author: HALL, Justice.

text:
    LULING OIL & GAS CO. v. MAGNOLIA PETROLEUM CO.
    No. 5392.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 21, 1939.
    Rehearing Denied Jan. 11, 1940.

      R. T. Jones, of Henderson, and George Cannon and C. W. Trueheart, both of San Antonio, for appellant.
    Roy C. Ledbetter and W. H. Francis, both of Dallas, Brachfield & Wolfe, of Henderson, Thompson & Barwise, of Fort Worth, and P. A. Sanders, of Nacogdoches, for appellee.
   HALL, Justice.

Appellant, plaintiff below, brought this suit in trespass to try title in the District Court of Rusk County against appellee and others for title and possession of the ⅞ leasehold interest in 10.67 acres of land, a part of the McCabe Survey located in said county. Situated on the disputed tract of land are three producing oil wells. It was alleged by appellant, hereinafter referred to as Luling, that the judgment in the cause of Still v. Barton, No. 8718, theretofore rendered by the District Court of Rusk County and affirmed on appeal, fixed the division line between the leasehold claimed by the parties to this appeal. Still was the fee owner of the 100 acres, more or less, to the north which ap-pellee, hereinafter referred to as Magnolia, held a mineral lease; and Barton was the fee owner of the sixty acres, more or less, joining Still on the south, on the north fifteen acres of which Luling claimed a mineral lease. Neither Luling nor Magnolia were parties to that suit, but Luling alleged “both plaintiff (Luling) and defendant (Magnolia) if not nominally parties to said final judgment (Still v. Barton) were nevertheless virtually represented in said cause wherein the north line of the Virgil Barton tract was adjudged as here-inbefore shown and said judgment is still conclusive against them as to its location on the basis of res adjudicata and also upon the basis of judicial estoppel”; that the Magnolia connived with the plaintiffs in the Still v. Barton suit, and “that they (Magnolia) had full knowledge of said suit, that they (Magnolia) were one of the instigators of said suit, and that they (Magnolia) furnished financial and legal assistance in the prosecution of said suit, and were actually, secretly, if not openly, a party thereto.” It was also alleged by Luling that the judgment of the appellate court in the case of Still v. Barton, No. 8718, hereinafter referred to as the Still-Barton judgment, was stare decisis of the location of the dividing line between their respective leaseholds.

The Magnolia answered by general denial, plea of not guilty, and specially pleaded the 3, 5, 10, and 25 years statutes of limitation with respect to their leasehold, and alleged: “That the defendant relied upon title to it and recognition by the plaintiff and its predecessors in title of the fence built about 1927 as a boundary line between the oil and gas leasehold estates claimed by the plaintiff and this defendant. That on Or about July 8, 1932, the plaintiff, Luling Oil & Gas Company, entered into a settlement and judgment in cause No. 8718 and 9366, severed therefrom, recognizing and agreeing to such boundary line between the leasehold estates as being along said fence. That in such settlement the plaintiff agreed to such line and in addition allotted the F. A. Taylor and P. A. Sanders a 2.34 acre tract of the leasehold south of such fence in return for a settlement of a claim of plaintiff to its leasehold on the two remaining tracts of 2.34 acres just to the east and to the west'of said tract allotted to F. A. Taylor and P. A. Sanders, all of which tracts were south of the fence built in 1927. That the plaintiff, Luling Oil & Gas Company, prior thereto and at said time and subsequent thereto was not claiming any oil and gas leasehold north of said fence, but the parties with whom said Luling Oil & Gas Company settled the leasehold estate were claiming a tract south of said fence.”

It also' alleged improvements in good faith. By cross action Magnolia brought a trespass to try title action against Luling, and also relied upon the several pleas of limitation unde.r statutes.

By trial amendment Luling alleged: “In the alternative, that if defendant Magnolia Petroleum Company or defendants Taylor, Sanders and Still (parties joined as defendants with Magnolia but not parties to this appeal), were otherwise entitled to recover any part of the area described and identified by their respective cross actions, then plaintiff says that on or about July 8, 1932, it was lawfully seized and possessed of the oil and gas leasehold estate, claiming same under judgment of that date in cause No. 9366, styled F. A. Taylor et al v. Luling Oil & Gas Company, by virtue of which it acquired all such title then held by the defendants F. A. Taylor and P. A. Sanders, in addition to the title claimed under V. H. Barton as asserted in its second amended original petition in and to the following two described tracts of land.”

Then follows a description of the two small tracts of land recovered under the judgment referred to above, and which judgment will be referred to as the judgment in severed cause, which, together with the Still-Barton judgment, will be discussed hereafter. At the close of the testimony the district judge instructed a verdict for Magnolia. Judgment was entered for Luling, however, for the two small tracts claimed by it immediately south, and for the Magnolia for the disputed leasehold north of the line marked J-K, the “old fence” on the following plat:

In November 1930, the leasehold covering' C. C. Still’s 100 acres of land was assigned to the Magnolia. On June 12, 1931, D. E. Jernigan and wife, remote grantors and former owners of the Still 100-acre tract, by quitclaim deed conveyed to Dr. J. R. T. Barton whatever, interest they owned, whether by deed or by limitation, in excess of the 100 acres previously conveyed by them to F. A. Taylor and now owned by Still. On June 26, 1931, Dr. Barton conveyed all interest acquired by him from Jernigan and wife to the Magnolia. On July 14, 1931, F. A. Taylor and P. A. Sanders assigned an oil and gas lease ■to Magnolia covering fifteen acres called to be off the south end of the Still 100-acre tract which they had theretofore on April 16th received from C. C. Still and wife and which included the same leasehold in controversy here as described in Luling’s amended petition. On July 15, 1931, Magnolia by quitclaim deed assigned to F. A. Taylor and P. A. Sanders all leasehold interest of the “original lessee” covering the land lying south of the line marked “old fence” on the plat, and all interest it had in the land itself lying north of the “old fence and designated on the plat F-C-J— K-L, amounting to fifteen acres, reserving-to itself the ⅞ mineral leasehold estate in. said tract F-C-J-K-L as shown on the plat. This quitclaim deed from Magnolia to-Sanders and Taylor described last above contains the following recitation: “The-acceptance of this deed shall constitute on. the part of the grantee, his heirs and assigns, a relinquishment of any right, title,, and claim to. the oil, gas and mineral leasehold estate in and to the land covered by the grantors lease or leases lying North of said line as herein defined.” The above assignments and quitclaims were duly filed for record and included within their description the land in controversy here.

Luling’s leasehold comes from V. H. Barton and wife, fee owners of the sixty acres, more or less, shown on the plat, through assignment from H. K. Spear and the judgment in the severed case No. 9366. .

On August 13, 1931, C. C. Still, F. A. Taylor and P. A. Sanders filed suit in the District Court of Rusk County in the form of trespass to try title against V. H. Barton and numerous other persons, including the Luling, for title and possession of a tract of land including the same land in controversy here, said suit being numbered 8718 (Still-Barton suit), and in February 1933, judgment was rendered by the district court in that suit fixing the division line between the Still 100-acre tract on the north and the Barton 60-acre tract on the south, as C-G on the plat. On appeal, that judgment was affirmed October 11, 1934 (Tex.Civ.App., 76 S.W.2d 783), and writ of error was dismissed February 13, 1935. Thus was fixed permanently by judgment in that case the division line between the fee owners of the Still 100-acre tract on the north and the Barton 60-acre tract on the south. On June 25, 1932, Luling, F. A. Taylor, and P. A. Sanders filed their joint motion for severance in cause No. 8718, alleging therein “That the said plaintiffs (Taylor and Sanders) on the one hand and defendant (Luling) on the other, are the claimants to the entire oil and gas leasehold estate (⅞ working interest) in and to the following described portion of the land involved in this action.” Then follows a description of the leasehold shown as Y-JK-H on the plat which includes the land lying between the “old fence” and the diagonal line L-Y claimed by Sanders and Taylor through assignment from Magnolia and being a part of the land involved in this suit. In said motion to sever it was alleged, further:

“That no other party to this suit, either plaintiff, defendant or intervenor, have or claim any character of interest in and to the oil and gas leasehold estate in said land, specifically described above; and the mov-ants herein are the sole and only persons who have or claim any interest in the said oil and gas leasehold estate.
“That a separate and distinct cause of action and controversy exists as' between the parties to the Motion as to said Oil and Gas Leasehold Estate, and the issues and cause of action between movants herein may be severed from the remainder of this suit, and the parties to this Motion allowed to dispose of the same as may appear proper as may be required under the circumstances; and that such separate and distinct cause of action and controversy may be more effectually tried and • determined by separately trying the same, inasmuch as no other party to this suit has or claims any right or interest in and to the Oil and Gas Leasehold Estate on said 9.81 acre tract, above described; and inasmuch as the cause of action and controversy between movants herein, involving said Oil and Gas Leasehold Estate, is wholly unrelated to the claims, rights and titles asserted by the other parties to this suit.”

On the same day the court granted the motion of severance, finding in part: “And the court having heard the evidence offered in support of said Motion, and having fully inquired into the same, and having given due consideration thereto, here now finds that no party to this suit, except those joining in said Motion, has or claims any character of interest in and to the Oil and Gas Leasehold Estate in said 9.81 acres of land, and that the issues and controversy between said movants, involving said Oil and Gas Leasehold Estate, are severable from the remainder of this cause of action.”

