author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Carlos REYNOLDS, Appellee.
    Court of Appeals of Kentucky.
    March 15, 1963.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellant.
    Robert L. Gullette, Nicholasville, for ap-pellee.
   MOREMEN, Judge.

A grand jury of Jessamine County returned separate indictments accusing Carlos Reynolds of the crime of uttering a forged check. At a trial held on the indictments the accused entered a plea of guilty to each one and thereupon the court found him guilty and entered an order fixing his punishment at two years’ confinement in the penitentiary on each offense and thereafter, on motion, the court entered an order which reads in part:

“It is ordered and adjudged that the entering of judgment and the sentencing of the defendant are hereby postponed and the defendant is placed on probation under the supervisor of the Division of Probation and Parole for a period of three years subject to defendant’s compliance with the following conditions * *

About a year later Carlos Reynolds was indicted for the crime of maliciously cutting and stabbing another with intent to kill. Upon a trial in the same court the defendant was asked on cross-examination if he had ever been convicted of a felony. Our problem here is whether such a question was proper under CR 43.07, which reads:

“A witness may be impeached by any party, without regard to which party produced him, by contradictory evidence, by showing that he had made statements different from his present testimony, or by evidence that his general reputation for untruthfulness ren- ' ders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.”

It is argued that nothing short of a final judgment of conviction may be used as a basis for attacking the credibility of a witness and that since a final judgment had not been entered, no conviction had been had.

It has been held that the word “convicted” (or “conviction”) is equivocal and its meaning may vary according to its use in a particular statute. DeVeau v. Braisted, 5 A.D.2d 603, 174 N.Y.S.2d 596. The opinion in Dial v. Commonwealth, 142 Ky. 32, 133 S.W. 976, recognized that the word admits of different interpretations and said it had a twofold meaning: One is the determination of the fact of guilt, as by the verdict of a jury or by confession. The other denotes the final judgment in a prosecution when it is employed in speaking of a state of infamy. The truth of those observations will be impressed upon anyone who peruses the thirty-eight pages in Words and Phrases, Vol. 9A, which are devoted to cases in which this word has been defined. The word generally means the ascertainment of defendant’s guilt by some legal mode and an adjudication that the accused is guilty. This may be accomplished by a confession by the accused in open court, a plea of guilty or a verdict which ascertains and publishes the fact of guilt. We believe in the majority of those cases and in the majority of jurisdictions (although we have not counted noses), the word “conviction” is not limited to a final judgment.

In this state we do not seem to have achieved unanimity of thought in each opinion so it is therefore required that we discuss a few of them in detail.

In Foure v. Commonwealth, 214 Ky. 620, 283 S.W. 958, where a witness had been, convicted of a felony — but the case was then, pénding on appeal to this court — the court held:

“While in a proper case a witness may be impeached by asking him as to his being convicted for a felony, this was error for two reasons: First. The Code provision (section 597, Civil Code [of Practice] ), authorizing such impeachment, refers to a judgment of conviction, which of course means the final judgment. Ordinarily, this refers to the judgment of the circuit court, but an appeal in a criminal case suspends the judgment, and this does not become final until a termination of the appeal. If the witness’ case is reversed and on final trial he should be acquitted, it will not be contended that on a subsequent trial he could be impeached by showing such conviction, and during the pendency of the appeal it cannot be determined what the final judgment will be.”

The same conclusion was reached in Consolidation Coal Company v. Vanover, 166 Ky. 172, 179 S.W. 43; Stewart v. Commonwealth, 185 Ky. 34, 213. S.W. 185; Sullivan v. Commonwealth, 158 Ky. 536, 165 S.W. 696.

In Prewitt v. Wilson, 242 Ky. 231, 46 S.W.2d 90, an election contest case, where the votes of two persons had been challenged because the voters had been convicted of a felony and where it was shown that at the trial the jury had returned a verdict of guilty as charged in the indictment and punishment was fixed at one year in the state penitentiary, but where the record did not show that judgment had been entered on the verdict, it was held that under such circumstances the verdict should not he regarded as conviction because “[a] verdict is but the basis of a judgment which carries it into effect.”

It is hard to reconcile the foregoing cases with the late case of Winn v. Commonwealth, Ky., 303 S.W.2d 275, where it was held:

“There is no merit in appellant’s argument that one of his previous felony convictions in Indiana was suspended, therefore it did not amount to a conviction. The obvious answer to this argument is there could have been no suspension of the sentence had there not been a previous conviction. Our habitual criminal statute, KRS 431.190, deals with convictions of second and third offenses and not with whether sentences imposed thereon are served, suspended or probated. * * ⅜ We are not inclined to follow People v. Schaller, 224 App.Div. 3, 229 N.Y.S. 492, holding ‘conviction’ as used in the New York statute implies final judgment or sentence by the court and that increased punishment cannot be inflicted unless the sentence imposed by the original judgment is served. Neal v. Com., 221 Ky. 239, 298 S.W. 704, and City of Pineville v. Collett, 294 Ky. 853, 172 S.W.2d 640, relied upon by appellant, are not in point. They correctly hold that a conviction is not final in case of an appeal until after the appellate court has affirmed the judgment.”

Our rule in connection with the statute dealing with recidivistic criminals seems to differ from the one applied in connection with other statutes. Such distinction must have resulted from an attempt by the courts to determine legislative intent in each case. In Jones v. Kelly, 9 A.D.2d 395, 194 N.Y.S.2d 585, it was said:

“There can be distilled from these decisions one rule that is helpful in deciding the present case. That is the pronouncement in the Fabian [People v. Fabian] case, supra, 192 N.Y. 443, 449, 85 N.E. 672, 674 [18 L.R.A.,N.S., 684] that in the search for the meaning of the word ‘conviction’ or the phrase ‘judgment of conviction’ there is no fixed significance to them and courts are free to look for the legislative intent. As was said in Richetti v. New York State Board of Parole, 300 N.Y. 357, 360, 90 N.E.2d 893, 895: ‘We have had occasion to point out that the word “conviction” is of equivocal meaning and that the use of the term may vary with the particular statute involved. It presents a question of legislative intent.’ (Citing cases.)”

This idea also seems to have been suggested in the opinion in the Dial case where it was observed that the word “conviction” admits of different interpretations.

With that in mind, let us examine CR 43.07 which, by virtue of KRS 447.155 applies to criminal proceedings. The purpose of CR 43.07 was to aid the court and the jury in determining whether a witness is unworthy of belief. This may be accomplished by several means: (2) by contradictory evidence; (b) by showing that he had made statements different from his present testimony; (c) by evidence of his general reputation for untruthfulness; and (d) by conviction of a felony.

The writer has never been convinced that a felon is always a perjuror — but we have accepted that premise and the conception is embodied in our law. Nevertheless, where a felon is offered as a witness, the purpose of impeachment is to show the character of the witness and not the extent or the nature of the punishment which had been inflicted because of his wrongdoing. It is apparent that this trait of character is sufficiently demonstrated and his status fixed when the criminal is found guilty either by a plea of guilty, a verdict or the imposition of a sentence, even though the sentence is never satisfied according to the strict terms of its imposition. As was stated in Tanzer v. United States of America, 9 Cir., 278 F.2d 137:

“Satisfaction of judgment is quite different in its significance from forgiveness of the offense. Satisfaction may be had by serving of sentence or * * * by fulfillment of the terms of probation. Society, in many respects,however, has seen fit to render significant the fact of conviction of a felony and to attach the attributes of status to a convicted felon.”

When a felon is offered as a witness under CR 43.07 the purpose of impeachment is to warn the court and the jury that testimony given by him may not be worthy of belief because of his status as a criminal. The Rule is not concerned with the penalty which may or may not have been imposed or whether, if one was imposed, the accused served out his time in the penitentiary. If it is shown that he has been guilty of a felony and his guilt has been fixed either by a plea of guilty or a verdict of the jury, he has been convicted so far as this Rule is concerned and his testimony is to be accepted with suspicion. If the presumption of innocence has been overcome, the extent of the penalty is of little importance and he has been convicted of a felony under this particular Rule.

It may be noted that under CR 43.07 a witness may be impeached by a general reputation for untruthfulness, but in this connection it is not necessary to show that he ever paid any penalty because of his lack of character. There may be no taint of criminality whatsoever.

Plainly it was the intention of the Rule only to fix the status of the witness and the circuit court erred in rejecting evidence on this point.

The law is so certified.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    Louis T. GARCIA, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.
    No. A-9298.
    Supreme Court of Texas.
    March 13, 1963.
    Rehearing Denied April 10, 1963.
    Reid, Taylor & Sims, San Antonio, for petitioner.
    Matthews, Nowlin, Macfarlane & Barrett, James D. Baskin, Jr., San Antonio, with above firm, for respondent.
   GREENHILL, Justice.

In this workmen’s compensation case, the question is whether the claimant should be limited to a recovery of 52 weeks of compensation because of his refusal to submit to surgery. The trial court, under facts which will be set out, held that he should not be so limited. Judgment was entered for the claimant for total and permanent disability. The Austin Court of Civil Appeals disagreed. It reversed the judgment of the trial court. Since the claimant had already been paid in excess of 52 weeks, it rendered judgment that the claimant take nothing by his suit. 360 S.W.2d 415.

