author: CRITZ, C. CURETON, O. J.

text:
    COMPTON et al. v. DANNENBAUER.
    No. 5173.
    Supreme Court of Texas.
    Jan. 21, 1931.
    J. I. Warren, of Bonham, and Beauchamp & Lawrence, of Paris, for plaintiffs in error.
    D. H. Cabeen, of Honey Grove, and Cunningham & Lipscomb, of Bonham, for defendant in error.
   CRITZ, C.

The Court of Civil Appeals has made a very extended and comprehensive statement of the facts and issues of this case, and in the interest of brevity we refer to the opinion of that court for a full statement. 4 S.W.(2d) 620, 622. We, however, make the following statement in order that this opinion may bd complete within itself:

Fritz Messerer made a will in 1897. He died in 1927, and this will was offered for probate by Mrs. Margaret Dannenbauer, his sister. Mrs. Mary Compton, another sister, and the children of the deceased sister contested the will on the grounds of undue influence and revocation. The plea of revocation was predicated upon the alleged execution of three other wills, all after the will of 1897, and each of which is alleged to have revoked all prior wills. None of these later wills could be produced, and it was alleged that they were lost. The case went to the district court, where there was a trial before a jury, finding the issue of undue influence against the contestants. It was further found by the jury that the deceasfed had executed a second will in 1900 and a third will in 1919, in each of which he revoked all previous wills. The judgment refused to probate the will of 1897. The case was appealed to the Court of Civil Appeals, where the judgment of the trial court was reversed and the cause remanded for a new trial on account of the rejection of certain evidence offered by the proponent regarding certain statements made by the deceased during his lifetime, but after the execution of the 1927 will and not a part of the transaction of execution.

The following statement from the opinion of the Court of Civil Appeals presents the issue:

“During the trial the proponent, Margaret Dannenbauer, was called as a witness by the contestants and was asked this • question: ‘Did Fritz ever tell you about writing another will?’ to which she answered, ‘No.’ On cross-examination the witness was asked by her-counsel this question: T will ask you if Fritz had any trouble in the way of sickness when he sent for the will?’ to which the witness answered, ‘Well, he was kind of sick last winter.’ Counsel then said: T will ask you if he did not at that time tell you this was his will and that he had never made any other?’ At that juncture the contestants objected to any statements made by the deceased as to the contents of the will or what he had done, and further because the witness was disqualified under the law to testify to any transactions between herself and the deceased. The objection was sustained. The bill of exception shows that if the witness had been permitted to do so, she would have answered as follows: ‘Fritz Messerer had stated to her during his last illness that this was the only will that he hád ever made, and that he had never made any other.’
“Proponent’s witness Henry Allen was asked the following question:
“ ‘Now, Mr. Allen, I will ask you to state what, if anything, Mr. Messerer said as to whether or not his will (the will offered im-próbate) was the only will he had written, and whether he desired to change it’
“Contestants objected upon tbe ground that the testimony sought to be elicited would be hearsay, too remote, and a legal conclusion of deceased as to the effect of any instrument which he might have signed.' The court sustained the objection. The bill of exceptions shows that if permitted to do so, witness would have answered:
“ ‘Eritz Messerer stated to me at that time that the will prepared by Will Gross in 1897 was the only will that he had ever signed or attempted to execute, and that he desired his property to go according to the direction of the will.’
“R. T. Lipscomb was called by the proponent as a witness, and testified without objection that he visited Eritz Messerer in Honey Grove, Tex., at his request during the early part of the year 1927. He was then asked the following question:
“ ‘What did he tell you, if anything, with reference to the will that is offered for probate?’
“That testimony was objected to upon the ground that it was irrelevant, immaterial, and inadmissible for any purpose, being the statement of the testator made 30 years subsequent to the making of the will offered for probate. The court stated, in effect, that he would admit the testimony upon the issue of undue influence, but would restrict it to that alone. The witness was then permitted to answer:
“ ‘As stated, he (Messerer) went back to the back part of his business and sat down, get this out (the will offered for probate), and handed it to me and had me Tead it over, and I did, and he told me that the will as it was written was the way he wanted his property to go; He told me that he wanted his property to go to his sister Mrs. Dannenbauer. He said in that connection that he had a sister, as I remember, at Denton, or at least had lived there.’
“On objection, the court refused to permit the witness to further state:
“ ‘That this sister at Denton, Mrs. Compton, had not been there and helped him as much as Mrs. Dannenbauer, and that there had been some claim by Mrs. Compton as to an interest in the property, and that it was his desire, and had been all along, that Mrs. Dannenbauer have all the property after his death.’
“There was other similar testimony excluded, but that which has been quoted is sufficient for a discussion of the controlling questions presented in this appeal.”

At the threshold of this case we are presented with a question of jurisdiction. It is contended that this court is without jurisdiction of this ease because only a question of the admissibility of evidence is presented in the application. It is true that it has been held that the Supreme Court will not grant a writ of error under subdivision 6 of article 1728, R. C. S. of Texas 1925, as amended by Acts 1927, Fortieth Legislature, c. 144, p. 214 (Vernon’s Ann. Civ. St. Art. 1728, subd. 6), to review a case where the bare issue of the admissibility of evidence is the only question presented, unless the evidence is decisive of the case. Browder v. Memphis Independent School District, 107 Tex. 535, 180 S. W. 1077. However, subdivision 6 of article 1728, supra, defining the jurisdiction of the Supreme Court, is not intended to limit the jurisdiction of this court as defined in the five preceding subdivisions of such article, but, on the other hand, subdivision 6 is intended to enlarge thereon. It follows, therefore, that the Supreme Court has jurisdiction of all cases defined by the first five subdivisions of the statute, and, where jurisdiction is acquired under any of.the first five subdivisions, it is immaterial whether the issues present questions of substantive law or not.

Article 1728, supra, so far as applicable to this case, reads as follows:

“The Supreme Court shall have appellate jurisdiction coextensive with the limits of the State, extending to all questions of law arising in the following cases when same have been brought to the Courts of Civil Appeals from final judgment of trial courts: * * *
“2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any question of law.”

Under subdivision 2 of'article 1728 above quoted, this court has-jurisdiction where the writ of error is granted to settle a conflict, even though the only issue presented be one involving the admissibility of evidence. The writ in the instant ease was granted for such purpose. We therefore hold that the Supreme Court has jurisdiction.

The real question presented by this appeal is whether the ■ statements of the testator, made after the execution of the 1897 will offered for probate, such statements not being a part of the transaction of execution, to the effect that he had never made a will except the one offered for probate, could be admitted in evidence to establish, or aid in establishing, the contention of the proponent that the will offered had not been revoked.

We here call attention to the fact that our statute provides that a will can only be revoked by a subsequent will, codicil, or declaration in writing executed with like formalities as those required for the executioh of the will itself, or by the testator destroying, canceling, or obliterating the same, or causing it to be done. R. C. S. of Texas 1925, art. 8285. In this connection it is contended that the will offeréd was subsequently revoked in the way and manner required by the above-cited statute. There is evidence in the record of sufficient probative force, if believed by the jury, to support this contention.

In order to decide the question presented, we deem it expedient to review at some length the authorities, which we shall now proceed to do.

The four leading decisions of our Supreme Court bearing on the question here presented are the cases of Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619; Johnson v. Brown, 51 Tex. 65; Kennedy v. Upshaw, 64 Tex. 411; and McElroy v. Phink, 97 Tex. 153, 76 S. W. 753, 754, 77 S. W. 1025.

In Tynan v. Paschal the suit was to probate and establish a lost will. During the trial, the proponent offered much testimony regarding statements made by the testator after the alleged date of the lost will tending to support the theory of its execution. These statements were to the general effect that he had made the will; that he wanted the beneficiaries named therein to have his estate, giving the reasons why; that he did not want certain other persons to have the estate, and evidencing hostility to such other persons, etc. The general trend of this testimony was to detail many statements made by the testator after the will was contended to have been executed supporting the theory of its execution.

The Supreme Court, speaking through Judge Moore, fully upheld the admissibility of the above testimony, and held that statements and declarations made by the testator after the execution of a purported lost will are admissible in evidence, but that such statements and declarations cannot within themselves, and standing alone, be of sufficient probative force to establish a fact. In other words, if evidence has been offered in the record of sufficient probative force to establish a fact, the statements and declarations'of the testator may be considered by the jury for the purpose of strengthening the primary evidence. To say the least, Tynan v. Paschal is certainly authority for holding the declarations and statements of the deceased, made after the execution of the will, and not a part of the transaction itself, admissible in evidence as touching the main issue in the case, that is, whether a lost will offered for probate was in effect executed by the deceased.

In Johnson v. Brown, supra, it is shown that the suit was a contest of an instrument, purporting to be the lost will and testament of J. W. Warren, deceased. The probate of the instrument was resisted by certain heirs on the ground that it was a forgery. During the progress of the trial, the court admitted evidence regarding declarations of J. W. Warren, made both before and subsequent to the date of the proposed will, tending to prove his unfriendly feelings toward two of the principal beneficiaries in the will. The opinion reviews the authorities at some length, and final-* ly holds that evidence of statements made by the deceased, both before and after the purported date of execution of the will, were admissible in evidence in a case where the issue in a will contest is forgery. This case cites Tynan v. Paschal, and is in harmony therewith, in Tynan v. Paschal, the statements of the deceased, made after the date of the purported will, were held admissible in aid of the probate thereof, and in Johnson v. Brown the statements of the deceased, made both before and after the date of the purported will, were held admissible in evidence against the probate. Both of these cases involve the question as to whether the will was in fact executed, and the evidence was held admissible on that question.

