author: LESLIE, Chief Justice. ■

text:
    REFRIGERATION DISCOUNT CORPORATION et al. v. MEADOR.
    No. 2035.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1939.
    Rehearing Denied Dec. 1, 1939.
    H. C. Ray, of Fort Worth, for appellants.
    Oxford & McMillan, of Stephenville, ■for appellee.' ’ , ■ ...
   LESLIE, Chief Justice. ■

This is an appeal from an Ex Parte order of the District Court of Erath County, Texas, granting a temporary injunction without notice enjoining the execution of a judgment rendered by the County Court, at Law No. 2, Tarrant County, Texas.. The writ was made returnable to the District Court of Erath County.

The Refrigeration Discount Corporation recovered a judgment against the plaintiff in Cause No. 36028 in the County Court at Law No. 2 of Tarrant County, Texas. Thereafter an execution was issued on the same and placed in the hands-of Carl W. Turnbow, Sheriff of Erath County. The object of this proceeding on the part of Meador is to .restrain the judgment- creditor and the sheriff from levying the execution upon property of plaintiff.

The theory of the plaintiff’s cause of action is that the judgment of said County Court at Law is void in “that the amount involved in the suit in the County Court of Tarrant County was less than $200.”

“The appellee attached to his petition a copy of the execution issued out of said court and which the sheriff was undertaking to levy, which execution shows that the original judgment claimed was $167.” (Appellee’s brief)

That is the gist of Meador’s contention that the judgment is void. The parties will be referred to as they style themselves in their pleadings and briefs.

The appellee’s first counter proposition is that “Where a suit filed in the County Court involves less than $200 the County Court is without jurisdiction and a judgment rendered in such suit is a nullity.” This is the substance of other counter propositions.

The judge’s’ authority to grant the temporary injunction is challenged on different grounds, but mainly because the relief was granted without notice and hearing and also upon a petition wholly insufficient in that it seeks to enjoin a judgment as void for want of jurisdictional amount in the County Court where rendered without alleging further that the amount sued! for or the value of the property foreclosed on was also outside the jurisdiction of said County Court.

We sustain each of these contentions. In this character of proceeding the practice and principles of equity require notice and hearing when practicable, Arts. 4654, 4663, R.S.1925; 14 R.C.L. 324; hut generally the granting of such writs ex parte' is disapproved. Southwestern Surety Ins. Co. v. Ferguson, 62 Tex.Civ.App. 332, 131 S.W. 662; 24 Tex. Jur. p. 172, sec. 127, et seq. No pressing necessity or impending irreparable injury or loss is alleged as a justification for granting the relief without notice and hearing. No such allegations of fact as contradis-tinguished from mere conclusions are alleged. In the respect under consideration the case is like that disposed of by this court in International Harvester Co. v. Farmers & M. Nat. Bank of De Leon, 126 S.W.2d 690. The authorities therein cited are in point here.

A careful consideration of the allegations of the petition discloses that it fails in other material respects to state grounds for the relief sought. The averment of material and essential elements are wholly insufficient to negative in any definite way every inference of the existence of other facts under which the petitioner would not be entitled to the relief sought. As held in Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964, 966, “The rule is settled in this state that a petition for injunction must clearly and distinctly state a.11 the material and essential elements entitling the party to relief, and negativing every reasonable inference arising upon the facts so stated, that the party might not, under other pertinent supposable facts, be entitled to relief.” Citing many authorities.

The same rule is very clearly stated and applied, by this court in a recent opinion 'in T. E. Powell et al. v. City of Baird, Tex.Civ.App., 132 S.W.2d 464.

The wisdom of such rule could hardly find better illustration than that given by the facts, or possible facts, of the instant case. Here the judgment in the County Court in the sum of $167 is sought to be enjoined as void on the ground that the matter in controversy in the county court did .not exceed $200. In connection with such alleged fact ($167) are pertinent, or certainly supposable facts, namely, that (1) the amount, sued for in good faith exceeded in value $200 and fell within the jurisdictional limits of the county court, or (2) the jurisdictional amount (or matter in controversy) might well have been controlled by the amount or value of the property covered by a chattel mortgage on which foreclosure was sought. These sup-posable facts were not negatived and t-he requisites of a sufficient pleading or notice and hearing would have disclosed the true facts in each respect.

The above fatal deficiency in the pleadings renders- them insufficient to support the relief granted, but we find from a study of this record that attached to the appellant’s assignments below are the pleadings upon which the judgment sought to be enjoined was .rendered. The petition in that court reveals that the matter in controversy or amount sought to be recovered was $217 and that foreclosure of a mortgage lien -was sought on property valued at $244, and found by the County Court fo be of that value. These facts omitted from allegations of the petition illustrate how the rule works and the soundness thereof.

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


source: Caselaw Access Project

author: LESLIE, Chief Justice.

license: Public Domain

text:
    HORNE v. RODGERS.
    No. 1952.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1939.
    Wynne & Wynne, of Wills Point, for appellant.

      Thomas & Thomas, of Anson, for appel-lee.
   LESLIE, Chief Justice.

L. L. Horne instituted this suit in trespass to try title, and in the alternative for specific performance of a contract to convey certain property. The defendant filed his plea of privilege to be sued in Collin County, the county of his alleged residence. A trial was had on the issues raised and the result was a judgment in favor of the defendant sustaining the plea of privilege and directing a change of venue to the District Court of Collin County. The plaintiff has appealed, hut has filed no briefs. In that condition of the record we have examined the same for fundamental error. Finding none, the judgment of the trial court is affirmed. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811. It is so ordered.


author: ALEXANDER, Justice.

text:
    WEBESTER et al. v. HENWOOD.
    No. 2159.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1939.
    Rehearing Denied Dec. 14, 1939.
    J. S. Callicutt, of Corsicana, for plaintiff in error.
    Richard & A. P. Mays; of Corsicana, and Ramey, Calhoun & Marsh, of Tyler, for defendant in error.
   ALEXANDER, Justice.

This suit was brought by Montee - Webester for herself and as next friend for her minor children against Berryman Henwood, trustee of St.. Louis- .Southwestern Railway Company of Texas,, for damages for injuries resulting in the death of Lorenzo Webester, who was the husband of Montee Webester and father of her minor children. At the conclusion of, the evidence the court instructed, a verdict in favor of the defendant. The plaintiffs have appealed..

The plaintiffs assign as error the ruling of the court in instructing a verdict for the defendant. The plaintiffs alleged that while the deceased was attempting to cross the defendant’s track at a public crossing in the city of Corsicana, the defendant’s servants in charge of one of its switch engines negligently operated said switch engine at a high rate of speed across a public crossing without keeping a proper lookout and without giving any warning of the approach thereof, and, as a consequence, said Lorenzo Webester was struck and injured, and that he later died from his injuries. There was evidence that the said Lorenzo Webester left home on the morning of August 29, 1936, to go to his farm. The record does not make it clear but we presume he was walking. He had to cross the railroad track enroute. John Washington, who lived near the railroad track where it crossed 3rd street in the city of Corsi-cana, testified that he got up about five o’clock that morning. It was dark at that time. While he was up he saw the lights and heard the roar of a switch engine as it crossed 3rd street. When the engine was about even with the front of his house, he heard the voices of two or three men. They said, “Hey, hey, hey.” He went back to bed and shortly thereafter a man with a lantern in his hand and dressed as a railroad man came to his, Washington’s, door and said: “There was a man knocked in the head.” Witriess then went out and-fo.und Lorenzo Webester in the street, about four feet from the railroad track. He had a gash on the right side of his head and some soot or smut, described as being “like engine smut,” on the shoulder of his shirt. Witness asked the injured man how he had received his injuries but received no -reply. He helped to carry Webester into his house and called a doctor. He found some blood on one of the cross-ties. Later, the injured man was removed to the hospital. Witness did not hear any whistle or bell. John Washington’s wife testified that the roar of the engine and the voices of the men awoke her. She corroborated her husband in most particulars. None of the railroad employees testified and no one else undertook to describe the manner in which Webester received his injuries. Webester was released from the hospital but later contracted tuberculosis, possibly as a result of b,is injuries,-and died in September 1937.

