificates.

The Act of the 42nd Legislature, 1931, H. B. No. 335, Ch. 277, amends Section 5 of the Act of 1929 and provides, among other things:

“Sec. 5. No motor carrier shall hereafter operate as a common carrier for the transportation of property for compensation or hire over the public highways of this State without first having obtained from the Commission, under the provisions of this Act, a certificate declaring that the public convenience and necessity requires such operation; provided, however, the Commission shall, without application or hearing when this Act goes into effect, issue all motor carriers then operating lawfully under permanent certificates of public convenience and necessity heretofore issued to them, certificates in lieu of the certificates issued under the terms of the former law covering the same routes that said common carrier shall have been operating over, and no more.”

The Act of 1931 does not give the Commission the authority without a hearing and declaration of public convenience and necessity, to issue a certificate except to a carrier that has been operating lawfully under a permanent certificate of convenience and necessity, and then only covering the same routes that such carrier shall have been operating over and no more.

This brings us to a consideration of appellant’s Certificate No. 2325 granted November 24, 1961, which contains the same language employed in the certificate issued to Union Truck Lines, Inc., on November 29, 1960, hereinabove set out. Since this is the same certificate as the original “grandfather” Certificate No. 2325 issued to Jesse C. Rinn September 12, 1929, with the exception that it names the towns of Industry and Orchard, neither of which is on Highway 59, it should be construed in light of its history hereinabove set out. Under the original grandfather clause and the Act of 1931, the certificate was restricted to operating as the applicant had been previously operating as shown in the application filed by the carrier and there could be no extension of such service without a hearing and finding of convenience and necessity. Alamo Express v. Brown Express, supra. The record shows that there has never been such hearing or finding by the Commission covering the towns in question in this suit. While one or more of the holders of such certificates may have undertaken by indirection to obtain an extension covering additional places to be served under Certificate No. 2325, we find neither an application asking for any such extension nor any action on the part of the Commission granting the same, unless the language hereinabove set out can be construed to do so.

It will be observed that said printed language in the certificate granting authority to operate to, from and between the cities, towns, villages and communities, is conditioned that such places be “on and along the described portions of the highways and routes below set out.” Neither Highway 59 (90A) nor any other highway is set out in the original Certificate No. 2325 or any succeeding reissue thereof. Moreover none of the cities located on Highway 59 is named in the certificate with the exception of the terminal city, Houston, which is on, or the terminus of, many highways. The towns involved in this suit, and which are not named in Certificate No. 2325, are all on Highway 59.

In the blank space following the above mentioned printed language, there appears the definite, if not restricted, and final authority, which reads: “TO OPERATE: from Brenham to Houston via Chappel Hill and/or Bellville, Sealy, Orchard and Wallis; and from Bellville to Industry: FINAL.” (emphasis supplied) The “described portions of the highways or routes below set out” are defined or marked by the named places thereon, to wit: Bellville, Sealy, Orchard, Wallis and Industry. It is clear that service may be rendered at such points or any places between such points. If Central, under its certificate, can serve all cities, towns, villages and communities between the termini Brenham and Houston, no purpose would be served by naming any point. A designated highway would be sufficient. Other points, however, are named, thereby designating the portions of the highways and routes where service may be rendered. If the Commission were undertaking to extend by implication the service permitted under Certificate No. 2325 to include all places, villages and communities on Highway 59, it surely would have designated at least one town or village on such highway between Houston and Brenham in order to mark an additional portion of the route that might be served. It evidently felt it necessary to include Orchard, which is on Highway 36, when service under Certificate No. 2325 was extended to that town.

Moreover, we must presume that the Railroad Commission, by using the printed form containing such general language, did not intend to grant an extension without following the procedure prescribed by law. We may also assume that by inserting in the blank space on the certificate, below such printed language, the places served which are on highways other than 59 and by refusing or failing to set out expressly Highway 59 or to set out the same impliedly by designating some city or town between Brenham and Houston located thereon, the Commission did not intend to extend the service permissible under Certificate No. 2325 to places concerning- which there had never been a hearing and a finding of public convenience and necessity. Alamo Express v. Brown Express, supra, and authorities cited therein.

It is our view that both Dixie and Red Arrow are entitled to serve the cities and towns on Highway 59 under their certificates of convenience and necessity, as found and decreed by the trial court. Furthermore, under our holding in this case Central has no justiciable interest in regard thereto, since it has no right to serve such points.

Appellant’s other points of error are overruled.

Judgment affirmed.