author: . BARCUS, J.

text:
    BYNUM v. SCOTT et al.
    No. 1023.
    Court of Civil Appeals of Texas. Waco.
    May 21, 1931.
    Rehearing Denied June 18, 1931.
    S. O. Love joy, of Houston, C. L. Bass, of Houston, on appeal, for appellant.
    T. R. Mears, of Gatesville, for appellees.
   . BARCUS, J.

On October 25, 1928, appellant executed his promissory note for $167.25, payable to Bill Smitherman, or order, on or before June 25, 1929, providing for 10 per cent, attorney’s fees, and secured by a chattel mortgage on personal property of the alleged value of $190. There was written on the face of the note, the statement: “This note is to be paid $20.00 per month.” Said note, without being indorsed, was sold and delivered to appellees by Bill Smitherman in part payment for an automobile. In August, 1929, appellees filed tbis suit on said note against appellant in tbe justice court, where they recovered judgment for tbe amount of tbe note, with 10 per cent, attorney’s fees and 6 per cent, interest from maturity, together with a foreclosure of tbe mortgage lien. Tbe cause was appealed to tbe county court, where a similar judgment was rendered.

Appellant, under oath, denied tbe allegation of appellees that they were holders of tbe note for value before maturity, and specially plead, under oath, that there was no consideration given for the note in that Bill Smitherman, the payee therein, agreed and obligated himself to transfer to appellant for said note, a mail route or contract for carrying the United States mail from G’atesville to Pearl, Tex., and return, and he alleged that said Smitherman did not so transfer said mail route or contract. He further alleged that if it should be found said mail route or contract was actually transferred to him, that same was illegal and void because in contravention of the United States statutes. The cause was tried to a jury, and at the conclusion of the testimony the court instructed the jury to return a verdict for appellees.

Appellant complains of the action of the court in giving a peremptory instruction, his contention being that the question of failure of consideration for the note was raised by the evidence if it did not show as a matter of law that the consideration failed. We sustain this proposition. Appellant testified that the note was executed by him for a contract to carry mail between ^atesville and Pearl. He further testified that the mail route or contract was not transferred to him. This testimony was not disputed. If the consideration for which the note was given failed, or if there was no consideration for the note, then appellees were not entitled to recover. The evidence having raised these issues, the trial court should not have instructed a verdict for appellees.

While, appellees alleged they were holders in due course before maturity, the testimony shows without dispute that the note was not indorsed until during the trial of the case in the county court.' Section SO of the Negotiable Instruments Act, article 5934 of the Revised Statutes, provides that a note “payable to order it is negotiated by the in-dorsement of the holder cómpléted 'by deliv- , ery.’’ ' Section 49 of the Negotiable Instruments Act provides' specifically that “for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.” The note in question not having been indorsed until during the trial of the ease in the county court, which was long after its maturity, appellees were not holders in due course for value before maturity. Ingraham v. England (Tex. Civ. App.) 258 S. W. 278; Ellington v. Commercial State Bank (Tex. Civ. App.) 15 S.W.(2d) 59; Id. (Tex. Com. App.) 24 S.W.(2d) 359.

Appellant further contends that the note was void and is therefore unenforceable, because given in consideration of the transfer or assignment to him of a mail route or contract for the carrying of mail between Gates-ville and Pearl. 39 USCA § 445 provides, in effect, that.one who has a contract for carrying mail may transfer, sublet, or assign same upon the approval of the Postmaster General. In Myers v. Pickett, 81 Tex. 53, 16 S. W. 643, our Supreme Court held that an assignment or transfer of a contract for carrying mail was not void, but was simply voidable at the instance of the government. Since it is not shown that the contract for carrying mail was actually made, and since the facts with reference to the matter have not been fully developed, we do not deem it necessary to and we do not pass on the question as to whether the note is void.

Eor the error indicated, the judgment of the trial court is reversed, and the cause remanded.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    TEXAS PIPE LINE CO. v. BRIDGES.
    No. 2085.
    Court of Civil Appeals of Texas. Beaumont.
    June 4, 1931.

      Wm. K. Hall, of Houston, and Davis & Davis, of Center, for appellant.
    Sanders & McLeroy, of Center, for appellee.
   WALKER, J.

This was an action by appellee against appellant for damages to his land caused by the spreading over his land of oil from a leak in appellant’s pipe line. The issue of damages was submitted to the jury by the following question and charge:

“Special Issue No. 4. From a preponderance of the evidence in the case, what amount of money, if now paid in cash, do you find would compensate the plaintiff for the damages, if any, he has sustained?
“You will answer this by stating the amount, if any you find, in dollars and cents.
“In answering special Issue No. 4 you are instructed that in determining the amount of damages, if any, sustained by the plaintiff, you may take into consideration the reasonable cash market value of the land immedi-. ately prior to the time of such damages, if any, and the reasonable cash market value of such land immediately after such damage. The plaintiff’s damage, if any, would be the difference between the reasonable cash market value of said land immediately prior to the damage, if any, and after such damage, if any.”

Answering this question the jury assessed appellee’s damages at $1,600, and judgment was accordingly entered in his favor.

Appellant duly excepted to the charge because the court failed and refused to define the term “market value.” Discussing this proposition in Texas Pipe Line Co. v. Watkins, 26 S.W.(2d) 1103, 1104, Mr. Chief Justice Hightower, speaking for this court, said:

“We have no doubt that the term ‘reasonable fair cash market value’ is a legal term of well-defined meaning, and that it was the duty of the trial' court, under article 2189, supra, to define the term in order to properly guide the jury in answering special issues.”

Appellee would distinguish this case from Texas Pipe Line Co. v. Watkins, on the following grounds:

(a) Appellant requested special charges submitting its view of appellee’s measure of •damages, as follows:

“Defendant’s Special Issue No. 1. State the market value per acre of the bottom land involved in this case immediately prior to the leaks in defendant’s pipe line in the year 1930.
“Defendant’s Special Issue No. 2. State the market valhe per acre of the bottom lands involved in this ease after the leaks in defendant’s pipe line in the year 1930.”

Not having defined the term “market value” in its requested issues, appellee now insists that appellant cannot complain of this omission in the court’s charge because of the-defect or omission in its requested issues. There is no merit in this contention. The-trial court refused appellant's issues and submitted the issue of damages in its own language. It follows that the charge as given, must be measured by the exceptions urged against it because it cannot be said that appellant misled the trial court.

(b) In this case the exception was against the refusal to define the term “market value.” In the case cited the exception was against the refusal to define the term “reasonable fair cash market value.” It is the term “market value” that has the “well-defined legal meaning,” as that language was used by Judge Hightower in the cited case. Had the court defined, “market value” in response to appellant’s exception, the jury would have had no difficulty in applying the definition to the language of the charge. The refusal of the trial court to define the term “market value” constituted reversible-error.

There is no merit in the exception that special issue No. 4 was a general charge. Under this exception appellant insists that the measure of damages could only be submitted in the form and manner suggested, by its requested issues given above. We think issue No. 4, with the accompanying, charge, constituted a special, and not a general, submission.

The evidence was sufficient to raise issue-No. 4, and to support the jury’s verdict answering the same. For the .error diseussed-the judgment of the lower court is reversed: and the cause remanded for a new trial.

Reversed and remanded.


author: CRITZ, J. CUBETON, C. J.

text:
    T. L. CAMP, Plaintiff in Error, v. DALLAS NATIONAL BANK OF DALLAS et al., Defendants in Error.
    Motion Nos. 9593, 9604; No. 1430—5635.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    For original opinion, see 21 S.W.(2d) 104, which was affirmed in part and reversed in part in 36 S.W.(2d) 994.
   CRITZ, J.

This caso is before us on motions for rehearing filed herein by T. L. Camp and by Foster and Davisson.

We have read and carefully considered both of said motions and still adhere to the views expressed in our original opinion as to all questions of law involved in this ease.

However, in the motion of Foster and Da-visson, they call our attention to the fact that judgment was awarded in this court in their favor over against Camp for any amount that they (Foster and Davisson), may have to pay to the Dallas National Bank. Foster and Davisson also call our attention to the fact that they did not ask for any judgment over against T. L. Camp and disclaim any wish therefor.

We therefore recommend that both motions above mentioned be overruled, except that so much of the original judgment entered by the Supreme Court as awards Foster and Davis-son a judgment over against T. L. Camp for any sums of money that they may be compelled to pay to the bank be set aside.

CUBETON, C. J.

Previous judgment modified, as recommended by the Commission of Appeals.


author: BEDDY, J. CUBETON, C. J.

text:
    Mrs. Kate ROGERS et al. v. John W. HOUSE et al.
    No. 1261—5654.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    M. G. Cox, of Cameron, and Jos. W. Hale, of Waco, for plaintiffs in error.
    Wilcox & Graves, of Georgetown, Henderson, Kidd & Henderson, of Cameron, and E. A. Camp, of Boekdale, for defendants in error.
   BEDDY, J.

Both parties challenge the correctness of the disposition made of this case by the Court of Civil Appeals. 23 S.W.(2d) 414.

After a careful consideration of the questions submitted we have reached the conclusion that the case has been properly decided.

The original opinion and that rendered on rehearing by the Court of Civil Appeals contain a full and elaborate treatment of all the material questions now urged before us. Inasmuch as we find ourselves in full accord with the conclusions so ably expressed by that court and approve the reasoning supporting same, it is unnecessary that we engage in any discussion of the issues presented.