The severed cause was by the court ordered docketed as a separate cause of action to be numbered 9366 and styled F. A. Taylor et al. v. Luling Oil & Gas Company. On the same day, June 25, 1932, judgment was entered in the severed cause, which was amended July 8, 1932, dividing the land south of the “old fence”, Y-J-K-H, into three equal tracts, numbered 1, 2 and 3, on the plat, Numbers 1 and 3 being adjudged to Luling and Number 2 being adjudged to Sanders and Taylor. The description of tract No. 3 being as follows:

“East One-Third: 2.34 acres of land out of the 6.72 acres Still-Barton tract, a part of the Meredith McCabe Survey in Rusk County, Texas, and described by metes and bounds as follows:

“Beginning at a stake on the South side of creek where the present fence intersects the.East line of the Mary Ann Wilcoxon 200 acres homestead tract, 1878 feet South of the N. E. corner of the C. C. Still 100 acre tract, witnessed by S. G. 24" dia. ‘X’; thence S 89 Degs 24' W with said fence 342 feet to stake for corner; thence S O degs 46' W 270 feet to the South line of said 6.72 acres tract; thence N 89 degs 24' East 342 feet to V. H. Barton’s East line; thence N O degs. 46' E 270 feet to the place of beginning, containing 2.34 acres of land, more or less.”

After the judgment in the severed cause was entered Luling had no further connection with cause No. 8718 in the trial court. It is undisputed that Luling’s attorneys gave assistance to the appellees in that case in the appellate courts and that it, Luling, contributed $200 towards the expense of the Still-Barton case. Although alleged that Magnolia was a virtual party to the Still-Barton suit No. 8718, there is no evidence in this record in support of said allegation, and we think it can be said from the record as a whole that Magnolia was not connected directly or indirectly with the prosecution or defense of the Still-Barton cause No. 8718.

Each party to this appeal contends that it was entitled to an instructed verdict; that the rights of each were fixed under all the facts as a matter of law. The lower court shared this latter view, and in this we think it was correct. The question, then, is: In whose favor should the instructed verdict have been given? A correct answer to this question will undoubtedly be decisive of the controversy here. Stated' another way, the Luling contends that the Magnolia is estopped in this action by the judgment in the Still v. Barton case, No. 8718; and the Magnolia contends that the Luling is estopped by the judgment in the severed cause, No. 9366.

In our opinion, the Still-Barton judgment is not binding on the Magnolia in establishing the south boundary line of its leasehold for two reasons: (1) It-was not* party to that judgment, either directly or indirectly; and (2) that'judgment was not rendered until some seventeen months subsequent to the date of the last transfer, that of Taylor and Sanders, of the disputed leasehold into the Magnolia. Freeman on Judgments (S Ed.) vol. 1, sec. 440, par. '966. There can be no doubt but that the Still-Barton judgment was effective in fixing the dividing line between Still’s land on the north and Barton’s land on the south, and was therefore binding upon them as fee owners and their privies who acquired an interest in their lands áftér the date of that judgment.

Then the question is, What was the effect o'f the severed judgment, No. 9366, between Taylor, Sanders, and Luling, rendered some six or seven months before the judgment in the Still-Barton suit, on the subject matter of this cause? It was stated in their joint motion to sever that they were the only parties to the Still-Barton suit, No. 8718, who claimed an interest in the leasehold in the land south of the “old fence” involved in that suit. In the Still-Barton suit, No. 8718, it was alleged, in the original petition as well as the first amendment thereto, both filed before cause No. 9366 was severed, that C. C. Still was the owner of the fee simple title and P. A. Sanders and F. A. Taylor were the owners of the minerals and leasehold rights in and to the land in controversy amounting to fifteen acres of land off the south end of the Still tract and which included the tract in controversy in this suit and the land included in the severed suit north of line L-Y on the plat. The description of the land in the severed suit, the leasehold rights to which was adjudged by the severed judgment, has as' its north line K-J, marked “old fence” on the plat, and constituted the north boundary line of the leasehold then claimed by Luling. It must be remembered that the act of severance was voluntary on the part of Luling, and after the severed judgment was entered it was dismissed from the Still-Barton case. The present suit is between the same parties named in the severed judgment with the Magnolia added, and has for its purpose the fixing of the- north boundary line of Luling’s leasehold. This time it is sought to fix it at C-G on the plat. The Magnolia, as-signee of Taylor and Sanders of the leasehold in controversy, urges that Luling is estopped by the severed judgment fixing .the “old fence” shown on the plat as its north line and can not again come into court and insist that its north line is at C-G on the plat and not the “old fence” as found by the severed judgment.

With this contention we agree. In Mr. Freeman’s very famous work on Judgments (5 Ed.) vol. 2, p. 1462, Sec. 692; it is said: “It is not necessary to the conclusiveness of the former judgment that the issue should, have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment.” And the same author in the same volume at page 14S2 says: “The judgment estops the parties as to all issuable matter contained in the pleadings, though not issuable in the technical sense. It is conclusive as to all matters within the scope of the pleadings which are material and relevant and were in fact determined.” And further, at page 1466 of the same volume it is said: “Where an adjudication is predicated upon the existence or nonexistence, or the validity or invalidity of a contract, deed or similar instrument, it is ordinarily regarded as res adjudicata upon this matter when the same issue arises in a subsequent action though upon a different cause of action based upon the same contract or one of the same series. And the same is true with respect to an adjudication based upon a particular construction of such a contract or instrument.”

Cited in support of the above text is the case of Shook v. Shook, Tex.Civ.App., 145 S.W. 682, 699, 703, wherein it is said: “ * '* * Whether the property in question in this suit was the separate property o-f Carrie B. Shook or the community property of herself and her husband, J. O. Shook, was a question to be determined in the divorce suit, and if the defendant, J. O. Shook, had any claim against the community estate of himself and wife or lien against said property for community funds expended by him in the erection of improvements thereon, such claim might and should have been pleaded, and, if it was not, the judgment rendered in said suit definitely and finally negatives the existence of any such claim, and bars a subsequent action upon it. . To hold such a claim against the wife in reference to the common property or her separate lands, which was known to exist and which entered into and affected the very matter in controversy, and not assert' it in a suit for partition, ‘would be inconsistent with, what was there determined.’ This view is sustained by the case of Moor v. Moor, 31 Tex.Civ.App. 137, 71 S.W. 794, in which a writ of error was denied by the Supreme Court. That the plaintiff’s claim, however, to a lien upon the property in controversy to secure a reimbursement of his one-half of the amount of the community funds expended in building the house upon said property was directly put in issue in the divorce suit is manifest from the allegations of his petition filed in this suit, and he was properly denied the right by the action of the district court to relitigate that matter in this action.” (All italics ours.)

See also Whitaker v. McCarty, Tex.Com.App., 221 S.W. 572; Metropolitan Life Ins. Co. v. Pribble, Tex.Civ.App., 130 S.W.2d 332, writ refused; Tompkins v. Hooker, Tex.Civ.App., 200 S.W. 193; Cooper v. H. L. Hunt, Tex.Civ.App., 87 S.W.2d 763; Carter v. Bade, Tex.Civ.App., 94 S.W.2d 817, writ dismissed; Loving County v. Higginbotham, Tex.Civ.App., 115 S.W.24 1110, writ dismissed; Bauer v. Taylor, Tex.Civ.App., 118 S.W.2d 826, writ refused, and cases there cited.

When the pleadings in the Still-Barton case together with the agreed motion to sever are looked to, it is clear that one of the principal objects sought to be accomplished in said severed suit was the fixing of a north boundary to the leasehold interest of Luling in the land in controversy in the Still-Barton suit. And when this was accomplished and the compromise effected by the severed judgment, Luling was dropped from the Still-Barton case, but the other parties to the severed judgment, Sanders and Taylor, continued their connection with that case. For Luling to secure .relief in this case, it would be necessary to change the north line of its leasehold as fixed by the severed judgment at J-K, “old fence” on the plat, to a line still further north' shown as C-G on the plat. This, of course, would put that issue, that is, the north boundary line of its leasehold, to trial twice between the same parties and their privy (Magnolia), and would result in overturning by a judgment in' this case the judgment of the District Court of Rusk County in the severed cause. Undoubtedly the judgment rendered in the severed cause was the result of a compromise, as shown upon its face, but that fact would not detract from its binding force.

“The fact that the particular decree (the severed judgment in this instance) was rendered in a friendly litigation where no real contest took place is of no importance. The conclusiveness of the adjudication depends upon the source from which it came and the same is determined, and not upon the violence of the controversy. If the parties by their agreements and confession dispensed with the necessity for offering an array of evidence the issue to be determined was not for that reason robbed of its importance or altered in its nature. Tompkins v. Hooker, supra, citing Richardson v. Trout, Tex.Civ.App., 135 S.W. 677; Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 687, 15 S.Ct. 733, 39 L.Ed. 859.”

There can be no doubt that Magnolia knew of the severed judgment and interested itself in the entry thereof,' for it is shown without dispute that Wallace Hawkins, attorney for Magnolia, on July 8, 1932, after the original judgment in the severed case of date June 25, 1932, had been entered, drafted field notes to a corrected judgment, which was entered with the consent of Luling’s attorney, reducing the total acreage in- the original judgment from 9.81 to 6.72, and calling for said land to be out of the south portion 'of the east 100 acres, more or less, of the Wil-coxon homestead tract (Still tract). Magnolia acted upon the corrected judgment. Immediately after its entry it paid to Sanders and Taylor the balance of the purchase price for the leasehold theretofore conveyed to it by them.