In Kennedy v. Upshaw, supra, it is shown that no question was involved about the due execution of the will of one James H. Martin, which was offered for probate by appellees, but it was claimed that the codicil to said will was a forgery. During the course of the trial, the proponent offered to prove by certain witnesses that they had heard J. H. Martin malfe statements to the effect that he had not made any change in his will, or in the disposition of his property, and was not going to do so, etc., and expressing surprise that he should be asked a question with reference to such matter. It is shown that these statements were made after the purported date of the codicil, and the statements were offered in aid of the contention that the codicil was not executed and was a forgery. In passing upon the admissibility of this testimony, our,-Supreme Court, speaking through Judge Stay-ton, reviewe'd the authorities at some length, and held that the testimony was not admissible. The opinion further holds in effect that statements and declarations of the deceased made after the execution of the instrument are not admissible on the issue of forgery. The opinion in this case does not refer to Tynan v. Paschal or Johnson v. Brown. In our opinion, the effect of the holding in Kennedy v. Upshaw is in conflict with both of the prior cases.

In McElroy v. Phink, supra, it is shown that the matter involved a proceeding to probate the will of Mariah E. MeElroy, deceased, alleged to have been lost. The probate was contested by certain heirs of the deceased. The district court admitted the will to probate. The judgment was affirmed by the Court of Civil Appeals, and the case reached the Supreme Court on writ of error. The opinion discloses the following:

“During the progress of the trial the contestant offered to prove by F. C. Vaden: ‘That, on the day before Mrs. MeElroy left Sherman to go to Ft. Worth to have an operation performed, he had a conversation with her, in which she told him that she had sent and gotten her will, and that she had destroyed it; that she had burnt it up, and that she had decided not to leave her property to Silas Phink; that she was dissatisfied with the way he had treated her, and with the way he was conducting himself. That she told him that'Silas Phink had run through with all the property which he had gotten from the Yaden estate, and, if she and her husband were to leave him their property, he would run through with it the same way. That this conversation occurred with Mrs. McElroy while she was sick at Silas Phink’s house on the day before she left to go to Et. Worth.’ Counsel for the proponent objected to the testimony on the ground ‘that it was irrelevant immaterial, hearsay, and self-serving.’ The objection was sustained by the court, and exception duly taken by the contestants. The ruling of the court was assigned as error in the court of Civil Appeals, and is also assigned in this court. This presents the most difficult question in the case.”

The opinion then proceeds to demonstrate that there is no question in the law on which the authorities are more hopelessly in conflict than the admissibility of the testimony there and here involved. It is shown that against the admissibility of such evidence are to be found the names of Kent, Story, and Livingston, while in favor thereof are to be found the names of Walworth, Ruffin, Lumbkin,. and Cooley. The opinion then discusses Tynan v. Paschal, Johnson v. Brown, and Kennedy v. Upshaw, and calls attention to the fact that Kennedy v. Upshaw makes no allusion to either Tynan v. Paschal or Johnson v. Brown, and says that it is therefore evident that it was not intended in Kennedy v. Upshaw to overrule either Tynan v. Paschal or Johnson v. Brown. The opinion then proceeds to hold that the evidence was admissible, and proceeds to announce the rule in harmony with Tynan v. Paschal and Johnson v. Brown. The opinion in McElroy v. Phink does not expressly overrule Kennedy v. Upshaw, but we think the effect thereof is to do so, and to reaffirm the rule announced in the two earlier cases.

We therefore hold that the rule announced in McElroy v. Phink, Tynan v. Paschal and Johnson v. Brown is now the rule in force in this state. We are aware that very good reasons may be given for and against both rules, but we think the better reasoning supports the holding in McElroy v. Phink, and, furthermore, that being the last expression of our Supreme Court, should be adhered to, unless some good reason can be given for overruling the same.

The views we have expressed are in harmony with the views of the Court of Civil Appeals in the instant case. It follows that the judgment of the Court of Civil Appeals which reverses the judgment of the district court and remands this ease to the district court for a new trial should be affirmed.

CURETON, O. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


source: Caselaw Access Project

author: HARVEY, C. OURETON, C. J.

license: Public Domain

text:
    LEE v. HALL MUSIC CO.
    No. 5111.
    Supreme Court of Texas.
    Jan. 21, 1931.

      Smith & Smith, of Anson, for plaintiff in error.
    Scarborough & Wilson, of Abilene, for defendant in error.
   HARVEY, C.

The Hall Music Company sued Mrs. Viola Lee upon certain promissory notes executed by her in December, 1924. The plaintiff’s petition does not disclose on its face that Mrs. Lee is a married woman ; but Mrs. Lee, by answer filed, duly pleaded the fact of her cover-ture both at the time of suit and at the time the notes sued on were executed. By supplemental petition the plaintiff, the music company, averred that the husband of Mrs. Lee was permanently insane and confined in the State Insane Asylum at the time the notes sued on were executed, and so remained at the time of trial. There is no averment contained in the original petition or in the supplemental petition of any other fact than the insanity of Mr. Lee to show liability of Sirs. Lee, as a married woman, on the note. There is no allegation in the pleadings of the music company to show that the note was executed by Mrs. Lee for necessaries for herself and children, or for the benefit of her separate estate, or in the matter of the management and control by her of community property. In short, the consideration fox- the notes, or the purpose for which they were executed, is not alleged. The case was tried to 'the court without a jury. There is no statement of facts or bill of exception contained in the record. The trial court rendered a personal judgment against Mrs. Lee for the amount of the notes. The judgment contains the following recitals: “It appearing to the court that this suit was filed against Mrs. Viola Lee, and the defendant pleaded coverture at the time of the execution of the notes; and plaintiff, by supplemental petition, pleaded that coverture should not defeat plaintiff’s cause of action, because at the date of the contract the defendant’s husband -had been permanently adjudged insane, and was confined in the insane asylum. The court heard the evidence in the case, and it appeared to the court, and “the court finds as a fact that the defendant was a married woman at the time the' note was executed but that her husband had been permanently adjudged insane, and was at the time duly committed by proper order of the court to the insane asylum, where he has continuously been confined since the order was entered, and that the order was in full force and effect, and that the defendant’s husband has been at all times since confined in the asylum under and by virtue of said order; the court was therefore of the -opinion that the defendant had the authority to contract, and it appearing to the court that plaintiff’s demand was liquidated, fo-wit: certain promissory notes described in its petition, and the court after -hearing the evidence, pleading, and argument, is of the opinion that plaintiff should recover.”

From the' above judgment Mrs. Lee appealed, and the judgment was affirmed by the Court -of Civil Appeals. 1 S.W.(2d) 932.

It will be observed from -the foregoing statement of -the case that personal liability of Mrs. Lee on the notes depends exclusively o-n her power to contract generally, on account of the insanity -of her husband, without reference to the question of necessaries for herself and children (if there be any children) or to the control and management by her of property belonging to her separate estate, or to the community, estate of herself and husband. The question -as -to whether or not the bare fact of the insanity of the husband will relieve the wife of the disabilities of cover-ture is presented for decision.

Relevant statutory provisions, existing when the notes were executed, were brought forward in the 1925 revision of -the statutes," and, in the course of this -opinion, will be referred to by article number as they appear there.

A married woman rests under the same disabilities, in respect to -the power to contract, as she did at common law, except as modified by our statutes. Red River National Bank v. Ferguson, 109 Tex. 295, 206 S. W. 923. At common law, the wife, because of coverture, was, as a rule, disabled to contract. Tlie mere fact that her husband was insane did not remove this disability. 30 C. J. p. 718; Shaw v. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; McAnally v. Alabama Insane Hospital, 109 Ala. 109, 19 So. 492, 55 Am. St. Rep. 923, 34 L. R. A. 223 and note. No decision at common law has been found which holds that the wife, because of the insanity of the husband, had the power to bind herself to a contractual liability, even for necessaries. She was regarded, however, as having the powers of a feme sole if her husband was civilly dead; hut “an insane person is not civilly dead. Civil death is that change in a person’s legal and civil condition which deprives him of civic rights and juridical capacities and qualifications, as natural death extinguishes his natural condition. In English law if followed as a consequence of being attainted of treason or felony, and anciently of entering a monastery, or abjuring the realm.” Texas & P. Ry. Co. v. Bailey, 83 Tex. 19, 18 S. W. 481, 482; 11 C. J. p. 794.

Our statutes impliedly invest the wife with power to' contract for necessaries for herself and children, as well as for such expenses as are incidental to the management and control of her separate property and sucli community property as the statutes commit to her charge. R. S. arts. 4614, 4621, 4623. Whitney Hardware Co. v. McMahan, 111 Tex. 242, 231 S. W. 694; Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Gohlman, Lester & Co. v. Whittle, 114 Tex. 548, 273 S. W. 808; Cauble v. Refining Co., 115 Tex. 1, 274 S. W. 120. She also has the implied power under article 4623, to become, jointly with her husband, the joint maker of a note or a surety on any bond or obligation of another. Save in the above respects, the statutes do not give her power to bind herself to personal liability for debts. Under the provisions of article 3678, taken in connection with article 3662, the wife, in case the husband be insane, is authorized to manage, control, and dispose of the community property of herself and husband, if the latter has no separate property and there be no children. These provisions imply the same extent of power in the wife to contract, in matters which are incidental to the management, control, and disposition of the property, as do the other statutes which are involved in the last-cited decisions. No reasonable basis for a different interpretation of articles 3678 and 3662, in their application to the wife of an insane husband, is perceived.

We conclude that, in view of existing statutes, the mere fact that her husband is insane does not have effect to enlarge the contractual powers of the wife, except in respect to community property as last mentioned. On the other hand, the fact that her husband is insane does not impair her power to contract in the other respects authorized by the statutes.

We recommend a consideration by the Legislature of the propriety of so amending the provisions of chapter 27, title 54 of the Revised Statutes of 1925, as to give either spouse, while the other is insane, exclusive authority to manage, control, and dispose of property belonging to the community estate, regardless of whether there be children or not, or whether the insane spouse have separate property or not. -

The plaintiff in error insists that the husband is a necessary party to this suit, under the provisions of article 1985, which provide that “the husband shall be joined in suits for separate debts and demands against the wife, but no personal judgment shall be rendered against the husband.”

