author: MONTEITH, Chief Justice.

text:
    CONTINENTAL INV. CO. v. SCHMEICH et al.
    No. 11037.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 7, 1940.
    Rehearing Denied Nov. 27, 1940.
    Elbert Roberts, Willett Wilson, and Joe Entzminger, all of Houston (Joe Entz-minger, of Houston, of counsel), for appellant.
    Albert J. DeLange, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an action originally brought by appellant, Continental'Investment Company, against, appellees. Henry Schmeich-and wife, Lela Schmeich, for foreclosure of a paving lien on Lots Nos. 7 and 8, Block 44, Brun-ner Addition to the City of Houston.

By amended pleadings appellee Farm and Home Savings and Loan Association of Missouri was made party to the action. Appellant alleged that said appellee had allowed Henry Schmeich to remove certain improvements from the property in controversy and sought recovery therefor.

In a trial before the court, a personal judgment was rendered against Henry Schmeich and that appellant take nothing against Mrs. Lela Schmeich and Farm and Home Savings and Loan Association.

Findings of fact and conclusions of law were filed by the trial court. They were excepted to by appellant.

The court found that the property in controversy had been purchased by Henry Schmeich by deed dated May 24, 1929, from J. E. Winfred, who was found to be the common source of title; that a vendor’s lien was reserved in said deed to secure a purchase-money note in the sum of $3,000 and that said note was further secured by a deed of trust of even date with said deed. He found that Henry Schmeich had lived on the property with his family from a date prior to January 1, 1930, until October, 1937; that the improvements on said property consisted of a frame building designed for use as a combination residence and retail store, and that Henry Schmeich had conducted a retail store thereon from prior to January 1, 1930, until 1932; that there were no improvements on one of the lots but. that the said two lots adjoined each other and that both were used and occupied by Henry and Lela Schmeich as a. business and residence homestead during and at all times material to the cause of action asserted by appellant. He found that neither Henry nor Lela Schmeich owned any interest in any real property other than the property in controversy during said period. He found that the note and deed of trust and vendor’s lien securing it had passed by regular chain of conveyances, for a valuable consideration, into Farm and Home Savings and Loan Association; that by instrument dated June 20, 1929, Henry and Lela Schmeich executed a new note for $3,000, maturing in monthly installments, and a new deed of trust to secure Farm and Home Savings and Loan Association in its payment; and that later Henry and'Lela Schmeich; being in default in the payment of said note, the trustee under said deed of trust sold the property in controversy and Farm and Home Savings and Loan Association became the purchaser and owner thereof at said sale and received due conveyance thereof.

The court found that by virtue of an ordinance of the City of Houston passed on ' or about October, 1930, there was attempted to be levied a paving assessment against the- property in controversy in the sum of $623, and that an assignable paving certificate in that sum had been issued by the City of Houston-to the National Paving Company; that all rights, title and interest arising by virtue of said certificate passed to Continental Investment Company, the legal and equitable holder of such certificate ; that on December 12, 1930, Schmeich and wife made and delivered to National Paving Company a mechanic’s lien contract for the purpose of additionally securing the indebtedness evidenced by said paving certificate, and that said mechanic’s lien contract, together with all rights therein, also passed to Continental Investment Company.

The controlling question involved in this appeal is whether or not the property in controversy was the homestead of Henry Schmeich and wife, Lela Schmeich, at the time the attempted paving assessment was made.

Appellant assigns error in the finding by the trial court that both of the lots in controversy were used and occupied by Henry and Lela Schmeich as a business and residence homestead during and at all times material to the cause of action asserted by appellant. It further contends that, in no event, could a homestead have been established on the lot on which there were no improvements, for the alleged reason that there was no testimony in the record that Henry and Lela Schmeich had claimed or used the two lots in controversy as a business or residence homestead, and there was no testimony of any use by them of the lot on which there were no improvements as a homestead.

David John Schmeich, the son of Henry and Lela Schmeich, testified to the facts that the family lived on the property in controversy from January, 1930, until they moved away in 1937, and that during said period neither Henry nor Lela Schmeich owned any other home or property, and that his father ran a store on said property until 1931.

Henry and Lela Schmeich in their pleadings alleged that they had claimed the property in controversy as their homestead during the times material to appellant’s cause of action, but neither of them testified in the trial court.

The trial court found as a fact that both of said lots were used and occupied by Henry and Lela Schmeich as a business and residence homestead during and at all times material to appellant’s cause of action.

It is the settled law in this state that the question as to whether or not a tract of land or a piece of land adjoining a dwelling in which an estate of homestead has been acquired is a part of the homestead, is a question of fact. Arto v. Maydole, 54 Tex. 244.

In the case of L. E. Whitham & Co. v. Kemp et ux., Tex.Civ.App., 66 S.W.2d 462, 463, in a suit brought to foreclose a paving lien, appellees defended only upon the ground that the property in question was their homestead. On a trial before the court it was found that all of said property was appellees’ homestead. Appellant was denied foreclosure, but was given judgment for its debt from which judgment the paving company appealed. The court in its opinion says: “The single issue here presented is whether lot 14 and the adjoining one-half of lot 15, in block 14 of Frary addition to San Angelo, was a part of the homestead of appellees on July 7, 1931, the date upon which appellant’s lien,, if any it had, attached. This question was a fact issue. Jones v. First National Bank (Tex.Com.App.) 259 S.W. 157; Schultz v. Schultz (Tex.Civ.App.) 45 S.W.(2d) 312; 22 Tex.Jur. 108, 111. The court having found the issue against appellant, we must view the evidence in the most favorable light in support of that finding.”

The foregoing authority and the cases cited therein are, we think, conclusive of both questions raised by appellant.

The above rule is recognized in the cases of Dillard v. Duke et vir., Tex.Civ.App., 107 S.W. 2d 414; Weiser v. Travis Cotton Seed Products Co., Tex.Civ.App., 63 S.W. 2d 246; Alamo Lumber Co. et al. v. Walker et ux., Tex.Civ.App., 103 S.W.2d 792.

In the case of Bell et al. v. Crabb et al., Tex.Com.App., 244 S.W. 371, 372, defendants defended in a suit for specific performance of a contract to convey property on the ground that it was their homestead. Both testified that the property was their homestead at all times relevant to the suit, but further testified that they had moved away from the property in controversy in that case and were living in a different city. The court held that there was no testimony tending to show that the removal by defendant and his family to the new residence and their continued occupancy thereof as a home was other than permanent in character. The court in its opinion said: “Under the evidence quoted, it follows as a matter of law that when defendants purchased the Ranger property and moved there with his family that property became the homestead of the family, and_ the property in suit lost its homestead character.”

In the case of Bayless v. Guthrie et al., Tex.Com.App., 235 S.W. 843, suit was brought to foreclose a mortgage on property claimed to be a homestead. The mortgagors had disclaimed any homestead interest therein, and designated another lot in another part of the city as their homestead. The court held that the property on which they were living constituted their homestead under the facts, and that the declaration and designation of other property did not change its character. It indicated that the true test of the homestead character of property is the use actually being made thereof, and that where property is actually used and occupied for homestead purposes the declarations or intentions of the head of the family cannot effect an abandonment of the homestead nor in any way change its character.

Under the above authorities, the court having found, on what we' deem to be sufficient evidence, that the two lots in controversy were used and occupied by Henry and Lela Schmeich as a homestead at all times material to appellant’s cause of action, appellant’s contentions must be overruled.

Further, it is the settled law ⅛ this state that a vendor’s lien on homestead property is superior to a subsequent mechanic’s lien for paving, whether this lien for paving be asserted by reason of voluntary contract or by reason of assessment made by the city’s authority. Continental Inv. Co. v. Bodenheimer, Tex.Civ.App., 102 S.W.2d 304; Texas Bitulithic Co. v. Moore et al., Tex.Civ.App., 102 S.W.2d 439; Texas Bitulithic Co. et al. v. Warwick et al., Tex.Com.App., 293 S.W. 160; State Trust Company v. Morrison, Tex.Com.App., 282 S.W. 214.

The record shows that the property in controversy was acquired by Henry Schmeich by deed dated May 24, 1929, in which a vendor’s lien was reserved to secure the payment of a note for the sum of $3,000 which was additionally secured by a deed of trust lien and that subsequently the trustee in said deed of trust sold the property in controversy to Farm and Home Savings and Loan Association.

Appellant claims under a paving certificate dated February 18, 1931, pursuant to an ordinance of the City of Houston of even date therewith. Assessment was levied by virtue of proceedings under a contract between the City of Houston and the National Paving Company, dated October 9, 1930. Appellant also claimed under a contract lien* with Heñry and Lela Schmeich, dated December 30, 1930.

It follows that since the vendor’s lien of Farm and Home Savings and Loan Association is superior to the paving lien asserted by appellant, the foreclosure of the deed of trust lien held by Farm and Home Savings and Loan Association to secure the vendor’s lien indebtedness cut off any equity that appellant may ever have had in the property in controversy, and Farm and Home Savings and Loan Association acquired the title thereto free of any claim by appellant.

For the above reasons, the judgment of the trial court will be in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    CITY OF BEAUMONT v. NIGHT et al.
    No. 3823.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 24, 1940.
    S.P. Dunn, Asst. City Atty., and E. B. Votaw, City Atty., both .of Beaumont, for appellant.
    Howth & Cruse, of Beaumont, for ap-pellees.
   WALKER, Chief Justice.

