author: GALLAGHER, C. J.

text:
    WINN et al. v. SCHRAMM.
    No. 1062.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1931.
    Rehearing Denied June 4, 1931.
    W. L. Eason, of Waco, for appellants.
    J.P. Word, of Meridian, for appellee.
   GALLAGHER, C. J.

This suit was instituted on the 14th day of January, 1930,' by Otto Schramm, appellee herein, against J. B. Winn and B. B. Winn, partners, doing business under the firm name of J. B. Winn & Son, appellants herein, and Sammie Leach, Truman Whitely, and L. T. Smith, other appellees herein, for the recovery of two bales of cotton, or, in the alternative, for the value thereof. Appellee Schramm alleged that on or about the 25th day of November, 1929, he was the sole owner and in possession of two bales of lint cotton located at Clifton in Bosque county; that on said day and date said Leach, Whitely, and Smith unlawfully took possession of the same without his knowledge and consent and. with the intent to deprive him of the value thereof and appropriate the same to their use and benefit. He further alleged that they, on said day and date, transported said two bales of cotton to Waco in McLennan county, and there sold and delivered the same to appellants Winn & Son and received as consideration' therefor the sum of $192.19. He further alleged that on the 7th day of December, 1929, be made demand on all said parties for the possession of said two- bales of cotton and that such demand was refused. He prayed for judgment for said two' bales of cotton against all said parties jointly and severally, or, in the alternative, for the value of the same in the sum of $217 and also for $45 exemplary damages. Each of the appellants filed a separate plea of privilege to be sued in McLennan county on the ground that he resided therein and not in Bosque county, in which said suit was pending. Appellee Schramm filed an affidavit controverting said pleas, in which he alleged that venue was properly laid in Bosque county because the suit was based upon the commission of a crime, offense, and trespass, being the theft of the two bales of cotton in controversy. He further alleged therein that venue was properly laid in said county because appel-lee Sammie Leach, one' of the defendants therein, resided in said county and that he was a proper and necessary party to the suit. He also alleged that venue was properly laid in said county, the place of residence of one of the parties defendant, in order to avoid a multiplicity of suits. Leach, Whitely, and Smith filed an answér waiving the issuance and service of citation ana admitting that they stole the cotton in controversy and sold the same to appellants. Appellants fijed an answer, consisting of general demurrer and general denial. ,'

The case came on for hearing on the 24th day of November, 1930. Appellants’ pleas. of privilege and the merits of the case were tried together. Appellants requested 'the court to charge the jury peremptorily in their favor on the issue of venue, which request was refused. The court instructed the jury to return a verdict in favor of appellee Schramm against Leach, Whitely, and Smith on the admissions in ■ their answer for the value of the cotton taken, and also for certain expenses incurred in that connection. The case between appellee Schramm and appellants was submitted on special issues, in response to which the jury found that Leach, Whitely, and Smith sold two bales of cotton to appellants; that they were not the owners of said cotton, but that the same belonged to appellee Schramm. The jury also found the value of said cotton. The court rendered judgment against Leach, Whitely, and Smith and also against appellants for the value of said cotton. No recovery of the cotton itself was requested or awarded. Appellants filed a motion for new trial, which was overruled. •Hence this appeal.

Opinion.

Appellants present a single assignment of error, in which they assail the action of the court in refusing at their request to charge the jury peremptorily to return a verdict in their favor on their pleas of privilege.

In a single proposition presented thereunder they contend that appellee Schramm’s cause of action against Leach, Whitely, and Smith was not thé same as his cause of action against them. Appellants in their argument amplify said proposition by the further contention that appellee’s suit against Leach and his confederates was for theft in Bosque county, and his cause of action against them for conversion in McLennan county. The character of appellee’s cause of action must be determined from the averments -of his petition. We quote from Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328, as follows: ‘'On questions of venue the character of an action is determinable solely by the allegations contained in the petition, and is a question of law to be determined by the court, and not a question of fact to be determined by testimony aside from the allegations in the petition.” Appellee was not required to replead in his controverting affidavit his cause of action or to in terms make his petition a part of such affidavit. The statute (article 2007) merely required the averment under oath of the existence of facts sufficient to support the material allegations in appel-lee’s petition. Sims v. Trinity Farm Construction Co. (Tex. Civ. App.) 28 S.W.(2d) 856, 857, and authorities there cited. The action of Leach and his confederates in taking possession of Schramm’s property without his consent constituted an unlawful trespass. He had a right under our procedure to seek redress therefor by suit for the recovery of the property, or in the alternative for judgment for its value. Such is the character of this suit as established by the aver-ments of his petition. He introduced testimony supporting the essential averments thereof. The testimony showed without dispute that Leach, one of the defendants resided in Bosque county. The issue of venue as affected by such a situation was considered by the Court of Civil Appeals for the Fifth District in the case of Alexander v. Alexander, 265 S. W. 1072, In that case Gertrude Alexander, a minor, by her next friend filed suit in Dallas county against Samuel Alexander, Carter & Lewis, a partnership, and the Seguin State Bank & Trust Company for the recovery of certain bank stock, or its value. She alleged that she was the owner of said stock, and that Samuel Alexander was in possession thereof and had without authority transferred the same to said partnership and said bank. Samuel Alexander resided in Dallas county. Carter & Lewis resided in Bexar county, and said bank had its principal office and place of business in Guadalupe county. Carter & Lewis filed a plea of privilege in statutory form praying that the case be transferred to Bexar county, in which they resided. The plaintiff in due form controverted said plea of privilege, claiming that the suit was properly brought in Dallas county because Samuel Alexander, one of the defendants, resided therein. The court overruled said plea and Carter & Lewis appealed. They contended in such appeal that the cause of action alleged by the plaintiff against Samuel Alexander was not the same as the cause of action alleged against them. The court -overruled their contention and held that they were proper parties defendant in said suit, and that venue was properly laid in Dallas county because Samuel Alexander resided therein, citing numerous authorities, to which reference is here made. See also, in this connection, Hudson v. Wright, 204 Mo. 412, 103 S. W. 8, 11, par. 2.

The rule announced in the authorities above cited is applicable in this case and requires the affirmance of the judgment of the trial court It is so ordered.


source: Caselaw Access Project

author: HALL, C. J.

license: Public Domain

text:
    SAMMANN v. DEITRICH.
    No. 3612.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1931.
    Rehearing Denied June 10, 1931.
    C. D. Russell and Joiner & Cook, all of Plainview, for appellant.
    L. 6. Mathews and Jeff D. Ayres, both of Floydada, and G. E. Hamilton, of Matador, for appellee.
   HALL, C. J.

The appellant, Sammann, plaintiff below, filed this suit in trespass to try .title to recover a strip of land lying between section 7, block M-14, and section 126, block D-2. '

The defendant disclaimed except as to the strip in dispute, and pleaded not guilty, and that he, as the agent for O. F. Marschner, the then owner of the S. W. ¼ of section 7, had an agreement on or about January 25,1919, with the plaintiff, Sammann, that the dividing’ lino between the two tracts of land was and should be where the fence dividing said tracts ’ is now located, and that plaintiff built said fence in the fall of 1919, and that it had so remained since that date, and was recognized by them as the true boundary line between them. Defendant also set up the statutes of limitation of three, five, and ten years, but they were abandoned, and the ease was tried only upon the issue of an agreed boundary.

The court submitted the case to the jury upon two issues, in response to which the jury found: (1) That a deed executed and delivered by Marschner to Mrs. Deitrich was, in fact, a mortgage and security for a loan; and (2) that there was an agreement between A. M. Deitrich, acting as agent for Marsch-ner, and plaintiff, acting for himself, on or about the 25th day of January, 1919, fixing the boundary between their respective tracts of land at the line where plaintiff, Sammann, built the fence where it now stands. Judgment was entered accordingly.

The first contention urged by Sammann is that, because defendant Deitrich had alleged that he, as the agent for Marschner, had agreed with plaintiff, Sammann as to where the line was, it was necessary fqr Deitrich to show that Marschner was the owner of the S. W. ½ of section 7 at the time of the agreement.

This contention is based upon the fact that a deed from Marschner to Deitrich was introduced in evidence, which was acknowledged May 25, 1918,. reciting a consid-. eration of $3,300. The defendant’s testimony shows that, while this instrument was a deed upon its face, the real consideration for its execution was a loan, and that it was not intended by the parties to convey the title.

This being true, Marschner was the owner of the land. Parol evidence is admissible to show the real consideration for a deed or that a purported deed is, in fact, a mortgage.

The second contention is that, before plaintiff can be bound by an oral agreement fixing the line where the fence now stands, it must be shown that there was a dispute between him and Marschner as to where the true line "was, and that there is no evidence to show such a dispute, for which reason the court should have directed a verdict for plaintiff.

