author: WALTHALL, Justice.

text:
    LANDA v. ISERN et al.
    No. 4036.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Rehearing Denied March 27, 1941.
    Johnson & Rogers, of San Antonio, for appellant.
    Carter & Stiernberg, of Harlingen, for appellees.
   WALTHALL, Justice.

This appeal is prosecuted from an order of the District Court of Cameron County, Texas, overruling appellant’s motion for a change of venue on a plea of privilege from the District Court of Cameron County to the District Court of Bexar County, the county of appellant’s residence.

On June 15, 1938, appellees, Alfred W. Isern and Meta Isern, as plaintiffs, filed their original petition in this suit, and on January 31, 1938, filed their first amended original petition herein in lieu of their original petition, in each of which petitions ap-pellees sue appellant Harry Landa, who resides in Bexar County, Texas, E. C. Bacon, who resides in Cameron County, Texas, and Valley Citrus Groves Company of Texas, a Texas corporation, with appellee E. C. Bacon as its president.

Plaintiffs allege that on August 14, 1935, plaintiffs and defendant, Valley Citrus Groves Company of Texas, entered into a written contract whereby plaintiffs agreed to buy and defendant company agreed to sell ten acres of land described as Lot No. 6, out of the Valley Citrus Groves Company subdivision of a part of the Galveston Ranch in the La Feria Grant, Cameron County, Texas, for a total consideration of $2,500, to be paid by plaintiffs to said company as follows: $625 cash; nine month note $625; vendor’s lien notes $1,250.

That on or about January 17, 1936, plaintiffs and defendant, Valley Citrus Groves Company of Texas, entered into a written contract whereby plaintiffs agreed to buy and said company agreed to sell ten acres of land described as a part of Lot No. 13, out of the Valley Citrus Groves Company subdivision of a part of the Galveston Ranch in the La Feria Grant, Cameron County, Texas, for a consideration of $1,500, to be paid by the plaintiffs to said company as follows: $750 cash; a note due January 17, 1937, $750.

Plaintiffs allege that each of said contracts contained, among other provisions, the following: “(3) The land described herein is not bonded for irrigation purposes, but same is a part of the Galveston Ranch in the La Feria Grant, in Cameron County, Texas, and as such, is entitled to the use of waters from the Rio Grande River under the Riparian Ranch, and is entitled to use the easement and right-of-way for canal and irrigation purposes now owned by Valley Citrus Groves Company of Texas, for the purpose of carrying waters from the Rio Grande River to said Valley Citrus Groves Subdivision. Purchaser agrees to bear his pro rata part of the expense of carrying the water from the Rio Grande River to said Valley Citrus Groves Subdivision. The Company expressly reserves an easement, for the use of the owners thereof, across all lands in Valley Citrus Groves Subdivision, for the purpose of constructing and maintaining all canals and other irrigation facilities for the irrigation of said, Valley Citrus Groves Subdivision.”

In the suit plaintiffs, in a lengthy petition, state many misrepresentations made by defendants, part verbal and part in the written sales contracts, in making the sales of the land to plaintiffs. Plaintiffs allege the misrepresentations alleged took place in Cameron County, where the lands are situated, and constitute fraud committed in Cameron County. The various matters of fact alleged as constituting fraud in the land sales are too lengthy to set out here.

We are interested in this appeal only on the issue of venue.

In the suit plaintiffs seek to hold appellant Landa liable with defendant Bacon, and the defendant corporation is regarded as a “sales organization,” the instrumentality through which to convey the lands in the perpetration of the fraudulent sales, the corporation alleged to have been organized and to be owned by defendant Bacon.

Plaintiffs claim that the proper venue of this suit is in Cameron County under any one of subdivisions 4, 7, 12 and 29a of Article 1995, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 1995, subds. 4, 7, 12, 29a.

The question or issue of fraud in making the sales of the land to plaintiffs is an issue of fact to be determined in the trial of the suit on the merits, but whether the issue of fraud as alleged is sustained or not is immaterial, under subdivision 4 of the -article of the statute above referred to, to the question of venue presented here. Landa is sued jointly with Bacon, and Ba-conds a resident of Cameron County, where the suit was filed.

We have concluded that the venue of the suit is properly laid in Cameron County, and the order of the trial court overruling the plea of privilege is sustained.

The case is affirmed.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    HUNTSINGER v. GATES RUBBER CO.
    No. 5274.
    Court of Civil Appeals of Texas. Amarillo.
    March 10, 1941.
    F. A. Cooper, of Amarillo, for appellee.
   STOKES, Justice.

This case is before us upon the transcript, but no statement of facts -appears in the record. Neither the appellant nor the appellee has filed a brief, but appellee has filed a motion in which he asks that the judgment of the trial court be affirmed and that he have judgment against the sureties on the supersedeas bond. We have examined the record' and find that the cause of action is one of which the trial court had jurisdiction and no fundamental error appears. The motion of appellee will, therefore, be granted, the judgment of the court below affirmed, and judgment here rendered against the sureties on appellant’s supersedeas bond for the full amount of the judgment below. Art. 1857, R.C.S., 1925; Cockburn v. Hightower,. Chief Justice, et al., 121 Tex. 555, 52 S.W.2d 365; Beauty Service Corporation v. Davis, Tex.Civ.App., 116 S.W.2d 463.

Affirmed with judgment against sureties.


author: McDONALD, Chief Justice.

text:
    PETTIT v. CAMPBELL et al.
    No. 14179.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1941.
    Rehearing Denied April 11, 1941.

      W. E. Allen and Allen & Gambill, all of Fort Worth, and Storey, Sanders,. Sher-rill & Armstrong, of Dallas, for appellant.
    Boykin & Ray, Simon & Wynn, and H. S. Lattimore, all of Fort Worth, for ap-pellees.
   McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege.

The suit was brought in the District Court of Tarrant County by George H. Campbell, receiver of the Harry W. Elliott Interests, and by T. C. McMurray, receiver of the Twelve Way Syndicate Interests, against Charles Pettit and others. Pettit sought to remove the cause to Dallas County, the county of his residence. Plaintiffs filed controverting pleas, seeking to maintain venue in Tarrant County, under Subdivision 4 and Subdivision 7, as amended, of Article 1995, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 1995, subds. 4, 7. Plaintiffs appear to have abandoned their plea under Subdivision 4, and now rely upon Subdivision 7, which, as amended, reads as follows: “7. Fraud and defalcation. In all cases of fraud, and in all cases of ■ defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or apy of such suits may be brought where the defendant has his domicile.”

The plea of privilege was overruled, and the defendant Charles Pettit has appealed.

Plaintiffs’ petition, which is incorporated by reference in their controverting plea, in effect alleges: That Harry W. Elliott organized two oil promotions, one known as the Twelve Way Syndicate, and the other as the Harry W. Elliott Interests; that he sold shares in these enterprises to. the public; that these enterprises acquired certain oil properties; that these properties were-acquired and held in the name of Elliott, as a sort of agent or trustee for the persons to whom he had sold the shares mentioned; that Elliott, acting as such agent or trustee, made certain transfers of oil' and interests in oil to the defendant Pettit, under an agreement that Pettit would share with Elliott individually the profits to be earned by Pettit from these transactions; and that such agreements and acts of Elliott and Pettit constituted a fraud upon the holders of the beneficial interests in these promotion enterprises.

