author: WILLIAMS, Justice.

text:
    John B. WILLIAMS, Appellant, v. Lelton BROWN, Appellee.
    No. 16079.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 9, 1962.
    - Charles Ben Howell, Dallas, for appellant.

      Palmer & Palmer, and William T. Ward, Dallas, for appellee.
   WILLIAMS, Justice.

Lelton Brown sued John B. Williams alleging damages by virtue of fraud, breach of contract, and conversion. Plaintiff alleged that he had entered into an oral agreement with defendant whereby defendant was to sell plaintiff a 1958 Ford automobile for an agreed price of $1,129, payable $100 in cash and $42 per month. Plaintiff alleged that defendant warranted and represented to him that there were no liens on the automobile and that defendant would convey to plaintiff a good and unencumbered certificate of title to the automobile. Plaintiff took possession of the car after making the down payment of $100 and thereafter made monthly payments until he paid in excess of $350 on the purchase price. Plaintiff alleged that defendant deliberately breached his contract and wrongfully repossessed the automobile; that in truth and in fact the automobile was encumbered with a lien of $1,100 in favor of a bank, and that defendant failed and re-, fused to deliver to him proper certificate of title, as agreed. Plaintiff contended that had it not been for the false and fraudulent representation concerning the character of the title to the automobile that he would not have purchased same.

Following a non-jury trial judgment was rendered in favor of plaintiff in the sum of $350 from which judgment defendant appeals.

In his first two points on appeal appellant contends that the trial court erred in rendering judgment for the plaintiff based upon fraud and misrepresentations concerning the existence of a prior mortgage lien and the failure to deliver a certificate of title to the automobile, for the reason that the failure to comply with Art. 1436-1, Vernon’s Ann.P.C. is equally chargeable to both buyer and seller, and that as matter of law, plaintiff had no loss or damage growing out of such misrepresentations. Neither of these points are germane to assignments of error contained in appellant’s motion for new trial filed in the trial court. Rule 418-b, Texas Rules C.P. provides that points on appeal must be germane to assignments of error contained in motion for new trial, when same is required. In this case, being tried before the court without a jury, no motion for new trial was required, but appellant elected to file same. In the recent case of Burnett v. Meletio, Tex.Civ.App., 351 S.W.2d 912 we held that when a motion for new trial is filed in a non-jury case the moving party, on appeal, is confined to the assignments presented in said motion. Rule 323, T.R.C.P. Humphreys v. Humphreys, Tex.Civ.App., 200 S.W.2d 453. Accordingly, appellant’s points one and two are insufficient for our consideration.

Even if such points were sufficiently presented they would require our overruling same. The essence of appellant’s contention is that Art. 1436-1, § 53, Penal Code provides that all sales made in violation of the Act shall be void and no title shall pass until the provisions of the law have been complied with and since the evidence is uncontradicted that appellant did not deliver a certificate of title in compliance with the Act, nor did appellee demand and receive the certificate of title as required by the Act, then appellee is without recourse, as a matter of law. We disagree with this contention. The general rule is announced in 58 A.L.R.2d 1361 to the effect that where the seller has failed to comply with statutes concerning transfers of title which declare that a sale shall be void or that no title shall pass unless and until the statutes are complied with, or which are construed to have that legal effect, the buyer may repudiate the sale and recover the amount he has paid for the vehicle. This rule is followed in Texas as evidenced by the case of Bryant v. Hancock, Tex.Civ. App., 287 S.W.2d 525, 58 A.L.R.2d 1348 wherein the court said:

“Article 1436-1, supra, is explicit that unless the seller of a used car comply with its provisions that no title shall pass and the sale is void. Here the seller admits no compliance with such article. If the title to the car never passed from Hancock to Bryant, the consideration for the $312 cash payment and the notes and mortgage paid and given Hancock by Bryant has failed, and Bryant is entitled to recover the $312 and to have the notes and mortgage cancelled. The following cases are directly in point and support the conclusions herein reached: Giles v. Lehman, Tex.Civ.App., 163 S.W.2d 720; Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938; Associates Inv. Co. v. National City Bank of Waco, Tex.Civ.App., 231 S.W.2d 661; Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185.”

Further support of this rule is the case of Rush v. Smitherman, Tex.Civ.App., 294 S.W.2d 873 wherein the court held that a contract to sell without delivery of the certificate of title is not illegal as between the parties. Gregory v. Laird, Tex.Civ. App., 212 S.W.2d 193; Hicksbaugh Lbr. Co. v. Fidelity & Casualty Co. of N. Y., Tex.Civ.App., 177 S.W.2d 802; Fulcher v. Hall, Tex.Civ.App., 170 S.W.2d 321.

As a general rule, even though the parties to an illegal contract are in pari delicto, it is held that if the contract remains executory and the contract does not involve moral turpitude but is merely malum prohibitum, either party may repudiate and recover the money or property he has advanced under it. 12 Am.Jur. Contracts, § 216. Where the illegality lies in the failure of the seller to transfer a certificate of title to the vehicle, the contract is regarded as executory, and the buyer may repudiate the contract and recover the consideration. 58 A.L.R.2d 1361. As was held in Schroeder v. Zykan, Mo.App., 255 S. W.2d 105, a sale without a certificate of title is malum prohibitum rather than malum in se, and so the buyer may repudiate the contract while it is executory and secure a refund of the purchase price.

By his points three and four appellant contends that appellee’s proof of payment and compliance with the contract of sale is supported by (1) no evidence; (2) insufficient evidence; and (3) contrary to the great weight and preponderance of the evidence. These points have required us to review the entire record in the light of the familiar rule concerning “no evidence” and “insufficient evidence” as well as the rule of “contrary to the great weight and preponderance of the testimony”. In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660; “No Evidence and Insufficient Evidence Points of Error” Tex.Law Rev. Robert W. Calvert, Vol. 38, pp. 361-372. Having complied with these rules and carefully reviewed the entire record we are unable tO' agree with appellant’s points three and four and the same are therefore overruled.

It is not necessary for us to detail here all of the evidence adduced upon the trial of this case concerning payments made by appellee to appellant under the contract of sale. It is sufficient to state that appellee testified that he made the payments when due and, in fact, paid more than was required of him under the contract at the request of appellant. Appellant testified that appellee did not pay the payments and this justified his repossession of the automobile. The trial court made findings of fact at the request of appellant wherein, among other things, it was found that ap-pellee had made the payments under the contract and that the same amounted to. $350 for which judgment was rendered. Appellant candidly concedes that the testimony is conflicting on the question of payments but earnestly argues that appellee’s, testimony is not worthy of belief and amounts to no evidence at all. We cannot agree. The trial court acted as judge of both the law and the facts. We are unable to say, in the light of the evidence adduced, that reasonable minds could not have reached the same conclusion as did the trial court. Neither are we able to say that the findings of the court is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Donald R. CURTIS, Appellant, v. MITCHELL-VINCENT COMPANY, Appellee.
    No. 4070.
    Court of Civil Appeals of Texas. Waco.
    Nov. 8, 1962.
    Rehearing Denied Nov. 29, 1962.
    Gerald Weatherly, Laredo, for appellant.
    John M. Lawrence, III, Wm. B. Lang-ford, Bryan, for appellee.
   WILSON, Justice.

Appellee sued to recover the balance alleged to be due from appellant on an account for premiums on insurance policies and bonds delivered by appellee as agent. Appellant denied the justness of the charges for one of the policies and a bond, and asserted affirmative defenses. Judgment as prayed for was rendered on a jury verdict.

Appellant contends there is no evidence the ' bond and policy were “reasonably worth” the sums charged therefor as alleged. Although there is such direct evidence, there was further uncontroverted proof that the premiums charged and-the rates applied were those prescribed by the State Board of Insurance Commissioners. Articles 5.01, 5.03 et seq., Insurance Code, V.A.T.S. prohibit issuance of insurance at premium rates different from those so prescribed. Such rates, approved by the Board are required by the statute to be just and “reasonable”. “Since the rates had been fixed by the State Insurance Commission, it was not essential that they be specifically agreed to by the parties.” Pacific Fire Ins. Co. v. Donald, 148 Tex. 277, 224 S.W.2d 204, 207; and the reasonableness of the charges was established by the evidence.

Appellant made no objection to the issues submitted, but assigns error to overruling of four objections to the charge which adopted “requests to charge”, which in turn adopted refused requested issues. Aside from questions as to whether the ■“objections” complied with Rules 272, 274, Texas Rules of Civil Procedure, and apart from the fact they were requested en masse with other intermingled, confusing and improper issues, the requested issues inquired how much, if anything, the policy and bond were worth “to defendant” and whether they were “of no value” to plaintiff-appellee. These were not ultimate issues. The further objection that the charge failed to submit any issue as to the value or worth of the coverage in question, called for the jury to express a conclusion concerning a collateral attack on validity of the rate-fixing orders of the Board of Insurance Commissioners. Such an issue could submit only an inquiry as to reasonableness, which was foreclosed by establishing without dispute that the rate charged was that fixed by the Board.

It is urged the Court erred in permitting appellee to offer further evidence after appellee rested its case in chief, and appellant moved for instructed verdict. The point is overruled. Rule 270. Affirmed.


author: GRISSOM, Chief Justice.

text:
    FERRIER BROTHERS et al., Appellants, v. T. M. BROWN, Jr., et al., Appellees.
    No. 3747.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 9, 1962.
    Rehearing Denied Nov. 30, 1962.

