author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    TIPTON v. STATE.
    No. 20622.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Jan. 31, 1940.
    Grady Hazelwood, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of forgery and given a penalty of two years in the penitentiary.

As the record will indicate in this case, the chief defense was insanity. That issue was properly submitted and the jury’s verdict is contrary to the appellant’s plea.

We are asked to reverse the case on the argument of the prosecuting attorney. It is admitted in the appellant’s brief, and we think the admission is warranted, that no one of the statements made by the prosecuting attorney, taken alone, would justify a reversal of the case. It is contended, however, that all of the arguments complained of, considered together, present reversible error. Conceding that such may be the case, still in the case at bar the statements of the prosecuting attorney, even if they were considered to be of an inflammatory nature, did not bear that relationship to the issue of insanity which would, in the least, be calculated to influence the minds of the jury on that particular issue. Only one statement .complained of related to insanity, and this bill is so qualified as to make the statement proper. If they had any effect, it would have been reflected in a more severe penalty. To the contrary, we find that the jury returned the lowest penalty which they were permitted to assess under the court’s charge. In the case before us, even if it should be conceded that the statements of the District Attorney were out of the record and inflammatory, it appears perfectly clear that they did not influence the jury in returning their verdict and would, therefore, be considered harmless.

The judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again complains because of the remarks of the district attorney in his argument to the jury, and also takes issue with some of the statements in our original opi'ri-ion herein. He takes issue with the opinion wherein it states that: “It is admitted in the appellant’s brief, and we think the admission is warranted, that no one of the statements made by the prosecuting attorney, taken alone, would justify a reversal of the case. It is contended, however, that all of the arguments complained of, considered together, present reversible error.”

Appellant contends that probably such a conclusion might be drawn from his argument relative to bills Nos. I, II and VII, but when taken together with his other bills, he renews his contention that same evidence serious error.

Appellant’s bill No. Ill, as qualified by the court, seems to have been an argument invited by the prior argument of appellant’s attorney. We are not in accord with appellant’s contention that same necessarily referred to appellant’s witness Dr. Swindell.

Bill of exceptions No. V complains because of the following argument of the district attorney: “Fellows like this one (referring to the defendant) who is a fraud, a cheat and a thief, and he got • money that did not belong to him, and probably has been practicing upon it for years.” The facts show that appellant did get money by means of what the State contended was a finished piece of forgery, hard to detect, .doubtless evidencing experience in copying the signature of others, so the State claimed, appellant's main objection going to the use of the word “thief”. We must confess there seems to us to be very little difference between obtaining a person’s money by a fraudulent taking and a forged instrument, .knowing the same to be forged. 'We do not think this is a reversible matter.

Appellant’s bill of exceptions No. VI is concerned with the abstract statement made by the district attorney that “Lying, cheating and stealing all go hand in hand.” This is possibly a matter of opinion alone, but the State claimed that there was in evidence certain statements that were unreasonable, contradictory and unbelievable which appellant claimed showed a condition of insanity, but which the State claimed were pure fabrications. We see no serious error evidenced by such a statement.

We do not mean to hold herein that an error committed in the trial of a c.ase is always cured by the fact that the jury awarded the accused the minimum penalty. We do mean to hold, however, that we see no error of a serious nature evidenced by appellant’s bills of exception.

The question of appellant’s sanity was properly presented to the jury under appropriate instructions, and their finding against him is supported by the State’s evidence.

The motion is overruled.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    COMPTON v. STATE.
    No. 20590.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1940.
    Scarborough & Ely, of Abilene, and James A. Stephens, of Benjamin, for appellant.
    J. R. Black, Dist. Atty., of Abilene, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

Appellant was charged with theft o'f six head of cattle belonging to W. N. Ellerd. In October, 1938, Mr. Ellerd worked for T. W. Lee on the Compton ranch in Shack-elford County. He had the care, management and control of Mr. Lee’s cattle. During the month mentioned, according to the testimony of Mr. Ellerd, several head of the Lee cattle were taken from his possession, which he later recovered from a ranch owned by-appellant’s mother, which was not far distant from Mr. Lee’s ranch. .The brands on the cattle had been changed. Appellant, his mother and brother lived on the ranch from which the cattle were recovered. A witness for the state testified to having seen appellant driving several head of cattle on the ranch of his 'mother. He testified, further, that he later saw one of these animals. It was shown in the testimony of the state that this animal belonged to Mr. Lee. Testifying in his own behalf, appellant stated that he had no knowledge that any of the Lee cattle were in his mother’s pasture. In short, his testimony constituted a denial that he had any connection whatever with the taking or receiving of said cattle.

In view of the disposition we make of the case we pretermit discussion of the sufficiency of the evidence.

It appears from bill of exception No. 6 that Mrs. Compton, appellant’s mother, had been placed in jail after Mr. Lee’s cattle had been discovered on her ranch. During the progress of the trial she was placed upon the stand by appellant and testified in his behalf. Upon cross-examination by the district attorney she was required to testify, over appellant’s proper objection, that officers told her at the time they placed her in jail that they found some of Mr. Green’s cattle on her ranch at the time Mr. Lee’s cattle were recovered, and that the brands on the cattle of Mr. Green had been • changed. The bill of exception is qualified to show that no reference was made in the testimony adduced upon the trial to the Green cattle save through 'the cross-examination of Mrs. Compton by the district attorney, as shown in the bill of exception. In short, it was not shown that Mr. Green had lost any cattle. Furthermore, it was not shown that the Green cattle referred to in the bill of exception were stolen cattle. The testimony in question was inadmissible on two grounds. In the first place, it was purely hearsay. Appellant was not present when the officers made the statements to the witness. In the second place, it was not shown that Mr. Green’s cattle were stolen. Hence there is nothing to indicate that appellant was guilty of the theft of the Green cattle. The jury might have concluded that the mere finding of the Green cattle on the ranch of the mother of the appellant was 'sufficient to show that he had stolen same.

It appears from bill of exception number eight that the state placed on the witness stand one Arthur Fite, who had testified before the grand jury concerning the identity of one of the Lee cattle which had been discovered upon the ranch of appellant’s mother. Upon taking the witness stand in the trial of the case this witness failed to give the testimony that he had .given before the grand jury. In short, he failed to give testimony to make out the state’s case, in that he was not positive in his identification of the animal in question, whereas- when he testified before the grand jury he appears to have been positive in his identification of said animal. After the witness had given his testimony upon the trial, the state pleaded surprise, and, according to the qualification appended to the bill of exception, it was on the ground of surprise that the court permitted the state to produce a statement of the testimony of the witness given before the grand jury and question the witness concerning same in an effort to impeach him. We think this bill of exception reflects reversible error. In Branch’s Ann.P.C., Sec. 164, it is said: “It is error to permit the state to impeach her own witness where such witness, merely fails to remember, or refuses to testify, or fails to make out the state’s case. A mere failure to make proof is no ground for impeaching such witness.”

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: . KRUEGER,' Judge.

text:
    KILGORE v. STATE.
    No. 20742.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.

      ■ ; No attorney for appellant.
    ■ Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   . KRUEGER,' Judge.

The offense is goat theft; the punishment assessed is confinement in the state penitentiary for a term of two years.

The record is before us without a statement of facts or bills of exceptions. The indictment is sufficient to charge the offense and procedural matters appear to be in dite order. .

The judgment is affirmed.

PER CURIAM.

■ The foregoing opinion of the Commis,sion of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: BEAUCHAMP, Judge.

text:
    WEBB v. STATE.
    No. 20761.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1940.
    Jno. W. Hill, of Rocksprings, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the theft of an automobile and given a sentence of three years in the state penitentiary.

The car in question was taken from its parking place by the hospital in Rock-springs sometime before midnight. The owner heard the car when the engine was started and immediately ran out. Finding it missing, he notified the sheriff’s office. Telephone messages to thSe surrounding towns gave the alarm, and in a few hours thereafter the appellant was arrested in the car by the city marshal of Sonora in Sutton County.

Appellant claimed on the trial of the case that a party (whose name does not appear among the witnesses in the case) hired him to take the car to another place and that he did so without any knowledge that it had been stolen. He also offered evidence to prove an alibi. All of this was submitted to the jury. The evidence conclusively shows that the car was taken without the consent of the owner in the county alleged in the indictment. All of the material allegations appear to be in the indictment and proof thereof made in the record. The issues of fact were decided by the jury under appropriate instructions.

We find no bills of exception in the record, and counsel for appellant did not file a brief in the case. We do not know what errors are relied upon, and we have found none sufficient to justify this court in disturbing the verdict of the jury and the judgment of the court

The case is affirmed.


author: GRAVES, Judge.

text:
    BLAIR v. STATE.
    No. 20628.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    On Motion to Reinstate Appeal Jan. 17, 1940.
    J. F. Mangum, of Crockett, for appellant.,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of robbery by assault, and assessed a penalty of five years confinement in the penitentiary.

Ah examination of the record fails to disclose that notice of appeal was given as required by law. Such is necessary to give this court jurisdiction. See Branch’s Ann.P.C., Sec. 588, p. 302, and the many authorities there cited.

The appeal is therefore dismissed.

On Motion to Reinstate Appeal

This cause has been heretofore dismissed because the record failed to contain a notice of appeal. It has now been made to appear by proper proof that such failure was an inadvertence upon the part of the clerk making up the record, but that a proper notice was given, and same passed into the minutes at the proper time. We therefore set aside our prior order herein, and proceed to consider the case upon its merits.

There are no bills of exceptions in the-record, and appellant merely urgently contends that the testimony is insufficient to establish his guilt.