The assignments of error and propositions present questions relating to three matters. The first relates to the admissibility of certain testimony of Mr. Hal S. Lattimore, one of the attorneys for plaintiffs. The other two relate to the sufficiency of the proof to establish that any fraud was committed, or that it was committed in Tarrant County.

It appears from the record that in 1938, before the present suit was filed, Pettit was sued in the United States District Court for the Northern District of Texas upon these same transactions. That suit was dismissed by the trial court, and its action was affirmed by the U. S. Circuit Court of Appeals, for the reasons shown in its opinion. Todd v. Pettit et al., 5 Cir., 108 F.2d 139.

Upon the hearing of this plea of privilege, Hal S. Lattimore, one of the attorneys for plaintiffs, took the witness stand and, over Pettit’s objections, testified that he was present when a deposition of Pettit was taken in the above federal court case, and that he heard Pettit make his answers to the interrogatories there propounded to him. Lattimore then proceeded to testify as to what he had heard Pettit testify in the deposition hearing.

Pettit objected on the ground that the deposition taken in the case in the federal court was not admissible because it was taken in a different suit, and also on the ground that if the deposition itself was admissible in evidence, Lattimore’s testimony as to what he had heard Pettit testify would not be the best evidence of the testimony appearing in the deposition.

Plaintiffs contended that Pettit’s answers given at the deposition hearing were admissible against him in any other suit to which he might be a party, as admissions or declarations against interest, and that any person who had heard him make the answers could properly testify as to what Pettit had said.

Under such cases as Lacoste v. Chief Justice of Bexar County, 28 Tex. 420, Bilger v. Buchanan, Tex.Sup., 6 S.W. 408, Parker v. Chancellor, 78 Tex. 524, 15 S.W. 157, and National Cattle Loan Company v. Armstrong, Tex.Civ.App., 8 S.W.2d 767, writ of error refused, we would have thought that Pettit’s deposition, if properly proved, would have been admissible against him as an admission or declaration against interest. In the case of Reilly v. Buster, 52 S.W.2d 521, the Court of Civil Appeals, citing most of the above cases, held that the deposition of a party, though improperly taken, was admissible against him on the ground that it contained admissions and declarations against interest. But the Commission of Appeals, in an opinion adopted by the Supreme Court, Reilly v. Buster, 125 Tex. 323, 82 S.W.2d 931, reversed the judgment of the Court of Civil Appeals, holding that it was error to admit the deposition in evidence under the circumstances of that case.

Appellees suggest a distinction between the circumstances in Reilly v. Buster, supra, and those in the case on appeal. They suggest that in Reilly v. Buster the Supreme Court only held that it was error to admit the deposition as a deposition, as distinguished from a mere admission or declaration against interest; and that in the case on appeal Pettit’s deposition was not offered as a deposition, but only as an admission or declaration against interest. This distinction might be plausible, but for the language in the Reilly v. Buster opinion. The essence of that holding, as we interpret the opinion, is that the answers in a deposition taken by the opposite party are not in the nature of voluntary admissions, but are given under compulsion of law; and further, that since the right of a party to compel the opposite party to testify exists only by virtue of the statutes, the statutes must be complied with, and that to permit some one who was present at the deposition hearing to testify as to what the witness had said, when the deposition itself was not admissible, would be simply an attempt to circumvent the statute.

In arriving at our conclusion that Pett-it’s deposition was not admissible in evidence, at least unless it was first shown that his deposition was voluntarily taken on his part, we have not been unmindful of the following situation :

In McLean v. Hargrove, 144 S.W.2d 1021, the Texarkana Court of Civil Appeals, basing its holding squarely upon the decision in Reilly v. Buster, supra, held that a deposition of a party, improperly taken, was not admissible, even though offered as an admission and declaration against interest and not as a deposition. The only question discussed in the opinion of the Court of Civil Appeals was the admissibility of the deposition. The Supreme Court, on January 15, 1941, granted a writ of error on the assignment of error complaining of the exclusion of this testimony. After carefully considering the entire situation, we are persuaded that the holding of the Supreme Court, in Reilly v. Buster, rather than the action of the Supreme Court in granting the writ of error in the McLean v. Hargrove case, should govern us in the case on appeal.

But this brings us to another question, that of whether the testimony of Mr. Lattimore was the best evidence of the questions and answers contained in the deposition. Witnesses are generally permitted to testify in a proper case, as to what they may have heard a person testify upon another trial. But we have not been referred to any case where the contents of a written deposition, which the law contemplates be in writing and signed by the witness, have been established by parol testimony, at least until a sufficient predicate had been laid for the introduction of the secondary evidence.

Some of the rules relating to best and secondary evidence may be found in 17 Texas Jurisprudence. At page 471 it is said:

“Primary evidence, or the best evidence, has been defined to be that kind of proof which under any possible circumstances affords the greatest certainty of the fact in question, and all evidence failing short of this, in its degree, is .termed secondary. Under some circumstances the best evidence may mean that evidence which is more specific and definite as against that which is merely general and indefinite or descriptive.
“Facts must be proven by the best evidence obtainable, or, in other words, the best evidence of which the case in its nature is susceptible must be produced by the party upon whom the burden of proving the facts rests. Secondary evidence is admissible only when the best evidence cannot be produced; and where testimony shows upon its face that there is better evidence in existence, secondary evidence should be excluded.
“The rule requiring the best evidence means that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. It does not demand the greatest amount of evidence which can possibly be given of any fact, and it only excludes such evidence as itself indicates the existence of more original sources of information.”

At page 473 it is said: “As a general rule, a written instrument is the best evidence of its contents, and parol evidence is inadmissible to prove the contents unless a proper predicate is laid for the introduction of secondary evidence.”

Appellees contend that if Pettit had made the same statements to some person on the street, that person could testify as to what was said, and that for the same reason any one who heard the deposition taken could testify to what he heard Pettit say in answer to the interrogatories. The difference in the two situations is this: In the first case, the testimony of the person to whom the statements were made would be the best evidence available, and in the second, it would not be the best evidence available. No excuse was offered for not producing the deposition of Pettit, or a properly verified copy of it, if the original was not available. Under all of the authorities Pettit would have been entitled to offer any part of the deposition which appellees might not have offered. We would not consider it a wise rule which would permit one of the parties, without notice of any kind, to offer parol testimony as to - the contents of a deposition taken in another case, which might not then be -available for use by the other party in order to correct any mistakes or omissions of the witness orally testifying as to its contents. We have 'studied many decisions in addition to those cited in the briefs of the parties, and have not found one where there was even an attempt to prove the contents of a deposition in the manner employed in this case.

What we have said is sufficient to dispose of this appeal, because the proof of the alleged fraud depended upon Mr. Lat-timore’s testimony, which we hold was improperly admitted.

But even including the testimony of Mr. Lattimore, just referred to, there was not, in our opinion, sufficient proof to show that any fraud was committed.

The case alleged was that Elliott, as trustee for the interest holders, sold certain oil, and transferred certain interests, in oil, to Pettit, under an agreement that Pettit would rebate to Elliott, individually and not as trustee, a share of the profits to be earned by Pettit. In other words, that Elliott and Pettit conspired to deal with the trust property in such manner that the trustee Elliott would profit, individually from the transactions at the expense of the interest holders.

