author: LESLIE, J.

text:
    COMPERE v. GIRAND.
    No. 885.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 18, 1931.
    Rehearing Denied Oct. 16, 1931.
    Davidson, Doss & McMahon, of Abilene, for appellant.
    Victor H. Lindsey, of Lubbock, for appel-lee.
   LESLIE, J.

The plaintiff, Mrs. Ida Compere, instituted this suit against W. D. Girand to recover upon a promissory note of date May 3, 1928, payable to the order of C. C. Compere, now deceased. The note is in the sum of $300, ■bears interest, and provides for' attorney’s fees. The defendant Girand, among other things, answered that he performed various legal services for the said C. C. Compere during his lifetime, each being of the certain value alleged, and in addition rendered him oth-_ er services by way of advice, consultations, etc., during a,period of some two and a half years prior to hfe death. These services were alleged to be of a reasonable value of $250 per-year. The ease was tried before the court without a jury, and the court rendered a judgment in favor of Mrs. Compere, the appellant, on said note, but credited the amount of that judgment with the sum of $270 and entered judgment finally in favor of appellant in the amount of $63.68, with costs of suit. From this judgment the appeal is taken, and the record contains findings of fact and conclusions of law, as well as a statement of facts.

The first proposition by which the appellant seeks to reverse the judgment is to the effect that, since it affirmatively appears from the undisputed evidence that the appel-lee (defendant), as attorney for C. C. Compere, deceased, had no contract with reference to the payment for his services rendered on an annual basis, it was error to admit proof of the reasonable value of services rendered by the appellee as a practicing attorney to the said C. O. Compere, which reasonable value is ■based upon the annual basis of services as such attorney.

The form of the question is technically objectionable for the reasons assigned, but we are unable to see that the defendant’s rights have been prejudiced thereby. True, the ap-pellee was asked to state the reasonable value of his services per year, but, under the pleadings and the testimony, had he inquired the reasonable value of the two years’ services rendered the deceased, no objections could properly have been made to the same. The question actually propounded called for an answer on the basis of annual services, but it covered the same ground, no more nor less, than had the question .been put as above suggested. The answer elicited by either form of the question is, and necessarily would amount to, the same. The trial court evidently considered all the testimony, and while the judgment rendered on the cross-action is considerably less than the amount ■claimed by the appellee, it is nevertheless supported by the pleadings and the testimony, and should be affirmed.

The second proposition is the same in substance as .the first. The same question is raised at different stages of the trial. Both are overruled, and the judgment is affirmed.

On Rehearing.

The appellant, in a. motion for rehearing, for the first time urges that the record in this cause presents fundamental error requiring this court to set aside its judgment heretofore rendered in pursuance of the original opinion delivered in this cause. It is contended that the judgment of the trial court, and consequently of this court, is a nullity, since the cause was tried before a special judge agreed to by the parties, and not a-regularly elected or appointed judge. The transcript shows that the cause was tried at a

regular .term of the county court of Taylor county before the Honorable W. B. Lessing, special judge, who was appointed to try the cause by virtue of an agreement of the parties. The judgment was signed by said Less-ing as special judge, and the judgment re■cites: “On this the 26th day of January, 1931, came on to be heard the above entitled and numbered cause before the Hon. W. E. Less-ing, Special Judge, agreed to between the parties,” etc. This is all the record shows concerning the point raised, and it fails to show that the regular judge of the county coux-t was disqualified, or the cause of such disqualification, if any.

From the foregoing the appellant contends that fundamental error is conclusively established under the following authorities: Pickett et al. v. Michael (Tex. Civ. App.) 187 S. W. 426; Dunn v. Home National Bank (Tex. Civ. App.) 181 S. W. 699; Grogan v. Robinson (Tex. Civ. App.) 8 S.W.(2d) 571.

The record discloses that the cause came on for hearing before the Hon. W. E. Lessing, “special judge agreed to by the parties and duly qualified to try said cause.” If the authority to try the cause existed in the special judge, it must be derived from the record as indicated, and the implications or presumptions arising therefrom, when considered in the light of the conduct of the litigants who voluntarily appeared and tried the cause before the special judge, without offering any objections for so doing.

The point emphasized in the motion is that: “In the instant case it will be noted that, in no part of the record is there any showing whatever as to the disqualification of Hon. Tom K. Eplen, the regular judge of said court.” It will be observed that the objection does not affirm that said Eplen was not disqualified.

In our opinion the authorities above cited, and relied on by appellant as establishing fundarhental error in the record before us, do not necessarily support appellant’s proposition. In truth, they have no application to the facts of this record. Under the Constitution, art. 5, § 16, and the authorities there cited, as well as article 1930, R. S. 1925, providing for appointment of a special judge by consent of the parties, there can be but one occasion when the parties are authorized, through a mutual consent, to “appoint a proper person to try the case,” and that occasion is when the regular judge is disqualified for a constitutional or statutory reason. Constitution, art. 5, §§ 11 and 16; Bailey v. Triplett Bros. (Tex. Civ. App.) 278 S. W. 250; Summerlin v. State, 69 Tex. Cr. R. 275, 153 S. W. 890. Under other circumstances the selection of the judge by agreement would be but an effort to confer jurisdiction by agreement, and such cannot be done. There are many cases to that effect, as may be seen from the authorities just cited.

Referring now to the above authorities relied on by the appellant, we find that, in the Pickett Case, the regular judge was unable to discharge his official duties because of “the necessity of having an operation performed.” In the Dunn Case the regular judge was “quarantined,” and in the Grogan Case the regular judge left- town. In each case the record affirmatively showed that these were the sole circumstances respectively which prompted the parties to appoint a special judge by agreement. The necessity of an operation,- being quarantined, and leaving town have never been made matters of disqualification of a regular judge by either the Constitution or the statutes. Hence, in the cases cited the record in each affirmatively discloses that there was no disqualification and therefore no legal basis authorizing the parties “to appoint a proper person to try the case.” Bailey v. Triplett Bros., supra; Pickett v. Michael, supra; Texas & P. Coal Co. v. Ready (Tex. Civ. App.) 198 S. W. 1034. Evidently appellant’s authorities do not support the contention made.

We do not agree that the record discloses fundamental error and justify that conclusion by the following reasons:

The pertinent portion of section 16, art. 5, of the Constitution of Texas (Vernon’s Annotated Constitution), provides: “When the judge of the County Court is disqualified in any case pending in the County Court the parties interested may, by consent, appoint a proper person to try said ease, or upon their falling to do so a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law.” (Italics here and elsewhere ours.)

Article 1930, R. S. 1925, provides .that: “When a judge of the trial court is ¡lisquali-fied, the parties may, by consent, appoint a proper person to try such case.” The disqualifying circumstances are well known and may be seen by reference to section 11, art. 5, of the Constitution. The above provisions set forth the circumstances under which the litigants may appoint a proper person to try the case.

Article 1931, R. S. 1925, provides: “Whenever a judge of the county court is disqualified to try a civil case pending in the county court, and the parties shall fail at the first term of the court to agree upon a special judge, the judge sh9.ll certify his disqualification to the Governor and the failure to agree upon another to try the same, whereupon the Governor shall appoint some person, learned in the law to try such case.”

Articles 1932 and 1933, following, prescribe certain rules wjth reference to special judges in the event of the disqualification of the regular judge. They are not material here, and together with the articles quoted they refer or relate to the subject of a special county judge in the event of disqualification of the regular judge.

Article 1934 of the saíne statute relates to a different situation, and what may there be done is not predicated upon the disqualification of the regular judge. This article provides: “If a county judge fails to appear at the time appointed for holding the court, or should he be absent during the term or unable or unwilling to hold the court, a special county judge may be elected in like manner as is provided for the election of a special district judge. The special county judge so elected shall have all the authority' of the county judge while in the trial and disposition of any case pending in said court during the absence, inability, or such refusal of the county judge. Similar elections may be held at any time during the term, to supply the absence, failure or inability of the county judge, or any special judge, to perform the duties of the office. When a special county judge shall have been so elected, the clerk shall enter upon the minutes of the court, a record such as is provided for in like cases in the district court.”

Under the circumstances mentioned in this article, and especially in the first sentence thereof, “a special county judge may be elected in like manner as is provided for the election of a special district judge,” which is to say that he may be elected in the manner provided for the election of special judges for similar reasons, as set out in articles 1887 to 1893, both inclusive; articles 1891 and 1892 specifying the duties of the clerk to enter a record of such election in the minutes of the court. Of course, no question of the disqualification of the regular judge arises under these circumstances, and to make the connection plain we here set out article 1887, R. S. 1925: “Should the judge of a district court on the first or any future day of a term, fail or refuse to hold the court, the practicing lawyers of the court present may elect from among their number a special judge who shall hold the court and proceed with the business thereof.”

Adverting to article 1934, above, we find the last sentence thereof as follows: “When a special county judge shall have been so elected, the clerk shall enter upon the minutes of the court, a record such as is provided for in like eases in the district court.” "From these provisions we gather that, when a special county judge has been so elected by the attorneys, it is then made the duty of the clerk of the county court to record the proceedings thereof in the minutes of the county court the same as is required by article 1891, R. S., which prescribes the character of record that the district clerk must make when a special judge of the district court is elected by the lawyers under the circumstances neces-stating such an election. Article 1887. This record by the-county clerk is when the special county judge has been so elected. Article 1934. And, however desirable or appropriate it might be for the 'clerk to do so, the statutes nowhere require that the clerk of the county court make such entries upon the minutes of that court where the parties, by consent, appoint a person to try the case (article 1930), in the event of the disqualification of the regular judge. There seems to be no such omission with reference to these duties of the clerk where the parties, by consent, appoint a special district judge in case of disqualification (article 1886, R. S.), nor under circumstances where the bar elects such special district judge (article 1891).

