author: McCLENDON, Chief Justice.

text:
    ALLEN et al. v. GULF OIL CORPORATION.
    No. 8852.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1940.
    Rehearings Denied April 17, 1940.

      Thomas Y. Banks of San Antonio, for appellant W. L. Allen.
    Gerald C. Mann, Atty. Gen., and James P. Hart and Edgar Cale, Asst. Attys. Gen., for appellants Railroad Commission and others.
    John E. Green, Jr., and Joe S. Brown, both of Houston, and Stanley Hornsby, of Austin, for appellee.
   McCLENDON, Chief Justice.

Rule 37 case. The appeal is by Allen, the permittee, and the Railroad Commission from a final judgment setting aside an order of the Commission granting a permit to drill a third well'upon a 2.77-acre tract ip the East Texas Oil Field, “to prevent confiscation of property,” and perpetually enjoining production from the well drilled-thereunder; the judgment providing that it is “without prejudice to the right of the defendant, W. L. Allen, to take such proceedings before the Railroad Commission .as conditions arising after the time the permit herein cancelled was granted may warrant.”

We quote this provision of the judgment for the reason that Allen contends that since it perpetually enjoins him from production from the well, it precludes-further application to the Commission based upon subsequent changed conditions which would warrant granting a permit. The contingency authorizing such subsequent permit is thus expressly provided for in the judgment. But even in the absence of this express provision, the same effect would Be given -the judgment. The paramount purpose of the suit was to set side the permit upon the alleged non-existence of facts at the time it was granted warranting such granting. The injunction against production from the granted well was merely an essential enforcement remedy ancillary to-the judgment annulling the order.

The suit was tried after the decision in the Century case (Railroad Com. v. Magnolia Pet. Co., 130 Tex. 484, 109 S.W.2d 967) and its interpretation by this court in Gulf Oil Corp. v. Wood, Tex.Civ.App., 120 S.W.2d 543, error dismissed, and before the decisions in the Atlantic case (Gulf Land Co. v. Atlantic Ref. Co., Tex.Sup., 131 S. W.2d 73), and in Railroad Com. v. Gulf Prod. Co., Tex.Sup., 132 S.W.2d 254, and those of this court in Ward Oil Co. v. Overton Ref. Co., 131 S.W.2d 700; Shell Pet. Corp. v. R. R. Com., 133 S.W.2d 194, error refused, and Shell Pet. Corp. v. Railroad, Tex.Civ.App., 137 S.W.2d 797. For that reason, no doubt, both the question of confiscation and that of waste were developed. The evidence shows that the 2.77 acre tract was a part of a 3.11 acre lease upon which three wells had been granted. Thereafter, a tract containing .34- acre upon which one of the wells was located was alienated by Allen, leaving in him the remainder of the' tract, containing 2.77 acres upon which were the remaining two -wells. It was upon this' 2:77-acre. tract, that permit was granted to (frill a; third well — that in question.

The evidence conclusively shows that the' two wells on the 2.77 acres and the three wells on the 3.11 acres were amply sufficient to protect the ^owners of'those tracts in their right do recover their fair share of the recoverable oil in place under those tracts; and therefore confiscation was conclusively negatived.

While not expressly so, this is practically conceded by appellants. They seek, however, to support the permit upon the prevention of waste theory. The trial court manifestly annulled the permit upon both the confiscation and waste theories. There is a,mass of testimony upon the latter; but since the permit was granted only “to prevent confiscation of property,’’ the waste theory is eliminated, and we pretermit its discussion. Atlantic case, Railroad Com. v. Gulf Prod. Co., Ward Oil Co. v. Overton Ref. Co., and Shell cases, above.

By cross-assignment appellee urges error of the trial court in an order granting a supersedeas and in overruling a motion to set aside that order. The order recites that it was- granted in open court upon motion to fix the amount of a supersedeas bond. The motion to set aside the order asserted that the order was oral, and granted ex parte, and that the effect of the supersedeas will be to injure appellee irreparably, the bond affording no protection against such injury; and offered to submit proof of these assertions. ..

The cross-assignment is predicated upon the proposition that the proceeding (a statutory appeal from an order of an administrative board) is not a civil suit, and therefore is governed exclusively by the authorizing statute. Vernon’s Tex. Civ.Ann., Art; 6049c, Sec. 11. The question is clearly ruled by the decision in Magnolia Pet. Co. v. Clendon, 123 Tex. 10, 65 S.W.2d 484, unless, as asserted by appellee, the amendment to that section passed in 1935 (44th Leg.Reg.Sess., p. 74, Ch. 28, § 2) denied the.theretofore existing right to a supersedeas. The original Art. 6049c, Sec. 11, was passed in 1931, Gen.Laws 42nd Leg., 1st C.S., Chap. 26, p. 46, § 11, and was in effect in 1933, when the Magnolia case was decided. We. have carefully examined both the original act of 1931 and the amendment of 1935,' and find nothing in either which expressly or by implication either grants or denies the fight of supersedeas." This right was predicated in the Magnolia case upon Arts. 2249, 2270, 2275, Rev.St.1925, and the decisions in Houthchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103, and Yett v. Cook, 115 Tex. 175, 268 S.W. 715. We find nothing in the amendment of 1935 which would authorize a construction in the respect in question other than that given the original act of 1931 in the Magnolia case.

Appellee cites in this connection the holding of the Fort Worth court in Mayhew v. Power, Tex.Civ.App., 104 S.W.2d 642, 644, Justice Speer writing. That was an original mandamus proceeding to require the district judge to fix the amount of a super-sedeas bond in an appeal from a final judgment refusing to set aside, an order of the Liquor Control-Board cancelling a permit to sell beer-, and-wine. .The right to supersede-the'.judgment was denied upon what we regard-as a proper construction of Vernon’s Ahn.P.C. Arts. 666 — 12 and 666 — 14. The former contains the following: “In the event of resort to any -Court from an order of cancellation or suspension in whatever, form-the proceedings may be brought, it shall in no wise act as a supersedeas of the order, of cancellation or suspension. The permit so cancelled or suspended shall stand cancelled or suspended pending the final disposition-of the proceedings as here.-inaf ter. conditioned.”

The latter provides: “And in- the event of any person being aggrieved by any decision, rule, or order of the Board, such person shall have the right of an appeal therefrom to the District Court of the County in which a decision, .rule, or-order in such case would become effective, said suit to be against the Board alone as defendant, and such suit-. shall -.be tried de novo, and be governed by the same rules as other suits in said Court., and. during the pendency of such suit the order of the Board may be suspended by interlocutory order of the Court pending' a hearing on the merits.”

More apt language could hardly be employed to express the thought that orders of the Liquor Control Board cancelling or suspending dealer’s permits were to be effective when made and could be suspended only by and to the extent of an interlocutory court order “pending a hearing on the merits in that court.” (Italics supplied.)

We overrule the cross assignment.

The Commission in a supplemental brief assigns error “because the court did not require the plaintiff to execute a bond as required by” Sec. 10 of Art. 6049c. This: point was not urged in the court below or in the original brief in this court, and can only be considered from the viewpoint of fundamental error.

If it be conceded, arguendo, that the invoked requirement has application to final judgments cancelling permits to drill under the exception to Rule 37 “to prevent confiscation of property,” we overrule the assignment upon two grounds: (1) having made no request to the trial court for an order requiring the bond, but, on the contrary, having elected to supersede the judgment in its entirety, thus suspending the operation of the injunction until the final disposition of the case on appeal, Allen waived whatever rights he may have had to require the bond; (2) the injunctive feature'Of the judgment having been superseded both by Allen and the Commission, the' error (if error) in not requiring the' bond was harmless.

Since this point is also raised in the Spear case this day decided, Spear v. Humble Oil Refining Co., Tex.Civ.App., 139 S.W.2d 212, and will no doubt be raised in other Rule 37 cases hereafter, the writer deems it not inappropriate to express his views upon a 'proper construction of this statute in this regard, although the - above holding disposes of the question as it a.ffects this. case.

Chapter 28 of the General Laws of 4935, which amended sections 10 and 11 of Art. 6049c, Vernon’s Ann.Civ.St., was passed at a time when hot oil was sought to be moved beyond the jurisdiction of the Texas courts, first under ex parte temporary injunctions, and later under ex parte temporary restraining orders. The lafter were then thought, no doubt, to be nonappealable. See the eight cases decided by this court in 80 S.W.2d pages 494-512. Railroad Commission v. Real, Tex.Civ.App., 80 S.W.2d 494; Railroad Commission v. Burnham, Tex.Civ.App., 80 S.W.2d 496; Railroad Commission v. Tyler Texas Oil Co., Tex.Civ.App., 80 S.W.2d 500; Railroad Commission v. Linzie Refining Co., Tex.Civ.App., 80 S.W.2d 504; Railroad Commission v. Archer, Tex.Civ.App., 80 S.W.2d 506; Railroad Commission v. Bradshaw, Tex.Civ.App., 80 S.W.2d 508; Railroad Commission v. Primrose Petroleum Co., Tex.Civ.App., 80 S.W.2d 509; Railroad Commission v. Phoenix Refining Co., Tex.Civ.App., 80 S.W.2d 510.

The primary object of the amendment was to put a stop to these abuses, as will appear from' the emergency clause of the act, Acts 1935, c. 28, § 4, which reads: “The fact that the agencies charged by law with the duty of enforcing the conservation laws of this State have been hampered by the issuance of temporary orders restraining them in the performance of their duty and in the enforcement of their orders without being accorded notice and hearing before such injunctions have been issued, and the fact that the effect of many such restraining orders has been to dispose of the subject matter of such suits prior to a determination on the merits of the matters presented by the litigation, and the fact that the public welfare requires that there be a speedy remedy to prevent the non-observance of the requirements of the statutes with reference to notice and hearing in such matters, create án emergency, etc.”