We therefore recommend that the judgment of the Court of Civil Appeals be affirmed.

CUBETON, C. J.

Judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.


author: BEDD Y, J. OURETON, C. J.

text:
    George W. SHEFFIELD, Jr., Tax Collector, v. George H. SHEPPARD, Comptroller.
    No. 1240—5679.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    Frank H. Booth, of San Antonio, and Austin Y. Bryan, Jr., of Houston, for relator.
    Robert Bee Bobbitt, formerly Atty. Gen., H. Grady Chandler, formerly Asst. Atty. Gen., James Y. Allred, Atty. Gen.; and Sidney Ben-bow, Asst. Atty. Gen., for respondent.
   BEDD Y, J.

Relator’s right to the award of a writ of mandamus against respondent is dependent upon the validity of a contract duly entered into between Mills-Dewitt Company, a corporation, and the commissioners’ court of Brazoria county, in which the former agreed to prepare abstracts, maps, and plats of lands in said county deemed necessary to facilitate the collection of taxes in consideration of the payment to it by the county of 33⅛ per cent, of all delinquent taxes, as of February 1,1929, ■which were actually collected.

The state challenges the validity of the contract upon various grounds. It is unnecessary to enter into a discussion of the questions thus raised, for the reason that our Supreme Court in the case of Commissioners’ Court v. Wallace, 118 Tex. 279, 15 S.W.(2d) 535, upheld the validity of a contract embodying substantially the same terms as the one here involved against the identical objections now presented.

The contract under consideration was entered into several months after the rendition of the above decision, and was evidently prepared with the view of following the very terms of the contract there construed, as it not only is a substantial copy of such contract, but, with a few immaterial exceptions, follows the identical wording thereof. Every objection now urged by the state was embodied in its brief filed in the above case, and the Supreme Court, after a full consideration of the objections thus urged, rendered its decision sustaining the validity of the contract.

Under authority of the ease discussed, the writ of mandamus must be awarded as prayed for, and we so recommend.

OURETON, C. J.

The opinion of the Commission of Appeals is adopted, and the mandamus awarded.


author: MORROW, P. J.

text:
    Eug. ALTHAUS v. STATE.
    No. 14520.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is swindling, a misdemeanor; penalty assessed at a fine of $30" and confinement in the county jail for 15 days.

The indictment appears regular and regularly presented. The evidence heard before the trial court is not brought forward for review. No fundamental error has been perceived or pointed out.

The judgment .is affirmed.


author: CALHOUN, J.

text:
    Buster BLAND v. STATE.
    No. 14556.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    W. R. Smith, Jr., of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted' of the theft of property, to wit, an automobile, of less than the value of $50, and his punishment assessed at six months in the county jail and a fine of $100.

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

The motion is granted, and the appeal dismissed.

PER CURIAM;

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


author: LATTIMORE, J.

text:
    Warren CALDWELL v. STATE.
    No. 14509.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    A. M. Waugh, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The record is here without any statement of facts or bills of exception.’ The indictment correctly charges the offense, and is followed by the charge of the court, the judgment, and sentence.

No error appearing, the judgment will be affirmed.


author: HAWKINS, J.

text:
    J. W. CARTER v. STATE.
    No. 14349.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    W. O. Croy, of Wellington, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for knowingly passing as true a forged instrument; punishment being confinement in the penitentiary for three years.

Appellant has filed his affidavit advising this court that he does not desire further to prosecute his appeal, and at his request the same is ordered dismissed.


author: CHRISTIAN, J.

text:
    CHIEF RED WING v. STATE.
    No. 14478.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Schleyer & Triesch, of New Braunfels, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

Appellant worked for Enrique Cavazos, who operated a tent show. Cavazos and his wife were in New Braunfels giving night performances. On the night of the homicide, deceased, Angelina Cavazos, who was a little more than 2 years of age, had been left by her mother in a house not far from the tent show. In his written voluntary confession appellant stated that he saw the mother of deceased leave the house; that he had been drinking and was impelled by sexual desires to seek the little girl; that going to the house he.lifted deceased from her bed while she was sleeping and carried her some distance away, where he ravished her; that after having satisfied his sexual desires he killed her by striking her on the head. The body of deceased was found several days after the offense had been committed. The skull was crushed, and an examination disclosed that she had been criminally assaulted. The state introduced circumstances corroborating appellant’s confession. Appellant offered no testimony.

No bills of exception are brought forward. It appears that the court gave a charge which adequately presented the law applicable to the facts in evidence. Appellant presented no exceptions to the charge. The evidence is sufficient to support the judgment of conviction.

The judgment is affirmed.

PER CURIAM.

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


text:
    J. D. DAVIS v. STATE.
    No. 14557.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Robert B. Thrasher,, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for five years.

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

PER CURIAM.

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


author: MORROW, Pi J.

text:
    Will DIXON v. STATE.
    No. 14445.
    Court of Criminal Appeals of Texas.
    June 17, 1931.

      •M. O. Nelson, of Aransas Pass, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Pi J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

No fault in the indictment nor irregularity in the procedure has been perceived or pointed out. The evidence that was before the trial court is not brought up for review.

The judgment is affirmed.


author: ■ MORROW, P. J.

text:
    Robert GOLIGHTLY v. STATE.
    No. 14479.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ■ MORROW, P. J.

The offense is the unlawful sale-of intoxicating liquor; penalty assessed at confinement in the penitentiary for 1 ½ years.

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


text:
    Camilo HERRERA v. STATE.
    No. 14456.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Bennett & Klein, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for robbery; punishment, fifteen years in the penitentiary.

The record is here without statement of facts or bills of exception. The indictment, the charge of the court, the 'judgment, and sentence appearing regular, the judgment will be affirmed.


text:
    Ex parte W. D. JUSTICE.
    No. 14510.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    Earle P. Adams, of Crockett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, far the State.
   HAWKINS, J.

Relator filed in this court an original application for writ of habeas corpus seeking release from the custody of the sheriff of Harris county, Tex., who was holding him-by virtue of an order made by the district judge of the criminal district court ⅛ that county adjudging relator to be guilty of contempt. The sheriff was directed to show cause why the writ should not issue.

The sheriff’s sworn reply, to the order, shows that, before the order of this court was received in Harris county, ’the judge of the criminal district court had released relator, and that he is not now held under the contempt proceeding.

This renders it unnecessary to proceed further ’in the matter, and the cause is dismissed.


author: LATTIMORE, J. HAWKINS, J.

text:
    John LINDSEY v. STATE.
    No. 14261.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Rehearing Denied June 24, 1931.

      S. M. Adams, of Nacogdoches, for appellant. ■
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishment, two years in the penitentiary.

We find no bills of exception in the record. The indictment, the charge of the court, the judgment, and sentence appear regular. The facts seem sufficient to support the conclusion of guilt.

The judgment "will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant contends that the evidence is insufficient to support a conviction for assault with intent to murder, because Eason, the injured party, was some fifty or sixty yards away at the time appellant shot him with a shotgun loaded with squirrel shot.

Appellant had run Eason away from home the night before, threatening to get a gun and kill him. On the morning of the assault appellant first got an axe, and when Eason ran appellant seized a gun and shot him. Basquez v. State (Tex. Cr. App.) 26 S.W.(2d) 206, Hatton v. State, 31 Tex. Cr. R. 686, 21 S.W. (2d) 679, and Franklin v. State, 37 Tex. Cr. R. 113, 38 S. W. 802, 1016, seem decisive against appellant’s contention.

The motion for rehearing is overruled.


text:
    Primus McDONALD v. STATE.
    No. 14483.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    A. L. Bevil, of Kountze, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful transportation of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for two years.

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


text:
    W. E. MASSEY v. STATE.
    No. 14499.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    J. D. Willis, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

■ Conviction is for burglary; punishment being confinement in the penitentiary for five years.

Appellant has filed in this court his affidavit advising that he does not further desire to prosecute his appeal.

As requested, the appeal is ordered dismissed.


text:
    Sam PARKS v. STATE.
    No. 14343.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for forgery; punishment, seven years in the penitentiary.

No error appearing, the judgment will be affirmed.


text:
    Sam RIVETTE v. STATE.
    No. 14548.
    Court of Criminal Appeals of Texas.
    June 17, 1931.

      R. H. Jernigan, of Port Arthur, and W. J. Baldwin,, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty, confinement in the penitentiary for ten years. .

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


text:
    Joe SCHULTE v. STATE.
    No. 14178.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    J. W. Ragsdale, of Victoria, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, two years in the penitentiary.

The record is here without statement of facts or bills of exception. . The indictment, the charge, the judgment, and sentence appear to be regular, and, no error appearing, the judgment will be affirmed.-


text:
    J. A. SHAW v. STATE.
    No. 14566.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    A. T. Blackshear, of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, the unlawful possession of intoxicating liquor for the purpose of sale; punishment, one year in the penitentiary.

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

The mption is granted and the appeal dismissed.

PER CURIAM.

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


text:
    Jess SMALLWOOD v. STATE.
    No. 14334.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    R. E. Eubank, of Paris, for appellant.
    Lloyd W.' Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for wife desertion, punishment being one year in the penitentiary.

The prosecution was under article 602, P. C., as amended by chapter 195, § 1, Regular Session, 41st Legislature, 1929 (Vernon’s Ann. P. C. art. 602).

In Ex parte Heartsill (Tex. Cr. App.) 38 S. W.(2d) 803, decided May 6, 1931, motion for rehearing overruled May 27, 1931, it was. held that the amendatory act was unconstitutional by reason of a defective caption.

