author: GRAVES, Justice.

text:
    LOVELACE et al. v. OVERTON.
    No. 11088.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1941.
    See, also, Tex.Civ.App., 142 S.W.2d 731.
    Lawrence Lipper and E. R. Campbell, both of Houston, for plaintiffs in error.
    W. B. Lewis, of Houston, for defendant in error.
   GRAVES, Justice.

This appeal, by writ of error, is from a judgment of the Tenth District 'Court of Galveston County, in ultimate purport and effect determining: (1) That the title and right of possession to a certain 10 acres of land, more or less, out of the W. K. Wilson League in Galveston County, Texas, which formed the subject matter of this controversy between the parties hereto, lay —as between them — in the defendant in error, T. V. Overton, as against plaintiffs in error, Claribel Lee Bays Mitchell Lovelace, and husband, Chas. D. Lovelace; (2) that no controverted issues of fact for a jury remained therein; (3) that a prior judgment in the same court in cause No. 42,530 between plaintiffs in error and defendant in error’s predecessor in title was res adjudicata of such title in favor of this defendant in error, Overton; (4) that plaintiffs in error’s claim thereto should be removed as a cloud upon the title to the land in the defendant in error, Overton; and (5) that, by specific description thereof, a recovery of the 10 acres should be decreed to him.

The record is long, the pl.eadings and procedural reaches labyrinthian, but the correctness of the judgment may be said to depend, it is thought, upon whether or not inhering prejudice is pointed out in any of these three assignments by the plaintiffs in error:

“(1) That the District Court erred in sustaining Overton’s general demurrer to cross-defendants’ pleadings in cross-action seeking the title to the lands involved, upon the ground that such cross-action was a collateral attack upon a prior judgment for foreclosure against the same party, of the same property, in the same court, because this was a suit in equity to recover the same property from the Trustee who was holding same in Constructive Trust.
“(2) That the District Court erred in refusing to dismiss plaintiffs’ original suit, in its entirety, because the motion for non-suit was timely filed and submitted, and that there were not filed by the defendant, up to that time, any pleadings for affirmative relief, as would entitle defendant thereafter to maintain any prayers for affirmative relief to quiet his title.
“(3) That the District Court erred in awarding its judgment in behalf of the original defendant, because the original plaintiffs had timely deposited and requested that such case be docketed as a jury case, and the same was so docketed. That in the rendition of the court’s judgment (there having been in such case many disputed issues of fact), the Court did not impanel a jury or submit it such disputed issues, but rendered judgment in behalf of the original defendant, as cross-plaintiff, without requiring such cross-plaintiff to offer or submit any evidence and without the im-panelment of or the aid of a jury.”

As these quoted presentments indicate, the trial court arrived at its final determination by sustaining demurrers in Overton’s cross-action to Mrs. Lovelace’s suit against him for the property, which she calls “a suit to recover the title and possession, through a constructive trust, to said lands, thereby bestowing jurisdiction of said suit in said district court in Galveston County”, thereby holding it to be an unmaintainable collateral attack upon such prior judgment in No. 42,530, at the same time holding Ov-erton’s cross-action to quiet his title to be sufficient basis for such affirmative relief to him, and, in consequence of these two determinations, further holding the resulting case as so developed to be without jury issues left.

Without undertaking to recapitulate them, the defendant in error defends the judgment so rendered in his favor, in substance, upon these considerations:

“That he purchased two notes; one for $300.00, and one for $325.00,» secured by a deed of trust on the 10 acres, all executed by Mrs. Lovelace and dated April 9, 1925, and paid cash therefor, after the title had been approved by his attorneys, Bryan, Dyess, Colgin and Suhr; he denied under oath that O. L. Hubbard, W. O. Daily, or T. H. Mmims, were ever his agents; that, on the 14th day of August, 1926, he trans-. ferred the notes and mortgage to J. L. McShan; and that, on the 8th of February, 1926, Mr. McShan filed suit thereon against Mrs. Lovelace in the 10th District Court of Galveston, in cause No. 42,530, and recovered a judgment on the 21st day of February, 1927, ordering the property sold for a foreclosure of such deed of trust lien; that, on May 3, 1927, the sheriff, by foreclosure, deeded the property to Mc-Shan; that, on the 27th day of May, 1927, McShan deeded the property to this defendant-in-error,- Overton, and he has had absolute peaceable, and adverse possession of the property since the 27th day of May, 1927, until the filing of this suit — more than ten years; further, that, under the facts alleged, there is no constructive trust on the land inuring to the benefit of plaintiff-in-error, Mrs. Lovelace, but there is res judicata and judicial estoppel, and limitations against her thereon, and the record title in his favor against her remained undisturbed for more than ten years; he also claims judicial estoppel, in that he placed himself in a worse position by having had an oil well drilled on the property, and, because of this fact, there is an equitable estoppel against the plaintiff-in-error.

“The court dismissed the cause of action of plaintiff-in-error,-and retained for trial the defendant’s petition to remove cloud from title. Upon, the trial, the defendant-in-error urged special exceptions and general demurrers to plaintiff-in-error’s petition; the court, after hearing the same, sustained the material ones, because there was no attempt to set aside the judgment in the McShan case, in cause pending, No. 42,530; such judgment had become final, and could not be attacked collaterally, the plaintiff-in-error admitting to the court that she did not intend to attack it directly, and, since there was nothing for either the court or the jury to find, as facts, which were already admitted, in the plaintiff’s pleadings, the court correctly rendered a verdict and judgment in the case, removing such cloud from his title, because of res judicata, judicial, and equitable estoppel and the statutes of limitation.”

The main if not the controlling question the appeal presents is whether or not the plaintiffs in error’s suit was an unmaintainable collateral attack upon the prior judgment in cause No. 42,530, as the learned trial court in effect held in sustaining the general demurrer thereto, or whether it was, as they contend, a permissible action to recover the title and possession of the land through establishment of a constructive trust in their favor thereon in the hands of the defendant in error, arising from his alleged fraud in juggling the title and possession out of them, without first, by direct action, seeking to set aside the adverse judgment to themselves in such cause No. 42 — 530.

This court concludes that the trial court erred in so determining that removal of such pre-existing judgment by direct attack thereon was an indispensable prerequisite to the maintenance of this action; hence, that plaintiffs'in error’s quoted first assignment should be sustained; in other words, our authorities hold that, in such an instance as this, where a purchaser at a judicial sale is alleged to have acquired the property in fraud both of the court through which the proceedings were had and of the plaintiff himself, that it passed by constructive trust for the benefit of the defrauded plaintiff, and that the doctrine of collateral attack does not apply, to the extent of requiring' the judicial sale to be set aside as a preliminary to the establishment of the claimed trust; that a decree— obtained in those circumstances — is not legally inconsistent with the position taken by the plaintiff in the action, that is, that the defendant on the face of the record owns a legal title to the property, but having obtained the s'ame by imposition upon both the court and himself, holds it in trust for him, the plaintiff; indeed, as this court reads them, our Texas authorities, with one voice, hold specifically that: “Where a purchaser at a judicial sale is alleged to have acquired the property in trust for the plaintiff, the doctrine of collateral attack does not apply so as to require that the decree of order of sale should be set aside as preliminary to establishing the trust alleged.” See 25 Tex.Jur., 756-7; Johnston v. Stephens, 121 Tex. 374, 49 S.W.2d 431; McCampbell v. Durst, 73 Tex. 410, 11 S.W. 380; Fisher v. Wood, 65 Tex. 199; Storer v. Lane, 1 Tex.Civ.App. 250, 20 S.W. 852; 42 Tex.Jur. 771; Kreis v. Kreis, Tex.Civ.App., 57 S.W.2d 1107, error dismissed; Nuckols v. Stanger, Tex.Civ.App., 153 S.W. 931, error dismissed; Miller v. Carlton, 2 Tex.Civ.App. 382, 21 S.W. 605; Tuck v. Patterson, Tex.Civ.App., 60 S.W.2d 328.

This being the applicable rule of law, it seems also plain that the pleadings of these plaintiffs in error, when given the benefit of all reasonable intendments as against the general demurrer, did state a good cause of action for a constructive trust in themselves, the material substance thereof being as follows:

