text:
    BATEN v. MERCER.
    No. 3818.
    Court of Civil Appeals of Texas. Beaumont.
    March 13, 1941.
    Rehearing Denied March 26, 1941.
    Gordon D. Baten, of Beaumont, for appellant.
    C. A. Miles, Jr., of Liberty, for appellee.
   WALKER, Chief Justice.

On the 6th day of October, 1938, Mrs. Clara G. Baten, administratrix of the estate of Thomas J. Baten, deceased, hereinafter referred to in her representative capacity as appellant, duly “allowed” the following claim filed with her by appellee, W. R. Mercer, against thé Baten estate: “Now comes W. R. Mercer and presents his claim against the Estate of Thomas J. Baten, deceased, and says that such Estate is legally due him the sum of $2000.00, with interest thereon from March 11th, 1938,.at the rate of 7% interest. That said indebtedness was evidenced by one Deed of Trust note for $2000.00, executed by the deceased, Thomas J. Baten, together with a Deed of Trust Lien executed and delivered to W. R. Mercer, on the 11th day of March,’1936, which said Deed of Trust is duly recorded in Vol. 38, page 555, Deed of Trust Records of Liberty County, Texas.”

This claim, as filed by appellee and allowed by appellant, was duly approved by the county judge of Jefferson county as a third class claim.

On the 20th day of March, 1940, appellant, under authority of the County Court of Jefferson County (Articles 3554-3556, Vernon’s Texas Civil Statutes), executed and conveyed to the Gulf Oil Corporation, on a, cash consideration of $12,970, a mineral lease on the land belonging to the Baten estate against which appellee held his ’deed of trust lien, securing the payment of his promissory note, all as set out in his claim filed with and allowed by appellant, and approved by the county judge. On June 10, 1940, appellee filed his petition in the County Court of Jefferson county, praying that appellant be ordered to pay “immediately” the amount of his claim from the proceeds of the sale of the lease. In County Court, judgment was entered granting appellee the relief prayed for, and on appellant’s appeal to the district court, on trial to the court without a jury, he was again granted the relief' prayed for. Appellant has duly perfected her appeal to this court.

The sale of the lease was not made “for the satisfaction” of appellee’s deed of trust lien. The order of the ?ourt directing the sale of the lease is not in the record, and there is nothing in the statement of facts suggesting that appellant sold the lease free and clear of appellee’s claim. There is no recitation in the court’s judgment, nor in the conclusions of fact and law, that the sale of the lease was made free and clear of appellee’s claim, nor did the court find facts in any way limiting or impairing appellee’s claim against the land, as it existed at the time he filed his claim with appellant. At the time appellee filed his petition herein, all first class claims against the Baten estate had been paid. There was in appellant’s hands proceeds from the sale of the lease, sufficient to pay all second class claims against the estate and also appellee’s claim in full. However, appellant did not have in her hands sufficient money to pay all the third class claims against the , estate. For appellee to have a claim against the proceeds of the sale of the property, such sale must have been made “for the satisfaction” of appellee’s claim, within the provisions of Article 3536, Vernon’s Tex. Civ.St., and free of appellee’s claim. Since the sale of the lease by appellant to Gulf Oil Corporation was not made “for the satisfaction” of appellee’s claim, nor free and clear of appellee’s lien against the land, but, on the record before us, subject to appellee’s lien, it necessarily follows that the sale of the lease in no way impaired ap-pellee’s security. So, it necessarily- follows that appellee, on the record before us, had no claim against the fund received by appellant from the sale of the lease.

The value of the land covered by appellee’s lien, in excess of his claim, belonged to the general fund of the estate. Appellee has cited us to no statute denying appellant the right to sell the lease, subject to appellee’s lien; Nutt v. Anderson, Tex.Civ.App., 87 S.W.2d 760, as we construe it,gave appellant that right.

The judgment of the lower court must be reversed. Since we cannot say, on the record before us, that appellee fully developed his case on the issues discussed, the cause is remanded to the district for a new trial. Gulf, C. & S. F. Ry. Co. v. Blannie Snow, Tex.Civ.App., 146 S.W.2d 1040, and authorities therein cited.

Reversed and remanded.

On Rehearing.

The following proposition advanced by appellee on rehearing is not a correct construction of our opinion: “If the lien of a secured creditor can be defeated by the Administrator of an estate and the Probate Court by a sale of the mortgaged property, as was done in this case, * *

Our holding in the original opinion on this point is “that the sale of the lease in no way impaired appellee’s security.” Appellee correctly asserts: “There are no Probate Statutes giving the Probate Court or an Administrator authority to defeat duly filed secured claims by selling the security ‘free and clear of all liens’, or ‘subject to all liens and encumbrances’.” The answer to this contention is the simple fact that the sale made by the adminis-tratrix of the lease on the property in issue did not defeat appellee’s secured claim; his security is at this time unimpaired by any of the proceedings reflected by this appeal.

The motion for rehearing is overruled, as is also the motion for oral argument.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    MENCZER v. FORT WORTH NAT. BANK.
    No. 14188.
    Court of Civil Appeals of Texas. Fort Worth.
    March 7, 1941.
    M. Kleberg, of Fort Worth, for appellant.
    Geo. C. Kemble, of Fort Worth, for appellee.
   BROWN, Justice.

Appellee, the Fort Worth National Bank, brought suit as trustee of the estate of M. R. Sanguinet, deceased, against appellant, S. A. Menczer, on a promissory note in the principal sum of $4,000, executed by appellant and made payable to-the order of M. R. Sanguinet.

The petition discloses that the plaintiff below sues in its representative capacity, for the use and benefit of the estate for which it is acting as Trustee; that San-guinet is dead; that he died testate; that his will was duly probated and that petitioner was nominated as Trustee of the deceased’s estate in the will; that after petitioner became such trustee, Menczer entered into an extension agreement with it, whereby the maturity date of the note was changed to April 10, 1938; that Menczer “has defaulted in the payment of said note, and has wholly failed and refused to pay' the same or any interest thereon”; and prayed for principal, interest and attorney’s fees.

Appellant answered by a general demurrer, general denial, and that the cause of action had “been adjusted and settled”.

The cause was tried to a jury, and the trial court peremptorily instructed the jury to return a verdict for the plaintiff.

Defendant, Menczer, has appealed, and the eight assignments of error found in his brief are all bottomed upon the 'failure of the trial court to sustain his general demurrer.

The right of the plaintiff to sue as trustee of the estate of deceased cannot be successfully raised by a general demurrer, but must be raised, if at all, by a plea in abatement. Vol. 1, Tex.Jur., Sect. 96, page 132; Young et al. v. Meredith, 38 Tex.Civ.App. 59, 85 S.W. 32, writ refused; Callahan v. Hendrix, 79 Tex. 494, 15 S.W. 593; Vol. 14, Tex.Jur., Sect. 527, page 310; Henry v. Rust, Tex.Civ.App., 85 S.W.2d 1084, writ dismissed.

There is no merit in the contention that the petition does not show ownership of the note sued upon. The petition as against the general demurrer is good. Citizens’ National Bank of Waco v. Billingsley et al., Tex.Civ.App., 300 S.W. 648, writ refused; Malone v. Craig, 22 Tex. 609.

There is no merit in the contention that the petition does not allege non-performance and a demand for payment.

In the first place, we believe that the averments in the petition are quite sufficient.

There is no statement of facts before us and the petition shows that the suit was brought after the note became due and payable, and the petition specifically alleges that the note “provided for the waiver of presentment for payment, notice of non-payment, protest and notice thereof”.

The appellant knew when his note was due and payable and his contract of extension of time of payment, made for his benefit, stipulates the date on which it matured, and he expressly waived the presentment of the note for payment.

’ We find no error and the judgment is affirmed.


author: PRICE, Chief Justice.

text:
    GINN et al. v. SOUTHWEST BITULITHIC CO.
    No. 4012.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 28, 1940.
    Rehearing Denied March 20, 1941.
    Seabury, Taylor & Wagner, of Brownsville (Volney Taylor, Jr., and F. B. Wagner, both of Brownsville, of Counsel), for plaintiffs in error.
    West & Hightower, of Brownsville, for defendant in error.
   PRICE, Chief Justice.

This is an appeal by writ of error from a judgment of the District Court of Cameron County. The judgment established in favor of defendant in error, against plaintiffs in error and the other defendants, an indebtedness of $806.89, and foreclosed a lien therefor on Block 79 of Paredes Addition to the City of Brownsville, except Lot 14 thereof.

Plaintiffs in error perfecting this appeal are Agnes Atelia Ginn, joined by her husband, Robert Ginn, Frances Verien Browne, Stephen Browne and wife, as next friends of Mary Hilma Browne, a minor, aijd G. R. Smith and wife, as next ■friends for James Joseph Smith, a minor. The sureties on the writ of error bond are Irene B. Mason, O. K. Mason, and S. P. Browne. Irene B. Mason was a'co-defendant with plaintiffs in error individually, as trustee and as independent executrix of the estate of Agnes A. .Browne, deceased. O. K. Mason was likewise a co-defendant in the case; S. P. Browne was a co-defendant in his capacity as trustee for Gregg Properties, Inc. The bond was made payable to the three above named sureties, as well as all other defendants, and to the defendant in error.

Defendant in error in its brief urges that the appeal be dismissed on account of defective bond. This motion is not timely. In bur opinion any defects im the bond have been waived by failure to make timely objection thereto.

The sureties have no judgment against plaintiffs in error and plaintiffs in error have no judgment against them.

The bond is, we think, highly irregular, but sufficient to confer jurisdiction.

In substance, the judgment is assailed for lack of personal jurisdiction over the plaintiffs in error. The case was tried on a first amended original petition filed December 8, 1933, recited it was in lieu of the original petition filed October ,5,- 1933. This original petition does not appear in the transcript. In the amended petition it appears that defendants Agnes Teresa Smith, James Joseph Smith, Agnes Atelia Browne, Frances Verien Browne, Mary Hilma Browne, and James Andrew Browne, were minors.

On December 9, 1932, citation issued for Agnes. Teresa Smith and James Joseph Smith, citing them to answer the amended petition. This citation is returned as not executed as to James Joseph Smith.