It appears that the prosecuting witness was a hitch-hiking boy fourteen years of age, returning home from a time spent in school at Houston; that he obtained a ride with one Allen and appellant, who was the driver of the car. Appellant and his companion were drinking, and, according to the State’s testimony, soon after passing through the town of Lovelady ap-j pellant left the highway and drove off -qn a side road, and finally stopped the car, and Allen demanded of the prosecuting witness to see his bill-fold; the witness demurred,, and Allen picked up a coca cola bottle, and, holding the boy with his left hand, he drew the bottle back and said: “Boy don’t give me any trouble.” After that, the witness testified he gave up his billfold containing $14, and Allen took the money out and returned the bill-fold to the witness. Blair said nothing, but, still driving the car, they went back to the highway by another road, and went on down to a dance hall and tavern, and continued to drink and dance. They probably had some further trouble with the boy at that j>lace, and the boy finally got his suit case out of Blair’s car and left with other parties.

Appellant proves a good reputation, and took the stand and corroborated most of the prosecuting witness’ testimony, except that he denies any robbery or knowledge thereof.

Appellant says that the testimony is insufficient to show his guilt in that, according to the State’s own' witness, he had naught to do with the robbery. It is noticed that the court charged on the law of principals, and the testimony does conclusively show that the appellant Blair was in charge of and driving the automobile; that the prosecuting' witness was sitting between appellant and Allen; that the appellant drove the automobile off the highway on to a side road and stopped the same; that there the alleged robbery occurred, appellant still sitting under the wheel; that after the man Allen had obtained the contents of this boy’s bill-fold, the appellant turned the car back another side road and on to the highway, and from that place went to the tavern where they dined and danced. It seems to us that the appellant aided, encouraged and assisted the man Allen and acted together with him in the commission of this offense. He is bound to have known the unlawful intent of Mr. Allen when he turned off on to this side road and stopped the car, and sat there silent while Mr. Allen took this boy’s money away from him.

Complaint is also made in the motion for a new trial of misconduct of the jury. It is to be noted that one juror, Mr. Gools-by, was placed on the stand and interrogated, and his testimony does not evidence any misconduct at all on the jury’s part. We, also note that the remaining jurors were present on the hearing of the motion for a new trial and were tendered to the defendant, and that he failed to place any further jurors on the stand.

We find no error reflected in this record, and the judgment is affirmed.


author: HAWKINS, Presiding Judge. CHRISTIAN, Judge.

text:
    TARKENTON v. STATE.
    No. 20595.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    On Motion to Reinstate Appeal Jan. 17, 1940.
    J. T. Kelley, of Odessa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for attempting to pass a forged instrument, punishment being two years in the penitentiary.

The original transcript ”failed, to show any notice of appeal as required by Art. 827, C.C.P. By a supplemental transcript now before us there is shown a “docket entry” by the trial judge stating that notice of appeal was given, but it does not appear that such order was carried into the court’s minutes. It has been held many times that the docket entry is not a “record” entry as required by Art. 827. See 4 Tex.Jur., Sec. 123, p. 172, and cases there cited; also Lenox v. State, 55 Tex.Cr.R. 259, 116 S.W. 816; Haynie v. State, 92 Tex.Cr.R. 45, 241 S.W. 478; Bryson v. State, Tex.Cr.App., 20 S.W.2d 1047; Thackerson v. State, Tex.Cr.App., 26 S.W.2d 241.

The appeal is dismissed.

On Appellant’s Motion to Reinstate the Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

The indictment charged appellant •with the offense of attempting to pass as •true a forged instrument. The jury found appellant guilty of the offense of passing ■as true a forged instrument. The verdict fails to follow the charge in the indictment and the charge of the court, in that it finds appellant guilty of an offense not set forth in the indictment. Under the circumstances, we are constrained to order .a reversal of the judgment of conviction.

The judgment is reversed and the cause •remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals -and approved by the Court.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    SCHAFFER v. STATE.
    No. 20659.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Jan. 31, 1940.
    J. A. Collier, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for an assault and battery. The punishment assessed is a fine of $25.

The complaint and information contain two counts. In the first appellant was charged with simple assault and in the second count with aggravated assault and battery. When the case was called for trial, appellant waived a jury and entered a plea of guilty. The State, notwithstanding appellant’s plea of guilty, placed the injured party upon the witness stand, who testified that on the afternoon of March 6, 1939, appellant struck him with a piece of pipe as he was walking along upon Polk Avenue in the City of Houston, Harris County, Texas. Appellant' testified in his own behalf and placed his wife upon the stand, who testified that on two prior occasions the injured party had passed her home; that on each occasion he scraped his feet on the sidewalk, made a hissing noise with his mouth "and winked at her, of which she informed her husband, the appellant. On cross-examination, she was asked by the State if she did not state to the arresting officer that all the negro did was scrape his feet on the sidewalk and stare at her when she looked at him. She denied this and then the State called the arresting officer, who contradicted her and testified that she did tell him so in the presence of appellant. By bill of exception No. 2 he complains of the cross-examination of his wife relative to what she said to the officer on the ground that she was compelled, over his objection, to give testimony against him. We are unable to agree with him. When he placed his wife upon the witness stand she was subject to cross-examination or impeachment germane to her direct examination just as any other witness.

The record (bill of exception No.l) shows that appellant was found guilty of simple assault and battery, and the evidence, together with his plea of guilty, fully sustains the court’s conclusion of the appellant’s guilt.

No reyersible error appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of -the Commission of Appeals has been examined.by .the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Rehearing

BEAUCHAMP, Judge.

Since the opinion was handed down in this case appellant has discovered that the transcript erroneously stated that he had pleaded guilty. By a supplemental transcript this has been corrected and we have again considered the matter in the light of that correction. We are unable to see that any difference is made, as the principal complaint was not brought before this court in a proper manner, and we are unable to give it further consideration than that which was given in the original opinion. We find no error in the record, and the motion for rehearing is overruled.


text:
    Ex parte GILBERT.
    No. 20871.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1940.
    W. W. Ballard, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

This is a habeas corpus proceeding in-which the relator is held under the order of the City Health Officer of Wichita Falls pursuant to the provisions- of Art. 4445, Revised Civil Statutes. It is shown that the relator was ordered restrained because-she was believed to be a menace to the public health by virtue of being a prostitute afflicted with syphilis. Relator makes no contention that her restraint is illegal but insists that she should have been accorded a postponement of the hearing in order that she might prepare to show that she was not at the time suffering from syphilis. We think the record clearly shows that the relator knew why she was being restrained. Hence she should have been prepared for the hearing at the time she applied for- the-writ of habeas corpus. At all events, we do not understand that in this proceeding she can question the action of the judge below in declining to postpone the hearing. The proof adduced by the state at the hearing was to the effect that relator was a prostitute and was suffering from syphilis. We quote from Ex parte Hardcastle, 84 Tex.Cr.R. 463, 208 S.W. 531, 2 A.L.R. 1539, as follows:

“The- Legislature, under the police power, has authority to authorize the establishment of quarantine regulations for the protection of the public against contagion from those persons whose condition is such a-s-to spread disease, and, incident thereto, to authorize the arrest and detention of such persons; and such, we understand, is the purpose of the statute in question. Under its terms, the proper health officer may issue a warrant by virtue of which a lawful arrest may be made without preliminary thereto affording the person affected a hearing; but if, after arrest, such person, challenges the right of the authorities to continue the detention, the fundamental law accords him the right to have the legality of his detention inquired into by a proper court in a habeas corpus proceeding.. The law denies to no one restrained of hiá liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist. Ruling Case Law, vol. 6, p. 435, § 449. The health authorities causing the arrest of relator derive their power to do so from the alleged existence of the fact that the relator is affected with the disease mentioned, and that her detention is required in the public interest to prevent contagion. If those facts do not exist, the officer has no jurisdiction ‘to continue the restraint and the court in the habeas corpus proceeding has authority to inquire whether the facts essential to jurisdiction exist. Ex parte Degener, 30 Tex. App. 566, 17 S.W. 1111.”

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


text:
    HOWK v. STATE.
    No. 20722.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1940.
    Jack Flock, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. *
   GRAVES, Judge.

In a trial before the court appellant was convicted of swindling by means of giving a check to one Katherine Stovak, when he had no funds in the bank on which the check was drawn at the time of giving such check, etc.

In the outset of this case we are met with a motion to quash the complaint and information because of the following portion thereof: “That she has good reason- to believe and does believe that heretofore, to-wit: on or about the 12th day of June A. D. 1938, and before the making and filing of this complaint, in the County of Leon and State of Texas, O. L. Howk did then and there unlawfully and fraudulently, and by the use of false and deceitful pretenses and devices and fraudulent representations, acquire from the possession of Cresent Cafe, owned by Katherine Stovak certain corporeal personal property belonging to the said Katherine Stovak, to-wit: personal property of the value of Six Dollars, with the intent' to deprive the said Katherine Stovak of the value thereof,” etc.

It is our opinion that “personal property of the value of six dollars” is too general an allegation to apprise appellant of the charge against him. It would include any and all kinds of property to that value, except real estate.

Art. 403,- C.C.P., reads: “When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. * * *”

'In Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095, we held, in substance, that allegations of like import to the instant case should be direct and positive, and as nearly as possible should describe the personal property, — not merely classify it as such, The description herein given is as wide as it could possibly be, the statute being based only upon the unlawful acquisition of personal-property.

In the' case of Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040, we held an in-', dictment fatally defective that merely described the property acquired by the alleged swindle as “certain lubricating oil.”

It is plain, also, that the pleader knew that the property so acquired was $6 in money, and therefore could have so said in this complaint and information. This would have been in accord with good pleading, and we think a failure to so allege should result in a dismissal of this prosecution.

In the event of another trial hereof we think there should be some proof made as to whether there were sufficient funds in the bank upon which this check was drawn to have paid the same, etc., at the time of its passing. See Fortune v. State, 125 Tex.Cr.R. 11, 66 S.W.2d 304, also Baker v. State, 128 Tex.Cr.R. 509, 82 S.W.2d 677.

