text:
    CARTER et al. v. BRADSHAW et al.
    No. 5198.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1940.
    Rehearing Denied Feb. 19, 1940.

      Willis & Via, of Pampa, and G.' C. Har-ney, of Borger, for appellants.
    Joseph H. Aynesworth, of Borger, for ap-pellees.
   FOLLEY, Justice.

This is an appeal from a temporary injunction granted in a suit filed by the ap-pellees, R. M. Bradshaw and others, who are engaged in-the automobile business at Bor-ger, Hutchinson County, Texas, under the firm name of Bradshaw Motor Company, and dealing in the sale of Chevrolet automobiles, trucks, parts and repairs. The appellants are Carpenters’ Union No. 1201 of Borger, composed of some eighty members, L. G. Carter, who is its president, and other officers not necessary to mention, and W. A. Jones, who is a member of such union and alleged to be the agent thereof.

The appellees alleged that they are engaged in the automobile business in Borger, Texas, buying and selling automobiles, trucks, repairs and parts; that on or about the 25th day of August, 1939 one Jim Roban began the erection of a building in Borger under a contract with them in which building they expected to carry on their automobile business upon its completion; that under their contract with Roban they had no control of the selection of employees in the construction of such building; that the union engaged W. A. Jones to walk immediately adjacent to the building being constructed and that he carried placards on his breast and back containing the following: “Bradshaw Motor Company is Unfair to Organized Labor. Carpenters’ Union No. 1201”, or words of similar import; that such building was fast nearing completion and that when completed the ap-pellees would take charge of the same for their retail business; that the purpose of the conduct of the appellants was to force the appellees to discharge the said Jim Ro-ban and cause the latter to discharge his employees engaged in the erection of the building and to compel the appellees to breach their contract with Roban; that the appellants by their conduct intended to influence, direct and compel the appellees and all others to do their will and bidding; that the purpose of having W. A. Jones parade in front of such building was to warn all-people to keep away from appellees’ place of business and to prevent any and all persons from assembling in appellees’ place of business; that appellants were seeking to injure the appellees in the exercise of their personal rights and liberty and that the conduct of the appellants will interfere with the patronage of the appellees and cause them to lose trade unless the appellants were restrained in their unlawful conduct; that the appellants will continue through their conspiracy and by their joint efforts to harass and humiliate the appellees and restrain them in their business and that as a result thereof the appellees would from day to day and from time to time continue to suffer annoyance, mental and physical pain and financial loss unless the appellants were restrained from such conduct; that the appellants were insolvent, unable to respond in damages, and that appellees had no adequate remedy in law; and the ap-pellees prayed for a hearing and that the appellants be restrained of all conduct of the nature complained of and especially to be enjoined from parading near appellees’' building and calling attention of any person-seeking to visit said place of business. '

The appellants answered by general demurrer and general denial, and specially alleged that the appellees had agreed with Roban that in the erection of the building no union labor would be used; that no-union labor was being used in the work; that they duly protested to appellees against such discrimination; that thereupon a dispute arose between the appellants and the appellees as to whether any union carpenter could or should be employed upon the work; that the appellees failed and refused to arbitrate the dispute, whereupon the appellants procured W. A. Jones to picket the premises, instructing said Jones to do nothing more than walk in front of the building bearing the placard in question; that they requested Jones to act peacefully and not to interfere with any person or persons about the premises; that Jones .did not do anything which could be construed as the use of threats, force or violence; that the said Jones and the other appellants had not in any way threatened to boycott the appel-lees’ business or prevent any persons from there assembling; and that their sole attempt had been to peacefully persuade the appellees that the latter should he. fair to union labor.

A hearing was had before the court on November 8, 1939, the same day the pleadings of the parties were filed,, and thereupon the court issued the temporary injunction restraining the appellants from picketing the appellees’ place of business, patrolling the same with placards of any sort near enough to attract the attention of anyone passing, entering or leaving the building; and enjoining them from aiding, encouraging or procuring anyone else to do any of the acts complained of by the ap-pellees. It was further ordered that such temporary injunction should remain in force until January 29,1939 (presumably a clerical error and meant for 1940) at which time a further hearing should be had to determine whether the injunction should be continued or dissolved (Italics ours).

The appellants assert that under the pleadings and facts of this case the trial court was without authority to grant the temporary injunction herein and therefore abused his discretion in doing so. The ap-pellees contend to the contrary.

The testimony shows that R. M. Bradshaw, Ralph E. Randel and M. G. Weeth, appellees herein, are engaged in the automobile business in Borger as alleged by them. On August 21, 1939 they entered into a'contract with James J. Roban, a contractor, to erect for them a new building in the town of Borger into which they planned to move their business upon its completion. The contract called for the erection of the building according to the plans and specifications prepared by an architect named therein. The contractor was to furnish all the materials and perform all the work for a consideration of $10,500.

Before the written contract was entered into but while the negotiations were in progress in regard thereto, D'. M. Prater, manager of the local carpenters’ union and two other representatives of such order, called to see the appellee Bradshaw and inquired of him if he intended to give the contract to one L. P. James, a union contractor. Bradshaw replied that James had performed some work for him in the past which was unsatisfactory and that he intended to give the contract to Roban. The representatives then asked Bradshaw if he knew Roban did not employ union labor. Bradshaw replied that he did not know such to be true but he did know that Roban builds a “good honest house” and that Roban was the man he wanted. Bradshaw also informed these representatives' that he did not have anything to do with the employment of labor on the job. These representatives also called to see Roban about the same time and importuned him to use union labor in the construction of the building. Roban refused their request.

Some two days after the written contract was entered into between the appellees and Roban, the construction of the building began under the supervision of Roban, the contractor. The employees on the job were hired exclusively by Roban, the appellees having nothing to do with the hiring and having no supervision over their work. Ro-ban used only non-union labor in the construction.

The picketing of appellants began about the time the construction commenced and continued at intervals until- the time of the hearing on November 8, 1939. At first the picket carried placards -reading: “This job is unfair to organized labor”. About the time this picketing began, according to Bradshaw’s testimony, Prater returned to see Bradshaw and asked the latter to cancel his contract with Roban and employ union labor on the work. Bradshaw replied that he had already made a deal with Roban and there was ho use in further discussion of the matter.

On or about October 28, 1939, the appel-lees began moving t-heir equipment into the new building although the building was not then completed nor was the same entirely finished at the time of the hearing on November 8, 1939. After the appellees moved their equipment into the new building the wording-, on the placards carried by the picket of appellants was changed by the appellants to read ■ as follows: “Bradshaw Motor Company is Unfair to Organized Labor. Carpenters Union No. 1201”. This picketing continued for several:hours, each day up to the hearing, and the appellants admitted it was being done by their organization. They further admitted that they had planned .to have three or four pickets in front of the building on the day the appellees were to have their formal “opening”, which, as shown by the testimony, would have taken place some two or three days after the hearing on November 8th.

The purpose of the picketing as testified to by Prater and L. G. Carter, president of the local union, was to persuade the ap-pellees to recognize the rights of union labor, to show their disapproval of appel-lees’ conduct and to advertise that Bradshaw Motor Company was unfair to organized labor. The appellants further asserted by their evidence that no injury to the appellees was intended. Their evidence further revealed that the appellants possessed no property subject to execution. •

The testimony as a whole shows that the picketing of the appellants was entirely peaceful and orderly, there being no violence or trespass engaged in and no unlawful acts committed unless it could be said that the picketing under the above circumstances amounts to such. Nor was any specific injury shown to have been suffered by appellees except possibly, the humiliation attendant upon such conduct upon the part of the appellants. In other words, no pecuniary damage was shown by reason of any loss of business- or patronage. The testimony does not show that any dispute existed, between the appellees, and the laborers engaged in the work , nor does it show any dispute or controversy between appellees and Roban or between Roban and his employees.

Under the above circumstances it is our opinion that the appellees were not unfair to organized labor nor to the labor union involved. The testimony shows that appellees had no control over the hiring of workmen on the job and had no immediate supervision over their labors. The' appel-lees had a constitutional right to contract ,/with Roban and this was true even though they knew he would not use union labor in the construction work. Therefore, the language of the placards charging the ap-pellees as being unfair to organized labor was a falsity on its face, and, we think, constituted civil libel as defined by art. 5430,-R.C.S. of 1925. Such being true the provisions of art. 5153, R.C.S. of 1925, did not, in our opinion, authorize the picketing done by the appellants. The latter article provides that the members of a trades union may “induce or attempt to induce by peaceable and lawful means, any person to accept any particular employment or to enter or refuse to enter any pursuit or quit or relinquish any particular 'employment or pursuit in which such person may then be engaged”. (Italics ours). The means herein used may' have been peaceful as far as the criminal laws are concerned but they were not lawful under the civil law because the words of the placards constituted a “defamation expressed in. * * * writing * * * tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity * * * or reputation” of the appellees. Art. 5430, supra. There being no express malice shown in this case it is doubtful if the law of criminal libel as set out in arts. 1269 and 1275 of the Penal Code was breached and therefore the appellees had no remedy adequate for this grievance as might be afforded by a criminal prosecution- of the appellants. Under the law of civil libel as announced by the statute the element of. malice is not as important as in the criminal law. Guisti et al. v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874. Therefore, their only remedy was by virtue of the civil statute, which in this case- was not, in itself, an adequate remedy because of the fact that a civil suit for damages would not have amounted to the plain, complete, practical and efficient remedy to which the appellees were entitled. Nagy v. Bennett et al., Tex.Civ.App., 24 S.W.2d.778; Cook v. Panhandle Refining Co., Tex.Civ.App., 267 S.W. 1070. It is apparent that the appellants were insolvent and that a suit for damages would have availed the appellees nothing. Moreover, the acts complained of herein are a violation of the personal rights of the appellees regardless of lack of any visible or measurable .damages. in dollars and cents. In 14 R.C.L. 370, para. 72, it is stated: “Although the jurisdiction of equity, to grant an injunction, is ordinarily regarded as confined to cases where rights of property are involved and as not extending to an exclusively personal right, yet, in many cases, in which relief has been granted it would seem that, though the exercise of the power is nominally based on an alleged -property right, the observance of the rule that equity will be limited to rights of property is, in fact, only a nominal one, the right, to protect which relief is granted, being in reality merely personal.”