      Bradbury, Tippen & Brown, Abilene, R. J. Balch, Seymour, for appellants.
    McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellees.
   GRISSOM, Chief Justice.

Ferrier Brothers was the prime contractor for construction of a part of Interstate Highway Number 20 around Abilene. Article 5160, known as the McGregor Act, required that they file with the State a performance bond and a payment bond. Seaboard Surety Company became Ferrier Brothers’ surety on such bonds. The Browns became Ferrier Brothers’ subcontractor for a portion of said work. The Browns subcontracted the same work to T. F. Hill. The subcontract was performed by Hill, as an independent contractor. It was completed and accepted by the State in February 1961. Apparently, Hill performed a portion of the work with machinery purchased from Darr Equipment Company and while the work was being done Hill’s note to Darr became due and Fer-rier Brothers, at Hill’s request but without notice to the Browns, made a payment of $10,070.00 to Darr. That amount was withheld by Ferrier Brothers from its payment to the Browns. After the Browns’ subcontract was completed, they timely and in the manner required by law filed with Ferrier Borthers and said surety their claim under the McGregor Act for the unpaid balance. It is undisputed that the Browns’ subcontract was performed and that Fer-rier Brothers received full payment from the State for the job. The claim filed by the Browns totaled $37,418.80, which was $64.09 more than Ferrier Brothers in their original answer admitted they owed. The claim for the $64.09 was abandoned by the Browns. The Browns sued Ferrier Brothers and their surety for the unpaid balance of their contract. The Browns’ motion for a summary judgment was granted and judgment was rendered for them. Ferrier Brothers and Seaboard Surety Company have appealed.

Appellants contend the court erred (1) in striking their amended answer and cross-action, which was filed without leave of the court on January 15, 1962; (2) in overruling, on January 16th, their application for continuance of the hearing of the motion for summary judgment and (3) in granting plaintiffs’ motion for a summary judgment.

In appellants’ original answer, filed in June, 1961, they alleged Hill was asserting a claim to the money owed by Ferrier Brothers to the Browns and they took the position that they were stake holders to the extent of $27,284.71. They denied that the Browns were entitled to $10,-070.00 which had been paid by Ferrier Brothers to Darr on behalf of Hill and charged to the Browns. No deposit in court of the $27,284.71 was made. Ferrier Brothers made Hill a party to the suit and their then attorney filed an answer for him. Although Hill had claimed the Browns owed him some money on his subcontract, he later made an affidavit in which he denied that appellees were indebted to him, waived any claim to the money held by Ferrier Brothers for the Browns and swore, as he had in a previous deposition, that the $10,070.00 paid for him by Ferrier Brothers to Darr was for payment of his note to Darr for the purchase price of machinery. Hill acknowledged that he owed Fer-rier Borthers said amount. The Browns filed a motion for a summary judgment, making Hill’s affidavit and the pleadings and depositions on file a part thereof. Thereupon, appellants, on January 9, 1962, filed their supplemental answer and cross-action and a sworn answer to appellees’ motion for a summary judgment. After due notice, the court held a pre-trial hearing on January 11th, taking up at that time appellees’ motion for a summary judgment. The case had previously been set for trial on its merits on January 16, 1962. The court reserved decision of ap-pellees’ motion for summary judgment until that time. On January 16, 1962, the court held there was no genuine issue as to any material fact and granted appel-lees’ motion for a summary judgment.

Appellants did not refute the affidavit of Hill or the depositions on file. They did not present counter affidavits or evidence, nor did they offer any excuse for their failure to do so. Appellants’ amended answer and cross-action, filed without leave of the court on January 15, 1962, was stricken. Their motion for a continuance, filed on January, 15th, was denied and, the amount of attorneys’ fees being stipulated, judgment was rendered for the Browns for the unpaid balance of their contract and for attorneys’ fees.

Appellants say the court erred in striking their amended answer and cross-action; that amended pleadings and supporting instruments may be filed at any time before a hearing of the motion for summary judgment and that said pleading was filed before said hearing; that the provision in Texas Rules Civil Procedure 63,' that leave of court must be had for amending pleadings within 7 days of trial applies to a trial on the merits, but not to a hearing of a motion for summary judgment. In support thereof it cites Green v. Smart, Tex.Civ.App., 333 S.W.2d 880; Archer v. Slcelly Oil Company, Tex.Civ.App., 314 S.W.2d 655, (Ref. N.R.E.), 159 Tex. 154, 317 S.W.2d 47; Hammett v. Fleming, Tex.Civ.App., 324 S.W.2d 70, (Ref. N.R.E.) and Womack v. Allstate Insurance Company, (Sup.Ct.), 156 Tex. 467, 296 S.W.2d 233.

Appellants contend that, notwithstanding the striking of said pleading, there remained pleadings, affidavits and evidence sufficient to raise the following fact issues: (1) Was the $10,070.00 payment by Fer-rier Brothers to Darr for rent on equipment? (2) Was Hill Brown’s subcontractor, or a partner, agent or employee? (3) Was Hill at the time he was working on the project a partner of the Browns and (4) was the conduct of the Browns in permitting Hill to do the work such that it would be unjust and inequitable to refuse Ferrier Brothers a recovery of the $10,-070.00 from the Browns, who caused the condition which required Ferrier Brothers to make said payment to Darr?

Appellants say that they submitted Darr’s invoice which recited that the $10,070.00 charge was for rental on equipment; that the deposition of Vincent showed that such payment was for rental on equipment and that Vincent, Ferrier Brothers’ Accountant and Office Manager, had been told by Darr that the $10,070.00' charge was for rent on equipment. They say that they thereby raised fact issues-by pleadings which remained and their affidavits. With reference to appellants’’ contention that Hill was not a qualified,, bona fide, subcontractor, they contend that a contractor is not permitted to subcontract more than half of his contract; that the Browns assigned their entire contract to Hill; that this was unlawful and, since Hill furnished no bond, the Browns and Hill became partners, or Hill was their agent or employee and, therefore, Ferrier Brothers were justified in withholding the-$10,070.00 from the Browns, regardless of whether Ferrier Brothers’ payment to Danr was for rent of equipment. Darr’s invoice was inadmissible. It was hearsay.. Vincent, Ferrier Brothers’ Office Manager and Accountant, did claim the $10,-070.00 paid by the Ferriers to Darr was for rent on equipment. But, all he knew about it was what Darr told him. This was not admissible against the Browns. Furthermore, he testified that he had heard the testimony that it was for the purchase of machinery, not for rent, and that he had no reason to doubt such testimony and that nothing in Ferriers’ record, except Darr’s invoice, showed it was for rent. Only Darr and Hill knew. Hill swore that the $10,070.00 note paid to Darr by Ferrier, for Hill, was given for the purchase price of machinery, nor for rental on machinery used on the job. Only Darr could refute this statement in Hill’s affidavit and appellants did not produce such an affidavit, or testimony, of Darr. The testimony of Vincent, the Ferriers’ representative, was to the effect that the Browns’ subcontract to Hill was satisfactory to Ferrier Brothers. Hill performed his subcontract to the satisfaction of the State and the Ferriers received full payment on their contract with the State. There was no evidence that Hill was a partner or employee of the Browns. There is no justification for appellants’ complaint that the Browns sublet to Hill their entire subcontract. The Highway Department’s contract with Ferrier Brothers, the prime contractor, may have required that the Ferriers perform SO percent of the work called for by their contract with the State. But, no contract or law making such a requirement of the subcontractors Brown has been pointed out or found.

Appellants’ original answer was filed on June 5, 1961. In it appellants made Hill a party and their then attorney filed an answer for him in which it was alleged that Hill was an independent contractor. Appellees’ motion for a summary judgment was filed on January 3, 1962. A copy was furnished Hill and appellants and they were given notice of a hearing thereof on January 15th. But, before that time the ■court directed all parties to appear on January 11th for a pre-trial hearing. All parties appeared on January 11th, and all motions, including appellees’ motion for a summary judgment, were taken up and ■considered at that time. On January 9th ■appellants had filed an amended answer ■and cross-action and a sworn answer replying to appellees’ motion for a summary judgment. The case had previously been set for trial on its merits several times. On at least three occasions the case had been continued by appellants. The last setting of the case for a trial on the merits was for January 16th. Appellants were notified thereof on December 19, 1961. At such pre-trial hearing on January 11th, the court reserved decision on appellees’ motion for a summary judgment. On January 16th, the day the case was set for trial on its merits, the court granted ap-pellees’ motion for a summary judgment. On January 15, 1962, appellants filed an amended answer to appellees’ motion for a summary judgment and attached an affidavit thereto. On that date they filed, without the court’s permission, their third amended answer and cross-action. Said last pleading was stricken, but appellants’ amended answer to appellees’ motion for a summary judgment was not stricken.