Citation issued for James Joseph Smith to Cameron County on December 26, 1933, and was duly filed December 28, 1933; the return shows service on December 27, 1933. The body of the citation cites him to appear and answer plaintiff’s petition filed on October S, 1933. The filing of the amended petition is not mentioned in the citation.

The record fails to show any process of any nature was served on plaintiffs in error other than James Joseph Smith. They were parties defendant and minors and a judgment was entered against them condemning any interest they might have in the property involved to the satisfaction of defendant in error’s alleged debt.

It is clear that where a judgment is directly assailed the record must show jurisdiction over the person of the attacking defendant in order to withstand the assault. Recitals in the judgment cannot supply this necessity of a showing of personal jurisdiction. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934; Castleberry v. Castleberry, 134 Tex. 409, 135 S.W.2d 701, and cases cited.

The court appointed a guardian ad litem to represent these plaintiffs in error. In the absence of jurisdiction over them there was no power to take this action. 23 Tex.Jur. p. 771, Sec. 73; Wheeler v. Ahrenbeak, 54 Tex. 535; Kremer v. Haynie, 67 Tex. 450, 3 S.W. 676; Morris v. Drescher, Tex.Civ.App., 123 S.W.2d 958; Wright v. Jones, Tex.Com.App., 52 S.W.2d 247.

It is clear that the judgment against the uncited plaintiffs in error must be set aside.

A somewhat different situation is presented as to plaintiff in error James Joseph Smith. Citation was served upon him, and the question as to its sufficiency to give jurisdiction over him is involved. As has been stated, he was cited to answer a petition filed on October 5, 1933. At the time of the issuance and service of the citation this petition had been superseded by an amended petition filed December 8, 1933. See Rule 14, District and County Courts. The original petition is not in the record. The similarity of its allegations to those of the amended petition do not appear. The judgment against him was on the amended petition. The date of the filing thereof is not shown by the citation. Article 2022, R.S.1925. In our opinion, jurisdiction over his person is not shown by the transcript, and he is entitled to have the judgment against him reversed.

Defendant in error urges that plaintiffs in error were not necessary parties to the suit. In order to consider this it will be necessary to make a brief statement of the pleadings and as to the judgment rendered.

Defendant in error sought recovery on a special paving assessment certificate issued to it by the City of Brownsville, purporting to be a lien on the property here involved, same being alleged to be due and payable by Irene B. Mason, Irene B. Mason, trustee, S. P. Browne, J. A. Browne and Mary Browne Smith; further, the foreclosure of a mechanic’s lien contract on the property given by Irene B. Mason, as executrix of the estate of Agnes A. Browne, deceased, as cumulative security of the payment of the liability for the paving. It is alleged that defendants, and each of them, respectively, claim some right in or title to a lien upon the property, but that such right is subordinate to its lien.

Defendant S. P. Browne filed answer. Defendants Fernandez, as trustee, Barreda, and Jessup, as independent executor, all filed disclaimers. The minor defendants, through guardian ad litem, filed answer. The other defendants did not answer. Defendant S. P. Browne did not present any' defense at the trial.

Judgment gave foreclosure against all defendants. The personal liability of the defendant sought to be so held was not disposed of by the judgments, further than it was provided that, even if the property when sold should not bring enough to satisfy the claim, the officers should return the order of sale as fully satisfied. All costs were adjudged against the proceeds of the property, including a fee of twenty-five dollars in favor of the guardian ad litem.

The statement of facts consists entirely of documentary evidence, save for the testimony of the Honorable R. A. High-tower, attorney for the plaintiff in the cause and attorney for defendant in error here. Mr. Hightower testified in substance that nobody had any interest in the property save his client; that the ownership to the fee title to the property was in the Browne heirs and Rentfro & Cole, and Mr. Cole represented those of the heirs who assert or show any interest in the property — that an understanding had been reached with him.

In considering this appeal it must be borne in mind that the only issue is as to Ihe power of the trial court to enter the judgment. Plaintiffs in error are not seeking equitable relief as to the awarding of which the court may attach equitable conditions or be governed by equitable considerations. If there was no power to enter the judgment as to them, they are entitled to have the judgment reversed. It is true that Mr. Hightower testified they had no interest in the property. Plaintiffs in error being without legal notice of the pendency of suit, had no opportunity to-contest this. The documentary evidence fails to throw any light as to the character of the interests of plaintiffs in error in the property; it fails to indicate in any conclusive way who owns the property. It is insisted that information as to these matters may be gathered from a perusal of the report of the case of Gregg v. First National Bank, Tex.Com.App., 26 S.W.2d 179, 181, in the Court of Civil Appeals, First Nat. Bank v. Browne, 18 S.W.2d 772. We quote from the report of the case in the Supreme Court: “At the time of the execution sale under which John Gregg acquired title to the interest devised to James A. Browne, all of the debts of the estate had been paid and nothing remained to be done by the executrix except to divide the estate into five equal portions and convey four of the same to the children mentioned in the second paragraph of the will; * ⅜ *»

The report of the opinion shows that the sale was on execution issuing1 June 11, 1928. Referring to the opinion of the Court of Civil Appeals, it appears that the sale was held on July 3, 1928. If on July 3, 1928, the estate was ready for distribution, some suspicion is cast on a mortgage given by the executrix on June 13th of the same year. We do not think this statement in the opinion is binding on defendant in error. By the same token, we do not think we may supply other facts therefrom not appearing in the record here. We are not unmindful of the fact that in the establishment of a secured claim against an estate the independent executor is perhaps ordinarily the only necessary party, and that the heirs are not such. In this proceeding, however, there are two sources of the lien asserted, the assessment lien and the contract lien. The judgment seems to foreclose both. Under the foreclosure of the assessment lien we think the plaintiffs in error were necessary parties, or at- least the record does not show they were not such.

The case of Lewright v. Reese, Tex.Civ.App., 223 S.W. 270, is cited as showing the lack of equity here. In that case equitable relief was sought; here, this is not the case.

In our opinion, justice would be best subserved by reversing and remanding the entire cause. It is so ordered.


text:
    LUCK v. RIGGS OPTICAL CO., Consolidated.
    No. 14175.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1941.
    Rehearing Denied April 4, 1941.
    McLean & Scott and Glover Johnson, all of Fort Worth, for appellant.
    Phillips, Trammell, Estes, Edwards & Orn and Edwin T. Phillips, Jr., all of Fort Worth, for appellee.
   BROWN, Justice.

Appellant, Dr. L. H. Luclc, was a customer of appellee, Riggs Optical Company, Consolidated, a corporation, and had purchased merchandise from such company over a period of years. One portion of the open account created between the parties shows items beginning with January, 1933, and running on and up to December 7th, 1934. These items aggregate $385.01, and appellant never paid same. They were incurred while appellant lived in Galveston, Texas. Having moved to Fort Worth, Texas," appellant purchased items aggregating $251.77. These last purchases are not in dispute, in this case. Appellee demanded payment and appellant, in reply, wrote the ■ following letter:

“April 7th, 1938
“Mr. Roy D. Wetmore, President,
“Riggs Optical Company,
“Chicago, Ill.
“Dear Sir:
“We ask that you kindly furnish us with an itemized statement of our February account and purchases made on order before the 17th day of March, 1938, which date we were cut off by your branch manager, Mr. Palmer, and not March 9th, 1938, as you stated.
“Our records show .that our February account totals $172.83, and the purchases made and on order up till the 17th day of March total $42.82, making a total of $215.65, for which amount we will send you a check on, when we receive a statement itemized, so that we can check our records.
“Will you .also please send us-an itemized statement of our Galveston account which has been carried separately from the time we bought thru your Galveston branch office. Our records do not show the total you billed on April 4th, 1938, of $390.74. Our records show $366.16.
“We cannot check our records which may be incorrect until we receive these accounts itemized separately as they have been carried.
“Thanking you for your kind and prompt attention I remain, Very Truly Yours,
“L. H. Luck.”

Appellant made' no payment whatever and appellee, in 1939, brought suit setting forth the new account in the sum of $251.-77, as Exhibit A, and the old, or “Galveston”, account in the sum of $385.01, as Exhibit B, and specially pleaded that appellant, by and through the above quoted letter of April 7th, 1938, and another letter (written by appellant’s wife), not necessary to quote here, had made “an unequivocal and unqualified acknowledgment to plaintiff of the existence of such debt or debts to the amount of $366.16”, and further pleaded, “that such written acknowledgment contained no expression or indication that defendant was unwilling to pay the debt so acknowledged.”

Appéllant denied generally and pleaded the two year statute of limitations to the old, or “Galveston”, account.

The cause was tried to a jury and all issues submitted in connection with letters purported to have been written by, or for, Dr. Luck, and the authority of Dr. Luck’s wife to write the same, were answered against the plaintiff’s contentions.

It was admitted that Dr. Luck wrote the letter of date April 7th, 1938.

On motion of plaintiff for judgment notwithstanding the verdict, the court first rendered judgment for plaintiff for the $251.77 (which was not contested), “with legal interest thereon from due date”, and “judgment non obstante veredicto, in the further sum of $366.16, together with legal interest thereon from due date.” This judgment is dated March 29th, 1940.

After the term of court at which this judgment was rendered, the plaintiff made a motion to amend the judgment and to enter judgment nunc pro tunc, properly showing the dates from which interest is made to run, the motion being filed April 24th, 1940, and notice thereof was given the defendant by registered mail.

On May 10th, 1940, the trial court sustained the motion to correct and amend the judgment and the trial court rendered judgment for plaintiff for $251.77, with 6% interest from January 1st, 1939, and for $366.16, with legal (or 6%) interest from January 1st, 1935.

From the amended judgment the appeal is taken by Dr. Luck.

It is first contended that the amendment called for a judicial act and not a mere clerical correction. We do not believe the contention is well taken.

The statute which empowers the trial court to correct its judgments, Art. 2229, Vernon’s T.C.S., specifically refers to “any omission or mistake, miscalculation or mis-recital of a sum or sums of money”, and the judgment before us which was amended awarded the plaintiff a certain sum, “together with legal interest thereon from due date”, and another certain sum, with the same words as to interest.