In Hawks v. Yancy, Tex.Civ.App., 265 S.W. 233, 237, the court says:

“The rule that equity will not afford relief by injunction except where property rights are involved is known chiefly by its breach rather than by its observance; in fact, it may be regarded as a fiction, because courts with greatest uniformity have based their jurisdiction to protect purely personal rights nominally on an alleged property right, when, in fact, no property rights were invaded. This is, in our opinion, as it should be, because the personal rights of citizens are infinitely more sacred and by every test are of more value than things that are measured by dollars and cents.
“Such a rule, as said in the note to Chap-pell v. Stewart, 37 L.R.A. 783, makes ‘the system of equity suitable only to a semi-savage society which has much respect for property but little for human life. Our equity jurisprudence does not quite deserve so severe a reproach. It does, indeed, do much for the protection of personal rights, although it has not been willing to acknowledge the fact but has persisted in declaring the contrary.’”

In 32 C.J. 183, para. 269, the following language is used: “An injunction will not issue to restrain the picketing of one’s place of business and-the use of peaceable persuasion to induce his customers and the general public to withhold patronage from him. But where picketing is accompanied by force, violence, intimidation, or the circulation of false statements, it will be enjoined.”

Section 1 of art. 4642, R.C.S. of 1925, provides for injunctive relief where “the applicant is entitled to the relief de-. manded and such relief or any part thereof requires the restraint of some act prejudicial to him”. We think it is evident that the acts of the appellants in unlawfully and wrongfully impeaching and impugning the honesty and reputation of the appellees, necessarily exposing them to public contempt and ridicule, • were such acts as are prejudicial to the appellees and as might be enjoined by a court of equity, especially in the absence of a complete, practical and efficient remedy at law. Ex Parte Warfield, 40 Tex.Cr.R. 413, 50 S.W. 933, 76 Am.St.Rep. 724; Gibraltar Savings & Building Ass’n et al. v. Isbell et al., Tex.Civ.App., 101 S.W.2d 1029; Walker et al. v. Fort Worth Insurance Underwriters’ Ass’n et al., Tex.Civ.App., 79 S.W.2d 661, writ dismissed. It is therefore our opinion that the trial court did not abuse his discretion in granting the temporary injunction herein. Culinary Workers’ Union No. 331 et al. v. Fuller et al., Tex.Civ.App., 105 S.W.2d 295; Webb v. Cooks’, Waiters’ and Waitresses’ Union, No. 748 et al., Tex.Civ.App., 205 S.W. 465; Cooks’, Waiters’ and Waitresses’ Local Union et al. v. Papageorge et al., Tex.Civ.App., 230 S.W. 1086; Ellis v. Journeymen Barbers’ International Union of America, Local Union No. 52, et al., 194 Iowa 1179, 191 N. W. 111, 32 A.L.R. 756, and authorities cited.

The judgment-is affirmed.

On Motion for Rehearing.

On February 2, 1940 the appellants filed a motion for rehearing herein. We have concluded that this cause has become moot since the date of our original opinion on January 22, 1940’ As will be seen from our opinion above the injunction order expired by its own terms on January 29, 1940, which was just one week after we affirmed the cause. The effect of our affirmance of the judgment bélow was to keep in force the trial court’s order until it expired on January 29, 1940. Such order, under the record presented, having expired on said date nothing remains' for this court to adjudicate. Ex parte Zuccara, 106 Tex. 197, 163 S.W. 579, Ann.Cas. 1917B, 121; Swift et al. v. Callaghan Land & Pastoral Co., Tex.Civ.App., 120 S.W.2d 459; Yellow Mfg. Acceptance Corporation v. Scott Motor Co., Tex.Civ.App., 113 S.W.2d 293; Riggins v. Thompson et al., 96 Tex. 154, 71 S.W. 14; City of Lubbock v. Steagall et al., Tex.Civ.App., 45 S.W.2d 996.

The motion for rehearing is therefore overruled.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    COMMERCIAL CREDIT CO., INC., v. RAMSEY.
    No. 14025.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1940.
    Rehearing Denied March 22, 1940.

      Dallas C. Biggers and Ralph D. Baker, both of Dallas, for appellant.
    Johnson & Oliphant, of Dallas, for ap-pellee.
   BROWN, Justice.

Appellee brought suit in the district court of Cooke County, Texas, against appellant, for damages, alleging that appellant had slandered the title to his lands by abstracting a judgment obtained by appellant against appellee’s son, who bears the same name as appellee, and causing the abstract of judgment to be recorded in Cooke County.

A judgment was agreed upon, by counsel fo.r the respective parties, in open court, on October 24, 1938, and judgment pronounced at such time.

Appellee attempted to set aside the judgment and to obtain a new trial, by a motion filed on the third day after judgment was agreed upon and pronounced, in open court, and which motion was acted upon by the trial court, on the day following its filing, and was granted and an order entered to that effect, without giving opposing counsel and his client, the appellant, any notice of the pendency of the motion or of the hearing had thereon. The motion was filed on October 27th, which was Thursday, was acted upon October 28th, which was Friday, and the term of court ended by operation of law Sunday night, October 30th, at 12 P. M.

To this suit appellant answered, filing first a plea in abatement to the effect that all parties announced ready in the case on October 24, 1938, and after certain negotiations and argument, in open court, the plaintiff and defendant did agree to settle the case, and did settle said case and entered such judgment, and defendant agreed to pay the costs of such judgment, the judgment agreed upon being one clearing the land of the cloud, if any. That the agreement was made with plaintiff’s attorney, who discussed the agreement with the plaintiff before it was made. That the mere fact that the plaintiff changed his mind, later, would not authorize the trial court to set aside the agreed judgment.

Upon a hearing of this plea in abatement, a stipulation was entered into by all parties as covering the facts; the substance being: that on October 24, 1938, all parties announced ready for trial and began the trial of the cause, and that plaintiff’s counsel stated that his principal contention was that young Ramsey had signed the note and mortgage “G. L. Ramsey, Jr.,” and that the defendant had left off the “Jr.” in taking the judgment, but defendant’s counsel stated that the note and mortgage showed only “G. L. Ramsey” and that was the only name the defendant knew in the matter. That then plaintiff’s counsel, Mr. Culp, stated that if such was the fact he “was ready to quit.” That defendant’s counsel produced the note and mortgage which showed to have been signed only “G. L. Ramsey”, and plaintiff’s counsel asked for time to see his client and to compare the mortgage with the records in the County Clerk’s office. That after the lapse of a few minutes, Mr. Culp returned to the court room and announced that he was ready to dispose of the case on the basis that the plaintiff take judgment removing the cloud and costs and that plaintiff take nothing against the defendant by way of damages. That then the trial court entered a notation on the docket: “Judgment as per decree on file.” But no decree was ever actually prepared and put on the minutes. That on the 27th day of October, 1938 (which was three days after judgment was rendered by the court, in open court), Mr. Culp, counsel for plaintiff, filed the following motion: “Comes now the plaintiff and moves the court to set aside the judgment agreed to be entered herein by counsel for plaintiff and defendant because plaintiff never consented to such agreed judgment and that same is a confession' of judgment against his interests. Wherefore he prays the judgment herein be set aside and he be granted a new trial.” The motion is not verified and is signed by Mr. Culp, plaintiff’s counsel.

On the 28th day of October, 1938, the trial court entered an order setting aside the judgment and granting the said motion, the order being recorded in the minutes. That defendant’s counsel had no notice of the hearing on the motion and was not present when same was heard, and did not know until after the adjournment of that term of court that the judgment had been set aside.

The plea in abatement having been overruled, the trial court put the parties to trial and on a jury verdict rendered judgment for appellee against appellant for damages, etc.

The first assignment of error presents the action of the trial court in overruling the plea in abatement for our review.

We take judicial notice of the fact that the term of court at which these proceedings were had in October, 1938, began on September 5th, 1938, and was for a period of eight weeks, which brought that term to an end at midnight, Sunday, October 30, 1938.

Thus it will be seen that this motion to set aside the agreed judgment was actually filed on the third day, after the judgment was agreed to, in open court, and was acted on by the trial court the day after it was filed and was granted on the 28th day of October, 1938, which was Friday of the last week of court.