On January 16th, the day the case had been set for trial on its merits for the fourth or fifth time, appellants filed an application for a continuance. It was overruled. In said motion it was alleged that because Hill had previously claimed that the Browns were indebted to him on his subcontract but had more recently sworn that he was mistaken and that he had abandoned such claim that appellants believed some relationship existed between Hill and the Browns which had caused Hill to make such change and that appellants needed more time to investigate such relationship. The record showed that at least a month before Hill testified appellants knew about this change. The attorney who represented appellants during the first few months of the pendency of this suit, while Hill was claiming the Browns still owed him something on his subcontract, also represented Hill. The record shows appellants had adequate time to investigate such alleged relationship. The court did not abuse its discretion in overruling the motion for continuance.

With reference to the striking of appellants’ third amended answer and cross-action, appellees say that said pleading was simply a rehash of matters already before the court, with the addition of vague allegations of a partnership between Hill and appellees and that such contention had been raised, at least inferentially, by appellants’ previous pleadings and that it was distinctly raised in appellants’ amended answer to appellees’ motion for a summary judgment. They further say that said stricken answer was sworn to by appellants’ attorney and that the only injury appellants could possibly have suffered is that the court did not consider the stricken pleading as an affidavit in opposition to the affidavits and depositions of appellees; that appellants could not have been injured thereby because the stricken answer did not specifically deny anything asserted in ap-pellees’ affidavits and did not specifically allege any fact which contradicted appel-lees’ contention. The stricken answer disclosed that the matters alleged therein could not have been within the personal knowledge of appellants’ attorney, who swore to it. Since he could not have testified to such matters the answer could not have been considered as an affidavit under Texas R.C.P. 166-A. In Lawyers Surety Corp. v. Investors Mutual of Nu-eces, Inc., Tex.Civ.App., 353 S.W.2d 882, (Ref. N.R.E.), the court said

“The supporting affidavit filed by ap-pellee was not replied to or contradicted by any opposing affidavit filed by appellant. The affidavit of appellee, which was unanswered, was sufficient to require the court to render the summary judgment which it did. Appellant contends that its sworn answer filed on the day the motion for summary judgment was heard, was sufficient to contradict the supporting affidavit, was sufficient to show that there were fact issues to be decided, and that summary judgment was therefore improper. We do not agree. Rule 166-A, T.R.C.P., requires in effect that opposing affidavits must be served prior to the day set for the hearing of a motion for summary judgment. The amended answer filed by appellant on the day of hearing came too late to be regarded as an opposing affidavit. Furthermore, it is signed by one of the attorneys in the case, and does not show affirmatively that the attorney was competent to testify to the matters stated therein, as is required by the Rule.”

The stricken answer was filed too late to be considered as a controverting affidavit. In any event, appellants were not injured thereby. It did not contradict any material statement of fact in appellees’ affidavits and depositions supporting their motion for a summary judgment. At most, it raised legal conclusions. It is evident that appellants’ attorney was not competent to testify to any material fact alleged therein. They could not have been within his personal knowledge. See American Motors Acceptance Corp. v. Heckerman, Tex.Civ.App., 332 S.W.2d 345, (Writ Dis.), and Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948. The court did not err in. striking said pleading.

Appellants’ third point is that the court erred in rendering judgment for ap-pellees because there were material issues of fact. We have heretofore stated the issues of fact that appellants contend were raised. Appellees’ counter-point is to-the effect that their pleadings, depositions and affidavits demonstrate that there was no genuine issue of material fact and that appellants failed to discharge their burden of presenting evidentiary data raising any issue, or to justify their failure to do so. Appellees’ trial petition alleged that Fer-rier Brothers entered into a subcontract with the Browns to do the work in question ; that said work was completed in accordance with the terms of the contract and in a manner satisfactory to the Highway Department, These matters were not in dispute. In appellants’ original answer they, in effect, admitted such facts, but asserted that they could not pay $10,070.00 to appellees because Hill claimed appel-lees owed him that much money on his subcontract. Mr. Vincent, the accountant and office manager of Ferrier Brothers, testified by deposition that the Browns’ subcontract was timely and satisfactorily completed according to specifications; that it was accepted by the Texas Highway Department and that Ferrier Brothers received full payment for the job; that Fer-rier Brothers received final payment in April, 1961; that the Browns did everything they agreed to do, and that the only question was whether they could pay the $10,070.00 to the Browns because Hill was claiming the Browns owed him that much on the job. Appellees alleged they earned $397,484.90 and that $37,418.80 was due them and unpaid. These allegations were established by the affidavits and depositions tendered by appellees and were not disputed. Tersely stated, for a time there was one fact question in issue between the parties and that was relative to the duty of Ferrier Brothers to pay the Browns the sum of $10,070.00 which Ferrier Brothers had paid to Darr for Hill. This issue disappeared when it was shown by Hill’s affidavit that said money was not paid for rent on equipment; that the Browns owed him nothing and his admission that he owed Ferrier Brothers the $10,070.00, loaned to him to pay Darr. Appellees asserted a valid cause of action. All of the material allegations thereof were conclusively established by pleadings, depositions, admissions and affidavits. Appellants did not shoulder the burden that then rested upon them of presenting opposing evidentiary data raising a fact issue, nor did they excuse their failure to do so. In Gulf Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500, the Supreme Court, in an opinion by Judge Griffin, said

“When a motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A.
“Where the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense.’’

In Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 951, Judge Walker said:

“When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered.
“If the defendants expected to defeat the motion for summary judgment by showing an issue of fact as to whether the note was conditionally delivered, it was incumbent upon them to come forward with ‘evidence’ sufficient to raise that question.”

See also Allen v. Western Alliance Insurance Company, Tex.Sup., 349 S.W.2d 590, 594.

Appellants’ fourth and last point is that the court erred in rendering judgment for attorneys’ fees because they cannot be recovered in a suit of this kind. On the trial appellants did not concede that attorneys’ fees could be recovered. However, they stipulated that $7500.00 would be reasonable attorneys’ fees, if it should be held that attorneys’ fees were recoverable.

Art. 5160, par. A required Ferrier Brothers to execute a bond for the payment of labor and material. Paragraph (b) says that the payment bond of such a contractor as Ferrier Brothers shall be for the protection of all claimants supplying labor and material in the prosecution of the work provided for in such a contract. Paragraph B provides that every claimant who has furnished labor and material in prosecution of the work provided for in such a contract, in which a payment bond is furnished and who has not been paid in full therefor shall have the right, if his claim remains unpaid after the expiration of 60 days after the filing of his claim, “to sue the principal and the surety * * * on the payment bond * * * for the amount * * * unpaid at the time * * * of the institution of the suit.” Paragraph C defines a claimant as anyone who has a direct contractual relationship with the prime contractor to perform a part of the work, or to furnish labor or material, or both. Article 2226 provides that any person having a valid claim against another for personal services rendered, or for labor done or material furnished, or in suits founded upon a sworn account may present the same to such person and, if at the expiration of 30 days thereafter the claim has not been paid and he should finally obtain a judgment therefor, may recover reasonable attorneys’ fees. The appellees timely and properly presented their claims. It seems there is no question but that ap-pellees are entitled to recover reasonable attorneys’ fees from Ferrier Brothers and, since the amount of attorneys’ fees has been stipulated, that the court properly rendered judgment for attorneys’ fees. Any doubt as to appellees’ right to also recover attorneys’ fees from Ferrier Brothers’ surety is dispelled by the decision in United States for Use and Benefit of Caldwell Foundry & Mach. Co. v. Texas Construction Company, 5 Cir., 237 F.2d 705, wherein the court said

“Appellees do not raise the question, as well they might, of whether the Miller Act, 40 U.S.C.A. §§ 270a-270d, permits the imposition of attorney’s fees upon the sureties in payment bonds. Having ourselves raised up that straw man, we knock it down with the observation that, in suits under the Miller Act, the recovery of interest, costs, and attorney’s fees is governed by the state law. See Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 381, 37 S.Ct. 614, 61 L.Ed. 1206. The allowance of attorney’s fees under such a bond was fully considered and discussed in United States for Use and Benefit of Brady’s Floor Covering v. Breeden, D.C.Alaska, 110 F.Supp. 713, 715, and United States for Use and Benefit of Magnolia Petroleum Co. v. FI. R. Henderson & Co., D.C.W.D. Ark., 126 F.Supp. 626, 637; see also authorities collected in last cited case.”

The material portions of the Texas Statute, Art. 5160, par. A, has been taken from-the Miller Act.

The fourth point is overruled. The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Robert E. WOOD, Appellant, v. Carl SELF, Appellee.
    No. 16078.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 9, 1962.

      Evans, Pharr, Trout & Jones, and Bobby J. Moody, Lubbock, for appellant.
    LaVergne Guinn, Dallas, for appellee.
   DIXON, Chief Justice.

Robert E. Wood has appealed from an order overruling a plea of privilege whereby he sought to have a suit transferred from Dallas County to Lubbock County for trial.

Appellee Carl Self, himself a resident of Lubbock County, brought suit in Dallas County against three defendants: Robert E. Wood, also a resident of Lubbock County, Maywood Furniture, Inc., a corporation, with its office and principal place of business in Dallas County, and College Furniture Manufacturers, an association with headquarters in Lincoln, Nebraska, but with an agent in Keene, Texas.

In his unsworn petition Self alleged that he was about to re-enter the retail unpainted furniture business in Lubbock provided he could purchase stocks of unpainted furniture from Maywood Furniture Company, Inc., and College Furniture Manufacturers. Accordingly he placed orders, with the two last named companies. The orders were not filled. Self heard nothing from College Furniture Manufacturers, but he received a letter from Maywood Furniture Company, declining to fill his order.