As evidence of the claim of Luling the record shows that on August 11, 1931, eleven months before entry of the judgment in the severed cause, it made application to the Railroad Commission for permit to drill two wells on its small tract of - land lying south of the “old fence”, and on its plat accompanying said application it shows the land lying to the north of the “old fence” on our plat as belonging to C. C. Still, and the oil well 175 feet north of said “old fence” as belonging to Magnolia. Said plat also shows that in this same tract the acreage called for is 15.5 but the “actual” acreage is 6.72, the exact amount of acreage called for in the three blocks Nos. 1, 2 and 3, later awarded to the parties in the corrected judgment in the severed cause. On July 16, 1932, eight days after entry of corrected judgment in the severed cause, a second application was made by Luling to the Railroad Commission for permit to drill its first well on tract No. 3 awarded to it by the judgment in the severed cause (the first application of August 11, 1931, having been withdrawn), and on the plat accompanying said application the leasehold north of the line marked J-K, “old fence” on our plat, is designated “Magnolia Petroleum Company (C. C. Still lease)”, and oil well No. 4, 175 feet north of said “old fence” is also shown. On October 4, 1932, application to the Railroad Commission for permit to drill well No. 2 was made by Luling, and on the plat accompanying that application is shown “Well No. 1 Magnolia Petroleum Company” which is shown to be 175 feet north of “old fence” on our plat. On October 5, 1932, Hon. Thomas Y. Banks, attorney of Tyler, Texas, representing Luling at the time of entry of the judgment in the severed cause, and whose employment continued until early in 1933, wrote the following letter to the Oil and Gas Division of the Railroad Commission:

“Banks & Banks “Attorneys and Counsellors
“Tyler, Texas.
“October 5, 1932.
“Railroad Commission of Texas,
“Oil & Gas Division,
“Austin, Texas.
“Attention: Mr. J. T. Elliott.
“Gentlemen:
“In regard to the application of Luling Oil & Gas Company for Well No. 1 Virgil Barton 2.34 acres out of the Meredith Mc-Cabe Survey, in Rusk County, Texas, we beg to hand you herewith a new application to take the place of the first application from which you will note that the well has been relocated in the center of the tract.
“As to the owners of the leases off-setting the location of Well No. 1, Magnolia Petroleum Company is a lease owner to the North, East and South, and T. W. Murray of Overton, Texas, is the lease owner to the West.
“We also inclose herewith application for well No. 2, Virgil Barton Tract, frleredith McCabe Survey, Rusk County, Texas, comprising 2.34 acres, and which is located on a separate tract from Well No. 1, as you will note from the plat. The off-set lease owners of Well No. 2 are Magnolia Petroleum Company on the North and South, and T. W. Murray of Overton, Texas, on the East, and 'Humble Oil & Refining Company on the West.
“It is my understanding that at the time of the granting of a permit for the drilling of a well No. 1 on the T. W. Murray Tract, the matter of ownership was very thoroughly gone into.
“Yours respectively,
“Thomas Y. Banks, “Thomas Y. Banks.
“Received Oct. 7, 1932.
“TYB :JHF Oil & Gas Division.” “Enclosure.

When Banks as attorney for Luling wrote the above letter he was in possession of a supplemental abstract and had been for more than a month, which supplemental abstract showed all assignments and quitclaims to the Magnolia of the land north of the line marked J-K, the “old fence” on our plat.

The first application for permit by Luling of August 11, 1931, nearly eleven months before judgment in the severed cause wherein it is stated that actual acreage owned by Luling in the McCabe Headright was 6.72 acres, the exact amount awarded by the corrected judgment in the severed cause, was a clear admission by it that the extent of its leasehold interest in that vicinity amounted to just that acreage and no more. And the other applications by Luling for permits to drill oil wells Nos. 1 and 2, and the plats accompanying same, together with the letter by its attorney, Banks, to the Railroad Commission after the entry of the corrected judgment in the severed cause and while he was in possession óf the supplemental abstract showing all claims of the Magnolia, show the extent of Luling’s claim both before and after the entry of the severed judgment, and also shows the construction it placed upon said judgment in fixing line J-K, the “old fence”, as the north line of its claim. While Luling’s construction of the severed judgment would not change the meaning of its clear and unambiguous terms, it would form the basis of an estoppel very effectively when, as' in this case, it is shown without dispute that immediately after the entry of the judgment in the severed cause, as before stated, and on the strength thereof, the Magnolia paid the remaining purchase price to Taylor and Sanders for their claim north of the line marked J-K, the “old fence” on our plat. And all these circumstances taken in connection with the testimony of Smith, vice-president and treasurer of Luling, during the period covered by all these transactions, and especially while Magnolia was drilling some of its oil wells north of the “old fence” and on the land here in dispute before this case was filed, to the effect that he saw Magnolia drilling some of its wells and made no protest, is sufficient, in our opinion, to work an estoppel against Luling, aside from the force of the severed judgment, from claiming any leasehold interest north of line J-K, the “old fence” shown on our plat.

“The practical interpretation which the parties, by their conduct, have given to a written instrument in cases like this, is always admitted, and is entitled to weight. There is no better test of the intention of the instrument. None are less likely to be mistaken. There is no danger of too large an admission. Safer testimony can hardly be presented in the relation to any transaction occurring in human affairs.” Cavazos v. Trevino, 73 U.S. 773-775, 785, 18 L.Ed. 813, 815.

But we do not base our holding in this case on estoppel aside from the judgment. It is our opinion that under the undisputed testimony in this record and the circumstances surrounding the parties, that Luling is estopped by the corrected judgment in the severed cause entered July 8, 1932, from now asserting that its leasehold interest extends north of the “old fence,” which is the north line fixed in that judgment. And for this reason it is our opinion that the trial court was correct in peremptorily instructing the jury in favor of Magnolia Petroleum Company. The conclusion expressed above renders a discussion of the other assignments brought forward in this appeal unnecessary.

The judgment of the lower court is in all things affirmed.


source: Caselaw Access Project

author: ALEXANDER, Justice.

license: Public Domain

text:
    SERVICE MUT. INS. CO. v. BLAIN.
    No. 2190.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1939.
    Rehearing Denied Jan. 11, 1940.
    Scott & Wilson, of Waco, for appellant.
    George Clark and Charles Mooney, both of Waco, for appellee.
   ALEXANDER, Justice.

This is a workmen’s compensation case. W. A. Blain was the employee. Jones Fine Bread Company, Inc., was the employer, and the Service Mutual Insurance Company of Texas was the insurance carrier. A trial before a jury resulted in judgment in favor of the employee. The Insurance Company appealed.

There was evidence that the employee had worked in repairing a bread mixer from 8 o’clock A. M., on May 5, 1938, until 4 o’clock A. M., of the following morning; that this work required him to lift many heavy objects and in close proximity to the ovens used in the bakery, and, as a result, the employee was subjected to extreme heat; that after finishing this particular job the employee rested fúr a short while and was then put on another job repairing an elevator motor; that this work was done in a penthouse in very close quarters on top of the building where it was extremely hot; and that as a result of this work and the extreme heat to which he’ was subjected, the employee suffered an injury to his heart which totally and permanently disabled him.

The jury,' in answer to special issues, found that on May 6, 1938, the employee suffered an accidental injury to his heart— called a heart block — while working for the. employer in-the course-of his employment, as a direct result of over-exertion in such work. The appellant contends that the evidence was insufficient to support the verdict .and that the trial court should have given an instructed verdict in its .favor. We are of the ' opinion that the evidence was sufficient to take the case to the jury,'.but, .in view of the fact .that the judgment must be reversed for other reasons, we deem further discussion of this question unnecessary at this time.

■ -There was evidence that the employee had.suffered from a similar disability while .working in the state of Oregon in the year 19.37, and it was contended by the Insurance Company -that .his present disability -was.due to,the old injury, or to a diseased condition of his body, and not to any injury sustained by him in the course of his employment while working for this particular employer. The evidence before the jury left the question in dispute. The .employee, .relied largely on the testimony of Dr. Coffelt to sustain his contention that he had suffered an injury to his heart on the occasion in question. The Insurance Company did not offer any medical testi.mony to the contrary. There was evidence- that the employer’s superintendent, Mr. Horne, had called Dr. Catto, a local physician, to treat the employee when he first became ill at the bakery. There was also evidence to the effect that after this suit had been filed, the claim adjuster for the Insurance Company had called on Dr. Catto and discussed the case with him, but there was no evidence that Dr. Catto was an employee of the Insurance Company .or otherwise under its control. With the record in this condition, counsel for the appellee made the following argument to ' the jury: “Dr. Coffelt tells you that in the examination he made of this man he could demonstrate an injury to the heart ' just as definitely and certainly as he could demonstrate a b'foken arm. Has it been refuted? There are other doctors that saw the man. His family doctor referred him to an expert. If you are unwilling to take his word, Mr. Scott — if you are not willing to take the word of this expert to whom his family doctor referred him, the Service Mutual Insurance Company, if you are not willing to take the word of a sworn expert who has duly qualified and is .un-impeached, and is not shown to be anything except a reputable, qualified expert on such conditions, why, oh why don’t you bring in some testimony to -refute it, if you want to face this jury and ask them to disbelieve it. * * * Dr. Coffelt tells you that that man has a positive injury to his heart, and that he can demonstrate it just as definitely as he can demonstrate an injury to the arm, or a broken arm. I am not an expert on heart conditions or injuries, and the only way I know to find out about that is to get an expert, a man, such an expert that his family physic-ian thought it advisable, gentlemen, to refer him to. If you don’t want to accept the sworn testimony of Dr. Coffelt, why haven’t you brought in Dr. Catto, who was sent out to the hospital to see this man .by Mr. Horne? * * * He examined him. He is here in town. Why don’t you bring him in, if you dont want this jury to believe this man has sustained an injury to his heart out- there. * * * Dr. Coffelt tells you that if that man had suffered a heart block in Oregon in his condition, he would not have been able to work. He says he can’t do it, and I am saying that is his professional opinion. If they don’t want to accept his professional opinion on that matter, there are other • doctors in town. Why don’t you get one of them to come in here, if you want the jury to disbelieve that testimony?”