This is a suit by appellee, Sarah Night, joined by her husband, Sam Night, against the City of Beaumont and C. J. Strack, its assessor and collector of taxes, to enjoin the City of Beaumont from collecting taxes on certain property described in the petition at an assessed valuation in excess of $12,000. It is not necessary to give the allegations of the petition upon which ap-pellees prayed for relief on the final judgment. We give the prayer: “Wherefore, plaintiff prays the court issue its temporary mandatory injunction requiring defendant to accept taxes on a value of $12,000.00 on said property, and in the alternative, that defendant be temporarily restrained from collecting by suit or otherwise taxes on a value in excess of $12,000.00 and from imposing penalties and' interest and on hearing plaintiff prays that said injunction be in all things made permanent, for cost of suit and for such other relief, general and special, to which she may be entitled in law or equity.”

On the petition, one of the judges of the district court of Jefferson county entered the following order: “The foregoing petition having been presented and considered, and it appearing that the plaintiff is entitled to the relief sought, the clerk of the District Court is directed to issue to C. J. Strack in his capacity of Tax Assessor and Collector of the City of Beaumont, a notice commanding the said C. J. Strack to appear in the 60th District Court at Beaumont, Texas on the 27th day of September at 10 o’clock, then and there to show cause why the restraining order prayed for should not be granted.” Notice issued to C. J. Strack in his capacity of tax assessor and collector of the City of Beaumont, served on September 11, 1940, commanding him to appear at the time and place designated in the order to “answer said Application, showing cause, if any you can, why same should not be granted.” No order was made directing that notice issue and be served on the City of Beaumont, and no notice was served oh the City of Beaumont. Neither Mr. Strack nor the City of Beaumont filed an answer to the order to show cause.

The following order was made on the order to show cause, as served on C. J. Strack: “On this the 27th day of September, 1940, came on to be heard the plaintiff’s application for a temporary injunction enjoining and restraining the City of Beaumont from suing for and collecting taxes from the plaintiff on the following described property located in the City of BeaumontAfter giving a description of the property in controversy, the order proceeded as follows:

“* * * and the court, after having heard the pleading and the evidence and the argument of counsel, is of the opinion that the plaintiff is entitled to an injunction' enjoining and restraining the City of Beaumont from suing and collecting taxes on said property for the year 1940 in excess of Twelve Thousand ($12,000.00) Dollars.
“It is therefore the order, judgment and decree of the court that the City of Beaumont and its Tax Assessor and Collector, C. J. Strack, be and are hereby enjoined and restrained from bringing suit against the plaintiff or otherwise attempting -to collect taxes for the year 1940 on the above described property located in the City of Beaumont, in excess of $12,000.00 valuation thereon conditioned that the said plaintiffs deliver to the Clerk of this court a bond in the sum of Four Hundred ($400.-00) Dollars conditioned as required by law with the sureties being approved by the clerk; and it is the further order of the court that the Clerk of this court issue said temporary Writ of Injunction as provided herein.”

Opinion.

The judge committed error in the following respects in granting the temporary writ of injunction:

(1) No necessity for the temporary writ was alleged, and the facts alleged denied the necessity. The taxes in issue do not become delinquent prior to February 1, 1941. That fact denies the right to the writ enjoining the City of Beaumont from filing suit at this time.

(2) Appellees plead only legal conclusions as a basis for their writ. As to the City of Beaumont, the temporary injunction Was ex parte and must have support in affirmative' facts as distinguished from mere legal conclusions.

(3) The order is subject to the construction — we doubt that it could be given any other construction — that, when the case is called for trial, the City of Beaumont cannot put in issue its right to claim taxes on a valuation in excess of $12,000.

Appellees secured by the temporary writ -all the relief they could recover on final judgment on a trial on the merits. By pleading controlling facts, and by. sustaining the allegations with proof, appel-lees may recover a final judgment, on well established legal principles, enjoining the City of Beaumont from assessing their property for taxes at a value in excess of $12,000, but they can have that relief only by final judgment.

(5) As grounds for reversal, appellant presents the point that appellees did not allege that the City of Beaumont is a municipal corporation, duly incorporated. This point also challenges the sufficiency of the petition to support a final judgment. We do not discuss this point because appellees can amend their petition and meet 'fully appellant’s exceptions.

The judgment of the lower court is reversed and the temporary injunction dissolved.


text:
    MOORE v. WUTKE.
    No. 3712.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 9, 1940.
    Rehearing Denied Nov. 13, 1940.
    Gilbert T. Adams, of Beaumont, for appellant. ■
    Orgain, Carroll & Bell, of Beaumont, Battaile & Burr, of Houston, and John G. Tucker, of Beaumont, for appellee.
   WALKER, Chief Justice.

Carl W. Moore is appellant; W. J. Wutke is appellee. The judgment herein was rendered and entered in the district court of Jefferson county on the 19th day of December, 1939. At the time judgment was rendered, appellant gave notice of appeal to this court; he filed no motion for new trial. On the 16th day of January, 1940, more than 20 days after the rendition of the judgment, appellant filed the following affidavit in lieu of a cost bond:

“No. 52197
“To the Honorable Judge of Said Court:
“Carl W. Moore, plaintiff in the above entitled and numbered cause, pending in the 60th District Court of Jefferson County, Texas, being first duly sworn, upon his oath deposes and says:
“ ‘That at a regular term of said court, to-wit: on the 19th day of December, A. D., 1939, the said W. J. Wutke, defendant in said cause, recovered a judgment against said Carl W. Moore and the said Southern Underwriters, in which judgment it was ordered, adjudged and decreed that the plaintiff, Carl W. Moore, and the Southern Underwriters take nothing as against W. J. Wutke, and that the said W. J. Wutke recover his cost in said cause, and that the said Carl W. Moore, plaintiff, and the Southern Underwriters pay all costs in said cause.
“ ‘Said cause above described was one in which Carl W. Moore was plaintiff and the Southern Underwriters was defendant but who was in fact the compensation carrier of the said 'Carl W. Moore and was made a defendant by the said Carl W. Moore in his suit against the third party, W. J. Wutke, for certain injuries sustained by the said Carl W. Moore in an automobile collision between the vehicle driven by Moore and the one operated by Wutke which was parked on the Houston Highway; and said trial court, after hearing the evidence,-instructed a verdict against the said Carl W. Moore and against the said Southern Underwriters, compensation carrier, who had paid the said Carl W. Moore compensation.
“ ‘And said judgment ordered that Carl W. Moore and the Southern Underwriters pay all cost of court. To which said judgment, the said Carl W. Moore and the Southern Underwriters then and there in open court excepted and gave notice of appeal to the court of Civil Appeals in and for the Ninth Supreme Judicial District of Texas at Beaumont; which said judgment was entered on December 19, 1939, and from which said judgment the plaintiff, Carl W. Moore, desires to perfect an appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas, sitting at Beaumont; but that the said Carl W. Moore is unable to pay the cost of appeal or to give security therefor, but that the said Carl W. Moore is able to pay some small amount per month towards the cost in said cause; that the said Carl W. Moore is a married man and has six children and a wife and himself and his family to support and does not make but a small salary, and, therefore, cannot contribute but a small amount; but that he is willing to and will contribute two ($2.00) dollars per month towards the payment of the cost in this cause, but that he is not able to contribute and pay the clerk any greater amount per month.
“ ‘Said Carl W. Moore states on oath that he has no property or separate income other than his weekly salary of Twenty Dollars; that he has no means, no property, no assets, no values of bonds or stocks or anything else by which he can put up a security; and that he is unable to procure other people to go his bond or to make bond for him or to give him any security; and he prays this Honorable court to allow him to prosecute his appeal on his affidavit of inability to pay cost, and that all the facilities of this court be furnished him such as statement of facts, Transcript, and such other matters as may be necessary for the perfection of his appeal.’ ”

The term of court at which this case was tried could, and in fact did, continue more than eight weeks. Trials and trial procedure in Jefferson county are regulated and governed by Article 2092, Vernon’s Ann.Civ.St. which provides that the appeal bond shall be filed within 30 days after the order appealed from is rendered; this article is silent with respect to the time within which the affidavit in lieu of a cost bond is to be filed. So, under the provisions of Article 2093, also relating to and governing trials and trial procedure in Jefferson county, the affidavit must be filed within the 20 days allowed by Article 2253. Construing Article 2092 on this point, in Snider v. Dallas Ry. & Terminal Co., Tex.Civ.App., 25 S.W.2d 878, writ refused, the court said:

“The Forty-Fourth district court is governed by the rules of practice and procedure prescribed by article 2092, Rev.St.1925. Subdivision 31 of said article requires that in appeals the appeal bond shall be filed within thirty days after the motion for new trial is overruled. The act is silent with respect to the time within which the affidavit in forma pauperis is to be filed in appeals upon such affidavits. It therefore follows that article 2253, Rev.St., governs in appeals in forma pauperis.
“See article 2093, which provides: ‘All laws and rules of practice and procedure provided for other district courts shall continue in effect and operate and be observed in the civil district courts of the class covered by this law. In all trials and proceedings not provided for herein, the general rules of 'practice and procedure provided for in other district courts shall be the rules of practice and procedure in the civil district courts of the class included herein.’ Hunnicutt v. Lee (Tex.Civ.App.) 16 S.W.2d 968. See, also, Golden Rod Oil Co., No. 1 v. Golden West Oil Co. No. 1 (Tex.Com.App.) 293 S.W. 167, 168.
“In the case last cited the appeal was by writ of error, and it was held with reference to article 2092: ‘While this act does prescribe the time within which an appeal bond may be filed, it does not purport to change or in any way modify the method of perfecting appeal by writ of error.’
“Since article 2092 does not prescribe the time within which, an affidavit in forma pauperis may be filed, it follows that said article does not change or modify the method of perfecting an appeal, as provided by article 2253.
“The affidavit not having been filed within the twenty days limited by article 2253, it follows the appeal was not perfected as required by law,. and this court is without jurisdiction of the same. Therefore the appeal is dismissed.”

