author: PRICE, Chief Justice.

text:
    GANN et ux. v. PUTMAN et al.
    No. 3933.
    Court of Civil Appeals of Texas. El Paso.
    April 4, 1940.
    Rehearing Denied May 30, 1940.

      S. D. Hopkins, of Corpus Christi, for appellants.
    Raymond Edwards and Lewis M. Welsh, both of San Antonio, and Keys & Holt, Oscar Spitz, I. W. Keys, Mobley, Roberts & Lockett, Boone, Henderson, Boone & Davis, John C. North, Kleberg, Eckhardt & Lowe, Allen V. Davis, and Russell Savage, all of Corpus Christi, for appellees.
   PRICE, Chief Justice.

This suit was instituted by plaintiffs in one of the District Courts exercising jurisdiction in Nueces County, to-wit, the 28th Judicial District. Plaintiffs sought to recover of defendants thp title and possession of a tract of land situated in or near the City of Corpus Christi. Defendants each interposed a general exception and several special exceptions to the sufficiency of the trial petition of plaintiffs. These exceptions were sustained, and, plaintiffs declining to amend, the court entered final judgment against plaintiffs. From this judgment appeal was duly perfected.

The parties will be here designated as they were in the trial court.

The trial petition is of great length with several long exhibits attached thereto, and hence only the vital parts thereof will be set forth.

Plaintiffs, in what they evidently intended as a first count, set up appropriate and sufficient allegations for the statutory action of trespass to try title. Incorporated in this count also were allegations that plaintiffs were husband and wife and were such at all relevant times, and the property involved is and was at all such relevant times their homestead. Ejectment is alleged to have been committed by defendant F. D. Heim on July 14, 1935. It is alleged that the other defendants, including Heim, as trustee, were claiming some interest in the land, the exact nature and extent of which was unknown to plaintiffs; that they were made defendants to the end that they might set up their claims, the validity thereof being denied by plaintiffs. The prayer is as follows: “Accordingly Plaintiffs pray: That each defendant be cited to appear and answer this Second Amended Original Petition; that they have judgment for the title and possession of all of the above described real estate; that plaintiffs have their Writ of Possession for the above described property and premises; that they have judgment for the rental, use and enjoyment of said property and premises; that the rights, claims and interests, if any, of each or all of the defendants be fixed, established and determined, but that the rights and interests of these plaintiffs be adjudged and declared to be superior to any right or interest claimed by all, or either, of said defendants; that plaintiffs have their costs and plaintiffs further pray for any and all such other and further relief, general or special, that they may be justly entitled to.”

The next paragraph, which is unnumbered, commences as follows: “And for further cause of action these plaintiffs would show to the Court that on said date; July 14, A. D. 1935, * *

July 14, 1935, is the date of ejectment previously alleged in what plaintiffs considered their first count. Then follow allegations in great detail as to a judgment theretofore entered in the District Court for Nueces County, 117th Judicial District; that said judgment was entered in cause No. 13,405 — B in a case styled Kathleen Hocker et vir. v. Lloyds America et al. It is alleged that said suit was started by plaintiffs there to recover on a fire insurance policy for destruction of improvements on the property in question here; that plaintiffs there held a purported deed of trust on the property executed by plaintiffs here and purporting to secure to plaintiffs there the principal sum of $5,000; that thereafter defendant Lloyds America, in its answer to the suit aforesaid, sought to be subrogated to the alleged lien of plaintiffs there; the filing of a supplemental petition by plaintiffs there, wherein judgment of foreclosure of the deed of trust lien against plaintiffs here on the property in question here was sought; the rendition of a judgment in the cause adjudging recovery by the plaintiffs there of $5,575 against Lloyds America; adjudging in favor of plaintiffs there against plaintiffs here a foreclosure of the deed of trust lien on the property in question here in the sum of something over $7,000. Further, that there was a provision in the judgment that up to the amount recovered there against Lloyds America, it should be subrogated to the lien of plaintiffs there against plaintiffs here. Further, that order of sale issued on such purported judgment commanding the sale of the property in question here for the satisfaction of the deed of trust lien of plaintiffs there. A purported sale is averred under such process and a purchase thereunder by F. D. Heim, trustee. A copy of the judgment is attached to plaintiffs’ petition, such copy reciting the appearances of plaintiffs here. A copy of the order of sale, together with the sheriff’s return thereon is also attached to the petition of plaintiffs. The judgment there is here assailed as being void for many reasons. Among others, that plaintiffs here were never cited to appear therein, never appeared therein, never authorized anyone to appear therein for them — in short, plaintiffs deny any personal jurisdiction over them, or either of them. Plaintiffs conceded in their petition that an attorney filed a pleading in the cause and purported to represent them, but deny authorizing him to so do, or any ratification of his so doing. The execution of a purported acceptance of service of plaintiffs here in the cause there was denied under oath by each of the plaintiffs here.

The property is averred to have been the homestead of plaintiffs at the time of the giving of the deed of trust involved' in said suit, and if so, the allegations are sufficient to show that same was void. To summarize, the allegations, given a liberal construction, state a valid defense to the foreclosure on the property in question had same been urged on the trial in the 117th District. The petition concludes as follows : “Accordingly plaintiffs did in open Court ask for, and the Court did grant, leave to amend his said first amended original petition and the defendants as above set out and named must each and all be cited to appear and answer this pleading and upon trial of this cause plaintiffs pray that the said above mentioned judgment be set aside, the sheriff’s sale and sheriff’s deed be held void together with all other conveyances and instruments depending thereon be cancelled, set aside and held for naught, and plaintiffs have and recover judgment for the title to and possession of the above described property and premises, together with their writ of possession, damages, costs, and any and all such other and further relief as they may be entitled to under the facts of this case.”

It may be helpful in the discussion and consideration of the questions involved in this appeal if a few fundamental legal-propositions are stated which have a bearing thereon and relation thereto.

Where plaintiffs, seeking to recover title and possession of land, plead particularly the written instruments and other facts constituting the basis and showing the nature of the claim to the property, the question to be determined in disposing of the exceptions is the sufficiency .of the facts particularly averred. Snyder v. Nunn, 66 Tex. 255, 18 S.W. 340; McDonald v. Red River County Bank, 74 Tex. 539, 12 S.W. 235; Meyer v. Paxton, 78 Tex. 196, 14 S.W. 568; Martinez v. Gutierrez, Tex.Com.App., 66 S.W.2d 678; Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, 745.

The above-stated proposition is formulated from the opinion of Judge Smedley-in the case last cited. To support this proposition the authorities cited are likewise taken from that opinion. It might be-well to note here, as having a bearing on. some of the contentions urged by appellants, that the special exceptions in the case of Sanderson v. Sanderson, supra,, were held to be in effect general exceptions.

Judge Townes, in discussing the-nature of special demurrers, in substance states this proposition: Included in a special demurrer is a general demurrer; a general demurrer only joins issue as to-substance of the pleading demurred to, but: a special demurrer joins issue both as to the substance and form, and as to the latter it must point out the defects. Townes’ Texas Pleading, 2d Ed., p, 531.

An attack on a domestic judgment in another court of co-ordinate jurisdiction with the court rendering the judgment attacked is a collateral attack. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; Empire Gas & Fuel Co. v. Albright, 126 Tex. 485, 87 S.W.2d 1092.

The recitals as to jurisdiction over the person in a judgment assailed by collateral attack are conclusively presumed to be true, and may not be disproven in such an attack. Levy v. Roper, 113 Tex. 356, 256 S.W. 251; Empire Gas & Fuel Co. v. Albright, supra, and authorities there cited.

The case of Bender v. Damon, 72 Tex. 92, 9 S.W. 747, 748, may present a limitation on the proposition last above announced. In that case a judgment of the District Court of Navarro County was assailed in the District Court of Ellis County. The facts in many respects parallel the facts here. Quoting from Chief Justice Stayton’s opinion, “Some of the facts which he [plaintiff] alleged to show the invalidity of that judgment, execution, and sale were such as might entitle him, by a proper proceeding, to have had them vacated, but not such as to render them void. The petition, however, went further, and alleged facts which, if true, would render the judgment void. It alleged that the plaintiff was a non-resident of this state; that he never was cited to appear, and did not appear, in person or by attorney, in the proceeding in which the judgment in favor of Johnson and against himself was rendered; and that appellees claim through an execution and sale made under a judgment so rendered. If these accounts be true, the judgment was void, and no one could acquire rights under it.” The trial court sustained a general demurrer to plaintiff’s petition. The case was reversed and remanded.