Counsel for appellant objected to the above argument at the time it was made and the trial court overruled the objection. In the case of Lottman v. Cuilla, 288 S.W. 123, 124, the Commission of Appeals had before it a case in which the disputed issue was whether the accidental injury to plaintiff had occurred on a sidewalk in front of the defendant’s place of business. The plaintiff had so testified. There was evidence that one Walker had given aid to her at the time and place of her injury. Walker was, summoned by the plaintiff as a witness but did not arrive until after the plaintiff had closed her case and hence was not given an opportunity to testify. The defendant rested- without introducing any evidence. A judgment for the plaintiff in that case was reversed because ' counsel for plaintiff made the following argument to the jury: “If the defendant had any doubt about the place knowing that Walker was a witness, they would have ascertained whether he fixed the place at the same place Mrs. Cuilla did or not, and, if it was not at this place, Mr. Walker would have been here testifying _ for them that it was at another and different place. * * * Yes, Mr. DeLange, you may have your bill; but you cannot mislead this jury, and undertake to make them decide that this injury did not occur in front of your client’s property, by attempting to have them guess at it, when you knew Walker had been summoned as a witness in this case, and that he was familiar with the place, and, that, if it was not in front of that property, you • could prove by him it was not, and you would have done it. Why didn’t you place him' on the stand, and have him give the jury his version, and not ask the jury to guess at it?”

In reversing the case, the court said: “The effect of the argument clearly was to invoke the aid of the supposed testimony of Walker, in corroboration of plaintiff.”

While we do not fully agree with the holding of the Commission of Appeals in the above case, we do feel that we are bound thereby, and, for that reason, must reverse the judgment of the lower court on account of the argument here complained of. See, also, the following cases in support of appellant’s contention: Traders & General Insurance Co. v. Crouch, Tex.Civ.App., 113 S.W.2d 650, par. 9, and authorities there cited; Liberty Mutual Insurance Co. v. McDaniel, Tex.Civ.App., 102 S.W.2d 493, 497, par. 4; San Antonio Public Service Co. v. Smith, Tex.Civ.App., 57 S.W.2d 179, par. 1.

The testimony showed without dispute that the injured employee at the.time of his injury, if any, was working in a bakery without having in his possession a certificate of good health, as required by Vernon’s Penal Code, Art. 705c. In the case of Traders & General Insurance Co. v. Rogers, Tex.Civ.App., 119 S.W.2d 679, the Fort Worth, court held that such a state of facts barred a right of recovery to an employee for injuries sustained in the course of his employment, but the Supreme Court granted a writ of error in that case and has not yet decided the question. It would serve no useful purpose for us to discuss the question'at this time; and consequently we refrain from doing so. The question will likely be decided by the Supreme Court before the case reaches us again.

On account of the error above referred to, the judgment of the trial court is reversed and the cause is remanded for a new trial.

TIREY, J., took no part in the consideration and disposition of this case.


text:
    DE-VELIN v. CARTER.
    No. 2174.
    Court of Civil Appeals of Texas. Waco.
    Jan. 4, 1940.
    Rehearing Denied Jan. 25, 1940.

      A. Jack Pope, Jr., of Corpus Christi, for appellant.
    J. Marvin Ericson, of Corpus Christi, for appellee.
   ALEXANDER, Justice.

This suit was brought by Bob Porky De-Velin against Hendrick Carter for the sum of $504.00, alleged to be due the plaintiff as a watchman for guarding a drilling rig belonging to the defendant. The defendant denied employing the plaintiff and claimed that he had been employed by one Coward, who seemed to be interested in the lease where the' drilling rig was situated. The jury found that the defendant had not employed plaintiff to guard the drilling rig, and judgment was entered for the defendant. The plaintiff appealed.

The plaintiff’s sole complaint is that the defendant was permitted to elicit certain alleged improper evidence from plaintiff on cross-examination. The plaintiff testified, without objection, that prior to the date of the trial he had been employed as a physical educator, training fighters and wrestlers and dancers at a dancing marathon. The defendant then asked the witness: “How long had you been working at that marathon over there?” to which plaintiff objected on the ground that it was irrelevant and immaterial. The question was not answered. In view of the fact that the witness had previously testified without objection to his connection with the marathon, his rights were in nowise prejudiced by permitting the defendant to inquire how long he had been engaged in such business, particularly where the question was never answered.

Plaintiff also complained because the defendant was permitted, on cross-examination, to ask plaintiff if at one time he had had a medical doctor’s license, to which the witness answered that- he had. S.ome further questions were asked as to when he quit practicing medicine, ■ but the witness was unable to remember the date.There is nothing- particularly inflammatory about this testimony such as to require a reversal of the judgment.

The plaintiff voluntarily testified, on direct examination, without- objection from either party, that on the day prior to the trial he had traveled from Bruni, Texas, to Corpus Christi, Texas, where the case was on trial, on a freight train. On cross-examination counsel for defendant asked him if he did not know that it was a violation of the law for him'to ride a freight train. The plaintiff objected on the ground that the witness was not qualified to answer the question. The court overruled the objection, but the question was never answered. Apparently, the plaintiff volunteered the information about his having ridden a freight train for the purpose of calling attention to his poverty and thereby eliciting the sympathy of the jury. Having volunteered the information, he has no right to complain if defendant was permitted to make further inquiry into the same matter.

It is readily apparent that no reversible error is presented by any of the assignments above discussed. The judgment of the trial court is therefore affirmed.


author: TIREY, Justice.

text:
    STANFORD et al. v. CHAMBLISS.
    No. 2184.
    Court of Civil Appeals of Texas. Waco.
    Jan. 11, 1940.

      Arthur R. Eidson, of Hamilton, for appellants.
    Allen & Allen, of Hamilton, for appellee.
   TIREY, Justice.

On October 6, 1938, George Chambliss ■filed suit in the County Court of Hamilton county against Joe Stanford on verified .account for the sum of $224.84, interest and costs of suit. Defendant seasonably filed .a denial under oath. Thereafter Chambliss • caused writ of attachment to be issued and .levied on an automobile of defendant, Joe Stanford. The defendant seasonably executed and filed his replevy bond for the .automobile. Thereafter on December 1, 1938 the case was tried before the court without the intervention of a jury and judgment was rendered for plaintiff against Joe Stanford and the sureties on his re-■plevy bond for the sum of $232.26, together with all costs of suit. The defendant in open court excepted to the judgment and .gave notice of appeal to this court. The defendant and his sureties duly executed and filed supersedeas bond and thereafter seasonably caused to be prepared and filed -a transcript and statement of facts in this • cause.

There are no bills of exceptions, save .and except the exception noted in the judgment entered in the trial court. No -assignments of error were filed in the trial court nor in this court and no brief was filed by appellants. This cause, after due notice, was regularly submitted in this • court on December 7, 1939. The appellee, on November 30, 1939 filed in the trial court his suggestion of delay and asked that this cause be affirmed, with ten per cent damages. This instrument was filed in this court on December 2, 1939.

“It has always been held that the request for damages on suggestion of delay requires the court to examine the entire record for errors, whether assigned or not, and a reversal of the case if any errors are found. Riggs v. Horde, 25 Tex.Supp. 456, 78 Am.Dec. 584; Tidwell v. Starr (Tex.Civ.App.) 42 S.W. [778], 779.” Ramey v. Phillips, Tex.Civ.App., 253 S.W. 323, 327.

We have carefully considered this record. Upon the trial of the cause, the appellee introduced his books and records of appellant’s account without objection. The evidence is ample to sustain the judgment of the trial court. Under Article 1857 of the Revised Statutes, when a cause is affirmed by the Court of Civil Appeals, it is in the discretion of the court to include in their judgment or decree such damages not exceeding ten per cent on the amount of the original judgment as they may deem proper. However, under the conditions stated in Article 1860 of the Revised Statutes, the rule seems to be mandatory. Article 1860 provides as follows: “Where the court shall find that an appeal or writ of error has been taken for delay, and that there was no sufficient cause for taking such appeal, then the appellant or plaintiff in error, if he be the defendant in the court below, shall pay ten per cent on the amount in dispute as damages, together with the judgment, interest and cost of suit thereon accruing.”

After careful consideration, the court is of the opinion that the appeal in question has been taken for delay and that there was no sufficient cause for taking such appeal, and the appellant being the defendant in the court below, the judgment of the trial court is affirmed, with ten per cent damages -as prayed .for by appel-lee. See Granberry v. Mussman, Tex.Civ.App., 90 S.W. 533; Ellis v. National City Bank of Waco, 42 Tex.Civ.App. 83, 94 S.W. 437; Hennessy v. Sheldon, 79 U.S. 440, 12 Wall. 440, 20 L.Ed. 446; Harlan v. First State Bank of Sterling City, Tex. Civ.App., 285 S.W. 694, point at page 695; Marx v. Brown & Co., 42 Tex. 111; Grier v. Powell, 14 Tex. 320; Patton v. First National Bank of Garland, Tex.Civ.App., 1 S.W.2d 501; St. Louis S. W. Ry. Co. of Texas v. Poyner, Tex.Civ.App., 109 S.W. 1004; 3 Tex.Jur. pp. 1132 to 1138 inclusive.

