author: NORVELL, Justice.

text:
    PACK v. DITTLINGER & DARE.
    No. 10634.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied Feb. 14, 1940.
    Miller & Dawson, of Sinton, for appellant.
    B. H. Kirk, of Robstown, for appellee.
   NORVELL, Justice.

Dittlinger and Dare, appellees, brought suit upon a chattel mortgage against appellant, Pack, in the Justice’s Court, Precinct No. S, of Nueces County. Pack resided in Precinct No. 1, San Patricio County, and filed his plea of privilege, which was controverted by appellees, who assert that the case properly comes within the exceptions contained in subdivision 4 of Article 2390, and subdivision 5 of Article 1995, as amended by Acts of Forty-Fourth Legislature, c. 213, § 1, Vernon’s Annotated Revised Civil Statutes of Texas, in that the suit is based upon a contract of writing “providing for a promise of performance at Robstown in Precinct No. 5, Nueces County, Texas.”

The Justice of the Peace of the Robstown precinct overruled the plea of privilege, and upon this point an appeal was taken to the County Court of Nueces County, which also overruled the plea. From that decision, appellant brings the case here.

The appellees rely upon the wording of the chattel mortgage to sustain their position. This instrument is headed: “Retail Chattel Mortgage.” Immediately below and to the right of the heading appear the words: “To Dittlinger & Dare; Town and State: Robstown, Texas.” To the left and opposite the foregoing, the following appears: “Date: Aug. 28, 1937; Mortgagor: Sinton Baker & Cafe; Address: Sinton, Texas.” Below, and following these items, there appears a description of the mortgaged property and the terms of payment. Thereafter appear the following provisions: “Balance due by purchaser payable in 36 equal consecutive monthly installments of $10.81 each, commencing 1 Month(s) from date hereof.”

It is appellees’ contention that the words, “To Dittlinger & Dare; Town and State: Robstown, Texas,” are to be construed as designating the place of the payment of the money secured by the mortgage.

We cannot agree with this contention. The mere designation by name of the mortgagees and statement of the town and state in which they reside cannot be construed as promising performance at Robstown, Texas. Rathburn v. Royal, Tex.Civ.App., 281 S.W. 851; Nichols v. Ben Franklin Bond & Indemnity Corp., Tex.Civ.App., 81 S.W.2d 279.

The judgment will be reversed, and judgment will be here rendered sustaining the plea of privilege and directing the Clerk of the County Court of Nueces County to make up a transcript of all orders made in this cause, certify thereto under the seal of said court, and then transmit same with the original papers in the cause to the Justice’s Court for Precinct No. 1 of San Patricio County, Texas.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    ANDERSON, County Judge, et al. v. BACON et al.
    No. 10682.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1940.
    John R. Shook, W. Pat Camp, and T. H. Ridgeway, all of San Antonio, for appellants.
    Egbert Schweppe and Leonard Brown, both of San Antonio, for appellees.
   SMITH, Chief Justice.

This appeal is from a judgment of a District Court nullifying and setting aside an order of the Commissioners’ Court of Bexar County redistricting justice precincts of said county.

The order assailed was entered in the minutes of the Commissioners’ Court on March 10, 1939, and this suit was instituted and judgment rendered therein in the District Court shortly afterward. On August 18, 1939, after the appeal from said judgment to this Court had been perfected, and pending disposition thereof, the Commissioners’ Court entered its order again redistricting the county into justice precincts, thereby nullifying or repealing the former order, in question in this appeal, and restoring the original status of the affected justice precincts.

In this situation appellees have filed and now present their motion to dismiss this appeal, on the ground that the questions raised herein have become moot. Obviously, the one question, of the validity of the order of March 10, 1939, was indeed rendered moot by the order of August 18, 1939, leaving no live question for adjudication in this Court, or in the trial court either. Our duty is, therefore, not to dismiss the appeal from this Court, but the entire cause from both courts. Tritico v. Texas Liquor Control Board, Tex.Sup., 128 S.W.2d 379; Spencer v. Steele, Tex.Civ.App., 132 S.W.2d 146, and authorities.

Appellants resist the motion to dismiss and show that in January, 1940, the Commissioners’ Court passed and entered a third order on the subject, apparently identical with the order here in question and subsequently superseded, and appellants invoke a decision upon the merits of the appeal, based on this third order passed and entered in this current month. We have no jurisdiction over that order, however, and cannot take cognizance of it.

The only judgment which this ■Court can properly render is one vacating the order appealed from and dismissing the cause from both this Court and the trial court, and that will be done, at the cost of appellants. Appellees’ motion to dismiss the appeal, being inadequate, will itself be dismissed.

The cause is dismissed.


author: BAUGH, Justice.

text:
    MOORE v. HORNE.
    No. 8856.
    Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1940.
    Rehearing Denied Feb. 14, 1940.
    Polk Shelton, John C. Butler, Everett L. Looney, Edward Clark, and Chas. F. Herring, all of Austin, for appellant.
    R. B. Thrasher, of Austin, for appellee.
   BAUGH, Justice.

This appeal presents contest of a will. It is from a judgment of the district court, based upon a special issue verdict of the jury, denying probate of the proffered will of Mrs. Maria Bartl, deceased. Mrs. Meta Moore, named in the instrument involved as the chief beneficiary and independent executrix, was the proponent; and Mrs. Martha Horne, daughter of Mrs. Maria Bartl, deceased, was the contestant. The instrument offered for probate was executed by Mrs. Bartl, who was then 91 years of age, on January 14, 1937; Mrs. Bartl died on December 17, 1937, and the purported will was filed for probate on December 20, 1937. Mrs. Bartl possessed an estate valued at about $12,000. By said instrument she bequeathed to three nieces who resided in Germany the aggregate sum of $2,500; left nothing to an afflicted son, who subsequently died; bequeathed to her daughter, Mrs. Horne, $25, reciting that she was “giving her this small sum because she has deserted and abandoned me in the declining years of my life, when I needed her love and care most, and left me to be cared for and loved and comforted by outsiders”; and devised all the rest of her estate to Mrs. Meta Moore, appellant, who was not related to her.

The grounds of the contest were that Mrs. Bartl did not understand the contents of the instrument which she executed as her last will; that she lacked testamentary capacity at the time she executed it; and that it was the product of undue influence of Mrs. Meta Moore. These three issues were submitted to the jury, all answered in favor of the contestant and against the proponent.

Twenty-eight witnesses testified upon the trial, fourteen for the proponent and fourteen for the contestant. The only contentions made on this appeal are that the findings of the jury on the issues submitted are without support in the evidence or are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and to manifest passion and prejudice of the jury against appellant.

•[1] We have carefully read the entire statement of facts, containing 320 pages. It may be seriously doubted if the evidence was legally sufficient to sustain the finding of lack of testamentary capacity of the testatrix; but it was amply sufficient to sustain that of undue influence exercised by Mrs. Moore over Mrs. Bartl in procuring the execution of the alleged will and in directing the disposition made therein. And for the purposes of this opinion we will assume that Mrs. Bartl possessed testamentary capacity. The sufficiency of the evidence, as a matter of law, to support a finding of undue influence, being the only issue presented, under the rule which has now become elementary, we must look to the evidence most favorable in support of the verdict; and discard that against it.

It is also now settled that testa-' mentary capacity must exist before undue influence over the testator can be exercised. Scott v. Townsend, 106 Tex. 322, 333, 166 S.W. 1138. Evidence of facts and circumstances which, however, would not be sufficient to sustain a ■ finding of undue influence over the mind of a strong, vigorous person in full possession of all of his mental faculties, may be sufficient to sustain, such a finding as to one, though possessing testamentary capacity, who by reason of ■age, feebleness, and approaching senility, has much less power of resistance to such influence; and who because of such age, physical weakness, and infirmities of body and mind is more susceptible to control by the will of another. Hart v. Hart, Tex.Civ.App., 110 S.W. 91; Brown v. Pridgen, 56 Tex. 124.

Undue influence can seldom if ever be established by direct and positive proof. It is usually shown by circumstances. See Russell v. Boyles, Tex.Civ.App., 29 S.W.2d 891. From these, if sufficient to raise the issue, the jury must usually draw its own reasonable conclusions. Taking the evidence in the instant case most favorably in support of the verdict, and disregarding conflicting testimony, it was sufficient to show: That Mrs. Bartl, 91 years of age at the time she executed the purported will, was then very childish and feeble; that she was unable to read, write or speak the English language; that she had been living with Mrs. Meta Moore in the latter’s home, though she owned one of her own, for six months or more prior to the execution of said instrument; that Mrs. Moore had caused whatever estrangement there was between her and her daughter, Mrs. Horne; that Mrs. Moore had for several years continuously been with her and influenced her in her business transactions. The evidence also showed Mrs. Moore had on December 17, 1936, filed an application in the county court to have Ed Doelitsch, son of Mrs. Bartl, adjudged insane and to be appointed guardian of his person and estate; that Mrs. Horne contested such appointment, which contest angered both Mrs. Bartl and Mrs. Moore; that Mrs. Moore habitually signed checks for Mrs. Bartl, including one to herself for $300, dated October 1, 1936; that in January, 1937, Mrs. Bartl recovered 157 acres of land in Caldwell County, which she had sold in 1924, because of the failure of the purchaser to pay the vendor’s lien notes against it, and immediately conveyed it, apparently without consideration, to Mrs. Moore, though it constituted her chief, if not only, source of revenue. It could also clearly be inferred by the jury that Mrs. Moore in reality directed this transaction; that Mrs. Moore called the attorney, who wrote said purported will, to her home on the morning of January 14, 1937, and was present when said attorney obtained the data for preparing same, and if, as several witnesses testified, Mrs. Bartl could not speak English, and since said attorney testified that he could not speak nor understand German, the jury could properly infer that Mrs. Moore, who spoke German, acted as interpreter in giving the attorney the information for drawing the will. When said attorney returned in the afternoon to Mrs. Moore’s home with the will prepared, Mrs. Moore was again present when it was signed; that said attorney then had with him the Deputy County Clerk of Travis County, who spoke German fluently, to interpret and explain the contents of said will to Mrs. Bartl, and testified that he did so, because he anticipated trouble when the will should be offered for probate. Said attorney had a copy of said will in his office, if not continuously, at least from shortly after it was executed up to the death of Mrs. Bartl on December 17, 1937. This fact, as well as the contents of said will, were well known to Mrs. Moore. The execution of said will of January 14, 1937, was kept secret from both Mrs. Horne and Ed Doelitsch, her only living children. On December 20, 1937, only three days after the death of Mrs. Bartl, Mrs. Moore, without going to Lockhart to procure the original of said will in the bank there, offered the copy for probate. Mrs. Moore was in no way related to Mrs. Bartl. Many other detailed incidents were. shown by the testimony tending to indicate control and direction exercised by Mrs. Moore over the conduct, acts and attitude of Mrs. Bartl not only towards Mrs. Horne, her daughter, but towards others with whom she had business relations; but we deem it unnecessary to prolong this opinion by detailing them here.