We do not believe, aside from mere legal conclusions, the allegations of plaintiffs’ second count here show that the judgment attacked is void. It may be that the allegation as to the non-residence of defendants in Bender v. Damon is the fact which differentiates and distinguishes it from the great number of authorities supporting the rule that the record, showing jurisdiction, on collateral attack, the judgment is invulnerable.

In substance plaintiffs contend here that their petition contained two counts, namely, the first, the stereotyped action of trespass to try title; the second, an action to set aside the judgment and recover the land described in the first count. The position taken is that each of these counts is entirely independent of the other, and the legal sufficiency or insufficiency of one is to be determined without regard to the allegations of the other. Further, that in neither count do plaintiffs specially plead their title. The prayers of the two alleged separate counts have been heretofore copied herein. It is necessary and vital to determine whether the general demurrer may attack the allegations of both of the alleged counts as one unit, or the attack thus made must be several. This is but stating the question posed in another way. Under Rule 4 of the Rules for District and County Courts, plaintiff is given the right to plead his cause of action or causes of action in several different counts. If election is so made, the rule provides as follows: “ * * each within itself- presenting a combination of facts, specifically amounting to a single cause of action, which, when so drawn, shall be numbered, so that an issue may be formed on each one by the answer.” Texas Court Rules, Smoot, p. 349.

Article 2003, R.S.1925, prescribes the requisites of plaintiff’s petition. Article 7366, R.S.1925, provides as to the petition in an action in trespass to try title.

It is clear that no cause of action is stated in what, for convenience, is denominated as the second count. The allegations, aside from mere legal conclusions, show that the judgment assailed is at best voidable, and-not void. If voidable, it cannot be set aside in this action. Further, if voidable only, it affirmatively shows that plaintiffs are without title sufficient to give them the right to the immediate possession of the property in controversy. Judging this count singly, the allegations as to plaintiffs’ present title to the property are destroyed by the allegations as to the judgment and the subsequent proceedings thereunder.

It seems well settled that where, in one count, plaintiff sets up a statutory action in trespass to try title, and in a subsequent count pleads the title specifically, that the specific plea in the subsequent count limits and qualifies the general count. Snyder v. Nunn, supra; Gatewood v. Graves, Tex.Civ.App., 241 S.W. 264; Morrison et al. v. Cloud, Tex.Civ.App., 13 S.W.2d 735; Lynch v. First National Bank of Nevada, Tex.Civ.App., 50 S.W.2d 418, writ refused.

In Gatewood v. Graves, supra [241 S.W. 265], it is said: “It is true that, generally speaking, a petition containing several counts is not subject to a general demurrer because one count is bad. But, in a suit of trespass to try title, where plaintiff pleads in one count the specific facts upon which he relies, and such facts, if proven, do not show that he has a right to recover, as held in Snyder v. Nunn, supra, it is useless to proceed with the trial, where the facts alleged do not sustain plaintiff’s action.”

The case of Mercer v. Rubey, Tex.Civ.App. 108 S.W.2d 677, writ denied, is a case, in some respects, parallel to the case at bar. In that case there was a statutory suit in trespass to try title. In addition to the allegations in trespass to try title, it was pleaded a cloud was cast upon their title by virtue of a judgment in favor of appel-lee by the District Court of Dallas County. The venue of the action was in Wise County. It was there held the allegations were insufficient to show that the judgment of the Dallas Court was void; hence, the petition was subject to general demurrer. Writ of error was denied in this case by the Supreme Court. It is applicable to several of the propositions urged by appellants here. However, the opinion does not show whether the pleading was by separate counts or otherwise.

Plaintiffs contend here that their aver-ments in the second count as to the judgment in the 117th District Court are not a pleading of title on their part. In support of this position the case of Harper v. Brown, 127 Tex. 631, 95 S.W.2d 1291, is cited. A careful consideration of that case will disclose that two of the plaintiffs did not make the allegations seeking equitable relief, and for this reason the action in sustaining the general demurrer was held error.

The case of Joyner v. Christian, 131 Tex. 274, 113 S.W.2d 1229, might plausibly be urged to an extent to support plaintiffs’ contention here. There the additional allegations set forth in plaintiff’s petition were prefaced by the express statement it was not the purpose, in adding the same, to abandon the general pleas of title, and same were defensive in their nature.

The second count here cannot be construed as strictly defensive. Facts are set up which are sought to be used as a basis for the action of the court. It is sought to have the judgment of the 117th District Court cancelled and all conveyances based thereon.

If we consider the allegations of the two counts as a whole and concede the truth of the allegations well pleaded, we have the rather anomalous situation that plaintiffs, under count one, have title to the land in controversy; that under count two they have not title to the property in controversy, and same, in this proceeding, cannot be reinvested in them. This situation is contradictory. If the allegations were mingled in the same count, the count could not stand, because it would be inherently repugnant.

Count two, construed in accordance with the facts pleaded, is a plea for the reinvesting of the title in plaintiffs. The facts pleaded fail to disclose a legal right to this reinvestiture.

If the judgment was void, as alleged by the way of conclusion in the second count, its validity could have been assailed under the first count. Here we have not a showing for alternative relief. If the allegations of count two are correct, plaintiff is without title.

We are of the opinion that count two is an attempt to specially plead the title of plaintiffs. This is so because it attempts to plead a present right to reacquire the title. It is insufficient to show that right. On the whole, the petition shows a divestiture of the title which it seeks to invoke.

There is another contention of plaintiffs that must be considered in determining the correctness of the trial court’s ruling on the general demurrer. The property involved in this suit is Block 15, of Port Aransas Cliffs Addition to the City of Corpus-Christi, and another part of that addition, described as having its beginning point in-the east edge of the street known as Ocean. Drive, opposite the southeast corner of Block 15 of said addition; thence east to the water’s edge of Corpus Christi Bay; thence north with the water’s edge of said Bay to a point intersecting the middle line of Scott Street; thence west to the east edge of Ocean Drive; thence south with the east edge of Ocean Drive to the place of beginning.

In the supplemental petition of plaintiffs in the case in which the judgment of foreclosure was entered, the beginning point of the land is set forth at a point in the east edge of the street known as Ocean Drive, opposite the southeast corner of Lot 15 of said addition. With the substitution of the word “block” for “lot” the descriptions are identical insofar as the metes and bounds description is given. In the judgment assailed the beginning point is described as opposite the southeast corner of Lot 15 of said addition, instead of Block 15. In plaintiffs’ trial petition here it clearly appears that the deed of trust covered all of the land described in plaintiffs’ petition here. We think, under the undisputed record here, that the land described In the judgment assailed and sold thereunder is the identical land put in controversy by plaintiffs’ petition.

There is no merit in the contention of plaintiffs that because defendants failed to have their exceptions acted on at the term filed that same were waived; likewise there is no merit in the contention that, defendants having answered to the facts, thereafter they were debarred from raising issues of law on pleadings.

We think the general demurrer was properly sustained.

Affirmed.

On Motion for Rehearing.

In a courteous, though vigorous and forceful, motion for rehearing appellants complain that we failed to pass upon their fifth assignment of error. This assignment is as follows: “The court erred in sustaining the general demurrer and special exceptions because under defendants plea of not guilty plaintiffs were entitled to introduce evidence in rebuttal of defendants claim of a collateral attack on the judgment but said order denies them the right to show from the judgment roll that the judgment in question was not rendered, filed nor entered during the term at which the case was heard and is therefore void.”

The assignment is briefed under proposition No. 7.

The statement under the proposition asserts that M. C. Gann was called as a witness for the trial on April 15, 1935; that this was during the March term of court; that the judgment was entered on the 6th day of May, 1935, during the May term; that all parties rested during the March term, and by agreement the cause was carried over to the May term for adjudication; that the judgment was rendered on the 6th day of May, 1935; that the May term was not extended to complete the trial of the cause.

In verification of the above statement reference is made to Transcript, pages 21 to 22, and 29 to 34. Pages 21 to 22 are a reference to the trial petition of plaintiffs, and in such petition there appears no allegation that the case was tried other than at the May term, as the judgment recites. Referring again to the reference to the Transcript, pages 29 to 34, this is a judgment which is attached to plaintiffs’ petition as an exhibit, and by reference incorporated therein. This judgment does not show that the case was tried at the March term, but shows conclusively that the trial was at the May term. Nowhere in the petition is any agreement averred as to carrying the case over from the March term to the May term. These recitals are, we think, as conclusive on collateral attack as are the recitals as to jurisdiction over the person.