The judgment of the court below is therefore affirmed, with ten per cent of the amount thereof added.


author: BAUGH, Justice.

text:
    EASTERN IRON & METAL CO. v. McMORROUGH.
    No. 8903.
    Court of Civil Appeals of Texas. Austin.
    Jan. 3, 1940.
    Rehearing Denied Jan. 24, 1940.
    Lewis ,E. Bartlett, of. Sherman, for appellant.
    Thos. C. Ferguson, of Burnet, for appel-lee.
   BAUGH, Justice.

Appeal is from a judgment, based upon a special issue verdict, in favor of appellee, predicated upon negligence, against appellant for $550 damages for personal injuries received by him in the course of his employment. Appellant had purchased the materials in an old shoe factory at Marble Falls, in Burnet County, Texas, and was dismantling it. Appellee was one of its employees and the injuries sustained by him were two broken bones in his left foot caused by a pipe falling upon it.

The only contentions made by appellant are: 1. That the verdict of the jury finding it guilty of negligence was: a. without evidence to sustain it; or, b. was contrary to the greater weight of the evidence. 2., That the amount of the damages was, under the evidence, excessive.

Neither of these contentions is sustained. It is not controverted that appellant as employer had in its employ at the time and place in question more than three employees, and that it did not carry workmen’s compensation insurance. In view of the provisions of the statute (Art. 8306, Secs. 1 and 4,- R.C.S.1925), it was only necessary for appellee to show that he received, an injury in the course of his employment, due to the negligence of his employer, and that such, negligence was the proximate cause thereof. Clevenger v. Burgess, Tex.Civ.App., 31 S.W.2d 675, writ refused; 29 Tex.Jur. § 53, p. 101. These issues were submitted to the Jury and found in favor of appellee.

Since the evidence was conflicting we are required to consider only the evidence which will support the verdict, taking it. in its most favorable light. At the time of the injury appellant’s employees were engaged in disconnecting and remov-. ing pipes from the interior of the building. These pipes extended vertically through the floor between an upper and a lower story of the building, and were connected with horizontal pipes both above and below. Two employees of appellant worked in the upper story, and two, including appellee, worked' in the lower story. The foreman was in the upper story directing the work. The usual method, and the one previously pursued, was to first disconnect a pipe at the lower end so that the workmen could step aside and avoi4 danger of a fall of the. pipe; then disconnect it at the upper end and by means of a hoist pull it up through the floor and remove it from the building. ■On the occasion in question, the workmen .above, .under the direction of the foreman, had, without the knowledge of appellee, departed from the habitual method, and had first disconnected the upper end of a pipe about 12 feet long. When appellee disconnected the lower end of the pipe it was thus caused to fall, not being moored above, ■struck appellee’s foot and caused the injury sustained. In view of the method previously followed, one known to 'appel-lee, and the simple process used, it is manifest, we think, that a departure from it by first disconnecting the upper end of the pipe, without- first notifying the workmen below, might naturally and probably result in the very character of injury to the workmen below which was sustained by appel-lee. Consequently, it was foreseeable, and-the jury was authorized to .find that the .act of the employees in the upper story, under the direction of appellant’s foreman, in disconnecting the upper end of the pipe before the lower end of it was disconnected, constituted negligence.

As above stated, under the Workmen’s Compensation Law and .the authorities above cited, defenses "of. assumed risk, contributory negligence, and negligence of .a fellow servant were not available to appellant. ,

The other contention.is that the; damages awarded are excessive,. There is no merit in this. The evidence shows that two bones in appellee’s foot were broken; that his foot was in a cast for 25 days; that he was thereafter compelled to use crutches, for several weeks, and' then a cane; that he was unable to work at all for a period of 2½ months; that he had been earning $2 ,per day; that he, had.incurred $25 for doctors'bills and ’ X-ray' photographs of his foot; that his foot was weakened,'had caused him considerable pain, and had handicapped him in his work after he became able to use it. Under these facts and circumstances, and under the court’s instruction to the jury, not .complained of by appellant, that they could take into considera-: tion all these matters, mental and .physical pain suffered and to be suffered, if any, in the future, and future as well as past diminished earning capacity, i'f any, of ap-pellee in fixing his damages; it is manifest that the- $550 awarded cannot be said :to be excessive. The above- stated items were all’ proper to be considered by the jury in arriving at the amount of the 'damages sustained. See 13 Tex.Jur. § 79, p. 170 ;■ 15 Am. Jur. § 70, p. 477. The judgment of the trial, court will therefore be affirmed.

Affirmed.


author: BROWN, Justice.

text:
    WITCHER et al. v. BURT et al.
    No. 13989.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 1, 1939.
    Rehearing Denied Jan. 26, 1940.

      Kearby Peery, of Wichita Falls, for plaintiffs in error.
    Carrigan, Hoffman & Carrigan and James E. Prothro, all of Wichita Falls, for defendants in error.
   BROWN, Justice.

W. C. Witcher and wife brought suit against Marilyn Millér Burt and husband for personal injuries sustained by Mrs. Witcher in the collision between her automobile and one driven by Mrs. Burt, and for damages resulting to the Witcher car by reason of the accident. The cause was tried to a jury and many issues submitted for determination.

The jury found negligence on the part of Mrs. Burt, proximately causing the collision, and found all issues on contributory negligence in favor óf Mrs. Witcher.

The jury found the damage to the automobile .was $225, but returned the following answers to the issues shown:

“Issue 17: Do you find from a preponderance of the evidence that Mrs. Witcher' suffered any personal injury as a direct and proximate result of the collision in question? Answer: No.
“Issue 18: What amount of money, if any, now paid in cash, do you find from a preponderance of the evidence would reasonably compensate the plaintiff for the injuries, if any, sustained by Mrs. W. C. Witcher, as a direct and proximate result of the accident? Answer: None.”
“Issue 64: Do you find from a preponderance of the evidence that Annie L. Witcher suffers any disability in the use of her right knee? Answer: No.
“Issue 65: Do you find from a preponderance of the evidence that such disability, if any, to the right knee is solely the result of arthritis? Answer: Yes.”

Among the defenses pleaded was that Mrs. Witcher had suffered from arthritis in her knee for some time prior to the accident, and that the condition of her knee was solely due to arthritis.'

On this verdict the trial court rendered judgment solely for the damages to the car, and the plaintiffs below have appealed to this court when their motion for a new trial was overruled.

If we must disregard all of the testimony given by Mrs. Witcher, touching on the bruises she sustained in the collision and the pain and suffering she endured and the difficulty which she says she finds in using the leg that she claims was injured in the collision, because none of such testimony is corroborated and she is the vitally interested witness, nevertheless, we find she is in some measure corroborated in at least one particular, in this: she testifies that she was knocked unconscious and a wholly disinterested witness, who reached her immediately after the accident, said that she had “fainted” and he called to a man who was near by, for whom the witness worked, “to come out there, that Mrs. Witcher had fainted in her car.”

It was no more than natural for such a lay witness, as was this man, Raz Wilson, who appears to be a colored man, to speak of Mrs. Witcher’s unconscious condition as being in a faint.

In fact, if the jury were warranted from the evidence, in finding that Mrs. Witcher merely fainted, it could not be reasonably said that such a condition was not brought about by the shock of the collision, and it cannot be reasonably concluded that such a shock, producing such effect, is not some personal injury.

But going further into the evidence, we find that the defendants introduced as a witness a physician of their selection, who examined Mrs. Witcher, at their request, and he testified to facts which show that Mrs. Witcher sustained some injury in the accident.

We cannot agree with appellees in their contention that this witness’ testimony was brought out by and was given in answer to a mere hypothetical question, which the jury may have discarded, in that they did not accept the facts of the hypothesis as true. We do not find the doctor denying the facts stated in the hypothetical question, nor do we find that he gave his. testimony as being bottomed solely on the hypothesis.

Let us give the record to illustrate what we find.

After testifying that Mrs. Witcher was suffering from arthritis, which appeared to be a case of long standing — one, we will say, that obtained before the accident — the doctor said that a traumatic injury to the knee, in which arthritis was present, would tend to aggravate the disease and make it worse. Then he was asked: “Now, if Mrs. Witcher had been able to walk up and down stairs without any difficulty, and had been able to do her housework prior to the time of this injury, and after the injury, say for a period of from December 20th to today, nearly a year, if her knee continued to bother her, would you say that was a permanent condition that might be attributed to the accident, or at least in part to the. accident; in other words, if she was in condition to walk up stairs without any complaint before the 'accident and without any noticeable pain in her knee, and after the accident for one year her knee continued to trouble her, and as you said she was afraid of it, and it pained her some, would you say it was due in part to the accidental injury?” And the doctor answered: “I think the accident aggravated the condition, yes, sir.”

To further show that the doctor meant to testify that in his opinion the accident aggravated the condition of the knee, this question and answer appear: “I am not going to ask you to say whether it (the arthritis) was caused by the injury; I believe you testified the accident accelerated the previous arthritis? Answer: Yes, sir.”

The doctor had testified that Mrs. Witcher had a 25% disability to her knee and that such condition is permanent.

The following also appears from the cross-examination of the doctor: “Now, doctor, in your report of June 11th, you say that your conclusion is that the principal trouble is arthritis, and that has been somewhat accelerated by the accident, and you didn’t think that would make an improvement over the present condition, in other words, you felt like the condition on June 11th would be permanent? Answer: Yes, sir, I think so.”

