text:
    REED v. STATE.
    No. 13826.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    George L. Huffman, of Marshall,' for appellant.
    John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of cattle; the punishment, confinement in the penitentiary for three years.

John Murry and appellant lived on adjoining places. Murry lost two head of cattle. Upon making a search for them, he came up from the back of appellant’s premises and saw appellant in the doorway of one of his stables. 1-Ie asked appellant if he had seen his cattle. Appellant replied that he had seen them down on the railroad track. Upon looking into the stable, Murry saw his two head of cattle. They had been killed. Appellant testified that one Elbertis Eisher, who ran a butcher shop, brought the cattle to his place and that he had helped him kill them. He said that he had nothing to do with the original taking of the cattle. It appears that Fisher was later convicted for the theft of the cattle. Prior to his conviction, he and appellant paid Murry $50 each for the two head of cattle. This settlement was made after Murry had found his property in the possession of appellant. Witnesses who were present at the time the settlement was made, ■as well as Murry, the injured party, testified that appellant admitted that he had stolen one of the cattle. Appellant denied making such admission and testified that he paid Murry to save a prosecution, inasmuch as he was afraid. His testimony was to the further' effect that Fisher ran away from the stable on the occasion Murry discovered the cattle.

It is recited in bill of exception No. 4 that counsel for appellant, in his argument to the jury, referred to the fact that A. J. McLynn and wife were'present when appellant was alleged to have admitted that he stole one of the cattle, and that notwithstanding the fact that they had been summoned by the state, they were not placed on the witness stand. It is further recited in the bill that the county attorney, in his closing argument, in answer to appellant’s argument, replied that if said witnesses had been placed on the stand their testimony would have been very damaging to appellant. The bill further reflects the fact that the county attorney challenged counsel for appellant to agree that the proceedings be interrupted and that said parties be placed on the stand. Objection was timely interposed. Appellant submitted his special charge in writing, wherein the jury would have been advised not to consider the argument of the county attorney for any purpose. The court overruled the objection, and declined to give the charge. The qualification appended to the bill of exception reads as follows: “The argument complained of was made by the state’s attorney, but same was provoked and invited by the argument of defendant’s counsel as above set out and made in answer thereto.”

Bill of exception No. 5 recites that the county attorney, in his closing argument to the jury, stated: “If the witnesses A. J. Mc-Lynn and his wife were to testify in this case the testimony of these witnesses would seal the doom of this defendant.” Objection to the argument was timely interposed, and a special charge in writing requested by appellant, wherein the jury would have been advised not to consider the argument of the county attorney for any purpose. The court overruled the objection and declined to give the charge. The bill is qualified in the same manner as bill of exception No. 4.

We are constrained to hold that the argument ■ reflected by the foregoing bills of exception necessitates a reversal. We do not understand that the argument made by appellant’s counsel warranted the county attorney in stating to the jury that the testimony of the witnesses would have been damaging to appellant, and that if they had taken the stand their testimony would have sealed his doom. The effect of such statements was to advise the jury that the witnesses had stated to the county attorney that appellant admitted in their presence that he had stolen one ■of the cattle. In short, the county attorney, in argument, supplied testimony upon a controverted issue. Even if he had been a witness, he could not have given such testimony. The state earnestly insists that under - the facts presented by the record, the argument does not present reversible error. It is said In the brief that the testimony of guilt is ■plain, and, further, it is urged that the holding of this court to the effect that an argument should not be held reversible error, •except in extreme cases where it is manifestly improper, harmful and prejudicial, or where a mandatory provision of the statute is violated or some new and harmful fact injected in the case, should prevent a reversal of this case. Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548. It is true that the evidence .of guilt is amply sufficient. It is also true that appellant denied his guilt, and testified that he had not admitted in the presence of the witnesses that he had committed the offense. Applying the test announced in Vineyard v. State, supra, we are tinable to escape the conclusion that the argument was improper, harmful, and.prejudicial. The statement tended to support and corroborate the testimony of the witnesses touching appellant’s admission of guilt. The court made no attempt to withdraw its effect. It went to the jury to be considered by them in determining the issue of guilt. In Ballard v. State, 97 Tex. Cr. R. 455, 262 S. W. 85, the appellant’s counsel commented on the failure of the state to prove by one of its witnesses that deceased was not drunk a few minutes before the homicide. Replying to such comment, state’s counsel used language as follows:

“You asked why we did not prove the deceased was not drunk by the witness Bull. I say to you now, sir, we will prove it now. lie will swear it all right. If you will agree to it, we will prove it now. Will you agree?”

In holding that the argument constituted reversible error, Judge Morrow used language as follows:

“We think that in so doing he gave to the jury his own testimony, hearsay in its nature, touching what he might have proved by Bull. The state, having used Bull as a witness and proved by him relations with the deceased which suggests that he might have been able to throw light upon the condition of the deceased immediately before the homicide, refrained from asking Bull whether or not the deceased was drunk. The failure to make this inquiry was a legitimate subject of comment by counsel for the appellant. The declarations by the state’s counsel as to what he could have proved by Bull was an improper means of meeting a proper argument of his adversary.”

The judgment is reversed and the cause remanded.

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.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    BOULWARE et al. v. KEMPNER.
    No. 1005.
    Court of Civil Appeals of Texas. Waco.
    Feb. 12, 1931.
    Rehearing Denied March 12, 1931.

      James T. Ryan, of Centerville, and R. W. Dean, of Navasota, for appellants.
    M. L. Bennett, of Normangee, Carl Harper, of Madisonville, and Seale & Seale, of Center-ville, for appellee.
   ALEXANDER, J.

This was a suit in trespass to try title in the district court of Leon county, Tex., by Mrs.. Eliza Kempner against Gilbert Gresham and the heirs of Leroy Boulware. A trial before the court without a jury resulted in a judgment for the plaintiff. The defendants, the Boulware heirs, have appealed.

The land in question was patented to Leroy Boulware. The appellants are his heirs. The appellee established title to the land from the heirs of A. H. Wier and sought to establish by circumstances the existence of a deed from the heirs of Leroy Boulware by their attorney in fact to A. H. Wier. The evidence shows that in 1883 the heirs of Leroy Boul-ware executed powers of attorney to Norman G. Kittrell, empowering him to take charge of and sell and convey the lands belonging to them in Leon county and to adjust all claims concerning the same. At that time the Boulware heirs owned several hundred acres of land in Leon county. The attorney in fact, after his appointment, employed a competent surveyor who went upon the land, surveyed and platted the same, and 'fixed the value of the respective tracts. It seems that the attorney in fact was to bear the expense of surveying and partitioning the land and was to receive a part of the land as his compensation. The attorney in fact executed deeds to certain outsiders to various tracts of the land belonging to said heirs and then executed partition deeds by which the remainder of the land belonging to them was partitioned among said heirs. The land in question was not deeded to any of the heirs. In 1S87 T. J. Wier and Kate Wier executed a deed to J. W. Smart and E. G. Smith, by which the grantors “as the heirs of the late A. H. Wier” conveyed the land in question, and after describing the land further recited, “and the same described in a deed to A. I-I. Wier from Norman G. Kittrell as agent of the heirs of Leroy Boulware.” The appellants objected to the introduction of the above-quoted portion of this deed because the same was a self-serving and hearsay statement and an attempt to establish the existence of a deed supposed to have been executed by said attorney in fact by hearsay evidence and because the appellants had filed an affidavit to the effect that if such deed ever existed the same was a forgery.

The existence of the deed from the attorney in fact to A. H. Wier was necessary to establish appellee’s chain of title to the land in question. The recitations in the above deed were hearsay and self-serving and ordinarily would not be admissible, and if standing alone, would not be sufficient to establish the existence of the missing conveyance. But where it is sought to establish the execution of deeds to land, the originals of which have been lost or destroyed without being recorded, the courts are very liberal in the admission of all the surrounding circumstances that would tend to establish the existence of such deeds. This is especially true where it is an ancient title paper, the existence of which is sought to be' established. If this were not true, many honest titles would be defeated. Ordinarily the courts will admit evidence of all the surrounding circumstances, both before and after the date on which such lost instrument is supposed to have been executed for the purpose of determining the existence or nonexistence of such an instrument. In such a case, by reason of the law of necessity, the rule against self-serving declarations is relaxed, and such declarations, when they are themselves found in ancient documents, will be admitted as a circumstance to establish the existence of the lost instrument. Frugin v. Trueheart, 48 Tex. Civ. App. 513, 106 S. W. 736 (writ refused) ; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033 (writ refused); Magee v. Paul, 110 Tex. 478, 221 S. W. 254; Hirsch v. Patton, 49 Tex. Civ. App. 499, 108 S. W. 1015; Sandmeyer v. Dolijsi (Tex. Civ. App.) 203 S. W. 113.