No useful purpose would be served by a citation and discussion of the authorities bearing upon the issues here involved. The cases are numerous and the governing rules well established. We refer to 44 Tex.Jur., §§ 20 to 25, pps. 562-566, under which are cited numerous authorities, and a full discussion of the question of undue influence may be found. Application of such governing rules to varied fact situations is also treated in 44 Tex.Jur., § 55 et seq., p. 597.

Of course, the burden to show that undue influence was exercised by Mrs. Moore over the will of the testatrix was upon the contestant. No complaint is made that the burden was not properly placed in the submission of that issue to the jury. The controlling question before us is whether there was sufficient competent evidence to sustain the jury’s finding. From what has been said above, it is manifest to our minds that there was, and the contention to the contrary is resolved against the appellant.

The judgment of the trial court will therefore be affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

Appellant complains of certain statements in our opinion as constituting fact findings by us. not supported by the testimony; particularly with reference to the length of time Mrs. Bartl lived with Mrs. Moore before the will was executed; and that it was executed in Mrs. Moore’s home. We did not intend such statements as findings of fact; but merely that from the evidence the jury was authorized to infer that these facts and circumstances existed as affording an opportunity to exert such undue influence. We think it is unimportant whether, under the circumstances, the purported will was actually signed by Mrs. Bartl in her own home, or in the home of Mrs. Moore; it not being controverted that for several months prior thereto Mrs. Moore had kept Mrs. Bartl in the Moore home, and was present both when the information was given to the scrivener, and when the will was signed.

Appellant’s motion for rehearing is therefore overruled.

Motion overruled.


author: GALLAGHER, Chief Justice.

text:
    HEDGPETH v. GARTMAN et al.
    No. 2148.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1939.
    Rehearing Denied Feb. 15, 1940.
    For opinion of Supreme Court, see 135 •S.W.2d 86.
    Allen & Allen, of Hamilton, for plaintiff in error.
    Eidson & Gordon, of Hamilton, for defendants in error.
   GALLAGHER, Chief Justice.

This suit was instituted by appellant, Tom Hedgpeth, in the district court of Hamilton county to recover of appellees, L. J. Gartman and J. Garvey, damages for the publication of an alleged libelous article concerning appellant. App'ellant alleged that said article was published for three consecutive weeks in the Hamilton County News, a newspaper published in said county. Said article was as follows:

“Notice to the Public
“This is to notify the public that Tom Hedgpeth is no longer connected with J. Garvey Home Appliance Store. Pay all money due on merchandise purchased from this company to L. J. Gartman or J. Garvey.
“J. Garvey Home Appliance Store.”

Appellant alleged, in substance, that ap-pellees Gartman and Garvey were engaged in the business of selling refrigerators and other patented machinery for use in homes, and were conducting said business under the trade name of Garvey Home Appliance Store; that for several months he had been employed by said appellees to sell refrigerators and had not been discharged at the time of the first publication of said notice, nor had he at that time been advised of any dissatisfaction with his services; that in fact no money owing to ap-pellees had ever been paid to anyone but them and that it had never been his duty to collect nor had he theretofore collected or attempted to collect any money due and owing to them; that appellees caused the publication of said notice; that by the language used therein they meant and intended to mean and to charge that appellant was unreliable and untrustworthy as an employee and dishonest to the extent that he would solicit the payment of money due appellees or receive same if tendered to him after his employment had ceased and would not account therefor to them; that such implied accusation was falsely and maliciously made and tended to impeach his honesty, integrity and reputation. Appellant further alleged that as a result of the publication of said notice he had been damaged in his good name and reputation, had suffered and would continue to suffer intense, mental pain, anguish, humiliation, mortification and financial loss and injury, to his damage in the sum of '$5,000.

Appellees presented a general demurrer to appellant’s petition, which was sustained by the court. Appellant declined to amend and prosecuted an appeal to this court.

Appellant’s allegations, when assailed by general demurrer, must be accepted as true. Appellees, in their brief, present each of the two sentences contained in said publication separately and insist that neither of them tends to impeach appellant’s honesty and integrity or to affect his good name or reputation, and that said publication was not therefore libelous. The general rule of law in this state is that in determining whether a writing or publication' is defamatory in character, the language used therein must be considered as a whole and in the light of all pertinent facts and circumstances alleged in connection therewith. R.S., Art. 5430; 27 Tex.Jur., p. 610, sec. 14; Clark v. Bohms, Tex.Civ.App., 37. S.W. 347, pars. 1 to 3; Moore v. Leverett, Tex.Com.App., 52 S. W.2d 252, 255, pars.. 6 et seq, and authorities there cited; Great Atlantic & Pacific Tea Co. v. Harris, Tex.Civ.App., 75 S.W.2d 974, par. 1; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, pars. 1 to 4. When both sentences of said publication are considered together in the light of appellant’s allegations by way of inducement and innuendo, it appears that they are intimately connected, and we think it might reasonably be inferred by a. jury trying the case that the publication was based on the severance of business relations between appellant and appellees and a supposed necessity on appellees’ part resulting therefrom to warn the public against paying their outstanding indebtedness to appellant. It is a well known fact that equivocal language is often employed to convey a sinister meaning in order that the party or parties using the same may claim an innocent purpose if their motive is questioned. Where language can have an innocent or a defamatory meaning, and the plaintiff, by inducement and innuendo, alleges extraneous facts from which it may be reasonably inferred that a defamatory meaning was intended, the issue of a prop-. er construction of such language becomes one of fact and a general demurrer will-not lie. Defendant’s ’recourse in such an event is by trial of the facts. 27 Tex.Jur., pp. 734 et seq., secs. 77 and 78; Moore v. Leverett, Tex.Com.App., 52 S.W.2d 252, 255, pars. 9 and 10, and authorities there cited; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 878, par. 9; Great Atlantic & Pacific Tea Co. v. Harris, Tex. Civ.App., 75 S.W.2d 974, 975, pars. 1 and 2. We'think such is the situation in this case.

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


author: GRAVES, Justice.

text:
    KELLY et al. v. LOBIT et al.
    No. 11022.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1940.

      Franklin & Blankenbecker, L. E. Blan-kenbecker, and A. D. Dyess, all of Houston, for relators.
    ' Stewart & DeLange and Albert J. De-Lange, all of Houston, and Byron Eco-nomidy, of Galveston, for respondents.
   GRAVES, Justice.

This is a recrudescence of essentially the same application to this court for a writ of prohibition that was by it dismissed, without prejudice, for the want of necessary parties, on December 7, 1939, through judgment' and opinion in No. 10,875, Kelly et al. v. Lobit et al., Tex.Civ.App., reported in 134 S.W.2d 428; the only material difference between the two applications being that, in lieu of those named in the former opinion, the parties to the present proceeding, are these: “Donald S. Kelly, Individually and as Administrator of the Estate of Myrtle E. Lobit Kelly, deceased, and as Guardian of the Estate of Joseph E. Lobit, Jr., a minor, and said Joseph E. Lobit, Jr., all of Harris County, Texas, Relators; and Hon. Charles G. Dibfell, in his official capacity as Judge of the 56th District Court of Galveston County, Texas, who resides in Galveston County, Texas, and Louis G. Lobit, Bertha Lobit Wilson, a feme sole, and Edgar Lobit, residents of Harris County, Texas, and Paul Lobit, a resident of Galveston County, Texas, Respondents.”

Since both the gist and objective of the proceeding was fully given before in the cited opinion, it becomes unnecessary to repeat it here; indeed, as indicated, there are no material differences between the two applications, other than the addition of the new parties to the present one, the cause of action declared upon, as well as the considerations and authorities depended on for the support thereof, being in all substantial respects identical.