“I. That on March 1, 1925, the plaintiff, Claribel Lee Bays Mitchell Lovelace, was the wife of S. Robert Bays, (Sometimes known as Robert Bays and S. R. Bays) but there was then pending in Freestone County, Texas, a divorce suit by said plaintiff against the said S. Robert Bays, and judgment of divorce, dissolving the bonds of matrimony between said plaintiff and said S. Robert Bays, was entered on or about the 7th day of April, 1925.
“II. That on or about the 1st day of March, 1925, O. L. Hubbard, T. PI. Mims and W. Owen Dailey were the agents and representatives of the defendant herein, and he and they were negotiating with the plaintiff, Claribel Lee Bays, to sell to her the land hereinafter described. That on or about March 26, 1925, the land hereinafter described was sold and conveyed by Mattie P. 'Pettit, individually and as independent executrix of the estate of C. C. Pettit, deceased, to O. L. Hubbard, by deed of said date. That the said Hubbard was the trustee, agent and representative of the defendant, holding said title for the use and benefit of the defendant herein, and the said Overton owned the title to said land or had some interest therein.
“That by reason of the negotiations for the sale of said la.nd to this plaintiff, on or about March 26, 1925, or very shortly thereafter, this plaintiff purchased said land and there was executed and delivered a deed describing and conveying the same by O. L. Hubbard to this plaintiff, for the cash and whole consideration of Six Hundred and Twenty-five ($625.00) Dollars, which was paid by this plaintiff to the said O. L. Hubbard, T. H. Mims, W. Owen Dailey and said defendant; said deed being in the nature of a general warranty, with no lien reserved therein securing the payment of any unpaid portion of the purchase price, whereby this plaintiff became the owner in fee simple of the property and premises described therein, and which will hereinafter be described.
“HI. That several days after the execution and delivery of said deed, the said defendant and his agents and representatives hereinabove named, communicated with this plaintiff, and advised her that the deed which had been executed and delivered to her would constitute said property as qommunity property between herself and her husband, Bays, and that to eliminate said community interest therein in her said husband, Bays, that the property should be re-conveyed by her to the said Hubbard and that there would be executed and delivered by the said Hubbard another deed, conveying said property by general warranty deed, which should and would be post-dated, so that the same would appear to have been executed after the date upon which she' expected and advised them she would obtain a judgment of divorce against her said then husband, on or about April 7, 1925, so that the record title would be transferred to her as her own separate property. That as a result of such communication and information, she appeared in the office of the said W. Owen Dailey, a practicing attorney of the City of Houston, and there he presented to her for execution certain written documents, which, as explained and represented by him to her, were necessary in order to have her re-convey the title to said property to the said Hubbard, to protect her title, pending her divorce suit, and procuring the judgment of divorce against her then husband, in connection with the execution and delivery of a new deed from the said Hubbard conveying said property to her by a postdated deed. That plaintiff believed and relied upon said statements and representations, and the truth and correctness thereof, and relying upon the honesty and integrity of said parties, executed said instruments or documents which she believed to have,been necessary for the protection of her interest and title in said land, and the reconveying by defendant and his agents and representatives of said property by said post-dated deed in order not to cloud her title to the land and premises, she being an inexperienced woman in business and legal matters; and in connection therewith there was executed and delivered to her by defendant and his aforesaid agents and representatives a new deed from O. L. Hubbard conveying said property; said deed having been dated as of April 8, 1925, but as a matter of fact said deed and papers were executed and delivered a week or two prior to said date of April 8, 1925, and prior to the entry of the judgment in the divorce suit then pending, dissolving the bonds of matrimony between her and her said husband,. Bays. That relying upon the statements and representations made to her by said parties, she did not read said papers which she executed, but delivered to them the first deed which she had received, signed by said Hubbard, and accepted, and received from them the second post-dated deed above referred to. That there was no further consideration for said transaction other than the consideration which she had theretofore paid to said parties.
“IV. That some time later this plaintiff was informed that the papers which she executed and delivered to and in the office of said W. Owen-Dailey were'not in the nature of a reconveyance from her to the said Hubbard, covering said land, but was in fact a deed of trust from her to the said Dailey as trustee for the use and benefit of the defendant herein, conveying the land hereinabove described and securing the payment of two notes which she was informed she had executed of even date with said deed of trust payable to the order of the defendant herein, aggregating $625.00, the first note being in the sum of Three Hundred ($300.00) Dollars due six months after date, and the second note in the sum of Three Hundred and Twenty-five ($325.00) Dollars due twelve months after date, and when she learned the nature of said papers, she protested to the defendant and his agents and his representatives, here-inabove named, and stated to them that she had never borrowed any money from said defendant and was not obligated to pay the amount of said notes, and had no knowledge that she had executed such deed of trust and notes, and demanded that said deed of trust lien be released and that said notes be cancelled and discharged. Thereupon, the defendant and his said agents and representatives admitted that she was not obligated to pay to the said defendant the amount provided for in said notes, and that they would release said mortgage lien, and cancel and destroy said notes. This plaintiff relied upon the declarations, statements and promises made by said parties, and assumed that said alleged lien had been released, and that said notes had been destroyed.
“This plaintiff says that all of said papers were executed and delivered at the same time, and were all filed for record 'with the county clerk of Galveston County.
“V. That on or about, and some time during the year 1933, said plaintiff met the defendant, and he stated to her that she had not paid the taxes upon said land since she had acquired the same, and that the land had been sold under foreclosure for the collection of delinquent taxes due and unpaid thereon, and that she had no further interest in the land, and that he knew nothing further about the property. That this plaintiff accepted and relied upon the statements and representations made to her by the defendant, and made no further inquiry or reference thereto until sometime later, as hereinafter alleged.
“VI. That about the 1st day of February, 1938, the plaintiff having become married to Charles D. Lovelace, learned that the defendant was claiming that he owned said land. That said land being at that time in close proximity to the Dickinson oil field, situated in Galveston County, Texas, she made investigation as to the title to the land, and from the records of Galveston County, discovered the following facts:
“a. That on or about the 14th day of August, 1926, the defendant transferred and assigned to J. L. McShan of Harris County, Texas, said two notes hereinabove referred to, dated April 9, 1925, payable to this defendant, together with the alleged mortgage lien hereinabove referred to, to secure the payment of said notes.
' “b. That on or about the 8th day of September, 1926, there was caused to be filed in the name of J. L. McShan, in the District Court of Galveston County, Texas, for the 10th Judicial District, cause No. 42,530, against the plaintiff herein, in the name of Claribel Lee Mitchell and her husband, Clyde Mitchell,' praying for a judgment on said notes, and for a foreclosure of said alleged deed of trust lien on said land; in which suit this plaintiff or her then husband were not personally served with citation, but such citation against the defendants in that suit were only served by publication.
“c. That in said cause, on or about the 21st day of February, 1927, there was entered by the court, in behalf of the plaintiff, a judgment by default against said defendants, for the amount of the principal, interest and attorney’s fees provided for in said two notes, and the foreclosure of said mortgage lien upon said property; and, thereafter order of sale was issued therein by the clerk of said court on March 31, 1927, and under said order of sale, said-land was levied upon and sold by the sheriff on May 3, 1927. At such sale, said property was bought in in the name of the said J. L. McShan for the sum of $300.00, which, after the deduction of the court costs, was credited upon said judgment, and a sheriff’s deed was executed and delivered to and in the name of the said J. L. McShan, conveying said property, which said deed was filed for record with the County Clerk of Galveston County, and is recorded in Volume 399, page 551, of the Deed Records of said County.
“d. That there was executed and delivered a deed from J. L. McShan to the defendant, T. V. Overton, dated May 27, 1927, conveying said property for a consideration of $10.00 and other valuable considerations, and recorded in Volume 399, page 594, of the Deed Records of’ said County.
“VII. This plaintiff says that until her investigation and becoming informed of the matters shown in the above paragraph No. VI, she did not have knowledge or notice that the defendant had not released said mortgage lien and that he had not can-celled said two notes, and that said notes and lien had been transferred and assigned to the said McShan, and that suit had been brought against her and her husband seeking to recover judgment on said notes and for the foreclosure of said lien, and that judgment had been entered therein, and that sale had been made of said land thereunder to the said McShan, and that the said McShan had conveyed said property to the defendant.
“This plaintiff alleges that the action of the defendant and his said agents and representatives in preparing, accepting, procuring, receiving and holding said notes and deed of trust, and the failure of the defendant to carry out the promise to this plaintiff to release said lien and cancel out said notes, and in assigning said notes and said lien securing the same to the said McShan, and in procuring the bringing of said suit to obtain judgment against this plaintiff, and to foreclose said deed of trust mortgage lien, and in obtaining judgment thereon without personal service to this plaintiff, but only citing her by publication, and in procuring the judgment therein, and of having the land sold and conveyed under said judgment to the said McShan, and in procuring the conveyance of said land from the said Mc'Shan to the defendant, and in making the representations and statements by him - to this plaintiff that she had lost title to said land through tax foreclosure suit and sale, were fraudulent and false statements and representations, and were done in collusion with the defendant a-nd his agents and representatives hereinabove referred to and named, and were all done for the purpose of defrauding said plaintiff, not only of the purchase price of $625.00, which she had paid to him and them as the purchase price for said land, but also defrauding said plaintiff of her legal title to said land and premises, and by reason of said frauds, deceits, false statements, and misrepresentations, defendant became unlawfully and fraudulently the legal owner of the record title to said land and premises, unjustly enriching himself, thereby, and to the detriment and damages to plaintiff.
“That as a result of the foregoing transactions, this plaintiff, having paid for and thereby having become legally and equitably entitled to the fee simple title to said land and premises, unencumbered, and by reason of the intentional and deliberate frauds perpetrated upon her, as aforesaid, by the defendant and his said agents and representatives, whereby the record title thereto became vested in the defendant, T. V. Over-ton, who has since such time asserted to own such land and premises and has demanded and received all of the income and rentals therefrom; and because thereof, since that time, the defendant has held the title to said property as the constructive trustee for the use and benefit of said plaintiff.”

The conclusion stated is not undermined, it is thought, by any of the quoted considerations upon which the defendant in error relies; obviously, as against the legal effect of the sustaining of the general demurrer, opposing averments of fact are in* effective, since this court must not only take as true all the well-pleaded averments of the plaintiffs in error, but, in addition, indulge all reasonable intendments in further support thereof.

Under this holding a reversal must in any event follow; it is accordingly deemed unnecessary to dispose of the other matters presented in the briefs, as they will probably not again arise — that is, if there were errors, on this trial, either in not dismissing the whole suit, despite the defendant in error’s cross-action, or in not submitting the issues therein raised to the arbitrament of a jury —they may be obviated upon a new trial.

The appealed-from judgment will be reversed, and the cause remanded.'

Reversed and remanded.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    GARCIA et al. v. JONES et al.
    No. 3982.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 10, 1940.
    Rehearing Denied Feb. 13, 1941.
    G. W. Wilson, of Falfurrias, and R. G. Harris, J. B. Lewright, and Philip J. Montalbo, all of San Antonio, for appellants.
    Geo. Cannon and Harold A. Neuhaus, both of San Antonio, Felix A. Raymer, of Houston, Perkins & Floyd and Frank T. Morrill, all of Alice, and Thompson, Knight, Baker, Harris & Wright and H. F. Thompson, all of Dallas, for appellees.
   PRICE, Chief Justice.