Hence, in considering the exact point raised in the motion for rehearing — that at no point in the record is there any showing as to the disqualification of the regular judge — we are confronted with the situation that there is no statute requiring the clerk to make a record of such matter where a special county judge is appointed by agreement to try a case under circumstances when the regular judge is disqualified.

This would seem to be sufficient to justify the court in overruling the appellant’s contention, as it is aimed at omissions in the record, or a failure in the minutes of the court to show the disqualification of the regular judge.

Further, upon the point raised, the opinion in the case of Bailey Bros. v. Lochman et ux. (Tex. Civ. App.) 241 S. W. 626, would require that appellant’s motion for rehearing be overruled. The record in that case showed that the Honorable J. W. Darden was the regular county judge of Stephens county, and the case was tried and judgment rendered by C. J. O’Conner, special judge, while the record did not show that Judge Darden was disqualified, nor that O’Conner was agreed upon as the special judge, nor that he took the oath prescribed by law. In the court below the appellant made a motion for continuance which was overruled, and, so far as the record shows, made no objection to trying the case before the special judge. It appears that the only objection made in the appellate court 'was that the record failed to show the disqualification of the special judge. Upon the record and in view of the facts stated, the contention was overruled.

There are, however, other cogent reasons for our ruling in this case) In view of the state of the record and the conduct of the parties in trying the case before the special judge without objection, and in objecting for the first time in this court that the minutes of the trial court failed to show the disqualification of the regular judge, and the appointment of the special judge, the language of our Supreme Court, through Stayton, Chief Justice, in the case of Schultze v. McBeary, 73 Tex. 92, 11, S. W. 924, 925, is pertinent. There the authority of the special judge is questioned in a case where the disqualification of the regular judge appears, and the court used this language: “The parties made no objection to the trial of the cause, by the special judge until after the trial, and, were it necessary, it might well be held that they thus waived all question as to the propriety of the appointment at the time made.”

In the case of Hess v. Dean, 66 Tex. 663, 2 S. W. 727, the court had before it a transcript showing the case was tried before a special judge, and the judgment recited that the regular judge was disqualified, and that the special judge was appointed by the governor to try the case. As to other matters relating to the authority of the special judge to act, the transcript was silent. Upon the question of fundamental error suggested, the court, through Willie, C. J., used this language: “We think that where the record shows these facts, and the parties have submitted to the jurisdiction of the special judge, and have assigned no error here that questions it, we may presume that the appointment was regular, and take jurisdiction of the cause.”

In the Hess Case the transcript disclosed the trial before the special judge, that the regular judge was disqualified, and that the Governor appointed the special judge. Clearly in such a case showing disqualification of the regular judge, the proper procedure was for the parties to appoint by agreement a proper person to try the case (article 5, §§ 11 and 16, Constitution), and upon their failing to do so, that fact and the disqualification of the regular judge should have been certified by him to the Governor, who was then authorized to appoint someone to try the case. Article 5, §§ 11 and 16, supra, and article 1931, R. S. 1925. Based upon this showing from the transcript, the court used the language above quoted.

If these facts form the basis of the presumption that (1) the parties failed to agree on a special judge, and (2) that by reason thereof the regular judge certified that fact, (3) together with his disqualification, to the Governor, who, in pursuance thereof, (4) appointed a special judge, then we see no reason why, in the instant case, where the parties agreed to the special judge and tried the case before him without objection (until the motion for rehearing), a like presumption should not arise by virtue of the record and recited facts, to -the effect that the disqualification of the trial judge would be presumed as a prerequisite to the appointment of the Honorable W. E. Lessing, special judge, by agreement of the parties.

In Brinkley v. Harkins, 48 Tex. 225, wherein no question was raised below upon the authority of the special judge to hear and determine the case, and the record did not show how he became special judge, the Supreme Court did not dismiss the appeal taken from the judgment rendereil by such special judge, but assumed jurisdiction and passed upon the merits of the case. The opinion was by Roberts, C. J.

That such a presumption may be indulged in the state of this record we cite Early v. State, 9 Tex. App. 476, Smith v. State, 24 Tex. App. 290, 6 S. W. 40. 'The syllabus in the Early Case states the pertinent facts of the record, as well as the holding of the court. It is as follows: “ ‘Now on this day came the State and the defendant, by their attorneys, and * * * agree that W. H. A., an attorney of this court, shall preside as special judge for the trial of this cause; whereupon the said W. H. A. is now duly sworn according to law as special judge to try this cause.’ In the absence of anything appearing to the contrary, this court will presume that the regular judge was disqualified by some statutory cause, and, that the special judge was selected for that reason, and that the proper oath was administered to him as such judge.”

This opinion was cited with approval in the Smith Case and the presumption stated in the excerpt from the .syllabus is the one which is indulged here in favor of the authority of the special judge to try the instant ease.

That the evidence of such jurisdictional matters may be supplied by presumptions, in certain cases when the record supplies other and essential facts, may be seen from the opinion of our Supreme Court in Shultz & Bro. v. Lempert, 55 Tex. 273, 279. It is there said: “Appellants say there is fundamental error because the case appears to have been tried by a special judge, and the record nowhere shows the disqualification of the district judge, or the agreement authorizing the special judge to sit. This objection presupposes that the special judge was selected by agreement, or appointed by the governor for the trial of this particular case. He may have been elected by the practicing lawyers present, because of the absence or inability of the judge of that district."

Here it will be observed that, where the record was silent as to the source from which the special judge derived his authority, the Supreme Court presumed that he had been elected by the bar and held that, as the parties had submitted to the jurisdiction, neither of them could question it upon appeal. Evidently in that case the objection does presuppose that the special judge was selected by agreement or appointed by the Governor after the parties were unable to agree upon a special judge, and further presupposes, as we think, that the regular judge was disqualified. The presumption there indulged covers considerable ground. The instant case furnishes greater reason for its indulgence!'

Aside from the fact that there is no statute requiring the county clerk to enter in the minutes of the county court matters which the appellant here contends should appear of record (Bullock & Blassingame v. St. Louis S. W. Ry. Co. [Tex. Civ. App.] 18 S.W.(2d) 722), it may be seen from the following authorities, as well'as those cited, that the actual entry in the minutes of the facts of the regular judge’s disqualification and the selection of the special judge to take his place are matters commonly waived, were it conceded that the statute required their entry in such cases: Bailey Bros. v. Lochman et ux. (Tex. Civ. App.) 241 S. W. 626, 627; Moye et al. v. Houston Oil Co. (Tex. Civ. App.) 260 S. W. 294; Heidelberg Amusement Club v. Mercedes Lbr. Co. (Tex. Civ. App.) 180 S. W. 1133; Ellerd v. White (Tex. Civ. App.) 251 S. W. 274; Bullock & Blassingame v. St. Louis & S. W. Ry. Co., supra; Texas Cent. Ry. Co. v. Rowland, 3 Tex. Civ. App. 158, 22 S. W. 134, 136; Davis v. Bingham (Tex. Civ. App.) 46 S. W. 840.

For the reasons assigned, the motion for rehearing is overruled.


source: Caselaw Access Project

author: O’QUINN, J.

license: Public Domain

text:
    L. J. TILLERY OIL CO., Inc., v. SNYDER.
    No. 2047.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 22, 1931.
    E. L. Reid, of Orange, for appellant.
    W. E. Lea, of Orange, for appellee.
   O’QUINN, J.

April 3, 1928, the Cameron-Anderson Oil Company owned a mineral lease situated in Orange county, Tex., and was operating same. On said date one W. D. Parker recovered a judgment in the county court of Orange county against said oil company in the sum of $202.50. September 27, 1928, an execution was duly issued out of said court on said judgment, and the sheriff of Orange county, acting under the authority of said execution, went upon the premises of said Cameron-Anderson Oil Company, viewed certain property situated thereon (pumping outfit), and levied on said property by noting on the hack of the execution the following:

“Came to hand this the 27th day of September, 1928, at 10 A. M. and executed this the 27th day of September, 1928, at 3 P. M., by levying upon the following personal property of Cameron-Anderson Oil Company, to-wit:

“Tanks, standard rig equipment for pumping well located on Cow Bayou Oil Company’s lease of the bayou leased from the state of Texas, next to the Gunstream lease of the Sun Oil Company at Orange oil field in Orange County, Texas.”

In making the levy, as aforesaid, the sheriff stated to those in possession of said property that.'he was taking possession of said property under said execution' and was going to sell same. The sheriff did not remove the property from the premises, hut same remained on the premises where he found it, up to and until the bringing of'the instant suit by appellee Snyder, nor did the sheriff place said property in the possession of any one to hold for him, but left same wholly in the possession of the person operating same at the time he made the levy. -The property levied upon was situated about seven miles from the courthouse in Orange county. After levying upon said property, the sheriff took ,no further action as to said property, or exercised any authority over same, except to duly give notice of the time and place where same would be sold, to wit, October 30, 1928, at the courthouse door.

The property levied upon, as aforesaid, consisted of: “Two steel tanks about 16 ft. in diameter and 12 ft. high, a standard drilling rig equipment consisting of a wooden derrick about 40 ft. high, an electric motor for operating the rig in drilling for oil, steel drums for winding the cable in lifting the pipe, crown block, steel pulleys, one walking beam, tools and other parts necessary for the drilling of an oil well, and also 3215 ft. of iron pipe or tubing in the well for pumping same.”