We also think there should have been some showing of the loss of the check complained of as the basis of this swindle, or its absence satisfactorily accounted for, before secondary evidence could be resorted to in order to prove its contents.

The judgment is reversed and the prosecution ordered dismissed.


author: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    LUCAS v. STATE.
    No. 20615.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1939.
    On Motion to Reinstate Appeal Jan. 17, 1940.
    Roi Blake and Adams & Hillin, all of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for assault with intent to rape; penalty assessed at confinement in the penitentiary for two years.

The record contains no notice of appeal. Article 827, C.C.P., requires such notice to be given “in open court” and “entered of record”. The transcript in the present instance shows only a “docket entry” of the notice of appeal, which is not sufficient to confer jurisdiction upon this court to consider the appeal. See Casey v. State, 116 Tex.Cr.R. 111, 32 S.W.2d 461; Bagley v. State, 126 Tex.Cr.R. 1, 70 S.W.2d 177. Therefore, upon the record before us, the appeal must be dismissed, and it is so ordered.

On Appellant’s Motion to Reinstate Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant brings forward two bills of exception, which complain of the argument of counsel for the state. These bills set forth extended arguments made by counsel for the state, some of which appear to have been proper. The bills fail to single out the objectionable parts of said argument. The objections go to the entire argument. ' Under the circumstances, we must hold that-such bills fail to reflect reversible error. We quote from 4 Texas Jurisprudence, 389, ,as follows: “A bill of exceptions complaining of the argument or remarks of the attorney for the state must, of itself, manifest the error complained of. Accordingly, it must set out as a fact that the language complained of was used and must point out the particular argument or language of which complaint is made, especially where it sets out extended argument, or where some of the remarks disclosed are proper. Insufficient also is a bill which complains of the argument as a whole, when a part of it is permissible and pertinent.”

See Gray v. State, 109 Tex.Cr.R. 481, 5 S.W.2d 518, and McVicker v. State, 100 Tex.Cr.R. 598, 272 S.W. 166.

Appellant insists that the evidence is not sufficient to support the judgment of conviction. We are unable to agree with him.

It was charged in the indictment that prosecutrix, Tommie Ray Gilbert, was under the age of eighteen years and was not the wife of the appellant. Mrs. Bertha Capíes, the mother of prosecutrix, testified that prosecutrix was approximately twelve years of age at the time of the commission of the alleged offense. She also testified that on the date of the alleged offense appellant had taken prosecutrix to the picture show. Prosecutrix testified to having started to the picture show with appellant and Allie Agnes Letney, who was approximately eleven years old at the time. She testified further that appellant told her that it was too early to go to the show, and that he was going for a ride; that he took her and her companion to the park; that after they reached the park appellant told Allie Agnes to get out of the car and go down the creek; that she (prosecutrix) and appellant were left alone in the car; that after Allie Agnes left appellant told her (prosecutrix) “he was going to do it;” that she told him that he could not. At this juncture we quote from the testimony of prosecutrix, as follows: “Ralph Lucas was trying to do it to me. Ralph grabbed hold of me. I was crying and I tried to get up. I tried to get Ralph to leave me alone. Ralph used some ugly words. I have done said the ugly words that Ralph said. Ralph put his hands on my privates. Ralph put his finger in my private. I was crying. When Ralph said he was going to do it, I said he wasn’t going to do it. Ralph stopped bothering me like that because I told him he had better, that I was going to tell it on him. I was crying and fighting Ralph. After Allie left it was about two minutes before Ralph bothered me. The first thing he did was push me down on the seat. Then Ralph said he was going to do it and I told him he wasn’t and I began to fight him. When Ralph said he was going to do 'it he used an ugly word. That ugly word was 'f — k’. I knew what Ralph meant by that. I was crying and fighting Ralph off. Ralph put his hands on me and stuck his finger in my private. Ralph quit because I was crying and fighting him and told him I would t'ell on him if he didn’t.”

Allie Agnes Letney testified to having gone to the park with appellant and pros-ecutrix. Further, she testified that it was dark at the time and that appellant told her to take his flashlight and go down the creek. Again, she stated that after she returned to the car she, appellant and pros-ecutrix went to the picture show together.

Testifying in his own behalf, "appellant denied that he had been to the park with prosecutrix. In short, his testimony constituted a denial of guilt. Appellant introduced a physician who had examined pros-ecutrix. His testimony was to the effect that there was no indication that her female organ had been penetrated in any manner.

We think the evidence is sufficient to have warranted the conclusion of the jury that appellant made an assault upon prosecutrix with the present intent to have sexual intercourse with her. See Douglas v. State, 132 Tex.Cr.R. 258, 103 S.W.2d 745, and Hightower v. State, 65 Tex.Cr.R. 323, 143 S.W. 1168.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court qf Criminal Appeals and approved by the Court.


author: McCLENDON, Chief Justice.

text:
    POYNOR v. ADAMS.
    No. 8861.
    Court of Civil Appeals of Texas. Austin.
    Dec. 30, 1939.
    Rehearing Denied Jan. 17, 1940.
    T. R. Johnston, of San Angelo, for appellant.
    Murphy & Leslie, of San Angelo, for ap-pellee.
   McCLENDON, Chief Justice.

This appeal is from a- judgment in favor of Adams against Poynor alone in a suit by Adams against Poynor and Robinson as partners upon a promissory note executed by Poynor alone and payable to Adams. The only ground for reversal is the assertion that Adams’s petition was insufficient to support a judgment against Poynor as sole obligee on the note, since it was allegéd (and only alleged) that the note was executed by Poy-nor in a partnership transaction.

The petition copies the note in haec verba, and there was a prayer for general relief. The note was, as stated, signed by Poynor alone, and bore no evidence of being other than his individual obligation. Poynor and Robinson filed separate answers in each of which was a verified denial of the existence of any partnership relation between them. Execution of the note was not denied. Poy-nor’s answer contained additionally a cross-action for damages against Adams upon the allegation that at the time the suit was filed Poynor was “working out of the office of” Robinson, on commission in the sale of real estate, and Robinson was joined in the suit “for the sole and only purpose of embarrassing and harassing” Poynor “into the paying of the note alleged, and so to cause” Robinson “to sever his connection with” Poynor. It was alleged that such was the result of such joinder, to Poynor’s damage in the sum of $400, for which he sued.

We hold:

(1) The petition showing on its face that the note as drawn was an individual obligation of Poynor, and there being a prayer for general relief, it was sufficient to support the judgment.

(2) The answer of Poynor, denying under oath partnership liability on the note, and not denying under oath execution of the note, but-pleading a cross-action growing out of his individual liability thereon, was tantamount to an admission of such individual liability; and was therefore sufficient to support the judgment.

The trial court’s judgment is affirmed.

Affirmed.


author: WALTHALL, Justice.

text:
    BUMPUS v. COBB et al.
    No. 3884.
    Court of Civil Appeals, of Texas. El Paso.
    Dec. 21, 1939.
    Rehearing Denied Jan. 11, 1940.
    Wynne & Wynne, of Longview, for appellant.
    H. M. Harrington and Harrington & Harrington, all of Longview, for appellees.
   WALTHALL, Justice.

In 1931, Celia Cobb and others, appellees here, brought this suit in the District Court of Gregg County, Texas, against Raymond Bumpus, appellant here, and others. The suit was in trespass to try title to the lands therein described. The suit primarily was to establish title and the right of possession to the lands involved in plaintiffs and to cancel certain oil and gas leases on said lands claimed by Raymond Bumpus, to have a receiver appointed for said properties described with powers described, and with such further orders as may be given during the receivership. '

The trial court appointed J. Malcolm Crim receiver.

The disputed matters as to title to said property were tried; judgment on the merits of the original litigation in the suit was in all things affirmed on appeal by the Court of Civil Appeals at Texarkana (Bumpus v. Cobb, 71 S.W.2d 925); the mandate was issued and filed in the trial court; the trial court entered an order in conformity with the mandate, directing the receiver, during the receivership, to pay to Celia Cobb 4(fends of the bonus and oil payment impounded moneys as received.

This appeal is prosecuted by Raymond Bumpus from the final judgment of the trial court closing the receivership proceeding, and in which Raymond Bumpus claims he was denied full relief; in that he was denied a money judgment against H. M. Harrington, one of the attorneys for ap-pellees, in the distribution of the money under the receivership.

The circumstances under which Bumpus claims a judgment against attorney H. M. Harrington are not in dispute and are substantially as follows:

The evidence and the record entries pertinent tb the matter at issue, in addition to what has been stated above are lengthy, and we state from the record as briefly as possible and in substance only the following:

On February 21, 1936, and while the case was in court, and the property in the hands of the receiver, appellee' Celia Cobb, through her attorney, H. M. Harrington, obtained from the trial court the following order:

“On this the 21st day of February, 1936, came on to be heard the application of Celia Cobb to draw down funds in the hands of receiver and for an order directing the receiver, J. Malcolm Crim, to pay to her order the sum of $5,000.00; and, it appearing to the court that the receiver now has on hand in excess of $5,000.00 belonging to-said Celia Cobb, and that she is entitled to. withdraw said sum at this time:
“It is therefore ordered, adjudged and decreed by the court that said receiver, J.. Malcolm Crim, pay to H. M. Harrington, attorney of record for Celia Cobb, for her use and benefit, the sum of $5,000.00 out of funds now in his hands.
“Will E. Hurst, Judge Presiding.”

The $5000 was paid by the receiver to Harrington, and he in turn gave the entire amount to Celia Cobb.

On October 5, 1936, Bumpus filed in said cause a motion whereby he sought in effect to have the $5000 returned to the custody of the receiver. Service of the motion was had on Celia Cobb and H. M. Harrington.

Celia Cobb, by her attorneys, Harrington & Harrington, filed her answer to the motion. The answer is lengthy anil we think we need not state its substance, more than to say that it contained a history of the suit and made no denial of receiving the money from the receiver under the order of the court.