There was no evidence whatever o sustain plaintiffs’ charge that the switch w/igifie in question was being operated at an excessive rate of speed or that the employees in charge thereof failed to keep a-proper lookout.- For the sake of the discussion, it may be assumed that the evidence was sufficient to have justified an inference that Webester was struck by defendant’s switch engine, and that the employees in charge thereof were negligent in-failing to sound the whistle or ring the bell,, but we are left wholly in the dark as to how the accident occurred. There was no evidence whatever that such negligence, if any, on the part of the defendant was the proximate cause of the accident. The burden was on the plaintiff to not only prove the negligence of the defendant, but that such negligence was the proximate cause of the injury, for there is no presumption, that the negligence proven was the proximate cause of the injury. Missouri Pacific Ry. Co. v. Porter, 73 Tex. 304, 307, 11 S.W. 324; Caliandro v. Texas & Pacific Ry. Co., Tex.Civ.App., 103 S.W.2d 439. It is undisputed that the lights on the engine were burning and that the engine was making a great noise — sufficient to awaken those-living near the track — yet, the deceased either went onto the track or remained thereon in the face of the approaching engine. From these and other facts proven, it would be as reasonable to .presume that the accident was caused by the deceased’s own contributory negligence as it would that it was caused by the negligence of the defendant’s employees. Where the facts- and circumstances in evidence thus wholly fail to establish with any reasonable certainty the manner in which the accident occurred, a jury would not be authorized to presume that it resulted from the defendant’s negligence in failing to ring the bell or sound the whistle. Texas & N. O. Ry. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164. The vital point is that the plaintiffs wholly failed to establish any causal1 connection between the defendant’s alleged negligence in failing to ring the bell and sound thg whistle and the injury to the deceased. Since proximate cause cannot be presumed from the mere happening of the accident, but, like any other essential element, must be established in some manner, either by direct or circumstantial evidence, and since the plaintiffs wholly failed' to meet this essential requirement, the trial court properly instructed the jury to-return a verdict for the defendant. 30. Tex.Jur. 799; Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049;. Missouri P. Ry. Co. v. Porter, 73 Tex. 304, 11 S.W. 324; Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502; Houston, E. & W. T. Ry. Co. v. McHowell, Tex.Civ.App., 278 S.W. 258; Campos v. St. Louis B. & M. Ry. Co., Tex.Civ.App., 43 S.W.2d 487; Missouri K. & T. Ry. Co. v. Greenwood, 40 Tex.Civ.App. 252, 89 S.W. 810; Kelley v. Burlington-Rock Island R. Co., Tex.Civ.App., 100 S.W.2d 164; Western Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895; Chandler v. Texas & N. O. Ry. Co., Tex.Civ.App., 103 S.W.2d 811; Caliandro v. Texas & P. Ry. Co., Tex.Civ.App., 103 S.W.2d 439; Texas & New Orleans Ry. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164; Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049.

The judgment of the trial court is affirmed.


author: BAUGH, Justice.

text:
    POSEY v. WILLIAMSON et al.
    No. 8962.
    Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1939.
    Rehearing Denied Dec. 20, 1939.
    Fuchs & Fuchs, of New Braunfels, for appellant.
    Tom' G. Oliver, Jr., of San Marcos, for appellees.
   BAUGH, Justice.

This is an appeal from an order of the District Court of Comal County sustaining appellees’ plea's of privilege to be sued in Hays County. Suit was by appellant to enjoin appellees from building a fence without a gate across a roadway claimed by appellant as an easement from his lands in Comal County over and across appel-lees’ lands to a public road in Hays County. A temporary injunction was granted.The defendants filed pleas of privilege to be sued in Hays County, which were duly controverted, a hearing had thereon, and the pleas granted. None of the defendants lived in Comal County.

The first contention made by appellant is in effect that his lands were located in Comal County; that the easement claimed by him over other lands was an appurtenance to his land; that the destruction of it would cause damages to his own lands; and that his suit was to prevent damages to his lands in Comal County. Consequently, that he was entitled, under Sec. 14, Art. 1995, R.C.S., to maintain venue of his suit in Comal County. Stated otherwise, that the location of the dominant estate and not that of the servient estate determines venue in suits involving easements, citing, among other authorities, Lakeside Irrigation Co. v. Markham Irrigation Co., 116 Tex. 65, 285 S.W. 593; and Coughran v. Nunez, Tex.Com.App., 127 S.W.2d 885, 886.

If there had been no controversy that appellant had an easement over ap-pellees’ lands, or if such had already been established by law, then appellant’s contention, under the authorities cited, might be correct. But no such situation is 'here presented. It is well settled that such an easement over the lands of another is an “interest in land,” and “a charge upon the estate or property of the servient tenement.” Miller v. Babb, Tex.Com.App., 263 S.W. 253, 254; Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014; 15 Tex.Jur., p. 771, § 3; 17 Am.Jur., p. 925, § 3. The essential qualities of an easement are set out in Magnolia Pet. Co. v. Caswell, Tex.Com.App., 1 S.W.2d 597, 600. If its existence be denied, or be not established as a matter of law, and suit be brought either to establish it, or to preserve it, then the inquiry is: What interest in what land is asserted? And where its existence is denied by the owner of the servient estate over which it is asserted, then the claimant must first prove that he has such easement before he can preserve it by injunction or recover damages for its obstruction or denial. 15 Tex.Jur., p. 809, §37; 17 Am.Jur., §§ 152, 153, pp. 1036, 1037; 47 A.L.R. 557.

Manifestly an owner cannot have an easement over his own property. “It always implies an interest in land in or over which it is to be enjoyed.” Coughran v. Nunez, Tex.Com.App., 127 S.W.2d 885, 888. It is clear, therefore, in the instant case that before appellant would be entitled to the injunctive relief sought, he must first establish an easement over ap-pellees’ lands. That is, he must show that he has such interest in their lands; and the venue of such controversy would lie in the county where these lands were located; not in the county where the land to which such easement, if established, would inure.

The only other question which we deem it necessary to discuss is whether the lands of appellees, or a part thereof, were located in Comal County. Much of the evidence introduced upon the trial was upon this issue. That is, as to what was the location of the common boundary line between Hays and Comal Counties in the vicinity of these lands. It seems not to be controverted that the location of such line is at least uncertain and not definitely established on the ground as contemplated by law. Nor is it controverted that ap-pellees had at all times rendered their lands for taxation as being in Hays County, and had paid all taxes thereon to the tax collector of Hays County; and that none of them had been rendered for taxes nor taxes paid thereon at any time in Co-mal County. Without detailing or summarizing such evidence here, suffice it to-say that it was clearly sufficient to sustain a finding by the trial court that appellees’' lands were situated wholly within Hays-County. This was a fact question to be determined by the trial court on the issue of venue; and the trial court having sustained appellees’ pleas of privilege, it will be presumed that he found in favor of the appel-lees on this issue.

Finding no error in the record, the judgment of the trial court will be affirmed.

Affirmed.


author: HIGGINS, Justice.

text:
    SMITH et al. v. ZENITH CORPORATION.
    No. 3887.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 16, 1939.
    Saunders & Smith, of Tyler, for appellants.
    Richard Nicolds, of Longview, for appel-lee.
   HIGGINS, Justice.

Israel Smith filed suit against Zenith Oil Corporation described in the petition as a private corporation, incorporated under the laws of Texas, having its principal office and place of business in the City of Tyler, County of Smith, and alleging that A. D. Swan is President and service may be had upon him at his residence in Tyler, Smith County, Texas. This suit was No. 6364.

The suit was upon an open account for goods, wares and merchandise, alleged to have been sold by Baker Oil Tools, Inc., to the defendant. Smith sued as the as-signee of said vendor and sought recovery of the purchase price in the sum of $307.-70. Citation issued directing the officer “to summon A. D. Swan, agent for service of The Zenith Oil Corporation.” The citation was served upon A. D. Swan.

On September 8, 1938, judgment by default was rendered in favor of Smith against Zenith Oil Corporation for $307.70, with legal interest from that date. The judgment recites due service. Upon this judgment an execution was issued which was, by the Sheriff of Gregg County, levied upon a mineral interest in a tract of land.

The present suit was brought by the Zenith Corporation, a corporation, against Smith and the Sheriff of Gregg County to enjoin the sale of said mineral interest under the execution and levy aforesaid, and to enjoin the enforcement, or attempted enforcement, of the aforesaid judgment as against the plaintiff.

It was alleged by the plaintiff that there is no judgment against it in favor of Israel Smith in Smith County, Texas, and that plaintiff had never been served with citation in any cause in the County Court of Smith County wherein Israel Smith was plaintiff, and this plaintiff is not and never has been a legal entity having the name of Zenith Oil Corporation. Judgment was rendered in plaintiff’s favor granting the relief prayed.

There are two defects in the proceedings in cause No. 6364. The first is the misnomer in the name of the plaintiff in the present action. This is a matter which affords no warrant for the relief sought by the appellee. Abilene I. T. & T. Co. v. Williams, 111 Tex. 102, 229 S.W. 847.