As it did before, this tribunal has given painstaking consideration to the matter, including the hearing of oral arguments from both sides thereon, with the result that — not being clearly of opinion, from the facts stated in the petition, along with the arguments and authorities adduced in support thereof, that the writ should be awarded, it will be refused, upon these among other considerations:

(1) Since the ultimate objective is to harness' the discretion of the 56th District Court, at least to the extent of nullifying its power to try the partition-suit at Galveston until the accounting-suit in the 113th District Court at Houston has been'1 first tried, on the theory that the latter’s jurisdiction supersedes that of the former to go on with the land-partition hearing at Galveston, because it was filed first, this court is not satisfied that such dominating prior and exclusive jurisdiction over the land-partition proceedings in Galveston County exists in the Harris County cause;

(2) The two suits in the different counties are obviously not identical, either as to subject-matter, parties, or things cognizable; this, for the reason that No. 54,277 at Galveston has to do solely with the partition of particular tracts of land located in that county, with all necessary parties in a partition-proceeding in that court; whereas, that in No. 245,873, in Harris County is essentially different, distinct, and still is not between the same parties, Bertha Lobit Wilson and Edgar Lobit, both being joint-owners with the others of the Galveston County lands and named with them in the partition-suit there, are not made parties in the Harris County suit; further, the controlling cause of action declared upon in the Harris County suit is against Louis Lobit and Paul Lobit for an accounting by them, either as executors or resulting trustees of their father’s estate, together with a contingent or subsidiary declaration of a right to recover from them certain interests therein. Holcombe v. Hanbury, Tex.Civ.App., 63 S.W.2d 735;

(3) It now appears undisputedly in this record that the 113th District Court in No. 246,873 has heretofore sustained a plea of privilege of defendant Paul Lobit therein to be sued on such claims in Galveston County, where he resides; that the plaintiffs in that suit have appealed from such order pursuant to R.S. Article 2008 to this court, where the matter is now pending, but have failed to exercise their privilege under that statute and this Court’s rule No. XI(a), to move for advancement of a hearing thereon here, consequently such appeal has not been reached for disposition by this court;

This record also discloses these two prior procedures to have been taken heretofore in relation to features of the cause of action so declared upon by such plaintiffs in the Harris County suit, No. 246,-873, towit:

First, they formerly filed an action in the probate court of Galveston County seeking to review the acts of Louis and Paul Lobit as executors of their father’s estate, which was determined adversely to them by that court, and they did not appeal from such determination within the time provided by law; R.S. Article 1995, subdivision 18.

Second, they later appeared in the Galveston County suit, No. 54,277, and presented pleas to the jurisdiction and in abatement of the matters therein involved, on the ground that the jurisdiction to determine them had already been acquired by the district court of Harris County in its No. 246,873, which pleas having been overruled, were likewise not prosecuted further through an appeal from that order; Prince v. Miller, 123 Tex. 118, 69 S.W.2d 52; City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663.

(5) In the circumstances, all the lands involved therein lying in Galveston County, all the joint-owners being before the court there, and no other res being involved, under the statute covering such partition proceedings, R.S. Article 6086, it is not perceived why the relators here cannot get the same relief from that court —in so far as affects these particular tracts of land only — that they could in their Harris County suit, the jurisdiction to determine their interests, whatever they may be, and as affected by the matters they declare upon in Harris County, appearing to be within the power of the Galveston Court to determine; wherefore, it is not clear as to just how relators would suf'fer any loss of right or privilege, or find any lack of power to determine them, as to those tracts of land, by so asserting them in the Galveston County District Court. Stanolind Oil & Gas Co. v. Edgar, Tex.Civ.App., 98 S.W.2d 222, error dismissed.

(6) Neither is it perceived that the mere prior filing of the suit for accounting in Harris County has, perforce, conferred upon that court enveloping jurisdiction over all the parties and the land in Galveston County, to the extent of ousting completely the statutory-power under R.S. Articles 1995, subdivision 13, and 6086, supra, of the district court where the land lies, with all parties interested therein before it, to determine their particular partition-rights and equities in that land only.

(7) These being the inhering conditions here, it is concluded that the issuance of the extraordinary writ of prohibition in such instance would constitute an action resting, at least, upon a doubtful construction, which is contrary to established authority and precedent; 33 Tex.Jur., “Prohibition”, page 92S, par. 4, and cited authorities.

Writ refused.


text:
    WATSON v. TAMEZ et ux.
    No. 10675.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Cecil R. Fulton, of McAllen, for appellant.
    No attorney represented appellees.
   NORVELL, Justice.

This is an action of trespass to try title brought by appellant, Watson, against Claudio Ta'mez and wife, appellees, for the recovery of lot 3, block 8, of the City of Donna, in Hidalgo County, and, in the alternative, seeking judgment for the amount of money paid by him át a sale of the property resulting from the foreclosure of a tax lien against the property. Appellees filed a plea .of not guilty and the case was tried by the court without a jury. Judgment was rendered for appellees and Watson has appealed.

No findings of fact or conclusions of law were requested of the trial court, and ap-pellees filed no brief in this court.

Appellant first contends that under the evidence he was entitled to judgment for the real property involved.

A common source of title was established and appellant introduced in evidence a judgment rendered against appellee, Claudio Tamez, foreclosing a tax lien against the property, as well as a sheriff’s deed purporting to convey the property to appellant. The order of sale was not introduced but a predicate was laid for the proof of the contents thereof by secondary evidence, as the district clerk testified that the original papers, including the order of sale in the tax lien foreclosure case, had been lost and had not been found after diligent search. It appears that the tax judgment was rendered in 1929, and the clerk also testified that during that year “no order of sale or execution docket was ever kept of the tax suits.”

Appellant testified that at the time of the tax sale in question the sheriff had an order of sale in his hand, which he read. The only testimony of appellant that can be considered as relating, even remotely, ■to the contents of the order of sale was the following question and answer: “Q. ■ Was that an order of sale commanding him (the sheriff) to sell this piece of property in question? A. It was; yes, sir.”

The answer of the witness was clearly a conclusion of law, without probative force, even though no objection was made thereto. Webb v. Reynolds, Tex. Com.App., 207 S.W. 914.

Appellant concedes that it was incumbent upon him to prove “the order of sale or existence of the sheriff’s authority to sell.” Richards v. Rule, Tex. Com.App., 207 S.W. 912. This burden must be met by the introduction of competent primary or secondary evidence. Mere conclusions will not suffice, and the recitations in the sheriff’s deed are incompetent for the-purpose of showing the authority of the officer making the sale. Richards v. Rule, supra.

The loss of the original papers in the tax foreclosure proceedings probably worked a hardship upon appellant. Considering the lapse of time involved, the production of competent secondary evidence of the contents of the lost order of sale is difficult, if not impossible, in a practical sense. Because of this hardship, we cannot, however, presume that the sheriff was legally authorized to make the tax foreclosure sale here involved. We, therefore, hold that appellant failed to meet the burden of proving his title by competent evidence, and the trial court’s action denying him a recovery of the land involved was correct.

Appellant next contends, in the alternative, that he is entitled to judgment for the amount of money paid by him at the tax sale. In his alternative count appellant pleaded facts which, if true, show a valid tax foreclosure sale, but says, if the court believes he is not entitled to the property, then he is entitled to judgment for the amount of money paid. Obviously, if the sale were valid, appellant is not entitled to the recovery of the money, but would be entitled to the property. If the sale were invalid in certain particulars and under certain circumstances, he might be entitled to a money recovery. That particular question is not before us. However, a finding that the tax sale involved was invalid is necessary to support a money recovery. The appellant by his pleadings in the second count, in effect, left the question of the validity of the tax sale to the determination of the trial court upon its consideration of the trespass to try title count. From what has been said with reference to that count it will be seen that the competent evidence before the court was insufficient to establish a valid tax sale. It was also insufficient to establish the converse, that is, the invalidity of the sale. Appellant’s alternative count therefore falls. The mere fact that a party pays money upon the purchase of property at a tax sale does not entitle him to a recovery of the amount paid, when years later he is unsuccessful in an attempt to establish his title in an action of trespass to try title. American Realty Corporation v. Tinkler, Tex.Civ.App., 107 S.W.2d 627.

The judgment of the trial court is affirmed.


text:
    PEARSALL INDEPENDENT SCHOOL DIST. v. WIDNER et al.
    No. 10779.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    P. M. Tillotson, of Pearsall, for appellant.
    Woodrow Curtis, of Pearsall, for appel-lees.
   SMITH, Chief Justice.

Pearsall Independent School District instituted this suit against O. M. Widner and wife to recover taxes alleged to be due by them to the District, and to establish and foreclose a tax lien therefor on certain property owned by the Widners, for the years 1928 through 1938. The District also impleaded as defendants the City of Pearsall, the County of Frio, and the State of Texas, requiring those entities to appear and answer and assert any claims, if any they have, for delinquent taxes upon said property, alleged to be situated in the District, City and County involved. Those entities were so impleaded, and duly served with process, in accordance with the provisions of Art. 7345b, Vernon’s Ann.Civ.Stat-utes.

The City of Pearsall appeared and answered, setting up its claim for delinquent taxes' alleged to be due on the property: The State and Frio County also appeared, but, instead of asserting any claims for taxes, moved that they be dismissed from the proceeding, “without prejudice té (their) legal rights and legal remedy.” As grounds for their prayer of dismissal, the State and County, through their representatives, alleged: “That to force and compel the taxing units of the County of Frio and State of Texas to interplead and force a foreclosure of their tax liens at the present time, the said taxing agencies are of the opinion that their legal rights and remedies would be greatly prejudiced, on the grounds that a sale of the foreclosed lien would not work to the best interests of the taxing agencies. That a continued drouth has mar terially affected the value of the property upon which the county and state taxing agencies would foreclose their liens. That delinquent tax suits have heretofore been filed have not worked to the best interests of the taxing agencies. That the cost in said suits have, in the opinion of the taxing agencies, been exorbitant and the said taxing units have been materially damaged because of sand.”

The trial judge granted said motion and dismissed the State and County from the suit, without prejudice, as prayed for, and rendered judgment upon the merits in favor of the School District and City of Pearsall for the taxes found to be due them; ordered foreclosure of their tax liens,, and sale of the taxed property thereunder, and provided that the purchaser at such sale “shall take title free and clear of all liens and claims for taxes * * * except for the lien or claim of the State of Texas and County of Frio.” The District has brought this appeal from that judgment.

The contentions of appellant, the School District, are, in brief, that the State and County were necessary parties to the suit under the provisions of Art. 7345b, supra; that the trial court erred in dismissing the State and County without prejudice, and directing that the property be sold, and the title conveyed to the purchaser, subject to the lien or claim of the State and County.