If, upon another trial, it should be developed by pleading and proof that the notes sued on are valid‘personal obligations of Mrs. Lee, the fact of her husband’s insanity would afford legal justification for the prosecution of the suit o.n them against her alone. The above statute does not contemplate the joinder of the husband when he is incapacitated to defend the suit in behalf of the wife. The question is analogous to the requirement of law that the owner of a homestead, if a married person, cannot convey the same without the join-der therein of the other spouse. It has been held that, where such other spouse is insane, such joinder is not indispensable, since the law in this respect will not be interpreted as requiring impossible things. Green v. Windham, 115 Tex. 162, 278 S. W. 1101.

Because the notes' sued on are not shown by the plaintiff’s pleadings to have been given by ¡Mrs. Lee for a purpose authorized by law, and Mrs. Lee' having pleaded and established the fact of her coverture, no liability on her part appears. Speer on Marital Rights (3d Ed.) § 530; Trimble v. Miller, 24 Tex. 214; Menard v. Sydnor, 29 Tex. 257. The trial court erred, therefore, in rendering judgment against her for the amount of the notes.

The judgment should be reversed, and the cause remanded.

OURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court and judgment will be entered in accordance therewith.


author: CRITZ, O. CURETON, C. J.

text:
    HUGGINS v. JOHNSTON.
    No. 5118.
    Supreme Court of Texas.
    Jan. 21, 1931.
    Davis, Jester & Tarver, of Corsicana, for plaintiff in error.
    Taylor & Howell, of Corsicana, for defendant in error.
   CRITZ, O.

This suit was originally instituted in the district court of Navarro county, Tex., by R. B. Johnston, defendant in error, against W. M. Huggins, plaintiff in error.

The Court of Civil Appeals makes a very clear statement of the facts and issues of the case, and we refer to the opinion of that court for a full statement. 3 S.W.(2d) 937, 938.. However, in order that this opinion may be complete within itself, we will briefly again state the issues in the case.

The suit was filed by R. B. Johnston against W. M. I-luggins for an injunction to restrain Huggins from issuing, or causing to be issued, recording, or causing to be recorded, in Liberty or Chambers county, Tex., or elsewhere, an abstract of judgment on a certain judgment rendered in the district court of Navarro county, Tex., entitled “Schloss Bros, vs. W. M. Huggins and R. B. Johnston,” and from issuing, or causing to be issued, any writ of garnishment or other process for the enforcement of said judgment as against Johnston or the Humble Oil & Refining Company, which is also made a party defendant ■by this suit.

The trial court filed conclusions of law ana fact, and his findings of fact are fully supported by the record, and are set .out in the opinion of the Court of Civil Appeals. We here reproduce such findings:

“That R. B. Johnston and W. M. Huggins, about 1916, signed a written guaranty for Crescent Clothing Company, guaranteeing a line of credit for. said company to Schloss Bros., not to exceed $5,000, and that thereafter the Crescent Clothing Company went into bankruptcy. That the plaintiff, R. B. Johnston, and the defendant, W. M. Huggins, herein, as a result of said guaranty, executed their written promissory note in the sum of $4,000, ♦ * * and made the same payable on demand, and then indorsed said note to Schloss Bros., to whom said guaranty had been previously given. That they thereafter defaulted in the payment of said note, and Schloss Bros, sued the makers of said note, R. B. Johnston and W. M. Huggins, the Crescent Clothing Company not being a party to said note, in the district court of Navarro county, Tex., same being No. 10653, and, upon service being had, said R. B. Johnston and W. M. Huggins wholly defaulted and judgment was rendered ágainst them jointly aqd severally for the amount of the note. * * * R. B. Johnston -and W. M. Huggins, as defendants in said suit, filed no pleadings whatsoever, and the court, in rendering judgment, rendered same against Johns ton and .Huggins jointly and severally, and the judgment, in no wise provided for subrogation of either of said parties if they paid off said judgment. Execution was issued on said judgment and placed in the hands of the sheriff, but was never served and no return made thereon. While the execution was in the hands of the sheriff, J. A. Thompson purchased said judgment from Schloss Bros., * * * taking an assignment of said judgment from Schloss Bros. A few days thereafter J. A. Thompson * * * transferred said judgment to the Corsicana National Bank and 'gave said bank an assignment to the same. * * * A few days after the bank acquired said judgment, W. M. Huggins, the defendant herein, paid to said bank the‘full amount of said judgment, paying something over $4,700, and took from said bank an assignment and transfer of said judgment. The judgment records in the district court of Navarro county was not marked as satisfied at the time W. M. Huggins paid the bank the full amount of said judgment * * * and had the same transferred to hin * * * R. B. Johnston had no propertj •whatever and no lien of any kind existed se curing said judgment, and none had attach ed by virtue of execution issued and abstract of judgment filed in Navarro county, Tex Said judgment was transferred to W. M. Huggins by said bank in the year 1920. W. M. Huggins brought no suit whatever against his codefendant in the original suit, B. B. Johnston, for subrogation or for contribution after he took an assignment of said judgment, and no abstract of judgment was filed in Chambers and Liberty county, where the land affected is located, until the year 1926, more than two years and more than four years after the defendant, Huggins, had taken a transfer of the judgment from the bank. In the summer of 1926, after the plaintiff in this case, B. B. Johnston, had acquired the property in question by inheritance from his mother, who had recently died, the defendant, W. M. Huggins, caused to be filed in Chambers and Liberty counties abstracts of judgment, which affected the title to the lands described in plaintiff’s petition. The Humble Oil & Befining Company having purchased a mineral lease on said land in 1926 from plaintiff, B. B. Johnston, holds in its hands as the property of the plaintiff the sum of approximately $5,600, more than ample to pay off any sum of money that .might be due to the defendant, Huggins, and they are, under an agreement introduced in evidence, mere stakeholders in said cause and have tendered the amount of money into court to be paid as directed by the court.”

The case was tried before the court without a jury, and judgment rendered making a temporary injunction theretofore granted permanent, adjudging that Johnston was entitled to the money tendered into court by the oil company, decreeing that Huggins had acquired no lien upon the property of Johnston, ordering abstracts of judgment filed against the land in which Johnston was interested canceled, and quieting Johnston’s title to said land, etc. Huggins appealed from this judgment to the Court of Civil Appeals, which court affirmed the judgment of the trial court. The case is before the Supreme Court on writ of error granted on application of Huggins.

From the statement we have made it is evident that the main question to be decided is whether Huggins’ remedy against Johnston is on the original judgment itself, or on the obligation which the law implies on the part of Johnston to reimburse Huggins for one-half the amount Huggins was compelled to pay on the judgment.

It is not necessary for us to decide the question as to whether the execution of the note by Huggins and Johnston to Schloss Bros, eliminated, in all events, the issue of principal and surety as between the clothing company and its sureties. That question is not here involved as we understand the authorities of this state. When the clothing company was adjudged a bankrupt, and Huggins and Johnston were sued by the payee on the note given to Schloss Bros, in settlement of their obligation on the original contract of guaranty, and the clothing company not made a party to the original suit, they were, as to the issues of this ease, both principals or co-obligors. Ft. Worth National Bank v. Daugherty, 81 Tex. 301, 16 S. W. 1028.

In the case just cited, it is shown that E. T. Morris, T. H. Wilson, and T. B. Jones all signed as sureties the notq of one E. L. Morris. E. L. Morris died, and was not suedl IL appears that the bank recovered a judgment against the three parties first named. It is also shown that E. T. Morris was insolvent. An execution was issued on this judgment and levied upon the property of T. B. Jones, and he, to prevent the sale of his property, paid off the judgment, and the owner, the bank, receipted and made a transfer thereof to T. B. Jones. T. B. Jones then attempted by pluries execution to enforce the judgment against T. H. Wilson. Under this condition of the record our Supreme Court expressly held that in a case where the principal is not sued, but only the sureties, the issue of principal and surety is not involved, and that, in a case where only the' sureties are sued, and no adjudication of suretyship is had in the judgment, such issue could not be subsequently made so as to affect the right to issue execution on the judgment. It is then held that the judgment, having been paid by T. B. Jones, was discharged, and there was no authority for the subsequent issuance of an execution upon it as upon an unsatisfied judgment at the request of T. B. Jones or for his benefit.

In the case at bar we have in every respect the same legal issues that were involved in Ft. Worth Nat. Bank v. Daugherty, even if it be admitted on behalf of Huggins that the giving of the note by Johnston and himself to Schloss Bros, did not of itself eliminate the issue of suretyship. In Ft. Worth Nat. Bank v. Daugherty, the principal was dead, and was not sued. In the instant case the principal was legally dead by virtue of bankruptcy and not sued. In Ft. Worth Nat. Bank v. Daugherty the judgment was taken against all three sureties, and no issue of suretyship was adjudicated in the judgment. In the instant case, the judgment was taken against the makers of the note who were the two sureties on the original bond. In Ft. Worth Nat. Bank v. Daugherty one party was compelled to pay the judgment to prevent the sale of his property and took a transfer thereof ; the same is true in the instant case. In Ft. Worth Nat. Bank v. Daugherty, the party paying, and who at the time took a transfer to himself, attempted to enforce the judgment by execution against his cosurety or co-defendant ; the same is true in this case. In Ft. Worth Nat. Bank v. Daugherty our Supreme Court held that the facts showed as a matter of law the satisfaction and extinguishment of the judgment as such. The same conclusion, therefore, must be reached in this case. It follows, of course, that, if the judgment was extinguished in the instant case, and could not be enforced by execution, any effort to fix a judgment lien on the land of Johnston by recording an abstract of such judgment would fail of its purpose and be wrongful.

It is contended by Huggins that, even if it be admitted that the judgment as such had been extinguished, that Johnston having ■invoked the jurisdiction or aid of a court of equity in the instant suit, and it being conclusively shown that he had not paid anything on the judgment, he must now do equity, and cannot plead the statute of limitation on the obligation which the law implies on his part to reimburse Huggins. In this connection it is contended that the court has all of the parties before it, and can adjudicate the rights of such parties. These contentions cannot be sustained. It is true that equity requires those who invoke the aid of a court of equity to do equity, but it is also the rule that equity will follow the law, and, since the law guarantees to Johnston the right to plead the statute of limitation where such statute bars the right of recovery, Johnston is violating no rule of equity in pleading the statute of limitation as a bar to the right of recovery on the issue of implied promise of reimbursement.