The only evidence introduced by the defendants, seeking to contradict the testimony given by Mrs. Witcher covering the bruises and injuries she received in the collision, comes from the lips of Dr. Everett Jones, a witness for the defendants, whose personal examination of Mrs. Witcher was made several months after the accident. Admitting for argument’s sake that the doctor’s testimony is sufficient to raise an issue as to any injury to Mrs. Witcher’s knee, and that the jury was warranted in wholly disregarding Mrs. Witcher’s testimony concerning such issue, there is absolutely no evidence in the record raising any issue as to the bruises received by Mrs. Witcher and the fact of her fainting, or being knocked unconscious, and as to her physical pain and suffering, and we do not find where there are in evidence any' suspicious circumstances which might shed light on Mrs. Witcher’s testimony and furnish the jury an opportunity to wholly disbelieve and disregard it.

The fact that she went to the clinic or hospital (where Dr. Jones treats his patients) for an X-ray examination, a few days after the accident, is some corroboration of her testimony, and no person who examined her, or who was present at such examination, testified denying her statements as to bruises of which she complains.

We must assume that' these witnesses were available to the defendants, in the absence of any proof excusing their absence.

Dr. Jones, who testifies that she came to the hospital, did not see her at that time and made no examination of her.

We do not believe that the jury was warranted in wholly disregarding the testimony and in saying that Mrs. Witcher received no personal injury in the accident.

Such cases as Clark v. Spurdis, Tex.Civ.App., 258 S.W. 881, writ dismissed; May v. Hahn, 22 Tex.Civ.App. 365, 54 S.W. 416; and Id., Tex.Civ.App., 64 S. W. 942; and Grand Fraternity v. Melton, 102 Tex. 399, 117 S.W. 788, support our views.

For the reasons stated, the judgment, of the trial court is reversed and the cause is remanded.


author: MURRAY, Justice.

text:
    STRACK v. STRONG.
    No. 10639.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 30, 1939.
    Rehearing Denied Jan. 24, 1940.
    Ward & Brown and Seale & Wood, all of Corpus Christi, for appellant.
    Sidney P. Chandler, of Corpus Christi, for appellee.
   MURRAY, Justice.

This is thq second appeal to this Court of this cause. Our opinion on the first appeal is to be found in 114 S.W.2d 313, to which reference is here made for all pertinent purposes.

This suit was originally instituted by appellee, Strong, against appellant, Strack, seeking to cancel a joint adventure contract, whereby Strong agreed to furnish money and Strack skill and labor in acquiring oil and gas leases on land in Nueces County, and adjoining counties, and further to recover from Strack certain sums of money alleged to have been appropriated by Strack to his own use. It was alleged that Strack had breached the contract on or about _December 4, 1935, and that therefore Strong was entitled to a cancellation of the same. Fof the reasons stated in our original opinion the judgment was reversed and the cause remanded for a new trial.

On the present trial the cause was tried upon the theory that-the contract between Strong and Strack was terminated by an agreement signed on November 4, 1935, Strong contending that thereafter he became the equitable owner of all the leases and mineral rights purchased in pursuance to their joint adventure by reason of the fact that he had furnished the money to' pay all cash bonuses paid for such leases and mineral rights, while Strack contends that their joint adventure agreement was that they were each to have a one-half interest in all such leases and mineral rights and, further, he having furnished his skill and ability in securing these leases was thereby entitled to a one-half interest in the same.

The trial, below was to a jury, who found, among other things, in answer to special issue No. 47, that Strong and Strack were to be joint owners of all leases and other mineral rights acquired by them under their joint adventure agreement. The trial court disregarded' this 'finding and entered judgment decreeing to Strong'the title and possession of all the leases and other mineral rights.

It is clear that if there is sufficient evidence to support the jury’s answer to special issue No. 47, the trial court should have not have disregarded such finding and should have entered judgment declaring Strong and Strack to be joint owners of such leas§s and other mineral rights.

An examination of the record shows that Strong and Strack, together with C. W. Skipper, had been buying leases before a written contract had been entered into. On September 7, 1935, the three parties entered into the following written contract, to-wit:

“Corpus Christi, Texas “September 7th, 1935.
“This agreement made and entered into the 7th day of September, 1935, by and between Walter Strack, H. T. Strong and C. W. Skipper.
“That Walter Strack agrees and pledges himself, in consideration for moneys advanced prior to the above date and for any money that may be advanced subsequent to the above- date, by H. T. Strong and C. W. Skipper, for personal expense, or expense incurred in securing of leases, and royalties, or options to drill and develop lands in Nueces County and adjoining Counties, that in the closing of any deal by the sale of any of the above-mentioned leases royalties or options that have been secured or that may be secured, that all moneys advanced by H. T. Strong and C. W. Skipper shall first be returned and that any profit- recurring thereafter from any sale or trade, or drilling contract on any of the above mentioned leases, royalties or options; that C. W. Skipper and H. T. Strong shall each receive a one-third interest in same.
“It is further understood and agreed that no other parties have any interest in this agreement, or will be invited to participate unless agreeable to each of the above named parties.
“It is further understood and agreed that neither will be held responsible for any personal obligations or debts contracted by either of the parties of this agreement which is not incurred in the prosecution of the work covering this agreement.
“(Signed) C. W. Skipper
“H. T. Strong
“Walter Strack.” .

C. W. Skipper did not furnish the money required of him under the above contract and was by the parties released of his obligations under the contract, and the enterprise continued as a joint adventure between Strong and Strack.

On November 4, 1935, Strong and Strack executed the following agreement, to-wit:

“Corpus Christi, Texas
“-Nov. 1935'.
“This agreement made and entered into this the 4th day of November, 1935, by and between H. T. Strong and Walter-Strack, both of Corpus Christi, Texas.
“That we, the.undersigned H. T. Strong and Walter Strack, shall and do hereby own jointly leases, contracts fo.r leases and options, Oil Payments, royalties, and that all profits arriving therefrom shall be divided on a 50-50 basis, and same shall mean an undivided onehalf interest in and to all oil payments and production that we may acquire or have contracted for in Nueces County and -adjoining Counties.
“This agreement shall include royalties on Gas and any contract where there is an outlet for wholesale Gas, contracts.
“(Signed) H. T. Strong
“Walter Strack.”

On November 4, 1935, arid after the execution of the agreement next above set forth, all three of said parties executed the follotving cancellation agreement, to-wit:

“Corpus Christi, Texas
“November 4th, 1935
“Cancellation of Agreement
“It is hereby agreed by and -between H. T. Strong, C. W. Skipper and Walter Strack, to cancel any and all agreement's made in writing or otherwise prior to this date relative to Oil and Gas leases, drilling of Oil wells,' drilling contracts royalties etc. or any other agreement as to Oil Developments of any nature what-so-ever, is hereby canceled and of no further force and effect, and that neither of the parties hereto shall have any claim against each-other of any nature what-so-ever.
“It is further agreed and understood-that should any agreement be made by or between the parties hereto after date of this agreement, same shall be made in writing and specifically set out the terms and-, interests each, shall receive.
. “It is mutually agreed between the parties hereto that neither shall interfere with the operation of the other, and that each and every one shall be free to buy, sell, develop or carry on in the above mentioned Oil Development or leasing' as he sees fit, and that no further claim shall be made by either of the parties hereto against one and other.
“H. T. Strong
“Walter Strack
“C. W. Skipper”

On December 18, 1935, Strong had prepared an agreement setting forth the exact interest of the two parties as he then understood the matter, but it was never executed. This unsigned contract reads as follows:

“Know all men by these presents that, on this the 18th day of December, 1935, H. T. Strong and Walter Strack, both of whom reside in Corpus Christi, Nueces County, Texas, have entered into this agreement for the purpose of definitely establishing the rights and interests of the parties in the oil, gas and mineral leases hereinafter mentioned.
“It is agreed that H. T. Strong has heretofore furnished all of the money invested in the hereinafter mentioned leases and that Walter Strack has obtained and negotiated for such leases, all taken in his name, with the understanding that the parties hereto shall, and do, own each an undivided one-half (½) interest in all of such leases herein named, etc.”

Strong, in his original petition, alleged that the leases etc., were jointly owned, in the following language: “Prior to the 4th day of November, 1935, and since that date, this plaintiff furnished all the money necessary for the defendant to obtain certain oil and gas leases in Nueces County and surrounding counties, which said oil and gas leases were taken in the name of defendant, with the understanding that the parties, plaintiff and defendant, should each own an undivided one-half (½) interest in all such leases, options, oil payments, royalties or other mineral interest in any and all properties that were purchased or may have been obtained and taken in the name of Walter Strack, etc.”

Strong in his First Amended Petition alleged an undivided one-half interest in all such leases, etc., in the following language: “Said oil and gas leases were purchased and taken in the name of the defendant under an agreement and understanding between the plaintiff and defendant, that after repaying to plaintiff the cost of the leases so obtained, plamtiff and defendant would each own an undivided one-half (⅝) interest in all such leases, etc.”

However, after the case was reversed and remanded by this Court on the former appeal, a second amended petition was filed by Strong and his allegations of joint ownership were abandoned. The abandoned pleadings were offered in evidence and are again before us on this appeal.

We feel that under the evidence, as above set forth, the jury were supported by the evidence when they found in answer to Special Issue No. 47, that it was the agreement that the leases, etc., were to be owned jointly and in equal portions.