This is an appeal from an order of the District Court of Brooks County sustaining a general .demurrer to a motion to re-docket and retry cause No. 429, styled Jose Vizcaya Prado v. Dr. Jose G. Garcia et al. The defendants declining to amend, the motion was ordered dismissed.

Appellees have filed a motion to dismiss this appeal on account of alleged lack of jurisdiction of this court. The ground of the motion is,that the judgment or order is not such a final judgment as may he reviewed on appeal.

The appellants, Dr. Jose G. Garcia, San Juana Garcia, Rita G. Garcia and Manuel Garcia Hinojosa, were parties defendant in said cause No. 429.

Cause No. 429 was filed March 21, 1932 by Jose Vizcaya Prado against appellant and numerous other parties. It sought partition of the La Mestena Grant, situated in Brooks County. On December 1, 1934, a judgment was entered in the cause.

The basis of appellants’ motion to re-docket and retry the cause was that this judgment was not a final judgment, and hence the cause stood for trial. The lack of finality therein was alleged to appear from the record in the case. The record, the motion charged, showed that the judgment was not supported by pleading and a lack of necessary parties.

In our opinion the correctness or incorrectness of the judgment appealed from has nothing to do with the question of jurisdiction of this appeal. Even though a final judgment is in all things correct, a party adversely affected thereby has the right to appeal therefrom. Therefore, we shall assume, for the purpose of passing on this motion only, that the judgment in cause No. 429 was,, as alleged by appellants, interlocutory in character, and appellants were entitled to try the case.

The record in the cause was before the court in passing upon the motion. Notice was necessarily taken thereof. The demurrer searched the records. Carr v. Cleveland, Tex.Civ.App., 86 S.W.2d 858.

There is . no disagreement between the parties to this appeal on the proposition that, to support jurisdiction on appeal, the judgment must be final. Perhajps there is agreement on the proposition that a judgment to be final need not dispose of the case on the mérits, but is final in an appeal-able sense if it terminates the action then pending.

The case of Linn v. Arambould, 55 Tex. 611, gives an enlightening and, we think’ accurate discussion of the question as to when a judgment is appealable. In the opinion’ there appears a quotation from Freeman on Judgments, as follows: “A final decree is one which disposes of the cause, either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, decreeing either in favor of or against the prayer of the bill.”

We deduce from the above cited case and authorities discussed therein that a final judgment is one that terminates an action.

Not every proceeding in a court in which action by the court is sought is an action. An illustration of this is to be found in the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040. There it was held that a proceeding to make the minutes speak the truth as to the judgment rendered, was not an action within the meaning of the four-year statute of limitations; a sought correction of the rendition, that is, of the •judgment actually rendered, is another matter. See Waggoner v. Rogers, 108 Tex. 328, 193 S.W. 136.

We take it to be clear that the action taken and complained of herein was not “a sending it out of the court before a hearing,” that is, a dismissal of cause No. 429. The order did not purport to in any way affect the merits of that action. The order appealed from simply amounts to a denial of the motion to redocket and retry. The motion was not, in our opinion, an action.

In Armstrong v. Nixon, 16 Tex. 610, 611, strongly relied upon by appellants here as supporting their contention, the judgment as rendered was sought to be annulled or revised. Embodied in the proceedings in that case was an action. So in the other cases cited involving motions in the nature of the old application for a writ of error coram nobis. Proceedings strictly of this nature are actions which must of necessity end in a judgment. Milam County v. Robertson, 47 Tex. 222; McClelland v. Moore, 48 Tex. 355; Cruger v. McCracken, 87 Tex. 584, 30 S.W. 537.

In a sense, an action is a judicial proceeding which, if prosecuted effectively, results in a judgment. Dinsmore v. Barker, 61 Utah 332, 212 P. 1109; Elmo v. James, Tex.Civ.App., 282 S.W. 835, 839.

It is not every ruling of a court that amounts to a judgment which will, in and of itself,-support an appeal. For instance, the quashing of a citation, sustaining of a special demurrer, the granting or refusing of a continuance are not such.

Appellants may or may not have been entitled to have the court proceed with cause No. 429. Their application to proceed was unquestionably in proper form. A commendable consideration was displayed. in giving notice to the party interested as to the filing of the application to proceed with the trial of the cause. Even though, they had a right to proceed, will the denial of that right change the effect of the judgment on the minutes of the court? We think not.

The gravamen of appellants’ motion to proceed with the trial was that it was affirmatively shown by the record that the judgment was interlocutory in character, hence they had a right to proceed to trial. Certainly they had no right to demand from the court a declaratory judgment to the effect that the judgment in cause No. 429 was an interlocutory judgment. If the court had acceded to the demands of plaintiffs -and so declared it and proceeded with the trial, in our opinion, such action would have been without effect on said existing judgment. The motion did not seek a new trial in the cause; the theory was there had never been a trial, or at least only a partial trial, of the cause.

We are not unaware, and do not ignore the fact, that the trial court probably acted on the conviction that the action was already terminated by a final judgment. To this view we neither assent nor dissent. We hold the action taken simply amounted to a refusal to try. Such action, whether evidenced by a written order or otherwise, is npt a judgment. It neither sends the case opt of court for trial, nor is it an adjudication on the merits of the action. If, before the ruling, No. 429 was a pending action, it is still so.

In the case of Askew v. Rountree, 111 S.W.2d 1133, the San Antonio Court of Appeals held that an order overruling a motion to redocket and retry a divorce case after entry of decree was not “a final judgment as would support an appeal.” This holding was consistent with its previous holding in the case of Avant et al. v. West-Pyle Cattle Co., 70 S.W.2d 207. We think the case of Banks v. Blake, Tex. Civ.App., 171 S.W. 514, writ denied supports that proposition. Likewise, in a easure, the case of Goodman v. Mayer, 3 Tex. 319, 128 S.W.2d 1156.

It is ordered that the appeal be dismissed.


author: DUNKLIN, Chief Justice.

text:
    TEXAS LIQUOR CONTROL BOARD v. CANNON.
    No. 14219.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1940.
    Rehearing Denied Feb. 21, 1941.

      Gerald C. Mann, Atty. Gen., and M. C. Martin, W. P. Watts, Fred C. Chandler, and George W. Barcus, Asst. Attys. Gen., for appellant.
    Sam B. Spence and J. E. Rexford, both of Wichita Falls, for appellee.
    Rice M. Tilley and R. V. Nichols, both of Fort Worth, amici curiae.
   DUNKLIN, Chief Justice.

Ever since July 1st of the year 193S, Clifford Cannon, doing business in the trade name of Clifford Cannon Drug Store, has operated a retail pharmacy drug store at house number 304 in'the town of Burk-burnett, in Wichita County, Texas, which is a local option district. When he began his business he procured from the State Board of Pharmacy a permit to operate it as a retail pharmacy, and has procured one such every year since the first.

The last three of those certificates were as follows: Permit No. 2557, dated November 16, 1938, reciting that it was effective from June 1, 1938, to May 31, 1939; Permit No. 2642, issued December 7, 1939, reciting that it was effective from June 1, 1939, to May 31, 1940; Permit No. 277, applied for and issued June 7, 1940, but ante-dated ’ June 1, 1940, reciting that it was effective from June 1, 1940, to May 31, 1941.

On September 7, 1940, he filed with the Liquor Control Board his application for a medicinal permit to sell or dispense liquor for medicinal purposes. ' On September 24, 1940, the application was duly considered by the Board, after due notice to the applicant; at the conclusion of, which the application was refused on the ground “that the pharmacy for which the permit is applied has not been in operation as a pharmacy for a period of two years next preceding the filing of the application.”

Thereafter this suit was instituted in the district court of Wichita County against the Liquor Control Board, by Clifford Cannon, to set aside and annul that order. And upon trial of same, the court rendered judgment granting plaintiff that relief; from which judgment the Board has prosecuted this appeal.

By Article 4542a, Vernon’s Texas Civil Statutes, as amended in the year 1935 by Acts of the 44th Legislature, “The State Board of Pharmacy” was created, and given authority to issue permits to pursue the business of retail pharmacist, and to determine qualifications of applicants therefor. By Sec. 17 of that Article, every person who desires to continue operating a retail pharmacy or drug store after passage of that Act, is required to secure a permit from the Board; the permit to be issued annually upon receipt of proper application, accompanied by a fee of two dollars.

Following are provisions of Article 4542a:

“Sec. 19. A ‘pharmacy’ or ‘drug store’ as used in this Act is any store or place where drugs or medicines are sold or furnished in any bona fide manner at retail to the consumer wherein a registered pharmacist is continuously employed.
“Sec. 20. A ‘pharmacist’ as used in this Act, means a person licensed by the State Board of Pharmacy, to prepare, compound and dispense physicians’ prescriptions, drugs and medicines and poisons.”

By Art. 666 — 5, Vernon’s Texas Penal Code, the “Texas Liquor Control Board” is created. Article 666 — 2 reads: “This entire Act shall be deemed an exercise of the police power of the State for the protection of the welfare, health, peace, temperance, and safety of the people of the State, and all its provisions shall be liberally construed for the accomplishment of that purpose.”’

By Art. 666 — 6 the Board is vested with power, to grant, refuse or cancel permits or licenses for the sale of alcoholic beverages.

By Art. 666 — 13 it is provided that any permit granted shall be a purely personal privilege, revocable for causes stated in the Act, and shall not constitute property.

Art. 666 — 15 (18) reads in part as follows: “Medicinal Permits. Retail Pharmacists shall be entitled to receive medicinal permits and sell or dispense liquor for medicinal purposes only. The holders of such permits are authorized to purchase liquor from holders of wholesaler’s permits in this State. Any pharmacy for which a permit is sought must be a bona fide pharmacy registered with the State Board of Pharmacy; must employ and have on duty at all times a registered pharmacist • and must have been in operation as a pharmacy for at least two (2) years in the particular political subdivision in which a permit is sought.”