It therefore becomes necessary to reverse this judgment and remand the cause for such further proceedings as are not inconsistent with the holding in the Heartsill Case, supra. In the latter case it was assumed that the misdemeanor statute was still operative. It therefore occurs to us that the proper procedure would be for the district court to transfer the case to the county court to be proceeded on there.


text:
    Joe T. WARD v. STATE.
    No. 14523.
    Court of Criminal Appeals of Texas.
    June 10, 1931.

      Martin, Shipman & Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully selling intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for a period of one year.

Neither bills of exception nor statement of facts are found in the record. The indictment is regular and regularly presented. No fault in the procedure has been observed or called to the attention of the court.

The judgment is affirmed.


text:
    Joe T. WARD v. STATE.
    No. 14522.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    Martin, Shipman & Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, three years in the penitentiary.

The record is here without any statement of facts or bills of exception. The indictment correctly charges the offense, and is followed by the charge of the court, the judgment, and sentence.

No error appearing, the judgment will be affirmed.


text:
    Sam WELLS v. STATE.
    No. 14553.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Scott & Scott and Wilkinson & Wilkinson, all of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

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

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

The motion is granted and the appeal dismissed.

PER CURIAM.

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


text:
    Fred WHEELER v. STATE.
    No. 14458.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    A. L. Lewis, of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., -of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

We find neither statement of facts nor bills of exception in the record. The indictment charges the offense, and is followed by the charge of the court, the judgment, and sentence.

No error appearing, the judgment will be affirmed.-


text:
    Isaac WILLIAMS v. STATE.
    No. 14460.
    Court of Criminal Appeals of Texas.
    June 17, 1931.

      Letts & Roland, of Houston, for appellant
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to murder ; punishment being five years in the penitentiary.

The assaulted party was Jessie Love, a nephew of appellant. Love was in a house with several other parties seated around a table. It was at night. A gun was fired through a window and a charge of shot struck Love in the shoulder, tearing a hole as large as the “top of a drinking glass.” Love testified that he recognized appellant as the party who fired through the window, and that appellant then went to the door of the house and another shot was fired. Sidney Williams testified that when the party came to the door witness recognized him as appellant; that witness threw a bottle at him and slammed the door in his face, and the gun fired again on the porch but no one knew where the shot went. Appellant denied the shooting, and claimed to have been at home about, a mile away when it occurred. Other members of his family supported him to that effect. There are other circumstances in evidence not necessary to detail here.

No bills of exception are found in the record complaining of any procedure during the trial. The only question is the sufficiency of the evidence. It was purely a fact case and it was the province of the jury to settle the disputed issues. It appears to have been an attempted assassination of Love. The verdict fixed the guilt on appellant.

The judgment is affirmed.


text:
    J. C. YOUNG v. STATE.
    No. 14470.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    G. de Graffenried, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for aggravated assault; punishment, a fine of $180.

“■ We find in the record neither statement of facts nor bills of exception. All the proceedings appear to be in conformity with law, and, ho error appearing, the judgment will be affirmed.


author: RANDOLPH, J.

text:
    J. C. COLLINS, Appellant, v. William BALFOUR, Appellee.
    No. 3627.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1931.
    Rehearing Denied June 24, 1931.
    R. E. Stalcup and Tatum & Strong, all of Dalhart, for appellant.
    Cooper & Lumpkin, .of Amarillo, for appel-lee.
   RANDOLPH, J.

This is the second appeal in this case. Balfour was the appellant on the former appeal, and on hearing in this court we certified to the honorable Supreme Court Sf Texas, the following question: “Balfour, not having been shown to be a party interested as an heir, legatee, etc., of William Reid, was he such a person as was entitled to file a contest of'the administration proceedings in the County Court of Dallam County, under the provisions of art. 3372, Revised Civil Statutes of Texas?”

The certificate also calls attention of the Supreme Court to article 3315 of said statutes.

The Commission of Appeals answered fully, and their answer will be discussed in the further consideration of the case at bar. On return of the answers of the Commission of Appeals to this court [see 25 S.W.(2d) 804], we entered judgment reversing and remanding the judgment of the trial court for a new trial under the instructions contained in the opinion of the Commission of Appeals [see memorandum opinion 27 S.W.(2d) 185].

The new trial has been had in the district court, and on this last trial that court rendered judgment finding that the deceased, William Reid, had a fixed residence and domicile in Oldham county, Tex.; that contestee, J. C. Collins, now resides and has for a number of years resided in Hartley county, Tex., and further decreed in its judgment now under consideration here, that the county court of Dallam county, Tex., had no jurisdiction over the estate of William Reid, deceased, and that the application of contestee, J. C. Collins, for temporary and permanent administration on the estate of William Reid, deceased, be in all things denied. It was further ordered by the trial court that said Collins be denied the right to qualify and act as administrator of the estate of William Reid, deceased, and also for judgment for costs against said Collins.

Under practically the same facts as are recited substantially in the opinion of the Commission of Appeals and which appear in the record herein, the Commission of Appeals holds that Collins was not qualified to act as administrator of said estate because he resided outside of Dallam county, Tex., the county in which the probate proceedings were pending.

It- is therefore apparent that the errors assigned to the admission of testimony to establish the deceased’s residence at the time of his death became immaterial, as Collins’ application to be appointed administrator of the estate falls because of the recitals therein of his residence in Hartley county. Hence, whether the deceased had a residence in Old-ham county, in Dallam county, or had no fixed place of residence, Collins was not qualified to act as administrator of said estate in the county court of D'allam county, and the 'trial court’s judgment was and is correct.

We therefore affirm the trial court’s judgment, with this correction; That when the district court of Dallam county, Tex., certifies its decree to the county court of Dallam county, Tex., it shall further order said county court to at once dismiss the application of J. C. Collins as administrator and also dismiss the pending administration of the estate of William Reid, deceased, from its docket.


author: MORRISON, Judge.

text:
    Bobby J. RUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38237.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Rex Emerson (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., James C. Brough and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary; the punishment, eleven years.

Upon a plea of guilty the appellant personally joined in a stipulation with his counsel and counsel for the State that he committed the primary offense charged in the indictment and that if the injured party were present she would testify that the burglary had been committed. They further stipulated that if another named witness were present, she would testify that she saw the appellant in possession of the fruits of the burglary on the day charged in the indictment.

Though no brief was filed, appellant’s counsel on appeal did appear and argue. He contended that the procedure set forth above did not comply with the provisions of Article 12, Vernon’s Ann.C.C.P., and that hence the evidence is insufficient to support this conviction. With such contention we do not agree. Though appellant did not testify, he did personally join in the stipulation that he committed the offense charged and such brings this case within the rule announced in Ex Parte Keener, 166 Tex.Cr.R. 326, 314 S.W.2d 93.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ex parte Irma McMURROUGH.
    No. 38321.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Forrest N. Troutman, Austin, Neal Dancer, Corpus Christi, for relator.
    Wiley L. Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The relator makes direct application to this court for the writ of habeas corpus, seeking her release from the custody of the sheriff of Calhoun County. Relator was adjudged guilty of contempt by the District Court of Calhoun County on April 19, 1965, for refusal to answer questions propounded to her by the Grand Jury of said County. The repeated refusal was on the ground of self-incrimination.

She was fined $50 and committed to jail until such fine was paid and “until she purges herself by testifying as to what she knows before the Grand Jury.”

In Ex parte Richards, 109 Tex.Cr.R. 387, 4 S.W.2d 974, this court said:

“The jurisdiction of the court to enter the order in question rests upon the refusal of the accused to answer a proper question, that is to say, a question propounded in the investigation by the grand jury of some criminal matter within the scope of its authority. See Ex parte Jennings, 91 Tex.Cr.R. 612, 240 S.W. 942, 22 A.L.R. 1351. On a habeas corpus hearing, it is the office of this court to determine whether the relator has refused to answer a proper question. From the case of Ex parte Miller, 91 Tex.Cr.R. 607, 240 S.W. 944, we quote:
“ ‘If it was not such a question, then the court is without jurisdiction to enter a judgment of contempt against the witness. The court is without jurisdiction to hold a witness in contempt when the refusal is not contempt. Holman v. State [Mayor of City of Austin], 34 Tex. [668] 673; Gould v. State, 61 Tex.Cr.R. 195, 134 S.W. 364 [695] ; Snodgrass v. State, 43 Tex.Cr.R. [359] 364 [65 S.W. 1061]; Degener v. State, 30 Tex.App. 566 [17 S.W. 1111].’”

It does not appear from the questions propounded to the relator that the Grand Jury was inquiring as to whether a violation of the abortion statute or a related offense had been committed, prosecution for which could he had upon an indictment returned by the Grand Jury of Calhoun County. Art. 387, C.C.P. Also, the order committing the relator to jail “until she purges herself by testifying as to what she knows before the grand jury” did not show that the grand jury was investigating the commission of an offense within the scope of its authority.

The judgment is reversed and the relator is ordered discharged.

Opinion approved by the Court.


author: PER CURIAM.

text:
    PYOTE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Carl D. ESTES et al., Appellees.
    No. 5747.
    Court of Civil Appeals of Texas. El Paso.
    April 14, 1965.
    Rehearing Denied May 5, 1965.

      Murray J. Howze, Monahans, Hill D. Hudson, Pecos, for appellant.
    R. B. McGowen, Jr., Pecos, T. H. Neel, A. R. Archer, Jr., Monahans, for appellees.
   PER CURIAM.