The claimant, Louis Garcia, injured his back when he slipped while carrying 130 pounds of marble. The insurer began to make compensation payments shortly after injury and continued to make them for 82 weeks, up to the time of the Industrial Accident Board’s final award. It also bore the expense of Garcia’s treatment. He was placed in a hospital at Killeen and was moved to a hospital in San Antonio, where he was placed in traction. Both of the doctors who examined Garcia were of the opinion that he had a ruptured interverte-bral disc in the lumbar or lower back region. Both recommended to him and to the insurance company that he have surgery. Garcia at first agreed to surgery, but changed his mind. He was told by the doctors that the odds were SO to 90 per cent in favor of the operation’s being successful; that it would relieve his pain; that it was not regarded as a dangerous operation ; and that he would be benefited materially by it if not cured entirely. But Garcia apparently entertained a fear of paralysis, and the doctors could not guarantee their results. There was testimony that there was some slight chance of infection, of injury from the anesthetic, or of paralysis if the surgery were not carefully done; but that none of this should occur if the operation were conducted by a competent physician. No doctor advised Garcia not to submit to surgery. The insurer tendered Garcia an operation at its expense, but he declined.

So the insurer took other steps set out by the Texas statutes. It admitted liability for the injury, responsibility for the hospital and medical expenses, and demanded in writing that Garcia submit to surgery. The demand was addressed to the Industrial Accident Board. The insurer also wrote Garcia’s attorney of the demand and asked for a reply. Garcia’s counsel declined for Garcia, saying, “My client, at the present time, can receive no assurance that he will not be crippled for the rest of his life if he submits to the operation requested by the insurance company.”

Following the provisions of Sections 12e and 12b of Article 8306, the Board appointed Dr. David Oliver, a physician, to examine Garcia. Dr. Oliver agreed with the diagnosis of the other two doctors, and he too recommended surgery. Garcia told Dr. Oliver he did not wish to be operated upon.

Thereafter the Board entered its final order. It provided that Garcia should be paid $35 per week for 100 weeks. As to the surgery, the order stated, “The Board finds that named insurer filed a Demand for Surgery. Said Demand for Surgery is hereby denied as named employee has declined same.” Notice of appeal to the district court was promptly given.

Trial was to a jury. The claimant made a motion at the outset to exclude any evidence which would refer to the offer of surgery or the benefits to be derived therefrom. The motion was overruled, and that point is not before us. See Hardware Mutual Casualty Co. v. Courtney, Tex., 363 S.W.2d 427 (1963). The evidence from Garcia and the doctors relating to surgery was given before the jury. The jury found that Garcia was totally and permanently disabled, and from these particular findings there is no appeal. The jury also found that Garcia had refused the tendered surgery; that the operation would have effected a cure or would have materially and beneficially improved Garcia’s condition; and that it would not have been more than ordinarily unsafe for Garcia to have submitted to the tendered operation.

The defendant-insurer moved for judgment on the verdict. Its motion was denied. The plaintiff Garcia moved to disregard the answers to the issues as to the operation and for judgment on the rest of the verdict. Garcia’s motion was granted.

While the case was under submission in the Court of Civil Appeals, that Court wrote Garcia through his attorney and asked if he were willing at that time to submit to the operation. Garcia replied that he would, at the time and place selected by the Court, and at the hands of a surgeon selected by the Court, if his compensation payments were accelerated to $105 per week, were paid to date, and upon other conditions. His letter is set out in 360 S.W.2d at 420. The Court of Civil Appeals treated this conditional answer as a refusal to submit to surgery. As stated above, since Garcia had already been paid more than 52 weeks of compensation, the Court of Civil Appeals rendered judgment that Garcia take nothing by his suit.

The rights here involved of both parties are entirely controlled by statute. Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960). And, as stated in Seelbach, “Where the statute directs that action be taken in a certain way it may be performed in no other manner..”

Two sections of Article 8306 are determinative of the matter before the Court, and we construe them together. Section 12e deals with surgery in general. It provides that where liability exists for an injury and surgery will cure dr benefit the employee, the employee or the insurer may demand an operation. After a written demand, “the board shall immediately order a medical examination of the employé in' the same manner as is provided for in the section of this law relating to hernia.” [That is Section 12b which will be referred to below.] If it is shown that the operation is advisable and will benefit the employee, “the board shall so state in writing and upon unanimous order of said board m writing * * * [the board] shall direct the employé * * * to submit himself to an operation for said injury. If the board should find that said operation is not advisable, then the employé shall continue to be compensated * * * under the general provisions of this law. If the board shall unanimously find and so state in writing that said operation is advisable, it shall make its order to that effect, stating the time and place when and where such operation is to be performed, naming the physicians * * *.” The article then says that “if the employé refuses to submit to such operation, the board may order or direct the association [the insurer] to suspend the whole or any part of his compensation during the time of said period of refusal.”

The section referred to as dealing with operations for hernia is Section 12b. It says that if the employee refuses to submit to an operation, the board shall order an examination. The physician selected shall make a written report, signed and sworn to, giving his findings and his opinion as to the advisability of an operation. If the examination and report do not show to the board the existence of disease or other physical condition rendering the operation more than ordinarily unsafe, “and the board shall unanimously so find and so reduce its findings to writing and file the same in the case * * *, then if the env-ployé with the knowledge of the result of such examination, such report, such opinions and such findings, thereafter refuses to submit * * * to such operation, he shall be entitled to compensation * * * for a period not exceeding one year.” This one-year provision is the 52-week limitation prayed for by the insurer.

The statute appears clear to us that the claimant is not to be limited in his compensation until he is put to an election by the Board itself and thereafter declines surgery. Section 12e says in substance if the Board unanimously finds that an operation is advisable, and the Board enters an order in writing directing surgery, then the claimant is put to an election to have the surgery or risk the invocation of the law authorizing the Board to suspend his compensation. Similarly, Section 12b says that if the Board unanimously finds the surgery advisable and shall enter an order in writing directing the surgery, “then [and only then] if the employé with the knowledge of * * * such findings, [i. e., of such written order] thereafter refuses to submit * * * to such operation,” he shall be entitled to compensation for a period not to exceed 52 weeks.

The only order entered by the Board relative to surgery was that it found that the insurer had filed a demand for surgery,, and that “said demand for surgery is hereby denied as named employee has. declined same.” The statute makes it the duty of the Board to make specific findings, wlmn demand for surgery is made. The insurer complied with the steps required of it to invoke the action of the Board, but the Board did not say in writing to the claimant: we think an operation is advisable, is not unsafe, and you are directed to-submit to an operation. Since that was not done, as clearly required by the statute, the claimant was not put to an election to have surgery or not, and he may not have his compensation limited as if he had deliberately elected to decline surgery after having been directed to submit thereto by the Board. The trial court therefore correctly disregarded the findings of the jury with regard to surgery.

We turn now to the action of the Court of Civil Appeals. As previously stated, that Court, on its own motion, wrote Garcia and asked him [in view of the jury’s findings] if he were now willing to submit to an operation. His answer was treated as negative. Judgment was thereupon entered that he take nothing.

This Court said in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 at 523 that “The trial court is not clothed with those powers that are placed exclusively with the Board. Thus the trial court has no power to order or supervise an operation or to direct a medical examination * * In Tally v. Texas Employers’ Insurance Association, 129 Tex. 134, 102 S.W.2d 180 (1937), the trial court undertook to direct the claimant to submit to an operation. This Court said that under our compensation statutes, the ordering of an operation was in the nature of an interlocutory order because other consequences necessary to a final order would vary with the outcome of the operation. The opinion then states that:

“No such power is given the courts in such cases. In this regard, when a hernia case reaches a court, the rights of the parties have already become fixed by the events previously transpiring, and the court only has the power and jurisdiction to finally try the case and enter one final judgment. The court in this case has no power to require a hernia operation.” 102 S.W.2d at 183.

Since it has been held that the trial court ■is without power to order and supervise an operation, the Court of Civil Appeals also lacks such power under our statutes. And since the Court had no power effectively to direct and supervise the operation, select hospitals and physicians, and do such other things as are necessary to protect the claimant, the claimant may not be put to a binding election to submit to such operation as directed by the Court of Civil Appeals or have his compensation limited as for wil-fully refusing to comply with an order of the Board.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . All references to statutes herein are to Yernon’s Texas Civil Statutes Annotated. Emphasis herein is ours.


author: CALVERT, Chief Justice.

text:
    CITY OF DALLAS et al., Relators, v. Honorable Dick DIXON, Chief Justice, et al., Respondents.
    No. A-9340.
    Supreme Court of Texas.
    March 13, 1963.

      H. P. Kucera, City Atty., Dallas, N. Alex Bickley, Asst. City Atty., Will Wilson, Atty. Gen., Austin, Howard Mays, Asst. Atty. Gen., McCall, Parkhurst, Crowe, McCall & Horton, Ritchie, Ritchie & Cross-land, Carrington, Johnson & Stephens, Dallas, for relators.
    James P. Donovan, Dallas, for respondents.
   CALVERT, Chief Justice.

When irrelevant and immaterial matters are eliminated from this direct proceeding in this Court, only two ultimate questions remain for determination: 1. Has this Court jurisdiction to issue a writ of mandamus to a Court of Civil Appeals requiring it, in a proper case, to issue all writs necessary to prevent prosecution of a suit in which the plaintiffs, bound by a prior judgment of the Court of Civil Appeals, seek to relitigate issues which were determined by the prior judgment? 2. If so, does the record before us present a case in which our jurisdiction to issue the writ of mandamus should be exercised?

