author: BARCUS, J.

text:
    SAN ANGELO PROGRESSIVE LOCAL MUT. AID ASS’N v. KEEL.
    No. 1065.
    Court of Civil Appeals of Texas. Waco.
    May 28, 1931.
    Rehearing Denied July 9, 1931.
    Upton & Upton, of San Angelo, for appellant.
    Williams, Williams, McClellan & Lincoln, of Waco, for appellee.
   BARCUS, J.

This is an appeal from an order of the trial court overruling appellant’s, plea of privilege. Appellant is a corporation, with its principal office and place of business in Tom Green county. Appellee for cause of action alleged that he held a certificate of insurance issued to him in 1925 by the San Angelo Progressive Local Mutual Aid Association, an unincorporated company, that in 1929 said Mutual Aid Association was duly incorporated, and that it did thereafter in December, 1929, cancel said policy. He alleged that said insurance policy provided for payment to him of $2,000 in case oi total disability, that he had become totally disabled before the policy was canceled, and that by reason of said cancellation he had been damaged $2,000.00, for which he sued the corporation.

Appellant filed its plea of privilege in statutory form. Appellee filed what he claims is a controverting affidavit. Appellant contends that the controverting affidavit as filed by ap-pellee was not sufficient because it was not properly verified, and he contends the trial court erroneously permitted appellee to amend his controverting affidavit. In view of our disposition of - the case, we do not deem it necessary to, and we do not, pass on these propositions.

Appellant further contends that the trial court committed error in overruling his plea of privilege because there was no evidence to support the controverting affidavit as filed by appellee. We sustain this proposition.

Appellee testified as a witness for himself. The only testimony relative to his physical condition was his statement: “My health is not as good now as it was when I first got the original policy” (in 1925). He did not claim to be either partially or totally disabled under the terms of the policy; neither did he testify that he had attempted to get any additional insurance or that he had been in any way damaged or injured by reason of the alleged cancellation of his insurance certificate. The law is well settled that, before the trial court is authorized to overrule a statutory plea of privilege, the plaintiff in the trial court must file a controverting affidavit showing jurisdiction in said court, and must by evidence establish a prima facie showing that he has a bona fide cause of action, and that the trial court has jurisdiction to hear and determine the cause. Article 2007, Revised Statutes; Thompson v. Trentham (Tex. Civ. App.) 17 S.W.(2d) 130; Justin McCarty, Inc., v. Ash (Tex. Civ. App.) 18 S.W.(2d) 765; Austin v. Bearden (Tex. Civ. App.) 18 S.W.(2d) 857; Johnson v. Dallas Cooperage & Woodenware Co. (Tex. Com. App.) 34 S.W.(2d) 845.

The judgment of the trial court is reversed, with instructions to the trial court to trans-tor the case to Tom Green county.


source: Caselaw Access Project

author: HALL, C. J.

license: Public Domain

text:
    BANKERS LLOYDS v. POLLARD.
    No. 3577.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1931.
    Rehearing Denied July 11, 1931.

      Mathis & Caldwell, of Wichita Falls, and Orate Dalton, of Dallas, for appellant.
    Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellee.
   HALL, C. J.

This suit arose under the Workmen’s Compensation Law (Rev. St. 1925, art. 8306 et seq. as amended). The appellee alleged that he was injured while he was an employee of G. M. Hamer, a subscriber under the act. That the appellant insurance company had issued a policy to Hamer as subscriber, which was in full force and effect on October 31,1929. That on said last-named day plaintiff, as employee of Hamer under a verbal contract of hire, while driving a truck for his employer, was earning $35 per week, “which was the usual and customary wage which an employee of the same place of that of the plaintiff herein earned in the same or similar employment for twelve months preceding the day of the injury to plaintiff.” He alleged that while engaged in the course of his employment he suffered a right inguinal hernia. That said hernia appeared suddenly and immediately and caused him great pain and required the services of a doctor. That he gave due notice of the accident, requested that he be operated upon, which was refused, and that as a result of such injury and accident he was permanently and totally incapacitated and disabled. That on the 20th day of February, 1930, the Industrial Accident Board entered its final ruling, and in due time thereafter plaintiff gave notice of appeal and did appeal from said ruling. He prays that he be awarded a lump-sum settlement with 6 per cent, discount, and in the alternative alleged that if he is not totally and permanently disabled, that- he has suffered a 50 per cent, permanent partial disability and prays for judgment accordingly.

The defendant answered, denying that the injuries complained of by plaintiff were received in the course of his employment. That they did not result in hernia, but that said hernia had existed long prior -to October 31, 1929, and that it did not appear suddenly or immediately, and that plaintiff did not suffer any pain at the time of the alleged injuries.

A trial to the jury resulted in a verdict and judgment in favor of appellee, awarding him $0,628.19, payable in a lump sum, with, interest and costs. The jury found that plaintiff was totally and permanently disabled.

The first contention to be considered relates to the insufficiency of appellee’s petition in that it did not allege that he had worked in the Same or similar employment for substantially a year prior to his injury, was defective in not alleging the wages earned by him or other employees in similar work, and contained no allegation of the time when he commenced to work for Hamer or that he had worked substantially for a year for Ham-er or in similar employment in the same locality.

No demurrers or exceptions were urged to the petition because of these alleged defects, and no objection was made to the testimony offered, showing the period of time appellee had been engaged in the same employment or the amount earned by him during the twelve months next preceding the injury. The testimony shows without contradiction that he had been residing in Wichita county since 1920, during all of which time he had been employed as a truck driver. It further showed that during the year immediately preceding his injuries he worked every day, including Sunday, and had received for his services $5 per day. If appellant had urged exceptions to the petition upon-the grounds insisted upon here, the court doubtless would have sustained them, but they must be considered as waived, and the defects, not being jurisdictional, cannot be urged upon appeal, since they are cured by the verdict. General demurrers, though pleaded, which were not presented and urged in the court below or disposed of by proper orders, are deemed to be waived upon the theory that everything possible must be presumed in aid of the petition. Southern Surety Co. v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533. See also Ayres v. Ayres (Tex. Civ. App.) 32 S.W.(2d) 655, where it is held, even in a divorce suit, that if the issues joined necessarily required proof of facts imperfectly stated or even omitted in the petition, the defect is cured by the verdict if the facts established by proof offered are not challenged by the appellant. Especially is this the rule in actions arising under the Workmen’s Compensation Act where the construction of the pleadings must be liberally made in favor of the complainant. Southern Casualty Co. v. Weaver (Tex. Com. App.) 273 S. W. 838.

Proof that the appellee had been working for one year and longer next preceding the injury at $5 per day, including Sunday, is proof that his weekly wage was $35. Howard v. Texas Employers’ Insurance Ass’n (Tex. Com. App.) 292 S. W. 529.

The judgment is for a lump sum based upon appellee’s right to recover $20 per week for a period of 400 weeks, aggregating $6,628.19, and we think the amount decreed is approximately correct. Plaintiff did not specifically pray for interest and was not entitled to recover interest on the sum awarded, from the date of the injury to the day judgment was rendered. Standard Acc. Ins. Co. v. Stanaland (Tex. Civ. App.) 285 S. W. 878. According to our calculations, this interest has been included in the judgment. Even with the interest included, the judgment seems to be approximately $100 less than the appellee was entitled to recover, and appellant cannot, therefore, complain.

The appellant assigns error to the action of the court in submitting the issue whether the appellee’s hernia appeared suddenly and immediately following the injury to plaintiff. Objection was made upon the ground that the jury might have found a sudden appearance and that it did not appear immediately. The appellant’s answer specially alleged that the hernia did not appear immediately following the act of appellee in lifting the tongue of the trailer to his truck, this being the effort which plaintiff contended caused the hernia. In a separate paragraph appellant further alleged that the hernia did not appear suddenly following the lifting of the tongue of the trailer. The testimony hearing upon each of these issues and as elicited from appellee is as follows: “I received my rupture on October 31, 1929. * ⅜ * Xn October, at the time I was injured, I was lifting a trailer tongue at the time I got hurt and I felt a pain there and it pained me all day. I felt the pain at the time I lifted this trailer. I felt the pain right here in the right pelvic region, what I call my groin, in the right groin. * * * After I had this pain in my groin, I went on to Megargel, as there was no one else there to take my place. * * * I was in great pain during that trip and I had a sick spell. * ⅜ ⅜ xvhen I got home that night I went to bed and,next morning I went to see Dr. Burton.”

We think this testimony is sufficient to sustain the jury’s finding that the symptoms of the hernia appeared suddenly and immediately after the injury. In the original opinion we reversed the judgment because the court submitted in one issue whether the hernia appeared suddenly' and immediately. In the light of a carefully prepared and persuasive motion for rehearing, we have reviewed the record and the authorities cited and have concluded that we were in error in basing our reversal on the insufficiency of the evidence and the submission of the issues together. It will be observed that this issue, No. 4, is in the exact language of subdivision 2, § 12b, of article 8306 of the Revised Statutes. In order for the plaintiff to recover, he must prove that the hernia resulted both suddenly and immediately, and there is no reason why they should be submitted dis-junctively. The court did not instruct the jury that the issue as submitted must be answered either affirmatively or negatively. The instruction is: “Answer as you find the facts to be.” If it be held that the issue is duplicitous, the effect would be to thereby place a burden upon the plaintiff, of which the plaintiff only could complain. We have concluded, however, that the issue is not duplicitous and does not come within the rule announced in Fox v. Dallas Hotel Co., 111 Tex. 475, 240 S. W. 517. Be that as it may, the error, if any, in placing an additional burden upon the plaintiff, is not a matter of which the defendant, the appellant herein, can complain. Texas Electric Ry. v. Jones (Tex. Civ. App.) 262 S. W. 131; Northern Texas Traction Co. v. Jenkins et al (Tex. Civ. App.) 266 S. W. 175; Southern Surety Co. v. Solomon (Tex. Civ. App.) 4 S.W.(2d) 599; Texas Employers’ Ins. Ass’n v. Heuer et al. (Tex. Civ. App.) 10 S.W.(2d) 756; Texas Pacific Coal & Oil Co. v. Grabner (Tex. Civ. App.) 10 S.W.(2d) 441.