By Art. 666 — 41, the violation of any provisions of the act is made a misdemeanor, with a prescribed penalty.

The point made by appellant is to the effect that the Board of Pharmacy was without authority to issue a permit with retroactive effect covering a period of time already expired. It is then argued that during the period intervening between June 1, 1939, and December 7, 1939, the date of Permit No. 2642, plaintiff was not a bona fide pharmacy registered with the State Board of Pharmacy, doing business as a pharmacy for a period of two years next preceding the issuance of his last permit No. 277, issued June 7, 1940, but ante-dated June 1, 1940, and extending from June 1, 1940, to May 31, 1941, which was the basis of the action of the Texas Liquor Control Board in refusing the permit, because of the untrue representation in plaintiff’s application to the Texas Liquor Control Board for a medicinal permit, that he had been continuously registered with the State Board of Pharmacy for a period of two years next preceding the application' — which, under the provisions of Article 666 — 12, Subd. 3, is a ground for cancellation of a medicinal permit after its issuance.

That a medicinal permit to sell and dispense liquor for medical purposes does not constitute a property right, but is a purely personal privilege, revocable for causes stated in the act — to which the holder of the permit assents by accepting it —is not only one of the specific provisions of the act, but is sanctioned by a well established rule of decisions in this State and other states, such as State of Texas v. DeSilva, 105 Tex. 95, 145 S.W. 330; Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300; Connell v. Texas Liquor Control Board, Tex.Civ.App., 142 S.W.2d 732; 37 C.J., para. 100, page 243. And para. 102, page 244, reads: “As a general rule a license to pursue a given occupation or business takes effect from its actual issuance or delivery; and unless there is a statutory provision to that effect it does not relate back so as to protect the licensee for acts done prior to the actual issue of the dicense, such as from its date, or from the date of the act or order granting it.”

Appellant concedes that the annual fee of $2 was required for revenue purposes, and that ,the same could have been paid at any time during the year, covered by the permit, citing Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56. But that the requirement that the applicant for the permit must have been a registered pharmacy and operating as such for a period of two years next preceding the date of the application for the permit is the controlling test. We concur .in that view. Furthermore, we believe it clear that Art. 666, with its many subdivisions, was not enacted for revenue purposes, but that it was designed to insure proper medicine for the sick and to curb the sale of liquor for beverage uses.

Especially when the rule of liberal construction is applied, we believe it clear that the word “pharmacy” in the concluding portion of Sub. (18) of Art. 666— 15, means a duly registered pharmacy.

In briefs filed here by Hons. Rice Tilley and R. V. Nichols, as amici curiae, under permission of this court, the point is made that the attack made on the permits granted by the Board of Pharmacy, with statutory jurisdiction to .issue such permits, is a collateral attack, governed by the same rules as a collateral attack on a judgment of a court, and that the attack will not prevail unless it appears that the issuance of the permit was beyond the jurisdiction of that Board. The soundness of that contention is supported by the following authorities cited: Railroad Commission v. Marathon Oil Co., Tex.Civ.App., 89 S.W.2d 517, writ refused; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 372; Producers’ Refining Co. v. Missouri, K. & T. Ry. Co. of Texas, Tex.Com.App., 13 S.W.2d 679; 51 C.J. page 67.

However, we believe it manifest that the Board, whose powers were prescribed, was without authority to make the permit retroactive, as appears from the face of the permit, and therefore, to that extent, the permit was void and subject to collateral attack.

See also Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 66 A.L.R. 916.

Accordingly, appellant’s assignments of error are sustained; the judgment of the trial court is reversed and judgment is here rendered, sustaining the order of the Texas Liquor Control Board, refusing the permit in controversy.


author: FOLLEY, Justice.

text:
    COTTEN v. STANFORD et al.
    No. 5255.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 3, 1941.

      John J. Watts, of Crane, and Vickers & Campbell, of Lubbock, for appellant.
    R. L. Graves, of Brownfield, for appel-lees.
   FOLLEY, Justice.

On May 17, 1927, the appellee, P. G. Stanford, recovered a final judgment in cause No. 85 in the County Court of Yoakum County in the sum of $472.70 against J. B. Cotten and Otto Cotten. On June 11, 1927, an execution was duly issued on this judgment and delivered to the sheriff of Yoakum County and by him returned unexecuted because no property was found subject to the execution.

In October, 1939, another execution was issued upon the above judgment and placed in the hands of Joe B. Ellison, Sheriff of Yoakum County, who levied upon certain personal property belonging to J. B. Cotten, the appellant herein. Thereupon the appellant and Otto Cotten filed this suit in the County Court of Yoakum County seeking to restrain the sheriff and P. G. Stanford from selling the property upon which the levy was made. They alleged that under the provisions of article 5532, R.C.S., the judgment in cause No. 85 was dormant and barred by limitations because more than ten years had elapsed between the issuance of the first execution in June, 1927 and the last execution in October, 1939, and, in addition to the injunctive relief, they sought to cancel the judgment.

The appellees answered alleging the validity of the judgment in cause No. 85 and denying that the same was dormant or barred by limitation. They further alleged that subsequent to the first execution of June, 1927, a second was issued on January 13, 1934; a third on August 21, 1937; a fourth on November 1, 1937; and the one in controversy on October 10, 1939. By what we construe as an alternative plea the appellees also alleged that if they were mistaken as to their asserted defenses the appellant, J. B. Cotten, was indebted to the appellee Stanford in the sum of $472.70, wherefore they prayed that J. B. Cotten take nothing by his suit, that the injunction be denied and that Stanford have judgment for his debt.

On December 11, 1939, at a hearing before the court, an injunction was granted in which it was recited that the “Clerk of this court is hereby directed to issue Writ of Injunction against Joe B. Ellison and P. G. Stanford, permanently restraining them and each of them from attempting to sell any property belonging to the said J. B. Cotten in satisfaction of a certain judgment recovered by P. G. Stanford in May of 1927 in the sum of approximately $500.00”. The judgment further provided that prior to the issuance of the injunction J. B. Cotten should execute and file with the clerk -a bond payable to Stanford in the sum of $2,000 “conditioned that the said J. B. Cotten shall abide the decision which may be finally made in this cause * * *

On March 8, 1940,' at a subsequent hearing, apparently upon the same pleadings, the trial court entered another judgment which is denominated a “Final Judgment” in which the court made certain findings of fact and then decreed that the injunc-, tion theretofore issued was dissolved; that J. B. Cotten take nothing by his suit and that all further relief asked for by the parties to the suit be denied. In this connection it should be stated that the court in his findings of fact preceding his decree found that the judgment in cause No. 85 was valid, subsisting and unsatisfied and that the property levied upon was subject to the payment of such judgment, but the gourt failed to “order and decree” such judgment valid or revived or to grant any affirmative relief to the appellee Stanford other than to dissolve the injunction. It is from this judgment that this appeal is prosecuted by J. B. Cotten, the sole appellant, who makes the same contentions in this court which he asserted in the trial court.

The appellee Stanford has filed a motion to dismiss this appeal because the transcript was not filed in this court until April 26, 1940, which was more than 20 days after the entry of the judgment of March 8, 1940. He asserts that the judgment appealed from was merely a dissolution of a temporary injunction and under article 4662 of Vernon’s Revised Civil Statutes no appeal may be prosecuted therefrom unless the transcript is filed with the clerk of this court within 20 days after the entry of the judgment.

We are of the opinion the judgment of the date of December 18, 1939, regardless of its language indicating the contrary, was no more than a temporary injunction. The requirement for the bond therein, the indication of a future hearing and the failure of the court to adjudicate all of the issues involved in the suit, necessarily results in the conclusion that such injunction was only temporary. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959. However, it is further our opinion that the judgment of March 8, 1940, constituted more than a mere order dissolving the temporary injunction theretofore issued. Although the dissolution of the temporary injunction was all the affirmative relief actually granted, all other relief sought by the parties was specifically denied, which resulted in an adjudication of all the issues before the court and therefore became a final judgment. This being true, the cause is not governed by the provisions of article 4662 and the motion is overruled. McKenzie et al. v. Withers et al., 109 Tex. 255, 206 S.W. 503; Hamner v. Garrett et al., 63 Tex.Civ.App. 208, 132 S.W. 951.

There appears in the transcript an agreement of the date of November 14, 1939, made between the attorneys for the parties, with the approval of the county judge, to the effect that if the injunction should be denied the record might consist of the pleadings of the parties and the judgment of the court, and that the statement of facts might consist of the deposition of P. G. Stanford and the execution and docket entries in cause No. 85. This agreement was apparently made prior to the issuance of the injunction above mentioned and therefore prior to its dissolution. In the deposition of the appellee, P. G. Stanford, which is included in the transcript, he testified in substance that subsequent to the issuance of the execution óf June 11, 1927, four or five additional executions were made out by the clerk of the county court and delivered to him in person; that some of these executions were, at his request, addressed to the sheriff of Crane County and the others to the sheriff of Pecos County; that he sent one or two of these executions to Joe Byars, an attorney at Crane, Texas, and the others were sent to M. G. McDonald, an attorney at Odessa, Texas; that he instructed these attorneys not to attempt to make a levy unless they found sufficient funds or property to cover the judgment; that he never did send any execution to anyone other than these attorneys; that all of the executions were returned to him by the attorneys except possibly one; that the county clerk made notations on his execution docket in the witness’s presence on each occasion the executions were delivered to him; and that if the execution docket showed the first execution issued on June 11, 1927, the second on January 13, 1934, the third on August 21, 1937 and the fourth on November 1, 1937, these dates would constitute approximately the dates he received the executions.