However, such declarations unsupported by other evidence will not be sufficient to establish the existence of such lost instrument. There must be other supporting circumstances. Were the circumstances in this case sufficient to establish the existence of such a deed? The declaration that the land was the same as the land deeded by Norman G. Kittrell as agent of the Boulware heirs to A. H. Wier was contained in a deed dated in 1887, nearly forty years before this litigation was begun. It appears that Norman G. Kittrell actually had the authority to execute such a deed. He executed similar deeds to other parties. It was necessary for him to execute such deeds in order to compensate himself and to defray the expenses of the partition. He partitioned among the Boul-ware heirs the remainder of the land belonging to them in Leon county, but did not deed to any of them the land in question. They took charge of and conveyed the land set apart to them but do not appear to have complained of not having received any part of ■the land under litigation. The land in question constituted a part of a larger tract of five hundred acres. In 1888 a partition suit was filed in Leon county by M. Lasker et al. against Smart & Smith, by which the land in question was set aside to Smart & Smith, appellee’s remote grantors. In 1890 the land was conveyed by Smart & Smith to Leon County Co-operative Association, and in 1899 said association conveyed it to John W. Walt-mon. Waltmon conveyed the land to Eliza Kempner in 1906. It is true that there is no evidence that either Smart & Smith, or their grantees, took actual possession of the land under the deed in question, but actual possession under such a deed does not appear to be indispensable to establish the existence of such a deed. Garner v. Lasker, 71 Tex. 431, 9 S. W. 332; Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064. There is no evidence as to who paid the taxes from 1883 to 1907, but the record does show that the Boulware heirs did not pay such taxes. Mrs. Kempner, the appellee, began to pay the taxes in 1907 and continued to pay them until 1918. Her grantee, Gresham, paid the taxes from 191S until 1921, when this litigation was first begun. It will thus be seen that from 1883 ' to 1921, for a period of approximately thirty-eight years, appellants asserted no claim to the property and paid no taxes thereon. They stood by and allowed the land to be partitioned among strangers and to be conveyed from one party to another for a period of thirty-eight years and allowed the appellee and her grantee to pay the taxes for fourteen years without making any complaint or asserting any ownership to the property. The trial court necessarily found the existence of the missing deed; otherwise, the judgment could not have been for the appellee. We think the excerpt from the deed in question was admissible and that the evidence taken as a whole was sufficient- to show the existence of the missing deed from Norman G. Kittrell as agent of the Boulware heirs to A'. H. Wier.

In 1917 the appellee Eliza Kempner conveyed the land in question to Gilbert Gresham. In 1921 the appellants, in a suit against Gresham, recovered the title to the land. In the instant case the appellants plead the judgment recovered by them against Gresham as res adjudicata and they now insist that Mrs. Kempner by the deed in question conveyed to Gresham her entire interest in the land and that since appellants recovered the land from her grantee Gresham, Mrs. Kempner now has no right to recover herein. The conveyance from Mrs. Kempner to Gresham was by warranty deed in which it was recited that a part of the consideration for the conveyance was the execution by Gresham to Mrs. Kempner of one note of even date therewith in the sum of $500. In this deed no vendor’s lien was retained. However, the note executed by Gresham, payable to Mrs. Kempner and described in the deed, expressly recited that a vendor’s lien was retained on the land to secure the payment of the note. Under such circumstances the note and deed must be construed together as one instrument. Since the note retained tlie vendor’s lion on the land, the superior title remained in Mrs. Kempner and she had such title as would support an action in trespass to try-title. McKelvain v. Allen, 58 Tex. 383; Lundy v. Pierson, 67 Tex. 233, 2 S. W. 737; Miller v. Linguist (Tex. Civ. App.) 141 S. W. 170 (writ refused); Buckley v. Runge (Tex. Civ. App.) 136 S. W. 533 (writ refused); Beckham v. Scott (Tex. Civ. App.) 142 S. W. 80.

Mrs. Kempner was not a party to the suit by the Boulware heirs against Gresham in 1921 and the judgment in that case was therefore not binding on her. It is true that where a grantee buys land during the pendency of a suit for the title thereto a judgment against his grantor will be binding on him. This is made so by statute. Revised Statutes, artcle 7391. But where a grantor sells land and retains the superior title a judgment against the grantee for the title to the land will not be binding on the grantor unless he is made a party to the suit. McKelvain v. Allen, 58 Tex. 383; Looney v. Simpson (Tex. Civ. App.) 25 S. W. 476; Id., 87 Tex. 112, 26 S. W. 1065; Foster v. Andrews, 4 Tex. Civ. App. 429, 23 S. W. 610, 631. The Boulware heirs are not in the position of one who has purchased land for value without notice of the claim of a prior vendor. They acquired no greater right against Mrs. Kempner by virtue of the judgment recovered by them against Gresham than Gresham had against Mrs. Kempner. As to him, Mrs. Kempner had the right to maintain trespass ■to try title for the land unless he paid the note in question.

The note executed by Gresham to Mrs. Kempner had a special provision indorsed thereon by which it was provided that in the event of Gresham’s title to the property was attacked or defeated by adverse claims before the maturity of the note, the note should become null and void, provided Gresham re-deeded the property to Mrs. Kempner. We do not think the attack made by the Boul-ware heirs on Gresham’s right to the title and possession of the property had the effect of destroying Mrs. Kempner’s superior title to the property. This provision merely had the effect to relieve Gresham from personal liability on the note in the event his title to the land was attacked or defeated.

Appellants objected to the introduction of the deed from Leon County Co-operative Association to John W. Waltmon. The deed appears to have been executed in the name of the association by its president and secretary. The objection was that there was no resolution from the board of directors of the association authorizing the president and secretary to convey the property and further because the seal of the corporation was not impressed on the deed. These objections were overruled. The deed in question was not copied in full in the statement of facts, only the substance thereof being given. There is therefore nothing to show that the deed did not contain the seal of the corporation. The fact that the trial court overruled the objection would raise the presumption that the deed contained the seal of the corporation, and the objection therefore was not well founded. The deed having been executed by the proper officers of the corporation, it carries with it prima facie' authority from the board of directors for its execution without the necessity of showing a resolution from the board of directors. Smith v. Allbright (Tex. Civ. App.) 261 S. W. 461, par. 15; Texas Auto Co. v. Arbetter (Tex. Civ. App.) 1 S.W.(2d) 334.

This disposes of all the assignments of error of the appellants. The judgment of the trial court is therefore affirmed.


author: CHRISTIAN, J.

text:
    PEREZ v. STATE.
    No. 14234.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Tom Gambrell, of Lockhart, and Ben F. Cone, of Luling, 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 fifty years.

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

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: WILLSON, C. J.

text:
    BALDWIN v. CHAMBERS et al.
    No. 3947.
    Court of Civil Appeals of Texas. Texarkana
    Feb. 19, 1931.
    Edgar Wright, of Paris, for plaintiff in error.
    Robbins & Bailey, of Clarksville, for defendants in error.
   WILLSON, C. J.

(after stating the case as above).

The effect of the holding of the Commission of Appeals in Chambers v. Baldwin, 282 S. W. 793, that the provision set out in the statement above of the act of the Legislature creating the One Hundred and Second judicial district was void because unconstitutional, and that, defendant in error Chambers and not plaintiff in error, Baldwin, was entitled to represent the state in the prosecution of criminal cases in the district court of Red River county, was to determine that said Chambers, as county attorney of Red River county, was entitled to demand and receive the fees paid by the state to Baldwin, as district attorney of the Sixth judicial district, for prosecuting such cases. Appellant’s contention to the contrary we think is not tenable on any of the grounds urged by him. It conclusively appeared from the evidence heard at the trial that such fees aggregated $1,192, the amount of the judgment in appellee’s favor. The admission in evidence of the certified (photostatic) copies of the accounts and treasury warrants covering the fees in question issued to Baldwin was authorized by article 3722, R. S. 1925. Zettlemeyer v. Shuler, 52 Tex. Civ. App. 648, 115 S. W. 78, 79. On the ease made by the record we do not think any other judgment than the one rendered properly could have been rendered by the court below.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    SMITH v. STATE.
    No. 13979.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    R. C. Musslewhite, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing Intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

This case must be reversed for the following reasons: First, the trial court told the jury in his charge that the possession of more than a quart of intoxicating liquor was prima facie evidence that same was possessed for the purpose of sale, but failed to define what was meant by prima facie evidence. The failure was excepted to. Caldwell v. State, 101 Tex. Cr. 76, 273 S. W. 608; Ayres v. State, 21 Tex. App. 399, 17 S. W. 253.

The court erred in admitting, over objection, testimony from several witnesses as to facts discovered by a search of the premises of appellant’s grandmother, at which house he lived, under a search warrant. The only description of the premises to be searched, found in said warrant, was “the home or private residence of Mrs. (or Grandma) Smith.” This was most indefinite, and certainly not sufficient. Whether said residence was in any city or town, or on any road or street, or near any public place or natural object, or in any direction or distance from same, is left wholly uncertain.

The facts in evidence are such as to leave us in serious doubt as to their sufficiency. The affidavit averred that Mrs. H. G. Loftin had in her possession and control and kept for sale spirituous, vinous, and malt liquor capable of producing intoxication, at the home of Mrs. (or Grandma) Smith on Pole avenue, near the private residence of E. A. Mantooth about eight-tenths of a mile from the courthouse in the town of Lufkin, Angelina county, Tex. The search warrant directed the search of the house or private residence of Grandma Smith — as above stated, a location wholly undescribed. The testimony, of the'parties who searched the premises indicated the presence of four or five a’dults, one of whom was appellant’s sister, shown by testimony to have been sick in bed. The state introduced four witnesses’ who testified that, upon a search of the-residence of Grandma Smith a gallon of whisky and about a half pint of whisky and some empty bottles were found. None of it seems to have been found on the person of appellant, nor, as far as we can tell from the testimony, in his possession more than in possession of the other adults who were present at the time of the search. The testimony showed that the appellant did not own the place; that it belonged either to his mother or his grandmother. There is no testimony showing that appellant made the liquor found, or that he carried it to said premises, or that he asserted any ownership of it, or that it was found in his room, or in any way to individualize the possession of same. As stated above, we have such serious doubt as to the sufficiency of the evidence that we would not be inclined to let this conviction stand upon the testimony even if the other questions above indicated did not call for a reversal of the case.

The judgment is reversed, and the cause is remanded.


author: SELLERS, J.

text:
    SHAW, Banking Com’r, v. ROGERS et al.
    No. 3958.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 19, 1931.
    Rehearing Denied March 5, 1931.
    McKinney & Berry, of Cooper, for appellant.
    Ben D. Clower, of Cooper, and J. K. Brim, of Sulphur Springs, for appellees.
   SELLERS, J.