On October 30, 1928, within the hours prescribed by law, the sheriff of Orange county sold said property at the courthouse door of said county to appellee, B. J. Snyder. In making the sale, 'the sheriff made same by reading the description of the property levied upon as contained in his levy indorsed on the back of the execution, and sold said property in bulk as a whole. The property Was not present at the sale, but, as above stated, was at the place where the levy was made, some seven miles from the courthouse. At the time of the execution sale, all of the property sold was susceptible of being exhibited to the view of those attending the 'sale, except the* 3,215 feet of iron tubing which, at the time of the levy and the sale, was situated in the oil well and could not be viewed without being 'drawn out of the well, but which could have been done, and hence all of the property was susceptible of being exhibited to view if said sale had been made upon the premises where situated at the time of the levy.

After the sheriff’s sale, as aforesaid, appel-lee, Snyder, claimed to be the owner of all the property purchased by him at said sale.

About a year after said sheriff’s sale, the lessor of the Cameron-Anderson' Oil Company had said mineral lease hereinbefore mentioned forfeited and set aside in the district court of Orange county, Tex., and thereafter leased the same to appellant, L. J. Til-•lery Oil Company, and in connection with said lease sold to appellant all personal property situated on said premises, and thereafter it claimed the property, the 3,215 feet of tubing, and took possession thereof. On January 11, 1930, appellee, Snyder, brought this suit to recover the 3,215 feet of tubing, same being a portion of the standard drilling equipment purchased by him at the execution sale, and in the alternative for its market value, and sequestrated said property. Appellant duly replevied the property. The market value of tubing at the time of replevy was $562.-62. The value of the other property sold, and not here in question, was a substantial portion of the whole property sold. • The tubing is the only property here inyolved.

Appellee, plaintiff below, sued appellant for the tubing, alleging that he bought same at execution sale and that appellant had taken possession of same and had appropriated it to its own use. Appellant, defendant below, answered by general demurrer, several special exceptions, general denial, and specially that the levy by the sheriff on the property in question, its sale to appellee, and the bill of sale given to appellee by the sheriff to said property, were void and of no effect, because the sheriff, in levying upon said property, the same being personal property, did not take same into his actual possession, as required by law, and did not keep said property in his actual possession, nor the possession of anyone for him, up to the time of the sale, and that the sheriff did not have said property in his possession and present at the courthouse door at the time of the attempted sale of same, as required by law, said property then and there being susceptible of being so exhibited, but that same was, at the time of said sale, situated at the place where same was levied upon, some seven miles from said courthouse, the place of sale.

The case was tried to á jury. At the close of the evidence appellant moved the court for an instructed verdict in its behalf, which was denied, and the case then submitted to a jury upon special issues, in answer to which the jury, among other things, found that the tubing in question was a part of the standard rig equipment for pumping described in .the sheriffs sale to appellee, and that said tubing was worth 17½ cents per foot. On the findings of the jury, judgment was rendered for appellee for title and possession of the tubing, and the appellant having replevied the property, judgment was rendered against appellant and his sureties on the replevin bond for the value of the property in the sum of $562.62. From that judgment appellant brings this appeal.

Appellant presents three propositions for the reversal of the judgment:

(a) “Plaintiff’s right to recover being based upon title derived through a sale under execution of personal property, and the evi^ dence conclusively showing that the sheriff, in attempting to levy on the property sold under the execution, did hot take such personal property into his possession at the time of making such levy, or at any time thereafter, and did not keep such property in his possession from the time of the making of such levy until the time of sale, such levy was void, and the subsequent sale made by virtue of such attempted levy was void, and plaintiff acquired no title thereunder.”
(b) “Plaintiff’s right to recover depending upon the validity of his title acquired through a sale under an execution of personal property, was not entitled to judgment in his favor, the evidence conclusively showing that such property was susceptible and capable of being exhibited at a sale thereof under execution and that it was attempted to be sold under execution at the courthouse door, but that at the time of such attempted sale such property was not in the possession of the sheriff and was not present at the place of sale, but was situated about seven miles from the place of sale, such attempted sale being a nullity and plaintiff acquiring no title thereto.”
(c) “Plaintiff’s right to recover depending upon the validity of his title to personal property acquired through his purchase of such property at a sale under execution, was not entitled to judgment in his favor, the evidence conclusively showing that a portion of such personal property was susceptible and capable of being exhibited at a sale thereof under execution, and that the value of such part was a substantial portion of all the property sold, and further that such property was sold as a whole, or in bulk, at the courthouse door and at the time of such sale no part of said property attempted to be sold was in the possession of the sheriff nor present at the place of such attempted sale, but all of it was situated about seven miles from the place of sale, such attempted sale being a nullity and plaintiff acquired no title thereto.”

Appellant contends that because of each and all of the foregoing propositions its request for a peremptory instruction should have been granted, and that the judgment should here be reversed and rendered in its favor.

We shall discuss the second proposition first. The property levied upon was personal property. The portion here in controversy was iron tubing situated at the time of the levy and sale down in an oil well about seven miles from the courthouse, the place of sale under the execution. The law requires an officer, in making a levy under execution upon personal property, to take the property into his possession. Article 3793, R. S. 1925. That he shall keep securely all personal property levied .upon by him for which no delivery bond has been-given. Articles 3799 and 3801, R. S. 1925. That the sale of personal property taken in execution shall be made on the premises where it is taken in execution or at the courthouse-door of the county, or at some other place, if, owing to the nature of the property, it is more convenient to exhibit to the purchasers at such place. Article 3811, R. S. 1925. That personal property shall not be sold, unless the same be present and subject to the view of those attending the sale, when it is susceptible of bejng thus exhibited, with certain exceptions, which do not here apply. Article 3813, R. S. 1925. The sale was made at the courthouse door, and no portion of the property levied upon was at the place of sale. The law provides the several places where personal property taken in execution may be sold. The primary purpose of the law, relative to the place of sale, is that it shall be where the property may be exhibited to those attending the sale, if susceptible of being exhibited, that they may have the opportunity of viewing the property and thus, perhaps, enhancing its sale valiie. The instant property was susceptible of being exhibited, even at the courthouse door, but especially at the place of levy. These statutes, articles 3811 and 3813, are clear, unambiguous, and mandatory. They must be complied with or the sale is void. The law will excuse the presence at the sale only when the nature of the property is such as to prevent its being exhibited. Hopping v. Hicks (Tex. Civ. App.) 190 S. W. 1119 (writ refused); Dickinson Paper Co. v. Mail Publishing Co. (Tex. Civ. App.) 31 S. W. 1083; Gunter v. Cobb, 82 Tex. 598, 606, 17 S. W. 848; Flemming on Void Judicial Sales (3rd Ed.) § 31:

Our bolding that the sale under execution wás void, it follows that the court erred in not granting appellant’s motion for an instructed verdict, and renders it unnecessary to discuss the other questions presented. The judgment is reversed and judgment here rendered for appellant.

Reversed and rendered.


author: FUNDERBURK, J.

text:
    BANKERS LLOYDS v. MONTGOMERY.
    No. 876.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 18, 1931.
    Rehearing Denied Oct. 16, 1931.
    Scarborough, Ely & King, of Abilene, for appellant.
    Cox & Hayden, of Abilene, for appellee.
   FUNDERBURK, J.

. The suit is one by J. E. Montgomery against •Bankers Lloyds to recover workmen’s compensation for injuries received by him while an employee of Taylor Gin Company. From a judgment for plaintiff, the defendant has appealed.

Only two questions of law are presented for our decision. The first question arises upon the following state of facts: On August 31, 1929, or a day or two prior thereto, Johnny Cox, an insurance agent of Abilene, Tex., proposed to the Taylor Gin Company ]to procure for them, upon certain terms,- a policy of compensation insurance. The proposal having been accepted, Cox, being without application blanks, made a memorandum in writing of the facts necessary to have the policy written, and agreed that the insurance would be effective from that time. This memorandum was transmitted to Bankers Lloyds at its Dallas office, with a letter dated August 31, 1921, requesting that a policy be issued dated as of that day. The request was not received until September 3, 1929. Instead of immediately issuing a policy in compliance with the request, a formal application was prepared to be signed by the gin company, which, with a policy dated September 10, 1929, was sent to Cox to have the application signed, and the policy delivered, which was done. The policy contained the following provision: “The period during which the policy shall remain in force, unless cancelled as in the policy provided, (herein called the Policy Period) shall be from August 31st, 1929, to August 31st, 1930, at twelve and one minute o’clock a. m. Standard time as to each of said dates, at the place where any operation covered hereby is conducted,” etc. On the afternoon of August 31, 1929, Montgomery received the injury for which compensation is claimed. Cox had notice of the injury at least as early as September 2d. Other than the notice to Cox, Bankers Lloyds had no notice of the injury until after the policy was issued and delivered. Cox had no authority to issue policies of compensation insurance. There was no evidence or finding that he had authority to make any kind of a contract of compensation insurance.

Under these facts, the appellant submits as a proposition that “the undisputed evidence before the court showed that the injury in question occurred prior to the issuance of the policy; therefore the court should have given appellant’s requested instructed verdict because the policy was not in force at the time of the injury.” It seems to be the position of appellant that its proposition is established by a showing that Cox had no authority to write a policy or bind the company upon a contract. We have, however, been unable to adopt this view. It is unquestionably true that, taking the formal written application' and the policy written thereon, as constituting the contract, if any, upon which the recovery must be based, such contract was not in existence at the time of the injury. If the time the contract was in force was necessary to be determined alone from the date of the policy, or the time of its delivery, a very different question, no doubt, would be presented. But this policy expressly provides the period of time it was to be in force, and that included the time when the injury happened. The policy, therefore, on its face, purports to bind the company to a liability for injuries that might have occurred before the date of the policy or the time of delivery. The due execution and delivery of the contract of which the policy is the evidence is unchallenged. No issue in that regard is raised by questioning the authority of Cox. If it be granted that Cox had no authority to make a contract of insurance, temporary or otherwise, it does not follow as a matter of law that the insurance company itself was without power to contract that the policy issued by it should cóver liability for an injury occurring at a time prior to the date of the issuance and delivery of the policy. Whether Cox had any authority or not to bind the company to an agreement that the insurance should be in force from the time he took the informal application, the subsequent issuance of the policy, in effect, expressly so providing, eliminated any question of that agent’s authority, or the materiality thereof.

