author: ' NORVELL, Justice.

text:
    HORNE v. MOODY.
    No. 10659.
    Court of Civil Appeals of Texas. San Antonio.
    Oct 21, 1940.
    Rehearing Granted in Part Dec. 18, 1940.
    Motion for Rehearing Overruled Jan. 8, 1941.

      Raymond, Algee & Alvarado, of Laredo, for appellant.
    Mann & Mann, of Laredo, and Frank S. Anderson, of Galveston, for appellee.
   ' NORVELL, Justice.

This is an action of trespass to try title brought by A. A. Horne against W. L. Moody, Jr., seeking a recovery of title and possession of Surveys Nos. 1008 and 1009, Jim Hogg County, Texas. Horne established a prima facie case which Moody attempted to rebut by showing that the lands in controversy were within the boundaries of prior grants of the State of Tamaulipas, namely, Las Viboritas, jurisdiction of Mi-er, Francisco Montalbo original grantee, and El Sordo, jurisdiction of' Guerrero, Luis Vela original grantee.

On the trial it was conceded that Moody had title to the land in controversy, provided the same was within the boundaries of the prior Mexican grants. The questions presented are with reference to the true location of the north and west boundaries of the Viboritas and the north and east boundaries of the Sordo.

Trial was to the court without a jury. Judgment was rendered for Moody. Findings of fact and conclusions of law were filed. Horne brings the case here upon assignments attacking such findings and conclusions.

The following plat shows the approximate location of the surveys and grants in controversy:

We first consider Survey No. 1008. It is appellant’s contention that the true north line of the Viboritas is that shown upon the map as the Lara Survey. That contention is sustained by us, and we therefore hold that Survey 1008 is outside the boundaries of the Viboritas, and the trial court was in error in denying appellant judgment therefor.

The Viboritas was granted to Francisco Montalbo, a citizen of Mier, by the State of Tamaulipas in 1831. A survey of the grant was made during that year by a State surveyor named Lara. The field notes were introduced in evidence upon the trial, and a surveyor, C. A. Douglas, whose qualifications were admitted by both parties, testified that these original field notes could be followed, and that he had made a re-survey of the grant, following in the footsteps of Lara, and located the grant upon the ground. This re-survey by Douglas has been examined by us and, in our opinion, correctly locates the north line of the Viboritas.

The appellee does not question the accuracy of the Douglas re-survey, but contends that the north boundary line of the Viboritas has been established as an extension of the north boundary line of Survey 162 to the east, and the west boundary line has been established as coinciding with the east boundary line of Survey 162. It is urged that these boundary lines are binding upon the parties to this suit, under the doctrine of “stare decisis,” and it appears that the trial court rendered its judgment on this theory.

In 1913, the heirs of A. Allen, deceased, as the owners of Survey No. 162, brought two suits, one against Harry Edds, owner • of Survey No. 208, and the other against J. J. Draper and others, as owners of Survey No. 207. These cases were consolidated and tried together. An appeal was taken from the judgment of the district court to this Court. See Allen v. Draper, 204 S.W. 792. Writ of error was granted and final judgment rendered by the Supreme Court, upon the. recommendation of the Commission of Appeals. See 254 S.W. 783.

The field notes of the Allen Survey (No. 162) call for the northwest corner of the Viboritas as well as the west boundary line thereof.

The Allen heirs based their suit upon the theory that the true northwest corner of the Viboritas and true northeast corner of Section 162 was located at a point where a line running north from a point known as Chaparros Prietos (clump of black brush) would intersect a line running west from a point marked with two large stones supposed to be the northeast corner of Viboritas, and that there was a conflict between Survey 162 and Surveys 207 and 208. The 'defendants, or at least some of them, controverted this theory in their pleading and asserted that plaintiffs were attempting to “pull and place said Survey (162) further west than as originally located and thereby lapping the same over, upon and causing the same to conflict” with Surveys 207 and 208, when there was in fact no conflict.

It does not appear that any of the parties to this litigation attempted to locate the northwest corner, or the west line of the Viboritas by using the original Lara field notes to the grant. A surveyor named Hayes Dix testified that Chaparros Prietos had been pointed out by his father as the southwest corner of the Viboritas, and was reputed to be the corner of the grant, although the Chaparros Prietos is not mentioned in the Lara field notes. It also appears that the two large stones taken as the northeast corner were probably established as such by J. E. Martin, who surveyed the grant for a patent as the result of certain court proceedings had in Starr County, which were probably void due to a lack of jurisdiction of the Starr County District Court.

At the conclusion of the testimony both sides admitted that there were no issues of fact to go to the jury, and that the “only issues or issue in the case was one purely of law to be decided by the court.”

The holdings of the trial court, this Court and the Supreme Court in the case are sufficiently set out in the opinions reported in 204 S.W. 792, and 254 S.W. 783.

The contention of appellee is that in the former case the trial court must have necessarily determined the northwest corner and west boundary line of the Viboritas,. in order to determine the correct location of Survey 162, and the consequent finding of a conflict between Section 162 and Sections 207 and 208; that this finding was approved hy this Court and left undisturbed and possibly approved by the Supreme Court. His counter-proposition reads as follows: “The trial court had no alternative but to locate the north and west boundary lines of Las Viboritas Grant, and the north and east boundary lines of El Sordo Grant, as he did locate them, because the judgments of the trial court, the Court of Civil Appeals and the Supreme Court, in the case of Allen et al. (204 S.W. 792, and 254 S.W. 783) in so locating such boundary lines were and are binding on the courts in the pending cause under the doctrine of stare decisis.”

There is no contention that the doctrine of res judicata has application here, but it seems to be appellee’s contention that the principle of stare decisis, in effect, accomplishes the same result in cases involving boundaries, even though there is no identity of parties or subject matter in the two cases. We do not understand that the doctrine of stare decisis as applied to boundary cases in this State has the broad application urged by appellee.

In the case of Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792, the Supreme Court had before it the question of the proper construction of Block 194, G. C. and S. F. Ry. Co. Surveys, Pecos County, Texas, and after an exhaustive discussion of the various contentions involved held as a matter of law that the surveys in Block No. 194 should be constructed eastward by course and distance alone, without giving effect to calls for adjoinder on the south with Block 178, T. C. Ry. Co.’s Survey. In Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993, the Supreme Court again had before it the question of the proper construction of said Block No. 194, and held that the rule of construction adopted in the Smith-Turner case, was one of law and binding upon the court under the principle of stare decisis. The court cited with approval the following paragraph from Texas Jurisprudence: “Stare Decisis. — The doctrine of stare decisis — under which the determination of a question of law by a court of ultimate resort becomes a part of the law of the state and a precedent governing the decision of subsequent matters involving the same point- — -differs considerably from the doctrine of res judicata. The rule of stare decisis has reference only to questions of law; it involves no element of estoppel, and it operates upon all persons, and not merely the parties to the particular proceeding and their privies. Thus when the Supreme Court or a Court of Civil Appeals — if the Supreme Court has denied an application for a writ of error— has once given a definite effect to a specific writing or a particular fact situation — as when it determines the true construction of a will or the validity of a deed or a judgment or fixes the boundaries of a particular survey — such determination is binding and conclusive in all subsequent suits involving the same subject matter, whether the parties and the property are the same or not. This result is reached under and by virtue of the doctrine of stare decisis and not under the rule of res judicata.” 26 Tex.Jur. p. 46, § 368.

As we understand the rule of stare decisis in this State it is one of -precedent and authority. It is based upon the statement of a principle, rule or proposition of law by the Supreme Court or the highest court in the State having jurisdiction of the particular case. In a boundary suit the adoption of a particular legal proposition, such as a rule of construction, generally results in a judgment establishing a certain boundary. The doctrine of stare decisis, however, is based upon the legal principle or rule involved and not. upon the Judgment which results therefrom. In this particular stare decisis differs from res judicata, which is based upon the judgment.