The receiver also filed his final report as receiver, and in the report referred to the order of the court directing the payment of the $5000 to Celia Cobb, and that in response to said order he had made such payment.

Bumpus filed a supplemental motion reciting in effect the sums of money paid him and showing that $4,302.86 was still due him, and that if the $5000 was paid to Celia Cobb and Harrington, it was paid without notice and was unauthorized, and asked that he have judgment that the receiver pay him the money, and in the alternative that the receiver be directed to pay him a stated balance in the hands of the receiver, and the balance due him at the end of the litigation between the receiver and Celia Cobb and her attorney, H. M. Harrington.

The court heard the evidence on the motions and on November 1, 1938 rendered judgment on the final account of the receiver.

The judgment recites that plaintiffs, Celia Cobb and others, appeared through their attorneys of record, Harrington & Harrington, then recites the appearance of Bumpus and the receiver. The judgment then recites that the court then proceeded to audit and consider the receiver’s report and account, “as well as the motion of the defendant, Raymond Bumpus, for the receiver to pay to Raymond Bumpus the sums of money heretofore adjudged to be property of Raymond Bumpus by the judgment of this court, and also to consider the respondent’s answer, as filed herein by the respondent Celia Cobb and her attorney, H. M. Harrington.” The court then in the judgment in auditing the receiver’s report considered matters not pertinent to matters here, and to which we make no reference.

The court then in the judgment referred to the order the court had theretofore given to the receiver to pay Celia Cobb the $5000, and said “The court finds that H. M. Harrington did not personally receive any of the money after he, cashed the check which the receiver had issued.” The court further said, “the order was signed by the court under the mistaken belief that the receiver .held the sum of $5000 to the Celia Cobb %2nd interest,” and the court was further of the opinion that “the receiver paid said money in good faith and in reliance upon the order of the court and the representations of the attorney of Celia Cobb as to the money on hand to cover the various judgments,” and held that the receiver “should not be liable unless he can secure the money back from Celia Cobb, and the said Celia Cobb is directed to pay the money back to the receiver.”

The court later in the judgment directed the receiver to pay a balance of money on hand to Bumpus, approved the report and final account of the receiver, entered an order that the receiver and his bondsmen be discharged, and that the balance of the money recovered by Bumpus in the former judgments \and delivered to the receiver, “shall only "tje payable to the said Raymond Bumpus inHhe event the said receiver should receive the same from Celia Cobb.” \

The trial court furthet in the judgment said: “It is further ordered, adjudged and decreed by the court that, ⅛ the respondent H. M. Harrington delivered all of said $5000.00 to Celia Cobb and ijer representative after he cashed the check-, of the receiver, neither the receiver nor the defendant Raymond Bumpus are entitled to recover anything of the said H. M. Harrington, respondent, and that the said H. M. Harrington be discharged with his costs.”

To the above action of the court the appellant excepted and duly prosecutes this appeal.

Appellant filed one assignment of error, and thereunder presents one .proposition. The contention of appellant is to the effect that the trial court was in error in refusing appellant recovery against Harrington for $2,658.97, that being the money due appellant under the undisputed facts in the statement of the case; that appellant was prevented and hindered from receiving the money due him by reason of Harrington’s action in securing the court to issue the order to the receiver to pay his client the $5000, or as much of it as he was entitled to receive, referred to in the statement of the facts.

We have concluded that in considering the disposition to be made of the case we need not consider or discuss the circumstances under which money paid out may be required to be returned or paid back. Harrington did not receive the $5000, or any part of it, from‘Bumpus. There was no contractual relation between Bumpus and Harrington as to the money. Harrington was not a party to the suit and his relation to the court in the suit was that of an attorney to one of the litigants in the suit. The record shows that what he did in the matters pertaining to the suit was done for his client, Celia Cobb, and not for himself; he received the money from the receiver for his client on the order from the court; the court made the order for such payment on the application of Celia Cobb for the money in the hands of the receiver and that the order for the money be directed to the receiver, and to be paid to her by the receiver as money belonging to her and which she was entitled to withdraw from the receiver; the order was so written and a check payable to Celia Cobb and to H. M. Harrington, given by the receiver to Harrington, as attorney of record for Celia Cobb. The record shows and the court found that Harrington gave all of the money to Celia Cobb, retaining none of it.

Where money is improperly withdrawn from the hands of the receiver, the court, nq doubt, can, and in this instance did, inquire into the matter, and if improperly withdrawn, require that it be returned to the receiver. The court, acting on a motion of Bumpus, made such inquiry, heard the evidence and entered the orders referred to above, in which the court adjudged that the receiver, for the use and benefit of Bumpus, recover from Celia Cobb a part of the $5000, with interest, and for which the receiver and Bumpus should ■have their- writs and process for the enforcement of the judgment.

But no such order, judgment or decree was made- or rendered as to Harrington. The court made no order by which Harrington was directed to return the money or any part of it to the receiver, or was made liable for the receiver or to Bumpus for any part of the money.

If Harrington is liable to Bumpus for any part of the money it must be by reason of the facts found in the statement of facts and not by reason of any finding, judgment or decree of the trial court.

An appeal is prosecuted from a final judgment. We doubt that the record shows such finality of judgment as to Harrington from which this appeal will lie. But without discussing or deciding the question of the finality of the judgment alone, we have concluded that the record does not show such prosecution of a cause of action by Bumpus against Harrington as would justify the count in rendering a judgment in favor of Bumpus against Harrington, and for that reason the case must be affirmed, and it is so ordered.

The costs of this suit of Bumpus against Harrington are taxed against the appellant, Bumpus.

Affirmed.


author: FOLLEY, Justice.

text:
    RICKETTS et al. v. ALLIANCE LIFE INS. CO. et al.
    No. 5065.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1939.
    On Rehearing Dec. 4, 1939.
    Second Rehearing Denied Jan. 15, 1940.

      •Carl Gilliland and James C. Gilliland, both of Hereford, for plaintiffs in error.
    Morgan, Culton, Morgan & Britain and Ben P. Monning, all of Amarillo, and Henry D. Akin, of Dallas, for defendants in error.
   FOLLEY, Justice.

On July 18, 1914, Mary E. Ashbrook, wife of D. F. Ashbrook, both of Deaf Smith County, Texas, executed her last will and testament. The first and second paragraphs of the will provided respectively for her burial in a Christian-like manner and for the payment of her just debts. The sixth paragraph appointed her husband as sole executor without bond. The third, fourth and fifth paragraphs of the will are important in the disposition of the case before us. They are as follows:

“Third. I give, devise and bequeath to my beloved husband, D. F. Ashbrook, during his life, for his use and benefit during his life the following described two tracts of land lying and being situated in Grundy County, Missouri, to-wit: The Northwest quarter (¾) of Section No. (21) Twenty One, Township No. (63) Sixty Three, Range No. (23) Twenty Three, containing 160 acres. Also the Northwest (¼) quarter of Section (IS) Fifteen, Township (63) Sixty Three, Range (24) Twenty Four, excepting 20 acres out of the Southwest corner of the Northwest (½) quarter of Section (21) Twenty One, being the same land deeded to me by my father, John F. Wolz, on September 25th, 1913, which deed is recorded in Book 125 at page 615 in the recorder’s office. And upon the death of my said husband, I give, devise and bequeath said two above described tracts of land to my brother, W. Fred Wolz, in fee simple, but in the event my said brother is not living, I give, devise and bequeath said two tracts of land to the bodily heirs of the said W. Fred Wolz, in fee simple, share and share alike.
“Fourth. I give, devise . and bequeath to my beloved husband, D. F. Ashbrook, after the payment of my just debts out of same, the residue of my estate whether real, personal or mixed, in fee simple, to be owned, managed and disposed of as he may see proper; Provided, my said husband departs this life prior to my demise, then and in that event, I give, devise and bequeath all the property, real, personal or mixed of which I may die seized or possessed, except that mentioned in Paragraph “Third” above, to the M. E. Church of Spickard, Missouri, in fee simple. I prefer the property to be used for a church building in case there is no good one there.
“Fifth. It is my desire and request that whatever property may be received by my husband under this will shall be managed and handled by him in such manner that it and its proceeds be always kept separate and distinct from any property owned by him at the time of my death or accumulated by him thereafter. It is my desire and request that all the property or its value, which my said husband shall receive under this will shall ultimately pass to and vest in the M. E. Church of Spick-ard, Missouri, in fee simple. Provided he shall at all times feel free to use or dispose of same for his needs, or comforts during his life. It is my desire and request that my said husband shall not, during his life or at his death, give or bequeath any part of the property received under this will to any one other than to the M. E. Church of Spickard.”

On March 6, 1922, Mary E. Ashbrook died and the above will was forthwith duly probated in the County Court of Deaf Smith County, D. F. Ashbrook, the surviving husband, qualifying as executor under the will. At 'the time of her death, among other lands, as a part of her separate estate she owned two quarter sections of land in Deaf Smith County, Texas, one known as M. H. Cahill Pre-emption Survey and the other as the W. A. Hunt Pre-emption Survey, both aggregating 320 acres of land.

On November 1, 1925, D. F. Ashbrook, the surviving husband, executed two notes each in the original sum of $2,400, payable to the order of the Commerce Farm Credit Company. In order to secure the payment of the first note he executed a deed of trust in favor of Jo Zach Miller, III, Trustee, upon the M. H. Cahill Pre-emption Survey. In order to secure the second note a like deed of trust was given upon the W. A. Hunt Pre-emption Survey.