The City of Dallas and its officials filed a proceeding in the Court of Civil Appeals for the Fifth Supreme Judicial District, sitting at Dallas, in which they sought the issuance of a writ of prohibition to prohibit the prosecution by the plaintiffs and their attorney of Civil Action No. 9276, styled Daniel C. Brown et al. v. City of Dallas et al., pending on the docket of the United State.s District Court for the Northern District of Texas, Dallas Division, and to direct their dismissal of the case. The writ of prohibition was sought on the ground that the plaintiffs in Brown v. City of Dallas are attempting to relitigate issues determined by a final judgment of the Court of Civil Appeals for the Fifth District in Atkinson et al. v. City of Dallas et al., 353 S.W.2d 275, writ refused, no reversible error. The Court of Civil Appeals denied the relief sought 362 S.W.2d 372. The court’s judgment is not reviewable by appeal or writ of error. City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663.

The City of Dallas and its officials now seek a writ of mandamus from this Court directing the Court of Civil Appeals for the Fifth District, and the individual Justices of that court, to issue a writ of prohibition as there prayed for.

Before discussing the two questions posed at the beginning of this opinion, we dispose of two matters which we regard as irrelevant and immaterial.

Respondents urge that relators are not entitled to relief from the Court of Civil Appeals because they seek relief only against the plaintiffs and their attorney in Brown v. City of Dallas and ask only for a writ of prohibition; that writs of prohibition issue to courts and not to litigants. Technically speaking, that is correct, City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663; Lowe and Archer, Injunctions and Other Extraordinary Remedies, p. 482, § 511; High, A Treatise on Extraordinary Legal Remedies, pp. 603-604, § 762 ; 42 Am.Jur. 139-140, 150-151, Prohibition, §§ 2, 3, 11, although the true function of the writ is often overlooked. See Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656. However, incorrect identity of the writ sought is of no significance. Relators seek from the Court of Civil Appeals a writ directing the plaintiffs and their attorney to desist from further prosecution of Brown v. City of Dallas in the United States District Court. If they are entitled to that relief, necessary and proper writs, by whatever names they may be called, should be issued.

Relators suggest in their brief that inasmuch as this Court refused writ of error, no reversible error, in Atkinson v. City of Dallas, the judgment of the Court of Civil Appeals in that case is a judgment of this Court which this Court may enforce by issuing writs to the plaintiffs and their attorney in Brown v. City of Dallas. The judgment of the Court of Civil Appeals in Atkinson v. City of Dallas is not a judgment of this Court. A judgment of a Court of Civil Appeals becomes a judgment of this Court when writ of error is granted for review of the judgment and it is affirmed. Houston Oil Co. of Texas v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087. But when writ of error for review of a Court of Civil Appeals’ judgment is “Refused” or “Refused, No Reversible Error,” this Court simply refuses to grant writ of error for the purpose of reviewing the judgment. City of Palestine v. City of Houston, Tex.Civ.App., 262 S.W. 215, 220, writ dismissed, 114 Tex. 306, 267 S.W. 663.

We now consider whether this Court has jurisdiction to issue a writ of mandamus to a Court of Civil Appeals requiring it, in a proper case, to issue all writs necessary to-prevent prosecution of a suit in which the plaintiffs, bound by a prior judgment of the Court of Civil Appeals, seek to relitigate issues which were determined by the prior judgment.

It is clear that the Supreme Court has jurisdiction to issue a writ of mandamus to a Court of Civil Appeals to compel it to perform a mandatory duty. Simpson v. McDonald, 142 Tex. 444, 179 S.W.2d 239. Jurisdiction is conferred by Article 1733 which authorizes the Supreme Court in original proceedings to issue “writs of * * * mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof, * * *.” Legislative authority for enactment of the statute is found in Sec. 3, Art. V of the Constitution, Vernon’s Ann.St.

Sec. 6, Art. V of the Constitution confers jurisdiction in particular matters on the Courts of Civil Appeals, and provides: “Said Courts shall have such other jurisdiction, original and appellate as may be prescribed by law.” By the enactment of Art. 1823 the Legislature has provided: “Said courts [Courts of Civil Appeals] and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.” Interference with enforcement of a court’s judgment is interference with its jurisdiction, and the quoted constitutional and statutory provisions confer jurisdiction on Courts of Civil Appeals to issue whatever writs are necessary, including the writ of injunction, to enforce their judgments. Long v. Martin, 116 Tex. 135, 287 S.W. 494; Cattlemens Trust Co. of Fort Worth v. Willis, Tex.Civ.App., 179 S.W. 1115; Nash v. Hanover Fire Ins. Co., Tex.Civ.App., 79 S.W.2d 182. But recognition that such jurisdiction exists does not furnish a complete answer to our problem.

Conferral of jurisdiction on a •court to do a given act invests it with power to do the act, Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641; but whether the act is to be done may be either discretionary or mandatory. When exercise of the power is discretionary, its exercise may not be compelled by a superior court. When exercise of the power is mandatory, it may and should be compelled. It follows that whether this Court may and should issue a writ of mandamus to a Court of ■Civil Appeals to compel it to enforce one of its judgments must turn on whether enforcement of the judgment is merely a discretionary right or is a mandatory duty •of the court.

Generally speaking, enforcement of a judgment by the court, which renders it, trial or appellate, is a duty. If a judgment is not enforced, the successful litigant has accomplished nothing; he has his victory hut is denied its fruits. Judgments are rendered for the purpose of settling disputes between the parties to it; they are not to be nullified by either passive nonobservance or active interference. This does not mean, however, that it is the duty of an appellate court to exercise its original jurisdiction to •enforce its judgments in every case. When an adequate remedy is otherwise available to a holder of rights under an appellate court judgment, the court which rendered it may, in its discretion, decline to exercise its original jurisdiction.

One in whose favor an appellate court judgment has been rendered has an adequate remedy to bar a second suit which seeks only to relitigate the issues between the parties, or their privies, and which does not otherwise interfere with enforcement of the prior judgment or with the rights of the parties springing from it. The remedy lies in the trial court in the defensive plea of res judicata; and the fact that the holder of rights under the prior judgment may be put to some trouble, delay and expense in defending the second suit does not render his remedy so inadequate as to require intervention by the appellate court through exercise of its original jurisdiction to enforce its judgment in the first suit. Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577; Brazos River Conservation and Reclamation Dist. v. Belcher, 139 Tex. 368, 163 S.W.2d 183; Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1. If the rule were otherwise, the defense of res judicata to suits in trial courts would soon be abandoned in all instances involving appellate court judgments in favor of original proceedings in our appellate courts. The Supreme Court and Courts of Civil Appeals are primarily courts of review, and there is nothing in the constitutional and statutory provisions, or in our decisions, requiring them to exercise original jurisdiction to enforce their judgments when the same relief may be obtained relatively as expeditiously and inexpensively in the trial courts.

We should recognize, however, that a plea of res judicata as a defense to a second suit is not an adequate remedy for one holding rights under an appellate court judgment when an actual interference with enforcement of the judgment is coupled with the second suit, or when the mere filing and prosecution of the suit destroys the efficacy of the judgment. In such instances we conceive it to be the duty, as well as the right, of the appellate court to exercise its'original jurisdiction to enforce its judgment.

The Supreme Court and the various Courts of Civil Appeals have been prompt to discharge their duty to prohibit the prosecution of suits in which actual interference with enforcement of their judgments has been accomplished through ancillary writs issued by trial courts. Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94; Cattlemens Trust Co. of Fort Worth v. Willis, Tex.Civ.App., 179 S.W. 1115; Nash v. McCallum, Tex.Civ.App., 74 S.W.2d 1046; Browning-Ferris Machinery Co. v. Thomson, Tex.Civ.App., 55 S.W.2d 168; Life Ins. Co. of Virginia v. Sanders, Tex. Civ.App., 62 S.W.2d 348. They have also been prompt to discharge their duty to prohibit the prosecution of suits which cloud title to real property when title has been settled by their prior judgments. Houston Oil Co. of Texas v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087; Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242; Continental State Bank of Big Sandy v. Floyd, 131 Tex. 388, 114 S.W.2d 530; Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656; Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493. It is obvious that in the latter type of case the mere filing and prosecution of the suit destroys the efficacy of the prior judgment.

There are instances in which the Supreme Court and the Courts of Civil Appeals have exercised their original jurisdiction to enforce their judgments by prohibiting the prosecution of second suits involving the same parties and issues when they were under no duty .to do' so. In most of such instances there was a taint’ of flagrant disregard of the appellate court judgment or an element of harassment and vexatious litigation. See Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224; Conley v. Anderson, Tex., 164 S.W. 985; Sparenberg v. Lattimore, 134 Tex. 671, 139 S.W.2d 77; Nash v. Hanover Fire Ins. Co., Tex.Civ.App., 79 S.W.2d 182; Haskell National Bank of Haskell v. Ferguson, Tex.Civ.App., 155 S.W.2d 427; National Surety Corp. v. Jones, Tex.Civ.App., 158 S.W.2d 112; Ferguson v. Ferguson, Tex.Civ.App., 189 S.W.2d 442; City and County of Dallas y. Cramer, Tex.Civ.App., 207 S.W.2d 918. In some reported instances there has been a declination to exercise jurisdiction to enforce prior judgments by prohibiting the prosecution of second suits when there was no duty to do so. Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577; Brazos River Conservation and Reclamation Dist. v. Belcher, 139 Tex. 368, 163 S.W.2d 183. Declination is not usually reflected in a reported opinion; it is evidenced by an order denying permission to file an application for extraordinary writs.