Gilmore v. Ladell, Tex.Civ.App., 34 S.W.2d 919 and Gardner v. Gardner Amusement Co., Tex.Civ.App., 119 S.W.2d 1064, follow the Snider case. It follows that the motion to dismiss the appeal must be sustained.

Appellant advances the following propositions in answer to appellee’s motion to dismiss: (1) “Furthermore, appellee’s motion is without merit because appellant did not file a so-called ‘pauper’s oath’ and, in truth, could not file one. The instrument filed specifically states that appellant cannot make bond but that appellant is able to and will deposit in the registry of the Court a stipulated amount per month to cover- the cost of appeal. ' This instrument is not a pauper’s oath and is exactly the opposite, because appellant could not in truth execute such an affidavit. The instrument filed in lieu of bond is entitled to be treated as more than an affidavit of pauperism and is the kind of instrument which must be filed by one who cannot make bond but who yet is able to defray the cost of appeal. The Supreme Court decision of Pendley v. Berry [95 Tex. 72], 65 S.W. 32, is directly in point and entitles this appellant to prosecute his appeal as herein attempted.”

It must be conceded that the affidavit filed by appellant falls within the rule announced in Pendley v. Berry, 95 Tex. 72, 65 S.W. 32, 33, cited by appellant. In that case our Supreme Court said: “The right of appeal is secured both by the general provisions of the statute (article 1383) and by the constitution, giving jurisdiction to the court of civil appeals, and these rules were prescribed by the legislature to afford ample and reasonable rales according to which the right may be exercised. Dillingham v. Putnam [109 Tex. 1] 14 S.W. 303. It is inconceivable that the legislature meant to provide for appeals by parties who could give bond, and for those who could neither give bond nor pay any part of the costs, and leave unprovided for those who, while not able to give security, were able to pay all or a part of the costs. Considering the purposes in view, and the nature of the right given by the constitution and other parts of the statute, the plain implication arising from articles 1387, 1400, and 1401 is that, in order to entitle the party to appeal upon an affidavit and nothing more, he must show that he can neither give bond nor pay any part of the costs, and that, since the bond is intended only as security for the costs, if he cannot give such bond, but can pay the costs, or a part of them, he may by his affidavit show the extent of his inability, and pay as much as he can.”

But this authority goes no further than to authorize an appeal by affidavit in forma pauperis, or by an affidavit, of the character filed by appellant herein, of his ability to pay only a part of the costs. But whatever may be said on this point, if the appeal is not by' bond then it necessarily follows that it is by affidavit, and Article 2092 is silent with respect to the time within which the affidavit must be filed. Article 2092 simply provides for the perfecting of the appeal by filing a bond, and under no construction can the affidavit filed herein be denominated a bond.

(2) “Furthermore, appellant submits that a straight out affidavit of pauperism is entitled to be executed and filed by an appellant within the time allowed for filing an appeal or writ of error bond.”

This contention is denied. Where the appeal is by bond or affidavit, and not by writ of error, the bond in Jefferson County must be filed within the time allowed by Article 2092, or, if by affidavit, the affidavit must be filed within the time provided' by Article 2253.

(3) “There is no warrant in law for requiring one who is injured and impaired in body and suffering from a fractured spine to file an affidavit of inability to secure costs within twenty days of judgment, and at the same time allowing a financially able corporate entity thirty days within which to post bond. If there is to be different periods of time, then the longer period should be allowed the sick and infirm and poor; at least he, too should be allowed the thirty-day period within which to attempt to make bond before putting him to the extremity of swearing to his poverty and suffering the odium which accompanies an affidavit of pauperism.”

This proposition is a construction by appellant of what the law should be; under the authorities cited above, the Supreme Court has approved a construction denying appellant’s argument under this proposition.

(4) “The provision of Article 2092, which allows one thirty days within which to file bond, contemplates that appellant shall have the thirty days within which to make bond; and one would be presump-tious to make a pauper’s oath ten days pri- or to the expiration of the time allowed him by law to make the bond. History is replete with the records of men who have gone from pauperism to riches in ten days. Every effort should be made and every opportunity, of both time and fortune should be indulged before one, by affidavit of pauperism, swears that he cannot make bond within thirty days from judgment.

What we have said under appellant’s third contention also answers this contention.

(5) “However, if it should be held that Article 2253 does govern appeals on pauper’s oath from courts governed by Article 2092, then appellant respectfully submits that his affidavit under the plain wording of Article 2253 was filed ‘within twenty days after expiration of the term’; because under Article 2092, Subdivision 30, the term of the Sixtieth District Court came to ap end thirty days after judgment was rendered. See Independent Life Ins. Co. of America v. Work [124 Tex. 281], 77 S.W.2d [1036], 1037, 1038-1040, where the court ruled as follows:

“‘The judgment does not become final •until after the expiration of thirty days from the date of the judgment, or after a motion for new trial was overruled, at which time the term of court is at an end as far as the immediate cause is concerned.’ ”

This contention is denied, under the following provisions of Article 2253: “If the term of court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county.”

Appellant cites Hanks v. Texas Employers’ Insurance Ass’n, 133 Tex. 187, 128 S.W.2d 1, whereby the appellant was given 90 days within which to file his transcript in the Court of Civil Appeals. The Hanks case deals with the transcript and not the affidavit in lieu of the appeal bond; a discussion of the analogy between the transcript and the affidavit would be purely academic. Appellant also cites Shell Petroleum Corp. v. Howth, 133 S.W.2d 253, 260, where this court said: “True the City Practice Act makes no specific provision for appeals by filing affidavit of inability to pay costs: But it is the clear intent of our statutes that, any litigant desiring to appeal his case, and being unable to pay the costs, shall have the right to appeal his case by filing the required affidavit. The affidavit is in every respect in lieu of an appeal bond, and is subject to the same rules with respect to the time of filing.”

The facts of the Howth case distinguish it from the facts of this case; in the Howth case the affiants were nonresidents of Jefferson county; in the case at bar the affiant is a resident of Jefferson county.

It follows that the appeal must be dismissed, and it is accordingly so ordéred.

Appeal dismissed.

COMBS, J., dissents.


author: BLAIR, Justice.

text:
    BERDOLL v. BERDOLL.
    No. 8971.
    Court of Civil Appeals of Texas. Austin.
    Nov. 6, 1940.
    Rehearing Denied Nov. 27, 1940.

      Yelderman & Yelderman, of Austin, for plaintiff in error.
    Alfred Petsch, of Fredericksburg, and Hart & Brown, of Austin, for defendant in error.
   BLAIR, Justice.

The parties will be designated appellant and appellee.

Appellee, Annie R. Berdoll, sued appellant, A. J. Berdoll, for a divorce and to adjudicate the respective property rights of the parties. Appellee alleged that she owned as her separate property a certain described residence in Austin, and also 117.7 acres of land described, which property she inherited from her father after her marriage to appellant. He answered that these properties were conveyed to himself and appellee jointly, upon an agreement between them that the conveyance should be so made as compensation to him for outlays, expenses, and losses incurred by him out of his separate means in improving other separate property of appellee. She replied that no such agreement was ever made; that she did not authorize the conveyance to her and her husband; that she did not know that the conveyance had been so made until December 3, 1938, which was after this suit was instituted; and prayed that title and possession of the properties be awarded to her as her separate property. The jury found that no such agreement as alleged by appellant was made; and judgment was accordingly rendered awarding the properties to appel-lee as her separate properties.

For the first time appellant contends on this appeal that the right of appel-lee to have the conveyance to him set aside and cancelled was barred by the four-year statute of limitation (Article 5529). Not having plead limitation against the cause of action of appellee pertaining to the two pieces of property, appellant waived limitation as a defense, and cannot now be heard to urge same. The law is too well settled to admit of any discussion that “limitation is not available unless it is specifically set forth as a defense, it being firmly settled that the defense is waived if it is not interposed by a demurrer or plea.” 28 Tex.Jur. 286-288, and cases there cited.