Ths other defect is in the citation issued and served upon Swan, the agent of the plaintiff. In support of its theory that this defect renders the judgment void and an injunction will lie to prevent its enforcement appellee cites and relies upon Gulf, C. & S. F. Ry. Co. v. Rawlins, 80 Tex. 579, 16 S.W. 430; Texas-Mexican Ry. Co. v. Wright, 88 Tex. 346, 31 S.W. 613, 31 L.R.A. 200, and other cases. These authorities 'have no application upon the present facts.

This suit was filed November 23, 1938. Attached to and made a part of the petition is a copy of the execution which was issued in cause No. 6364 and the enforcement of which the appellee seeks to have enjoined. The execution recites the judgment in cause No. 6364 was rendered August 1, 1938, though the judgment as it appears in the statement of facts shows it was rendered September 8, 1938. It is thus apparent appellee had notice of the rendition of the judgment and issuance of execution therein in ample time for it to prosecute a writ of error to review such judgment. The record upon such writ of error would have disclosed the defective citation and would have called for reversal. Having failed to pursue the legal remedy available to it for setting aside the judgment, the appellee is • not entitled to the equitable remedy of injunction to enjoin the enforcement of said judgment and the sale of property under the execution issued upon the same. 25 Tex.Jur. p. 640, § 225; Galveston, H. & S. A. Ry. Co. v. Ware, 74 Tex. 47, 11 S.W. 918; Miller v. Burnet Mercantile Co., Tex.Civ.App., 65 S.W.2d 505; Texas-Mexican Ry. Co. v. Wright, supra; Reynolds v. Volunteer S. L. Ins. Co., Tex.Civ.App., 80 S.W.2d 1087.

The error in granting the relief sought is an error in law apparent upon the face of the record. It is fundamental and requires reversal and rendition, for it is a matter which cannot be corrected' by amendment.

There .is this further fundamental error apparent upon the face of the record and calling for reversal: The appellant in the court below, appellee here, in its petition did not deny its indebtedness upon the open account sued for by Smith in cause No. 6364. Appellee set up no defense to Smith’s suit in said cause. It, therefore, is not entitled to the injunctive relief which it sought. Brown v. Clippinger, 113 Tex. 364, 256 S.W. 254; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963.

For the errors indicated the judgment is reversed and here rendered in favor of appellant.


author: SPEER, Justice.

text:
    SIMMONS et al. v. GARDNER et al.
    No. 13982.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1939.
    Rehearing Denied Dec. 22, 1939.

      John S. Morris, of Fort Worth, for appellants.
    G. L. Robertson and Samuels, Foster, Brown & McGee, all of Fort Worth, for appellees.
   SPEER, Justice.

This appeal grows out of the refusal by the District Court of Tarrant County to probate a will brought before it on application for a writ of certiorari to the Probate Court of that county.

In April, 1935, Gertrude S. Wilson died testate and left surviving, her two daughters, Mrs. Emma G. - Simmons and Mrs. Helen Gardner, and their respective minor children.

On November 22, 1935, Emma G. Simmons, joined by her husband, individually and as next friend for her minor children, Carolee Simmons, Helen Simmons, Mary Jane Simmons and June Simmons, filed in the Probate Court of Tarrant County, Texas, an application to probate the will and a codicil thereto of Gertrude S. Wilson, deceased. To that application a copy of the proposed will and codicil were attached. By the exhibit attached to the application, the will, as originally executed, made certain provisions which affect the amount devised to each beneficiary. Subsequent to its execution, testatrix had made certain changes in the will, by drawing a pencil line through some words and interlining other words and figures.

We shall illustrate as best we can what was done in the respect mentioned. ' The original instrument provided that the trustees should receive the .revenues from the estate and divide same into eleven parts; four-elevenths should go to Helen Gardner, two-elevenths to Emma G. Simmons and the remaining five-elevenths were devised in equal parts to the five grandchildren, four of whom were the children of Emma G. Simmons, and one was a child of Helen Gardner. The pencil changes consisted, (1) of marking out the word “eleven”, wherein it was provided for a division of the income into that many parts, and “10 parts” was interlined; (2) where originally the will provided that “four-elevenths” should be enjoyed by Helen Gardner, she wrote in pencil, “two and one-half tenths” should so be enjoyed by that beneficiary; (3) the original instrument provided that “two-elevenths” of the income should be enjoyed by Emma G. Simmons, but above the quoted part she wrote in pencil, “two and one-half tenths,” should go to Emma. The bequests to Emma and Helen (her own daughters) were limited to life estates; and (4) where the original will had provided that “five-elevenths” of said income should go to the grandchildren, she interlined with pencil “five-tenths”. Other provisions relating to contingencies of death among the beneficiaries are found in the will, but they are unimportant on this appeal.

The application filed in the probate court sought to probate the will, not as originally written and executed, but as modified and changed by the pencil marks referred to, and to probate the expressions found in the pencil changes as a codicil to the original will. To have granted the relief thus sought would have changed materially the bequests as originally made.

Helen Gardner, joined by her husband, contested the application for probate as presented. Upon a hearing, on May 8, 1936, when all interested parties were before the court, the application for probate was denied. No appeal was taken to the District Court.

On August 8, 1938, Carolee Simmons, Helen Simmons, Mary Jane Simmons and June Simmons, the minor children of Emma G. Simmons, acting through next friend, W. R. Simmons, made Helen Gardner and husband, Emma G. Simmons and husband, and Charles Hodges (the minor son of Helen Gardner), defendants, in an application to the District Court of Tar-rant County, Texas, for the writ of cer-tiorari to the Probate Court of that county. In the application, allegations were made of the death and last will of Gertrude S. Wilson. The application also contains allegations of the pencil markings on the will, which we have heretofore shown, but it is alleged that such markings and interlineations were not made by testatrix at a time no.r under conditions that would constitute a revocation or alteration of the will, as originally executed by her. A copy of the will is attached to the application, but does not disclose the interlineations. That the denial of probate by the County Court was error and that the writ should issue, and upon hearing the District Court should revise and correct the order of the County Court, denying probate, and admit said will, as originally executed by testatrix, to probate (disregarding all said pencil markings and interlineations).

The minor, Charles Hodges, appeared by his guardian ad litem and adopted the pleadings of applicants for the writ. Defendants, Helen Gardner and husband, .resisted the application for certiorari and again contested the probate of the will, as prayed for by applicants.

The writ was issued and a hearing had to the court. Judgment was entered, denying the relief sought, upon the grounds, as stated in the decree, the court was without jurisdiction to order the will, as presented, probated as the last will of Gertrude S. Wilson, deceased, and dismissed the case. From this judgment, applicants for the' writ have appealed.

The facts are undisputed; the court, upon request, filed findings of fact and conclusions of law, which are accepted by all parties, as reflecting the facts, but only the conclusions of law by the court that he was without jurisdiction in the matter, are contested. We think the issues were properly disposed of by the judgment entered.

The court found the facts, in regard to the original application for probate, to be as indicated by us in the statement made as to the nature of the case. He found that the pencil lines and interlineations had been made in the original document, as indicated; but that such apparent changes did not affect the validity of the instrument for testamentary purposes, if an attempt had been made in the Probate Court to have it probated, as was done in the District Court. It was found by the court that the will, as originally executed (disregarding the interlineations), was presented for the first time for probate to the District Court, whereas it should have been first proposed to the Probate Court of Tarrant County, Texas.

The apparent defacement of the instrument, by the means mentioned, did not constitute a revocation of the will. It did not in any respect meet the statutory requirements which provide how a revocation may be made. Article 8285, R.C.S.; Kennedy v. Upshaw, 64 Tex. 411; Frame v. Whitaker, Tex.Civ.App., 7 S.W.2d 140, reversed on other ground, 120 Tex. 53, 36 S.W.2d 149; Leatherwood v. Stephens, Tex.Com.App., 24 S.W.2d 819; Sien v. Beitel, Tex.Civ.App., 289 S.W. 1057.

By virtue of Constitution Article 5, Section 16, Vernon’s Ann.St., our County Courts have original jurisdiction in matters of probating wills. As we have shown, no effort was made to have the will of Mrs. Wilson probated in county court, as originally written and executed by her. The District Court was asked to issue the writ of certiorari and to review and revise the judgment of the county court, wherein the probate court had refused to probate the proposed altered will and to give it effect as altered, and in which the court had refused to consider the inter-lineations as constituting a codicil; the District Court was asked to order probated the original will, which would be to disregard those things sought to be considered in the probate court. The district court has only appellate jurisdiction in probate matters and can only review on appeal those matters that were heard and passed upon by the county court in the exercise of its original jurisdiction. Magee v. Magee, Tex.Civ.App., 272 S.W. 252, writ dismissed.

