author: CURETON, C. J.

text:
    HARNEY v. PICKENS et al.
    Motion No. 9525.
    Supreme Court of Texas.
    April 1, 1931.
    G. C. Harney, of Borger, in pro. per.
   CURETON, C. J.

This case is before us on motion for leave to file a petition for writs of mandamus, prohibition, etc. The - petition shows that the relator is a duly licensed and practicing lawyer, at present residing in Hutchinson county; that the respondent, E. J._Pickens, is judge of the Eighty-Fourth district court; and that the respondent Dr. J. W. Head, a former client of the relator, lost certain property by fire in May, 1939. Dr. Head had a number of insurance policies on the property, but the insurance companies failed to pay the claims made under the policies. Dr. Head, and the relator could not agree on a fee for filing and prosecuting the suits on the insurance policies, but relator was employed, for a stipulated fee, to prepare the proofs of loss. These proofs of loss were prepared pursuant to this employment, and the relator as a notary took the oath of Dr. Head thereto. After suits were filed on the policies by another attorney, or other attorneys, selected by Dr. Head, the general attorneys for .the insurance companies employed the relator to represent all of the companies locally in the cases. The suits were filed on the insurance policies on or about October 16, 1930. No motion of any kind or character was filed by the attorneys for Dr. Head until on or about the 15th of December, 1930, when relator and his cocounsel, representing the insurance companies, filed a motion for continuance. At that time the attorneys for Dr. Head filed a motion “praying that the court disqualify relator from acting for and on behalf of said defendants.” No order was ever made by the court relative to disqualifying the relator, but “the said Honorable E. J. Pickens has stated that he would make such an order, and that he does feel, because of relator having prepared the proofs of loss, that relator is disqualified, and that he will make such an order.” The petition also states- that Judge Pickens has addressed a letter to relator’s co-counsel, wherein the judge states that he “holds that your relator is disqualified.” In the petition we are asked to issue a writ of mandamus “directing and ordering the said respondent E. J. Pickens to allow relator to appear as one of the attorneys for said defendants, and also writ of prohibition prohibiting the said E. J. Pickens from entering orders disqualifying relator in these • causes, and prohibiting the said J. W. Head from taking further action toward disqualifying relator to act as such attorney.”

The above substantially states all the facts before us, in so far as necessary for our present purposes.

We of course recognize the general rule as to when an attorney, is or is not disqualified to accept employment against a former client. 6 Corpus Juris, p. 619, § 105. In this case, however, it is obvious from the statement that Judge Pickens has not, up to the present time, entered any order refusing to p'ermit the relator to appear as counsel, nor refused to hear and determine the subject^ matter of the motion to disqualify under the rules of law which govern such a proceeding. In other words, the motion to disqualify and the subject-matter thereof are still within the jurisdiction of the district court of Hutchinson county, and nothing is averred which indicates that the district court has entered judgment, or that the court has declined to exercise its jurisdiction under the forms and rules of law. It is plain that up to the present time the district judge has not refused to permit the relator to appear as counsel. The rule is that, in order to show that a respondent is in default in cases where a private right is sought to be enforced, the petition must, as a rule, allege that the performance of the duty has been demanded of the respondent, and that he has refused or failed to perform it, or such conduct on the part of the respondent must be alleged as will show the futility of a demand for performance. 38 Corpus Ju-ris, p. 878, § 593. We do not think the allegations show that a demand for a hearing on the motion to disqualify would be useless. The mere fact that the district judge may be of the present opinion that on the hearing the facts and law will be such as that he will not permit relator to appear as counsel is not sufficient to show that the judge does not intend to give him a hearing on the facts and decide the issues in accordance with the law. We are of the opinion that we ought not to permit the filing of the petition for mandamus until the court has acted or has refused to. act. If upon a hearing the district court should decline to permit the relator to appear as counsel, under a state of facts which show that he is entitled to appear, then we think, under the established law, this court would be authorized to entertain a petition for mandamus. Terrell v. Greene, 88 Tex. 539, 548, 31 S. W. 631; High on Extraordinary Remedies (2d Ed.) §§ 220, 221; Merrill on Mandamus, § 195; 38 Corpus Juris, p. 648, § 171. Having the right to issue the writ of mandamus di-’ recting a district judge to permit a lawyer to appear as counsel, we of course have authority to make all other orders necessary to protect and make efficacious the exercise of that power by us. Cleveland v. Ward, 116 Tex. 1, 13, 285 S. W. 1063.

We therefore overrule the motion for leave to file the petition for mandamus, without prejudice, however, to the right of the relator to again present a petition to this court in the event he should be unlawfully deprived of his right to appear as counsel. Nothing in this opinion is to be understood as in any way expressing or indicating our views on the actual questions of law and fact which may arise on the trial of the issue of relator’s disqualification before the district court.

The motion for leave to file is accordingly overruled.


source: Caselaw Access Project

author: RYAN, C.

license: Public Domain

text:
    CITY OF HOUSTON v. SCANLAN et al.
    No. 5484.
    Supreme Court of Texas.
    April 1, 1931.

      See also 300 S'. W. 220.
    Sam Neathery, City Atty., William D. Orem, Asst. City Atty., John H. Freeman, Fulbright, Crooker & Freeman, Sewall Myer, J. H. Painter, Nat H. Davis, and Sidney Ben-bow, all of Houston, for plaintiff in error.
    Walter F. Brown, of Houston, for defendants in error.
   RYAN, C.

This suit was brought by Kate Scanlan and her three sisters against the San Jacinto Construction Company and the city of Houston for damages and to enjoin the defendants from widening and paving the street along and beside block 404 in the city of Houston, which block belongs to the plaintiffs; they claimed title to the strip of land between the curb line and the fence on the southwest side of Calhoun avenue between Main and Fannin streets, being the strip of land desired by the city to widen and pave that street.

The city, by way of cross-action, asserted title to the strip in controversy by dedication, prescrdptiotn, and limitations; there were also reciprocal claims for damages between the opposing parties and a cross-action for such a recovery by the construction company over against the city, but all these were denied, and no complaint upon that score has been presented on appeal, which was by the city alone.

The trial court submitted two special issues to a jury relating to the Seanlans’ claim for damages which were answered unfavorably to them.

The trial court refused to submit the city’s cross-action and claim to said strip of land, by dedication, prescription, or limitations, because, as stated by the court in its judgment, “the city failed to introduce and offer sufficient evidence to justify the submission of its claim to the property involved in this suit, to the jury * * * and therefore decided against the city upon such cross-action and pleas.”

Judgment was rendered in favor of the defendants upon the question of damages, but for the plaintiffs perpetually enjoining the defendants from destroying the grass, herbage, and trees on the property in question, southwest of the southwest curb line as it existed at the time the defendants began the paving of Calhoun avenue, and from placing any hard surface pavement for vehicular traffic southwest of said curb line on plaintiff’s property.

The city of Houston alone appealed, resulting in an affirmance of the trial court’s judgment, by the Court of Civil Appeals. 16 S.W.(2d) 550.

It was contended by the city that there was sufficient evidence to create an issue of fact as to the city’s defenses, which should have been submitted to the jury.

A majority of the Court of Civil Appeals held that although the city objected to the court’s charge because the issue of dedication was not submitted, it did not make written request for such submission according to the provisions of articles 2185 and 2190, Rev. Stat. 1925, and therefore the question was not properly raised.'

As concerns limitations and prescription, there was neither written request for, nor objection to the charge omitting," the submission of either, and those matters therefore passed out of the case, before the Court of Civil Appeals.

However, that court did hold “were it proper to pass on the sufficiency of the evidence to warrant the submission of an issue as to whether the city had acquired by dedication the right claimed, a majority of the court would hold that it was.”

