author: ALEXANDER, Justice.

text:
    BLUNT v. NEW AMSTERDAM CASUALTY CO.
    No. 2172.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1939.
    Spears, Conger, Baskin & Spears, of San Antonio, for. appellant.
    Johnson & Rogers, of San Antonio, for appellee.
   ALEXANDER, Justice.

This suit was brought by J. W. Blunt against the New Amsterdam Casualty Company to recover on a robbery policy issued by the defendant to the plaintiff. The plaintiff was engaged in operating a parking lot in the city of San Antonio, and the' defendant insured him against loss occasioned by robbery. The policy contained a provision that “the company shall not be liable for loss or damage * * * unless books and accounts are kept by the assured and the 'loss can be accurately determined therefrom by the company.” The jury, in answer to special issues, found that on March 5, 1938 (during the life of the policy), the plaintiff sustained a loss of money as the result of robbery to the extent of $726. The jury further found, however, in answer to special issue No. 4, that the plaintiff had not “complied with the provisions of the policy which required him to keep books and records such' that the company could accurately determine therefrom the amount of loss sustained in the event of loss.” Based upon the foregoing findings, the court rendered judgment for the defendant. The plaintiff appealed.

The plaintiff requested the court to submit to the jury an issue as to whether he had “substantially complied with the provisions of the insurance policy requiring him to keep such books and records-that the company could accurately determine therefrom the amount of the loss-sustained, if any.” This issue was refused and the ruling is assigned as error. The plaintiff has not pointed out in his brief any evidence tending to show even a substantial compliance with the provisions of the policy in this respect. The record discloses that the plaintiff was engaged in-operating a parking lot for hire. He kept a set of books showing the amount of money taken in each day for the parking of cars and the sale of gasoline and other services rendered by him and the amount expended each day in connection with the operation of the business, but made no record whatever of the disposition of the funds-at the end of the day. The plaintiff testified that he did not keep any regular bank account but kept his money in a safety deposit box at the bank in the name of one of his employees; that he owed several creditors-whom he was unable to pay and was afraid' to deposit his money in the bank in the regular way for fear his creditors would garnishee his account. He had made a previous claim under the policy for a loss of approximately $600, which he claimed to have lost by reason of his pockets-having been picked while he was at a theater. The company refused to pay that claim.because the money had not been taken from him by force within the meaning of. the policy. With reference to the claim here sued on, he testified that on Monday morning, February 28th, he caused his-employee to go to the bank and withdraw for him from the lockbox an envelope which he claimed contained $790; that he kept this money in his possession throughout the week, paying therefrom various bills, some of which were not connected with the parking lot business, and from time to time adding certain collections thereto; and thát he had the balance thereof, $726, in his possession at the time he was robbed by two highwaymen on the following Saturday night, March 5th, at about eleven o’clock P. M., as he was entering his home. He admitted the books which he kept did not show the amount of money which he kept in his lockbox, the amount withdrawn on the occasion in question, the amount he added thereto during the week, nor the amount thereof used by him during the week in paying bills. Among other things, he said: “I made no record at all of the money I spent out of my pocket to pay those bills.” From the above evidence, it is readily apparent that there was no evidence that appellant had substantially complied with the provisions of the policy in question. Consequently, the trial court did not err in refusing to submit the requested issue.

We think the argument complained of was justified by the evidence, but if not, no reversible error is shown, because the evidence conclusively shows that the plaintiff wholly failed to comply with the policy in the respect indicated, and there was therefore no question of fact to be decided by the jury.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GALLAGHER, Chief Justice.

license: Public Domain

text:
    BURLINGTON-ROCK ISLAND R. CO. v. ELLISON et al.
    No. 2160.
    Court of Civil Appeals of Texas. Waco.
    Oct. 19, 1939.
    Rehearing Denied Dec. 21, 1939.
    Thompson & Barwise and Luther Hudson, all of Ft. Worth, and Bennett & Bennett, of Normangee, for appellant.
    Dean & Dean, of Navasota, for appel-lees.
   GALLAGHER, Chief Justice.

This suit was instituted by the surviving sons.and daughters of W. L. Ellison, all of whom were adults, to recover against Burlington-Rock Island Railroad Company, a corporation, damages alleged to have been suffered by them by reason of the death of their said father, which death they alleged resulted from the negligence of the agents, servants and employees of said Railroad in operating one of its trains through the city of Normangee. The parties will be designated as in the trial court. The cause was submitted on special issues, in response to •which the jury found, in substance, that defendant’s employees were negligent in the operation of such train and that such negligence was the proximate cause of the death of said W. L. Ellison. ■ The jury found that plaintiffs had suffered damages on account of the death of their said father in the sum of $4000, and as instructed by the court, apportioned such damage among the plaintiffs severally. The court entered judgment on the verdict in favor of plaintiff W. N. Ellison for the sum of $1000 and in favor of plaintiff Bulah Ellison for the sum of $1500, being the amounts apportioned by the jury to them respectively. In that connection, the court held that the findings of the jury awarding damages to each of the other plaintiffs were without support in the evidence, set such findings aside and entered judgment that said plaintiffs take nothing herein. None of said plaintiffs complain of such action in the trial court nor do any of them complain thereof in this court.

The defendant presents an assignment in which it contends that the court erred in submitting the measure of damages. Said issue was submitted in the following language: “What sum of money, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate plaintiffs for the pecuniary damages sustained by them as a direct and proximate result of the death of W. L. Ellison, if any * ⅜ * In answering the above question you will take into consideration the value of any money or thing of value, if any, which you find from a preponderance of the evidence that W. L. Ellison would reasonably have contributed to the plaintiffs during the remainder of his lifetime.” Defendant objected to said issue as submitted on the ground, among others, that the same did not affirmatively exclude from the consideration of the jury in awarding damages, mental suffering, grief and anguish suffered by plaintiffs and loss of the society and companionship of the deceased, and requested the court to affirmatively instruct the jury that they must not consider the same nor allow anything therefor. The court overruled such objection and failed to instruct the jury to exclude such elements in determining the amount of damages suffered by plaintiffs.

In an action for wrongful death it is important that the jury should not only be charged to allow a recovery for proper elements of damage, but should be instructed also to exclude elements for which no recovery can legally be had. If objection is made to the charge upon the ground that such elements are not excluded, the defendant is not required to request further instructions excluding them. 33 Tex.Jur., p. 214, sec. 130. Such an objection was made by the defendant in this case and such exclusion was requested. The court did instruct the jury that they, in determining the amount of damages, if any, recoverable, should take into consideration money or any other thing of value which the deceased would reasonably have contributed to plaintiffs during the remainder of his life, but did not tell them that they could not consider anything else. The failure of the court in actions for wrongful death, on proper objection or request by the defendant, to affirmatively exclude, in some appropriate way, any compensation for sorrow, grief, loss of companionship, etc., suffered by the plaintiffs, has been frequently held to constitute reversible error. Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, par. 3, 115 S.W. 260; Hines v. Kelley, Tex.Com.App., 252 S.W. 1033, pars. 1 to 3; Houston & T. C. R. Co. v. Gant, Tex.Civ.App., 175 S.W. 745; Gulf States Utilities Co. v. Dillon, Tex.Civ.App., 112 S.W.2d 752, 753, pars. 1 to 3, and authorities there cited; Dallas Railway & Terminal Co. v. Boland, Tex.Civ.App., 53 S.W.2d 158, 160, pars. 3 and 4, and authorities there cited.

All the other assignments presented by appellant assail the findings of the jury on issues of fact and discussion of the same would necessarily involve, to a greater or less extent, comment upon the weight of the evidence. Since the cause will be remanded for another trial, such discussion is omitted.

The judgment of the trial court denying Jack Ellison, Fred 'Ellison and Mrs. Lessie ■Snow any recovery herein is affirmed. Otherwise said judgment is reversed and the cause remanded.


author: O’QUINN, Justice.

text:
    BROUSSARD TRUST et al. v. PERRYMAN et al.
    No. 3545.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1939.
    Rehearing Denied Nov. 29, 1939.
    R. E. Seagler and Nelson Jones, both of Houston, and Orgain, Carroll & Bell, of Beaumont, for appellants.
    W. D. Gordon and Gordon Baten, both of Beaumont, for appellees.
   O’QUINN, Justice.

This suit was brought by S. R. Perry-man, alleged non compos mentis, through Mrs. Ala Bonner, guardian • of the estate of said S. R. Perryman, against The Broussard Trust et al., defendants. 'Plaintiff’s original petition was in trespass to try title to recover an undivided one eighth interest in 160 acres of land described as Lots Nos. 3, 4, 5, 6, 7 and 8, in Block 12, and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, in Block 13 of the Reppen Subdivision of the West one-half of the M. Pevito League in Jefferson County, Texas, according to the map or plat of said land of record in Vol. 6, p. 188 of the Mortgage and Lien Records of said Jefferson County, Texas. Plaintiff also prayed for partition..

The defendants filed answers consisting of general demurrer, general denial, plea of not guilty, and the 3, S, 10 and 25 year statutes of limitation (Vernon’s Ann.Civ. St. arts. 5507, 5509, 5510, 5519). The defendants, other than J. T. Perryman, Jr., also filed a cross-action against said S. R. Perryman and Mrs. Ala Bonner, alleging title to the land in themselves by virtue of the 3, 5, 10, and 25 year statutes of limitation, and prayed for recovery of the land described in plaintiff’s petition.

By supplemental petition plaintiff pleaded in avoidance of the statutes of limitation pleaded by defendants that S. R. Perryman had been adjudicated to be a person of unsound mind on January 28, 1911, and had been continuously under such disability since said time. By supplemental answer the defendants, other than J. T. Perryman, Jr., pleaded that if S. R. Perry-man ever had any title to the land sued for same was an equitable title only, and that the legal title was held by one L. A. Kottwitz as trustee for said S. R. Perry-man, and that the statutes of limitation plead by the defendants had barred all right of action on the part of said Kottwitz, •trustee, holder of the legal title, to recover the land, and, therefore, had barred also all rights of S. R. Perryman, the holder of the equitable title. An identical pleading was included in his first amended original answer of the defendant J. T. Perryman, Jr.

