author: SHORT, P. J. '

text:
    STATE ex rel. WILKE et al. v. STEIN et al.
    Motion No. 9098; No. 1155-5486.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.
    For former opinion, see 26 S.W.(2d) 182.
    Walter Petseh and Lee Wallace, both of Kerrville, and Morriss & Morriss, of San Antonio, for plaintiffs in error.
    J. B. Wieser and H. H. Sagebiel, both of Fredericksburg, for defendants in error.
   SHORT, P. J. '

To the honorable Supreme Court:

The only matter presented by the motion for rehearing, filed in this ease by the defendants in error, involves the legal sufficiency of the petition to state a cause of action, as tested by a general demurrer, as, indeed, this was the only question involved in the case upon the original hearing. The motion for the rehearing cites no additional authorities, and brings to bear no additional argument in support of the contention that the petition does not state a cause of action. We gave the matter, before the opinion in this case was written, unusual consideration, and- the views we there expressed have remained unchanged.

However, there is one matter, while not involved in this case, as gleaned from the allegations in the petition, yet, in view of some statements in the motion for rehearing, it might, upon a trial of the merits of the case, become a material question, and facts may be developed upon the trial of the case which might lead the trial court into an error, in view of what we said in the last paragraph of our opinion. This paragraph is as follows: “The statutes on this subject, as embraced in title 28, whieh is all the law applicable to this case, would not authorize the creation of a municipal corporation out of a portion of territory comprising an unincorporated town, but on the contrary the statute contemplates that wlien a municipal corporation is sought to be created, under the circumstances alleged in the petition, the entire town, that is to say substantially all the citizens residing within the limits of the inhabited portion of the settlement, or community, must be included. According to the allegations of the petition this was not done. If, these allegations, together with other material ones, be established by the trial, the plaintiff in error will be entitled to have its petition granted. The assignments of the plaintiff in error relating to the points we have discussed should have been sustained by the Court of Civil Appeals and the judgment of the trial court should have been reversed and the case remanded.” It is true that the law, as stated in this paragraph, and as applicable “to the circumstances alleged in the petition,” is correctly stated. But the circumstances upon a trial of the ease, upon its merits, may be shown to be somewhat different, if not altogether.

Statutes must be reasonably construed, taking into consideration the subject-matter of the law, and the practicable experience of the members of the Legislature enacting it. Evidently the various articles mentioned in the original opinion, embraced in title 28, Rev. St. 1925, in speaking of the inhabitants of a city, town, or village, mean those inhabitants which have a natural connection with each other, or a unity of interest in the proposed incorporation of such city, town, or village, territorially speaking. The territory sought to be incorporated for strictly town purposes must be capable of being so used, or likely to become so within a reasonable time. The law gives to the qualified voters of the inhabitants of a town or village the right to fix the boundaries of the territory sought to be embraced in the proposed incorporated town or village. What territory shall, or shall not, be included, is a question of fact to be determined by the people immediately interested. The soundness of their judgment in passing on the question must be tested as a question of fact, as in other cases. If the evidence reasonably tends to show that the method pursued by those who seek to incorporate a given territory is within the statute, then the courts cannot interfere. The soundness of this decision on the part of those interested, when questioned in a proceeding like the present one, must be determined by the jury, upon the consideration of the facts in evidence. Should the facts warrant the conclusion, on account of the topography of a portion of the territory comprising a particular settlement or community, as, for instance, the presence of a large stream of flowing water separating a portion of the community from another portion, under such circumstances as to render impracticable the embracing of the entire community within the territorial limits of an incorporated village, then our conclusion of the law would be that it would not contemplate the inclusion of those inhabitants of that portion of the settlement or community, whose situation, with reference to the other portion, is such as would deprive them of the ordinary benefits incident to an incorporated town or village, and yet would compel them to bear the burdens incident to a membership therein. Other instances might be cited, wherein the strict letter of the law, if followed, would result in the imposition of unnecessary burdens, and the infliction of great injuries. If the corporate limits of a town or village are adjusted in the reasonable exercise of the judgment of the voters, and the exclusion or inclusion of lands, belonging to those who might object thereto, was not arbitrarily done, as for instance, for the purpose of exacting revenues without a compensation, or to prevent inhabitants of a given territory from participating in the advantages of the incorporation, whose situation is such as to reasonably and conveniently entitle them to such advantage, then in such a case the courts would be without power to interfere. State ex rel. Simpson, Attorney General, v. Village of Dover et al., 113 Minn. 452, 130 N. W. 74, 539; 43 C. J. p. 80, et seq.

We have thought, in view of a trial of the case upon its merits, that we should make these additional observations with reference to the law, since we have concluded that the paragraph quoted above might be susceptible of a construction entirely too restricted. However, we are still of the opinion that, as against the general demurrer, the petition in this case states a cause of action.

We recommend that the motion for rehearing be overruled.


source: Caselaw Access Project

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

license: Public Domain

text:
    GEHRET et ux. v. HETKES.
    No. 1169-5485.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.
    O. S. York, of Galveston, for plaintiffs in error.
    Paul A. Drouilhet, of Galveston, for defendant in error.
   RYAN, J.

The city of Galveston, by ordinance, directed the paving of Thirty-First street in that city, and awarded the contract therefor to H. J. Hetkes. Eugene Gehre*- and wife at that time owned and occupied as cneir homestead lot 7 in the southeast corner of outlot 88, abutting on Thirty-First- street. The Gehrets’ failed to pay their proportion of the paving cost, amounting to $514.36, and Hetkes filed suit against them in the district court of Galveston county therefor and for foreclosure of his alleged lien.

The defendants did not appear or make answer, though duly served with citation, and on October 11, 1927, a default judgment was rendered for plaintiff for the sum sued for and for a foreclosure of his alleged lien. In due -time the sheriff of Galveston county, by virtue of an execution and order of sale under said judgment, levied on said lot 7 and advertised the same for sale on January 3, 1928.

.On December 28, 1927, Gehret and wife brought this suit in the same court against the sheriff to restrain him and his deputies from making sale of said property, alleging that, at the time the pavement was laid, as well as before and since, and when the suit in which judgment was obtained was filed, citation served, and judgment rendered, Hetkes knew that said property was their homestead, and therefore said judgment was and is void in so far as it foreclosed a lien against said property.

Prayer was that said judgment be reformed so as to constitute a personal judgment only against them for the sum sued for, and for the removal of the cloud cast upon their homestead by said judgment.

A writ of temporary injunction restraining said sheriff’s sale was also prayed for and ordered to issue by -the district judge (bond fixed at $50) to remain in full force and effect until final hearing. ■

PI. J. Hetkes made himself a party defendant, and the defendants filed exceptions to plaintiffs’ petition or petitions, which were overruled by the court, and set up the judgment complained of, in bar of plaintiffs’ right to the injunctive relief prayed for by them.

The court rendered judgment on July 31, 1928, perpetuating the temporary injunction and reforming the judgment of October 11, 1927, so as to leave it merely, a personal judgment for the amount named therein, and “eliminating and deleting the lien and foreclosure thereof” against lot 7; the cloud cast upon the title to said property by virtue of said judgment and the establishment and foreclosure of said lien -was also removed. All costs were assessed against said Gehret and wife and the sureties on their injunction bond.

The defendant Hetkes appealed from said judgment to the Court of Civil Appeals for the First Supreme Judicial District,' where said judgment was reversed and the cause remanded to the trial court. 16 S.W.(2d) 395.