The record -indicates that Elliott held the properties in his own individual name; that he operated them in his own name, and not in the names of the enterprises, nor in his name as trustee, and that the written contracts with Pettit were signed simply in the name of Harry W. Elliott, and not as trustee, nor in the name of either of the enterprises. Pettit’s testimony, as related by Lattimore in the manner above described, was to the effect that he bpught the oil in question from Elliott, thát he took the assignment of .overriding interests from Elliott, that he dealt with Elliott, and that he agreed to return a share of the profits to Elliott in order that Elliott might obtain money to pay certain unsecured debts and obtain money for certain expenses. It is to be noted that Pettit’s testimony makes no distinction, in referring to the various phases of the transactions, between Elliott as a trustee and Elliott individually. All of his references to Elliott are simply as Elliott, without designating him as a trustee or as an individual. If the rebate was to be given to Elliott in his capacity as a trustee, and if the money rebated was used in the trust enterprises, then no fraud was committed upon the interest holders. There is not a scintilla of evidence that such was not the case. In the absence of any evidence to the contrary, a presumption of legality should attach to. the acts of the parties.

In our opinion, the proof offered in this case does not meet the requirements of the rules laid down in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

The judgment of the trial court is therefore reversed, and the case is ordered transferred to the District Court of Dallas County.


author: PRICE, Chief Justice.

text:
    GENERAL AMERICAN LIFE INS. CO. v. MARTINEZ et al.
    No. 4045.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1941.
    Rehearing Denied March 27, 1941.
    Allen May and J. R. Burcham, both of St. Louis, Mo., and Harper Macfarlane and Brooks, Napier, Brown & Matthews, all of San Antonio, for appellant.
    G. Woodson Morris, of San Antonio, for appellees.
   PRICE, Chief Justice.

This is an appeal from a judgment of one of the District Courts exercising jurisdiction in Bexar County, wherein Celedonio Martinez, as plaintiff, recovered a judgment against General American Life Insurance Company, defendant, in the sum of $1,000, together with 12 per cent, penalty thereon and $300 attorney’s fees. Defendant perfected an appeal from the judgment rendered, and the case is here for review.

The statement of the nature and result of the suit as made in appellant’s brief is, we think, correct, and we shall substantially adopt same.

This action was brought in the District Court of Bexar County, Texas, 45th Judicial District, by the appellee, Celedonio Martinez, against the appellant, General American Life Insurance Company, to recover on a certificate of insurance issued to the said Celedonio Martinez under a group policy issued by appellant to Martinez’ employer, the San Antonio Machine & Supply Company. The certificate provided for the payment of $1,000 in the event the insured, before having attained the age of sixty years, became totally and permanently disabled by bodily injury or disease. In addition to the principal amount of insurance, plaintiff sued for penalty and attorney’s fees.

The defendant filed a general demurrer and general denial to plaintiffs’ original petition and in addition a cross-action and counterclaim against plaintiffs, Celedonio Martinez and Horeta P. Martinez, the wife of the plaintiff, and G. Woodson Morris, plaintiffs’ attorney. It was alleged in the cross-action that the plaintiff Celedo'nio Martinez, in September, 1938, applied for a certificate of insurance under the group policy; that in the application for insurance and also in a statement made to Dr. E. W. Coyle, medical examiner for the insurance company, plaintiff Celedonio Martinez made material misrepresentations, stating that he had not consulted a physician within the past five years, when in truth he had been in the hospital and under the care of a physician a few months before the certificate was applied for. The company sought to cancel the certificate by virtue of the fraud practiced by plaintiff in procuring same.

The case was transferred to and tried in the 57th Judicial District Court.

The court submitted the case to the jury upon special issues, and the jury returned into court their verdict finding, (1) that Celedonio Martinez, plaintiff, was asked the question in the application for insurance: “Have you had any disease or injury or have you received any medical or surgical advice or attention within the last five years ?” (2) that he answered the question in the negative; (3) that his answer was untrue; (4) but that plaintiff did not make such false answer intentionally to induce defendant to issue the certificate of insurance. The jury further found (6) that Martinez was not asked, in the medical examiner’s report, the question, “Have you had any disease or injury or have you received any medical or surgical advice or attention within the past ten years?” (7) but that plaintiff answered the question in the negative and (8) that the answer was not untrue.

The jury further found that the plaintiff Celedonio Martinez was totally disabled; that the total disability is permanent; and that $300 would be a reasonable attorney’s fee.

The defendant filed motion for judgment based on the jury’s verdict, which was overruled. Judgment was entered in favor of plaintiff Celedonio Martinez for $1,000 principal, $120 as penalty and $300 as attorney’s fees, with interest at 6 per cent, per annum from January 11, 1940, and it was further ordered that the appellant, General American Life Insurance Company, take nothing by reason of its cross-action and counterclaim against plaintiffs, Celedonio Martinez and , Horeta P. Martinez, and it was ordered that G. Woodson Morris be dismissed as a party defendant.

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

The first two propositions briefed by defendant assert error on the-part of the trial court in refusing, at the close of all of the evidence, to instruct a verdict for defendant; (2) in refusing to grant defendant’s motion for judgment after the verdict of the jury was received.

The theory is that the undisputed evidence was that the plaintiff, in his application for insurance and in his statement to the physician of the defendant company, falsely represented that he had not been treated by a physician within five years before such . date; that such statements were false as a matter of law, were known to be false; that such statements were relied upon by defendant company, and such statements were, as a matter of law, material to the risk.

Special issues one to five submitted by the court to the jury and the answers of the jury thereto were as follows:

“(1) Do you find from .a preponderance of the evidence that the following- question was asked the plaintiff, Celedonio Martinez, in the application for insurance herein: 'Have you had any disease or injury or have you received any medical or surgical advice or attention within the last five years?’ Answer ‘Yes’ or ‘No.’”
Answer: “Yes.”
“(2) Do you find from a preponderance of the evidence that the answer of the plaintiff, Celedonio Martinez, to said question, was in the negative? Answer ‘Yes’ or ‘No.’ ”
Answer: “Yes.”
“(3) Do you find from a preponderance of the evidence that the answer of the plaintiff, Celedonio Martinez, to said question was untrue? Answer ‘Yes’ or ‘No.’”
Answer: “Yes.”
“(4) Do you find from a preponderance of the evidence that Celedonio Martinez intentionally made such false answer to induce the defendant to issue said certificate of insurance? Answer ‘Yes’ or ‘No.’”
Answer: “No.”
“(5) Do you find from a preponderance of the evidence that the answer of the plaintiff, Celedonio Martinez, to said question was material to the risk or actually contributed to the contingency or event upon which said policy of insurance became due and payable? Answer ‘Yes’ or ‘No.’ ”

Unanswered. (No. 5 was to be answered only if No. 4 was answered in the affirmative.)

The following may be taken as the undisputed facts, part of which, however, are comprehended in unassailed findings of the jury:

On the 8th day of September, 1938, plaintiff made application for the insurance in question herein; on the 17th day of September, 1938, plaintiff appeared before Dr. E. W. Coyle, - medical examiner for defendant, and purported to answer certain questions propounded by such examiner, signing such application; that upon receipt of such medical report on the 1st day of October, 1938, the defendant issued to plaintiff a certificate attesting that he came under the group policy theretofore issued to his employer, San Antonio Machinery & Supply Company; on or about the 6th day of October, 1938, plaintiff became totally disabled by bodily disease or accident, and was and will be at ajl times thereafter wholly prevented thereby from engaging in any gainful occupation.