For the reasons stated, the judgment of the Court of Civil Appeals ought to be affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: LEDDY, O. CURETON, C. J.

text:
    EMPLOYERS’ CASUALTY CO. v. ROCK-WALL COUNTY et al.
    No. 5054.
    Supreme Court of Texas.
    Jan. 21, 1931.

      Lawther, Pope, Leachman & Lawther and Leachman & Gardere,. all of Dallas, for plaintiff in error.
    Wallace & Taylor and Mack L. Vickrey, all of Dallas, C. G. Miller, of Royse City, and Thomas R. Bond, of Terrell, for defendants in error.
   LEDDY, O.

Rockwall county entered into a construction contract with Kirk & Patterson, a copart-nership, for the building of a stretch of concrete road for the performance of which contract Kirk & Patterson executed a bond in the sum of $35,000 with the Employers’ Casualty Company as surety. The contractors defaulted in the performance of their contract, and the work was taken over by the surety company. At the time of the execution of the bond, and upon the taking over of the work by the surety company as well, the contractors made an assignment to the surety company of all of the deferred payments and retained percentages and any and all moneys and properties due and payable to them at the time of any breach or default in the contract or cessation of work thereunder “or that may thereafter at any time become due and payable” to them on aeount of said contract.

The surety company completed the contract to the satisfaction of the county, at which time there remained in the hands of Rockwall county, as part of the retained percentages due on the contract, $3,861.85, to recover which sum the surety company instituted • its suit. The Farmers’ National Bank of Rockwall claimed the entire fund under an assignment from Kirk & Patterson, made subsequent to the assignment to the surety com-' pany, and Paul Snow, the McDonald Hardware Company, and J. H. Smith, each claim-tog as a materialman, by suit or intervention sought a recovery accordingly. The suits were consolidated and tried to a jury; an instructed verdict was returned in favor of Farmers’ National Bank of Rockwall for the balance due on the contract in the hands of the county, less $500- attorneys’ fees allowed to the county, to favor of the Snow Motor Company against the contractors and the surety company for the sum of $914.47, in favor of Rockwall county for $500 attorneys’ fees, in favor of McDonald. Hardware Company against the contractors in the sum of $1,134.09, and against the surety company for the sum of $25, and in favor of the surety company against the contractors in the sum of $6,175.20. On appeal, the Court of Civil Appeals affirmed the judgment in favor of the hank and Snow, but reversed the same as to the hardware company and Smith and as to the county’s recovery of attorneys’ fees, and remanded the cause. 300 S. W. 148.

The bond executed by the surety company acknowledges liability “to all persons who may perform labor or furnish • materials on such contract and agreement, or in any manner incident to the performance thereof,” and to “pay all subcontractors, workmen, laborers, mechanics and furnishers of material in full for all work done, labor performed and material furnished on the performance of said contract and agreement or in any manner incident to the performance thereof.”

The Farmers’ National Bank insists it was entitled to a judgment against the surety company upon the theory that it stood in the position of a laborer and furnisher of material within the terms of the bond because it loaned the contractors money on their note with the agreement and understanding that the proceeds of such loan would be used by the contractors to discharge bills for labor and material incurred in the performance of the contract. There is no pretense that at the time the bank made the loan to the contractors there was any assignment, or agreement for assignment, to the bank by laborers and materialmen whose bills were to be paid out of said funds; the only assignment claimed, by the bank being the one executed by the contractors.

The identical question here presented was decided adversely to the bank’s contention by the Supreme Court in Hess & Skinner Eng. Co. v. Turney, 110 Tex. 148, 216 S. W. 621, 623, in which it was determined that a bank lending money to a contractor to be used for the payment of labor performed and material furnished on construction work did not become subrogated to the rights of the laborers and materialmen so as to be protected by the bond. See, also, Gaylord v. Loughridge, 50 Tex. 577; Lion Bonding & Surety Co. v. Bank (Tex. Civ. App.) 194 S. W. 1012.

The bank further contends that, under the assignment' executed to it by the contractors, it is entitled to the funds in the hands of the county as against the claim of the surety company. We think the surety company’s right to such funds is superior to that of the bank, as it appears the former took over the construction work upon default of the contractor, and fully performed all of the obligations of the contract. By reasoon of such fact, it became entitled, under the assignment made by the contractors in their application for the bond, as well as by sub-rogation, to the retained funds in the possession of the county. Hess & Skinner Eng. Co. v. Turney, supra; O’Neil Engineering Co. v. First Nat. Bank (Tex. Com. App.) 222 S. W. 1091; Southern Surety Co. v. Klein (Tex. Civ. App.) 278 S. W. 527; Prairie State Nat. Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412; Columbia Digger Co. v. Rector (D. C.) 215 F. 618, 621; Maryland Casualty Co. v. Washington Nat. Bank et al., 92 Wash. 497, 159 P. 689.

In this connection the bank asserts that the surety company is not entitled to claim any rights on its application assignment, as the same was only operative in the event the contractors abandoned or defaulted in the performance of their contract. In view of the fact the trial court gave a peremptory instruction, we must be able to say that the evidence shows conclusively, as a matter of law, that the contractors abandoned or made default in their contract with the ■ county before we can hold the assignment held by the surety company from the contractors became effective.

It was shown without dispute that the contractors allowed their bills for labor and material in the performance of their contract to go unpaid, in violation of the terms thereof, informing the surety company that they were unable financially to proceed further with the performance of the work, and demanding that it take over the job, which it did, and completed the same to the satisfaction of the county.

We have no difficulty in reaching the conclusion that the evidence established, as a matter of law, there was an abandonment or default on the part of the contractor's. Their acts and conduct constituted a clear-cut default, justifying the surety company in making the effort to minimize its loss by assuming performance of the contract. 6 ft. C. B. 1024; 13 C. J. 651.

The surety company challenges the correctness of the action of the trial court in peremptorily instructing the jury to return a verdict against it in favor of the Snow Motor Company for the full amount of its account on the ground that none of the items constituting said account were for labor and material furnished the contractors within the purview of the bond.

This contention must be sustained in part, as items aggregating $491.40 were for automobile parts, tires, and accessories used on equipment belonging to the contractors. None of such articles constitutes material furnished within the terms of the bond (Hess & Skinner v. Turney, cited supra); it being the duty of the contractors to provide their own equipment.

The balance of the account of the Snow Motor Company was made up of two items, one for oil and gasoline furnished the contractors for operating automobiles, trucks, and concrete mixers, used in the construction work for the county. The other consisted of labor performed in necessary repair work by the auto mechanics employed by the motor company on automobiles and trucks used in the performance of the work by the contractors.

The question as to whether the surety company is liable for the above two items of the motor company’s account under the terms of its bond is foreclosed by the decision of the Supreme Court in Hess & Skinner Eng. Co. v. Turney, heretofore cited. The Court of Civil Appeals in' that ease sustained a recovery against a surety on a similar bond for ordinary repairs on the contractor’s equipment used in performing the contract, as well as for fuel furnished for the operation of an engine used in such work. When the case was finally decided by the Supreme Court, it did not discuss the correctness of the allowance of these items as labor and material within the terms of the bond. At the concluding portion of its opinion, however, this language was used: “The remaining assignments complain of rulings in which we find no error.” An examination of the record of the case then before the court shows that the surety company presented and urged in its application for writ of error assignments com-plaihing of the allowance of said items as not being labor and material within the purview of the bond. It also appears that the surety company vigorously presented the same contention in its motion for rehearing in the Supreme Court, which was overruled. The identical question. before us was therefore necessarily decided adversely to the surety company’s present contention.

The surety company has not presented any assignment pointing out wherein the judgment against it in favor of the McDonald Hardware Company for $25 was not a proper one; hence such judgment will not be disturbed.

The defendant in error Smith was denied the right to intervene in the consolidated suit, and the Court of Civil Appeals reversed that part of the judgment. The pendency of another suit by Smith in the county court upon the Claim made the basis of his intervention was not a sufficient ground for denying him the right of intervention in this case, as the statute requires various claimants under the surety bond to litigate their claims in one suit. Article 5162, R. S. 1925.

In this character of action the penalty of the bond, which represents the potential liability of the surety, determines the jurisdiction. American Surety Co. v. Foust (Tex. Com. App.) 272 S. W. 445, 446. The county court therefore had no jurisdiction of the suit brought .by Smith against the surety company; hence the pendency of such action was in no way a bar to Smith’s right to intervene and prosecute his claim against the surety on -the bond in the only forum authorized to adjudicate the same.

The surety company also challenges the right of Rockwall county to be allow'ed $500 out of the fund deposited in court as attorneys’ fees for filing its bill of interpleader. The county was entitled to maintain an interpleader suit if there existed a reasonable doubt, either of fact or law, as to which of the conflicting claimants was entitled to .receive payment of the funds held by it. Greenwall v. Ligon (Tex. Com. App.) 14 S.W. (2d) 829; Wright v. Grand Lodge K. P. (Tex. Civ. App.) 173 S. W. 270, 271; Nixon v. Malone (Tex. Civ. App.) 95 S. W. 577; Melton v. American Surety Co. (Tex. Civ. App.) 240 S. W. 574, 575; Williams v. Simon (Tex. Civ. App.) 235 S. W. 257.

In view of the claim being asserted by Farmers’ National Bank under an assignment from the contractors, and of numerous other claimants as furnishers of 'labor and material, all asserting some right to the funds held by the county, we are not prepared to say the county was not justified in entertaining a reasonable doubt, both of law and fact, as to whether all of this fund could with safety be paid to the surety company.

Furnishers of labor and material are given a lien upon such funds (Vernon’s Ann. Civ. St. arts. 5472a and 5472b), and it appears that some of the claimants had served the county with notice for the evident purpose of fixing the statutory lien. The validity of these claims against the fund was necessarily dependent upon issues of fact'as to whether the claimants had furnished labor and material for the construction work to entitle them to a lien against the fund for the amount claimed. The county did not rest under the duty of attempting to settle such . questions of fact; its only safe course being to file its pleading in court admitting it held the balance due under the road contract and asking that the conflicting claimants be re-, quired to establish the validity of their claims.