On November 10, 1925, in a general warranty deed from R. L. Elliston and wife, Ella Elliston, conveying Lot 22 and the N½ of Lot 21, in Block 18, of the town of Hereford, Texas, from the Ellistons to J. O. Newell and D. F. Ashbrook, Newell and Ashbrook, as a part consideration, assumed an indebtedness in the sum of $10,000, with interest, due W. E. Neal, which indebtedness was secured by a lien on the property therein conveyed. On November 21, 1925, in a written agreement between Neal, Newell and Ashbrook, the maturity of this indebtedness was extended to November 1, 1930. On January 11, 1929, D. F. Ash-brook died leaving a will in which he devised to the Methodist Episcopal Church at Spickard, Grundy County, Missouri,, all the property which he had received under the will of his deceased wife which had not been disposed of by him prior to his death. The two tracts of land above referred to had not been sold by him at the time of his death. W. M. Ashbrook, brother of the testator, was named executor in this will. The will was probated April 4, 1929, in Deaf Smith County, and on such date W. M. Ashbrook qualified as executor. Thereafter on April 21, 1929, W. M. Ashbrook died. .On September 26, 1934, J. C. Rick-etts was appointed administrator de bonis non with will annexed of the D. F. Ash-brook estate. On October 3, 1934, W. E. Neal filed in such probate proceedings his claim which was based upon the $10,000 indebtedness assumed and renewed by D. F. Ashbrook as aforesaid. Such claim was approved by the administrator and by the probate court on October 17, 1934.

On November 9, 1929, the Methodist Episcopal Church of Spickardsville (Spiclc-ard), Missouri, for valuable consideration, conveyed to Lizzie B. Ashbrook the two tracts of land above described, together with other lands not the subject of this controversy. Thereafter, on November 1,1932, Lizzie B. Ashbrook executed two notes each in the sum of $1,800 payable to the Monarch Loan Company for money advanced by such company to pay the balance due on the two $2,400 notes executed by D. F. Ash-brook as aforesaid during his lifetime, which notes were secured by deeds of trust executed by Ashbrook upon the two tracts of land. Lizzie B. Ashbrook executed separate deeds of trust upon the two tracts of land to secure the two $1,800 notes. On August 17, 1933, Lizzie B. Ash-brook executed to R. W. Ashbrook, in favor of Peter Austin, a trust deed upon the two tracts of land in controversy, together with other lands, to secure an indebtedness to Peter Austin in the sum of $12,000. In due course the Alliance Life Insurance Company became the owner of the two $1,800 notes and the two deeds of trust securing them.

On June 13, 1937, by an original petition, and on July 19, 1937, by an amended petition, the Alliance Life Insurance Company sued Lizzie B. Ashbrook upon the two $1,800 notes, alleging that the will of Mary E. Ashbrook should be interpreted and construed by the district court, asking for judgment for the debt and a foreclosure of the liens upon the two tracts of land, and alleging that the district court had jurisdiction of the subject matter by reason of the necessity to construe the will and to. determine the validity of, and foreclose, the liens of the Alliance Life Insurance Company. In addition to Lizzie B. Ashbrook, the Alliance Life Insurance Company also sued W. E. Neal, J. C. Ricketts, as administrator de bonis non with will annexed of the estate of D. F. Ashbrook, deceased, the Monarch Loan Company and Peter Austin. The Alliance-Life Insurance Company alleged that these last named defendants were asserting claims of some sort to the land in question and asked for a foreclosure against all of the defendants. The Alliance Life Insurance Company further asked that in the event the court should find that the land in question became a part of the estate of D. F. Ashbrook, that its debt and lien be established and the judgment certified to the probate court of Deaf Smith County for observance.

J. C. Ricketts, as administrator de bonis ñon with will annexed of the estate of D. F. Ashbrook, deceased, and W. E. Neal, as a purported creditor, filed a cross-action asking that the Alliance Life Insurance Company take nothing by reason of its suit; that they have judgment against the Alliance Life Insurance Company, Lizzie B. Ashbrook and Peter Austin cancelling and annulling the deeds of trust executed by Lizzie B. Ashbrook in favor respectively of the Alliance Life Insurance Company and Peter Austin, and removing such liens and claims of superior rights as clouds on the title to said lands as hinderances and interferences with the administration of the estate of D. F. Ashbrook, deceased; and further asking that the rights of Neal, as a creditor of the estate, and of Ricketts as administrator, be adjudged superior to the debts and liens held by the Alliance Life Insurance Company and Peter Austin.

The Alliance Life Insurance Company answered such cross-action by asserting that under the will of Mary E. Ashbrook the surviving husband took only a life estate in said property with remainder to the Methodist Episcopal Church of Spickard, Missouri, or burdened with a trust in favor of such church, and that upon his death the property passed, to such church free of Neal’s claim. Such life insurance company further alleged that Lizzie B. Ashbrook took title to said land regardless of whether the estate conveyed to D. F. Ashbrook by the will of Mary E. Ashbrook was a life estate or a fee-simple estate; that if the devise was merely a life estate then the remainder passed to the church under the will of Mary E. Ashbrook free of the debt and claim asserted by Neal; and that' under any construction of the will the rights of the Alliance Life Insurance ■Company and of Lizzie B. Ashbrook were superior to those of Neal and the administrator. Lizzie B. Ashbrook in answer to the cross-action, whose pleading was adopted by Peter Austin, her mortgagee, and by Dewey 0. Hedrick, her tenant, who intervened in the cause, entered a general denial, a plea of not guilty, specially pleaded her title to the land free from any claims of the administrator and W. E. Neal, further asserted that she had perfected title to the property under the three and five year statute of limitations and that any right to set aside the deed to her from the church was barred by the four year statute of limitations. Vernon’s Ann.Civ.St. arts, 5507, 5509, 5520. The Monarch Loan Company filed a disclaimer.

The trial court in construing the will of Mary E. Ashbrook found that the fee-simple title to the two tracts of land vested in the Methodist Episcopal Church, Spickardsville, Missouri, upon the death of D. F. Ashbrook on January 11, 1929, free and clear of any claim of the estate of D. F. Ashbrook, deceased, which church conveyed the property to Lizzie B. Ashbrook by deed dated November 9, 1929, and filed for record on November 27, 1929, since which time Lizzie B. Ashbrook has had and held peaceable, continuous and adverse possession of the two tracts of land; that W. E. Neal is the sole creditor of the estate of D. F. Ashbrook, deceased, and his right to subject said property to the payment of his claim against said estate or to enforce a statutory lien thereon is barred by the three and five year statutes of limitation, since his cause of .action accrued on November 1, 1930, at which time Lizzie B. Ashbrook was a nonresident of the State of Texas, residing in Missouri; that Lizzie B. Ash-brook has a limitation title to the two tracts of land as against W. E. Neal and J. C. Ricketts, Administrator, under the three and five year statutes of limitation; that any right to set aside the deed to Lizzie B. Ashbrook from said church is barred by the four year statute of limitations; that W. E. Neal and J. C. Ricketts, Administrator, are entitled to. take nothing by their cross-action; that the title and possession of the land should be decreed and vested in Lizzie B. Ashbrook, free .and clear of the interest, equity or claim of W. E. Neal and J. C. Ricketts, Administrator, subject to the first lien held by the Alliance Life Insurance Company, subject to the lien held by Peter Austin and the lease contract held by Dewey O. Hedrick; and that the Alliance Life Insurance Company is entitled to have judgment against Lizzie B. Ashbrook for its debt, and to have its respective deeds of trust liens against the respective tracts of land foreclosed against Lizzie B. Ashbrook and all the other parties to the suit adversely interested. The effect of the above finding with reference to the construction of the will of Mary E. Ashbrook was that under its provisions only a life estate in the lands in controversy passed to D. F. Ashbrook, the surviving husband. The trial court thereupon rendered judgment in accordance with these findings. From this judgment W. E. Neal and J. C. Ricketts, the administrator, have perfected a writ of error to this court.

There is no controversy in this court between Lizzie B. Ashbrook on the one hand and the Alliance Life Insurance Company and Peter Austin on the other. She admittedly has no defense against their respective claims since she executed deeds of trust in their favor after she acquired the lands by deed from the Methodist Episcopal Church of Spickardsville, Mis-' souri. This action on her part created liens on the property in favor of these parties upon whatever interest she had in the land. In this connection it should be said that Peter Austin asked for no affirmative relief and was granted none by the court with reference to his debt and foreclosure of his liens against Lizzie B. Ash-brook, and therefore no issue is presented in this respect. The only controversy in the case with reference to Peter Austin is whether or not the court was correct in refusing Neal and the administrator any relief on their assertion that Neal’s claim was superior to that of Peter Austin.

The construction of the will of Mary E. Ashbrook was the chief controversy in the court below and is the most important issue in this court. The paramount question presented in the interpretation of such will is to determine whether under such will a fee-simple title to the land in question passed to D. F. Ashbrook or merely a life estate with power of sale. If only a life estate with power of sale passed to D. F. Ashbrook, such land could not be charged with the debt of Neal,which was ■ assumed by D. F. Ashbrook after the property passed to him under his wife’s will. On the other hand if a fee-simple title without limitations passed under the will of Mary E. Ashbrook, the land, as a portion of D. F. Ashbrook’s estate at the time of . his death, would be charged with the debt so assumed unless defeated by the ■defense of limitations urged’by Lizzie B. . Ashbrook.

There can be no doubt that paragraph four of the will of Mary E. Ash-brook, as above set out, standing alone, would have vested in D. F. Ashbrook the fee simple title to the lands in controversy, the only limitation or restriction placed upon said title in such paragraph being that if D. F. Ashbrook should die before the testatrix such property should pass to the church. This contingency did not occur and therefore such limitation did not become effective. It is an elementary rule of law, however, that in construing a will the intent of the testator must be ascertained, not from one paragraph, but from the will as a whole. The chief controversy in determining the intent of the testatrix in this case is th& meaning of the fifth paragraph of the will as to whether or not such paragraph, construed in connection with paragraph four, and the will as a whole, placed a restriction or limitation upon the estate to be taken by the surviving husband. It is the contention of Neal and the administrator that the language used in paragraph five was merely precatory and not mandatory. The Alliance Life Insurance Company and Lizzie B. Ash-brook contend just to the contrary.