In 32 C. J. 1097, it is said: “While a general agent may bind his principal by issuing a polidy covering a known loss, either total or partial, this is true only where a contract of insurance has been concluded prior to the loss, and the policy is merely evidence of the contract; in the absence of special authority a general agent is without power to issue a policy for a known loss occurring before the terms of a contract of insurance has been settled upon.” But no question of the authority of any general agent is presented. This statement of the law does imply the power to issue a policy with such a provision. If it be true that there was, prior to the issuance of the policy, no pre-existing contract of insurance at the time of the injury, there was an agreement to such effect, valid as a contract in all respects, save perhaps the want of authority in Cox to make it, which want of authority became immaterial when the same provision was expressly embodied in the policy. The insurer, in directing Cox as its agent to deliver the policy, which expressly covered a liability for any time subsequent to one minute after 12 o’clock a. m. August 31, 1929, was charged with knowledge that an injury may have occurred and a consequent liability already accrued. It had the means of protecting itself against that possibility by directing an investigation to ascertain if such was the fact, and, if found to be so, in declining to deliver the policy. Had that course been pursued, then the authority of Cox would have become a very material inquiry. But, as we have already said, as we view it, that question has been rendered immaterial. The proposition will therefore be overruled.

The other question relates to the testimony of certain physicians, who, as witnesses, were permitted to testify, over the objection of appellant, one, that the injuries of the plaintiff were permanent, and that by reason of the injury the plaintiffs arm was totally incapacitated; another, that appellee could not do usual and customary manual labor ; and still another, that the appellee was permanently and totally disabled. The common objection to the testimony was that same invaded the province of the jury and constituted an opinion on a question of law and fact that was to be determined by the jury. In support of its contention, appellant only cites as authority the case of Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64. We do not regard the decision in that case as applicable. Whether the plaintiff’s injuries were permanent, and whether same totally or partially incapacitated him, are questions of fact and not questions of law.

That the permanency or not of injuries is a proper subject of expert testimony has been recognized in many cases. Texas & P. Ry. Co. v. Sherer (Tex. Civ. App.) 183 S. W. 404; Missouri, K. & T. Ry. Co. v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 511; Chicago, R. I. & P. Ry. Co. v. Hiltibrand, 44 Tex. Civ. App. 614, 99 S. W. 707; King v. Ins. Ass’n (Tex. Civ. App.) 8 S.W. (2d) 560. In a note to Cross v. Syracuse (N. Y.) 21 Ann. Cas. 328, the editor precedes a long list of authorities on this question, with the statement that: “There seems to be no dissent from the rule that a physician or surgeon testifying as an expert may give his opinion as to whether the injury to the plaintiff is permanent or whether a recovery is probable.”

No point is made that the rule would be different as to such testimony respecting incapacity resulting from injury. In Texas Employers’ Insurance Ass’n v. Shilling (Tex. Civ. App.) 259 S. W. 236, it was held that expert testimony of a physician that the party was not incapacitated was admissible as against the objection that same was not the subject of expert testimony. In Galveston, H. & H. R. Co. v. Alberti, 47 Tex. Civ. App. 32, 103 S. W. 699, the court held that a physician, acquainted with the nature and character of an injury, could give his opinion that the injured person could have used her limbs or ankle without the aid of crutches sooner than she did. “Definite possibilities or probabilities as to whether a certain force or other cause may produce a given physical result,” is a proper subject of expert testimony. 22 C. J. 545. In the late Kentucky case of Wakenva Coal Co. v. Combs, 232 Ky. 546, 24 S.W.(2d) 275, the subjects of permanency of injury and incapacity are recognized as. being governed by the same rule. We are therefore of opinion that there was no error in the admission of the testimony.

We have concluded that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

On Rehearing.

Appellant, in its motion for rehearing, in addition to its other assignments contending that we were in error in our decision and disposition of the case as shown by our original opinion, urges fundamental error in the judgment of the trial court. It is insisted that there was no pleading to support the verdict wherein the jury found, in response to a special issue submitted, that plaintiff’s injury had resulted “in the total incapacity of the plaintiff J. E. Montgomery’s right arm.” If the record supports this contention, a fundamental error would be shown, as we held in Sivalls Motor Co. v. Chastain (Tex. Civ. App.) 5 S.W. (2d) 185, which appellant cites in support of its motion. While plaintiff’s petition contains general allegations to the effect that plaintiff, by the alleged injury, had suffered a permanent disability and total incapacity, it was also alleged that, by virtue of the alleged injuries, “the plaintiff has a total permanent disability to his arm by virtue of said un-united fracture.” Again it was alleged: “That by losing the use of said arm he is unable to hold employment or perform his usual and customary work as a laborer and carpenter, or any other kind of labor, and that he is not fitted for other employment except manual labor.” These allegations are not inconsistent with the general averments of permanent and total incapacity. The issue submitted to the' jury, and which is necessary to the support of the judgment, was: “Did such injury result in the total incapacity of the plaintiff J. E. Montgomery’s right arm ?” The jury made an affirmative finding upon this issue, and in response to another issue found that the injury would be permanent. No assignments question the form of the submission of these issues.

R. S. 1925, art. 8306, § 12, enumerates certain injuries, the compensation for which shall be in lieu of all other compensation except medical aid, hospital services, and medicines. One such specific injury is: “Eor the loss of an arm at or above the elbow, sixty per cent of the average weekly wage during two hundred weeks.” It is also provided in the same article that: “In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.”

We are therefore of opinion that the pleading was sufficient to support a verdict to the effect that plaintiff had suffered a permanent partial incapacity, in that he had lost the permanent use of his arm. We also think that, in the absence of objection to the form-of the issues submitted, they are properly to be construed as calling for such findings.

Being of opinion that the motion for rehearing should be overruled, it is accordingly so ordered.


author: RANDOLPH, J.

text:
    DODSON v. KEMPER MILITARY SCHOOL, Inc.
    No. 3650.
    Court of Civil Appeals of Texas. AmariEo.
    Sept. 23, 1931.
    Rehearing Denied Oct. 14, 1931.
    Killough & Dotson, of Vernon, for appellant.
    W. D. Hollars, of Vernon, for appellee.
   RANDOLPH, J.

This suit was filed by Kemper Military School, Inc., against appellant, Dodson, to recover the sum of $614.60 alleged to be due to the appellee as tuition and for certain supplies furnished J. E. Dodson, Jr., son of the appellant, who was alleged to have been a student in appellee’s school, situated at Booh-ville, Mo. Attached to the appellee’s petition as an exhibit was a duly verified account setting out the items of indebtedness sued on.

The appellant 'filed an answer containing a general denial and specially pleading fraud and failure of consideration.

The appellant’s propositions upon whiGh he bases his appeal present error on the part of the trial court involving the same general question as follows: There being no verdict of the jury in answer to special issues showing that the appellant was indebted to the appellee in the sum of $614.60, the court erred in rendering judgment against appellant for that amount; the case having been submitted to a jury. The trial court erred in overruling appellant’s motion for judgment in his favor; the court having submitted the case to the jury upon special issues, and having failed to submit any issue with reference to the grounds of recovery alleged in appel-lee’s petition, and appellee having failed to request the submission of any such special issue, the trial court erred in rendering judgment for appellee.

The court submitted the following issues to the jury, which were answered by the jury as indicated after each question:,

“Special Issue No. 1. At the time the defendant agreed to send his son to Kemper Military School, did or not the representative of said school represent to the defendant that said school was one of the best schools in the United States' to prepare students to take up the study of medicine and surgery, and that the professors who taught chemistry, zoology and other scientific studies in said school were well qualified both from the standpoint of character and scholarship to teach such pre-medic students. Answer yes or no. Answer: Yes.”
“Special Issue No. 2. Did the defendant believe said representations at the time he sent his son to Kemper Military School? Answer yes or no. Answer: Yes.”
“Special Issue No. 3. Was said representation true or false? Answer as-you find the ■facts to be. Answer: True.”
“■Special Issue No. 4. Has the defendant been damaged in any amount by reason of any misrepresentations on the part of the plaintiff or its representatives, if any were made? Answer yes or no. Answer: No.”
“Special Issue No. 5. If you have answered special issue No. 4 ‘Tes,’ then answer the following special issue:
“What amount do you find to be the reasonable amount of his damages, sustained by the defendant, if any? Answer in dollars and cents. Answer: -.”
“Special Issue No. 6. Did the instructors or any of them in the plaintiff institution mistreat J. E. Dodson, Jr.? Answer Tes or No. Answer: Tes.”
“Special Issue No. 7. If you have answered the preceding issue No. 6, ‘Tes,’ then answer the following special issue:
“Was such treatment unreasonable? Answer yes or no. Answer: No.”
“Special Issue No. 8. Was such treatment of such a nature as to be calculated to cause the said J. E. Dodson, Jr., to withdraw from said school before the end of the term? Answer yes or no. _ Answer: Tes.”
“Special Issue No. 9. Was there a failure of consideration of the agreement on the part of the defendant to pay tuition to plaintiff in that the plaintiff failed to furnish the facilities and instructors of the hind represented by its representatives? Answer yes or no. Answer: No.”
“Special Issue No. 10. Was there a failure of consideration of the contract sued upon in that the plaintiff or its instructors failed to render the services to J. E. Dodson, Jr., agreed to be furnished by it? Answer yes or no. Answer: No.”

