text:
    KEESEE v. CATE.
    No. 5211.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1940.
    G. E. Lockhart and W. R. Porter, both of Lubbock, for appellant.
    Burton G. Hackney, of Brownfield, and Vickers & Campbell, of Lubbock, for appellee.
   FOLLEY, Justice.

This suit was filed in Cause No. 679 in the County Court of Terry County, Texas, by the appellant J. V. Keesee against the appellee J. A. Cate seeking $129.96 actual, and $500 exemplary, dafnages for the alleged wrongful sequestration by the ap-pellee of six bales of appellant’s cotton sequestered in a former suit in the same court.

The appellant alleged that in November, 1937, Cate as plaintiff sued him as defendant in Cause No. 648 in the County Court of Terry County alleging a landlord’s lien upon the cotton produced by the appellant from thirty acres of land belonging to Cate; that on said date Cate had a writ of sequestration issued in such cause and through the sheriff took possession of the six bales of appellant’s cotton; that in November, 1938, judgment was rendered in the cause in favor of the appellant whereby the appellant recovered the cotton from Cate; that on December 3, 1938, the sheriff delivered the cotton to the appellant in accordance with the judgment in Cause No. 648; that the affidavit for the sequestration was false and no probable causé existed for the sequestration; that the cotton was held by the sheriff for more than a year; that if appellant had possessed the cotton during such period he could have secured a Government loan on the cotton but was unable to do so because the cotton was in the hands of the sheriff; that after the cotton was redelivered to him he was forced to sell the same upon the open market at per pound; that if the cotton had not been sequestered he could have received $106.87 more money for the cotton from the Government loan than that received from the sale in the open market; that he was further damaged in the sum of $23.09 as storage charges on the cotton during the period the same was held by the sheriff; and that since the writ was wilfully and maliciously issued without probable cause he was entitled to receive $500 as exemplary damages.

The appellee Cate urged a general demurrer to the appellant’s petition and interposed the former recovery as a plea in abatement, plea in bar, demurrer and as res adjudicata to appellant’s demands in the instant suit, all of which pleas, after the introduction in evidence of the record in the former case, were sustained by the court and judgment rendered for the ap-pellee.

In the former action in Cause No. 648 the appellant made no claim for damages of any sort and the contest therein was resolved solely into one to determine the ownership of the cotton.

Apart from the allegations in appellant’s petition showing the proceedings in the former suit, no contention is made that the petition is subject to a general demurrer. In fact, all of the pleas of the appellee are based upon the theory that the judgment in the prior suit forecloses the right of the appellant to litigate the issues presented in the instant suit. Therefore, a determination of the question of res ad judicata will dispose of the whole controversy in this appeal.

The rule is expressed in Foster v. Wells, 4 Tex. 101, 102, 104, that a judgment is “not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided”. This rule, although a correct proposition of law, is but a general rule and has its limitations and exceptions. Moore v. Snowball et al., 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596; Freeman on Judgments, Fifth Edition, paras. 674, 675, et seq.

In discussing this rule and its attendant variations, we find a clear and concise statement in para. 675 of Freeman on Judgments, Fifth Edition, as follows: “Even in those cases to which it is applicable, the general expression often found in the reports, that a judgment- is conclusive of every matter which the parties might have litigated in the action, is misleading. What is really meant by this expression is, that a judgment is conclusive upon the issues made or tendered and, so far as those issues are concerned, of everything which might have been urged for or against them. It may be that the plaintiff might have united other causes of action with that set out in his complaint, or that the defendant might have interposed counterclaims, cross-bills, and equitable defenses, or either of the parties may have acquired new rights pending the litigation, which might, by permission of the court, have been pleaded by supplemental complaint or answer, and therefore might have been litigated in the action. But as long as these several matters are not tendered as issues in the action, they are not affected by it. Whatever material allegations the plaintiff makes in his pleadings he must maintain, if they are controverted, and failing to do so, a judgment against'him is conclusive of their falsity. The defendant, on his part, must controvert all these allegations which he wishes to gainsay, and failing to do so, their truth is incontestably established as against him. He cannot by failing to deny any of them, or if he denies them, by failing to offer evidence to controvert that offered by plaintiff in support of any of them, successfully claim that it has not been litigated and determined against him. In other words, neither party can decline to meet an issue tendered by the other, and then maintain that it has not become res judicata. The plaintiff must support all the issues necessary to maintain his cause of action. The defendant must bring forward all the defenses which he has to the cause' of action asserted in the plaintiff’s pleadings at the time they were filed. In this sense it is true that a judgment is conclusive of every matter which might have been litigated and decided in the action.”

Practically the same rule as expressed above from Freeman on Judgments is reiterated in similar language in 26 Tex.Jur. 137, para. 419.

The rule as applied to the defendant in a former action who becomes the plaintiff in a subsequent action is discussed in 26 Tex.Jur. 169, para. 433, in the following language: “The rule which requires a defendant to set up all the defenses that he may have must not be construed too broadly. In the first place, it is clear that the rule relates only to matters which are of a purely defensive nature — that is, matters that are embraced within the cause of action asserted in plaintiff’s petition, and does not refer to matters which may constitute an independent cause of action on the part of the defendant. As to such matters, he may set them up or withhold them as he pleases; and if he adopts the latter course, the judgment will not preclude him from suing thereon thereafter.”

In further application of the rule to .the defendant, on page 171, para. 434 of the same volume of Texas Jurisprudence, it is stated: “It is clear from what has heretofore been said that the rule which requires a defendant to set up all matters of defense which are necessarily involved in the claim or demand presented by the plaintiff’s petition does not apply to set-offs and counterclaims. On the contrary, it is almost axiomatic that while the defendant is entitled to set up any cross-demands that he may have, his failure to do so will not preclude him from bringing a subsequent suit thereon, because a demand of that nature is not embraced within the cause of action asserted by the plaintiff.”

A situation very similar to that of the instant case existed in Morgan v. Tims, 44 Tex.Civ.App. 308, 97 S.W. 832, 833. The plaintiff therein was the defendant in a former distress warrant action which proceeded to a final judgment. Thereafter, in the cause from which the appeal was prosecuted, such defendant in the former action sued for damages in a subsequent action for the alleged illegal and unjust suing out of the distress warrant. A plea of res adjudicata was raised by the defendant in the second suit. In disposing of the issue thus presented the court said: “The defendant contends that, in the distress proceedings, a judgment foreclosing the distress warrant was had, and that such judgment was res adjudicata as to the right of plaintiff to recover in this suit. We do not concur in this contention. There is nothing in the record to show that the plaintiff here reconvened in that suit for damages, and the foreclosure there only prohibits him from showing defects in the affidavit, bond, writ, etc., necessary in procuring the writ. In other words, such judgment is only conclusive as to the regularity of the proceedings, and does not estop the plaintiff from showing that the grounds authorizing distress proceedings did not exist, and that the writ was unjustly sued out. The plaintiff here had not only the right to reconvene for damages in that suit, but, not doing that, he could bring a separate suit for his damages that the distress warrant was ‘illegally and unjustly’ sued out.”

We are therefore of the opinion that the appellant Keesee could have set up his counter claim for damages in Cause No. 648 but he was not compelled to do so, the same not being a defense necessarily involved in the demand of Cate therein. We further hold that his failure to do so does not preclude him from asserting such claims in this subsequent suit. It follows that the court erred in sustaining the pleas urged by the appellee. Rountree & Green v. Walker, 46 Tex. 200; Norwood v. Interstate Nat. Bank of Texarkana, 92 Tex. 268, 48 S.W. 3; Seiber v. Johnson Mercantile Co., 40 Tex.Civ.App. 600, 90 S.W. 516; Anderson v. Rogge et al., Tex.Civ.App., 28 S.W. 106; Cleveland et al. v. Ward, Judge, et al., 116 Tex. 1, 285 S.W. 1063.

The judgment is reversed and the cause remanded..


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    TRADERS & GENERAL INS. CO. v. JENKINS.
    No. 4978.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1940.
    Rehearing Denied Nov. 4, 1940.

      Simpson, Dorenfield & Fullingim, of. Amarillo, and Lightfoot, Robertson & Gano and Dan P. Johnston, all of Fort Worth, for plaintiff in error.
    James O. Cade, of Amarillo, for defendant in error.
   STOKES, Justice.

This suit was filed by defendant in error, W. B. Jenkins, as an appeal from an award of the Industrial Accident Board. Fie alleged that while employed in Potter County by John Farrell he sustained an accidental injury while in the course of his employment, which employment consisted of tearing down the walls of an old brick building. He alleged that while standing upon a scaffold, pushing and removing the brick, the wall toppled and fell, causing him to fall from the scaffold, a distance of some thirty feet to the ground. The allegations were sufficient, if supported by proof, to warrant a verdict of total, permanent incapacity. Plaintiff in error was carrying the compensation insurance for Farrell and its answer consisted of a general demurrer, general denial, and some special pleas with reference to the jurisdiction of the court.

The case was submitted to a jury upon special issues in answer to which the jury found substantially that, while in the course of his employment with Farrell, defendant in error sustained an injury which rendered him totally incapacitated for work, and that such incapacity was permanent. They further found that defénd-ant in error did not sustain partial incapacity by the injury; that manifest hardship and injustice would result if the compensation were not paid in a lump sum; that there were other employees of the same class as defendant in error working in or near Amarillo substantially three hundred days during the year immediately preceding May 31, 1937, the date of the injury; that the average daily wage of such employees was $2.40, and that the sum of $14.40 per week should be fixed as the average weekly wage of defendant in error. The jury further found that defendant in error was not free from diseases that were not traceable to the injuries sustained by him, but that his present incapacity to labor is not due solely to such diseases.

