text:
    NACOGDOCHES COUNTY v. WINDER.
    No. 3656.
    Court of Civil Appeals of Texas. Beaumont.
    May 17, 1940.
    Rehearing Denied May 29, 1940.

      Adams & McAlister, of Nacogdoches, ior appellant.
    Seale & Thompson, of Nacogdoches, for appellee.
   O’QUINN, Justice.

Appellee Winder sued Nacogdoches 'County to recover a balance of salary •claimed .to be due him as. County Clerk of ■said county for the years 1937 and 1938, said county being on January 1, 1936, under the salary law applying to such office, and which has at all times since and now is subject to such law.

He alleged that he was the duly elected, •qualified and acting County Clerk of Na-cogdoches County during the years 1937 and 1938, and as such, under the salary law, entitled to receive as his salary $3,-350 each of said years, but that without authority of law the commissioners’ court of said county bad attempted to reduce his salary from $3,350 to $3,000 per year.

The case was tried to the court without a jury, and judgment rendered for appel-lee in the-sum of $572.32. From that judgment appellant brings this appeal.

The following facts are without dispute: Appellee, Winder, was the duly elected, qualified and acting County Clerk of Na-cogdoches County during the years 1937 and 1938. Nacogdoches County was under the salary act law, Article 3912e, section 13, Vernon’s . Ann. Civil Statutes,' and Article 3891/ R.C.S., Vernon’s Ann.Civ.St. art. 3891. Under these statutes, the salary of the County Clerk of Nacogdoches County was .governed by the minimum of salary earned in 1935, and a maximum salary of $3,500. The County Clerk of Nacogdoches County in 1935 earned as compensation of his office the sum of $3,-286.16. On January 13, 1936, at a regular session of the commissioners’ court, an order was entered by said' court fixing ap-pellee’s salary at $3,286.16 the amount earned as salary by the county judge of said county in 1935. Later in said month, January 31st, at a called session of said court, his salary was fixed at $3,350 per year. On January 11, 1937, the commissioners’ court in regular session fixed his salary at $3,000, for that year, and on January 10, 1938, said court fixed his salary at $3,000 for said year. . This was $286.16 less than the minimum salary for 1935, and $350 less than the salary as fixed by the order of January 31, 1936. Appellee prayed judgment for $572.32, the difference between the $3,000 per year for 1937 and 1938, and the minimum of $3,-286.16 as fixed by the order of January 13, 1936, or in the alternative, for judgment for $700 if the order of January 31, 1936, passed at the called session be found proper. The judgment was. for $572.32.

We think the order fixing appel-lee’s salary made at the regular term on January 13, 1936, was in accordance with the law, and that the amount then fixed as the annual salary of appellee, $3,286.16, under the facts and the law was proper, and is controlling here. Article 3912e, section 13, Vernon’s Ann.Civ.St., fixes the salary of County Clerks in the class of counties in which Nacogdoches fell, at not less than the total sum, ear.ned by him in- his official capacity for' the fiscal year 1935 and not more than the maximum amount allowed such officer under laws existing on August 24, 1935. The legislature having prescribed the minimum amount of salary (the official earnings in 1935) and that being shown to have been $3,286.16, the commissioners’ court did not have the authority to ignore this statutory provision of minimum salary and fix the salary at $3,000. The provisions of the statute authorizing the commissioners’ court to fix the salary at any sum not less than a certain minimum, and not more than a certain maximum, are mandatory, and could not be ignored by the members of the court at their discretion. The order fixing appellee’s salary at $3,000 was without authority, and so void.

We overrule appellant’s contention that appellee having accepted the monthly warrants issued to him under the salary of $3,000 . fixed by the commissioners’ court, he was estopped to demand additional salary for said period. The contention .'is without merit. Greer v. Hunt County, Tex. Com.App., 249 S.W. 831.

Appellant’s contention that it was entitled to judgment because appellee’s claim did not appear to have been audited and approved by the county auditor before being presented to the commissioners’ court for approval, is without force. The record is clear that appellee’s claim was presented to the commissioners’ court for approval and was by the court refused. Under the facts it was the duty of the court to audit and pass upon the claim. Article 2351, Section 10, R.C.S. Their rejection of the claim authorized appellee to bring this suit to, establish his right to judgment. Farmers State Bank v. Bowie County, 127 Tex. 641, 95 S.W.2d 1304; Greer v. Hunt County, Tex.Com.App., 249 S.W. 831; Article 1573, R.C.S.

Furthermore, it is not believed that the claim here involved is such as is required by Article 1660, R.C.S. to be presented to the county auditor for his approval before same can be presented to the commissioners’ court for its approval and payment. Article 1660 reads: “All claims, bills and accounts against the county must be filed in ample time -for the auditor to examine and approve same before, the meetings of the commissioners court. No claim, bill or account shall be allowed or paid until it has been examined and approved by the county auditor. The auditor shall examine-the same and stamp his approval thereon. If he deems it necessary, all such accounts, bill, ^ or claims must be verified by affidavit touching the correctness of the .same. The auditor is hereby authorized to administer oaths for the purposes of this law.-”

This article must be considered and construed in connection with the succeeding, article, 1661, passed as a part of the same act, Acts. 1905, p. 381, which reads: “Art. 1661. Requisites of approval. — He shall not audit or approve any such claim unless it has been contracted as provided by law* nor any account for the purchase of supplies or materials for the use of said county or any of its officers, unless, in addition, to other requirements of law, there is attached thereto a requisition signed by the officer ordering same and approved by the county judge. Said requisition must be made out and signed and approved in triplicate by the said officers, the triplicate to-remain with the officer desiring the purchase, the duplicate to be filed with the county auditor, and the original to be delivered to the party from whom said purchase is to be made before any purchase shall be made. All warrants on the county treasurer, except warrants for jury service,, must be countersigned by the county auditor.’’

A literal application of article 1660 without reference to article 1661 would require the filing with the auditor of claims of every nature, but under article 1661 it is readily seen that the auditor has no authority to audit or approve a claim of the nature here involved. It is evident that the claims which he is authorized to audit and approve under article 1661 are claims, based upon contracts lawfully made, and. accounts for supplies and material supplied and contracted for as required by law, to which are attached the proper requisitions. There are no provisions in the law which indicate that the county auditor is vested with any authority to pass upon the merits-of claims such as here: Appellee’s claim-being one which under no circumstances-could be approved by the county auditor,, article 1660 has no application to it. Southern Surety Co. v. McGuire, Tex.Civ.App.,, 275 S.W. 845, writ refused; Greer v. Hunt County, Tex.Com.App., 249 S.W. 831.

We overrule appellant’s assignment that the court erred in not sustaining its plea in abatement. The insistence is that the commissioners’ court in January, 1937, and in January, 1938, entered upon its minutes an order fixing appellee’s salary for said years at $3,000 per year, from which orders appellee did not appeal, but accepted the monthly warrants issued to him for each month of said years same being for one-twelfth of $3,000; that said orders became final judgments of the court, and so was conclusive of appellee’s right to maintain this suit. This contention is not sound. The order fixing appellee’s salary at $3000.00, being a sum less than the minimum fixed by law, Article 3912e, Section 13, Vernon’s Ann.Civ.St., the order was void, and being so could be attacked in any court having jurisdiction of the matter involved.

Appellant’s contention that the court erred in not sustaining its plea of res ad-judicata is denied. The record reflects that in 1937 the commissioners’ court of Nacog-doches County entered an order on its minutes fixing the salary of the officers of said county for that year, and that it fixed, among others, appellee’s salary at $3,000. Thereafter said officers, including appel-lee, brought suit in the district court of Nacogdoches County for a writ of mandamus against the commissioners’ court of Nacogdoches County and the individual members of said court, alleging, in brief, that in setting their salaries the court acted arbitrarily and contrary to law for in that it had set said salaries at a sum less than the minimum allowed said plaintiffs by law, being less than the sums earned by said plaintiffs in said offices for the year- 1935, and prayed for a writ of mandamus directing and commanding said commissioners’ court and the individual members thereof to fix said plaintiffs’ salaries at the sum earned by them for the year 1935. That case was tried to a jury and on its verdict judgment was entered directing and commanding said court and its members to set the salaries of the plaintiffs at the sum earned by them in 1935, to wit: - County Clerk, $3,254.18. From that judgment the defendants appealed to this court. When the matter came up for consideration by this court, it was found that all the issues involved had become moot, and the appeal was dismissed. 113 S.W.2d 277. Mandate accordingly issued to the trial court. This judgment was not res ad judi-cata of the matters here involved. That was not a suit against Nacogdoches County for official salary, but a suit to compel the commissioners’ court of said county to set the salaries of the county officers involved at a sum within their power to fix —at a sum between the minimum and maximum amounts allowed by law, which it had not done in its order of January, 1937. Further, the commissioners’ court did not obey the mandamus granted by the district court, and no judgment was ever had upon which execution could have issued.