It is to be noted that Sec. 11 expressly gives the right of appeal from temporary restraining orders as .well as other chár-acters of injunctions; and authorizes the Courts of Civil Appeals and the judges thereof to “issue writs of prohibition, mandamus, and injunction to prevent the enforcement of. any order or judgment of any trial court or judge granting any character of injunctive relief without notice and hearing in violation of the requirements of Section 10, Chapter 26, Acts of the First Called Session of the Forty-second Legislature, as amended by this Act.’’ (Italics supplied in this and subsequent quotations.)

Sec. 10 is quite long and it. is not believed necessary to quote it in full. An analysis of its provisions will, it is thought suffice.

The first clause relates to the subject of notice to the. Commission and hearing which are expressly required as a condition precedent to any injunction “whether temporary restraining order, temporary injunction, permanent injunction, or other character of injunctive relief.” The second clause makes rules, regulations and orders of the Commission prima facie valid. The remaining provisions of the section relate to the bond and require that “before any order granting any character of in-junctive relief against any such statute or against any such rule, regulation, or order of the Commission shall become effective the plaintiff shall be required by the court to execute a bond * * * reasonably sufficient to indemnify all persons when [whom] the court may find from the facts proven will suffer damages by reason of the .violation of the statute, rule, regulation, or order complained of, such persons to be named in the order of the judge when the amount of the bond is fixed by the court and entered of record.” The remaining portions of the section relate to the considerations affecting amount of the bond and authority of all persons named in the order to sue thereon; and give to all parties interested in the subject matter of the suit the right to intervene.

It is significant that the provisions of Sec. 10 relating to notice and hearing expressly include “permanent injunction,” and those of Sec. 11, relating to the same subject, use the expression “order or judgment of any trial cotirt or judge [thereof]”; whereas, the provisions of Sec. 10 relating to the bond are confined to “any order granting any character of injunctive relief, ’’ omitting altogether the expressions “permanent injunction” and “judgment” used in the above-quoted provisions relating to notice and hearing. There is a clear legal distinction between an “order” granting injunctive relief and a “judgment” granting a perpetual injunction. The former is merely interlocutory, preserving the status quo or protecting the rights of litigants pending decision on the merits; whereas, the latter is a final adjudication of the rights of the parties, subject only to the right of appeal pending which full protection to the rights of the party affected by the permanent injunction is secured by the right to supersede. The legislature is charged with knowledge of the legal meaning of these terms; and in this instance manifestly used them advisedly in the manner in which they were employed in the two situations—that of notice and hearing on the one hand, and that of bond on the other.

Moreover, this act was passed with reference, generally, to aid enforcement of the gas and oil conservation laws, and the bond provisions were for the protection of all persons who might be injuriously affected by suspending the operation of conservation statutes and the rules, regulations and orders of the Commission made pursuant thereto, whether they be parties to the litigation or not. The bond was to be in an amount sufficient to protect all parties who the court should find “from the facts proved” might be injured by such suspension. It is further to be noted that the injunctive “order” was not conditioned upon the execution of the bond, but only its effectiveness. The bond provision was clearly enacted to prevent suspension of statutes and Commission rules, regulations and orders affecting conservation pending final determination of their validity without ample protection to everyone who might be injured by such suspension. It seems clear to the writer that the bond provision was not intended to apply to final judgments setting aside orders of the Commission. All interested parties were given the right to intervene, and the rights of all parties litigant pending appeal were amply protected by the right to supersede.

There is another view of the subject which has peculiar application to the case at bar. As already observed the perpetual injunction was merely an enforcement remedy. The main object of the suit was to annul the order granting the permit. The bond provision could have no reference to that portion of the judgment in any event. Unless superseded, it was effective from its date as an annulment of the order, and production from the well would be illegal and in violation of the judgment, regardless of whether there had been any permanent injunction or whether the permanent injunction were ineffective until bond were given.

The trial court’s judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    SPEAR et al. v. HUMBLE OIL & REFINING CO.
    No. 8958.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1940.
    Rehearings Denied April 17, 1940.
    . Gerald C. Mann, Atty.' Gen., and Edgar Cale,'Asst-. Átty. Gen., for appellant Railroad Commission.
    Felts,' Wheeler & Wheeler, -of Austin, for appellant Angus B. Spear.
    ' R. E. Seagler and H. E. Bell, both of Houston, and Powell, Wirtz, Rauhut .&■ Gideon, of Austin, for appellee. ■ .
   BLAIR, Justice.

This is á Rule 37 case. It involves the validity of the special permit to drill well No. 2 on a 1-ácre tract of land out of the Mary ' Van Winkle Survey, Gregg' County,'in the East'Texas-'Oil Field. The permit to drill the second well on the 1-acre tract was granted appellant, Angus B. Spear, the lessee of the oil and gas estate in the land, as an exception to the general spacing distances prescribed by Rule 37, on the recited ground that the second well was necessary “to prevent confiscation” of his property. Appellee, Humble Oil & Refining Company, filed this proceeding, attacking the validity of the permit on the usual grounds raised in the numerous Rule 37 cases which have come before this court, and being in substance as follows:

1. That the second well on the 1-acre tract was not necessary to prevent confiscation of appellant’s property because well No. 1 gave the tract a drainage advantage over the surrounding arca and adjoining lands and was already drilled to a greater density and had a higher allowable production per day per acre than the adjacent area.

2. That well No. 1 on the 1-acre tract will'produce during the life of the oil field in excess of the reasonable amount of-oil underlying it.

At the conclusion of the evidence' the trial court instructed a verdict for ap-pellee, and rendered, judgment thereon declaring the permit to drill said well No. 2 to be void, and perpetually enjoined appellant from further drilling or attempting tó drill the well and from further operating, producing or attempting tó 'produce oil and/or gas therefrom. From which action of the court appellant and the Railroad. Commission have appealed.

' Appellants raise as fundamental error the failure of the trial court to require the-appellee to execute the bond required by the provisions of Art. 6049c, R.S.1925, as amended by Acts 1935, 44th Leg.,- p. 74, Chap. 28, Sec. 1,- Vernon’s Ann.Civ.St. art. 6049c, the. material portion of which reads as follows: • “⅜ * * provided further,' that before any order granting any character of injunctive relief against any such statute or against .any such rule, regulation, or order- of the Commission shall become effective the. plaintiff shall be.-required-by the court to execute-a bond with good'and sufficient sureties in an-amount to be fixed by the court reasonably sufficient to indemnify all persons when [.whom] .the court -may find from the facts proven will suffer damages by reason of the violation of the statute, rule, regulation, -or order complained of, such person to be named in the order of the -judge when the. amount of the bond is .fixed .by the.court and entered of record; provided- further, that the finding of-the court that any party is ..likely to suffer damage shall not be admissible as evidence of damages in any suit on such bond. In determining the amount of such bond -it shall be the duty of the judge to take .into consideration all of the facts and circumstances surrounding the parties and the ability pf the plaintiff to make such bond in order to determine the amount and the reasonableness thereof under the facts and circumstances. Any bond made or executed by any bonding or surety company shall be by some company authorized to do business in Texas. Such bond shall be made payable and approved by the judge of said court and shall be for the use and benefit of and may be sued upon by all persons named in said order who-may suffer damages by reason of the violation of. such statute, rule, regulation or order. Upon motion and for good cause shown, the court, after notice to the parties, may from time to time increase or decrease the amount -of such bond, and may- add new beneficiaries, and may require new or additional sureties as the -facts may justify.”

- This contention of appellant .has been overruled by the majority view of this court on this day upon the same grounds herein urged, in the case of Allen v. Gulf Oil Corporation, 139 S.W.2d 207, to which reference is here made.

It is the writer’s view that Art. 6049c, s'uprá, provides the only method for review' of an’ order of the Commission granting a permit tó drill an oil well, and-such action “is a special * * * action to enforce a right whicff exists only by statute.’,’ Gulf Land Co. v. Atlantic Ref. Co., Tex.Sup., 131 S.W.2d 73, 82. Therefore, one seeking to exercise this statutory right must -reasonably comply with .this. statute. And since the statute' specifically requires the trial court to hold'a hearing and to fix a bond before it can . grant. “any character of injunctive relief,” an order granting injunctive, relief without compliance with this statute is void-';, and the order granting the injunction should be set aside and the injunction be dissolved.

• The ■ writer does n.ot agree with' the. limited scope of construction which..th'e majority view imposes .upon the statute commanding the trial court to require a bond “before, any .order granting any character of ..injunctive' relief” shalj'be effective.

• Neither :the caption . nor " the emergency clause limits, the power to g-ra^t injunc-tive. relief only.-in cases where, notice has not been given to the Commission; but to the contrary both use broad and comprehensive language and show that the legislature intended to require the bond before “any character of injunctive relief” shall be issued against any statute, rule, regulation, or order of the Railroad Commission relating to oil and gas matters, or at least before such injunctive relief shall become effective. It is a matter of common knowledge that all sorts of injunctive relief was being granted against the conservation statutes, and the rules, regulations and orders promulgated and issued - thereunder by the Commission, with and without notice, at the time the legislature passed the broad and comprehensive statute in question, which specifically declared that all such statutes, rules, regulations and orders to be prima facie valid. The mere fact that Courts of Civil Appeals, or the judges thereof, are given power to issue writs of prohibition, etc., against a trial judge granting any such injunctive relief only where issued against the Commission without notice, is manifestly only one purpose of the statute; and such provision has no relation to the provisions of the statute commanding the trial court to require a bond before he shall issue “any character of injunctive relief.” And the language, “any character of injunctive relief”, refutes any suggestion that the bond was only required in cases where temporary restraining orders or injunctions are issued.