The assignment is overruled.

To advert briefly for the second time as to why we think this petition was subject to general demurrer, had plaintiffs’ allegations been confined to the statements that they had not been served with citation, had not appeared or authorized anyone.to appear for them, under such allegations, we think the judgment would have been prima facie void. Plaintiffs’ petition went further than this, it set forth the judgment assailed. - This judgment shows plaintiffs did appear. In this fact, we think, lies the distinction between the instant case and the case of Bender v. Damon, cited in the original opinion. It does not there appear what the recitals in the judgment assailed were. There is the same distinction as to the case of Graham v. East Texas Land & Improvement Co., Tex.Civ.App., 50 S.W. 579.

We believe there is no conflict between that case and our holding here. Here, plaintiffs’ petition shows the recitals in the judgment assailed; there, it did not.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: WALKER, Chief Justice. COMBS, Justice. WALKER, Chief Justice.

license: Public Domain

text:
    COMMISSIONERS’ COURT OF NACOGDOCHES COUNTY v. WEAVER.
    No. 3657.
    Court of Civil Appeals of Texas. Beaumont.
    May 17, 1940.
    Rehearing Denied June 19, 1940.
    Adams & McAlister, of Nacogdoches, for appellant.

      Seale & Thompson, of Nacogdoches, for appellee.
   WALKER, Chief Justice.

On the 15th day of April, 1939, Hon. C. E. Brazil, judge of the district court of Nacogdoches county, made the following order:

“The State of Texas,
“County of Nacogdoches
“The District Court of Nacogdoches County, Texas. March Term, A. D. 1939.
“On this the 15th day of April, A. D. 1939, came on for consideration the re-appointment of a county auditor for Nacog-doches County, Texas, because of the expiration of the term of the present incumbent on April 16, 1939, The Court after due and careful consideration finds there is a public necessity in the dispatch of the county’s business for a County Auditor for Nacogdoches County, and further finds that the present county auditor, C. E. Weaver, of Nacogdoches County, Texas, has satisfactorily performed the duties of said office during his present term, and that he possesses the qualifications as required by law; therefore the Court reappoints the said C. E. Weaver as County Auditor for Nacogdoches County, for a term of two years, beginning on April 16th, 1939. It is further ordered that the salary of the said C. E. Weaver as county audit- or be paid from the general fund of said County, at the rate of not less than $125.00 per million assessed valuation or major fraction thereof, per year as provided by statute.
“Said appointment effective April 16, 1939.
“C. E. Brazil,
“Judge of the District Court,
Nacogdoches County, Texas.
“Filed: April 18th, 1939.”

This order was made by Judge Brazil after the Commissioners’ Court, on the 14th day of April, 1939, had made and entered on its minutes, and had certified to him, the following order:

“April (Special) Session A. D. 1939 (April 14th, 1939)
“Whereas the office of County Auditor expires April 15th, 1939. Therefore, the necessity of creating the- office came up for discussion and consideration, and the following action was taken by the Commissioners’ Court:
“G. B. Whitaker made a motion that the office of County Auditor be discontinued. The motion was seconded by J. G. Williamson.
“G. B. Whitaker and J. G. Williamson voted ‘Yes.!
“M. D. Coats and Orange Lowery voted ‘No.’
“Jack Varner, County Judge, voted ‘Yes.’
“It is therefore the order and judgment of the Commissioners’ Court that no public necessity exists at this time in the dispatch of the County business and that said office terminate April 15th 1939.
“The County Clerk is instructed to furnish the District Judge. C. E. Brazil, with a certified copy of these proceedings.
“Minutes of Commissioners’ Court, Book L, folio 947.”

At the May term, 1939, the Commissioners’ Court of Nacogdoches county made and entered the following order:

“May (Special) Term A. D. 1939 (May 17th, 1939)
“Motion made by G. B. Whitaker that the salary of C. E. Weaver, not be paid after April 15th, 1939, as the office of County Auditor has been discontinued. The motion was seconded by John G. Williamson. Coats and Lowery voted against the motion — tie broken in favor of motion by County Judge, Jack Varner. The County Clerk and County Treasurer instructed not to sign C. E. Weaver’s salary check.
“Minutes of Commissioners Court, Book L, folio 498.”

On the 12th day of October, 1939, appel-lee, C. E. Weaver, as relator, filed in the district court of Nacogdoches county his petition against appellants, “the Commissioners’ Court of Nacogdoches County, Texas and the constituent members thereof, both in their official capacity and as individuals, which members of said Court Plaintiff alleges to be the following persons, to-wit: Jack Varner, County Judge, M. D. Coats, Commissioner of Precinct No. 1, G. B. Whitaker, Commissioner, Precinct No. 2, J. G. Williamson, Commissioner, Precinct No. 3, and Orange Lowery, Commissioner, Precinct No. 4, all of whom reside in Nacogdoches County, Texas,” as respondents, praying that the district court “issue its most Gracious Writ of Mandamus, commanding the Commissioners’ Court of Nacogdoches County, Texas and the individual members thereof to-wit: Jack Varner, County Judge, M. D. Coats, Commissioner of Precinct No. 1, G. B. Whitaker, Commissioner of Precinct No. 2, J. G. Williamson, Commissioner of Precinct No. 3 and Orange Lowery Commissioner of Precinct No. 4, to record in its Minutes the Order of Judge C. E. Brazil, District Judge of Nacogdoches County, Texas, made on April IS, 1939, as herein before specifically set out, together with an order directing the payment of Auditor’s salary, and for such other and further relief, general and special in law and equity to which he may show himself justly entitled and in duty hound wiill ever pray.” Appellants answered by pleas to the jurisdiction, mis-joinder, nonjoinder, in abatement, general .and special demurrers, general denial; etc. It is sufficient to say of the answer that it supports all assignments of error and propositions advanced by appellants. On .trial to the court without a jury, judgment was entered on the 31st day of October, 1939, in favor of appellee against appellants for the relief prayed for, from which appellants have duly prosecuted their appeal to this court.

We give the following additional facts:

On the 10th day of April, 1935, the following petition was presented to Judge C. E. Brazil, judge of the district court of Nacogdoches county:

“Nacogdoches, Texas
“April 10th 1935
'“To the Honorable Carmen Brazil
“Nacogdoches, Texas.
“Comes now the Commissioners Court of Nacogdoches County and asks your honor ••to appoint Mr. R. C. Tompkins County Auditor for Nacogdoches County. The Commissioners’ Court would show that this office is made necessary by virtue of the fact •that our records in this County need to be ■constantly reviewed and that the financial ■condition of the county will be protected by the services of said officer, and that our business has been made more complicated by the States participation in our road 'bonds and warrants, which an auditor 'would be able to keep.
-“The Court therefore requests your hon- or to make the appointment of Mr. Tomp>kins at the Statutory salary of $125.00 for •each million dollars valuation in the County.
“Clyde Shofner, County Judge.
“G. H. Stone, Commissioner Pre. #1.
“J. B. Wood, Commissioner Pre. #2.
'“-Commissioner Pre. #3.
'“A. J. Waters, Commissioner Pre. #4.”

This petition was' not acted upon officially by the Commissioners’ Court of Nacog-doches county. In fact, it was never presented to the Commissioners’ Court, but was presented to Judge Brazil simply in the form of a letter, signed by the county judge and three of the commissioners. The petition was never recorded in the minutes of the Commissioners’ Court. On the 16th day of April, 1935, Judge Brazil entered the-following order on this petition:

“Nacogdoches, Texas.
“On this 16th day of April 1935 came on to be heard a petition of the Commissioners Court of Nacogdoches County asking for the appointment of R. C. Tompkins as County Auditor for Nacogdoches County and it appearing to the Court that Mr. Tompkins is an accountant with several years experience as required by the Statutes and that there exists a necessity for said auditor, the Court hereby appoints the said R. C. Tompkins as County Auditor for Nacogdoches County.
“C. E. Brazil,
“District Judge 2nd Judicial District.”

This order'of Judge Brazil’s was not recorded in the minutes of the district court, nor of the Commissioners’ Court, and no official action was taken on the petition and order, except as indicated by this statement. Mr. Tompkins qualified under his appointment, served two years, and his salary was regularly paid by Nacogdoches county.