Appellant, by cross-action, sought a judgment over against appellee, on the ground that appellee had failed to file a sworn statement as required by Article 3897, R.C.S., Vernon’s Ann.Civ.St. art. 3897. It was- alleged that no statement had been filed by appellee, and the penalty of twenty-five dollars per day for each day elapsing after February 1, 1937, for a period of nineteen months, amounting to $14,250, was invoked and for which judgment was prayed. The record reflects that on February 1, 1937, the door to the office of the county auditor was locked and kept locked by reason of some friction between the commissioners’ court and the county auditor. The door was locked at the instance of the commissioners’ court. All blanks furnished by the State Auditor upon which appellee was required to make his sworn statement, Article 3897, R.C.S. were locked up in the county auditor’s office, and not available to appellee. He repeatedly sought to gain admission to the county auditor’s office for the purpose of getting the blanks to make his report but. failed. When the matter between the commissioners’ court and the county auditor progressed to where the auditor’s office was unlocked and available to the public, appellee immediately procured the required blanks and made and filed his statement. Appellant insists that the statement filed by appellee was insufficiently itemized, and, in effect, was no statement. No objection was made to it by any person, commissioners’ court, district clerk, or any officer whatever — the first suggestion of its insufficiency was in appellant’s cross-action. It being undisputed that appellee exercised reasonable diligence to procure the blanks from their proper custodian upon which he was by law required to make his sworn statement, and the delay in making same being caused by circumstances not under his control and which he could not obviate, and that at the earliest opportunity he procured the blanks and made out and filed his statement, no intent to violate the law was shown, nor does any official negligence appear sufficient to make appellee guilty of official wrong doing. The trial judge in finding against appellant’s cross-action and rendering judgment for appellee on that issue, so found. Again,'the statute is highly penal, and so must be strictly construed. In Whitfield v. Terrell Compress Co., 26 Tex.Civ.App. 235, 62 S.W. 116, 118, writ refused, where a statute of similar purpose was construed, it was said: “In actions to recover a penalty, strictness of pleading and proof is required. The act under consideration is highly penal in its character, and it is only for a willful disregard of the law that its penalties should be inflicted.” (Italics ours.)

The evidence does not raise the issue of willful intent on the part of appellee to disregard the statute, but shows a willingness and effort to strictly comply with same. We think that, under the facts, there was a substantial compliance with the statute, and that the court did not err in refusing appellant judgment on its cross-action.

All assignments presented by appellant have been considered, and none of them showing reversible error? are all overruled. The judgment should be affirmed, and it is so ordered.

Affirmed.


source: Caselaw Access Project

author: JACKSON, Chief Justice.

license: Public Domain

text:
    CALVERT et al. v. HANNA.
    No. 5155.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1940.
    Rehearing Denied June 3, 1940.

      Preston Calvert, of Grand Saline, and Nelson & Brown, of Lubbock, for appellants.
    Syrian E. Marbut and McWhorter & Howard, all of Lubbock, for appellee.
   JACKSON, Chief Justice.

The appellants, Alma Webb Calvert, joined by her husband, Preston Calvert, instituted an action of trespass to try title in the District Court of Lubbock County against the appellee, John Q. Hanna, to recover title and possession to Lots Nos. 19, 20 and 21 in Block 63 of the Overton Addition to Lubbock.

The other allegations in appellants’ petition are immaterial.

The appellee answered by general demurrer, plea of not guilty, alleged that he is a married man, asserted that Lots Nos. 19 and 20 had at all times since July IS, 1924 constituted his homestead or a part thereof and had been used and occupied by him .and his family continuously as such. He also urged that he had acquired title under the statute of ten year limitation.

At the close of the testimony, in obedience to a peremptory instruction by the court, the jury returned a verdict in favor of appellee and the court rendered judgment to the effect that appellants take nothing by their suit and that appellee have and recover the title to the lots, from which judgment this appeal is prosecuted.

The parties agreed that the common source of title is in John A. Long.

Appellants challenge as error the action of the court in directing a verdict against' them because they contend the evidence presented fact issues for the determination of the jury. j

The record shows that on July 15, 1924 J. A. Long and wife conveyed to appellee, John Q. Hanna, Lots Nos. 18, 19, 20 and 21 in Block 63 of the Overton Addition to Lubbock for a recited consideration of $500 in cash and the execution and delivery of a series of six vendor’s lien notes, five for the sum of $100 and the sixth for the sum of $200, one note payable each year until the debt was satisfied. These notes were finally released on January 29, 1930.

The appellee erected a shack on Lot 18 immediately after its purchase and moved into it with his family and in 1925 obtained a loan, gave a mechanic’s lien on Lot 18, and erected a dwelling thereon which was occupied by him and his family for several years. He defaulted in the payments on the loan, the mechanic’s lien given on Lot 18 to secure the payment thereof was foreclosed and the lot sold under execution on July 2, 1929 to the Whaley Lumber Company. After the ap-pellee was dispossessed he moved with his family into what he designates as a shack which he claims was located on Lots Nos. 19 and 20, but if the shack or any part thereof was located on Lot No. 20, the testimony is too uncertain to justify the court in so holding as a matter of law. His wife and children left him on May 5, 1930, have never returned and have had no communication with him since. He has not re-married but he asserts that he uses, occupies and claims Lots Nos. 19, and 20 as his homestead.

On July 13, 1926 appellee and his wife conveyed Lot 21 to O. B. Seward for a recited consideration of $350 paid in cash and the assumption of the payment by Seward of $150 on the original consideration appellee contracted to pay J. A. Long for the four lots purchased on July 15, 1926.

On August 23, 1927 O. B. Seward conveyed Lot 21 to Anee M. English for a consideration of $400 subject to $150 of the indebtedness due J. A. Long. The record reveals that thereafter Anee M. English and wife conveyed said lot to ap-pellee, John Q. Hanna, for a consideration of $125 cash and the execution of one vendor’s lien note dated August 24, 1927, payable on or before January 1, 1928 to Anee M. English in the sum of $225, with interest thereon at the rate of 8% per annum, and the assumption of $150 of the indebtedness due J. A. Long. An express vendor’s lien is retained in this deed to secure the payment of the note for $225 which the deed recites is also secured by deed of trust on the lot. This deed of conveyance was lost but on January 10, 1928 a substitute deed was made by the same grantors conveying the same lot to the same grantees for the same consideration recited in the lost deed.

On August 24, 1927 the appellee and his wife executed and delivered to Sterling J. Parrish, Trustee, a deed of trust convey-rag- Lots 19, 20 and 21 in trust to secure Anee M. English in the payment of said vendor’s lien note for $225. The deed of trust is in -the usual form and contains the following statement: “We hereby designate as our homestead the property on which we live and reside, Lot No. 18 in Block No. 63, of the Overton Addition to the City of Lubbock, Lubbock County, Texas.”

On October 19, 1927 Anee M. English for a valuable consideration transferred and assigned said note for $225, together with the vendor’s lien and deed of trust lien securing the payment thereof to P. G. Webb. On July 2, 1929 the trustee, Sterling J. Parrish, in compliance with the law, sold the property and by a proper trustee’s deed conveyed Lots Nos. 19, 20 and 21 to P. G. Webb. Neither this deed of trust nor the trustee’s deed is attacked on any ground other than that Lots 19 and 20 constituted the homestead of appellee and that appellants’ title to all three of the lots was barred by the ten year statute of limitation.

It is apparently admitted by all parties that the lots involved constitute the separate property of Mrs. Calvert and not the community estate of herself and husband.

The appellee testified and the instruments show that the note for $225 above described evidenced a part of the purchase price of Lot 21 in the conveyance of said lot to him by Anee M. English. The note was secured by deed of trust covering Lots 19, 20 and 21, under which the trustee in his capacity as such sold and conveyed the lots to P. G. Webb, who deeded them to his father, W. S. Webb, and who conveyed them to his daughter, appellant Mrs. Calvert.

The appellee was the mortgagor with not only the right of possession but actually in possession of the lots and held the title thereto encumbered only by the lien. 29 Tex.Jur. 879, para. 68. His title and right of possession continued until the foreclosure sale which was made July 2, 1929. The mortgagee, until after the foreclosure sale, or his assignors had no title, or possession or right of possession and could not have maintained a suit in trespass to try title against the mortgagors and limitation did not begin to run against them until the foreclosure sale or the repudiation of the deed of trust by appellee. 29 Tex.Jur. 787, para. 3, page 880, para. 69.

As said in Willis v. Moore, 59 Tex. 628, 46 Am.Rep. 284: “In this state it has been held, from an early day, that a mortgage is but a security for a debt; that the title to property mortgaged remains in the mortgagor, and with it the right of possession, which is one of the ordinary incidents of title. Duty v. Graham, 12 Tex. 427 [62 Am.Dec. 534]; Wright v. Henderson, 12 Tex. [43] 44; Wootton v. Wheeler, 22 Tex. 338.”

In McCamant et al. v. Roberts, 87 Tex. 241, 27 S.W. 86, 87, the Supreme Court says: “In this state a mortgagor retains the title to the land, and is entitled to possession, unless otherwise stipulated, after breach o'f the condition as well as before, until foreclosed.”