A copy of the alleged letter is attached to appellee’s petition as an exhibit. The letter is signed “Lewis” by one Lewis Ratinoff, purportedly in behalf of Maywood Furniture Company, Inc. In substance the alleged letter states that Maywood Furniture Company has decided that it will not ship the merchandise Self had on order. This decision was reached because Robert E. Wood, also in the retail furniture business in Lubbock, had delivered an ultimatum to Maywood Furniture Company, Inc. either to sell to Self or to Wood, but not to both. Maywood Furniture Company in the face of this ultimatum had decided to sell only to Wood rather than to lose the Wood account by also selling to Self. Self pled conspiracy among the three defendants, in restraint of trade, and wrongful interference by Wood with contracts between Self and the other two defendants. He also pled several items of damage resulting from the alleged wrongful conduct of the defendants.

These allegations were repeated in substance in Self’s controverting affidavit, which incorporated the original petition by reference.

But what of the evidence offered in support of the above pleadings? At the hearing on the plea of privilege Self without objection introduced in evidence plaintiff’s original petition, with the exhibit attached thereto, and his controverting affidavit. The parties stipulated that Maywood Furniture Company, Inc., is a corporation with its office and place of business in Dallas, Dallas County, Texas and is a resident there.

No other evidence was introduced by plaintiff or defendants.

OPINION

In three points on appeal appellant contends that the trial court erred in overruling his plea of privilege because (1) plaintiff failed to prove by competent evidence that he had a cause of action against the defendant, Maywood Furniture Company, Inc., the only defendant alleged to be a resident of Dallas County; (2) plaintiff failed to prove that his cause of action against Maywood Furniture Company, Inc. was the same kind of action or was so closely connected with the case against Robert E. Wood that the two defendants might properly be joined in the same suit in Dallas County; and (3) plaintiff failed to prove by competent evidence that his alleged cause of action comes within one of the venue exceptions of Art. 1995, Vernon’s Ann.Civ.St.

Appellee contends that the case falls within subds. 4 and 23 of Art. 1995, V.A. C.S. therefore the trial court properly overruled appellant’s plea of privilege.

To sustain venue under subd. 4 a plaintiff must (a) plead a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendant so intimately connected with the cause of action against the nonresident defendant that the two causes may he joined under the rule preventing a multiplicity of suits; (b) he must plead and prove by competent evidence that one of the defendants is a resident of the county where venue is claimed; and (c) he must plead and prove by competent evidence a cause of action against the resident defendant. Stockyards Natl. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Kirksey v. Warren, Tex.Civ.App., 348 S.W.2d 33; 43-B Tex.Jur. 433.

As to the above requirement (a), the plaintiff’s petition alone may be looked to in order to establish nature of the suit. Appellee’s petition meets this requirement. Appellant’s second point on appeal is overruled.

As to requirement (b), the stipulation entered into between the parties as to the residence of Maywood Furniture Company, Inc. meets the requirement.

But as to requirement (c), we must hold that the plaintiff Self has failed to establish by competent evidence a cause of action against Maywood Furniture Company, Inc. the defendant resident of Dallas County.

Plaintiff introduced in evidence his petition with the attached exhibit, and his controverting affidavit. No other evidence was introduced to support his cause of action against Maywood Furniture Company, Inc. Pleadings, including sworn pleadings, are hearsay. Fertitta v. Toler, Tex.Civ. App., 43 S.W.2d 467 (reversed on other grounds, Tex.Com.App., 67 S.W.2d 229); Owens v. Jackson, Tex.Civ.App., 35 S.W.2d 186; Hargis v. Moxon, Tex.Civ.App., 34 S.W.2d 353; 24 Tex.Jur.2d 68; 31 C.J.S. Evidence § 194, pp. 930-932.

Unless it comes within one of the exceptions to the hearsay rule, hearsay evidence has no probative force, even when it is admitted without objection, as it was in this case. Texas Company v. Lee, 138 Tex. 167, 157 S.W.2d 628; Knapik v. Edison Bros. Inc., Tex.Civ.App., 313 S.W.2d 335, 337; 24 Tex.Jur.2d 89. Appellee’s pleadings including the attached unauthenticated copy of a letter as an exhibit do not constitute evidence. Whitehead v. City Natl. Bank, Tex.Civ.App., 140 S.W.2d 967; Yantis v. Gilliam, Tex.Civ.App., 62 S.W.2d 173; Jones, et ux. v. Womack-Henning & Rollins, Inc., Tex.Civ.App., 53 S.W.2d 635 (Syl. 4). Appellant’s first point on appeal is sustained.

Under the circumstances of this case ap-pellee Self is not entitled to maintain venue in Dallas County under subd. 23 of Art. 1995, V.A.C.S. For one reason, he has failed to prove a cause of action against Maywood Furniture Company, Inc., the resident corporation defendant. Lloyds Casualty Inc. v. McCrary, 149 Tex. 172, 229 S.W.2d 605. Appellant’s third point on appeal is sustained.

The judgment of the trial court is reversed and judgment is here rendered for appellant sustaining his plea of privilege with instructions to the trial court to order the cause transferred to Lubbock County for trial.


text:
    STATE of Texas, Appellant, v. T. A. MANNING & SONS, INC., Appellee.
    No. 16155.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 26, 1962.
    Will Wilson, Atty. Gen., and Bob E. Shannon, Asst. Atty. Gen., Austin, for appellant.
    Henry Klepak, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from an order denying a temporary injunction in a quo warranto proceeding instituted by the State of Texas, appellant herein, against T. A. Manning & Sons, Inc., appellee, a Dallas insurance agency corporation. Art. 1302, § 5.14 of the Texas Miscellaneous Corporations Laws Act authorizes the Attorney General to file quo warranto or other appropriate proceedings to forfeit the charter or cancel the permit of any corporation when he is convinced the corporation is insolvent.

Art. 1.02(16) of the Texas Business Corporation Act, V.A.T.S. defines insolvency as follows: “ ‘Insolvency’ means inability of a corporation to pay its debts as they become due in the usual course of its business.”

The trial court had granted an ex parte restraining order against appellee. At the hearing to determine whether the restraining order should be made into a temporary injunction the State presented the testimony of five witnesses. After the State had rested its case, appellee moved for judgment in its favor. The motion was sustained and a decree was entered denying the temporary injunction.

The testimony offered by the State on the issue of insolvency is not positive or certain. One witness, an examiner for the State Insurance Board, testified that appellee had liabilities of $1,245,713.90 and assets of only $389,680.90. But on cross-examination he admitted that he had included as a liability an alleged claim of $969,130.58 against appellee by the Receiver of Lumbermens’ Insurance Company. The books of appellee showed no such claim. No suit had been filed on the claim. So far as the witness knew no demand for the payment had been made. The witness’ knowledge was based on a letter he had seen from the Receiver to the Insurance Board in which letter the Receiver said such a claim existed. The witness conceded that if this alleged claim and other questioned claims were excluded, and if certain assets claimed by appellee were included, appellee’s assets would exceed its liabilities by almost $200,000.00.

Other witnesses testified to certain alleged past due accounts payable, but on cross-examination admitted that the accounts were not really delinquent, as appellee had 90 days time to remit insurance premiums collected; and, further, that in many instances there was a genuine dispute as to the amount due, if any, by appellee. The dispute revolved around cancellations of policies, which cancellations required adjustments involving unearned premiums.

Rather than unduly lengthen this opinion we shall not detail the several other instances when the State’s evidence is vague •on the issue of insolvency.

It has long been the rule that the granting or refusing of a temporary injunction lies within the discretion of the trial court and the order of the court will not be reversed on appeal in the absence of an abuse of discretion. See 31 Tex.Jur.2d 345 and the many cases there cited.

In the light of the evidence adduced at the hearing we shall not say that the trial judge abused his discretion in refusing to grant the temporary injunction sought by appellant.

The judgment of the trial court is affirmed.


author: LANGDON, Chief Justice.

text:
    AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Appellant, v. TEXAS REAL ESTATE COMMISSION et al., Appellees.
    No. 5558.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1962.
    Rehearing Denied Nov. 28,1962.

      Scott, Hulse, Marshall & Feuille and Charles Jones, El Paso, for appellant.
    Collins, Langford & Pine, El Paso, for appellees.
   LANGDON, Chief Justice.

This suit has its origin in a prior suit and judgment resulting from action in which the plaintiff-appellee, Rodrigo V. Bernal, was defrauded of a sum of money in excess of $2,000.00 by one Bennie P. Barela, a licensed real estate salesman, who wrongfully converted appellee’s money to his own use. The wrongful conversion occurred between the months of April and December, 1959, and was not discovered by appellee until December 20, 1959. After discovery of the fraud, appellee accepted and received two promissory notes from Barela. Both notes were executed by Barela, were payable to the order of Bernal, and bore interest from their respective dates until maturity at the rate of six per cent per annum. The first note was for the principal sum of $1,604.00, bore the date of December 31, 1959, and became due and payable on April 1, 1960. The second note, in the principal sum of $828.00, was signed by both Barela and his wife, bore the date of February 9, 1960, became due and payable on May 1, 1960, and was secured by a chattel mortgage on certain household furnishings belonging to the Barelas. On April 7, 1960, the first note then being past due and unpaid, appel-lee instituted suit against Barela charging him with fraud and wrongful conversion in the real estate transaction. On May 4, 1960 appellee obtained a default judgment against Barela in said suit for actual damages in the amount of $2,363.00, and for exemplary damages in the amount of $2,000.00.