Notwithstanding the above testimony from the appellee Stanford, in the findings of fact incorporated in the judgment of March 8, 1940, the trial court found that on January 13, 1934, Stanford had an execution issued out of cause No. 85 directed to the sheriff of Crane County “and sent to him for service but as far as the records are concerned it is not shown whether the same was returned or not”. The trial court further found that Stanford had three other executions issued out of cause No. 85, two of which were of the date of August 21, 1937, and the third of the date of November 1, 1937, and that Stanford mailed each of them to' lawyers in Crane and Pecos Counties but that they were each returned by such lawyers without having been delivered to an officer for service.

The appellant contends that the final judgment herein was based solely upon the deposition testimony of P. G. Stanford and that the trial court was unauthorized to make the finding to the effect that an execution was issued on January 13, 1934, and sent to the sheriff of Crane County for service. The appellees assert there was other testimony introduced at the trial in support of such finding. While the record on this appeal is very unsatisfactory in showing the true situation in this respect, we are of the opinion the controversy thus presented becomes immaterial. Granting that the finding of the trial court is true and supported by the testimony, still it does not meet the requirements as to the issuance of an execution. Viewed in its most favorable light the finding is too indefinite to show an “unconditional delivery to an officer for enforcement in the manner provided by law”. Harrison v. Orr, Tex.Com.App., 296 S.W. 871, 876. At most, the finding is merely to the effect that the execution was sent to the sheriff. It is not shown how it was sent, by whom it was sent nor whether or not it was received by the sheriff. Moreover, the presumption prevails if the writ had come into the hands of the sheriff he would have made his return of it to the clerk of the court from which it issued. Schneider et al. v. Dorsey et al., 96 Tex. 544, 74 S.W. 526. The term “issue”, within the meaning of articles 3773 and 5532, Vernon’s Revised Civil Statutes, “means more than the mere clerical preparation and attestation of the writ, and requires that it should be delivered to an officer for enforcement”. Bourn v. Robinson, 49 Tex.Civ.App. 157, 107 S.W. 873, 875 ; 23 C.J. 361, par. 114. It therefore follows there was no sufficient showing or finding that an execution issued in cause No. 85 from June 11, 1927, until the issuance of the last execution on October 10, 1939, which is the subject of the injunctive relief sought herein. Such being true, more than ten years intervened between the issuance of the first and the last execution and the judgment in cause No. 85 was dormant at the time the execution of October 10, 1939, was issued. Furthermore since no judgment was rendered by the trial court herein reviving the judgment in cause No. 85 or granting to the appellee Stanford a recovery of any sort, the judgment in the original suit is still dormant (Fitzgerald v. Evans & Huffman, 53 Tex. 461), and as such it will not only fail to support an execution' but will authorize an injunction against the seizure and sale of property thereunder. 18 Tex. Jur. 611, par. 68; Buie v. Crouch, 37 Tex, 53; North et al. v. Swing et al., 24 Tex. 193; Willis et al. v. Stroud, 67 Tex. 516, 3 S.W. 732; Spiller et al. v. Hollinger, Tex.Civ.App., 148 S.W. 338; Dupree et al. v. Gale Mfg. Co., 107 Tex. 649, 184 S.W. 184.

Having held that the judgment in cause No. 85 is dormant, it becomes immaterial for us to pass upon the question of limitation. As indicated in our recent decision in Gartin v. Furgeson, 144 S.W.2d 1114, under the authorities therein cited we thought it settled that a judgment is barred after ten years have expired from the date of the last execution. To this holding we still adhere but in view of another trial herein we call attention to the fact the Supreme Court of this State has granted an application for a writ of error in Zummo Packing Co. v. Cotham, 135 S.W.2d 177, wherein the only question decided was that of limitations under facts identical in substance with those of the instant case and of the case of Gartin v. Furgeson, supra.

The judgment is reversed and the cause remanded.


author: SMITH, Chief "Justice.

text:
    SMITH v. ROGERS.
    No. 10829.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1941.
    H. D. Barrow, of Jourdanton, and Magus F. Smith, of Pleasanton, for appellant.
    Fritz C. Sorrell, of Pearsall, for appellee.
   SMITH, Chief "Justice.

Appellant’s statement of the nature and result of the suit, adopted by appellee, is as follows:

“Plaintiff C. W. Rogers filed in the County Court of Frio County, Texas, on April 21st, 1939, an application for a Writ of Garnishment alleging in effect that Garnishee, Magus Smith, was then indebted to one J. M. Hannegan or had in his hands effects belonging to said Han-negan. The Writ of Garnishment was issued and served on the Garnishee on said date. At the next term of the Court, the Garnishee filed his answer thereto denying any indebtedness to said Hannegan and denying that he had in his possession any effects belonging to said Hannegan when the Writ was served or at any time thereafter.
“Thereafter at the same term the plaintiff filed his controverting affidavit alleging in effect that the Garnishee’s answer was not correct because one Fritz C. Sorrell had paid to the Garnishee at approximately 5 :00 o’clock p. m.. on April 21st, 1939, the sum of $275.00 cash belonging to defendant Hannegan for delivery to the defendant Hannegan and that the Writ of Garnishment was served at about 5:40 o’clock p. m. on the same date.
“Upon the issues thus joined, the case was submitted to the jury on Special Issues to which the jury answered to the effect that the Garnishee, Magus Smith, had in his custody the sum of $275.00 belonging to Hannegan; that the Garnishee had in his control the sum of $275.00 belonging to Hannegan and that the Garnishee was indebted to Hannegan in the sum of $275.00. Upon the verdict thus rendered, the court rendered judgment in favor of the plaintiff and against the Garnishee,” who has appealed.

On the trial no witness testified as to the merits except Magus Smith, Esquire, the garnishee.’ Pie testified, in effect, that Fritz C. Sorrell, Esq., as attorney for one Carvel Collins, delivered to Smith, as Hannegan’s attorney, the sum of $275, in currency, which Collins owed Hannegan, the judgment debtor, to be in turn paid over by Smith to Iiannegan; that Smith accepted the money with much reluctance, and in a few minutes, desiring to be rid of it, took it down the hall from his office, intending to deliver it to a Dr. Howard in the latter’s nearby office; that on reaching Dr. Howard’s office he saw the latter was busy, whereupon he handed the money to Miss Ora Park, Dr. Howard’s office assistant, without any explanation, and returned to his office; that Miss Park followed the witness back to his office and in answer to her inquiry he told her to give the money to Hannegan when he called for it; that “some fifteen, twenty or twenty-five minutes” later the witness (garnishee) was served with the writ of garnishment in the case. About an hour later, and therefore after the writ was served, Hannegan called on Smith for the money; Smith informed him that Miss Park had it, whereupon Hannegan called on her and she turned it over to him.

The alternative questions recur, then: Was Smith indebted to Hannegan, or did he have in his possession effects belonging to Hannegan, at the time the writ was served upon him?

It has been well said that “The rule seems to be well established in this state that, in a garnishment proceeding strictly, the only issue to be determined, or which could be properly determined, as between the plaintiff in garnishment and the garnishee, is whether the garnishee was indebted to the defendant in the main suit or had in its possession effects belonging to him. The proceeding is strictly statutory, and the issues to be determined in such proceeding are clearly defined by the statute, and it is well established that the rules of equity have no place in such exclusively statutory proceeding, and that such aid cannot be invoked therein.” Smith v. Bank, Tex.Civ.App., 202 S.W. 181, 183.

By accepting the money from Sorrell the garnishee became obligated only to exercise ordinary care to deliver it to Hannegan, by whatever processes or agencies he might elect to employ in the exercise of ordinary care. He delivered the property to a third party, thereby surrendering possession which he never regained, and in due course the third party completed the transaction by delivering the property to its rightful owner, the defendant in garnishment. The possession of the garnishee at the time served was conditional, at the most, and only by unnecessary implication, and this was not sufficient to constitute possession under the statute.

But the jury did find that Smith was “indebted” to Hannegan at the time, and that finding, being statutory, must be dealt with. As the evidence was undisputed, the question is one of law. We are of the opinion that the garnishee was not “indebted” to the judgment debtor within the contemplation of the statute.

In the legal, as well as practical and moral sense, the garnishee’s maximum liability to the judgment debtor was never more than that of bailee, burdened with the duty of exercising care and diligence to protect the property from injury or loss. When the garnishee yielded possession of the property to a third party his only liability to the debtor was, as before, for damages in event of loss or injury traceable to his fraud or negligence. The subsequent service of the writ of garnishment upon him could not have the effect of changing his status, or liability, from that of bailee to that of debtor. Mensing v. Engelke, 67 Tex. 532, 537, 4 S.W. 202.

We hold, then, that appellee failed to meet the strict requirements exacted of garnishors under the statutes, in that the garnishee was not shown to be in possession of effects belonging to the debtor, Hannegan, when served with the writ; nor was he shown to be indebted to the garnishor within the strict meaning of the statutes. Arts. 4078, 4084, R.S.1925.

The judgment must be reversed, and as. the material facts appear to have been, fully developed below, judgment will be-here rendered that appellee take nothing, and pay all costs of the garnishment proceedings.

Reversed and rendered.


author: WALTHALL, Justice. PRICE, Chief Justice.

text:
    WILDER v. AMERICAN PRODUCE CO. et al.
    No. 3781.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 12, 1940.
    Rehearing Denied Feb. 6, 1941.
    C. C. Carsner, of Victoria, for appellant.
    Edward L. Dunlap and John S. Hadley, both of Victoria, for appellees.
   WALTHALL, Justice.