The failure to submit any issue on dedication was an evidence that the trial court was of the opinion that the evidence did not raise the issue. The city objected to the court’s charge because it failed to submit such an issue, the objection being based on the ground that the evidence did raise that issue. The trial court overruled the objection, thus indicating the opinion that the evidence did not raise the issue.

The city’s application for writ of error here is based upon the single proposition that “it is not necessary to request in writing the submission of an issue, where the party has by his objection and written exception to the charge called the court’s attention to the failure to submit this issue to the jury.”

Before an issue should be submitted, there must be some evidence to sustain the pleading raising such issue, and if there be no evidence adduced, the issue should not be submitted.

It appears from the uncontroverted evidence 'in the case that Joseph R. Morris owned block 404 in 1870; he conveyed it to T. W. House in February, 1883 ; House conveyed to T. H. Seanlan in March, 1883.

Plaintiffs below are the heirs of T. H. Scan-lan (now deceased), and he and they have occupied said property ever since such purchase from House in 1883.

Morris placed a fence around the block and planted a row of trees along the north, or Calhoun street, side of the property. This fence remained until April, 1893, when it was taken down by the S'canlans and replaced by a stone curb of the approximate height of one and one-half feet, which was sufficient to constitute a barrier against carriages and other vehicles. In 1915 the S'canlans replaced the stone curb by a combination curb and gutter, which remained in place until forcibly removed by the city’s employees in the summer of 1927, immediately before the filing of this suit.

The stone curb and combination curb and gutter were located on the same line and in the same place as the old fence.

About 1911 the Scanlans built a concrete walkway or sidewalk south of the curb, and the strip between the walkway and the curb is the land involved in this suit. The row of trees was between the curb and walkway; these trees were all standing until about 1920, when one died and at intervals thereafter and until 1927, when this litigation began, all but two of the trees had died.

The Scanlans have, ever since their acquisition of the property, watered, trimmed, and cared for the glass, trees, and flowers. No part of the property ¡South of the curb has ever been used by the public for vehicular traffic, though the concrete walkway was used by pedestrians.

It was testified by Miss Seanlan that her father and, after his death, his children, claimed to own the property enclosed within the original fences and that the north 1'ine of their claim was located where the north fence stood and afterwards where the curb replaced the fence.

She further testified that the concrete curb was placed there voluntarily by her family, they were not so ordered by the city, the concrete walkway was not built by order of or notice from the city, nor did the city give them the grades and lines for the walkway, which was not in line with any sidewalks on the street in the block on either side, but it was further south than any of them.

She testified also that there were no walkways or sidewalks on any side of the property when it was bought by her father, and that the trees were all inside the inclosure.

It appears that south of the walkway the S'canlans have constructed a fence, and the distance between the fence and curb is about fifteen feet, and the walkway is three and one-half feet wide.

The only testimony supporting the claim of dedication was to the effect that pedestrians used the concrete walkway in passing to and fro; "that the lawn or parkway between the walkway and curb was unobstructed to the extent that nothing prevented pedestrians from using it, but there is no evidence showing that it was generally or customarily so used. As the judgment by its terms affects only the parkway and not the concrete walkway, our discussion is confined to the parkway alone.

As said in Wolf v. Brass, 72 Tex. 133, 12 S. W. 159, 160: “To constitute a dedication so as to estop the proprietor and his privies there need riot be a formal grant by deed, nor is it necessary that use by the public should be continued for so long a time as to raise the presumption of a grant. It is sufficient if there has been some act or declaration upon the part of the owner of the fee, indicating unequivocally his purpose to dedicate, and the public has used the property for the purposes to which the act or declaration of the proprietor indicates it was his intention to dedicate it.”

The vital principle, as seen from the authorities, upon which the doctrine of dedication rests, is the intention of the owner to dedicate. This intention may be implied from the owner’s acts, coupled with the intention with which he did the acts. Ramthun v. Halfman, 58 Tex. 551: Clement v. City of Paris (Tex. Civ. App.) 154 S. W. 624; City of Pearsall v. Crawford (Tex. Civ. App.) 213 S. W. 327.

But the intention to dedicate must be shown or be inferable, by sufficient evidence, from the owner’s acts. International & G. N. R. Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S. W. 714; 18 C. J. 51.

We have concluded, after a careful consideration of the evidence adduced to support the city’s claim of a dedication, that its probative force is so weak that it only raises a mere surmise or suspicion of the existence of a dedication and that there was not, in legal contemplation, “any evidence” thereof. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Galveston, H. & S. A. Ry. Co. v. Faber, 77 Tex. 153, 8 S. W. 64; Radley v. Knepfly, 104 Tex. 130, 135 S. W. 111.

As said by Judge Brown, in Texas Loan Agency v. Fleming, 92 Tex. 458, 49 S. W. 1039, 1040, 44 L. R. A. 279:

“It requires no less testimony to support a finding of fact made by a court' of civil appeals than if such finding were made by a jury in the trial of the cause. * * *
“The fact that there may be evidence which was admissible does not preclude the trial court from determining the question of its legal sufficiency. The same test is applicable to a finding of fact by the court of civil appeals when challenged in this court upon the ground that it is without evidence to support it. If the testimony be such that a district judge should instruct a verdict, then a finding by the court of civil appeals upon such evidence would be equally untenable as a verdict.”

Therefore the trial court correctly refused to submit the issue.

The judgments of the district court, and Court of Civil Appeals affirming the same, are affirmed.

CURETON, O. J.

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


author: LEDDY, C.

text:
    BARKER et al. v. TEMPLE LUMBER CO. et al.
    No. 5028.
    Supreme Court of Texas.
    April 1, 1931.
    Por former opinion, see 12 S.W.(2d) 175..
    John Hancock, of Port Worth, and James G. Barker, of Hemphill, for plaintiffs in error.
    W. P. Goodrich and Minton & Minton, all of Hemphill, R. E. Minton, of Lufkin, Davis & Davis and W. I. Davis, all of Center, S. W. Blount, of Nacogdoches, A. D. Lipscomb, of Beaumont, and Mooney, Adams & Hamilton, of Jasper, for defendants in error.
   LEDDY, C.

On December 23, 1889, C. M. Bennett, who claimed a limitation title to 1,111 acres of land in Sabine county, as surveyed and patented to John W. Gibbons in 1893 conveyed the same by general warranty deed to H. G. Damon in consideration of the payment of one-third of the purchase money in cash and the balance in notes executed by Damon, the vendor’s lien being expressly retained to secure the payment thereof.

On September 3,1890, the heirs of John W. Gibbons, the original patentee, .sued Damon in trespass to try title to recover this land. Two days thereafter, and before citation was served upon Damon, he conveyed the land by general warranty deed to his brother-in-law, Rogers, the deed being made to the latter “as trustee.” The instrument did not state the purpose of the trust, the beneficiaries thereof, nor set forth the powers of the trustee. Damon answered in the suit on September 6, 1891, and on January 16, 1892, Bennett and wife were made parties and answered at'the February term, 1893.

On February 10, 1894, judgment was entered based upon a written agreement of the parties to the suit, said agreement being signed by the attorneys for the various parties. This agreement, which was made the judgment of the court, awarded all of the land in controversy to the Gibbons heirs, except 320 acres, the title to which was vested in Bennett, and Damon was by said judgment divested of any title to the land.

The notes executed by Damon to Bennett were due December 23, 1890; and 1891, respectively, and were never paid. After the rendition of the judgment above referred to, the notes were mailed to Damon’s representative in Corsicana; for some reason they were not delivered, but returned to the sender, who produced them upon the trial of this case.

On September 11, 1894, Bennett conveyed one-third of the 320 acres awarded him in said suit to Blount and Goodrich, and one-third to Gellatly on March 29,1895. After his death his heirs conveyed the remaining one-third to Yickers on July 5,1902. These tracts through mesne conveyances vested in defendants in error.