It is our opinion that the language of the fifth paragraph of the will'is merely precatory and not testamentary in character. It will be noted that in each the third and fourth paragraphs, the testatrix in dealing with the property involved used the words “I give, devise and bequeath”. In each of these paragraphs this expression is twice used. In the third paragraph the expression is used in the life estate devised to her husband, and again in disposing of the Missouri land at his death by the devise to her brother, in fee-simple, if living, and if not, to his bodily heirs. The expression is used in the fourth paragraph when she devises the residue, which included the Texas property, to her husband, and again used in the contingent disposition to the church in the event she outlived him. But beginning with the fifth paragraph the above expression is dispensed with and the words “It is my desire and request” are substituted. We think this fact is very significant. If she had used the latter words in the third and fourth paragraphs as well as in ’ the fifth paragraph there would be more merit in the contention that the language of the fifth paragraph is mandatory; but such is not the case. After having disposed of all her property in paragraphs three and four she then expresses her desires that the devisee under her will keep the property thus received separate from all other property and that the property ultimately pass to the M. E. Church- of Spickard, Missouri.

In the case of Burt et al. v. Herron’s Executors, 66 Pa. 400, 402, the Supreme Court of Pennsylvania said: “It is undoubtedly true that where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not in general convert the devisee or legatee into a trustee, unless indeed it appear affirmatively that they were intended to be imperative. * * * Should a testator say merely, T desire A. B. to have a thousand dollars,’ it would be as effectual a legacy as if he was expressly to direct or will it, or were to add, ‘out of my estate,’ or that it should be paid by his executor. The reason is obvious. A will, in its very nature, is the disposition which the testator desires to have made of his- estate after his death. All the expressions in it indicative of his wish or will are commands. It is different when, having made a disposition, he expresses a desire that the legatee or devisee should make a certain use of his bounty.”

In Miller v. Stubbs, 244 Pa. 482, 90 A. 1132, 1133, the same court had under consideration a will containing the following language: “‘All the residue of my estate, real and personal, of which I shall die seised and possessed, I bequeath absolutely to my beloved wife, Annie Arnot Dickey, desiring that she shall use such portion of my estate as may seem best to her in the education and support of my beloved son, Robert Graham Dickey, and of my beloved daughter, Edith Scott Dickey, and in case of her remarriage pay ten thousand ($10,-000) dollars to each of them then living.’ ” In construing this will the court said:

“Under the words ‘all the residue of my estate, real and personal, of which I shall die seized and possessed, I bequeath absolutely to my beloved wife, Annie Arnot Dickey,’ the appellee was given the residue of the testator’s personal estate absolutely, and there passed to her a fee simple in his real estate. What was thus absolutely given to her is not to be cut down by the words which immediately follow, unless they unequivocally show an intention of the testator to reduce the estate given in the first instance. A clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal. * * *
“While expressions of a desire or wish of a testator as to a specific disposition of his property, standing by themselves alone, may establish a valid bequest or devise, this is not the rule when such expressions are used after the testator has made an absolute disposition of his property. After an absolute bequest or devise has been made, no precatory words of the testator to his legatee or devisee can defeat the estate previously granted. Hopkins v. Glunt, 111 Pa. 287, 2 A. 183. * * *
“In the present case the testator, after having made a disposition of his estate absolutely, merely expressed a desire that his residuary legatee should make a certain use of his bounty. He did not dispose of his estate in the first instance by expressing a wish or desire as to what should be done with it. If he had so disposed of it, the expression of his wish or desire would have to be regarded as an expression of his intention, to be carried out with the same effect as if his words had been mandatory. The estate was first given to the wife absolutely, and only after it was so given to her was there an expression of desire that she should do certain things with it. Having given his estate absolutely to her, his expressed desire no longer bound it as a mandatory direction to be carried out by her. His' expressed desire reached only her, to be followed or not, as she might determine.”

In the case of Gilliam v. Mahon et al., Tex.Com.App., 231 S.W. 712, the will involved contained this language: “I give and bequeath to my wife Alice A. Mahon, all my real and personal property * * * also my granddaughter Mittie Mahon to have equal share with all my heirs when the property is divided.” The rule therein announced by which to construe the language of such a will-is as follows: “ ‘Where the first clause of a will in clear, unambiguous language gives and bequeathes to one devisee all the property real and personal of which the testator dies possessed, such estate so given cannot be disturbed, cut down, or diminished by a subsequent clause, which is uncertain and ambiguous in its meaning.’ ”

In 28 R.C.L. 241, para. 206, it is said: “But an express bequest or devise cannot be cut down by a subsequent clause of doubtful meaning, and an estate granted in plain' and unequivocal language in one clause of á will therefore cannot be lessened or cut down by a subsequent clause, unless the language therein is as clear, plain and unequivocal as that in the first grant.”

In Brannon et al. v. Morgan, Tex.Civ.App., 106 S.W.2d 841, 843, writ dismissed, this court had under consideration a will, one paragraph of which read in part as follows: “I Bell Morgan am willing Cliff Morgan my husband all of my Earthley Poessiones.” Another paragraph of the same will read, in part: “I Bell Morgan request at the death of Cliff Morgan My Husband for Blanche Morgan Brannon and Nell Morgan Cooper to divide the Estate Equley Between them selves.” In construing this will this court held that the first paragraph quoted operated to devise a fee-simple title to the husband and that the precatory clause following such paragraph wherein the “request” was made that her two daughters at his death should divide the estate between themselves was “not sufficient to limit the fee simple estate vested by the first clause in C. C. Morgan”, citing article 1291 Revised Civil Statutes of 1925.

In Weller et al. v. Weller et al., 22 Tex. Civ.App. 247, 54 S.W. 652, 653, the testator devised the residue of his estate to his wife, “Emma Catherine Weller, and her heirs, forever; .to have and to hold in her own use and benefit until my heirs become of age, and for her to divide equally the amount due to each that she, in her judgment, shall be entitled to * In that case it was held that the will vested a fee-simple estate in the testator’s wife, and that the clause as to the division of the property was merely precatory and did not create a trust. It was further held that the clause of the will in controversy was merely a request of the testator “compliance with which was left to the discretion of Mrs. Weller”.

On the issue of the creation of a trust in favor of the church, in Thompson on Construction of Wills, page 706, para. 559, we find a rule applicable which we think excludes the theory of a trust when applied to the facts of this case. Such rule is as follows: “Precatory words in a will, addressed by a testator to a legatee whom he has the power to command, create no trust in favor of the parties recommended, unless, (1) the intention of the testator to make the desire, request, recommendation, or confidence imperative upon the legatee, so that he shall have no option to comply or to refuse to comply with. it, clearly appears from the whole will and the relation and circumstances of the testator when it was made, (2) unless the subject-matter of the wish or recommendation is certain, and (3) unless the beneficiaries are clearly designated.” Under this rule we think the contention that a trust arose in favor of the church is fallacious for the reason that the desire and request ■ of the testatrix was not imperative upon the devisee nor did it deprive him of a discretion or option in the matter, and for the further reason that the recommendation is uncertain.

In this connection we think the last sentence in the fifth paragraph is of great importance in construing the will. In this sentence the testatrix expresses a desire and request that her husband shall not “during his life or at his death, give or. bequeath any part of the property received under this will to anyone other than to the M. E. Church of Spickard”. In making this request does she not recognize that her husband had the authority under the will to “give or bequeath” the property to someone other than such church? Can there be any conclusion drawn other than that she understood that he was authorized to disobey her wishes in this respect, but that she was urging him not to do so? If such was her understanding, such was her intention and her intent should be given a controlling effect in the construction of the will. If .the husband had the authority to “give or bequeath” the property to someone other than the church he necessarily held the fee-simple title to the property regardless of the' fact that he obeyed her wishes in his testamentary disposition of the property.

Another very cogent reason why we think the devise in paragraph four was intended for more than a life1 estate is the fact that in giving her husband a life estate in the Missouri lands in paragraph three, she demonstrated that she knew what constituted a life estate and that she knew how to devise one. If the testatrix had intended in paragraph four to devise only a life estate with power of sale she no doubt would have said so in as clear and convincing language as she used in paragraph three. From all the facts and circumstances of this case, and in view of the above authorities, it is our opinion that a feé-simple title to the lands in controversy passed under the will of Mary E. Ashbrook to her husband, D. F. Ashbrook, without mandatory limitations or restrictions.

Having thus construed the will it becomes necessary to determine the respective rights of the parties in regard to their claims. Due to our holding that the fee-simple title to the two tracts of land passed to D. F. Ashbrook under his wife’s will we think it apparent that the debt and liens of the Alliance Life Insurance Company are superior to the claim and statutory lien of W. E. Neal. As above stated, on November” 1, 1925, D. F. Ashbrook, while he own-' ed the fee-simple title to the land, executed the two $2,400 notes and liens upon the property which indebtedness and security passed in due course to the Alliance Life Insurance Company. Before such indebtedness was acquired by the Alliance Life Insurance Company, on November 1, 1932, Lizzie B. Ashbrook, who then had a deed to the property, renewed and extended both the indebtedness and the security by executing the two $1,800 notes and the liens sued upon. D. F. Ashbrook assumed the indebtedness to Neal on November 10, 1925, which was after the creation of the indebtedness and liens now held in due course by the Alliance Life Insurance Company. Therefore, in point of time the indebtedness of the Alliance Life Insurance Company and its liens arose before the indebtedness of Neal. The latter indebtedness did not become secured by any lien upon the property herein involved at least until the death of D. F. Ashbrook in 1929, and then only by force of the statute. However, Neal’s claim and lien should have preference over that of Peter Austin since the latter’s indebtedness did not arise until August 17, 1933, when Lizzie B. Ashbrook executed the note in the sum of $12,000, secured by a deed of trust of the same date in favor of Peter Austin. Lizzie B. Ashbrook acquired the land from the church by deed of the date of November 9, 1929, which was within a year from both the death of D. F. Ashbrook and the order probating the will. Under our construction of the will of Mary E. Ashbrook the church received under the will of D. F. Ashbrook the land subject to the indebtedness against the estate of D. F. Ash-brook, and Lizzie B. Ashbrook took only such title as the church possessed. In other words, on November 9, 1929, the date of the deed from the church to her, she took the property subject to the payment of Neal’s claim out of the assets of the estate of D..F. Ashbrook, deceased. Roberts v. Carlisle et al., Tex.Civ.App., 4 S.W.2d 144, writ dismissed. Having only such an interest in the land we hold that the court’s judgment decreeing that Lizzie B. Ashbrook held title to the land as against the claim of Neal and the administrator under the three and five year statutes of limitation was erroneous.