The following order was passed at the April term, 1937, of the Commissioners’ Court:

“It was unanimously voted by the Commissioners’ Court on this the 13th day of April 1937, in regular session, to petition the Honorable District Judge of this County to appoint a County Auditor of Nacogdoches County, Texas, said appointment to be effective April 16th, 1937, the date on which the present County Auditor’s appointment expires; said appointment to be made for two years as provided by Articles ,1645, 1646 and 1647, Revised Civil Statutes of Texas 1925, it being deemed by the Commissioners’ Court that an auditor is a public necessity in the dispatch of the County business.
“Commissioners Court Minutes, Book L, folio 311.”

This order was duly certified to Judge Brazil, and the request of the Commissioners’ Court was granted by Judge Brazil as of the 20th day of April, 1937, by appointing Mr. R. C. Tompkins auditor. Mr. Tompkins qualified in the manner required by law, and entered upon the discharge of his duties as such auditor, and continued in the discharge of his duties until the 1st day of January, 1938, when his resignation became effective. On the 25th day of November, 1937, Judge Brazil, as district judge of Nacogdoches county, appointed appellee, C. E. Weaver, county auditor of Nacogdoches county by the following order:

“November 30th (Called) Session 1937.
“State of Texas
“County of Nacogdoches
“On this 25th day of November, 1937, there came on for consideration the appointment of a county auditor of Nacog-doches County, Texas, to fill the unexpired term of R. C. Tompkins who resigned, effective January 1st, 1938, or earlier in event arrangements could be made with his successor to take over the duties of the office. The application of C. E. Weaver, of Nacogdoches, Texas, but at present of Marshall, Texas, being received along with other applications and it appearing to the Court that Mr. Weaver is an accountant and auditor of several years experience and other wise meets the qualifications set out by law, it further appearing to the Court that there is a necessity for said auditor, the Court hereby appoints the said C. E. Weaver, as County Auditor of Nacogdoches County, Texas, for the unexpired portion of a two year term which began April 16th, 1937 and it is hereby ordered that C. E, Weaver salary as county auditor be paid from the general fund of the county at the rate of not less than $1⅞5.00 per million assessed valuation per year as provided by statute. Said appointment to take effect January 1st, 1938, or at an earlier date if arrangements can be made by the appointee to take over the duties of the present incumbent.
“C. E. Brazil,
“District Judge 2nd Judicial District of Texas.
“Filed November 26th, 1937.”

On this order, Mr. Weaver duly qualified as auditor, and entered upon the discharge of his duties as such.

On the trial, the parties agreed to the following facts:

(a) “By and between the parties herein, through their attorneys of record, that C. E. Weaver, the relator, has never made a specific demand of the Commissioners Court to record in its minutes, the order of Judge C. E. Brazil, District Judge for the 2nd Judicial District of Texas, made on April 15th, A. D. 1939; and has never made any specific demand or request that the Commissioners’ Court enter an order directing payment of his salary; but that he has on numerous occasions requested payment of his salary.

(b) “By and between the parties herein, through their respective attorneys of record, that Nacogdoches County, at the last preseding Federal Census — being for 1930 — had 30,290 inhabitants; and that the tax renditions for 1938 was $11,968,-000.00. It is further agreed that C. E. Brazil, District Judge for the Second Judicial District of Texas, has jurisdiction over Nacogdoches County, and has had since 1935 — April 15, 1935 — and during all times pertinent to the issues involved in this case; and that Jack Varner is County Judge of Nacogdoches County, Texas, duly and legally elected, qualified and acting as such; that M. D. Coats is the duly elected, qualified and acting Commissioner for Precinct No. 1, of Nacog-doches County, Texas; that George Whitaker is the duly elected, qualified and acting Commissioner of Precinct No. 2, of Nacogdoches County, Texas; that J. G. Williamson is the duly elected, qualified and acting Commissioner for Precinct No. 3, of Nacogdoches County, Texas; and that Orange Lowery is the duly elected, qualified and acting Commissioner for Precinct • No. 4, of Nacogdoches County, Texas.”

Opinion.

The issues in this case are controlled by Articles 1645, 1646, and 1647, Vernon’s-Ann.Civ.St. Article 1645 provides for county auditors in all counties with a population of 35,000, or over, according to the preceding Federal census, or with a tax valuation of fifteen million dollars, or over, according to the last approved tax rolls, and fixes the salary of the auditor. We quote as follows from Article 1646:' “When the Commissioners’ Court of a county,' not mentioned and enumerated in the preceding Article shall determine that an auditor is a public necessity in the dispatch of the county business, and shall enter an order upon the Minutes of said' Court fully setting out the reasons and necessity of an auditor, and shall cause said order to be certified to the District Judges having jurisdiction in the county, said Judges shall, if such reason be considered good and sufficient, appoint a County Auditor, as provided in the succeeding Article, who shall qualify and perform all the duties required of County Auditors by the Laws of this State, provided, said Judge shall have the power to discontinue the office of such County Auditor at any time after the expiration of one year when it is clearly shown that such auditor is not a public necessity and his services are not commensurate with his salary received.”

Under the agreement of the parties, given above, Nacogdoches county falls within the quoted provisions of Article 1646. Article 1647 provides the manner of appointment of county auditors, and further: “The action shall then be recorded in the minutes of the district court of the county and the clerk thereof shall certify the same to the commissioners court, which shall cause the same to be recorded in its minutes together with an order directing the payment of the auditor’s salary.”

It is the theory of appellee’s petition that, when a county auditor has been once appointed for a county of the classification of Nacogdoches county, the office of county auditor is created ’ for that county and, having been once created, it can be abolished only by the district judge in the manner provided by Article 1646; that the Commissioners’ Court, having once invoked the jurisdiction of the district judge to appoint a county auditor, has lost all further direction and control of the office, and has no power to discontinue it.

Appellant answers appellee’s theory of the case by the following propositions j (a) The letter of the county judge and three of the commissioners to the district judge of April 10, 1935, did not invoke his power to appoint a county auditor. ' (b) The order of the Commissioners’ Court, passed at the April term, 1937, was insufficient to invoke the power of the district court to appoint a county auditor in that it failed to comply with the following provisions of Article 1646, written in italics: “When the Commissioners’ Court Of a county, not mentioned and enumerated in the preceding Article shall determine that an auditor is a public necessity in the dispatch of the county business, and shall enter an order upon the Minutes of said Court fully setting out the reasons and necessity of an auditor, and shall cause said order to be certified to the District Judges having jurisdiction in the county, said Judges shall, if such reason be considered good and sufficient, appoint a County Auditor.” (c) The request and order of the Commissioners’ Court of April, 1937, upon which Judge Brazil acted on the 20th day of April, 1937, in appointing R. C. Tompkins county auditor, by its express language limited the appointment to two years; and since the Commissioners’ Court had the power, by virtue of Article 1646, to ask the district judge to make the appointment, as a necessary implication it had the power to limit the appointment to be made on its request to two years, (d) The appointment made by the district judge under Article 1646 is, by Articles 1645, 1646, and 1647, limited to two years and, at the expiration of two years, the district judge can not renew the appointment except upon a new request made by the Commissioners’ Court, in the manner provided by Article 1646. ' (e) The Commissioners’ Court, by necessary implication under Article 1646, has the power to discontinue the office of county auditor at the end of two years, which it exercised.

The first point at issue is the construction of Article 1646, as it relates to counties of the classification of Nacog-doches county, on the power of the district judge to appoint a county auditor. This article provides that a district judge may make the appointment on the order of the Commissioners’ Court, entered upon the minutes of the. court and fully setting out the reasons and necessity of an auditor. The letter to Judge Brazil, dated the 10th of April, 1935, was not an order of the Commissioners’ Court, was never acted upon by the Commissioners’ Court, and never entered upon its minutes; it was nothing more than a personal letter from the county judge and three members of the court, in their personal capacity, asking him to appoint an auditor. We think it must be conceded that this letter did not confer jurisdiction — the power — upon Judge Brazil to make the appointment, and, therefore, the order, in connection with the order of appointment, did not create for Nacogdoches county the office of county auditor.