Appellee points out that this Court, in Allen v. Draper, supra, said: “The [trial] court by its decree has determined that the two parcels of land herein sued for are located in survey No., 162 * * *. The evidence is sufficient to support this finding by the court. This proof was offered by appellant to sustain his contention. The question of the exact location of the land and the question of whether or not there is a conflict in the location of the three surveys is therefore eliminated” (loe. -cit. 204 S.W. 792). It is appellee’s contention that this Court thereby expressly approved and adopted the trial court’s holding with reference to the location of the Survey No. 162. If this be true, the record discloses that the principles or rules of law involved in the holding are those stated by Allen as propositions in his brief, as follows :

“When the unmarked line or corner of a survey calls for an unmarked line or-corner of an adjacent survey whose corner line is or may be established upon the .ground with certainty the call will have the dignity of an artificial object. * * *
“Where the southwest and northeast corners of a survey are well established .and undisputed on the ground, and the northwest corner is uncertain and the west .and north lines of the surveys are run ■out on course their point of intersection will constitute the northwest corner of the survey.”

These rules or propositions in no way conflict with the principles of law involved in our holding here. Wé hold that the field notes of the original Lara survey are controlling in locating the true ■north boundary of the Viboritas. There .is no conflict upon any point of law between our decision in this case and the former decision of this Court or the Supreme Court in Allen v. Draper, supra. 'There is no conflict of judgments. Neither the parties nor the subject matter of the two suits is the same.

An entirely different situation was presented in the case of Federal Royalty Company v. State, supra [128 Tex. 324, 98 S.W.2d 996], wherein Judge Hickman pointed out that: “We are confronted 'here with conflicting judgments, as well .as with conflicting principles of decision.”

As to Survey No. 1009, we have con•cluded that the trial court was in error in refusing appellant a recovery of that part ■of said survey lying west of the west line ■of the Viboritas, as surveyed by Douglas in following the Lara field notes.

The Sordo Grant was made to Luis Vela, .a citizen of Guerrero in the State of Tam-.aulipas, and surveyed by Antonio Canales, .a State surveyor. His field notes could •not be located and were not introduced in ■evidence. A plat made in connection with the grant merely shows that the Sordo was in the form of a parallelogram 200 cordeles ■east and west by 250 cordeles north and .south. The title of Luis Vela to the grant was confirmed by the Texas Legislature in 1852, and, as a result thereof, R. C. Trim-ble, a State Land Surveyor, made a survey of the Sordo and field notes of the grant in 1853. Trimble’s field notes are as follows:

“Situated in Starr County, beginning 58,-600 vs. S. 77 deg. 45' W. from the southeast corner of McKinney & Williams large survey on the Los Olmos creek, at the old original post and stone corner set for N. E. corner of this survey.
“Thence S. 12,500 vs. to a post in open prairie, no trees in sight. *
“Thence W. 10,585 vs. to a post in open prairie, no trees in sight.
“Thence N. 12,500 vs. to the old original post and stone corner, called ‘Lindero de las Cabesas.’
“Thence E. 10,585 vs. to the place of beginning, being the old original N. E. corner, called ‘Lindero de los Conejos,’ containing 132,312,500 square varas of pasture land.”

Attached to the field notes was a plat which contained a tie call for the northeast corner of the Sordo to be situated N. 20 deg. 41' West 19,985 varas from the Upper Agua Nueva Grant.

C. A. Douglas testified that he could not find or locate any of the corners described in Trimble’s field notes; that by actual survey upon the ground, he found that the tie call for the McKinney and Williams Survey was erroneous and would locate the northeast corner of the Sordo, two and three-fourths miles south and two miles east of its present recognized position, and cause it to conflict with numerous surveys and grants; and that an actual survey on the ground from the Upper Nueva, as now recognized on the ground, would place the northeast corner of the Sordo about two miles south and a half mile west of its present recognized position.

It appears, however, that shortly after he surveyed the Sordo, Trimble also surveyed and prepared field notes for the Palitos Blancos and San Antonio de Balu-arte Grants. Part of Palitos Blancos lies immediately to the east of the Sordo, and part of the Baluarte lies immediately to the north of Palitos Blancos. These field notes having been prepared in the same year as the notes for the Sordo were admissible in evidence in order to show where Trimble actually ran the lines of the Sordo. State v. Dayton Lumber Co., Tex.Civ.App., 159 S.W. 391; Sullivan v. Solis, 52 Tex.Civ.App. 464, 114 S.W. 456; 7 Tex.Jur. 224.

Plats accompanying Trimble's field notes of these grants surveyed. by him in 1853 present the following composite picture: W. cor. of 'San Antonio Baluarte' and at 7300 vs. the place of beginning, containing 71,350,000 square varas prairie land.”

From the testimony of Douglas, it appears that the present recognized location of the southwest corner of the Baluarte Grant is the same as that recognized by Trimble in 1853, when he surveyed the grant. There is no dispute between the parties as to the location of this corner.

The Trimble field notes of Palitos Blan-cos read as follows:

“Beginning at the N. E. cor. of this survey on the south boundary line of the grant called ‘San Antonio Baluarte’ being a large forked stake surrounded by bones which is the original corner — no bearing trees.
“Thence South with the East boundary at 9,500 vs. the old original N. W. cor. of ‘Agua Nueva de Arriba,’ which is the S. E. Cor. of this survey — no bearing trees.
“Thence West 7,300 vs. to the old original S.W. corner of this survey, which is a large pile of rocks — no bearing trees.
“Thence North at 6400 vs. passed the S. E. cor. of ‘El Sordo,’ thence with east boundary of that tract at 9,500 vs. a post set on said ea^t line of El Sordo piled round with rocks for the N. W. cor. of this survey — no trees near.
“Thence east with the north boundary of this survey, at 4,400 vs. passed the S.

From these field notes it appears that Trimble had located the east line of the Sordo, a distance of 4400 varas west of the southwest corner of’ the Baluarte, and that he had located the southeast corner of the Sordo at a point 3100 varas south of where an extension of the south boundary line of Baluarte, which is the north boundary line of Palitos Blancos, intersects the east line of the Sordo. The east line of El Sordo coincides with the west line of Palitos Blancos, and the northeast corner of the Sordo is therefore properly located by extending this line to a point 9400 varas north of the northwest corner of Palitos Blancos to satisfy Trim-ble’s call for distance in the east boundary line of El Sordo, which is 12,500 varas. The north boundary line of the Sordo is properly located by reversing Trimble's call and running west from the northeast corner according to the field notes. Jones v. Andrews, 72 Tex. 5, 9 S.W. 170; Burge v. Poindexter, Tex.Civ.App., 56 S.W. 81.

The view above taken as to the correct location of the northeast corner of the Sor-do is further substantiated by considering the tie call to the Upper Agua Nueva shown in the plat accompanying Trimble’s field notes of the Sordo. From the field notes of Palitos Blancos, it appears that Trimble considered the old original northwest corner of the Agua Nueva de Arriba as being the same as the southeast corner of Palitos Blancos.

Upon the trial, Douglas testified as follows : “Going to the southwest corner of San Antonio Baluarte grant, which is now recognized as the southwest corner, running east 2900 varas and running south 9500 varas for the southeast corner of Pal-itos Blancos and the northwest corner of Agua Nueva grant, calculating a tie as called for running north 20 deg. 4T West, 19,985 varas, would place the northeast corner of El Sordo grant 308 varas south and 1040 varas east of its present recognized position.”

We therefore conclude that no part of Survey 1009 is included within the boundaries of the Sordo.