No statement of facts has been filed, but the trial court made findings of fact and reached conclusions of law, succinctly stated as follows:

(1) That, at the time judgment by default was rendered against them, as well as for some ten or twelve years before, said lot 7 was and is the homestead of Eugene Gehret and his wife and was during all that -time occupied as such by them; that they filed no answer and did not plead homestead in said cause because they were advised and believed that a lien could not be foreclosed against their homestead in said action and that no defense on their part was necessary; that Hetkes, the plaintiff, knew at the time the paving was constructed, as well as at the time the suit was instituted and at the time of the entry of default judgment therein, that the property in question was the homestead of Gehret and wife and was occupied by them as such; that said Hetkes’ attorney, as well as himself (the trial judge) knew at the time the default judgment was entered that the property was such homestead, and that the paving lien asserted in plaintiff’s petition did not constitute a valid lien against said property ; that, at the time the default judgment was rendered and before it was entered, and in connection with the introduction of the necessary proof of the establishment of said judgment, the court discussed with Hetkes’ attorney the fact that said property was such homestead and that the alleged paving lien could not under the Constitution constitute a valid lien; the court informed said attorney that, while he would enter the default judgment, if Gehret and wife applied-for a new trial before the term ended, same, would be granted.

(2) At -the time of the default judgment the trial court was under the erroneous impression that it Was. incumbent upon Gehret and, wife to plead and prove the property as homestead, and, not having done so before default day, Hetkes was entitled to the default judgment; but now he is satisfied that, because both the plaintiff and the court knew that they were dealing with homestead property and that the lien asserted was invalid under the Constitution, and further because the discussion between the court and the attorney in connection with the taking of the default judgment was tantamount to the introduction ■ of evidence in the case, it is his duty to correct the illegal and unauthorized act in establishing and foreclosing said lien, and said original judgment should be reformed so as to leave it a personal judgment against Geh-ret and wife, eliminating the lien feature and removing the cloud cast upon the property in question by reason of said judgment.

Opinion.

Gehret and wife were duly cited in the suit on the paving lien. They made default. Judgment was regularly entered, and the fact that this property was Gehret’s homestead nowhere appears in any part of the judgment roll.

Neither the petition, citation, nor judgment contains any intimation that the property was Gehret’s homestead; it appears from the record itself that the court had jurisdiction of the parties to, and the subject-matter of, the suit. The judgment is therefore not void.

A voidable judgment is one rendered by a court having jurisdiction but which was irregularly and erroneously rendered. Such a judgment is valid until vacated by a direct proceeding instituted for that purpose or until reversed on appeal or writ of error. Murchison v. White, 54 Tex. 78; Wheeler v. Ahrenbeak, 54 Tex. 535; Odie v. Frost, 59 Tex. 684; Buchanan v. Bilger, 64 Tex. 589.

Whether a judgment of a court of record is void or voidable must be determined from an inspection of the record. If the record discloses that the court rendering such judgment was without jurisdiction, the same is void and open to attack in a collateral proceeding ; if it does not, the judgment is merely voidable and can be attacked only in a direct proceeding. Morris v. Halbert, 36 Tex. 19; Maury v. Turner (Tex. Com. App.) 244 S. W. 809; Ringgold v. Graham (Tex. Com. App.) 13 S.W.(2d) 355.

Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 55, 803, 53 Am. St. Rep. 770, and Barnett v. Eureka Paving Co. (Tex. Com. App.) 234 S. W. 1081, 1082, cited by plaintiffs in error, are not in conflict with the rule announced above. In both those cases want of jurisdiction appeared upon the face of the record. This is apparent in the quotation from Judge Brown’s opinion in the Bordages Case, wherein he said, “These facts, showing want of jurisdiction of the subject-matter of the suit, appeared upon the face of the record”; and from Judge Kittrell’s opinion in the Barnett Case, discussing the question that the petition showed on its face that the property in question was defendant’s homestead, wherein he said, “It is but juggling with words to say that it did not appear in the original suit that foreclosure of the lien was sought against a homestead,” and “the very terms of the decree itself show that the court was dealing with the property as homestead property.”

It is plain from those quotations that in both said cases the records affirmatively showed the lack of jurisdiction over the subject-matter, whereas here the record in the judgment attacked is silent on the subject of Gehret’s homestead claim.

We think that the original judgment is not void, but only voidable at most, and the term of the court at which it was rendered having expired, it could be set aside only by bill of review brought by Gehret and wife. Gross v. McClaran, 8 Tex. 341; McKean v. Ziller, 9 Tex. 58.

To entitle a party to relief from a judgment (not void) rendered at a term of court that had expired, it must be shown that he was prevented from urging objections to the judgment which would, or ought to, have prevented its rendition and that he was so prevented by fraud, accident, or the acts of the adverse party, without fault or negligence on his part. Rogers v. Dickson (Tex. Civ. App.) 176 S. W. 865, writ of error refused; Jordan v. Brown (Tex. Civ. App.) 94 S. W. 398; Miller v. Hall, 12 Tex. 556; Burnley v. Rice, 21 Tex. 171; Johnson v. Templeton, 60 Tex. 238.

A positive averment of a valid excuse for not obtaining relief by a motion for new trial is essential in a bill of review to set aside a judgment after the expiration of the term at which it was rendered. Caperton v. Wanslow, 18 Tex. 125; Ragsdale v. Green, 36 Tex. 193; Vardeman v. Edwards, 21 Tex. 740; Hamblin V. Knight, 81 Tex. 351, 16 S. W. 1082, 26 Am. St. Rep. 818; Republic Supply Co. v. Weaver (Tex. Civ. App.) 235 S. W. 684.

The pleadings of plaintiffs in error are too general, contain principally conclusions, and do not allege fraud, accident, or any act of the adverse party which prevented them from urging their defenses; neither is it shown, with sufficient particularity that they were without fault or negligence in the premises.

Proper exceptions were directed to such pleadings, which,' as correctly held by the Court of Civil Appeals, should have been sustained by the trial court, but, since that court overruled the same and plaintiffs in error went to trial thereon, the Court of Civil Appeals properly remanded the cause to the trial court to give plaintiffs in error an opportunity to amend their pleadings, if they so desire.

We recommend that the action of the Court of Civil Appeals in reversing the judgment of the trial court and remanding the cause be affirmed.

CURETON,' C. J.

Judgment of the Court of Civil Appeals reversing the judgment of the district court is affirmed, as recommended by the Commission of Appeals.


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

text:
    CITY OF DALLAS v. MORRIS et al.
    No. 1447-5681.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    James J. Collins, City Atty., A. A. Long, W. Hughes Knight, and H. P. Kucera, Asst. City Attys., and John B. Poindexter, Jr., all of Dallas, for appellant.
    Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, for appel-lees.
   HARVEY, P. J.