° It is not shown -that either Damon or Rogers, or any one claiming under them, ever rendered the land for taxes or did anything indicating acts of ownership until 1911, when the heirs of Rogers gave a power of attorney, under which plaintiffs in error claim an interest in the land in controversy. The power of attorney did not specifically describe this land. It merely covered any land the grantors might then own in Sabine county. The first conveyance asserting any interest in this specific land through Damon or Rogers was a quitclaim deed executed by the Rogers heirs to J. W. Minton in 1921, more than a quarter of a century after the rendition of the judgment hereinabove referred to and the conveyance of the land by the original vendor to other parties.

Defendants in error, and their vendors, have during the period of years since the rendition of the judgment aforesaid actively asserted claim to the land by payment of taxes, filing numerous transfers, recording mortgages, and paying large sums as a consideration for the transfer of the land from one to another.

Plaintiffs in error contend that, inasmuch as Damon had not been served with citation in the suit by the Gibbons heirs at the time he conveyed the land to Rogers, the latter was not a purchaser pendente lite. That Rogers, not being a party to the suit, was not bound by the agreed judgment subsequently entered therein, and therefore the power of attorney executed by the Rogers heirs vested a present interest in the land in controversy to Arthur and Barker, under whom plaintiffs in error claim.

It is a correct proposition of law that Rogers was not affected with notice as a purchaser pendente lite; as when he bought, his grantor Damon had not been served with process in the suit filed by the Gibbons heirs. Hanrick v. Gurley, 93 Tex. 469, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381.

The conveyance from Bennett to Damon was executory. Damon could only perfect his title to the land by paying the purchase-money notes in accordance with the terms of his agreement. Upon his failure to do so, Bennett had the right to rescind the sale and convey the property to others. Likewise Rogers held- no title to this property except one conditioned upon the discharge of the obligation for the purchase-money notes. Farmers Loan Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027; Hale v. Baker, 60 Tex. 217.

The undisputed evidence shows that the purchase-money notes executed by Damon were never paid, and that Bennett exercised his right of rescission by conveying the lands to other parties. It is our conclusion that this rescission was binding both upon Damon and his vendee, Rogers, to the extent that neither vendee could successfully maintain an action of -trespass to try title against those claiming under the original vendor. Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88; Crafts v. Daugherty, 69 Tex. 477, 6 S. W. 850; Masterson v. Cohen, 46 Tex. 520; Bunn v. Laredo (Tex. Com. App.) 245 S. W. 426; Id. (Tex. Civ. App.) 208 S. W. 675.

But, it is asserted that those claiming by deeds executed by Bennett after his conveyance to Damon were required to prove notice to Rogers of Bennett’s intention to rescind such contract. Defendants ip error’s answer to this proposition is that they should not be required to assume the burden of proving notice to Rogers of Bennett’s intention to rescind his executory contract with Damon because Rogers and his heirs acquiesced in such rescission by failing to assert any character of ownership in the property for more than 17 years and until all the parties connected with the transaction, or who were likely to know anything about it, were dead.

We do not deem it necessary to decide whether Bennett’s rescission of the executory contract was binding upon Rogers, in the absence of any proof that he received notice of Bennett’s intention to rescind, to the extent of depriving him of any rights in the property, but prefer to rest our decision upon the proposition that plaintiffs in error, who were not in possession of the land, will not be permitted to recover the same in an action of trespass to try title against the original .vendor, or any one holding under him, so long as a portion of the purchase money remains unpaid. McPherson v. Johnson, 69 Tex. 484, 6 S. W. 798; Harris v. Catlin, 53 Tex. 8; Jackson v. Palmer, 52 Tex. 427.

But it is argued that Bennett’s title had failed to all of the land except the 320 acres awarded him in the suit of the Gibbons heirs, and that it would therefore be inequitable to require those holding under Rogers to pay the unpaid purchase-money notes when title to such a large portion of the land had failed. Such position might be consistently maintained if this action had been an equitable one in which plaintiffs in error set up the failure of title to ’ a portion of the land conveyed to Rogers and asked for an adjustment of the purchase money with an expressed willingness to pay such sum as might be determined by the court to be fair and just under the circumstances. Plaintiffs in error have not proceeded in this manner, but have obtained a recovery of the land in a straight action of trespass to try title, ignoring the outstanding unpaid purchase-money, notes and all equities arising in connection therewith. They have merely assumed that the value of the portion of the land to which title has failed would exceed or exactly offset the amount due the original vendor upon the unpaid purchase-money notes, together with the interest thereon over a long period of years. Those claiming title under Bennett who have paid a valuable consideration for this property are entitled to a judicial adjustment of the equities existing between Bennett and Rogers. Those claiming under the latter would only be. entitled to recover the land upon paying whatever sum might be judicially determined to be due on the unpaid purchase-money notes, taking into consideration the failure of the title to a portion of the land conveyed.

To hold otherwise would be to determine that an attempted rescission of a vendor,' where a portion of the purchase-money remains unpaid, without notice to the vendee, would give the vendee a greater right than that possessed by him if such rescission had not been attempted. If Bennett had not.rescinded the executory contract with Damon by conveying the land to others, those claiming under Rogers could not have recovered it from him in an action of trespass to try title brought by them. They might, in an equitable proceeding, have perfected their title to the land without paying any sum on the unpaid purchase-money, but this would only be true because of a judicial ascertainment that the value of the land to which title was defective equaled or exceeded the amount of principal and interest due the original vendor on the unpaid purchase money notes. They coul'd not, however, ignore this question and recover the land in an action of trespass to try title in complete disregard of the equities existing between them and the original .vendor. McPherson v. Johnson, supra.

Since plaintiffs in error were not entitled, in this character of action, to recover any of-the land in controversy, the judgment of the Court of Civil Appeals reversing the judgment of the trial court and rendering judgment in favor of defendants in error is a correct one, and should be affirmed.

CURETON, C. J.

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


author: CRITZ, C.

text:
    CHURCH v. COCKE.
    No. 5715.
    Supreme Court of Texas.
    April 1, 1931.

      George 0. Herman and Jackson & Crawford, all of Crystal City, and Grover O. Morris, of San Antonio, for plaintiff in error.
    R. B. Russell and Emmett B. Cocke, both of San Antonio, for defendant in error.
   CRITZ, C.

The facts of this case show that one J. P. Forrest is the common source of title by which plaintiff in error and defendant in error claim title to this tract of 561 acres of land in Zavalla county, Tex. Forrest conveyed the land to one J. N. Stone for a recited cash consideration of $2,805 and a vendor’s lien note for $8,415. A. K. Church claims the land as the owner by mesne conveyances from Stone. Cocke is the owner of the original vendor’s lien note. Also Cocke holds the superior title, and is in possession. Church attempts to recover the title and possession of the land from Cocke, but inakes no tender of payment of the note, and pleads limitation thereto.

The law is well settled in this state that a subvendee, not in possession of land, will not be permitted to recover the same in an action of trespass to try title against the original vendor or any one claiming under him in possession, without paying or offering to pay the unpaid purchase money. James G. Barker et al. v. Temple Lumber Co. et al., 37 S.W.(2d) 721, this day decided by the Supreme Court. This holding is in harmony with the concurring opinion of Judge Smith in the Court of Civil Appeals, 23 S.W.(2d) 743.