This suit was brought by H. S. Wilder against the American Produce Company to recover title to and possession of a small parcel or strip of land in the City of Victoria, Victoria County, Texas. The suit is in trespass to try title to the land involved, and as described in plaintiff’s petition. The land apparently involved in the suit and the land claimed by defendants was at that time partly occupied by the cold storage plant of appellee American Produce Company. The Company implead-ed its grantor, Mrs. Caroline Wilden, a feme sole, the other appellee under its warranties of title, each of whom answered and pleaded not guilty, and further pleaded the statutes of three, five and ten years’ limitation, improvements in good faith, and that the land in controversy was a part of a. seventy varas strip of land dedicated by the town of Victoria as a roadway. Other parties than the two defendants above mentioned were joined as defendants, but disclaimed and were dismissed in the judgment.

The court instructed a verdict in favor of the defendants named, and based on the verdict as instructed the court overruled Wilder’s motion for a hew trial, and entered judgment for defendants, appellees here.

Appellant duly excepted, gave notice, and prosecutes this appeal.

Appellant, by some eight propositions, submits that the court erred on each of the several grounds mentioned in instructing a verdict for appellees.

The trial court did not file findings of fact and conclusions of law, nor did the court in the judgment indicate the ground or grounds upon which he based his instructed verdict for the defendants.

If we look to defendants’ (appellees’) motion as stating the ground upon which the court instructed the verdict, the motion is that, the deed from the City of Victoria to H. S. Wilder, dated the 17th day of April, 1928, is totally void and of no force or effect to convey any land or any right in land whatsoever, for the reason that said deed was not authorized in the manner and with the solemnities under the charter provisions and ordinances of the City of Victoria, Texas, in that the resolution authorizing the Mayor and City Secretary to execute said deed was not read at three regular meetings of the City Council; said deed was passed finally on first reading by said Council, contrary to Section 71 of the Charter of said City. Further, that said deed of said City of Victoria to said H. S. Wilder, dated the 17th day of April, 1928, is void for the reason that the description of land therein attempted to be conveyed is vague and indefinite, and that no land can be located from said description.

Other grounds than the above for instructing the verdict are in the motion, but having fully examined and considered the entire record, the unqualified evidence shows that the resolution or ordinance, whichever it may be, of the City Council authorizing the sale of the land to Wilder was read only one time by the City Council and was finally passed by the Council on its first reading, while the City Charter requires that the passage of the ordinance or resolution shall be by reading the same at three regular meetings.

There is no statement that the court sustained the motion, but the court instructed the verdict, and we will assume that the motion embraced the grounds upon which the instructed verdict was given.

The parties to this appeal agreed:

“1. That the land in controversy in this cause of action is wholly within the original four-league grant by the State of Texas to the corporation of the town of Victoria, Victoria County, Texas.
“2. That the land in controversy at the present time is not within the corporate limits of the City of Victoria, Texas, and that the present corporation, the City of Victoria, succeeds to the title, if any, of all lands within the four-league grant not previously sold by it, but without the corporate limits of the City as reduced by the Act of 1879.”

It appears by the record that the City of Victoria, acting by its Mayor and Secretary, naming each one, “herein duly authorized by the City Council by an order entered upon the minutes of said Council on the 18th day of April, 1928, has granted, bargained, sold and quitclaimed, and by these presents does grant, bargain, sell and quitclaim unto the said H. S. Wilder, all of its right, title and interest and claim in and to that unsold portion of the Four-League Grant to the Town of Victoria designated as a Reservation for levee purposes, and being all the land belonging to the City of Victoria lying on the north bank of the Old River from its upper mouth to the crossing of the G. H. & S. A. Ry. Company’s track by a county road west of the Planters Gin and Mill Company. Said strip of land not to exceed seventy (70) varas in width.” Then follow some statements in the deed with reference to the intention of the city executing the deed, not necessary to state. Then follows the signature of the City of Victoria by its Mayor and Secretary, each signing officially. The deed was duly acknowledged and recorded.

As evidence of the establishment and dedication of the Reservation of the Levee District, referred to in the deed to Wilder, plaintiff offered in evidence a resolution of the Town Board of Victoria of date March 12, 1850, stating that the Board met, naming those present, and referred to some orders of the Board with reference to some instructions given by the Board to the Surveyor as to the land embraced in the Four-League Grant.

Appellees insist, and so pleaded, that the land claimed by appellant to be a Levee Reserve was in fact an admitted public road dedicated by the Town of Victoria and left as a road at the time the town sold the abutting farm lots; and further, that the deed from the town of Victoria to appellant is void for the reason that the charter ordinance of Victoria in making the sale of the land to appellant was not observed, in that appellant is claiming title under his deed to an admitted public road, the deed executed under a mere resolution of the Board.

Without discussing other grounds relied upon by appellees as stated above, than that appellant’s deed was void because the resolution or ordinance of the Council in authorizing the conveyance of the land did not conform to the provision of the City Charter, in that same was not read at three regular meetings of the Council, but was passed on its first reading, we concur in ap-pellees’ contention that to authorize the deed, the resolution or ordinance must be read at three meetings of the council, which was not done. 45 Corpus Juris, p. 1352, and notes there used. A city ordinance may not contravene its charter. City of Terrell v. Howard, Tex.Civ.App., 85 S.W.2d 283, and cases there used.

It also seems to us, after a study of the record, that the land involved in the suit has not been sufficiently identified by the calls in the deed or otherwise to entitle appellant to a judgment.

We have concluded that the court was not in error in instructing the verdict.

The case is affirmed.

On Rehearing.

PRICE, Chief Justice.

In the original opinion it was stated that “This suit was brought by H. S. Wilder against the American Produce Company to recover title to and possession of a small parcel or strip of land in the City of Victoria, Victoria County, Texas.” The land involved is not in the City of Victoria. The agreement of the parties on the trial was as follows:

“1. That the land in controversy in this cause of action is wholly within the original four-league grant by the State of Texas to the corporation of the town of Victoria, Victoria County, Texas.
“2. That the land in controversy at the present time is not within the corporate limits of the City of Victoria, Texas, and that the present corporation, the City of Victoria, succeeds to the title, if any, of all lands within the four-league grant not previously sold by it, but without the corporate limits of the City as reduced by the Act of 1879.”

In the motion for rehearing it is urged that Section F, page 65, Charter and Ordinances, City of Victoria, Texas,.as follows: “Ordinances authprizing contracts, appropriations or expenditures in excess of $1,-000.00, or any lease or sale, under the city charter, shall be read in full at three regular meetings,” is an ordinance of the City of Victoria, and not a charter provision. In passing on the motion for rehearing, we shall assume that this is correct, and that same is not a charter provision. Our confusion arose from the fact that it appears in the statement of facts denominated as a quotation from the Charter and Ordinances of the City of Victoria.

It is an axiomatic principle that in trespass to try title recovery by plaintiff is conditioned on a showing of title or the right to immediate possession.

If plaintiff has title, it was conveyed to him by the deed from the City of Victoria dated the 17th day of April, 1928. This deed purports to have been authorized by resolution of the City Council passed on the 15th day of April, 1928. It affirmatively appears that Section F of the City Ordinances was not complied with, in that same was passed on first reading. Now, if Section F was an ordinance, as we have assumed, we think that until repealed it was binding upon the City Council and on all parties claiming rights from and under the City. The ordinance was a self-imposed limitation. We take it that same could not be repealed save by an ordinance. It might be said that this ordinance has no application here, in that the quoted section relates only to ordinances, and this was by resolution. Assuming, for a moment, that the City had the power to convey land owned by it in pursuance of a resolution. Section 71 of the Charter provides: “No ordinance or resolution shall be passed finally on the date of its first reading, except in the case of public emergencies, and then only when requested by the Mayor in writing; provided, that no ordinance or resolution making a grant of any franchise or special privilege shall ever be passed as an emergency ordinance.” Now this resolution, it is affirmatively shown, was passed on the date of its first reading. There is in the record no evidence of a public emergency.

There is an intrinsic distinction between action by a city through ordinance and resolution. A long line of cases draws this distinction. Briefly, it may be said that an ordinance is legislative action, and a resoluton is administrative in character. But the charter limitation here is the same as to each character of municipal legislation.

It seems to have been assumed that the City had the power to convey this land. Nowhere in the brief on the motion for rehearing is there a specific designation of how this power was conferred; the manner of the exercise of such purported power is nowhere pointed out, save in Section 71 of the Charter and Ordinance F, before quoted.

If a city be authorized to convey land, it would seem to us that the action should be by ordinance rather than by resolution. If by resolution, that same should be preceded by authorization by charter or ordinance. The City of Victoria owned a large area of land outside its limits. The purpose for which it could be disposed of and the manner of the sale thereof most certainly were matters appropriate for permanent regulation. Permanent regulation is ordinarily a matter achieved by legislative rather than administrative action.

Under the plaintiff’s own theory, this property had been dedicated to a public purpose. It would seem that same should not be conveyed away without some of the safeguards of publicity.

We adhere to our views expressed in the original opinion that this purported conveyance was void.

Motion for rehearing is overruled.


author: CODY, Justice. MONTEITH, Chief Justice.

text:
    INDUSTRIAL INDEMNITY EXCHANGE v. SOUTHARD et al.
    No. 11042.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 3, 1940.
    Rehearing Denied Feb. 13, 1941.

      Lightfoot, Robertson, Saunders & Gano, of Fort Worth, and B. F. Edwards, of Clarksville, for plaintiff in error.
    Pat Beadle and Burnell Waldrep, both of Clarksville, for defendants in error.
   CODY, Justice.

This is a suit by the widow and orphan of Elbert Vaughn Southard to recover compensation on account of his death while engaged in hauling logs for the Kurth Lumber Manufacturing Company. The principal ground of defense urged is that the undisputed evidence conclusively shows that the deceased, who owned the truck he was driving, and maintained its upkeep and supplied the lubricating oil and gas which he used, was, at the time of his injuries, “engaged in what may be termed a ‘special employment’ analogous to that of an independent contractor”, and was not an employee of the Kurth Lumber Manufacturing Company, within the meaning of the Workmen’s Compensation Act, Vernon’s Ann. Civ.St. art. 8306 et seq., at the time he sustained the injuries which caused his death.