The writer acknowledges valuable aid and assistance received in the preparation of this opinion from the opinions heretofore written by Judges Speer and Critz when this case was before the Commissions.

The judgments of the district court and of the Court of Civil Appeals will be reversed in part, reformed in part, undisturbed in part, and judgment shall be entered as follows: The Farmers’ National Bank shall take nothing in its claim against Rockwall county or the Employers’ Casualty Company, and shall pay one-half of the costs incurred in the trial court; the Employers’ Casualty Company is entitled to recover against Rock-wall county for the sum of $3,361.85, being the .balance due by it after deducting the $500 attorneys’ fees allowed; the fund deposited by the county shall be paid to said company in full satisfaction of its judgment against said county; that the defendant in error Paul Snow recover of the Employers’ Casualty Company the sum of $523.07, with interest thereon at the rate of 6 per cent, per annum from June 7, 1926; together with all costs of the trial court; that, as to defendant in error Smith, the cause be remanded to the trial court for trial against the makers of the bond, including plaintiff in error; that judgment in favor of plaintiff in error against D. S. Kirk, J. R. Patterson, and J. G. Braddock be reformed so as to reduce the recovery awarded by the trial court against them to the sum of $2,813.35, with 6 per cent, interest thereon from June 7, 1926, together with all costs of the trial court; that one-half the costs of the trial court be awarded against the Employers’ Casualty Company; costs on appeal will be equally divided between Paul Snow and the Farmers’ National Bank; that in all other respects and as to other parties the judgment of the trial court is not disturbed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author:
SHORT, C.
      CURETON, O. J.

text:
    EMPLOYERS’ CASUALTY CO. v. WOLFE CITY et al.
    No. 5165.
    Supreme Court of Texas.
    Jan. 21, 1931.
    Lawther & Pope, of Dallas, for plaintiff in error.
    Bowman & Bowman and Clark, Harrell & Starnes, all of Greenville, and Jones & Jones, of Mineóla, for defendants in error.
   SHORT, C.

The municipality of Wolfe City brought this suit against T. A. Bradshaw, with whom it had a contract to build a public work, and his surety, Employers’ Casualty Company, in which First State Bank of Wolfe City and also another, in the capacity of a material-man, intervened, in the district court of Hunt county. Upon a trial before a jury, judgment was rendered against Bradshaw and the Employers’ Casualty Company, which judgment was, by the Court of Civil Appeals at Dallas, affirmed, where the nature and result of the case are more fully stated. Bradshaw v. Wolfe City, 3 S.W.(2d) 527.

Both Bradshaw and the Employers’ Casualty Company were granted writs of error by the Supreme Court, and, the case having been referred to section A of the Commission of Appeals, an opinion was rendered by Judge Critz of that Section, in which it was recommended that the judgment of the Court of Civil Appeals and of the district court, awarding First State Bank of Wolfe City a recovery against the Employers’ Casualty Company for $3,800, interest, and 'cost, be reversed, and that judgment be rendered for the Employers’ Casualty Company, denying the bank any recovery against it, that the judgment of both courts, in favor of A. A. Humphrey, another intervener, for $95.55 be affirmed, and that in all other respects the judgment be reversed and the case remanded for a new trial; the costs of appeal being equally divided between the city and the bank, which recommendation was, by the Supreme Court, adopted, and in which the Supreme Court also approved the holding of the Commission of Appeals on the question discussed. 25 S.W. (2d) 320.

However, upon motion for rehearing, on account of the fact that the Supreme Court had granted a writ of error in the case of Employers’ Casualty Co. v. County of Rockwall, involving one of the principal legal questions involved in this case, the judgment of the Commission of Appeals was set aside, and a rehearing granted, and the case has been re-argued before the Supreme Court. In the meantime, the case of Employers’ Casualty Co. v. County of Rockwall having been referred to Section B of the Commission of Appeals, it was there submitted, and an opinion has been written by Judge Deddy of that Commission, which has been adopted by the Supreme Court, 35 S.W.(2d) 690, discussing fully one of the questions involved in. this case, and we refer to the opinion of that case for a full discussion of the law on that subject, to the effect that, where a bank loans money to a public contractor which is use£. by him in accordance with his agreement with the bank to pay laborers on a public work contract, it cannot recover against the surety on said bond, on the theory that it is subrogated to the rights of the laborers. Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621.

The opinion of Judge Critz, we find, upon a re-examination of the case, to he in all respects correct and clearly decisive of all the material matters presented by the record. This opinion is' readopted in connection with the opinion rendered in Employers’ Casualty Co. v. County of Rockwall, 35 S.W.(2d) 690. In the ease last mentioned it is said:

“Rockwall county entered into a construction contract with Kirk & Patterson, a co-partnership, for the building of a stretch of concrete road for the performance of which contract Kirk & Patterson executed a bond in the sum of $35,000 with the Employers’ Casualty Company as surety. The contractors defaulted in the performance of their contract, and the work was taken over by the surety company. At the time of the execution of the bond, and upon the taking over of -the work by the surety company as well, the contractors made an assignment to the surety company of all of the deferred payments and retained percentages and any and all moneys and properties due and payable to them at the time of any breach or default in the contract or cessation of work thereunder ‘or that may thereafter at any time become due and payable’ to them on account of said contract.
“The surety company completed the contract to the satisfaction of the county, at which time there remained in the hands of Rockwall county, as part of the retained percentages due on the contract, $3,S61.85, to recover which sum the surety company instituted ■ its suit. The Farmers’ National Bank of Rockwall claimed the entire fund under an assignment from Kirk & Patterson, made subsequent to the assignment to the surety company, and Paul Snow, the McDonald Hardware Company, and J. H. Smith, each claiming as a materialman, by suit or intervention sought a recovery accordingly. The suits were eonsolidáted and tried to a jury; an instructed verdict was returned in favor of Farmers’ National Bank of Rock-wall for the balance due on the contract in the hands of the county, less $500 attorneys’ fees allowed to the county, in favor of the Snow Motor Company against the contractors and the surety company for the sum of $914.-47, in favor of Rockwall county for $500! attorneys’ fees, in favor of McDonald Hardware Company against the contractors in the sum of $1,131.09, and against the surety company for the sum of $25, and in favor of the surety company against the contractors in the sum of $6,175.20. On appeal, the Court of Civil Appeals affirmed the judgment in favor of the bank and Snow, but reversed the same as to the hardware company and Smith and as to the county’s recovery of attorneys’ fees, pnd remanded the cause. 300 S. W. 148.
“The bond executed by the surety company acknowledges liability “to all persons who may perform labor or furnish materials on such contract and agreement, or in any manner incident to the performance thereof,’ and to ‘pay all subcontractors, workmen, laborers, mechanics and furnishers of material in full for all work done, labor performed and material furnished in the performance of said contract and agreement or in any manner incident to the performance thereof.’
“The Farmers’ National Bank insists it was entitled to a judgment-against-the surety company upon the theory that it stood in the position of a laborer and furnisher of material within the terms of the bond, because it loaned the contractors money on their note with 'the agreement and understanding that the proceeds of such loan would be used by the contractors to discharge hills for labor and material incurred in the performance of the contract. There is no pretense that at the time the bank made the loan to the contractors there was any assignment, or agreement for assignment, to the bank by laborers and materialmen whose bills were to be paid out of said funds; the only' assignment claimed by the bank being the one executed by the contractors.”

Section B of the Commission of Appeals in that case, after discussing at length the identical question of the rights of the bank to be subrogated to the rights of the laborers, under almost the same situation presented by the facts in this case, holds that no such sub-rogation exists, citing in addition to Hess & Skinner Engineering Co. v. Turney, supra; O’Neil Engineering Co. v. First National Bank (Tex. Com. App.) 222 S. W. 1091; Southern Surety Co. v. Klein (Tex. Civ. App.) 278 S. W. 527; Prairie State National Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412; Columbia Digger Co. v. Rector (D. C.) 215 F. 618, 621; Maryland Casualty Co. v. Wash. National Bank et al., 92 Wash. 497, 159 P. 689.

In view of the full discussion of this question, in the Employers’ Casualty Co. v. County of Rockwall, and in view of the fact that it is the only serious question presented by the record, not fully discussed in the opinion of Judge Critz, we deem further discussion unnecessary.

Judgments of the district court and the Court of Civil Appeals for A. A. Humphrey are affirmed. Judgments of the district court and the Court of Civil Appeals for the First State Bank of Wolfe City, Tex., against Employers’ Casualty Company for $3,800, interest and cost are reversed, and judgment rendered denying the bank a recovery from the casualty company. In all other respects the cause is remanded for new trial, and costs of appeal are taxed against the city and the bank; each being adjudged to pay one-half.

CURETON, O. J.

Tlie foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: PER CURIAM.

text:
    COUSINS v. SOVEREIGN CAMP, W. O. W.
    No. 5678.
    Special Supreme Court of Texas.
    Feb. 19, 1931.
    Gofer & Cofer, of Austin, for plaintiff in error.
    D. E. Bradshaw, of Omaha, Neb., Black & Graves, of Austin, and Robert' M. Turpin, of Tulsa, Okl., for defendant in error.
    Argued before BRADLEY, Special C. J., and SANFORD and HENDERSON, Special JJ.
   PER CURIAM.

Plaintiff in error instituted this suit in the district court of Travis county against the Sovereign Camp, Woodmen of the World, wherein he sought and recovered a judgment from which the Sovereign Camp appealed to the Court of Civil Appeals. That court reversed the judgment of the trial court and rendered judgment for the Sovereign Camp; and to the latter judgment this court granted a writ of error.

A full and correct statement of the case appears in the opinion of the Court of Civil Appeals, by Special Chief Justice Abney, in 26 S.W.(2d) 453.

The writ of error was granted because this court was of opinion the issue herein discussed is of sufficient importance to the jurisprudence of the state to justify its consideration here.