The second point in the construction of Article 1646 relates to the order of the Commissioners’ Court, of date the 13th day of -April, 1937, duly passed by the court, entered upon its minutes, and certified to Judge Brazil in the manner provided by Article 1646. This order did not set out fully the reasons and necessity of an auditor — no reasons and necessity were certified. Clearly, this article means that the Commissioners’ Court shall certify to the judge the facts which, in the judgment of the Commissioners’ Court, require the appointment of an auditor; it was not sufficient that the Commissioners’ Court merely declare that a necessity existed for the appointment of an auditor. It is our conclusion that this provision of Article 1646 was mandatory; that to invoke the jurisdiction —the power — of Judge Brazil to make the appointment, it was necessary that the order set out fully the reasons and necessity for the appointment. The power to appoint an auditor in counties of the classification of Nacogdoches county is limited strictly by the provisions of Article 1646. Ward v. Board of Levee Com’rs of Orleans Levee Dist., 152 La. 158, 92 So. 769. Where the statute is of limited application or creates a limited liability, conditioned upon the existence of certain facts, then “such limitations and conditions must be met by him who seeks to rely upon it.” Wilhelm v. Hersh, Mo.App., 50 S.W.2d 735, 738. In this case appellee’s cause of action — the validity of the order of date the 15th of April, 1939, appointing him auditor — rests upon the validity of the order of the Commissioners’. Court of date the 13th of April, 1937, asking Judge Brazil to make the appointment, for there was no subsequent order by the Commissioners’ Court invoking Judge Brazil’s power to appoint an auditor for Nacogdoches county. For the reason that the order of April 13, 1937, of the Commissioners’ Court wholly failed to meet the requirements of Article 1646, it is our conclusion that it was void, and did not invoke the power of Judge Brazil to make the appointment. It is our further conclusion that the order of Judge Brazil of the 20th of April, 1937, appointing Mr. Tompkins auditor, was absolutely void. It follows on this conclusion that the order of the Commissioners’ Court of the 13th of April, 1937, and the order of appointment of the 20th of April, 1937, did not create for Nacogdoches county the office of county auditor.

But, against this conclusion, the point is made that the attack upon the order made by appellants was collateral; that, since Judge Brazil recognized the validity of the order and made the appointment, he thereby created for Nacogdoches county the office of county auditor. This proposition is denied. If we are correct in our conclusion that the order of the Commissioners’ Court of the 13th of April, 1937, was void, then all .proceedings on authority of that order were absolutely void. It would necessarily follow that the validity of appellee’s appointment by the prder of April 15, 1939, could be questioned anywhere and everywhere that the validity of his office — the office of county auditor — was in issue.

But the attack made by appellant on ap-pellee’s appointment as auditor of Nacog-doches county, by the order of April 15, 1939, was not collateral, but direct. The statutes provide no appeal from the ruling of the district judge on the necessity for the appointment of an auditor, nor from his order making the appointment and directing the payment of the auditor’s salary. His power to act, when that power has been legally invoked, is not subject to judicial review by way of appeal. It is our conclusion that Nacogdoches county resorted to every available remedy, short of litigation, to escape responsibility for appellee’s salary; by the order of the Commissioners’ Court of April 4, 1939, discontinuing the office and by the order of May 17, 1939, refusing to pay appellee’s salary. We know of no other relief available to Nacogdoches county, except to defend this suit. As against these orders of the Commissioners’ Court, appellee brought this suit, pleading the validity of his order of appointment of April 15, 1939. In answer to that petition, every defense was available to appellant, attacking the creation of the office of county auditor and the validity of appellee’s appointment.

Again, the order of appointment was not entitled to the presumptions indulged to support the judgment of a constitutional court in the exercise of its common law jurisdiction. In making the appointment, Judge Brazil was not acting as a judge; the duty was simply extrajudicial, which he chose to execute. Having acted extrajudicially, Article 1646 and the order of the Commissioners’ Court passed on authority of that article constituted his commission to appoint appellee auditor, and no presumptions can be indulged in support of his commission. Of course, his order of appointment was the exercise of a quasi-judicial function. Had the order of the Commissioners’ Court complied with Article 1646, thereby vesting Judge Brazil with the power to make the appointment, we could not inquire into the quantum of proof heard by him in support of his conclusion that “a good and sufficient reason existed for the appointment.” Authorities cited by Mr. Associate Justice Combs of this court in his opinion on rehearing in Kirby Lumber Co. v. Adams, 62 S.W.2d 366, 369.

In support of his judgment, appellee cites an opinion by the attorney general, dated May 5, 1939, which, in its conclusions, supports his construction of Article 1646, that the petition of the Commissioners’ Court and Judge Brazil’s order of appointment on the petition created for Nacogdoches county the office of county auditor. We do not quote this opinion because it is not in point on the facts of this case, as shown by the following fact presumptions upon which it was rendered: “We presume that at the time an Auditor was originally appointed in Nacogdoches County, the Commissioners’ Court entered an Order upon the Minutes of said Court, fully setting out the reasons and necessity for an Auditor, and caused the order to be certified to the District Judge of your county, and that he considered the reasons stated in the Court’s Order to be good and sufficient and did appoint a County Auditor for a term of two years, and that such appointee qualified as provided in Article 1649, Revised Civil Statutes, 1925, by taking the oath of office and making the bond provided for in that Article.” Thus, the attorney general, in rendering his opinion, certifies that he presumed that the auditor was appointed upon order of the Commissioners’ Court “fully setting out the reasons and necessity for an Auditor,” while, in fact, this order set out no reasons and necessity for the appointment of the auditor.

It follows that the judgment of the lower court, granting appellee the relief prayed for in his petition, must be reversed and judgment here rendered in favor of appellants that they go hence without day and recover their costs.

Reversed and rendered.

COMBS, Justice.

I concur in the judgment, not on the grounds stated in the opinion, but on the grounds stated in appellants’ proposition (e) to the effect that the Commissioners’ Court had the right to discontinue the office of county auditor at the end of the auditor’s term of office, which right it duly exercised by its order of April 14, 1939. I see no need of the holding that the appointment was void as held by the majority —which holding I cannot subscribe to.

On Rehearing.

WALKER, Chief Justice.

After handing down our original opinion in this case, we requested the Attorney General, on rehearing, to file an amicus curiae brief on the controlling issues. We made this request because, in our judgment, the construction of Article 1646, R.C.S., Vernon’s Ann.Civ.St. art. 1646, is a matter of great public concern.

The Attorney General has most graciously filed his brief in response to our request, from which we quote:

“Comes now Gerald C. Mann, Attorney General of Texas, and with leave of court so to do, files this his amicus curiae brief herein in reply to appellee’s motion for a rehearing filed in this cause on May 17, 1940, and by way of argument, respectfully submits:
“Proposition
“Appellee’s motion for rehearing should be denied because the judgment of this court heretofore entered, reversing and rendering the judgment of the honorable trial court, under the law and the undisputed facts, is the only judgment that could be properly rendered herein. * * *
“Now, the only way in which the District Judge’s jurisdiction can be invoked with respect to the appointment of an auditor is in the manner pointed out in Article 1646 of the statutes. That manner consists of three essentials, (a) the determination by the Commissioners’ Court that an auditor is a public necessity in the dispatch of the county’s business; (b) the entry of an order fully setting out the reasons and necessity of an auditor; and, (c) presentation of a certified copy of such order of the Commissioners’ Court. Upon the presentation of a showing of these statutory elements of jurisdiction — and not until then — the District Judge has power to consider and determine the matter of an appointment of an auditor, and to appoint such auditor if the reason presented in the order of the Commissioners’ Court be deemed by him to be good and sufficient. The situation is exactly analogous to the presentation of a petition to the District Court to invoke the jurisdiction of the court. It is an indispensable condition precedent to the exercise of jurisdiction.
“This indispensable condition to the invocation of the District Judge’s jurisdiction is entirely wanting in the present case.
“The communication from the County Judge and three of the County Commissioners of April 10, 1935, possesses none of the requirements of the statute as a predicate to invoke the District Judge’s jurisdiction. It is fatally insufficient in the following respects: (a) It is not a determination by the Commissioners’ Court of the necessity for the appointment of an auditor; (b) If the same were a court order instead of the private communication of members of the Commissioners’ Court, it is not a matter of record upon the minutes of the Commissioners’ Court; (c) It does not set out any reason whatsoever showing the necessity for the appointment of an auditor; and (d) It is not a certified copy of an order of the Commissioners’ Court.
“The reasons, if reasons for a legislative act are necessary, are obvious why the action must be initiated by the Commissioners’ Court as a constitutional and statutory governing body of the county, and why the minutes of that court should reflect the appropriate action of that body, and why such proceedings should he certified to the District Judge as authority (jurisdictional and factual) to invoke the jurisdiction to make the appointment of, an auditor.
“The District Judge is authorized (empowered) to act only upon the application of the county containing the elements here-inabove mentioned. He has no other fact or facts from which to determine the necessity of the appointment of an auditor. For him to make an appointment upon such showing as that of 1935 would be purely arbitrary and without the essential prerequisite of hearing evidence of probative value upon which to base his action.
“The resolution of the Commissioners’ Court of date April 13, 1937, to petition the District Judge to appoint a County Auditor for the term effective April 16, 1937, does contain the finding by the Commissioners’ Court ‘that an auditor is a public necessity in the dispatch of the county business.’ This is not enough. It is only a partial compliance with the statute. It is not a substantial compliance. It does not contain the essential finding of a reason or reasons or fact or facts which would show or tend to show to the. District Court the necessity thought by the Commissioners’ Court to exist for the appointment of an auditor.
“It will be seen Article 1646 requires the Commissioners’ Court order duly entered determining ‘that an auditor is a public necessity in the dispatch of the county’s business’, but it is further seen that this requirement is immediately followed by the further requirement ‘and shall enter an order upon the minutes of said court fully setting out the reasons and necessity for an order.’ This latter requirement is the one indispensable requirement to present to the District Judge a jurisdictional basis for his action. Without it he has nothing before him from which he can determine the necessity for the appointment. If the mere fact-conclusion -of the Commissioners’ Court as to the necessity for appointment is all the statute requires, then the action of such court would be final and binding, for such conclusion could not be reviewed by the District Judge in the absence of the evidence upon which the Commissioners’ Court acted.
“The statute clearly contemplates that the judge in determining upon the necessity and advisability of an auditor determines upon ‘such reasons’ as are set forth by the Commissioners’ Court in its resolution. If no reason is set forth in such resolution, then the judge has no basis whatever for his action, and the same is arbitrary and void. * * *
“Wherefore, it is respectfully submitted that appellee’s motion should be overruled.
“Respectfully submitted.
“Gerald C. Mann
“Attorney General of Texas
“Geo. W. Barcus
“(Signed) Ocie Speer,
“Ocie Speer,
“Assistant Attorneys General.”