We have written at some length on the first question in an effort to harmonize prior decisions and .to delineate for bench and bar the situations in this area in which the issuance of extraordinary writs by appellate courts to enforce their judgments is discretionary and those in which issuance of such writs is a duty. We recognize that what we have said and held is, to some extent, in conflict with statements in other opinions. In Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, 578, we said that this Court was without jurisdiction to issue extraordinary writs to enforce its judgment when the only purpose of the writs was to prevent the prosecution of a suit “which makes no attempt to obstruct its [the judgment’s] execution, but denies its conclusiveness upon what is alleged to be another cause of action.” In Houston Oil Co. v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087, 1089, although attempting to distinguish Bass, we said that this Court had jurisdiction to issue such writs as were necessary to enforce its judgment by prohibiting the prosecution of a second suit between the same parties, or their privies, if the second suit “directly involves the relitigation of rights established by the judgment, and is of such a nature that, if successfully prosecuted, will result in a judgment which will purport the divesting of those rights.” In neither case did we deal with the problem discussed here, that is,, whether the exercise of jurisdiction, once conceded, is discretionary or mandatory.

It is difficult to conceive of a case between the same parties and directly involving relitigation of rights established by a judgment, which, if successfully prosecuted, would not result in a judgment purporting the divesting of those rights. Even a take-nothing judgment in a personal injury damage suit would establish the right of the defendant not to pay; and a suit by the plaintiff to relitigate the issues, if successful, would result in a judgment divesting that right. We consider Village Mills and other cases, cited above, subsequent in point of time to Bass, to establish jurisdiction of this Court and the Courts of Civil Appeals to issue all writs necessary to prevent prosecution of a suit in which the plaintiffs, bound by a prior judgment of the court, seek to relitigate issues which were determined by the prior judgment. And we hold, further, that exercise of such jurisdiction is mandatory when an actual interference with enforcement of the judgment is coupled with the second suit or when the mere prosecution of the suit destroys the efficacy of the judgment.

Under the rule here announced, if Brown v. City of Dallas, now pending in the United States District Court, is, as relators allege, an effort by parties bound by the judgment in Atkinson v. City of Dallas to relitigate the issues finally determined by the Court of Civil Appeals in that case, it is the duty of the Court of Civil Appeals to enjoin further prosecution of Brown v. City of Dallas. At issue is the validity of certain revenue bonds, known as Love Field Revenue Bonds, sought to be issued and sold by the City of Dallas, and the use of funds derived from the sale for improvement of airport runways at Love Field. If the judgment of the Court of Civil Appeals in Atkinson v. City of Dallas finally adjudicated the validity of the bonds and the right of the City of Dallas to expend funds derived therefrom for improvements at Love Field, the mere prosecution of any subsequent suit attacking the validity of the bonds and the right so to expend their proceeds destroys the efficacy of that judgment. Under the provisions of Section 3, Article 1269j — 5, the authorizing statute, revenue bonds of this type cannot be finally issued until approved by the Attorney General, and the Attorney General does not approve issuance as long as their validity is under attack in pending litigation. The mere filing and prosecution of the Brown suit is as effective to prevent enjoyment of the rights fixed by the prior Atkinson judgment as an injunction to prevent sale of the bonds would be.

The Court of Civil Appeals denied the relief sought by relators on the ground that it had no jurisdiction to grant it. Therefore, that court did not reach the question of whether the plaintiffs in Brown v. City of Dallas were bound by the Atkinson judgment and were, seeking to relitigate issues foreclosed by that judgment. We are convinced by an examination of the pleadings in the two cases that they are.

Forty-three persons joined as plaintiffs in filing and prosecuting Atkinson v. City of Dallas. The suit was filed as a class action. The plaintiffs alleged that they were resident taxpayers of the City and County of Dallas and owners of homes and real property therein. They stated that included in the class which they represented were “the home owners, families and individuals who live, work, reside and attend schools, churches and other community centers in the area embraced within the approach areas of the planned runway,” and that the persons constituting the class they represented numbered in the thousands making it impracticable to bring them before the Court. The plaintiffs sought a permanent injunction against issuance of the Love Field Revenue Bonds and against the building of an extended runway at Love Field.

The petition in Atkinson tendered many reasons why the injunction sought should issue. We will not review them in detail. Generally, it was alleged that all state statutes which purported to authorize issuance of the bonds were unconstitutional and void; that the bonds themselves were void because (1) not authorized by vote of the qualified voters, (2) they created a debt of the City of Dallas without compliance with constitutional requirements and in excess of that allowed by the charter of the City of Dallas, and (3) they constituted a lending- of credit to individuals and corporations without the two-thirds vote of taxpayers required by Sec. 52, Art. Ill of the Constitution. Generally, it was alleged that the building of the runway violated Amendments V and XIV of the Constitution of the United States and Sec. 17, Art. I of the Constitution of Texas in that it would constitute a taking of their air-space without due process of law and denied them equal protection of the laws! that the proposed runway did not comply with Federal regulations as required by state statute; that the noise, smoke and danger from low-flying planes using the runway would disturb the quiet enjoyment of their properties and institutions, diminish the value of their properties and endanger their lives and health; that the establishment and use of the runway would create a public nuisance, and that the action of the City in constructing the runway was ultra vires and arbitrary.

All of these issues and all subsidiary issues raised by the pleadings but not 'here mentioned, as well as all issues which by diligence could have been raised and tried, were determined and foreclosed against the plaintiffs by the judgment of the Court of Civil Appeals affirming summary judgment against them in Atkinson v. City of Dallas. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 47 Am.St.Rep. 79; Ogletree v. Crates, Tex., 363 S.W.2d 431. The fact that this Court refused writ of error, “No Reversible Error,” in Atkinson does not indicate otherwise. It is the judgment of the Court of Civil Appeals, not its opinion, which brings the rule of res judicata into play. The notation, “Writ Refused. No Reversible Error,” casts not the slightest cloud on a judgment of a Court of Civil Appeals. Rule 483, Texas Rules of Civil Procedure.

Respondents assert that the judgment in Atkinson is not res judicata of the issues in Brown because neither the parties nor the issues are the same.

Brown v. City of Dallas was filed by one hundred twenty-two persons, thirty of whom were plaintiffs in the Atkinson case. Others than the City of Dallas were made defendants, i. e., City officials, the Attorney General of Texas, certain securities dealers and their attorneys, and certain owners of bonds already sold. The suit does not purport to be a class action, but the plaintiffs are all described as “taxpayers of the City of Dallas, Texas, and the owners of homes situated within the approach areas of existing and proposed runways at Love Field.”

It is immaterial that Brown is not a class action. The controlling fact is that Atkinson was a class action as authorized by Rule 42, Texas Rules of Civil Procedure ; and being a class action of a hybrid type, the judgment in Atkinson binds all members of the class insofar as validity of the bonds and the right of the City to construct the runways are concerned if the class was adequately represented by those who sued on behalf of the class. McDonald, Texas Civil Practice, Vol. 1, § 3.37, pp. 283-284; Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224. The description of the plaintiffs in Brown, quoted above, shows clearly that they are members of the class represented by the plaintiffs in Atkinson, and it is not suggested that they were not adequately represented in that suit. Their right to relitigate the same issues is foreclosed by our decision in Hovey v. Shepherd, supra. This must be so. If it were not so, different groups of Dallas citizens could halt all efforts of the City to improve its airport facilities indefinitely by filing new suits. Such an absurdity cannot be tolerated.

An analysis of the petition in Brown discloses that the issues sought to be litigated are essentially the same as the issues litigated in Atkinson, and the prayer is for the same ultimate relief. Such additional collateral issues as are injected in Brown could, by diligence, have been litigated in Atkinson. They are, therefore, also foreclosed by the judgment in Atkinson.

We conclude that it is the duty of the Court of Civil Appeals for the Fifth Supreme Judicial District to enforce its judgment in Atkinson v. City of Dallas by issuing whatever writs are necessary and effective to restrain the plaintiffs and their attorney in Brown v. City of Dallas from further prosecution of that suit. That action will no more invade or trench upon the jurisdiction of the United States District Court than did the injunction issued in University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426. See also: Moton v. Hull, 77 Tex. 80, 13 S.W. 849, 8 L.R.A. 722 ; 28 Am.Jur. 737, Injunctions, § 229. The Court of Civil Appeals may not, however, order or direct dismissal of Brown v. City of Dallas. A suit cannot be dismissed from the docket of a court without an order of the court; and any writ directing dismissal of Brown v. City of Dallas would invade the jurisdiction of the United States District Court to control its own docket.

There is indication in the history of this matter that it has reached the point of vexatious and harassing litigation. If the Court of Civil Appeals concludes that other suits to relitigate the same issues may be filed by other members of the class bound by the judgment in Atkinson, that court may, upon proper allegations and prayer, enjoin the filing of such suits by other members of the class.

We are satisfied that the Court of Civil Appeals will honor this opinion and will grant all necessary and proper writs for the enforcement of its judgment in Atkinson v. City of Dallas. Writ of mandamus will issue only if it should fail or refuse to do so.

      . All Article references are to Vernon’s Annotated Texas Civil Statutes.


author: MORRISON, Judge.

text:
    Bessie COUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 35506.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    No attorney on appeal, for appellant.
    Henry Wade, Dist. Atty., Emmett Col-vin, Jr., Asst. Dist. Atty., Dallas and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the making of a false representation in order to secure money under the terms of Article 107f, Vernon’s Ann.P.C.; the punishment, 30 days in jail.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.

The judgment is reformed to find appellant guilty of the offense set forth above and, as so reformed, is affirmed.


text:
    Bessie COUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 35507.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    No attorney on appeal, for appellant.
    Henry Wade, Dist. Atty., Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the making of a false representation in order to secure money under the terms of Article 107f, Vernon’s Ann. P.C.; the punishment, 30 days in jail.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.

The judgment is reformed to find appellant guilty of the offense set forth above' and, as so reformed, is affirmed.


text:
    Phillip STANTON, Appellant, v. The STATE of Texas, Appellee.
    No. 35553.
    Court of Criminal Appeals of Texas.
    March 27, 1963.