As indicated on the map showing the location of Survey 1009, the east part thereof is within the boundaries of the Vibor-itas if Douglas’ survey following in the footsteps of Lara be taken as establishing the true west boundary line of the Vibor-itas. In our opinion Douglas’ re-survey does establish the true west line of the Viboritas, unless it can be said that ap-pellee is restricted to the Martin (patent) survey, under the rule stated in Kenedy Pasture Company v. State, Tex.Civ.App., 196 S.W. 287, loc. cit. 293. This rule is clearly one of estoppel. The Martin survey was made as a result of certain court proceedings evidently instituted under the Act of February 11, 1860, as amended by Sp.Laws 1862, p. 46. Appellant here takes the position that these proceedings were void under the holding of Texas-Mexican Ry. Co. v. Jarvis, 80 Tex. 456, 15 S.W. 1089. The Martin field notes therefore cannot be made the basis of an estoppel in favor of appellant and against appellee in this particular, and appellant does not •so contend in his brief filed' in this Court.

Appellant’s motion for rehearing is .granted to the extent herein indicated; ap-pellee’s motion for rehearing is overruled. The original opinion is withdrawn and this •one substituted therefor. Leave is hereby .granted the parties to file second motions for rehearing should they desire to do so. The trial court’s judgment in so far as it awards to appellee that part of Survey No. 1009, lying east of the west line of ■the Viboritas, as established by Douglas following the Lara field notes, is affirmed. In all other respects the judgment of the trial court is reversed and judgment here rendered that appellant recover all of Survey No. 1008, and that part of Survey No. 1009 lying west of the west line of the Viboritas as established by Douglas following the Lara field notes. Costs are taxed against appellee.

Affirmed in part; reversed and rendered in part.


source: Caselaw Access Project

author: SPEER, Justice. BROWN, Justice

license: Public Domain

text:
    CORONA PETROLEUM CO. et al. v. JAMESON et al.
    No. 14146.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1940.
    Rehearing Denied Jan. 17, 1941.

      Sam Billingsley and Richard Owens, both of Fort Worth, for appellants.
    Bryan, S.tone, Wade & Agerton, of Fort Worth, and A. K. Doss and Sayles & Sayles, all of Abilene, for appellees.
   SPEER, Justice.

The parties to this appeal will bear the same designation as in the trial court. Plaintiffs, Mrs. P. Jameson, a widow, Bar-to Jameson and Landy Jameson, the last-named plaintiffs being sons of Mrs. P. Jameson, instituted this suit against Corona Petroleum Company, a corporation, the Western Oil Corporation, a corporation, J. W. Meeker and J. R. Meeker, as defendants, seeking to recover on three drafts drawn by J. W. Meeker on Corona Petroleum Company, one for $1,000, in favor of Mrs. P. Jámeson, one for $750, in favor of Barto Jameson, and one for $375, in favor of Landy Jameson.

It is alleged that defendants were partners in the oil business, and in the transactions involved in this suit; that at about the date of the issuance and acceptance of the drafts, J. W. Meeker, acting individually and as agent and representative of his co-defendants, entered into an agreement with plaintiffs to purchase certain oil and gas leases on lands situated in Fisher County, Texas. That the title to said leases was to be taken in the name of Corona Petroleum Company, but -that all other defendants were in fact jointly interested with that company therein; that all acts of the Corona Petroleum Company were for its own as well as the interest of all said defendants, and in furtherance of the partnership existing between them, each agreeing to share in the profits and losses sustained by reason thereof.

That each of the plaintiffs did-execute his respective oil and gas lease to Corona Petroleum Company, covering the lands described in each instrument; drafts were drawn by said J. W. Meeker against Corona Petroleum Company for the leases, in the amounts above indicated; each of the drafts bore date of about January 1, 1938, and was to be paid, “subject to acceptance of title by drawer to property described hereon.” Drafts with the respective leases attached were deposited in a bank at Hamlin, Texas, for collection. Some days later they were all returned to the receiving bank, unpaid.

Plaintiffs alleged that they agreed to and did furnish to Meeker 'such abstracts of title as they had in their possession and that Meeker knew the date to which they were extended; that Meeker then agreed that defendants would procure, at their own expense, any additional abstracts or supplements desired by them. That defendants never did thereafter procure additional abstracts, nor did they thereafter make any obj ections to plaintiffs’ titles; that such failure estopped them from denying liability on the drafts, because of the endorsements thereon. That defendants were liable for the sums mentioned in the drafts, together with interest at six per cent per annum, for which amount they prayed judgment against all defendants, jointly and severally.

Defendants answered that the plaintiffs should not recover because their pleadings disclosed that their cause of action was for the breach of an oral contract to convey an interest in land and was in violation of Article 1288, R.C.S., and of our statute of frauds. There was a general demurrer and special exceptions, which were overruled, of which ruling no complaint is made. They also plead the general denial, and specially that Corona Petroleum Company did propose to purchase said leases subject to its acceptance of title, for itself, on condition that a certain block of leases embracing those of plaintiffs’ could be procured. That plaintiffs agreed to furnish to that company abstracts of title to their respective lands, but only furnished partial abstracts ; that the company notified each of the plaintiffs on about January 26, 1938, that it did not accept the titles, that it was returning their partial abstracts, and had ■declined payment of the drafts. That defendants, J. W. Meeker, J. R. Meeker and the Western Oil Corporation, had no transactions whatever with plaintiffs, and prayed that they be not held liable in plaintiffs’ suit.

There was no verified denial of the partnership, nor other denial than as above indicated.

The testimony adduced indisputably ■shows that J. W. Meeker, who handled the transaction with plaintiffs, did agree orally to accept the partial abstracts then in the possession of plaintiffs, and would, if desired, examine the records of Fisher County, or have it done, or procure, at his own expense, any additional supplemental abstracts desired, and that if any objections were found to the title, plaintiffs would be notified and they were to be cured by plaintiffs. These matters were testified to by plaintiffs and were corroborated by the local banker, a Mr. Russell. Mr. Meeker, though present at the trial, as indicated by the record, did not testify.

Special issues were propounded to the jury, inquiring if such oral agreements were had, in regard to each of the leases, and affirmative answers were given. Judgment was entered for plaintiffs for the amounts prayed for against the four defendants named, jointly and severally. Motion for new trial was overruled and this appeal perfected by all defendants.

Defendants’ briefs present nine propositions, based on appropriate assignments of error. Their first proposition reads: “The trial court erred in overruling defendants’ plea of- the Statute of Frauds, because the statute provides that a parol modification of a written conditional contract for the purchase of an oil and gas lease is unenforceable unless the promise or agreement, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized.”

We find nothing in the statute of frauds, Article 3995, R.C.S., pertaining to the “modification” of a written conditional contract for the purchase of an oil lease, as announced in the proposition, but we are considering the point as though it properly referred to the language contained therein; nor are we noticing defendants’ allegations that they relied upon Article 1288 in connection with their plea of the statute of frauds. The statute of frauds prohibits the bringing of any action (Sec. 4) “upon any contract for the sale of real estate or the lease thereof for a longer term than one year. * * Unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized.”

It is not contended that J. W. Meeker was without authority to negotiate for the oil leases, and to make the drafts on Corona Petroleum Company, in the manner they were made, with leases attached, drafts to be paid according to their provisions. These conditional drafts were for the purpose of paying the contract price agreed upon for the leases, when title was accepted. The drafts were sufficient mem-oranda of the contract for the leases for a longer term than one year, and relieved the deal of the vice inhibited by the statute of frauds. Steinberger Petroleum Corp. v. Whitley, Tex.Civ.App., 105 S.W.2d 727, writ dismissed. Moreover, it is not necessary under the statute that the written memorandum provided for therein shall recite all the terms of the agreement, for it is the contract, some parts of which may be oral, that is to be enforced, and this may be done if a memorandum thereof in writing is had and signed by the party sought to be bound. The memorandum need not contain all the terms of the contract. “It is not the compliance with the statute that constitutes the contract. The statute presupposes its legality and enforcement of which only is suspended unless the contract or some memorandum thereof be reduced to writing and signed by the party to be charged therewith.” Leverett v. Leverett, Tex.Civ.App., 59 S.W.2d 252, 254, writ refused; Simpson v. Green, Tex.Com.App., 231 S.W. 375. We see no error presented by this proposition and it is overruled.