The jurisdiction of the district court in such cases as this is acquired under Articles 932 to 939, R.C.S. In the nature of things, while the trial on appeal is de novo; yet only the issues 'that were before the county court can be heard and determined by the district court on appeal. Leatherwood v. Stephens, Tex.Com.App., 24 S.W.2d 819; Franks v. Chapman, 61 Tex. 576; Minor v. Hall, Tex.Civ.App., 225 S.W. 784, writ dismissed. Many authorities are cited in the last mentioned case, to which we also refer.

The trial court indicated in his judgment that if the application that was made in that court had been made first in the probate court, he could see no .reason why it should not have been granted. This, too, is obvious to us, but we hold as did the trial court, that it was without jurisdiction to order the will probated, when presented-to that court for the first time.

We hold that the judgment entered was a proper one under all the undisputed facts, and it should be affirmed. It is so ordered.


author: GRISSOM, justice.

text:
    LETCHER v. STATE.
    No. 2030.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 10, 1939.
    R. Temple Dickson, of Sweetwater, for appellant.
    Gerald C. Mann, Atty. Gen., Geo. W. Barcus, M. C. Martin, and Fred Chandler, Assts. Atty. Gen., and Truett Barber, Dist. Atty., of Colorado City, for defendant in-error.
   GRISSOM, justice.

This suit was instituted by the State of Texas, under Art. 666 — 29, Vernon’s Tex. Pen.Code 1936, to enjoin Harold Letcher from selling,' etc., intoxicating liquor in a building owned by him in Mitchell County; to declare the building a common nuisance, and for an order closing the place for a period of one year, or until the owner should execute a bond as required by law.

Upon a trial on the merits, judgment was rendered for the plaintiff as prayed for and in accordance with the aforesaid statute. Defendant has appealed and by super-sedeas bond has suspended enforcement of the judgment pending appeal.

Appellant has filed no brief. Appellee has filed a brief and appeared by counsel. We have examined appellee’s brief and the judgment of the court. We find the judgment is such as can be affirmed under the view presented by appellee, and that the record as presented shows no reversible error. Without examining the record further, in accordance with the Courts of Civil Appeals Rule No. 39, we affirm the judgment of the trial court. Guaranty Old Line Life Ins. Co. v. Leonard, Tex.Civ.App., 109 S.W.2d 1091.

Affirmed.


text:
    WINKLER v. FIRST NAT. BANK OF PECOS.
    No. 3824.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 9, 1939.

      W. A. Hadden, of Fort Stockton, for appellant.
    Henry Russell and James D. Willis, both of Pecos, for appellee.
   HIGGINS, Justice.

The First National Bank of Pecos, Texas, brought this suit against Sam Wink-ler and N. Winkler to recover upon a promissory note in its favor executed by the defendants. Sam Winkler answered the plaintiff’s petition by general demurrer and general denial. N. Winkler answered in like manner, and further set up that he was a surety upon the note for his codefendant, and asked that upon the hearing the question of principal and surety be determined and if judgment be rendered in favor of the plaintiff the Court direct execution be issued as provided by law under the principal and surety statutes. To this pleading of N. Winkler the defendant Sam Winkler filed no answer.

The case was tried without a jury and the Court found that N. Winkler was not a surety on the note and denied the special relief sought by him as above' stated.

N. Winkler appeals, complaining only of the denial of the special relief sought by him against his co-defendant.

The undisputed evidence shows the suretyship status as pleaded by the appellant. Appellant so testified, and there is nothing whatever to impeach his testimony to that effect. On the contrary, such testimony is corroborated by Mr. Beauchamp, cashier of the plaintiff in the suit, who testified that Sam Winkler made all of the payments shown to have been pain upon the note, and it was his understanding that N. Winkler signed the note as surety for Sam Winkler.

In the state of the pleadings and undisputed evidence, the Court erred in finding against the appellant upon the issue of suretyship and in denying the special relief prayed by appellant. .

The judgment will be corrected so- as to direct that execution be first levied on the property of Sam Winkler, as provided by Article 6247, Revised Statutes, and that if appellant be compelled to pay the judgment or any part thereof, he be entitled to. execution against Sam Winkler, as provided by Article 6248, Revised Statutes.

As corrected, the judgment is affirmed.

The costs of the appeal are taxed against Sam Winkler.


author: BROWN, Justice.

text:
    ÆTNA LIFE INS. CO. v. SHIPLEY.
    No. 13987.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 24, 1939.
    Rehearing Denied Dec. 22, 1939.

      Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellant.
    Napier & Napier, of Wichita Falls, for appellee.
   BROWN, Justice.

Appellee, Mrs. Flossie Shipley, surviving wife of Jack Mack Shipley, brought suit against appellant, ¿Etna Life Insurance Company, to recover on a group life insurance policy issued to L. T. Burns and C. B. Long, intended to cover such of their employees as desired insurance protection thereunder. The policy was issued September 23rd, 1932, but the deceased, Ship-ley, did not elect to take out insurance thereunder until about October 16th, 1937, when he, as was required of him, made application for such protection in writing.

The following questions were propounded to Shipley, and the answers shown were given by him:

“Q. Are you now in good health and regularly performing the duties of your occupation? A. Yes.

“Q. Have you ever had any disease of the * * * stomach * * * or cancer? A. No.

“Q. Have you any infirmity or growths * * *? A. No.

“Q. Have you consulted, been examined or treated by any physician or practitioner within the past five years? A. Yes; (but the applicant gave as his answer that the treatment was ‘cold serum’, and as to the length or duration of his ailment, and the degree of recovery, ‘O. K.’).

“Q. Have you * * * been a patient in any hospital or sanatorium? A. No.”

The following statement is found in this application; “I hereby certify that the foregoing answers and statements are made by me and are complete and true, that they are correctly and fully recorded, and that no material circumstances or information has been withheld or omitted concerning my past and present state of health and habits of life, and I agree that the answers and statements contained herein shall form, a part of my application for insurance under said group policy.”

The policy of insurance contains the following provisions: “This policy, the application of the employer and the individual application, if any, of the employees insured, constitute the entire contract between the parties hereto. -All statements made by the employer or by the individuals insured shall in the absence of fraud be deemed representations and not warranties, and no statement shall avoid any insurance under this policy or be used in defense of a claim under it unless it is contained in a written application.”

The Insurance Company specifically pleaded the actual condition of Shipley, for several months prior to his making application for insurance, the fact that he had been ill, had been treated by a physician, had been to a hospital, that he was suffering from a cancer of the stomach, and was so advised by the physician who treated him, and that he died from the effects of a cancer.

The answer is full, complete and presents a good defense to any recovery upon the policy, if any of the material facts so pleaded are true.

The cause was tried to á jury, and before a charge was given by the trial court, the defendant requested the court to instruct the jury to find for it. The request was denied.

The jury made answers, in substance, as follows: (2) That Shipley was regularly performing the duties of his occupation on October 16th, 1937; (2a) that the failure of Shipley to regularly perform the duties of his occupation was not material to the risk assumed by the defendant company; (4) that Shipley was in good health on and prior to October 16th, 1937; (5) not answered, under the instructions as to the answer to 4; (6) that the representation made by Shipley, in his application, that he was in good health, was not fraudulently made; (7, 8, 9 and 9a) not answered, under the instructions as to the answer to 4; (10) that Shipley-'had not suffered with a duodenal ulcer on or prior to October 16th, 1937; (11) not answered under instructions as to the answer to 10; (12 and 13) not answered under instructions as to the answer to 11; (14) that the ulcer did not materially contribute to Shipley’s death; (15) that Shipley did not have a cancer of the stomach on or prior to October 16th, 1937; (16, 17, 18 and 19) not answered under instructions as to the answer to 15; (19a) that the cancer was not material to the risk assumed by the insurance company; (20) that Shipley did not have any growth on or prior to October 16th, 1937; (21) not answered under instructions as to the answer to. 20; (and 22 and 23) not answered because of instructions as to the answer to 21; (24 and 25) not answered under instructions as to the answer to 20; (26) from a preponderance of the evidence the jury found that the cause of Shipley’s death was unknown; (27) that Shipley did not have any stomach disease on or prior to October 16th, 1937; (28) that Shipley’s representation that he had not suffered from a stomach' disease was not fraudulently made; (29) that the representation by Shipley with respect to a stomach disease was not material to the risk assumed by the insurance company; (30) that Shipley's stomach disease was not material to the risk assumed by the insurance company; (31) that Shipley’s stomach disease which he had on or prior to October 16th, 1937, did not materially contribute-to his death; (32) that Shipley’s representation in his application that he had not consulted, been examined or treated by any physician or practitioner within the past five years was not fraudulently made; (33) that such representation was not material to the risk assumed by the insurance company; (34) that the jury “believed” that the Insurance Company would have insured Shipley if it had known the true facts concerning Shipley’s consulting and being examined and treated by a physician, “within the past five years”; (35) that Shipley’s representation that he had not had any sickness within the past five years for which he did not receive medical attention was' not fraudulently made; (36) that such representation was not material to the risk assumed by the insurance company; (37) that Shipley’s representation that he had not been a patient in a hospital or sanatorium was not fraudulently made; (38) such representation was not material to the risk assumed by the insurance company; (39) that the insurance company would have insured Shipley even if it had known the true facts as to such representation; (40) that prior to October 16th, 1937, Shipley never had any infirmity; (41, 42 and 43) not answered because of instructions as to the answer to 40; (44) that from March 1st, 1937, to October 16th, 1937, Shipley did not have any sickness for which he did not receive medical treatment; (45 and 46) not answered because of instructions as to the answer to 44.