The Court of Civil Appeals for the Fifth district has submitted a certificate containing certified questions. The certificate shows • that the city of Dallas instituted this suit, on September 20, 3925, against Mrs. I. J. Morris, a married woman, to recover of her 'the amount of a paving assessment made against her in the matter of paving a street upon which abuts a city lot alleged to be the separate property of Mrs. Morris. The fact of coverture of Mrs. Morris appears from the face of the original petition. The husband of Mrs. Morris is named in the petition, but in such a connection as to render it questionable whether he is joined as a party defendant in the suit. For the purpose of a decision we shall take for granted that he was not so joined. Mrs. Morris was duly served with citation. No citation was issued for her husband. Mrs. Morris, on or about appearance day, filed answer consisting of a general demurrer and general denial. More than four years after the filing of the original petition, the city filed an amended petition by which the husband of Mrs. Mor-, ris was made a party defendant in the suit. The cause of action alleged against Mrs.' Morris in the amended petition is- the same" as that alleged in the original petition. Mrs. Morris and husband excepted to the amended petition on the ground that it Showed on its face that the cause of action asserted therein was barred by the statutes of limitation of two and four years. The exceptions were sustained by the trial court on the theory that, until Mr. Morris was joined as a party defendant, Mrs. Morris was legally incapable of becoming a party, and therefore the suit as originally instituted was a nullity so far as the claim against Mrs. Morris is concerned.

The Court of Civil Appeals submits the following certified questions:

Question 1. Is the husband, I. J. Morris, made a party defendant by the allegations in the first paragraph of the original petition filed in this cause?

Question No. 2. Does the filing of a suit against a married woman, whose disability of coverture at the time of filing the suit is disclosed by the petition, toll the. running of the statute of limitation, fixing the time within which such suit must be brought, where the husband is not joined as a party defendant?

We shall take up for determination the second certified question.

The claim for the paving assessment, asserted by the city against Mrs. Morris in the original petition and in the amended petition, is shown, by the avermeijis of those respective instruments'- ef■ ‘pleading to be a separate demand against Mrs. Morris, and for the payment of which she is liable. Spears v. San Antonio, 110 Tex. 618, 223 S. W. 166. This claim was not barred by limitation (Rev. St. 1925, art. 5529) when the original petition was filed.

Article 1985 of the Statutes provides: “The husband shall be joined in suits for separate debts and demands against the wife, but no personal, judgment shall be rendered against the husband.”

The very terms of this statute imply the wife’s legal capacity to be sued. The suit contemplated by the statute is essentially against the wife, for it is expressly provided that no personal judgment shall be rendered against the husband. The statute clearly implies the wife’s capacity to litigate in her own right. When sued, she is reached directly ; not indirectly through the person of her husband. The husband is made a necessary party to the suit against her; but it is quite evident that the Legislature did not mean, by so providing, to qualify the wife’s capacity to litigate, which the statute implies, or to require that a suit brought against her alone be treated as a nullity. As said by our Supreme Court in Cayce v. Powell, 20 Tex. 767, 73 Am. Dec. 211: “The authority conferred upon a married woman, to litigate in her own right, implies the capacity on her part, to conduct the litigation as shall be most conducive to her own advantage. The law has conferred on her the right to litigate; and the right implies the capability.”

The wife’s legal capacity to be sued is the same whether her husband be joined in the suit or not. Sp, too, is her liability, on the claim asserted against her. The statutory requirement that her husband be joined with her in the suit goes merely to the matter of procedure for the establishment and enforcement of her liability. A suit on a separate demand against her, without the husband being joined as a party defendant, is so defective that a judgment rendered therein against the wife would be voidable, perhaps, but the suit is not void. The bringing in of the husband, prior to judgment, cures the defect, and this cure relates back, in its operation, to the commencement of the suit.

The fact that the plaintiff’s petition in a pending suit against a married woman discloses her coverture does not bear on the question under consideration. If the suit were void on account of her legal incapacity to be sued, it would be so regardless of whether the fact of such incapacity appeared on the face of the petition or not.

The question decided in Taylor v. Husteau (Tex. Com. App.) 257 S. W: 232, is a different question from that involved here. Language used in that case, which does not harmonize with the views hereinabove expressed, is not regarded as authoritative.

We recommend that certified question No.. 2 be answered in the affirmative. .This renders an answer to question No. 1 immaterial.

OTJRETON, C. J.

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


author: SHORT, P. J. OURETON, C. J. SHORT, P. J. CURETON, C.- J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. BROCK.
    Motion Nos. 9507, 9508, 9510; No. 1244-5746.
    Commission of Appeals of Texas, Section B.
    Feb. 18, 1931.
    On Rehearing, March 18, 1931.
    Harry P. Lawther, William M. Cramer, and James P. Swift, all of Dallas, for plaintiff in error.
    Brazil & Musselwhite, of Lufkin, for defendant in error.
   SHORT, P. J.

The defendant in ferror, a minor 15 years of age at the time 'of the transaction involved, through his father as next friend, instituted a suit against the plaintiff in error, under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8308 et seq.) after the Industrial Accident Board,.while granting his claim for compensation, had denied payment in a lump sum, and recovered a judgment in the district court of Cherokee county for $10.38 per week for 401 weeks, to be paid in a lump sum amounting to $4,162.38, “less a discount at the rate of 6% per annum compounded interest on the unmatured weekly payments at the time of the payment of the judgment,” and also less $21 already paid -by plaintiff in error. Prom this judgment the plaintiff in error appealed to the Court of Civil Appeals at Tex-arkana where the judgment of the trial court was affirmed. 26 S.W. (2d) 322.

In the application for the writ of error the plaintiff in error, in the statement of the nature and result of the suit, says that the only contested issues in the district court were: (1) The extent of the injury and the resulting length of disability therefrom; (2) the question of a lump sum settlement; and (3) the wage rate which, however, was eliminated by agreement of the parties, thus leaving only two contested issues.

The jury found, in answer to the special issues submitted, that the defendant in error sustained the injuries on the date alleged, which injuries resulted in his total incapacity to perform labor; that such total incapacity was permanent; that manifest hardship and injustice would result to the defendant in error' if his compensation is not paid to him in a lump sum. These facts so found by the jury, having been approved by the Court of Civil Appeals and not having been challenged as having no sufficient support in the testimony, it must be presumed that, in so far as the facts are concerned, above mentioned, as applicable to the law of the case, the judgment of the Court of Civil Appeals should bo affirmed.

However, it further appears from the record, without dispute, that there was neither pleading nor proof showing the proper rate of discount for determining the present value of lumt> sum payment, and, such being the state of the record, the plaintiff in error insists that so much of the judgment as awards to the defendant in error a lump sum is clearly erroneous, being without support in the record, citing in support of its contention Maryland Casualty Co. v. Marshall (Tex. Civ. App.) 14 S.W. (2d) 337, Petroleum Casualty Co. v. Bristow (Tex. Civ. App.) 21 S.W.(2d) 9, and Texas Employers’ Insurance Association v. Stephens (Tex. Civ. App.) 22 S.W. (2d) 144. The Court of Civil Appeals, in denying the correctness of this contention, cites in support of its holding United States Fidelity & Guaranty Co. v. Nettles, 21 S.W.(2d) 31. In the case last cited a writ of error was granted, and, in an opinion written by Judge Leddy of this Section of the Commission, 35 S.W. (2d) 1045, we held in harmony with the opinion of Section A of the Commission of Appeals in the case of Herzing v. Texas Employers’ Insurance Association, 17 S.W. (2d) 1046, to the effect that, in arriving at the present value of the weekly payments it is necessary that there be pleading and proof of the rate of discount for future maturing installments. In the absence of pleading and proof on this subject, the trial court was without authority to determine the present value of the future installments, and it necessarily results that so much of the judgment rendered ' in this case as awards the payment of a lump sum is erroneous.