In the first place, it is not necessary to show that there was a dispute in the sense in which appellant construes the word “dispute.” Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340; Alexander v. Schleicher County (Tex. Com. App.) 3 S.W.(2d) 75; Kyle v. Clinkseales (Tex. Civ. App.) 22 S.W.(2d) 729. If the location of the line between the parties has not been definitely established, or is otherwise doubtful and uncertain, and the contiguous land owners orally agree to be bound by a line then established by their agreement, the agreed line will be adhered to by the courts. As said in 7 Tex. Jur. 194, § 54, a disputed boundary line may be fixed by a parol agreement between adjoining landowners which, when fairly and honestly made, will be recognized as binding upon them and those claiming under them, even though a mistake was made and the true line was not ascertained. Such agreements, when fairly made, are favored by law. They are approved and encouraged by the courts on the ground of convenience, policy, necessity, and justice, and as being in the interest of peace and tranquillity.

The evidence shows that there were several different opinions with reference to the location of the true boundary line between the two tracts. Block M-14, as shown by the field notes, was surveyed in March, 1877, and block D-2 was surveyed in June, 1878. Some surveying had been done in the two blocks by Surveyor Williams in 1917 and 1918. The land was finally surveyed in 1929 and patent, issued by the Governor on May 18,1929, to the west half of section 126 in block D-2. A letter was introduced from Marschner to Deitrich authorizing the latter to agree upon the location of the line with Sammann, and it is clear from the letter that neither Marsch-ner nor Deitrich knew where the line really was. The testimony of Carl Sammann, a son of plaintiff, shows that the fence was built according to the directions of his father, who did not know where the true boundary line was located upon the ground, and Carl’s testimony shows that his father understood that the line had been built according to the agreement made between the parties.

Whether the trial court will reopen a case to admit further testimony or permit a witness to correct his former statement is.,a matter of discretion, which this court will not revise, unless it is clear that the discretion has been abused. No abuse is shown in this case.

It does not appear that the verdict of the jury was not governed by the testimony. There is evidence to support the finding of the jury upon both issues.

Finding no reversible error in the record, the judgment is affirmed.


author: HARVEY, B. J. CURETON, C. J.

text:
    RICHARDSON v. LIBERTY INDEPENDENT SCHOOL DIST.
    No. 1452—5687.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    See, also, 300 S. W. 188.
    Stevens & Ste'vens and Ed Tully, Jr., all of Houston, for plaintiff in error.
    J.’ E. Dabney, of Houston; for defendant in error.
    J. B. Morris, of Beaumont, as amicus curise.
   HARVEY, B. J.

This is a suit for the recovery of delinquent school taxes, brought by the Liberty independent school district against J. P. Richardson. The suit was commenced on March 28, 1928, and a recovery of school taxes, in varying amounts, for the years 1921, 1922, 1923, 1924, and 1925 is sought, with foreclosure of tax liens on the property involved. Among other defenses, Richardson pleaded the statute of two years’ limitation (Rev. St. 1925, art. 5526). The trial court ruled, in effect, that limitation did not run against an independent school district on a claim for delinquent taxes due the district; and judgment was rendered in favor of the defendant in error for all the taxes, penalties, and interest sued for, with foreclosure as sought. Richardson appealed, and the Court of Civil Appeals, on account of lack of evidence of a valid tax levy for the year 1925, reversed the judgment of the trial court in so far as it allowed a recovery of taxes for that year. In -all other respects the judgment of the trial court was affirmed. 22 S.W.(2d) 475. Richardson’s application for writ of error was granted by the Supreme Court; the school district’s application for writ of error was granted because of the granting of Richardson’s.

The chief question presented for consideration relates to the ruling of the trial court, and of the Court of Civil Appeals, to the effect that the defense of limitation is not available to the defendant in a suit brought by an independent school district for the recovery of delinquent taxes due the district. That ruling, as applied to the present case, is partly correct and partly incorrect. As to all the taxes sued for, which had become delinquent tw;o years or more prior to September 1, 1925, the time the Revised Civil Statutes of 1925 became effective, the defense of limitation was available to Richardson; for until the 1925 revision of the statutes became effective, the two years’ statute of limitation ran against delinquent taxes due an independent school district. Hereford Ind. School Dist. v. Jones (Tex. Civ. App.) 23 S. W.(2d) 690. As regards the taxes sued for, which thus had already become barred, the right to the defense of limitation had become vested in Richardson, and this right could not be taken away by the Legislature. Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249. But it is also settled by the decision in the Hereford Independent School District Case, cited above, that by. adopting certain statutory provisions there pointed, out, as part of the Revised Statutes of 1925, the Legislature stopped the further running of limitation against school district taxes. The effect of this action of the Legislature was to render unavailable to Richardson the defense of two years’ limitation as regards all such taxes as were not already barred when the Revised Statutes of 1925 became effective.

Because the trial court erroneously entered judgment against Richardson for an aggregate sum which embraces barred items of varying amounts, the said judgment should be ■reversed and the cause remanded.

The school district complains of the action of the Court of Civil Appeals in reversing and remanding the cause in .so far as the claim for taxes for the year 1925 is concerned. As already pointed out, the action of said conrt in this respect is based upon a finding by that court of no evidence of a valid tax levy for the year 1925. This, as the case appears before us, includes a fact finding of insufficiency of the evidence in the respect mentioned. The order of the Court of Civil Appeals remanding that phase of the case, on account of such fact finding, must be respected. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565.

We recommend that the judgment of the Court of Civil Appeals, in so far as it affirms the judgment of the trial court, be reversed, and that the judgment of the trial court be reversed in all respects and the cause remanded.

CURETON, C. J.

The judgment of the Court of Civil Appeals is in part reversed, and the judgment of the district court is reversed, and the cause remanded. as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: HARVEY, P. J. CURETON, C. J.

text:
    BERRY v. PIERCE PETROLEUM CORPORATION.
    No. 1461—5698.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Smithdeal, Shook, Spence & Bowyer and Lewis B. Lefkowitz, all of Dallas, for appellant.
    Cantey, Hanger & McMahon and F. T. Denny, all of Fort Worth, for appellee;
   HARVEY, P. J.

The Court of Civil Appeals for the Fifth District has submitted the following certificate containing certified questions:

“Pierce Petroleum Corporation, a foreign corporation with a permit, filed this suit in a district court of Dallas County against F. H. Berry, a resident of Harris County, Texas, to recover balance due for gasoline, kerosene oil and other petroleum products sold and delivered to appellant by appellee at its stations located at Houston and Richmond, Texas. Appellant plead his privilege to be sued in the county of his residence, to which appellee filed a controverting t affidavit, alleging therein as facts relied upon to confer venue upon the district court of Dallas County that, the account sued upon was made up of and based upon a series of written invoices alleged to have been executed by appellant, or by his duly authorized agents, each of which carried a stipulation to the effect that, the amount shown thereon to be due was payable to appellee at its office in Dallas, Texas, that each invoice constituted and was a contract in writing, obligating appellant to pay in Dallas County, hence venue was properly laid in said county. Appellant replied to the controverting plea by a general demurrer and an unsworn general denial.

“On trial of the contest appellee offered in evidence one of the alleged invoices, together with an agreement made in open court and entered of record that, each of the other invoices making up the account sued upon was in the same form. These invoices were made out on regular blank, forms used by appellee for such purpose, containing certain numbers, letterings, headings with blanks to be filled in, as the occasion required, and other language not material here. The pertinent language of the invoices is as follows:

“Make all checks payable to Pierce Petroleum Corporation
“This invoice payable at Dallas, Texas, September 6, 1928'
“To Pierce" Petroleum Corporation, Dr., Richmond Agency
“Mr. F. H. Berry, Box 455, Houston, Texas
“Article Eupion
"Gallons 576
“Price 1442
“Amount 92.16
“Goods received [Signed] Tarwater, Purchaser.

“The invoice and the agreement of the parties recited above constituted all the evidence introduced on trial of the contest, and at its conclusion the court entered an order overruling appellant’s plea, from which he appealed and presented for our consideration the questions set out below.

“Over the objection of appellant, the court admitted in evidence, without requiring proof of their execution, the invoices, being the alleged written contracts, by virtue of which venue was sought to be maintained in Dallas County. Appellant assigned error on this action of the court, contending that the alleged execution of the invoices was put in issue by the sworn plea of privilege filed by him, that the same constituted, without further pleading, a proper plea of non est factum' and was, in legal effect, a sworn denial of the alleged execution of said instruments, within the meaning of article 3734, R. S. 1925.

“Appellee combatted this contention, insisting that, under the law", its controverting affidavit was a pleading within the meaning of article 3734, R. S. 1925, and, as same was based on written instruments, alleged to have been executed by appellant or by his authority, and he having failed to file a plea of non est factum, putting in issue the alleged execution of the instruments, the court committed no error in admitting same in evidence without proof of execution.

“We sustained the contention of appellee and held that, as appellant failed to deny the alleged execution of the invoices constituting the written instruments upon which venue was predicated, the trial court committed no error in admitting same without requiring proof of their execution.