Nor does the fact that one may supersede the injunctive order have anything to do with the construction of the statute. The supersedeas is for the benefit of the party in whose favor the injunctive relief has been granted; whereas, the provisions of this statute are for the benefit of the party against whom the injunction has been granted, and who holds a prima facie valid order of the Commission.

Nor does any language of the statute justify the minute or hairsplitting legal distinction between an “order” granting “any character of injunctive relief” and a “judgment” granting “any character of injunc-tive relief.” Manifestly, the statute uses the word “order” and the word “judgment” interchangeably. And to attribute to the legislature the knowledge or the presumption that it was making such minute or hairsplitting legal distinction between an injunction issued on an “order” and one issued on a “judgment” is indeed too great a strain upon credulity. And particularly is this so as to the instant statute, which clearly shows the intention of the legislature to use the words “order” or “judgment” interchangeably. The declared purpose of the statute is to inhibit the granting by a trial judge of “any character of in-junctive relief” either by “order” or “judgment,” without requiring the bond to be filed, and the injunctive relief granted without the bond should under express, provisions of the statute not “become effective” until the bond is filed. This dissent applies to the instant case and also to the Allen case, supra.

The injunctive relief granted is merely incidental to the enforcement of the judgment cancelling and annulling the order of the Railroad Commission granting the permit to drill the well in question, the validity of which is the subject matter of this suit,, and we pass to a consideration of the attacks made upon the judgment cancelling- and annulling the permit to drill the well.

The permit to drill the well was granted by the Commission upon the sole ground “to prevent confiscation of property” and. under that exception to the general spacing provisions of Rule 37. Under the majority view, this issue is controlled by the-recent decision of the Supreme Court in. the Gulf Land Company case, supra.

Appellant first contends that the trial court erred in instructing a verdict for appellee because the undisputed proof showed that the 1-acre tract in question-, was composed of approximately a ⅝-acre tract deeded by appellant Spear to Herbert Ector in 1920, and approximately a %-acre tract, of which Spear is the fee owner;, that well No. 2 is located on a ⅜-acre-tract which has no well on it, well No. 1 having been granted and drilled on the-⅝-acre-Ector tract; and that appellee did. not by pleadings nor proof negative the-fact that the ⅜-acre tract had not been, segregated from a larger tract susceptible-of being developed as a whole, subsequent to the discovery of oil in the East Texas-. Field, and that such larger tract, including-the segregated tract and when considered as a part of the larger tract, did not need, the additional well to prevent confiscation, of appellant’s property. This proposition, cannot be sustained for two reasons. In. the first place, the Commission never passed-upon whether the ⅜-acre tract was entitled-: to be developed separately from the ⅜-acre-tract; and in consequence the courts áre-without power to pass upon the question.. Gulf Land Company, supra. The evidence shows that the ⅝-acre tract was deeded in fee to Ector by Spear in 1920, and that the field notes to it did not close. Spear and Ector joined in the execution of a mineral lease on the two tracts in 1931, describing the land as “one acre, more or less.” The lease was thereafter assigned in undivided interests until finally on February 19, 1934, all the undivided interests had been assigned to appellant Spear. Thereafter, on May 28, 1935, Spear filed his first application for a permit to drill well No. 2 on “Lease Ector,” containing “number of acres, 1,” and the plat accompanying the application showed the tract to be one entire tract of 1 acre. This application was refused, and in June or July, 1937, was again renewed, but again refused; and the order denying the permit referred to it as well No. 2 on Ector 1-acre. To the same effect is the application and plat filed on December 20, 1937. The last application' filed by Spear was in July, 1938, and applied for a permit to drill well No. 2, “fee owner, Ector,” “number of acres, 1 plus,”, and the accompanying plat showed it to be an entire tract of one acre which plat had designated thereon, “Angus B. Spear-Ls.— Ector 1 acre.” The notice of the hearing on this application designated the tract likewise; and there is nothing in the record to show that .Spear in his application before the Commission ever claimed to own the fee title in the west ⅜-acre tract, or that the 1-acre on which the application was made was not a part of the entire tract; and the Commission’s order granting the permit referred to the well as well No. 2 on the Ector 1-acre tract. Thus it clearly appears that the Commission passed upon the application as a 1-acre tract considered in its entirety and not as being owned separately by Spear and Ector in undivided fee interests; and under the decision in Gulf Land Company case, supra, the courts are not permitted to pass upon a fact question which the Commission itself has not passed upon, because to do so would simply substitute the courts for the Commission.

In the second place, and under the facts above stated, Spear clearly waived his rights, if any he had, to have the ⅜-acre tract which he owned in fee developed as a separate unit from the ⅝-acre tract; or to have it developed ás a part of the adjoining 93-acre tract which Spear owned; or as a separate tract segregated from-that tract prior to the discovery of oil in the East Texas field. Ida Richey et al. v. Shell Pet. Corp., Tex.Civ.App., 128 S.W.2d 898.

Under the rule announced in the Gulf Land Company case, supra, the evidence showed as a matter of law that well No. 2 on the 1-acre tract was not necessary to prevent confiscation of property; but to the contrary showed as a matter of law that the one well on the 1-acre Ector lease was sufficient to recover the oil underlying the lease as to the date of the trial, and in the future, if no changed conditions occurred in that area.

On the trial of the case numerous exhibits , were offered by appellee, consisting of various oil and gas leases, deeds, assignments, transcript of Railroad Commission files, certain maps and plats showing the area in question with the location of the two wells on the Spear tract, and the location of wells- on the adjacent tracts. In addition, several witnesses, expert engineers, geologists, and petroleum engineers, testified with regard to the number of wells in the area, the drainage from said wells and from the 1-acre tract, and other evidence pertinent to the issue as to whether appellant with the one well on the Ector tract had a fair opportunity to recover all of the recoverable oil lying underneath the tract.

The substance of the testimony of the experts both for- appellant 'and appellee is that the l-acre tract has a drainage advantage over adjacent lands; that the well in question is not an offset well; and that the 1-acre lease with one well has a density .and allowable per acre of more than 2 to 1 over each adjacent lease, except the one to the north." That it has an advantage over a surrounding eight times area extending equidistant from the Spear lease, and a 3 to 1 density and allowable per acre advantage over the average adjacent leases covering,an eight times circular area. The evidence shows that, no particular underground condition exists on the Ector lease as to why it should have been granted the additional well.

It is true, as pointed out by appellant, that its expert witness Hudnall testified that because of certain conditions in the producing sand' underlying the 1-acre tract, the drilling of' this additional well would result in the recovery of additional oil which would not otherwise be recovered. This under the majority view relates solely to”the question of waste and not to the question of confiscation of property; that the Commission did not grant the permit, upon the ground of waste; and that under the Gulf Land Company case, supra, • that question cannot be considered on' this appeal and is not involved in this appeal.'

The writer does not agree, with this view; but is of the view that if appellant-, can recover more oil by drilling the well, which fact was not controverted, then the refusal to permit him to do so amounts to the confiscation of his oil left in the ground. In such situation, appellee would have, to allege and prove that it had been'refused the right, to drill its lands to equal density. with the 1-acre tract before. it could, stojo the .drilling of the well which would produce more oil -for appellant, and without, whiph his oil would be left in the ground and never recovered. Ortiz Oil Co. v. Deep Rock Oil Corp., Tex.Civ.App., 112 S.W.2d 210, writ dismissed. Such was the “correlative right’’ of the parties, which is often referred to as the remedy of self-help; and which right was so ably and well established by Mr. Justice Greenwood in the case of Stephens County v. Mid-Kansas Oil & Gas Co.; 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566. It is also manifest, if appellant is allowed to recover only the- oil that may have been originally under his land, then he is denied the right to recover the oil which migrates to hjs land, which right of recovery the Supreme Court in the Stephens . County , case specifically held all landowners were entitled to.

In this connection, the majority do not sustain the remaining contention of appellant raising the question- that it was necessary for appellee to allege that it would not be able during the producing life of the field and the wells on'its-tract to recover- through such wells the amount of oil equivalent to'the amount of oil beneath such -tracts; nor to show' injury to its private property rights sufficient to call for the intervention of the court of equity. It is the majority view that this question has been raised in numerous cases and that it has been pverruled by this. court; and that the Supreme Court .has dismissed and .refused writs of error in such cases; arid deem the matter as being foreclosed by such decisions. The writer’s view on the matter is set forth in the above discussion of the correlative right of the parties!'

• Complaint is also made, that the judgment perpetually enjoins appellant from forever producing the well, even under changed conditions. This question has been determined adversely to appellant in the Allen case, supra, and need not be further discussed.

• The judgment is affirmed.

BLAIR, J., dissents as-herein set forth.

Affirmed. ■


author: GALLAGHER, Chief Justice.

text:
    SLOAN v. BARTLETT et al.
    No. 2191.
    Court of Civil Appeals of Texas. Waco.
    March 14, 1940.
    Rehearing Denied April 25, 1940.
    '. Prentice Oltorf, of Marlin, for appellant.
    T. B. Bartlett and Robert D. Peterson, both of Marlin, for appellees.
   GALLAGHER, Chief Justice.