The facts found by the Court of Civil Appeals to have been established by the record in this case show beyond dispute that the injured party, the defendant in error in this case, received injuries which totally incapacitated him from performing) as he had been accustomed, the task of a workman and also that the injuries suffered were of a permanent nature. The trial judge, at the request of the plaintiff in error, gave a special instruction defining “partial incapacity,” as used in the court’s main charge, to mean the ability to perform some of the duties of an ordinary workman; in. other words, any disability less than 100 per cent.. This instruction necessarily had the effect to modify and explain the definition given in the court’s main charge of total incapacity, and the two instructions furnished the jury, with the correct rule by which to determine whether the defendant in error had suffered total incapacity, within the meaning of that phrase, as tised in the statute.

The court, in its charge to the jury, defined “total disability” as follows: “In answering the foregoing issue you are charged that the term ‘total incapacity,’ as used in the Workmen’s Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual task of a workman in such a way as to enable him to procure and retain employment is regarded as total incapacity.” To this definition of this phrase the plaintiff in error interposed an objection, and specially requested the court to define the phrase as meaning that the plaintiff is unable to perform any of the duties of an average workman, but to be totally incapacitated he must be under a 100 per cent, disability. This requested instruction was denied, and the action of the trial court, having been sustained by the Court of Civil Appeals, the matter has been presented by an assignment to the Supreme Court. We think the Court of Civil Appeals correctly disposed of the matter, and that the cases cited in the opinion by the Court of Civil Appeals sustain that disposition. ¡Moreover it is apparent that the definition of the phrase “total incapacity,” as expressed in the special instruction requested, is clearly incorrect. The plaintiff in error cites us to no authority in support of its contention that the requested instruction is a correct definition of the term “total incapacity,” and we know of no such authority. The plaintiff in error does cite the case of Employers’ Casualty Co. v. Scheffler (Tex. Civ. App.) 20 S.W.(2d) 833, but an examination of that ease shows that the objection interposed to the definition of the phrase “total incapacity” grew out of the fact that the court refused to give a special instruction defining the word “permanent” which had been used in defining “total incapacity,” while in the case at bar it will be noted that no such objection was made as was made in the case cited, and no such instruction in this case was asked as was asked in the case cited. Commonwealth Bonding & Casualty Co. v. Bryant (Tex. Sup.) 240 S.W. 893; Great Southern Rife Insurance Co. v. Johnson (Tex. Com. App.) 25 S.W.(2d) 1093.

The authorities are quite uniform that, in construing the Workmen’s Compensation Law, the purpose of the Legislature in enacting it must be given effect. That purpose, among others, is to partially compensate the injured employee for the loss of his previous ability to secure and retain employment in his capacity as a laborer. . The law divides the conditions which must be shown to have been the result of the injuries suffered by an employee, during the course of employment, into three classes; one being permanent total incapacity, another a permanent partial incapacity, and the other for injuries resulting in hernia.

The defendant in error introduced testimony tending to show that he had suffered a permanent total disability. The plaintiff in error introduced testimony tending to show that the defendant in error had only suffered a permanent partial disability. With the record in this condition, it was incumbent upon the trial court to define the phrase “total disability” and also the phrase “partial disability.” The court did this, defining the phrase “partial disability” in the language requested by the plaintiff in error, and, if this was an incorrect definition, the error resulting therefrom would be in the nature of an invited one, of which the plaintiff in error would not be in a position to complain. The' ultimate fact incumbent upon the defendant in error to establish was that by reason of the injuries suffered he was deprived of the ability theretofore possessed by him, to enable him to procure and retain employment and that this resultant injury, with its consequences, was of a permanent character. According to the verdict of the jury the defendant in error established both of these necessary elements. But the plaintiff in error pleaded and introduced testimony tending to show that the entire contention of the defendant in error was not shown, but that, while the injuries suffered were of a permanent nature, yet these injuries did not totally incapacitate the defendant in error to enable him to procure and retain employment as he had aforetime been enabled to do. In support of its contention the plaintiff in error had the court to instruct the jury, in language selected by it, the legal meaning of the phrase “partial incapacity,” and thus the jury were given a guide by which to determine this issue thus presented-. In other words, there were only two issues presented by the testimony, and the court correctly submitted the law of the case applicable to those two issues. under the facts of this case.

The instruction of which complaint is. made, defining the term “total disability,” must be construed by giving effect to all the language used in phrasing the definition of the term. The instruction defining the term “total disability” qualifies the otherwise unqualified statement that an injured employee might have the ability to perform some kind of labor and yet be totally disabled by other language, to the effect that the disability must be such as would render the workman incapable of procuring and retaining employment. So the proposition presented by the plaintiff in error that it is erroneous to instruct the jury to the effect that, if a workman is not able to do the ordinary task of a workman, he would be suffering a total disability, cannot be sustained, in view of the instruction actually given, nor can the other proposition he sustained, to the effect that the instruction defining the phrase “total disability” under the facts of this case unduly emphasized the issue presented by the testimony, where the defendant in error had suffered a permanent total disability. The law of the case having been correctly delivered to the .jury and the Court of Civil Appeals having found the evidence to be sufficient to sustain the verdict of the jury, that the defendant in error had suffered a permanent total disability, we are of the opinion that on this phase of the case, the plaintiff in error has suffered no injury.

Another assignment is based upon the action of the court in permitting the defendant in error to testify that in his opinion he would not be able to do physical or manual labor in the future, over the objection of plaintiff in error, based upon the ground that the defendant in error was not an expert, and that his opinion of what he would be able to do in the future was not evidence of any fact which the jury could consider. We do not think it is necessary to discuss at length the law applicable to this assignment. Clearly the testimony was inadmissible and should not have been permitted to go to the jury. Volume 1, Elliott on Evidence, p. 802, § 679. However, we are of the opinion that the admission of this evidence was not of the nature and character, when all of the other testimony in the case was considered, as was likely to have had any harmful effect upon the rights of the plaintiff in error, and, such being our conclusion, while we think there was error in admitting the testimony, such error is not a reversible one. Rules of the Supreme Court 62a.

The witness Lee MeKnight, having testified favorably to the plaintiff in error, was asked on cross-examination by the defendant in error if lie was not working at that time for the employer who carried insurance with the plaintiff in error, and having answered in the affirmative, the plaintiff in error then asked the witness whether the fact that he was working for this employer would affect his testimony one way or the other. To this question the defendant in error objected, and the trial court sustained the objection.

The bill of exception taken to the action of the court, sustaining the objection to this question, is fatally defective in that the bill does not show what the answer of the" witness would have been to this question, which fatal defect deprives us of the authority to supply it. Without a full and complete bill of exception, no question of law is presented for decision by the Supreme Court. The mere asking of a question, however improper, as a general proposition, is not reversible error. The real injury, if any, suffered by the party asking the question, is embodied in the answer thereto. An unanswered question furnishes no testimony. It sometimes does occur, though- not in this instance, that the mere asking of a question, by an opposite party, injects into the record improper and irrelevant matter of an injurious nature, which might result in so much harm as would require a reversal of the case. No such situation appears in this ease. We therefore overrule this assignment.