There is another reason why Church cannot recover in this suit. There is a missing link in his chain of title. The only evidence of any probative force in the record which tends to supply this link is the notary record of a notary public of Bexar county, Tex., by the name of John L. Strohm. This record shows that on March 20, 1912, C. T. Gregory of New York acknowledged a deed to Joe Kerby which conveyed 561 acres of land in Zavalla county, Tex., on the same surveys as the land here involved. If it be admitted that this notary record is evidence of sufficient probative force to prove that Gregory executed and acknowledged a deed to Kerby, which according to its terms, conveyed this land, still one absolute prerequisite to supplying the missing link and connecting the chain would be lacking in this, there is no evidence that the deed was ever delivered, and proof of execution does not, standing alone, establish delivery. Mayfield v. Robinson, 22 Tex. Civ. App. 385, 55 S. W. 399 (writ refused).

The judgment of the Court of Civil Appeals should be affirmed.

OURETON, C. J.

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


author: SHORT, C.

text:
    PANTAZE v. FOX HEAD SPRING BEVERAGE CO.
    No. 5713.
    Supreme Court of Texas.
    April 1, 1931.
    E. G. Senter and M. II. Baughn, both of Dallas, for plaintiff in error.
    Peyton A. Ellison, of Dallas, for defendant in'error.
   SHORT, C.

This suit involves a claim by the defendant in error against the plaintiff in error 'of $402.-65, besides interest and cost. The defendant in error is a Wisconsin private corporation, and the plaintiff in error is a resident citizen of the state of Alabama. On September 11, 1928, the defendant in error filed its petition in the county court of Dallas county, properly alleging the respective residences of the parties, and that the plaintiff in error had incurred an indebtedness, which he had failed to pay, on account of the purchase of certain goods, wares, and merchandise, and the prayer was that the defendant in error recover from the plaintiff in error a judgment for the principal debt, interest, cost of the suit, and for general relief. On September 13, 1928, the defendant in error, through its agent and attorney, filed an affidavit in due form, as prescribed by the law relating to attachment, and also on the same day filed the bond prescribed by that law. The pláintiíf in error was served with a notice, as prescribed by articles 2937, 2038, R. S. 1925. On the 2d day of October, 1928, judgment by default was rendered in favor of the defendant in error against the plaintiff in error, based on the demand stated in the petition, in which it is recited that a writ of attachment previously issued in the cause was on the 17th day of September, 1928, levied upon certain real estate in the city and county of Dallas, and after describing the real estate an attachment lien was fixed on said property as of the date of the levy and the same order foreclosed the lien and an order of sale commanded to be issued for so much of the property as may be necessary for the satisfaction of the judgment. On October 22, 1928, the plaintiff in error filed his motion for a new trial, which was amended on November 27, 1928, based chiefly upon the ground that the county court of Dallas county was without jurisdiction to render said judgment, and incidentally alleging that the claim of the defendant in error was barred by the statute of limitation of two years. The court overruled this motion, and the case was carried to the Court of Civil Appeals where the judgment was affirmed. 23 S.W.(2d) 514.

The writ of error was granted on account of alleged conflicts between this ease and that of Netzorg v. Green, 26 Tex. Civ. App. 119, 62 S. W. 789, and another. The several propositions under the first assignment of error are to the effect that the judgment of the trial court was void because the petition or the notice served upon the plaintiff in error, accompanying the certified copy of the petition, did not embrace any statement with reference to the issuance and service of the writ of attachment, but only indicated that a personal judgment was sought by one nonresident against another in the county court of Dallas county. The other assignments of error, germane to this subject, are to the same effect. The case of Netzorg v. Green, supra, and perhaps that of Connell v. Nickey (Tex. Civ. App.) 167 S. W. 313, do sustain the contention of the plaintiff in error, but the weight of the authorities in Texas is against this contention. In Milburn v. Smith, 11 Tex. Civ. App. 678, 33 S. W. 910, Judge Williams, who was afterwards a member of the Supreme Court, while a member of the Court of Civil Appeals, rendered a very elaborate opinion on this subject. In that case the facts, while somewhat different from the facts in this case, presented for decision the identical question involved in this case. In Milburn v. Smith it was held that, where an attachment was issued and levied on land after the publication of citation was complete and before the return day of the citation, the court had jurisdiction to render judgment by default. The citation in this case was in 'the form of a notice prescribed by article 2037, while the citation in the case of Milburn v. Smith was by publication by virtue of article 2039. However, we are of the opinion that the difference in the character of the citation issued and served in this ease and that in the case of 'Milburn v. Smith is not material. The plaintiff in error contends that the issuance and levy of the attachment must have been coincident with the filing of the petition in order to give the court jurisdiction. Under the authority of Milburn v. Smith, supra, and of Lane v. First National Bank of Greenville (Tex. Civ. App.) 216 S. W. 490, wherein a writ of error was denied and which cites Milburn v. Smith with approval, and of Mann v. Brown (Tex. Civ. App.) 201 S. W. 438, wherein a writ of error was also refused, we feel justified in reaching the conclusion that the cases cited by plaintiff in error as being in conflict with the decision in this case should be overruled. We think the reasoning, as well as the conclusion of Judge Williams, in Milburn v. Smith, sufficiently elucidates the question under discussion and affirm the judgment of the Court of Civil Appeals, which affirmed that of the county court.

CURETON, C. J.

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


text:
    ALDRIDGE v. CONNER, Chief Justice, et al.
    Motion No. 9552.
    Supreme Court of Texas.
    April 1, 1931.

      Collins & Houston, of Dallas, for relator.
   CURETON, C. J.

Relator has filed a motion for leave to file a petition for mandamus against the Justices of the Court of Civil Appeals at Fort Worth. The mandamus is sought for the purpose of requiring the Court of Civil Appeals to certify a conflict of decisions which it is alleged exists between an opinion of that court, the Supreme Court, and certain Courts of Civil Appeals. The petition shows that the cause pending in the Court of Civil Appeals is on appeal from a judgment of the district court of Cook county, for the sum of $602.50, and that the amount in controversy was less than $1,000.

The rule is well settled that in a case of this character we will not permit the filing of an application for a writ of mandamus. Revised Statutes, article 1821, was amended in 1923, and as amended an application for writ of error will lie to a Court of Civil Appeals in all cases involving conflicts. International & Great Northern R. R. Co. v. Pleasants, 116 Tex. 568, 296 S. W. 282; Maxwell v. Hall, 114 Tex. 319, 267 S. W. 670.

The cases cited are precisely in point, and settle the question. Mandamus does not lie where the relator has an effective and adequate remedy by writ of error. In this case, since the relator has, or had, such a remedy, it is the duty of this court, in accordance with its established rules, to decline to permit the petition for mandamus to be filed.


author: HARVEY, C.

text:
    HOLLAND v. JACKSON et al.
    No. 5523.
    Supreme Court of Texas.
    April 1, 1931.

      Clark & Clark, of Dallas, and Lightfoot, Robertson & Scurlock, of Fort Worth, for plaintiff in error.
    Capps, Cantey, Hanger & McMahon, Mc-lean, Scott & Sayers and Baskin, Eastus & Greines, all of Fort Worth, and Hood & Shadle, of Weatherford, for defendants in error.
   HARVEY, C.

John L. Jackson died in Coryell county, Tex., about April 9, 1919, leaving a great amount of real and personal property in this state. On March 4, 1926, an instrument purporting to be the will of Jackson was admitted to probate by the superior court of Los Angeles, Cal., which is a court of general probate jurisdiction; and by the same court letters of administration, with the will annexed, were issued to Mrs. S. Adelaide Jackson. These probate proceedings conformed in every respect to the requirements of the laws of California. The recitals of the order of probate disclose a specific fact finding by the court that Jackson resided in Los An-geles at the time he died, and was possessed of real and personal property situated there. Testimony to this effect was duly introduced before the court, on the hearing of said application for probate. Afterwards, on June 14, 1926, G. A. Holland made due application to the county court of Parker county, Tex., as prescribed by articles 3352 and 3365 of our statutes, for. admission to record and probate in said court of a duly authenticated copy of the will and probate thereof by the California court, and for letters of temporary administration on the estate of Jackson, with the will annexed, Mrs. S. Adelaide Jackson joined in the application, and waived such prior right to be appointed administratrix as she had.