This suit was instituted by James Shaw, banking commissioner of Texas, against Thelma Rogers et al., to enforce an assessment by the banking commissioner .upon thirty-five shares of stock in the Cooper State Bank alleged to have been owned and transferred by J. F. Lindley, within twelve months of the time the Cooper bank closed, to his daughter, Thelma Rogers. The case was tried to a jury, and upon the close of the testimony of both plaintiff and defendants the court instructed the jury to return a verdict in favor of the banking commissioner against Thelma Rogers as the owner of the stock at the time the bank closed, and in favor of the defendant J. F. Lindley that the plaintiff take nothing by the suit against him. The plaintiff excepted to the court’s action in instructing a verdict in favor of J. F. Lindley and has duly prosecuted this appeal, and the trial court’s action is before this court for review.

On March 26, 1926, the Cooper State Bank purchased the First State Bank of Klondike, Tex., the contract of purchase being as follows:

“State of Texas, County of Delta
“This memorandum of agreement between Cooper State Bank, Cooper, Texas, a banking corporation organized under the laws of the State of Texas, by and through its president thereunto duly authorized and First State Bank, Klondike, Texas, a banking corporation organized under the laws of the State of Texas, by and through its president thereunto duly authorized, witnesseth:
“1. Cooper State Bank hereby agrees to pay First State Bank, Klondike, the sum of Thirty Five Thousand Dollars, ($35,000.00), in cash, and assume and agrees to pay all deposits of this date in First State Bank, Klondike, as shown by the books of said'bank, and agrees to pay all outstanding Cashier’s Checks, 'and Certificates of Deposit issued by First State Bank, Klondike, including individual deposits and deposits due to banks, also all bills.payable. It is expressly understood, however, that the Cooper State Bank assumes no liability to the stockholders of the First State Bank, Klondike, as such.
“2. In consideration of the premises, and of Ten Dollars, ($10.00) to ns in hand paid by said Oooper State Bank, the receipt of which is hereby acknowledged, the Eirst State Bank, Klondike, hereby transfers and assigns to said Oooper State Bank all of the assets of said First State Bank, Klondike, such assets including, but not limited to the following: (Here follows assets.)
“3. Said Cooper State Bank agrees to pay all current wages due the officers of said First State Bank.
“Witness our hands at Oooper, Texas, this the 26th day of March, 1926.
“Cooper State Bank, Oooper, Texas,
“By W. G. Farrier, President.
“First State Bank, Klondike, Texas,
“By J. M. Glower.
“Attest: R. M. Walker, Cashier.
“Attest: L. B. Allard.”

At the time of the sale J. M. Glower was president of the Klondike bank and Large Allard was cashier, and after the sale both of these gentlemen became officers in the Cooper bank. J. F. Lindley owned fifty shares of stock in the Klondike bank of the par value of $100 per share at the time of the sale.

While the above-written agreement specified a cash consideration of $35,000 to be paid for the Klondike bank, it appears from the evidence of the officers of the Klondike bank that the stockholders of the Klondike bank were to accept stock in the Oooper bank for their proportionate part of the $35,000, J. F. Lindley’s part amounting to thirty-five shares in the Oooper bank of the par value of $100 per share, this amount of stock being 70 per cent, of the amount of stock Lindley owned in the Klondike bank. At the time of the sale, J. F. Lindley was not present and never authorized any one to act for him except in so far as the following letter authorized J. M. Clower so to act:

“Peerless, Tex., 3/25th, 1926.
“Mr. J. M. Glowers, President,
“First State Bank,
“Klondike, Texas.
“Dear Sir:—
“With reference to the proposed consolidation of the First State Bank of Klondike with the Oooper State Bank.
“As I understand the proposal, the Oooper State Bank with capital stock of $40,000.00 is to take over the assets and assume the liabilities of the First State Bank of Klondike, then the Klondike bank is to begin voluntary liquidation.
“Farrier Brothers are to guaranteé the assets of the Cooper Bank against loss and retain $5,000.00 of their capital stock, thereby releasing $35,000.00 of their capital stock to the shareholders of the Klondike bank.
“This will authorize you to act accordingly as to my stock.
“I am not willing to assume liability in excess of my own stock and do not believe that the other shareholders should expect it.
“Trusting that this authority will serve you, I am
“Yours truly, Jeff D. Lindley.”

It appears that Clower never undertook to exercise any power given in the letter for the reason that the sale was not made on the considerations expressed in the letter; that is, that Farrier Brothers never agreed to guarantee the assets of the Cooper bank.

Some time later, thirty-five shares of stock in the Oooper bank were transferred from W. G. Farrier to J. F. Lindley, and- Clower made several trips to see Lindley in an effort to get Lindley to accept this stock, but in each instance failed; and this certificate of stock was marked “undelivered and canceled” across the face of the certificate and was pasted back into the stock certificate ledger.

It further appears that J. F. Lindley gave his stock in the Klondike bank to his daughter, Thelma Rogers, several months before the Cooper bank closed, and that Thelma Rogers, in person, took the -fifty shares of stock-owned by J. F. Lindley in the Klondike bank to the Cooper bank and received in lieu thereof thirty-five shares of stock in the Cooper bank; it appearing from the record of the bank that the certificate issued Thelma Rogers was not the same certificate issued J. F. Lindley, but that the Lindley certificate remained in the bank marked “undelivered and canceled.”

It is our opinion from the above facts that J. F. Lindley was never a stockholder in the Cooper State Bank. To have become a stockholder he would necessarily have had to accept the stock issued him. Chapman, Banking Commissiorier, v. Thomas et al. (Tex. Civ. App.) 283 S. W. 337. This he did not do, and we are unable to find any evidence in the record that could in any way be construed as making an issue upon the delivery and acceptance by Lindley of this stock.

Appellant insists that the evidence would have authorized a jury in finding that Lind-ley had authorized Clower to take stock in the Cooper bank for him, and that Clower did subscribe and accept stock for Lindley, and that thé stock certificate found in the bank marked “undelivered and canceled” was- in truth and fact owned by Lindley for several months and then returned and marked “undelivered and canceled,” and repasted into the certificate ledger. This ihay have happened, but this record is entirely without evidence to support such a finding. No witness testified to a single act on the part of Lindley relative to this stock except Clower, and he positively denied that he ever subscribed for or accepted any stock for Lindley, but, on the contrary, he did undertake to induce Lindley to take stock in the Cooper bank but was never able to do so.

Therefore we conclude that the court did not err in directing the jury to return a verdict in favor of appellee.

The judgment of the trial court is affirmed.


author: BARCUS, J.

text:
    NORTHWESTERN CASUALTY & SURETY CO. v. FIRST NAT. BANK OF MADISONVILLE et al.
    No. 1017.
    Court of Civil Appeals of Texas. Waco.
    Feb. 26, 1931.
    Rehearing Denied March 26, 1931.
    M. E. Gates, of Huntsville, Baker, Botts, Andrews & Wharton, and S. H. German, all of Houston, and Tom Scurry, of Dallas, for appellant.
    Brownlee & Brownlee, and J. D. Broadway, all of Madisonville, and M. B. Bennett, of Normangee, for appellees.
   BARCUS, J.

In November, 1928, the Thomas-Sable Construction Company, hereinafter called contractor, made a contract with the board of trustees of the Madisonville independent school district, hereinafter called trustees, to construct a school building for an agreed price of $49,000. The contractor furnished a bond, signed by appellant, hereinafter called surety company, under the terms of which the contractor was obligated to pay all claims, debts, or judgments, whether for materials furnished or labor performed; and said bond provided specifically that same was made for the benefit of all subcontractors, persons, firms, or corporations who.might furnish any material or perform labor for or on account of the construction of said building. In the application for the bond and as a part thereof, the contractor specifically transferred and conveyed to the surety company all the deferred payments and retained percentages and any and all moneys and properties that might be due and payable to him at the time of any breach or default in said contract, or that might thereafter become due under the contract, and agreed that in such event all of said money and property should become the sole property of the surety company. Under the terms of the contract'the trustees were to pay the contractor 85 per cent, of each estimate as approved by the architect and retain 15 per cent, until the building was completed. Under said arrangements the trustees paid the contractor approximately $39,600.

On May 10,1929, the contractor, not having sufficient funds to pay the laborers and mate-rialmen for labor and material used in the construction of said building, applied to the First National Bank of Madisonville, hereinafter called bank, for an advancement of $5,-000 with which to pay said laborers and mate-rialmen. The bank furnished said $5,000, and, in order to comply with its conception of the banking law, took from the contractor a demand note for said amount. At the same time and as part of the same transaction, the contractor assigned to the bank all of the future estimates due or to become due from the trustees to him until the $5,000 was paid, which assignment was duly accepted by the trustees. Thereafter three separate estimates, totaling $10,587.52, payable to the contractor and bank jointly, were issued and paid by the trustees to said bank. Out of this fund the bank credited $3,000 on the $5,000 note and permitted the contractor to, and he did, use the remaining $7,587.52 to pay for additional labor and material used on said building: Tbe last of tbe above estimates was issued July 8, 1929, and shortly thereafter the contractor abandoned the contract and the trustees notified the surety company thereof. It took over the contract and completed the building, and same was accepted by the trustees. In completing the building the surety company spent approximately $7,-800, and in addition thereto it paid approximately $7,000 for material and labor that had been incurred by the contractor.

After the building was completed and accepted, the bank filed suit against the school district and its trustees, individually, for the $2,000 and accumulated interest still due on the money it advanced or loaned to the contractor. The surety company filed a separate suit against the trustees to recover the balance of the unpaid purchase price due by the trustees under the contract, amounting to approximately $10,368. The two suits were consolidated and several individual laborers and materialmen filed pleas of intervention. The cause was tried to a jury and resulted in judgment being entered for some of the inter-veners, and for the bank for $2,227, the amount of principal and interest due on its said advancement or loan, and for the surety company for the balance of said fund.