Appellant in the instant suit is American Casualty Company of Reading, Pennsylvania, the surety on a Real Estate Salesman's License Bond made and executed by Bennie P. Barela, as principal, and the bonding company, as surety, pursuant to Article 6573a, section 11, of Vernon’s Annotated Civil Statutes of Texas. The bond was in the sum of $2,000.00 payable to the Texas Real Estate Commission for the use and benefit of any injured party. The obligation was such that the principal and surety became jointly and severally bound to pay any judgment recovered by any person in any suit for damages or injury caused by the principal’s violation of any of the provisions of “The Real Estate License Act” of the State of Texas.

On June 3, 1960, following the entry of the default judgment against Barela, appel-lee Bernal, by way of a demand letter written by his attorney, notified appellant bonding company of the judgment taken against Barela and made demand therein against said appellant for the sum of $2,000.00 under the terms of the “Real Estate Salesman’s License Bond” mentioned above.

On January 12, 1961, both Barela and the bonding company having failed to pay the judgment or any part thereof, appellee, joined by the Texas Real Estate Commission, as plaintiffs, instituted the instant suit against appellant, as surety, and in the alternative as indemnitor, on the bond executed by it pursuant to section 11 of the Real Estate License Act.

Trial was had to the court without the intervention of a jury. After a hearing the trial court entered judgment for plaintiff-appellee for the sum of $2,000.00, plus the additional sum of $130.00 interest. Defendant-appellant has perfected its appeal from that judgment.

Appellant has based its appeal upon two points of error, as follows:

(1) The trial court erred in rendering judgment for the plaintiff in this case for the reason that the bond upon which this action was brought is a statutory surety bond and constitutes a contract of suretyship wherein the defendant surety was fully released and discharged upon the plaintiff’s taking from the principal, without the consent of the defendant surety, promissory notes extending the time for payment of the sums misappropriated by the principal and altering the sums by providing six per cent interest per annum thereon.
(2) The trial court erred in rendering judgment for interest in this cause because it resulted in a recovery by plaintiff of an amount in excess of the specific contractual provisions of the bond.

The argument advanced by appellant in support of its first point is based primarily on the contention that the bond involved here was a contract of suretyship, and not one of insurance or indemnity, and that appellant, in its capacity as a surety on such bond, was relieved of any liability thereon when appellee, after having learned that Barela had misappropriated $2,432.00 of his (appellee’s) money accepted the two notes and then looked for payment of the obligation, not through the bond upon which appellant was obligated, but through the payment of the notes; the acceptance of which changed the nature of the principal’s obligation and also extended the time for the payment of same and provided for the payment of interest thereon. Appellant asserts that appellee’s acceptance of the two notes constituted a new transaction and created an entirely different obligation from that created by the execution of the bond upon which the appellant had agreed to become bound as a surety.

At the outset — while we .recognize the authorities cited by appellant and their application in suretyship cases — we point out that we do not consider such cases applicable to the facts of this case.

The bond here is a statutory bond required by the Texas Real Estate Commission as a condition precedent to the granting of a real estate salesman’s license to any applicant. The liability of both the principal and the surety in such bonds must be measured by the terms of the instrument when construed with .reference to the purposes contemplated by the law requiring the bond. All provisions of the statute are deemed incorporated within the terms of the bond, and the sureties are considered as having known the law and as having executed and delivered the bond in reference thereto. While the form of all such statutory bonds is substantially the same, the legal effect of the bonds varies with the purposes contemplated by the statute requiring the bond. Although the bond may resemble a contract of suretyship in that it is frequently written in a form having a nominal surety, principal and obligee, it is unquestionably more than a contract of suretyship.

It has long been the law in Texas that in determining whether a bond is a contract of suretyship or one of insurance, courts must consider the substance rather than the form of the contract. Southern Surety Co. v. Austin, 17 S.W.2d 774 (Tex. Com.App.); American Indemnity Co. v. Mexia Indep. School Dist., 47 S.W.2d 682 (dis’m.) (Tex.Civ.App.).

The loss sustained by appellee was allegedly caused by the principal’s violation of certain provisions of the Real Estate License Act, particularly subsections (1), (2), (5) and (17) of section 16 of the Act designating certain prohibited conduct on the part of real estate salesmen and brokers, as follows:

“(1) Knowingly making any substantial misrepresentation; or
“(2) Making any false promises with intent to influence, persuade or induce ; or * * *
“(5) Failure within a reasonable time to account for and/or remit any moneys coming into his possession which belong to others, or the commingling of moneys belonging to others with his own funds; QJ. ^ ⅜ ⅝
“(17) Offering real property for sale or for lease without the knowledge and consent of the owner or his authorized agent, or on any terms other than those authorized by the owner or his authorized agent; * * * if

The purpose of the bond was to guarantee the fidelity and honesty of the real estate salesman in his dealings with the public, and to insure and indemnify any member of the public against damages or injury caused by a violation of the Act by undertaking to “pay any judgment recovered by any person in any suit for damages or injury caused by a violation of this Act. * * * ” We believe, therefore, that the contract was one of insurance or of indemnity, and was not one of surety-ship.

The bond bound the surety company (appellant) to pay any judgment recovered for damages or injury sustained by reason of the principal’s violation of any provision of the Act, including damages or injury caused by acts of dishonesty on the part of the principal, such as those enumerated under section 16 of the Act. Thus, the obligation of the indemnitor is found in the contract signed by it, and not in the transaction between principal and the ap-pellee which resulted in a law suit and a judgment against the principal, which he failed to pay. We think it is immaterial under the facts of this case that the appellee accepted notes from Barela in an amount equal to the funds previously and wrongfully converted by Barela from appellee. When Barela failed to pay the first note, suit was filed — not on the notes, but on the previous cause of action arising out of Barela’s violation of the provisions of the Real Estate License Act. The judgment entered thereon (when Barela failed to pay it) determined the amount of the damages or injury suffered by appellee, and became the measure of the indemnitor’s loss and fixed the extent of the indemnitor’s liability under the bond. The notes involved here (particularly in view of their conditional acceptance by appellee, as found by the court) did not alter the terms of the indemnity contract, and did not change the liability of the indemnitor thereunder. Eller v. Erwin, 265 S.W. 595 (dis’m.) (Tex.Civ.App.) ; 43 A.L.R. 1368.

We believe appellant’s first point should be overruled.

Appellant’s second point is directed against that part of the trial court’s judgment allowing interest in the sum of $130.00 because it resulted in a recovery by appel-lee of an amount in excess of the specific contractual provisions of the bond.

We consider the bond involved here to be in the nature of an official bond not materially unlike those of public officers. In such cases the weight of modern authority supports the view that interest may be recovered against the surety from the date of the notice to such surety of the breach, or from the date of a demand on the surety to make good such breach.

“Ordinarily, when a cause of action on an official bond arises in favor of a third person, he is entitled to recover interest. And although the penalty of the bond fixes the limit of the liability of the surety at the time the liability arises, yet according to many authorities if the principal or surety fails to discharge that liability when it matures, interest may be allowed on the amount from the time the liability arises, even if the amount of recovery shall exceed the penalty.” (Emphasis supplied.) (43 Am.Jur. 185, Public Officers, sec. 416, and authorities cited.)

It is undisputed that appellee did notify appellant by letter dated June 3, 1960, of the judgment taken against Barela, and made demand therein against appellant for the sum of $2,000.00, which appellant failed to pay. The interest allowed by the trial court was from the date of the demand down to the time of the judgment in the instant case. Under these facts we are of the opinion that appellee is entitled to recover interest as damages for the detention of his money, if not on the bond itself. Farmer’s State Bank v. Brazoria County, 275 S.W. 1103 (wr. ref.) (Tex.Civ.App.); Collins et al. v. Tarrant County, 242 S.W. 1105 (Tex.Civ.App.).

Appellant’s Point Two is accordingly overruled.

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


author: BOYD, Justice.

text:
    John STOCKS, Guardian of the Estates of W. H. Stocks et ux., Appellant, v. BAPTIST GENERAL CONVENTION OF TEXAS, Appellee.
    No. 16363.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 2, 1962.

      Ben Hagman, Weatherford, for appellant.
    Will Wilson, Atty. Gen., Ben M. Harrison and Joe A. Osborn, Asst. Attys. Gen., Austin, John P. Ritchie, Mineral Wells, Burford, Ryburn & Ford and H. Sam Davis, Jr., Dallas, for appellee.
   BOYD, Justice.

W. H. Stocks, Sr., and wife Effie Stocks brought this suit by and through John Stocks, Guardian of their persons and estates, against the Baptist General Convention of Texas, to cancel a deed executed by Mr. and Mrs. Stocks on February 1, 1955, purporting to convey to The Baptist General Convention of Texas, Trustee, for $10.00 “and other good and valuable consideration”, approximately 1,000 acres of land, and retaining a life estate in said land. On the same day the grantors signed an instrument styled “TRUST AGREEMENT” purporting to “grant, assign, deliver and convey” to The Baptist General Convention of Texas as Trustee, to establish the trust therein provided for, the same property described in the deed.