The appellee contends that there was evidence sustaining its pleading, which, being undisputed, authorized the court to pass on the question of indebtedness due and owing on the account pleaded, without submitting the issue to the jury. In other' words, the question of the amount of the indebtedness not being a disputed question, no finding of the jury was necessary.

The pleading sets out the items upon which appellee based its claim for recovery. While the appellee introduced no witnesses to testify to the correctness of the account, or to the reasonableness of the charge for the services rendered, or the value of the items furnished, and placed the appellant on the stand to testify for it, the evidence nowhere sustains the pleading of the appellee, and fails to furnish a basis for such judgment.

The appellant’s answer and cross-action admits that he enrolled his son in appellee’s school; that said son attended said school from the month of September, 1928, to the month of March, 1929; that he (appellant) paid the sum of $315 to the appellee at the time he enrolled his son in the school; he admits that he wrote the three letters introduced, addressed to an officer of the school, one of which was dated March 13,1929, which is as follows:

“J. E..Dodson, M. D.,
“201-2 Herring National Building,
“Vernon, Texas, March 13, 1929. “Maj. A. B. Bates, Sec’y. & Treas., Boon-ville, Mo.
“Dear Sir: I have been trying to make arrangements to send you some money. However, it seems as though I am going to fail for the present. As you know the finances of the country have been close. Crops short, work all shut down here, all the conditions bad. Now I do not think that it will he this way long, and just as quickly as I get it I will pay you. I do not have the money now. With best regards,
“Tours truly, J. E. Dodson.”
The second letter, which is as follows:
“March 18, 1929.
“Major A. B. Bates, Secty. and Treas., Boon- ■ ville, Mo.
“Dear Sir: Tour letter of March 16, 1929 rec’d this a. m. I regret very much that conditions, such as they are, make it impossible for me at present to pay you any money. I would gladly do so, but I do not have it at present and finances are just as bad here as they are all over the country. We are unable to collect anything at all and the little amount of cash that we get goes very quickly. I will pay you just as soon as I possibly can get the money. At present I will give you a note for the amount. This is the very best that I can do now and if this does not meet with your acceptance, then I shall be forced to accept the sending of the boy home. Whatever you decide to do. I want to assure you that you will be paid with interest. And should you not be willing to go on I suggest that you notify me at once that I may act on same and send for him as I do not think that a few days will make any difference, and yet it will take the few days expense off of you. And as to the financial standing and etc., you must realize that there are times when men with A-l rating are unable to borrow any money. I thank you for your kind suggestions.
“Very sincerely, J. E. Dodson.”
And the third letter is as follows:
“3 — 31st, 1929.
“A. M. Hitch, Supt., Kemper, Boonville, Mo. “Dear Sir: I'of course regret very much James leaving school, and especially the manner in which he was forced to adopt in leaving. However, since his arrival at home we have decided that under the circumstances everyone concerned would be better off for him to remain at home, at least the rest of this year. Tou will please for’d his personal belongings to me here and I shall greatly appreciate it, and he needs his clothing. Thanking you for past favors and assuring you that I intend in a short time to get you some money, I am,
“Yours truly, X E. Dodson.”

It will appear from these letters that the appellant entered his son in the appellee’s school and was aware of and acknowledged the fact that he was indebted to it. As to the amount of his debt to appellee, he testifies that he received a statement of -the account from the school, but did not pay it; that he paid them one payment. “That sheet which you have shows all that I have ever paid. I think that $614.60 was the amount that was rendered to me in that bill but I am not sure about that. * * * That is the bill they rendered me and at no time have I ever paid it.” Two of the above-quoted letters were written before the son left the school. The third was written after the son had returned home and after the appellant had full knowledge of the items and total sums owing on the account as stated in the account.

The appellant further- testified in relation to the promise to send them some money as follows: “However, I will state that I did not know how much I was going to get them at that time, whether I would get them any or not. At that time I did not know whether I owed them any money or not, that does not say whether I owed them or not, I said I would try and get them some. I was figuring on getting them some money because I didn’t know but what I might decide I owed them. I do not know that I owed them the amount in that statement, there was some questions about the bill that they had rendered ; I wanted to inquire about how much I owed, if any. At the time I enrolled my son in this school they did not tell me how much the tuition would be; I think they did but I am not sure they did; he did not give any definite reply, he was up to my house one night, he and Robert Lutz were there talking to my wife and myself and Tucker was the man’s name, and this question came up and he said that would be found in the catalog but I did not have a catalog. I suppose it is in the catalog but I did not have one at that time. That catalog which you have was not exhibited to me at that time, not for quite a while afterwards. * * * As to whether this bill is due or not, will state that I do not know a thing in the world about the bill. I do not know whether I paid this bill up or not, and I do- not know whether it is correct or not. My son doesn’t say that it is correct and I do not say it is correct. I would not say that the bill is correct, I do not know whether it is or is not correct.”

This proof is wholly lacking in establishing the account sued on. No express contract is shown to have been entered into. No definite understanding as to the terms upon which same was to be paid. There is no proof that the articles alleged to have been furnished to appellant’s son were furnished. Neither is there any proof that the charges for same were reasonable.

It was the duty of the appellee to introduce evidence to support its pleadings. The appellee sought in its petition for a recovery for tuition, goods, wares, and merchandise as same were reasonably worth, and there is no proof to sustain such pleading.

The statement of facts does not show that the verified account was ever introduced in evidence, but, if it had been offered, it would not have been admissible to sustain the allegations of appellant’s petition, for the reason that it is not such an account as is provable under article 3736, Revised Statutes of Texas. Such article provides: “When any action or defense is founded upon an open account, supported by the affidavit of the party, his agent or attorney, taken' before some officer authorized to administer oaths, to the effect that such account is, within the knowledge of affiant, Just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as pri-ma facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that such account is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust; provided, that when such counter affidavit shall be filed on the day of the trial, the party claiming under such verified account shall have the right to continue such cause until the next term of court; when he fails to file such affidavit, he shall not be permitted to deny the account, or any item therein as the case may be.”

The account sued on is not an “open,” account within the meaning of such statute.

“An ‘account’ has been defined to be ‘a detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.’ ” McCamant v. Batsell, 59 Tex. 863, 367.

“As used in the statutes of this state, in act referred to, we believe that the word ‘account’ is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing; and that it does not mean one or more isolated transactions rest-tag upon special contract.” McCamant v. Batsell, supra. See, also, McDaniel v. National Steam Laundry Co., 112 Tex. 54, 244 S.W. 135; Watson Co., Builders, v. Bleeker et al. (Tex. Civ. App.) 269 S. W. 147.

We therefore reverse the trial court’s judgment and remand the cause for a new trial.


author: COBBS, J.

text:
    CITY OF EDINBURG v. ELLIS.
    No. 8641.
    Court of Civil Appeals of Texas. San Antonio.
    July 15, 1931.
    Rehearing Denied Oct. 7, 1931.
    Montgomery, Hall & Taylor, of Edinburg, for appellant.
    Kelley, LOoney & Norvell and Geo. P. Brown, all of Edinburg, for appellee.
   COBBS, J.

This is a suit for $5,000 instituted by J. P. Ellis against the city " of Edinburg; said amount alleged to have arisen from the sale of gasoline and oil and , other automobile supplies. Warrants had been issued by the city for the amounts alleged to be due, and the eity sought the cancellation of the evidences of the debt on the ground of fraud on the part of appellee. The court instructed a verdict for $3,606.74, and judgment was rendered for that amount against the city. The city commissioners, who were joined in the suit against the city, were dismissed from the cause.

There were issued by the city in payment of the claim five warrants a sample of which is as follows:

‘‘The City of Edinburg No. 2453
“The City Treasurer Edinburg, Texas

All of the warrants were signed as the above, save one, which was signed by “W. R. Dyer, Mayor Pro Tern,” these having been offered in evidence and been identified by the plaintiff as being warrants he received from the city in payment for supplies furnished him. No evidence of the execution of this script was offered save that of the plaintiff to the effect that the signature of J. L. Edwards, city secretary, was correct and was his signature.

The defendant did not especially deny under oath the execution of the warrants, but only filed a general denial, which was on knowledge and belief.

Defendant filed responsive pleadings. We do not see how any fraud or invalid act was done or committed by the city in making the alleged illegal contract. The items contracted for and sold to the city for which it issued the notes show to be a necessity and things that the city must have.. There was nothing per se invalid in the contract apparent on its face, and there was nothing proven to render it invalid. That Commissioner Dyer was an agent of one of the beneficiaries selling the commodity in no sense rendered the transaction invalid. No contract was made by him for his sole-benefit. The contract was free from any elements of fraud or other vice,

City warrants speak for themselves. They were introduced in evidence, and their issuance and execution sufficiently proven and identified; they were not specially deniéd under oath.

Of course, everybody knows that the city does business like any other institution, and does not have to have a meeting to carry on its legal and usual business, or pass an ordinance every time to authorize the payment of a claim. It will be sufficient to purchase a commodity, and, if it has not on hand the money, then to authorize the purchase and thereafter approve it by issuing its paper as here is done.

As shown by the authorities, a warrant, like a promissory note, is a promise to pay. 15 C. J. 578; Leach v. Wilson County, 62 Tex. 331.

In the absence of a plea of non est factum, the power is presumed. Dale Oil & Refining Co. v. City of Tulia (Tex. Civ. App.) 25 S.W.(2d) 671. It is not denied, but specially admitted, that the warrants were over issued to the extent of 20 per cent, with the-honest intention to reimburse appellant for the loss of interest, etc.

As a city cannot discount its own paper or issue in excess of the true claim in excess of the value of the debt, therefore the 20 per cent, is unauthorized in law, and ap-pellee cannot have or recover that excess, and no recovery was had therefor.