This suit was instituted in the district court of Falls county on December 21,' 1931, by appellees, T. Bi Bartlett and Robert D. Peterson, to recover of appellant, Mrs. Sallie Sloan, and of William B. Cowan, the sum of $500 fo'r - legal services rendered by them to said parties. Ap-pellees, at the time of the institution of this suit, resided in Falls county, Texas, appellant, Mrs. Sloan, in the state of Mississippi and said Cowan in the state of Tennessee. All of them have sb resided continuously since said time. The legal services so rendered were in connection with appellant’s' claim to an interest in certain real estate situated in Falls 'county and an interest therein was adjudged to her in satisfaction of. her claim. Since both appellant and said Cowan were nonresidents of this state, appellees sought to secure service of their petition under the provisions of Articles -2037 and 2038, Revised Civil Statutes.' Notice according to the provisions, of said articles was issued for service on Cowan., on December 21, 1931. Return of service thereof on him on December 23, 1931, was duly verified on the same day'and-filed in this cause-in said court on December 30, 1931. Notice according to the provisions of said. articles was issued for service on appellant Mrs: Sloan on December 21, 1931. Return of service thereof on her on December 24, 1931, was verified on November 8, 1938, and such' notice was filed in this cause in said court- on November 10, 1938. There is no evidence that any attorney for any of Said parties ever appeared' in said court and asked for any order therein prior to October' 27, 1938. -A former judge of said court, sometime between the filing' of said suit and -December 21-, 1934, entered on the docket page thereof the words “Retired Docket”. The date , of said entry was not further shown, nor waá it shown that such entry was made at the instance of any of the parties to the suit. Appel-lees, on October 27, 1938, made affidavit and bond for attachment. A writ of attachment was issued on October 29, 1938, and on November 5, 1938, levied on certain real estate situated in Falls county as the property of appellant. ' It is apparently conceded that the same.was the property of appellant, that it had belonged to her since prior to the institution of this suit and that Cowan had no interest therein. Judgment in favor of appellees establishing their debt and foreclosing their attachment- lien was taken by. default on November. 10, 1938. ...

Appellant, on December 31, 1938, filed her motion to set aside said judgment. Said motion was verified, and alleged a meritorious defense. It was agreed by ap-pellees that appellant never appeared in the cause in person, by- attorney, by answer or otherwise up to the time she filed said motion; that there never was any understanding. or 'agreement with her or ’ notice to her or anyone represe-hting ‘ her concerning-said suit’or concerning'any action" taken or' contemplated therein or nonaction therein, between December 24, 1931, when she received copy of the original notice- of said suit, and receipt of the sheriff’s notice advertising the attached property for. sale, which was mailed to- her on December 6,.. 1938. It was further, agreed by appellees, that there was nothing done by them in the way of prosecuting their said suit between the 24th day of December, 1931, and the suing out of the writ of attachment on October 29, 1938; that the only entries ever -made on the docket sheet, besides the names of the parties and the number and date of the filing of the cause, was the notation “Retired Docket”, which, was undated, and the notation “Judgment as per decree on file”, dated November 10, 1938; and that there was-never'any‘setting of said cause between' the dates above mentioned, nor any orders ever .asked for therein except as above recited.

The court, on the 3d day of January, 1939, overruled appellant’s motion to set aside the judgment rendered against her and grant her a trial on the merits.' Mrs. Sloán alone prosecutes this appeal.

Appellant contends that under the circumstances recited, the lapse of nearly seven years..between the service on her of notice, of the filing of this suit and the filing by appellees of their attachment process, without any action whatever on their part, and without any understanding or communication with appellant during such interval, as a matter of law authorized her to conclude that they had abandoned their suit and to treat the same as abandoned, and that she was therefore not charged with notice of the filing of the attachment proceedings nor of the taking of judgment establishing a debt against her and foreclosing an attachment lien. Based on such contention, she asks this court to reverse the judgment of the trial court and to remand the cause with instructions to dismiss the same. Such contention is supported by numerous authorities: Bogle v. Landa, 127 Tex. 317, 321, 322, 94 S.W.2d 154; Brooks Supply Co. v. Hardee, Tex.Civ.App., 32 S.W.2d 384, 386, writ refused; Flanagan v. Smith, 21 Tex. 493; Crosby v. Di Palma, Tex.Civ.App., 141 S.W. 321, writ refused; Trahan v. Roberts, Tex.Civ.App., 48 S.W.2d 503; Hinkle v. Thompson, Tex.Civ.App., 195 S.W. 311; Beaudette v. City of El Paso, Tex.Civ.App., 247 S.W. 895, and authorities there cited. Authorities in direct conflict with the foregoing have neither been cited nor found.

Our holding on the foregoing issue renders immaterial discussion of other contentions presented by appellant.

The judgment of the trial court is reversed and the cause is remanded with instructions to dismiss the same.


author: JOHNSON, Chief Justice.

text:
    “56” PETROLEUM CORPORATION v. RODDEN et al.
    Court of Civil Appeals of Texas. Texarkana.
    March 28, 1940.
    Rehearing Denied April 4, 1940.
    Massingill & Belew, of Fort Worth, for relator.
    Wilcox & Wood, of Georgetown, and Lee & Porter, of Longview, for respondents.
   JOHNSON, Chief Justice.

This is an original application to this court by relator for a writ of prohibition to prevent J. H. Rodden and others, respondents, from further prosecuting a certain suit, No. 11672-A, in the District Court of Gregg County, 124th Judicial District.

History of the litigation involved is given in reported opinions of this court in cause No. 4969, styled Rodden v. Smith, 95 S.W.2d 997, and in “56” Petroleum Corporation of Texas v. J. H. Rodden et al., cause No. 6766, 98 S.W.2d 269. We shall repeat only such facts as appear material to an understanding of the issues to be determined in the present proceedings.

Dollie Rodden was adjudged insane and R. R. Collins was appointed, and qualified, as guardian of her estate, in the Probate Court of Gregg County. Pursuant to orders of said court, R. R. Collins as such guardian executed oil and gas leases and a. conveyance of ½ the minerals, covering 23 acres of land owned by Dollie Rodden in Gregg County,, through and under which conveyances relator acquired an interest in the properties.

Thereafter J. H. Rodden and Roy Wilson as next friend of Dollie Rodden, a non compos mentis, filed in the County Court of Gregg County suit in the nature of a bill of review as provided by R.S.1925, Article 4328, seeking to vacate, or have declared void the order of said court appointing R. R. Collins guardian of the estate of Dollie Rodden, as well as the judgments of that court authorizing and confirming sale of ½ the minerals in, and of the leasing of said land for oil and gas. The relator and a number of others were made defendants and filed answers in that suit. Trial of the case resulted in judgment that plaintiffs take nothing. Plaintiffs appealed to the District Court of Gregg County. Trial in the district court resulted in a like judgment as that rendered in the county court. Plaintiffs prosecuted an appeal to this court. The judgment of the district court was affirmed on the merits by this court May 7, 1936, cause No. 4969, Rodden v. Smith, 95 S.W.2d 997. In affirming the judgment of the district court 'this court followed the law as declared in Pure Oil Company v. Reece, 124 Tex. 476, 78 S.W.2d 932, the controlling facts of the two cases being identical. The judgment of this court affirming the judgment of the district court became final, without writ of error being applied for.

Thereafter, on May 26, 1936, J. H. Rod-den and Roy Wilson as next friend of Dollie Rodden, a non compos mentis, filed a second suit in the county court of Gregg County in the nature of a bill of review as provided by R.S.1925, Article 4328. The second suit was in all material respects identical with the first suit, except that the sureties on the guardian’s bond of R. R. Collins were made defendants in addition to the original defendants named in the first suit.

On September 10, 1936, “56” Petroleum Corporation of Texas, one of the defendants in the first and in the second suit, filed an original application in this court for a writ of prohibition to prevent prosecution of said second suit in the county court. Upon hearing of the application and respondents’ answer thereto, this court granted a writ of prohibition as prayed for. The opinion of this court granting the writ of prohibition is reported in “56” Petroleum Corporation of Texas v. J. H. Rodden et al., Tex.Civ.App., 98 S.W.2d 269.

Thereafter, on November 12, 1937, J. 'H. Rodden as next friend of Dollie Rodden, a non compos mentis, filed suit No. 11672-A in the District Court of Gregg County, 124th Judicial District), naming therein as defendants the same defendants, including the “56” Petroleum Corporation of Texas, who were defendants in the two former suits, and naming as additional defendants the appraisers who appraised the estate of Dollie Rodden in the guardianship proceedings and the sureties who signed the sales bond therein. The petition seeks to vacate the same orders and judgments of the Probate Court of Gregg County, and on the same or similar grounds as alleged in the two former suits, and to recover the mineral interests leased and conveyed under said orders and judgments.

Thereafter, on December 9,1937, the “56” Petroleum Corporation of Texas as relator filed the present application for writ of prohibition to prevent respondents from further prosecution of said suit No. 11672-A in the District Court of Gregg County. Relator’s application is based upon the alleged ground that the judgment of this court in cause No. 4969, Rodden v. Smith, 95 S.W.2d 997, affirming on the merits the judgment of the district court is res adjudicata of the matters sought to be litigated in respondents’ suit No. 11672-A, pending in the district court for the 124th judicial district.

Respondents answered and set up the contention, in substance, that since conveyances had been executed pursuant to the orders and judgments of the probate court attacked, and since such judgments had thereby become essential links in the purchasers’ title, that any suits to vacate or determine the validity of such judgments necessarily involved the exercise of jurisdictional power to try title to the land. Hence the county court was without jurisdiction to entertain the bill of review filed therein; that the county court being without jurisdiction to hear and determine the bill of review, the district court on appeal, acquiring only appellate jurisdiction, was likewise without jurisdiction to'hear and determine the bill of review; that the judgment of the district court being void for want of jurisdiction, the Court of Civil Appeals on appeal of the case acquired only the limited jurisdiction to declare the judgment void and dismiss the case; therefore, the judgment of the Court of Civil Appeals in cause’ No. 4969, Rodden v. Smith, 95 S.W.2d 997, affirming the judgment of the district court is void, hence not res adjudicata of the same issues sought to' he’ litigated by’ the respondents’ suit No. 11672-A pending in the District Court of Gregg County.

The issue involved is one of law, namely, after conveyance has been consummated pursuant to the orders 'attacked, does the county court have jurisdiction to entertain a bill of review as provided by'R.S.1925, Article 4328, seeking to vacate the orders of the probate court granting and confirming the guardian’s sale of land.