“In reaching this conclusion, we followed the rule of construction announced by the Fort Worth Court of Civil Appeals, in Borschow v. Waples Platter Grocer Co., 223 S. W. 872, and seemingly approved by the Supreme Court in Greenville, etc., Co. v. Commercial Finance Co., reported in 117 Tex. 124, 298 S. W. 550, 552. However, we recognized that our decision of this question was in conflict with opinions rendered by other Courts of Civil Appeals, notably in: Ray v. Kimball, 207 S.W., 351; Bledsoe v. Barber, 220 S. W. 369; and in Ketner v. Radford, 299 S. W. 681.

“Appellant made the further contention that, the invoices were not agreements at all, but merely receipts showing delivery of merchandise to the purchaser and, therefore, were not contracts in writing, within the meaning of the venue statute. We overruled this contention and held that the invoices, a copy of which is set out above, were written contracts within the meaning of subdivision 5, art. 1995, R. S. 1925.

“We have before us the motion of appellant for rehearing, in which the action -of the court in the respects above mentioned is assigned as error, and pending action thereon because our decision is in conflict with opinions rendered by other Courts of Civil-Appeals, as above mentioned, and further, because we deem it advisable so to do, present' to the Honorable Supreme Court for adjudication the following question: Did appellant’s plea of privilege, to which appellee’s controverting affidavit was filed, constitute, without further pleading, a proper plea of non est factum and a sworn denial of the alleged execution by appellant, or by his authority, of the written invoices, within the meaning of article 3734, R. S. 1925.

“We also deem it advisable to present to the Supreme Court for adjudication the question, whether the written invoices, copy of which is set out above, reciting that, ‘This invoice payable at Dallas, Texas’, constituted contracts in,writing to perform in Dallas County, within the meaning of the venue statute?”

Where a defendant is sued outside the county of his residence, and he has duly filed his plea of privilege to be sued in the county of his residence, as prescribed by article 2007 of the statutes, and the plaintiff files a controverting plea alleging the execution by the defendant, or by his authority, of a contract in writing to perform, in the county in which the suit is brought, the obligation sued on, the plea -of privilege, as regards the determination of the plea, has effect to put the plaintiff to proof, by extrinsic evidence, of the fact of execution by the defendant, or by his authority, of the said contract as alleged. This was settled in Johnson v. Dallas Cooperage & Hardware (Tex. Com. App.) 34 S.W.(2d) 845.

The instrument set out in the certificate, containing as it does the provision “This invoice is payable at Dallas, Texas,” purports a promise that the obligation to pay would be performed at Dallas. Being in writing, the instrument imports a valuable consideration for this promise, and, if properly proved up, would evidence a “contract in writing” to perform, at Dallas, the obligation to which the contract relates. For by his execution of the instrument, the promisor would be regarded as adopting the language of the provision as his own. Cities Service Oil Co. v. Brown (Tex. Com. App.) 27 S.W. (2d) 115. We do not mean to say, of course, that the instrument purports a contract by Berry to perform said obligation at Dallas. The instrument does not purport to bear his signature. It purports to be signed by one “Tarwater,” as “purchaser.” However, 'if justified by tbe pleadings, the fact that Tar-water, with authority from Berry to do so, made such contract in his own name for Berry, may be shown by extraneous evidence. Diacomis v. Wright (Tex. Com. App.) 34 S.W. (2d) 806.

What has been said sufficiently answers the questions certified, and we recommend that they, be so answered.

CURETON, C. J.

The opinion of the Commission of Appeals, answering the certified questions, is adopted and ordered certified.


author: SHARP, J. CURETO'N, C. J.

text:
    ST. LOUIS, B. & M. RY. CO. v. BLAIR.
    No. 1460—5697.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant.
    Rose & Sample and J. W. Wheeler, all of Edna, for appellee.
   SHARP, J.

This is a certified question from the Court of Civil Appeals of the First Supreme Judicial District. The statement and question read as follows:

“In the above styled cause now pending in this court on appeal from the County Court of Jackson County, being unable to reach any satisfactory conclusion upon the question of law presented by the appeal, and the case being one of which the jurisdiction of this court is final, we deem it advisable to certify for your decision the question hereinafter propounded which arises upon the following statement of facts disclosed by the record.
“The suit was brought by appellee for the recovery of the value of two cows owned by him which were killed by a train operated by appellant Railway Company, and for an additional $20.00 as a r'easonable attorney’s fee.
“The plaintiff alleges that his cows were killed by a train on defendant’s railway, near the town of Lolita in Jackson County, which was being negligently operated by defendant’s employees, and that the cows entered upon the defendant’s right of way from plaintiff’s pasture through a fence enclosing defendant’s right of way which defendant had negligently failed to keep in repair.
“The defendant answered by general demurrer and general denial.
“The cause was submitted to the jury upon special issues, in response to which the jury found that the right of way fence ■ through which the cows entered upon the defendant’s right of way and the cattle guard west of the town of Lolita over which the cows passed on entering the switching yards of defendant at said town where the cows were struck and killed by the train, were negligently maintained by the defendant in that they were not in such condition as under ordinary circumstances would effectually turn cattle of ordinary disposition and docility.
“There was no evidence of any negligence in the operation of the train by which' the cows were killed.
“The undisputed evidence shows that the cows were killed in the switching yards of defendant, six hundred feet east of the cattle guard oyer which they emerged from the fenced portion of defendant’s right of way.
“Upon this statement of the pleadings and evidence we respectfully certify for your decision the following question:
“Oan the negligence of the defendant in the maintenance of its right of way fence and the cattle guard adjacent' to its switching yards be deemed the proximate cause of the death of the cows, and entitle plaintiff to recover their value from defendant?”

The salient facts of this case are that the two cows in controversy entered upon the right of way of the railroad from plaintiff’s pasture through a fence inclosing the railroad right of way, which the railroad had fenced in compliance with article 6402 R. S., and had negligently failed to keep in repair. It is also shown that the cows passed out of the right of way fence oyer a defective cattle' guard, and were killed in the switching yards of the railroad by a train operated by the employees of the railroad company.

Article 6402, R. S. 1925, reads as follows:

“Each railroad company shall be liable to the owner for the value of all stock killed or injured by the- locomotives and cars of such railroad company.in running over their respective railways. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle. If said company fence its road it shall only be liable for injury resulting from a want of ordinary care.”

The precise question presented by the record now before us is whether in the present case the failure of the railroad company to maintain along its right of way a fence or fences, sufficient to turn stock, renders it liable in damages to plaintiff because of the killing of the cows which occurred on its right of way, where the law did not require its grounds to be fenced.

The anfewer turns upon the question: Was ■the negligence of the railroad company in failing to keep its fence in repair, as required by law, and permitting the two cows to leave the pasture and pass on to the right of way, and thence through a defective cattle guard to the switch yards, not required to be fenced, where they were killed by the train of defendant, the proximate cause of the injury to the cattle?

It is plain that the purpose of the statute was to give immunity to railroads for the killing of animals upon the right of way required to be fenced, solely upon the condition that the railroad company had fenced its right of way. The statute says “if the railroad company fence its road” and nothing is said in the statute about maintaining the fence, but it is clearly imputed that the duty to maintain the fences in a legal condition is as clearly imposed as the duty of constructing them. Texas Central Railway Co. v. Pruitt, 101 Tex. 548, 109 S. W. 925, 927. The Supreme Court, in rendering the opinion in that case, said: “It was certainly not intended that a railroad .company could secure the immunity of the statute by making a fence one day and permitting it to get out of repair the next. Neither is the kind or character of the fence defined. But to fence against live stock clearly means so to inclose the land by an obstruction as to prevent the ingress and egress of such stock.”

This rule is affirmed in the case of Texas & Pacific Ry. Co. v. Webb, 102 Tex. 210, 114 S. W. 1171, 1174. In that opinion, Judge Williams says: “The liability of the company is therefore absolute, unless it had complied with the requirements of the law as to fencing its track. The evidence shows that there was an opening in the fence through which the horse passed, and does not show that it was one which the company was required by law to make. The liability must be held to be the same as if the track had not been fenced at all at that place. Texas Cent. Ry. Co. v. Pruitt, 101 Tex. 548, 109 S. W. 925.”

In 52 C. J. § 1561, page 76, the following rule is announced: “To entitle plaintiff to recover under statutes making railroad companies liable for injuries to animals occasioned by a failure to construct or maintain fences or cattle guards, it must appear that the failure to do so caused or directly contributed to the injury complained of. The absence of a fence, or wing fence, or cattle guard, at the place of the injury is not the proximate cause of the injury if the- animal did not enter there but came upon the track at some other point where the road was properly fenced or was not required to be fenced. * ⅜ * But a failure to fence is the proximate cause if the animal got upon the track at the point where it should have fenced, although injured at a point where no such breach of duty is shown to exist, or after passing over a point in the track where there should have been a cattle guard and was not.”