Shortly before appellant and appellee were married he obtained two life insurance policies, which provided that payment of twenty annual premiums would mature them; and each provided for a cash surrender value. Appellant paid the first premiums due on these policies, and after his marriage appellee was named beneficiary, and after his marriage eighteen more annual premiums were paid, fourteen óf which were paid out of the community funds of appellant and appellee; and at the time of the trial these policies had a total cash surrender value of $2,754. Appellee made the insurance company a party to this suit, alleging that under the facts stated she was entitled to receive one-half of fourteen-nineteenths of the cash surrender value of these policies, being $1,013.40, upon the theory that since one-half of fourteen-nineteenths of the annual premiums was paid out of her one-half interest in the community funds, equity and justice required that she should receive at that time one-half of the fourteen-nineteenths of the cash surrender value of the insurance policies. Accordingly, the trial court, after reciting the facts, decreed as follows:

“* * * that plaintiff Annie R. Berdoll owns, as her part of the present cash surrender value of said two policies, fourteen-nineteenths of one-half thereof, or the sum of $1,013.40 of said cash surrender value; that she is entitled to have one of said policies surrendered at this time and to receive, as her separate property, $1,013.40 of the amount paid by said insurance company upon the surrender of such policy; and the court now orders, adjudges, and decrees that said Policy No. 4297-J be_ surrendered by plaintiff and defendant to said Great Southern Life Insurance Company, and that said insurance company pay to plaintiff Annie R. Berdoll the sum of $1,013.40 and to defendant A. J. Berdoll the balance of the cash surrender value of said policy, and that such surrender of said policy to said insurance company and the payment by said insurance company of said sumof’$l,377.00 as the cash surrender value thereof shall cancel and terminate said policy, and that thereafter the same shall not be of any further force and effect, and said Great Southern Life Insurance Company shall not be liable thereon in any further sum in any event; and the court does hereby adjudge and decree to said Annie R. Berdoll, as her separate property, the sum of $1,013.40 of the cash surrender value of said two policies, and adjudges that she may demand and receive same and may execute and deliver all necessary and proper receipts and acquittances therefor, and that she may sell, transfer and assign the same, and that process appropriate to carry into effect this provision of this judgment shall issue herein upon demand of said plaintiff Annie R. Berdoll.
“The court further adjudges and decrees that defendant, A. J. Berdoll, may purchase, and become the owner of, the said interest of $1,013.40 in the cash surrender value of said insurance policies from said plaintiff Annie R. Berdoll, provided he pays said sum in cash to said plaintiff Annie R. Berdoll on or before the 15th day of May, 1939, and, that in event said defendant A. J, Berdoll does pay said sum of $1,013.40 to plaintiff Annie R. Berdoll on or before said 15th day of May, 1939, that such payment shall be in full and complete satisfaction of the interest in the cash surrender value of said two policies of insurance which is herein adjudged and given to said plaintiff Annie R. Berdoll; and that upon such payment being made to plaintiff Annie R. Berdoll, she shall execute proper receipt therefor and transfer, assign, and release all of her interest of every kind in and to each of said two policies of insurance.”

The sole objection of appellant to this judgment is that “it was error * * * to impress a lien on behalf of the divorced spouse for any portions of the cash surrender value of the policies of insurance.” He contends that this question has been conclusively decided in his favor by the case of Whiteselle v. Northwestern Mutual Life Ins. Co., Tex.Com.App., 221 S.W. 575. We do not regard this case as being in point, because the issue there decided was between the insurance company and the wife after the death of the divorced husband. The divorced wife contended that she was a one-half owner of the policy purchased with community funds by her husband on his life and payable to her as beneficiary. After the divorce the ex-husband changed the beneficiary and obtained a loan on the loan value of the policy, and after the death of the ex-husband the wife sued the insurance company for conversion of one-half the value of the policy, and the court denied her the right to interfere with the loan contract made by the insured with the company holding that she had no interest in the policy after her divorce; and that no issue had been made as to premiums paid with community funds between the husband and wife at the time the divorce was granted and their property rights adjudicated. Nor did the case hold that a wife upon obtaining a divorce did not have an interest in the cash surrender value of a life insurance policy purchased by the husband during their marriage with community funds. Such a right in the wife has been recognized by the courts in several cases.

In the early case of Hatch v. Hatch, 35 Tex.Civ.App. 373, 80 S.W. 411, 413, where a policy of insurance had been assigned to the divorced wife during the marriage, and where after divorce she continued to pay the premiums, the court held that because of public policy she had no insurable interest and was not 'entitled to hold the policy, “except to the extent of premiums paid by her,” and allowed her' a, lien as accruing by virtue of her having paid the premiums on the policy.

In Shoemaker v. American Nat. Ins. Co., Tex.Com.App., 48 S.W.2d 612, it was held that the cash surrender value of a life insurance policy on the ex-husband’s life constituted a community chose in action or debt against the insurer which the insured may assign, and that a property settlement contract made in contemplation of divorce whereby the wife was given or assigned the cash surrender value of the policy was valid, and that although the wife by divorce lost her insurable interest in the policy, her executor could under the property settlement contract and assignment recover the cash surrender value of the policy against the insurance company.

In Kirberg v. Worrell, Tex.Com.App., 44 S.W.2d 940, the trial court and the Court of Civil Appeals, Kirberg v. Missouri State Life Ins. Co., 30 S.W.2d 663, held that a divorced wife had no insurable interest after divorce, and could not recover one-half of the cash surrender value of a policy on the ex-husband’s life paid for with community funds during marriage; but the Commission of Appeals by an opinion expressly approved by the Supreme Court held that the divorced wife could recover against the ex-husband one-half of the premiums on one policy and one-half of the cash surrender value of another policy paid for with community funds, and reversed and remanded the cause for trial of the issue, the court holding that a wide discretion was vested in the trial court by statute (Art. 4638) as respects the partition of community properties between divorced parties.

Whether the trial court’s judgment awarded a lien upon the cash surrender value of the insurance policy, or merely decreed that as between the divorced parties the insurance company should now pay the cash surrender. value of the policy to the divorced parties in accordance with their respective interests therein and in accordance with the terms of the policy to pay a cash surrender value, is not material. In either event the court had the wide statutory discretion or power to do justice between the divorced parties and to partition or divide this community chose of action or debt of the insurance company, which had been paid for in part with community funds during the marriage. Manifestly, if the law can on the ground of public policy destroy the insurable interest of the divorced wife in the insurance policy paid for with community funds, it can likewise under the rule- of justice and equity require the husband to surrender the policy and adjust or divide its cash surrender value with the divorced wife. The wife as beneficiary had an interest in the insurance policy and its surrender value during marriage, and under its terms the husband could not name another beneficiary without her consent. But the divorce destroyed the wife’s insurable interest in the policy, and after the divorce and the death of the husband the insurance must be paid to his estate or another beneficiary named by him; and unless the court had the power to require the husband to pay the divorced wife her interest in the cash surrender value, or to require the insurance company to pay the surrender value of the policy, the wife might lose her interest in this community chose in action or debt. No complaint is made that the payment of the wife’s interest in this community chose in action or debt would work a hardship upon the divorced husband, nor that same could have been more equitably paid out of other properties of the parties. If the insurance policy was more valuable to the husband than the wife’s interest in the cash surrender value of the policy, he was fully protected by the judgment, which gav.e him a period of grace in which to pay the divorced wife for her interest, and thereby continue the insurance in force; or he was given the right to accept his present interest in the cash surrender value of the policy. Likewise, the judgment protected appellant on one of the policies by requiring that only one of them be surrendered, it being sufficient to pay the cash surrender value due appellee on both policies. Thus the judgment protects appellant, and does not give appellee any interest in the shortening of the life of appellant, but merely awards to each divorced spouse the present earned money value of the two insurance policies, which became a community chose in action or debt because paid for or contributed to by the use of community funds.

The Texas decisions do not leave the question presented entirely clear, but none of them holds contrary to our above views as applied to the particular facts of the instant case. A recent review of the decisions bearing on the question was made by Mr. W. C. Huie in No. 2 of Vol. XVII of the Texas Law Review, and upon such review he suggests that the rule should be as follows: “If the husband, for example, has secured during the marriage a policy on his own life in favor of his estate, and has paid the premiums out of the community funds, under established principles, the right to receive the proceeds which will become payable at his death is a community chose in action. After a divorce of the parties, were it not for the rule of public policy, the divorced wife could wait until the death of the insured, and then receive from the insurer her one-half of the proceeds. To permit her to retain this right, however, would make the early death of the insured an advantage to her. Texas public policy demands, therefore, that she be deprived of the right to await the death of the insured. But it does not follow that she must be deprived of this right without any compensation. Clearly, she may be compensated for the loss of her interest in the community chose in action without violating the rule of public policy, so long as she is given no motive for murdering the insured.”

We think the suggested rule should be applied to the instant case.

The judgment of the trial court is affirmed.

Affirmed.


text:
    ECK et al. v. ECK.
    No. 8918.
    Court of Civil Appeals of Texas. Austin.
    Oct. 30, 1940.
    Rehearing Denied Nov. 27, 1940.
    F. L. Kuykendall and Coleman Gay, both of Austin,-for appellants.
    Homer C. DeWolfe, of Austin, for ap-pellee.
   BLAIR, Justice.

Appellants, Leonard Eck and his sister Margaret Eck Webb, joined pro forma by her husband, Lee Webb, sued appellee, Mrs. Nora Eck, to recover an interest in certain real estate and personal property, and to partition same. A trial to the court without a jury resulted in judgment that appellants take nothing, and removing cloud from the title of appellee to the property described; hence this appeal.

Appellants predicate their claim of interest in the property involved upon their adoption by Henry S. Eck, an uncle, as his legal heirs, on October 8, 1914. Appellants are the children of Alvin A. Eck and wife, Agnes Eck, who were in necessitous circumstances and were contemplating a divorce; and on October 8, 1914, executed an agreement with Henry S. Eck, brother of Alvin A. Eck, to adopt their children; they surrendering the custody and control of the children to Henry S. Eck. Two instruments were executed contemporaneously; one by Henry S. Eck adopting appellants as his legal heirs; and the other executed by Alvin A. and Agnes Eck transferring their parental custody and control of the children to Henry S. Eck. Both instruments complied with the Texas adoption statutes then in force .as to the matters to which they related, were duly acknowledged and recorded at the time. On March 31, 1915, Alvin A. Eck and Henry S. Eck executed and acknowledged another agreement, referring to the adoption instruments, dated October 8, 1914, and to certain conduct of Agnes Eck in taking possession of Margaret Eck, in violation of the written agreement transferring her custody and control to Henry S. Eck; and released Henry S. Eck from further responsibility and obligation created by the adoption agreements, in so far as they related to Margaret Eck, now Margaret Eck Webb; and annulled the adoption agreements as to Margaret Eck, which annulment instrument was duly recorded .at the time.