The Baptist General Convention of Texas filed their original answer on September 6, 1961, the day after a default judgment was rendered, cancelling the deed. No service was had on the Attorney General.

On September 30, 1961, the Convention filed its amended motion for new trial, which was overruled on November 21, 1961, whereupon the Convention gave notice of appeal. No appeal, however, was perfected, but the Convention filed a writ of error bond on March 2, 1962.

On December 22, 1961, the Attorney General filed a motion to set aside the judgment and praying that he be made a party to the cause and allowed to file an answer and that the cause proceed as though said default judgment had not been rendered. The Attorney General’s motion to set aside the judgment was sustained March 2, 1962. From the order setting aside the default judgment Mr. and Mrs. Stocks, through their guardian, have appealed.

The “TRUST AGREEMENT” contained the following provisions:

“This conveyance and transfer is made IN TRUST for the following uses and purposes, to-wit:
“1. After the death of both Trustors, an endowment shall be created and administered by our Trustee with the net income therefrom being distributed annually to the Baptist General Convention of Texas for use in the said Convention’s mission program in the area now included in the Parker Association.
“It is our desire, but it is not mandatory, that the said Convention cooperate with a committee composed of the Moderator of said association, the associational missionary, and the pastor of the Bennett Baptist Church, Bennett, Texas, in the distribution of said income within the said area for the purposes aforesaid. It is our desire that first consideration be given to the welfare of the said Bennett Baptist Church and that special attention be gjven to the welfare of elderly Baptist preachers residing within the said area and weak Baptist Churches affiliated with the said Convention and located within the said area.”

Article 4412a, Vernon’s Ann.Tex.Civ.St., is in part as follows:

“Section 1. As used in this Article, the term ‘charitable trust’ includes all gifts and trusts for charitable purposes.
“Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
“To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust * * *.
“Sec. 4. A judgment rendered in any suit or judicial proceeding referred to in this Article without service or process upon the Attorney General shall be void and unenforceable. Any such judgment shall be set aside upon motion of the Attorney General filed at any time thereafter.”

We think the order setting aside the default judgment is an interlocutory judgment from which no appeal will lie. Article 2249, V.A.T.S.; Palmer v. D. O. K. K. Benevolent and Insurance Association, 160 Tex. 513, 334 S.W.2d 149; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Mesta v. Grubert, Tex.Civ.App., 312 S.W.2d 528; Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022; Lynn v. Hanna, Tex.Civ.App., 273 S.W. 339, affirmed, 116 Tex. 652, 296 S.W. 280. In Lynn v. Hanna, the Court of Civil Appeals said: “This case still stands for trial on its merits on the docket of the district -court in Dallas county. If it was error to set aside the judgment entered on the 8th day of December, 1923, because, as contended by appellants, no motion for a new trial could then be filed or considered by the court, and the motion on which the court acted does not contain the essential requirements of a bill of review, such error can only be reviewed by this court after the final disposition of this case on its merits.”

The appeal is dismissed.


author: McDONALD, Chief Justice.

text:
    FROST NATIONAL BANK OF SAN ANTONIO, Appellant, v. Ralph S. MITCHELL, Appellee.
    No. 4051.
    Court of Civil Appeals of Texas. Waco.
    Nov. 8, 1962.

      Robert I. Wilson, Kerrville, for appellant.
    Gordon L. Hollon, Boerne, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment that plaintiff take nothing, in a suit on a note. Dent Taylor, as original maker, with A. W. West as surety, borrowed $3000 from the First National Bank of Bandera on 7 March 1949, and executed a note therefor. The record reflects that Vance West, son of A. W. West, actually received the money, and that Dent Taylor only lent his name as an accommodation, (because Vance West had already borrowed the “legal limit” from the bank). In Jime 1949 Vance West, by Bill of Sale, sold his interest in á business called “Playland Cafe,” together with all fixtures and equipment (which were listed), to defendant Mitchell. As a part of the consideration Mitchell assumed payment of the $3000 note above. Thereafter the note was renewed 7 times, and each time Mitchell signed such as a co-maker. Thereafter, in July 1954, the Bandera Bank demanded payment of A. W. West, who paid same off, and received from the bank an assignment of the note.

West instituted this suit against Mitchell for the $3000 principal, interest paid, and attorneys’ fees. West died during pendency of the suit, and his executor, Frost National Bank, was substituted as plaintiff.

Defendant answered (among other things) that the transaction whereby he assumed payment of the note was an illegal sale of gambling equipment and the transaction was illegal and the note unenforceable and void.

Dent Taylor testified that the proceeds of the note as originally executed went for the purchase of gambling equipment and that A. W. West was aware of this fact. The Bill of Sale whereby Mitchell assumed the note lists among several pages of equipment, several “SLOTS”.

Trial was to a jury which found that A. W. West signed the original note for the benefit of his son Vance West, as an accommodation party; that Mitchell did not assume payment of such note; that Mitchell signed the renewal notes as an accommodation party; that A. W. West signed the renewal notes as an accommodation party; that Vance West received the money for the purpose of purchasing slot machines; that A. W. West, when he signed the original note, had knowledge that the money was for the purpose of purchasing gambling devices and slot machines by Vance West; and that the bank was unaware that the loan was for the purchase of slot machines.

The Trial Court entered judgment that the plaintiff take nothing.

Plaintiff appeals, contending that the Trial Court committed error in the application of the substantive law to the facts, and in not granting plaintiff’s motion for instructed verdict.

The record reflects that A. W. West, in 1949, signed the original note as surety to Dent Taylor, who in turn signed as an accommodation to get money for Vance West; that Vance West “used the money to purchase slot machines which were used for gambling purposes in Bandera County”; that A. W. West knew that the purpose of the execution of the note was for the purchase of the slot machines. Thereafter, in 1949, Vance West sold a cafe business and certain equipment, including a number of “slots”, to defendant Mitchell, and Mitchell assumed payment of the foregoing note as a part of the consideration. Further, Mitchell signed as a co-maker on 7 subsequent renewals of the note at the bank, (as did A. W. West). The Bank finally demanded payment of the note of A. W. West (because they knew he was solvent), and he paid the note, and took an assignment from the Bank.

The question presented is twofold: 1st) whether plaintiff is precluded from recovery because he had knowledge that the proceeds of the original note were to be used for purchase of gambling equipment; and, 2nd) whether the assumption by defendant as obligor in the bill of sale is rendered invalid by the listing of “slots” in such bill of sale.

The test of whether a demand connected with an illegal transaction may be enforced at law is whether or not a case may be established without reliance on the illegal transaction. The tendency of the decisions in this State is to not hold a contract invalid on the mere ground that one party may have known of an intention on the part of the other to use the subject matter of the contract for an unlawful purpose. Pioneer Mutual Compensation Co. v. Diaz, Tex.Com. App. adopted 142 Tex. 184, 177 S.W.2d 202; Stone v. Robinson, Tex.Com.App. adopted Tex.Sup.Ct., 234 S.W. 1094.

The mere fact that a demand is incidentally shown to be connected with an illegal transaction does not necessarily defeat a right of recovery. Tubb v. Kramer Bros. Nurseries, CCA, n. r. e., Tex.Civ.App., 237 S.W.2d 680.

Applying the rules of law to the facts, it is our view that the original transaction whereby the Bandera Bank loaned the $3000 on the note signed by Dent Taylor and A. W. West is not rendered illegal as to A. W. West, simply because he may have known that the money was to be used by Vance West to purchase slot machines. Moreover, no reliance on the illegal transaction is here present.

When defendant Mitchell assumed the payment of such note, and himself signed as a co-maker some 7 times in renewal of such note, he as a matter of law became the principal obligor, and as such, liable on such note to the Bandera Bank, (and to A. W. West as assignee of the Bandera Bank, after having paid off such note), unless the listing of the “slot machines” among the equipment sold with the cafe by Vance West to Mitchell renders same illegal.

There is no showing that the “slot machines” sold by Vance West to Mitchell were the same ones purchased with the proceeds of the original $3000 note, and no showing that these “slot machines” were to be used for gambling purposes, or that they were ever in fact used for gambling purposes. The sale was consummated in 1949. Article 642a, Vernon’s Ann.P.C. (relied on by defendant), which makes the sale and possession of “slot machines” a felony, was not enacted until 1951. Under the law as existing in 1949 a “slot machine” was not illegal unless proof was made that it was illegally used for gambling. Hightower v. State, CCA, Er. ref., Tex.Civ.App., 156 S.W. 2d 327. Both questions presented are answered in the negative. The Trial Court should have granted plaintiff’s motion for instructed verdict.

Plaintiff has complained of the action of the Trial Court in admitting the testimony of Dent Taylor, on the ground that he was attorney for A. W. and Vance West, and that such testimony constituted a privileged communication. The record reflects that while Taylor had been the Wests’ attorney on occasion, he was not their attorney in connection with the matters testified to by him, and such matters were not privileged, and were properly admitted into evidence. The point is overruled.