In passing upon a similar statute, the Supreme Court of Ohio, in the case of Hocking Valley Ry. Co. v. Phillips, 81 Ohio St. 453, 91 N. E. 118, 119, 29 L. R. A. (N. S.) 573, says: “It was neither the design nor is it the effect of this statute to make the railroad company liable for all injuries, regardless of where or how they may occur, which would not have occurred but for the failure of the company to construct and maintain sufficient fences. Under this statute, we think, the liability of a railroad company for injuries to stock going upon its right of way in consequence of the company’s neglect to construct and maintain proper fences is a. liability for such damages only as result from injuries received upon its right of way as the direct and natural consequence of the absence of sufficient and proper fences. In other words the duty of the railroad company under this statute has relation only to dangers upon its own right of way.”

Applying the foregoing rules to the facts certified, we think the liability of the railroad company for injuries to stock in going upon its right of way, as a consequence of the railroad’s neglect to construct and maintain fences as required by statute, and then if the stock stray to a point of the right of way not required by law to be fenced, and are killed or injured by a train operated by the railroad, is limited to such damages only as result from injuries received on tlie right of way, as a consequence of the failure to maintain a legal fence.

The place of entry is important in determining whether or not the failure to maintain the fence is the proximate cause of the injury. If the company is required to fence at the point where the cattle enter the right of way and thereafter stray along the right of way across a defective cattle guard until injured by a train operated by the railroad at a place not required to be fenced, it cannot be said, as a matter of law, that the negligence of the company in not maintaining a legal fence at the point of entry is not the proximate cause of the injury to the stock. In our opinion, it is an issue of fact to be determined under all the evidence.

The rule announced in the following cases: St. Louis, Southwestern Ry. Co. v. Buice (Tex. Com. App.) 275 S. W. 996; Railway Co. v. Ogg, 8 Tex. Civ. App. 285, 28 S. W. 347 ; Railway Co. v. Blankenbeckler (Tex. Civ. App.) 35 S. W. 331, and other similar cases, is not controlling. In those cases the rule was correctly announced that if the injured animal entered at a place like the depot grounds and switching limits, which the railroad was not required to fence, no recovery can be had. In those cases the negligence of the railroad company in not constructing and maintaining a fence, as required by law, at the point where the cattle entered the right of way of the railroad company was not involved.

We answer the question “Tes.”

CURETO'N, C. J.

The opinion of the Commission of Appeals, answering the certified questions, is adopted and ordered certified.


author: LEDDX, J. CÜRETON, C. J.

text:
    MOORE v. KRENEX et al.
    No. 1174—5495.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    The Bowers, of Giddings, and William O. Bowers, Jr., of Beaumont, for plaintiff in error.
    E. T. Simmang, of Giddings, for defendants in error.
   LEDDX, J.

This case was submitted to a jury upon special issues and judgment entered in favor of defendants in error in accordance with the findings of the jury. Plaintiff in error filed a motion to set aside the verdict, which does not appear to have been acted upon or called to the attention of the trial court. Exception was taken .to the judgment, notice of appeal given, and the same was duly perfected by filing proper bond.

Plaintiff in error filed no assignments of error in the trial court, nor doe's his brief filed in the Court of Civil Appeals contain any assignments of error or adopt any of the grounds urged in the motion to set aside the verdict.

An examination of the brief filed in the Court of Civil Appeals shows that plaintiff in error asserted eleven propositions, nine of which are mere legal abstractions in which no complaint is made of any action of the trial court. The basis of these propositions appears to be a bill of exception taken to the refusal of the trial court to instruct the jury to return a verdict in his favor. One of the remaining propositions complains of the trial court’s definition of the term “fraud,” while the other asserts there was no evidence in the record justifying the submission of any issues by the trial court. The basis for these last two propositions seems to be a bill of exception taken to the action of the trial court in refusing to sustain plaintiff in error’s objection to the charge at the time it was submitted to the jury.

Where there has been a reasonable effort to comply with the statute and rules of the Supreme Court in briefing eases, we have been extremely liberal in considering questions attempted to be presented for determination. But where, as here, the prescribed method of procedure has been completely disregarded and no assignments of error filed in the trial court or contained in the brief filed in the Court of Civil Appeals, there is nothing presented for review, unless the record discloses fundamental error. Natkin Engineering Co. v. Ӕtna Casualty & Surety Co. (Tex. Com. App.) 37 S.W.(2d) 740, and authorities there cited.

It was not a discretionary matter with the Court of Civil Appeals as to whether it would consider the legal propositions urged by plaintiff in error. It was determined by us in Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 846, in answering certified questions, that in the absence of assignments of error the Court of Civil Appeals must confine its consideration of the case to fundamental error. In passing on this question Judge Speer, speaking for the court, said: “Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power. While it is not necessary that the assignments required to be filed below should be literally copied into the brief, yet they must be at least substantially reproduced.”

It may be admitted that there is a conflict between some of the decisions of the Courts of Civil Appeals on the question as to whether the giving or refusal of a peremptory instruction constitutes fundamental error which the Court of Civil Appeals is required to consider in the absence of a proper assignment of error complaining of the trial court’s action. The conflict on this question, however, was settled in the approval by the Supreme Court of the opinion of this commission in Ford & Damon v. Flewellen, 276 S. W. 903, wherein it was held that such action of the trial court could not be reviewed in the absence of an assignment of error. In deciding this question, Judge Powell, speaking for this commission, said: “When, as stated by the Court of Civil Appeals in this case, the only method for determining whether or not a fundamental error has been committed is by going through the entire statement of facts, then that court is not required to pass upon such a question. Any other rule, as we see it, would place an almost unbearable burden upon our appellate courts.”

An examination of the record, without perusal of the statement of facts, does not disclose that ah improper judgment has been rendered in this case; hence the Court of Civil Appeals should have affirmed the judgment of the trial court.

• We recommend that the judgment of the Court of Civil Appeals [17 S.W.(2d) 89] be reversed, and the judgment of the trial court affirmed.

CÜRETON, C. J.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


author: SHARP, J. CIJRETON, C. J.

text:
    EZELL v. KNAPP & ELLIOTT.
    No. 1450—5685.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Beall & Beall, of Sweetwater, for appellant.
    T. Yard Woodruff, of Sweetwater, for ap-pellee.
   SHARP, J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Eleventh District:

“The above cause is pending in this court on motion for rehearing. Appellees recovered a judgment against appellant in the Justice Gourt of Precinct No. 1, Nolan County. Within due time appellant filed with the justice of the peace an appeal bond, which was approved by him, and a transcript of the proceedings in the justice court prepared and filed in the County Court of Nolan County. After the case was filed in the County Court appellees filed a motion to quash the appeal bond and dismiss 'the appeal on the ground that the bond was defective. Before this motion was acted upon in that court appellant filed his motion for permission to file a new and amended bond. The court overruled appellant’s motion, hut sustained the motion of appellees and entered its judgment quashing the appeal bond, dismissing the cause and adjudging all costs in the county court against appellant. The appeal is from that judgment.
“Omitting formal parts, the motion to dismiss was as follows:
“ T. Plaintiffs would show to the Court that the purported appeal bond filed herein by the defendant does not comply with the provisions of article 2456, Revised Statutes of 1925, in that said appeal bond is not in double the amount of the judgment; said judgment in said Justice Court having been for the sum of $179.80, together with interest thereon from July 13, A. I>., 1928, at the rate of six per cent per annum. Judgment was rendered on March 1, 1929, and the interest on said amount up to March 1, 1929, amounted to the sum of $6.75, thereby making the true and correct amount of said judgment the sum of $186.55. That said purported appeal bond is for the sum of only $359.60, when under the law, in order to support an appeal to this court said bond should be for the sum of at least $373.10. * * ⅜
“ ‘2. Plaintiffs would further show to the court that the purported' appeal bond filed herein by the defendant is not made payable to all the appellees as required by law, in that the said bond is payable to Knapp & Elliott, whereas, T. K. Knapp and Prank Elliott are the appellees herein, and there being no such person in law as Knapp & Elliott.
“ Wherefore, plaintiffs say that said purported appeal bond is insufficient in law to support an appeal to this court, and they ask that said bond be quashed and this appeal be dismissed.’
“In the case of Briggs et al. v. Buckner, 19 S.W.(2d) 190, it was held by the Texarkana Court of Civil Appeals that Art. 1840, R. S., 1925, providing that courts may allow defective appeal bonds to be amended, applies only to appeals to courts of civil appeals. Some of the members of this court question the correctness of the conclusions announced in that case. We therefore deem it advisable, on motion of appellees, to certify to Tour Honorable Court the following questions:
“ ‘1. Are the provisions of article 1840, R. S. 1925, applicable to an appeal from the justice court to the county court?
“ ‘2. If not, has the county court the power, independent of any statutory provisions, to permit the filing of an amehded bond to cure such defects as are pointed out in the motion above copied?’ ” \

As shown by the foregoing certificate, the construction of article 1840, R. S. 1925, is involved. A brief history of the matters embraced within article 1840 will be helpful in reaching a decision.