On August 14, 1915, Agnes Eck filed suit for divorce against Alvin A. Eck; which was granted February 15, 1916, and she was awarded the custody of appellants. On September 21, 1916, Alvin A. Eck and Henry S. Eck entered into still another written agreement, which recited that Alvin A. Eck wished to again resume the control and custody of Leonard Eck, and provided that Henry S. Eck was thereby released from all responsibility created by the adoption agreements entered into on October 8, 1914, and that the same were annulled in all respects. This instrument was not recorded until August 31, 1938. After the execution of this instrument, appellant Leonard Eck went with his father to Dallas, where he stayed for several months, but within a year returned to the home of Henry S. Eck, and continued to live with him until the death of Henry S. Eck, in 1922, performing the ordinary duties of a child and receiving such clothing and support from Henry S. Eck as an ordinary dhild would receive.

At the time the adoption instruments were executed, Henry S. Eck and his wife, appellee Nora Eck, had no children; but on February 13, 1917, a daughter, Aleñe Grace Eck, was born to them. Henry S. Eck died intestate on November 9, 1922, leaving a small community estate, and no administration was ever had on his estate. All of this property was used by the widow to support herself and minor daughter, except a vacant lot valued at $500.

On November 3, 1925, Leonard Eck, father of Henry S. and Alvin A., and the grandfather of appellants and Aleñe Grace Eck, died intestate, leaving a substantial estate. It was partitioned by suit May 11, 1926, the final judgment awarding Aleñe Grace Eck out of her grandfather’s’estate the title to the real and personal property involved ill this suit, except some of the real estate has been sold, but as to the nature and extent of the property here involved there is no dispute; and no accounting is here sought. Appellants knew of this suit, but were not parties to it.

Aleñe Grace Eck, who was a minor, through her mother took possession of the property awarded her by the partition decree, and continued in possession of all of it until the death of Aleñe Grace Eck, on March 4, 1935. She was a minor at the time of her death and had never married, and died intestate. After her death appellee took possession of all the property and has claimed and used it as her own since that time. No administration was had on the estate of Aleñe Grace Eck, and none was necessary.

Under the facts relating to the adoption, which were agreed to by the parties, appellants contend that Henry S. Eck having legally adopted them by the deed or instrument of adoption dated October 8, 1914, and having recorded same, he could not thereafter revoke or annul it except by a judicial proceeding brought for that purpose and showing equitable grounds. That as such adopted heirs of Henry S. Eck they were entitled at his death to inherit a portion of his community estate; and that Aleñe Grace Eck, the daughter of Henry S. Eck, having died March 4, 1935, intestate and without issue and never having married, they, as the adopted heirs of Henry S. Eck, deceased, were entitled to inherit one-half of her property under Sec. 9 of Chap. 177, Acts Reg. Ses. 42nd Leg., 1931, Vernon’s Ann. Civ. St. art 46a, § 9, which provides: “ * * * provided, further, that if such adopting parent or parents shall have other children, both natural children and adopted children, then, in such event, the children by birth and adoption shall respectively inherit from and through each other as if all such children had been born in lawful wedlock of the same parents; * *

Appellee’s contentions, which were apparently sustained by the trial court’s general judgment that appellants take nothing by their suit, are as follows:

1. That there was never any legal adoption of appellants by Henry S. Eck because of failure of consideration and purpose for the execution of the adoption instruments; and that if the adoption ever became effective, such relationship was terminated by the conduct of Agnes Eck, the mother of appellants, and by the execution of the release and annulment agreements by Alvin A. Eck, the father of appellants, and Henry S. Eck.

2. That if the adoption became effective, appellants would be entitled to inherit only a portion of adopter’s -separate property, and were not entitled to inherit any interest in the community property of Henry S. Eck and his wife, who was not a party to the adoption agreements.

3. That appellee was entitled under the provisions of Art. 3476 et seq., R.S.1925, Vernon’s Ann.Civ.St. art. 3476 et seq., to have the community property sold and set aside as an allowance for the support of herself and her minor daughter, Aleñe Grace Eck.

4. That if appellants as such legal heirs had any interest in the community property of Henry S. Eck and appellee, the same was barred by the two, four and ten years statutes of limitation prior to the filing of this suit by them.

5. That appellants were not entitled to inherit through and from Aleñe Grace Eck, the minor daughter of Henry S. Eck, deceased, under the provisions of Sec. 9 of Chap. 177, Acts of the Regular Session of the 42nd Legislature, because the statute is not retroactive; and if it granted such right, then it is retroactive and in violation of Secs. 16, 17 and 19 of Art. 1 of the Texas Constitution, Vernon’s Ann. St.

6.That since no notice of the provisions of Sec. 9 of Chap. 177 appeared in the caption or title to said Act, said provisions contravene Sec. 35 of Art. 3 of the Constitution and are void.

We are of the view that the trial court erred in holding that there was never any legal adoption of appellants, or, if so, same was terminated by the conduct and release of the parties. We hold that the status of a legal heir under the adoption statutes as they existed in 1914 was created by the adopter executing and filing for record a deed or instrument declaring such purpose, and that when such relationship was so established, it could- not be annulled, especially in the case of a minor, except by judicial proceeding brought for that purpose and showing equitable grounds. We adopt as our holding the view and reasons therefor the statement of the writer of the text in 1 Tex.Jur. 742, § 33, as follows:

“The Texas statute of adoption is unique. Most of the states make the adoption a judicial or quasi-judicial function. In Texas it is in the nature of a deed which needs no judicial sanction. Where the adoption is by judicial order, decree or sanction, obviously an attack upon its finality or validity -is governed by the principles applicable to judgments generally. But where as with us the adopter’s deed duly filed is effective, the analogy of a deed should govern. One can attack his deed of adoption upon any of the grounds which would authorize an attack upon his general deed, such as fraud, duress, mutual mistake and the like equitable grounds. Of course, where the adopted heir is a minor these grounds might not exist or exist only in a limited way, but this does not affect the principle. The statute has given no method of review or revocation. None, therefore exists aside from the general equity powers of the courts. The instrument like a deed, becoming effective upon execution and filing, the right conferred becomes immediately vested in the beneficiary and no right of revocation remains with the adopter. He can no more destroy the legal relation of heirship, thus instituted, than he can destroy the statutory relation of heirship by blood. The decisions from other jurisdictions where adoption is a court proceeding are therefore of little or no value in Texas.”

All parties hereto admit that no Texas case decides this point, and since the adoption statute in force at the time the adoption instruments in question were executed has been supplanted by a statute which makes adoption a judicial function, we think a lengthy discussion'of the question unnecessary, and particularly so under our further view that the trial court’s judgment must be affirmed on other grounds.

If the trial court sustained, which it apparently did by the general judgment that appellants take nothing, that a living adopted heir of one spouse could not inherit any interest in the community estate of the deceased adoptive parent, such holding seems to be incorrect. The contrary was held in Smith v. Carter, Tex.Civ.App., 45 S.W.2d 398, error dismissed.

Nor is it material under the final view that we take of the case whether appel-lee was entitled to use or have set aside to her all of the community estate of herself and Henry S. Eck for support of herself and minor daughter without an order of the probate court so directing; nor whether the claim of appellants, arising at the time of the death of Henry S. Eck in 1922, in his small community estate, was barred by the two, four and ten years’ limitation statutes (Arts. 5526, 5529, 5510), although we are of the view that the facts sustain the trial court’s judgment on the limitation pleas. (Contentions “3” and “4”.) It may be here observed, however, that appellants based their claim of interest solely upon their asserted right to inherit through and from their adopted sister, Aleñe Grace Eck, under the above quoted provisions of Sec. 9 of Chap. 177, Acts 1931; and we are clear in the view that the trial court correctly sustained appellee’s contentions “5” and “6” with respect to such claim of interest, which conclusion is determinative of the case.

' It is clear that since Sec. 9 was enacted more than five years after the death of Aleñe Grace Eck, and 'for the same period of time after her title had vested in appellee, her mother, the statutes could not have retroactive effect to divest appel-lee of title. If the statutes did so provide, it would contravene the fundamental law of this state, inhibiting -refroactive legislation. It is true that a child adopted under the provisions of a statute giving it no right of inheritance through or from the natural child of the 'adoptive parent is entitled to the benefit of a státute. enacted subsequently to the adoption, but prior to the death of the natural child, conferring such right, although presumptive heirs are thereby deprived of their prospective inheritance. But manifestly such a statute cannot operate to divest an estate already vested. This is true although the subsequent statute changing the right of inheritance of the adopted child is retrospective in its scope and purpose. Stated another way, the right of an adopted child to inherit through relatives of the adoptive parents under a statute enacted after the death of the adoptive parent, but prior to the death of the person from whom inheritance is claimed, is determined by the law in force at the time of the death of the person from whom inheritance is claimed. And a statute passed after the death of the person from whom inheritance is claimed cannot affect previously vested rights, although it was intended to be retrospective. No Texas case has passed on this question, but all decisions from other jurisdictions which we have found sustain the rule stated. Ballard v. Ward, 89 Pa. 358; Brooks B. & T. Co. v. Rorabacker, 118 Conn. 202, 171 A. 655; Karen Sorenson v. Rasmussen, 114 Minn. 324, 131 N.W. 325, 35 L.R.A.,N.S., 216; 2 C.J.S., Adoption of Children, § 63, p. 454; 1 Am.Jur. 659. This rule clearly applies to the facts of the instant case where both the adoptive parent and the person from whom inheritance was claimed died prior to the enactment of the statute in question, and after title had vested in appellee to the property involved.