This is an appeal involving substantially the same parties involved in our previous opinion, numbered 5740, which bears the same date as this opinion, styled Lasater et al., Appellants, v. Middleton et al., Appellees, 390 S.W.2d 8. In the case before us the appellant (plaintiff in the court below) appealed to the District Court from an order of the County School Trustees of Ward County, Texas consolidating the Pyote Independent School District with the Monahans-Wickett Independent School District. From an adverse ruling of the District Court, appellant has perfected its appeal. Appellant presents six points of error, and we shall take them up in the order presented.

In Point 1 appellant claims that the court erred in refusing to allow appellant to -file its First Supplemental Petition and to allow evidence thereon.

With reference to Point 1, it appears that on the morning of August 12, 1964, just as this case was to go to trial before the District Court, the Supplemental Petition was presented by the appellant. It was objected to by appellees on the ground that it was actually an amended petition, and that such petition attempted to attack, for the first time in this particular lawsuit, the election of one A. J. Staas as School Trustee from Precinct 4, Ward County, Texas. As stated in our former opinion, Mr. Staas received 24 write-in votes at the Pyote election. It was stipulated that while no election was called by the County Judge for the election of County School Trustees, nevertheless the write-in votes were cast at the time and place for the election of County School Trustees from Precinct 4. Articles 2746c and 2676, T.R.C.S., Vernon’s Ann.Civ. St. arts. 2746c, 2676, provide that dual elections may be held on this statutory day; in other words, the electorate may vote for both independent school district candidates and county school district candidates. As we have held in our former opinion, the election of A. J. Staas could not be attacked at this time except by quo warranto proceedings. Other than to mention that the time for statutory election contests had elapsed, we will not elaborate on our prior discussion of this matter. Williams v. Castlemen, 112 Tex. 193, 247 S.W. 263; Kunschik v. Nichols, 135 Tex. 1, 137 S.W.2d 1000. The matter is further discussed in Whitmarsh v. Buckley, Tex.Civ.App., 324 S.W.2d 298 (n.w.h.), and reference is made to this particular case and the cases cited therein. Also passing on this matter are the following cases: McFarlin v. State, 272 S.W.2d 630 (Tex.Civ.App., wr.ref.); Willborn v. Deans, 240 S.W.2d 791 (Tex.Civ.App., n.r.e.); 47 Tex.Jur.2d 568, Sec. 5. These cases illustrate what we have said before — that where an attack is made against the election of a public official or officer by one not asserting an adverse claim for such office, it occupies a different position than election contest which has for its purpose the declaration of the invalidity of activities or actions of certain boards or corporate bodies. An attack on the election of a public officer by one not asserting an adverse claim must be made either by a statutory election contest brought within the time provided, or by quo warranto proceedings. To hold otherwise would be to say that a member of some school board, or other corporate body, might be elected and serve for months, or even a year or more, and then his election be contested because of the way he voted or behaved on such board. This is not and never has been the intent of the law. The case of Cunningham v. Queen, Tex.Civ.App., 96 S.W.2d 798, cited by appellants, has to do with write-in votes cast at a run-off, or second primary. We do not think this case is in point. We should also like to reiterate that Article 4.04, Texas Election Code, V.A.T.S., grants the electorate the right to express its desires at the polls regardless of the failure or failures of some election official. It is also provided within our Texas Constitution that the potential power is inherent in the people. In overruling this point we again cite Bryant v. O’Donnell, 359 S.W.2d 281 (Tex.Civ.App., n.w.h.), and Carpenter v. Longuemare, 153 Tex. 439, 270 S.W.2d 457.

Further, it has been held that in order to protect the public and individuals, an officer whose election or appointment might be illegal and invalid is still a de facto official, and such is particularly true where there is an office to fill and an election had at the time and place authorized by statute. Boesch v. Byrom, 37 Tex.Civ.App. 35, 83 S.W. 18 (er.ref.). It is also held that the authority of a de facto official and his right to hold office may not be questioned in a collateral proceeding, but should properly be tested in a quo warranto proceeding. Bowen v. Board of School Trustees, Tex.Civ.App., 16 S.W.2d 424. Appellees point out in their brief that appellant had plenty of opportunity to file a statutory election contest, but did not do so, and did not attack the validity of Mr. Staas’ election until the proceedings to annex the Pyote Independent School District came under consideration by the Ward County School Trustees. Also, with respect to this first point, it must be pointed out that the presiding judge has considerable law and discretion at his command with reference to his acceptance of this type of pleading presented at the time it was. Rule 63, Vernon’s Texas Rules of Civil Procedure. Appellant’s first point is overruled.

Appellant’s Point 2 does not present anything new except the statement that the court refused to allow appellant the opportunity to introduce evidence that the order of the County School Trustees of Ward County, Texas in annexing the Pyote Independent School District was null and void and permeated by fraud and deceit. But, as appellees point out, nowhere in appellant’s brief is cited any place in the transcript, or statement of facts, indicating such refusal on the part of the court, and there is no evidence of fraud or deceit offered by the plaintiff in the trial court and refused. Point 3 alleges that the County Board of Trustees as constituted is illegal; hut again, this seems to be an attack based on the alleged illegal election of A. J. Staas, and we have already held, and consider it clear, that this is an improper action, and not a quo warranto as required by law. Even though there is no clear evidence of the refusal of the evidence alluded to, it still is not important, because it would only apply to a matter that is not properly before the court because a quo warranto proceeding was not filed. Also, it will be noted that only the illegal status of A. J. Staas was attacked. Points 2 and 3 of appellant’s brief are overruled.

Appellant’s Point 4 alleges that the court erroneously applied the doctrine of res judicata on the ground that the matter of whether this matter should be a quo warranto proceeding or not was brought up in a previous trial that had not been consummated by appeal. We do not believe that principle is applicable here, but that the proper principle is that this matter was brought up and considered in a plea in abatement in another case, which indicates the pendency of another action involving the •same subject matter between the parties. 'Therefore, we do not find that we have a res judicata situation here, hut rather one that involves the question of the election of Mr. Staas as the subject matter of another suit which is presently on appeal. This matter was clearly presented to the trial court and in cause 5740 its legality has been passed •on by this court. So at the time of the trial of the case before us there was pending another suit involving the same matter and •the same parties, which preceded the filing ■of this, a subsequent suit to the same effect. This was obviously the position taken by the trial court. Carter and Bro. v. State, 139 S.W.2d 661 (Tex.Civ.App., er.ref.); Rips v. Ungerman, 137 S.W.2d 87 (Civ.App., er.dism.); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

Appellant’s Points 5 and 6 attack the annexation order of the Ward County School Trustees as being arbitrary and capricious and not supported by substantial evidence, and assert that the trial court erred, in effect, in holding that the County Board of School Trustees of Ward County was a legally constituted Board, or were at least de facto County School Trustees. We think these two points must be overruled. It appears that the action complained of occurred at a meeting at which all five of the Board of School Trustees of Ward County were present, with four members voting in favor of the annexation and one member voting against it. Evidence was introduced before the trial court showing that the Pyote Independent School District — a 12-grade system — had, at the close of school in May, 1964, a scholastic enrollment of only 75 pupils, while the Monahans-Wickett Independent School District had an enrollment of 3,277; that there were 153 teachers in the latter school and only 12 in the Pyote District. Evidence was also introduced showing that the per-student cost of maintaining the school system in the Pyote District was $1,610.67, while the same per-student cost in the Monahans-Wickett District was $415.36; that the Monahans-Wickett District was a fully accredited member of the Southern Association of Colleges and Universities; that the Pyote Independent School District was not so accredited; that high school students in the Monahans-Wickett District had a choice of 60 to 70 subjects, while high school students in the Pyote District had a choice of only 15. Appellees claim that appellant did not offer any evidence which was refused by the court concerning the merits of the annexation order, and that therefore appellant’s Point 5 is moot. In any event, however, under the substantial evidence rule, it is clear to us that there was ample evidence before the trial court to justify the annexation by the County School Trustees of Ward County. Art. 2922a, T.R.C.S., Vernon’s Ann.Civ.St. art. 2922a; Neill v. Cook, 365 S.W.2d 824 (Tex.Civ.App., n.r.e.); Erath Co. Sch. Trustees v. Hico County Line Ind. S. Dist., Tex.Civ.App., 247 S.W.2d 564. The record is replete with exhibits upholding and illustrating the facts and circumstances detailed above with reference to the advantages of annexation.

As to the substantial evidence rule, it has long been the law that upon an attack of such an administrative order as we have here, competent evidence bearing on the question is admissible and entitled to consideration whether such evidence was actually before the administrative board at the time of the administrative action. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; State Board of Examiners in Optometry v. Marlow, 257 S.W.2d 761 (Tex.Civ.App., n.w.h.). For the reasons stated above, Point 5 must be overruled.