The issue is whether’a foreign corporation having an agent and doing business in one of the counties of this state, in which it is sued, resides in such county within the meaning of article 2253, Rev. St. 1925, as amended by Acts 1927, c. 15, § 1 (Vernon’s Ann. Civ. St. art. 2253), and is required to file its appeal bond within twenty days after notice of appeal is given, or whether it is allowed thirty days to file its appeal bond, where the term of court may by law continue more than eight weeks.

Article 2253, so far as it applies to the issue here under consideration, is as follows:

“If the term of court may by law continue more than eight weeks, the bond, or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in. the county, and -within thirty days, if he resides out of the county.”

The term of the trial court at which the judgment was rendered was one which, by law, might continue more than eight weeks (R. S. art. 199, subd. 53); and the defendant in error is a foreign corporation, organized under the laws of the state of Nebraska, has a permit to do business in the state of Texas, has appointed the commissioner of insurance its attorney upon whom service may be had as provided by article 4843, and has a local camp in Travis county, in which county the judgment was rendered. The appeal bond was filed more than twenty, and less than thirty, days after notice of appeal was given.

Plaintiff in error contends that this court is without jurisdiction, except to reverse the judgment of the Court of Civil Appeals and direct the enforcement of the judgment of the trial court, basing his contention upon the argument that under the provisions of the statute, defendant in error resides in Travis county, and thus had only twenty days in which to file its appeal bond; and having failed to do so, did not seasonably prosecute its appeal. The issue, then, is whether defendant in error resides in Travis county, within the meaning of the statute.

In the inception of this suit, plaintiff in error alleged that defendant “is a fraternal beneficiary association, duly incorporated under the laws of the State of Nebraska, and has its principal office in the City of Omaha, Nebraska,” and defendant in error has been referred to and treated as a foreign corporation. No contention' is made that it was domiciled elsewhere than in the city of Omaha, but plaintiff in error now bases his contention upon the meaning of the word “resides,” in the statute;

The cardinal principle of statutory construction is to ascertain the legislative intent from the statute. Koy v. Schneider, 110 Tex. 369, 218 S. W. 479, 221 S. W. 880, and. authorities there cited. To that end all available sources may be consulted. Among such sources are the contemporary history of the state, the circumstances of business usage, and the life and habits of the people at the time of the passage of the act. /

In the case of Higgins v. Rinker, 47 Tex. 393, the Supreme Court, speaking through Chief Justice Roberts, says;

The law should be construed in reference to the habits of business prevalent in the' country at the time it was enacted. The law was not made to create or shape the habits of business, but to regulate them, as then known to exist.”

And in ex parte Roquemore, 60 Tex. Cr. R. 282, 131 S. W. page 1101, 1104, 32 L. R. A. (N. S.) 1186, the Court of Criminal Appeals, in an admirable opinion by Judge Ralmsey,-later of this court, states the rule thus:

“In undertaking to fix and place meaning upon statutes, we should do so in the light of contemporaneous history, and in reference to the habits and activities of our people.”

This statute was passed as part of one of the early practice acts of the state, and has been brought down in almost identical language since 1883. It is obvious that the Legislature, in passing the act under the conditions existing in 1883, intended to give a defeated litigant who did not live in the county of the forum a sufficient length of time to go to his home and secure the execution of an appeal bond with sureties and return to the forum and file it. Travel was tedious in those days, and the Legislature allowed what it considered a sufficient length of time for the appellant to travel to his home and return before the door of appeal should be closed to him. Hence, an appellant residing out of the county was allowed thirty days in which to file his bond, instead of the twenty days allowed to one residing in the county.

Furthermore, the Legislature must have intended the extension of time for the benefit of persons charged with the burden of determining and perfecting appeals, who resided at the greater distance from the seat of litigation. There is no apparent reason for this extension of time if it was intended to apply the shorter time to parties at great distance from the court merely because they may have had business agents on the ground. It was more reasonable to make the test depend upon the location of the party who controlled the whole scheme of the litigation, which, in this case, is the corporation itself, at its domicile in another state.

Another rule of construction is that a remedial statute must be construed liberally, to effectuate the purpose of its enactment. In the early case of Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722, Justice Wheeler had before him the question of the sufficiency of an appeal bond, and it is there said:

“The Constitution guaranties the right of appeal. The laws, regulating the exercise of the right, are intended to afford the party every possible facility in its furtherance, consistent with a due regard to the rights of the opposite party; and they should be so construed, as most certainly and effectually to attain this object.” See, also, Peck v. Powell (Tex. Civ. App.), 259 S. W. 640.

As to the meaning of the word “resides,” as used in the statute, plaintiff in error earnestly insists that defendant in error resides in Travis county because it has a local camp in that county, with a secretary who acts in some capacity as an agent of the Sovereign Camp. But this suit is not an action against the subordinate lodge; it is against the Sovereign Camp. True, the subordinate lodge may be a part of the larger organization known as the Woodmen of the World and the Sovereign Camp a part of that organization; but as we understand the organization of this fraternal order, the most that can be said, in a legal sense, is that the subordinate lodge is an agent, or rather an agency, of the Sovereign Camp. It is clear, therefore, that the contention that the Sovereign Camp resides in Travis county, Tex., cannot rest upon this ground.

Plaintiff in error further contends that a corporation resides wherever it does business, and stresses the holdings of the courts of Missouri, which, he claims, support his contention here; but without going into a detailed consideration of the opinions of the intermediate courts of that state, it may be remarked that its Supreme Court considered this contention in Donohue v. Southwestern Surety Ins. Co., 281 Mo. 267, 219 S. W. 930, 932, and therein assumed, without committing itself, however, to the proposition, that their “statute makes a foreign insurance company a resident of every county in the state for the purposes of a suit against it.”

But in the course of that opinion (281 Mo. 267, 219 S. W. page 932) the court says:

“None of these statutes, by conferring jurisdiction over the nonresident, brings him into the county or state for any other purpose. So far as the time for taking his appeal is concerned, he remains a nonresident of the county still. The nonresident of the county who comes into the jurisdiction is served and judgment rendered against him. When he desires to appeal, his distance from his home is taken into account and the law grants him time on that account. It extends the same clemency and favor to the nonresident of the state who is caught within the jurisdiction. The foreign insurance company, as far as this law is concerned, stands on the same footing. It is forced into the jurisdiction as a condition for the transaction of business in the state, but is not, by the words or any reasonable implication of the law, excepted from the statutory grant of favor as to the time allowed for his appeal. The plaintiff, as we have said, might leave his own home and go to the most inaccessible county in the state to bring- his suit, but the Legislature reasonably and justly permits the defendant time to go and return for the purpose of taking his appeal.”

The Missouri court there distinguished between venue statutes and statutes governing the right of appeal — a distinction which must be drawn in this case. The venue was laid in this case under article 1995, subd. 27.

The statute lays down the general rule that, “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile,” and then adds, “except in the following eases,” And then, illogically, it seems, includes among the exceptions subdivision 27, authorizing foreign corporations to be sued in any county in which they may have an agent. While not properly an exception to a statute dealing with the venue of suits against inhabitants of this state, subdivision 27 is included among the exceptions as a result of legislative patchwork. It should be a special statute in itself, fixing venue for a class of defendants for which no other provision is made; but, considering it as an exception, along with all the other exceptions, we see that the Legislature has seen fit, in view of the exigencies of various situations, to ordain that a litigant may be torn from his home and made to litigate where he does not reside. So then, the statute laying venue of this case in Travis county does not fix the residence of the defendant in error in that county, but specifically provides a forum for the suit, in disregard of the place of residence of the defendant. It follows, then, that the venue statutes do not aid the construction sought to be placed by plaintiff in error upon this statute relating to appeals.

The mere fact that the commissioner of insurance has been appointed attorney to accept service for defendant in error, and that the commissioner resides in Trayis county, cannot bring the body of the corporation into Travis county and give it a residence there. He is merely an agent, a separate and distinct entity, and the corporation is not thereby brought into that county. It is, by law, domiciled in the state of its creation and may neither migrate nor expatriate. If it may carry on its business in a foreign jurisdiction, it must be done by its agent. Fletcher Cyc. Corp. vol. 8, page 9296, § 5706, states the rule thus:

“A corporation has its legal domicile in . the country or state by or under whose laws it was created, and in that country or state only, even though it may be engaged in business and have an office in another country or state. Unlike a natural person, a corporation cannot change its domicile at will, and although it may be permitted to transact business where its charter does not operate, it does not on that account acquire a residence or domicile there.”

We are therefore of opinion and hold that, giving due consideration to the reason for this provision of the statute, and with proper liberality in the construction of a remedial statute (State v. O’Connor, 96 Tex. 484, 73 S. W. 1041; Falls v. Key [Tex. Civ. App.] 278 S.W. 893, 896; O’Connor v. State [Tex. Civ. App.] 71 S. W. 409, 410-412), although defendant may have had a subordinate branch of its business in the county where the judgment was rendered against it, it was given the longer time of thirty days within which to file its appeal bond after notice of appeal was given.'

There is no dispute in the entire record of the fact, that defendant in error is incorporated and exists under the laws of the state of Nebraska and has its principal place of business in that state. Hence, the finding of the trial court with reference to its residence must be treated as a conclusion of law, as it was doubtless intended; but, in any event, a finding of fact based upon undisputed evidence is an issue of law and is within the jurisdiction of this court. Texas Loan Agency v. Fleming, 92 Tex. 458, 49 S. W. 1039, 44 L. R. A. 279.

We are in full accord with the opinion of the Court of Civil Appeals upon the issues discussed by it, and find it unnecessary to discuss the other issues in the case, beyond stating that its determination of those issues is approved.

Finding no error in the judgment of the Court of Civil Appeals, it is affirmed.


author: LEDDY, J. CURETON, C. J.

text:
    In re RAMON’S ESTATE. RAMON et al. v. WORSHAM.
    No. 1227-5596.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    Hicks, Hicks, Dickson & Bobbitt, Schlesinger & Schlesinger, and Harry L. Howard, all of San Antonio, and Pope, Pope & Pope, of Laredo, for plaintiffs in error.
    Mann, Neel & Mann, of Laredo, for defendant in error.
   LEDDY, J.