The judgment of the Trial Court is Reversed and the cause Remanded for computation as to amount due plaintiff on the not sued on and for judgment for plaintiff for such amount. Reversed and remanded.


author: RENFRO, Justice.

text:
    VERGAL BOURLAND HOME APPLIANCES et al., Appellants, v. ALTHEIMER & BAER, INC., Appellee.
    No. 16359.
    Court of Civil Appeals of Texas. Port Worth.
    Oct. 26, 1962.
    Rehearing Denied Nov. 30, 1962.

      Crocker & McDonald, and Toy Crocker, Fort Worth, for appellants.
    Ungerman, Hill, Ungerman & Angrist, Dallas, Thompson, Walker, Smith & Shannon, and Wyndall R. Johnson, Fort Worth, for appellee.
   RENFRO, Justice.

On May 1, 1959, Altheimer & Baer, Inc., filed suit against Vergal Bourland Home Appliances, a corporation, and Vergal Bourland individually on trade acceptances issued in October, 1957, and May, June and August of 1958, which represented unpaid balances for the purchase price of merchandise sold to defendant corporation for three sales promotions conducted by defendant corporation in September, 1957, April and August of 1958. Defendant Bourland was sued as guarantor.

The defendant Vergal Bourland Home Appliances filed an answer and cross-action on June 4, 1959.

No citation was ever served on the plaintiff on the cross-action. The plaintiff filed an answer, which included a plea of limitation, to the cross-action on October 5, 1961.

The defendant corporation was adjudged a bankrupt on January 20, 1960. The bankruptcy action is pending.

The defendant corporation’s cross-action was sold by the trustee in bankruptcy to Elmo Irby on February 21, 1961. In January, 1962, Irby was substituted for the defendant corporation as cross-plaintiff in the cross-action against plaintiff.

The bases for the cross-action filed against plaintiff by the corporate defendant were alleged misrepresentations concerning the quality of the merchandise, that the merchandise was defective and that because of the above the corporation had suffered loss of business.

Plaintiff filed a motion and supplemental motion for summary judgment predicated upon the grounds that the cross-action was barred by the two year statute of limitation, the cross-action was precluded by the express provisions of the written purchase orders given by the corporation to plaintiff, and by reason of the forfeiture for nonpayment of franchise taxes, the corporation and its assignee, Irby, were prohibited by law from maintaining the cross-action in any court of this state.

On January 30, 1962, the court entered a partial summary judgment in which it decreed that, as to said cross-action, “there is no genuine issue as to any material fact” and that plaintiff was entitled to judgment thereon “as a matter of law on each and all of the grounds set forth in said motion and the supplement thereto on file herein.”

The plaintiff then filed a motion in which it pointed out that the nature of the cross-action was entirely separate, distinct and different from the principal cause and asked for a severance of the cross-action from the principal suit.

The court thereupon entered an order of severance and directed the clerk to create separate docket sheets for each of said causes. On January 30, 1962, the previous partial summary judgment was entered as the final judgment of the court as to the cross-action in the severed cause.

The record does not reveal any exception to the severance by defendants.

The defendants contend the court erred in severing the cross-action from the principal cause and in entering final judgment on the cross-action in the severed cause. The gist of their argument is to the effect that their cross-action was a compulsory counterclaim and not severable from the main action. They rely upon Ulmer v. Mackey, Tex.Civ.App., 242 S.W.2d 679; John F. Buckner & Sons v. Arkansas Fuel Oil Corp., Tex.Civ.App., 301 S.W.2d 325; and Allison v. Gulf Liquid Fertilizer Co., Tex.Civ.App., 353 S.W.2d 512.

None of the above cases involved the situation we have before us in this case, namely, a summary judgment holding that cross-plaintiffs as a matter of law were barred from recovery on the cross-action.

In Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, the court held: “ * * * it was within the judicial power of the court to determine that the cause was severable and to sever the same accordingly. The order of severance is subject to being set aside on appeal, but until this is done it effectively separates the controversy into two causes. A judgment which fully adjudicates one of the severed causes is appealable even though the entire controversy as it existed prior to the severance is not determined thereby.” Also, in the above case the court held that since the defendant did not object to the severance, he was not in position to complain of a mere error in granting the same.

In the instant case the court had the judicial power to sever the cross-action and enter final judgment. He did enter a final judgment in the cross-action, and, having done so, the judgment so entered was ap-pealable.

If the trial court was correct in his holding that all three grounds, or any one of the grounds upon which the summary judgment was based, entitled plaintiff to judgment as a matter of law on the cross-action, then the severance and entry of a final judgment thereon was not error.

We hold the court was correct in holding that the cross-action was barred by the two year statute of limitation.

A cause of action based on misrepresentation is controlled by the two year statute of limitation. Lacy v. Carson Manor Hotel, Inc., Tex.Civ.App., 297 S.W.2d 367.

Bourland, who was president of defendant corporation when the merchandise was purchased, by deposition testified that he knew of the misrepresentation and defects or most of them within a matter of days after the various shipments in September of 1957 and April and August of 1958. The cross-action was filed June 4, 1959. However, there was never any attempt to have citation on the cross-action issued or served on plaintiff. Plaintiff did not file an answer to the cross-action until October 5, 1961, or more than two years after Bour-land, by his own deposition, knew of the matters set forth in the cross-action. The mere filing of the cross-action did not toll the running of the statute of limitation. In Landers v. Jordan, Tex.Civ.App., 126 S.W.2d 677, the court stated: “If there is a principle of law that is well established in this state it is that the mere filing of a petition by the plaintiff is not all that is required to toll the statute of limitations but there must also be a bona fide intention that citation thereon shall at once be issued and served upon the defendant.” The same principle applies to cross-actions. Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6.

The defendants, however, contend that under § 11, sub. e of the Bankruptcy Act (U.S.C.A., Vol. 11, p. 195, § 29), limitation was suspended for a period of two years subsequent to January 20, 1960 (the date on which the corporate defendant was adjudicated to be bankrupt) upon any claim against which the period of limitation fixed by law had not expired at the time of the filing of the petition in bankruptcy, in this instance November 2, 1959.

Said section provides that a receiver or trustee may, within two years subsequent to the date of adjudication or within such further period of time as the Federal or State law may permit, institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.

The instant cross-action suit was not instituted by a receiver or trustee, and was not filed in behalf of the estate. It was filed by the Bourland corporation for alleged damages. The trustee did not intervene in the cross-action and was not made a party thereto. His only action in regard to the cross-action, in so far as the record reveals, was to sell the cross-action to a third party, namely, cross-plaintiff Irby for $250.00.

Section 11, sub. c, provides that a receiver or trustee may, with the approval of the court, be permitted to prosecute as receiver or trustee any suit commenced by the bankrupt prior to the adjudication, with like force and effect as though it had been commenced by him.

The trustee did not enter the suit, but, as stated, sold the cross-action to cross-defendant Irby, attorney for the bankrupt.

From the record before us we conclude that the cross-action was barred by the two year statute of limitation.

The record shows that the corporate defendant’s right to do business was duly forfeited on July 2, 1958, for failure to pay franchise tax and no franchise taxes have been paid since that date, and the right to do business has not been reinstated. It is stated in 14 Tex.Jur.2d, p. 675, § 582, that, under the provisions of Art. 12.14 of Title 122A, Taxation-General, R.C.S., V.A.T.S., when the right to do business has been forfeited, a corporation is denied the right to any affirmative relief in the courts, either as a party plaintiff or by way of cross-action in a suit wherein it has been made a defendant.

As of the date the corporate defendant filed the cross-action, its right to file for affirmative relief had been forfeited, and was not thereafter reinstated.

Under the facts of this case, as reflected in the record, we see no reason why the inhibition of the statute should not apply to the cross-action in question.

Being of the opinion that the summary judgment on the cross-action was proper on the grounds of limitation and the franchise forfeiture, the judgment is affirmed.


text:
    J. D. WILLIAMS, Individually and d/b/a Salvage Lumber Yard, Appellant, v. Oswald SPERLICH, Appellee.
    No. 4061.
    Court of Civil Appeals of Texas. Waco.
    Nov. 15, 1962.

      Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, on appeal only, for appellant.
    House, Mercer, House & Brock, San Antonio, for appellee.
   WILSON, Justice.

Appellant’s eight points, in this personal injury case, assert the court erred in overruling objections to the charge, or erred in instructions given.

No objections to the charge appear in the record. They may not be first urged here, and were waived. Rules 272, 274, Texas Rules of Civil Procedure.

It is urged there is no evidence of reasonableness of cost of hearing aids, included as an element of damages, and no •evidence of causal connection between the .accident and alleged loss of hearing.

The only assignment in the motion for mew trial which could have called the absence of evidence of reasonableness to the •court’s attention was that which alleged “the jury was guilty of misconduct” in considering medical expenses, “although there was no competent evidence admitted at the -trial as to the amount of such medical expenses”. The assignment does not support the point under Rules 320, 321.

The only assignments in the motion for new trial which sought to specify the ground of absence of evidence of causal connection were to the effect that the court erred in admitting, “over the objection of defendant”, evidence concerning loss of hearing “which was not supported by competent medical evidence”; that the evidence of one witness was a conclusion; and the evidence admitted should have been stricken. These allegations do not specify the ground upon which reversal is asked under Rule 320. Appellant did not object to the evidence which was admitted, and did not move to strike it. Counsel on appeal did not participate in the trial. No point of error is preserved for review. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; Wagner v. Foster, 161 Tex. 333, 338, 341 S.W.2d 887, 890; City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 759, 81 A.L.R.2d 1180.