The old article 1025 in the Revised Statutes of 1895 reads: “When there is a defect of substance or form in any appeal or writ of error bond, on motion to dismiss the same for such defect the court may allow the same to be amended by filing in the said courts of civil appeals a new bond, on such terms as the court may prescribe.”

Article 1025 was brought forward in the codification of the laws as article 1609 in the Revised Civil Statutes of 1911.

In 1905 the Legislature adopted the following: “When an appeal has been or shall be taken from the judgment of any of the courts of this State by filing a bond or entering into a recognizance within the time prescribed hy law, in such cases and it shall be determined" by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as. the court may prescribe.” Acts 1905, c. 115, §1.

The foregoing act, enacted by the Legislature in 1905, above quoted, was brought forward as article 2104 in the codification of the Revised Statutes of 1911.

In 1925 the statutes of this state were again codified and adopted by the Legislature and known as the Revised Civil Statutes of Texas. As a result of the work of the codifiers, article 1840 R. S. 1925 was adopted and reads: “When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the samé to be amended by filing in such appellate court a new bond, on such terms as the coprt may prescribe.”

It will be observed that article 1840 is a modification of both articles 1609 and 2104, contained in the Revised Statutes of 1911. Article 1609 provided that “the court may allow the same to be amended by filing in the said courts of civil appeals' a new bond, on such terms as the court may prescribe.” In article 1840 of R. S. 1925, the words “Courts of Civil Appeals” are omitted, and it is provided that “the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe.”

The specific question for decision is: What was the intention of the Legislature in enacting article 1840, supra?

The fundamental rulé in the construction of a statute is to give effect to the intention of the Legislature. The rule is correctly stated in 25 R. C. L. page 960, § 216, as follows: “In the interpretation and construction of statutes the primary rule is to ascertain and give effect to the intention of the legislature. As. has frequently been stated in effect, the intention of the legislature constitutes the law. All r.ules for the interpretation and construction of statutes of doubtful meaning have for their sole object the discovery of the legislative intent, and they are valuable only in so far as, in their application, they enable us the better to ascertain and give effect to that intent.” See 86 Cyc. page 1106, § 2.

The Legislature of Texas announced in article 10, R. S. 1925, for the construction of laws certain rules, among which are the following:

“6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy. * * *
“8. The rule of the common law that statutes in derogation thereof shall he strictly construed shall have no application to the Re-, vised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.”

When we consider the history of articles 1025, 1609, 2104, and 1840, the purposes for which they were enacted, the changing of the language as shown in article 1840, embracing within said article all of the rights and remedies provided for in the old articles, clearly shows that it was the intention of the Legislature to retain all the rights and remedies given litigants in -the articles of the statute for which article 1840 was a substitute. By omitting article 2104 and changing the language of article 1609, as shown in article 1840, plainly indicates that the Legislature did not intend to repeal any of the rights and remedies given in article 2104. The fact that article 1840 is placed under the title with reference to the Courts of-Civil Appeals is not controlling. It is quite evident that the two articles were merged for the sake of brevity.

We recommend that question No. 1 be answered “Yes.”

The answer made to question No. 1 renders an answer to question No. 2 unnecessary.

CIJRETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: RYAN, J. CURETON, J.

text:
    CLOWER v. FANNIN-LAMAR-DELTA COUNTIES LEVEE IMPROVEMENT DIST. NO. 3.
    No. 1207—5567.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    Ben D. Clower and L. L. James, both of Henderson, for plaintiff in error.
    Cunningham & Lipscomb and Couch & Couch, all of Bonham, and McKinney & Berry, of Cooper, for' defendant in error.
   RYAN, J.

Chapter 21, Acts 39 th Leg. (Acts 1925, p. 50' [Vernon’s Ann. Civ. St. Art. 7972 et seq.]), superseded previous statutes on the subject of levee improvement districts, and particularly articles 7972 to 8096 of the original 1925 Revision of the Civil Statutes. We shall therefore refer to said legislative act instead of to the Revised Civil Statutes of 1925, in this opinion — the better to avoid confusion and misunderstanding.

Commissioners of appraisement of the Ean-nin-Lamar-Delta counties levee improvement •district No. 3, acting under the provisions of section 21 of said act of the 39th Legislature (Vernon’s Ann. Civ. St. art. 7993), in viewing the lands within such district for the purpose of assessing the amounts of benefits and damages thereto, as such lands might be affected by the plan of reclamation therefor, awarded to plaintiff in error the sum of $117.30 in condemnation of 3.91 acres out of the S. G. Chandler survey in Delta county.

Section 22 of said act (Vernon’s Ann. Civ.. St. art. 7994) requires a certain form of notice of the filing of such report, to be given by the secretary of the board of supervisors to all persons interested, who may care to object thereto, to the effect that said commissioners will meet on a day named “for the purpose of hearing and acting on objections to their report and claims for damages”; onp copy of such notice and of affidavit showing service thereof is required to be filed with the commissioners of appraisement and another copy with the clerk of the commissioners’ court having jurisdiction.

Section 23 of said act (Vernon’s Ann. Civ. St. art. 7995) provides that any property owner affected by such report, or the plan of reclamation, may, at or before the hearing thereon, file his objections thereto; it also requires the commissioners, at the túne and place named in the notice of hearing, to hear and pass upon all such objections and claims for damages. The findings of the commissioners as to benefits (which are made final by said section 23 of the Statute) must be entered of record in the minutes of the board of supervisors and a certified copy thereof filed with the county clerk of each county in which any portion of the lands 'within such district are located, as a permanent record of such county, “and such filing shall be notice to all persons of the contents of such decree.”

As to the assessing or .refusing to assess damages or fixing the value of right of way, an appeal is allowed to any person or to the board of supervisors. Such appeal is to the district court of the county of jurisdiction, In the manner (regardless of the amount Involved), under the conditions, and within the time provided by section 7 of the act (Vernon's Ann. Giv. St. art. 7979), for an appeal from judgment of the county commissioners’ court refusing to create the levee district. The secretary of the board of supervisors, in case of such appeal, is required to, within five days after filing of the appeal, send to the clerk of the district court, the plan of reclamation or certified copy thereof, together with a transcript of that part of the appraisement affecting the lands concerned in the appeal, and a transcript of the claims for damages and the action of said commissioners thereon.

Section 7 of said act gives petitioners for the creation of levee improvement districts the right of appeal to the district court, should, upon hearing of petition therefor, the county commissioners’ court of the county of jurisdiction dismiss the same.

The appeal must be perfected in the following manner: Notice of appeal shall be given at, the time of the entry of said order by announcement of same before said court, which notice of appeal shall be entered on the minutes of said court, or by giving written notice within two days after the entry of such order to be filed with the clerk of the county court; and within five days from the entry of said order, an appeal bond, to be approved by the county clerk, must be filed. Said section 7 then provides, “Unless the appeal be thus perfected within five days after the rendition of the order, such order shall be final and conclusive, and there shall be no extension of time granted for the filing of the appeal bond.”

Section 23, after so providing for the manner of appeal, requires the secretary of the board of supervisors, within five days after filing of the appeal, to send the pertinent record to the district clerk. The trial in the district court shall be de novo and proceedings shall be in accordance with the laws of this state in suits for damages, and the claimant shall be considered as plaintiff and the district as defendant, except that no further pleadings shall be required.

Section 7 of the act provides that the judgment of the district court (as to the formation of the district) shall be “final and conclusive,” but section 23 provides that appeals (as to the amount of damages assessed) may be taken from the judgment of the district court as in other civil cases.

The uncontradicted evidence of Glower’s attorney, the only witness who testified at the trial in the district court, shows that he was present at the hearing on May 5, 1928, and at that hearing the commissioners of appraisement did not pass on Glower’s exceptions. He testified: “From what the Commissioners of Appraisement said and the questions they asked, I took it that they were going to overrule our objections, and I told them then that if our objections, were overruled by the Board that we would appeal to the District Court, and then gave oral notice of appeal and I stated to them at the time — I was not sure that was necessary, but I did not want to take any chances on waiving it, and that when they made a final award, that I would again give notice in writing, which I did in a day or two. I did not have any other notice of the award prior to the time of the filing of the award in the County Clerk’s office.”

He further stated that he got the information of the award from the county clerk. “I then immediately prepared my notice of appeal and filed it within the two days from the time the award was filed in the county clerk’s office. I would like to state further in this connection, that the hearing here before the Board was thoroughly informal. I stated to the Board of Appraisement that day, that I was not right clear about the notice of appeal, but I wanted a chance to appeal and wanted them to note my notice of appeal and they assured me no advantage would be taken of it, they were not going to award that at the time. * * * Tim Board was very fair and very reasonable and seemed to want everybody to have their hearing and have their day in court and they said that no advantage would be taken of that and accepted my notice.”