The record shows that appellee requested that he be operated upon for hernia and appellant denied the request. Therefore, the limit of 26 weeks, plus the cost and expense of an operation, has no application. Ellis v. United States Fidelity & Guaranty Co. (Tex. Civ. App.) 6 S.W.(2d) 811; Columbia Casualty Co. v. Ray (Tex. Civ. App.) 5 S.W.(2d) 230.

The court did not err in refusing to define the word “permanent.” Bishop v. Millers’ Indemnity Underwriters (Tex. Civ. App.) 254 S. W. 411; Employers’ Casualty Co. v. Scheffler (Tex. Civ. App.) 20 S.W.(2d) 833.

The motion for rehearing is granted. The original opinion is withdrawn, and the judgment is affirmed.

Affirmed.'


author: BEVY, J.

text:
    NEVILL v. PERKINS.
    No. 3946.
    Court of Civil Appeals of Texas. Texarkana.
    June 4, 1931.
    Rehearing Denied June 18, 1931.

      H. L. Carpenter, Neyland & Neyland, and Clark, Harrell & Clark, all of Greenville, for appellant.
    Smithdeal, Shook, Spence & Bowyer, of Dallas, and L. L. Bowman and B. M. Mc-Mahan, both of Greenville, for appellee.
   BEVY, J.

The appellant, as trustee in bankruptcy of S. B. Brooks, brought the suit against the ap--pellee in remedy by way of cancellation of three certain deeds of trust dated respectively January 4, 1925, October 5, 1926, and October 21, 1927, securing certain mentioned indebtedness. The allegations, in effect, are that the deed of trust executed by S. B. Brooks to the appellee are voidable as to creditors because (1) the dates appearing on the face of the deeds of trust were not true, but were antedated, and the deeds of trust were, in fact, executed at a date within four months of the filing of the petition in bankruptcy, the defendant having reasonable ground for belief that S. B. Brooks was insolvent, and that giving him a lien upon real estate by deed of trust to secure the indebtedness pet out would effect a preference lien over other creditors of the same class, and (2) the consideration for the deeds of trust was illegal, being money advanced and provided for speculation in illegal transactions. It was further pleaded, in effect, that the defendant was estopped from enforcing the deeds of trust as valid liens against the general creditors of the bankrupt, S. B. Brooks, because (1) the defendant and S. B. Brooks with common design and purpose acted together in concealing the facts of the insolvency of S. B. Brooks, by withholding from record, and by failure to record, the deeds of ■trust with the view of not impairing th'é credit of S. B. Brooks, and (2) the defendant intentionally assisted and agreed with S. B. Brooks to withhold the deeds of trust from record so as not to impair and for the enhancement of the credit of S. B. Brooks and to give S. B. Brooks a fictitious credit, and (3) because by the negligent acts of the defendant of withholding from the record, and the concealment of the execution of the deeds of trust, persons who were unsecured creditors were induced to give credit to S. B. Brooks. The petition also sought to recover the rents arising from the real estate covered by the deeds of trust collected by the defendant since the filing of the petition in bankruptcy of S. B. Brooks.

The defendant pleaded facts that go in special denial of the allegations of the petition.

On December 30, 1927, certain unsecured creditors of S. B. Brooks filed a petition asking that he be adjudged a bankrupt, and on January 28, 1928, he was formally adjudicated a bankrupt The appellant was appointed and qualified as the trustee. At the time of the bankruptcy S. B. Brooks was indebted to various banks and persons in unsecured claims in the amount of- $279,363.92, and in secured claims in the amount of $37,-805.58. The assets of the estate, above the property covered by the deeds of trust in suit, totaled $11,810, and were all incumbered “greater than the value.” In addition to the above indebtedness owed by 8. B. Brooks was the indebtedness claimed by the appellee, and purporting to be secured by the three deeds of trust in suit, totaling about $114,000. The deed of trust appearing as first executed to the defendant by S. B. Brooks bears the date of January 4, 1925. As this instrument recites the cofisideration therefor was “the sum of $1.00” and “for the further purpose of securing said S. B. Perkins for any sums of money he may have or may hereafter advance to me by-open account, note, or otherwise.” At the time of the trial some fourteen notes aggregating about $85,000 was claimed to be owing. The second deed of trust was executed by S. B. Brooks to secure, as recited, payment of $20,000, evidenced by note. The deed of trust bears date of October' ⅜, 1926. The third deed of trust was executed by S. B. Brooks to secure, as recited, payment of $9,-000, evidenced by note. The deed of trust bears date of October 21, 1927. The three deeds of trust were all filed for record by defendant on the same day of “the 8th day of December, 1927.”

It was proved that for some years prior to the date of the bankruptcy, S. B. Brooks was the cashier of the First National Bank of Greenville. The First National Bank of Greenville, because of insolvency, went into liquidation on December 24, 1927. S. B. Brooks was believed to be prosperous and well-to-do financially up to the time of the liquidation of the hank. He was generally reputed to be a successful business man, and to have accumulated a lot of property in real estate, bonds, and stocks, including a number of shares in the bank of which he was an official. Many people, as shown, dealt with S. B. Brooks for and during a considerable period of time before the bank failure, and loaned him money in the belief and understanding that he was wholly solvent, and had not executed any deeds of trust upon his property. As a fact, as the evidence shows, S. B. Brooks had borrowed money and was owing various banks and persons a very considerable sum of money before the bank failure. The evidence goes to show that he was insolvent for at least more than a year before the bank failure. Erom 1924 until December, 1927, ¿s shown, S. B. Brooks bought and sold cotton, wheat, stocks, and other commodities on the different exchanges. The defendant testified that he loaned and procured for S. B. Brooks money at various times and aggregating a considerable amount. S. B. Brooks, it would seem, used the money in his various operations on the exchanges. In some of the transactions on the exchange S. B. Brooks and the defendant had joint and equal interest. As testified by the defendant, “Yes, we shared fifty-fifty in transactions where I had an interest.” These joint transactions were in cotton, wheat, and stocks, part of the purchase price being paid when the order of purchase was given, and the “margin” paid when required. The defendant stated that he loaned and procured for S. B. Brooks as much as $80,000 “on the same day,” which was March 17, 1925. Although not shown in affirmative testimony, yet the conclusion rests in inference arising from the evidence, that, at or about the time of the execution of the several notes involved in this suit, the defendant and S. B. Brooks had transactions in commodities on the exchange. The jury would be authorized to infer, as in their province, from the evidence as a whole that the defendant provided and advanced money at many times to S. B: Brooks, for the specific purpose of being used on the exchange for gain and benefit through pure speculations, where actual delivery of the commodities was not contemplated. While the defendant denied that he knew that S. B. Brooks “was insolvent,” yet he says that he did know that “he was not in good financial condition” for more than a year before the petition in bankruptcy was filed. In a letter of January 5, 1928, the defendant wrote the addressee of the letter: “If you will remember, more than a year ago you wanted me to make some loans to Mr. Brooks which I declined to do, for the reason that I knew that he was in bad financial condition, but I could not tell you more than I did.” An extended statement of the evidence is not undertaken to be set out, and merely the pertinent substance and effect is outlined.

The ease was submitted to the jury upon special issues. The findings of .the jury are, in effect, that (1) at the date of the deed of trust of January 4, 1925, S. B. Brooks was not insolvent; (2) that the various sums of money referred to in the deed of trust of January 4,1925, were not used for the joint benefit or gain of S. B. Brooks and the defendant through illegal speculations; (3) that the deed of trust of January 4, 1925, was not withheld from the record with the view or purpose of not impairing the credit of S. B. Brooks; (4) that there was no agreement or understanding between defendant and S. B. Brooks to withhold from record the deeds of trust of January 4, 1925, and October 5, 1926, or either one of them.

The decree of the court established the indebtedness owing the defendant, and the lien of the deeds of trust as valid and existing, and foreclosed the liens on the property mentioned.

At the time the main charge of the court was submitted, the appellant entered the special objection, and here predicates error upon “requiring an answer to issue No. 6 only in the event the jury answers No. 5 ‘Yes.’ ” The court’s instructions to the jury' that were excepted to read:

“Question No. 5: Were the various sums of money advanced to S. B. Brooks by S. B. Perkins, and referred to in the deed of trust of date January 4,1925, used by S. B. Brooks for their joint benefit in illegal speculations, as that term is defined in paragraph two of this charge? Answer ‘Yes’ or ‘No’ as you may find the fact to be.
“If you have answered the next preceding question ‘Yes,’ then you will answer the following question, but if you have answered it ‘No,’ then you need not answer the following question.
“Question No. 6: Did S. B. Perkins make the different advancements of money, which the deed of trust dated January 4, 1925, intended to secure, in order that S. B. Brooks might use the money in illegal speculations? Answer ‘Yes’ or ‘No’ as you may find the fact to be.”

The appellant also predicates error upon the refusal to give the requested special issue reading: “Qu'estion No. 9: Did S. B. Perkins make the different advancements of money to S. B. Brooks, as shown by the evidence, with the intention and expectation that the said S. B. Brooks would repay said monies earned from illegal speculation, as that term is defined in paragraph two of the main charge?”

It is believed by the court that the above assignments of error should be sustained, as substantial error requiring a reversal of the judgment.

In his suit, the trustee seeks to vacate the deeds of trust in evidence as being fraudulent conveyances against creditors, upon the ground, besides others, that the debts for which the deeds of trust were given constitute an illegal consideration. The allegations were, in effect, that the consideration for the deeds of trust was money advances and provided for benefit and gain through illegal speculations in commodities. And the above three questions referred to were intended to cover the three distinct and separate phases involved in the alleged illegal consideration, as viewed from the evidence. Speaking broadly of the facts, it may not fairly be said, as we conclude, that the three distinct issues did not fairly arise from the evidence. Question No. 5 required the jury to make findings concerning whether or not there was advancements of money by defendant to be used by S. B. Brooks for “their joint benefit” or gain -through illegal speculations. Question No. 6 required the jury to make findings concerning- whether .or not there was advancement of money by defendant for use by S. B. Brooks for his own separate gain or benefit through illegal speculations. The two questions ‘ relate to distinct transactions. The ninth question required the jury to make ¡findings concerning still another method or transaction of whether or not there were advancements of money by the defendant, upon the understanding of the repayment of such advancements out of the gains of “illegal speculations.” See 27 C. J. § 209, p. 527; Ibid, § 304 p. 1074; Lewis v. Alexander, 51 Tex. 578; Cleveland v. Taylor, 49 Tex. Civ. App. 496, 108 S. W. 1037; and other cases.