We quote the pertinent provisions of Art. 7345b (all italics ours) :

■ “Sec. 2. In any suit hereafter brought .by or 'in behalf of any taxing unit as above defined, for delinquent taxes levied against property by any such taxing unit, the plaintiff may implead as parties defendant any or all other taxing units having delinquent tax claims against such property, or any part thereof, and it shall be the duty of each defendant taxing unit, upon being served with citation as provided by law to appear in said cause and file its claim for delinquent taxes against such property, or any part thereof. * * *
“Sec. 3. * * * After citation * * any taxing unit that has been made a party defendant to such suit may by answer or intervention set up and have determined its tax claims without the necessity of further citation or notice to any parties to such suit. As amended Acts 1939, 46th Leg., H. B. # 565, § 1.
“Sec. 4. Each party to such suit shall take notice of, and plead and answer to, all claims and pleadings then on file or thereafter filed in said cause by all other parties therein, and the citation upon each defendant shall so recite. * * *
“Sec. 8. * * * the net proceeds of any sale of such property made under decree of court in said suit to any party other than any such taxing unit shall belong and be distributed to all taxing units which are parties to the suit which by the judgment in said suit have been found to have tax liens against such property, pro rata and in proportion to the amounts of their respective tax liens as established in said judgment, but any excess in the proceeds of sale over and above the amount necessary to defray the costs of suit and sale and other expenses hereinabove made chargeable against -such proceeds, and to fully discharge the judgments against, said property, shall be paid to the parties legally entitled to such excess.
“Sec. 9. If the property be sold to any taxing unit which is a party to the judgment under decree of court in said suit, the title to said property shall be bid in and held by the taxing unit purchasing same for the use and benefit of itself and all other taxing units which are parties to the suit and which have been adjudged in said suit to have tax liens against such property, pro rata and in proportion to the amount of the tax liens in favor of said respective taxing units as established by the judgment in said suit, * * and when such property is sold by the taxing unit purchasing same, the proceeds thereof shall be received by it for account of itself and all other said taxing units adjudged in said suit to have a tax lien against such property, and after paying all costs and expenses, shall be distributed among such taxing units pro rata and in proportion to the amount of their tax liens against such property as established in said judgment. * * *
“The Sheriff shall * * * distribute the [net] balance among the taxing units participating in said original judgment pro rata and in proportion to the amount of their tax liens against such property as established in said judgment.
“Sec. 10. The purchaser of property sold for taxes in such foreclosure suit shall take title free and clear of all liens and claims for taxes against such property delinquent at the time of judgment in said suit to any taxing unit which was a party io said suit or • which had been served with citation in said suit as required by this Act. * • * * "

Article 7345b is of recent enactment, and has not been the subject of construction in any decision coming to our notice, except incidentally in a case by this court, in which Justice Slatton, writing for the court, said that “evidently it was intended [by this Act] to avoid a multiplicity of suits and no doubt to equally protect the interests of the various taxing units involved.” Willacy County Water Control Dist. v. Lewis, Tex.Civ.App., 119 S.W.2d 159, 160. We reiterate that conclusion. It is perfectly obvious that the primary and chief purpose of the act was to prevent multiplicity of suits by providing for the inclusion of all taxing units, and adjudicating the claims of all of them, in any suit for taxes brought by any one or more of said units, to fix accrued tax claims upon given properties. The property involved here was subject to taxation, and presumably was assessed for taxes, by four different taxing units, to-wit: the State, the County, the School District and the City. Under prior statutes each of those units was left to its own time and devices to fix a tax lien upon a particular property, leaving each of the other three units to select the time and means of establishing and enforcing its own tax lien against the property, with the frequent result of the institution and prosecution of four different suits, judgments, executions, sales and conveyances of the taxed property, with all the multiplied proceedings, pyramided costs, confusion of titles, and complicated rights of redemption; whereas, by the enactment of Art. 7345b, the remedies of the four units may and were intended to be enforced in one proceeding, under one adjudication, through foreclosure of one lien at one sale, subject to one redemption. The wisdom of the act is obvious, and its simple provisions ought to be enforced by the courts.

In this case the District properly implead-ed the other taxing units, in accordance with the legislative mandate. The other units were duly served with citation, but instead •of meeting the spirit as well as the letter of the act, by setting up their claims for taxes, the State and County prayed that they be •dismissed from the suit, without prejudice to their claims, on the ground that in the opinion of their representatives the property would not bring an advantageous price at an early sale.

We are of the opinion that the trial court erred in dismissing the State and County without prejudice to their right to assert and establish a tax lien upon the property involved at their own convenience in the future, for, under § 2 of Art. 7345b, it was their “duty * * * to appear in said cause and file its claim for delinquent taxes against” the property involved. If those entities had any claims they should have asserted them and procured an adjudication; if they had no claims, then they should have disclaimed, so that unconditional judgment could have been rendered upon the claims actually asserted and adjudicated, and the property ordered sold without the burden of postponed liens, and conveyed “free and clear of all liens and claims for taxes against such property delinquent at the time. of judgment in said suit to any taxing -.unit •which was a party to said suit or which had been served with citation in said suit as required by this Act.” as provided in § 10 of Art. 7345b.

By the same token we think the trial court erred in decreeing that the purchaser of the property take title subject to the postponed “lien ,or claim” of the State of Texas and Frio County. We think the clear intent of the Legislature, as expressed in mandatory terms in Art. 7345b, was to require all taxing units having claims for taxes to assert and procure adjudication of their tax liens, if any they had, in the one action.

For that purpose the judgment will -be reversed and the cause' remanded, with directions that upon further proceedings in the trial court the claims, if any, of the State of Texas and County of Frio, be adjudicated and all taxing units concluded by final judgment.

Reversed and remanded, with instructions.


text:
    MARKWARD et al. v. MURRAH et al.
    No. 10650.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied Feb. 14, 1940.

      John L. Dodson, of Del Rio, for appellants.
    Wallace & Thurmond, of Del Rio, for appellees.
   SMITH, Chief Justice.

Oh August 11, 1931, J. R. Murrah, of 'Váí Verde County, executed and delivered his promissory note for $346.50 to C. A. Markward, and on February 8, 1932, he executed and delivered his note for $600 to Mrs. L. H. Clark and others.

Thereafter, on February 3, 1934, Murrah and wife conveyed all their property, real, personal and mixed, to their sons, J. E., R. H., Dan and Tol Murrah, for a recited consideration of ten dollars. That' property consisted of several thousand acres of land, several thousand head of sheep, and several thousand dollars’ worth of notes and other securities. By this conveyance the grantors divested themselves of every character of estate, leaving them wholly insolvent.

Murrah died intestate on February 13, 1934, ten days after said conveyance, leaving said notes unpaid and outstanding, except for small credits thereon.

No administration was had upon the estate of the deceased Murrah until it was instituted by Eula Markward, as executrix of the estate of C. A. Markward, then deceased, in the Probate Court of Val Verde County, inferentially in the early part of the year 1938.

In the meantime, however, on December 17, 1936, Eula Markward, executrix aforesaid, and the Clarks, each filed separate suits in the District Court of Val Verde County to recover the amount of the balance due upon said notes, and subject to the satisfaction of such amount the properties which the deceased Murrah and his wife had conveyed to their sons after the notes were executed and before Murrah’s death.' Those suits were brought against Mrs. Fannie Murrah, widow of the decedent maker of the notes, J. E., Dan, Tol and R. H. Murrah, grantees in said conveyance of the Murrah properties, and Mrs. Myrtle Poolej Mrs. Eno Fokes and Mrs. Matilda Bushager (joined pro forma fyy their respective husbands). The plaintiffs in that suit alleged that the named defendants, other than Mrs. J. R. Murrah, were “the heirs and only heirs at law,” of J. R. Murrah, deceased; that J. R. Murrah died intestate on or about February 13, 1934, and that there had been no administration upon his estate nor any necessity therefor, for the reason that, because of said conveyance of his estate prior to-his death, the decedent, J. R. Murrah, was hopelessly and totally insolvent at his death, and any attempt on the part of the' plaintiffs in said suits to collect their said debts through an administration “would be fruitless and wholly without any profitable results whatsoever, due to the fact that he, the said J. R. Murrah, deceased, left no estate, community or separate, to be administered through the probate court.” The plaintiffs further alleged in said suits that said conveyance was made by the decedent solely to defraud his creditors, including plaintiffs, and was void under the provisions of Arts. 3996, 3997, R. S. 1925, Vernon’s Ann. Civ. St. arts. 3996, 3997, whereby they were entitled to and prayed for judgment for their debt and cancelling said conveyance and subjecting the conveyed property to the payment of said debts.

Some time after the filing of said two suits, inferentially early in the year 1938, administration proceedings upon the estate of the deceased Murrah were instituted in the Probate Court of Val Verde County, apparently at the instance of Eula Mark-ward, one of the plaintiffs and the owner of one of said notes, who was appointed ad-ministratrix of said Murrah estate. Thereupon, Mrs. Markward and the Clarks, holders of the notes and plaintiffs in said two suits in the District Court, presented their claims, based upon said notes, to Ted Lang-ford, who by some undisclosed process had been substituted as administrator, in lieu of Mrs. Markward. Langford, as administrator, received and allowed both claims, which were listed in a report of the appraisers, who also reported the prior conveyance by the Murrahs of all their properties to their sons, as hereinabove set out. The appraisers further reported that by reason of such conveyance the decedent was made hopelessly insolvent, and died possessed of no property, separate or community. The probate judge accepted and approved the inventory, appraisement and list of claims so returned by the appraisers, which was likewise sworn to by Mrs. Mark-ward, as administratrix. The report was dated March 5, 1938, filed March 7th, and approved by the probate judge on March 5th. .