The case was submitted to the court upon an agreed statement of facts, and .judgment rendered for plaintiff for the title and possession of the land involved, -an undivided one eighth interest in the 160 acre tract, and reciting that no partition was ordered for the reason that the prayer for same had been withdrawn, from which ■ order and judgment of the court the defendants have brought this appeal.

As stated, the case was tried to the court upon an agreed statement of facts. The defendants, appellants, moved the court to make and file his findings of fact and conclusions of law. This motion was granted and the court adopted as his findings the facts set forth in the agreed statement upon which the case was tried, which reads:

“Stipulation.

“For the purposes of trial of this case, the following, stipulation is made:

“1. That the plaintiff, S. R. Perryman, is now of unsoúnd mind and has continuously been of unsound mind from the 1st day of November, 1910. That upon the 28th day of January, 1911, Viola Perry-man. was granted letters of guardianship ■ by the Probate Court of Bexar County, Texas, foi the Estate of S. R. Perryman, a person of unsound mind. That Mrs. Ala Bonner is now guardian of the Estate of S. R. Perryman and was guardian at the time of the filing of this suit. It is stipulated that S. R. Perryman was a person of sound mind up to October 1, 1910. That this suit was filed June 29, 1937.

“2. That by deed of date May 5, 1908, filed for record May 25, 1908, recorded Vol. 100, page 459, Deed Records of Jefferson County, Texas, and by deed of date May 6, 1908, filed for record May 25, 1908, and recorded in Vol. 100, page 458, the fee simple title to said land in controversy was conveyed to L. A. Kottwitz, and that L. A. Kottwitz received by said deeds legal title thereto regularly from the sovereignty of the soil.

“3. That to the extent of a one-eighth (l/8th) undivided interest in said land L. A. Kottwitz held the legal title thereto in trust for S. R. Perryman. That L. A. Kottwitz, individually, has never made any transfer of said undivided one-eighth (l/8th) interest of said legal title, but such title, if any, as is held by L. A. Kottwitz, is held by him in trust for the use and benefit of the said S. R. Perryman. Provided that nothing in this stipulation shall be construed as an admission by the defendants that they do not hold title under the deed of Jake Giles, Sheriff, to Charles R. Reynolds of date June 1, 1909, and recorded in Vol. Ill, page 335, et seq., Deed Records of Jefferson County, and/or by reason of the various statutes of limitation pleaded by the defendants.

“4. The judgment in the case of Thos. N. Hill vs. L. A. Kottwitz and S. R. Perry-man, No. 7695 in the County Court of Harris County, Texas, out of which order of sale was issued under which Jake Giles, sold the land in controversy to Charles R._ Reynolds, by deed of date June 1, 1909, specifically set out that L. A. Kottwitz was holding the legal title to the land held in trust to the extent of an undivided seven-eighths (7/8ths) for other parties, of which it is now stipulated that one-eighth (l/8th) of the whole was held in trust for S. R. Perryman. The judgment was for recovery of money against Kottwitz and not against S. R. Perryman, but that Perryman go hence without day with his costs.

“That during the pendency of said suit the attachment was regularly levied upon the land in controversy as the property of L., A. Kottwitz, but in the final judgment it was decreed that said attachment created a lien only on the individual interest of L. A. Kottwitz, to-wit, a one-eighth (1/Sth) interest as hereinbefore stipulated. In the citation in the above suit as originally filed in the Justice Court of Jefferson County, as well as the subsequent citation from Harris County, in which suit the attachment issued, it is shown that T. N. Hill, plaintiff in said suit, alleged that Kottwitz held the legal title of said land in trust for the use and benefit of the stockholders of the Beaumont Oil & Mineral Company, and in this connection it is stipulated that S. R. Perryman was the owner of an one-eighth (l/8th) interest in the stock of said company and out of which his equitable interest in the land. in controversy as held by Kottwitz arises.

“5. That subsequent to the date of his purchase at the sheriff’s sale on June 1, 1909, and prior to the date of his conveyance to Twenty Investment Company on December 5, 1912, C. R. Reynolds acquired by quit-claim or special warranty deeds any outstanding title of the other stockholders of the Beaumont Oil & Mineral Company, and being the beneficial owners other than S. R. Perryman, for whom Kottwitz held in trust, and such title so acquired under the quit-claim and special warranty deeds was acquired on or about June or July, 1911, and subsequent to the date of the guardianship proceedings in Bexar County on the estate of S. R. Perryman.

“6. That the judgment in cause No. 7695, Thos. N. Hill vs. L. A. Kottwitz, was never recorded in Jefferson County and that the order of sale as issued by the County Clerk of Harris County in said cause No. 7695 in no way showed by limitation or otherwise that the interest of L. A. Kottwitz in the land in controversy upon which levy was made and upon which foreclosure was had, was less than the whole thereof.

“7. That under said order of sale the Sheriff of Jefferson County levied his writ upon the land in controversy, the said land being described therein by lot number and as consisting of one hundred sixty (160) acres of land and being the same land conveyed to L. A. Kottwitz and described in the attachment proceedings in said cause.

“8: That by deed of date June 1, 1909, filed for record June 1, 1909, recorded in Vol. Ill, page 335, Deed Records of Jefferson County, said land as so described and being the land in controversy, was conveyed by Jake Giles, Sheriff, to Charles R. Reynolds.

“8A. It is stipulated that on or about May 20, 1908, L. A. Kottwitz, before one -Damron, a Notary Public in and for Harris County, Texas, made affidavit to the effect that he held the legal title of the land in controversy under a conveyance dated May 5, 1908, and that he held the same in trust for the following parties, to-wit: G. W. Crampton, a one half (1/2) interest; and to each of the following parties, an undivided one-eighth (l/8th) interest, viz. L. Goldstein, W. C. Moore, S. R. Perryman and L. A. Kottwitz; and the instrument was to acknowledge that he, Kottwitz, held the legal title for the parties in the proportions therein mentioned, and this affidavit was not filed for record until June 2, 1909, and is recorded in Vol. Ill, page 345, of the Deed Records of Jefferson County, Texas.

“9. That by deed of date December 3, 1912, filed for record December 5, 1912, and recorded in Vol. 132, page 507, Deed Records of Jefferson County, Charles R. Reynolds by deed conveyed the land in controversy to B. R. Norvell, Hal G. Land and C. H. Chambers, Trustees of the Twenty Investment Company, Ltd. That said deed was a general warranty to the extent of a seven-eighths (7/8ths) interest and a special warranty as to a one-eighth (l/8th) interest.

“10. That on January 14, 1914, Twenty Investment Company, Ltd., by its duly appointed and authorized trustees, conveyed said lands, together with other lands, altogether consisting of 607½ acres, by deed to W. O. Turner and E. W. Boyt, which deed was filed for record January 19, 1914, and recorded in Vol. 139, page 623, et seq., Deed Records of Jefferson County. That said deed is a warranty deed as to all of the property conveyed, except as to a one-eighth (l/8th) interest in the one hundred sixty (160) acres of land in controversy, as to which it is a special warranty deed.

“11. That subsequent thereto, W. O. Turner and E. W. Boyt divided as between themselves the land so conveyed to them by Twenty Investment Company, Ltd., the land in controversy being of the portion set aside to E. W. Boyt and that said W. O. Turner by deed of date June 25, 1917, in pursuance of said partition conveyed to ■E. W. Boyt, together with other lands, all the land in controversy, which deed was ■filed for record July 3, 1917, and recorded -in Vol. 165, page 428.

“12. That by deed of date October 15, 1934, E. W. Boyt and wife, Blanch Boyt, conveyed the land in controversy to the defendants herein other than J. T. Perry-man, Jr.

“13. J. T. Perryman, Jr. by mineral lease of date the 9th day of February, 1937, recorded in Vol. 430, page 64, Deed Records •of Jefferson County, acquired an oil, gas •and mineral lease from the other defendants in this case to the land in controversy, -which lease is as between said parties in full force and effect, and which lease has never been ratified or agreed to by plain-tiff, S. R. Perryman.

“14. That in January, 1914, immediately .after the sale by Twenty Investment Company, Ltd., to W. 0. Turner and E. W. Boyt of the land in controversy, they, Boyt and Turner, fenced this land, together with other lands, with a good and substantial fence, which fence has been continuously maintained by the said Turner .and Boyt until the sale of same to The Broussard Trust, et al., in October, 1934, :and has by the grantees in said deed been ■continuously maintained since said time.

“15. That from the time of'the fencing •of same in 1914 by Turner and- Boyt down to the time of filing of this suit, the defendants, and those under whom they claim, have had the peaceable and adverse pos•session of said land, cultivating, using or -enjoying the same, and paying all taxes ■thereon as they accrued and claiming the ownership of said land under a deed or ■deeds duly registered.

“16. That during each and every year ‘beginning with the year 1914, and including the year 1916, Turner and Boyt rendered for taxation and paid all taxes on said land before delinquencies, except that taxes for 1915 were not paid until March, 1916; and beginning with the year 1916 down to and including the year 1934, E. W. Boyt rendered for taxation and paid all taxes on said land each and every year before delinquency, and beginning with the year 1935 and down to and including the year 1937, said land was rendered for taxation by the defendants herein and all taxes paid by them each and every year as they accrued before delinquency. That for the years 1912 and 1913 said land wa-s rendered by Twenty Investment Company, Inc., and all taxes paid thereon before delinquency. That for the year 1910 and 1911 said land was rendered for taxation by C. R. Reynolds and all taxes paid thereon by him as they accrued. That for the years 1906 to 1909, inclusive, said lands were assessed to an unknown and in 1911 all back taxes for said years were paid by C. R. Reynolds.

“17. It is further stipulated and agreed that nothing herein shall prevent either of the parties hereto from introducing in evidence any matters they might think proper provided that same not be in contravention of anything herein stipulated.

“This the 30th day of January, A. D. 1939.”