He further testified that “we had no further notice of any meeting or the entering of any award, until it was filed with the County Clerk, and as soon as it was filed, we filed our written notice of appeal.”

The trial court found as facts that “the Board of Appraisers of Fannin-Lamar-Delta County Levee Improvement District No. 3 met at the courthouse at Bonham, in Fannin County, Texas, on May 5, 1928, for the purpose of considering objections and exceptions to the award made by the appraisers of said District”; that “the plaintiff, S. D. Clower, had been theretofore duly cited and notified as required by law to appear at said time to make and file his objections and exceptions (if any he had) to the report of said appraisers”; that “the said S. D. Clower, together with his attorney, L. L. James, appeared at said time and place and filed exceptions and objections to the report of said appraisers”; that “said Board of Appraisers did not take any action on said S. D. Clower’s objections and exceptions on said May 5, 1928, and'did not make any award to said S. D. Clower on said date”; that “the said Board of Appraisers took said objections and exceptions of said Clower under consideration, and áh-nounced to said Clower that same were taken under consideration, and that the decision and final award of the Board of Appraisers would be made and announced at some later date, and that the board then adjourned to a later date.”

The trial court further found that neither the said Clower nor his attorney, nor any person in his behalf, “gave any oral notice of appeal from said final award to said S. D. Clower which was made on said May 7,1928; and that in fact no oral notice of appeal was ever given or made at any time,” and that the final report and award of said commissioners “was finally and fully and duly, and in all things legally confirmed by a formal decree of said Commissioners of Appraisement, on the 7th day of May, 1928. And that on the following- day, towit, May 8, 1928, at 10 o’clock a. m., said decree was duly filed in the office of the County Clerk of Fannin County, Texas, one day after same had been duly made.”

The trial court further found that said Clower gave a written notice of appeal from the order confirming the report of the commissioners of appraisement, on May 10, 1928, which notice of appeal was filed with the county clerk on the same day.

The trial court concluded as a matter of law that the district court did not have jurisdiction in the absence of an oral notice of appeal at the time of the entry of the order, because no written notice of appeal was given and filed within two days after the final decree of the commissioners of appraisement was made on May 7, 1928, although said notice of appeal was filed within two days after a copy of said final decree was filed with the county clerk on May 8, 1928; accordingly, the trial court sustained the district’s plea to the jurisdiction on those grounds and dismissed the suit.

The record shows that a proper and sufficient bond for appeal as provided for in section 7 of said act of the Legislature from the action of the commissioners of appraisement to the district court, was filed with and approved by the county clerk on May 11, 1928, which was within five days of the date of the decree of said commissioners of appraisement.

On appeal to the Court of Civil Appeals the judgment of the district court was affirmed. 19 S.W. (2d) 615.

Opinion.

The only question for decision here is whether any sufficient notice of appeal from the decree of the commissioners of appraisement to the district court was given in the terms of the statute. Proceedings to condemn property for public use are special in character, and their validity must depend upon a strict compliance by the condemning authority, with the law authorizing them. Parker v. Ry. Co., 84 Tex. 333, 19 S. W. 518; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Cummings v. Kendall County, 7 Tex. Civ. App. 101, 26 S. W. 439; 1 Lewis, Eminent Domain (3d !Ed.) § 387; 2 Cooley’s Const. Limitations (8th Ed.) p. 1119. But, as to compensation and remedy, they should be liberally construed in favor of the property owner. 1 Lewis, Eminent Domain (3d Ed.) § 389.

The statute in this case requires and prescribes the form of notice to be given, viz.: The time and place of the meeting of the commissioners for the purpose of hearing and acting on objections made must be stated (section 22); the statute also requires the commissioners,’at the time and place named in the notice, to hear and pass upon all objections and claims for damages (section 23). It is true that under the statute, the hearing may be adjourned from day to day (section 23), but not indefinitely or to an uncertain and unnamed day in the future, or subject to call, in which case new notice must be given. 2 Lewis, Eminent Domain (3d Ed.) § 585.

In the present case the commissioners did meet at the time and place named and heard the objections, but they did not pass or act upon such objections, nor did they adjourn from day to day, as required by the statute. They advised the property owner, according to his attorney’s uneontradicted evidence, that they were not going to make the award at that time and did not fix a date or time when they would do so. It is true, according to the same testimony, while the commissioners did not then make an award, they gave the attorney to understand that the objections would be overruled, when he gave oral notice of appeal and stated to them that when they made a final award he would again give notice in writing. They made a final award on May 7, 1928, but did not advise him thereof. He had no notice of the award prior to the time of its having been filed in the county clerk’s office. The attorney’s uncontradicted evidence is further to the effect that the commissioners accepted his oral notice of appeal so given on May 5, 1928, and advised him that no advantage would be taken of him. He testified: “We had no further notice of any meeting or the entering of any award until it was filed with the County Clerk and as soon as it was filed, we filed our written notice of appeal.”

We think this ease is ruled by the holding in Crabb v. Uvalde Paving Co., 23 S.W.(2d) 300, where this section of the commission, speaking through Judge Leddy, held that whenever property owners are misled through statements made to them by members of the city council at an open hearing before which such owners were notified to appear, and because of reliance upon such statements, lost their statutory right of appeal, equity will grant them relief, if no innocent third party’s rights accrued in the meantime.

There the property owners were informed by the mayor and one councilman that if the paving in question was not wanted, the matter would be dropped, and if the city should decide to proceed any further with the paving project, the interested property owners would be notified. The property owners in that case were thereby led to believe that the project had been dropped and gave the matter no further thought.

Here, while plaintiff in error was not misled by any statement that the project had been abandoned and understood that his objections would probably be formally .overruled at a future conference of the board, he was assured that his oral notice of appeal was accepted and he would be protected in ‘the final entry of the decree. Instead of this, his notice of appeal was not entered in the decree and he had no notice whatever of such decree until it was filed with the county clerk, when he immediately,- and within two days from such filing, deposited with the county clerk his written notice of appeal and the next day a properly approved appeal bond.

In City of Dallas v. Saenger (Tex. Civ. App.) 255 S. W. 652, an oral protest was made while the hearing was open; the protestant was assured by the city commissioners that another meeting would be held at 10 o’clock, the next morning, when he could file his written protest and a hearing accorded. The court held that he had a right to rely upon this promise and was not negligent in waiting until the next day to file the written protest. When he appeared the next morning he was informed that the board of commissioners had had an earlier session that morning and had overruled his oral protest. At a subsequent date, without notice to the protestant, an order was entered denying the written protest. The court held the proceedings void and enjoined their enforcement.

We hold that the plaintiff in error complied with the law in giving notice, both oral and written, and filed an approved appeal bond within the time prescribed by statute, and therefore properly perfected his appeal to the district court under the provisions of the statute.

In this connection, we think it proper to say that no question was raised as to the validity of the act, involving the reasonableness of the time prescribed for giving the notice of appeal within two days after entry of the commissioners’ court’s order, nor the rigid requirement of the filing of an appeal bond within five days. Section 7 of the act manda-torily requires that unless such appeal be thus perfected within five days after the rendition of the order, such order shall be final and conclusive and no extension of time shall be granted for the filing of such appeal bond.

We therefore express no opinion as to- the validity or reasonableness of the act in that respect, nor whether its enforcement may involve the further question of a taking of property without due process of law; but we do think it our duty to call attention to the matter, in order that the Legislature may, for the public good, amend said act by prescribing a more reasonable time within which notice of appeal may be given and an appeal be perfected. '

We recommend that tbe judgments of tbe Court of Civil Appeals and of tbe district court be reversed, and tbis cause be remanded for trial, to tbe district court.

CURETON, J.

Judgments of tbe district court and Court of Civil Appeals both reversed, and cause remanded, as recommended by tbe Commission of Appeals.

We approve tbe holdings of tbe Commission of Appeals on tbe questions discussed in its opinion.


author: HARVEY, P. J. CURETON, O. J.

text:
    McNEILL v. SIMPSON et al.
    No. 1469—5707.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Nat Harris and Tom.P. Scott, both ’ of Waco, for plaintiff in error.
    Taylor, Atkinson & Parmer' and Aubrey Morris, all of Waco, for defendants in error.
   HARVEY, P. J.