Appellee’s motion for rehearing is in all things overruled.


author: WALKER, Chief Justice.

text:
    ENER v. GANDY et ux.
    No. 3592
    Court of Civil Appeals of Texas. Beaumont.
    May 31, 1940.
    Rehearing Denied June 12, 1940.
    • Howth, Adams & Hart and L. Maston Meagher, all of Beaumont, for appellant.
    T. Gilbert Adams and J. R. Beck, both of Beaumont, and Synnott & Smith and Adams & Hillin, all of Jasper, for appellees.
   WALKER, Chief Justice.

This was an action by appellant, Mrs. Ruth Ener, against appellees, Mr. P. P. Gandy and his wife, Mrs. Wilma Gandy, jointly and severally, for damages in the sum of $30,200, suffered by her in an automobile collision in Jasper county, wherein her husband, William Ener, and her son, Henry Adolphus Ener, were killed, and she suffered serious personal injuries, and her automobile was greatly damaged. For cause of action appellant alleged: On the 13th day of November, 1936, while appellant and her deceased husband and son were driving towards Beaumont on the Jasper-Beaumont highway at a point just north of Kirbyville, another car belonging to appel-lees, driven in the opposite direction, ran into her car, with the result stated above. At the time of the collision, appellees’ car was being operated by their son, Leon Gandy, and Mrs. Gandy was riding in the car with him. Leon was about 17 years old, and “was operating said automobile at the instance of the defendants herein, or else with their consent, express or implied, and at said time and place performing a family purpose in the operation of said car, and acting as the agent of the defendants herein, acting in the course of his authority or employment and within the scope of his authority and so as to be the authorized agent of said defendants.” Appellant pleaded specially and in detail the several grounds of negligence upon which she predicated her cause of action.

Appellees answered (a) by general demurrer, general denial, and specially that P. P. Gandy was not present in the automobile at the time of the collision; that Leon was not the agent of either of the defendants; that Leon, their son, at the time of the collision was not operating the automobile “in or about any business” of either of the defendants; that the defendants were not responsible for any of the damages suffered by appellant. They answered further that Mrs. P. P. Gandy, at all times material to this litigation, was a married woman, the wife of P. P. Gandy, and that the automobile, at the time of the collision, “was not being used or operated for the benefit of her separate estate,” and that she was in no way responsible for the alleged negligence ; (b) that “said automobile was being operated by defendants’ son; that defendant, P. P. Gandy, had given his consent that the said son might drive Said automobile to a football game and he was operating the same for his own pleasure; that he had allowed certain friends of his to ride with him in said automobile and had solicited his mother, Mrs. P. P. Gandy, to attend said football game with him and his said friends and she had accepted such invitation and was riding with him, she, having nothing to do with the operation which was entirely under the control and management of defendants’ son; that he was using it for a pleasure trip for himself and friends and defendants were in no way interested in the operation thereof, for which reason they are in no way guilty of negligence connected with the operation of said automobile and of this they put themselves upon the country.” (c) Ap-pellees denied negligence on the part of Leon, and plead negligence on the part of the driver of the other car in the collision.

After the conclusion of the evidence, appellant moved the court for permission to file the following trial amendment, which motion was overruled, to which appellant duly excepted: “That at the time of the collision, as set out in said first amended original petition, the said Leon Gandy was driving the family car belonging to the said P. P. Gandy, with the consent of said P. P. Gandy, on a mission involving the moral, intellectual and material wellf'are of the said Leon Gandy, who was the son_ of P. P. Gandy and Mrs. P. P. (Wilma) Gandy as alleged, in which mission or matter the said father and mother (P. P. Gandy and Mrs. P. P. Gandy) had a direct interest. That is to say, that at the time of said collision, the said Leon Gandy was engaged in the mission of conveying or carrying himself, a member of the Hemphill High School football team, as well as conveying his mother, Mrs. P. P. Gandy, either to or from a football game between the Hemphill High School and the Kirbyville High School, in which football game both the said Leon Gandy and the other football players, in said car at the time of the accident, participated as players. That it was a part of the high school activities of the said Leon Gandy to play football for his school and was an activity for which he received credit in his school work; that both the father and mother of the said Leon Gandy consented to and encouraged him in engaging in. the activity of playing football, which sport or course of education involved the moral, intellectual and material welfare of the said Leon Gandy and was an activity in which both his father and mother had a direct interest.” Appellant pleaded further in her trial amendment that, at the time of the collision, Leon Gandy and his mother, Wilma Gandy, were engaged in a joint enterprise in the operation of the automobile, and that Mrs. Gandy was guilty of negligence in failing to give Leon proper instructions in driving the automobile.

The trial was to a jury, and at the conclusion of the evidence judgment was for appellees on an instructed verdict, from which appellant has duly prosecuted her appeal to this court.

For the purposes of this opinion, we shall review appellant’s assignments of. error as if her trial amendment had been duly filed.

Appellant, as her assignments of error, asserts that the evidence raised the following fact issues in support of her pleading: (a) Leon Gandy was acting as the agent of his mother at the time of the collision. (b) Leon Gandy, at the time of the collision, was acting within the course and scope of his authority or employment as agent of P. P. Gandy, (c) Leon Gandy, at the time of the collision, was acting within the course and scope of his authority or employment as agent for Mrs. P. P. (Wilma) Gandy, (d) Leon Gandy, at the time of the collision, was on a mission involving his moral, educational, intellectual or material welfare, and in which matter the father, P. P. Gandy, had a direct interest, (e) Leon Gandy, at the time of the collision, was on a mission involving his moral, educational, intellectual or material welfare, and in which matter the mother, Mrs. P. P. (Wilma) Gandy had a direct interest.