In Hume v. LeCompte et al., Tex.Civ. App., 142 S.W. 934, 935, it is said:

“Appellant seems to labor under the view that appellees set up an equitable outstanding title, but by appellant’s witness it was shown that the instrument, which on its face was a deed, was in truth and fact a mortgage, and being a mortgage, it was only security for a debt, and the title tó the property remained in Elizabeth Maddox, as well as the right of possession. Willis v. Moore, 59 Tex. 628, 46 Am.Rep. 284; Erwin v. Blanks, 60 Tex. 583; Pratt v. Godwin, 61 Tex. 331; Wilkins v. Bryarly [Tex.Civ.App.], 46 S.W. 266.

“No doubt can arise, under the various decisions of this state, that a mortgagee cannot sustain an action of trespass to try title based on his mortgage, because neither the title to the land nor the right of possession is in him.”

In 1 Am.Jur. 812, para. 37, the author says: “The possession of a mortgagor, or his assignee, is not only entirely consistent with the rights and estate of the mortgagee, but as a general rule, cannot be adverse thereto until he has denied the mortgagee’s rights under the mortgage and set up an exclusive title in himself so openly and notoriously that the mortgagee must have known of his adverse claim.”

In the case of Lewis v. Hawkins, U. S. Supreme Court, 23 Wall. 119, 127, 23 L. Ed. 113, it is held: “It is well settled that the possession of the mortgagor is not adverse to that of the mortgagee. In the case last cited [Relfe v. Relfe, 34 Ala. 500, 504, 73 Am.Dec. 467] it is said that to apply the Statute of Limitations ‘would be like making the lapse of time the origin of title in the tenant against his landlord.’ ”

In McLane v. Paschal, 47 Tex. 365, 369, the Supreme Court says: “It is now finally and definitely settled by this court, that a deed of trust to secure the payment of a debt does not operate as an absolute transfer of the property to which it refers, to the trustee, upon the trust mentioned in the deed, defeasible upon the conditions therein stipulated; but that such instrument is, in legal effect, a mere mortgage, with a power to sell.”

We do not find the date of the filing of the original petition in this case but the first amended original petition was filed June 12, -1939, which • was less than ten years after the foreclosure and sale of the property on July 2, 1929 and as the only limitation relied on by appellee is the ten year statute such period of limitation was not complete on the date of filing the suit and appellee’s title was not matured by the ten year statute. The sale of the property by Sterling J. Parrish, the trustee in the deed of trust which secured the note for $225, a part of the consideration for Lot 21, was valid to such lot unless said note had been paid, and also to Lots 19 and 20 unless they were a part of the homestead when encumbered by the deed of trust.. Constitution of Texas, Art. 16, Sec. 50, Vernon’s Ann.St.; Floyd v. Hammond, Tex.Com.App., 268 S.W. 146.

The appellee testified that this note was paid by his drilling of a well and hauling brick for P. G. Webb and W. S. Webb, but he was the only witness to the fact of payment. He did not have the note in his possession, there was no release thereof, the property was sold several years subsequent to the date he claims to have paid the note, and the court was not authorized to direct a verdict in his behalf on his testimony alone. Simmonds et al. v. St. Louis, B. & M. R. Co., 127 Tex. 23, 91 S.W.2d 332.

In addition to this, circumstances testified to by Mrs. Calvert contradicted ap-pellee’s testimony and this fact should have been submitted to the jury.

The appellee and his wife designated in the language heretofore quoted from the deed of trust dated August 24, 1927 Lot 18 in Block 63 as their homestead. They had erected a house of several rooms in which they lived with their children until after the lot and premises were sold to the Whaley Lumber Company under execution on July 2, 1929. The testimony tends to show that on August 24, 1927 when the deed of trust was executed Lots 19. and 20 were used for gardening purposes, chicken yard and probably a cow lot. The lots were not completely fenced and, in our opinion, the testimony is' not so conclusive as to warrant the court in holding that when the deed of trust was executed Lots 19 and 20 were as a matter of law a part of the homestead.

The judgment is reversed and the cause remanded.


author: WALKER, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. McDANIEL.
    No. 3633.
    Court of Civil Appeals of Texas. Beaumont.
    April 12, 1940.
    Rehearing Denied May 4, 1940.

      Gordon, Sharfstein, Bell & Weinert, of Beaumont, for appellant.
    K. W. Stephenson, of Orange, for ap-pellee.
   WALKER, Chief Justice.

This is a compensation case, with appel-lee, I. M. McDaniel, the employee, and Federal Underwriters Exchange the compensation insurance carrier. On the 28th day of August, 1939, on the verdict of the jury finding the essential fact», judgment was rendered in appellee’s favor against appellant for the sum of $4,441.57, to be paid in a lump sum, with interest at the rate of 6% per annum from date of the judgment, from which appellant has duly prosecuted its appeal to this court. No assignment is presented against the sufficiency of the evidence to support the findings of the jury on the issues of total, permanent incapacity, and of the lump sum settlement. Appellant’s principal attack is directed against the findings of the jury on the issue of “good cause” for the delay in filing his claim with the Industrial Accident Board from May 30, 1938, the date of the injury, to February 4, 1939.

Section 4a of Art. 8307, Vernon’s Ann. Civ.St. provides: “Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in case of death of the employé or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the board.”

The jury found that: (a) Appellee’s employer, Peavy-Moore Lumber Company, had notice of his injury within 30 days after May 30, 1938, the date he was injured; (b) Appellee filed his claim for compensation with the Industrial Accident Board; (c) immediately after his injury, Dr. M. M. Hearne, the company physician, advised appellee that his injury would be temporary; (d) from time to time after he was injured, Dr. Hearne advised ap-pellee that his injury would be temporary; (e) immediately after his injury. Dr. Hearne advised appellee that his injury was not of a permanent nature; (f) from time to time after he was injured, Dr. Hearne advised appellee that his injury was not of a permanent nature; (g) ap-pellee relied upon the advice given him by Dr. Hearne; (h) the advice given appel-lee by Dr. Hearne caused him to delay filing his claim for compensation with the Industrial Accident Board; (i) on account of the advice given him by Dr. Hearne, appellee delayed filing his claim for compensation from June 1, 1938, to February 4, 1939; (j) the advice given appellee by Dr. Hearne “constituted good cause” for appellee “not filing his claim with the Industrial Accident Board”; (k) appellee “had good cause” for not filing his claim with the Industrial Accident Board from June 1, 1938, to February 4, 1939, and he had good cause “for not filing his claim for compensation during all of such period of time”; (1) on or about the 22d day of December, 1938, W. S. Miller, one of appellant’s representatives, stated to ap-pellee that it would not be necessary for him to file a claim for compensation with the Industrial Accident Board, and appel-lee believed and relied upon the statement made to him by W. S. Miller, and the statement made to him by W. S. Miller caused him “to delay the filing of his claim for compensation with fhe Industrial Accident Board until the date that the same was filed,” “because of the statement so made to him * * * by the said W. S. Miller” appellee “had good cause for not filing his claim for compensation with the Industrial Accident Board until the same was filed,” and “such good cause” continued to exist from the time Miller made his statement to appellee until appellee filed his claim for compensation with the Industrial Accident Board.

On the issue of “good cause” the court, in rendering judgment, found the following facts supplementary to. the jury’s verdict :

“That the said company had notice of plaintiff’s injury within thirty (30) days after the same was received; that the plaintiff did not present a claim for compensation to the Industrial Accident Board of the State of Texas until the 4th day of February, 1939, but had good cause for not presenting his said claim for compensation to the Industrial Accident Board from the date of his said injury until the date he prepared his claim for compensation and forwarded the same to the Industrial Accident Board. In this connection, the court finds that the defendant was a laboring man, being uneducated and barely able to read and write. That the plaintiff, immediately after his injury was received, consulted Dr. M. M. Hearne, the doctor for the Peavy-Moore Lumber Company, at Deweyville, Texas, and was advised by the said doctor that his injury was not permanent, and that the plaintiff would in a short time fully recover. That the plaintiff continued to consult the said Dr. Hearne from time to time until on or about the date that his claim for compensation was prepared and filed with the Industrial Accident Board. The court finds that, notwithstanding the fact that the plaintiff suffered pain from the date of his injury, he relied .upon the advice of the said Dr. Hearne from the date the said injury was received until on or about the date that his claim was prepared and forwarded to the Industrial Accident Board, as just stated. That after the plaintiff received the said injury, he suffered pain all along, but such pain was less severe at times and -he had reason to believe that his injury was not permanent and that he would recover, and he was encouraged by the advice of the said Dr. Hearne, and, desiring to work, believed all along that the representations of the said Dr. Hearne were true.