It is evident that no attempt to give the defendant, or his counsel, notice of the pendency or a hearing of the motion was made.

Article 2232 (Rev.Civ.Statutes) provides that new trials may be granted and judgments set aside “on motion for good cause.”

In the instant suit the trial court did not act on his own motion. The record discloses that he only considered and was moved to act on the motion that was filed and presented to him.

Article 2291 (Rev.Civ.Statutes) relating to motions, and notice given thereof stipulates: “If the time of service is not elsewhere prescribed, the adverse party is entitled to three days’ notice of a motion not relating to a pending suit, and such motions shall be taken up and disposed of in their order as other suits are required to be.”

In construing this portion of the statute quoted, Mr. Chief Justice Conner, speaking for this court, in Campbell v. Richards, 233 S.W. 532, 534, said: “By reference to the statutes mentioned, it will be seen that motions may be filed not only in suits pending, but also in such suits after a determination of the issues involved, as in the case of the motion before us. It is to be further noted that it is essential that the opposing party or the party to be affected by the motion must receive notice of its filing.”

It is evident to us that, when the trial court pronounced judgment in the cause, which judgment was predicated upon an agreement had and entered in open court, by counsel for the respective parties, the cause was not then a pending cause, but the issues had then been determined.

It will be observed that the motion to set aside the judgment theretofore rendered and to grant the plaintiff a new trial is not verified and it is not supported by the plaintiff’s affidavit.

This motion relates to a matter that did not arise during the hearing of the case and does not call into question any ruling of the trial court.' It presents a matter that is new.

It will not be seriously contended that such a motion, filed to set aside a judgment of the court theretofore pronounced, is not required to be supported by an affidavit, or that the motion should not be sworn to by the party or his representative and then supported by proof.

In Glover v. Pfeuffer, Tex.Civ.App., 163 S.W. 984, writ refused, the court holds that a motion for a new trial, bottomed on such a matter or fact that would require proof of its existence, unsupported by affidavits, and which motion was filed at the very end of the term, does not give the opposite party an opportunity to answer it, and the Court of Civil Appeals sustained the action of the trial court in not giving any weight to the motion.

That opinion cites two Supreme Court cases which hold that .such motions filed at the very end of the term, as the motion in the instant case was filed, simply come too late. See Texas & N. O. Ry. Co. v. Scarborough, 101 Tex. 436, 108 S.W. 804, and Houston Oil Co. et al. v. Kimball et al., 103 Tex. 94, 122 S.W. 533, 124 S.W. 85.

These cases recognize the right of the party, whose interests are affected by the motion, to be given an opportunity to meet the contentions made in the motion.

That the trial court acted solely on the motion in making the order setting aside the judgment, theretofore pronounced in open court, there is not the shadow of a doubt.

We believe that under the record before us he could not do so and that his order sustaining such motion should be set aside.

The law favors compromises and settlements of controversies.

Courts are not inclined to set aside judgments rendered in pursuance of compromises, and even though the attorney who agrees to such compromise may have no actual authority to do so, it is the policy of our courts not to set aside such judgments, in the absence of a showing of injury suffered by the party seeking to vacate the judgment.

Vol. 5, Tex.Juri., sect. 52, page 461 et seq.; Roller v. Wooldridge, 46 Tex. 485; Ward v. Wilson, 17 Tex.Civ.App. 28, 43 S.W. 833, affirmed 92 Tex. 22, 45 S.W. 8; East Line & Red River R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 13 Am.St.Rep. 758.

Each litigant has a substantial right in an agreed judgment. A right that is vested, at least for the time being, and it is our opinion that such a judgment cannot be set aside by one of the litigants in the absence of a showing of injury, and in the absence of a showing that such judgment was reached through fraud, accident or mutual mistake. And we further conclude that a motion, or petition, filed to set aside such a judgment, cannot be heard by a trial court, or acted upon, unless notice is given the opposing litigant, whose rights are affected by the motion.

We hold that the plea in abatement is well taken and should be sustained. In other words, we hold that plaintiff cannot relitigate the issues' involved in the suit until he can, by proper proceedings, set aside the former judgment fo.r good cause established

We hold that the trial court rendered judgment on October 24, 1938, in accordance with the agreement made by counsel representing the parties to this litigation, and that it is the duty of the trial court to enter judgment in accordance with such agreement, nunc pro tunc.

When such a judgment is entered, then the .rights of the parties thereto to file whatever motions or other pleadings they may see fit to file will be preserved.

The judgment of the trial court is reversed and judgment is here' rendered for appellant sustaining its plea in abatement, but without prejudice to the right of the appellee to file a proper motion for a new trial, if, as and when the trial court causes the judgment heretofore rendered to be entered, or his right to file a proper proceeding to set aside the judgment rendered, for good cause, if any there be.


author: FOLLEY, Justice.

text:
    FERTSCH et al. v. WHITE.
    No. 5105.
    Court of Civil Appeals of Texas. Amarillo.
    January 29, 1940.
    Vaughn E. Wilson, of Lubbock, for ápr pellants.
    W. D. Benson, Jr., of Lubbock, for ap-pellee.
   FOLLEY, Justice.

The appellants, Everett Fertsch and his mother, Mrs. Edna Fertsch, suing for herself and as next friend of her minor son Everett, brought this .suit against Cecil White doing business under the name of Cecil White Truck Lines, to recover damages resulting from a collision on College Avenue of the town of Lubbock, Lubbock County, Texas, between a motorcycle operated by Everett Fertsch and a truck with a semitrailer attachment operated by J. L. White, a brother and employee of the ap-pellee. ,

The collision occurred on June 25, 1936, on College Avenue which is immediately outside the city limits of. the city of Lubbock. Such avenue is also State Highway No.- 7 and State Highway No. 84 running north and south for more than a mile adjacent to the city limits of Lubbock and separates the city from the campus of Texas Technological College. College Avenue is about fifty feet wide from curb to curb and is paved on both sides with concrete slabs each about eighteen feet wide, there being about fourteen feet in the center of the street which is unpaved except at intersections with streets running east and west. Each side of the avenue is a one-way drive. There are some eighteen streets entering College Avenue from the city of Lubbock on the east but such streets do not cross the avenue except in three places where they extend into the campus of the college. The campus which joins College Avenue on the west extends from about Fourth Street on the north side to about Nineteenth Street on the south side. The collision occurred at the intersection of Sixth Street with College Avenue.Sixth Street enters College Avenue from the east but does not cross the avenue. The truck of the appellees entered the avenue from the east on Sixth Street and was turning left to go south when the motorcycle of the appellant Everett Fertsch, which was going .north on the east side of the avenue, hit the left rear wheel under the semitrailer. Everett Fertsch was in the driver’s seat of the motorcycle and his friend, Morris Stephens, was riding behind on the auxiliary seat.

The appellants alleged that the driver of the truck was negligent in approaching' the avenue and intersection at an unreasonable rate of speed with the truck and semitrailer overloaded; that the driver failed to keep his vehicle under control; that he failed to stop before entering the intersection; that he failed to keep his vehicle on the right hand side of the center of the intersection; that he failed to determine that a turn to his left and a stop on and across said intersection could not be made with safety to Everett Fertsch; and that said driver failed to give a visible or audible signal of his intention to change the course of his vehicle, all of which acts were alleged to have been negligent and the proximate cause of the collision.

The appellee denied the acts of negligence charged against his driver and alleged that the appellant Everett Fertsch was guilty of contributory negligence in that he was operating his motorcycle in a dangerous, reckless and careless manner; that he was driving at a dangerous and reckless rate of speed; that he was driving at a rate of speed in excess of forty-five miles per hour in violation of law; that he was driving his motorcycle upon a public street in a city, town or village in excess of twenty miles per hour in violation of law; that he did not keep his motorcycle under proper control; that he did not keep a proper lookout for the approach of the appellee’s truck; that he should have driven his motorcycle to the rear of the truck; and that the appellant Everett Fertsch did not yield the right-of-way to the truck of the appellee approaching the intersection from Everett Fertsch’s right, all of which acts and omissions the appellee alleged were jointly and separately the proximate cause of the injuries.

The cause was tried before the court without a jury and judgment was rendered for the appellee. The trial court filed findings of fact and conclusions of law in which the truck driver was acquitted of any acts of negligence and the appellant, Everett Fertsch, was found guilty of several acts of contributory negligence proximately causing and contributing to his injuries. The acts of negligence found by the court against Everett Fertsch were as follows: that he was operating his motorcycle at a dangerous rate of speed; that he was not keeping a proper lookout; that he was driving at an excessive and dangerous rate of speed on an avenue or public highway through a semi-urban section of Lubbock; that he did not yield the right-of-way to the truck driver approach-1 ing the intersection from Everett Fertsch’s right-; that he was driving his motorcycle at an excessive, dangerous and reckless rate of speed for two persons to be double riding it under all the facts and circumstances; and that the appellant did not have his motorcycle under proper control to avoid the collision, all of which acts and omissions were found to be the proximate cause of the injuries.

All of the assignments of the appellants are based upon the above findings of the court. They assert that the testimony was insufficient to establish such findings of fact by the trial court.