After the verdict was received, the defendant moved for a judgment notwithstanding the verdict and its motion was denied.

Motion for a new trial being timely filed and overruled, the cause is brought before us for review of the judgment rendered for the plaintiff on the verdict.

At the very outset, we desire to say that we would not, in good conscience, permit this verdict and judgment to stand, because of the very nature of the verdict, and we want to draw a word picture of the verdict and show our reasons for such conclusion.

On the first issue submitted, the jury found that Shipley was regularly engaged in the performance of the duties of his occupation, on October 16th, 1937, and on the second issue, which was so worded that it required no answer unless the jury found that Shipley was not performing such duties, at such time, the jury found that Shipley’s failure to perform such duties was not material to the risk assumed by the insurance company.

In answer to issue No. 10, the jury found that Shipley had not suffered from a duodenal ulcer on or prior to October 16th, 1937, and in answer to Issue 14, which, by its wording, required no answer unless the jury found that Shipley had the said ulcer, the jury found that the ulcer which .Shipley had did not materially contribute to his death.

In answer to Issue No. 15, the jury found that Shipley did not have cancer of the stomach on or prior to October 16th, 1937, and .in answer to Issue 19a, which required no answer unless the jury found that Shipley did have such cancer, the jury found that the cancer which Ship-ley had was not material to the risk assumed by the insurance company.

In answer to Issue No. 27 the jury found that Shipley did not have a stomach disease on or prior to October 16th, 1937, and in answer to Issue No. 30, which required no answer unless the jury found Shipley had the stomach disease, the jury found that the stomach disease which Shipley had was not material to the risk assumed by the insurance company, and in answer to Issue 31, found that the stomach disease which Shipley had did not materially contribute to his death.

An analysis of the verdict discloses conflicts in the answers which, because of the very wording of the issues, may not be reconciled, and it is fundamentally erroneous to render a judgment on such conflicting findings. Furthermore, the verdict shows on its face a desire to return a verdict for the plaintiff, regardless of the evidence.

Some of the findings have absolutely no support in the evidence and some are contrary to all of the evidence adduced.

The undisputed evidence shows that Shipley was suffering from pains in his abdominal region as early as -February or March, 1937, and that he consulted and was treated by Dr, Bailey Collins; that, between the time of the first treatment and the making of the application for insurance, Shipley went at least twice to a hospital and that his abdomen was swollen and Dr. Collins punctured it and withdrew a large amount of fluid. That Shipley steadily grew worse and died on November 28th, 1937.

Dr. Collins testified to the illness of Ship-ley and that he had Shipley to go to Dr. Milt Glover for an X-ray examination, on or about March 4th, 1937. Both said doctors testified that, after the examinations were made by them, they decided Shipley had an ulcer of the duodenal cap. Dr. Collins testified that he treated Shipley for an ulcer but that he did not respond to the treatment and he then knew there was something else causing Shipley’s condition. Shipley was then X-rayed again on or about July 21st, 1937, by Dr. Glover, and both doctors testified that, after such examination, they diagnosed Shipley's case as cancer of the stomach.

Dr. Collins testified positively that he told Shipley then that he had cancer of the stomach and that he (the doctor) could not cure him and told him to feel free to go to any other doctor or place for treatment.

The proof of death introduced in evidence by the plaintiff, a part of which was the certificate of Dr.- Bailey Collins, shows that the cause of Shipley’s death was cancer of the stomach.

According to the testimony of Dr. M.. M. Walker, Shipley consulted him during the latter part of August, or the first of September, 1937, and that after giving him “the ordinary examination a man makes without an X-ray, that is, manipulation, palpation and history”, this doctor said, in answer to the question, “Did he have any symptoms of a cancer that you could see?” — “Well, it wasn’t my idea that he had a cancer. That wasn’t what I told him and wasn’t what I thought he had when I examined him. I told him very definitely I didn’t think he did.” .

We have read the entire testimony given by Dr. Walker and we do' not find where he ever testified to any conclusion of his as to what was wrong with Shipley. He disclosed no diagnosis, and although he was examined rather extensively concerning appendicitis, when he was asked, “Did you conclude he had a chronic appendicitis?” he answered, “Well I wasn’t definite. I didn’t make a definite conclusion about it except he asked me definitely if I thought there was any probability of cancer and I told him I didn’t think there was.”

This doctor testified that when Shipley came to him, he gave him a history of his case which he believed to be true and that, with his examination and the history given, he thought Shipley was a sick man, but not desperately ill.

Mrs. Shipley, the plaintiff, testified that she and her husband went to see Dr. Walker just to find out his opinion of Mr. Shipley’s condition and not for treatment; that although Dr. Walker wrote him a prescription, Shipley never had it filled.

We can conceive of no motive that would prompt Dr. Collins to distort the facts, or to indulge in any language calculated to injure the plaintiff’s cause, unless his testimony was truthfully given.

Dr. Collins was Shipley’s personal physician. He felt close enough to him to call Shipley by his given name.

The high ethical plane, on which the average physician lives, is such that its very nature renders the physician extremely loyal to his patient.

We are inclined to reverse and render this case, but we do not want to do violence to any right that the plaintiff may have.

We are inclined to the opinion that the very unsatisfactory testimony given by Dr. Walker, who shows' by his own statement that he made nothing more than a casual examination of Shipley, and the attempt upon the part of the plaintiff to impeach the testimony of Dr. Collins, is wholly insufficient to destroy the undisputed physical facts which show that Shipley was a sick man from early in 1937 up and until-he made application for the insurance, and the testimony of Dr. Collins and Dr. Glover who made rather thorough examinations of Shipley.

In short, we are inclined to the opinion that such evidence adduced is not sufficient to take the case to a jury.

In Forrester v. Southland Life Ins. Co., Tex.Civ.App., 43 S.W.2d 127, in which a writ of error was refused, the opinion quotes from Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 318, 48 S.Ct. 512, 513, 72 L.Ed. 895, wherein the court said: “For even the most unsophisticated person must know that, in answering the questionnaire and submitting it to the insurer, he is furnishing the data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure.”1

All of the evidence 'here discloses that Shipley had some character of ' disease or ailment, the seat of which was in his abdominal region, and all of the evidence shows that his death was the result of some disease or ailment suffered in such region.

Shipley knew he had it, and knew that he was both consulting and being treated by a physician for it, and admitting simply for argument’s sake that the jury would be warranted, under this record, in finding that Dr. Collins never told Shipley that he was suffering from a cancer, and that Ship-ley had a right to believe and rely upon t>r. Walker’s statement, that he had no cancer, nevertheless, Dr. Walker knew that Shipley was a sick man, and there is no testimony tending to show that Dr. Walker did not tell Shipley that he was a sick man and none that Dr. Walker told him that his illness was trivial or not serious.

In all fairness, should not Shipley have advised the insurance company of all the facts, to the end that it could have made such inquiry and investigation as it saw fit to do, before the policy was issued? We believe so.

Because of expressions found and the language used in the opinion in American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864, we do not reverse and render.

The trial court gave the following instructions in aid to the jury:

“The term ‘good health’ as used in this ■charge does not mean perfect health nor ■absolute perfection but is a state of health free from any disease or ailment that ■affects the general soundness and healthful-mess of the system seriously or which materially contributes to the death of a per-son.”
“The term ‘disease’ and ‘infirmity’ as used in this charge do not mean temporary 'bodily disorders of a minor nature but a ■condition which seriously affects the health of a person as is reasonably cal■culated to contribute materially to his ■death.”

While appellee does not concede error in the charge, she does express some doubt ■as to its correctness and submits the record for our judgment thereon without contending that the charge is correct.