      James H. Martin, Sidney Dawson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Bill Alexander, Don Cates, Emmett Colvin, Jr., and Steve Guittard, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery with firearms; the punishment, 20 years.

The witness Washer, an operator of a package store, testified that appellant, wearing a raincoat, rushed into his store on the night in question, asked for a bottle of wine, simultaneously removing a sawed off shotgun from under his raincoat, pointed the same at the witness and ordered him to the rear of the store. Washer stated that at this juncture another male ran in the store and approached the cash register, that appellant made him (Washer) lie down and then hit him over the head with the shotgun. Upon regaining consciousness, Washer notified the police and discovered that over two hundred dollars was missing from his cash register. Four days after the robbery, Washer positively identified appellant in a lineup at the police station consisting of four other males of the same race and size. He also identified him at the trial.

Officer Beck testified that he arrived at the scene of the crime and observed several cuts in the back of Washer’s head which were bleeding profusely.

Appellant, his mother and two sisters testified that he was at home all evening on the night in question.

The jury resolved the evidence against appellant, and we find the evidence sufficient to sustain the conviction.

Two questions are raised by brief and in argument. The first arose when the prosecutor, while cross examining appellant and testing his memory as to the alibi, asked him if he remembered where he was the night following that charged in the indictment. Appellant replied, “Well, I was — I was in an attempt robbery.” After the State had passed the witness, counsel objected, and the careful trial judge instructed the jury not to consider the answer.

It is axiomatic that an accused may not complain of the proof of certain facts which he adduced. Lee v. State, 165 Tex.Cr.R. 113, 303 S.W.2d 406.

The second arises out of the court’s failure to grant a new trial when appellant produced Johnson, another inmate of the Dallas county jail who testified that he and not appellant had committed the robbery in question. Attached to the motion for new trial was an affidavit made by Johnson in which he admitted his guilt and exonerated appellant. At the hearing on the motion, the State introduced a written statement made by the said Johnson in which he admitted that, while in the same cell with appellant prior to appellant’s trial, he told appellant that he was the one who had committed the robbery in question.

Officers Sims and Boyd testified that while interrogating Johnson following his arrest on another charge he had denied committing the robbery in question but had told them that appellant and one Traylor had committed the act.

If as Johnson’s second written statement indicates he told appellant prior to the trial that he was the culprit, then this would not be newly discovered evidence. Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612.

In view of the facts set forth above, we cannot bring ourselves to agree that the trial court abused his discretion in overruling the motion for new trial.

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


text:
    Rudy CHAPPA, Appellant, v. The STATE of Texas, Appellee.
    No. 35389.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    Rehearing Denied April 10, 1963.
    William C. McDonald, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of marijuana ; the punishment, 12 years.

Officer Jaimes of the San Angelo police testified that at approximately 8:30 P.M. on the night in question he had an occasion to see appellant and one Pedro Gonzales at the Blue Diamond Bar, that Gonzales was searched and 21 marijuana cigarettes were found on his person. For some reason not disclosed by this record, appellant was not searched; however, an informant took the officers to a house on Powell Street, which bore the number 807 in bold numerals on a pillar of the front porch, and pointed it out to them as belonging to appellant. Armed with this information, the officers secured a search warrant and returned to the house in question. Being unable to arouse anyone, they searched the premises about the house. They found three marijuana stalks in a trash can which appeared to be fresh, three growing marijuana plants in a damp flower bed free from weeds, one growing plant in another flower bed, and still another near a rose bush. All of these plants were within the enclosure of the-house in question and were shown by the testimony of an expert to be marijuana plants approximately a month old.

While the State is not to be commended upon the manner in which they proved that appellant resided in the house in question, we do find that his father-in-law, upon being recalled by the State, testified that appellant had lived in the house in question for “around two years’' and that he had frequently visited appellant at such address.

Appellant next complains of the legality of the search. When such objection was first made, the record reveals that the warrant was handed to counsel and he elicited the information from the officers that, while the number 807 on the porch .pillar only was visible from the street, a closer inspection of the front door revealed the number 708 which had been painted over. Reliance is had upon Brown v. Staté, 166 Tex.Cr.R. 322, 313 S.W.2d 297, where we observed that the record failed to reveal that the search warrant was ever produced. Such is not the case at bar because the warrant appears as a part of the statement of facts preceding the approval of counsel. As to the discrepancy in the numbers, the case of Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955, though not cited, should be discussed. In that case, the warrant called for a search of a house located at 611 Ute Street. The house searched bore no number, and the property which should have borne such address was a vacant lot. Erwin was reversed, but here we have a house with two numbers, one clearly visible from the street and which appears in the search warrant, and another less visible and which had been painted over. The officers were not required to make further inquiry when one number was clearly visible. The picture which accompanies the record graphically illustrates the soundness of this conclusion. We find no defect in the warrant.

Appellant objected to the charge because the court failed to instruct the jury that the burden of proof never shifts from the State to the defendant. In Hawkins v. State, 179 S.W. 448, 77 Tex.Cr.R. 520, this Court held that the charge such as we have in the case at bar; i. e., “In all criminal cases the burden of proof is on the state,” is sufficient except in most unusual cases. Appellant has pointed out no reason to so classify the case at bar.

We have examined the bills of exception to the prosecutor’s argument and have concluded that they do not reflect an indirect reference to appellant’s failure to testify and do not constitute reversible error.

Finding the evidence sufficient to sustain the verdict, the judgment of the trial court is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Mrs. Thais HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 35424.
    Court of Criminal Appeals of Texas.
    March 27, 1963.

      Criss Cole, Bliss Daffan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our disposition of this case makes it unnecessary for us to consider the constitutionality of the ordinances of the City of Houston under which the appellant was prosecuted.

The prosecution arose in the Corporation Court and the appeal is from a conviction upon trial de novo in the County Criminal Court at Law No. 1, with' punishment assessed at a fine of $105.00.

The complaint alleged that the appellant did unlawfully “keep, possess and maintain a dog kennel in the City limits of Houston * * * without obtaining a kennel license from the City of Houston. * * * ”

As we understand the ordinances read into the record, Section 3-1 defines a dog kennel; Section 3-50 requires the payment of a license tax for the privilege of conducting or maintaining a dog kennel; and Section 3-34 makes it unlawful for any person to keep, possess or maintain in the city limits of the city, a dog kennel within 100 feet of any actual residence or habitation for human beings (other than that of the keeper, possessor or owner of the kennel) or within 100 feet of any church, school or hospital.

The complaint did not charge that the appellant failed to pay a license tax for the privilege of maintaining a dog kennel, nor was it alleged that she unlawfully kept or maintained a dog kennel within 100 feet of a residence other than her own or within 100 feet of a church, school or hospital. The act alleged in the complaint to be unlawful was that appellant kept, possessed and maintained a dog kennel in the city “without obtaining a kennel license * *

We have found no ordinance in the record which makes it an offense to commit the act for which the appellant was fined $105.00, namely, that she did unlawfully keep, possess, and maintain a dog kennel in the city limits of Houston without obtaining a kennel license.

Since no ordinance was introduced which makes the act alleged a violation, the complaint herein does not charge the offense for which appellant stands convicted.

The judgment is reversed and the cause remanded.


author: BELCHER, Commissioner.

text:
    John Edwin MYERS, Appellant, v. The STATE of Texas, Appellee.
    No. 35442.
    Court of Criminal Appeals of Texas.
    March 27, 1963.

      Orvan B. Jones, Richard L. Stone, Jacksonville, for appellant.
    Guilford L. Jones, Big Spring, Hulon B. Brown, Jacksonville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The trial was had in Cherokee County on a change of venue from Howard County.

The evidence introduced by the state reveals that the appellant is guilty of the planned, deliberate, and brutal murder of Arthur Lee Dekraai by shooting him with a pistol. Two written statements made and signed by the appellant were introduced in evidence by the state and they show a killing by him of the deceased without any justification; and said statements were sufficiently corroborated.

Appellant did not testify but called Ben England, a psychologist, and Dr. Charles W. Folsom, physician and surgeon engaged as a psychiatrist, and both were employed at the Rusk State Hospital. By their testimony he sought to support his plea of insanity at the time of the commission of the offense and also at the time of the trial.

In rebuttal on the issues of insanity, the state called Dr. James H. Kreimeyer, physician and surgeon, employed as a psychiatrist at the Rusk State Hospital.

Only three witnesses testified on the issues of insanity and they were: England and Folsom for the appellant, and Kreimeyer for the state.

Appellant contends that the trial court erred in refusing to grant his first amended motion for new trial based upon alleged jury misconduct. The specific complaints are that the statements of two jurors before the others in the jury room discredited the the testimony of appellant’s witnesses England and Folsom, and that the statements of Westbrook, foreman of the jury, bolstered the testimony of the state’s witness Dh Kreimeyer.

In his motion appellant alleges that while the jury were considering the insanity issues, two jurors (Musick and Hudnall) stated that they knew and were well acquainted with the witness Ben England and they would give no credence to his testimony. In addition, one juror said Dr. Folsom was “not so hot”, and argued that if he was qualified and capable he would not be working for “peanuts” at the Rusk State Hospital. At this point, Juror Richards asked if this also applied to Dr. Kreimeyer, the state’s witness. Juror Westbrook, the foreman of the jury, replied that he knew Dr. Kreimeyer, that he was a good man and an excellent doctor who had left a good private practice because he was an arrested TB case.