Appellant’s Point 6 does not really present anything new. It merely says the court erred in holding that the County Board of School Trustees of Ward County, Texas was legally constituted, or they were at least de facto County School Trustees. Some of these members had not be reelected in 1963, but it is provided by our Constitution, and upheld by numerous decisions since, that office holders still retain their validity to serve until their successors shall be duly qualified. This, of course, is to keep the wheels of government in motion. However, appellant does not attack or complain of this matter, but address themselves to the legality of the election and service of Mr. Staas, and try to maintain that because, in their opinion, he was illegally elected, all actions of the Board were therefore illegal. The matter of the election of Mr. Staas has already been disposed of. There are cases holding the status of the other members of the Board to be legal, and statutes to that effect, so that there will always be a functioning Board. Article 2676, T.R.C.S.; Article XVI, Sec. 17, Texas Constitution, Vernon’s Ann.St.; Plains Common Consol. Sch. Dist. No. 1, etc. v. Hayhurst, 122 S.W.2d 322 (Tex.Civ.App., n.w.h.). Finally, we should like again to refer to Article 2922a, T.R.C.S., which authorizes the County School Trustees of a particular county to annex, within certain limits, smaller independent school districts to major school districts. The annexation order with which we are here concerned was by virtue of this statute, the constitutionality of which has been tested in court many times. Neill v. Cook, 365 S.W.2d 824 (Tex.Civ.App., n.r.e.); District Trustees, etc. v. Pleasanton Ind. Sch. Dist., Tex.Civ.App., 362 S.W.2d 122 (n.r.e.). Here we have an independent school district where the school enrollment has declined in the last several years from 145 to only 75 students in all 12 grades, with the cost per capita per year about four times that of the Monahans-Wiekett School District; plus the fact that the Monahans-Wiekett School District is accredited, with other advantages we will not enumerate. Therefore, it appears to us that the facts amply justify, and in actuality compel, the annexation order by the Ward County School Trustees. It is obvious, and we so hold, that the annexation order was not arbitrary or capricious, but that it was supported by substantial evidence and was executed or promulgated by a legally constituted Board.

Appellant’s points are therefore overruled, and the judgment of the trial court is in all things affirmed.


text:
    A. M. LASATER et al., Appellants, v. J. E. MIDDLETON et al., Appellees.
    No. 5740.
    Court of Civil Appeals of Texas. El Paso.
    April 14, 1965.
    Rehearing Denied May 5, 1965.
    Murray J. Howze, Monahans, Hill D. Hudson, Pecos, for appellants.
    R. B. McGowen, Jr., Pecos, T. H. Neel, A. R. Archer, Jr., Monahans, for appellees.
   PER CURIAM.

This is an appeal from a holding of the District Court of Ward County, Texas in which the court sustained a plea in abatement filed by the defendants. As described in appellees’ brief, the plaintiffs in the trial court were Pyote Independent School District, et al., and defendants were Ward County School Trustees. The plaintiff-appellants asked for a declaratory judgment seeking to have declared null and void the election of one A. J. Staas to the County Board of School Trustees of Ward County from Precinct 4 of that county. At an independent school district election held at Pyote and by Pyote Independent School District, some 24 voters wrote across the bottom of their ballots the words “For County Trustee” and below that the name of A. J. Staas. This election was held April 4, 1964, and appellants filed their petition attacking the validity of the election of Mr. Staas on July 14, 1964, some four months after the election.- It is conceded that the election was held on the first Saturday in April, the statutory time for the holding of such county and/or district school trustee elections, as set forth in Articles 2746c and 2676 as amended, Vernon’s Ann.Civ.St. arts. 2746c, 2676. These articles provide for dual elections of school district trustees and county trustees to be held together, at the same time and place and under the supervision of the same election judges. The appellees filed a plea in abatement alleging that the action was not proper because it was neither a statutory election contest nor a “quo warranto” proceeding. Upon hearing the parties, the trial court sustained the plea in abatement, and appeal therefrom has been timely made to this court.

The appellants claim that the lower court committed error in holding that they could not maintain their action for declaratory-judgment and injunction; in sustaining ap-pellees’ plea in abatement; in holding quo warranto proceedings to be the exclusive remedy; and lastly, that the action was an election contest.

We believe that the action of the trial court must be sustained. The time for filing an election contest had elapsed, and it is conceded that this was not in the nature of a “quo warranto” proceeding. Appellees allege that the reason for this rule is that where an attack is made against the election of a public officer by a person not asserting an adverse claim to such office, such attack can be made by the public generally only in the form of a statutory election contest or quo warranto proceeding. They argue that this is a rule of reason because an elective official might be subject to attack as to the validity of his election at any time during the tour of his office simply because he displeased some or part of the electorate. It has been held in Texas that the motive of the electorate in its voting is not binding in a contest over the election of such official. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627. The appellants here base their attack largely on the fact that the County Judge did not call the election in question with respect to the election of county school trustees. However, Article 4.04 of the Texas Election Code, V.A.T.S. provides that the failure of a public official whose duty it is to call such election does not deprive the people of the right to have the election and express their desires therein. It has also been held that laws requiring notice of general election are usually held to be directory only. Christy v. Williams, Tex.Civ.App., 292 S.W.2d 348; error dismissed 156 Tex. 555, 298 S.W.2d 565. It has also been held by the Dallas Court of Civil Appeals that the failure to put the name of the office and the candidate on the official ballot does not evidence that the voters did not know that they could write in the names of their choice as nominees for the office. (That seems to be our situation here, as some 103 people voted for trustees for the Pyote Independent School District in Precinct 4, including the 24 write-in votes for Mr. Staas as County School Trustee for Ward County). In this same decision rendered by the Dallas Court of Civil Appeals (no writ history), it is pointed out that to hold otherwise might be a dangerous invitation to preclude voters from the privilege of voting merely by leaving the title and/or the name of any nominee off of the ballot, as well as to permit election officials to exercise their own discretion in disallowing votes on the ground that, in the opinion of the election officials, the voters were not sufficiently well informed to know that they might vote for certain offices. This case goes on to point out that voters are presumed to know the law and their rights thereunder, and the fact that a very small number voted is no reason for throwing out their votes. This same opinion also cites an opinion by the Texas Attorney General, No. 0-2576, in which it is stated that the electorate may write in both the title of the office and the name of the candidate of their choice. Bryant v. O’Donnell, 359 S.W.2d 281 (Civ.App., Dallas, n. w. h.); Carpenter v. Longuemare, 153 Tex. 439, 270 S.W.2d 457.

It Is apparent from the record that the election of Mr. Staas was known and announced immediately, but that nobody took any action for four months, at which time the County School Trustees commenced consideration of the possible consolidation, or annexation, of the Pyote Independent School District with the Monahans-Wickett Independent School District.

In summation, therefore, it appears from the record that at a regular election for school district trustees, which under law was permitted to be a dual election, the name of Mr. Staas was written in as County School Trustee for Precinct 4, Ward County, Texas. Appellants, in their brief, argue that this was a preconceived scheme to destroy and abolish the Pyote School District. However, as pointed out above the law does not permit the motive of voters to be inquired into, and there is no evidence that this was the reason that Mr. Staas was so elected. The only proof offered found in the Statement of Facts, the Transcript and the Bill of Exceptions is that a number of voters did not know that anybody was going to vote for Mr. Staas for this position. As stated above, the law has been enunciated very recently to the effect that voters are presumed to know the law of elections and their rights thereunder. We do not find that this is, as alleged by appellants, a “void election”. It is not an attack by one adversely seeking the office, but by a group of people seeking to disallow the election of a county school trustee some four months after the election, at a time when the said county school board of trustees was considering the annexation of the Pyote Independent School District. As pointed out above, it has been clearly enunciated that a qualified voter may vote at a regular election for a candidate of his choice even though the name of the office or the candidate is not to be found on the ballot and has to be written in by the voter. It is conceded that the action here is not in any way a “quo warranto”, nor can it be an election contest because of lapse of time. We hold, therefore, that the matter before us could only be attacked by either statutory election contest or a proceeding in quo warranto, and that the attack by appellants here is not the proper one under the circumstances hereunto appertaining. As we have pointed out, and as stated by appellants in their brief, this is a class action or an action by the people, rather than that of one claiming the office adversely to the incumbent.

For the reasons set forth above, we overrule all of appellants’ points and hold that the trial judge was correct is sustaining the appellees’ plea in abatement.

The judgment of the trial court is therefore, in all things, affirmed.


author: ARCHER, Chief Justice.

text:
    Robert S. CALVERT et al., Appellants, v. GENERAL RETAIL CORPORATION, Appellee.
    No. 11286.
    Court of Civil Appeals of Texas. Austin.
    April 14, 1965.
    Rehearing Denied May 5, 1965.
    Waggoner Carr, Atty. Gen., H. Grady Chandler, Gordon C. Cass, Asst. Atty. Gen., Austin, for appellants.

      Clark, Thomas, Harris, Denius & Winters, Sander W. Shapiro, Roderick Edens, Jr., Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court ordering the refund to ap-pellee of $7,434.00 paid under protest for a tax assessed under the Texas Chain Store Tax Act (Art. 17.01 et seq., Title 122A, V. A.C.S.).

There were stipulations as to facts, and testimony was given by appellants.

The court made findings of fact and conclusions of law.

On trial before the court judgment was based on the holding that the shoe departments were not “stores” separate from the department stores operated by Dunlap.

The appeal is founded on ten points assigned as error by the trial court and are to the effect that the court erred in concluding that the shoe departments are not stores within the meaning of Article 17.01 et seq.; in holding the plaintiff is not liable for the tax on the 9 locations; in concluding that plaintiff does not operate stores in the Dunlap stores; in concluding that plaintiff does not own or control the shoe departments, and is not the person required to pay the tax; in concluding that the shoe departments are operated and controlled by Dunlap; that Dunlap had paid the full tax; in finding that each of the shoe departments is not a separate business from that of Dunlap’s, and finally in not rendering judgment that plaintiff take nothing.