The surety company alone has appealed, and its only controversy relates to the judgment of the trial court in awarding the bank a prior lien on said fund for the $2,227 and interest, and, in the alternative, for failure of the trial court to give it a personal judgment against the independent school district for said amount. Appellant contends that, under the undisputed facts, the bank was not entitled to any portion of said funds. Appel-lee bank contends that it was entitled to and did have a prior and superior lien on said funds under and by virtue of article 5472a of the Revised Statutes, because it furnished to the contractor said money with which to pay for labor and material used in the construction of the building. Said article reads: “Any person, firm or corporation, or trust estate, furnishing any material, apparatus, fixtures, machinery or labor to any contractor for any public improvements in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such cori-tractors for such improvements.” Appellant contends that appellee bank did not, within the contemplation of said statute, furnish the contractor any material, apparatus, fixtures, machinery, or labor, and that it therefore does not come within the purview of said statute. Under article 5160 of the Revised Statutes (as amended by Acts 1927,1st Called Sess., c. 39, § 1 [Vernon’s Ann. Civ. St. art. 5160]) it is provided that any contractor who makes a contract to erect a school building or other public building shall be required to execute a bond which obligates him to pay all persons supplying him with labor and material in the prosecution of the work provided for in such contract. The provisions in article 5160 are in effect the same as the provisions of article 5472a, supra, to the extent that it protects all persons, firms, or corporations who furnish labor or material.

The record shows that at the timé the obligation in controversy arose the contractor applied to appellee bank for money with which to pay his laborers and for material used in the construction of the school building. Appellee bank agreed to and did furnish the $5,000 on condition that the trustees would make the future estimates earned by the contractor payable to it. In carrying out the agreement appellee bank deposited in the bank to the credit of the contractor the $5,000, and took the contractor’s note therefor in order to comply with the national banking laws. The entire $5,000 was used by the contractor to pay the laborers and for material that was used in the construction of said building. Neither the surety company, laborers, nor ma-terialmen knew anything about said arrangement. Appellee bank’s contention is that, since it did furnish the money for and same was used to pay laborers and materialmen, it therefore furnished labor and material to the contractor within the contemplation of said statute.

In construing the question a's to whether a bank which advanced money to pay laborers and buy material comes within the purview of article 5160, almost the identical questions involved in this litigation were involved in Employers’ Casualty Co. v. Rockwall County (Tex. Civ. App.) 300 S. W. 148, and Bradshaw v. Wolfe City (Tex. Civ. App.) 3 S.W.(2d) 527; Employers’ Casualty Co. v. Wolfe City (Tex. Com. App.) 25 S.W.(2d) 320. In each of said cases the trial court gave judgment for the bank, and the same was by t£e Court of Civil Appeals affirmed. The facts in said.cases, especially in Employers’ Casualty Co. v. Rockwall County, are strikingly similar to the ones involved in the suit at bar. The Supreme Court, in opinions handed down on January 21, 1931, Employers’ Casualty Co. v. Rockwall County, 35 S.W.(2d) 690; Employers’ Casualty Co. v. Wolfe City, 35 S.W.(2d) 694, reversed and rendered each of said cases and held that the bank was not entitled to any portion of the money retained by the county or municipality; and further held that,.since the contractor had abandoned the contract and the surety company was required to and did take over the contract and complete the work, the surety company thereby became entitled to all of the unpaid portion of the contract price, both by reason of the assignment contained in the application for the bond as well as under the doctrine of subrogation. Under the holding of the Supreme Court in said cases, we think the trial court was in error in entering judgment for the bank for any portion of said fund.

Appellees contend that the surety company was a mere interpleader in this litigation, and, not haying established affirmatively its right to the money held by the trustees, is not in a position in this court to complain of the judgment of the trial court. We overrule this contention. We think appellant clearly established its right to all the money due and unpaid by the trustees under the contract, since it was shown without dispute that the contractor abandoned said contract and appellant was required to and did take over said contract and complete the building according to the plans and specifications. Under the plain provisions of the contract as made between the contractor and appellant at the time it signed the bond as surety, the contractor transferred and assigned to appellant all of the unpaid portion of the money that was due him or that would become due him under the contract at the time he abandoned same.

The cause having been fully developed, the judgment of the trial court is reversed, and judgment is here rendered denying appellee bank any recovery. There being no complaint of the other portions of the judgment of the trial court, same are not disturbed.


author: WALKER, J.

text:
    MALLEY et ux. v. BILLINGS.
    No. 2056.
    Court of Civil Appeals of Texas. Beaumont.
    March 4, 1931.
    Rehearing Denied March 11, 1931.
    Bitching & Kenna, of Beaumont, for ap pellants.
    Barnes & Barnes, of Beaumont, for ap-pellee.
   WALKER, J.

This was a suit by appellants, Joe Malley and -wife, against appellee for personal ■ injuries inflicted upon Mrs. Malley and for damages to their automobile resulting from a collision between’ their automobile and the automobile of appellee. Appellants thus summarize the jury’s verdict:

“The case was submitted to the jury upon special issues, twenty-eight (28) in number, and the jury answered said special issues by finding that the plaintiff, Mrs. Josephine Mal-ley, was not in said automobile at the time of said collision and therefore sustained no injuries; that the plaintiffs’ automobile was damaged to the extent of Fifty ($50.00) Dollars, by reason of said collision; that said damage and injury was a direct and proximate result of negligence on part of the defendant’s employee and further found that the plaintiffs were guilty of contributory negligence by leaving their automobile parked upon the street at said time and place.”

On this verdict judgment was entered in favor of appellee and against appellants. The contention here is that, notwithstanding the verdict of the jury on the issue of contributory negligence, judgment should have been in favor of appellants for the $50 damages to their automobile. There is no assignment or proposition asking that the judgment of the lower court be reversed and the cause remanded for a new trial, but only that the judgment be reversed and here rendered in appellants’ favor.

The court entered the correct judgment upon the jury’s verdict. The finding against appellants on the issue of contributory negligence was an absolute bar to their recovery, even though it be conceded, as appellants insist, that the charge of the court to the jury was erroneous.

The assignments of error upon which the appeal is based were not filed in the lower court until appellants perfected their appeal to this court. Upon that ground ap-pellee has excepted both to the assignments and the propositions germane theretp. These exceptions are overruled. That a judgment does not give effect to the jury’s verdict presents fundamental error, and may, in a ease of this character, be suggested for the first time upon appeal in this court.

The judgment of the lower court is affirmed.


author: LANE, J.

text:
    JONES et al. v. EASTHAM et al.
    No. 9492.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1931.
    Rehearing Denied Feb. 26, 1931.
    J. S. Bracewell, of Houston, for appellants.
    Dyess, Jaworski & Strong, of Houston, for appellee American Surety Co. of New York.
    Dean & Humphrey, of Huntsville, for all other appellees.
   LANE, J.

The statement of the case made below is substantially the same as made in appellees’ brief and is, we think, sufficient for the purpose of disposing of the issues presented on this appeal.

On November 10, 1915, Luther Eastham, Jr., filed his application for guardianship of the estate of his brother, W. A. Eastham, alleging that said brother was a person of unsound mind, and on the 30th day of November, 1915, and without a complaint in lunacy having first been filed against the said W. A. Eastham, and without the said W. A. Eastham having first been tried in lunacy and found in such statutory proceeding to be a person of unsound mind, the probate court of Walker county appointed Luther Eastham, Jr., guardian of the estate of W. A. Eastham, and directed letters of guardianship be issued to him upon his giving bond in the sum of $200,000, and the court appointed appraisers. The bond required by the purported order of the court, at the time the court attempted to appoint Luther Eastham, Jr., guardian of the estate of W. A. Eastham, was given by Luther Eastham, Jr., as principal, and by B. D. Eastham, L. O. Eastham, H. G. Eastham, and W. L. Dean, as sureties. Luther Eastham, Jr., purported to act under this bond as guardian of the estate of W. A. Eastham until the 15th day of September, 1918, when a new bond was filed by Luther Eastham, Jr., with the American Surety Company of New York as surety.

Luther Eastham, Jr., filed his application to resign as guardian in November, 1926, and on the 13th day of November was permitted to resign as guardian of said estate.

During all the years that Luther Eastham, Jr., purported to act as guarclian of the estate of W. A. Eastham, he filed annual accounts purporting to show the condition of the estate of W. A. Eastham, truthfully reflecting his handling thereof, and each of the said annual accounts so filed were approved by the probate court of Walker county, in so far as said court had jurisdiction and authority to approve same.

But during all said years no complaint in lunacy had ever been filed against W. A. East-ham, and he had never been adjudged a person of unsound mind, and on the 11th day of May, 1927, the appellant in this cause, Mrs. Helen M. Jones, made affidavit “that W. A. Eastham, a citizen of Walker County, Texas, but temporarily in Dallas County, Texas, is a lunatic, or non compos mentis, and that the welfare of himself and others* requires that he be placed under restraint; tjiat said W. A. Eastham has been mentally deranged for a number of years, and has been continually confined in an institution for the mentally afflicted, and has at all times been treated for mental afflictions by physicians ; that recently he has been confined in the Timberlong Sanitarium at Dallas, Texas, and is without guardian of his person and estate.”

On May 13, 1927, Helen M. Jones made application to be appointed guardian of the estate of W. A. Eastham, the very day upon which W. A. Eastham was first lawfully tried and found to be a person of unsound mind.

G. A. Wynne also filed application for letters of guardianship upon the estate of W. A. Eastward, non compos mentis, and Mrs. Byrd E. Wooters filed, as intervener, an application that sfie be appointed guardian of said estate. Mrs. Wooters prevailed in said contest for letters of guardianship and was appointed guardian, and since her appointment has continued to act as the duly qualified and legal guardian of the estate of W. A. Eastham, non compos ¡méntis, and is the only person who has ever served as the lawful guardian of said estate, save and except that G. A. Wynne did serve as temporary guardian pending said contest.