The county court of Parker county regularly entered an order admitting to record and probate the authenticated copy of the will and order of probate entered by the California court, and appointed Holland temporary administrator of the estate of Jackson. At the ensuing term, this order of the county court of Parker county was, after due notice as prescribed by our statutes, made permanent. A short time later, a son of John L. Jackson, deceased, and others interested in the estate, filed in the county court of Parker county a motion in the nature of a contest, wherein they sought the vacation of the order admitting to record and probate the authenticated copy of the will and the proceedings of the California court. On hearing said motion to vacate, the county court of Parker county found that the instrument which had been probated by the California court was a forgery ; and that more than four years had elapsed after Jackson’s death before the application was made to the California court for the probate of same. Upon these findings, the county court of Parker county entered an order vacating the order previously entered by that court, thereby in effect barring from probate and from the records of this state the duly authenticated copy of the will and probate order entered by the California court. From this order or judgment, Holland duly perfected an appeal to the district court of Parker county. In the latter-court, the contestants, the defendants in error here, pleaded: (1) That the instrument probated by the California court was not the will of Jackson, in that said instrument was a forgery; (2) that Jackson’s domicile was in Tarrant county, Tex., when he died; (3) that more than four years after Jackson died had elapsed before the purported will was offered for probate in California, and more than four years had elapsed, since Jackson’s death, before the proceedings Of the California court were offered for record in this state. The case was tried to a jury on special issues. At the trial, the defendants in error introduced testimony to support each of the above issues tendered in their pleading. The plaintiff in error introduced no testimony, touching the genuineness of the will, other than the duly authenticated copy of will and the order of probate and proceedings of the California court. No question is raised as to the proper authentication of those proceedings. The trial court submitted to the jury a special issue, inquiring if the instrument probated in California was a forgery. The jury answered that the instrument was a forgery. No issue respecting the domicile of Jackson was submitted, and none was requested. Upon this verdict of the jury and an independent finding by the trial judge himself, to the effect that Jackson was domiciled in Texas when he died, the trial court entered judgment vacating the ancillary probate of the alleged will of Jackson, which judgment purports to effect an annulment of said instrument and the record thereof in this state. The Court of Civil Appeals, 19 S.W.(2d) 428, affirmed the judgment of the trial court.

The vital question presented for decision has reference to the power of the trial court, in view of the full faith and credit clause of the Federal Constitution (article 4, § 1) and of the act of Congress pursuant thereto (28 USCA § 687), to re-examine matters of fact whose adjudication is purported by the order of probate entered by the California court. The question goes primarily to the matter of jurisdiction in the California court' to establish the authenticity of Jackson’s purported will, as against the world. It is fairly well settled by the weight of authority in this country that jurisdiction of the original probate of a will is possessed exclusively by the courts of the state where the testator was domiciled when he died. When the will is regularly probated there, the constitutional provision under consideration requires all sister states to give full faith and credit to the order of probate as verifying the instrument. In such a case, the question of authenticity of the instrument would be res adjudieata; but the question as. to the legal effect of the instrument would not be. Inasmuch, however, as jurisdiction of original probate depends on the domicile of the testator, the question of domicile is always open for re-examination whenever full faith and credit is demanded in one state for an order of probate entered in another state. Burbank v. Ernst, 232 U. S. 162, 34 S. Ct. 299, 58 L. Ed. 551; Talbot v. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254; Scripps v. Wayne Probate Judge, 131 Mich. 265, 90 N. W. 1061, 100 Am. St. Rep. 614; Holyoke v. Holyoke, 110 Me. 469, 87 A. 40; Sullivan v. Kenney, 148 Iowa, 361, 126 N. W. 349; Matter of Horton, 217 N. Y. 363, 111 N. E. 1066, Ann. Cas. 1918a, 611; Bate v. Di Camerana, 59 Miss. 513; Stark v. Parker, 56 N. H. 481; Manuel v. Manuel, 13 Ohio St. 458; Tarbell v. Walton, 71 Vt. 406, 45 A. 748.

From what has already been said, it will be seen that the only subject of inquiry properly open to the trial court was as to the domicile of Jackson. If the latter was domiciled in California, the trial court was bound to give full faith and credit to the probate order entered in that state, as establishing the authenticity of Jackson’s will. If Jackson was domiciled in Texas, then the order of the California court was not entitled to be recorded in this state. The recital contained in the probate order entered in California, to the effect that Jackson’s domicile was there, is prima facie proof of the fact recited. Testimony to overcome this prima facie proof was introduced by the defendants in error, but the fact issue thus raised was not requested to be submitted to the jury. The issue, therefore, was waived by the defendants in error. Ormsby v. Ratcliff, 117 Tex. 242, 1 S.W.(2d) 1084. With the issue as to domicile waived, there was no basis for the trial court’s refusal to give to the California proceedings full faith and credit. Because, of this error, the judgment of the trial court must be reversed.

In this appeal, R. J. Randolph has been granted permission to file a motion, as amicus curi®, to dismiss the appeal. In the motion the following facts are alleged, and are supported by certified copies from the records of the county court of Travis county, Tex.: (1) That some two weeks prior to the filing of Holland’s original application in the county court of Parker county, an application was duly filed in the county court of Travis county by S. Adelaide Jackson, for admission to record and probate of a duly authenticated copy of the will of John E. Jackson, together with the order of the California court admitting same to probate, and for the issuance of letters of administration with the will annexed ; (2) . that subsequently the county court of Travis county duly entered an order admitting said authenticated copy, to record and probate, and directing letters of administration to be issued; (3) that said orders stand unreversed; and (4) the administration there opened is still pending. The motion for dismissal is based on the proposition that, since the jurisdiction of the county court of Travis county attached to the subject-matter of this suit, before the jurisdiction of the Parker county court was invoked, the latter court and the district court of that county never acquired jurisdiction in the premises. The motion to dismiss should be denied. The- Supreme Court is without authority to inquire into the jurisdiction of the' trial court by evidence aliunde the record of this appeal. Chrisman v. Graham, 51 Tex. 454.

On account of the error pointed out, the judgment of the trial court and that of the Court of Civil Appeals affirming same should Be reversed and the cause remanded.

CURETON, C. J.

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


author: EYAN, J.

text:
    SUSHOLTZ et al. v. CITY OF HOUSTON.
    No. 1250—5630.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      Allen B. Hannay and C. A. Teagle, both of Houston, for plaintiffs in error.
    SamNeathery, City Atty., Fulbright, Crook-er & Freeman, Sewall Myer, J. H. Painter, and Sidney Benbow, all of Houston, for defendant in error.
   EYAN, J.

This is a proceeding filed by the city of Houston, in the exercise of its right of eminent domain, bn January 23, 1925, with the county judge at law, for the condemnation for street purposes of a certain tract of land lying on Buffalo Drive within the- city, owned by Mrs. Eosa Susholtz and others.

The judge appointed three commissioners to assess the damages, and they, on February 11, 1925, filed their award, assessing such damages at the sum of $1,800, the city to pay all costs of the proceeding.

On February 18, 1925, the city filed its appeal from such award, to the county, court, deposited with the clerk of that court the sum of $3,600 as double the amount of the award, and took possession of the property. The city did not then, pay the'costs incurred before the commissioners, but did so afterwards on Oc--tober 26, 1928, before the trial in the county court; The city did not, at any time, give any bond to secure any other costs that had accrued or might accrue.

In the county court, where a trial de novo was had, the city contended that the measure of damages should be fixed as of the date it took the possession, but the court held that because the city had not given bond to secure the costs and had not then paid the costs accrued up to the time it took possession, its entry was unlawful and the measure of damages should be fixed as of the date of the trial, on November 27, 1928.