The gravamen of defendant’s complaint is that plaintiff should not recover on account of fraudulent representations made by him to obtain the policy. These alleged fraudulent representations were made in the application by plaintiff for the policy and in his statement to the medical examiner.

The proposition that as to the issue of fraud the burden of proof is upon the defendant is elementary.

Before considering this branch of the case, let us briefly consider the law as to misrepresentations contained in an application for insurance in a policy of this character. ■

,An immaterial misrepresentation, even though fraudulently made, that is, with knowledge of its falsity and with intent to deceive, does not defeat recovery on the policy. Likewise, a material misrepresentation does not defeat recovery if innocently made; that is, without intent to deceive. American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864.

Stated in another way, lacking in one of the constituent elements of fraud as applied and defined in relation to insurance policies, a misrepresentation of fact does not defeat recovery. A misrepresentation made without intent to deceive as applied to the representations here involved, though false, is not fraudulent. American Central Life Ins. Co. v. Alexander, supra; Colorado Life Co. v. Newell, Tex.Civ.App., 78 S.W.2d 1049, writ refused; Southern Life & Health Ins. Co. v. Ramirez, Tex.Civ.App., 93 S.W.2d 234.

In the light of these legal principles, let us, then, examine the findings of the jury in this case.

Heretofore we have set forth issues one, two, three, four and five and the responses of the jury thereto. Clearly the interrogation inquired about was propounded to plaintiff in the application for the insurance herein. He signed the application with a negative answer thereto. That the response thereto was untrue, as found in special issue No. 3, is amply supported by the evidence, if not conclusively established. To sustain the judgment rendered plaintiff must rely on the finding of the jury on issue No. 4 to the effect that he did not make the answer intentionally to induce defendant to issue said certificate of insurance. The answer to No. S, inquiring as to the materiality, etc., of such representations, was not answered by reason of the finding of the jury on No. 4.

The finding on No. 4 is vigorously assailed by defendant as being without evidence to support same. It is asserted that appellee' knew that he was signing, an application for insurance and that the purpose thereof was to enable defendant to determine whether or not it would grant the insurance sought, and, if so, upon what terms. We take the position of defendant to be that such representation, under the undisputed evidence, was fraudulent, in that same was made with the intention on the part of plaintiff to deceive defendant. If this be true, it must be because it is to be conclusively inferred from the falsity of the representation, knowledge of the falsity thereof, and knowledge of the purpose for which the information was sought.

Under the evidence the questions were purported to be read to plaintiff by R. D. Olivarri, the agent of defendant. Plaintiff had an imperfect knowledge of English. Olivarri admits that he had an imperfect knowledge of Spanish; he propounded the questions in Spanish. He testified that an English translation of the question actually propounded in Spanish was as follows : “In the past five years have you needed a doctor for accident or sickness?”

The question really was: “Have you had any disease or injury, or have you received any medical or surgical advice or attention within the last five years ?”

Comparison of the question as it was in the application and as it was said to be actually propounded to plaintiff reveals a substantial difference between the two inquiries. Plaintiff signed this application written- in a language foreign to him, and of which he had a most imperfect understanding, the evidence seems to indicate. He testified on the trial through an interpreter. There is .ground, we think, from the evidence for a reasonable inference that the questions propounded by the agent of defendant to plaintiff /were not understood by him. It appears from the testimony of the witness Olivarri that the entire application was not translated to plaintiff — in fact, the witness expressed doubt as to his ability to translate the entire application.

We think the evidence is susceptible to the reasonable inference that plaintiff could not read English; further, that he did not understand the questions propounded to him when he made the recorded replies thereto; that the recited purposé and agreement contained in the application were neither read nor explained to him.

In our opinion this evidence supports the finding that the representation made was without intent to deceive. A failure to understand and comprehend the representations made, under the evidence in this case, would, in our opinion, support the finding that same were made without intent to deceive. If plaintiff failed to understand the questions propounded, under the evidence, the mistake might reasonably be ^attributed to defendant’s soliciting agent. Great Nat. Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602. We do not mean to hold that the evidence tends to raise the issue of fraud on the part of Mr. Olivarri, defendant’s agent, — in fact we believe that issue is not raised by the evidence. The issue was raised, we think, as to his imperfect translation of English into Spanish.

What has heretofore been said disposes of the assignment relating to the court’s charge conditioning the answer to special issue No. 5 on an affirmative answer to special issue No. 4. Unless the misrepresentations were made with intent to deceive, .whether same were material to the risk or the fact misrepresented contributed to the loss, were immaterial.

The defendant requested and the court refused the following special issue: “(a) Do you find from the preponderance of the evidence that the defendant, in issuing said certificate of insurance, relied upon the answer of the plaintiff, Celedonio Martinez, to said question?”

The request for an answer to the issue was conditioned on an affirmative answer to special issue No. 3 contained in the court’s submission. The fact comprehended in the issue was not submitted by the court in any other portion of the charge. Error is assigned on the refusal of the requested issue.

The following are the constituent elements of a misrepresentation avoiding liability on an insurance policy: (a) making of the representation; (b) the falsity thereof; (c) reliance thereon by the insurer; (d) the intent to- deceive on the part of the assured in making same; (e) the materiality thereof, that is, was it material to the risk or the fact represented contributed to the loss in maturing the policy. Maniatis v. Texas Mutual Life Ins. Co., Tex.Civ.App., 90 S.W.2d 936, 937. Without the concurrence of each and every one of the factual elements above set forth, a misrepresentation does not constitute a cause of action for the cancellation of the policy, and it is not a valid defense to liability.

Special issues one to five, inclusive, submitted the essential elements of fraudulent misrepresentation save as to the reliance on the misrepresentation. In a sense special issues one to three were established by the undisputed evidence. Plaintiff did sign his name to the application containing an untrue answer to the question involved.

Reliance on a misrepresentation is distinct from the materiality thereof, although the distinction may not at all times be clear. One could hardly be said to rely on an immaterial misrepresentation. If he does, he is not entitled to relief. Of course, it may be that one does .not rely on a material misrepresentation. In such a case he is not entitled to relief. An instance of this is the case where he relies wholly on his own investigation and not the representation made. We are of the opinion that under the undisputed evidence defendant here did rely on the representation contained in the application. The subsequent examination by the physician of the company would not disclose previous medical treatment. It might not disclose previous illness or disease. It is well known that it is almost the universal custom of insurance companies issuing life policies to, in substance, make the inquiry here in question. There is no notice shown of the falsity of the representation prior to the issuance of the policy. Defendant’s position at the trial below and here is tentatively at least that reliance was not a question for the jury, in that the testimony was undisputed relative thereto. We hold it was not error to refuse the issue because the affirmative thereof was established by the undisputed evidence.

However, if we should be mistaken in . this, in our opinion, the findings of the jury on the issues submitted rendered a finding thereon immaterial.