Appellants’ propositions 2, 5, 6, 7, 8 and 9 challenge the act of the court in sustaining appellees’ motion for judgment non obstante veredicto against J. W. Meeker, J. R. Meeker and Western Oil Corporation. The several propositions present as many reasons why the contention is made.

As we construe the record, at the conclusion of taking testimony, the court embraced in his charge to the jury an instruction for a finding against plaintiffs and in favor of three of the defendants, viz., J. 'W. Meeker, J. R. Meeker and Western Oil Corporation, and proceeded to submit special issues to ascertain whether or not J. W. Meeker, who negotiated the whole deal with plaintiffs, agreed orally with them that if additional abstracts of title were desired by Corona Petroleum Company, they would be procured by him at the expense of the company. Objections were made by defendants to the submission of these issues, upon the ground that such inquiries would necessarily elicit answers, which would be to give effect to testimony varying,the contents of the written instruments upon which suit, was brought. What we have said above in connection with the proposition which raises the conditions of our statute of frauds disposes of these objections and exceptions to the charge against the contention made.

The points raised relative to sustaining the motion notwithstanding the directed verdict given in favor of the three named defendants has given us much concern. Evidently the trial court instructed the verdict in favor of those defendants upon the theory that the evidence in no way connected them with the transaction. But, by having his attention called to the fact that there was an allegation of partnership between all defendants, and that there was no verified denial interposed in the answer of either defendant, and the jury having found in response to the issues against the contention of the one defendant, Corona Petroleum Company, alleged to be a member of a partnership, the directed verdict in favor of the other three defendants was disregarded and the motion sustained, resulting in a joint judgment being entered against all defendants.

Our courts have uniformly held that when an action is brought against parties alleged to compose a partnership, and no denial of partnership is made under oath, as provided by section 6 of Article 2010, R.C.S., the allegation of partnership is taken as confessed. That if no such verified denial is interposed, no testimony need be offered by plaintiff to prove the allegations made, and no testimony controverting the allegation of partnership may be offered in the absence of such a verified denial in the pleadings. The object of the statute was to require a denial under oath of partnership when charged in the pleadings of plaintiff before an issue of fact on that point is raised. Absent such an issue of fact, no proof need be offered to establish it. It is confessed by defendants and requires no1 proof by plaintiff in support of the allegation. I. & G. N. Ry. Co. v. Tisdale, 74 Tex. 8, 11 S.W. 900, 4 L.R.A. 545; G. C. & S. F. Ry. Co. et al. v. Edloff, 89 Tex. 454, 34 S.W. 414, 35 S.W. 144. Other holdings to the same effect by Courts of Civil Appeals, in which applications for writs of error were dismissed, are: Geiselman v. Andreson, Tex.Civ.App., 242 S.W. 798; Oil Well Supply Co. v. Texanna Production Co., Tex.Civ.App., 265 S.W. 203; Wichita Valley Ry. Co. v. Brown, Tex.Civ.App., 270 S.W. 1112; Terrell v. Wainwright, Tex.Civ.App., 87 S.W.2d 1114.

As indicated, the above cases hold that when a partnership is alleged and there is no denial under oath, the allegation stands confessed and no necessity remains with plaintiff to make proof of that fact. But we do not understand that they go so far as to hold that this confessed fact will support a judgment against one partner for the wrongful acts of another, without additional proof tending to connect both or all with the transaction. It would be absurd to say that when two or more persons are shown to be partners in a particular business, that all are .liable for the acts of one, whether connected with the copart-nership business or not. To hold all members of a partnership liable jointly and severally, it must be made to appear from the evidence that the wrongful acts of the offending one were, in law, authorized by the partnership, or were done in the performance of something connected with the furtherance of the interests of the copart-nership; these things may be proved by direct or circumstantial evidence. If it could be said that there was any evidence tending to make J. W. Meeker, J. R. Meeker and the Western Oil Corporation liable as partners for the wrongful acts of their partner, Corona Petroleum Company, it came from the plaintiffs themselves; they being interested parties, when not corroborated, only issuable questions of fact for jury determination were presented. Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916; Texas Cotton Growers Ass’n v. McGuffey, Tex.Civ.App., 131 S.W.2d 771, writ dismissed; Texas Employers’ Ins. Ass’n. v. Roberts, Tex.Com.App., 139 S.W.2d 80.

When a jury trial is demanded, as was done in this case, the court may not withdraw the fact issues from the jury and direct a verdict, if there is any evidence of a substantial nature to the contrary. It is true that plaintiffs all testified that they knew nothing about J. R. Meeker and the Western Oil Corporation being interested in the transaction at the time, but did say that J. W. Meeker promised to procure such additional data concerning the title as he desired, at his own expense, and that both he and his brother, J. R. Meeker, were the principal owners of Corona Petroleum Company; this would not bind them personally for the liability of Corona Petroleum Company, a corporation, but still whether or not the Petroleum Company was acting in the matter for the other alleged partners would have to be shown before they could be held jointly and severally for its acts. It is only by virtue of the provisions of Article 2211, R.C.S., Vernon's Ann.Civ.St. art. 2211, that the court may disregard the jury verdict, or any part of it, and render judgment non obstante veredicto. The motion sustained by the court in this case was to disregard' that part of the verdict rendered in response to the court’s direction, and was not to disregard any particular special issue finding. In sustaining the motion to disregard the verdict directed by the court, the result was that judgment was entered against all defendants, based solely upon the ground that it was established by the rule of law mentioned, that all were partners ; this was done without any jury finding that the alleged wrongful acts of Corona Petroleum Company were in any way connected with the business in which all were partners.

In Peveto v. Smith, 134 Tex. 308, 133 S.W.2d 572, by Commission of Appeals, adopted by the Supreme Court, a very similar situation to the one before us was involved. Smith sued Peveto and Jackson, as partners, alleging a cause of action growing out of the negligent acts of Peve-to while -performing duties in the interest of the partnership, resulting in the death of the plaintiff’s son. The opinion by the Court of Civil Appeals, 113 S.W.2d 216, discloses that no verified denial of partnership by either of the defendants was made. There, as in this case, the trial court directed a verdict against plaintiff and in favor of Jackson, one of the alleged partners. The case was then submitted to. the jury on special issues as to liability of •Peveto, the other partner. Upon the verdict returned by the jury, the court entered judgment against both Peveto and Jackson, as was done in this case on the motion for judgment non obstante vere-dicto. In disposing of the defendants’ appeal from that judgment the court, at page 577, said: “It further appears that the judgment which the trial court finally entered in the case — being the judgment from which this appeal is prosecuted — is based on the fact findings made by the jury in response to special issues submitted- to them a.'i between the plaintiff and Peve-to alone. The said final judgment appears in the transcript and same appears to be against both Peveto and Jackson, individually, without reference to the alleged partnership relation. In this . situation, nothing to the contrary appearing, the only reasonable conclusion we can draw is that no fact question raised by the evidence, concerning Jackson’s liability, was submitted to the jury for determination, and that the fact findings made by the jury involve the plaintiff and Peveto alone. Obviously, in this situation, the fact findings made by the jury have no more binding force on Jackson than if he were never a party to the suit. The judgment which the trial court finally entered in the case was effectual as against Peve.to, individually, but wholly ineffectual as against Jackson in any respect. From whatever angle the situation is viewed, it. appears that the judgment which was entered against Jackson has no support from the jury verdict in the case, and is, therefore, erroneous. See Frank v. Tatum, 87 Tex. 204, 25 S.W. 409; Glasscock v. Price, 92 Tex. 271, 47 S.W. 965.”