Upon these facts, the court concluded that :

“(1) The one hundred and sixty (160) acres of land described in these proceedings was originally held in fee simple by a concern called the Beaumont Oil & Mineral Company, and the stock interest of such concern was' held by the following persons : G. W. Crampton one-half (1/2) interest, and the following individuals one-eighth interest each, to-wit: L. Goldstein, W. C. Moore, S. R. Perryman and L. A. Kottwitz; and the title by legal proceedings passed from said Beaumont Oil & Mineral Company to all of the aforesaid individuals, who became tenants in common of the entire property in that exact proportion.

“The deed, however, was made to the said L. A. Kottwitz, owner of one-eighth (l/8th) interest in the property, as an express trust for the other seven-eighths (7/8ths) interest. As such, the said Kottwitz held the naked, legal title for the owners of the land in the proportions stated.

“(2) A Judgment was rendered against the said L. A. Kottwitz in the County Court of Harris County, Texas, in the case of Thos. N. Hill, as plaintiff vs. L. A. Kottwitz as defendant, for a debt claimed by the plaintiff in that suit, and the one-eighth (1/8) interest of Kottwitz decreed by that judgment to be his interest in said land, was ordered sold as under execution, and was sold by the Sheriff of Jefferson County, Texas, on June 1, 1909, to Charles R. Reynolds.

“The judicial proceedings, both in the plaintiff’s petition and in the judgment, dealt only with the one-eighth (1/8) interest in the land as belonging to the judgment-debtor Kottwitz, and was the sole basis for the transfer of Kottwitz’ title under the Sheriff’s sale.

“This conveyance passed no more than such one-eighth interest, and did not affect the co-tenants of Kottwitz in the other seven-eighths (7/8) interest in the land.

“The title thus taken by the said Reynolds constituted him a co-tenant with the other named associates and co-tenants of Kottwitz. It placed Reynolds in the shoes of the said Kottwitz as to his interest of one-eighth in the said land. And the proceedings under which he held, and the facts stipulated, charged all persons then, and thereafter, with the facts as to the interest of the parties owning the other seven-eighths; the declaration of said Kottwitz, in the form of his affidavit, being filed on the 2nd day of June, 1909, and duly recorded in Jefferson County, showing that he was a naked trustee, holding said land in his name for the benefit of his co-tenants.

“(3) Mr. Reynolds, the purchaser of Kottwitz’s one-eighth interest at the Sheriff’s sale in 1909, in June or July, 1911, bought out the other undivided interests, taking quit claim and special warranty deed from all of them except Perryman, who at that time was insane; the deed from them reciting that their interest was the portion held for them in trust by Kottwitz, they being the former stockholders and beneficial owners of the land, as above stated. He thus became the full and complete owner of seven-eighths of the land, leaving one-eighth in Perryman, with whom he was in legal relation of tenant in common of the one hundred and sixty (160) acres of land.

“(4) Having thus acquired said interests, Mr. Reynolds on the 3rd day of December, 1912, conveyed the land to Norvell and others, as Trustees of the Twenty Investment Company, limited, giving a warranty deed to the extent to the seven-eighths interest which he had thus acquired, and providing a special warranty deed as to the one-eighth interest at that time owned by Perryman.

“(5) These Trustees of the Twenty Investment Company, Ltd., on the 14th day of January, 1914, conveyed this one hundred and sixty (160) acres in a deed covering other additional lands, aggregating 607½ acres, to Turner & Boyt by a warranty deed to all of the property conveyed, except as to one-eighth interest in the 160 acres, as to which the warranty was special. The grantees thus became co-tenants with Perryman, as to the title in the proportions stated, to the 160 acres of land.

“(6) Up to the date of the last named conveyance, the property in controversy was not occupied by any of the co-tenants, but was immediately fenced by Turner & Boyt, which fence was continuously maintained since that time. They and their subsequent vendees, the present defendants, holding the same chain of title and claim of ownership, using the land and cultivating it, and paying the taxes thereon and claiming its ownership.

“During all of which period of time,, from the date of the first occupancy in 1914, to the present time, the plaintiff S. R. Perryman has been under the disability of insanity, and has not as matter of law been capable of receiving notice, actually or constructively, of any hostile or adverse claim to his interest in the land; nor have such facts affected his right or title as a co-owner of said property to the extent of his one-eighth interest held by his co-tenants.

“(7) I find as matter of law, that the interest of the said S. R. Perryman has at all times been the interest in common tenancy with the defendants, and those under whom they claim, and that neither the claim of adverse possession nor limitation under the Texas statutes have in any wise affected, in behalf of the defendants, or their predecessors in interest, the title and estate in said land so vested in the said S. R. Perryman, and that he is entitled to recover it in accordance with his pleadings filed in this case.

“Judgment has been entered awarding such recovery.

“R. L. Murray, Judge Presiding.”

From an inspection of the record, we have concluded that the only issue involved upon this appeal is the proper legal deductions to be made from the agreed facts set out above. We think the only question to be determined is whether the five and ten year statutes of limitation were prevented from running by the disability of appellee S. R. Perryman. The court concluded that limitation had not run because of his disability notwithstanding the fact that the legal title to the land was not in Perryman, but was in Kottwitz his trustee who was sui juris. Also the court concluded that appellants were cotenants with appellee by virtue of the fact that C. R. Reynolds, who was in appellants’ chain of title, was a cotenant with Kottwitz, who was trustee for appellee.

Appellants contend that because the legal title was in Kottwitz, trustee of Perryman, and who was not under disability, limitation had barred any cause of action by Kottwitz, and therefore barred appellee’s suit as well; in other words, that since the legal title to the land was vested in Kottwitz, as trustee for Perryman, the running of the statutes of limitation was not affected by the fact that appellee, Perryman, was insane; and therefore, under the agreed statement of facts, the five and ten year statutes of limitation plead by appellants, were and are a complete bar to appellee’s suit.

We sustain this contention, Record title to the entire 160 acres was conveyed to Kottwitz May 5, 1908. According to the agreed statement of facts, Kottwitz held the legal title to an undivided one-eighth interest in said 160 acres in trust for appellee, Perryman. That is the land involved in this suit. Kottwitz has never made any conveyance of this one-eighth interest to any one. Appellee, Perryman, has been insane continuously since November 1, 1910. Appellants’ predecessors in title, W. O. Turner and E. W. Boyt, in January, 1914, fenced the land in controversy with a good and substantial fence which was continuously maintained by them up to and until they sold the land in October, 1934, to appellant The Broussard Trust, and has by the grantees in said conveyance been continuously maintained since said time. In the agreed statement of facts it is stated: “That from the time of the fencing of same in 1914 by said Turner and Boyt down to the time of the filing of this suit, the defendants, and those under whom they claim, have had the peaceable and adverse possession of said land, cultivating, using or enjoying the same, and paying all taxes thereon as they accrued and claiming the ownership of said land under a deed or deeds duly registered.” It is well settled that when the legal title to land is vested in a trustee for the benefit of another, limitation will run against such trustee in favor of an adverse claimant in possession, and when the bar of the statute is complete against the legal title vested in the trustee, it applies also to the equitable title of the cestui ques trust, and this though the cestui que trust be all the time under disability. Collins v. McCarty, 68 Tex. 150, 3 S.W. 730, 2 Am.St.Rep. 475; McAdams v. McAdams, 10 Tex.Civ.App. 653, 32 S.W. 87; Wiess v. Goodhue, 98 Tex. 274, 83 S.W. 178; Belt v. Cetti, 100 Tex. 92, 97, 93 S.W. 1000; 2 Tex.Jur. § 20, pp. 44, 45, notes 15, 16 and 17; 28 Tex.Jur. § 139, p. 239, note 18; 17 R.C.L. § 353, p. 977 ; 2 A.L.R. 50. The rule would be otherwise if the legal title to the property involved was in the cestui que trust.