As ground for reversal it is urged that counsel for plaintiff, in the closing argument, sought to obtain a favorable verdict by an appeal to prejudice. ■ The basis for the assignment, as reflected by the bill of exception, is that counsel for the plaintiff, in the closing argument, used this language : “This great Insurance Company with all the power at its command.” By the context it seems it was argued that if defendant in its investigation of the case had.found anything against the plaintiff, it would have brought it out in the course of the trial. When the statement referring to defendant as “This great Insurance Company” was made, counsel for the defendant objected to the statement on the ground that there was no evidence to sustain same. The court then admonished the jury as follows: “Gentlemen, you will only consider the testimony in this case, and that alone.” Counsel for 'plaintiff then repeated in substance the statement, omitting the word “great.” Objection was renewed. No ruling by the court appears. Defendant’s proposition is that such argument was highly prejudicial to defendant, in that it called attention to the difference in financial condition between plaintiff and defendant, and sought to influence the jury to return a verdict on prejudice. The argument complained of does not directly call to the attention of the jury the difference between the financial condition of the plaintiff and defendant. In our opinion, it is not reasonably susceptible of the construction that the defendant was rich and powerful and the plaintiff poor. In effect it was simply that defendant had the means to make an investigation of the case, and if it, in the course of the investigation, had found anything against the plaintiff it would have brought it out on the trial.

In support of this assignment defendant cites Texas Company v. Gibson, 131 Tex. 598, 116 S.W.2d 686; Vaughan v. Kishineff, Tex.Civ.App., 63 S.W.2d 1081; and Gulf, C. & S. F. Ry. Co. v. Carson, Tex.Civ.App., 63 S.W.2d 1096.

It would unduly lengthen this opinion to distinguish each of those .cases from the case here. Suffice it to say in each of the cited cases the appeal was direct and persistent, the purpose obvious. Here, it is only by a strained inference that there was a contrast between the financial condition of the parties. The assignment does not present reversible error.

It is ordered that the case be in all things affirmed.


text:
    SCOTT et al. v. MOLTER.
    No. 4046.
    Court of Civil Appeals of Texas. El Paso.
    March 6, 1941.

      Jack .Pope and W. E. Pope, both of Corpus Christi, for appellants.
    Sidney' P. Chandler, of Corpus Christi, for appellee.
   PRICE, Chief Justice.

Mary Molter, as plaintiff, instituted this suit in the District Court of Nueces County, 28th Judicial District, against W. L. Scott, defendant, seeking to recover against said Scott actual and exemplary damages for an alleged wrongful sequestration. The other defendants were, respectively, sureties on the replevin bond in the sequestration proceeding and a supersedeas bond given by said defendant Scott in the appeal of the case wherein the sequestration was issued. Trial was before the court with a jury, submission on special issues. Judgment was in favor of the plaintiff against Scott and the other defendants in the sum of $469'.33, and against Scott alone in the additional sum of $600, the same representing exemplary damages assessed against him by the jury. From this judgment appeal has been perfected by the defendants.

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

The alleged wrongful sequestration issued out of the District Court of Nueces County, 117th Judicial District. From the judgment entered in that cause defendant here, W. L. Scott, appealed to the San Antonio Court of Civil Appeals. The decision and opinion of that court appears under the style of Scott v. Molter, 119 S.W.2d 603.

To a proper understanding of the issues of this appeal it will be necessary to rather fully state the nature and result of that case. In doing so we shall largely adopt the language of that opinion without, however, indicating whether same is a literal quotation therefrom or merely an attempt to summarize.

In that case appellant Scott, designated as defendant here, appealed from a judgment founded on a directed verdict against him. His asserted causes of action were trespass to try title and to declare a forfeiture of a contract to buy and sell certain lots and parcels of land situated in Tierra Alta Addition to the City of Corpus Christi, in Nueces County. Involved in the trespass to try title action was a small portion of Lot No. 16, Block 1. Defendants thereto were Mary Molter, plaintiff here, and Mr. and Mrs. C. W. Skipworth. Mary Molter answered by general denial and not guilty. Mr. and Mrs. Skipworth disclaimed as to the land involved and filed a cross-action against Mary Molter upon a contract of sale of Lots 14 and IS, Block 1, in the same addition, for a consideration of $1,000, $50 in cash, and $10 per month on the 1st day of each month beginning September 1, 1933. Default was alleged on the part of Mary Molter. Mary Molter answered and, among other things, pleaded waiver of default and failure to give notice of forfeiture. During the pendency of the suit the Skipworths conveyed to Scott all their right and title to Lots 14 and 15. Scott thereupon amended his pleading and asserted the forfeiture of the' contract of purchase held as aforesaid by Mary Molter. On the 27th day of May, 1937, in that cause Scott filed an affidavit for sequestration and bond therefor, and the same duly issued, and thereafter,, Mary Molter, failing to replevy, in due time replevied the property.

On the trial of the above cause the.court instructed the jury to return a verdict in favor of Mary Molter on each of the above-outlined causes of action asserted against her. On appeal the judgment as to Lots 14 and 15 was affirmed; on the cause of action asserted as to Lot 16 the judgment was by that court reversed and remanded. The decision as to Lots 14 and 15 became final.

In perfection of his appeal from the judgment in the case Scott filed a supersedeas bond.

Plaintiff in the petition here sets up the proceeding in that case and the result there, and sought actual and exemplary damages for the issuance and execution of the writ against Scott and recovered on the respective bonds against the other defendants for the actual damages.

In plaintiff's petition there is set up at great length a series of acts alleged to have been committed by defendant toward plaintiff, most of which are in no way directly connected with the issuance and execution of the writ of sequestration, save, possibly, that as evidence some of them might have bearing on the issue of exemplary damages.

Defendants assailed this petition by numerous special exceptions, all of which were overruled by the court.

In defendants’ third amended original answer defendant Scott set up numerous wrongful acts alleged to have been committed by plaintiff toward him. This conduct of plaintiff toward him bore, so far as we can see, no relation to the issuance of the writ of sequestration. It was a retort to the collateral matters of wrongful conduct urged by plaintiff against him. If the allegations had any bearing on the issues involved in this case, they were on the issue of exemplary damages alone. The facts stated were .evidentiary in character, and all that were admissible in evidence could have been proved under a general denial.

Defendant further pleaded improvements made in good faith upon the land in controversy, that is, Lots 14 and 15.

Plaintiff, by way of supplemental petition, assailed this answer.

Defendants finally filed a third amended original answer, and the court sustained plaintiff’s exceptions Nos. 2 to 21, inclusive, and the sustaining of these exceptions practically confined defendants to a general denial.

The case was submitted on three special issues, as follows:

“Special Issue No. 1: What do you find, from a preponderance of the evidence, was the reasonable value of the rents and revenues per month of the premises described as Lots No. 14 and 15, Block 1, Tierra Alta Addition of the City of Corpus Christi in Nueces County, Texas, during the period of time from June 13, 1937 to June 1, 1939? You will answer by stating the amount, if any, in dollars and cents per month.”

The aggregate of the amounts found by the jury in response to this issue was $469.33.

“Special Issue No. 2: Do you find, from a preponderance of the evidence, that the defendant, W. L. Scott, acted wilfully or maliciously in causing the writ of sequestration to be issued out of the 117th District Court on the 28th day of May, 1937, in the cause wherein W. L. Scott was plaintiff and Mary Molter was defendant ? Answer ‘Yes’ or‘No.’ Answer: Yes.
“Special Issue No. 3: What amount of money, if any, do you find, from a preponderance of the evidence, that the plaintiff, Mary Molter, should recover as exemplary damages from the defendant, W. L. Scott? Answer in dollars and cents, if any. Answer: $600.00.”