We decided the question, in the affirmative, holding that the county court did have jurisdiction. We so decided because such had been the implied holding by reason of decisions on the merits in the .following cases: Pure Oil Company v. Reece, 124 Tex. 476, 78 S.W.2d 932; Pure Oil Co. v. Clark, Tex.Com.App., 56 S.W.2d 850; Neal v. Holt, Tex.Civ.App., 69 S.W.2d 603, writ refused; Parker v. Bowers, 37 Tex.Civ.App 252, 84 S.W. 380, writ refused; Mullinax v. Barrett, Tex.Civ.App., 173 S.W. 1181; Kelsey v. Trisler, 32 Tex.Civ.App. 177, 74 S.W. 64; Damron v. Rankin, Tex. Civ.App., 34 S.W.2d 360, and other cases since, enactment of Article 4328 in 1846, authorizing such bills of review in the county court, and upon that theory we granted the application for writ of prohibition prayed for in this cause by relator. A motion for rehearing was filed by respondents. -Thé same question was at that time before this court in another case, cause No’. 5182, Farley •V.' Dorsey. We certified the question to-the Supreme Court in that case", and. pending'answer of the Supreme Court We carried unT ,dér consideration the motion for rehearing in the present case. The. Supreme Court answered the question in the negative, Farley v. Dorsey, 135 S.W.2d 89, 90', holding that the county court did not'have power to entertain the bill of review after , convey-? anee had been made pursuant to'the orders and judgments attacked, “for the reason that in such case the order acquires the charr acter of a muniment of title to the land involved, and, regardless of whether the order be void or merely voidable, the power to declare it void necessarily .involves the exercise of power .to.try 'title to land. The power to try. title, to land is confided by article V, section 8,- of our Constitution, Vernon’s Ann.St., in the district court in the following words: ‘The District Court shall have * * * jurisdiction * * * of all suits for trial of title to land * *.’ The power to try title to land is comprehended by the provision of section 16 of the same article of the Constitution which provides that the county court ‘shall not ‘have jurisdiction of suits for the recovery of land.’ ”

After the question was answered by the Supreme Court, the relator has by permission of this court filed additional argument and authorities, in which argument it raises the contention, in substance, that this court in affirming on the merits the judgment of the district court in cause No. 4969, Rodden v. Smith, supra, and by issuing a writ prohibiting prosecution of a second suit by the same parties in the county court in cause No. 6766, styled “56” Petroleum Corporation of Texas v. Rodden, 98 S.W.2d 269, thus by implication had sustained jurisdiction in the county court to try cause No. 4969, and that our judgment was res adjudicata of respondents’ suit pending in the district court. As supporting its contention, relator cites, among other authorities, the following cases: Wetherell v. Santex Gas & Oil'Co., Tex.Civ.App., 93 S.W.2d 543; Travis County v. King Iron Bridge Mfg. Co., 5 Cir., 92 F. 690; Murphy v. India Tire & Rubber Co., Tex.Civ.App., 27 S.W.2d 1110; Thompson v. Louisville Banking Co., 55 S.W. 1080, 21 Ky.Law Rep. 1611; Cain v. Union Central Life Ins. Co., 123 Ky. 59, 93 S.W. 622, 124 Am.St.Rep. 313; City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663. We do not think that- any of the authorities sustain relator’s position in this case. The county court being without constitutional power to entertain the suit in-the first instance-beT cause it “involve[d]' the exercise of power to try title to land,” Farley v. Dorsey/supra, the district court in the exe-rcise of its appellate jurisdiction on appeal of the case from the county court was likewise without power to try the merits, and its judgment doing so was void. Williams v. Steele, 101 [Tex. 382, 108 S.W. 155; Berry v. Barnes, Tex.Civ.App., 26 S.W.2d 657; 3 Tex.Jur. 77 et seq.; 3 Tex.Jur. 130. And for the same reason-the judgment of this court attempting to affirm the judgment of the district court is void. Chambers v. Hodges, 23 Tex. 104, 105, 111, in which it is said: “The only question which remains to be considered is,, whether the judgment of- the district court was void by reason of the alleged incompetency of the judge presiding at the time of its rendition. If so, it must be conceded, that the judgment of affirmance rendered by this court, could not.impart to it validity, but would itself be void by reason of the nullity of the judgment appealed from. Ploran v. Wahrenberger, 9 Tex. 313 [58 Am.Dec. 145], If a void judgment, it may be vacated and its execution enjoined at any time.”

The judgment of this court affirming the judgment of the district court being void, it is not res adjudicata of respondents’ suit pending in the district court. 26 Tex.Jur. 72. Courts of Civil Appeals are authorized to" issue such writs as are “necessary to enforce the jurisdiction of said courts.” R.S. Article 1823. But we would- not be warranted in issuing a writ prohibiting the prosecution of relator’s suit in the district court because such suit may interfere with the execution of a judgment of this court that is void.

The motion for rehearing will be granted and the judgment of this court authorizing the writ of prohibition heretofore entered will be withdrawn and relator’s application denied.


author: JOPINSON, Chief Justice.

text:
    NEWSOME, County Judge, et al. v. ELLIOTT et al.
    No. 5709.
    Court of Civil Appeals of Texas. Texarkana.
    April 11, 1940.
    Rehearing Denied April 18, 1940.
    R. T. Wilkinson and F. B. Caudle, both of Mt. Vernon, for appellants.
    J. A. Ward and Hiram G. Brown, both of Mt. Pleasant, for appellees.
   JOPINSON, Chief Justice.

Talco Independent School District is ¿ county-line district composed of territory located partly in Franklin County and partly in Titus County, the principal school being in Titus; the administrative- county. Kinney Point Common School District'No. 31 is located wholly within Franklin County. It adjoins the Talco district on the west. The Talco district has a considerable outstanding ' bond' indebtedness against it. ’

On the morning of January. 25, T939, Hon. Carlton Newsome, County Judge and ex-officio Superintendent of Public Schools of Franklin County, learned that :a peti-r tion was being circulated in the Kinney Point district for an election to consplidate said district with the Talco district, .whereupon a meeting of the County Board of School Trustees of Franklin County was called, at which meeting the matter .of consolidating Kinney Point District . and Hagansport Common School. District No. 26 of Franklin County was considered by the Board, -but no order was entered consolidating said districts on that date. The minutes of the Board read as follows:

“January 25, 1939.
“The Board was called to order by J.. E. Smith,- President, and the following business transacted to-wit:
“Came on to be considered re-districting of the school districts of Franklin County, There was a discussion concerning the grouping of Kinney Point District No. 31 and Hagansport, District No. 26, for the purpose of establishing a - Rural High School.
“Motion made and seconded to notify the Trustees of Kinney Point No. 31 to meet with ' the County Board Thursday, January 26th at 2 o’clock, to talk over the matter discussed above.
“There being no further business, the Board adjourned to meet Thursday, January 26th, 1939.”

On the morning of January 26, 1939, a petition of more than twenty, a majority of the qualified voters residing in said Kinney Point district, presented a petition to the Hon. Carlton Newsome, County Judge of Franklin County, praying for the consolidation of their district with said Talco district, and that an election be ordered for that purpose. A like petition signed by the requisite number of qualified voters of said Talco district was presented to and granted by the Hon. C. T. Neugent, County Judge of Titus County. In the afternoon of January 26th, following presentation of said petition to Judge New-some, the County Board of School Trustees of Franklin County met and entered an order consolidating Kinney Point and Hag-ansport districts. Whereupon, Judge New-some refused to grant the petition for election on the proposed consolidation of Kinney Point and Talco districts. On March 29, 1939, this suit was filed by G. M. Elliott and others, qualified voters residing in Kinney Point district, against Judge Newsome as County Judge and ex-officio County School Superintendent, the members of the County Board of School Trustees, and the Trustees of said Hagansport Common School District, of Franklin County. Plaintiffs’ petition alleged that the action of the County Board of School Trustees in consolidating Kinney Point and Hagansport common school districts of Franklin County was without authority of law, arbitrary and void. The petition prayed that defendants be enjoined from doing any thing further toward effecting consolidation of Kinney Point and Hagansport districts, and that a writ of mandamus issue commanding Judge Newsome to order the election on the question of consolidating said Kinney Point and said Talco districts. Trial of the case to the court without a jury resulted in a judgment declaring the order of the County Board of School Trustees of Franklin County entered January 26, 1939, purporting to consolidate Kinney Point and Hagansport districts void. The writs of injunction and mandamus were granted as prayed for. The defendants have appealed.

Appellants’ first proposition asserts that the trial court erred in granting the writ of mandamus commanding the county judge of Franklin County to order the election in question, because appellees did not plead or prove that either the Commissioners’ Court or the County Board of School Trustees of Titus or of Franklin County had consented to the proposed consolidation of said Kinney Point and Talco districts. The specific contention is that a county-line school district, such as the Talco district, composed of territory lying in two counties, may not-lawfully be changed by the addition, as here attempted, of territory to or by detaching territory from such county line district, without the consent of the Commissioners’ Court of both such counties, as required by R. S. Article 2744, reading: “* * * Such district shall not be changed or abolished except by the consent of the commissioners court of each county having territory contained therein, and if such a district has outstanding bonds the same shall not - be changed or abolished in any way until after such bonds are finally paid and discharged.” We believe the contention is sound.

In the case of County School Trustees of Runnels County v. State, Tex.Civ.App., 95 S.W.2d 1001, the above-quoted provisions of Article 2744 were construed in connection with other statutes cited in the opinion, as prohibiting and rendering void the action of the County Board of- School Trustees of Runnels County purporting to detach territory from the Talpa County Line Consolidated Independent School District, a county-line school district composed of territory lying partly in Coleman County and partly in Runnels County, without consent and action of the County Board of School Trustees of Coleman County.