In support of his motion the appellant attached the affidavits of Jurors Westbrook, Darnell, Rountree, and Homer Davis. These affidavits reveal:

Westbrook, the foreman of the jury, states that during the lengthy deliberations on the sanity issues, Juror Richards who was contending that the appellant was insane on both dates asked if the statements about England and Folsom applied to Dr. Kreimeyer. In reply Westbrook said that he knew Dr. Kreimeyer personally, that he was a good man and a good doctor and the only reason he was retired from private practice and working for a low salary was the fact that he was an arrested TB case.

Juror Darnell states that based on England and Folsom’s testimony he had voted to find appellant insane on both dates until the Jury Foreman Westbrook told the jury he *was personally acquainted with Dr. Krei-rneyer, who had left a good private practice and was working for a low salary at Rusk State Hospital due to the fact that he was an arrested TB case, and that he was an excellent doctor and well qualified in his field.

Juror Homer Davis did not mention Dr. Kreimeyer in his affidavit.

Juror Rountree in his affidavit recites that the Foreman of the jury, Westbrook, stated that he was personally acquainted with Dr. Kreimeyer, that he was an excellent doctor and a good man who had left a good practice solely because he was an arrested TB case.

The state controverted the motion of appellant and attached thereto affidavits of the following jurors which in substance reveal :

Jurors Howard Davis and Johnson state that they had a full discussion on the sanity issues but they do not recall hearing any juror make any statement about the character or ability of England, Folsom or Kreimeyer.

Juror Hudnall states that he worked at the Rusk State Hospital and denied making 'or hearing any statement for or against the character or ability of any of the three witnesses.

Juror Darnell states that any reference by him in the affidavit he gave the appellant that the two jurors who worked at the State Hospital based their comments upon their personal knowledge of the three witnesses was in error because he meant that it was their personal observation of them; and that he did not know what the word “credence” means.

No statement is made about Dr. Kreimeyer in the affidavits of Jurors Richards, Dear and Homer Davis.

Juror Musick denies that he knew England, Folsom or Kreimeyer or that he made any statement discrediting them. He further stated: “I do recall Mr. Westbrook stating that Dr. Kreimeyer was an arrested TB patient and that, as far as he knew he was a good doctor.”

Juror Westbrook, the foreman of the jury, in his affidavit given to the state-relates that on the issue of sanity there was some comment by the jurors as to what they thought of the testimony of England, Folsom, and Kreimeyer but that the comments did not affect his decision. In referring to the affidavit he gave the appellant he states that it does not convey the complete expression of the facts as he related them but he does not point out the errors or mistakes.

On the hearing Juror Darnell, while testifying for the appellant, identified and examined his affidavit which is attached to appellant’s motion and stated that in substance it was true and correct. He further testified:

“Q. There was no doubt in your mind as to the bolstering statement of Dr. Kreimeyer’s testimony, as to who made that, was there; the statement as to his being an arrested TB case and being a good man and excellent doctor and things of that nature ?
No, sir. >
You recall that Mr. Henry West-brook (foreman) said that? ©
"A. Yes, sir.”
“Q. Did you also consider the statement made by Mr. Westbrook relative to Dr. Kreimeyer ?
“A. Yes, sir.”

Juror Westbrook testified that he told the jury that he knew Dr. Kreimeyer but had no personal knowledge of him, and that he told the jury that from other people who knew him and worked with him, he understood that Dr. Kreimeyer was a good man, a good physician and an arrested TB case.

Jurors Musick and Hudnall, testifying for the state, stated that they worked for the Rusk State Hospital, and that during the deliberations of the jury they did not make or hear any statement by any juror based upon his personal knowledge which bolstered or discredited any of the witnesses England, Folsom or Kreimeyer.

Both parties introduced their respective affidavits into evidence. The supporting affidavits and the evidence adduced on the hearing pertaining to the statements of the ability and credibility of the witnesses England, and Folsom raised an issue of fact.

Juror Westbrook not only occupied a strategic position by being foreman of the jury, he also was the vice-president of a local bank where Dr. Kreimeyer was a customer. On the hearing, the change in Westbrook’s testimony from the affidavit he gave to appellant is found in the source of the information of the merits he accredited to Dr. Kreimeyer. In the affidavit he states that he personally knew him and his qualifications as a man and a physician and the reason he was working at the State Hospital. Whereas on the motion for a new trial he testified that he knew Dr. Kreimeyer but that he understood from other people who knew him personally and worked with him that he was a good man, a good physician and an arrested TB case.

The issues of insanity and punishment had not been settled by the jury when the statements complained of were made.

The evidence shows that the jury received new and other testimony during their deliberations which bolstered and vouched for the credibility and ability of a material witness for the state which was calculated to prejudice the rights of the appellant and calls for a reversal. Art. 7S3, Subd. 7, Vernon’s Ann.C.C.P.; 42 Tex.Jur. 409, Sec. 323; 1 Branch 2d 562, Sec. 587; Holland v. State, 107 Tex.Cr.R. 582, 298 S.W.898; Stone v. State, 116 Tex.Cr.R. 319, 31 S.W.2d 822; Scott v. State, 171 Tex.Cr.R. 568, 352 S.W.2d 726.

For the reason pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge. McDonald, judge.

text:
    Lloyd Hartley JACKSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35204.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.
    Rehearing Denied March 27, 1963.

      Brantley Pringle, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Ficlc, Jr., and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced under Art. 62 P.C. by reason of a prior conviction for burglary, 12 years.

The evidence shows that a restaurant in Ft. Worth was burglarized during the early morning hours and a safe and its contents were stolen.

A search of appellant’s garage, about midnight of the same day, resulted in the finding of the locking mechanism of the stolen safe, and small pieces of cement like filler which had identical characteristics with the filler in the hulk of the stolen safe. The remainder of the safe was found in the Clear Fork of the Trinity River.

The prior conviction alleged for enhancement of punishment was proved by records and finger print comparison.

The sole ground for reversal relates to the admissibility of the evidence obtained as a result of the search of appellant’s garage. The contention is that the search warrant, though regular upon its face, is void because the affidavit upon which such warrant was issued, though sufficient and regular on its face, was in fact false.

Appellant’s contention is based upon the following:

The affidavit for the search warrant was made by G. T. Hawkins, and reads in part:

“I, G. T. Hawkins, do solemnly swear that on or about the 27th day of June, A. D. 1961, in said county and state, one Hartley Jackson, did fraudulently take from the possession of J. H. Sing (Cath y House Cafe), and without his consent, and with the intent to deprive him of the value thereof, and to appropriate the same to his own use, certain corporeal personal property owned by J. H. Sing (Cathy House Cafe), to-wit: One safe containing $460 to $470 in bills and change and other personal papers (Safe Serial #L 1148C) of the value of $600.00) Approx.) * * * and I have cause to believe and do believe that the said property is now concealed by Hartley Jackson in a white frame house and attached garage, situated in Tarrant County, Texas, at 4925 Marks Place, Ft. Worth, Texas. * ⅜ * »

G. T. Hawkins did not testify at the trial. The evidence shows, however, that he was Lieutenant of Police in Ft. Worth and was one of the officers who made the search.

Police Officer M. Victor, who signed the return on the search warrant with G. T. Hawkins, and Victor’s partner H. O. Middleton testified.

The claimed falsity of the affidavit of G. T. Hawkins is based upon the following testimony of Officer Victor:

“Q. From the back porch * * * and were you, at that time, looking for a safe and the contents of a safe?
“A. No, Sir. * * * We wasn’t looking for the contents of the safe. * * * We knew where the safe was, and we was looking for evidence.
“Q. Now, who applied for this search warrant, Mr. Victor ?
“A. Lieut. Hawkins signed for it.
“Q. When did you apply for it?
“A. Oh, about midnight on the 27th; around about between ten-thirty and eleven-thirty, close to midnight.
"Q. Now you all knew at that time where the safe was that was taken from the Cathay House?
“A. At that time?
“Q. Yes, sir.
“A. Yes, we knew approximately where it was.
“Q. Tell the jury what time you learned where the safe was, that came from the Cathay House.
“A. Oh, I’d say we learned about ten o’clock that night.
“Q. About ten o’clock that night?
“A. From an informer.
“Q. Who all knew about it? You knew about it * * * who else?
“A. My partner, H. O. Middleton.
“Q. Did he know about it?
“A. As soon as we found out about it, we called Lieutenant Hawkins and Captain Pinkard, and they said ‘we will get a search warrant and go to the house.’
“Q. But you had been informed that the safe was out on the banks of the Clear Fork of the Trinity, off of Highway 377; is that correct?
“A. Yes, sir.”

The state points to the testimony of Officer Middleton:

“Q. If you believed on June the 28th that the safe was in the river,, why did you make an affidavit on the 29th that it was out at Lloyd Hartley Jackson’s house?
“A. To look for the rest of the parts of the safe, and the contents of the safe. * * *”

We are in accord with the state’s contention that the testimony relied upon by appellant did not invalidate the search warrant.

In Williams v. State, 139 Tex.Cr.R. 181, 139 S.W.2d 264, this Court held that a positive allegation sufficient for the issuance of a search warrant could not be impeached by the subsequent evidence of the affiant making it.

In Hernandez v. State, 158 Tex.Cr.R. 296, 255 S.W.2d 219, we said that a trial court may not go behind the affidavit and search warrant to determine the falsity of the facts stated therein in order to invalidate a search warrant valid on its face. We cited Ware v. State, 110 Tex.Cr.R. 90, 7 S.W.2d 551; Bird v. State, 110 Tex.Cr.R. 99, 7 S.W.2d 953; and Coleman County Country Club, Inc. v. State (Tex.Civ.App.) 236 S.W.2d 558, writ refused.