Defendant in his brief advances thirteen propositions seeking a reversal of the judgment. In substance it is urged that the judgment in the case of Scott v. Molter, supra, was not decisive as to whether the issuance of the sequestration was right or wrong.

The sequestration was issued out of that case and the affidavit therefor, in substance, that defendant Scott was the owner of the property sued for and entitled to the possession thereof. It was adjudicated by that case that he was not the owner of the property and not entitled to the possession thereof. It was further decreed that the property be restored to Mary Molter.

The proposition seems to us to involve the rather paradoxical contention that plaintiff should have paid to defendant the purchase price of the property which defendant contended she did not own because she had forfeited her interest therein. The assignment is without merit and overruled.

The fact that defendant had title or right of possession to the property was one of the constituent facts to entitle him to sequester the property. That he was without this right was authoritatively established by the judgment of a court of competent jurisdiction. This established right to actual damages. Such damages were awarded by this judgment. There is no complaint as to the amount thereof, no attack is made on the form of the issue submitting to the jury their amount. The judgment is without error in this respect.

'[3] The sole issue in this appeal is as to the award of exemplary damages. That a writ of sequestration was wrongfully sued out does not necessarily establish that same was maliciously sued out.

To warrant the recovery of exemplary damages for wrongful sequestration the act must be malicious. Mathes v. Williams, Tex.Civ.App., 134 S.W.2d 853; De George v. Rodgers-De Long Hotel Co., Tex. Civ.App., 126 S.W.2d 79.

Numerous errors were assigned as to the court’s ruling on the admission and exclusion of evidence relative to this issue and the refusal of defendant’s defensive issue relative thereto.

What we have heretofore said disposes of the issue raised on the rulings on the pleadings. However, we think defendant has the right to properly plead facts, as distinguished from evidence, going to the mitigation of damages as showing a lack of malice. It is clear, we thjnk, that there should not be an allowance for improvements. Plaintiff purchased this property pendente lite — a law suit was purchased. Possession of the property was obtained by a writ of sequestration and re-plevin bond. Under such circumstances a claim for improvements cannot be successfully maintained.

We think there was error, however, in striking out the plea urging the payment of taxes by the defendant on this property. Defendant, in the payment of such taxes, was not a mere volunteer. It is true that in the other suit plaintiff established that the defendant here had no right to the possession of the property. But it was established there, and appears here, that a substantial portion of the purchase price was owing. In such a case defendant paid the taxes, not as a mere volunteer, but his act in so doing was to preserve his interest in the property.

In regard to the refusal of special issues, the transcript does not disclose any action of the court thereon. In no way does it appear that same were submitted to the court or to opposing counsel. Furthermore, the purported request was en bloc; part, if not all, of the requested issues should have been refused. No error is here disclosed.

Complaint is made of the admission of evidence of the annoyance and vexation caused by the conduct of the officer executing the writ toward plaintiff’s minor daughter — or it might better be put, perhaps, on account of the effect the execution of the writ had upon plaintiff’s minor daughter. Plaintiff and her minor daughter were removed from the premises together. Of course recovery could not be had for the mental distress of plaintiff’s daughter. But no such issue of damages was submitted to the jury. The only issue submitted was as to actual loss of the rental value of the property. If it was error to admit the testimony, it in no way harmed the defendant.

Evidence was tendered and rejected that defendant paid the taxes on the property after suing out of the writ of sequestration. It is contended that this should have been received on the issue of ■malice. The exclusion of this evidence, we think, was erroneous on two grounds: (1) it had a tendency to negative malice, or at least might have tended to mitigate the exemplary damages; (2) if defendant actually paid the taxes, as we have said, he was entitled in some way to be compensated therefor. When exemplary damages are sought the evidence takes a wide range.

The testimony as to defendant having made improvements on the property of the claimed value of $1,100 we think likewise was admissible on the issue of malice, or, in any event, in mitigation of exemplary damages, were malice shown. It might be reasonably inferred that defendant believed that he was entitled to the property and possession thereof, else he would not have expended this sum thereon. If it enhanced the value of the property plaintiff would have reaped the advantage thereof. It was error to reject such testimony.

Defendant, on cross-examination of plaintiff, sought to show the state of the payments on the purchase contract between Skipworth and plaintiff prior to the suing out of the writ of sequestration and subsequent 'thereto. It appears the witness did testify in the presence of the jury that she had made no payments since May 29, 1937. She testified rather fully out of the presence of the jury as to the payments made prior thereto and tenders made to Mrs. Skipworth before defendant by his pleading in the former< case claimed the property. The statement under the assignment fails to show just what testimony was rejected. A reference to the statement of facts on the pages indicated likewise fails to show it. We think error is not shown by the assignment. However, the nonperformance of this contract was the sole basis for the writ of sequestration, and though it was held to be an inadequate one, inquiry relative thereto was certainly competent. Without some explanation for the suing out of the writ, same would have appeared a wanton and senseless act.

Plaintiff testified, over the objection of defendant, that defendant had filed several complaints against her and caused her arrest thereunder. The objection urged was that the complaints were the best evidence of their contents. If this testimony were admissible for any purpose, the statement of the witness in a general sort of way described the contents of the complaint. They seem to have been available, and the matter of their production was doubtless overlooked. If on another trial this evidence is tendered and deemed admissible we think the complaints should be produced.

We believe that no error is reflected by the court’s overruling the defendant’s objection to testimony that defendant in 1932 took away from the property the plaintiff’s 'gas and water meters. This mqtter was rather remote, but, coupled with other testimony, might have tended to show that defendant, by calculated and persistent course of conduct, was seeking to drive plaintiff away from this property and acquire it for himself.

Judging from the testimony of plaintiff, peace and concord did not prevail between plaintiff and defendant. This same lack of harmony is likewise shown in the stricken portions of defendant’s plea. However, testimony as to these matters was only relevant for the bearing it might have had as to defendant’s purpose and intent in suing out the sequestration. It must be borne in mind on another trial that defendant is not liable in damages for this alleged collateral wrongdoing. The only legitimate' bearing it has is on the motives and purpose of defendant in suing out the writ of sequestration. This is so as to the alleged provocative conduct of the plaintiff toward defendant. This conduct, before being admissible, must have some relationship to the property .sequestered.

We believe the exclusion of the testimony as to defendant’s payment of the taxes, and the exclusion of the testimony as to improvements placed upon the property by the defendant pending the determination of the former suit, present reversible errors.

The case is reversed and remanded.


author: FOLLEY, Justice.

text:
    PARMLEY v. PARMLEY et al.
    No. 5268.
    Court of Civil Appeals of Texas. Amarillo.
    March 3, 1941.
    Rehearing Denied April 7, 1941.
    H. D. Stringer, of Memphis, for appellant.
    Morgan, Culton, Morgan & Britain, of Amarillo, for appellees.
   FOLLEY, Justice.