We believe that, under the statute, .above quoted from, the trial court had the power to correct the judgment, so as to-show what rate of interest was intended and the dates that the trial court had in mind as the “due dates”.

We do not believe that we are in conflict with such cases as Arrington et al. v. McDaniel et al., 119 Tex. 148, 25 S.W.2d 295 (Com. of App’ls. adopted by the Sup. Crt).

The next contention is that the hearing on the motion to amend was had without proper and legal notice.

The statúte (Art. 2229, Vernon’s T.C.S.) provides for “reasonable notice”.

We believe that the notice given by registered mail, received a reasonable time before the hearing of the motion, which hearing was attended by- the defendant, who then and there made due objection and a formal protest, constituted such a notice as is contemplated by the statute.

On the question of limitations, we do not believe th^t the letter relied upon to take the “old, or Galveston account” out of the statute of limitations (Art. 5526, Vernon’s T.C.S.) is such that it meets the requirements oí Article 5539 (Vern'on’s T.C.S.), as laid down by the authorities.

In connection with the barred account, the debtor used this language: “Will you also please send us an itemized statement of our Galveston account which has been carried separately from the time we bought thru your Galveston branch office. Our records do not show the total you billed on April 4th, 1938, of $390.74. Our records show $366.16.

“We cannot check our records which may be incorrect until we receive these accounts itemized separately as they have been carried.”

If it can be said that this letter constitutes an acknowledgment of the justness of the account to the extent of $366.16, we are unable to find where there is expressed a willingness to pay it.

In Krueger v. Krueger, 76 Tex. 178, 12 S.W. 1004, 1005, 7 L.R.A. 72, the Texas rule is stated: “That the acknowledgment, to relieve the claim from the operation of the statute of limitations, must contain an unqualified admission of a just, subsisting indebtedness, and express a willingness to pay it.”

The authorities on the question before us are well reviewed by Mr. Justice Gris-som, speaking for the Eastland Court of Civil Appeals, in Poe v. Poe, 118 S.W.2d 831, writ refused.

Furthermore, we find the following pronouncement in the Krueger case, supra:“If the expression of a willingness to pay is coupled with conditions, it devolves upon the plaintiff to prove that the named. conditions have taken place.”

There is no expression of a willingness, to pay the debt in the letter before us, and. such a willingness must be implied, if it. is to be read into the letter. Elsby v. Luna, Tex.Com.App., 15 S.W.2d 604.

We do not find that the willingness, to pay is implied, but if it is admitted that the implication is there, for sake of further-discussion, then we find that there is a controversy over the items charged and the-aggregate amount “as billed” by the creditor, and no admission of the correctness-of even the debtor’s records.

If there is an implied promise to pay any specific amount, then there is a condition imposed: namely, that the creditor-send the debtor an itemized statement, to, the end that the debtor may check the account and ascertain the correct amount. The fact remains that when the creditor brought suit, he did not sue for either of' the amounts the debtor claims the creditor-demanded.

The plaintiff below did not plead that-the condition was met, or, as the Supreme-Court has said, has taken place.

The Krueger case has been consistently-followed by the Supreme Court and the-intermediate Appellate Courts.

We are of opinion, and so hold,, that the trial court erred in rendering judgment for appellee on the “old, or Galveston account”, in the sum of $366.16. If we should be mistaken in so holding, Ve-are further of the opinion that, even though the trial court be warranted in rendering judgment on the “old account’” because of the letter pleaded and in evidence,, nevertheless such court had no authority to give judgment for interest upon the. “old account”, computed as is required for-open accounts. The cause of action must, rest upon the new promise to pay, and interest should have been computed from, such date.

The letter, if sufficient to toll the statute,, transformed the debt from an open account into a promise in writing to pay and would, be effectual to preserve the debt for four-years from the date of the letter. If this. "be true, it only seems just to us that such ■a revived debt bear interest from the date of its revival.

What we have just said is not necessary to a disposition of this cause, but we felt constrained to say it, in the event it -should be held that the letter relied upon revived the barred debt.

The judgment, insofar as it awards a recovery for appellee in the sum of $270.--47, is by us -undisturbed, but the judgment insofar as it awards a recovery for appel-lee in the further sum of $481.26, is reversed and judgment is here rendered that appellee take nothing as against appellant by reason of such items and account.


author: MURRAY, Justice.

text:
    LANDIS MACH. CO. v. TULL.
    No. 10917.
    Court of Civil Appeals of Texas. San Antonio.
    March 5, 1941.
    Rehearing Denied April 2, 1941,
    Percy C. Fewell, of Dallas, for appellant.
    Lloyd & Lloyd and Paul Worden, all of Alice, for appellee.
   MURRAY, Justice.

This suit was instituted by N. E. Tull, in the District Court of Duval County, against Landis Machine Company, seeking to recover damages alleged to have been sustained by him as the result of a certain Landis Stitcher Machine, which he had contracted to purchase from the company, not being as represented to him by the agent of the company. He alleged that the company represented to him, through its agent, that the stitching machine “would give good and dependable service to the satisfaction of the plaintiff, that it would sew without breaking thread, and that -it would perform in a satisfactory and workmanlike manner all reasonable manner of shoe repair stitching incident to the character of work done by the plaintiff in his business of repairing shoes.” Plaintiff alleged that he relied upon such warranties, as the company intended he should, and was thereby induced to enter into the purchase contract for the machine, for a total consideration of more than $600. Plaintiff signed a number of notes covering the agreed purchase price.He further alleges there is outstanding and unpaid the total principal sum of $440 of this indebtedness.

Plaintiff asked that the sales contract be cancelled, that the outstanding notes be likewise cancelled, and that he have judgment for his damages in the sum of $1'500. The defendant answered by a general demurrer and general denial.

The cause was submitted to a jury who made the following findings :

1. The machine was sold by the company and purchased by Tull as a result of representations made by the salesman, Glower.
2. The agent, Glower, represented to Tull (a) the machine would sew without breaking thread; (b) the machine would perform in a satisfactory and workmanlike manner all repair stitching incident to Tull’s work; (c) the machine would give good and dependable service.
3. Such representations were false.
4. Tull believed such representations to be true.
5. Tull would not have purchased the machine but for such representations.
6. Tull was damaged in the sum of $1,-500.

Tull was given judgment against the company in the sum of $1,500, from which judgment the Landis Machine Company has prosecuted this appeal.

Appellant first contends that the evidence was insufficient to show that Glower was its agent at the time the fraudulent representations were alleged to have been made. The only evidence of Glower’s agency was the testimony of appellee.

Appellee testified, in substance, that he had been engaged in the shoe repair business in the town of' Freer, Duval County, Texas, for about four years. He had been in the business of making boots and repairing shoes for some fifteen years. He had a transaction with the Landis Machine Company, or with a Mr. Glower. “When Mr. Glower came along, I had been, wanting to buy a Landis Machine; and he came along, he was bringing me supplies at that time; and along about that time there was something said about a machine, and I was thinking about getting one of these little— I do not know the name; I do not recall what the name of it is — anyway, you turn it by hand and it did riot cost but about One Hundred and Seventy-five ($175.00) Dollars. At that time I wasn’t just so I could buy a larger machine but I would like to be so I could, so Mr. Glower said he would get me fixed up on this machine; and we got together on it and he went ahead and got my order in; the next thing I knew I had a letter from the Landis Machine Company saying that the machine would be there. Mr. Glower, of course, understood the machine; Mr. Glower understood that the machine, of course, was a new machine to me, I had not operated one with a curved needle but .1 had operated one with a straight needle.”

On cross-examination appellee testified as follows:

“Q. You said something about Mr. Glower? A. Yes.
“Q. Mr. S. H. Glower was the agent for some other shoe supply house; he never worked — that is, Mr. Glower never worked for the Landis Machine Company? A. Absolutely not—
“Q. (Interrupting) In other words, you know that Mr. Glower— A. (Interrupting) Wait a minute now; let’s get straight on this; I do not know whether he was working for the Landis Machine Company or not but he has taken my order and sent it in.
“Q. Answer my question and don’t ask me questions— A. (Witness interrupting and continuing to talk) He taken my order and sent it in and I don’t know whether you would call that working for the Landis Machine Company or not. Do you say he was working for the Landis Machine Company or not ?
“Q. Well, I just want you to answer my question and don’t ask me questions. * * *
“Q. Mr. Glower was working for the Frank-Strauss Company? A. S. H.,Glower was working for the Franki-Strauss Company.
“Q. He was selling you shoe supplies? A. He was selling me supplies.
“Q. Did he or did he not tell you about a stitching machine, that he could tell you where you could get one, if you wanted it? A. That has been the understanding ever since I got the machine; S. H. Glower taken the order for it and sent it in.
“Q. Mr. Fewell came down and made arrangements to sell you the machine, did he not? A. This Mr. Fewell here?
“Q. Yes. A. No.
“Q. tie never came down to see you at all? A. He just came down and installed the machine.
“Q. Mr. Fewell just came down and installed the machine? A. That is correct.”

This is all the testimony as to Glower being the agent of Landis Machine Company. This evidence is absolutely insufficient to support a finding that Glower was the agent of appellant at the time he made the representations about the stitching machine to appellee.

Appellee contends that, inasmuch as the question of agency was not submitted to the jury and no request made to have such question submitted and no exception taken to the failure to submit such a question, the same was waived and that no recovery can be had upon the theory that Glower was the agent of appellant, and cites, as support of this contention, Williamson v. Patterson, Tex.Civ.App., 106 S.W.2d 753. We are inclined to the holding that since the case of Wichita Falls & Oklahoma Railway Company v. Pepper, 134 Tex. 360, 135 S.W.2d 79, by the Supreme Court, in view of the other issues submitted to the jury, the question of agency would be such an issue as might be presumed to have been found by the court in support of the judgment entered, if the evidence was sufficient to support such a finding.

However, as we have determined that the evidence is insufficient to' support a finding, either by the jury or the court, it is not necessary to determine the above matter.

There are other questions raised relating to the measure of damages and the sufficiency of the evidence to support the damages recovered, but in view of the fact that this cause must be reversed and remanded for a new trial we pretermit a discussion of the measure of damages or the sufficiency of the evidence to support the amount of damages recovered.