Based upon the findings of the jury, the court entered judgment in favor of defendant in error for total and permanent disability in the sum of $2,768.41, from which plaintiff' in error has prosecuted a writ of error.

Under the twenty-nine propositions of law contained in plaintiff in error’s brief, the contentions are made that the judgment of the trial court should be reversed upon the following grounds: First, that certain special issues were so framed as to be upon the weight of the evidence in violation of the. provisions of Art. 2185, R.C.S. 1925; second, certain special issues were submitted to the jury when there was no evidence to support them; third, failure of the court to submit special issues upon the question of whether or not the defendant in error would, in the future, suffer incapacity by reason of the diseases of arteriosclerosis and osteoarthritis with which he admittedly was suffering at the time the injury occurred; fourth, that there is no basis for the judgment because there is no finding by the jury as to whether or not defendant in error will suffer incapacity in the future by reason of the pre-accident diseases and the court was not authorized to make such findings; fifth, that the jury were permitted to find ’the weekly wage of defendant in error under subsection 2 of Sec. 1 of Art. 8309, pertaining to other employees of the same class having worked substantially the whole of the preceding year, without first submitting to the jury a special issue upon subsection 1 of the section mentioned; and, sixth, that certain special issues were so framed as erroneously to place the burden of proof upon plaintiff in error.

Under the first contention in the arrangement which we have made, error is assigned in the submission by the court of special issue No. 2-b, which was as follows: “What do you find, from the preponderance of the evidence, to be the length of time, if any, of such total incapacity, if any? Answer ‘It is permanent’ or ‘From -to -’ (filling in the blanks with the dates, if any, found by you.)”

The jury answered- this issue: “It is permanent.” The contention is made by plaintiff in error that this special issue was on the weight of the evidence because it amounted to an intimation from the court to the jury that defendant in error did suffer some total incapacity as a result of the alleged injuries and that such incapacity extended from some fixed date to another fixed date.

There would be some merit in plaintiff in error’s contention had the court not submitted to the jury special issue No. 2-a immediately preceding the special issue here complained of. Special issue No. 2-a asked of the jury if they found from a preponderance of the evidence that the injury, if any, sustained by defendant in error rendered him totally incapacitated for work. This issue was answered in the affirmative and immediately following it, the court submitted special issue No. 2-b which is here complained of. In submitting it, the court instructed the jury that it should be answered if they had answered special issue No. 2-a in the affirmative. Thus it will be seen that, instead of assuming in special issue No. 2-b that defendant in error did suffer some total incapacity as a result of the alleged injuries, the court placed that burden upon the jury by submitting it conditionally, that is, upon the condition that they had already answered special issue No. 2-a to the effect that the injuries rendered defendant in error totally incapacitated for work. As we view the special issue complained of, the court was seeking to have the jury find the length of time, if any, of the total incapacity, if any they had found in answer to special issue No. 2-a, which the defendant in error had suffered. Requiring the jury to answer “It is permanent” or “From - to -,” instructing them to fill in the blanks with the dates, if any, found by them, did not, therefore, constitute an intimation from the court to the jury as to the court’s idea of the matter inquired about.

Under other assignments and propositions plaintiff in error contends that special issue No. 7-a as submitted by the court was upon the weight of the evidence and an assumption by the court that defendant in error was suffering from diseases that were traceable to his alleged injury. That special issue reads as follows: “Do you find, from a preponderance of the evidence, that the plaintiff is free from diseases that are not traceable to the 'injuries, if any, sustained by him on May 31, 1937? Answer Yes or No.”

This special issue was answered in the negative and the complaint is that the court, in submitting it, assumed that defendant in error was suffering from diseases that were traceable to the injury. If there had been a contention made by defendant in error that he had received an injury and was then suffering from a disease or infection that naturally resulted therefrom, the contention of plaintiff in error concerning this issue may have contained some merit. No such claim was made by defendant in error, however, and the record does not show any reference to diseases of defendant in error that in any respect could have naturally resulted from the injury. It was shown by a number of physicians that, before his alleged injury, defendant in error was a'fflicted with the diseases of arteriosclerosis and osteoarthritis. In fact, this was. not controverted by plaintiff in error and, under the record before us, the reference by the court to diseases not traceable to the injuries in the special issue under consideration could not be construed as a reference to a disease or diseases other than those about which the witnesses had' testified and with which admittedly defendant in error was suffering at the time of the injury.

We have considered all of the contentions made by plaintiff in error in reference to the matters discussed and, in our opinion, the special issues as submitted are not subject to the objections made.

The second general contention made by plaintiff in error relates again to the submission of special issue No. 2-b wherein the court required the jury to find the duration of defendant in error’s total incapacity, if any, the further complaint being that there was no legal evidence to support the submission of such an issue. As we have stated, a number of physicians testified that defendant in error, at the time he was injured, was suffering from diseases known as arteriosclerosis and osteoarthritis," which, in ordinary parlance, means hardening of the arteries and inflammation of the bones and joints. Some of them testified that they saw no cause for disability or incapacity to work in so far as the injury itself was concerned and that if he was incapable of performing work and labor it was due to the old chronic diseases and conditions mentioned rather than to the injuries received by him on the occasion when he fell from the scaffold. Dr. Vaughan was called as a witness for defendant in error and, in answer to a hypothetical question covering substantially the facts attending the accident and the conditions found by the witness in his examination of defendant in error, said that, in his opinion, the disability of defendant in error to perform labor was due to the fall he received on May 31, 1937. He further said that in his opinion defendant in error was not able to work and, taking into consideration his age of fifty-nine years and the facts stated in the hypothetical question, in his opinion defendant in error will not again be able to work at manual labor. In addition to this testimony, Mrs. Jenkins, wife of defendant in error, testified that she and defendant in error had been married thirty-four years; that during most of that time defendant in error had been engaged in farm work and other manual labor. She said that she could not recall any instance where he was unable to work because of illness or any other type of physical disability. Other facts were adduced which indicate that prior to the accident defendant in error had apparently been in good health and able to perform most any kind of manual labor. It is further shown that since the injury he has not been able to perform any kind of labor and the physicians who examined him testified that, in their opinion, he was not, and never again would be, able to perform manual labor. These facts were, in our opinion, sufficient to require that the issue be submitted to the jury and at least to make an issue on the question of whether or not the alleged incapacity of defendant in error was due to the injury.

Under other assignments plaintiff in error contends there was no basis in the evidence for the submission of special issues Nos. 5-a and 5-b as to whether or not there were employees of the same class as defendant in error working at Amarillo substantially three hundred days of the year immediátely preceding the date of the injury in the same or similar employment. While defendant in error alleged he was engaged in similar employment for the same or other employers for substantially the whole of the year preceding his injury, the evidence wholly failed to establish such allegation. It is shown that during the year 1936 defendant in error lived on a farm owned by him in New Mexico and what work and labor he performed during that year was on the farm except during the wheat harvesting period he went to Colorado and labored in the wheat fields. No witness testified that defendant in error had worked at common labor at Amarillo or its vicinity more than a month or two. John Farrell, the employer for whom defendant in error was working at the time of the accident, testified that defendant in error was, at the time, engaged in common labor, doing all kinds of work. He said that he did not have men working as many as three hundred days wrecking buildings, but that he did have men doing common labor at his lumber yard who had been engaged in that kind of labor for a year preceding the accident. The objection made to the submission of these issues is that the testimony did not show the labor in which these employees were engaged during the preceding year was the same as that which defendant in error was performing at the time he was injured. The law does not require proof that the labor in which such other employees engaged during the preceding year be the identical work in which defendant in error was engaged at the time he received the injury. It is sufficient if the labor engaged in by them was of the same class. The testimony of the employer was that the labor of his other employees was of the same class and we are of the opinion that it was sufficient to warrant the court in submitting the case to the jury in the form in which it was submitted.

Plaintiff in error further contends under proper assignments that the court was not warranted in submitting special issues to the jury under subsection 2 relating to other employees of the same class until the jury had first passed upon subsection 1 to the effect that defendant in error himself had not worked at the same or similar employment during the year preceding the accident. If there had been any testimony to the effect that defendant in error had worked at the same or similar employment during the preceding year so as to raise an issue on that question, this contention of plaintiff in error would be sound. In view of the record, however, there was no such issue made by the evidence and we know of no rule under which the court was required to submit it in the absence of evidence to support it. We do not agree with plaintiff in error in these assertions and its assignments of error pertaining to them are overruled.

Under the third and fourth contentions plaintiff in error asserts that the court erred in refusing to submit special issues upon the question of whether or not defendant in error would suffer incapacity in the future By reason of the diseases with which he was suffering at the time he was injured. The court charged the jury that “permanent incapacity” meant such incapacity as would continue through the remainder of one’s life. Under special issues that were submitted, the jury found defendant in error had sustained an injury which had rendered him incapable of performing work and that such incapacity was permanent. Under the instructions given in the charge, these findings are to the effect that the disability of defendant in error was caused by the injury and that the injury brought about a disability that is permanent, that is, will continue through the remainder of his life. We think the court went as far as he was required under the law in submitting these issues. There was no testimony to the effect that, without the injury, defendant in error would have become incapacitated by reason of the diseases with which he was suffering and no such issue having been made by the testimony, the court was not required to submit it.