This is a bill of review proceeding originally instituted on November 9, 1939, in the County Court of Donley County, Texas, by the appellant, W. Edd Parmley. The suit was to review and to set aside certain orders of the probate court in a guardianship proceeding in the county court of such county wherein J. W. Parm-ley was the guardian, his minor son, W. Edd Parmley, the ward and the New Amsterdam Casualty Company the surety on the guardian’s bond. J. W. Parmley and the New Amsterdam Casualty Company were the original defendants. 1

The appellant sought to review and set aside three orders of the probate court. The first was of the date of January 16, 1933, which allowed the guardian $240 for living expenses of the ward from July 23, 1932, to the date of the order and $25 per month for the ward’s living expenses accruing thereafter. The second order attacked was one of the date of April 14, 1933, allowing the guardian to borrow $165 in a lump sum from the Donley County State Bank and to pledge to such bank as security therefor his monthly allowance of $25 from the ward’s estate as evidenced by the order of January 16, 1933. The third order challenged was of the date of August 14, 1937, which terminated the guardianship and discharged the guardian and his surety.

The appellant alleged that he became of age on December 27, 1936; that the portion of the order of January 16, 1933, which allowed the guardian $240 was void because the guardian was appellant’s father and under legal and moral duty Jo support the appellant during his minority; that the guardian was well able to support the ward and, in fact, did do so; that the expenses, if any, to which the $240 advancement was applied were incurred in part before the guardianship proceedings were begun and the balance without any previous order of the court authorizing the same; that no claim with reference to the advancement was presented and allowed by the court; that such sum was from the corpus of the appellant’s estate and not income therefrom; that the allowance of $25 per month was void because no evidence was offered showing any legal necessity for an expenditure from the corpus of the appellant’s estate; that there was no necessity therefor because the guardian was in a position to support the appellant and did do so; that the order of April 13, 1933, in regard to the loan from the bank was void because the loan was a personal loan to the guardian and constituted an attempt to divert the estate of the appellant to wholly illegal uses; and that the order terminating the guardianship and discharging the guardian and his surety was void because no citation was ever issued or served as required by law and because no evidence was presented in support of the final account of the guardian and because the account was never approved as required by law. The appellant prayed that the orders mentioned be set aside and the final account of the guardian be restated.

The guardian waived service of citation and entered his appearance in the county court. The New Amsterdam Casualty Company, the appellee herein, filed a general demurrer and general denial and specially excepted to appellant’s petition on the theory that the two year statute 'of limitation was a bar to the right of the appellant to prosecute his bill of review.

The plea of limitation was sustained by the county court and the suit dismissed. From that judgment the appellant, W. Edd Parmley, appealed to the District Court of Donley County, Texas.

In the district court the appellant filed an amended petition on March 18, 1940, in which he made substantially the same allegations as he made in the county court and sought the same relief. However, in such amended petition he failed to allege the date he attained his majority, merely alleging that he was then of age; and this allegation, the appellee asserts, was added in pen and ink after the capacity of the appellant to maintain the suit was challenged in the district court. On April 13, 1940, the New Amsterdam Casualty Company filed an amended original answer for itself and on behalf of J. W. Parmley, the guardian. In addition to the same plea of limitation urged in its former answer, the appellee specially excepted to appellant’s amended petition on the ground that it did not sufficiently show that the appellant was not disqualified by his minority to maintain the suit. Thereupon, the appellant filed a supplemental petition in which he challenged the right of the ap-pellee to answer for the guardian and denied the right of the attorneys for the ap-pellee to appear in the guardian’s behalf. J. W. Parmley also filed an answer in the district court in which he confessed the justice and equity of appellant’s cause of action; denied the right of appellee’s attorneys to represent him; agreed that judgment might be rendered against him setting aside the three orders about which the complaint was made; agreed that his final account as guardian might be restated to the effect that he had received $1,000 as guardian of the ward; agreed that there were no lawful credits on such account except the premium of the guardianship bond in the sum of $100; and further alleged that during the guardianship he was able to support his child, W. Edd Parmley, without recourse to the funds of the estate of the minor, and confessed judgment in accordance with his answer.

On April 13, 1940, in a hearing in the district court, the court sustained both of the exceptions of the appellee above mentioned, that is, the one 'challenging the right of the appellant to prosecute the suit because his amended petition allegedly failed to sufficiently show his majority and the other with reference to the two year statute of limitations as a bar to the relief sought; and thereupon dismissed the suit. It is from this judgment that the appeal is prosecuted to this court.

At the outset it shortld be stated that in this suit there was no attack made upon any orders approving or disapproving the claims of third parties so as to bring this case within the prohibition against a bill of review to revise or set aside such orders as expressed in De Cordova et al. v. Rogers, 97 Tex. 60, 75 S.W. 16, and more recently reannounced in Jones et al. v. Wynne et al., 133 Tex. 436, 129 S.W.2d 279.

It is our opinion the determination of the question of limitation will dispose of the controlling issue in this appeal. The trial court’s judgment in this c respect was based upon the appellant’s allegation in his original petition that he became of age on December 27, 1936, which was more than two but less than four years before the original bill of review was filed in the county court. The chief controversy in this appeal is whether the two or the four year statute of limitation applies to appellant’s suit. The appellee contends that the action comes within the provisions of article 932, Vernon’s Annotated Civil Statutes. The appellant contends that such article has nothing to do with a bill of review proceeding brought under article 4328, Vernon’s Annotated Civil Statutes, and contends that, since there is no specific limitation prescribed for such action, it is governed by the general limitation of four years as provided in article 5529, R.C.S. of 1925, Vernon’s Ann.Civ.St. art. 5529. No contention is made by either party that limitation of any sort commenced to run against the appellant during his disability of minority.

Article 4328 is under the general subj ect of “Guardian and Ward” in the statutes and is as follows: “Any person interested may, by a bill of review, filed in the court in which the proceedings were had, have any decision, order or judgment rendered by such court, or by the judge thereof, revised and corrected on showing error therein. But no process or action under such decision, order or judgment shall be stayed except by writ of injunction.”

Article 932 is under the general subject of “Certiorari” in the statutes and is as follows: “Any person interested in the estate of a decedent or ward may have the proceedings of the county court therein revised and corrected at any time within two years .after such proceedings were had, and not afterward. Persons non compos mentis, infants and femes covert shall have two years after the removal of their respective disabilities within which to apply for such revision and correction.”

Upon examination of the present revision of the statutes it will be noted that article 932 was an Act of the Second Legislature of Texas of the date of March 16, 1848, which may be found in volume 3, Gammel’s Laws of Texas (1847-1854), p. 107, 108. The original law was substantially the same as the present law except the original was in three divisions or sections (7, 8 and 9) and the body of the same used the term “writ of ’ certiorari” and made it specific that certiorari was the sole subject of the decree. In the revised statutes of 1879, under the general subject of “Certi-orari”, the law was codified as article 290 and given substantially the same language as contained in the present statute, thereby omitting from the body of the article any reference to certiorari, but placed it in Title XIV, Chapter 1, under the subject of “Certiorari to the County Court”. In the later revisions the article still remained under the general subject of “Certiorari”. The law in its present form as article 932 is placed in Title 27 which deals exclusively with certiorari, and is found in that portion of Title 27 which deals with the subject of “Certiorari to the County Court”. It is therefore- apparent that the limitation of two years expressed in article 932 as it now exists concerns only writs of certio-rari and could by no stretch of the imagination relate to a bill of review prosecuted under the provisions of article 4328.