On January 1, 1923, H. K. T. Bonds, as maker, executed a promissory note to B. M. Simpson, payable one year after date., Tbe note provided for interest at tbe rate of 10 per cent, per annum from date until paid, and was indorsed by A. A. McNeill. On January 1, 1927, tbe principal of the note, and two years’ accrued interest, remained unpaid. At that time, Bonds and McNeill being unable to pay the note, Simpson orally agreed with them “to carry the note another year,” if the past-due interest was paid. This agreement between the parties was oral. McNeill further agreed orally that, if Bonds did not pay the past-due interest, he (McNeill) would. Shortly afterwards the past-due interest was paid by Bonds. On April 16,1928, which was more than four years after the maturity date named in the note, Simpson brought this suit against Bonds and McNeill to recover the indebtedness evidenced by the note. In his petition, Simpson describes the note, and sets up the oral agreement of January, 1927, as constituting a binding contract of extension of the’ time of payment, and predicates his alleged cause of action thereon as of a new contract to pay said indebtedness. Bonds duly pleaded his discharge in bankruptcy since the commencement of this suit. McNeill set up, and urges here that the oral agreement of January, 1927, was without consideration, and therefore was not a binding contract between the parties, and further that an action on the note is barred by limitation, in that, being oral, tbe said agreement, because of the provisions of article 5539 of the statutes, did not stop the running of limitation. The case, as between Simpson and McNeill, was tried to a jury. Judgment was rendered in favor of Bonds on his plea of discharge in bankruptcy, and against McNeill, in favor of Simpson, for the amount sued for. McNeill appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. 24 S.W.(2d) 485. McNeill was granted the writ of error on account of alleged conflict of decisions.

Where the parties to a promissory note, which is past due but is unbarred by limitation, and which by its terms bears interest until paid, mutually agree to án extension of the time of payment of tbe note to a future date, a new contract, based upon a new consideration deemed valuable in law, arises between the parties. By such an agreement, each of the parties becomes obligated to the other in respects not comprehended by the contract arising from the note. The payee impliedly promises to surrender his present right to demand immediate payment of the indebtedness represented by the note, and to forego suit during the extension period; the payor impliedly promises to pay said indebtedness on the new maturity date, together with interest up to that date, in any event, at the rate provided in the note. Each of these new promises constitutes the consideration for the other, and a binding contract, embodying the terms of the note, as modified by the new agreement, results. Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128. In such a ease, we understand the rule to be that, despite the fact that said agreement is oral, the existing right of action, which accrued to the creditor under the note, is relinquished, and that another right of action for the debt does not accrue to. him until the new promise of the debtor to pay is breached. Limitation does not commence to run against an action to enforce the debtor’s new promise to pay, until the time for performance of the new promise arrives. Heisch v. Adams, 81 Tex. 91, 16 S. W. 790; Port Arthur Rice Mill Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S. W. 926, 148 S. W. 283, 150 S. W. 884, 152 S. W. 629.

The foregoing legal principles are applicable to the present case. The words of the agreement of January, 1927, were that the “note” was to be “carried another year.” This language clearly imports a purpose to extend the time of payment of the indebtedness evidenced by the note to January 1,1928. Prom this extension- agreement, constituting as it does a new contract binding the respective parties to new engagements, the cause of action declared on arose. This cause of action has never become barred by limitation; therefore article 5539 of the statutes does not apply.

McNeill further complains here, as he did in the Court of Civil Appeals, of the action of the trial court in overruling his plea of privilege to be sued in the county of his residence. Bonds resides in the county in which this suit was brought. McNeill resides in another county. We have carefully considered the contentions in respect to this, and find no error. McNeill, being a party to the extension agreement, and the jury having in effect so found, he, as well as Bonds, became liable, under that agreement, to pay the indebtedness as contemplated by the agreement. Both, therefore, were properly sued in the county in which Bonds resides. Rev. St. art. 1995, subdivision 4.

We recommend that the judgment of the trial court and that of the Court of Civil Appeals affirming same be affirmed.

CURETON, O. J.

The judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, C. J.

text:
    WILKE v. FINN et al.
    No. 1184—5515.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.

      Wagner & Wagner and Tamp W. Grobe, all of Houston, for plaintiff in error.
    Vinson, Elkins, Sweeton & Weems, Samuel Schwartz, I-Ieidingsfelder & Kahn, and Hunt & Hunt, all of Houston, for defendants in error.
   RYAN, J.

The Metropolitan Life Insurance Company, on December 31,1923, issued to Herman Finn a policy of life insurance in the sum of $1,500, in which Fred Wilke was named the beneficiary.

Wilke was not related to Finn, the insured, either by blood or marriage; neither was he a creditor of the insured.

Finn died on February 15, 1927, having theretofore regularly paid the premiums on the policy; Wilke, the beneficiary, never paid any of such premiums or part thereof, and did not know that the policy had issued until some time during the year 1925.

H. B. Finn, Jr. (a cousin of the insured), was appointed and qualified as administrator of the latter’s estate, and on June 6, 1927, brought this suit for the proceeds of the policy against the insurance company and Wilke, the named beneficiary.

The insurance company admitted liability, deposited $1,500 in the court’s registry, and, on allegations of interpleader because of conflicting claims to such proceeds, prayed for its costs, including attorney’s fees.

Fred Wilke claimed the proceeds of the policy as the beneficiary named therein.

Upon trial before the court, without a jury, judgment was rendered against the administrator and in favor of Wilke for $1,350, proceeds of the policy, after allowing the insurance company the sum of $150 for its costs, including attorney’s fees; the insurance company was discharged from all-further liability, and all costs of court were adjudged against the administrator.

The Court of Civil Appeals reversed the judgment in favor of Wilke, and rendered judgment in favor of the administrator for the proceeds of the policy, as tendered into court, less the amount of the attorney’s fee awarded to the insurance company, and affirmed the judgment in favor of the company. 16 S.W.(2d) 922.

The case is now before us, (a) on complaint of Wilke that the Court of Civil Appeals erred in rendering judgment for the administrator, his contention being that the deceased had an insurable interest in his own life, which he' could legally insure for the benefit of any person whom he saw fit to name as beneficiary; and (b) on complaint of the administrator that the Court of Civil Appeals erred in sustaining the judgment of the court below in allowing the insurance company to recover its attorney’s fees and cqsts out of the proceeds of the policy, and in refusing to tax such, attorney’s fees and costs against said Wilke, or allow a recovery over against him therefor.

In some jurisdictions it is held that every person has an insurable interest in his own life, and that he may insure it for the benefit of any person whom he sees fit to name as beneficiary,'irrespective of whether such beneficiary has an insurable interest in his life or not (14 R. C. L. p. 920), and it was so contended in Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 625, 7 L. R. A. 217, 16 Am. St. Rep. 893, but this is not the rule in this state. Our courts have uniformly held that it is against the public policy of this state to allow one to be' the owner of a policy of insurance upon the life of a human being in whom he has no insurable interest. "■

As said by Judge Henry in Equitable Life Ins. Co. v. Hazlewood, supra:

“The doctrine is well settled by the weight of authority that a person not having an insurable interest in the life of another cannot take and hold by an assignment a policy upon the life of such other person, and that a creditor can only take and hold such a policy, by assignment, to an extent sufficient to secure his debt. Cammack v. Lewis, 15 Wall. 643 [21 L. Ed. 244]; Warnock v. Davis, 104 U. S. 782 [26 L. Ed. 924]; Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633.
“It is contended by appellee that every person has an insurable interest in his own life, and that when he is the actor he may take-out an unlimited amount of insurance upon his own life, and make it payable to whoever he may please, as beneficiary, without regard to such person’s having an insurable interest in his life. * * *
“The only distinction we can see in any case between the assignment of a policy taken by a person on his own life to one having no insurable interest, and the designating such person, without insurable interest, in the original transaction as the beneficiary, is that the insurer may not know of the assignment, but would necessarily be aware of the designation in the policy.
“So far as the question of public policy is concerned, we- can see no substantial distinction between the two proceedings; and, if one is invalid, it seems to us the other ought to be held equally so.
“An assignment of a valid policy to one having no insurable interest in the life insured does not invalidate the policy. The as-signee may collect and apply the proceeds, if he is a creditor, to the extinguishment of his own debt, and such sums as he may have disbursed for the purpose of keeping the policy alive; and the surplus may be collected for the benefit of the heirs of the person whose life .was insured.
“We see no reason why the same rule may not be applied to a person designated in the policy as the beneficiary, treating him, when he has no insurable interest, as an assignee, appointee, or trustee, to receive the proceeds for whoever may be lawfully entitled to enjoy them. The insurer will then be required to pay the sum it has promised to pay, and the money cannot be appropriated by anybody not having a legitimate right to it.”