The defendant in error requested the Court of Civil Appeals to reform the judgment rendered so that his compensation would be paid weekly, in accordance with the findings of fact on that subject, in the event that the court should deny him payment in a lump sum. The defendant has made the same request of the Supreme Court. The judgment of the trial court recites that the parties had agreed the defendant in error was an employee of J. W. Sessions, who carried insurance with the plaintiff in error to protect his employees at the time the defendant in error was injured; that his compensation rate is $10.38 per week, from which facts the trial court rendered judgment in favor of the defendant in error against the plaintiff in error at that rate for 401 weeks, less $21 already paid, aggregating $4,162.38. The court then proceeded to discount this amount at the rate of 6 per cent, per annum compound interest on the unmatured weekly payments at the time of the payment of the judgment. As we have seen, the court was without authority to discount the aggregate amount of the weekly payments, and, in view of the request of the defendant in error, above stated, we are of the opinion that the judgments of the Court of Civil Appeals and of the trial court should be reversed, and that judgment should be rendered .against the plaintiff in error and in favor of the defendant in error and his attorneys, two-thirds in favor of the defendant in error and one-third in favor of the attorneys, Brazil and Musselwhite, payable in weekly installments of $10.38 per week, beginning the 27th day of August, 1929, with 6 per cent, interest on each weekly installment from the time each became due after the 27th day of August, 1929.

We therefore recommend that the judgments of the Court of Civil Appeals and of the trial court be reversed, and that judgment be rendered by the Supreme Court in favor of Jasper Brock, a minor, against the Texas Employers’ Insurance Association for the sum of $836.83, which is the amount, with accrued interest, due at the rate of $10.38 weekly up to and time of the rendition of this judgment on the 18th day of February, 1931, one-third of said amount to be paid to his attorneys, Brazil and Musselwhite, and that judgment be further rendered in favor of said minor, Jasper Brock, for the sum of $10.38, to be paid weekly beginning on the 18th day of February, 1931, until the amount so paid weekly shall aggregate the sum of $3,373.50, one-third, however, of said weekly payments to be paid to said attorneys, Brazil and Mus-selwhite. We further recommend that judgment be rendered against J. R. Brock, next friend to the minor Jasper Brock, in favor of the Texas Employers’ Insurance Association for all costs incurred in this behalf.

OURETON, C. J.

Judgments of the District Court and Court of Civil Appeals are both here vacated, and judgment here rendered for the defendant in error, and costs taxed, all as recommended by the Commission of Appeals.

On Rehearing:

SHORT, P. J.

The plaintiff in error has filed its motion for rehearing in this case, claiming that the error of the trial court, in admitting nonex-pert testimony, with reference to a matter which could only be established by expert testimony, is a reversible one. In our original opinion we held that it was not. We are of the same opinion still, and think this motion should be overruled.

The defendant in error has filed a motion to correct the judgment entered, conclusively showing by the record, that the injuries, for which compensation has been allowed, occurred on April 10, 1929, and that the minor became entitled to receive compensation weekly at the rate of $10.38, and therefore the accumulated installments, for which he is entitled, to recover an aggregate sum, are greater than the amount which he was allowed to recover in our original opinion. We think that the judgment should be corrected in accordance with said motion, so as' to eliminate tlie errors indicated in tlie last two paragraphs in the original opinion, which should be vacated, and in place thereof the following substituted:

The defendant in error requested the Court of Civil Appeals to reform the judgment rendered so that his compensation would be paid weekly, in accordance with the findings of fact on that subject, in the event that the court should deny him payment in a lump sum. He has made the same request of the Supreme Court. The judgment of the trial court recites that the parties had agreed the defendant in 'error was an employee of J. W. Sessions who carried insurance with the plaintiff in error to protect his employees at the time the defendant in error was injured; that his compensation rate is $10.38 per week, from which facts the trial court rendered judgment in favor of the defendant in error against the plaintiff in error at that rate for 401 weeks, less $21 already paid, aggregating $4,162.38. The court then proceeded to discount this amount at the rate of 6 per cent, per annum, compound interest, on the unmatured weekly payments at the time of the payment of the judgment. As we have seen, the court was without authority to discount the aggregate amount of the weekly payments, and, in view of the request of the defendant in error, above' stated, we are of the opinion that the judgments of the Oourt of Civil Appeals and of the trial court should be reversed, and that judgment should be rendered against the plaintiff in error and its sureties on its supersedeas bond and in favor of the defendant in error and his attorneys, two-thirds in favor of the defendant in error and one-third in favor of his attorneys, Brazil & Musselwhite, payable in weekly installments of $10.38 per week, beginning on the 17th day of April, 1929, less $21 heretofore paid, with 6 per cent, interest on each weekly installment from the time each became due after the 17th day of April, 1929.

We therefore recommend that the judgments of the Court of Civil Appeals and of the trial court be reversed, and that judgment be rendered by the Supreme Court in favor of Jasper Brock, a minor, against the Texas Employers’ Insurance Association, and its sureties on the supersedeas bond, to wit, L. W. Groves and Employers’ Casualty Company, for the sum of $1,067.40, which is the amount, with accrued interest, due at the rate of $10.38 weekly up to the time of the rendition of this judgment on the 18th day of March, 1931, one-lhird of said amount to be paid to his attorneys, Brazil & Musselwhite, and that judgment be further rendered in favor of said minor, Jasper Brock, for the sum of $10.38, to be paid weekly beginning on the 25th day of March, 1931, until the amount so paid weekly shall aggregate the sum of $3,145.14, one-third, however, of said weekly payments to be paid to said attorneys, Brazil & Musselwhite. We further recommend that judgment be rendered against J. R. Brock, next friend to the minor, Jasper-Brock, in favor of the Texas Employers’ Insurance Association for all costs incurred in this behalf.

The defendant in error has also filed a motion to retax the costs which were adjudged against J. R. Brock, next friend to the minor, Jasper Brock, in our original opinion. With reference to the matters stated in this motion, it is only necessary to say that the record shows that the Industrial Accident Board awarded compensation to the minor, to be paid in weekly installments, but denied payment in a lump sum, to abide by which award J. R. Brock, in the capacity of next friend for the minor, indicated his unwillingness, by instituting a suit against the plaintiff in error in the district court of Cherokee county, with- the result indicated in the original opinion. This judgment was affirmed by the Court of Civil Appeals. Erom this judgment the plaintiff in error prosecuted a writ of error to the Supreme Court, where, as has been shown, it was decided that the defendant in error was not entitled to payment in a lump sum. According to the judgment rendered by the Supreme Court, as evidenced by the original opinion, the successful party in the litigation is the plaintiff in error, and, since the statute provides, “the successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided,” (Vernon’s Ann. Civ. St. art. 2056) it follows that under the law the motion to retax the cost must be denied.

We therefore recommend that the motion for rehearing, filed by the plaintiff in error, be overruled, that the motion to retax cost by the defendant in error be overruled, and that the motion filed by the defendant in error to correct the judgment in the matter heretofore mentioned be granted, and that the last two paragraphs in the original opinion be vacated, and in place thereof there be substituted the recitations and orders heretofore stated, and that, as corrected, the judgment be made final as of this date, to wit, March 18, 1931.

CURETON, C.- J.

Judgment heretofore entered by Supreme Court vacated, and judgments of the district court and Court of Civil Appeals reversed, and judgment here entered, on motion to correct judgment, as recommended by the Commission of Appeals.


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

text:
    In re CHANEY’S ESTATE.
    No. 1425-5624.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    Clark & Clark and Francis M. Chaney, all of Dallas, for appellants.
    Baskin, Eustus & Greines, E. S. Allen, and Felix M. Bransford, all of Fort Worth, for appellee.
   HARVEY, P. J.