The trial court therefore submitted the cause to a jury upon the single issue: “What do you find to be the reasonable cash market value of the property in question on the 27th day of November, 1928?” The jury returned an answer of $27,150, and the county court rendered judgment against the city for that sum.

On appeal, the Court of Civil Appeals found that the city’s entry was lawful and the measure of damages should be fixed as of the date of such entry, and accordingly reversed the judgment of the 'county court and remanded the case for another trial. 22 S.W.(2d) 537.

The only question before us is whether or not the entry of the city upon the land in controversy, after depositing the requisite amount of money with the county clerk, was rendered unlawful by reason of the fact that the city did not deposit a bond to secure any costs which might be adjudged against it in the court below or upon appeal.

The power of eminent domain was conferred, by the Legislature, upon the city of Houston by the Special Acts of the Twenty-Ninth Legislature, 1905, c. 17, and the manner of the exercise of that power is therein provided in article 4, § 2, of the city’s charter, which is as follows: “To effect a condemnation, the same proceedings shall be taken and the same statutes shall govern, so far as applicable, as obtain and apply to the condemnation of lands by railway companies under the general statutes of the State of Texas.”

From this provision of the acts of the Legislature it will be seen that the general statutes regulating condemnation of property by railroads were adopted into the charter of the city of Houston, in so far as applicable. They were not adopted in toto, as is the impression left by a cursory reading of the argument filed herein by plaintiff in error.

Article 9, § 8, of the same act of the Legislature provides as follows: “It shall not be necessary .in any action, suit or proceeding in which the City of Houston is a party for any bond, undertaking or security to be demanded or executed by or on behalf of said City in any of the State courts, but all such actions, suits, appeals or proceedings shall be conducted in the same manner as if such bond, undertaking or security had been given as required by law, and said City shall be just 'as liable as if security or bond had been duly executed.”

Therefore the laws relative to the condemnation of land by railroads shall be applicable to condemnation proceedings by the city of Houston in so far as they do not conflict with other provisions of the charter of the city of Houston, as enacted by the Twenty-Ninth Legislature. Clearly this statute is in conflict with article 9, § 8, of the same legislative act, wherein it is provided that the city of Houston shall not be required to execute any bond, undertaking or security in any proceeding in any state court, but that the proceeding shall be conducted as if the bond had been given as required by law. This section not only exempts the city from giving a cost bond, but it is all inclusive b.y its terms and provides, in effect, that if any such bond is necessary under the statutes, although none is furnished by the city, such proceedings shall be conducted in the same manner as if such bond had been given as required by law.

The provision requiring railroads, as a prerequisite to 'entry on property sought to bé condemned, to pay accrued costs and give bond securing additional costs (carried into the Revised Civil Statutes of 1925, as article 3268) was approved April 15, 1899 (Acts 1899, p. 105, c. 70), while the charter of the city of Houston, was granted afterwards by special act of the Legislature approved March 18, 1905, and repealed all laws and parts of laws in conflict therewith (Special Acts 1905, c. 17, pages 131 and 171). The charter must therefore control, so long as there is no infringement of the constitutional requirement that adequate compensation must first be made or secured by a deposit of money. Const art. 1, § 17.

In Baldwin v. City of San Antonio, 59 Tex. Civ. App. 262, 125 S. W. 596, the city gave the bond and paid the costs'as required by the statute governing railroads, and is therefore different from the present ease, but Judge Neill held that the deposit of money gave full security for the taking of the property.

It cannot be said that there is any infringement on this constitutional inhibition by the two cited provisions' of the charter granted by the Act of the Twenty-Ninth Legislature. Provision was made for the securing of compensation by a deposit of money, and this constitutional requirement was satisfied by the deposit of the $3,600 as provided by the statute. There is no other constitutional restriction as to the exercise of the right of eminent domain, and with this one exception the Legislature has the power and authority to provide such method for the exercise of this power of sovereignty, as it chooses.

When the city’s charter was enacted in 1905, article 11, § 5, of the Constitution, specifically conferred upon the Legislature the power to enact just such special laws. Subsequent to the enactment of this special act, the Constitution was amended by the adoption of article 11, § 5, as it is now, into the Constitution, in lieu of the old article providing for charters for cities of a certain class by special laws, but, under the present constitutional provision, the only way in which those special charter provisions might become void is by the enactment of a general law relating to the same subject.

Prior to the revision of the statutes in 1925 there was no general law of the state with reference to condemnation' of property by cities and towns; the only general law with reference to condemnation was the statute relating to condemnation by railroads, which specifically provided that they should apply to condemnation by railroad corporations, and article 3268 was a part of this railroad condemnation law. It did not, by its very own terms, prior to the 1925 revision, purport to apply to or affect the rights of cities to condemn lands, but was, in many instances, adopted into the charters of cities and towns by reference. By the act of 1905, chapter 17, it was adopted into the charter of the city of Houston with the exceptions above noted, and similarly was adopted into other- city charters. There was not any general law regulating- the exercise of the power of eminent domain by all of the public and quasi public corporations, including cities, exercising that right. By the recodification and revision of the laws in 19-25, however, the Legislature undertook to group all of the provisions for the exercise of the power of eminent domain by all public and quasi corporations under one title known as title 52 of the 1925 Revised Statutes (articles 3264-3271), and upon the taking effect of the 1925 Revised Statutes there was for the first time a general law of the state regulating the exercise of the power of eminent domain by any or all corporations exercising this power. These statutes, by section 24 of the Final Title, were made to become effective at 12 o’clock, meridian, on the 1st day of September, 1925, and therefore until that time there was no general law of the state providing for the exercise of the power of eminent domain by cities such as Houston, and until that time the charter of the city would control.

The city made the deposit required by the Constitution, prior to the 1st day of September, 1925, and the right of the city of Houston with reference to the going into possession of property, pending litigation, must of necessity be determined, not by the general laws as they were after the enactment of the 1925 revision, but by the law or charter in effect prior thereto, and these rights must be controlled by the charter provisions since there were no other provisions by which they could be controlled. The city was not required under the charter to give any bond as required by article 3268, R. C. S. 1925, and this charter provision is not void, since it was not, at the time of the taking of possession by the city, in conflict with any general law of the State relating to the same subject, even if it might be construed to be in conflict with a general statute subsequently enacted by the Legislature in the adoption of the Revised Statutes of 1925.

If the city’s entry was not unlawful at the time it was made, a subsequent enactment of the Legislature does not invalidate such entry.

The provision as to costs and bond, therefore, involves no indispensable right of the property owner, but is for the benefit of the officers of court, who are fully protected in the quoted charter provision, that the city “shall be just as liable as if security or bond had been given.”

City charters exempting cities from giving bond in actions and suits are valid. City of San Antonio v. Smith, 27 Tex. Civ. App. 327, 65 S. W. 41; City of Hallettsville v. Long (Tex. Civ. App.) 28 S. W. 573; City of Vernon v. Montgomery (Tex. Civ. App.) 33 S. W. 606; City of Victoria v. Jessel, 7 Tex. Civ. App. 520, 27 S. W. 159.

It must be remembered that the bond in question, required of railroad companies, is not to secure the property owner in the value of the property taken, but only for costs.

We think that the Court of Civil Appeals correctly decided the question at issue, and therefore recommend that its judgment reversing that of the trial court be affirmed.

CURETON, O. J.