If there is any competent evidence to support the court’s finding that the truck driver was not guilty of negligence or to support any of his findings on the issues of contributory negligence on the part of the appellant Everett Fertsch, it is elementary that the judgment of the trial court must be affirmed, and this rule of law is so well established we deem it unnecessary to cite authorities in support thereof. In connection with the above findings of the trial court we are permitted to disregard all of the testimony except that in support of the findings and the judgment based thereon.

The testimony is uncontradicted that on the east side of College Avenue there were many business houses and residences adjoining and facing the avenue. Many of these residences are boarding and rooming houses for college students attending Texas Technological College just across the avenue on the west. The campus and buildings of the college are immediately west of College Avenue, which buildings include two student dormitories, an athletic field and a gymnasium, though most of the buildings are back some distance from the highway.

The testimony showed that the appellant Everett Fertsch, who at the time of the collision was about fifteen years old, and his boy friend, Morris Stephens, who was then about eighteen years of age, were traveling north on College Avenue when the collision occurred. Everett Fertsch was riding in the regular seat and operating the motorcycle. Morris Stephens sat immediately behind him upon what is known as the auxiliary seat. The overwhelming weight of the testimony shows that they were traveling about forty miles per hour, and the court so found, however, there was some testimony that estimated their speed at sixty miles per hour or more. The traffic along College Avenue was shown to be heavy. There was other testimony that the avenue was frequently crossed by pedestrians, most of whom were college students. There was a filling station, a tourist camp, an ice house and an eating place near the junction of Sixth Street with College Avenue. The east side of College Avenue was some twelve or sixteen feet west of the city limits of Lubbock.

The truck of appellee driven by J. L. White, accompanied by Pete Abbott, came from the east on Sixth Street and, according to several of the witnesses, stopped before entering the intersection, however, the driver, J. L. White, testified that he did not come tó a complete stop but slowed down to about four or five miles per hour, shifted gears and proceeded into the intersection after it appeared to him the way was clear for him to make a left hand turn. The truck with semitrailer attached was about thirty-two feet long and was loaded, but the exact weight of the load was not shown. The rear wheels .under the semitrailer or van were at the immediate rear of the trailer. There was testimony to the effect that the overhang on the semitrailer was about four feet back of the rear wheels, however, the photograph of a similar truck introduced in evidence shows this overhang to be less than four feet. All of the testimony showed the truck of the appellee was traveling only about ten or twelve miles per hour at the time of the collision. There was also testimony to the effect that the truck stopped immediately upon being hit, and the court so found.

The court further found upon sufficient testimony that at the time the truck started into the intersection the motorcycle was from one block to one and one-half blocks away. These blocks, including the intersections, were shown to be about 350 feet long. Oh the issue of proper lookout, J. L. White, the driver of the truck, testified that as the motorcycle approached from over a block away the driver had his head turned back over his left shoulder looking to the west, apparently talking to the boy behind him, and that such driver of the motorcycle kept his head so turned until he was within fifteen feet of the truck. White was corroborated in his testimony by the witness Mineous Jackson, a thirty-three year old teacher-student of Texas Technological College, who was standing in front of the filling station about sixty feet from the collision. His testimony was that he first saw the motorcycle when it was a little over a half block from the truck and that the ■ operator of the motorcycle was at first looking down and then looked back apparently talking to the boy behind him. He also testified that the motorcycle skidded some seven or eight feet before hitting the trailer. There was other testimony, however, that it skidded much more than that, and the court found upon sufficient testimony that the skidding was from seven to thirty feet back from the point of the collision. The court further found that the motorcycle first swerved, then straightened up and ran head-on .into the rear wheel of the trailer. The court also found, upon the testimony of several witnesses, that'immediately prior to the collision the left rear wheel of the semitrailer had passed over the east curb line of College Avenue and was some fifteen to twenty feet of the southeast corner of the intersection, and that at the time of the collision said rear wheel was from ten to twelve feet west of the east curb line and twelve to fourteen feet from the southeast corner of the intersection. Under such facts it is evident that if the appellant Everett Fertsch had had his motorcycle under proper control he could have passed behind the semitrailer and avoided the collision.

The physical facts show there was a terrific impact at the time of the collision. The motorcycle ran head-on into the left rear dual wheel of the trailer. The testimony showed, and the court found, that the axle of the rear wheel of the trailer was bent backward, sheering some of the bolts thereon, and that the motorcycle was completely demolished. The two tires of the dual wheels of the trailer hit by the motorcycle were blown out by the impact and the rim of one wheel was bent out of shape. The appellant Everett Fertsch was thrown several feet from 'the point of the collision, knocked unconscious, severely bruised, and sustained several fractured vertebrae, a broken hip and pelvis bone, and two broken ribs, all of which caused him to remain in the hospital for several weeks.

Under the above circumstances, that the court was justified in finding the appellant Everett Fertsch was guilty of contributory negligence proximately causing the injuries, in our opinion, is not even debatable. Particularly is this true with reference to his failure to keep a proper lookout, his excessive speed under the circumstances, and his failure to have his motorcycle under proper control. Nor do we think the court’s acquitting the truck driver of any acts of negligence proximately causing the collision was unfounded in the testimony.

The judgment is affirmed.


author: CODY, Justice.

text:
    TEXAS STATE LIFE INS. CO. v. FRESS.
    No. 10941.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 29, 1940.
    Rehearing Denied March 21, 1940.
    O. M. Street, of Dallas, for plaintiff in error.
    A. B. Wilson and Allan H. Kottwitz, both of Houston, for defendant in error.
   CODY, Justice.

Defendant in error, wife of the deceased, recovered judgment below as the beneficiary of a policy of accident insurance which had been issued to deceased by plaintiff in error. The defense was that the deceased, who was killed by the discharge of a pistol, had committed suicide.

“When death occurs from other than natural causes and the evidence leaves the nature of the cause in doubt, the presumption is that it was accidental rather than self-inflicted.” 24 Tex.Jur., page 1263, and cases there cited. Plaintiff in error seems to entertain the erroneous belief that the burden was on the insured to disprove the insurer’s pled defense that the death was suicide. Id. We have carefully examined the evidence and have found it amply sufficient to sustain the jury’s findings: (1) That the death of the deceased was effected solely by external, violent and accidental means; (2) that the death did not result from injuries 'intentionally self-inflicted. We do not see how any useful purpose would be served by reviewing the evidence.

It was not error for the court to sustain defendant in error’s objection to the proffered evidence that Mrs. Panos, a daughter of the deceased, made a statement at the Plospital to Dr. Harris, sometime following the shooting which had occurred at the home of the deceased, to the effect that the death was suicide. Mrs. Panos was not a beneficiary; she was not even at the home of deceased when the shooting occurred. We can think of no exception to the hearsay rule under which such evidence would be admissible. Plaintiff in error makes no contention that the statement is res gestae; and it is obviously a conclusion which Mrs. Panos herself would not be permitted to testify to over objection. Indeed, the statement is a conclusion which was the very issue to be determined by the jury.

The judgment should be affirmed, and it is so ordered.

Affirmed.


text:
    STEEN et al. v. MILLIGAN et al.
    No. 5119.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1940.
    G. E. Lockhart, of Lubbock, and W. W. Price, of Brownfield, for appellants.
    Vickers & Campbell, of Lubbock, for ap-pellees.
   FOLLEY, Justice.

This is an appeal from an order of the district court of Lamb county, Texas, sustaining defendants’ plea of privilege and transferring plaintiffs’ cause of action to. the district court of DeWitt county, Texas, the county in which all the land herein involved is situated.

Johnie Belle Steen, joined by her husband, W. E. Steen, who reside in Terry county, Texas, filed this suit against the defendants, Barth Milligan, Blanche Mil-ligan, a femme sole, Elma Key and her husband, Otto Key, Mary Fannett and her husband, J. D. Fannett, Claude Mae Kelly and her husband, S. D. Kelly, Wm. H. Mil-ligan, Tom Milligan and Irvin Manuel. Barth Milligan was alleged to be a resident of Lamb county, Texas; Blanche Milligan, Mary Fannett, J. D. Fannett, Wm. H. Milligan and Tom- Milligan, in DeWitt county, Texas; Claude Mae Kelly and S. D. Kelly, in Wilson county, Texas; and Elma Key and Otto Key, in Refugio county, Texas. It was admitted that at the time the suit was filed the defendant Barth Milligan was a resident of Lamb county. The defendants - Barth Milligan, Claude Mae Kelly, Blanche Milligan, Mary Fan-nett and Wm. H'. Milligan are the surviving children of J. B.' Milligan and Mary E. Milligan, both deceased.- The defendant Irvin Manuel is the surviving son of Mary E. Milligan by a former marriage and is therefore a half brother of the defendants just named. The plaintiff Johnie Belle Steen and the defendants Tom Milligan and Elma Key are the children of J. B. Milligan by a former marriage.

The plaintiffs alleged that both J. B. Milligan and Mary E. Milligan died intestate; that the land described in plaintiffs’ petition was the community property of J. B. and Mary E. Milligan; that the plaintiff Johnie Belle Steen, and the defendants Tom Milligan and Elma Key, as the surviving children of J. B. Milligan, each owned an undivided %s -interest in three tracts of land in DeWitt county, Texas, the first tract containing 929 acres, the second tract 160 acres, and the third being an undivided % interest in a 50 acre tract; that the defendants Barth Milligan, Mary Fannett, Claude Mae Kelly, Blanche Milligan and Wm. H. Milligan each owned ¡an undivided ¾8 interest; and that the defendant Irvin Manuel owned an undivided ¾8 interest in the land. The plaintiffs sought to have the land partitioned between the parties and asked for an accounting from Wm. H. Milligan who was alleged to have been in possession of the land since June 10, 1933, the date of the death of J. B. Milligan.