Hernandez v. State, supra, has been followed on this point in Griffey v. State, 168 Tex.Cr.R. 338, 327 S.W.2d 585; Johnson v. State, 163 Tex.Cr.R. 101, 289 S.W.2d 249; Sampson v. State, 160 Tex.Cr.R. 302, 268 S.W.2d 661; Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853; and Reyes v. State, 167 Tex.Cr.R. 171, 319 S.W.2d 326.

The rule stated applies where the affiant’s testimony is relied upon tó show the falsity of his affidavit for the issuance of the warrant. It must also apply where, as here, the testimony of' other witnesses is relied upon to show the falsity of such an affidavit.

If the question of the validity of the search warrant was raised by the evidence at the trial and was for the court, it was résolved against the appellant and the testimony, including that of Officer Middleton, sustains the trial court’s ruling that the evidence obtained as a result of the search was admissible.

The testimony of Officer Victor to the effect that he was not looking for the safe or its contents, but for evidence, did not affect the validity of the search warrant. Other than portions of the stolen safe, no property found and seized as a result of the search was admitted in.evidence at the trial. Cagle v. State, 147 Tex. Cr.R. 354, 180 S.W.2d 928, does not support appellant’s contention that the search was an exploratory search merely for evidence.

The fact that the seized articles were of value as evidence did not render them inadmissible. La Rue v. State, 149 Tex.Cr.R. 598, 197 S.W.2d 570.

The judgment is affirmed.

ON MOTION FOR REHEARING

McDonald, judge.

The appellant takes us to task for the statement in our original opinion that:

.“Other than portions of the stolen safe, no property found and seized as a result of the search was admitted in evidence at the trial.”

We acknowledge that three photographs and a note were seized and introduced over objection that they were “wholly irrelevant to anything,” but we fail to see how this could affect the outcome of our decision in this case.

Complaint is next made of certain testimony of Officer Victor, in connection with these exhibits. However, prior to this, the same witness was allowed to testify, without objection, to substantially the same facts. “Where the same or similar testimony is admitted without objection, the admission of improper evidence does not call for reversal.” Lowrey v. State, 163 Tex.Cr.R. 241, 290 S.W.2d 532; Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109; Davis v. State, 168 Tex.Cr.R. 588, 330 S.W.2d 443.

Appellant, for the first time, complains of the trial court’s refusal to allow the impeachment of the witness Victor. Counsel for appellant asked the witness several questions concerning his testimony at a previous trial. The witness could not remember such questions being asked, or the answers he had given. Appellant then requested that the .court reporter be allowed to take the stand to read that portion of the testimony taken at the prior trial. The State obj ected, unless the entire record was introduced, and the court appears to have sustained the objection.

There was no showing in the statement of facts of what the testimony would have been, and thus no informal bill of exception is presented for review. Skinner v. State, Tex.Cr.App., 364 S.W.2d 700.

Appellant prepared his formal bill of exception by merely quoting from the prior statement of facts certain portions of the witnesses’ testimony. The trial judge refused his bill, and the appellant was notified of this, but took no further action. Therefore, the formal bill of exception cannot be considered. Article 760d, Vernon’s Ann.C.C.P.; Beale v. State, Tex.Cr.App., 350 S.W.2d 207; Skinner v. State, supra.

Appellant’s other contentions were fully answered in the original opinion, and further comment is not necessary.

Appellant’s motion for rehearing is overruled.


author: POPE, Justice.

text:
    McMULLEN OIL AND ROYALTY COMPANY, Inc., et al., Appellants, v. Lucian MOCZYGEMBA, Appellee.
    No. 14050.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1963.
    Rehearing Denied March 20, 1963.
    Cox, Smith & Smith, San Antonio, for appellants.
    Ronald Smallwood, Karnes City, for ap-pellee.
   POPE, Justice.

This is an action to cancel a mineral deed. The jury found that the grantee fraudulently induced the grantors to execute the deed. The legal problem is one of limitations.

Frank Moczygemba and wife, Julia, executed and delivered a mineral deed to H. J. McMullen on October 10, 1929. The deed conveyed fifteen-sixteenths of the oil, gas and other minerals in 150 acres of land in Karnes County, Texas. Twenty-six years later this suit was filed; six and one-half years later it was tried. During the pend-ency of the suit, Frank and Julia Moczy-gemba assigned their rights to their son Lucian, who is plaintiff. McMullen Oil and Royalty Company, Inc., is successor to H. J. McMullen. The jury found that H. J. McMullen fraudulently represented that the instrument was an oil lease and not a mineral deed. The grantors understood and spoke Polish but little English.

The jury found that McMullen orally represented that the instrument was an oil lease, (2) that th'e representation was false, (3) that McMullen knew it was false, (4) and intended that grantors should rely upon it, (5) that grantor and his wife did rely upon it, and (6) would not have signed the deed if the representation had not been made to them. Two defensive issues were also answered for the plaintiff. The jury found that Frank Moczygemba did not discover the fraud within four years of the time he filed his suit, and also that neither Frank nor Julia Moczygemba had such information as would have caused a reasonably prudent person in the exercise of reasonable diligence, to inquire into and learn that the instrument was not an oil and gas lease. It is our opinion that all of the evidence, without dispute, shows that both Frank and Julia Moczygemba had information that would cause a reasonably prudent person to inquire about and learn the true nature of the instrument.

There were few witnesses. The grantor, Frank Moczygemba, was incompetent at the time of trial. The grantee, McMullen, was dead. The notary public was dead; the man who interpreted from English to Polish, so Frank Moczygemba and his wife could understand, was dead. Henry, the grantors’ son, was fifteen years of age at the time of the transaction in 1929, and he testified. His mother, Julia, one of the grantors, testified. Henry recalled that he and his father were pulling corn, thirty-two years earlier, when H. J. McMullen and Joe Manka, an interpreter, met them at the end of a corn row. McMullen said he was there for the purpose of leasing the land “because we want to drill an oil well here.” Moczygemba was reluctant, his son said, because “he wasn’t sure that an oil well would be drilled and he wanted to be sure that it was drilled.” Several times, such assurances were given in both English and Polish. Fifteen or twenty minutes later Moczygemba agreed to lease the land for fifty cents an acre cash. McMullen said that every sixteenth barrel of oil would go to Moczygemba, and there would be an oil well soon. Not once, but repeatedly, the son testified that McMullen said he would drill a well soon, and that “it wouldn’t take long, because * * * otherwise Daddy wouldn’t have signed it.” Julia Moczygem-ba stated that the reason she signed the instrument was “because I have been promised that they soon would be drilling for oil.” “The only thing that he promised, that they would soon drill a well.” No other promises except promises of drilling a well soon. She said that she would not have signed “unless they would promise to drill right away.” When asked what was meant by “soon,” she said, “They talked about when it meant, to them is right away, either this month or next month.” This testimony is not explained, retracted, or altered in any way. All the evidence is, that they signed because they relied upon McMullen’s representation that they would “soon” see a well drilled on their farm. This state of the record has significance, although the jury findings upon the fraud issues related to a different representation. The importance of the evidence is that it shows knowledge of facts which both grantors had at all times since the execution of the deed. The grantors knew that McMullen represented that he would drill a well on their farm in a short time. That was the thing they discussed with him. It was what they wanted and insisted upon. Julia Moczy-gemba testified that she and her husband waited for and discussed McMullen and the well for .a year, for five years, and for ten years, and finally quit talking about it.

What, then, are the things that the grantors knew? They knew that McMullen said they were signing a lease. They knew also, under all of the undisputed evidence, that McMullen said he would begin drilling a well soon. They knew that the reason they signed the instrument was to obtain an oil well, not in the remote future, but soon. They knew, as time passed for the next two and a half decades, not only that no well was drilled, but also that it was not drilled soon. These matters are important with respect to the knowledge that the Moczy-gembas had as a matter of law.

Wise v. Anderson, Tex., 359 S.W.2d 876, was decided while this case was on appeal. The lessor in that case relied upon two fraudulent statements as grounds for the cancellation of an oil lease. The lessee represented that he would commence a well in ninety days, and that he had leased enough surrounding land to obtain a drilling permit. The Court held that the grantor knew that a well was not commenced in ninety days, and that fact was enough to compel an inquiry, which, if made, would have shown that the lease had no provision which required drilling in ninety days. Quoting Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810, the Court said that it was “knowledge of facts that would cause a reasonably prudent person to make inquiry which would lead to a discovery of the fraud.” The Court of Civil Appeals, 345 S.W.2d 803, held that lessor’s knowledge of the one fraud was “as a matter of law, sufficient to put him on notice of the truth or falsity of the other fraudulent representations relied upon by appellee, and of the fraud itself.” The opinion of the Court of Civil Appeals in Steele v. Glenn, 57 S.W.2d 908, affirmed, 141 Tex. 565, 61 S.W.2d 810, also states that knowledge of one fraud puts one on inquiry about all other representations. The application, therefore, is that the Moczygembas had knowledge that McMullen had represented to them that he would begin drilling soon, but he did not. Knowing this, they did nothing, made no inquiry, and did not seek to read the instrument they signed, for twenty-six years. The grantors had the same knowledge here that the lessors had in Wise v. Anderson, supra. That knowledge put them on inquiry about other frauds, which, if pursued, would have shown that they signed a deed and not a lease. In our opinion, the action is barred by limitations as a matter of law.

Reversed and rendered that plaintiff take nothing.


author: PER CURIAM.

text:
    J. E. WALLING et al., Appellants, v. John KIMBROUGH et al., Appellees.
    No. 3777.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1963.
    Rehearing Denied March 29, 1963.