In the case from which we have last quoted, the court affirmed the judgment rendered against Peveto, but reversed the judgment entered against Jackson and rendered one in his favor. We can see no material difference in the points discussed in that case and the instant one.

Fourth proposition asserts that the trial court erred in admitting the testimony of the witness Russell, to the effect that just prior-to the execution by plaintiffs of the oil and gas leases and the drafts by Meeker, the parties agreed orally, that Meeker ivas to accept for Corona Petroleum Company the base abstracts then held by the plaintiffs, and that if he desired additional abstracts or supplemental ones, he would procure them at his own expense. Defendants objected to the introduction of that evidence upon the ground that it tended to vary the terms of the written leases and drafts. There is no error shown in the matter, since the leases and drafts did not purport to cover the things about which the witness testified, nor did they purport to cover all transactions and agreements relating to procurement of abstracts of title — the drafts sued on were sufficient memoranda in writing of a contract concerning the sale of real estate or a lease thereon for more than one year to take the transaction out of the statute of frauds. This being true, there was no error shown in admitting evidence of what the contract was, when the written' memoranda did not purport to show all of its terms. The witness testified to the same things here complained'of, on cross-examination, as did all of the plaintiffs oh direct and cross-examination, without objection by defendants. The contention here presented is overruled. .

We have not discussed singly the various propositions; but have studied them all; those which challenge the court’s action in entering judgment for causes other than those next hereinafter mentioned are overruled. Those which complain of the sustaining of plaintiffs’ motion to disregard the verdict returned in response to the court’s direction because a partnership was shown to exist between all parties, are sustained. We hold that no judgment should have been entered against the two Meekers and Western Oil Corporation, in this case, solely upon the ground that a partnership was established between them and Corona Petroleum Company. The same rule applied by the Supreme Court in Peveto v. Smith, supra, is controlling here.

Our authority to reverse and render judgments of the trial court is not the same as that of the Supreme Court; there are conditions under which it becomes our duty to reverse judgments entered'below and to render such one as should have been entered, but they are not apparent here. We therefore deem it our duty to reverse and remand the judgment entered against the defendants, J. W. Meeker, J. R. Meeker and the Western Oil Corporation, rather than reverse and render one for those defendants. See Williams v. Safety Casualty Co. 129 Tex. 184, 102 S.W.2d 178; Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031; Sun Oil Co. v. Gunter, Tex.Civ.App., 125 S.W.2d 338.

For the reasons stated, the judgment against Corona Petroleum Company is affirmed, and that against J. W. Meeker, J. R. Meeker and Western Oil Corporation is reversed, and the cause remanded for another trial. It is so ordered.

BROWN, Justice

(concurring).

This writer is of opinion that, when the trial court gave the jury an instructed verdict in favor of the defendants J. W. Meeker, J. R. Meeker and Western Oil Corporation, all of which appears in the court’s charge and on which charge the jury, agreeable to the court’s instruction, returned a verdict for said three defendants, the trial court, even though he later determined that he had erroneously so instructed the jury, had no authority to ignore, or set aside, that verdict and render judgment against all of the defendants upon the strength of the verdict which disposed of issues that support a judgment only as against the defendant who is involved in the fact issues that were submitted.

The writer is of opinion that the trial court had authority only to set aside the verdict and to order a new trial.

The judgment as against J. W. Meeker, J. R.* Meeker and Western Oil Corporation is manifestly erroneous because, under Art. 2211, Vernon’s Civ.Statutes, which statute provides the only right and power of a trial court to render judgment notwithstanding the verdict, it is distinctly stated that “the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may * * * disregard any Special Issue Jury Finding that has no support in the evidence.”

Taking the first part of this statute, it is obvious that the judgment is erroneous if bottomed on that provision.

The only theory, under the forepart of the statute, whereupon the trial court had the authority and power to render judgment against these three defendants notwithstanding the verdict that was returned is that the trial court should have given the jury an instructed verdict in favor of the plaintiffs as against these three defendants.

It is obvious that this could not be done because there could not be, in the very nature of the suit before us, even on the theory of the plaintiffs, any liability on the part of these three defendants unless and until a verdict was returned warranting a judgment against the fourth defendant, whose liability must be measured by the findings of the jury on the issues that involved such defendant.

The writer does not believe that any one could reasonably contend that the trial court should have instructed the jury to find for the plaintiffs as against these three defendants, in this case, where the liability of such defendants rests solely upon the theory that they are liable because the plaintiff alleged that all the defendants are partners and these three defendants neglected to deny the existence of such partnership under oath.

Let us take the second and latter portion of this statute, and we reach the same conclusion.

How can it be said that the trial court could disregard the instructed verdict which was directed by the court in favor of these three defendants, under this statute?

In ■ the first place, this verdict, rendered by the jury at the request of the trial court, is not such a “special issue jury finding” as is contemplated by the statute. Therefore the latter portion of the statute can have no application here. But, going a step further, if it be conceded that this peremptorily instructed verdict is a “special issue jury finding”, then the trial court was without authority and power to “disregard” it on the theory that it “has no support in the evidence.”

On the contrary, the evidence abundantly supports the instructed verdict given these three defendants. Edmiston v. T. & N. O. R. Co., 138 S.W.2d 526 (Commission of Appeals, opinion -adopted by Supreme Court), and cases cited; Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d 7 (Commission of Appeals, opinion adopted by Supreme Court), and cases cited.

With the above observations I heartily concur in the conclusions reached, as is disclosed by the opinion prepared for the court by Mr. Tustice SPEER.


author: GRISSOM, Justice. FUNDERBURK, Justice

text:
    BRAZOS RIVER CONSERVATION AND RECLAMATION DIST. et al. v. REESE et al.
    No. 2142.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 3, 1940.
    Rehearing Denied Jan. 3, 1941.
    John D. McCall, Millard Parkhurst, and Strasburger, Price, Holland, Kelton & Miller, all of Dallas, T. T. Bouldin, of Mineral Wells, and Samuels, Foster, Brown & McGee, of Fort Worth, for appellants.
    J. R. Creighton and Ritchie & Ritchie, all of Mineral Wells, for appellees.
   GRISSOM, Justice.

This is an appeal from an order of the County Court of Palo Pinto County, temporarily enjoining the defendants Brazos River 'Conservation and Reclamation District et al. from taking the property of plaintiffs, J. C. Reese et al. by closing the temporary openings in Possum Kingdom Dam and flooding the properties of plaintiffs, and from condemning plaintiffs’ lands until it had been judicially determined in said cause whether or not the Brazos River District has the right to condemn certain alleged excess- properties and acreage. In this connection it was alleged that about 700 actes of the land lay above and outside the limits of the proposed reservoir; were not needed for the purposes of the District; that defendants intended to take said land for the benefit of the State Park Board, and that such threatened action was arbitrary and capricious and should be enjoined. Plaintiffs, among other things, alleged that their properties had not been purchased by the defendants, nor subjected to reservoir use by the power of eminent domain, and that plaintiffs had not relinquished their rights of ownership therein, and had received no remuneration of any character for the use of said properties by the District. Plaintiffs alleged that on the 23rd day of April, 1940, the defendant District filed its petition and statement in writing with the County'Judge of Palo Pinto County, Texas, seeking the condemnation of plaintiffs’ lands; that the County Judge appointed Commissioners to assess the damages in-the manner and form required by law; that the Commissioners qualified; that the Commissioners set said .proceeding for hearing and gave notice thereof; but, the District had not further prosecuted said action, and had made no deposit in the court of any award therein.