But appellee insists that appellants and their predecessors in title to the undivided seven-eighths interest in the land were cotenants with S. R. Perryman and his trustee Kottwitz, holding the one-eighth interest in the land for him, Perryman, and so limitation could not and did not run against appellee and become perfect to divest the title out of appellee and vest same in appellants. This contention is overruled. As reflected by the agreed statement of facts, in 1905 title to the whole tract of 160 acres of land was vested by deeds duly executed and placed of record in Kottwitz seven-eighths of which was in trust for the benefit of others, among whom was S. R. Perryman to the extent of one-eighth of the land. Kottwitz in his individual right owned a one-eighth interest in the 160 acres. Thos. N. Hill secured judgment in the County Court of Harris County, Texas, against Kottwitz. Execution was issued and levied upon the land as the property of Kottwitz and at execution sale the sheriff sold the whole of the 160 acres to Charles R. Reynolds and duly executed a deed to him for same. The judgment authorized a sale only of the one-eighth interest owned by Kottvoitz, and recited that Kottwitz held the remaining seven-eighths of the land as trustee for others. Therefore, the sale by the sheriff of the entire 160 acres passed title to Reynolds only to the one-eighth interest owned by Kottwitz, and did not affect the legal or equitable title to the remaining seven-eighths. Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871; Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941, 84 A.L.R. 319; Fink v. Grevsgard, Tex.Civ.App., 123 S.W.2d 383, writ refused; Taylor v. American Trust & Savings Bank, Tex.Civ.App., 265 S.W. 727; Criswell v. Ragsdale, 18 Tex. 443; 18 Tex.Jur. 956; 16 R.C.L. 25-144. Again, since Kottwitz held only the legal title to the Perryman one-eighth interest in the land, having no beneficial interest therein, he had no interest in the Perryman one-eighth that was subject to execution, and therefore, the sheriff’s sale to Reynolds was a nullity insofar as said Perryman one-eighth interest was concerned, and conveyed no title whatever to' Reynolds to same. Gray v. Kaliski, Tex.Com.App., 45 S.W.2d 157; Brotherton v. Anderson, 27 Tex.Civ.App. 587, 66 S.W. 682, writ refused; Catlin v. Bennatt, 47 Tex. 165; 2 Freeman on Judgments, 5th Ed.,. § 956; 23 C.J. 342; 17 R.C.L. 125. Nor did the execution on May 20, 1908, of the affidavit by Kottwitz before a Notary Public that he held the one-eighth interest in the land in trust for S. R. Perryman have the effect of a legal conveyance of the legal title to one-eighth of the land to said Perryman. Johnson v. Darr, 314 Tex. 516, 272 S.W. 1098. The sale of Kottwitz’s one-eighth under execution by the sheriff to Reynolds made him a tenant in common with the other owners, including Kottwitz as trustee for Perryman. Subsequent to June 1, 1909, the date of the sheriff’s deed to Reynolds conveying to him legal title to the Kottwitz one-eighth interest, and prior to December 5, 1912, C. R. Reynolds (about June or July, 1911), acquired by conveyances the Hampton one-half interest, and the Goldstein and- Moore one-eighth interests each. This left outstanding the Perryman one-eighth interest held in trust for him by Kottwitz. On December 5, 1912, C. R. Reynolds conveyed the whole of the 160 acres to B. R. Norvell, Hal G. Land, and C. H. Chambers, Trustees of the Twenty Investment Company, Ltd. This deed was a general warranty deed to seven-eighths interest and special warranty to one-eighth interest. This deed was' duly recorded. On January 14, 1914, the Twenty Investment Company, Ltd., by its duly appointed trustees, conveyed, with other lands, the whole of the 160 acres of land to W. O. Turner and E. W. Boyt. This deed was a general warranty deed to seven-eighths interest and special warranty to one-eighth interest. This deed was duly recorded. Immediately after the sale of the land by the Twenty Investment Company, Ltd., to W. O. Turner and E. W. Boyt they took possession of the land and fenced same with a good and sufficient fence which they continuously maintained to January 25, 1917, when W. O. Turner, in partitioning their joint interests, conveyed his interest in said land to Boyt. Boyt continued his possession and use of the land until October 15, 1934, when he and his wife conveyed the land to appellants other than J. T.. Perryman, Jr. This deed was duly recorded. Reynolds, and his grantees, Twenty Investment Company, Ltd., and its-grantees, Turner and Boyt, and their grantees, appellants, other than J. T. Perry-man, Jr., held possession of the land, rendered same for taxes and paid all taxes-on the-land as they accrued down to the filing of this suit. When, on- December 5, 1912, Reynolds conveyed the whole of the 160 acres of land to the Twenty Investment Company, Ltd., this was a repudiation of his cotenancy with appellee in the land. Likewise on January 14, 1914, when the Twenty Investment Company, Ltd., conveyed all of the land to Turner and Boyt, if there had been no previous repudiation of the cotenancy, this was a repudiation of any cotenancy theretofore existing, and an assertion of right and title in and to all of the land. So, when Turner and Boyt took possession of the land and fenced the whole of it under their deed from the Twenty Investment Company, Ltd., claiming title to the whole. So, when Turner conveyed his interest in the whole of the land to Boyt,,and when, on October 15, 1934, Boyt and his wife conveyed the whole of the 160 acres to appellants. Each of said acts and conveyances was a repudiation of any and all rights of appellee in respect to the land. As was said by Judge German, speaking for the Commission of Appeals, in Republic Production Company v. Lee, 132 Tex. 254, 121 S.W.2d 973, 978: “It has long been settled in Texas that a conveyance by one cotenant to a stranger, or by one or more cotenants to another co-tenant, purporting to convey the entire common property, when followed by actual adverse possession, amounts to a disseizin of the non-participating cotenant; and record of such conveyance, followed by possession, constitutes notice of the repudiation.”

The trial court erred in holding that, under the agreed facts, appellants were cotenants with Kottwitz, trustee holding the legal title to the land for Perryman. Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973; Jones v. Siler, 129 Tex. 18, 100 S.W.2d 352; McCook v. Amerada Pet. Corp., Tex.Civ.App., 93 S.W.2d 482; McBurney v. Knox, Tex.Com.App., 273 S.W. 819; Honea v. Arledge, 56 Tex.Civ.App. 296, 120 S.W. 508, writ refused; Cryer v. Andrews, 11 Tex. 170.

From what we have said it follows that the judgment of the trial court should be reversed and here rendered for appellants, and it is so ordered. Reversed and rendered.


text:
    SUPREME CAMP OF THE AMERICAN WOODMEN v. SUMMERS et al.
    No. 2149.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1939.
    Street & Street, of Waco, for appellant.
    Bartlett & Bartlett, of Marlin, for appel-lees.
   GALLAGHER, Chief Justice.

This action was brought by appellees, Mack Summers, joined by her husband, Fred Summers, against appellant, The Supreme Camp of the American Woodmen, a fraternal benefit society, upon a benefit certificate issued by it to Samuel C. Mitchell, seeking to recover benefits claimed to be due because of the loss of an eye by said Mitchell as the result of an accidental injury. A copy of such certificate was attached to appellees’ petition and made' a part thereof. Appellees alleged that in consideration of the payments by said Mack Summers required by the terms of said certificate to be made at the time of the issuance thereof and monthly thereafter, the benefits to accrue thereunder were to be paid to her. Said certificate stipulated explicitly that accident benefits provided for therein were to be paid to said Mitchell and the death benefit to said Mack Summers, who was his mother. Mitchell, to whom, as aforesaid, accident benefits were to be paid, was not made a party to the suit, nor did appellees in any way plead or prove any assignment to Mack Summers of any right to recover the same. Appellant filed a general demurrer to ap-pellees’ petition, which was overruled. The case was tried by the court without a jury and judgment rendered in favor of appellee Mack Summers for recovery of the sum of $240.

Appellant presents an assignment of error in which it claims that the action of the court in overruling its general demurrer constitutes reversible error. The allegation that the benefits to be paid in case of accidental injury were to be paid to Mack Summers appears to be a mere conclusion of the pleader. It is directly in conflict with the express language of the certificate, which, as aforesaid, provided in express terms that sucji benefits should be paid to the said Mitchell. When a written instrument is attached as an exhibit to a petition and made a part thereof, the court will on demurrer give to the instrument the legal effect to which it is entitled, and the same will control the petition when its allegations are in conflict with the terms of such exhibit. Rowles v. Hadden, Tex.Civ.App., 210 S.W. 251, 259, par. 4, writ refused, and authorities there cited; Wineinger v. Farmers’ & Stockmen’s Loan & Investment Ass’n, Tex.Civ.App., 278 S.W. 932, par. 2, affirmed, Tex.Com.App., 287 S.W. 1091. Since ap-pellees’ petition, considered in connection with the benefit certificate attached to and made a part thereof, failed to show any right in Mack Summers to recover the benefits stipulated to be paid in cases of accidental injury to said Mitchell which did not result in death, and since this suit was exclusively for the recovery of such benefits, the general dem'urrer should have 'been sustained. Midland & N. W. Ry. Co. v. Midland Mercantile Co., Tex.Civ.App., 216 S.W. 627, 628, par. 1, writ refused, and authority there cited; Panhandle Grain & Elevator Co. v. Dowlin, Tex.Civ.App., 247 S.W. 873, par. 2.

The judgment of the trial court is reversed. Since it does not appear affirmatively that appellees can not so amend their petition as to set up a cause of action, the cause is remanded1, to the trial court for further consideration. Wichita County v. Tittle, Tex.Com.App., 41 S.W.2d 11; Missouri State Life Ins. Co. v. Boles, Tex.Civ.App., 288 S.W. 271, par. 18; Maryland Casualty Co. v. Overstreet, Tex.Com.App., 61 S.W.2d 810, par. 2; Thompson v. Litwood Oil & Supply Co., Tex.Civ.App., 287 S.W. 279, 281, par. 7, and authorities there cited.


author: JACKSON, Chief Justice.

text:
    MORELAND et al. v. QUANTE.
    No. 5042.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 18, 1939.
    Rehearing Denied Oct. 23, 1939.
    For decision refusing writ of error, see 134 S.W.2d 318.
    R. P. Moreland, of Plains, and Hal S. Lattimore, of Fort Worth, for plaintiffs in error.
    R. L. Graves, of Brownfield, for defendant in error.
   JACKSON, Chief Justice.

This suit was instituted in the District-Court of Yoakum County by C. B. Quante, the appellee, in the form of an action in trespass to try title against Mr. R. P. More-land and M. E. Dumas to recover title and possession to Lot 10, in Block No. 91 of the Original Town of Plains in Yoakum County, Texas.

The defendants answered by general demurrer, general denial, a plea of not guilty and alleged that the judgment and sale in the tax suit styled The State of Texas v. W. H. Dallas, Liquidating Agent of the Stockmen’s Exchange Bank of Plains, Texas, Cause No. 218, under which plaintiff derives his title, is void and the sheriff’s deed purporting to convey said lot to ap-pellee is likewise void.

The defendants allege that they owned shares of stock in the Stockmen’s Exchange Bank of Plains and because thereof had an interest in the lot involved in this suit, were necessary parties in Cause No. 218, but were not made parties thereto and were in no way bound by the judgment therein.

The case was tried before the court without the intervention of a jury and judgment rendered that plaintiff recover of and from the defendants title and possession of Lot 10, in Block No. 91 of the Original Town of Plains in Yoakum County, Texas, from which judgment this appeal is prosecuted.

The court in his judgment says that defendant M. E. Dumas filed a disclaimer and for that reason as to him the plaintiff should recover. This finding by the court is not controverted and on this plea judgment was properly rendered in favor of appellee against M. E. Dumas. Tull v. Wilbarger County et al., Tex.Civ.App., 36 S.W.2d 316.

There is no statement of facts in the record, however, the court filed findings of fact and conclusions of law in which he states that the Stockmen’s Exchange Bank of Plains, Texas, was organized in the month of March, 1920 as an unincorporated company with a capital stock of $25,000; that it acquired the lot and premises in controversy for a banking house; that some of the shares of stock were paid for in cash and some by the execution of promissory notes, but neither the number of shares for which cash was paid nor the number for which notes were executed is shown by the record; that the bank operated as such institution until in October, 1921, failed to elect directors and officers and about that time ceased to do business and left no estate except the lot here described and some promissory notes; that about six years later some of the stockholders, who claimed to represent 125 of the shares, met and passed a resolution, the substance of which is that the bank had ceased to function, had outstanding certain assets to be collected; there was no one in a position to liquidate the business of the institution, and W. H. Dallas be and was appointed liquidating agent for said bank with full power and authority to do any and all things in order to liquidate the business of the institution. This instrument was signed by the stockholders present but whether they constitute the majority is not disclosed. The instrument was not sworn to nor acknowledged, and the only business transacted by W. H. Dallas after his purported appointment as liquidating agent was to secure the renewal of some notes due the bank.