The defendants Barth Milligan, Blanche Milligan, Wm. H. Milligan, Claude Mae Kelly, joined by her husband, S. D. Kelly, Mary Fannett, joined by her husband, J. D. Fanned, and Imn Manuel, filed their plea of privilege in due form to be sued in DeWitt county, Texas. The plaintiffs controverted such plea in which affidavit they set out the same allegations as contained in their original petition and assert that since their suit was, in effect, a suit for partition, and since the residence of Barth Milligan was in Lamb county at the time the suit was filed, the venue of the cause was properly laid in Lamb county. In reply to such controverting affidavit the defendants asserted an adverse title to the land and alleged that the sole object and purpose of plaintiffs’ suit was to recover an interest in the lands and not to partition the same.

There was testimony to the effect that the 50 acre tract described in plaintiffs’ petition was not owned by any of the parties to the suit, J. B. Milligan and Mary E. Milligan having sold such land before their death. The record further shows that Mary E. Milligan purchased the 929 acres o'f land as her separate property under a deed in 1910 which recited it was “for' her sole and separate use and benefit, * * * The 160 acre tract was formerly owned by Wm. and Sarah Milligan, parents of j. B. Milligan. J. B. Milligan inherited from his parents an undivided ½ interest in this 160 acre tract. Thereafter he purchased other interests in the land so that before his death he owned an undivided ⅜ interest in the tract. Mary E. Milligan also purchased as her separate property the other undivided ½ interest in the land, which she owned at the time of her death.

Under the above circumstances the only real controversy between the parties is with reference to the 929 acres of land. The plaintiffs assert that such land was the community property of J. B. Milligan and Mary E. Milligan and that since Barth Milligan resided in Lamb county the venue of the suit by the heirs to partition the same was properly laid in Lamb county under subd. 13 of art. 1995, R.C.S. The defendants assert that, since the record shows the 929 acres was the separate property of Mary E. Milligan and as such passed to her children and not to the children of J. B. Milligan, this suit is one primarily to recover land, and that by virtue of subd. 14 of art. 1995 the' venue of the suit must necessarily be in DeWitt county where the land is situated.

We think it is elementary that a suit of this nature must be- brought in the county where the land or a portion thereof is situated. Under the record as presented the plaintiff shows no interest whatever in the 929 acres of land. The plaintiff could only inherit an interest in such land from her father and the testimony introduced shows he had no interest for her to inherit. The deed to Mary E. Milligan on its face shows such land was her separate property and as such it would pass to her children and not to the plaintiff and the other two children of J. B. Milligan by his former wife. Until this presumption in the deed to Mary E. Milligan is either impaired or destroyed there is nothing to partition between the plaintiffs and the defendants as far as the 929 acre tract of land is concerned and the suit is thus resolved into one, not for partition, but for the recovery of land. That such a suit must be instituted in the county where the land or a portion thereof is situated is so well settled we think such proposition does not merit further discussion. Elder v. Miller et al., Tex.Civ.App., 116 S.W.2d 1171; Cowen v. Cowen et al., Tex.Civ.App., 268 S.W. 973; Republic Ins. Co. v. Walters et al., Tex.Civ.App., 88 S.W.2d 726; Shell Petroleum Corporation et al. v. Grays et al., 122 Tex. 491, 62 S.W.2d 113.

The judgment is affirmed.


author: JACKSON, Chief Justice.

text:
    STONE v. DICKERSON et ux.
    No. 5117.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1940.

      B. N. Richards, of Dalhart, for appellant.
    Small, Arney & Small, of Amarillo, for appellees.
   JACKSON, Chief Justice.

M. Dewey Stone and Margaret Stone were for some years prior to 1937 husband and wife and resided in Dallam County, Texas. Margaret Stone instituted a suit styled Margaret Stone v. M. Dewey Stone, No. 2431, in the District Court of Dallam County against her husband to obtain a divorce, the custody of their minor son, Edward Lee Stone, bom on January 17, 1934, and for a partition of their community property.

On May 13, 1937, the court rendered judgment granting the plaintiff, Margaret Stone, a divorce, annulled and cancelled the ■bonds of matrimony existing between her and her husband, M. Dewey Stone, and partitioned the community property. The court found that Edward Lee Stone was the son of defendant and plaintiff and that she was a suitable person to have custody of their minor son. The decree for divorce and partition of the property are not involved in this controversy.

The construction of the judgment of the court awarding the custody of the child presents one of the material questions before this court for review.

Mrs. Stone moved from Dalhart to Amarillo in October 1937, and on the 13th day of said month was married to A. M. Dickerson.

On or about December 29, 1937, A. M. Dickerson, joined by his wife, Margaret Stone Dickerson, filed his application, styled Ex parte Edward Lee Stone, No. 13546, in the District Court of Potter County, Texas, praying that'he be granted leave by the court to adopt Edward Lee Stone as his own son. On the next day the court appointed Mrs. O. W. Moore to investigate the former environments and antecedents of the minor, Edward Lee, and she reported to the court within the time directed and on January 27, 1938, the court rendered a decree, the parts of which, and the findings therein material to a disposition of this appeal, are substantially, that Edward Lee was the son of M. Dewey Stone and Margaret Stone, who were divorced at Dalhart May 13, 1937; that Margaret Stone married the petitioner, A. M. Dickerson, on October 13th thereafter and since the marriage the minor has lived with his mother and stepfather in their home in Potter County; that the mother joined in. the petition of her second husband for the adoption of Edward Lee, who was approximately three and one-half years of age and a proper subject for adoption and the home of petitioner a suitable home for the child, and A. M. Dickerson, the petitioner, was by the decree granted leave to adopt Edward Lee, and the adoption made effective as of date January 27, 1938, adjudging that henceforth Edward Lee should be deemed and held to be the child of A. M. Dickerson as fully as though born to him in lawful wedlock.

On May 26, 1938, M. Dewey Stone, the appellant herein, filed this action, Cause No. 13847, in the District Court of Potter County, Texas, in the nature of a bill of .review to set aside and annul the judgment of adoption in the cause styled Ex parte Edward Lee Stone, numbered 13546 on the docket of said court.

The appellant alleged he is the father of Edward Lee Stone; that he did not consent either orally or in writing to the adoption of his minor son by appellee A. M. Dickerson; that he had no notice of the proceedings in Cause No. 13546, was not present at the hearing and had no knowledge thereof and that his parental and paternal rights in and to his son, Edward Lee, had not been terminated by any juvenile court or other court of competent jurisdiction.

The appellees answered by general denial, asserted the legality of the proceedings of adoption, but urged that if for any reason the adoption decree should be.annulled that the court, all parties being present, should decree said adoption in this action or determine the proper custodian for Edward Lee and the rights of visitation and association of each of the natural parents.

The court sustained the previous judgment of adoption rendered in Cause No.' 13546, did not consider the alternative relief asked and M. Dewey Stone prosecutes this appeal.

The appellees admit that the record shows that appellant, M. Dewey Stone, did not give his consent orally or in writing to the adoption of his son, Edward Lee, by A. M. Dickerson; that he was not notified in any way of the adoption proceedings in Cause No. 13546, was not present and had no knowledge thereof.

The part of the judgment in the divorce proceeding, Cause No. 2431, rendered in the District Court of Dalhart, in Dallam County, Texas, decreeing the custody of the child is as follows:

“That the custody of the minor child of Plaintiff and Defendant, M. Dewey Stone, be, and the same is hereby awarded to the Plaintiff, but that the Defendant, M. Dewey Stone, is hereby given the right and privilege to visit and to be with said child at reasonable times and reasonable hours; provided that Defendant shall have the privilege of also taking said child to his mother’s hpme on two Sundays out of each month, provided said child shall not be kept away from the home of Plaintiff for more than six hours on any .such occasion and shall be returned by Defendant, M. Dewey Stone, to the possession of Plaintiff within six hours after same may have been taken to the home of said Defendant’s mother at any time for which such provision is made. ’

* * * * * *

“That the privilege accorded and herein grantéd to the defendant, M. Dewey Stone, to visit said child whilé to the custody of its mother is to be exercised only at reasonable hours and at seasonable times, arid the right and privilege herein granted him to take said child frdrti the custody of the plaintiff on two‘> Sundays in each month, and to carry said child to the home of the mother of the ¡Defendant, M. Dewey Stone, shall likewise be exercised at reasonable hours and said child shall be returned to the custody of its said mother and at the home or place where said mother is living, and from which the custody was so removed, and said child so taken, within the number of hours herein provided.”