“That upon the filing of the said petition or statement in writing by the said District seeking the condemnation of the said properties, and the assessment of the damages to the several -owners as provided by law, the County-Court of Palo Pinto County, Texas, was then and thereby vested with exclusive jurisdiction and with the right, power and authority to hear and determine all issues, ■matters and things relating to the right of the said District to condemn the said properties or any part thereof or any estate therein and all matters affecting the rights of the parties to said proceeding; and that said court now has complete and exclusive jurisdiction in the premises, including the right to make such orders and issue such writs or other process as may be necessary for the protection of the owners of the properties pending the determination of all matters involved in the said cause and proceedings.”

Plaintiffs alleged that defendants were preparing to close the openings in the dam and flood and take plaintiffs’ lands and would do so within a few days unless restrained; that there was insufficient time for the giving of notices to defendants of the application for injunction. Wherefore, plaintiffs prayed' that a temporary writ of injunction issue enjoining defendants from closing said openings and from flooding the lands and properties of these plaintiffs, until the completion of a hearing before the Commissioners as to the damages that will accrue to plaintiffs in connection with the condemnation of such estate' in, and such quantity of plaintiffs’ said properties as it may be found the District has the right to condemn; and the depositing of the sum or amount of award of such Commissioners as the law requires, etc.

A temporary injunction was granted (without notice or hearing) as prayed for.

The defendants’ first proposition is as follows : “In condemnation proceedings, the jurisdiction of the County Court is not invoked until an award of the Commissioners has been filed with the County Judge, and objections and exceptions thereto have been filed with the Clerk of the court; and where, as in the instant case, the petition in the action upon which an injunction is based, discloses upon its face that in the condemnation proceedings nothing had been done, except the filing with the County Judge of an application for condemnation, the naming of commissioners by the County Judge to assess damages, and that no hearing had been had before the commissioners, and no award had been made, and no objections and exceptions to any award had been filed, the County 'Court of Palo Pinto County, Texas, had no jurisdiction of the subject matter, and the issuance of the injunction by the Judge thereof, was outside the powers and jurisdiction of the court, and was a void act.”

The defendants state the question to be determined by this court as follows: “The jurisdiction of the County Court of Palo Pinto County to entertain the instant suit and the authority of the County Judge to issue the challenged injunctive order is determined by this question: whether or not the condemnation proceeding had progressed to a point sufficient to clothe the County Court with jurisdiction of the subject matter.”

In Gulf, C. & S. F. Ry. Co. v. Fort Worth & R. G. Ry. Co., 86 Tex. 537, 26 S.W. 54, 60, the facts were (1) the defendant had presented to the County Judge of Brown County a petition for condemnation of plaintiff’s land; (2) the County Judge had appointed Commissioners; (3) the Commissioners had qualified; (4) notice was given of the time and place when the parties to the condemnation proceeding would be heard; and (5) the Commissioners made their report assessing damages. There was no further action in the 'condemnation proceedings. No exceptions were filed to the Commissioners’ report and no judgment was entered.

Four days after the Commissioners made their report the defendant in the condemnation proceedings filed a petition in the District Court for an injunction restraining the plaintiff in the condemnation proceedings from using its land, etc. The District Judge granted the writ but thereafter dissolved the injunction. The defendant in the condemnation proceedings filed an amended petition alleging all the foregoing facts, making copies of the papers in the condemnation proceedings a part of the petition, and alleged that the Commissioners appointed by the County Judge were interested in the result of the proceeding and their award in same was void. The defendant therein (plaintiff in condemnation) filed a demurrer and special exception to said pleading to the effect that plaintiff’s petition showed upon its face “that the County Court of Brown County had acquired jurisdiction of the subject-matter of the suit before this suit was filed.” (Italics ours.) The demurrer was sustained > and, plaintiff declining to amend, the case was dismissed. The plaintiff appealed to the court of civil appeals (where the judgment of the district court was affirmed), and thence to the Supreme Court. There the plaintiff-in-error (defendant in the condemnation proceeding) contended the condemnation proceeding in the county court was void. The Supreme Court held that the county court had jurisdiction of the subject-matter of the suit. Judge Brown, speaking for the court, said:

“Under the law, the award could not be made the judgment of the court until after the expiration of 10 days from the time it was returned into court, and, during that time, plaintiff, by filing objections to it, would have been entitled to a trial de novo before a jury, by which objections it would have set aside the award, and thus have secured ample protection before the county court, with the right of appeal to the court of appeals if its rights were not fully protected by the judgment o'f the county court.
“Having failed to avail itself of so simple and effective a remedy, we see no reason why the rules of law by which such proceedings are held to be binding upon ■ parties to them, when duly notified, should be departed from, and a collateral attack allowed to be made upon the proceedings of a court of competent jurisdiction,
“There is no error in the judgment of the district court or court of appeals, and the judgments of those courts are affirmed.” (Italics ours.)

In Ellis v. Houston & T. C. Ry. Co., Tex.Civ.App., 203 S.W. 172, 174, writ refused, the facts' were that the Railroad Company (1) filed with the County Judge a petition in writing seeking to condemn Ellis’s land. (2) The judge appointed commissioners to assess the damages; (3) the commissioners, after being duly sworn, appointed a time and place for a hearing and (4) issued notices; (5) which notices were served. Before the date set for the commissioners’ hearing the land owner, Ellis, instituted suit in the district court to enjoin the commissioners from proceeding with said hearing to assess damages and to enjoin the Railroad from taking further steps to condemn his property. Upon a hearing in the district court plaintiff’s application for writ of injunction was refused. Ellis appealed. Ellis contended, among other things, that the County Court had not acquired jurisdiction to assess damages and decree a condemnation of his land and that Ellis’s land was not subject to condemnation because it was being used as a cemetery. The court said:

“It is insisted that, as the county court has no jurisdiction of the condemnation proceedings for each of the two reasons alleged and noted above, the proposed condemnation, if effected, will be null and void,, and hence the district court has jurisdiction to enjoin the same in advance. Appellant has cited Gulf, C. & S. F. Ry. [Co.] v. Fort Worth & R. G. Ry. [Co.], 86 Tex. 537, 26 S.W. 54, to support the proposition that the enforcement of a judgment of condemnation of land which is absolutely void may be enjoined by the district court. The same can be said of any other character of judgment. A judgment of the county court condemning property for uses by the railway company has no such special features as would distinguish it from other judgments, so far as that question may be involved. It is well settled that allegations of jurisdictional facts relating to the subject-matter of the suit, contained in a petition, of themselves, confer jurisdiction to determine the controversy presented, and that such jurisdiction will be retained by the court until the defendant alleges and proves that those allegations were made for the fraudulent purpose of conferring jurisdiction. Hoffman v. Cleburne B. & L. Ass’n, 85 Tex. 409, 22 S.W. 154.
"As the application filed by the railroad company in the county court contained allegations of all facts necessary to confer upon the county court jurisdiction ta determine the issues involved in the proposed condemnation, the filing of the application immediately fixed jurisdiction. Furthermore, the good faith of those allegations was not attacked by Ellis, either by pleading or by proof.
“Appellant’s contention that the proposed proceedings in the county court will be void for lack of jurisdictional facts, and that the district court had the right to determine in advance of the county court those jurisdictional issues, is predicated upon the assumption that the court of equity can restrain the exercise of a clear unconditional right to condemnation proceedings in another court expressly conferred by statutes the constitutionality of which is not even-challenged, and we think it too clear for argument that a court of equity has no such power. As the county court acquired jurisdiction to determine the controversy, and as it had exclusive original jurisdiction to try and determine it, that court’s jurisdiction so to do could not be ousted by the district court.” (Italics ours.)