Application was made in the county court of Webb county to probate the will of Eugenio T. Ramon, deceased, by defendant in error, Thomas Worsham, Jr., who was named executor in such instrument.

A sister of testator, Vincenta R. de Gon-gora, joined by her husband, filed a contest of the will setting up lack of testamentary capacity in the testator and charging the use of undue influence upon him to procure its execution.

Upon trial in the county court, judgment was entered probating the will, from which the contestants duly perfected an appeal to the district court.

After the case reached the district court, the proponents of the will filed a plea setting up that one Angelita Sobrevine had filed an independent suit in the county court contesting the will, 'and was therefore a proper party to this suit, and she was made a party in the district court for the first time. She filed an answer setting forth that she was the common-law wife of testator at the time of his death, and joined the other contestants in seeking to sot aside the will on the ground of lack of testamentary capacity upon the part of the testator and because of undue influence brought to bear upon him to bring about the execution of the will.

The case was submitted to a jury on special issues covering the two issues involved, • both of which were answered by. the jury in favor of the defendant in error. Thereupon the court entered judgment admitting the will to probate and denying the plaintiffs in error Yincenta R. de Gongora and Angelita Sobrevine the relief prayed for.

The plaintiff in error, Angelita Sobre-vine, presents several assignments challenging the correctness of the ruling of the trial court in several particulars which could only have affected her as a contestant. None of the questions presented by her can be considered by this court for the reason that the judgment of the district court as to her is void, because it appears from the face of the record she was not a party to the contest of the will in the probate court from which the appeal was taken to the district court. She became a party to this suit for the first time after the cause had reached the district court on appeal from the judgment rendered in the county court. Under such circumstances, the district com't was wholly without jurisdiction to render any judgment in favor of or against her, except to enter an order dismissing her from the case. Leatherwood v. Stephens (Tex. Com. App.) 24 S.W.(2d) 819.

The probate court, under our law, is vested with exclusive original jurisdiction in the matter of probating wills. Const. art. 5, § 16; article 3433, R. S. 1925; Hutchens v. Dresser (Tex. Civ. App.) 196 S. W. 969. The district court has no original jurisdiction in such matters; it being confined to the exercise of appellate jurisdiction over judgments rendered in the probate court. Const. art. 5, § 8; articles 3290, 3291, R. S. 1925; O’Neil v. Norton (Tex. Com. App.) 29 S.W.(2d) 1060. It is true that, when an appeal is taken from a judgment probating a will in the county court, the case is tried de novo in the district court, but such trial must be between the same parties who appeared in the county court. Leatherwood v. Stephens, supra. If the district court should attempt to exercise power to adjudicate the rights of persons not parties in the contest of a will in the probate court, it would constitute the exercise of an original, instead of an appellate, jurisdiction, which it does not possess under the laws of this state. Franks v. Chapman, 60 Tex. 46; Franks v. Chapman, 61 Tex. 576; Heath v. Layne, 62 Tex. 686; Fisher v. Wood, 65 Tex. 199.

The fact that there was pending in the county court a proceeding instituted by Angelita Sobrevine to contest the will involved in this case would not operate to give the district court jurisdiction over her contest made for the first time in this case in the district court. Such jurisdiction would not attach until the case instituted by her in the county court had been tried and an appeal perfected therefrom to the district court.

The evidence on the issue of insanity of testator at the time he executed the will was very sharply conflicting. In this state of the record plaintiffs in error offered to prove by the county clerk of Webb county, and by introducing three separate judgments of the county court of Webb county, showing Manuel Ramon, brother of testator, had been three times adjudicated of unsound mind by such court, and also that he died in the Southwestern Insane Asylum at San Antonio while confined under one of those judgments. Defendant in error objected to this testimony on the ground that it was immaterial to any issue in the case and that no proper predicate had been laid because it had not been shown that the insanity from which the brother of testator was suffering was of a hereditary nature. These objections were sustained by the trial court, and the proposed evidence excluded.

We conclude this evidence was material on the issue as to the testator’s sanity and should have been admitted by the trial court. While the insanity of immediate relatives of a person does not prove that he is insane, yet it is corroborative of independent testimony to that effect, and should always be received to be considered for such purpose. McLeod v. State, 31 Tex. Cr. R. 331, 20 S. W. 749; Shaeffer v. State, 61 Ark. 241, 32 S. W. 679; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; In re Myer, 184 N. Y. 54, 76 N. E. 920, 6 Ann. Cas. 26; State v. Simms, 68 Mo. 305; Pringle v. Burroughs, 185 N. Y. 375, 78 N. E. 150, 7 Ann. Cas. 264; Martin v. Beatty, 254 Ill. 615, 98 N. E. 996; Lewis v. Mason, 109 Mass. 169; Com. of Pennsylvania v. Dale, 264 Pa. 362, 107 A. 743, 6 A. L. R. 1482, and cases cited in note; Page on Wills § 703, pp. 1186, 1188; Cyc. vol. 40, p. 1155, notes 34 and 35; p. 1156, notes 42 and 43; C. J. vol. 32, p. 760, par. 565, notes 70, 71, and 72; Wharton & Stiles, Med. Jur., 375, 377.

Defendant in error insists that such testi-' mony was properly excluded by the trial court because there was no evidence showing that the Ramon named in the three lunacy proceedings was in fact the brother of testator. We think this contention is refuted by the bill of exception taken to the exclusion of the evidence, as it shows the plaintiffs in error “offered to prove by the county clerk, and the records in the office of the county clerk, that Manuel Ramon, a brother of deceased, was of unsound mind after regular proceedings had in the county court for that purpose.”

We do not think reversible error is shown by bill of exceptions No. 11, as it appears that the portion of the witness’ testimony complained of was given before objection was made and was subsequently withdrawn by defendant in error; the jury being instructed by the court not to consider it for any purpose. The testimony was not of such an inflammatory nature as that the effect thereof on the jury could not be removed by a timely admonition from the trial court. Galveston, H. & S. A. R. Co. v. Clark, 21 Tex. Civ. App. 167, 51 S. W. 276; Galveston, H. & S. A. R. Co. v. Still, 45 Tex. Civ. App. 169, 100 S. W. 176.

In view of the reversal of the ease for the reason indicated, we do not deem it necessary to pass upon plaintiffs in error’s complaint as to improper remarks made by defendant in error’s counsel in his closing argument to the jury, as it is not likely that such remarks will be repeated upon another trial of the case.

We recommend that the judgments of the district court and the Court of Civil Appeals [20 S.W(2d) 351] be reversed, the cause dismissed as to Angelita Sobrevine, and remanded for another trial between the remaining parties.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause dismissed as to certain parties, and remanded as to others, as recommended by the Commission of Appeals.

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


author: SHARP, J. OURETON, C. J.

text:
    WILSON et al. v. DICKSON et al.
    No. 1393-5611.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    B. P. Gafford and W. J. Durham, both of Sherman, for plaintiffs in error.
    Mike E. Smith and Fred Dudley, both of Fort Worth, Hamp P. Abney, of Sherman, and R. D. Evans, of Waco, for defendants in error.
   SHARP, J.

For the sake of convenience we will describe the parties to this suit as plaintiffs and defendants as was done in the trial court.

This suit was originally brought in the district court of Grayson county by W. L. Dickson and R. M. Gilbert, as equitable trustees for the Baptist Missionary and Educational Convention of the State of Texas, a colored religious corporation, against E. Arlington Wilson, J. S. Simmons, T. S. Boone, J. H. Harrington, Joseph A. Brown, P. W. Wesley, J.S. Adair, and D. K. Williams. Plaintiffs charged the defendants with fraud in obtaining possession of certain corporate offices and in handling the affairs of the corporation, and asked for an accounting.

They further alleged that defendants were wrongfully in control of certain offices in that organization and were in possession of property belonging to such corporation. They also alleged that the defendants had been serving as officers and trustees of such corporation for many years prior to the date plaintiffs filed their first original petition. In that petition plaintiffs’ prayer was for a temporary injunction restraining defendants from serving as officers at the 1928 annual meeting of such corporation. They alleged that defendants were claiming their rights to act as officers at the 1928 annual meeting by virtue of having been elected to such offices at the corporation’s annual meeting held in Paris, Tex., in 1927, which plaintiffs claimed was an illegal election.

Plaintiffs, on October 20, 1928, adopted the petition filed on the 17th of October, 1928, by Dickson and Gilbert, and on said date filed a second original petition where W. L. Dickson and R.-M. Gilbert were joined by A. Jordan, T. W. George, Jr., A. W. Pryor, I. S. Barron, W. F. Bledsoe, W. M. Coleman, and S. 43. Stephens. In this petition plaintiffs styled themselves as the executive trustees of the Baptist Missionary and Educational Convention of the State of Texas, alleging that plaintiffs had been elected trustees of such corporation at the 1928 annual meeting of the Baptist Missionary and Educational Convention of Texas, which was then in session at Sherman, Tex. They complained that defendants were falsely holding themselves out as the head of a minority group of delegates as officers and agents of the corporation. Plaintiffs’ prayer under such petition was for an enlargement of the injunction granted by the Honorable E. E. Wilcox, Judge of the Fifty-Ninth Judicial District, under the petition filed by W. D. Dickson and R. M. Gilbert on October 17, 1928, so as to prevent defendants from acting in any way as officers of the corporation.

The case was tried* upon its merits before the Honorable Silas Hare, Judge of the Fifteenth Judicial District of Texas, without a jury. The trial judge entered a judgment in favor of defendants and dissolved the injunction that had been issued in the ease. An appeal was taken to the Court of Civil Appeals at Dallas, and that court reversed and rendered, in part, and affirmed, in part, the judgment rendered by the trial court. 21 S.W.(2d) 1072, 1075. A writ of error was granted by the Supreme Court.