There was an appeal from the order of the probate court, appointing Mrs. Byrd E. Woo-ters guardian of the person and estate of W. A. Eastham, to the district court of Walker county, and upon the judgment of the probate court being affirmed by said court, there was an appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, at Galveston, which court in all things affirmed the judgment of the probate and district courts of Walker county. 7 S.W.(2d) 940. •

Mrs. Wooters promptly qualified as guardian of the person and estate of W. A. East-ham, non compos mentis, and gave a bond as such guardian in the sum of $225,000, which was duly approved by th^ probate court on the 15th day of July, 1927, from which time Mrs. Wooters has continued to act as guardian of the person and estate of her brother, W. A. Eastham, non compos mentis.

At the time Luther Eastham, Jr., filed his application to resign as guardian (under his void appointment), and at the time the contest arose between Mrs. Helen M. Jones and Mrs. Byrd E. Wooters as to which one should he the successor of Luther Eastham, Jr., as guardian of the estate of their brother, W. A. Eastham, no one interested in said suit seems to have thought of the illegality of the action of the probate court of Walker county in appointing Luther Eastham, Jr., guardian of the person and estate of W. A. Eastham before complaint in lunacy had ever been filed against the said W. A. Eastham; and this fact seems to have first been considered in the district court of Walker county in cause No. 5223, which court, in disposing of the contest for letters of guardianship, found “from the evidence that W. A. Eastham has never been adjudged by a court of competent jurisdiction to be a non compos mentis, and the court is of the opinion that the county court of Walker County, as well as this court, is without authority of law to appoint a guardian for the said W. A. Easthaim, unless and until he is adjudged by a court of competent jurisdiction to he a non compos mentis.”

“It is therefore, ordered adjudged, and decreed by the court that the order of the county court of Walker County attempting to appoint Tom Ball, Jr., guardian of the estate of W. A. Eastham is without authority of law and is void, and it is further ordered, adjudged and decreed by the court that no guardian should he appointed by either this court or by the county court of Walker county, unless and until the said W. A. Eastham is adjudged to be non compos mentis. ⅜ * *»

This order was entered in a contest for letters of guardianship wherein the appellant was contesting with her sister, Mrs. Byrd E. Wooters, her right to be appointed the successor of Luther Eastham, Jr., as guardian of the person and estate of W. A. Eastham; this judgment of the district court of Walker county was never appealed from.

In this same guardianship proceeding, appellant, on January 19, 1929, filed her petition for bill of review. Just what judgment or order of the probate court the appellant desired to have reviewed by the court is not specifically stated by her in her petition, nor is it stated by what right she filed, and expects to maintain, this action, save and except that it is alleged by her that she “is a sister of the said W. A. Eastham, non compos men-tis, and is a devisee named in the last will and testament of the said W. A. Eastham, which was executed prior to the time W. A. Eastham was adjudged non compos mentis, and has a vested interest in the estate-of the said W. A. Eastham, subject only to said will being lawfully revoked.”

W. A. Eastham was living at the time she filed her so-called “application for bill of review and restatement of the account of Luther Eastham, Jr.,” and is still living, and Mrs. Byrd E, Wooters was and still is the duly and legally appointed guardian of his person and estáte. The appellant brought this action as a sister of the said W. A. East-ham, not as next friend, nor even as guardian ad litem, and does -not bring the action for the use and benefit of said estate of W. A. Eastham, but for her own use and benefit, predicating her right so to do upon the alleged fact of the execution of the will by W. A. Eastham, and that she had taken steps to perpetuate the evidence relating to the execution thereof.

In her petition for a bill of review, filed in January, 1929, Mrs. Helen Jones, a sister of W. A. Easthaim, alleged that Mrs. Wooters, the duly appointed and qualified guardian of the estate of W. A. Eastham, had failed to take any action toward obtaining a statement of the account of Luther Eastham, and asked that she be permitted to file an application for a bill of review, which request was granted by the court. She made Luther Eastham and all his bondsmen, and Mrs. Wooters, guardian, parties defendant.

In the probate proceedings, the American Surety Company, which was a party defendant, filed its plea to the jurisdiction of said district court, urging that said court was without jurisdiction to review and reform judgments and orders which were void. It also filed its plea in abatement, urging that the petition of Mrs. Helen Jones discloses that the interest she asserts in the estate of W. A. Eastham is not such as would entitle her to the right to prosecute a suit for a bill of review of the orders and judgments of the probate court, or of the auditor’s report made in such probate proceedings, in that she has no present vested interest in the estate of W. A. Eastham. Said company also interposed an exception to the plaintiff’s suit to the effect that there is an improper joinder of parties, in that the plaintiff is not a proper or necessary party to the suit as she has no interest in the subject-matter thereof. It also made general denial of the allegations of the plaintiff’s petition.

All the defendants answered in the cause filed in the probate or county court, and each and all of them adopted the answer of the other as their own.

Judgment was entered in said cause in the county court decreeing that Luther Eastham was not indebted to the estate of W. A. East-ham, non compos mentis, in any sum, and that Mrs. Helen Jones’ prayer for a bill of review be refused, and that each of the defendants named as sureties on various bonds of Luther Eastham and Mrs. Wooter go hence without day.

Mrs. Jones, who was joined in the suit by her husband, J. B. Jones, gave notice of appeal from the judgment of the probate court to the district court, but she filed neither an appeal bond nor cost bond so as to perfect an appeal to the district court.

The cause was submitted in the district court upon the pleadings filed in the county court, including demurrers and exceptions and pleas in abatement, of the respective parties. Whereupon the court sustained each and all the demurrers, exceptions, and pleas in abatement urged by each and all of the defendants, and rendered judgment denying Mrs. Helen Jones’ prayer for a bill of review and restatement of the account of Luther Eastham, as guardian of the estate of W. A. Eastham, non compos mentis. Mrs. Jones and her husband, J. B. Jones, have appealed to this court.

The court filed findings of fact and conclusions of law. The pertinent parts of the conclusions filed are as follows:

“I conclude that the action attempted to be asserted by Mrs. Helen M. Jones is such an action as only the guardian of the estate of W. A. Eastham has the lawful right to maintain, and that Mrs. Helen M. Jones has not such interest in the subject matter of this litigation as to authorize her to prosecute this suit; that she has no present vested interest in this estate whatsoever, and has no such contingent interest or interests in futuro as to authorize her to prosecute this suit, and is not such an interested party in this estate as to permit her to appeal from the judgment of the probate court of Walker County to the court without the filing of an appeal bond, and that, therefore, this court has not jurisdiction over this cause; that the probate court of Walker County did not have jurisdiction over the estate of W. A. Eastham at the time Luther Eastham, Jr., purported to act as guardian thereof, and did not have jurisdiction to restate the account of Luther Eastham, Jr.”

The substance of appellants’ propositions are: First, that since the probate court of Walker county had, without authority, assumed jurisdiction over the estate of W. A. Eastham and had ordered that Luther East-ham be appointed administrator of said estate, thus enabling him to gain possession of such estate, such court had authority to do all things necessary to correct the wrongs growing out of such unauthorized appointment of Luther Eastham; second, that since Luther Eastham accepted such appointment and took possession of said estate by virtue thereof, he and his bondsmen were estopped from asserting that his appointment was made without lawful authority and that the probate court did not have power and authority to make such appointment; third, that since the probate court assumed jurisdiction over the estate of W. A. Eastham, reciting in its order or decree that W. A. Eastham was of unsound (mind, such order is not subject to collateral attack as being void for want of jurisdiction in the court to make the same; and, fourth, that since said estate had been administered upon by Luther East-ham, though under void authority, for eleven years without his authority being questioned, and since the order appointing ‘him does not affirmatively show that W. A. Eastham had not been adjudged a non compos mentis, but did recite' that he was of unsound mind, it will be presumed that the appointment was lawfully made, after the lapse of eleven years.

As already shown, the trial court in disposing of the cause substantially held that the evidence conclusively showed that W. A. Eastham was living at the time Mrs. Jones and husband filed this suit in the county or probate court, and is still alive; that such plaintiffs had and now have no vested interest in the estate of W. A. Eastham, and that neither of them could lawfully maintain the suit brought by them in their individual characters; that they, nor either of them, were or was the guardian of the estate of the person or estate of W. A. Eastham at any time; that the action attempted to be asserted by the plaintiffs, Mrs. Jones and husband, is such an action as only the guardian of such estate has the lawful right to maintain; that the plaintiffs have no present vested interest in such estate whatever, nor such contingent interest or interests in futuro as would authorize them to prosecute their attempted action, nor are they or either of them such parties or party as are permitted by law to appeal from the judgment of the probate court of Walker county to the district court of said county without filing an appeal bond; that no such bond was filed, and therefore such district court was without jurisdiction over the estate of W. A. Eastham or to hear and determine the action attempted by plaintiffs; that Mrs. Wooters was at the time plaintiffs filed their suit, and at all times since, the duly appointed and qualified and acting guardian of the estate of W. A. East-ham, a non compos mentis.

Unquestionably the effect of the action of the trial court in'sustaining all óf the demurrers, exceptions, and pleas in abatement urged by. each and all of the defendants, shown by the judgment rendered, was equivalent to a holding and decree that such court was without jurisdiction to hear and determine the cause of action attempted to be set up by the plaintiffs.

We think the conclusion of law filed by the court and the judgment rendered are conclusively supported by the facts disclosed by the entire record:

Nowhere in the plaintiffs’ petition or elsewhere in the record is it stated that Mrs. Jones brought the suit for the use of the estate of W. A.- Eastham, non compos mentis; her petition shows that she brought the suit upon a conception that she had a present vested interest in the estate of the then living W. A. Eastham, which she was seeking to protect. In her petition she alleged :

“That petitioner is a sister of the said W. A. Eastham, N. O. M., and is a devisee named in the last will and testament of the said W. A. Eastham, N. O. M., which was exr ecuted prior to the time W. A. Eastham was adjudged non compos mentis, and has a vested interest in the estate of the said W. A. East-ham, subject only to said will being lawfully revoked.”