In Wilson v. Donna Irrigation District No. 1, Tex.Civ.App., 8 S.W.2d 187, 188, writ refused, Wilson instituted suit in the district court to obtain a temporary injunction restraining the Irrigation District from prosecuting condemnation proceedings in the county court and from taking possession of his land, etc. It was alleged that the District had the power of eminent domain and had (1) filed condemnation proceedings in the county court; that the county court had (2) appointed commissioners, and (3) a heai ing before the commissioners had been set. Plaintiff, among other things, alleged that the land was outside of the limits of the Irrigation District; that his land was not necessary for the purpose of the District, but was sought to be condemned by the District for the purpose of benefiting an individual, and that the District was about to take his land in the condemnation proceedings of the county court for the private use of said person. The petition for injunction in the district court was excepted to because “it appeared on its face that the county coiirt of Hidalgo county had acquired jtirisdiction of the cause. * * *.” The exception was sustained, the injunction dissolved and the cause dismissed. In affirming the judgment of dismissal, the court said:

“Under the laws of Texas, the irrigation district, as a political subdivision of a county, had the power of eminent domain, and the mode is fully provided for, exercising such power by entering the county court of the county in which the land or a part thereof is situated. No other court is given the authority to initiate proceedings or to have them executed, except the county court, and all proceedings before the county judge are fully set out in title 52 of the Revised Statutes of 1925. The right of appeal is given from the county court as in other cases. Article 3268. Admittedly, when appellee complied with the statute, as alleged, and entered the county court of Hidalgo county, that court obtained jurisdiction of the‘subject-matter, and the coimty judge has full authority to pass on all questions that might arise in the case. If an individual had begun condemnation proceedings, it cannot be reasonably contended that the county court would have the power to deny him the right of condemnation and refuse to appoint commissioners to assess damages. Neither can it be reasonably contended that the county judge could not decide whether the purpose for which it is sought to condemn the land was legal or not. The statute would be enacting a farce by requiring that a statement in writing be filed with the county judge describing the land sought to be condemned, stating the purpose for which it is intended to be used, the name of the owner, and that the parties have been unable to agree upon the value of the land or the damages, if the county jiüdge was compelled to proceed without the power to inquire into the truth of the statements made and act judicially thereon. If he is not clothed with judicial discretion in these matters, the duties might be performed by the clerk as well. No case has been cited by appellant, nor has a diligent search by this court revealed the issuance of an injunction, to restrain the action of the county court in a prima facie legal condemnation suit, and to pass upon issues which might be submitted to the county court. Appellant has the opportunity to be heard on all the matters raised by him as to the legality of a condemnation of his land for the purposes alleged by him. If he should not be satisfied with the. action of the county court in the premises, he has the right of appeal, where he can present all the defenses sought to be made the basis of the issuance of a writ of injunction. If the ditch sought to be dug is not for a public use, the presumption will prevail that the county court will not countenance the condemnation of the land. If there is no necessity for appropriating the land, the presumption is that the county court will not permit its appropriation. If the court, however, permits the appropriation of the land in defiance of appellant’s rights and the Constitution and laws, appellant can obtain redress by an appeal.
“It is admitted by appellant that appellee made a perfect case for securing a hearing before commissioners appointed by the county judge. In other words, the admission is that the allegations of appellee conferred jurisdiction on the county court, but appellant is not willing to meet those .issues in the court which has the statutory right to hear them, but seeks to answer the suit of appel-lee by resort to' a court of equity not given the authority to try suits for condemnation of property. It is true, as stated by appellant, that the district court is one of general jurisdiction, but, when a statute confers a special jurisdiction on another court, that deprives the district court of its general jurisdiction over the subject-matter. The jurisdiction of the county cotirt had attached, and, up to the time appellant sought to enjoin action of that court, had taken no step not sanctioned by law. The district court cannot, by injunction or otherwise, deprive the county court of its jurisdiction. No court in Texas has ever upheld interference with the lawful exercise of its jurisdiction by the county court over condemnation suits. All the cases in which injunctions have issued to restrain condemnation proceedings were those in which county courts had violated the law and exceeded their jurisdiction. In this case the proceedings are prima facie legal and regular, and the proceedings are not assailed and sought to be prevented on account of any irregularity on their face, but on account of defenses which appellant may present against condemnation of his property.” (Italics ours.)

In Housing Authority of City of Dallas v. Higginbotham, Tex.Civ.App., 143 S.W.2d 95, 96, the Housing Authority instituted proceedings under the general condemnation statutes in the County Court at Law of Dallas County seeking to condemn property belonging to Higginbotham. The Court of Civil Appeals said that the allegations of the Housing Authority’s petition were sufficient to invoke the jurisdiction of the County Court as a proceeding in condemnation. It further said:

“ * * * the requisite steps having been taken by appellant in the County Court of Dallas County at Law No. 2 for the condemnation of the properties in question, pri- or to the filing of the suit for injunction, said County Court acquired sole jurisdiction and was the tribunal competent to hear and determine all questions sought to be litigated in the application for injunction. Because of this, the district court was without power to entertain the instant suit. The trial court’s action under review is therefore reversed, and judgment is here rendered for appellant, dissolving the injunction.” See, also, Roberts v. Magnolia Petroleum Co., Tex.Sup., 143 S.W.2d 79.

In Galveston, H. & S. A. Ry. Co. v. Mud Creek I. A. & M. Co., 1 White & W.Civ. Cas.Ct.App. § 394, Judge Willson, speaking of the filing of a petition for condemnation, said: “Under our statute, the written statement provided for by art. 4182 is the initiatory step, and it is by virtue of this step that jurisdiction over the subject matter involved is acquired.” In Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 479, 14 S.W.2d 266, 17 S.W.2d 774, Justice Critz quoted Judge Willson’s statement and said that it “very correctly” announced the applicable rule.

In Missouri-Kansas-Texas Ry. Co. v. Jones, Tex.Com.App., 24 S.W.2d 366, the court said: “Jurisdiction granted to county courts by the law of this state to hear and determine the condemnation suits by necessary implication includes the right to try and decide all questions which may fairly arise in such controversies, including the right to determine whether the existing facts authorize the exercise of the power thus conferred.”

It was there contended that in the condemnation proceeding then pending in the county court, the question of the right to condemn could not be determined, but that such question must be decided in the district court. Speaking of the authority in condemnation cases granted to the county courts by the Legislature, the court said:

“When it gave jurisdiction to county courts in such cases, it must be presumed that it was the intention to confer such authority as was essential and necessary to accomplish the purpose for which the power was conferred; that is, to determine, subject to appellate review, all questions legitimately involved in any condemnation case. We think such purpose becomes apparent upon a consideration of the provisions of subdivision 3, art. 326S, R.S.1925, to the effect that, if, upon a final trial in the county court it is determined that the right to condemn does not exist, the court shall so adjudge. This seems to plainly indicate a purpose to clothe the county court with power to determine the question as to whether under existing conditions a plaintiff has shown a right to condemn the property sought to be taken.”

The court further said: “The jurisdiction of the county court of Rockwall county having attached in the proceeding in which plaintiff in error’s land was sought to be condemned, and that court being clothed by law with full power to try and determine all issues raised by the railway company, the district court was without authority to enjoin the prosecution of such case; hence the Court of Civil Appeals properly ordered a dissolution of the injunction.”