Affirmed.


text:
    Jerrel Spencer LAMBETH, Appellant, v. TEXAS UNEMPLOYMENT COMPENSATION COMMISSION and Chance Vought Aircraft, Inc., Appellees.
    No. 4042.
    Court of Civil Appeals of Texas. Waco.
    Oct. 18, 1962.
    Rehearing Denied Nov. 21, 1962.

      William F. Billings, Dallas, for appellant.
    Will Wilson, Atty. Gen., Sam Lane, Asst. Atty. Gen., Austin, Thompson, Knight, Wright & Simmons and Timothy Kelley, Dallas, for appellee.
   WILSON, Justice.

The question before us is whether the court properly dismissed an appeal from a decision of the Commission under Art. 5221b — 4(i), Vernon’s Ann.Tex.Civ.St., for want of jurisdiction on the ground appellant’s employer was not joined as a party within 10 days after the decision became final.

The statute provides that an aggrieved party may obtain judicial review of a decision by commencing an action against the Commission within 10 days for review of its decision “in which action any other party to the proceeding before the Commission shall be made a defendant.”

Appellant commenced an action in Justice Court against the Commission within the 10-day period, but first joined his employer as a party by amended pleading more than a month after that period had expired. The County Court at Law dismissed the suit on appeal.

The employer, a party to the proceedings before the Commission, was an interested party to an appeal from the decision, Todd Shipyards Corp. v. Texas Employment Commission, 153 Tex. 159, 264 S.W.2d 709, 713; was an indispensable party by statutory requirement, Texas Employment Commission v. Daniel, Tex.Civ.App., 241 S.W.2d 969, 971, no writ; and without its joinder the court was without jurisdiction. The appeal is “strictly governed by the statute” of its creation. Texas Employment Comm. v. International Union of Electrical, Radio & Machine Wkrs., Tex., 352 S.W.2d 252, 254.

The 10-day time limitation is jurisdictional. Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195. The statute under construction requires “commencing an action’’ within that time, “in which action” the employer here “shall be made a defendant.” To hold as appellant contends would be to authorize an appeal by an aggrieved employer without joinder of its employee in commencing the action. We do not think such an anomaly was the legislative intent. We interpret the statute to mean that the action must be commenced against the parties prescribed by its terms within 10 days after the decision becomes final in order to confer jurisdiction on the court. See Brown v. McMillan Material Co., Tex.Civ.App., 108 S.W.2d 914, 916, writ refused. The employer was such a party. The action was properly dismissed.

Affirmed.


text:
    A. K. LAUGHLIN, Appellant, v. John E. REICHERT and Groendyke Transport, Inc., Appellees.
    No. 4063.
    Court of Civil Appeals of Texas. Waco.
    Nov. 8, 1962.
    Charles R. Cunningham, Corpus Christi, for appellant.
    North, Blackmon & White, Corpus Christi, for appellees.
   WILSON, Justice.

Without statement of facts, and relying on Rule 307, Texas Rules of Civil Procedure, appellant asserts, in effect, the findings of the jury do not support the judgment. His action was to recover the reasonable value of services performed for one defendant, Groendyke, at the request of its alleged agent, Reichert, another defendant.

Reichert answered he had an agreement with Groendyke to operate trucks under the latter’s permit, under which he was solely responsible for employment of personnel, and Groendyke paid for their services; that appellant did perform welding services for him in consideration of Reichert having loaned money to appellant and his brother to purchase equipment; that appellant’s brother was Reichert’s employee; that while doing welding on equipment owned by Reich-ert, appellant was injured, and Reichert thereafter instructed that appellant be placed upon the payroll in order to obtain workmen’s compensation benefits; that work performed was solely for the benefit of the partnership of appellant and his brother.

By its verdict the jury found appellant performed valuable welding services for “either of the defendants,” for which he expected to be compensated, and that “either of the defendants” knowingly received the benefit thereof. It was also found, in effect, that there was an agreement by the partnership to perform services for defendants in consideration of Reichert’s furnishing money to enable the brothers to operate a welding partnership. The value of the services was found.

All parties filed motions for judgment on the verdict. Appellant’s motion was overruled; that of appellees was granted.

The verdict is not inconsistent with defendants’ pleaded theory, and we are unable to determine from the transcript that the verdict does not support the judgment. Other points may not be considered under Rule 307. Affirmed.


author: PER CURIAM.

text:
    Virgilio H. GUERRA et ai., Relators, v. C. Woodrow LAUGHLIN, District Judge et al., Respondents.
    No. 14106.
    Court of Civil Appeals of Texas. San Antonio.

      Nov. 15, 1962.
    Hill, King & McKeithan, Mission, for appellants.
    A. J. Vale, Glenn H. Ramey, Rio Grande City, Stafford, Atlas, Schwarz & Gurwitz, McAllen, for appellees.
   PER CURIAM.

On November 9, 1962, we granted Rela-tors leave to file a Petition for Writ of Prohibition, and in the alternative for appropriate injunctive relief.

This petition was by Virgilio H. Guerra, Lucio Gonzalez, Alonzo Alvarez and Eras-mo Z. Perez, as relators, against Hon. C. Woodrow Laughlin, Judge of the 79th District Court of Starr County, Texas, Mario Ramirez, Cesar Salinas, Mrs. Maxine C. Guerra, joined pro forma by her husband, R. R. Guerra, and R. T. Gonzalez, as respondents, seeking a writ of prohibition and, in the alternative, appropriate injunctive relief to prohibit and restrain the respondents from carrying into effect the judgment of the District Court of Starr County, rendered on the 8th day of November, 1962, in Cause No. 3238 on the docket of the District Court of Starr County, styled Mario E. Ramirez et al. v. Virgilio H. Guerra et al. This cause was a statutory election contest for four trusteeships of the Roma Independent School District, between the relators as contestees, and the respondents, other than Judge Laughlin, as contestants. The effect of the judgment was to declare contestants elected to such trusteeships, and providing further, as follows: “that they shall have their writ of possession and writ of ouster directed to the sheriff or any other law enforcement officer of the State of Texas, commanding that said contestants be placed in full possession of said four trustee offices, and that said writ be issued forthwith upon signing of this judgment, and that said contestants be placed in immediate possession of said four trustee offices, and that the President of the Board of Trustees of the Roma Independent School District be and he is hereby ordered to issue a certificate of election to each contestant, Mario E. Ramirez, Cesar Salinas, Mrs. Maxine C. Guerra and R. T. Conzalez immediately, and that each of same immediately be placed in possession of said trustee offices which were the subject of the Roma School District election of April 1, 1961.”

This cause No. 3238 was first tried in the District Court of Starr County, but its judgment was reversed by this Court and the cause remanded on September 27, 1961. Our opinion is in 351 S.W.2d 272. Shortly after this suit was filed the contestees filed a petition against Marin Garcia, District Clerk of Starr County, seeking to require him to fix the amount of bond provided for in Art. 9.09, Texas Election Code, Vernon’s Ann.St. This Court held that the provisions of Art. 9.09, supra, do not apply to an election contest for a school trusteeship. See: Gonzalez v. Garcia, Tex.Civ. App., 352 S.W.2d 913.

The contestees herein were declared elected by the Board of Trustees of the Roma Independent School District and took the oath of office as trustees and have been serving as such ever since, up to and including the present time.

Relators contend that the judgment rendered on November 8, 1962, herein, insofar as it ousts them from office forthwith, is totally void, for the following reasons: “(1) it grants a type of relief not authorized in statutory election contests, (2) it denies to respondents their valuable right to undisturbed tenure in such offices at least until the judgment becomes final on appeal, and (3) it removes respondents from office in an illegal manner, and without grounds.

Based upon the limited record before us, we overrule these contentions. The trial court, after a full hearing, has decreed that relators were not elected in the election held on April 1, 1961, and that the respondents, the contestants, were elected. It is the duty of the trial court to carry this judgment into immediate effect unless such judgment is superseded. Relators have not applied to the District Judge seeking to have the amount of a supersedeas bond set under the provisions of Rule 364(e), Texas Rules of Civil Procedure.

Arts. 9.09 and 9.10, Texas Election Code, do not apply in contests of school trustees elections, but if they did apply they make no provision for a supersedeas bond, they merely determine whether the contestant or contestee will be permitted to occupy the office pending the contest in the trial court. The matter of superseding the judgment of the trial court is a different matter.

In its judgment, the trial court provided, among other things, as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this cause be, and it is hereby, kept open on the docket of this Court for the •enforcement of this judgment and until contestants shall be in full and unhindered possession and control of said four trustee offices.”

This provision does not prevent the judgment from being a final judgment. Rule 369, T.R.C.P., provides that a cause is •to be kept on the docket pending appeal ■and the trial court has authority to carry "his judgment into effect after it has become •final by appropriate writ, unless it is superseded during appeal.

If relators desire to suspend the execution of the judgment of the trial court rendered herein pending appeal, they should .give a supersedeas bond, as is provided in Rule 364(e), T.R.C.P. Valerio v. Laughlin, Tex.Civ.App., 307 S.W.2d 352.

The relief prayed for by relators will be -denied and all costs of this proceeding taxed against relators.