Pretermitting a review of the facts on the issues of negligence pleaded by appellant against Leon Gandy (who was not a party to the suit) which appellees concede was, as to these issues, sufficient to send, them to the jury, the controlling facts of this case may be stated as follows (Q. & A. reduced to narrative) :

Mrs. Wilma Gandy testified:

“My name is Mrs. Wilma Gandy. I am the wife of P. P. Gandy, and one of the defendants in this suit. Leon Gandy is my son; he is now 19 years old and in college at Nacogdoches. In November, 1936, he was a student in the Hemphill High School; at that time he was 17 years old and participated in high school football, being one of the regular players on the team. Playing football was a part of his school work; I can not say that he received credits for participating in football; he played with my permission; he played in the game.on the 13th of November, 1936, with my permission. He went to the game in a Buick car belonging to my husband, P. P. Gandy, the family car; the various members of the family used this car for family business and for personal pleasure. Leon was driving the car at the time of the collision; W. C. Bell, Lloyd Salts, a Kerr boy, a Pinkston boy, and my son Phillip, and I were in the car with Leon. The Bell boy and the Salts boy played in the game that day. The collision with the Ener car occurred about 6:30 o’clock in the evening, on the return trip after the game. The high school did not provide a means for conveying the football players to the out of town games; the folks had to carry the football players; the folks had to furnish the means of transportation back and forth. On certain occasions our son went in a car that did not belong to my husband, on other occasions he took our family car and carried me and other football players to the game. On this particular occasion I had not taken the car to carry the football players; Leon was carrying us; he was driving, but I was in the car ;■ I. don’t know whether I had been anywhere that year.
“ 'Q. Isn’t it a fact during that year that most of the time, at least the times the family car was taken, you were along with Leon? A. Not every time; I didn’t go every time.
“‘Q. Most of the times? Isn’t that true? A. I don’t know. I can’t think of any I had been to. I went to the home games, but I didn’t go a lot with them off. I did not go out with Leon very often when he was driving. On the occasions when we were out together, regardless of what the errand was, he did the driving; Leon was an obedient boy. I used the car any time I wanted to; I could drive.
“ ‘Q. And when you were in the car with him and his father was not along you had the authority to tell him how to drive, that is, to slow down or stop or anything of that pature, did you'not? A. No; I left him to his own driving.
“ ‘Q. But if you were sitting there by him and saw a dangerous situation arise, if you should make any suggestions to him as to what to do he would obey you, would he not? A. I don’t know whether he would or not. I think he had judgment enough.
“ ‘Q. Please answer the question. A. I don’t think I would; No, I don’t think I would say anything to him.’
“On the way back before the accident I didn’t tell him to slow down; I didn’t admonish him not to try to pass any automobile. Mr. Gandy and I both felt that it was to Leon’s benefit to allow him to play football; it was for his pleasure and benefit. I don’t know that Mr. Gandy knew that Leon and I would both be in the car that day; when the boy got the car from his father, he didn’t then know that I would go with him.”

P. P. Gandy testified: “I am one of the defendants in this suit. Leon and Phillip are my sons. The Buick car in the automobile collision with the Ener car belonged to me. Leon had my permission to drive the car on that day; he asked me for the car that morning. I knew he was going to the football game; that he was going to • play football. He was a football player on the Hemphill High School team; he had my permission and sanction to play on the football team. I don’t know that playing on the football team was a part of his school work; they play football and basketball. I don’t know that it was a part of the extra curricula activities of the school; I could not say; I suppose it is. I rode frequently with Leon driving the car; I never did issue any orders to him, because I figured he could take care of the car better than I could.”

Leon Gandy testified:

“My name is Leon Gandy. In November, 1936, I was attending Hemphill High School; and I played on the football team during that year. Playing on the football team was a part of my school work; I got credit in school for playing football. My family, Mr. and Mrs. Gandy, knew that I received credit for playing football. It was agreeable for me to play; it was for my benefit and training in school to play football. In playing football I had to make out of town trips and play out of town games. The school did not provide any means of transportation to football players to these out of town games. We went in cars furnished by our families; just the ones that • would volunteer to take the car.
“ ‘Q. But that was understood by the members of the families of the football players that there was no means of transportation, that the boys would even go themselves or their families would provide the means of transportation to play football? Is that true? A. Yes.’
“After I left Kirbyville on the return trip up to the time of the accident my mother did not at any time request me to slow down; she didn’t ask me not to attempt to pass automobiles going in the same direction we were going.”
Mrs. Turner Ferguson testified: “The high school did not furnish the football players with transportation to the out of town games. I always provided transportation for my son.”

Opinion.

'Appellant’s theory of recovery, on the facts plead in her First Amended Original Petition upon which she went to trial, was based upon the “family purpose doctrine,” which was thus defined by the Supreme Court of Arkansas in Norton v. Hall, 149 Ark. 428, 232 S.W. 934, 935, 19 A.L.R. 384: “The substance of the doctrine is that when the father or other head of a family supplies an automobile for the use and pleasure of the family, permitting the members thereof to use it at will, those members thus using the automobile become the agents of the head of the family, and that each one using it, even for his sole personal pleasure, is carrying out the purpose for which' the automobile is furnished, and is the agent or servant of the head of the family, so that the latter is liable for injuries resulting from negligence, under the doctrine of respondeat superior.” In Trice v. Bridgewater, 125 Tex. 75, 81 S.W.2d 63, 64, 100 A.L.R. 1014, Judge German writing the opinion for the Supreme Court, this definition by the Supreme Court of Arkansas was quoted as a correct definition of-the “family purpose doctrine.” In the Trice-Bridgewater case, our Supreme Court rejected the family purpose doctrine, Judge German saying: “After a most careful consideration of many of the leading authorities and the weight of the argument in support of and against the reasonableness and logic of this doctrine, we have reached the conclusion that as above set out, and under the present state of facts, the doctrine should not be adopted. In other words, we hold that the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person who may be injured by reason of the negligence of his minor son while operating the automobile on the public highway in pursuit of the son’s own purpose and pleasure, notwithstanding the son may have been using the car with the permission of the father.” Weighed by Judge German’s proposition, clearly the evidence' introduced by appellant in support of her first amended original petition did not raise against ap-pellees any issue of liability for the acts of their son Leon.

But in the Trice-Bridgewater case, in explanation of the proposition quoted above repudiating the “family purpose doctrine,” Judge German said: “The question of liability of a father, if any, for negligent acts of his child while driving the family car in furtherance of some particular mission of the father or some business mission which may involve the moral, intellectual, and material welfare of the child or other members of the family, and in which matter the father has a direct interest, is in no manner to be affected by this decision. . The question of liability, if any, in such cases, or in cases where there may be an issue of fact as to the nature of the mission in which the child may be engaged (other than his or her personal ends and pleasure), is left to be determined upon the facts of each particular case.” (Italics ours.) Appellant sought to invoke by her trial amendment these exceptions to the “family purpose doctrine,” on the theory that since Leon received credits on his high school work for playing football, therefore, in driving the car, he was on a mission which involved his “intellectual, and material welfare.” That contention is denied. Clearly, in driving the car at the time of the collision, Leon was “in pursuit” of his “own purpose and pleasure,” within Judge German’s proposition repudiating the “family purpose doctrine,” and it is wholly immaterial that he was driving the car with the permission of his father. The evidence did not raise against appellees that, in driving the car, Leon was their “agent” or “servant” within the following proposition announced by Judge German in the Trice-Bridgewater case: “All courts which have adopted this doctrine have recognized and admitted that fundamentally there must exist — either in fact or by process of judicial reasoning — a relationship of principal and agent or master and servant before there can be any liability.”

Under the proof, it is conceded that Leon was allowed credits for playing football, but there was no proof as to the number of credits allowed, nor the number of games played. The dominant purpose in playing football was for the “personal ends and pleasure” of the football players; that credits were allowed, on the evidence before us, was without probative force on any controlling issue.

The evidence did not raise the issue of joint enterprise between Leon and his mother, nor was any issue raised by the evidence, making P. P. Gandy liable on the theory that his wife was riding in the family automobile at the time of the collision. Under the evidence, Mrs. Gandy was nothing more than a passenger in the automobile, the guest of her son Leon, exercising no more authority over the acts of her son, as the driver, than any other passenger in the automobile.

The Trice-Bridgewater case was cited with approval by the Commission of Appeals, Judge Hickman writing the opinion, in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, and by the Supreme Court, Judge Critz writing the opinion, in Bluth v. Neeson, 127 Tex. 462, 94 S.W.2d 407; it was also cited and followed by the Courts of Civil Appeals in Witt v. Universal Automobile Ins. Co., 116 S.W.2d 1095; Sturtevant v. Pagel, 109 S.W.2d 556, and Fernandez v. Lewis, 92 S.W.2d 305.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: ' MURRAY, Justice.

text:
    DE BOLT v. GONZALEZ.
    No. 10898.
    Court of Civil Appeals of Texas. San Antonio.
    July 3, 1940.
    Rehearing Denied Aug. 28, 1940.
    Sidney P. Chandler, of Corpus Christi, for appellant.
   ' MURRAY, Justice.