      Powell, Rauhut, McGinnis, Reavley &- Lochridge, James W. Wilson, Austin, for-appellants.
    T. R. Odell, Lubbock, for appellees.
   PER CURIAM.

Appealed from the District Court of' Haskell County.

John Kimbrough and- other tax paying citizens of the City of Haskell were granted. a permanent injunction against the Mayor,, all members of the City Council and the-City Secretary enjoining them “from paying out any more of the funds of the City-of Haskell for attorneys’ fees to prosecute-suits against the North Central Texas Municipal Water Authority or from paying-out any of said funds for expense incurred by any of the defendants for trips in opposition to said water district.”

The city officials -have appealed contending the court erred (1) in granting a permanent injunction at a hearing for a tem--porary injunction (2) in holding that the City of Haskell may not expend City funds in opposing the Millers Creek project and (3) in enjoining the City officials from paying out city funds for attorneys’ fees to prosecute suits against the North Central Texas Municipal Water Authority.

The judge’s fiat of August 7, 1962, granting a temporary restraining order against the officials recited “that this cause is here now set down upon the plaintiffs’ application for a temporary injunction on the 15th day of August, 1962; that notice issue to the defendants commanding them to appear before this court at the Court House in Haskell County, Texas at said time and place to show cause, if any they have, why a temporary injunction should not be issued in this cause.” An order was entered postponing the hearing until September 5, 1962, and recited “the plaintiffs’ application for temporary injunction is set for hearing on that date.” Another order was entered postponing the hearing for a temporary injunction until September 21, 1962. At the September 21st hearing the court entered a permanent injunction against the appellants.

The hearing on application for a temporary injunction is governed by Rule 686 of the Texas Rules of Civil Procedure as follows: “ * * * provided further that the court may have a hearing upon application for a temporary restraining order or temporary injunction at such time and upon such reasonable notice given in such manner as the court may direct.” “In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. [E] Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show, a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions 4th Edition, Vol. 1, Sec. 5, p. 8.” Transport Co. of Texas et al. v. Robertson Transports, Inc., et al., 152 Tex. 551, 261 S.W.2d 549. Also see Camp v. Shannon, 348 S.W. 2d 517, (Sup.Ct.). At a hearing on an application for a temporary injunction ex parte affidavits may be offered in evidence. The evidence need only show a “probable right” and a “probable irreparable injury.” No jury may be demanded at a hearing for a temporary injunction. A hearing for a permanent injunction is conducted in accordance with the rules governing the trial of civil suits generally and either party is entitled to a jury. Texas Practice by Lowe and Archer pages 361, 365.

After the appellees announced ready for trial, they discovered that only one of the appellants had been served with citation. The other appellants voluntarily entered their appearance conditioned on the fact that they would be permitted to adopt the pleadings of the appellant that had been served and who had filed an answer. Ap-pellees say “It will be noted that the answer of J. E. Walling, Jr., and adopted by the other defendants filed an answer to plaintiffs’ Petition and did not limit the answer to the petition for temporary injunction.” In the original answer of appellant J. E. Walling, Jr., which was expressly adopted by the other appellants, we find the following:, “For the purposes of hearing on the plaintiffs’ application for temporary injunction, and for no other purpose, this defendant alleges the following in answer to the plaintiffs’ petition.”

This case was set for a hearing on appellees’ application for a temporary injunction. There is nothing in the record to indicate that appellants agreed to a hearing on the merits. Therefore, we are compelled to sustain appellants’ point that the court erred in granting* a permanent injunction at the hearing for a temporary in- ' junction. .

The basic issue involved is whether the City of Haskell has the legal right to oppose the Millers Creek Project of the North Central Texas Municipal Water Authority, hereinafter referred to as Authority. The parties stipulated that the City of Haskell is a statutory municipality. Article 8280-193 Vernon’s Ann.Civ.St. created the Authority. It authorized the Authority to develop a water supply and to contract and sell water to Haskell and other cities in that area. The City’s position here is “that a previous City Council signed a water supply contract with the Authority, but this in no way affects the City Council’s powers with respect to the operation and maintenance of its municipal water system. And if in its opinion the Millers Creek Project is not feasible as a source of water supply for Haskell, it is within the City’s discretion to oppose its implementation.” It further contends that it has the power and a duty to supply a suitable water supply and to own and maintain a municipal water system for its inhabitants under Subdivision 30 of Article 1015 and Article 1109 of V.A.C.S. Said Subdivision 30 of Article 1015 reads in part as follows: “The governing body shall also have power: Water system. — To provide, or cause to be provided, the city with water; to make, regulate and establish public wells, pumps and cisterns, hydrants and reservoirs in the streets or elsewhere within said city or beyond the limits thereof, for the extinguishment of fires and the convenience of the inhabitants, and to prevent the unnecessary waste of water.”

Appellees’ grounds for injunctive relief were that the city officials were unlawfully spending city funds for attorneys’ fees in prosecuting suits against the Authority, and were spending money for expenses in connection with its law suits. Appellants in their answer admitted “that pursuant to their duty and responsibility to provide a suitable municipal water supply for the City of Haskell and to safeguard the revenues of the City, the defendants have opposed and will continue to oppose the North Central Texas Municipal Water Authority in its effort to construct the Millers Creek Dam and Reservoir as a source of municipal water supply for the City of Haskell. It is further admitted that the defendants have employed legal counsel to assist them in this effort and that they will continue to do so.” They also admitted “that in carrying out their duty and responsibility to provide a suitable municipal water supply for the City of Haskell the defendants have expended a small amount for expenses in opposing the North Central Texas Municipal Water Authority in its effort to construct the Millers Creek Dam and Reservoir as a source of municipal water supply for the City of Haskell.”

“This court recognizes the right of a taxpaying citizen to maintain an action in a court of equity to enjoin public officials from expending public funds under a contract that is void or illegal. Looscan v. County of Harris, 58 Tex. 511; City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367, error refused 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139; Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94. The vigilance of a citizen who takes upon himself that burden in the interest of good government is to be commended. However, the procedure is generally recognized as being drastic and, in order to be authorized to maintain such an action, a citizen must bring himself strictly within the established rules. Governments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official’s public acts under judicial review. The right, therefore, of a citizen to maintain such an action is strictly limited to cases of illegality of the proposed expenditure and does not extend to cases of unwise or indiscreet expenditures.” Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198.

Apparently the citizens of Haskell have elected members of their governing body who favor abandonment of the Millers Creek Project.

In Superior Incinerator Co. of Texas v. Tompkins, 59 S.W.2d 102, (Tex.Com.App.), the incinerator company was awarded a contract for construction of an incinerator plant by the City of Dallas. After a change of administrations, the new board of Commissioners determined that there was no need for the construction of such a plant and rescinded all of the orders upon which the contract was predicated. The City Auditor refused to countersign the contract. The company sought a writ of mandamus against the auditor to compel him to countersign the contract. The trial court denied the writ and its judgment was affirmed by the Court of Civil Appeals. In affirming the judgments of the lower courts the Commission of Appeals said: “While the city could not lawfully rescind the contract made by its award of this construction work to relator without his consent, it unquestionably had the power to abandon the proposed improvement. This abandonment, however, subjects it to liability for such damages as relator may sustain, provided he is able to establish that his contract has been made in conformity to the provisions of the city’s charter and ordinances governing the execution of such contract.” “It is a well-settled doctrine that a city has the power to abandon a proposed public improvement, even though in doing so it may breach a contract it has made therefor. In discussing this power the Supreme Court of Washington, in the case of Broad v. City of Spokane, 59 Wash. 268, 109 P. 1014, 1015, used this language: ‘That the city had power to abandon these proceedings at the time it did abandon them, we think there can be no question, even though such abandonment resulted in a breach of contract with the appellant. The power is deducible from the general powers of the city; in fact, from the power to proceed with the work. If this were not so, there could be no relief from improvident undertakings. The city could not under the appellant’s view, abandon the work of constructing this sewer on the return of the assessment roll, even though it then discovered that the sewer would not when completed perform its functions and must be immediately destroyed. We cannot think that the city is thus helpless.’ ”

In Gillam v. City of Fort Worth, Tex.Civ.App., 287 S.W.2d 494, the court said: “The Councilmen who enacted the ordinance and made the contract here involved are responsible, not to the courts, but to the great body of the people who elected them. Where they have not exceeded their lawful powers, the courts cannot interfere. The necessity, wisdom, or expediency of their acts are matters for their exclusive determination. Their acts are legislative; the judicial function is to construe and apply the law, rather than to determine the wisdom of legislation. City of San Antonio v. Fetzer, Tex.Civ.App., 241 S.W. 1034.”

The statute, in general terms, gives the city the power to provide a suitable water supply. The manner in which the city exercises this power rests largely in the discretion of its governing body. 30-A T.J. page 349, Section 350. The city has the power to exercise discretionary authority over its municipal water supply. It has the authority to oppose the implementation of the Millers Creek Project as a source of water supply for the city. In the case of Ball v. Texarkana Water Corporation, Tex.Civ.App., 127 S.W. 1068 on page 1070 the court said: “Being a creature of the state, a municipal corporation possesses only such powers as the state grants to it in express terms, or such as are necessarily implied from the express grants, or such as are inherent or indispensable to its corporate existence. Such inherent powers are generally defined to be such as the right to sue and be sued, to grant, receive, and hold property in the corporate name, to have a seal, to make by-laws and ordinances for the government of the corporation, and to have succession.” The city also has the implied power to employ attorneys and incur other reasonable and necessary expenses in the exercise of such powers.

The judgment is reversed and judgment is rendered for appellants. The injunction is dissolved.

GRISSOM, C. J., not sitting.