This is a final judgment but an independent action may be instituted to re-litigate and adjudicate the custody of Edward "Lee Stone. However, the jurisdiction of the District Court of Dallam County was not exclusive, but any district court could entertain such 'new and independent suit and enter such judgment as the facts warranted, but the interested parties would be entitled to their day in court. Lakey v. McCarroll, Tex.Sup., 134 S.W.2d 1016; Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420. The decree in the divorce proceedings in Dallam County, Cause No. 2431, did not terminate the father’s parental rights, but reserved to him the privilege of visiting with his son at reasonable times and reasonable hours and reserved to him the privilege of taking the child from the custody of the mother on two Sundays in each month for a period of not exceeding six hours on each such occasion provided at the expiration of the time he should return the boy to his mother at the place where she was living.

The custody of the mother under the decree was not exclusive but temporarily suspended by the provision granting the father physical possession and custody of the minor for so many hours every two weeks. The District Court of Potter County was not warranted in holding that, the divorce decree terminated the parental right of appellant to all custody of his minor son and therefore his consent to the adoption under article 46a, section 6, Vernon’s Ann.Civ.St., was necessary and he was entitled to notice of such proceedings. Fitts v. Carpenter, supra; Stanton v. Franklin et al., Tex.Civ.App., 236 S.W. 151, writ refused.

In Pearce v. Harris et al., Tex.Civ.App., 134 S.W.2d 859, the court holds in effect, that the paternal right of the natural father cannot be terminated by a suit to which he is not a party, a proceeding to which he has not consented and has nc notice thereof, actual or constructive, and that a divorce decree, which permitted the father to visit his child did not terminate the father’s parental right.

The Supreme Court of Louisiana in Downey v. Downey, 183 La. 424, 164 So. 160, 161, holds that a divorce decree authorizing the father to have access to his children, have them visit him and take them out on certain days of the week gave him “The actual physical care, control, possession, and custody of his children during that time.”

In Jackson et ux. v. Spellman, 55 Nev. 174, 28 P.2d 125, 91 A.L.R. 1381, the Supreme Court of Nevada had before it for adjudication a case in which the facts are, if not identical, very similar' to the facts of the case under consideration. The conclusion of the court is, in substance, that the adoption of the children by their mother and stepfather without the consent of their natural father, notwithstanding a decree awarding the mother the custody of the children, is invalid.

The parental right to the custody of a minor child or children is accorded by law to the parents and is subject to judicial control only when such control and supervision is necessary for the safety and welfare of the child. 31 Tex.Jur. 1284, para. 9.

In State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, 903, the Supreme Court of this State uses this language:

“God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring, and has qualified them to discharge those important duties by writing in their hearts sentiments of affection, and establishing between them and their children ties which cannot exist between the children and any other persons.
* * * * * *
“ ‘The breaking of the ties which bind the father and the child can never be justified without the most solid and substantial reasons. Upon the father the child must mainly depend for support, education, and advancement in life; and as security for this he has the obligation of law, as well as the promptings of that parental afféction which rarely fails to bring into the service of the child the best energies and the most thoughtful care of the father. In any form of proceeding, the sundering of these ties will always be approached by the courts with great caution, and with a deep sense of responsibility.’ ”

The appellant, prior to the divorce decree, possessed the privilege of a natural father and the parental right of paternal custody and care of his infant son, but for this privilege he evidently manifested too little appreciation. On account of his conduct this parental right, while not terminated, was reduced to a meager six hours once every two weeks. This very limited time doubtless became of inestimable value to the father and should be denied him only with his consent or on very substantial reasons after he had his day in court.

The judgment is reversed, and the cause remanded.


author: STOKES, Justice.

text:
    SPARKS et al. v. MINCE.
    No. 5118.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1940.

      L. G. Mathews, of Floydada, for appel-la'nts.
    H. D. Payne, of Fort Worth, for ap-pellee.
   STOKES, Justice.

This is a suit in trespass to try title filed by appellee, Carrie Mince, against appellants, Mamie Sparks and her husband, G. W. Sparks, and J. M. Mince and his wife, Mattie. J. D. Mince, the husband of appellee, died on November 22, 1929, and appellants, Mamie Sparks and J. M. Mince, together with E. C. Mince, who is not a party to this suit, are the only children of J. D. Mince and appellee. At the time of the death of J. D. Mince he and appellee owned as community property 177 acres of land in Floyd County, a residence and premises in Floydada, a one-half interest in a small stock of merchandise, and some $3,000 in cash. J. D. Mince died intestate and on the 17th of January, 1930, appellants, joined by E. C. Mince and his wife, who lived in California, executed and delivered to ap-pellee a deed conveying' to her the ’ 177 acres of land, the town property, and all of their right, title and interest in and to the estate of the father, J. D. Mince, deceased, including property of every kind and cha racter, whether real, personal or mixed. Sometime in 1938, the exact date not shown.by the record, E. C. Mince returned from .California and from conversations with him, appellants ascertained that he and his mother were contemplating the sale of the property, whereupon appellants executed, filed and caused to be placed upon record in the county clerk’s office of Floyd County an affidavit to the effect that the deed which they had executed to their mother conveying their interest in the real and personal property of the estate of their father, while absolute upon its face, was, in reality, a trust agreement and that the real and true consideration for the deed was an agreement of their mother to the effect that she would use the money and personal property in the erection of a comfortable home on the land for her own use during her lifetime and that she would hold the property until her death when it should revert to the three children, viz., the appellants, Mamie Sparks and J. M. Mince, and their brother, E. C. Mince. It appears that this affidavit being of record, interfered with appellee in her negotiations for the sale of the land, whereupon she filed this suit.

Appellants answered by setting up the facts above detailed and sought a judgment decreeing and confirming the trust agreement and securing them in its execution.

The case was submitted to a jury upon a single special issue in which the jury found that at the time of the execution of the deed to appellee, she and the appellants entered into an agreement whereby she was to hold the real estate in trust for the appellants and ’E. C. Mince.

At the close of the testimony and before the case was submitted to the jury, appel-lee presented to the court a request for a peremptory instruction, which was overruled, and after the verdict was returned she presented a motion for a judgment in her favor non obstante veredicto. This latter motion was granted by the court and judgment rendered in favor of appel-lee, Mrs. Carrie Mince, to which appellants duly excepted and from which they have perfected an appeal.

The controlling issue in .the case is presented by -the assignments of error which complain of the action of the court in granting judgment in favor of appellee notwithstanding the verdict of the jury. It appears from the judgment rendered by the court that the basis of his action in granting appellee’s motion for a judgment non obstante veredicto was the allegations in her motion to the effect that the purpose of the allegations and contentions of appellants was to ingraft upon the deed executed by them and E. C. Mince an express trust and there being no allegations of fraud, accident or mistake inducing the execution of the deed; and the alleged trust being anterior to its execution, appellants were not entitled to a judgment and, therefore, appellee’s motion for a peremptory instruction should have been granted. A further ground, as indicated by the recitals in the judgment, is that if the contentions of appellants were sustained and an express trust ingrafted upon the deed, the result would be to change the effect of the deed executed by E. C. Mince, 'decreeing the same to be a trust in his favor, and this could not be done in the absence of E. C. Mince in some way becoming a party to the suit.

The action of the court in this respect is assigned as error and we think the assignments must be sustained. It has consistently been held by the courts of this state since an early day that the peculiar wording of our statute of frauds admits the imposition by parol evidence of an express parol trust upon a deed conveying land notwithstanding the fact that the deed is absolute upon its face, and in such cases, it is not necessary to allege fraud, accident or mistake. James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743; Clark v. Haney, 62 Tex. 511, 50 Am.Rep. 536; Robinson v. Faville, Tex.Civ.App., 213 S.W. 316; Faville v. Robinson, 111 Tex. 48, 227 S.W. 938; Tieman v. Dyer, Tex.Civ.App., 114 S.W.2d 669.

In cases where the circumstances are such that equity will not decree a rescission or cancellation of the deed, a trust will be imposed, upon proper allegations and proof, in order to prevent the acquisition of property through wrongful means. The breach of a promis„e to hold property in trust is a species of fraud that will not be tolerated in equity, although originally made in good faith. Our Supreme Court has said that a verbal promise to hold the property in trust is not within the statute of frauds because it is not a promise to convey an interest which then exists in real estate, but, rather, it is made in order to acquire an interest. Faville v. Robinson, 111 Tex. 48, 227 S.W. 938. And it has many times been held by Texas courts that, in order to enforce such a trust, it is not necessary to allege fraud, accident or mistake. Faville v. Robinson, Tex.Civ.App., 213 S.W. 316, and authorities there cited.

For these reasons and others expressed by the courts in the cases above cited and many others, the learned trial judge was clearly wrong in his conclusion that such a trust could not be ingrafted upon the deed in the absence of allegations of fraud, accident or mistake.