In the case of Benton v. Long, 128 S.W. 2d 446, 448, the Galveston Court of Civil Appeals held void an election and the order of the Commissioners’ Court declaring the results thereof consolidating “a county-line school district,” No. 26, composed of territory lying in two counties and “a consolidated common school district”, because consent of the Commissioners’ Court of each of the counties having territory contained in said “county-line school district” had not been obtained as required by Article 2744. Judge Graves, speaking for the court said:

“* * * since No. 26 was a county-line district, and since the undisputed facts, as well as the trial court’s unquestioned findings, show that the consent of both the Commissioners’ Courts to the proposed consolidation was not obtained, the order of the Commissioners’ Court declaring the consolidation — as well as the election upon which it was based — were wholly void, as being violative of the express inhibition thus contained in R. S. Article 2744: ‘Such district (that is, a county-line one) shall not be changed or abolished except by the consent of the commissioners court of each county having territory contained therein, and if such a district has outstanding bonds the same shall not be changed or abolished in any way until after such bonds are finally paid and discharged.’

“This holding is made upon a construction of the cited Article dealing with the powers of and limitations upon county-line school districts, as well as upon the authority of these two decisions: Lubbock County School Trustees v. Harral County Line Independent School Dist., Tex.Civ.App., 95 S.W.2d 204; County School Trustees of Runnels County v. State, Tex.Civ.App., 95 S.W.2d 1001, application for writ of error dismissed.”

It is contended that the case of Woodson Independent School Dist. v. State, Tex.Civ.App., 130 S.W.2d 1038, supports appellees’ contention that consent of the Commissioners’ Court of Franklin County was not necessary to the proposed consolidation of Kinney Point Common School District lying wholly within Franklin County and the Talco Independent School District, a county-line district lying partly in Titus and partly in Franklin County. In that case “County Line Common School District No. 4”, lying partly in Stephens County and partly in Throckmorton County and administered by Throckmorton County, was consolidated with Woodson Independent School District lying wholly within Throckmorton County, as the result of an election ordered by the County Judge of Throckmorton County, the returns canvassed and the results declared by the Commissioners’ Court of Throckmorton County, without the consent of the County Judge, the Commissioners’ Court, or the County Board of School Trustees of Stephens County. The consolidation was held valid upon the conclusion that the procedure followed was authorized by Article 2742b, Sec. 5b. But it does not appear from the opinion that the court’s attention was called to the provisions of Article 2744 which forbids that a county-line district be “changed or abolished except by the consent of the commissioners court of each county having territory contained therein.” On the other hand, it appears that in each of the cases where the court’s attention was called to the provisions of Article 2744 they were applied.

In our opinion it is the sound doctrine to apply the provisions of Article 2744, requiring consent of the Commissioners’ Court of each county having territory contained therein, to a proposed change of a county-line district whether such change be to add territory to or detach territory from such county-line district. And further, it is not thought to have been the legislative intent in the enactment of the statutes permitting consolidation of school districts, nor would such appear to be a sound policy, to authorize a common school district (as Kinney Point), or any school district, to effect a withdrawal of its territory for school purposes from its own county and attach same to territory of or controlled by another county, without consent of the governing bodies of both counties.

The judgment of the trial court will be reversed and the cause remanded.


author: MONTEITH, Chief Justice.

text:
    BLONDEAU v. SOMMER.
    No. 10949.
    Court of Civil Appeals of Texas. Galveston.
    April 4, 1940.
    Rehearing Denied April 25, 1940.

      Emmet Alpha, Jr., of Houston, and A. W. Hodde, of Brenham, for appellant.
    Rosser Thomas; of Houston, and Julian E. Weisler, of Brenham, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appellant, Mrs. Evelyn Blondeau, joined pro forma by her husband, Earl Blondeau, as independent executrix and sole devisee -under the will of her deceased mother, against appellee, John Sommer, to recover the sum of $10,000, with interest and attorney’s fees, alleged to have been lost through the negligence, .fraud, and misrepresentation of appellee.

Appellant alleged that the appellee was a brother of her deceased mother, Mrs. Bertha Summers, who died on March 2, 1935; that her mother was unable to read or write the English language, and that for many years prior to her death she had permitted appellee to manage her business affairs; that on February 4, 1928, while acting as the agent of his said sister, he had loaned $10,000 of her money to -one R. E. Pennington and had accepted from Pennington his promissory note in said sum, payable to Mrs. Summers; that as security for said loan he had accepted from Pennington a note for the sum of $22,240j payable to Pennington,.and secured' by a vendor’s lien on 3829 acres of land in Webb County, Texas; that the lien securing said note was second arid inferior to a then existing .original vendor’s lien on, said land; that on June 6, 1933, appellee accepted, a renewal note'from Pennington in the sum of $11,200, representing the unpaid principal 'ahd'interest-oh said loan at that time, to which was attached the original security-; that shell renewal note was riot paid by Perinington and resulted in a total loss of said -loan by reason of the fact that the note given as collateral security was worthless. Appellant alleged that said loss was caused by- the negligence of appellee in making and securing said loan, and fraud on the part of appellee and' Pennington.

, Appellee answered by general denial-and by plea of limitation, both by exception and by special answer. He specially pled that .the loan to Pennington was made by Mrs. Summers upon her faith and belief in Pennington’s financial ability; that he’ was solvent at the time said loan was made, and that he, appellee, signed his name and Mrs. Summers’ name to the check of $10,000, payable to Pennington, at her request and by her direction.

In answer to special issues submitted, the jury found that R. E. Pennington was solvent at the time said loan was made to him and that appellee obtained security from him which appeared at the time reasonably proper and adequate. Based upon this verdict the court rendered judgment in favor of appellee.

While appellant has. brought forward numerous assignments of error, as we view the record the question of limitation presented by appellee by cross-assignment raises the controlling question in the case and renders the remaining assignments immaterial.

The alleged acts of negligence complained of by appellant upon which she bases her claim for recovery transpired in February, 1928, on the occasion of the execution of said note by Pennington and the delivery to him by appellee of the check for $10,000. This suit was filed on May 18, 1935. A careful examination of the record fails to disclose any representation made to Mrs. Bertha Summers by appellee with respect to said loan or that any fact known to appellee in connection therewith was concealed from or not disclosed to her by him, and there is no shoyving in the record that Mrs. Summers was-not familiar with all facts connected with said transaction. It is uncontroverted that the Pennington note and the collateral note by which it was secured were deposited by appellee in the safety deposit box maintained by Mrs. Summers at her bank immediately after the execution of said note. There is no record of any further connection by appellee with said note or security until June, 1933, when said renewal note was executed by Pennington.

The only issues submitted to the jury were those as to the solvency of Pennington and as to whether the security obtained by appellee was reasonably adequate and proper. No issues on the questions of fraud, misrepresentation or concealment were requested by appellant.

Since this is an action in tort for damages resulting from alleged, acts of negligence and fraud on the part of appel-lee, it is governed by the two-year statute of limitation, R.S. Article 5526, Subd. 4, which provides that all actions for debt, where the indebtedness is not evidenced by a contract in writing, shall be commenced and prosecuted within two years after the cause of action shall have accrued.

As a general rule the statute of limitation commences to run on an action for tort from the time the duty owing to the plaintiff was breached by the wrongful or negligent act of the defendant, even though in some cases the plaintiff is ignorant of the existence of his cause of action, or although damage was not sustained until after the commission of the tort. In negligence cases the statute runs from the time of the negligent act or omission. 28 Tex.Jur., 182, § 90. In an action for damages for fraud limitation begins to run when the fraud is perpetrated, or, if the fraud is concealed, from the time it is discovered or could have been discovered by the exercise of reasonable diligence. 28 Tex.Jur., 124, 125, 153; American Indemnity Co. v. Ernst & Ernst, Tex.Civ.App., 106 S.W.2d 763; Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40; Tuerpe et al. v. Saunders Live Stock Commission Co. et al., Tex.Civ.App., 259 S.W. 649.

It is stated by the Supreme Court in the case of Houston Waterworks Co. v. John Kennedy, 70 Tex. 233, 8 S.W. 36, 37, that: “If, however, the act of which the injury was the natural sequence was a legal injury, — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right, — then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.”

The rule is stated in 17 R.C.L., 763, § 129, that “ * * * where an injury, though slight, is sustained in consequence of the wróngful or negligent act of another and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all of the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. The act itself is regarded as the ground of the action and is not legally severable from its consequences.” See also American Indemnity Co. v. Ernst & Ernst, supra, and cases therein cited.

In the absence of a showing of fraud or prbof that any facts were concealed from or not disclosed to Mrs. Bertha Summers by appellee, this cause having been filed more than seven years after the alleged commission of the acts complained of by appellant, it is clearly barred by limitation. The judgment of the trial court is therefore affirmed.

Affirmed.


author: BROWN, Justice.

text:
    TEBAY v. MORRISON.
    No. 14067.
    Court of Civil Appeals of Texas. Fort Worth.
    April 5, 1940.
    Rehearing Denied April 26, 1940.
    Marshall & King, of Graham, for appellant.
    Fred T. Arnold, of Graham, for appellee.
   BROWN, Justice.

Appellee, A. A. Morrison, who is the sole owner of Morrison Funeral Home, and engaged in the business of an undertaker, brought suit against appellant, H. M. Tebay, on an open account for merchandise sold and services rendered, aggregating $231.50, and covering a casket, embalming services, a suit of clothes and of underwear, grave lining and the use of a hearse and family car.