The Court of Civil Appeals for the Second District has submitted the following certificate:

“This Suit was instituted in a District Court of Tarrant County by the executor of the last will and testament of W. M. Chaney, deceased, to obtain a judicial construction of the following will;
“ T, W. M. Chaney of Keller, Texas, being of sound mind do make this my last will, and, testament.
“ T hereby appoint my nephew Emory C. Chaney my executor without bond or consent of the court to take charge of my estate both real and personal and to sell and convert into cash all the property I may have at my death and to pay all debts I may have mad.e and to pay to my heirs such sums of money or property as I set apart for them. ,.
“ ‘To Josie the wife of Charles G. Johnson my residence in the town of Keller, Texas which is all of block 1 that in my possession at this time and all of the household furniture and fixtures not otherwise disposed of.
“ ‘And to Geo. T. McCarty all notes and mortgages that I now hold against him and my executor will give him release of the vendors lien notes I now hold against his farm; And to Lucy E. Dale Five Hundred. Dollars and to J. A. McCarty all notes and accounts which I now hold against him, to be repaid to my estate at his death. And to the heirs of W. E. McCarty one note for $1000.00 given to me by Arch W. McCarty and Five Hundred Dollars And to my brother A. S. Chaney Nine Hundred Dollars with the positive understanding that F. M. Chaney is to never have any part of it ‘W. M. Chaney
“ ‘And to my niece Mabel Derryberry one Plundred Dollars. And to the five heirs of my sister Sallie E. McCall one Hundred Dollars each and if either one of them should die without children before this will is probated their part will revert to my estate. And to the heirs of my brother P. L. Chaney One Thousand Dollars and if one of them should die without children before this will is probated their part will revert to my estate
“ ‘And to Pauline wife of Emory C. Chaney Five Hundred' Dollars.
“ ‘And to Martha McCarty Five Hundred Dollars.
“ ‘And if from any cause there should not be enough money to pay all the bequests the money to be prorated among the heirs and if there should be more than is set apart it is to be prorated among the heirs in proportion to their amount
“ ‘In addition to the above I give to Buck-ners Orphan Home Six Hundred Dollars with any deductions or additions My Executor to use his judgment as to selling what land and other property I may have to pay money to my heirs as fast as collected and to receive himself all the law allows for his services and expense. W. M. Chaney
“ ‘Witness This Sept. — 3rd 1925
“ ‘James E. Jarvies
“ ‘J. Ray White.’
“It was alleged that, the will had been duly probated, and that the executor had duly qualified and had delivered to the devisees named in the will the shares respectively devised, but that there was a large residue of the estate yet to be disposed of. In his petition, the executor states that he was unable to interpret the clause of the will that disposed of the residuary estate reading as follows:
“ ‘And if from any cause there should not be enough money to pay all the bequests the money to be prorated among the heirs and if there should be more than is set apart it is to be prorated among the heirs in proportion to their amount.’
“The respective heirs and devisees interested were all made parties, and it is undisputed that of those named in the will, some are the heirs of W. M. Chaney, in the technical meaning of that term, while others are not so related to him as to inherit under the statutes of descent and distribution. If is the contention of the heirs that by the clause of the will,.of which the executor seeks an interpretation, the residuary estate is to be prorated among the heirs of W. M. Chaney, and that the beneficiaries who are not heirs are to be excluded from participation.
“At a hearing, the court below rendered a judgment which recites the appearance of the parties, the due execution and probation of the will, the appointment of E. C. Chaney as executor, the payment by the executor of the several bequests, and the value of each, except the beneficiary J, A. McCarty, and further found:
“ ‘That said will provided if testator’s estate should be more than enough to pay all of the above bequests, then in such an event, that the remainder of residue of said estate after paying all of the bequests, should be prorated among the “heirs” in proportion to their amounts, and the court finds that by such expression of the testator he meant and intended that such residue should be divided among all of the legatees above mentioned in this judgment and said will, in the proportion that the value of the bequests given to each respective legatee, as above set forth, shall bear to the total amount of all of the bequests above enumerated.’
“From the judgment so rendered, the appellants, who are the heirs of the deceased, W. M. Chaney, have duly appealed. * * *
“There is in the statement of facts an agreement specifying the names of the heirs, as follows:
“ ‘A. S. Chaney, brother, Fort Worth.
“ ‘Emory C. Chaney, the executor, a nephew.
“ ‘Mrs. Virginia Foaker, wife of Ben Foaker, of Oklahoma City, a niece.
“ ‘W. W. Chaney, Glendale, Arizona, a nephew.
“ ‘Myrtle Stidham, wife of Henry Stidham, Blair, Oklahoma, a niece.
“ ‘Mrs. Nannie E. Lance, wife of Harold Lance, Altus, Oklahoma, a niece.
“ ‘All of those just named being the children of P. L. Chaney, deceased, and P. L. Chaney being the brother of W. M. Chaney.
“ ‘Williams J. McCall, nephew.
“ ‘Lonnie McCall, nephew.
“ ‘Mrs. Rosie 1-Iair, wife of W. E. Hair and Mrs. Lillie Hair, wife of M. M. Hair, nieces.
“ ‘They are the surviving children of Sallie E. McCall, sister of W. M. Chaney.
“ ‘Bessie Church, Dorothy Church, R. L. Church and Beatrice Church, all minors, and they are the children of Mrs. Nettie Church, being a niece and the daughter of Mrs. Sallie E. McCall, a sister of W. M. Chaney, deceased.
“ ‘T. C. Church, the father of these children is alive and is the surviving husband of Nettie Church.
“ ‘J. E. McCall, the surviving husband of Sallie McCall, deceased.
“ ‘Mi's. Mable Derryberry, wife of John Derryberry, a niece.’
. “J. Ray White testified that he was acquainted • with the property in Block 1 that was in the possession of W. M. Chaney at the time of his death, and by the terms of the will devised to Mrs. Josie Johnson, the wife of Charles G. Johnson. 1-Ie qualified himself to speak as tovalue, and gave it as his opinion that the property referred to was worth at least $2000.00, and In this he was corroborated by Charles Johnson, Josie’s husband.
“The record discloses that the heirs of the deceased, as distinguished from the devisees, were all given by the testator, specific and definite sums of money; that of the legatees, however, who-were not heirs, Josie Johnson received real estate. Geo. T. McCarty had cancelled a vendor’s lien note on real estate. The heirs of W. E. McCarty had cancelled and given to him a promissory note. J. A. Mc-carty was given all notes and accounts which the testator now held against him to he repaid to' the estate at his death.
“There is no evidence showing, or tending to show, the degree of intimacy or state of feeling existing between the deceased and any of the legatees, or indeed, of the heirs. Nor is there evidence showing or tending to show the financial condition of any of these parties, or whether any dondition existed that would cause or tend to cause the deceased to prefer those who were his heirs, rather than those who were his devisees, save and except that of kinship between the heirs and the testator.
“The vital question, as we view the record, is whether, as appellant insists, the trial court erred in not finding that the clause relating to the disposition of the residuary estate meant that that estate was to be distributed among the heirs of W. M. Chaney to the exclusion of the devisees who were not heirs.
“On -a former day, as will be seen by our opinion in this case, transmitted herewith, we adopted the construction given the will by the trial court and affirmed the judgment, but having again considered the case on the motion for rehearing filed in behalf of appellant, we are not satisfied with our former conclusion, because of which and because of the equity involved, we deem it advisable to certify to your Honorable Court for determination the question of whether the trial court erred in his construction and judgment and did this court err in affirming the judgment below.”