In view of the reversal, the further assignments of error are not deemed necessary to be discussed. It will be observed in passing, however, that the deeds of trust, especially the one of January 4, 1925, was not registered until the 8th day of December, 1927. Two issues respecting the failure to record the deeds of trust were submitted to the jury, but the vital issue of negligent failure to record was not, and had it been requested should have been, submitted to the jury for finding thereon. The evidence goes foreeably to show that the defendant knew of the bad financial condition of S. B. Brooks for at least a year before the adjudication of bankruptcy. His-failure to record the deeds of trust during that whole period of time presented a matter of jury finding of negligence or not. It is the policy of the law to encourage prompt recording of instruments affecting the title to real estate. The statute has expressly stated the consequences which result, as a matter of law, from the failure to record deeds of trust. Article 6627, R. S. And the fraudulent conveyance as to general creditors may take the form of concealment of insolvency by either intentional or negligent failure to record a deed of trust. Clayton v. Bank of Macon (C. C. A.) 121 F. 630; Manders v. Wilson (C. C. A.) 235 F. 878; Hutchinson v. Bank, 133 Ind. 271, 30 N. E. 952, 36 Am. St. Rep. 537.

The judgment is reversed, and the cause remanded for another trial.


author: FLY, O. J.

text:
    DELTA ORCHARDS CO. v. GREGORY et al.
    No. 8605.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    Rehearing Granted and Judgment Affirmed June 10, 1931.
    Rehearing Overruled July 8, 1931.
    Jesse G. Foster, of Raymondville, for appellant.
    Bryce Ferguson, of Edinburg, and Toni L. Hartley, of Pharr, for appellees.
   FLY, O. J.

Appellees applied for writs of garnishment against appellant and Lloyd M. Bentsen, alleging that they had instituted a suit against T. W. McNear. There were two suits in garnishment against appellant by appellees, which were consolidated. After the garnishment suits were filed, appellees recovered judgment against McNear. The ground of dispute is that a judgment by default was taken by appellees, the claim being that appellant was not cited according to law.

The facts are that on August 8,1930, two citations were left in the office of the vice president and sales manager of appellant, at Ray-mondville, Willacy county, Tex. The citations were not delivered by the sheriff to any one, but were left in the office with the stenographer of the sales manager. The manager received the citations on August 31, and the judgment by default was rendered on September 2,1930.

The statute (article 2029, R. S.) as to service on joint-stock companies and incorporated companies is as follows: “In suits against any incorporated company or joint stock association, the citation may be served on the president, secretary or treasurer of such company or association, or upon the local agent of such company or association in the county where suit is brought, or by leaving a copy of the same at the principal office of the company during office hours. If neither the president, secretary or treasurer reside in the county in which suit is brought, and such company or association has no agent in the county, then the citation may be served upon any agent representing such company or association in the State.”

The first part of the statute quoted is confined to officers and agents in the county in which the suit was instituted, and it is apparent from the record in this case that there was no officer or agent, and necessarily no general office, in the county where the suit was instituted. The latter part of the article confines the first part to officers or agents in Hidalgo county, where the suit was pending. The statute gives no authority for service by leaving citations in a general office, except where that general office is in the county where the suit is pending, and under the facts of this ease the service could only be had by delivering the citations to an agent of the company anywhere in the state. The citations were not delivered to any such agent, as, clearly appears from the return of the sheriff. If the answer had been received from Austin in time and had been filed, service would have been waived and appellant would have been legally in court. No answer, however, was filed. The motion to set aside the judgment by default should have been granted.

The judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

The construction of the statute in the original opinion is erroneous; The statute applies to the principal office in a county other than the one in which the suit was instituted and the citation left in the principal office in Wil-lacy county was valid service.

A rehearing is granted, our former judgment set aside, and the judgment of the lower court is affirmed.


author: SELLERS, J.

text:
    HUMBLE OIL & REFINING CO. v. LUTHER et al.
    No. 3994.
    Court of Civil Appeals of Texas. Texarkana.
    May 14, 1931.
    R. E. Seagler, of Houston, and Ramey, Calhoun & Marsh, of Tyler, for appellant.
    Lanham Croley and J. P. Rice, both of Dallas, W. E. West, of Canton, Vinson, Elkins, Sweeton & Weems, of Houston, and Wynne & Wynne, of Wills Point, for appellees.
   SELLERS, J.

This action was instituted by the appellant, Humble Oil & Refining Company, as plaintiff, on January 27, 1930, in tlie district eonrt of Van Zandt County, Texas, against appellees <3. J. Luther and wife, Imperator Oil Corporation, and W. A. Southworth, as defendants, to reform an oil, gas, and mineral lease theretofore executed by the defendants G. J. Luther and wife, as lessors, on April 26, 1928, in favor of J. K. Lewis, as lessee, covering certain lands and premises situated in Van Zandt county, Tex., which said lease, by due assignment from said lessee, appellant had thereafter acquired. As grounds for said action, the appellant alleged that, due to a mutual mistake of the parties to said lease, the same failed to describe accurately all of the lands and premises which were intended by such pai'ties to be covered and affected thereby, and appellant sought to have the description in said lease corrected and reformed so that the same should reflect the true and correct description of said premises according to the intention of the parties thereto. Appellant further alleged that the defendants Imperator Oil Corporation and W. A. Southworth, were asserting some right, title and interest in and to the oil, gas, and mineral leasehold estate in and to said premises, but averred that such claims and titles of said defendants .were in all things inferior •and subordinate-<to the claims and titles of the plaintiff thereunto and constituted a cloud upon plaintiff’s title to said leasehold estate, which plaintiff sought thereby to have removed. ■ .

The appellees G. J. Luther and wife answered denying the allegations in appellant’s pleadings, and alleged that it was not the intention of the parties to the aforesaid lease that the same should cover and affect more than 32 acres of land out of the William Daniel Survey, and that all lands owned by said defendants in excess of said 32 acres in the said Daniel survey was not subject to plaintiff’s lease. Said appellees further alleged, that, in addition to the said 32 acres of land above mentioned, they also owned a 6-acre tract of land and a 3.01-acre tract of land in the J. Goodman survey which were not affected by appellant’s lease and that subsequently, on January 16, 1930, said appellees had leased in good faith said 3.0i-acre tract to the defendant Imperator Oil Corporation.

The appellees Imperator Oil Corporation and W. A. Southworth filed answers denying the allegations in appellant’s petition, and alleged that said Imperator Oil Corporation on January 6, 1930, had procured for valuable consideration an oil lease from the appellees G. J. Luther and wife covering said 3.01-acre tract, and that subsequently said lease was transferred for convenience by said Imperator Oil Corporation to W. A. Southworth, but that the said W. A. Southworth in fact held said lease for the use and benefit of the said Imperator Oil Corporation. Said appellees allege that their said lease upon said 3.01-' acre tract was in all things valid and subsisting and that the same was acquired for valuable consideration and without notice that the appellant, Humble Oil & Refining Company, claimed any lease or interest upon the premises affected thereby.

The facts of this case disclose that appel-lees G. J. Luther and wife purchased the land in controversy from W. S. Brannon and wife on October 3, 1925, and that the deed described the land as follows: “All that certain lot, tract or parcel of land, and being a part of the William Daniels Headright Survey granted by letters patent by the State of Texas 143, Yol. 10, and recorded in .the Clerk’s office of Van Zandt County, Texas, in Book -page-, and bounded'as follows: Beginning at the N. W. corner of 171 acres conveyed to W. G. Carter by Mary E. Mur-phee, by deed dated March 7th, 1883, a B. J. 12 in. dia. vrs. S. 14 E. 7 vrs. do 6 in. dia. vrs. S. 68 E. 7½ vrs. which B. J.’s are marked X 7 vrs., the other X 7 vrs. 10 degs. 23 vrs; thence West 256 vrs. to corner; thence about 50 vrs. on the John Goodman Survey for corner; thence North to branch then with the meanderings of said branch to the North line of tlie said William Daniels Survey 950 vrs. more or less, to the N. W. corner of tho South Division of said survey deeded by William Daniel to A. A. Nelson; thence East along the N. B. L. of said South Division to the N. W. corner deeded by S. M. Murphee to Samuel Cocker and his two sisters; thence South to the place of beginning, containing 47 acres, more or less, of land save and except 15 acres off the North end of said tract previously sold to J. D. Listenbee.”

Thereafter on April 26, 1928, G. J. Luther and wife executed to J. K. Lewis an oil, gas, and mineral lease, which, according to the terms of the lease, covered the following land: “All that tract or parcel of land containing 32 acres, more or less, out of the Wm. Daniel Survey as conveyed to G. J. Luther by W. S. Brannon and Una Brannon by deed dated 3rd day of Oct. 1925, and recorded in Yol.' 167, page 61, of the Records of Van Zandt County, Texas, to which deed and record thereof reference is here made for a more complete description and which description as therein shown is made a part hereof.”

J. K. Lewis assigned this lease to the appellant, Humble Oil & Refining Company. The consideration paid Luther for this lease was $2 per acre, and the number of acres for which he received pay was 32.

Some year or more after the above lease was executed, one C. Andrade, who was vice president of appellee Imperator Oil Corporation, advised G. J. Luther that he thought Luther owned more land than he had leased to J. K. Lewis, and' secured from Luther and wife an agreement to lease the excess in the tract of land to appellee Imperator Oil Corporation, and it was then that the Imperator Oil Corporation caused a survey of the land to be made which disclosed that Luther had under fence approximately 41 acres of land which he had gone into possession of under his deed from Brannon and wife, hut that the field notes in the deed from Brannon Only called for 32 acres in the William Daniel survey and approximately 6 acres in the J. Goodman survey, leaving a surplus of 3.01 acres in the J. Goodman survey not included in the description in the deed from Brannon to Luther, but was included within Luther’s fence. After this survey was made, Luther and wife executed to appellee Imperator Oil Corporation a lease upon the 3.01 acres of land for a consideration of $1,000 per acre;' $250 of this consideration was paid in cash and the balance was placed in a bank with the lease, to be paid to Luther and wife when title to the property had been approved by attorneys for the Imperator Oil Corporation and a permit was secured from the Railroad Commission to drill a well on the land. It was further agreed that, should any litigation arise the appellee Imperator Oil Corporation should pay all costs of the same, and that the lease should remain in the bank until such litigation was settled.