Appellant also contends that the finding of the jury is not supported by the pleadings. We overrule this contention. The proof was admissible under appellee’s general denial. 10 Tex.Jur. p. 506; Amarillo Oil Co. v. Ranch Creek Oil & Gas Co., Tex.Civ.App., 271 S.W. 145; Brodage v. Greenwood, Tex.Civ.App., 261 S.W. 433.

It is clear that under the agreement Strong is entitled to' be reembursed for all money which he has advanced for the purchase of the oil leases, etc.

The .record further shows that Strack secured the sum of $7,000 by entering into a contract concerning a number of leases which we have hereinabove, in effect, held were jointly owned by Strong and Strack. It follows that this $7,000 was also the joint property of the parties and that any additional leases purchased with this money would be the joint property of the parties. It further appears that Strack took $3,000 of the $7,000 and appropriated the same to his own use. Strack must account to Strong for the sum of $1,500, together with interest at the rate of 6% from December 4, 1935, until paid.

The judgment of the trial court will be reversed and judgment here rendered to the effect that Strong and Strack each own an undivided one-half interest in all the leases, mineral rights, etc., Strack’s one-half to be charged with the repayment to Strong of the $2,865.40 which he has advanced and put into the joint adventure and the further sum of $1,500, together with interest from December 4, 1935, at the rate of 6% pe.r annum, being the sum of money belonging to Strong, which has 'been appropriated to his own use by Strack.

All other questions raised become immaterial in view of our above holdings.

Reversed and rendered.


author: MONTEITH, Chief Justice.

text:
    HUTCHERSON v. HUTCHERSON et al.
    No. 10895.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 29, 1939.
    Rehearing Denied Jan. 18, 1940.
    Clay Cotten, and J. Lee Bilberry, both of Palestine, for appellant.
    W. • R. Petty, of Palestine, for appellees.
   MONTEITH, Chief Justice.

This is an appeal in an action originally brought by appellees, G. W. .Hutcherson, Mrs. Carrie Oldham, and Mrs. Bertha Dodson, against appellant J. S. Hutcherson, as independent executor of the estate of J. D. Hutcherson, deceased, in the form of an application filed in the probate court of Anderson County, Texas, for an order directing the said J. S. Hutcherson, as such independent executor, to deliver to appellees the residue of the property of said estate.

Appellant answered by pleas in abatement to the jurisdiction of the county court and by general demurrer and general denial.

The county court of Anderson County sustained said picas in abatement and entered an order dismissing appellees’ application. The case was appealed to the district court of Anderson County, which court overruled the said pleas in abatement, proceeded to hear the cause on its merits, and entered an order requiring, appellant to deliver to appellees three notes, which constituted the residue of the property of said estate.

Appellant bases his appeal on the_ action, of the district court in overruling his pleas to the jurisdiction of the county court, and contends that the provisions of testator’s will conclusively show an intention on the part of testator that appellant, as such independent executor under his will, should handle his estate free of any action of the probate court.

J. D. Hutcherson died in Anderson County, Texas, leaving a will under the terms of which J. S. Hutcherson was appointed independent executor of his estate.

Said will was duly probated in cause No. 4044 in the county court of Anderson County, Texas, and J. S. Hutcherson was appointed independent executor of said estate and thereafter qualified by taking the oath as such executor. He subsequently filed an inventory, appraisement,' and list of claims of said estate. The said will of J. D. Hutcherson named- his four children, George W. Hutcherson, Mrs. Carrie Old-ham, Mrs. Bertha Dodson, appellees herein, and Mrs. Jewel Wilson, as his sole beneficiaries. -It provided for one special bequest to Mrs. Jewel Wilson and that the remainder of the estate, after the payment of such bequest, should be equally divided between his said four children. At the time of the filing of the application upon which this appeal is based, all of the debts due by the estate had been paid, all land belonging to the estate had been partitioned among the devisees, and all assets of the estate had been liquidated, with the exception of the three notes referred to above, and the proceeds thereof had been paid over to the four children of the deceased.

The only question involved in this appeal is whether the county court had jurisdiction of this action brought by the devisees under said will against the independent executor thereof, requiring him to turn over to them the assets of said estate held by him as such independent executor.

The will of J. D. Hutcherson, deceased, omitting portions thereof immaterial to this appeal, is as follows:

‘T hereby constitute and appoint my brother, J. S. Hutcherson, executor of this my last will and testament, and direct that no bond or security be required of him as executor.
“It is my will and desire that no other action shall be had in the county court in the administration of. my estate than to prove and record this will, and to return an inventory and appraisement of my estate, and list of-claims.”

Article 3436 of the Revised Statutes of 1925 reads: ■ “Any person capable of making a will may so provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement and lists of claims of his estate.”

„ In construing Article 3436, the courts of this state have uniformly held that a testator is vested with absolute power to select his own representative, subject only to the qualification that he be sane and twenty-one years of age, Shaffer et al. v. Luby’s Estate et al., Tex.Civ.App., 297 S.W. 582, Journeay v. Shook, 105 Tex. 551, 152 S.W. 809, and that unlike an ordinary administrator whose appointment and duties are under the direct control and supervision of the probate court, no judicial act of the court is directly involved in their appointment, or, after their appointment, in the management of the affairs of said estate; Higginbotham et al. v. Alexander Trust Estate, Tex.Civ.App., 129 S.W.2d 352; Ware v. Barfield, Tex.Civ.App., 54 S.W.2d 1105; and that, where the language of a will appointing an independent executor is clear and unambiguous, he becomes a creature of the will and not of the probate court. He is by the terms of the will vested with unbridled authority over the estate and is authorized to do any act respecting it which the court could authorize to be done if the entire estate were under its control, or whatever testator himself could have done in his lifetime, except as restrained by the terms of the will itself. Higginbotham v. Alexander Trust Estate, supra; Ware v. Barfield, supra; Schramm v. Hoch, Tex.Civ.App., 241 S.W. 1087; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892; Ewing v. Schultz, Tex.Civ.App., 220 S.W. 625.

The will of J. D. Hutcherson, deceased, provided that no bond should be required of the executor, and in language too clear and plain to be misunderstood directed that his estate should be administered free of any control of the probate court. The provision of the will in this respect is in almost the identical language of Article 3436, above referred to.

The Supreme Court in the case of Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, in an opinion by Chief Justice Cureton^ in passing on the exact question presented in this appeal announced the rule that the district court has jurisdiction of a suit brought against an independent executor for the recovery of property, both real and personal, alleged to belong to an estate and withheld from the assets of the estate, and to determine the ownership of such property, and to decree a partition thereof, as well as the other property of the estate, among those entitled thereto, and that the probate court has no jurisdiction of controversies between an independent executor and the devisees under the will. (Italics ours.)

This rule is followed in the case of Kopplin v. Ewald, Tex.Civ.App., 70 S.W.2d 608. In its opinion the court says:

“While it may be true that in cases of regular administration under bond the probate court has exclusive original jurisdiction of claims against estates under administration, such is not the law in cases where estates are being administered by independent executors without bond, under testamentary provisions that the probate court shall have no control over the estate. The effect of such provision is to deprive the probate court of jurisdiction of claims against the estate (including the claim of the widow for allowances in lieu of exemptions and for maintenance) and to relegate such claims to the district courts. 13 Tex.Jur. p. 791, § 211; Runnels v. Runnels, 27 Tex. [515] 516; Holmes v. Johns, 56 Tex. 41; Lumpkin v. Smith, 62 Tex. 249; Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Id. (Tex.Civ.App.) 50 S.W. 491. * *

“Such claim must be instituted and prosecuted in the district court as any other cause of action; that is, upon petition and citation returnable to the ensuing term of court, after at least ten full days’ service of citation.”

Under the above authorities the judgment of the district court will be reversed and the cause dismissed.

Reversed and dismissed.


text:
    HODGKINS et al. v. SANSOM et al.
    No. 14046.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 24, 1939.
    Rehearing Denied Jan. 26, 1940.
    McLean & Scott and Glover Johnson, all of Fort Worth, for appellants.
    Greathouse & Swanger and J. Elwood Winters, all of Fort Worth, for appellees.
   BROWN, Justice.

On July 8th, 1939, James Hodgkins and Wm. F. Charbonneau, resident citizens and property taxpayers, residing in the confines tif Rosen Heights Independent School District, a lawfully constituted public school district, brought suit in the 96th district court of Tarrant County against M. Sansom, Jr., J. R. Swart, C. H. Putnam, Fred Hull, C. L. Matthies and E. I. Bear-den, alleged to be duly elected, qualified and acting Trustees of said Independent School District, and against J. Earl Hodg-kins, alleged to be acting as such Trustee, but that said Hodgkins is not in fact and has not been lawfully elected and that he is and was without power to act.

It is alleged that on May 26, 1939, at a purported meeting of said Trustees, the defendants, Bearden, Hull, Matthies and J. Earl Hodgkins, attempted to make and did make a purported order calling for an election to be held on Saturday, June 17, 1939, at the school house in said district, for the purpose of voting on the question of issuing bonds to erect either an addition to the old school buildings, or to erect a new building, and for making other improvements in and on the school properties.

It is alleged that J. Earl Hodgkins claims to have been elected as such Trustee at the regular school trustee election, held for and. in such district on April 1, 1939, but that at the time of such election said Hodgkins “was either not a resident of said school district at the time of said election of April 1st, 1939, or removed from said district on April 4th, 1939, and has continued to reside outside o,f said district continuously ever since, and as such is either not entitled to be elected to the position of such Trustee at said election of April 1st, 1939, or since April 4th, 1939, has not been qualified to act as such Trustee; and that by reason of the aforesaid disqualification of the defendant, J. Earl Hodgkins, to act as such Trustee there was not a quorum of duly elected, qualified and acting Trustees of said District at the said meeting of May 26, 1939, at which the election for said bond issue was ordered; and that therefore and by reason thereof no valid order has ever been passed by a duly qualified Board of Trustees of said District calling such election.”