Appellants strongly insist that, under the verdict of the jury, they are entitled to a judgment and the case should, therefore, be reversed and judgment here rendered in their favor. The allegations of appellants concerning the alleged trust agreement and the testimony of the witnesses as shown by the record are not sufficiently clear to warrant us or enable this court to render judgment. The allegations are that, when the deed was executed, it was agreed between appellants and appellee that the property would be held in trust by appellee for the use and benefit of appellants and E. C. Mince,)and that such agreement constituted the real consideration of the deed. Mrs. Sparks, while testifying in the case, was asked ■ by her counsel “What was said about your part of the land?” In answer to this question she said that Mrs. Mince “went ahead to say that it would all come back to we children anyway. She was going to put it on the place in improving the place and she said it would all come back to we children.” In answer to other questions she testified that Mrs. Mince said that it would be hers until her death and at her death it would come back to the children. Clearly this testimony refers to the interests being conveyed by the deed which was the- undivided one-sixth interest of each of the appellants and the one-sixth of their brother, E. C. Mince. J. M. Mince testified that Mrs. Mince promised him and His sister, Mrs. Sparks, that she would keep “the land” for them and it would revert to them upon her death. He said that was the real consideration for the deed and the reason he executed it. The verdict of the jury was to the effect that the parties agreed that Mrs. Mince would hold the “real estate in controversy herein in trust for the defendants and E. C. Mince.” Thus it will be seen that the' allegations referred to the “prop-' erty”, which could mean the property conveyed by appellants to their mother, viz., an undivided one-half interest, or it could mean the entire title to the land, including the one-half community interest which Mrs. Mince already owned. Likewise the testimony is indefinite in this • respect. It is not certain whether the allegations and proof refer to the entire estate in the land or to that portion only which was conveyed to Mrs. Mince by appellants. Whether the “real estate in controversy” mentioned in the special issue submitted to the jury referred to the entire title or only' to the undivided interest conveyed is likewise uncertain. Appellee sued for the entire title, while the appellants- may have intended their controversy to include only the portion which they had conveyed to her. This matter probably can be made more definite upon another trial.

E. C. Mince, who was not a party to the. suit, but who executed the deed along with appellants, testified that he made no reservations' whatever and dicl not intend to reserve any interest in the property when he executed the deed. He said that he was not" claiming any interest or right in the land or its reversion, but it was his intention to convey to his mother all right, title and interest of every kind which he owned in it. Appellee contends that in face of the deed, absolute in form, executed by E. C. Mince, and his testimony to the effect that he did not claim any interest in the land by virtue of the alleged reservation of appellants or otherwise, the court was without power to enforce the alleged trust in his .favor. Without passing upon the question of whether or not E. C. Mince was a necessary party to the suit, we suggest that upon another trial the interests of the parties could be adjusted and the issues much more easily determined if E. C. Mince should in some manner become a party to the suit. In the present state of the pleadings, the court would not have been justified in rendering judgment in favor of the appellants for their respective interests under the alleged trust agreement to the exclusion of E. C. Mince and in face of his deed and his testimony it is doubtful if the court would have been warranted in granting the full and only prayer of appellants that the trust be confirmed in favor of E. C. Mince, as well as appellants.

For the errors discussed, the judgment ⅛ reversed and the cause will be remanded.


author: MURRAY, Justice.

text:
    STAPLES et al. v. CALLAHAN et al.
    No. 10649.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied March 20, 1940.

      Seabury, Taylor & Wagner, of Brownsville, for appellants.
    Davenport & Ransome, of Brownsville, for appellees.
   MURRAY, Justice.

This is an appeal from an order of the District Court of Cameron County, 103rd Judicial District, dismissing, for want of jurisdiction, appellants’ motion for a new trial brought under Article 2236, R.C.S. 1925, in a cause in that court, styled Lizzie Havre v. Pat F. Dunn et al.

The cause was an action- of trespass to try title and for damages, brought originally by Lizzie Havre against Pat F. Dunn, Sam A. Robertson and W.. E. Callahan, to recover title and possession of Padre Island, situated along the coast of the Gulf of Mexico, in Cameron and .other counties of this State.

The defendants filed a cross-action against plaintiff and a large number of other persons, for the recovery of the title and possession of the whole of Padre Island, except 7500 acres at its south end. Many of the cross-defendants were cited by publication, including Merrill W. Staples.

Judgment in said suit was rendered June 9, 1928. By the terms of this judgment the original plaintiff took a nonsuit as against the original defendants, Dunn, Robertson and Callahan, while -Dunn announced that by reason thereof he was no longer a necessary party, and, therefore, took his nonsuit upon his cross-action against the cross-defendants- therein named. Judgment was then rendered in favor of Robertson and Callahan against-all cross-defendants for the recovery of' the title and possession of Padre Island, except'7500 acres off the'extreme -south end of same, and all other parties-were denied any relief on their respective pleadings.' Staples was represented, along with all other defendants cited by publication, only by an attorney appointed by the court as an attorney ad litem.

On June 6, .1930-, within two years after the entry of said judgment, Staples, as one of the defendants cited by publication, only, joined by Joseph G. Bowen, his vendee, both residing- in Alabama, filed their petition for new trial, endorsed “Petition for Bill of Review.” In. this petition Staples and Bowen alleged all that was required of them under Art. 2236.

The original respondents, Sam A. Robertson and W. E. Callahan, were duly cited to appear and answer said .petition by citations returnable to the July, 1930, term of said court, and on July 19, 1930, filed their joint answers, consisting of a general demurrer and general denial.

On August 25, 1931, Staples and Bowen filed in said- cause the deposition of Merrill W. Staples, taken in pursuance to the written agreement of Davenport & Ran-some, attorneys of record for Robertson and Callahan.

From August 25, 1931, to October 24, 1938, no entry was made upon the Minutes or Docket of said District Court showing any action taken in said cause. On the latter date Staples and Mrs. Joseph G.' Bowen filed a suggestion and also in open court suggested the death of Joseph G; Bowen and had Mrs. Bowen substituted as a party in his- place and at the same time they suggested the death of Sam A. Robertson and had his widow, Mrs. Maria Robertson, made a party in his stead.

On December 20, 1938, Mrs. Robertson filed an answer to the petition for new trial, consisting of a general demurrer and general' denial. On the same day 'petitioners were" granted leave to amend, and they filed their amended petition for new trial.

On December 20, 1938, hearing of the amended motion for new trial was set for December 23, 1938, and on December 22, 1938, same was reset for December 30, 1938.

On December 30, 1938, appellees filed a motion to strike, abate and dismiss the amended motion for new trial, on various grounds, and appellants filed their answer, and. on the same date the then judge of that court, A. M. Kent, overruled appellees’ motion to strike, and on December 31, 1938, granted appellants’ motion for a new trial, and ordered the cause restored to the regular docket for retrial in due course.

On December 3-1, 1938, Judge Kent’s term of-office expired and he was succeeded, on January 1, 1939, by Jas. S. Graham, who on that date, became .the judge of the 103rd Judicial District, as the successor in office of A. M. Kent. On January 17, 1939, and during the same term that Judge Kent had granted the new trial, appellees filed their motion to “rescind, abate, set aside and hold for naught’’ the aforesaid order of December 31st granting a new trial. Appellants filed an answer.

Appellees’ motion was heard before Judge Jas. S. Graham, the succeeding district judge, on February 3, 1939, and resulted in his order of February 8, 1939, finding that the motion for a new trial had been waived, abandoned and determined by operation of law prior to the proceedings in October, 1938, and that thereafter the court had no jurisdiction, and the order of December 31, 1938, was without force for that reason. The court, therefore, rescinded, abated, set aside and for naught held the aforesaid order of Judge Kent granting the motion for new trial, and. on February 8, 1939, dismissed appellants’ motion for a new trial, without hearing testimony.

From this judgment of dismissal Merrill W. Staples and Mrs.' Joseph G. Bowen have prosecuted this appeal.

Judge Jas. S. Graham set aside the order of Judge A. M. Kent granting a new trial, upon the theory that the court was without jurisdiction to grant a new trial on December 31, 1938, apparently on two theories; the first one being that the motion for a new trial was overruled by operation of law at the close of the July, 1930, term, and the second theory being that, in any event, said motion not having been placed upon the docket, not having been.called to the attention of the- court and no action sought or had thereon at the July, 1930, term, or any subsequent term of the court, prior to October 24, 1938, therefore said motion was abandoned and discontinued and the jurisdiction of the court over such motion had thereby been lost.

Art. 2236, R.C.S.1925, provides in part:

“In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by attorney of his own selection :
“1. The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was rendered. The parties adversely interested in such judgment shall be cited as in other cases. * * *”

This article has been construed as giving to a defendant against whom judgment has been rendered upon service by-publication only, and without his voluntary appearance, an opportunity to appear and be heard in his own defense, and to effectuate this purpose the statute should be liberally construed. Wiseman v. Cottingham, 107 Tex. 68, 174 S.W. 281; Strickland v. Baugh, Tex.Civ.App., 169 S.W. 181; Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905; Smith v. Higginbotham, Tex.Civ.App., 112 S.W.2d 770.

While this article is designated “Bill of Review” it in fact provides .for nothing more than a motion for a new trial, which may be filed at any time within two years after judgment is rendered, where the service is by publication, etc. Miles v. Dana, 13 Tex.Civ.App. 240, 36 S.W. 848; Glaze v. Johnson, 27 Tex.Civ.App. 116, 65 S.W. 662, writ refused; Wolf v. Sahm, 55 Tex.Civ.App. 564, 120 S.W. 1114, writ refused; Wiseman v. Cottingham, supra; Dunlap v. Wright, Tex.Civ.App., 280 S.W. 276, 278; Texas Co. v. Dunlap, Tex.Com.App., 41 S.W.2d 42; Strickland v. Baugh, supra; Hunsinger v. Boyd, supra; Smith v. Higginbotham, supra; McClaren Rubber Co. v. Williams, etc., Co., Tex.Civ.App., 81 S.W.2d 255.