Article 4328 is in precisely the same language as it was when it seems to have first appeared in the code of 1879, then as article 2717. There being no period of limitation expressed in the article itself, the limitation to such an action must necessarily be governed by some other article of the statutes. Article 2236, Vernon’s Annotated Civil Statutes, could have no application here, since that statute deals only with default judgments rendered upon service of process by publication. A casual examination of article 5526, R.C.S. of 1925, Vernon’s Ann.Civ.St. art. 5526, with its various subdivisions, will reveal that such an action as this is not embraced within any of the two year limitation clauses therein expressed. Nor do we find any other statute applicable to such a bill of review except possibly article 5529, which is the general limitation statute of four years.

We are compelled to admit that the authorities are not entirely in harmony on the question here presented. To the effect that such an action is barred within two years are the following authorities: McKinley et al. v. Salter et al., Tex.Civ.App., 136 S.W.2d 615; Murchison v. White et al., 54 Tex. 78; Best et al. v. Nix et al., 6 Tex.Civ.App. 349, 25 S.W. 130; Stillwell v. Standard Savings & Loan Ass’n, Tex.Civ.App., 30 S.W.2d 690; Jones v. Parker, 67 Tex. 76, 3 S.W. 222; Kleinecke v. Woodward, 42 Tex. 311; Miller et al. v. Miller et al., Tex.Civ.App., 53 S.W. 362, writ denied; McAnear et al. v. Epperson et al., 54 Tex. 220, 38 Am.Rep. 625; Fleming v. Seeligson, et al., 57 Tex. 524.

To the effect that the general limitation statute of four years controls this action are the following cases: Stewart et al. v. Robbins et ux. 27 Tex.Civ.App. 188, 65 S. W. 899, writ refused; De Cordova v. Rogers, 97 Tex. 60, 75 S.W. 16; Nicholson v. Nicholson et al., 59 Tex.Civ.App. 357, 125 S.W. 965, writ refused.

We shall not attempt to discuss or distinguish the various holdings upon this issue. To do so would prolong this opinion beyond reasonable bounds. A casual examination, however, will reveal that some of the old cases by the Supreme Court in support of the two year pefiod were apparently based upon a limitation statute which does not now exist. Suffice it to say that the more recent • expressions which have the approval of the Supreme Court are to the effect that an action of this sort is governed by the general limitation statute of four years.

In De Cordova et al. v. Rogers, 97 Tex. 60, 75 S.W. 16, 18, Chief Justice Gaines, speaking for the Supreme Court, relative to article 4328 (then article 2799), said: “It would seem that this provision must of necessity be subject to some limitation. For example, it was hardly contemplated that the action of the court in appointing ,a guardian would be subject to be revised many years after the appointment has been made. We have not found that the statute prescribes any special limitation as to the time in which the suit may be brought. The general limitation of four years would probably apply, but minors are excepted during the period of their disability.”

The case of Stewart et al. v. Robbins et ux., 27 Tex.Civ.App., 188, 65 S.W. 899, 901, writ refused, was a suit similar in nature to the instant suit. It was brought under what is now article '4298 relative to compelling guardians to file an account for final settlement. Such article provides no period of limitation. In that case will be found a very interesting discussion of the question of limitation. The opinion of the court in that- case referred to the holding of- the Supreme Court in Murchison v. White, supra, and to that of the Court of Civil Appeals in Best v. Nix, supra, and indicated such holdings were based upon a statute which had not been carried forward in the Revised Statutes. From the Stewart v. Robbins case we quote: “Plaintiffs in error insist that the defendants in error are subject to the two-year statute of limitation. If so, it is clear that Grace Robbins was barred of the remedy of which she sought to avail herself at the time of the institution of this suit. We are of opinion, however, that it is the four and not the two year statute of limitation that must be applied to the facts of the case. In Murchison v. White, 54 Tex. 78, and in McAnear v. Epperson, [54 Tex. 220] 221, 38 Am.Rep. 625, it was held that proceedings similar to the one before us were barred in two .years; and the rule was so applied by the court of civil appeals of the Third district in the case of Best v. Nix, 6 Tex.Civ.App. 349, 25 S.W. 130. These cases, however, are evidently based upon former statutes not now in force. Article 4616, Pasch Dig., provided that ‘no * * * bill of review shall be granted by any decree * * * after two years from the time such judgment or decree shall have been made final,’ but this does not seem to have been carried forward into our present Revised Statutes. The statute upon which the original complaint herein is based provides that, should the guardian fail to file his account for final settlement at the proper time, any one interested -in the estate may cause him to be cited to do' so. The time within which such interested person may so do is not specified, nor has the statute fixed specifically a time within which original suits to set aside final judgments may be filed. So that we think we must apply the rule prescribed in article 3358, to the effect that ‘every action * * * for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not after-wards.’ ”

The case of Nicholson v. Nicholson et al., 59 Tex.Civ.App. 357, 125 S.W. 965, 967, writ refused, was a bill of review to revise and correct the final settlement of 'the guardian therein. 'On the question of limitations in such cause it is said: “The statute does not prescribe the time in which the court shall or shall not exercise the power. It has been ruled, however, that general limitation statutes would apply to the right of applicants to file the bill. De Cordova v. Rogers, 97 Tex. 60, 75 S.W. 16. This ruling is persuasive that the court has the power to review the final settlement at any time a,fter the entry of the order before the bar of limitation is complete.”

We are frank to state that had it not been for the Supreme Court’s action in the denying of a writ of error in Miller et al. v. Miller et al., Tex.Civ.App., 53 S.W. 362, we would have had little difficulty in deciding that the general limitation statute of four years governs this proceeding. The other cases relied upon by the appel-lee are either the old cases of the Supreme Court when there apparently existed a two year statute of limitation applying to all bills of review, or they are cases which do not have the express approval of the Supreme Court. But there can be no doubt that the Miller case was decided after the old law regarding bills of review was, in effect, repealed. From the Miller case we find this succinct language (53 S.W. page 363) : “A bill to review the proceeding of the probate court in a guardianship can be brought by the minors before the expiration of two years after reaching their maturity.”

It must be noted that the above statement from the Miller case does not specifically say that the suit may not be brought after two years have expired but merely states that it can be brought within two years. However, the authorities cited in support of the statement are to the effect that the suit is barred in two years, and the import of the statement would be to exclude a greater period of limitation than two years. A singular thing about the Miller case is that regardless of the specific pronouncement made by the court it upheld the recovery of both minors therein when the facts recited showed that one of them had been of age more than two years before the suit was filed; but recovery may have been allowed upon the theory that the other minor could maintain the suit in behalf of both of them. At any rate, the Stewart case, the De Cordova case and the Nicholson case are later decisions than the Miller case, all of which have been under the supervision of the Supreme Court and received its approval. We are therefore constrained to hold that the action herein is not governed by the two year statute of limitation, but is governed by the general limitation statute of four years. Such being true, it follows that the trial court erred in sustaining the limitation plea of the appellee herein.

In view of another trial we deem it expedient and sufficient to state that in our opinion the record presented failed to establish any disability of appellant with reference to minority. Hence, he was not thus disqualified to prosecute this suit. We are further of the opinion that under this record the appellee was authorized to defend this suit. •

The judgment is reversed and the cause remanded.