The jury found in answer to the special issues which were submitted:

1. That the deceased died as a result of injuries received by him while unloading logs at the Kurth Lumber Manufacturing Company on October 10, 1938.

2. That the Kurth Lumber Manufacturing Company did retain the right to control the means and method used by deceased in performing the details of the work he was engaged in for it.

3. That no employee of the same class as claimant worked substantially the whole of the year immediately preceding claimant’s death in the same or similar employment.

4. That a fair and just rate of compensation was $15.86 per week.

5. That manifest hardship and injustice would result unless compensation was paid in a lump sum.

Before the court’s charge was submitted to the jury appellant moved for an instructed verdict, and after the verdict was returned, it moved for judgment non obstante veredicto, which motions were overruled. And the court rendered judgment for ap-pellees and against appellant for $2,962.93 —or 360 weeks in lump sum.

It is necessary to set forth the substance ■of the evidence to determine whether or not it conclusively established deceased to be an independent contractor, or whether or not it was sufficient to go to the jury on the point relative to whether the Lumber Company retained the right to control and direct the manner, means, and method used by deceased in performing the details of the work he was engaged in for the Lumber Company.

The Kurth Lumber Manufacturing Company operates a mill at Clarksville. It required logs, of course, in order to operate, and this required the felling of trees, the trimming of them, and hauling the logs thus obtained from the woods where they were obtained to the mill. Naturally the transportation of logs from woods to mill is an essential step in the manufacture of lumber. The Lumber Company had its woods foreman or boss, whose job it was to keep the mill supplied with logs. And logging operations included the buying of timber, cutting and trimming it, laying out roads from the place in the woods where the timber is cut to the highway, and the maintenance of such roads while the logs are being hauled. Under the woods boss was a foreman of the cutting crew, and a foreman of the loading crew, a foreman of the road crew, and a scaler to supervise the unloading of the logs after they have been hauled.

A tract to be cut was laid out in strips, and two truck drivers were assigned to a strip. The logs were too heavy to be loaded except by the use of teams, and to be unloaded except by a crane. The truck drivers had no independence with reference to loading the trucks, and none with reference to unloading. In the nature of things the roads were laid out by the company because they were necessary in order to get the logs out to the highway, and the same reason that made the laying out of such roads necessary made it necessary that the truck drivers use such roads as the Lumber Company laid out and maintained. The woods foreman testified that if the truck drivers knew of any better roads than those laid out by the company, they could use them. And there was but one highway leading from where the logs were obtained to Clarksville, so that the truck drivers necessarily used one country road.

The trucks which were used in hauling the logs to the mill did not belong to the Lumber Company. As indicated above, the deceased owned his own truck and paid its upkeep and furnished his gas and oil. In some instances the trucks used to haul logs to the Lumber Company were not operated by such owners, but were driven by employees of such owners. The Lumber Company paid for such hauling on a quantitative basis — so much per thousand feet hauled.

The deceased had been hauling for the Lumber Company some four years. The records show that during the year preceding deceased’s death he had worked 181 days for the Lumber Company, and that he had not.worked for any one else. In point of fact, however, all the owners of the trucks being used to haul for the Lumber Company could pull them out of such service at any time, and use them as they chose without any penalty except the loss of such truck’s “seniority” in service. That is, when the Company would lay off trucks from hauling, the trucks with the greatest seniority would be the last to be laid off.

The woods foreman gave out this letter to the truck drivers:

(Letter-head)
“J. H. Kurth, Jr., J. L. Spotten,
President Secretary.
“H. A. Maas, Vice President.
“Kurth Lumber Manufacturing Company, Inc.
“Capital $200,000.00.
■“Plant
“Clarksville, Texas. General Office
“Keltys, Texas.
“Capacity 20,000,000 feet per year.
“Clarksville, Texas.
“October 8, 1938.
“To the Truck Drivers:
“I thought it had been made plain to you in the past the necessity of very careful driving on all of our log hauls, but it must have been forgotten from the way some of you have been driving in the past few weeks. The company and most of the log haulers have been working hard for the past five years to make the roads safe for the truck drivers as well as the public. We ■cannot afford to let the few reckless drivers undo in just a few minutes all that we have accomplished in the past five years.
“I realize the disadvantage the • high-speed truck has driving behind a low-speed .truck, but it is absolutely necessary to pick your chances and find a suitable place to pass each other. It has been the practice •of several high-speed trucks to pass while •climbing hills as ordinarily it is easier -to pass a truck of low-speed on a hill than any other place, but you must realize that when two trucks pass one another on a hill that practically all of the road is taken up and that if a car or truck should meet you, a crash could not be avoided.
“I notice also, that some of the drivers will be driving at an average rate of speed but when another truck tries to pass, he will either pick up his speed or try to hold • the road. This must be stopped. All trucks must stay on their side of the road unless it is impossible as it was in the last few days when the road was being graded. If you are forced to drive on the left hand side of the road and you meet a vehicle, stop and let it pass you.
“Due to the terrible dust that we have had on the Albion road since it has been graded, it is necessary for all truckers coming in after dark to put a light on the end of their logs for it is impossible to see a truck ten feet ahead unless it has a light on the end of the 'logs. Be sure to have all lights ready before Monday night.
“Now, I expect all this to be carried out to a letter, and if any of you feel that you cannot do this, it would be better to quit now and save further argument.
“Yours truly,
“Kurth Lumber Mfg. Co., Inc.
“E. Q.. Bates
“Woods Foreman.”

It will be noted from the last paragraph of the letter that, however, euphemistically stated, the foreman considered that he could and would stop drivers who did not conform, from work. The requirement that the drivers obey traffic regulations is, of course, not evidence of control. Dave Lehr, Inc. v. Brown, 127 Tex. 236, 91 S.W.2d 693. But the very nature of the employment left no independence to a truck driver. There were two truck drivers to a strip and one loader. The driver was dependent upon the loader to get his truck, loaded, and the loader in turn was dependent upon the two truck drivers to be kept busy. The very necessity of co-ordinating the haul with the loading and unloading facilities, and the limitation of routes that could be used, shows that the truck drivers had no independence of action except as every citizen has such independence. Each driver, so long as he worked, was an integral part of the Lumber Company’s process of manufacturing lumber. It would seem that deceased was designated on the Lumber Company’s books as an independent contractor. However, he had been working for the company for four years. Whatever his right to quit his work may have been, he was working for the company steadily, and working for no one else. This fact created the presumption that he was an employee, and put the burden on appellant of showing that the relation was not that of master and servant. Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416. The fact that deceased furnished his own equipment, and was at liberty to use it as he pleased, does not constitute him an independent contractor. Schroeder et al. v. Rainboldt et al., 128 Tex. 269, 97 S.W.2d 679. We conclude that the evidence was sufficient to support the jury’s answer to special issue No. 2. It was essential to the proper functioning of the Lumber Company’s set-up that it retain the right to control and direct the manner, means and method used by the truck drivers hauling for it in performing the details of the work they were engaged in for said company.

We have carefully considered the authorities relied on by appellant, including Southern Surety Co. v. Shoemaker, Tex.Com.App., 24 S.W.2d 7; Cocke & Braden v. Ayer, 129 Tex. 660, 106 S.W.2d 1043; Lehr, Inc. v. Brown, 127 Tex. 236, 91 S.W.2d 693; Smith Bros. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145 (and Riggs v. Haden Co., 127 Tex. 314, 94. S.W.2d 152, which, like the Smith Bros, case, was passed upon by this court). In the division of labor, and because transportation of logs must be by truck, deceased was engaged in a different line of employment from other employees of the company, but it was not an independent line of employment. The employment was as integral as the cutting of the timber, as that of milling the timber after it was cut, and the conditions of loading and unloading and the line over which the logs must be hauled were sufficient to justify the Lumber Company in retaining the control which the jury found in answer to special issue No. 2, that it retained, and the proof, as we have stated, supports such finding.

We have considered the other assignments of error relating to special issue No. 2, and overrule them. We believe that the submission of special issue No. 2 was the submission of the issue of whether the deceased was an independent contractor, and that it was not error therefore for the Court to refuse to again submit the issue in'a different form.

We have considered the complained of argument of counsel, and the assignments relating thereto, and conclude they are without merit.

There being no reversible error, the judgment should be affirmed, and it is so ordered.

Affirmed.

On Rehearing.

Rehearing denied.

MONTEITH, Chief Justice.

I am unable to concur in the finding of the majority of this court that Elbert Vaughn Southard was an employee and servant of the Kurth Lumber Manufacturing Company, and not, as a matter of law, an independent contractor at the time he sustained the injuries which resulted in his death.

In arriving at this conclusion, I have taken into consideration every fact and circumstance in the record which would, in my opinion, tend to show such control over the action of the deceased by the Lumber Company as would constitute him its employee. In my opinion, the supervision exercised by the deceased in the manner, means and methods of doing the work in which he was engaged were not sufficient to constitute him an employee of the Lumber Company, when the fact that he was paid for 'the services rendered by him on the basis of the logs hauled, that he furnished the equipment used by him, and paid the expenses of its operation and repairs, and that the Lumber Company exercised no supervision over the number of logs hauled, the amount of work done, or the length of time devoted by him to his work for the Company, is taken into consideration.

These conclusions are based to a large extent on the cases of Smith Bros. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145, and Riggs v. Haden Co., 127 Tex. 314, 94 S.W.2d 152, both of which involved injuries to truck drivers and in both of which cases the facts are similar in all material respects to those in the instant case.

In each of the above cases the Commission of Appeals held that the drivers of the trucks involved were not employees, but that they occupied positions analogous to that of independent contractors.