“The court further finds that on or about the 22nd day of December, 1938, a representative of the defendant called to see plaintiff and endeavored to conclude a settlement with him, and at such time advised the plaintiff that it was not necessary for him, the plaintiff, to present a claim for compensation to the Industrial Accident Board; that at such time the plaintiff was still unaware of his true condition ;. and that, while the plaintiff understood when he was first injured that he would be required to file a claim for compensation if he was permanently injured, he, realizing that the said agent was fully informed and acting with authority, believed that the representation so made was true, and that it would not be necessary for him to file a claim for compensation; and, relying upon such representation, the plaintiff did not prepare and forward his claim to the Industrial Accident Board until the 4th day of February, 1939, when he first learned that such claim had to be filed. That he relied upon the representation of said representative from the date such representation was made until the claim for compensation was actually prepared by him and forwarded to the Industrial Accident Board on the 4th day of February, 1939.

“The court further finds that the defendant was relying upon the representations of the said Dr. M. M. Hearne from the date of his injury until on or about the 22nd day of December, 1939, and that the evidence to this effect was undisputed and born out by the verdict of the jury; and further, that the plaintiff was relying upon the representations of the said Dr. Hearne when, on the 22nd day of December, 1938, he was told by the said representative of the defendant that he did not have to file a claim for compensation. That because of the advise received by the plaintiff from the said Dr. Hearne, and from the information received by the plaintiff from the said representative of the defendant, he, the plaintiff, did not file his claim for compensation from the date of his injury until the date that the same was prepared by him and forwarded to the Industrial Accident Board on the 4th day of February, 1939. That the statements of the said Dr. Hearne and the representation of the said representative constituted a good cause for the failure of the plaintiff to file his claim for compensation before the same was prepared by him on the 4th day of February, 1939, and filed with the Industrial Accident Board on the 8th day of February, 1939.

“The court finds that due to the advice • received by the plaintiff from the said Dr. Hearne and the representation of the agent or representative of the defendant, the plaintiff was misled and deceived; that the said Dr. Hearne gave the advice to plaintiff in good faith, but yet nevertheless, the plaintiff was deceived or misled about his true condition, and, while Dr. Hearne believed that the plaintiff’s injury was not of a permanent nature and that plaintiff would recover, the plaintiff finally contracted traumatic neuritis as a result of said injury, and as a result of the injury and such disease, the plaintiff suffered a feverish condition at times and suffered a pain throughout his entire body. Further, in this connection the court finds that on or about the 22nd day of December, 1938, the agent of the defendant did lead the plaintiff to believe that it would not be neces.sary for him, the plaintiff, to file a claim •for compensation, and that due to the ad■vice of Dr. Hearne and the representation -of the defendant’s agent, the plaintiff did •not file his claim for compensation before the date the same was prepared and filed by him; and that during all of the period of time intervening between the date of •plaintiff’s injury and the date of the claim for compensation and the filing thereof •with the Industrial Accident Board, the ■plaintiff had good cause for not filing his said claim for compensation because of the advice of the said Dr. Hearne, the representation of the agent of defendant, and because of the fact that plaintiff would apparently improve from time to time, and ‘.because of the fact that the plaintiff was an uneducated man and barely able to read and write, and because of plaintiff’s desire to work, and because of plain tiff’s utmost faith and confidence in the said Dr. M. M. Hearne.”

Appellant has presented no assignments against the findings of fact of the trial court.

The Commission of Appeals, in Ward et al. v. Etier, 113 Tex. 83, 251 S.W. 1028, 1029, answering certified questions for the Supreme Court, ruled that it was the “better practice” for the trial court to prepare and file separate findings of fact on issues not submitted to the jury, and which in no way conflict with the findings by the jury. On that point, construing Art. 2190, Vernon’s Ann.Civ.St, the court said: “By authority of the statute, the findings on all such issues, when not written and filed by the court, upon appeal or writ of error, are deemed found by the court in such manner as to support the judgment; provided there be evidence to sustain such finding. But there is nothing in the statute suggesting that the court may not reduce his findings on all such issues to writing and file them in the record. Reason would suggest this the safer and better practice, for then, instead of statutory presumptions as the foundation of the judgment, there is substituted the concrete evidence of the court’s actual findings as its basis. The legal presumption as to the findings might be contrary to the court’s actual findings, where those findings are not reduced to writing and filed; that is, the court might draw an erroneous legal conclusion from a finding of fact. In the absence of the filing of such finding the legal presumption would be that the finding of fact was such as to support the judgment, though the actual finding might have been directly to the contrary. .If' such finding were reduced to writing and filed, instead of presuming that the finding was such as would support the judgment, the judgment would, of necessity, be modified to conform to the legal results flowing from such facts.”

So, the appellate court must look to the facts found by the court in support of a judgment. On this point, see also Wichita Falls & Oklahoma Ry. Co. v. Pepper, Tex. Sup., 135 S.W.2d 79. Since the court had the power to make these supplemental findings, they are binding upon appellant except where attacked by proper assignments of error. Jefferson County Drainage District No. 6 v. Southwell, Tex.Civ.App., 32 S.W.2d 895. The findings of fact made by the trial court support the judgment, and these findings not being attacked, the judgment of the lower court may be affirmed on this ground, and it is so ordered.

However, if we are in error in that conclusion, we now proceed with a review of the facts in support of the jury’s verdict, and appellant’s assignments attacking the jury’s verdict.

Appellee testified (Q. and A. reduced to narrative): “On or about the 30th day of May, 1938, I was employed by Peavy-Moore Lumber Company, at Deweyville, in Newton county; on that date I received an injury. The first thing I did after being injured was to go to the office of Dr. M. M. Hearne, the doctor of Peavy-Moore Lumber Company. I went to him ‘all along’ from the time I was injured until about the 22nd day of January, 1939; I continued to see him during all of that time. After I was injured, I returned to my work and worked for Peavy-Moore Lumber Company 17 or 18 days, something like that, in the same line of employment. At the end of that time, well, my work at Deweyville required — I had to work on two floors, up stairs and down stairs. If we shut down it had us running up and down the steps and I couldn’t get up and down the steps; it hurt my leg; and I got a job at Orange at the paper mill where I would have one floor to work on and didn’t have any carriage or anything to get around on. The work I was employed to do at Orange was lighter work, I didn’t have any steps to climb up or down. Doctor Hearne told me each time I would go to him that my injury would get well, and told me it would do better if I kept it exercised, and I did what he told me to do. He would tell me every time I would gó my leg would get well, but he never did give me anything but one bottle of medicine and told me to wear a brace. I*continued to see Dr. Hearne all during the time from the time I was injured until about the 22nd day of January, 1939; all during that time Dr. Hearne told me all the way through I would recover. I went to Dr. Pearce between the 20th and 23rd of last January (1939); I went to him to find out the condition of my leg. At that time I found out that I had an injury to my leg that would not get well. Up to January 20, 1939, my leg hadn’t gotten any better; it was worse than on the 10th or 12th of December, 1938. On or about that date one of defendant’s representatives called on me; I had a conversation with this representative. Well, I talked to him about getting another Doctor or doing something to see what was the matter about my leg and my condition; I told him I wasn’t going to be able to keep on much longer if there wasn’t something done. He said ‘Well, he was going into headquarters and he would be back about the first of the year and they would do something about it.’ He wanted me to settle with them for $25.00, the first one that come, and I told him I didn’t know my condition and we ought to get another doctor, send me somewhere and find out what was the matter; I didn’t want any settlement; that would take care of that. * * * Well, he came ■ over there and we talked about my condition. He came over to Deweyville and talked to that Doctor to find out more about it. He came back 'and he said he wanted to settle with me and he said he would give me $25.00. I told him I didn’t want to settle; I wanted to get some more Doctors to examine me and see about my condition; whether I would get will or not. The defendant’s adjuster talked to me the first time on the 12th or 14th day of December, 1938. * * * He me — j t0id him if he didn’t do something I would have to take it up with the Board. He told me it wouldn’t be necessary to do that, he would make everything satisfactory. * * * He told me it wouldn’t be necessary; a satisfactory settlement would be made and it wouldn’t be necessary to file a claim with the Board; and told me the way it was, I had been working a good deal and he couldn’t do much about it and he went into headquarters and would be back about the first of the week. The adjuster offered me $25.00. He told me that he would come back about the first of the year and do something about it; the first adjuster didn’t come back, a Mr. Zimmerman came back the first week in January, and offered me $100.00; that offer didn’t appeal to me. No, sir; I told him I wouldn’t file any claim, I wanted him to get another Doctor and see what was the matter with my leg and get the thing straightened out. I knew at that time that I wasn’t going to accept the $100.00. Well, the conversation was that he offered to pay me $100.00. I wanted him to send me to another Doctor or pay me compensation while I was off and get me another Doctor to treat my leg and see what he could do about it; and he told me he would be back in two weeks. I knew that I didn’t want to settle for $100.00 regardless of what any Doctor might think of my condition. I told Mr. Zimmerman that if there wasn’t anything more than that wrong with me I didn’t want anything. After Dr. Pearce examined me, I went back to Deweyville to Dr. Hearne and told him what Dr. Pearce said; he didn’t examine me any more. He told me that Dr. Pearce should not have told me that because he didn’t know whether or not my leg would get well. At that time he told me that my leg would get well. After I saw Dr. Hearne at that time, I went over to the office of Mr. Carroll Walters, the head bookkeeper of Peavy-Moore Lumber Company, at Deweyville, and talked to him about my condition. He gave me the address of the defendant’s adjuster, and told me to write him; I did write the insurance company. That letter was dated January 31, 1939. I believed all along what Dr. Hearne told me; I didn’t want to believe anything else; I relied upon what he told me; all along when I went back to his office I would argue with him and tell him I wasn’t getting any better; he told me it would get well and I believed what he told me until I went to see Dr. Pearce; I trusted Dr. Hearne explicitly; I relied upon what he told me — he was supposed to know; he was supposed to know and I thought I would get well. I went to Dr. Pearce between the 20th and 23rd of January, 1939 — I went to him to find out about the condition of my leg. From the date I was injured, up until I saw Dr. Pearce— all during that, time — I believed that Dr. Hearne was making true representations to me about my condition. On or about the 12th or 14th of December, the defendant’s adjuster told me that it wouldn’t be necessary to present a claim for compensation and that he would make everything satisfactory. I knew that it was necessary to make a claim to the Industrial Accident Board; I knew that fact in May, 1938, I knew it on the 10th or 12th of December, 1938. One is supposed to make a claim unless he has a good reason for not doing it; whether or not one is required to make a claim to draw compensation depends on his condition; when men get hurt at the mill I knew that it filed claims. When I talked to Mr. Miller he told me I didn’t have to file a claim; he told me it wouldn’t be necessary — there would be a satisfactory settlement made. He told me — I told him if he didn’t do somthing I would have to take it up with the Board. He told me it wouldn’t be 'necessary to do that, he would make everything satisfactory. I relied on what he told me. He told me it wouldn’t be necessary; a satisfactory settlement would be made and it wouldn’t be necessary to file a claim with the Board ; and told me the way it was, I had been working a good deal and he couldn’t do much about it and he went into headquarters and would be back about the first of the week. I filed my claim about the 1st of February. You (speaking to his counsel) told me I would have to file a claim. Your information to me was the first I knew that I had to file a claim for compensation after I had had that conversation with Mr. Miller. After I employed you (his counsel) I made out a claim for compensation and filed it; my claim is dated the 4th day of February, 1939. I continued to work until about the 28th of March, 1939; I worked until I could not work.”