Thereafter, on July 21, 1938, Mrs. Fannie Murrah, surviving widow, and J. E., Dan, R. H. and Tol Murrah, sons of the decedent, as the latter’s heirs at law, filed their objections to the approval of said claims, and contested the same, upon the ground that they were barred by the statute of four years’ limitation (Art. 5529, R. S.1925) at the time-they were presented to and allowed by ' the administrator. To those objections the claimants answered, first, by general and special demurrers, and, second, by special answer setting out the filing and pendency of the suits in the district court, and alleging that the timely filing and continued pendency of those suits interrupted and stayed the course of limitation, wherefore, said claims were not barred, and should be approved by the pro-, bate court.

Upon a hearing in the probate court the claims were disapproved and rejected, and on appeal to the district court by claimants, the claims were again disapproved, and the claimants, Mrs. Markward and the Clarks, have prosecuted this joint appeal. The appeal seems to rest upon two contentions by appellants:

1. That the estate of the decedent, Mur-rah, was insolvent; that by reason of such insolvency the probate court had no jurisdiction of the proceeding, and that the order disapproving appellants’ claims was therefore void; that the probate court being without jurisdiction the district, court had none on appeal. This contention1 is presented in appellants’ first and second assignments of error.

2. That the timely filing of suits in the district court upon said claims stopped the running of limitation thereon, and therefore the probate court and district court erred in disapproving the claims upon the ground that they were barred by limitation when presented to and allowed by the administrator of the estate. This contention is presented in appellants’ third and final assignment of error. . .

The record does not show when or upon what showing the probate court assumed jurisdiction and ordered administration upon the Murrah estate. The record does show, however, that, that court had assumed jurisdiction and that the- estate was in course of administration, at the time appellants presented and procured allow;ance of their claims by the administrator, and filed them in the proceeding and sought approval thereof by the’probate judge. In this situation it must be presumed: that the probate court properly opened administration upon the estate, thereby acquiring jurisdiction thereover, aided by all presumptions in favor of the regularity and validr ity of the proceedings. 13 Tex.Jur. pp. 603,• 637, §§ 21, 52; Simpkins Administration of Estates (3d Ed.). § 7; Heath v. Layne, 62 Tex. 686.

The probate court having properly-opened the administration and adjudicated the question of necessity therefor, such adjudication took on the force and dignity of a final judgment, and was not subject to attack in this collateral proceeding instituted by appellants, in the course of the administration, to procure approval of their claims against the estate. Simpkins Administration of Estates (3d Ed.) § 8; 13 Tex.Jur. p. 638, § S3.

A further and relevant rule is that, when once properly assumed, the jurisdiction of the probate court continues until administration is legally closed, regardless of the continued existence or cessation of any necessity therefor. Simpkins, § 7.

So that, since in this case the probate court properly assumed jurisdiction by administering upon the estate, and administration had not been closed, that court had jurisdiction over appellants’ claims regularly presented, allowed by the administrator, and filed and prosecuted by claimants during the pendency of the proceeding.

Moreover, appellants affirmatively invoked that jurisdiction by voluntarily filing and prosecuting their claims and praying approval thereof by the probate court, and ought not now to be heard to challenge that jurisdiction. We overrule appellants’ first and second propositions.

Under their third assignment of error appellants contend that the timely filing and pendency of the two suits in the district court had the effect of stopping the running of the statute of limitation against the notes involved, and that therefore the trial court erred in holding that the claims based on those notes were barred. It is conceded that those claims were barred in the probate and district courts, unless the bar was averted by the institution and pen-dency of the two suits in the district court. We are of the opinion that the trial court properly held that the claims were barred. If the claims were such as the law requires to be submitted to the probate- court for approval, then no action lay to establish the claim in any other court until it had been presented to and disallowed by the administrator. Art. 3530, R.S.1925; Dempsey v. Gibson, Tex.Civ.App., 105 S.W.2d 423.

In this case the claimants themselves declared that their claims were so- classified when they voluntarily elected to submit them to the administrator for allowance, and induced him to allow them.

And when the administrator allowed the claims, and the claimants filed them in the probate court for approval, the jurisdiction of that court attached, and when that court disapproved the claims, the claimants properly pursued their only available remedy by appealing to the district court, and from that court to this. By this course appellants, as claimants, have by their own voluntary efforts obtained a final adjudication of their claims, through tribunals of their own selection, having undoubted jurisdiction, and appellants are therefore bound by that adjudication, even though, under their contentions, they may have had an available alternative course.

It being conceded that appellants presented their claims to the administrator more than five years after maturity, the trial court properly held that the claims were barred, under Art. 5529, R.S.1925.

The judgment is affirmed.


text:
    CLARK et al. v. MURRAH et al.
    No. 10651.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied Feb. 14, 1940.

      John L. Dodson, of Del Rio, for appellants.
    Wallace & Thurmond, of Del Rio, for appellees.
   SMITH, Chief Justice.

This case is closely related to cause No. 10650, Mrs. Eula Markward et al. v. Mrs. Fannie Murrah et al., this day decided by this Court, 136 S.W.2d 649.

The'appeal is from a judgment dismissing the suit of Mrs. L. H. Clark and her co-plaintiffs upon their refusal to amend after the general demurrer had been sustained to their third amended original petition.

The stricken pleading covers sixteen pages in the transcript and, therefore, because of its length, cannot be traversed in this opinion. In this summary we will set out only the substance of those allegations deemed to be material to this inquiry.

The -amended petition named, as plaintiffs, Mrs. L. H. Clark and others alleged to be the owners of the note in suit,, and Mrs. Fannie, Dan, J. E., R. H. and Tol Murrah, and Ted Langford, administrator of the estate of J. R. Murrah; deceased (and others not necessary to name here), as defendants. The parties will be referred to herein as plaintiffs and defendants, respectively, as in the court below.

In the preamble of said amended petition the history of the case prior to the filing of that pleading was recited, showing the nature of and the court’s rulings upon plaintiffs’ original, and first and second amended original, petitions in this case. Such recital of the allegations in and rulings upon abandoned pleadings, however, are not deemed relevant here. The only matter for consideration here is the cause of action alleged in plaintiffs’ third amended original petition, as tested by the general demurrer, which was sustained below.

For cause of action it was alleged in said amended petition that the named defendants, other than Langford, administrator of the estate of J. R. Murrah, deceased, were the only heirs at law of the decedent, J. R. Murrah, who died on February 13, 1934; that on February 8, 1932. Murrah, for a valuable consideration, executed and delivered to plaintiffs his promissory note for $600, and was legally bound to pay same; that the note was long past due and unpaid, “and defendants,, though often requested,” have failed and refused to pay same; that on February 3, 1934, Murrah, joined by his wife, conveyed all their property of whatsoever nature to the named defendants (other than administrator Langford) as a gift and without consideration, leaving the grantors totally insolvent; that J. R. Murrah remained so insolvent, and at the time of his death ten days later was possessed of no property whatsoever subject to execution; that the decedent fraudulently conveyed away said property for the purpose of defeating plaintiffs’ claims based on said note, and plaintiffs were entitled to judgment setting aside said conveyance and subjecting the properties therein conveyed to the payment of their said note, as provided in Arts. 3996, 3997", Vernon’s Ann.Civ.St. Arts. 3996, 3997, which they invoked.

Plaintiffs further alleged in their trial petition that after their institution of this suit, Mrs. Eula Markward, one of the plaintiffs, made application to the probate court of Val Verde County, in accordance with the provisions of Art. 3357, Subd. 6, R.S.T925, for appointment as administra-trix of the estate of the decedent, J. R. Murrah, and was duly appointed and qualified as such administratrix, but later resigned as such, and Ted Langford was duly, appointed and qualified as her successor and is now the “duly appointed, qualified and acting administrator of the estate of, said J. R. Murrah, deceased;” that the probate court duly appointed appraisers of said estate, and they duly made their report of inventory, appraisement and list of claims, which was sworn to by Mrs. Mark-ward, then acting as administratrix, and in which the claim of plaintiffs based on said note was listed, and in which, as alleged by plaintiffs, “it is shown that there was no property, community or separaté, belonging to said estate, and that said estate was totally insolvent by reason of the execution acknowledgement and delivery of said deed of February 3rd, 1934, as herein-before fully alleged and shown.”

It was further alleged that plaintiffs made due proof of their claim, as a valid claim against said estate, to Ted Langford, administrator, for allowance; that said administrator allowed said claim,' but refused payment thereof on the ground that he had no funds in hand with which to pay it,’ánd;probably would have none, due' to the conveyance, prior" to” Murráh’s 'death, of all his ' estate to: h'is. sons, defendants' herein, as" has .been previously alleged;'that by reason of the insolvency of the decedent, plaintiffs cannot hope to collect their claim through administration, and that plaintiffs “have néver at any time proceeded or attempted to proceed in said Probate Court in this behalf, except when such procedure became 'and was necessary to attempt to' comply with the, numerous orders, judgments arid' decrees of this Court rendered from' time to time in this cause. This being a ’ suit by creditors against fraudulent Vendees in a deed by an insolvent decedent to’ set aside the fraudulent conveyance and subject the property therein and thereby conveyed to the payment of a debt owing by .the decedent contracted prior tó the fraudulent conveyance, no character of administration on such insolvent estate, is nor has' the same ever been necessary, there being nothing to administer, the Administrator has no concern with it' either as a party Plaintiff or Defendant, con-i sequently any action táken by him or the Probate Court in approving,- allowing or, disapproving, disallowing or -rejecting such claim • on - the grounds of -limitations'- or otherwise is and has at all. such times been wholly -.unnecessary-' and without--any-if orce or effect whatsoever, satisfy the debt and the conveyance stands, or on the other hand, any over-plus realized from the sale of the property passes to the fraudulent vendees in the fraudulent conveyance and not to the estate of the said J. R. Murrah, deceased.”