Complaint is made by plaintiff in error because the court submitted special issues upon the question of temporary incapacity in an affirmative manner; that is, in such manner as to warrant a judgment in. favor of defendant in error for partial incapacity in the event the jury should find he was not totally disabled. The gravamen of this contention is that the evidence having raised the question of partial incapacity and plaintiff in error having pleaded a general denial, it was entitled to have the question of partial incapacity submitted as a defense in such a manner as to place upon defendant in error the burden of proving he was not partially incapacitated before he would be entitled to recover for total incapacity. This would have been accomplished if the court had submitted the question of partial incapacity in a negative form' and then placed upon defendant in error the burden of establishing the fact that he was not temporarily incapacitated. There are expressions in the opinions of the courts which seem to sustain plaintiff in error in this contention, but in the recent case of Wright v. Traders & General Insurance Co., 132 Tex. 172, 123 S.W.2d 314, 316, Judge Taylor, speaking for Section B of the Commission of Appeals, has clarified any confusion that may have heretofore existed in regard to that matter. In that case the court said: “The issue affirmatively phrased correctly submits .plaintiff’s alternative basis of recovery and at the same time accords defendant an affirmative submission of its ground of defense. The burden of proof is not misplaced by an affirmative statement of the issue, as the defendant has the burden of establishing by a preponderance of the evidence its defense of partial incapacity. Nor has defendant any just ground of complaint to its submission affirmatively. It is no more onerous for defendant to establish the fact of partial incapacity by an inquiry stated affirmatively than it would be to establish the same fact by an inquiry phrased negatively. The mere fact that it is more likely that a mistrial due to conflicting findings will result from its negative submission constitutes no just reason therefor. If the probability of such a result is the sole reason for negative submission it is not predicated upon a right, and if the court fails or refuses to submit the issue in such form the litigant desiring that it be so submitted suffers no denial of right. No reason is apparent why the finding of the jury upon the issue affirmatively submitted cannot justly serve the diverse purposes of plaintiff and defendant.”

Defendant in error was entitled to the special issue as an alternative to his plea of total incapacity. Granting that plaintiff in error was entitled to a special issue submitting the question in a different form, it made no request for its submission. Although there has been more or less conflict in the holdings of our courts in reference to the question of whether or not under such circumstances the duty rests upon a defendant to request special issues, the recent trend is decidedly to the effect that, before the failure of the trial court to submit such an issue can be presented to the appellate court for review, such request must be made. Wichita Valley Ry. Co. v. Minor, Tex.Civ.App., 100 S.W.2d 1071, 1072.

In the case cited, Chief Justice Leslie, speaking for the Eastland Court of Civil Appeals, said: “No issue was submitted involving the alleged negligence of appel-lee P. E. Minor. The first and second assignments predicate error on the court’s failure to submit such issue. Conceding that the appellant was entitled to the issue, it merely excepted to the action or ruling of the court in omitting to give the issue, and did not formulate an issue presenting the question and request the court to submit the same to the jury. Such objection and exception under the circumstances do not entitle the defendant to a review by the appellate court of the alleged error of the trial court in failing to submit said issue. Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Harris v. Thornton’s Dept. Store (Tex.Civ.App.) 94 S.W. (2d) 849; Harris v. Leslie [128 Tex. 81] 96 S.W. (2d) 276.”

The case further holds that the defendant must not only request the submission of such an issue, but that it is incumbent upon him to prepare and tender to the court, in due time, an issue which is correct under the pleadings and the evidence, citing Desdemona Gasoline Co. v. Garrett, Tex.Civ.App., 90 S.W.2d 636. See also Texas & N. O. Ry. Co. v. Mattie B. Crow, et al., 132 Tex. 465, 123 S.W.2d 649; Wichita Falls & O. Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

Under the sixth contention plaintiff in error makes the assertion that the court committed error in constructing the forms of certain special issues and, in such forms, submitting them to the jury. The complaint here presented is that the special issues began by asking the jury “Do you find from a preponderance of the evidence, etc.” and then instructing the jury to answer “Yes” or “No”. It is contended, as it has in a number of other cases been contended, that the use of this form in submitting special issues to the jury has the effect of placing upon both parties to the litigation the burden of establishing their contentions by a preponderance of the evidence, that is, upon the plaintiff to establish the affirmative and upon the defendant to establish the negative of the questions asked. Psimenos v. Huntley, Tex.Civ.App., 47 S.W.2d 622; McClelland v. Mounger, Tex.Civ.App., 107 S.W.2d 901; Fidelity & Casualty Co. v. Van Arsdale, Tex.Civ.App., 108 S.W.2d 550; Federal Underwriters Exchange v. Rigsby, Tex.Civ.App., 114 S.W.2d 354.

Being in doubt and not fully agreed among ourselves upon the legal correctness of the forms of special issues, we certified the question to the Supreme Court and it was answered in an opinion handed down by that court June 19, 1940. Traders & General Ins. Co. v. Jenkins, 141 S.W.2d 312. As we interpret.the opinion, no error was committed by the court below in respect to the forms of the special issues and this contention of plaintiff in error will be overruled.

'We have carefully considered all of the assignments of error presented by plaintiff in error and, being of the opinion that no reversible error is 'revealed by any of them, the judgment of the court below will be affirmed.


author: KRUEGER, Judge.

text:
    COPELAND v. STATE.
    No. 21177.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.

      Fred Whitaker, of Carthage, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of property over the value of fifty dollars. The punishment assessed is confinement in the state penitentiary for a term of three years.

It appears from the record that on or about November 18, 1939, appellant and his three companions came from Texarkana to Carthage in his automobile. They arrived in Carthage about 7:30 A.M. and immediately went to the Hawthorne Dry Goods Company store of which E. C. Cla-baugh was in charge and stole one suit of clothes, nine pairs of pants and nine pairs of women’s hose, the total value of which was $61.17. The parties were arrested while in the act of leaving Carthage and the property was recovered.

Appellant made a voluntary confession to the District Attorney which he repudiated on his trial. His contention is that he brought his co-defendants to Carthage at their request; that he did not know their purpose in coming, nor did he know that they had stolen any of the property until the officers overtook them and found the property concealed unde-r the rear seat of the car. He denied that he was in the store on the morning in question. However, there was testimony given by his companions and other parties that he did enter the store at the time.

Appellant filed a plea for suspension of sentence in case of a conviction and proved a good general reputation as a law-abiding citizen.

Bills of Exception Nos. 1, 2 and 4 relate to some claimed misconduct on the part of juror Moore. In the first two bills it is asserted that Moore made some remarks in the jury room to the effect that he would not give the d- negro a suspended sentence; that the other defendants had been awarded three years in the penitentiary and he would not give this one any less. This alleged misconduct was set up in a motion for a new trial. The court heard evidence on the question presented. The juror Nippert, who was the only person willing to recommend a suspension of sentence, testified that Mr. Moore made the remarks attributed to him. Moore denied this. Other members of the jury testified that they heard no such remarks being made by Mr. Moore or anyone else. The court found that the remarks attributed to Moore by Mr. Nippert were not made. The court’s conclusion upon that issue is justified by the evidence and is therefore binding on this court.

In Branch’s Ann.Tex.P.C., p. 295, sec. 574, it is said: “Where the alleged misconduct was made the subject of diligent investigation by and under the direction of the trial judge and settled in behalf of the State upon conflicting evidence, the decision of the judge will be given as much consideration on appeal as would be given to the verdict of a jury on any other question of fact, and if there is sufficient evidence to justify the action of the trial judge his decision thereon will not be disturbed on appeal unless clearly wrong.”

In support of the pronouncement of the law stated, many authorities are cited, among them Shaw v. State, 32 Tex.Cr.R. 155, 22 S.W. 588; Adams v. State, 48 Tex.Cr.R. 452, 93 S.W. 116; Johnson v. State, 118 Tex.Cr.R. 454, 40 S.W.2d 111.

By Bill of Exception No. 3 appellant shows that J. H. Nippert, fearing that the jury might be tied up over night and desiring to get home to his wife who was ill, consented to a three-year term in the penitentiary. This matter was also brought forward in the motion for a new trial. This juror could not impeach his own verdict. Hence the court’s action in overruling the motion for a new trial was justified. See Chant v. State, 73 Tex.Cr.R. 345, 166 S.W. 513; Powell v. State, 79 Tex.Cr.R. 526, 187 S.W. 334; Watson v. State, 82 Tex.Cr.R. 305, 199 S.W. 1113; Johnson v. State, 76 Tex.Cr.R. 346, 174 S.W. 1047.

The careful trial judge gave all of appellant’s requested instructions to the jury except the following: “You are further instructed that if you believe, or have a reasonable doubt, that the property taken at one time by the defendant, acting together with other parties, if he took any property, was under the value of Fifty Dollars, you will acquit the defendant.”

We are of the opinion that the evidence did not require such an instruction inasmuch as there was no testimony that the alleged stolen property was taken at different times.

The matter complained of in Bill of Exception No. 4 relating to misconduct of the jury was set up in appellant’s motion for a new trial and has been discussed by us in connection with Bills of Exception Nos. 1. and 2 and we see no need of reiterating what we have there said relative thereto.

■Having reached the conclusion that no reversible error was committed in the trial of the case, 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.


author: DUNKLIN, Chief Justice.

text:
    BROWN v. PHILLIPS PETROLEUM CO. et al.
    No. 14126.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 18, 1940.
    John A. Hughes, of Jefferson, William J. Gerron, of Brady, and Evans J. Adkins, of Brady, for plaintiff-in-error Winnie Brown.
    P. F. Graves, of Houston, for defendants-in-error Fohs Oil Co., Pilgrim Exploration Co., Cora B. Fohs, L. W. Wickes, R. E. McConnell and Francis M. Weld.
    R. K. Batten, of Houston, for defendant-in-error Phillips Petroleum Co.
    P. G. McElwee, of Houston, W. W. Harris, of Pittsburg, H. P. Smead, of Long-view, Scott, Hall & Lindsay, of Marshall, Ramey, Calhoun & Marsh, of Tyler, and Schluter & Singleton, of Jefferson, for other defendants-in-error.
   DUNKLIN, Chief Justice.

This is a suit in trespass to try title to' 65 acres of land out of the Francis White Survey, situated in Marion County, Texas. It was instituted by plaintiff, Winnie Brown. There were numerous defendants and interveners, and in plaintiff’s fourth amended original petition, she sought á recovery against all of them for a fee simple title to -the land, which she alleged belonged to her. Several interveners and defendants also filed cross-actions against plaintiff and other parties to the suit. The defendants and interveners answered plaintiff’s suit by general demurrer, general denial, pleas of not guilty and special pleas of limitation of three, five, ten and twenty-five years.

On trial of the case, plaintiff took a non-suit as against numerous defendants and interveners, and several of the cross-actions were likewise dismissed. Following that disposition of the parties, the court rendered judgment denying plaintiff, Winnie Brown, any relief as against each and all of the defendants and certain interveners; also in favor of the defendant, Emma Johnson, joined by her husband, Will Johnson, and Phillips Petroleum Company, a corporation, on their cross-action, against plaintiff, Winnie Brown, and other parties to the suit, namely, George Brown, George W. Hardy, Jr., Joe Price and Georgia Berry and her husband, John Berry, for title and possession of the 65 acres of land in controversy, all in accordance with an instructed verdict.

From that judgment plaintiff, Winnie Brown, has prosecuted a writ of error to the Court of Civil Appeals at Texarkana, no complaint of the judgment being made by any other party or parties to the suit. And by order of the Supreme Court, the case has been transferred to this court.

Much testimony was introduced on the trial. We shall cite such portions only as are controlling in determining the merits of the assignments of error presented.

On March 5, 1875, plaintiff, Winnie Brown, was lawfully married to Virgil M. Brown, in Natchitoches Parish, Louisiana. They lived together as husband and wife about two and a half years, and during the latter part of 1877, Virgil moved to Texas, leaving plaintiff in Natchitoches Parish, Louisiana. The parties never lived together or saw each other after that separation. No decree of divorce by any court either in Louisiana or in Texas was introduced in evidence. Ever since her marriage to Virgil, plaintiff has continued to live in Natchitoches Parish, and has never again married. After Virgil left Louisiana he never returned to that State to live, but continued to reside in Texas until his death in the year 1917, in Marion County, Texas. During the period of their separation there was no communication between them, and they never saw each other. At the time of their separation in Louisiana, Virgil requested plaintiff’s consent to a divorce, which she refused. No children were born of their marriage.

On the witness stand plaintiff admitted that some time after Virgil left her, she lived with one David Shelby for about a year; that they “were courting and trying to marry and that “if the law had not run him off because of some trouble we would have continued to live together because we were fixing to marry.”

John Cheatam, witness for the plaintiff,, testified that he knew Virgil M. Brown; that he knew when he came into Marion County, Texas, but did not know the year; that when he came he brought a woman with him by the name of Ella, who lived with him for quite a while; that some time after Ella left, he married Emma Barnett, who is one of the defendants, having married Will Johnson after the death of Virgil M. Brown. Her marriage to Virgil M. Brown was by a preacher, acting under the authority of a statutory license, but there is no official record in Marion County of such a license. According to the testimony of James Barnett, brother of defendant, Emma Johnson was born in 1867 and married 16 years later, towit, in 1883. They lived together as husband and wife until the date of Virgil’s death in 1917.

Title to the land in controversy was acquired by a deed from Douglas Jones, of the County of Marion, State of Texas, on November 25, 1912, the deed thereto reciting a consideration of $700 in hand paid by Virgil M. Brown and his wife, Brown, of the County of Marion, State of Texas, and the conveyance was to both husband and wife jointly, and was duly recorded. After its acquisition, Virgil and Emma occupied and used it as their homestead until the date of Virgil’s death. Ever since his death Emma has been in continuous, peaceable and adverse possession of the property, claiming the title thereto, using and enjoying the same and paying taxes thereon up to the date of the institution of this suit.

No children were born of the marriage to Emma. Virgil died intestate and no administration was .had on his estate, nor was there any necessity therefor. Virgil and his wife Emma were never divorced.

Virgil and both his said wives were colored people. Emma married Virgil in perfect good faith, and prior to the institution of this suit she had never heard of his former marriage to plaintiff. Virgil was a preacher, and occasionally officiated as such at religious gatherings, both in Louisiana and in Texas.

The testimony of plaintiff, Winnie Brown, and of defendant, Emma Johnson, was not contradicted by the direct testimony of any other witness; and the testimony of both was corroborated by that of several other witnesses.

! By several assignments of error the contention is presented that there was an absence of proof of a divorce from plaintiff, Winnie Brown. That defendant, Emma Johnson, was only the putative wife of Virgil, which at best gave her title to only one-half of the property, and the other half passed to plaintiff, as her half of the community property acquired by Virgil while he was her lawful husband.

Here we'have prima facie proof of two lawful marriages, the first to plaintiff, Winnie Brown, in the year 1875, and the second to defendant, Emma Brown, now Emma Johnson, in the year 1883, or 1887. For the purpose of this suit, counsel for appellant concedes the rule of presumption, and burden of proof to be as announced in Holman v. Holman, Tex.Com.App., 288 S.W. 413, 414, as follows: “Whenever a marriage is assailed as being invalid on account of a prior marriage having been contracted by one of the. parties to the assailed marriage, such prior marriage is presumed to have been dissolved before the second marriage was consummated. Nixon v. [Wichita] Land Co., 84 Tex. 408, 19 S.W. 560; Carroll v. Carroll, 20 Tex. [731] 732; Yates v. Houston, 3 Tex. [433] 449; 38 C.J. 1328. This presumption in favor of the validity of the second marriage must prevail, unless rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of such prior marriage could have been effected.”

In Floyd v. Fidelity Union Casualty Co., Tex.Civ.App., 13 S.W.2d 909, the same presumption is recognized and followed, but with the further holding that such presumption is rebuttable, and its effect is to cast upon the opposing party the burden of introducing evidence which, standing alone, is sufficient to negative the presumption, and thus present a disputed issue to be determined by the jury, even though it be insufficient to establish the same absolutely, and to a moral certainty.

Predicated upon that latter holding, counsel for appellant insist that the evidence introduced, considered in the most favorable light for the plaintiff, presented a controverted issue of 'fact, to be determined by the jury, whether the prior marriage to plaintiff was dissolved before Virgil Brown’s later marriage to defendant, Emma Johnson; and therefore the court erred in determining that issue in favor of the defendants and interveners, as a matter of law, by the peremptory instruction to .the jury. In that connection appellant cites the testimony, of Jesse Barnett, brother of defendant, Emma Johnson, fixing the date of her marriage to be the year 1883; that the marriage was in Marion County, Texas, where Virgil had lived for six years; also proof that no marriage license was ever issued to Virgil Brown in Marion County, and no suit for divorce was ever filed in that county by Virgil Brown against plaintiff, Winnie Brown. Appellant then insists that that evidence, together with all reasonable inferences to be drawn therefrom, was sufficient of itself to require submission to the jury of the issue whether or not the first marriage had been dissolved by a divorce decree prior to the second marriage. Citing Johnson v. Phillips Petroleum Company, Tex.Civ.App., 93 S.W.2d 556, 558, and many others, announcing the familiar rule that: “It is settled law that it is reversible error for the court to direct a verdict, ‘if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.’ ”

In reply to that contention, counsel for appellees submit this argument, with citation of further testimony shown in the record:

“It is submitted that plaintiff in error does not rebut the presumption in question by mere guesswork. Such evidence standing alone does not negative the dissolution of her marriage with Virgil Brown. Moreover, placing Virgil in Marion County for some six years prior to his marriage with Emma, and showing no divorce granted in Marion County, certainly does not negative the idea that Virgil divorced Winnie before he came to Marion County. He had some three years after he parted from Winnie' (plaintiff) within which to secure a divorce either in Louisiana or in some other county in Texas. Add to this also the circumstance thát divorce was talked by Virgil at the very time he ran Winnie off, and the further circumstance that Winnie admitted that after Virgil left her she was ‘courting David Shelby and trying to marry him’ and that she ‘would still be living with David Shelby if he had not had some trouble and ran off, because they were fixing to get married’, and the further circumstance that Virgil first showed up in Marion County with a wife named Ella, and we find this record, not only not rebutting’ this presumption of divorce from plaintiff, but actually reinforcing such presumption. Plaintiff didn’t testify that she was fixing to divorce Virgil and marry David Shelby; she testified she was living with Shelby and was fixing to marry him. She must have had some idea and conviction herself that Virgil had obtained a divorce from her or she would not have been planning to marry Shelby. Such testimony on the part of plaintiff is tantamount to a positive admission that she knew that Virgil had divorced her.”

After a careful consideration of the evidence shown in the record, we have reached the conclusion that there is no merit in the assignments now under discussion. For not only was the testimony of defendant, Emma Johnson, uncontradicted by any other witness, but it was fully corroborated by that of several disinterested witnesses, in every material respect. And the evidence introduced by plaintiff was wholly insufficient as a matter of law, to overcome the presumption that her marriage to Virgil Brown had been legally dissolved before his marriage to defendant, Emma Johnson. 41 Tex.Jur., par. 176, page 947, and decision there noted.

Moreover, the defenses of five and ten year limitation urged by the several defendants and interveners were conclusively established by the evidence, even if it appears that plaintiff was never divorced from Virgil Brown and that therefore she acquired a community interest of one-half of the land, as a cotenant with Emma Johnson; and for that further reason the court did not err in instructing a verdict in favor of the defendants and interveners.

For even if such cotenancy was created, plaintiff never knew of it or asserted any claim thereunder, until about the time she instituted this suit in the year 1937, which was some twenty years after it accrued. Nor did Emma Johnson have either actual or constructive notice of any such claim by plaintiff prior to the institution of the suit. Her open, peaceable, notorious and adverse possession of the land, using and enjoying the same, and paying taxes thereon, with claim of title to the fee, evidenced particularly by the execution by herself and husband, Will Johnson, of an oil and gas lease on the land in the year 1919, which was duly recorded in the county where the land was situated, was sufficient to set in motion these statutes of limitation at the date of the lease, at all events, which was some seventeen years prior to the institution of this suit by plaintiff.

Vernon’s Annotated Texas Civil Statutes, Arts. 5509 and 5510; Mainwarring v. Templeman, 51 Tex. 205; Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137; 11 Tex.Jur., secs. 27 and 28, pp. 441 and 445, secs. 43 and 44, pp. 471 and 473.

From the foregoing, it follows that all assignments of error must be overruled, and the judgment of the trial court must be affirmed, and it is so ordered.


text:
    THOMASON v. VEAL et al.
    No. 5194.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1940.
    Rehearing Denied Nov. 4, 1940.

      Allison & Gordon, of Levelland, and Crenshaw, Dupree & Milam, of Lubbock, for appellant.
    H. S. Garrett, of Fort Worth, and Bradley & Wilson, of Lubbock, for appellee Texas Co.
    Geo. S. Berry and Robert Howard, both of Lubbock, for appellees Geo. T. Veal and others.
   STOKES, Justice.

This is an action of trespass to try title filed by appellant, Claude A. Thomason, against the appellees, George T. Veal and his wife, Minnie Slaughter Veal, R. L. Slaughter, Jr., and. his wife, Sue Alice Slaughter, R. L. Slaughter, Jr. being the sole surviving heir at law of Bob Slaughter, deceased, and The Texas Company, a corporation, to recover the title and possession of tract No. 68 of the Bob Slaughter Block in Hockley County.

The Texas Company, on March 19, 1938, filed its. original answer, and on March 22, 1939, it filed a suggestion of the absence of necessary parties in which it disclosed that various other persons were interested in the subject matter of the suit and that they owned and were vested with valuable and substantial rights, titles and interests in the land involved. The names and counties of the residence of eleven persons who it alleged to be such owners were set out and it alleged that like information with respect to other like parties could readily be obtained from the deed records o.f Hockley County. A hearing upon this suggestion of the absence of essential and necessary parties was held on the 19th of September, 1939, and at the conclusion of such hearing the court sustained the motion that it take no further action in the case than to order and- require that appellant make parties to the suit all those who were interested in the unitized lease, which was the subject matter of the suit, and, therefore, necessary parties. The court indicated a willingness to continue the case in order to afford appellant time and opportunity to bring in such parties, but appellant declined to do so and the court thereupon dismissed the cause of action. Appellant duly excepted to the action of the court in dismissing the case and has perfected an appeal therefrom.

The record shows that on the 14th of March, 1929, Bob Slaughter conveyed to appellant the north 80 acres of tract No. 68 in the Bob Slaughter Block in Hockley County, and, as part of the purchase price therefor, appellant executed a note in the sum of $480, to secure the payment of which he executed a deed of trust in which R. L. Slaughter, Jr., was named as the trustee. On the 7th of December, 1933, appellant purchased from George T. Veal and his wife, Minnie Slaughter Veal, the south 117.4 acres of tract No. 68 and, as part of the consideration, he executed ten notes in the sum of $259.56 each. To secure the payment of these latter notes appellant executed a deed of trust in which A. J. Richards was named as trustee. Upon default in the payment of some of the notes the original trustees in the deeds of trust resigned and A. D. Forehand was appointed substitute trustee in both deeds of trust. Appellant alleged that on the 3d of February, 1936, Forehand, as trustee, ■purported to sell the land under the power of sale contained in the deeds of trust and that appellees, George T. Veal and wife, Minnie Slaughter Veal, became the purchasers. Appellant alleged that the sale was void and the trustee’s deed executed by Forehand after the sale, purporting to convey the land to the purchasers, was ineffective to pass the title because the trustee was not duly and legally appointed by the owners and holders of the notes; that no notices of the sale were posted as provided in the deeds of trust, and that Bob Slaughter, during his lifetime, acting for himself and on behalf of the holders of the notes, which he alleged had been acquired by other parties, made an agreement with appellant that the holders of the notes would accept in full payment thereof such an amount as would be loaned to appellant by the Federal Land Bank of Houston, and that he had made application for such loan, the land had been appraised, and the Federal Land Bank and Land Bank Commissioner had approved a loan in the total sum of $3,600.

The record further shows that, on the 26th of February, 1936, after purchasing the land at the trustee’s sale, appellees, George T. Veal and his wife, Minnie Slaughter Veal, executed and delivered to appellee, The Texas Company, an oil and gas lease on Tract No. 68 and a number of other tracts in the Bob Slaughter Block in Hockley County, aggregating 2,025 acres. The lease was what is designated by the parties as a unitized lease, sometimes referred to as a community lease,, and was one of a large number of similar' leases procured by The Texas Company in the Bob Slaughter Block from the various owners comprising in the aggregate something over 6,000 acres, presumably in a solid block. In addition to the usual provisions of oil and gas leases, the lease in question contained the following provision: “It is agreed and covenanted that each lessor in said similar lease covering land in said unitized block will participate in the royalty herein provided from oil, gas or other minerals produced from this land if, when and as produced and sold, in the exact proportion as the individual royalty owner’s interest in any tract bears to the aggregate number of acres still held by lessee, its successors or assigns under lease in the unitized block, at the time of production. For example: If at any time oil or gas or other minerals is produced from said land, this lessor or any other party executing a similar lease on land covered by said block to lessee herein, should own a 100-acre royalty interest and lessee, its successors or assigns, holds under lease in the unitized block 6,000 acres, then the lessor herein or lessor in other leases shall be entitled to 100/6000ths of the one-eighth or other royalty provided for in this lease. For the purpose of operation and development it is intended that this lease and other similar leases upon land in the unitized block shall be treated as one lease.”

Each of the other leases procured and held by The Texas Company contained the same provision, the effect of which, together with other provisions of the leases, was to invest all of the lessors with the right to participate in any royalty from oil or other minerals that may be produced ■by the lessee on any tract or tracts included in the unitized block. On account of this arrangement among all of the lessors, it is contended by the appellees that each and all of the others owned an interest in tract No. 68, the land sued for by 'appellants, and that they, therefore, were necessary and essential parties to appellant’s suit.

The case is presented here upon a single assignment of error in which appellant asserts that the trial court erred in dismissing the cause of action for the reason that the other mineral and royalty owners ha the unitized block were not necessary or indispensable parties to the suit and if they were merely proper parties thereto, appellees had waived their right to complain of their nonjoinder by filing their answers to the merits of the case. Ap-pellees, on the other hand, contend that the various lessors and other royalty holders in the unitized block are necessary parties to the suit because they have a direct interest in the land involved and such interest will necessarily be affected by any judgment that may be rendered. They contend, further, that, since the various lessors in the unitized block and others who had acquired royalty interests from them have a direct and material interest in tract No. 68 of the Bob Slaughter Block and in the rights, titles, estates and privileges granted by the lease on tract No. 68 and, since appellant seeks in his suit to annul and destroy such title and interest, the other lessors are necessary parties.

Considerable discussion is indulged in by both parties to the appeal of the question of whether or not the cause is an action of trespass to try title or a suit in equity to cancel the trustee’s deed to Veal and wife and the oil and gas lease held by The Texas Company. The first portion of appellant’s petition is in the ordinary form of trespass to try title. The second count sets out the facts which we have detailed concerning the purchase by appellant of the land involved, the deeds of trust and sale thereunder by the substitute trustee and allegations upon which appellant contends the trustee’s sale and the deed executed by him to the purchasers are void. In the ninth paragraph of the petition,which immediately precedes the prayer, appellant alleges that all of the defendants are claiming some right, title and interest in and to all of the land, but that such interests are based upon the trusteee’s sale and are void and of no force or effect.

We think it matters little whether the suit be denominated an action of trespass to try title or an equitable suit to cancel the trustee’s deed and the oil and gas lease. Under the blended system of pleading prevailing in Texas, the allegations contained in the second count of the petition were proper even in an action of trespass to try title. Having made the allegations, appellant was under the duty of proving them and, regardless of what may be thought as to the technical nature or character of the action, the issues, under our system of pleading, are the same.

Getting down to the essence and controlling issue in the case, that is, whether or not the lessors and owners of land in the unitized block other than Veal and wife are necessary parties to the suit, it seems to be conceded by all parties that, if the effect of the provisions of the oil and gas lease executed by Veal and wife to The Texas Company was to invest such other lessors with an interest in the land here involved, the other owners and lessors are necessary parties to the suit.

If these other owners procured an interest in Tract No. 68, it was through the provisions of the oil and gas lease. That instrument, in all of its features except the provisions for unitization, is in the form ordinarily in use in this jurisdiction. Its first clause provides that the lessor (whether one or more), in consideration of $1.00 in hand paid and of the covenants and agreements of the lessee, grants, leases and lets the land exclusively unto the lessee, for the purpose of testing by any method for formations or structures and prospecting and drilling for, mining, and producing oil and gas, laying pipe lines, building tanks, storing oil and water resulting from operations thereunder, and building powers, stations, etc., for the purpose of taking care of, treating and transporting oil and gas. The second clause makes provision for the term of the lease to extend and remain in force for ten years and as long thereafter as oil or gas is produced from the land. The third clause provides for the royalties that shall be paid to the lessor in the event of the discovery of oil or gas, and is to the effect that the lessor reserves, for the benefit of himself and other lessors executing similar leases in the unitized block, (a) on oil, one-eighth of that produced and saved from the land, the same to be delivered’ at the wells or to the credit of the lessor in the pipe line to which the wells may be connected. This clause provides, however, that the lessee may from time to time purchase such royalty oil, paying therefor the market price at the wells currently prevailing on the day it is run into the pipe line or storage tanks; and (b) on gas, including casing-head gas, produced from the land and sold or used off the land or in the manufacture of gasoline or other products, the market value at the wells of one-eighth of the gas so sold or used. It will be- observed that the effect of this clause is that the lessors, Veal and wife, reserve for the benefit of themselves and other lessors executing similar leases, one-eighth of the oil produced and saved from the land covered by their lease, that is, tract No. 68. It is well to note just here that the one-eighth of the oil produced and saved is not reserved to the lessor and the other lease holders, but to the lessor ■only, which reservation is for the benefit of the lessor and other lessors executing similar leases. The beneficial ownership of, or title to, the oil thus reserved, therefore, is not, by that provision of the lease, placed in the other lessors but is reserved to the lessors in this particular lease for the benefit of themselves and the other lessors. The benefit to the other lessors is not expressed in this clause of the lease and, therefore, other clauses therein must be looked to for its ascertainment. This third clause further provides that the entire one-eighth of the oil reserved shall be delivered at the wells or to the credit of the lessor in the pipe line to which the wells may be connected. These provisions of the lease impel the conclusion that if oil should be discovered on the land, the lessee must deliver one-eighth of it in kind to Veal and wife, either at the well or in a pipe line to which the well may be connected. When it is produced, therefore, according to the terms of the lease, the royalty oil still belongs to these lessors.

The manner in which the other lessors in the unitized block are to participate in the royalty thus produced and delivered to the lessors in this lease is provided in clause 4 (b) of the lease and is as follows: “The lessors named in this agreement and lease do agree with the owners and lessors of all the numbered tracts included in the unitized block of tracts, * * * that each lessor in said similar lease covering land in said unitized block will participate in the royalty herein provided from oil, gas or other minerals produced from this land if, when and as produced and sold.”

Their interests are to be in the exact proportion as the individual royalty owner’s interest in any tract bears to the aggregate number of acres still held by the lessee in the unitized block at the time of production.

From this analysis of the quoted portions of the lease it will be seen that the oil royalty is retained by Veal and wife and that the other lessors in the .unitized block are to participate therein only if produced and sold, as produced and sold, and when produced and sold. No dominion over the oil royalty itself, either while in place or after being produced, is at any time granted to or placed in any of the other lessors in the unitized block. Veal and wife reserved the actual commodity to themselves and they hold absolute title to it and dominion over it until it is sold. Then, and then only, do the rights of the other lessors accrue. The rights of the other lessors not accruing until after the oil has been sold by Veal and wife and after they have received the money or consideration therefor and passed title to the purchasers, it follows as a necessary sequence that the rights of the other lessors in the unitized block, according to the terms of the lease, can attach only to the money or consideration which is received by the lessors, Veal and wife, for the royalty oil. This impels the conclusion that the other lessors in the unitized block did not acquire any interest in the land by or through the terms of the oil and gas lease executed by Veal and wife.

It has many times been held by the courts of this State that those who are necessary parties to a suit are such persons as have or claim a direct interest in the object and subject matter of the suit and whose interests will necessarily be affected by any judgment that may be rendered therein. Such persons are not only proper parties but are necessary and indispensable parties, plaintiff or defendant. Cook v. Pollard, 70 Tex. 723, 8 S.W. 512; Fischer v. Rio Tire Co., Tex.Com.App., 65 S.W.2d 751, 757.

In discussing this matter of necessary parties, the Supreme Court in the Fischer case said: “It is universally acknowledged that necessary or indispensable parties includes all persons who have an interest in the subject-matter of the suit, of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such condition that its final determination may be wholly inconsistent with equity and good conscience.”

It is settled in Texas by a number of eminent decisions that an oil royalty clause in a lease which provides that the royalty is payable in kind constitutes the reservation of an interest in land. Since the decision by our Supreme Court in the case of Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566, it has also been settled law in this State that the lessee in an oil and gas lease, by virtue of its provisions of lease, grant and sale, becomes the owner of a corporeal defeasible estate in the land and that his interest is taxable as real property. Hager v. Stakes, 116 Tex. 453, 294 S.W. 835; Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021; Davis v. Atlantic Oil Producing Co., 5 Cir., 87 F.2d 75; Cates v. Greene, Tex.Civ.App., 114 S.W.2d 592.

In Sheffield v. Hogg, supra [124 Tex. 290, 77 S.W.2d 1024], the Supreme Court said: “Sound principle, supported by the highest authority, goes further and compels us to accede to the proposition that dealing with oil and gas or dealing with solids in place, like sulphur, lignite, salt, coal, or' lime, the lessor owning the entire fee-simple title to the land, and his assigns, who have been careful to secure to themselves * * * the right to a portion of the proceeds or profits derived from the lessee’s * * *' authorized sale of the minerals, throughout the duration of a determinable fee, * * * have and own a fee-simple interest in land, or at least have a right belonging or appertaining to the horizontal strata of the land in which the minerals are embedded [authorities omitted]. We therefore hold that all the property interests of ascertainable value, secured to the lessors or their assigns under the Hogg-Hamman lease, are subject to taxation as real estate in the' county wherein the land lies, as adjudged by the district court.”

The lease under consideration in the Sheffield case provided that the royalty on sulphur, if produced, should be $1.00 per ton produced and saved from the land and, in view of the quoted language of Justice Greenwood, considerable speculation has arisen over the question of whether or not the court intended to hold that an agreement in a lease whereby the lessee agrees to pay a stipulated sum of money for each unit of production, a possessory or corporeal estate in some portion of the mineral in place is retained. As we have stated, the lease under consideration in that case provided that the royalty on sul-phur should be $1.00 per ton and the court held that all the property interests “of ascertainable value” secured to the lessors were subject to taxation as real property. The statement of the case does not reveal that any sulphur or other mineral, the royalty upon which was to be payable in money, had been discovered or was being produced, and it is not clear that the court intended to include in the term “ascertainable value” any of such minerals. If they had not been discovered and were not being produced, it could not have been known whether they were present in the land or not. If they were not present in the land or, if so, their presence was not known, then obviously they were not of ascertainable value. It cannot be said with certainty, therefore, that the court was considering royalties that were payable only in money. Moreover, it may be well to observe that the subject-matter of that suit was the potential values of minerals not yet produced and the question before the court was whether or not they were taxable as real estate.

Whatever may be the substance of the holding in the Sheffield and other cases, they do not, in our opinion, control the question involved in the instant case. Even if it must be said that the retention or reservation of royalties in oil productipn which consist of the value thereof after such royalties in kind have been produced and disposed of under power of sale given to the lessee in the lease are beneficial interests and corporeal possessory rights in land, which we do not concede is impelled by the expressions of the court in the Sheffield case, it would not necessarily follow that the other lessors in the unitized block involved in the instant case had, by the terms of the lease here being considered, procured an interest in tract No. 68 of the Slaughter Block. The lease here involved does not retain any oil, gas or other interests as the property of those other lessors. They had never owned, nor did they acquire any interest whatever in the corpus of the oil itself nor in any other minerals. The title to, and complete dominion over, the royalty portion of any such production was held and maintained at all times by the lessors, Veal and wife. It is true the provision is to the effect that they retained it for the benefit of themselves and the other lessors, but it was -retained in them, nevertheless, and never transferred to, set over or vested in the other owners and lessors in the unitized block. The effect of the provisions of the lease is that the royalty, so long as it remained in its original state as oil, should belong to the lessors and be delivered to them at the wells or to their credit in the pipe lines to which the wells may be connected. Up to and even beyond that point the other lessors had no interest therein. The lease provides that if, when and as the royalty portions of the products were produced and sold, and then only, should the other lessors in the unitized block participate in it. The conclusion is inescapable therefore that, whatever may have been held by the courts with reference to royalties in kind or' in money being- a portion of the real estate, it is certain that the lease here involved did not at any time invest the other lessors in the unitized block with any interest whatever in the lands leased to The Texas Company by appellees, Veal and wife.

What we have said demonstrates, we think, that the other lessors in the unitized block are not persons who have or ca'n claim a direct interest in the object and subject matter of the suit nor that their interests would necessarily be affected by any judgment that may be rendered by the court in so far as the subject matter of the litigation is concerned. They are, therefore, not necessary parties to the litigation and it follows that, in our opinion, the court below erred in dismissing appellant’s suit. The judgment will, therefore, be reversed and the cause remanded.


author: MURRAY, Justice.

text:
    WRIGHT v. MATTHEWS et al.
    No. 10866.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 9, 1940.
    Rehearing Denied Nov. 6, 1940.

      McCombs & Andress, of Dallas, for appellant.
    Spears, Conger, Baskin & Spears, of San Antonio, for appellees.
   MURRAY, Justice.

This is the second appeal of this case. Our opinion on the first appeal is to be found in 130 S.W.2d 413.

This suit was instituted by Frank W. Matthews, guardian of Genoa C. McGin-ley, non compos mentis, against Kathryn Hughes and her husband, Foy T. Hughes, Benjamin F. Wright, and John P. Forrest, seeking to set aside a deed purportedly executed by Genoa C. McGinley to Kathryn Hughes, conveying Lot 14, Block 66, New City Block 3334, of the City of San Antonio, dated July 10, 1937, and further seeking to cancel a deed of trust lien securing a note in the principal sum of $4,250 held by Benjamin F. Wright, and a second deed of trust lien, securing the payment of a note in the principal sum of $475, held by John P. Forrest. Mrs. McGinley had been adjudged insane after she had signed the deed to Kathryn Hughes.

The cause was submitted to a jury upon the following sole issue: “Do you find from a preponderance of the evidence, if any, that at the time Genoa C. McGinley executed the deed dated July 10, 1937, to Kathryn Hughes, wife of Foy T. Hughes covering the property involved in this suit that the said Genoa C. McGinley did not have sufficient mental capacity to execute said deed?”

The jury answered this issue that Genoa C. McGinley did not have sufficient mental capacity to execute said deed. Based upon this verdict and other findings made by the trial court, judgment was rendered as follows:

“(1) Cancelling, setting aside and holding for naught the deed dated July 10, 1937, from Genoa C. McGinley to Kathryn Hughes.
“(2) Cancelling, setting aside and holding for naught the deed of trust executed on July 22, 1937, by Kathryn Hughes and husband to Nowlin Randolph, as trustee for the said Benjamin F. Wright.
“(3) Cancelling, setting aside and holding for naught the deed of trust executed on August 18, 1937, by Kathryn Hughes and Foy T. Hughes, conveying said Lot 14 to John P. Forrest, to secure a note in the sum of $975, insofar as the sam.e affects the rights of Genoa C.’ McGinley. Also canceling power of attorney executed by Kathryn and Foy T. Hughes to John P. Forrest.
“(4) The judgment based upon the condition that Frank W. Matthews, as guardian, pay into the registry of the court the sum of $232, to reimburse Kathryn and Foy T. Hughes for taxes paid by them, and the sum of $175 to reimburse the Hughes for the consideration paid.
“(5) Granting personal judgment in favor of Benjamin F. Wright against Kathryn and Foy T. Hughes for the amount of principal and interest due on the Wright note, but allowing no foreclosure.
“(6) Discharging C. N. Wideman as receiver of the property.”

From this judgment Benjamin F. Wright alone has prosecuted this appeal.

Appellant contends by his first three propositions that the answer, of the jury should be set aside because:

First: There is no evidence to support it.

Second: There is insufficient evidence to support it.

Third: That it is so contrary to the overwhelming preponderance of the evidence as to demonstrate that it is clearly wrong.

The deed was dated July 10, 1937, and acknowledged on July 12, 1937, by Genoa C. McGinley. The jury’s answer to the only special issue submitted to them found that Genoa C. McGinley at the time she executed the deed to Kathryn Hughes did not have sufficient mental capacity to execute said deed.

We are of the opinion that the evidence is sufficient to support this finding. The appellees placed four witnesses 'on the stand who testified concerning the sanity of Genoa C. McGinley.. The first witness to testify on this subject was Viola Strickland. She testified that she became acquainted with Genoa C. McGinley in about 1935, and that she had known her for about two years prior to the time the deed was signed. She worked in Fottrell’s beer place and it was there she got acquainted with Catherine (Genoa C. McGinley). Catherine came to Fottrell’s place quite often. Fottrell had a tourist camp in conjunction with his beer business and ultimately Catherine moved over to the tourist camp and lived in the same house with the witness. The witness lived in' the same house, or at least in the same tourist camp, with Catherine for about one and one-half years and saw her every day. Catherine drank beer and liquor and this drinking habit increased from time to time. She had known Catherine to buy two or three pints of liquor in one day. She noticed peculiar conduct by Catherine for about a month before the signing of the deed. In this connection she testified as follows: “Q. Well, now, what, if anything, unusual in her conduct did you notice at that time? A. Well, during the last three weeks I knew Catherine, one time she disappeared, and was gone about three days; and when she came back, I was on duty, it was in the night sometime, the evening was quiet, and she came in the door, and she looked very unsteady and I thought she was intoxicated; and she came in and said, ‘Somebody stole my check,’ and started to talk to all the customers. It was my duty to quiet her if I could, but I couldn’t, and I called Mr. Fottrell and told him Catherine was sick; and she went home, but instead of going home, she went over to another cabin, where she lived previously, and she was crying by herself, and went over to the other side of town— * * *

“Well, she stayed in bed two or three days, wouldn’t eat, wouldn’t get up to eat, wouldn’t dress; we were bringing her food over to her; and finally I taken her back over to our cabin, where the girls lived. And it seemed her husband had been killed, or something, and she had a flag, and she got the flag out, and all her papers, and she would sit for days and rock and talk and talk about her husband; and one time she wanted to go about half a block over to the bar place to get a drink, and she got lost on the way over, didn’t remember anything; and I taken her one day into the cafe to eat, and I couldn’t do anything with her' in there, nobody could do anything with her, and I took her back home, and she told me to call up her mother, but I never; she just sat and rocked, very different from the way she had acted; and she wasn’t drinking at that time, the last three weeks I saw Catherine she wouldn’t drink anything.”

The next witness was A. J. Fottrell. He testified that he had known Genoa C. (Catherine) McGinley for about two years before July 10, 1937. She used to buy drinks at his place of business which was located at 219 Hot Wells Boulevard. He described his business as follows: “I had a restaurant and bar joined, and tourist camp.” She finally came and rented a cabin from him. For about eight months she was at his place of business every day. Prior to the time she moved to his place she would come here in a taxicab and stay two or three hours, drinking several bottles of beer, during which time she would keep the taxicab waiting for her. She drank a great deal during the time he' knew her. With reference to her unusual conduct he testified, as follows:

“Q.- Now, Mr. Fottrell, during the time you knew Mrs. McGinley, I will ask you to state whether or not you noticed anything unusual in her conduct? A. Towards the last I did, quite a bit.
“Q. Now, how do you mean ‘towards the last,’ — over about what period of time? A. Well, at times she would be talking about sleeping with a dead man, stuff like that; of course, she would have spells of that kind, and we would' have to sort of quiet her down, you know, and she would be all right for a while.
“Q. Now, approximately, how long before July 10, 1937, was it that you first noticed those spells? A. Well, I guess about a month.
“Q. About a month? A. Yes, sir.
“Q. Now, just what would she do and what would be her appearance when talking about sleeping with dead men? A. Well, she would cry and talk about sleeping with dead people; and she one day came up to the place and wanted to take some soda water back with her, and couldn’t find her way back.
“Q. She couldn’t find her way back? A. No, sir, she didn’t know where she lived, didn’t know where her cabin was she lived in, didn’t know which way to go. So I called Dr. Goodson then to come out to see her. Dr. Goodson came out,— * * *
“So I called Dr. Goodson — I think it was Dr. Goodson — I called him over the phone and had him come out. Well, the cabin was in the back area at the time; when we got out there, we seen she was gone; I went over there to the house, and they said she didn’t want to — she was gone — * * *
“Q. Now, did you notice anything else unusual in her conduct besides this conduct that you have just spoken about, when she was talking about sleeping with dead men? A. Well, that is all, I didn’t ask, try to find out.
“Q. Did you ever notice her crying, anything like that? A. Oh, she cried there.
“Q. Wring her hands ? A. Oh, yes.
“Q. How often would that be? A. Well, that was towards the last I am speaking of — about a month before.
“Q. Would she say anything while crying and wringing her hands? A. Well, she would talk about dead people, people burning up, and things of that kind, and sleeping with them.
“Q. Now, Mr. Fottrell, did you ever have any conversation with Mrs. McGinley relative to any property that she had? A. Oh, yes — yes, sir. She wanted to give it to me.
“Q. Now, just state what the nature of the conversation and those transactions were? A. Well, she wanted to give me this property, and I told her, I said, ‘No, don’t do that, I can’t do that, I have got a family, and I don’t want to mess my family up.’
“Q. Now, what property did she have reference to ? * A. A place over on McKinley, a place — I don’t know, I didn’t pay any attention. And I said, ‘The right thing to do is to go up there and see Mr. Riley Wyatt over at the Stewart Title Company, and deed it over to your mother, and that is the right thing to do.’ She said all right. Well, after that I said we will go up the next morning; she said all right. The next morning I went over to get her to go, and she said, T don’t feel like going,’ and I went on about my business.”