In the first paragraph of the will, the executor is expressly authorized, and in effect directed, by the testator, “to pay to my heirs such sums of money or property as I set apart for them.” It thus appears that the testator, at the outset meant to divide his “heirs,” meaning the beneficiaries of his will, into two classes; one of these classes to be composed of those to whom property other than money was to be “set apart,” the other class to be composed of those to whom “sums of money” were to be “set apart.” In the succeeding clauses of the will, leaving out of consideration, for the present, the residuary-clause, the division line between these two classes of “heirs” is more definitely marked. To Mrs. Johnson, Geo. T. McCarty, J. A. McCarty, and the heirs of W. E. McCarty, specific property is bequeathed; to all the other legatees, sums of money are bequeathed. Up to this point, in the consideration of the ease, nothing is found which manifests a purpose, on the part of the testator, to “set apart” to Mrs. Johnson, Geo. T. McCarty, J. A. McCarty, and the W. E. McCarty heirs, any “sums of money,” or to require the executor to pay them any money. If, therefore, such a purpose is to be found at all, it must be found in the provisions of the residuary clause itself. Here we pause to say that a consideration of the will as a whole reveals that the testator meant to require the sale by the executor of all the property belonging to the estate, except the specific property devised or bequeathed to the beneficiaries just mentioned for the purpose of distributing the proceeds of sale in accordance with the terms of the will. We now take up the residuary clause for examination in the light of all the other provisions of the instrument. In this clause it is provided that “if, from any cause, there should not be enough money to pay all bequests, the money to be prorated among the heirs.” This language, reasonably construed, refers to the money bequests in other parts of the will, and signifies a purpose, on the part of the testator, to provide a ratable distribution of money, upon the happening of the contingency stated, among the legatees, here denominated as “the heirs,” to whom said money bequests are made. The alternative provision of the residuary clause reads, “and if there should be more (money) than is set apart (to these ‘heirs’), it is to be prorated among the heirs in proportion to their amount.” Here again the class, composed of all those legatees to whom sums of money are bequeathed or “set apart” by other provisions of the will, was contemplated by the testator as embracing and defining the beneficiaries among whom he meant this money to be “prorated” in proportion to the specified “amount” of their respective legacies. It is to be observed that this interpretation brings into harmony with one another all the provisions of the will, including the provision by which a bequest of $600 “with deductions and additions” is made to Buckners Orphan Home, and the provision, “My executor to use his judgment as to selling what land and other property I may have to pay my heirs as fast as collected. * * * ”

It appears' from the certificate that there are four surviving children of Sallie E. McCall, deceased, and four children of a deceased daughter of Mrs. McCall. In view of this fact, we think it reasonable to conclude that, by the provision bequeathing to “the five heirs of my sister, Sallie E. McCall one hundred dollars each,” the testator meant to bequeath the sum of $100 to each of the four children of Mrs. McCall, and $100 to her four said grandchildren jointly.

The judgment of the trial court is erroneous, and we recommend that the certified question be so answered.

CURETON, C. J.

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


text:
    FORD v. WHEAT et al.
    No. 1427-5629.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    J. A. Thomas, Louis D. Gayer, and Lloyd Kerr, all of San Angelo, for plaintiff in error.
    Collins, Jackson & Snodgrass, of San Angelo, and Seay, Seay, Malone & Lipscomb, of Dallas, for defendants in error.
   HARVEY, P. J.

This is a suit brought December 20, 1927, by the plaintiff in error, J. J. Ford, on the bond of Ira L. Wheat, as administrator of the estate of E. R. Jackson, deceased. Later Ford filed his amended petition in which he declared on the same cause of action as in his original petition. In the amended petition it is alleged that the will of B. R. Jackson, deceased, was duly admitted to probate in the county court of Sutton county, Tex., and that on May 20, 1914, Ira L. Wheat was duly appointed by said county court as administrator of the estate of Jackson, with the will annexed, and that Wheat duly qualified as such administrator. It is further alleged that on September 24, 1921, the said county court entered the following order in said administration proceeding, to wit:

“On this 24th day of September, A. D. 1921, at a regular term of this court, came on to be heard and considered in the administration of the estate of E. R. Jackson, deceased, the amended final account of Ira L. Wheat, administrator of said estate, this day filed in compliance with an order of this court heretofore made and by agreement of all parties at interest, together with his application to be discharged on such administrator ; and it appearing to the court that due notice has been given as required by law, of the filing of the original final account and that the amendment thereof is filed with the consent of all parties at interest, the 'court proceeded to examine said account, and after fully considering the same, it is ordered by the court that the said amended final account be and the same is hereby approved as made, the same showing that said Ira L. Wheat, as administrator, is due the said estate of E. R. Jackson, deceased, the sum of $1608.21; and it is ordered, adjudged, and decreed that he be held to account to said estate therefor. And it further appearing to the court that there is a balance of $452.63 cash on hand in the First National Bank of Sonora, Texas, belonging to said estate, it is further ordered that the said Ira L. Wheat pay the said $452.63 to J. D. Lowery, clerk of this court, and that he also turn into the registry of this court all notes, certificates of stock, and bonds belonging to said estate, as shown by said report or account, all of which is to. he held by the said Lowery as trustee for the owners of the residue of said estate of E. 'R. Jackson, deceased, subject to the further orders of this court. It is further ordered, adjudged, and decreed by the court that said Ira L. Wheat be and he is hereby discharged as administrator of said estate of E. R. Jackson, deceased, without prejudice to the owners of the residue of said estate.”

In the amended petition it is further alleged that Ford owns, under assignment from the legatees, a fractional part of the residue of the estate. It is further alleged that the item of $1,608.21, with which the administrator was charged in the above order, has never been accounted for or paid over to the residuary owners, and Ford sues in his own behalf, and in behalf of the other residuary owners, for the recovery of said sum from the administrator and the surety on his bond. He also sues for damages at the rate of 10 per cent, per month on account of the detention of said sum.

When the case came on to be heard, Wheat and the surety on his bond interposed an exception to the amended petition, which is to the effect that said petition shows on its face that the plaintiff’s action is barred py the statute of four years’ limitation. This exception was sustained by the trial court, and, the plaintiff declining to amend further, •a judgment of dismissal was entered. From this judgment, Ford appealed; and the Court of Civil Appeals affirmed the judgment. 22 S.W.(2d) 948.

It is'noted that the order set out does not purport such a discharge of the administrator, Wheat, as is contemplated by the statute. R. S. art. 3643. The order for discharge purports to be “without prejudice to the owners of the residue of said estate,” thus, in effect, reserving the responsibility of the administrator to said owners. It also appears from the face of the order that, on the settlement of the final account of the administrator, as authorized by article 3640, the court found a balance of $1,608.21 due by the administrator to the estate; and the administrator was “held to account to the estate therefor.” It was further ordered (presumably with the consent of “all parties at interest”) that other property belonging to the estate be turned over to County Clerk Lowery, to be held by him as trustee for the owners of the residue of the estate, “subject to the further orders of the court.” The order does not say that the administration proceeding is closed. These considerations disclose that the court did not mean the order hereinabove set out to have effect to close the administration proceeding or finally discharge the -administrator from his trust.