For the above reasons, the judgment of the trial court should, in my opinion, be reversed and judgment here rendered in favor of the plaintiff in error.


author: COMBS, Justice.

text:
    COOK v. NACOGDOCHES COUNTY.
    No. 3663.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1941.
    Rehearing Denied Feb. 12, 1941.
    Seale & Thompson, of Nacogdoches, for appellant.
    Adams & McAlister, of Nacogdoches, for appellee.
   COMBS, Justice.

The appellant, H. M. Cook sheriff of Na-cogdoches County, filed this suit to recover $733.68 alleged to be due him by the County for expenses incurred in operating two automobiles belonging to him -in the discharge of his official business during the years 1937 and 1938. This amount represented the difference between the four cents per mile allowed by the statute, Vernon’s Ann.Civ.St. Art. 3899, Sec. (b), and the amounts actually paid him month to month by the Commissioners’ Court, which payments were accepted under protest. The County in addition to denying liability in any amount sued appellant by way of cross-action for $1,280 which it was alleged the Commissioners’ Court had illegally allowed and paid to appellant for feeding prisoners and also sought penalties in the amount of $14,375 for alleged failure to file the statement required by Art. 3897 Vernon’s Ann.Civ.St.; and in the alternative for penalty of $25 per day for the twenty-four days immediately preceding February 24, 1938. The trial was to the court without a jury and upon practically an agreed statement of facts. So far as is necessary to this opinion the agreed facts were as follows:

“It is agreed between the parties that tire plaintiff, H. M. Cook, was the duly elected and qualified Sheriff of Nacog-doches County, Texas during the years 1937 and 1938, and at all time germane to the pleadings of both parties to this suit; that Nacogdoches County, Texas was during 1937 and 1938, and at all times germane to the allegations of both parties, on a salary basis; that during the year 1937, and 1938, the plaintiff, H.. M. Cook, on each month presented to the Commissioners’ Court of Nacogdoches County, Texas a claim for expenses based upon a per mileage basis of four cents per mile, which were incurred in his official business ; that the Commissioners’ Court refused to purchase automobiles for the plaintiff, who was Sheriff, and that he was required to purchase his own automobiles and use the same in the discharge of his duties as Sheriff; that on each month when his claims were presented the Commissioners’ Court allowed him a maximum of $50100 per month; that when his claim, basqd on four cents per mile, exceeded $50.00 the Commissioners’ Court allowed him only $50.00; that when his claim was below $50.00 he was allowed only the amount of the claim; that column One on page three of plaintiff’s original petition represents a correct amount of expenses incurred by the plaintiff in operating his automobile, based upon four cents per mile; that column Two represents the amount that was paid to plaintiff by Nacogdoches County each month; that column Three represents the difference between the amount that was actually incurred by the Plaintiff at four cents per mile and the amount paid by the Commissioners’ Court.
“That the Plaintiff, H. M. Cook, accepted a voucher for the sum of $50.00 each month, and cashed the same without any qualifications, being indorsed thereon, but that the said H. M. Cook did notify the County Clerk of Nacogdoches County, Texas that he was accepting it only as part payment of his car expense; that on February 13, 1939, the plaintiff, H. M. Cook presented to the Commissioners’ Court of Nacogdoches County, Texas his claim for the sum of $733.68, representing the difference between his car expense at four cents per mile, and the amount paid him by the Commissioners’ Court over the entire period of 1937 and 1938, and that said claim was by the Commissioners’ Court rejected.
“Under and by virtue of agreement with said Court, the Commissioners’ Court on each month during the year 1937 and 1938, was presented with a claim by the plaintiff, H. M. Cook, for $40.00 per month for feeding the prisoners; that on each month the said Commissioners’ Court allowed said' claim, and paid the said H. M. Cook the sum of $40.00 per month during the years 1937 and 1938, and for the first eight months in 1939, aggregating the sum of $1,280.00 that has been paid by the Commissioners’ Court to the. plaintiff for feeding the prisoners up to the day answer was filed by the Commissioners’ Court in this suit; that Nacogdoches County has a population of 30,190 inhabitants, and has had such population at all times germane to the questions involved in this law suit, and had so many inhabitants at the last preceding Federal Census; that said $40.00 per month paid the said H. M. Cook by the Commissioners’ Court was in addition to his annual salary that was paid in twelve monthly installments as the law directs.
“That the office of C. E. Weaver, acting auditor, was closed from January 1, 1938 to February 16, 1938; that the blanks upon which the officers are required to make their Annual Reports were in said office during this time; that said office is located in the Courthouse; that J. Far-ris Jinkins, District Clerk during said time, secured a blank and filed his Annual Report before February 1, 1939; that Henry M. Cook did not have a key to said office.”

The trial court entered judgment denying plaintiff any recovery and also denied the defendant any recovery on its cross-action.

Appellee moves to strike appellant’s brief on the ground that the assignments of error and propositions constitute mere legal abstractions. We do not determine the abstract merits of the motion for the reason that the parties in their briefs made a clear statement of the nature and result of the suit together with the controlling facts which are reflected by an agreed statement. The briefs reveal the matters at issue and require us to search the record for fundamental error “apparent upon the face of the record.” Harlington Land & Water Co. v. Houston Motor Car Co., Tex.Com.App., 209 S.W. 145, Southwestern Settlement & Development Co. v. Village Mills Co., Tex.Civ.App., 230 S.W. 869; Republic Ins. Co. v. Dickson, Tex.Civ.App., 87 S.W.2d 899.

We will consider, first appellant’s contention that the trial court erred in denying recovery for unpaid balance of expenses incurred by him in the operation of his automobiles. Vernon’s Ann.Civ.St. Art. 3899, Sec. (b), provides that where the sheriff or his deputies operates his own automobile or automobiles he “shall be allowed four (4‡) cents for each mile traveled in the discharge of official business, which sum shall cover all expenses of the maintenance, depreciation and operation of such automobile.” By virtue of this provision of the statute, the appellant on the agreed facts, as we construe them, was entitled to recover the sum sued for. This item was in no sense salary.

As against this conclusion the appellee urges that the plaintiff failed to prove that he filed the sworn report with the Commissioners’ Court and made no showing that his account was presented to the County Auditor and the Commissioners’ Court each month for audit and allowance as provided by the statute. Id. The contention is overruled. The agreed statement shows that the amount sued for represented the difference between “his car expense at four cents per mile and the amount paid him by the Commissioners’ Court” and that “said claim was-by the Commissioners’ Court rejected.” Thus every essential fact necessary to show that the claim was legally due and unpaid and that the Commissioners’ Court' had refused to pay it were established. Requirements of the statute were substantially met. Farmers State Bank v. Bowie County, 127 Tex. 641, 95 S.W.2d 1304; Nacogdoches County v. Jinkins, Tex.Civ.App., 140 S.W.2d 901.

We come now to appellee’s cross-action wherein it sought to recover $1,280 alleged to have been illegally paid tó plaintiff for feeding prisoners. As shown by the agreed statement quoted above, the Commissioners’ Court approved and allowed the claim of the sheriff in the amount of $40 per month for thirty-two months for feeding prisoners. It is also shown that the sheriff was paid the full salary allowed him by the Salary Law, Vernon’s Ann.Civ.St. Art. 3912e. By Section 3 of said article it is provided that the salary allowed officers is “in lieu of all other fees, commissions or compensation which they would otherwise be authorized to retain.” 'The appellee therefore contends that the $40 per-' month was illegally paid to the appellant as “fees of office.” Article 1040, Code of Criminal Procedure, Section 2 provides that the sheriff shall be allowed “for support and maintenance, for each prisoner for each day such an amount as may be fixed by the commissioners court, provided the same. shall be reasonably sufficient for such purpose, and in no event shall it be less than forty cents per day nor more than seventy-five cents per day for each prisoner. The net profits shall constitute fees of office and shall be accounted for by the sheriff in his annual report as other fees now provided by law.” (Italics ours.) In the case before us there is no showing as to the number of prisoners fed by the sheriff, and hence it is not shown that the $40 per month allowed the plaintiff by Nacog-doches County was in excess of the amount permitted by statute. It follows that the amount collected by appellant for feeding prisoners was not illegally paid to him by the Commissioners’ Court

But appellee makes the contention that the $1,280 collected by appellant for feeding prisoners represented “fees of office” for which he was required to account and that since the salary which he received was in lieu of all fees, the sum was illegally paid to him. Under the statute above quoted only “the net profits” constitute fees of office to be accounted for as such. There is no showing that the plaintiff made any profits on the feeding of the prisoners at $40 per month. And hence there was no showing that he collected from the Court any sum in excess of the salary to which he was entitled under the law.

Were the appellant here suing for amounts due him for feeding the prisoners we would have a different question. But it should be borne in mind that we are now considering a cross-action of the appellee wherein it seeks to recover back sums alleged to have been illegally-paid to the plaintiff. Such being the case, the burden was upon it to plead and prove that the amounts sought to be recovered were illegally paid. We cannot presume that the Commissioners’ Court did not act in accordance with the law. By its judgments it approved and paid the claims of the sheriff for the feeding of the prisoners. And since it acted within the general-scope of its authority, its judgment so pronounced is no more subject to collateral attack than would be the judgment of any other court.

We also overrule appellee’s contention that it was entitled to recover the penalty sued for. There was no showing of any willful intent to violate the penal statute in question. Nacogdoches County v. Winder, Tex.Civ.App., 140 S.W.2d 972.

In so far as the judgment of the trial court denied to appellant recovery of balance due him for expenses of operating his automobiles in the sum of $733.68, the judgment is reversed and here rendered in favor of appellant. That part of the judgment which denied appellee recovery against appellant on its cross-action is affirmed.

Judgment in part affirmed and in part reversed and rendered.