This suit was instituted by Manuel Gonzalez against M. F. De Bolt seeking to enjoin him from removing a building from a parcel of land described as all of Lots Nos. Fifteen (IS) and Sixteen (16) and parcel of Lot No. Fourteen (14), in Block No. Fifteen (15), of the Chamberlain Addition to the City of Corpus Christi, Texas ; said property fronting Sixty-eight (68) feet on Agnes Street and extending One Hundred Twenty-eight (128) feet on Thirteenth (13th) Street in said City.

Gonzalez alleged that on or about March 1, 1939, he and De Bolt entered into a lease agreement, which was supplemented on or about March 16, 1939, wherein De Bolt leased from Gonzalez the above described parcel of land. The lease was to continue in full force and effect for a period of five (5) years, beginning on the 1st day of February, 1939, and ending January 31, 1944. The rental was $55 per month. It was also agreed between the parties that improvements placed on the property by De Bolt might be removed by him upon the termination of the lease, provided De Bolt was not in default in his rental payments.

De Bolt erected on the premises a one-story frame building which has been used as a skating rink. Gonzalez alleges that De Bolt is threatening to remove the building from the lot, although the lease contract has not terminated and although De Bolt is two months in arrears with his rental payments.

Gonzalez further alleged that if De Bolt was permitted to remove the building from his lot that he would suffer irreparable damages and asked for both a temporary and permanent injunction.

De Bolt answered and alleged, among other things, that Gonzalez had breached the lease contract by ousting him from a part of the leased premises, thus giving him a right to terminate the lease and remove the building.

The trial court after hearing evidence granted a temporary injunction and De Bolt has prosecuted this appeal.

The question of whether or not appellant had been ousted from a part of the leased premises depends upon whether or not measurements were to begin at a stake supposed to be the North-east corner of Lot 16, above described, or whether measurement should be made from the curb. In a prior lease the land had been described as follows, to-wit: "The same being Lots Nos. 15 and 16, also sixteen feet of Lot 14, in Block 15, of the Chamberlain Addition, 8 feet of Lot 14 to be used for egress and ingress, an Addition to the City of Corpus Christi, Nueces County, Texas, the said property being situated at the corner of Agnes and 13th Streets, and fronting 60 feet on Agnes Street, and running back to an alley.” This lease was executed on January 14, 1937.

The lease involved herein was executed on March 1, 1939, and described the lánd as follows, to-wit: “The same being Lots No. 15 and 16, and parcel of Lot 14, in Block No. 15, of the Chamberlain Addition to the City of Corpus Christi, Texas; the said property fronting 68 feet on Agnes Street and extending 128 feet on 12th Street.”

There is nothing to indicate as to why the description was changed in the second lease and it may be presumed that the two descriptions were intended to describe the same parcel of land. When the two descriptions are considered together, it becomes apparent that the lease was-intended to cover all of Lots 15 and 16, and sixteen feet out of Lot 14 of said Block 15, and that it was not intended that De Bolt was leasing a part of the street lying between the edge of the property and the curb. In Perry v. Ball, 52 Tex.Civ.App. 132, 113 S.W. 588, 591, the court said: ""It therefore devolved upon the appellant to show that the boundaries of her property were not in conflict with the public streets of the city. The appellant began her ownership and possession in 1897, and Tier deed, which was offered in evidence "by the appellees, described the property as follows: ‘All that certain lot, tract or parcel of land, situated in the county of Bowie, and state of Texas, described as follows, to wit: Lots One, Two, & Three, Ten, Eleven & Twelve, in Block No. Ninety Eight, as laid down, on the map or plat of the city of Texarkana, Texas, said lots fronting 150 ft. on Spruce St., 150 ft., on Oak St., and bounded on the North by 10th St.’ From this it appears that her property had been platted and mapped, and-that the streets in controversy had been designated on the map and plat, even if they had not been actually'laid out on the ground. In determining the boundaries of the appellant’s purchase, recourse must be had to the plats as shown on the recognized map of the city. While the maps used in the trial in the court below have been brought to d's in a very unsatisfactory condition, and without sufficient identification to. enable- ús to consider them, if any question should be raised, we have taken the pains to carefully examine them. All of the maps referred to in the oral argument before us by the attorneys for both parties are now before us. Those which show the platting of the block in coiitroversy show also Tenth street to be 60 feet in width and Oak street tó be 80 feet in width, or at least they show that both of those streets were - of uniform width for their entire length, and the testimony of witnesses is to the effect that they were 60 and 80 feet in width. It is immaterial that- those under whom appellant claims may have owned the land upon which the streets were located, and that their deeds fail to show any allowance for streets. If the appellant, after the opening of Tenth and Oak streets for the full width claimed by the city, has all of the land to which she.is entitled under her deeds, clearly she is not entitled to any relief. If her fences and houses at the time of opening those streets extended beyond her lines and into the streets or the grounds that were platted for streets, then the city has the right to affirmative relief against such intrusion.”

It, is clear from the maps and other evidence that Lots 14, .15, and 16 border on the street, but that no part of them lies in the street. We override the contention that the measurement should be made from the curb.

On June 9, 1939, attorneys for appellee wrote the following letter to appellant, to-wit:

“June 9, 1939
“Mr. M. F. De Bolt
“1501 Agnes Street
“Corpus Christi, Texas
“Dear Mr. De Bolt:
“We have been advised by Mr. Gonzalez that you are now occupying and making use of more land than is given to. you by your lease. We believe that your lease specifically sets out the premises that you have leaséd, and they are specifically described by metes and bounds. We did this to avoid any further controversy between you and Mr. Gonzalez. Now Mr. Gonzalez informs us that you are insisting on using some of the land that is not covered by your lease to park a trailer, etc.
“We are, therefore, requesting you .to withdraw your trailer from the grounds not covered by your lease, and that you further desist from making use, or attempting to make use, of any other land belonging to Mr. Gonzalez, and not covered by your lease with him; unless you remove your trailer from Mr. Gonzalez’ premises immediately upon receipt of this letter, we will be forced to file proper civil proceedings to have it removed.
“Trusting that it will not be necessary to take legal steps to remove said trailer, we remain
“Very truly yours,”
DeBolt replied to this letter, through his attorney, by letter written June 23, 1939, reading as follows:
“June 23, 1939
“Gentlemen:
“Your letter to Mr. M. F. DeBolt, with reference to claims of Mr. Gonzalez, has been handed to me for reply.
“We are satisfied that Mr. DeBolt is using land that was leased to him and no more. If you will have the property measured, you will find that the 128 feet leased to Mr. DeBolt includes the land he has his automobile trailer stationed on.
“Your client has already breached this lease contract by his' demanding possession of the property occupied, and we hope that he will cease his harassing and will not further breach the contract. If he continues this conduct, it may be necessary for Mr. DeBolt to prosecute a proceeding for damages by reason of the conduct of Mr. Gonzalez in connection with the fulfillment of the contract.
“Yours very truly,”

Gonzalez testified that he was not willing for De Bolt to have the ten feet of land south of his building nor the use of the alley west of the skating rink. There can be no question but what this land was included in the premises leased to De Bolt, and it was a substantial breach of the lease contract for Gonzalez to deny to De Bolt the use of this land. Nabors v. Johnson, Tex.Civ.App., 51 S.W.2d 1081; Ellison v. Charbonneau, Tex.Civ.App., 101 S.W.2d 310.

Appellee will not be permitted to enforce a contract by the equitable remedy of injunction when he has been the first to breach that contract. Sanders v. Cauley, 52 Tex.Civ.App. 261, 113 S.W. 560; Carpenter v. Southern Properties, Inc., Tex.Civ.App., 299 S.W. 440; Magnolia Petroleum Co. v. Edgar, Tex.Civ.App., 62 S.W.2d 359; Langdon v. Progressive Laundry, etc., Co., Tex.Civ.App., 105 S.W.2d 346; Roberts v. Lovejoy, 25 Tex.Supp. 437; American Fidelity & Casualty Co. v. Williams, Tex.Civ.App., 34 S.W.2d 396; Kilgore v. Northwest Texas Baptist, 90 Tex. 139, 37 S.W. 598.

Appellant did not waive his right to terminate the lease contract by continuing to occupy the premises and to pay rent where the breach continued to the time of the trial, and where appellee testified upon the trial that he would not then let appellant have the strips of land previously denied to him, even if such strips of land were included in the lease. Haddaway v. Smith, Tex.Civ.App., 277 S.W. 728; Goodhue v. Hawkins, Tex.Civ.App., 133 S.W. 288, 289.

The order of the trial court granting the temporary injunction will be reversed and the cause remanded at the cost of appellee.