Judge Gaines, in Goldbaum v. Blum, 79 Tex. 638, 15 S. W. 564, 565, said:

“In order to make a valid contract of insurance upon the life of one person for the benefit of another the beneficiary must have an interest in the life insured. When the person for whose benefit the policy is issued has no insurable interest, the contract is held illegal, upon two grounds: First, because it is against public policy to enforce a contract which makes it to the interest of one person to bring about the death of another; and, second, because it is in the nature of a wager.
“As to the ground of the illegality, however, the courts are not in accord. Some place it upon the one ground, and some upon the other. There is a conflict of authority as to application of the doctrine of the invalidity of contracts of insurance for want of an insurable interest, and this conflict probably arises from the difference of opinion as to the underlying principle. All agree that A., having no insurable interest, may not take out a policy on the life of B. gome courts even hold that B. may' not insure his own life and make the policy payable to A. But, the weight of authority, at least in this country, being the other way, this court has adopted the contrary doctrine. Insurance Co. v. Williams, 79 Tex. 633, 15 S. W. 478.
“But if B. may insure his own life, and make the policy payable to A., so that A. may recover of the insurer, it does not follow that A. may retain the money as against the legal representatives of the insured. Without deciding the question it is sufficient for our purpose to say in this connection that the recent decisions of this court tend to support the negative. Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633; Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A. 189; Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893; Lewy v. Gilliard, 76 Tex. 400, 13 S. W. 304.”

Judge Brown, in Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 275; 47 Am. St. Rep. 107, announced the following principles:

“It is against the public policy of this state to allow any one who has no insurable interest to be the owner of a policy of insurance upon the life of a human being. Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633; Schonfield v. Turner, 75 Tex. 329, 12 S. W. 626, 7 B. R. A. 189; Ins. Go. v. I-Iazlewood, 75 Tex. 351, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. S93.
“In some states it is held that an element of wagering likewise enters into such contracts, which has led, as we believe, to inconsistencies in the decisions in some of the courts. Our court has placed the inhibition against such contracts upon the higher and sounder ground that, the public, independent of the consent or concurrence of the parties, has an interest that no inducement shall be offered to one man to take the life of another. Making this the test in every phase of such cases, there can be no inconsistency in our decisions, and the public good will be better guarded.
“Applying this salutary rule, the conclusion has been reached by our court that such policy cannot be beneficially owned by any one not interested in the life insured, whether the policy be taken out in the first instance by the non-interested party, with or without the consent of the insured, or whether he acquired the policy by assignment from the person whose life is insured, or from another who had an’ insurable interest.
“A man may insure his own life, making the policy páyable to his legal representatives, and afterwards assign it to any one, or he may procure such policy, and make it payable to any person that he may name; but in either case, if the person to whom it is assigned or who is named in the policy has no insurable interest, he will hold the proceeds as a trustee for the benefit of those entitled by law to receive it. Price v. Knights of Honor, and Schonfield v. Turner, cited above.
“The law permits one who is interested in the life of another to become the owner of insurance upon the life of such -other person, either by contracting with the insurance company, or by contract made by the party whose life is insured, or by assignment of the policy after it is issued. If, however, the interest is of a definite character, as that of a creditor of the insured, or of one who may, from the life of the insured, reap some pecuniary advantage of a definite nature, the interest of the holder of such policy will be limited to the amount of such liability at the death of the insured, together with such amount as he has paid to preserve the policy, with interest thereon, and the remainder will be given to the estate of the party insured. Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633; Goldbaum v. Blum, 79 Tex. 638, 15 S. W. 564; Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A. 189; Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893. If the interest of the policy holder should cease before the death of the insured, as if the debt should be paid and premiums advanced, then the whole of the policy will go to the estate of the insured.
“When an insurance company has issued a policy upon the life of a person, payable to one who has no insurable interest in the life insured, or when a policy has been assigned to one having no such interest, the insurance company must nevertheless pay the full amount of the policy, if otherwise liable, because it has so contracted; and it is no concern of the insurer as to who gets the proceeds, except to see that it is paid to the proper parties, under its agreement. It is simply required to perform its contract, and the law will dispose of the money according to the rights of the parties. Ins. Co. v. Williams, 79 Tex. 637, 15 S. W. 478, and authorities cited.”

Fletcher v. Williams (Tex. Civ. App.) 66 S. W. 860, 861 (writ of error denied), is cited as being in conflict with the above cases. The facts are entirely different, and there is no conflict. Fletcher took out a policy of insurance, payable to his father, if living, at his death, and, if not so living, payable to his executors, administrators or assigns. After the father’s death, Fletcher executed an instrument containing this clause: “And I hereby will and direct that in case of my death the benefit of policy No. 65,481, amounting to $1,500, together with all dividends that may be due thereon, be paid in full to my bene, faetress, Mrs. Ellen Bice Williams.”

This instrument was delivered to Mrs. Williams, who kept possession thereof until after Fletcher’s death, when it was probated as his last will and testament, and she claimed and recovered the proceeds through the administration of Fletcher’s estate and subject to payment of Fletcher’s debts.

As said by Chief Justice Connor in that case: “There is a clear distinction in the authorities between policies of insurance payable to a designated benefic-iary, and those made payable to the ‘executors or administrators’ of the insured. The proceeds of policies of the latter class become part of the estate of the insured at his death, and, in our judgment, may, as in case of other property, be disposed of by will, as is expressly held in the following authorities: Page, Wills, § 136; Golder v. Chandler, 87 Me. 63, 32 A. 784; Fox v. Senter, 83 Me. 295, 22 A. 173; Stoelker v. Thornton, 88 Ala. 241, 6 So. 680, 6 L. R. A. 140.”

Because Fred Wilke, the beneficiary, x was not related 'by blood or marriage to the insured, and had no interest in the policy and no claim thereto, except the naked fact that he was named beneficiary, and had no reasonable expectation of pecuniary benefit or advantage from the continued life of the insured, he had no insurable interest in the, life of Herman Finn, deceased, and the trial court erred in awarding him judgment on the policy as against the administrator.

We agree with the Court of Civil Appeals in its finding that the trial court did not err in awarding costs, including attorney’s' fees, to the insurance company. The company at all times admitted its liability under the policy, but did not know to whom to pay the proceeds. Wilke was the named beneficiary, and ordinarily would be entitled to collect, even though only as trustee; the administrator had served notice on the company not to pay Wilke, and both were claiming the fund. As found by the Court of Civil Appeals: “The facts of the case were such as to place it in real doubt or hazard in deciding- between the conflicting claims, and in refusing to pay appellant it acted in the utmost good faith. It was in the position of a stakeholder, and therefore entitled to the remedy of interpleader.”

Such a stakeholder of a fund claimed by different parties is entitled to his costs and reasonable attorney’s fees where his refusal to pay either of the conflicting litigants is in good faith, and liability is not denied. Nixon v. Malone, 100 Tex. 250, 98 S. W. 380, 99 S. W. 403 ; Times Herald Printing Co. v. St. Paul Sanitarium (Tex. Civ. App.) 175 S. W. 1121; Pulkrabeck v. Griffith & Griffith (Tex. Civ. App.) 179 S. W. 282; Beilharz v. Illingsworth, 62 Tex. Civ. App. 647, 132 S. W. 106.

The net proceeds of the policy, or sum due thereunder by the company, therefore amounted to $1,350 (after allowing $150 attorney’s fees to the company on its interpleader), and this was awarded to the administrator by the Court of Civil Appeals and all costs “in this behalf expended” taxed against Wilke.

It was proper to so order, instead of taxing the $150 as costs of court. McCormick v. Bank (Tex. Civ. App.) 106 S. W. 747; Grand Lodge v. Cleo Lodge (Tex. Civ. App.) 189 S. W. 764; Bolin v. Ry. Co. (Tex. Civ. App.) 61 S. W. 444.

We are not called upon to pass Upon the question whether in this suit the administrator would have been entitled to judgment over against Wilke for the amount of the attorney’s fees ordered to be deducted by the insurance company out of the fund, because there is no pleading on which such recovery may be based. It is elementary that all recoveries must be based upon proper pleadings.

The administrator’s suit was against both the insurance company and Wilke, but the primary recovery was sought against the company. In Wilke’s answer he claimed the fund.

. The court found that the fund, payable by the company, amounted to $1,350. The company’s answer alleged by way of interpleader and cross-action that it was a stakeholder in good faith, had deposited the full amount of the policy in the registry of the court, and prayed that the administrator and Wilke be cited to answer thereto, for judgment discharging it from liability, and it be allowed reasonable attorney’s fees and expenses.

In answer to such interpleader, the administrator prayed that the company be denied the relief prayed for, and that he recover as in his original petition prayed, and that Wilke be denied any recovery on the policy, and, in addition, for judgment against Wilke for the sum of $672, alleged to have been loaned him by the insured many years before, and never repaid, but this was barred by limitations, and passed out of the ease.

There was no cross-action,' and no prayer over by the administrator against Wilke for the recovery of whatever attorney’s fees and expenses the court might find allowable to the company and deductible from the amount of the policy. It is true that there is a prayer against Wilke “for all costs in this behalf expended," but that refers to what is properly considered court costs and not to deductible attorney’s fees and expenses payable, at least primarily, out of the fund, and not recoverable as costs of court.

There being nothing in the pleadings to show that the administrator sought such relief and was denied the same, we cannot pass upon the question. Williams v. Simon (Tex. Civ. App.) 235 S. W. 257.

The Court of Civil Appeals correctly disposed of the case, and we recommend that its judgment be affirmed.

CURETON, C. J.

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