When the defendant leveled exceptions and pleas to the original petition because it failed to disclose for whom the merchandise and services were rendered, and who ordered same from the plaintiff, he then filed a Supplemental Petition, in which he alleged that he had a clerk in his employ named E. E. Durham, who was his duly authorized agent in the conduct of his undertaking business, and “that H. M. Tebay was on said date doing business in the town of Graham under the name of Tebay Tool Company, of which he is the sole owner, and that on such day and date one F. H. Lundy was the duly authorized and acting agent for the said H. M. Tebay. That Leslie Holcomb was on or about the 6th day of January, an employee of the said H. M. Tebay, and that the said Leslie Holcomb died. That after the death of the. said Leslie Holcomb that F. H. Lundy, acting for and on behalf of H. M. Tebay, instructed this plaintiff or his agent, E. E. Durham, to go to the house of the said Leslie Holcomb and take charge of his body and embalm it and bury it and charge it either to H. M. Tebay or to Tebay Tool Company, all of which was the same.”

Agency and authority of Lundy was denied by Tebay, under oath, as was the verified account sued upon.

The cause being tried to a jury, the trial court only submitted two special issues. The first issue is: “Do you find from a preponderance of the evidence that before the actual delivery of the items in the account sued upon, F. H. Lundy, acting for the Tebay Tool Company, told E. E. Durham, an employee of A. A. Morrison, to charge such account to the Tebay Tool Company on the books of the Morrison Funeral Home?” (The jury answered "‘Yes”.)

Among the objections to the court’s charge we find that the defendant specifically points out the fact that this Issue Ño. 1 assumes that F. H. Lundy was an authorized agent for Tebay Tool Company with previous authority to charge the Holcomb funeral bill to Tebay Tool Company; and such charge is on the weight of the evidence.

Were it not for the unqualified statements made by Mr. Tebay on the witness stand, the objections would be goo.d.

He said, when asked, “If Mr. Lundy instructed Morrison’s to furnish these supplies and bury the body and agreed that Tebay Tool Company would pay for them, you would pay the bill, wouldn’t you?” “Yes, if he did give those instructions.”

“Q. If he gave those instructions, you will pay the bill? A. Yes, sir.
“Q. You are not denying Mr. Lundy had authority to make that agreement, if he did make it? A. No, sir.
“Q. The only thing you are denying is that he did not make the agreement? A. Yes, sir.”

Lundy admitted that he told Durham that Holcomb was dead, “and to go down and get his body.” When asked why he did that, he replied that he “knew somebody had to bury him.” This witness further said that after telling Durham what he testified to, he went back to the office of Tebay Tool Company and, “Mr. Tebay and the rest of them were there at the office when I got back and I told them what I had done.”

As we see it, under this record, there was but one issue for the jury, viz., Did Lundy tell the plaintiff’s agent to charge the account to Tebay Tool Company? All else is admitted, and the jury found that Lundy so told Durham.

Any evidence admitted that was subject to the hearsay rule constituted harmless error, since no issue was submitted touching such testimony.

The defendant having pleaded that the account was barred by the Statute of Limitations of two years (Art. 5526, R.C. S.), the second issue submitted was bottomed on that pleading and the jury found against the defendant.

There was no error in refusing to give defendant’s requested issue No. 2, asking the jury to find whether or not the plaintiff or his attorney used reasonable diligence in having citation issued and served, after the suit was filed. It appears that the suit was filed within the statutory time, and, on the testimony, the jury so found, but the issue of negligence in causing the citation to be issued and served, is a different question and must be specially pleaded. This was not done.

We find no error requiring a reversal and the judgment must be affirmed. It is so ordered.


author: LOONEY, Justice.

text:
    FERGUSON et al. v. McLEAN et al.
    No. 12872.
    Court of Civil Appeals of Texas. Dallas.
    March 30, 1940.
    John W. Pope, Sr., of Dallas, for appellants.

      W. B. Harrell and Russell Allen, both of Dallas, for appellees.
   LOONEY, Justice.

The events leading to the present controversy are these: In December, 1936, the Dallas Mortgage Securities Company, a domestic corporation, was dissolved by the voluntary action of its stockholders, and its president and directors, under the provisions of the statute, became trustees for purposes of liquidation. In February, 1937, three of the trustees instituted a proceeding in the court below, naming the other trustees and the corporation, defendants; plaintiffs tendered their resignation as trustees, and, as stockholders, sought recovery of their respective interests in the assets of the corporation, and, as ancillary to the proceedings, prayed for the appointment of a receiver to wind up the affairs of the corporation. The trustee-defendants answered and, in effect, joined in the prayer of the plaintiffs. On March 1, 1937, the court appointed H. G. McLean (a stockholder, one of the trustees, and one of the nominal defendants) receiver, who immediately qualified, took charge of the assets of the corporation, filed an inventory and appraisement of the assets belonging to the corporation, and began the process of liquidation.

Subsequently, on March 18, 1937, H. W. and Searcy M. Ferguson, stockholders, appellants herein, intervened, filed a pleading in opposition to the action of the court, and, among other things, urged a general demurrer to the petition, which was sustained, and the proceedings dismissed, from which an appeal was prosecuted to this Court. On hearing, we reversed the trial court and remanded the cause for further proceedings. See Hogsett v. Dallas Mortgage etc. Co., Tex.Civ.App., 110 S.W.2d 135, application for writ dismissed.

On February 15, 1938, after the return of the cause to tire trial court, appellants filed a motion for the removal of McLean as receiver, alleging as grounds that he was not a qualified voter in that he had failed to pay his poll tax, and further, that he was a party to the suit and interested in the subject matter.

On April 28, 1938, before action was had on the motion, appellee tendered his resignation as receiver, which was accepted, and, on the same day, the court appointed Felix B. Harris, receiver, to whom appellee surrendered possession of the assets of the corporation; filed detailed reports of his acts and doings as receiver, prayed that the same be approved; that he be allowed reasonable compensation for services as secretary-treasurer of the corporation, rendered prior to March 1, 1937, alleged to be $100 per month, and that, he be allowed reasonable compensation for his services as receiver, alleged to be $100 per month.

Appellants filed lengthy pleadings, urged numerous objections to appellee’s report as receiver,, and opposed any allowance in his favor for services either as secretary-treasurer, or as receiver of the corporation; the latter objection being based on the ground of appellee’s alleged disqualification, as hereinbefore stated.

The matter was heard by the court on March 3, 1939, resulting in an order approving appellee’s report as receiver, and allowances in his favor of $1,100, compensation for services as secretary-treasurer of the corporation, rendered prior to March 1, 1937, and $1,393.24, compensation for the time he served as receiver. To all of which appellants excepted, gave notice of, and perfected this appeal.

The only question presented on this appeal relates to the correctness, whether or not, of the action of the court in allowing appellee compensation for his services as receiver. Appellants do not question the value of his services to the estate, or the reasonableness of the amount allowed; nor do they contend that his appointment was void, but, rather, was voidable, insisting, however, that, as they made seasonable objection to the appointment on the ground of appel-lee’s statutory disqualification, the' court was without authority under the law to allow compensation.

As before shown, appellants urged a general demurrer to the entire proceedings, which was sustained, but, on appeal, we reversed the trial court, remanded the cause for further proceedings, and, after án application for writ of error was dismissed by the Supreme Court, the case was returned to the docket of the trial court. In this status, appellants filed a motion to remove appellee as receiver, on the ground of his alleged disqualification, but before the court acted upon the motion, appellee resigned, in order, as alleged by him, to prevent delay in liquidating the estate, that otherwise might have resulted if a protracted contest had ensued. The record discloses that, from the.day of his qualification as receiver, to the day of his resignation, the business and affairs of the estate received appellee’s sedulous care and attention.

Under these circumstances, we do not think the court erred in allowing appellee compensation as receiver. The case, in our opinion, is ruled by the doctrine announced in James v. Roberts T. & E. Co., Tex.Com. App., 206 S.W. 933. The judgment of the court below is affirmed.

Affirmed.


author: WILLIAMS, Justice.

text:
    SPELL et al. v. HANES.
    No. 5531.
    Court of Civil Appeals of Texas. Texarkana.
    March 27, 1940.
    Rehearing Denied April 4, 1940.
    Newland, Cornett & Whitworth, of Linden, for appellants.
    Carney & Carney and Tom J. Mays, all of Atlanta, for appellee.
   WILLIAMS, Justice.

This trespass to try title action, filed August 30, 1937, by Mrs. Kate E. Spell and husband, plaintiffs below, involves the determination of the number of acres of minerals conveyed to L. C. Hanes, defendant below, under a deed executed by T. G. Rodgers and wife on April 15, 1927. This deed reads:

“Know All Men By These Presents:
“That we, T. G. Rodgers, and Opal Rodgers, his wife, for and in consideration of the sum of $125.00 . . . to us cash . . . paid by L. C. Hanes, receipt of which is acknowledged, do hereby grant, sell and convey unto the said L. C. Hanes, and to his heirs and assigns forever, an undivided one-fourth interest in and to all of the oil, gas and other minerals, in, under and upon the following described lands lying within the county of Cass, and State of Texas, to-wit:

[Here follows description by metes and bounds of a 66½ acre and a 12½ acre tract totaling 79 acres, more or less], subject, however, to a certain oil, gas and mineral lease executed by T. G. Rodgers on the - day of - 192— unto Ohio Oil Co. on said lands which lease is recorded in Record Book No. — at page — in the office of the Clerk and Recorder of Cass County, Arkansas, and for the said consideration we do hereby grant and convey unto the said L. C. Hanes and unto his heirs and assigns the right to collect and receive under the aforesaid lease and such undivided one-fourth part and interest of all oil royalties and gas rentals due or that may become due under the aforementioned lease.

"Above grant is to apply to our undivided interest in and to above described lands.
“To have and to hold the above described property, together with all and singular the rights ánd appurtenances thereto in anywise belonging, unto the said L. C. Hanes, and unto his heirs and assigns forever.
“And we hereby covenant with the said L. C. Hanes that we will forever warrant and defend the title to the above described lands and the rights herein conveyed against all lawful claims whatever.”