The trial was to a jury, and, after the evidence was heard, the court instructed a verdict for appellant for the 32 acres in the William Daniel survey and also the 6 acres in the J. Goodman survey which the description in its lease called for, and for appellee Im-perator Oil Corporation for the 3.01 acres of the J. Goodman survey which was not called for by the description of appellant’s lease.

It appears conclusively from the court’s charge in instructing the jury that appellee Imperator Oil Corporation took its lease on the 3.01 acres of land for a valuable consid: eration from G. J. Luther and wife without notice, either actual or constructive, of appellant’s claim to same, and that the evidence raised no controverting issue of fact for the jury to pass upon.

The holding of the trial court that there was no controverting issue of fact to be submitted to the jury is made the basis of appellant’s complaint on this appeal. Appellant insists, the evidence being undisputed, that appellee Imperator Oil Corporation paid appellees Luther and wife only a small portion of the agreed consideration for the oil lease upon the land in controversy at the time of the execution and delivery of same and agreed to pay the principal consideration thereafter when and in the event the title to said lease should be approved and any litigation arising should be settled- was sufficient to raise an issue of fact to go to the jury as to notice of the appellee Imperator Oil Corporation of appellant’s claim to the land in controversy.

With this- contention we .cannot agree. As we view these matters, they are nothing more, than precautions which any purchaser of a lease should take to protect himself. And the fact that appellee Imperator Oil Corporation took such precautions should not be treated as evidence authorizing a jury to find it. had notice of a secret agreement between appellant and appellees Luther and wife that such land was omitted from appellant’s lease by mutual mistake. We are unable to find any evidence in this record that could be construed as giving the appellee Imperator Oil Corporation actual notice of appellant’s claim to the land in controversy.

It is also contended by appellant- that its lease contained such an- ambiguous description of the land affected thereby that the recording of its lease was sufficient to put subsequent purchasers on inquiry as to the intent of the parties to said lease that same comprises more land than was actually described therein. As we understand appél-lant’s position, it is that the call in the description of the land contained in its lease (quoting), “Thence about 50 varas on the John Goodman Survey for corner,” makes the description'ambiguous. In determining whether this call in the description makes it ambiguous, it will be necessary to determine what legal effect the word “about” should be given as used in that call in the description of the land. It seems well settled by the authorities that, where the word-“about” is used as it was here used, it will be disregarded in determining the distance called for, and' the distance will be treated as positively 50 varas. Words and Phrases, First Series, vol. 1, page 21, and authorities there cited. Eliminating, then, the word “about” from the description of the land contained in appellant’s lease, said description would not be ambiguous, and would therefore be no notice to the appellee Imperator Oil Corporation.

Finding no errors in the record, we are of the opinion that the judgment should be affirmed, and it is so ordered.


author: GALLAGHER, C. J.

text:
    WHITE v. NAVARRO COUNTY et al.
    No. 974.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1931.
    Davis, Jester & George, of Corsicana, for appellant.
    Richard & A. P. Mays, of Corsicana, for ap-pellees.
   GALLAGHER, C. J.

This suit was instituted by appellant, Fred AVhite, against appellees Navarro County and the Several members of the commissioners’ court of said county in their respective official capacities, to recover the sum of $2,892.67, which he alleged was owed him as compensation for certain services rendered by him as tax collector of said county. Appellant alleged that he was the duly elected, qualified, and acting tax collector of said county from December 1,1920, to December 31,1924; that during his entire term of service as such, officer he was subject to the terms and provisions of the maximum fee bill; that from December 1, 1920, to November 30, 1923, he earned as fees and commissions for preparing delinquent tax rolls and collecting delinquent taxes the sum of $3,874.74; that he was entitled under the provisions of section 3 of chapter 147, General Laws 34th Legislature, Regular Session, 1915, to receive and retain such fees and commissions as compensation for his services in that connection, in addition to all other amounts allowed him under the provisions of the maximum fee bill; that, under the erroneous belief that said section 3 of the act aforesaid had been repealed, he considered the fees andfecommissions so collected subject to the provisions of the maximum fee bill and the amount of the same a part of the excess fees received by him over and above the salary allowed him under the provisions thereof; that, acting on said understanding and belief, he retained in his hands one-fourth only of said fees and commissions and paid the remaining three-fourths thereof, amounting in the aggregate to $2,892.67, into the treasury of said county. He further alleged that after the enactment of chapter 95, General Laws 41st Legislature, First Galled Session, 1929 (Vernon’s Ann. Oiv. St. Art. 7331a, note), he prepared a claim against said county for said sum so erroneously paid into its treasury by him as aforesaid and presented the same to the county auditor; that said claim was duly allowed by said auditor and then presented to the commissioners’ court of said county for allowance and payment, but that said court refused to allow or pay the same. Appellee's pleaded general denial and the statutes of limitation of two and four years, respectively.

The ease was tried to the court, and judgment rendered that appellant take nothing by his suit. Hence this appeal.

Opinion.

Appellant presents a group of assignments of error in which he assails the action of the court in denying him a recovery. The testimony showed without dispute that appellant was the duly elected, qualified, and acting tax collectqr for said years; that he prepared a delinquent tax roll for the years 1919 and 1920; that the Statutory fee therefor was $133.25 ; that he collected certain delinquent taxes during the years 1920 to 1923, inclusive, and that 5 per cent, commission thereon amounted in the aggregate to $3,774.-80; that he received his full salary for said years under the maximum fee bill exclusive of said fees and commissions; that he considered the same as excess fees and retained in his hands one-fourth thereof and paid the remaining three-fourths into the county treasury.

Our Supreme Court has held that the compensation allowed tax collectors under the act of 1915 above cited for preparing delinquent tax rolls and collecting delinquent taxes was intended by the Legislature to be in addition to the several amounts allowed to them under the provisions of the maximum fee bill. Curtin v. Harris County, 111 Tex. 568, 575, 242 S.W. 444. Said section of said act remained in full force and effect until the same was repealed by chapter 13, Genero al Laws 38th Legislature, Second Called Session, 1923, which became effective on the 15th day of August of that year. Appellant was by the act of 1929 above cited expressly authorized to sue for the recovery of the fees and commissions claimed by him in this case and erroneously paid by him into the county treasury under the mistaken belief that they were included within the terms of the maximum fee bill. The county was by the terms of said act denied the right to plead limitation as a defense to such claim. The conditional right of- action conferred on the respective tax collectors by that áct became vested when the same became effective. The repeal of said act by chapter 3, General Raws 41st Legislature, Fourth Called Session, 1930, did not destroy Such right. Appellant’s suit was pending at that time, and his rights were in no way affected thereby. Limestone County v. Robbins (Tex. Com. App.) 38 S.W.(2d) 580.

Appellant, to sustain his claim for commissions for the collection of delinquent taxes, should plead and prove affirmatively that he performed the additional duties required of him in such connection by the several provisions of said act of 1915. Curtin v. Harris County, supra, 111 Tex. p. 577, 242 S. W. 444; Limestone County v. Robbins, supra. He will in no event he entitled to recover commissions on delinquent taxes collected by him on or after the 15th day of August, 1923.

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


author: PER CURIAM.

text:
    SIMS et al. v. CALLIHAN et al.
    No. 785.
    Court of Civil Appeals of Texas. Eastland.
    June 5, 1931.
    For former opinion, see 39 S.W.(2d) 153.
    R. V. Armstrong and F. L. Henderson, both of Bryan, for appellants.
    Scarborough, Ely & King, of Abilene, for appellees.
   PER CURIAM.

The motion for rehearing is overruled, but the majority do not concur in all of the reasons assigned for overruling the motion in the 'opinion by Associate Justice Funderburk. The statement of facts has been read and reread by us, individually and collectively, and we all agree that there is no evidence that Weigel was the agent of appellants in making the drilling contract. Appellees testified to statements made by Weigel, to the effect that appellants were his associates, hut agency cannot be proved by declarations of the alleged agent. The existence of any debt whatever, and therefore of any lien whatever, depends upon evidence of the agency of Weigel to make the contract for appellants, and evidence of the fact that the contract was actually made by him for them. Finding no evidence of agency, or of any intention to bind appellants, there was no basis for the lien or the debt.

We express no opinion on the question of the quantum of proof required to sustain venue, as against a plea of privilege, óf a suit to foreclose a lien fixed by virtue of a written contract executed by the defendants in a foreclosure suit. It is recognized that the question is sometimes perplexing as to the quantum of proof required to sustain venue under the several exceptions. The case here presented is one in which there is no evidence, either of a debt owing by appellants or of a lien on any property owned by them. The ap-pellees therefore failed to meet the burden imposed by law upon them to overcome appellants’ right to a change of venue under their plea of privilege.


author: ALEXANDER, .T.

text:
    REALTY TRUST CO. v. GABERT et al.
    No. 1074.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1931.

      Goggans & Ritchie, of Dallas, for appellant.
    Williams, Williams, McClellan & Lincoln, of Waco, for appellees.
   ALEXANDER, .T.

The Realty Trust Company brought this suit against L. Gabert, and Hal Hood, as sheriff of Dallas county, to enjoin the levy of an execution issued for the collection of the court costs in cause No. 28280, styled L. Gabert v. F. E. Demmer et al., in the nineteenth district court of McLennan county, Tex. It appears that in 'said cause No. 28280 L. Gabert sued P. E. Demmer and Annie Dem-mer for debt and to foreclose a vendor’s lien, and Realty Trust Company as the holder of the second lien on the property. In that case .judgment was entered for the plaintiff, Gab-ert, against Annie Demmer for his debt in the sum of $3,568.95 and for foreclosure of plaintiff’s lien against all defendants. Realty Trust Company filed a cross-action, and judgment was entered in its favor against Annie Demmer and P. E. Demmer for its debt’ and foreclosure • of a paving lien as a second lien on the property. The judgment provided that all costs should be taxed against Annie Demmer and Realty Trust Company. The judgment further provided that order of sale should issue for the sale of the property and that the sheriff apply the proceeds of the sale, “first, to the payment of all costs incurred herein,- and second,, to the payment and satisfaction of the judgment rendered in favor of the plaintiff, L. Gabert, herein, amounting to the total sum of $3,568.95,’’ and third, to the judgment in favor of Realty Trust Company, and the balance, if any, to be paid to Annie Demmer. In the event the property did not sell for enough to pay all judgments therein rendered, the balance was to bé made as under execution against the defendant Annie Demmer. Upon a sale of the property by the sheriff under order of sale, it was purchased by L. Gabert for the sum of $500, and the proceeds of the sale applied, first, to the payment of the costs of suit, and the balance was credited on the judgment obtained by L. Gab-,ert. . Gabert then sued out an execution against Realty Trust Company and Annie Demmer for the costs of suit and placed same in the hands of Hal 1-Iood, as sheriff of Dallas ■ county, and was seeking to have same levied upon the property of Realty Trust Com.pany for the purpose of collecting the costs of suit. Realty Trust Company applied for an injunction to prevent a levy of the execution, on the ground, among other things, that the judgment for costs had been satisfied. Upon a trial before the court, the application for injunction was refused, and the plaintiff, Realty Trust Company, appealed.