On the trial of the case, appellee produced the account for $77.95, which he had delivered to appellant by signed slips for same; he did not have an itemized statement of same in his possession, but the slips were produced and they were identified by plaintiff and introduced in evidence. Terry et al. v. Little et al., 179 Ark. 954, 18 S.W.(2d) 916; Givens v. Pierson’s Adm’x, 167 Ky. 574, 181 S. W. 324, Ann. Cas. 1917C, 956.

We cannot see how the purchase of oil or gas from Dyer, if it was done under the circumstances of this case, constitutes any fraud or illegality. In order to taint a contract with fraud, some understanding between the party contracting and the member of the governing board from whom he purchases the product must be shown at the time the contract is entered into whereby the contractor is to use only the supplies of the commissioner or is to sell only those supplies to the municipality or that the commissioner is to receive some special benefit from the contract. In the instant case, no agreement is shown, and plaintiff did not purchase from the commissioner, but bought from an oil corporation of which the commissioner was local agent. Fredericks v. Borough of Wanaque, 95 N. J. Law, 165, 112 A. 309.

There is no question about the contract, as entered into, giving the city valuable property rights, which it appropriated, and now seeks to hold without any offer to return any money paid on the contract, but seeks to keep all after receiving its value upon the alleged ground of illegality, with no fraud on the part of the city shown, though it could purchase from any source and is not in any way obligated to purchase from Dyer, and it is not shown it purchased any gas from Dyer.

In regard to the complaint, that the •order in the decree is invalid because execution was ordered issued is immaterial, because no execution can be levied upon property belonging to the city in use in its governmental or municipal character. City of Clarendon v. Betts (Tex. Civ. App.) 174 S. W. 958; McQuillan on Municipal Corporation, § 2684.

Having fully considered all of appellant’s assignments and propositions, we have reached the conclusion that the judgment should be affirmed.


author: JACKSON, J.

text:
    BAER, STERNBERG & COHEN, Inc., et al. v. SNODGRASS.
    No. 3738.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 30, 1931.

      C. Huggins, of Sherman, for appellants.
    H. D. Payne, of Floydada, for appellee.
   JACKSON, J.

This is an appeal from a temporary restraining order issued in chambers by the district judge of Floyd county, Tex., on the petition of Glad Snodgrass, restraining the defendants Baer, Sternberg & Cohen, Inc., J. N. Phillips, justice of the peace, precinct No. 1, Grayson county, Tex., arid J. M. Wright, sheriff of Floyd county, Tex., from levying an execution upon and selling property of the plaintiff to satisfy a judgment obtained against him in said justice court of Grayson county, Tex., by the defendant Baer, Stern-berg & Cohen, Inc.

The petitioner alleges:

That he is a resident of Floyd county, Tex.; that the defendants Baer, Sternberg & Cohen, Inc., and J. N. Phillips are residents of Gray-son county, Tex., and that J. M. Wright is a resident of Floyd county, Tex. That J. N. Phillips is a duly qualified and acting justice of the peace in Grayson county, Tex., and J. M. Wright is the duly elected and qualified . sheriff of Floyd county, Tex.

That the defendant Baer, Sternberg & Cohen, Inc., filed suit against him in justice court, precinct No. 1, Grayson county, Tex., over which the defendant J. N. Phillips presides, asserting a false, fictitious, and fraudulent claim against the petitioner. That he was served with citation in said suit and filed his plea of privilege in due form, which defeated the jurisdiction of the justice of the peace. That thereafter Baer, Sternberg & Cohen, Inc., the plaintiff in said suit, filed a controverting affidavit to the plea of privilege, which controverting affidavit was false and untrue. That the petitioner’s plea of privilege was overruled, and judgment rendered against him for the sum of $14.30 and costs to the amount of $6.20.

That the amount in controversy is less than $20, and petitioner could neither appeal nor sue out a writ of certiorari, and had no way of relieving himself against the judgment in said court by any proceedings known to law. That Baer, Sternberg & Cohen, Inc., did not have a legal or equitable demand against the petitioner, the defendant in the suit in justice court, but that said claim was fraudulent and fictitious and had no existence in fact. That judgment was illegally rendered against him, and without the aid of a court of equity he will be mulcted in said illegal demand.

That the defendant J. N. Phillips, on the 30th day of July, 1931, illegally issued an execution on said judgment to Floyd county and placed it in the hands of the defendant J. M. Wright, sheriff of said county, who is threatening to levy such execution on plaintiff’s property, and, unless restrained, will sell some of plaintiff’s property and cloud the title thereto. That petitioner tenders the right to the defendant Baer, Sternberg & Cohen, Inc., to try their real cause herein to the end that the petitioner may have justice.

From the temporary restraining order issued on petitioner’s application, this appeal is prosecuted.

The only question presented for review is the sufficiency of the allegation of plaintiff’s petition to authorize the issuance of a temporary injunction.

It will be noted that the plaintiff alleges in his petition that suit was instituted against him and citation issued and served upon him. He does not allege that the judgment was void, but attacks the jurisdiction of the court because he filed a plea of privilege which he contends defeated the jurisdiction of the court to hear and determine the cause, for the reason that the controverting affidavit filed to his plea of privilege was false and untrue. He does not allege the contents of the controverting affidavit and that no testimony was heard upon the issue made by the plea of privilege and the controverting affidavit, nor, if testimony was heard, the substance of such' testimony.

“The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.” Gillis v. Rosenheimer et al., 64 Tex. 243.

This announcement of the law has been recognized as sound through the entire judicial history of this state. The allegation in the petition that the claim asserted by the defendant Baer, Sternberg & Cohen, Inc., was false, fictitious, and fraudulent is a eon-' elusion of tlie pleader, as no facts are alleged in support of tins conclusion. Whether the suit was on contract or for a tort does not appear in the petition. Pye et al. v. Wyatt (Tex. Civ. App.) 151 S. W. 1086.

Under sufficient allegations, the district court would have had jurisdiction to have granted the relief sought, as the judgment against the petitioner was for less than $20.

In Jennings et al. v. Shiner (Tex. Civ. App.) 43 S. W. 276, 277, writ of error denied, the court says: “We are of opinion that, if such a plea was properly interposed and established, there was a want of jurisdiction in the court that would warrant an injunction against the judgment. From the statement of facts, while it appears that the justice overruled the plea, it does not appear but that he did so upon testimony that warranted that result. In applying for an injunction on the ground relied on in this case, it was clearly necessary to aver and prove either that the evidence going to establish the plea was all in favor of it, or that the facts stated in the plea were admitted; for, if there was conflicting testimony heard on the issue, the decision by the justice on the facts should not be reviewed. He undoubtedly had power to hear and determine the evidence relating to the plea, and, if this was done upon testimony that would warrant finding against the plea, his jurisdiction over the defendant was properly and finally determined.”

In Coca Cola Co. v. Allison, 52 Tex. Civ. App. 54, 113 S. W. 308, 310, in passing upon the sufficiency of the allegations in the petition for an injunction to restrain a judgment rendered in justice court on an account for $8.25, the court says: “The petition alleges that the plea of privilege was presented to the justice and by him overruled. It further alleges that the petitioner presented his plea of privilege in the justice’s court, ‘and proved the truth of the contents of the same.’ It does not set out the evidence tending to sustain the plea and state that there was no other evidence, or negative the fact that plaintiff also introduced evidence tending to disprove the plea. The allegation that appellant proved the truth of the contents of its plea is at most a conclusion of the pleader. The evidence in support of the plea should have been set out as well as that, if any, tending to disprove the allegations therein. If there was evidence both ways on the plea, and the justice of the peace in overruling the same simply committed an error of law, then the judgment could not be enjoined.”

The plaintiff’s petition does not disclose whether the judgment in justice court was entered by default or upon a hearing in which he offered a defense. It does not disclose that he made a motion for rehearing after the judgment was rendered. He alleges no defense to the suit against him in justice court except his legal conclusion that the claim was false and fictitious. Odom v. McMahan, 67 Tex. 292, 3 S. W. 286; Galveston, H. & S. A. Ry. Co. v. Dowe, 70 Tex. 1, 6 S. W. 790; Mann V. Brown (Tex. Civ. App.) 201 S. W. 438.

In our opinion, the allegations in plaintiff’s petition were insufficient to authorize the issuance of the temporary injunction. The judgment is therefore reversed, and the injunction dissolved.


text:
    ANDERSON v. ALCUS.
    No. 2112.
    Oourt of Civil Appeals of Texas. Beaumont.
    Oct. 1, 1931.

      W. Owen Dailey and Lawrence H. Ken-ner, both of Houston, for appellant.
    G. W. Staton, of Houston, for appellee.
   O’QUINN, J.

Burke Alcus brought this suit against Christ Anderson to recover actual and exemplary damages in a large amount, $25,000, based upon certain language alleged to have been used by Anderson to Alcus at his (Al-cus’) place of business, in the hearing of others, in which it was alleged, among other things, that Anderson called Alcus a liar, a thief, and a highway robber.

The trial resulted in a judgment for appel-lee for $1 nominal damages and $500 exemplary damages. From .that judgment, Anderson has appealed.