The judgment will be reversed and, in view of the fact that no motion for an instructed verdict was made in the trial court and the case not having been fully developed, the cause will be remanded for a new trial.

Reversed and remanded.


author: COMBS, Justice.

text:
    SHEPPARD et al. v. COALE.
    No. 3748.
    Court of Civil Appeals of Texas. Beaumont.
    March 21, 1941.
    Rehearing Denied April 2, 1941.
    D. E. O’Fiel, of Beaumont, for plaintiffs in error.
    K. W. Stephenson and D. C. Bland, both of Orange, for defendant in error.
   COMBS, Justice.

This appeal is by writ of error.

The transcript was filed in this court too late. Petition for writ of efror was filed December 21, 1939, writ of error bond was filed December 22, 1939, and citation was served December 26, 1939. Transcript was filed in this court May 23, 1940.

The statute requires transcript to be filed with the clerk of the Court of Civil-Appeals within sixty days from service of writ of error. Vernon’s Ann.Civ.St. Art. 1839.

The motion of defendant in error to dismiss the appeal is granted. Taylor v. Callahan, Tex.Civ.App., 122 S.W.2d 652.

Appeal dismissed.


author: SPEER, Justice.

text:
    EMPLOYERS’ LIABILITY ASSUR. CORPORATION, Ltd., v. KOLP.
    No. 14178.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1941.
    Rehearing Denied April 4, 1941.

      W. B. Handley, of Dallas, for appellant.
    Kilgore & Rogers and Ray Bland, all of Wichita Falls, for appellee.
   SPEER, Justice.

C. F. Kolp sued the Employers’ Liability Assurance Corporation, Limited, Clois L. Edwards and L. C. Grisham, to recover an alleged shortage in funds entrusted to the two last named parties and another employee; James A. King, the latter alleged to be insolvent and beyond the jurisdiction of the court.

Kolp was engaged in several lines of business in Wichita County during the period of time covered in this controversy. Among these lines were a cafe and a filling station, at which he conducted a retail and wholesale business dealing in gasoline and other oil products, the proceeds from each being kept separately. He also dealt in oil and gas leases and residential rental properties. The investments in, and the income from, each of these enterprises went through the hands of and were supposed to be reflected by one set of books kept by James A. 'King. Pie was authorized to receive all funds, make deposits, issue checks and generally to handle all matters applicable to the several lines of business. As such employee, King was responsible to Kolp for the faithful performance of all said duties.

Other persons were employed by Kolp to perform certain duties in connection with particular enterprises, but all moneys received, along with all books, accounts, reports and memoranda of business transactions were to be delivered to King. Edwards and Grisham were among those so employed by Kolp.

The defendant corporation guaranteed to Kolp the fidelity of King against any pecuniary loss which he should sustain from any act of fraud, dishonesty, forgery, theft, larceny, embezzlement, misappropriation, wrongful abstraction or willful misapplication of property by King.

Edwards and Grisham were sued jointly with the defendant corporation under allegations of acts of collusion between 'the three employees, King, Edwards and Gris-ham, to violate Kolp’s property rights.

All defendants pleaded the general issue and the corporation defendant prayed for judgment over against Edwards and Grisham for a sum equal to any amount it should be held liable for, growing out of acts of collusion between the three.

The case was tried to the court without a jury. Judgment was entered for Kolp against each Edwards and Grisham for specified amounts, from which no appeal was .taken, and we need give that matter no further attention. There was judgment for Kolp against defendant corporation for the principal sum of $2,-238.65, with interest thereon at six per cent per annum from January 1st, 1938. From this judgment the corporation has appealed. We shall refer to Kolp as plaintiff and to Employers’ Liability Assurance Corporation, Ltd., as defendant.

This appeal is based upon three assignments of error, substantially as follows: The judgment is contrary to the law and evidence and not supported by either, because (1) the evidence is insufficient to show that Kolp sustained any pecuniary loss, within the terms of the bond, during the period of time involved, (2) there is no evidence to support the finding that King wrongfully abstracted and willfully misappropriated the aggregate amount found by the court, and (3) there is no evidence to support the court’s finding that King wrongfully abstracted and willfully misappropriated the sum of $820.79 from the cash account of Kolp.

As disclosed by the assignments of error, the sufficiency of the evidence to support the judgment are the only points of attack and they may all be discussed together.

At the request of defendant, the trial court filed findings of fact and conclusions of law. It was found that defendant’s fidelity bond was in effect during the period involved in the suit. That the employee, James A. King, was one of those whose fidelity was guaranteed to plaintiff; that between May 5th, 1934, and October 31st, 1937, the said James A. King wrongfully abstracted and willfully misappropriated the sum of $2,238.65 belonging to plaintiff; that the several items consisted of shortage in cash, $820.79; shortage in Red Roof Cafe collections, $315; cash collected on wholesale and station accounts not accounted for, $919.88; Flint credit, $15; and merchandise purchased by King for his own use and charged to Kolp, $167.98. There were other findings concerning Edwards and Grisham, not necessary to relaté.

The evidence upon which the court made his findings consists in part of an audit of the combined businesses made by C. A. Crafton, a Certified Public Accountant. The audit report comprises about seventy-five pages of the 300 page statement of facts. The remainder of the volume reflects testimony of plaintiff, his employees (other than King) and of Mr. Crafton, the auditor. Even if we were able to analyze an auditor’s report, no useful purpose could be served in a case of this character, by a display of that ability. The most complicated phase of the testimony is involved in arriving at the $820.79 item mentioned first in the court’s findings. All shortages found by the court are challenged by defendant in its assignments of error, but this item is specially questioned in the third assignment. The auditor, in explaining how he arrived at the figure, took into consideration many of his complicated computations, disclosed by twenty or more pages of schedules and figures. It appears from the testimony that for several years the transactions between the retail and wholesale stations were kept on books that were concealed from the auditor during the time he was compiling audits for years prior to the one now before us. He testified that upon making the audit in controversy he procured those books and gave effect to them in connection with other receipts and disbursements. Pie said in this connection that the books of the “Station Accounts”, independent of all other items, showed receipts of $16,412.07, excepting an item of $4,254.57 cash received by the wholesale business from the retail station. The item represented inter-station transactions between the wholesale and retail stations; the latter would buy products from the former and would pay for them to the wholesale station; that the books were kept separately at that time; the amount last above mentioned was deposited as receipts by the retail station; when received by the wholesale station from retail station it was again shown to be for deposit by that department. The effect of the court’s findings on this point is that the item of $4,254.57, as shown by the auditor’s testimony and as reflected by the books as having been twice deposited to Kolp’s credit, should be deducted to make the books speak the truth. The evidence supports the court’s findings.

Defendant argues that by schedules of the audit copied in its brief, King had received from the several businesses the total sum of $32,487.97, for which he was responsible to Kolp; that from the same schedules he had accounted for $35,894.97, an overage of $3,407.49, and there was no evidence, therefore, to show that plaintiff had sustained any pecuniary loss. To grant that these figures are reflected by the copied schedules, we may not ignore many others which go into the minutest details of many other items,. ranging from $0.95 to over $4,000, affecting the whole audit period.

We have no means of knowing just how the trial court made the calculation to arrive at the amount of the shortage from the vast number of figures contained in the audit. We have taken the figures mentioned by defendant as the receipts by King and by adding thereto the amount claimed by plaintiff to have been shown by duplicate deposits, and adding the amount plaintiff had advanced for merchandise for which he received no credit, and adding the amount the court found King had charged plaintiff for merchandise, when it should have been charged to King, and deducting the aggregate from the' amount defendant claims King had accounted for, there would be a shortage of approximately $17 more than that found by the court. This more or less inaccurate calculation by us should not be taken, however, in preference to the lesser amount found by the trial court, when he had the assistance and oral explanations by the auditor of the complicated schedules.

The defendant offered no evidence other than that elicited on cross-examination from plaintiff and his witnesses. There is some evidence in the record of King having admitted a shortage in his accounts with plaintiff; the amount was not disclosed by plaintiff, but indicates that King did not know what amount he had misappropriated. In view of this and the auditor’s explanations of the accounts as reflected by his written report, we would be slow to accept defendant’s theory that there was no liability and no evidence to support the court’s findings of a shortage, because it could be demonstrated by parts of the audit that King had accounted for $3,407.49 more than he had received.

It is now a well settled rule of law in this State that when, as in this case, no jury is demanded, the findings of fact by the trial court in controverted issues have the same effect of a jury verdict when one is demanded. 3 Tex.Jur., page 1102, section 771. There are many decisions to the same effect, rendered since the text referred to was published.

It is equally well settled that when the jury or the court, in the absence of a jury, decides an issuable fact, and there is substantial evidence in the record to support the finding, the appellate court will not disturb it. Oats v. Dublin National Bank, 127 Tex. 2, 90 S.W.2d 824, and authorities there cited.

There is ample evidence in the record to support the court’s findings, and this meets each of the challenges presented in the assignments of error. The assignments must therefore be overruled and the judgment affirmed. It is our order that this be done.


author: WALTHALL, Justice.

text:
    PRATER v. COOK et al.
    No. 4025.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1941.
    McClellan Wassell, of Wink (A. T. Folsom, of Wink, of counsel), for appellant.
    H. L. Roberson and G. C. Olsen, both of Kermit, for appellees.
   WALTHALL, Justice.

This suit was brought to recover an alleged unpaid balance due on a note for $1,-000 made payable to appellant and signed by appellee A. A. Cook, with others. The case was tried to the court without a jury. All defendants other than A. A. Cook and Walton C. Creech were dismissed before judgment, and as to A. A. Cook judgment was rendered that appellant (plaintiff) take nothing by his suit. From that judgment appellant appeals.

A. A. Cook’s original answer to the suit was a general denial; his amended original answer consisted of special exceptions and general denial. The exceptions were overruled. On motion of appellant the court filed findings of fact and conclusions of law.

The court’s findings of fact state that the $1,000 note upon which the suit was brought had payments, with the amounts and dates thereof, endorsed on the back of the note, but the payments were not sufficient to discharge the note.