The judgment of the Court of Civil Appeals reversing that of the county court is affirmed, as recommended by the Commission of Appeals.


author: UEDDY, X

text:
    DUCKWORTH v. THOMPSON et ux.
    No. 1255—5640.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      T. R. Mears, of Gatesville, for plaintiff in error.
    Hugh J. Oureton and X P. Word, both of Meridian, for defendants in error.
   UEDDY, X

We adopt the following clear and succinct statement of the case made by the Court of Civil Appeals, 22 S.W.(2d) 528, 529, viz.:

“This is an appeal from the judgment of the district court in a habeas corpus proceeding, instituted by appellant, O. D. Duckworth, agiainst appellees, J. O. Thompson and wife, Bertie Thompson, to recover control and custody of L. D. Duckworth, a minor son of appellant.

“L. D. Duckworth was eight years old at the time of trial. He was delivered prematurely by an operation in a futile attempt to save his mother’s life. She died within an hour after his birth. Mrs. Thompson,'one of the appellees herein, at the request of his father, and with the approval of his relatives, took charge of him about an hour after his birth, and has had charge of him, and has tenderly cared for him ever since. She and the child’s mother were sisters. He was a delicate child from the beginning, and was carried on a pillow for five months. For about three months his condition required constant attention all through the night. Mrs. Thompson had the sole care of him during such time. Her husband and son frequently did the housework so that her entire time and energy could be devoted to his care. He is still delicate in health and of a timid disposition. He is devotedly attached to his foster parents, especially his foster mother. A physician testified that the sundering of such associations and the tender ties of affection existing between said child and Mrs. Thompson would be very detrimental to him in his then state of health.

“Appellant married a second wife about four years before the 'trial. She was a sister of appelleeThompson, and had made her home with him. Cordial relations existed between appellant and his wife and appellees until a misunderstanding arose over the fact that ap-pellee Thompson enrolled said child on the scholastic census under the surname of Thompson instead of Duckworth. Some hasty words were exchanged between appellant and Thompson about the' matter, and shortly thereafter this suit was instituted. Prior to that time appellant occasionally visited the home of appellees, and incidentally enjoyed association with his child. There is no testimony that appellant exhibited any special affection for him during said time. Except for a small doctor’s bill and one or two other small sums aggregating approximately $100, appellees have maintained said child the entire time at their own expense.
“Mrs. Thompson lavishes maternal affection upon said child. The year preceding the trial was 'his first within scholastic age. He was too delicate to attend school with anything like regularity, but she procured books and taught him at home so that his teacher testified he was up with his class. Mr. Henshaw, the child’s maternal grandfather, testified that he advised appellant at the time of the child’s birth to give it to Mrs. Thompson to rear, and told him, that if he did that, he must never take it away from' her, because it would be like her own, and that appellant said, ‘Henshaw, upon my honor I will never take it from her.’ Mrs. Thompson testified that she accepted the care of said child an hour or two after his birth; that about two days later she and appellant named him together for his mother and father, and that appellant'told her at that time to take the baby, and raise him up, and that he gave him to her ‘for always.’ Another witness testified that appellant so stated while on the way to the burial of the child’s mother. Appellant denied said statements in tobo. There are some other conflicts in the testimony, but they must all be considered as resolved against appellant by the verdict of the jury and the judgment of the court. Appellees reside near Kopperl, about 40 miles from Valley Mills, where appellant resides. It would be more convenient for the child to attend school from his father’s home than from the home of appellees, but appellees provided a way for him to ride to and fro when he was able to attend school during the preceding year, and expressed their willingness to continue to do so. Appellees admitted in open court that the general reputation of appellant and his wife in the community in which they lived for being nice, honorable, upright, respectable, and law-abiding citizens was good. The testimony showed without contradiction that ap-pellees also possessed such high reputation, and, in effect, that either family would afford a suitable home for the child. Other matters of relative advantage or disadvantage in reference to the respective homes must also be considered solved in favor of appellees by the verdict and judgment.
“The testimony disclosed that the child had learned that appellant was seeking to remove him from the only home, he had ever known and from those who had loved and cared for him all his life, and whom he had learned to love in return, and to take him to appellant’s own home, and that he became greatly alarmed at the prospect. He qualified as a witness to the satisfaction of the court, and testified in the case without challenge of his competency as a witness by appellant. He testified that appellees had always been good to him; that he loved them ‘a whole lot’; and that he wanted to continue to stay with them. He further testified that he had been told by appellees to love his father and be nice to him when he came to see him, but that' he did not want to go and live with him, but desired to remain with appellees. He further testified that at that time in the courtroom he did not want to go and sit in his father’s lap nor hug him. Appellees testified that appellant and his wife were welcome at their home, and that they could come and visit the child there whenever they chose, and that they bore no 'ill will on account of this suit.”

The father is the natural guardian of his child. The law will not permit him to enter into a binding contract,- the effect of which is to release him from the duties incidental to such relationship. Occasionally, from necessity or other reasons, a parent voluntarily surrenders the custody and possession of his child to another and permits such person to assume the attitude of a 'parent through a long period of the impressionable years of the child’s life. When this is done, a relation is established which, if permitted to continue for a sufficient length of time, is reasonably calculated to foster and develop new affections in the heart of the child toward those who assume its guardianship. By reason of such relation, the influence of the foster parent often becomes a.vital and dynamic force for properly moulding and fashioning the life and character of the child during its minority. Deprived by its natural guardian of the intimate association incident to parent and child, the influence capable of being exerted by sucparent upon the future life of the child may be materially impaired, if not altogether destroyed.

When a new and powerful influence of this nature has thus been developed in foster parents which may be extremely beneficial to the child’s future welfare, and the natural parent seeks the aid of a court of equity to restore to him the custody of his child, he is asking for the destruction of a relation created by his own voluntary act. In the very nature of things it must be realized that a compliance with the parent’s request may have, in many instances, a very injurious effect upon the future of the child. Where a court is faced with the dilemma on -the one hand of a father asserting his natural right to the custody of a child, and on the other by the foster parent contending tl}at the ties and affections created by the new relation are such it -will be extremely detrimental to the child’s future welfare for them to be disturbed, by what rule or criterion should a court solve the perplexing question thus presented?

The answer suggested by counsel for plaintiff in error is that the natural parent is entitled as a matter of law to the custody of the .child unless his positive disqualification as a suitable person for such purpose is satisfactorily established by the foster parent.

Defendant in error’s counsel would apply a different rule. They assert that the welfare of the child is the paramount and dominant issue, and that, where the foster parents have met the burden of proof in establishing by satisfactory evidence the interest of the child would be best subserved by continuing its custody with them, the court should recognize the welfare of the child as paramount and refuse to disturb the existing relation.

The Supreme Court of this state has answered this question in Legate v. Legate, 87 Tex. 248, 28 S.W. 281, 283, by announcing the rule and guide for trial courts in such cases. It is there asserted that the natural parent is entitled to the custody of a child unless it appears by satisfactory evidence its best interests demand that such parent should be deprived of that custody, and upon the person asserting such fact devolves the burden of proof.

In that case Judge Denman, speaking for the court, lays down the doctrine, which is supported by the highest considerations of humanity and public policy, that the interest of' the child is the paramount question to be determined. He makes -this admirable statement -of the criterion to be followed in such cases: “Two homes are thus offered the child, who is in no wise responsible for this unfortunate controversy, and has not sufficient discretion to select. We hold, as a matter of law, that it is entitled to the benefit of that home and environments which will probably best promote the interest of the infant.' The question as to whose custody will be most beneficial to the infant is one of fact, of which this court has no jurisdiction, but which is to be determined in the first instance by the district court, upon hearing all the evidence tending to shed any light upon these two homes, and the people inhabiting them, including their entire connection with, affection for, and present and future ability to care and provide for this little girl, in order that the court may be enabled to determine, upon the whole case, the difficult question of the fact above stated.”

The rule laid down in the above case has been followed in numerous decisions by the Courts of Civil Appeals. Fasel v. Gunning, 249 S. W. 875; Taylor v. McGee, 254 S. W. 155; Sanchez v. Garcia, 278 S. W. 868; Smith v. Long, 181 S. W. 478; Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351; Miller v. Banks, 280 S. W. 301; Zephyr v. Miller, 14 S.W.(2d) 915; Kendall v. Williams, 233 S. W. 296.