The case was tried to a jury upon special issues, which, together with the answers thereto, were as follows:

“Special Issue No. 1. Do you find that on or about the 6th day of September, 1928 the defendant, Christ Anderson, in the presence and hearing of the plaintiff, Burke Alcus, used in substance the following language: ‘Get Out, Tou’re just a God Damned lying son-of-a-bitch, and if you don’t get out of here, right now, damned if I don’t kill you.’ Answer yes or no, as you find the fact to be.” Answer: “Yes.”
“Special Issue No. 2. Do you find that on the occasion inquired about the defendant, in the presence and hearing of the plaintiff, used to and concerning the plaintiff, in substance the following language: ‘You’re a dam dirty thieving son-of-a-bitch, and a highway robber, and you know it. Damned if I am not going to tell the whole world what a lying dirty thief and robber you are. Get out of this place or I’ll be damned if I don’t get my gun and kill you sure as I-Iell.’ Answer yes or no, as you find the fact to be.” Answer: “Yes.”
“Special Issue No. 3. Do you find that on or about the 6th day of September, 1928, the defendant, in the presence of Ed Baylotte and Ollie Smith, or in the presence of either of them, used to and concerning the plaintiff in substance the following language: ‘Alcus is a lying thief and robber. He stole my partition and didn’t ask me anything about it. He is just a God Dam thief, that’s all, and I’ll be damned if I don’t tell the whole world, even if I have to kill him to get him out of these premises. Damned if I don’t go down and have him and the whole damn bunch put in jail.’ Answer Yes or No, as you find the fact to be.” Answer: “Yes.”
“Any unlawful violence done the person of another with intent to injure him, whatever be the degree or means of violence used, is an assault and battery; and any attempt to commit a battery or any threatening gesture .showing within itself, or by words accompanying it, an immediate intention, coupled with ability to commit a battery, is an assault.
“When .an injury is caused by violence to the person, intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may 'be either bodily pain, constraint and sense of shame or other disagreeable emotion of the mind.
“By the term ‘Coupled with the ability to commit,’ is meant:
“(1) That the person making the assault must be in such position that if not prevented he may inflict a battery upon the person assailed; and
“(2) That he must be in such distance of the person so assailed as to make it within his power to commit a battery by the use of the means with which he attempted it.”
“Special Issue No. 4. Do you find that on September 6, 1928, the defendant committed an assault upon the plaintiff? Answer yes or no, as you find the facts to be.” Answer: “Yes.”
“If you have answered any of these special issues in the affirmative the law presumes an injury and you must find for the. plaintiff at least nominal damages.
“Malice is a state of mind to be found from the facts in the case and which characterize an unlawful act intentionally done without reasonable grounds for believing the act to be lawful.
“It is not necessary, in order to find malice, that hatred, dislike, spite or resentment exist, but it may be inferred from the doing of an unlawful act without reasonable ground for believing the same to be lawful.
“If you have answered any one of the special issues hereinbefore submitted in the affirmative and in that event only, then answer:
“Special Issue No. 5. What sum of money, if paid to the plaintiff in cash at this time, would fairly and adequately compensate him for the injuries, if any, directly and proximately caused by the wrongful conduct of the defendant, as inquired about in the pre-' ceding special issues, if any, taking into consideration as elements thereof, and only these, the following: Embarrassment and humiliation ; mental pain; fright; fear for his life and safety at the hands of Christ Anderson, if any. Answer, stating the amount, if any, in dollars and cents.” Answer: “None.”
“If you Have found the affirmative in answer to either of the special issues One, Two, Three and Four, you may inquire into the propriety of assessing what is known in law as exemplary or punitive damages. The law allows these by way of punishment for an injury, and for the purpose of deterring others from committing like offenses.”
“Special Issue No. 6. What sum of money, if any, do you find for the plaintiff for exemplary or punitive damages? Answer, stating the amount, if any, in dollars and cents.” Answer: “$500.00.”

On the return of the verdict, appellee, plaintiff, by written motion requested the court to enter judgment in his favor for “such sum as the court may deem wise and reasonable, as nominal damages, and for the sum of $500.00 as punitive damages, upon the findings of the jury in response to the special issues submitted to them.”

Appellant, defendant, in writing requested the court to enter judgment in his favor that plaintiff take nothing by his suit on the ground that the jury having found that plaintiff was not entitled to actual damages, no judgment could be rendered for exemplary damages. This motion was denied. The court then granted appellee’s motion for judgment, and held that the jury had disobeyed his instructions relative to their findings on the first four issues, in that he had instructed them that in the event they had answered any of said issues ¡in the affirmative, they “must find for the plaintiff at least nominal damages,” and the court then proceeded to find “nominal damages” for the plaintiff In the sum of $1, the judgment so reciting, and judgment for plaintiff in the sum of $500 for exemplary damages, together with' the costs of suit.

Appellee has filed no brief, and the principal contention of appellant is that the court erred in overruling his motion for judgment. The jury found that appellant, in the presence and hearing of others, called appel-lee a liar and a thief. Appellant, in his pleadings and testimony, denied that he did so. It was a question of fact, and the jury found against him. To charge one with being a thief is slanderous per se. Appellant does not contend to the contrary, but as the jury found that appellee was not entitled to recover any actual damages, he insists, because of this finding, appellee could not recover exemplary damages, and hence the court erred in not granting his motion for judgment. The rule has been long and well settled that where actual damages are not recovered, exemplary damages may not be given, and since no actual damages were shown and the jury found.against such, the court could not give judgment for the $500 exemplary damages. But we do not agree with appellant that because of the finding of the jury against actual damages, he (appellant) should have had judgment. The jury having found that appellant was guilty of uttering the slanderous words charged, then in law appellee, in the absence of a finding of actual damages in his favor, was entitled at least to nominal damages, which would have entitled him to judgment for the nominal damages found. See cases cited in Digest of Texas Reports, vol. 5, p. 839. Nominal damages are not actual damages, and will not support exemplary damages as will actual damages. There is a clear distinction in the definitions of “nominal,” “actual,” and “exemplary” damages. The words “actual damages” are used as synonymous with “compensatory damages”; that is, damages given as an equivalent for the injury done. “Exemplary damages” are damages imposed 'by way of punishment, and are given for that purpose, in addition to the compensation for a loss sustained. “Nominal damages” are a small' and trivial sum awarded for a technical injury due to a violation of some legal right, and as a consequence of' which some damages must be awarded to determine the right. 17 C. J. pp. 710-714. In numerous decisions of our own courts, it has been held that, on any invasion of a ri^ht, damages are inferred in law so as to justify the award of a nominal or trifling sum. So the trial court did not err in assessing and rendering judgment for nominal damages in favor of appellee. Flournoy v. Story (Tex. Civ. App.) 37 S.W.(2d) 272.

As it is our duty, under the statutes, to here render such judgment as the court below should have rendered, it follows from what we have said that that portion of the judgment granting appellee judgment for nominal damages in the sum of $1 should be and the same is here affirmed, and under article 2062, R. S. 1925, this being a suit for slander, it is adjudged that each party, appellee and appellant, shall pay the costs incurred by him in the trial court (Breen v. T. & P. R. R. Co., 50 Tex. 43), and that that portion of the judgment awarding appellee judgment for $500 as exemplary damages should be reversed and here rendered for appellant, which is done, and that appellant recover of appellee the costs incurred in this court, and it is accordingly so ordered.


text:
    FERGUSON v. HARRIS COUNTY.
    No. 2116.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 1, 1931.
    R. L. Henry, of Houston, for plaintiff in error.
    Andrews, Streetman, Logue & Mobley and 'Sam Streetman, all of Houston, for defendant in error.
   O’QUINN, J.

This appeal was taken from a judgment in the district court of Harris county, to the First Court of Civil Appeals at Galveston, and was by the Supreme Court duly transferred from said Court of Civil Appeals to this, the Ninth Court of Civil Appeals, and duly filed on the docket of this court January 12, 1931, and was by this court, on May 5,1931, set for submission on June 25, 1931. On June 18, 1931, the submission of said cause was postponed and reset for submission for September 24,1931.

The case is before us without briefs by either party, and there is no excuse offered why briefs have not been filed. It is well settled that the failure of parties to an appeal, without good cause being shown, to file briefs in accordance with the rules prescribed by the Supreme Court, authorizes the Court of Civil Appeals to dismiss the appeal without searching the record for fundamental error. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.(2d) 811. Accordingly, this appeal is dismissed.


author: PER CURIAM.

text:
    MARSHBURN v. WALKER, Land Com’r, et al.
    Motion No. 9857.
    Supreme Court of Texas.
    Oct. 19, 1931.
    R. J. Randolph, of Austin, for relator.
   PER CURIAM.

This is an application to file petition for mandamus by L. H. Marshburn, against J. H. Walker, land commissioner of Texas, as respondent, and Mealey Johnson, a feme sole, and certain other parties as co-respondents. The petition seeks to compel Walker, commissioner, to cancel an award of the land in % question here to Mealey Johnson, and to approve relator’s field notes, or have same corrected, if incorrect, and then approve same, and thereafter fix a minimum price as provided by law, in order that relator may proceed to exercise his preference right to purchase a mineral lease from the state to the tract of land in question here, which consists of 18.71 acres in Rusk county-, Tex. The record in the case shows that patent to this land has issued from the state of Texas to Mealey Johnson. This patent is an absolute bar to any relief in this character of proceeding. Guenther v. Robison, 118 Tex. 485, 17 S.W.(2d) 765, 32 S.W.(2d) 640, and authorities there cited.

The application to file petition for mandamus is refused.


author: PER CURIAM. ’

text:
    DAVIS et al. v. MECKEL.
    No. 18378.
    Supreme Oourt of Texas.
    Oct. 14, 1931.
    J. A. Thomas,-Lloyd Kerr, and Louis D. Gayer, all of San Angelo, for plaintiffs in error. . .
    L. W. Elliott and Frank O. Ray, both of Sonora, and Morriss & ■ Morriss and Reed Cozart, all of San Antonio, for defendant in error.
   PER CURIAM. ’

In this case the majority of the Court of Civil Appeals have said in their opinion that there was no evidence to support the verdict of the jury. However, the order ■ actually entered was one of reversal and remand, instead of rendition. Under the practice which governs this court, that type of order is equivalent to á holding merely, that the evidence was insufficient to support fhe verdict of the jury. Under this state of the record, this court is without jurisdiction to grant the writ of error, for the reason that the question of the sufficiency of the evidence is one in which the judgment of the Court of Civil Appeals is final. - For- the reasons stated, the application for writ of error is dismissed for want of jurisdiction. Tweed v. Western Union Telegraph Co., 107 Tex. 255, 166 S. W. 696, 177 S. W. 957; Marshburn v. Stewart, 113 Tex. 519, 254 S. W..942, 260 S. W. 565.


author: DEDDY, J. OURETON, C. J.

text:
    ZACHARY et al. v. CITY OF UVALDE.
    No. 1288 — 5761.
    Commission of Appeals of Texas, Section B.
    Oct. 14, 1931.