Dr. M. M. Hearne testified: “From time to time Mr. I. M. McDaniel came to see me and I discussed with him his condition. I told him in all instances that, in my opinion, he would recover. I recommended to him to continue to use his leg; yes, I thought he could go ahead and work.”

Mrs. I. M. McDaniel testified: “After Mr. McDaniel was injured, from time to time he consulted Dr. Hearne — all along— about his condition; sometime his leg would get better and other times it would get worse; Dr. Hearne was treating him and told him his leg was going to get well; we had lots of confidence in Dr. Hearne .and Mr. McDaniel believed his leg would get well; it would get better and get worse, and Mr. McDaniel went to work when he ought not to; he was off two days — he was off, but he was anxious to work.”

The testimony, as summarized, supports the answer of the jury to all questions submitted to them on the issue of good cause, and the supplementary findings made by the court. The facts found by the jury support the jury’s answer that “good cause” existed. Under the evidence, appellee believed that his injuries were trivial and that he would get well, and for that reason delayed filing his claim. In Texas Employers’ Ins. Ass’n v. Clark, Tex.Civ.App., 23 S.W.2d 405, 408, the court said: “That the employee did not believe his injuries to be serious would clearly afford a good cause for not giving notice and filing claim until it was learned that they were serious. Compensation is not provided for pain and suffering, but for loss of wages, and there would arise no necessity for giving notice or filing a claim so long as the employee lost no time from his work, but believed his injuries were trivial.”

See also Western Casualty Co. v. Lapco, Tex.Civ.App., 108 S.W.2d 740. The facts in the case at bar have direct support in the Clark case — believing that his injuries were trivial, and that he would get well, appellee did not file his claim until the 4th day of February, 1939. The fact that appellee suffered pain off and on from the date he was injured until he filed his claim, did not destroy his good cause. On that very point, in Gulf Casualty Co. v. Taylor, 67 S.W.2d 415, 416, this court said: “Under the evidence, from the time appellee was injured up until just before he filed his claim with the Industrial Accident Board, he was advised by his attending physicians that his injury was temporary and not permanent, that he would recover under the treatment that was given him, and, though he was in constant pain from the date of his injury up to the time he filed his claim, his testimony was that he believed these statements, and, relying thereon, did not file his claim with the Industrial Accident Board. These facts were pleaded by appellee, and we think thereby the issue of good cause was duly raised.”

That appellee’s injury was slow in developing into a permanent, total incapacity, since he believed that his leg would get well, did not destroy his good cause. Texas Employers' Ins. Ass’n v. Jones, Tex. Civ.App., 70 S.W.2d 791, affirmed by Supreme Court, 128 Tex. 437, 99 S.W.2d 903. See also Texas Employers Ins. Ass’n v. Little, Tex.Civ.App., 96 S.W.2d 677. The evidence supports the trial court’s conclusion that appellee was ignorant. In Western Casualty Co. v. Lapco, Tex.Civ. App., 108 S.W.2d 740, the court held that a representation made by one of the insurance company’s agents to an ignorant claimant that she was not entitled to compensation for the death of her husband was sufficient to support the issue of good cause. In Zurich General Accident & Liability Ins. Co. Ltd., v. Lee, 135 S.W.2d 505, this court held that representations made to the claimant by his doctor that his eye trouble was not due to an injury, supported the issue of “good cause” for not filing his claim from May 20, 1936, to July, 1938. On authority of the cases cited, we overrule appellant’s assignments that the evidence was insufficient to raise the issue of good cause, and that the findings of the jury were against the overwhelming- weight and preponderance of the evidence.

The court did not err in refusing to submit appellant’s requested issue whether appellee, prior to November 30, 1938, “had begun to doubt Doctor Hearne’s statement to the effect that he would recover from his injury.” This issue was a mere negative submission of the affirmative facts submitted by the court’s charge. It has been too often held to require citation of authorities that the trial court is not required to submit the simple negative to the claimant’s grounds of recovery.

Appellant requested the court to submit an issue that upon November 30, 1938, appellee knew that his condition had not responded to treatment. This issue was merely evidentiary; that he knew that his condition had not responded to treatment did not take from him the right to accept and rely upon the medical advice of Dr. Hearne.

The requested issue that since ap-pellee’s condition had not improved between November 30, 1938,. and December 10, 1938, whether appellee “continued to rely upon the statements of Dr. Hearne to the effect that he would get well,” was a mere resubmission of issues embodied in the main charge.

By two special issues, appellant requested' the court to send to the jury whether or not appellee, on December 10, 1938, “believed at such time that his physical condition was not improving”; whether or not at that time he “doubted the statements of Dr. Hearne to the effect that he would get well.” What we have said above in ruling on appellant’s requested issues controls these requested issues.

We give special issue No. 7-E: “From a preponderance of the evidence, during what period of time do you find that plaintiff delayed filing his claim for compensation, if he did so delay the filing thereof, on account of the advice, if any, given to him by the said Dr. M. M. Hearne?”

Appellee as one ground for good cause plead that he consulted Dr. Pearce on the 20th of January, 1939; he did not plead that he ceased to rely upon the representations made to him by Dr. Hearne subsequent to January 20, 1939. On that statement it was not error by the form of issue No. 7-E to permit the jury to return a finding that appellee delayed the filing of his claim, relying on the advice given him by Dr. Hearne from June 1, 1938, to February 4, 1939. Issue No. 7-E was not “a comment upon the weight of the evidence”; the form of the issue did not suggest to the jury that appellee’s reliance upon the advice given him by Dr. Hearne would constitute “good cause.”

It was not error “to refuse the defensively tendered issue inquiring as to whether or not after entertaining settlement negotiations claimant was ever willing to accept any offer made to him by an adjuster of the Company and whether claimant ever communicated any offer which he would accept.” This was nothing more than an evidentiary issue; notwithstanding appellee was not willing to accept the offers of settlement made by appellant’s agents and, in turn, did not submit an offer that he would accept, did not destroy, as a matter of law, his right to rely upon the representations made by the agents that they would give him a settlement, and that it was not necessary for him to file his claim.

We give special issue No. 7-F: “Do you find from a preponderance of the evidence that the advice given by the said Dr. M. M. Hearne to plaintiff, if any, constituted good cause for plaintiff not filing his claim with the Industrial Accident Board?”

We overrule the exception that this issue sent to the jury “a mixed question of law and fact,” which the jury had no right to answer.

Special issue No. 9-a: “Do you find from a preponderance of the evidence that the plaintiff believed the statements so made to him, if any, by W. S. Miller, at said time?” did not “cast upon the defendant a greater burden than is imposed by law requiring the jury to find a negative answer by the preponderance of the evidence, to the prejudice of defendant.”