The question involved in this appeal seems- to have been settled by the Commission of Appeals in the case of Gough v. Jones, 212 S. W. 943. In that case Mrs. Jones recovered judgment against Cobb for debt, and against Cobb and Gough, as a subsequent purchaser of the land, for foreclosure of her lien, and against both defendants, jointly and severally, for all costs, and directed that the property be sold and the proceeds applied, first, to the satisfaction of the judgment against Cobb and the costs of suit, and that the balance, if any, be paid to Gough, the owner of the land. In the event the land did not sell for enough to pay said judgment, the, balance was to he made out of defendant Cobb as under execution. The property sold for less than the amount necessary to pay the judgment against Cobb. The sheriff credited the proceeds to the payment of the judgment exclusive of costs. Mrs. Jones caused execution to issue against Gough for the costs of suit. The court held that Gough had the right to have the judgment for costs satisfied out of the proceeds of the sale of the property, and that, since the property brought enough to have paid the costs of suit, there was no basis for the issuance of an execution for the costs of suit. We think this case is decisive of the question before the court. City of San Antonio v. Campbell (Tex. Civ. App.) 56 S. W. 130; City of San Antonio v. Berry, 92 Tex. 327, 48 S. W. 496.

Whether a trial court has the right to render a judgment for all costs against the holder of a second lien and to require- such lien-holder to pay such costs independent of the amount for which the mortgaged property sells is not before the court. It is sufficient to say that this judgment required that the costs be paid out of the proceeds of the sale, which has been done, and the judgment for such costs has been fully satisfied. There is no basis for the execution against the Realty Trust Company in this case.

The appellees contend that, since the application for injunction herein was not applied for until more than one year had expired after the rendition of the judgment in the„main case, under Revised Statutes, article 4646, the appellant was not entitled to maintain its suit for such injunction. This article only applies to matters affecting the rendition of the judgment, and does not apply to matters that subsequently arise after the rendition thei’eof. Therefore it has no application in this case. Kruegel v. Rawlins (Tex. Civ. App.) 121 S. W. 216.

The judgment of the trial court is reversed, and judgment is here rendered in fav- or of appellant for the injunction as prayed.


text:
    IRWIN v. AUTO FINANCE CO. et al.
    No. 1060.
    Court of Civil Appeals of Texas. Waco.
    May 28, 1931.

    Rehearing Denied July 9, 1931.
    See, also, 34 S.W.(2d) 672.
    Niblo & Dodd, of Dallas, for plaintiff in error.
    Spell, Neman & Howell, of Waco, for defendants in error.
   BARCUS, J.

Defendant in error Auto Finance Company, a partnership, hereinafter called Finance Company, instituted this suit against E. M. Rabón on a note executed by him and secured by a chattel mortgage on “one Ford Cabriolet model, Motor No. A-2131192, together with spare tire and tubes and all equipment.” The Finance Company filed their affidavit for writ of sequestration describing the property which they desired sequestrated as one Ford cabriolet model, motor No. A-2131192, and alleged said automobile was in Dallas county. The defendant in the trial court, E. M. Rabón, executed his replevy bond in which he described the property replevied as “one new Ford Cabriolet model, motor No. [ A-XXXXXXXX ].” Said replevy bond was signed by H. H. Tompkins and D. L. Irwin as sureties. The cause was tried to the court, and resulted in judgment being entered for the Finance Company against E. M. Rabón for $648.73 and all costs of court, together with a foreclosure of the chattel mortgage lien .on “one Ford Cabriolet model, motor No. A-2131192 and all equipment.” The court found the value of the property on which the mortgage was foreclosed, being said Ford car and all equipment, to be $650, and recited in his judgment that said property had been replevied by E. M. Rabón, and rendered judgment against E. M. Rabón and the two sureties named for $648.-73. D. L. Irwin, one; of the sureties on the replevy bond, alone prosecutes this appeal.

Plaintiff in error contends that the judgment of the trial court is erroneous, in that it rendered judgment against the sureties on the replevy bond for the value of the “Eord Cabriolet model, motor No. A-2131192 and all equipment,” when the record shows affirmatively that only the automobile was sequestrated and replevied. He further contends that the judgment is erroneous, in that it did not find the value of the automobile separate and distinct from the equipment, but only found the combined value of the automobile and all equipment. We sustain these propositions. Article 6857 of the Revised Statutes provides specifically that, where judgment is rendered against the defendant, the court shall render judgment against the sureties on the replevy bond for the value of the property replevied. Our courts uniformly hold that, where there is more than one article replevied, it is incumbent upon the trial court to find the value of each article separately in order that the defendant and his bondsmen-may satisfy the judgment in whole or in part by returning the sequestered property within ten days after judgment, as provided by article 6853 of the Revised Statutes. Reliable Iron Works v. First State Bank & Trust Co. (Tex. Civ. App.) 241 S. W. 592; Hill v. Armstrong Mfg. Co. (Tex. Civ. App.) 275 S. W. 1086; Bishop v. Japhet (Tex. Civ. App.) 171 S. W. 499. Under the plain provisions of the bond which was given, as required by article 6850 of the Revised Statutes, the sureties are only liable for the value of the property replevied with the value of the fruits, hire, or revenue thereof. There is nothing in the record to show what the automobile was worth independent of “all equipment.” We do not think it could be said that the description in the affidavit for sequestration and in the replevy bond which describes the property as a Ford automobile could be construed to be and mean the same thing as a Ford automobile and all equipment. What is meant by the word “equipment” as applied to automobiles, so far as we have been able to find, has not been determined by the courts in this state.

• This question was directly involved in the case of Old Colony Ins. Co. v. Kolmer, 78 Ind. App. 479, 136 N. E. 51, 53, where plaintiff in the trial court sought to recover loss for the theft of a “rectifier” under a policy which insured against loss “upon the body, machinery and equipment” of an electric automobile. The “rectifier” was kept in the garage and used for the purpose of charging the electric car with electricity. The court in said case held that the term “equipment” as applied to automobiles meant whatever was needed for efficient action or service in connection therewith, and that, since it was necessary to the operation of an electric car that same should be at stated times charged with electricity, a rectifier was a part of the equipment, and that Same was therefore covered under the terms of the insurance policy. The court said: “The policy does not limit the equipment of the automobile covered thereby to such as may be attached thereto, or carried therein or thereon, or to such as might be so carried in a place provided therefor. To so limit the policy would be to write something into it which was omitted by the insurer when it prepared the same, a thing we are not permitted to do.”

In the case of Shapiro v. Security Ins. Co., 256 Mass. 358, 152 N. E. 370, the court held that the trial court correctly defined “equipment” as it relates to automobiles as meaning “such Additions as are made to the complete car, intended for the safety or; convenience of the owner.”

In the case at bar, the Finance Company, when it took the mortgage in question, evidently intended to have security other than just the automobile when it described the property as “an automobile, a spare tire and tube and all equipment'.” Clearly, the mortgage would cover any and all equipment that went with or belonged to the automobile in question. The kind and value of the equipment of an automobile, of course, depends upon its use and its user. Some car owners have their cars equipped with trunks in which to carry the luggage, and some cars are equipped with a radio. No effort was made to definitely describe the term “all equipment” as used in the mortgage. It was evidently intended by said expression to embrace all equipment on said car. When the Finance Company filed its affidavit for sequestration, it only sequestrated the automobile and it alone was re-plevied, and the bondsmen were not liable for anything except the automobile or its value. The trial court foreclosed the mortgage lien, not only upon the automobile, but also upon “all equipment,” and found the value of the “automobile and all equipment” as a whole, and did not find the value of the automobile which had been replevied.

Plaintiff in error contends that the judgment of the trial court is erroneous, in that it does not specifically provide that same may be satisfied in so far as the sureties on the replevy bond are concerned by the automobile’being delivered to the proper officer within ten days after final judgment. Our courts have uniformly held that, while it is proper for this provision to be placed in the judgment, it is not necessary, since the defendant ■ and his sureties on the replevy bond have that right by force of the statute and independent of any recitation that may be contained in the judgment. Continental Gin Co. v. Thorndale Mercantile Co. (Tex. Com. App.) 254 S. W. 939; Scott v. Waldrop & Co. (Tex. Civ. App.) 8 S.W.(2d) 552 (error ref.).

The trial court having failed to fix the value of the automobile that was replevied, separate and distinct from the other property on which it foreclosed the mortgage, necessitates a reversal as to this portion of the judgment. E. M. Rabón, the original defendant, not having appealed, that portion of the judgment which renders a personal judgment against him, together with a foreclosure of the chattel mortgage, is not disturbed. That portion of the judgment which renders a personal judgment against D. L. Irwin and H. H. Tompkins, the sureties on the replevy bond, is reversed and remanded.

On Motion for Rehearing.

Defendant in error, Auto Einance Company, in its motion for rehearing, complains of that portion of our judgment Which reversed and remanded the cause as to H. H. Tompkins; its contention being that, since Tompkins did not appeal, this court has no jurisdiction over him, and cannot in any way change or modify the judgment of the trial court in its favor against Tompkins. This question was settled adversely to defendant in error’s contention in the case of Hamilton v. Prescott, 73 Tex. 566, 11 S. W. 548, 549. In Hamilton v. Prescott, supra, which has been cited with approval many times, appel-lee recovered judgment against a number of parties, only two of whom appealed, and the Supreme Court, in reversing the judgment as to all parties, stated: '“That a judgment against two or more parties, which is appealed from by one, may be reversed as to the one, and affirmed as to the others, or may be reversed as a whole, according to the manifest justice of the case, we think the cases cited sufficiently show.”