It further appears from plaintiffs’ amended petition that plaintiffs’ claim in the probate court was contested by defendants. Murrah, and the probate judge sustained the contest and refused to approve the claim, upon the ground that it was barred by limitation when presented to and allowed' by the administrator.

In conclusion plaintiffs prayed in their stricken petition that “they have judgment against all Defendants establishing said debt and claim * * * for * * * all costs of suit against said Defendants,. Vendees in said deed of February '3rd, 1934, J. E. Murrah, Dan Murrah, R. H. Murrah and Tol Murrah, and all other parties interested adversely, setting aside, cancelling, annulling and holding • for naught said fraudulent conveyance of February 3rd, 1934, as to Plaintiffs, subjecting all of the property, real, personal and mixed, attempted to be therein and-.thereby con--veyed to the payment of said indebtedness, establishing and foreclosing their statutory lien on and against all of said property, real, personal and mixed described in and attempted to be so conveyed by said fraudulent deed as to all parties adversely interested in this cause, that said property be decreed to be sold as in such cases made and provided by law,” and for general and special relief.

The trial court sustained defendants’ general demurrer to plaintiffs’ said amended petition and upon plaintiffs’ refusal to amend dismissed the suit. Plaintiffs have appealed from the judgment of dismissal.

It is contended by plaintiffs that as the decedent died possessed of no property there was'no necessity for administration upon his estate, and the probate' court acquired no jurisdiction thereover; that having no jurisdiction, the action of that court disapproving-plaintiffs’ claim Was void and of no force or effect. We have held in the related cáse'RTo. 10650, Markwárd et al., v. Murrah, supra, that a similar contention must be overruled for the reason that the probate court, having previously assumed jurisdiction over the,.estate and adjudicated the question of .necessity for administration, its-orders'thereon were: finahand cannot be questioned in an incidental collateral proceeding instituted by claimants, in the course of the administration, to procure approval of their claim against the decedent's estate. We now reiterate that ’holding. By the same token, plaintiffs cannot question that adjudication in this collateral proceeding in the district court to establish their said claim.

Plaintiffs alleged in ’their petition that after the institution of this suit the trial court sustained exceptions to their original and successive amended petitions, upon the purported ground that plaintiffs had not first presented their claim to the administrator of the Murrah estate before suing thereon, whereupon plaintiffs “elected to amend” their pleading from time to time, and pending further proceedings in the district court did present their claim to such administrator in administration proceedings then pending in the probate court, and procured his allowance thereof, and further procured an adjudication of the claim by the probate court, which, upon final hearing, disapproved it, resulting in plaintiffs’ appeal from, the probate to the district court, and to this court from a like adverse judgment in the district court. These allegations in plaintiffs' trial petition, then, show, in effect, that while this suit was pending in the district court plaintiffs voluntarily sought and procured an adjudication of their claim in the probate court, in a valid administration proceeding then pending therein, wherein the probate court disapproved the claim, as shown in plaintiffs’ stricken pleading in the district court. The ultimate result is, then, that plaintiffs sought to recover in this case upon a claim which had been adversely adjudicated, at their instance, in another court of competent jurisdiction, upon a final judgment induced by plaintiffs’ own voluntary election to resort to that court for relief. That final judgment, so induced by their own election, was binding upon plaintiffs, and their attempt to question its validity and binding effect in the course of this collateral proceeding in another court cannot prevail. Plaintiffs contend that they were forced to resort to the probate court for adjudication of their claim because of the ruling of the district court sustaining exceptions to their pleadings therein. We cannot adopt this contention. When the trial judge sustained those exceptions, plaintiffs were confronted with the alternative of seeking relief in the probate court, and amending their pleadings showing resort to that relief, or of standing on the sufficiency of their original pleadings, refusing to amend, and appealing from the threatened dismissal of their suit, if such dismissal had followed. Plaintiffs, being squarely put to election,’ chose the former course, and having pursued it to- disaster, must abide by its,result.

Finally, under the facts stated, plaintiffs’ petition showed their suit to be one to set aside an’ alleged fraudulent conveyance and subject the property conveyed to the payment of a debt which a court of competent jurisdiction had held, in a final judgment not qúestióned in a direct proceeding for that purpose, does not exist, and in the face of this affirmative showing of no debt, plaintiffs’ petition showed no cause of action, since their right to cancel depended upon the establishment of the alleged debt.

In passing, we point out the fact that while they sought to recover of the administrator of the estate of R. H. Murrah ánd the latter’s. children as his heirs at law, plaintiffs alleged facts showing, affirmatively, that they had no cause of action against those defendants in those capacities. For it appeared from-their petition that the property plaintiffs sought to recover had been conveyed away by the decedent before his death, and therefore never passed to the administrator of his estate, nor did it pass to the children of the intestate by inheritance, but only by purchase, wherefore, plaintiffs’ own allegations disclosed that they had no cause of action against the administrator or the heirs of the intestate, as such. And in no event did plaintiffs state a cause of action against the several remaining defendants, for they, neither inherited nor purchased the property involved, and were shown by the stricken pleading to own or claim no interest therein. These facts, however, appear to be irrelevant to the inquiry, even though plaintiffs’ stricken pleading may be construed, when tested by the general demurrer, to state a cause of action for cancellation against the four named sons of the intestate, in their individual capacity.

For the reasons previously stated, the trial court did" not ’err • in sustaining the general demurrer to plaintiffs’ third amend’ed original petition, and the judgment must therefore ’ be affirmed. -


text:
    Mrs. Eula MARKWARD, Independent Executrix, Appellant, v. Mrs. Fannie MURRAH et al., Appellees.
    No. 10652.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied Feb. 14, 1940.
    John L. Dodson, of Del Rio, for appellant.
    Wallace & Thurmond, of Del Rio, for ap-pellees.
   SMITH, Chief Justice.

This is a companion case to cause No. 10651, L. H. Clark et al. v. Mrs. Fannie Murrah et al., this day decided by this Court 136 S.W.2d 652, the facts and questions of law in both cases being identical. Therefore, for the reasons stated in the opinion in the cited case, the judgment in this cause will be affirmed.


author: WALKER, Chief Justice.

text:
    GILLETTE MOTOR TRANSPORT, Inc., et al. v. BLAIR et al.
    No. 3579.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1940.
    Rehearing Denied Feb. 7, 1940.

      Vinson, Elkins, Weems & Francis, of Houston, and Pitts & Liles, of Conroe, for appellants.
    W. E. Bell, of Houston, and A. A. Turner, of Conroe, for appellees.
   WALKER, Chief Justice.

On the 21st day of November, 1938, R. D. Blair was killed in Montgomery county in a collision between an automobile which he was driving and á truck owned and operated at the time of the collision by appellant, Gillette Motor Transport, Inc. On the findings of the jury, on motion of appellees judgment was rendered on the 4th day of April, 1939, in favor of appel-lees, the surviving mother, wife and minor children of the deceased, against appellant for the sum of $11,000, and in favor of the surviving wife for- the sum of $1,750 for personal injuries suffered, by her in the collision. After the entry of the judgment all the appellees filed a tender of remittitur of $128 against the verdict of $11,000 damages found by the jury, and the surviving wife made a tender of remittitur of the full amount of damages awarded her. On the day their tenders of remittitur were filed, the court made thereon the following order: “That said offer of remitter be filed among the papers of this cause and entered upon the minutes of the court with respect to this proceeding to await the action of the Court of Civil Appeals for the Ninth Supreme Judicial District at Beaumont in this cause.”

The measure of damages in favor of appellees as a group was submitted to the jury by the following special issue and charge:

“Special Issue No. 17
“What amount of money,, if any, if paid now in cash, do you find from a preponderance of the. evidence will fairly and reasonably compensate the plaintiffs, Hulde E. Blair, widow, and Betty Jane Blair, Joyce LaVerne Blair, Beatrice Blair and John Morris Blair and Joe Dorris Blair, the five children, and Mrs. Lou Blair, mother, for the death of R. D. Blair, who was husband and father and son to plaintiffs as respectively designated above, for the pecuniary loss, if any, which they have sustained respectively as aforesaid?
“Answer in Dollars and Cents
“Answer-
(a) “In arriving at the damages, if any, for Mrs. Hulde E. Blair, for the loss of her husband, R. D. Blair, you may consider such sum of money, if any, as being paid now will reasonably compensate her for the pecuniary loss she has sustained and in determining that yoú may take into consideration the probable value of the contributions and maintenance and support of R. D. Blair, deceased, would have made to his wife, Hulde E. Blair, had he not died, and the value of the personal services R. D. Blair, deceased, would have rendered to Hulde E. Blair had he lived.
(b) “In arriving at the damages, if any for the children of R. D. Blair; that is, for Betty Jane Blair, Joyce LaVerne Blair, Beatrice Blair, John Morris and Joe Dorris Blair, you may consider from the evidence what would be the probable amount and value of the pecuniary aid, if any, which the said R. D. Blair would probably have contributed after the date of his death, if he had not died,' to the plaintiffs during their minority, or to either of them, and the pecuniary value, if any, of the counsel and advise which the said Betty Jane Blair, Joyce LaVerne Blair, Beatrice Blair, and John Morris and Joe Dorris Blair would probably have received during their minority from the said R. D. Blair if- he had not died; and you will apportion the damages, if any, so found, between said children in such shares as to you may seem just, stating in your answer to this question the amount, if any, you find for each of the children and so write in the blanks for that purpose on this page.
(c) “By the term ‘pecuniary benefits’ or ‘pecuniary aid’ as used in this charge is meant not only money but everything that can be valued in money, including as to said minor children, the reasonable money value of the care, education and mental and moral training that they might have expected to receive until they reached the age of 21 years from their father, R. D. Blair, had he lived. '
(d) “In arriving at the damages, if any, to Mrs. Hulde E. Blair for the death of her husband, R. D. Blair, you will consider the expense of his funeral and burial, if paid by Mrs. Hulde E. Blair, in addition to her reasonable expectation of support and maintenance and contribution from him had he lived as before mentioned.
(e) “In arriving at the damages, if any, for Mrs. Lou Blair, mother of R. D. Blair, deceased, you will consider the pecuniary benefit in the way of contribution to her by him which she had.the reasonable expectation of receiving had he lived.
(f) “You will not consider grief or distress of mind due to the death of R. D. Blair as an element of damage.
(g) “The damages, if any, which you have answered above in total sum, you will now apportion among the plaintiffs, as follows :
“To Mrs. Hulde E. Blair for loss of husband $-
“To Betty Jane Blair, daughter of R. D. Blair $-
“To Joyce LaVerne Blair, daughter of R. D. Blair $-
“To Beatrice Blair, daughter of R. D. Blair $-
“To John Morris Blair, son of R. D. Blair $-
“To Lou Blair, mother of R. D. Blair $-
“To Joe Dorris Blair, son of R. D. Blair $-.”