However, in some cases, Courts of Civil Appeals have applied a rule at variance with that given in the Legate Case. Sears v. Davis, 19 S.W.(2d) 159; Reeves v. Tunnell, 21 S.W.(2d) 365; Carter v. Lambert, 214 S. W. 566. These cases seem to be predicated upon, the proposition that (he effect of the decision of the Supreme Court in State v. Deaton, 93 Tex. 243, 54 S. W. 901, 903, was to modify the rule laid down in Legate v. Legate, supra.

We think the Deaton Case, when properly analyzed, is not only not susceptible of the construction that it was intended to modify the rule in Legate v. Legate, but that the effect of said opinion is to reaffirm such rule. Judge Brown, speaking for the court in the Deaton Case, used the following quotation from Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672: “What is for the best interest of the infant? is the question upon which all cases turn at last, whatever may be said in the opinion about contracts; and the answer returned is that the custody of the child is by law with the father, unless it appears by satisfactory evidence that the best interest of the child demands that he should be deprived of that custody, and upon him who so avers devolves the burden of proof.”

After quoting the above, this eminent jurist refers to the fact that the case from which it is taken was cited by the court to support the conclusion reached in Legate v. Legate. He then states, in language too clear to admit of controversy as to its meaning, that trial courts in this character of cases should be governed by the rule as thus announced. As to the rule to be applied, he says: “The 'rule which should guide the court is aptly expressed in the ease of Weir v. Marley, which we have quoted.”

After prescribing this test for the guidance of trial courts, he observes that it is supported by the ease of State v. Richardson, 40 N. H. 275, from which he 'also makes a quotation. It is from the excerpt quoted from the opinion of the New Hampshire court that some of the Courts of Civil Appeals have drawn the conclusion there was thereby indicated an intention to modify the rule announced in Legate v. Legate so as to deny the foster parent the custody of a child unless he is able to establish to the satisfaction of the court that the parent is, because of some disqualification, not a suitable person to have the custody of his child. Certainly a jurist as able as the lamented Justice Brown would not lay down in specific terms a rule for the determination of this question, and at the same time have intended that what was said in the opinion by the New Hampshire court, from which quotation was made, should have the effect of modifying the specific instruction given by him for the guidance of trial courts. The question before the court in the Deaton Case was one as to the burden of proof, and the quotation from the New Hampshire court was no doubt made by the court as sustaining its views upon that particular question, as it did, and was certainly not intended to have the effect of contradicting the direct holding- which the court in its own language had just made.

It is also insisted by plaintiff in error that the Commission of Appeals has announced the rule in this character of cases contrary to that expressed in the Legate Case. The cases of Greenlaw v. Dilworth, 299 S. W. 875, 881, Castro v. Castellanos, 294 S. W. 525, 526, and Edwards v. Edwards, 295 S. W. 581, the last two cases being by this section of the Commission, are cited as instances where the rule applied was different from that in the Legate Case.

An expression used by Judge" Nickels in the first-named case is cited to" show that the rule was intended to be modified so as to make .the natural parent’s right to the custody of his child absolute unless a positive disqualification should be established by the foster parent. The statement relied upon as modifying the rule is the following language: “But the presumptions noticed mean that in general the child’s welfare and the parent’s fitness commonly rest in the natural relation which may not be disturbed save by that rebuttal which exhibits positive disqualification of the parent.”

It will be seen that Judge Nickels does not go to the extent of saying that in all cases there must be shown a positive disqualification of the parent in order to deny his right to the custody of his child. The observation is merely made that “in general” the child’s welfare rests in the relation that may not be disturbed save by proof of the positive disqualification of the parent. This statement is not a contradiction of the rule that the final test is the welfare of the child, as it may be that generally the natural ties between a parent and child are such that the parent’s rights should prevail. Again, the expression used must be construed in the light of the facts involved in the case which was under consideration. It was one where each of the parties claiming the right to the custody of the child was asserting the positive moral disqualification of the other as a suitable person to have the custody. The language used therefore had application to that particular state of facts, and manifestly was not designed by the author of the opinion to modify the rule announced by the Supreme Court in Legate v. Legate, and reaffirmed by it in State v. Deaton, as both of these cases are cited by Judge Nickels as giving the proper criterion for the courts in determining the custody of a child.

Nor is the holding made by *this Commission in Edwards v. Edwards, 295 S. W. 581, out of line with the test declared in the Legate Case. Judge Powell in that case refers to the Deaton Case as embodying the correct standard and also expressly reaffirms the holding of this Commission in Castro v. Castellanos, made but a short time previously when it was composed of the same judges. The last-named case quotes with approval from the Legate Case and applies the exact rule -announced therein as a guide to the trial court upon a retrial of the ease. Presiding Judge Short, delivering the opinion for this Commission in said case, held that the father had the prima facie right to the custody of the child; the burden being upon the foster parents to overturn such prima facie right by testimony “showing the unfitness of the plaintiff in error, or his incapacity, or any other conditions, the legal effect of which would be to demonstrate that the best interests of the child would be served by giving them its custody.”

While the defendant in error was not entitled as a matter of right to a jury trial [Burckhalter v. Conyer (Tex. Com. App.) 9 S.W(2d) 1929; Pittman v. Byars, 51 Tex. Civ. App. 83, 112 S. W. 102], it was well within the authority of the trial court to impanel a jury and require it to make a finding which might be used by the'court in an advisory way. There was but one issue submitted to the jury, which was as follows: “Taking into consideration only the best interest of the minor child, L. D. Duckworth, answer whether said minor child should be left in the care and custody of the defendants, J. O. Thompson and wife, Bertie Thompson, or should be giveü into the custody and care of the plaintiff, O. D. Duckworth.”

The court in its judgment approved this finding and made an additional one that it was deemed for the best interests of the child it remain with the foster parents, and the Court of Civil Appeals has determined that such finding is justified by the evidence.

It is indeed most regrettable that a situation has been created which results in depriving a father of the custody of his own child. However, the unfortunate predicament in which the father now finds himself is due solely to his own voluntary act in surrendering to another the custody of his infant child for the first eight years of its life. It appears that at the time of the birth -of the child the father maintained a home and lived with his daughter, who was then about 17 years of age. At no time did he take the child into his own home, being content for it to remain in the custody of his deceased wife’s sister. The child was a very delicate one, requiring the most constant and tender care. For the first five months after its birth it was necessary for it to be handled upon a pillow. It is not disputed that the good woman who, at the request of the father, assumed the responsibility of earing for this motherless infant, spent eight years of her life in ministering unto it and in doing everything for its welfare which a mother could have done. The Court of Civil Appeals is in error in stating that the father remarried some four years after the death of the child’s mother, as this marriage occurred about seventeen months thereafter,- and continuously from that time he maintained a home which was admittedly a suitable one for the child. Notwithstanding this fact, he made no effort to assume its custody, but continued to permit it to remain with the foster mother until at the time of the trial it ¡had reached the age of 8 years. This long and intimate association between the child and foster mother, during the most plastic period of the child’s life, coupled with the many ■sacrifices necessarily made by the foster mother for its comfort and well being, has resulted in the creation of bonds of affection between them which do not now, and even if the father were given custody of the child, would in all probability never, exist between the father and child.

The trial court, in view of all the circumstances shown in evidence, has concluded that the influence of the foster mother in the remaining portion of this little boy’s minority will be more potent in fitting him for the duties and responsibilities of citizenship than would the influence of the father. This court would not be disposed, even if it had the au- - thority, to "disturb that conclusion.

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

CtTRETON, O. J.

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