      Atlas Jones, of Uvalde, for plaintiffs in error.
   DEDDY, J.

This was a suit by defendant in error to recover from plaintiffs in error certain delinquent taxes with a foreclosure of the tax lien.

The principal ground upon which plaintiffs in error sought to defeat a recovery of the taxes alleged to be due was that the board of equalization fixed the value of their property without investigation and without accurate knowledge as to the condition of said property and arbitrarily and unfairly assessed it above its true value.

At the dose of the evidence the trial court peremptorily instructed the jury to render a verdict for the defendant' in error without specifying what the amount of the verdict should be and without directing a finding foreclosing the tax lien. In obedience to this instruction, the jury rendered a general verdict reading as follows: “We, the jury, find for the plaintiff, the City of Uvalde.”

Based upon this verdict the court rendered judgment for defendant in error against the plaintiff in error for the amount of the delinquent taxes shown to be due, with penalties and interest, and also foreclosed the tax lien.

The writ of error was granted in this case upon plaintiff in error’s assignment, complaining that article 7329, R. S. 1925, violates the provisions of article 8, § 1, of the Constitution of this state, in so far as its terms be construed to prohibit them from making the defense that their property had been unequally and unfairly valued by the city’s board of equalization.

In our opinion plaintiffs in error are in no position to invoke a ruling upon the question as to the invalidity of the statute in the respect complained of. It does not appear that they have been in any way deprived of making the defense pleaded against the recovery of delinquent taxes. Upon the trial of this case they offered no proof showing or tending to show that their property had been unequally, unfairly, or arbitrarily valued by the board of equalization. The record is absolutely devoid of any evidence showing what the true market value of their .property was, or that the value placed upon it by the board of equalization, exceeded its fair value, or that such value was not in line with the values placed upon other similar property.

The valuation placed upon plaintiffs in error’s property cannot he set aside merely because at the time it was made the board of equalization made no investigation as to the value of the property. Before plaintiffs in error will be beard to complain of the aetion of the board of equalization, they must show that their property has been valued unfairly or in excess of the value of other property similarly situated. No such showing was made by the proof offered by them. It was merely shown that when they were notified of the raise in valuation proposed to be made on their property, they filed through their attorney a written protest and asked the board to investigate the property and fix a fair value thereon. In the absence of any showing to the contrary, the presumption will be indulged that the board of equalization discharged its duty by placing a fair value upon plaintiffs in error’s property.

There is no merit in plaintiffs in error’s complaint that no recovery of the delinquent taxes could be had against them in the absence of proof showing that the delinquent tax list, including this property, had been published as required by law prior to the bringing of this suit. While the statute requires the publication of such delinquent tax list, it is expressly provided that the failure to publish the same shall constitute no defense to a suit for taxes due. Article 7323, R. S. 1925.

If there was any error in sustaining the exception of defendant in error to that portion of plaintiffs in error’s answer pleading a tender of the taxes due, such error is harmless in the light of the subsequent proof showing that the tender made was not for the correct amount of the taxes shown to be due.

It was not necessary for the defendant in error to prove that the persons who acted as members of its board of equalization had been duly appointed and qualified in accordance with the laws of this state. It was undisputed that the persons named by the city council, as members of the board of equalization, were purporting to act as such. Under such circumstances they were de facto officers and their legal qualifications to act as such will be duly presumed in this character of proceeding. Nalle v. City of Austin (Tex. Civ. App.) 56 S. W. 950 (writ ref.); Martin v. Grandview Independent School District (Tex. Civ. App.) 266 S. W. 607.

Neither was it essential that the city adopt an ordinance providing for a lien to secure the payment of taxes lawfully levied by it. Article 1063, R. S. 1925, made available to defendant in error all of the provisions of chapter 8, title' 122, of the Revised Statutes (Vernon’s Ann. Civ. St. art. 7245 et seq.). Articles 7269 and 7272, of this chapter, fix a lion to secure the payment of taxes. In addition to this, article 7343 makes available to defendant in errpr all of the laws of this state providing for the collection of delinquent taxes, and article 7320 of such laws fixes a lien to secure the payment of these taxes. There existed a statutory lien to secure the payment of all delinquent taxes owing to defendant in error; hence it was unnecessary that it make provision by ordinance for such a lien.

Finally, it is insisted that the general verdict rendered by the jury against the plaintiff in 'error, without specifying -any amount and without foreclosing the tax lien, was insufficient to sustain the judgment of the trial court against them in the sum of ⅝;227, interest, penalties, and a foreclosure of the tax lien.

Inasmuch as the defendant in error was entitled, under the undisputed evidence, to a judgment in the amount found by the court with a foreclosure of the statutory lien, it is immaterial whether the verdict rendered under direction of the court was sufficient to sustain the judgment of the court. Under the circumstances it was the duty of the court to render the judgment demanded by the undisputed evidence. It would have been a vain and useless thing for the trial court to have set aside its judgment because of an irregular verdict rendered in obedience to a peremptory instruction, when no other judgment than that which was entered could have been properly rendered. It has often been held that where there is no issuable fact to be submitted for the determination of the jury the court may, if it desires, withdraw the case from the jury and render such judgment as is proper. This being true, we can perceive no valid reason why the court in this case could not properly render the judgment demanded by the undisputed evidence even if it be conceded that the verdict which the court had directed the jury to return was in fact insufficient upon which to base a judgment.

The trial court rendered the only judgment that could have been rendered under the facts proven. We therefore recommend that the judgments of the Court of Civil Appeals and of the trial court be affirmed.

OURETON, C. J.

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


author: CHRISTIAN, J.

text:
    HENDRIX v. STATE.
    No. 14508.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing' Denied Oct. 21, 1931.
    H. E. Lobdell, of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for four years.

The record is before us without a statement of facts or bills of exception. No question is presented for review. .

The trial court, in pronouncing sentence, failed to make application of the Indeterminate Sentence Law (Vernon’s Ann. Code Cr. Proc. art. 775). The sentence is reformed to show that appellant is condemned to confinement in the penitentiary for not less than two nor more than four years.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: LATTIMORE, J. MORROW, P. J.

text:
    JOHNSON v. STATE.
    No. 14375.
    Court- of Criminal Appeals of Texas.
    June 17, 1931.
    .Rehearing Denied Oct. 21, 1931.
    David E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for receiving and concealing stolen property; punishment, two years in the penitentiary.

The record appears in an unfortunate condition, disclosing quite a controversy. The court declined to approve the statement of facts prepared by appellant’s counsel, and filed one of his own. Appellant’s counsel was dissatisfied with that filed by the court, and filed one of his own. The court declined to approve the single bill of exception prepared by appellant, and filed his own bill. Appellant was dissatisfied with the court’s bill, and attempts to file a bystanders’ bill. The whole controversy revolves around the statement of facts and some exculpatory statements claimed by appellant to have been made by witnesses which do not appear in the statement of facts prepared by the court. We have examined all of the documents, but fail to see how the contention between the trial court and counsel for appellant could affect the decision of this case. Appellant pleaded guilty, thereby admitting all of the material facts alleged in the indictment. Upon his piea of guilty, the jury found him guilty, and gave him the lowest penalty for the offense charged. They could have done no more for him had the proceedings been as contended by appellant’s counsel in his controversy with the trial court.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

It- appears that counsel for the state and the accused could not agree upon a statement of facts. Appellant’s counsel presented to the trial judge a statement of facts which the judge declined to approve, 'but prepared and filed his own statement of facts. Appellant excepted to the action of the court in the procedure mentioned. The court declined to approve the appellant’s bill of exception, and prepared his own bill, in which it is stated that there was presented to him a statement of facts which had not been approved by state’s counsel; that he did not approve it, but prepared and filed one of his own. In a bystanders’ bill it is stated that the testimony heard upon the trial was not taken down by the court stenographer, and that in the preparation of the statement of facts it was necessary to rely upon memory; that in the statement of facts prepared by the court there is omitted certain testimony of an exculpatory effect, namely, the testimony of Officer Ootham to the effect that the appellant had at first disclaimed any knowledge of the whereabouts of the stolen goods, and later stated in substance that Empress Lovely (who had been convicted for stealing the goods) had placed them in a space rented from the appellant, and that he did not know that they were stolen property.. From the statement of facts as filed by the court, it is shown that Officer Ootham testified that, at the time of learning of the theft of the goods, he had information implicating Empress Lovely. He later arrested Willie Johnson, who at first denied knowledge of the whereabouts of the stolen goods, but afterwards stated in substance that the goods had been placed in his store by Empress Lovely. The goods were found in the appellant’s store.

Another witness testified that the appellant and Empress Lovely were co-actors in the theft.

The slight difference in the two statements of facts seems of little moment. The evidence, aside from the appellant’s confession, is quite sufficient to show his guilt. His plea of guilty admitted his guilt. See Vernon’s Ann. Tex. C. C. P. vol. 1, art. 501, p. 390; Gipson v. State, 86 Tex. Or. R. 364, 216 S. W. 870; Crumbley v. State, 103 Tex. Cr. R. 391, 280 S. W. 1064. The verdict rendered was for the lowest penalty.

íhe motion for rehearing is overruled.