In addition to the temporary writ of injunction granted by Judge F. E. 'VÍ'ilcox, the Court of Civil Appeals entered orders authorizing writs of injunction, or prohibition, against both plaintiffs and defendants. The Supreme Court also granted a writ of injunction, or prohibition, against the defendants in error, who were the plaintiffs in the trial court, restraining said defendants in error from holding the meeting of the Baptist Missionary and Educational Convention of the State of Texas at Dallas on the 5th day of February, 1930, and from holding a corporate meeting of the Baptist Missionary and Educational Convention of the State of Texas at any other time and place in the State of Texas during the pendency of this causé in the Supreme Court until the further orders of said court.

The trial eourt filed its findings of fact and conclusions of law as follows:

“I. The Baptist Missionary and Educational Convention of the State of Texas is duly incorporated under the laws of the State of Texas.
“II. This corporation adopted a constitution, Article IV of which is as follows:
“ ‘Any member in good standing with his or her Church, the same (Church) being a member or cooperant of this Convention or affiliation, may become a member of this Convention.
“ ‘Section 2: The membership of this organization shall be divided into three classes as to enrollment, A. B-, C.
“ ‘A, messengers, laymen and licensed ministers, $2.50.
“ ‘B, pastors or ordained elders $5.00 and
“ ‘C, annual members $2.50.
“ ‘Section 3: Annual members may have equal privileges with the regular messengers and pastors except to hold office; and no Church shall be allowed more than three messengers for each one hundred members represented in the convention.
“ ‘Section 4: No person shall be allowed voice or vote on the floor of- this convention until requirements of Article IV, Sections 1, 2 and 3 shall have been met.’
“III. That at an annual meeting of the Corporation in Paris in 1927, E. Arlington Wilson, J. H. Harrington, H. M. Edwards, J. S. Varner, C. V. Choice, J. S. Simmons, Joseph A. Brown, P. W. Wesley, J. S. Adair, A. M. Moore, and A. S. Terrell, were duly and regularly elected officers of the corporation, and served as such afterwards until the annual Convention of said corporation which assembled in the City of Sherman, October 17, 1928.
“IV. That the annual meeting of the corporation was called to order October P?, 1928, in Sherman, Texas. At this meeting, E. Arlington Wilson was elected President. Prior to his election 59 ministers and 161 messengers had complied with the constitutional requirements of paying their dues.
“V. The majority of the people in the room at the time of the election favored E. L. Harrison for President, but they had not complied with this necessary requirement, hence they were not entitled to vote.
“VI. The program was not carried out as printed, but by a majority vote of the qualified delegates present the order of procedure was amended, and under it E. Arlington Wilson was elected, as above stated.
“VII. That when said corporation assembled at its annual meeting and convention in the City of Sherman, Texas, on October 17, 1928, there were at least eight holdover trustees in attendance there who had charge of the secular affairs of said corporation, and had been elected regularly as the trustees of said corporation prior to tlie meeting of said annual convention thereof in the City of Sherman, Texas, October 17, 1928, and were as follows: J. A. Brown, William B'owden, O. O. Colbert and L. W. Fuller, who were elected such trustees at the annual meeting of said corporation held in Houston, Texas, in October 1926, and J. H. Harrington, H. M. Edwards, W. H. Yarner and O. Y. Choice who were regularly elected trustees of said corporation at its annual meeting in Paris, Texas, in October, 1927.
“YIII. That the annual meeting of said corporation held in the City of Sherman, Texas, in October, 1927, there was regularly elected four trustees for said corporation as follows:. D. L. Penn, J. E. Campbell, Joseph Wilson, Jr., and D. L. Trammell.
“IX. That J. A. Brown, William Bowden, O. C. Colbert, L. W. Fuller, J. H. Harrington, H. M. Edwards, W. H. Yarner, C. V. Choice, D. L. Penn, J. E. Campbell, Joseph Wilson, Jr., and D. L. Trammell, constitute the twelve trustees of said Baptist Missionary and Educational Convention of the State of Texas. That at the time of the service of the writ of injunction issued by order of the Honorable F. E. Wilcox, Judge of the 59th Judicial District of Texas, upon E. Arlington Wilson, J. H. Harrington, T. S. Boone, J. S. Simmons, Joseph A. Brown, P. W. Wesley and J. S. Adair at Sherman, Texas, on October 17, 1928, restraining said persons from acting as officers of said corporation, the election of the officers thereof at said annual meeting of said corporation had already taken place, and said officers of said corporation had been duly declared as the officers thereof.
“X. That the persons who claimed to be delegates to the annual convention of said corporation which assembled in Sherman, Texas, on October 17, 1928, and who constituted the Harrison Faction represented by plaintiffs in this cause did not regularly enroll and pay their, dues to T. S. Boone, chairman of the enrollment committee duly appointed by the officers of said convention, were not enrolled and certified as delegates to said annual convention of the corporation as provided and required by the constitution of said corporation and were not entitled to participate in the proceedings of the said annual meeting or convention of said corporation held in Sherman, Texas, on October 17, to October 21, 1928.
“Conclusions of Law.
“I therefore find for the defendants in this, ease, dissolving the injunction and taxing the costs 'against the plaintiffs.”

Counsel for the defendants contend that the Court pf Civil Appeals exceeded its authority in overturning the findings of fact by the trial court and in rendering final judgment in part as was done in this case. We think this assignment must be sustained.

The trial court found that at the annual meeting of the corporation in Paris in 1927, E. Arlington Wilson, J. H. Harrington, H. M. Elwards, J. S. Varner, C. Y. Choice, J. S. Simmons, Joseph A. Brown, P. W. Wesley, J. ■S. Adair, A. M. Moore, and A. S. Terrell, were duly and regularly' elected officers of the corporation and served as such afterwards until the annual convention of said corporation which assembled in the city of Sherman on October 17¡ 1928.

That when the corporation assembled at its annual meeting in Sherman on October 17, 1928, there were at least eight holdover trustees in attendance who had charge of the secular affairs of the corporation and had been elected regularly as the trustees of the corporation prior to the meeting of the annual convention in Sherman on October 17, 1928, and the holdover trustees were J. A. Brown, William Bowden, O. C. Colbert, and L. W. Fuller, who were elected trustees at the annual meeting in Houston in October, 1926, and J. H. Harrington, H. M. Edwards, W. H. Yarner, and C. V. Choice were regularly elected trustees of the corporation at its annual meeting in Paris in October, 1927.

That at the annual meeting of the corporation held in Sherman, Tex., in October, 1927, there was regularly elected four trustees for the corporation as follows: D. L. Penn, J. E. Campbell, Joseph Wilson, Jr., and D. L. Trammell. That J. A. Brown, William Bow-den, O. C. Colbert, L. W. Fuller, J. H. Harrington, H. M. Edwards, W. H. Varner, C. V. Choice, D. L. Penn, J. E.' Campbell, Joseph Wilson, Jr., and D. L. Trammell constitute the 12 trustees of the Baptist Missionary and Educational Convention of the State of Texas. That at the time of the service of the writ of injunction issued by Honorable F. E. Wilcox, Judge of the Fifty-Ninth Judicial District of Texas, upon E. Arlington Wilson, J. H. Harrington, T. S. Boone, J. S. Simmons, Joseph A. Brown, P. W. Wesley, and J. S. Adair, at Sherman, Tex., on October 17, 1928, restraining them from acting as officers of said corporation, the_ election of the officers thereof at said annual meeting of the corporation had already taken place and that the officers of said corporation had been duly declared as the oifi-eers thereof.

The Court of Civil Appeals in its opinion holds:

“That E. H. Harrison was legally elected president of the convention at its Sherman meeting in October, 1928, and not E. Arlington Wilson, as found by the trial court; that A. W. Pryor, J. S. Barron, T. E. George, jr., and W. L. Dickson were elected trustees, and not D. L. Penn, J. E. Campbell, Joseph Wilson, Jr., and D. T. Campbell, as found by the trial court; accordingly the judgment below is reversed and rendered here in favor of those found by us to have been legally elected, as above named; that other appellants take nothing by their appeal and the judgment below, in all other respects, is affirmed.”

As we construe the opinion of the Court of Civil Appeals, it is in effect held in reaching a conclusion that the evidence shows as a matter of law that some of the defendants were not entitled to recover in this suit, and for that reason overturned the findings of the trial court and rendere'd judgment for some of the plaintiffs, as shown by the foregoing opinion. This holding by the Court of Civil Appeals gives the Supreme Court the power to review the evidence. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Tweed v. Western Union Tel. Co., 107 Tex. 247, 255, 166 S. W. 696, 177 S. W. 957; Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295. While the testimony in some respects is sharply conflicting, yet in view of the findings of fact made by the trial court and of the evidence adduced upon the trial, we are of the opinion that the Court of Civil Appeals erred in reversing and rendering this cause in part as was done. We have carefully considered all the testimony, and we think it tends to support the findings of the trial court and warranted the court in making the foregoing findings.

It is a definitely settled rule in this state that when the trial court makes findings of fact which find support in the evidence introduced upon the trial, the Court of Civil Appeals is not authorized to overturn the findings of fact and render final judgment to the contrary. Patrick v. Smith, 90 Tex. 267, 38 S. W. 17; Houston & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415, 417; Choate v. S. A. & A. P. Ry. Co., 91 Tex. 406, 44 S. W. 69; Eidson v. Reeder, 101 Tex. 202, 105 S. W. 1113. Judge Brown clearly states the rule in the case of Houston & T. C. Ry. Co. v. Strycharski, as follows:

“In the exercise of its appellate jurisdiction, a court of civil appeals may draw from the evidence conclusions of fact different from those arrived at by the jury ot judge, and it may reverse the judgment of the lower court, and remand the cause, for the reason tiat the verdict and judgment are against the weight of the evidence. But the determination of questions of fact as the basis of a final judgment involves the exercise of original jurisdiction which has not been conferred upon the courts of civil appeals.

In view of the disposition that we have made of this case, it is unnecessary for us to pass upon the other assignments of error presented.

Therefore, we recommend the following:

(a) That that part of the judgment of the Court of Civil Appeals, reversing and rendering in part the judgment of the trial court herein, be reversed, and that the judgment of the trial court be in all respects affirmed.

(b) That all orders entered in this cause authorizing the issuance of writs of injunction or prohibition be set aside and all writs issued thereon be dissolved.

OURETON, C. J.

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