Appellee Cook was permitted, over objection, to show that the $1,000 note sued upon was given appellant for money to be used in a service station business; that thereafter some of the defendants here sold the service station business to parties not parties to this suit, who assumed to pay the unpaid balance of the $1,000 note. It was not alleged or proved that appellant agreed to release A. A. Cook from liability on the note, nor is it alleged that appellant agreed to or did accept the purchasers of the service station business or other security in lieu of the unpaid balance on the note; nor is it alleged that the purchasers of the service station business executed a new note to appellant for the unpaid balance on the note; nor is it alleged that the new note was paid in full to appellant in discharge of the note sued on.

The point made by appellant, evidenced by bills of exceptions, is that the court admitted evidence of payment of the $1,-000 note other than payments endorsed on the note; in the absence of any issue tendered or pleading of payment.

A. A. Cook tendered a plea of non est factum, but the court made no findingi on the plea.

Evidently, under Article 2014, of the Revised Civil Statutes, it was error to admit evidence of payment in the absence of any such issue tendered in the pleadings.

No order as to Walton C. Creech'is made in the judgment. It leaves the judgment doubtful as being final.

The case is reversed and remanded.


author: BAUGH, Justice.

text:
    GLECKLER v. DENTON et al.
    No. 8976.
    Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1941.
    Rehearing Denied March 19, 1941.
    Victor Gleckler, of Austin, for appellant.
    Patterson & Patterson and Hart & Brown, all of Austin, for appellees.
   BAUGH, Justice.

This suit presents a controversy between the owners of Lots 20 and 20½ in Enfield “A” in the City of Austin. The appellees acquired title to Lot 20½ in June, 1923, and appellant acquired title to Lot 20 in May, 1929. The two lots adjoined and had a common boundary. The sole question presented is whether appellees, who owned and resided upon Lot 20½, acquired title by limitation to a strip of land about two feet wide claimed by appellant to be a part of Lot 20 adjoining Lot 20½. The trial was to the court without a jury, judgment rendered for appellees, who were defendants below, from which Gleckler has appealed. At appellant’s request, the trial court filed findings of fact, wherein he found that appellees had had “adverse and peaceable possession, use and enjoyment of the strip of land in controversy * * *, using same for the maintenance of a driveway and sewerage line, flower beds and the growing of shrubbery and other shade trees” from the time they purchased Lot 20½ in June, 1923, up to the time this suit was filed in 1936.

While appellant urges several propositions, in the last analysis, the controlling question presented is whether there was sufficient evidence before the court to sustain a limitation title to the strip in appellees. The elements essential to title by limitation are not only set out in the statutes, but have become so well settled in adjudicated cases that any extended discussion of them would-be superfluous. See R.C.S. Arts. 5510, 5513, 5514, 5515; 2 Tex. Jur., §§ 3 and 4, pp. 11-14. The possession necessary to acquire such title must be open, adverse, peaceable, continuous for the required period of time, visible, hostile and exclusive.

In the instant case the recorded map or plat of these lots showed Lot 20 to front 100 feet, and Lot 20½ to front 150 feet, on Windsor Road. The Dentons who purchased Lot 20½ in 1923 thought that lot fronted 160 feet on Windsor Road. Regardless of that, however, the evidence was amply sufficient to show that in 1916, the owner of Lot 20½ erected a rock wall on what he then took to be the dividing line between these two lots. This wall enclosed as a part of Lot 20½ the two-foot strip here involved, was there when the Dentons acquired the property in 1923, and was then pointed out to them as being the dividing line between the two lots. This wall was later removed and a hedge planted along the same line. The hedge was subsequently removed and a fence built in its place. Clearly this was sufficient to constitute an enclosure of the strip as a part of Lot 20½. Mrs. Denton (her husband having died prior to the trial) testified unequivocally to the use of the strip involved; that they had continuously used and claimed it as a part of their property and that they thought it was a part of Lot 20½. Consequently, the .trial court’s findings of fact are sustainable under the evidence.

It makes no difference that the strip was not in fact included within the field notes of Lot 20½, nor that the Den-tons thought that it was. If the essential elements of a limitation title were shown, the fact that they were mistaken about the exact area included in their grant did not prevent the running of the statute in their favor. 2 Tex.Jur.- § 65, p. 124. Their intention to claim, and their claim of ownership of, the strip involved was clearly shown.

Nor do we think that the execution by the respective owners of these two lots in 1931 of paving liens calling for a frontage of 100 feet and 150 feet, respectively, necessarily negatives a hostile claim by the Dentons of the strip in question. Obviously these liens were drawn with reference to the official map of these lots appearing of record, and not from actual measurements on the ground. This is manifest from the fact that the combined frontage of these two lots in fact exceeded 250 feet; and there is nothing to indicate that the paving contractor or the property owners took into consideration either the strip in question or the actual location of the dividing line in question. From these facts and circumstances the trial court was authorized to conclude, as he evidently did, that the execution of these liens with the frontage stated therein, did not negative any hostile or adverse claim by the Den-tons of the strip here involved, and did not interrupt the continuity of their claim and user of the property in question.

While appellant complains generally of the failure of the trial court to make, as findings of fact, several purported findings of fact requested by him, the assignment and proposition stated thereunder are so vague, indefinite and general as. not to require consideration. An examination of these requested findings, however, ■discloses that they relate, not to ultimate facts determinative of a limitation title to the land involved, but merely to evidentiary facts and circumstances, e. g. as the length of the rock wall erected in 1916, when it was torn down, etc., all of which were but evidentiary of the extent and continuity of the adverse possession. It is settled that the court should, where findings are requested, make only findings of ultimate facts, not of evidentiary matters which support them. 41 Tex.Jur., § 386, p. 1259.

In the last analysis, the gist of appellant’s contentions is that the trial court erroneously found the facts necessary to ■sustain title by Imitation in appellees against him. Many of the facts were undisputed. On those that were, the evidence was conflicting. In such case, the trial court having resolved the conflict against appellant, under now settled rules, the appellate court has no authority to disturb such findings.

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


author: O’QUINN, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. BARCLAY.
    No. 3819.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1941.
    Sharfstein, Bell, Weinert & Nelson, of Beaumont, for appellant.
    J. G. Haralson, of Woodville, for appel-lee.
   O’QUINN, Justice.

Appellee sued appellant in the County Court of Tyler County, Texas, to. recover for professional, drug and hospital services rendered an alleged employee of the Warren Lumber Company, which company carried workmen’s compensation insurance in the appellant' company.

• Appellant answered by general demurrer, general denial, and specially '(a) that no claim for the charges sought to be recovered had been filed with the Industrial Accident Board within six months from the date of the injury; (b) that the alleged employee had elected to proceed against the alleged negligent third party for damages caused by his injuries and had prosecuted his claim against said negligent third party to judgment, recovering $5,000, and had thus barred all claims he may have had under the Workmen’s Compensation Law, and so was compelled to look to his patient, the employee, for compensation for his services.

The case was tried to the court without the aid of a jury, and judgment was rendered for appellee in the sum of $255.85. This appeal is from that judgment.

The record reflects that Willie Freeman was an employee of the Warren Lumber Company, and while in the course of his employment, on October 8, 1938, received an injury growing out of a collision of the log truck of Warren Lumber Company then being operated by Willie Freeman for said lumber company and a train of the T. & N. O. Ry. Company. Freeman sued the railroad and on October 23, 1939, obtained a judgment for $5,000. This became a final judgment. Neither in his petition nor the judgment was any claim for medical or hospital services included. Appellee, Dr. Barclay, treated the injured employee. Notice of the injury to Freeman was duly given both his employer, Warren Lumber Company, and its compensation insurance carrier, appellant herein. After the injured employee, Freeman, obtained his judgment against the railroad, appellee called upon appellant to pay his medical, drug and hospital charges for attention to Freeman, which it refused to do. On March 16, 1940, appellee filed his claim before the Industrial Accident Board. The Board made its final ruling and award refusing appellee’s claim, whereupon he gave notice that he would not abide the award, and filed this suit to set the award aside.

It is seen that the claim was not filed until one year, five months and eight days after the occurrence of the injury. Article 8307, Sec. 4a, Vernon’s Ann. Civ. Statutes of Texas, provides that a claim for compensation shall be made with the Industrial Accident Board within six months after the occurrence of the injury, but that for good cause the Board may, in meritorious cases, waive strict compliance as to filing claims. Appellee offered evidence to show good cause for not sooner filing his claim. Appellant objected to the admission of the evidence for the reason that good cause was not plead by appellee. The objection was overruled, and this ruling is assigned as error. We sustain the assignment. There was no plea of good cause to excuse the failure to file the claim sooner. Texas Employers’ Ins. Ass’n v. Palmer, Tex.Civ.App., 66 S.W.2d 454.

We sustain appellant’s assignment that the judgment in favor of appellee for the sum claimed due him as medical attention, drugs and hospital charges, was not supported by the pleading or the evidence. Appellee’s claim arose under Section 7 of Article 8306, V.A.C.S. of Texas, and Section 7b of said article requires that all such charges shall be,, fair and reasonable. There is not in the record any pleading or proof that the charges were fair and reasonable. Without such pleading and proof the judgment was not warranted.

For the errors discussed, the judgment is reversed and the cause remanded.


author: BLAIR, Justice.

text:
    BOOTY et al. v. STATE.
    No. 9112.
    Court of Civil Appeals of Texas. Austin.
    Feb. 26, 1941.
    Hazel & Ruhmann, of Alice, for appellants.
    Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., and Geo. W. Barcus, Asst. Attys. Gen., for appellee.
   BLAIR, Justice.