We are also of the view that the provisions of Sec. 9 of Chap. 177, Acts 1931, are void because no notice of said provisions was contained in the caption to the Act; and therefore in contravention of Sec. 35 of Art. 3 of the Texas Constitution, which provides: “No bill * * * shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.”

The Act of 1931 repealed all adoption laws then in effect and substituted itself as a complete method of adoption entirely different from the repealed law. Its caption read: “An Act providing for the adoption of minors,, establishing legal relations between the children and adopted parents and repealing Title 3 of the Revised Civil Statutes of the State of Texas, Revision of 1925; and declaring an emergency.”

The main purpose of the Act was to provide a new and complete method of adoption by court proceeding, and as stated in the caption “establishing legal relations between the children and adopted parents.” No language is contained in the caption which would in any way indicate that the legislature intended to establish any right or relationship between the adopted child and the children of natural birth. The provisions of Sec. 9 were not contained in the body of the original Act or bill, but were incorporated as an amendment from the floor of the Senate. Under all prior adoption statutes, the adopted child could not inherit from the collateral or lineal kindred of the adoptive parent. Harle v. Harle, 109 Tex. 214, 204 S.W. 317, 15 A.L.R. 1261; State v. Yturria, 109 Tex. 220, 204 S.W. 315, L.R.A.1918F, 1079; Fletcher v. Persall, Tex.Civ.App., 75 S.W.2d 170, writ refused. The caption was not changed to meet the new matter contained in the amendment, and by reading the caption no one could possibly be informed that a new status or relationship was being created by the Act as between the adopted and natural children of the adoptive parent.

The purpose of Sec. 35 of Art. 3 of the Texas Constitution is to require that the bill shall advise both the legislature and the people of the nature of each particular bill; such purpose being stated in Consolidated Underwriters v. Kirby Lbr. Co., Tex.Com.App., 267 S.W. 703, 705, as follows: “* * * To advise the Legislature and the people of the nature of each particular bill, so as to prevent the insertion of obnoxious clauses which otherwise might be ingrafted on it and become the law, and to obviate legislation through the combination, upon a composite bill, of the votes of the proponents of different measures included in it, some of which would not pass upon their merits if separately considered.”

We think that by clear analogy on fact and principle our conclusion that the caption in question is defective is sustained by the decision in Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799; and Rodgers v. Tobias, Tex.Civ.App., 225 S.W. 804, writ refused.

The judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

'Attention is called to the fact that Aleñe Grace Eck did not die prior to the Act of 1931, Vernon’s Ann.Civ.St. Art. 46a, as stated in our original opinion, and in consequence the first ground for affirmance of the trial court’s judgment'cannot be sustained. The matter is immaterial, however, under-our holding that the portion of the 1931 Act authorizing adopted children to inherit from the natural children of the adoptive parent is void, because no notice of that provision was contained in the caption of the 1931 Act.

The motion for rehearing is' overruled.

Overruled.


text:
    KINZBACH TOOL CO., Inc., et al. v. CORBETT-WALLACE CORPORATION et al.
    No. 11028.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1940.
    Rehearing Denied Dec. 5, 1940.

      Hardway, Woodruff & Austin, of Houston, for appellant Kinzbach Tool Co.
    Sewell, Taylor, Morris & Connally, of Houston, for appellant G. E. Turner.
    T. J. Stovall and W. F. Tarver, both of Houston, for appellee Corbett-Wallace Corporation.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appellee, 'Corbett-Wallace Corporation, to recover from appellant, Kinzbach Tool Company, Inc., the amount alleged to be due on a contract involving the’ sales rights to certain oil field equipment, with attorney’s fees. Appellant, Kinzbach Tool Company, Inc., sought to-defeat appellee’s action to recover attorney’s fees under said contract and by cross-action sought to establish a constructive trust on the balance of a fund due appellant, G. E. Turner, by appel-lee, and to recover the sum of $500 paid on said fund.

On May 11, 1937, appellee, Corbett-Wal-lace Corporation, entered into a written contract to sell to appellant, Kinzbach Tool Company, Inc., its rights to manufacture and sell a piece of patented oil-field equipment known as a “whipstock” for the sum of $25,000, payable $2,500 in cash, $2,500 on June 1, 1938, and $5,000 on June 1 of each year thereafter until the full purchase price was paid.

Default was made by i&nzbach Tool Company, Inc., in the payment of the first installment of $2,500 due on June 1, 1938, under said contract. On its failure to make payment after demand therefor had been made by appellee, suit was filed against said appellant for said installment, with attorney’s fees due thereon. On the date said suit was filed by appellee, appellant, Kinz-bach Tool Company, Inc., filed suit against appellee, Corbett-Wallace Corporation, and against appellant, G. E. Turner, its former employee, alleging numerous acts of fraud on the part of each. Later appellee, Cor-bett-Wallace Corporation, filed an amended petition, including a cross-action, in which it sought a cancellation of its contract to pay appellant Turner the sum of $5,000.

Later appellee amended its petition in said suit and included therein the acceleration of the entire amount alleged to be due under said contract, with attorney’s fees.

In a trial before the court judgment was rendered in favor of appellee, Corbett-Wal-lace Corporation, against Kinzbach Tool Company, Inc., for the entire unpaid balance due under the terms of said contract of $22,500, with 10% attorney’s fees of $2,250, a total of $24,750, with costs of court, and that appellant, Kinzbach Tool Company, Inc., recover nothing from appellee, Cor-bett-Wallace Corporation, on its cross-action; and that appellee take nothing on its cross-action against G. E. Turner. The court decreed that a contract by appellee to pay appellant Turner the sum of $5,000, when and if the purchase price for said equipment was fully paid to appellee by appellant, Kinzbach Tool Company, Inc., be cancelled and that appellee be relieved of further liability thereon. The court awarded Kinzbach Tool Company, Inc., judgment against appellant G. E. Turner for $500, the amount that had been paid to Turner by appellee on said contract, and awarded appellant, Kinzbach Tool Company, Inc., a credit on the judgment in favor of appellee in the sum of $4,500, reciting said sum to be the amount appellee was relieved from paying appellant Turner “so that said sum is in effect decreed to said Kinzbach Tool Company, Inc., as a credit on said judgment so as to leave as the present unpaid amount of judgment for plaintiff, the Corbett-Wallace Corporation, the sum of $20,250, together with interest thereon at 6%, and all costs herein expended.”

The court further ordered that the sums of $2,500 and $5,000, deposited by appellant, Kinzbach Tool Company, with the Clerk of the Court, be paid direct to appellee as credits upon said judgment of $20,250, leaving a then balance of $12,750 unpaid thereon.

Findings of fact and conclusions of law were filed by the court. They were excepted to by Kinzbach Tool Company, Inc.

The court found in effect that Frank Kinzbach was thoroughly familiar with the value of said “whipstock” and the profits that could be made from it; that E. B. Corbett, an officer of Corbett-Wallace Corporation, had requested G. E. Turner, an employee of Kinzbach Tool Company in the capacity of a salesman, to see Frank Kinz-bach and to find from him if he would be interested in buying the contract and sales rights to said equipment. Turner was advised that Corbett-Wallace Corporation would not sell said contract for less than $20,000 net, and was instructed not to quote any selling price therefor. He was requested to find what Kinzbach was willing to offer for said contract. Corbett informed Turner that he would “take care of him” on the deal.

The court found that appellee had never at any time requested or authorized Turner to make a contract or deal for said contract of sales rights. He found that on a former occasion Turner had acted as an intermediary for the sale and exchange of stock between Kinzbach and Corbett, personally, and that he had been paid a small commission by Corbett for such services; that said payment was not known to Kinzbach at the time of the transaction, but that had he discovered it later he would not have objected to it. The court found that when approached by Turner, Kinzbach advised Turner that he was interested in purchasing the contract in question and instructed him to find out what Corbett-Wallace Corporation would sell it for, but not to quote them a price. Frank Kinzbach advised Turner that they would pay $25,000. for said contract, but Turner was never requested nor authorized to make a contract, or deal for said contract, or make a price, and that Turner had advised Corbett that Kinzbach would not quote a figure. Later Kinzbach instructed Turner to drop the matter; that he was negotiating himself with W. F. Tarver, an agent and attorney for Corbett-Wallace Corporation'. After much negotiating between Kinzbach and Tarver the contract in evidence was agreed upon and said contract was drawn by Tarver in collaboration with attorneys understood by Tarver to be representing Kinz-bach Tool Company. The court found that, at all times, Kinzbach knew that W. F. Tar-ver was not representing him and that he was representing Corbett-Wallace Corporation. The court found that Frank Kinz-bach and E. B. Corbett were and had been for some time unfriendly and that neither could deal personally with the other.