It is clear that the motion for a new trial filed herein was filed under and is governed by the provisions of Art. 2236, supra. It is apparent that this article places a limitation only on the time within which such a motion must be filed, but does not place any limitation upon the time within which such a motion must be acted upon by the court. There is however a limitation as to action on motions for new trials provided for by Art. 2232, R.C.S.1925. This article provides in part as follows:

“Article 2232. Motion. — New trials may. be granted and judgments arrested or -set aside on motion for good cause, on such terms as the court shall direct. Each such motion shall:
“1. Be made within two days after the rendition of verdict if the term of court shall continue so long, if not, then before the end of the term, and may be amended under leave of the court. * * *
“4. Be determined at the term of the court at which it is made.”

It is contended by appellees that the provision of article 2232 requiring motions to be determined at the term of the court at which made should be applied to motions made under the provisions of Art. 2236, and, further, that the motion should be regarded as made at the term of the court to which the adverse parties have been cited to appear. This contention has never before been passed on by an appellate court in this State, so far as we are able to ascertain. However, a somewhat similar question has been passed upon. Art. 2092, R.C.S.1925, Vernon’s Ann.Civ. St. art. 2092, provides, among other things, that in certain large and populous counties' in this State a motion for a new trial may be passed upon after term time and within a certain number of days. In Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905, and Smith v. Higginbotham, Tex.Civ.App., 112 S.W.2d 770, the contention was presented that a motion for a new trial made under the provisions of Art. 2236, in certain large counties was subject to the provision of Art. 2092, and that such motions, must be determined within the time limit provided in Art. 2092. This contention was not sustained but overruled. We conclude that if motions made under Art. 2236, in. counties operating under the special practice act, as set forth in Art. 2092, are not required to be acted on within the time limit governing actions of ordinary motions for new trials filed in the courts of such counties, that the same logic and the same reasoning would require a holding that in counties not governed by Art. 2092, but Art. 2232, a motion made and filed in the: courts of such counties, under the provisions of Art. 2236, would not be subject to-the time limit for action on ordinary motions provided for in Art. 2232.

The ordinary motion for a new trial authorized by Art. 2232, which must be filed within two days after judgment and acted on at the term of the court at which made, and requiring no citation to adverse parties, is so different in all of its aspects from the motion for a new trial provided for in Art. 2236, which may be filed in vacation or in term time, within a period of two years-after judgment, and requiring service of citation to adverse parties to appear at a subsequent term and show cause why such motion should not be granted, that there is no good reason why the time limit prescribed by Art. 2232 should be applied to-motions made under Art. 2236. .

This brings us to a consideration of the question as to whether, by failure of appellants to have their motion docketed or called to the attention of the court or to take any action whatever thereon from August, 1931, to October, 1938, would, as a matter of law, discontinue such motion and deprive the court of all jurisdiction over the same.

At common law there was a doctrine known as the doctrine of discontinuance, which was to the effect that if a party did not prosecute his case with diligence and permitted a “chasm” or “hiatus” to come into his suit, such as failure to have the process continued from day to day, or term to term, that his suit was ipso facto discontinued, and if he cared to further prosecute his cause he must begin by filing a new suit.

There was also an equitable rule that where a suit in equity was not prosecuted with diligence the rule of discontinuance would not apply, but such suit might be dismissed by order of the court for want of prosecution.

It would seem that in this State where law and equity are administered by one and the same court, we should not have the rule of discontinuance, but that cases should only be terminated by an order of the court entered for want of prosecution.

While there is language in some of the decisions which might give rise to a belief that the old common law rule of discontinuance is recognized in this State, when all the authorities are examined it will be seen that in truth and in fact the rule of discontinuance does not exist in this State, but rather the equitable rule of dismissal for wánt of prosecution.

Appellees cite the following cases as holding that the common law rule of discontinuance is recognized in Texas, to-wit: Crosby v. DiPalma, Tex.Civ.App., 141 S.W. 321; Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154, 156; Carr v. Cleveland, Tex.Civ.App., 86 S.W.2d 858, 863; Trahan v. Roberts, Tex.Civ.App., 48 S.W.2d 503, 505; Brooks Supply Co. v. Hardee, Tex.Civ.App., 32 S.W.2d 384; Flanagan v. Smith, 21 Tex. 493; Punchard v. Delk, 77 Tex. 104, 13 S.W. 615; Beaudette v. City of El Paso, Tex.Civ.App., 247 S.W. 895; Cain v. Wharton, Tex.Civ.App., 196 S.W. 952; Hinkle v. Thompson, Tex.Civ.App., 195 S.W. 311; Latta v. Wiley, Tex.Civ.App., 92 S.W. 432; Beck v. Avondino, 20 Tex.Civ.App. 330, 50 S.W. 207, 208; Ponton v. Bellows, 13 Tex. 254.

Appellants cite the following cases, some of which have also been cited by appellees, as holding that only the equitable rule of dismissal for want of prosecution is recognized in Texas, to-wit: Gillespie's Adm’r v. Redmond, 13 Tex. 9; Ponton v. Bellows, 13 Tex. 254; Hinkle v. Thompson, Tex.Civ.App., 195 S.W. 311, writ refused; Flanagan v. Smith, 21 Tex. 493; Punchard v. Delk, 77 Tex. 104, 13 S.W. 615; Cain v. Wharton, Tex.Civ.App., 196 S.W. 952; Beaudette v. City of El Paso, Tex.Civ.App., 247 S.W. 895; Beck v. Avondino, 20 Tex.Civ.App. 330, 50 S.W. 207; Carr v. Cleveland, Tex.Civ.App., 86 S.W.2d 858; Trahan v. Roberts, Tex.Civ.App., 48 S.W.2d 503; Brooks Supply Co. v. Hardee, Tex.Civ.App., 32 S.W.2d 584; Crosby v. DiPalma, Tex.Civ.App., 141 S.W. 321, writ refused; Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154; Sayles v. McLaughlin, R.I., 7 A.2d 779; Cambon Bros. v. Suthon, 148 La. 669, 87 So. 512; Taylor v. Taylor, 76 W.Va. 469, 85 S.E. 652; St. Francis Mill Co. v. Sugg, 142 Mo. 364, 44 S.W. 249; Armourdale State Bank v. Hoel, 120 Kan. 130, 242 P. 481; Blackstone’s Comm., Vol. 3, ch. 20, p. 296; 9 R.C.L., p. 192; -1 C.J.S., Abandonment, §§ 1, 3, pp. 4, 8 and 10; Tex. Jur. Vol. 1, pp. 3 and 10-12. *

After examining these authorities we conclude that in ordinary cases, where no exceptional circumstances are shown, the court does not lose jurisdiction over a cause from want of diligent prosecution until, either on its own motion or at the’ instance of one of the parties, the court enters an order of dismissal.

In keeping with this holding, we come to the conclusion that the District Court of Cameron County had not lost jurisdiction over appellants’ motion for a new trial when it was heard by Judge Kent, on December 31, 1938. The court having jurisdiction, Judge Kent had the discretion to either grant a new trial or dismiss the cause for want of prosecution. This is not an appeal from Judge Kent’s order granting a new trial, so we are not here called upon to decide whether or not he abused his discretion in refusing to dismiss the motion and granting a new trial.

This brings us to a consideration of whether Judge Graham had jurisdiction to set aside Judge Kent’s order without hearing evidence, where he did so at the same term of the court at which said order was made. Judge Kent would undoubtedly have retained jurisdiction over his order granting a new trial until the end of the term at which it was made, but whether his successor in office possesses such jurisdiction is quite another question. This question seems not to have been passed upon in this State, but from holdings in other jurisdictions we conclude that Judge Graham, as Judge Kent’s successor in office, did not have the same control over Judge Kent’s orders as Judge Kent would have himself retained until the expiration of the term. State ex rel. Bloom v. Superior Court, 171 Wash. 536, 18 P.2d 510; State ex rel. Nelson v. Superior Court, 184 Wash. 97, 49 P.2d 903, 54 P.2d 1215; Columbia Mutual B. & L. Ass’n v. Mittnacht, 62 App.Div. 425, 70 N.Y.S. 1098.

Where a trial judge sets aside an order of his predecessor on any other ground than want of jurisdiction, without hearing further evidence, he exercises appellate rather than trial jurisdiction and has no power to do so. We gather from this record that Judge Graham set aside the order of Judge Kent on one ground, and one ground alone, that is want of jurisdiction on the part of Judge Kent to have entered the order.

Having determined that the 103rd District Court of Cameron County did have jurisdiction of appellants’ motion, on December 31, 1938, at which time Judge Kent granted them a new trial, Judge Graham had no power to set this order aside, and it stands as a valid order subject only to review by an appellate court, if and when it is properly presented to an appellate court.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

In our original opinion we stated that Judge Graham set aside Judge Kent’s judgment without hearing evidence, this is not correct. There was some evidence offered, but it is plain that Judge Graham did not base his action on any testimony introduced, but upon his belief that the motion had been overruled by operation of law or had been discontinued by reason of the long lapse of time it had been on file before Judge Kent granted the new trial.

We have examined appellees’ motion for a rehearing and it is in all things overruled: