author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    JOWERS v. STATE.
    No. 21170.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Rehearing Denied Dec. 18, 1940.

      Wolfe & Massie, of Corpus Christi, and L. D. Griffin, of Alice, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given a penitentiary sentence of two years in Kleberg County on a charge of receiving and concealing stolen property of the value of more than $50.

The property involved consists of seventeen joints of oil well pipe. It is shown by the record that this amount of secondhand pipe had been stolen from Humble Oil & Refining Company after it had been pulled from an abandoned oil well and stacked on the lease with fifty-one other joints of the same kind and character of pipe. It is alleged in the second count of the indictment that the appellant unlawfully and fraudulently received such property from a person whose name is unknown and that he fraudulently concealed it, said property having been acquired in such a manner that the acquisition of it comes within the meaning of the term theft, and that the said John Jowers then and there received and concealed said property knowing the same to have been so acquired.

The state relies upon circumstantial evidence for a conviction, and it is essential to a proper understanding of the various questions raised, including one attacking the sufficiency of the evidence, to summarize the evidence introduced. Appellant did not testify and it is our conclusion that the evidence which he did place before the jury but slightly contradicted any of the evidence relied on by the state.

At the time the sixty-eight joints of pipe were taken from the abandoned well they were stacked on a lease, measured and listed and were painted with a black paint especially used by the Humble Oil & Refining Company. These joints of pipe were seven-inch outside dimension, twenty-four pound, seamless pipe, threaded with eight rounds to the inch in what is known as “V” thread. This size and weight of pipe is common to the oil fields of this country, but the “V”-type, eight rounds of thread to the inch, has been superseded during the last ten or twelve years by a rounded thread, ten rounds to the inch. In that particular section of the state it was not a common thing to find pipe with this thread, so that none of the witnesses knew of or had seen any, other than that which belonged to the Humble.

On about May 15, 1939, the superintendent of the properties of the Humble Company in this district desired to move the pipe for use at another place, and when he sent for the same it was discovered that seventeen joints of the pipe were missing. They checked the pipe remaining on the ground against the list which had been placed in the inventory of properties and thereby determined the length of each joint that was missing. It is not essential here to give the length of each joint, but it will be sufficient to say that they varied from 19' 5" to 29' 3" in length. In only two instances do we find two joints of exactly the same length. The total length of the seventeen joints of pipe which were missing was 416 feet. Just how long the seventeen joints of casing had been missing when the fact was discovered was not known.

On about March 30, 1939, the appellant approached a dealer of second hand casing in Mirando City, Texas, more than 100 miles away, and proposed to sell him some seven inch casing. After some negotiation the purchaser agreed to buy. He went away and then came back with the casing loaded on a Ford truck with a party who claimed to be the owner and went under the same of Lee Cooper, who also represented himself to be in business with his brother under the firm name of Cooper & Cooper at Port Arthur, Texas. He also gave their street address. The pipe was sold and check made to Cooper & Cooper for $209.50, the sale price which was calculated at fifty cents per foot. The purchaser was asked to endorse his check so they could get it cashed and they did do so in a nearby town. The appellant was known to this purchaser, who was a witness in the case, with whom he had had other dealings, but the man by the name of Lee Cooper was unknown.

The evidence details considerable search for Lee Cooper and for the firm of which he claimed to be a member. They were not found at the street address given, nor in the town, and were unknown to the witnesses who testified; .

The sheriff of Nueces County, a representative of the Humble Company, and others making -a search for the lost property, visited Mirando City and called on the purchaser of this pipe who gave them the information that he had purchased 419'. of pipe from appellant on the 30th day of March and, upon comparing the list, found that they checked in size and kind and number of joints. The measurements were almost identical to that listed by the Humble Company as being missing, some of the joints varying but a few inches. All of this pipe, however, had been sold to a customer, who had used sixteen joints of it in a well. Upon going to the premises of this customer the representative of the Humble Company observed one joint of unused casing and identified it immediately. They, scraped some of the paint off of this pipe, placed it in an envelope and sealed it and then scraped some of the paint off of another joint of the stack from which it is claimed that these were taken. A chemical analysis showed the paint to be the same. The thread was the same. This constitutes the principal evidence upon which the witnesses based their testimony identifying the pipe that was purchased by the dealer in Mirando City from appellant.

It is shown.by other witnesses that some time prior to or about the date of the sale of the pipe by appellant he was in the vicinity of the Humble’s property in Kle-berg County, and loaded and hauled some drill stem for a party. At the time he sold the pipe the bookkeeper took the number of his truck, which proved to be one belonging to appellant.

There were other circumstances in the case connecting appellant with the possession and sale of the seventeen joints of pipe at Mirando City, and also to show his presence in the vicinity of the Humble property in Kleberg County, but the evidence upon which the witnesses testified identifying the pipe has been fairly stated. It is easy to conclude that the jury was warranted in returning a verdict under this evidence against appellant.

Appellant brings seventeen bills of exception, the first-of which complains that the appellant was forced to trial less than two full days after his arrest. The bill presented on the subject was refused by the court and was by him qualified. The court then prepared and filed in the record his own bill, to which appellant excepted, but we find no bystander’s bill to take the place of the one presented by the court. As presented, the court’s, bill shows no error.

Bill No. 2 complains of the action of the court in permitting the sheriff to testify that he knew Mr. O. A. Cook and knew his official position with the Humble Company; that he is field man out there for the Humble Company and that he had the pipe in question in his possession. This evidence is objected to on the ground that it was a conclusion of the witness and hearsay. Certainly the witness had a right to say that he knew Mr. Cook and, if he knew, he had a right to say that he knew his official position with the Humble Company. He had a right to state that he was field man for them. He may testify to the other facts if he knew them. The bill complains of more than one statement, but does not set out which one the objection relates to. It is, therefore, defective. •

Bills Nos. 3, 4 and 6 objecting to other testimony by the same witness are defective for the same reason. Branch’s Annotated Fenal Code, page 135, Sec. 211, and authorities there cited.

Bill No. 5 relating at length to the testimony of the same witness includes a great many statements made by him, some of which he undoubtedly had a right to make, and the objection does not point out the part complained of.

Bill No. 7 complains of the admission in evidence, over appellant’s objection, of testimony by T. J. Tilly to the effect that the pipe missing was seven-inch O. D. The objection was based upon the failure of the indictment to fully describe the pipe and to give the name by which it was commonly known. This is not necessary to the validity of the indictment. If the pipe had been thus described, it would have been incumbent upon the state to make the proof, but where the indictment does not go into so minute description of the article alleged, the state may, nevertheless, prove such description, particularly where, as in this case, it becomes necessary to identify the missing article, and the act of the state in so doing does not constitute a variance from the indictment. Branch’s Annotated Penal Code, page 1312, Sec. 2424. Also Sec. 498, page 256. Texas Jurisprudence, Vol. 41, page 114, Section 72, and authorities there discussed.

By bill of exception No. 8 complaint is made of the evidence of the witness T. J. Tilly to the effect that he listed the pipe from which it is claimed the stolen joints were taken on October 30, 1938. He further identified the list presented and from it checked those that were found missing on May 15, 1939. The objection is made on the ground that the record being nearly two years old is obsolete. Had the article in question been one of a perishable nature, or one which would in that period of time have materially changed its descriptive qualities, there would be something in the objection for consideration, but in view of the nature of the article in question we see no force to it whatsoever. The evidence is to the effect that it had been in possession of its owner and, that being true, the inventory would not be obsolete at any period of time within the life of the article.

By bill of exception No. 9 complaint is made of the introduction of the tally sheet showing the lengths, size and weight of the sixty-eight joints of pipe in question, the only variance from the evidence being based on the assertion that the other evidence shows the pipe to be twenty-six pound weight. We do not so understand the evidence, as it is specifically stated that the joint of pipe recovered was twenty-four pound weight per foot and is identical with that shown in the instrument.

Bill No. 10 raises several objections and we are unable under the rules to consider it.

Appellant’s bill of exception No. 11 copies and includes several excerpts from the testimony of Archie G. Long which embraces many different statements and this is all objected to. It cannot be said that it is all inadmissible and we are, therefore, unable to consider the bill.

Bill of exception No. 12 copies and sets out at length the testimony of Mr. Bynum. The objection then says that the form of the questions and the manner in which they were asked pertain to other and different transactions to that for which the defendant was being prosecuted at the time and were not germane to the issue in this case. We have read this evidence, much of which is not subject to any objection. The form of the questions complained about is not discussed and we are unable to understand just what appellant was objecting to. The bill, therefore, cannot be considered under the rules.

Bill No. 13 complains of the statement made by J. H. Arnette to the effect that he examined the contents of the two envelopes exhibited to him and that they were in the same condition as when he received them, except that they had been opened. The bill then sets out that these envelopes had written matter all over them which constituted ex parte statements; that they were hearsay and inflammatory and highly prejudicial to the rights of the defendant, and further that they were not shown to be the same identical envelopes and contained the same matter which the chemist said he analyzed, and that he did not state that he analyzed the contents of these envelopes; that they were not in the same condition as when the witness received them; that they had been opened and still are. We are unable to understand the application of these objections to the questions asked, as the bill does not contain sufficient information to permit the court to consider all of the objections raised.

Bill of exception No. 14 is like many of the others, heretofore discussed, fatally defective because it is duplicitous.

Bill No. 15 complains of the admission in evidence of an instrument in writing purporting to contain the statements made by appellant voluntarily before the grand jury. The bill does not contain this instrument or its contents or any part thereof. The attorney’s objection, however, is based on his claim that it was of and concerning a statement given before the grand jury in August, 1939, in connection with another and different 'transaction, and at a time when the grand jury did not indict appellant on the offense for which he was on trial. Further, the objection says that the statements in the instrument were very inflammatory and highly prejudicial to the rights of defendant. The court overruled the objections as made, and we are unable to say whether he was right or wrong in the absence of something in the bill showing just what the statement was that appellant was objecting to. There is nothing before this court for consideration.

In bill of exception No. 16 it is indicated that a discussion took place in the court room in the presence of the jury relative to the admission of the writing which purported to include statements made by appellant before the grand jury, at which time the prosecuting attorney is quoted as saying: “The grand jury did indict the defendant and they indicted him on a case exactly similar to this case, the same state of facts, the same pipe and the same charge.”

Objection was made to this statement, and the court instructed the jury not to consider anything that the lawyers were saying. We recognize the fact that such statement made . by the district attorney might have been injurious and highly improper, yet, we cannot write into a bill something which it does not contain, and there is nothing to give the circumstances under which it was uttered nor to negative the presumption that it was made in response to something that was said by appellant’s attorneys. The bill does nothing more than declare an error has been committed. It by no means places before us something which we are able to properly appraise.

Defendant’s bill of exception No. 17 complains of the introduction in evidence of a statement made by appellant to the grand jury as identified by the county attorney, who had been properly sworn as a witness. The bill does not purport to give the complete statement, and the portion introduced in evidence presents nothing harmful to appellant, but is rather an exculpatory statement voluntarily made by appellant and which, if true, would tend to exonerate him. This was harmless.

We find no error in any of the bills which we are able to consider.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant in his motion for a rehearing reasserts every complaint which he urged for a'reversal of this case on the original submission. We have again carefully reviewed the record without being convinced that we erred in our original opinion and we seeno need for entering upon a further discussion of the questions presented.

We are still of the opinion that the pipe in question was sufficiently identified by circumstances to justify the jury’s conclusion that the pipe recovered was the same pipe taken from Mr. Cook without his consent.

Appellant now contends that since he was charged in one count of the indictment with theft of the pipe in Kleberg County and in the second count with knowingly receiving and concealing the stolen pipe in Nueces County and the jury having acquitted him of the theft of the pipe, he could not legally be tried and convicted in Kleberg County for said offense because there was no proof that he was ever in Nueces County. Under the provisions of Art. 200, C.C.P., appellant could be prosecuted either in the county where the pipe was stolen or in any county through which it was carried by the thief or in the county where it was received and concealed. See Mathis v. State, 133 Tex.Cr.R. 367, 111 S.W.2d 252, and cases there cited. Consequently his contention is without merit.

We therefore' overruled the motion for a rehearing.

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.


source: Caselaw Access Project

author: CHRISTIAN, Judge.' GRAVES, Judge.

license: Public Domain

text:
    WILSON v. STATE.
    No. 21171.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Dec. 18, 1940.
    S. F. Hill, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.'

The offense is possession of marihuana; the punishment, confinement in the penitentiary for three years.

Officers searched appellant and found in his possession several marihuana cigarettes. • Testifying in his own behalf, appellant declared that he did not know he had the cigarettes in his pocket until they were discovered by the officers. Appellant introduced a witness who testified that he saw another party place the cigarettes in appellant’s pocket.

It appears from bill of exception No. 1 that Dallas Thrash, one of the searching officers, testified, over appellant’s objection to the effect that the search was made without a warrant and without a warrant of arrest, that he found several cigarettes in appellant’s pocket. It is observed that A. L. Plucker, one of the officers who participated in the arrest and search of appellant, testified without objection ori the part of appellant, in part, as follows: “We searched him (appellant) and found a package in his shirt pocket. It was wrapped in a little piece of Sunday funny paper. We taken it out and looked at it. It was cigarettes wrapped in brown paper. This was taken off the defendant. I did not see any Camel cigarettes on the person of the defendant. There was not anything else in his shirt. Marihuana is all there was.” Obviously the testimony of Mr. Plucker was substantially the same as that of Officer Thrash. Moreover, appellant admitted that the officers found the cigarettes in his possession. Under the circumstances, reversible error is not presented. We quote from 4 Texas Jurisprudence, 587, as follows:

“It is a general rule also that the admission of improper evidence .does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to, as where the accused voluntarily gave testimony substantially the same as that erroneously received over objection. For example, a judgment will not be reversed because of the admission of testimony of officers respecting facts ascertained upon an illegal search where the same facts were testified to by other witnesses or by the appellant himself.”

In support of the text many authorities are cited, among them being Machado v. State, 112 Tex.Cr.R. 538, 17 S.W.2d 1060; Spain v. State, 111 Tex.Cr.R. 552, 15 S.W.2d 646; Stockton v. State, 112 Tex.Cr.R. 188, 15 S.W.2d 640; and Shuffield v. State, Tex.Cr.App., 18 S.W.2d 640.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant insists that the indictment in this cause is defective in that it therein charges him with the possession of marijuana, when the statute, Art. 725b, Vernon's Ann.P.C., denounces the possession of marihuana; and we gather therefrom that the point herein involved is the fact that the statute spells the narcotic with an “h” while the indictment spells the narcotic with the letter “j”.

It is true that the statute employs the letter “h” in the spelling of the drug, and it is further true that the indictment herein employs the letter “j” in place of the letter “h”.

Webster’s International Dictionary gives the following spelling of this drug: “Marijuana, also marihuana.” We gather therefrom that this drug is spelled either way, and we are also of the opinion that these two methods of spelling this drug sound the same, and are idem sonans.

We think the further matters urged by appellant were properly disposed of in our original opinion, and the motion is overruled.


author: PRICE, Chief Justice.

text:
    BAUER v. BAUER.
    No. 4008.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1940.

      Phil D. Woodruff, of Houston, for appellant.
    W. B. Moss, of Sinton, and Seale & Wood, of Corpus Christi, for appellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of San Patricio County. Fritz J. Bauer, Jr., as plaintiff, sought to recover damages against William H. Bauer, defendant, .for an alleged assault and battery on the wife of said plaintiff. The trial was to a jury, special issues were submitted, and judgment entered that plaintiff recover the sum of one dollar. Judgment as to costs was in accordance with Article 2060, R.S.

Finding of the jury was that no actual damages were suffered by reason, of the assault and battery. Exemplary damages were found in the sum of $250.

There is no statement of facts and the appeal assigns error as to the court overruling a motion made by plaintiff to discharge the jury and declare a mistrial.

There is a recitation of the facts relating to this matter contained in the order of the court overruling the motion. No bills of exception appear in the record. Perhaps Subsection 4 of Article 2237, Vernon’s Statutes, is broad enough to give jurisdiction to review the alleged error.

From the recitals in the order overruling the motion it appeared on October 18, 1939, a jury was selected to try this case. The case was recessed to October 20th; this, with the consent and acquiescence of plaintiff. On October 19th another case was tried, which was an action involving an assault and battery. Several members of the jury already impaneled in this case were likewise impaneled in the case tried on the 19th. On the 20th of October the jury in this case, impaneled, as aforesaid, on the 18th, reported. Plaintiff then made his motion to declare a mistrial on the ground that eight members of the jury had on the day previous tried an assault and battery case where damages were sought. This motion was overruled by the court, and plaintiff excepted.

The parties, issues and attorneys in the case tried on the 19th were dissimilar to those in this case. Of course a party is entitled to a fair and impartial trial and to obtain this, a 'fair and impartial jury is requisite. If this right is imperiled by anything that occurred during the course of the trial it is in the power and is the duty of the trial judge to declare a mistrial and postpone the case or summons another jury. An infraction of this duty in this respect would constitute reversible error, we think.

It was with the express consent of plaintiff that the jury was impaneled on the 18th and excused until the 20th. These jurors were on the regular panel, and it is fair to assume, if their services were required by the court in the interim, they would be used as jurors. The fact that they had tried an assault and battery case during the same week would not present grounds for peremptory challenge. The cases were in all respects dissimilar. It does not appear that plaintiff was in any way prejudiced by the action of the court. Mounce v. Crowson, 59 Tex.Civ.App. 533, 126 S.W. 915.

We cannot see that trying one assault and battery case where the parties were not the same, the witnesses not the .same, no connection between the transactions involved, could in any way tend to disqualify the jurors to try another case. During the recess it was not contemplated the jurors should enter a cloister. It is fair to assume that they would piirsue their usual activities. One of these activities was service on the jury panel for the week. The trial judge needed and used them. This he had a right to do. It might be better to proceed promptly with a trial after the impanelment of the jury, but it is not always feasible to do this.

Judgment affirmed.


author: TIREY, Justice.

text:
    GRAND LODGE COLORED KNIGHTS OF PYTHIAS OF TEXAS v. WATSON et al.
    No. 2258.
    Court of Civil Appeals of Texas. Waco.
    Nov. 7, 1940.
    Rehearing Denied Dec. 12, 1940.
    Allen V. McDonnell, of Waco, Will G, Knox, of Dallas, and Tom M. Pog'ue, of Waco, for appellant.
    Barney A. Garrett, of Waco, Horton B. Porter and Jerry E. Clarke, both of Hills-boro, and Witt, Terrell, Lincoln, Jones & Riley, of Waco, for appellees.
   TIREY, Justice.

Plaintiff, Rufus Watson, brought this suit against the Grand Lodge Colored Knights of Pythias of Texas (a fraternal benefit society) to recover on a policy of insurance issued by said company on the life of William McDowell. The insurance company answered by bill of interpleader and admitted its liability on the policy and paid the face value of the policy into the registry of the court, and made B. B. McDowell, the Cooper Company, Inc., Charles H. McDowell and Lemuel McDowell parties to this suit and asked the court to determine the rights of the respective claimants to the fund and that the court award to it out of the fund tendered a reasonable attorney’s fee of $100 and for costs. Plaintiff Rufus Watson, by an amended original petition, set up that he was entitled to the fund, penalty, interest and attorney’s fee individually, or as community survivor of the estate of Susie McDowell Watson (beneficiary), or as administrator of the estate of William McDowell, deceased (insured). The case was tried by the court without a jury and the court awarded to Rufus Watson in his individual capacity the sum of $500 principal on the policy, together with statutory penalty, interest, attorney’s fees and costs, and awarded to the Cooper Company, Inc., out of said fund the sum of $165 on its assignment, and found that all other parties take nothing. The insurance company has appealed.

The judgment of the trial court is assailed mainly on two grounds: (1) The court erred in allowing Rufus Watson to recover penalties and attorney’s fees against the appellant for the reason that appellant did not deny liability on the policy, but, being on notice of conflicting claims, filed bill of interpleader in good faith; (2) in denying appellant a recovery for attorney’s fees for filing the bill of in-terpleader. Each of the foregoing assignments is sustained.

William McDowell, the insured, died December 16, 1938, while the policy of insurance on his life was still in force and effect. Susie McDowell was designated in the policy as a daughter and named the beneficiary. She made proof of death on December 21, 1938. Thereafter, said insurance company paid to Susie McDowell as beneficiary the sum of $75 burial funds due under the constitution and by-laws of the association and the policy' of insurance. This sum was not included in the face of the policy. Thereafter on January 1, 1939, Susie McDowell intermarried with Rufus Watson, plaintiff. Susie McDowell Watson made demand for the payment of the face of the policy about February 1, 1939. On March 3, 1939, Charles H. McDowell wrote the company substantially to the effect that the insured was his brother and that Susie Watson had changed the policy in question so as to make it payable to her and that it had been done without the consent or knowledge of the insured; that the insured had several children, but all were born out of wedlock and that William McDowell died intestate and that he had no legal heirs save and except the writer and his brother Lemuel McDowell. Susie McDowell Watson (beneficiary) died intestate without issue on March 11, 1939. On March 13, 1939, Rufus Watson advised the company of the death of his wife and demanded that the proceeds of the policy be paid to him. On May 1, 1939, the Cooper Company, Inc., wrote the insurance company to the effect that Susie McDowell had given R. M. Watson a power of attorney to collect the policy in question and that Watson had turned the matter over to it and that Watson was indebted to it in a sum in the amount of $150. Thereafter on xMay 15, 1939, R. M. Watson executed a written assignment to the Cooper Company, Inc., whereby he set over to the company the sum of $165 of the proceeds of said policy. In May of 1939, Watson, with his attorney, interviewed an executive officer of the defendant company and demanded payment of the proceeds of the policy to said Watson. The company at all times admitted liability on the policy and advised them that it was ready, able and willing to pay the policy as soon as it was definitely settled between the claimants as to who was entitled to the proceeds thereof. The company advised Watson and his attorney of the other claimants. Thereafter in May, appellee Watson brought this suit for himself against the defendant company for the entire proceeds of the policy, and for penalty, interest and attorney’s fees. Said company seasonably answered, filed its bill of interpleader and made claimants, B. B. McDowell, the Cooper Company, Inc., Charles H. McDowell and Lemuel McDowell parties defendant. It admitted its liability on the policy, tendered the sum of $500 into the registry of the court and asked the court to determine the rights of the various párties to the proceeds of the policy. It alleged that it in good faith filed the bill of interpleader and was in doubt as to who was entitled to the proceeds of the policy and that it was necessary for it to employ an attorney to file said bill of in-terpleader and that a reasonable fee for such service was $100, and that same be allowed to its attorney out of the proceeds of the policy tendered into the registry of the court, and asked that it recover its costs.

Each of the defendants im-pleaded answered and set up his respective claim to the proceeds of the policy. The plaintiff by amended original petition alleged that he was entitled to recovery of the fund in suit individually or as community survivor of the estate of Susie McDowell Watson or as administrator of the estate of William McDowell, deceased. The court fully heard the testimony of all parties in their efforts to establish their respective claims to the proceeds of the policy as shown by statement of facts containing 211 pages. The plaintiff, Rufus Watson, admitted on cross-examination that he knew Charles and Lemuel Me-Dowell were claiming the proceeds of the insurance policy. There is no evidence in the record that the insurance company denied liability on the policy, but, on the contrary, the evidence is uncontroverted that it at all times admitted its liability on'the policy and seasonably made payment of the $75 burial expense after proof of death was made. The trial court seems to have awarded penalty and attorney’s fees in favor of the plaintiff against the insurance company and denied the insurance company its right to attorney’s fees and costs on the theory that said bill of interpleader was not filed until after one of the claimants filed suit. The insurance company was not liable for the payment of penalty and attorney’s fees merely because it did not anticipate a lawsuit on the part of the rival claimants. The rule in Texas is “that the penalty and attorney’s fees may be assessed when there is, after demand, .a willful failure to pay the proceeds' of a policy. There is no such failure when there are rival claimants.” Southwestern Insurance Co. v. Woods National Bank, Tex.Civ.App., 107 S.W. 114, 119, writ refused. That there were rival claimants to the proceeds of the insurance policy is without dispute. We therefore hold that the failure to pay under the above circumstances is not the failure that is contemplated by the statute, Vernon’s Ann.Civ.St. art. 4831a, and we think the facts of this case bring it clearly within the doctrine announced in the case of Southwestern Insurance Co. v. Woods National Bank, supra. “The remedy of interpleader is efficacious and wholesome, and is allowed as a substantial right to the complainant who, under proper circumstances, invokes the same.” Great Southern Life Ins. Co. v. Kinney, Tex.Civ.App., 276 S.W. 741, 742. “Any reasonable doubt as to his right to an interpleader will be resolved in his favor.” Nixon v. New York Life Ins. Co., 100 Tex. 250, 98 S.W. 380, 385, 99 S.W. 403.

The insurance company pleaded that it had incurred reasonable attorney’s fees in the sum of $100, because it was forced to file bill of interpleader and introduced testimony thereon, but there was no adjudication of this fact issue by the trial court and this will require that this cause be reversed and remanded. Smith v. Texas Company, Tex.Com.App., 53 S.W.2d 774, point page 779. The judgment of the trial court should award to the company reasonable attorney’s fees and provide that said fee and all costs be paid out of the money deposited by appellant in the registry of the court in this cause, and further that plaintiff and none of the other parties defendant take anything against appellant. No complaint is made of the right of the Cooper Company, Inc., to recover against Rufus Watson and after appellant’s attorney’s fees and costs are satisfied, it is entitled to have its judgment against Rufus Watson liquidated out of the balance of the money, if any, deposited by the insurance company into the registry of the court. Great Southern Life Ins. Co. v. Kinney, supra. The remainder of the funds deposited in the registry of the court, if any, should be awarded to the plaintiff Rufus Watson. The insured had the right to designate Susie McDowell as the beneficiary even though she may have been illegitimate. Maxey v. Franklin Life Ins. Co., Tex.Civ.App., 164 S.W. 438. All other parties defendant should take nothing.

The judgment of the trial court is reversed and the cause remanded.


author: CODY, Justice.

text:
    HARTMAN et al. v. COSTALES et ux.
    No. 11062.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 27, 1940.
    Rehearing Denied Dec. 12, 1940.

      Lewis & Ingram, of Houston, for appellants.
    Burris & Benton,, of Houston (Fred Parks, of Houston, of counsel), for appel-lees.
   CODY, Justice.

This suit was brought by Isidoro Costa-les and wife to cancel a certain deed of trust which was given by them on February 19, 1936, on lot 87 of Trinity Gardens Addition to the city of Houston, to secure the payment of their note for $400, payable to appellant R. J. Hartman. The suit was. brought to set aside the trustee’s sale had under said deed of trust, and to cancel the trustee’s deed which undertook to convey the lot in conformity to the trustee’s sale. The ground for such cancellation was the alleged homestead character of the lot in question. P. B. Meyers, the trustee in the deed of trust, and Jack Bundick, the grantee in the trustee’s deed, were made codefendants with R. J. Hartman, the payee . of the aforesaid note. Before the case could be tried the wife of Costales died, and their children were substituted as her heirs and successors in interest.

Appellants filed a joint answer, pleading a general demurrer, a general denial, and specially denied that the property was ever homestead property, their reliance thereon by the lending of the sum of $400, and urged estoppel; they also pled that if the property were ever homestead property, it had been abandoned as such. As the substance oí the special issues, which were submitted to the jury, reflect the issues which were made by the pleadings of the parties, it will be unnecessary to give further details of the pleadings; but the sense of such pleadings can be seen from the following special issues.

The jury found in answer to special issue No. 1 that plaintiffs were living in the house on lot 87, Trinity Gardens, at the time the deed was made.

In answer to special issue No. 2 they found that Hartman knew at the time he made the loan that plaintiffs were living in the house on said lot.

In answer to special issue No. 4 the jury found that at the time the deed of trust here involved was executed the following language which was in it at the time of the trial, was not contained therein: “The above described property is not our homestead and we have no intention of using the same as a homestead and that we have other property located in Harris County, Texas, same being lot 85, Trinity Gardens, which is our homestead.”

Upon the verdict the trial court rendered judgment for appellees cancelling the deed of trust and trustee’s deed and removing cloud from appellees’ title to lot 87. Judgment was rendered for appellant Hartman on the note against Isidoro Cos-tales.

We hold that the court did not err in refusing appellants’ motion for an instructed verdict. There were both pleadings and evidence in support of the issues which were submitted to the jury. The credibility of such evidence was for the jury to determine.

Appellants complain that the court erred in permitting testimony in regard to a transaction with and conversations with the deceased wife of Costales, because the witnesses inherited from her, and that the evidence objected to comes within the prohibition of Article 3716 of Vernon’s Annotated Civil Statutes of Texas.

When appellee Isidoro Costales, who was the surviving spouse of his deceased wife, was on the witness stand, he testified, over the objection that his testimony was concerning a transaction with, and a conversation with, his deceased wife, that he saw his wife sign the papers (being the deed of trust whose cancellation was sought in this suit) ; that only he and his deceased wife and four children were present; that a big argument arose between him and his wife; that his wife threw ink on the top of the table, and told him not to use the papers which she had signed — being the deed of trust; that he nevertheless picked the same up, and put it in his pocket.

The witness Luther Costales, who was a minor and a party to the suit, testified, over objection based on Art. 3716, supra, that he remembered the occasion of his deceased mother spilling ink on a paper that she signed, and in substance verified his father’s previous testimony, relative to his mother’s ■ attitude in signing the deed of trust.

The witness Juanita Costales, also a minor and a party to the suit, was permitted, over objection, to testify to the ink spilling by her mother on the papers.

It is appellants’ contention that it was reversible error, under authority of Leahy v. Timon, 110 Tex. 73, 215 S.W. 951, 954, to have permitted Isidoro Costa-les to testify to the matter objected to. In the cited case the trial court excluded the evidence of Phillip Leahy relative to statements made by his wife’s deceased mother to him. Phillip Leahy, as the husband of Mrs. Timon’s daughter, was a party to the suit brought by his wife to contest Mrs. Timon’s will — that is, he was a party to .the suit, not by reason of any right of his own, but solely in the right of his wife. It is quite clear from the opinion in the cited case that the court limited its holding to the factual situation there before it. In a carefully considered opinion by Judge Critz, while sitting on the Commission of Appeals, it was held that where the maker of a note died, and left a surviving widow and daughter, that the rights of the widow which were based upon the deceased’s overpayments made on said note, accrued to her as survivor in community, and not as the heir of her deceased husband and that Art. 3716 relating to testimony in actions by and against heirs was inapplicable in her suit to recover excess payments. King v. Morris, 1 S.W.2d 605. The adoption by the Supreme Court of the judgment recommended in the case just cited necessarily was the adoption of the holding made in the opinion in the case, because the opinion was delivered on rehearing at which the former judgment rendered by the Commission of Appeals, 298 S.W. 412, was set aside and the former judgment could have been set aside only if the holding of the opinion on rehearing was adopted. Now in the King case, Mrs. King was as much a party to the action as Mr. Leahy was in the case of Leahy v. Timon, supra. But the difference between the cases was this: In the King case, Mrs. King brought her action in her own right, and not in the right of anyone else, nor to establish rights derived from anyone else by the law of descent and distribution; whereas, in the Leahy case, Leahy was asserting no independent right of his own, but only a right of his wife, and the statute by its terms there applied.

In the instant case, Isidoro Costales brought suit in his own right. His deceased wife’s interest in the property was represented in the suit by the children plaintiffs; he asserted no right in this action as the heir of his wife. It was not error, therefore, to admit his testimony so far as his interest in the property was concerned. As the evidence was correctly admissible, at least so far - as Isidoro Costales’ half interest and homestead rights in the property were concerned, and no request was made to limit his testimony, it was not error in the Court to admit said testimony without limitation. Neither do we understand that any request was made by appellants to have the Court, in the charge to the jury, to thus limit the testimony of Isidoro Costales.

In McKibban v. Scott, 131 Tex. 182, 114 S.W.2d 213, 215, 115 A.L.R. 1421, opinion by Judge Critz, the Supreme Court held, upon the authority of the Leahy case, and one other, “It is settled as the law of this state that the test furnished by article 3716, supra, embraces not only the capacity of the parties, but also the effect of the judgment of which the suit admits. If the action be one by or against an heir, in which judgment may be rendered for or against him, as such, the statute applies.” (Citing the Leahy case et al.) The court therefore erred in admitting the corroborating testimony of the son, Luther Costales, and daughter, Juanita. The evidence, however, was already in the record, as above stated, so the error was harmless, and is no cause for reversal. Rule 62a; Port City Lbr. Co. v. Wade, Tex.Civ.App., 16 S.W.2d 429, 431; Head v. Texas State Bank, Tex.Civ.App., 16 S.W.2d 298, 301.

The assignments of appellants relative to the admission of evidence of transactions and conversations had with the deceased are overruled.

We have considered the remaining assignments of error. The court did not abuse his discretion in refusing to grant a new trial because of the emotion displayed by some of appellees when their attorney referred, while argument to the jury, to the death of their mother. It is not complained that the remarks of counsel were improper or tended in anyway to inflame the jury, or that the effect upon the appellees was other than natural. Neither was it an abuse of discretion for the court to refuse to grant a new trial because of the “newly discovered” evidence. This holding applies also to the court’s refusal to send up the original deed of trust with the record.

Being of the opinion that no reversible error was committed by the trial court, the judgment is affirmed.

Affirmed.


author: SMITH, Chief Justice.

text:
    FARRELL v. SIEN et al.
    No. 10943.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1940.
    Rehearing Denied Dec. 18, 1940.

      J. B. Lewright, of San Antonio, for appellant.
    Jas. A. Harley, G. H. Russell, and Clarence R. Boatwright, all of San Antonio, for appellees.
   SMITH, Chief Justice.

In June, 1940, C. 'H. Mountjoy Parts Company brought suit in the 45th District Court of Bexar County against Sien Tire Company, Inc., W. R. Sien and Ruth M. Sien, upon an alleged debt Sien Tire Company owed the Parts Company. In due course the court appointed William T. Farrell, Jr., receiver of the assets of Sien Tire Company. The order directing the receiver to take over the assets of Sien Tire Company did not describe or itemize those assets, or any of them. Under that order the receiver took possession and assumed control and operation of a gasoline service station situated at Main, Soledad and Pecan Streets in the City of San Antonio, on premises owned by William Rei-chert and J. E. Levi, but then under lease from them to W. R. Sien, who, with his wife and daughter, owned all the capital stock of said Sien Tire Company.

Subsequently Main Service Station, Inc., W. R. Sien and A. C. Sien brought a statutory action of forcible entry and de-tainer against said receiver, in a proper Justice of the Peace Court, to recover possession of said service station premises.

Thereupon the receiver brought the present suit against Honorable Bat Corrigan,. Justice of the Peace, Main Service Station,. Inc., W. R. Sien and A. C. Sien, plaintiffs in the forcible entry and detainer suit, for an injunction to restrain them from further proceeding with said ouster suit. The relief prayed for was denied in the District Court and the receiver has appealed.

The whole contention of appellant is, in effect, that he, as a receiver acting under appointment and authority of the District Court, is in possession of the premises in question, and that such possession canhot be disturbed, or the right thereto litigated, by a Justice of the Peace Court, or by any court except that under which the receiver is functioning.

The statute provides that a receiver may be sued in his official capacity in any court of this State having jurisdiction of the cause of action, without leave of the court appointing him. Art. 2310, R.S.1925.

It must be conceded that the Justice of the Peace Court had jurisdiction of the forcible entry and detainer brought by ap-pellees and sought to be abated here by injunction; it is the only court having such jurisdiction. Art. 3973 et seq., R.S.1925, Vernon’s Ann.Civ.St. art. 3973 et seq.

It must also be conceded, and it is expressly provided by statute, that in such actions only the right of possession may be adjudicated (except the question of damages in a proper case). Art. 3984.

The matter of title may not be adjudicated in the action, and it is not contended in this case, unless it be by general conclusion of the pleader unsupported by allegations of fact, that the title to the premises in question is involved. It is simply an action to determine whether the receiver has the right of possession, and ap-pellees resorted to the only tribunal provided by law for adjudicating that right.

If under all the facts of the case the receiver is entitled to- the right of possession those facts, and all of them, can be adduced and resolved in the Justice of the Peace Court proceeding, and, presumably, rightly so, and injunction is not available to halt that proceeding. Pruett v. Trifon, Tex.Civ.App., 124 S.W.2d 868.

The institution of the suit in the Justice of the Peace Court is expressly authorized by statute, and the mere prosecution of it to judgment cannot affect the receiver’s possession; it can only determine the right of possession. If the judgment should be against the receiver in the Justice of the Peace Court, and in the County Court on appeal, then the question of possession will have been settled, conclusively, and, when advised of that adjudication, the District Court should and no doubt will direct the receiver to comply with the judgment of the Justice of the Peace Court. Lynch Davidson & Co. v. Hinnant, Tex.Civ.App., 93 S.W.2d 532; Joiner v. Currin, Tex.Civ.App., 118 S.W.2d 652; Eaton v. Whisenant, Tex.Civ.App., 50 S.W.2d 1109.

We hold that appellant has not alleged any cause which would warrant the court below in restraining the prosecution of the suit in the Justice of the Peace Court. 19 Tex.Jur. p. 763, § 5.

The judgment is affirmed.


author: WALKER, Chief Justice.

text:
    BATEN v. THORNHILL.
    No. 3721.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 31, 1940.
    Rehearing Denied Nov. 13, 1940.

      G. D. Baten, of Beaumont, for appellant.
    Sharfstein, Bell, Weinert & Nelson, of Beaumont, for appellee.
   WALKER, Chief Justice.

This suit was filed in district court of Jefferson county by appellee, C. B. Thorn-hill, the payee, against M. W. Lowry and J. E. Light, the makers, and appellant, Mrs. Clara G. Baten, in her representative capacity of administratrix of the estate of her deceased husband, Thos. J. Baten, guarantor, on a promissory note dated September 1, 1934, payable to ap-pellee at Beaumont, Texas, in the principal sum of $3,521.60, with interest at 10 per cent per annum from date until paid, payable annually, and 10 per cent attorney’s fees, with prayer for foreclosure of a deed of trust lien on certain real estate in Reeves and Hudspeth counties, owned by the makers.

Appellee plead his cause of action against the administratrix as follows: “The defendant Clara G. Baten sued herein in her representative capacity only, was duly appointed administratrix of the estate of the said Thos. J. Baten with will-annexed; and that at all times since said date the said defendant Clara G. Baten has been and now is the duly appointed, qualified and acting administratrix with will annexed of the said will of Thos. J. Baten, Deceased; that it is not possible for plaintiff to present his claim to said administratrix and to secure the relief to which he is entitled in the probate court for the reason that he seeks in this suit to enforce his several liens and to adjust the equities of all parties in the property covered by same as well as to establish his claim against the estate of Thos. J. Baten upon the contract of guaranty, such relief being beyond the jurisdiction and power of the County Court sitting in probate to grant in the single suit to which plaintiff is entitled against the original obligator and the guarantor’s estate herein; that it is necessary and desirable that said administra-trix be joined as party defendant herein rather than to secure a prior judgment and foreclosure against the original obli-gors alone in order to avoid a multiplicity of suits and in order that said adminis-tratrix may take such action as to her shall seem meet and proper in order to protect the interests of said estate throughout such proceeding.”

His prayer for relief against the ad-ministratrix was ■ as follows: “ * * * and further prays for judgment against the defendant, Clara G. Baten, in her representative capacity as administratrix with the will annexed of the estate of Thos. J. Baten, Deceased, upon said contract of guaranty hereinabove set forth for such sum of $3,521.60 together with interest and attorney fees accrued thereon as herein-above stated, and all costs of suit, and further providing that the property upon which the liens are foreclosed be first sold and the proceeds credited upon said judgment, and directing the Sheriff to first levy upon the property of the defendants M. W. Lowry and J. E. Light in such amount as will, in his opinion, be sufficient to make the amount of the execution, otherwise on so much property of the said defendants, M. W. Lowry and J. E. Light as may be found, if any, and thereafter that the Clerk of this Court certify the deficit unpaid on said sums to the County Court of Jefferson County, in probate to be paid by the defendant Clara G. Baten, Administratrix as aforesaid, in due course of administration.”

During his lifetime the guarantor paid on the note the sum of $2,000. On the allegations of his petition, appellee’s claim had not been presented to the adminis-tratrix as required by Articles 3509, 3530, 4239 (and by reference), 4308, R.C.S.1925. On that allegation, appellant by exception challenges the sufficiency of the petition to confer jurisdiction upon the district court.

No issue by the evidence was made against the validity of the note, principal, interest and attorney’s fees, as plead by appellee, less the payments made by the guarantor. Neither the pleadings nor the evidence raised any issue against the solvency of the makers. It is conceded that appellee did not file his claim in any way in the probate- court prior to the filing of this suit; the evidence showed no prior demand or ' action invoking the jurisdiction of the probate court.

On trial to the court without a jury, judgment was entered in favor of appel-lee against-the makers, Lowry and Light, for the sum of $2,874.67, with foreclosure of the deed of trust lien, writ of possession, execution for the deficiency, etc. Judgment was entered against the ad-ministratrix on the guaranty of her deceased husband, Thos. J. Baten, for the sum of $1,971.73. The difference between the judgment against the guarantor and the judgment against the makers was occasioned by the fact that the note guaranteed by Thos. J. Baten was less than the amount of the debt acknowledged in the deed of trust.

After directing the sale of all property covered by the deed of trust, and that execution issue against the makers for the deficiency, the judgment proceeded: “And thereafter, after crediting the proceeds of any and -all such sales upon this judgment the Clerk of this court shall certify the balance and deficit remaining unpaid upon the portion of this judgment against the defendant Clara G. Baten, as Adminis-tratrix aforesaid, to the County Court of Jefferson County, Texas, wherein administration on the .Estate of Thos. J. Baten, Deceased, is pending, to be paid by the defendant Clara G. Baten in her capacity as Administratrix with the will annexed of the Estate of Thos. J. Baten, Deceased, in due course of administration.”

Appellant has filed an able brief .and has reviewed with accuracy and clearness the authorities relied upon by her to support her proposition that the district court was without jurisdiction to entertain this suit: “Plaintiff’s Petition on it’s face having shown the estate of Thomas J. Baten, Deceased, was in the process of administration ' in the Probate Court, and such petition alleging a liquidated demand for a sum certain in amount, and such petition showing on it’s face no presentment of a verified claim to the Adminis-tratrix of such estate for approval or rejection,' the District Court was without jurisdiction to entertain the Plaintiff’s suit against the administratrix, and the pleas to the jurisdiction of the Court and the exceptions to the petition should have been sustained.”

The liability of the estate of Thos. J. Baten, as guarantor, was evidenced by the following written endorsement by him on the back of appellee’s note: “September 1, 1934, I hereby guarantee the payment .of this note. Thos. J. Baten.”

In his will, Mr. Baten provided: “I direct that all my debts, including all security debts, be paid out of my estate, I am security on notes due C. B. Thornhill, and I want all of them paid.”

In her proposition, appellant is correct in her statement that appellee’s note evidenced “a liquidated demand for a sum certain in amount.” Construing a guarantor’s liability, in National Guaranty Loan & Trust Co. v. Fly, 29 Tex.Civ.App. 533, 69 S.W. 231, 232, the court said: “It is an absolute guaranty of the payment of the note according to its terms in event default be made by the makers. The undertaking is to pay directly if the makers default, and upon such default the liability of Jessel became absolute and primary.”

On the admitted facts that appel-lee’s demand was absolute and certain, that no issue was made against the solvency of the makers, and. that- appellee had filed no prior demand invoking the jurisdiction of the probate court, the recent opinion- of the Austin Court of Civil Appeals, written by Mr. Chief Justice McClendon, in Johnson v. First Mortg. Loan Co. of San Angelo, 135 S.W.2d 806, is decisive against appellant’s proposition that the district court was without jurisdiction to entertain appellee’s demand. The opinion in that case is a clear holding, supporting the jurisdiction of the district court. In support of his conclusion, Judge McClendon cited Hume v. Perry, Tex.Civ.App., 136 S.W. 594. He reviewed the recent opinion of Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279, where, without expressing any opinion as to the correctness of the holding in Hume v. Perry, the Commission quoted' the notation of the Supreme Court in granting the writ of error in Hume v. Perry. Judge McClendon concluded his discussion as follows [135 S.W.2d 810]: “The opinion in the Hume case is an evidently careful consideration of the subject, and we are in accord with its reasoning and conclusion. The decision has never been overruled.”

We, too, “are in accord” with the reasoning and conclusion of the court in the Hume case. The jurisdictional proposition invoked by appellant is not one of substantive law, but merely a matter of procedure. The office of a procedural statute is to afford claimants a speedy and satisfactory method of adjusting their claims. The construction of the statutes in issue, quoted and analyzed by Judge McClendon in his 'opinion, as made in the Hume case, has long been judicial history. It must be presumed that through all these: years the Bench and Bar have accepted this construction as sound. Even if the construction were doubtful, after all these years this court would hesitate to disturb the conclusions of the Hume case. The procedure therein outlined, in construing these statutes, is satisfactory, expeditious, and avoids a multiplicity of suits. It would serve no useful purpose to review appellant’s authorities.

In’ her brief filed subsequent to submission, appellant suggests fundamental error in the following respects:

(1) “It is incumbent upon the plaintiff to plead and prove consideration for the guaranty of contract.” This proposition is overruled. A written contract of guaranty imports a sufficient consideration. 10 Tex. Jur. 117. The burden rested upon appellant to plead failure of consideration as a defense. 10 Tex.Jur. 514: “Where the contract is in writing, want or failure of consideration must be pleaded by the promisor when relied on as a defense.”

Want of consideration is not established merely by lack of any evidence on Consideration. 10 Tex.Jur. 526: “The burden of proving want or failure of consideration, * * * is upon the party who seeks to avoid the contract or excuses a failure to perform on that ground.”

Appellant had no plea and offered no evidence on this issue.

(2) As a second ground of fundamental error, appellant suggests that the judgment is duplicitous. As shown in our statement - above, the judgment against the makers was for $2,874.67 and against appellant for $1,971.73. The judgment was in no sense duplicitous. While appellee was given a recovery against the makers in excess of the recovery against appellant, the judgment adjusted the equities between the makers and the Baten estate.

(3) Appellant’s last proposition of fundamental error is as follows: “Under no theory of the case could the District Court have rendered judgment in favor of the plaintiff for any deficiency between the ultimate amount adjudicated against Lowry and Light and any amount adjudicated against Clara G. Baten, adminis-tratrix, because the whole theory of the law suit, as to the administratrix in her representative capacity, was that she was liable for a liquidated amount under a guaranty contract and she was in no wise liable for any deficiency after execution against Lowry and Light for any amount adjudged against Lowry and Light.”

The judgment conformed to Arts. 6251, 6252, and 6247. See National Guaranty Loan & Trust Co. v. Fly, supra, and Hume v. Perry, supra.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


author: O’QUINN, Justice. WALKER, Chief Justice, and COMBS, Justice.

text:
    SAMUEL v. FEDERAL UNDERWRITERS EXCHANGE.
    No. 3730.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 11, 1940.
    Rehearing Denied Nov. 20, 1940.

      Heaner, Pierson, Dawson & Hatten, of Houston, for appellant.
    Sharfstein, Bell, Weinert & Nelson, of Beaumont, for appellee.
   O’QUINN, Justice.

This suit is an appeal from an award of the Industrial Accident Board, brought by Lonzo Samuel, appellant, against Federal Underwriters Exchange, to recover compensation insurance for total permanent disability resulting from an injury alleged to have been received by him in the course of his employment as an employe of the Burrus Lumber Company.

The defendant answered, and specifically alleged that the injury received by appellant was not sustained in the course of his employment, but that same was caused by his willful intention and attempt to unlawfully injure another person.

The case was tried to a jury, but at the close of the evidence, on motion of ap-pellee, the court instructed the jury to return a verdict for appellee, which was done and judgment entered in its favor. This appeal is from that judgment.

On November 28, 1938, the Burrus Lumber Company was operating a sawmill manufacturing lumber. Appellant and one Edgar Terrell were t\yo of its employees. Appellant worked at rolling logs onto a conveyor chain that carried logs from a pile where they were unloaded from railway cars. Sometimes when a log was thrown on the chain it would twist around crooked and would have to be pulled straight before it could be carried on the chain. Edgar Terrell worked as a “tong hooker” — tong the logs and pull or twist them into the position sought. Some of the logs became. out of position- and Mr. Roy J. Christian, who was in charge of the loading machine — handling logs for the mill, and under whom Lonzo Samuel and Edgar Terrell worked — told Terrell to go try to straighten out some of the logs that had been thrown down from the car on the pile where Samuel was placing them onto the chain so as to help Samuels; Terrell went down to “hook” the logs, and Samuel began talking to him — the nature of the talk was such as we refrain to .state it — - and Terrell struck Samuel with his fist and they fell to the ground fighting. Almost immediately — two or three minutes Mr. Christian estimated — another of the employees pulled Terrell off of Samuel. Terrell immediately after he was pulled off of Samuel left the scene of the - fight and walked around the pond and pile of logs and on up near the car from which he had been unloading logs when he was told by Mr. Christian to go and help Samuel, where he stopped. Samuel, immediately after he got up when Terrell left him, went some IS or 20 steps (under the mill) and picked up an iron rod one-half inch in diameter and (estimated by Mr. Christian at “about three and a half or four feet long,” which was about “IS or 20 steps from where scuffling”) and followed Terrell to where he, Terrell, had stopped by the log car where he had been unloading logs, with the iron bar in one hand drawn back as if to strike; he also had drawn his pocket knife out of his pocket and had it open in his other hand drawn up in front of his chest in a striking attitude. When he, Samuel, got to within about three feet of Terrell he stopped. In the meantime while Samuel was following Terrell, or ad-, vancing on him, he, Terrell, picked up a piece of two by four scantling about four feet long and drew it back as if to strike, and called on Samuel to stop and that if he did not stop and leave him alone, he, Terrell, would hit him. At that time Samuel did not stop but continued to advance until he was within some three feet of Terrell when he stopped. As Samuel advanced toward Terrell, Terrell backed some two or three steps to against the log car. Mr. Christian described that portion of the occurrence: “Q. You mean that Lonzo went at him? A. Yes, sir, with the bar of iron. He (Terrell) got up against a car there, and Edgar told him if he didn’t go on and let him alone he was going to hit him, and the negro just kept walking over to him, and Edgar hit him over the head with a piece of two by four about three and a half or four feet long” — knocking him unconscious and seriously injuring him.

Samuel said nothing while he was following Terrell Terrell picked up the two by four wher^ he was standing by the log car. The interval of time between the first fight when Terrell knocked Samuel down and got on him and was striking him with his fist and was pulled off, and when Samuel was knocked down by the two by four scantling, was variously estimated at from three or four minutes to five or ten minutes. The record does not reflect that any other roughness had ever occurred between them.

The controlling question is: Did Terrell in good faith abandon the fight when he left the scene after knocking Samuel down and was pulled off of him and went back to his place of work at the log car, or was the second affair when Samuel was knocked down by Terrell striking him with the two by four but a continuance of the original affray ? Appellee contends that Terrell had completely abandoned the fight, and that Samuel then armed himself with the iron rod and pocket knife and followed Terrell some 30 or 35 steps from the place of the first fight to where he had returned to his work, intending to unlawfully assault and injure him because of what had happened in the beginning, and that Terrell was compelled to strike him in his own proper defense. Appellant insists that there had been no abandonment of the fight by Terrell, but that it was all one continuous affair. Both parties cite decisions which they insist support their contentions. Because of the conclusion we have reached, we will not discuss them.

Unquestionably the trouble arose in the discharge of the work they were then performing in the course of their employment. In passing upon the correctness of the court’s taking the case from the jury, we will not consider any conflict of the evidence brought about by the evidence offered by appellee. We have set out the substance of the evidence offered by appellant from apparently unbiased witnesses. Both Samuel and Terrell testified. We have omitted the substance of their testimony, though there was no serious conflict in their statements, except upon the abandonment feature of the fight. If the evidence stated above is such that the minds of reasonable persons could reach but one conclusion, namely: that Terrell had abandoned the fight, and that Samuel had armed himself with the iron bar and knife and pursued him with the willful intent then and there to unlawfully assault and' injure him, then the court’s action in directing the verdict was proper; while on the other hand, if the minds of reasonable persons, in considering the evidence, could or might reach the conclusion that Terrell had not abandoned the fight, and that the whole affair was but one continuous fight, then the question of abandonment was one of fact to be determined by the jury and it was error for the court to take the case from the jury.

From a careful consideration of the whole evidence, we have ctoncluded that reasonable minds might differ as to the question of abandonment, and so we reverse the judgment and remand the case for another trial. We refrain from a discussion of the evidence or of the decisions cited.

The judgment is reversed and the cause remanded.

WALKER, Chief Justice, and COMBS, Justice.

To make the position of the court clear on the issues of law arising on the facts of this case, we add the following conclusions to the able opinion prepared by Mr. Justice O’QUINN:

.. On the evidence as a whole, there 'is no issue against.the conclusion that the fight, in its origin; had to do with and originated in the work- of Burrus Lumber Company, and that the beginning of the fight originated while appellant and Terrell were engaged in and about the furtherance of the business of Burrus Lumber Company — - all within, the provisions of second Subsection 4 of Sec. 1, of Article 8309, R.C.S. 1925: “An injury caused by the employe’s willful intention-and attempt to injure himself, or to. unlawfully injure some other person, but shall include all other injuries of .every kind-and character having to do with and originating in the work, business, trade or profession of the employer received by an employe while engaged in or about the furtherance of the affairs or business -of his employer whether upon the employer’s premises or elsewhere.” But appellant was not injured in the first stages of'the fight. Had he been injured at that time there would be no issue of law against his claim as a compensable injury. Appel-lee so'- concedes. He was injured some moments later, after Terrell had walked away from the place where the fight originated. Judge O’Quinn gives the facts on this point.-

Now the point at issue is whether appellant’s injury was caused by an attempt on his part to. “unlawfully injure” Terrell. As a construction of the law of the facts of this case on this issue, Justice O’QUINN advances the two following prop-ositionsi (1') “ * * * if the minds of reasonable persons, in considering the evidence, could or might reach the conclusion that Terrell had not abandoned the fight,” then whether appellant’s claim is compensable is a question of fact for the jury. This issue must be determined from appellant’s point of view since his actual intent at the time of his injury is the controlling question. If, on the evidence as a whole, a reasonably prudent man, situated as was- appellant, would have believed that Terrell had riot abandoned the fight, then appellant was not injured in an unlawful attempt to injure Terrell within the meaning of second Sub-section 4, Section 1, of Art. 8309, copied above.

We give Justice O’QUINN’S second proposition that if “the' whole affair was but one continuous fight,” then whether appellant’s claim is compensable is a question of fact for the jury. In- order to convict appellant, as a matter of law, of an attempt to “unlawfully injure” Terrell, thereby taking his claim out of our Workmen’s Compensation Act, it must so clearly appear under all the facts and circumstances in evidence that reasonable minds could reach but the one conclusion that appellant’s act in approaching Terrell just before he was injured, armed and with threatening gestures, was voluntary and that his mind was functioning with sufficient normality to form a design and willful intent to injure Terrell. If appellant’s, act in arming himself after he had been struck by Terrell and following Terrell to the place where Terrell struck and injured him were in response to a passion beyond his control, aroused by the assault made upon him by Terrell, and which completely overturned his reason from the time he started to approach Terrell until Terrell struck him, then his assault on Terrell— his approach to Terrell with threatening gestures — must be regarded as involuntary, and as free of that criminal or intentional element necessary under second Sub-section 4, of Sec. 1, of Art. 8309, to preclude his right to recover. In this conclusion we have used in,substance the language of the court in Indemnity Ins. Co. of North America v. Scott, Tex.Com.App., 298 S.W. 414. See also Casualty Rec. Exchange v. Parker, Tex.Com.App., 12 S.W.2d 536; Cherry v. Magnolia Pet. Co., Tex.Com.App., 45 S.W.2d 555; Consolidated Underwriters v. Scott, Tex.Civ.App., 272 S.W. 520; Traveler’s Ins. Co. v. Culpepper, Tex.Civ.App., 82 S.W.2d 1054. Construing these cases, Lawler in Texas Workmen’s Compensation Law, says, page 143: “From a consideration of these cases, it would seem that the reason for refusing recovery in any case held to fall within the operation of one of the exceptions, is that the injury received bore no. causal relation to the conditions of the employment.” The controlling proposition of law in this case is whether the injury received by appellant bore -a causal relation to the conditions of his employment, and this issue must be determined on the principles of law discussed above.

The court is in agreement that error was committed in instructing the verdict against appellant, and in Justice O’QUINN’S conclusion that the judgment of the lower court .should be reversed and the cause remanded for a new trial.


author: O’QUINN, Justice.

text:
    JONES et al. v. SUN OIL CO. et al.
    No. 3724.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 1, 1940.
    Rehearing Denied Nov. 20, 1940.

      G. C. Lowe, of Woodville, and M. M. Feagin and R. H. Jones, both of Livingston, for appellants.
    James F. Parker and R. A. Richardson, both of Kountze, and C. A. Toler, T. L. Foster, and J. W. Timmins, all of Dallas, for appellees.
   O’QUINN, Justice.

We gather from the record the following: On July 16, 1930, Mrs. Addie Walker, a widow, who alleged that she then resided in Hardin County, Texas, filed her application in the County Court of Hardin County, Texas, to be appointed guardian of the persons and estates of her four minor children, to-wit: L. C. Overstreet, Woodrow Overstreet, each of whom was then over fourteen years of age, and Edith Overstreet and Ferguson Overstreet. The two minors over fourteen years of age, L. C. and Woodrow Overstreet, filed their written waiver of citation and personal service on July 16, 1930, and made choice of their mother, Mrs. Addie Walker, as guardian of their persons and estates.

On August 27, 1930, A. L. Bevil, County Judge of said Hardin County, by written order, which is duly recorded in the minutes of the court, duly appointed Mrs. Addie Walker guardian of the persons and estates of said minors, to-wit: L. C. Overstreet, Woodrow Overstreet, Edith Overstreet, and Ferguson Overstreet.

The application of Mrs. Addie Walker to be appointed guardian, the waiver of her two older children, L. C. Overstreet and Woodrow Overstreet, and the court’s order appointing Mrs. Walker guardian, are the only original papers to be found. All proceedings, orders and decrees, except those mentioned above, were lost or misplaced before being entered of record in the minutes of the court. Even the judge’s docket was lost. A. L. Bevil was judge of the court at that time, and was so continuously thereafter until his attention was called to the fact that all the proceedings, except the three papers above mentioned, were lost or misplaced, and had not been recorded in the- minutes of the court when, on January 21, 1937, on his own motion, he made his order, nunc pro tunc, to supply, protect and preserve the proceedings, records, orders, judgments and decrees that were actually made and transacted in the county court in said guardianship proceedings while he was the judge presiding of such court. This nunc pro tunc order is in the transcript but as it occupies fifteen full pages, it will not be copied herein. Suffice it to say that it contains a full recitation óf all the facts that would pertain to such matter, and full copies of all papers, applications, orders, and decrees necessary to the proceedings in the court.

As disclosed by the order nunc pro tunc, the land described therein was sold by the guardian, Mrs. Addie Walker, under order of the court and O. O. Overstreet became the purchaser. Appellees are claiming under her guardian’s deed conveying same.

This is a suit filed by appellants in the County Court of Hardin County, February 3, 1938, to set aside all the orders, judgments and decrees had in the guardianship proceedings, and to cancel and annul the nunc pro tunc entries and orders, and that all proceedings in the guardianship matter be abated and held without authority for want of venue in the court to hear and determine same.

Appellees answered. The cause was tried to a jury, but at the conclusion of the evidence the court instructed a verdict for appellees, which was duly returned and judgment entered in their favor, from which judgment appellants appealed to the district court of Hardin County, Texas.

In the district court, appellees filed their amended answer in which they specially challenged the jurisdiction of the court and asserted that the court was without jurisdiction to hear and determine the matter for in that appellants originally filed their suit in the County Court of Hardin County, Texas, wherein they sought to set aside, cancel and annul all of the proceedings had in the guardianship proceedings in said court involving the land here in question, and seeking to cancel and annul the deed of Mrs. Walker, the guardian of the minors, to the land involved, which directly brought the title to the land in question into litigation, and so, in effect, was a suit in trespass to try title of which the county court did not have jurisdiction, and since this suit in the district court was on an appeal from the county court, the district court had only the jurisdiction that existed in the county court, and as the county court had no jurisdiction, so the district court was without jurisdiction, and the suit should be dismissed. After their plea to the jurisdiction, appellees answered by general denial and a plea of the four years’ statute of limitation.

On trial in the -district court, the court sustained the plea to the jurisdiction of the court, and dismissed the case for want of jurisdiction in the court to hear same. This appeal is from that judgment.

As grounds for abating and annulling the guardianship proceedings had in the County Court of Hardin County, appellants alleged that the court was without jurisdiction to entertain Mrs. Walker’s application to be appointed guardian of her minor children, or to make such appointment because at the time neither Mrs. Walker nor any of the children resided in Hardin County, but that she and they were residents of Rusk County, Texas, and that under Article 4111, Vernon’s Annotated Civil Statutes of Texas, they must have been residents of Hardin County to confer jurisdiction of the county court in that county. In her application she alleged that she and her minor children resided in Hardin County. Other than the application stating the residence of Mrs. Walker and her children to be Hardin County, and the allegations of appellants in their petition stating they resided in Rusk County, there is nothing to show residence. But the rule is well settled that when a court of competent jurisdiction having the matter before it, acts in favor of its jurisdiction the presumption is conclusive that all facts not appearing of record were found by the court in favor of its jurisdiction. The application of Mrs. Walker and the waiver of the two children that were over fourteen years of age, and the judgment of the court appointing Mrs. Walker guardian, would lead the ordinary legal mind to conclude that the court found that it had jurisdiction of the guardian and the persons and estates of the minors, and where the record is silent as to the facts concerning jurisdiction, it is conclusively presumed that all the facts not appearing of record were found by the court in favor of its jurisdiction. And, further, Article 5, Section 16 of the Constitution, Vernon’s Ann. St., invests the county court with original jurisdiction in probate matters. It has the power to dispose of business in term time or in vacation, and its judgments in probate matters are those of a court of general jurisdiction, and the same conclusive presumption should be indulged in favor of its judgments in probate matters as are indulged in favor of the judgments of district courts relating to matters within their jurisdiction. The county judge in the trial of this case took judicial cognizance of all the facts pertaining to the guardianship proceedings complained by appellants, and held that he had jurisdiction and authority to make and enter, and did actually make and sign all orders, judgments and decrees while the proceedings were active, as outlined and stated in his nunc pro tunc judgment of January 21, 1937. As stated, appellants brought this suit in the County Court of Hardin County to set aside, cancel and annul the orders, judgment, and in fact all the proceedings had in the guardianship proceedings, including the deed from Mrs. Walker, the guardian, to the land sold under order and approval of the court. The county court did not have jurisdiction of a suit to cancel, annul and set aside the guardian’s deed. Only the district court, when acting as a court of original jurisdiction can do that, it involving a right or title to land. Article 1906, Vernon’s Annotated Texas Civil Statutes; Sections 8, 16, Article 5, Texas Constitution; Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932; Johnson v. Ortiz Oil Co., Tex.Civ.App., 104 S.W.2d 543; Farley v. Dorsey, 134 Tex. 403, 135 S.W.2d 89.

Appellants’ second assignment asserts that “The Court (County Court) was clothed with jurisdiction to hear and determine Appellants’ Bill of Review and Direct Attack, as set forth and alleged in their pleadings, by reason of same having for their purpose the abatement of the so-called nunc pro tunc orders entered in said cause, by reason of the Court having been unauthorized to make and enter such so-called nunc pro tunc orders for in that there were no docket or other entry evidencing or showing the same.”