On December 8, 1934 the State of Texas, by its proper attorney, filed a suit to recover the sum of $205.32 delinquent taxes due on said lot for the years 1921 to 1933, inclusive, and to foreclose the tax lien, and obtained a judgment for said sum and a decree foreclosing the lien. The tax suit was instituted against the Stockmen’s Exchange Bank of Plains, a joint stock company with its residence in Terry County. Citation was issued to the said bank and W. H. Dallas, Liquidating Agent, and the return thereon shows that service was had on the bank and W. H. Dallas as the Liquidating Agent thereof on December 11, 1934. The judgment in the tax case, No. 218, recites: “The defendant, though duly cited as by law required, having failed to appear and answer in this behalf but wholly made default”, judgment by default was rendered against the bank. This decree on its face was presumptively regular and recited due and legal service had been had on the defendant and the court concluded as a matter of law that said recitation in the judgment, in a collateral attack thereon as in the instant case, could not be contradicted even by other portions of the record.

Whether or not the appellants individually were made parties to the suit is immaterial since it is admitted by all parties that the bank was an unincorporated company. Article 6135, Volume 17, Vernon’s Civil Statutes, reads as follows: “In suits by or against such unincorporated companies, whatever judgment shall be rendered shall be as conclusive on the individual stockholders and members thereof as if they were individually parties to such suits.”

This is a collateral attack upon the tax judgment in Cause No. 218, which was rendered in a court of competent jurisdiction and with the presumption of regularity on its face, and the recitation therein that the defendant was duly served, as the law required, the judgment was not subject to collateral attack.

In Switzer et ux. v. Smith, 300 S.W. 31, 33, 68 A.L.R. 377, the Commission of Appeals says: “S.ince Treadway v. Eastburn, 57 Tex. 209, it has been the uniform holding of the courts in this state that, as against a collateral attack, the recitation of due service in the judgment proper is conclusive upon such matter, and may not be contradicted by other facts, whether appearing in the record or aliunde. Such recitation imports absolute verity. Martin v. Burns, 80 Tex. 676, 16 S.W. 1072; Gibbs v. Scales, 54 Tex.Civ.App. 96, 118 S.W. 188 (Writ refused); Chapman v. Kellogg (Tex.Com.App.) 252 S.W. 151; Borders v. Highsmith (Tex.Civ.App.) 252 S.W. 270; Mariposa Mining Co. v. Waters (Tex.Civ.App.) 279 S.W. 576; Gillette’s Estate v. State (Tex.Civ.App.) 286 S.W. 261; Barton v. Montex Corp. (Tex.Civ.App.) 295 S.W. 950."

In Hollingsworth v. Wm. Cameron & Co., Inc., Tex.Civ.App., 160 S.W. 644, 645, it is said: “But appellant insists that the judgment foreclosing the tax lien is void because of defective citation or notice. This contention is purely a collateral attack on such judgment, and the validity of the judgment cannot in this suit of trespass to try title be inquired into or brought in question in a collateral attack, as here. Jameson v. O’Neall [Tex.Civ.App.] 145 S.W. 680; Kenson v. Gage, 34 Tex.Civ.App. 547, 79 S.W. 605. The authorities appellant cites are where the judgment is silent as to service upon the unknown owner. The judgment here recites 'that the law in all things has been complied with arid that the defendants have been regularly served with notice of plaintiff’s suit.’ As the judgment recites due process, it must be held, as against a purely collateral attack, as importing absolute verity as to the fact recited.” See also Empire Gas & Fuel Co. et al. v. Albright et al., 126 Tex. 485, 87 S.W. 2d 1092.

The court did not find that appellants or either of them ever at any time owned stock in said bank, and in the absence of a statement of facts and such finding, appellants in no event could prevail in this suit.

The judgment is affirmed.


author: PER CURIAM.

text:
    MORELAND v. QUANTE.
    No. 24572.
    Supreme Court of Texas.
    Dec. 6, 1939.
    Hal S. Lattimore, of Fort Worth, for plaintiff in error,
    R. L. Graves, of Brownfield, for defendant in error.
   PER CURIAM.

The application for writ of error is refused, because no motion for rehearing was filed in the Court of Civil Appeals, 134 S. W.2d 316, and. it is not made to appear, either in the application for the writ or in the motion filed in the Court of Civil Appeals for leave to file a motion for rehearing after the expiration of the time fixed by Art. 1877, Revised Civil Statutes of 1925 that the Court of Civil Appeals abused its discretion in overruling the said motion for leave to file a motion for rehearing.


author: HIGGINS, Justice.

text:
    ÆTNA LIFE INS. CO. v. ASHINHURST.
    No. 3902.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 2, 1939.
    Hill D. Hudson, of Pecos, for appellant..

      J. B. Cotten and John J. Watts, both of Crane, for appellee.
   HIGGINS, Justice.

In this case briefs have not been filed by any of the parties and no excuse shown for such failure. The appeal is therefore dismissed. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811.


author: BLAIR, Justice.

text:
    BELL v. McGEE.
    No. 8897.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1939.
    Rehearing Denied Dec. 20, 1939.
    Callaway & Callaway, of Brownwood, for appellant.
    No briefs filed for appellee.
   BLAIR, Justice.

Appellant sued appellee for $268.60, the alleged balance due on his note to appellant for $538.88, which was payable in certain monthly installments, and was secured by a chattel mortgage on an automobile. Ap-pellee became delinquent in his monthly payments, and when demand for payment was made, he turned the automobile over to appellant, who sold it and applied the proceeds on the note, which, according to the testimony of appellant, reduced the amount of the note to $268.60. Appellee alleged, however, that when he turned the automobile over to appellant it was upon agreement that the automobile was delivered in full settlement of the debt represented by the note in suit.

In answer to a special issue submitted, the jury found that at the time the automobile was delivered to appellant it was upon the agreement of the parties that same was taken in full settlement of the note in suit. Judgment was accordingly rendered for appellee, and the sole question presented is whether as a matter of law there is any evidence to sustain the jury’s finding that the automobile was delivered to appellant in full settlement of the debt in suit.

On this issue appellant testified as follows :

“When I talked to him about it, he just said he could not pay for the car and would just have to let me have it back. I never had but one conversation with him about taking the car back or repossession of it and in that conversation I just told him I would take it back and sell it for what I could get for it and give him credit for what I did get for the car.”
“I never did agree with him that I would take the car back in payment of the note as he has alleged in his answer, and no suggestion -was ever made by him that he wanted or expected me to take the car back in payment of the debt.”

Appellee testified as follows:

“I executed the note to Smith Bell that has been offered in evidence here to refinance an old note that I had executed to him before that, for the car described in this note which I bought from Smith. * * I called Smith and asked him to come over to my office in the City Hall. He came over and asked me about the payments on this, note and I told him I was unable to pay the car out. He said well he would have to take the car back but that he hated to repossess it because he would lose a little money on it.- I told Smith that I hated for him to have to take the car back and that I had already lost a lot of money on it. I told him where the car was located and that is the only conversation that I had with him about it and that is about all that was said about it one way or the other.
“From this conversation I understood or thought that when he took the car back it would be in satisfaction of the note and I thought that he understood that, but as I have stated this is about the extent of the conversation. * * *
“I was not notified at the time of the sale. I saw Smith Bell repeatedly on the street and he did not mention anything about the car. I did not know anything about it after that until I got a letter from Mr. Callaway a short time before this suit was filed.”

This evidence presented a sharp conflict as to whether appellant agreed to take or repossess the automobile in full satisfaction of the debt secured by the mortgage on it; and since the jury determined that conflict in favor of appellee, this court has no authority to disturb the jury’s finding.

The judgment of the trial court is affirmed.

Affirmed.


author: SMITH, Chief Justice.

text:
    SMITH v. HORTON.
    No. 10794.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1939.
    L. B. Cooper, of Cotulla, for appellant.
    H. D. Barrow, of Jourdanton, and Walter Stout, of San Antonio, for appel-lee.
   SMITH, Chief Justice.

At the May, 1939, term of the District Court of Atascosa County, said County obtained a judgment against D. V. Smith and others, establishing and foreclosing a vendor’s lien and deed of trust lien upon certain real estate situated in La Salle County. In due course execution and order of sale was issued upon said judgment and placed in the hands of Jack Horton, constable of precinct No. 6, in La Salle County, in which the land was situated. Also in due course Horton, as such constable, levied upon the land and advertised the same for sale, under and by virtue of said execution and order of sale, on October 20, 1939.

In the meantime, on October 2nd, the said D. V. Smith, owner, of the land, filed his application, in the District Court of La Salle County, for temporary injunction restraining Plorton from selling the land as advertised. The District Judge granted a temporary restraining order prohibiting the sale pending a hearing for temporary injunction. The hearing was had on Oc-to'ber 20th, and as a result the District Judge dissolved the temporary restraining order, and refused to grant a temporary injunction. Smith appealed from that order, and the appeal is now before this Court under an order advancing submission thereof.

This appeal is prosecuted upon the sole contention that Horton had moved out of precinct No. 6, thereby vacating his office of constable of that precinct and voiding his acts in attempted execution of the order of sale. No question is raised as to the validity of the judgment of foreclosure, of of the execution and order of sale, or of the regularity of the notice of sale under which Horton was proceeding. It is contended, simply, that Horton had vacated his office by moving out of the precinct, and that therefore he had no authority to advertise or make the sale.

It is undisputed that Horton was first elected and qualified and assumed to thereafter act as constable of said precinct eight or nine years ago, and had been regularly reelected thereto and regularly and timely qualified and assumed his duties as such following each succeeding election thereafter, and, particularly, that he was reelected at the general election in 1938, and qualified and assumed his duties thereunder, as provided by law, in January, 1939. The record further shows that throughout all those years he had regularly performed his duties as constable down to and including the duty of levying upon the land and advertising the sale thereof in this case.