Special issue No. 16: “Do you find from a preponderance of the evidence that such total incapacity, if any, of plaintiff resulting from such injury, if any, is permanent?” was not subject to the exception that it required “the finding of a negative answer by the jury from a preponderance of the evidence, thereby imposing upon defendant a greater burden than is imposed by law, although defendant should be- entitled to a negative answer should the jury find that the evidence is evenly balanced and not preponderating on their side.”

What we have said overrules all of appellant’s assignments and propositions brought forward in its brief. The judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


author: O’QUINN, Justice.

text:
    SLATTERY et al. v. UVALDE ROCK ASPHALT CO.
    No. 3666.
    Court of Civil Appeals of Texas. Beaumont.
    May 8, 10, 1940.
    Rehearing Denied May 29, 1940.

      D. L. Broadus, of Beaumont, for appellants.
    Geo. A. Weller, of Beaumont, for ap-pellee.
   O’QUINN, Justice.

On the 11th day of September, 1939, on an instructed verdict, judgment was rendered in -favor of appellee, Uvalde Rock Asphalt Company, against appellants, Anna, Mayme and Nora Slattery, for the principal sum of $397.20, interest in the sum of $226.16, and attorney’s fees in the sum of $150, making a total recovery of $773.36, with interest at the rate of 7% per annum from date of judgment, and foreclosing “an assessment lien existing as of December 17, 1929, as well as a valid, binding and subsisting mechanic’s and materialman’s lien existing as of May 6, 1930, upon Lot Five (5) in Block Ten (10) of the Kirby Addition to the City of Beaumont,” and decreeing “that said property be sold as under execution and the proceeds applied to the satisfaction of the judgment herein obtained and all costs of sale and costs of suit.” The principal and interest of the judgment was the balance due on a paving certificate dated the 10th day of June, 1930, in the principal sum of $663, authorized by an ordinance duly passed by the City Commission of the City of Beaumont on the 15th day of April, 1930, directing and ordering paved the property described in the judgment. Subsequently, on the 6th day of May, 1930, appellants entered into a written contract creating a mechanic’s and materialman’s lien on the property described in the judgment, payable by the terms of the written contract as follows'.

“July 10, 1930 $132.60
June 10, 1931 132.60
June 10, 1932 132.60
June 10, 1933 132.60
June 10, 1934 ' 132.60”

The paving certificate provided for ‘ “a reasonable attorney’s fee” on default by appellants in their payments, while the written contract executed by them provided for an attorney’s fee of 10% of the amount of the obligation incurred by appellants under the mechanic’s and ma-terialman’s lien. No point is made that appellee did not comply fully with its obligations in paving appellants’ property.

The history of this litigation ,is as follows: On the 4th day of August, 1936, appellee filed its suit No. 48416 in the district court of Jefferson County against appellants, praying for judgment upon, a promissory note in the sum of $92.61, and for foreclosure of a contract lien on lot 5, block 10 of Kirby Addition, being the property described in the judgment, supra. Citation was duly issued and served on appellants, who filed their answer. Subsequently, on the 2d day of March, 1937, appellants paid in full the indebtedness described in appellee’s original petition.

On the 1.0th day of September, 1936, after appellants had answered, but before they had paid off and discharged the indebtedness described in the original petition, appellee filed its first amended original petition in cause No. 48,416, replead-ing the indebtedness described in the original petition, and as a new cause of action pleading the assessment lien, the contract lien, and the balance due on these liens as given above, praying for judgment for the balance due, and for foreclosure of the liens; in_this petition appellee prayed for judgment for attorney’s fees at 10%. Citation did not issue on the first amended original petition until the Sth day of July, .1938; prior to the issuance of citation appellants made no appearance in cause No. 48,416, subsequent to the date they filed their original answer on the 12th day of August, 1936, in answer to the original petition. Without the service of citation on the first amended original petition, and without any answer filed thereto by appellants, on the 13th day of May, 1938, appellee took a default judgment against appellants on the amount due on the paving certificate and the contract lien as , above described, being $397.80 principal, with interest from the 18th day of May, 1931, at 7%, and for an attorney’s fee in the sum of $100, with foreclosure of the assessment lien.

On the 25th day of June, 1938, appellants filed in the district court of Jefferson county their suit against appellee, No. 52,870, in the nature of a direct attack against the default judgment rendered against them on the 13th day of May, 1938, alleging that the default judgment was void and pleading the facts upon which that contention was based. On the 2d day of July, 1938, appellee filed its answer to cause No. 52,870, consisting of a general demurrer and general denial. On July 6, 1938, the court entered its judgment in cause No. 52,870, on an agreement of the parties, vacating, setting aside and annulling and making void and of no further force and effect the default judgment rendered in No. 48,416 on the 13th day of May, 1938. Upon the entry of that order, appellee paid the costs in cause No. 52,870 and under its direction the clerk of the district court of Jefferson County, on the 5th day of July, 1938, issued citation to appellants in cause No. 48,416, which was served on them on the 6th day of July, 1938. On July 30, 1938, appellants appeared in cause No. 48,416 and filed their answer therein, pleading in defense to appellee’s cause of action, as plead in its first amended original petition, the statutes of limitations of two and four years. On the 28th day of September, 1938, appellee filed in cause No. 48,416 its second amended original petition, pleading generally the same facts and praying for the same relief as in its first amended original petition, and praying for attorney’s fees of 10%. On’ the pleadings of both parties, cause No. 48,416 was set for trial in October, 1938, but was not reached for trial.

On the 2d day of December, 1938, appel-lee filed a motion in cause No. 52,870,.de-scribed above, and its amended answer, pleading by way of cross action against appellants the same cause of action plead in its second amended original petition. Appellee’s original counsel had withdrawn from the cause, and this motion and cross action was filed by new counsel. For ground of relief in its motion and cross action, appellee plead that the agreed judgment in cause No. 52,870, as described above, was not a final judgment, and that the same was entered without its knowledge or consent, and prayed that the judgment by agreement be vacated and that cause No. 52,870 be tried on appellants’ bill of review and on its motion and cross action. On the 2d day of December, 1938, appellee’s motion was heard by the court and in all things overruled, which order became final.

On the 7th day of December, 1938, ap-pellee filed a new suit in the district court of Jefferson county, being No. 53,948, in the nature of a bill of review, praying that the agreed judgment entered in cause No. 52,870 be reviewed. In January, 1939, ap-pellee filed a petition in this court praying for leave to file a petition praying for a mandamus against appellants and one of the district judges.of Jefferson county, compelling the judge to enter an order vacating the agreed judgment entered in cause No. 52,870, and to proceed to trial of that cause; this court refused permission to file the petition for mandamus. It was the theory of appellee that all three causes, Nos. 48,416, 52,870, and 53,948, were pending on the docket of the district court of Jefferson county at the same time and, on its motion, the clerk of the district court of Jefferson county set all three cases for trial on September 9, 1939.

On September 7, 1939, appellee filed its third amended original petition in cause No. 48,416,' designated by it as its second amended original petition. Appellants filed motions to have causes' No. 48,416 and No. 52,870 stricken from the active docket; they answered cause No. 53,948 by pleading demurrer, general denial, etc. The motion to strike cause No. 48,416 was overruled; the motion to strike cause No. 52,870 was granted; the general demurrer was sustained to appellee’s petition in cause No. 53,948. Appellee reserved no exception to the order of the court striking cause No. 52,870, but has prosecuted to this court its appeal against the order of the court sustaining the general demurrer to its petition in cause No. 53,948, which appeal is now under submission on the docket of this court as Uvalde Rock Asphalt Company v. Anna Slattery et al., 140 S.W.2d 992.

Cause No. 48,416 proceeded to trial on its merits on the 11th day of September, 1939, as if no default judgment had been entered therein, and final judgment was entered therein, as set out in the opening statement above. From the final judgment so entered, appellants have duly prosecuted their appeal to this court.

The first point presented by appellants in their brief is that appellee’s cause of action as plead in their first amended original petition, upon which final judgment was entered, was barred by the statutes of limitations of two and four years. This contention is denied. When the first amended original petition was filed, cause No. 48,416 was an active case on the docket of the district court of Jefferson county, and at the time it was filed the last installment due on the contract lien was not barred by limitation. The written instrument executed by appellee evidencing the contract lien, also by its terms constituted a promissory note whereby on a valuable consideration appellants promised to pay appellee the sum of $663, or whatever sum was due on the paving contract, in the five installments detailed above, with interest at 7%, and with an attorney’s fee of 10%. Article 5520, Vernon’s Ann.Civ.St, provides “that where a series of notes may be given or any note may be made payable in installments, or if any other instrument is executed which creates an obligation on the Vendee or Grantee of real estate to pay for the same in installments or partial payments, limitation shall not begin to run until the maturity date of said last note or installment.” Under this article, as construed by Shepherd v. Woodson Lumber Co., Tex.Civ.App., 63 S.W.2d 581, and Hutton v. Harwell, Tex.Civ.App., 95 S.W.2d 467, the past due installments on the contract lien were not barred at the time the first amended original petition was filed.