Appellee is engaged primarily in the business of selling shoes. It sells shoes through its own retail outlets, through departments operated by it, under a lease agreement, in other retail stores, and by consignment to other retail stores.

Appellee has heretofore entered into a Lease agreement with Dunlap, a firm operating a full line department store, covering 9 locations in 9 different Dunlap stores, for space in said stores for the purpose of operating a shoe department therein for the sale of shoes at retail. The lease agreement is on a Landlord-Tenant basis. Ap-pellee stocks the department with its own merchandise, hires the salesmen to operate said department, who sell the merchandise, and who serve as employees of appellee and are paid by appellee. In consideration for the space leased by appellee and other services, the Lessor receives a percentage of the sales of said shoe department.

The statutes covering the operation of Chain Stores are:

Article 17.01, Title 122A.
“From and after the passage of this Chapter it shall be unlawful for any person, agent, receiver, trustee, firm, corporation, association or copartnership, either foreign or domestic to operate, maintain, open or establish any store or mercantile establishment in this State without first having obtained a license so to do from the Comptroller of Public Accounts as hereinafter provided. Acts 1959, 56th Leg. 3rd C.S. p. 187, ch. 1.”
Article 17.02.
“(a) Any person, agent, receiver, trustee, firm, corporation, association or copartnership desiring to operate, maintain, open or establish a store or mercantile establishment in this State shall apply to the Comptroller of Public Accounts for a license so to do. The application for a license shall be made on a form which shall be prescribed and furnished by the Comptroller of Public Accounts and shall set forth the name of the owner, manager, trustee, lessee, receiver, or other person desiring such license, the name of such store or mercantile establishment, the location, including the street number of such store, or mercantile establishment, and such other facts and information as the Comptroller of Public Accounts may require. If the applicant desires to operate, maintain, open or establish more than one such store or mercantile establishment, such applicant shall make application for a license to operate, maintain, open or establish each such store or mercantile establishment, but the respective stores or mercantile establishments for which the applicant desires to secure licenses may all be listed on one application blank.
“(b) It is hereby made the further duty of the Comptroller to collect, sup-service, and enforce the collection of all license and application fees that may be due under the provisions of this Chapter and to that end the said Comptroller is hereby vested with all of the power and authority conferred by this Chapter. The Comptroller is further authorized and empowered to promulgate rules and regulations to provide for the collection of the amount of license and application fees due under the provisions of this Chapter and on the effective date of this Chapter.
“The Comptroller is hereby directed to determine the true ownership of any store or stores or establishments or departments, regardless of the name or operating name and collect the tax levied herein accordingly. * * * ”
Article 17.05.
“ (a) * * * Exemptions — not pertinent to this cause.
“(b) The license fees herein prescribed shall be as follows :
“1. Upon one (1) store the license fee shall be Four Dollars ($4) ;
“2. Upon each additional store in excess of one (1), but not to exceed two (2), the license fee shall be Nine Dollars ($9);
“3. Upon each additional store in excess of two (2), but not to exceed five (5), the license fee shall be Twenty-seven Dollars and Fifty Cents ($27.-50);
“4. Upon each additional store in excess of five (5), but not to exceed ten (10), the license fee shall be Fifty-five Dollars ($55);
“5. Upon each additional store in excess of ten (10), but not to- exceed twenty (20), the license fee shall be One Hundred and Sixty-five Dollars ($165) ;
“6. Upon each additional store in excess of twenty (20), but not to exceed thirty-five (35), the license fee shall be Two Hundred and Seventy-five Dollars ($275);
“7. Upon each additional store in excess of thirty-five (35), but not to exceed fifty (50), the license fee shall be Five Hundred and Fifty Dollars ($550);
“8. Upon each additional store in excess of fifty (50), the license fee shall be Eight Hundred and Twenty-five Dollars ($825). * * *”
Article 17.07.
“The term ‘store’ as used in this Chapter shall be construed to mean and include any store or stores or any mercantile establishment or establishments not specifically exempted within this Chapter which are owned, operated, maintained, or controlled by the same person, agent, receiver, trustee, firm, corporation, copartnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind are sold at retail or wholesale. Acts 1959, 56th Leg. 3rd C.S. p. 187, ch. 1.”

The parties made stipulations which are long and we will not copy such in whole but will refer to and copy such parts as appear necessary to determination of the issues.

General Retail Corporation, appellee herein, and Dunlap Company, a corporation entered into a Lease Agreement in 1959 to expire December 31,1964 to lease spaces for shoe departments in eight department stores in Texas, with the right on the part of Lessor to change the locations, and to close a store without reopening a new store, the Lessee to use the space for the purpose of selling at retail shoes and related accessory items, and is granted the exclusive right to do so.

The lease was to evidence the relationship of landlord and tenant, and in no way a partnership, hut to be and remain the business of the Lessee, but shall appear to customers to he a department of Lessor’s business, and all displays in show windows shall conform to Lessor’s requirements. The employees of Lessee shall conform to store-wide rules, and shall be discharged at Lessor’s exclusive option.

Any controversy with any customer of Lessee shall be referred to Lessor for settlement. All receipts through sale of merchandise by Lessee shall be paid to Lessor, who shall make true accounting, and pay out of such account at the order of Lessee all proper expenses.

The Lessor was not to be accountable for making any reports as required by the Social Security Act, or Income Tax Act.

Lessor was to receive for the use of the premises and services rendered 14% of the net sale from all Class A Departments, and 12% from all Class B Departments, and the amount of rent shall be computed monthly and deducted from funds belonging to Lessee in Lessor’s hands.

Provision is made for credit sales, or checks accepted as approved by Lessor, and that the title to all merchandise purchased by Lessee shall remain in Lessee until dis-' posed of by it.

We believe that the shoe departments of appellees located in the Dunlap Stores are stores or mercantile establishments within the meaning of Article 17.01 et seq., supra, and that appellees are liable for the tax.

In Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, the Court stated that “The test is whether sales of goods, wares, or merchandise are made at the place.”

In Fox v. Standard Oil Company of New Jersey, 294 U.S. 87, 55 S.Ct. 333, 79 L.Ed. 780, the Court defined the term store.

The appellee purchases its merchandise, hires its personnel, fixes its prices, and the shoe departments are and remain the business of appellee, although conducted in such a way to appear to the public as a department of Dunlap’s business, and carries workmen’s compensation insurance on its employees, and also public liability insurance.

The amounts retained by Lessor from the funds of Lessee are designated rent; the Lease agreement states it evidences a relationship of Landlord and Tenant.

The Lease agreement provides for the performance by Lessor of certain duties, such as furnishing space, utilities, bookkeeping, office supplies, credit services, opening and closing the doors to Dunlap’s Stores, all of which plaintiff pays for.

Article 17.02(b), reads:

“The Comptroller is hereby directed to determine the true ownership of any store or stores or establishments or departments, regardless of the name or operating name and collect the tax levied herein accordingly.”

Since we believe that the shoe departments operated by appellee in the Dunlap Stores each constitute a separate business from that of Dunlap’s business, it follows that the trial court erred in concluding otherwise.

The Courts are without power, in the absence of a provision in the agreed statement providing otherwise, to draw any inference, or find any facts, not embraced in the agreement, unless, as a matter of law, such other inferences are necessarily compelled; and the judgment of the Court must only declare the law which necessarily arises from the facts agreed on. Texas Mexican Railway Company v. Scott, 60 Tex.Civ.App. 482, 129 S.W. 1170, er. ref., Ozark Plateau Land Company v. Hays, 105 Mo. 143, 16 S.W. 957.

The judgment of the trial court is reversed and judgment rendered that plaintiff, appellee herein, take nothing.

Reversed and rendered.


author: HUGHES, Justice.

text:
    REPUBLIC FINANCE COMPANY, Appellant, v. Willard LEMUEL et ux., Appellees.
    No. 11283.
    Court of Civil Appeals of Texas. Austin.
    April 14, 1965.
    Dullin D. Dodd, Austin, for appellant.
    Maynard & McMurrey, Bastrop, for ap-pellees.
   HUGHES, Justice.

This suit was brought by Republic Finance Company, appellant, against Willard Lemuel and wife, Olivia, to recover the balance alleged to be due on a promissory note executed by appellees to Helen D. Nohra secured by a chattel mortgage on a 1959 Oldsmobile automobile, such note and mortgage having been assigned to appellant. The note was for $1,598.40, payable in monthly installments of $67.00 each, except the last one which was for $57.40, commencing March 1, 1961. The first eight payments on the note were paid on or before the tenth of the month. The ninth installment due November 1, 1961 was not paid and on the eighth of November 1961, appellant went to appellees’ home, took possession of the car and later sold it, crediting appellees’ note with the proceeds of the sale. This left a balance due on the note of $463.-19, for which amount, plus attorney’s fees, appellant sought judgment.

Appellees’ defense to this suit was that before the note became delinquent they entered into an agreement with appellant that they would surrender the car to it for the cancellation or release of their note.

In a nonjury trial, judgment was rendered for appellees.

The trial court made the following relevant findings of fact:

“7. Defendants were good paying clients until their visit to plaintiff’s office relative to turning back the car.
“8. Before default in payment of November of 1961 defendants orally offered to return the Olds to Republic as consideration for the cancellation of the note.
“9. On November 8, 1961, plaintiff’s agent came for the Olds, which was on defendant’s property and drove the car away.
“10. The Olds was driven away under its own power and was not pulled away.
“11. On November 8, 1961, when plaintiff’s agent received the Olds, defendant, Willard Lemuel, demanded the papers for the car but was told that the instruments would have to come from the office after the car had been returned to them in Austin, Texas.
“12. When defendants failed to hear anything from Republic for over five months, they assumed everything had been settled satisfactorily.”