The court found that after the execution of said contract Frank Kinzbach learned that G. E. Turner had been promised a fee or commission by E. B, Corbett and that Turner was immediately discharged from Kinzbach Tool Company; that shortly thereafter Corbett-Wallace Corporation made a written agreement with Turner to pay him 20% commission on the purchase price of said contract, amounting to $5,000, when paid by appellee; that had Kinzbach known of said promise to pay said commission he would have refused to deal with Corbett-Wallace Corporation through Turner. He found that, during the negotiations for said sale and up to the time the contract was signed, neither Cor-bett nor Corbett-Wallace Corporation was informed by Turner of any confidential matters of Turner’s employer, or that Kinz-bach would pay $25,000 for the contract, and that neither Corbett nor any officer of the Corbett-Wallace Corporation conspired with Turner against his employer, nor was Corbett nor any of such officers guilty of any fraud'or deceit or overreaching in negotiating the sale of the contracts. He found that, in making said purchase, Kinzbach depended solely upon his own knowledge of the value of the “whipstock” and that he did not rely or depend upon anything said or done by W. F. Tarver or Corbett-Wallace Corporation or G. E. Turner; that neither party to the contract sought a rescission of the contract in said suit; that the price of $25,000 agreed to be paid by Kinzbach Tool Company, Inc., was a fair price; that said contract was reasonably worth' more than such sum at the time of the execution of said contract and was worth much more than said sum at the time of the trial of the case.

The court further found that the installment of $2,500 due June 1, 1938, was not paid when due; that plaintiff notified Kinz-bach Tool Company that suit would be filed, and that attorney’s fees would be demanded if it was not paid; that after such default said contract was placed in the hands of attorneys for collection and that they were entitled to collect attorneys’ fees on said default; that prior to the filing of said suit, Kinzbach Tool Company tendered Cor-bett-Wallace Corporation $1,500 as payment of the installment of $2,500 but that such tender was not sufficient; that between July 18, 1938, and December 6, 1938, Kinzbach Tool Company offered to pay Corbett-Wal-lace Corporation the installment due on June 1, 1938, of $2,500, with attorney’s fees and court costs, upon condition that the plaintiff would give a receipt reciting that such sum was paid under protest and that such payment would be without prejudice to its right in a suit filed by Kinzbach Tool Company against Corbett-Wallace Corporation and G. E. Turner; that such tender was insufficient and that appellee was under no duty to accept the tender with such conditions imposed thereon; that in February, 1939, Kinzbach Tool Company tendered into court the sum of $2,500 on the installment of said contract due on June l; 1938, and on June 30, 1939, it tendered into court the sum of $5,000 due on the installment which was due in June, 1939. It found that it would not be inequitable to require said Kinzbach Tool Company to pay such fees; that such attorney’s fees were just, reasonable and due, and that appellee was entitled to accelerate its payment on said contract and to recover the principal sum and attorney’s fees rendered in. said judgment. The court found, however, that G. E. Turner,' being an employee of the Kinzbach Tool Company, had no right to collect a commission from Corbett-Wallace Corporation, and that Kinzbach Tool Company was entitled to recover of him any sum paid him or which he would be entitled to collect from appellee.

Appellant, Kinzbach Tool Company, Inc., contends, that the findings of the trial court to the effect that neither Corbett nor Corbett-Wallace Corporation was informed by G. E. Turner of any confidential matters of his employer, or that they conspired with him against his employer, or that they were not guilty of fraud or deceit in the negotiations for the sale of said contract are without support in the record and that the trial court erred in denying Kinzbach Tool Company, Inc., a recovery of the sum of $5,000, since the uncontroverted proof showed that appellee became the constructive trustee for Kinzbach Tool Company, Inc., of said sum of $5,000 which appel-lee paid and agreed to pay G. E. Turner as commission on said contract.

This contention cannot be sustained. A careful consideration of the facts in the record leads to the conclusion that the findings of fact of the trial court are unusually comprehensive and definite and that they are, without exception, based on ample evidence.

Under the pleadings and record in this action appellant, Kinzbach Tool Company, Inc., in order to recover, must establish a constructive trust in its favor on the funds due appellant Turner under its contract with appellee, Corbett-Wallace Corporation.

It is the settled law in this state that the doctrine of constructive trust, relied upon by appellant, is only applicable in cases in which there is “some breach of duty or want of good faith and fair dealing on the part of the person acquiring the property, or of him from whom or under whom he has gotten it, of whom he has actual or constructive notice; of where the property has been acquired or possession of it taken on the assumption of a trust character, or under the belief by those with whom the transaction is had, or by reason of which it was acquired or possessed, that it was taken or acquired in trust; or where it has been gotten by some undue influence.” Hendrix v. Nunn, 46 Tex. 141; Coles v. Noble, 63 Tex. 432; Abilene State Bank v. Donnelly, Tex.Civ.App., 277 S.W. 447; Marosis v. Alamo Amusement Co., Tex.Civ.App., 60 S.W.2d 876; Costley v. Gracy, Tex.Civ.App., 52 S.W.2d 920; 35 A.L.R. 310; 80 A.L.R. 205.

In the recent case of Collins v. Griffith, Tex.Civ.App., 125 S.W.2d 419, 420, it is held that, “A ‘constructive trust’ is born of fraud and presupposes from its beginning adverse claim of right on part of trustee by implication.” Abilene State Bank v. Donnelly et al., Tex.Civ.App., 277 S.W. 447.

The court found, on ample evidence, that the officers of Kinzbach Tool Company were familiar with the value of said contract and the profits that could be made from it; that the price agreed upon was a fair price at the time of its purchase and at the time of the trial; that Turner did not violate any confidence of his employer and that his employer did not suffer any damage as a result thereof. Frank Kinzbach testified that Turner did not attempt to induce him to purchase said contract and that the trade for the purchase thereof was made between him and W. F. Tarver and that he knew that Tarver was representing appellee. The uncontro-verted evidence shows that Turner’s services in connection with said sale consisted only in advising his employer that E. B. Corbett had informed him that said contract was for sale-and that he would be glad to re-cieve an offer therefor, aind in advising appellee that his employer, Kinzbach Tool Company, did not desire to make an offer but would be glad to receive one.

In the case of Allen v. Roach, Tex.Com.App., 292 S.W. 195, the court in its opinion held that the general rule that an agent cannot act for both a buyer and a seller unless his so acting is at the time known to both parties and is agreeable to them, does not apply where the agent is clothed with no discretion but is only authorized to bring the parties together.

This exception to said general rule is recognized in the case of Adkins-Polk Co. v. John Barkley & Co., Ltd., Tex.Civ.App., 297 S.W. 757.

In the case of Lee v. W. D. Haden & Co., Tex.Civ.App., 48 S.W.2d 476; W. D. Haden & Co. v. Lee, Tex.Civ.App., 64 S.W.2d 1107, it is held that an agent must be the agent in fact before the strict rule of accountability applies. This rule is followed in 2 C.J. 694, § 353, in which it is said: “The general rule as to loyalty does not apply to cases where no relation of trust or confidence exists between the parties, as where an agent is bound merely as an instrument, more properly as a servant, to perform a service, or where the relation of principal and agent is not shown to exist.” See also 3 C.J.S., Agency, § 138.

In the case of Starling v. Hill, Tex.Civ.App., 121 S.W.2d 648, the receiver of a defunct corporation sued some of its directors and its general attorney, alleging a conspiracy to defraud the corporation and that said defendants had received and retained large sums of money from fraudulent dealings with the corporation. It was found that said attorney, during the operation of the corporation, had entered into a conspiracy with one of the defendants to defraud the corporation out of money invested in its capital stock, and that as a result of such conspiracy he had received the sum of $50,-000. There was, however, no finding that the corporation had suffered any damage as a result of his activities. The court held that the employer must show damage before he could recover from the agent.

Since the record shows that G. E. Turner was clothed with no authority to make, accept or reject any offer for or from either party for the purchase or sale of the contract in question, and since there is no proof of fraud or overreaching on the part of either Turner or appellee, and no proof of damage to Kinzbach Tool Company, and since the article purchased has not been tendered back to Corbett-Wallace Corporation, appellant’s contention that a constructive trust had been established on the funds due G. E. Turner under his contract with appellee cannot be sustained.

We cannot sustain appellant, Kinz-bach Tool Company’s, contention that the court erred in rendering judgment for appellee against it for attorney’s fees and for accelerating maturity of the deferred payments under said contract. The court found that on June 15, 1938, Kinzbach Tool Company tendered Corbett-Wallace Corporation, the sum of $1,500 for the $2,500 which was due under said contract; that on June 23, 1938, the sum of $2,500 was tendered upon condition that appellee sign a receipt in which it was recited that a portion of said payment was made under protest and that its payment would in no way prejudice said appellant’s right to recover it or any part of it in another action filed by it. It found that in November after the filing of said suit, a tender of $2,500 was made by said appellant, which was the amount of the installment due, but that no court costs or attorney’s fees were tendered at that time. This tender was placed by appellant in the registry of the court and in June, 1939, $5,000 representing installment due on that date, was tendered after suit had been pending for approximately a year. This tender was placed in the registry of the court. All of said tenders were refused by appellee.

It is the settled law in this state that a tender must include everthing to which the creditor is entitled and that a tender for anything less is ineffectual. Kansas City Life Ins. Co. v. Duvall, Tex.Civ.App., 129 S.W.2d 770.