But appellants insist that appellee rested under the duty to have citation issued on its first amended original petition within a reasonable time after it was filed, and since citation did not issue, that the mere filing of the first amended original petition did not toll the running of the statutes, and that citation was not issued until after more than four years after the maturing of the last installment due under the contract lien; appellants further contend that since, on the undisputed facts, the first amended original petition was filed without an order of the district court granting permission for its filing, appellants were not required by law to take notice that it had been filed.

On the whole record, we say that appellee diligently prosecuted cause No. 48,416 against appellants. On the undisputed facts, it did not merely file its first original amended petition and then abandon the litigation, but was active, as between it and appellants, in prosecuting this litigation. Negotiations were conducted between appellee and appellants in an effort to adjust the cause of action as plead in the first amended original petition. Out of these negotiations, appellants paid in full the demand claimed against them in the original petition. On this construction of the facts, it is our conclusion that the filing of the first amended original petition was sufficient to toll the running of the statutes of limitations against appellee’s cause of action as plead therein.

The general rule is- that a defendant who has once entered his appearance in a cause is charged with notice of all amendments thereafter filed, and that, though the plaintiff abandons his original demand and amends by setting up a new cause of action, no new process is required where the defendant is in court by answer filed by him. Ballard v. Carmichael, 83 Tex. 355, 18 S.W. 734; Davis v. Wichita State Bank & Trust Co., Tex.Civ.App., 286 S.W. 584; Farrell v. Gilbert, Tex.Civ.App., 245 S.W. 775; Mexia Independent School District v. City of Mexia, Tex.Sup., 133 S. W.2d 118; Phillips v. The Maccabees, Tex. Civ.App., 50 S.W.2d 478; Puntney v. Moseley, Tex.Civ.App., 237 S.W. 1116; Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136. Appellants invoke an exception to the general rule that, where the amendment is filed without leave of the court, the defendant is entitled to notice of the new cause of action, without which judgment by default should not be rendered against him. The exception invoked by appellants has recognition in the following authorities. Thomas Goggan & Bros. v. Morrison et ux., Tex. Civ.App., 163 S.W. 119; Turner et al. v. City of Houston, 21 Tex.Civ.App. 214, 51 S.W. 642; Tyson v. First State Bank & Trust Co., Tex.Civ.App., 154 S.W. 1055; Phillips et ux. v. The Maccabees, supra. But the exception does not support appellants’ contention that appellee’s cause of action was barred by limitation. In 33 Tex. Jur. 496, it is said: “The object of requiring leave to amend is to give notice of the amendment to the .adverse party, and where leave has not been obtained, and no notice given, the introduction of testimony based on the amended pleading may be disallowed.”

While citation did not issue on the first amended original petition until July 5, 1938, appellants had written .notice from appel-lee that it had been filed, that it was asserting against them by this amended petition a cause of action for the balance due on the contract lien, and that it was its intent to prosecute this new cause of action to judgment. It is clear, on the undisputed facts, that there is no inference against this conclusion, that appellee filed its first amended original petition with the bona fide intent to prosecute it to judgment, and that the delay in issuance of the citation was due to its construction of the law that it was not necessary to issue new citation.

We sustain appellants’ contention that appellee’s attorney’s fees was limited to 10%; that it could not recover “a reasonable attorney’s fee.” True, the paving certificate provided for “a reasonable attorney’s fee” but the execution by appellants to appellee of the contract lien created a novation as to the attorney’s fee, and changed the amount from a reasonable sum to the liquidated sum of 10%.

This appeal presents another important question, fundamental on the face of the record. When this cause of action was tried and judgment entered herein, was it a pending case on the docket of the .district court, or had it been reduced to judgment by the default judgment entered against appellants on the 13th day of May, 1938? Appellee contends that the agreed judgment, vacating the default-judgment, was nothing more than the granting of. a new trial, and that, since this order was entered at a subsequent term to the entry of the default judgment, the court was without power to grant a new trial, citing Hermann Hospital Estate v. Nachant, Tex.Com.App., 55 S.W.2d 505. The agreed judgment was not entered on the theory • that the default judgment was merely voidable, but on the theory that it was absolutely void. The court so found by its judgment, and having decreed that the default judgment was void, reinstated cause No. 48,416 as a pending case; that decree is now final and not subject to collateral attack. Also, though we have found no authority in point, it is our conclusion that, on agreement of the parties, the court, at a subsequent term, may vacate a judgment and reinstate the cause on its docket as a pending action.

The judgment of the lower court is in all things affirmed except on the item of attorney’s fee, and in that respect the item of $150 for attorney’s fee is stricken from the judgment, and' in lieu thereof appellee is allowed 10% of the amount of its claim as a contractual attorney’s fee.

Reformed and affirmed.

On Appeal for Motion to Retax Cost.

An examination of the transcript shows that appellants had included therein certain immaterial matters. The Motion to Retax is granted to the extent that one-half the costs of appeal are taxed against' appellants and one-half against appellee.


text:
    UVALDE ROCK ASPHALT COMPANY, Appellant, v. Anna SLATTERY et al., Appellees.
    Ne. 3647.
    Court of Civil Appeals of Texas. Beaumont.
    May 8, 1940.
    Rehearing Denied May 29, 1940.
    Geo. A. Weller, of Beaumont, for appellant.
    D. L. Broadus, of Beaumont, for appel-lee.
   WALKER, Chief Justice.

The nature of this suit is fully stated in our opinion filed this day in Slattery et al. v. Uvalde Rock Asphalt Company, 140 S.W.2d 987, written by Mr. Associate Justice O’Quinn. Appellant’s petition was subject to the general demurrer. But, if we are in error in that conclusion, every issue in this case is now moot.

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


author: GERMAN, Commissioner.

text:
    SAN SABA NAT. BANK OF SAN SABA v. PARKER.
    No. 7511.
    Supreme Court of Texas.
    June 12, 1940.
    N. C. Walker, of San Saba, for plaintiff in error.
    J. H. Baker, of San Saba, for defendant in error.
   GERMAN, Commissioner.

This suit was instituted in the District Court of San Saba County by San Saba National Bank of San Saba as plaintiff. It will be so designated in this opinion. The suit was against J. M. Parker and J. D. Parker as defendants. J. D. Parker is the only defendant remaining, and will be so designated here.

The sole question for decision is one of limitation. The note sued upon matured on October 12, 1932. Plaintiff filed suit on October 8, 1936, and on the same date caused citation to be issued and placed in the hands of the sheriff. This citation was returnable October 19, 1936,' for the October term of that year. On that date the attorney for plaintiff learned that service had not been completed, and requested that the case be continued to the April 1937 term. About March 1, 1937, the attorney called the district clerk by telephone and was advised that service had been had upon both defendants. On April 20, when the case was called, the attorney discovered that service on J. D. Parker for the October term, 1936, had not been had until February 24, 1937. He thereupon again asked that the case be continued for service to the October term, 1937. On September 7, 1937, citation was duly issued and served, all of which was in time to bring the defendant into the October term, 1937. At this term defendant pleaded limitation on the ground that plaintiff had not been diligent in the issuance and service of process. The trial court made a holding to this effect, which was affirmed by the Court of Civil Appeals. 120 S.W.2d 473.

The trial court filed findings of fact, among which was included a finding that up to and including April 20, 1937, plaintiff used diligence in the prosecution of the suit, and such finding also contained the further finding that there had been no negligence on the part of the plaintiff in the prosecution of the suit to that date. The court further found that the attorney in charge of the prosecution of the case acted in the honest belief that after causing the case -to be continued for service on April 20, 1937, the issuance and service of citation on the defendant at any time sufficient to bring him into the October term of the court would constitute diligence in the prosecution of the case, and was of the opinion that the issuance of citation on September 7, 1937, which was placed in the hands of the sheriff and duly served, constituted diligence in the prosecution of the suit. Although making this finding, the trial court made a finding that the attorney did not use diligence in the prosecution of the suit from April 20, 1937, to September 7, 1937. It will be noted, however, that this finding is a mere conclusion based solely on the fact that during that period the attorney did nothing. It is plain, however, that there was nothing which he could have done which would have more effectively brought the defendant into court at the October term than was done on September 7, 1937.

It is of course settled that in addition to filing suit within the statutory period, there must be a bona fide intention on the part of plaintiff to obtain service and prosecute the suit with effect, in order that the statute of limitation may be avoided. We have in this case the clearest evidence of an intention to prosecute the case with effect by the issuance of citation immediately after the filing of petition, the placing of same in the hands of the sheriff, and by proper inquiry made of the clerk within due time. The trial court found that the attorney for plaintiff used diligence up to April 20, 1937. It occurs to us that there is absolutely no evidence indicating an intention on the part of the attorney to then abandon the prompt and effective prosecution of the suit, but he unqualifiedly entertained the intention to reduce the case to judgment, as soon as it could possibly be done in accordance with the terms of the court. The case was continued for service, and mere failure to ask for a citation, which in no event could have become more effective than the one which was issued on September 7, 1937, is not sufficient evidence to indicate negligence or an intention not to prosecute the suit to effect within a reasonable time.