This litigation arose as follows: In 1922, E. F. Booty and his wife, Gertrude Booty, owned as community property approximately 878 acres of land in Jackson County, Texas. E. F. Booty died in 1922, leaving surviving him his wife and their two children, who are appellants in this case. In 1932 there was due to the state, county, and other taxing units a total tax of $5,417.90' against the land; and suit was brought to foreclose the tax lien, as provided by Art. 7326, R.S. 1925. On October 12, 1932, judgment was rendered foreclosing the tax lien; and on February 7, 1933, after proper notice of sale as required by Art. 7328, R.S. 1925, the land was sold to the State of Texas for the amount of the taxes. That is, there were no individual bidders for the: property at the sale, and under the provisions of Art. 7328 the sheriff bid the property .in for the State of Texas for the amount of taxes due. The land was not redeemed within the two years prescribed by law, and in May, 1935, after proper notice, the Sheriff of Jackson County, as provided by Art. 7328, sold the property in several pieces to several purchasers, for a total of $7,450, out of which amount he paid the taxes to the various taxing- units of the state, as provided for in the judgment, and sent the balance thereof, $2,032, to Charley Lockhart, State Treasurer, as provided by the statute.

Appellants filed this suit to recover from the State of Texas the sum of $2,032, upon the theory that the money had gone into the State Treasury, and under the provisions of the first part of Art. 7328, which provides that where the property is sold in the first instance to private bidders for more than the amount of the taxes due, anyone claiming same shall make proof of his claim to the satisfaction of the State Treasurer within three years after the sale of said land, after which time the same shall be governed by the law regulating escheat. The state filed a plea of limitation, a general demurrer, and a general denial. On the trial, the facts showed the sale of the land to the state because there were no bidders; that it was not redeemed within two years, and that the money derived from the second sale in excess of the taxes was paid to the State Treasurer sometime in 1935; and judgment was that appellants take nothing by their suit.

The sole question in the case involves a construction of Art. 7328, and the twoi methods of sale of property for taxes therein provided. The first method provides that where there are bidders for the property and it is sold for more than the amount of the taxes, the excess shall be deposited with the clerk of the court pending the two-year period for redemption of the land by the owner, to be disposed of by the judgment ; that unless it is redeemed within that time, then the clerk shall deposit the excess with the State Treasurer, who shall hold it in trust to be paid to the owner against whom said taxes were assessed, provided such owner or the one claiming the same shall make proof of claim to the satisfaction of the Treasurer within three years after the sale of the land, after which time the fund is subject to the law of escheat. This first method of sale was not used in the instant case because there were no bidders ; and under the second method of sale provided, the sheriff bid the land in for the state for the amount of all taxes due the state and the other taxing units. The property was not redeemed within two years, as required by the statute, and the sheriff sold the land as required by the statute and sent the $2,032 in the suit to the State Treasurer, as directed by the statute. The sheriff on the first sale of the land executed a deed to the state, which was duly recorded in the county where the land was sold. On his second sale of the land to individuals, after the expiration of the two years’ redemption period, he properly executed deeds to the various purchasers thereof. Having sold the land to the state in the first instance, and it not having been redeemed within the two years provided by law the land became the property of the state prior to the second sale of it, and the excess for which it was sold was the property of the state under the express terms of the.'statute; and the trial judge rendered the only judgment that he could have rendered under the evidence by denying appellants any recovery.

Appellants seem to confuse the first provision of the statute, which provides that where the property is sold at the first sale to private individuals for more than enough to pay the taxes, the excess shall be retained by the clerk for the period of redemption subject to the orders of the court rendering the judgment, with the second method of sale to the state when there are no bidders, contending that after the period of redemption of two years has expired, then the clerk shall transmit the excess to the State Treasurer, subject to be paid to the rightful owners filing proper claims with the State Treasurer within three years after the sale; and that after that time the fund is controlled by the laws relating to escheat. These provisions of the statute have no application to the undisputed facts in this case. There were no private bidders at the first sale and the property was bought in for the State of Texas. It was not redeemed within the two years provided by law, and the title of the state to the property became absolute. The propérty was then sold by the sheriff for the state, and after paying the amount of taxes due the local taxing units, the balance of the money was sent to the State Treasurer in accordance with law, which sum belonged to the state; and no provision is made for any further claims to be filed with regard to any excess over the’taxes which may have been due the state and local subdivisions. No such provision is necessary, because the state simply sold its own land and was entitled to the entire proceeds of the sale.

Under this view of the case, the limitation question raised has no application and need not be discussed. The judgment of the trial court is affirmed.

Affirmed.


author: NORVELL, Justice.

text:
    SOUTHLAND LIFE INS. CO. v. WHITE.
    No. 10909.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1941.
    Rehearing Denied April 2, 1941.
    George E. Seay, and Malone, Lipscomb, White & Seay, all of Dallas, for appellant.
    Herbert Oliver, of San Antonio, for ap-pellee.
   NORVELL, Justice.

This is an action brought for the recovery of a real estate broker’s commission by appellee, R. N. White, against appellant, Southland Life Insurance Company. Judgment in the sum of $1,951.67 was rendered for White upon a special issue jury verdict.

The appellant presents its case here in a typewritten brief of 188 pages submitting 54 propositions of law, based upon 59 assignments of error. Appellee’s reply brief is, of course, correspondingly lengthy. We have a total of 311 pages of typewritten briefs to assist us in determining questions arising out of a 224 page statement of facts. Recently, Judge Alexander has written concerning the proper preparation of a case for submission to a Court of Civil Appeals, and what was said by him in Lang v. Harwood, Tex.Civ.App., 145 S.W.2d 945, is pertinent to this case.

Appellee pleaded that “within the year 1938,” the Southland Life Insurance Company listed with him the property here involved, and promised to pay him a 5% commission upon the sale price,, which was placed at “about $40,000.” The petition [contained no claim for compensation under |a quantum meruit theory.

Special Issues Nos. 1 to 4, inclusive, and |the jury’s answers thereto, are as follows:

(1) Do you find from a preponderance Ilf the evidence, if any, that any officer or ligent of the defendant Company during |.he year 1938 employed the plaintiff, R. N. /bite, to sell the Kearny property for the Southland Life Insurance Company? An-lwer “Yes” or “No.”

We, the jury, answer: Yes.

If you have answered the foregoing luestion “Yes,” and not otherwise, then an-|wer the following question:

(2) Do you find from a preponderance |f the evidence, if any, that such officer or jent had authority to so employ the plain-|ff to sell the Kearny property for the imthland Life Insurance Company? Anther “Yes” or “No.”

IWe, the jury, answer: Yes.

Ilf you have answered the foregoing lestion “Yes,” and not otherwise, then Iswer the following question: ■

1(3) Do you find from a preponderance ]the evidence, if any, that such officer or ent, if any, agreed to pay plaintiff, R. N. Élite, a commission of five per cent of the |e price of the Kearny property? An-|er “Yes” or “No.”

ie, the jury, answer: Yes.

If you have answered the foregoing Istion “Yes,” and not otherwise, then Iwer the following question:

|4) Do you find from a preponderance ^he evidence, if any, that such officer or at, if any, was acting within his au-lity in so agreeing to pay plaintiff said lmission, if any? Answer “Yes” or

lre, the jury, answer: Yes.

|ie sale upon which appellee claimed a aission was made by the Southland to |. Erwin on January 11, 1939.

Appellant contends that the jury’s answers to the foregoing special issues are without support in the evidence. As sustaining the verdict against this attack, ap-pellee relies upon his own testimony given in the trial court, which in certain particulars was corroborated by his wife. This testimony is not very clear in several respects, but, viewing it in the most favorable light, it appears therefrom that during the year 1937 appellee had at least two conversations with Harry Seay, then president of appellant company. In the first conversation Seay told White that the company desired to sell the Kearny property and agreed to pay him.a five per cent'commission if he would procure a purchaser for about $40,000. John Phelan, who was not an officer of the insurance company, but an agent in charge of appellant’s city property, was present at the time, but White’s testimony does not show that Phelan took any part in the conversation which gave rise to the supposed listing contract.

The date of this conversation as fixed by White is every uncertain. ■ It may have been prior to April, 1937, according to one version of his testimony, or in June, according to another. His testimony is further subject to the interpretation that the sale price'of about $40,000 was fixed after the 'date of the conversation wherein White was requested to procure a purchaser. It further seems that about “cotton picking” time, or during the Mexican hunting season, during the year 1937, White had a second conversation with Seay. The record does not show what was said and done upon this occasion, although there was evidently some discussion had concerning the Kearny property. -There is no evidence of further conversations with Seay, who was succeeded as president of the ■ appellant company by A. Morgan Duke, on March 8, 1938. John- Phelan, however, remained in the employ of the Southland after that date, in the capacity of agent in charge of the company’s urban property.

White testified as to certain conversations with Phelan during the year 1938, and here emphasizes particularly an occurrence of December 6th of that year. According to White, Phelan was in San Antonio upon that date and with White inspected various properties owned by the Southland. Phelan attempted to call Erwin over the telephone from White’s office but was unable to reach him. Phelan then asked White to get in touch with Erwin and “see if you can’t get him to make an offer on the Kearny property.”

From the evidence above set out, three possible theories may be drawn, the validity of which we, of course, do not pass upon at this time, to-wit:

That the Southland made the oral contract declared upon, (a) acting through Harry Seay, its president, (b) acting through Seay and Phelan jointly, and (c) acting through Phelan, its agent having charge of its city properties.

The transactions had with Seay or with Seay and Phelan jointly, all occurred in 1937. The effect, therefore, of inquiring of the jury whether or not the Southland during the year 1938 employed White, was to submit to the jury the third theory above mentioned. The first two possible theories were not submitted, nor was a possible combination theory submitted, i. e., that Phelan was acting under the prior agreement White had with Seay, and reaffirmed said agreement in all its particulars by the transaction of December 6, 1938. Certainly, the inferences necessary to the support of this theory can not be drawn from the jury’s finding above set out without doing violence to the actual language used in the issue, and reading something into the finding which is in fact not there.

By the very terms of special issue No. 1 and its connected issues, particularly No. 3, we are restricted to the inquiry: Did Phelan, as agent of the Southland, employ White to sell the Kearny property and agree to pay him a five per cent commission ? This, for the reason that there is no evidence that any other agent or officer of the Southland mentioned or discussed this particular matter with White during the year 1938.

The obvious answer to the question above stated is no. We therefore sustain appellant’s assignments and hold that the issues above set out are without support in the evidence. Johnson’s Administrator v. Shaw, 41 Tex. 428; National Life & Accident Ins. Co. v. Langston, Tex.Civ.App., 42 S.W.2d 1037; Williams v. Craig, Tex.Civ.App., 252 S.W. 876.