We overrule this contention. Appellants’ contention that the county court was not authorized to make and enter the nunc pro tunc order is based upon the absence of any docket entries or other record evidencing any'action by the court during the active proceedings in the guardianship complained of. As we stated in the outset, in the original application of Mrs. Addie Walker for letters of guardianship of the persons and estates of her four minor children,, she alleged her own residence and that of her said minor children to be in Hardin County, Texas. This application was filed in the county court July 16, 1930, and still exists as a record in said court. The waiver of the two minors, L. C. and Woodrow Over-street, who were then over fourteen years oi age, filed the same day, waiving personal service and choosing their mother as guardian/ is also on file in said court and part of the record. Also the court’s written order" of date August 27, 1930, appointing Mr-s.-Walker guardian of her children exists iand is of record in the minutes of the cojtrt. -The other papers and orders of the cqurt in said proceeding, together with the court docket, were lost or misplaced, and so could not be found. On his own motion, on January 21, 1937, the court (being the same judge who presided at the time the guardianship originated and constantly since), his attention being called to the state of -the record, made and entered his judgment nunc pro tunc to perfect and preserve the recordi which nunc pro tunc judgment began with the following recitation: “Be it reinembered, that on this 21st day of January,- 1937, the court, -the same judge now presiding as presided heretofore during all the proceedings and transactions as hereinafter recited, in order to supply, protect and preserve its proceedings, records, orders and judgment in this cause, having first heard and considered evidence from 0. O. Overstreet, E. B. -Marshall and James F. Parker with reference to the matters hereinafter set forth, together with the court’s.own memory and judicial cognizance] and upon other evidence heard and considered of all of the facts herein recited in corroboration of the court’s own memory and judicial knowledge, of its own motion finds, adjudges and decrees as follows,” and then proceeded to find, step by step, and to set out the several motions, applications, orders and decrees embracing and comprising the complete record of the whole proceedings in the cause, filling fifteen pages of the transcript, as his judgment "nunc pro tunc.

It was this nunc pro tunc judgment that appellant sought to set aside and abate, because, as he contends, the court yras not authorized to make and enter same. This contention is without force. In Dowdle v. United States Fidelity & Guaranty Co., 255 S.W. 388, 389, the Commission of Appeals speaking for the Supreme Court, said: “The authorities all agree that the court has the power to correct its own minutes, and to make them speak the truth by the entry of a judgment that has actually been rendered, but which has been omitted from its minutes. There can be no question as to the power of the district court, of Bexar county to correct its minutes, and to have entered therein a judgment which had been previously rendered. It could do this of its own motion.”

This case has been followed in Buttrill v. Occidental Life Ins. Co., Tex.Civ.App., 45 S.W.2d 636; and in Rogers v. Allen, Tex.Civ.App., 80 S.W.2d 1085.

In Smith v. Moore, Tex.Civ.App., 212 S.W. 988, 990, it is said: “The contention of appellant is that the court records themselves, as introduced, must show the fact that judgment was in fact announced or rendered, if not entered, disposing of Wooten Grocery Company, to justify the entry of the judgment now for then.. We do not concur in the contention made. In the first place, the statute quoted above places no such limitation upon the power of the court to correct its own judgment. The following authorities, we think, clearly hold that the court, in correcting a mistake in the record of its judgment, and acting in conformity to the provisions of the statute, may do so in the absence of any" written memorandum or evidence found in the court’s records: Ft. Worth & D. C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25; Partridge v. Wooton, 63 Tex.Civ.App. 280, 137 S.W. 412. See, also, Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040.”

In the Partridge v. Wooton case [63 Tex.Civ.App. 280, 137 S.W. 413], Chief Justice Conner, of the Fort Worth court, uses the following language: “While some authorities, including some of the earlier decisions of our own courts, seem to support appellant’s contention, we think it now settled in this state that in the correction of a" judgment, as authorized by the Revised Statutes of 1895, art. 1356 [now 2228], the court may act upon his own recollection, or upon such legal evidence, oral or otherwise, as to the court may seem proper.”

We think it clear that the judge of the county court had the fundamentally inherent right to make its records reflect the truth of all transactions had therein. And in the instant case that was to preserve in the minutes and records of his court the proceedings and judgment that had actually been announced in the matter at hand, hut which did not 'appear- in the minutes of the court. It was not for the purpose of amending an imperfect judgment that had been rendered, hut the preservation of and reducing to record of a correct judgment without any change that had been rendered, but not recorded. In Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041, it was said: “The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded. The failure of the minute entry to correctly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwithstanding its imperfect record. * * * Hence it is that from the earliest times the power of correcting or amending their records, by nunc pro tunc entry, so as to faithfully recite their action, has been possessed and exercised by the courts as an inherent right, independent of amy statute, and, in the absence of express provision, unaffected by limitation(Italics ours).

The court further said, in considering the difference between the correction of an erroneous judgment nunc pro tunc, and the perfecting of the record nunc pro tunc (as in the instant case) of a judgment already correctly rendered: “It should also be noted that this proceeding did not have for its purpose the correction or amendment of the judgment rendered by the court as distinguished from the entry of the judgment upon the minutes. It sought only to amend the entry, nunc pro tunc, so as to include that which was omitted and thereby afford a faithful record of the whole judgment. In other words, it did not seek the amendment or correction of a judicial mistake as distinguished from a clerical mistake or omission.”

And further: “These two cases well illustrate the distinction which lies clearly defined between a suit to correct a judgment because of a mistake of the court in its rendition, whereby an improper judgment is rendered but its entry is in accordance with the rendition, and a proceeding to correct or supply the minutes. of the court so as to have them truly recite the judgment actually, rendered. To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary, as its jurisdiction of the case is at an end. In the latter instance [that is, a proceeding to correct or supply the minutes of the court so as to have them truly recite the judgment actually rendered] the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry because the inherent power that it possesses as a court over its own records endures for the sake of their verity.”'

And, it further said: “Every -court has the right to judge of its own records and minutes, and, if it appear satisfactorily 'to them that an order was actually made at a former term and omitted to be entered by the clerk, they may at any time direct such order to be entered on the records as of the time when it was made.”

We think it clear that under these authorities the County Court of Hardin County had the inherent power to enter its judgment nunc pro tunc preserving all proceedings and supplying the record of pro? ceedings had before it in the Addie Walker guardianship matter, and that it can do this without notice, and. even without hearing, if no records are changed and no dip ferent judgment entered; but,. a.s,.it appears in the recitation of the court’s order 'nunc pro tunc, the judge, as a matter of safety and precaution, actually had a hearing before entering the order nunc pro tunc, in which he considered the testimony of O. O. Overstreet, the purchaser of the land' under the court’s order óf sale, and James F. Parker, the lawyer who prepared all of the Addie Walker papers, judgments, orders, and decrees in said, guardianship proceedings that were made and signed by the judge and filed as papers of record in the case, but which were lost before being entered in the minutes.

Speaking precisely to this point, Judge Phillips in Coleman v. Zapp, supra, says: “A proceeding of such • character, -¡whqse only purpose is to have the judgment-, enT try speak.truly the judgment as rendered, neither asserts nor seeks the enforcement of any new right. It presents, no issue between the parties except in respect to the accuracy of the record, and otherwise involves the adjudication of nothiiig between them. It is powerless to reopen the controversy as closed and sealed by the judgment, and makes no such attempt. The inquiry under it is not what judgment might or ought to have been rendered, but only what judgment was rendered; and such is the sole issue to be determined. If an amended or corrected entry be ordered, the status of the parties and their relative rights, as decreed and fixed by the judgment, remains untouched and unaltered, in no sense adjudicated anew, but only judicially evidenced as originally determined. The result is that only that is done by the court which it had the inherent power to originally do as a part of its decision of the case, and which it would have done in the interest of a truthful record. It is as much the concern and duty of the court to have its records faithfully recite its judgments as it is to render the judgments themselves, and for that reason it is held that its jurisdiction over its records does not end with the term. In this sense a case is regarded as pending until the judgment rendered is correctly recorded. It is the right of parties to have such a record; and it ought not to be the law, and in our opinion it is not the law, that they are under the necessity of instituting an independent suit to obtain it. A proceeding of this nature cannot, therefore, be regarded as an ‘action’ within the meaning of the statute referred to, and is not affected by the limitation therein provided.”

Appellants rely upon the case of Teague v. Swasey, 46 Tex.Civ.App. 151, 102 S.W. 458, as supporting their contention that the county court may not enter a nunc pro tunc judgment unless there is some docket entry or some other recorded evidence of the court’s action. The cited case is not authority for this proposition for the reason that at the time the decision was made, April, 1907, the statute so provided, but since that time the statute has been amended, and the provision of the law relied upon by appellants was eliminated, and was not in force in 1930. See Article 3302, Vernon’s Annotated Civil Statutes of Texas.

Appellants also cite Hannon v. Henson, 15 S.W.2d 579, as supporting their contention. That opinion was delivered by the Commission of Appeals on March 27, 1929, based upon a statute providing: “All * * decisions, orders, decrees and judgments [of the county court] shall be entered on the records of the court during the term at which same are rendered; and any such decision, order, decree or judgment shall be a nullity unless entered of record.” That statute was amended prior to the guardianship proceedings here in question, as shown by Article 3302, above cited, and the words “and any such decision, order, decree or judgment shall be a nullity unless entered of record,” were eliminated, and after such amendment was no longer the law. Article 3302, R.C.S.

The judgment is affirmed.