We have therefore concluded that the statute of limitation could not be properly interposed as a defense to this action.

It appears that defendant merely filed a general denial, and offered no special defense to* this indebtedness. He filed no brief in the Court of Civil Appeals or in this Court. It is therefore apparent that his whole case rests upon the plea of limitation. Consequently, he has wholly failed to show that he was in any manner injured or deprived of the privilege of making any proper defense merely by the delay in issuing citation from April 20th to September 7th. We think this is a circumstance tending to indicate that there was no lack of proper diligence on the part of plaintiff as to the prosecution of its action.

Judgment of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded to the district court with instructions that judgment be entered in favor of plaintiff as prayed for.

Opinion adopted by the Supreme Court.


author: CRITZ, Justice.

text:
    CROSSLAND et al. v. DUNHAM et al.
    No. 7487.
    Supreme Court of Texas.
    June 12, 1940.
    Ramey, Calhoun & Marsh, of Tyler, and Greenwood, Moody & Robertson, of Austin, for plaintiffs in error.
    Lasseter, Simpson, Spruiell & Lowry and Saunders & Smith, all of Tyler, for defendants in error.
   CRITZ, Justice.

This suit was filed in. the District Court of Smith County, Texas,. by Mrs. Rita Crossland, joined pro forma by her husband, against Mrs. Edna Dunham and Iris Nadine Dunham to construe the last will of Carl G. Dunham, deceased. Mrs. Edna Dunham is the surviving widow of Carl G. Dunham, deceased. Iris Nadine Dunham is the minor daughter of Mr. and Mrs. Dunham. Mrs. Crossland is the daughter of Mr. Dunham by a former marriage. Mrs. Dunham was married to Mr. Dunham in 1920, and they lived together as husband and wife until the death of the husband in July, 1936. On July 19, 1928, Mr. Dunham executed his last will and testament. Omitting 'formal parts, such will reads as follows: “I hereby bequeath to my lawful wife at time of death, one-half of all my worldly property, balance to be divided equally among my children, and hereby appoint my wife the sole executrix of this my last will and testament, to serve without bond.”

The above will was executed with all the formalities to entitle it to probate in this State, and it has been duly probated in the probate court of Smith County, Texas, where Mr. and Mrs. Dunham resided at the time of Mr. Dunham’s death.

At the time the above will was executed by the husband, Mr. and Mrs. Dunham were living together as husband and wife in the State of Oklahoma, and that was the State of their residence or domicile. Mr. Dunham owned some property in Oklahoma at the time. Also, at the time Mr. Dunham had no intention to remove to Texas and reside, and had no property here.

Mr. and Mrs. Dunham continued to reside in Oklahoma from the time the above will was executed until 1931, when they moved to Texas, where they resided continuously until Mr. Dunham died. The Dun-hams brought no property here. After they moved to Texas the Dunhams prospered, and Mr. Dunham left a considerable estate, consisting of both real and personal property, all located here, and all community.

The State of Oklahoma has no community property law, and Mrs. Crossland con-’ tends that because this will was executed in the State of Oklahoma, under the circumstances above detailed, Dunham’s will, which bequeathed “all my worldly property” one-half to his wife and “balance to be divided equally among my children,” should be construed as provided by the laws of Oklahoma, and therefore as intending to embrace and devise all property which, under the laws of Oklahoma, would comprise his estate. Such contention would disregard the community property laws of this State, and would effect a considerable change in the property passing under this will from what would pass under the laws of Texas. If the laws of Oklahoma alone are looked to in construing this will to determine the property passing thereunder, the effect will be that Mrs. Dunham will take nothing under this will, because she owns in her own right one-half of this community estate. On the other hand, the two daughters will take all of Mr. Dun-ham’s community interest in this estate. If the laws of Texas are applied, Mrs. Dunham will take one-half of Mr. Dun-ham’s half of the community estate, and the two daughters will take, in equal portions, the other half. Under our laws Mrs. Dunham owns one-half of the community in her own right. Simply stated, the question to be decided is whether Mrs. Dun-ham gets as a consequence of this will three-fourths of the entire community estate and the two daughters one-eighth each, or whether Mrs. Dunham gets only one-half of the entire community estate, and the two daughters, in equal portions, the other half.

On final trial in the district court, that court construed this will as contended for by Mrs. Crossland. On appeal, the Beaumont Court of Civil Appeals reversed the judgment and interpretation of the district court, and held “that the effect and construction of wills is to be determined by the law of the testa.tor’s domicile, in so far as it relates to personal property, and by the laws of the state where the property is situated, in so far as it relates to realty. DeVaughn v. Hutchinson, 165 U.S. 566, 17 S.Ct. 461, 41 L.Ed. 827; Holman v. Hopkins, 27 Tex. 38; King v. Lowry, Tex. Civ.App., 80 S.W.2d 790, writ refused.” [115 S.W.2d 744.] As applied to this case the opinion of the Court of Civil Appeals, in effect, holds that since all the property, real and personal, owned by Mr. Dunham at the time of his death was situated in Texas, and since Mr. Dunham at the time of his death resided in Texas, the laws of Texas will determine the effect of this will, and the property, both real and personal, to pass thereunder.

We have carefully considered the above holding of the Court of Civil Appeals in the light of the briefs and arguments of counsel on both sides, and in our opinion the opinion of the Court of Civil Appeals announces the already settled rule of law in this State. In fact, we think the opinion of this Court in Holman v. Hopkins, 27 Tex. 38, supra, settles this case in conformity with the ruling and judgment of the Court of Civil Appeals. We quote the following from that opinion: “It is now the well settled doctrine that the law of the actual domicil of a testator is to govern in relation to his testament of personal property, whether the property is situated within the domicil of the testator or in a foreign country. (Story’s Conflict of Laws, sec. 467; 1 Jarman on Wills, 3.) .Büt in respect to the real property of the testator, the place where the property is situated is to govern not only as to the capacity of the testator, and the extent of his power to dispose of the property, but as to the forms and solemnities to give the will its due attestation and effect. (Story’s Con. L., sec. 474; 1 Jarman on Wills, 1.)' ‘And hence,’ says Mr. Jarman, ‘the place where the will of immovable property happens to be made, and the language in which it is written, are wholly unimportant as affecting both its construction and the ceremonial of its execution; the locality of the devised property is alone to be considered.’ (1 Id., 2.)”

It is urged by counsel for Mrs. Crossland that the Holman case, supra, “involved nothing except whether a will was valid, containing a plain devise of certain land and slaves in Texas, when the will was witnessed as required by the laws of Texas, and was not witnessed as required by the laws of Virginia, where the testatrix had her domicile when the will was made. The question of the validity of a devise of land or personalty, as dependent on the manner of execution of the will, being utterly different and determinable under utterly diverse rules, according to all authorities, from any question of interpretation of a bequest in a will of personalty qr of a devise in a will of land, anything said in the opinion on the question of interpretation could be naught but dicta.” We are not prepared to say that anything said by this Court about interpretation of the will involved in the Holman case was dicta. It is evident that the Court considered the rules of law announced in that opinion as necessary to decide the law questions before it, and we are . not prepared to say that such is not true. Also, we are of the view that we reaffirmed the rules of law an-' nounced in the Holman case by refusing the writ of error in King v. Lowery, supra.

Counsel for Mrs. Crossland argue that the opinion in the Holman case, supra, was based, or attempted to be based, on the misinterpretation of Story’s Conflict of Laws, sec. 474. We will not attempt to decide that question. It is enough to say that the opinion in the Holman case announces a clear and unambiguous rule of property in this State, which we ought not now to question or to change.

As we interpret. their briefs and arguments, counsel for Mrs. Crossland contend that when this will is considered in the light of the extrinsic evidence contained in this record, showing the circumstances surrounding and concerning the testator, the subject matter of his devises or bequests, and the claimants of his bounty, at the time of the making of this will, a latent ambiguity therein is disclosed. It is then contended that when such extrinsic evidence is considered, it discloses an intent on the part of the testator, by this will, to dispose of the entire community of himself and his wife. We are aware of the fact that under the rule of law laid down in Thompson on Wills (2d Ed.), sec. 330, pp. 407, 408, there may be instances in which extrinsic evidence may be admissible, which discloses á latent ambiguity in a will, — that is, an ambiguity which does not appear on the face of such instrument. We do not deem it necessary in this opinion to discuss such rule or to even generally define its scope,' or the character of cases to which it may be applied. It is enough to say that it cannot here be applied, because to do so would only result in refusing to apply the rule laid down in Holman v. Hopkins, supra.

We have read and' carefully considered the opinion of the Court of Civil Appeals in this case, and in our opinion it correctly disposes of this case, and gives correct rules of law for such disposition. The judgment of the Court of Civil Appeals is affirmed.