To special issue No. 17 and its explanatory charge, appellant reserved the following exceptions:

. “(8) Because nowhere in the court’s charge or in connection with such special issue does the court instruct the jury that in arriving at their answer to such special issue they shall not take into consideration as an element of damage the loss to plaintiffs of R. D. Blair’s society.”
“(10) Because nowhere in the court’s charge, or in connection with said issue, does the court instruct the jury that in arriving at their answers to said special issue they shall not take into consideration the loss of companionship of R. D. Blair.”
“(12) Because, in defining of pecuniary benefits or pecuniary aid, the court instructs the jury that pecuniary aid means ‘everything that can be valued in money,’ and said definition is too broad, in that it includes grief, loss of society, loss of companionship, and mental and physical suffering, and these elements in law are not included in the definition of pecuniary benefits or pecuniary aid.”

These exceptions go only to the point that the court should have instructed the jury not to consider as elements of damage in favor of appellees the loss to them of the society and companionship of the deceased. We overrule the exception that, under the doctrine of Isbell v. Lennox, 116 T.ex. 522, 295 S.W. 920, the exceptions were too general. They clearly pointed out the error assigned — that the charge failed to instruct the jury not to consider the loss of the society and companionship of R. D. Blair as elements of damage.

It is .our conclusion that the charge was affirmatively erroneous in not excluding from the consideration of the jury the elements of damage assigned by these exceptions — the loss of the society and companionship of the deceased. The general rule on the affirmative exclusion of specific elements of damage is thus stated by 33 Tex.Jur. 214:

“In an action for wrongful death it is important that the jury should not only be charged to allow a recovery as authorized by the language of the statute, but that they should be instructed also as to elements for which no recovery can be allowed. An instruction is erroneous which is so worded that the jury may deduce therefrom that they are authorized to award damages for other than the pecuniary loss sustained by the plaintiff through the death.
“The charge should expressly exclude from the jury’s consideration the elements of grief, loss of society, mental pain and anguish; and the court’s failure to do so is affirmative error. If objection is made to the charge upon the ground that such elements are not excluded, the defendant is not required to request further instructions excluding them; and this is the rule although the defendant made no objection to the verdict as being excessive.
“It is error also to charge the jury that they may now allow anything by way of consolation or for any sorrow or anguish, without at the same time charging that nothing may be allowed for loss of companionship.”

However, the authorities recognize that this general rule of exclusion has application only where the measure of damage as submitted is broad enough to include the elements of damage complained of by the exceptions. Thus, the Commission of Appeals, Judge Critz writing the opinion, in Thurman v. Chandler, 125 Tex. 34, 81 S.W.2d 489, 492, approved the following charge: “Defendants objected to the above issue on the ground: (a) That the same ivas too broad and permitted the jury to consider elements of damages not plead; (b) that it permitted the. jury to find damages in law not recoverable by the wife and children of the deceased in an action for death; (c) that it gave the jury no guide in determining the proper compensation for the loss of support and maintenance; and (d) that it failed to instruct the jury that no recovery could be had for grief, sorrow, and loss of companionship.” (Italics ours.)

In overruling the exception, Judge Critz said: “It is our opinion that the question as submitted was not affirmatively erroneous. It submitted the issue of damages for ‘loss of support and maintenance’ only. It said nothing about grief or sorrow, but confined the matter of damages to ‘loss of support and maintenance.’ Our special issue statutes prohibit general charges and confine the charge of the court to the submission of ‘such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render the verdict on such issues.’ All of the objections to this charge, except the one under (d) above, were too general to call the court’s attention to any supposed defect of omission or commission in the charge, and the objection under (d), as worded, would indicate to the court that defendants desired a general charge, not a mere definition or explanation. The matter as presented shows, no error on the part of the trial court. On another trial, if defendants desire the phrase ‘support and maintenance’ defined, they may properly so indicate to the court.”

Texarkana & Ft. S. Ry. Co. v. Frugia, 43 Tex.Civ.App. 48, 95 S.W. 563, 567, writ refused, is also in point. In that case the court said: “The eighth assignment of error complains of the tenth paragraph of .the charge, which declares the measure of damages as follows: ‘If in the event you find for plaintiff under the instructions herein given you, you mil assess the damages for such a sum of money as, if paid now, would fairly compensate the plaintiff and said minor children for the pecuniary loss, if any, sustained by reason of the death of the said Zeb Frugia’ — then follows a form of the verdict. It is urged against this part of the charge that ‘it does not exclude from .the jury the idea that they could allow, as pecuniary loss, damages for loss of the society of the deceased, nor damages for grief plaintiffs may have suffered from the death of deceased, and the jury is not by the charge restrained from allowing damages for such loss.’ The charge is not subject to the objection, for it logically excludes everything except compensation for pecuniary loss, and can by no. principal of construction be held to include loss of society of the deceased or grief plaintiffs may have suffered from his death. What is not comprehended, expressly or implied, in a proposition is logically, excluded.” (Italics ours.) No definition was given of “pecuniary loss”; no words of inclusion were given, and therefore it. was not necessary to submit words of exclusion.

We quote as follows from Chicago, R. I. & G. Ry. Co. v. Trippett, 50 Tex.Civ.App. 279, 111 S.W. 761, 762: “The charge on the measure of damages, to which the first error is assigned, was as follows: ‘As to the plaintiff, Mrs. W. W. Trippett, you are instructed to return a verdict in her favor, and assess her damages at such a sum of money as in your judgment from all the facts and circumstances in the case will reasonably and fairly compensate her for the pecuniary aids and benefits she had a reasonable expectation of receiving from said W. W. Trippett had he lived, also, the reasonable and necessary expense .incurred on account of the burial of deceased; but you will exclude from your consideration in estimating the damages any mental distress, if any, incurred - because of his death.’ It is insisted that this charge was misleading, in that it excluded compensation for mental distress without also ' excluding compensation' for loss of society and companionship, in support of which the following cases are cited: International & G. N. Ry. Co. v. McVey [99 Tex. 28], 87 S.W. 328, and International & G. N. Ry. Co. v. Glover, Tex.Civ.App., 88 S.W. 515. The charge condemned in the McVey Case is distinguishable, we think, from the charge above quoted, in that,, instead of distinctly limiting the compensation to ‘pecuniary aids and benefits,’ it directed the jury to allow the plaintiffs such amount as would ‘fully compensate them for the actual damages, if any, sustained by them, as shown by the evidence,’ and such as would be ‘fairly proportioned to the injury sustained,’ which was followed by the following language, held to be misleading in that connection: ‘But you will not allow the plaintiffs anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as result of such death.’ We are unable to so distinguish the charge in question from the charge condemned in the Glover Case, but that decision was rendered by the Court of Civil Appeals for the Third District on motion for rehearing in deference to the opinion of the Supreme Court in the McVey Case, in which the decision of the same Court of Civil Appeals had just been reversed. In other words, the Court of Civil Appeals felt constrained in the Glover Case to follow the decision of the Supreme Court in the Mc-Vey Case, but we are inclined to the opinion that the charges in the two cases were distinguishable, and, while the charge in the case before us is perhaps not to be distinguished from the charge in the Glover Case, it is, we think, distinguishable from the charge in the McVey Case, and, while we are thus perhaps. brought in conflict with the decision of the Court of Civil Appeals as finally rendered on motion for rehearing in the Glover Case, we are inclined to agree with the views expressed by that court on original hearing in both of those cases but are not in conflict with the decision of the Supreme Court in the McVey Case, if there is ground for the distinction we have made between the charge in. that case and the one above quoted.” (Italics ours.)

We have quoted extensively from these cases because appellees rely upon them in-support of their charge.

Appellees contend in the case at bar that the measure of damages was submitted simply on the issue of “pecuniary loss,” and that “pecuniary loss” means “a loss of money or of something by which money or something of money value may be acquired.” The abstract definition of the term “pecuniary loss” is not the point in this case because, as appears on the face of the charge, the court summarized certain elements as constituting pecuniary loss on the issues made by Mrs. Hulde Blair; and certain elements as constituting “pecuniary aid” or “pecuniáry benefits” on the issues made by the children. The court did not rest his charge at that point but undertook affirmatively to define pecuniary benefits or pecuniary aid, enumerating in an affirmative way the elements as set out in section (c) of his definition. The charge did not even rest at that point but, having enumerated the affirmative elements to be considered by the jury, the court then undertook by section (f) to withdraw and exclude from the consideration of the jury certain other elements— “grief or distress of mind due to the death of R. D. Blair.” In Gulf C & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260, 261, condemning the charge: “The jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided among the persons entitled to the benefit to the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict”, Judge Gaines, speaking for the Supreme Court, said: “It is important therefore, in an action of this sort that the jury should not only be given instructions to allow a recovery as authorized by the language of the statute, but that they should also be instructed for what elements no recovery can be allowed.”