The court concluded that a valid agreement was made between the parties under which the car was returned in consideration of the promise to release the note, and that appellant was not entitled to recover.

The narrative statement of facts contains the following testimony of appellee, Mr. Lemuel:

“The car was bought from Helen D. Nohra in Austin, Travis County, Texas, on February 23, 1961. Thereafter, the note and chattle mortgage having been purchased by Republic Finance Company, monthly payments were made to Republic Finance Company. These payments were made regularly on or before the 10th of each month. My wife and I, after discussing the matter between us of our recent illnesses, decided that this additional car was too great a financial burden at this time and it was decided that we would return the car to Republic, in order to relieve ourselves of this debt. Thereafter, and I believe before the November payment was due, we made a trip to Austin and the Office of Republic Finance Company and offered to return the Olds to the finance company. There was a discussion in the office at this time and it was understood that if I returned the car the matter would be considered closed. On or about November 8, 1961, a man from the finance company came for the Oldsmobile which was on my property with the keys in it; and after talking with me, drove the car away. The Olds was driven away under its own power and was not pulled away. At this time when the finance company’s man came for the Olds I asked for the papers on the car and was told that they would have to come from the office after the car had been returned to them in Austin, Texas. I never heard from the finance company except maybe on one occasion and I never answered this letter nor did I think to inquire any further about the matter or the papers. The first I really knew of any demands from the finance company demanding anything in addition to the car was when this suit was filed against me.”

Appellant has three points of error the substance of which is that no valid contract releasing the note executed by appel-lees is shown for the reason that such contract, if made, was without consideration to support it.

We find that there is ample consideration to support the agreement. The evidence justifies the conclusion that the agreement to surrender the car in return for cancellation of the note was made prior to any default by appellees on the note. Appellees gave up the right to complete their purchase of the car and they also gave up their potential equity in the car. Appellants received this equity as consideration for its agreement to cancel the note. Thus it appears that appellees have sustained a legal detriment and appellant has received a legal benefit. There being both a benefit to the promisor and a detriment to the promisee, the requirement of a consideration for the agreement is doubly supported. See Contracts, 13 Tex.Jur.2d Sec. 46; Contracts, 17 Am.Jur.2d Sec. 96.

The judgment of the trial court is affirmed.

Affirmed.

      . Whether seven or eight payments were made is not clear.


author: CHAPMAN, Justice.

text:
    RADIO KBUY, INC., Appellant, v. Della Burk LIEURANCE, Appellee.
    No. 7453.
    Court of Civil Appeals of Texas. Amarillo.
    March 29, 1965.

      Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
   CHAPMAN, Justice.

This is a case involving fact situations tried to the court based upon a suit upon an open account filed by Radio KBUY, Inc., for radio advertising furnished Amarillo Furniture Company. The company was at all times material herein a corporation, duly chartered on October 16,1952. Its president and principal stockholder was Della Burk Lieurance, its. secretary was William R. Curtis, and the other director was Ella Burk Rogers, who owned twenty-five per cent interest in the corporation.

Appellant sought personal judgment against Mrs. Lieurance, the corporation apparently being defunct at the time of trial.

After the evidence was completed the court rendered judgment for Radio KBUY against Amarillo Furniture Company for $650.00, the amount of the account, for attorney’s fees in the sum of $300.00, and for interest on the entire amount at the rate of six per cent per annum from date of judgment until paid, plus all costs of court.

As against appellant’s effort to take a judgment against Mrs. Lieurance personally, a take-nothing judgment was rendered. It is from such judgment appeal is perfected to this court upon fifty points of error. The first group of points appear to urge the no-evidence and great weight and preponderance of the evidence questions to the court’s findings and conclusions and the judgment rendered thereon to the effect that appellant furnished advertising time to Amarillo Furniture Company rather than Della Burk Lieurance personally.

Though KBUY’s manager, Mr. McLaughlin, testified he sold the advertising time to Mrs. Lieurance, the statement of facts shows the account was with Amarillo Furniture, hilled to Amarillo Furniture Company and that the checks representing the payments on the account were made by Amarillo Furniture or Amarillo Furniture Company. The record also shows that the institution was incorporated with a capital stock of $200,000.00; that it had filed its federal corporation income tax returns and state franchise tax returns each year; that there had never been any intermingling of appellee’s personal business with that of the corporation except that Mrs. Lieurance had loaned the corporation more than $100,000.-00 from her personal estate; and that all receipts of Amarillo Furniture Company were used to pay its obligations. Mrs. Lieu-rance even ceased to draw salary from the corporation, apparently in an effort to cut operating costs. It is also uncontradicted in her testimony that she never individually guaranteed the financial obligations of the corporation.

Mr. McLaughlin, manager for KBUY, admitted he made no investigations from banks or financial rating agencies concerning the financial condition of Mrs. Lieu-rance’s personal estate and the record is silent as to the condition of her personal finances except that she testified that she put all she had into the business. The KBUY manager also admitted that he never checked the trade-name records in Potter County to determine if there was any business being operated as Amarillo Furniture by Della Burk Lieurance, the owner.

The record showed Mrs. Lieurance had been connected with the furniture business since 1949. Before that time her father, E. T. Burk, had owned it and had given it to her and another daughter, Mrs.’ Easley. For a few years they operated it as a partnership. The Easleys, being primarily farmers and ranchers, wanted out of the business. A division was made whereby Mrs. Easley took the building housing the furniture company and Mrs. Lieurance took their interest in the business. The record does not show how the other sister acquired her twenty-five per cent interest in the business but it is uncontradicted that she owned such interest.

Mrs. Lieurance incorporated the business in 1952 and it appears to have been operated as a corporation even until the filing of the suit for $650.00. In fact, appellant in its pleading admitted it to be a corporation but alleged it was only an instrumentality by which Mrs. Lieurance conducted her personal business.

At the request of appellant the court made findings of fact and conclusions of law which were as follows:

FINDINGS OF FACT
“1. The Plaintiff, Radio KBUY, INC., furnished advertising time to Amarillo Furniture Compnay, Inc. over a period of at least two years on open account.
“2. The balance of the account which remained unpaid at the date of the trial was $650.00.
“3. All previous payments on the account were made by the Defendant, Amarillo Furniture Company, and credited by the Plaintiff to the Amarillo Furniture Company account.
“4. Amarillo Furniture Company is a corporation incorporated under the laws of Texas in 1952.
“5. There was no intermingling of the funds of Amarillo Furniture Company and its president, Della Burk Lieurance.
“6. Plaintiff, Radio KBUY, INC, did not rely on any representation of Della Burk Lieurance in extending credit to Amarillo Furniture Company.
“7. Della Burk Lieurance, individually, did not agree to pay the debt of the corporation, Amarillo Furniture Company.
“8. There were no false representations made by the Defendant, Della Burk Lieurance, or the Defendant, Amarillo Furniture Company, to Plaintiff, Radio KBUY, Inc.”
CONCLUSIONS OF LAW
“1. Amarillo Furniture Company is legally indebted to the Plaintiff, Radio KBUY, Inc., in the amount of $650.00.
“2. There is not sufficient evidence to disregard the corporate entity of Amarillo Furniture Company.
“3. Della Burk Lieurance, individually, is not liable for all, or any part, of the balance of Plaintiff’s account.”

Appellant then objected to the findings and conclusions made, requested that they be set aside, and that the court find in accordance with its theory to the effect that the advertising was furnished to Mrs. Lieu-rance rather than the corporation; that all payments on account were made by Mrs. Lieurance as the alter ego of Amarillo Furniture Company; that she advanced money to herself from funds carried under the name of Amarillo Furniture Company; that appellant reasonably relied upon Mrs. Lieu-rance’s representations that she was the owner and sole manager; and that before the advertising time was sold she agreed to pay for it and that Mrs. Lieurance represented to appellant:

“(a) That she was the sole owner and manager of, and doing business under the trade name of, Amarillo Furniture Company;
“(b) That Amarillo Furniture Company was not doing business as a corporation ;
“(c) That the advertising time was being purchased by her individually;
“(d) That Della Burk Lieurance would pay for the advertising time.”

We hold there is sufficient evidence to support the court’s findings of fact and that they are not against the great weight and preponderance of the evidence. We also hold that the court’s conclusions of law are proper.

It would contribute only verbosity to this opinion to separately discuss all the complaints made by appellant concerning Mrs. Lieurance’s representations to Mr. McLaughlin. Suffice it to say that she simply testified the advertising transactions were made by her as president of the corporation. It is academic that the court as the fact-finding agency had the right to believe her.

Exhibits showing an advertisement in the local newspaper and the sign on the building are relied on by appellant to establish its contention that Mrs. Lieurance was not operating as a corporation. The two-page ad introduced into evidence had small print in the left corner called “Owner’s Statement to the Public” and showed the name, “Della Burk Lieurance” at the bottom of the statement. Mrs. Lieurance testified the ad was made up and purchased by a promoter she hired and that she did not even know what was in it. Mrs. Lieurance also testified with respect to the sign on the building that she simply changed her father’s name to her name following the Amarillo Furniture Company’s sign that had been on the side of the building when he operated the business.