It is agreed that Rodgers and wife owned a % undivided interest in above 79 acres at the time he executed this mineral deed. It is without dispute that in 1928 Rodgers and wife conveyed off under a general warranty deed and plaintiffs through mesne conveyances acquired a ⅝ undivided interest in the 79 acres, save and except such mineral interest that Rodgers and wife had theretofore conveyed to Hanes. N. C. Land, not a party to this suit, owned a ⅜ undivided interest that he acquired from the brothers and sister of Rodgers. The terms of the Ohio lease were not introduced in evidence, and evidently terminated under its own provisions. (All italics in this opinion are ours).

Plaintiffs pleaded that they were the owners of an undivided ⅝ interest (37.031 acres) in the minerals, less the undivided interest theretofore conveyed to defendant; and assert that the mineral deed purports to convey to defendant only an undivided interest of ¼ of the ⅝ undivided interest, and defendant acquired only 12.344 mineral acres under the deed. Their prayer is that the deed be so construed, and that they have judgment for title and possession of their claimed 37.031 acres undivided interest, and for removal of cloud from title. Defendant answered with general demurrer, denial and plea of not guilty, and asserted other defenses not necessary to mention. In a cross-action he alleged a trespass to try title action in statutory form covering his claimed 19.75 mineral acres undivided interest. Upon trial to the court without a jury, judgment was rendered which denied plaintiffs any of the relief sought and awarded defendant title and possession of the 19.75 acres on his cross-action.

Plaintiffs predicated their cause of action upon the clause, namely, “Above grant is to apply to our undivided interest in and to the above described land.” They contend that by reason of this clause the grant is to be restricted or limited to ⅛ of the ⅝ undivided interest at the time owned by Rodgers. It is to be observed that the granting clause reads: “ * * * do hereby grant, sell and convey * * * an undivided one-fourth interest in and to all of the minerals” under the 79 acres, subject to the oil lease. This clause further reads, “do hereby grant and convey one-fourth part and interest of all oil royalties and rentals to become due under the lease.” The grantor in the mineral deed has here twice used the term “all,” which is very expressive of the intent that ¼ interest in the entire 79 acres- was being conveyed. The term “all” is not ambiguous. In the use of the language “above grant” in the clause which plaintiffs rely upon, the grantor here is saying above conveyance of ¼ in and to all the minerals is to be taken out of our part of the 79 acres. “Above grant” refers to the conveyance of ¼ of all the minerals. This conclusion would be in harmony with the granting clause. It would be in keeping with the warranty clause. To give the clause the construction plaintiffs insist upon, it would become necessary to change and modify the term “one-fourth interest in and to all” so as to read “one-fourth interest of our interest” or “one-fourth interest in a ⅝ interest.” Such terms could have been easily used by the grantor at the time, but were not. This court would not be authorized to modify or change these terms. Clemmens v. Kennedy, Tex.Civ.App., 68 S.W.2d 321, 324; Stano-lind Oil & Gas Co. v. Barnhill, Tex.Civ.App., 107 S.W.2d 746, 749.

But if it be conceded that the language under construction is ambiguous, it is to be construed so as to confer upon the grantee the greatest estate that its terms will permit. 14 Tex.Jur. 926, Sec. 148; Bolton v. Dyck Oil Co., Tex.Civ.App., 114 S.W.2d 299, 301; 14 Tex.Jur. 916, Sec. 138; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551, 552. Thuss Oil & Gas 2nd Ed. p. 46.

In 1932, subsequent to the date of the mineral deed, plaintiffs and defendant, joined by Land, executed an oil and gas lease to R. W. Norton, covering the 79 acres and an additional 80-acre tract owned by Land. This was a unitized lease, and contained a recital reading:

“It is further agreed by the lessors that the premises leased herein are now owned by lessors as follows:
Name Acres Address
Mrs. Kate Spell 29.625, Vivian, La.
N. C. Land 109.625 Vivian, La.
L. C. Hanes 19.75 Wink, Texas.

and that the payment of all rentals or royalties may be made by check. All such payments made to the lessors by lessee on the basis of the number of acres shown above to be owned by them or any of them shall constitute full compliance by lessees of its obligation to make any such payments.”

Plaintiffs and Land signed and acknowledged this lease in Louisiana and defendant executed same two weeks later at Wink, Texas. Plaintiffs did not in anywise dispute the execution of the lease or contend its recitals were inserted through mistake. These recitals as to acreage interest are in harmony with and fortify the construction reached that defendant acquired ¼ interest in all the minerals. Exum v. Laub, 5 Cir., 87 F.2d 73; Texas & N. O. R. Co. v. Orange County, Tex.Civ.App., 206 S.W. 539, 544; 14 Tex.Jur. p. 924; Cavazos v. Trevino, 6 Wall. 773, 73 U.S. 773-775, 18 L.Ed. 813; 17 C.J.S., Contracts, page 755, § 325.

The judgment is affirmed.


author: PER CURIAM.

text:
    WHITFIELD v. BRUCE.
    No. 5535.
    Court of Civil Appeals of Texas. Texarkana.
    April 4, 1940.
    Shelburne H. Glover, of Jefferson, for appellant.
    G. De Graffenried, of Marshall, for ap-pellee.
   PER CURIAM.

This is an appeal from a judgment of the County Court of Harrison County, Texas, dismissing an application for a writ of certiorari filed by appellant in an effort to have transferred to said court for trial de novo a suit brought by appellee, J. R. Bruce, against appellant, W. C. Whitfield, in the Justice Court of Precinct No. 3, Harrison County, in which judgment had been rendered by default in favor of Bruce against Whitfield.

The record indicates that almost every phase of our procedural law governing the practice in our justice courts, including practice by agreement, arose in some fashion during the proceedings in the courts below. It appears that suit was instituted by appellee, Bruce, as plaintiff, by written petition in which he also reserved the right to plead orally; that defendant filed a plea of privilege to be sued in the Justice Court of Precinct No. 3 in Marion County; that controverting affidavit was filed thereto; that the plea was overruled; that defendant filed written answer, including plea of limitation under both the two and four year statutes; that trial on the merits was then postponed followed by some negotiations about the date of trial; and that judgment was later rendered by default in favor of appellee, which appellant contends was done without notice to him or his attorney. In the progress oí the proceedings appellee sued out a writ of sequestration which was levied on part of the personal property involved, whereupon appellant replevied the two animals which the sheriff was able to find.

The principal res or causa belli of this suit is a black Shetland máre of uncertain age and two of her offspring, styled colts' in the record, one of which was more than two years old at the time of the institution of the suit in 1937, and the other at least one year old. We are not informed as to the gender of these colts, or whether they inherited the complexion of their mother, or whether, they turned out to be blondes, said to be more dangerous of the species. Neither are we furnished the name of her colts; in fact, it .is to be inferred that they do not have the same paternal ancestor. Whether or not the mother of this family has a name or registered pedigree is not disclosed. This omission is doubtless due to an oversight since it is alleged that each of the parties have become so attached to her as to make it almost impossible to give her up.

It is alleged that appellee, Bruce, at some date not shown, in consideration of her board and keep, turned the black Shetland mare over to, Vernon Hillard, a resident of said county, to be kept until called for.. It is a fair inference that the animal must have been along in years since such disposition is the fate of some elderly people. The petition shows that thereafter appellee borrowed $25 from Hillard and agreed to repay it when he called for the mare; that subsequently Hillard had no further use for the mare and he turned it over to one Barber, also of Harrison County, who paid Hillard $25, appellee agreeing to the assignment and promising to pay Barber the $25 when he called for the mare; that Barber thereafter transferred possession of the animal to appellant under the same arrangement, also agreed to by appellee. Thereupqn the plot thickens. It is alleged that appellant desired to breed the mare, provided appellee would pay the “stud” fee, which he agreed to do. We are not given the description of the offspring, but at least it must have been promising since the operation was repeated the following year. Again we are deprived of description of the second offspring; evidently one must have been a “woods colt” since it appears that it could not be found by the sheriff.

Appellee in his petition admitted that he owed appellant $25, money borrowed, and $5 for each of the colts, a total of $35 which he alleged he had tendered to appellant at the time he demanded possession of the -animals, and which he again tendered in his pleadings. He claims appellant denied him possession of his mare and her progeny, and in effect scorned the offer of the amount tendered. As already indicated, we are left in doubt as to the present whereabouts of the animals or whether they are living or dead. But the record does show that appellee, after offering to pay appellant $35, secured a judgment by default for the possession of one mare and one colt, and in the alternative, their value of $100, and the' further value of $50, the alleged value of the other colt, which undoubtedly escaped to avoid the notoriety of this litigation.

The county judge of Harrison County exercised the functions of his office by granting appellant’s application for writ of certiorari and had the record brought before his court, but on motion of appellee dismissed the writ. The record is now before us on four assignments of error: (1) That the justice court erred in overruling appellant’s plea of privilege; (2) that the said court erred in rendering judgment by default against appellant; (3) that said court erred in refusing to permit appellant to file an amended bond; and (4) that the county court erred in dismissing the writ of certiorari.

The first two assignments of error will not be discussed as this is an appeal from an-order dismissing the writ of certiorari in the county court. The latter two assignments will be considered together. The application for the writ of certiorari was filed within the statutory time as provided in Article 946, R.C.S. The application for the writ shows good cause under Article 945 for removal of the case to the county court. The bond timely filed by applicant, made payable to Bruce in the amount designated by the county judge (Article 947), was defective as to form. Applicant thereupon asked leave to file a substitute or amended bond in the proper sum, and conditioned as required by law. This the court refused and dismissed the writ of certiorari. This was error. 26 T.J. 908, Sec. 106; Ezell v. Knapp & Elliott, 120 Tex. 503, 39 S.W.2d 829.

The judgment of the trial court is. reversed and the cause remanded.