Estella Seibring testified to similar facts as those related by Viola Strickland and A. J. Fottrell.

Doctor T. E. Christian, Assistant County Health Officer of Bexar County, testified to facts showing himself to be well qualified as an expert to give an opinion as to the sanity or' insanity of a person. He examined Genoa C. McGinley as to her sanity during the latter part of July, 1937, and several days after she had signed the deed in question. This examination covered a period of about ten days. He expressed the opinion that she was suffering from dementia praecox, a form of insanity, and had not had a lucid interval for more than twelve months prior to the time he examined her.

Flugh H. Batchelder, a witness for appellant, testified that he was a notary public in and for Bexar County and that he took the acknowledgment of Genoa C. Mc-Ginley to the deed in question. He also took an affidavit from her as to her marital relations. He had merely met her before the occasion on which she signed the deed. He explained both the deed and the affidavit to her at the time she signed them. This took something like twenty minutes. The instruments were signed in a car parked on the street near St. Mary’s Catholic Church in the City of San Antonio. During his dealings with Genoa C. McGin-ley he noticed nothing unusual in her conduct.

Where an attack is made upon the answer of a jury, such as is here presented, the well-established rule is that the court is required, “to look most favorably upon the testimony tending to support the jury’s findings, and under that test to uphold those findings if they appear to be founded upon material and substantial evidence; unless, indeed, the evidence to the contrary preponderates so overwhelmingly that no reasonable mind could disregard the one and give effect to the other, or reconcile the two so as to support the jury’s findings.” Moore v. Marines, Tex.Civ.App., 269 S.W. 825, 826.

When this rule is applied to the testimony above set forth, no other conclusion can be reached than that the answer of the jury was sufficiently supported by the evidence, .and that it was not contrary to the overwhelming preponderance of the evidence so as to indicate that it was clearly wrong.

Appellant next contends that as mortgagee he was entitled to urge all defenses and to assert all rights that his mortgagor, Kathryn Hughes, could have asserted, and that he was not permitted to do this. Appellant requested that four special issues be submitted to the jury, which issues were by the court rejected. These issues inquired whether or not Kathryn Hughes acted (1) in good faith, (2) without fraud or imposition, (3) for a valuable consideration, (4) without notice of Mrs. McGinley’s infirmity. Had these issues been submitted to the jury and answers favorable to appellant returned, they would not have prevented the setting aside of the deed from Mrs. McGinley to Kathryn Hughes, but would have only required that Kathryn Hughes be first equitably restored to her original position. Art. 5561a, Vernon’s Ann.Tex.Civ.Stats. This the judgment herein does, and therefore appellant is not in any position to complain as he is unable to show that he has been injured in any way.

Appellant’s fifth, sixth and seventh propositions are overruled for the same reasons as his fourth.

Appellant’s eighth, ninth and tenth propositions are without merit and are overruled. He does not show that he has been injured by any of the things complained of in these propositions.

Appellant’s eleventh proposition is sustained and the amount of the judgment against Kathryn Hughes and Foy T. Hughes will be changed from the amount of $2,629.02 as of May 21, 1938, to the principal sum of $3,094.89, together with interest at the rate of 10%, from March 2, 1940, until paid.

Appellant contends by his twelfth proposition that the burden of proof was upon the guardian of Mrs. McGinley to offer evidence sufficient to show what the consideration of the deed was and to secure from the jury a finding to this effect before he would' be entitled to a rescission of the deed. The deed recited a consideration of ten dollars and other valuable consideration. The judgment herein required Frank W. Matthews, guardian, to pay into the registry of the court for the use and benefit of Kathryn Hughes and Foy T. Hughes the sum of $245.45, and the further sum of $175. Appellant contends, however, that there is no evidence to show that these sums embrace all the consideration paid- to Mrs. McGinley by Kathryn and Foy T. Hughes. If there was other consideration paid, Kathryn and Foy T. Hughes would be the proper parties to complain and not Benjamin F. Wright, the only appellant herein. This assignment will be overruled.

We overrule appellant’s thirteenth proposition as he is not protected under the provisions of Art. 5561a, Vernon’s Annotated Texas Civil Statutes, as held in our former opinion in this case, reported in 130 S.W.2d 413.

The judgment is affirmed.


author: PRICE, Chief Justice.

text:
    DOWNING v. SLATTERY et al.
    No. 3983.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 26, 1940.
    Rehearing Denied Oct. 24, 1940.
    Mobley, Roberts & Lockett, of Corpus Christi, and Lloyd & Lloyd, of Alice, for appellant.
    J. Hodge Thompson and W. O. Slattery, both of Corpus Christi, for appellee.
   PRICE, Chief Justice.

This is an appeal by Pat Downing, defendant in the trial court, from the order of the District Court of Nueces County overruling his plea of privilege to be sued in Du-val County. Appellee Slattery, hereinafter called appellee, on the 17th day of June, 1939, filed this suit against Norma Spencer, as defendant, in substance alleging that he was joint owner with Norma Spencer of a certain cafe business situated in Nueces County and the fixtures and equipment thereof; that said interest was an undivided one-half interest conveyed to him by Norma Spencer on June 6, 1939; at that time an agreement was entered into between them that said Norma Spencer should operate the business and they to share equally in the net proceeds; breach by her of this agreement was averred, and the appointment of a receiver was sought to sell and divide the proceeds between them. A receiver was appointed as prayed. The receiver thereafter sought from the court authority to sell the property. Shortly after the filing of this application Frank Lloyd, Esq., one of the present attorneys for appellant, filed a motion as amicus curiae, alleging that neither of the parties to the suit had any interest in the property involved, but that one Pat Downing, having purchased same on the 16th day of March, 1939, was the owner thereof, and that Pat Downing was a necessary party to the suit. This motion for leave to file the amicus curiae appearance does not on its face appear to have been filed at the instance of appellant Downing. No action seems to have been taken on this motion.

On August 11, 1939, plaintiff filed his first amended original petition making Pat Downing a party defendant. The petition as to defendant Downing averred that he was claiming some interest in the property, the nature of which claim was unknown to plaintiff. The prayer was that the property be sold, the proceeds disposed of in accordance with law, and for judgment against Downing divesting him of any claim now asserted or heretofore asserted in the property.

On August 31, 1939, appellant filed plea of privilege in stereotyped form claiming the right to have the venue of the suit changed to Duval County, where he resided.

September 7, 1939, plaintiff filed controverting affidavit. Exceptions to Article 1995, R.S.1925, Vernon’s Ann.Civ.St. art. 1995, were alleged to be under subdivisions 4, 10, 13 and 29a, respectively, of said ar-tide!. Appropriate facts were alleged under each of said subdivisions.

Appellant filed a reply to the controverting affidavit consisting of a general demurrer and general denial.

Hearing was had on September 3, 1939, and the court entered an order overruling the general demurrer as to the plea of privilege. On hearing the plea of privilege was in all things overruled by the court.

Under the undisputed evidence plaintiff and defendant Norma Spencer were at all relevant times residents of Nueces County, and defendant Downing of Duval County. The property in question at all relevant times was situated in Nueces County. In our opinion the evidence, if not undisputed on this point, at least justified the trial court in so finding.

Appellant asserts that the court erred in failing to sustain his plea on the following grounds:

(1)The evidence failed to disclose a cause of action against both defendants; (2)the pleadings of plaintiff were incorporated in the controverting affidavit and failed to disclose that there was jurisdiction in the court; (3) that the evidence failed to show any title in plaintiff to the property involved.

We are of the opinion that beyond any question subdivision 10 of Article 1995 authorizes the maintenance of this suit in Nueces County. In so far as the cause of action was asserted against appellant, it was for the recovery of personal property. This personal property was shown by the evidence to be located in Nueces County.

In the hearing on the issues raised by plea of privilege and controverting affidavit the venue facts alone are in issue. It is not a trial on the merits.

In a suit for the recovery of personal property the main and controlling venue fact is the location of the property in the county where venue is sought to be maintained. Southwest Nat. Bank v. Chapman, Tex.Civ.App., 266 S.W. 599; Hammond v. Clayton, Tex.Civ.App., 17 S.W.2d 95; Congleton v. Mundet & Son, Tex.Civ.App., 43 S.W.2d 1111; Pearson v. Black, Tex.Civ.App., 118 S.W.2d 829.

In our opinion thé matter as to the want - of jurisdiction of the court is for the trial on the merits. If the petition fails to state a cause of action or to' show jurisdiction it may be cured by amendment.

The judgment is affirmed.