The above quotation is the only allegation in the petition of the plaintiffs with reference to the interest claimed by them in the estate of W. A. Eastham. It, and it alone, reflects their claim of right to maintain this suit and to appeal to the district court from the judgment of the probate court without bond. The .fact that Mrs. Jones is a sister of W. A. East-ham and has been named as one of the beneficiaries in his will, he being living, does not give to her any right of action in her own name, or any right to prosecute for or on behalf of the estate of W. A. Eastham. The will of a person speaks only from the death of its maker, and its probate thereafter.

In 28 Ruling Case Law, p. 60, § 4, it is said:

“One distinguishing feature of a will is that it is not to take effect except upon the death of the testator, and has no binding effect during the lifetime of the testator. Until the death of the maker, it is ambulatory and revocable. An irrevocable will would be an anomaly. A will does not confer any present right at the 'time of its execution, and nothing vests by reason of such instrument during the life of the devisor.”

In the ease of Hagood v. Hagood (Tex. Civ. App.) 186 S. W. 220, at page 227, it is said;

“In the law the will speaks from the death of the testator, not as of the date' of its execution.”

In Ellsworth v. Aldrich (Tex. Civ. App.) 295 S. W. 206, 209, it is said:

“A will, as such, speaks from the death of the testator. The rights which it is designed to convey do not arise or vest until the testator dies.”

The holding of the trial court that Mrs. Jones is without authority to maintain her suit is supported by the following authorities: In re Carpenter, 140 Wis. 572, 123 N. W. 144, 145, 25 L. R. A. (N. S.) 155; Daniel v. Finley (Tex. Civ. App.) 194 S. W. 955; T. & P. Ry. Co. v. Bailey, 83 Tex. 19, 18 S. W. 481, 485; Lutcher v. Allen, 43 Tex. Civ. App. 102, 95 S. W. 572, 576.

In the case first cited it is said:

“Obviously no personal rights of appellant are involved, for an adult nonresident sister has no legal right to control the custody or conduct of another adult sister residing here, nor any right to support from * * * the latter. It is equally obvious that no legal rights of appellant in or to property are affected. Even a next of kin or heir apparent has no right or legal interest in the property of a living relative. ‘Nemo est haeres viven-tis.’ ”

In Daniel v. Finley, supra, it is said:

“Appellant would have no interest in said land during the lifetime of his father, who is not alleged to be dead, except as a legatee under the alleged will. If he should cause said will to be probated, he would then become the owner of an undivided interest in said land, and might recover the same from the purchaser.”

There is no Texas decision, so far as our search has disclosed, which upholds appellants’ contention that Mrs. Jones has a vested interest in the estate of W. A. East-ham by reason of the execution of a will by him while sane. There is no authority for a presumption that one insane will continue so until he has died.

We are now brought to a consideration of the question as to whether Mrs. Jones could confer upon the district court jurisdiction to hear and determine her suit, should it be conceded that she could sue, as she did to-protect her claimed interest in her brother’s estate while he lived, without filing an appeal bond to carry the cause from the probate court to the district court.

As already stated, Mrs. Jones did not file either an appeal bond or cost bond in her attempt to appeal to the district court from the purported order of the probate court. We hold that it is conclusively shown by the record that Mrs. Jones was not a party who could have been aggrieved at the judgment entered by the probate court in this suit. Douglass v. Stover (Tex. Civ. App.) 268 S. W. 1039, 1041; Peavy v. Goss, 90 Tex. 89, 37 S. W. 317, 319 (Supreme Court); Cunningham v. Porchet, 23 Tex. Civ. App. 80, 56 S. W. 574; Daniels v. College, 20 Tex. Civ. App. 562, 50 S. W. 205, 206; McKenna v. McKenna, 29 R. I. 224, 69 A. 844.

In the case first cited it is said;

“Therefore, it is apparent that, for one to be ‘aggrieved’ as that term is used in article 4290, so as to be entitled to prosecute ah appeal to the district court and there require the matters involved in the decision, order, or judgment appealed from to be tried de novo, there must' exist some character of right affected or interest involved on the part of the party appealing as a basis for him to ‘consider himself aggrieved.’ This conclusion we find to be supported by articles 4300 and 4301, Id., providing respectively for the review of guardianship proceedings by bill of review and by writ of certiorari, from which we gather that the right to institute and maintain a bill of review or certiorari proceedings to have any decree, order, or judgment rendered by a county court in guardianship proceedings revised and corrected, is conferred only on some person ‘interested.’ The reason for the requirement, viz., that the person resorting to either of the above remedies should be interested in the order or proceedings appealed from, applies with equal force to a person seeking to have such proceedings reviewed by an appeal under article 4290, supra, at least to the extent herein indicated.”

In Peavy v. Goss, supra, it is said:

“The words ‘any person aggrieved’ are of not infrequent use in statutes. Article 2789 of our Revised Statutes gives a right of appeal to ‘any person who may consider himself aggrieved by any decision,’ etc., of the county court in matters relating to a guardianship. Similar statutes are found in other states, and the words in question have usually been construed to mean any person having any interest recognized by law in the subject-matter of the judgment which he considers injuriously affected by the action of the court.”

For the -reasons above expressed, we hold’ that the trial court did not err in sustaining the demurrers and plea in abatement of defendants, and in holding that it was without jurisdiction to hear and determine the issues sought to be litigated by the plaintiffs.

The judgment is affirmed.

Affirmed.


author: VAUGHAN, J.

text:
    BRICKELL v. WILSON SYNDICATE TRUST et al.
    No. 10941.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1931.
    Ernest Y. Becker, of Dallas, for appellant.
    -Sawnie R. Aldredge and Knox W. Sherrill, both of Dallas, for appellees.
   VAUGHAN, J.

On August 6, 1930, appellant, Mrs. Jimmie Briekell, filed suit against the Wilson Syndicate Trust and the City National Bank of Dallas, trustee, whose successor in trust is the First National Bank of Dallas, to recover |5,000 actual and $10,000 exemplary damages, and an additional $2,000 for alleged mental anguish, aggregating $17,000, alleged to have been sustained by reason of certain acts on the part of said City National Bank of Dallas, trustee, and Wilson Syndicate Trust, in repairing and remodeling the Wilson building, part of the trust estate of said Wilson Syndicate Trust, located in the city of Dallas, a portion of which appellant occupied as a tenant.

Appellant, as grounds for recovery, in substance, alleged: That on or about September -, 1929, she occupied certain space in said Wilson building (suite 317) which she subrented from another tenant thereof; that on October 22,1929, defendants executed to her a lease contract, leasing to her at a rental of $54 per month the apartment of said building then occupied by her, as stated above; that, soon after.the execution of said lease contract, defendants began the work of remodeling said building, especially the ground or first floor, the prosecution of which work interfered with and damaged her “beauty shoppe” business, viz. the Elm street entrance to said building, the principal means of ingress and egress available to her customers, was closed at long intervals; that from the date said work of remodeling was done, and up to the time of the filing of her petition, only one of said entrances was available to her for the use of her customers; that dynamite was set off under her place •of business, directly under one of the windows thereto; that disagreeable noise and confusion were created throughout the day by the use of hammers and electric drills; that the gas and steam heat was cut off in midwinter, the electric current turned off, so that she neither had heat, light, or current to operate her eleeti'ical equipment, necessary in the treatment of her customers and for her personal comfort; that the telephone was disconnected so her customers could • not telephone in for their appointments ; that the building was served with two groups of elevators at the time she made her lease, and that same were fully and efficiently operated up to the time said work of remodeling was begun; that since that time only one group has been operated; that in no instance did defendants warn her in advance that they were about to so interfere with her business; that said acts were in complete disregard of her lease contract, unwarranted interferences with her rights, and were committed maliciously and deliberately for the purpose of injuring her in the further prosecution of her business.

By her original petition, appellant sought no other relief than the recovery of damages alleged by her to have been sustained on account of said alleged wrongful acts and conduct.

On September 3, 1930, appellees Wilson Syndicate Trust and the First National Bank, successor in trust to the City National Bank of Dallas, filed their answer, consisting of a general demurrer and general denial. On December 1, 1930, appellant filed her ancillary petition to her original petition for in-junctive relief. As disclosed by allegations contained in said ancillary petition, appellant predicated her right to the equitable relief sought on the ground that appellees had, after appellant filed her suit for damages, instituted two suits against her in one of the justice courts of precinct No. 1 Dallas county, Tex., viz. a suit to recover the sum of $216 for past-due rents that had accrued against appellant for the use and occupancy of the premises leased to her by. appellees, and caused to be issued a distress warrant, which, with the citation issued out of said suit, were made returnable to the county court of Dallas county at law No. 2.

In reference to the citation issued out of this suit, it was alleged by appellant that same contained the following language: “You are hereby commanded to summon * * * Mrs. Jimmie Brickell ⅜ * * to appear before the County Court of Dallas County at Law Ño. 2 * * ⅜ then and there to answer the petition of ⅞ ⅜ ⅜ filed in the said court on the 28th day of October, 1930 against the said Mrs. Jimmie Brickell ⅜ * * said suit being numbered 34214, the nature of which demand is as follows: plaintiff alleges that it is the landlord of the said defendant and that the said premises are located in Precinct No. 1, known and designated as suite 317 Wilson Bldg., on Main, Elm and Ervay Streets, Dallas, Dallas County, Texas; plaintiff alleges that the rent is now past due and unpaid on said premises in the sum of $216. Wherefore plaintiff sues for this rent in the sum of $216, interest, foreclosure of landlord’s lien and for all costs, etc.”