The trial judge found that Horton had resided in San Antonio and Laredo during the preceding eighteen months, and was a resident of Laredo at the time of this hearing. But the evidence conclusively showed that while he spent a great deal of his time outside his precinct, in pursuit of his occupation, he spent much, if not most, of this time in the precinct, where his household effects were kept ‘ and used; that throughout the entire period he had paid his poll tax and voted as a resident of his precinct, and had performed whatever official duties were incumbent upon him as constable, thereby confirming his expressed intention of holding, and not abandoning or vacating, his office.

The trial court held, and based his decree denying the injunction solely thereon, that Horton’s authority to act as constable in the transaction could not be questioned in this collateral proceeding, but only by quo warranto.

It is conceded that appellant was duly elected and qualified, and was acting in this proceeding, as constable of the precinct in which he was purporting to perform the official duty of executing the admittedly valid order of sale, and that he had neither resigned nor been removed from the office, but had continuously performed such official duties as devolved upon him, and there is no contention, nor any evidence, that he intended to vacate the office.

In this state of facts appellant’s right, authority and duty to execute the admittedly valid order of sale in this case was conclusive, and injunction will not lie to restrain him from performing the duty thus imposed upon him by law. Under these facts he is not only constable de facto,' but he is such de jure. In either capacity, and equally in both capacities, his right and authority to perform this or any other lawful duty of the office cannot be questioned in this collateral proceeding to enjoin him from performing a particular duty pertaining to his office. 34 Tex. Jur. p. 629, § 171; Aulanier v. The Governor, 1 Tex. 653, 667; Williams v. Castleman, 112 Tex. 193, 247 S.W. 263; Broach v. Garth, Tex.Civ.App., 50 S.W. 594; Graves v. Griffin O’Neil & Sons, Tex.Civ.App., 189 S.W. 778; Barrett v. Tatum, Tex.Civ.App., 66 S.W.2d 444.

Applying the rule to the case stated, appellant having been duly elected and qualified, and not having resigned or been removed after properly assuming the office, and having performed all such duties up to the time this suit was brought, he was an officer de jure as well as de facto, and his authority to perform the questioned act cannot be enjoined in this collateral proceeding. The trial court therefore properly denied the injunction.

The relief prayed for by appellant was effected by the temporary restraining order, whereby the threatened sale on October 3rd. was averted, and the subsequent appeal from the later order dissolving the restraining order and denying the injunction had no other effect than to present to this Court a prayer for relief which had been fully and finally effectuated by the temporary restraining order issued below. That is to say, the relief sought in the application below was to prevent the constable from offering for sale, or selling, the land involved on October 3rd. That relief was fully effectuated by the restraining order issued on October 2nd, whereby nothing further remained to be done in the litigation, and the questions involved therein became moot. For a like reason, the matters presented in the appeal are moot, and this Court may not concern itself therein, and the only order this Court may make is to set aside the order appealed from, and dismiss the cause from this Court and the trial court as well, insofar as appellant prays for temporary injunction. Spencer v. Steele et al., Tex.Civ.App., 132 S.W.2d 146.

After the attempted appeal was perfected, appellant filed his original application in this Court to temporarily restrain ap-pellee from selling the land December 5, in pursuance of notice posted by appellee after the action of the trial court in the proceeding there. In view of this development we have deemed it not inappropriate to express the views of this Court upon the issues involved for the guidance of the court below in event of further efforts to litigate the subject matter.

The judgment of the trial court will be vacated, and the cause dismissed from both courts.


author: McCLENDON, Chief Justice.

text:
    CLARK, Secretary of State, et al. v. ATLANTIC PIPE LINE CO.
    No. 8837.
    Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1939.
    Rehearing Denied Dec. 20, 1939.

      Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, C. C. Cammack, and A. S. Rollins, Asst. Attys. Gen., and Edwin D. Guinn, Franchise Tax Atty., for appellants.
    Bromberg, Leftwich, Carrington & Gow-an and Charles B. Ellard, all of Dallas, for appellee.
   McCLENDON, Chief Justice.

This appeal is from a judgment in favor of appellee, Atlantic Pipe Line Company, a corporation chartered under the laws of the State of Maine, in three consolidated suits brought by appellee against the Secretary of State and other State officials under Vernon’s Ann.Civ.St.Art. 7057b, to recover certain taxes for the years 1933 to 1938, both inclusive, paid by appellee under protest and claimed by the Secretary of State to be due under Vernon’s Ann.Civ.St. Art. 7084.

Art. 7084 provides that “every domestic and foreign corporation heretofore, or hereafter chartered or authorized to do business in Texas, shall * * * pay * * * a franchise tax * * * based upon that proportion of the outstanding capital stock, surplus and undivided profits, plus the amount of outstanding bonds, notes and debentures, other than those maturing in less than a year from date of issue, as the gross receipts from its business done in Texas bears to the total gross receipts of the corporation from its entire business.”

The controlling issues in the case involve the correctness of the following (substantially stated) contentions of appellee:

1. The gross receipts which formed the basis upon which the taxes in issue were computed were derived solely from interstate shipments of oil by. pipe line and therefore constituted interstate commerce.

2. If the language of Art. 7084, “business done in Texas,” be construed to include inter as well as intrastate business, then the statute, at least to the extent of such inclusion, is violative of the commerce clause (Art. 1, § 8) of the Federal Constitution, U.S.C.A., and therefore and to that extent is void.

3. As used in the statute,/‘business done in Texas,” includes only intrastate business done in Texas.

4. In any event, the language, “business done in Texas,” is open to construction, and having been for a number of years prior to 1937 construed by the ’State departments charged with its administration as not including interstate business, such construction is binding upon the courts.

In order to give an accurate picture of appellee’s business, its general character, methods and practices, and the facilities with which it is conducted, we deem a somewhat extended statement essential. This statement, unchallenged as to accuracy by appellants, is taken, with some change in ’wording, from portions of ap-pellee’s brief. It follows:

“During the years covered by these suits, the appellee had a gathering system and main trunk line system, running from the field in Hobbs, New Mexico, across Texas on down to its boat loading racks and wharves at Atreco. It likewise had gathering systems and lines in sundry West Texas fields, which connected with this main line. It had gathering systems in East Texas and a main or trunk line running from East Texas to Atreco, a point on the Texas Gulf coast below Beaumont in Jefferson County, where ocean-going vessels áre docked for loading. At this point there is no city or town, no public wharf of any kind. It is simply a private loading terminal facility belonging to appellee. Ap-pellee has a similar terminal at Harbor Island, an island on the Gulf coast, where it maintains a loading wharf for ocean-going vessels, from which oil alone is loaded. This terminal is likewise an isolated spot, where there are no public wharves or loading terminals except that the Humble Pipe Line Company maintains a similar loading terminal there. The oil shipped from Harbor Island is gathered chiefly in the Refugio Field and moved by appellee’s trunk line system to Harbor Island. Appellee likewise maintains a small system for gathering and transporting oil from the Barber’s Hill pool by barge to a loading dock near Cedar Bayou in Galveston Bay, thence to Texas City near Galveston, for oceangoing cargoes. During all or part of the time involved in these suits, appellee had joint tariffs with the Humble Pipe Line Company, and another with United Pipe Line Company for oil coming from Louisiana, which was transported from Louisiana into Texas, and thence to Texas coastal points for delivery on board interstate and foreign transport vessels.

“In the transportation of oil by pipe line it is not practical to keep identical barrels of the same grade of oil from • different shippers, -separated. Crude petroleum being fugacious, it is the common, recognized and accepted practice in the entire pipe line industry in its handling merely to keep separated the various grades so as to prevent contamination. In pipe line parlance, this is called ‘common stock.’ Likewise, transportation of oil by pipe line is in its very nature necessarily somewhat different in handling than ordinary solid commodities, such as are handled in railway and express traffic. Due to scattered production, individual ownership of varying sized tracts, proration laws, and other elements, the small individual, or corporate producer rarely ever attempts to transport by pipe line his own production. Usually it is sold in the field, either before or immediately after production, to some larger corporate or individual producers or refiners of oil. These latter are generally the shippers by pipe line. So that there rarely ever occurs, and it is not economical to make, small individual shipments. Shipments are usually in quantities of 25,000 barrels or more.”