In Sovereign Camp, W. O. W. v. Derrick, Tex.Civ.App., 64 S.W.2d 982, 983, in which a writ of error was refused, we find the following language: “In an approved definition of the term ‘sound health’ by the Commission of Appeals, and which expression has been held to be synonymous with that of ‘good health,’ it is said not to ■mean perfect health, nor absolute perfection, but ‘is a state of health free from any disease or ailment that affects the .general soundness and healthfulness of the system seriously, that is, that the insured be not affected with a disease or bodily infirmity of a substantial nature, which affects the insured’s general health, or which materially increases the risk to be assumed by the insurer.’ Vann v. National Life & Accident Ins. Co. (Tex.Com.App.) 24 S.W.(2d) 347, 349; Pickens v. Security Benefit Association, 117 Kan. 475, 231 P. 1016,. 40 A.L.R. 654, and annotations.”

The insurance company was entitled to such an instruction.

The trial court should not have given the following portion of the charge: “or which materially contributes to the death of the person.” If the disease or infirmity can be said to materially increase the risk to be assumed by the insurer and the facts concerning such disease or infirmity are withheld and are not disclosed by the applicant, who knows them, this is a defense to recovery upon a policy issued under such circumstances.

Furthermore, we believe that where an applicant for insurance is ill and goes to a physician for examination and treatment, even if the facts do not disclose that the applicant was advised as to his actual condition, or if there be doubt in the mind of the physician and in the mind of the applicant for insurance as to his real condition, it is the duty of the applicant to make such facts as are known to him, with respect to his illness, his treatment by a physician and his condition, known to the insurance company in such an application for insurance as was required of Shipley.

We cannot approve the definition of “disease and infirmity” as given by the trial court, wherein the court ends the definition with, “a condition which seriously affects the health of a person as is reasonably calculated to contribute materially to his death.’ (Italics ours).

We find the following language in Vol. 24, Tex.Jur., para. 188, page 940: “The word ‘disease’, however, may include, and is often used to designate, ailments more or less trivial; and an insurance company may, if it elects, inquire about any ailment, and take a warranty concerning it, lest it may affect the risk, although it cannot be known that it will.” This text cites Mutual Life Ins. Co. v. Simpson, 88 Tex. 333, 31 S.W. 501, 28 L.R.A. 765, 53 Am.St.Rep. 757.

It seems obvious to us that it cannot in justice and reason be held that in a case, such as is before us, the applicant for insurance is not duty bound to disclose to the insurance company, in the application for insurance, the fact of his bodily ailments unless the jury first finds that such ailment or ailments are reasonably calculated to have contributed to his death.

For the reasons given, the judgment is reversed and the cause remanded.


text:
    O’MARA v. HALL.
    No. 3889.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 16, 1939.
    Newland, Cornett & Whitworth, of Linden, for appellant.
    Carney & Carney, of Atlanta, and Bartlett & Pitman, of Linden, for appellee.
   HIGGINS, Justice.

This is a suit by the appellant O’Mara against the appellee Hall to enforce specific performance of a contract to convey a mineral interest in lands, and in the alternative to recover damages for the alleged breach of such contract. At the conclusion of the plaintiff’s evidence an instructed verdict was returned in favor of the defendant and judgment in accordance therewith rendered.

The written contract between the parties reads as follows:

“Escrow Agreement

“State of Texas “County of Cass.

“This agreement made by and between W. M. Hall, party of the first part (whether one or more), and John D. O’Mara, party of the second part (whether one or more), witnesseth:

“The attached mineral deeds covering the following described land situated in Cass County, Texas, only in so far as said mineral deeds cover and apply to the following described land: (Here follows brief description of three tracts of land), together with the sum of Twenty Thousand and no/100 ($20,000.00) Dollars, is hereby placed in escrow with J. R. Jones of Cass County, Texas, upon the following conditions, to-wit:

“Party of. the second part shall have said title to said mineral deeds passed upon by a competent attorney within - days from date hereof. If said title is good and merchantable then said escrow agent shall pay said sum to party of first part, and shall deliver said mineral deeds to party of second part immediately. The opinion of said attorney shall be in writing, and if he shall hold that said title is defective, then all defects shall be clearly indicated and set forth by him in writing. If said title is defective, then party of the first part shall have five days from the date said attorney’s opinion is delivered to him within which to cure said defects, and if he should fail to cure said defects then said mineral deeds shall be delivered by said escrow agent to party of the first part and said sum of money shall be delivered and paid over by said escrow agent to party of the second part immediately.
“In witness whereof we have hereunto set our hands at Cas-r County, Texas, this 25 day of July, 1935.
“(Signed) W. M. Hall,
“Party of first part.
“John'D. O’Mara,
“Party of second part.
“We accept the deposit in escrow as set out in the foregoing and agree to be governed thereby.
“Rufus J. Jones, “Escrow Agent.”

Attached to the contract were the three deeds referred to therein.

This contract was prepared by O’Mara, and there is no allegation of fraud, accident or mistake which would authorize the admission of parol evidence to alter, vary or contradict the terms thereof.

The plaintiff alleged “that contemporaneous with their said escrow agreement that upon the suggestion of defendant that L. L. Harper, of Linden, Texas, an abstracter of land titles in Cass County, Texas, knew that the title of defendant in and to said land was good and merchantable, and that he could get such an approval of said title by a certificate from the said L. L. Harper, it was further agreed, orally, by and between plaintiff and defendant, that if the said Mr.- L. L. Harper would certify such title to be good, then that plaintiff would accept such approval by certificate of the said L. L. Harper, which said certificate was to be provided by the said W. M. Hall within five days from the date of said mineral conveyances and escrow agreement.”

The contract provides that $20,000 was placed with Mr. Jones, the depository of the escrow agreement, which sum was to be paid to Hall if the title to the land was good and merchantable, it being plaintiff’s duty to have the title passed upon by a competent attorney. The evidence shows no money was so deposited, but that plaintiff placed with Jones his draft upon himself for $20,000, which plaintiff testified Jones and defendant agreed to accept.

The testimony also shows plaintiff did not have the title passed upon by an attorney, but according to his evidence it was agreed L. L. Harper, an abstracter, should pass on the title. Harper declined to pass on the title and so advised Hall on July 30, 1935 by letter and suggested plaintiff should obtain an abstract and have the title examined by his attorney.

In Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 626, 118 A.L.R. 1505, Judge Smedley said:

“It is our opinion that such oral modification of the contract is prohibited by the statute of frauds, article 3995, Revised Civil Statutes of 1925. The rule is that parties to a written contract coming within the provisions of the statute of frauds may not by mere oral agreement alter one or more of the terms thereof and thus make a new contract resting partly in writing and partly in parol, the reason for the rule being that, when such alteration is made, part of the contract has to be proven by parol evidence, and the contract is thus exposed to all the evils which the statute was intended .to remedy. 27 C.J. pp. 327, 328, § 416; 25 R.C.L. p. 708, § 352; Kistler v. Latham, Tex.Com.App., 255 S.W. 983, 985; Adams v. Hughes, Tex.Civ.App., 140 S.W. 1163, application for writ of error refused; Ickert v. Minor, Tex.Civ.App., 22 S.W.2d 741; Fleming v. Todd, Tex.Civ.App., 42 S.W.2d 123. * * *

“The requirement for rearrangement of the notes clearly contemplated, to make it regular and fully effective, the execution of a written instrument extending the notes and lien in compliance with articles 5520 to 5523 of the Revised Civil Statutes of 1925. Such consideration cannot be modified by subsequent parol agreement. Kistler v. Latham, Tex.Com.App., 255 S.W. 983, 985; Schofield v. Pyron, Tex.Civ.App., 257 S.W. 350, application for writ of error refused; Epstein v. D. & A. Oppenheimer, Tex.Civ.App., 94 S.W.2d 779; Home Investment Co. v. Fidelity Petroleum Co., Tex.Civ.App., 249 S.W. 1109, application for writ of error refused.”

The evidence of plaintiff to the effect that it was agreed the draft could be deposited with the depository agent Jones instead of cash, and that it was also agreed the abstracter Harper should pass upon the title instead of an attorney, violates the parol evidence rule. Furthermore, under the ruling of Judge Smedley, above quoted, it is not permissible to thus alter by parol agreement the terms of a written contract to convey land and enforce performance thereof because such altered contract rests partly in parol and enforcement thereof forbidden by the statute of frauds. Art. 3995, R.S.

Plaintiff having failed to comply with two of the obligations imposed upon him by the written contract, he could not successfully maintain this suit. The verdict against him was properly instructed.

Affirmed.


author: BOND, Chief Justice.

text:
    BOZEMAN v. ARLINGTON HEIGHTS SANITARIUM.
    No. 12779.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 21, 1939.
    Rehearing Denied Nov. 18, 1939.
    Levy & Evans, of Fort Worth, for plaintiff in error.
    Crane & Crane, of Dallas, and R. H. Piland, of Fort Worth, for defendant in error.
   BOND, Chief Justice.