It appears to be settled law that courts will not disregard the corporation fiction and hold individual officers, directors or stockholders liable on the obligations of a corporation except where it appears that the individuals are using the corporate entity as a sham to perpetrate fraud, to avoid personal liability or in a few other exceptional situations. Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340.

Essential elements of fraud are a material false statement, made knowingly or recklessly, as regards its falsity, for the purpose of being acted upon and actually being acted on by the defrauded party to his detriment. Gulf, C. & S. F. Ry. Co. v. Houston, Tex.Civ.App., 45 S.W.2d 771 (N.W.H.).

The five elements of fraud are representation, falsity, deception, scienter and injury. Hackner v. Morgan, Circuit Court of Appeals, Second Circuit, 130 F.2d 300.

There is certainly sufficient probative evidence from which the trial court, as the fact finding body, could find a complete lack of scienter on the part of Mrs. Lieurance. It is uncontradicted that she did not knowingly make any fraudulent misrepresentations to secure the advertising time and that the statement in the newspaper ad was made without her knowledge. Therefore, appellant’s first two groupings of points are overruled.

The third grouping of points is to the effect that the corporate veil should be pierced in order to require Mrs. Lieurance to pay for the advertising time. The entire statement of facts in this case consists of only thirty-four letter-sized pages of testimony, by three witnesses, most of which has been discussed.

“In order for courts to disregard the corporate entity, it must appear that the corporate cloak is used by those in control as a sham or pretense to perpetrate fraud, justify wrong or defeat public convenience.” Wells v. Hiskett, Tex.Civ.App., 288 S.W.2d 257 (N.R.E.).

The evidence is without contradiction that there not only is a lack of evidence that Mrs. Lieurance knowingly defrauded KBUY but that she put more than $100,000.00 of her own separate money she had saved from salary and inherited from her father into the business in an effort to keep it solvent so the bills could be paid. It is also without contradiction that appellant made no legitimate effort to determine if it was dealing with a corporation or not. It could have checked the local records or written the Secretary of State. It did neither. Several checks it received on Amarillo Furniture Company were cashed so it just continued to sell the advertising time without any investigation as to whether the name “Amarillo Furniture Company” represented a corporation or some other type of operation.

Mrs. Lieurance testified in effect that most of the advertising represented by the suit for $650.00 was ordered by promoters she had hired. They, of course, were acting for her, but whether they or she purchased it is immaterial. She was the corporation president and ordinarily a corporation can act only through its officers or agents. Wells v. Hiskett, supra. KBUY’s manager testified he sold the advertising time to Mrs. Lieurance. Even that testimony as it shows in the record did not necessarily negate the fact that she was buying the advertising for the corporation, which, of course, she was.

“The general manager of a corporation occupies the position of a general agent. As a corporation can only act through its agents, the general manager, or general agent, is virtually the corporation itself.” Sealy Oil Mill & Mfg. Co. v. Bishop Mfg. Co., 235 S.W. 850 (Tex.Com.App. opinion adopted).

Points forty-nine and fifty are simply repetitious and require no discussion.

The judgment of the trial court is in all things affirmed.

      . Such knowledge as charged one with the consciousness of his actions. Webster’s New International Dictionary, Second Edition.


author: MURRAY, Chief Justice.

text:
    Jose S. CANTU, Appellant, v. WALSH & BURNEY COMPANY, Appellee.
    No. 14371.
    Court of Civil Appeals of Texas. San Antonio.
    April 7, 1965.
    Rehearing Denied May 5, 1965.
    Rudy Rice, James H. Brannon, San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal from a summary judgment that appellant, Jose S. Cantu, take nothing from appellee, Walsh & Burney Company.

On January 20, 1962, appellant was undertaking to start a plaster mixing machine by pulling a rope. The rope broke and he fell through an opening in the basement floor into the sub-basement and very severely injured himself. Appellant brought this suit against Walsh & Burney Company, the general contractor on the construction job of the new Methodist Hospital in San Antonio, Bexar County, Texas. Leland Hastings was the sub-contractor to do the plastering on this construction job, and Cantu was an employee of Hastings. The plaster mixer had been placed about ten feet from this hole in the basement floor so that after the mortar had been mixed it could be run through a chute into the sub-basement. Cantu was familiar with the premises and had been working around the plaster mixer for several days. At first the mortar had been run through a chute in the elevator shaft, but the shaft was needed by other workers, so the mixer was moved to a new location about ten feet from the hole in the floor through which Cantu fell. The rope that broke was a new rope belonging to Leland Hastings, and Walsh & Burney Company was in no way responsible for the rope. The hole was open and obvious, and Cantu knew the hole was not covered and did not have a guard rail around it. Leland Hastings did not have authority to cover the hole or place a guard rail around it, only Walsh & Burney Company had authority to do that.

Appellant knew he was working next to the hole, because he had been working there for two days. He helped place the plaster mixer where it was, and helped place some boards over the hole to hold the chute in place. The hole was necessary in order to get the plaster into the subbasement where it was needed. The open unguarded hole was as well known and as obvious to appellant as it was to appellee, therefore, appellee did not owe appellant any duty to warn him about the hole or to place a guard rail around it. Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372.

The judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    L. H. KUDER et ux., Appellants, v. A. J. CRAWFORD et al., Appellees.
    No. 7461.
    Court of Civil Appeals of Texas. Amarillo.
    April 26, 1965.
    H. B. Porter, Dumas, for appellants.
    Lovell & Lyle, Dumas, for appellees.
   NORTHCUTT, Justice.

On or about February 4, 1963, L. H. Kuder filed a suit in Cause No. 4014, styled L. H. Kuder v. Jerry Powell and A. J. Crawford, in the District Court of Moore County, Texas, seeking to enjoin the defendants from selling certain property known as Lots 9, 10, 11, and 12, Block 151 of the original town of Dumas, Moore County, Texas, under a deed of trust.

The defendant, A. J. Crawford, appeared and answered plaintiff’s original petition in said Cause No. 4014 by a general denial and cross-action against plaintiff, L. H. Kuder, to recover the sum of $56,529.75, as evidenced by two certain promissory notes and to foreclose the deed of trust lien securing the payment of said notes. Powell, being the trustee in said deed of trust, and having no interest in this appeal, will not be considered any further herein.

No trial was had in Cause No. 4014 but a consent judgment was entered therein on May 2, 1963. Thereafter, on June 11, 1963, L. H. Kuder and wife Earline Kuder, by and through a different attorney, filed in Cause No. 4014 their motion stating the consent judgment should be reviewed and also asked the court to set aside said consent judgment and grant them a new trial and for general relief. A hearing on said motion was set for July 11, 1963, at 10:00 o’clock a. m. On that same date, July 11, 1963, the court entered its order holding the court no longer had jurisdiction in the case to make any findings whatever. The judgment having been signed and executed more than thirty days before the filing of the request to set said judgment aside, the judgment had become final and the court had no right to set the same aside only by proper pleadings and evidence showing meritorious defense which the applicant was prevented from making by fraud, accident or wrongful acts of the opposite party unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996. The plaintiff excepted to such order and gave notice of appeal but never perfected his appeal.

On August 2, 1963, Mr. Kuder and wife, Earline Kuder, filed suit in Cause No. 4127 styled L. H. Kuder and wife, Earline Kuder v. A. J. Crawford and Jerry Powell, in the District Court of Moore County, Texas, involving the same issues as those determined in Cause No. 4014.

The consent judgment entered on May 2, 1963 recited: “This cause came on for trial, and came the plaintiff, L. H. Kuder, in person and by his attorney of record, and also came the defendant, Jerry Powell, in person and by his attorney of record, and also came the defendant, A. J. Crawford, in person and by his attorney of record. * * * ” The consent judgment further provided: “The parties, and each of them, in open court, by and through their respective attorneys, announced that they had agreed upon a settlement of all matters and controversies involved in this suit upon the following basis:” (Emphases ours.) The judgment then set out in full the terms of the agreement. The judgment was signed and executed on the same day the agreement was made in open court and also entered of record, all as provided by Rule 11, Texas Rules of Civil Procedure.

Rule 306a provides: “In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein.” The judgment here involved shows to have been signed May 2, 1963. On June 11, 1963, Kuder filed his motion praying that the consent judgment be set aside; that a new trial be granted; and for general relief. At the time of making such motion for new trial the consent judgment had become final under Rule 329-b, Section 5. Thereafter, the motion was heard and the court held it no longer had jurisdiction in the case to make any findings whatever. From that order Kuder gave notice of appeal but never perfected his appeal. The motions filed in Cause No. 4014 and No. 4127 seeking to set aside the consent judgment involve the same matters and will be considered as bills of review. If the first motion was considered as a motion for new trial; naturally, said motion would be too late as the judgment had already become a final judgment. After the court had overruled the first bill of review and Kuder having excepted and given notice of appeal but failed to perfect his appeal, he could not be heard to complain by filing another bill of review covering the same matters.

It is stated in the case of Alexander v. Hagedorn, supra, 226 S.W.2d at 998, as follows:

“Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, er. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments ‘are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Harding v. W. L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964. As said by the Supreme Court of California, ‘Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.’ Pico v. Cohn et al., 91 Cal. 129, 25 P. 970, 971, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159.”

Appellants did not comply with the rules set out in the above mentioned case.

We do not believe under this record appellants have complied with the rules of proof nor procedure to entitle them to the relief sought.

Judgment of the trial court is affirmed.