The contention presented by appellant upon this point does not present a question of variance between the pleadings and proof, as suggested by appellee. Cases holding that immaterial variances may 'be disregarded in the absence of surprise are not in point. We do not hold that the mere fact that a date given in a special issue varies somewhat from a date fixed by the evidence necessitates the reversal of a case. There is nothing technical about the rule applied here. In this case the date, the year 1938, serves to designate a certain transaction or series of transactions about which inquiry is made. We are not at liberty to disregard the date given nor the resulting designation of events, for the obvious reason that we can not say that the jury in this case so disregarded said date and designation of occurrences. If, however, the date given in the issue be disregarded or considered immaterial, and the issues construed as contemplating and including the transactions had by White with both Seay and Phelan, then such issues are subject to the criticism of appellant in regard to multifariousness.

Our holding above stated necessitates a reversal of the case, and in view of another trial we pretermit discussion of the other matters-raised in the briefs filed by the parties.

The judgment of the trial court is reversed and the cause remanded to said court for new trial.


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    HUMBLE OIL & REFINING CO. et al. v. BENNETT et al.
    No. 9005.
    Court of Civil Appeals of Texas. Austin.
    March 12, 1941.

      Vinson, Elkins, Weems & Francis, W. S. Elkins, and W. H. Francis, Jr., all of Houston, for appellant Coast Petroleum Corporation.
    E. H. Thornton, Jr., of Galveston, for appellants Maeo Stewart, Jr., A. J. De-Lange, and Brantley Harris.
    H. E. Bell, of Houston, and Powell, Rauhut & Gideon, of Austin, for appellant Humble Oil & Refining Co.
    Gerald C. Mann, Atty. Gen., and Ed Roy Simmons, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
    Mark McGee, of Fort Worth, for ap-pellee W. E. McKinney.
    Baker, Botts, Andrews & Wharton, Tom Scurry, and Hugh M. Patterson, all of Houston, for appellee Galveston-Houston Electric Ry. Co.
   BAUGH, Justice.

This is a Rule 37 case. The land involved is a portion of the Galveston Houston Electric Railway Company Right of Way in Galveston County. F. W. Bennett, D. P. Kenyon, and W. E. McKinney acquired a lease on about 32.4 acres of such right of way, 100 feet wide, running northwest and southeast at the point in question. They had drilled, under permit granted by the Railroad Commission, one well on said tract, had been granted a permit on December 21, 1937, for a second well on same approximately 4,200 feet southeast from the first, which they had not drilled; and on July 27, 1938, were granted permit for a third well on said strip located approximately 1,900 feet southeast of their well No. 1. This third permit was protested by the Coastal Petroleum Company, owner of the adjoining 200-acre leasehold on the southwest of the strip, and the Humble, owner of the adjoining 179-acre leasehold on the northeast of the strip. The permit was granted to prevent confiscation, and the Coastal and Humble seek by this suit to set it aside on the ground that it was not necessary for that purpose. Kenyon conveyed his interest in the leasehold to Bennett, who defaulted in this suit; and it was defended below by McKinney, owner of an overriding two ninths interest in the leasehold, by the Railroad Commission, and by the intervener, Galveston Houston Electric Railway Company, owner of the royalty in the right of way. Trial was to the court without a jury and at the close of plaintiff’s evidence, upon motion of the defendants, judgment rendered against the plaintiffs; hence this appeal.

The spacings in this area prescribed by Rule 37 were 330-660 feet, or one well to 10 acres. It is manifest that this 100-foot wide strip could be developed only through exceptions to the Rule. While the general principles relating to confiscation in such cases are now well settled, their application to the instant case has been rendered difficult because of the unusual fact situation presented.

The entire lease of appellees aggregated approximately 32.4 acres. Only 10.7 acres of it lies immediately between the Coastal lease and the Humble lease. The Coastal 200-acre lease had nine wells thereon. The Humble lease of 179 acres had seven wells. The remaining portion of the appellees’ 32.4-acre lease extended both northwest and southeast of the common area.

While the 330-660-foot spacings authorized one well to each 10 acres, appellants claim to have developed their leases on the basis of one well to 20 acres; and their witnesses testified that in this area one well would drain 20 acres surrounding it. The gist of appellants’ contention is that since the 10.7 acres of said strip, directly between appellants’ leases, already had one well capable of, draining and actually draining 20 acres; whereas, appellants’ adjoining tracts were drilled to a density of one well to each 20 acres or more, and since the daily allowable of 74 barrels was allotted to most of these wells, the ap-pellees already had a drainage per acre advantage over appellants of 2 to 1; and that if a second well be permitted on this 10.7-acre strip this disparity will be greatly increased. And that with the one well, disregarding the permit, not drilled, for the second well to the southeast on appellees’ lease, appellees already had a fair and equal opportunity with the adjacent leaseholders to recover their fair share of oil in place, or its equivalent, beneath their tract.

If the underground conditions, the well potentials, and daily allowables throughout this area had been substantially uniform, such contention, under numerous cases arising in the East Texas field heretofore decided by this court, might be correct. That is, that no confiscation of appellees’ property, the only question here presented, without the additional well would result. But the question presented is not that simple. Since the confiscation issue is dependent in the main on the question of drainage, and so far as appellants are concerned that is referable to wells on said strip within drainage distance of their respective tracts, the conditions existing on the, portions of appellees’ right of way strip beyond drainage distance from appellants’ tracts would not affect appellants’ rights on this issue. That is, appellees with a 32.4-acre lease, only 100 feet wide, would not be’ entitled to extract the equivalent of the total amount of oil under the entire 32.4 acres from the 10.7-acre section thereof adjoining appellants’ leases, a great portion of which would necessarily be drained from beneath appellants’ lands. Since the undrilled permit No. 2 of ap-pellees was for a well on said strip 750 feet removed from the nearest point of appellants’ leases, and would not, if drilled, drain any oil from beneath their leaseholds, it could not affect appellants’ rights on that issue. Consequently it may be disregarded for the purposes of our inquiry here.

But underground conditions in this area were shown to be far from uniform. It is located in what is known as a salt dome area, not a common pool. There had been found at varying depths five separate producing oil sands in the area, some of which extended under parts of both appellants’ and appellees’ leases, and others were found under other portions. Neither the presence of these sands, their thickness over any appreciable area, nor the gas pressure were at all uniform. What was known as the “Humble sand,” the most productive, was encountered at from 8,700 feet to 9,000 feet. The other sands were encountered nearer the surface. No portion of the area here involved appears to be underlaid with all five sands, and the thickness of such sands where found and the gas-oil ratio therein were not uniform over any appreciable area. The areas so underlaid by these various sands, as testified to by appellants’ witnesses, in view of the distances between wells already drilled, manifestly could not be accurately defined, but were largely estimates only. In estimating the amount of oil recoverable through wells in this area, appellants’ witnesses predicated such estimates, in the main, on an oil-gas ratio of 2,000 to one, and where such oil-gas ratio exceeded 3,-500 to one such wells were not classed as oil wells, but as producers of gas or gas distillate. Notwithstanding such classifications by appellants’ witnesses, however, it was shown that the Humble No. 11, located 433 feet from the strip in question, was classified by the Railroad Commission as an oil well, and was producing under an oil-gas ratio of 15,900 to one, with an allowable of 47 barrels per day, compared with a 74-barrel per day allowable for other wells in this area with a less oil-gas ratio.

If the testimony of these witnesses be true that a well in this area will drain twenty acres, the four wells' on the Coast 200-acre tract to the southwest, set back from 329 feet to 400 feet from this tract, were all draining oil from beneath appel-lees’ tract. The same would be true of four Humble wells to the northeast staggered alongside this strip of land. In other words, under such testimony, there were eight producing wells on appellants’ tracts within drainage distance of this 10.7-acre strip. It was further shown that the oil-gas ratio of the nine wells on the Coast 200-acre tract varied from approximately 2,-000 to one to more than 9,000 to one; and that on the Humble 179-acre tract in one of its wells the ratio ran as high as 27,000 to one, which well had a daily allowable of only 27 barrels. Further, that of the nine Coast tract wells, four of them were staggered alongside appellees’ tract at distances of 400 feet or less, and in the portion of the Coast tract, beyond drainage .distance from this strip, areas far in excess of 20 acres contained no wells at all. The same was true of the Humble 179-acre tract. Four of the latter’s seven wells were within 468 feet of this strip, with the more remote portions of the Humble tract largely undeveloped, even on a 20-acre per well pattern. This was accounted for by widely varying underground conditions, e. g., gas pressure, or absence of some, or all, of the several oil sands, a wide variation in the oil-gas ratio, sand 'thickness, etc. In brief, lack of uniformity in underground conditions. Even if underground conditions had been uniform, density of wells on the tracts of appellants, calculated by merely dividing the total number of wells thereon into the total acreage, does not afford a conclusive criterion on the issue of confiscation. The density rule, to afford an equitable criterion, where predicated upon substantially uniform underground conditions, presupposed a reasonably uniform pattern of development of the surrounding area. That. is, location and spacing of wells with reference to the lands involved on a reasonably uniform pattern under Rule 37. Manifestly, a 200-acre tract with ten wells, all drilled, for example, on the east 100 acres thereof, and none on the west 100 acres, would not constitute a development of the whole on a 20-acre per well pattern, and should not properly be so considered. Shell Oil Co. v. Railroad Commission, Tex.Civ.App., 133 S.W.2d 791.