This suit was instituted in a district court of Dallas County by Arlington Heights Sanitarium, a corporation, against Irene Judd Bozeman, individually and as independent executrix of the estate of James D. Bozeman, deceased, and Carl Smith, Sheriff of Tarrant County, Texas, in the form of a bill of review to set aside a judgment by default, rendered in the same court in a prior suit; and to restrain a sale of property belonging to the Sanitarium under an execution then in the hands of the sheriff.

The petition in the instant case shows a meritorious defense to the.prior suit, sufficient to set aside the judgment, if same was available in this action. We consider that this appeal hinges upon the service of citation had in the prior suit, to confer jurisdiction upon the trial' court. If the court did not have jurisdiction of defendant. because of a lack of proper service on it, the judgment was void and subject to be vacated in this action; otherwise, if service was complete, the defense urged would not be available.

The matters involved herein resulted from the following facts: On June 7, 1935, Irene Judd Bozeman filed, in the district court of Dallas County, a suit against Arlington Heights Sanitarium, to recover upon certain indebtedness alleged to be due her on account of services rendered the corporation by her deceased husband. Citation was duly issued, addressed to Tar-rant County, requiring the defendant therein, Arlington Heights Sanitarium, a corporation, to appear and answer in the suit; and, in due time, the citation was placed in the hands of one Ike Boyd, deputy constable of precinct No. 1 of Tarrant County, who made the following return thereon: “Sheriff’s Return. Came to hand on the 10th day of June 1935 at 11 o’clock, A. M. by leaving a true copy of this writ on the desk of Julia Jackson Cox, at the principal office in Fort Worth, Texas, during office hours, she being the Manager and Agent in charge of Arlington Heights Sanitarium, a corporation, the within named defendants, together with a certified copy of plaintiff’s original petition. John F. Shaw, Constable, Pre. 1, Tarrant County, by Ike Boyd Deputy.”

On July 9, 1935, the cause coming on regularly for trial, the defendant having made no appearance, judgment by default was rendered for plaintiff and against defendant, in the sum of $3,435.75, together with interest and costs of suit. On January 28, 1936, a writ of execution was issued on the judgment and placed in the hands of the sheriff of Tarrant County, who levied execution on real estate in Tar-rant County, belonging to the Sanitarium, and advertised the same for sale. This suit was thereafter filed.

As stated above, the primary question before this Court is the force and effect that can be given to the action of the officer in serving the citation by leaving a true copy of the writ at the place indicated in the sheriff’s return. The contention is that the office was not the principal office of the corporation, that Julia Jackson Cox was not the manager and agent in charge of its property, and that, without notice of the pendency of the suit or the judgment rendered, the attempted service, in the manner alleged, conferred no jurisdiction on the court to render judgment.

The undisputed evidence is that, at the time the attempted service was made] the Arlington Heights Sanitarium had ceased to exercise its charter business, was not using the premises where the copy of the writ was left, and that it had no manager or agent on the premises. The record shows, without dispute, that the corporation was chartered under the laws of this State, had a designated corps, of officers, and a place of business in the City of Fort Worth, Texas. It was a sanitarium, chartered for the treatment of mental and nervous diseases, had two or more large brick buildings, properly furnished, and, in one, maintained offices fully equipped with desk, files, books, medicines, etc. On March 15, 1935, its President, Dr. Bruce Allison, then manager in charge of corporate affairs, tendered his resignation, closed the sanitarium, and turned its affairs over entirely to his brother, Dr. Wilmer Allison, who maintained offices in the Medical Arts Building, located in another part of Fort Worth. The office in the sanitarium, formerly used by the corporation, was never dismantled, but on the day the citation was left at the sanitarium, no business of the corporation was transacted there, and none had been since the closing of the sanitarium in March next preceding. Dr. Wilmer Allison, Vice-President and then General Manager of the corporation, after closing the sanitarium, moved the books and accounts to his own office in the Medical Arts Building, and thereafter transacted all business of the corporation at that place. The record shows affirmatively that at the time the citation was left at the sanitarium, Julia Jackson Cox and her sister, Bessie Jackson, trained nurses, were occupants of the sanitarium buildings, by permission of the corporation, taking care of a number of patients of their own, — an enterprise in which the corporation had no interest. Mrs. Bozeman lived on the premises of the sanitarium and was fully cognizant of* the facts that the corporation had ceased to function as a sanitarium, that Dr. Bruce Allison, former Manager, had resigned and moved to the State of Colorado, and that Dr. Wilmer Allison was in charge of the corporate affairs.

It is a cardinal principle of our jurisprudence that no person shall be concluded by a judgment of a court, either in respect of his person or property, unless he has had an opportunity to be heard. In order for the court to have jurisdiction to proceed to judgment in an action, citation must have been issued and served on the defendant in one of the ways authorized by law, unless he has voluntarily appeared, or accepted or waived process, or unless notice is otherwise dispensed with. In suits against any incorporated company, or joint stock association, citation may be served upon the president, vice-president, secretary, cashier, assistant cashier/ or treasurer of such company or association, or upon the local agent of such company or association in the county where the suit is brought, or by leaving a copy of the same at the principal office of such company, during office hours. Art. 2029, R.S., Vernon’s Ann.Civ.St. art. 2029. The object of a citation served in the way authorized by law is, to give to the court in which a petition has been filed jurisdiction over the person of the defendant, and to notify the defendant of the suit brought against him. It is for the sole benefit of the defendant, in order that he may " have an opportunity to be heard—to have his day in court.

Alternate provisions of the statute authorizing service of citation in a civil suit, on an incorporated company or joint .stock association, by leaving a copy of the writ at the principal office of such company during office hours, contemplate that the company or association, its officers or agents,, would, in the ordinary course of events, find the writ, or would legally be charged with failure to do so. So, when a citation has been served on defendant, by leaving a copy of the writ at a time or place authorized by statute, but the plaintiff knew the defendant would not thereby be advised thereof, or, when the writ was left at a place not within the legal contemplation of the law, and not known to defendant until the final disposition of the case, the purpose of the law is obviously defeated.

The principal office of a corporation or association, within the clear purview of the statute authorizing service of citation by leaving a copy of the writ at its principal office during office hours, is the place where the principal affairs, business and otherwise of the company are transacted, and where the officers and agents of the company are expected to be in the performance of their duties for the company during office hours. Where the company has no principal office, has ceased to do business, and has abandoned the place where its principal affairs and business had theretofore been transacted, and its officers and agents perform no service for th e company at the place where the writ was left, no legal presumption can arise that the defendant had notice of the suit. The Arlington Heights Sanitarium, while still a corporate entity, had ceased to exercise its corporate purposes, had closed its sanitarium and offices therein for the transaction of its affairs, and its officers and agents were no longer employed or engaged in the discharge of any duty for the corporation, at the time and place where the service was attempted.

Article 2029, R.S., providing for service of citation on a corporation by leaving a copy in the “principal office of the company during office hours”, clearly contemplates that the corporation is a legal entity, and actively engaged in its affairs at the so-called “place of business”, so that, if a citation were left there, it would, in all reasonable probability, be called to the notice of those in authority; and did not mean a place which had once been used by the corporation as its principal office, permanently abandoned and in disuse for several months. Under the spirit of the statute, the place must be such that the defendant, in the ordinary use thereof, wbuld probably find the writ or be advised of the existence of the suit. Certainly the Legislature did not contemplate that, by leaving a copy of the writ at a place, known by plaintiff to have been abandoned,—the sanitarium closed, the books, accounts and affairs of the corporation removed to another location—the ' defendant would learn or be charged with knowledge that a suit had been brought against it. Under such circumstances, no valid service was ever had on the defendant, the defendant had a meritorious defense, the account in suit being barred by limitation; it had no notice of the cause of action until long after the judgment had been entered therein; and, on learning of the entry of such judgment, moved promptly to set same aside. Thus, the trial judge, recognizing the probative force of the undisputed disclosures and, notwithstanding the findings of the jury, that the place where the citation was left by the officer was the principal office of the corporation at that time, and that neither Mrs. Boze-man nor her attorneys were guilty of any fraud or concealment in the attempted service, to deprive Arlington Heights Sanitarium of the right to appear and defend said suit, granted defendant in error’s motion for judgment. We are in accord with the holding of the trial court; accordingly, the judgment is affirmed.

Affirmed.


author: BLAIR, Justice.

text:
    LANDRUM et al. v. CENTENNIAL RURAL HIGH SCHOOL DIST. NO. 2 et al.
    No. 8953.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1939.
    Rehearing Denied Nov. 29, 1939.

      E. M. Critz, of Coleman, for appellants.
    W. Marcus Weatherred, of Coleman, for appellees.
   BLAIR, Justice.

This is an election contest and was instituted to test the validity of bonds voted to erect a school house in the Centennial Rural High School District in Coleman County.