Our courts now uniformly hold that, where the judgment is not severable, or where it adversely affects the rights of the party not appealing, or where justice demands, the appellate court may, in reversing a judgment for a party who appeals, reverse same as to those who do not appeal from the judgment of the trial court. Leonard v. Prater (Tex. Com. App.) 36 S.W.(2d) 216, 222; 3 Tex. Jur. 1112; Lipshitz v. Lindsay National Bank (Tex. Civ. App.) 33 S.W.(2d) 874 (error ref.); Thomas v. Basden & Carrell (Tex. Civ. App.) 4 S.W.(2d) 336; Mergenthaler Linotype Co. v. McClure (Tex. Civ. App.) 9 S.W.(2d) 198; Id. (Tex. Com. App.) 16 S.W.(2d) 280; Reeves v. McCracken, 103 Tex. 416, 128 S. W. 895; Thompson v. Kelley, 100 Tex. 536, 101 S. W. 1074.

In Leonard v. Prater, supra, judgment was rendered in the trial court against a number of parties, jointly and severally, for a debt and for the cancellation of a lien on certain land. Some of the defendants appealed, and others did not. Judge Short, in writing the opinion reversing the case as against all of the defendants, stated': “The original defendants in this case were jointly sued and were held to be jointly liable in the judgment rendered in the trial court; hence we are under the necessity to treat the judgment appealed from as an entirety. Where a reversal is -required as to one party, it will reverse the judgment as a whole. Article 2211, R. S. 1925; Ferguson v. Dickinson (Tex. Civ. App.) 138 S. W. 221; Southwestern Telegraph & Telephone Co. v. Long (Tex. Civ. App.) 183 S. W. 421.”

Unquestionably in this case Tompkins and Irwin were sued jointly as sureties on the replevy bond, and were by the judgment of the trial court held to be jointly liable thereon. It would be manifestly unjust to reverse the judgment as to one of the sureties and affirm the same as to the others.

The motion for rehearing is overruled.


author: LEVY, J.

text:
    STANDARD ACCIDENT INS. CO. v. CHERRY.
    No. 4019.
    Court of Civil Appeals of Texas. Texarkana.
    July 2, 1931.
    Rehearing Denied July 11, 1931.

      See, also, 36 S.W.(2d) 807.
    King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    Wm. V. Brown, of Texarkana, for -appellee.
   LEVY, J.

The suit was brought by the appellee to recover of appellant on an accident policy providing for weekly indemnity for injury suffered through external, violent, and accidental means- The appellee asked for indemnity at the rate of $15 a week for 33⅝ weeks, with the penalty of 12 per cent, and attorney’s fees. The petition alleged: “Plaintiff alleges that he received said bodily injuries through external, violent and accidental means while in the regular performance of his duty; That while attempting to put a 20(bpound block of ice in an ice box or .refrigerator, and while attempting to throw the 200-pound block of ice off his back in the ice box he received an unusual jerk or strain,, which happened unintentionally or unexpectedly, which tore his ligaments, nerves, bloodvessels, and tissues loose in his back, shoulder, side and spine, and injured the muscles, tissues and ligaments of his back, spine, side and shoulder and other parts of his body as hereinabove set out, totally -rendering him incapacitated of further performing the duties of his occupation, to-wit, that of truck driver, ice delivery all as hereinabove set out.”

The appellant answered by general denial, and specially pleaded that appellee was not totally and continuously disabled and prevented from attending to any and every kind of duty, but, at most, one or more of the duties pertaining to his occupation.

The court submitted the cause to the jury upon special issues, whose findings, in effect, are: (1) That the plaintiff received bodily injury on June 10,1929, which resulted directly, exclusively, and independently of all other causes through external, violent, and accidental means; (2) and that the injury wholly disabled plaintiff from performing and attending to any and every kind of duty pertaining to his occupation as insured against. The jury further found that the plaintiff was disabled from January 22, 1930, to September 18, 1930, and that $175 was reasonable attorney’s fees. The court, entered judgment for the total sum of $738.86.

The statement of the testimony of the ap-pellee gives a clear outline of the suit. He was employed by an ice company as truck driver in daily delivery of ice to customers. His duty was to carry ice from his truck and put it in the houses or ice boxes of the company’s customers. The usual weight of the ice he had to carry and put in the ice boxes ranged from fifty to three hundred pounds, as the customer desired. The appellee specially testified, as material to state, as follows:

“I am asked to describe how I received those injuries on June 10, 1929, and in what way, and what I was doing at the time. I was carrying a 200-pound block of ice, putting it in a high ice box. I had thfe ice on my back and was all bent over and had to get the ice up on the edge of the ice box. When I went to throw the ice back off my back it seemed just like it tore me in two there. I had been following that occupation somewhere close to two years and had carried ice in that way before. That was a large piece of ice that I was carrying but I have carried pieces larger than that. I have carried 300-pound blocks of ice; and have carried them on my back. I did not intend to injure myself at the time I put that ice on the box. I did not know it would hurt me when I did that because I had been doing it that way every day. I had put 200 pounds of ice in that particular ice box every day that summer up until then, and I did not expect it would do that. I had no idea I would be injured when I put the ice in that box in that manner on that occasion. This injury happened unexpectedly. I had followed this occupation for about two years prior to the time I received this injury.”

Appellee further testified: “I had been working for the Powers Ice Company for about two years at the time I claim to have received this injury. This jerk in my side occurred down there at Atchison’s Grocery Store. I am about five feet, two inches tall. I am asked to illustrate by this chair here about where the open space in that box was that I had to put that ice in. It was about right here (indicating). I am asked to stand up by the side of that and see how that would come up to me. As to how far it comes about my waist band, it comes about right there; about three inches above my waist band. The top of that chair would be about the height of the opening in the ice box; something near that. Supposing that grip there was the piece of ice that was in my truck that I was going to deliver that morning; I am asked to show the jury just how that happened and what happened. I can’t show them unless I had the ice and a man here to carry it and show them, for a man can’t get in the position with a grip on his back like he would have to with a 200-pound chunk of ice on his back. You have to reach bach like this (indicating) with your hooks. The ice is sticking up there; a 200-pound block of ice that you are laying away over there. I come right here and catch one end right there and edge that ice like that, and then T have got to tilt it up and stand it straight up in that box, like that; stand straight up with a 200-pound, straight up. That is what I did on that occasion, and that is where I broke my back down. That is the way it happened. I had been delivering ice that way for two years for this Company; right at two years. I had been delivering to Mr. Atchison all summer up until I got hurt that summer; up until the 10th of June. I began delivering ice there to Atchison’s store and pútting it in that box up in the winter. It had been six or seven months or more that I had been delivering ice. That was in June, the sixth month of the year.”

On recross-examination appellee testified as follows: “When I was putting that piece of ice down there in Mr. Atchison’s store thát morning, as to whether or not there was anything that happened out of the ordinary except this strain or catch in my back — there was no strain or catch. It just seemed like— I heard it break loose; just tear loose. There was nothing unusual or out of the ordinary other than the tearing loose or breaking loose of that place back there, whatever it was. I unloaded the ice that morning just like I had on all other mornings before that, and just like I did all around town where the boxes are up like that. I carried it the same way.”

There is evidence that the appellee since his injury cannot carry the ice to the houses as required of him, and is prevented from substantially doing the duties pertaining to his occupation. The jury finding in this respect is sustained and here adopted as a fact of the case.

The accident policy in suit contained the following provisions":

“Standard Accident Insurance Company of Detroit, Michigan, in consideration of the representations contained in the application, copy of which is indorsed herein and made a part hereof, and of the premium of $29.71, hereby insures Marion E. Cherry, hereinafter called the insured, whose occupation is truck driver —ice delivery, for the term of 12 calendaf months from noon, Standard time, of the 29th day of October, 1928, against loss resulting from bodily injury, effective directly, exclusively and independently of all other causes through external, violent and accidental means except when intentionally inflicted while sane or insane, or sustained by the insured while insane, subject to all the conditions and limitations hereinafter contained, principal sum of $1,000.00; weekly indemnity $15.00.
“If such injuries shall wholly and continuously disable the insured from date of accident, from performing any and every, kind of duty pertaining to his occupation, and during the period of such continuous disability, but within 200 weeks-from date of such accident, shall result independently and exclusive of all other causes in either one of the losses enumerated below or within 90 days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the Company will pay the sum set opposite such loss, and in addition weekly indemnity, as provided in art. 2, to the date of death, dismemberment, or loss of sight. Only one of the payments named will be made for injury resulting from one accident.
“Weekly Indemnity.
“If such injury shall not result in any of the disabilities enumerated in Art. 1, but shall directly and immediately totally and continuously disable and prevent the insured from attending to any and every kind of duty pertaining to his occupation, the company will pay him the weekly indemnity at the rate mentioned above, ($15.00) for the entire period during which he is so disabled.”

The two points presented, in effect, are that (1) the appellee’s injury did not result through accidental means; and (2) the appellee was not rendered wholly disabled from attending to any and every kind of duty pertaining to his occupation. The second point should be, we think, overruled, as there is evidence which would warrant a finding by the jury, as within their province to make, of disability on the part of appellee to substantially do the work pertaining to his occupation. That satisfies the terms of the policy.

Upon the first point above the majority of the court are of the opinion that the jury were, on all the evidence, warranted in finding that the injury to the appellee resulted through accidental means. Carrying the ice in the manner done resulted in unexpected injury, and the injury should be considered as one. due to accidental means. The cases in point and which rule the facts are: United States Mut. Accident Ass’n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60; Bryant v. Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517; Pledger v. Accident Ass’n (Tex. Com. App.) 228 S. W. 110; International Travelers’ Ass’n v. Francis (Tex. Com. App.) 23 S.W.(2d) 282; and many similar cases.