The following charge was given in International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S.W. 328, 329: “If you find from the evidence and under the charges of the court for the plaintiffs, you will assess their recovery of damage at such amount, if paid now, fully compensate them for the actual damages, if any, sustained by them, as shown by the evidence, and such as is fairly proportioned to the injury sustained, if any; but you will not allow the plaintiffs anything by way of solace for the death of said Edward Mc-Vey, or for any sorrow or anguish suffered by them as result of such death.” Condemning that charge, Judge Gaines, speaking for the Supreme Court, said: “This instruction, as we construe it, means merely to exclude a recovery by the plaintiffs of any compensation for the grief caused by the death of the husband and father. It does not exclude compensation for the loss of the society or companionship of the deceased, which, in the opinion of some, if not all, of the jurors, may have constituted the most serious injury to the wife at least. Such being the case, to exclude one improper element of the damages and not to exclude another tends rather to aggravate than to alleviate the tendency of the charge to mislead. ‘The mention of one thing is the exclusion of another,’ is a rule in the construction of written instruments. It is no less a rule of common sense, and one which suggests itself to the ordinary mind, when construing language, either written or spoken, to which it is applicable. For example, let us suppose that during the deliberation of the jury in this case a suggestion had been made as to giving compensation for the grief of the plaintiffs on account of the death of their relative, the answer would have been that the court had instructed the jury not to give damages on that account. Had the loss of society next been suggested, the answer would have been as ready and as conclusive that the court had not excluded that matter by its charge, and therefore the jury should consider and include damages, if any, on that score.”

The following charge was before the Commission of Appeals in Hines v. Kelley, 252 S.W. 1033, 1034: “If your verdict is in favor of plaintiff, Saletia Kelley, you will assess her damages at such sum as you believe from the evidence will fairly compensate her for her alleged damages, if any, shown by the evidence to have been sustained by her by reason of the negligent injury-and death of the said Claude Kelley by the defendant. But in estimating such damages, if any, you will consider her pecuniary loss only.” Citing the McVey and Farmer cases, supra, Judge McClendon writing the opinion for the Commission of Appeals, condemning this charge, said: “It will be seen from the above quotations from the McVey and Farmer Cases that the Supreme Court has held distinctly that a general charge, couched in the language of the statute, is misleading and affirmatively erroneous, if the elements of grief and loss of society are not expressly excluded from the jury’s consideration. The statute does not use the expression ‘pecuniary loss.’ In determining what elements are and what elements are not embraced in the statute, the Supreme Court refers to the former as pecuniary losses, and the holding of the Supreme Court, in applying this expression to the elements it is held to embrace, seems to accord with the decisions in other jurisdictions, where recovery is expressly limited by statute to pecuniary loss or damage. Carter v. Railway Co., 76 N.J.L. 602, 71 A. 253, 19 L.R.A., N.S., 128, 16 Ann.Cas. 929. In passing upon the sufficiency of the charge, however, the Supreme Court clearly indicates that the improper elements themselves must be excluded — specifically, and not by some general expression descriptive of those elements, which may not be clearly understood by one unfamiliar with the legal interpretation of that expression. To the trained legal mind there is a marked distinction between loss by a child of its parents’ care, nurture, and education, and loss of the parents’ society and companionship, from the viewpoint of their pecuniary value, although each may be equally incapable of reduction to a monetary equivalent by any accurate method or certain rule or criterion. The former has a tangible value in fitting the child for the duties and responsibilities of life; while the value of the latter rests more properly in the emotions, sentiments, and feelings. We hardly think that the average juror could be expected, without aid from the court, to give to the expression ‘pecuniary loss’ a meaning which would necessitate, in a proper cas;e, the drawing of such distinction. To one possessed of the common feelings and sentiments of humanity, which control the actions of all well-disposed persons, the grief of a mother for an. obedient and dutiful son, upon whom she is dependent, and the loss -of his society and companionship, are among the most potent and compelling realities. It was the clear purpose of the Supreme Court in the McVey and Farmer Cases to hold, we think, that a charge which did not expressly exclude these elements from the jury’s consideration was misleading and afforded ground for reversal.”

It is clear to us that by its definition of “pecuniary loss,” including certain elements of damage and excluding others, the trial court brought his definition directly within the condemnation of the Mc-Vey, Farmer and Kelley cases, supra, and that it was affirmative error, on appellant’s exceptions, not to exclude from the consideration of the jury as elements of damage the loss to appellees of the society and companionship of the deceased.

For an additional reason, it was error not to exclude loss of society and companionship; having entered the field of exclusion, it was the duty of the court to exclude all items which, on the face of the record, could have been considered by the jury in estimating damages. That point is made clear by Judge Gaines in the Mc-Vey case.

From what we have said, it follows that the judgment for $11,000 in favor of ap-pellees, against which appellant’s exceptions were directed, must be reversed and the cause remanded for a new trial.

Appellant’s second point is against the following argument to the jury by ap-pellees’ counsel. We give appellant’s fourth and fifth assignments of error:

“4. The defendants should be granted a new trial herein because Mr. W. E. Bell, one of the attorneys for plaintiffs, in his opening argument to the jury, argued to the jury as follows:
“ ‘And you will have to find the answers to the issues to determine whether or not there was any negligence on the part of the Gillette Motor Transport, and, if there was no negligence on the part of the trucking company, that widow will get no damages,’ the same being an appeal to the jury’s sympathy, highly prejudicial, .inflammatory in its nature, advised the jury of the effect of their answers, and appealed to the sympathies of the jurors to answer said issues in order that plaintiffs might recover.
“5. These defendants should be granted a new trial herein because Mr. W. ,E. Bell, one of the attorneys for the plaintiffs, in his opening argument to the jury, argued to the jury as set out in the above and foregoing Ground No. 32; whereupon, counsel for defendants objected to such argument and moved the court to instruct the jury not to consider such argument, but, nevertheless, the said Mr. Bell continued to argue to the jury, as follows:
“ ‘The widow and children have certain rights the law gives them, and it is up to-you to decide whether or not they have-those rights or not.’ ”

We overrule, without discussion, the contention that the argument brought forward by the fourth assignment was “an-appeal to the jury’s sympathy, highly prejudicial, and inflammatory in its nature.”’ The only serious point that could be made against the argument is the suggestion that it advised the jury of the effect of its answers. This point has given us serious consideration, but on a careful review of the entire charge we are convinced that the point is not well taken. The charge submitted the issues of negligence plead' by appellees against appellant, the issues of contributory negligence plead by appellant against appellees, and the issue of unavoidable accident. So,' had the jury found all the issues of negligence in appellees’ favor, yet appellees could have lost their case on-the answers to the other issues. The jury could not have construed the argument of appellees’ counsel as a statement to them that the findings of negligence against appellant would constitute, independent of the other issues, the basis of a judgment against appellant. Promptly, the court instructed the jury on appellant’s objection not to consider this argument. If the argument was erroneous, considering its nature and the nature of the court’s charge, the error was cured by the court’s instruction.

No serious contention could be made that the argument complained of by the fifth assignment was erroneous. The widow and children did have certain rights given them by law and their rights were committed to the jury by the' court’s charge. The dullest man living would have known that it was a part of his prerogative as a .juror to decide, in the language-of the argument, “whether or not they have-those rights or not.”

This brings us to the tender of remittitur filed by appellees-. The reversal of the-judgment to the extent of $11,000 includes the tender of remittitur of the $128. The-tender of the remittitur by the surviving wife of the sum of $1,750 for damages for-the personal injuries suffered by her rests on different grounds. The tender was made by Mrs. Blair, but not accepted by the court; the order of the lower court sent the tender to this court for review. Appellant has not briefed any proposition to the effect that the judgment in favor of Mrs. Blair for $1,750 was in any respect erroneous, except in so far as its assignment right rest upon improper argument of appellees’ counsel, which we have overruled. Nor has appellant made any assignment against the refusal of the court to accept the tender, nor against the order of the court sending the tender to this court for review. It follows that the tender of remittitur cannot avail appellant in the condition of the record, and as to the $1,750 the judgment of the lower court must stand as if no tender had been made. As to this item, no error is shown.

The judgment of the lower court is reversed and remanded as to the item of $11,000; affirmed as to the item of $1,750. Reversed and remanded in part; affirmed in part.

On Rehearing.

Appellees’ motion for rehearing is overruled. Under and in compliance with Article 2227, R.C.S., appellees filed the following remittitur: “Now comes the plaintiff, Hulde E. Blair, by her attorneys of record, and offers to remit all of the damage awarded to her under Special Issue No. 17-A, same being in the amount of Seventeen Hundred Fifty ($1750.00) Dollars. Plaintiff also offers to remit the sum of One Hundred Twenty Eight and 25/100 ($128.00) Dollars, being the amount plead as costs of funeral expenses and as an item of damage under Special Issue No. 17, and asks that this amount' be taken from the amount awarded to her under Special Issue No. 17. These offers to remit under Special Issue No. 17-A are made without admitting error in submitting Special Issue No. 17 or Special Issue No. 17-A.” Under Article 2227 the trial court had no discretion to accept, reject, or modify the íemittitur. The filing of the remittitur invoked section 3 of Article 2227: “Execution shall issue for the balance only of such judgment.”

We grant appellants’ motion for rehearing as agkinst our order affirming the judgment for the amount of $1,750, and on that issue we grant appellants’ prayer “that the judgment heretofore rendered in this cause be set aside, and that this cause be reversed in its entirety and remanded for a new trial.”