No written notice of the intention to contest the election and no written statement of the grounds of contest were served upon the school district or any of its trustees within 30 days after the return day of such election, as required by Art. 3042, R. S.1925, and the trial court dismissed the cause for want of jurisdiction. The election was held, the votes cast and counted, and the official results declared on March 18, 1939. This contest was filed April 5, 1939, and citation was served on three of the trustees April 18, 1939, and on the remainder, including the president of the board of trustees, on April 19, 1939; and if such service be regarded, which the authorities hold that it cannot be, as notice of intention to contest, then the trustees and the district itself were served with same more than 30 days after the return date of said election, on March 18, 1939.

The rule of law applicable is well stated in 16 Tex.Jur., § 123, p. 157, as follows :

“The notice of intention and the statement of grounds of contest must be served within thirty days after the return day of election. By ‘return day’ is meant the day on which the votes cast are counted and the official result is declared. The statute in this respect is mandatory and cannot be waived. And, unless such notice and statement are served within the prescribed time, the court has no jurisdiction to investigate the validity or effect of the election, or to entertain the. contest.”

• Appellants, the contestants, contend, however, that: (1) because the contestants’ petition came into the hands of the trustees of the school district and their attorney within 23 days after the date of the election; and (2) because the attorney for contestees secured a copy of the petition and filed an answer for contestees within 30 days after the return day of the election, and appeared in court and demanded trial of the cause, the contestees thereby waived notice of intention to contest and a written statement of the grounds of contest.

The rule is settled that the statute requiring both notice of contest and statement of grounds of contest of an election is mandatory and jurisdictional, and that no other service than that specified will suffice to give the court jurisdiction to entertain the contest or suit; and being jurisdictional cannot be waived. The rule is likewise settled that the filing of an answer by contestees does not amount to a waiver of the notice of intention to contest 'and statement of grounds of contest on contestees within the time prescribed by the statute. 16 Tex.Jur., §§ 121, 122, and 123, pp. 151-158, and cases there cited. See particularly Bahn v. Savage, Tex.Civ.App., 120 S.W.2d 644; Hooker v. Foster, 117 Tex. 237, 1 S.W.2d 276; Treaccar v. Galveston, Tex.Civ.App., 28 S.W.2d 276; Norton v. Alexander, 28 Tex.Civ.App. 466, 67 S.W. 787; Thurston v. Thomas, Tex.Civ.App., 7 S.W.2d 105; Rister v. Plowman, Tex.Civ.App., 98 S.W.2d 264; Barker v. Wilson, Tex.Civ.App., 205 S.W. 543; Garitty v. Halbert, Tex.Civ.App., 235 S.W. 231. The mere fact that the attorney for the trustees, or the trustees obtained a Copy of the petition setting forth the grounds of contest will not suffice as written notice of contestants’ notice of their intention to contest the election. Barker v. Wilson, supra. In the instant case, contestants neither delivered contestees a copy of their petition setting forth the grounds of contest, nor did they give contestees any written notice of their intention to contest the election within 30 days after the result of the election was declared.

The election was ordered by the trustees of the said district, and was held, the returns canvassed, the results declared and certified in accordance with the law governing bond elections held in independent school districts. Appellants, the contestants, contend that the Act of November 3, 1937, being Chap. 40, Acts 45th Leg., Second Called Session, p. 1923, Art. 29221, R.S.1925, Vernon’s Ann.Civ.St. art. 29221, provides that the bond election shall be held as in common school districts; and that the county judge must order the election and the Commissioners’ Court must canvass the returns and declare the results. The trial court held that said Act of November 3, 1937, was unconstitutional and void because of a defective caption; and further held that the Acts of 1927, 40th Leg., First Called Session, p. 206 (Art. 29221, appearing in R.S. of 192’5, as amended by Acts of 1927), provide that the election should be held in accordance with the law governing bond elections in independent school districts. We sustain the action of the trial court.

The rural high school act was first passed in 1925, c. 59; and Sec. 12 was placed in the R.S. of 1925 as Art. 29221 and provides that rural high school districts may vote bonds in accordance with the laws governing common school districts. By the 1927 amendment, most of the provisions of the Acts of 1925 were amended ; and Art. 29221, appearing in R.S. of. 1925, was amended so as to provide that bond elections in rural high school districts should be held in accordance with the laws governing independent school districts. Then came the Act of 1937, supra, which in bold type was entitled: “Forbidding Appointment Of Tax Officials In School Districts In Certain Counties.” And the entire caption read as follows:

“An Act amending Section 12 of Chapter 59, of the Acts of the Thirty-ninth Legislature, so as to provide that in certain counties having a population according to the last preceding Federal Census of not less than eight thousand, five hundred (8,-500) and not’ more than eight thousand, seven hundred (8,700) rural high school districts formed by the grouping of common school districts shall not have the authority to appoint a tax assessor, board of equalization, nor tax collector; and declaring an emergency.”

In the main the body of the Act was in the language of Sec. 12 (Art. 2922¿, as appearing in the R.S. of 1925), but left out some of the provisions with reference to previous taxes of the district, and was made to read as follows, the language in parentheses showing omitted part:

“And which election shall be held in accordance with the law now governing such elections in common school districts (provided that the local taxes previously authorized by a district), or districts included in a rural high school district or annexed to a common or independent school district, as provided for herein, shall be continued in force until such time as a uniform district or said common or independent district as enlarged by the annexation of the said common school districts thereto.”

From the statement of the purpose of the Act and its caption it clearly appears that the Act was intended to thereafter only forbid the appointment of a special tax assessor, ' board of equalization, and tax collector in certain counties, and to require that such matters should be attended to by -the county tax collector as in common school districts. To accomplish this sole purpose the author tried to copy in the body of the Act Art. 29221, appearing in the R.S.1925, as originally passed, and notwithstanding the fact that said article had been amended by the Acts of 1927. Other than to do away with special assessors, etc., in .counties having a population of from 8500 to 8700, the caption made no mention of any other amendment of Sec. 12. Coleman County has a greater population than 8700. The amendment is therefore nothing more than an amenda-tory act, which must he limited to the purpose or subject stated in its title or caption; and as to any subject or matter included in the body but not mentioned in the caption, the Act is void under Sec. 3'5 of Art. 3 of the Constitution, Vernon’s Ann. St., which reads, in part, as follows:

“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.” ’ '

Since the title or caption of the 1937 Act declared that the legislature intended to amend Sec. 12 of the 192S Act so as to prohibit special tax assessors, equalization boards, and tax collectors in certain counties, it cannot affect counties not included, and is invalid as not embracing subject in its title, so far as the body of the Act changed the method of holding school bond elections from the method prescribed in the 1927 Act. No rule is better established than the one that where a title or caption of an act specifies the particular field of the amendment, and that it is to cover or state a particular purpose to make a change in a prior statute, the amendment is limited to the making of the specific change designated in its title, and precludes any additional, contrary, or different amendment than that stated in the title. Rutledge v. Atkinson, Tex.Civ.App., 101 S.W.2d 376; Walker v. State, 134 Tex.Cr.R. 500, 116 S.W.2d 1076; Sutherland v. Board of Trustees, Tex.Civ.App., 261 S.W. 489.

Appellants also complain of the action of the Judge of the 35th District Court transferring this cause to the 119th District Court, and of the action of the Judge of the 119th District Court in refusing to re-transfer the cause back to the 35th District Court.

Coleman County has two district courts of concurrent jurisdiction. Appellant filed this suit in the 35th court on April 5, 1939, and issued citation returnable to the September term, 1939. A few days later ap-pellees’ counsel appeared in court and demanded a trial; to which appellants’ counsel replied that he was not ready and required more time to prepare the case for trial. Appellees’ counsel then filed a motion to transfer the cause to the 119th court, which convened before September, 1939; which motion was granted. When the case reached the 119th court, appellants’ counsel filed a motion to retransfer it to the 35th court; which was refused.

The ground of this complaint is that the 35th court in which the case was filed “was without jurisdiction of the cause before the return day of these citations,” returnable September 4, 1939.

The statutes creating these courts fully authorize them to transfer any cause to each other. Contestees had the right to appear and demand a trial before the next term of the court. Waco Hilton Hotel Co. v. Waco Development Co., Tex.Civ.App., 75 S.W.2d 968; Radford v. Radford, Tex.Civ.App., 42 S.W.2d 1060; Hartman v. Byrd, Tex.Civ.App., 47 S.W.2d 659. And since this is a bond election contest and affects the operation of a school district, a speedy disposition should have been made of the cause. Wendover v. Tobin, Tex.Civ.App., 261 S.W. 434.

The judgment of the trial court will be affirmed.

Affirmed.