The second suit so filed by appellees was an action of forcible detainer to recover possession of said suite 317, Wilson building. The injunctive relief sought by appellant was solely for the purpose of restraining appellees from prosecuting said suits, on the grounds, as stated by appellant in her ancillary petition, viz.:

“(2) Because the subject mattér of the purported suit, to-wit, the said business, the lease contract, the entire contract is now under the jurisdiction of the herein court in the herein lawsuit, and hence could not be subject to either the county court at law of Dallas County No. 2 or the Justice Court of Dallas County Place No. 2, or any other court.
“(3) Because all these otherwise unlawful acts are in contempt of the jurisdiction of this Honorable Court and directly interfere with this court’s jurisdiction and seek to decide the very questions and subject-matter before this court, to-wit, among them, the said lease contract, the said purported offset, if any, the said beauty shop business, part of which is the said equipment.”

On an ex parte hearing December 3, 1930, and based on the allegations contained in said ancillary petition, the judge of the trial court entered the following order: “The foregoing petition for injunction being considered, it is ordered that the clerk of the district courts of Dallas County, Texas, issue a writ of injunction in all things as prayed for in the within petition, upon the petitioner executing to the adverse party a bond with good and sufficient security, in the sum of One Thousand Dollars, conditioned as the law requires.”

The writ of injunction was duly issued thereunder December 2, 1930. On December 10, 1930, the trial court on its own motion entered an order dissolving said writ of injunction and vacating the order granting same.

In support of her appeal, appellant relies upon the following pronouncement made by our Supreme Court in the case of Cleveland et al. v. Ward, Judge, et al., 116 Tex. 1, 235 S. W. 1063, 1069: “The two cases pending are between identically the same parties, except the Johnson county case has one additional, apparently necessary, defendant. They involve the same subject-matter, identically the same transactions, and the relief in one would be res adjudicata as to the relief prayed for in the other suit. ⅜ ⅜ * The Johnson county court, having first acquired jurisdiction, may exercise it to dispose of the whole subject-matter of the litigation and adjust all the equities between the parties, and is entitled to do so. * * * The causes of action in the two conflicting trial courts involve the same transaction and the same state of facts. That the two cases present in substance and effect the same cause of action we do not think debatable. A recovery in the Johnson county case canceling the notes and deed of trust involved would necessarily be res adjudicata as against the cause of action asserted on these notes and deed of trust by the respondents herein aq plaintiffs in the Dallas county suit. * * * Since jurisdiction attached upon filing the suit in Johnson county, the rule is elementary that it could not be taken away or arrested by the subsequent proceedings in another court.”

We do not think this holding has any application to the facts 'of this case. Appellant’s suit is one for the recovery of damages on account of certain acts and conduct alleged to have been committed by defendants, not in any respect involving the right of possession, the validity or invalidity of the lease ¡ contract, or the unlawful eviction of appel- ( lant. The two suits instituted by appellees 'only involved the right to recover rents alleged to be due by appellant to appellees, the foreclosure of the landlord’s lien, alleged to exist upon property of appellant located in and on the lease premises, and the right of appellant to obtain possession of the premises after the expiration of the term of her lease and demand for such possession had been duly made. House et al. v. Reavis et al., 89 Tex. 626,' 35 S. W. 1063. The issues thus presented by the two suits filed by appellees do not, in any respect, involve a question of damages caused by any of the alleged acts and conduct contained in appellant’s petition, and appellant’s petition does not in any respect involve the right of appellees to recover rents for the lease premises from appellant, or their right to the possession of said premises after the expiration of appellant’s term under the lease contract. Therefore no. disposition that should be finally made of the suits filed by appellees could encroach upon the jurisdiction of the district court, as invoked by appellant on the filing of her original petition, as a recovery in both of the suits filed in the justice court would not be res adjudicata as'against the cause of action asserted by appellant in her suit for damages. Cleveland v. Ward, supra. We are of opinion that appellant’s application for writ of injunction was subject to a general demurrer, in that no ground for such relief was alleged; therefore the judgment of the trial court is in all things affirmed.

Affirmed.


author: JONES, C. J.

text:
    ZANES et al. v. LYONS et al. SOUTHWEST FREIGHT AGENCY et al. v. LYONS et al.
    Nos. 10964, 10968.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1931.

      Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellants.
    Thompson, Knight, Baker & Harris, of Dallas, for appellees.
   JONES, C. J.

This is an appeal from an interlocutory order appointing a receiver, entered by a district court of Dallas county, upon an ex parte hearing. Appellee Mrs. Effie C. Lyons filed a suit in a district court of Dallas county, in which she sought to recover damages because of an alleged breach of a lease contract, alleging that the past-due rental under such contract amounted to $9,900, and in which other relief was sought. The petition named F. A. Gillette,'F. M. Gillette, and V. M. Gillette, individually and as partners doing business under the trade-name of Nichols-Gillette Transfer & Warehouse Company, the wives of each of the individual defendants, the Nichols-Gillette Transfer & Warehouse Company, a corporation, W. R. Zanes, Seth Tate, T. R. Rogers, Walter Bockstahler, Electric Freight Agency, a corporation, and Southwest Freight Company, a corporation. The other appellee is the receiver, and the term appellee will refer to Mrs. Lyons.

The immediate appointment of a receiver, to be given very full powers in reference to the property of each of the defendants, was a part of the relief sought. The petition was1 presented to the judge of the district court and an order entered the same day of the filing of the petition appointing a receiver, with powers substantially as prayed for in the petition. Appellants W. R. Zanes and the Electric Freight Agency duly perfected an appeal from this order, and such appeal is docketed as cause No. 10964, and given the style as shown above. Later, appellants Southwest Freight Company, under its true name of Southwest Freight Agency, T. R. Rogers, and Walter Bockstahler perfected an appeal to this court, and it is docketed as cause No. 10968 and styled as shown above. The two appeals are from the same order and by codefendants in the suit filed by ap-pellee, and will be treated in this opinion as though there were but one appeal. The term appellants will refer to the appellants in both . of said causes.

The lease contract, which forms the basis of this suit, was entered into between appel-lee, as owner of a six-story warehouse building, located in the city of Dallas, and. the Nichols-Gillette Transfer & Warehouse Company, a copartnership composed of E. A. Gillette, P. M. Gillette, and V. M. Gillette, as lessees. The lease was for a period of live years, beginning January 1, 1928. Under the terms of this lease, the building was to be occupied by the lessees as a warehouse and storage building, for their offices, and not otherwise. The consideration for the lease is named at $66,000, to be paid monthly in advance, the monthly installment ■ being $1,100 with a provision that, if the lessees should default as to a compliance with any of the covenants mentioned in said lease, one being a prompt monthly payment in advance, the lessor could enforce the performance of the contract “in any mode or modes provided by law, and with or without declaring the lease forfeited, and with or without notice or demand, and with or without using force, may re-enter upon and resume possession of the demised premises and remove any and all persons and property therefrom without being deemed guilty of any manner of trespass or becoming in any wise liable- for damages, without prejudice to any remedy she may have or arrears of rent or damage.” The power to sublease was not conferred by the contract.

The allegations in reference to the respon- . sibility of appellants under this contract are very lengthy, and we do not deem it necessary, for the disposition we shall make of this case, to give their legal effect, except to say that they are believed to be sufficient, as against a general demurrer, to form a basis for a final judgment in appellee’s favor. Neither do we find it necessary to pass upon the sufficiency of the pleadings in reference to the existence • of such extreme necessity as would warrant ' a court in appointing a receiver, without notice to these appellants, to take charge of their properties, for the reason that the case must be reversed on other grounds and such question cannot arise on a subsequent trial.

The petition for a receiver is signed by counsel as attorneys for appellee. The only verification it has is: “W. G. Chisum, Jr., being sworn, says on oath that he is the agent of Bffie G. Lyons, complainant in the above styled suit, and has been authorized by said complainant to make this affidavit; that he has read the foregoing bill of complainant and that the allegations of fact therein made are true to the best of his knowledge, information and belief.” It is signed by affiant and sworn to before a notary public.

The order of the court appointing a receiver contains the following: (1) “The petition of plaintiff, praying for the appointment of a-receiver herein, and the proof supporting same, to wit, the verified pleadings of the parties, together with the statement of counsel presenting same, being this day presented to the court are duly considered, and it appearing that an immediate appointment of a receiver is necessary,” etc.

Of course, the unsworn statement of an attorney made to the judge to whom the petition was presented could not be considered by such judge as evidence, and hence the only evidence before the court, as to the truth of the allegations in reference to the necessity for the immediate appointment of a receiver, without notice to the affected parties, is the petition itself, verified only on the best of the knowledge, information, and belief of an agent.

-[2] The appointment of a receiver, by an interlocutory order, with powers to take charge of the property and business of another, is generally conceded to be the most drastic of all the extraordinary remedies authorized by law, even when the power to do so is not exercised until after notice and hearing. When a receiver is appointed by an interlocutory order, in advance of a hearing, its drastic effect is materially accentuated; and when, as in the instant case, the interlocutory order is entered without notice to the parties adversely interested, and on an ex parte hearing, the utmost limit to the allowance of drastic and extraordinary remedies has been reached by courts. Such exercise of power, where- the adverse parties can readily be served with notice, as in the instant case, can only be justified in extreme cases, in which it is made clearly to appear that there is such imminent and pressing danger of loss to the extent that the purpose for which a receiver is asked would be frustrated by the elapse of the few days’ delay incident to the giving of notice of the application. Delcambre v. Murphy (Tex. Civ. App.) 5 S.W.(2d) 789 ; Hodges Drilling Co. v. Tyler (Tex. Civ. App.) 233 S. W. 548; Security Land Co. v. South Texas Development Co. (Tex. Civ. App.) 142 S. W. 1191; Haywood v. Scarborough, 41 Tex. Civ. App. 443, 92 S. W. 815; Cotton v. Rand (Tex. Civ. App.) 92 S. W. 266; Sachs v. Goldberg (Tex. Civ. App.) 135 S. W. 600; Butts v. Davis (Tex. Civ. App.) 146 S. W. 1015; Simpson v. Alexander (Tex. Civ. App.) 188 S. W. 285; Kottwitz v. Jehn (Tex. Civ. App.) 6 S.W.(2d) 209.