The writer does not concur in the conclusion reached by the majority. In carrying, as frequently done, the 200-pound block of ice to the ice box in the store, the appellee, as he says, did so in an “all bent over” position. Such position naturally put him in a very severe strain of body. As appellee further stated, this position of voluntary strain alone, .without the intervention of any other cause or producing agency of injury, directly resulted in “the tearing loose or breaking loose” of certain ligaments of his back. I think the injury so produced must be regarded as merely accidental in result, and not as an injury caused by accidental means. The severe strain put upon the body in carrying the ice was adequate cause for the injuries. Tim appellee could reasonably have foreseen and" expected that an injury was naturally liable to be produced thereby. There was no efficient intervening cause or agency producing the injury, as can be seen to exist in all the cases cited above, occurring between the voluntary bodily strain of carrying the ice and the breaking loose of the ligaments of the back.

We have considered all the assignments of error, and think they should be overruled.

The judgment is affirmed.


text:
    NATIONAL SURETY CO. et al. v. ODLE et al.
    No. 1072.
    Court of Civil Appeals of Texas. Waco.
    June 4, 1931.
    Rehearing Denied July 9, 1931.
    Worsham, Rollins, Burford, Rybum & Hincks, of Dallas, for appellants.
    Bryan & Maxwell and Sleeper, Boynton & Kendall, all of Waco, for appellees.
   GALLAGHER, C. J.

W. C. Odie sued Exporters & Traders Compress & Warehouse Company, Turner Bros., a partnership composed of W. H. Turner and H. L. Turner, and National Surety Company, a corporation, in the justice court to recover one bale of cotton, or its value, which he alleged to be $100. He sued out a writ of sequestration for the seizure of said bale of cotton, and caused the same to be levied thereon by the constable. The parties will be designated as in the trial court. On the trial of the case in said court, plaintiff recovered a judgment against all &e defendants for said bale of cotton, or in the alternative for its value in the sum of $91.88. The judgment further recited that said bale of cotton was then in the custody of the constable, and ordered him to surrender the same to the plaintiff. Turner Bros, and the National Surety Company appealed to the county court.

Plaintiff on the trial in the county cpurt sought recovery for the conversion of said bale of cotton, and was awarded a judgment against Turner Bros, and the National Surety Company, jointly and severally, for the sum of $101.69, with interest from the date thereof. The defendant Exporters & Traders Compress & Warehouse Company having entered a disclaimer in the justice court and again in the county court, it was further ordered that plaintiff recover nothing against said defendant, and that it recover its costs. No reference to the sequestrated cotton, nor disposition thereof was made in such judgment. Defendants Turner Bros, and National Surety Company have appealed to this court.

Opinion.

Said defendants present a proposition in which they contend that the plaintiff, having sued in the justice court for the recovery of said bale of cotton, and having caused the same to be seized and impounded by writ of sequestration, thereby elected to seek recovery of the property itself, and could not thereafter, on appeal to the county court, abandon his demand for such property and have a recovery for the value thereof on the ground that the defendants had unlawfully converted the same. The bale of cotton in controversy was the property of plaintiff. It was stolen from him on the 5th day of December, 1929, by some party unknown, and on the same day delivered to the Exporters & Traders Compress & Warehouse Company. Said company issued therefor its warehouse receipt. Said receipt was issued in the name of E. W. Wallace, and by the terms thereof said company agreed to deliver said bale of cotton to him or bearer on surrender of such receipt. Said receipt was sold and delivered to Turner Bros. They purchased the same in good faith, not knowing that the cotton represented thereby had been stolen. The National Surety Company, having contracted to indemnify them against loss in such cases, paid them the amount they had expended in the purchase of said receipt, and they transferred the same to said company. Plaintiff on the 24th day of January, 1930, demanded said bale of cotton of all the defendants, and his demand was refused. He thereafter, on the same day, instituted this suit, and caused the same to be seized under his writ of sequestration, and it is now in the possession of the officer levying the writ.

Plaintiff had at his election two remedies for redress of the injury resulting from the theft of the bale of cotton in controversy in this ease. One of such remedies was to sue for the recovery of the specific property. The other was to treat the possession thereof by defendants, and their refusal to surrender the same on demand, as a conversion, and sue for the value thereof. Such remedies were inconsistent, and the assertion of one was necessarily a waiver of the other, except in the alternative that the remedy first sought had proved unavailable. A suit for specific property involves a persistent and continuing claim by the plaintiff of title to the property sued for, and invokes the aid of the court to effect its restoration. A suit for conversion treats the unlawful acts of appropriation by the defendant as having divested the plaintiff of his title and invokes the aid of the court to secure compensation therefor by an award of its value as damages in lieu thereof. 18 C. J. 991, § 4.

In suits for the recovery of specific property, the seizure thereof under judicial process establishes the primary character of the suit, and is wholly inconsistent with a mere alternative demand therefor in event the plaintiff fails to establish a conversion. The record in this case shows affirmatively that the remedy asserted by plaintiff in the justice court was the recovery of the specific bale of cotton claimed by him; that he sued out a writ of sequestration therefor, and caused the same to be seized thereunder, and that the same is still in the custody of the officer who levied such writ. He secured in that court judgment for title to, and possession of, said bale of cotton, and an order directing the officer to surrender the same to him. The record shows affirmatively that such relief was equally available to him in the county court. He, however, in that court abandoned his demand for the recovery of the specific property, and procured a recovery for the value thereof, on the ground that defendants had converted the same. This he,should not have been permitted to do. Humble Oil & Refining Co. v. Southwestern Bell Telephone Co. (Tex. Civ. App.) 2 S.W.(2d) 488, 489, pars. 1 and 2, and authorities there cited; Saner-Whiteman Lumber Co. v. Texas & N. O. Ry. Co. (Tex. Com. App.) 288 S. W. 127.

Article 2433 of our Revised Statutes provides, in substance, that where the judgment is for the recovery of a specific article, its value shall be assessed and that the judgment shall be that the plaintiff recover the same, if it can be found, and if not, its value as assessed, with interest at legal rate from the date of such judgment. The value to be so assessed is the value of the property at the date of the judgment. Morris v. Coburn, 71 Tex. 406, 408, 9 S. W. 345; Nolan v. Sevine, 36 Tex. Civ. App. 489, 81 S. W. 990, 991. The parties hereto have agreed that said bale of cotton weighed 528 pounds and was worth $9.05 per hundred at the time of trial, or an aggregate value of $47.78. The judgment of the trial court will therefore be so reformed as to award plaintiff, in lieu of the moneyed judgment, appealed from, a recovery of said bale of cotton, and if the same cannot be found, its value in the sum of $47.78 as aforesaid, and the officer in possession thereof will surrender the same to plaintiff on demand. The judgment of the trial court that plaintiff recover his costs in the courts below will not be disturbed, but the costs of this appeal will be adjudged against him.

Plaintiff by cross-assignments of error complains of the refusal of the trial court to render judgment in his favor against Exporters & Traders Compress & Warehouse Company. Plaintiff excepted to the .judgment rendered, and gave notice of appeal, but did not file an appeal bond. Exporters & Traders Compress & Warehouse Company being a eoappellee with plaintiff, his cross-assignments of error against it cannot be considered. Gilmer v. Veatch, 102 Tex. 384, 386, 117 S. W. 430; Booth v. Uvalde Rock Asphalt Co. (Tex. Civ. App.) 296 S. W. 345, 346, par. 1 (writ refused); Absolene Company v. Letwin (Tex. Civ. App.) 284 S. W. 288, 289, par. 3.

The judgment of the trial court, as so reformed, is affirmed.


author: II ADD, C. J.

text:
    COLBURN et al. v. WARD et al.
    No. 3629.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1931.
    Rehearing Denied July 11, 1931.
    Jos. H. Aynesworth and Hiram K. Aynes-worth, both of Stinnett, and Joe T. Dewberry, of Tulsa, Old., for appellant J. O. Colburn.
    Walter J. Loftus, of Amarillo, for appellant E. D. Hammond.
    Stone & Guleke, of Amarillo, for appellees R. E. Snell, Jr., Invader Drilling Co., and R. J. W. Oil Co.
   II ADD, C. J.

The appellant Colburn was the owner of several judgments which- had been rendered against one of the appellees, J. D. Ward, in Oklahoma, and of one judgment which had been rendered against Ward in Potter county, Tex., in favor of one Davis. On December 30, 1927, Colburn filed this .suit against Ward, R. E. Snell, Jr., the Invader Drilling Company, R. J. W. Oil Company, First National Oil Company, National Bank of Commerce, Kay County tías Company, Phillips Petroleum Company, and Humble Oil & Refining Company, to recover property alleged to have been conveyed to his codefendants by Ward in fraud of creditors; further alleging that Ward had conspired with his codefendants to conceal his property from his creditors.

After the filing of this suit, Ward was adjudicated a bankrupt on September 28, 1928, and on the 15th day of December, 1928, E. D. Hammond was appointed and qualified as trustee of Ward’s estate. As such trustee, he was ordered by the bankrupt court on October 24, 1929, to intervene in this case, and to have himself substituted as party plaintiff in lieu of Colburn, and to prosecute the suit as the trustee of the estate of Ward, and was further ordered not to abandon or disclaim any interest in the property for which Colburn had sued. Hammond, as trustee, was permitted to intervene herein by an order of- the district court of Hutchinson county, made and entered April 2, 1930.

The appellees Ward and his codefendants alleged that by the adjudication of Ward as a bankrupt and the appointment and qualification of Hammond as trustee, the latter became vested by operation' of law with the title and interest that Ward previously' held in •the property involved. That Colburn then had no specific lien on any of said property, in that he had filed claims in the bankrupt court against Ward for the amount of his several judgments, proved said claims as unsecured debts, specifically stating that he held no securities for any of said debts. That said claims were filed subsequent to the institution of this suit, and before the election of I-Iammond as trustee August 31, 1928, and Colburn had thereby waived any lien which he might have had by virtue of any of said judgments and any lien resulting, if any, from the filing of his creditor’s bill. That Colburn had participated in the election of Hammond as trustee, voting to the extent of his claims, thereby waiving any lien he might have had, and is estopped by all of said facts to contest the trustee’s absolute right to maintain this cause of action instead of Colburn.

The right of Hammond to be substituted as plaintiff! herein in lieu of Colburn was heard on the 20th day of October 1930, and resulted in an order reciting that the matters of fact therein set forth were true, and dismissing Colburn as plaintiff from the case without prejudice to the right of the trustee to maintain the suit as plaintiff on his plea of intervention.