This brings up the question as to the right of the residuary owners to sue the administrator and his bondsman before the administrator is discharged and the administration proceeding is closed. The order of September 24, 1921, shows that the essential purpose for which the administration proceeding was opened — that of appropriating assets of the estate to the payment of the debts — had been accomplished. All the things that remained to be done were consequential matters of detail looking to the distribution of the remaining assets of the estate among the owners, and to the discharge of the liability of the administrator to them. A suit in a court of competent jurisdiction is the only adequate means available to the residuary owners to enforce these property rights against the administrator. The furthest the probate court can go in that direction is to enter an order directing the administrator to perform his duty to the owners, in the respects mentioned (which the court has, in effect, done), and to punish the administrator for disobeying the order. In view of all this, it cannot be doubted that a present right of action on the bond of the administrator accrued to the residuary owners in consequence of the order of September 24, 1921. Stewart v. Morrison, 81 Tex. 396, 17 S. W. 15, 26 Am. St. Rep. 821.

Although some six years elapsed after the above right of action accrued before this suit was brought, the suit is not barred. Limitation against an action on the bond of an administrator, executor, or guardian (Rev. St. art. 5528) does not commence to run until he dies or resigns or is removed or discharged. Neither of these events has occurred in the present instance. R. S. art. 5528; Marlow v. Lacy, 68 Tex. 154, 2 S. W. 52; Allen v. Stovall, 94 Tex. 618, 63 S. W. 863, 64 S. W. 777.

We recommend that the judgment of the trial court, and that of the Court of Civil Appeals affirming same, be reversed and that the cause be remanded.

CURETON, C. J.

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

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


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

text:
    AMERICAN SURETY CO. OF NEW YORK v. ALAMO IRON WORKS et al.
    No. 1242-5745.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.
    A. D. Dyess and Leon Jaworski, both of Houston, for appellant.
    Stewart & DeLange, Baker, Botts, Parker & Garwoodi Campbell, Myer, Campbell & Poster, Harry W. Freeman, Fogle, Eastham & Eastham, Fouts, Amerman, Patterson & Moore, H. L. Nicholson, Heidingsfelder & Kahn, Andrews, Streetman, Logue & Mobley, Wolters, Blanchard, Woodul& Pressler, Platt, West & Stevenson, and York & Neeld, all of-Houston, A. Ludlow Calhoun and David E. O’Fiel, both of Beaumont, R. H. Holland, of Houston, and Llewellyn & Dougherty, of Liberty, for appellees.
   . SHORT, P. J.

The question of law involved'in-this case is substantially the same as that involved in American Surety Company v. Axtell Company, wherein this section of the commission answered certain certified questions propounded by the Court of Civil Appeals of the Seventh District. 36 S.W.(2d) 715. A brief statement of the pertinent facts is copied from the application for writ of error, as follows:

“The Dayton Independent School District, on July 27, 1927, entered into a written contract with Charles Dahl, contractor, for the construction and erection of certain school buildings, the provision whereof required said contractor to furnish all of the materials and perform all of the general work in accordance with certain drawings, plans and specifications, for the price and consideration of Íf86,415.44. Contemporaneous with the execution of said contract, the said contractor, as principal, and plaintiff in error, American Surety Company of New York, as surety, executed a bond, payable to the Dayton Independent School District in the sum of ?43,-207.72, conditioned as required by Article 5160 of the Revised Civil Statutes of Texas, 1925. Before completing performance of his contract, Dahl, the contractor, because of certain financial difficulties, realized that he was unable to complete the building within the time limit, and although the contractor contended he had never abandoned the job, the same was brought to completion through the labor and assistance of the school board. The contract was completed during the month of April, 1928, and at this time there were certain materialmen who had claims against the contractor, Dahl, which had never been paid off or discharged. Among these was Alamo Iron Works, the original plaintiff in the trial court and one of the defendants in error herein, and shortly thereafter said Alamo Iron Works instituted suit against American Surety Company of New York, plaintiff in error, on the bond executed as surety for the contractor, Charles Dahl. Joined in this suit as co-defendants were Charles Dahl, the contractor, W. D. Krahl, Trustee in Bankruptcy of the estate of Charles Dahl, bankrupt, Dayton Independent School District, and a number of individuals, firms and corporations, alleged to have an interest in the suit by virtue of material furnished in the construction of the buildings. Practically all of the co-defendants cited by defendant Alamo Iron Works as having an interest in the suit by reason of materialmen’s claims, filed'pleas of intervention, — some filing both such a plea and an answer and cross-action against Charles Dahl, American Surety Company of New York and Dayton Independent School District.

“Plaintiff in error answered by way of general demurrer, special exceptions and general denial. Plaintiff’s in error exceptions were levelled at the cross-bill and petitions of each intervenor as well as at the original plaintiff’s petition, on the ground that the petitions of all of said parties were defective and stated no cause of action against plaintiff in error because each and all of said parties showed by their petition that they had failed to file itemized and sworn claims for material furnished with the contractor or with the County Clerk of the County in which said work was prosecuted within thirty days from the date of the delivery of said material as is required by article 5169 of the Revised Civil Statutes of Texas, 1925, as amended by Act of the 40th Legislature dui-ing its First Called Session.
' “Upon the trial of the case, it was conceded and agreed by all of the materialmen and each of them that none had complied with the provisions of tlie amendment above quoted insofar as same requires notice within thirty days from the date of the delivery of said material. Most of the materialmen, defendants in error herein, based their claims on material furnished after September 5, 1927, the effective date of the amendment above set out. A few of the materialmen, defendants in error herein, about four in number, based their claims on material furnished, in part prior to September 5, 1927, and in part subsequent to September 5, 1927. None of the materialmen, defendants in error herein, based their claims on material furnished entirely prior to September 5, 1927.
“The trial court rendered judgment in favor of the original plaintiff and each of the intervenors, defendants in error herein, for the full amount of their respective claims, from which judgment of the court an appeal was prosecuted by plaintiff in error herein.
“The Honorable Court of Civil Appeals affirmed the judgment of the trial court in all things and held that the amendment to Article 5160 of the Revised Civil Statutes of Texas, 1925, passed by the 40th Legislature during its First- Called Session, and which said amendment became effective September 5, 1927, had no application to the rights of the materialmen, defendants in error herein, to the bond executed by plaintiff in error, although all of the material forming the basis of the materialmen’s claims involved in this ease were delivered after September 5, 1927.”

From the judgment rendered by the Court of Civil Appeals in this case [29 S.W.(2d) 493], the plaintiff in error has successfully prosecuted a writ of error to the Supreme Court and submits, as a proposition under its first assignment of error, the following:

“Although a contract for the construction of a public building, together with a contractor’s bond securing the faithful performance thereof, were executed prior to September 5, 1927, the amendment to Article 5160 of the Revised Civil Statutes of Texas, 1925, passed by the 40th Legislature during its First Called Session, and providing that no person, firm or corporation furnishing material for the construction of a public building shall be secured by a contractor’s bond given in connection therewith unless said claims for material is itemized and sworn to by the owner or his authorized agent and filed with the contractor or with the county clerk of the county in which said work is being prosecuted within thirty days from the date of the delivery of said material and which became effective on September 5, 1927, is applicable to the claims of those materialmen who delivered the material forming the basis of their claim after the effective date of the amendment, to-wit: September 5, 1927.”

We sustain the assignment, believing the proposition to state the law of the case. Having discussed the only question involved in this case in an opinion written in the case of American Surety Company v. Axtell Company, 36 S.W.(2d) 715, we pretermit any further discussion, preferring to adopt what we have said in that case as the law of this case. However, there are some material facts necessary for the trial court to determine in-order to ascertain the relative rights and liabilities of the respective parties and the exact judgment which should be rendered, necessitating that the judgments of the Court of Civil Appeals and of the district court be reversed and that the case be remanded, and we so recommend.

CURETON, C. J.

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

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