Because of the drastic nature of the remedy of an ex parte receivership, it is generally held that, if the facts in the petition disclose that the applicant can be made secure and the impending loss averted by the issuance of a temporary writ of injunction, which will not take from the possession of the adverse parties their property or stop them in the operation of their business, a receiver will not be appointed on an ex parte hearing. In the instant case, it appears from the allegations of the petition, that any danger of loss to appellees, by reason of a delay in issuing notice, could have been guarded against by the issuance of a temporary writ of injunction restraining appellants from, in any manner, disposing of the property involved in this suit until a hearing on the receivership application could be had.

The receivership proceedings, in the instant case, are doubtless brought under the provisions of subdivision 1, art. 2293, R. S. 1925, and the right to such receivership is determined by such statutory provisions, rather than by the rules of equity in respect thereto. While this id true, yet the procedure to be followed,, even in securing the appointment of a receiver on grounds specifically authorized by statute, the rules of equity will control. Article 2319, R. S. 1925. Under such rules no receiver can be appointed without the necessity therefor be shown to exist by legal evidence. The necessity for a receiver must appear in the petition by clear and unambiguous allegations of fact. When such allegations appear in such a petition and are verified by the oath of a person that they are true within his knowledge, such verified petition may be received by the court as competent evidence establishing the truth of such facts, when the judge of such court is called upon to appoint a receiver ex parte. When a receiver is appointed on an ex parte hearing, the petition must also, by clear and unambiguous allegations, show facts which evidence an immediate and pressing necessity for such appointment.

There is no such verification of the petition in the instant case. The facts alleged therein are attempted to be verified by one W. O. Chisum, Jr., as agent of appellee; he does not depose that the allegations of fact contained in the petition are within his knowledge true, but only that “such allegations áre true to the best of his knowledge, information and belief.’’ Such verification does not give to the facts alleged in the petition the dignity of evidence under any rule obtaining in respect to the reception of evidence. Suppose that in a suit a deposition has been taken and the witness qualifies an important answer to a question, calling for the statement of a fact, with the statement that the answer given is .true “to the best of his knowledge, information and belief,” such an answer would be stricken from the deposition on proper objection being made. In the instant case, the court appointed a receiver to take charge of certain properties used in the business of appellants, without any legal evidence as to the truth of the allegations on which the court based such action. This was error. Alto Cotton Oil & Mfg. Co. v. Berryman (Tex. Civ. App.) 218 S. W. 513; Lane v. Jones (Tex. Civ. App.) 167 S. W. 177; Ginther v. De Zabalgoitio et al. (Tex. Civ. App.) 170 S. W. 793; Pullen v. Baker, 41 Tex. 419; New South Bldg., etc., Ass’n v. Willingham, 93 Ga. 218, 18 S. E. 435; Grandin v. La Bar, 2 N. D. 206, 50 N. W. 151; Henderson v. Reynolds, 168 Ind. 522, 81 N. E. 494, 11 L. R. A. (N. S.) 960, 11 Ann. Cas. 977, and authorities cited in note to this decision page 980.

It necessarily follows that the order appointing a receiver, in so far as such order affects the appellants herein, must be reversed and remanded. The receivership, in so far as it affects other parties who have not appealed, is not disturbed.

Reversed and remanded.


author: LEVY, J.

text:
    SMITH et al. v. CITY OF DALLAS et al.
    No. 3916.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1931.
    Rehearing Denied Feb. 26, 1931.

      Reid & Erhard, of Dallas, for plaintiffs in error.
    J. J. Collins, W. Hughes Knight, H. P. Kucera, and A. A. Long, all of Dallas, for defendants in error.
   LEVY, J.

(after stating the case as above).

By assignments of error Nos. 1, 2, and 3, the complaint is made of peremptorily instructing the jury to return the verdict in favor of the city of Dallas permanently “enjoining the defendants, the School Board of Cement City Independent School District, from further participation in the school affairs of said district.” It is pointed out that the legal existence of the Cement City independent school district was never dissolved nor abandoned, and the plaintiffs in error in their capacity of school trustees and as taxpaying inhabitants were authorized to enforce the rights of such school district in the present suit, because the attempted consolidation of the territory of the two school districts in evidence was invalid and not in compliance with the statutory provisions relating thereto. It is not open to question whether there is any provision in the statute by which territory in adjacent established independent school districts can be consolidated into a single school district. The Legislature by the Acts of 1927, p. 124, c. 82 (Vernon’s Ann. Civ. St. arts. 2815a-2815gj, has expressly vested in the county board of trustees of public schools the power to so alter and consolidate the two existing adjacent school •■districts. Thdy are affirmatively authorized to act at a time whenever it becomes “necessary for the best interests of the school children.” The exercise of the authority to so act is made subject only to the proviso contained in section 1 of the act (Vernon’s Ann. Civ. St. art. 2815a) reading: “Provided thq.t the ■territory of no Independent school district having more than five hundted (500) scholas-tics shall be changed without the consent of its Board of Trustees.”

It is evident, therefore, as conclusively appearing, that in passing the order of consolidation of September 5,1928, the county board of trustees of Dallas county were undertaking to carry out the statutory authority given to them. In that view, the first inquiry is as to the right of the plaintiffs in error to have reviewed, and the authority of the courts to interfere with the action of the county board of trustees. The plaintiffs in error did not perfect the appeal from the action of the county board of trustees as authorized by section 9 of the act referred to. There is no claim nor allegation that the county board of trustees in consolidating the two school districts in any wise acted in fraud or corruption. It follows that, in order to warrant any contest by the plaintiffs in error and review by the courts, the proceedings by which the consolidation was claimed to have been made must have been in force and effect, not merely irregular, but void. Stephens v. Buie, 23 Tex. Civ. App. 491, 57 S. W. 312. The legality of the formation of the consolidated school district cannot be attacked collaterally. Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W.(2d) 91. The formation of the district can be attacked, however, if the proceedings relative thereto were legally void. Parks v. West, 102 Tex. 11, 111 S. W. 726. As was affirmatively shown by its official records in all things correctly kept, the county board of trustees of Dallas county duly passed the order of consolidation at its meeting of September 5, 1928. This meeting was pursuant to the regular authorized call therefor, which fixed the time, place, and purpose of the meeting, and after notice given in public places within the territory of each of the two districts for the specified number of days before the meeting. The contents of the notices of such meeting as publicly given of the territory affected was on its face plainly sufficient for the purpose. This official record becomes conclusive, and with all formality of a judgment at law, in the absence of fraud or corruption, showing, as it does, a full compliance with all the required terms of the statute. And consent to such consolidation or union was expressly given by the board of education of the city of Dallas by its order of record of November 15, 1928. This consent became necessary and indispensable under the statute, since the Dallas city school district contained more than 500 school children. Under article 5 of the Charter of the City of Dallas, the board of education of* the city had authority to give the consent, as such board has exclusive control and management of the city public schools. As was further shown, in addition to this order of consent, the Dallas city board of commissioners, by ordinance of December 10, 1928, formally annexed the Cement City independent school district to the ci'ty of Dallas “for school purposes.” The preamble of that ordinance shows that “the trustees of said Cement City Independent School District have by unanimous voté petitioned the Board of Education and the Board of Commissioners of the City of Dallas and the County Board of School Trustees of Dallas County, Texas, to annex said territory to the City of Dallas for school purposes.” The preamble of that order further shows that “a majority of the resident qualified voters” of the Cement City independent school district had petitioned to have the territory of that district annexed to the city of Dallas “for school purposes.” Evidently there was consent to have consolidation of the two districts.

The provision in the order of consolidation of September 5, 1928, and which provision was consented to by the city board of education November 15, 1928, that the consol--idation or union of the two school districts should not become complete and effective until the expiration of the school term “of 1928-29,” would not operate or have the legal effect to make the consolidation ineffective or void. The statute does not provide that the time of taking effect of the consolidation shall be at once and not otherwise. The statute prescribes no time for the consolidation to take effect. Making the consolidation effective at -the expiration of the school term stated was, in the facts, both reasonable and expedient, and was not contrary to the policy and spirit of the law. At the time of filing the present suit on October 8, 1929, the consolidation was manifestly in effect and complete.

It is further pointed out that there was failure to make a map showing the boundaries of the new district as provided in section 2 of the above act (Vernon’s Ann. Civ. St. art. 2815⅜). The failure to file the map would not in special facts of this case' operate to invalidate the formation of the consolidated or new school district. School District No. •4 v. School District No. 2, 135 Ill. 464, 28 N. E. 49.

It is believed in the record presented that the trial court did not err in giving the peremptory instruction to the jury. In the facts shown, the city of Dallas was entitled to the relief asked to be granted, for, as a matter of pure law, the jurisdiction over the consolidated territory in question had become vested in the city of Dallas at the time of the present suit, because the territory in the Cement City independent school district had been legally separated from that district and consolidated with the Dallas City school district. Its right to the control of the schools and to the school property therein vested when the consolidation of the two school districts into a single school district was complete, which was fully so at the time of the suit.

It is urged as error of the refusal of the court to dissolve the temporary injunction issued in the case because of insufficient affidavit of the petition and of the failure of the city to give bond. The affidavit we' think is sufficient. The city of Dallas was not required to give bond. Section 12, article 14, Charter of Dallas; articles 1174, 2072, E. S.; City of Dallas v. Springer (Tex. Civ. App.) 8 S.W.(2d) 772, 774. The present permanent injunction, awarded on trial of the merits, would be regarded legally and properly, granted although the affidavit for temporary injunction was defective and although there was failure of the city to give bond therefor.

The judgment is affirmed.