In the case of Barreda v. Merchants’ National Bank, Tex.Civ.App., 206 S.W. 726, it was claimed by appellant that a debtor may tender an amount which, with the knowledge he has, he believes and has good reason to believe to be due and that such tender will operate to stop interest on the sum tendered even though it is not the amount actually due. The court in its opinion held, that it was not a question of what appellant believed to be due, but whether the amount tendered was the amount really due on the note, and that unless the proper amount was tendered, the party was in no position to complain when he was compelled to pay interest and attorney’s fees on the amount actually due.

In the case of Manhattan Life Ins. Co. v. Stubbs, Tex.Com.App., 234 S.W. 1099, it is held that the complaining party could not tender the amount it thought to be due on an insurance policy and demand a receipt stating that it was accepted in full payment.

In the case of Colby v. Reed, 99 U.S. 560, 25 L.Ed. 484-486, it is held that authority undoubtedly exists in the defendant to tender the debt, if it is of a definite amount, before action brought; but it is equally well settled that even if it be large enough to pay the whole debt, that it is utterly nugatory after action brought unless it includes a sum sufficient to pay the costs.

The general rule with reference to a tender is that to be effectual it must be unconditional, or, as sometimes expressed, it must be without conditions to which the creditor can have a valid objection, or which will be prejudicial to his rights. 26 R.C.L., 640.

In 40 Tex.Jur. 851, it is said: “ * * * a tender accompanied with conditions which the debtor has no right to impose is without effect. Thus it may not be conditioned upon the acceptance of a medium of payment which the obligation does not call for; nor may it be conditioned upon a demand that the creditor relinquish a legal right; nor any other ground which the debtor has no right to demand.” Citing Flake v. Nuse, 51 Tex. 98; Manhattan Life Co. v. Stubbs, Tex.Com.App., 234 S.W. 1099.

It follows from these conclusions that the judgment of the trial court should be reversed wherein it cancels and annuls the contract between The Corbett-Wallace Corporation and G. E. Turner, and that judgment in this respect should be here rendered decreeing said contract to be valid and in full force and effect; and that the judgment of the trial court should be reversed wherein it awards Kinzbach Tool Company, Inc., recovery, as a credit on the judgment against it in favor of the Corbett-Wallace Corporation in the sum of $4,500, and that in this respect judgment should be here rendered denying the said $4,500 credit, and that the judgment should be reversed wherein it awards Kinzbach Tool Company, Inc., the sum of $500 with interest and costs of suit against G. E. Turner, and that in this respect judgment be here rendered that Kinzbach Tool' Company, Inc., take nothing by its cross-action against said G. E. Turner ; and that the judgment of the trial court should in all other respects be affirmed. It is accordingly so ordered.

The motion of the appellant, Kinzbach Tool Company, Inc., to affirm on certificate as to appellant G. E. Turner has been considered and is refused.

Reversed and rendered in part and in part affirmed.


author: O’QUINN, Justice.

text:
    VINCE v. DAHL et al.
    No. 3825—A.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 12, 1940.
    Rehearing Denied Nov. 20, 1940.
    D. A. Frank, of Dallas, and Crawford & Crawford, of Conroe, for appellant.
    Frank G. Dyer, Edward S. Boyles, Vinson, Elkins, Weems & Francis, and Williams, Lee, Sears & Kennerly, all of Houston, Pitts & Liles and McComb & Davis, all of Conroe, and John C. Jackson and Wm. E. Loose, both of Houston, for appel-lees.
   O’QUINN, Justice.

On August 24, 1940, there was pending on the docket of the Special Ninth District Court of Montgomery County, Texas, a cause entitled John Vince v. Humble Oil & Refining Company, et al., which included as a defendant the Texas Company, said, cause being numbered No. 18253 — B, and over which said district court the Hon. E. T. Murphy presided as judge. On said date, August 24, 1940, a judgment was duly entered, that plaintiff, John Vince, take nothing by his suit, and that the defendants, naming them, go hence with their costs. The plaintiff, John Vince, duly filed his motion for a new trial, which in due order was heard, and on September 6, 1940, overruled, and notice of appeal was given.

On September 21, 1940, appellant, John Vince, executed his affidavit of inability to pay the costs of appeal or any part thereof, and that he was unable to give security therefor, and prayed that he be permitted to appeal his cause on his said affidavit. This pauper’s affidavit was duly contested by Hon. G. L. Dahl, the official stenographer of the court, and Hon. Nan Weems McGuire, the Clerk of the district court in which said cause had been tried and was pending. The Texas Company, and numerous other defendants, joined said stenographer and clerk in their contest fully answering and alleging various grounds why such appeal should not be allowed. After due notice, the contest was heard by the court, Hon. E. T. Murphy, district judge aforesaid, and permission to prosecute the appeal upon the pauper’s affidavit was refused.

This proceeding is a request by appellant, John Vince, for permission to file in this court an application for a writ of mandamus to said G. L. Dahl, stenographer of the court, and Nan Weems McGuire, clerk of said district court, aforesaid, to compel them to prepare and deliver to appellant, John Vince, a proper and complete transcript of all of the proceedings had in the district court in the trial of said cause, and for a complete and correct statement of the facts containing all of the evidence adduced by the parties in the trial of same.

There is before us a statement of the facts adduced upon the hearing of the motion for permission to appeal the case on the affidavit of appellant’s inability to pay the costs, or to secure the payment of same. After careful consideration of the evidence contained in the statement of facts adduced on the hearing in the contest of said affidavit, we are of the opinion that the court did not abuse the discretion vested in him in refusing the permission .to so appeal. Stark v. Dodd, Tex.Civ.App., 76 S.W.2d 865. The evidence abundantly supports the action of the court in refusing the request.

The request for permission to file application for the writ of mandamus is refused.


author: STOKES, Justice.

text:
    STONE et al. v. LUZIER’S, Inc., et al.
    No. 5215.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1940.
    For former opinion, see 144 S.W.2d 658.
    T. L. Price and Joe S. Moss, both of Post, for appellants.
    Robert J. Allen, of Lubbock, for Leona Roffey.
    Wilson, Randal & Kilpatrick, of Lubbock, for Luzier’s, Inc.
   STOKES, Justice.

This case is before us upon the motion of appellee, Leona Roffey, to retax the costs incurred in this appeal. Appellant filed the suit in the district court of Garza County against Luzier’s, Inc., a Missouri corporation, and Leona Roffey. Luzier’s, Inc., filed its answer and appellee, Leona Roffey, filed a plea of privilege in which she alleged that she was a resident of Lubbock County and prayed that the cause be transferred as provided by law to the district court of that county. Appellant filed a controverting affidavit but she did not prosecute the same and the plea of privilege was sustained by the district court of Garza County and an order entered transferring the entire cause as prayed for. Appellant perfected an appeal from the order and presented the case in this court upon two propositions, one of which was that the court erred in transferring the cause of action against Luzier’s, Inc., since the corporation had filed an answer in the case and had not joined in the plea of privilege. This contention of appellant was sustained by us, and the judgment of the court below, in so far as it ordered a change of venue in respect to Luzier’s, Inc., was reversed. The costs of the appeal were taxed against appellee, Leona Roffey, and she now insists that we erred in taxing her with the costs. Her contention is that, inasmuch as appellant did not contend in the trial court that the cause of ’action as against Luzier’s, Inc., should not be transferred to Lubbock County merely upon the plea of privilege of Leona Roffey, and that the action of the court below in changing the venue as to her was affirmed, the costs of the appeal should be assessed against appellant.

The order of the court below changing the venue of the case provides that the plea of privilege of appellee, Leona Rof-fey,' be granted and that the cause “in its entirety as to both defendants be and is hereby transferred to the district court of Lubbock County.”

When the case was presented in this court upon the appeal from the order changing the venue, appellee, Leona Roffey, filed a brief in which she insisted that the action of the court below was in all respects correct and proper and she vigorously contested the contention of appellant that the trial court erred in transferring the entire case to the district court of Lubbock County. Thus it will be seen that she insisted from the beginning, not only in the trial court but in this court, that, under her plea of privilege, the entire case, including the cause of action against Luzier’s, Inc., should be transferred to the district court of Lubbock County. The court below sustained her contention and the appeal was made necessary because of her prayer and insistence that the venue of the entire case be changed. The hearing was before the court without a jury and appellant was not required to file a motion for a new trial. Under these conditions appellant had the right to appeal from the order without the necessity of calling the trial court’s attention to the error. Furthermore, we are not warranted in the presumption that the trial judge would have changed his ruling on the point even if a motion for a new trial had been filed and the matter called to his attention. The order transferring the case is very positive in its terms and refers specifically to the cause of action in its entirety as to both of the defendants. The judgment of the court below was in accordance with the prayer of appellee and it was equally her duty to see to it that the order transferring the cause of action did not transcend the provisions of the law or grant relief against appellant, and materially affecting the rights of Luzier’s, Inc., under a motion and plea to which it was not a party. Western Royalty Corp. v. White, Tex.Civ.App., 51 S.W.2d 1097; Chicago, R. I. & G. Ry. Co. v. Bell, Tex.Civ.App., 168 S.W. 396; Security Benefit Ass’n v. Tucker, Tex.Civ.App., 111 S.W.2d 333.

Since the venue of the entire cause of action was transferred upon the motion and prayer of Leona Roffey, and the record does not warrant us in assuming the court below would have changed his ruling even if it had been called to his attention, and the costs of the appeal were incurred by reason of her plea and insistence throughout that the entire cause of action be transferred, the costs of the appeal were properly taxed against her and the motion will, therefore, be overruled.