These allegations are 'followed by those asserting that the combined maintenance and bond tax now being levied and collected by the said School District is the maximum allowed by law, namely, one dollar per hundred on the assessed values of the properties located in the District and that in order to discharge and pay the indebtedness of the district the assessed value of all property therein has been raised approximately one-third over the state and county assessed values of said property; that at the election held in said district on June 17, 1939, a majority vote was cast favorable to the issuance of the said bonds, “and that the defendants, or some of them, claiming to be a quorum of said Trustees, are planning to issue and negotiate said bonds, so voted, and to put the same in the hands of purchasers thereof.”

It is alleged that if the bonds are issued and sold it will naturally result in an increase in the amount of lien created by issuance of the bonds upon the properties belonging to the plaintiffs, and an increase in the amount of taxes to be paid,by the plaintiffs, “all of which will be to the great hurt and harm of plaintiffs, for which they have no adequate legal remedy.”

The plaintiffs pray for a temporary w/it of injunction restraining the defendants from issuing, negotiating and delivering the bonds to anyone, and that upon a final hearing the injunction be made permanent.

Upon presentation of such petition, the trial court granted plaintiffs’ prayer for a temporary injunction and ordered a hearing had on July 14, 1939, requiring the defendants to appear and show cause why the injunction should not be granted as prayed for.

At such hearing, the defendants filed a general demurrer, a general denial and specially pleaded that the matters and facts set up in the plaintiffs’ petition have been fully determined and adjudged in favor of the defendants by a final, valid judgment rendered by the said 96th district court, on June 16, 1939, in a prior cause entitled Earl Barksdale et al. v. M. Sansom, Jr., et al., and being numbered 2S485-A on the docket of said court.

The cause being tried to the court, after hearing the testimony and receiving evidence, the trial court denied plaintiffs the injunctive relief sought, and they have appealed.

It was established before the court that J. Earl Hodgkins, when he was elected a Trustee of said school district, was a resident citizen and tax-payer of the same, but that early in April, 1939, Hodgkins’ home burned and he was compelled to look for another place in which to live. Under such conditions and circumstances, Hodg-kins found, rented and moved into a house in the same neighborhood, which, he testifies, he later learned was about 150 yards north of the line of the said school district.

It appears that at no time during which the acts complained of by plaintiffs were had and done did Hodgkins know that his then residence was not located within the borders of such school district. Furthermore, Hodgkins testified that it was not his intention to abandon his home site, but that he intended to rebuild as soon as he is financially able to do so.

We find the following situation in the prior suit, on which defendants rely for sustaining their plea of res judicata: Earl Barksdale, S. H. Shipe and J. M. Shaffer brought suit in the 96th district court against M. Sansom, Jr., J. E. Hodgkins, J. R. Swart, C. H. Putnam, Fred Hull, C. L. Matthies, E. I. Bearden, S. E. Watson, J. R. Foster and Rosen Heights Independent School District, and alleged practically the same facts set forth in the petition in the instant suit, and they prayed for a writ of injunction enjoining the defendants from holding the election on the question of the issuance of the bonds in controversy and that such injunction be made permanent.

This petition was presented to the court on June 14, 1939, a temporary restraining order was ordered by the court, and the cause set for a hearing on June 16th, 1939, and defendants ordered to appear on a “show cause order”.

After defendants appeared and answered, and the evidence was heard, the district court rendered the following judgment:

“No. 2S48S-A.
“Earl Barksdale et al. vs. M. Sansom, Jr., et al.
“In the District Court, Tarrant County, Texas, 96th Judicial District.
“Judgment.
“On this the 15th day of June,. 1939, came on to be heard the above entitled and numbered cause, came plaintiffs and defendants in person and by attorney and announced ready for trial, the court having heard the pleadings and evidence finds that the said J. E. Hodgkins was duly elected and qualified as trustee of the said Rosen Heights Independent. School District and that he, the said J. E. Hodgkins, was a resident of the district at the time of his election towit: April 1, 1939, and for six months next preceding said date and that he has been at all times since and is now a resident of the district and is a duly elected and qualified trustee of said district and was so qualified on towit: the 26th day of May, 1939, when the election herein complained of was called for the date of June 17, 1939, to vote on whether or not the said 'district would issue its bonds for $25,500.00 for improvements to said district school property and that said order calling said election was therefore valid and the court is therefore of the opinion that the said injunction should be denied.
“It is therefore ordered, adjudged and decreed that the plaintiffs take nothing and that said injunction be denied, that defendants go hence with their costs and that all costs of this proceeding be charged against plaintiffs for which let execution issue.
“(Signed) A. J. Power
“Judge.”

In the prior suit, the one question presented and litigated was the lawful authority to act as a Trustee on the part of Earl Hodgkins and the invalidity of all acts of the Board of Trustees in calling the election was bottomed on the allegation and charge that Hodgkins was not a duly elected, qualified and acting Trustee when these acts were had and done and that it required his presence and vote to establish a quorum of such Trustees.

That same question is the only one presented in this case.

It is elementary that the parties in the prior suit are to be held to the rule that all issues and questions which could have been raised in such suit are now deemed to have been raised and litigated.

The only question raised in the instant suit that was not presented in the prior suit is the fact issue that Hodgkins had moved out of the school district and had thereby vacated his office as Trustee when the acts of the Board complained of were had and done. This fact could have been ascertained and was one easily ascertained by the plaintiffs, in the prior suit, if such a condition obtained. Mercer et ux. v. Rubey, Tex.Civ.App., 108 S.W.2d 677, writ refused; Metropolitan Life Ins. Co. v. Pribble, Tex.Civ.App., 130 S.W.2d 332, writ refused.

In Cochran County et al. v. Boyd et al., Tex.Civ.App., 26 S.W.2d 364, 365, writ refused, the following is said:

“The general rule is that, in the* absence of fraud or collusion, a judgment for or against a county or other municipality is binding and conclusive upon all residents, citizens, and taxpayers, in respect to the matters adjudicated which are of general and public interest, and that all other citizens .and taxpayers similarly situated are virtually represented in the litigation and bound by the judgment, and this applies especially to judgments relating to the validity of county bonds. 34 C.J. 1028, § 1459.
"The reason for this rule is stated by the same authority on page 1029, as follows: ‘If this were not so, each citizen, and perhaps each citizen of each generation of citizens, would be at liberty to commence an action and to litigate the question for himself. * * * If a judgment against the county in its corporate capacity does not bind the taxpayers composing the county, then it would be difficult to imagine what efficacy could be given to such judgment.’ See, also, 15 R.C.L. 1035, § 510.
“The Supreme Court has adhered to the rule in the case of Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224, 225, in which it is said: ‘The interveners were not parties to the suit of Kansas City, M. & O. R. Co. v. City of Sweetwater (62 Tex.Civ.App. 242, 131 S.W. 251; Id., 104 Tex. 329, 137 S. W. 1117) at the time the judgment of this court was entered, but they were citizens of that municipal corporation, and the important question in the case is reached by the announcement of the well-settled prop-, osition of law that, if the matter adjudicated affected the interest of the public as distinguished from the private interest of the citizens of the city, although not parties to the suit, all citizens are concluded thereby.’ ”

In the prior suit the plaintiffs sought to prevent the election from being held, urging that if held, same would carry and they would be compelled to suffer the same injury that the present petitioners allege they will suffer if the bonds, authorized to be issued on the strength of such election, are issued and sold.

We are of opinion that the plaintiffs in the instant suit have been concluded by the judgment in the prior suit.

We do not share the opinion of appellants wherein they contend that the judgment in the prior case is not a final judgment.

In the former suit the petitioners prayed that the defendants be cited to appear and answer, that the court issue a temporary writ of injunction against the defendants, “and that upon further hearing said injunction be made permanent.”

The temporary writ was issued, and the parties ordered to appear and show cause why the relief prayed for should not be granted, and upon a hearing the court, in its judgment, found and established the facts against petitioners’ contentions, and “ordered, adjudged and decreed'that the plaintiffs take nothing and that the injunction be denied, that defendants go hence with their costs and that all costs of this proceeding be charged against plaintiffs for which let execution issue.”

No appeal was taken from this judgment and we hold that it is a final judgment.

Appellants rely upon the provisions of Section 14, Article 16 of the Constitution of Texas, Vernon’s Ann.St., viz: “All civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held.”

We do not believe that these provisions of the Constitution were ever made or intended to apply to a situation such as we have before us. Here, we have a resident citizen of a school district, duly elected as a Trustee thereof, and who qualifies as such officer, and very shortly after his election his home burns and he moves into a rented house in the same community that he did not know was’ just a short distance outside of the boundaries of his school district and who would not, in all probability, have learned that he was not actually residing in the district had not the suit been filed long after he performed the duties of his office over which the suit has arisen. Furthermore, the trial court was warranted in believing that this Trustee’s residence, is being only temporarily maintained just outside of the school district, that he does not intend to abandon his residence therein but does intend to rebuild on his old home-site as soon as he is financially able to do so.

We do hot find, under this record, that the Trustee ever intended to move from' the school district, and we believe that a deliberate intention to do so, under the facts here, must control.

The judgment of the trial court is affirmed.