“Appellee’s principal office is in Philadelphia, Pennsylvania, its branch office is in Dallas, Texas. It is strictly and purely a common carrier by pipe line, and does not warehouse or store oil, nor sell oil. All of the contracts for the transportation of oil in appellee’s system are made in Philadelphia, through interstate communications for the movements. When the contract has been made, the details of it are conveyed by the Philadelphia office to the Dallas office, which has charge of the physical operations of the pipe line, both in Texas and in New Mexico. The great preponderant quantity of oil moved by appellee is on behalf of large shippers of oil, who have theretofore either themselves produced, or by purchase acquired the oil to he moved. With the exception of relatively small quantities transported from the East Texas field to a plant of appellee in Jefferson County, Texas (which plant was not in operation prior to 1937), and a relatively few scattered shipments that go by boat from Texas City and Atreco to Houston, Texas, all of the oil transported by appellee is put on board vessels at Texas Gulf ports, which vessels carry the oil in interstate coastwise trade to Brunswick, Georgia, and sundry points along the Atlantic seaboard in and about New Jersey and Pennsylvania, or to foreign ports in Canada, France, Spain and Italy. Approximately 99 per cent of the oil moved by appellee from points in New Mexico, Louisiana and Texas, is put on board vessels at Texas Gulf ports consigned to and actually transported to other States, and foreign ports, in a continuous movement. Less than 1 per cent of the oil transported by appellee from Louisiana, Texas and New Mexico is delivered to other points in Texas as its final destination. This oil handled by appellee, which is produced in New Mexico, Louisiana and Texas, and put .on these vessels and shipped out in interstate or foreign commerce, is handled substantially in the following manner : The shipper contacts appellee’s Philadelphia office and advises the company that it has and wants to ship certain quantities of oil of a certain grade and from a certain field, either in Texas, Louisiana or New Mexico, on appellee’s line down to on board vessels at Texas Gulf ports', consigned to definitely named parties in some other State or some foreign nation. If ap-pellee’s facilities serve the area from which the oil is to be delivered by the shipper, and if its commitments to other customers are such that it can handle the shipment, it then enters into a formal contract of shipment with the shipper. The rates charged are those prescribed by the tariff filed by appellee and approved by the Interstate Commerce Commission. The Philadelphia office then notifies the Dallas office of the fact that the contract of shipment has been made and appellee thereupon prepares what is called a tender, which instrument in general nature is the same as and takes the place of what is known in ordinary railroad transportation as a bill of lading. This tender shows the name of the consignor or shipper, the point of delivery to appellee, the name of the consignee, appellee’s terminal facility on the Gulf coast of Texas at which the shipper’s or consignee’s vessels are to receive the oil, the state or port either in the United States or foreign nation to which the oil is to be carried by said vessel, the quantity and quality of the oil tendered to the pipe line company and to be delivered to the vessel, the number of the interstate commerce tariff on which the oil is to move, showing the tariff to be charged and services performed. This tender is executed by both the shipper and appellee. In the great majority of these shipments appellee does the gathering from the lease tanks in the field. The tariff for the entire shipment includes this charge for gathering and ship-loading. There are many cases, however, in which the shipper does his own gathering and delivers the oil to appellee at some point along its main line, in which case the tariff does not include any gathering charge. If the shipment is one that appel-lee is required to perform the gathering services on, it connects its gathering line in the field where the oil is produced to the lease tanks and moves the oil as it is accumulated in the lease tanks down to the tanks at its receiving stations along its main trunk line. The oil is moved out of these receiving stations in large batches at regular intervals, determined by the ordinary and regular methods necessary to be used in the moving of various grades of oil through a pipe line. Due to the fact that there are various grades of oil these various shipments cannot be run indiscriminately into one tank or into the main line. If this were done, the various grades would immediately contaminate each other. As a result it is necessary in the operation of a pipe line that oil of each separate grade or character be moved in one batch. This batch may consist of 25,000, 50,000 or 100,-00.0, or more barrels, pushed down the line all at one time. It may take several days to get one batch all going into the main line. When the requisite amount to meet the ships at the sea coast of all that grade of oil is in the main line and started down on its journey, then another grade will be put in behind the first grade and pumped down the main line to the terminal for the ships at the coast, etc. Once the oil leaves the lease tank its movement is substantially continuous on down the line without interruption, except for such interruption as necessarily occurs in the ordinary pipe line handling of oil at the receiving station up on the main line in order to keep the batches of oil in separate grades. The oil is thus pumped down the main line to the terminal at the sea port and is there received into ship loading tanks kept in separate grades to maintain its separate quality or grade. The oil is pumped from these terminal tanks by numerous lines, right on board the boats of the various consignees of the oil as the boats arrive. The ship’s crew on the boats performs the act of mooring the boat to the wharf and indicating to the pipe line crew which tanks in the hold of the vessel various grades of oil are to be put into. The crew of appellee runs the hoses or lines from the loading dock or wharf up over the side of the vessel and into the tanks in the vessel, and operate and conduct the entire loading performance. Prior to the loading of the vessel the agent or ship’s captain, as the case may be, designated by the shipper or consignee, or both, to make the inspection, makes the inspection of the oil, and when the same is received on board the vessel the ship’s captain executes the ship’s bill of lading for the cargo, showing the consignor, consignee, quantity and grade of oil and port of destination to which the oil is to be taken and delivered by the ship. Copy of these papers is furnished to appel-lee and kept by it as required by the rules of the Interstate Commerce Commission. The vessel then clears for the port in some other state or foreign country with its oil. The Philadelphia office collects from the shipper the tariff charges, and it is paid to the Philadelphia office. It is not handled by fhe Texas office. Usually after tender has Reen made by the shipper and some ten or fifteen days before the vessel is scheduled to arrive, the name of the particular vessel and the date of its arrival is given to the Philadelphia Office of appellee, either by the shipper or the consignee, and this information is conveyed to the Texas office. It takes from ten to fifteen days to move any given quantity of oil from the Midland receiving station in West Texas to the Gulf coast; from five to seven days to move any batch of oil from the East Texas field to the Texas Gulf coast. There are cases of shipments and deliveries where under the express provisions of the Interstate Commerce tariff the carrier is permitted to receive oil into its system at the receiving station, and make available that same quantity of oil of the same character to a vessel at the sea port terminal of the pipe line, if, due to the vicissitudes of delayed arrivals of their vessels appellee has available that grade of oil at the coast terminal. This arrangement is made under the provisions of the Federal tariff by special contract. No more oil is pumped down through the main lines to the terminals along the Gulf coast than is necessary to meet the vessel’s tender under the scheduled contracts. While there is large tank-age capacity at these terminals, this tank-age is strictly for the use of appellee and necessary to the handling of its pipe line problems of transportation for loading vessels. Due to occasional breakdowns in pipe lines or machinery, and to delays in vessel arrivals as a result of storms and other conditions, and due to the fact that in its very nature these sundry grades of oil cannot be run right out of the main trunk line to on board the vessel, this tank-age capacity at the sea port terminals is necessarily purely as a pipe line operation. Appellee does not-permit anybody to tender or ship oil from its line to be held subject to further instructions of the shipper as to point of delivery or to be transported down to the sea port and there held in storage subject to further orders of the shipper -while he procures a customer or consignee.”

As to the first contention: Appellee’s business from the viewpoint of its inter or intrastate character, falls within three classes:

1. Shipments originating, transported exclusively, and destined ultimately to points in Texas. This constitutes less than 2% of appellee’s entire business. Appel-lee has paid the tax thereon and it is not in controversy in this suit.

2. Shipments originating in New Mexico and transported by appellee from point of origin to seaboard points in Texas with foreign destination. This, also, constitutes a relatively small percentage of appellee’s business, and is concededly interstate.

3. Shipments destined to points outside the State but transported to seaboard and loaded on ships by appellee; such shipments originating either (a) in Texas or (b) in Louisiana and delivered to appellee by connecting carriers at points in Texas. Appellee’s part of the actual carriage and other handling of such shipments is performed entirely in Texas. It is as to this class of shipments that the only point of difference between appellants and appel-lee relates.

Appellants’ contentions that appellee’s handling of these class 3 shipments is not interstate commerce is predicated upon the facts that: (1) they move under local bills of lading or tenders covering only appellee’s portion of the handling which is entirely intrastate; (2) the detailed course of business results in delay in transit and storage in appellee’s tanks at Gulf terminals pending arrival of ships, which (they contend) interrupts the continuous movement essential to interstate transportation; and (3) the oil is mingled in appellee’s pipe lines and tanks with other oil of the same grade, and not the identical oil consigned but only a like quantity and grade is delivered to the transporting vessel for transportation to ultimate point of destination. The effect of this commingling, appellants contend, is to pass the title to the oil to appellee and constitute the latter the carrier of its own oil from one point in the State to another, and interstate transportation does not begin until the oil is delivered to the vessel at the Gulf terminal.

These three contentions of appellants have been with such unanimity adversely adjudicated that only a brief statement of the effect of the holdings and citation of one or more supporting authorities is necessary.

1. • As tersely stated in Hon-nold’s “Supreme Court Law,” p. 351:

“The nature of a shipment is not affected by the fact that the transaction is initiated and completed under a local bill of lading which is wholly intrastate. United States v. Erie R. Co., 280 U.S. 98, 50 S.Ct. 51, 74 L.Ed. 187; Railroad Commission of Ohio v. Worthington, 225 U.S. 101, 108-110, 32 S.Ct. 653, 56 L.Ed. 1004; Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442; Hughes Bros. Co. v. Minnesota, 272 U.S. 469, 47 S.Ct. 170, 71 L.Ed. 359.”

See also 9 Tex.Jur., pp. 272-274, § 8.

2. The delays in transit and storage at the terminal wharves were only incidental to the customary and essential method of transportation of oil by pipe line and did not break the “continuity of transit” or affect the interstate character of the shipments. Carson Pet. Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626; and cases therein cited.

3. Nor was the interstate character of the shipments affected by the commingling with other oil of the same grade and delivery of the.quantity and grade and not the identical oil consigned. Vial case, above; Railroad Commission v. Worthington, 225 U.S. 101, 32 S.Ct. 653, 56 L.Ed. 1004; Texas & N. O. R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442.

Appellee’s second contention is ruled, we believe, by the following, among other, decisions: Galveston H. & S. A. R. Co. v. State, 210 U.S. 217, 28 S.Ct. 638, 52 L.Ed. 1031; Puget Sound Stevedoring Co. v. State Tax Comm., 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68; Houston B. & T. Ry. Co. v. State, 108 Tex. 314, 192 S.W. 1054.

We cite these specific cases because we regard them as practically on all fours with the case at bar upon the point at issue. The first of these cases held invalid a. tax (construed by the Supreme Court of Texas as an occupation tax) measured by the gross receipts of railroads operating in this State. The entire gross receipts of all railroads whose lines were entirely within the State, were included. Our Supreme Court upheld the tax chiefly upon the authority of State of Maine v. Grand Trunk Ry., 142 U.S. 217, 12 S.Ct. 121, 163, 35 L.Ed. 994. State v. G., H. & S. A. R. Co. et al., 100 Tex. 153, 97 S.W. 71. In reversing that decision, the Federal Supreme Court distinguished the Maine case on the ground that the fax there in question was in lieu of áll other taxes, except buildings, lands and fixtures outside the right of way, which were taxed locally, and the gross receipts from both inter and intrastate business were employed merely as a measure of the value of the company’s 'property (other than that stated) situated within the State. That decision was in 1908, the opinion being by Mr. Justice Holmes. Four Justices, including the Chief Justice (Fuller, Harlan, White and McKenna) dissented. The syllabus, which embodies the gist of the holding, reads: “The state cannot impose the tax levied by Texas act of April 17, 1905, upon railway companies whose lines lie wholly within the state, ‘equal to 1 per centum of their gross receipts,’ where a part and, in some cases, much the larger part, of these gross receipts, is derived from the carriage of passengers and freight coming from, pr destined to, points without the state.”