On the 23d day of October, 1930, the court entered another order which recited the proceedings in the order of October 20, 1930, which further states that other evidence was introduced by Colburn, and upon the hearing the court; by said order, “confirms and ratifies the order heretofore entered on the 20th day of October, 1930, and here and now orders, adjudges, and decrees that the said suit of J. O. Colburn vs. the said R. E. Snell, Jr., J. D. Ward, Invader Drilling Co., R. J. W. Oil Co., et al. be and the same is hereby dismissed with prejudice -as to the said J. O. Colburn and he is now ordered not to prosecute this suit further.” Colburn excepted to this order, but gave no notice of appeal.

On the 25th of October, 1930, he filed his motion to set aside the last-mentioned order, and assigned as further grounds that the court erred in entering its order of April 3, 1930, permitting Hammond to intervene in the case, and to displace him as plaintiff. He attached to his motion an agreement which his attorney Dewberry hád made withHjh^tfcu torney -of Hammond in w^jch it is supumed that the order entered on April 3,1930, should be modified by striking therefrom the words “and is substituted as party plaintiff herein in lieu of said original plaintiff J. O. Colburn.” This motion was considered by the court, and on December 1, 1930, an order was entered which recites that the suit of Colburn against Snell et al. “be and the same is hereby dismissed with prejudice to the said J. O. Col-burn and he is now ordered not to prosecute same further.” Said order further provides that it shall be without prejudice to the rights of the trustee. Colburn excepted to this order of December 1st and gave notice of appeal, And thereafter, on the 19th day of December, filed his appeal bond which describes the order of December 1, 1930.

The so-called order of December 1,1930, is, in our opinion, the final judgment in the case, as it disposes of all the parties to the action. As to the trustee Hammond, it sustains exceptions to his plea of intervention and strikes out his “Amended Answer,” because it was not filed in accordance with an order of court made on the 20th of October, or in conformity with the agreement contained in certain letters. This amended pleading was filed November 12, 1930, and there appears in the record a letter from the trial judge, addressed to the attorney of the trustee, which states: “I have extended the time in this matter until November 17, 1930.”

On account of the imperfect and confusing condition in which we find the transcript in this case, we have been greatly hampered and delayed in the consideration of the questions presented. District & County Court Rule No. S5 requires that, in making a transcript, the proceedings shall be entered in the order of time in which they occurred. This rule has been utterly disregarded in the preparation of this transcript. We find" the pages numbered from 1 to 38. After page 38,, the pages are numbered from 29 to 122, and in briefing, the references to the record are made without regard to this improper and double paging. A transcript should be paged in accordance with District & County Court Rule 89. The index to the transcript is not in accordance with rule 92. There appears to have been five “orders” made in the case, and they are entered without regard to their respective dates, and, with two exceptions, the index does not inform us of the nature of the order or its date. There has been incorporated in the transcript the statement of facts, which includes the evidence introduced on what we presume to be the hearing of the plea in abatement. This statement of facts has no place in the transcript. It is not a part' of a bill of exceptions, and should have been made a part of the statement of facts. A transcript prepared in such disregard of the plain rules of procedure is not entitled to consideration, and, in considering it, we are not to be understood as setting a precedent and precluding a dismissal upon the court’s own motion of appeals, based upon such defective records which may be filed here in the future.

The first contention we will consider is the action of the court in dismissing the trustee Hammond from the case. On October 29, 1930, Keffer, the attorney for Hammond, wrote the district judge as follows:

“In re: Colburn v. Ward et al.
“Mr. Stone has agreed that the trustee in bankruptcy might file his amended petition on or before November 10th and that if such petition is not filed on or before such date, that thep the Court’s order on the demurrers and exceptions shall stand as final. If this is satisfactory with you, will you please make a notation on your docket extending the time?”

A copy of this letter was sent to Attorney Stone.

The district judge testified with reference thereto, in part, as follows: “Without the knowledge of Messrs. Stone & Guleke, without advising them thereafter, I wrote Mr. Éef-fer that I would extend the time until the 17th day of, November, which was seven days longer than he and Mr. Stone had agreed. * ⅞ * I had another non-jury week on November 24th, and I considered Messrs. Stone & Guleke could have the answer on the 17th and that would give them a chance to work' on- it. If anybody has been misled, it has been by what I thought I was trying to be extremely lenient. It i-s my fault and if theré has been anybody misled, I- -am willing to take the blame. The thing I should have done was to advise Mr. Stone-and Mr. Guleke. I want to be understood perfectly by Mr. Stone and Mr. Guleke that Mr. Keffer never requested-me to give him seven days and Messrs. -Stone & Guleke never knew it.”

The record shows that Keffer filed the amended answer on November 12th, five days before the limit which the court had voluntarily given him. Under these circumstances, we think the court erred in striking the pleading from the record, and his action in doing so constitutes reversible error.

The appellees contend that the order of April 2, 1930, subsituting E. D. Hammond, the trustee in bankruptcy, as party plaintiff in lieu of Colburn, finally disposes of the rights of Colburn, and, by -failing to except thereto and give notice of appeal, he has waived his right to complain at this stage of the proceeding. We cannot assent to this contention. It is in no sense a final judgment, and under the statutes there can be but one final judgment entered in any case. It is simply an interlocutory order which has been twice considered and confirmed since it was entered, and from such confirmation Col-burn has duly and properly appealed. It is true that in virtue of statutory provisions in certain cases, such as those relating to temporary injunctions, pleas of privilege, and the like, appeals may be prosecuted from inter-loctuory judgments, but Colburn could not have appealed from the order of April 2, 1930, as it was in no sense a final judgment. 3 Tex. Jur. 114, 136.

While the motions filed at -a subsequent term which were considered by the court, and which called for a review of his previous action in dismissing Colburn and substituting Hammond • as party plaintiff, did not necessarily require the trial court to consider them, having been filed out of time, their consideration was a matter within the discretion of the trial judge, and, if in his -action upon the motions he has abused the discretion, his orders are subject to review in this court. Dittman v. Model Baking Co. (Tex. Com. App.) 271 S. W. 75, and authorities there cited; Stewart v. State, 42 Tex. 242; Linn v. Arambould, 55 Tex. 611.

We think the court correctly substituted Hammond as trustee for Colburn as party plaintiff in this action. By provisions of the Bankruptcy Law, the trustee is vested with such title to the property of the bankrupt as-enables him to take charge of it, sue for its recovery, and dispose of it under the orders of the court. Section 70 of the Bankruptcy Act (ll.USCA § 110) provides in part: “The trustee of the estate of a bankrupt, upon his appointment and qualification * ⅞⅛ * shall in turn be vested by operation of law with the title of the bankrupt, as of tbe date be was adjudged a bankrupt, except in so far as it is to property wbicb is exempt,” etc.

Subdivision (e) of said section 70, 11 USCA § 110(e) provides, in substance, that tbe trustee may avoid any transfer by tbe bankrupt of his property wbicb any creditor of sucb bankrupt might have avoided, and may recover tbe property or its value from any fraudulent transferee, and jurisdiction of sucb suit is expressly given to any court of bankruptcy or any state court having jurisdiction of tbe amount.

As said in 4 Remington on Bankruptcy, 1402, the bankruptcy act itself gives the trustee by section 70a (4) not only the bankrupt’s own title, but also expressly vests in him by section 70a (4) title to all property transferred by the bankrupt in fraud of creditors; and by 70e gives him the right to clear away from the bankrupt’s title to property all fraudulent transfers of such title which any creditor might, under state law, have avoided, and, in discussing the amendment of 1910, tbe author says it has the effect of “placing the trustee in the position of an execution creditor with a levy on the property in his custody and with an unsatisfied execution on tbe property not in bis custody gives him more than the rights which any creditor might have chanced already to have asserted. It gives him in addition thereto all rights which would have been obtainable by creditors under state law, had tbe trustee been an officer holding an execution or equitable process in behalf of all creditors. This right is not a right derived from existing creditors. It is not a transfer from any creditor by operation of law'of that creditor’s existing lien or levy as seems to have been held in one case. It is a right derived from the statute itself, conferring upon the trustee the attributes of a creditor not ‘armed with process.’ ”

In its essence, this is a suit against an insolvent debtor to set aside a fraudulent conveyance of bis property, to which tbe transferees of such property have been made parties. Its purpose is to recover tbe property or its value from such fraudulent transferees, and subject it to tbe payment of tbe bankrupt’s debts. Under R. S. art. 3996 as amended by Acts 40th Leg. (1927), c. 30 (Vernon’s Ann'. Civ. St. art. 3996) sucb a suit may be maintained by a judgment creditor, even though his judgment has never been so recorded as to create a lien. He may file a suit of this character to set aside the conveyances, or he may levy on the land and sell it for the payment of his debt. Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815; Citizens’ National Bank of Plainview v. Slaton (Tex. Civ. App.) 189 S. W. 742.

It does not appear from the record' whether Colburn’s judgments have ever been filed and duly recorded upon the judgment lien records. Since it does not appear that any of Colburn’s judgments had been recorded upon the judgment lien records, it is unnecessary for us to discuss the contention that he had waived his liens by filing his claim in the bankrupt court with the statement that they were unsecured. The filing of the suit did not have the effect of creating a lien, in the absence of the levy of an execution or an attachment. Cassaday v. Anderson, 53 Tex. 535; Shirley v. Waco Tap Ry., 78 Tex. 131, 10 S. W. 543; Arbuckle Bros. Coffee Co. v. Werner & Cohen, 77 Tex. 44, 13 S. W. 963; Carter v. Hightower, 79 Tex. 135, 15 S. W. 223.

The suit is maintainable by a creditor whose claim has been reduced to judgment. 12 Tex. Jur. 187. “Although the weight of authority appears to be against the sufficiency of foreign judgments or decrees—even those rendered by' the courts of sister states—as the basis of the suit, in this state where law and equity practice are blended, it has been held not to be essential that the owner of a foreign judgment should establish’it in a Texas court before he can have the benefit of a creditor’s bill.” Id., citing Ward v. McKenzie, 33 Tex. 297, 7 Am. Rep. 261; Murphy v. Argonaut Oil Co. (Tex. Civ. App.) 299 S. W. 488, 493.

For the reasons stated, the judgment is affirmed, in so far as it substitutes the trustee for Colburn as plaintiff, and reversed and remanded because of the error of the court in striking the trustee’s .amended answer, and dismissing the ease.