Although the court did not find in his judgment that the claim of Neal was barred by the four year statute of limitations the defendants in error have raised the issue in this court, alleging such defense in support of the trial court’s judgment. Neal’s cause of action did not accrue until November 1, 1930, and his claim was filed with the administrator on October 3, 1934, and approved by such administrator and by the judgment of the probate court on October 17, 1934, at which time it was not barred by the four year statute of limitations. The approval of the claim by the probate court was a final judgment from which there was no appeal and the adverse parties are in no position at this time in this suit to raise the issue of limitations as against Neal’s claim. Gregory et al. v. Ward, 118 Tex. 526, 18 S.W.2d 1049. The trial court did find that the right of Neal and the administrator to set aside the deed from the church to Lizzie B. Ashbrook was barred by the four year statute of limitations, but the issue thus presented becomes immaterial since we recognize the validity of such deed and hold that Lizzie B. Ashbrook took title under such deed to whatever interest the church possessed.

Under the facts of this case we think the trial court exceeded its authority in directing the issuance of the orders of sale in the foreclosure of the Alliance Life Insurance Company’s liens. The court had the authority to ascertain the amount due and to foreclose the ' deed of trust liens, but instead of directing the issuance of the orders of sale such court should have certified the judgment to the probate court for observance and execution. Gregory et al. v. Ward, supra; Second Nat. Bank et al. v. Ford, 132 Tex. 448, 123 S.W.2d 867, and authorities cited.

It is our opinion that the judgment of the trial court in favor of the Alliance Life Insurance Company for its debt against Lizzie B. Ashbrook and for foreclosure of its liens against her and all of the other parties in the suit should be affirmed; that the portion of the judgment directing the issuance of the orders of sale be reversed and the court directed to certify such judgment to the probate court of Deaf Smith County for observation and execution; that the portion of the judgment which decreed that Neal and Ricketts take nothing by their cross-action be reversed and here rendered in their favor as against Lizzie B. Ashbrook, Peter Austin, the Monarch Loan Company and Dewey O. Hedrick, subjecting said lands to the payment of Neal’s indebtedness in the due course of administration of the estate of D. F. Ashbrook, deceased, subject first, however, to the prior rights of the Alliance Life Insurance Company for satisfaction of its claim out of said land; that this judgment be certified by the district court to the probate court for observhnce and execution; and such being our opinion, it is so ordered.

Affirmed in part and reversed and rendered in part.

On Motion for Rehearing.

All the parties have filed motions for rehearing. There is one matter urged by the defendants in error which we did not discuss in our original opinion, however, the effect of our holding was to decide the question adversely to the contention of the defendants in error. Upon more mature consideration of the question we have reached the conclusion we were partially in error in this respect. The matter to which we refer is the right of subrogation urged in behalf of Lizzie B. Ashbrook in regard to certain payments made by her upon the indebtedness against the land herein involved. This indebtedness was originally represented by the two $2,400 notes above mentioned which bore interest at the rate of 6% per annum. These notes, as above stated, were renewed by Mrs. Ashbrook on November 1, 1932, by her executing the two $1,800 notes and the liens herein sued upon.

The pleadings of Lizzie B. Ash-brook allege that she paid $600 on each of the $2,400 notes reducing the principal of such notes to $1,800 each; that after the remaining indebtedness was renewed and extended she made additional payments of principal and interest upon the renewed indebtedness; and that she was entitled to subrogation by reason of the payments, so made. The testimony reveals that she paid $500 principal on each of the $2,400 notes on March 24, 1931, and $100 principal on each note on November 1, 1932, aggregating a total of $1,200 paid on the indebtedness upon these two occasions. These payments, according to the testimony of Mrs. Lizzie B. Ashbrook, were made to the Peoria Life Insurance Company, then owner of the notes, and her evidence further shows that such payments were made in order to avoid a threatened foreclosure upon the land. The evidence further shows that on December 30, 1933, Mrs. Ashbrook paid $200 principal on each of the $1,800 renewal notes, reducing the principal of these notes to $1,600 each, and making a total of $1,600 paid by her upon the principal of the indebtedness. Mrs. Ashbrook testified that she paid some interest oh the indebtedness and paid some taxes upon the property, but the amounts so paid are not shown by her testimony or by any other testimony, nor were the amounts paid alleged in the pleadings, and, since the burden is upon Mrs. Ashbrook to both plead and prove her right of subrogation, the purported amounts paid for interest and taxes must fall for lack of sufficient pleadings and support in the evidence. 39 Tex. Jur. 803, 804, paras. 43, 44.

The record shows that Lizzie B. Ashbrook did not assume any indebtedness against the property she purchased from the Methodist Episcopal Church of Spic-kardsville, Missouri. The deed from the church to her, in which the property in issue was included, does not mention indebtedness of any sort but merely recites that for a consideration of $3,000 paid by the grantee the grantor granted, sold and conveyed to “Lizzie Ashbrook, all of the interest of said Church in and to the estate of D. F. Ashbrook, deceased, and in and to the estate of Mary E. Ashbrook, deceased, and specially do we hereby convey all interest of said Church in and to the M. H. Cahill Pre-emption, Abstract No. 535; the W. A. Hunt Pre-emption, Abstract No. 537; * * * .” After this recitation there followed the description of numerous other tracts of land not the subject of this controversy. Under such a deed Mrs. Ash-brook did not become primarily liable on the indebtedness then outstanding against the property. After she purchased this property and before she became primarily liable for the indebtedness in question she paid $1,200 principal to the Peoria Life Insurance Company, and, according to the uncontroverted testimony; such payment was made in order to prevent a foreclosure. After the execution of the renewal notes she further paid the sum of $400 on the indebtedness which was then her own and for which she was primarily liable.

We think the rule is well settled in this State that one is not entitled to subrogation who pays an obligation for which he is primarily liable. Therefore, as far as the $400 payment is concerned Mrs. Ashbrook is not entitled to claim the benefits of an equitable subrogation. Kerens Nat. Bank et al. v. Stockton et al., 127 Tex. 326, 94 S.W.2d 161; Lusk v. Parmer et al., Tex.Civ.App,, 114 S.W.2d 677, writ dismissed; McDowell v. M. T. Jones Lumber Co. et al., 42 Tex.Civ.App. 260, 93 S.W. 476. However, in regard to the $1,200 paid by Mrs. Ashbrook upon the indebtedness before she became primarily liable thereon, a different question is presented. Mrs. Ashbrook, having paid the $1,200 to prevent a threatened foreclosure, could not be classed as a mere volunteer who paid the debt without legal or moral obligation to do so. In 25 R.C.L. 1353, para. 37, we find the following general rule expressed: “And there are numerous decisions to the effect that where a purchaser buys land and takes a deed thereto, and subsequently pays a prior lien on the property which he is not primarily bound to pay, but which if not paid might cause him to lose his interest therein, he is subrogat-ed to the rights and remedies of such prior lien, as against a lien which is superior to his title. * * * The purchaser is not technically a surety for the vendor, but in virtue of his ownership of lands encumbered by the judgment or mortgage against the grantor under whom he claims title, who conveyed the same for full value with covenants of warranty, he occupies a position very similar to that of sureties, and is entitled to the same equities, so far as they can be administered consistently with the rights of others.”

It will thus be seen that upon Mrs. Ash-brook’s payment of the $1,200, under the circumstances which existed, equity will place her in the position of a surety for the vendor and afford her the same rights to which a surety would • have been entitled under similar conditions. We think the rule in regard to the rights of a surety paying the debt of the principal has been definitely settled in Texas by the pronouncement of the Supreme Court in the case of Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 681, 77 A.L.R. 663. In a very learned opinion in that case written by Judge Critz, the Supreme Court reviews the decisions upon the subject, and, apparently in order to clarify the conflict theretofore existing in the authorities, announced this rule: “From what we have said it follows that we now announce the rule in Texas to be that, where the surety pays the debt of the principal, he has his election to either pursue his legal remedies and bring an action on an assumpsit, or the obligation implied by law in his favor for reimbursement by the principal; or he can prosecute an action on the very debt itself, and in either event he stands in the shoes of the original creditor as to any securities and rights of priority. What we have already said applies with equal force to all debts whether represented by a negotiable instrument or not.”