The decision was rested upon the holding in Philadelphia & S. M. S. S. Co. v. Pennsylvania, 122 U.S. 326, 7 S.Ct. 1118, 30 L.Ed. 1200, and it was stated that in the Maine case the authority of the Pennsylvania case “was accepted without question, and the decision was justified-by the majority as not in any way qualifying or impairing it. The validity of the distinction was what divided the court.”

The above Texas case, Houston B. & T. Ry. Co. v. State, supra, was decided in 1917, Mr. Chief Justice Phillips delivering the opinion. Its decision, based upon the holding of the Federal Supreme Court in the Galveston, H. & S. A. R. Co. case, and holding invalid the act of May 16, 1907, is thus stated in the syllabus: “The tax imposed upon terminal railways by Revised Statutes, 1911, art. 7384 (sec. 16, of the Act of May 16, 1907, Laws, 30th Leg., p. 487) being one per cent of its gross receipts from all sources, including those derived from interstate and foreign commerce, and being in addition to all other taxes imposed by law, though designated as an occupation tax, was unconstitutional as being a tax upon such commerce.”

We quote from the opinion: “Whether the tax in question is one upon interstate and foreign commerce and hence beyond the power of the State to impose, or is a tax which the State may lawfully exact, is a question controlled by the decisions of the Supreme Court of the United States. The present inquiry resolves itself, therefore, simply into the ascertainment of that court’s rule of decision upon the subject.”

The Stevedoring- case, decided in November 1937, was a unanimous decision, opinion by Mr. Justice Cardozo. That decision held invalid a statute of the State of Washington which levied a gross income tax held to be “broad enough to cover the business of a stevedore.” [302 U.S. 90, 58 S.Ct. 73, 82 L.Ed. 68], The holding was that: “A state may not impose an occupation tax on one engaged in the business of loading and unloading vessels engaged in interstate and foreign commerce, by longshoremen subject to his direction and control.”

The decision draws a distinction between that portion of the corporation’s business described in the above quotation, and that wherein the corporation merely performed the services of furnishing stevedores to the shipowners, the work being done under the latter’s directions and employment. The Philadelphia and Galveston, H. & S. A. R. Co. cases above are cited with approval; as they have been in numerous other decisions of that court.

As above stated, we regard these decisions as controlling in the instant case.

A very elaborate argument (172 pages) has been filed by the Franchise Tax Attorney of the Secretary of State’s Department, in support of appellants’ brief. This argument evidences a vast amount of research upon the subject, and reviews and digests numerous decisions of Federal and State courts. The proper limitations of this opinion preclude a detailed consideration of the many contentions urged in this argument and of the authorities cited therein. Nor would it be profitable here to attempt a reconciliation of the holding of the Federal Supreme Court in the above decisions with those in which a contrary holding is arrived at under fact situations which, apparently at least, are somewhat analogous. The Federal Supreme Court has itself .distinguished between those cases falling within the above classification, and those which uphold taxes levied (a) upon net income, and (b) upon manufacturing concerns, wherein the gross income is held to be an appropriate measure of value of their products, the manufacture of which is purely intrastate business. In dissenting opinions of Mr. Justice Black in Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365, 117 A.L.R. 429, and Gwin, White & Price v. Henneford, 305 U.S. 435, 59 S.Ct. 325, 83 L.Ed. 276, will be found a full discussion of the entire subject, with review and digest of authorities.

Upon appellee’s third contention: It may be conceded that the expression, “business done in Texas” taken in the abstract, is broad enough to include that segregated portion of interstate business which is wholly performed within the State. But the language must be construed with reference to its context and the subject matter dealt with, as well as the limitations upon the authority of the legislature in enacting the statute. It is a rule of general application that where the language of a statute is susceptible of two constructions, one of which will render it invalid and the other valid, the latter will be adopted. This rule has been frequently applied to this particular language. Pacific Express Co. v. Seibert, 142 U.S. 339, 12 S.Ct. 250, 35 L.Ed. 1035; Ohio Tax Cases, 232 U.S. 576, 34 S.Ct. 372, 58 L.Ed. 737; Southern Pacific Co. v. State Corporation Commission, 41 N.M. 556, 72 P.2d 15; State v. Northern Pac. R. Co., 183 Wash. 33, 48 P.2d 931. Many other cases might be cited. We hold that the language, “business done in Texas,” as employed in this statute was intended to mean business begun and completed in Texas, and not business begun in Texas and completed in some other state or foreign nation, or vice versa. In other words, that it means intrastate business.

As to appellee’s fourth contention : The record shows that from the passage of the act until 1937 its uniform construction by the Secretaries of State and other officials, including the Attorney General, had- been that it included only receipts from intrastate business. This admission was made by the officials representing the State in Southern Realty Corp. v. McCallum, D.C., 65 F.2d 934, certiorari denied, 54 S.Ct. 127, a case in which the constitutionality of the statute was attacked on other grounds. Conceding, arguendo, that the language of the act is susceptible of the construction that it embraces inter as well as intrastate business, it manifestly is not so clearly so as not to render it open to construction. Departmental construction may therefore become a determining factor. Especially is this true regarding revenue measures, the administration of which is under constant observation of the legislature. See 39 Tex.Jur., pp. 234-238, §§ 125 and 126.

We have not deemed it necessary to do more than state our views upon appellee’s third and fourth contentions because of their relative unimportance under our above holding sustaining the second contention.

The trial court’s judgment is affirmed.

Affirmed.


author: LESLIE, Chief Justice.

text:
    REFRIGERATION DISCOUNT CORPORATION et al. v. MEADOR.
    No. 2034.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1939.
    Rehearing Denied Dec. 1, 1939.
    H. C. Ray, of Fort Worth, for appellants.
    Oxford & McMillan, of Stephenville, for appellee.
   LESLIE, Chief Justice.

This is an appeal from an order of the District Court of Erath County granting a temporary injunction. W. H. Meador was the plaintiff complaining of the Refrigeration Discount Corporation and Carl W. Turnbow, Sheriff of Erath County. The parties will be referred to as in the trial court or pleadings.

The injunction was granted without notice and hearing. The petition' for the temporary injunction does not contain any allegation showing any pressing necessity therefor, and that the threatened injury was imminent and irreparable if not prevented. When that is not the case, or such facts are not alleged, power to grant such relief will not be exercised without notice to the parties to be restrained. This rule is well established, as may be seen from our opinion in International Harvester Co. v. Farmers & M. Nat. Bank of De Leon, 126 S.W.2d 690, and the many authorities cited therein.

This appeal might well be disposed of on the ground stated but the facts of the case, as disclosed by the pleadings, will be more fully dealt with. They are' in substance: Originally S. R. Thomas' executed to W. H. Meador a note which Meador indorsed to the Discount Corporation, which thereafter instituted suit thereon in the Justice Court of Precinct No. 1, Tarrant County, Texas, against Meador and Thomas, recovering judgment for the balance due thereon, amounting to about $82.60. The execution on that judgment is here sought to be enjoined; and upon the petition of Meador a temporary injunction was granted by the District Court of Erath County and made returnable to that court.

Concerning the transaction resulting in the execution of the note Meador alleges “* * that when said Refrigeration Discount Corporation purchased said note it contracted to pay to plaintiff the sum o,f $130 for the same, but in fact said defendant only paid to this plaintiff the sum of $117 and held $13 of this money rightfully belonging to this plaintiff, issued this plaintiff its receipt for said sum of money, and agreed to pay him (Meador) said sum of money upon the final payment of said note; that after said judgment was rendered in the Justice Court of Precinct No. 1 of Tarrant County, Texas, this plaintiff delivered to H. C. Ray, attorney for Refrigeration Discount Corporation, his receipt for the sum of $13 to be credited upon said judgment, and the said H. C. Ray has retained possession of said receipt, but has failed and refused to pay said sum of $13 on said judgment and that this plaintiff is entitled to such credit thereon and that for that reason the execution is for a sum of money $13 in excess of that actually owing by this plaintiff and if said Sheriff is permitted to levy on the property of this plaintiff he will force this plaintiff to pay the entire amount shown to be due by the execution * * Wherefore, the plaintiff is without adequate remedy at law and will suffer irreparable injury, etc. {Italics ours.)

He prays that on final hearing the injunction be perpetuated and “he have judgment requiring the Justice Court of Precinct No. 1 of Tarrant County, Texas, to enter a credit upon the judgment upon which said execution was issued of $13 in so far as said Justice Court judgment is against this plaintiff * *

Obviously, the proceeding for the injunction does not attack the judgment of Justice Court as being in any respect void. The petition, in effect, admits the validity of the judgment, and' the certified record from the Justice Court presented with the appellant’s brief, and unobjected to, discloses that the judgment is in all things regular, taken after due service and return of citation and even upon default on the part of the plaintiff. No taint of irregularity is charged by reason of the manner in which the judgment was taken. The .plaintiff Meador alleges affirmatively “that after said judgment was rendered” he negotiated with H. C. Ray, attorney for the corporation, and delivered him the receipt for the $13 which was to be credited upon said judgment. Since this $13 item originated at the time the corporation took Meador’s note no reason is given why he did not appear in the Justice Court and present it as a counter claim or credit against the note. In fact, nothing seems to have been said or done subsequently about this item until “after the judgment.” However, there would seem to be at least one very good reason why he may not have appeared and asked for such set off. In his petition for this injunction Meador affirmatively alleges that the corporation “agreed to pay him said sum of money upon the final payment of said note." Since the plaintiff admits he has not paid either the note or the judgment thereon, doubtless he did not think himself entitled to the $13 credit, which forms the basis of this action.

In this connection it is also evident that Meador seeks to enjoin the judgment without tendering the balance thereof which he admits to be due. Further, on the whole state of facts presented, it is apparent that Meador has a legal remedy in that he can institute a suit against the corporation for the $13 if and when it becomes due him under the contract which he alleges he had with the Refrigeration Discount Corporation. Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951, 952; Hill v. Brown, Tex.Com.App., 237 S.W. 252.

The right to this temporary writ of injunction is challenged upon other grounds, but we deem it unnecessary to discuss them.

For the reasons assigned the judgment of the trial court is reversed and the cause remanded.