Appellants further insist that since, according to the testimony of their witnesses, one well will drain 20 acres surrounding it in this area, and they had developed their adjoining leaseholds on that basis (which taking their tracts as a whole, was not accurate), appellees with one well already drilled on the 10.7-acre tract between and adjacent to their leaseholds, already had a drainage advantage over them. This contention, however, does not take into account the fact that the spacing provisions of Rule 37 applicable to this area (660-330 feet) authorized development of the area on the basis of one well to 10 acres without the necessity of an exception to the Rule to do so. Such a spacing provision implies a finding by the Commission, we think, that a well would drain 10 acres instead of 20, as insisted by appellants. Ap-pellees were entitled to develop their tract, even if exceptions to Rule 37 were necessary to do so, on a basis of one well to 10 acres, if that were necessary, as the Commission evidently so concluded, to enable them to recover the equivalent of the oil beneath their lands. The appellants were entitled under the Rule, without cm exception thereto, to • do the same. The mere fact that they elected, for reasons satisfactory to themselves, to develop their leases to only half the density which the Rule itself authorized, affords no sufficient ground for them to insist that an adjoining leaseholder’s rights are referable to a 20-acre drilling pattern, adopted by them, instead of a 10-acre drilling pattern authorized by the Commission: If a larger drilling pattern for this area were proper, that was a matter for the Commission to determine. We are here concerned only with the spacings provided in the Rule, as established by the Commission.

Appellants also insist that the one well on appellees’ strip producing from the “Humble sand” is clearly sufficient to protect them from drainage in that sand; and if entitled to another well, based on the total amount of oil in all sands underlying their tract, same should have been authorized only to one of the shallower less productive sands. The permit in question does not refer to any of these oil sands. It merely authorizes a maximum depth of 9,-000 feet. The drilling of such well is subject to the regulations of the Commission. It still has jurisdiction, we think, to regulate this matter, and control the drilling thereof so as to prevent waste and to prevent confiscation; and appellants’ relief in this regard would, we think, be a matter for the Commission to determine. It does not appear whether their protests in this regard were made before the Commission, nor that the Commission passed upon this question. Their contention appears to have been that appellees were not entitled to any more wells at all. It not appearing that the Commission passed upon this contention, it is not before us for determination here. Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W.2d 73.

In the light of all the facts and circumstances, above outlined, we are not prepared to say that there was not substantial evidence before the Commission upon which to justify a permit for an additional well on appellees’ tract, within the area involved, in order to prevent confiscation of their property, as that term has been considered in numerous adjudicated Rule 37 cases, not necessary to be here cited. Not having met the burden of proof in this regard resting upon appellants in attacking the permit in question, the judgment of the trial court is affirmed.

Affirmed.


text:
    MT. VIEW COMMON SCHOOL DIST. et al. v. BLANCO COUNTY BOARD OF SCHOOL TRUSTEES et al.
    No. 9117.
    Court of Civil Appeals of Texas. Austin.
    Feb. 26, 1941.
    Rehearing Denied March 19, 1941.

      Emmett Shelton, of Austin, for appellants.
    N. T. Stubbs, of Johnson City, for ap-pellees.
   BLAIR, Justice.

This suit is a contest of an election authorizing the annexing or grouping of three contiguous common school districts with the Blanco Rural High School District No. 1, the territory of the four districts being more than 100 square miles. On a former appeal (141 S.W.2d 751), we reversed the judgment declaring the election invalid; but remanded the cause to make necessary parties, pointing out the controlling issues and the law applicable in view of another trial. Necessary parties were made and the trial resulted in judgment declaring the election to be valid; hence this appeal.

The agreed facts show that the Blanco Rural High School District No. 1 was created by final action of the County Board of School Trustees of Blanco County on May 1, 1939, by grouping three contiguous common school districts with the Blanco Independent School District No. 1. Thereafter, August 16, 1939, the County Board called an election to determine whether or not the contiguous McKinney, Live Oak, and Mt. View common school districts should be “annexed to and grouped with” the Blanco Rural High School District No. 1, embracing the territory of the four districts in a district to be known as the Blan-co Rural High School District, and having a territory of more than 100 square miles. The election was called upon the petition of 73 voters residing within the territory of the four districts. The ballots read: “For the Annexation of Certain Districts” and “Against the Annexation of Certain Districts.” The County Board canvassed the returns and found them to be favorable to the annexing or grouping and accordingly ordered that the three common school districts “be annexed to and grouped with” the Blanco Rural High School District No. 1, and the County Board, did all things necessary to annex or group the three common school districts with the Blanco Rural High School District. Further agreed facts are as follows:

“In the election the results were as follows, to-wit: In the Live Oak Common School District there were 38 votes cast against annexation and 3 votes for annexation; in the Mt. View Common School District there were 17 votes cast against annexation and 1 vote for annexation; in the McKinney Common School District there were 22 votes cast against annexation and 11 votes for annexation and in the Blanco Rural High School District there were 150 votes for annexation and 25 votes against annexation.”
“That on August 16, 1939, the school census showed for the school year beginning in September, 1939, that there were 230 white and 11 colored scholastics in the Blanco Rural High School District No. 1, as it existed prior to said election. That the scholastic population of the common school districts on August 16, 1939, were as follows: Mt. View Common School District had 29 scholastics, the Live Oak Common School District had 21 scholastics and the McKinney Common School District had 27 scholastics. The highest daily attendance at these schools during the school year 1938-1939 was as follows: Live Oak Common School District had 12, the McKinney Common School District ■ had 13 and the Mt. View Common School District had 8. During the school year of 1939-40 the highest daily attendance was as follows: Live Oak Common School District had 8, the McKinney Common School District had 7 and the Mt. View Common School District had 8.”

Under the agreed facts appellants make 'three contentions as follows:

1. That the election to determine if the contiguous common school districts should be annexed or grouped with the Blanco Rural High School District No. 1 should have been held under the provisions of Article 2922aá, Vernon’s Ann.Civ. St. (Acts 1937, c. 416), instead of the provisions of Articles 2922a and 2922c.

2. That the agreed scholastic population of the respective districts involved did not authorize the annexation of the four districts under the provisions of Articles 2922a and 2922c.

3. That the provisions of Articles 2922a and 2922c do not authorize the grouping of common and independent school districts to form rural high school districts.

These same points or contentions were made by appellants as appellees on the former appeal. In remanding the cause to make necessary parties, we held that the record as presented showed a valid election for annexing or grouping of the common school districts with the Blanco Rural High School District No. 1 under the provisions of Art. 2922a and 2922c; and we specifically overruled appellants' similar contention to their above contention “1”, holding that Arts. 2922aa and 2806 related solely to consolidation of common school districts with already formed rural high school districts, as distinguished from the annexing or grouping of common school districts with already formed rural high school districts. The effect of appellants’ contention “1” is that Art. 2922aa-either repealed Arts. 2922a and 2922c, or that it now provides the only method for consolidating, annexing or grouping of common school districts with already formed rural high school districts is to hold an election as provided for by Art. 2806, which must be called by the county judge and canvassed by the commissioners’ court, and must have been authorized by a majority vote in each of the districts proposed to be consolidated.

In our former opinion we held that Arts. 2922aa and 2806 related solely to the matter of consolidation of school districts of various types, and that they had no application to the matter of annexing or grouping of school districts of various types to form rural high school districts which are authorized by Arts. 2922a and 2922c. This conclusion was based upon court decisions holding that in cases of consolidation all of the school districts are destroyed or cease to exist, and the new consolidated district supersedes or takes their place; whereas, in cases of annexing or grouping the various districts are not destroyed, but are continued under the provisions of Art. 2922b as elementary schools annexed to or grouped with the parent rural high school district for school purposes and controlled by it, and which rural high school district so created is by Art. 2922b continued as a common school district. This exact contention of appellants was made in the case of State ex rel. Lowe v. Cadenhead, Tex.Civ.App., 129 S.W.2d 743. The Cadenhead case involved the annexing or grouping of common school districts with an independent school district as the parent district, and it was contended that Art. 2922aa repealed the provisions of Arts. 2922a and 2922c with respect to annexing or grouping of school districts; the court holding that Art. 2922aa related solely to consolidation of districts and did not effect a repeal of the articles providing for annexing or grouping of districts. To the same effect is Trinity Ind. School Dist. v. Dist. Trustees, Tex.Civ.App., 135 S.W.2d 1021.

It is next contended by appellants that the agreed scholastic population of the respective districts here involved, that is the Blanco Rural High School District No. 1 as it existed on August 16, 1939, with the contiguous three common school districts here involved, did not authorize the annexation of the four districts under the provisions of Arts. 2922a and 2922c. We overruled this contention on the former appeal without comment, and we overrule it on this appeal with this discussion of the matter: After the Blanco Rural High School District was formed by the County Board on May 1, 1939, it continued under the provisions of- Art. 2922b as a common school district. The first sentence of Art. 2922a provides that: “The county school trustees shall have the authority to form one or more rural high school districts, by grouping ' contiguous common school districts having less than four hundred scholastic population.” The agreed facts show that considering the Blanco Rural High School District No. 1 as a common school district and the other three districts grouped or annexed thereto as common school districts, specific authority is given the board to annex or group them by the above quoted language of Art. 2922a, with the further provision of Art. 2922c, which provides that no rural high school district as provided for herein shall contain an area greater than 100 square miles, unless the proposition of annexing or grouping is submitted to a vote of the qualified voters of the proposed rural high school district voting at an election called for such purpose by the county school board, which was the procedure followed by the board in the instant case. We also hold that the election in the instant case was to determine whether the three common school districts should “be annexed to and grouped with” the Blanco Rural High School District No. 1, another common school, district as classified by Art. 2922b. And the question is now settled that where the proposed rural high school district does not contain more than seven elementary districts, but does contain more than 100 square miles, the issue is governed by the majority will of the entire proposed district as expressed by the qualified voters at an election called by the county school board for the purpose of annexing or grouping; and that it is not necessary that the majority of the voters nor of the school trustees in each district involved consent to the formation of the proposed rural high school district. Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770; State ex rel. Lowe v. Cadenhead, supra; Wise Common School Dist. v. Castro County School Trustees, Tex.Civ.App., 141 S.W.2d 1028, error refused; County Board of School Trustees v. Mayfield Common School Dist., Tex.Civ.App., 140 S.W.2d 956, error dismissed.

The remaining contention of appellants is that the provisions of Art. 2922a and 2922c do not authorize the grouping of common and independent school districts to form rural high school districts. This contention is answered by our above conclusion that after the formation of Blanco Rural High School District No. 1, it continued thereafter as a common school district under the provisions of Art. 2922b. Therefore the question of whether the statute authorized a grouping of common and independent school districts to form a rural high school district is not involved.

The judgment of the trial court will be affirmed.

Affirmed.