In view of the above rule, under the facts of this case, it is our opinion that for the payment of the $1,200 on the above indebtedness Mrs. Lizzie B. Ash-brook should be subrogated to the rights and remedies held by the mortgagee as against Neal’s claim, however, her rights in this matter are inferior to the rights of the Alliance Life Insurance Company, and we do not wish to be misunderstood in this regard. We are not holding that her rights as to subrogation are paramount to, or even on a par with, the rights of the' Alliance Life Insurance Company. Such a holding would be prohibited under the rule that a person is not entitled to be subrogated to a creditor’s securities until the claim of the creditor against the debtor has been paid in full. 25 R.C.L. 1318, para. 6. However, in our original opinion and judgment in this case we held that the claim of the Alliance Life Insurance Company, as against all the parties, should be first satisfied, and to such holding we still adhere. Under such holding the Alliance Life Insurance Company will have been fully satisfied before the effect of the subrogation accrues to Mrs. Ashbrook, and therefore such creditor’s rights will not be prejudiced in any manner by our holding in this respect. Cason et al. v. Westfall et al., 83 Tex. 26, 18 S.W. 668; Foos Gas Engine Co. v. Fairview Land & Cattle Co. et al., Tex.Civ.App., 185 S.W. 382, writ refused. After such company’s claim is thus satisfied we hold that next in order for satisfaction, and prior to the claim of Neal, is the equitable claim of Lizzie B. Ashbrook for the $1,200 paid by her upon the indebtedness and for interest at 6% per annum on $1,000 of such amount from March 24, 1931, until paid, and interest at 6% per annum on $200 of such amount from November 1, 1932 until paid, the dates mentioned being that of the respective payments made on the indebtedness. Williams et al. v. Daniel et al., Tex.Civ.App., 30 S.W.2d 711, writ refused; Phipps v. Fuqua, Tex.Civ.App., 32 S.W.2d 660, yvrit refused. Under the facts of this case we think equity demands that Mrs. Ashbrook be reimbursed for these sums with interest as stated, and in support of our opinion in this respect we call attention to the fact that had not this money been paid by Mrs. Ashbrook the unpaid 'debt thereby represented would certainly have had precedence over Neal’s claim. We therefore think that she should be placed in the position of the mortgagee for reimbursement of such amount out of the sale of the property in the probate court before any of the proceeds of such sale may be applied to the payment of Neal’s claim. . Sullivan et ux. v. Doyle, 108 Tex. 368, 194 S.W. 136; Harrison v. First Nat. Bank of Lewisville et al., Tex.Com. App., 238 S.W. 209; Davis v. John V. Farwell Co., Tex.Civ.App., 49 S.W. 656.

The motion of the plaintiffs in error is overruled. The motions of the defendants in error are granted in part and our holding in our original opinion is hereby modified to the extent that after the satisfaction of the Alliance Life Insurance Company’s claim out of the sale of the land herein in the probate court, if the same is satisfied, that the $1,200 claim of Mrs. Lizzie B. Ashbrook, with interest as above stated, be next satisfied out of any funds remaining after the payment of the claim of the Alliance Life Insurance Company, and that after the satisfaction of the claims of both such company and Mrs. Ashbrook any amount remaining shall be subjected io the payment of Neal’s claim in the due course of the administration of the estate of D. F. Ashbrook, deceased. It is further ordered that our holding in this respect, in addition to our holding in the original opinion, be certified by the district court to the probate court for observance and execution.


author: BROWN, Justice.

text:
    CITY OF WICHITA FALLS v. REAL ESTATE TRUST.
    No. 14001.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 22, 1939.
    Rehearing Denied Jan. 26, 1940.
    T. A. Hicks and Thelbert Martin, both of Wichita Falls, for appellant.
    J. S. Lieb and C. P. Engelking, both of Electra, for appellee.
   BROWN, Justice.

The City of Wichita Palls, Texas, is what is now commonly known as a Home Rule City, by reason of its large population, the provisions of the Constitution of Texas, Art. XI, section 5, Vernon’s Ann.St., and that of the State Statutes enacted in aid of the said constitutional provisions, such statutes being found in Chapter 13 of the Revised Civil Statutes of Texas, beginning with Article 1175 and continuing through and including Article 1180.

During the year 1934 it appears that the Highway Department of the State of Texas desired to order a location made on State Highway No. 5, within the city limits of said City, from Sixth Street and Scott Avenue, over Scott Avenue, as a route on to the northwest city limits and what is known as Iowa Park Highway, provided the City of Wichita Falls, acting through its Board of Aldermen, would agree to and secure a minimum of one hundred foot right-of-way, clear of all obstructions, excepting standing timber, and furnish, without cost to the State, clear title to the necessary right-of-way, including all standing timber, through each and every tract crossed by said Highway, and do the required fencing on location approved by the State Highway Engineer before such location was made, and this proposed project being laid before the Board of Aldermen of said City, there was officially passed a resolution reciting the above facts and providing as follows: “It is therefore ordered that the City of Wichita Falls, acting herein by and through its Board of Aldermen, agrees and obligates itself to secure a minimum of one hundred foot right-of-way, and do the required fencing, on Highway No. 5 from Sixth Street and Scott Avenue over Scott Avenue Route to the Northwest city limits and Iowa Park Highway and to clear such right-of-way of all obstructions except standing timber, and furnish a clear title to each parcel secured, including all standing timber, without cost to the State, through each and every tract crossed by this Highway, on location to be approved by the State Highway Engineer.” The City did what it thus obligated itself to do, and the highway thus to be changed, or improved, being a part of certain United States, Highways, the Highway Department of the State of Texas sought aid in the construction of the proposed improvemejats from the proper authorities of our Federal Government, so that same would be and became one of the United States Public Works projects. The Federal aid was given, the City of Wichita Falls entered into an agreement with the Texas Highway Department to the effect that, when such project was completed, it would provide for its proper maintenance; the following language appears in the agreement: “That the said City of Wichita Falls hereby requests the Highway Department to submit the aforementioned project with recommendation that it be approved by the Secretary of Agriculture, and agrees that if such project is approved and constructed by the Highway Department and the Secretary of Agriculture it thereafter, at its own cost and expense, will maintain the project in a manner satisfactory to them, or their authorized representatives, and will make ample provision each year for such maintenance.”

The project was approved by the Federal authorities and, with the Federal aid furnished, the Highway Department made and constructed the improved highway, which included an overpass built over the tracks of one of the railroads that traverses the said City.

The appellee brought suit against the City of Wichita Falls, alleging damages done its real property by the construction of the aforementioned overpass, in that the elevation of the public street, or highway, abutting upon its land, was raised up to the level of the house-top of the improvements built upon its land, and thus impairing its right of ingress and egress, which it had theretofore enjoyed while the property was flush with the street; alleging further that the view is thus obstructed, and plaintiff has been deprived of air and light by the raised highway and high dump, or fill, and that plaintiff has'been deprived of the right and opportunity to grow trees and shrubbery along the sidewalk in front of its house.

If we understand the plaintiff’s pleading, it first charges the City with the construction of the highway improvements, and in the alternative, that in violation of its duty to keep the streets open to traffic and at the same grade at which it had theretofore been kept, near and adjacent to plaintiff’s property, the City permitted the Texas State Highway Department and some branch of the Federal Government, or private contractors employed by the Highway Department or the Federal Government, or other parties, to so grade the street and build the dump in front of plaintiff’s property, and aided and assisted them by resolutions and ordinances, etc., while the construction was in progress; and again in the alternative, that the City knew these acts were about to be committed and his property damaged thereby, and, by the exercise of ordinary care and diligence, should have known such facts and should have prevented the doing of same and the injury done plaintiff’s property.

The defendant City addressed a general demurrer and several special exceptions to the petition, and specially pleaded the facts above stated, showing that it had no part in the making and construction of the improvements complained about by the plaintiff. Such facts are undisputed.

The cause was tried to a jury and the defendant’s request for a peremptory instruction was refused.

Two issues were submitted to the jury: (1) The value of the plaintiff’s property immediately before the overpass was built, and (2) that afterwards. The difference thus found amounts to $275, for which sum the trial court rendered judgment for plaintiff, with interest.

Defendant appealed and we shall discuss only one assignment of error, namely, that the trial court erred in denying the defendant’s request for a peremptory instruction after all of the evidence was adduced.

In Alexander et al. v. Singleton et al., Tex.Civ.App., 50 S.W.2d 893, writ refused, it is stated that, under Articles 6663, 6673, 6674c and 6674n, the Highway Commission of the State of Texas has sole power to designate the number and location of State highway routes through a City.

It is undoubtedly sound that where the Highway Department of the State of Texas constructs a State highway, or a portion thereof, and in so doing injures property, it can be made to respond in damages. Wilbarger County et al. v. Hall, Tex.Com.App., 55 S.W.2d 797.

We see no merit in appellee’s contention that the statutes referred to above are inoperative where a Home Rule City is concerned.

Appellee' contends that the Texas Legislature having granted to all incorporated cities that are operating under the Home Rule amendment to the Texas Constitution, exclusive control over all streets and highways within the corporate limits of such cities, the passage of other acts creating a State Highway system and placing the control of State Highways under the State Highway Department, without expressly repealing the original grant made to Home Rule Cities, does not repeal such original grant, by implication, and such Home Rule Cities still have exclusive control over streets and highways within the cities’ limits.

The contention is not well taken. See Iverson v. Dallas County, Tex.Civ.App., 110 S.W.2d 255; Wilbarger County v. Hall, Tex.Com.App., 55 S.W.2d 797; Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915, 918.

In the last cited case this is said: “The establishment of public highways being primarily a function of government belonging to the state, the right to establish them resides primarily in- the Legislature, and, in the absence of constitutional re-trictions, the Legislature may exercise that right direct or delegate it to a political subdivision of the state, or to such other agency or instrumentality, general or local ‘in its scope, as it may determine. The exercise of this right by a political subdivision of the state, or by local officers, is founded upon statutory authority therefor. The Legislature may exercise possession of public roads and control over them, by and through such agencies as it may designate.”

We think all of the essential facts, found in a -former case before us, viz.: City of Weatherford v. Martin, Tex.Civ.App., 120 S.W.2d 618, are evident in the instant suit.

Appellees cite City of Houston v. Anderson et ux., Tex.Civ.App., 115 S.W.2d 732, to sustain their contention that appellant city is liable in the instant suit, but such case is not applicable here. The City of Houston did the construction work out of which the suit grew.

The judgment of the trial court is reversed and judgment is rendered for appellant city.