See also the opinion of the Court of Civil Appeals in said cause, Jones v. Missouri-Kansas-Texas Ry. Co., 14 S.W.2d 357, 360, affirmed . Tex.Com.App., 24 S.W.2d 366, wherein it was held that the Legislature had conferred, and was authorized to confer, upon county courts exclusive original jurisdiction of eminent domain proceedings without regard to the value of the matters in controversy. That court said: “The county judge may also afford all needful protection to a litigant during the pendency of any suit over which his court has jurisdiction. This authority is expressly granted by article 1957 (1772) (1163) (1170), in the following language: ‘The county judge, either in term time or vacation, may grant writs of * * * injunction * * * and all other writs necessary to the enforcement of the jurisdiction of the court.’

“As jurisdiction of the county court of Rockwall county had attached to the subject-matter of the litigation prior to the institution of this suit, it will be permitted to retain the same to the end. * * *
“We hold, therefore, that the county court of Rockwall county has exclusive jurisdiction to try the condemnation suit and to determine therein all relevant issues, including the question on which the company is now seeking injunctive relief; that the district court was without jurisdiction to issue the writ.”

Also, see Gulf Coast Irrigation Co. v. Gary, 118 Tex. 469, 14 S.W.2d 266, 17 S.W.2d 774; Tarrant County v. Shannon, 129 Tex. 264, 104 S.W.2d 4, 9; Stemmons v. Dallas Power & Light Co., Tex.Civ.App., 212 S.W. 222, 224, writ refused; Bradford v. Texas Elec. Service Co., Tex.Civ.App., 16 S.W.2d 836; Lone Star Gas Co. v. City of Fort Worth, Tex.Civ.App., 68 S.W.2d 605.

The foregoing decisions by the Supreme Court, those approved by it, and the other cases cited, compel the conclusion that the condemnation proceedings vested the county court of Palo Pinto County with jurisdiction and power to issue the injunction appealed from. If the county court had jurisdiction of the condemnation proceedings so that it could protect its jurisdiction and the property rights of the appellees pending the final disposition of the condemnation proceedings, then it is immaterial that the value of the properties involved is alleged to be $15,000, and that appellees’ petition did not seek to recover a money judgment. Jones v. Missouri-Kansas-Texas Ry. Co., Tex.Civ.App., 14 S.W.2d 357, affirmed, Tex.Com.App., 24 S.W.2d 366; Southern Kansas Ry. Co. v. Vance, 104 Tex. 90, 133 S.W. 1043; Art. 1957. Therefore, appellants’ second and third propositions need not be discussed.

Defendants cite City of Big Spring v. Garlington, Tex.Civ.App., 88 S.W.2d 1095, and Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104, 1106, by this court. In the Garlington case a condemnation petition had been filed and the commissioners had been agreed upon but the county judge refused to appoint commissioners. An original petition for mandamus was filed in this court wherein it was sought to have this court compel the county judge to appoint commissioners. Our decision was merely to the effect that Art. 1824 which authorized courts of civil appeals to issue a “writ of Mandamus to compel a Judge of tjie District or County Court to proceed to trial and judgment in a cause” did not authorize us to compel said judge to appoint commissioners. The court could not at said stage of the proceedings have then proceeded to trial and judgment. We think said decision is not directly in point or controlling here.

In the Hardy case-the land owner, pending an appeal in a condemnation case, sought the issuance of an injunction by this •court. Objections were not -filed to the award of the commissioners within the time allowed by law. The sole ground upon which the injunction was sought was that the award of the commissioners was void because it failed to assess damages separately but the award was of a lump sum jointly to the several owners of the condemned land. We held that the defect in the award rendered the judgment “at most voidable and subject to correction in the trial of the ■case in the county court.” We further held that “whether voidable or void, compliance with the statute ( * * * art. 3268) as to making a deposit would authorize entry upon the land pending the disposition of the case on appeal to the courts.” We think there is nothing in that opinion which was necessary to its decision that is in conflict with this opinion, (there are statements therein indicative of a contrary opinion), but, if there is, said opinion is to that extent •overruled.

The judgment is affirmed.

FUNDERBURK, Justice

(concurring).

The writer fully concurs in the opinion of the court. Jurisdiction is a word of many meanings with the result that precedents and decisions involving jurisdictional questions are peculiarly liable to be misunderstood and misapplied. We are in the habit of saying that when a plea of privilege is filed the ■court has no jurisdiction of the case, other than to order a transfer,, unless and until a •controverting plea is filed. This, of course, is only true in a specially qualified sense. It is sometimes said that unless the record he filed’ in an appellate court the court has not acquired jurisdiction. That only means, of course, that the authority of the court to review the case upon its merits is subject to certain legally prerequisite steps which operate as conditions precedent to the authority of the court to determine questions involved' in the merits of the case. In either of said cases, the court does have jurisdiction in a sense. It has jurisdiction in the sense that a court has the inherent power by injunction to protect unlawful interference with its jurisdiction.

County courts have general jurisdiction of condemnation proceedings. Ordinarily, the exclusive jurisdiction of a civil suit is invoked and has its origin in the filing of plaintiff’s petition. In condemnation proceedings the statutes have the effect of providing otherwise. It is provided that “the party desiring to condemn the property * * shall file a statement in writing with the county judge of the county in which the Imd of a part thereof is situated(Italics ours.) R.S.192S, Art. 3264, Vernon’s Ann. Civ. St. art. 3264. The filing of such statement is not the institution of the suit in the county court in the ordinary sense. By' provision of the statutes it is the first step in proceedings of which the last step is a judgment by the county court of the same “county in which the land or a part thereof is situated.” Until objection to the award of the commissioners is filed it is true in a very real sense no suit or case is pending in the county court; but the whole statutory proceeding is idle and meaningless unless it is finally to culminate in a judgment of that court. The filing of objections to the award of the commissioners has an effect similar to that of the filing of a controverting plea to a plea of privilege. In the absence of any objections the jurisdiction of the county court will be restricted to making the award the judgment of the court. But the very fact that the award becomes the judgment of the court necessarily presupposes jurisdiction of the court in some sense. The filing of objections to an award, like the filing of a controverting plea to a plea of privilege, is a prerequisite step to the exercise of the court’s jurisdiction not in the sense of the jurisdiction which the court has the power and duty to protect against interference, but in the sense of authority to exercise real judicial power in determining the merits of the matters in controversy. It is manifestly just as essential that jurisdiction in the one sense be protected as jurisdiction in the other sense.

As respects the power of a court to protect its jurisdiction, the jurisdiction meant is that of the subject-matter, rather than the manner of its invocation. In the celebrated case of Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, jurisdiction of the subject-matter was held to be the subject of protection, • even if plaintiff’s petition was subject to a general demurrer. The jurisdiction held to be the subject of protection’ was declared by the court to extend so as to include the making of new parties.

Under the statutes the filing of the statement with the County Judge of Palo Pinto 'County was just as certainly the first step in proceedings looking to a final judgment of the county court of that county as plaintiff’s petition filed in the county court would be. It was a pre-emption of the jurisdiction of the county court finally to decide all matters in controversy according to the contingency provided for in the statute. The power and duty of the court to protect such jurisdiction was equally imperative, whether the judgment was to be merely the adoption of the award of the commissioners through acts in thems'elves ministerial, or was to result from a full hearing by the court as such in the exercise of real judicial power.

The jurisdiction which we had occasion to discuss in Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104, 1105, was simply that enlarged authority of the court which results from the timely filing of objections to an award. It was, as stated in the opinion, “the jurisdiction of the county court to correct errors in the aivard of the commissioners(Italics ours.) As further stated, the jurisdiction invoked by filing objections was “the jurisdiction of the court as such to determine the correctness of the award ." (Italics ours.) The question to be determined in this case was in no way involved in that case, and even in the absence of the language implying that the word jurisdiction was used in the particular sense, the very subject-matter of the issue before the court would show that the word was used in such particular sense.